DINESH KUMAR Vs. VINOD KUMAR SHARMA

JUDGEMENT

(1.) C.M.No.9770-CII of 2011 For the reasons stated in the application, duly supported by an affidavit, delay of 10 days in re-filing the appeal is condoned. C.M. stands disposed of. RSA No.3480 of 2011 (O&M) Appellant-defendants are aggrieved of the judgment and decree rendered by the Lower Appellate Court, whereby, suit seeking specific performance of the agreement to sell dated 29.04.1995 in respect of the shop agreed to be sold for total sale consideration of Rs. 1,50,000/-, has been decreed in to by setting aside the judgment and decree of the trial Court, dismissing the suit.

(2.) Mr. Mukesh Mittal, learned counsel appearing on behalf of the appellant-defendants submits that target date for the aforementioned agreement against receipt of earnest money of Rs. 20,000/- was 15.07.1995. However, the same was alleged to have been extended to 08.08.1995 on receipt of another payment of Rs. 30,000/- which was again allegedly extended upto 12.09.1995 but no explanation has come forth on behalf of the respondent-plaintiffs in not filing the suit within reasonable period. Even the suit has been filed a day before expiry of limitation and therefore, the readiness and willingness, as per the provisions of Section 16(c) of the Specific Relief Act, 1963 was conspicuously wanting. The trial Court on the basis of the oral and documentary evidence dismissed the suit but the Lower Appellate Court erroneously reversed such findings. He further submits that originally shop was owned by Nathu Singh and after his death, it was transferred in the name of his legal heirs, namely, Maya Devi, Mohinder Kumar and Surinder Kumar. Surinder Kumar had also died and he was survived by his wife Asha Rani and son Ashish, whereas, the agreement to sell was signed by only Asha Rani and not by Ashish. Though the appellants admitted the execution of the agreement to sell but the endorsement of extension of time and as well as, payment of Rs. 30,000/- had emphatically been denied. All these facts would reveal that plaintiffs had never been ready and willing to perform their part of the contract and therefore, the discretionary relief under Section 20 of the Specific Relief Act, ought not to have been granted. He, thus, urges this Court to formulate the substantial questions of law as culled out in the memorandum of appeal.

(3.) Mr. Arvind Mittal, learned counsel appearing on behalf of the respondent-plaintiffs submits that there is a categoric pleading in paragraph nos.6 to 8 qua continuous readiness and willingness which has not been emphatically denied, rather there is a vague and evasive denial. In view of the aforementioned fact, the appellant-defendants cannot take plea of provisions of Section 16(c) of the Specific Relief Act. All these facts have been noticed by both the Courts below. Moreover, agreement to sell stands admitted and endorsements having been proved through the testimony of attesting witnesses and thus urges this Court for affirming the findings rendered by the Lower Appellate Court.