J.R. MIDHA, J.

1. The appellant has challenged the judgment and decree for specific performance passed by the learned Trial Court. The appellant was the defendant and respondent was the plaintiff before the learned Trial Court. For the sake of convenience, the appellant and the respondent shall be referred to as per their ranks in the plaint as the defendant and plaintiff respectively.

2. Plaintiff‘s case – The plaintiff instituted a suit for specific performance, declaration and permanent injunction against the defendant on 21st August, 1997. The case set-up by the plaintiff in the plaint is as under:-

2.1 On 5th July, 1996, the plaintiff entered into an agreement with the defendant to purchase the property bearing No.53, New Krishna Nagar, Delhi – 110051 built over land admeasuring 133.25 Sq. yds., hereinafter referred to as the suit property‘ for a total sale consideration of 13,95,000/-. The plaintiff paid a sum of 1,50,000/-to the defendant as earnest money which was recorded in the agreement dated 5th July, 1996.

2.2 On 22nd August, 1996, the defendant in continuation of the agreement dated 5July, 1996, executed another agreement relating to the suit property in favour of the plaintiff on the same terms and conditions except that further payment of 50,000/- to be made by the plaintiff to the defendant.

2.3 On 22 August, 1996, the plaintiff made further payment of 1,70,000/-(instead of 50,000/-mentioned in the agreement dated 22 August, 1996) to the defendant who extended the date of the agreement up to 17 October, 1996 which was recorded by the defendant on the back of page 1 of the agreement dated 22 August, 1996.

2.4 On 16th October, 1996, the defendant extended the date of completion of the agreement up 30th October, 1996 to which was recorded by the defendant in his own hand writing on the back of page 1 of the agreement dated 22 August, 1996.

2.5 The plaintiff informed the defendant to be present in the office of Sub-Registrar for execution and registration of the sale deed on 30 October, 1996.

2.6 On 30 October, 1996 at 10:00 am, the plaintiff visited the office of the Sub-Registrar along with the balance sale consideration, partly in the form of bank drafts and partly in cash and waited for the defendant throughout the day. The plaintiff obtained the receipt about her presence from the office of the Sub Registrar on 30th October, 1996.

2.7 The plaintiff had been requesting the defendant to receive the balance sale consideration, execute and register the sale deed, and hand over the vacant and peaceful possession of the suit property.

2.8 The defendant had been falsely promising to complete the sale in terms of the agreement to sell but later his intention became dishonest and he started giving threats to the plaintiff and her family members.

2.9 On 23rd June, 1997, the husband of the plaintiff lodged a complaint with the SHO, Police Station, Krishna Nagar.

2.10 On 31st July, 1997, the defendant issued a legal notice to the plaintiff wrongly repudiating the agreement to sell and falsely contending that the agreement stood cancelled and the earnest money stood forfeited.

2.11 The plaintiff has always been ready and willing and is still ready and willing to perform her part of the contract.

2.12 The defendant has no right to cancel the agreement or to forfeit the earnest money.

3. Defendant‘s case – The defence set-up by the defendant in the written statement is as under:-

3.1 The defendant agreed to sell the suit property to the plaintiff vide agreement to sell dated 5th July, 1996 as he had to simultaneously purchase another property for his residence from the sale proceeds of the suit property. The defendant entered into an agreement dated 7th September, 1996 to purchase property No.F-1, Radhey Puri, Khureji Khas, Delhi-51 for a total consideration of 10,10,000/-against which he paid 1,00,000/-out of the earnest money received by him from the plaintiff. As such, the time was of the essence of the agreement d