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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

RSA-504-2016(O&M)

Mahender Singh

...Appellant(s)

Vs.

Rakesh Singh

...Respondent(s)

***

The date when the judgment is reserved 28.11.2025

The date when the judgment is pronounced 05.12.2025

The date when the judgment is uploaded on the

website

Whether only operative part of the judgment is

pronounced or whether the full judgment is

pronounced

Full Judgment

CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA

Argued by:- Mr. Munish Gupta, Advocate

for the appellant.

Mr. P.R. Yadav, Advocate

for the respondent.

***

NIDHI GUPTA, J.

The defendant is in Second Appeal against the con current

judgments and decrees of the learned Courts below whereby suit filed by

the plaintiff/respondent for specific performance of Agreement to Sell

dated 17.07.2006, has been decreed by both the Courts below.

2. It was the pleaded case of the respondent in the plaint that the

appellant/defendant had entered into an Agreement to Sell dated

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17.07.2006 with the plaintiff to sell land measuring 24 kanal 0 marla for

total sale consideration of Rs.8,55,000/-. At the time of execution of

Agreement to Sell, the defendant had received Rs.1,50,000/- as earnest

money. It was pleaded that after execution of Agreement to Sell, the

plaintiff had again made payment of Rs.2,50,000/- to the defendant on

25.07.2006 as part payment of sale consideration. In respect of this, an

endorsement was made by the defendant on the back of Agreement to Sell,

in the presence of witnesses. Thus, defendant had received total of

Rs.4,00,000/- as earnest money. Target date for execution of Sale Deed was

on or before for 31.12.2006. However, as 30.12.2006 and 31.12.2006 were

public holidays, the plaintiff had gone to the Tehsil Office on 29.12.2006 to

execute the Sale Deed along with balance sale consideration and other

expenses. It was pleaded that plaintiff had waited for the defendant from 9

am till 5:30 pm. However, the defendant had failed to come present. The

plaintiff had got his presence marked by swearing an affidavit before the

Sub-Registrar, Mahendergarh. Thereafter, plaintiff had contacted the

defendant who had stated that he would execute the Sale Deed on

01.01.2007. Since 01.01.2007 was a public holiday, plaintiff had remained

present in Office of Sub-Registrar again along with balance sale

consideration and other expenses on 02.01.2007. However, defendant

again failed to come present. The plaintiff again got his presence marked by

way of affidavit. It was pleaded that despite repeated requests, the

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defendant had refused to execute the Sale Deed. Hence, plaintiff had

instituted the present suit on 01.02.2007.

3. Upon notice, the defendant had put in appearanc e and

resisted the suit by filing written statement inter alia stating therein that

the Agreement to Sell dated 17.07.2006 and receipt of earnest money of

Rs.1,50,000/-were admitted. It was also admitted that target date was fixed

to be on or before 31.12.2006. It was however denied that defendant had

received further payment of Rs.2,50,000/- on 25.07.2006. It was denied

that plaintiff was always ready and willing to perform the contract. It was

contended that the plaintiff had failed to prove that he had the financial

capacity to execute the contract. It was averred that failure of plaintiff to

show possession of balance sale consideration would amount to forfeiture

of the earnest money and consequent cancellation of the Agreement to Sell.

On the contrary, defendant always remained ready and willing to perform

his part of the contract and had got his presence marked before the Sub-

Registrar on 29.12.2006 as also on 02.01.2007. It was averred that a Legal

Notice dated 19.01.2007 was also served by the defendant upon the

plaintiff thereby cancelling the Agreement. Accordingly, dismissal of the

suit was prayed for.

4. On the basis of pleadings of the parties, following issues were

framed: -

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“1. Whether the defendant received an amount of Rs. 2,50,

000/- as earnest money in pursuance of agreement to sell

dated 17.7. 06?0PP

2. Whether the plaintiff still ready and willing to perform his

part of contract? OPD

3. If issue no. 1 is proved, whether the plaintiff is entitled for

specific performance of contract on the ground as alleged?

OPD

4. Whether the suit of the plaintiff is not maintainable in the

present form? OPD

5. Whether the plaintiff has no cause of action to file the

present suit? OPD

6. Whether the plaintiff is estopped from filing the suit by his

own act and conduct? OPD

7. Whether the plaintiff has not come in the court with clean

hands? OPD

8. Whether the defendants are entitled for special costs under

Section 35A CPC? OPD

9. Relief”

5. Upon appraisal of pleadings and oral & documentary evidence

adduced by the parties, the trial court decided issues No.1 to 3 in favour of

the plaintiff and against the defendant; issues No.4 and 5 were also decided

in favour of the plaintiff and against the defendant; and issues No.6 to 8

were decided in favour of the plaintiff and against the defendant.

Accordingly, vide judgment and decree dated 22.11.2012, the learned

Additional Civil Judge (Senior Division), Mahendergarh had decreed the suit

of the plaintiff “to the effect that plaintiff is held entitled to relief of specific

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performance of agreement to sell dated 17.7.06 Ex. P1 and defendant is

directed to execute the sale deed…”.

6. The Civil Appeal filed by the defendant was dismissed by the

learned Additional District Judge, Narnaul vide judgment and decree dated

22.07.2015. Hence, present Second Appeal by the defendant.

7. It is inter alia submitted by learned counsel for the appellant

that it is admitted fact on record that vide the Legal Notice dated

19.01.2007 served by the appellant upon the respondent, the appellant had

cancelled the Agreement to Sell dated 17.07.2006. It is submitted that in

this view of the matter, the suit of the plaintiff in its present form was not

maintainable - inasmuch as it was incumbent upon the plaintiff to first seek

a declaration that the Agreement to Sell dated 17.07.2006 is valid, and that

the cancellation of Agreement by the defendant is bad. It is further

submitted that even if such an issue was not framed by the learned trial

Court, it is open to this Court to examine this aspect, the same being a

jurisdictional fact. In support of his contention, learned counsel relies upon

judgment of Hon’ble Supreme Court in I.S. Sikandar (D) By Lrs. v. K.

Subramani (SC) : Law Finder Doc ID # 494000, wherein it is held that:-

“17. Answer to Point No. 1

The first point is answered in favour of the defendant No. 5 by

assigning the following reasons :

It is an undisputed fact that there is an Agreement of Sale

executed by defendant Nos. 1-4 dated 25.12.1983 in favour of

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the plaintiff agreeing to sell the schedule property in his favour

for a sum of ₹ 45,000/- by receiving an advance sale

consideration of ₹ 5,000/- and the plaintiff had further agreed

that the remaining sale consideration will be paid to them at

the time of execution of the sale deed. As per Clause 6 of the

Agreement of Sale, the time to get the sale deed executed was

specified as 5 months in favour of the plaintiff by the defendant

Nos. 1-4, after obtaining necessary permission from the

competent authorities such as the Urban Land Ceiling

Authority and Income Tax Department for execution and

registration of the sale deed at the cost and expenses of the

plaintiff. If there is any delay in obtaining necessary permission

from the above authorities and the payment of layout charges,

the time for due performance of agreement shall further be

extended for a period of two months from the date of grant of

such permission. In the instant case, permission from the above

authorities was not obtained from defendant Nos. 1-4. The

period of five months stipulated under clause 6 of the

Agreement of Sale for execution and registration of the sale

deed in favour of the plaintiff had expired. Despite the same,

the defendant Nos. 1-4 got issued legal notice dated

06.03.1985 to the plaintiff pointing out that he has failed to

perform his part of the contract in terms of the Agreement of

Sale by not paying balance sale consideration to them and

getting the sale deed executed in his favour and called upon

him to pay the balance sale consideration and get the sale

deed executed on or before 18.3.1985. The plaintiff had issued

reply letter dated 16.3.1985 to the advocates of defendant Nos.

1-4, in which he had admitted his default in performing his part

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of contract and prayed time till 23.05.1985 to get the sale deed

executed in his favour. Another legal notice dated 28.03.1985

was sent by the first defendant to the plaintiff extending time

to the plaintiff asking him to pay the sale consideration

amount and get the sale deed executed on or before

10.04.1985, and on failure to comply with the same, the

Agreement of Sale dated 25.12.1983 would be terminated

since the plaintiff did not avail the time extended to him by

defendant Nos. 1-4. Since the plaintiff did not perform his part

of contract within the extended period in the legal notice

referred to supra, the Agreement of Sale was terminated as per

notice dated 28.03.1985 and thus, there is termination of the

Agreement of Sale between the plaintiff and defendant Nos. 1-

4 w.e.f. 10.04.1985. As could be seen from the prayer sought

for in the original suit, the plaintiff has not sought for

declaratory relief to declare the termination of Agreement of

Sale as bad in law. In the absence of such prayer by the plaintiff

the original suit filed by him before the trial court for grant of

decree for specific performance in respect of the suit schedule

property on the basis of Agreement of Sale and consequential

relief of decree for permanent injunction is not maintainable in

law. Therefore, we have to hold that the relief sought for by the

plaintiff for grant of decree for specific performance of

execution of sale deed in respect of the suit schedule property

in his favour on the basis of non existing Agreement of Sale is

wholly unsustainable in law. Accordingly, the point No. 1 is

answered in favour of the defendant No. 5.

18. Answer to Point No. 2

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Even if we assume that the Agreement of Sale dated

25.12.1983 is subsisting, we have to answer point No. 2 in

favour of defendant No. 5 for the following reasons :-

It would be very much relevant for us to extract Clause 6 of the

Agreement of Sale which reads thus:

"The time fixed for execution and completion of the sale

transaction is five months from the date of the agreement of

sale. The first parties have agreed to get the necessary

permission for registration from the competent authorities

such as the Urban Land Ceiling authorities and Income Tax

Authority within the said period of five months at the cost and

expenses of the Second Party. The Second Party has agreed to

pay the necessary layout and conversion charges of the suit

property to the concerned authorities. The first party have

further agreed with the second party that if in case the

necessary permission from the aforesaid authorities is delayed

and as a consequence thereof the payment of layout charges

is delayed, the time for due performance of the agreement

shall stand extended for a further period of 2 months from the

date of grant of such permission."

This position of law is well settled by this Court in the

Constitution Bench judgment in Smt. Chand Rani (dead) by LRs.

v. Smt. Kamal Rani(dead) by LRs., 1993(2) R.R.R. 46 : (1993)1

SCC 519; wherein this Court has held that it is well settled

principle of law, that in a case of sale of immovable property,

time is not the essence of the contract. However, If the parties

agreed to a specified time in the agreement to perform their

part of the contract, then time is the essence of the contract

and parties shall adhere to the same.

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XXX

28. The learned High Court Judge has gravely erred in reversing

the findings of fact recorded on the issue Nos. 3, 4 and 5 by the

trial court in favour of the defendants. He has also failed to

take into consideration the very important aspect of the matter,

namely, that the Agreement of Sale in favour of the plaintiff

was terminated and he had not sought declaratory relief to

declare that the termination of agreement in the original suit

is bad in law and therefore the suit for specific performance is

not maintainable. Even assuming for the sake of argument that

agreement was subsisting, the suit for specific performance is

not maintainable in law in view of the breach of the terms and

conditions of the agreement by the plaintiff. Keeping in view

the purpose for which the Agreement of Sale was executed and

the time stipulated in the agreement as per clause 6 of the

agreement, the contract should have been complied with

within seven months including the extended period and that

has not been done by the plaintiff. The findings recorded by the

trial court on issue Nos. 4 and 5 and with regard to the

readiness and willingness on the part of the plaintiff, the

appellate court should have exercised its discretionary power

under subsections (1) and (2) of Section 20 of the Specific Relief

Act, and for this reason also we hold that the grant of the

decree for specific performance by the High Court in the

impugned judgment is wholly unsustainable in law. The trial

court has come to the right conclusions on the contentious

issues framed by it and has held that even though Agreement

of Sale is proved, the plaintiff is not entitled for the decree of

specific performance in respect of the suit schedule property in

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view of the findings of fact and reasons recorded in the

contentious issues by it in its judgment and we are in

agreement with the same.” (Emphasis added)

8. Learned counsel takes this Court through the development of

law in this regard and refers to judgment of the Hon’ble Supreme Court in

“R. Kandasamy (Since Dead) & Others Vs. T.R.K. Sarawathy & Another”

(2025) 3 SCC 513, wherein it is held as under:-

“40. Having held thus, allowing the appeal is the inevitable

result. However, before we part, there seems to be a discordant

note struck by the decision in A. Kanthamani while

distinguishing I.S. Sikandar, which could create uncertainty

and confusion. It is, therefore, considered worthwhile to

attempt and clear the same.

41. A comprehensive reading of the two decisions reveals that

in a fact scenario where the vendor unliterally cancels an

agreement for sale, the vendee who is seeking specific

performance of such agreement ought to seek declaratory

relief to the effect that the cancellation is bad and not binding

on the vendee. This is because an agreement, which has been

cancelled, would be rendered non-existent in the eye of the law

and such a non-existent agreement could not possibly be

enforced before a court of law. Both the decisions cited above

are unanimous in their approval of such legal principle.

However, as clarified in Kanthamani , it is imperative that an

issue be framed with respect to maintainability of the suit on

such ground, before the court of first instance, as it is only

when a finding on the issue of maintainability is rendered by

the trial court that the same can be examined by the first

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or/and second appellate court. In other words, if

maintainability were not an issue before the trial court or the

appellate court, a suit cannot be dismissed as not maintainable.

This is what Kanthamani holds.

42. The aforesaid two views of this Court, expressed by

coordinate Benches, demand deference. However, it is noticed

that this Court in Kanthamani had not been addressed on the

effect of non-existence of a jurisdictional fact (the existence

whereof would clothe the trial court with jurisdiction to try a

suit and consider granting relief) i.e. what would be its effect

on the right to relief claimed by the plaintiff in a suit for specific

performance of contract.

43. In Shrisht Dhawan v. Shaw Bros., an interesting discussion

on "jurisdictional fact" is found in the concurring opinion of

Hon'ble R.M. Sahai, J. (as his Lordship then was). It reads: (SCC

pp. 551-52, para 19)

“19… What, then, is an error in respect of jurisdictional

fact? A jurisdictional fact is one on existence or non-

existence of which depends assumption or refusal to

assume jurisdiction by a court, tribunal or an authority.

In Black's Legal Dictionary it is explained as a fact which

must exist before a court can properly assume

jurisdiction of a particular case. Mistake of fact in

relation to jurisdiction is an error of jurisdictional fact.

No statutory authority or tribunal can assume

jurisdiction in respect of subject-matter which the

statute does not confer on it and if by deciding

erroneously the fact on which jurisdiction depends the

court or tribunal exercises the jurisdiction then the order

is vitiated. Error of jurisdictional fact renders the order

ultra vires and bad. In Raza Textiles it was held that a

court or tribunal cannot confer jurisdiction on itself by

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deciding a jurisdictional fact wrongly." (emphasis

supplied)

44. Borrowing wisdom from the aforesaid passage, our

deduction is this. An issue of maintainability of a suit strikes at

the root of the proceedings initiated by filing of the plaint as

per requirements of Order 7 Rule 1 CPC. If a suit is barred by

law, the trial court has absolutely no jurisdiction to entertain

and try it. However, even though a given case might not attract

the bar envisaged by Section 9 CPC, it is obligatory for a trial

court seized of a suit to inquire and ascertain whether the

jurisdictional fact does, in fact, exist to enable it (the trial court)

to proceed to trial and consider granting relief to the plaintiff

as claimed. No higher court, much less the Supreme Court,

should feel constrained to interfere with a decree granting

relief on the specious ground that the parties were not put

specifically on notice in respect of a particular line of

attack/defence on which success/failure of the suit depends,

more particularly an issue touching the authority of the trial

court to grant relief if "the jurisdictional fact" imperative for

granting relief had not been satisfied. It is fundamental, as held

in Shrisht Dhawan, that assumption of jurisdiction/refusal to

assume jurisdiction would depend on existence of the

jurisdictional fact. Irrespective of whether the parties have

raised the contention, it is for the trial court to satisfy itself that

adequate evidence has been led and all facts including the

jurisdictional fact stand proved for relief to be granted and the

suit to succeed. This is a duty the trial court has to discharge in

its pursuit for rendering substantive justice to the parties,

irrespective of whether any party to the lis has raised or not. If

the jurisdictional fact does not exist, at the time of settling the

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issues, notice of the parties must be invited to the trial court's

prima facie opinion of non-existent jurisdictional fact touching

its jurisdiction. However, failure to determine the jurisdictional

fact, or erroneously determining it leading to conferment of

jurisdiction, would amount to wrongful assumption of

jurisdiction and the resultant order liable to be branded as

ultra vires and bad.”

(Emphasis added)

9. The above-said judgments have been reiterated b y the

Hon’ble Supreme Court in subsequent judgment of “Sangita Sinha Vs.

Bhawana Bhardwaj & Others” 2025 SCC OnLine SC 723.

10. It is next submitted by learned counsel for the appellant that

the plaintiff had also failed to prove his readiness and willingness because

the plaintiff had failed to demonstrate the availability of funds. It is

submitted that by way of the Affidavit of Attendance before the Sub-

Registrar, the plaintiff had only marked his presence and had not proved

that he was in possession of the balance sale consideration. It is contended

that for this reason as well, relief of specific performance could not have

been granted to the respondent. To elaborate his argument, learned

counsel refers to the Affidavit of Attendance of the plaintiff of 29.12.2006

(Ex.PW5/B) to submit that although the plaintiff has stated therein that he

had purchased Stamp Papers however, in actual fact, no Stamp Papers were

purchased by the plaintiff, which is proved from the fact that no Stamp

Vendor had been examined.

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11. Ld. Counsel further submits that even otherwise, reading of

the said affidavits clearly show that the plaintiff has nowhere averred that

he had with him the balance sale consideration at the relevant point of time;

and, therefore, also, the observation of the Ld. Courts below that plaintiff

remained ready and willing, is without any basis and dehors illegal and

liable to be set aside.

12. It is submitted that even presence of the plaintiff in the Office

of Sub-Registrar on 29.12.2006 and 02.01.2007 as alleged, has not been

proven. It is submitted that although the respondent has produced the

Affidavits of Attendance (Ex.PW5/B and Ex.PW5/C). However, the same

have been sought to be proved by examining PW5 Krishan Kumar, Office

Kanungo. It is contended that the said Affidavit could not have been got

proved by examining the Office Kanungo; rather the Registration Clerk or

the Sub-Registrar himself ought to have been examined to get the same

proved. Thus, as the finding on the issue of readiness and willingness is

based on the said Affidavits, which have not been proved in due course of

law, the said findings in favour of the respondent are liable to be set aside.

13. Moreover, the learned Courts below lost sight of the fact that

the appellant had remained present on 29.12.2006 as well as on 02.01.2007

before the Sub-Registrar and had duly got his presence marked; whereas

the plaintiff never appeared before the said Authority. Therefore, the

defendant was always ready and willing to execute the Sale Deed, and it

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was the plaintiff who never came forward. As such, bona fide of the

appellant is proved from the fact that he had got his presence marked; and

thereafter, also got served Legal Notice dated 19.01.2007 informing the

plaintiff that Agreement to Sell has come to an end and earnest money of

Rs.1,50,000/- stands forfeited.

14. Ld. Counsel elaborates to further submit that said legal notice

was issued on 19.01.07 and after receipt of the same, in order to counter,

legal notice is shown to have been sent by plaintiff to the appellant on

22.01.2007 asking him to come present before the Office of Sub Registrar

on 05.02.2007 and get sale deed executed. However, the intent of the

respondent is evident from the fact that even before 5.2.2007, the

respondent had filed the instant suit on 01.02.2007 itself i.e. prior to

05.02.07 (stipulated date as per notice dated 22.01.07). Since the suit had

been filed even prior to the stipulated date, as per notice got issued by

plaintiff, the suit was itself premature and, therefore, no relief in favour of

respondent could have been granted.

15. Learned counsel lastly submits that even the findings of the

learned Courts below qua payment of Rs.2,50,000/- and endorsement

obtained thereupon, are liable to be set aside as it is the clear case of the

appellant that plaintiff had obtained the said endorsement from the

defendant by fraud. It is accordingly prayed that the impugned judgments

and decrees be set aside.

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16. Per contra, learned counsel for the respondent/plaintiff

vehemently opposes the submissions advanced on behalf of the appellant.

In respect of the argument of the appellant regarding the jurisdictional

aspect and maintainability of the Civil Suit, it is contended by learned

counsel for the plaintiff that such a declaration is necessitated only when it

is found by the Courts that the Agreement to Sell has been violated by the

parties. It is contended that in other situations, such as the present one, it

is not necessary to seek a decree of declaration.

17. In continuation of the said argument, learned counsel for the

respondent submits that a perusal of the Legal Notice dated 19.01.2007

shows that defendant had cancelled the Agreement on the purported

ground that on the target dates of 29.12.2006 and 02.01.2007, the

respondent did not come present in the Office of the Sub-Registrar. Learned

counsel submits that the said ground for cancellation of Agreement does

not exist, as DW5 Registration Clerk has deposed that plaintiff was present

on the said dates in the Office of the Sub-Registrar. It is submitted that

therefore, as the very purported ground for cancellation of Agreement is

negated, there was no question of seeking a declaration regarding the

validity of the Agreement.

18. Learned counsel for the respondent further submits that as

regards the financial capacity of the plaintiff to pay the balance sale

consideration, it is contended that admittedly, the plaintiff had paid

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Rs.1,50,000/- as earnest money on the date of execution of Agreement to

Sell on 17.07.2006 itself. Within a week thereafter, the plaintiff had also

paid an additional sum of Rs.2,50,000/- to the defendant on 25.07.2006.

Payment of the said money is proved from the endorsement dated

25.07.2006 which duly bears the signature of the defendant, and has also

been proved from the evidence of the Handwriting Expert. It is submitted

that therefore, much before the target date, the plaintiff had paid about 50%

of the total sale consideration to the defendant. It is contended that

accordingly, it does not require proving that if the plaintiff could arrange

almost 50% of the sale consideration within 10 days of the Agreement, then

he would have the capacity to arrange the remaining funds by the target

dates of 29.12.2006/02.01.2007 in a period of six months.

19. Learned counsel further submits that it is a clear recital in the

Agreement in question that possession was handed over to the

respondent/plaintiff at the time of execution of the Agreement itself. Even

PW1 has clearly stated that plaintiff is in cultivating possession of the suit

land. It is pointed out that there is no denial to this fact by the appellant in

the written statement or even in the Legal Notice dated 19.01.2007 issued

by the defendant to the plaintiff. It is submitted that it is only in his

examination-in-chief that the defendant has stated that plaintiff has

surrendered possession. Learned counsel argues that if the Agreement to

Sell had in actuality been cancelled, the possession of the suit property with

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the respondent would not have continued; and the appellant would have

taken this plea in the written statement itself or in the Legal Notice.

However, appellant has mentioned regarding surrender of possession for

the first time only in his examination-in-chief; which is beyond the

pleadings. It is submitted that therefore, for this reason also, the appellant

cannot raise the plea of jurisdictional aspect and maintainability of the suit.

20. As regards Stamp Paper, learned counsel for the respondent

submits that it was never stated by the respondent in the Affidavit of

Attendance that he had purchased the Stamp Papers. It is contended that

what has been stated by the respondent is that he had brought the

necessary expenses for purchase of Stamp Papers. It is reiterated that the

financial capacity of the respondent to pay the balance sale consideration

is established from the fact that respondent had paid about 50% of the sale

consideration to the appellant within one week of the Agreement to Sell;

and therefore, capacity of the respondent to generate the remaining 50%

of the total sale consideration within six months cannot be doubted.

21. Learned counsel further submits that the Legal Notice dated

19.01.2007 had been issued by the appellant only to frustrate the

Agreement to Sell. It is admitted that respondent had issued Legal Notice

dated 22.01.2007 to the appellant, in which he had mentioned that target

date to register Sale Deed as 05.02.2007. However, the respondent was

constrained to file the Civil Suit on 01.02.2007 itself as, as stated in Para 7

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of the plaint, one day prior thereto i.e. on 31.01.2007 the appellant had

refused to execute the Sale Deed; because of which the respondent did not

wait for 05.02.2007 and forthwith filed the suit on 01.02.2007. Learned

counsel accordingly prays for dismissal of the present appeal.

22. No other argument is made on behalf of the parties.

23. I have heard learned counsel for the parties and perused the

case file in great detail. I have given my very thoughtful consideration to the

rival submissions advanced on behalf of both the parties; and I find merit

in the submissions advanced on behalf of the respondent.

24. Due execution of the Agreement to Sell (Ex.P1) has been

proved from testimony of PW3 Ved Prakash (Deed Writer and Scribe of

Agreement to Sell); and testimony of PW1 Satender, PW2 Sawai Singh

attesting witnesses of the Agreement to Sell. Moreover, execution of

Agreement to Sell (Ex.P1) has not been disputed by defendant in his written

statement or in his testimony. Rather defendant while appearing as DW4

has categorically admitted execution of Agreement to Sell and receipt of

earnest money.

25. Learned counsel for the appellant has placed great reliance

upon the judgments of the Hon’ble Supreme Court in I.S. Sikandar (Supra),

R. Kandasamy (Supra), and Sangita Sinha(Supra), to argue that as per the

said judgments, it was incumbent upon the respondent to first seek a

declaration that the cancellation of the Agreement by the appellant was

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bad; and therefore, the Agreement is valid; and therefore, the suit is

maintainable. However, in the facts and circumstances of the case, the ratio

decidendi of the abovesaid enunciations of law would not be applicable.

The appellant has cancelled the Agreement for the ostensible reason as

given in Para 2 of the said Legal Notice dated 19.01.2007 (Ex.D7), which

reads as follows: -

“2. That my client has always remained wiling and ready to get

the sale deed registered in favour of you on receipt of the

balance sale consideration amount as per agreement dated

17.07.2006. As 30/31.12.2006 and 01.01.2007 being holidays,

the office of Sub Registrar, Mohindergarh was closed,

therefore, my client before and after the said dates i.e. on

29.12.2006 and 02.01.2007 came present in the office of Sub

Registrar, Mohindergarh and got marked his presence and my

client remained present on both the dates from 9 AM till 5 PM

in the office of sub Registrar, Mohindergarh but you did not

come present. In view of this, you have not complied with the

terms and conditions of the agreement to sell and, therefore,

in view of the terms and conditions contained in the agreement

to sell, the earnest money i. e. Rs. 1,50,000/- (One lac fifty

thousand) paid by you stands forfeited and the agreement to

sell stands cancelled and now my client is not bound by the said

Agreement to Sell.”

(Emphasis added)

26. Thus, the only ground on which the appellant cancelled the

Agreement is that the respondent did not come present in the Office of the

Sub-Registrar, Mahendergarh on 29.12.2006 and 02.01.2007. However, the

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said reason of the appellant is contrary to the evidence on record. First and

foremost, the presence of the respondent in the Tehsil Office is proved from

his Affidavits of Attendance before the Sub-Registrar on 29.12.2006

(Ex.PW5/B - at page 251 of the LCR); and on 02.01.2007 (Ex.PW5/C - at page

257 of the LCR), which have been duly attested by the Sub-Registrar-cum-

Executive Magistrate, Mahendergarh.

27. Besides the above conclusive proof of presence of the

respondent in the Tehsil on target date, the fact that respondent was

present in the Tehsil Office on the said dates is also proved from the

testimony of DW1 Devender Kumar, Registry Clerk, Sub-Registrar,

Mahendergarh (at page 211 of the LCR) who has categorically stated in his

cross-examination that:-

“It is correct that affidavit dated 29.12.2006 Rakesh Singh son

of Mahabir Singh has been seen on the file for attendance

which is attested by Naib Tehsildar Sh. O.P. Yadav which is Ex.

PW-5/B. I have seen affidavit dated 02.01.2007 of Rakesh Son

of Mahabir Singh which is attested by Sh. O.P. Godara Tehsildar

Mahendergarh and the same is PW-5/C. I identify signatures

of both the officers on the above affidavits. It is correct that

plaintiff Rakesh Singh was present in the office of sub Registrar

Mahendergarh on 29.12.2006 and 02.01.2007. It is wrong that

defendant Mahender Singh was not present on that day and

his presence has been wrongly attested.”

(Emphasis is mine)

RSA-504-2016 Page 22 of 31

28. Thus, defendant witness DW1 Registry Clerk himself has

verified the presence of the plaintiff in the Office of the Sub-Registrar on

the target dates. As such, the sole ground on which the appellant had

sought to cancel the Agreement to Sell, is nullified. Thus, the very premise

on which jurisdictional error is alleged by the appellant, is non-existent. In

this circumstance, no declaration as contended, was required to be sought,

as it is proven from the evidence on record that the unilateral cancellation

of Agreement by the appellant was based on incorrect facts. Thus, suit of

the plaintiff was very much maintainable.

29. Furthermore, the defendant has vehemently denied receiving

further payment of Rs.2,50,000/- from the plaintiff on 25.07.2006.

However, a perusal of the endorsement (Ex.P2 - at page 236 of the LCR)

clearly shows that the same bears the signature of the appellant at three

points Mark A1, Mark D2 and Mark Q1. The said endorsement also bears

the signatures of the 2 witnesses Satinder Singh son of Partap Singh and S.S.

Rathore. In fact, a bare perusal of Ex.P2 with naked eye would reveal that

the said endorsement appears to have been written in the hands of the

appellant himself. Furthermore, the signature of the appellant at Mark A is

just below the stamp borne on the said endorsement. It would therefore

appear that the appellant had himself written and endorsed receiving the

payment of ₹2,50,000 from the respondent on 25.7.2006.

RSA-504-2016 Page 23 of 31

30. Most importantly, defendant himself has admitted receiving

the said amount of ₹2,50,000/– from the respondent in Para 2 of his written

statement (at page 47 to 65 of the LCR), in the following manner: -

“…… the defendant used to take liquor with plaintiff on certain

occasions and taking undue advantage in case plaintiff has

obtained the endorsement from defendant regarding payment

of Rs. 2,50,000/- same is not binding on the defendant…”

31. Thus, the defendant himself has admitted receipt of the said

amount of ₹2,50,000/– from the plaintiff.

32. The fact that the appellant had received Rs.2,50,000/- from

the respondent on 25.07.2006, is also proved from the evidence of PW1

Satinder Singh. PW1 has stated in his cross-examination that “It is wrong

that on 25.07.2006 no payment was made under the Agreement.”. In his

examination-in-chief (Ex.PW1/A), PW1 has stated that:-

“2. That the defendant on the basis of above agreement to sell

received Rs. 2,50,000/- in cash from the plaintiff and on the

back of the above agreement to sell wrote the same and put

his signature. The writing is Ex. P-2 which has been witnessed

by me and Savai Singh Rathore and we have put our signatures

as witnesses. Thus, the defendant has received total amount of

Rs. 4, 00, 000/- (Rs.1,50,000/- on 17.04.2006 at the time of

agreement and Rs.2,50,000/- on 25.07.2006) in our presence

and the remaining sale consideration was agreed to pay at the

time of registry.”

33. Even PW2 Sawai Singh has categorically stated in his cross-

examination that “The writing for payment of more amount was made on

RSA-504-2016 Page 24 of 31

25.07.2006 and the same was regarding Rs.2.5 lakhs. Today I have got

prepared my affidavit (Ex.PW2/A) myself which is fully correct….” Further,

Law is well settled that in absence of cross-examination on a point,

statement on that point in examination-in-chief is to be taken to be true.

34. Admittedly, even Handwriting Expert was examined by the

respondent to prove the signatures of the defendant upon the

endorsement (Ex.P2). PW8 Sh. V.B. Kashyap, Handwriting and Fingerprint

Expert proved his Report as Ex.PW/B in which it was concluded that the

disputed signatures are of defendant Mahender Singh. There is nothing on

record that Ex.P2 is result of fraud and misrepresentation. Admittedly, no

evidence in rebuttal has been led by the appellant to rebut the said report

of the Handwriting Expert produced and examined by the respondent, as

per which the endorsement (Ex.P2) bore the signatures of the appellant.

35. This fact is further fortified from a reading of the cross-

examination of the defendant as DW4 (at page 220-221 of the LCR), which

reveals that necessary suggestions were put by the plaintiff to the

defendant/DW4 regarding receipt of the amount of Rs.2,50,000/- on

25.07.2006, which have been duly denied by the defendant. A suggestion

has also been put by the plaintiff to the defendant regarding possession as

well, which has also been denied by the defendant. However, given the

above admission of the defendant in the written statement as also the

above-noted evidence in respect of these facts, nothing would hinge on the

RSA-504-2016 Page 25 of 31

said denials and the same are merely perfunctory, superficial and routine

in the course of cross-examination.

36. Thus, it is unequivocally established on record that the

appellant had received ₹2,50,000/– from the respondent on 25.7.2006.

From this fact, the continuing readiness and willingness of the

respondent/plaintiff to perform the contract is amply established on record.

From the above fact, the financial capacity of the respondent to generate

the balance sale consideration is also established.

37. In respect of readiness and willingness of the plaintiff to

perform the contract, it has been contended by the appellant that the

plaintiff was not in possession of the balance sale consideration as it is not

so stated in his Affidavits of Attendance (Ex.PW5/B and PW5/C). It is also

submitted on behalf of the appellant that it is proved on record that the

respondent was not ready and willing to perform the contract from the fact

that although he has stated in his Affidavit of Attendance (Ex.PW5/B and

Ex.PW5/C) that he had bought the Stamp Papers, however, he has failed to

examine any Stamp Vendor. The said argument of the appellant is

misconceived as a perusal of the Affidavit of Attendance of 29.12.2006

(Ex.PW5/B - at page 251 of the LCR) and 2.1.2007 (Ex.PW5/C - at page 257

of the LCR) shows that what has been stated therein is that “The deponent

is present with balance sale consideration and expenses for stamp etc.”.

Therefore, it has nowhere been stated by the plaintiff that he had bought

RSA-504-2016 Page 26 of 31

the Stamp Papers. All that has been stated is that the respondent is present

with balance sale consideration and other expenses for Stamps etc.

Presence of the respondent in the Tehsil Office on the dates 29.12.2006 and

02.01.2007 already stands proved from the evidence of DW1 Registry Clerk.

38. Plaintiff as PW7 has further categorically averred that he was

possessed with balance sale consideration and other expenses for

execution and registration of Sale Deed at the time when he appeared

before Sub-Registrar on 29.12.2006 and 02.01.2007; and said fact has not

been rebutted by anything brought on record by defendant to show that

plaintiff was not possessed of requisite balance sale consideration.

39. So far as plea of defendant that plaintiff is taking benefit of fact

that defendant while in company of plaintiff used to take drink, might have

obtained his signature and then converted the same into endorsement, in

this regard defendant has not been able to establish the manner and

circumstances under which an inference can be drawn to believe this plea

of defendant. From oral and documentary evidence led by plaintiff, it is duly

proved that in pursuance of Agreement to Sell, plaintiff had made payment

of Rs.2,50,000/- to defendant as sale consideration. It is well settled law

that when cross-examination on the material and relevant points is missing

then it is presumed to be admitted. Defendant has not led any evidence to

prove manner and circumstances under which and on which specific date

the alleged fraud was played upon him by plaintiff. Therefore, plaintiff has

RSA-504-2016 Page 27 of 31

led sufficient evidence to prove the payment of earnest money as well as

execution of Agreement to Sell (Ex.P1). Defendant has failed to establish on

record his readiness and willingness to perform the contract on his part.

Merely by producing affidavits of attendance readiness and willingness of

defendant to perform the contract cannot be established.

40. Furthermore, it is also relevant to note that the plaintiff has

categorically stated in Para 7 of the plaint that:-

“7. That cause of action for the suit has accrued in favour of

the plaintiff and against the defendant from refusal on

yesterday and on dated 17.07.2006 of agreement to sell and

on dated 31.12.2006 and dated 29.12.2006 and 02.01.2007

within the jurisdiction of the Ld. Court…”.

41. Present suit for specific performance of Agreement to Sell

(Ex.P1) has been instituted on 01.02.2007 i.e. only a month after the last

date fixed for execution and registration of Sale Deed in terms of Ex.P1 is

another indicator of readiness and willingness of plaintiff to perform his

part of contract. Having regard to the fact that contract pertains to

immovable property; and Legal Notice (Ex.D7) regarding forfeiture is

defective and suffers from concealment of material facts; and Legal Notice

(Ex.P3) was issued by plaintiff to defendant immediately after last date fixed

for execution and registration of Sale Deed; and fact that present suit for

specific performance of Agreement to Sell has been filed promptly, thus,

even from the subsequent conduct of the plaintiff it becomes apparent that

RSA-504-2016 Page 28 of 31

plaintiff remained ready and willing to perform his part of contract. Filing

of present suit on 01.02.2007 cannot be said to be premature. At any rate,

defendant in the present suit has not disclosed any intention to execute

Sale Deed in favour of plaintiff after institution of suit till expiry of period in

the Notice (Ex.P3) and said contention is entirely misconceived. Contention

of defendant that plaintiff is carrying on the business of property dealing,

there are neither pleadings nor evidence to this effect. It would therefore

appear that Sale deed could not be executed only on account of default on

part of defendant.

42. As regards the question of possession, a perusal of the

Agreement to Sell dated 17.07.2006 (Ex.P1 - at page 235 of the LCR) shows

that there is a clear recital therein that “Therefore the first party has handed

over possession to the second party at the spot.”. Terms and conditions of

Agreement to Sell (Ex.P1) and recital regarding delivery of possession have

not been specifically disputed by defendant either in written statement or

in his testimony while appearing as DW4 and shall therefore, be deemed to

have been admitted. Further, defendant as DW4 deposed that on account

of non-execution of Sale Deed in terms of Agreement to Sell, Agreement to

Sell stood cancelled and plaintiff surrendered the possession in favour of

defendant which is clear admission on part of defendant that possession of

suit land in terms of Agreement to Sell had indeed passed from defendant

to plaintiff. This writing in the Agreement to Sell regarding delivery of

RSA-504-2016 Page 29 of 31

possession to the plaintiff is further substantiated from the evidence of

PW1 Satinder Singh, who in his testimony (at page 161 of the LCR) has

stated that “Jaydaad Mutaida Rakesh Muddai Ka Kast-v-Kabja hai.” i.e. the

plaintiff is in cultivation and possession of the suit land. Admittedly, the

writing in the Agreement to Sell has not been denied by the defendant

either in the Legal Notice or in the written statement. It is only in his

examination-in-chief that the defendant has stated for the first time that

the plaintiff has surrendered possession. It is but trite that if the plaintiff

had indeed surrendered possession; then this plea would have been taken

by the defendant firstly in the Legal Notice and then in the written

statement. Clearly therefore, the examination-in-chief of the defendant is

beyond the pleadings and is therefore, not admissible. Even otherwise, no

details have been given by the appellant as to when, where, how, and in

what manner plaintiff had surrendered possession.

43. The plaintiff in his cross-examination as PW7 has stated that:

“And possession of the disputed land was handed over at the

spot and from that date till date my cultivation and possession

is continuing.

2. That the defendant on the basis of above agreement to sell

dated 17.07.2006 Ex. P-1 received Rs. 2, 50, 000/- in cash from

the me and in the presence of the witnesses Savai Singh and

Satender Singh the amount was received in cash and the

defendant in his own handwriting has written on the back of

agreement Ex. P-1 in his own hand which is Ex.P-2 and thus the

RSA-504-2016 Page 30 of 31

defendant has received a total amount of Rs.4 lacs in cash and

it has been agreed that remaining would be paid at the time of

registration xxxx.....”

44. In the above noted circumstances, it would be apposite to

refer to judgment of the Hon’ble Supreme Court in A. Kanthamani v.

Nasreen Ahmed, (SC) : Law Finder Doc ID # 833982, wherein it is held that:-

“43. First, the plaintiff had pleaded the necessary requirements

of Section 16 (c) of the Specific Relief Act, 1963 read with the

requirement of Forms 47, 48 and Article 54 of the Limitation

Act in the plaint; Second, the defendant did not dispute the

execution of agreement with the plaintiff and, in fact, entered

in correspondence with the plaintiff for incorporation of some

clauses therein; Third, the plaintiff proved her readiness and

willingness to perform her part of agreement and also proved

her financial capacity to purchase the suit property by

adducing adequate evidence; Fourth, the plaintiff had paid

more than ₹ 2 lacs to the defendant prior to execution of sale

deed in terms of agreement dated 05.03.1989 and was,

therefore, required to pay balance sum of ₹ 1,47,200/- to the

defendant; Fifth, on admitted facts, therefore, the plaintiff had

paid more than 50% of the sale consideration to the defendant

before the due date of execution of sale deed; Sixth, the

plaintiff had also proved that she had the requisite financial

capacity to pay the balance sale consideration to the

defendant inasmuch as she had arranged the funds by

obtaining loan from the LIC; Seventh, the plaintiff filed the suit

immediately on expiry of the period within 10 days to show her

readiness and willingness to purchase the property; and Eighth,

once it was held that the defendant committed breach in

avoiding to execute the agreement, whereas the plaintiff

performed her part of agreement and was ready and willing to

perform her part, the Trial Court was justified in exercising its

discretion in favour of the plaintiff by passing a decree for

specific performance of agreement against the defendant.”

RSA-504-2016 Page 31 of 31

45. It is my view, that the facts and circumstances of the present

case are identical to that of the aforenoted case of Kanthamani supra. Thus,

relief of specific performance cannot be denied to the plaintiff.

46. Even otherwise, the Hon’ble Supreme Court in M/s. Shivali

Enterprises v. Godawari (Deceased) (SC): Law Finder Doc Id # 2034559; has

held that this Court in 2

nd

Appeal, has limited jurisdiction to interfere in the

concurrent findings.

47. In view of the above discussion, present appeal is dismissed.

48. Pending application(s) if any also stand(s) disposed of.

05.12.2025 (Nidhi Gupta)

Sunena Judge

Whether speaking/reasoned: Yes/No

Whether reportable: Yes