Mohinder kaur
V.
Sant Paul Singh

Facts

  1.  An Agreement to Sell with regard to a house situated in Rupnagar municipality was executed between the parties in 1988 for an agreed consideration of Rs. 1,50,000/-. At the time of execution, a sum of execution of Rs. 15,000 was paid.
  2. The suit property stood mortgaged to the education department. A further agreement on 20-06-1988 was executed between the parties and the signatures were not verified digitally.
  3. After 15 days of release of the property, the defendant intimated plaintiff via a post with an attachment of photocopy of the release deed. A sum of Rs. 53,000 and cash of 2000 was paid to the defendant. The appellant intimated the release of mortgage to respondent on July 27, 1989.
  4. 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.
  5. The respondent on 2/10/89 insisted on the no dues certificate denying receipt of the release deed. The respondent then gave power of attorney on 2-11-1989; the holder being unaware of the events denied the receipt of the notice dated 27/07/1989.
  6. 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 was also dismissed.

Held
The Supreme Court considered that the suit property stood redeemed from the mortgage on 4, July 1989 and the appellant sent due intimation by the registered post to the defendant on 27 July 1989 attaching a photocopy of the release deed, requiring the respondent to take steps for execution of the sale deed. The court laid down that it was for the respondent to establish his readiness and willingness for the execution and proving his capacity to pay the balance consideration. No evidence was led on behalf of the respondent and the power of attorney holder also sought to deny any knowledge regarding cancellation of agreement on 1/8/89.

It was held that the agreement was cancelled by the appellant and the consideration already paid was confiscated under intimation to the respondent and the respondent never challenged the communication of cancellation. The relief sought for granting specific performance of execution of the non-existing agreement to sale is wholly unsustainable in the law.

The court further held that merely because the respondent is not satisfied by the intimation, it cannot be interpreted as the readiness and willingness of the respondent and his capacity to perform his obligation particularly, when he stated that he migrated to America and executed a power of attorney. The respondent cannot be held to grant such relief. Thus, the appeal is allowed.