Yashoda Thakur And ANR v. Prabha Rani

-1IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Order: 16.08.2017 Yashoda Thakur and another ..Appellants

Versus

Prabha Rani ..Respondent CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL

Present:

Mr. R.S.Randhawa, Advocate, for the appellants.

Mr. Naveen S. Bhardwaj, Advocate, for the respondent.

ANIL KSHETARPAL, J.

Defendants-appellants are in regular second appeal against the concurrent findings of fact arrived at by the Courts below. Plaintiff-respondent claimed specific performance of agreement to sell dated 27.10.2005 with consequential relief of permanent injunction. A sum of Rs.2,50,000/- was paid as earnest money. The target date for execution of the sale deed was 31.12.2005. Plaintiff further asserted that the defendants applied for permission to transfer the plot in favour of the plaintiff. Plaintiff deposited Rs.5000/- as transfer fee. The Haryana Urban Development Authority granted permission to the defendants to transfer the plot in favour of plaintiff on 21.12.2005. Plaintiff further asserted that the additional earnest money of Rs.2,50,000/- was paid and on that day defendant no.1 executed an affidavit stating that the possession of the house shall be delivered on 15.01.2006.

In defence, the execution of the agreement to sell was admitted.

-2A receipt of Rs.5 lacs i.e., Rs.2,50,000/- on 27.10.2005 and Rs.2,50,000/- on 29.12.2005 was also admitted.

However, defendants pleaded that they were ready and willing to get the sale deed executed on 30.12.2005. Defendants further asserted that on 30.12.2005, defendant no.1 was present in the office of Sub Registrar and she got her presence marked but plaintiff did not turn up in the office of Sub Registrar to get the sale deed executed and pay the balance amount.

After appreciating the evidence available on the file, learned trial Court decreed the suit filed by the plaintiff for possession by way of specific performance of agreement to sell dated 27.10.2005. First appeal preferred against the aforesaid judgment and decree was also dismissed by the learned first appellate Court after reappreciating the evidence available on the file. I have heard learned counsel for the parties at length and with their able assistance gone through the judgment passed by the Courts below as well as records.

Learned counsel for the appellants has submitted that the defendant no.1 remained present in the office of Sub Registrar on the date of execution of the sale deed i.e. On 30.12.2005 and got her presence marked. He submitted that the agreement to sell came to an end. He has further submitted that the defendant no.1 had pleaded these facts in the written statement, however, no replication was filed. He submitted that time was essence of the contract as the defendants wanted to purchase another property and the balance payment was to be made on 02.01.2006 with respect to another property. He has further submitted that there is no

-3evidence to prove extension of the date regarding execution of the sale deed. He further submits that it is a case of hardship. There is no dispute that as per the agreement to sell, the original date for execution and registration of the sale deed was 30.12.2005. It is also not in dispute that on 29.12.2005, additional sum of Rs.2,50,000/- was paid. It is further not in dispute that the defendant no.1 executed an affidavit, Ex.P7 on the file, wherein defendant no.1 stated that she will hand over the possession of the property on 15.01.2006. Once the proposed vendors had expressed their intention not to hand over possession on the date fixed for execution of the sale deed, the plaintiff was justified in assuming that date of sale has been extended by 15 days.

In the normal circumstances, once defendant asks for more time to hand over possession of the property in question, the date of execution and registration of sale deed would deemed to have been postponed. Therefore, mere presence of defendant no.1 on 30.12.2005 in the office of registering authority would not result in termination of the agreement to sell. Learned counsel for the appellants has further argued that the defendant no.1 pleaded that the time was essence of the contract and the defendants wanted to purchase another house and since no replication had been filed, therefore, there is no rebuttal to the assertion made by the defendants.

I do not find any force in the submission made by the counsel for the appellants. Once the defendant was not willing to hand over the possession of the property on the date fixed for registration of the sale deed, no fault can be found with the plaintiff. Normally, in an agreement to sell, time is not essence of the contract. In this case, defendant no.1 herself

-4delayed the delivery of possession by 15 days. Therefore, defendant now cannot plead that the agreement has come to an end. Plaint and written statement are part of the pleadings. Filing of replication is optional and that also with the permission of the Court. The replication cannot be taken as part of the pleadings in that sense. Still further it remains beyond doubt that the plaintiff was ready and willing to perform his part of the contract. Plaintiff got her attendance marked on 02.01.2006. She wrote a letter to the defendants on 09.01.2006, calling upon her to come and execute the sale deed. Plaintiff got prepared a demand draft of Rs.12 lacs on 10.01.2006.

The plaintiff even appeared before the Sub Registrar on 16.01.2006 and got her presence marked. The suit in the present case was filed on 25.03.2006 i.e., within a period of less than three months from the date the sale deed was to be executed upon. In these circumstances, it is not possible to hold that the plaintiff was not ready and willing. Learned counsel for the appellants has further submitted that there is no evidence to prove extension of the date of registration of the sale deed.

Although, I have already dealt with the aforesaid issue. However, once on 29.12.2005, i.e. before the date of registration of the sale deed, defendant no.1 sworn an affidavit, that she would hand over the possession of the house only on 15.01.2006, the extension of a date for execution of the sale deed is natural consequences. Learned counsel for the appellants has further submitted that the defendants would suffer undue hardship as the defendant no.1 was to make payment and because of non-payment on the part of the plaintiff, she

-5could not purchase the other property.

I have considered the submission made by the counsel for the appellants.

There is no plea of hardship in the written statement. There is no issue. Still further, the date of the sale deed was extended as the defendant no.1 executed the affidavit to the effect that she will not be able to hand over the possession of the house on the date of registration of the sale deed on 31.12.2005. The date was extended merely for 15 days. It is not in dispute that the plaintiff had paid a sum of Rs.5 lacs i.e., Rs.2,50,000/- on 27.10.2005 and Rs.2,50,000/- on 29.12.2005. Thereafter, the plaintiff even got prepared a demand draft in the name of the defendant no.1 for a sum of Rs.12 lacs on 10.01.2006.

In view of the above discussion, I do not find any reason to interfere with the concurrent findings of fact arrived at by the Courts below. Therefore, the regular second appeal is ordered to be dismissed. August 16, 2017 (ANIL KSHETARPAL) nt JUDGE Whether speaking/reasoned : Yes/No Whether reportable : Yes/No