Financial capacity of assignee is not relevant criterion.

N.V.BALASUBRAMANIAN, J.

This Letters Patent Appeal is directed against the judgment and decree in A.S.No.774 of 1984 dated 16.8.1999 rendered by a learned Single Judge of this Court.

2. This appeal arises out of a suit for specific performance. The first defendant, who is the appellant herein (hereinafter referred to as 'the appellant) is the owner of the property. According to the plaintiff, on 23.2.1975, the appellant in the appeal has agreed to sell the suit property to one Gopal Chettiar, who is the second respondent herein, the second defendant in the suit, free from all encumbrances for a consideration of Rs.53,000/- and he also received a sum of Rs.2,000/- towards advance on that day. It was agreed that the balance of sale consideration should be paid by Gopal Chettiar within a period of six months. As per the plaint averments, Gopal Chettiar was always ready and willing to pay the balance of sale price and get the ale deed executed and he approached the appellant for the same personally and through his friends, but the appellant refused to execute sale deed. It is stated that Gopal Chettiar also telegraphically contacted the appellant to get the sale deed executed and ultimately he issued a notice on 17.8.1975 for the said purpose, but the appellant did not send a reply. It is stated that on 22.2.1978, Gopal Chettiar assigned all his rights under the sale agreement dated 23.2.1975 in favour of the plaintiff, first respondent herein for a valuable consideration and hence, the plaintiff is entitled to enforce the sale agreement. It is stated that the plaintiff was ready and willing to pay the balance of sale consideration and get the sale deed executed. It is also stated that Gopal Chettiar informed the appellant about the assignment in favour of the plaintiff and since the appellant refused to execute a sale deed, the plaintiff filed the suit for specific performance of the agreement dated 23.2.1975.

3. The second respondent, Gopal Chettiar remained absent and he was set ex parte in the suit. The appellant who figured as the first defendant in the suit, in his written statement, has questioned the right of the first respondent herein to maintain the suit. According to the written statement, the plaintiff is a tenant and he wanted to retain the property under the guise of the said agreement. The appellant has denied the case of the plaintiff that time was not the essence of contract, and according to him, at no point of time, Gopal Chettiar was ready with funds and Gopal Chettiar has come forward with a false case in his notice dated 17.8.1975 as if the appellant had refused to receive a sum of Rs.10,000/-. According to him, the assignment in favour of the plaintiff is false and invalid and the plaintiff was not ready and willing to perform his part of the contract.

4. The trial Court on the basis of pleadings and evidence, held that Gopal Chettiar has not performed his part of the contract and therefore, not entitled to enforce the agreement. The trial Court also held that the plaintiff got the assignment from Gopal Chettiar and the assignment was not valid and the plaintiff could not enforce the agreement and there was no cause of action for the suit. In this view of the matter, the trial Court dismissed the suit. Aggrieved by the judgment and decree, the plaintiff filed an appeal.

5. Learned Single Judge of this Court, in his judgment, held that the plaintiff was having sources to pay the balance of sale consideration and it is not necessary that the money should be actually tendered or deposited in the Court except by the directions of the Court. Learned Single Judge held that the trial Court was not correct in holding that there is no documentary evidence to show that the plaintiff was not having money and the view of the trial Court could not be sustained. Learned Single Judge also held that the fact that the suit was filed on the last date of expiry of limitation would not preclude the plaintiff from mainta