Continuous proof of readiness and willingness is essential for specific performance; failure to prove financial capacity and timely action disallows enforcement.

JUDGMENT :

(PER: HON'BLE MS. JUSTICE TARA VITASTA GANJU)

1. The present appeal has been filed by the 1^st, 4^th and 7^th defendants/appellants seeking to challenge the Judgment and Decree dated 28.09.2013 in O.S.No.25638/2009 passed by the XXVII Additional City Civil Judge, Mayohall Unit, Bangalore (“Impugned Judgment”). By the Impugned Judgment, the suit filed by the respondent No.1/plaintiff has been partly decreed, the relief of specific performance sought by the respondent No.1/plaintiff was dismissed and defendant Nos.1 to 7 were directed to refund Rs.20 Lakhs with interest at the rate of 6% p.a. from the date of agreement till realization, to the respondent No.1/plaintiff. 2. Briefly the facts are, that a suit for specific performance of an agreement of sale dated 08.08.2004 was filed by the respondent No.1/plaintiff for directions to the appellants/defendants shall execute a sale deed in favour of the respondent No.1/plaintiff upon receipt of the balance sale consideration amount.

2.1. It was the case of the respondent No.1/plaintiff that defendant Nos.1 to 7 are respectively the wife and children of late Sri.Lakshminarayana. The said Sri.Lakshminaryana had executed an agreement of sale on 08.08.2004 to sell the suit schedule Item No.1 being residential property bearing No.50, Binnamangala, Manavarthe Kaval, Old Madras Road, Bangalore and Item No.2 being residential property bearing No.51, Binnamangala Manavarthe Kaval, Old Madras Road, Bangalore [hereinafter collectively referred to as the “suit properties”]. The agreement was executed for a sum of Rs.50 Lakhs of which part consideration amount of Rs.20 Lakhs was the advance payment. The balance sale consideration amount was to be paid by the respondent No.1/plaintiff at the time of registration of the sale deed. The parties agreed to complete the sale transaction within 3 years from the date of execution of the agreement of sale.

2.2. During the lifetime of Sri.Lakshminarayana, the respondent No.1/plaintiff expressed his readiness and willingness to perform his part of the contract by offering to pay the balance sale consideration amount, but Sri.Lakshminarayana postponed the same on one pretext or the other. The said Sri.Lakshminarayana passed away on 24.06.2006 however, without executing the sale deed.

2.3. After the death of Sri.Lakshminarayana, the respondent No.1/plaintiff issued a legal notice to the legal representatives of Sri.Lakshminarayana to come and execute the sale deed in terms of the agreement of sale. Since the agreement was not executed, the respondent No.1/plaintiff was constrained to file a suit for specific performance.

2.4. The defendants Nos.1 to 4 and 7 on appearance filed the written statement denying all allegations. They alleged that the respondent No.1/plaintiff, who is a money lender, is in the habit of cheating the general public. The respondent No.1/plaintiff, with a malafide intention, manipulated and fraudulently managed to get the signature of ignorant and illiterate Sri.Lakshminarayana on the alleged agreement of sale in order to get the valuable properties or money from the appellants/defendants.

2.5. Based on the pleadings, the following issues were framed:

“1) Whether the plaintiff proves that late Lakshminarayana agreed to sell the suit properties for Rs.50 lakhs and received Rs 20 lakhs as part consideration amount, and executed agreement of sale on 8.8.2004?

2. Whether the plaintiff was ever ready and willing to perform his part of contract?

3. Whether the plaintiff proves that after Lakshminarayana died on 24.6.2006, the defendant Nos. 1 to 7 being his heirs, are liable to execute the sale deed after receiving the remaining sale consideration amount?

4. Whether the defendants prove that the plaintiff clandestin