Tarlok Singh Chauhan, J.

The plaintiff has filed the instant suit for possession of property bearing No. 169, Sector 11-A, Chandigarh by way of specific performance of agreement to sell dated 20th June, 1995 and in the alternative for recovery of Rs.10,00,000/- (Rupees Ten Lacs) as damages and refund of Rs. 3,20,000/- (Rupees Three Lacs and Twenty Thousand) deposited as earnest money and for special costs.

2. The suit was initially filed at Chandigarh but was transferred to this Court by the orders of the Hon’ble Supreme Court.

The facts of the case of the plaintiff as set out in the plaint may be noticed:

A. The plaintiff is a resident of Chandigarh and had in the first week of June, 1995 appointed Sh. Amarjit S. Sethi, Property Dealer, SCO No. 345-46, Sector 35-B, Chandigarh as his broker and agent for the purchase of property in Chandigarh.

B. The plaintiff was informed by Sh. Amarjit Singh Sethi that property bearing House No. 169, Sector 11-A, Chandigarh under the ownership of defendant No.1, who is a non-resident Indian and has permanently settled in USA and in which property, the ground floor along with annexe are in the possession of a tenant, had been advertised for sale. The plaintiff directed his agent and broker Sh. Amarjit Singh Sethi to contact defendant No.1 and negotiate the sale of the suit property to the plaintiff. The plaintiff was a member of the Punjab University Faculty from 1967-1972 and knew of defendant No.1, who was Professor and Head of Department of Bio-Physics in the said University till 1993.

C. Sh. Amarjit Singh Sethi contacted defendant No.1 and commenced negotiations with him and finally on June 20, 1995 an agreement was concluded between the plaintiff and defendant No.1 through telephone call from Chandigarh in the presence of the plaintiff. Sh. Sethi communicated the plaintiff’s offer of Rs. 30,00,000/-, but the defendant No.1 made a counter offer of Rs. 32,00,000/-. This conversation was heard by the plaintiff on the extension and he authorized his broker to accept the offer which was communicated and accepted by defendant No.1 in absolute and unqualified terms.

D. It was further agreed between the plaintiff and defendant No.1 during the same telephone call that the plaintiff shall deposit a sum of Rs. 3,20,000/- which is 10% of the sale price as earnest money liable to forfeiture in case the agreement failed on account of the plaintiff’s default. Defendant No.1 conveyed his saving bank account number and the name of the bank. It was also agreed that the plaintiff would pay the cost of stamp duty and registration charges and the defendant No.1 in turn shall obtain income tax clearance certificate and permission to sell from the Estate Officer, Chandigarh and then deliver actual possession of the first floor and annexe to the plaintiff upon execution of the sale deed and that the sale shall be completed within 15 days of the arrival of defendant No.1 in India, but in any case not later than August 31, 1995. Both the parties agreed to pay 2% commission to the broker i.e. Sh. Sethi. It was also agreed and clearly understood that the agreement shall become binding and enforceable from the very outset and that subsequently a more formal agreement would be prepared which would incorporate all the terms and conditions agreed upon.

E. On June 21, 1995 the plaintiff obtained a banker’s cheque for a sum of Rs.3,20,000/- and wanted to deposit the same in the defendant No.1 account, which account number appeared to be wrong, constraining the broker to call defendant No.1, who asked him to call later and thereafter gave him the correct account number.

F. On June 22, 1995 the plaintiff deposited a draft of Rs. 3,20,000/- in the said defendant’s account and thereafter the broker Sh. Amarjit Singh Sethi vide letter dated June 26, 1995 sent to the defendant enclosing therewith agreement to sell (in duplicate) bearing the plaintiff’s signatures, the original deposit receipt, a photocopy of the draft, an app