JUDGMENT

Anil Kshetarpal, J. (Oral) - Defendant-appellant is in the regular second appeal against the judgment passed by the First Appellate Court granting relief of specific performance of the agreement to sell in place of refund of the earnest money along with interest granted by the trial Court.

2. As regards findings of the Court with regard to execution of the agreement to sell, readiness and willingness and payment of amount being finding of fact does not require interference. However, this Court is of the view that the plaintiff is not entitled to the decree for specific performance of the agreement to sell. The reasons are as under:-

1. The plaintiff in the plaint does not disclose that there was another transaction through which Rs.3,00,000/- had received back in the account of the plaintiff between the parties. The plaintiff in the plaint does not disclose this fact and when in the written statement it was pointed out by the defendant, the plaintiff in the replication denies encashment of the aforesaid cheque. However, when the plaintiff appeared in cross-examination, he admitted that cheque of Rs.2,00,000/- had been encashed which was drawn on the account of the defendant b