The plaintiff must demonstrate both readiness and willingness to perform a contract for specific performance, including financial capacity, and agreements must be duly stamped to be enforceable.

JUDGMENT :

C.M. Poonacha, J.

The present first appeal is filed by the defendant under section 96 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 30.11.2015 passed in OS No.195/2012 by the Principal Senior Civil Judge at Kolar[Hereinafter referred to as the 'Trial Court'], whereunder the suit for specific performance filed by the plaintiff has been decreed with costs.

2. For the sake of convenience, the parties herein are referred as per their rank before the Trial Court.

3. It is the case of the plaintiff that the defendant claims to be the owner of two vacant sites[Hereinafter referred to as the 'suit property'] and offered to sell the same and accordingly, after negotiations, the plaintiff agreed to purchase the suit property and entered into an Agreement of Sale dated [Hereinafter referred to as the 'Agreement] 18.10.20104, whereunder the defendant agreed to sell the suit property to the plaintiff for a total sale consideration of Rs. 36,50,000/- and received an advance amount of Rs. 50,000/- on the date of the Agreement. It was further agreed that the balance sale consideration of Rs. 36.00 lakhs would be paid within three months and the Sale Deed would be executed in favour of the plaintiff.

4. It is the further case of the plaintiff that when he approached the defendant by the end of November 2010 to complete the sale transaction, the defendant sought for some time. That inspite of repeated attempts, the defendant went on postponing to perform his part of the contract. That the plaintiff got issued a legal notice dated 4.11.2011 calling upon the defendant to come to the office of the Sub Registrar, Kolar on 21.11.2011 to execute the registered Sale Deed and receive the balance sale consideration. That despite service of the notice on the defendant, there is no response to the same. It is averred that the plaintiff was always ready and willing to perform his part of the contract. That the defendant has evaded performing the contract. Hence, the plaintiff filed a suit for specific performance.

5. During the pendency of the suit, the plaintiff died and his wife and children came on record as his legal representatives.

6. The defendant entered appearance in the suit and filed his written statement denying the case of the plaintiff. The defendant has further contended that the plaintiff is incapable of performing his part of the contract since he has only paid a sum of Rs. 50,000/- out of the sale consideration of Rs. 36,50,000/- and that the plaintiff was not in a position to pay the balance sale consideration. Hence, he sought for dismissal of the suit.

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

i) "Whether the plaintiff proves that the defendant has agreed to sell the suit schedule properties to him and executed an agreement of the sale dated 18.10.2010 for valuable consideration of Rs. 36,50,000/- and received part sale consideration amount of Rs. 50,000/-?

ii) Whether plaintiff proves that he was/is always ready and willing to perform his part of contract?

iii) Whether plaintiff is entitled to the relief of specific performance of contract?

iv) What order or decree?"

8. Plaintiff No.1(d) examined himself as PW.1. A witness to the Agreement was examined as PW.2. The advocate who drafted the Agreement was examined as PW.3. Exs.P1 to P14 were marked in evidence. The defendant examined himself as DW.1. The wife of the defendant was examined as DW.2. Exs.D1 to D5 were marked in evidence. The Trial Court, by its judgment and decree dated 30.11.2015 decreed the suit and passed the following order:

"The suit of the plaintiff/LRS is hereby decreed with costs.

It is hereby ordered and decreed that defendant shall execute the regular registered sale deed by receiving balance sale consideration of Rs. 36 lakhs (Rupees Thirty lakhs only) from him in respect of the suit schedule properties in favour of the plaintiff/LRs as per the sale agreement dt. 18.10.2010-Ex.P1 within 60 (sixty)