The central legal point established in the judgment is that in a suit for specific performance, the plaintiff must prove their readiness and willingness to perform the contract within the specified time, failing which the court may grant a decree for refund instead of specific performance.

1. This Second Appeal is filed against the judgment and decree dated 29.06.2010 passed in A.S.No.13 of 2009 on the file of the Sub Court, Attur confirming the judgment and decree dated 31.07.2009 passed in O.S.No.11 of 2006 on the file of District Munsif court, Attur.

2. The defendants 2 & 3 who lost in both the courts below filed the present Second Appeal. The respondent/plaintiff filed O.S.No.11 of 2006 against one Pottiammal, the first defendant and appellants herein as defendants 2 & 3 for specific performance of agreement of sale dated 30.12.2004 registered as Doc.No.4037 of 2004 executed by Pottiammal and appellants.

3. According to the respondent, the deceased Pottiammal and the appellants are the absolute owners of the suit property and they agreed to sell the suit property for a total sale consideration of Rs.1,00,000/- and received a sum of Rs.70,000/- as advance. The balance sale consideration of Rs.30,000/- was agreed to be paid within eleven months from 30.12.2004 by the respondent to Pottiammal and appellants and get the sale deed executed in his favour. Even though time is not the essence of the contract, the respondent was ready and willing to perform his part of contract by paying the balance sale consideration to the appellants and the deceased Pottiammal, but the appellants and the first defendant were evading to execute the sale as agreed. They were arranging to sell the suit properties to third parties. Hence, the respondent issued notice dated 05.12.2005 through his Advocate. The first defendant Pottiammal received the said notice. Notice sent to the appellants were returned un-served. They sent reply containing false averments. In the said circumstances, the respondent filed the suit for the reliefs stated above. The respondent in alternative, prayed for refund of advance amount of Rs.70,000/- paid to the first defendant Pottiammal and appellants with interest @ 10% from the date of suit without prejudice to the main relief of specific performance of agreement, as per Specific Relief Act.

4. The first appellant filed written statement and the same was adopted by second appellant and first defendant Pottiammal. They denied that they agreed to sell the property to the respondent for a sum of Rs.1,00,000/- and received a sum of Rs.70,000/- as advance. They also denied that they executed agreement of sale on 30.12.2004. According to the appellants and first defendant, the respondent is a money lendor. The first defendant and appellants, for their urgent family expenses, borrowed a sum of Rs.35,000/- from the respondent agreeing to repay the same with interest @ Rs.1400/- per month and paid interest for 12 months totalling to Rs.18,800/-. At the request of the respondent, they executed an agreement of sale for double the amount borrowed by them. The suit property is measuring 1 acre 63 cents and value is more than Rs.3,50,000/- and that they are willing to repay the amount of Rs.35,000/- borrowed from the respondent. The respondent never called upon the appellants and deceased Pottiammal to execute the sale deed. The agreement of sale was executed only as a security for the amount borrowed from the respondent.

5. Based on the pleadings, the learned Trial Judge framed necessary issues. The respondent examined himself as PW1 and one Venkatesan was examined as PW2 and marked seven documents as Exs.A1 to A7. The first appellant examined himself as DW1 and one Rameswari was examined as DW2. The appellants did not mark any document.

6. The learned Trial Judge, considering the pleadings, oral and documentary evidence, held that the appellants and the first defendant executed agreement of sale and they failed to prove that the said document is only a security document for the loan of Rs.35,000/- borrowed by them. The learned Trial Judge also held that the appellants and the first defendant have not let in any evidence to prove that the agreement of sale is in fact only a security document for the loan and decree