C. N. RANGANATH v. M. R. THYAGARAJA — 1996 DIGILAW 368 (KAR)

H. N. NARAYAN, J. ( 1 ) AGREEMENT of sale dated 10-6-1991 alleging that the defendant is the owner in possession of the suit house, and agreed to sell the same for consideration of Rs. 1,40,000/- and executed the deed of agreement dated 10-6-1991 Ex. P-1. Defendant received an advance of Rs. 30,000/- on the date of agreement agreeing to receiver the balance of consideration within three months from the date of agreement and to execute the sale deed. But the defendant failed to execute the sale deed in spite of repeated requests. The defendant according to plaintiff failed to perform his part of the contract even though the plaintiff was always ready and willing to perform his part of the contract. Hence the suit for specific performance. ( 2 ) DEFENDANT has not disputed execution of the agreement Ex. P-1 and the advance of Rs. 30,000/ -. He has also not disputed that he had agreed to receive the balance of Rs. 1,01,000/- within three months from the date of the said agreement, and to execute the sale deed. But his contention is that the plaintiff was never willing and ready to perform his part of the contract as he had no money. According to him plaintiff has failed to report his readiness to get the property registered with all expenses. He committed default in not issuing any notice to him intimating his readiness to take the sale deed. ( 3 ) FROM the above pleadings the Trial Court framed the following issues: (i) Whether the plaintiff has shown that he was ready and willing to perform his part of the contract. (ii) Whether the plaintiff is entitled to the relief sought for. (iii) What order. ( 4 ) IN proof of the said claim, plaintiff tendered evidence as P. W. 1 and relied on the evidence of two more witnesses viz. , chinnaswamy-P. W. 2 and Muniswamy-P. W. 3. The defendant is examined as D. W. 1. Suit document is marked on behalf of both the parties. The agreement is marked as Ex. P-l. No other document is relied upon by the parties. , chinnaswamy-P. W. 2 and Muniswamy-P. W. 3. The defendant is examined as D. W. 1. Suit document is marked on behalf of both the parties. The agreement is marked as Ex. P-l. No other document is relied upon by the parties. The Trial Court was not persuaded to accept the defence that the plaintiff was not ready and willing to perform his part of the contract and that the plaintiff had no money to perform the contract and that the time was not the essence of the contract and therefore decreed the suit as prayed for, and directed the defendant to execute the sale deed within two months from the date of the decree and put the plaintiff in possession Of the suit property. This appeal is against the judgment and decree of specific performance granted in favour of the plaintiff. I have heard the learned Advocates at length. ( 5 ) SRI C. S. Krishnamurthy, learned Counsel for the appellant submitted that the suit is premature as the same was filed on 9-9-1991 a day before the expiry of three months. According to him the suit should have been filed on 10-9-1991. His second submission is that the pleadings of the plaintiff is not in conformity with Section 16 (c) of the Specific Relief Act, and forms 47 and 48 of the I Schedule to Civil Procedure Code. He further submits that the plaintiff has failed to show his readiness and willingness to perform his part of the contract and the evidence on record discloses that he had no money at all to perform the contract. His third submission is that the tenor of the agreement Ex. P-l clearly shows that time is the essence of the contract even though the contract is in respect of immovable property which fact is not considered by the Court. His fourth submission is that the defendant was in a disadvantageous position and the Trial Court has not considered this aspect and also the provisions of Section 20 of the Specific Relief Act while granting a decree for Specific performance. He submits that the trial Court clearly fell into error in granting a decree for specific performance without considering these facts. The findings of the trial Judge is not based on evidence led in by the parties. He therefore prays for setting aside the judgment and decree passed by the Trial Court. He submits that the trial Court clearly fell into error in granting a decree for specific performance without considering these facts. The findings of the trial Judge is not based on evidence led in by the parties. He therefore prays for setting aside the judgment and decree passed by the Trial Court. ( 6 ) SRI H. N. Nagamohandas, learned Counsel for the respondent disputing these contentions justified the judgment of the Trial Court. In the light of these contentions the points that arise for consideration in this appeal are: (i) Whether the suit is premature. (ii) Whether time is the essence of contract. (iii) Whether plaintiff was ready and willing to perform his part of the contract. (iv) Whether the judgment and decree granted by the trial Court is justifiable in law. ( 7 ) RE. Point 1 :parties have not disputed the execution of suit agreement Ex. P-1 and the contents there in. There is a specific term in the agreement wherein the parties agreed to conclude the contract within three months. The plaintiff agreed to hand over the balance of consideration within three months from the date of agreement and to request the defendant to execute the sale deed. The last day falls on 10-9-1991 for the parties to conclude the contract as agreed upon. However, the plaintiff presented the suit in the Court below on 9-9-1991 a day before the 90th day if we can say so. The contention of the defendant appears to be that the plaintiff ought to have issued notice before filing a suit in a competent Court and in the absence of such notice to him the suit filed by the plaintiff is premature. It is alternatively canvassed by the learned Counsel for the appellant that the time is the essence of contract, and that the plaintiff ought to have taken the sale deed within three months as agreed upon. ( 8 ) RELIANCE is placed by the learned Counsel for the defendant to dispute this proposition on the decision rendered by the allahabad High Court in Malkhan Singh v Raghubir Singh. It is held in that case as follows:"in regard to this question there was no plea in the written statement nor any issue for any argument either before the Trial Court or the Appellate Court or nor any ground was taken before this Court. It is held in that case as follows:"in regard to this question there was no plea in the written statement nor any issue for any argument either before the Trial Court or the Appellate Court or nor any ground was taken before this Court. The only argument made out is that the appellant should have executed the sale deed by 4-6-1971 and since the suit was filed on 2-6-1971 the suit was premature. This argument is fallacious. In the agreement the appellant agreed to execute the sale deed by 4-6-1971. On 6-5-1971 a notice was sent to the appellant to execute the sale deed by virtue of an agreement dated 5-9-1970. As this notice was not accepted by the appellant and the appellant was served by refusal, the case of the appellant throughout has been that he had not executed the agreement at all. In the circumstances the suit cannot be stated to be premature as it was filed after the appellant had clearly refused to execute the sale deed in favour of the plaintiff-respondent. In the circumstances I do not find that the suit is premature". On perusal of the defence taken by the defendant in this suit I find no whisper regarding this aspect. It is true that the plaintiff has not issued or served notice calling upon the defendant to execute the sale deed. Nevertheless non-issue of notice is in my opinion not fatal, having regard to the facts and circumstances of the case and therefore, I do not find any merit in the contention that suit itself is premature and ought to have been filed on the next day. I therefore answer Point 1 in the negative. ( 9 ) RE. Point 2 :the proposition that the time is not the essence of contract in case of immovable property is not in dispute. However, it is contended by the learned Counsel for the appellant that time being the essence of contract is a matter of the intention of the parties to the contract evidenced by express stipulations or by circumstances which are sufficiently strong to rebut ordinary presumption in a contract of sale of land stipulation of time is not of essence. It is recited in Ex. It is recited in Ex. P-l the agreement as follows: Relying upon this recital the learned Counsel for the appellant submits that not only the time is made essence of the agreement but the parties have agreed to the forfeiture clause viz. , forfeiture of the advance in the event of default to pay over the balance of Rs. 1,01,000/- and to take the sale deed within the time stipulated therein. ( 10 ) THE question whether the time is the essence of contract of immovable properties came up for consideration before the division Bench of this Court in Saraswathi Ammal v V. C. Lingam and Another. It is held in that case as follows:"as to the time being the essence of contract, is a matter of intention of the parties to a contract, evidenced by express stipulation or by circumstances which are sufficiently strong to displace ordinary presumption in a contract for sale of land stipulation of time is not of essence; however by a proper notice one of the parties may notify the other making time essence of contract subsequently". The Division Bench has also relied upon with approval the decision of the Delhi High Court in the case of Smt. Raj Rani Bhasin and Others v S. Kartar Singh Mehta, where the Delhi High court has observed as follows:"it is true that the presumption that in a contract of sale of immovable property time is not essence of contract. A mere stipulation of date before which a sale deed was to be executed and the stipulation that the earnest money would be forfeited if the date was not adhered to also would not necessarily make the time the essence of the contract. But the sellers were entitled to make the time the essence of the contract by specifically giving a notice, if the purchasers was found to be delaying the purpose of the contract". This question again came up for consideration in E. S. Rajan v r. Mohan. The Division Bench has stated as follows:"a plain reading of the provision (Section 55) makes it clear that mere fixing of a time period for purpose of contract or the delay of a certain thing does not by itself make time the essence of the contract. What is important is that the parties intended to make time the essence of the contract. What is important is that the parties intended to make time the essence of the contract. It is only if they so intended that the non-performance of the contract, makes the same viable at the option of the promisee and not otherwise. The intention to make time the essence of the contract is therefore to be absolutely clear and unmistakable. In other words the language implied in the contract should be leading to the only conclusion, viz. , that time for performance fixed by the parties was not a matter of secondary importance in the bargain, and that to disregard the same is to disregard the intention that lay at its foundation". ( 11 ) IN the light of the clear dicta of the Apex Court there is no initial presumption that "time is the essence of the Contract", in cases involving sale of immovable property. This presumption can be displaced only if the intention of the parties covered by the stipulations contained and language implied in the agreement to sell manifestly suggests that the parties had intended to make time as the essence of the contract. It is well-settled that the mere fixation of a specific period by the parties in the agreement to sell for the completion of sale transaction does not in itself amount to making time the essence of the contract. ( 12 ) HERE is a case where the parties to the agreement kept quiet to the last day of the expiry of three months. Admittedly, in this case parties have not exchanged notices, either of them calling upon the other to perform the contract as agreed upon within the stipulated period. But parties were aware of the main stipulation in the agreement. The defendant who had received the advance of Rs. 30,000/- was happy with the forfeiture clause in the agreement. The plaintiff was aware of this forfeiture clause. It is argued by the learned Counsel for the appellant that the very fact that the plaintiff rushed to the Court just a day before the appointed day clearly shows that plaintiff was aware that the time was the essence of the contract. Plaintiff who slept over the agreement till the last day perhaps was advised to rushed to the Court only to wriggle out of the forfeiture clause in the agreement. Plaintiff who slept over the agreement till the last day perhaps was advised to rushed to the Court only to wriggle out of the forfeiture clause in the agreement. Otherwise there was no reason for him to rush to the Court a day before the period of three months stipulated in the agreement. Whether the oral evidence of the parties in proof of demand is sufficient is the other matter which will be considered at a later stage. This circumstances manifestly suggests that the time was the essence of contract. I therefore, answer Point 2 ir. the affirmative. ( 13 ) RE. Point 3:in a suit for specific performance, the plaintiff is required in law to plead and prove his readiness and willingness to perform his part of the contract. The learned Counsel for the appellant submitted that the plaint presented by the plaintiff both in content and form does not confirm to Section 16 (c) of the Specific Relief Act, 1963 and Forms 47 and 48 of the I schedule in the Civil Procedure Code. Reliance is placed by the learned Counsel to the decision of this court in the case of gurupadayya v Shivappa. His Lordship K. Jagannatha Setty, j. (as he then was), in the aforesaid case at para 2 has stated as follows:"the pleadings and proof in any suit for specific performance should be in confirmity with the provisions of section 16 (c) and Forms 47 and 48 of the I Schedule in the civil Procedure Code. If these requirements are not complied with, the plaintiff is not entitled to a decree for specific performance. ( 14 ) SECTION 16 (c) of the Specific Relief Act, 1963 provides:"16. Specific performance of a contract cannot be enforced in favour of a person, (a ). . . . . . (b ). . . . . . (c) Who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms, the performance of which has been prevented or waived by the defendant. Explanation. . . . . (b ). . . . . . (c) Who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms, the performance of which has been prevented or waived by the defendant. Explanation. For the purposes of clause (c), (i) Where a contract involved the payment of money, it is not essential for the plaintiff to actually tender t6 the defendant or to deposit in Court any money except when so directed by the Court; (ii) The plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction". ( 15 ) THE Supreme Court in Ouseph Varghese v Joseph Aley and Others, at page 543, observed as follows:"a suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the I schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part pf the agreement". ( 16 ) THEREFORE, sub-section (c) to Section 16 of the Act, makes it obligatory on the part of the plaintiff to aver and also to prove that he has performed or is always ready and willing to perform the essential terms of the contract, which are to be performed by him. The observation of the Supreme Court in Ouseph Varghese case, supra, were based on Forms 47 and 48 given in I Schedule in the Code of Civil Procedure, plaintiff has to aver the following in accordance with Form 47: (a) The plaintiff has applied to the defendant specifically to perform the agreement on his part, but defendant has not done so. (b) The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice. Form 48 requires the plaintiff to further state the following: (a) On the. . . (b) The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice. Form 48 requires the plaintiff to further state the following: (a) On the. . . . day of. . . . 19. . , the plaintiff tendered rs. . . . . to the defendant and demanded a transfer of the property by a sufficient instrument. (b) On the. . . . day of. . . . 19. . , the plaintiff again demanded such transfer (or the defendant refused to transfer the same to the plaintiff ). (c) The plaintiff is still ready and willing to pay the purchase money of the said property to the defendant. ( 17 ) AT the end of para 5 of the plaint, the plaintiff has averred as follows:"though the plaintiff was always ready to perform his part of the contract in respect of the sale agreement". ( 18 ) AT para 6 it is averred as follows:"the plaintiff is ready to deposit the amount in Court to be paid to the defendant at any time or as per the directions of the Court". ( 19 ) AT para 7 it is averred as follows:"the plaintiff was always ready to perform his part of contract and is willing to perform as per agreement and the defendant did not perform his legal duty. The plaintiff has to file this suit". ( 20 ) THE question is whether the plaint is in conformity with the Section 16 (c) of the Act and Forms 47 and 48 of Code of Civil procedure. In regard to the nature of pleadings, the observation made by the Division Bench of this Court in Sri Basettappa bangareppa Bangarshettar v Smt. Irawwa Kom Totappa pattanshetti and Others, is worth recalling. It is observed at para 9 as follows:"it is now well-settled by a catena of decisions in this country that while it is not necessary that the Court should insist on precise pleadings, having regard to many factors such as poverty, ignorance, illiteracy, etc. , it is not, however, conceded that without pleading, which is understandable by the Court as well as by the opposite party, issues must be raised or framed and even without evidence supporting such unraised issues, the Court should give relief. , it is not, however, conceded that without pleading, which is understandable by the Court as well as by the opposite party, issues must be raised or framed and even without evidence supporting such unraised issues, the Court should give relief. ( 21 ) IT is further observed at para 11 as follows: "we do not think, we should stretch the liberal approach in the matter of pleadings to such an extent as to draw inference on arithmetical figures indicated by the parties". ( 22 ) THE Supreme Court in Ram Sarup Gupta (dead) by L. Rs. v Bishun Narain Inter College and Others, observed as follows:"it is well-settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set-up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. In such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal". Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal". ( 23 ) IN Gurupadayya's case, supra, there was no pleading regarding readiness and willingness on the part of the plaintiff to perform his part of contract at all. It was on that basis that the Court held that the pleading was not in confirmity with the section 16 (c) and Forms 47 and 48 to I Schedule of the Civil procedure Code. ( 24 ) IT is thus clear that the Court should not throw out thecase of the parties on technicalities of pleadings. It is also not desirable to lay undue emphasis on the form, than the content. The emphasis on both sides is that no pleading is perfect. Every advocate has his own way of drafting pleadings. Drafting of pleadings is an art in itself. But the law of pleadings expect the parties to present their pleadings in confirmity with the well laid down principles. If a statute contemplates pleadings in a particular manner, it should be pleaded in that language. Invariably drafting of pleadings is made on the basis of the forms prescribed in Civil Procedure Code or on the forms available in the text books of law of pleadings. Pleadings do contain both the facts and law on which the parties relay. Therefore, when the question of absence of pleading is raised for the first time, the Court has to consider whether the pleadings made by the parties convey sufficient meaning in terms of the statutory requirements more so when a statute prescribes the standard. ( 25 ) IN a suit for specific performance what is required to be pleaded by the plaintiff is that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant and that he has to notify the other party about his readiness and willingness to perform the said contract and that actually tender the money in proof of his readiness. ( 26 ) CAREFUL perusal of the averments made at paras 5, 6 and 7 in the plaint in my opinion satisfy the requirements contemplated under Section 16 (c) and Forms 47 and 48 of I schedule to Civil Procedure Code, so also, perusal of the written statement, also shows that the defendant has properly understood the pleadings filed by the plaintiff. I therefore do not find much substance in the contention of the learned Counsel for appellant, that the pleadings do not satisfy the requirements as contended. ( 27 ) THAT takes me to the vital question whether the plaintiff has proved his readiness and willingness to perform the contract? ( 28 ) THE parties have relied on the oral evidence and the suit document itself in support of their rival contentions. The core of contention of the Counsel for the appellant is that the trial judge has relied more on the lapse on the part of the defendant in order to grant the decree instead of considering whether the plaintiff was ready and willing to perform his part of the contract at all. ( 29 ) IT is an admitted fact that the plaintiff has not notified in writing from the date of agreement till the date of filing the suit in Court on 9-6-1991, his readiness and willingness to perform his part of the contract. It is only in the plaint, on the 89th day of execution of the document that the plaintiff had come up with a case that he was always ready and willing to perform his part of contract in respect of the sale agreement. But the defendant did not do so. I have carefully perused the averments at paras 5, 6 and 7. There is no whisper about the plaintiff calling upon the defendant to perform his part of the contract and conveyed his willingness to perform his part of the contract. However, at para 8 while pleading the cause of action it is stated that the plaintiff has called upon the defendant on three occasions, to receive the balance of amount and execute the registered sale deed in terms of the agreement. In my opinion, this is not a specific pleading so as to notify his willingness and readiness to perform his part of the contract. In my opinion, this is not a specific pleading so as to notify his willingness and readiness to perform his part of the contract. ( 30 ) P. W. 1 in his examination in chief had admitted that "it was agreed that the balance sale consideration was to be paid by me within 3 months from 10-6-1991". He has not stated that before 10-6-1991, he approached the defendant and, offered to pay the entire balance sale consideration, but the defendant has not taken the sale consideration offered by him. ( 31 ) ACCORDING to him he approached the defendant, 5 or 6 times and offered to pay the balance sale consideration. Thereafter, on 4 or 5 occasions he along with panchas went to the defendant and offered the sale consideration. However, defendant went on postponing the execution of the sale deed within prescribed time. Two days before the last day, again he approached the defendant in the matter, on that day he felt that the defendant was not ready and prepared to sell the property to him. Hence, he filed the suit. ( 32 ) THUS his oral say before the Court is only interested in support of the contentions that he conveyed his readiness and willingness to perform his part of contract within the time stipulated in the agreement and called upon the defendant to perform his part of the contract. According to him, he approached him in the company of panchas for four or five occasions. In cross-examination he has stated that he called upon the defendant on 15 occasions and after execution of Ex. P-1, though he cannot give the dates. According to him 4 days prior to expiry of the Ex. P-l he approached the defendant along with panchas. According to him 25-30 persons gathered at the time of Panchayat. One Muniyappa-P. W. 3, G. Krishna, G. Srinivasa and several others took part in the Panchayat. According to him P. W. 3-Muniyappa, was the leader of the panchayat and the said Muniyappa is his neighbour. It is admitted by him that in the Panchayat defendant agreed, to execute the sale deed within 4 days. On that day he has taken money with him to the Panchayat, he offered the amount to the defendant, the defendant has agreed to execute the sale deed on the next day. It is admitted by him that in the Panchayat defendant agreed, to execute the sale deed within 4 days. On that day he has taken money with him to the Panchayat, he offered the amount to the defendant, the defendant has agreed to execute the sale deed on the next day. On the next day he along with his witnesses went to Karnataka Electricity Board Office and met the defendant. P. W. 2 accompanied him at that time. The defendant and his co-workers were present in the office. Even on that day the defendant agreed to execute the sale deed. This evidence of P. W. 1 clearly shows that the defendant was always ready to execute the sale deed and he has not denied at any time to execute the agreement. P. W. 2 who is one of the attestors of Ex. P-l has also stated before the Court that on one occasion he asked the defendant to execute the sale deed as per the terms of the Ex. P-1 and the defendant said that he would execute the sale deed. ( 33 ) HOWEVER, P. W. 3-Muniyappa appears to be more interested than the plaintiff himself. Admittedly, he is the plaintiffs neighbour. He is the leader of that Panchayat. According to him i. e. , P. W. 3, the Panchayat was conducted at "bajane Mandira" and that the defendant told them that he was not ready to execute the sale deed. The Panchayat ended when the defendant refused to execute the sale deed. According to him, the defendant pleaded some difficulty to execute the sale deed and that his wife did not agree for selling the property. ( 34 ) IT is for the first time that P. W. 3 has come out with new theory that the defendant has refused to execute the sale deed or the ground that his wife did not agree to sell the property. The plaintiff has not whispered anything about this fact in his evidence. P. W. 2 who according to the plaintiff was also present in the Panchayat has not whispered about the aforesaid fact. It is the defendant's case that no such Panchayat was held and the plaintiff never approached him till he received the summons from the Court. Thus the plaintiff attempted to prove his willingness and readiness to perform his contract by placing this interested evidence. It is the defendant's case that no such Panchayat was held and the plaintiff never approached him till he received the summons from the Court. Thus the plaintiff attempted to prove his willingness and readiness to perform his contract by placing this interested evidence. Therefore, it is difficult to relay upon this evidence of P. Ws. 1 to 3 in proof of readiness and willingness to perform his part of the contract. ( 35 ) THE defendant in his evidence has clearly stated that at no time subsequent to Ex. P-1 plaintiff approached him with entire balance of consideration and asked him to execute the sale deed. According to him, he was ever ready to execute the sale deed. According to him, the plaintiff never offered him the balance amount nor the Panchayat was held in this matter. According to him he would have executed the sale deed if the plaintiff had offered the sale consideration within prescribed period. Therefore, the plaintiff has failed to show that the defendant was avoiding to perform the contract. ( 36 ) ONE other contention raised by the learned Counsel for the appellant is that the defendant had no capacity to raise the sale consideration to perform his part of the contract. In E. S. Rajan's case, supra, it is held that:"readiness and willingness of a purchaser would not necessarily require him to prove that he had the requisite funds at all material times to go through the sale transaction. What is required is the vendee's capability to raise the requisite amount and not necessarily the actual availability of the amount with him as cash in hand at all times. That funds were available with the purchaser is at best a circumstances in itself to show that he could be said to be ready from the financial angle to go ahead with the sale, but just because the money is available with the purchaser would not necessarily imply his readiness and willingness, in the same fashion as its absence would not show his waiver or refusal. It would therefore depend on the facts and circumstances of each case as to whether the plaintiffs financial position makes his readiness or willingness probable or otherwise". Therefore, I do not find much force in this contention. ( 37 ) THE plaintiff has not whispered about his occupation and his source of income. It would therefore depend on the facts and circumstances of each case as to whether the plaintiffs financial position makes his readiness or willingness probable or otherwise". Therefore, I do not find much force in this contention. ( 37 ) THE plaintiff has not whispered about his occupation and his source of income. His occupation is given as agriculturist at the time of giving evidence before the Trial Court. The Court is not aware of the extent of land owned by him and his income. He has not whispered anything about his lands or business or his source of income. However, it is suggested in the cross-examination of D. W. 1 that the plaintiff was running a mango Mandi and owns two lorries. D. W. 1 was not aware of it, therefore he denied it. There is no other material in support of his sound financial conditions, the possibility of not calling upon the defendant by issue of a legal notice or letter calling upon the defendant to perform his part of contract may be due to non-availability of funds with the defendant, as vehemently contended by the appellants' Counsel. One other circumstance, which is pointed out by the learned Counsel for the appellant, is the deposit of sale consideration in the Court on 4-11-1991. According to the Counsel for the appellant, this circumstance is also supported his contention that he had no ready money as on the date of filing the suit. He also draws the attention of the court to another circumstance regarding non-payment of full court fee on the date of suit. It is also pointed out by the learned counsel for the respondent that due to non-availability of the sufficient Court fee stamps at Kolar, the plaintiff has filed an application for exemption of payment of Court fee and the prayer was granted by the Court. Whether there was shortage of Court stamp at that time is not seriously disputed at the Trial Court. It is true that the plaintiff has not deposited in the Court the sale consideration as on the date of suit. Whether there was shortage of Court stamp at that time is not seriously disputed at the Trial Court. It is true that the plaintiff has not deposited in the Court the sale consideration as on the date of suit. ( 38 ) THE Explanation (1) or clause (c) of Section 16 of the Act, clearly provides that:"where a contract involved the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court". ( 39 ) HOWEVER, as observed by this Court in Saraswathi Animal's case, supra:"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. . . . There is no authority for the proposition that the purchaser's readiness and willingness has to be inferred by his repeated assertion of those magic words. It is essentially a question of fact to be answered from the material on record read with the proved circumstances of the case". ( 40 ) THE evidence referred to supra convinces me that the plaintiff was not at all ready and willing to perform his part of the contract till the date of filing suit. In the light of the finding of this Court on Point 2, the failure to perform the contract within time stipulated becomes fatal to the plaintiff's case. It is true that time is not the essence of contract for sale of immovable properties. But where parties intended of their conduct that time is the essence, then parties are required in law to satisfy those terms of agreement. ( 41 ) THAT take me to the other question, whether the Trial Court has exercised its discretion in favour of the plaintiff properly and correctly. Normally the Appellate Court does not interfere with the discretion exercised by the Trial Court, if it is sound and judicious. The Appellate Court can correct the judgment of the Trial Court if the discretion is not exercised jurisdiciously. Normally the Appellate Court does not interfere with the discretion exercised by the Trial Court, if it is sound and judicious. The Appellate Court can correct the judgment of the Trial Court if the discretion is not exercised jurisdiciously. It is settled law that jurisdiction to decree for specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal. ( 42 ) SECTION 20 (2) of the Act, enumerates cases in which the Court may properly exercise discretion not to decree specific performance. However, the cases listed under Section 20 (2) of the Act are only illustrative and not exhaustive. There are any number of cases wherein the Court may refuse to grant the decree for specific performance having regard to the facts and circumstances of each case. It is argued by the learned Counsel for the appellant, that the plaintiff is an employee in the karnataka Electricity Board, he wanted the money for purpose of the marriage of his daughter and had to cancel the marriage on account of non-payment of the sale consideration as per agreement. It is true that there is no pleading to that effect but the defendant attempted to explain the hardship that would have been caused to him in the event of decree for specific performance. In this case, it is not shown that the defendant has avoided to perform the contract though such an attempt is made at the time of trial. On the other hand, the plaintiff has failed to perform his part of contract within the stipulated time. It appears the plaintiff has taken an unfair advantage of the defendant's position. Having regard to the fact that the plaintiff failed to perform his part of the contract within the time stipulated and having regard to the other circumstances of this case, I am of the opinion that the Trial Court has not exercised its discretion properly. ( 43 ) A word about the judgment rendered by the trial Judge. Perusal of the judgment shows that the trial Judge although found fault with conduct of the defendant without verifying whether the plaintiff was ready and willing to perform his part of the contract. ( 43 ) A word about the judgment rendered by the trial Judge. Perusal of the judgment shows that the trial Judge although found fault with conduct of the defendant without verifying whether the plaintiff was ready and willing to perform his part of the contract. The Trial Court has not properly directed itself to the evidence on record in reaching the conclusion that the defendant has violated the terms of the contract. The Trial Court has not at all considered whether it would be reasonable to grant a decree for specific performance having regard to all the circumstances of the case. The Trial Court proceeded to grant a decree on the ground that the plaintiff has proved his readiness and willingness to perform his part of the contract and the defendant had not" made out any ground to refuse a decree for specific performance. The Trial Court is not right in granting the decree without considering the hardship of the parties. In my opinion, this is a fit case calling for interference. ( 44 ) IT is held by the Supreme Court in case of N. P. Thirugnanam (dead) by L. Rs. v Dr. R. Jagan Mohan Rao and others, as follows:"it is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the Court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act, 1963 (for short 'the Act' ). Under Section 20, the Court is not bound to grant the relief just, because there was valid agreement of sale. Section 16 (c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms, the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstances is material and relevant and is required to be considered by the Court while granting or refusing to grant relief. If the plaintiff fails to either over or prove the same, he must fail. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstances is material and relevant and is required to be considered by the Court while granting or refusing to grant relief. If the plaintiff fails to either over or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract". ( 45 ) IT is held in the case of M/s. P. R. Deb and Associates v Sunanda Roy , as follows:"in the present case, the right of the appellant to purchase suitable residential accommodation is seriously affected by non-payment of Rs. 4 lakhs within a reasonable time. The respondent had failed to comply with the term of the agreement relating to payment of this amount. In these circumstances, in any case a decree for specific performance cannot be granted as it would be unfair and unreasonable to do so. The High Court, therefore, was not right in setting aside the judgment and order of the Trial Court". In my opinion the rulings cited supra are applicable in all its force to the facts of this case. ( 46 ) IN the result this appeal is allowed. The judgment and decree of the Trial Court is set aside. However, having regard to the facts of this case the Court is of the opinion that the plaintiff is entitled for his earnest money. The defendant is directed to deposit the earnest money in Court within three months from the date of this judgment. The judgment and decree of the Trial Court is set aside. However, having regard to the facts of this case the Court is of the opinion that the plaintiff is entitled for his earnest money. The defendant is directed to deposit the earnest money in Court within three months from the date of this judgment. --- *** --- .