Plaintiff proved readiness and willingness for specific performance via bank passbooks and notices; appellate court correctly admitted additional evidence without cross-exam request.

J U D G M E N T

The Legal Representatives of the unsuccessful defendant are the appellants. The respondent herein filed a suit in O.S.No.108 of 2007 for specific performance of agreement dated 13.04.2007. The suit was decreed by the Trial Court granting decree for specific performance. The appeal filed by the defendants was dismissed by the First Appellate Court. Aggrieved by the concurrent findings, the legal heirs of unsuccessful defendant have come before this Court. It is also seen that pending first appeal, the defendant died and his legal representatives were brought on record as defendants 2 to 6.

2. According to the respondent/plaintiff, the deceased defendant was the absolute owner of the agreement mentioned property. He entered into Suit Sale Agreement dated 13.04.2007 with the deceased defendant for purchase of the agreement mentioned property for the sale consideration of Rs.9,00,000/-. As per the terms of agreement, an advance amount of Rs.4,00,000/- was paid on the date of agreement (i.e.,13.04.2007). The balance sum of sale consideration shall be paid within a period of three months. The said period was due to expire on 13.07.2007. Even prior to the same, the plaintiff issued a pre-suit notice on 11.07.2007 expressing his readiness and willingness to pay the balance sale consideration and get the Sale Deed executed. The deceased defendant after receipt of notice issued a reply on 19.07.2007 directing the plaintiff to wait at the Registrar’s Office on 27.07.2007 at 2.30 P.M., with the balance sale consideration to enable him to execute the sale deed.

3. It was also stated by the plaintiff that the defendant failed to vacate the Mortgagee in the suit property. The plaintiff again issued a rejoinder that 24.07.2007 expressing his willingness to pay the balance sale consideration at Registrar’s Office, Nellikuppam and get the sale deed executed. It was further stated that the plaintiff purchased stamp papers and prepared the sale deed and waited in Registrar’s Office on 27.07.2007 from 1.30 pm onwards with the balance sale consideration. However, the defendant did not turnout and hence, the plaintiff filed the instant suit for specific performance.

4. The defendant filed written statement and resisted the suit by denying various averments found in the plaint. It was the case of the defendant that time was essence of the contract and defendant was always ready and willing to perform his part of the contract. On the other hand, the plaintiff only evaded performance of his part of the contract. It was also stated by the defendant that plaintiff expressed his inability on several occasions to purchase the agreement mentioned property due to non- availability of sufficient funds in his hands. It was also stated that within few days from the date of agreement, the simple mortgage over the agreement mentioned property was discharged by the defendant and demand was made to plaintiff to perform his part of the contract. It was further stated by the defendant that on 27.07.2007, he was waiting in the Sub-Registrar Office, Nellikuppam from 2.30 pm to 5.30 pm. However, the plaintiff failed to turnup. Thus, according to the defendant, he had taken every step to complete the sale transaction, however, the plaintiff evaded performance of his part of the obligation. On these pleadings, the defendant sought for dismissal of the suit.

5. Before the Trial Court, the plaintiff was examined as PW.1 and yet another witness was examined as PW.2. On behalf of the plaintiff, 5 documents were marked as Exs.A1 to A5. On behalf of the defendant, the Powe