Amit Rawal, J. - (1.) The appellant -plaintiffs are in Regular Second Appeal challenging the judgments and decrees rendered by both the Courts below, whereby, suit seeking specific performance of the agreement to sell dated 02.09.1988 (Ex. P2), has been dismissed for want of readiness and willingness.
(2.) Mr. Animesh Sharma, learned counsel appearing on behalf of the appellant -plaintiffs submits that defendants No. 1 and 2 through their attorney - Hardevinder Singh/defendant No. 3 agreed to sell the property in dispute fully described in the head note of the plaint on the basis of the aforementioned agreement to sell in favour of the appellant -plaintiffs. He submits that agreement to sell was executed at Rajpura and earnest money of Rs. 60,000/ - was paid and the sale deed was to be executed on or before 15.05.1990. As per the terms and conditions of the agreement, a sum of Rs. 40,000/ - was to be paid by the plaintiffs and Joginder Singh (their father) to the vendor/defendants on 15.05.1989 and the remaining sale consideration at the time of execution and registration of the sale deed. He also submits that plaintiffs and Joginder Singh deceased their father had come to Tehsil premises Rajpura on 15.05.1989 along with an amount of Rs. 40,000/ - and remained present in Tehsil Complex from 9 A.M. to 5 P.M. but the defendants did not turn up and accordingly, presence was marked on Ex. P1 affidavit, which was attested from the Executive Magistrate Rajpura regarding their presence. He further submits that defendants started negotiations with some third person to alienate the land in dispute and accordingly, suit seeking permanent injunction was filed on 22.05.1990. There is a categoric pleading in the plaint that the appellant -plaintiffs had always been remained ready and willing to perform their part of the contract. Even on 15.05.1989, the plaintiffs had come to the office of Sub Registrar, Rajpura along with the remaining balance sale consideration and amount of expenses for execution and registration of the sale deed but the defendants did not turn up, thus, an alternative relief for recovery of amount of Rs. 19,96,500/ - i.e. Rs. 60,000/ - earnest money and Rs. 19,36,500/ - as damages for loss of business and interest was also prayed for. He further submits that defendants committed breach of agreement in not getting the sale deed executed and accordingly, the present suit was filed on 22.05.1990, thus, there had been no delay in seeking the specific performance yet both the Courts below non -suited the appellant -plaintiffs by relying upon the provisions of Ss. 49 and 55 of the Indian Contract Act (in short "the Act"), whereas, the aforementioned provisions do not apply in respect of agreement to sell. In fact, those provisions are in respect of contract, where, the promisor and promissory had agreed to perform the part of contract but did not adhere to same. In such circumstances, it has been held that aggrieved party cannot seek the redressal. The alleged legal notice dated 16.05.1989 (Ex. P6) is nothing but a ploy to wriggle out of the terms and conditions of the agreement as the agreement did not envisage the place for payment of Rs. 40,000/ -. The defendants did not take the plea of time being essence of agreement and therefore, the Courts below ought to have granted the discretion as per the provisions of Sec. 20 of the Specific Relief Act, 1963 (in short "1963 Act"). A copy of the suit for permanent injunction and written statement have been proved on record which are Ex. D7 and Ex. D8. He further submits that another agreement to sell was also entered into with Balbir Kaur and date for execution and registration of the sale deed was 15.05.1989. Thus, on the same date, appellant -plaintiffs had to go to the office of the Registrar for execution and registration of the sale deed and had also taken a sum of Rs. 40,000/ - for payment to the respondent -defendants being part performance of the agreement to sell, aforementioned. The rate of the land agreed to be sold was Rs. 48,000/ - per acre. The alleged legal notice dated 16.05.1989 cancelling the agreement to sell was intentional act of the vendor as he has turned dishonest, for, prices of the property had increased manifold. He further submits that defendants may come out with an objection that simpliciter suit for specific performance of the agreement to sell, in the absence of the seeking declaration qua cancellation of the agreement as indicated in the notice dated 16.05.1989 would not be maintainable, in view of the ratio decidendi culled out by the Hon'ble Supreme Court while answering point No. 1 in I.S. Sikandar (D) by L.Rs. vs. K. Subramani and others : 2014 (1) R.C.R. (Civil) 236 as the facts and circumstances of the each case have to be seen as to whether the appellant -plaintiffs had actually been not ready and willing or otherwise. Whereas, right from the date of the agreement to sell, till filing of the suit, there had been a continuous/perpetual readiness and willingness as immediately after the expiry of date, i.e., 15.05.1989, when a sum of Rs. 40,000/ - was to be paid and after expiry of the stipulated date, the present suit for specific performance was filed on 22.05.1990.
(3.) In support of his aforementioned contentions, he relied upon the judgments rendered by the Hon'ble Supreme Court, Madras High Court, Rajasthan High Court and as well as, by this Court in RSA No. 2311 of 2015 titled as Bal Vir Sehgal vs. Sanjay Bansal and others decided on 11.01.2016; Mandhir Singh and others vs. Gurjant Singh and another : 2014 (3) R.C.R. (Civil) 728; Rajinder Singh @ Harjinder Singh and another vs. Paramjit Singh and others : 2015 (4) PLR 826; RSA No. 2790 of 2015 titled as Sanjay Dhamija vs. Ram Kishan (deceased) through his LRs decided on 03.12.2015; RSA No. 2572 of 2011 titled as Beant Singh and others vs. Karnail Singh and others decided on 12.02.2016; Abdul Sami vs. Smt. Neelu Dhandhiya, 2014 SCC OnLine Raj 5888 and G. Sekar vs. K. Masilamani : 2015 SCC OnLine Mad 2908 to contend that in all the aforementioned judgments, judgment rendered by the Hon'ble Supreme Court in I.S. Sikandar (supra) was referred to and held to be not applicable in view of the facts and circumstances of the case. Rather in one of the judgments rendered by this Court, i.e., in Maninder Singh (supra), this Court had an occasion to discuss the ratio and held that time was not essence of the agreement and therefore, the mala fide conduct of the seller immediately cancelling the agreement to sell after the date fixed for execution and registration of the sale deed would not dis -entitle the plaintiffs to seek discretionary relief. In the instant case also, there was a tearing hurry on behalf of the defendants to get rid of the agreement to sell and thus, urges this Court to formulate the following substantial questions of law which read thus: - "i) Whether in the facts and circumstances of the case, both the Courts below have erred in holding that the appellants had defaulted in terms of Ss. 49 and 55 of the Contract Act, when in fact it was proven that it was the respondents who had defaulted in executing the sale deed as per law? ii) Whether in the facts and circumstances of the case, both the Courts erred in holding that the appellants were not ready and willing to perform their part of the contract and had violated the terms of the agreement dated 02.09.1988? iii) Whether in the facts and circumstances of the case, both the Courts below ignored that time was not essence of the agreement? iv) Whether the judgments and decrees by both the Courts below have been passed on the basis of total misreading and non -appreciation of evidence on record -;