(1.) Feeling aggrieved against the impugned judgment of reversal dated 4.10.2016 passed by the learned first appellate court, granting alternative relief for recovery of earnest money along with interest, plaintiff has approached this Court by way of instant regular second appeal.
(2.) Brief facts of the case, as noticed by the learned first appellate court in para 2 of its impugned judgment, are that suit for confirmation of possession as owner of double storey shop situated in the area of village Urmur, Tehsil Dasuya District Hoshiarpur shown red in the site plan for specific performance of the agreement to sell dated 3-2-2004 was filed by the plaintiff. It was submitted that defendant was owner of property in dispute and he vide agreement to sell dated 3-2-2004 agreed to sell the same to the plaintiff for total consideration of Rs.4 lacs. An amount of Rs.2,65,000/- was paid as earnest money and it was stipulated that sale-deed would be executed on or before 3-2-2005. The plaintiff remained ready and willing to perform his part of the agreement but the sale deed could not be executed on the date fixed as defendant received another sum of Rs. 1,00,000/- on 25-8-2005 and date for execution and registration of sale deed was extended upto 10-7-2006 and an endorsement to this effect was made on the back of the original agreement to sell and possession of shop was handed over to the plaintiff. The amount of Rs.3,65,000/- had already been paid to the defendant. The plaintiff remained present in the office of Joint Sub Registrar Tanda on 10-7-2006 along with balance sale consideration but the defendant did not turn up. The plaintiff got his presence marked by getting an affidavit attested from the Executive Magistrate Tanda. The plaintiff was entitled to execution of the sale deed in his favour by specific performance of agreement to sell dated 3-2-2004. In case the plaintiff was not found entitled for execution of sale deed and then he was entitled to alternative relief for recovery of Rs.4,00,000/- along with interest from the date of payment. Plaintiff always remained ready and willing to perform his part of agreement to sell and was still ready and willing to perform his part of agreement. Despite repeated requests of the plaintiff, the defendant did not execute the sale deed in favour of the plaintiff, as per the agreement.
(3.) Having been put to notice, defendant appeared and filed his contesting written statement, raising more than one preliminary objections. It was pleaded on behalf of the defendant that he never intended to sell the property to the plaintiff. He intended only to take loan from the plaintiff. He also alleged that the endorsement dated 25.8.2005, on the back page of the alleged agreement to sell, was a forged and fabricated one.