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2003 DIGILAW 1551 (MAD)

B. Sundarambal & Others v. Jawaharlal Jain

2003-09-30

M.THANIKACHALAM

body2003
Judgment :- In a suit for specific performance, the defendant who succeeded in her defence before the trial Court, failed to sustain the said decree, when questioned on appeal and the result is this second appeal. 2. The defendant/appellant is the owner of the suit property. According to the plaintiff, the defendant entered into an agreement of sale, with the plaintiff on 19.1.1984, agreeing to sell the suit property, for a sale consideration of Rs.11,000/- and received a sum of Rs.5,000/- as advance, further agreeing to receive the balance, at the time of registration of the sale deed. The sale agreement was registered. Thereafter, the defendant had also executed a general power of attorney in favour of the plaintiff on 19.7.1985, which was also registered, where the defendant had acknowledged the sale agreement, conferring power upon the plaintiff to deal with the suit property. In pursuance of the agreement, the defendant had also handed over the original title deed for the suit property. 3. The plaintiff is ready and willing to complete the sale, whereas the defendant alone failed to do so. On the other hand, she had issued a legal notice containing false allegations, for which a suitable reply was given. The sale agreement is enforceable and under which the defendant is bound to execute the sale deed, receiving the balance of sale consideration. Since the defendant has failed to perform her duty, in terms of the sale agreement, the plaintiff was constrained to file the suit, for specific performance, as per the sale agreement dated 19.1.84. 4. The appellant/defendant opposed the suit for specific performance, alleging that the document dated 19.1.1984 is not an agreement for sale, whereas it was executed as mortgage deed, when the defendant approached the plaintiff for a loan of Rs.11,000/-. It is the further case of the defendant that she being an illiterate and ignorant woman, had only affixed her thumb impression, believing that it was only a mortgage deed and therefore, as such the document could not be enforced as an agreement for sale, which could be seen from the fact that the document does not contemplate any time, for specific performance. The appellant/defendant further contended that the plaintiff had defrauded her, taking advantage of her illiteracy and ignorance and the same was known after the discharge of the mortgage, when the original title deed was demanded and therefore, a notice was issued, which amply proves that the document is not an agreement for sale. It is the further contention of the defendant, that the entire mortgage amount was discharged by paying principal as well as interest. The fact that the transaction is only a mortgage could be seen from the chits issued by the plaintiff. The market value of the property was more than Rs.75,000/- and therefore, this defendant would not have agreed to sell the property, for a paltry sum of Rs.11,000/- as pleaded by the plaintiff. On the above grounds, inter alia, the defendant prayed for the dismissal of the suit. 5. The learned XIV Assistant Judge, City Civil Court, framing five issues, took the case for trial. During the trial, the plaintiff has been examined as P.W.1 and to contradict his evidence, the defendant has been examined as D.W.1. On behalf of the plaintiff, five documents were exhibited and on behalf of the defendant/appellant, two documents were exhibited. 6. The learned Assistant Judge evaluating the above materials, came to the conclusion that Ex.A3 sale agreement was taken by the plaintiff, when the defendant was in a distressed position, in view of the ill health of his son, as if it is a mortgage deed. The learned trial Judge has further concluded, that the plaintiff obtained Ex.A3, using his influence and taking advantage of the fact that the defendant is an illiterate and ignorant lady. It is the further finding of the trial Court that the defendant had signed in Ex.A3 under the faith and belief that she was affixing her thumb impression only in a mortgage deed and not in the sale agreement. At the same time, the trial Court has come to the conclusion, that the plea of discharge of the debt is incorrect, disbelieving Exs.B1 and B2 also, which were produced as if issued by the plaintiff, evidencing this transaction as loan transaction. Though the trial Court had disbelieved the plea of discharge, but accepted the case of the defendant otherwise, as if she has paid the interest and if at all, she has to pay only the principal amount. 7. Though the trial Court had disbelieved the plea of discharge, but accepted the case of the defendant otherwise, as if she has paid the interest and if at all, she has to pay only the principal amount. 7. On the above conclusion, the trial Judge dismissed the suit, for specific performance and granted a decree, as if it is rendered on the basis of natural justice and equity that the plaintiff is entitled to only a sum of Rs.5,000/-, which he had advanced under Ex.A3, further directing to return the original title deed, viz., Ex.A5. The plaintiff aggrieved by the decree and judgment of the trial Court, impugned the same before the Principal Judge, City Civil Court in A.S.No.185/92. 8. The learned Principal Judge, City Civil Court, while assessing the materials on record, came to the conclusion, that the trial Judge had erred in dismissing the suit against the evidence, as well as against probabilities. It is the finding of the first appellate Court that Ex.A3 is an agreement for sale, which could be enforced in a Court of law. Further, the first appellate Court has come to the conclusion, that the plaintiff is entitled to a decree for specific performance, probably since he was always ready and willing to perform his part of the contract, whereas the defendant/appellant alone had disputed the agreement, thereby failing in her duty to perform her part of the contract. In this view of the matter, the first appellate Court reversed the finding of the trial Court and granted a decree for specific performance, as prayed for, which is impugned in this second appeal. 9. This Court while admitting the second appeal, formulated the following substantial questions of law. "1. Whether the Lower Appellate Court was right in the view it took that on the strength of the document dated 19.1.1984, respondent was entitled to a decree for specific performance and 2. Whether the Appellate Court was right in decreeing the suit in the absence of the respondent establishing his readiness and willingness to perform his part of the contract." 10. Heard the learned counsel for the appellant, Mr. S. Kadarkarai and the learned counsel for the respondent, Mr. S. Gopalakrishnan. 11. The appellant/defendant had purchased the suit property on 30.5.1979 under Ex.A5, which vested the right in her favour, not disputed. Heard the learned counsel for the appellant, Mr. S. Kadarkarai and the learned counsel for the respondent, Mr. S. Gopalakrishnan. 11. The appellant/defendant had purchased the suit property on 30.5.1979 under Ex.A5, which vested the right in her favour, not disputed. Ex.A3 is an agreement for sale dated 19.1.1984, said to have been executed by the defendant in favour of the plaintiff, agreeing to sell the suit property, for a stated consideration of Rs.11,000/-. The execution of this document is more or less admitted, though the nature of the document is disputed, by the defendant/appellant. According to defendant/appellant, it is a mortgage, evidencing the loan transaction, whereas it is the case of the plaintiff/respondent that it is an agreement for sale, simplicitor, and there was no loan transaction between the parties. After the execution of Ex.A3, it seems, the plaintiff had not taken or initiated any effective steps to get a sale deed, in pursuance of Ex.A3. The defendant/appellant, who contended that Ex.A3 is a document relating to loan transaction, issued a notice, Ex.A1 on 3.12.1986, alleging that the amount borrowed under the document was discharged and therefore, the holder of Ex.A3 should return the title deed viz., Ex.A5, raising other grounds also. The plaintiff, then woke up and issued a reply on 20.1.1987, as seen from Ex.A2, reiterating that Ex.A3 is an agreement for sale, demanding the execution of the sale also, which evoked no response and therefore, as said above, he filed the suit, though failed before the trial Court, succeeded in the first appeal and hence the decree and judgment of the first appellate Court are impugned. 12. A reading of Ex.A3, as such makes it crystal clear that it is an agreement for sale, under which the defendant intended to sell the property to the plaintiff, where the plaintiff had also agreed to purchase the property. If this document is to be construed otherwise, then in my opinion, the initial burden is upon the defendant, to prove so, bringing to surface clinching circumstances, at least that she was defrauded or cheated or her signatures or thumb impressions as the case may be, were obtained by the plaintiff, using undue influence, taking his dominant position, when the defendant was in a distress condition. If these things are proved, prima facie, to certain extent, then it is for the plaintiff, to establish that Ex.A3 is an agreement for sale, intended to be acted upon so, and in pursuance of the same, he was always ready and willing to perform his part of the contract, whereas the defendant alone had failed to perform her part of the contract, thereby impelling this Court, to extend the equitable relief in his favour. 13. The learned counsel for the appellant Mr.S. Kadarkarai submitted that the surrounding circumstances in this case, amply established the fact, that Ex.A3 was not signed by the defendant, understanding as the same is one for sale agreement, to be enforced, which was properly appreciated by the trial Court, but overlooked by the first appellate Court. It is the further submission of the learned counsel for the appellant, that there is no averment in the plaint regarding the readiness and willingness to perform the contract by the plaintiff, within the reasonable time. These things would show as per the submission that Ex.A3 transaction was only as loan transaction, not intended to be enforced, as agreement for sale. The learned counsel further submits that even as per the evidence of P.W.1, the essential ingredients, contemplated under Section 16(c) of the Specific Relief Act were not complied with, and therefore, even in the absence of denial in the written statement by the defendant regarding readiness and willingness, the suit must fail, but unfortunately, the appellate Court has not properly considered the evidence, thereby rendered a judgment, perverse in nature, which requires setting aside. It is the further submission of the learned counsel for the appellant, that an illiterate lady, who does not know to read and write, was defrauded by the money lender, viz., the plaintiff, taking advantage of the pathetic condition of the defendant, who was badly in need of money, to meet the medical expenses of her son and using the dominant position, in order to derive unfair advantage, a mortgage is converted as an agreement for sale and in this view also, the suit for specific performance is not maintainable. 14. 14. The learned counsel for the respondent/plaintiff would contend, that there are in built or intrinsic evidence in Ex.A3 itself, to conclude unhesitatingly that this is an agreement for sale, intended to be acted upon, which was acknowledged by the plaintiff, at later point of time also and therefore, branding the same or labeling the same as mortgage, is untenable, which was correctly noted by the first appellate Court, decreeing the suit, reversing the trial Court's finding. It is the further contention of the learned counsel for the respondent/plaintiff, that the means of the plaintiff, his readiness and willingness were not challenged and therefore, the question of dismissing the suit, for the alleged non compliance of Section 16(c) of the Act, would not arise for consideration. To appreciate the above case and counter case, we have to see the pleadings in this case then only, that could be properly applied, to fit in with law, to reach the just conclusion. 15. Section 16 (c) of the Specific Relief Act mandates, 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 the terms of performance of which has been prevented or waived by the defendant, cannot enforce the specific performance of a contract, in his favour. As rightly pointed out by the learned counsel for the appellant, I feel this mandatory provision is not strictly complied with, though there are certain averments. Paragraph-7 of the plaint reads, "... that he is ready and willing to complete the sale on his part". Nowhere in the plaint, it is stated that the plaintiff was anxious to obtain a sale deed, in pursuance of the sale agreement, but the defendant alone failed to perform the same or evaded or postponed, under some pretext or otherwise. Even in the cause of action paragraph, it is not even stated giving the dates, that the cause of action had arisen on the dates of demands for the execution of the sale deed. Therefore, in my opinion, the plaint is elegantly silent regarding the steps said to have been taken by the plaintiff to take the sale deed, in pursuance of the sale agreement. Therefore, in my opinion, the plaint is elegantly silent regarding the steps said to have been taken by the plaintiff to take the sale deed, in pursuance of the sale agreement. Admittedly, till the defendant had issued a notice, the plaintiff had not moved even an inch, to perform his obligation viz, in this case, to take a sale deed, and register the same, in pursuance of Ex.A3. When the plaint itself is silent, regarding the above aspect, there was no necessity for the defendant, to say that the plaintiff was not ready and willing to perform his part of the contract throughout. Only, in this way, it seems to my mind, that the alleged readiness and willingness of the plaintiff, was not challenged in the written statement. That does not mean, that the plaintiff is relieved of his duty, to plead and prove the ingredients, required under Section 16(c) of the Act. The absence of plea, whether, would disentitle the plaintiff from getting a decree for specific performance, will be decided at later point of time, after giving a finding regarding the enforceability of Ex.A3. 16. On behalf of the plaintiff, to prove the execution or the genuineness of the agreement, no witness has been examined, except the plaintiff. Therefore, the learned counsel for the appellant seeking aid from the decision in P. Retnaswamy v. A.Raja and another (2001 (3) L.W.603) submitted that, at least one of the witnesses ought to have been examined, to prove the genuineness of the agreement, and the non examination of the witnesses would disentitle the plaintiff, in getting a decree for specific performance. In the case involved in the above decision, it seems, the plaintiff had pleaded one agreement and let in evidence, more or less projecting a new agreement or substituting entirely a new agreement. Therefore, this court had held in that case, it is the duty of the plaintiff to prove the genuineness of the agreement and examine at least one of the witnesses, to prove the execution thereof and the failure to do so, will result, in finding no merit in his case. This principle could not be extended, as such in our case, because of the fact, it is the consistent case of the plaintiff regarding the agreement, as averred in Ex.A3, in the pleadings as well as at the time of giving evidence also. This principle could not be extended, as such in our case, because of the fact, it is the consistent case of the plaintiff regarding the agreement, as averred in Ex.A3, in the pleadings as well as at the time of giving evidence also. In view of the admitted fact that Ex.A3 was executed by the defendant, to prove its execution or its genuineness as the case may be, no attester need be examined and law does not mandate to prove an agreement, at least one of the attesters should be examined, the further fact being, it is not a document, to be attested under law. Therefore, the above ruling will not come to the aid of the defendant in this case. 17. From the reading of the written statement, it is seen that it is the specific case of the defendant, that the plaintiff had defrauded her, taking advantage of her illiteracy and ignorance and therefore, the document in which she had signed, believing as mortgage, could not be enforced. I am unable to find any specific pleadings, such as fraud, undue influence or some kind of dominant position said to have been exercised by the plaintiff and what is the distress condition of the defendant if any, to subscribe her thumb impression in Ex.A3, believing as mortgage, though the document in its term, is an agreement for sale. In the absence of specific plea regarding undue influence, misrepresentation, etc., it is impossible to construe that the plaintiff might have defrauded the defendant, while advancing the amount, instead of taking mortgage, obtained sale agreement. The evidence available on record would suggest that this defence in this case is unacceptable and unbelievable. The very fact that the defendant is an illiterate lady, will not take us automatically to the conclusion, that the plaintiff defrauded her or in order to obtain unfair advantage, extracted Ex.A3, without disclosing the contents or nature of the document. In the plaint, the plaintiff describing the sale agreement, had further pleaded that on 19.7.1985, the defendant also had executed a general power of attorney in favour of him, wherein she acknowledged the sale agreement dated 19.1.1984. Those allegations are not specifically denied. Even the execution of the general power of attorney is not disputed. That document is exhibited as Ex.A4. Those allegations are not specifically denied. Even the execution of the general power of attorney is not disputed. That document is exhibited as Ex.A4. Since the execution of this document is not questioned, the further fact being, it is a registered document, recitals therein could be safely relied on. 18. Under Order VIII Rule 5 C.P.C. - every allegation of fact in the plaint, if not denied specifically or necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted. It is the duty of the defendant, if she wants to dispute a document, that too when it is pleaded specifically in the plaint, she should deny the same specifically wherever there was a reference, regarding the sale agreement. When this fact is known, as represented in the notice, as well as pleaded in the plaint, the defendant has not questioned Ex.A4 or the recitals therein. It is not the case of the defendant that this is also a document evidencing the loan transaction or she affixed her thumb impression under some impression and therefore, the recitals therein should not be taken into consideration. In this view, I conclude, the recitals in Ex.A4 should be taken as the admission of the defendant regarding the sale agreement. 19. Under Ex.A4, the defendant had acknowledged the sale agreement dated 19.1.1984, for which there is no explanation. Therefore, it is futile on the part of the defendant, to contend that she had no knowledge about the sale agreement, whereas she signed in Ex.A3, under the belief that it is only a mortgage deed. If the plaintiff had defrauded the defendant, and obtained Ex.A3, then at least when Ex.A4 was executed, the defendant should have questioned the act of the plaintiff, what for this General Power of Attorney is being taken, why there is a mention about the previous document, labeling the same as sale agreement. It seems there was no murmur or demur at the time of execution of Ex.A4, which should prompt anyone to say, that Ex.A3 is an agreement for sale, and that is why at a later point of time also, the defendant had acknowledged the same and there cannot be any other view in this matter. 20. It seems there was no murmur or demur at the time of execution of Ex.A4, which should prompt anyone to say, that Ex.A3 is an agreement for sale, and that is why at a later point of time also, the defendant had acknowledged the same and there cannot be any other view in this matter. 20. The defence of the appellant is that she approached the plaintiff for a loan of Rs.11,000/- and the plaintiff also agreed to lend the same. Generally, loans are obtained or borrowed to meet the urgent necessities and unavoidable expenses. Therefore, the borrower i.e. the debtor, always should receive the entire debt, if not paid, should have insisted for the payment of the entire loan amount. Then only in the ordinary circumstances, a debtor would execute the document, evidencing the said loan transaction, mentioning the amount also. If this principle is applied in this case, the irresistible conclusion must be, Ex.A3 could not be termed as mortgage deed. D.W.1 says that she was badly in need of money and that is why, she had approached the plaintiff, for the said amount. If that is the case, the defendant should have received the entire amount of Rs.11,000/-, and she would not have allowed any amount to be paid later on. But, contrary to this general conduct, the defendant would say, that only a sum of Rs.5,000/- was paid, but the plaintiff who promised to pay the balance, failed to pay the same at later point of time, which appears to be fertile imagination of the defendant and I find no iota of truth in this contention. Assuming that the plaintiff promised to pay the amount at later point of time, when not paid, immediately i.e. at least within 1 or 2 months, the defendant ought to have questioned the plaintiff, demanded the balance, and on his failure, should have issued a notice forthwith. But admittedly, till the date of Ex.A1 i.e. 3.12.1986, for roughly two years or so, she had not taken any steps, which would belie the defence, as an unadulterated lie. Since Ex.A3 was executed as an agreement of sale, it recites the payment of Rs.5,000/- as advance, saying further, the balance amount of Rs.6,000/- will be paid at the time of registration, stands to reason to believe. Since Ex.A3 was executed as an agreement of sale, it recites the payment of Rs.5,000/- as advance, saying further, the balance amount of Rs.6,000/- will be paid at the time of registration, stands to reason to believe. The first appellate Court considering this fact in its proper perspective, had come to the conclusion that Ex.A3 must be the sale agreement, intended to be acted upon and I find no contra acceptable evidence, to take contra view. 21. On the basis of illiteracy and ignorance, to nullify the effect of Ex.A3, the learned counsel for the appellant very much relied upon certain decisions of this Court as well as the Apex Court. In Thirumalai Vadivu Ammal v. Muthammal ( 1999 (2) L.W. 459 ), this Court has taken the view that an illiterate woman signed in a document, when her mind did not accompany her thumb impression or signature, then that document is liable to be set aside. The case involved in the above decision relates to a settlement deed, where there was a specific plea of undue influence, for which materials were available, in addition to some more evidence to prove that the executant therein had no proper vision and her hearing was also impaired. In that view of the matter, it was held, that the plea of the plaintiff in that case is non est factor and the plaintiff being an illiterate woman, the good faith and genuineness of the transaction should be proved only by the defendants. In this case, except the fact that the defendant is a lady, unable to read and write, there is no evidence worthy of credence, except the ipsi dixit of D.W.1, to conclude that she is ignorant about the worldly affairs or she was prevented from knowing things by any deceitful method. In this view of the matter, I am of the view, the above ruling is of no use, to advance the case of the defendant to terminate Ex.A3 as unenforceable. 22. In Mrs. Sethani v. Bhana ( AIR 1993 SC 956 ), the Apex Court of this land had held, when the purchaser was in a position to dominate and take advantage over another, then the onus lies on him, to prove that the sale deed was not executed under undue influence. 22. In Mrs. Sethani v. Bhana ( AIR 1993 SC 956 ), the Apex Court of this land had held, when the purchaser was in a position to dominate and take advantage over another, then the onus lies on him, to prove that the sale deed was not executed under undue influence. In that case also, it seems the vendor was old, blind, illiterate and a tribal woman, totally at the mercy of the respondent, with whom she was living till her death. In that situation, the vendor had absolute control over the old illiterate lady and therefore, he had the dominant position also, to control the old lady and in that process, using undue influence, it seems a sale deed was taken. Considering those facts and other attending circumstances of the case, the Apex Court had ruled, that the onus lies on the vendor to prove that the sale deed was not executed under undue influence, which is of no use in our case, because of the fact, nowhere in the written statement as aforementioned, it is the case of the defendant, that she was compelled to execute the sale agreement viz., Ex.A3 under undue influence. 23. In Chidambaram Pillai & Others v. Muthammal, (1993(1)L.W.466), a Division Bench of this Court had held that the special cloak of protection applied to pardanashin woman has to be applied to illiterate women as well. Placing reliance on this decision, the learned counsel for the appellant would submit, that the illiterate defendant was cheated by the plaintiff, for which I find no evidence, except the argument advanced by the learned counsel. Further, in view of the Apex Court's ruling in Hans Raji v. Yosodanand ( 1996 7 SCC 122 ), this principle could not be automatically extended to all illiterate women. The Apex Court in the above ruling has held, when there is no evidence to show that the illiterate lady was suffering from any ignorance or illiteracy or mental deficiency, she could not be compared to pardanashin lady and therefore, the protection extended to those categories, could not be extended to an illiterate woman. In this ruling, it is also further held, that the non examination of attesting witness to the sale deed, is of no consequence, the fact being, sale deed does not require attestation, which could very well be extended to Ex.A3 also. In this ruling, it is also further held, that the non examination of attesting witness to the sale deed, is of no consequence, the fact being, sale deed does not require attestation, which could very well be extended to Ex.A3 also. Therefore, as said above, the non examination of the attesting witness, in this case, will not weaken the case of the plaintiff or in other words, it will not strengthen the defence also. 24. Ex.A3 is a registered document and the defendant and plaintiff appeared before the Registrar, had admitted the execution of the document also. Thereafter, till the date of Ex.A1, it was not challenged. The initial burden is upon the defendant to prove that she affixed her thumb impression, in this document, without knowing its content, and under the faith that this is a mortgage deed or evidencing loan transaction. If that is so, it must be known to the attesters by name Maharajan and Kumar, who appear to be close to the defendant. By examining at least one of the attesters, irrespective of the burden of proof, even the defendant would have very well established, that the transaction was only a loan transaction and there was no agreement or any intention, for the execution of the sale agreement intending to sell the property. The failure on the part of the defendant, to examine any other witness, including the attesters or document writer, would suggest, that this document was intended to be acted upon only as sale agreement, and not as mortgage deed and that is why, when it recited that the plaintiff had paid a sum of Rs.5,000/- as advance, it was not protested and not only that, the defendant had also not initiated any action for receiving, the balance of alleged loan amount also. 25. Ordinarily, if a debtor borrows amount from a creditor executing a mortgage deed, it is not necessary, that the original title deed should be handed over. In this case, admittedly, the original title deed for the suit property viz., Ex.A5 was handed over to the plaintiff, as spoken by him, only at the time of execution of this document, suggesting that only with the intention of selling the property, the defendant should have handed over the original title deed also, which was well considered by the first appellate Court, not properly considered by the trial Court. Viewing the case from this angle also, the reasonable and unavoidable conclusion that could be drawn by any court is that, Ex.A3 is a sale agreement and not a mortgage deed. 26. The learned counsel for the appellant submits that the properties in and around the suit property, are having higher market value and the suit property, at the relevant period, would have fetched, not less than Rs.75,000/- and therefore, the defendant would not have executed a sale agreement, agreeing to sell the property for a pittance of Rs.11,000/-. To prove that at the relevant period, in and around the suit property, properties were selling at the rate quoted by the defendant, there is no scrap of paper and I should say, no oral evidence also. Hence, on the basis of the market value, which is not proved, I am unable to fix the seal of mortgage over Ex.A3, whereas I should read as it reads viz., sale agreement. 27. The appellant's case is, that she had signed the document or affixed her thumb impression, believing that it was only a mortgage deed. To buttress the above evidence, aid was sought from Exs.B1 and B2. We find some reference regarding these chits, at paragraph 5 of the written statement, which says, what was executed by the defendant was mortgage deed and not an agreement for sale, could be well founded by the chits issued by the plaintiff, showing the balance amount, towards principle and interest till 24.11.1986 due on the mortgage. Rightly in my opinion, both the courts below have disbelieved the case of the defendant, regarding Exs.B1 and B2 and that is why the learned counsel for the appellant also failed to advance any substantial argument on the basis of Exs.B1 and B2, to label Ex.A3 as mortgage. The falsity of the defence could be seen from the perusal of Exs.B1 & B2, whether it is proved or not. 28. It is not the case of the defendant that these chits were issued by the defendant only to defraud the defendant and according to plaintiff these documents are genuine one, though not proved. Ex.B.1 says the balance as Rs.28,530/- and Ex.B2 says the balance as Rs.29,545/-. 28. It is not the case of the defendant that these chits were issued by the defendant only to defraud the defendant and according to plaintiff these documents are genuine one, though not proved. Ex.B.1 says the balance as Rs.28,530/- and Ex.B2 says the balance as Rs.29,545/-. If these documents are to be relied on, to prove Ex.A3 is a mortgage deed, then the plaintiff should admit, that she had received Rs.11,000/- as principal amount, giving the rate of interest, then calculating the principal and interest, to the extent of the amounts mentioned in Exs.B1 & B2. In this regard, there is no plea and evidence. Therefore, it seems only in order to make out a case, if possible, to overcome the difficulty of Ex.A3, on the ill advise or otherwise, the defendant had taken a stand, as if Ex.A3 is a mortgage deed for which purpose, Exs.B1 and B2 were concocted, which were rightly rejected by the courts below. I have pointed out these things, only to expose the defendant, how she has not projected the real case before the courts below, whereas she wanted to take advantage, by creating some doubts, in the minds of the court to negative the discretionary relief. Thus, settling Ex.A3 is an agreement for sale, now we have to see whether the plaintiff was/is always ready and willing to perform his part of the contract, if so, thereby inducing the Court to grant a decree for specific performance. 29. The sale agreement came into being on 19.1.1984 and it does not contemplate time for performance. It says the plaintiff has to pay the balance of Rs.6,000/- and to take sale deed at his expenses, including registration. Thereafter alone, the obligation on the part of the defendant comes viz., delivering possession of the property without any obstruction. It further recites, if there is delay in execution of the document, or in handing over possession of the property, by paying a sum of Rs.6,000/-compulsory registration also could be done. It does not say, the possession should precede before the registration of the document, whereas it is specific that the possession should follow after the registration of the document. It further recites, if there is delay in execution of the document, or in handing over possession of the property, by paying a sum of Rs.6,000/-compulsory registration also could be done. It does not say, the possession should precede before the registration of the document, whereas it is specific that the possession should follow after the registration of the document. Therefore, handing over of possession or not handing over of possession cannot be a ground for the plaintiff, for the non-preparation of the sale deed, in order to have it registered, paying the balance of sale consideration, even compulsorily. As such the plaintiff was satisfied about the market value of the property, about the title of the defendant, about the nil encumbrance and therefore, there is nothing on the part of the defendant, to perform the contract and if at all, her performance is to execute the sale deed at the request or on demand by the plaintiff viz., the agreement holder. Therefore, it is incumbent upon the plaintiff to prove that within the reasonable time, since time has not been fixed for performance, he requested the vendor to execute the sale deed, but refused to do so under some pretext or otherwise, thereby evading the responsibility and the liability. If the above aspects are not proved, I am of the opinion, that the plaintiff should be non suited, for his non readiness and non willingness to take the sale deed, within the reasonable time. True, time is not the essence of the contract, but that does not mean that when there is no time limit fixed for the performance, the agreement holder should make the vendor to wait, for an unlimited period, unmindful of the day-to-day escalation of the price, in respect of urban properties. In this view, though the agreement does not contemplate time bound execution of the sale deed, it is reasonably expected, that the performance should be done within the reasonable time, failing which one can safely conclude that the vendee was not willing to perform his part of the contract, thereby committing laches also, in postponing the execution of the sale deed, in order to derive unfair advantage by the escalation of the market value, thereby depriving the land owner, regarding the market value, compelling him/her to sell the property, as agreed elsewhere. In this view, for such a person, the discretionary relief should be negatived. On this basis, we have to see the conduct of the plaintiff and his readiness and willingness as contemplated under Section 16 of the Specific Relief Act, 1963. 30. I have already pointed out about the absence of pleadings in the plaint regarding the plaintiff's readiness and willingness from the day one of the agreement. Nowhere, in the plaint, the plaintiff whispered that he requested the defendant to execute the sale deed, whereas the defendant alone evaded or postponed or refused to execute the sale deed. After waiting for a reasonable time, the defendant alone had issued notice to the plaintiff, labeling Ex.A3 as if it is not an agreement for sale, whereas it is a document evidencing the loan transaction. For the notice Ex.A1, when the plaintiff had issued reply notice, there also he failed to say, though he had demanded the execution of the sale deed, the defendant failed to do so and thereby avoiding the execution, the notice was issued or some like that. The absence of such pleadings regarding the actual date of demand for the execution of the sale deed, prompts me to think, though the plaintiff had obtained Ex.A3, he never took any serious steps, to enforce the agreement, thereby showing though it is an agreement for sale, it was not intended to be acted upon. Only, in this way, if at all it could be said Ex.A3 might be a document evidencing the loan transaction, but not otherwise, as adverted by me supra. Only on the basis of the surmises and conjectures, as did by the trial Court, I am unable to say clinchingly that Ex.A3 was not an agreement for sale, whereas it came into existence, evidencing the loan transaction. Even ignoring the absence of material pleadings, as contemplated under Section 16(c) of the Specific Relief Act, we have to see whether any evidence available, at least, in this regard, to grant the discretionary relief to the plaintiff. 31. The plaintiff is a money lender. Therefore, he would not have had the difficulty of finance in taking the sale deed. Even if he had the intention to purchase the property, he ought to have purchased the same, by an out right sale, instead of going for an agreement. The payment of balance of Rs.6,000/- is not a hard task. The plaintiff is a money lender. Therefore, he would not have had the difficulty of finance in taking the sale deed. Even if he had the intention to purchase the property, he ought to have purchased the same, by an out right sale, instead of going for an agreement. The payment of balance of Rs.6,000/- is not a hard task. Despite the fact, the plaintiff entered into an agreement paying a sum of Rs.5,000/- retaining the balance, which would suggest to certain extent, that though Ex.A3 was an agreement for sale, the same was not intended to be acted upon and that is why he kept quite, without any positive movement, till Ex.A1 emanated from the defendant. The plaintiff as P.W.1 also failed to give evidence, about his readiness and willingness regarding the performance of his part of the contract, which was not prevented otherwise. If he had been ready and willing to perform his part of the contract, at least, he ought to have purchased the stamp papers, engrossed the sale deed and requested the defendant to come to the registrar's office to register the document, after paying the balance of the sale consideration. These things have not been done admittedly by the plaintiff. As P.W.1, the plaintiff reiterated the execution of Ex.A3, payment of Rs.5000/- and the future activities contemplated under Ex.A3, including the receipt of Ex.A5. Then he has deposed that the suit has to be decreed, since he is willing to pay the balance of sale consideration. Nowhere in his deposition also, he has whispered, about the demand if any made by him, for the execution of the sale deed, or any concrete steps taken by him to purchase stamp papers to engross the sale deed or any demand made to the defendant, for the completion of the sale deed. Therefore, the oral evidence of P.W.1 is very much lacking, to fulfill the conditions contemplated under Section 16(c) of the Specific Relief Act, which says - 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, which should follow, the contract cannot be enforced in his favour. 32. The courts below have not concentrated very much about the readiness and willingness of the plaintiff, to enforce the contract and grant the discretionary relief. 32. The courts below have not concentrated very much about the readiness and willingness of the plaintiff, to enforce the contract and grant the discretionary relief. Both the courts have concentrated very much only upon Ex.A3 to find out, whether it is an agreement for sale or a document evidencing the loan transaction. The trial Court concluding that Ex.A3 is a document evidencing the loan transaction, came to the conclusion, that the suit for specific performance is not enforceable and failed to give a finding in the alternative, whether the plaintiff was ready and willing to perform his part of the contract. The first appellate Court, though reversed the finding of the trial Court, concluding that Ex.A3 is an agreement for sale, failed to give a finding, as rightly submitted by the learned counsel for the appellant, whether the plaintiff was ready and willing to perform his part of the contract and in this way, the first appellate Court has committed an error in granting a decree for specific performance, though not committed an error in concluding that Ex.A3 is an agreement for sale. The fact that Ex.A3 is an agreement for sale and it could be lawfully enforceable alone, is not sufficient to grant a decree for specific performance, since certain obligations and liabilities are to be performed by an agreement holder, which were not performed by the plaintiff to the satisfaction of the court, as narrated above by me. In this view, I conclude the plaintiff is not entitled to a decree for specific performance and the suit for specific performance must fail, as concluded by the trial Court, though not for the reasons assigned by it, but on some other grounds. 33. The trial Court applying the principle of equity, considering the fact, that the payment of Rs.5000/- not discharged, directed the defendant to pay the same to the plaintiff. Under Section 22 of the Specific Relief Act, unless the refund of money has been specifically claimed, ordinarily, the Court is not bound to order refund of the money. If that section is applied in its strict sense, the plaintiff may not be entitled, even to get the refund of amount, whether it is a loan amount or advance paid by him. The agreement had come into existence in the year 1984. If that section is applied in its strict sense, the plaintiff may not be entitled, even to get the refund of amount, whether it is a loan amount or advance paid by him. The agreement had come into existence in the year 1984. By the refusal of the specific performance, if the plaintiff who had advanced a sum of Rs.5,000/-, which is not admittedly discharged, is compelled to file a suit for return of the amount, it will take another decade, thereby compelling the parties to spend their lifetime in the Court. On the other hand, if the amount already paid by the plaintiff is ordered to be refunded, with reasonable interest, then further litigation could be avoided, and the parties also will be benefitted to the major extent. In this view, as rightly did by the trial Court to some extent, I am inclined to modify the decree granted by the trial Court. Though it was contended on behalf of the appellant/s, that interest was paid, to prove the same, there is nothing on record except the unacceptable evidence of D.W.1. Therefore, I conclude, that the plaintiff, who had parted away a sum of Rs.5,000/- under Ex.A3, is entitled to refund of the same, with reasonable interest, at 9% per annum from the said date, till payment. To the above said extent, the trial Court's decreed is to be modified. For the foregoing reasons, though I have decided, that Ex.A3 is an agreement for sale, the first appellate Court was not right in decreeing the suit, in the absence of establishing the plaintiff's readiness and willingness, to perform his part of the contract and the substantial questions of law are answered accordingly. The result, therefore is, the decree and judgment of the first appellate Court is set aside and the decree and judgment of the trial Court is restored and modified, granting a decree in favour of the plaintiff, directing the appellant(s)/defendant(s) to pay a sum of Rs.5,000/- with interest thereon at 9% per annum from the date of Ex.A3 till the date of payment and on payment, the appellants are entitled to get back the original title deed viz., Ex.A5. Considering the peculiar nature of the case, I order the parties to bear their costs, throughout.