JAWAHAR LAL Vs. SURENDER KUMAR

JUDGEMENT

(1.) Feeling aggrieved against the impugned judgment and decree dated 16.12.2014 passed by the learned District Judge, whereby first appeal of the defendant was partly allowed, modifying the decree of the learned trial court to the extent that plaintiff shall be entitled for refund of the earnest money along with interest and not for the decree of specific performance, plaintiff has approached this Court by way of present regular second appeal.

(2.) Brief facts of the case, as recorded by the learned trial court in para 1 of its judgment, are that the defendant was owner in possession of the suit land described in para No. 1 of the plaint measuring 251 kanal 17 marla to the extent of 800/5037 share i.e. 40 kanals situated in village Jaitpur Sheikhpur Tehsil and District Rewari as per the jamabandi for the year 2002-2003. Plaintiff pleaded that on 23.11.2004, defendant had entered into an agreement to sell for 5 acres of land for total sale consideration of Rs. 17,50,000/- at the rate of Rs. 3,50,000/- per acre. The agreement was effected in presence of the witnesses which was duly scribed at the instance of the defendant by deed writer Sunil Kumar. Plaintiff pleaded that at the time of agreement, Rs. 6,37,500/- were paid as earnest money in the presence of the witness and defendant had made an endorsement in that regard upon the agreement itself. Plaintiff pleaded that as per the terms and conditions of the agreement, the last date of execution of the sale deed was affixed as 22.10.2005 and so it was agreed that before that, the plaintiff will be entitled to get the sale deed registered and in case the defendant fails, the defendant will pay double amount of the earnest money and plaintiff will be at liberty to get the sale deed executed from the court.

(3.) It was pleaded that on 30.12.2004, the plaintiff had further paid Rs. 3,75,000/- to the defendant and another endorsement was made on the agreement itself of the receipt of this amount. Plaintiff pleaded that he was always ready and willing to perform his part of agreement and get the sale deed executed but the defendant failed to do the same. On 2.9.2005, defendant offered to settle the aforesaid agreement and offered to pay double amount of the earnest money i.e. Rs. 20,25,000/- and on that account, defendant issued cheque No. 987762 dated 2.9.2005. It was pleaded that the defendant had promised that after clearance of the cheque, he will further pay Rs. 25000/- to the plaintiff and both the parties shall cancel or settle the agreement. Plaintiff pleaded that the aforesaid cheque was dishonoured for insufficient fund and thus the agreement was still enforceable.