In a suit for specific performance, the plaintiff must prove the execution of the agreement and readiness to perform the contract, including financial capability.

COMMON JUDGMENT

R.S.A. No.175 of 2012 has been filed by the defendant in O.S. No.139/2010 on the files of the Principal Sub Court, Kottayam under Section 96 read with Order XLI Rule 1 and 2 of the Code of Civil Procedure, 1908, challenging the decree and judgment in the above case dated 22.12.2011. The respondent herein is the plaintiff in the above suit.

2. R.F.A. No.258 of 2012 also has been filed challenging the decree and judgment in the same case, at the instance of plaintiff, arraying the defendant as the respondent.

3. Heard both sides, in detail. Perused the verdict under challenge and the records of the trial court.

4. Parties in these appeals shall be referred as “plaintiff†and “defendant†with reference to their status before the trial court.

5. In a nutshell, the case of the plaintiff is that, the defendant, who is none other than her brother, executed a sale agreement on 05.02.2009 and agreed to sell the plaint schedule property, having an extent of 1 acre 10 cent, at the rate of Rs.10,000/- per cent. The further case of the plaintiff is that, on the date of execution of the agreement itself, the entire sale consideration to the tune of Rs.11 Lakh was handed over, but the sale deed was not executed, since a case pertaining to the plaint schedule property had been pending before the Munsiff Court, Changanacherry as O.S. No.282/2008. According to the plaintiff, even though the plaintiff requested and demanded execution of the sale deed in terms of Ext.A1 agreement, the same was not heeded by the defendant. Accordingly, notice was issued to the defendant to be present on 03.02.2010 at SRO, Thengana. Thereafter, the present suit was filed seeking execution of sale deed in respect of the plaint schedule property in terms of the sale agreement. In the alternative, return of advance amount also was sought for by amending the plaint. Readiness and willingness on the part of the plaintiff also was incorporated by amending the plaint.

6. The defendant filed written statement contending that, there was no agreement executed on the said date or on any other dates with regard to the plaint schedule property, either for sale or for any other purposes. The defendant had no reason or intention to sell out his property. The averments that the defendant had accepted Rs.11 Lakh also was denied. It was contended that the plaintiff had no source of income to pay the said sum to the defendant as on the date of alleged execution of the agreement. According to the defendant, the agreement was a forged one and the defendant had no connection with the same. Accordingly, he pressed for dismissal of the suit. 7. The trial court ventured the matter and raised the following issues:

1. Whether there was execution of sale agreement by defendant on 05/02/2009? 2. Whether there was advancement of ₹11 lakhs as consideration by plaintiff?

3. Is the plaintiff entitled to get a decree of specific performance of contract for sale?

4. Reliefs and costs.

8. PWs 1 to 3 examined and Exts.A1 to A4 marked on the side of the plaintiff. Ext.B1 marked on the side of the defendant.

9. On anxious consideration of the evidence tendered, the learned Sub Judge disallowed the discretionary relief of performance of contract and allowed the alternative relief of return of advance amount to the plaintiff along with interest at the rate of 6% per annum from the date of the suit till realization.

10. While assailing the grant of alternative relief, the learned counsel for the defendant argued that, Ext.A1 agreement was not executed by the defendant and the evidence supporting proof of Ext.A1 also not convincing. According to the counsel for the defendant, the plaintiff failed to prove Ext.A1 agreement and also failed to prove the source of income to advance Rs.11 Lakh, as stated in Ext.A1 agreement. Accordingly, the plaintiff is not entitled to get the alternative relief also. According to t