Continuous readiness and willingness of the plaintiff to perform their part of the contract is a mandatory prerequisite (sine qua non) for the grant of specific performance of an agreement to sell.

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VIRINDER AGGARWAL , J . (Oral)

1. This Regular Second Appeal (for short to be referred as “RSA”) is directed against the concurrent findings recorded by the Courts below, whereby the learned First Appellate Court, vide judgment and decree dated 14.05.1999, dismissed the appeal preferred by the appellant-plaintiff and affirmed the judgment and decree dated 15.05.1997 passed by the learned Additional Civil Judge (Senior Division), Fazilka, whereby the suit for specific performance of agreement to sell dated 08.10.1987 in respect of land measuring 17 kanals 12 marlas situated in Village Chak ₹ Ariyan Wala, or in the alternative for recovery of 38,000/- along with interest @ 24% per annum, was dismissed.

2. In a succinct exposition of the foundational facts, the appellant-plaintiff instituted the suit asserting that the respondent-defendant had executed an agreement to sell qua the suit land for a total ₹ ₹ consideration of 18,000/- per acre, out of which a sum of 6,000/- was allegedly paid as earnest money at the time of execution of the agreement dated 08.10.1987. It was stipulated that the balance sale consideration would be paid at the time of execution and registration of the sale deed, which was to be executed within one month of conferment of proprietary rights upon the defendants. It was further pleaded that upon conferment of such rights, the defendants refused to execute the sale deed, necessitating the institution of the present suit.

3. The respondent-defendant contested the suit by specifically denying the execution of any agreement to sell and the alleged receipt of earnest money and prayed for dismissal of the suit.

4. The plaintiff, in replication, categorically traversed the averments and objections raised in the written statement and reaffirmed the pleadings set out in the plaint. Upon a meticulous examination of the pleadings on record and the rival submissions advanced by the parties, the learned Trial Court identified and crystallised the following issues for adjudication, so as to ensure a precise, structured, and legally coherent determination of the controversy, which are as under:-

1. Whether defendant executed agreement to sell dated 8.10.97 in favour of plaintiff for consideration? OPP

2. Whether plaintiff was ready and willing to perform his part of the contract? OPP.

3. Whether plaintiffs entitled to relief of specific performance of agreement to sell?OPP

4. Whether in the alternative plaintiff is entitled to recover the amount of Rs.38,880/-?OPP.

5. Whether suit is barred under order 2 Rule 2 C.P.C. ?OPD.

6. Whether suit is not maintainable? OPD.

7. Whether plaintiff is estopped by his own act and conduct from filing the instant suit ?OPD

8. Whether suit is time barred ? OPD

9. Relief.

5. Both parties were afforded full opportunity to lead evidence pursuant to the issues framed. Upon appreciation of the material on record and hearing learned counsel for the parties, the learned Trial Court partly decreed the suit for recovery of earnest money along with interest @ 6% per annum from the date of agreement till realization, while declining the relief of specific performance. The appeal preferred by the appellant-plaintiff was dismissed, thereby affirming the findings of the Trial Court.

5.1. Being aggrieved by the concurrent judgments and decrees of the Courts below, the present appeal has been preferred. The appeal was admitted for hearing vide order dated 27.05.2002. Respondent-defendant, despite service, did not enter appearance and was accordingly proceeded ex parte vide order dated 28.09.2001.

6. I have heard learned