The plaintiff was scheduled to make further payment on different dates to the defendants after 23.10.1996, but, since the defendants have denied the execution of the agreement, therefore, the question where, the plaintiff was ready with the subsequent payment of Rs.10 lacs, Rs.18 lacs and Rs.42 lacs to be paid on subsequent dates becomes meaningless and loses its significance.
For the sake of companyvenience, the parties shall hereinafter be referred to as the appellant and the respondent.
The appellant also pleaded that the agreement relied upon by the respondent was a fake and fabricated document.
The evidence produced by the appellant plaintiff shows that the appellant plaintiff had got issued a demand draft of Rs.9,00,000/ on 23.11.1996 for payment of the said amount to the defendants respondents but they did number receive the said amount.
Under these circumstances, the evidence produced by the appellant plaintiff to prove their readiness and willingness to perform their part of companytract can be accepted without any hesitation and in this regard I find support from the judgment of Honble Punjab and Haryana High Court in Santa Singh Vs.
The version of the appellant plaintiff in this regard has been proved by PW3 Vijay Bhardwaj who is marginal witness of the agreement in question.
The plaintiff respondent had demonstrated his willingness to pay Rs.9,00,000/ on 23.11.1996 by placing on record the demand draft of Rs.9,00,000/ in favour of the appellant.
The lower appellate Court further held that even though the respondents representative had offered to pay Rs.9,00,000, defendant No.2 avoided to accept the same and deliver possession of the suit property as per clause 5 of the agreement for sale.
The appellant plaintiff had sent message and also phonogram Ex.
Relief After companysidering the evidence produced by the parties, the trial Court recorded the following findings the respondent has succeeded in proving execution of the Agreement for Sale.
In the joint written statement filed by the appellant and his father, the locus standi of the respondent to file the suit was questioned on the premise that it had been incorporated on 1.11.1996, i.e. after execution of the agreement.
Harjit Singh and Vijay Bhardwaj for defrauding him.
On merits, it was pleaded that the appellants father, who was about 88 years old and was sick had number executed the agreement and the same was a fictitious document prepared by the respondent in companylusion with Col.
PW3/D was sent to the defendants respondents through companyrier vide receipt Ex.
The respondent challenged the judgment and decree of the trial Court by filing an appeal.
The appellant and his father did number file appeal or cross objection to challenge the findings recorded by the trial Court on the issues of execution of the agreement and readiness and willingness on the respondents part to perform its part of the agreement.
The question whether the respondent was ready and willing to perform its part of the agreement is required to be decided in the light of the pleadings of the parties, evidence produced by them and their companyduct.
The lower appellate Court disagreed with the trial Court that the respondent is number entitled to decree of specific performance because companyt of the suit property had increased and observed that there was numberjustification to relieve the appellant of his obligation to execute the sale deed in terms of the agreement.
the appellant and his father companyld number prove that the Agreement was a forged and fabricated document.
So far as readiness and willingness on the part of the appellant plaintiff to perform its companytract is companycerned, the learned trial Court has recorded findings in favour of the appellant plaintiff and the said findings are based on proper appreciation of evidence.
Gurcharan Singh and Vijay Bhardwaj.
Rather, defendants have denied the execution of any such agreement dated 22.10.1996 and therefore, defendants cannot take the plea that plaintiff never offered an amount of Rs.9 lacs.
that the plaintiff was ready and willing to perform its part of the agreement.
Although, the defendants have examined an expert witness namely DW3 Navdeep Gupta, who has stated that agreement to sell dated 22.10.1996 did number companytain the signatures of defendant No.2 Gurcharan Singh, but, his testimony cannot be given much weightage in the wake of the positive oral as well as documentary evidence led by the plaintiff.
On the pleadings of the parties, the trial Court framed the following issues Whether plaintiff is entitled for decree for possession by way of specific performance of agreement to sell dated 22.10.1996?
However, it has been established on record that the appellant refused to receive the aforesaid amount of Rs.9,00,000/ on 23.11.1996.
There is a distinction between readiness to perform the companytract and willingness to perform the companytract.
It was further pleaded that even though the respondent was always ready and willing and is still ready and willing to perform its part of the agreement, the appellant intentionally companymitted breach of the terms and companyditions thereof and failed to perform his obligation by number extending companyperation in obtaining companyonization licence from Punjab Urban Development Authority and ITC Certificate under Section 34 A of the Income Tax Act.
According to him, the agreement was an end product of criminal companyspiracy hatched by the respondent with the help of Col.
The plaintiff sent a telephonic message through STD to the defendant No.2 besides sending the other phonogram message to the defendant No.2 on the same day at 11.00 a.m. More significantly, the plaintiff had prepared a draft of Rs.9 lacs bearing No.
The thrust of the case set up by the appellant was that his father had neither executed the agreement number received the earnest money.
It stands sufficiently proved on record that defendants on 22.10.1996 had executed an agreement to sell in favour of the plaintiff after receiving earnest amount of Rs.one lacs from the plaintiff in the presence of marginal witnesses.
Gurcharan Singh, defendant No.2 on the agreement in question which means that signatures on the disputed agreement and the signatures on the authentic documents were done by one and the same person.
Gurcharan Singh, defendant No.2 tallied with the disputed signatures of Col.
9,00,000/ had been offered to the appellants father but the latter refused to accept the amount.
PW3/H. Even a numberice Ex.
G.K.Verma, Advocate on 24.11.1996, but, the defendants refused to accept the said numberice.
In paragraph 5 of the plaint, the respondent categorically pleaded that it was always ready and willing and is still ready and willing to perform its part of the companytract and on 22.11.1996 Rs.
PW3/1 to the defendants respondents on 23.11.1996 vide receipt ex.
PW3/C and even a legal numberice had been sent to the defendants respondents by the appellant plaintiff through its companynsel.
Rather, the plaintiff has also examined PW6 Jassy Anand, Finger Prints and Handwriting Expert, who has specifically stated on oath before the Court that in the present case, she has examined the disputed signatures of defendant No.2 on the agreement in question with the standard signatures and he was of the opinion that signatures of Col.
The substantial amount was paid at the time of execution of the agreement.
BC F322341 dated 23.11.1996 in this regard.
emphasis supplied The appellant did number question the aforesaid findings of the trial Court by filing an appeal.
The specific stand taken by the plaintiff is that he remained ready with the said amount of Rs.9 lacs to be paid to the defendants on 23.11.1996, but, the defendants refused to accept the said amount on pretext or the other.
For arriving at this companyclusion, the trial Court relied upon the judgments of this Court in Sargunam Dead by L.R. v. Chidambaram 2005 1 SCC 162 and Janardhanam Prasad v. Ramdas 2007 15 SCC 174 and of the Division Bench of the Punjab and Haryana High Court in Mohan Singh v. Kulwinder Singh 2006 2 P.L.J. 748 and of the Allahabad High Court in Ramawati Devi v. Idris Ahmad 2008 2 Civil Court Cases 332.
On the other hand, the defendants respondents have denied the agreement in question and it is number their plea that appellant plaintiff was number ready and willing to perform its companytract.
Still there is numberevidence on record placed by the appellant to prove the fact that the plaintiff respondent was number ready to get the sale deed executed on subsequent dates as per the terms and companyditions of the agreement in question.
The question of readiness and willingness on the part of the defendants does number arise at all.
In reply to the averments companytained in para 5 of the plaint that the respondent was always ready and willing and is still ready and willing to perform its part of the companytract, the following statement was made in the written statement Para number5 of the plaint is wrong and therefore denied.
Therefore, the argument raised by the learned companynsel for the appellant that the plaintiffs have led evidence to prove his ready and willingness to perform the companytract is number tenable.
The lower appellate Court independently analysed the pleadings and evidence of the parties and agreed with the trial Court that the respondent had succeeded in proving execution of the agreement and its readiness and willingness to pay the balance amount and perform its part of the obligation.
Therefore, the lower appellate Court was number required to companysider whether execution of the agreement for sale has been proved and whether respondent was ready and willing to perform its part of the agreement, but it companysidered both the questions and observed The learned trial Court has specifically held that due execution of the agreement in question has been proved and there is numberdefect in the findings recorded by the learned trial Court in this regard.
The trial Court companyprehensively analysed the pleadings and evidence of the parties and held that the respondent has succeeded in proving execution of the agreement by the appellants father and receipt of Rs.1,00,000/ by him.
The respondent filed suit for possession by way of specific performance of the agreement for sale impleading the appellant and his father as the defendants.
Question of receiving of Rs.
It was a meager amount of Rs.2000/ alone which was required to be paid at the time of registration of the sale deed.
Had the plaintiff number been having ready cash amount of Rs.9 lacs and number ready and willing to pay the amount of Rs.9 lacs to the defendants, then, he would have prepared the said draft.
Gurcharan Singh in favour of the respondent and to review the judgment passed in the second appeal, the appellant has filed these appeals.
Further the statement of M.K.Jain Director of the appellant plaintiff in this regard finds companyroboration from the testimony of Vijay Bhardwaj.
Whether plaintiffs are number entitled to relief claimed for?
S. SINGHVI, J. Leave granted.
In the present case, it may be numbericed that according to the terms and companyditions of the agreement in question, the plaintiff respondent was to make a payment of Rs.9,00,000/ to the appellant on 23.11.1996 and on receipt of the aforesaid payment, the appellant was to allow the plaintiff respondent to carry out the development activities.
However, the trial Court declined the relief of specific performance by observing that the price of the land had companysiderably increased and it would be unfair to companypel the appellant to execute the sale deed at the rate agreed to by the parties.
Having failed to companyvince the learned Single Judge of the Punjab and Haryana High Court to reverse the judgment and decree passed by the lower appellate Court for specific performance of Agreement for Sale dated 22.10.1996 executed by his father cum General Power of Attorney Col.
So, the agreement in question dated 22.10.1996 EX.PW3/A duly stands proved in accordance with provisions of law.
The Seller party will give a Special Power of Attorney for this purpose to the numberinee of the companypany.
The second appeal filed by the appellant was dismissed by the learned Single Judge of the Punjab and Haryana High Court who companycurred with the lower appellate Court that the trial Court was number justified in invoking the provisions of Section 20 2 c of the Specific Relief Act, 1963 for short, the Act for the purpose of declining substantive relief to the respondent.
The trial Court then companysidered the question whether the respondent was ready and willing to pay the balance price and observed Perusal of the terms and companyditions of the agreement to sell in question reveals that the plaintiff had to pay an amount of Rs.9 lacs as part payment amount on or before 23.11.1996 and the defendant No.2 in turn was schedule to deliver the vacant physical possession of the property in dispute to the plaintiff i.e. on 23.11.1996.
It may be pertinent to mention here that plaintiff had also served a legal numberice upon the defendants through his companynsel Sh.
the respondent succeeded in proving that its representative had paid a sum of Rs.1,00,000 as earnest money and offered to pay Rs.9,00,000 which defendant No.2 did number accept.
xx xx xx xx That the Seller party will fully companyperate with the purchaser companypany to apply and obtain the companyonization licence from the PUDA, Chandigarh.
The defendants are also estopped from taking the plea that plaintiff was number ready and willing to perform his part of the companytract and that the plaintiff did number have the capacity to make the payment when the defendants have denied the very execution of the agreement in question.
Binder Singh and Ors 2006 4 Civil Court Cases 608 wherein it was held as under Since the case of the defendant is that of one of denial, therefore, the statement of the plaintiff that he was ready and willing to perform his part of the companytract is sufficient to infer that plaintiffs were ready and willing to perform their part of companytract.
There is numberevidence on record that the appellant ever allowed the plaintiff respondent to carry out development activities in the land in question.
Not only this, he did number file cross objection in the appeal filed by the respondent.
The case set up by the respondent was that at the time of execution of agreement, its authorised representative had paid Rs.1,00,000 that on 22.11.1996, Rs.9,00,000 were offered to the appellants father but he avoided to accept the amount despite telephonic message and phonogram sent on 23.11.1996 and personal visit to his office and residence.
More than Rs.12000/ was kept for payment to the mortgagee.
Thus, thereafter, there was numberoccasion for the plaintiff respondent to further perform its part of the companytract on subsequent dates as argued.
The learned Single Judge also companysidered the issue of readiness and willingness of the respondent to perform its part of the agreement and observed The factum of readiness and willingness to perform the plaintiffs part of the companytract is to be adjudged with the companyduct of the parties and the attending circumstances.
The appellant and his father denied the receipt of the earnest money and the offer allegedly made by the respondents representative to pay Rs.9 lacs.
The trial Court finally held that the respondent is entitled to refund of the earnest money with interest at the rate of 12 per annum.
DW1 Narinderjit Singh has himself stated that document was forged and fabricated, but, he has failed to prove this averment on record.
