The judgment emphasizes the importance of proving readiness and willingness to perform a contract for specific performance, as well as the limited scope of interference in concurrent findings of fact under Section 100 of the Code of Civil Procedure.

JUDGMENT :

1. Present Second Appeal has been preferred by the appellant – original defendant against the concurrent findings of the learned Courts below arising out of the suit for specific performance of contract, declaration, possession and perpetual injunction of the premises.

2. The factual matrix of the dispute between the parties are as under:

2.1 That the respondent filed the suit for specific performance of contract, declaration, possession and perpetual injunction of the suit premises, wherein the shop no.2-A and 2-B situated at first floor of Bombay Shopping Center Premises Cooperative Housing Society Ltd., Race Course, Vadodara.

2.2 The appellant – defendant no.1, who is a Doctor- Radiologist by profession and has his x-ray unit at the said Bombay Shopping Center, approached the respondent – plaintiff and offered to sale the suit premises for sum of Rs.3,00,000/-. After negotiation, an agreement to sale was executed on 19th October, 2006 at Baroda between appellant - defendant no.1 and the respondent – plaintiff. The said agreement to sale duly reduced in writing and is registered with the office of the Sub-Registrar, Vadodara on 19th October, 2006 vide registration Entry no.4853. Before the Registry, the signature, fingerprints and photographs were taken and document was registered in accordance with law of registration. The respondent – plaintiff has made payment of Rs.1,00,000/- by Account Payee Cheque no.026098 dated 19th October, 2006 of Central Bank of India, Kevda Baugh, Vadodara as part payment to the appellant – defendant no.1. It is averred that there is a clear mention of said payment in an agreement to sale which is duly authenticated by the appellant – defendant no.1. It was agreed between the parties that within two years, upon receipt of balance amount, the appellant – defendant no.1 would execute the sale deed and hand over the physical possession of the property referred to in the agreement dated 19th October, 2006 to the respondent – plaintiff. It is stated that after having signed and executed an agreement, the appellant - defendant no.1 developed greed on account of some misconception that he had sold the property below market value, and became confused with double mind. The appellant – defendant no.1 upon ill advice, deliberately did not present the aforesaid cheque neither did bother to inform the respondent – plaintiff that he was not presenting the cheque. The respondent – plaintiff was all the way under impression that appellant – defendant no.1 would at his convenience present the cheque and, therefore, the maintained the adequate balance in his account from which the cheque was issued to the appellant – defendant no.1. However, upon inquiry to the surpose of the respondent – plaintiff, it was found that the appellant – defendant no.1 had not tendered the cheque for payment for unreasonable long period and that validity period of cheque was nearing expiry. The respondent – plaintiff in order to clear the mist through his advocate issued a notice dated 30th January, 2007 to appellant – defendant no.1. The appellant – defendant no.1 was informed that by non-tendering the cheque, which is as good as cash by the appellant – defendant no.1 would not help him get absolved from his legal liability. The appellant – defendant no.1 having received the notice dated 30th January, 2007 sent a reply thereof on 29th March, 2007 after almost two months and in the said reply the appellant – defendant no.1 concocted the story that cheque in question was returned to the respondent – plaintiff. The respondent – plaintiff is ready and willing to pay the remaining due amount of consideration to the appellant – defendant no.1.

2.3 The appellant – defendant no.1 duly served with the summons and he filed a written statement Exh.20. The learned trial Judge on receipt of the written statement framed the Issues at Exh.53 and invited parties to prove the pleadings. After hearing the arguments of the parties and conside