Punjab-Haryana High Court
Sri Krishan vs Silver Line Builders Pvt Ltd And ... on 25 February, 2021
123
In the High Court of Punjab and Haryana, at Chandigarh
1. Regular Second Appeal No. 30 of 2021 (O&M)
Sri Krishan
... Appellant(s)
Versus
Silver Line Builders Pvt. Ltd. and Others
... Respondent(s)
AND
2. Regular Second Appeal No. 31 of 2021 (O&M)
Ajay and Another
... Appellant(s)
Versus
Silver Line Builders Pvt. Ltd. and Others
... Respondent(s)
Date of Decision: 25.02.2021
CORAM: Hon'ble Mr. Justice Anil Kshetarpal.
Present: Mr. Hemant Bassi, Advocate
for the appellant (In RSA-30-2021).
Mr. Vaneet Soni, Advocate
for the appellants (In RSA-31-2021).
Mr. Ashish Aggarwal, Senior Advocate
with Ms. Aashna Aggarwal, Advocate
for respondent No.1-Caveator.
Anil Kshetarpal, J.
It has been brought to the notice of the Court that defendant
No.1 along with his three other brothers had entered into a separate
agreements to sell with respect to adjoining pieces of land in favour of the
plaintiff-company. The plaintiff-respondent (the company) filed five suits for
specific performance of the various agreements to sell. All the remaining
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2021.03.18 14:53
suits were also ordered to be decreed. Before the first Appellate Court, the
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integrity of this document
Regular Second Appeal No. 31 of 2021 (O&M)
parties settled the dispute as the plaintiff-company agreed to pay the balance
amount of the sale consideration as also additionally undertook to allot one
flat each.
Learned counsel for the respondents has submitted that similar
offer has been given to learned counsel for the appellants herein. However,
learned counsel for the appellants have stated that they have spoken to the
appellant(s), but the offer is not acceptable and want the Court to decide the
appeals on merits.
Two different sets of defendants have filed these regular second
appeals against the concurrent findings of fact arrived at by the Courts below
while decreeing the suit for specific performance of the agreement to sell.
Some facts are required to be noticed.
The respondent-plaintiff filed the suit claiming that the
defendant No.1-Sri Krishan son of Sh. Narain Singh (appellant in RSA-30-
2021) agreed to sell 15 kanals 8 marls of land @ ₹ 50,00,000/- per acre for
a total sale consideration of ₹96,25,000/- on receipt of ₹ 9,66,500/- as
earnest money. Out of which ₹7,21,875/- was paid through cheque drawn in
favour of defendant No.1 on 15.12.2005, whereas the remaining amount was
paid in cash.
It has come on record that defendant No.1 transferred the
property in question in favour of defendant no.2 and 3 (his own sons) vide
release (transfer) order dated 18.09.2006, but the plaintiff came to know
about this fact on 12.12.2006. As per the agreement to sell, the sale deed was
agreed to be executed and registered on or before 14.12.2006. The plaintiff-
DEEPAK KUMAR BHARDWAJ
2021.03.18 14:53 Company on 22.11.2006 issued a notice, calling upon defendant No.1 to
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integrity of this document
Regular Second Appeal No. 31 of 2021 (O&M)
come and execute the sale deed as per agreement to sell. However, there was
no response.
The plaintiff instituted the suit on 26.02.2007. On notice, the
defendants contested the suit and it was claimed that apart from the written
agreement there was an oral understanding that defendant would be paid the
price @ ₹3,00,00,000/- per acre. The receipt of payment of ₹7,21,875/-
made through cheque was admitted. However, the receipt of remaining
payment through cash was denied. Defendant No.1 also pleaded that Hari
Singh, one of the witness of margin got the agreement signed from him.
Defendant No.2 to 5 pleaded that the land is ancestral and therefore,
defendant No.1 is not entitled to sell it.
As noticed above, both the Courts, on appreciation of evidence,
have found that the plaintiff has successfully proved its case and therefore,
entitled to a decree for specific performance of the agreement to sell. The
plaintiff examined Sharad Mohan Parsad, a bank official as well as attesting
witness of the agreement to sell, Ram Krishan.
This Court has heard learned counsel for the parties at length
and with their able assistance, perused the paper books of both the appeals.
Learned counsel appearing for the appellants-defendant No.2
and 3 submits that in the written statement, it was pleaded that the property
is ancestral and therefore, the defendants had no right to sell. He contends
that both the Courts below have neither framed issue on this aspect nor have
adverted to this fact. He further submits that the appellant has filed an
application for leading additional evidence before the First Appellate Court,
DEEPAK KUMAR BHARDWAJ
2021.03.18 14:53 which had been wrongly dismissed.
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integrity of this document
Regular Second Appeal No. 31 of 2021 (O&M)
On the other hand, learned counsel representing defendant
No.1-appellant contends that the plaintiff has failed to prove its readiness
and willingness which is sine qua-non for decreeing the suit for specific
performance. He further contends that defendant No.1 also filed an
application for permission to lead additional evidence in order to prove his
presence in the office i.e. Delhi Transport Corporation on 15.12.2015, which
has been wrongly dismissed. Defendant No.1 has also filed an application
for permission to lead additional evidence so as to produce bank account
statement of the plaintiff-company in this Court.
At this stage, it would be appropriate to extract the issues
framed by the trial Court:-
"1. Whether defendant no.1 had agreed to sell the suit land
to the plaintiff for a total sale consideration of
Rs.96,25,000/- and received a sum of Rs.7,21,875/- by
way of cheque dated 15.12.2005 and Rs.2,40,625/- in
cash as earnest money as alleged? OPP
2. Whether the plaintiff had always been ready and willing
to perform his part of the contract and is still ready to do
so? OPP
3. Whether the plaintiff has not come before the Court with
clean hands and has concealed the true and material
facts from the Court? OPD
4. Whether the plaintiff is esstopped from claiming any
relief by its own act, conduct, omission, commission,
DEEPAK KUMAR BHARDWAJ
2021.03.18 14:53 acquiesces and latches? OPD
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Regular Second Appeal No. 31 of 2021 (O&M)
5. Whether the plaintiff has no cause of action to file the
present suit? OPD
6. Whether the suit of the plaintiff is not maintainable?
OPD
7. Whether the suit of the plaintiff has not been property
valued both for the purposes of Court fee and
jurisdiction? OPD
8. Relief".
Both the Courts below have decided the suit as well as the first appeal on the
aforesaid issues. Now, let us examine the arguments of learned counsels for
the appellants. Before the first Appellate Court, three applications for
leading additional evidence were filed. One application was filed by Sri
Krishan, the contracting party, for permission to prove that on 15.12.2005,
he was not present in the village as he was on duty with the Delhi Transport
Corporation. The first Appellate Court has dismissed the application on the
grounds that the defendants were already granted nine opportunities as also
they have failed to fulfill the ingredients of Order XLI Rule 27 CPC. It
would be noted here that the time and place at which the agreement to sell
was entered, loses its significance, particularly when, defendant No.1 has
himself admitted that the agreement to sell was got signed from him by Hari
Singh. Therefore, there is no dispute with regard to the defendant No.1
having signed the agreement to sell. The defendant No.1 is working as a Bus
Conductor with the Delhi Transport Corporation. He has not only signed the
agreement to sell in English, but has also thumb marked it. Hence, even if
DEEPAK KUMAR BHARDWAJ
2021.03.18 14:53 the Duty Register is permitted to be produced in additional evidence, it will
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Regular Second Appeal No. 31 of 2021 (O&M)
not advance the case of the defendant. The defendant No.1 has also filed
another application for permission to lead additional evidence in the regular
second appeal. Through the application, defendant No.1 wants to produce
the bank accounts statement of the plaintiff-company to prove that the
plaintiff did not had sufficient amount to pay. In the considered view of this
Court, such application is wholly misconceived because the plaintiff, while
leading evidence, produced its statement of bank account as Ex.PW.4/B. Still
further, at this stage, the additional evidence should not be allowed,
particularly when it is not proved that the plaintiff-company is having only
this account.
Defendant No. 2 to 5 filed two applications for permission to
lead additional evidence before the first Appellate Court. In the first
application, the defendants sought permission to produce the copies of the
revenue record to prove that the property is ancestral. It may be noted here
that neither any issue on this aspect was framed by the trial Court nor the
defendants led sufficient evidence before the Court below. Still further,
defendant No.2 to 5 also filed another application for permission to lead
additional evidence. In the aforesaid application, it has been asserted that the
property is co-parcenary joint hindu family property and therefore, Sri
Krishan has no right to sell the same. It is well settled that a Karta has a right
to sell the property for legal necessity. It is also well settled that the co-
parceners have no right to seek injunction on alienation. Reliance, in this
regard, can be placed on the judgment of the Supreme Court in Sunil Kumar
and Others v. Ram Parkash and Others (1988) 2 SCC 77. Still further, Sri
DEEPAK KUMAR BHARDWAJ
2021.03.18 14:53 Krishan's sons have a right to challenge the alienation by a separate suit.
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Regular Second Appeal No. 31 of 2021 (O&M)
Hence, in such circumstances, particularly when before both the Courts
below the aforesaid aspect was never seriously pressed, this Court does not
find it appropriate to examine the issue in detail.
In yet another application for permission to lead additional
evidence, the defendants No.2 to 5 have sought permission to produce
evidence to prove that the land measuring 55 kanals 9 marlas including the
suit land was given on lease to Chintal India Private Limited for a period of
two years. Hence, defendant No.2 and 3 want to prove that the property is
not required by the plaintiff for itself. It would be noted here that this is not
the case of the defendants in the written statement. There is no issue on this
aspect. Therefore, the evidence sought to be led is beyond the pleadings and
therefore, cannot be permitted. Therefore, the applications for leading
additional evidence have been correctly dismissed by the first Appellate
Court.
Next argument of learned counsel is to the effect that the
plaintiff has failed to prove his readiness and willingness. It would be noted
here that both the Courts have found that the plaintiff was always ready and
willing to perform its part of the contract. Still further, the plaintiff filed the
suit within 2½ months from the agreed date on which the sale deed was to
be executed. The plaintiff specifically pleaded that it was ready to get the
sale deed executed on payment of balance sale consideration. Before filing
the suit, the plaintiff also served notice on defendant No.1. Still further, it is
the defendant No.1 who had transferred the property in favour of his
children on 18.09.2006 i.e. before the target date for execution of the sale
DEEPAK KUMAR BHARDWAJ
2021.03.18 14:53 deed. Hence, there is no merit in both the appeals.
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Regular Second Appeal No. 31 of 2021 (O&M)
However, since the balance amount of the sale consideration
has remained with the plaintiff throughout, therefore, the decree for specific
performance is modified to the extent that the plaintiff shall be liable to pay
the balance sale consideration along with interest @ 9% from the date the
amount as per the agreement became payable till the date of its deposit
before the Executing Court as per the decree passed by the trial Court.
Disposed of.
The miscellaneous application(s) pending, if any, in both the
appeal shall also stand disposed of.
(Anil Kshetarpal)
Judge
February 25, 2021
"DK"
Whether speaking/reasoned :Yes/No
Whether reportable : Yes/No
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2021.03.18 14:53
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