Relief of specific performance is an equitable remedy.

The Judgment was delivered by :

This appeal has been filed against a decree for specific performance.

2. According to the plaint, there was an agreement dated 8-11-79 between the plaintiff and the defendant to sell the suit property at 28, Hanumantharoyal Kovil Street, Chennai-3 for a consideration of Rs. 1,00,000/-. The agreement is Ex. A. 1. As per clause 2 of the said agreement, Rs. 10,000/- was paid and received on the same date and the plaintiff agreed to pay a sum of Rs. 10,000/- on 15-11-79 and Rs. 20,000/- on 15-12-1979 and the balance of Rs. 60,000/- at the time of registration. It was stipulated that time was essence of the contract and that the sale shall be completed within three months of the said date i.e. on or before 31-1-80. The plaintiff offered Rs. 10,000/- on 15-11-89 to the defendant's counsel but thereafter the defendant refused to receive any amount and Rs. 10,000/- was also returned by the defendant's counsel. On 13-12-79, the plaintiff wrote a letter to the defendant offering to pay the amount. The defendant replied admitting the transaction but requesting for a copy of agreement for sale. On 23-1-80, the plaintiff sent the suit notice to which a reply was sent by the defendant containing untenable averments. The plaintiff thereupon also sent the rejoinder. Plaintiff therefore filed the suit for specific performance. Since in spite of repeated demands and reminders, the defendant refused to register the sale deed.

3. According to the defendant, plaintiff did not pay the second and the third instalments and the tender of Rs. 10,000/- to the counsel for the defendant was not a proper tender since the counsel was not authorised to receive the amount. The plaintiff never had sufficient money nor did she take any action to purchase the property. Plaintiff had no money to pay the second and the third instalments and had obviously abandoned the agreement. Since the plaintiff had not paid the second and the third instalments, there was neither readiness nor willingness on her part and hence she was not entitled to specific performance.

4. Further it was agreed that in order to obtain the income-tax clearance certificate the plaintiff had to furnish a copy of the draft sale deed which was not produced by the plaintiff until the date of the suit. It was also agreed between the parties that time was essence of the contract, since the defendant wanted to sell her properties and to purchase another at Annanagar on account of her husband's health. Because of the default committed by the plaintiff, the defendant could not do so and the real estate prices shot up thereby the defendant had to abandon the idea of purchasing an alternate property, and the defendant, as per the agreement forfeited the advance amount. Therefore, according to the defendant, the suit had to be dismissed.

5. The trial Court framed two issues and on a consideration of oral and documentary evidence, came to the conclusion that the payment of Rs. 10,000/- to the defendant's counsel was a valid payment and the failure to pay the second instalment on 15-12-1979 was only because the defendant's counsel had refunded the first instalment. The trial Court also found that the defendant had failed to perform his part of the obligation as per Ex. A. 1 agreement and held that the plaintiff had all along be ready and willing to perform his part of the contract and further more, the contention of the defendant the time was essence of the contract was also rejected by the trial Court. Therefore, the trial Court decreed the suit. The defendant has filed this appeal.

6. When the matter came up for hearing, the counsel for the respondent Mr. Dharamchand Jain filed C.M.P. No. 4864/2000 for amendment of the plaint by adding the words regarding "readiness" and "willingness". According to the counsel for the respondent this was inadvertently left out. He referred to the decision reported in (1998) 1 CTC (sic) (Supreme Court), where the Supreme Court allowed a