A plaintiff seeking specific performance must demonstrate continuous readiness and willingness to perform their part of the contract, along with clean hands.

JUDGMENT

C.Jayachandran, J.

1. Whether 'readiness' implies 'willingness' in the context of Section 16 of the Specific Relief Act, 1963 ? If there is overall lack of bonafides in the conduct of the plaintiff/vendee, as discernible from the evidence on record, whether the discretion under Section 20 can be exercised in favour of the plaintiff, even if he was found to have been possessed of the necessary funds for payment of balance consideration? These are the questions which arise for consideration in the instant appeal.

2. The decree impugned in this appeal is the one in O.S.No.132/2011 of the Sub Court, Pathanamthitta, which directed the defendant to specifically perform a contract for sale dated 14.10.2010 in favour of the plaintiff in the suit. The aggrieved defendant is the appellant.

3. The parties are referred to from their original status before the court below. The pleadings are summarized thus:

Ext.A1 contract for sale of the plaint schedule property, having an extent of 43.5 cents (17.61 ares), was entered into by and between the plaintiff as the vendee and the defendant as the vendor on 14.10.2010 for a sale consideration calculated at the rate of Rs.1,50,000/- per cent. A sum of Rs.10,00,000/- was paid as advance sale consideration on the date of agreement. The period fixed for performance was six months. The agreement inter alia stipulates that the defendant shall convince the plaintiff the boundaries and extent of the plaint schedule property as per survey records, excluding the road and thodu puramboke and the consideration has to be paid on the extent so found on measurement, at the agreed rate. Though the plaintiff was ready and willing to perform his part of the contract and approached the defendant on several occasions to get the property measured, the defendant did not care to do so. The plaintiff therefore issued Ext.A2 lawyer's notice on 4.4.2011 expressing his readiness and willingness to perform his part of the contract and calling upon the defendant to fix a date and time for measurement of the property, as also, for execution of the sale deed. However, the defendant did not take any step before the expiry of the period stipulated in the contract, i.e., 14.4.2011. On 18.4.2011, a reply notice was caused to be issued falsely alleging that the property was already measured on 24.3.2011 through one Chandrangathan, a retired surveyor and that the defendant is in actual possession of 46.891 cents, as against 43½ cents covered by the title deeds. The time stipulated in the contract was unilaterally extended by the defendant till 23.4.2011 and he demanded payment of Rs.55,25,000/- towards balance sale consideration, which amount is calculated reckoning an extent of 43½ cents only. The reply notice also stipulated that, on the event of failure to pay the balance sale consideration as demanded, the contract will stand cancelled. The defendant is not in actual possession of 46.891 cents as claimed. The property was never jointly measured by the plaintiff and defendant. The extent of the property available, after excluding the road and thodu puramboke, is only about 41 cents, which is the reason why the defendant is not prepared to measure the property. The allegation in the reply notice that the plaintiff wants to undervalue the property in the sale deed is also false. Although the plaintiff again contacted the defendant with revenue plans and persuaded him to execute the sale deed upon receiving the balance sale consideration for the actual extent, the attempt was in vain. On such premise, the plaintiff sought for specific performance of the contract, accepting sale consideration for the actual extent found on measurement, excluding the road and thodu puramboke. The plaintiff also sought for a relief to determine the extent of the property by a measurement enabled through the process of court.

4. The defendant resisted the suit contending that the same is not maintainable, besides being bereft of any bonafides. T