Plaintiff's delay and failure to prove readiness and willingness justifies denying specific performance relief.

J U D G M E N T

The unsuccessful plaintiff in the suit is the appellant. She filed a suit for Specific Performance of Sale Agreement dated 07.03.2003. The suit was dismissed by the Trial Court. The first appeal filed by the plaintiff was partly allowed and the First Appellate Court granted a decree for alternative relief of return of advance amount. Aggrieved by the dismissal of the suit in respect of the primary relief of Specific Performance, the plaintiff has come before this Court.

2. According to the plaintiff, she entered into a Suit Sale Agreement with 1^st respondent for purchase of the agreement mentioned property for a sale consideration of Rs.6,00,000/- on 07.03.2003. As per the terms of agreement, the plaintiff paid advance amount of Rs.5,70,000/- on the date of agreement and she agreed to repay the balance amount and get the sale deed executed within three months after discharge of the mortgage liability to the tune of Rs.1,66,308/- as on the date of agreement. Though the 1^st defendant agreed to discharge the mortgage debt within the time stipulated, he failed to discharge the same inspite of several representation made by the plaintiff. Therefore, the plaintiff issued a pre-suit notice dated 17.11.2003 calling upon the 1^st defendant to discharge the mortgage debt and execute the sale agreement after receiving the balance sale consideration within the weeks time. However, there was no response from the 1^st defendant. Since the 1^st defendant attempted to alienate the suit property, the plaintiff filed a suit in O.S.No.27 of 2004 on the file of the District Munsif, Chengalpattu seeking injunction restraining the 1^st defendant from alienating or encumbering the agreement mentioned property. The said suit was dismissed for default on 01.09.2005. After dismissal of the suit, the 1^st defendant sold the property to the 2^nd defendant. The plaintiff acquired knowledge about the sale only on 08.09.2005, when she obtained Encumbrance Certificate. Thereafter, the plaintiff issued another notice to the 1^st defendant, it was returned. In such circumstances, the plaintiff was constrained to file a suit for specific performance.

3. The 1^st defendant filed written statement denying execution of the suit sale agreement. It was his case that the plaintiff was conducting a chit business and as a subscriber, the 1^st defendant handed over the unfilled signed stamp paper and plain paper to plaintiff as a security and the same has been misused by her. It was the specific case of the 1^st defendant that he never agreed to sell the property to the plaintiff and he never received any advance amount. It was further pleaded that he sold the property to the 2^nd defendant pursuant to the prior agreement entered into with him. The 1^st defendant also denied the readiness and willingness of the plaintiff.

4. The 2^nd defendant filed written statement and claimed that he purchased the property from the 1^st defendant without notice of earlier agreement between the plaintiff and 1^st defendant and hence, sought for dismissal of the suit.

5. Before the Trial Court, the plaintiff was examined as PW.1 and the attestor to the agreement was examined as PW.2. On behalf of the plaintiff, 19 documents were marked as Exs.A1 to A19. The defendants 1 and 2 were examined as DW.1 and DW.2. On behalf of the defendants, 5 documents were marked as Exs.B1 to B5.

6. The Trial Court on consideration of evidence available on record, came to the conclusion that the plaintiff was not entitled to decree for specific performance and dismissed the suit. Aggrieved by the same, the plaintiff preferred fir