Readiness and willingness is a basic condition for the grant of specific performance under Section 16(c) of the Specific Relief Act, 1963.

JUDGMENT

R.F. Nariman, J.

The present appeal arises out of a judgment dated 26.10.2005, delivered by a single Judge of the Andhra Pradesh High Court, by which an appeal filed by the original Defendant No.3 was allowed and a suit for specific performance was dismissed.

2. The brief facts necessary for deciding this case are as follows:

On 21.02.1992, an agreement to sell was entered into between one Smt. P. Savitri, Respondent No.1 before us, and B. Vijaya Bharati, by which the schedule property was agreed to be sold for a consideration of Rs. 1,80,000/-. Rs. 1,30,000/- had already been paid in advance. The balance consideration of Rs. 50,000/- was to be paid later as and when the vendee gives notice that she is ready to get the property registered, and on intimation from the vendor to pay the balance consideration.

3. Para 3 & 5 of the Agreement provided for necessary permissions from the society for transfer of the membership in the name of the vendee, which was to be obtained by the vendor, and clearances required from the Income Tax, Urban Land Ceiling Authorities and other Authorities were also to be obtained by the vendor. The said Agreement, though it was an agreement to sell only, was registered by way of abundant caution.

4. On 13.03.1992, the first defendant appeared before the Registering Authority to execute a General Power of Attorney in favour of the husband of the plaintiff in order to obtain the permissions referred to above. It has been concurrently found that on this date, she resiled from such execution of General Power of Attorney in favour of the plaintiff's husband and left the Sub-Registrar's office without registering the General Power of Attorney.

5. Thereafter, the property was sold by Defendant No.1 on 12.05.1992 to Defendant No.2 for a sale consideration of Rs. 1,20,000/-. Defendant No.2, in turn, sold the property on 05.07.1993 to Defendant No.3 for a sum of Rs. 1,95,000/-. Both the sales were by registered conveyance.

6. The plaintiff issued the necessary notice stating that she was ready to pay the balance Rs. 50,000/- on 18.02.1994. Since the reply to the said notice was that the agreement was no longer valid, the plaintiff filed a suit for specific performance on 13.04.1994.

7. The trial Court decreed the said suit for specific performance, finding that the agreement of 21.02.1992 was prior in point of time to both the registered sale deeds. It found, as a matter of fact, that the purchasers of the property could not be said to be bona fide purchasers given the fact that no encumbrance certificate was called for before any such purchase.

8. Defendant No.3 appealed to the High Court, and the High Court set aside the decree of the trial Court stating that the plaintiff was not ready and willing through out as was required by Section 16(c) of the Specific Relief Act, 1963 and held that the suit was filed long after, in fact, more than two years after the repudiation on 13.03.1992. A single Judge of the High Court held thus:

"Till Ex.A-2 notice was issued, the Plaintiff has not made any endeavour to pay the balance sale consideration, particularly, when the 1st Defendant having appeared before the registering authority to execute the GPA in favour of the husband of the Plaintiff on 13-3-1992 and resiled from execution of such GPA in favour of the Plaintiff and left the Sub-Registrar's Office without registering the GPA. Any prudent person, who obtained the registered agreement of sale by paying 2/3rd of the sale consideration, will not keep quiet for a period of nearly one year eleven months after the vendor repudiated the contract and refused to register the GPA to complete the sale transaction, which clearly discloses that the total inaction is on the part of the plaintiff. Even after such refusal, she has not issued any notice to the 1st Defendant to execute the sale deed by offering balance sale consideration and expressing her readiness and willingness to complete the transaction. Thus, the plaintiff waiv