The Plaintiff must prove continuous readiness and willingness to perform the contract, and the significance of time as the essence of the contract.

1. This Second Appeal is directed against the judgment dated 15.07.1999 in A.S.No.41 of 1998 on the file of District Court, Vellore, reversing the judgment of trial court dated 25.09.1998 in O.S.No.313 of 1993 on the file of Sub-Court, Ranipet, and thereby, dismissing Plaintiffs suit for specific performance. Unsuccessful Plaintiff is the Appellant.

2.The Plaintiff and Defendant are brothers. There is no dispute that Defendant entered into an agreement of sale (Ex.A1) agreeing to sell the suit property to the Plaintiff for a consideration of Rs.1,75,000/-. On 012. 1991, the Defendant had received a sum of Rs.10,000/- as advance. Execution of Ex.A1-Sale Agreement and receiving of Rs.10,000/- as advance are admitted.

3.Case of Plaintiff is that he was always ready and willing to perform his part of the contract. But, the Defendant has been evading execution of sale deed under false pretext. Plaintiff issued Ex.A2 notice dated 30.08.1993, calling upon the Defendant to execute the sale deed as per Ex.A1. The Defendant had issued Ex.A3 reply by referring to a Panchayat and cancellation of suit agreement of sale. Thereafter, Plaintiff filed a suit for specific performance.

4.Admitting execution of Ex.A1-Sale Agreement, Defendant filed a written statement contending that on 13.01.1993, a Panchayat was convened, in which, as per the decision of the Panchayatars, the Defendant had refunded the advance amount of Rs.10,000/- to the Plaintiff in the presence of Natesa Naicker and Kailasam. Since the agreement of sale was cancelled, Defendant is not bound to execute the sale deed.

5.On the above pleadings, relevant issues were framed. The trial court held that the time was not the essence of contract and Plaintiff was always ready and willing to perform his part of the contract. The Trial court rejected the defence plea that there was Panchayat on 13.01.1993 and the Defendant returned the advance amount to the Plaintiff. On those findings, the trial court decreed the suit for specific performance.

6.Aggrieved, Defendant has filed A.S.No.41 of 1998. Pointing out that under Ex.A1, three months time was stipulated and holding that Plaintiff has not proved continuous willingness, the Lower Appellate Court reversed the findings of the trial court and allowed the appeal. However, the Lower Appellate Court did not accept the defence plea that on 13.01.1993 there was a Panchayat and Defendant had repaid the advance of Rs.10,000/-.

7.At the time of admission the following substantial question of law was formulated for consideration:

"Whether the Lower Appellate Court is right in finding that the appellant had not been continuously willing to perform the contract in the circumstances of the case?"

8.Challenging the findings of the Lower Appellate Court, learned counsel for the Appellant contended that the Lower Appellate Court ignored the evidence and materials showing that the Plaintiff was always ready and willing to perform his part of the contract. It was further submitted that the Lower Appellate Court brushed aside the deposit of Rs.6,720/- for purchase of stamp papers and Ex.A6 proceedings issued by the Tahsildar, for refund of the said amount. Learned counsel further argued that granting the relief of specific performance is an ordinary rule, unless there is compelling reason to deny the same. In support of his contention, the learned counsel placed reliance upon number of decisions AIR 2006 SC 1144; AIR 2006 SC 2172; AIR 2008 SC 143 and AIR 2006 SC 970.

9.Reiterating the findings of Lower Appellate Court, learned Senior counsel for the Respondent / Plaintiff Mr.Subramani, submitted that taking note of the location of the property and increase in price, the Lower Appellate Court rightly held that the time was not the essence of contract and rightly declined the discretionary relief of specific performance. The learned Senior counsel submitted that Plaintiff had nor proved his continuous readiness and willingness.

10.Admittedly,