T. D. VIVEK KUMAR & ANRversusRANBIR CHAUDHARY

540                      [2023]REPORTS
               SUPREME COURT    4 S.C.R. 540                 [2023] 4 S.C.R.


A                       T. D. VIVEK KUMAR & ANR.
                                         v.
                            RANBIR CHAUDHARY
                      (Civil Appeal Nos. 2514-2516 of 2023)
B                                APRIL 28, 2023
                [M. R. SHAH AND C. T. RAVIKUMAR, JJ.]
             Specific Relief – Denial of – Appellants (original defendants),
      entered into a “sale agreement” with the respondent (original
      plaintiff) for the sale of a plot of land – A total amount of Rs. 2 lakh
C
      was paid as earnest money by the respondent – Respondent filed a
      civil suit seeking specific performance of the sale agreement and
      consequential relief of injunction – The suit was resisted by the
      appellants on the ground that as per the agreement to sell and on
      failure of the appellants to execute the sale deed, the respondent
D     shall be entitled to double the amount given as an advance – The
      trial court refused to pass a decree for specific performance of the
      sale agreement but decreed the suit for recovery of Rs. 4 lakhs, i.e.,
      double of the earnest money – First Appellate Court dismissed the
      appeal – High Court in second appeal granted the relief of specific
      performance – On appeal, held: As per clause 2 of the sale
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      agreement, 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 – Plaintiff is bound
      by the terms and conditions stipulated in the sale agreement – Appeal
      allowed – Judgment of High Court in second appeal set aside –
F     Judgment of trial Court affirmed by the First Appellate Court
      restored.
            P. D’Souza v. Shondrilo Naidu (2004) 6 SCC 649 :
            [2004] 3 Suppl. SCR 186; M. L. Devender Singh v.
            Syed Khaja (1973) 2 SCC 515 : [1974] 1 SCR 312 –
G           referred to.
                              Case Law Reference
      [2004] 3 Suppl. SCR 186       referred to           Para 3.3
      [1974] 1 SCR 312              referred to           Para 6.4
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                                        540
   T. D. VIVEK KUMAR & ANR. v. RANBIR CHAUDHARY                                   541


      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2514-                       A
2516 of 2023.
      From the Judgment and Order dated 26.10.2018 in RA No.149 of
2016 and dated 27.07.2016 in RSA No.596 of 2012 and XOBJ No.10 of
2012 of the High Court of Punjab & Haryana at Chandigarh.
      Guru Krishna Kumar, Sr. Adv., Amit Anand Tiwari, Ms. Saushriya              B
Havelia, Advs. for the Appellants.
      Daya Krishan Sharma, Rohit Vats, Shubham Rana, Vikrant Y. S.
Narula, Mrs. Sunita Sharma, Advs. for the Respondent.
       The Judgment of the Court was delivered by                                 C
       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.            D
       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                E
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 Division), Faridabad, seeking
specific performance of sale agreement and consequential relief of                F
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.                                                                      G

        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 earnest money paid by the plaintiff in accordance with
the contract i.e., sale agreement.                                                H
542             SUPREME COURT REPORTS                           [2023] 4 S.C.R.


A            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
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      second appeal on the findings recorded by the learned Trial Court and
      the First Appellate Court that the plaintiff wasready and willing to perform
      his part of the 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
C     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.
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             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 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
E     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
F     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
G     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
H     were certain factual errors and even the cross objection was rejected
   T. D. VIVEK KUMAR & ANR. v. RANBIR CHAUDHARY                                   543
                   [M. R. SHAH, J.]

without consideration; the High Court ought to have allowed the review            A
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.
                                                                                  B
     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          C
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   D
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 Court in the case of P. D’Souza Vs. Shondrilo             E
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            F
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
concurrent findings recorded by all the courts below, the High Court has          G
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
                                                                                  H
544             SUPREME COURT REPORTS                            [2023] 4 S.C.R.


A     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
B     concurrent findings of facts recorded by all the courts below 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
C     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 isrequiredto be noted that as such while
D     allowingthe second appeal and overturning the judgment(s) and order(s)
      passed by the learned Trial Court as well as 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
E     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
F            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 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
G
      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,
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   T. D. VIVEK KUMAR & ANR. v. RANBIR CHAUDHARY                                 545
                   [M. R. SHAH, J.]

on failure on the part of the seller to execute the sale deed within the        A
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 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
                                                                                B
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       C
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      D
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       E
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 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      F
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 rejecting the review application and the judgment      G
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 agreementdeserve to be quashed and
set aside and is/are accordingly quashed and set aside. Consequently,           H
546              SUPREME COURT REPORTS                                [2023] 4 S.C.R.


A     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 Choudhary, LCRAs)
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