R.S.A. No. 4219 of 2010 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 4219 of 2010 (O&M) Date of Decision: May 9, 2011 Parminder Singh …..Appellant Vs. Ashwani Kumar and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. Ajay Jain, Advocate for the appellant. -.- M.M.S. BEDI, J. (ORAL) Suit of the plaintiff- respondent for specific performance of an agreement of sale dated April 12, 1993 has been dismissed but decreed for alternative relief for refund of the earnest money received by the defendant- appellant i.e. ` 3.20 lacs alongwith interest. Counsel for the defendant No.1- appellant has vehemently contended that the liability of recovery of ` 3.20 lacs cannot be made from the appellant in view of the fact that the plaintiff- respondents have not been R.S.A. No. 4219 of 2010 (O&M) [2] able to establish that they had been ready and willing to perform their part of the contract. He has also argued that Kulwant Singh was a co-proposed vendee with the plaintiff- respondents but he was neither impleaded as a plaintiff or proforma defendant before the trial Court, as such the suit is bad for non-joinder of necessary party. I have heard counsel for the appellant and gone through the judgments and decrees passed by the Courts below. The suit of the plaintiff- respondents for specific performance has been dismissed on the ground that defendant No.1 had been found to be owner of only 1/14th share of the property in dispute by virtue of a decree passed by the Civil Court as such he did not have any right in the entire property in dispute to alienate to the plaintiff- respondents. In such circumstances there was no necessity for the Courts below to arrive at a conclusion that the plaintiff- respondents were willing and ready to perform their part of contract. So far as the contention that non-joining of Kulwant Singh will vitiate the proceedings of the plaintiff- respondents is concerned, I do not find any force in the arguments of counsel for the defendant- appellant as the Courts below have arrived at a conclusion that Kulwant Singh having received a sum of ` 1 lac from the defendant had waived of his right in the agreement of sale which was sought to be specifically performed by the remaining two proposed vendees. A concurrent finding of fact arrived at by the Courts below that the plaintiff- respondents are not entitled to the relief of specific performance but entitled to the alternative relief considered in context to the R.S.A. No. 4219 of 2010 (O&M) [3] provisions of Specific Relief Act do not warrant any interference in the exercise of powers under Section 100 CPC. Dismissed. May 9, 2011 (M.M.S.BEDI) sanjay JUDGE