The plaintiff's right to seek recovery without filing a suit for specific performance and the consequences of determination of the agreement by the vendee due to the default of the vendor.

RAJBIR SEHRAWAT, J.

1. The present appeal has been filed, by the legal representatives of Satish Kumar, the plaintiff; against the concurrent judgment and decree passed by the Courts below; whereby the suit filed by the above said Satish Kumar for recovery of Rs. 10,00,000/- from the defendants, which was paid by him as earnest money in an agreement to sell, has been dismissed. For convenience the parties would be referred to herein as the plaintiff and the defendant as they were described in original suit.

2. The brief facts, as pleaded by plaintiff and mentioned in the judgment of the lower Appellate Court; are that on 03.04.2006, the defendant agreed to sell the land measuring 28 Kanals 11 Marlas, comprised in Khasra Nos. mentioned in the agreement, situated in Village Kheri Tagga, Tehsil Gannaur, District Sonepat, to the plaintiff for a sale consideration at the rate of Rs. 17,70,000/- per acre. He had received Rs. 10,00,000/- from the plaintiff. The target date for execution of the sale deed was fixed as 29.05.2006. It was not recorded in the agreement that the defendant was the absolute owner of the land. However, the agreement stipulated that the defendant had agreements in his favour from several persons, who were the co-sharers in the land, to purchase this land and those agreements contained stipulations that the defendant could get the sale deed executed in his favour or in favour of the somebody else. On the target date i.e. 29.05.2006, the sale deed could not be executed because the defendant could not arrange for NOC qua the suit land and could not bring all the abovesaid co-sharers to execute the sale deed in favour of the plaintiff. Since, the defendant kept postponing the matter; expressing his inability to execute the sale deed because of the lack of title, therefore, the plaintiff asked him either to refund the earnest money or to get a General Power of Attorney (GPA) from all his vendors, so as to execute the sale deed in favour of the plaintiff. However, instead of either returning Rs. 10,00,000/- to him or getting GPA from his vendors, the defendant hatched a conspiracy to usurp the amount of earnest money by hook or by crook. Hence, the defendant got the notice dated 09.06.2006 served upon the plaintiff through his Advocate. However, the plaintiff also replied to the notice through Advocate on 15.06.2006 and asked the defendant that he should acquire the title qua the land in question and inform the plaintiff about the date of executing the sale deed, otherwise the plaintiff would be entitled to the refund of Rs. 10,00,000/-, besides damages and interest at the rate of 18% per annum. However, instead of acquiring the title of the land to be sold by him to the plaintiff, the defendant again got served a notice dated 19.06.2006, by way of rejoinder to the reply of the plaintiff. Faced with the situation, the plaintiff again sent a final reply dated 04.07.2006 to the defendant. In this letter, it was stated that the plaintiff and his brother will obtain the equal share, each having half share in the land being purchased, and that they have got sufficient amount in their bank accounts. It was further stated in this letter that till date, the defendant was not having the title of the suit land to confer the same upon the plaintiff; by way of executing the sale deed in favour of the plaintiff. Therefore, it was called upon the defendant that he should either obtain the sale deed in his favour from all the original owners or he should, at least, obtain the GPA from all the original owners-with whom he claims to have agreement to purchase the suit land, so that he can execute the sale deed in favour of the plaintiff. It was further written in this communication that the defendant should inform the plaintiff about acquiring of the GPA in his favour upto 31.07.2006. Otherwise, the agreement shall stand cancelled and the plaintiff will be entitled for refund of the earnest money. By this communication, the