IMPORTANT POINT
Agreement to Sell – Continuous willingness on part of plaintiff is condition precedent to grant relief of specific performance.

JUDGMENT

This matter is listed for admission and heard the learned counsel for the appellant and the learned counsel for the respondents.

2. This second appeal is filed against the concurrent finding in rejecting prayer of specific performance.

3. The factual matrix of case of plaintiff before the Trial Court that there was an agreement of sale and the same came to be executed by father of defendant on 05.02.2003 and sale consideration of Rs.8,65,000/- and sale consideration of Rs.4,00,000/- was paid. Subsequently an amount of Rs.1,00,000/- was also paid on 21.07.2004. It is also the case that only father has acquired the property vide sale deed dated 11.10.1990 and the same is absolute property of father of the defendant and the said Gangarangaiah died leaving behind defendant who succeed estate including the suit property in question and hence the defendants are bound to execute the sale deed after receiving balance sale consideration and inspite of that they did not come forward to execute the sale deed and hence issued notice on 17.06.2008 and untenable reply was given by the defendants. Hence, the plaintiff filed the suit for relief of specific performance.

4. In pursuance of the suit summons, the defendants have filed written statement denying the very execution of sale agreement. Hence, the Trial Court having considered the pleadings of the parties framed the issues as whether there was a sale agreement and whether the plaintiff was always ready and wiling to perform his part of contract and whether the plaintiff is entitled for the relief of specific performance. The Trial Court considered the material available on record, answered issue No.1 as affirmative that there was a sale agreement between the plaintiff and intersay father of defendant. However, answered the issue No.2 as negative in coming to the conclusion that sale agreement was came into existence in the year 2003 and also considered the additional payment of Rs.1,00,000/- on 21.07.2004 and in the meanwhile the executant of agreement passed away in the year 2005 and notice was issued in the year 2008. The remaining sale consideration of Rs.3,65,000/- and no effort was made between 2003 to 2008 to execute sale deed. Hence, comes to the conclusion that Section 16(c) of Specific Relief Act has not been complied by the plaintiff and hence the Trial Court declined to grant the relief of specific performance and ordered to refund the amount of Rs.5,00,000/- with 6% interest.

5. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed in R.A.No.135/2018 before the First Appellate Court. The First Appellate Court having considered the grounds which have been urged in the appeal memo and also considering both oral and documentary evidence available on record, formulated the point for consideration as whether the Trial Court is justified in holding that the plaintiff has failed to prove his readiness and willingness to perform his part of contract and whether judgment and decree of the Trial Court requires interference and on re-assessing both oral and documentary evidence, the First Appellate Court taking into note of Ex.P2-sale agreement dated 05.02.2003 and also considering additional payment of Rs.1,00,000/- in the year 2004 and the First Appellate Court comes to the conclusion that in between 05.02.2003 to 21.07.2004, nothing is placed on record to establish that plaintiff was made his effort to execute the sale deed and not complied with provisions of Section 16(c) of Specific Relief Act and not made any effort to pay the balance amount and he kept quite almost for a period of almost 5 years from the date of agreement and hence he did not comply with Section 16(c) and affirmed the judgment of the Trial Court in coming to the conclusion that he has not produced any document to show that remaining consideration is already arranged by him for performance of contract and nothing is placed before the Trial Court to pay the balance amount of R