T. D. Vivek Kumar vs Ranbir Chaudhary

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 2514-2516 OF 2023

T.D. Vivek Kumar & Anr. ..Appellant(s)

Versus

Ranbir Chaudhary …Respondent(s)

JUDGMENT

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 -

Signature Not Verified Digitally signed by Neetu Sachdeva Page 1 of 19 Date: 2023.04.28 16:27:27 IST Reason: 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 appellant No. 1 as attorney of

appellant No. 2 (original defendants) 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 execution

and registration of sale deed was tentatively

fixed as 18.09.2004. A total amount of Rs. 2

lakh was paid as earnest money by the

respondent. That thereafter, respondent –

original plaintiff instituted the civil suit in the

Court of Additional Civil Judge (Senior

Page 2 of 19 Division), Faridabad, seeking specific

performance of sale agreement and

consequential relief of injunction. The suit

was resisted by the appellants herein –

original defendants on all grounds including

the ground that even as per the agreement to

sell and on failure of the defendants to

execute the 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 dated 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 Page 3 of 19 earnest money paid by the plaintiff in

accordance with the contract i.e., sale

agreement.

2.3 The First Appellate Court dismissed the

appeal. Feeling 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

objection in the second appeal on the findings

recorded by the learned Trial Court and the

First Appellate Court that the plaintiff was

ready and willing to perform his part of the

Page 4 of 19 contract. By the impugned judgment and

order dated 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 relief of specific performance of the sale

agreement by observing that as the plaintiff

was ready and willing to perform his part of

the contract and therefore, he is entitled to

the decree for specific performance. 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

Page 5 of 19 the cross objection, the appellants herein

preferred Special Leave Petition (C) Nos.

32215-32216/2016 before this Court. The

appellants were relegated to file a review

petition before the High Court as according to

the appellants the High Court did not

consider the relevant clauses 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

present Review Application No. 149/2016

before the High Court. By the impugned

judgment and order the High Court has

dismissed the review application by observing

that there is no error apparent on record and

Page 6 of 19 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

vehemently submitted that in the facts and

circumstances of the case the High Court has

committed a very serious error in dismissing

the review application which as such was

filed pursuant to the liberty reserved by this

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 there were certain factual

errors and even the cross objection was

rejected without consideration; the High

Page 7 of 19 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 performance 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 question 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 properly appreciated and considered

Page 8 of 19 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 refused to pass a decree

of specific performance.

3.3 Making the above submissions and relying

upon paragraph 31 of the decision of this

Page 9 of 19 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, in view of the

Page 10 of 19 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 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 there are concurrent findings of facts

recorded by all the courts below on the Page 11 of 19 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 First Appellate

Court refusing to pass the decree for specific

performance of the sale agreement?

6.1 At the outset, it is required to be noted that

as such while allowing the second appeal and

overturning the judgment(s) and order(s)

passed by the learned Trial Court as well as

Page 12 of 19 the First Appellate 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 clause in the sale agreement reads

as under: -

“2. That if the 2nd 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 necessary document in favour of the purchaser or in the name of his nominees within the stipulated

Page 13 of 19 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 second 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 seller will be responsible

to pay double the amount given as an

advance. Therefore, 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

plaintiff being a party to the agreement to sell

Page 14 of 19 is bound by the terms and conditions

stipulated in the sale agreement. Therefore,

on true interpretation 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 advance

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

Page 15 of 19 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 specifically

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

Page 16 of 19 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 erred in setting aside the

concurrent judgment(s) of the learned Trial

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 lakhs being double the

amount of advance paid. Under the

circumstances, 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

Page 17 of 19 rejecting the review application and the

judgment and order passed by the High Court

in second appeal are allowed. Consequently,

order passed in review application and the

judgment and order passed by the High Court

in second appeal granting relief for specific

performance of the sale agreement deserve to

be quashed and set aside and is/are

accordingly quashed and set aside.

Consequently, 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.

………………………………….J. [M.R. SHAH]

Page 18 of 19 ………………………………….J. [C.T. RAVIKUMAR] NEW DELHI;

APRIL 28, 2023

Page 19 of 19