Judgment :- Appellant who was defendant in OS No.16371/2003 has preferred this appeal being aggrieved by the judgment and decree dated 16.8.2005 passed by the 28th Addl. City Civil Judge, Bangalore, wherein the trial court has decreed the suit of the respondent-plaintiff thereby directing the appellant-defendant to execute the sale deed in respect of the suit schedule property by receiving the balance sale consideration in terms of the agreement dated 11.12.2002 at the costs of the plaintiff and if the defendant fails to execute the sale deed, liberty is granted to the respondent-plaintiff to deposit the balance sale consideration within two months and get the decree executed in accordance with law. 2. For the sake of convenience parties would be referred to as per their status before the court below. 3. Plaintiff instituted the suit to grant a decree of specific performance of agreement of sale dated 11.12.2002 executed by the defendant, to direct the defendant to receive the balance sale consideration and to execute the sale deed in respect of the suit schedule property within time to be stipulated by the court and to deliver vacant possession of the schedule property. If the defendant fails to execute the sale deed to permit the plaintiff to deposit the balance sale consideration into court and to execute a sale deed in favour of the plaintiff by appointing a court commissioner and also to deliver vacant possession to the plaintiff. 4. The suit schedule property is all that part and parcel of immovable property bearing Corporation No.439 (West of Chord Road, 3rd Block, 3rd stage Extension) presently know as 3rd stage, 3rd block, Bangalore, consisting of ground an first floor of RCC roofing with separate water, electricity and sanitation and the property is measuring east-west 60 feet and north-south 40 feet. 5. According to the plaint averments, defendant being the absolute owner of the suit property intended to sell the schedule property for a valuable sale consideration and was in search of a prospective buyer. Plaintiff offered to purchase the schedule property and after mutual negotiation contract was concluded on 11.12.2002 and that the plaintiff agreed to purchase the suit property for a consideration of Rs. 44,61,000/- and a sum of Rs.10,61,000/- was paid as advance. Plaintiff offered to purchase the schedule property and after mutual negotiation contract was concluded on 11.12.2002 and that the plaintiff agreed to purchase the suit property for a consideration of Rs. 44,61,000/- and a sum of Rs.10,61,000/- was paid as advance. Out of which Rs.10,50,000/- was paid by means of a cheque dated 11.12.2002 drawn on Punjab National Bank, RMV Extension, Bangalore, a sum of Rs.11,000/- was paid in cash. Defendant handed over xerox copies of documents of title and also encumbrance certificate pertaining to the plaint schedule property. 6. It was agreed between the parties that sale transaction was required to be completed within four months and that the defendant was required to hand over possession of both the ground and first floor building to the plaintiff by discharging all the outgoings before registration of the sale deed. 7. It is the case of the plaintiff that since defendant was unable to perform his part of the contract within the stipulated period of 4 months, he sought extension of two more months. Accordingly, as per the endorsement dated 8.4.2003 two months time was extended and that the plaintiff was ready and willing to perform his part of the contract and still he is ready and willing to perform his part of the contract. 8. It is the specific case of the plaintiff that defendant was required to deliver vacant possession of the schedule property and even after the period was extended by two months, defendant did not take steps to evict the tenant who was in occupation of the first floor of the building and also did not vacate the ground floor which was in his possession. In the circumstances, plaintiff got issued legal notice on 2.8.2003 calling upon the defendant to complete the sale transaction by receiving the balance sale consideration. Defendant who received the notice sent a reply letter dated 18.8.2003 stating that he was ready and willing to execute the sale deed by receiving the balance sale consideration and he also fixed the date for registration in the letter as 10.9.2003. According to the plaintiff, defendant was postponing the execution of the sale deed by one reason or the other since he was unable to secure an alternate accommodation and that he was orally seeking extension of time. 9. According to the plaintiff, defendant was postponing the execution of the sale deed by one reason or the other since he was unable to secure an alternate accommodation and that he was orally seeking extension of time. 9. It is further stated in the plaint that on 20.9.2003 defendant by issuing a legal notice unilaterally terminated the agreement of sale for which a detailed reply was sent by the plaintiff on 22.9.2003 and that the defendant had also enclosed a cheque for Rs.7,61,000/- at the time of terminating the agreement which cheque was also sent back by the plaintiff to the defendant. Since defendant did not come forward to fulfil his part of the obligation, finally plaintiff got issued a legal notice on 15.10.2003 contending that the defendant is trying to create a right in favour of the third party with a malafide intention even though plaintiff was ready and perform his part of the contract. Accordingly, the suit was filed by him alleging that the defendant is postponing to execute the sale deed in order to extract more money at the instance of his son-in-law. 10. After receipt of the suit summons defendant contested the suit. According to the defendant, he admitted the execution of the agreement of sale and receipt of advance sale consideration of Rs. 10,61,000/-, he also admitted that sale transaction was required to be complete within four months from the date of the agreement. It is also his case that he was ready and willing to perform his part of the contract and that the plaintiff could not obtain the sale deed for paucity of funds with him. According to the defendant, in terms of the agreement of sale, he got evicted his tenant from the first floor and also he obtained a tenanted premises to shift his residence from the ground floor of the plaint schedule property. Though he was willing to execute the sale deed by receiving balance sale consideration as per his letter dated 18.8.2003, plaintiff did not take the sale deed since he had no money to pay balance sale consideration of Rs. 34,00,000/-. According to him, it is not the defendant who committed breach of the agreement, but it is the plaintiff since he had no money to take the sale deed in his name. According to him, suit is instituted only to harass the defendant. 34,00,000/-. According to him, it is not the defendant who committed breach of the agreement, but it is the plaintiff since he had no money to take the sale deed in his name. According to him, suit is instituted only to harass the defendant. He has denied that he and his son-in-law demanded the plaintiff to pay more consideration than agreed upon. He also denied the allegation that defendant along with his son-in-law was approaching the plaintiff orally requesting him to extend time. Since plaintiff has committed breach of contract, he cannot blame the defendant in order to get his suit decreed. According to him, he was working as Branch Manager in Karnataka State Apex Bank and he is aged about 67 years having only daughter and on account of the delay in getting the sale consideration in time, defendant is unable to sell the property. According to him, unless and until plaintiff informed his intention to pay the balance sale consideration and to purchase stamp paper and registration charges, question of calling upon the defendant to vacate the schedule property did not arise for consideration since plaintiff was not willing to take the sale deed by paying sale consideration, defendant had no other option than to terminate the agreement and in terms of the agreement of sale by forfeiting the amount as agreed upon, a cheque for Rs. 7,61,000/- was sent along with termination notice and that the plaintiff having received such notice has filed the suit thereof with false and frivolous grounds, therefore he requested the court to dismiss the suit. 11. Based on the above pleadings, following issues were framed by the trial court: 1. Whether the plaintiff proves that the defendant executed an agreement of sale dated 11.12.2002? 2. Whether plaintiff proves that he has paid an advance of Rs. 10,61,000/- out of sale consideration of Rs. 44,61,000/-? 3. Whether the plaintiff proves that he was ready and willing to perform his part of the contract under the agreement? 4. Whether defendant proves that plaintiff committed breach of contract? 5. Whether plaintiff is entitled for the relief of specific performance and delivery of vacant possession of the schedule property as sought for? 6. What order or decree? 12. 3. Whether the plaintiff proves that he was ready and willing to perform his part of the contract under the agreement? 4. Whether defendant proves that plaintiff committed breach of contract? 5. Whether plaintiff is entitled for the relief of specific performance and delivery of vacant possession of the schedule property as sought for? 6. What order or decree? 12. In order to prove their respective contentions, on behalf of the plaintiff he got himself examined as PW-1 and two other witnesses viz., S.G. Gopalaiah who has been examined as PW-2 who is the mediator to the transaction and one Venkataramaiah as PW-3 who has made an endorsement as a scribe for extension of time. Plaintiff relied upon documents Exs.P-1 to 10. On behalf of the defendant, defendant himself got examined as DW-1 and he relied upon Exs.D-1 to 6. Trial Court, after considering the oral and documentary evidence let in by the parties held issues 1 to 3 and 5 in the affirmative, issue No. 4 in the negative and ultimately suit of the plaintiff came to be decreed on 16.8.2005 thereby directing the defendant to execute the sale deed by receiving the balance sale consideration of Rs. 34,00,000/-. This judgment and decree is called in question in this appeal. 13. We have heard the counsel for the parties. 14. The main contentions of the counsel for the appellant before us are: Trial court has committed a serious error in not appreciating the evidence of PW-1 and DW-1 property. According to him, on account of the wrong appreciation of evidence of PW-1 & 2, trial court has held issues 2 & 3 in the affirmative and issue No. 4 in the negative. If the trial court had appreciated the evidence of PW-1 property and also cross-examination of DW-1, trial court could not have held issues 2 & 3 in favour of the plaintiff. According to him, judgment of the trial court is contrary to the judgments of the Supreme Court since plaintiff has failed to prove that he was ready and willing to perform his part of the contract and that he was ready with the balance sale consideration. According to him, judgment of the trial court is contrary to the judgments of the Supreme Court since plaintiff has failed to prove that he was ready and willing to perform his part of the contract and that he was ready with the balance sale consideration. He further contends that when the appellant has specifically contended that registration could not be completed on account of non-availability of funds wit the respondent herein, it was for the plaintiff to place materials before the court that he was ready with the balance consideration of Rs.34,00,000/- and that he was ready to purchase the property at his costs and that it could not be done so on account of non-performance of terms and conditions to be performed by the defendant. In other words, he contends that even though plaintiff had not let in any evidence to show that he was a man of means and that he was ready with the balance sale consideration and without considering issues 2 & 3 properly and also on account of the wrong appreciation of evidence of PW-1 and the documents produced by him trial court has held issue No.4 in the negative though the defendant has proved before the court that it is the plaintiff who had committed breach of agreement. Therefore, he requests the court to re-appreciate the entire evidence let in by the parties and set aside the findings of the trial court. 15. To support his arguments, he has relied upon the following judgments: i) SARASWATHI AMMAL Vs. V.C.LINGAM (ILR 1993 KAR.-427) ii) N.K.GIRIRAJA SHETTY Vs. N.K.PARTHASRATHY SHETTY & OTHERS (AIR 2006 KAR.-180) iii) H.P.PYAREJAN Vs. DASAPPA (DEAD BY LRS.) AND OTHERS [2006 (2) S.C.C.-496] iv) NARINDER KUMAR MALIK Vs. SURINDER KUMAR MALIK [2009 (8) S.C.C.-743] 16. Per contra, Mr.Jaiprakash Rao who was appearing for the respondent-plaintiff contends that the findings of the trial court is based on proper appreciation of oral and documentary evidence let in by the parties. According to him, plaintiff was ready and willing to perform his part of the contract and that the plaintiff could not obtain the sale deed only on account of the breach committed by the appellant, since defendant did not vacate the premises which was in his occupation, the plaintiff could not take the sale deed by paying the balance sale consideration, therefore he contends that the trial court was justified in granting decree. According to him, time was extended by two more months at the instance of the defendant-appellant and therefore time was not the essence of contract and since there is a breach committed by the defendant as he was not ready to vacate the premises, sale deed could not be obtained by the plaintiff from the defendant, therefore he requests the court to dismiss the appeal. He alternatively contends that on account of the breach committed by the defendant, even if the plaintiff has not established that he was ready with the balance sale consideration, still the trial court was justified in grating a decree for specific performance. He further contends that the question of establishing sufficient funds with the plaintiff would arise only on the defendant performing his part of the contract, therefore he requests the court to dismiss the suit. To support his arguments, he has relied upon the following judgments: i) A.I.R. 2000 BOMBAY-410 (5) ii) A.I.R. 1963 M.P.-31 (PP 144) iii) A.I.R. 2005 s.c.-3503 (9) iv) A.I.R. 1997 S.C.-463 (3) v) A.I.R. 1997 PATNA-10(3a) vi) I.L.R. 1979 KAR.-1997(6) vii) I.L.R. 2007 KAR.-4440 (7) viii) A.I.R. 1994 RAJASTHAN-259(2) ix) A.I.R. 2009 S.C. -2157 (4) x) A.I.R. 2006 SC-2172 xi) A.I.R. 2008 SC-2050 xii) A.I.R. 1995 SC-945 xiii) A.I.R. 2000 SC-2408 17. After hearing the counsel for the parties, we have to consider the following points in this appeal: 1. Whether the trial court has properly appreciated the evidence let in by both the parties? 2. Whether the plaintiff was ready and willing to perform his part of the contract? 3. Whether the defendant has committed breach of agreement even though plaintiff was ready and willing to perform his part of the contract? 4. Whether the judgment and decree of the trial court are required to be confirmed or reversed or modified? 18. Since all these points are inter-linked with each other, we would like to deal with all the points together for the sake of convenience. 19. After hearing the counsel for the parties and on perusal of the pleadings and the documents produced by the parties, we are of the opinion that the following points are not in dispute in this case: it is not in dispute that the defendant is the owner of the plaint schedule property. 19. After hearing the counsel for the parties and on perusal of the pleadings and the documents produced by the parties, we are of the opinion that the following points are not in dispute in this case: it is not in dispute that the defendant is the owner of the plaint schedule property. It is also not in dispute that the defendant had agreed to sell the property in favour of the plaintiff for a consideration of Rs.44,61,000/-. It is also not in dispute that a sum of Rs.10,61,000/-was paid by the plaintiff to the defendant as advance and that the parties have entered into a regular agreement of sale on 11.12.2002. It is also not in dispute that entire sale transaction has to be completed within 4 months from 11.12.2002. It is also not in dispute that time has been extended by two more months for completion of the agreement. It is to be noted at this stage that plaintiff contends that at the request of the defendant time was extended by two more months. But the defendant has denied that time was extended by two months at his instance. Be that as it may, extension of time by two months is not in dispute, whether it is extended at the instance of the plaintiff or at the instance of the defendant. In view of the above admitted facts, what is to be considered by us is whether the defendant has committed any breach of agreement or the plaintiff has committed breach of agreement. If the plaintiff has committed breach of agreement, even if the defendant has not fulfilled his part of the contract, whether plaintiff is entitled for a decree of specific performance and if the plaintiff was not ready and willing to perform his part or the contract, whether suit filed by the plaintiff has to be rejected even though defendant was willing to execute the sale deed. In order to ascertain these facts, we have to appreciate the oral and documentary evidence adduced by both the parties. In order to ascertain these facts, we have to appreciate the oral and documentary evidence adduced by both the parties. Though on behalf of the plaintiff three witnesses have been examined, evidence of PW-2 & 3 are not relevant to consider the above points since they have been examined only to find out that the terms were negotiated at the instance mediator Gopalaiah PW-2 and an endorsement came to be made on the back of the agreement by PW-3 Venkataramaiah. Therefore, we are of the view that there is no necessity for us to consider the evidence of PW-2 & 3 in order to consider the points which are required to be considered by us in this appeal. Therefore, we are of the opinion, by appreciating the evidence of PW-1 and DW-1 and the documents relied upon by them, we have to find out whether plaintiff was ready and willing to perform his part of he contract and whether defendant has committed breach of agreement or not. 20. Plaintiff has filed his affidavit in lieu of his examination-in-chief. Paragraphs-1 to 5 of his examination-in-chief (affidavit) is pertaining to the agreement of sale. Paragraph-6 deals with the exchange of notices and paragraph-7 deals with the termination of agreement by the defendant by got issuing legal notice dated 20.9.2003. In para-8 only plaintiff has stated that defendant did not come forward to fulfil his part of the obligation and therefore he got issued a legal notice as per Ex.P-5 and for which a reply has been sent by the defendant. In paragraph-9 it is stated that defendant is making attempt to sell the property to a third party even though he was willing and ready to perform his part of the contract. Except in one sentence in para-10 of his affidavit he has not stated in regard to his capacity to pay balance sale consideration and his readiness to pay the balance sale consideration. Except in one sentence in para-10 of his affidavit he has not stated in regard to his capacity to pay balance sale consideration and his readiness to pay the balance sale consideration. One sentence which has been stated in his examination-in-chief in regard to financial capacity is quoted as hereunder: “I have always been ready and willing to pay the balance sale consideration against the delivery of vacant possession of the schedule property in its entirety at the time of registration of the sale deed and since the defendant has committed breach of the terms of Ex.P-5, I have approached the Hon’ble Court for specific performance of the contract.” Except this one sentence he has not averred in the examination-in-chief that he was ready with the balance sale consideration of Rs.34 lacs or he had money with him to purchase the property. At this stage, it is to be remembered that the issue was framed in this regard. Issue No.3 reads as hereunder: “Whether the plaintiff proves that he was ready and willing to perform his part of the contract under the agreement?” When the defendant has stated in the written statement that plaintiff did not possess money with him to purchase the property by paying the balance sale consideration, burden is heavy on the plaintiff to show that he was ready with cash or he was ready with the balance sale consideration and that he had capacity to pay the balance consideration. Even though he has not stated in regard to his capacity to pay the balance sale consideration, in the examination-in-chief even if we presume that he was a man of means, we have to consider the cross-examination in regard to ascertain his capacity to pay the balance sale consideration. In the cross-examination of PW-1, defendant’s counsel was able to get some admissions which will go to the root of the matter. We would like to cull out certain admissions obtained by the defendant’s counsel while cross-examining PW-1: “I did not write any letter to the defendant subsequent to the date of agreement till 10.4.2003 stating that I am ready with the money. The balance consideration to be paid was Rs.34,00,000/-. The registration and other incidental charge were to be borne by me and the said registration charges was calculated at Rs.4.5 lakhs. I am a businessman in manufacturing spices. The balance consideration to be paid was Rs.34,00,000/-. The registration and other incidental charge were to be borne by me and the said registration charges was calculated at Rs.4.5 lakhs. I am a businessman in manufacturing spices. At the time of agreement of sale my turnover was Rs.1.5 crores per year. My profit in my business is about 10% to 20%. The net profit comes to around 12% to 13%. The premises where I am residing is the own house of my father. … I have got a bank account of the firm. I do not have my personal bank account. I did not write any letter to the defendant during the extended two months. I have not produced any documents to show that I had money during the said 4 months and the extended 2 months. It is true that defendant had issued a letter dated 18.8.2003 as per Ex.P-4 in reply to Ex.P-3. Subsequent to Ex.P-4 I did not write any letter to the defendant stating that I would pay him the money. I do not know whether the first floor was got vacated by the tenant in the month of March, 2003. …. I did not verify as to what was happening in the building during the said 4 months and extended 2 months. I do not know whether defendant had vacated the ground floor and went to a rented premises during the said period. …. I can purchase any other property for my residential purpose.” From the above admissions, it is clear that no material is placed before the court below by the plaintiff though he had no ready money with him he had sufficient source to purchase by paying balance sale consideration. The only grouse of the plaintiff is that defendant was required to hand over possession of ground and first floor of the schedule property. In the cross-examination, he has admitted he does not know whether the tenant of the first floor had vacated in the month of March, 2003. He is also not aware whether the defendant had vacated the ground floor and went to a rented premises during the extended period. From this answer it is clear that the plaintiff has not verified whether in terms of Ex.P-4 defendant had vacated the premises and was ready to hand over possession of the entire premises. He is also not aware whether the defendant had vacated the ground floor and went to a rented premises during the extended period. From this answer it is clear that the plaintiff has not verified whether in terms of Ex.P-4 defendant had vacated the premises and was ready to hand over possession of the entire premises. Now in order to ascertain the conduct of the defendant, it would be appropriate for us to consider Ex.P-4. Ex.P-4 is a letter addressed by the defendant to the plaintiff, it is dated 18.8.2003 which reads as hereunder: “I am in receipt of notice dated 2.8.2003 issued by Sri.A.Anil Kumar Shetty, your advocate, regarding the registration of sale deed in respect of property No.439, 3rd Block, 3rd Stage, 2nd Cross, Basaveswaranagar, Bangaloe-79. I am ready to execute the sale deed in respect of the above said property on 10.9.2003 and hand over the vacant possession o the property and all the concerned documents against the payment of Rs.34.00 lakhs only (Rs. Thirty four lakhs only) through DD/Banker’s Cheque being the remaining amount of sale consideration. This is for your kind information and needful action in the matter.” From the reading of Ex.P-4, it is clear that he was ready to execute the sale deed by handing over possession subject to the payment of Rs.34 lacs payable by the plaintiff to him and he has fixed the date for registration as 10.9.2003. From reading of Ex.P-4 it is clear to the court that defendant was willing to hand over vacant possession of the property. If the defendant was required to hand over vacant possession of the property and if he has intimated the same to the plaintiff in writing, in all fairness it was for the plaintiff to go and verify whether defendant had kept the ground and first floor vacant and whether he was capable of delivering vacant possession to him or not. In the cross-examination it is elicited that though defendant is residing in the same area, has not even visited the premises of the defendant which only infer that it was within the knowledge of the plaintiff that defendant was capable of handing over possession of the property to the plaintiff at the time of registration. Ex.P-4 is actually reply sent by the defendant fixing the date for registration to the legal notice issued by the plaintiff. Ex.P-4 is actually reply sent by the defendant fixing the date for registration to the legal notice issued by the plaintiff. If really the defendant was not willing to perform his part of the contract, he would not have sent Ex.P-4. The very fact that defendant even without approaching a lawyer has sent a reply stating that he was ready and willing to execute the sale deed would only prove that as a honest man he requested the plaintiff to pay the balance sale consideration and to take the sale deed. Since plaintiff did not obtain the sale deed as per Ex.P-5, he has terminated the agreement by sending a cheque for Rs.7,67,000/-in terms of the conditions of agreement of sale for which plaintiff has sent a reply as per Ex.P-6. 21. Now we have to examine how far the evidence of DW-1 is challenged by the plaintiff while cross-examining DW-1. After going trough the entire cross-examination, except a suggestion that plaintiff was ready and willing to perform his part of the obligation, on admission is obtained by the plaintiff. Though he has cross-examined DW-1 at length, his evidence has not been shaken by the plaintiff. 22. Now in this back-ground, we have to consider how the evidence of DW-1 has been appreciated by the trial court in order to give its finding in affirmative so far as issues 2 to 4 are concerned. So far as issues 1 & 2 are concerned, we are of the view that there was no necessity for the trial court to frame such an issue since said issues are admitted by the parties in their pleadings. As stated supra, parties have not denied the execution of the agreement of sale dated 11.12.2002. Similarly, defendant has also not denied the receipt of advance sale consideration of Rs.10,61,000/- from the plaintiff out of the total sale consideration of Rs.44,61,000/-. In view of the clear cut admission there was no necessity for us to consider the findings of the court below on issues 1 & 2. Therefore, we have to consider the findings of the trial court on issues 3 & 4 in order to find out whether the findings on those two issues are based on proper appreciation of evidence let in by the parties. 23. Therefore, we have to consider the findings of the trial court on issues 3 & 4 in order to find out whether the findings on those two issues are based on proper appreciation of evidence let in by the parties. 23. So far as issue No.3 is concerned, trial court has considered issues 3 & 4 together in paragraphs 7 to 9. Though the trial court has held that plaintiff is ready and willing to perform his part of the contract either in paragraphs 7, 8 and 9. It has not considered the evidence let in by the plaintiff to show how and in what manner he was ready and willing to perform his part of the contract. In a suit for specific performance when the defendant has taken a specific plea that defendant was unable to pay balance sale consideration and he was not ready with the balance sale consideration and when a specific issue has been framed to that effect, it was for the plaintiff to show by placing relevant material that he was ready and also willing to purchase the property. Then the question that would arise for our consideration is what is readiness and what is willingness. A mere saying by the plaintiff that he was ready to perform his part of the contract will not be sufficient. When the defendant has contended that plaintiff is not a man of means, it is for him to produce relevant materials before the court. We have already discussed the evidence of PW-1 in detail and the admissions obtained by the defendant in the cross-examination of PW-1 in regard to his capacity to pay balance sale consideration. Now it would be appropriate for us to consider his evidence in this context. Admittedly, no bank accounts are produced before the court. He is not even having a bank account in his name. What he says is that he is having bank account in the name of the firm. Now it would be appropriate for us to consider his evidence in this context. Admittedly, no bank accounts are produced before the court. He is not even having a bank account in his name. What he says is that he is having bank account in the name of the firm. Whether the firm is a registered partnership firm or un-registered partnership firm, what is the share of the plaintiff in the firm and what was the balance standing to the credit of the plaintiff in the firm, is not made known to the court by the plaintiff and he has also not let in any oral evidence to show how he could able to mobilize balance of Rs.34 lacs excluding Rs.4.5 lacs towards the costs of stamp duty and registration charges. In other words, in order to obtain the sale deed, plaintiff should have mobilized Rs.38 to 39 lacs, not even a scrap of paper is produced before the court that he had capacity to raise funds or had mobilized funds to take the sale deed. In this context, when the defendant case per Ex.P-4 has called upon the plaintiff to take the sale deed by paying balance sale consideration by fixing the date for registration as 10.9.2003, it was for the plaintiff to produce the documents. If really, defendant was not willing to perform his part of the contract, atleast plaintiff would have sent a reply to Ex.P-4 stating that defendant is unable to hand over possession of the property even though the plaintiff was ready with the balance consideration. Trial court, without considering this vital aspect and lacuna in the evidence, has held that the plaintiff was ready and willing to perform his part of the contract. According to us, the way in which the evidence is let in by the plaintiff would only shows that he had no capacity to pay the balance sale consideration, therefore he could not obtain the sale deed, in terms of Ex.P-4 wherein the defendant had agreed to hand over vacant possession by receiving the balance sale consideration. Without drawing an adverse inference against the plaintiff, due to wrong appreciation of evidence, an adverse inference has been drawn against the defendant by the court below as if the defendant was not willing to perform his part of the contract. Without drawing an adverse inference against the plaintiff, due to wrong appreciation of evidence, an adverse inference has been drawn against the defendant by the court below as if the defendant was not willing to perform his part of the contract. Considering Ex.P-4 and the evidence of DW-1 and considering the cross-examination of PW-1, we are of the opinion that the findings of the trial court on issues 3 & 4 are perverse and cannot be appreciated by this court and due to perversity we have to set aside the findings on issues 3 & 4 since the defendant was willing to hand over possession of the property and was willing to execute the sale deed in favour of the plaintiff by receiving the balance sale consideration. Considering the evidence of the plaintiff, we are of the opinion that trial court was required to draw an adverse inference against the plaintiff and not against the defendant and therefore we are setting aside the findings of the trial court on issues 3 & 4. If the findings of the trial court on issues 3 & 4 are reversed by us, then the finding on issue No. 5 automatically has to be reversed by this court without assigning any reasons as it is only a consequential in nature. Under these circumstances, we hold that plaintiff was not ready and willing to perform his part of the contract and he was ready with the balance sale consideration and was not in a position to take the sale deed even though defendant was willing to hand over possession of the property. 24. In view of our finding on appreciation of evidence of PW-1 & 2 and the documents relied upon by the parties, now we have to consider to what extent the judgments cited by the respective advocates would help their respective cases. 25. Learned counsel for the appellant has relied upon the following decisions: In the Case of H.P.Pyarejan Vs. Dasappa (dead by L.Rs) and Others, reported in (2006) 2 SCC 496 , the Apex Court has held that Section 16(c) of the Specific Relief Act mandates that the plaintiff must aver in the plaint and also establish as a fact by evidence aliunde, that he was always ready and willing to perform his part of the contract. 26. In the case of Narinder Kumar Malik Vs. 26. In the case of Narinder Kumar Malik Vs. Surinder Kumar Malik, reported in (2009) 8 SCC 743 , when the respondent did not tender original pay orders but produced only photocopies, it was held that the mere show of readiness and willingness would not discharge obligation, unless it is shown to be real and genuine. The conduct, attitude and behaviour of the purchaser can be looked into to find out as to whether he was ready and willing to perform his part of the contract. The aforesaid decisions are apposite to the facts and circumstances of the present case. 27. In the case of Saraswathi Ammal Vs. V.C. Lingam, reported in ILR 1993 Karnataka 427, it has been held that the plaintiff seeking specific performance must plead and prove that he was ready and willing to perform his part of contract continuously between the date of the contract and date of hearing of the suit. To prove himself ready and willing a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction. It is essentially a question of fact to be answered from the material on record read with the proved circumstances of the case. The burden of proving the readiness and willingness to perform his part of contract is entirely on the plaintiff and he cannot succeed in his claim for a decree for specific performance, by establishing that the vendor/defendant was avoiding to perform the contract. This court went on to say that the defendant’s failure is the cause for the suit, but to succeed in the suit, plaintiff has to prove readiness and willingness. Readiness involves proof of capacity which in turn requires proof of financial ability at the relevant point of time. It is not a mere desire but a genuine willingness. The circumstances may justify an inference that the assertion of the plaintiff as to his willingness is a mere verbal assertion and as a fact, his conduct may disclose that he was really interested in procrastination because delay to his advantage. The said decision is squarely applicable to the facts of the present case. 28. Another decision of this court in the case of N.K.Giriraja Shetty Vs. N.K.Parthasarathy Setty & Others reported in AIR 2006 Karnataka 180 is also to the same effect. 29. The said decision is squarely applicable to the facts of the present case. 28. Another decision of this court in the case of N.K.Giriraja Shetty Vs. N.K.Parthasarathy Setty & Others reported in AIR 2006 Karnataka 180 is also to the same effect. 29. Learned counsel for the respondent has referred to the following decisions in support of his contentions: In Ramachandra Kulkarni (Dead) by L.Rs 1993 Supp (3) SCC 549 and Azhar Sultana Vs. B.Rajamani & Others, reported in AIR 2009 SC 2157 , have been cited to contend that the entire amount of consideration need not be kept ready by the plaintiff, in order to prove readiness and willingness to perform the contract. There can be no second opinion on the said proposition of law, but the plaintiff must prove that he has the capacity to raise the funds to purchase the property even if he does not have the entire sale consideration ready. This has not been proved by the plaintiff in the instant case. 30. In the case of Rameshwar Prased (D) by L.Rs. Vs. Basanti Lal, reported in AIR 2008 SC 2050 , it has been held that it is not correct to refuse decree of specific performance on the ground that willingness to pay the interest is not averred whereas in the case of S.S.Mohammed Quadri Vs. Shivaraj V.Patil, JJ, reported in AIR 2000 SC 2408 . it is stated that readiness and willingness need not be stated in any specific phraseology and language. 31. In the case of Smt.Shakuntla Devi Vs. M/s Mohanlal Amrit Raj Jain Market Pali, reported in AIR 1994 Rajasthan 259 it has been stated that if mere fixation of date for execution of sale deed is indicated, then time is the essence of the contract particularly when the said date was extended from time to time and the question of payment of balance price arises only when seller has performed his part of the contract. In the said case when there was a failure by the seller to obtain income tax clearance certificate, it was held that the purchaser need not prove his financial position to pay balance price. He had merely to show continuous readiness and willingness to pay balance price only as and when appropriate action for the same was to arise. In the said case when there was a failure by the seller to obtain income tax clearance certificate, it was held that the purchaser need not prove his financial position to pay balance price. He had merely to show continuous readiness and willingness to pay balance price only as and when appropriate action for the same was to arise. The said decision is not applicable to the present case since in the present case the defendant had categorically stated that he was willing to execute the sale deed on 10.9.2003 by way of his reply vide Ex.P4 and that he was also willing to hand over vacant possession of the schedule premises. 32. In the case of Pandurang Ganpat Tanawade Vs. Ganpat Bhairu Kadam & Others, reported in AIR 1997 SC 463 , it has been held that the plaintiff not only averred in the plaint, but also stated in his evidence before the court that he has sent notices to the seller that he was willing to pay the fees required for sale deed and cost of registration an balance sale amount immediately, it was held that the buyer had not only averred but had proved that he was ready and willing to perform his part of the contract as required under Section 16(c) of the Act. However, in the instant case there is no evidence with regard to the plaintiff being ready and willing to purchase the Suite Schedule Property. In fact, no evidence with regard to the availability of balance sale consideration is let in by the plaintiff. 33. In the case of Munarma Devi @ Manoram Devi Vs. Gango Devi @ Gangia Devi & Others, reported in AIT 1997 Patna 10, all that has been stated is that when the plaintiff has made sufficient averments regarding willingness to perform her part of the contract by serving notice through advocate and was ready to pay the amount and went to the defendant’s house to make payment before filing of suit are matters pertaining to Section 16 of the Act. 34. In the case of Mushtaq Ahmed Delvi Vs. Smt.J.Dhanammal reported in ILR 1979 Karnataka 1997 what has been stated is that by virtue of Section 27 of the Urban Land (Ceiling & Regulation) Act, 1976, an agreement to sell is not rendered void nor is it a nullity. 34. In the case of Mushtaq Ahmed Delvi Vs. Smt.J.Dhanammal reported in ILR 1979 Karnataka 1997 what has been stated is that by virtue of Section 27 of the Urban Land (Ceiling & Regulation) Act, 1976, an agreement to sell is not rendered void nor is it a nullity. All that is required under Section 27 is that the vendor should apply for permission under the said Section from the competent authority and in case permission is refused the plaintiff is not entitled to specific performance of contract, but Section 27 does not prohibit any sale. The said decision is not applicable to the facts of the present case. 35. In the case of K.Gajendran Vs. Chikkathimma & Others, reported in ILR 2007 Karnataka 4440, a Division Bench of this court held that since the defendants had failed to prove that they should obtain the tippani copy of the schedule from the survey department and further had got the land poded by the department, thereby the actual area available for sale was not confirmed and the balance sale consideration payable was not worked out and therefore, the defendants could not contend that the plaintiff was not ready and willing to pay the balance sale consideration. On the facts of the said case, the court held that it was on account of default on the part of the defendants, the sale transaction was not completed. Considering the facts of the present case, the said decision is not applicable as in the instant case, the plaintiff knew the exact amount of balance consideration to be paid. 36. In the case of Aniglase Yohanna Vs. Ramlatha & Others, reported in AIR 2005 SC 3503 , the undisputed facts were that the plaintiff had not only averred that he was ready and willing to perform his part of the contract, but the balance amount of consideration was deposited in court simultaneously to the filing of the suit. Therefore, it was held that the order decreeing suit for specific performance in favour of the plaintiff would be proper. 37. Therefore, it was held that the order decreeing suit for specific performance in favour of the plaintiff would be proper. 37. Considering the fact that the judgments relied upon by the counsel of the respondent-plaintiff are no way applicable to the facts and circumstances of this case as the facts and circumstances of the present case are entirely different than the facts involved in various decisions relied upon by him, we are of the view that those judgments cited by the counsel for the respondent are of no assistance to confirm the judgment and decree of the trial court. 38. In the circumstances, the appeal is allowed. Judgment and decree of the trial court in directing the defendant to execute the sale deed and to hand over possession of the property is rejected. However, considering the fact that the plaintiff has paid a sum of Rs.10,61,000/- as advance on 11.12.2002 as the same has been made use of by the defendant, we are of the opinion that the advance sale consideration received by the defendant from the plaintiff is ordered to be refunded to the plaintiff with interest at 15% from 11.12.2002 which amount shall be deposited before the court below on or before three months from today. Considering the background of this case, we direct the parties to bear their costs.