IMPORTANT POINT
A plaintiff seeking specific performance must demonstrate readiness and willingness to perform the contract; failure to do so negates the right to enforce the agreement.

JUDGMENT :

The present second appeal is filed by plaintiff under Section 100 of Code of Civil Procedure, 1908[Hereinafter referred to as ‘CPC’] challenging the judgment and decree dated 20.01.2010 passed in R.A No.70/2005 by the Fast Track Court-I, Chikodi[Hereinafter referred to as the ‘first appellate Court’] and the judgment and decree dated 10.06.2005 passed in O.S No.69/1999 by the Additional Civil Judge (Jr.Dn.), Nipani Hereinafter referred to as the ‘Trial Court’, whereunder, the suit for specific performance has been partly decreed by the Trial Court, wherein, refund of the advance amount and redelivery of possession have been ordered, which has been affirmed by the First Appellate Court.

2. The parties will be referred to as per their ranking before the Trial Court, for the sake of convenience.

3. The relevant facts leading to the present appeal are that the defendant being the owner of the suit property, had executed an agreement of sale dated 26.05.1982[Hereinafter referred to as ‘the said agreement’], agreeing to sell the agricultural land bearing R.S Nos.20/5 and 20/2, measuring 13 guntas and 1 acre - 06 guntas respectively situated at Adi village in Chikodi[Hereinafter referred to as the ‘suit property’], for a total sale consideration of Rs.12,000/-. That on the date of the agreement, the plaintiff paid the defendant an earnest money of Rs.5,350/-, and the defendant put the plaintiff in possession of the suit property in part performance of the agreement. That the sale transaction was required to be completed in one year. The defendant having failed to complete the sale transaction, the plaintiff filed the suit for specific performance.

4. The defendant entered appearance in the said suit and denied the case of the plaintiff. The defendant also denied the execution of the agreement and receipt of the earnest money. It was contended by the defendant that his son was ill during the year 1982 and that he was in need of money to meet the medical expenses of his son. As such, the defendant requested the plaintiff for a hand loan, when the plaintiff insisted on execution of a sale agreement for sale of the property owned by the defendant.

5. It is the further contention of the defendant that on payment of the loan amount, the plaintiff had agreed to hand over possession of the suit property. That the defendant never agreed to sell the suit property to the plaintiff. It is further contended that the suit agreement having been executed in the year 1982, and the suit having been filed in the year 1999, the said fact itself demonstrates that the said document dated 26.05.1982 is a document of security and not intended to be acted upon.

6. The defendant further contends that the suit of the plaintiff is barred by time, and the alleged agreement dated 26.05.82, cannot be enforced after long time of 19 years. That the defendant has no other source of income except the agricultural land and on the account of good relationship, the defendant executed the document as an agreement of sale. Hence, the defendant sought for dismissal of the suit.

7. Consequent to the pleadings of the parties, the Trial Court framed the following issues:

i. “Whether the plaintiff proves that the defendant has executed agreement of sale dt.26.5.1982 in respect of the suit property, for total consideration amount of Rs.12,000/- and received Rs.5350/- as earnest money?

ii. Whether the plaintiff proves that, the defendant in pursuance of part performance handed over the possession of the suit property in his favour?

iii. Whether the plaintiff proves that, he is ready and willing to perform his part of contract as per the agreement dt: 26.5.1982?

iv. Whether the defendant proves that, the alleged agreement of sale is in the form of security for the handloan advanced by the plaintiff?

v. Whether the suit barred by limitation?

vi. Whether the plaintiff is entitle for the relief as prayed for?

vii. What order or decree?”

8. The plaintiff examined himself as PW.1 and a wi