Continuous readiness and willingness to perform a contract must be established for entitlement to specific performance.

JUDGMENT

Heard.

2. This Second Appeal is filed against the judgment and decree dated

22.11.2011 in A.S. No. 14 of 2011 before the Additional District Judge (FTC– II), Salem, which confirmed the judgment and decree dated 30.10.2010 in O.S. No. 197 of 2009 before the Principal Subordinate Judge, Salem. In those judgments, the suit for specific performance based on an unregistered sale agreement dated 14.07.2006 was dismissed as to the main relief on the ground that the plaintiff had not proved continuous readiness and willingness. However, the Court granted the alternative relief of refund of the advance amount of Rs.10,000/- with interest.

3. For convenience, the parties are referred to in this appeal according to their positions in the Trial Court.

4. The plaintiff’s case is that the defendant agreed to sell the suit property at Rs.75 per sq.ft., executed a sale agreement dated 14.07.2006, and received an advance of Rs.10,000. Under the agreement, the defendant was to execute the sale deed within three months. The plaintiff further states that after measurement he noticed some deviation and that there was no proper access road, which the defendant promised to rectify. Even so, the plaintiff claims he was willing to buy the property “as is”. Since the defendant allegedly avoided executing the sale deed, the plaintiff issued a legal notice on 03.07.2009 and then filed the suit for specific performance or, alternatively, for refund of the advance amount with interest.

5. The defendant completely denied the agreement. He alleged that the document was forged and fabricated, that there was no intention to sell the property, and that the plaintiff had misused papers signed by him. He also denied receiving any advance amount. On these grounds, the defendant sought dismissal of the suit.

6. The Trial Court framed issues on whether the agreement was genuine, whether the plaintiff was ready and willing to perform his part, and whether he was entitled to relief. On execution of the agreement, the Trial Court accepted Ex.A1 as proved, mainly on the evidence of the attesting witness (P.W.2). His evidence was not shaken in cross-examination, and the Court rejected the plea of forgery.

7. On readiness and willingness, the Trial Court gave a clear factual finding. It noted that Ex.A1 fixed three months for completion, the plaintiff paid only a small advance, and he took no steps at all within the agreed time. The plaintiff then remained silent for nearly three years and issued a notice only on 03.07.2009. The Court also found that the plaintiff’s explanation about pathway or deviation was not convincing on the evidence. Based on this conduct, the Court held that the plaintiff had not proved continuous readiness and willingness as required under Section 16(c) of the Specific Relief Act.

8. Therefore, the Court refused the relief of specific performance.

However, since the agreement was not found to be forged and repayment was not proved, the Court directed refund of Rs.10,000/- with interest.

9. The First Appellate Court independently reconsidered the entire record and agreed with the Trial Court on all material aspects. It held that readiness and willingness must be shown continuously and cannot be proved by mere statements. It gave importance to the plaintiff’s three-year silence after the contractual time expired. It rejected the argument that lack of cross-examination on some points amounted to an admission, and noted that readiness and willingness must be judged from the overall conduct, not from isolated pleadings. It also reiterated that specific performance is a discretionary remedy and that the Trial Court had exercise