The court ruled that for specific performance, the plaintiff must prove continued readiness and willingness to perform the contract, and obligations are reciprocal based on the agreement's terms.

JUDGMENT :

Sathish Ninan, J.

The decree for specific performance is under challenge by the defendant.

2. Ext.A1 agreement dated 23.07.2012 is sought to be specifically enforced. As per Ext.A1, an extent of 12.45 Ares of property belonging to the defendant was agreed to be conveyed to the plaintiff. The sale consideration fixed was Rs. 25,000/- per cent. On the date of agreement, an amount of Rs. 2 lakhs was paid towards advance sale consideration. The period fixed for performance was three months. Alleging failure on the part of the defendant to honour the agreement, the suit was filed.

3. The defendant admitted execution of Ext.A1 agreement and also the receipt of advance sale consideration. However, the defendant contended that the plaintiff was not ready and willing to perform his part of the contract. Thus he prayed for dismissal of the suit.

4. The trial court held that, the defendant was at fault for the non-performance of the contract. It was also found that the plaintiff was ready and willing to perform his part of the contract. While granting the decree, the Court also noticed that time was not the essence of the agreement.

5. Heard learned counsel on either side.

6. The points for determination are:-

(i) Is the finding of the trial court that, the obligations cast on the defendant under Ext.A1 were required to be performed prior to the performance of obligations cast on the plaintiff, correct ?

(ii) Is the finding of the trial court that the plaintiff was ready and willing to perform his part of the contract, sustainable on materials?

(iii) Is the discretion under section 20 of the Specific Relief Act to be exercised in favour of the plaintiff, to grant a decree for specific performance ?

7. When an agreement contains reciprocal obligations, and the performance of obligations of one side is dependent on the performance of the obligations of the other side, then, unless it is proved that the obligations to be performed prior in point of time are performed, the obligations of the other side are not required to be performed. Ext.A1 agreement provides that, within the period stipulated under the agreement, when the plaintiff on arranging the funds demands the defendant to execute the conveyance, at that time, the defendant is to convey the property on convincing the plaintiff regarding the extent of property and that it is encumbrance free. The relevant recital reads thus:-

Therefore, the obligation of the defendant arises only when a demand is made by the plaintiff to the defendant after arranging the necessary funds seeking execution of the sale deed.

8. The learned counsel for the plaintiff would argue that, since the price fixed is on centage basis, the total sale consideration payable is to be ascertained on measurement of the property. Unless the extent is ascertained and total consideration fixed, the obligation of the defendant cannot arise, it is contended.

9. The contention of the plaintiff would generally stand to reason. But here, the recitals in Ext.A1 is categoric with regard to the time of performance of the reciprocal obligations and admits of no ambiguity. The recital in Ext.A1 is specific that, the demand for performance after arranging necessary funds is to happen first in point of time whereupon the defendant is required to convince the plaintiff regarding extent and encumbrance free title. There is no ambiguity in the recital. There is no scope for any interpretation regarding the same. The finding of the trial court that the obligation of the plaintiff under Ext.A1 arises only after the performance of the obligation of the defendant is thus liable to be interfered with. Point No.(i) is answered accordingly.

10. The period fixed for performance of Ext.A1 agreement expired on 23.10.2012. There is no evidence to show that, within the said period the plaintiff had made any demands to the defendant to perform Ext.A1. On the other hand, on 19.11.2012 the defendant issued Ext.A3 notice to the plaintiff alleging failure