IMPORTANT POINT
Agreement to Sell – Acceptance of earnest money amounts to admission on behalf of vendor of part performance of contract on part of vendee.

JUDGMENT

This Civil 1st Miscellaneous Appeal in terms of Order XLIII Rule 1 of the Code of Civil Procedure, 1908 (CPC, for short) has been preferred, by virtue of which, challenge has been thrown to order dated 31.05.2022 passed by learned Additional District Judge, Jammu (hereinafter to be referred as trial court) in file No. 13/Civil Suit/2021 titled Sh. Parshotam Singh v. Amarjeet Singh and another, vide which application filed by the appellant for interim relief has been dismissed.

2. Before a closer look at the grounds urged in the memo of appeal, it shall be apt to give an overview of the facts giving rise to the present case.

3. The appellant laid a Suit for Specific Performance of Agreement to Sell dated 23.12.2020 in the trial Court stating inter alia that agreement to sell was executed and duly notarized between him and the respondents whereby respondents agreed to sell the suit land measuring 08 kanals and 12 marlas comprising Khasra No. 329 situate at Village Phinder, Tehsil R. S. Pura in his favour for a sale consideration of Rs.16,50,000/- (rupees sixteen lacs and fifty thousand) per kanal. The appellant, at the time of execution of agreement to sell, paid an earnest amount of Rs.5.00 lacs, which was accepted by the respondents. As per the Agreement in question, the appellant was obliged to pay the balance sale consideration within six months, at the time of registration of sale deed.

4. According to the appellant, he approached the respondents on various occasions in the month of June, 2021 for execution of sale deed and requested him to obtain Fard Intikhab from the concerned revenue authorities, but respondents sought some time to procure revenue extracts. It is allegation of the appellant that respondents not only delayed the execution of formal deed on lame excuses, but tried to enter into some negotiations with respect to the suit land with some unknown persons. It has been asserted by the appellant that he has always showed his readiness and willingness to purchase the suit schedule land but it were the respondents who delayed the execution of sale deed on one pretext or the other.

5. The respondents entered appearance in the trial Court and filed written statement whereby they are primarily affront with the contention that since the appellant/plaintiff could not arrange the balance sale consideration, therefore, he had not shown readiness and willingness on his part to perform the agreement in question. It is pertinent to mention that respondents have also contended that they are still ready to execute the sale deed, in case, appellant pays the balance sale consideration.

6. Alongside the suit, appellant had filed an application for temporary injunction. Initially vide order dated 23.06.2021, learned trial Court directed the parties to maintain status quo qua the suit land. However, on consideration of pleadings of the parties, learned trial Court vide impugned order has dismissed the said application for temporary injunction on the predominant premise that since time is the essence for specific performance of a contract and appellant has failed to pay the balance sale consideration, therefore, there was no readiness and willingness on his part to execute the sale deed.

7. Appellant has assailed the impugned order primarily on the ground that performance of a contract is a mixed question of law and fact and learned trial Court by virtue of impugned order has virtually decided the suit, which is not permissible under law. According to the appellant, it were the respondents who failed to perform their part of contract as they failed to produce the relevant revenue extracts necessary for execution of the sale deed.

8. Heard arguments and perused the file.

9. While learned counsel for the appellant has reiterated the grounds urged in the memo of appeal, learned counsel for respondents on the rival side has argued that it is apparent from the trial Court record as also the impugned order that since appellant f