Continuous readiness and willingness to perform contractual obligations must be established by the plaintiff, including evidence of financial capacity to perform the contract.

JUDGMENT :

M.W. CHANDWANI, J.

1. This appeal challenges the judgment and order passed by the Principal District Judge, Amravati in Regular Civil Appeal No.139/2015 thereby overturning the decree of dismissal, dated 03.05.2008 passed by the Adhoc District Judge-1, Amravati in Special Civil Suit No.121/2002 and directing the present appellant Uddhavrao to execute the registered sale-deed in respect of the suit property in favour of respondent nos.1 and 2.

2. Respondent nos.1 and 2 filed a suit bearing Special Civil Suit No.121/2002 before the trial Court for specific performance of contract contending that they are members of the Hindu undivided family and claimed to have entered into an agreement of sale with the original defendant- Uddhavrao Marotiraoji Mankar. The plaint depicts that by an agreement of sale dated 06.07.2000 Uddhavrao agreed to sell the plot and house to respondent nos.1 and 2 for consideration mentioned in the agreement. The sale-deed was to be executed on or before 30.01.2000. Uddhavrao got the time for execution of the sale-deed extended. Respondent nos.1 and 2 paid total amount of Rs.5,40,000/- including the earnest amount of Rs.3,00,000/-. When respondent nos.1 and 2 published a public notice dated 28.12.2000 thereby calling for objections, respondent no.3, the brother of Uddhavrao, raised an objection contending that Uddhavrao has no right to sell the suit property. Thereafter, respondent no.3 filed suit a bearing Regular Civil Suit No.16/2001 for injunction against Uddhavrao and also moved an application for temporary injunction. Uddhavrao assured the plaintiffs that he shall execute the sale-deed after decision in the temporary injunction application. By the order dated 20.02.2001, the application for temporary injunction came to be rejected but Uddhavrao did not pay attention and failed to execute the sale- deed in favour of respondent nos.1 and 2; therefore, on 19.04.2002, they issued a notice to Uddhavrao enquiring him about the date of sale-deed. In reply, Uddhavrao contended that he did not agree to sell the suit property and claimed that the alleged transaction is a loan transaction.

3. Pursuant to the suit summons, Uddhavrao filed written statement and inter alia denied to have entered into an agreement to sell the suit property and claimed that the document dated 06.07.2000 was executed towards security of the financial assistance taken by him from respondent nos.1 and 2. It has also been adduced that respondent nos.1 and 2 did not take any steps from 22.02.2001 to 19.04.2002 and therefore, they are not entitled to seek a decree of specific performance. It was also one of the defences that the suit property is a joint property owned by Uddhavrao and his brother respondent no.3. He sought rejection of the suit.

4. Defendant no.2 (present respondent no.3) filed the written statement stating that there is no partition between him and Uddhavrao and therefore, the agreement dated 16.07.2000 is not binding on him.

5. Though, the trial Court held that Uddhavrao agreed to sell the suit property to respondent nos.1 and 2 but also observed that respondent nos.1 and 2 failed to prove that they were and are ready and willing to perform their part of the contract and consequently, dismissed the suit. The decree passed by the learned trial Court was assailed before the District Judge, Amravati. By the impugned judgment and decree, the learned Principal District Judge set aside the finding of the trial Court against the readiness and willingness of respondent nos.1 and 2 and decreed the suit by allo