Punjab-Haryana High Court
Sodagar Singh vs Parshotam Kumar And Ors on 20 March, 2024
Author: Alka Sarin
Bench: Alka Sarin
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RSA-4280-2019 (O&M)
120
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-4280-2019 (O&M)
Reserved on : 29.02.2024
Date of Decision : 20.03.2024
Sodagar Singh ....Appellant
VERSUS
Parshotam Kumar and Others ....Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present: Mr. Parvinder Singh, Advocate for the appellant.
ALKA SARIN, J.
1. The present appeal has been preferred by the plaintiff-appellant
aggrieved by the judgments and decrees dated 30.09.2015 and 10.07.2019
passed by the Trial Court and the First Appellate Court, respectively.
2. Brief facts relevant to the present lis are that the plaintiff-
appellant filed a suit for possession by way of specific performance of
agreement to sell dated 30.08.1995 of Shop-cum-Flat No.8, New Anaj
Mandi, Kharar ad measuring 15 feet x 80 feet partially built executed by the
predecessor-in-interest of the defendant-respondents - Ramji Dass - who
subsequently died on 21.03.1996, after executing sale deed of the suit
property in favour of the plaintiff-appellant on payment of balance sale
consideration after deducting Rs.1,00,000/- already paid by the plaintiff-
integrity of this order/judgment.
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appellant to Ramji Dass and in the alternative a decree for Rs.2,00,000/-
with interest. It was the case set up by the plaintiff-appellant that no final
date was set for the execution of the sale deed, rather it was settled that
Ramji Dass would procure no objection certificate (NOC) and thereafter the
sale deed would be executed. It was further the case that Ramji Dass
predecessor-in-interest of the defendant-respondents kept postponing the
procurement of NOC, hence, the sale deed could not be executed. After his
death, the plaintiff-appellant approached the legal heirs of Ramji Dass who
again promised to get NOC and execute the sale deed. Further amount of
Rs.70,000/- was alleged to have been received by defendant-respondent
No.1 and a receipt was also alleged to have been executed. It was further
averred that the plaintiff-appellant was always ready and willing to perform
his part of the contract. On notice, the defendant-respondents filed their
written statement and denied the execution of the agreement to sell. It was
further stated that in the year 1995 the value of the suit property was
Rs.10 Lacs and that there was no reason for them to have agreed to sell the
suit property for Rs.1,23,000/-. It was further the stand taken that the suit
was time-barred. It was further averred that at the time of filing of the suit
i.e. in the year 2008, the value of the suit property was more than Rs.One
crore. Replication was filed wherein the contents of the written statement
were denied and those of the plaint were reiterated.
3. On the basis of the pleadings of the parties the following issues
were framed :
I. Whether the plaintiff is entitled to the relief of
integrity of this order/judgment.
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possession as owner by way of specific performance of
agreement to sell dated 30.8.1995 ? OPP
1A. Whether the suit is within limitation ? OPP
II. Whether the plaintiff is entitled to the relief of
permanent injunction as prayed for ? OPP
IIA. Whether the plaintiff is entitled for the recovery of
Rs.2,00,000/- i.e. double of the earnest money of Rs.1 lac
with interest from the defendants ? OPP
III. Whether the suit is not maintainable in the present
form ? OPD
IV. Relief.
4. The Trial Court vide judgment and decree dated 30.09.2015
held the plaintiff-appellant entitled to the alternate relief of recovery of
Rs.1,00,000/-. Aggrieved by the same, an appeal was preferred by the
plaintiff-appellant before the First Appellate Court which appeal was
dismissed vide judgment and decree dated 10.07.2019. Hence, the present
regular second appeal.
5. Learned counsel for the plaintiff-appellant would contend that
once the defendant-respondents had denied the agreement to sell they could
not have questioned the readiness and willingness of the plaintiff-appellant.
It is further the contention that the findings of both the Courts that the
plaintiff-appellant was not ready and willing to perform his part of the
agreement to sell are illegal and perverse. In support of his contentions he
has relied on Sant Singh vs. Amarjit Singh [2015(2) PLR 497] to contend
integrity of this order/judgment.
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that once the execution of agreement to sell was denied, the defendant could
not have raised the plea of readiness and willingness. Further reliance has
been placed upon the judgment of Lal Chand vs. Tek Chand [2012 (3)
PLR 736] on the same proposition of law. The learned counsel has further
argued that the discretion to be exercised by the Court has to be in
accordance with sound and reasonable judicial principles. In support of his
arguments, reliance has been placed on the judgment of the Supreme Court
in the case of Zarina Siddiqui Vs. A. Ramalingam @ R. Amarnathan
[2015 (1) SCC 705].
6. I have heard the learned counsel for the plaintiff-appellant.
7. In the present case the agreement to sell itself was entered into
on 30.08.1995 and the suit was filed on 17.12.2008. The argument of the
learned counsel that the discretion exercised by the Courts ought to have
been based on reasonable judicial principles and that the discretion exercised
by both the Courts was not an exercise in accordance with sound and
reasonable judicial principle deserves to be rejected. There can be no quarrel
with the proposition of law as laid down in the case of Zarina Siddiqui
(supra). However, in the present case it needs to be seen that the agreement
to sell pertains to the year 1995 and the suit itself was filed in the year 2008
i.e. after more than 13 years of the execution of the agreement. The ground
given for not filing the suit for such a long time was that the defendant-
respondents had not obtained an NOC from the concerned Department. It
has come on the record that it was admitted by the plaintiff-appellant in his
cross-examination that he never sent any notice to the defendant-respondents
integrity of this order/judgment.
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qua obtaining an NOC from the concerned Department and calling upon
them to execute the sale deed in his favour. At the time of passing of the
judgment and decree by the First Appellate Court, 25 years had elapsed
since the execution of the agreement. The Supreme Court in the case of
Saradamani Kandappan vs. S. Rajalakshmi & Ors. [2011 (4) RCR
(Civil) 130)] has held as under :
"24. The principle that time is not of the essence of
contracts relating to immovable properties took shape in
an era when market value of immovable properties were
stable and did not undergo any marked change even over
a few years (followed mechanically, even when value
ceased to be stable). As a consequence, time for
performance, stipulated in the agreement was assumed to
be not material, or at all events considered as merely
indicating the reasonable period within which contract
should be performed. The assumption was that grant of
specific performance would not prejudice the vendor-
defendant financially as there would not be much
difference in the market value of the property even if the
contract was performed after a few months. This principle
made sense during the first half of the twentieth century,
when there was comparatively very little inflation, in
India. The third quarter of the twentieth century saw a
very slow but steady increase in prices. But a drastic
change occurred from the beginning of the last quarter of
the twentieth century. There has been a galloping
inflation and prices of immovable properties have
increased steeply, by leaps and bounds. Market values of
properties are no longer stable or steady. We can take
judicial notice of the comparative purchase power of a
integrity of this order/judgment.
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rupee in the year 1975 and now, as also the steep
increase in the value of the immovable properties between
then and now. It is no exaggeration to say that properties
in cities, worth a lakh or so in or about 1975 to 1980,
may cost a crore or more now.
XXX XXX XXXX
27. XXX XXX
Therefore there is an urgent need to revisit the principle
that time is not of the essence in contracts relating to
immovable properties and also explain the current
position of law with regard to contracts relating to
immovable property made after 1975, in view of the
changed circumstances arising from inflation and steep
increase in prices. We do not propose to undertake that
exercise in this case, nor referring the matter to larger
bench as we have held on facts in this case that time is the
essence of the contract, even with reference to the
principles in Chand Rani and other cases. Be that as it
may."
8. Both the Courts have exercised the discretion while granting the
alternative relief. This Court does not find any reason to interfere in the
discretion exercised by both the Courts. The argument of the learned counsel
that since the agreement to sell had been denied by the defendant-
respondents, hence, there was no necessity to prove readiness and
willingness also deserves to be rejected. This Court in the case of Gurmail
Singh & Anr. vs. Jagdishpal Singh [2018 (2) PLR 418] has held as under :
"15. The reasons assigned by the learned first appellate
court is against the provisions of section 16C of the
Specific Relief Act. Section 16C of the Specific Relief Act
specifically provides that the plaintiff must assert and
integrity of this order/judgment.
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prove that he has performed or has always been ready
and willing to perform the essential terms of the contract
which are to be performed by him. Merely because the
defendants has denied the execution of the agreement to
sell does not absolve the plaintiff from the duty to assert
and prove that he was always ready and willing to
perform his part of the contract. Reference in this regard
can be made to the judgment passed by the Hon'ble
Supreme Court reported as Saradamani Kandappan v. S.
Rajalakshmi and others, (2011) 12 Supreme Court Cases,
18. Paragraph 43 of the judgment is extracted as under:-
"43. Till the issue is considered in an appropriate case,
we can only reiterate what has been suggested in K.S.
Vidyanadam :
(i) The Courts, while exercising discretion in suits for
specific performance, should bear in mind that when the
parties prescribe a time/period, for taking certain steps or
for completion of the transaction, that must have some
significance and therefore time/period prescribed cannot
be ignored.
(ii) The Courts will apply greater scrutiny and strictness
when considering whether the purchaser was 'ready and
willing' to perform his part of the contract
(iii) Every suit for specific performance need not be
decreed merely because it is filed within the period of
limitation by ignoring the time-limits stipulated in the
agreement. The Courts will also 'frown' upon suits which
are not filed immediately after the breach/refusal. The
fact that limitation is three years does not mean a
purchaser can wait for 1 or 2 years to file a suit and
obtain specific performance. The three year period is
intended to assist purchasers in special cases, as for
integrity of this order/judgment.
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example, where the major part of the consideration has
been paid to the vendor and possession has been
delivered in part performance, where equity shifts in
favour of the purchaser."
16. In the considered opinion of this court, it was for the
plaintiff to plead and prove that he was always ready and
willing to perform his part of the contract.
17. Learned counsel for the plaintiff-respondent has
vehemently argued that the conduct of the defendants be
examined. He has submitted that execution of the
agreement to sell is denied by the defendants. He has
further submitted that purchase of the mini bus for which
the alleged loan was taken, has not been proved.
18. In the considered opinion of this court, the conduct of
the defendants can only be seen, once the plaintiff is able
to establish his case. Plaintiff in the present case has
failed to fulfill the requirements of section 16C of the
Specific Relief Act.
19. In view thereof, the question of law framed earlier is
answered in favour of the appellants. The judgment
passed by the learned first appellate court is set aside and
the judgment and decree passed by the trial court is
restored."
9. The learned counsel for the plaintiff-appellant has not been able
to show as to how the plaintiff-appellant was ready and willing to perform
his part of the contract. A perusal of both the judgments and decrees reveals
that only an amount of earnest money i.e. Rs.30,000/- + Rs.70,000/- has
been mentioned and then there is a mention of the balance sale
consideration. Neither is the amount mentioned anywhere nor has the
plaintiff-appellant proved his readiness and willingness. The argument of the
integrity of this order/judgment.
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learned counsel that the readiness and willingness was not required to be
proved in view the fact that the agreement to sell itself was denied, cannot be
accepted. As discussed in the case of Gurmail Singh (supra), it is
incumbent on the plaintiff-appellant to comply with the provisions of
Section 16(C) of the Specific Relief Act, 1963. In the present case the Court
cannot lose sight of the fact that for 13 long years the plaintiff-appellant
chose to keep quiet and it is only thereafter that the plaintiff-appellant filed
the present suit. The conduct of the plaintiff-appellant goes a long way to
show that the plaintiff-appellant was never ready and willing to perform his
part of the contract. There was no effort made by the plaintiff-appellant to
ever approach the defendant-respondents calling upon them to get NOC and
to execute the sale deed. In the absence of having proved readiness and
willingness, the Courts have rightly exercised the discretion in granting the
alternate relief. This Court finds no reason to differ from the findings
returned by both the Courts.
10. In view of the above, no question of law, much less any
substantial question of law, arises in the present case which requires
determination by this Court. The present appeal, being devoid of any merit,
is accordingly dismissed. Pending applications, if any, also stand disposed
off.
( ALKA SARIN )
20.03.2024 JUDGE
Yogesh Sharma
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
integrity of this order/judgment.
