HARBHAJAN SINGH Vs. SARUP SINGH

JUDGEMENT

(1.) This is regular second appeal against the judgment dated 10.12.2012 passed by Additional District Judge, SAS Nagar, Mohali, whereby the judgment and decree passed by the lower Court allowing the relief of specific performance of agreement dated 18.02.2005, was modified and decree for recovery of Rs.8,00,000.00 (paid as earnest money) along with interest @ 18% per annum from the date of agreement i.e. 18.02.2005 till payment, was passed in favour of plaintiff with proportionate costs.

(2.) Plaintiff-Appellant-Harbhajan Singh filed suit seeking relief of specific performance of the agreement dated 18.02.2005 with regard to the land measuring 2250 square yard as fully described in the headnote of the plaint situated at village Saidpura, Tehsil Derabasi, District Mohali. As per the appellant, defendant/respondent agreed to sell the above property for a sum of Rs.24,00,000.00 and received Rs.8,00,000.00 as earnest money at the time of agreement. The date for execution of the sale deed was fixed as 30.04.2005. On 30.04.2005 defendant-respondent came to the house of appellant and expressed his inability to execute the sale deed as he had failed to get the land redeemed from the Bank and informed the appellant that after getting the land redeemed he will intimate him. As a result of assurance of defendant, the plaintiff postponed the programme of getting the sale deed executed and registered on 30.04.2005, on which date he was having sufficient amount with him for payment of balance sale consideration and to incur other expenses. However, at that time the defendant handed over the possession of only one room out of the property in question to the defendant as part performance of the agreement in question, where the appellant has been running his office. When no intimation was received from the defendant-respondent, the appellant issued a legal notice dated 10.09.2007 upon the defendant, thereby calling upon him to execute the sale deed. However, that notice was got returned by the respondent with false report of postal authorities. Ultimately the suit for seeking the relief of specific performance was filed on 23.10.2007.

(3.) Learned Additional Civil Judge (Senior Division), Derabasi allowed the relief of specific performance with the observations that the defendant-respondent was at fault in not clearing loan amount, which was a condition precedent for execution of the sale deed. Secondly, the defendant was at fault and wanted to take advantage of steep rise in the prices of the property. The plea of defendant that he had been ready and willing to perform his part of the contract and had also appeared before the Sub-Registrar on 02.05.2005 as 30.04.2005 and 01.05.2005 were holidays, was discarded with the observation that 30.04.2005 was a working day. The defendant-respondent filed appeal wherein conclusion drawn by lower Court while allowing the relief of specific performance of the agreement that defendant was at fault in complying with the terms of agreement, was overruled with the observation that in order to succeed in suit for specific performance the plaintiff has to plead as well as to prove that he was always ready and willing to perform his part of the agreement. He cannot succeed merely by proving that defendant had not been ready and willing to perform his part of contract. On the basis of the document on record, it was observed that on 30.04.2005, the date fixed for execution and registration of the sale deed, was Saturday and as per the gazette notification dated 29.12.2004 the Government of Punjab had declared all Saturdays and Sundays in the year 2005 as holiday in public offices under the State Government. The appellate court took note of the fact that the defendant-respondent had appeared before the Sub-Registrar, Derabasi on 02.05.2005 and got his presence recorded vide affidavit Ex. DW1/B. The plaintiff-appellant had admitted that defendant told him about his coming to office of Sub-Registrar for execution and registration of the sale deed on 02.05.2005 but on that day the plaintiff avoided to go there. He had given explanation that he had not gone to the office of Sub-Registrar on 02.05.2005 as defendant had not cleared the loan taken against the land in question.