IMPORTANT POINT
Readiness and willingness does not mean having funds on the date. Funds should be available throughout.

JUDGMENT :

A.S. Bopanna, J.

Leave granted.

2. The appellants herein were the defendants in the suit bearing OS No.89 of 2008. The suit in question was filed by the respondents herein seeking for a judgment and decree for specific performance of the agreement for sale dated 26.03.2007. The Trial Court on having considered the matter has decreed the suit in part by its judgment dated 23.12.2010. Through the said judgment, the decree for specific performance was declined and the alternate relief directing the appellant herein to pay the sum of Rs. 75 Lakhs with interest at 9% per annum was granted. The plaintiffs claiming to be aggrieved by the same had preferred the appeal under Section 96 of the Civil Procedure Code before the High Court of Kerala at Ernakulam in RFA No. 344 of 2011. The Division Bench of the High Court through its judgment dated 21.08.2018, set aside the judgment passed by the trial court and has allowed the appeal.

3. The appellants herein have accordingly been directed to execute the sale deed in favour of the Respondent No. 1 herein, conveying the properties described in Item Nos. 1, 2, & 5 on the balance sale consideration being deposited within the period of two months. In respect of the properties described in Item Nos. 3 & 4, the same was not included in the judgment since the said properties involved the minor’s interest. The defendants in the suit, who are the respondents in the appeal before the High Court are therefore before this Court claiming to be aggrieved by the judgment dated 21.08.2018 passed by the High Court in RFA No.344 of 2011. Thus, on the divergent conclusion reached by the two Courts, consideration is required in this appeal.

4. For the sake of convenience and clarity the parties would be referred to in the same rank as assigned to them in the original suit wherein the respondents herein were the plaintiffs and the appellants herein were the defendants.

5. The brief facts necessary to be noted for the consideration of this appeal is that the defendants are the owners of the different item of properties which are described in the schedule to the suit subject agreement dated 26.03.2007. The total extent of property was indicated in the agreement as 12.775 acres. The plaintiffs agreed to purchase the said land at the rate of Rs. 11,350 per cent of land. In that regard the agreement dated 26.03.2007 was entered into and an advance of Rs. 75 lakhs was paid by the first plaintiff to the defendants. The plaintiffs agreed to make a further payment of Rs. 75 lakhs on or before 15.10.2007 and before such time the actual measurement of the property was required to be made so as to determine the actual sale consideration payable and to complete the sale transaction.

6. According to the plaintiffs, they were ready and willing to pay the balance and secure completion of the transaction. In that regard the plaintiffs claim that they had also kept ready the sum of Rs. 75 lakhs which was agreed to be paid on or before 15.10.2007. The plaintiffs contend that defendants did not make available all the documents necessary for executing the sale deed. They therefore contend that the said position was accepted by the defendants and an appropriate endorsement was made at the foot of the agreement and the defendants had conceded that the amount payable on 15.10.2007 can be paid on the date of the conveyance and that the documents will be satisfied prior to this date. The outer limit for completion of the transaction was fixed as 22.01.2008. The further contention of the plaintiff is that despite they being ready and willing, since the defendant did not come forward to complete the transaction, they were constrained to file this suit.

7. The defendant on being served with summons had appeared and filed their written statement. The execution of the agreement, the receipt of the sum of Rs. 75 lakhs as also the manner in which the balance amount was to be paid and the transaction was to be completed was not disputed. Ho