JUDGMENT :

P.T. ASHA, J.

Prayer: Appeal Suit filed under Section 96 of the Code of Civil Procedure against the Judgment and Decree of the learned IV Additional District and Sessions Judge of Coimbatore dated 06.03.2020 in O.S. No. 604 of 2018.

1. This First Appeal is filed challenging the Judgment and Decree of the IV Additional District and Sessions Judge, Coimbatore in O.S. No. 604 of 2018. The plaintiff is the appellant before this Court. The suit in question is one for specific performance of an agreement of sale dated 04.11.2016.

Plaintiff’s case:

2. The plaintiff has filed the above suit seeking specific performance of an agreement of sale entered into between him and the defendant. The plaintiff would contend that he had entered into the sale agreement dated 04.11.2016 in respect of the suit scheduled property for a total sale consideration of Rs. 20,00,000/-. On the date of the agreement of sale a sum of Rs. 5,00,000/- was paid as an advance and the parties had decided to complete the transaction within a period of six months.

3. The plaintiff would submit that he had been ready and willing from the date of the agreement. He would further contend that as per terms of the contract the defendant had to measure and demarcate the boundaries of the suit property and hand over a rough sketch plan in respect of the same. Since the defendant was unable to do so he had requested that the sale agreement be extended for a further period of six months. Therefore, parties have entered into an extension deed dated 02.05.2017, as per the terms of which the agreement had to be concluded within six months i.e. on or before 02.11.2017.

4. The plaintiff would contend that even after such extension the defendant was not willing to go forward with the agreement of sale which constrained the plaintiff to issue a legal notice dated 26.06.2018. The defendant who received the said notice had issued a reply dated 07.07.2018 making false allegations. Therefore, the plaintiff has come forward with the suit for specific performance failing which for an alternate relief of refund of advance amount.

5. The defendant had remained ex-pare.

6. The Trial Court without framing issues had however framed a points for consideration as to whether the plaintiff was entitled to the relief as asked for?

7. The plaintiff had examined himself as PW-1 and one Muthusamy as PW-2. The plaintiff had marked Ex.A.1 to Ex.A.9 through PW-1 and Ex.A.10 through the 2nd witness, PW-2, who was the attestator to the sale agreement.

8. The learned Trial Judge on considering the evidence both oral and documentary dismissed the suit on the ground that the plaintiff who had proved his readiness had however not proved his willingness and therefore was not entitled to the discretionary relief for specific performance. The learned Judge ordered the alternate relief. Challenging this Judgment and Decree the plaintiff is before this Court.

9. After hearing the submissions of the learned counsel, following points for consideration arise:

(i) Whether the time was essence of the contract?

(ii) Whether the plaintiff has proved his readiness and willingness throughout?

(iii) Whether the Judgment of the Trial Court requires reconsideration?

10. Heard the learned counsel for the appellant/plaintiff and perused the records of the Trial Court.

11. The case of the plaintiff is that he and the defendant had entered into an agreement of sale dated 04.11.2016 marked as Ex.A.1. The total sale consideration fixed was a sum of Rs. 20,00,000/- and the time for performance was fixed at six months and an advance of Rs. 5,00,000/- has been paid on the date of the agreement of sale. Though the plaintiff was ready and willing with his part of obligation, the defendant had not complied with his obligation as per terms of Ex.A.1 and therefore both the parties had entered into an extension deed dated 02.05.2017 marked as Ex.A.2. As per terms of Ex.A.2, the transaction had to be concluded on or before 02.11.2017.

12. Even after