T. D. Vivek Kumar & Anr v. Ranbir Chaudhary

M. R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Punjab and Haryana at Chandigarh in Review Application No. 149-C/2016 in RSA No. 596/2012 and XOBJC -10C/2010, the original defendants have preferred the present appeals. 2. The facts leading to the present appeals are as under: - 2.1 That a “sale agreement” was entered into between appella nt No. 1 as attorney of appellant No. 2 (original defendant s) and the respondent herein (original plaintiff) for sale of the suit plot in question for a consideration of Rs. 17,61,700/-. The date for exec ution and registration of sale deed was tentatively fixed as 18.09.2004. A t otal amount of Rs. 2 lakh was paid as earnest money by the responden t. That thereafter, respondent – original plaintiff instituted the civil suit in the Court of Additional Civil Judge (Senior Division), Faridabad, seeking specific performance of sale agreement and consequent ial relief of injunction. The suit was resisted by the appellants herein – ori ginal defendants on all grounds including the ground that even as pe r the agreement to sell and on failure of the defendants to execute t he sale deed, the plaintiff shall be entitled to double the amount given as an advance and therefore, the plaintiff is not entitled to the decree for specific performance. 2.2 The learned Trial Court vide judgment and decree date d 16.01.2010 refused to pass a decree for specific performance of the sale agreement, however, decreed the suit for recovery of Rs. 4 lakhs i.e., double of the earnest money paid by the plaintiff in accordance with the contract i.e., sale agreement. T. D. VIVEK KUMAR & ANR. v. RANBIR CHAUDHARY 2.3 The First Appellate Court dismissed the appeal. F eeling aggrieved and dissatisfied with the judgment and decree passed by the learned Trial Court confirmed by the First Appellate Court refusing to grant the relief of specific performance of the sale agreement, the respondent herein – original plaintiff preferred the second appeal before the High Court. The appellant(s) also filed the cross objec tion in the second appeal on the findings recorded by the learned Trial Court a nd the First Appellate Court that the plaintiff wasready and willing to perform his part of the contract. By the impugned judgment and order da ted 27.07.2016 the High Court allowed the second appeal by way of overturning the concurrent judgments of the learned Trial Court confirmed by the First Appellate Court and consequently, granted the re lief of specific performance of the sale agreement by observing t hat as the plaintiff was ready and willing to perform his part of the c ontract and therefore, he is entitled to the decree for specific perfor mance. The High Court dismissed the cross objection preferred by the appellants – original defendants. 2.4 That aggrieved by the judgment and order dated 27.07.2016 passed by the High Court allowing the second appeal and dismissing the cross objection, the appellants herein preferred Special Leave P etition (C) Nos.32215-32216/2016 before this Court. The appellant s were relegated to file a review petition before the High Court as according to the appellants the High Court did not consider the relevant c lauses of the sale agreement which as such were considered by the learned Trial Court as well as the First Appellate Court. 2.5 That thereafter, the appellants filed the prese nt Review Application No.149/2016 before the High Court. By the impugn ed judgment and order the High Court has dismissed the review applicationby observing that there is no error apparent on record and no ground for review is made out. Hence, the present appeals. 3. Shri Guru Krishna Kumar, learned Senior Advocate appearing on behalf of the appellants – original defendants, has vehementlysubmitted that in the facts and circumstances of the case the H igh Court has committed a very serious error in dismissing the review application which as such was filed pursuant to the liberty reserved by thi s Court. It is submitted that as while allowing the second appeal the relevant clauses of the sale agreement was not considered by the High Court and t here were certain factual errors and even the cross objection was rejected 543 without consideration; the High Court ought to have allowed the review application and ought to have considered the entire appeal on merits. It is further submitted that even otherwise the High Court has materially erred in passing the decree for specific performanc e of the sale agreement which as such was refused by the learned Trial Court as well as the First Appellate Court. 3.1 It is submitted that even while allowing the second appeal the High Court did not specifically frame any substantial que stion of law which as such was required to be framed as per Section 100 of the CPC. 3.2 It is further submitted that the High Court has not prop erly appreciated and considered the fact that even as per the sale agreement if the first party – appellant fail or refuse to execute the sale agreement within the stipulated time, the seller shall be responsible to pay double the amount given as an advance. It is submitted that therefore, assuming that there was failure on the part of the defendant(s) to execute the sale deed in favour of the plaintiff within the stipulated time, the plaintiff shall only be entitled to double the amount given as an advance. It is submitted that therefore, as such both the Courts below rightly refus ed to pass a decree of specific performance. 3.3 Making the above submissions and relying upon paragraph 31 of the decision of this Court in the case of P. D’Souza Vs. Shondrilo Naidu (2004) 6 SCC 649 , it is prayed to allow the present appeals. 4. While opposing the present appeals, Shri Daya Krishan Sharma, learned counsel appearing on behalf of the respondent – original plaintiff has vehemently submitted that in the present case there are concurrent findings recorded by all the courts below on readiness and willingness on the part of the plaintiff to perform his part of the contract and it was the defendant(s) who did not perform their part of the contract and did not execute the sale deed though, the plaintiff was ready and willing to pay the sale amount. It is submitted that therefore, i n view of the concurrent findings recorded by all the courts below, the High Court has not committed any error in passing the decree for specific performance of the sale agreement. 4.1 It is submitted that therefore, the impugned judgment and order passed by the High Court granting relief for specific performance of the sale agreement may not be interfered with by this Court . Reliance is T. D. VIVEK KUMAR & ANR. v. RANBIR CHAUDHARY [M. R. SHAH, J.] also placed on the decision of this Court in the case of P. D’souza (supra). 5. We have heard learned counsel appearing on behalf of the respective parties at length. 6. At the outset, it is required to be noted that as such the re are concurrent findings of facts recorded by all the courts bel ow on the readiness and willingness of the plaintiff to perform his part of the contract which are not required to be interfered with by this Court in exercise of powers under Article 136 of the Constitution of India. However, at the same time, what is required to be considered is whether in the facts and circumstances of the case, the High Court is justified in overturning the judgment(s) of the learned Trial Court as well as the Fi rst Appellate Court refusing to pass the decree for specific performanc e of the sale agreement? 6.1 At the outset, it isrequiredto be noted that as suc h while allowingthe second appeal and overturning the judgment(s) and order(s) passed by the learned Trial Court as well as the First A ppellate Court, the High Court has not framed the substantial question of law, which is required to be framed under Section 100 of the CPC. 6.2 Even otherwise on merits also looking to the terms and conditions stipulated in the sale agreement the High Court has erred in passing the decree for specific performance which was refused by the learned Trial Court as well as the First Appellate Court. The relevant cl ause in the sale agreement reads as under: - “2. That if the 2 nd party fails to pay the balance amount within stipulated time, the advance will be forfeited and if the first party fail or refuse to execute the sale deed and other n ecessary document in favour of the purchaser or in the name of his nominees within the stipulated time, the seller will be responsible to pay the double of the amount given as advance.” 6.3 Thus, as per clause 2 of the sale agreement, if the se cond party fails to pay the balance amount within stipulated time, the advance will be forfeited and if the seller fail or refuse to execute the sale deed and other necessary document in favour of the purchaser/buyer or in the name of his nominees within the stipulated time, the sell er will be responsible to pay double the amount given as an advance.The refore, 545 on failure on the part of the seller to execute the sale deed within the stipulated time, the purchaser/buyer shall be entitled to the double of the amount given as an advance. It cannot be disputed that the plainti ff being a party to the agreement to sell is bound by the terms and conditions stipulated in the sale agreement. Therefore, on true interp retation of clause 2 of the sale agreement, the learned Trial Court as well as the First Appellate Court as such rightly refused to pass the decree for specific performance of the sale agreement and rightly passed the decree for recovery of Rs. 4 lakhs being double the amount given as an a dvance which as such was in consonance with the clause 2 of the sale agreement. 6.4 An identical question came to be considered by this Court in the case of P. D’souza (supra) and after considering the earlier decision of this Court in the case of M.L. Devender Singh Vs. Syed Khaja (1973) 2 SCC 515 , this Court observed and held that where the sum named is an amount the payment of which may be substituted for the performance of the act at the election of the person by whom the money is to be paid or the act done, the Court may refuse to pass the decree for specific performance. In the present case, the condition spe cifically stipulates that in case of failure on the part of the seller to execute the sale deed within the stipulated time the buyer shall be entitled to double the amount given as an advance. Therefore, the sum is specifically named i.e., double the amount of advance paid. Though, the High Court has relied upon the decision in the case of P. D’souza (supra), the aforesaid aspect has not been considered by the High Court, more particularly, the observations made in paragraph 31 in its true perspective. 7. In view of the above, the High Court has materially err ed in setting aside the concurrent judgment(s) of the learned Tria l Court as well as the First Appellate Court refusing to pass the decree for specific performance and passing the decree for recovery of Rs. 4 lak hs being double the amount of advance paid. Under the circumst ances, the impugned judgment and order passed by the High Court is unsustainable. 8. In view of the above and for the reasons stated above, present appeal(s) arising out of rejecting the review application and the judgment and order passed by the High Court in second appeal are a llowed. Consequently, order passed in review application and the judgment and order passed by the High Court in second appeal granting rel ief for specific performance of the sale agreementdeserve to be quashed and set aside and is/are accordingly quashed and set aside. Conse quently, T. D. VIVEK KUMAR & ANR. v. RANBIR CHAUDHARY [M. R. SHAH, J.] the judgment and decree passed by the learned Trial Court affirmed by the First Appellate Court stands restored. The appeal arising out of the dismissal of the cross objection stands disposed of. Ankit Gyan Appeal disposed of. (Assisted by : Abhishek Agnihotri and Aarsh Choudha ry, LCRAs)