Joga Singh & Ors vs Parkash Kaur on 25 November, 2013

Punjab-Haryana High Court Punjab-Haryana High Court Joga Singh & Ors vs Parkash Kaur on 25 November, 2013 R.S.A. No. 4129 of 2013 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 4129 of 2013 [O&M]. Date of Decision: November 25th, 2013 Joga Singh and others .... Appellants Versus Smt. Parkash Kaur .... Respondent CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? Present Mr. Mohit Jaggi, Advocate, for the appellants. VIJENDER SINGH MALIK, J. This is a regular second appeal brought by the defendants. They have challenged the judgment and decree dated 28.10.2011 passed by learned Additional Civil Judge [Senior Division], Balachaur as well as the judgment and decree dated 1.2.2013 passed by learned District Judge, Shaheed Bhagat Singh Nagar. The claim of the plaintiff, who brought the suit through Satwinder Singh, her son as a special attorney, is as under:The defendants are owners in possession of land measuring 10 kanals 19 marlas. On 1.8.2007, they entered into an agreement to sell the same in favour of the plaintiff at the rate of Rs.5,40,000/- per acre and received a sum of Rs.1,60,000/- as earnest money against the total Prakash Som 2013.11.29 11:29 I attest to the accuracy and integrity of this document R.S.A. No. 4129 of 2013 2 ..

Indian Kanoon - http://indiankanoon.org/doc/135995043/

Joga Singh & Ors vs Parkash Kaur on 25 November, 2013

price of Rs.7,39,125/-. They also agreed to receive a sum of Rs.1,00,000/- more as earnest money by 1.10.2007 which was duly paid by the plaintiff to the defendants on 1.10.2007 regarding which an endorsement was made at the back of the agreement. Remaining sale price was to be paid at the time of execution and registration of the sale deed which was agreed to be done by 10.2.2008. The plaintiff has been ready and willing and is still ready and willing to perform her part of the contract by payment of the balance sale consideration which was ready with her alongwith the amount required to be spent on execution and registration of the sale deed, but the defendants are headstrong persons and they did not disclose to the plaintiff at the time of entering into agreement that they had already entered into the agreement to sell the suit land in favour of one Jasbir Singh on 20.1.2006. The factum about the existence of the agreement dated 20.1.2006 came to the notice of the plaintiff when she received notice of civil suit No. 343 of 2007 filed by Jasbir Singh against Joga Singh etc. in which the plaintiff was made a party. Civil suit No.343 of 2007 was dismissed on 20.12.2008 as the defendants entered into a compromise with Jasbir Singh, who in turn withdrew the said suit. The defendants filed their written statement in that suit on 10.1.2008 in which they have admitted the execution of the agreement to sell in favour of the plaintiff on 1.8.2007. After dismissal of the said suit, the plaintiff started approaching the defendants with the request to execute the sale deed, but the defendants started avoiding the same and rather, refused to execute the sale deed in favour of the plaintiff. They also threatened to alienate the suit land to a third party at a higher rate. Prakash Som 2013.11.29 11:29 I attest to the accuracy and integrity of this document R.S.A. No. 4129 of 2013 3 .. The defendants, on notice, filed their written statement resisting the claim of the plaintiff. They have taken a number of preliminary objections. According to them, the plaintiff was not ready and willing to perform her part of the contract. It is further averred that she was not having the remaining sale consideration to make payment to the defendants as well as the expenses to be incurred on execution and registration of the sale deed. It is further averred that on the other hand, the defendants were ready and willing to execute the sale deed in favour of the plaintiff on receipt of the remaining sale consideration. It is further averred that the defendants were in dire need of money and they remained approaching the plaintiff to get the sale deed executed and registered on payment of the balance sale consideration within the stipulated period. It is averred in the reply on merits that the suit is not filed through an authorized person. It is averred that time was of the essence of the contract. It is further averred that it was mentioned in the agreement of sale that in case, the plaintiff did not get the sale deed executed upto 10.2.2008, the earnest money shall stand forfeited. It is claimed that in view of the terms of the agreements to sell, the agreement stood rescinded and earnest money was forfeited. It was denied that the plaintiff has been ready to perform her part of the contract. It is claimed that on 12.2.2008, 10.2.2008 and 11.2.2008 being holidays, the defendants remained present in the office of Sub Registrar, Balachaur to get the sale deed registered, but the plaintiff did not arrive. The other averments of the plaintiff are denied and the suit is prayed to be dismissed. On the pleadings of the parties, the following issues were Prakash Som 2013.11.29 11:29 I attest to the accuracy and integrity of this document
Indian Kanoon - http://indiankanoon.org/doc/135995043/ 2

Joga Singh & Ors vs Parkash Kaur on 25 November, 2013

R.S.A. No. 4129 of 2013 4 .. framed by learned trial court. "1. Whether plaintiff is entitled to possession by way of specific performance of agreement to sell dated 01.08.2007? OPP 2. Whether plaintiff was ready and willing to perform his part of contract and is still ready and willing to perform his part of contract? OPP 3. Whether in the alternative, plaintiff is entitled to recovery of Rs.5,20,000/- as prayed? OPP 4. Whether plaintiff is estopped by his act and conduct from filing the present suit? OPD 5. Whether suit is not properly valued for the purpose of court fee and jurisdiction? OPD 6. Relief." Taking evidence of the parties and hearing learned counsel representing them, learned trial court decreed the suit of the plaintiff for possession by way of specific performance of the agreement of sale. The appeal preferred by the defendants-appellants failed before learned District Judge, S.B.S. Nagar vide judgment and decree dated 1.2.2013. Learned counsel for the appellants has contended that time was of the essence of the contract in this case. According to him, the defendants had entered into a contract of purchase of land from some other person and were to purchase that land with the sale consideration to be received from the plaintiff. According to him, it is the plaintiff who was not ready and willing to perform her part of the contract. According to him, as the time was of the essence of the contract, the failure of the Prakash Som 2013.11.29 11:29 I attest to the accuracy and integrity of this document R.S.A. No. 4129 of 2013 5 .. plaintiff to get the sale deed executed in her favour was sufficient for the defendants to forfeit the earnest money and take the contract of sale as rescinded. There can be no denial to the fact that the time was of the essence of the contract. However, the facts of the case are such where the failure of the plaintiff to appear before the Sub Registrar on the date fixed for registration of the sale deed would not prove that she was not ready and willing to perform her part of the contract. Jasbir Singh, setting up an agreement of sale dated 20.1.2006 executed in his favour by the defendants, filed civil suit No. 343 of 2007 against Joga Singh and others including the plaintiff. In the said suit, the appellants filed their written statement on 10.1.2008. The said suit remained pending upto 20.12.2008 when under a compromise, Jasbir Singh withdrew the said suit. Pendency of the suit brought by Jasbir Singh with respect to the same land would show that a cloud had been cast on the transaction of sale entered into between the defendants and the plaintiff. Till that suit was pending, there could be no question of the plaintiff getting the sale deed executed in her favour. The suit was dismissed as withdrawn on 20.12.2008 and within 3 or 4 days, the plaintiff had brought this suit. This clearly shows that the plaintiff had been eager or rather ready and willing to perform her part of the contract.
Indian Kanoon - http://indiankanoon.org/doc/135995043/ 3

Joga Singh & Ors vs Parkash Kaur on 25 November, 2013

Learned trial court and learned Ist appellate court have, thus, not erred in any manner in passing decree in favour of the plaintiff for possession by way of specific performance of agreement of sale. Moreover. no questions of law much less substantial questions of law Prakash Som 2013.11.29 11:29 I attest to the accuracy and integrity of this document R.S.A. No. 4129 of 2013 6 .. appear to be arising in this appeal. Consequently, the appeal has no merit and is dismissed in limine. (VIJENDER SINGH MALIK) JUDGE November 25th, 2013 som Prakash Som 2013.11.29 11:29 I attest to the accuracy and integrity of this document

Indian Kanoon - http://indiankanoon.org/doc/135995043/