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1. The Regular Second Appeal in the States of Punjab, Haryana and Union Territory, Chandigarh, is governed by Section 41 of the Punjab Courts Act, 1918 and not by Section 100 of the Code of Civil Procedure, 1908, as held by a five Judge Bench of the Supreme Court in Pankajakshi (Dead) through LRs Vs. Chandrika and others, (2016) 6 SCC 157.

2. The following substantial question of law arises for adjudication in the present case. If the Court comes to a conclusion that the 1 of 10 RSA-5437-2015 (O&M) & -2- RSA-6241-2015 (O&M) proposed purchaser/vendee, in the agreement to sell for immovable property, has committed a default in performing his part of the terms of the contract, then, whether a decree for refund of the earnest money is required to be passsed?.

7-That if the purchaser backs out from this deed, then his earnest money shall stand forfeited in favour of the said 2 of 10 RSA-5437-2015 (O&M) & -3- RSA-6241-2015 (O&M) seller and the deal shall stand cancelled. 8- That the sale of the said property includes nothing else except land. The standing plantation of the poplar trees is that of the seller and shall be disposed off before handing over possession of the said property. 9- That the payment schedule will be as under and NO deviation from the same shall be acceptable to the seller. Time is the essence of contract:-

6. On the other hand, the defendants state that the plaintiffs, despite their reminder to the plaintiffs to pay Rs.3,00,00,000/- vide communication dated 01.04.2005, did not pay the amount. On 14.04.2005, the defendants, once again, sent a notice through their lawyer to the plaintiffs terminating the agreement to sell on the ground that the plaintiffs 3 of 10 RSA-5437-2015 (O&M) & -4- RSA-6241-2015 (O&M) have failed to pay the next installment of Rs.3,00,00,000/-, which was a condition precedent.

8. The plaintiff No.1-Sh. Madan Pal appeared in evidence as PW-

1. He admitted that both the plaintiffs received the communication dated 01.04.2005, sent by the defendants. He, also, admitted that no reply was given. On being questioned with regard to the arrangement of the remaining amount, he stated that Rs.1.5 crore was withdrawn from the bank on 18.04.2005, whereas, he, along with the other plaintiff, had issued cheques of Rs.1.5 crore. It has been stated that they reached the house of defendants at 03:00 p.m. on 12.04.2005. On being further questioned, the plaintiff No.1 claimed loss of memory with regard to the details of his bank account. Subsequently, in the latter part of the statement, he stated that he had borrowed the amount from his friends. He also admitted the receipt of notice Ex.P-4, dated 12.04.2005 but stated that they never replied to same. It was claimed that both the plaintiffs got their presence marked on 12.04.2005 while visiting the office of the Sub-Registrar. Subsequently, plaintiff No.1 4 of 10 RSA-5437-2015 (O&M) & -5- RSA-6241-2015 (O&M) stated that he does not remember the mode and manner in which they brought the amount of sale consideration on 20.01.2006 before the Sub- Registrar, Derabassi, but both the plaintiffs did not withdraw any amount from the Bank on 20.01.2006. He claimed that they borrowed the money from their relatives and friends but failed to divulge their names. It was claimed that the plaintiffs had brought Rs.6,00,00,000/- with them at the office of the Sub-Registrar.