VINOD KUMAR TANWAR Vs. JAI BHAGWAN

JUDGEMENT

(1.) Defendant has filed this second appeal under Section 100 CPC, aggrieved by money decree passed in favour of the plaintiff-respondent by the Courts below. The plaintiff-respondent had filed a suit for recovery of principal amount of Rs. 18,000/- and interest of Rs. 9,450/- along with future interest on the ground that the defendant had entered into an agreement of sale with the plaintiff to sell his plot measuring 200 sq. yards for a sum of Rs. 30,000/- and received earnest money of Rs. 5,000/- by executing a writing on his letter pad. The defendant-appellant was asked to execute the sale deed on different occasions but he failed to do so, as such, a notice was sent to the defendant which he replied levelling allegations against the plaintiff and mentioning that the cost of the plot mentioned therein has doubled the amount settled between the parties. In view of above background, the plaintiff-respondent sought refund of the earnest money of Rs. 18,000/- along with interest @ 18 per cent per annum. The defendant-appellant contested the suit claiming that the plaintiff had entered into an agreement of sale with defendant for purchase of plot on 14.3.2002 and he paid earnest money of Rs. 5,000/-. The date of payment of balance sale consideration was 15.5.2002, but the plaintiff-respondent failed to pay the balance sale consideration uptil 15.5.2002 and requested for 5-7 days to arrange the money and to get the sale deed registered. The time was extended by the defendant-appellant with a specific condition that if money was not paid within 5-7 days, the earnest money would be forfeited. The date to execute the sale deed seems to be extended by 31.5.2002. The plaintiff paid a sum of 13,000/- and prayed for 15-20 days more time to pay the remaining amount. Period for payment of remaining amount of Rs. 12,000/- was fixed up to 30.6.2002, but the plaintiff neither paid the balance amount nor approached the defendant for execution of the sale deed. The defendant had sent a message to the plaintiff, but the plaintiff did not get the sale deed executed. Meanwhile, the cost of the plot has doubled, as such, the plaintiff having violated the conditions of agreement of sale, his earnest money was liable to be forfeited. The plaintiff had sent a notice through his counsel to which the defendant had submitted the reply.

(2.) On the pleadings of the parties, the following material issues was framed:-

(3.) The Courts below, on appreciation of evidence, arrived at a conclusion that the agreement had been entered into between the parties vide writing EX.P1. In writing EX.P1, dated 14.3.2002, it was mentioned that if the plaintiff did not execute the sale deed on 15.5.2002, his earnest money would be forfeited but in the subsequent writing dated 31.5.2002, there is no mention of any condition regarding forfeiture of earnest money, in case the sale deed is not executed by 30.6.2002. In view of said circumstances, there was no justification for forfeiture of earnest money of the plaintiff by the defendant. Besides this, the Courts below arrived at a conclusion that the defendant has also not been able to establish that he had ever gone to the office of Sub Registrar on 30.5.2002 for execution of the sale deed. In view of defendant having failed to establish that he was willing to perform his part of the contract, the earnest money could not be said to have been forfeited.