The court emphasized the necessity of sound reasoning in dismissing claims for specific performance and the obligation to grant alternative relief when justified.

JUDGMENT

A suit for specific performance in the alternative for the return of the advance amount was dismissed by the trial court, against which the plaintiff came up in appeal.

2. The questions came up for consideration in this appeal are whether the trial court is justified in dismissing the entire suit overlooking the alternative relief sought for return of the advance amount and in not granting relief of specific performance.

3. Ext.A1 is the agreement by which it was agreed to convey the property belonging to the first defendant at the rate of Rs.1 lakh per cent and an initial amount of Rs.2 lakhs was paid in advance out of the sale consideration, for which there is no dispute from the defendants. The defendants, inter alia contended that they had entered into Ext.B5 agreement with respect to some other property with the mother of plaintiff, by which the sale consideration of Rs.2 lakhs was adjusted towards the advance amount under Ext.A1 document. But it was not disclosed anywhere in Ext.B5 agreement, or in the sale deed. In fact, Ext.B5 agreement is totally silent about the case now advanced by the defendants regarding the alleged adjustment. In the said circumstances, it is not at all permissible to substitute the oral version, the interested testimony in the place of proof. Necessarily, the defence set up by the defendants will fail and cannot be accepted. The specific performance of the suit was denied by the trial court, mainly on the reason that the property was not measured out, cannot be sustained. A strange reasoning was made by the trial court that there is no such clause incorporated under Ext.A1 for measuring out the property. This is the way in which the matter was considered and appreciated by the trial court. Even going by the agreement, it was agreed to pay Rs.1 lakh per cent. It would show that without measuring the property, the sale consideration that is payable under the agreement cannot be ascertained. It should be at the rate of Rs.1 lakh per cent. So the rejection of relief of specific performance on the ground that there is no provision incorporated to measure out the property in the agreement cannot be sustained.

4. It is quite interesting that the plaintiff came up with a suit for specific performance, though he was not even having the capacity or ability to collect the balance sale consideration payable under the agreement during the period of contract and it is well evident from the fact that even for the payment of advance amount which comes to Rs.2,00,000/- he had to borrow the said amount from his mother by pledging her FD receipts in a bank. The balance sale consideration would come to more or less Rupees Ten lakhs, for which also there is no evidence worth the name. The case advanced by him that he was having an amount of Rs.10,00,000/- in cash cannot be sustained simply on the reason that it was not kept in any of the bank account and there is no document to show the possession of such a huge amount in cash. It is also not disclosed or whispered from where he had collected such a huge amount of rupees Ten lakhs. All these vital factors were put under darkness. This has to be read along with the fact that he had to borrow an amount of Rupees Two lakhs from his mother by pledging her fixed deposit receipt. Necessarily, unless there is cogent evidence to show either the capacity or ability to collect such a huge amount during the subsistence of the contract, it cannot be said that the plaintiff was ready and willing to perform his part of contract. Necessarily, no decree of specific performance can be granted in favour of the plaintiff.

5. The alternative relief of return of advance amount which comes to Rupees Two lakhs was not granted by the trial court, for which no satisfactory reason, much less any reason was assigned by the trial court. Hence, the decree and judgment of the trial court are liable to be set aside to that extent by granting a decree of return of advance amount of Rupees T