Specific performance requires plaintiffs to prove the agreement and readiness to fulfill the contract, assessed through both documentary and oral evidence.

JUDGMENT :

(PER: THE HON'BLE MR. JUSTICE C M JOSHI)

This appeal arises out of the divergent findings of the judgments of Senior Civil Judge, Koppal in O.S.No.16/2008 and the judgment of District Judge, Fast Track Court-1, Koppal in R.A.No.53/2010 dated 21.03.2011 whereby the First Appellate Court reversed the judgment of the Trial Court and granted the relief of refund of the earnest money paid under an agreement of sale.

2. Parties would be referred to as per the rank before the Trial Court for the sake of convenience.

3. The factual matrix that is relevant for the purpose of this appeal may be stated as below:

i) Defendant No.1 was the owner in possession of the landed properties i.e. No.62 and 63/A/2 and he had purchased the same in the year 2007. The first defendant was in need of money for his legal necessity and therefore, he proposed to sell the suit schedule properties to the plaintiff and accordingly, the sale price was fixed at Rs. 41,000/- per acre and as such the total consideration agreed was Rs. 8,19,000/-.

ii) The agreement was entered into between the plaintiff and defendant No.1 on 26.07.2007 and on the same day, defendant No.1 executed the agreement by receiving an advance amount of Rs. 3,21,000/-. It was agreed that the sale deed has to be executed within three months from 26.07.2007.

iii) On 05.11.2007 the plaintiff was ready to get the stamp papers for purchase of the suit schedule property and approached defendant No. 1 and requested to execute the sale deed. But on one or the other pretext, he postponed the same.

iv) Ultimately, the defendant stated that there was some problems to him to execute the sale deed and therefore, he requested some more time and accordingly, on 21.11.2007, another sum of Rs. 2,29,000/- was paid by the plaintiff to the defendant and an endorsement was made on the agreement of sale. The time to execute the sale deed was extended by another three months.

v) The plaintiff approached defendant No.1 and requested him to perform his part of the agreement, but the defendant started to avoid the plaintiff and therefore, the plaintiff felt that the defendant is not ready to execute the sale deed and as such he filed suit for specific performance of the contract. Before filing the suit, a legal notice was also issued to defendant No.1 on 14.02.2008.

vi) The plaintiff sought specific performance of the agreement of sale and in the alternative, sought the refund of the amount paid to the defendant.

vii) During pendency of suit, the plaint was amended and it was stated that defendant No.1 joined hands with his brothers and relatives and had got filed O.S.No.8/2008 for partition and colluding with his brothers, a decree was obtained on 29.02.2008 with an intention to defeat the agreement of sale.

4. The first defendant appeared before the Trial Court and filed a written statement denying the agreement of sale dated 26.07.2007 and receipt of the earnest money of Rs. 3,21,000/-. He also denied that he had received an additional sum of Rs. 2,29,000/- on 21.11.2007 and had agreed to execute the sale deed within three months. He also denied that the plaintiff was ready and willing to perform his part of the contract.

5. He contended that the plaintiff and his brother are well known to the defendants and defendant No.1 used to take hand loan from the plaintiff and his brother who was an MLA. It is contended that hand loan of Rs. 1,00,000/- was obtained from the plaintiff’s brother and at that time, he had obtained signature of the first defendant on blank stamp paper of Rs. 2/-, which is for the purpose of security of the hand loan. Subsequently, the defendant has repaid the said loan and reque