The discretionary nature of granting specific performance and the importance of the plaintiff's willingness to purchase encumbered property were central legal principles established in the judgment.

JUDGMENT :- These appeals, preferred under Section 100 of the Code of Civil Procedure, 1908, are directed against the judgment and decree dated 21-1-2004, passed in Civil Appeal No. 167 of 2001 by the then learned Additional District Judge/Fast Track Court II, Dehradun, whereby the said appeal is allowed and Original Suit No. 747 of 1995 is decreed for specific performance of contract under agreement of sale.

2. I heard learned counsel for the parties and perused the record.

3. Brief facts of the case are that plaintiff instituted the suit No. 747 of 1995 with the pleadings that defendant Ram Kumar executed an agreement dated 5-6-1995 to sell his land to the plaintiff Virender Singh for Rs. 42,000/-, and got the same registered. Out of the sale consideration of Rs. 42,000/-, it is alleged in the plaint that Rs. 10,500/- was received by defendant Ram Kumar at the time of instituting the agreement, and Rs. 20,500/-was paid prior to the execution of the agreement. The rest of the amount i.e. Rs. 11,000/- was to be paid at the time of execution of sale deed. It was pleaded that the sale deed was to be executed by 15-8-1995. When the defendant Ram Kumar failed to execute sale deed in favour of the plaintiff Virender Singh, the latter sent notice dated 10-7-1995 asking the defendant Ram Kumar to be present in the office of the Sub Registrar on 10-7-1995, at 10.30 A.M. to execute the sale deed, as agreed between them. On the said date defendant did not oblige the plaintiff. Instead, he sold the property to defendant Ganga Prasad @ Jai Prasad. Defendant No. 2 Sumer Chand was impleaded in the suit as per direction of the trial Court.

4. Defendants contested the suit and filed their written statements. Defendant Ram Kumar took the plea that in fact agreement was executed with the condition that the plaintiff Virender Singh shall pay loan of the defendant to the Land Development Bank, which he failed to do. Defendant Ram Kumar denied having received sum of Rs. 20,500/- from the plaintiff. He further pleaded that the suit is barred by provisions contained in Sections 17, 20, 38 and 41 of the Specific Relief Act, 1963. Defendant No. 2 Sumer Chand filed separate written statement, in which he took the plea that the land measuring .02 acres in Khasra No. 1368 bears his share also, as such, defendant Ram Kumar had no power to transfer his share to the plaintiff. Defendant No. 3, Ganga Prasad @ Jai Prasad filed his separate written statement defending the sale deed executed in his favour by Somi Devi, power of attorney holder of defendant Ram Kumar.

5. The trial Court framed as many as ten issues. After recording the evidence and hearing the parties, the trial Court found that the defendant Ram Kumar did execute agreement of sale on 5-6-1995 in favour of the plaintiff Virender Singh to sell his land for consideration to the tune of Rs. 42,000/-. It further found that Rs. 10,500/-were received by the defendant Ram Kumar at the time of executing the agreement and Rs. 20,500/- before executing it. As to the readiness and willingness on the part of the plaintiff to perform his part of contract it was found that he was ready and willing to perform his part of contract. On the point of limitation, the issue was decided in negative i.e. in favour of the plaintiff as the defendants did not press it. Similarly, issue on the point whether the suit is barred by various provisions of the Specific Relief Act, that too was not pressed by the defendant Ram Kumar and said issue was also decided in favour of the plaintiff. The trial Court also found that suit is not bad for non-joinder of the Land Development Bank as no relief has been claimed against it. The trial Court further found that the agreement of sale in question is not void or ineffective on the ground that the property in question was already mortgaged by the defendant Ram Kumar to the Bank, from which he had taken the loan. As to the objection of defendant Sumar Chand, it was found that said defendant

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