A purchaser of immovable property must demonstrate financial capacity and a bona fide intent to perform, rather than physical possession of cash. Unless explicitly stipulated, time is not automatically the essence of such contracts; appellate courts must not interfere with well-reasoned factual findings regarding readiness and willingness.

JUDGMENT :

R. POORNIMA, J.

This second appeal is filed against the judgment and decree dated 21.11.2002 rendered in A.S.No.312 of 2001 on the file of the Principal District Judge, Tirunelveli, which was preferred against the judgment and decree, dated 12.09.2001 made in OS No.108 of 1997 on the file of the Additional Sub Judge, Tenkasi.

2. The appellants/plaintiffs filed the original suit O.S.No.108 of 1997 against the deceased Ganapathi Thevar as sole defendant for the relief of specific performance.

3. The case of the plaintiffs is that the suit property originally belonged to the deceased Ganapathy Thevar, the defendant (since died, leaving behind respondents 2 to 8 herein as his legal heirs).

4. The plaintiffs and the deceased Ganapathy Thevar entered into a sale agreement dated 23.10.1996 for the purchase of the suit schedule property for a total sale consideration of Rs.2,10,000/-. An advance amount of Rs.10,000/- was paid on the date of the agreement. It was agreed that the sale deed shall be executed on or before 30.06.1997. Apart from the initial advance, the plaintiffs paid further sums as follows:

* Rs.20,000/- on 08.11.1996

* Rs.10,000/- on 12.04.1997

* Rs.10,000/- on 11.05.1997

* Rs.10,000/- on 14.06.1997

Thus, a total sum of Rs.60,000/- was paid towards the sale consideration, all of which were duly acknowledged by the defendant. The remaining balance sale consideration payable is Rs.1,50,000/-.

5. Even prior to the sale agreement, the defendant had executed a mortgage deed dated 19.08.1993 in respect of the suit schedule property in favour of the plaintiffs for a sum of Rs.10,000/-. The said mortgage amount remains unpaid, and the mortgage period has also expired. The plaintiffs have always been ready and willing to perform their part of the contract. They issued a legal notice ON 25.06.1999 calling upon the defendant to receive the balance sale consideration and execute the sale deed. However, the defendant failed and neglected to comply with the same. Hence, the plaintiffs are entitled to seek specific performance of the agreement of sale. The plaintiffs therefore, prayed to direct the defendant to receive the balance sale consideration and execute the sale deed in favour of the plaintiffs. In the event of the defendant’s failure, the plaintiffs pray that the Hon’ble Court may execute the sale deed on behalf of the Plaintiffs.

6. In the written statement, the defendant admits the execution of the sale agreement dated 23.10.1996 and the receipt of part of the sale consideration. However, it is contended that the plaintiffs failed to pay the balance sale consideration within the stipulated time, namely on or before 30.06.1997.The plaintiffs were not ready and willing to perform their part of the contract within the agreed period. Due to their failure, the sale could not be completed. Therefore, the plaintiffs are not entitled to the equitable relief of specific performance. The suit is liable to be dismissed.

7. The trial Court, after perusing the plaint and written statement filed by the parties, has framed the following issues:-

1.Whether the plaintiffs are entitled to the relief as prayed for?

2. To what other reliefs?

8. On the side of the plaintiffs, three witnesses were examined as PW1 to PW3. On the side of the defendant, one witness was examined as DW1 and no document was marked.

9. After hearing both sides, the Trial Court decreed the suit in favour of the plaintiffs directed the defendant to execute the sale deed upon receipt of the balance sale consideration, failing which, the sale deed would to be executed by the Court itself.

10. Aggrieved by the same,