The plaintiff must be ready and willing to perform his part of the contract at all times, as required by Section 16(c) of the Specific Relief Act.

SANJEEV SACHDEVA, J

FAO No. 407/2015

1. The present appeal has been filed by the appellant (plaintiff in the suit) impugning orders dated 10.02.2015 and 22.04.2015. By order dated 10.02.2015, the application of the appellant under Order 9 Rule 4 for restoration of the suit has been dismissed and by order dated 22.04.2015 the application seeking modification of order dated 10.02.2015 has also been dismissed. The said applications have been dismissed on the ground that the appellant was not ready and willing to perform his part of the contract and as such there was no ground made out to recall the order dismissing the suit on the account of non – prosecution.

2. On 04.07.2012, the plaintiff (appellant herein) filed a suit for specific performance of agreement dated 24.12.2011 alleging that the plaintiff was ready and willing to perform his part of the contract and the defendant had not come forward to register the sale deed on being offered the balance sale consideration. The defendant entered appearance in the suit and submitted on 26.07.2012, that on payment of the balance sale consideration of Rs. 51,50,000/-, the defendant was ready and willing to execute the sale deed in favour of the plaintiff. On the said contention of the defendant the Court directed the plaintiff to bring a pay order in favour of the defendant in the sum of Rs. 51,50,000/- by 01.08.2012.

3. As per the appellant (plaintiff) on 01.08.2012 the appellant took an adjournment on the ground that the counsel was not available. The case was adjourned for 07.08.2012 on which date the parties had submitted that a settlement was not possible. Accordingly, the defendant was directed to file the written statement and plaintiff was directed to furnish a bank guarantee in the sum of Rs. 51,50,000/- in favour of the Registrar General of this Court and subject to furnishing the bank guarantee, the defendant was restrained from creating any third party interest in the suit property and was further restrained from making any addition/alteration without the prior permission of the court.

4. The record reveals that the above orders were not complied with. Neither did the plaintiff bring the amount of Rs. 51,50,000/- by way of a pay order favouring the defendant for execution of the sale deed nor did the plaintiff furnishing a bank guarantee favouring the Registrar General which was the pre condition for the grant of the interim order.

5. On 14.02.2013, the learned single judge was constrained to dismiss the suit for non prosecution by recording that the plaintiff had failed to bring the pay order in favour of the defendant and even failed to furnish the bank guarantee. None had appeared on behalf of the plaintiff on the said date. Accordingly, the suit was dismissed for non prosecution.

6. The plaintiff thereafter filed an application under Order 9 Rule 4 CPC. The application was filed on 24.11.2014. The said application was filed after approximately 21 months of the suit being dismissed for non prosecution. In the application the plaintiff has submitted that the Court had given him various opportunities to pay the balance sale consideration or furnish a bank guarantee which the plaintiff could not arrange as the plaintiff had paid substantial amount for execution of the sale deed of another property.

7. It is contended that the plaintiff also had an overdraft facility from a bank against fixed deposits but the said money was spent in execution of the sale deed of another property. It is further contended that on 21.11.2014 the plaintiff had mortgaged his office and got Rs. 15 lacs which he was ready to pay to the defendant. The plaintiff in the said application has contended that the plaintiff would thereafter pay the balance sum of Rs. 36,50,000/- by paying Rs. 18 lacs on or before 31.03.2015 and the remaining Rs. 18,50,000/- on or before 30.06.2015.

8. On 10.02.2015 the application of the plaintiff for restoration of the suit was dismissed by the Court. By the im