The court upheld the specific performance of the agreement to sell based on the plaintiff's readiness and willingness to perform, the resolution of the payment dispute, and the application of the Limitation Act.

ANIL KSHETARPAL, J.

CM No.9735-C of 2017

This is an application under order 22 rule 3 CPC for bringing on record legal heirs of appellant No.1 –Balraj Singh, who died on 27.01.2017. The application is supported by an affidavit.

The application is allowed subject to all just exceptions. The legal heirs mentioned in para 2 of the application, who are natural heirs, are permitted to be brought on record for the purpose of prosecuting the present appeal only.

RSA No.3880 of 2017

Defendants are in Regular Second Appeal against the concurrent finding of fact arrived at by the Courts below.

1. Plaintiff had filed a suit for specific performance of the agreement to sell dated 23.06.2005 for a total consideration of Rs.1,28,25,000/-. The execution of the agreement to sell is admitted between the parties. It is an admitted fact that Rs.10,00,000/- was paid as earnest money.

2. As per the agreement to sell, the target date for execution and registration of the sale deed was fixed on or before 07.10.2005. Clause 6 of the agreement to sell reads as under: –

“That if the No Objection Certificate is not granted to the seller/s by the Estate Officer, Chandigarh Administration, Chandigarh due to any reason before the date fixed for final payment/execution of Sale Deed then the seller/s will has/have to extend the date as mutually agreed by both the parties.”

3. Plaintiff has asserted that out of the total sale consideration of Rs.1,28, 25,000/-, plaintiff on different dates had paid a sum of Rs.1 Crore.

4. Defendants in the written statement admitted execution of the agreement to sell. Defendants also admitted that an amount of Rs.65,00,000/- has been paid. However, payment of Rs.35,00,000/- was disputed.

5. Defendants pleaded that on the target date, plaintiff did not turn up and, therefore, the amount stands forfeited.

6. The learned trial Court after examining the evidence available on the file, recorded a finding that in fact Rs.35,00,000/- was also received by the defendants. The learned trial Court recorded that plaintiff was always ready and willing to perform his part of the contract. The suit filed by the plaintiff was decreed on payment of balance sale consideration.

7. First appeal preferred by the defendants has also been ordered to be dismissed after re-appreciating the evidence available on the file.

8. Learned counsel for the appellants has submitted that the suit filed by the plaintiff suffered from delay and latches and, therefore, the Courts below were not correct in granting discretionary relief of specific performance to the plaintiff. He has further submitted that there is no evidence of plaintiff being ready and willing to perform his part of the contract. He further submitted that the Courts have overlooked the forgery committed by the plaintiff on the endorsements dated 8.11.2005 when Rs.35,00,000/- is alleged to have been paid. He has further submitted that the Courts have not recorded any finding that Rs.35,00,000/- was paid by the plaintiff to the defendants.

9. On the other hand, learned counsel for the respondent has submitted that the findings arrived at by the Courts below are correct. The plaintiff was always ready and willing to perform his part of the contract. He has further submitted that almost 80% of the payment has been made. He has further submitted that No Objection Certificate from the Chandigarh Administration was duly applied by the defendants-appellants and had been granted.

10. I have heard learned counsel for the parties at length and with their able assistance gone through the judgments passed by the Courts below as well as the record produced by the counsel for the parties.

11. Receipt of Rs.65,00,000/- is an admitted fact. The only dispute is with respect to the endorsement dated 08.11.2005. There are two endorsements of 08.11.2005. The first endorsement is Ex. P1/4 wherein both the defendants had put their signatures as the property belonged to both the brothers. Thereafter, there is a further endors