High Court of H.P.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Civil Suit No. 131 of 2012

Judgment Reserved on 6

th

May 2016

Date of Judgment 17

th

May 2016

________________________________________________________

M/s Twenty First Century Resorts through

its partners Sh.Rajneesh Vohra son of Sh.J.C.Vohra & others

….Plaintiffs.

Versus

Shamsher Singh son of Shri Pratap Chand

….Defendant.

________________________________________________________

Coram

The Hon’ble Mr. Justice P.S. Rana, J.

Whether approved for reporting?

1

Yes.

______________________________________________________________

For Plaintiffs: Mr. Ajay Kumar Sr. Advocate

with Mr.Dheeraj Vashista

Advocate.

For Defendant: Mr. Debender Ghosh Advocate.

_____________________________________________________________

P.S. Rana, Judge

Judgment:- Plaintiff M/s Twenty First Century Resorts

filed suit for specific performance of contract of sale dated

10.7.2006 and for possession of land comprised in Khata

Khatauni No. 126/175 (Kitas 47) situated at Up Mohal Simsa

1

Whether Reporters of Local Papers may be allowed to see the judgment? Yes.

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Phatti Nasogi Kothi Manali Tehsil Manali District Kullu (H.P.)

measuring 00-45-35 Hectares. Consequential relief of

permanent prohibitory injunction restraining the defendant

from transferring or alienating or changing the nature or

creating any encumbrance on suit land also sought. It is

pleaded that total sale consideration amount was settled as

Rs.15520000/- (Rupees one crore fifty five lac twenty

thousand) vide contract dated 10.7.2006 placed on record. It

is pleaded that defendant received a sum of Rs.40 lac (Rupees

forty lac) as earnest money from plaintiffs. It is pleaded that

sale deed was to be executed by defendant on or before

31.12.2006. It is pleaded that it was agreed that sale deed

would be executed in favour of plaintiffs after obtaining

necessary permission under Section 118 of H.P. Tenancy and

Land Reforms Act 1972. It is pleaded that it was agreed that

defendant would partition the suit land or would obtain

consent letters/no objection certificates from other co-sharers.

It is pleaded that thereafter supplementary contract dated

19.12.2006 was executed inter se parties and time for

registration of sale deed was extended till 31.3.2007. It is

pleaded that thereafter another supplementary contract dated

29.3.2007 was executed inter se parties and time for

registration of sale deed was extended upto 31.7.2007. It is

pleaded that thereafter another supplementary contract dated

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30.7.2007 was executed inter se parties and time for

registration of sale deed was extended till 31.1.2008. It is

pleaded that thereafter on 12.12.2009 defendant received a

sum of Rs.19 lacs (Rupees nineteen lac) from plaintiff towards

additional earnest money of sale consideration amount and

signed the receipt placed on record. It is pleaded that

thereafter defendant in March 2010 received a sum of Rs.20

lacs (Rupees twenty lac) on account of additional earnest

money from plaintiffs. It is pleaded that defendant has

received total sum of Rs.79 lac (Rupees seventy lac) till March

2010 from plaintiffs as earnest money of sale. It is pleaded

that defendant did not partition the suit land as per contract

and also did not obtain no objection/consent letters from other

co-owners. It is pleaded that thereafter co-plaintiff No. 1

decided to assign the right under contract of sale in favour of

co-plaintiff No. 3 Shri Vikas Sohal. It is pleaded that thereafter

notice dated 14.7.2012 was also served upon defendant. Prayer for

decree of the suit as mentioned in relief clause of

plaint sought.

2. Per contra written statement filed on behalf of

defendant pleaded therein that suit of plaintiff in present form

is not maintainable. It is pleaded that time is essence of

contract in present civil suit and plaintiffs are not entitled for

relief of specific performance of contract due to their own act

of omission and commission and also negligence. It is pleaded

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that permission under Section 118 of H.P. Tenancy and Land

Reforms Act 1972 for purchase of suit land not sought till date

by plaintiffs as per terms and conditions of contract. It is

pleaded that plaintiffs Nos. 1 and 2 have no locus standi to

seek the relief under Specific Relief Act 1963 in favour of co-

plaintiff No. 3 with whom there is no privity of contract. It is

pleaded that present suit is barred by limitation. It is denied

that defendant had received a sum of Rs.79 lac (Rupees

seventy nine lac) upto March 2010 as earnest money. It is

pleaded that defendant was always ready and willing to

perform his part of contract for registration of sale deed. It is

pleaded that co-plaintiffs Nos. 1 and 2 did not perform their

part of contract and they are not legally entitled to seek

specific performance of contract executed between plaintiff

No.1 and defendant. It is pleaded that plaintiff No. 1 could not

assign its right in contract to co-plaintiff No. 3 after a lapse of

more than six years and after the expiry of date of limitation.

It is pleaded that plaintiff No.1 could not purchase the land

without getting permission from the Government as per

provisions of Section 118 of H.P. Tenancy and Land Reforms

Act 1972. It is pleaded that plaintiffs are not entitled for

specific performance of contract and prayer for dismissal of

suit sought.

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3. Plaintiffs also filed replication and re-asserted the

allegations mentioned in the plaint.

4. As per pleadings of parties following issues were

framed on 31.10.2013:

1. Whether plaintiffs are entitled for specific

performance of agreement of sale dated

10.7.2006? …OPP

2. In case plaintiffs are not found entitled to

the relief of specific performance whether in

the alternative they are entitled for relief of

damages/compensation as claimed and if so

to what amount? ….OPP

3. Whether suit of the plaintiffs is not

maintainable in its present form, as alleged

and if so to what effect? …..OPD

4. Whether plaintiffs are not entitled for relief

of specific performance due to their own

acts of omission and commission? OPD

5. Whether time was the essence of contract

and if so its effect? ….OPD

6. Whether plaintiffs Nos. 1 and 2 have no

locus standi to seek specific performance of

the agreement in favour of plaintiff No. 3

with whom there is no privity of contract and

who is stranger to the same? ….OPD

7. Whether the present suit is misconceived?

….OPD

8. Relief.

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5. Court heard learned counsel appearing for the

plaintiffs and learned Advocate appearing on behalf of

defendant and also perused the entire record carefully.

6. Findings on Issue No.1 with reasons.

6.1 PW1 Rajnish Vohra has stated that plaintiff No.1 is

a partnership firm and plaintiffs Nos. 2 and 3 are its partners.

He has stated that he has brought the original form ‘C’

regarding the registration of firm and true copy is Ext.PW1/A.

He has stated that Ext.PW1/B is certified copy of list of

partners of firm. He has stated that plaintiffs have entered

into an agreement for purchase of land with defendant in July

2006. He has stated that agreement was with respect to

purchase of 5 bighas 12 biswas of land for sale consideration

amount of Rs.15520000/- (Rupees one crore fifty five lac

twenty thousand). He has stated that original agreement of

sale is Ext.PW1/C. He has stated that agreement was signed

by parties. He has stated that plaintiffs firm paid a sum of

Rs.40 lacs (Rupees forty lacs) as earnest money and balance

sale consideration amount was to be paid at the time of

registration of sale deed. He has stated that sale deed was to

be executed before 31.12.2006. He has stated that as per

agreement defendant was either to get the consent of co-

sharers or get the land partitioned. He has stated that no

objection certificates from other co-owners were to be

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obtained by defendant as required under Section 118 of H.P.

Tenancy and Land Reforms Act 1972. He has stated that

defendant did not obtain any no objection certificate from co-

sharers in order to get the land partitioned. He has stated that

defendant sought time for extension of contract and

supplementary contract was executed inter se the parties. He

has stated that plaintiff had paid a sum of Rs. 19 lac (Rupees

nineteen lac) to defendant in the month of December 2009 by

way of original receipt Ext.PW1/G. He has stated that in the

month of March 2010 defendant asked for more money on

account of marriage of his daughter and he received a sum of

Rs.20 lac (Rupees twenty lac). He has stated that till date

plaintiffs have paid a sum of Rs.79 lac (Rupees seventy nine

lac) to defendant. He has stated that legal notice was also

issued to defendant Ext.PW1/H. He has stated that Ext.PW1/J

is original postal receipt and Ext.PW1/K is original

acknowledgement of notice. He has stated that firm has

nominated Vikas Sohal co-plaintiff No. 3 as nominee for

purchase of land. He has stated that Vikas Sohal is resident of

Himachal Pradesh and is agriculturist. He has stated that

plaintiffs are still ready and willing to perform their part of

contract. He has stated that plaintiffs are ready to purchase

the land on payment of balance sale consideration amount.

He has stated that firm came into existence in 2006 and firm

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was registered later on. He has admitted that partnership

deed was executed subsequent to the execution of agreement

Ext.PW1/C. He has stated that plaintiffs did not apply for

permission to purchase the land from State Government. He

has stated that last extension for registration of sale deed was

given by way of supplementary contract Ext.PW1/F and sale

deed was to be executed on or before 31.1.2008. He has

stated that thereafter no supplementary contract was

executed for extension of time for registration of sale deed.

He has stated that plaintiffs did not issue any notice to

defendant for obtaining no objection certificate from land

owners or to get the land partitioned. He has stated that

plaintiffs did not issue any letter in writing to defendant for

assignment of contract in favour of Vikas Sohal co-plaintiff

No.3. He has denied suggestion that plaintiffs were not ready

and willing to perform their part of contact.

6.2 PW2 K.G. Thakur has stated that he is practising

Advocate at Kullu and he is also Notary. He has stated that he

had seen original documents Ext.PW1/C, Ext.PW1/D,

Ext.PW1/E and Ext.PW1/F. He has stated that all these

agreements were attested by him. He identified his signatures

and he has also brought the original Notary registers and

stated that entries were recorded in the original registers. In

cross examination he has stated that he is working as Notary

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since 1999. He has stated that he only attested the

documents, when same were brought to him by parties.

6.3. PW3 Lekh Ram has stated that he is practising

Advocate since 2002 at Manali Sub Division and he has seen

original agreement Ext.PW1/C and agreement Ext.PW1/E. He

has stated that both agreements drafted by him under

instructions of parties and he had signed these agreements. In

cross examination he has stated that agreements were

drafted under instructions of defendant Shamsher Singh. He

has stated that both buyer and seller came to him for drafting

the supplementary agreements. He has denied suggestion

that he did not draft the documents.

6.4. PW4 Padam Singh Assistant in the office of District

Registrar of Firms and Societies Panchkula has stated that he

has brought the summoned record. He has stated that plaintiff

No. 1 is a registered partnership firm. He has stated that

Ext.PW1/A is true copy of certificate regarding registration of

firm. In cross examination he has stated that firm was

registered on 23.7.2012. He has stated that there is no

mention of existence of firm prior to 23.7.2012.

6.5. PW5 Gaurav Sohal has stated that he has seen

original agreements Ext.PW1/C to Ext.PW1/E. He has stated

that documents were executed by parties in his presence. He

has stated that second witness has also signed the documents

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in his presence. He has stated that co-plaintiff No. 3 is his real

elder brother. He has stated that co-plaintiff No. 2 is

personally known to him. He has stated that he became

witness at the instance of parties.

6.6. PW6 Vikas Sohal has stated that he is one of the

partners of co-plaintiff No.1 i.e. M/s Twenty First Century

Resorts. He has stated that firm is duly registered with

Registrar of Firms at Panchkula. He has stated that in July

2006 plaintiff No. 1 firm entered into an agreement for

purchase of 5 bighas 10 biswas of land from defendant vide

agreement Ext.PW1/E. He has stated that in beginning sum of

Rs.40 lac (Rupees forty lac) given as earnest money to

defendant. He has stated that subsequently payment to the

tune of Rs.19 lacs (Rupees nineteen lac) and Rs.20 lac

(Rupees twenty lac) total Rs. 79 lac (Rupees seventy nine lac)

paid by plaintiffs to defendant. He has stated that

supplementary agreements Ext.PW1/D to Ext.PW1/F were also

executed between the parties. He has stated that he is

bonafide resident of Himachal Pradesh and is also

agriculturist. He has stated that plaintiffs are still willing to

perform their part of contract. He has stated that defendant

did not obtain consent of other co-owners and further stated

that defendant also did not get the land partitioned. He has

stated that being agriculturist he is eligible to buy the land in

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Himachal Pradesh. He has stated that out of total sale

consideration of Rs.15520000/- (Rupees one crore fifty five lac

twenty thousand) plaintiffs have paid an amount of Rs.79 lac

(Rupees seventy nine lac) to defendant. In cross examination

he has stated that partnership firm was registered in the year

2012. He has denied suggestion that plaintiffs did not pay `79

lacs (Rupees seventy nine lac) as earnest money. He has

denied suggestion that plaintiff had paid only Rs.59

lac(Rupees fifty nine lac) to defendant. He has denied

suggestion that plaintiffs are not ready and willing to perform

their part of contract. He has denied suggestion that

supplementary agreements were executed just to prolong the

matter. He has denied suggestion that plaintiffs were not

willing to perform their part of contract.

6.7. DW1 Shamsher Singh has stated that land is

situated in Up Mohal Simsa Phatti Nasogi Kothi Manali Tehsil

Manali District Kullu H.P. and he entered into an agreement

with plaintiffs. He has stated that sale deed was to be

executed in the month of December 2006. He has stated that

plaintiffs firm did not execute the sale deed despite repeated

requests. He has stated that plaintiffs got extension of time

for registration of sale deed and supplementary agreements

were executed. He has stated that last supplementary

agreement was executed on 30.7.2007. He has stated that

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plaintiff approached to him with proposal that sale deed would

be registered in favour of co-plaintiff No. 3 but he did not

agree to the proposal. He has stated that considerable time

has elpased and now he is not ready and willing to register

sale deed in favour of plaintiffs firm. In cross examination he

has stated that agreement was executed relating to 5 bighas

11 biswas of land. He has stated that there are 3-4 sharers in

suit land. He has stated that he is under graduate. He has

stated that agreement bears his signatures and also admitted

that receipt Ext.PW1/G also bears his signatures. He has

stated that he did not obtain no objection certificate from co-

sharers to sell the land in favour of plaintiffs firm. He has

stated that he did not send any notice to plaintiffs firm to

come forward for registration of sale deed. Self stated that he

orally requested the plaintiffs to get the sale deed registered

many time. He has stated that acknowledgment Ext.PW1/K

bears his signatures. He has stated that in Himachal Pradesh

non-agriculturist is not eligible to purchase the land without

permission of the competent authority. He has stated that he

did not write to plaintiffs to obtain such permission from

competent authority.

7. Plaintiffs did not adduce any evidence in rebuttal.

Learned Advocate appearing on behalf of plaintiffs has given

statement in writing before Court on dated 27.10.2014 that no

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evidence in rebuttal is intended to be produced by plaintiffs.

Statement of learned Advocate is placed on record.

8. Following documents filed. (1) Ext.PW1/A is

acknowledgment of registration of firm M/s Twenty First

Century Resorts by District Registrar of Firms Panchakula

Haryana dated 23.7.2012. (2) Ext.PW1/B is the register of

firms wherein M/s Twenty First Century Resorts registered on

23.7.2012. (3) Ext.PW1/C is the original contract of sale dated

10.7.2006. (4) Ext.PW1/D is the supplementary contract dated

19.12.2006 for extension of time for registration of sale deed

till 31.3.2007. (5) Ext.PW1/E is supplementary contract dated

29.3.2007 for extension of date for registration of sale deed

till 31.7.2007. (6) Ext.PW1/F is also supplementary contract

dated 30.7.2007 wherein date for registration of sale deed

was extended upto 31.1.2008. (7) Ext.PW1/G is receipt

wherein Shamsher Singh defendant acknowledged the receipt

of Rs.19 lac (Rupees nineteen lac) in cash from Rajnish Vohra

partner of M/s Twenty First Century Resorts. There is recital in

receipt that terms and conditions of contract would remain

same as agreed in earlier contracts. (8) Ext.PX is the copy of

Missal Hakiat Bandobast for the year 2001-02 relating to suit

property. (9) Ext.PW6/A is agriculture certificate issued by

Naib Tehsildar Kullu dated 18.5.2010 in favour of Vikas Sohal

co-plaintiff No.3. (10) Ext.PW1/H is legal notice given by

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plaintiffs to the defendant dated 14.7.2012 for transfer of suit

land by way of sale in favour of plaintiffs. (11) Ext.PW1/K is

acknowledgment receipt issued by Postal and Telegraph

Department. (12) Ext.PW2/A is extract of register. (13) Ext.DX

is partnership deed dated 11.7.2006 executed between

Rajnish Vohra and Vikas Sohal.

9. Submission of learned Advocate appearing on

behalf of plaintiffs that plaintiffs are entitled for relief of

specific performance for contract of sale dated 10.7.2006 is

rejected being devoid of any force for reasons hereinafter

mentioned. It is proved on record that original contract of sale

Ext.PW1/C was executed inter se the parties on dated

10.7.2006. It is proved on record that there were twenty terms

and conditions in original contract dated 10.7.2006. Terms

and conditions of original contract dated 10.7.2006 are quoted

in toto. (1) The buyer has agreed to buy the said property and

seller has agreed to sell the same for a total sale

consideration of Rs.15520000/- (Rupees one Crore fifty five

lacs and twenty thousand only). (2) The seller represents that

they have a marketable title and are competent to transfer

the property to buyer free of any defects in title. The buyer

will satisfy itself in respect of the title and notify seller of any

perceived defects before 31.12.2006. The seller will clarify or

correct such defects before receiving additional payments.

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(3)The seller assured that he has clear title of the property

mentioned above. He undertakes that in case any defect is

found the seller shall be held responsible and liable to

indemnify the losses suffered by the buyer on this account. (4)

The seller shall deliver the copy(s) of title deeds of the said

property in his possession or power for inspection thereof. (5)

All liabilities in respect of the said property on account of

property taxes, ground rents, land revenue, payable till the

completion date shall be to the account of and borne by the

seller and thereafter by the buyer. (6) Buyer shall obtain all

the necessary No Objection Certificates/permissions from the

State Government and/or any other authority as may be

required and which shall be of concern for transfer of

ownership right with respect to the said property to the buyer.

(7) The schedule of the payment of the consideration shall be

as follows. (i) The seller has paid Advance/earnest money

Rs.900000/- (Rupees nine lacs only) vide D.D. No. 306108 and

Rs.900000/- (Rupees nine lacs only) vide D.D. No. 306109 and

Rs.200000/- (Rupees two lacs only) vide D.D. No. 306110 of

State of Hyderabad of dated 8.7.2006 and Rs.2000000/-

(Rupees twenty lacs only) in cash. (ii) The Balance payment of

the above described land will be paid last by 31.12.2006. (8) It

is agreed the above payment schedule shall not be changed in

any circumstances. The payment would not delay on any

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account except when a defect in seller title and right to sell is

found to exist. (9) In case buyer fails to fulfill its commitment

under the agreement within the sipulated scheduled as

mentioned hereinabove advance earnest amount given as

advance/earnest money shall stand forfeited if the buyer hold

permission for purchasing of land from the Govt. of H.P.

31.12.2006 at the same moments the seller fails and refused

to execute and registered sale deed in favour of the buyer in

that event the buyer shall have right and authority to file

specific suit of performance. (10) The seller agreed to hand

over existing boundary wall on the plot to the buyer. (11) The

sale shall be completed by 31.12.2006. (12) It is made clear

that in case required permission/NOC is refused by the State

Government the buyer shall assign any other person/natural

or juristic capable of purchasing the said property who shall

then purchase the said property from the seller and shall

execute all necessary documents to complete the transaction.

(13) The seller agrees to sell the said property to any of the

assigns of the buyer at the same consideration as herein. In

case the buyer remains unsuccessful in obtaining the

necessary permission/no objection certificates from the State

government in spite of its best efforts. (14) The seller agrees

that at no time till the completion date it shall negotiate with

any other person interested in the said property to sell the

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same to such person. (15) The seller shall hand over vacant

and peaceful possession of said property to the buyer at

adjoining land of Sh. Kamal Chand in north side in khasra No.

1287, 1285 at the time of signing of this agreement. (16)

Neither party shall be liable to the other in any action or claim

for consequential or special damages, loss of profits, loss of

opportunity, or loss of use and any protection against liability

for losses of damages afforded by any individual or entity by

these terms shall apply whether the action in which recovery

of damages is sought is based on contract, tort (Including

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sole, concurrent or other negligence and strict liability of a

protected individual or entity), statute or otherwise. To the

extent permitted by law any statutory remedies that are

inconsistent with these terms are waived. (17) The agreement

shall be effective from the date above mentioned. (18) The

invalidity or unenforceability of any particular provision of this

agreement or portion thereof shall not effect the other

provisions or portions thereof and this agreement shall be

construed in all respects as if any such invalid or

unenforceable provisions or portions thereof omitted and this

agreement shall remain in full force and effect. (19) All the

expenses towards registration of sale, stamp duty payable etc

on sale deed shall be borne by the buyer. (20) Stamp duty

payable on this document and any other documents and the

registration charges in respect thereof will be paid by the

buyer and each party will bear and pay his advocates fees and

other expenses incurred by him.

10. As per original contract of sale the sale deed was

to be executed before 31.12.2006. It is proved on record that

thereafter by way of supplementary contract executed inter

se parties Ext.PW1/D date for registration of sale deed was

extended till 31.3.2007 upon same terms and conditions of

original contract dated 10.7.2006. It is proved on record that

thereafter supplementary contract Ext.PW1/E was executed

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inter se parties wherein time for registration of sale deed was

extended till 31.7.2007 upon same terms and conditions of

original contract dated 10.7.2006. It is proved on record that

thereafter vide supplementary agreement Ext.PW1/F time for

registration of sale deed was extended till 31.1.2008. It is

proved on record that original contract Ext.PW1/C is

contingent contract and there was condition No. 6 in original

contract that buyer would obtain all necessary no objection

certificate/permission from State Government or any other

authority as may be required. It was also agreed inter se the

parties as per condition No. 13 that in case buyer would

remain unsuccessful to obtain necessary permission/no

objection certificate from State Government inspite of its best

efforts then buyer would sell the said property to any of

assignee of buyer at the same consideration amount

mentioned in original contract. It is proved on record that

buyer did not obtain permission from State Government to

purchase the land under Section 118 of H.P. Tenancy and

Land Reforms Act 1972. It is proved on record that vide

supplementary contract Ext.PW1/F registration of sale deed was

to be executed on or before 31.1.2008. It is proved on record

that time is essence of contract in present case. As per original

contract and subsequent cont racts executed inter se the

parties registration of sale deed was to be executed on or

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before 31.1.2008. It is held that cause of action to plaintiffs

against the defendant for registration of sale deed occurred

w.e.f. 31.1.2008 in present case. As per Article 54 and

Schedule annexed under Limitation Act 1963 suit for specific

performance of contract could be filed within three years from

the date fixed for performance of contract. In present case

date is specifically finally fixed for performance of contract as

31.1.2008. It is held that plaintiffs did not file the present suit

within three years w.e.f. 31.1.2008. Plaintiffs have filed

present suit on 11.12.2012 after expiry of three years from

the date fixed for performance of contract. As per Section 3 of

Limitation Act 1963 every suit instituted, appeal preferred and

application made after prescribed period shall be dismissed

although limitation has not been set up as a defence. Hence it

is held that relief to plaintiffs for specific performance of

contract of sale dated 10.7.2006 is barred under law of

Limitation Act 1963.

11. Submission of learned Advocate appearing on

behalf of plaintiffs that in view of receipt Ext.PW1/G dated

12.12.2009 limitation for registration of sale deed will start

from 12.12.2009 is rejected being devoid of any force for the

reasons hereinafter mentioned.Court has carefully perused

receipt Ext.PW1/G placed on record. Contents of receipt

Ext.PW1/G are quoted in toto:

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Receipt dated 12.12.2009

I, Shamsher Singh son of late Shri Pratap Chand

resident of village Rangri P.O. Manali Tehsil Manali District

Kullu has received a sum of Rs.1900000/- (Rupees nineteen

lacs only) in cash from Sh.Rajneesh Vohra partner in M/s 21

st

Century Resorts having its head office at SCO 8, Sector 5,

Panchkula (Haryana) against the land deal between us as per

the sale agreement dated 10.7.2006.

The said amount is in addition to the amount paid

earlier in the same deal as mentioned in the earlier

agreements. The other terms and conditions remains the

same as agreed in the earlier agreements.

12.12.2009 Sd/-(Shamsher Singh)

Paid by Sh.Rajneesh Vohra Received by.

Sd/-

12. It is held that in receipt Ext.PW1/G the defendant

has simply acknowledged the receipt of additional earnest

money to the tune of Rs.1900000/- (Rupees nineteen lac). It is

held that defendant in receipt Ext.PW1/G did not extend the

period of limitation for registration of sale deed. On the

contrary there is specific recital in receipt Ext.PW1/G that

there would be no change in terms and conditions of earlier

agreements. There is no recital in receipt Ext.PW1/G that date

of registration of sale deed is extended. It is held that vide

receipt Ext.PW1/G defendant did not extend date of

registration of sale deed dated 31.1.2008. It is held that time

is essence of contract relating to sale deed in present case.

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See 2015(8) SCC 695 title Padma Kumari vs. Dasayyan. See AIR 1980

SC 1786 title Bal Krishan vs. Bhagwan Dass. See AIR 1996 SC 116

title N.P.Thirughanam vs. R. Jagan Mohan Rao. See AIR 2016

Chhatisgarh 73 title Daya Ram Soni vs. Smt. Gyarsi Bai Khandelwal

and others. See AIR 2003 Caucutta 263 title M/s Cllan International

Private Limited vs. Ashok.

Even sale deed cannot be registered in

favour of co-plaintiff No. 3 in view of bar of M/s Twenty First

Century Resort because assignee would not get better title

than assignor. Even PW1 Rajneesh Vohra co-plaintiff No. 1

has admitted when he appeared in witness box that last

extension of registration of sale deed was given by way of

supplementary contract Ext.PW1/F till 31.1.2008 and

thereafter no extension of time for registration of sale deed

was given. It is well settled law that facts admitted need not to

be proved under Section 58 of Indian Evidence Act 1872. In

view of above stated facts and case law cited supra issue No.

1 is decided against plaintiffs.

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Findings on Issue No.2 with reasons

13. Submission of learned Advocate appearing on

behalf of plaintiffs that in alternative plaintiffs are legally

entitled for relief of damages/compensation as claimed in suit

is partly answered in yes and partly answered in no. In present

case defendant has admitted in original contract of sale that

he has received earnest money to the tune of Rs.900000/-

(Rupees nine lac) vide DD No. 306108, also received sum of

Rs.900000/- (Rupees nine lac only) vide DD No. 306109 and

also Rs.200000/- (Rupees two lac only) vide DD No. 306110

dated 8.7.2006 and also received Rs.20 lac (Rupees twenty

lac) in cash. Defendant has admitted in original contract of

sale that at the time of execution of orignal sale contract

defendant has received amount of ` 40 lac (Rupees forty lac).

It is also proved on record that thereafter vide receipt

Ext.PW1/G placed on record defendant has admitted receipt of

additional amount of Rs.19 lacs (Rupees nineteen lac) from

the plaintiffs. It is held that by way of original contract of sale

Ext.PW1/C dated 10.7.2006 and by way of receipt Ext.PW1/G

dated 12.12.2009 defendant has received Rs.59 lacs (Rupees

fifty nine lac) as earnest money from plaintiffs. Court has also

perused Nakal Missal Hakiyat Ext.PX placed on record. There

is recital in Nakal Missal Hakiyat Ext.PX placed on record that

vide mutation No. 123 the ownership to the extent of 3/27

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shares was transferred in the names of (1) Manorma Devi, (2)

Shakuntla Devi, (3) Damyanti Devi from the shares of

Shamsher Singh and Surender Chand sons of Partap Chand.

Seller has concealed these facts from buyer at the time of

execution of original contract of sale. Hence it is held that

buyers are not legally competent to forfeit the earnest money

as mentioned in original contract. It is held that M/s Twenty

first Century Resorts co-plaintiff No.1 through its partners

would legally entitle for recovery of earnest money i.e. Rs.59

lacs from the defendant along with interest at the rate of 6%

per annum from the date of institution of suit till realization.

14. Documents Ext.PW1/C, Ext.PW1/D, Ext.PW1/E,

Ext.PW1/F are proved by way of testimony of PW2 K.G. Thakur

Advocate. Documents Ext.PW1/C and Ext.PW1/F proved by

way of testimony of PW3 Lekh Ram Advocate. Testimonies of

PW2 and Ext.PW3 are trustworty reliable and inspire

confidence of Court.

15. Submission of learned Advocate appearing on

behalf of plaintiffs that defendant received Rs. Twenty lac in

the month of March 2010 from plai ntiffs on the occasion of

marriage of his daughter is rejected being devoid of any force

for the reasons hereinafter mentioned. There is no receipt

placed on record signed by defendant wherein it is proved

that defendant has received Rs.Twenty lac in the month of

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High Court of H.P. 25

March 2010 from plaintiffs. Plaintiffs did not adduce any

independent witness in order to prove that defendant has

received Rs.twenty lac from plaintiffs in the month of March

2010. Hence plea of plaintiffs is rejected on the concept of

ipse dixit (An assertion made without proof). Issue No. 2 is

decided accordingly partly in favour of plaintiffs.

Findings on Issue No.3 with reasons

16. Submission of learned Advocate appearing on

behalf of defendant that suit of plaintiffs is not maintainable in

present form is partly answered in yes and partly answered in

no. It is held that plaintiffs are not entitled for relief of specific

performance of contract of sale dated 10.7.2006 because time

is essence of contract in present case. As per original contract

and subsequent contracts executed inter se the parties sale

deed was to be registered on or before 31.1.2008. Present

civil suit not filed within three years from the date of cause of

action w.e.f. 31.1.2008. It is held that as defendant has

acknowledged the receipt of advance earnest money to the

tune of Rs.19 lac (Rupees nineteen lac) on 12.12.2009 hence

suit for recovery of earnest money is filed within three years

w.e.f. 12.12.2009.It is held that defendant has himself

extended the period for recovery of earnest money by way of

signing receipt Ext.PW1/G relating to earnest money. Issue No.

3 is decided accordingly.

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Findings on Issue No.4 with reasons

17. Submission of learned Advocate appearing on

behalf of defendant that plaintiffs are not entitled for relief of

specific performance due to their own acts of omission and

commission is decided accordingly. It is held that plaintiffs are

not entitled for relief of registration of sale deed on the basis

of original contract dated 10.7.2006 and on the basis of

subsequent contracts Ext.PW1/D, Ext.PW1/E and Ext.PW1/F. It

is held that plaintiffs are entitled for recovery of earnest

money to the tune of Rs.59 lacs (Rupees fifty nine lac) in view

of receipt Ext.PW1/G dated 12.12.2009 executed inter se the

parties and in view of fact that defendant has admitted his

signatures upon receipt Ext.PW1/G dated 12.12.2009 in

process of admission and denial of documents in civil suit.

Issue No. 4 is decided accordingly.

Findings on Issue No.5 with reasons

18. Submission of learned Advocate appearing on

behalf of defendant that time is essence of contract in present

case is accepted for the reasons hereinafter mentioned. It is

proved on record that in original contract Ext.PW1/A there is

specific condition No. 11 that sale deed would be completed

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on or before 31.12.2006. It is proved on record that thereafter

time for registration of sale deed was extended by way of

supplementary contracts Ext.PW1/D, Ext.PW1/E and Ext.PW1/F

till 31.1.2008. It is proved on record that thereafter time for

registration of sale deed was not extended by parties and it is

also proved on record that vide receipt Ext.PW1/G dated

12.12.2009 time for registration of sale deed was not

extended. On the contrary there is recital in receipt Ext.PW1/G

that other terms and conditions of contract would remain

same as agreed by parties in earlier contract. Hence it is held

that time is essence of contract in present case for

registration of sale deed. Issue No. 5 is decided accordingly.

Findings on issue No.6 with reasons

19. Submission of learned Advocate appearing on

behalf of defendant that plaintiffs Nos. 1 and 2 have no locus

standi to seek specific performance of contract in favour of co-

plaintiff No. 3 with whom there is no privity of contract and

who is stranger to the same is decided accordingly for the

reasons hereinafter mentioned. Court has carefully perused

original contract Ext.PW1/C placed on record dated 10.7.2006.

As per condition No. 13 of contract dated 10.7.2006 both

parties have agreed that seller would sell the suit property to

any of assignee of buyer at the same consideration in case

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buyer remains unsuccessful in obtaining no objection

certificate/necessary permission from State Government

inspite of its best efforts. Defendant has himself admitted in

original contract that he would register sale deed at the same

rate to any of assignee of buyer. It is held that even sale deed

cannot be executed in favour of assignee of buyer because

time for registration of sale deed is essence of contract in

present case. Plaintiffs did not file suit within three years

w.e.f. 31.1.2008 as required under Article 54 of Limitation Act

1963. Assignor cannot assign better title to assignee than

himself. Issue No. 6 is decided accordingly.

Findings on issue No. 7 with reasons

20. Submission of learned Advocate appearing on

behalf of defendant that present suit is misconceived is

rejected being devoid of any force for the reasons hereinafter

mentioned. Plaintiffs have filed the suit on the basis of

contract of sale Ext.PW1/C and in alternative plaintiffs have

also sought relief of recovery of amount. It is held that

plaintiffs are legally entitled for recovery of Rs.59 lacs (Rupees

fifty nine lac) from the defendant. Defendant is under legal

obligation to return Rs.59 lac (Rupees fifty nine lac) to

plaintiffs. Issue No. 7 is decided accordingly.

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Relief

21. In view of above findings civil suit is partly

decreed. Decree for recovery of earnest money to the tune of

Rs.59 lac (Rupees fifty nine lac) is granted in favour of M/s

Twenty First Century Resorts and against the defendant.

Interest at the rate of 6% per annum is also granted from date

of institution of suit till realization of amount to the tune of

Rs.59 lacs (Rupees fifty nine lac). Other reliefs decline in the

ends of justice. Original contract Ext.PW1/C dated 10.7.2006

and receipt Ext.PW1/G dated 12.12.2009 will form part and

parcel of decree sheet. Parties are left to bear their own costs.

Decree is passed accordingly. Learned Registrar Judicial will

prepare decree sheet in accordance with law forthwith. Suit

stands disposed of. Pending miscellaneous application(s) if

any also stands disposed of.

May 17, 2016 (P.S. Rana)

ms. Judge

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