RSA No.1475 of 2015 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

RSA No.1475 of 2015 (O&M)

Date of Order: 05.03.2019

Jai Kishan Garg

...Appellant

Versus

Randhir Singh

...Respondents

CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL

Present:

Mr. Ashok Aggarwal, Sr. Advocate, with

Mr. Mukul Aggarwal, Advocate,

for the appellant.

Mr. Kamal Sehgal, Advocate,

for the respondent.

ANIL KSHETARPAL, J.

Defendant-appellant is in the regular second appeal against the

judgment passed by the learned first appellate court reversing the judgment

of the trial court and granting decree for specific performance of the

agreement to sell dated 17.10.2005.

In the present case, signatures on the agreement to sell are not

disputed, however, defendant has pleaded that the agreement to sell was

executed in good faith and the same is result of fraud. It has been pleaded

that the defendant is not the complete owner of the property.

Learned trial court after returning a finding that the execution

of the agreement to sell and payment of earnest money has been proved,

ordered refund of double of the amount of the earnest money on two

grounds:-

(i)

that the title of the defendant is not clear;

NARESH KUMAR

2019.04.04 10:20

I attest to the accuracy and

integrity of this document

Chandigarh

RSA No.1475 of 2015 (O&M)

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(ii)

that the Rehabilitation Department is not party to the

suit.

Learned first appellate court after re-appreciating the evidence

decreed the suit as noticed above.

Learned counsel appearing for the appellant has submitted that

in the agreement to sell, there was no date for performance of the contract.

He submitted that the amount of balance sale consideration was never

tendered to the defendant nor it was sent through any demand draft. Hence,

he submitted that the plaintiff is not proved to be ready and willing to

perform his part of the contract. He further submitted that the discretion

exercised by the first appellate court is erroneous. He further submitted that

the title of the defendant-appellant is defective and therefore, decree for

specific performance should not have been passed. He further submitted

that now the decree for specific performance of the agreement to sell is

inequitable because the prices of the property have increased very sharply.

On the other hand, learned counsel appearing for the

respondent has submitted that in the agreement to sell it had been clearly

stipulated that the sale deed would be executed within a period of 60 days.

He further drew attention of the court to the copy of the plaint wherein the

plaintiff has pleaded that he contacted the defendant for execution and

registration of the sale deed and the defendant orally informed him that he

will get the sale deed registered on 15.12.2005. Therefore, the plaintiff

went to the office of Sub-Registrar on 15.12.2005 but the defendant did not

come forward and in order to prove his presence he got attested an affidavit

from the Executive Magistrate on 15.12.2005. He has further submitted

that the plaintiff has pleaded that he was always ready and willing and still

NARESH KUMAR

2019.04.04 10:20

I attest to the accuracy and

integrity of this document

Chandigarh

RSA No.1475 of 2015 (O&M)

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ready and willing to perform his part of the contract. The suit was filed

within one month from the date the plaintiff visited the office of Sub-

Registrar. Hence, the plaintiff is proved to be ready and willing to perform

his part of the contract. He further submitted that the learned first appellate

court has exercised the discretion in accordance with Section 20 of the

Specific Relief Act, 1963. He further submitted that there is no evidence

with respect to any defece in the title of the plaintiff. He submitted that the

defendant had purchased the property in a public auction from the

Rehabilitation Department and his bid was accepted on 20.07.2005.

Plaintiff has already deposited the en