MOHINDER SINGH AND ANOTHER Vs. LAKHBIR SINGH

JUDGEMENT

(1.) The appellants-defendants are in Regular Second Appeal against the judgment and decree of lower Appellate Court, whereby the suit for specific performance of agreement to sell dated 07.11.2008, has been decreed and appellant-defendant has been called upon to perform his part of the agreement to sell by executing and registering the sale deed on receipt of balance sale consideration of '6.90 lacs out of total sale consideration of Rs. 14,90,000/-.

(2.) Mr. Arun Jain, learned Senior Counsel assisted by Mr. Kushagra Mahajan, Advocate for appellants submits, that the lower Appellate Court has committed illegality and perversity in rendering the findings on issue No.10 against the appellants-defendants, in essence, suit was not maintainable as the respondent-plaintiff had not sought any declaration vis-a-vis cancellation of the agreement and submits that stipulated date for agreement to sell aforementioned was 15.06.2009. The appellants-defendants served legal notice on 01.07.2009, whereby they cancelled the agreement and forfeited the earnest money. The aforementioned legal notice was duly replied by the letter dated 06.07.2009 wherein respondent-plaintiff had asked for liquidated damages. However while filing suit on 29.10.2009 only specific performance of agreement to sell has been sought. In support of contention, he has relied upon judgment of Hon'ble Supreme Court in I.S. Sikander (D) by LRs Vs. K. Subramani and ors., 2014 1 RCR(Civ) 236 and thus submits that following substantial question of law arise for determination:-

(3.) Mr. M.S. Bhatti, learned counsel appearing on behalf of respondent-plaintiff submits, that readiness and willingness on the part of respondent-plaintiff had been proved to the hilt by summoning the witness from the office of Sub Registrar as PW5 and the appellants-defendants had not been able to cause much dent in his cross-examination. The facts of the case in I.S. Sikander are not the similar to the one in the present case and, therefore, ratio decidendi culled out in the aforementioned judgment is not applicable. He further submits that ingredients of Section 16-C of the Specific Relief Act has been proved as the suit had been immediately filed on 29.10.2009 after receipt of the notice dated 01.07.2009. The findings of fact by the lower Appellate Court should not be interfered with while exercising power under Section 100 of the Code of Civil Procedure as no substantial question of law arises for determination. I have heard learned counsel for parties and appraised the paper book as well as case law cited at Bar.