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2002 DIGILAW 89 (GAU)

Parbati Choudhury v. Bhagwan Das Gupta

2002-02-20

AMITAVA ROY, R.S.MONGIA

body2002
AMITAVA ROY, J. — We have heard Mr. B.K. Goswami, the learned senior counsel for the appellants-defendants and Mr. C.K. Sarma Barua, the learned senior counsel for the respondent. 2. This appeal has been directed against the judgment and decree dated 25.9.98 passed by the learned Civil Judge (Senior Division) No. 1, Guwahati in Title Suit No. 183/1986 decreeing the same. The original defendant in the suit Nabalal Choudhury (since deceased) had filed the present appeal. During the pendency of the appeal before this Court the original defendant expired and was substituted by the present appellants being his heirs and legal representatives. 3. The case of the respondent-plaintiff as narrated in the plaint, shortly put, is that the original defendant Nabalal Choudhury (since deceased) was the owner of a plot of land measuring 13 lechas covered by K.P. Patta No. 91(old)/67(new), Dag No. 1241 of village Sahar Guwahati under Mouza Guwahati and that he was the recorded pattadar of the same. The said land is the suit land. His further case is that on 6.8.84 the original defendant approached him proposing to sell the said land alongwith the houses thereon and he (respondent-plaintiff) having agreed to the proposal, an agreement was executed between the parties on the same date i.e. 6.8.84 pursuant whereto the original defendant received Rs.30,000/- as advance. The consideration price of the land and houses was agreed to be Rs.2.10 lacs only. The respondent-plaintiff further averred that it was agreed that the balance consideration money of Rs. 1,80,000/-would be paid within 2 years. On 25.5.85, on the request of the original defendant, the respondent-plaintiff paid a further sum of Rs.20,000/- out of the balance consideration of money of Rs. 1,80,000/-and the original defendant acknowledged the receipt thereof by making necessary endorsements on the back side of the agreement. The further case of the respondent-plaintiff is that thereafter between 15.7.85 and 28.5.86 he paid a further amount of Rs.25,000/- on the request of the original defendant. According to the respondent-plaintiff, the payments were made as under : (i) Rs.5,000/- on 15.7.85; (ii) Rs.10,000/- on 15.9.85; (iii) Rs.5,000/- on 24.3.86 ; and (iv) Rs.5,000/- on 28.5.86. 4. The further case of the respondent-plaintiff is that thereafter between 15.7.85 and 28.5.86 he paid a further amount of Rs.25,000/- on the request of the original defendant. According to the respondent-plaintiff, the payments were made as under : (i) Rs.5,000/- on 15.7.85; (ii) Rs.10,000/- on 15.9.85; (iii) Rs.5,000/- on 24.3.86 ; and (iv) Rs.5,000/- on 28.5.86. 4. The respondent-plaintiff asserted that on such payments being made he requested the original defendant on every occasion to either issue a money receipt or to acknowledge the receipt of the said payments by making endorsements on the back side of the agreement, but though the defendant assured to do so, he neither issued the money receipts nor made any endorsements on the back side of the agreement acknowledging payments of the above mentioned amounts. The respondent-plaintiff categorically stated in the plaint that he, however, recorded the payments of the above amounts in his books of accounts which were regularly maintained in the usual course of business. The respondent-plaintiff averred that till 28.5.86, the defendant had received Rs.75,000/- out of the total consideration price and though he, the respondent-plaintiff, had always been ready and willing to pay the balance amount of Rs.1,35,000/- the defendant was neither ready to accept the same nor to execute and register the sale deed as agreed upon. The respondent-plaintiff alleged that the original defendant also, inspite of his assurances, did not take any step for applying and obtaining the necessary sale permission from the Deputy Commissioner, Kamrup at Guwahati which was necessary under the provisions of the Urban Land Ceiling Act, 1976 for transfer of the land/houses. The further case of the respondent-plaintiff is that situated thus, he got served a legal notice dated 31.7.86 on the defendant by registered post through his Advocate intimating inter-alia that he was ready and willing to pay the balance amount of Rs.1,35,000/- even before execution and registration of the sale deed. The respondent-plaintiff categorically stated in the plaint that he has always been ready and willing to pay the balance consideration money and perform his part of the contract, but the defendant had refused to accept the balance amount and instead, had been negoting with some other persons to sell the land and the houses inspite of the agreement between them. The respondent-plaintiff categorically stated in the plaint that he has always been ready and willing to pay the balance consideration money and perform his part of the contract, but the defendant had refused to accept the balance amount and instead, had been negoting with some other persons to sell the land and the houses inspite of the agreement between them. The respondent-plaintiff alleged that the defendant deliberately and intentionally did not perform his part of the contract and had been trying to sell the land and houses to some other persons illegally and fraudulently. The respondent-plaintiff, therefore, prayed for a decree inter-alia for specific performance of the contract, confirmation of his possession of the suit property and permanent injunction restraining the defendant, his agents etc. from disturbing the peaceful possession of the respondent-plaintiff. In the alternative, he prayed for a decree for compensation of Rs.2,10,000/- in case the suit could not be decreed for specific performance. 5. On receiving the summons in the suit, the original defendant entered appearance and submitted his written statement contending inter alia that the suit was not maintainable and that it was barred by limitation. While admitting the execution of the agreement he denied the receipt of the amount of Rs.20,000/- on 25.5.95 out of the balance consideration price. He further denied to have received any other instalment as claimed to have been made by the respondent-plaintiff. The defendant instead, asserted that he had requested the respondent-plaintiff to execute the sale deed, but the latter, on the plea of shortage of money, did not do so. The defendant contended that the legal notice was served after the expiry of the agreement period and that when he received the legal notice, he simultaneously got the information about the institution of the suit. According to the defendant, the agreement was time barred and thus was not enforceable in law. 6. The learned Trial Court by order dated 13.7.88 dismissed the suit exparte holding that the respondent-plaintiff had no prima facie case and that the suit was also barred by limitation. The respondent-plaintiff preferred an appeal before this Court against the said order dated 13.7.88 and the appeal was registered as F.A. No. 44/88. 6. The learned Trial Court by order dated 13.7.88 dismissed the suit exparte holding that the respondent-plaintiff had no prima facie case and that the suit was also barred by limitation. The respondent-plaintiff preferred an appeal before this Court against the said order dated 13.7.88 and the appeal was registered as F.A. No. 44/88. This Court after hearing the parties, by judgment and order dated 21.1.93 set aside the impugned order holding that the suit was not barred by limitation and remanded the suit to the Trial Court for fresh disposal after giving both the parties opportunity to adduce evidence. It may be relevant to mention here that even before the suit was dismissed by the order dated 13.7.88 mentioned above the evidence of the respondent-plaintiff and his witness had been recorded. This Court, while passing the judgment and order dated 21.1.93 allowed the defendant to cross-examine the said witnesses after remand. After remand, the defendant as prayed for, was allowed by the learned Trial Court to file his amended written statement. In his amended written statement, wherein the defendant reiterated his stand in the original written statement, he further contended that the respondent-plaintiff was a small shopkeeper dealing in scraps and old motor parts and was not at all financially sound. He alleged that the respondent-plaintiff who was a tenant under him had defaulted to make regular payment of house rent since the year 1985 and that he (respondent-plaintiff) became reluctant and unwilling to perform the contract within the time fixed. The defendant stated that the respondent-plaintiff was not at all interested in purchasing the property, but was intentionally delaying the matter to prolong his tenancy as far as possible on the pretext of buying the suit property so that the defendant would not take legal steps to evict him therefrom. The defendant further alleged that the respondent-plaintiff had totally stopped making payment of the house rent since 1989 and by his conduct had rescinded the contract and, therefore, was not entitled to a decree for specific performance as prayed for. 7. The learned Trial Court, on the pleadings, framed the following issues: "1. Whether there is cause of action for the suit? 2. Whether the suit is maintainable in the present form? 3. Whether he suit is barred by law of limitation? 4. 7. The learned Trial Court, on the pleadings, framed the following issues: "1. Whether there is cause of action for the suit? 2. Whether the suit is maintainable in the present form? 3. Whether he suit is barred by law of limitation? 4. Whether any agreement for sale of the landed property as alleged by the plaintiff was entered into between the parties ? 5. If so (5) what was the date of contract ? 6. Whether he plaintiff has paid to the defendant any amount on any occasion after the date of the agreement ? 7. Whether the plaintiff has always been ready and willing to perform his part of the contract ? 8. To what relief, if any, the plaintiff is entitled?" 8. The respondent-plaintiff had examined himself and one Sri Lal Chand Prasad on 8.7.88. They were cross-examined on 13.12.94 and thereafter the defendant examined himself as the only witness in support of his case. While the respondent-plaintiff proved and exhibited 27 documents, the defendant did not prove any document. The learned Trial Court, by the impugned judgment and decree, decreed the suit for specific performance of contract and further granted a decree confirming his possession of the suit property and permanent injunction restraining the defendant, his men etc. from disturbing the respondent-plaintiff's possession of the suit property. Hence, the present appeal. 9. Before adverting to the submissions advanced on behalf of the parties it would be pertinent to set out in short the findings of the learned Trial Court on the prime issues in the suit pertaining to the agreement to sell and the readiness and willingness of the respondent-plaintiff to perform his part of the contract. The learned Trial Court, while holding on the basis of the pleadings and the evidence on record that the agreement to sell (Ext. 2) was executed by the parties on 6.8.84 recorded the finding that out of the total consideration price of Rs.2,10,000/- the respondent-plaintiff had, at the time of execution of the agreement, paid Rs.30,000/- as advance followed by payment of further sum of Rs.20,000/- on 25.5.85. The learned Trial Court, however, held that the respondent-plaintiff could not produce sufficient evidence in support of the other payments amounting to Rs.25,000/- claimed to have been made by the respondent-plaintiff in different instalments, inasmuch as, the relevant entries in the books of accounts of the respondent-plaintiff, namely, Exts. The learned Trial Court, however, held that the respondent-plaintiff could not produce sufficient evidence in support of the other payments amounting to Rs.25,000/- claimed to have been made by the respondent-plaintiff in different instalments, inasmuch as, the relevant entries in the books of accounts of the respondent-plaintiff, namely, Exts. 6,7,8, 9,10 and 11 showing such payments were not made by him personally, but by his employee who was not examined in the suit. On the aspect of readiness and willingness of the respondent-plaintiff to perform his part of the contract, the learned Trial Court on consideration of the pleadings and the evidence on record and, more particularly, the oral evidence of the respondent-plaintiff, Ext. 2, the agreement and Ext. 14, the legal notice, concluded that the respondent-plaintiff had been ready and willing to perform his part of the contract, he had the financial capacity to pay the balance consideration price of Rs. 1.6 lakhs and that it was the defendant who did not accept the balance amount and failed to execute and register the sale deed in terms of the agreement. 10. Shri B.K. Goswami, the learned senior counsel for the appellant, assailing the above findings of the learned Trial Court, argued that in terms of Ext. 2, the agreement, the respondent-plaintiff was required to pay the balance amount of Rs. 1,80,000/- (deducting Rs.30,000/- from the total consideration price of Rs.2,10,000/-paid on the date of the agreement) within a period of two years from the date of the agreement i.e. 6.8.84 and that it was only on receipt of the said balance amount from the respondent-plaintiff within the stipulated time of two years that the defendant was liable to execute and register the sale deed in respect of the suit property. The learned counsel contended that admittedly, the balance amount of the consideration price had not been paid by the respondent-plaintiff within the stipulated period of two years from the date of the agreement and, therefore, the respondent-plaintiff was not entitled to a decree for specific performance of the said contract. Drawing our attention to Ext. The learned counsel contended that admittedly, the balance amount of the consideration price had not been paid by the respondent-plaintiff within the stipulated period of two years from the date of the agreement and, therefore, the respondent-plaintiff was not entitled to a decree for specific performance of the said contract. Drawing our attention to Ext. 14, the legal notice, the learned counsel for the appellant argued that though the same was dated 31.7.86 it was not received by the respondent within two years from the date of the agreement and, therefore, the same is not relevant for the purpose of ascertaining as to whether the respondent-plaintiff was ready and willing to perform his part of the contract by paying the balance consideration amount within the stipulated period. The learned counsel further pointed out, that in the legal notice, Ext. 14, the respondent-plaintiff had claimed to have paid an amount of Rs.75,000/- out of the total consideration price and had offered to pay only Rs.1,35,000/- though, in fact, the respondent-plaintiff had paid only Rs.50,000/- towards the consideration price and, therefore, the offer to pay Rs. 1,35,000/- does not amount to expressing his readiness and willingness to perform his part of the contract. It was further argued by the learned counsel for the appellant that the respondent-plaintiff at all relevant times did not have sufficient means to pay the balance consideration price and, therefore, he cannot be said to be ready and willing to perform his part of the contract. According to the learned counsel for the appellant, the respondent-plaintiff had no capacity to pay the balance price and by not paying the same to the defendant within the stipulated period he has committed a breach of the agreement and was, therefore, not entitled to the discretionary reliefer specific performance of contract. Lastly, it was argued on behalf of the appellant, that the relief of specific performance of contract is an equitable relief and the facts and circumstances of the case disclosed that the conduct of the respondent-plaintiff does not justify the exercise of judicial discretion in favour of granting specific performance of contract as prayed for by him. The learned senior counsel for the appellant, in support of his argument that the respondent-plaintiff had no sufficient means to pay the balance consideration price, had drawn our attention to the relevant portions of the evidence of the respondent-plaintiff and Exts. The learned senior counsel for the appellant, in support of his argument that the respondent-plaintiff had no sufficient means to pay the balance consideration price, had drawn our attention to the relevant portions of the evidence of the respondent-plaintiff and Exts. 17, 18 and 19 in the suit. Referring to that particular portion of the evidence where the respondent-plaintiff had stated that he was an income tax assessee, but had not mentioned in the Income Tax Returns the amount of Rs.75,000/- paid to the defendant, the learned senior counsel for the appellant argued that the balance sheets of the respondent-plaintiff, Exts. 17, 18 and 19 did not show sufficient annual income of the respondent-plaintiff during the relevant period so as to enable him to make an advance of Rs.75,000/- as claimed by him or to hold that he was financially capable of paying the entire balance amount of the consideration price. He contended that the learned Trial Court erred in holding that the respondent-plaintiff was financially capable of performing his part of the contract only on the ground that he was a motor parts dealer and paid income tax without reference to the other evidence on record, more particularly his balance sheets mentioned hereinabove. 11. Refuting the above arguments, Mr. C.K.S. Barua, the learned senior counsel for the respondent, while supporting the findings of the learned Trial Court argued, that the respondent-plaintiff had been throughout ready and willing to perform his part of the contract and that he had been able to prove and establish the same in the suit. The learned counsel argued that it was the defendant who deliberately refused to accept the balance consideration price within the stipulated period and execute and register the sale deed and that therefore, the respondent-plaintiff was entitled to the reliefs prayed for in the suit. In support of this contention, Mr. Barua has taken us through the relevant portions of the evidence of the respondent-plaintiff (PW1) and the original defendant (DW1). Referring to that portion of the evidence of the respondent-plaintiff where he had categorically stated that he had contacted the defendant 4/5 times requesting him to take the balance amount and execute the sale deed prior to the filing of the suit and that the defendant inspite of the balance amount being offered to him failed to execute the sale deed. Mr. Mr. Barua submitted that it was not permissible on the part of the defendant to contend that the respondent-plaintiff was not ready and willing to perform his part of the contract. On the financial capacity of the respondent-plaintiff, the learned counsel for the appellant drew our attention to the evidence of the defendant, DW1, wherein he had admitted that the respondent-plaintiff was running his business of old motor parts and that he had no personal knowledge about his early income. The learned counsel for the respondent further referred to the letters Exts. 3, 4 and 5 claimed to be written by the defendant to the plaintiff-respondent pleading for payment of money to meet the expenses for the operation of his (defendant) wife and son and argued that this would also go to establish that the financial position of the plaintiff-respondent was satisfactory and that the defendant, on necessity, depended on him for financial assistance. He argued that it therefore did not lie in the mouth of the defendant to contend that the financial condition of the respondent-plaintiff was not sound enough to pay the balance amount of the consideration price. It was argued by the learned counsel for the respondent that in the facts and circumstances of the case the plaintiff-respondent was always ready and willing to perform his part of the contract and he was not guilty of any conduct to deny him the relief of specific performance of the contract. In course of the argument, the learned counsel for the respondent informed this Court that after the decree of the learned Trial Court, the respondent-plaintiff had deposited the balance consideration price of Rs. 1,60,000/- which was, however, withdrawn later on, being permitted by this Court, following stay of the degree of the learned Trial Court. He argued that it was the defendant who throughout tried to avoid the contract and made wrongful gain out of the advance money received by him from the respondent-plaintiff. We have considered the rival contentions of the parties. Being the final Court of facts, we have carefully scrutinised the pleadings and the evidence on record. He argued that it was the defendant who throughout tried to avoid the contract and made wrongful gain out of the advance money received by him from the respondent-plaintiff. We have considered the rival contentions of the parties. Being the final Court of facts, we have carefully scrutinised the pleadings and the evidence on record. The questions which fall for our consideration in this case are, firstly, whether the respondent-plaintiff had been ready and willing to perform his part of the contract by paying the balance consideration price within the stipulated period and, secondly, whether the defendant had deliberately refused to accept the balance consideration price offered to him by the respondent-plaintiff within the stipulated period and had failed to execute and register the sale deed in terms of the agreement, Ext. 2. 12. The execution of the agreement for the specific performance of which the suit had been filed and the terms and conditions contained therein are not in dispute between the parties. 13. Though in the written statement the defendant denied of having received any further amount beyond Rs.30,000/- out of the consideration price of Rs.2,10,000/-, in his evidence, he admitted to have received a further sum of Rs.20,000/-. He also admitted to have acknowledged the receipt of the said amount by making endorsement on the back side of the agreement, Ext. 2. In support of his case in the plaint the respondent-plaintiff exhibited Cash Books and the Ledger A7 C for the relevant period, namely, Exts. 6, 7, 8, 9, 10 and 11 to show a payment of Rs.75,000/- towards the consideration price. Admittedly, the entries in the said documents were not made in the hand of the respondent-plaintiff, but by his employee who was not examined in the suit. The learned Trial Court by observing that as the said entries were not made by the respondent-plaintiff and as the employee who had made the entries had not been examined, held that the amount of Rs.25,000/- claimed to have been paid by the plaintiff between 15.7.85 and 28.5.86 had not been proved. The learned Trial Court by observing that as the said entries were not made by the respondent-plaintiff and as the employee who had made the entries had not been examined, held that the amount of Rs.25,000/- claimed to have been paid by the plaintiff between 15.7.85 and 28.5.86 had not been proved. As the defendant had been consistently disputing about the receipt of this amount of Rs.25,000/- and as we do not notice any perversity as such in the appreciation of the evidence by the learned Trial Court in arriving at this finding we are not inclined at this distant point of time to disturb the said finding. Accordingly, we proceed on the basis that the respondent-plaintiff had, in fact, paid Rs.50,000/- out of the total consideration price of Rs.2,10,000/-. 14. The respondent-plaintiff in his evidence had categorically stated that he had contacted the defendant 4/5 times requesting him to take the balance amount and execute the sale deed prior to the filing of the suit. It is in his evidence that he had offered to the defendant, the money and though the defendant assured to execute the sale deed, he failed to do so. The respondent-plaintiff has further stated in his evidence that he has a business of motor parts and he is an income tax assessee. He has also exhibited the balance sheets, Exts. 17 to 19, for the relevant period to show that an amount of Rs.75,000/- had been paid by him to the defendant towards the consideration price. The plaintiff in course of his evidence has also proved and exhibited the legal notice dated 31.7.86 wherein it is clearly mentioned that he had contacted the defendant on several occasions to accept the balance consideration money and to execute the sale deed. In the sard notice, it had also been stated clearly that he was ready and willing to pay the balance consideration money which the defendant had refused to accept. By the notice, the respondent-plaintiff offered the balance consideration money and requested the defendant to accept the same within a period of three days from the date of the notice. The plaintiff also proved and exhibited three letters, being Exts. 3, 4 and 5, claimed to be written by the defendant to him pleading for financial help. 15. By the notice, the respondent-plaintiff offered the balance consideration money and requested the defendant to accept the same within a period of three days from the date of the notice. The plaintiff also proved and exhibited three letters, being Exts. 3, 4 and 5, claimed to be written by the defendant to him pleading for financial help. 15. The stand of the defendant, on the other hand, as taken in the written statement vis-a-vis his evidence disclose certain glaring inconsistencies. In the written statement, he categorically denied of having received any amount beyond Rs.30,000/- on the date of the agreement. In his evidence, on being confronted with his endorsement made on the back side of Ext. 2, he admitted to have received a further sum of Rs.20,000/- on 25.5.85. Similarly, in his written statement, the defendant in paragraph 9 thereof, admitted to have been served with legal notice, but contended that such service was after expiry of the agreement period. However, in his evidence the defendant denied to have received any such notice. He also denied to have written or sent the letters, being Exts. 3, 4 and 5, and alleged that those were prepared by the respondent-plaintiff for the suit. In his evidence, however, the defendant admitted that the respondent-plaintiff was running his business of old motor parts in a room taken on rent from him. In his cross-examination, the defendant admitted his address at Calcutta to be 205, Unique Park, Calcutta-34. He also admitted that such address was written on Ext. 3 and 5 as sender's address. The defendant in his evidence while denying having received Rs,25,000/-between 15.7.85 and 18.3.86 expressed his readiness to return the amount of Rs.50,000/- received by him as advance from the respondent-plaintiff. 16. On a careful consideration of the pleadings of the parties and the evidence on record, we are not in a position to persuade ourselves to agree with the contentions raised on behalf of the appellants. According to us, the respondent-plaintiff has been able to prove and establish that he had been ready and willing to perform his part of the contract by paying the balance consideration amount and that he is not guilty of any conduct so as to deny him the relief of specific performance of the contract. According to us, the respondent-plaintiff has been able to prove and establish that he had been ready and willing to perform his part of the contract by paying the balance consideration amount and that he is not guilty of any conduct so as to deny him the relief of specific performance of the contract. The defendant having raised the contention that the respondent-plaintiff had no financial capacity to pay the balance consideration price, the onus of proof was on him, but he failed to discharge the same. There is no evidence on record to reasonably hold that the financial condition of the respondent-plaintiff at all relevant times, was such that he was not in a position to pay the balance consideration price. The contention raised on behalf of the appellants that legal notice dated 31.7.86 was served after expiry of the stimulated period and, therefore, did not constitute a valid offer or proof of the readiness and willingness of the respondent-plaintiff is also not acceptable to us. The Agreement, Ext. 2, was executed between the parties wherein the defendant had offered to sell the suit property and the respondent-plaintiff agreed to purchase the same and it was stipulated that the balance consideration amount of Rs. 1,80,000/-would be paid within a period of 2 years from the date of the agreement. The legal notice, Ext. 14, was issued on behalf of the respondent-plaintiff offering the balance consideration price in continuation of his acceptance of the offer made by the defendant to sell the suit property. By applying the analogy of completion of communication of an acceptance against the proposer as laid down in Section 4 of the Indian Contract Act, 1872, we are inclined to hold that so far as the defendant was concerned, the communication to pay the balance consideration price as made in the legal notice was complete as against the defendant on 31.7.86 itself when the registered letter was .put in course of transmission to the defendant. In that view of the matter, the offer of the respondent-plaintiff to pay the balance consideration price having been made before the expiry of the stipulated period of 2 years from the date of the agreement it was a valid offer evidencing the readiness and willingness on the part of the respondent-plaintiff to perform his part of the contract. In that view of the matter, the offer of the respondent-plaintiff to pay the balance consideration price having been made before the expiry of the stipulated period of 2 years from the date of the agreement it was a valid offer evidencing the readiness and willingness on the part of the respondent-plaintiff to perform his part of the contract. To hold, in the above premises, that as the respondent-plaintiff had offered to pay only Rs.1,35,000/- instead of Rs. 1,60,000/-it was not an offer to pay the balance consideration price as contended on behalf of the defendant (as the defendant disputes the payment of Rs.25,000/- beyond Rs.50,000/-) would amount to taking a very narrow and pendantic approach in the matter of interpreting the notice or judging the intention of the respondent-plaintiff. We take this view because, it is not a case where the respondent-plaintiff had failed to adduce any evidence in support of his stand that he had paid a sum of Rs.25,0007 - in different instalments between 15,7.85 and 28.5.86. As noticed above, the learned Trial Court had not accepted the said evidence solely on the ground that the entries to the effect as made in the books of accounts of the respondent-plaintiff had not been made by him and the person who made these entries was not examined as a witness. Though we are not inclined to differ from the learned Trial Court with regard to this finding we are of the opinion that it would not be justified to non-suit the respondent-plaintiff on the above plea of the appellants. The respondent-plaintiff, according to his calculations, had made payment of Rs.75,000/- in all out of the total consideration price and, therefore, had made an offer to pay the balance of Rs. 1,35,000/- in the notice. We do not think that the respondent-plaintiff by making an offer to pay Rs. 1,35,000/- had in any manner tried to either mislead the defendant or that the said offer did not amount to expressing his readiness and willingness to perform his part of the contract. The above contentions raised on behalf of the appellants therefore fails. 17. Keeping in view the nature of the dispute between the parties, the conduct of the defendant is also noticeable. His stand in the written statement vis-a-virhis evidence on oath is inconsistent and contradictory with regard to receipt of payment and service of notice. The above contentions raised on behalf of the appellants therefore fails. 17. Keeping in view the nature of the dispute between the parties, the conduct of the defendant is also noticeable. His stand in the written statement vis-a-virhis evidence on oath is inconsistent and contradictory with regard to receipt of payment and service of notice. He even went to the extent of denying the letters of Exts. 3 to 5 said to have been written by him and which contained his address which he admitted in his evidence to be correct These letters had been written in me year 1982 much before the agreement, Ext. 2, was executed between the parties and clearly before any such dispute pertaining to the agreement was even contemplated by the parties. The letters bear the seal of the Postal Department. It is, therefore, difficult for us to conclude that these letters were forged by the respondent-plaintiff for the purpose of the case. On the other hand, the letters bear testimony of the fact that the defendant by writing such letters had pleaded for financial help from the respondent-plaintiff. In course of hearing, in reply to a query made by the Court, we are informed that till date the appellants had not refunded the amount of Rs.50,000/-admittedly paid by the respondent-plaintiff to the original defendant. In the facts and circumstances of the case, we arc inclined to hold that the conduct of Act defendant is not wholly above board. It appears to us that the defendant had, in the instant case, deliberately refused to accept the balance consideration price from the respondent-plaintiff and had wilfully avoided to execute and register the sale deed. 18. The learned senior counsel for the respondent relied on a decision of the Apex Court in Prakash Chandra -Vs- Angadlal & Ors., AIR 1976 SCpage 1241, wherein it was inter alia held that the relief of specific performance should ordinarily be granted and ought to be denied only when equitable considerations point to its refusal. The learned senior counsel for the respondent argued, relying on the ratio of the said decision, that in the instant case the conduct of the respondent-plaintiff had not been such so as to disentitle him to the relief of specific performance. 19. As alluded above, we are inclined to agree with the learned counsel for the respondent. The learned senior counsel for the respondent argued, relying on the ratio of the said decision, that in the instant case the conduct of the respondent-plaintiff had not been such so as to disentitle him to the relief of specific performance. 19. As alluded above, we are inclined to agree with the learned counsel for the respondent. The agreement was one for transfer of immovable property for a price fixed and the respondent-plaintiff had paid Rs.50,000/- in advance and had been ready and willing to perform the essential terms of the agreement. The respondent-plaintiff has averred in the plaint about his readiness and willingness to perform his part of the contract. He has been able to prove and establish the same. 20. In the facts and circumstances of the case keeping in view the conduct of the parties, we cannot persuade ourselves to conclude that if a decree for specific performance of contract is granted in favour of the respondent-plaintiff it would either be inequitable or amount to an unfair advantage over the appellants. The relief of specific performance of contract is no doubt an equitable relief and a Court of law has to exercise its judicial discretion in granting or refusing the same. In the instant case, considering the pleadings of the parties and the materials on record together with the attending facts and circumstances, we are inclined to exercise our discretion in favour of the respondent-plaintiff. We, accordingly, hold that the respondent-plaintiff has proved and established that he had been ready and willing to perform his part of the contract and that the defendant had deliberately refused to accept the balance consideration price and intentionally avoided to execute and register the sale deed in terms of the agreement. We see no reason to interfere with the findings and conclusions of the learned Trial Court as contained in the impugned judgment and decree. 21. In view of what has been said above, we find no merit in the appeal and the same is dismissed. The impugned judgment and decree is upheld. There would, however, be no order as to costs.