The plaintiff must continuously demonstrate readiness and willingness to perform the contract from the date of agreement to the date of hearing. Seeking a refund of the advance amount without reserving the right to seek specific performance may amount to abandoning the right to enforce the contract.

1. The defendant in O.S. No. 474 of 1988 on the file of the Sub-Court, Erode, being aggrieved by the judgment and decree dated 8.11.1991 passed therein has filed the above appeal.

2. For the sake of convenience, the parties are referred to as per their ranking in the suit.

3. The Trial Court has granted a decree directing the defendant to receive the balance sale consideration of Rs.31,000 and execute the Sale Deed and hand over the possession to him. The brief facts of the case are set out here under:

The plaintiff has pleaded that the defendant as the owner of the house site, which is the suit property, entered into a written agreement dated 15.7.1988 with the plaintiff, agreeing to sell the suit property to him for a sale consideration of Rs.51,000 and on the same date, the plaintiff paid a sum of Rs.20,000 as advance. The balance amount of Rs.31,000 is payable within 15th of Aypasi month of the current Tamil year by the plaintiff and he must get a registered sale deed at his own costs. In the same agreement, it is stated that if the plaintiff commits default, he would forfeit the advance amount and in case if the defendant commits default the plaintiff is entitled to remit the balance amount into Court and seek specific performance of the sale agreement.

4. The other conditions in the sale agreement are that the defendant is bound to convey the schedule properties free of encumbrance and he should deliver possession of the suit property. It is further pleaded that the defendant is heavily indebted to third parties. The defendant’s brother one Rajendran informed the plaintiff that the defendant had borrowed from him under pro-notes and that unless his debts are discharged, the plaintiff should not purchase the schedule property. Though the plaintiff had al ready gathered the balance amount payable under the sale agreement deed, it is now made clear that the defendant will not be able to sell away the suit property to the plaintiff free of encumbrance. Even if the defendant executes such a sale deed in favour of the plaintiff, on sufficient enquiry, the plaintiff is able to now ascertain and affirm that the creditors will take sufficient steps through the Civil Court of Law to set aside such sale. Under such circumstances, when the defendant is not in a position to convey an unassailable title to the plaintiff, the defendant is not entitled to receive the balance amount and execute the sale deed. The said facts were informed by the plaintiff under Registered Notice dated 24.10.1988 for which the defendant sent a reply expressing his un-willingness to comply with the demand for refund of the advance amount.

5. On these pleadings, the plaintiff prayed for refund of the advance amount of Rs.20,000. Subsequently, the plaintiff filed I.A. No. 53 of 1991, i.e. after a period of three years from the date of filing of the suit seeking to amend the plaint to incorporate the prayer for directing the defendant to receive a sum of Rs.31,000 being the balance amount from the plaintiff and execute a registered sale deed conveying the schedule property to the defendant free of all encumbrances, at the cost of the plaintiff on or before the date to be fixed by the Court. To claim that relief, he wanted the plaint to be amended to include paragraph No.6-a. The said I.A. was allowed by the Trial Court and against that no revision has been filed by the defendant and hence the order had become final.

6. In the amended plaint, in paragraph 6-a, the plaintiff has stated as follows:

“The plaintiff had always been ready and willing to pay the balance amount of Rs.31,000 to the defendant and obtain the sale deed from him with delivery of possession of the suit properties. The plaintiff even now remains ready and willing to deposit the balance amount of Rs.31,000 into Court as and when so directed by this Honourable Court”.

The plaintiff has also stated that he learns that Rajendran, the elder brother of the defendant had already filed a