IMPORTANT POINT
Vendee cannot claim specific performance if he was not willing and ready to perform his part of agreement notwithstanding breach of agreement by vendor.

JUDGMENT :

K.M. JOSEPH, J.

1. The appeal by Special Leave is directed against the judgment passed by the High Court of Kerala at Ernakulam dated 08.10.2015 in RFA No. 869 of 2013. The appellant is the plaintiff in a suit for specific performance which has been decreed by the trial Court but on appeal by the defendant dismissed by the impugned judgment of the High Court. For the sake of convenience, the parties would be referred hereinafter as per their status shown in the plaint before the trial Court.

THE AGREEMENT

2. There is no dispute that the plaintiff and the defendant have indeed entered into an agreement on 25.04.2007. The agreement (marked as A1), inter alia, provided as follows; The property, which was agreed, to be sold was mentioned as 75 ¾ cents held by the defendant as per assignment deed No. 1405 of 1975. The property agreed to be sold included all improvements thereon including an incomplete RCC house building, Well, motor shed etc. Payment of Rs. 2,00,000/- as advance was recorded. Towards balance consideration the plaintiff was to pay the minimum amount of Rs. 3,00,000/- within four months from 25.04.2007. It is further recited that on such payment, the defendant will assign land equivalent to Rs. 3,00,000/- in favour of the person nominated by the plaintiff for the portion agreed by both the parties. The consideration was fixed at Rs. 34,000/- per cent of property to be found on actual measurement. The time limit was fixed as "till the 24th day of March, 2008." Time limit was expressly mentioned as an essential part of the agreement. The assignment was to be executed either in favour of the plaintiff or any other person nominated by him in writing. Before the execution of the assignment deed, the contract further provided that the plaintiff shall be convinced of the title of the property and other connected things.

DEVELOPMENTS AFTER THE AGREEMENT

3. It is not in the region of dispute that the plaintiff paid Rs. 3,00,000/- by cheque on 25.08.2007 and it is also endorsed in the agreement. Thereafter, on 25.01.2008 the defendant sent a lawyers notice to the plaintiff. Therein it is stated that the defendant holds 75 ¾ cents as per the assignment deed, already referred to, which property was agreed to be sold for Rs. 34,000/- in terms of the agreement and the last date of the agreement was fixed as 24.03.2008. It is further stated that the plaintiff was to give balance consideration by deducting the advance within the stipulated time for which the defendant is ready and he called upon the plaintiff to get ready for the same by that time. It is further stated that the plaintiff had orally offered to the defendant in the presence of witnesses that he will take assignment of the property even before the stipulated date for which the defendant is ready.

4. The plaintiff caused a reply notice to be sent to the aforesaid lawyers notice. The reply notice sent was dated 18.03.2008. Therein it is relevant to notice certain statements. After referring to Ext.A1 agreement, it is stated that the lawyers notice was sent by the defendant without getting the property measured or producing and convincing the plaintiff about the original title deed No. 1405/1975 as well as prior documents. It is stated that the plaintiff was and is continuously ready and willing to perform his part of the agreement right from the beginning till then and in future. The statement in the notice, sent by the defendant, is denied that the plaintiff will take the assignment before the agreed date and it was agreed so in the presence of witnesses. It is alleged that defendant sent the notice with ulterior motive concealing that property had not been measured and without producing the original title deed. The plaintiff pointed out that the defendant consented to measure the property only three days before that date i.e. on 16.03.2008 (it may be noticed that reply notice is dated 18.03.2008 and it was sent only later). It was further stated that the defendant