The plaintiff must prove readiness and willingness to perform contractual obligations for specific performance; failure to do so results in dismissal of the suit.

Judgment :

(Rajani Dubey, J.)

1. The plaintiff/appellant has preferred this first appeal being aggrieved by the judgment and decree dated 05.12.2018 passed by 1^st Additional District Judge, Raigarh (C.G.), in Civil Suit No.12-A/2014, whereby the suit filed by the plaintiff/appellant herein for specific performance of contract was dismissed. The parties to this appeal shall be referred herein as per their description before the learned trial Court.

2. Brief facts of the case, as per the plaint averments, are that on 17.10.2010, defendant No.1 executed an agreement to sell of land bearing Kh. No.2/10/1(5/5/2) area 0.117 hectare, 12585 sq.ft., P.H. No.13 situated at village Baikunthpur, Tahsil and District Raigarh (C.G.) (for short ‘the suit land’) which was in his possession for sale consideration of Rs.438/- per sq. ft. and received Rs.10,00,000/- as earnest money from the plaintiff, and it was agreed between the parties that the sale deed would be executed after receiving balance consideration from the plaintiff till 15.01.2011. It was pleaded in the plaint that the plaintiff requested the defendant No.1 many times to receive balance sale consideration of Rs.45,12,230/- and execute the sale deed, but it was told by the defendant No.1 that he would inform the plaintiff after receiving map and photocopy of sale. It was also pleaded that the plaintiff was always ready and willing to perform his part of contract and comply with the contract dated 17.10.2010. The plaintiff also sent a notice to defendant No.1 on 14.10.2013 through his Advocate, and on receipt of notice, the defendant No.1 assured the plaintiff that he would obtain copy of sale and map and get the sale deed executed within one month, but till date the defendant No.1 did not comply with it. Therefore, the suit for specific performance of contract was filed by the plaintiff.

3. The defendant No. 01 has filed written statement to the effect that defendant No.1 has not executed agreement dated 17.10.2010 with the plaintiff with regard to the suit property and he has not received Rs.10,00,000/- as advance from the plaintiff. It was also averred that the defendant No.1 has not executed any agreement or any deal with the plaintiff. There is no cause of action in the suit. The suit is time barred and no ad valorem court fee has been paid, therefore, the suit is liable to be dismissed.

4. The learned trial Court, after appreciating the oral and documentary evidence, dismissed the suit of the plaintiff holding that the suit is time barred and the plaintiff has failed to prove his case. Hence, this first appeal filed by the plaintiff.

5. Learned counsel for the plaintiff/appellant submits that the learned trial Court recorded its finding that the plaintiff had established the execution of agreement to sell by the defendant No.1, which was binding on the parties in respect of the property described in the suit and the defendant No.1 also received advance amount of Rs.10 Lakhs but the learned trial Court dismissed the suit of the plaintiff holding that the plaintiff has failed to prove that she was ready and willing to perform her part of contract, which is at all not sustainable in the eye of law. Learned counsel further submits that in a case of specific performance the plaintiff has to prove valid agreement of sale, breach of contract by defendant and readiness & willingness on the part of plaintiff to perform his/her part of obligation in terms of the contract, and in the present case the proper issue was framed by the learned trial Court and the issue No.1 with regard to execution of agreement was proved in favour of the plaintiff. The only obligation cast in the agreement on the plaintiff was to pay the balance sale consideration on the date of registration and the plaintiff has been ready and willing at all material time to pay the balance sale consideration amount to the defendant No.1 on execution of the deed of conveyance of the suit property. Even the plaintiff through his