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IN THE HIGH Court OF PUNJAB AND HARYANA AT CHANDIGARH

222 RSA-4204-2013 (O&M)

Reserved on: 13.02.2025

Pronounced on:18.03.2025

Tej Singh ...Appellant(s)

Vs.

Trilok Chand ...Respondent(s)

CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA

Present:-Mr. Akshay Bhan, Senior Advocate assisted by

Mr. Santosh Sharma, Advocate and

Mr. Varun Sandhu, Advocate

for the appellant.

Mr. Adarsh Jain, Advocate with

Ms. Amandeep Kaur, Advocate and

Ms. Kamaldeep Kaur, Advocate

for the respondent.

***

NIDHI GUPTA, J.

The defendant is in second appeal against the concurrent

judgments and decrees of the learned Courts below, whereby the suit for

possession by way of specific performance of the Agreement to Sell dated

23.11.2005 filed by the plaintiff/ respondent herein, has been decreed by

the learned trial Court vide judgment and decree dated 25.04.2012

holding the plaintiff entitled to money decree for return of earnest money

of Rs. 8 lacs from the defendant with interest @ 6% per annum from the

date of institution of suit till the realization of the amount. The Civil

Appeal No. 66 dated 25.05.2012 filed by the defendant against the said

judgment and decree dated 25.04.2012 was dismissed by the learned

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Additional District Judge, Faridabad vide judgment and decree dated

26.04.2013; and the cross-objections filed by the plaintiff were allowed

with costs decreeing the suit of the plaintiff; and the defendant was

directed to clear the mortgage with the Syndicate Bank, Seekri, within 15

days of the passing of the said judgment and thereafter, he shall be liable

to get the sale deed executed in favour of the plaintiff within 30 days

thereof on payment of balance sale consideration by the plaintiff.

2. The parties shall hereinafter be referred to as per their status

before the learned trial Court i.e. the appellant is the ‘defendant’; and the

respondent is the ‘plaintiff’.

2. The brief facts of the case as set out in the plaint are that on

23.11.2005, the defendant entered into contract with the plaintiff to sell

his agricultural land as detailed in para 1 of the plaint, situated within the

revenue estate of Vill. Piala, Teh. Ballabgarh, Distt. Faridabad total

measuring 8 kanal 13 marla for a sum of Rs.28,32,875/-. The defendant

received a sum of Rs. 3 lacs on 23.11.2005 as part payment from the

plaintiff and he executed an Agreement to Sell and receipt on the said

date. The defendant on 25.11.2005 further received a part payment of Rs.

5 lacs from the plaintiff in which Rs. 4 lacs was paid in cash and Rs. 1 lac

through cheque No. 051910 dated 25.11.2005. So the defendant received

a total sum of Rs. 8 lacs from the plaintiff and he also executed a separate

receipt on 25.11.2005 in favour of the plaintiff. The land in dispute was

under mortgage with the Syndicate Bank, Seekri and as per terms and

conditions of the Agreement, it was for the defendant to get the land free

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from all kinds of encumbrances. The plaintiff was always ready and willing

to perform his part of contract and is still ready and willing to perform his

part of contract but the defendant did not perform his obligation despite

repeated requests of the plaintiff. The sale deed was agreed to be

executed and got registered on or before 30.05.2006 but the said day was

a public holiday and so the plaintiff went in the office of Sub Registrar,

Ballabgarh on 31.5.2006 along with balance sale consideration amount

and miscellaneous expenses but the defendant did not turn up to perform

his part of agreement. On 29.05.2006, the plaintiff had also obtained a

copy of jamabandi and found that the land was still having lien of the bank

and was not got released by the defendant. Thereafter a legal notice

dated 30.5.2006, was also served upon the defendant to get the land

released from the lien of the bank and execute the sale deed in favour of

the plaintiff but in vain forcing the plaintiff to file the present suit.

4. Upon notice, the defendant appeared and filed written

statement contesting the suit on various grounds inter alia stating that the

target date of 30.05.2006 being public holiday, the defendant had duly

reached the office of Sub Registrar for execution of sale deed on

31.05.2006 but the plaintiff did not reach the office of Sub-Registrar along

with balance sale consideration amount and other miscellaneous

expenses. It was further stated in the written statement that the

defendant had received a notice dated 30.5.2006 through counsel of the

plaintiff which was duly replied on 7.6.2006 requesting the plaintiff to

deduct the mortgage amount and pay the balance amount to the

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defendant and get sale deed executed in his favour on 22.06.2006; but

again the plaintiff did not turn up in the office of Sub-Registrar on the said

date to get the sale deed executed in his favour. It was the plaintiff who

could not arrange for the balance payment and thus, failed to perform the

terms and conditions of the Agreement dated 23.11.2005. So, the

defendant was always ready to perform his part of contract; whereas

plaintiff failed to pay the balance sale consideration amount due to which

defendant also suffered in the Agreement to Sell.

5. No replication was filled to the written statement of the

defendant.

6. From the pleadings of the parties following issues were

framed by the learned trial Court vide order dated 24.02.2010:-

1) Whether the defendant had entered into an

agreement to sell the suit property on 23.11.2005 for a

sum of Rs.28,32,875/-? OPP.

2) Whether the defendant received a sum of Rs.3 lacs

as part payment of earnest money from the plaintiff?

OPP.

3) Whether the plaintiff was always ready and willing

to perform his part of contract? OPP.

4) Whether the plaintiff is entitled a decree for specific

performance? OPP.

5) Whether the plaintiff have no locus standi to file the

present suit? OPD.

6) Whether the suit of plaintiff is not maintainable?

OPD.

7) Relief.

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7. Upon appraisal of the pleadings and the evidence led by the

parties, the learned trial Court decided the issues No. 1, 2, 3, and 4 in

favour of the plaintiff and against the defendant; issues No. 5 and 6 were

decided against the defendant; and the learned trial court partly decreed

suit of the plaintiff vide judgment and decree dated 25.04.2012 with costs

holding the plaintiff entitled to money decree for return of the earnest

money of Rs.8 lacs from the defendant along with interest @ 6% per annum

from the date of institution of the suit till the realization of amount.

8. The Civil Appeal No. 66 dated 25.05.2012 filed by the

defendant against the said judgment and decree dated 25.04.2012 was

dismissed by the learned Additional District Judge, Faridabad vide judgment

and decree dated 26.04.2013; and the cross-objections filed by the

respondent/plaintiff were allowed with costs decreeing the suit of the

plaintiff for possession by way of specific performance of the Agreement to

Sell dated 23.11.2005. The defendant was directed to clear the mortgage

with the Syndicate Bank, Seekri, within 15 days of the passing of the

judgment and thereafter, he shall be liable to get the sale deed executed in

favour of the plaintiff within 30 days thereof on payment of balance sale

consideration by the respondent/plaintiff. Hence, the present second

appeal by the defendant.

9. Vide order dated 8.10.2015, a Coordinate Bench of this Court

had granted stay of execution of the judgment and decree of the learned

trial Court subject to deposit of ₹8 lakhs with interest within four weeks. Ld.

Senior counsel for the appellant has informed on instructions that the said

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amount stands deposited. At the very outset, it is submitted by learned

Senior Counsel for the defendant that defendant, at present, is aggrieved

only of the judgment and decree dated 26.4.2013 of the learned first

appellate Court directing specific performance of the contract. It is only on

instructions, that the said amount of Rs. 8 lacs has been duly deposited by

the appellant in pursuance of the order dated 8.10.2015 of this Court.

10. Learned Senior Counsel appearing on behalf of the

appellant/defendant assails the judgment and decree dated 26.04.2013 by

submitting that as the date set for execution of sale deed i.e. 30.05.2006

was declared a holiday, on 31.05.2006 both the parties had duly appeared

before the Sub Registrar, Ballabgarh. However, prior to that on 30.05.2006

itself, the plaintiff had issued legal notice (Ex.D1) to the defendant. It is

contended that the very fact that the plaintiff had immediately served

notice upon the defendant demonstrated that he was not in possession of

the funds necessary for performance of the contract. Nonetheless, the

defendant had duly replied to the said legal notice vide reply dated

07.06.2006 (Ex.D2) thereby asking the plaintiff to deduct the mortgage

amount and pay the balance amount to the defendant and get his sale deed

executed on 22.06.2006. It is contended that however, as the plaintiff did

not have the balance sale consideration, he had failed to put in appearance

before the office of Sub-Registrar on 22.06.2006. Therefore, it was the

plaintiff who had failed to perform his part of the contract dated

23.11.2005. It is further argued that even on 31.5.2006, despite the

presence of both the parties before the Sub Registrar, the sale deed could

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not be executed as the plaintiff did not have sufficient funds. It is contended

that as such it was the plaintiff who had failed to demonstrate his readiness

and willingness to perform the contract; and, therefore, the learned lower

appellate Court is in patent error in decreeing the suit of the plaintiff.

11. Ld. Senior Counsel relies upon recent judgment of the Hon’ble

Supreme Court in ‘R. Shama Naik vs. G. Srinivasiah’ 2024 INSC 927, to

submit that two specific ingredients are required to establish i.e. readiness

and willingness: (a) presence in the Tehsil; (b) demonstrate availability of

funds. However, as stated above, the plaintiff had failed to demonstrate

availability of funds; and had therefore failed to establish his readiness and

willingness to perform the contract.

12. To buttress his contention, learned Senior counsel refers to the

cross-examination of the plaintiff as PW1 (available at page No. 229 of the

LCR), as per which, it is contended that plaintiff was unable to prove the

source of funds. Ld. Senior counsel refers to the cross-examination of the

plaintiff wherein although the plaintiff had claimed that he had come to the

office of the Sub-Registrar on 31.05.2006 with Rs. 20 lacs in cash, however

he had been unable to satisfyingly disclose the source of the said money.

The plaintiff had stated in his cross-examination that the said funds were

obtained by him as he had got a registry done in respect of a piece of land

owned by him. However, the plaintiff had admitted in his cross-examination

that he did not have any paper of the said Registry, and that the entire

amount was taken by him in cash. Simultaneously, in contradiction he had

stated that he could not tell how much he had taken in cash and how much

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by way of draft; that he did not remember the date of transaction. On a

suggestion being put to the plaintiff, he had denied that he got the Registry

done as he did not have the money. It is submitted that therefore the

plaintiff had failed to demonstrate his readiness and willingness.

13. Learned Senior Counsel further submits that there was no

error or defect in the request of the defendant in asking the plaintiff to

redeem the mortgage and perform the contract in view of the judgment

passed by a Coordinate Bench of this Court in ‘Gamdoor Singh vs. Ajaib

Singh’ Law Finder Doc Id # 410592.

14. It is further contended by learned Senior Counsel for the

defendant that the learned Appellate court below has returned perverse

findings to the effect that, as the land was not got redeemed prior to the

target date of execution of the sale deed therefore, the plaintiff is entitled

to decree. It is submitted that the Id. Courts below have failed to appreciate

that the redemption of the mortgage was not a condition precedent for the

purpose of execution of sale deed. It is contended that for the fault of

plaintiff, the defendant cannot be made to suffer. Once the plaintiff has

failed to prove the readiness and willingness on their part for execution of

sale deed, they have lost every right to pray for specific performance as well

as alternative relief return of earnest money.

15. It is further contended that both the learned Courts below

have failed to appreciate that it is a duty of the plaintiff to stand it’s case

upon its legs. Once the plaintiff has failed to discharge the said onus, his suit

was to be dismissed in toto. In the present case also when through the

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reply to the legal notice, a specific date was given to the plaintiff for

execution of sale deed and even on the said date, the plaintiff had

admittedly failed to appear before the office of the Sub-Registrar thus the

alternative relief of return of earnest money cannot be granted in his

favour.

16. It is the last contention on the part of learned Senior Counsel

representing the defendant that the Agreement to Sell was dated

23.11.2005; of which sale deed was to be executed on 30/31.05.2006; legal

notice was received on 30.05.2006; reply by the defendant given on

07.06.2006, as per which target date was set for 22.06.2006. Learned

Senior Counsel points out that, yet suit was filed almost 3 years thereafter

on 27.05.2009, two days before limitation was to expire. It is contended

that from the said conduct of the plaintiff, it is clear that he was not ready

and willing to perform the contract. It is further submitted that the delay in

filing of the civil suit is also a factor to draw adverse inference against the

plaintiff.

17. In this regard, learned Senior Counsel relies upon the judgment

passed by a Coordinate Bench of this Court in ‘Sant Ram vs. Brij Mohan

Kaura and another’ Law Finder Doc Id # 120449, wherein it is held that if

the suit is filed after a long unexplained delay, even if the suit was filed

within limitation, the Court will consider its effect and may grant alternate

relief of refund of earnest money.

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18. It is accordingly prayed that the present appeal be allowed;

and the impugned judgments and decrees of the ld. Courts below be set

aside.

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

vehemently opposes the prayer made on behalf of the appellant and

submits that in the Agreement to Sell dated 23.11.2005 (Ex.P1), the specific

stipulation of Clause 10 was that the suit land was mortgaged with the Bank

and the appellant/defendant had to get it redeemed. It is contended that

the question of readiness and willingness to perform the contract on part of

the plaintiff would come after the fulfilment of the condition contained in

the Agreement to Sell. It is submitted that it is an admitted fact on record

that the defendant had failed to comply with the said condition; and,

therefore, the defendant could not compel the plaintiff to deposit the

remainder amount in performance of the contract. In this regard, learned

counsel also refers to the provision of Section 13C of the Specific Relief Act,

1963.

20. Learned counsel for the plaintiff submits that as per terms of

Section 13(c) of the Specific Relief Act the onus was on the defendant to

redeem the mortgage. The plaintiff can mandate the defendant to discharge

his onus; however, it is not for the defendant to mandate the plaintiff to

deposit the money. Moreover, it is an admitted position that it was a

bilateral agreement between the plaintiff and the defendant, as per which it

was mutually agreed between the parties that the defendant would redeem

the mortgage. Now by way of unilateral action or writing in the reply dated

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07.06.2006, the defendant could not compel or dictate the plaintiff to pay

the mortgage amount and deposit the remaining amount for performance

of contract. It is accordingly submitted that the judgment and decree of

learned lower appellate Court suffers from no error whatsoever; and,

therefore, prays that the present appeal be dismissed.

21. No other argument is raised on behalf of the parties.

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

case file, as also the lower court record in minute detail.

23. To briefly recapitulate, the admitted facts on record are that

the plaintiff and the defendant entered into Agreement to Sell dated

23.11.2005 (Ex.P1), as per which the defendant had agreed to sell

agricultural land measuring 8K 13M/suit land to the plaintiff for total sale

price of Rs. 28,32,875/-. A sum of ₹8 lakhs was paid as earnest money in the

manner described above, and as evident from the receipts Ex.P-2 and Ex. P-

3. Target date for execution of sale deed was fixed for 30.5.2006. The same

being a public holiday, the defendant went to the office of the Sub-Registrar

on 31.5.2006, where his presence was marked as Ex.D3 & Ex.D4. The

plaintiff was also present in the office of the Sub Registrar on 31.5.2006 and

his presence is proved from his affidavit of presence (Ex.P7) (at page 87 of

the lower Court record). However, upon receipt of information on 29.5.2006

by way of jamabandi (Ex.P8), the plaintiff knew that the suit land was still

encumbered. As such, on 30.5.2006 itself, the plaintiff had served legal

notice Ex. P-4 upon the defendant; to which he filed reply dated 7.6.2006

Ex. P-5. In the said reply, the defendant had offered to the plaintiff that

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plaintiff should redeem the mortgage and adjust the amount payable; and

further that defendant will remain present before office of Sub-Registrar on

22.6.2006 for execution of aforesaid sale agreement. However, plaintiff

never appeared on the said date. Instead, the plaintiff filed the present suit

on 27.5.2009. Vide judgment and decree dated 25.4.2012, the learned trial

Court granted alternative relief of money decree in favour of the plaintiff.

Against the said judgment and decree dated 25.4.2012, the defendant

preferred appeal; and cross-objections were also filed by the plaintiff. Vide

the impugned judgment and decree dated 26.04.2013 the Appeal of the

defendant was dismissed and cross-objection of plaintiff was allowed, and

suit for specific performance was decreed.

24. It has been submitted by learned Senior Counsel for the

appellant that on 31.05.2006 when the defendant and the plaintiff had met

at Tehsil, the defendant had orally conveyed to the respondent/plaintiff to

redeem the mortgage and deduct the amount of mortgage and pay the

balance sale consideration to the defendant in order to execute the sale

deed. It has also been submitted on behalf of the defendant that the

plaintiff had served legal notice dated 30.05.2006 (Ex.P4) (at page 93 of the

lower Court record) upon the defendant, the relevant paras 6 and 7 read as

follows:

“6. That on 30.05.2006, my client was ready and willing to

perform his part of contract, but the suit land was not clear

from the loan of Syndicate Bank. My above said clients

obtained copy of Jamabandi from the Patwari on 29.5.2006 in

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which the entire land was under pledge with the Bank for a

sum of Rs.9,50,000/-.

7. That through this notice, I call upon you to deposit the loan

amount with the Syndicate Bank and obtained clearance

certificate from the Syndicate Bank, Seekri and after that you

execute and got registered the sale-deed in favour of my above

said client as per agreement of sale dated 23.11.2005 within

15 days of the receipt of this notice, after intimation to my

client by registered post, after clearing loan amount to the

Bank. If you failed to comply the notice, in that case, you will

be responsible for all the costs, expenses and damages of my

client. Copy of this notice has been kept in my office.”

25. It is the contention of learned Senior counsel for the defendant

that the appellant had again duly apprised the plaintiff vide reply dated

07.06.2006 (Ex.P5) (available at page 95 of the lower Court record), that

the plaintiff should redeem the mortgage and get the sale deed executed,

as follows:-

“6. That the para no. 6 of the legal notice is wrong and denied.

Your client could not arrange the sale consideration, so the

question of ready and willingness to perform his part of

contract does not arise.

7. That the prayer clause of para no. 7 of the legal notice is not

applicable upon my client. You advise your client to withdraw

the said legal notice and get sale deed execute within 15 days.

i.e upto 22.6.2006 to get the sale deed execute, after deducting

loan amount from the sale consideration failing which your

earnest money will be forfeited as per the terms and conditions

of the agreement to sell dt. 23.11.2005.”

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26. It has been contended that therefore, as the defendant had

asked the plaintiff to clear the mortgage, deduct the mortgage amount, and

execute the sale deed, it was the plaintiff who had failed to perform the

agreement.

27. I find no merit whatsoever in the said argument of learned

Senior Counsel. It is undisputed that as per the clause 10 of the Agreement

to Sell dated 23.11.2005 (Ex.P1) (available at page 79 to 81 of the lower

Court record), the onus to free the suit land from encumbrances and

redeem the mortgage was upon the defendant. The defendant cannot

unilaterally alter the terms and conditions of the Agreement. Both parties

are bound by the Agreement. Admittedly, on 29.05.2006 i.e. the day prior

to the target date of 30.5.2006, the plaintiff had visited Tehsil office and had

got jamabandi (Ex.P8) which reflected lien of Syndicate Bank upon the suit

land still existed. There is nothing on record to indicate that the said lien

had been cleared by the defendant on/ or by 31.5.2006. It is not even the

case of the defendant that the land was free from encumbrances on

31.5.2006. As such, it was the defendant who had failed to comply with a

condition precedent set in the Agreement itself.

28. In this regard, reference needs also be made to provision of

Section 13C of the Specific Relief Act, 1963 which reads as follows: -

“Where the vendor professes to sell unencumbered property,

but the property is mortgaged for an amount not exceeding the

purchase money and the vendor has in fact only a right to

redeem it, the purchaser may compel him to redeem the

mortgage and to obtain a valid discharge, and, where

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necessary, also a conveyance from the mortgagee” (emphasis

added)

29. In view of the above clear stipulation of law, I am in agreement

with the argument of learned counsel for the plaintiff that as per law, it is

the plaintiff who can compel the defendant to pay the mortgage amount,

and not the other way around.

30. Further, the defendant can derive no benefit from the relied

upon judgment in case of Gamdoor Singh supra as in the said case, it was

not a condition precedent stipulated in the Agreement in question that the

mortgage upon the suit land would be redeemed by the defendant prior to

execution of sale deed. Whereas, in the present case, it is undisputed that

as per clause 10 of the Agreement to Sell dated 23.11.2005 (Ex.P1) the onus

to free the suit land from encumbrances and redeem the mortgage was

upon the defendant. In fact, reliance of learned Senior Counsel for the

defendant upon judgment of Gamdoor Singh supra is based on a

misreading thereof as, in para 12 it is held as follows:-

“12. The bare argument that since the land was already

mortgaged with Punjab & Sind Bank, therefore, the defendant

had no right to sell the property, in this regard it may also be

observed that the mere fact that the land was mortgaged with

the bank, relief of specific performance could not be denied

because the encumbrance attached to the land could be

removed by the defendant before effecting the sale and no

objection could be obtained from the bank or the prospective

vendee stepping into the shoes of the mortgagor, is liable to

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pay the mortgage money if the terms are so settled.”

(Emphasis added)

31. Thus, even as per Gamdoor Singh supra, plaintiff could have

been asked to redeem the mortgage on the suit land ‘if the terms are so

settled.’ That is not so in the present case.

32. It has next been argued by Ld. Senior Counsel for the

defendant that the plaintiff had failed to demonstrate his readiness and

willingness to perform the contract. It has been argued on behalf of the

defendant that despite the presence of both the parties in the Tehsil on

31.5.2006, sale deed was not executed as the plaintiff did not have the

funds necessary to make the payment of loan amount of the Bank as also

the funds necessary for performance of contract.

33. I find that the above argument is also liable to be rejected. It is

my clear view that first and foremost, the question of ascertaining the

readiness and willingness of the plaintiff to perform the contract would

arise only after redemption of the mortgage by the defendant. In the

present case, admittedly, defendant had failed to comply with condition

precedent for execution of sale deed. As such, it was the defendant in the

first instance, who had failed to perform the contract.

34. Moreover, despite vehement arguments to the contrary, I find

there is nothing on record to establish that the plaintiff was not ready and

willing to perform the contract. The plaintiff had admittedly come present

in the office of Sub Registrar on 31.05.2006 as evident from his affidavit of

presence (Ex.P7) (at page 87 of the lower Court record). A perusal of para

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Nos. 4 and 5 of the said affidavit (Ex.P7) reveals that the plaintiff has

categorically stated as under:-

“4.I was always ready and willing to execute the sale deed.

On 29.05.2006, I had gone to the Patwari from where I got

copy of jamabandi as per which there is bank loan subsisting

for an amount of about Rs.9.5 lacs. As such, till the said

amount is not repaid, sale deed cannot be executed. I had told

the vendor to repay the said loan yet, he has not done the

needful.

5.Today on 31.05.2006, I am present to get the sale deed

registered. But the land is not free from encumbrances nor of

bank lien as such sale deed cannot be executed. I am present

here with remaining amount (mai bakaya rakam lekar haazir

hoo).”

35. Thus, it was the unequivocal assertion of the plaintiff that he

was present in the office of the Sub Registrar on 31.5.2006 ‘with the

balance sale consideration’.

36. In this regard, learned Senior Counsel has referred to the cross-

examination of the plaintiff to submit that the plaintiff had failed to

demonstrate availability of funds. However, the same is a tenuous argument

as the plaintiff has categorically stated during his cross-examination that he

had received the said amount of Rs.20 lacs in pursuance to execution of a

sale deed registered by him by selling some land. The suggestion of the

defendant to the effect that the plaintiff did not have a requisite sale

consideration to execute the sale deed, has been specifically denied by the

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plaintiff during his cross-examination. As such, this argument of the

defendant is based on conjectures and surmises.

37. In any event, as already noticed above, the question of

determining availability of funds with the plaintiff would arise only after the

defendant has fulfilled his part of contract viz. that he has got the mortgage

redeemed. It is the admitted case of the defendant that he had not got the

mortgage redeemed. Merely to unilaterally mandate the plaintiff to get the

mortgage redeemed and deduct the said amount and pay the balance

amount to the defendant is not sufficient. In this regard, reference may be

made to the fairly recent judgment of the Hon’ble Supreme Court in ‘R.

Lakshmikantham vs. Devaraji’ Law Finder Doc Id # 1540938. For context,

the factual background of the said case, which is similar to the facts in the

present case, is also being reproduced hereinbelow:-

“3. By an agreement to sell dated 22.09.2002, the suit-

property was to be sold for a sum of `3,65,000/-. Certain

clauses of the agreement are important and are set out

hereinbelow:

1. The sale price of the property mentioned in the

schedule hereunder shall be `3,65,000/-(Rupees

Three Lakhs and Sixty Five Thousand only).

2. The party of the second part has paid a sum of

`5,000/-(Rupees Five Thousand only) towards

advance by cash and the party of the first part

hereby admit and acknowledge the receipt of the

same.

3. The balance sale consideration shall be paid by

the party of the second part to the party of the

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first part within three months from today. The

party of the first part agrees to execute sale deed

on the day on which the balance sale

consideration is paid.

4. The party of the second part agrees to pay part

of the sale consideration of `60,000/-(Rupees

Sixty Thousand only) to the party of the first on or

before 10th day of October.

5. The party of the first part had handed over the

original title documents to the mortgagee and the

party of the second part shall settle the loan,

receive the documents from the mortgagee and

keep the same in his custody.

XXX XXX XXX

8. If there is no encumbrance to the schedule

property and when the party of the second part is

willing to pay the balance sale consideration, the

party of the first shall execute sale deed in favour

of the party of the second part or her nominee. If

the party of the first part refuses to do so, the

party of the second part is entitled to take legal

action.”

4. It is stated that at the time of the sale agreement, the suit

property was worth roughly a sum of `6 lakhs, but the parties

finally agreed and the defendant, in particular, agreed to sell

the aforesaid property for `3.65 lakhs. A perusal of the

agreement to sell would show that though clause 3 requires

that the balance sale consideration will be paid within three

months from the date of the agreement and that the seller will

execute the sale deed on the date on which balance sale

consideration was paid yet, clauses 5 and 8 clearly show that

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the original title deeds which are with the mortgagee had yet

to be handed over and the mortgage had yet to be redeemed.

It is only when this is done that clause 3 would kick in, showing

that the time of three months is obviously not of essence.

5. Soon after the agreement, the plaintiff sent a registered

letter dated 18.12.2002 to the present address of the

defendant reminding the defendant that `5000/- had been

received on the date of signing the agreement and `60,000/-

had been received on 14.10.2002. Despite this, the original title

documents were not obtained from the mortgagee and hence

the mortgage could not be discharged. The letter then goes on

to state that repeated calls were made and that the plaintiff is

ready with the balance money, and that the defendant should

come forward immediately to discharge the mortgage, get all

documents from the mortgagee, and register the sale deed.

This registered A.D. letter was returned to the sender stating

that the addressee did not receive the same for the past one

week. The same was the fate of another legal notice on the

very next date, i.e., 19.12.2002. Finally, on 07.07.2003, the

plaintiff sent a legal notice referring to the earlier legal notice

of 19.12.2002 and called upon the defendant to immediately

comply with the terms of the agreement. To this notice, which

was admittedly received by the defendant at the very same

address, no reply was given. Thereafter, the present suit for

specific performance was filed by the plaintiff in February,

2005.

6. Given these facts, the trial Court, by its judgment dated

12.09.2008, held that the suit agreement was proved and that

three notices sent by the plaintiff were also proved, it being

clear that the defendant was attempting to wriggle out of his

obligations under the agreement. Though the suit was filed

RSA-4204-2013 (O&M) Page 21 of 28

belatedly, the trial Court felt that as the defendant did not

furnish the address of his mortgagee or take steps to clear the

mortgage, it was clear that the defendant was attempting to

wriggle out of the agreement. Further, the plaintiff’s readiness

and willingness was proved by the fact that he has necessary

funds as on the date of the agreement, and thereafter, as was

stated by him in his letter dated 18.12.2002. This being the

case, the Court ordered specific performance as the balance

sale consideration had already been deposited into the Court

on the date of the filing of the Suit. The first appeal from the

aforesaid judgment was dismissed on 20.12.2010 by the

Principal District Judge. The District Judge found concurrently

for the plaintiff on all the points argued and hence dismissed

the first appeal.

7. By the impugned judgment, the High Court reversed the

concurrent judgments and held, on a construction of the

agreement, that since only three months were given to

complete the sale transaction, time was of essence. It also

went on to hold that the two letters dated 18.12.2002 and

19.12.2002 could not have been said to have been served on

the defendant and hence were not proved. The High court

recorded the defendant’s advocate’s statement that it was not

going into other aspects except that plaintiff was not ready and

willing throughout to perform the sale agreement. Despite this,

the High Court held that since the Suit itself was filed belatedly,

it would not be enough for the plaintiff to show that he had the

necessary funds. It would also have been necessary for him to

show that he was otherwise ready and willing throughout,

which cannot be said to be correct considering that there was a

long time gap between 22.09.2002 and 07.07.2003 inasmuch

as the intermediate letters/notices were not proved. The High

Court also further stated that the property value was Rs.10

RSA-4204-2013 (O&M) Page 22 of 28

lakhs on the date of the sale agreement, though this was not

proved by the defendant, and then went on to state that since

readiness and willingness had to be held against the Plaintiff,

and since the Suit itself was belated, specific performance

cannot be granted on the facts of this case and, as stated

earlier, reversed the concurrent findings of the Courts below.

8.We have heard learned counsel for the appellant.

9. The High Court has, in the second appeal, obviously gone

wrong on a number of counts. First, to hold that time was of

essence in the agreement, is wholly incorrect. Clause 3 has to

be read along with clauses 5 and 8, which clearly show that in

the nature of reciprocal promises, the promise made by the

seller in clause 5 has to be performed first, viz., that the title

documents have to be obtained from the mortgagee after the

mortgage is cleared. It is only then that the consideration

above Rs.70,000/-, being the balance consideration for the

sale, has to be paid. Secondly, the High court is wholly incorrect

in stating that the two letters of 18.12.2002 and 19.12.2002

cannot be said to have been proved. Both the letters were

registered A.D. letters sent to the very address of the

defendant, which the defendant states is the address on which

it received the legal notice dated 07.07.2003. Further, the

moment the registered letter once sent is returned with the

remarks mentioned hereinabove, it shall be deemed to have

been served on the defendant on the address so stated, unless

the contrary is proved. The defendant did not come forward

with anything to show that this was not the proper address. In

fact, that this is the proper address is shown by the fact that he

acknowledged the receipt of the legal notice dated 07.07.2003

on this very address.

RSA-4204-2013 (O&M) Page 23 of 28

10. The High Court order is not correct in stating that readiness

and willingness cannot be inferred because the letters dated

18.12.2002 and 19.12.2002 had not been sent to the

defendant. The High Court also erred in holding that despite

having the necessary funds, the plaintiff could not be said to be

ready and willing. In the aforesaid circumstances, the High

Court was also incorrect in putting a short delay in filing the

Suit against the plaintiff to state that he was not ready and

willing. In India, it is well settled that the rule of equity that

exists in England, does not apply, and so long as a Suit for

specific performance is filed within the period of limitation,

delay cannot be put against the plaintiff – See Mademsetty

Satyanarayana v. G. Yelloji Rao and others  AIR 1965

Supreme Court 1405 (paragraph 7) which reads as under:

“(7) Mr. Lakshmaiah cited a long catena of English

decisions to define the scope of a Court’s discretion. Before

referring to them, it is necessary to know the fundamental

difference between the two systems-English and Indian-qua the

relief of specific performance. In England the relief of specific

performance pertains to the domain of equity; in India, to that

of statutory law. In England there is no period of limitation for

instituting a suit for the said relief and, therefore, mere delay –

the time lag depending upon circumstances – may itself be

sufficient to refuse the relief; but, in India mere delay cannot be

a ground for refusing the said relief, for the statute prescribes

the period of limitation. If the suit is in time, delay is sanctioned

by law; if it is beyond time, the suit will be dismissed as barred

by time; in either case, no question of equity arises.” emphasis

supplied

RSA-4204-2013 (O&M) Page 24 of 28

38. The above pronouncement also demolishes the argument of

the defendant to the effect that the plaintiff had filed the suit at the fag end

of expiry of limitation.

39. In the facts and circumstances of the present case, reference

may be made to another judgment of the Hon’ble Supreme Court in

‘Laxman Tatyaba Kankata and another vs. Smt. Taramati Harishchandra

Dhatrak Law Finder Doc Id # 212000. The relevant paras read as under:-

“10. The findings and the conclusions of fact and law arrived at

by the Courts were affirmed by the High Court which sustained

the decree passed by the First Appellate Court. The learned

counsel appearing for the appellants vehemently argued that

the decree for specific performance could not have been

passed by the Courts against the appellants, as the property

was mortgaged to the cooperative society, and the property

being under the charge of the society, no title could be passed

in favour of the respondent. Secondly, it was contended that

the Courts have failed to appreciate the evidence in its correct

perspective and the judgment under appeal is liable to be set

aside. Lastly, it was contended that during the pendency of the

proceedings, the value of the land has increased tremendously

and it would be unjust and unfair to pass a decree for specific

performance in favour of the respondent.

XXX XXX XXX

13. In the present case, the appellants have neither claimed

any issue nor led any evidence before the Court to substantiate

even this plea. Furthermore, the learned First Appellate Court

while relying upon the judgment of this Court in the case of

Nathulal v. Phoolchand [ AIR 1970 Supreme Court 546], had

dealt with both these contentions rightly and in accordance

with the law. We see no reason as to how a presumption can

RSA-4204-2013 (O&M) Page 25 of 28

be raised against the respondent on face of the fact that the

appellants chose not to lead any evidence on either of these

aspects. These contentions raised on behalf of the appellants

are, therefore, without any substance. The learned counsel

appearing for the appellants drew our attention to Section

13(1)(c) of the Specific Relief Act, 1963 (for short 'the Act'),

which clearly postulates that where a person contracts to sell

immovable property with an Imperfect title and the property is

encumbered for an amount not exceeding the purchase money,

the purchaser has the right to compel the seller to redeem the

mortgage and obtain a valid discharge and then specifically

perform the contract in its favour. Even from this point of view,

the right of the present respondent is fully protected.”

40. Even the argument of learned Senior Counsel for the appellant

to the effect that the target date of 30.05.2006 was not held sacrosanct by

the plaintiff in view of the deeming extension given by the plaintiff is

untenable in the face of admitted fact that 30.05.2006 was a public holiday;

and, therefore, admittedly the plaintiff had made himself available on the

immediate next date 31.05.2006.

41. Further, the relevant findings of the ld. first appellate Court are

contained in paras 11, 12, 13, and 16 of the judgment and decree dated

26.04.2013, which read as under:-

“11. The parties also admit that the target date fixed for

execution of the agreement was 30.05.2006 which was a

holiday on account of Maharana Partap Jayanti. Both parties

contend that they appeared before the Sub Registrar,

Ballabgarh to fulfill their part of the agreement and it was the

other party which had not appeared due to which the sale-

RSA-4204-2013 (O&M) Page 26 of 28

deed could not be executed. In support of their claim, the

respondent has placed on record affidavit, Ex. P-7, while the

appellant has produced on record the affidavit, Ex. D-4. Both

these documents have been duly attested by the office of the

Sub Registrar, Ballabgarh. This Court is at a complete loss to

appreciate how the office of the Sub Registrar, Ballabgarh

could have attested both these affidavits on the same day. If

both these parties were present on 31.05.2006 in the office of

the Sub Registrar, there was no reason for not executing the

sale-deed. This fact reflects the negligent working of the said

office and the same is strongly deprecated.

Be that as it may, the fact remains that the parties

had apparently gone to the office of the Sub Registrar,

Ballabgarh but for reasons best known to them, the sale-deed

was not executed as they claimed that they had not met each

other. The respondent has produced on record copy of the

Jamabandi for the year 2001-02, Ex. P-8, which reflects that

the mortgage on the land had not been cleared by the owner

Tej Singh when the said copy was issued on 29.05.2006. This

means that even a day prior to the target date (30.05.2006),

the appellant had not got the mortgage redeemed. There is

nothing on record to show that he had got the mortgage

redeemed before 31.05.2006 on which date the parties next

appeared before the Sub Registrar. In fact, the version of the

appellant is that he had called upon the respondent vide reply,

Ex. D-2 (same as Ex. P-6) calling upon him to appear before the

Sub Registrar on 22.06.2006 to get the sale-deed executed.

However, there is nothing on record to show that the mortgage

was redeemed by them or that it has even been redeemed as

on date. In these circumstances, the Ld. Trial Court rightly

rejected the version of the appellant.

RSA-4204-2013 (O&M) Page 27 of 28

12. Further the contention of the appellant is that he would

have cleared the mortgage after obtaining the balance

payment from the respondent and there was an oral

agreement between the parties to this effect. This is a

completely unacceptable argument because as per clause(s) 10

of the agreement, Ex. P-1, the appellant was required to

redeem the mortgage prior to the target dated 30.05.2006. No

oral agreement between the parties could have over-ridden

this clause. In any case, the respondent denied any such

agreement and the appellant has failed to prove the same. In

these circumstances, the contention of the appellant that it is

the respondent who is responsible for not getting the sale-deed

executed is completely false as per record, rather it is apparent

that it is the appellant who had defaulted in getting the sale-

deed executed.

13. The next argument of the appellant was that the

respondent had never been ready and willing to perform his

part of the agreement and that he never had sufficient money

to get the sale-deed executed. This contention of the appellant

is also liable to be rejected as the respondent was not bound to

give a detailed a detailed account down to the last penny

regarding the balance sale consideration. In any case, aside

from the stray statement of the respondent in the cross-

examination, there is no other corroborative material on record

to show that he was lacking in funds to get the sale-deed

executed. Thus the Ld. Trial Court rightly disbelieved the

appellant on all the above issues and held that the respondent

had always been ready and willing to perform his part of the

agreement.

XXX XXX XXX XXX

16.In view of the foregoing discussion, the appeal is

dismissed and the cross-objections are allowed with costs.

RSA-4204-2013 (O&M) Page 28 of 28

Consequently, the suit filed by the respondent is decreed for

possession by way of specific performance of the agreement to

sell dated 23.11.2005. The appellant is directed to clear the

mortgage with the Syndicate Bank, Seekri, within fifteen days

of the passing of this judgment and thereafter, he shall be

liable to get the sale-deed executed in favour of the appellant

within thirty days thereof on payment of balance sale

consideration by the respondent/plaintiff.

In case of the appellant/defendant's failure to

redeem the mortgage within fifteen days from today, the

respondent shall be entitled to clear the mortgage on the suit

property by depositing the requisite amount with the Syndicate

Bank, Seekri. The remaining amount of sale consideration due

to the appellant after clearance of the mortgage shall be paid

to him thereafter, and the appellant shall then be liable to

execute the sale-deed of the suit land in favour of the

respondent/plaintiff.”

42. I find no error whatsoever in the above reasoning of the

learned First Appellate Court. In view of the above facts, the present regular

second appeal is hereby dismissed.

43. Pending applications, if any, stand disposed of.

18.03.2025 (NIDHI GUPTA)

Divyanshi JUDGE

Whether speaking/reasoned: Yes/No

Whether reportable: Yes/No