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2012 DIGILAW 1873 (MAD)

T. P. Latha @ Hemalatha v. P. Sukumar

2012-04-12

K.MOHAN RAM, M.DURAISWAMY

body2012
JUDGMENT K.MohanRam, J., 1. The defendants in O.S.No.84 of 2008 on the file of the I Additional District Court, Erode, are the appellants in the above appeal. The respondent / plaintiff filed the suit for specific performance of the agreement of sale, dated 10.03.2007 against the appellants / defendants and the trial court decreed the suit and being aggrieved by that, the above appeal has been filed by the appellants. 2. The case of the respondent before the Court below is as follows:- The suit property belonged to one Late T.M.Pasai Nayagam and he died on 11.08.2005 leaving behind the appellants as his legal heirs and the appellants inherited the suit properties and became the absolute owners thereof. The appellants made a proclamation for sale of the suit property for their family expenses and also for their welfare. After negotiations, an agreement of sale, dated 10.03.2007, was entered into between them. On 10.03.2007, the appellants agreed to sell the suit property at Rs.1,050/- per sq.ft. The total sale consideration comes to Rs.17,01,000/-. The time fixed for completing the sale is six months from the date of the agreement. A sum of Rs.5,00,000/- was paid as advance and the balance sale price of Rs.12,01,000/-is to be paid by the respondent to the appellants at the time of registration of the sale deed. Since the property is an immovable property, time is not the essence of the contract. 3. The appellants are in occupation of a residential house and a portion of the suit property is let out to the tenants. Since the third appellant was studying on the date of agreement, the appellants agreed to execute the sale deed and hand over possession of the suit property on the date of sale deed itself. Further, as the tenants had encroached the road for the purpose of laying steps to enable their customers to reach their shop, the appellants have agreed to measure the suit property with the help of the surveyor for the purpose of arriving at the sale price. The appellants also agreed to vacate and surrender vacant possession of the suit property, but they failed to do so. 4. The respondent was and is always ready and willing to perform his part of the contract from the date of agreement. The appellants also agreed to vacate and surrender vacant possession of the suit property, but they failed to do so. 4. The respondent was and is always ready and willing to perform his part of the contract from the date of agreement. On several occasions, the respondent tendered the balance sale consideration and requested the appellants to execute the sale deed free from all encumbrances but the appellants gave evasive replies and postponed the execution of the sale deed. The respondent is possessing sufficient means and amounts to pay the balance sale consideration. Subsequent to the date of the agreement, as Erode Municipality was upgraded as Erode Corporation, the market value has increased to some extent. Therefore, in order to cheat and defraud the respondent, the appellants were attempting to alienate and encumber the suit properties to the third parties. When the respondent approached the appellants for execution of the sale deed through mediators the appellants failed to execute the sale deed. 5. On 14.09.2007, the appellants sent a registered notice to the respondent admitting the suit agreement, but claimed that time is the essence of the contract and on the expiry of the period stipulated in the agreement, the respondent forfeited the advance amount. Since time is not the essence of the contract and as the appellants did not chose to vacate the tenants and on account of the studies of the third appellant, the appellants were not able to vacate the suit property and in fact, sought time up to May 2008, when the academic year ends. Since the appellants had failed to comply with the terms of the agreement of sale, the suit is filed for specific performance. The respondent also filed a lodgement schedule for deposing the balance sale consideration and he also sought for an injunction against the appellants. 6. The suit was contested by the appellants by filing a detailed written statement by the first appellant, which was adopted by the other appellants, inter-alia contending as follows:- The execution of the agreement of sale and the terms incorporated therein were admitted. The appellants contended that time is the essence of the contract. It is also admitted that they are in occupation of the residential house and a portion of the suit property is let out to the tenants. The appellants contended that time is the essence of the contract. It is also admitted that they are in occupation of the residential house and a portion of the suit property is let out to the tenants. It was denied that the third appellant was studying at the time of entering into the agreement. The alleged encroachment on the road by the tenants is denied. There was no encroachment by the tenants and therefore, there is no necessity to measure the suit property with the help of the surveyor. 7. It was further contended that as claimed in the plaint the respondent was not ready and willing to perform his part of the contract. It is equally false to allege that on several occasions the respondent tendered the balance sale consideration and requested the appellants to execute the registered sale deed. The appellants never gave any evasive replies and postponed the execution of sale deed. The respondent was not possessing sufficient means and amount to pay the balance sale consideration and take the sale deed in his favour. It is not correct to state that subsequent to the sale agreement, the market value has raised to some extent. It is equally false to allege that to cheat the respondent, the appellants were attempting to alienate and encumber the suit property. It is false to allege that the appellants failed to vacate the tenants and they sought for time up to May 2008. 8. It is false to allege that the appellants made a proclamation for a sale of the suit property to discharge the loan and for the family necessities as marriage and medical expenses. Since the appellants were badly in need of money, they insisted the respondent that time is to be very essence of the contract and the respondent also agreed for the same and that is the reason why the forfeiture clause and cancellation clause were incorporated in the agreement of sale. The appellants requested the respondent to take the sale deed in-time, but he failed to do so. As per the terms of the agreement of sale, the agreement automatically stands cancelled and the respondent has lost all his rights as he has not taken the sale deed in-time. Therefore, the appellants issued a legal notice on 14.09.2007 reminding the clause of forfeiture and cancellation of agreement. As per the terms of the agreement of sale, the agreement automatically stands cancelled and the respondent has lost all his rights as he has not taken the sale deed in-time. Therefore, the appellants issued a legal notice on 14.09.2007 reminding the clause of forfeiture and cancellation of agreement. Even after the notice, the respondent did not take any steps to take the sale deed and he has also not sent any reply, but straightaway he filed the suit on 30.04.2008. Since the respondent was never ready and willing to purchase the suit property, the respondent has no right to file the suit for specific performance. There was no enforceable contract between the respondent and the appellants as on the date of filing of the suit and therefore, the suit is not maintainable. On the aforesaid pleadings, the appellants sought for dismissal of the suit. 9. On the aforesaid pleadings, the trial court framed the following issues:- “(i) Whether the time fixed under the agreement is essence of the contract as alleged by the defendants? (ii) Whether the plaintiff was ready and willing to perform his part of the contract? (iii) Whether the plaintiff is entitled to the relief of specific performance as prayed for? (iv) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? (v) To what relief, the plaintiff is entitled to?” 10. During trial, on the side of the respondent, he was examined as P.W.1 and his brother-in-law, Chandran, who was an attester of the agreement of sale, was examined as P.W.2 and on his side Exs.A-1 to A-5 were marked. On the side of the appellants, the first appellant was examined as D.W.1 and one of the attestors of the agreement of sale was examined as D.W.2 and one another witness has been examined as D.W.3 and Ex.B-1 has been marked. 11. On a consideration of the entire evidence of record, the trial court decreed the suit for specific performance, hence the above appeal. 12. Heard the learned counsel on either side. 13. Mr. 11. On a consideration of the entire evidence of record, the trial court decreed the suit for specific performance, hence the above appeal. 12. Heard the learned counsel on either side. 13. Mr. B.T.Seshadri, learned counsel appearing on behalf of Ms.K.Bhanumathy, learned counsel for the appellants, made the following submissions:- The execution of the agreement of sale-Ex.A-1, dated 10.03.2007, the payment of an advance amount of Rs.5,00,000/- on the date of execution of Ex.A-1, the sale price of Rs.1,050/- per sq.ft., the period of six months fixed for completing the sale, the extent of the property mentioned as 1,600 sq.ft., and the total consideration mentioned as Rs.17,01,000/- in the plaint are admitted; the period of six months fixed for completing the sale under Ex.A-1 expired on 10.09.2007; since the respondent was not ready and willing to perform his part of the contract and he did not take any steps to pay the balance sale consideration and call upon the appellants to execute the sale deed, the appellants issued Ex.A-2-legal notice, dated 14.09.2007 stating that inspite of several requests made by the appellants to complete the sale, the respondent was not ready and willing to complete the sale and a month prior to the expiry of the period of six months, when the appellants compelled the respondent to complete the sale, the respondent promised to complete the sale before the expiry of six months stating that he was not having sufficient means; it is also stated in Ex.A-1 that as the respondent had failed to perform his part of the contract as per terms of the agreement of sale, the agreement stood cancelled and the advance amount has been forfeited; it was also stated that only to discharge the hand loans, to meet the medical expenses and the marriage expenses of the daughter of the first appellant, the agreement of sale was entered into and as the respondent had failed to complete the sale, the appellants had suffered huge loss and hardship; though the respondent had received the legal notice he did not care to send any reply or come forward to complete the sale but has straightaway filed the suit on 30.04.2008 and deposited the balance sale consideration into Court on 06.05.2008. 14. 14. Learned counsel for the appellants further submitted that though the respondent neither had cash in hand or bank nor the capacity to raise necessary funds to pay the balance sale consideration within the time stipulated; it has been falsely pleaded in the plaint as if the respondent was always ready and willing to perform his part of the contract of sale; this conduct of the respondent in taking such a false plea has to be taken into consideration while exercising the discretion under Section 20 of the Specific Relief Act; though it is mentioned in Ex.A-1 that the property should be measured, the respondent never demanded or requested the appellants for measuring the suit property, since the suit property has been described not only by mentioning the Town Survey Numbers, but also the four boundaries have been mentioned and the measurements of all the four sides have been mentioned; there was no need to measure the suit property as there was no encroachment by anybody; the fact that the respondent had correctly stated the extent of the suit property as 1,600 sq.ft., in the schedule to the plaint and that itself shows that there was no need to measure the suit property; it is not the case of the respondent that any third party had encroached into the suit property; the period of six months fixed for completing the sale under Ex.A-1-sale agreement is the essence of the agreement of sale; it is not the case of the respondent that the appellants refused to handover possession or they were not in a position to handover vacant possession. 15. 15. Learned counsel for the appellants further submitted that the plaint itself is not in conformity with Forms 47 and 48 of the Code of Civil Procedure as the respondent has not mentioned the dates on which he is alleged to have offered to pay the balance sale consideration and get the sale deed executed; on this ground alone, the suit should have been dismissed; since it is admitted by the respondent himself that the appellants agreed to sell the property only to meet the family expenses, medical expenses and the marriage expenses of the daughter of the first appellant, the period of six months fixed for completing the sale is the essence of the contract and as the respondent was never ready and willing to complete the sale within the period fixed, he has lost his right to seek specific performance of the agreement of sale; it is specifically stated in the agreement that if the balance sale consideration is not paid and the agreement of sale is not got executed within six months, the agreement of sale will stand terminated automatically; the above said recitals in the agreement of sale and the surrounding circumstances make time as the essence of the agreement of sale; from the date of agreement there was total inaction on the part of the respondent and he never approached the appellants asking them to measure the suit property or offered to pay the balance sale consideration and willing to take the suit property; the respondent had only one immovable property and it was not worth Rs.27 lakhs as claimed by the respondent; the sale deed-Ex.B-1 executed by the respondent itself is only for a total sale consideration of Rs.4,90,000/-and therefore the case of the respondent that there was an agreement of sale between the respondent and the purchaser and the purchaser paid Rs.15 lakhs as advance even ten months prior to the execution of Ex.A-1 is totally false; the case of the respondent that he had Rs.15 lakhs in hand even at the time when he entered into Ex.A-1 has not been proved; even after Ex.A-2-legal notice was received by the respondent he had not expressed his readiness and willingness to pay the balance sale consideration and get the sale deed executed; he had also not sent any reply; the respondent had waited for nearly 7= months to file the suit itself and only on 06.05.2008 he deposited the balance sale consideration into the Court therefore the evidence on record clearly shows that the respondent was never ready and willing to perform his part of the contract and he was not having the necessary funds or the capacity to raise funds to complete the sale; even assuming that the appellants had not measured the suit property as agreed to in Ex.A-1 and it amounts to breach on the part of the appellants it will not entitle the respondent to get a decree for specific performance unless and until the respondent had proved his readiness and willingness to pay the sale consideration within the period fixed and take the sale deed; the conduct of the respondent in making a false plea that he was always ready and willing to perform his part of the agreement of sale itself dis-entitles him to get a decree for specific performance. In support of the said contentions, the learned counsel based reliance on the following decisions:- (i) (2011) 12 Supreme Court Cases 18 (SARADAMANI KANDAPPAN v. S.RAJALAKSHMI); (ii) (1997) 3 SCC 1 (K.S.VIDYANADAM v. VAIRAVAN); (iii) 1999 L.W.239 (DB) (Rethinasabapathi Pillai V.V. v. T.R.Sriramulu Chettiar); (iv) (2010) 10 Supreme Cout Cases 512 (MAN KAUR v. HARTAR SINGH SANGHA); (v) AIR 1996 SUPREME COURT 116 (N.P.Thirugnanam v. R.Jagan Mohan Rao); (vi) (1996) 4 Supreme Court Cases 526 (HIS HOLINESS ACHARYA SWAMI GANESH DASSJI v. SITA RAM THAPAR). Learned counsel for the appellants also took us through the evidence. 16. Learned counsel for the appellants also took us through the evidence. 16. Countering the said submissions, Mr.N.Manoharan, learned counsel for the respondent, made the following submissions:- As far as the contention of the learned counsel for the appellants that the pleadings are not in conformity with Forms 47 and 48 of the Code of Civil Procedure is concerned, the learned counsel submitted that no such plea has been raised in the written statement or in the grounds of appeal; in Ex.A-1-agreement of sale, the appellants had agreed to measure the suit property and fix its boundaries and fix the total sale consideration and the relevant clause reads as follows:- "TAMIL" But, according to the learned counsel, the appellants had not measured the suit property and fixed the boundaries within six months as agreed; even in Ex.A-2-legal notice it is not stated that the appellants had measured the suit property within six months; at no point of time the appellants offered to measure the suit property as agreed; similarly even in the written statement, it is not stated that the appellants had measured the suit property and the total extent was ascertained and informed to the respondent; D.W.1, in her cross examination, has admitted that the suit property was not measured but had stated that since the respondent did not approach her the suit property was not measured; therefore when the appellants have not fulfilled their obligation under the agreement of sale they cannot contend that the respondent was not ready and willing to perform his part of the contract; the period of six months expired on 10.09.2007 and the suit was filed without undue delay on 30.04.2008 and on 06.05.2008 itself the balance sale consideration had been deposited into the Court; further, a major part of the sale consideration, namely, Rs.5,00,000/- had been paid as advance and these facts clearly establish that the respondent had proved his readiness and willingness; as far as the submission of the learned counsel for the appellants regarding the conduct of the respondent is concerned, the learned counsel for the respondent submitted that the appellants had not fulfilled their obligation under the agreement of sale as they had not measured the suit property and informed the same to the respondent, but they were only interested in forfeiting the advance; though there is no recital in Ex.A-1 that the appellants should vacate the tenants, D.W.1 had admitted that it was agreed that the tenants had to be vacated; but admittedly the tenants had not been vacated; it is neither pleaded by the appellants nor spoken to in their evidence that because of the non-execution of the sale deed in-time either the marriage of the daughter of the first appellant was stopped or the appellants were put to any hardship; the respondent, being a family friend of the husband of the first appellant, allowed them to stay in the suit property, so that the third appellant could complete her studies; though Ex.B-1-sale deed had been executed by the respondent to the purchaser for a total sale consideration of Rs.4,90,000/-as mentioned in the sale deed, the guideline value of the property itself is stated as Rs.10 lakhs and the actual sale consideration received by the respondent was Rs.27 lakhs; this Court can take judicial notice of the fact that most of the parties do not mention the actual sale consideration received under the sale deed in the sale deed itself; it is common and known to everybody that only a lesser value will be shown as the sale consideration to avoid the stamp duty; the extent of the property sold under Ex.B-1 was 3,600 sq.ft., with existing constructions and located in an equally important area of Erode; when the suit property measuring an extent of 1,600 sq.ft., itself has been agreed to be sold for Rs.17,01,000/-, it is quite possible and it was also true that the property measuring 3,600 sq.ft., with construction thereon could have been easily sold for Rs.27 lakhs; therefore, according to the learned counsel, the respondent was having the capacity and the means to pay the balance sale consideration of Rs.12,01,000/-; the court below has considered the entire evidence on record and has rightly held that time is not the essence of the agreement of sale and the appellants had not fulfilled their obligation under the agreement of sale as they had not measured the suit property to enable the fixation of the total sale consideration and they had not suffered any hardship due to non-completion of the sale within the time stipulated and the trial court has properly exercised its discretion under Section 20 of the Specific Relief Act and therefore, the appeal has to be dismissed; in support of the aforesaid submissions, the learned counsel based reliance on the following decisions:- (i) (2011) 1 Supreme Court Cases 429 (J.P.BUILDERS v A.RAMADAS RAO); (ii) (2005) 7 Supreme Court Cases 534 (ANIGLASE YOHANNAN v. RAMLATHA); (iii) (2007) 14 Supreme Court Cases 415 (SITA RAM v. RADHEY SHYAM); (iv) (2008) 17 Supreme Court Cases 362 (RAM NIWAS GUPTA v. MUMTAZ HASAN); (v) (1993) 1 Supreme Court Cases 519 (CHAND RANI v. KAMAL RANI); (vi) AIR 2007 Delhi 1 (Kuldip Gandotra v. Shailendra Nath Endlay); (vii) (2008) 11 Supreme Court Cases 45 (SILVEY v. ARUN VARGHESE); (viii) 1987 TLNJ 313 (Govindasamy Padayachi (Died) v. Beerasamy Padayachi and Others); (ix) (2011) 8 Supreme Court Cases 601 (COROMANDEL INDAG PRODUCTS (P) LTD. v. GARUDA CHIT & TRADING CO. (P) LTD.) 17. We have considered the aforesaid submissions made by the learned counsel on either side and perused the materials available on record. 18. The point that arises for determination in the above appeal are as under:- (i) Whether the time of six months fixed in Ex.A-1-agreement of sale to complete the sale transaction is the essence of the agreement of sale? (ii) Whether the plaintiff / respondent was always ready and willing to perform his part of the contract of sale? (iii) Whether the Court below is right in granting the equitable and discretionary relief of the decree for specific performance in favour of the respondent? 19. In this case, Ex.A-1-sale agreement was entered into between the appellants and the respondent on 10.03.2007. The sale price agreed for the suit property is Rs.1,050/-per sq.ft., and Rs.5,00,000/- was paid as advance by the respondent to the appellants. The time fixed for payment of the balance sale consideration and to get the sale deed executed and possession handed over is six months from 10.03.2007. If within the period of six months, the respondent pays the balance sale consideration, the appellants have to execute the sale deed either in favour of the respondent or his nominee and put him in possession of the suit property. It is also provided in the agreement that if the appellants fail to execute the sale deed, inspite of the respondent being ready and willing to pay the balance sale consideration, the respondent is entitled to take legal proceedings to enforce the agreement of sale. If the respondent fails to pay the balance sale consideration within the time fixed and get the sale deed executed, he is liable to forfeit the advance amount paid under the agreement and the agreement stands terminated. It is also provided therein that the appellants have to measure the suit property and fix the boundaries to arrive at the total sale consideration. 20. In the decision reported in (1993) 1 Supreme Court Cases 519 (referred to supra) a Constitution Bench of the Apex Court, in paragraph 25, has laid down as follows:- "25.) From an analysis of the above case law it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are evident: 1. From the express terms of the contract; 2. from the nature of the property; and 3. from the surrounding circumstances, for example: the object of making the contract." 21. In the decision reported in (2011) 12 Supreme Court Cases 18 (referred to supra) the Apex Court, after referring to Chand Rani's case and other decisions of the Apex Court, has laid down, in paragraph 28, as follows:- "28.) The intention to make time stipulated for payment of balance consideration will be considered to be essence of the contract where such intention is evident from the express terms or the circumstances necessitating the sale, set out in the agreement. If for example, the vendor discloses in the agreement of sale, the reason for the sale and the reason for stipulating that time prescribed for payment to be the essence of the contract, that is, say, need to repay a particular loan before a particular date, or to meet an urgent time bound need (say medical or educational expenses of a family member) time stipulated for payment will be considered to be the essence. Even if the urgent need for the money within the specified time is not set out, if the words used clearly show an intention of the parties to make time the essence of the contract, with reference to payment, time will be held to be the essence of the contract." The very same legal principles have been reiterated by the Hon'ble Apex Court in the decision reported in (2011) 8 Supreme Court Cases 601 (referred to supra). 22. It has been consistently held by the Hon'ble Apex Court, following certain early English decisions, that in the case of the agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. 22. It has been consistently held by the Hon'ble Apex Court, following certain early English decisions, that in the case of the agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the timelimits stipulated in the agreement for doing one or the other thing by one or the other party. 23. We have to consider the recitals contained in Ex.A-1-sale agreement in the light of the aforesaid legal principles laid down by the Apex Court to decide whether time is the essence of the agreement of sale in this case. 24. Admittedly, it has not been recited in Ex.A-1 that time is the essence of the agreement of sale. Similarly, the circumstances necessitating the sale have also not been set out in the agreement. Even if the urgent need for the money within the specified time is not set out, if the words used clearly show an intention of the parties to make time the essence of the contract, within reference to payment, time will be held to be the essence of the contract. In Ex.A-1 it is not mentioned that there is any urgent need for money within the specified time. The words used in Ex.A-1 does not show an intention of the parties to make time the essence of the contract. Though it is provided that within the period of six months, the purchaser / respondent has to pay the balance sale consideration and get the sale deed executed and take possession and a forfeiture clause is also incorporated, that itself will not make time the essence of the agreement of sale. Though it is stated in the written statement that since the appellants were badly in need of the money they insisted the respondent that time is to be the very essence of the contract and it has not been so recited in Ex.A-1. Though it is stated in the written statement that since the appellants were badly in need of the money they insisted the respondent that time is to be the very essence of the contract and it has not been so recited in Ex.A-1. It has been stated in paragraph 7 of the written statement that the appellants did not make a proclamation for the sale of the property for discharging the loan and for the family necessities as marriage and medical expenses. It is no doubt true, as contended by the learned counsel for the appellants, that P.W.1, in his cross-examination, has admitted that the agreement of sale was entered into only to meet the marriage expenses of the daughter of the first appellant (second appellant) and the medical treatment expenses of the first appellant. From that itself it cannot be said that time is the essence of the contract of sale. As in Ex.A-1 the urgent need for money to meet the second appellant's marriage expenses and to meet the expenses of the first appellant's medical treatment have not been set out and the words used in Ex.A-1 also does not show the intention of the parties to make time the essence of the contract. Hence we are unable to countenance the contention of the learned counsel for the appellants that the time is the essence of the contract of sale. Therefore, we are of the considered view that time, in this case, is not the essence of the contract of sale. 25. The next vital point that has to be considered is as to whether the respondent was always ready and willing to perform his part of the agreement of sale. In the plaint, the respondent has clearly stated that from the date of agreement of sale, he was and is always been ready and willing to perform his part of the contract. It has also been pleaded that the respondent is possessing sufficient means and amounts to pay the balance sale consideration to take the sale deed in his favour in terms of the agreement for sale. 26. It has also been pleaded that the respondent is possessing sufficient means and amounts to pay the balance sale consideration to take the sale deed in his favour in terms of the agreement for sale. 26. It has been laid down by the Hon'ble Apex Court in a catena of decisions that in construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. To gather true spirit behind a plea it should be read as a whole. It does not distract one from performing his obligations as required under a statute. But to test whether he has performed his obligations, one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature or word. Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of "readiness and willingness" has to be in spirit and substance and not in letter and form. Therefore, we are unable to countenance the contention of the learned counsel for the appellants that as the plaint, in this case, is not in conformity with Forms 47 and 48 of the Code of Civil Procedure it does not satisfy the requirements of Section 16 (c) of the Specific Relief Act. 27. In the decision reported in AIR 1996 SUPREME COURT 116 (referred to supra) the Apex Court has laid down as follows:- "5.) ... The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be be considered by the court while granting or refusing to grant the relief. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract." Thus right from the date of the execution of the agreement of sale till the date of the decree, the plaintiff must prove that he is ready and has always been ready and willing to perform his part of the contract. The continuance readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. 28. Mr. B.T.Seshadri, learned counsel for the appellants, basing reliance on a decision of the Apex Court reported in (2010) 10 Supreme Court Cases 512 (referred to supra), submitted that any person seeking benefit of the specific performance of the contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief and Section 16 (c) read with Explanation (ii) imposes a personal bar. He further submitted that the respondent should not only aver in the plaint but should also establish the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. 29. In this case, according to the learned counsel, the respondent has not proved his readiness and willingness by adducing acceptable evidence. He further submitted that the respondent should not only aver in the plaint but should also establish the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. 29. In this case, according to the learned counsel, the respondent has not proved his readiness and willingness by adducing acceptable evidence. It is the consistent case of the appellants that the respondent was never ready and willing to perform his part of the contract of sale as he was not having sufficient funds or the means or the capacity to raise necessary funds, but except pleading in the plaint that the respondent was always ready and willing to perform his part of the agreement of sale and he has got necessary means and capacity to raise the required funds except producing Ex.B-1-sale deed, under which the respondent has sold his immovable property for a total sale consideration of Rs.4,90,000/-, no other documentary evidence has been adduced by the respondent to prove his readiness i.e., he was having necessary funds or the capacity throughout the period commencing from the date of Ex.A-1 and till the date of making the deposit into Court. A perusal of Ex.B-1-sale deed shows that the respondent had sold his property on 26.05.2008 i.e., after filing of the suit, namely, 30.04.2008, only. It is the contention of the respondent that there was a prior agreement between the respondent and the purchaser under Ex.B-1 and under that agreement the purchaser had paid a sum of Rs.15,00,000/-as advance even ten months prior to 26.05.2008, but the said case of the respondent has not been proved by any acceptable evidence. The said alleged agreement has not been mentioned in Ex.B-1. The purchaser under Ex.B-1 has also not been examined as a witness. When the total sale consideration itself is stated as Rs.4,90,000/-, the case of the respondent that the total sale consideration received under Ex.B-1 was Rs.27,00,000/- cannot be accepted. 30. The contention of the learned counsel for the respondent that this Court may take judicial note of the fact that in most of the sale deeds the true sale consideration will not be recited and only a part of the same will be recited to avoid payment of heavy stamp duty is concerned, it has to be pointed out that such a wide proposition cannot be accepted. Any illegalities or unlawful defrauding of the revenue by the unscrupulous vendors and vendees cannot be taken judicial note off by this Court. 31. If really as contended by the learned counsel for the appellants, the respondent had received an advance amount of Rs.15,00,000/- from the purchaser under Ex.B-1-sale deed even ten months prior to the execution of the sale deed, the respondent would have definitely deposited the said amount in some bank and kept in his bank account, but, admittedly, there is no evidence for that. 32. It is not the case of the respondent that apart from the properties sold under Ex.B-1 he has other properties or other means to raise necessary funds to pay the balance sale consideration. There is absolutely no evidence, whatsoever, adduced by the respondent to show that he had the necessary funds or the capacity to raise the funds to pay the balance sale consideration of Rs.12,01,000/-right from 10.03.2007 to 30.04.2008 when the suit was filed. It is no doubt true that the respondent had deposited the balance sale consideration into Court on 06.05.2008 and from that single fact it cannot be presumed that the respondent was continuously ready and had the capacity to pay the balance sale consideration. 33. Mr. N.Manokaran, learned counsel for the respondent basing reliance on a decision of the Apex Court reported in (2004) 6 Supreme Court Cases 649 (P.D'Souza v. Shondrilo Naidu) submitted that readiness and willingness on the part of the plaintiff to perform his part of the contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement of sale. In this context, it is contended by the learned counsel that though it is specifically provided for in Ex.A-1-sale agreement that the appellants should measure the suit property to ascertain the extent of the suit property and fix its boundaries to enable the respondent to pay the balance sale consideration, they have admittedly not measured the suit property and informed the extent of the suit property to the respondent and therefore, according to the learned counsel, when the appellants have not fulfilled the obligations cast upon them, it cannot be said that the respondent was not ready and willing to perform his part of the contract. 34. 34. The said contention of the learned counsel for the respondent cannot be countenanced in the light of a decision of the Apex Court reported in (2010) 10 SCC 512 (referred to supra). In the said decision, a similar contention was put forth but the same was rejected. In paragraphs 39 and 40 of the said decision, it has been laid down as follows:- "39.) The learned counsel for the respondent contended that in terms of the agreement, the defendant had to furnish an NOC from Chandigarh Administration, as also ULC clearance and income tax clearance required for the sale and there was nothing to show that she had obtained them, and therefore the question of plaintiff proving his readiness and willingness to perform his obligations did not arise. 40.) This contention has no merit. There are two distinct issues. The first issue is the breach by the defendant - vendor which gives a cause of action to the plaintiff to file a suit for specific performance. The second issue relates to the personal bar to enforcement of a specific performance by persons enumerated in section 16 of the Act. A person 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 the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of plaintiff is something which need not be proved, if the plaintiff is able to establish that defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Therefore, the assumption of the respondent that readiness and willingness on the part of plaintiff is something which need not be proved, if the plaintiff is able to establish that defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs.10 lakhs and earnest money of Rs.1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs.15 lakhs. In such a case there is a clear breach by defendant. But in that case, if plaintiff did not have the balance Rs.9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract had to be performed, the plaintiff will not be entitled to specific performance,even if he proves breach by defendant, as he was not "ready and willing" to perform his obligations." 35. Since the respondent did not have the balance sale consideration of Rs.12,01,000/-or the capacity to arrange and pay such money when the contract had to be performed, the respondent will not be entitled to specific performance even if he proves breach by the appellant. Therefore, the finding of the trial court that since the appellants have not measured the suit property, the respondent was not in a position to get the sale deed executed on time is erroneous. The observation of the Court below that the payment of Rs.5,00,000/- as advance is a strong proof that the respondent / plaintiff was financially affluent to pay the balance amount is also erroneous. 36. The contention of the learned counsel for the respondent is that since the suit has been filed within a reasonable time without delay and the balance sale consideration also had been deposited into Court, the trial court is right in decreeing the suit. In support of the said contention, the learned counsel based reliance on a decision reported in (2005) 7 Supreme Court Cases 534 (referred to supra). In support of the said contention, the learned counsel based reliance on a decision reported in (2005) 7 Supreme Court Cases 534 (referred to supra). In the said decision, the agreement of sale was executed on 15.02.1978 and the time fixed for completion of the sale was six months and immediately after the expiry of the six months period, lawyer's notice was given by the vendee calling upon the vendor to execute the sale deed and the suit was filed in September 1978 i.e., within one month from the expiry of the period fixed. In such circumstances, the Apex Court has held that the plaintiff in that case was entitled for a decree of specific performance. 37. The said decision is not applicable to the facts of this case since in this case admittedly no notice was issued by the respondent calling upon the appellants to execute the sale deed by receiving the balance sale consideration within the period of six months under Ex.A-1. Not only that, even after the appellants issued Ex.A-2-notice informing him that the agreement of sale stands terminated, the respondent did not sent any reply but has also not taken any steps to pay the balance sale consideration and called upon the appellants to execute the sale deed. It was only after the expiry of the period of 7= months from the date of expiry of the six months period prescribed, the suit came to be filed. Though it is contended that the respondent met the appellants even before the expiry of six months period and thereafter also offered to pay the balance sale consideration and demanded the appellants to execute the sale deed and a Panchayat was also conducted by the well-wishers, the same have not been proved by any acceptable evidence. 38. It is pertinent to point out that in the proof affidavit filed by D.W.1 as her chief examination it is stated that the appellants personally requested the respondent several times to get the sale deed executed and the respondent was not ready to get the sale deed executed, but the same has not been rebutted by cross-examining her. 38. It is pertinent to point out that in the proof affidavit filed by D.W.1 as her chief examination it is stated that the appellants personally requested the respondent several times to get the sale deed executed and the respondent was not ready to get the sale deed executed, but the same has not been rebutted by cross-examining her. No suggestion whatsoever has been put to her suggesting that the appellants did not request the respondent to get the sale deed executed and the respondent was not ready to get the sale deed executed and it is false to state that the respondent was not willing to take the sale deed. 39. Though it is the case of the respondent that he, on several occasions before the expiry of the period of six months and even thereafter, met the appellants and offered to pay the balance sale consideration, the appellants sought for time to vacate the premises as the third appellant was studying and the tenants had to be vacated, it has not been proved by acceptable evidence. Even in the cross examination he is unable to state the dates on which he had made such an offer. 40. Now the next question that has to be considered is whether the Court below is right in exercising its discretion in favour of the respondent in decreeing the suit for specific performance. 41. We have held that though time is not the essence of the agreement of sale, the respondent has not proved his readiness and willingness to pay the balance sale consideration and get the sale deed executed, it is contended by the learned counsel for the respondent that since the suit has been filed without delay and the balance sale consideration had been deposited into Court, the Court below is right in exercising its discretion in favour of the respondent. When once this Court has held that the respondent has not proved his readiness and willingness to pay the balance sale consideration and get the sale deed executed within the period fixed in the agreement of sale and even thereafter and he has not proved his readiness right from the date of agreement till the date of filing of the suit and there was total inaction on the part of the respondent right from the date of agreement till the filing of the suit. If really the respondent had the necessary funds and was willing to get the sale deed executed he could have atleast sent a reply expressing his readiness and willingness and fixed a date for execution of the sale deed but admittedly he had not done so. Thus there was total inaction on the part of the respondent and therefore there is a personal bar for granting the decree and hence the respondent is not entitled to the discretionary relief of specific performance. The Court below has not applied the correct legal principles to the facts of this case and has not properly exercised its discretion in granting the decree and hence the decree is liable to be set-aside. 42. As we have held that the respondent is not entitled for the decree of specific performance, it has to be seen as to whether he is entitled for the refund of the advance amount of Rs.5,00,000/- paid by him to the appellants. Section 22 of the Specific Relief Act provides that in an appropriate case of suit for specific performance the plaintiff can ask for the reliefs provided for in clause (a) and (b), but sub-section 2 of Section 22 mandates that the aforesaid reliefs in Section 22 (1) (a) and (b) shall be granted only if the same is specifically claimed. In this case, unfortunately, the respondent / plaintiff has not claimed the alternative relief of the refund of the advance amount paid. Therefore, the appellants cannot be directed to refund the advance amount of Rs.5,00,000/- paid by the respondent to the appellants / defendants. 43. For the aforesaid reasons, the judgment and decree, dated 27.04.2009 passed in O.S.No.84 of 2008 on the file of the learned I Additional District Judge, Erode, is set-aside and the appeal stands allowed. However, there will be no order as to costs. Consequently, the connected MP is closed.