- (1.) The present appeal has been filed by defendant challenging the judgment and decree dated 25.03.2013 passed by learned Additional and District Judge, SAS Nagar, Mohali, whereby his appeal challenging the judgment and decree dated 27.05.2009 passed by Additional Civil Judge (Sr. Divn.), Dera Bassi decreeing the suit of the plaintiff for recovery of Rs. 11,88,000/- along with interest @ 6% per annum, was dismissed. Brief facts of the case necessary for adjudication of the instant appeal are that an agreement to sell dated 19.4.2000 was executed by the parties, wherein, it was agreed by the appellantdefendant that he would arrange sale of 12 bighas of land comprised in Khewat/Khatuni No. 91/143, Khasra Nos. 655(4-0), 656(4-0), 657(2-16), 1030/658(0-8), 1032/659(0-8), 1034/660(0- 8), situated in village Nabha, Tehsil Rajpura, District Patiala, for a total sale consideration of Rs. 68,00,000/-. A sum of Rs. 11,00,000/- was paid in two installments by way of earnest money i.e. Rs. 7,00,000/- at the time of execution of the agreement to sell dated 19.4.2000 and the balance amount of Rs. 4,00,000/- on 1.5.2000. Both the learned counsel have drawn my attention to Ex. P1 i.e. Agreement to sell dated 19.4.2000. Relevant conditions contained in the said agreement to sell are extracted herein below :- 4. That the said seller shall obtain Income Tax Clearance Certificate from the Income Tax Department. 8. That the above said seller shall arrange at his own level the registration of the sale deed directly from the owners of the land in person or through their General Power Attorney, in favour of the purchaser. 9. That the above said seller shall arrange affidavits duly attested by the Executive Magistrate to the effect that their GPA is legally operative and has not been revoked or cancelled, before the registration of the sale deed. 12. That the parties shall stick to this agreement. In case, purchaser backs out, the amount of the earnest money paid by them shall stand forfeited in favour of the said seller. In the event of the seller backing out from the said deal, he will have to pay double of the amount of earnest money to the said purchaser including liquidated damages.
(2.) The purchaser will have the option either to accept the amount or to seek performance of this contract through court of law under Specific Relief Act. Short point for determination in the instant regular second appeal is as to whether in the absence of fulfillment of conditions precedent for execution of the sale deed, it can be urged on behalf of the appellant-defendant that he was ready and willing to perform his part of the contract. Both the Courts below decreed the suit of the respondent-plaintiff for recovery of the amount paid as earnest money along with interest.
(3.) The main argument of learned counsel for the appellant-defendant is that while he was ready and willing to perform his part of the contract, was present in person along with Sh. P.C. Singla, the General Power of Attorney of the original 12 owners of the land in question, on the target date, i.e. 14.6.2000, in the office of the Sub Registrar, Dera Bassi, yet the respondentplaintiff was not present, therefore, the sale deed could not be executed. Learned counsel for the respondent-plaintiff, on the other hand, by referring to the conditions contained in the sale deed as have been extracted here-in-above, contends that the appellant-defendant in terms of Clause-4 of the agreement to sell, was required to obtain the Income Tax Clearance Certificate from the Income Tax Department, which he never obtained. On a specific query having been put to the learned counsel for the appellant-defendant, he very fairly concedes that the Income Tax Clearance Certificate was not obtained from the Income Tax Department as on the target date fixed for execution of the sale deed.;