IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** 111 RSA-6505-2018 (O&M) Date of Decision.:11.02.2025 Dalip Kumar …..Appellant Vs. Kushal Kumar Sharma .….Respondent CORAM:- HON'BLE MR. JUSTICE DEEPAK GUPTA Present:- Mr. R. Karkeya, Advocate for the appellant. **** DEEPAK GUPTA, J. (ORAL) Plainff of the suit has approached this Court by way of present regular second appeal against judgment & decree dated 15.01.2018 passed by the first Appellate Court of learned Addional District Judge, Amritsar, affirming the judgment & decree dated 30.08.2016 of the trial Court, whereby suit of the appellant-plainff seeking decree for specific performance in respect of property in dispute, was dismissed. Plainff is, thus, against the concurrent findings of the Courts below. 2.1 It is not in dispute that vide an agreement dated 31.10.2008 defendant (respondent herein) agreed to sell the suit property to the plainff (appellant herein) for consideraon of ₹3,50,000/-. An amount of ₹50,000/- was paid by the plainff to defendant as earnest money. Balance sale consideraon was to be paid on or before 27.01.2009, which was agreed to be the target date for execuon and registraon of the sale deed. Plainff pleaded his readiness and willingness to perform his part of contract and alleged that defendant put off the ma8er on one or the other pretext. Plainff also pleaded that he had appeared in the office of Sub- Registrar on 27.01.2009 and then on 07.11.2011 a:er serving a legal noce NEETIKA TUTEJA 2025.02.11 18:23 I attest to the accuracy and integrity of this document RSA-6505-2018 (O&M) dated 21.10.2011 but defendant did not turn up. 2.2 Defendant contested the suit by submi;ng that plainff was never ready and willing to perform his part of contract and that despite requests made by the defendant to the plainff several mes to get the sale deed executed, plainff failed to do so. Defendant further pleaded that agreement to sell stood cancelled and the earnest money stood forfeited on account of the failure of the plainff to get the sale deed executed. 2.3 Necessary issues were framed. Evidence produced by the pares was taken on record. The trial Court found that plainff was not ready and willing to perform his part of contract and so, dismissed the suit. Appellate Court affirmed the findings. 3. Assailing the aforesaid findings, it is contended by learned counsel for the appellant-plainff that defendant was required to get the mutaon sanconed in respect of the suit property in the revenue record and only therea:er the sale deed was to be executed. Learned counsel contends that since the tle to the suit property was not clear, therefore sale deed could not be got executed. 4. Learned counsel for the appellant has been heard and paper- book perused. 5. There is no merit in the contenon raised by Ld. counsel. Perusal of the judgment of the Appellate Court would reveal that as per evidence on record, the original sale deed had been handed over by the defendant to the plainff for the purpose of verificaon. Once the defendant had handed over original sale deed of the suit property to show his tle, this is lame excuse on the part of the plainff to say that mutaon was required to be incorporated in respect of the sale deed. 6. Apart from above, both the Courts have noced that though the plainff pleaded that he appeared in office of Sub-Registrar on 27.01.2009 i.e. the target date fixed in the agreement and then on Page 2 of 9 pages NEETIKA TUTEJA 2025.02.11 18:23 I attest to the accuracy and integrity of this document RSA-6505-2018 (O&M) 07.11.2011 a:er serving a legal noce dated 21.10.2011 but except for the oral statement of the plainff in this regard, there was no other evidence to prove this asseron. Plainff candidly admi8ed in his cross-examinaon that he was unable to produce any document to show his presence in the office of Sub-Registrar to mark his presence either on 27.01.2009 or on 07.11.2011. So much so, plainff did not even place on record any postal receipt or the cerficate of posng to show that alleged legal noce dated 21.10.2011 was sent by him to the defendant. Ma8er does not stop here. It has been observed by the Courts below that no evidence was produced by the plainff to show that he was having sufficient money either on 27.01.2009 or later on, so as to perform his part of contract to pay the balance sale consideraon. 7. It is further important to noce that though the agreement to sell was executed on 31.10.2008 with target date as 27.01.2009 but the suit was filed on 05.01.2012 i.e. just a few days prior to the expiry of the limitaon period for filing the suit for specific performance. No doubt that suit is technically within limitaon but the fact that suit has been filed a:er such a long delay i.e. just a few days prior to the date of expiry of the limitaon period in itself is sufficient to show the conduct of the plainff- appellant to indicate that he was not ready and willing to perform his part of contract. In this regard legal posion explained by Hon’ble Supreme Court may also be noced. 8. In Saradamani Kandappan Vs. S. Rajalakshmi and others, 2011 AIR SC (Civil) 812,Hon’ble Supreme Court has observed that the law that ‘me was not essence of contract’ was evolved long years back, when prices were stable and inflaon was unknown. However, these days there is galloping increase in prices of immovable properes. Market values of properes are no longer stable or steady and therefore, there is an urgent need to revisit the principle that me is not of the essence in contracts. It will be apt to reproduce the observaons made by Hon’ble Supreme Court Page 3 of 9 pages NEETIKA TUTEJA 2025.02.11 18:23 I attest to the accuracy and integrity of this document RSA-6505-2018 (O&M) in this regard a:er referring to a decision in K.S. Vidyanadam and others Vs. Vairavan, (1997) 3 SCC 1, which read as under:- “27. A correct perspecve relang to the queson whether me is not of the essence of the contract in contracts relang to immovable property, is given by this court in K.S. Vidyanadam and Others vs. Vairavan - (1997) 3 SCC 1 (by Jeevan Reddy J. who incidentally was a member of the Constuon Bench in Chand Rani. This Court observed: "It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relang to immovable property, me is not of the essence of the contract unless specifically provided to that effect. In the case of urban properes in India, it is well-known that their prices have been going up sharply over the last few decades - parcularly a:er 1973. .........We cannot be oblivious to the reality and the reality is constant and connuous rise in the values of urban properes - fuelled by large scale migraon of people from rural areas to urban centres and by inflaon. Indeed, we are inclined to think that the rigor of the rule evolved by courts that me is not of the essence of the contract in the case of immovable properes - evolved in mes when prices and values were stable and inflaon was unknown - requires to be relaxed, if not modified, parcularly in the case of urban immovable properes. It is high me, we do so." (emphasis supplied) Therefore there is an urgent need to revisit the principle that me is not of the essence in contracts relang to immovable properes and also explain the current posion of law with regard to contracts relang to immovable property made a:er 1975, in view of the changed circumstances arising from inflaon and steep increase in prices. We do not propose to undertake that exercise in this case, nor referring the ma8er to larger bench as we have held on facts in this case that me is the essence of the contract, even with reference to the principles in Chand Rani and other cases. Be that as it may. 28. Till the issue is considered in an appropriate case, we can only Page 4 of 9 pages NEETIKA TUTEJA 2025.02.11 18:23 I attest to the accuracy and integrity of this document RSA-6505-2018 (O&M) reiterate what has been suggested in K.S. Vidyanadam (supra): (i) Courts, while exercising discreon in suits for specific performance, should bear in mind that when the pares prescribe a me/period, for taking certain steps or for compleon of the transacon, that must have some significance and therefore me/period prescribed cannot be ignored. (ii) Courts will apply greater scruny and strictness when considering whether the purchaser was `ready and willing' to perform his part of the contract. (iii) Every suit for specific performance need not be decreed merely because it is filed within the period of limitaon by ignoring the me limits spulated in the agreement. Courts will also `frown' upon suits which are not filed immediately a:er the breach/refusal. The fact that limitaon is three years does not mean a purchaser can wait for 1 or 2 years to file a suit and obtain specific performance. The three year period is intended to assist purchasers in special cases, as for example, where the major part of the consideraon has been paid to the vendor and possession has been delivered in part performance, where equity shi:s in favour of the purchaser.” 9. Taking similar view in the case of U.N. Krishnamurthy (since deceased) through LRs Vs. A.M. Krishnamurthy, 2022 AIR (Supreme Court) 3361, Hon’ble Supreme Court held that the fact that limitaon is three years does not mean that purchaser can wait for one or two years to file the suit and obtain specific performance. Hon’ble Supreme Court observed as under: - “38. In this case, we cannot overlook the fact that the suit property is located in the industrial town of Hosur located about 30/40 kms. from Bengaluru. The Court is obliged to take judicial noce of the phenomenal rise in the price of real estate in Hosur. The proposion finds support from case reported in K.S. Vidyanadam v. Vairavan (supra). To quote this Court “we cannot be oblivious to reality – and the reality is constant and connuous rise in the values of urban properes -fuelled by large scale Page 5 of 9 pages NEETIKA TUTEJA 2025.02.11 18:23 I attest to the accuracy and integrity of this document RSA-6505-2018 (O&M) migraon of people from rural areas to urban centres and by inflaon.” 39. Mr. Venugopal argued that the Plainff had only paid an insignificant amount of Rs.10,001/- as advance when the consideraon was Rs.15,10,000/-. Having paid an insignificant amount the Plainff was not entled to discreonary equitable relief of Specific Performance, as observed by this Court in Saradamani Kandappan v. S. Rajalakshmi (2011) 12 SCC 18. The relevant paragraph of the judgment of this Court is set out herein below:- “37. The reality arising from this economic change cannot connue to be ignored in deciding cases relang to specific performance. The steep increase in prices is a circumstance which makes it inequitable to grant the relief of specific performance where the purchaser does not take steps to complete the sale within the agreed period, and the vendor has not been responsible for any delay or non-performance. A purchaser can no longer take shelter under the principle that me is not of essence in performance of contracts relang to immovable property, to cover his delays, laches, breaches and “non-readiness”. The precedents from an era, when high inflaon was unknown, holding that me is not of the essence of the contract in regard to immovable properes, may no longer apply, not because the principle laid down therein is unsound or erroneous, but the circumstances that existed when the said principle was evolved, no longer exist. In these days of galloping increases in prices of immovable properes, to hold that a vendor who took an earnest money of say about 10% of the sale price and agreed for three months or four months as the period for performance, did not intend that me should be the essence, will be a cruel joke on him, and will result in injusce. Adding to the misery is the delay in disposal of cases relang to specific performance, as suits and appeals therefrom rounely take two to three decades to a8ain finality. As a result, an owner agreeing to sell a property for rupees one lakh and receiving rupees ten thousand as advance may be required to execute a sale deed a quarter century later by receiving the remaining rupees ninety thousand, when the property value has Page 6 of 9 pages NEETIKA TUTEJA 2025.02.11 18:23 I attest to the accuracy and integrity of this document RSA-6505-2018 (O&M) risen to a crore of rupees.” 40. As argued by Mr. Venugopal, the fact that the suit had been filed a:er three years, just before expiry of the period of limitaon, was also a ground to decline the Respondent Plainff the equitable relief of Specific Performance for purchase of immovable property. Mr. Venugopal’s argument finds support from the judgments of this Court in P.R. Deb and Associates v. Sunanda Roy (1996) 4 SCC 423; K.S. Vidyanadam v. Vairavan (1997) 3 SCC 1; Manjunath Anandapa v. Tammanasa (2003) 10 SCC 390, Azhar Sultana v. B. Rajamani (2009) 17 SCC 27; Saradamani Kandappan v. S. Rajalakshmi (2011) 12 SCC 18. 41 & 42 Xxxxxxxx……. 43. In Saradamani Kandappan (supra), this Court reiterated that (i) while exercising discreon in suits for Specific Performance, the Courts should bear in mind that when the pares prescribed a me for taking certain steps or for compleon of the transacon, that must have some significance and therefore me/period prescribed cannot be ignored; (ii) the Courts will apply greater scruny and strictness when considering whether purchaser was ready and willing to perform his part of the contract and (iii) every suit for Specific Performance need not be decreed merely because it is filed within the period of limitaon, by ignoring me limits spulated in the agreement. The courts will also frown upon suits which are not filed immediately a:er the breach/refusal. The fact that limitaon is three years does not mean that a purchaser can wait for one or two years to file a suit and obtain Specific Performance. The three year period is intended to assist the purchaser in special cases, as for example where the major part of the consideraon has been paid to the vendor and possession has been delivered in part performance, where equity shi:s in favour of the purchaser.” 10. In the case of P. Daivasigamani Vs. S. Sambandan, 2022 AIR (Supreme Court) 5009, a:er referring to decisions in the case of K.S. Vidyanadam and others (supra) and Saradamani Kandappan (supra), it Page 7 of 9 pages NEETIKA TUTEJA 2025.02.11 18:23 I attest to the accuracy and integrity of this document RSA-6505-2018 (O&M) has been held by Hon’ble Supreme Court that there is disncon between limitaon and delay and laches. Limitaon is a ground for dismissing a suit, even if the plainff is otherwise entled to specific performance, while delay operates to determine the discreon and exercise under Secon 20 of the Specific Relief Act, even if the suit is not dismissed on account of limitaon. It was held further that not one but several aspects have to be considered when the court, in terms of Secon 20 of the Specific Relief Act exercises discreon, guided by judicial principles, sound and reasonable. 11. In the case of Alagammal and others Vs. Ganesan and another, 2024(1) RCR (Civil) 502, suit for specific performance was filed 2½ years a:er the target date fixed in the agreement. It was observed by Hon’ble Supreme Court as under: - “In the case before us, it is not mere delay. It is a case of total inacon on the part of the plainff for 2 1/2 years in clear violaon of the terms of agreement which required him to pay the balance, purchase the stamp papers and then ask for execuon of sale deed within six months. Further, the delay is coupled with substanal rise in prices — according to the defendants, three mes — between the date of agreement and the date of suit noce. The delay has brought about a situaon where it would be inequitable to give the relief of specific performance to the plainff.” (Emphasis supplied) 12. Same view was also taken by the Hon’ble Supreme Court in Rajesh Kumar vs. Anand Kumar others, (2024) SCC 981 a:er relying upon K.S. Vidyanadam’s case, Azhar Sultana’s case and Saradamani Kandappan’s case. 13. On account of the enre discussion as above of the legal as well as factual aspects, this Court does not find any scope whatsoever to interfere in the concurrent findings of facts as recorded by the Courts below, which are found to be based upon proper appreciaon of evidence and the legal posion. There is no perversity or illegality calling for any Page 8 of 9 pages NEETIKA TUTEJA 2025.02.11 18:23 I attest to the accuracy and integrity of this document RSA-6505-2018 (O&M) interference. As such, holding the present appeal to be devoid of any merit, the same is hereby dismissed. (DEEPAK GUPTA) JUDGE February 11, 2025 Nee;ka Tuteja Whether Speaking/reasoned Yes/No Whether Reportable Yes/No Page 9 of 9 pages NEETIKA TUTEJA 2025.02.11 18:23 I attest to the accuracy and integrity of this document