C A V Judgment

Per Sanjay S. Agrawal, J.

1. This appeal has been preferred by the plaintiff under Section 96 of the Code of Civil Procedure, 1908, questioning the legality and propriety of the judgment and decree dated 22.07.2016 passed by the First Additional District Judge, Balod in Civil Suit No.18-A/2014, whereby, the learned trial Court has decreed the plaintiff’s claim in part entitling him for the refund of the earnest amount of Rs.1,01,000/- with 7% interest per annum from the date of institution of the suit till its realization, while refusing to grant him a decree for specific performance of contract. The parties shall be referred hereinafter as per their description before the trial Court.

2. The facts, which are essential for adjudication of this appeal are that a suit for specific performance of contract was instituted by the plaintiff submitting, inter alia, that an agreement to sale was executed in his favour by the defendant on 06.09.2011 agreeing to alienate the part of her land admeasuring 2805 sq.ft. of old Abadi land bearing Khasra No.714-716, in which, a Kachha house was constructed over an area of 1052.5 sq.ft. as described in detail in plaint Schedule-A, for a consideration of Rs.20,01,000/- upon receiving an earnest amount of Rs.1,01,000/-, in cash. According to the terms and conditions stipulated therein, a registered deed of sale was required to be executed by 31.03.2012 either in his favour or in the name of a person nominated by him. It is pleaded by the plaintiff that he was always ready and willing to get the sale-deed registered in pursuance to the alleged agreement to sale but, despite of his several oral requests being made, it was not executed, although, an assurance was given to him by the defendant, therefore, a notice dated 06.03.2012 was issued to her asking for execution of the registered deed of sale and in response to the said notice, the defendant has cancelled the same by way of reply dated 26.03.2012, as the suit land and the house alone is available with her in the city of Balod, while returning the Account payee Cheque for the said earnest amount. Further contention of the plaintiff is that he appeared before the office of Sub-Registrar on 26.03.2012 for execution of the registered deed of sale as per the direction of the defendant but, she did not appear deliberately and instead, informed orally for some more time so as to execute the sale-deed in his favour and, therefore, he has not instituted the suit immediately thereafter, but when she did not show her willingness to execute the same, a notice dated 01.01.2014 was issued to her and despite of asking for the same, she failed to execute the registered deed of sale in pursuance to the alleged agreement to sale, which compelled him for the institution of the suit in the instant nature, instituted on 28.04.2014.

3. While contesting the aforesaid claim, it was pleaded by the defendant that the suit land and the house alone is available to her in the city of Balod and the alleged agreement to sale was executed for alienation of it so that she could purchase the house in the city of Durg, as other of her family members are residing there and, since the accommodation is not found to be available there owning to the price escalation and as they are not in a position to purchase the same, therefore, while returning the alleged earnest amount through Account payee Cheque, the alleged agreement to sale was cancelled on 26.03.2012 by way of her said reply dated 26.03.2012. It is contended further that despite cancellation of the alleged agreement to sale on 26.03.2012, the plaintiff kept silent for a considerable period of over more than 1 year and 9 months, and issued a legal notice only on 01.01.2014 calling upon her to complete the sale in his favour within the period of 15 days, though, he had never requested for execution of the sale after its cancellation on 26.03.2012, therefore, the suit as framed and instituted on

28.04.2014 is liabl