Section 16(c) of the Specific Relief Act, 1963 mandates readiness and willingness on the part of the plaintiff seeking specific performance and the plaintiff has to prove the same.

JUDGMENT :

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 03.11.2021 passed by the High Court of Kerala at Ernakulam in Regular First Appeal No. 63 of 2009, by which the High Court has allowed the said appeal preferred by the original defendants and has set aside the judgment and decree dated 18.08.2008 passed by the learned trial Court in Original Suit No. 205/2006, decreeing the suit for specific performance, the original plaintiff has preferred the present appeal.

2. That the plaintiff and the defendants entered into an agreement to sell dated 07.08.2005 under which the defendants agreed to sell the land in question for a consideration of Rs. 8,750/- per cent. The plaintiff paid an amount of Rs. 10,000/- as advance towards the part sale consideration amount. The balance consideration was agreed to be paid by the plaintiff within six months from the date after measuring the property provided the defendants make available the documents of title including the purchase certificate under the Kerala Land Reforms Act.

2.1 That thereafter, the plaintiff served a legal notice dated 02.11.2006 upon the defendants to execute the sale deed to which the defendants sent reply and refused to execute the sale deed and cancelled the agreement to sell. Therefore, the appellant herein-original plaintiff instituted a Suit being Original Suit No. 205/2006 before the learned trial Court for specific performance of agreement to sell and in the alternative return of the plaintiff’s amount with interest.

2.2 The said suit was resisted by the defendants by filing written statement. It was denied that the plaintiff was ever ready and willing to perform his part of the contract. It was also submitted that the suit was filed after one year from the date of expiry of the agreement. It was the case on behalf of the defendants that defendant No. 1 was a heart patient and he had undergone the surgery on which huge amount was spent which was borrowed from others and therefore to clear off the said liability, the defendants agreed to sell the property in question. It was also the case of the defendants that even though the defendants had approached the plaintiff to pay some more money, he was not prepared for the same, thereby defendants had been compelled to sell the gold ornaments and clear the liabilities. It was submitted that the defendants were always ready and willing to perform their part of the agreement.

2.3 The learned trial Court framed the following issues:

“1. Whether plaintiff had performed his part of the contract, thereby entitling him for specific performance of the agreement?

2. Whether plaintiff has got any cause of action against defendants?

3. Whether the plaintiff is entitled to the reliefs sought?

4. Relief and costs?”

2.4 On appreciation of the entire evidence on record, the learned trial Court decreed the suit for specific performance of agreement to sell dated 07.08.2005. However, at the same time and to do complete justice between the parties, the learned trial Court directed the plaintiff to pay 25% more amount, over and above the agreed consideration i.e. sale consideration at the rate of Rs. 11,000/- per cent (Rs. 8,750/- per cent + 25% = 10,037/- rounded off to Rs. 11,000/-). The learned trial Court also directed the plaintiff to deposit the balance sale consideration, i.e. Rs. 3,97,000/- within a period of two months.

2.5 Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court decreeing the suit for specific performance of agreement to sell dated 7.8.2005, the defendants preferred an appeal before the High Court. Without upsetting the findings recorded by the learned trial Court on execution of agreement to sell dated 7.8.2005; payment of part sale consideration and the other issues held in favour of the plaintiff, straightway the High Court considered Section 20 of the Specific Relief Act and opined that the trial Court was not justified in enhan