BY AD v. R.RANJANIE

for specific performance, the plaintiff is in appeal.

2. Ext.A1 is the agreement dated 15.07.2005 which is sought to be specifically enforced. As per Ext.A1 an extent of 13 cents is agreed to be conveyed for a sale consideration of ` 16,500/- per cent. On the date of agreement an amount of ` 50,000/- was paid towards advance sale consideration. The period fixed for performance was two years. According to the plaintiff, further advances were made by him making the total advance consideration paid at ` 1,44,000/-. The plaintiff was put in possession of the property. Alleging failure on the part of the defendants to go ahead with the transaction, the suit was filed. R.F.A. No.794 of 2008 -: 2 :-

3. The defendants admitted Ext.A1 agreement. The claim of the plaintiff with regard to the payment of ` 1,44,000/- towards advance sale consideration was denied. According to the defendants, apart from the original advance amount of ` 50,000/- they were paid a further amount of ` 15,000/-, thus making the total advance consideration at ` 65,000/-. The plaintiff did not have sufficient financial capacity and he failed to clear the liability over the property with the Agricultural Bank, which was also a term of the agreement. It was the plaintiff who committed breach of the agreement, it was contended.

4. The trial court held that the plaintiff failed to prove his continued readiness and willingness to perform the agreement and accordingly declined the relief for specific performance. Finding that the plaintiff had paid an amount of ` 65,000/- towards advance sale consideration, a decree was granted for R.F.A. No.794 of 2008 -: 3 :- return of the same. Seeking decree for the main relief of specific performance, the plaintiff has preferred this appeal.

5. I have heard the learned counsel on either side.

6. The points that arise for determination in this appeal are :- (i) Is the finding of the trial court regarding the readiness and willingness of the plaintiff sustainable on the evidence ? (ii) What is the total amount of advance sale consideration paid by the plaintiff ? (iii) Is the discretion under Section 20 of the Specific Relief Act to be exercised in favour of the plaintiff to grant a decree for specific performance ?

7. According to the plaintiff, though as on the date of Ext.A1 agreement an amount of ` 50,000/- alone was paid towards advance sale consideration, there had been subsequent advances made and payments made into the loan liability of the first defendant with a Bank thus making the total advance sale consideration at R.F.A. No.794 of 2008 -: 4 :- ` 1,44,000/-. Though the agreement stipulated a duty on the plaintiff to discharge the liability over the property with the Bank, the first defendant by himself discharged the same and hence the plaintiff was unable to clear the liability. First defendant himself having prevented the performance of the obligation by the plaintiff, he cannot be faulted with, it is contended.

8. The first defendant contended that apart from the advance amount of ` 50,000/-, he had received a further amount of ` 15,000/- from the plaintiff, thus making the total advance sale consideration at ` 65,000/-. No further amounts were paid. It was further contended that the liability with the Bank was closed by the first defendant consequent on the delay on the part of the plaintiff in closing the same.

9. That an amount of ` 50,000/- was paid on the date of agreement is not disputed. The further payment of an amount of ` 10,000/- on 20.10.2005, ` 15,000/- on R.F.A. No.794 of 2008 -: 5 :-

11.11.2005, ` 15,000 on 17.11.2005 and ` 10,000 on

22.01.2007 are proved by Ext.A2 statement of accounts of the plaintiff's Bank. That the plaintiff had paid an amount of ` 5,000/- into the loan account of the first defendant with the Bank is proved by Ext.A3 receipt dated 29.03.2006. The defendants admit the receipt of only ` 15,000/- in addition to ` 50,000/- paid on the date of Ext.A1. However, Exts.A2 and A3 reveal the payment of an amount of ` 55,000/- in addition to the advance paid on the date of Ext.A1. Thus the total advance paid by the plaintiff is ` 1,05,000.

10. The plaintiff has a case that an amount of ` 30,000/- was paid during May, 2007 to meet the hospital expenses of the first defendant. While DW1 was cross-examined it was suggested that the said amount was paid through the first defendant's brother. However, there is no evidence regarding the same. Thus it could only be held that the total advance sale consideration R.F.A. No.794 of 2008 -: 6 :- paid by the plaintiff is ` 1,05,000/-

11. The defendant has challenged the readiness and willingness of the plaintiff to go ahead with the transaction alleging that the plaintiff did not have sufficient funds. Ext.A2 is the statement of plaintiff's bank account. As per Ext.A2, on 22.01.2007 which is the date of the last payment to the first defendant, the balance amount available in the account is only ` 2,073/-. After deducting the total advance of ` 1,05,000/- paid, a further amount of more than ` 1 lakh remained to be paid. Of course, the plaintiff need not carry money with him. However, this has some relevance in the background of absence of any demand from the side of the plaintiff for performance of the agreement during the period stipulated in the agreement. So also is the contention that it was consequent on the delay on the part of the plaintiff in paying off the liability with the Bank that the defendant cleared the R.F.A. No.794 of 2008 -: 7 :- same.

12. All these apart, the definite case of the plaintiff is that, out of the total sale consideration an amount of ` 1,44,000/- has been paid and that he is ready and willing to pay the balance sale consideration of ` 70,500/-. The suit has been filed expressing his readiness and willingness to pay the said amount and to get the sale deed executed. From the evidence it has been found that all that the plaintiff had paid was only an amount of ` 1,05,000/-. The readiness and willingness expressed by the plaintiff is for payment of the balance sale consideration as calculated by him and get the sale deed executed.

13. The trial court has, on analysis of the entire materials considered it appropriate to exercise its discretion not to grant a decree for specific performance but to order refund of the advance sale consideration. The exercise of discretion by the trial R.F.A. No.794 of 2008 -: 8 :- court cannot be considered to be perverse, warranting correction in appeal. The said finding is affirmed.

14. Now coming to the issue of refund of the advance consideration, it has been found that the advance sale consideration paid is ` 1,05,000/-. The same is liable to be repaid with interest. The amounts were paid on various dates. The amounts are to bear interest from the date of respective payments i.e. on ` 50,000/- from 15.07.2005, on ` 10,000/- from

20.10.2005, on ` 15,000/- from 11.11.2005, on ` 15,000/- from 17.11.2005, on ` 5,000/- from 29.03.2006 and on ` 10,000/- from 22.01.07. The trial court has allowed the plaintiff to recover the advance amount with interest at 12% per annum. Thus calculating interest, the total interest till the date of suit is ` 23,190/-, as follows :- R.F.A. No.794 of 2008 -: 9 :- Sl. 1 2 3 4 5 6 Calculation 50,000 x 2.14 x 12% 10,000 x 1.87 x 12% 15,000 x 1.81 x 12% 15,000 x 1.8 x 12% 10,000 x .62 x 12% 5,000 x 1.44 x 12% Total Interest (in ` ) 12840 2244 3258 3240 744 864 23190

15. The trial court has awarded costs to the 2nd defendant. The 2nd defendant is the wife of the 1st defendant and was impleaded being a subsequent assignee. The trial court was not justified in having ordered her costs. The same is liable to be set aside. Resultantly, the appeal is allowed in part. In modification of the decree and judgment of the trial court, the plaintiff is granted a decree for recovery of ` 1,28,190/- [` 1,05,000 + ` 23,190/- (interest)], with interest at 12% per annum from the date of suit till R.F.A. No.794 of 2008 -: 10 :- realisation from the first defendant and from the plaint scheduled property as a charge and by sale of it. The award of costs in favour of the second defendant is set aside. kns/- Sd/- SATHISH NINAN JUDGE //True Copy// P.S. to Judge