The court affirmed that a plaintiff seeking specific performance must prove valid execution of the agreement and continuous readiness to perform contractual duties, which the plaintiff successfully demonstrated.

JUDGMENT :

Pankaj Jain, J.

1. The defendant is in regular second appeal. The plaintiff filed a suit seeking decree for possession by way of specific performance by agreement to sell dated 17.06.2005 qua land measuring 12 kanals as detailed out in the head note of the plaint.

2. As per the pleaded case of the plaintiff, defendant agreed to sell the suit land in his favour by executing an agreement to sell dated 17.06.2005 for valuable consideration of Rs.2,60,000/- per acre. The defendant received Rs.3,10,000/- as earnest money and the parties agreed to get the sale deed executed on or before 10.08.2005. The plaintiff claims to have remained present on the appointed date in the office of Sub Registrar from 10.00 am to 5.00 pm. He, however, claims that defendant failed to turn up to execute the sale deed in his favour. The plaintiff got his presence marked by way of an affidavit and served legal notice dated 19.08.2005 through his counsel to the defendant calling him to execute the sale deed on or before 06.09.2005. As per the plaintiff, he remained present in the office of Sub Registrar on the said date, however, defendant again failed to turn up. The plaintiff claims that he remained ready and willing to perform his part throughout. The present suit was instituted on 14.09.2005.

3. The suit was contested by the defendant. As per defendant, plaintiff is a commission agent. The defendant borrowed an amount of Rs.40,000/- from the plaintiff in the month of June, 2005 on interest @ 1% per month. The plaintiff in order to secure his amount asked the defendant to sign on blank stamp papers. As per the defendant, agreement to sell was never executed by him and it is those blank stamp papers signed by him, which have been misused by the plaintiff for execution of agreement to sell. The defendant at the same time claims that on return of money, when he asked the plaintiff to return the blank stamp papers, the same were torn by the plaintiff in his presence. The defendant also denied receipt of earnest money of Rs.3,10,000/-.

4. The suit filed by the plaintiff was put up to trial for recording of following issues:

1. Whether the plaintiff is entitled to the specific performance of the agreement dated 17.06.2005? OPP

2. Whether the plaintiff is ready and willing to perform his part of the contract dated 17.06.2005? OPP

3. If issue No.2 is not proved, whether the plaintiff is entitled to the alterative relief? OPP

4. Whether the suit is not maintainable? OPD

5. Whether the plaintiff has no cause of action to file the present suit? OPD

6. Relief.

In order to prove execution of agreement to sell, the plaintiff examined both the attesting witnesses namely Manga Masih as PW-2 and Rattan Chand as PW-3.

5. Answering issue No.1 and 2, the Court of the first instance found that the execution of agreement to sell stands proved by testimony of Manga Masih and Rattan Chand. The defendant failed to lead any evidence to prove his defence of blank stamp papers having been misused for creating agreement to sell. While recording finding with respect to readiness and willingness of the plaintiff, trial Court found that the presence of the plaintiff stands proved by affidavits Ex.P-2 and Ex.P-4. Legal notice dated 19.08.2005 Ex.P-3 served at the behest of plaintiff calling upon the defendant to come and execute the sale deed also stands proved. The major amount out of the total sale consideration stood paid as earnest money at the time of execution of sale deed. Residual amount of Rs.80,000/- was to be paid by the plaintiff. This shows that the plaintiff-respondent remained ready and willi