SHAMSHER SINGH Vs. NAVEEN KUMAR AND ORS.

JUDGEMENT

(1.) Challenge in the present appeal is to the concurrent findings of the fact, whereby suit for specific performance of the agreement to sell dated 26.07.2003 Ex.P1 has been partly decreed, i.e. alternative relief of earnest money of Rs. 1,70,000/- has been ordered to be refunded along with 6% interest. Mr. Ashok Giri, learned counsel appearing on behalf of appellant submits that there was stipulation in the agreement to sell that vendee had to pay a sum of Rs. 4,65,000/- to J&K Bank out of total sale consideration of Rs. 6,10,000/- and the balance i.e. Rs. 1,45,000/- has to be paid to the vendor on or before 30.09.2003. Having not done so, the aforementioned earnest money had been forfeited. Both the Courts below have committed illegality and perversity in rendering findings on the terms and conditions of the agreement to sell and thus, the substantial questions of law arises.

(2.) Mr. Rajeshwar Singh Thakur, learned counsel appearing on behalf of respondent No.1 says that it was not the condition precedent to clear the bank dues for seeking registration and execution of the sale deed. Since, bank had already been impleaded as defendant No.2 in the suit, the respondentplaintiff would have got the sale deed executed on deposit of aforementioned outstanding dues to the bank in execution of the decree.

(3.) It is a matter of record that bank had initiated the proceedings under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) and taken over the possession of the land mortgaged with it, therefore, Courts below had ordered refund of the earnest money.