IMPORTANT POINT
Suit on the basis of unregistered agreement for specific purpose thereof is certainly maintainable although such an agreement cannot be used as defense in terms of Section 53A.

L.N. Mittal, J. —C.M.No.5742C of 2011:

For reasons mentioned in the application, which is accompanied by affidavit, delay of 62 days in re-filing the appeal is condoned.

MAIN APPEAL

Defendant-appellant Mool Chand Mundhra having lost in both the courts below has filed the instant second appeal.

2. Respondent-plaintiff Indu Bala filed suit for specific performance of agreement to sell dated 10.8.2002 alleging that the defendant agreed to sell the suit property to the plaintiff for Rs.8,00,000 and received Rs.7,00,000 as earnest money and executed the aforesaid agreement. Possession of the suit property was also handed over to the plaintiff. Sale deed was to be executed up to 9.2.2003. Accordingly, the plaintiff remained present in the office of Sub-Registrar on 9.2.2003 for getting the sale deed executed in terms of the agreement, but the defendant did not turn up. The plaintiff approached the defendant for execution of the sale deed in terms of the agreement, but the defendant expressed inability to clear the bank loan, which had been taken by him against the suit property. Time was accordingly extended up to 1.7.2005, but again the defendant expressed inability to clear the bank loan and to execute the sale deed. Notice dated 18.7.2005 sent by the plaintiff to the defendant to execute the sale deed in terms of the agreement also remained futile. The plaintiff always remained ready and willing to perform her part of the contract, but the defendant committed breach thereof, necessitating the filing of the instant suit.

3. The defendant broadly denied the plaint allegations. The defendant denied having executed any agreement or having received earnest money of Rs.7,00,000. It was pleaded that agreement was got prepared alongwith receipt, but amount was not paid by the plaintiff to the defendant and accordingly, the defendant cancelled the agreement. Consequently, the agreement cannot be enforced specifically. It was also pleaded that defendant had rented out the suit property to the plaintiff through her husband. Various other pleas were also raised.

4. Learned Additional Civil Judge (Senior Division), Faridabad, vide judgment and decree dated 7.6.2010, decreed the plaintiff’s suit. First appeal preferred by the defendant has been dismissed by learned District Judge, Faridabad, vide judgment and decree dated 2.11.2010. Feeling aggrieved, defendant has preferred the instant second appeal.

5. I have heard learned counsel for the appellant and perused the case file.

6. The plaintiff herself appeared in the witness box as PW1 and examined Ramesh Kathuria as PW2 attesting witness of the agreement and Advocate Deva Nand as PW3, who drafted the said agreement. All of them have stated broadly according to the plaintiff’s version. On the other hand, the defendant himself appeared as DW1 and stated according to his own version. He also examined Advocate Daya Nand as DW2, who has stated that he had not drafted the aforesaid agreement. However, it was not plaintiff’s case that agreement was drafted by Advocate Daya Nand. On the other hand, it was pleaded that the agreement was drafted by Advocate Deva Nand (PW3). Defendant also examined three other witnesses, who broadly supported the defendant’s case.

7. Execution of the impugned agreement by the defendant has been proved by the plaintiff by leading cogent evidence. The plaintiff, besides herself appearing as her own witness, also examined one attesting witness of the agreement. The plaintiff has also examined the Advocate, who had drafted the agreement. Their statements are sufficient to prove due execution of the agreement. There is recital of payment of Rs. 7,00,000 in the agreement by the plaintiff to the defendant as earnest money. There is also separate receipt for the same, which has also been proved by plaintiff and her witnesses. On the top of it, the defendant has admitted his signatures on the agreement as well as on the receipt. In these circumstances, the onus shifted to