The plaintiff must continuously prove readiness and willingness to perform a contract to be entitled to specific performance, as per Section 16(c) of the Specific Relief Act.

JUDGMENT :

Challenging the decree and judgment of the Trial Court decreeing the suit for specific performance, the present appeal came to be filed by the second defendant.

2. Brief facts leading to filing of the case is as follows:

2.a. The defendants have executed an agreement of sale of suit property on 23.11.2006 for a total sale consideration of Rs.6,00,000/- and received a sum of Rs.2 lakhs as advance and agreed to complete the sale on or before 23.03.2007. Therefore, the plaintiff has to pay remaining sale consideration of Rs.4 lakhs, however, the defendants have not come forward to execute the sale deed. Hence, the plaintiff issued a legal notice on 08.03.2007 to the deceased first defendant, in the meanwhile, the first defendant tried to alienate the suit property, hence, plaintiff had filed a suit in O.S.No.123 of 2007 for permanent injunction not to alienate the suit property. Thereafter, the present suit has been filed.

2.b. In the written statement, it is the contention of the first defendant that the agreement was not intended for sale of property and alleged legal notice has not been sent to her. It is the stand of the first defendant that as the remaining balance sale consideration is not paid to her, the plaintiff is not entitled to relief of specific performance. According to the second defendant the legal notice is issued for the name sake without showing readiness and willingness in performing the part of the contract by the plaintiff. Hence, opposed the suit.

2.c. Based on the above pleadings, the Trial Court has framed the following points:

i) Whether the plaintiff has performed his part of the Contract?

ii) Whether the plaintiff has been ready and willing to perform his part of the contract?

iii) Whether the plaintiff is entitled to the relief of specific performance of the contract?

iv) To what reliefs if any the plaintiff's entitled to?

2.d. On the side of plaintiff, PW1 to PW3 were examined and marked Exs.A1 to A5. On the side of the defendants, DW1 and DW2 were examined and marked Exs.B1 to B7.

3. Based on the oral and documentary evidences, the Trial Court decreed the suit for specific performance. Challenging the said decree and judgment, the second defendant has come up with this appeal.

4. The learned counsel for the appellant mainly would submit that the Trial Court has not even gone into the issue of readiness and willingness. When the parties agreed to complete the sale within certain period, the plaintiff has to show his readiness and willingness, whereas, the plaintiff only for the name sake had issued a legal notice without exhibiting the readiness and willingness in performing his part of contract. Further, all along, the first defendant used to sign only in Tamil language, however, the acknowledgment card has been received by the first defendant signed in English, this itself creates serious doubt. The plaintiff has already filed a suit for bare injunction in O.S.No.123 of 2007, wherein, the plaintiff has specifically pleaded that he has no wherewithal to seek specific performance. Further, the plaintiff has filed an application under Order II Rule 2 of CPC, wherein, it is averred that due to lack of financial condition, he is unable to file a suit for specific performance at present. Hence, the present suit has been filed at a later stage. The very admission in the earlier pleadings would indicate that plaintiff was not ready to complete the sale. This aspect has never discussed by the Trial Court. Hence, it is the contention that readiness and willingness is not established. Hence, prayed for allowing of this appeal.

5. Despite several opportunities given to the respondents and name being printed in the cause list, none appeared for the respondents. Hence, this Court has proceeded to dispose of the appeal on merits.

6. Based on the above pleadings and submissions, now the issue arising for consideration in this appeal is as follows:

i) Whether the plaintiff has proved the readiness and willingness from