The importance of establishing readiness and willingness from the inception of a contract in specific performance cases.

JUDGMENT :

Prayer: This Appeal Suit is filed under Section 96 of the Civil Procedure Code, against the judgment and decree dated 11.09.2018 passed in O.S.No. 50 of 2012 by the learned Additional District Judge/Fast Track Court, Palani.

1. Aggrieved over the decree and judgment of the trial Court granting decree for specific performance, the present second appeal is filed.

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

3. The brief facts, leading to the filing of this Appeal Suit, are as follows:

The defendants 1 and 2 are the owners of the suit properties. They offered to sell the property to the appellant for a sum of Rs.11,34,000/- and accordingly, an agreement dated 10.07.2009 came into existence executed by the power of attorney of the defendants 1 and 2. On the date of agreement, an advance of Rs.1,00,000/- was received. It is agreed between the parties to complete the sale within a period of four months. The plaintiff was always ready and willing to perform his part of the contract. However, the defendants evaded from executing the sale. Therefore, the plaintiff issued a legal notice on 17.12.2012 calling upon the defendants to come to Sub Registrar Office and execute the sale deed. As the defendants reluctant to receive the said notice and the same was returned as 'unserved'. Whereas the defendants took a stand denying the agreement. Hence, the suit.

(ii) Before the trial Court, on the side of the plaintiff, P.W.1 and P.W.2 were examined and Exs.A1 to A15 were marked and on the side of the defendants D.W.1 was examined and Ex.B1 was marked.

4. The first and second defendants denying the agreement of sale submitted that the fourth defendant is also one of the owners of the suit property. The first and second defendant gave power of attorney to the third defendant only to manage the property and the said power was cancelled on 14.05.2009. Therefore, the agreement executed by the power of attorney is not valid in the eye of law.

5. The third defendant also denying the agreement of sale contended that the power of attorney executed in his favour by the first and second defendant was cancelled on 14.05.2005 and the same was also intimated to him. He further submitted that he has not received a sum of Rs.1,00,000/- from the plaintiff. Only in order to claim interest over the suit property, documents have been created.

6. Based on the above pleadings, the trial Court has framed the following issues:

(1) Whether the sale agreement is true?

(2) Whether the sale agreement was in accordance with the powre of attorney?

(3) Whether the plaintiff was ready and willing to perform his part of contract?

(4) Whether the plaintiff is entitled for the relief of specific performance?

(5) To what other reliefs?

7. The trial Court has answered the issue relating to readiness and willingness, in favour of the plaintiff and granted the decree. As against the same the present appeal is filed.

8. The learned counsel for the appellant submitted that though the sale is agreed to be completed within a period of four months, the plaintiff was never ready and willing to perform his part of contract and he has not taken any steps even to verify the title deed. He kept silent for more than two years and suddenly in the year 2012, issued a legal notice. This itself clearly indicates that agreement is not related for sale of the propety and only it is a loan transaction between the power agent and the plaintiff. The trial Court has not considered these documents and merely on the basis of Ex.A2, legal notice dated 17.02.2012 and subsequent legal notice, inferred the readiness and willingness of the plaintiff. Hence, the finding of the trial Court is not based on proper appreciation of evidence. Hence, prayed for allowing this appeal.

9. The learned counsel appearing for the respondents would submit that the alleged cancellation of power deed has not been established. Ex.B1 appears to be a created document, w