Khem Chand v. Tekaram

(1) Whether reporters of local paper may be allowed to see the judgment? (2) To be referred to the reporter or not? (3) Whether the judgment should be reported in the Digest ?

JUDGMENT

ARUNA SURESH, J. (Oral) CM APPL.4111/2010 (delay) and 4112/2010 (delay in refiling) There is a delay of 171 days in filing the appeal and another 14 days delay in refiling the appeal. For reasons stated in the applications, delay in filing as well as refiling the appeal is hereby condoned. RSA 45/2010 Page 1 of? 2010:DHC:15508 Applications stand disposed of accordingly. RSA 45/2010

1. Appellantherein was the ownerof propertyNo.1809,bearing Khasra no.128 (New) and 431 (Old), Khatoni No.293, measuring 350 Sq.Yds., situated in Panna Mamurpur, Narela Delhi.' He entered into an Agreement to Sell dated 18.7.1995 with the Respondent for a consideration of Rs.2,00,000/- Respondent paid a sum of Rs.1,00,000/- as eamest money at the time of execution of the Agreement to Sell. As per the Agreement, Sale Deed was to be executed within a period of IV[2] years from the date of execution of the Agreement to Sell on payment of balance sale consideration amount. At the time of execution of Agreement to Sell, appellant had handed over the original Title Deeds of the property as well as possession of the property to the Respondent. However, appellant failed to execute the Sale Deed in terms of the Agreement to Sell though Respondent was ready and willing to pay the balance amount of Rs. 1,00,000/-.

2. Appellant apparently refused to execute the Sale Deed because of appreciation in value of the suit property over a period of 1V[2] years. Respondent accordingly filed a suit for specific performance of Agreement to Sell dated 18.7.1995. Trial Court while decreeing the RSA 45/2010 Page 2 of? claim of the Respondentfor specificperformance observed " The plaintiff as PWl has deposed that he had been asking the defendant to obtain the necessary permission and execute the documents in respect of the property in his favour but the defendant has failed to do so. In support of his case, the plaintiff has examined Sh. Tara Chand as PW[3] who has deposed that he along with plaintiff had met the defendant on 01.01.97 and had asked for the execution of the sale deed after receiving the remaining amount of Rs. 1,00,000/-. The PWl has further deposed that he served a legal notice dated 15.01.97 upon the defendant intimating him that the balance sale consideration of Rs. 1,00,000/- was ready with him for execution and registration ofthe sale deed but inspite of the service of the said notice, the defendant neither gave any reply nor executed the sale deed in respect of the property in favour of the plaintiff The PWl has placed and proved on record the copy of the legal notice dated 15.01.97 along with UPC and Postal Receipt as Ex.PWl/C to PWl/E. The defendant has failed to deny the receipt of the said notice from the plaintiff his WS. Though the defendant has averred that he had been asking the plaintiff to pay the balance consideration amount but he has failed to place on \^j record any document in support of his averments. In fact, the defendant has failed to specify the dates on which he approached the plaintiff for the said purpose. Althou^ in his testimony, the defendant has deposed that he approached the plaintiff thrice i.e. RSA 45/2010 Page 3 of? 15.12.96, 18.12.96 and 20.01.97, for the said purpose but needless to say, the above deposition of the DWl is beyond pleadings. The DWl admitted in his cross examination that he neither issued any legal notice to the plaintiff nor filed any suit for cancellation ofthe agreement to sell dated 18.07.95. It has been held by the Hon'ble Supreme Court in P.G. Tanwade Vs. G.B. Kadam reported as AIR 1997 Supreme Court 463 that when in the plaint, the plaintiff averred that he had sent registered notice to the seller to execute the sale deed and that he is willing to pay fees required for sale deed and costs of registration and the balance amount of sale deed and repeated such averments in evidence, the plaintiff had succeeded in proving his readiness and ^ willingness to perform his part of the contract. From the above, it is evidence that the plaintiff had been ready and willing to perform his part ofthe contract whereas the defendant has failed to substaiitiate the defence putforth by him. Accordingly, the above issues are decided in favour of the plaintiff and against the defendant. RELIEF: In the light of the above fmdings, the suit of the plaintiff is hereby decreed with costs. The plaintiff is directed to pay to the defendant or deposit in the Court the remaining consideration of Rs. 1,00,000/- within one month from today. On the deposition of the above amount by the plaintiff,' the defendant shall execute the sale deed in respect of the property bearing Khasra No. 128 (New) 431 (Old) Khatoni No.293, Property No.1809 measuring 350 sq. RSA 45/2010 Page 4 of? yards. Situated in Panna Mamurpur, N^ela, Delhi and get the same registered in favour of the plaintiff within one month thereafter "

3. Appeal filed by the appellant challenging the judgment and decree of the Trial Court dated 11.09.2006 was dismissed as barred by period of limitation.

4. It was also observed by the Appellate Court that possession of the suit property having been taken over by the Respondent inexecution proceedings, the execution stood satisfied. Under the circumstances, the Appellate Court was of the opinion that appellant had failed to ' satisfy the conscience of the Court as to how he could seek. indulgence ofthe Court toignore the law oflimitation inentertaining the appeal, which ontheface ofitwas without any merits.

5. Learned counsel for the appellant has submitted that Agreement to Sell dated 18.7.1995 is voidab initio as in the said Agreementto Sell description ofthe property is incorrect though, property number is rightly written. The appellant had inadvertently signed the Agreement to Sell being old aged person having weak eye sight on the presumption that the document contained true description ofthe suit property. He has submitted that description of property NO. 1809 which find mention in the Agreement, in fact pertains to RSA45/2010 Pages of[7] being additional evidence cannot be taken into consideration by this Court.

8. As discussed above, it is a settled principle of law that once execution of a document has been admitted before the Court below and the said court has based its findings on the relevant documents i.e. Agreement to Sell, the appellant cannot argue before this Court that there was an error in the document which the court below overlooked especially when no such defence was raised at the initial stage.

9. Under the circumstances of this case, no substantial question of law is required to be formulated as none arises.

10. Hence, I find no merits in the appeal, the same is accordingly dismissed.

(ARUNA SURESH) JUDGE