Judgment :- 1. This appeal is filed by the plaintiff in O.S.No.8621/1995 on the file of XI Addl. City Civil Judge, Bangalore being aggrieved by the judgment and decree dated 31-10-2003 insofar as dismissal of the relief of specific performance. 2. The material facts of the case leading up to this appeal with reference to the rank of the parties before the trial Court are as follows: O.S.No.8621/1995 was filed by the appellant herein against the respondents-defendants-1 to 3. Defendants-2 & 3 are the children of defendant No.1 and they constitute the joint family. Defendant No.1 was the kartha of the joint family. The joint family own premises bearing No.17/1 situated at 4th cross, Shankarapuram, Bangalore-4 morefully described in the schedule. The joint family incurred a loan in the State Bank of India, Shankarapuram Branch and also raised a loan from one Sri H L Sridhara Murthy as the joint family has been badly in need of some funds for their legal necessity and family benefit. Hence, the defendants offered to sell the schedule property and the plaintiff offered to purchase the same and agreement of sale was executed in that behalf. It is also averred that defendant No.1 had entered into an agreement of sale with one Sri M S Palani Chamy and received an advanced of Rs.1,67,000/- and out of the said amount, defendants discharged the mortgage loan in favour of H.L. Sridhara Murthy by means of registered document dated 18-1-1992 and the said M.S. Palani Chamy agreed to give up his right, title and interest acquired under the agreement by receiving back the advance amount paid by him. At the instance of the said M.S.Palani Chamy, defendants herein entered into an agreement of sale with the plaintiff on 10-11-1994 agreeing to sell the schedule property in favour of the plaintiff free of all encumbrances, for a valuable consideration at the rate of Rs.650/- per sq.ft. and the total amount works out to Rs.20,28,000/-. At the instance of the said M.S.Palani Chamy, defendants herein entered into an agreement of sale with the plaintiff on 10-11-1994 agreeing to sell the schedule property in favour of the plaintiff free of all encumbrances, for a valuable consideration at the rate of Rs.650/- per sq.ft. and the total amount works out to Rs.20,28,000/-. The defendants received from the plaintiff in all, a sum of Rs.9,55,000/- as advance on various dates, out of which, defendants have received a sum of Rs.3,10,000/- by way of Pay Order issued by the Indian Bank, Ulsoor Branch infavour of defendant-1, a sum of Rs.90,000/- was paid by means of a cheque bearing No.850505 drawn on Indian Bank, Ulsoor Branch and a sum of Rs.2 lakhs was paid to M.S.Palani Chamy for and on behalf of the defendants in full and final settlement of the claim under the agreement dated 4-1-1992 while canceling the agreement by means of Pay Order No.575954 issued by the Indian Bank, Ulsoor Branch, a sum of Rs.3 lakhs was paid by means of a Pay Order issued by the State Bank of India, Rajajinagar Industrial Estate Branch bearing No.528943 dated 9-11-1994 and a sum of Rs.55,000/- was paid in cash, in all, total amount of Rs.9,55,000/- was paid to the first defendant towards part consideration of Rs.20,28,000/-. The defendants agreed to execute the sale deed and register the same within two months from the date of the agreement. Since the defendants committed breach of the contract, the plaintiff issued a notice claiming that he is ready and willing to perform his part of the contract and that he should execute the registered sale deed as per the agreement dated 10-11-1994. Since the said request was not heeded to, suit was filed for the following reliefs: “Wherefore, the plaintiff prays that this Hon’ble Court may be pleased to pass a judgment and decree for a specific performance of the contract dated 10-11-1994 directing the defendants or anybody claiming under the defendants in any manner whatsoever, to execute the registered sale deed in respect of the suit schedule property in pursuance of the agreement dated 10-11-1994 and deliver the vacant possession of the same to the plaintiff and receive the balance sale consideration. Alternatively, the plaintiff prays that in the event if this Hon’ble Court were to come to the conclusion that the specific performance of the contract is impossible, this Hon’ble Court may be pleased to direct the defendants to refund the advance amount of Rs.9,55,000/-together with interest at 24% p.a. and also damages of Rs.1,00,000/-and there may be a decree for the costs of the suit.” 3. Thesuit was resisted by the first defendant who is the father of defendants-2 & 3. However, he admitted the averments made in the plaint that suit schedule property was the joint family property and he was the Karta of the joint family and the averment that the plaintiff discharged the debt of the defendants and made various payments is denied. It was also denied that defendant No.1 had agreed to sell the suit schedule property for a consideration of Rs.20,28,000/- and that he received Rs.9,55,000/- as advance on various dates as averred in the plaint. Further, the averments that as per the agreement, defendants have agreed to register the sale deed within sixty days from the date of agreement after obtaining clearance from the Income Tax and after discharging the loan in favour of State Bank of India and defendants did not perform their part of the contract are denied. It is only the first defendant who has received the said amount without the consent of other defendants. The first defendant had informed the plaintiff that he is going to sell the share of first defendant, plaintiff did not come forward to take the schedule property. Defendants-2 & 3 filed O.S.No.9049/2006 before the Court for partition and separate possession of the properties including the schedule property and to declare that the agreement of sale dated 10-11-1994 is not binding upon them. It is also averred that there is no cause of action to file the suit and the suit is liable to be dismissed. 4. The defendants-2 & 3 filed written statement averring that they were minors as on the date of execution of the agreement of sale and denying the averment made in the plaint that first defendant was the karta of the family and he agreed to alienate the property for the benefit of estate and legal necessity. 4. The defendants-2 & 3 filed written statement averring that they were minors as on the date of execution of the agreement of sale and denying the averment made in the plaint that first defendant was the karta of the family and he agreed to alienate the property for the benefit of estate and legal necessity. It was further averred that defendants-2 & 3 have filed O.S.No.9049/2006 seeking for a declaration that the agreement of sale which is sought to be executed on 10-11-1994 was not executed on behalf of defendants-2 & 3 and the said agreement is not binding upon defendants-2 & 3 and the question of enforcing of the said contract would not arise. 5. Having regard to the pleadings, following issues were framed: (1) Whether the plaintiff proves that the defendant on behalf of himself and defendants-2 & 3 entered into agreement of sale dated 10-11-1994 agreeing to sell the suit schedule property for the consideration amount of Rs.20,28,000/-? (2) Whether the plaintiff proves that the defendants have committed the breach of the agreement of sale? (3) Whether the plaintiff proves that he was ever ready and willing to perform his part of the contract? (4) Whether the plaintiff is entitled to the relief of specific performance of the agreement of sale? (5) Whether defendants-2 & 3 proves that it is not binding upon their share as they have not agreed to sell their shares? (6) What decree or order? 6. On behalf of the plaintiff, plaintiff examined himself as P.W.1 and got marked the documents Ex.P-1 – agreement of Sale, Ex.P-2 – copy of the legal notice and Ex.P-3 – unserved cover. During the pendency of the suit, first defendant died and his wife has been brought on record as L.R. On behalf of the defendants, wife of the first defendant was examined as D.W.1 and defendant No.2 was examined as D.W.2. 7. The trial Court, after considering the contentions of learned counsel appearing for the parties and appreciating the oral and documentary evidence on record, held that the plaintiff has proved that first defendant on behalf of himself and defendants-2 & 3 had entered into an agreement of sale dated 10-11-1994 agreeing to sell the suit schedule property for a consideration of Rs.20,28,000/-and the defendants have committed breach of the agreement of sale. However, the trial Court answered issue Nos.3 to 5 in the negative by holding the plaintiff has failed to prove that he was ever ready and willing to perform his part of the contract and plaintiff is not entitled to the relief of specific performance of the agreement of sale and that defendants-2 & 3 have failed to prove that agreement of sale is not binding on them. The trail Court granted the alternative prayer of the plaintiff by directing the defendants to pay a sum of Rs.9,55,000/- to the plaintiff with interest at 6% p.a. from the date of the suit till the date of realization and the defendants were also directed to pay a sum of Rs.1 lakh to the plaintiff as damages and dismissed the suit of the plaintiff for specific performance. Being aggrieved by the said judgment and decree, plaintiff has filed this appeal. 8. The learned counsel appearing for the appellant submitted that the trial Court having rightly held that the plaintiff has proved execution of the agreement of sale dated 10-11-1994 and that defendant-1 had agreed to sell the property on behalf of himself and defendants-2 & 3 and the same is binding on defendants-2 & 3, erred in holding that plaintiff has failed to prove that he was ever ready and willing to perform his part of the contract and the plaintiff is not entitled for the relief of specific performance. The learned counsel further submitted that time is not the essence of the contract since the transaction was in respect of immovable property and it is clearly averred in the plaint and the evidence of P.W.1 that the plaintiff was ever ready and willing to perform his part of the contract and even in the reply notice, nothing has been stated on behalf of the defendants that plaintiff had no capacity to pay the balance amount and having regard to the conduct of defendant-1 who has committed breach of the contract, plaintiff has proved that he was ready and willing to perform his part of the contract and therefore, the suit for specific performance ought to have been decreed. In support of his contentions, he has relied upon number of decisions of Hon’ble Supreme Court and this Court, which would be referred to wherever they are found to be helpful to the appellant. 9. In support of his contentions, he has relied upon number of decisions of Hon’ble Supreme Court and this Court, which would be referred to wherever they are found to be helpful to the appellant. 9. The learned counsel appearing for the respondents submitted that the plaintiff himself has sought for alternative prayer for refund of the advance amount of Rs.9,55,000/- with damages of Rs.1 lakh which has been granted by the trial Court and there was no breach of the contract on behalf of the defendants and the finding of the trial Court that the plaintiff has failed to prove that he is ready and willing to perform his part of the contract is justified and apart from the averment in the plaint and the statement of P.W.1, no material whatever oral or documentary evidence is adduced to substantiate his contention. Therefore, relief of specific performance has been rightly rejected by the trial Court. 10. In reply, learned counsel appearing for the appellant submitted that the trial Court ought to have decreed the suit for specific performance; even otherwise, ought to have awarded interest at 24% p.a. and the trail Court was not justified in ordering interest from the date of the suit till the date of realization but ought to have awarded interest from the date of realization and therefore, the appeal may be allowed. 11. Having regard to the above said contentions, following points arise for our determination in this appeal: (1) Whether the finding of the trial Court that the plaintiff has failed to prove that he was ever ready and willing to perform his part of the contract is justified or calls for interference in this appeal? (2) Whether the finding of the trial Court that the plaintiff is not entitled to the relief of specific performance is justified or calls for interference? (3) Whether the judgment and decree passed by the trial Court in which the interest awarded at 6% p.a. onRs.9,55,000/- and which is ordered to be paid from the date of suit to the date of realization is liable to be set aside? We answer the above points as follows: (1) & (2):-The findings of the trial Court is justified and do not call for interference. We answer the above points as follows: (1) & (2):-The findings of the trial Court is justified and do not call for interference. (3) The plaintiff is entitled to interest at 6% p.a. on Rs.9,55,000/- from the date of payment to the date of realization and the judgment of the trial Court is liable to be modified as per final order. 12. The material on record would clearly show that the finding of the trail Court that the plaintiff has proved that defendant-1 on behalf of himself and defendants-2 & 3 agreed to sell the suit schedule property in favour of plaintiff under Ex.P-1 – the agreement of sale dated 10-11-1994 and that defendants have committed breach in not executing the sale deed has not been challenged by the defendants by filing the appeal or cross objections. Even otherwise, it is clear that having regard to the averment made in the plaint and the evidence of P.W.1 and D.Ws. 1 & 2, the said finding is justified and the plaintiff has preferred this appeal being aggrieved by the finding of the trail Court holding that the plaintiff was not ready and willing to perform his part of the contract and the plaintiff is not entitled to the relief of specific performance. Points (1) & (2): 13. The learned counsel appearing for the appellant has taken us through the evidence of P.W.1 and the contents of Exs.P-1 to P-3 and the evidence of P.W.2. On reappreciating of the said evidence, in order to answer the points for determination, we find that P.W.1 who is the plaintiff has averred in the plaint that he was ready and willing to perform his part of the contract. He has also stated in his evidence in examination-in-chief that he was ready and willing to perform his part of the contract and also he has also issued notice as per Ex.P-2 wherein he has stated that he was ready and willing to perform his part of the contract. He has also stated in his evidence in examination-in-chief that he was ready and willing to perform his part of the contract and also he has also issued notice as per Ex.P-2 wherein he has stated that he was ready and willing to perform his part of the contract. Apart from making the said averment in the plaint and statement in the deposition, no material whatever is produced by the plaintiff to substantiate his contention that he had the capacity to pay the balance amount and that he was ready and willing to perform his part of the contract by paying balance consideration as the consideration amount agreed was Rs.20,28,000/-, whereas, the advance of Rs.9,55,000/- has been paid. He has denied a suggestion in the cross examination that he was not ready and willing to perform his part of the contract and though the defendant-1 informed him that he was ready to execute the sale deed in respect of his share and not in respect of share of defendants-2 & 3, plaintiff was not ready and willing to get the sale deed executed in their behalf. It is well settled that in view of the provisions of Section 16(1)(c) of the Specific Relief Act, 1963 the burden of proving that the plaintiff was ready and willing to perform his part of the contract is upon the plaintiff and it is one of the requisite for granting the relief of specific performance of the contract namely, agreement of sale dated 10-11-1994 in the present case. The trial Court has proceeded on the basis that though the defendant-1 was required to execute the sale deed within two months from the date of execution, he has not executed the sale deed and therefore due notice – Ex.P-2 has been issued on 13-4-1995 calling upon the first defendant to execute the sale deed. Further, the plaintiff admits in his evidence that he had also agreed to purchase the property belonged to the brother of first defendant for Rs.25 lakhs and in that connection, sale deed was not registered in his favour. 14. There is force in the contention of the appellant that time is not the essence of contract in respect of the immovable property. 14. There is force in the contention of the appellant that time is not the essence of contract in respect of the immovable property. The learned counsel appearing for the appellant relied on the decisions of the Supreme Court in the case of S.V.R.MUDLIAR (DEAD) BY HIS L.Rs & OTHERS vs RAJABU F.BUHARI (Mrs)(DEAD) BY L.Rs & OTHERS ( (1995)4 SCC 15 ), BALASAHEB DAYANDEO NAIK (DEAD) THROUGH L.Rs AND OTHERS vs APPASAHEB DATTATRAYA PAWAR ( (2008) 4 SCC 464 ) and SMT.INDIRA KAUR & OTHERS vs SHRI SHEO LAL KAPOOR ( AIR 1988 SC 1074 ) clearly shows that time is not the essence of the contract in respect of immovable property unless it is specifically granted in the agreement itself that time is the essence of the contract. The other decisions relied on by the counsel appearing for the appellant is not helpful to this case. 15. The Hon’ble Supreme Court in the case of P.S.RANAKRISHNA REDDY vs M.K.BHAGYALAKSHMI & ANOTHER (AIR 2007 SCC 1256) has laid down that specific performance of agreement of sale cannot be denied on the ground that price of the immovable property is on rise. Similarly, in the case of MUKESH KUMAR & OTHERS vs COL.HARBANS WARAIAH & OTHERS (( 1999 (9) SUPREME 338 ) the Hon’ble Supreme Court has laid down that Sections 22 of the Specific Relief Act, 1963 r/w Order 1, Rule 10 of CPC and Section 21 of the Limitation Act, where the suit is filed for specific performance of execution of sale deed with agreement by several persons with vendor and where the suit by all except on e person who was made as defendant, subsequent transposition of that defendant as additional plaintiff, the plea of defendants that transposition beyond period of limitation for enforcing agreement to sale of his share is not tenable and Section 21 of the Limitation Act has no application to the cases of transposition. The other decisions relied upon by the learned counsel appearing for the appellant is not helpful to the case on hand which show that the plaintiff has proved that he was ever ready and willing to perform his part of the agreement. 16. The other decisions relied upon by the learned counsel appearing for the appellant is not helpful to the case on hand which show that the plaintiff has proved that he was ever ready and willing to perform his part of the agreement. 16. It is clear that, in the present case, what was stated in the notice Ex.P-2 is that the defendants were called upon to execute the sale deed in favour of the plaintiff after complying with all the necessary requirements under the law for registration of the sale deed within seven days from the date of receipt of the notice, failing which, plaintiff will be constrained to file a suit for specific performance of the agreement and obtain a decree. There is no merit in the contention of learned counsel appearing for the appellant that having regard to the fact that averment in the plaint and the evidence of P.W.1 that plaintiff was ready and willing to perform his part of the contract and the capacity of the plaintiff to pay the balance amount has not been disputed. The averment made in the plaint that plaintiff was ready and willing to perform his part of the contract which is spoken to by P.W.1 which is the self serving statement, has not been substantiated by producing any material on record. The learned counsel appearing for the appellant further submitted that the plaintiff need not prove that he was having cash or deposited the amount before the Court to show his readiness and willingness to perform his part of the contract. The plaintiff has stated that he had capacity to pay the balance consideration and it is no necessary for him to produce the cash before the Court. If the evidence prove that he had capacity to pay the balance consideration and he was ready and willing to perform his part of the contract, non deposit of amount will be of no merit in denying the relief of specific performance. However, in the present case, apart from the self serving statement of P.W.1, there is no material whatever produced by the plaintiff to substantiate his self serving statement that he had the capacity to pay the balance amount of Rs.12,73,000/- and self serving statement can never prove the averments made in the plaint. However, in the present case, apart from the self serving statement of P.W.1, there is no material whatever produced by the plaintiff to substantiate his self serving statement that he had the capacity to pay the balance amount of Rs.12,73,000/- and self serving statement can never prove the averments made in the plaint. The evidence of D.Ws.1 and 2 would clearly show that they have stated in their examination-in-chief that the plaintiff was not ready and willing to perform his part of the contract and he had no capacity to pay the balance consideration. Therefore, finding of the trail Court that the plaintiff has failed to prove that he was ready and willing to perform his part of the contract is justified. When once it is held that plaintiff has failed to prove that he is ready and willing to perform his part of the contract, relief of specific performance of the agreement of sale cannot be granted. 17. Further, in this case, contents of Ex.P-1 would show that parties are contemplating that if there is breach on the part of defendants, plaintiff would be entitled to refund of advance amount and Rs.1 lakh. Further, the contents of Ex.P-1 itself would show that agreement was to convene marketable title free from all encumbrances and admittedly defnendants-2 & 3 have filed a suit against the plaintiff and first defendant in O.S.No.9049/2006 claiming partition and separate possession of the suit schedule property and defendants-2 & 3 were minors at the time of execution of the agreement of sale. Further, the relief claimed in the suit includes an alternative prayer that the defendants may be ordered to refund a sum of Rs.9,55,000/-received by them along with interest at 24% p.a. and also the damages of Rs.1 lakh. Further, the relief claimed in the suit includes an alternative prayer that the defendants may be ordered to refund a sum of Rs.9,55,000/-received by them along with interest at 24% p.a. and also the damages of Rs.1 lakh. Having regard to the above said circumstances and on re-appreciation of the oral and documentary evidence adduced before the trial Court, it is clear that finding of the trial Court that the plaintiff has failed to prove that he was ready and willing to perform his part of the agreement of sale dated 10-11-1994 and that the plaintiff is not entitled to relief of specific performance as sought for in the suit is justified and the said finding of the trail Court does not suffer from any error or illegality so as to call for interference in this appeal and we answer points (1) & (2) accordingly. Point No.(3): 18. The trail Court having held that plaintiff is not entitled to relief of specific performance has ordered refund of Rs.9,55,000/- with interest at 6% p.a. from the date of suit till the date of realization. There is force in the contention of learned counsel appearing for the appellant that the interest ought to have been awarded from the date of payment of the advance amount to the date of realization and not from the date of the suit as the amount was paid much earlier to filing of the suit as recited in the document which has been proved as per Ex.P-1. Therefore we hold that plaintiff would be entitled to interest at 6% p.a. awarded by the trial Court from the date of payment of advance amount to the date of realization. The judgment of the trial Court awarding Rs.1 lakh as damages is justified having regard to the contents of Ex.P-1. Apart from making the said modification about entitlement of the plaintiff to interest from the date of payment of the advance amount to the date of realization, the judgment and decree in all other respects, is entitled to be confirmed. The judgment of the trial Court awarding Rs.1 lakh as damages is justified having regard to the contents of Ex.P-1. Apart from making the said modification about entitlement of the plaintiff to interest from the date of payment of the advance amount to the date of realization, the judgment and decree in all other respects, is entitled to be confirmed. Accordingly, we answer point No.(3) and pass the following: ORDER The judgment and decree passed by the trial Court dated 31-10-2003 in O.S.No.8621/1995 awarding interest at 6% p.a. on the amount ordered to be refunded, from the date of suit till the date of realization is modified and it is ordered that the plaintiff is entitled to interest at 6% p.a. on the amount of Rs.9,55,000/- which is ordered to be paid, from the date of payment of the advance amount to the date of realization. Apart from the said modification, the judgment and decree passed by the trial Court in all respects is confirmed.