A plaintiff in a specific performance suit must prove continuous readiness and willingness to perform the contract, including financial capacity, which was not established in this case.

JUDGMENT & ORDER :

MALASRI NANDI, J.

Heard Mr. G. Bharadwaj, learned counsel for the appellant. Also heard Mr. M.U. Mahmud, learned counsel for the respondents.

2. This appeal is directed against the judgment and decree passed by the learned Civil Judge, Bongaigaon in T.S No.01/2016 dated 01.12.2018.

3. The predecessor in interest of the respondents brought a suit being T.S No.01/2016 in the Court of Civil Judge, Bongaigaon, for specific performance of contract and in the alternative refund of advance amount. The appellant/defendant contested the suit denying various allegations made therein and further stated that no agreement for sale was executed. The learned trial court decreed the suit in favour of the plaintiff/respondent. Hence, this appeal preferred by the appellant/defendant.

4. The appellant/defendant is the owner and absolute possessor of a plot of land measuring 6 Bighas 7 Lechas covered by Dag No.590 of periodic patta no.280 (Old), 433 (new) and the land-in-question is situated at Village- Kharija Dolaigaon Part I under Bongaigaon Revenue Circle in the district of Bongaigaon, Assam. The appellant/defendant due to his financial crunch, desires to sell a portion of aforesaid plot of land measuring 2 Bighas out of total plot of land 6 Bighas 7 Lechas.

5. On the other hand, the respondent/plaintiff was also in search of a suitable plot of land to purchase and upon negotiation between the parties, the appellant/defendant has agreed to sell a portion of land measuring 2 Bighas to the respondent/plaintiff at a total consideration of 34,50,000/- (Rupees thirty four lakhs fifty thousand) only at the rate of 17,25,000/- (Rupees seventeen lakhs twenty-five thousand) only per bigha.

6. The appellant/defendant has received a sum of Rs.4,50,000/- (Rupees four lakhs fifty thousand) only from the respondent/plaintiff out of total 34,50,000/- (Rupees thirty four lakhs fifty thousand) only and executed an agreement for sale as well as money receipt on the same day between the parties. It was agreed that the balance consideration money i.e. Rs.30,00,00/- (Rupees thirty lakhs only) shall have to be paid to the appellant/defendant by the respondent/plaintiff at the time of registration of the sale deed.

7. It was further agreed that the appellant/defendant has executed the registered sale deed in favour of the respondent/plaintiff within 3 (three) months from the date of execution of the agreement for sale and necessary land sale permission and NOC for land sale shall be obtained by the respondent/plaintiff from the competent authority upon his own expenditure.

8. However, after the lapse of 9 (nine) months, the appellant/defendant did not come forward to sell the alleged land to the respondent/plaintiff and he even did not provide the necessary documents like land holding certificate, revenue payment receipt, voter card etc. to the respondent/plaintiff to enable him to apply for land sale permission and NOC from the competent authority in spite of several request to supply the same.

9. Under such compelling circumstance, finding no other alternative, the respondent/plaintiff sent a legal notice to the appellant/defendant and again requested the appellant/defendant to register the said land in favour of the respondent/plaintiff but the defendant/appellant did not show his intention to sell his plot of land to the respondent/plaintiff. Subsequently, the respondent/plaintiff came to know from a reliable source that the appellant/defendant tried to sell the said land with higher price violating the terms and conditions of agreement for sale executed between the parties.

10. Learned counsel for the appellant/defendant has argued that the learned trial court erred in law in decreeing the suit in favour of the respondent/plaintiff as the learned trial court misinterpreted the evidence-on-record as well as misconstrued the exhibited documents. It is also submitted that the learned trial court ought to dismiss the suit of the respondent/plaintiff as the