RSA-4949- IN THE HIG 1. RS Shivjot Deve Sarup Singh 2. RS Shivjot Deve Sarup Singh CORAM: H Present: - NIDHI GUP 1. challenge to learnedTrial but refund o 5.3.2019 pas money was s 2. appeals are b impugned ju Court) and 0 therein. For b -2019 (O&M) -1- HIGH COURT OF PUNJAB AND HA RSA-4949-2019 (O&M) t Developers and Builders Ltd. Versus Singh RSA-3938-2019 (O&M) t Developers and Builders Ltd. Versus Singh Date o M: HON'BLE MS. JUSTICE NIDH Mr. Munish Kumar Garg, Advo I GUPTA, J. (ORAL) The plaintiff is in second app nge to the judgment and decree dat dTrial Court whereby decree for speci fund of earnest money was ordered; an 19 passed by the ld. 1st Appellate Cou was set aside; and thus praying for de By way of this common judg ls are being disposed of, as both appea ned judgments of both the Courts b and 05.03.2019 (1st Appellate Court) . For brevity, the facts are being extra D HARYANA AT CHANDIGARH 109 .… Appellant .... Respondent .… Appellant .... Respondent Date of Decision: 17.01.2025 NIDHI GUPTA , Advocate for the appellant. d appeal before this Court laying ee dated 17.8.2015 passed by the specific performance was declined, and judgment and decree dated te Court, whereby refund of earnest for decretal of the suit in toto. n judgment the 02 aforementioned appeals have arisen out of common urts below dated 17.08.2015 (trial ourt) and similar facts are involved extracted from RSA-4949-2019. ying the ned, ated nest ned mon trial lved RISHU KATARIA 2025.01.22 11:39 I attest to the accuracy and authenticity of this order/judgment. RSA-4949- 3. before the le plaintiff whe 4. joint possess sell dated 03 16 kanals-4¾ for permane representativ manner the l directing the or his no Rs.23,96,000 exhibited his 5. defendant en measuring 1 plaint situate Tehsil Khara the defendan were agreed the parties PUDA/Town furnish a con to PUDA/To -2019 (O&M) -2- The parties shall hereinafter be the learned trial Court i.e. the appell ff whereas the respondent as defendan Brief facts of the case are that th ossession as owner by way of specific ted 03.08.2005 and 19.09.2005 regar 4¾ marlas as described in the hea rmanent injunction restraining the def entative from selling, mortgaging, tr r the land as described in the second ng the defendant to execute the sale d is nominee for Rs.17,97,65,600/ ,96,000/- given as earnest money to th ted his readiness and willingness to pe The facts as set out in the pla ant entered into agreement on 03.0 ring 16 kanals 4¾ marlas as fully des situated in the revenue estate of vill Kharar Distt. SAS Nagar. The rate as fendant initially was ₹93,50,000 per greed to be executed with regard to th arties that plaintiff would obtain th /Town Planner Department and for t h a consent deed in favour of plaintiff, DA/Town Planner Department for o fter be referred to as per their status appellant is being referred to as the fendant. that the plaintiff had filed a suit for pecific performance of agreement to regarding the suit land measuring he head note of the plaint; And suit he defendant, its agent servants and ing, transferring alienating in any econd head note of the plaint; And sale deed in favour of the plaintiff ,600/- after the adjustment of y to the defendant. The plaintiff had s to perform his part of contract. the plaint are that the plaintiff and 08.2005 for sale of joint land lly described in the head note of the of village Aujla Hadhbast No 182, rate as settled between plaintiff and 0 per acre. In total six sale deeds d to this land. It was agreed between ain the requisite permission from d for the purpose Defendant would intiff, for enabling plaintiff to apply for obtaining requisite permission atus the t for nt to ring suit and any ntiff of had and land f the 182, and eeds een rom ould pply sion RISHU KATARIA 2025.01.22 11:39 I attest to the accuracy and authenticity of this order/judgment. RSA-4949- with respect developing r by plaintiff was equally interval of 19.9.2005 w the basic ter sell dated 3.8 dated 19.9. ₹88,50,000 p through earl Municipal L first register the date the within the M and conditio intact. The s signature of and other ma Punjab on 20 the defenda obtaining re the said app had been pr Property R -2019 (O&M) -3- espect to this land for building an i ping residential colony. A total amou intiff towards the earnest money. The qually divided into six parts in order al of four months each. Subsequen 05 was executed between defendant sic terms and conditions as incorporat ted 3.8.2005 were retained. However, 19.9.2005 were made and the rate of ,000 per acre, as it came to notice t h earlier agreement to sell dated 3 ipal Limit of Municipal Council, Kha egistered sale deed would be within a the Govt. issues necessary notifi the Municipal of Municipal Council, onditions of earlier agreement to se The substituted/amended agreement to ure of the defendant as well as the si her marginal witnesses. The notificatio on 20.2.2006. Plaintiff on the basis o efendant applied to Chief Town ing required technical clearance of th id application, plaintiff also appended een prepared as per Section (2) (a) o Regulation Act 1995 for a total 58 g an infrastructure with respect to l amount of ₹ 23,96,000/- was paid The total land agreed to be sold order to affect six sale deeds at an equently a fresh agreement dated endant and plaintiff through which, rporated in the earlier agreement to wever, substitution in the agreement rate of land was mutually agreed at tice that this land agreed to be sold ated 3.8.2005, was not within the l, Kharar. The date for effecting the ithin a period of four months, from notification for bringing the land uncil, Kharar. The rest of the terms to sell dated 3.8.2005 were kept ment to sell dated 3.8.2005 bears the the signature on behalf of plaintiff tification was issued by the Govt. of basis of ‘consent deed’ furnished by wn Planner Govt. of Punjab for e of the building plans. Along with pended the letter of consent which ) (a) of the Punjab Apartment and tal 58 kanals 7 marlas of land. But t to paid sold t an ated ich, nt to ent d at sold the the rom land rms kept s the ntiff t. of d by for with hich and But RISHU KATARIA 2025.01.22 11:39 I attest to the accuracy and authenticity of this order/judgment. RSA-4949- in actual def land. Baldev registered sa vide vasika the full sale been handed holding on e favour of pla defendant an and in view issuance of t which the la has come wi Mohali. Plai that he is r remaining la sale consider for the rema execution of ever interest law, in the l intends to b already suff execution of legal notice -2019 (O&M) -4- al defendant had not handed over the p dev Singh who is also a co-shar red sale deed measuring 8 Kanal in fa asika No 845 with respect to his excl ll sale consideration money. The actua handed over to plaintiff by Baldev S g on execution of the registered sale of plaintiff. Earlier there were variou ant and plaintiff. Keeping all these view of the fact that sufficient tim ce of the notification by the Govt. of the land agreed to be sold by the def within the municipal limits of Mun Plaintiff in order to assert its bonaf is ready to execute the sale deed ing land. Plaintiff further asserted t nsideration money and is willing to ex remaining land. Plaintiff has neither tion of the registered sale deed in its nterested in any delay and time-cons n the larger interest of itself, as well a s to build up the requisite infrastruct y suffered enormous loss and dama tion of registered sale deed in its favo notice dated 17.5.2007 upon the de er the physical possession of the suit sharer has already executed and l in favour of plaintiff on 25.5.2006 is exclusive holding, after receiving actual physical possession has also dev Singh with respect to his land sale deed by said Baldev Singh in various correspondence between the these correspondences in abeyance ent time has already lost after the vt. of Punjab on 20.2.2006 through the defendant, in favour of plaintiff of Municipal Council, Kharar, Distt. bonafide called upon the defendant deed in its favour regarding the rted that it is ready with the entire g to execute the registered sale deed either ever intended to prolong the in its favour any further, nor it is consuming litigations in court of well as the defendant. The plaintiff astructure on the land. Plaintiff has damages for the undue delay in ts favour. The plaintiff has served a the defendant for the purpose of suit and 06 ving also land h in the ance the ugh ntiff istt. dant the ntire eed the s rt of ntiff has y in ed a e of RISHU KATARIA 2025.01.22 11:39 I attest to the accuracy and authenticity of this order/judgment. RSA-4949- execution th plaintiff also Complex on been throug perform his fault on the filed. 6. appearance a 7. made in the 8. were framed 9. the parties, -2019 (O&M) -5- tion the registered sale deed on 4.7.20 ff also remained present in the off lex on 20.6.2007 and 20.2.2008. It is throughout ready and willing and ev m his part of contract, but the contra n the part of the defendants. With t Upon notice, defendant/respo rance and resisted the suit of the plaint The plaintiff had filed replicat in the plaint. On the basis of the pleadings o ramed by the learned trial Court: - “1. Whether the plaintiff injunction as prayed for 2. Whether the plaintiff is e owner by way of sp agreement to sell dated 0 the suit land as prayed fo 2a. Whether plaintiff compan and willing to perform th 3. Whether the suit is not form? OPD 4. Whether the suit is bad fo for? OPD 5. Whether the plaintiff i conduct to file the presen 3. Relief.” On the basis of oral and docum rties, the learned trial Court decided 4.7.2007 in favour of plaintiff. The he office of Sub Registrar Tehsil . It is pleaded that the plaintiff has nd even now ready and willing to contract has failed only because of With these pleadings, the suit was respondent herein had put in plaintiff on various grounds. eplication reiterating the assertions ings of the parties, following issues tiff is entitled for permanent for? OPP f is entitled for joint possession as f specific performance of the ted 03.08.2005 and 19.09.2005 in ed for OPP pany has always remained ready m their part of contract? OPP not maintainable in the present ad for delay and laches as prayed iff is estopped by his act and esent suit? OPD documentary evidence adduced by ecided issue Nos.1, 2 and 2A in hsil has g to e of was in ions sues nt as he in dy nt ed nd RISHU KATARIA 2025.01.22 11:39 I attest to the accuracy and authenticity of this order/judgment. RSA-4949- favour of the were not pr issues were However, th alternative Rs.23,96,000 performance Court also g interest @ realization. 10. learned trial the defenda Additional D No. RT-318 Appeal No. vide commo the defendan dismissed w the plaintiff. 11. submits that been duly pr the plaintiff court. Desp -2019 (O&M) -6- of the plaintiff and against the defen not pressed during the course of arg were decided against the defendant an , the learned trial Court decreed tive for refund of earnest/advanc ,96,000/- with proportionate costs mance and permanent injunction wa also granted the plaintiff pre-instituti 6% on the said amount from tion. The said judgment and decre d trial Court was challenged by both efendant by way of two separate a onal District Judge, SAS Nagar (Mo 318/21.09.2015/18.08.2016 filed b l No. RT-271/24.09.2015/27.07.2016 ommon judgment and decree dated 05 fendant was allowed and the appeal sed while setting aside the relief of re intiff. Hence, the present second appe Learned counsel for the app ts that both the agreements dated 3. uly proven on record. Even readiness aintiff to perform the contract was pro Despite this the learned lower Ap defendant; and issues No. 3 to 5 of arguments and as such those dant and in favour of the plaintiff. creed the suit of the plaintiff in dvance money to the tune of costs, while relief of specific was denied. The learned trial stitution, pendente lite and future from the date of its advance till decree dated 17.08.2015 of the both the parties i.e. plaintiff and arate appeals before the learned ar (Mohali) bearing Civil Appeal iled by the defendant; and Civil .2016 filed by the appellant; and ted 05.03.2019, the appeal filed by appeal filed by the plaintiff was f of recovery of earnest money to d appeals. e appellant-plaintiff, inter alia, ted 3.8.2005 and 19.9.2005 have adiness and willingness on part of as proven before the learned trial er Appellate Court has erred in RISHU KATARIA 2025.01.22 11:39 I attest to the accuracy and authenticity of this order/judgment. RSA-4949- drawing an record that t therefore, e contract. Mo money as gr lower Appel plaintiff only his readines same is con learned lowe had also sen it is the defe it prayed th aside. 12. 13. the case file 14. 17.8.2015 injunction to para 19 of t DW2 Direct company wa not be exec parties could -2019 (O&M) -7- an adverse inference against the pla that the plaintiff had appeared to ex ore, exhibited his readiness and w Moreover, the plaintiff was happy as granted to it by the learned trial C Appellate Court has set aside the mo ff only on the ground that the plainti adiness and willingness to perform h is contrary to the evidence on record d lower Appellate Court has failed to so sent a notice to the defendant to co e defendant who had failed to put in ap ed that the judgment of the learned No other argument is raised on I have heard learned counsel fo se file in great detail. The learned trial court vide had denied the relief of specific tion to the plaintiff. The reasoning in 9 of the trial court judgment dated 1 Director of the plaintiff company ha ny was running short of funds becaus executed. It was further found tha could not be concluded because of de the plaintiff as it is clear from the to execute the sale deed and had and willingness to perform the happy with the refund of earnest trial Court. However, the learned he money decree in favour of the plaintiff had failed to demonstrate form his part of contract and the record. In holding as above, the iled to appreciate that the plaintiff t to come to the Tehsil Office and ut in appearance. Accordingly, it is earned 1st Appellate Court be set ed on behalf of the appellant. nsel for the appellant and perused vide judgment and decree dated ecific performance and permanent ing in this regard is contained in ated 17.8.2015, to the effect that ny had deposed that the plaintiff because of which sale deed could nd that the contract between the e of default and breach committed RISHU KATARIA 2025.01.22 11:39 I attest to the accuracy and authenticity of this order/judgment. RSA-4949- by plaintiff c to have been earnest/adva pendente lite 15. 05.03.2019 plaintiff’s su the earnest willingness defendant ha Office on 24 not turn up appeared in Ex. D-4; and plaintiff was Learned App evidence by the sale deed on account o that failure cancellation the learned I the impugne reproduced a -2019 (O&M) -8- intiff company. However, as payment e been made, the suit was decreed in /advance money of ₹23,96,000/– e lite and future interest at the rate of In appeal, vide the impugned 2019 the learned lower Appellate ff’s suit holding that the plaintiff was arnest money as he had failed to gness to perform his part of cont ant had sent a notice to the plaintiff to on 24.07.2006. It was found that on rn up in the office of the Sub-Regis red in the Tehsil and got marked his ; and further held that from Ex. D1 ff was not ready and willing to perfo ed Appellate Court further returned th ce by plaintiff to show that he was hav le deed executed. Moreover, refund of ount of a definite recital in the agreem ailure to execute the sale deed w lation and forfeiture of earnest mone rned Ist Appellate Court are containe pugned judgment and Decree dated uced as under:- “17. Now the question is w ready and willing to perform its yment of earnest money was found ed in the alternative for refund of – along with pre-institution, rate of 6% on the said amount. gned judgment and decree dated ellate Court has dismissed the iff was not entitled to recovery of led to prove his readiness and contract, despite the fact that intiff to come present in the Tehsil hat on 24.7.2006, the plaintiff did egistrar, whereas the defendant ed his presence through Affidavit x. D1 to D3 it was clear that the perform his part of the contract. rned the finding that there was no as having sufficient amount to get nd of earnest money was declined agreement in question to the effect eed would automatically entail money. The relevant findings of ntained in para-Nos. 17 and 18 of dated 5.3.2019, and the same are is whether the respondent was m its part of the contract or not. RISHU KATARIA 2025.01.22 11:39 I attest to the accuracy and authenticity of this order/judgment. RSA-4949- -2019 (O&M) -9- It is settled principle of law tha prove the readiness of a party contract but readiness and will the Court through the act and c other surrounding circumstan readiness and willingness, th placed on record affidavits Ex by the representatives of respo Magistrate on 20.06.2007 and this regard, a perusal of recor had issued a legal notice date upon the respondent to get the as per the terms and cond 03.08.2005. In reply to above sent a legal notice Ex.D2 whe addition to agreement dated 03 dated 19.09.2005 was executed per above agreement, the appe to respondent at the rate of ₹8 above legal notice, it was also also agreed that the appellant w favour of the respondent after f issuance of notification by the addition of the land of appella council, Kharar. In the above mentioned by the respondent already issued notice qua land respect of the land measuring appellant sent a rejoinder date respondent wherein it was st additional amount of ₹3,96,000 in the first sale deed whereas th of ₹20 lacs was to be adjusted there was no such conditio appellant also stated that the to 2 kanal – 14 marla comes ou which ₹3,96,000/- have alread additional amount and he is re after receiving 26,04,000/- fro stated that he is in dire need o deed executed from the person into an agreement to sell for these circumstances, without agreement dated 19.09.2005, h that mere filing of suit does not arty to perform his part of the willingness is to be inferred by nd conduct of a party as well as stances. In order to prove his s, the respondent has merely s Ex.P11/1 and Ex.P12/1 sworn respondent before the Executive and 22.02.2008 respectively. In record shows that the appellant dated 22.06.2006 Ex.D1 calling the sale deed executed from him onditions of agreement dated ove legal notice, the respondent herein it was averred that in d 03.08.2005, a new agreement uted between the parties and as appellant agreed to sell his land ₹88,50,000/- per acre. In the also mentioned that the parties ant will execute first sale deed in fter four months from the date of the government regarding the ellant in the limits of municipal bove legal notice, it was also dent that the government has land in dispute on 20.02.2006 in uring 2 Kanal 14 marlas. The dated 12.07.2006 Ex.D3 to the s stated that he has received ,000/- which was to be adjusted as the remaining earnest money sted in the last sale deed since dition in the agreement. The he total price of land measuring s out to be ₹30,05,285/- out of ready been received by him as is ready to execute the sale deed from the respondent. He also ed of money for getting the sale rsons with whom he has entered for purchasing land and under out admitting the execution of 5, he is ready to sell his land to RISHU KATARIA 2025.01.22 11:39 I attest to the accuracy and authenticity of this order/judgment. RSA-4949- -2019 (O&M) -10- respondent at the rate of ₹88 above notice, the appellant als to come present in the Te 24.07.2006 alongwith balanc execution and registration of fir mentioned in the above notice failed to come present in the a agreement dated 03.08.2005 a cancelled and earnest money w on 24.7.2006, the respondent di the Sub Registrar, Kharar whe in the above office and got m affidavit Ex.D4. From docum becomes clear that respondent perform his part of the contrac evidence on record to estab sufficient amount to get the sa appellant. On the other hand, DW2 Jaiteg Singh, who wa company in the year 2005 and filed by the respondent in the clearly stated that after the exe in question, the sale deed cou there was slump in market and money. The statement of above the respondent company was n get the sale deed executed. 18. The respondent got pre marked in the office of the Ex affidavit Ex.P11/1 on 20.06 through affidavit Ex.P12/1. As sale deed executed on 24.07.20 reminder Ex.D3, the appellant in the office of the Sub Registra 20.02.2008 and in view the e dated 03.08.2005 and 19.09.2 automatically cancelled and forfeited. On the one hand, t observed that the respondent w perform its part of the contr specific performance was not g on the other hand, the relief of has been granted to the respon not ready and willing to perfor ₹88,50,000/- per acre. In the t also requested the respondent Tehsil Comlpex, Kharar on lance sale consideration for of first sale deed and it was also tice that in case, the respondent the above office on 24.07.2006, 05 and 19.09.2005 shall stand ey will be forfeited. Thereafter, nt did not turn up in the office of whereas the appellant appeared ot marked his presence through ocuments Ex.D1 to Ex.D3, it ent was not ready and willing to tract. He has not produced any establish that he was having he sale deed executed from the nd, the appellant has examined was Director of respondent and through whom the suit was the year 2008. Above witness e execution of agreement to sell could not be executed because and respondent company had no bove witness clearly shows that as not having sufficient funds to presence of its representative e Executive Magistrate through 0.06.2007 and on 20.02.2008 . As respondent failed to get the 7.2006 i.e. the date fixed in the lant was not required to appear istrar either on 20.06.2007 or on he express terms of agreement 09.2005, above agreements got and the earnest money got d, the learned trial court has nt was not ready and willing to ontract, as such, the relief of ot granted to the respondent but ef of recovery of earnest money spondent. As the respondent was rform its part of the contract, in RISHU KATARIA 2025.01.22 11:39 I attest to the accuracy and authenticity of this order/judgment. RSA-4949- 16. before this C agreements would auto money.Learn dispute or c satisfactory e 17. record, I fin decree dated 18. 19. 20. connected ca 17.01.2025 rishu -2019 (O&M) -11- view of the express provisions 03.08.2005 and 19.09.2005, th to be forfeited. Moreover, in th not claimed the alternative reli was not competent to grant ab Reliance in this regard placed Singh Vs. Swaran Singh (supr others Vs. Mohinder Singh and Learned counsel for the plaintif this Court that there were specific t ents in question as per which failur automatically entail cancellation arned counsel for the appellant e or controvert the above said evid tory explanation for the same. In view of the above facts , I find that there is no infirmity in t dated 5.3.2019 passed by the learned As such, the present appeals are Pending application(s) if any als A photocopy of this order be cted case. 2025 Whether speaking/reasoned Whether Reportable ions of agreement to sell dated 5, the earnest money was liable in the plaint, the respondent has relief, so the learned trial court t above relief to the respondent. ced on cases titled as Surmukh (supra) and Harish Kumar and h and others (supra).” laintiff has very candidly admitted cific terms and conditions in the failure to execute the sale deed ation and forfeiture of earnest ellant-plaintiff is also unable to d evidence/findings or give any and irrefutable evidence on in the impugned judgment and arned 1st Appellate Court. s are dismissed. any also stand(s) disposed of. er be placed on the file of other ( NIDHI GUPTA ) JUDGE Yes/No Yes/No RISHU KATARIA 2025.01.22 11:39 I attest to the accuracy and authenticity of this order/judgment.