The plaintiff seeking specific performance must demonstrate readiness and willingness to perform the contract, and the court must consider the hardship on the defendants. Additionally, agreements involving minors' shares without court permission may not be given importance.

JUDGMENT :

(Prayer: Appeal is filed under Section 96 of the Code of Civil Procedure, against the judgment and decree passed in O.S.No94 of 2007, by the learned Additional District Judge, Fast Track Court, Dindigul, dated 3010.2009.)

1. Aggrieved over the judgment and decree of the trial Court in the suit filed for specific performance, the present appeal came to be filed.

2. For the sake of convenience, the parties are referred to herein, as per their ranking before the Trial Court.

3. The brief facts leading to the filing of the suit are as follows:

(i) The suit property originally belonged to one K.S.Raja, son of the first defendant and the second defendant is the wife of late K.S.Raja and the third and fourth defendants are minor children of K.S.Raja. In the year 2003, the said K.S.Raja has mortgaged the properties to one M.R.Lakhsmi for a sum of Rs.3,00,000/- (Rupees Three Lakhs only). Thereafter, he died. The defendant Nos.1 and 2 in order to clear the mortgage debt, decided to sell the suit property and according to the same, they entered into the agreement with the plaintiff to sell the suit property for a total sale consideration of a sum of Rs.16,00,000/- (Rupees Sixteen Lakhs only).

(ii). Accordingly, on 04.06.2007, a suit agreement came to be executed and the plaintiff has paid an advance amount of a sum of Rs.11,000/- (Rupees Eleven Thousand only) by cash and the remaining amount of Rs.5,89,000/- (Rupees Five Lakhs Eighty Nine Thousand only) by way of Cheque, drawn on the Pandiyan Grama Bank, Batlagundu, in the name of the second defendant. However, on the same date, the plaintiff came to know that there are other encumbrances in the said suit property running to several Lakhs of Rupees, which was not disclosed by the defendant Nos.1 and 2 at the time of agreement.

(iii). Suspecting the foul play and fraud, the plaintiff immediately sent a notice on 05.06.2007 to the Bank requesting to stop payment on the cheque and also informed the defendant Nos.1 and 2 about the letter for stop payment. A notice was also sent to the defendant Nos.1 and 2 and the defendants also informed about the same on 20.06.2007. Thereafter, the defendant Nos.1 and 2 agreed to sell the property by disclosing all the other existing encumbrances. After that, the plaintiff revoked the 'stop payment' by a letter to the Bank dated 17.08.2007 and also sent a notice to the defendants on 17.08.2007, intimating them to encash the cheque with them and also expressed his readiness and willingness. The above said notice was received by the defendant Nos.1 and 2 on 20.08.2007. When the defendants evaded to execute the sale, the plaintiff issued a Newspaper publication on 31.08.2007. Thereafter, the defendants sent a notice to the plaintiff by enclosing a Demand Draft for a sum of Rs.11,000/- by falsely alleging as if the plaintiff wanted to cancel the agreement. The said notice was received on 03.09.2007 and the plaintiff sent back a reply on 04.09.2007 along with the Demand Draft for a sum of Rs.11,000/-. After the said notice dated, 04.09.2007 the defendant Nos.1 and 2 met the plaintiff and expressed their readiness and willingness to complete the transaction. However, the defendants dragged the proceedings. Hence, the suit filed for specific performance.

4. In a written statement, it is the contention of the defendants that, on the date of agreement, the defendants requested the plaintiff to pay a sum of Rs.6,00,000/- as an advance amount, whereas, the plaintiff has paid only a sum of Rs.11,000/- and issued a cheque to the tune of Rs.5,89,000/-. When the cheque was presented on 04.06.2007 in the Bank, it was dishonoured with an endorsement as the plaintiff has “stopped payment”. This shows that the plaintiff had willfully violated the essential basic terms of contract by voluntarily withholding the advance amount agreed by both of them due to the defendants. A notice, dated 20.06.2007 was also issued in this regard, by the plaintiff.

5. Thereafter, the plainti