BASHESHAR NATH Vs. RADHA KISHAN

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree dated 15-12-1979 passed by the Additional District Judge, Kurukshetra, by which the appeal filed by the defendant-appellant was dismissed and the judgment and decree dated 4-9-1978 passed by the trial Court (decreeing the suit of the plaintiff-respondent) was upheld.

(2.) BRIEFLY stated, the facts of the case, as alleged by the plaintiff-respondent, are that on 2-2-1973 the defendant appellant contracted to sell his agricultural land to the extent of 870/224th share equivalent to 43 kanals 10 Marlas with all the rights for a consideration of Rs. 27,000/-, and executed an agreement to this effect; that the defendant-appellant had also received Rs. 7,000/- as earnest money from the plaintiff-respondent on the day of execution of the agreement for which the plaintiff-respondent obtained a separate receipt from him; that according to the agreement, the defendant-appellant was to execute and get the sale deed registered, in respect of the suit land, in favour of the plaintiff respondent on or before 1-2-1974; that the defendant-appellant was to receive the balance of the sale price at the time of registration of the sale-deed; that it was further agreed that, in case of default by the defendant-appellant, the plaintiff-respondent could sue for specific performance or, in the alternative, the defendant appellant was to pay twice the earnest money to the plaintiff-respondent; that the plaintiff-respondent was always ready and willing to perform his part of the contract and waited for the defendant-appellant in the office of the Sub-Registrar, Kaithal, on 1-2-1974 to give the balance sale price but the defendant-appellant did not deliberately turn up; that the plaintiff-respondent then got his presence marked through an affidavit duly attested by the Sub-Registrar, Kaithal; that the defendant-appellant had deliberately committed breach of the agreement as he was not willing and ready to perform his part of the contract; and that, therefore, the plaintiff-respondent filed the present suit for specific performance of the agreement.

(3.) THE suit was contested by the defendant-appellant. The defendant-appellant admitted the agreement to sell, as alleged, but stated that the same was not valid and that it was only for Rs. 22. 000/ -. The defendant-appellant disputed that the plaintiff-respondent was ready and willing to perform his part of the contract. According to the defendant-appellant, it was the plaintiff-respondent who was not ready and willing to perform his part of the contract and, before 1-2-1974, the plaintiff respondent approached him for declaring the contract as rescindable by saying that he did not intend to purchase the suit land and, therefore, the defendant-appellant did not reach the office of the Sub-Registrar. The defendant-appellant further alleged that the plaintiff respondent had received back a sum of Rs. 2,000/ after 1-2-1974 about 2 years ago and that the defendant-appellant had actually received only Rs. 2,000/- as earnest money and an excess amount was written in the agreement and receipt to ward off the exercise of right of pre emption by possible pre-emptors.