Agreement to Sell – Adverse Inference cannot be drawn against the defendant on account of his non-appearance in evidence particularly when sufficient evidence is available on record
Agreement to Sell – Refund of Double the Earnest Money – Plaintiff is not entitled unless he proves that he has suffered loss or damages entitling him to double of the earnest money

Mr. Anil Kshetarpal, J.:- By this judgment, RSA Nos.4091 and 4758 of 2003 shall stand disposed of as both are arising from the suit filed by the plaintiff- appellant in RSA No.4758 of 2003. Plaintiff as well as defendants have filed these appeals against a common judgment.

2. In the considered view of this Court, following substantial questions of law arise for determination by this Court:-

1) Whether adverse inference can be drawn against the defendant in the suit for specific performance of agreement to sell on account of his non-appearance in evidence particularly when sufficient evidence is available?

2) Whether in absence of evidence of loss or damages, refund of double amount of the earnest money can be ordered?

3) Whether judgment passed by the First Appellate Court is result of misreading of evidence?

3. Some facts are required to be noticed. Undisputed facts are that plaintiff Passa @ Ram Chander agreed to purchase land measuring 46 kanals from defendant No.1 Gopi vide agreement to sell dated 27.08.1994 at the rate of Rs.95,000/- per acre (total sale consideration Rs.5,46,250/-) and paid Rs.80,000/- as earnest money. The land agreed to be sold was already under mortgage with possession in favour of the plaintiff vide mortgage deed dated 16.01.1992 for a sum of Rs.50,000/-. The date for execution and registration of the sale deed was fixed as 10.06.1995.

4. The only dispute between the parties is whether plaintiff was ready and willing to perform his part of the contract or not. Plaintiff filed a suit on 04.04.1996. He pleaded that he was always ready and willing and now also, ready and willing to perform his part of the contract and it is the defendant who failed to perform his part of the contract. It may be noted that defendant No.2 is subsequent purchaser of the property through registered sale deed. Learned trial Court held that plaintiff was not ready and willing to perform his part of the contract. However, the learned trial Court ordered refund of the earnest money. Plaintiff filed first appeal. Learned First Appellate Court has held that the plaintiff was ready and willing to perform his part of the contract, however, the Court has held that sale in favour of defendant No.2 is bona fide and, therefore, plaintiff is entitled to refund, double of the amount of earnest money alongwith interest at the rate of 6% p.a..

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

7. Learned Senior Counsel appearing for the plaintiff-appellant has submitted that no information was given to the plaintiff that defendant has already obtained income tax clearance certificate before the target date. He further submitted that the land was under mortgage and the property in question was charged against loan from Oriental Bank of Commerce and State Bank of Patiala. He further drew attention of the Court to the statement of DW1 Scribe of the application filed before the Sub-Registrar for marking attendance. He also referred to the statement of official from the Sub-Registrar’s office who was examined to prove that defendant was present on 12.06.1995. He further submitted that defendant has not appeared in evidence and, therefore, adverse inference has rightly been drawn by the First Appellate Court. He further submitted that the plaintiff has appeared in evidence and proved his case.

8. On the other hand, learned counsel for the respondents has submitted that in the plaint, plaintiff has not asserted that on the target date he visited the office of Sub-Registrar. It may be noted here that the target date i.e. 10.06.1995 was a official holiday being Saturday, therefore, the next working day was 12.06.1995. He has submitted that on 12.06.1995, defendant visited the office of the Sub-Registrar and moved an application as plaintiff did not come forward and got his presence noted. He further submitted that on reading of the sta