IMPORTANT POINT
When the plaintiff failed to discharge his burden as aforesaid, he cannot take the advantage of the failure of the defendants to perform his part as per the agreement for sale. The plaintiff has approached the trial court to obtain a direction to the defendants to execute the sale deed in respect of the property agreed to be sold in his favour. Therefore, evidence must come on record to establish either that he has already performed his part or that he is ready and willing to perform his part of the contract

JUDGMENT :

MARY JOSEPH, J.

1. This appeal is against the judgment and decree dated 03.02.2009 of Principal Sub Court, Kollam in O.S No. 73 of 2006. A suit for specific performance of agreement for sale executed among the plaintiff and defendants on 11.12.2004 was filed by the plaintiff against defendants. The case of the plaintiff was that as per the agreement for sale executed among himself and the defendants, 33½ cents of property comprised in Re-Sy. No. 703/9 and 703/14-1 of Clappana village obtained by the defendants jointly by virtue of sale deed Nos. 3748/94, 3749/04 and 3470/98 have been agreed to be sold to the plaintiff for a total sale consideration of Rs. 5¼ lakhs. Rs. 1,50,000/- was paid by the plaintiff to the defendants as advance sale consideration on 11.12.2004 itself. Time limit of six months from the date of agreement was fixed for executing the sale deed. Though the plaintiff was ready and willing to pay the balance sale consideration within 6 months itself, in view of the request of the defendants for extended time, his part could not be performed. According to the plaintiff though the defendants were requested to appear before the Sub Registry, Oachira alongwith the relevant documents pertaining to title of the property proposed to be sold, the execution of the sale deed could not be accomplished for his failure to attend there. The plaintiff came to know that the defendants are taking hasty steps to sell the properties to strangers in violation of the agreement for sale executed by them. The suit in question was filed seeking for a direction to the defendants to execute the sale deed in favour of the plaintiff after receiving the balance sale consideration. An order of injunction was also sought for restraining the defendants from alienating the plaint schedule property or from committing any wastes and mischief's therein.

2. The defendants entered appearance in the suit and in the joint written statement filed, have contended that they are ready and willing to perform the part assigned to them by the terms of the agreement for sale and are ready and willing to execute the sale deed in favour of the plaintiff. Despite approaching the plaintiff several times and expressing their willingness to execute the sale deed on or before 10.06.2005, the plaintiff has failed to pay the balance sale consideration and in that context, the advance sale consideration paid by him was forfeited as per the terms of the agreement for sale. The documents pertaining to the properties proposed to be sold were handed over to the plaintiff at the time of execution of the agreement itself. On 10.06.2005, the date of expiry of six months' period provided in the agreement for sale, though the defendants were personally present before the Sub Registry Office, Oachira and waited there till 5 pm with a view to execute the sale deed, despite any information transpired to him, the plaintiff did not turn up to perform his part and therefore the execution of the sale deed failed. Though mediators intervened with a request for grant of further time and time was extended for two days, the execution of sale deed was not materialised. On 13.06.2005, the defendants made themselves available personally before Sub Registry Office, Oachira and remained there till 5 p.m. but the plaintiff willfully evaded to present there personally to execute the sale deed. The original title deed and other documents related to the property proposed to be sold to the plaintiff were also handed over by the defendants. It was also stipulated in the agreement for sale that if execution of sale deed was not accomplished within the time granted, the amount given as advance sale consideration to the defendants will be forfeited. Therefore, knowingly that the failure of the plaintiff to perform his part of the contract would result in forfeiture of the amount paid as advance sale consideration, the plaintiff entered into the agreement. According to the defendants absolutely