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M/s. Twenty First Century Resorts through its partners Rajneesh Vohra & Others v/s Shamsher Singh

    Civil Suit No. 131 of 2012

    Decided On, 17 May 2016

    At, High Court of Himachal Pradesh

    By, THE HONOURABLE MR. JUSTICE P.S. RANA

    For the Plaintiffs: Ajay Kumar, Sr. Advocate with Dheeraj Vashista, Advocate. For the Defendant: Debender Ghosh, Advocate.



Judgment Text

1. Plaintiff M/s Twenty First Century Resorts filed suit for specific performance of contract of sale dated 10.7.2006 and for possession of land comprised in Khata Khatauni No. 126/175 (Kitas 47) situated at Up Mohal Simsa Phatti Nasogi Kothi Manali Tehsil Manali District Kullu (H.P.) measuring 00-45-35 Hectares. Consequential relief of permanent prohibitory injunction restraining the defendant from transferring or alienating or changing the nature or creating any encumbrance on suit land also sought. It is pleaded that total sale consideration amount was settled as Rs.15520000/- (Rupees one crore fifty five lac twenty thousand) vide contract dated 10.7.2006 placed on record. It is pleaded that defendant received a sum of Rs.40 lac (Rupees forty lac) as earnest money from plaintiffs. It is pleaded that sale deed was to be executed by defendant on or before 31.12.2006. It is pleaded that it was agreed that sale deed would be executed in favour of plaintiffs after obtaining necessary permission under Section 118 of H.P. Tenancy and Land Reforms Act 1972. It is pleaded that it was agreed that defendant would partition the suit land or would obtain consent letters/no objection certificates from other co-sharers. It is pleaded that thereafter supplementary contract dated 19.12.2006 was executed inter se parties and time for registration of sale deed was extended till 31.3.2007. It is pleaded that thereafter another supplementary contract dated 29.3.2007 was executed inter se parties and time for registration of sale deed was extended upto 31.7.2007. It is pleaded that thereafter another supplementary contract dated 30.7.2007 was executed inter se parties and time for registration of sale deed was extended till 31.1.2008. It is pleaded that thereafter on 12.12.2009 defendant received a sum of Rs.19 lacs (Rupees nineteen lac) from plaintiff towards additional earnest money of sale consideration amount and signed the receipt placed on record. It is pleaded that thereafter defendant in March 2010 received a sum of Rs.20 lacs (Rupees twenty lac) on account of additional earnest money from plaintiffs. It is pleaded that defendant has received total sum of Rs.79 lac (Rupees seventy lac) till March 2010 from plaintiffs as earnest money of sale. It is pleaded that defendant did not partition the suit land as per contract and also did not obtain no objection/consent letters from other co-owners. It is pleaded that thereafter co-plaintiff No. 1 decided to assign the right under contract of sale in favour of co-plaintiff No. 3 Shri Vikas Sohal. It is pleaded that thereafter notice dated 14.7.2012 was also served upon defendant. Prayer for decree of the suit as mentioned in relief clause of plaint sought.

2. Per contra written statement filed on behalf of defendant pleaded therein that suit of plaintiff in present form is not maintainable. It is pleaded that time is essence of contract in present civil suit and plaintiffs are not entitled for relief of specific performance of contract due to their own act of omission and commission and also negligence. It is pleaded that permission under Section 118 of H.P. Tenancy and Land Reforms Act 1972 for purchase of suit land not sought till date by plaintiffs as per terms and conditions of contract. It is pleaded that plaintiffs Nos. 1 and 2 have no locus standi to seek the relief under Specific Relief Act 1963 in favour of co-plaintiff No. 3 with whom there is no privity of contract. It is pleaded that present suit is barred by limitation. It is denied that defendant had received a sum of Rs.79 lac (Rupees seventy nine lac) upto March 2010 as earnest money. It is pleaded that defendant was always ready and willing to perform his part of contract for registration of sale deed. It is pleaded that co-plaintiffs Nos. 1 and 2 did not perform their part of contract and they are not legally entitled to seek specific performance of contract executed between plaintiff No.1 and defendant. It is pleaded that plaintiff No. 1 could not assign its right in contract to co-plaintiff No. 3 after a lapse of more than six years and after the expiry of date of limitation. It is pleaded that plaintiff No.1 could not purchase the land without getting permission from the Government as per provisions of Section 118 of H.P. Tenancy and Land Reforms Act 1972. It is pleaded that plaintiffs are not entitled for specific performance of contract and prayer for dismissal of suit sought.

3. Plaintiffs also filed replication and re-asserted the allegations mentioned in the plaint.

4. As per pleadings of parties following issues were framed on 31.10.2013:

1. Whether plaintiffs are entitled for specific performance of agreement of sale dated 10.7.2006? …OPP

2. In case plaintiffs are not found entitled to the relief of specific performance whether in the alternative they are entitled for relief of damages/compensation as claimed and if so to what amount? ….OPP

3. Whether suit of the plaintiffs is not maintainable in its present form, as alleged and if so to what effect? …..OPD

4. Whether plaintiffs are not entitled for relief of specific performance due to their own acts of omission and commission? OPD

5. Whether time was the essence of contract and if so its effect? ….OPD

6. Whether plaintiffs Nos. 1 and 2 have no locus standi to seek specific performance of the agreement in favour of plaintiff No. 3 with whom there is no privity of contract and who is stranger to the same? ….OPD

7. Whether the present suit is misconceived? ….OPD

8. Relief.

5. Court heard learned counsel appearing for the plaintiffs and learned Advocate appearing on behalf of defendant and also perused the entire record carefully.

6. Findings on Issue No.1 with reasons.

6.1 PW1 Rajnish Vohra has stated that plaintiff No.1 is a partnership firm and plaintiffs Nos. 2 and 3 are its partners. He has stated that he has brought the original form ‘C’ regarding the registration of firm and true copy is Ext.PW1/A. He has stated that Ext.PW1/B is certified copy of list of partners of firm. He has stated that plaintiffs have entered into an agreement for purchase of land with defendant in July 2006. He has stated that agreement was with respect to purchase of 5 bighas 12 biswas of land for sale consideration amount of Rs.15520000/- (Rupees one crore fifty five lac twenty thousand). He has stated that original agreement of sale is Ext.PW1/C. He has stated that agreement was signed by parties. He has stated that plaintiffs firm paid a sum of Rs.40 lacs (Rupees forty lacs) as earnest money and balance sale consideration amount was to be paid at the time of registration of sale deed. He has stated that sale deed was to be executed before 31.12.2006. He has stated that as per agreement defendant was either to get the consent of co-sharers or get the land partitioned. He has stated that no objection certificates from other co-owners were to be obtained by defendant as required under Section 118 of H.P. Tenancy and Land Reforms Act 1972. He has stated that defendant did not obtain any no objection certificate from co-sharers in order to get the land partitioned. He has stated that defendant sought time for extension of contract and supplementary contract was executed inter se the parties. He has stated that plaintiff had paid a sum of Rs. 19 lac (Rupees nineteen lac) to defendant in the month of December 2009 by way of original receipt Ext.PW1/G. He has stated that in the month of March 2010 defendant asked for more money on account of marriage of his daughter and he received a sum of Rs.20 lac (Rupees twenty lac). He has stated that till date plaintiffs have paid a sum of Rs.79 lac (Rupees seventy nine lac) to defendant. He has stated that legal notice was also issued to defendant Ext.PW1/H. He has stated that Ext.PW1/J is original postal receipt and Ext.PW1/K is original acknowledgement of notice. He has stated that firm has nominated Vikas Sohal co-plaintiff No. 3 as nominee for purchase of land. He has stated that Vikas Sohal is resident of Himachal Pradesh and is agriculturist. He has stated that plaintiffs are still ready and willing to perform their part of contract. He has stated that plaintiffs are ready to purchase the land on payment of balance sale consideration amount. He has stated that firm came into existence in 2006 and firm was registered later on. He has admitted that partnership deed was executed subsequent to the execution of agreement Ext.PW1/C. He has stated that plaintiffs did not apply for permission to purchase the land from State Government. He has stated that last extension for registration of sale deed was given by way of supplementary contract Ext.PW1/F and sale deed was to be executed on or before 31.1.2008. He has stated that thereafter no supplementary contract was executed for extension of time for registration of sale deed. He has stated that plaintiffs did not issue any notice to defendant for obtaining no objection certificate from land owners or to get the land partitioned. He has stated that plaintiffs did not issue any letter in writing to defendant for assignment of contract in favour of Vikas Sohal co-plaintiff No.3. He has denied suggestion that plaintiffs were not ready and willing to perform their part of contact.

6.2 PW2 K.G. Thakur has stated that he is practising Advocate at Kullu and he is also Notary. He has stated that he had seen original documents Ext.PW1/C, Ext.PW1/D, Ext.PW1/E and Ext.PW1/F. He has stated that all these agreements were attested by him. He identified his signatures and he has also brought the original Notary registers and stated that entries were recorded in the original registers. In cross examination he has stated that he is working as Notary since 1999. He has stated that he only attested the documents, when same were brought to him by parties.

6.3. PW3 Lekh Ram has stated that he is practising Advocate since 2002 at Manali Sub Division and he has seen original agreement Ext.PW1/C and agreement Ext.PW1/E. He has stated that both agreements drafted by him under instructions of parties and he had signed these agreements. In cross examination he has stated that agreements were drafted under instructions of defendant Shamsher Singh. He has stated that both buyer and seller came to him for drafting the supplementary agreements. He has denied suggestion that he did not draft the documents.

6.4. PW4 Padam Singh Assistant in the office of District Registrar of Firms and Societies Panchkula has stated that he has brought the summoned record. He has stated that plaintiff No. 1 is a registered partnership firm. He has stated that Ext.PW1/A is true copy of certificate regarding registration of firm. In cross examination he has stated that firm was registered on 23.7.2012. He has stated that there is no mention of existence of firm prior to 23.7.2012.

6.5. PW5 Gaurav Sohal has stated that he has seen original agreements Ext.PW1/C to Ext.PW1/E. He has stated that documents were executed by parties in his presence. He has stated that second witness has also signed the documents in his presence. He has stated that co-plaintiff No. 3 is his real elder brother. He has stated that co-plaintiff No. 2 is personally known to him. He has stated that he became witness at the instance of parties.

6.6. PW6 Vikas Sohal has stated that he is one of the partners of co-plaintiff No.1 i.e. M/s Twenty First Century Resorts. He has stated that firm is duly registered with Registrar of Firms at Panchkula. He has stated that in July 2006 plaintiff No. 1 firm entered into an agreement for purchase of 5 bighas 10 biswas of land from defendant vide agreement Ext.PW1/E. He has stated that in beginning sum of Rs.40 lac (Rupees forty lac) given as earnest money to defendant. He has stated that subsequently payment to the tune of Rs.19 lacs (Rupees nineteen lac) and Rs.20 lac (Rupees twenty lac) total Rs. 79 lac (Rupees seventy nine lac) paid by plaintiffs to defendant. He has stated that supplementary agreements Ext.PW1/D to Ext.PW1/F were also executed between the parties. He has stated that he is bonafide resident of Himachal Pradesh and is also agriculturist. He has stated that plaintiffs are still willing to perform their part of contract. He has stated that defendant did not obtain consent of other co-owners and further stated that defendant also did not get the land partitioned. He has stated that being agriculturist he is eligible to buy the land in Himachal Pradesh. He has stated that out of total sale consideration of Rs.15520000/- (Rupees one crore fifty five lac twenty thousand) plaintiffs have paid an amount of Rs.79 lac (Rupees seventy nine lac) to defendant. In cross examination he has stated that partnership firm was registered in the year 2012. He has denied suggestion that plaintiffs did not pay Rs. 79 lacs (Rupees seventy nine lac) as earnest money. He has denied suggestion that plaintiff had paid only Rs.59 lac(Rupees fifty nine lac) to defendant. He has denied suggestion that plaintiffs are not ready and willing to perform their part of contract. He has denied suggestion that supplementary agreements were executed just to prolong the matter. He has denied suggestion that plaintiffs were not willing to perform their part of contract.

6.7. DW1 Shamsher Singh has stated that land is situated in Up Mohal Simsa Phatti Nasogi Kothi Manali Tehsil Manali District Kullu H.P. and he entered into an agreement with plaintiffs. He has stated that sale deed was to be executed in the month of December 2006. He has stated that plaintiffs firm did not execute the sale deed despite repeated requests. He has stated that plaintiffs got extension of time for registration of sale deed and supplementary agreements were executed. He has stated that last supplementary agreement was executed on 30.7.2007. He has stated that plaintiff approached to him with proposal that sale deed would be registered in favour of co-plaintiff No. 3 but he did not agree to the proposal. He has stated that considerable time has elpased and now he is not ready and willing to register sale deed in favour of plaintiffs firm. In cross examination he has stated that agreement was executed relating to 5 bighas 11 biswas of land. He has stated that there are 3-4 sharers in suit land. He has stated that he is under graduate. He has stated that agreement bears his signatures and also admitted that receipt Ext.PW1/G also bears his signatures. He has stated that he did not obtain no objection certificate from co-sharers to sell the land in favour of plaintiffs firm. He has stated that he did not send any notice to plaintiffs firm to come forward for registration of sale deed. Self stated that he orally requested the plaintiffs to get the sale deed registered many time. He has stated that acknowledgment Ext.PW1/K bears his signatures. He has stated that in Himachal Pradesh non-agriculturist is not eligible to purchase the land without permission of the competent authority. He has stated that he did not write to plaintiffs to obtain such permission from competent authority.

7. Plaintiffs did not adduce any evidence in rebuttal. Learned Advocate appearing on behalf of plaintiffs has given statement in writing before Court on dated 27.10.2014 that no evidence in rebuttal is intended to be produced by plaintiffs. Statement of learned Advocate is placed on record.

8. Following documents filed. (1) Ext.PW1/A is acknowledgment of registration of firm M/s Twenty First Century Resorts by District Registrar of Firms Panchakula Haryana dated 23.7.2012. (2) Ext.PW1/B is the register of firms wherein M/s Twenty First Century Resorts registered on 23.7.2012. (3) Ext.PW1/C is the original contract of sale dated 10.7.2006. (4) Ext.PW1/D is the supplementary contract dated 19.12.2006 for extension of time for registration of sale deed till 31.3.2007. (5) Ext.PW1/E is supplementary contract dated 29.3.2007 for extension of date for registration of sale deed till 31.7.2007. (6) Ext.PW1/F is also supplementary contract dated 30.7.2007 wherein date for registration of sale deed was extended upto 31.1.2008. (7) Ext.PW1/G is receipt wherein Shamsher Singh defendant acknowledged the receipt of Rs.19 lac (Rupees nineteen lac) in cash from Rajnish Vohra partner of M/s Twenty First Century Resorts. There is recital in receipt that terms and conditions of contract would remain same as agreed in earlier contracts. (8) Ext.PX is the copy of Missal Hakiat Bandobast for the year 2001-02 relating to suit property. (9) Ext.PW6/A is agriculture certificate issued by Naib Tehsildar Kullu dated 18.5.2010 in favour of Vikas Sohal co-plaintiff No.3. (10) Ext.PW1/H is legal notice given by plaintiffs to the defendant dated 14.7.2012 for transfer of suit land by way of sale in favour of plaintiffs. (11) Ext.PW1/K is acknowledgment receipt issued by Postal and Telegraph Department. (12) Ext.PW2/A is extract of register. (13) Ext.DX is partnership deed dated 11.7.2006 executed between Rajnish Vohra and Vikas Sohal.

9. Submission of learned Advocate appearing on behalf of plaintiffs that plaintiffs are entitled for relief of specific performance for contract of sale dated 10.7.2006 is rejected being devoid of any force for reasons hereinafter mentioned. It is proved on record that original contract of sale Ext.PW1/C was executed inter se the parties on dated 10.7.2006. It is proved on record that there were twenty terms and conditions in original contract dated 10.7.2006. Terms and conditions of original contract dated 10.7.2006 are quoted in toto. (1) The buyer has agreed to buy the said property and seller has agreed to sell the same for a total sale consideration of Rs.15520000/- (Rupees one Crore fifty five lacs and twenty thousand only). (2) The seller represents that they have a marketable title and are competent to transfer the property to buyer free of any defects in title. The buyer will satisfy itself in respect of the title and notify seller of any perceived defects before 31.12.2006. The seller will clarify or correct such defects before receiving additional payments. (3)The seller assured that he has clear title of the property mentioned above. He undertakes that in case any defect is found the seller shall be held responsible and liable to indemnify the losses suffered by the buyer on this account. (4) The seller shall deliver the copy(s) of title deeds of the said property in his possession or power for inspection thereof. (5) All liabilities in respect of the said property on account of property taxes, ground rents, land revenue, payable till the completion date shall be to the account of and borne by the seller and thereafter by the buyer. (6) Buyer shall obtain all the necessary No Objection Certificates/permissions from the State Government and/or any other authority as may be required and which shall be of concern for transfer of ownership right with respect to the said property to the buyer. (7) The schedule of the payment of the consideration shall be as follows. (i) The seller has paid Advance/earnest money Rs.900000/- (Rupees nine lacs only) vide D.D. No. 306108 and Rs.900000/- (Rupees nine lacs only) vide D.D. No. 306109 and Rs.200000/- (Rupees two lacs only) vide D.D. No. 306110 of State of Hyderabad of dated 8.7.2006 and Rs.2000000/- (Rupees twenty lacs only) in cash. (ii) The Balance payment of the above described land will be paid last by 31.12.2006. (8) It is agreed the above payment schedule shall not be changed in any circumstances. The payment would not delay on any account except when a defect in seller title and right to sell is found to exist. (9) In case buyer fails to fulfill its commitment under the agreement within the sipulated scheduled as mentioned hereinabove advance earnest amount given as advance/earnest money shall stand forfeited if the buyer hold permission for purchasing of land from the Govt. of H.P. 31.12.2006 at the same moments the seller fails and refused to execute and registered sale deed in favour of the buyer in that event the buyer shall have right and authority to file specific suit of performance. (10) The seller agreed to hand over existing boundary wall on the plot to the buyer. (11) The sale shall be completed by 31.12.2006. (12) It is made clear that in case required permission/NOC is refused by the State Government the buyer shall assign any other person/natural or juristic capable of purchasing the said property who shall then purchase the said property from the seller and shall execute all necessary documents to complete the transaction. (13) The seller agrees to sell the said property to any of the assigns of the buyer at the same consideration as herein. In case the buyer remains unsuccessful in obtaining the necessary permission/no objection certificates from the State government in spite of its best efforts. (14) The seller agrees that at no time till the completion date it shall negotiate with any other person interested in the said property to sell the same to such person. (15) The seller shall hand over vacant and peaceful possession of said property to the buyer at adjoining land of Sh. Kamal Chand in north side in khasra No. 1287, 1285 at the time of signing of this agreement. (16) Neither party shall be liable to the other in any action or claim for consequential or special damages, loss of profits, loss of opportunity, or loss of use and any protection against liability for losses of damages afforded by any individual or entity by these terms shall apply whether the action in which recovery of damages is sought is based on contract, tort (Including sole, concurrent or other negligence and strict liability of a protected individual or entity), statute or otherwise. To the extent permitted by law any statutory remedies that are inconsistent with these terms are waived. (17) The agreement shall be effective from the date above mentioned. (18) The invalidity or unenforceability of any particular provision of this agreement or portion thereof shall not effect the other provisions or portions thereof and this agreement shall be construed in all respects as if any such invalid or unenforceable provisions or portions thereof omitted and this agreement shall remain in full force and effect. (19) All the expenses towards registration of sale, stamp duty payable etc on sale deed shall be borne by the buyer. (20) Stamp duty payable on this document and any other documents and the registration charges in respect thereof will be paid by the buyer and each party will bear and pay his advocates fees and other expenses incurred by him.

10. As per original contract of sale the sale deed was to be executed before 31.12.2006. It is proved on record that thereafter by way of supplementary contract executed inter se parties Ext.PW1/D date for registration of sale deed was extended till 31.3.2007 upon same terms and conditions of original contract dated 10.7.2006. It is proved on record that thereafter supplementary contract Ext.PW1/E was executed inter se parties wherein time for registration of sale deed was extended till 31.7.2007 upon same terms and conditions of original contract dated 10.7.2006. It is proved on record that thereafter vide supplementary agreement Ext.PW1/F time for registration of sale deed was extended till 31.1.2008. It is proved on record that original contract Ext.PW1/C is contingent contract and there was condition No. 6 in original contract that buyer would obtain all necessary no objection certificate/permission from State Government or any other authority as may be required. It was also agreed inter se the parties as per condition No. 13 that in case buyer would remain unsuccessful to obtain necessary permission/no objection certificate from State Government inspite of its best efforts then buyer would sell the said property to any of assignee of buyer at the same consideration amount mentioned in original contract. It is proved on record that buyer did not obtain permission from State Government to purchase the land under Section 118 of H.P. Tenancy and Land Reforms Act 1972. It is proved on record that vide supplementary contract Ext.PW1/F registration of sale deed was to be executed on or before 31.1.2008. It is proved on record that time is essence of contract in present case. As per original contract and subsequent contracts executed inter se the parties registration of sale deed was to be executed on or before 31.1.2008. It is held that cause of action to plaintiffs against the defendant for registration of sale deed occurred w.e.f. 31.1.2008 in present case. As per Article 54 and Schedule annexed under Limitation Act 1963 suit for specific performance of contract could be filed within three years from the date fixed for performance of contract. In present case date is specifically finally fixed for performance of contract as 31.1.2008. It is held that plaintiffs did not file the present suit within three years w.e.f. 31.1.2008. Plaintiffs have filed present suit on 11.12.2012 after expiry of three years from the date fixed for performance of contract. As per Section 3 of Limitation Act 1963 every suit instituted, appeal preferred and application made after prescribed period shall be dismissed although limitation has not been set up as a defence. Hence it is held that relief to plaintiffs for specific performance of contract of sale dated 10.7.2006 is barred under law of Limitation Act 1963.

11. Submission of learned Advocate appearing on behalf of plaintiffs that in view of receipt Ext.PW1/G dated 12.12.2009 limitation for registration of sale deed will start from 12.12.2009 is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused receipt Ext.PW1/G placed on record. Contents of receipt Ext.PW1/G are quoted in toto:

Receipt dated 12.12.2009

I, Shamsher Singh son of late Shri Pratap Chand resident of village Rangri P.O. Manali Tehsil Manali District Kullu has received a sum of Rs.1900000/- (Rupees nineteen lacs only) in cash from Sh.Rajneesh Vohra partner in M/s 21st Century Resorts having its head office at SCO 8, Sector 5, Panchkula (Haryana) against the land deal between us as per the sale agreement dated 10.7.2006.

The said amount is in addition to the amount paid earlier in the same deal as mentioned in the earlier agreements. The other terms and conditions remains the same as agreed in the earlier agreements.

12.12.2009 Sd/-(Shamsher Singh)

Paid by Sh.Rajneesh Vohra Received by.

Sd/-

12. It is held that in receipt Ext.PW1/G the defendant has simply acknowledged the receipt of additional earnest money to the tune of Rs.1900000/- (Rupees nineteen lac). It is held that defendant in receipt Ext.PW1/G did not extend the period of limitation for registration of sale deed. On the contrary there is specific recital in receipt Ext.PW1/G that there would be no change in terms and conditions of earlier agreements. There is no recital in receipt Ext.PW1/G that date of registration of sale deed is extended. It is held that vide receipt Ext.PW1/G defendant did not extend date of registration of sale deed dated 31.1.2008. It is held that time is essence of contract relating to sale deed in present case. See 2015(8) SCC 695 title Padma Kumari vs. Dasayyan. See AIR 1980 SC 1786 title Bal Krishan vs. Bhagwan Dass. See AIR 1996 SC 116 title N.P.Thirughanam vs. R. Jagan Mohan Rao. See AIR 2016 Chhatisgarh 73 title Daya Ram Soni vs. Smt. Gyarsi Bai Khandelwal and others. See AIR 2003 Caucutta 263 title M/s Cllan International Private Limited vs. Ashok. Even sale deed cannot be registered in favour of co-plaintiff No. 3 in view of bar of M/s Twenty First Century Resort because assignee would not get better title than assignor. Even PW1 Rajneesh Vohra co-plaintiff No. 1 has admitted when he appeared in witness box that last extension of registration of sale deed was given by way of supplementary contract Ext.PW1/F till 31.1.2008 and thereafter no extension of time for registration of sale deed was given. It is well settled law that facts admitted need not to be proved under Section 58 of Indian Evidence Act 1872. In view of above stated facts and case law cited supra issue No. 1 is decided against plaintiffs.

Findings on Issue No.2 with reasons

13. Submission of learned Advocate appearing on behalf of plaintiffs that in alternative plaintiffs are legally entitled for relief of damages/compensation as claimed in suit is partly answered in yes and partly answered in no. In present case defendant has admitted in original contract of sale that he has received earnest money to the tune of Rs.900000/- (Rupees nine lac) vide DD No. 306108, also received sum of Rs.900000/- (Rupees nine lac only) vide DD No. 306109 and also Rs.200000/- (Rupees two lac only) vide DD No. 306110 dated 8.7.2006 and also received Rs.20 lac (Rupees twenty lac) in cash. Defendant has admitted in original contract of sale that at the time of execution of orignal sale contract defendant has received amount of Rs. 40 lac (Rupees forty lac). It is also proved on record that thereafter vide receipt Ext.PW1/G placed on record defendant has admitted receipt of additional amount of Rs.19 lacs (Rupees nineteen lac) from the plaintiffs. It is held that by way of original contract of sale Ext.PW1/C dated 10.7.2006 and by way of receipt Ext.PW1/G dated 12.12.2009 defendant has received Rs.59 lacs (Rupees fifty nine lac) as earnest money from plaintiffs. Court has also perused Nakal Missal Hakiyat Ext.PX placed on record. There is recital in Nakal Missal Hakiyat Ext.PX placed on record that vide mutation No. 123 the ownership to the extent of 3/27 shares was transferred in the names of (1) Manorma Devi, (2) Shakuntla Devi, (3) Damyanti Devi from the shares of Shamsher Singh and Surender Chand sons of Partap Chand. Seller has concealed these facts from buyer at the time of execution of original contract of sale. Hence it is held that buyers are not legally competent to forfeit the earnest money as mentioned in original contract. It is held that M/s Twenty first Century Resorts co-plaintiff No.1 through its partners would legally entitle for recovery of earnest money i.e. Rs.59 lacs from the defendant along with interest at the rate of 6% per annum from the date of institution of suit till realization.

14. Documents Ext.PW1/C, Ext.PW1/D, Ext.PW1/E, Ext.PW1/F are proved by way of testimony of PW2 K.G. Thakur Advocate. Documents Ext.PW1/C and Ext.PW1/F proved by way of testimony of PW3 Lekh Ram Advocate. Testimonies of PW2 and Ext.PW3 are trustworty reliable and inspire confidence of Court.

15. Submission of learned Advocate appearing on behalf of plaintiffs that defendant received Rs. Twenty lac in the month of March 2010 from plaintiffs on the occasion of marriage of his daughter is rejected being devoid of any force for the reasons hereinafter mentioned. There is no receipt placed on record signed by defendant wherein it is proved that defendant has received Rs.Twenty lac in the month of March 2010 from plaintiffs. Plaintiffs did not adduce any independent witness in order to prove that defendant has received Rs.twenty lac from plaintiffs in the month of March 2010. Hence plea of plaintiffs is rejected on the concept of ipse dixit (An assertion made without proof). Issue No. 2 is decided accordingly partly in favour of plaintiffs.

Findings on Issue No.3 with reasons

16. Submission of learned Advocate appearing on behalf of defendant that suit of plaintiffs is not maintainable in present form is partly answered in yes and partly answered in no. It is held that plaintiffs are not entitled for relief of specific performance of contract of sale dated 10.7.2006 because time is essence of contract in present case. As per original contract and subsequent contracts executed inter se the parties sale deed was to be registered on or before 31.1.2008. Present civil suit not filed within three years from the date of cause of action w.e.f. 31.1.2008. It is held that as defendant has acknowledged the receipt of advance earnest money to the tune of Rs.19 lac (Rupees nineteen lac) on 12.12.2009 hence suit for recovery of earnest money is filed within three years w.e.f. 12.12.2009.It is held that defendant has himself extended the period for recovery of earnest money by way of signing receipt Ext.PW1/G relating to earnest money. Issue No. 3 is decided accordingly.

Findings on Issue No.4 with reasons

17. Submission of learned Advocate appearing on behalf of defendant that plaintiffs are not entitled for relief of specific performance due to their own acts of omission and commission is decided accordingly. It is held that plaintiffs are not entitled for relief of registration of sale deed on the basis of original contract dated 10.7.2006 and on the basis of subsequent contracts Ext.PW1/D, Ext.PW1/E and Ext.PW1/F. It is held that plaintiffs are entitled for recovery of earnest money to the tune of Rs.59 lacs (Rupees fifty nine lac) in view of receipt Ext.PW1/G dated 12.12.2009 executed inter se the parties and in view of fact that defendant has admitted his signatures upon receipt Ext.PW1/G dated 12.12.2009 in process of admission and denial of documents in civil suit.

Issue No. 4 is decided accordingly.

Findings on Issue No.5 with reasons

18. Submission of learned Advocate appearin

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g on behalf of defendant that time is essence of contract in present case is accepted for the reasons hereinafter mentioned. It is proved on record that in original contract Ext.PW1/A there is specific condition No. 11 that sale deed would be completed on or before 31.12.2006. It is proved on record that thereafter time for registration of sale deed was extended by way of supplementary contracts Ext.PW1/D, Ext.PW1/E and Ext.PW1/F till 31.1.2008. It is proved on record that thereafter time for registration of sale deed was not extended by parties and it is also proved on record that vide receipt Ext.PW1/G dated 12.12.2009 time for registration of sale deed was not extended. On the contrary there is recital in receipt Ext.PW1/G that other terms and conditions of contract would remain same as agreed by parties in earlier contract. Hence it is held that time is essence of contract in present case for registration of sale deed. Issue No. 5 is decided accordingly. Findings on issue No.6 with reasons 19. Submission of learned Advocate appearing on behalf of defendant that plaintiffs Nos. 1 and 2 have no locus standi to seek specific performance of contract in favour of co-plaintiff No. 3 with whom there is no privity of contract and who is stranger to the same is decided accordingly for the reasons hereinafter mentioned. Court has carefully perused original contract Ext.PW1/C placed on record dated 10.7.2006. As per condition No. 13 of contract dated 10.7.2006 both parties have agreed that seller would sell the suit property to any of assignee of buyer at the same consideration in case buyer remains unsuccessful in obtaining no objection certificate/necessary permission from State Government inspite of its best efforts. Defendant has himself admitted in original contract that he would register sale deed at the same rate to any of assignee of buyer. It is held that even sale deed cannot be executed in favour of assignee of buyer because time for registration of sale deed is essence of contract in present case. Plaintiffs did not file suit within three years w.e.f. 31.1.2008 as required under Article 54 of Limitation Act 1963. Assignor cannot assign better title to assignee than himself. Issue No. 6 is decided accordingly. Findings on issue No. 7 with reasons 20. Submission of learned Advocate appearing on behalf of defendant that present suit is misconceived is rejected being devoid of any force for the reasons hereinafter mentioned. Plaintiffs have filed the suit on the basis of contract of sale Ext.PW1/C and in alternative plaintiffs have also sought relief of recovery of amount. It is held that plaintiffs are legally entitled for recovery of Rs.59 lacs (Rupees fifty nine lac) from the defendant. Defendant is under legal obligation to return Rs.59 lac (Rupees fifty nine lac) to plaintiffs. Issue No. 7 is decided accordingly. Relief 21. In view of above findings civil suit is partly decreed. Decree for recovery of earnest money to the tune of Rs.59 lac (Rupees fifty nine lac) is granted in favour of M/s Twenty First Century Resorts and against the defendant. Interest at the rate of 6% per annum is also granted from date of institution of suit till realization of amount to the tune of Rs.59 lacs (Rupees fifty nine lac). Other reliefs decline in the ends of justice. Original contract Ext.PW1/C dated 10.7.2006 and receipt Ext.PW1/G dated 12.12.2009 will form part and parcel of decree sheet. Parties are left to bear their own costs. Decree is passed accordingly. Learned Registrar Judicial will prepare decree sheet in accordance with law forthwith. Suit stands disposed of. Pending miscellaneous application(s) if any also stands disposed of.
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