The plaintiff failed to prove execution of the agreement and her readiness to perform, justifying the trial court's dismissal of the specific performance suit.

JUDGMENT :

Sathish Ninan, J.

The suit for specific performance of an agreement for sale and for an injunction, was dismissed by the trial court. The plaintiff is in appeal.

2. According to the plaintiff, on 20.09.2004 Ext.A1 Agreement was entered into between the plaintiff and the defendants whereunder, an extent of 5.87 acres of property was agreed to be conveyed by the defendants to the plaintiff. The sale consideration fixed was Rs.15,215/- per cent. An amount of Rs.4,50,000/- was the advance sale consideration, out of which Rs.4,00,000/- was paid towards the subsisting Bank liability of the 2^nd defendant and Rs.50,000/- was paid in cash. The period fixed for performance was one year. Out of the total extent of property under Ext.A1, the 2^nd defendant was the owner of 90 cents. Since he was in need of money, he conveyed 50 cents to the plaintiff, her husband and his brother on 13.09.2005 under five sale deeds namely, Exts.A5, A7, A9, A22 and A23. The consideration of Rs.7,60,750/- was paid by the plaintiff. The 2^nd defendant also received a further amount of Rs.2,00,000/- from him. Alleging that the defendants committed the breach of contract, the suit was filed seeking specific performance and for injunction against alienation and waste.

3. The 3^rd defendant denied the execution of Ext.A1 Agreement. He alleged that it is a forged document. The other defendants contended that the plaintiff was not ready and willing to perform the agreement resulting in its non-performance. It was also alleged that the plaintiff did not have sufficient funds to go ahead with the transaction. The allegation that the defendants committed breach, was denied.

4. The trial court held that it was the plaintiff who committed the breach, and accordingly dismissed the suit.

5. We have heard the learned counsel on either side.

6. The points that arise for determination are;

i) Is Ext.A1 Agreement executed by the 3^rd defendant?

ii) Is the finding of the trial court that it was the plaintiff who committed breach of the contract, sustainable on the evidence?

iii) Does the decree and judgment of the trial court warrant any interference?

7. The 3^rd defendant denied execution of Ext.A1 Agreement. It is his contention that the signature seen in Ext.A1 is not his. To prove that he was not available in India on the date of Ext.A1 namely, on 20.09.2004, he has produced Exts.B1 and B2 passport. DW3 is the wife and the power of attorney holder of the 3^rd defendant. She has deposed that the 3^rd defendant was not available in station on the date of Ext. A1. He had left to Gulf on 24.09.2003 and returned to India only on 15.04.2005. She referred to the relevant pages of Exts.B1 and B2. The stamps of the Embassy prove the same. Therefore, the 3^rd defendant was not available in station at the time of execution of Ext.A1 Agreement. There is no case that Ext.A1 was got signed from the 3^rd defendant by forwarding the same to him abroad. The learned counsel for the appellant-plaintiff referred to Ext.A17 notice dated 18.10.2005 issued by the defendants through a lawyer. Therein it is stated that the notice is being issued on behalf of all the defendants. In Ext.A17 notice, the plaintiff was called upon to appear before the Sub Registry Office on 19.09.2005 and 20.09.2005 for execution of the sale deed. Therefore the execution of Ext.A1 is admitted by the 3^rd defendant, is the argument. However, DW3 denied Ext.A1 and also pleaded ignorance of Ext.A17. As noticed earlier, the 3^rd defendant was not available in India. There is no case that, for and on behalf of the 3^rd defendant, the signature in Ext.A1 was affixed by someone else. In such circumstances, the mere statement in Ext.A17 will in no way help the plaintiff to prove that the execution of Ext.A1 by the 3^rd defendant. We hold that the 3^rd defendant has not executed Ext.A1 agreement. Point No. (i)