In order to grant the relief of specific performance, the plaintiff must be always ready and willing to perform his part of the contract.

JUDGMENT :

This matter is listed for admission. Heard the learned counsel appearing for the respective parties.

2. This appeal is filed challenging the judgment and decree dated 04.04.2019 passed in R.A.No.5003/2018 on the file of the IV Additional District and Sessions Judge, Shimoga, sitting at Bhadravathi.

3. The factual matrix of the case of the plaintiff before the Trial Court is that he had entered into an agreement with defendant No.1 for purchasing the vacant site for a valuable consideration of Rs.6,00,000/- vide sale agreement dated 04.08.2014 and he had paid the earnest money of Rs.1,00,000/- and agreed to pay the remaining amount of Rs.5,00,000/- at the time of registration of the sale deed and time was fixed for registration was for a period of three months. It is also his claim that he was repeatedly asking the defendant to furnish the documents to have the sale deed and the defendant No.1 did not come forward to execute the sale deed and he was always ready and willing to perform his part of contract. In pursuance of the suit summons, the defendant No.1 appeared and filed written statement contending that the agreement date 04.08.2014 was terminated and he also returned the advance amount of Rs.1,00,000/- to the plaintiff by tendering the cheque and the same was not encashed by him hence, the plaintiff was not entitled for the relief of specific performance. The Trial Court after considering both oral and documentary evidence placed on record framed the issues with regard to ready and willingness on the part of the plaintiff and whether agreement was cancelled and whether the defendant No.1 had paid the amount by way of cheque and whether the plaintiff is entitled for the relief of specific performance as prayed. The plaintiff in order to prove his case, examined himself as PW1 and got marked the documents at Ex.P1 to P6 and also examined two witnesses as PW2 and PW3. On the other hand, the defendant No.1 himself examined as DW1 and also examined one witness as DW2 and got marked the documents at Ex.D1 to D3. The Trial Court after considering both oral and documentary evidence placed on record answered issue No.1 as negative in coming to the conclusion that the plaintiff was not always ready and willing to have the sale deed and also answered issue No.2 as affirmative with regard to the execution of the sale agreement and also cancellation of sale agreement and also answered issue No.3 as affirmative in coming to the conclusion that the defendant has tendered the money which he has received as earnest money and comes to the conclusion that the plaintiff is not entitled for any relief of specific performance and dismissed the suit.

4. Being aggrieved by the judgment of the Trial Court, an appeal was filed before the First Appellate Court wherein the appellant/plaintiff vehemently contend before the Court that the Trial Court has not considered the material available on record in a proper perspective and committed an error in not ordering for the specific performance when there is no dispute with regard to the entering into an agreement between the parties and the defendant No.1 himself did not come forward to furnish the documents. Based on the pleadings of the parties, the First Appellate Court formulated the point with regard to whether the judgment of the Trial Court requires to be interfered and relief of specific performance has to be granted. On perusal of both oral and documentary evidence placed on record and also on re-appreciation of evidence, First Appellate Court also dismissed the appeal. Hence, the present second appeal is filed before this Court.

5. The main contention of the learned counsel for the appellant/plaintiff that no dispute with regard to the sale agreement dated 04.08.2014 and also no dispute with regard to three months time was stipulated to have the sale deed. The counsel also would contend that though legal notice was issued by the defendant No.1 on 03.11.2014 that is before expiry of st