Ashok Kumar v. Narinder Kumar

-1IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision.01.05.2019 Ashok Kumar ...Appellant Vs Narinder Kumar ..Respondent CORAM:HON'BLE MR. JUSTICE AMIT RAWAL

Present:

Mr. Gopal Sharma, Advocate for the appellant.

-.- AMIT RAWAL J. (ORAL) C.M. No.1806-C of 2016 For the reasons stated in the application, delay of 349 days in re-filing of the appeal is condoned.

Application is allowed.

Main case The present regular second appeal is directed against the concurrent finding of fact whereby suit of the appellant-plaintiff seeking specific performance of agreement to sell dated 31.10.2005 agreed to be sold @ `1250/- per sq. yard against the payment of `40,000/- as earnest money by fixing the date as 31.5.2006 for execution of the sale deed, has been dismissed by the trial Court and affirmed in appeal.

The plaintiff claimed that defendant entered into agreement to sell and aforementioned date was fixed for execution of the sale deed after receipt of earnest money but the defendant did not come forward, resulting into issuance of legal notice dated 8.12.2006 calling upon the defendant to appear but he did not, resulted into

-2filing of the suit.

Defendant admitted agreement to sell but stated that readiness and willingness of the plaintiff was conspicuously wanting. He had been ready and willing throughout but plaintiff did not come forward nor he had sufficient balance.

Both the parties led in extensive evidence.

Mr. Sharma, learned counsel appearing on behalf of the appellant submitted that the Courts below ought to have confined the decree to return of the earnest money, if not for specific performance, as the suit was filed within the period of limitation. It is the defendant, who had not putting up the matter and did not come forward. Plaintiff waited during all this period and realizing that limitation was approaching near, instituted the suit. I am afraid aforementioned argument of Mr. Sharma is not sustainable, as terms and conditions of the agreement postulates forfeiture of money on account of non-performance of the agreement to sell. No explanation has come forward in not appearing before the Registrar on 31.05.2006, as only an affidavit attested by the notary has been placed on record. In such circumstances, the affidavit of 18.12.2006 would be meaningless. Explanation of readiness and willingness throughout till filing of the suit on 22.05.2009 is also conspicuously wanting.

In view of such circumstances, arguments of Mr. Sharma have not been able to cut the ice to bring the case within the realm of illegality and perversity to form a different opinion than the one already arrived at by the Courts below, much less, no substantial

-3question of law arises for determination by this Court. No ground for interference is made out. Resultantly, the second appeal is dismissed. (AMIT RAWAL) JUDGE May 01, 2019 Pankaj* Whether speaking/reasoned Yes Whether reportable No