S.Krishnamurthy v. M.Venkateswara Rao @ M.V.Rao (died)

JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.,)Challenge is made to the judgment of a learned single Judge ofthis Court dated 28.11.2003 rendered in C.S.No.585 of 1992, wherebya suit filed for specific performance and delivery of vacantpossession of the suit property or alternatively, refund of advanceand damages both past and future, has been partly decreed.2. The appellant/plaintiff filed the suit with the followingaverments;(a) The plaintiff is the owner of the property at Door No.18,Lakshminarasimhan Street, T.Nagar, Madras. He entered into anagreement of sale in respect of the suit property with M/s.AlacrityFoundation Private Limited. All procedural formalities werecomplied with and the sale consideration was also fixed at Rs.63lakhs, which was to be paid in instalments. As advised by the taxconsultant, the plaintiff purchased another residential house, toavoid the Capital Gains Tax. (b) While the matter stood thus, the defendant, who is theowner of the suit property situate at No.14, II Street, NandanamExtension, Chennai-35, came forward to sell the same. The terms andconditions of sale were put in written agreement dated 09.12.1989.The sale consideration was fixed at Rs.16 lakhs and an advance ofRs.2.50 lakhs was paid on the date of the agreement. The plaintiffagreed to pay the balance sale consideration within two months fromthe date of the agreement and to have the sale deed executed andregistered. The said period was fixed mainly only on the defendant'sassurance that he would get the 'No Objection Certificate' from theappropriate authorities within the said period. There was a defaultclause in the agreement, which entitled the plaintiff to a sum ofRs.50,000/- by way of damages, in addition to the right to sue thedefendant for specific performance, if there was any breach on thepart of the defendant. The 'No Objection Certificate' under Section269 UG.(2) of the Income Tax Act was issued by the authorities on12.02.1990. The plaintiff prepared a draft deed and forwarded thesame to the defendant for obtaining the requisite Income TaxClearance Certificate under Section 230-A of the Income Tax Act.The defendant, being the resident of Hyderabad, the correspondencedeveloped between the parties through post and over phone. (c) In the meantime, the plaintiff's property was sold and hehad to vacate the same and take up the place of residence. Heoccupied another apartment on the monthly rent of Rs.5,000/-, hopingthat the suit transaction could be completed. Thereafter, heshifted the present address. The plaintiff, in compliance with theprovisions of the Income Tax Act, opened a separate bank account https://hcservices.ecourts.gov.in/hcservices/ earmarked for Capital Gains purposes with the Union Bank of India,Egmore Branch and deposits were made in this account and theplaintiff had indicated to the defendant that as and when required,further funds would be released from the said account. A copy of theincome tax clearance certificate was received on 20th June 1990,which was forwarded by the defendant, but the finalised draft saledeed was not sent to the plaintiff. The defendant sent a letter on26.06.1990 complaining of delay on the part of the plaintiff andthreatened that the balance sale consideration must be paid by09.07.1990; otherwise, the agreement would be rescind. Theplaintiff had clearly indicated to the defendant that because of hisevasive activities, he would not be able to complete the transactionon or before 31.07.1990. The defendant's son agreed for the same.He also agreed to forward a finalised draft sale deed to enable theplaintiff to type the sale deed on stamp paper. (d) In the meanwhile, the defendant demanded further Rs.6lakhs. The plaintiff drew from the Capital Gains Account to pay thesaid amount. It was the defendant who requested to further advanceof Rs.5 lakhs and the plaintiff also agreed to pay the same andrequested that at least, the upstairs portion may be vacated toenable the plaintiff to occupy the same, so that he could save themonthly recurring expenditure of rental. But the defendant refusedto accede to this request and demanded that the entire balance saleconsideration should be paid within 3 months from the date of suchpayment. In November, 1990, the parties were unable to communicateeach other due to the strike in the Telephone Department. Theplaintiff offered to pay the entire balance sale consideration lessRs.50,000/- which he would pay at the time of registration of thesale deed and that he would give a bank guarantee for the said sumand that the defendant should deliver the vacant possession. He alsorequested that the registration should be done after the Tamil monthof Margazhi. On 20.11.1990, all of a sudden, the defendantterminated the suit agreement, claiming that he would appropriatethe sum of Rs.50,000/- towards damages. On 23.04.1991, the plaintiffissued a lawyer notice, which broughtforth the reply on 13.05.1991.The plaintiff has all along been ready and willing to perform hispart of the contract and because of the defendant refusing toperform the contract, the plaintiff had to pay a heavy sum asCapital Gains Tax. Therefore, the plaintiff claimed that thisamount, which he was called upon to pay as Capital Gains, thedefendant should pay damages and the plaintiff further claimed thatthe amount he had been paying towards rent should also be paid asdamages and the plaintiff was always ready and willing and that thedefendant was not ready to execute the sale deed. Hence, the suitwas filed for specific performance. 3. The suit was resisted by the defendant with the followingaverments; (a) It is admitted that the defendant is the owner of the suit https://hcservices.ecourts.gov.in/hcservices/ property and there was also an agreement entered into on 09.12.1989,fixing the sale consideration of Rs.16 lakhs. The plaintiff was notready and willing to perform his part of the obligation even thougha letter was written by the defendant as early as June 1990. Theplaintiff did not come forward to pay the amount and he did not havethe full amount for payment and requested the defendant to acceptthe same by instalments and since, in spite of granting time onseveral occasions, the plaintiff could not pay, the defendantterminated the agreement. (b) It is the plaintiff, who had committed breach of theagreement and was never ready and willing. He did not have the moneyto pay and hence, he is not entitled to the relief of specificperformance. At no point of time, the plaintiff has not indicatedhis readiness and willingness. The defendant is not concerned withthe incidence of Capital Gains Tax and, therefore, he is not liableto pay the damages. If the plaintiff had paid the entire amount, thesale would have been completed. Therefore, the defendant is notliable and the question of delivery of vacant possession would ariseonly after the payment of full sale consideration and registrationof sale deed. The plaintiff was at default and he had committedbreach and there is no question of claiming any amount by way ofdamages for use and occupation on account of the payment of rent.Hence, he is not entitled for the reliefs sought for and the suitis liable to be dismissed.4. The learned single Judge framed 7 issues and at the time oftrial, the plaintiff was examined as P.W.1 and the defendant wasexamined as D.W.1 and Exs.P-1 to P-37 were marked. On completion ofthe evidence of both sides and on hearing the submissions made, thelearned trial Judge took the view that the plaintiff is not entitledfor the relief of specific performance and dismissed the suit.While doing so, the learned Judge permitted the plaintiff towithdraw the amount deposited and also entitled to interest at 12%on the said sum from 20.11.1990 till the date of deposit. Aggrievedover the same, the plaintiff has broughtforth the appeal before thisCourt.5. Advancing the arguments on behalf of the appellant, learnedsenior counsel would submit that the trial Judge should have grantedthe relief of specific performance by exercising the judicial andequitable discretion vested on the Court, having found that there isa valid, legal and lawful enforceable contract for the purchase ofthe suit property, as has entered into between the parties; that thetrial court has not properly appreciated the oral and documentaryevidence, which resulted in miscarriage of justice; that theappellant has entered into the contract under Ex.P-1 as early as09.12.1989 for purchase of the suit property for a consideration ofRs.16 lakhs and made an advance of Rs.2.50 lakhs on the date of thecontract and agreed to pay the balance of sale consideration of https://hcservices.ecourts.gov.in/hcservices/ Rs.13.50 lakhs to the respondent/defendant within two months fromthe date of execution of the contract i.e.at the time of executionand registration of the sale deed in his favour; that from theexchange of letters between the parties, it is quite clear that timewas not essence of the contract; but on the contrary, the trialJudge has taken a view that the time was treated by the parties asessence of the contract and declined to grant the relief of specificperformance of the contract, which was contrary to the evidenceadduced by the parties; that the trial Judge should have appreciatedthe terms of the contract and the performance of the contract, asstipulated under the agreement dated 09.12.1989 and therespondent/defendant had not performed his obligations and dutiesenjoined upon him and that under such circumstances, the conclusionof the learned Judge that the appellant has committed breach of theessential terms of the contract was not only unsound and untenablebut also perverse. 6. Added further the learned senior counsel that under theterms of the contract, a duty was enjoined upon the vendor, namely,the respondent, to apply the permission from the appropriateauthorities i.e.the Income Tax Department and also for obtainingIncome tax Clearance Certificate as contemplated under Section 230-Aof the Income Tax Act and execute the sale deed in accordance withthe terms of the contract and admittedly, the permission from theappropriate authorities was not obtained within the stipulatedperiod of two months and, as such, the delay, which has resulted inperformance of the contract, was beyond the control of the parties,which act has been totally ignored by the learned single Judge whilepassing the impugned judgment and that, even after 7 months, theIncome Tax Clearance Certificate under Section 230-A of the said Acthas not been secured by the respondent on flimsy and untenablegrounds and secured the certificate belatedly, for which, theappellant cannot be blamed and that, the conclusion made by thetrial Judge that the time had been treated as essence of thecontract and the contract should have been performed within thereasonable time, was contrary to the oral and documentary evidence. 7. Added further the learned senior counsel that the principlesof readiness and willingness as found under Section 16(c) and 20 ofthe Specific Relief Act have not been appreciated by the trial Judgeand as such, there was no proper exercise of the judicial andequitable discretion vested in the court in the light of thematerials placed before the trial Court; that the plaintiffspecifically averred and proved the readiness and willingness toperform the essential terms of the contract at all relevant pointsof time from the inception of the contract till the date of hisproceedings, which had come to an end at the time of trial asevidenced by the Court; that while so, the conclusion reached by thetrial Court was contra and untenable in law, which has got to be setaside; that the trial Court has not properly understood the https://hcservices.ecourts.gov.in/hcservices/ explanation to Section 16(c) of the Act, where the contract involvesthe payment of money, which is not essential for the plaintiff toactually tender to the defendant or deposit into Court any moneyexcept when so directed by the Court and it is not a straight jacketform that the plaintiff should prove his readiness and willingnessto perform the essential terms of the contract by jingling the coinbefore the Court; that the trial Judge should have appreciated thefacts that the appellant had indicated in the plaint itself that thepayment he has received from M/s.Alacrity Foundations Limited, withwhom he entered into contract and how he has invested the saleproceeds received by him in a Capital Gains Account, as could beseen from the certificate issued by the Union Bank of India, EgmoreBranch, as early as 21.10.1991 under Ex.P-22 and hence, theconclusion of the learned Judge that the appellant was not possessedof the balance sale consideration payable by him to the vendor, wasbased on no evidence; that it was quite evident from the materialsavailable that the terms of the contract, particularly, the paymentschedule, has been varied by the conduct of the parties and theperformance was not as per the original terms contained under Ex.P-1; that the balance sale consideration was payable at the time ofexecution and registration of the sale deed; however, the respondentto meet his commitment, wanted a further sum of Rs.6 lakhs from theappellant in variance of the terms of the contract and as a matterof fact, he received a sum of Rs.6 lakhs and agreed to receive thebalance sale consideration in instalments, namely, the 1st instalmentpayment of Rs.5,00,000/- in October, 1990, and sought for thebalance of sale consideration at the time of execution andregistration of the sale deed and also agreed to deliver vacantpossession of the suit property within three months from October,1990 as per Ex.P-12 dated 19.10.1990; that it was the respondent,who wanted to wriggle out of the contract on flimsy and untenablegrounds with a view to make unjust enrichment, which fact hastotally ignored by the trial Judge while considering the case of theplaintiff for specific performance; that the respective pleadingsand the evidence on record in the light of the materials that havebeen placed before the trial Court have not been analysed properlyand that, while the appellant has satisfactorily averred and provedthe readiness and willingness, as required by law, the conclusion ofthe trial court that he has not proved the same, was contrary to theevidence available. 8. The learned senior counsel would further submit that theappellant has not wilfully acted in variance of the original orderor the subversion of the terms of the contract and hence, thefinding of the trial Judge that the plaintiff had acted in varianceof the contract was illegal and untenable in law; that theappellant has parted with a sum of Rs.8.50 lakhs pursuant to thecontract dated 09.12.1989 and has been undertaking several journeysto the residence of the 1st respondent and his son to find out thestatus of the contract and the evidence which was placed before the https://hcservices.ecourts.gov.in/hcservices/ Court would reveal that the respondent has been carrying on businessin the ground floor of the premises and has been residing in thefirst floor therein and as such, even though an attempt has beenmade before the Court by the respondent that he was willing todeliver vacant possession of the property to the appellant in termsof Ex.P-1, no effective steps have been taken to substantiate thesaid fact; but, however, the trial Judge, believing the evidence ofthe respondent, held that the defendant was ready and willing toperform his part and that it was the plaintiff/appellant, who hascommitted breach of the terms of the contract, which are erroneous;that the appellant has been living in a rented premises and has beenpaying the rents to the landlord and there existed an element ofanxiety on the part of the appellant to conclude the contract at theearliest, so that he could avoid payment of Capital Gains and alsooccupy his own residential property for his personal use andoccupation which fact has not been considered by the learned Judge.9. Added further the learned senior counsel that the appellanthas been writing series of letters to the respondent, expressing hisreadiness to conclude the contract at the earliest and having seenthe conduct of the respondent, the apprehension of the appellantthat the respondent was not willing to deliver possession of thedocuments for scrutiny, so also the possession of the first floor,would be natural and probable for any person, who had parted with ahuge sum of money; that the letter dated 11.08.1990 written by therespondent's son under Ex.P-37, would clearly indicate that theintention of the respondent is manifest and crystal clear that hewants to sell the property to a third party for an enhanced priceand share the sale proceeds with the appellant after refund of theadvance sale consideration and it was not taken into considerationby the learned trial Judge; that it is pertinent to point out thatthe appellant had suffered Capital Gains and had to contest theproceedings with the Income Tax Department and ultimately paid a sumof Rs.1,57,992/- under Ex.P-36, which would manifestly prove andestablish that the appellant has never been in breach and it was therespondent, who has committed breach of the contract; that therespondent had the benefit of Rs.8.50 lakhs paid by the appellanttowards the advance sale consideration pursuant to the contract,besides that he has also been enjoying the property, which isunjust, unfair and unreasonable.10. Added further the learned senior counsel that the trialJudge has not properly appreciated the contents of Ex.P-8 dated17.09.1990 and the subsequent correspondence under Exs.P-9 to P-12;that the respondent has agreed to deliver possession of the propertyand also received payment in variance of the contract Ex.P-1.Under Ex.P-15 dated 18.12.1990, the appellant had indicated to therespondent that he was willing to pay the entire sale considerationand by retaining a sum of Rs.50,000/- for which also, he has offeredto give a bank guarantee, so that the essential terms of the https://hcservices.ecourts.gov.in/hcservices/ contract are not breached, thereby the contract can be fulfilledwithout there being any scope for misunderstanding in implementationof the contract; that the respondent has never shown keenness toproduce the title deeds and expected the appellant to pay the saleconsideration and to have the registration of the sale deed and waitindefinitely for possession thereto, was contrary to the terms inEx.P-1; that the trial Judge should have considered the hardships,that are likely to be caused to the appellant, if the relief ofspecific performance was declined; that it is pertinent to point outthat the appellant had paid more than 50% of the sale considerationand has deposited the balance in the Capital Gains Account and undersuch circumstances, the relief of specific performance should havebeen ordered; that non-production of the pass book before the Courtby the appellant could not be a ground to decline the relief ofspecific performance; that there cannot be any valid rescinding ortermination of the contract in accordance with Ex.P-1 inasmuch asthe respondent has not refunded the money while effectingtermination of the contract; that while so, the learned Judge was inerror in holding that there had been a valid termination of thecontract and directed the refund of the money from 20.11.1990together with interest at 12% per annum till the date of deposit;that though the refund has been directed to be paid to theappellant, the learned Judge declined to decree the suit withproportionate cost and damages which should have been ordered; thatthe trial Judge should have taken into consideration the conduct ofboth sides; that it is true that there was a duty on the purchaserto perform his readiness and willingness at all material point oftime, which could be evidenced from Ex.P-33, which has not beenconsidered by the trial Judge. Under such circumstances, it is afit case where the relief of specific performance should have beengranted and hence, the judgment of the trial Judge has got to be setaside and the reliefs have got to be granted.11. The Court heard the learned counsel for the respondents,who, in his sincere attempt to sustain the judgment of the trialCourt, putforth the very same contentions which were raised beforethe trial Court.12. The Court has paid anxious consideration on the submissionsmade by the learned counsel on either side.The following points are formulated for determination in theappeal:(1) Whether the appellant/plaintiff is entitled forthe relief of specific performance and also delivery ofpossession ?(2) Whether the plaintiff is entitled for any otherrelief ? https://hcservices.ecourts.gov.in/hcservices/

13. As could be seen from the above, it was a suit for specificperformance filed by the appellant/plaintiff on the strength ofEx.P-1, written sale agreement, dated 09.12.1989. Out of the saleconsideration of Rs.16 lakhs, as found in Ex.P-1, Rs.2.50 lakhs waspaid as advance. It is evident under Ex.P-1 that the title deedsand other relevant documents were already available in respect ofthe property sold with the vendor, namely, the respondent/defendant, who should give vacant possession of the property at thetime of registration of the sale deed; that the balance of saleconsideration, namely, Rs.13.50 lakhs should be paid to the vendorand the document should be executed and registered within two monthsfrom that date since the time was essence of the contract; that thevendor should apply for permission for the sale of the property fromthe appropriate authorities of the Income Tax Department for thesale of the property to the vendee and if not obtained from theappropriate authorities of the Income Tax Department, the advanceamount is repayable and apart from that, the vendor should obtain aclearance from the Income Tax Department under Section 230-A of theIncome Tax Act. Though the time for completion of the transactionwas stipulated as two months under Ex.P-1 dated 09.12.1989, the 'NoObjection Certificate' was obtained beyond the said period of twomonths. From Ex.P-3 dated 19.02.1990, some amendments to the draftsale deed were suggested by the respondent. Under Ex.P-5 dated26.06.1990, the defendant has made it clear that the 'No ObjectionCertificate' from the Income Tax Department was already obtained.But, despite many reminders, the plaintiff has not come forward tofulfil his obligation. It was also pointed out by therespondent/defendant under the said letter that if the balance ofsale consideration is not paid on or before 09.07.1990, clause 12 ofthe Agreement was to be invoked to cancel the agreement. At thisjuncture, the plaintiff has sent a reply dated 06.07.1990 that hegave assurance that the transaction could be completed before theend of July. Following the said correspondence, on 17.09.1990, theplaintiff sent a letter under Ex.P-8 along with a pay order for Rs.6lakhs, wherein he had stated that he was successful in getting a sumof Rs.6 lakhs. The same was acknowledged by the defendant. Inreply, the defendant asked the plaintiff to send another banker'scheque for Rs.5 lakhs within a week's time under Ex.P-12, aspromised by the plaintiff. 14. It is pertinent to point out that under Ex.P-11 dated05.10.1990, the plaintiff assured that he would arrange a sum ofRs.5 lakhs and the transaction could be completed finally; that thedefendant's son should arrange to give possession of the upstairspotion of the premises and also delivery of documents of title andthat if payment of Rs.5 lakhs is further made, he would have madesubstantial payment exceeding 75%. While acknowledging Ex.P-11, thedefendant wrote a letter under Ex.P-12 dated 19.10.1990, where hemade it clear that the entire transaction should be completed within https://hcservices.ecourts.gov.in/hcservices/ a period of three months and he further indicated in the said letterthat if the entire balance of sale consideration is paid before31.10.1990, he has no objection in giving possession of theproperty. 15. It is pertinent to point out that Ex.P-13, registeredletter, was sent on 20.11.1990, wherein the relevant paragraphs readas follows:"...You have not even acknowledged my letter. Iearnestly but unsuccessfully tried to contact you onphone. From your silence, I only infer that you are notserious in getting the sale transaction completed and youwish to go back on the terms of agreement of sale.You will also please note that your payments ofamounts at your convenience is no answer to the fulfilmentof the terms of agreement and the terms got automaticallyviolated by you. You made the agreement unworkable...".In reply, the plaintiff issued Ex.P-14 letter on 04.12.1990, wherehe requested the defendant to consider his side as well. Finallyunder Ex.P-17 dated 28.03.1991, the defendant has pointed out Ex.P-13 letter referred to above and stated that the agreement stoodcancelled and hence, the plaintiff could collect the balance of theadvance amount. All these would indicate that the plaintiff has notmade the payments as per the terms of Ex.P-1.16. The plaintiff, who examined as P.W.1, has categoricallyadmitted that he did not pay Rs.5 lakhs, as demanded by thedefendant and that he wanted possession of the first floor, apartfrom the original documents of title. He has further added that ifthe sum of Rs.5 lakhs was paid, it would exceed 75% of the saleconsideration and it was in that circumstances, he wanted possessionof the upstairs portion and also delivery of original documents.The candid admission made by the plaintiff in evidence that he wouldgive the said amount of Rs.5 lakhs only if the defendant deliveredthe possession and also handed over the title deeds and otherdocuments of property, was a demand repugnant to the clause in theagreement that the vendor should deliver the possession of theproperty and also the title deeds pertaining to the property only atthe time of execution of the sale deed. Speaking about the clausefound in the agreement, the plaintiff has also admitted that thedelivery of possession would be immediately after the conclusion ofthe sale deed. Further, he has added in his evidence that he didnot pay the balance amount on or before 31.07.1990 as agreed by himso as to get the sale deed registered and after Ex.P-7 letter, theplaintiff has not asked for time to pay the balance of saleconsideration. But he was only insisting on the original documentsfor preparing the final sale deed. Contrary to the stipulation underEx.P-1 agreement, the plaintiff has deposed that the defendant hasnot delivered the original documents, as required by him, and thatit is the only default committed by the defendant and nothing is https://hcservices.ecourts.gov.in/hcservices/ mentioned about the delivery of the documents under Ex.P-1. The saidfacts, namely, his demand for possession of a part of the propertyand also the delivery of documents of title pertaining to theproperty, would indicate that the sale was not only in breach of theterms of the agreement, but also it would be indicative of theevasive process and tactics which the plaintiff was doing all alongthe period. The contention putforth by the appellant's side thatmore than 50% of the amount was already paid and if Rs.5 lakhs, asdemanded by the defendant was paid, it would have exceeded 75% ofthe amount and thus, the plaintiff was justified in making a demandfor possession and also delivery of documents, could not beaccepted. If this contention is accepted, it would be against the very terms of the agreement, which would be binding onthe parties. 17. At this juncture, it is pertinent to point out that thedefendant was expressing his readiness and willingness to hand overthe entire possession of the property if the entire considerationwas paid. But to that course, the plaintiff was not amenable and hewas also kept silent. The stand taken by the plaintiff that theoriginal documents were required by his counsel for preparation ofthe sale deed was only a ruse invent. Since there is a candidadmission that the draft sale deeds were originally prepared withthe copy of the documents and when it was specifically agreed underEx.P-1 sale agreement that all the original documents pertaining tothe property should be handed over by the vendor to the vendee atthe time of execution of the registered sale deed, making a demandfor the delivery of the original sale deeds would not only repugnantto the agreement but also would indicate that the plaintiff wantedto gain time.18. Learned counsel for the appellant brought to the notice ofthe Court that though it was stated in the agreement Ex.P-1 that thetime was essence of the contract and two months' time was alsostipulated therein, even the 'No Objection Certificate' was obtainedbeyond the time and the defendant has also received furtherpayments therefrom and thus, by conduct, the parties have varied theterms of the agreement and the conduct of the plaintiff wouldclearly indicate that he was all along ready and willing to performhis part of the contract. This contention is liable to be rejectedsince the conduct of the plaintiff would indicate that he was neverready and willing to perform his part of the contract. The conceptof readiness and willingness to perform the contract, would indicatethat the availability of funds in the hands of the purchaser andalso the frame of mind expressing his willingness to complete thetransaction by performing the terms of the agreement, as found inthe agreement.19. The agreement was entered into on 09.12.1989. It is true,the transaction could not be completed within the stipulated time of https://hcservices.ecourts.gov.in/hcservices/ two months since there was a delay in getting 'No ObjectionCertificate' from the competent authority. But, at the earliest,Ex.P-12 dated 19.10.1990, made clear that the transaction should becompleted within a period of three months by making the payment ofbalance of sale consideration. Admittedly, the plaintiff has notcomplied with the same. On the contrary, for making furtherpayment of Rs.5 lakhs, he insisted for handing over of the upstairsportion, a part of the subject matter, and also the delivery of theoriginal documents. When the plaintiff has confronted with thedocuments, he has candidly admitted, he insisted so. This wouldindicate reluctance on the part of the plaintiff to perform theterms of the agreement as found in Ex.P-1. Thus, it is a clearcase, where the plaintiff has demanded the defendant to do certainacts, which were in breach and in violative of the terms of theagreement under Ex.P-1. At the same time, he was never ready to paythe balance sale consideration and get the documents executed.Under such circumstances, it is appropriate to rely on the decisionreported in Bal Krishna ..vs.. Bhagwan Das (AIR 2008 SC 1786), theSupreme Court held as follows:"Specific performance of the contract cannot beenforced in favour of a person who fails to aver and provehis readiness and willingness to perform the essentialterms of the contract. The compliance with therequirement of Section 16(c) of the Specific Relief Act,1963 (the Act) is mandatory and in the absence of proof ofthe same, the suit cannot succeed. The first requirementis that he must aver in plaint and thereafter prove thoseaverments made in the plaint. The plaintiff's readinessand willingness must be in accordance with the terms ofthe agreement..."20. In a suit for specific performance, a duty is cast upon theCourt to look into the conduct of the plaintiff and must take adecision whether or not to grant the relief. Having regard to theentirety of the pleadings as also the evidence brought on record,the Apex court has ruled in a case reported in Umabai ..vs..Nilkanth Dhondiba Chavan ((2005)6 SCC 243 as follows:"It is now well settled that the conduct of theparties, with a view to arrive at a finding as to whetherthe plaintiff-respondents were all along and still areready and willing to perform their part of contract as ismandatorily required under Section 16(c) of the SpecificRelier Act must be determined having regard to the entireattending circumstances. A bare averment in the plaintor a statement made in the examination-in-chief would notsuffice. The conduct of the plaintiff-respondents mustbe judged having regard to the entirety of the pleadingsas also the evidences brought on records". https://hcservices.ecourts.gov.in/hcservices/

21. Applying the principles laid down by the Supreme Court andthe catena of decisions by the Apex Court and this Court, thediscretionary relief of specific performance cannot be granted to aperson, who was neither ready nor willing to perform the terms, asfound in the contract. In the instant case, the plaintiff is notentitled for the reliefs on the ground that he was neither ready norwilling to perform his part of the contract. Apart from that, hehas expressed his demand for handing over of possession and deliveryof documents, which was repugnant to the agreement, cannot but beindicative of the breach committed by him. Under suchcircumstances, the finding of the learned trial Judge that he wasnot entitled for discretionary relief of specific performance, hasgot to be sustained and the finding regarding refund of the amountpaid by the plaintiff to the defendant along with interest at 12%from 20.11.1990 when the contract came to be terminated under Ex.P-13 by the defendant, was also correct. Under such circumstances, theappeal has got to be dismissed since it does not carry any merit.Accordingly the appeal fails and is dismissed. The partiesshall bear their costs. Connected M.P.is closed. GlSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarToThe Sub Assistant Registrar,Original Side, High Court,Madras.+ 1 cc to Mr. B.T. Seshadri, Advocate SR No.40375+ 1 cc to Mr. C. Ramesh, Advocate SR No.40426Judgment in O.S.A.No.440 of 2003NG(CO)SR/3.9.2009