Judgment :- P.SHANMUGAM,J. Defendants- 1 to 6 and 8 are the appellants. The suit filed by the respondents for specific performance has been decreed. The appeal is against this judgment and decree. 2. The parties are described as per their rankings in the suit. 3. The brief facts are as follows: Defendants-1 to 4 are owners of the property, house and ground at No.137, Sivanandha Nagar Co-operative Colony, Tatabad, Coimbatore. They were residing in the said premises. They have entered into an agreement with the plaintiffs dated 21.12.1994 for sale of this property for a total consideration of Rs.18,00,000/- and received an advance of Rs.2,00,000/- on the date of the agreement. The defendants have planned to settle down at Visakhapattinam, and for certain other family reasons, the defendants agreed to sell the property and leave Coimbatore. The defendants made it clear to the plaintiffs that they will require two months' time after full payment of sale price and after registration of the sale documents, to vacate the premises, since time was need for them to shift their belongings and make alternative accommodation to Visakhapattinam. A clause was included in the agreement that on payment of the entire balance of sale consideration, the plaintiffs would be put in possession within a period of two months thereafter. The period prescribed for completion of the sale transaction was fixed at four months. Hence, a controversy arose with regard to the handing over of possession of the property. The suit notice dated 13.4.1995 was followed by exchange of notices. In the suit notice, plaintiffs informed the defendants that they are ready for registration of documents with the balance amount payable to the defendants. On the defendants taking a contrary stand, the suit came to be filed for specific performance directing the defendants to execute one or two sale deeds for Rs.18,00,000/-, in all, free from encumbrances, in favour of the plaintiffs on receiving the balance sale consideration within the time fixed by the Court. The learned Subordinate Judge, after considering the matter, found that the suit agreement is true. He found that the defendants have not violated the clauses of the agreement; but granted a decree for specific performance. Now, the first appeal is against this decree and judgment by the defendants. 4. The learned Subordinate Judge, after considering the matter, found that the suit agreement is true. He found that the defendants have not violated the clauses of the agreement; but granted a decree for specific performance. Now, the first appeal is against this decree and judgment by the defendants. 4. Mrs.Hema Sampath, appearing on behalf of the appellants, submitted that the plaintiffs were never ready and willing to perform their part of the contract and that they had no means to perform the contract. According to her, though the learned Judge has found that the defendants are not at fault, erred in granting the discretionary relief of specific performance contrary to Section 16(c) of the Specific Relief Act. It is submitted that the plaintiffs have failed to establish that they were always ready and willing to perform the essential terms of contract. The learned counsel submits that the plaintiffs have not established that they had sufficient means and proof of their capacity to mobilise the funds. The documents filed by them to show that they have deposited the sale consideration in the bank are all made subsequent to the filing of the suit. There are no records to show that during the relevant period, the plaintiffs have sufficient source. It is further submitted that the plaintiffs have not chosen to enter into the box to prove their readiness and willingness. She had referred to number of decisions in support of her contention and ultimately submitted that the plaintiffs have not come to the Court with clean hands and are not entitled for the discretionary relief. 5. Mr.V.Raghupathi, learned counsel appearing on behalf of the plaintiffs, submitted that there was no question of the plaintiffs' bona fide interest or sufficiency of funds available with them before the trial Court. He submits that no question on this aspect was put to the plaintiffs and it was not at all controverted by the defendants at any stage. The only controversy was with regard to the handing over of possession. The learned counsel submits that it is very difficult to conceive a situation by which the plaintiffs would be parting with 18 lakhs of rupees without taking possession of the property. According to him, defendants-1 to 4 wanted four months' time to make arrangements to shift their residence, and accordingly, there is no justification for them to seek further time after payment of full consideration. According to him, defendants-1 to 4 wanted four months' time to make arrangements to shift their residence, and accordingly, there is no justification for them to seek further time after payment of full consideration. Though the clause dealing with possession is not happily worded, the intention of the parties are very clear and gives no room for ambiguity. The contract was negotiated through a broker and the first plaintiff is the mother and the second plaintiff is the daughter. Admittedly, Govindaraju - P.W.1 is the son of the first plaintiff and brother of the second plaintiff. P.W.1 was working in a Co-operative Department. Therefore, on behalf of the first plaintiff, aged 80 years, and the second plaintiff, P.W.1 and T.Raghupathy finalised the agreement of sale and P.W.1, who knows the matter personally, had given evidence. The plaintiffs have, admittedly, seen the draft sale deeds received by the defendants and they have not, at any time, suggested a change of the clauses, objecting the handing over of possession. Therefore, it should be presumed that the defendants did not have objection for execution of the sale deed, agreeing to vacate the premises on the date of payment of the full sale consideration. Insofar as the readiness and willingness on the part of the plaintiffs is concerned, it is submitted that it is the plaintiffs who have been corresponding and meeting the defendants in person, requesting for execution of the sale deed and it is the plaintiffs who have first issued notices before the expiry of the four months' period and that they have proved of their means by making a deposit of the money once they came to know that the defendants are trying to sell over the property to third parties and the suit was laid for specific performance of the agreement. The learned counsel also submitted that the finding of the Court below that the defendants are not at fault for breaking of the agreement is contrary to the facts, and pray that the said finding is liable to be set aside, and that they may be permitted to urge the High Court under Order XLI Rule 36 to set aside the said finding and confirm the decree for specific performance. 6. We have considered the rival submissions and gone through the records. 7. 6. We have considered the rival submissions and gone through the records. 7. Defendants-1 to 4 are residing in the suit premises and they intended to shift their residence to Visakhapattinam after selling the property, and on negotiation with the plaintiffs, they have entered into the sale agreement for the sale of the property for a sale consideration of Rs.18,00,000/- and received a sum of Rs.2,00,000/- as advance of sale consideration and executed Ex.A2 - agreement, that the sale transaction should be completed within a period of four months, are not in dispute. The only controversy was with reference to the time of giving possession. According to the plaintiffs, possession should be handed over on payment of Rs.18,00,000/- and the registration of sale deed; whereas, the case of defendants-1 to 4 is that they should be given two more months' time to vacate and hand over vacant possession after registration and payment of the entire sale consideration. On all other aspects, viz., in reference to the readiness and willingness on the part of the plaintiffs, though arguments were advanced and rival points were made in exchange of notices and in the pleadings, the defendants, in their evidence, have conceded that there was no controversy in reference to the other aspects of the matter. D.W.1 - fourth defendant, in his evidence, has stated as follows: which means that excepting the issue whether possession should be handed over on the date of agreement, there is no other controversy between them. He has further stated that: meaning thereby that the defendants knew that the plaintiffs' family is a "well to do" family; that they did not inform that they did not have funds and they have intimated under Ex.A25 that they are ready to execute the sale deed. They were prepared to execute the sale deed even after the period was over, and that the plaintiffs informed them that they are ready with Rs.13,00,000/- and they believed the same. They did not go through the fixed deposit receipts filed in the Court. From the above evidence adduced on behalf of the defendants, it is not open to the defendants to contend that the plaintiffs were not having sufficient means, and therefore, they were not ready and willing to perform their part of the contract. They did not go through the fixed deposit receipts filed in the Court. From the above evidence adduced on behalf of the defendants, it is not open to the defendants to contend that the plaintiffs were not having sufficient means, and therefore, they were not ready and willing to perform their part of the contract. Even in their written statement, they did not project, as submitted in this Court, that the plaintiffs did not have means, and therefore, they were not ready and willing to perform their part of the contract. The plaintiffs have stated in paragraph 5 of the plaint that the plaintiffs have been ready and willing to perform their part of the contract with the balance sale consideration and that the defendants are not even ready to execute the sale deeds even after expiry of the four months' period mentioned in the agreement of sale, and so, the defendants have treated that time is not the essence of the contract. In the evidence, P.W.1 has stated that they were always ready with the balance amount for getting the sale deed. From the exchange of notices, it is seen that under Ex.A14, a reply notice was sent on behalf of the defendants, demanding the plaintiffs to pay the balance sale price and obtain the conveyance deed of the property in terms of the agreement of sale within 48 hours of the receipt of notice. The defendants did not state that only legal possession would be given and not actual possession. In reply to this notice, the plaintiffs, in Ex.A17, have stated that they have been pressing for execution of the sale deed for vacant possession on the date of registration; whereas, the defendants were taking time on the plea that only if they get alternative accommodation they will vacate and hand over vacant possession on the date of registration. They have also reiterated that they are ready and willing to perform their part of the contract with the balance consideration, despite the technical point raised by the defendants. They once again state that they will pay the balance of the consideration immediately or within a short date specified by them in compliance of the terms and conditions of the agreement. They once again state that they will pay the balance of the consideration immediately or within a short date specified by them in compliance of the terms and conditions of the agreement. It is only thereafter, in Ex.A19 dated 1.5.1995, the defendants' counsel stated that legal possession would be given on the date of sale deed and physical possession would be given within two months from the date of registration. In Ex.A14 the first reply given on behalf of the defendants to the suit notice dated 16.4.1995, it has been specifically stated as follows: " My clients have agreed to convey and you have agreed to purchase the property by paying balance of sale price of Rs.16,00,000/- within a period of four months from the date of agreement. " D.W.1 has categorically admitted that the plaintiff informed the defendants on 17.3.1995 when he gave the draft agreement that the plaintiffs are ready to get the sale deed executed. D.W.1 had also stated that he did not mention about the furnishing of draft sale deed by the plaintiffs in Ex.A14 and that he did not mention about the time within which the sale deed should be executed. In other words, the D.W.1 has conceded that on 17.3.1995, before the expiry of the period of four months, the plaintiff gave the draft sale deed, informing the defendants they are willing to get the sale deed executed. It is also pertinent to note that though Ex.A5 dated 13.4.1995 was received by the defendants on 17.4.1995, the reply dated 16.4.1995 was sent only on 22.4.1995, ante-dating it, as though they have not received Ex.A5. Under Ex.A14, the defendants have not acknowledged the receipt of Ex.A5, purposely so as to claim probably that the plaintiffs were not ready to perform their part of the contract. From the above, it could be seen that the plaintiffs were always ready and willing with the funds to perform their part of the agreement; but, on the other hand, it is the defendants who had been postponing the execution on some pretext or the other. 8. From the above, it could be seen that the plaintiffs were always ready and willing with the funds to perform their part of the agreement; but, on the other hand, it is the defendants who had been postponing the execution on some pretext or the other. 8. The learned Subordinate Judge, on Issue No.3, found that even before the expiry of the four months' period, the plaintiffs have informed the defendants that they were ready with the funds of Rs.13,00,000/-, as admitted by D.W.4, and therefore, it is clear that within the agreed period, the plaintiffs were always ready to perform their part of the contract. On the crucial issue whether the possession should be handed over on the date of the sale deed after paying the entire sale consideration on which the parties have real controversy, the following are the relevant extracts of the clauses of Ex.A2: " That the Vendor ... have agreed to convey the property either in favour of the purchasers or their nominees for a valid sale consideration for Rs.18 lakh (Rs.Eighteen Lakhs Only) and execute a conveyance free from all encumbrances and charges and put the purchasers in possession of the property within a period of 4 (Four) months from this date and the purchasers have agreed to purchase the property for the said price. " "That the vendors shall put the purchasers in vacant possession of the said property on the date of sale deed and on payment of the entire balance of sale price of Rs.16 lakhs within a period of two months. " 9. The case of the defendants in their written statement is as follows: “They (plaintiffs) were told to pay the balance sale price as agreed and secure registration of sale deed so that they could make arrangements to move out and vacate within two months from the date of registration of sale deeds. " They have further stated that it was strictly agreed and understood that the sale will be executed within four months from the date of agreement and it was strictly agreed and understood that physical possession of the property will be delivered to the plaintiffs only after two months from the date of registration of the sale deed and after payment of the balance sale consideration of Rs.16,00,000/-. The plaintiffs had agreed to abide by the stipulations. The plaintiffs had agreed to abide by the stipulations. In suppression of the contract as to the term, they have come forward with a twisted version stating that the possession was deliverable to them immediately after registration of the sale deed. Thus, the stand of the defendants is that legal possession will be given to the plaintiffs on the date of the sale deed after receiving the entire sale consideration and physical possession could be given after two months from the date of registration of the sale deed; whereas, the case of the plaintiffs is that the defendants, on receipt of the entire sale consideration in cash and execution of the sale deed, must deliver vacant possession on the same day. This is the real controversy, as admitted by D.W.4, in his evidence. 10. It is argued on behalf of the respondents/ plaintiffs that the total period of completion of the sale transaction was agreed to be four months, and on payment of Rs.18,00,000/- and registration of the sale deed, they will be put in possession of the property. That was the earlier clause. The explanation is that within four months' period, if they get the sale deed executed, then, they will have to give two months' time for vacating the property. But, if for any reason the sale could not be completed before the expiry of the four months' period, time being the essence of the contract, then, the question of giving further two months' period does not arise for consideration. In any event, in this case, such an inference does not arise for consideration. The four month period expired by 30.4.1995 and before that, since the plaintiffs' attempt to get at the sale deed failed, they issued the suit notice dated 13.4.1995 and filed the suit on 2.8.1995. 11. The plaintiffs have been pursuing with their demand and explicitly informed the defendants orally and in writing that they are ready and willing to perform their part of the contract. As stated in the reply to the legal notice Ex.A19, the stand of the defendants was that legal possession would be given to the plaintiffs on the date of the sale deed and the physical possession will be given within two months from the date of registration of the sale deed. As stated in the reply to the legal notice Ex.A19, the stand of the defendants was that legal possession would be given to the plaintiffs on the date of the sale deed and the physical possession will be given within two months from the date of registration of the sale deed. The agreement contemplates that on execution of the sale deed, the plaintiffs shall be put in possession and even the clause which gives room to controversy says that vacant possession of the property will be given on the date of the sale deed and on payment of the balance sale price. The last expression "within a period of two months" do not make sense, since it is contradicting the earlier sentence in the same paragraph. It is in consonance with the interpretation given by the learned counsel for the plaintiffs that since the defendants wanted to vacate the premises to shift their residence, they may require two months' time, if the sale deed was executed within a period of four months. For instance, if the sale deeds were to be made in January, the defendants would require time to vacate. Otherwise, it would not be reasonable to construe that the parties have agreed to part with the sale amount of Rs.18,00,000/- even after four months to give further period of two months to vacate. 12. The expression "within a period of two months" cannot take away the right of the plaintiffs. It has been clearly understood as per the terms of the contract that they would be put in possession of the property after execution of the sale deed and payment of the balance sale consideration. Therefore, the finding of the learned Subordinate Judge that the defendants are not at fault in insisting two months' period to vacate, cannot be sustained. 13. The defendants have stated in their written statement itself that the plaintiffs and their male counterparts viz., A.S.Govindaraju and T.Raghupathy have finalised an agreement of sale and the defendants agreed to convey the property. Therefore, the finding of the learned Subordinate Judge that the defendants are not at fault in insisting two months' period to vacate, cannot be sustained. 13. The defendants have stated in their written statement itself that the plaintiffs and their male counterparts viz., A.S.Govindaraju and T.Raghupathy have finalised an agreement of sale and the defendants agreed to convey the property. Further, in their written statement, they have stated that Raghupathy had dealing with the defendants by requesting the payment of Rs.10,000/- to the broker and the defendants showed the correct figures to Raghupathy in the draft sale deed and that the draft sale deed was taken up by Raghupathy and that the original documents of title were examined by the second plaintiff's husband Raghupathy and A.S.Govindaraju at the office of the defendants' counsel. It is idle to contend that A.S.Govindarajan is not competent to speak about the contract. 14. D.W.2 has also stated that Raghupathy came along with the broker to see the property and the transaction was done through one Balakrishnan and Raghupathy, who have signed as witnesses in the agreement. Raghupathy has brought the draft sale deed in March, 1995. Raghupathy had been telling D.W.2 that he had to consult his brother-in-law. Therefore, it is clear that Govindaraju, who is the son of the first plaintiff and brother of the second plaintiff, was also involved in the transaction and was fully aware of what had transpired between the parties. Hence, it cannot be stated that the persons involved in the transaction did not give evidence. 15. In P.G.TANAWADE V. G.B.KADAM ( AIR 1997 SC 463 ), the Supreme Court has held that where there is an averment in the plaint that purchaser sent registered notices to seller to execute the sale deed and where there is a further averment by buyer that as per agreement he was willing to pay the fees required for sale deed, costs of registration and balance amount of sale deed and where buyer has also deposed before the Court that he was willing to pay fees and also the balance sale amount, it was held that buyer has not only averred but also proved that he was ready and willing to perform his part of the contract. In this case also, it is seen that the plaintiffs had given notice on 13.4.1995 and that they have met the defendants, as per the admission of D.W.1, with a draft sale deed informing that they are ready and willing to perform their part of their contract and that they have pleaded in the plaint and also filed documents to show that the money was deposited in the bank. 16. In MARUTHAI,S. V. PADMINI RAMACHANDRAN (1993-2-L.W. 318), it is held that readiness and willingness can be inferred by Court by surrounding circumstances and the conduct of the parties. 17. In SANKARAN,S. AND OTHERS V. N.G.RADHAKRISHNAN (1994-2-L.W. 642), a Division Bench of this Court held that Section 16 of the Specific Relief Act, 1963 mandates that in a suit for specific performance, the plaintiff has to allege his readiness and willingness from the date of agreement to the date of sale and he must also prove the same. The agreement for which readiness and willingness is pleaded must be the agreement that is sought to be implemented and in terms thereof, and not in modification of the terms. 18. A learned Judge of this Court, in VASANTHA V. SENGUTTUVAN ( 1997 (II) MLJ 576 ), after referring to various judgments, held that plaintiff must be ready and willing to perform his part of the contract continuously from the date of agreement upto the date of hearing. 19. In H.G.KRISHNA REDDY & CO. V. M.M.THIMMIAH (AIR 1983 MADRAS 169), it is held that the plaintiff must aver and prove his readiness and willingness and it is certainly the duty of the plaintiff to have gone into the witness-box and given formal evidence that he was ready and willing to perform his part of the contract. In that judgment, it was observed that there was absolutely no evidence on the side of the plaintiff to prove that aspect. It was further held that the default of the plaintiff to enter into the witness-box was fatal to his case. In this case, as we have found earlier, P.W.1 is one of the persons who had admittedly been participating in the negotiations and dealing in the contract with the defendants and at no stage, the defendants have contended or questioned the readiness or willingness of the plaintiffs. 20. In this case, as we have found earlier, P.W.1 is one of the persons who had admittedly been participating in the negotiations and dealing in the contract with the defendants and at no stage, the defendants have contended or questioned the readiness or willingness of the plaintiffs. 20. In SMT.CHAND RANI V. SMT.KAMAL RANI ( AIR 1993 SC 1742 ), the Supreme Court held that when the purchaser is not willing to make part payment of amount within the specified time without fulfilment of some conditions which was contrary to the agreement, it was held that the purchaser is not entitled for specific performance of the contract. 21. It was contended that the plaintiffs have not come forward with clean hands, and therefore, they are not entitled for the discretionary relief. This contention of the learned counsel, in our view, is not applicable to the facts of this case. It cannot be stated that the plaintiffs have come forward with a false case. On the other hand, it is the defendants, who, after having received the legal notice, tried to suppress the receipt of the same so as to pre-empt the action of the plaintiffs. It is also seen that the defendants, on receipt of the draft sale deed, have not questioned the terms thereof. It is further stated that the defendants, having got the premises ready to shift, have insisted for a further period of two months, contrary to the terms of the agreement. Similarly, the decisions to the effect that the party knowing personally the circumstances of the case has not given evidence does not apply to the facts of this case, since we have found that P.W.1 was involved in the transaction and negotiation and completion of the agreement and carrying out of the contract. Hence, it cannot be disputed that P.W.1 personally know the facts of the case and has given evidence. 22. Hence, it cannot be disputed that P.W.1 personally know the facts of the case and has given evidence. 22. The learned counsel for the respondents relied on the judgment of the Supreme Court in INDIRA KAUR V. SHEO LAL KAPOOR ( AIR 1988 SC 1074 ), wherein, the Honourable Supreme Court has held that when the plaintiff has stated that he had deposited the sum available for sale consideration in the form of bank deposit and no question was put to him in the trial Court, no adverse inference against the plaintiffs can be drawn for not producing the pass book in disregard of the fact that neither the defendant had called upon him to do so nor had the Court ordered him to do so. In that case, the High Court as well as the trial Court found that the plaintiffs had stated that the amount had been deposited in bank. But, it was held that there was no pass book of the bank to show that the plaintiff had the aforesaid amount. It is, according to the Supreme Court, a serious error in drawing an adverse inference against the plaintiff, which, it was impermissible in view of the law declared by the Supreme Court in Mst.RAMRATI KUER V. DWARIKA PRASAD SINGH ( AIR 1967 SC 1134 ). 23. In the decision, HIS HOLINESS ACHARYA SWAMI GANESH DASSJI V. SHRI SITA RAM THAPAR (196 (II) CTC 158, the Supreme Court held that the factum of readiness and and willingness has to be traced with reference to the conduct of the parties and the attending circumstances. The Court can infer from the facts and circumstances that the plaintiff was ready, and was always ready to perform his part of the contract. 24. Applying the decisions referred by the counsel on either side, we find, in the facts and circumstances of this case, that the plaintiffs have always been ready and willing to perform their part of the contract in accordance with the terms of the agreement and they have averred, pleaded and proved the same by oral and documentary evidence. 25. It is only the defendants who had taken up a specific stand that they will give legal possession or constructive possession on the date of sale and actual possession after a period of two months. 25. It is only the defendants who had taken up a specific stand that they will give legal possession or constructive possession on the date of sale and actual possession after a period of two months. It was the real controversy in issue and was not justified in seeking two months' time, having agreed to put the plaintiffs in possession on the date of the sale deed. It cannot be the intention of the parties to pay the entire sale consideration without possession. Therefore, for the above reasons, we find that the finding of the trial Court in Issue No.2 cannot be sustained and the plaintiffs cannot be faulted in the light of the stand taken by the defendants that they were ready and willing to perform their part of the contract. The judgment and decree of the Court below are confirmed. The appeal is accordingly dismissed. No costs.

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