Specific Relief Act, 1963–Sec. 12–Respondent-buyer accepted the refund of majority of the earnest money deposit/advance consideration during the pendency of the civil suit–Effect–Five demand drafts of dated 7th Feb., 2008 were ehcashed by him in the July, 2008–Her conduct was for not willing to perform her part of the agreement to sell and proceed with execution of sale deed–Her act leads to an irresistible conclusion that the agreement in question stood cancelled–Nothing on record to show that the demand drafts were encashed under protest–Further, absent a prayer for declaratory relief that termination/cancellation of the agreement is bad in law, a suit for specific performance is not maintainable–Furthermore, the respondent no. 1 suppressed the material facts by not disclosing in the plaint the cancellation letter and demand drafts, and post dated cheques, issued by the seller–Decree of specific performance is liable to be set aside.
