Earnest money is a security for contract performance and is forfeited if the buyer fails to prove readiness and willingness to perform.

JUDGMENT

Mr. Anil Kshetarpal, J. (Oral)

CM-5086-C-2019 in RSA-1873-2019

The prayer in this application is to condone the delay of 846 days in filing the appeal. It is claimed that late Smt. Narinder Kaur was ailing at the time when the judgment and decree was passed by the First Appellate Court and thereafter, she suffered a major heart attack. She remained under treatment from Post Graduate Institute of Medical Education & Research, Chandigarh, for a long time and ultimately expired on 16.02.2019. It is claimed that late Smt. Narinder Kaur was bed ridden for almost two years and because of her illness, there were financial constraints, which did not permit the family members to file the appeal. No reply to the application has been filed by the respondent, however, the learned counsel representing the respondent submits that only OPD slips have been produced to prove the treatment. She submits that there is a huge delay of 846 days, which should not be condoned.

2. This Court has considered the submissions of the learned counsel representing the parties.

3. The efforts of the Court should be to decide the case on merits rather than in defaults. This is the case, where the appellant has already died. Some evidence has been produced to prove that late Smt. Narinder Kaur was constantly under treatment from Post Graduate Institute of Medical Education & Research, Chandigarh.

4. Keeping in view the aforesaid facts, the delay of 846 days in filing the appeal is condoned.

5. CM stands disposed of.

RSA-1873-2019

6. With the consent of the learned counsel representing the parties, the appeal is taken on board for final disposal.

7. This is the defendant's regular second appeal against the judgment and decree passed by the First Appellate Court while granting alternative relief to the plaintiff to recover Rs. 2,00,000/-, the amount of earnest money along with the interest at the rate of 6% per annum from the date of filing of the suit till its realization.

8. In order to comprehend the issue involved in the present case, the relevant facts, in brief, are required to be noticed.

9. The respondent (plaintiff before the trial Court) filed suit for specific performance of the agreement to sell dated 23.11.2004, alleging that defendant executed an agreement to sell in his favour with respect to the land measuring 4 bighas and 4 biswas on receipt of Rs. 1,08,000/- per bigha as earnest money out of total sale consideration of Rs. 4,53,600/-. As per the agreement to sell, the sale deed was to be executed on 28.02.2005, on this date, the plaintiff remained present in the office of Sub-Registrar, however, the defendant did not come forward. Thereafter, the plaintiff received notice from the defendant to come in the office of the Sub-Registrar on 06.05.2005 and the plaintiff visited the office of the Sub-Registrar but the defendant did not turn up. The plaintiff also issued notice on 18.05.2005 to the defendant.

10. While contesting the suit, the defendant claimed that the plaintiff was ready and willing to perform his part of the contract and the suit has been filed after a period of long time on 15.05.2007.

11. The trial Court dismissed the suit. The plaintiff filed first appeal. The First Appellate Court on re-appreciation of evidence came to a conclusion that the plaintiff has failed to prove that he remained ready and willing to perform his part of the contract, however, the First Appellate Court held that the plaintiff is entitled to claim refund of earnest money of Rs. 2,00,000/-. The correctness of decree passed by the First Appellate Court is challenged in this appeal.

12. This Bench has heard the learned counsel representing the parties at length and with their able assistance perused the paper book.

13. The learned counsel representing the appellant submits that the Appellate Court has erred in ordering refund of earnest money after recording finding that the plaintiff was not ready and willing to perform his part of the contract. He subm