The main legal point established in the judgment is the importance of proving readiness and willingness to perform the contract in a suit for specific performance.

1. Heard.

2. Admit. By consent of the parties, the appeal is called out forthwith and heard finally.

3. This First Appeal is directed against the judgment and order dated 21.7.2017 passed by the learned Judge of the City Civil Court, Greater Mumbai, by which Suit No.9933 of 1987 is decreed. The respondents/plaintiffs have filed a suit for specific performance of the agreement; for compensation of Rs.3 lakhs alongwith interest @ 18% and alternatively for refund of earnest money. The appellants/defendants are the owners of a piece of land admeasuring 721 sq.yards with a building thereon situated at New CTS No. 1600 having final plot No. 258 (original building No. 239) situated at Dixit Road, Vile Parle (East), Mumbai. The original plaintiff-deceased was a builder developer and he agreed to purchase the property of the defendant. In 1984, the plaintiff after negotiations with the defendants agreed to purchase the suit property for Rs.1,85,000/-. Inter alia, the original deceased defendant executed agreement dated 5.7.1984 in favour of the deceased plaintiff and accepted an amount of Rs.18,500/- towards earnest money. The plaintiff thereafter paid property tax of Rs.316.50ps for the year 1983-1984. Thereafter, the deceased plaintiff though pursued the deceased – defendant for the transfer of the suit plot and building in his name and insisted for the execution of the sale deed, the deceased defendant avoided the same. The deceased plaintiff was ready and willing to pay his remaining part of the consideration amount and accordingly, sent legal notice to the deceased-defendant. However, the deceased defendant failed to perform his part of obligation and therefore, the plaintiff was constrained to file suit in the year 1987 for specific performance and the damages. The original defendant appeared after notice and contested the claim by filing written statement on the ground that the defendant never agreed to sell the plot and the building to the plaintiff but he has borrowed the amount of Rs.185,000/- from the original plaintiff, who assured him to advance the said loan and actually gave him a part of the loan of Rs.18,500/- on oral agreement. However, by way of security, the defendant agreed to prepare an agreement of sale of the suit property and thus, he signed the agreement dated 5.7.1984 in favour of the plaintiff. It is categorically contended by the deceased defendant that the said agreement was never intended for sale of the suit property but it was a surety offered against the loan amount of Rs.185,000/-. It was further contended that the defendant failed to make further payment of Rs.156,500/- on or before August, 1984 as agreed between the parties and, therefore, this contract is not binding on him. The trial Court framed issues. The plaintiff thereafter filed his affidavit in chief marked at exhibit 6 and the matter was adjourned and fixed for cross-examination on 8.1.2014. However, in between unfortunately, the original plaintiff expired on 22.12.2013 and, therefore, the present respondents, being legal representatives of the deceased plaintiff, were brought on record as plaintiffs in his place. Thereafter, neither the plaintiffs nor the defendants led the evidence and the learned Judge of the trial Court decreed the suit. He directed the plaintiff to deposit the remaining amount of Rs.166,500/- in the Court within one month from the date of the order and the defendants were directed to execute the registered sale deed in respect of the suit property in favour of the plaintiffs within two months from the date of the order. Hence, this appeal.

4. After going through the record of the case and hearing submissions, the points for determination arose as follows:

(i) Whether the evidence of the deceased plaintiff who is not subjected to cross-examination, can be relied?

(ii) Whether the plaintiffs have proved the agreement and their readiness and willingness to perform their part of contract?

(iii) Whether the judgment an