A plaintiff in a suit for specific performance must mandatorily prove continuous readiness and willingness to perform the contract by establishing financial capacity to pay the balance consideration from the date of the agreement until the decree, as per Section 16(c) of the Specific Relief Act.

JUDGMENT

(Judgment of the Court was delivered by C.V.KARTHIKEYAN, J.)

The defendants in OS No.165/2010 on the file of the Principal District Court, Kanyakumari at Nagercoil are the appellants herein. OS No.165/2010 had been filed by the respondent seeking specific performance of an agreement of sale deed dated 04.09.2009 relating to the plaint schedule property. By judgment dated 12.10.2010, the suit was decreed. The defendants have therefore filed the present first appeal.

2. OS No.165 of 2010 – Principal District Court, Kanyakumari at Nagercoil:

It had been contended in the plaint that the first defendant was the owner of land and building measuring 4.5 cents of land at Vadiveeswaram Village at Nagercoil. The building consisted of two portions. The plaintiff was occupying the northern portion from the year 2004 as lessee. The defendant had been occupying southern portion. It had been contended that the first defendant wanted to sell the suit schedule property in entirety and the plaintiff had agreed to purchase the same and an agreement of sale was arrived at on 04.09.2009. The total sale consideration was determined at Rs.32/- lakhs. An advance of Rs.1,00,000/- was paid. Subsequently another amount of Rs.80,000/- was paid on 02.11.2009 and a further sum of Rs.1,20,000/- was paid on 04.11.2009. It was contended that the total advance of Rs.3/- lakhs was paid and the balance sale consideration payable was Rs.29/- lakhs. It had been contended that the first defendant had to measure the property and fix the boundaries. It had been further contended that the plaintiff was always ready and willing to perform his part of the agreement.

3. It had been further contended that on 04.02.2010, the plaintiff requested the first defendant to come over to the Sub Registrar's office at Nagercoil on 05.02.2010 and receive the entire sale consideration and execute the sale deed with respect to the plaint schedule property. It was further contended that the plaintiff was waiting at the Sub Registrar's Office at Nagercoil on 05.02.2010, but the first defendant did not come. Thereafter, the plaintiff issued a notice on 25.02.2010 asking the first defendant to receive the entire balance of Rs.29/- lakhs and execute the sale deed in favour of the plaintiff. The first defendant sent a reply on 03.03.2010 contending that he was waiting in the Sub Registrar's office on 05.02.2010, but that the plaintiff had only Rs.20/- lakhs and did not have the entire balance sale consideration. The first defendant stated that if the balance sale consideration is paid by way of Demand Draft, he would execute the sale deed. The plaintiff issued a rejoinder on 10.03.2010 that the plaintiff was always ready with the balance sale consideration and calling upon the defendant to provide the documents of the suit schedule property and fix a date for execution of the sale deed. It had been contended that the first defendant did not hand over the documents. It had been contended that thereafter the property was measured on 18.08.2010. The plaintiff then issued a further notice on 30.08.2010 calling upon the first defendant to perform his part of the agreement and fix a date for execution of the sale deed. The first defendant issued a reply on 16.09.2010 that he had executed a gift deed with respect to the property in the name of the 2nd defendant. The first defendant also returned the advance amount of Rs.3/- lakhs by way of demand draft to the plaintiff. The plaintiff conten