SATPAL GOEL Vs. SURINCHALA HANDA

JUDGEMENT

(1.) Defendant is in second appeal. For convenience, the parties are being referred to by their original position in the suit before the Court of first instance i.e. the appellant as defendant and the respondent as plaintiff.

(2.) Plaintiff filed a suit seeking decree of possession by way of specific performance claiming that he along with defendant jointly purchased two parts of land measuring 2 kanals 13 marlas vide sale deed dtd. 24/1/2005 and land measuring 7 marlas 252 sq. feet vide sale deed dtd. 13/7/2005. Plaintiff is owner to the extent of 2/3rd share and defendant owned to the extent of 1/3rd share in the purchased land. Parties orally divided the same. Defendant was allotted a separate portion of land measuring 51 '-4" x 107'-6". Rest of the property came to the possession of plaintiff where he installed petrol pump. Vide Agreement to Sell dtd. 14/2/2008, defendant agreed to sell his 1/3rd share to the plaintiff for a valuable consideration of Rs.24.00 lakh. On the date of execution of agreement to sell, Rs.10.00 lakh was paid by the plaintiff to the defendant as earnest money. The parties agreed to get the sale deed executed on or before 11/8/2011. Plaintiff vide communication dtd. 17/5/2011 i.e. even prior to agreed date requested the defendant to execute the sale deed in her favour on receipt of balance sale consideration. The communication was responded to by the defendant through his counsel on 31/5/2011 denying execution of agreement to sell. Receipt of earnest money was also denied and it was claimed that agreement to sell was forged document. It was claimed that plaintiff obtained signatures of defendant on blank typed papers on the pretext of getting petrol pump allotted in the name of the defendant. Plaintiff vide communication dtd. 6/6/2011 refuted the claims of defendant and reiterated the factum of there being a valid legal agreement to sell. On 14/6/2011, the instant suit was filed seeking decree of possession by way of specific performance and in alternate decree for recovery of Rs.20.00 lakh i.e. double of the earnest money pleading cause of action having accrued to the plaintiff on 4/6/2011 i.e. when plaintiff came to know of denial of agreement to sell by the defendant.

(3.) Ld. Senior Counsel appearing for the appellant has argued that plaintiff failed to prove readiness and willingness and thus the Courts below erred in ignoring the mandate of Sec. 16(c) of the Specific Relief Act, 1963. It has been further claimed that the execution of agreement to sell was not duly proved. Neither scribe nor stamp vendor was examined. Even receipt of earnest money was not proved. Agreement to Sell misdescribed the property. The boundaries have been wrongly mentioned. No rectification in the agreement to sell was ever claimed, yet the Courts below granted the same, thereby travelling beyond the pleadings and thus the approach of the Courts below in decreeing the suit is illegal and the resultant judgments and decrees deserve to be set aside. Mr. Jhanji further submits that there was an abnormal long gap between the agreement to sell and execution of sale deed. Agreement to sell propounded by plaintiff is dtd. 14/2/2008. As per the same, the parties agreed to get the sale deed executed on or before 11/8/2011. Thus, there is an incomprehensible undue gap of 39 months. He further submits that it is beyond reasonable prudence that a person dealing with immovable property, that too in the present times, will agree to wait for 39 months to receive the balance sale consideration. He further submits that Appellate Court failed to return issue-wise findings and thus failed to comply with the mandate of Order 41 Rule 31 CPC. It has been argued that readiness includes financial capacity. There is nothing on record to suggest that the plaintiff ever was financially capable to perform her part. He thus submits that Courts below erred in decreeing the suit filed by plaintiff. To support his arguments he relies upon following precedents:-