ORDER :

Leave granted.

2. Heard learned senior counsel for the parties.

3. The defendants (the appellants-herein) are before us having succeeded before the trial court and in the first appellate court. The High Court has unfortunately invented a new method of decreeing the suit for specific performance in part only in respect to the payment of the earnest money of Rs.50,000/- (Rupees Fifty Thousand Only) and advance money of Rs.14,50,000/- (Rupees Fourteen Lakhs and Fifty Thousand Only) without reversing the findings of the trial court as well as that of the first appellate court on the vital aspects that the plaintiffs (respondents-herein) were not ready and willing to perform their part of the contract apart from that they did not had the balance consideration to purchase the disputed land within the time stipulated in the agreement.

4. The facts unfold that initially an agreement dated 13.01.1990 was entered into, in which it was agreed that for the sum of Rs.55,00,000/- (Rupees Fifty Five Lakhs only), defendants would sell the property in area 10.75 acres situated at village Mehmoodpura, Tehsil and District Ludhiana, State of Punjab, and on that day a sum of Rs.50,000/- (Rupees Fifty Thousand only) was paid as earnest money. Later on, at the time of payment of Rs.14,50,000/- (Rupees Fourteen Lakhs and Fifty Thousand only) on 31.1.1990 further agreement was entered into which was also reduced in writing in which it was stipulated that sale deed would be executed by 30.10.1990. It would be open to the plaintiffs to construct boundary wall between 24.4.1990 to 15.5.1990 at their own cost and the possession of the land would be delivered to the purchaser at the time of registration of the sale deed. This agreement has referred the prior agreement dated 13.1.1990 on which date a sum of Rs.50,000/- (Rupees Fifty Thousand Only) had been paid as earnest money. It was also stipulated that sale deeds would be registered in the name of anyone suggested by the plaintiffs and the land had been mortgaged with Punjab National Bank (for short, “the Bank”). It would be necessary for the defendants to clear the amount and to obtain No Objection Certificate from the Bank and only thereafter sale deed to be executed.

5. The plaintiffs filed suit for specific performance of the agreement to sale dated 31.1.1990 or in alternative, refund of earnest money with interest and damages were claimed. It was averred by the plaintiffs that they were ready and willing to purchase property and were present before the Sub Registrar on the date fixed i.e. 30.10.1990 with the balance amount whereas the defendants did not turn up to execute the sale deed. Plaintiffs served telegraphic notice but in futile.

6. The defendants in the written statement contended that plaintiffs had failed to perform their part of the agreement and as such the agreement stood cancelled and earnest money forfeited. Defendants were ready and willing to execute the sale deed and were present before the Sub-Registrar on 30.10.1990. Telegram was also sent to the plaintiffs but they were not ready and willing to perform their part of the contract. Plaintiffs did not raise the boundary wall as agreed and possession was with the defendants. The defendants got the property redeemed from the Banks in order to execute sale deed on 2.7.1990 and intimated the same to the plaintiffs vide legal notice (Ex. P-9) which was duly replied. The trial court held that the plaintiffs were not ready and willing to perform their part of the agreements dated 13.01.1990 and 31.1.1990. Defendants have cancelled the agreement and forfeited the earnest money. Thus, the plaintiffs could not be said to be entitled to specific performance of the aforesaid agreement. It was also found that the plaintiffs were not having the required money in order to purchase the property. The submissions urged as to demarcation and permission under Urban Land Ceiling Act were found to be untenable. Plaintiffs were not ready and willing