( 1 ) THIS is a suit for the specific performance of the agreement to sell dated 29th September, 1979 entered into between the parties whereby the defendant Shyam Dhawan agreed to sell his House No. E69 Tagore Garden, New Delhi, to the plaintiff for a total price of Rs. 1,55,000. 00 out of which a sum of Rs. 10,000. 00 was paid by the plaintiff to the defendant as earnest money which comprised the following amounts in the following manner: A) Cash amount of Rs. 1,000. 00 on 10th September, 1979; B) Cheque for Rs. 4,000. 00 dated 12th September, 1979; C) A Bank Draft for Rs. 5,000. 00. ( 2 ) UNDER the terms of this agreement to sell the defendant was to obtain the sale permission from the Delhi Development Authority (hereinafter to be referred to as the DDA ) he being the perpetual lessee of the plot underneath the house in question, as also income-tax clearance certificate, at his own cost and expense and then execute the sale deed and to have the same registered against the receipt of the balance sale price. The defendant was also bound to give vacant possession of the house in question to the plaintiff. ( 3 ) THE defendant sent an affidavit pro forma on 15th October, 1979 to the plaintiff requesting him to fill up the blanks therein and to return the same to the defendant after getting it attested from First Class Magistrate or Oath Commissioner or a Notary Public, as the defendant needed the same for obtaining sale permission from the DDA. and the plaintiff complied the next day. and the plaintiff complied the next day. ( 4 ) THE plaintiff continued waiting but was not informed by the defendant regarding his having obtained the sale permission and the income-tax clearance certificate and so wrote a letter dated 2nd January, 1980 to the defendant requesting him to get both these requirements done at an early date so as to facilitate the finalisation of the sale, but no reply was received by him to this letter and ultimately a notice dated 19th February, 1980 from the defendant through counsel Shri Basant Kumar Jaggi was received by the plaintiff wherein it was asserted that the defendant had been the victim of misrepresentation by the plaintiff in getting the agreement to sell in question executed from him inasmuch as the plaintiff had no funds to purchase the property in question, but this notice maintained silence about the defendant having moved the DDA. for the sale permission or in respect of having got the income-tax clearance certificate which two conditions were prerequisites for the finalisation of the sale. To this notice reply and rejoinder were exchanged which were further followed by some correspondence between the parties and in all his letters the defendant stuck on to his position assuming that the plaintiff had no money to purchase the property in question whereas he himself had not applied for the sale permission or for the income-tax clearance certificate, while the plaintiff repeatedly stated in the aforesaid correspondence and otherwise also that he had all along been and was still ready and willing to perform his part of the contract. of which fact the defendant had the notice. It is further asserted that under the agreement the defendant was to hand over vacant physical possession of the house in question which was admittedly in possession of a tenant and had not been got vacated by the defendant, and even though the house in question has fallen vacant and can be made over to the plaintiff in that state the defendant is to get the sale permission as also income-tax clearance certificate for the registration of the sale deed and the failure on the part of the defendant in this regard implies his refusal to sell the house in question to the plaintiff. ( 5 ) THE defendant while contesting the suit has asserted that he had been ready and willing to perform his part of the contract inasmuch as he had applied to the DDA. for the sale permission and had also got the house in suit vacated from the tenant (Steel Authority of India) and the same was lying vacant since 1st December, 1980, and the loss of rent is being incurred by him. He has asserted that as the plaintiff showed his unwillingness to finalise the sale in his favour for want of money the defendant later on wrote to the D. D. A. for the cancellation of his earlier application for the sale permission and under the circumstances no question arises for obtaining the income- tax clearance certificate. He emphasised that the plaintiff did not possess adequate funds to have the sale in question finalised in his favour. Regarding the affidavit referred to in the plaint and as already referred to above, it was denied that any affidavit pro forma was sent by him to the plaintiff on 15th October, 1979 or was returned by the plaintiff after having filled up the blanks therein as the plaintiff did not have sufficient funds to pay the balance price to the defendant to get the sale deed executed. He, thus, placed the entire blame on the plaintiff and justified his having forfeited the earnest money of Rs. 10,000. 00 and prayed for the dismissal of the suit with costs. ( 6 ) IN the replication, the pleadings in the written statement were denied and controverted by the plaintiff asserting that thedefendant without obtaining the sale permission and the income-tax clearance certificate and without getting the house in question vacated and even before 25th February, 1980, the date fixed in the agreement to sell, gave the notice dated 19th February, 1980 to the plaintiff indicting him with misrepresentation and fraud in obtaining the sale agreement from him and had presumed without justification that the plaintiff did not have the money for payment as the sale price even though the defendant himself had done nothing to sell the property and as a matter of fact it was the defendant himself who wanted to wriggle out of the contract for one reason or the other. It was further asserted that he was not required to have the means to purchase the property before 25th February, 1980buteven otherwise he was ready and willing and always had the resources to arrange the amount at a minute s notice. It was denied that the plaintiff was not ready and willing to perform his part of the contract. ( 7 ) REGARDING the vacation of the house in question, the plaintiff asserted that the agreement to sell dated 29th September, 1979 was cancelled by the defendant vide his notice dated 14h March, 1980 and whereby he forfeited the earnest money also and thereafter there was hardly any sense on the part of the defendant saying that he got the house in question vacated much later in December, 1980 in pursuance of the agreement to sell which had been cancelled by him much earlier vide notice dated 14th March, 1980. ( 8 ) FROM the pleadings of the parties, the following issues were framed: 1. Whether the plaintiff was always ready and willing to perform his part of the contract? ( 9 ) ISSUES Nos. 1 and 2: Ext. P-2 is the agreement to sell in question dated 29-9-1979 executed between the parties for the sale of the house in question owned by the defendant, in favour of the plaintiff and the perusal thereof shows that the defendant was to obtain sale permission for the sale of this house from the D D A. as also income-tax clearance certificate from the income-tax department, at his own cost and expense, and was also to give vacant possession of this house/property at the time of the registration of the sale deed in pursuance of this agreement to sell, on receipt of the balance price. It shows that the sale deed was to be executed by the defendant who had received earnest money of Rs. 10,000. 00in the following manner: (A) Rs. 1,000. 00 in cash on 10-9-79. (B) Rs. 4000. 00 by cheque No. PHARG/ca/ 74-A373241 on Bank of Baroda P/ganj dated 12-9-79 (C) Rs. 5000. 00 Draft No. PAHARG DD/76 A020883 on Bank of Baroda P/ganj. The total sale price agreed to in this agreement to sell was Rs. l,55,000. 00and thus the balance price to be paid by the plaintiff to the defendant was to the tune of Rs. 1,45,000. 00. 5000. 00 Draft No. PAHARG DD/76 A020883 on Bank of Baroda P/ganj. The total sale price agreed to in this agreement to sell was Rs. l,55,000. 00and thus the balance price to be paid by the plaintiff to the defendant was to the tune of Rs. 1,45,000. 00. Thus, under this agreement, by the time the balance price was to be paid by the plaintiff to the defendant and the sale deed registered, the defendant had to perform three obligations regarding the sale permission from DDA. income-tax clearance certificate from income-tax department and the vacant possession of the house in question which was in the possession of the Steel Authority of India as tenant of the defendant, and thereafter it was up-till 25-2- 1980 that the sale deed was to be executed and got registered by the defendant and the question of payment of the balance price of Rs. 1,45,000. 00by the plaintiff to the defendant was to arise after the aforesaid three obligations had been fulfilled by the defendant. ( 10 ) THE plea taken up by the defendant is that he had applied to the D D A. for obtaining the requisite sale permission but as the plaintiff was not in a position to arrange funds for the payment of the balance sale price of Rs. 1,45,000. 00, the earnest money was forfeited and the agreement to sell cancelled by the defendant, whereas, on the other hand, the position taken up by the plaintiff is that he has always been ready and willing to perform his part of the contract and was never in any financial stringency so as to incapacitate him from paying the balance sale price and further that the defendant had failed to perform his part of the contract inasmuch as he failed to obtain the requisite sale permission from the D. DA. and the income-tax clearance certificate as also vacant possession from his tenant. He has further asserted that the vacant possession of the house in question was obtained by the defendant from his tenant the Steel Authority of India not in pursuance of the agreement to sell in question but only on 1-12-1980 more than a year after the execution thereof as also months after 14-3-1980on which date the defendant cancelled the agreement to sell. ( 11 ) NOTICES/letters were exchanged between the parties emphasising their aforesaid respective positions. Ext. ( 11 ) NOTICES/letters were exchanged between the parties emphasising their aforesaid respective positions. Ext. P-6 is the letter dated 2-1-1980 sent by the plaintiff to the defendant reminding the latter that he was to obtain sale permission from D. D. A income-tax clearance certificate and other related documents for the execution of the sale deed as per the agreement to sell in question dated 29-9-1979, which he had promised to furnish to the plaintiff by 25-12-79 when he met him last but he had not received any of those documents. In this letter the defendant was requested to do the needful at the earliest as the period of sale was expiring on 25-2-1980 and it was hoped that the defendant would take up the matter immediately and deliver the necessary documents to the plaintiff well in time. Ext. P-5 is the postal receipt in respect of the aforesaid letter Ext. P-6. To this letter, it was deposed to by the plaintiff as P. W. I, no reply was received from the defendant. Ext. P-l and Exts. P7 to P9 are the notices received by the plaintiff from the defendant sent through counsel and Exts. P 11 to P13are the plaintiff s replies sent to the defendant through counsel. In all the aforesaid notices sent by the defendant to the plaintiff it has been asserted that the agreement to sell in question had been got executed by the plaintiff from the defendant by mis-representing dishonestly and fraudulently that plaintiff was keen to purchase the property in question at the earliest and that he had all the necessary funds available for paying off the price but, all these representations were false as the plaintiff did not have the necessary funds to pay the balance price. It was also asserted therein that the defendant had prepared the relevant drafts of the documents in question and handed over the same to the plaintiff on 15-11-1979 for his consideration and approval but the plaintiff had not finalised the relevant drafts and had been unjustly, improperly and illegally trying to back out of the aforesaid agreement to sell and had been, on the other hand, telling the defendant that he had not ready cash with him and would not be able to arrange for the payment of the balance price of Rs. 1,45,000. 00 for a period about 6 months which suggestion had. 1,45,000. 00 for a period about 6 months which suggestion had. been emphatically declined by the defendant. In the notice Ext. P-l dt. 19-2-1980 besides the aforesaid assertions the defendant gave the final warning to approve and finalise the relevant draft and arrange for the payment of the balance price of Rs. 1,45,000. 00 without any further delay failing which the earnest money of Rs. 10,000. 00 would stand forfeited. By means of Ext. P-7 dated 28-2-1980 the defendant besides repeating the aforesaid averments as also his right to forfeit the earnest money of Rs. 10,000. 00 gave one more chance to the plaintiff to comply with the requirements of the earlier notice Ext. P-l dated 19-2-1980. The further important thing to be noted in Ext. P-7 is that the defendant also called upon the plaintiff to produce a bank draft of the balance price of Rs. 1,45,000. 00 within a period of 10 days from the receipt of the said noticefailing which it was threatened that the earnest money of Rs. 10,000. 00 would stand forfeited. Then in the notice Ext. P8dated 14-3-1980 the defendant repeating the same allegations asserted that even the small amount of earnest money of Rs. 10,000/ -had been managed by the plaintiff with extreme difficulty as the same had been paid in three different instalments of Rs. 1,000. 00, Rs. 4,000. 00 and Rs. 5,000. 00 and further that he showed not only his incapacity to pay the balance price for a long period but also committed other breaches of the sale agreement and avoided all along to approve or amend the draft application and all that was done to make it impossible for the defendant to finalise the matter and to secure relevant approval and sanction for the sale from the D. D. A. and ultimately it was intimated in this notice that the earnest money of Rs. 10,000. 00 stood forfeited by the defendant. Ext. P 9 is the final registered notice A. D. dated 23-8-1980 sent by the defendant to the plaintiff intimating about the forefeiture of the sum of Rs. 10,000. 00having been effected by the defendant because of the persistent failure of the plaintiff to comply with the conditions precedent of the agreement to sell and the plaintiff was advised therein not to rush to a Court of law. 10,000. 00having been effected by the defendant because of the persistent failure of the plaintiff to comply with the conditions precedent of the agreement to sell and the plaintiff was advised therein not to rush to a Court of law. All these aforesaid notices had been sent by the defendant through Shri Basant Kumar Jaggi, Advocate. ( 12 ) EXT. P 11 to Ext. P13are the replies sent by the plaintiff through counsel Shri Nand Lal Chaudhary, Advocate to the defendant through Shri Basant Kumar Jaggi, Advocate wherein the contents and the assertions made by the defendant in his notices were denied as unwarranted and false to the knowledge of the defendant with an averment to the contrary that the plaintiff had always been ready and willing to perform his part of the contract which was to pay the balance amount of Rs. 1,45,000. 00 and calling upon the defendant to perform his part of the contract. It was also denied specifically by the plaintiff therein that he ever admitted that he could not arrange for the balance price or that he had ever told the defendant that he would take about 5 to 6 months to arrange for the same. It was also added therein that the plaintiff never committed any other breach of any terms of the contract or avoided to approve or amend the draft application asserting further to the contrary that in fact no such draft was ever given to him by the defendant. Blame was placed on the defendant for not performing his part of the contract and for having a dishonest intention for avoiding the sale agreement. Filing of the suit for specific performance of the contract was threatened in case the defendant failed to obtain the necessary sale permission to execute the sale deed in favour of the plaintiff. The allegations of mis-representation and fraud levelled by the defendants in his notices were also denied and controverted. Readiness and willingness to perform his part of the contract were asserted by the plaintiff. ( 13 ) THE letter dated 25-2-1980ext. P17by the defendant Shyam Lal Dhawan to the D D A. shows that he had applied to the D D A. for the sale permission in respect of the house in question on 19-10-1979 but had been asked by the DDA. to pay a sum of Rs. 390-05p. ( 13 ) THE letter dated 25-2-1980ext. P17by the defendant Shyam Lal Dhawan to the D D A. shows that he had applied to the D D A. for the sale permission in respect of the house in question on 19-10-1979 but had been asked by the DDA. to pay a sum of Rs. 390-05p. as penalty for belated construction in respect of that very house which claim was sought to be controverted by the defendant in his letter that he had obtained the completion certificate in respect of the said house long ago and there was thus no question of the imposition of any penalty for belated construction at that stage as no such charges were levied earlier. By means of letter dated 4-7-1980 Ext. P16 the DDA. had demanded of the defendant to submit four documents for the process of his case for sale permission within 15 days from the date of this letter. The defendant ultimately wrote the letter Ext. Dl dated 30-6-1980 to the DDA. for the cancellation of his request for the sale permission only on the ground that his family circumstances did not permit him to go in for the same and he solicited for an earlier action in the matter. By means of the letter Ext. P19dated 22-7-1980 the DDA. informed the defendant that his application for sale permission had been cancelled and he was further called upon to pay the aforesaid penalty amount of Rs. 390. 05p. within 15 days of the receipt of this letter. It is stated by Ram Dhan (DW 1) Legal Assistant of the DDA. in his cross-examination that the defendant did not pay the aforesaid penalty amount. ( 14 ) FOR the first time in his own testimony the defendant as DW 2 talked of the namkaran ceremony of his brother s son having taken place where he had invited the plaintiff for the function when he was requested to arrange for the balance price but he told the defendant when the other people had left that ceremony that it was not possible for him to arrange the balance price and he also wanted the extension of the sale period which was up-till 25-2-1980. In his cross-examination he stated that Suman Bala and his parents and brothers were also present there at that time and that Suman Bala was the colleague of his brother. In his cross-examination he stated that Suman Bala and his parents and brothers were also present there at that time and that Suman Bala was the colleague of his brother. According to him the namkaran ceremony had taken place on 9-2-1980 and that it was on that day for the first time that he learnt that the plaintiff was hot able to arrange the balance price within the stipulated period and that till then he was under the impression that the plaintiff was able to arrange for the balance price. The defendant has also examined Ms. Suman Bala in the witness box as DW 3 and she has also deposed to her presence on 9-2-1980 for two hours from 6. 00p. M. to 8. 00pm. on the day of namkaran ceremony of defendant s brother s son as defendant s brother happened to be her colleague. She stated that at about 8. 00 PM. on that day after the dinner there was a talk between the parties of this suit and therein the plaintiff Sant Lal wanted some more time for the payment of the balance price whereas the defendant told him to give the money in time. ( 15 ) AS already pointed out above the plaintiff, in his replies Exts. P11 to P13 to the notices of the defendant denied and controverted the allegations of the defendant that he was not in a position to arrange for the payment of balance price of Rs. 1,45,000. 00and that he never told that to the defendant. It would be seen that the version that on 9-2-1980 on the day of namkaran ceremony of the defendant s nephew the plaintiff had expressed his inability to pay the balance price and wanted some more time for that purpose, was an important one being specific in the sense that it had taken place, as admitted by the defendant himself, for the first time and that too at a specific occasion and ought to have been pleaded in the written statement and also ought. to have been put by way of a suggestion in the cross-examination of the plaintiff as also in the notices already referred to above sent by the defendant through counsel to the plaintiff after 9-2-1980on which date the namkaran ceremony had taken place, and the omission being quite significant goes to cast a serious doubt on the truthfulness of this version. When the defendant. had not obtained the requisite sale permission from the DDA the income-tax clearance certificate and the vacant possession of the house in suit from his tenant the Steel Authority of India all of which obligations had been cast upon the defendant under the agreement to sell in question, there was hardly any occasion for the defendant to ask the plaintiff regarding the arrangement of the payment of the balance sale price of Rs. l,45,000. 00by the plaintiff, nor wasthere any occasion for the plaintiff to tell the defendant regarding the same as the question of payment of balance price could arise only after the defendant had fulfilled his part of the contract by discharging the above mentioned three obligations and when the sale deed was to be executed and got registered by the defendant and not prior thereto. This , inference received further fortification from the persistent denials and assertions in the replies Exts. Pll to P13 sent by the plaintiff to the defendant in reply to his notices, wherein the allegations and assertions on the part of the defendant regarding the capacity of the plaintiff to pay the balance price had been doubted and which was vehemently controverted by the plaintiff. The mention by the defendant in his notices regarding relevant drafts of documents having been handed over to the plaintiff for his. consideration and approval and the plaintiff not having cared to finalise the same, looks totally imaginary and it is not understandable what drafts and what documents could possibly " be handed over by the defendant to the plaintiff for the approval by the latter. It could not be the draft of the sale deed as the demand for the same had not arrived inasmuch as the defendant had not discharged any one of the above mentioned three obligations cast upon him under the agreement to sell. It could not be the draft of the sale deed as the demand for the same had not arrived inasmuch as the defendant had not discharged any one of the above mentioned three obligations cast upon him under the agreement to sell. It was stated by the defendant as D. W. 2 that on 15-10-1979 he had sent a pro forma of an affidavit to the plaintiff to be filled up by him without delay and within four days the plaintiff returned that affidavit to him after filling up the blanks therein whereupon he submitted that affidavit of the plaintiff along with an application to the DDA praying for the grant of the sale permission at the earliest. In his testimony he has not talked of any draft of any other document having been sent by him to the plaintiff for his approval and that omission conclusively belies the aforesaid assertions in the notices of the defendant sent to the plaintiff. In para 4 of the plaint the plaintiff had asserted that the defendant had sent him a typed affidavit on a stamp paper of Rs. 2. 00requesting him to fill in the blanks therein and to send back the same to him after getting the same attested by a First Class Magistrate or Oath Commissioner or a Notary Public as the same was needed by the defendants for obtaining the sale permission, and the plaintiff doing the needful sent the same back to the defendant on the next day but all this averment was denied in toto by the defendant including the factum of his having sent any such pro forma affidavit to the plaintiff in the corresponding para 4 of the written statement. But, as seen above, the defendant admitted this averment in his testimony-in-chief as DW 2 and in his cross-examination he was confronted with the above mentioned specific portions of the written statement wherein he had denied those averments. This instance also renders the testimony of the defendant questionable. It is also a matter worthy of note that even in his letter Ext. This instance also renders the testimony of the defendant questionable. It is also a matter worthy of note that even in his letter Ext. D 1 dated 30-6-1980 sent to the DDA for the cancellation of the request for the sale permission the defendant had stated the ground for the cancellation of his request that his family circumstances did not permit him to go in for the same and there was no mention of the ground for the intending vendor that the plaintiff was not in a poisition to arrange for the balance price. Furthermore, in his notice Ext. P7 dated 28-2-1980 the re was hardly any occasion for the defendant to call upon the plaintiff to produce a bank draft of the balance price of Rs. 1,45,000. 00 within a period of 10 days from the receipt of the said notice failing which forfeiture of the earnest money of Rs. 10,000. 00was threatened, when none of the three obligations undertaken by the defendant had been discharged by him as the question of the payment of the balance price could, under the agreement to sell arise only after the performance of all the three obligations by the defendant and that too at the time of the execution and the registration of the sale deed by the defendant. As none of the three obligations referred to above and cast upon the defendant under the agreement to sell in question, have been discharged by the defendant, it is to be held that the defendant has not performed his part of the contract. ( 16 ) EVEN after finding and holding that the defendant had failed to perform his part of the contract inasmuch as he had failed to discharge the aforesaid three obligations cast upon him under the agreement to sell, the plaintiff, in order to succeed in this suit for specific performance, has to aver and prove that he has always been ready and willing to perform the essential terms of the contract which are to be performed by him and this is the requirement of S. 16 (c) of the Specific Relief Act, 1963. In other words, the aforesaid requirement of law has to be proved by the plaintiff notwithstanding the aforesaid default on the part of the defendant in respect of the performance of the obligations cast upon him. In other words, the aforesaid requirement of law has to be proved by the plaintiff notwithstanding the aforesaid default on the part of the defendant in respect of the performance of the obligations cast upon him. The averments of continuous readiness and willingness to perform the essential terms of the contract in question are set out in the plaint and now the only question to be answered and which forms the subject-matter of issue No. 1 is the continuous readiness and willingness on the part of the plaintiff to perform his part of the contract and the only essential term of the contract to be performed by the plaintiff is the payment of the balance price at the time of the execution and the registration of the sale deed by the defendant. The question of payment of balance price could occur only after the defendant had got the sale permission from the D D A. as also the income-tax clearance certificate and the vacant possession of the house in question from his tenant. The stage of the payment of the balance price never arose in mis case on account of the failure on the part of the defendant in the matter of performance of his part of the contract. The requirement of law is simply the continuous readiness and willingness on the part of the plaintiff to perform his part of the contract throughout from the commencement of the agreement to sell till the hearing of the suit but that does not mean that the plaintiff was expected to carry on the cash balance price of Rs. 1,45. 000. 00 in his pocket during all the aforesaid period, but what he was to show was simply his continuous readiness and willingness to pay that balance price only as and when the appropriate occasion for the same was to arise. The expression "readiness and willingness cannot be treated as a strait jacket formula and has to be determined from the totality of facts and circumstances relevant to me case and also to the conduct of me party concerned and in order to be real has to be backed by the capacity to do so. ( 17 ) IN dealing with the conduct of me plaintiff one has to look to the replies Exts. P 11 to P 13 sent by me plaintiff to the various notices of the defendant. In Ext. ( 17 ) IN dealing with the conduct of me plaintiff one has to look to the replies Exts. P 11 to P 13 sent by me plaintiff to the various notices of the defendant. In Ext. P11 dated 10-3-1980 and Ext. P12 dated 9-4-1980 the plaintiff not only denied the allegations of the defendant doubting the financial capacity of the plaintiff to pay the balance price of Rs. 1. 45. 000. 00 but further asserted his being in possession of ready money to purchase the property and to fulfil his part of the con tract and further called upon the defendant to perform his part of the contract and to get the necessary sale permission so that the sale deed could be executed. Finally he also threatened the defendant to file a suit in case the defendant defaulted to comply with the same. Similarly the plaintiff further threatened the defendant to bring legal proceedings against him for specfic performance of the contract in case he failed to inform him within a week of the receipt of the same that he had already applied for the grant of sale permission and was ready and willing to perform his part of the contract and to execute the sale deed in his favour. It would be also seen that the plaintiff gave in these notices only 7 days time to the defendant to obtain the sale permission from the DDA and not unreasonably long time so as to evince an intention on the part of the plaintiff that he was trying to dodge the defendant and was not interested in the finalisation of the sale transaction. On the other hand, the above mentioned assertions and denials on the part of the plaintiff in Ext. Pll to Ext. P13 go to show his keenness for the finalisation of the sale. The plaintiff s having immediately returned the affidavit sent to him by the defendant for obtaining sale permission from DDA. On the other hand, the above mentioned assertions and denials on the part of the plaintiff in Ext. Pll to Ext. P13 go to show his keenness for the finalisation of the sale. The plaintiff s having immediately returned the affidavit sent to him by the defendant for obtaining sale permission from DDA. , after completing the same still goes to strengthen the aforesaid inference in favour of the plaintiff, notwithstanding the aforesaid assertions on the part of the plaintiff the defendant, under a lame excuse, as already pointed out above, withdrew his application for the grant of sale permission from the D. D. A. The story about the plaintiff having expressed his incapacity to pay the balance sale price on the namkaran ceremony of the defendant s nephew and wanting a further period of about six months to enable him to arrange the same, has already been found to be dubious especially when there was no occasion for the same in view of the defendant not having performed his part of the contract. ( 18 ) THE testimony of the plaintiff as Public Witness 1 shows that he was prepared to pay the entire balance price agreed upon even at the time of the execution of the agreement to sell Ext. P2 and since then up-till now he had been prepared to pay the same. The authenticity of this assertion in his testimony finds full support from the fact that he had actually brought in Court a sum of Rs. 1,60,000. 00 and was prepared to pay it to the defendant at that time and this cash amount he had brought in Court even on the previous date of hearing, as stated, by him in his cross-examination which was not challenged. His cross-examination shows that up-till 25-2-1980 there was a sum of Rs. 70,000. 00 belonging to him in his firm M/s. Lakshmi Paper Mart and another sum of Rs. 11,000. 00 in his wife s name in that very firm and further that he had jewellery also at his house. He has further deposed that approximately a sum of Rs. 75,000. 00 was lying in the said firm in his name on 29-9-1979, the date of the agreement to sell in question. 11,000. 00 in his wife s name in that very firm and further that he had jewellery also at his house. He has further deposed that approximately a sum of Rs. 75,000. 00 was lying in the said firm in his name on 29-9-1979, the date of the agreement to sell in question. He further goes on to say that the aforesaid amounts in his name as also in the name of his wife in the said firm were continuing and the amount in his name must have swollen to Rs. 80,000. 00 approximately. Regarding the cash amount of Rs. 1,60,000. 00 having been brought by him in Court during the course of his testimony he stated that he had brought this cash amount from his aforesaid firm and his brothers. The aforesaid facts would certainly go to prove the continuous readiness and willingness on the part of the plaintiff to perform his part of the contract, i. e. , the payment of the balance price at the appropriate. time as and when it could come about and the contention of the learned counsel for the defendant that the plaintiff had not brought the account books of his firm nor the incometax return for the year 1979-80 and for which reason his aforesaid testimony ought not to be believed, cannot be accepted. The plaintiff was bold enough to assert in his crossexamination that he sent his income-tax returns every year and that the income-tax return for the year 1979-80 included his aforesaid deposits. The agreement to sell was executed on 29-9-1979 and the plaintiff stated that on that day a sum of Rs 75,000. 00 approximately would be lying in his aforesaid firm in his name. He conceded that he had not brought the books of account pertaining to that day but hastened to assert that if it was sought he would bring the same also, and thereafter the defendant did not muster courage to request for the production of the same in Court by the plaintiff. His bringing in Court a cash amount of Rs. 1,60,000. His bringing in Court a cash amount of Rs. 1,60,000. 00 is convincingly sufficient to dispel the contentions of the learned counsel for the defendant regarding the continuous readiness and willingness on the part of the plaintiff to perform his part of the contract regarding his ability to pay the balance price at the appropriate time as and when it could come and this inference is fortified from the plaintiff s conduct asserted in his notices Exts. P 11 to P 13 also referred to above. It could not be difficult for him to arrange the money from his said firm and his brother. However, he was under no obligation to show the cash amount or a bank draft in the sum of Rs. 1,45,000. 00 to the defendant who had failed to perform his part of the contract and that demand on the part of the defendant in his notices sent to the plaintiff was unwarranted and totally premature. ( 19 ) THE conclusion about the plaintiff having been always ready and willing to perform his part of the contract in respect of the payment of the balance price is supported on a number of authorities. In Bank of India Ltd. v. Jamsetji A. H. Chinoy and M/s. Chinoy and Co. , AIR 1950 PC 90 (at p. 96) it was observed as follows: ". . . . . . . . . It is true that plaintiff 1 stated that he was buying for himself, that he had not sufficient ready money to meet the price and that no definite arrangements had been made for finding it at the time of repudiation. But in order to prove himself ready and willing a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction. The question is one of fact and in the present case the appellate Court had ample material on which to found the view it reached. ". Their Lordships of the Privy Council then added to concur with Chagla A. C. J. whose observations run as under: "in my opinion, on the evidence already on record it was sufficient for the Court to come to the conclusion that plaintiff 1 was ready and willing to perform his part of the contract. ". Their Lordships of the Privy Council then added to concur with Chagla A. C. J. whose observations run as under: "in my opinion, on the evidence already on record it was sufficient for the Court to come to the conclusion that plaintiff 1 was ready and willing to perform his part of the contract. It was not necessary for him to work out actual figures and satisfy the Court what specific amount a bank would have advanced on the mortgage of his property and the pledge of these shares. I do not think that any jury if the matter was left to the jury in England would have come to the conclusion that a man, in the position in which the plaintiff was, was not ready and willing to pay the purchase price of the shares which he had bought from defendants 1 and 2. " ( 20 ) IN Ramesh Chandra Chandiok v. Lal Sabharwal, (dead) by his legal representatives, AIR 1971 SC 1238 a agreed to purchase on 18-7-1955 from R a leasehold plot and which receipt for earnest money provided that the balance of consideration was to be paid within a month at the time of the execution of the registered sale deed which one of the conditions of the leasehold which was executed subsequently by the Government in Rs favour only on 21-5-1956 was that the lessee was required to obtain sanction of the Government before transfer of the lease hold plot. R informed A by letter dated 11-8-1955 that the sale deed would be executed by him only after required sanction and further undertook to inform A as soon as the sanction was obtained. R, however, never took any steps till 11-11-1956 to apply for sanction but on the other hand informed A that he was not willing to wait indefinitely for want of sanction and that if the rest of the consideration was not paid within a week, the earnest money would be forfeited and the agreement cancelled. Even though R applied for and obtained the required sanction on 20-11-1956, he did not inform A about it and cancelled the contract. On 4-12-1956 A filed a suit for specific performance after inquirying himself from the Government about the giving of sanction. It was observed as follows: ". . . . Even though R applied for and obtained the required sanction on 20-11-1956, he did not inform A about it and cancelled the contract. On 4-12-1956 A filed a suit for specific performance after inquirying himself from the Government about the giving of sanction. It was observed as follows: ". . . . BE that as it may R could not call upon A to complete the sale and pay the balance money until the undertaking given in Exhibit P-7 dated 11-8-1955 (regarding sanction) had been fulfilled by R. The sanction was given in November 1956 and even then R did not inform A about it so as to enable A to perform its part of the agreement of sale. . . . . . . . . . "it was also held as follows: "on the facts and circumstances of the case A must be held to be ready and willing to perform his part of the contract till dateof suit and was therefore entitled to a decree for specific performance. Readiness and willingness cannot be treated as a strait-jacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. There was no material on record to show that A at any stage was not ready and willing to perform his part of contract or that he did not have the necessary funds for payment when the sale deed would be executed after the sanction was obtained. . . . . . . . . " ( 21 ) IN Narayaaswami Pillai v. Dhanakoti Ammal, AIR 1967 Mad 220 (at p. 222) it was held as follows: "in my view when time is provided for performance, readiness and willingness on the part of the person seeking performance can only mean that on his part he was throughout the period kept the contract as a subsisting one with a preparedness to fulfil his obligations and accept performance when the time came. This does not mean that the purchase should besides show that he had command of the necessary finance throughout the life of the contract. Such an instance will make the fixing of a time for performance meaningless. This does not mean that the purchase should besides show that he had command of the necessary finance throughout the life of the contract. Such an instance will make the fixing of a time for performance meaningless. " ( 22 ) IN Subeyya Chowdary v. Veeraya,air 1957andh Pra 307 there appeared difference of opinion between the two Judges and the matter was then referred to third Judge, Chandra Reddi, J. who in his judgment after taking note of the case law on the subject as also The Bank of India Ltd. s case, (AIR 1950 PC 90) (supra) observed as follows: "these passages clearly indicate that the purchaser need not establish that he had the required money with him or arrangements have been made for financing the transaction. What is required of him is to show that he was ready and willing to fulfil his terms of the agreement. . . . . . . . . " ( 23 ) IN Ganesh Prasad v. Saraswati Devi, AIR 1982 All 47 the following observations appearing at P. 51 are relevant: ". . . . . . . . . . THE words ready and willing are to my mind simple words and all that they mean is that a plaintiff, in order to succeed in a suit for specific performance must aver and prove that he has performed or has throughout been prepared to do his part under the contract, that preparedness may not. howevr, be mere verbal show of readiness to do his part. It should be backed by the means to perform his part of the contract when called upon to do so. The plaintiff does not have in such a case to go about jingling money to demonstrate his capacity to pay the purchase price, all that the plaintiff has to do in such a situation is to be really willing to purchase the property when the time for doing so comes and to have the means to arrange for payment of the consideration payable by him. . . . . . . . . . " ( 24 ) IN that case it was also observed that the fact that the notices were served by the first plaintiff followed by the suit is sufficient proof of the plaintiff s willingness to purchase the property. . . . . . . . . . " ( 24 ) IN that case it was also observed that the fact that the notices were served by the first plaintiff followed by the suit is sufficient proof of the plaintiff s willingness to purchase the property. Even though suit therein was filed in forma pauperis but it was held that that factor would not warrant inference of absence of readiness and willingness on the part of the plaintiff to perform his part of the contract and that the plaintiff s statement while seeking permission to file the suit for forma pauperis that she did not have the means to pay the Court-fees could under the circumstances be ignored as she did pay the Court fees soon thereafter and well before the expiry of 5 year s period for the re-conveyance. ( 25 ) IN Shafiq Ahmad v. Smt. Sayeedan, AIR 1984 All 140 the plaintiff gave notice under registered cover to the defendant requiring him to execute the sale on acceptance of Rs. 2,000. 00 as consideration. The notice given by the defendant was also duly replied by the plaintiff followed by another notice and all along the plaintiff offered the sum of Rs. 2. 000. 00 and expressed their preparedness to take the sale on the date when the defendant might come over to the office of the Sub-Registrar. In another suit the plaintiffs averred that they would have arranged for the aforesaid sum of Rs. 2,000. 00 on taking loan from someone else. It was contended that the plaintiffs were not possessed of that ready money to take the sale. That contention was rejected for the reason that it was settled law that the plaintiffs did not have to establish that they had with them all the time ready the amount of the sale consideration. It was further observed (hat there being nothing to suggest that the plaintiffs were not in a position to raise this amount of Rs. 2,000. 00 upon the resale being made, the readiness and willingness on their part was not adversely affected. ( 26 ) IN Nathulal v. Phoolchand, AIR 1970 SC 546 the following observations appear at pages 548 and 549: ". . . . . . . . . 2,000. 00 upon the resale being made, the readiness and willingness on their part was not adversely affected. ( 26 ) IN Nathulal v. Phoolchand, AIR 1970 SC 546 the following observations appear at pages 548 and 549: ". . . . . . . . . IF, therefore, under the terms of the contract the obligations of the parties have to be performed in a certain sequence, one of the parties to the contract cannot require compliance with the obligations by the other party without in the first instance performing his own part of the contract which in the sequence of obligations is performable by him earlier. In view of the arrangement made by Phoolchand it was clear that he had at all relevant times made necessary arrangements for paying the amount due, but so long as Nathulal did not carry out his part of the contract, Phoolchand could not be called upon to pay the balance of the price. It must therefore be held that Phoolchand was at all relevant time willing to carry out his part of the contract. " ( 27 ) THE learned counsel for the defendant, however, relied upon Rakha Singh v. Santokha, AIR 1976 Him Pra 66 in which it is held that readiness and willingness to perform includes ability to perform and the buyer has to prove either such willingness or his capacity to pay for the property and proper preparation by him for securing the purchase money. There is not much of substantial difference between the dictum of this authority and what has been consistenly laid down in the authorities already referred to above. In this authority the vendee had been postponing the sale from one date to another, never fulfilled his offer to pay part of the sale purchase, was short of money and was selling his land to raise money to meet the sale consideration and it was on those tacts that it was held that it was clear that he was not ready and willing to perform his part of the contract at any relevant time and was, thus, held disentitled to specific performance of the contract. The facts of that case do not find even a semblance of their peculiarity in the case in hand inasmuch as the plaintiff always expressed his readiness and willingness to purchase the property in question after the defendant discharged his obligations and never did he evince any intention to postpone sale and was on the other hand very eager to finalise the sale transaction for which purpose he even threatened without the defendant to obtain the necessary sale permission from the D. D. A. at the earliest and to inform him about the sale. The facts brought out from the evidence on the records of the case point out that the plaintiff was always ready and willing to perform his part of the contract from the date of the contract till the date of the hearing of the suit and that he was always in a position to pay the balance price as and when it was to be paid and the question of payment thereof could not arise until the defendant had performed his part of the contract which the defendant never did. It would also be noted that the vacant possession of the house in question was obtained by the defendant from his tenant, the Steel Authority of India not in pursuance of the agreement to sell in question but much later on December 1, 1980 after he had cancelled the agreement to sell much earlier vide his notice dated 14-3-1980 and the giving of vacant possession of the house was also a condition precedent to be performed by the defendant before the execution and registration of the sale deed. ( 28 ) CLAUSE (c) of S. 16 of the Specific Relief Act, 1963 is a new pro vision which incorporates the principles laid down by case law that in a suit for specific performance, plaintiff must show that all conditions precedent have been fulfilled and also allege and prove a continuous readiness and willingness to perform the contract on his part from the date of the contract to the time of hearing of the suit and, thus, it can be no valid argument that, the case law deciding cases prior to this amendment do not hold good after the amendment which inserted Cl. (c)ofs. 16. (c)ofs. 16. ( 29 ) THUS, in view of the aforesaid discussions, I hold that the plaintiff has always been ready and willing to perform his part of the contract and the defendant had failed to perform his part of the contract, and both these issues are decided in favour of the plaintiff and against the defendant. ( 30 ) ISSUE No. 3 (Relief): In view of my findings in issues 1 and 2, I pass a decree for the specific performance of the agreement of sale in question dated 29-9-1979 with costs in favour of the plaintiff and against the defendant and the defendant is directed to do all acts necessary, viz. , (i) to obtain the sale permission from the D D A. (ii) to obtain the income-tax clearance certificate and (iii) to put the plaintiff into full actual physical possession of the house in question. These conditions be satisfied by the defendant within three months from today and thereafter the sale deed be executed and got registered by him within one month thereafter on receipt of the balance sale price from the plaintiff.