IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA-504-2016(O&M)

Mahender Singh ...Appellant(s)

Vs.

Rakesh Singh ...Respondent(s)

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The date when the judgment is reserved 28.11.2025 The date when the judgment is pronounced 05.12.2025 The date when the judgment is uploaded on the website Whether only operative part of the judgment is Full Judgment pronounced or whether the full judgment is pronounced CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA Argued by:- Mr. Munish Gupta, Advocate for the appellant.

Mr. P.R. Yadav, Advocate for the respondent.

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NIDHI GUPTA, J.

The defendant is in Second Appeal against the concurrent judgments and decrees of the learned Courts below whereby suit filed by the plaintiff/respondent for specific performance of Agreement to Sell dated 17.07.2006, has been decreed by both the Courts below.

2. It was the pleaded case of the respondent in the plaint that the appellant/defendant had entered into an Agreement to Sell dated

17.07.2006 with the plaintiff to sell land measuring 24 kanal 0 marla for total sale consideration of Rs.8,55,000/-. At the time of execution of Agreement to Sell, the defendant had received Rs.1,50,000/- as earnest money. It was pleaded that after execution of Agreement to Sell, the plaintiff had again made payment of Rs.2,50,000/- to the defendant on 25.07.2006 as part payment of sale consideration. In respect of this, an endorsement was made by the defendant on the back of Agreement to Sell, in the presence of witnesses. Thus, defendant had received total of Rs.4,00,000/- as earnest money. Target date for execution of Sale Deed was on or before for 31.12.2006. However, as 30.12.2006 and 31.12.2006 were public holidays, the plaintiff had gone to the Tehsil Office on 29.12.2006 to execute the Sale Deed along with balance sale consideration and other expenses. It was pleaded that plaintiff had waited for the defendant from 9 am till 5:30 pm. However, the defendant had failed to come present. The plaintiff had got his presence marked by swearing an affidavit before the Sub-Registrar, Mahendergarh. Thereafter, plaintiff had contacted the defendant who had stated that he would execute the Sale Deed on 01.01.2007. Since 01.01.2007 was a public holiday, plaintiff had remained present in Office of Sub-Registrar again along with balance sale consideration and other expenses on 02.01.2007. However, defendant again failed to come present. The plaintiff again got his presence marked by way of affidavit. It was pleaded that despite repeated requests, the defendant had refused to execute the Sale Deed. Hence, plaintiff had instituted the present suit on 01.02.2007.

3. Upon notice, the defendant had put in appearance and resisted the suit by filing written statement inter alia stating therein that the Agreement to Sell dated 17.07.2006 and receipt of earnest money of Rs.1,50,000/-were admitted. It was also admitted that target date was fixed to be on or before 31.12.2006. It was however denied that defendant had received further payment of Rs.2,50,000/- on 25.07.2006. It was denied that plaintiff was always ready and willing to perform the contract. It was contended that the plaintiff had failed to prove that he had the financial capacity to execute the contract. It was averred that failure of plaintiff to show possession of balance sale consideration would amount to forfeiture of the earnest money and consequent cancellation of the Agreement to Sell. On the contrary, defendant always remained ready and willing to perform his part of the contract and had got his presence marked before the Sub- Registrar on 29.12.2006 as also on 02.01.2007. It was averred that a Legal Notice dated 19.01.2007 was also served by the defendant upon the plaintiff thereby cancelling the Agreement. Accordingly, dismissal of the suit was prayed for.

4. On the basis of pleadings of the parties, following issues were framed: -

“1. Whether the defendant received an amount of Rs. 2,50, 000/- as earnest money in pursuance of agreeme