The plaintiff's readiness and willingness to perform their part of the contract must be established on record, and the deposit of balance sale consideration in Court after a lapse of time may not establish the same.

JUDGMENT

Tribhuvandahiya, J. - This is appellant/defendant's (hereinafter referred to as the 'defendant') second appeal against the concurrent findings of both the Courts below.

2. The facts of the case in brief are, a suit for specific performance of an agreement to sell dated 24.02.2011 for the remaining half share in the suit property/residential house, was filed by the respondents/plaintiffs (hereinafter referred to as the 'plaintiffs'). The agreement to sell was voluntarily executed by the appellant/defendant along with his brother in favour of the plaintiffs on receiving earnest money of 7 lakh. The target date for execution of the sale deed was fixed as 30.11.2011. On that date, due to inter se dispute between the two brothers/executants, the sale deed could not be executed. Vikas Kumar/defendant's brother accepted balance sale consideration of 6 lakh from the plaintiffs on 13.01.2012, which was endorsed by him at the reverse of the agreement to sell in the presence of witness Deepak Kumar. The plaintiffs served a legal notice dated 28.03.2012 to both the brothers calling upon them to execute the sale deed in terms of the agreement to sell, giving them a week's time to do so. Both the brothers did not execute the sale deed. Presence of the plaintiffs was got marked before the Sub-registrar by way of an affidavit of presence dated 09.04.2012. Thereafter, the plaintiffs met both the brothers and agreed to perform their part of the contract. On 11.04.2012, a sum of 3 lakh was paid to Vikas Kumar/defendant's brother vide cheque bearing No.22690. A receipt to that effect was issued on the reverse of the agreement to the plaintiffs by him. On 18.04.2012, only the defendant's brother, Vikas Kumar, executed sale deed of his half share in the suit property and got it registered in part performance of the agreement to sell executed in favour of the plaintiffs by both the brothers. The defendant, however, refused to do so leading to the institution of suit in question.

3. The defendant contested the suit pleading that the plaintiffs were bound by the terms and conditions of the agreement to sell dated 24.02.2011, in terms whereof date for registration of sale deed was fixed as 30.11.2011. But the plaintiffs did not turn up along with balance sale consideration on that date. On their failure to do so, the earnest money would stand forfeited.

4. On completion of the pleadings, following issues were framed by the trial Court:

1. Whether the defendant entered into an agreement to sell dated 24.02.2011 with the plaintiffs and received Rs.3.5 Lakh from plaintiffs as earnest money on the same day? OPP

2. Whether the suit is not maintainable? OPD

3. Whether the alleged agreement is without consideration? OPD

4. Whether plaintiff has no cause of action and locus-standi to file the present suit? OPD

5. Whether the suit of the plaintiffs is false, frivolous and vexatious? OPD

6. Relief.

5. Issue No.1 was decided in favour of the plaintiffs by the trial Court holding that due execution of the agreement to sell was established on record, as also the payment of earnest money as well as readiness and willingness to perform their part of the contract by the plaintiffs. In the light of the Issue No.1, Issues No.2 to 5 were also decided against the defendant holding the suit to be maintainable and that the plaintiffs had locus standi and cause of action to file the same. The judgment of the trial Court was affirmed by the lower appellate Court in appeal.

6. Learned counsel for the appellant/defendant has contended that there was no readiness and willingness on the part of the plaintiffs to perform their part of the transaction, and they failed to make payment of balance sale consideration for execution of the sale deed on the date fixed, i.e., 30.11.2011 leading to forfeiture of the earnest money. Besides, they are not able to establish their financial capability to pay the balance sale consideration on that date. Merely because a part of the sale consideratio