IMPORTANT POINT
The plaintiff's failure to demonstrate readiness and willingness to perform the contract led to the dismissal of the appeal for specific performance.

JUDGMENT :

Subhash Chand, J.

1. The instant First Appeal has been directed against the Judgment dated 04.09.2018 and decree dated 18.09.2018 whereby the suit of plaintiff for the specific performance has been dismissed and allowed the alternate relief for refund of the earnest money along with interest.

2. The brief facts leading to this First Appeal are that the plaintiff had instituted a suit with these averments that the plaintiff is the permanent resident of Seraikella town having his house and other landed properties, and the landed property situated in mouza Kudarsai, Thana No. 302, Khata No. 18 belonged to and stood recorded in the name of late Kalipada Daroga who was the father of principal defendant No. 1 and after his death the property was amicably divided between the principal defendant no. 1 and his brothers in which the lands described in the schedule of the plaint fell in share of the principal defendant which is situated in the jurisdiction of this Court. The principal defendant proposed to sell the suit land to plaintiff in consideration of Rs. 30,60,000/- to which plaintiff agreed and consequently an agreement to sale was executed between plaintiff and defendant No. 1 on 21.01.2012 and it was also notarized in presence of proforma defendant No. 2 and 3. Initially Rs. 2,00,000/- was paid as advance in cash and cheque duly acknowledged and agreed between the parties that the plaintiff will pay the balance amount Rs. 28,60,000/- as per convenience before registration of the sale-deed to defendant No. 1. According to the terms of the agreement Rs. 4,00,000/- were also further paid. Out of which 1,00,000/- was paid through cheque No. 913770 and Rs. 3,00,000/- were paid in cash to the principal defendant on 30.04.2012 in presence of proforma defendant No. 2 and 3 and other witnesses. The receipt of the same was also given to the plaintiff acknowledging the payment. Hence the balance amount of Rs. 24,60,000/- was to be paid by the plaintiff at the time of execution and registration of sale-deed. During the pendency of the suit defendant No. 1 Sudhena @ Sano Darogha died and after his death his legal heirs 1(a) to 1(d) were substituted.

2.1 The defendant No. 1 through his Counsel had sent a legal notice by registered post on 08.09.2012 informing that he was ready to execute the sale-deed in favour of the plaintiff and also requested for payment of the balance amount of the consideration. The plaintiff on 13.12.2012 through his Advocate informed the Counsel for the defendant No. 1 in regard to readiness to pay the balance amount as per terms of the agreement dated 21.01.2012. It is also further case of the plaintiff that on 17.10.2012 a cheque bearing No. 657965 of Rs. 5,00,000/- also drawn at S.B.I. Seraikella was issued to defendant No. 1 by registered post but the defendant No. 1 with oblique motive instead of en-cashing it returned the same to plaintiff on 20.10.2012 through his Counsel and the plaintiff had collected the balance amount of Rs. 24,60,000/- for payment to defendant No. 1 and requested him to receive the balance amount and execute the sale-deed in 1st week of December, 2012 but the defendant No. 1 evaded to receive the same on false pretext whereas the plaintiff was and is always ready to perform his part of contract but the defendant did not.

2.2 The agreement dated 21.01.2012 still subsists but the defendant No. 1 flatly refused to execute the sale-deed in 2nd week of December, 2012 and denied to receive the balance amount in spite of repeated request made by the plaintiff. The sons of the defendants who had also negotiated in the deal have been arrayed as proforma defendants in the suit. The cause of action for filing the suit arose on 20.10.2012 when the cheque of Rs. 5,00,000/- was returned by defendant No. 1 in 2nd week of December, 2012 and defendant flatly refused to execute and register the sale-deed in favour of the plaintiff. The plaintiff had always been ready and willing to perform his part o