In specific performance cases, the plaintiff must continuously demonstrate financial capacity and willingness to perform contractual obligations for relief, requiring substantial evidence rather than mere claims.

JUDGMENT :

S.G. PANDIT, J.

Defendant’s appeal under Section 96 of the Code of Civil Procedure, 1908, questioning the correctness and legality of the judgment and decree dated 21.10.2010 in O.S.No.118/2007 on the file of the III Additional Senior Civil Judge, Mangalore, D.K., decreeing plaintiff’s suit for specific performance directing the defendant to execute the registered sale deed in respect of the suit schedule property by receiving balance sale consideration of Rs.19,94,995/-, within a period of two months from the date of the order, with an observation that, failing which, the plaintiff is at liberty to get the sale deed executed through process of the Court.

2. Parties to the appeal are referred to as they stood before the trial Court. The appellant was defendant and respondent was plaintiff before the trial Court.

3. The brief facts of the case are that:

It is the case of the plaintiff that the defendant is the absolute owner of the suit schedule property having acquired the same through registered sale deed dated 28.12.1987 and rectification deed dated 01.09.1989. On account of financial difficulty, the defendant came forward to sell the suit schedule property. The plaintiff having come to know the intention of the defendant, decided to purchase the suit schedule property. On mutual discussion between the plaintiff and defendant, they entered into an agreement of sale dated 09.08.2006 wherein the defendant agreed to sell the suit schedule property in favour of the plaintiff for a total consideration of Rs.22,00,000/-. The plaintiff is said to have paid a sum of Rs.5,005/- in cash and further paid a sum of Rs.2,00,000/- through cheque bearing No.026873 dated 09.08.2006 drawn on Union Bank of India, Maroli Branch, Mangalore. In all, the plaintiff paid a sum of Rs.2,05,005/- to the defendant, which the defendant has acknowledged. In terms of the agreement, the sale deed was to be executed by the defendant within six months from the date of agreement and the plaintiff has to get the sale deed executed by paying balance sale consideration of Rs.19,94,995/- at the time of execution of sale deed. The defendant had under taken to deliver the actual possession of the schedule property at the time of execution of sale deed.

4. In terms of the sale agreement (Ex.P5), the defendant had agreed to obtain conversion order of the land under Section 95 of the KARNATAKA LAND REVENUE ACT at his cost and the defendant had agreed to produce all the original title deeds and other documents pertaining to the suit schedule property at the time of execution of sale deed. As the defendant failed to execute the sale deed within six months, the plaintiff is said to have issued legal notice on 17.03.2007 calling upon the defendant to execute the sale deed on receiving balance sale consideration.

5. The defendant is said to have replied on 31.03.2007 (Ex.P1) stating that the plaintiff had agreed to pay the sale consideration amount within one week, but failed to pay the said amount. Since the defendant was in urgent need of money, he had agreed to sell the property for lesser amount than the market value. Further, the reply notice states that the plaintiff was not ready and willing to pay the balance sale consideration as he was not possessing the required financial capacity and with an intention to defraud the defendant, his signature was taken on the agreement. As the defendant failed to execute the sale deed even thereafter, the plaintiff filed suit with a prayer for specific performance on 13.04.2007.

6. On service of s