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2015 Supreme(P&H) 1751
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Surinder Gupta
Regular Second Appeal No.2171 of 1987 (O&M)
Harjit Kaur (D) through LRs
v.
Jangir Singh (D) through LRs & Ors.
{Decided on 17/12/2015}
For the Appellants in both the appeals:Mr. Anupam Gupta, Senior Advocate with Mr. Gaurav Pathania, Advocate.
For the Respondent No.1 in both the appeals:Mr. Akshay Bhan, Senior Advocate with Mr. Santosh Sharma, Advocate.
Headnote:Agreement to Sell--Extention of Time--Writing executed between parties was uncertain, vague and incapable of giving any interpretation--Therefore, cannot be held to be binding.
(A) Contract Act, 1872, S.29--Agreement to Sell--Extention of Time--Void Contract--The language of the writing shows as if the matter was left to the discretion of seller to execute the sale deed in terms of the agreement--This writing shows that as and when seller will have the court orders, vacating the injunction, the plaintiff(s) will get the sale deed executed--The above term is clearly and uncertain, vague and incapable of giving any interpretation--Therefore, cannot be held to be binding--Suit for specific performance held to be barred by limitation--Specific Relief Act, 1963, S.16.
(B) Specific Relief Act, 1963, S.16--Agreement to Sell--Refund of earnest money--Agreement was 41 years old and suit for specific performance held to be barred by limitation--Market prices have escalation many folds since then--Applying principle of ‘Undue Enrichment’ earnest money directed to be refunded with 12% interest p.a. from date of agreement till date of payment.
(C) Specific Relief Act, 1963, S.16--Agreement to Sell--Specific Performance--Limitation--Agreement was executed in 1974--After dismissal of injunction suit in 1975 there was no order restraining seller from alienating her land ever during pendency of appeal--Suit filed in 1982 held to be barred by limitation.
(D) Specific Relief Act, 1963, S.16--Limitation--Specific Performance--When date is fixed it means that there is a definite date fixed for doing a particular act--Even in the second part the stress is on “when the plaintiff has notice that performance is refused”--Here again, there is a definite point of time, when the plaintiff notices the refusal--In that sense both the parts refer to definite dates--So, there is no question of finding out an intention from other circumstances--Limitation Act, 1963, Article 54. (Para 27)
Mr. Surinder Gupta, J.:- RSA-2171-1987
Jangir Singh (since deceased) now represented by his legal heirs filed suit seeking the relief of specific performance of agreement dated 23.01.1974 executed by appellant Harjit Kaur with regard to the land measuring 146 kanals 14 marlas as fully described in the head note of the plaint. As per the plaintiff(s), the land was agreed to be sold by Harjit Kaur at the rate of Rs. 6,450/- per killa and she received Rs.15,000/- as earnest money and also executed a receipt dated 23.01.1974 to this effect. The date for execution of the sale deed was fixed as 05.06.1974.
2. On 01.05.1974 Shivdev Singh son of Jangir Singh son of Natha Singh filed a civil suit against Harjit Kaur and obtained an interim order from the Court against her to prevent execution of the sale deed by Harjit Kaur. On 29.05.1974, Harjit Kaur while acknowledging the agreement dated 23.01.1974 got scribed on the back of the agreement that she will execute the sale deed in favour of plaintiff within 30 days of the vacation of the injunction order. The suit filed by Shivdev Singh was dismissed in default on 15.12.1975 and he filed another civil suit on 05.01.1976 against Harjit Kaur and plaintiff Jangir Singh and obtained an injunction order to restrain the execution of the sale deed. That suit was finally dismissed on 22.04.1980. Shivdev Singh filed appeal against that judgment and decree on 28.04.1980 and obtained injunction order till the decision of the appeal which was finally decided on 03.05.1982.
3. Out of the suit land, 32 kanals 0 marlas was mortgaged by Harjit Kaur with defendants No.5 to 7 i.e. Saudagar Singh, Gurnam Singh and Bant Singh sons of Chad Singh, residents of village Sadowal. The mortgage has since been got redeemed. However, the same was not incorporated in the revenue record and defendant No.4 was recorded in possession of some of the portion of the land by mistake. Due to this reason, defendants No.4 to 7 were impleaded as party in this case.
4. 41 kanals 17 marlas of land bearing khasra Nos. 26//23(8-0), 24 (8-0), 35//13(8-0), 4(8-0), 8(8-0) and 13min (1-17) was recorded as ownership of Punjab Government. This entry was made as the above land of Harjit Kaur was declared surplus but later on it was released in favour of Harjit Kaur, who continued to be its owner.
5. Harjit Kaur had given 84 kanals 1 marla of land bearing khasra Nos. 35// 1(8-0), 2(8-0), 3(8-0), 4(8-0), 7(8-0), 8(8-0), 9(8-0), 10(8-0), 13(8-0), 6 min(6-2) and 18 min(5-19) for cultivation to Bhan Singh towards the interest of Rs.20,000/- taken by her as loan. Bhan Singh had obtained a decree of Rs.23,433/- against Harjit Kaur, as such, this amount was to be paid to Bhan Singh and Harjit Kaur had agreed to leave this amount with the plaintiff under the agreement.
6. The land measuring 62 kanals 13 marlas bearing khasra Nos. 26//23(8-0), 24(8-0), 35//23(8-0), 42//1(7-11), 2(7-11), 3(7-11), 8(8-0), 9(8-0) and land measuring 10 kanals 12 marlas bearing Khasra Nos.43//14/2 (2-12), 15(8-0) were given by Harjit Kaur to Hari Singh vide agreement dated 29.05.1974 for cultivation towards the interest of the loan of Rs.18,000/- taken by her vide pronote and receipt dated 29.05.1974 and this amount was also agreed to be left with the plaintiff under the agreement. In this manner, the plaintiff was entitled to retain a sum of Rs.23,433/- and Rs.18,000/- i.e. Rs.41,433/- with him out of the sale consideration.
7. Plaintiff had always been ready and willing to perform his part of contract and Harjit Kaur was also asked to perform her part under the agreement dated 23.01.1974 but she refused to execute the sale deed as per agreement dated 23.01.1974 and the endorsement dated 29.05.1974. Hence, this suit.
8. Defendant Harjit Kaur contested the claim of plaintiff inter-alia pleading that suit had not been filed within limitation and the same wa
