AMIT ARYA Vs. KAMLESH KUMARI

JUDGEMENT

(1.) The present regular second appeal has been directed the judgment and decree dated 22.04.2013 passed by the Additional District Judge, Panchkula whereby an appeal preferred by the respondent against the judgment and decree dated 14.05.2011 passed by the Additional Civil Judge (Senior Division), Panchkula has been partly allowed and as a result, the suit of the appellant for specific performance of agreement to sell has been dismissed and he has been granted alternative relief for recovery of earnest money along with interest.

(2.) Facts relevant for disposal of the present appeal are that the respondent entered into an agreement to sell dated 11.12.2004 for sale of property measuring 2 biswas 10 biswasi situated in Hadbast No. 393 Khata No. 68/119, Khasra No. 223/6 to the extent of 1/4th of total 1 kanal 10 marlas situated in Kalka, Tehsil Kalka District Panchkula. Out of total sale consideration of Rs. 9,05,000.00, an amount of Rs. 1,00,000.00 was paid as an earnest money at the time of execution of the agreement. The last date for execution of sale deed was fixed as 10.03.2005. It was agreed that in case the respondent failed to get the sale deed executed/registered, the appellant was entitled to recover Rs. 2,00,000.00, double of the earnest money. It is averred that the appellant was always ready and willing to perform his part of the contract. On 10.03.2005, he remained present along with sale consideration and other expenses for registration of sale deed in the office of Sub Registrar, Kalka but the respondent failed to turn up for execution of sale deed. He got his presence marked by getting an affidavit attested. He also prepared a challan for purchase of stamp papers valuing Rs. 72,400/ -, got it passed from the concerned Treasury Officer. The appellant served a legal notice dated 29.11.2005, calling upon the respondent to execute the sale deed on/or before 06.12.2005 but the respondent sent reply to the legal notice wherein execution of the agreement and date fixed for registration of sale deed were admitted but it was wrongly claimed that the earnest money stood forfeited.

(3.) The respondent filed the written statement, inter alia, challenging maintainability of the suit. She admitted that the agreement to sell dated 11.12.2004 was signed by her but pleaded that at that time, the agreement was blank and was filled later. The appellant failed to turn up before Sub Registrar, Kalka on 10.03.2005, whereas the answering respondent remained present in the office of Sub Registrar, Kalka throughout the day and got her presence marked by way of affidavit. The appellant failed to perform his part of the contract and earnest money stood forfeited as mentioned in the reply to the notice.