The plaintiffs' readiness and willingness to perform their part of the contract, as well as their ability to pay the balance sale consideration, are crucial factors in determining entitlement to specific performance or refund of earnest money.

ANIL KSHETARPAL, J.

1. Plaintiffs-Appellants through their LRs are in the regular second appeal against the judgment passed by the First Appellate Court granting alternative relief i.e. refund of the earnest money in place of relief of specific performance of the agreement to sell.

2. The execution of the agreement to sell dated 19.02.1999 with respect to the land measuring 210 kanals 17 marlas at the rate of Rs.1,50,000/- per acre (8 kanals) and payment of earnest money of Rs.2,00,000/- is not disputed between the parties. As per the agreement to sell, the sale deeds of the entire land were agreed to be registered in three parts. The plaintiffs were required to get the sale deed registered of 96 kanals land upto 25.09.1999. Next sale deed with respect to the land measuring 64 kanals was required to be executed and registered on 19.01.2000. On that day, the plaintiffs were also required to pay the earnest money with respect to the land little bit more than 7 acres of land. It is further undisputed that the plaintiffs paid Rs.1,00,000/- as additional payment on 11.03.1999.

3. The execution of various sale deeds with respect to 108 kanals land before 25.09.1999 are not disputed. However, from here onward, the dispute starts. The plaintiffs claim that they were ready and willing to perform their part of the contract whereas defendants claim that the plaintiffs were not ready and willing to perform their part of the contract. It will be noted here that the plaintiffs got registered FIR against the defendants bearing No.290 dated 19.12.1999 alleging that a fraud has been committed by the defendants. Later on, the aforesaid FIR was cancelled. The plaintiffs also claim that it was stipulated in the agreement to sell that in case if some part of the land is under litigation, the time for execution and registration of the sale deed would stand extended. The plaintiffs have claimed that they were ready and willing to perform their part of the contract on 19.01.2000 whereas defendants did not come forward. On the other hand, the defendants plead that the plaintiffs were never ready and willing to perform their part of the contract.

4. Learned First Appellate Court on re-appreciation of evidence has held that the plaintiffs are only entitled to refund of the earnest money.

5. This Court has heard learned counsel for the parties at length and with their able assistance gone through the judgments passed by the Courts below and the record.

6. Learned senior counsel appearing for the appellants has stated that the First Appellate Court has erred while returning a finding that the plaintiffs were not possessed of sufficient means to get the sale deed executed on 19.01.2000. While elaborating, he has submitted that the plaintiffs had sold the properties through sale deeds Ex.P-A to P-E for a sum of Rs.22,68,282/- out of which sale deeds were got registered from the defendants with respect to 108 kanals land on payment of Rs.20,27,798/-. Thus, balance amount approximately Rs.2,40,000/- was available with the plaintiffs out of the sale consideration received. He further drew attention of the Court to Ex.P-F and P-G, execution of further sale deeds the plaintiffs received Rs.6,84,844/-, hence, counsel submitted that Rs.9,25,333/- was available with the plaintiffs from the sale consideration itself and thus, the finding of the First Appellate Court is erroneous. He further submitted that a litigation was pending as Gurnam Singh has obtained injunction with regard to 21 kanals of land and therefore, the time for execution and registration of the sale deeds as per contract stood extended. He further submitted that there was another litigation against Jarnail Singh and therefore, the sale was not executed.

7. On the other hand, learned counsel for the respondents has submitted that the plaintiffs were required to get the sale deed executed with regard to 64 kanals land upto 19.01.2000. On that day, the plaintiffs were also required to pay the earne