Agreement to Sell--Cancellation of—Unilateral cancellation of agreement to sell by one party cannot be raised as a defence in a suit for specific performance.
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Mr. Rajbir Sehrawat, J. (Oral):- This is a second appeal filed by the defendant challenging the judgments and decrees passed by the Courts below, whereby the suit of the plaintiff of specific performance has been decreed. For the convenience the parties would be referred herein as the plaintiff and the defendant as were described in the original suit.

2. The brief facts of the case are that the suit was filed by the plaintiff claiming that the defendant had entered into an agreement dated 14.02.2011 with him in for sale of a house, as detailed in the head note in the plaint, measuring 23 marlas. The sale consideration was fixed at Rs. 40,50,000/-. Out of that Rs.10,00,000/- were received by the defendant as earnest money. The target date for the execution of the sale deed was fixed as 20.04.2012. It was further claimed that on 20.04.2012 the plaintiff remained present in the office of the Sub Registrar, Gurdaspur; along with the balance sale consideration. However, the defendant did not reach there, to execute the sale deed. Resultantly, on the target date, the sale deed could not be executed. It is further pleaded by the plaintiff that thereafter, he sent a legal notice dated 30.04.2012 informing the defendant that he could come to the office of the Sub-Registrar on 10.05.2012 for execution of the sale deed. However, again on this date, the defendant did not turn up. Therefore, the plaintiff filed the suit.

3. On notice, the defendant filed written statement taking routine preliminary objections. However, on merits it was claimed by the defendant that he had sent a legal notice dated 17.04.2012 informing the plaintiff that the agreement in question was not intended to be an agreement to sell and that this was signed only as a security for repayment of the amount which, according to the defendant, was taken as a loan @ 2% per month. Therefore, the defendant claims that this legal notice would tantamount to termination of the agreement. Still further, the defendant denied the pleading of the plaintiff that the agreement was intended to be an agreement to sell. However, the receipt of Rs.10 lac was admitted in written statement itself. Still further, the signatures on the agreement was also admitted. Still further, the defendant claimed the hardship to him, in case a decree of specific performance is passed in the suit.

4. Parties led their respective evidence.

5. To prove the agreement to sell, the plaintiff examined the attesting witnesses PW-2 Ranjodh Singh and the scribe of the agreement Ravi Kant Rehanil, Advocate as PW-3. Still further, Sh. Manjit Singh was examined as PW-4 who is also one of the attesting witness.

6. On the other hand, the defendant examined himself as DW-1 and also examined Gurjeet Singh as DW-2 to substantiate his plea regarding the agreement; being document of security for the repayment of the loan.

7. After hearing the parties and appreciating the evidence, the trial Court decreed the suit filed by the plaintiff. The trial Court recorded the finding that the witnesses examined by the plaintiff have duly proved the execution of the agreement in question. Still further, the trial Court recorded the finding that the legal notice dated 30th April 2012 Ex. P-5 and its postal receipt ExP-6 also stands proved. To show his readiness and willingness, Ex-P-7 is also proved on record, to show that the plaintiff remained in the office of Sub-Registrar, Gurdaspur on 10.05.2012 along with the balance sale consideration.

8. The trial Court also held that the onus to prove that the agreement to sell in question was not intended to be an agreement for transfer of the property, rather, it was intended to be executed as a security for repayment of loan amount taken by him, was upon the defendant. However, he has failed to prove his plea regarding the agreement being a document of security for repayment of loan. The only witness examined by him, DW-2 has admitted in cross-examination that he was not even present