A plaintiff seeking specific performance must prove both readiness and willingness to perform the contract, failing which the court may order a refund of earnest money instead.

Judgment :

(Rajani Dubey, J.)

Challenge in this appeal is to the legality and validity of the judgment and decree dated 25.3.2017 passed by VI Additional District Judge, Bilaspur in Civil Suit No.25A/2013 whereby the suit filed by the appellant/plaintiff for specific performance of contract, declaration and permanent injunction has been partly decreed. (Parties shall hereinafter be referred to as per their description before the trial court.)

02. Case of the plaintiff, in brief, is that Nazul Sheet No.28, Plot No.71/6, area 436 sqft and adjacent Nazul Sheet No.28, Plot No.113/2, area 1519 sqft, on which a pacca house is constructed (hereinafter referred to as "suit property") is the self-acquired property of father of defendant namely Late M.A. Khan @ Abdul Haji Khan which was given to the defendant by her father through Will dated 5.3.2002 and based on that Will, the defendant got the suit property mutated in her name and acquired the ownership thereof. Since the plaintiff and the defendant were living in the same locality and they were duly acquainted with each other, the defendant being in need of money agreed to sell the suit property for Rs.10.50 lacs to the plaintiff. Thereafter, a sale deed dated 11.12.2006 was executed before the notary in presence of two witnesses and the defendant obtained Rs.6.50 lacs as advance from the plaintiff. As per the agreement, rest of the amount of Rs.4 lacs was to be paid to the defendant at the time of registry of the suit property. The sale deed was agreed to be registered within one year of the agreement. Despite the plaintiff's readiness and willingness to execute the registered sale deed when the defendant did not take any steps and kept on avoiding it, the plaintiff on 2.7.2008 sent a registered legal notice to the defendant. After receipt of the said notice, though the defendant again orally assured the plaintiff in presence of plaintiff's husband and others for execution of registry in her favour but later on evaded the same. The plaintiff then again sent a registered legal notice on 9.12.2009 to the defendant which was malafidely refused to be acknowledged by her. In fact, the defendant is trying to sell the suit property at higher rate to some other person and therefore, he is avoiding registry of sale deed in favour of the plaintiff. Hence this suit.

03. In her written statement, the defendant contended that the defendant never expressed her intention of selling the suit property as there was no such need and even otherwise she is not entitled to sell it all alone. No such agreement was ever executed with the plaintiff and the agreement in question is forged and fabricated. The defendant in reply to the legal notice has also stated that there is no such agreement between them and as such, no question of return of money etc. arises. Therefore, the present suit is liable to be dismissed with cost.

04. Based on the pleadings of the respective parties and the documents on record, the learned trial Court framed issues and after appreciation of oral and documentary evidence, partly decreed the suit of the plaintiff by the impugned judgment and decree holding that the plaintiff is entitled to receive Rs.6.50 lacs with interest @ 6% p.a. from the defendant. Hence this appeal.

05. Learned counsel for the appellant would submit that though the learned trial court acknowledged the validity and enforceability of the agreement between the parties and affirmed payment of Rs.6.50 lacs as earnest money by the plaintiff to the defendant and also there is evidence to show readiness and willingness on the part of the plaintiff to perform her part of contractual obligation, however, instead of decreeing the suit for specific performance, the learned trial Court directed the defendant to refund the earnest money with interest @ 6% p.a. only which is per se illegal and contrary to the material on record. The plaintiff sent two registered legal notices to the defendant dated 2.7.2008 and 9.12.2009 demandin