The plaintiff must prove readiness and willingness to perform her part of the contract by convincing and reliable evidence to obtain a decree for specific performance of contract.

MUNGESHWAR SAHOO, J

1. The plaintiff has filed this first appeal against the Judgment dated 25.11.1992 and the decree following thereupon signed on 11.12.1992 by the learned Sub-Judge-1st, Patna in Title Suit No.193 of 1986 dismissing the plaintiff-appellant's suit for specific performance of contract.

2. The plaintiff-appellant filed the aforesaid Title Suit No.193 of 1986 for a decree of specific performance of contract for sale against the defendant and alternatively for a decree for refund of earnest money of Rs. 33,000/- with interest against the defendant.

3. According to the plaintiff's case the defendant-respondent entered into a contract with the plaintiff for sale of 3 Katthas out of 45 decimals of land comprised within M.S. Plot No. 5158 Holding No. 136/134 in Ward No. 37/32 corresponding to survey Plot No. 327 for a consideration of Rs. 66,000/-. The plaintiff paid Rs. 33,000/- as earnest money on 12.11.1983 and defendant executed a bai bayana deed in favour of the plaintiff and handed over the same to the plaintiff. The defendant undertook to obtain permission from the competent authority for executing sale deeds. The date was fixed to 11.7.1984 within which the sale deed was to be executed and it was agreed that at the time of registration the plaintiff will pay the balance consideration amount of Rs. 33,000/-. The further case of the plaintiff is that the plaintiff requested the defendant several times through her husband to execute and register the sale deed on receipt of the balance consideration amount but the defendant always put off the matter on one pretext or other. Therefore, on 21.6.1984 the plaintiff served a registered notice through her Advocate but a false and collusive report was made by the postal peon and returned the notice. Then the plaintiff by way of last chance served the defendant another registered notice on 7.4.1986 calling upon the defendant to execute and register the sale deed after receiving the balance consideration amount within one month but in spite of receipt of the said notice the defendant did not -execute the sale deed. Hence the suit. The plaintiff's further case is that she was always ready and is still ready to pay the balance consideration amount and get the sale deed executed and registered.

4. On being noticed the defendant-respondent appeared and filed a contesting written statement. The defendant's case in short is that when he was in need of money he had taken an accommodative loan of Rs. 10,000/- on 1.4.1983 from Ashok Kumar. Subsequently, the defendant tried to refund him Rs. 8,000/- but Ashok Kumar refused to accept it. On 12.11.1983 the said Ashok Kumar called this defendant at his residence with tax and rent receipt of the land. The defendant went there, then Ashok Kumar took out a non-judicial stamp paper and asked the scribe, who was sitting there from before, to draft the deed of agreement and it was scribed by Ved Prakash Jaiswal. The defendant did not agree to the said proposal mentioned in the agreement. Moreover, the price of the land was mentioned very low. Therefore, Ashok Kumar assured the defendant that he will not get the same enforced and the defendant could not understand its legal impact and was dominated by Ashok Kumar and other person and the defendant signed the agreement which is fake, false, showy and frivolous deed of agreement and no consideration money was paid to the defendant. The said Ashok Kumar is one of the witnesses in the agreement of sale dated 12.11.1983 Ext.-1. The further case is that the defendant had no intention to sell the suit land as the suit land faces roads on two sides and is very suitable for house and godown for his business. Since there was no contract, there is no question of undertaking to obtain permission and also there was no question of readiness and willingness of the plaintiff. No notice was ever served on him.

5. On the basis of the pleadings of the parties the learned court below framed the following is