JUDGMENT/ORDER

Ravi Ranjan, J. - CM No. 6210-C of 2019

1. This application has been filed under Section 151 of Code of Civil Procedure, 1908 for condoning the delay of 34 days in re-filing the present appeal.

Heard.

In view of the averments made in the application, this application is allowed and delay of 34 days in re-filing the appeal is hereby condoned. This order would be subject to all just exceptions.

RSA No. 2306 of 2019 (O & M)

This appeal is directed against the judgment and decree dated 19.12.2018 passed in CA/428/2016 by the District Judge, Sonepat, by which he has affirmed the judgment and decree dated 12.08.2016 passed by the Civil Judge (Sr. Divn.), Sonepat and has dismissed the appeal with costs.

2. Short facts which would be necessary for consideration of lis stand enumerated as under:

3. The plaintiff-respondent filed a suit seeking a relief for specific performance of contract to sell dated 21.05.2007. Allegation is that the plaintiff entered into an agreement with defendant to sell the suit property which is a plot measuring 300 Sq. yards of the land comprised in Khewat No. 313 Khata No. 456 and other descriptions which stand fully detailed in the plaint, for a valuable consideration of Rs. 6,90,000/-. It is claimed that on the date of agreement itself, Rs. 6,80,000/- was paid as earnest money in the presence of witnesses and a receipt thereof was executed to that effect by the defendant/appellant and the balance amount of Rs. 10,000/- was undertaken to be paid by the plaintiff within a period of 10 days. Eventually, on 28.05.2007, the plaintiff paid the remaining amount of Rs. 10,000/- also for which a separate receipt was granted in the presence of witnesses. It is further case of the plaintiff that the defendant also delivered the actual physical possession of the plot on the date of agreement itself and it was agreed between the parties that the defendant would execute and get the sale deed registered as and when desired by the plaintiff and as such, though the sale was complete but a formal sale deed was left to be executed in future It is further alleged that the plaintiff requested the defendant several times to execute the sale deed in her favour but he refused to do the same. Though, the plaintiff remained ready and willing to get the sale deed executed as she had already paid the entire consideration amount but no heed was paid by the defendant and he did not come forward to accede her request. Hence, the suit was filed.

4. On notice, the defendant appeared and contested the suit by filing a written, statement. A challenge was first made on the issue of maintainability of suit and alleging the agreement to be false, fictitious and fabricated document and second plea was taken regarding the suit being time barred and execution of agreement as well as receipt of payment have also been denied.

5. On the basis of the rival pleadings, the trial Court framed the following issues.

1. Whether vide agreement dated 21.05.2007, defendant agreed to sell the plot in question fully detailed in para "No. 1 of the plaint in favour of plaintiff for total sale consideration of the Rs. 6,90,000/- and received a sum of Rs. 6,80,000/- as earnest money? OPP

2. Whether plaintiff was/is ready and willing to perform his part of contract? OPP.

3. Whether the plaintiff is entitled to a decree for specific performance of contract dated 21.05.2007? OPP.

4. Whether in the alternative, plaintiff is entitled to the decree for recovery of earnest money alongwith damages and interest @ of 12% per annum? OPP

5. Whether the suit of the plaintiff is not maintainable? OPD.

6. Whether suit of the plaintiff is time barred? OPD

7. Whether plaintiff is estopped by her own act and conduct to file the suit? OPD

8. Whether plaintiff has no locus-standi to file the present suit? OPD

9. Whether proper fees affixed on the plaint? OPD

10. Relief.

6. Issue Nos. 1, 3 and 4, being inter-connected, have been considered together by the trial Court. The onus probandi to pr