Dr. Shekher Dhawan, J.:-

1. The present Regular Second Appeal against judgment and decree dated 22.03.2013 whereby appeal against judgment and decree dated 15.12.2012 passed by Civil Judge (Sr. Divn.), Gurgaon was modified.

2. For convenience sake, hereinafter, reference to the parties is being made as per their status in the Civil Suit.

3. The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. In brief, the facts relevant for disposal of this second appeal are to the effect that the plaintiff had filed suit for specific performance dated 18.08.2009 for a total sale consideration of`4,25,000/-. The earnest money of `2,60,000/- was received on the same day and possession was handed over. The sale deed was to be executed on or before 20.09.2009. Subsequently, payments of `15,000/- and `30,000/- were made as additional earnest money and date for execution and registration of sale deed was extended upto 20.10.2009. As per plaintiff, she was always ready and willing to perform her part of agreement but the defendant failed to perform said agreement and, as such, suit before the Court of first instance.

4. Defendant appeared but failed to file the written statement despite availing sufficient opportunities and defence of defendant was struck off vide order dated 14.01.2011.

5. The Court of first instance on the basis of oral as well as documentary evidence adduced before the same, returned the findings thereby passing an order of recovery of sum of `3,05,000/- along with interest @ 12% per annum from the date of agreement till realisation. The plaintiff preferred appeal against the said judgment and the First Appellate Court modified the findings thereby directing the defendant to execute the sale deed in respect of the house in dispute in favour of the plaintiff as per agreement. The defendant is in appeal against the said judgment and decree.

6. Mr. Sanjay Verma, learned counsel for the appellant took the plea that the subject matter of agreement of sale was small house measuring 25 square yards only and the defendant is residing in the same. He is a poor person. The agreement was allegedly executed on 18.08.2009 and the sale deed was to be executed upto 20.09.2009. Thereafter, with mutual consent of the parties, date was extended upto 20.10.2009. However, the plaintiff himself was not willing and ready to perform her part of agreement on 20.10.2009. She had not filed any application before Registration Authority on 20.10.2009 to get recorded her presence. The only evidence available on file is by way of affidavit Ex.P-2 and the same was attested by the Executive Magistrate on 28.10.2009. As such, the plaintiff was not willing and ready to perform her part of agreement on 20.10.2009 and the plaintiff is not entitled for specific performance of the said agreement. The findings recorded by the Courts below be reversed and the suit of the plaintiff be dismissed.

7. Learned counsel for the appellant also took the plea that remedy for specific performance is an equitable remedy and the same is in the discretion of Court, which discretion requires to be exercised according to settled principles of law. As per Section 20, Court is not bound to grant relief just because there was valid agreement of sale rather as per Section 16(c) of Specific Relief Act, 1963, plaintiff himself pleaded and proved that he had performed or has always been ready and willing to perform the essential terms of contract which are to be performed by him, other than those terms the performances of which has been prevented or waived by defendant. Continuous readiness and willingness is a condition precedent to grant the relief of specific performance. Learned counsel for the appellant has placed reliance upon judgment of Hon'ble Supreme Court in case of Syed Dastagir Vs. T.R. Gopalakrishna Shetty, 1999(3) RCR (Civil) 643 wherein such a law was laid down. On the same point, reliance was placed upon judgment

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