Agreement to Sell--Forfeiture of Earnest money--Once it is proved that buyer was not ready and willing to perform his part than seller cannot be directed to refund the earnest money - Agreement to Sell--Readiness and Willingness--Affidavits with regard to marking of presence of defendants have to be proved

JUDGMENT

Mr. Amit Rawal, J.:- In pursuance to the order dated 09.05.2019, an affidavit has been filed. The same is taken on record.

2. The present regular second appeal at the instance of appellantdefendants is directed against the concurrent findings of fact and law whereby suit of the respondent-plaintiff seeking specific performance of the agreement to sell dated 17.02.2004 in respect of the land measuring 23 kanals 4 marlas owned by the defendants, has been confined to the decree of alternative relief.

3. The respondent-plaintiff sought the specific performance of the agreement to sell on the premise that appellant-defendants had agreed to sell the land at the rate of Rs.79,00,000/- per acre and received a sum of Rs.18,31,000/- as advance by stipulating the target date for execution and registration of the sale deed as 16.8.2004 on receipt of ‘No Objection Certificate’ (NOC) and remaining defendant i.e. Omwati herself and natural guardian of Sonu had also entered into agreement to sell of even date at the same rate and received a sum of Rs.4,59,000/- advance price by fixing the same target date with a condition that necessary permission from the Court regarding sale of share of minor defendant would be taken. The defendants refused to sign the requisite papers for obtaining NOC. The plaintiff attended the office of Sub-Registrar on 16.8.2004 with a balance sale consideration but the defendants did not turn up and avoided to discharge the obligation as per the terms and conditions of the agreement.

4. The defendants opposed the suit and and asserted that plaintiff was not entitled to the discretionary relief as no steps were taken for obtaining the NOC. The alleged affidavit marking the presence was stated to be false and the defendants, vide registered notice dated 18.8.2004 informed the plaintiff, which was also endorsed to the property dealer and gave another opportunity to the plaintiff to perform his part of the contract on 01.09.2004 failing which the contract would stand cancelled and forfeiture of the earnest money but the plaintiff did not appear on02.09.2004 as did not have the funds to pay the balance sale consideration during the period 10.07.2004 to 02.09.2004. The defendants co-operated with the plaintiff for obtaining the NOC as the mediator i.e. property dealer on 10.07.2004 obtained the requisite signatures/thumb impressions for the purpose of obtaining the NOC, apart from the permission from the guardian judge which was taken on 1.5.2004. The averments qua non/co-operation and non- appendation of the necessary application were also emphatically denied. Since 01.09.2004 was declared holiday, defendants appeared before the Sub Registrar a day before but the plaintiff did not come forward.

5. It is a matter of record that during the pendency of the suit, the plaintiff had earlier claimed the specific performance by way of amendment challenging the termination and cancellation of the agreement which was allowed, vide order dated 31.10.2014.

6. Since the parties were at variance, the trial Court framed the following issues:-

“1. Whether defendants entered into agreement to sell on 17.02.2004 regarding the suit land with the plaintiff for a sale consideration @ Rs.79,00,000/- per acre?OPP

2. Whether defendants failed to perform their part of contract?OPP

3. Whether the plaintiff has been ready and willing to perform his part of contract throughout?OPP

4. Whether the plaintiff entitled to decree of possession by way of specific performance of the contract?OPP

5. Whether the plaintiff is estopped from filing the present suit by his own act, conduct?OPD

6. Whether the suit is not maintainable in the present form?OPD

7. Whether the plaintiff has no cause of action to file the present suit?OPD

8. Whether the suit is bad for non-joinder of necessary parties?OPD

9. Relief.:

7. Additional issue was framed on 17.11.2014:-

“8-A Whether the relief of declaration incorporated by the plaintiff by way of amendment of plaint is