J U D G M E N T

The defendant who has concurrently lost in both the Courts below is the appellant in this Second Appeal. The appeal has been admitted on the following substantial questions of law-

"a) Whether the plaintiff's burden and onus to substantiate the plaint allegation stands discharged merely on account of inconsistency in the evidence and pleading of the defendant?

b) Whether the Courts below are right in exercising the discretion of the specific performance of an agreement of sale allegedly renewed over a period of 15 years by alleged supplemental agreements with th sale consideration remaining the same in all the alleged agreements?

c) Whether the Courts below are right in decreeing the suit of specific performance without finding that the plaintiff has proved ready and willingness throughout the

15 years period from the date of the agreement of sale?"

The brief facts which are necessary to answer the above substantial questions of law is herein below narrated.

For the ease of convenience parties are referred to in the same ranking as before the Sub Court, Udhagamandalam.

Plaintiff's Case-

2. The plaintiff had filed a suit O.S.No.31 of 2011 on the file of the Sub Court, Nilgiri Udhagamandalam for the following relief:-

"a. directing the defendant to execute and register sale deed in respect of the suit schedule properties in favour of the plaintiff within a time specified by this Honourable Court, failing which the said sale deed be executed and registered by this Hon'ble Court according to the provisions of Order XXI Rule 34 of C.P.C. also directing the Defendant to hand over possession of the suit schedule properties unto the Plaintiff.

Or in the alternative b. directing the Defendant to repay the amount received as purchase money, together with accrued interest i.e, 9,11,068/- (Rupees Nine Lakhs Evelen Laksh and Sixty Eight only) and subsequent interest at the rate of 12% per annum from the date of the suit, till the date of decree and thereafter at the same rate until its realization in full, declaring the said sum which is unpaid purchase money, together with interest, costs and other incidentals to be a charge on the suit schedule property, as contemplated under Section 55(6) (b) of the Transfer of Property Act and if the same is not paid withing a time stipulated by this Honourable court, directing the sale of the charged property."

3. It is the case of the plaintiff that she had entered into an agreement with the defendant to purchase the suit property for a total sale consideration of Rs.7,00,000/-. On the date of the agreement an advance of Rs.2,50,000/- was paid and the balance was to be paid within a period of one year. The agreement of sale was registered as Document No.1020 of 96, on the file of the Sub Registrar Coonoor. However, since the defendant was unable to deliver possession of the schedule property as she had given it on lease to one Wahid to carry on Floriculture, a supplemental agreement of sale dated 04.12.1999 was entered into between herself and defendant. Under this agreement a further sum of Rs.2,50,000/- was paid towards advance leaving balance of Rs.1,50,000/- . The time for performance was extended by a further period of 1 year from the date of the supplemental agreement. Once again on 05.01.2007 a fresh agreement of sale was drawn up and a further sum of Rs.1,50,000/- was paid to the defendant leaving a balance of Rs50,000/- which was to be paid within a period of 15 months i.e; on or before

04.03.2008.

4. It is the case of the plaintiff that the defendant had handed over the custody of the original title deeds and parties had never made time the essence of the contract. The extension of contract was only on account of the fact that the defendant could not hand over the physical possession of the property as agreed after evicting the lessee one Wahid occupying it. The plaintiff would further submit that although she had tendered the balance sum of Rs.50,000/- to the defendant within the time s