Kamini Ahluwalia & Another vs Devi Saran ...Non-Applicant/
2021 Latest Caselaw 3674 HP

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           IN THE HIGH COURT OF HIMACHAL PRADESH
                           SHIMLA




                                                                           .
                                    OMP No.174 of 2020 in Civil Suit No.41 of





                                    2020

                                    Date of Decision: August 6, 2021.





    Kamini Ahluwalia & another                                ...Applicants-plaintiffs.

                                             Versus
    Devi Saran                                         ...Non-applicant/defendant.

    Coram:


    The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.

    Whether approved for reporting?1 Yes

    For the Applicants/
    Plaintiffs:                     Mr.Rakesh Kumar Thakur,                           Advocate,
                                    through Video Conferencing.


    For the Non-applicant/
    Defendant:             Mr.Lalit Kumar Sehgal, Advocate, through
                           Video Conferencing.




    Vivek Singh Thakur, J (oral)

This application under Order 39 Rules 1 and 2 read

with Section 151 of the Code of Civil Procedure (in short 'CPC')

seeking interim stay against the non-applicant/defendant has

been preferred by the applicants-plaintiffs alongwith main suit for

Specific Performance of agreement to sell dated 15.06.2013

attested on 22.06.2013 executed between applicants-plaintiffs

(vendees) and non-applicant/defendant (vendor), for selling the

suit land by non-applicant/defendant to applicants-plaintiffs for

1 Whether reporters of the local papers may be allowed to see the judgment?

consideration of `1,30,00,000/-. As per agreement, `15,00,000/-

had been received by the non-applicant/defendant at the time of

execution of agreement and balance amount of consideration

.

was to be paid at the time of execution of sale deed for which

last date was fixed as 15.07.2018.

2. It is case of the applicants-plaintiffs that apart from

`15,00,000/- as earnest money, non-applicant/defendant has also

received a sum of `2,00,000/- on 20.06.2013, `5,00,000/- on

30.09.2013 as a part of the sale consideration, and non-

applicant/defendant, in total, has received a sum of `25,00,000/-

from the applicants-plaintiffs with assurance that sale deed

would be executed well before the appointed date i.e.

15.07.2018.

3. It is case of the applicants-plaintiffs that before

expiry of appointed date i.e. 15.07.2018, applicants-plaintiffs had

requested the non-applicant/defendant orally as well as through

registered letter with acknowledgement for executing the sale

deed, but non-applicant/defendant has expressed his inability to

execute and register the sale deed before 15.07.2018 and lastly

had refused to receive the letter/notice dated 10.07.2018 issued

to him (non-applicant/defendant) to execute the sale deed. In

addition, applicant-plaintiff No.1 had talked with non-

applicant/defendant telephonically for execution of sale deed and

non-applicant/defendant had finally agreed to execute and

register the sale deed on 16.07.2018 as 15.07.2018 was Sunday.

Accordingly, as per applicants-plaintiffs, applicant-plaintiff No.1

alongwith balance sale consideration visited the office of Sub-

Registrar (Rural) at Shimla and remained in the Complex of Sub-

Registrar from 10.30 a.m. to 4.45 p.m. on 16.07.2018 and she

.

had also sworn in affidavit to this effect which was duly attested

by the Executive Magistrate, Shimla (Rural), who was also

exercising powers of Sub-Registrar. But on that day, non-

applicant/defendant did not turn up. Thereafter, on 17.07.2018,

applicant-plaintiff No.1 personally met non-applicant/defendant

to execute the sale deed, but non-applicant/defendant flatly

refused and ask for money as the value of the property,

according to non-applicant/defendant, had increased manifold

since execution of agreement in the year 2013. Thereafter,

applicants-plaintiffs had again requested non-applicant/

defendant personally as well as telephonically on 18.07.2018 to

execute and register the sale deed, but non-applicant/defendant

despite having received a sum of `25,00,000/- from the

applicants-plaintiffs avoided execution and registration of sale

deed on one pretext or the other and had threatened to transfer

the property to third party for escalation of price of the property.

4. It is claim of the applicants-plaintiffs that they are

ready and willing to perform their part of contract, but non-

applicant/defendant is not willing to perform his part and on

account of omission and commission on the part of non-

applicant/defendant, causing delay to execute and register the

sale deed, applicants-plaintiffs have suffered loss.

5. It is also submitted on behalf of the applicants-

plaintiffs that with ulterior motive and malafide intention, to

defeat lawful right of the applicants-plaintiffs, non-

.

applicant/defendant has threatened to sell property to third party

at higher price and to create complication to the applicants-

plaintiffs, he is mounting pressure on them to give effect to his

nefarious and ill designs to extort extra amount from the

applicants-plaintiffs than the amount agreed between the parties

and, therefore, applicants-plaintiffs are entitled for specific

performance of agreement of sale and in case sale deed is not

executed in favour of the applicants-plaintiffs, they would suffer

irreparable loss and grave hardship, and further that there is

every possibility of decree of suit in favour of the applicants-

plaintiffs and, therefore, suit property deserves to be preserved

and protected during pendency of the suit land by restraining the

non-applicant/defendant from alienating, selling, disposing,

encumbering or changing the nature or interfering in any manner

in the suit land i.e 1/3 share measuring 1-27-79 hectares out of

Khata/Khatoni No.3/3 to 5 kita 55 total measuring 3-83-79

hectares and 1/8 share measuring 00-57-70 hectares out of land

comprised in Khata/Khatoni NO.15/26 to 34 kitas 40 measuring 4-

61-62 hectares, situated at Up Mohal Majhar, Tehsil and District

Shimla (Rural) H.P.

6. For continuation and confirmation of interim stay

during pendency of the suit, learned counsel for the applicants-

plaintiffs has placed reliance upon judgments passed by the

Supreme Court in Civil Appeal Nos. 3523-3526 of 2010, titled as

A.R. Madana Gopal Etc. Etc. vs. M/s Ramnath Publications Pvt.

Ltd. And Another, decided on 09.04.2021; Civil Appeal Nos. 3574

.

and 3575-3577 of 2009, titled as B. Santoshamma and Others vs.

D. Sarala and Others, decided on 18.09.2020; CS(OS) 1284/2011

& I.As. 8529/2011, 15754/2011, 15755/2011, 11621/2018,

12884/2018, titled as Om Prakash Aggarwal vs. Raj Kumar Mittal,

decided on 28.02.2019.

7. Grant of interim stay and continuation thereof, has

been opposed by the non-applicant/defendant. It is submitted on

behalf of the non-applicant/defendant that suit has been filed to

pressurize and blackmail the non-applicant/defendant with

deliberate and intentional misstatement of facts and

concealment of material facts with malafide intention to avail

undue advantage by misusing machinery of law to extort money

from the non-applicant/defendant for which applicants-plaintiffs

are not legally entitled. Execution of agreement dated

15.06.2013 and attested on 22.06.2013 are not in dispute,

however, it is case of the non-applicant/defendant that as per

agreement, non-applicant/defendant had to get land partitioned

and thereafter sale deed was to be executed and last date for

which was fixed as 15.07.2018 and as a matter fact land was

partitioned in the year 2015-16 and immediately thereafter, non-

applicant/defendant had approached and contacted the

applicants-plaintiffs first of all with a request to come forward for

execution of sale deed as non-applicant/defendant was in dire

need of money, but in the year 2016, applicants-plaintiffs had

refused to perform their part for execution of sale deed by saying

that there was time to execute the same and in 2018 for the

.

reason that applicant-plaintiff No.1 had resiled from the deal and

applicant-plaintiff No.2 was not in a position to pay entire sale

consideration and during this year i.e. 2018 applicant-plaintiff

No.2 had conveyed to non-applicant/defendant that applicants-

plaintiffs had no objection for selling suit land by non-applicant/

defendant to any third party and non-applicant/defendant was

given free hand to do so. At that time, applicants-plaintiffs had

also requested for refund of earnest money of `8,00,000/- after

selling suit land by the non-applicant/defendant.

8. It is further case of non-applicant/defendant that

though for default on the part of the applicants-plaintiffs earnest

money was to be forfeited, but taking into consideration the

relation with husband of applicant-plaintiff No.2, non-

applicant/defendant had agreed to refund the said amount and

thereafter non-applicant/defendant had sold the portion of land

to Budhi Singh on 22.06.2018 and to Vikas on 03.09.2019 and

thereafter, had also entered into a sale agreement dated

06.08.2020 with third party namely Yogendra Kumar Neena for

consideration of `1,74,00,000/- and has received earnest money

of `2,00,000/- from him and further that as per agreement

entered into with third party, non-applicant/defendant had also

initiated process of exchange of some portion of land, as agreed,

with adjoining land owners and the third party was and is ready

and willing to get sale deed registered in their favour, but same

could not be executed and registered due to interim order

passed by this Court in present suit.

.

9. It is submitted on behalf of non-applicant/defendant

that though it is stated in the agreement to sell that an amount

of `15,00,000/- was received by the non-applicant/defendant

from applicants-plaintiffs as earnest money against total

consideration of `1,30,00,000/-, but as a matter of fact, non-

applicant/defendant has received only `8,00,000/- i.e. `5,00,000/-

through Cheque No.55643 which was credited to the non-

applicant/defendant's bank account on 17.06.2013 and

remaining amount of `3,00,000/- was transferred through two

Cheques bearing numbers 712101 dated 20.06.2013 amounting

to `2,00,000/- and 024578 dated 02.07.2013 amounting to

`1,00,000/- of Punjab National Bank and Bank of India

respectively and the said amount was credited in the account of

non-applicant/defendant on 02.07.2013 and 13.07.2013

respectively.

10. It is further case of the non-applicant/defendant that

applicants-plaintiffs had also issued two more cheques i.e.

Cheque No.024576 dated 26.06.2013 for a sum of `1,00,000/- of

Bank of India, The Mall, Shimla and Cheque No.710479 dated

09.07.2013 amounting to `1,00,000/- of Punjab National Bank,

SAD Complex, Kasumpati, Shimla, but these cheques could not

be encashed as Cheque No.024578 was returned by the Bank for

overwriting thereon, whereas, Cheque No.710479 was

dishonoured for insufficient funds. Whereupon, non-

applicant/defendant had brought the aforesaid facts about

dishonouring of these two cheques in the notice of applicants-

.

plaintiffs with a request to make payment of balance amount of

`7,00,000/- of earnest money. Applicants-plaintiffs, despite

assuring payment of balance earnest money at the earliest, did

not pay it ignoring repeated requests and visits of non-

applicant/defendant to applicants-plaintiffs and, as such,

applicants-plaintiffs have paid only `8,00,000/- to the non-

    applicant/defendant
                      r                 despite   the       fact    that     an     amount        of

`15,00,000/- has been shown in the agreement to sell to have

been paid to the non-applicant/defendant. Receipt of

`25,00,000/-, in total, as earnest money, has been denied

categorically.

11. It is submitted on behalf of the non-

applicant/defendant that applicant-plaintiff No.2 had expressed

her inability to make payment of balance amount of

consideration for backing out of applicant-plaintiff No.1 from the

deal, and thus non-applicant/defendant, for dire need of money,

had sold portion of land to Budhi Singh in June 2018 and another

portion of land has been sold by the non-applicant/defendant

after fourteen months thereafter to one Vikas vide sale deed

dated 03.09.2019. Applicants-plaintiffs did not come forward at

any point of time as they were not ready and willing to purchase

the land possibly for want of sufficient funds and ultimately they

had given freedom to non-applicant/defendant to sell land to

anybody and in this background, some portion of land has been

sold by the non-applicant/defendant and further that after lapse

of more than two years after the last date for execution of sale

.

deed, non-applicant/defendant has entered into sale agreement

dated 06.08.2020 with third party for selling remaining portion of

suit land and in furtherance thereto, he has initiated process for

exchange of some portion of land with adjoining land owners,

including Geeta Ram and Jeet Ram.

12. It is further submitted on behalf of the non-

applicant/defendant that applicants-plaintiffs were neither ready

and willing nor having capability and capacity to purchase the

suit land on or before 15.07.2018 and even thereafter,

applicants-plaintiffs keep on sleeping for a period of about two

years. Even if, it is considered that first sale deed dated

22.06.2018 is prior in time to the last date of execution of sale

deed fixed in the agreement to sell entered between the

applicants-plaintiffs and non-applicant/defendant, remaining

portion of suit land has been sold or agreed to be sold by the

non-applicant/defendant to third parties after lapse of more than

one and two years respectively and, therefore, there is change in

circumstances and possession of the non-applicant/defendant

and availability of the suit land and in case applicants-plaintiffs

were ready and willing to purchase the suit land, they would have

come immediately after expiry of date fixed for execution of sale

deed in their favour. It is submitted that for delay in filing suit, at

this stage, for considerable change in the status of the suit land,

applicants-plaintiffs are not entitled for interim relief and as

incorporated in the agreement to sell in question the earnest

money paid by the applicants-plaintiffs is liable to be forfeited.

.

13. It is also submitted on behalf of the non-

applicant/defendant that subsequent purchasers have not been

arrayed as party to the suit in whose favour right in the property

has approved, on account of sale deeds and agreements to sell.

14. Learned counsel for the non-applicant/defendant has

placed reliance upon judgment passed by the Supreme Court in

Civil Appeal No(s). 9346 of 2019, titled as Ambalal Sarabhai

Enterprise vs. KS Infraspace LLP Limited and another; decided on

06.01.2020. He has also relied upon judgment dated 16.10.2020

passed by this High Court in CMPMO No.544 of 2017, titled as

Sumit Kumar vs. Avneet Patyal and others; judgment passed by

the Punjab and Haryana High Court in Malkiat Singh (deceased

by L.Rs.) vs. Om Prakash (deceased by L.Rs.) and another,

reported in AIR 2004 Punjab and Haryana 253; and judgment

dated 28.02.2019 passed by High Court of Delhi in CS(OS)

1284/2011 & I.As. 8529/2011, 15754/2011, 15755/2011,

11621/2018, 12884/2018, titled as Om Prakash Aggarwal vs. Raj

Kumar Mittal.

15. From the facts on record, it is evident that though

applicants-plaintiffs have claimed that applicant-plaintiff No.1

remained present alongwith sale consideration in the office of

Registrar (Rural) at Shimla on 16.07.2018 and contacted

defendant on 17.07.2018 and 18.07.2018 for execution of sale

deed, but thereafter they surreptitiously remained silent for

about more than two years which cast doubt about their claim

that they were ready alongwith sale consideration for execution

.

of sale deed in July 2018. No reason has been assigned for

remaining silent for about two years. During these two years,

non-applicant/defendant has changed his position by selling the

portion of land to one Vikas on 03.09.2019 and thereafter, has

also entered into a sale agreement dated 06.08.2020 with third

party for a consideration of `1,74,00,000/- for remaining portion

of the land with further agreement to have some portion of his

land exchanged with other villagers for which he has also

initiated the process. Agreement to sell, subject matter of

present suit, was executed in the year 2013 and thereafter title

of the land, after partition, was clear in the year 2015-16 and the

last date for execution of sale deed was 15.07.2018. Thereafter,

applicants-plaintiffs waited for two years for filing suit for specific

performance which tilts balance of convenience in favour of the

non-applicant/defendant by creating doubt about claim of

applicants-plaintiffs.

16. Undoubtedly, there is price escalation in the value of

the land in question as evident from agreement to sell dated

06.08.2020 entered between non-applicant/defendant Yogendra

Kumar Neena for a consideration of `1,74,00,000/- for remaining

portion of the land. Though applicants-plaintiffs have claimed

that they are having sufficient means for making payment of

balance amount of consideration, but no documentary proof

thereof or any other material has been placed on record to

substantiate the said plea.

17. Considering entire facts and circumstances of the

.

case placed before me and ratio of law laid down in the

judgments referred by learned counsel for the parties, I am of the

considered opinion that applicants-plaintiffs are not entitled for

interim stay as prayed. Accordingly interim stay granted vide

order dated 13.08.2020 is vacated. As purchasers and

prospective purchasers of the suit land have also been arrayed

as defendants in the main suit, it is needless to say that all

parties including them shall abide by final outcome of the suit.

18. Application is disposed of in aforesaid terms.

(Vivek Singh Thakur), Judge.

August 6, 2021 (Purohit)