IMPORTANT POINT
Agreement to Sell – Question of readiness of willingness cannot be framed as preliminary issue.

RAJ MOHAN SINGH, J.

1. Petitioner has assailed the order dated 22.01.2016 passed by the Addl. Civil Judge (Sr. Divn.) Moga vide which the application filed by the petitioner/defendant to treat the issue of readiness and willingness as preliminary issue in a suit for specific performance was dismissed.

2. Brief facts are that the plaintiffs/respondents filed a suit for specific performance on the basis of agreement to sell dated 09.05.2011 entered between the petitioner and the respondents in respect of 114 Kanals 7 Marlas of land. Respondents also prayed for execution of sale deed in their favour in equal shares of the land for a consideration of Rs. 4,15,94,812.50 by adjusting Rs. 1,00,00,000/- received as earnest money by the petitioner. The respondents also prayed for a decree for permanent injunction restraining the defendant from alienating the suit property by creating any encumbrance over it.

3. It was alleged by the petitioner that after filing the replication on 16.02.2015, the suit was adjourned on number of times on the statements of the respondents that they have compromised the matter with the petitioner and as per compromise they were ready and willing to get the sale deed executed as per agreement dated 09.05.2011 after paying the balance sale consideration to the petitioner on 15.06.2015. The counsel for the petitioner also suffered a statement that the petitioner will execute the sale deed in favour of the respondents after receiving the balance sale consideration on 15.06.2015.

4. Petitioner further asserted that she was resident of Mumbai and as per undertaking given by the counsel on 24.04.2015, she travelled from Mumbai to Moga to get the sale deed registered in favour of the respondents on 15.06.2015 and remained present in the office of Sub-Registrar, Dharamkot on 15.06.2015 from 9.00 a.m. to 5.00 p.m., but the respondents did not turn up. Thereafter petitioner filed an application along with affidavit dated 15.06.2015 to show her presence before the Sub-Registrar and got her presence attested. The respondents failed to honour the commitment and prayed for time for effecting the compromise on 20.07.2015 before the trial Court.

5. The arguments on the application under Order 39 Rules 1 and 2 CPC were heard on 14.09.2015 and the case was adjourned to 23.09.2015 for orders in stay application. The said application was allowed by the trial Court vide order dated 23.09.2015. The petitioner moved an application for treating the issue of readiness and willingness to be a preliminary issue in the suit.

6. The application filed for framing of preliminary issue of readiness and willingness was contested by the respondents. Respondents took up the stand that previously the plaintiffs were ready and willing to perform their part of obligation, but the defendant/petitioner was not willing. The said fact was proved from the fact that in agreement to sell, the defendant had not given the correct address and she was proceeded against ex parte and appeared in the suit on 03.07.2014 i.e. at the stage of closing of ex parte evidence of the plaintiffs. The defendant avoided the proceedings at one pretext or the other. The plaintiffs/respondents were ready and willing to deposit the remaining consideration within reasonable time even with the appointment of commission for doing the needful.

7. On 28.10.2015, the trial Court recorded that the Advocate on behalf of the defendant filed power of attorney. Reply to the application for treating the issue of readiness and willingness as preliminary issue was taken on record and both the parties got recorded their statements in the context of compromise. The trial Court recorded the statements of the plaintiffs/respondents namely Jagtar Singh, Balhar Singh and Gurjit Singh to the effect that they were ready to make the remaining sale consideration of Rs. 3,15,94,812/- to the defendant on the next date of hearing in the Court, failing which they would be liable for further proceed