Smt. Kamlesh vs Sumer Khan @ Sumera and Others

Mahesh Grover, J.—This Regular Second Appeal by the plaintiff is directed against the judgments and decrees dated 21.1.2000 and 21.10.2008 passed respectively by the Additional Civil Judge (Senior Division), Mobile Court at Punhana (referred to hereinafter as �the trial Court'') and the Additional District Judge, Nuh (described as �the first appellate Court''), whereby the suit filed by the plaintiff/appellant was partly decreed and her appeal was dismissed.

The plaintiff-appellant filed a suit for specific performance seeking enforcement of an agreement to sell dated 17.04.1996, which was executed for the sale of the suit property for a total consideration of Rs. 3,80,000/- out of which Rs. 1,10,000/- were paid as earnest money. The sale deed was to be executed on 30.5.1996.

It is the case of the appellant that on 30.5.1996, she along with her husband was present before the office of Sub Registrar. The respondents also came present. But since the sale deed could not be executed, they agreed to get it executed at a subsequent date. The suit was filed on 4.1.1999 seeking the aforesaid relief.

In response to the averments made in the plaint, the defendants/respondents denied the execution of the agreement to sell and also denied the case of the appellant in toto.

The following issues were framed by the learned Trial Court:

Whether on dated 17.4.1996 the defendants entered into the agreement to sell in respect of the suit land for a consideration of Rs. 3,80,000/- and received Rs. 1,10,000/- as an earnest money from the plaintiff? OPP.

Whether the plaintiff is ready and was ready to perform her part of contract? OPD.

Whether defendant No. 3-Hamid was minor on the date of execution of the agreement to sell, if so to what effect? OPD.

Relief.

Both the Courts concluded that the agreement to sell has been validly executed between the appellant and the respondents. But denied the relief of specific performance of the agreement to the appellant on the ground that the other ingredients such as willingness and readiness to perform her part of the agreement were not established, on the basis of cogent evidence on record. The Courts below, therefore, partly decreed the suit by resorting to the provisions of Section 20 of the Specific Relief Act, 1963 (for short ''the Act'') and directed the refund of the earnest money to the appellant.

Aggrieved by the said findings, the appellant is in appeal.

Learned Counsel for the appellant has contended that the suit has been filed within a period of limitation on 4.1.1999 and this fact alone is sufficient to show that the readiness of the appellant to perform her part of the agreement was always there. He further contends by placing reliance on the judgment of the Hon''ble Supreme Court in Balasaheb Dayandeo Naik (Dead) through LRs and Ors. v. Appasaheb Dattatraya Pawar 2008(1) RCR (Civil) 893, that this period cannot be considered to be an inordinately long period so as to be construed to be a period, which would render the agreement to sell inexecutable. He further contends that there is cogent material on record to show that on 30.5.1996, she was present in the office of Sub Registrar and that the respondents also came present and from this fact, it should be inferred that the appellant was always ready to perform her part of the agreement. He, thus, contends that the findings recorded by the Courts below regarding this aspect of the matter, denying the relief of execution of the agreement, are erroneous and liable to be set aside.

On the other hand, learned Counsel for the respondents contended that there is no material to show that the appellant ever came present before the office of the Sub Registrar. He contended that findings of the Courts below have been rightly recorded on this aspect of the matter and therefore, the appeal deserves to be dismissed.

After hearing learned Counsel for the parties and perusing the impugned judgments as also the records of the case, I am of the opinion that there is no infirmity in the impugned judgments. The appellant''s positive case is that she along with her husband was present before the office of Sub Registrar on 30.5.1996. This fact, however, has not been fortified by any credible evidence on record. No affidavit, executed before the Sub Registrar, has been furnished, neither any other material has been shown. In this view of the matter, the plea of the appellant does not inspire any confidence. This when coupled with the fact that there was no attempt made by the appellant to get the date for execution of the sale deed extended also lends credibility to the fact that the appellant was never keen to get the agreement executed. The suit was also filed on 4.1.1999, after more than 2� years. In these circumstances, when the appellant failed to appear before the Sub Registrar and also failed to get the date for execution of the sale deed extended, this period cannot be considered to be a period which is not fatal to the case of the appellant.

Section 20 of the Act cast a duty on the Court to examine the facts and circumstances to see that if the agreement to sell has been rendered inexecutable or to see whether the circumstances justify the taking of recourse to an alternative relief. Then such a discretion if exercised on sound principles, which form the basis of reasoning, which is depicted in the orders of the Court, should not be ordinarily interfered with, unless the same is shown to be based on perverse reasons.

In the given set of circumstances, I am of the opinion that the Courts below have rightly exercised their discretion u/s 20 of the Act.

Consequently, the appeal is dismissed being devoid of any merit.