The seller is bound to disclose any material defect in the property or title, and the prospective buyer is entitled to claim a refund of earnest money if the agreement cannot be enforced.

JUDGMENT :

G.S. Sandhawalia, J.

The present regular second appeal has been filed for setting aside the concurrent findings of the Courts below, whereby the suit of the plaintiff-respondent was decreed for recovery of Rs.55 lakhs on account of earnest money alongwith interest @ 9% from the date of filing of the suit till the date of order and future interest at the same rate. The same is directed against the judgment and the decree of the Civil Judge, SAS Nagar, Mohali dated 12.03.2018, which was upheld in appeal on 14.08.2019 by the then District Judge.

2. Initially, an appeal bearing RSA No.5594 of 2019 had been filed, which was dismissed as withdrawn on 18.02.2020 and the Coordinate Bench had recorded the factum that after arguing for sometime counsel wishes to withdraw the present appeal with liberty to file a fresh one with better particulars. Resultantly, the appeal was dismissed with the liberty as such. The second appeal has thus now been filed alongwith application for condonation of delay of 123 days in filing the same, in which it has been averred that the earlier counsel had not informed the appellant and only when the auction notice had been fixed, he had come to know about the said order and sought condonation.

3. Firstly, the delay in the opinion of this Court is not of 123 days, since the judgment and decree of the Appellate Court was dated 14.08.2019 and the appeal was only filed on 01.03.2021, even if we take the date of withdrawal into consideration. Since the main appeal as such now is being decided on merits for the reasons given below, no serious consideration on the application for condonation of delay as such is required.

4. A perusal of the paper-book would go on to show that an agreement to sell dated 10.05.2013 was executed inter se the parties for land measuring 32 bighas of land @ Rs.40,25,000/- per acre, situated at village Budhanpuur, Tehsil Banur, District SAS Nagar, Mohali. The same was from a share of land of 82 bighas 9 biswas, as per the jamabandi for the year 2006-2007. The last date for registration of sale deed was fixed as 12.08.2013 and an additional sum of Rs.5 lakhs was also received on 20.05.2013. The time was got extended by the appellants themselves on 12.08.2013 till 22.08.2013 by making an endorsement behind the said agreement.

5. The suit was filed on the strength that the defendants were not owner of 32 bighas of land, but only of 7 bighas of land and, therefore, the agreement was a result of fraud for which an FIR No.10 dated 07.01.2014 under Sections 406, 419, 420, 120-B IPC had already been lodged at Police Station Rajpura City against the defendants. The case of the plaintiff-respondent was that he had remained ready and willing to perform his part of the agreement and had also appeared before the Sub-Registrar, Banur and got his presence marked. Resultantly, the suit was filed on 10.05.2016 for recovery of the said amount.

6. The defence of the appellants was that the earnest money of Rs.55 lakhs had been forfeited as the plaintiff had failed to perform his part of agreement and a legal notice dated 27.08.2013 had also been served upon him regarding this fact.

7. After taking into consideration the statement of DW-1- appellant No.1 herein, the trial Court recorded that there was an admission that a sum of Rs.55 lakhs had been received as earnest money and that the ownership of the land as such was only to the extent of 27 bighas, which was on the strength of statement of the DW-3 Tajinder Pal Singh, Patwari Halqa Bhuddanpur who was also examined by the plaintiff as PW-2. It was also noticed that appellant No.2 being the brother of appellant No.1 did not step into the witness box for his cross-examination and, therefore, his evidence could not be taken into account. Resultantly, on account of the inability as such to execute the sale deed of the land which had been agreed to be sold, the amount was ordered to be refunded by rejecting the case of the appellants that the agreement had