R. F. Nariman, J. - (1.) In the present appeal, despite service of notice, nobody appears for the respondent. We have heard Dr. (Ms.) Pooja Jha, learned counsel appearing for the appellant.
(2.) The High Court, in the present appeal, has, by the impugned judgment dated 03.02.2017, set aside the concurrent judgments of the Courts below, and allowed the appeal of the erstwhile defendant, who is the respondent before us, and hence, set aside the decree for specific performance that was passed in the plaintiff's favour.
(3.) By an agreement to sell dated 22.09.2002, the suit-property was to be sold for a sum of Rs.3,65,000/-. Certain clauses of the agreement are important and are set out hereinbelow: "1. The sale price of the property mentioned in the schedule hereunder shall be Rs.3,65,000/-(Rupees Three Lakhs and Sixty Five Thousand only).2. The party of the second part has paid a sum of Rs.5,000/-(Rupees Five Thousand only) towards advance by cash and the party of the first part hereby admit and acknowledge the receipt of the same.3. The balance sale consideration shall be paid by the party of the second part to the party of the first part within three months from today. The party of the first part agrees to execute sale deed on the day on which the balance sale consideration is paid.4.The party of the second part agrees to pay part of the sale consideration of Rs.60,000/-(Rupees Sixty Thousand only) to the party of the first on or before 10th day of October.5. The party of the first part had handed over the original title documents to the mortgagee and the party of the second part shall settle the loan, receive the documents from the mortgagee and keep the same in his custody. ..............................................................................................................................................................................................8. If there is no encumbrance to the schedule property and when the party of the second part is willing to pay the balance sale consideration, the party of the first shall execute sale deed in favour of the party of the second part or her nominee. If the party of the first part refuses to do so, the party of the second part is entitled to take legal action.";