The plaintiff must prove continuous readiness and willingness to perform a contract for specific performance; mere possession or improvements do not suffice.

JUDGMENT :

Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure, to set aside the judgment and decree dated 11.06.2015 passed by the learned Principal District Judge, Chengalpattu in A.S.No.2/2012 reversing the judgment and decree the suit in O.S.No.42 of 2006 on the file of the Additional Sub-Judge, Chengalpattu.

This Second Appeal has been filed to set aside the judgment and decree dated 11.06.2015 passed by the learned Principal District Judge, Chengalpattu in A.S.No.2/2012 reversing the judgment and decree the suit in O.S.No.42 of 2006 on the file of the Additional Sub-Judge, Chengalpattu.

2. Heard Mr.ARL.Sundaresan, learned Senior Counsel for the appellant and Mr.A.Saravanan, learned counsel for the respondent and perused the materials available on record.

3. The Appellant is the defendant. The plaintiff has filed a suit in O.S.No.42 of 2006 for specific performance of agreement of sale dated 07.12.2003. The Trial Court has refused to grant the relief of specific performance and directed the defendant to pay a sum of Rs.3,40,000/-within 6 months from the date of the decree. Aggrieved over the same, the plaintiff has preferred a First Appeal in A.S.No.02 of 2012 and the same was allowed. Challenging the same, the defendant has filed the present Second Appeal.

4. The averments made in the plaint are as follows:

On 07.12.2003, the defendant has entered into a sale agreement with the plaintiff to sell the suit property for Rs.2,65,000/-. The said agreement was reduced into writing. On the date of sale agreement, the plaintiff has paid a sum of Rs.1,00,000/- towards advance by way of cheque. The defendant has encashed the said cheque and received the said amount. Further, the defendant has agreed to receive the balance sale consideration at the time of registration. In pursuant to the said sale agreement, possession of the suit property was handed over to the plaintiff. Thereafter, the plaintiff has put up a compound wall and dug a bore well and formed a garden in the suit property.

4.1. At the time of entering into the sale agreement, the defendant informed the plaintiff that he has a proposal to go to USA and assured that he will execute the sale deed as soon as he returned from USA. Hence, it was not considered that the time was an essence of the contract. Believing his words, the plaintiff was waiting for all those years and he was always ready and willing to perform his contract. On several occasions when the plaintiff tried to contact the defendant through phone only his son responded and informed that his father was in USA and he had not yet returned to India. Hence, on 21.01.2006, the plaintiff issued a lawyer's notice calling upon the defendant to receive the balance sale consideration and execute a sale deed. He also informed him that he will wait in the office of the Sub-Registrar on 06.02.2006. Though the defendant has received the said notice, he neither sent any reply nor came forward to perform his part of contract. Hence the suit.

5. The averments made in the written statement are as follows:

The suit is not maintainable either in law or on facts. The plaintiff expressed his desire to the defendant that he would purchase the suit land for Rs.2,65,000/- and agreed to complete the transaction within 10 or 15 days. The defendant was in urgent need of funds for his trip to USA to see his daughter. Believing the representation of the plaintiff that he would complete the transaction within 15 days, the defendant received a cheque for Rs.1,00,000/- and that was the reason for not executing a detailed sale agreement and the defendant drafted only a short letter in favour of the plaintiff for acknowledgment of Rs.1,00,000/-. The defendant was waiting for the plaintiff to come up with the balance sale consideration and complete the sale. But the plaintiff did not turn up in spite of the defendant's best efforts and reminders sent to him about his undertaking.

5.1. The property being at the outskirts of t