Option can be exercised even at the appellate stage.

K. M. NATARAJAN, J.

This appeal is preferred by the plaintiff in O. S. No. 817 of 1979 on the file of the Subordinate Judge, Madurai, challenging the decree and judgment in the said suit dismissing the main relief regarding specific performance but granting the alternative relief directing the defendant to pay the amount paid by the plaintiff. For the sake of convenience, the array of parties in the court below is adopted herealso.

2. The case of the plaintiff as disclosed in the plaint can be briefly stated as follows: The defendant agreed to convey the suit property to the plaintiff and both of them entered into a contract of sale under an agreement dated 23-10-1978. As per the terms of the agreement, the defendant agreed to sell the property for a consideration of Rupees 89, 000/-. A sum of Rs. 5, 001/- was paid on the date of the agreement as advance and has been acknowledged by the defendant in the agreement itself. The period of performance under the sale agreement is 4 months. As per the terms of the contract, the defendant has to vacate the tenant from the scheduled property and deliver possession to the plaintiff with keys at the time of execution and registration of the sale deed. The plaintiff was directed to discharge the existing equitable mortgage liability over the suit property.

3. In pursuance of the terms of the contract of sale, the plaintiff discharged the existing encumbrance over the suit property on payment of Rs. 31, 500/ - from out of the sale consideration on 6-12-1978. The plaintiff paid a further sum of Rs. 3, 500/- as the defendant wanted a further advance and she has also acknowledged the same. After deducting the above payments, the plaintiff has to pay a balance of Rs. 48, 999/- to the defendant towards the sale consideration at the time of execution of the sale deed. Even though the defendant undertook to vacate the tenant within the stipulated time, the defendant requested the plaintiff for extension of time for performance of the contract as she was unable to vacate the tenant and by consent of both the parties, time was extended for a further period of 3 months from 11-2-1979 and the same has been endorsed in the suit agreement. It is stated that though the plaintiff was always ready and willing to perform her part of the contract from the beginning, the defendant was not performing the same. Notice was issued by the plaintiff on 4-5-1979 calling upon the defendant to perform her part of the contract by expressing her readiness and willingness to perform the contract. The defendant wantonly delayed the receipt of the notice and chose to send a reply dated 15-5-1979 contending false and untrue allegations. The plaintiff also issued a telegram on 8-5-1979 calling upon the defendant to perform her part of the contract. The defendant through her husband approached the father of the plaintiff and pleaded for some more time. The plaintiff's father believed the words and expected the defendant to honour her commitment. But, since the defendant and her husband did not evince any interest, another notice was issued on 16-6-1979 giving one more opportunity to the defendant to perform her part of the contract. A reply dated 25-6-1979 was sent with false allegations. Since the defendant has committed breach of contract, the plaintiff laid the suit for specific performance of the sale agreement dated 23-10-1978 expressing her readiness to deposit the balance of sale consideration as and when directed by the court. She has prayed for the relief of specific performance of the suit agreement directing the defendant to execute the sale deed after receiving the balance of sale consideration of Rs. 48, 999/- and deliver possession. She also alternatively prayed for a decree directing the defendant to pay the plaintiff Rs. 40, 001/- being the amount paid by her to the defendant with interest at 12 per cent per annum.

4. The said suit was resisted by the defendant and in the written statement, the defend