The central legal point established in the judgment is the requirement of readiness and willingness of the parties to perform the contract for specific performance, as well as the enforceability of the forfeiture clause and the court's power to order the return of the advance amount based on equity.

JUDGMENT :

G.K. ILANTHIRAIYAN, J.

Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated 30.12.2004, in A.S .No. 15 of 2004 on the file of the Principal Sub Court, Vridhachalam, confirming the decree and judgment dated 28.07.2003 in O.S. No. 303 of 2000 on the file of the II Additional District Munsif Court, Vridhachalam.

1. The Second Appeal is directed as against the judgment and decree dated 30.12.2004, in A.S. No. 15 of 2004 on the file of the Principal Sub Court, Vridhachalam, confirming the decree and judgment dated 28.07.2003 in O.S. No. 303 of 2000 on the file of the II Additional District Munsif Court, Vridhachalam.

2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court.

3. The case of the plaintiff in brief is as follows:-

3.1. The suit is filed for specific performance. The suit property belongs to the defendant. On 11.02.2000, the defendant executed sale agreement for sale in favour of the plaintiff and agreed to sell the suit property admeasuring three cents vacant house plot at the rate of Rs. 7,500/- per cent and for a total sale consideration of Rs. 22,500/-. On the same day, the defendant also received a sum of Rs. 5,000/- as advance. As per the agreement, within a period of three months from the date of sale agreement, the parties concerned have to perform their part of contract on receipt of the balance sale consideration of Rs. 17,500/-. There is a particular clause in the sale agreement that while measuring the suit property if the measurement of the house plot is increased or decreased, proportionately the sale amount has to be fixed and accordingly the sale deed has to be executed. Even after expiry of three months, repeatedly the plaintiff approached the defendant for execution of sale deed on payment of the balance sale consideration. The defendant dragged the issue and did not register any sale deed. Therefore on 23.03.2000, the plaintiff caused legal notice thereby called upon the defendant to be present on 27.03.2000 in the Sub Registrar Office, Virudhachalam and he is ready and willing to pay the balance sale consideration for the execution of the sale deed. After receipt of the same, the defendant sent reply notice dated 25.03.2000 with false allegations. Though the plaintiff was very much present on 27.03.2000 at about 10.00 a.m. to evening at the Office of the Sub Registrar, Virudhachalam, the defendant did not come to the Registrar Office and failed to register the sale deed in favour of the plaintiff. Hence, the suit for specific performance as against the defendant.

4. The defendant filed written statement and resisted the plaintiff’s case by stating that the suit property along with the other properties belong to the defendant and he laid out some property into house plots and sold to various persons. Likewise, the remaining property admeasuring four cents on 11.02.2000 executed one unregistered sale agreement in favour of the plaintiff and thereby agreed to sell the property. In the said agreement there is a specific clause that if the measurement is increased or decreased, accordingly the sale has to be done. After the sale agreement while measuring the said property, one cent of the property was excess and as such for that excess land also the defendant demanded sale consideration, whereas the plaintiff caused legal notice on 23.03.2000 and on receipt of the same, the defendant properly replied by the reply notice. The plaintiff at no point of time was ready and willing to perform her part of contract by payment of balance sale consideration of Rs. 17,500/- and Rs. 7,500/- for the additional one cent of property. The plaintiff did not agree for the same and refused to pay the excess amount and caused legal notice. Further the agreement for sale was entered between them on 11.02.2000 and before expiry of three months, i.e. on 23.03.2000 itself, the plaintiff caused legal notice. In fact, eve