SHRUTI Vs. BALDEV SINGH AND OTHERS

JUDGEMENT

(1.) This Regular Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the defendant/appellant against the judgments and decrees concurrently passed by the learned Courts below, whereby the suit of the plaintiff/respondent No.1 has been partly decreed to the extent to refund a sum of Rs. 3,50,000/- received by her as earnest money.

(2.) Brief facts of the case are that Shri Swaran Pal Singh, the predecessor-in-interest, of defendants No.1 and 2 had agreed to sell complete first floor of the double storied building comprised in Khata/Khatauni No.91/212 min, Khasra No.2993/652, measuring 402 square metres, situated in Mauja Thodo, Solan, Tehsil and District Solan, (H.P.) (hereinafter shall be referred to as the suit property). It was averred by the plaintiff that the price of the property was settled to be Rs. 9,50,000/- and Rs. 3,50,000/- were paid towards earnest money at the time of the agreement dated 04.11.2004. It was further averred that later on, the defendants No.1 and 2 on succeeding their father executed a sale deed of the property on 08.06.2007 in favour of defendant No.3 after hatching a conspiracy with him in order to deprive the plaintiff of the property. The plaintiff averred that he was ready and willing to perform his part of agreement, but the defendants lingered on the matter on one pretext or the other and lastly refused to execute the sale deed. It was also averred that legal notice was served upon the defendants on 09.11.2012, but to no avail. As per the plaintiff, the cause of action accrued in his favour when agreement to sell was executed and lateron when the sale deed was not registered after demarcation and when defendants No.1 and 2 sold the property to defendant No.3. On these averments, the plaintiff prayed for specific performance of the agreement to sell dated 04.11.2004 and at the same time sought declaration to the effect that sale deed executed in favour of defendant No.3 be declared null and void. In the alternative, he prayed for recovery of Rs. 5,33,750/- alongwith interest against the defendants.

(3.) The suit was contested by defendants No.1 and 2 on the plea that earnest money stood forfeited on the failure of the plaintiff to perform his part of agreement. On merits, the agreement to sell was admitted with the clarification that time was the essence of contract and sale deed was to be executed within six months on the payment of remaining sale consideration by the plaintiff. It was averred that further stipulation was to the effect that in case sale deed was not executed within six months, then the earnest money was to be forfeited in case the plaintiff was at fault. It was also averred that the plaintiff did not come forward as per agreement and thus the agreement came to an end and, therefore, defendants No.1 and 2 in the year 2007 executed a sale deed in favour of defendant No.3 for consideration. It was lastly averred that plaintiff was never ready and willing to perform his part of agreement and, therefore, the earnest money stood forfeited. Hence, the plaintiff is neither entitled to decree for specific performance of contract nor for recovery of earnest money.