The central legal point established in the judgment is that the plaintiff's failure to demonstrate readiness and willingness to perform his part of the contract, and the giving of an option to pay back the money in lieu of specific performance, led to the dismissal of the suit for specific performance.

Dr. Vineet Kothari, J.-This second appeal is directed against the Judgment and decree of the learned First Appellate Court of Additional District Judge No. 2, Alwar dated 10.03.1993 whereby the Judgment and decree of the learned trial Court dated 17.01.1990 passed by the learned Additional Civil Judge No. 2, Alwar was upheld and suit of plaintiff Ramcharan for specific performance was decreed against the defendant Harsahai S/o Shri Poonya Meena. This is defendants appeal with a following substantial question of law formulated by this Court while admitting the present second appeal:-“Whether a decree for specific performance could legally be granted as here without going into the question of fact whether the vendee was ready and willing to perform; his part of contract?”

2. The facts giving rise to the present second appeal are like this: as per the plaint the defendant Harsahai S/o Shri Poonya Meena agreed to sell his house a Haveli situated at Prithvipura, Alwar for a sum of Rs. 8,000/-to plaintiff Ramcharan and an agreement to this effect Exhibit-1 was executed by him on 09.08.1975 and under the said agreement a sum of Rs. 6,500/-was given by plaintiff Ramcharan to him with the stipulation that the balance amount of Rs. 1,500/-was to be paid by the plaintiff before the Sub-Registrar at the time of registration of the sale-deed which was to be executed by Jesth Sudhi Samvat 2033 corresponding to 31.05.1976.

3. It was further pleaded that the defendant Harsahai despite several verbal and written requests avoided registration of the property and execution of sale-deed that the plaintiff Ramcharan was always ready and willing to pay the balance sale price and complete other formalities but since the defendant refused to execute the said sale-deed, the suit was filed on 08.08.1978 seeking specific performance of the contract and in the alternative for refund of Rs. 6,500/-with interest @ 12% p.a. Seven issues were framed by the learned trial Court including one for relief . The first four issues were decided in favour of the plaintiff . The 5th issue as to whether the defendant had given as a consideration of loan taken from plaintiff s father the crop quantifying 80 Man Chana and 70 Man Wheat. The trial Court held that the defendant had failed to prove this. The Issue No. 6 was also decided in favour of the plaintiff and against the defendant.

4. The learned trial Court accordingly decreed the suit and held that defendant Harsahai was to execute the sale-deed in pursuance of the agreement dated 09.08.1975 within a period of two months.

5. The said Judgment and decree of the learned trial Court was upheld by the first appellate Court also vide its Judgment dated 10.03.1993.

6. Being aggrieved by the same, this second appeal has been preferred before this Court by the defendant.

7. Shri B.L. Mandhana, learned Counsel appearing for the defendant appellant Harsahai urged before this Court that there has been a complete misreading of the evidence led before the trial Court and on a correct and proper construction of the agreement Exhibit-1, it will be clear that it was essentially an transaction of loan given by the plaintiff Ramcharan to the defendant Harsahai and for securing the repayment of loan, the said agreement purporting to be an Agreement to Sell was got executed. The terms of the said agreement clearly stipulate that if the defendant fails to execute the sale-deed by the stipulated date, the plaintiff shall be entitled to refund of the said sum of Rs. 6,500/-

and further sum of Rs. 6,500/-as a damages and total sum of Rs. 13,000/-and in case the plaintiff refused to purchase the said property, the said sum of Rs. 6,500/-given to the defendant shall be waived and be liable to be forfeited. The said agreement Exhibit-1 is duly signed by the defendant Harsahai alongwith two attesting witnesses Gopi Ram S/o Shri Harnarain and Prabhu Dayal S/o Shri Panchu Ram. While execution of the said document is not in dispute, the