R.V. Raveendran, J. - (1.) The appellant (Man Kaur, who died during the pendency of this appeal and is represented by her Legal Representatives) was the defendant in a suit for specific performance of an agreement of sale, filed by the respondent. For convenience the appellant and respondent will also be referred by their ranks in the suit as defendant and plaintiff respectively.
(2.) The appellant Man Kaur was the owner of the suit property, a plot admeasuring 1000 sq.yards with the building thereon, identified as Annexe No 508 situated in Sector-18B, Chandigarh. The respondent-plaintiff was, at all the relevant points of time, a Non-Resident Indian living in United Kingdom. An agreement of sale dated 20.10.1978 was entered between defendant represented by her husband and attorney holder Kartar Singh, as vendor, and plaintiff represented by his attorney holder Paramjit Singh, as purchaser. The material terms of the said agreement were: (i) The defendant shall sell the suit property to plaintiff for a consideration of Rs. 1,50,000/-. (ii) As the premises was tenanted the defendant was liable to deliver vacant possession of only a small portion which was in her occupation. If the vendor was able to get the tenant vacated and deliver vacant possession of the entire premises, then the sale price shall be Rs. 1,60,000/-. (iii) A sum of Rs. 10,000/- was paid in cash as earnest money by the attorney holder of the purchaser to the attorney holder of the vendor. (iv) The sale had to be completed by 20.12.1978 and the balance sale price shall be paid at the time of registration of the sale deed. (v) The vendor had to deliver at the time of registration of the sale deed, her title deed, as also the NOC from the Estate Office, Chandigarh, permission for the sale under Urban Land (Ceiling and Regulation) Act 1976, and Clearance Certificate under Section 230A of the Income Tax Act, 1961 and other relevant documents if any. (vi) If the vendor committed default, he had to pay double the amount of earnest money to the purchaser and if the purchaser committed any default, the sum of Rs. 10,000/- paid as earnest money would stand forfeited; and (vii) The bargain was entered through the property dealer -- M/s R.P. Sethi & Co. to whom both the parties should pay 2% commission on the total price; and in the event of default, the defaulting party shall pay 4; commission. The agreement of sale was signed by the attorney holder of the vendor and attorney holder of the purchaser and witnessed by Hari Singh (Property Dealer) and Balraj Singh (property dealer carrying on business under the name and style of M/s R.P. Sethi & Co.). The agreement also contained an endorsement by Kartar Singh acknowledging the receipt of Rs. 10000/- as earnest money in addition to another sum of Rs. 1500/-.
(3.) On 25.4.1980 the respondent (represented by his attorney holder Jagtar Singh Sangha under power of attorney dated 1.3.1980), filed a suit for specific performance of the said agreement of sale, against the appellant. The plaint after referring to the terms of the agreement of sale, averred that the bargain was struck through property dealer Balraj Singh of M/s. R.P. Sethi & Co; that the time for performance was extended from time to time till 7.6.1979; that the defendants attorney holder and plaintiff reached Chandigarh on 7.6.1979; that though defendants attorney holder stated that he had come to Chandigarh to execute the sale deed, he did not go over to the Sub-Registrars office nor executed the sale deed; that plaintiff remained present in the Sub-Registrars office at Chandigarh, and recorded his presence on 7.6.1979 by presenting an application and getting an acknowledgement from the Sub-Registrar; that after 7.6.1979, neither the defendant nor her attorney holder Kartar Singh came to Chandigarh; that they did not also contact the plaintiff or the property dealer Balraj Singh; and that the repeated attempts of the property dealer Balraj Singh to contact defendant were futile. The plaint also averred that the plaintiff was always ready and willing to perform his part of the contract and get the sale deed registered by paying the balance consideration; and that in spite of a notice dated 5.3.1980 calling upon the defendant to complete the sale, the defendant had failed to execute the sale deed. The plaintiff therefore prayed for specific performance of the agreement of sale dated 20.10.1978 or in the alternative, if he was found not entitled to specific performance, then for a decree of recovery of Rs. 21,500/- (that is Rs. 11500/- paid to defendants attorney holder and Rs. 10000/- as liquidated damages) with costs.;