JARNAIL SINGH Vs. SUKHBIR SINGH AND ANOTHER

JUDGEMENT

(1.) The instant civil suit has been preferred, for, rendition, of a decree of specific performance of agreement, and, in the alternative, for, rendition, of, a decree qua possession of the suit property, besides, for pronouncement, of, a decree for pecuniary damages quantified in, a, sum of Rs.30 lacs alongwith @18% p.a., also, for rendition of a decree qua permanent prohibitory injunction, as well as, a decree qua mandatory injunction.

(2.) The brief facts of the case, are, that a Brick kiln named, and, styled, as, "M/S Sada Shiv Bricks Company", situated at village Ratyor, Tehsil Nalagarh, District Solan, H.P. with lease hold land, measuring 65 Bighas, comprised in Kh/Kht No. 451/592, 93 bearing Khasra No. 2044, 1999, 1994, 1997, 1998, 1995, 1996 and 1992, as, entered in the Jamabandi for the year 200102 (for short "suit property") , is, owned by Garibu, and, under a lease agreement, the soil of the land, is, covenanted to be utilized, for, manufacturing bricks, and, longevity, of, the lease aforesaid executed interse the aforesaid company, and, owner thereof, was, up to 30.9.2006. The suit property, as averred in the plaint also includes licence (No. SLN/Bricks/114) , Chimney, labour huts, tools equipments, frames and 15 wooden trolleys, and, the suit property, is, also averred in the plaint, to be, including 15 lacs baked, and, 10 lacs unbaked bricks. The plaintiff avers, of his, purchasing through, an agreement of 29.9.2007, the aforesaid brick kiln, from, its sole proprietor Shri Ashok Kumar Jindal alongwith, all the appendages, except the prepared bricks, and, charcoal present on the spot, and, the same also included, all, the frames and huts etc. alongwith all the lease rights. The plaintiff also avers, of, the brick kiln being free from all encumbrances, and, the possession of the same, being taken on the date of aforesaid agreement by the plaintiff. The plaintiff further avers, of, his operating the brick kiln smoothly, and, his rearing handsome returns therefrom. It is further averred by the plaintiff, qua, defendants becoming avaricious, of, the sudden upsurge, in the commercial activity in the area, and, improvement in the business prospects, hence, started sending feelers to the plaintiff, to, sell the said brick kiln, and, owing, to, persistent persuasion of the defendants, the, plaintiff agreed, to on 28.2008, hence sell the suit property, to the defendants, alongwith the stock of bricks about 15 lacs, and, about 10 lacs unbaked bricks besides the labour huts, frames, chimney and other equipments alongwith lease rights, for, a total consideration of Rs. 33, 75, 000/ only. It is further averred by the plaintiff that the relevant agreement was reduced into writing, and, was executed interse the plaintiff, and, the defendants, and, come to be attested, on 28.2008. At the time of execution of the relevant agreement, the defendants are averred, to, tender to the plaintiff, a, sum of Rupees 9 lacs, and Rs. One lac, in cash, and, Rs. 1 lac by way of two cheques, of Rs. 50, 000/ each, payable at HDFC Bank, however, the same could not be encashed, as the same, were wrongly drawn and two fresh cheques, were, issued by the defendants, for, a sum of Rs. 50, 000/, each payable in the personal account of the plaintiff, AND, as such, a sum of Rs. 10 lacs, was, received as earnest money by the plaintiff, from, the defendants, and, the defendants further undertook, to pay the second installment of Rs. 10 lacs before 21.11.2008. It is further averred, that, the balance amount of Rs.13, 75, 000/, was, to be tendered by the defendants, before 21.1.2009, and, the plaintiff was to transfer the lease, of land, in favour of the defendants, after, clearing of the total consideration of Rs.33, 75, 000/ on 21.1.2009 by the defendants, to the plaintiff. It stands further averred of the defendants failing to pay the second installment, of, Rs. Ten lacs, to the plaintiff, before 21.11.2008. Since the defendants failed, to, pay the second installment, of, Rs. Ten lacs to the plaintiff, and, hence as per, the terms of the agreement, the, earnest money of Rs. Ten lacs paid, to, the plaintiff on the date of agreement i.e. 28.2008, stood forfeited to the plaintiff, and, the agreement stood cancelled and revoked. The plaintiff instead of proceeding, with, the forfeiture of the earnest money rather gave a chance, to the defendants, to perform their part, of the agreement, and, extended the date, by 21.1.2009. It is further averred, in the plaint, that physical possession, of, the Brick kiln aforesaid alongwith licence (No. SLN/Bricks/114) , Chimney, labour huts, tools equipments, frames and 15 wooden trolleys, AND, the suit property also stands averred to be including 15 lacs baked and 10 lacs unbaked bricks, all whereof were, handed over to the defendants by the plaintiff, visavis the date of drawing of agreement i.e 28.2008, alongwith the lease land qua which the lease is valid from 1.10.2005 to 30.9.2016, as, per the lease deed so executed, by its owner Shri Garibu, in, favour of the above brick kiln. The said brick kiln is averred, to be, free from every encumbrances. In terms of the agreement, the plaintiff also handed over the licence No. SLN/Bricks/114 of the Brick kiln, alongwith, the other relevant documents, on the date of agreement, to the defendants. Further more it is averred, that it being agreed mutually, between, the parties that, the price of raw as well a burnt bricks, being computed later, and, as such, the same was to be paid, by the defendants to the plaintiff, and, after counting, the same. It is further been averred, that, the defendants despite having been delivered possession of the suit property, on the date of the execution of the agreement to sell i.e 28.2008, and, theirs having dishonestly, sold, the stock of 15 lacs baked bricks, for, a price of Rs. 25 lacs, and, further having sold 10 lacs unbaked bricks, after baking them by utilizing the coal, from the stock and the fire wood, from the stock of the brick kiln, further for a sum of Rs. 18 lacs, and, having failed to honor the terms, of, the agreement, thereupon their being thus liable to pay, for, the 15 lacs baked and 10 lacs, unbaked bricks @ 1450/ and 300/ per thousand respectively, alongwith a sum of Rs. 3 lacs for the price of stock of the coal, fire wood. The defendants being further liable to pay for the labour huts, and, other equipments/tools i.e. 16 wooden trolleys valuing Rs. 8,000/ chimney valuing Rs. 1 lac, and, other tools valuing Rs.20, 000/ and Rs. 40 lacs, as, the defendants disposed, of, the stock of the bricks, coal, wood and other articles of the kiln. Thereafter, the defendants, have, abandoned the brick kiln. That the plaintiff, has, meticulously performed, his part of the obligation as per the terms, of the agreement including, obtaining the dissolution, of, the previous partnership and further offered his sincere assistance to the defendants for carrying out the terms of the agreement, but, the defendants, have intentionally avoided, to, with a malafide intention, honour the agreement, and, its terms. That the plaintiff has been throughout ready and willing his part of the agreement, and, is still ready to perform his part. That under the foregoing circumstances, it is amply clear that the defendants, have utterly failed to perform their part of the agreement, and, the defendants, are, liable for the penalty of the forfeiture, of, the earnest money of Rs. 10.00 lacs paid to the plaintiff, at the time, of the execution of the agreement. It is further averred, in the plaint, that, not only this, the plaintiff, even, after all this happened, showed generosity, and, laxity to the defendants, and served a legal notice upon the defendants dated 13.1.20009, calling upon them to pay the entire balance amount of Rs. 23, 75, 000/ on or before the last date i.e 21.1.2009, stipulated in the agreement, alongwith, the interest @ 18% per annum on the amount of second installment of Rs. 10 lacs, amount whereof, the defendants was supposed to pay to the plaintiff, on or before 21.11.2008. However, the defendants neither paid the balance amount nor they turned up on 21.1.2009, in, the office of Sub Registrar Nalagarh, for, the execution of sale deed, whereas, the plaintiff, remained, in the Office of the learned Sub Registrar Nalagarh, on that day, through out its course, and, kept on waiting for the defendants. Thereafter the plaintiff, at last, when the defendants did not turn up, got his affidavit sworn, and attested, before, the learned sub Registrar Nalagah. The cause of action accrued in favour of the plaintiff, on 21.1.2009, and, as such, the suit is within limitation. The plaintiff is entitled, to, a decree for specific performance, of, the agreement dated 28.2008, by theirs making payment of Rs.33.75 lacs to the plaintiff, as, amount of Rs.10 lacs, paid as advance, to the plaintiff, standing forfeited, on account of the default, act and conduct of the defendants, the plaintiff , is, also entitled to receive, an amount of Rs. 33.75 lacs, since the plaintiff has been ready and willing to perform his part of the agreement, dated, 28.2008 but the defendants have abandoned, the kiln after removing 15 lacs bricks, from suit property, and, thus have committed a clear breach of the terms of the agreement, and, in case the defendants, are, not interested, in, the performance of their part of the agreement or want to rescind the same, in that event, the, plaintiff is further entitled to claim damages for the loss of baked and unbaked bricks, coal fuel, wood stock, chimney labour huts, tools, and, equipments to the extent of Rs.30 lacs by way of alternative relief. The plaintiff also avers in his plaint that no other suit on the same or similar ground is pending or decided by any Courts of law. It is also averred in the plaint that the present Court has jurisdiction to try the present suit. It is further averred that the value for the purpose of Court fee and the jurisdiction is Rs. 33.75 lacs, hence the present suit.

(3.) The suit was contested by the defendants, and, they have filed written statement, wherein, they have taken preliminary objections qua maintainability, estoppel, nonjoinder of necessary parties, and, the suit is not properly valued, for the purposes of Court fee, and, jurisdiction. On merits, it is submitted, that, the plaintiff never purchased the suit property, and, document of 29.9.2007, is, a General Power of Attorney, executed by Mr. Ashok Jindal, in, favour of the plaintiff, which is not legally valid, as, the same is not registered, under, the Provisions of the Indian Registration Act. It is also contended in the writtenstatement, that, the defendants were persuaded, and, induced by the plaintiff to enter into an agreement to sell with respect to brick kiln with him. It is also contended that the quantity of bricks, as, mentioned by the plaintiff, were, not available on the spot. It is further contended that the plaintiff did not disclose to them the true facts about his rights, title and interest, in, the brick kiln. The defendants in their writtenstatement, admitted, that an agreement, for an amount of Rs.375 lacs was reduced, into writing between the parties on 22.8.2008, with, an understanding, that, the cost of material amounting, to, Rs.12 lacs, will be, the part of this sale consideration, and, the same will be paid after the plaintiff will get the lease transferred, in, the name of the defendants, and, the agreement was also entered into with the bonafide belief, that the plaintiff, is, competent, to, enter into a contract, his having title over the suit property. But the plaintiff failed to get the lease of land transferred in the name of the defendants , and, also failed to induct, the, defendants as partners in the firm. It is also admitted, that, a sum of Rs.10 lacs, was, paid by the defendants to the plaintiff. However, a sum of Rs. 10 lacs was wrongly taken, by the plaintiff, despite, the fact of his being aware qua his not holding title over the suit property, and, the plaintiff intentionally withheld the true facts. It is further not denied that a sum of Rs. 10 lacs was to be paid on or before 21.11.2008, but the same was not paid to the plaintiff , as he has not performed his part of, the apt, obligation fastened, in, the agreement, hence, the defendants were not required to pay the second, and, third installments as alleged. Since the contract was vitiated on account of fraud, the plaintiff, is, not entitled to claim forfeiture of Rs. 10 lacs received by him, and, on the contrary, the plaintiff, is liable to repay, a sum of Rs. 20 lacs being the double amount of the part of the sale consideration, received by him on 22.8.2008, as per the terms of the agreement. It is also admitted by the defendants, that, possession of the suit property, was, handed over to them on 22.8.2008. It is further averred, that, defendants were not handed over 15 lacs baked and 10 lacs unbaked bricks. It is further averred that the licence, which was valid up to 31.2009, was handed, over to the defendants alongwith chimney and damaged labour huts. However, no tools and equipments were handed over to them. It is further averred that lease land has been taken over the land owners to whom it belonged, because, the plaintiff has failed to get the licence of the brick kiln, renewed, and the land owners have after leveling the same started cultivating the same. It is denied, that the defendants sold the stock of 15 lacs baked bricks for price of Rs.25 lacs, and, further sold 10 lacs unbaked bricks, after, utilizing coal and fire wood, from, the stock for further amount of Rs.18 lacs. It is also denied that the defendants have failed, to, honour the terms of the agreement and are also liable to pay for the aforesaid baked, and, unbaked bricks at the rate of Rs. 1450/ and Rs. 300/ per thousand, respectively. The defendant on the other hand alleged, that, there were only one lac raw bricks bricks whereof are badly damaged, and, besides them, there were about ten lacs baked bricks, on, the spot. It is also averred by the defendants, that they were always ready and willing to perform, their part of the agreement, but on account of the defect in the title, of the plaintiff, the agreement became unenforceable. It has also been admitted by the defendants, that, the plaintiff had sent a legal notice to them. In reply to the same the plaintiff, was, asked to perform his part of the agreement, before, receiving the remaining sale consideration. The suit is alleged to be barred by limitation. The remaining averments made in the plaint are denied by the defendants and thus they pray for dismissal of the suit.