The main legal point established in the judgment is that the readiness and willingness of a party to perform a contract, the enforceability of an oral agreement to sell, and the burden of proof in establishing a benami transaction were crucial in determining the outcome of the case.

AMIT RAWAL, J.

1. This order of mine shall dispose of two Regular Second Appeals bearing No.2803 and 4279 of 2013.

2. RSA No.2803 of 2013 was filed at the instance of the plaintiff and RSA No.4279 of 2013 by the defendants as the trial Court decreed the suit of the plaintiff seeking specific performance of the agreement to sell dated 18.12.2003 in respect of plot No.1361, Sector 26, Panchkula agreed to be sold for a total sale consideration of Rs.6,09,000/- + Rs.91,000/- = Rs.7,00,000/- against the payment of Rs.91,000/-, whereas, Rs.21,000/- has been paid in cash and Rs.70,000/- paid by cheque no.123576 dated 17.12.2003. However in appeal, the Lower Appellate Court reversed the finding against the plaintiff qua exercise of discretion under Section 20 of the Specific Relief Act, 1963 (hereinafter referred to as “1963 Act”) and converted the suit for refund of earnest money along with interest @ 12% from the date of filing of the suit till its realization.

3. Mr. R.K. Gupta, learned counsel appearing on behalf of plaintiff - Vijay Kumar submits that the stipulated date for execution and registration of the sale deed was fixed 15.02.2004. The Lower Appellate Court has gone into the arena of conjectures and surmises by holding that the agreement to sell was not signed by plaintiff - Vijay Kumar, as he has signed on behalf of Govind Mohan. The defence taken by the defendants was that they got impression that Govind Mohan was Vijay Kumar. No doubt, on the stipulated date, as per the terms and conditions of the agreement to sell, as well as the provisions of HUDA bye-laws, the vendor was required to obtain NOC/submit an application for permission to transfer the plot by depositing the transfer fees. Since he did not deposit the same by the aforementioned date but applied on 16.04.2004 by depositing a sum of Rs.5,000/-, vide Ex.P9 and the application is dated 19.04.2004. Accordingly, the parties had agreed to execute and register the sale deed on 23.08.2004, but the defendants did not appear on the date fixed before the office of Sub Registrar Panchkula despite the fact that plaintiff had prepared a demand draft dated 23.08.2004 of balance amount of Rs.6,09,000/-, preceding to the stipulated date for execution and registration of the sale deed. The legal notice dated 03.08.2004 was sent. If at all, the defendants had any grievance with regard to the identity of Vijay Kumar, they could have easily rebutted in evidence by filing a written statement. The defence taken in the written statement was an after thought.

4. It is now well settled law that even the oral agreement to sell is valid in the law, even if the vendee has not signed the same which is admissible in evidence and can be seen for the purpose of intention of the parties.

5. In support of his aforementioned contention, he has relied upon the ratio decidendi culled out in judgment rendered by Hon'ble the Supreme Court in Alka Bose vs. Parmatma Devi and others 2009(1) RCR (Civil) 450 and the judgment of this Court rendered in RFA No.1504 of 1977 titled as Gian Singh and others vs. Smt. Devinderjit Kaur.

6. He further submits that for grant of relief of specific performance, discretion cannot be denied on the premise that price of the plot has increased during the pendency of the litigation. The alternative relief can only be granted, had the plaintiff always not been ready and willing to perform his part of contract, much less, not diligently pursuing the litigation.

7. The plaintiff has examined himself as PW1 and Govind Mohan as PW2. The factum of execution of the agreement to sell has not been denied but only readiness and willingness had been challenged. The Lower Appellate Court has erroneously rendered the finding that Govind Mohan was not authorised to enter into agreement to sell on behalf of Vijay Kumar. The aforementioned finding is neither here and there as there is no reference to the examination-in-chief of Govind Mohan, wherein, it has been categorically state