The plaintiff must demonstrate readiness and willingness to perform the contract to seek specific performance.

Mungeshwar Sahoo, J.

1. The defendant, Smt. Sabitri Devi has filed this First Appeal against the Judgment dated 7.8.1992 and the Decree following thereupon singed on 14.8.1992 by Sri Umakant Srivastava, the leaned 1st Subordinate Judge, Ara in Title Suit No. 56 of 1986 decreeing the plaintiff-respondents suit for specific performance of contract.

2. The plaintiff-respondent filed the aforesaid suit for specific performance of contract alleging that the defendant is owner of the suit property entered into an agreement on 17.9.85 to sell the property described in Schedule-1 of the plaint for a consideration of Rs. 2,90,000/-. Rs. 1,051/- was paid by the plaintiff as shagun at the time of negotiation and executed the agreement on receiving advance of Rs. 50,000/-. The defendant agreed to execute sale deed by 5th March, 1986. The defendant did not execute the sale deed by 5.3.1986 and requested the plaintiff to allow time for vacating the house and, therefore time was extended up to 28.4.1986 and the sale deed was to be executed by 29.4.86. The plaintiff was all along ready and willing to perform her part of the contract.

3. The further case is that the defendant was in need of money and requested the plaintiff to pay Rs. 40,000/- and the plaintiff paid Rs. 40,000/- to the defendant. At the time of extension of time, the defendant has also received Rs. 10,000/- from the plaintiff. Therefore, the plaintiff has paid total Rs. 1,01,051/- and the remaining Rs. 1,88,949/- remain to be paid as balance consideration amount. The defendant had also taken Rs. 40,000/- from the plaintiff for the purchase of stamp for sale deed. The plaintiff is all along ready to pay the balance consideration and get the sale deed executed but the defendant is delaying the execution of the same. On 28.4.86, the defendant refused to execute the sale deed. Hence the suit was filed on 29.4.86.

4. On being noticed the defendant- appellant appeared and filed a contesting written statement. The main defence of the appellant is that at the instance of the plaintiff, the time was extended because she was not able to pay the balance consideration amount. The execution of the contract dated 17.9.85 is admitted. However, according to the defendant only Rs. 50,000/- was paid by the plaintiff as advance and at the time of extention of time for second time Rs. 10,000/- was paid again by the plaintiff. Therefore, the defendant accepted to have received only Rs. 60,000/- as consideration amount. The payment of other amount alleged by the plaintiff has been denied by the defendant.

5. The further defence is that the total amount remained due was Rs. 2,30,000/- but the plaintiff was never ready to pay the said dues and got the sale deed executed, therefore, the defendant served a notice through her Advocate but no reply was sent by the plaintiff. Again a registered notice was given by the defendant on 21.4.86 but the plaintiff did not pay balance consideration amount nor they got the sale deed executed. It is further alleged that the plaintiff was never ready and willing to perform her part of the contract. And that the defendant never refused to execute and register the sale deed.

6. On the basis of the above pleadings, the learned Court below framed 5 issues:

(i) Is the suit as framed maintainable?

(ii) Is the plaintiff got any valid cause of action for the suit?

(iii) Is the suit barred by limitation?

(iv) Is the plaintiff entitled to a decree as claimed for?

(v) To what other relief or reliefs the plaintiff is entitled for?

7. After trial the learned Court below while deciding issue No. 4, found that the plaintiff had paid Rs. 60,000/- only as advance and she was ready and willing to perform her part of the contract and she is still ready to perform her part of the contract and pay the rest consideration money. On this finding, the plaintiff-respondents suit was decreed and the defendant-appellant was directed to execute sale deed after receiving the amount or Rs