The grant of specific performance requires the plaintiff to prove continuous readiness and willingness to perform the contract and the court's discretion is governed by principles of equity and justice.

JUDGMENT :

HANCHATE SANJEEVKUMAR, J.

The appeal is filed by the defendant challenging the judgment and decree dated 28.08.2018 passed by the Court of XXXIV Additional City Civil and Sessions Judge, Bengaluru, in O.S.No.974/2008, thereby, the suit for specific performance is decreed in full directing the defendants to execute the sale deed in favour of the plaintiff.

2. Rank of the parties is referred to as per their rankings before the trial court.

3. It is the case of plaintiff in brief that the husband of defendant No.1 and father of defendant Nos.2 and 3 is the owner of the suit schedule property and he has offered the suit schedule property for sale by entering into an agreement of sale with the plaintiff on 26.09.2006 and total sale consideration was fixed at Rs.6,00,000/- out of which the plaintiff has paid an advance amount of Rs.2,50,000/-. But thereafter late Sanjeevappa, who is the husband of defendant No.1 and father of defendant Nos.2 and 3 did not execute the sale deed, therefore upon issuance of legal notice calling upon Sanjeevappa and after his death to the defendants, when the defendants have not come forward to execute the sale deed, the plaintiff has filed suit for specific performance. Hence, the plaintiff prays to decree the suit for specific performance. Alternatively, the plaintiff prays to pass an order for refund of advance amount of Rs.2,50,000/- together with liquidated damages of Rs.2,50,000/- in total a sum of Rs.5,00,000/-.

4. The defendants have appeared through their learned Advocate and filed the written statement and has taken pleading that there is no agreement of sale executed between the plaintiff and late Sanjeevappa and late Sanjeeevappa had taken hand loan from the plaintiff of Rs.2,50,000/- as plaintiff is doing money lending business and therefore, whatever agreement of sale is concocted one. Further submitted that during the lifetime of Sanjeevappa the plaintiff did not issue any legal notice and thereafter the plaintiff has issued legal notice and that is certainly replied. Therefore by taking contention that there was no agreement of sale executed, prays to dismiss the suit.

5. Upon pleadings the trial court has framed the following issues:

(1) Whether the plaintiff proves that late Sanjeevappa the husband of 1^st defendant and father of defendant No.2 and 3 had entered into an agreement to sell the suit schedule plaint property for consideration of Rs.6,00,000/- and received a sum of Rs.2,50,000/- as advance and executed an agreement of sale dated 26/9/2006?

(2) Whether the plaintiff proves that he is always been ready and willing to perform his part of contract?

(3) Whether the plaintiff is entitled for the relief of specific performance of the sale agreement dated 26/9/2006?

(4) Whether the plaintiff is entitled for the alternative relief of the refund of advance amount of Rs.2,50,000/- and liquidated damages of Rs.2,50,000/-?

(5) What decree or order?

6. The plaintiff is examined as PW1 and one additional witness is examined as PW2 and produced the documents, which were marked as Exs.P-1 to P-6. The defendant No.1 is examined as DW1 and two witnesses have been examined as DW2 and DW3 and they produced the documents, which were marked as Exs.D-1 to D-14.

7. The trial court has decreed the suit in full for specific performance directing the defendants to execute the sale deed. The trial court has assigned the reason that Ex.P-1 - agreement of sale was proved and as per Ex.P-3 reply notice Sanjeevappa during his lifetime had agreed to execute the sale deed and the signature found on the Ex.P-3 - reply notice is proved to be as that of Sanjeevappa, therefore execution of agreement of sale is proved. Hence, decreed the suit for specific performance of contract. The trial court also assigned the reason that the plaintiff is able to prove that plaintiff was ready and willing to perform his part of contract, therefore decreed the suit in full.

8. Being aggrieved by the judgment and decree passed by th