Indira Banerjee JUDGMENT
Navin Sinha, J.
1. The Defendant is in appeal, aggrieved by the concurrent findings decreeing the suit for specific performance filed by the Respondent.
2. An agreement for sale with regard to House No. 3343/3, situated in Rupnagar Municipality was executed between the parties on 16.03.1988 for an agreed consideration of Rs. 1,50,000/-. At the time of execution, a sum of Rs. 15,000/- was paid. As the suit property stood mortgaged to the education department, a further agreement dated 20.06.1988 was executed between the parties, that the sale deed would be executed within 15 days of the Defendant obtaining release of the property from mortgage, giving due intimation to the Plaintiff. A further sum of Rs. 53,000/- and cash of Rs. 2,000/- was paid to the Defendant. The Appellant after redemption of the mortgage, intimated the Respondent on 27.07.1989 in accordance with the agreement, requiring payment of balance consideration and execution of the sale deed. The Respondent disputed the redemption requiring proof of the same. The Appellant, after due notice cancelled the agreement for sale on 01.09.1989 and forfeited the earnest money. The Plaintiff then filed the instant suit seeking specific performance of the agreement by the Defendant. The suit was decreed and the appeal preferred by the Defendant was also dismissed. The second appeal of the Defendant having also been dismissed, the present appeal has been lodged before this Court.
3. Shri Neeraj Kumar Jain, learned senior Counsel appearing for the Appellant, submitted that indisputably due intimation was given to the Respondent after redemption of the mortgage, as required under the agreement. The Respondent raised frivolous objections and failed to perform its obligations by payment of the balance consideration amount and to take steps for execution of the sale deed. The Appellant, after due notice cancelled the agreement and confiscated the amount paid, for lapses of the Respondent. Relying on I.S. Sikandar (D) by L.Rs. v. K. Subramani and Ors., MANU/SC/1093/2013 : (2013) 15 SCC 27, it was submitted that the suit for specific performance simpliciter was not maintainable in absence of any challenge to the cancellation of the agreement, and seeking consequential declaratory relief. It was next submitted that the Respondent did not enter the witness box to establish his readiness and willingness to perform his obligations under the agreement for sale. PW-1 was a power of attorney holder from the Respondent by execution on 02.11.1989. She was not competent to depose with regard to events prior to the same, especially with regard to facts personal to the knowledge of the Respondent. Reliance was placed on Janki Vashdeo Bhojwani and Ors. v. Indusind Bank Ltd. and Ors., MANU/SC/1030/2004 : (2005) 2 SCC 217. Mere bald assertions in the plaint, were not sufficient, in absence of any evidence to establish readiness and w........