A contract is not contingent under the Indian Contract Act where the primary obligation is performable and the specified condition is waived; furthermore, an attorney holder may competently testify regarding acts or transactions performed within their personal knowledge under the power of attorney.

AMARINDER SINGH GREWAL, J.

1. The defendant is the appellant before this Court, challenging the judgment and decree dated 22.07.1997 passed by the learned Additional Civil Judge (Senior Division), Karnal (hereinafter referred to as the learned trial Court) whereby the suit for specific performance with consequential relief of possession, filed by the plaintiff-respondent has been allowed and the judgment and decree dated 15.11.1999 passed by the learned Additional District Judge, Karnal (hereinafter referred to as the learned 1st Appellate Court) vide which the appeal preferred by the defendant against the aforesaid judgment and decree passed by the learned trial Court, has been dismissed.

2. For the sake of convenience, the parties shall be referred to in terms of their status before the trial court.

3. Succinctly, the facts of the case are that on 03.11.1989, the defendant, who was in possession of land measuring 4 kanals 5 marlas, being 85/677 share out of total land measuring 33 kanals 17 marlas situated at village Daha, Tehsil and District Karnal had entered into an agreement to sell the said land in favour of the plaintiff at a sale consideration of ₹85,000/- per acre, and received ₹20,000/- as earnest money. The total consideration amount came to ₹45,170/-, with the stipulation that the sale deed would be executed within two months after partition of the land by metes and bounds, and the balance consideration was to be paid at the time of registration. However, despite lapse of over 16 months from the date of agreement, the defendant failed to get the land partitioned in terms thereof, whereas, the plaintiff remained ready and willing to perform her part of the contract and repeatedly called upon the defendant through legal notices to execute and register the sale deed. Subsequently through another legal notice dated 09.03.1992, the plaintiff clarified that she was willing to get the sale deed executed and registered even without prior partition of the land and thereby waived off the said condition. It was further asserted that the plaintiff was having remaining sale consideration amount along with requisite stamp duty, registration charges and other incidental expenses necessary for execution of the sale deed, however, despite repeated requests and notices, the defendant failed to perform his part of the contract. Thereafter, on 06.05.1992, the plaintiff through her Special Power of Attorney holder Shri Hukam Chand Sharma again issued a registered notice calling upon the defendant to remain present before the office of Sub Registrar, Karnal on 21.05.1992 for execution and registration of the sale deed in question, while waiving off the condition of prior partition. In pursuance thereof, the said Special Power of Attorney holder appeared before the Sub Registrar, Karnal on 21.05.1992 along with the balance sale consideration and requisite stamp and registration charges. He also moved an application before the Sub Registrar for marking his presence throughout the day. However, the defendant failed to appear for execution of the sale deed. Thereafter, another legal notice dated 27.07.1992 was sent to the defendant through registered post, which was allegedly not accepted by the defendant. Consequently, the plaintiff instituted the present suit seeking specific performance of agreement to sell dated 03.11.1989 and in the alternative prayed for payment of Rs.45,170/-, being the total sale consideration amount including already paid earnest money of Rs 20,000/-.

4. Upon issuance of summons, the defendant appeared through his counsel and contested the suit by f