Continuous readiness and willingness on the part of the plaintiff is a condition precedent for obtaining relief of grant of specific performance, as mandated by Section 16(c) of the Specific Relief Act.

JUDGMENT

Prithviraj K Chavan, J. - This is an appeal challenging the judgment and order dated 24th August, 2011 passed by the learned Joint Civil Judge, Senior Division, Pune in Special Civil Suit No.1780 of 2009 by which the learned Judge has dismissed the suit for specific performance and directed respondents No.1 and 2 ( "original defendants No.1 and 2") to refund the earnest amount to the appellant (original plaintiff) within two months.

2. Facts germane for decision of the appeal can be summarized as under;

The plaintiff is a construction company of which Ramesh Ghisulal Mehta is the Director. The plaintiff Company has developed construction projects in the vicinity of Pune and has a reputation in the construction business.

3. Subject matter of the suit is a land admeasuring 1 Hector and 62.63 R out of total area of 2 Hector and 26 R situate at Mou'je Koregaon, Taluka Haveli, District Pune. This property shall be hereinafter referred to as "suit property" for the sake of brevity. Defendant No.1- Ravindra Manohar Kulkarni is the owner of the suit property. Defendant No.2- Balasaheb Baburao Tupe is the Power of Attorney holder of Ravindra Manohar Kulkarni. Defendant No.3 - Yogesh Balasaheb Tupe is the son of defendant No.2. Defendant No.1 executed a power of attorney in favour of Balasaheb Tupe on 28th August, 2007.

4. Defendant No.1 had mortgaged the suit property with Central Bank of India against which he obtained a loan. Since defendant No.1 failed to repay the amount, Central Bank of India had instituted a recovery proceeding before the Debt Recovery Tribunal, Pune bearing No.52 of 2003. In order to clear the loan, defendant No.1 was in need of money. There was no option for him than to sell the suit property. Meanwhile, the Debt Recovery Tribunal, Pune (for short 'D.R.T') allowed the recovery proceeding in favour of Bank on 22nd March, 2003 for an outstanding loan amount of Rs.1,23,72,683/-. Recovery officer of the Bank, accordingly, filed execution proceeding bearing No.12 of 2004 against defendant No.1.

5. When the plaintiff came to know about the willingness of defendant No.1 to sell the suit property, he approached defendant No.1 for purchase of it. The plaintiff wanted to purchase the suit property for the reason that he had already purchased abutting land for his other projects. If he purchases the suit property then it will be convenient for him to make constructions simultaneously in a big project. Pursuant to the said decision, there was a talk between plaintiff on one hand and defendants No.1 and 2 on the other hand. In the talk, it was finalized that the suit property would be purchased by the plaintiff for a consideration of Rs.1,30,20,000/-. An agreement of sale came to be executed by defendant No.2 on behalf of defendant No.1 on 1st September, 2007. The said agreement also came to be notarized. In view of the said agreement, the plaintiff had issued a cheque bearing No.528990 dated 20th August, 2007 in the sum of Rs.10,00,000/- drawn on UTI Bank, Pune. At the same time, the plaintiff had paid Rs.5,00,000/- in cash. As such, an earnest amount of Rs.15,00,000/- was paid pursuant to the agreement of sale dated 1 st September, 2007.

6. According to the plaintiff, he was always ready and willing to perform his part of contract. However, in order to defraud and thwart his legitimate right to get the sale deed executed, defendants No.1 and 2 have concealed the fact of agreement to sell from D.R.T and moved an application before the said Authority on 15th October, 2007 by which a permission was sought to sell the suit property in favour of defendant No.3. Accordingly, defendant No.2, in his capacity as a power of attorney holder of defendant No.1 executed sale deed in favour of his son defendant No.3 on 17th December, 2007 for a consideration of Rs.89,00,000/-. It is contended that by virtue of the said sale deed, rights of the plaintiff are not at all affected. It is further contended that despite asking the defendan