Hon'ble Prakash Krishna,J Hon'ble Arvind Kumar Tripathi (II),J (Delivered By Prakash Krishna,J) The above appeal has been filed against the original judgment and decree dated 19 .11.2004 passed by the Civil Judge Ghaziabad in original suit no.793 of 1999 whereby the suit for specific performance of contract to sell dated 14 .5.1998 in respect of house described in the plaint has been decreed. The background facts may be noticed in brief:- Mukesh Gupta (hereinafter referred to as ''the plaintiff') filed above mentioned suit on the allegations that the defendant is owner of Plot/House No. 6/110, Block-6 area measuring 464.56 square meter situate in Sector 2 & 3 T.H.A., Residential Colony, Rajendra Nagar, Ghaziabad Tehsil and District Ghaziabad. The house consists of three bed-rooms, drawing-room, dining store, lobby, garage, latrine, kitchen and one room over garage of which covered area is approximately 2000 square feet. On 14th May, 1998, the defendant executed an agreement to sell for consideration of Rs.15,000,00/- (Rupees Fifteen Lakhs). The said agreement was registered on 12th November, 1998. A sum of Rs.6,50,000/- (Rupees Six Lakh and Fifty Thousand) was paid as earnest money out of which Rs.6,00,000/- (Rupees Six Lakhs) were paid in advance and Rs.50,000/- (Rupees Fifty Thousand) before the Sub-Registrar Ghaziabad on 14th May, 1998. The defendant was served with a legal notice dated 17th March, 1999 to come to the Office of Sub-Registrar on 2nd April, 1999 for the purposes of execution of sale-deed but he did not turn up. The plaintiff has always been willing and still willing to get the sale-deed executed of the said plot and to pay the balance amount. The suit was contested on number of pleas. However, the execution of agreement of sale was not denied. The defendant came out with the case that the agreement is void for want of consideration and its registration is an act of forgery committed by officials of the Office of Sub-Registrar-III, Ghaziabad in collusion with the plaintiff. It was also set out that the defendant had entered into an earlier unregistered agreement with the plaintiff's brothers in respect of the same property but said agreement was also void ab initio for want of consideration by the plaintiff to the defendant. Certain other pleas were also set out in the written statement. He also filed counter claim. Trial Court on the pleadings of the parties framed 14 issues. Under issue no. Certain other pleas were also set out in the written statement. He also filed counter claim. Trial Court on the pleadings of the parties framed 14 issues. Under issue no. 1, it was found that the plaintiff was ready to pay the balance amount due under the agreement dated 14.5.1998. Under issue no.2, the payment of Rs.6,50,000/- as advance money to the plaintiff was found to be proved. Under issues no. 3, 4, 5 and 6, it was held that the court has jurisdiction to hear and decide the suit. The suit is not barred by principle of estoppels and acquiescence, the plaintiff has cause of action to file the suit and that the suit is not barred by Section 10 and 11 of the CPC. The plea that Deepak Gupta (brother of the plaintiff) is necessary and proper party raised under issue no. 7 was decided in favour of the plaintiff. Under issue no. 8, it was found that agreement dated 14.5.1998 is not null and void. Issues no. 9 to14 were decided in favour of the plaintiff. Suffice it to say that Learned Counsel that the appellant has not challenged the findings recorded on other issues except the following findings recorded under various issues. In support of the appeal, learned counsel for the appellant submitted the following points for consideration-- (1)The payment of Rs.6,50,000/- as advance money by the plaintiff under the agreement is not proved. (2)The plaintiff was never ready and willing to perform his part of the contract as he has no financial capacity to pay the agreed amount under the contract in question. (3)The discretion should be exercised in favour of the defendant by refusing the decree for specific performance of contract to sell in as much as the plaintiff has come to the court not with clean hands and has taken the law in his hands by forcibly entering into the property in dispute even before filing of the suit. Except the aforesaid points, Learned Counsel for the appellant did not press any other point. Point No. 1 Learned counsel for the appellant invited the attention of the Court towards certified copy of the registered agreement in question. Much emphasis was laid by him on the fact that the said agreement was presented for registration on 14th May, 1998 before Sub-Registrar-III but was not registered on that date. Point No. 1 Learned counsel for the appellant invited the attention of the Court towards certified copy of the registered agreement in question. Much emphasis was laid by him on the fact that the said agreement was presented for registration on 14th May, 1998 before Sub-Registrar-III but was not registered on that date. Shortly, before expiry period of six months, it was presented again on 12th November, 1998 when it was registered. Submission is that the registration was refused by Sub-Registrar as the advance money amounting to Rs.6,50,000/- said to have been given was not actually given. The defendant raised the said issue before Sub-Registrar on 14th May, 1998 and that is the reason that the registration was refused. Elaborating the argument, it was further submitted that there is inconsistency in between the endorsement made by Sub-Registrar endorsing a sum of Rs.6,50,000/- was given earlier while in the plaint, it has been stated that Rs.6,00,000/- was given earlier and Rs.50,000/- was given before Sub-Registrar on 14th May, 1998. The Court was also taken through the statement of the plaintiff in this regard. Learned counsel for the respondent, on the other hand, supports the judgment and submitted that a sum of Rs.6,50,000/- was given in advance. The court was taken through the statement of Mukesh Gupta PW-1. He has stated that he gave Rs.6,00,000/- or 7,00,000/- on 8th May, 1998 in lump sum at his residence at Agra to the defendant in the evening of 8th May, 1998. He gives detail of the amount and submits that a rough agreement was written on a plain paper which was destroyed subsequently. The emphasis laid by the learned counsel for the appellant is that there is no evidence to show that Rs.6,00,000/- was given by the plaintiff as he could not produce the said writing, written on plain paper. Argument of the learned counsel for the appellant that from the statement of the plaintiff inference can be drawn that payment of Rs.6,00,000/- was written in the rough paper without actually making the payment. The said argument is not correct. In such type of matter, it is usual that many times, the parties before executing formal deed note down the payment on plain sheet of paper as memorandum and after a formal deed is executed, such document is destroyed. The said argument is not correct. In such type of matter, it is usual that many times, the parties before executing formal deed note down the payment on plain sheet of paper as memorandum and after a formal deed is executed, such document is destroyed. On the deed in question, there is endorsement made by the Sub-Registrar that a sum of Rs.6,50,000/- was given earlier which has been admitted by the defendant who has put his signature on the deed in question. The said document is registered document and its execution is not in dispute. Therefore, it raises a presumption of the payment of advance money to the defendant. Much emphasis was laid by the learned counsel for the appellant that adverse inference should be drawn by the Court as it was not registered on 14th May, 1998 and was registered subsequently on 12th November, 1998. We are not prepared to draw any such inference or to doubt the registration of such document when its execution is not disputed. The defendant should have led positive evidence by way of calling either a person from the office of Sub-Registrar along with necessary record to show as to why it was not registered on 14th May, 1998. It does not appear that any such question was put in this regard to the plaintiff. Merely because, the document was registered on a later date will not ipso facto raise any doubt about its due registration. We, therefore, reject the submission of the learned counsel for the appellant and point no. 1 is decided is accordingly. The payment of Rs.6,50,000/- as advance is thus, proved. Point No. 2 Want of non compliance of Section 16(1)(c) of the Specific Relief Act was argued by the appellant's counsel. He submits that it is essential in a suit for specific performance of contract to sell to plead and prove readiness and willingness throughout to perform his part of contract by the plaintiff. Submission is that the plaint lacks the necessary averments in this regard. On a bare perusal of the plaint, it would show that in para11, it has been stated that the plaintiff has always been willing and still willing to get the sale-deed of the said plot/house as mentioned in paras-1 and 2 executed. Submission is that the word 'readiness' is missing in the plaint. On a bare perusal of the plaint, it would show that in para11, it has been stated that the plaintiff has always been willing and still willing to get the sale-deed of the said plot/house as mentioned in paras-1 and 2 executed. Submission is that the word 'readiness' is missing in the plaint. It was further submitted that the plaintiff has to prove his readiness and willingness throughout during pendency of the litigation. It could not be disputed by the appellant that there is pleading with regard to willingness and that the plaintiff is still willingness to get the sale-deed executed in para-11. The contents of para-11 has not been denied specifically in the written statement. A general denial that the contents of para-11 of the plaint are not admitted, has been stated in para-11 of the written statement. The incapacity to pay the balance amount has not been pleaded anywhere in the written statement. In this state of pleadings, statement of P.W.-1 who has stated that he always had cash with him to pay the balance amount in absence of contrary evidence having been accepted by the trial court, calls for no interference in the appeal. In the cross-examination, the plaintiff has stated that on the day when he presented the plaint had with him Rs.8.50 Lakhs. In his deposition, he further states that he is doing chemical business for the last three years. His permanent address is at Agra. Besides the chemical business, he has agricultural income also. His annual income is 70,000-75,000/-. He again reasserted that he has about Rs.9,00,000/- cash in hand. On further cross-examination, he has stated that he has not disclosed agricultural income to the Income-tax Department. Attention of the Court was also drawn to the document filed by the plaintiff relating to income-tax return. Although, the plaintiff has stated that these documents relate to him but as a fact they relate to Deepak Gupta, brother of the plaintiff and were filed under some confusion. In absence of any challenge with regard to financial capacity of the plaintiff to pay the balance amount in the written statement, we are of the opinion that the finding returned by the court below on the above issue calls for no interference by this Court and argument of the defendant/appellant on point no. 2 is rejected. In absence of any challenge with regard to financial capacity of the plaintiff to pay the balance amount in the written statement, we are of the opinion that the finding returned by the court below on the above issue calls for no interference by this Court and argument of the defendant/appellant on point no. 2 is rejected. Point No. 3 Then it was urged that under the agreement, it was agreed upon that the defendant will deliver the possession of the property in question after registration of the sale-deed but the plaintiff forcibly entered into the property in dispute with connivance of the defendant's watchman. The discretion should not be exercised by the Court in favour of such person who has taken law in his hands. The decree for specific performance by exercising the discretion in favour of the defendant be refused. We find that under the agreement, it is mentioned that the possession shall be handed over after the execution of sale-deed. There appears to be no dispute in this regard. Learned counsel for the plaintiff-respondent submits that there was an earlier unregistered agreement of sale with the plaintiff's brother by the defendant. Under the said agreement, possession was delivered to the plaintiff's brother Deepak Gupta. Deepak Gupta is residing in the property in question as a tenant. Deepak Gupta had filed a suit for permanent injunction being Suit No. 511 of 1999 restraining the defendant to evict him by force. The aforestated suit is said to be pending although interim injunction order has been passed. The said suit has been filed on the allegations that Deepak Gupta is a tenant on monthly rent of Rs.3,500/-. The trial court has dealt with the matter and found that property in dispute is in possession of Deepak Gupta as a tenant. Noticeably, the defendant has not placed copy of his written statement of that suit in this case and as such we are not in a position to examine the stand taken by the defendant in the suit. The defendant should have filed copy of his written statement. The fact that the suit is pending and there is interim order, we do not want to make any comment. It was also argued that the plaintiff gave a notice dated 17th March, 1999 asking the defendant to appear before Sub-Registrar on 2nd April, 1999 but admittedly, he did not appear. The fact that the suit is pending and there is interim order, we do not want to make any comment. It was also argued that the plaintiff gave a notice dated 17th March, 1999 asking the defendant to appear before Sub-Registrar on 2nd April, 1999 but admittedly, he did not appear. It is admitted case of the plaintiff-respondent that he did not appear on the date fixed in the notice before office of Sub-Registrar. Explanation given by him is that in reply to the said notice, the defendant asserted that he will not come on the appointed date as according to him, the agreement is void. This being so, it would have been a formality for the plaintiff to attend the office of Sub-Registrar on the appointed date i.e. 2nd April, 1999. No adverse inference can be drawn against the plaintiff. In the case of International Contractors Ltd. vs Prasanta Kumar, A.I.R. 1962 SC 77 (V 49 C 13), the Apex Court has observed as follows: "(5) ......................... As the appellant had repudiated the contract and had thus failed to carry out his part of the contract it was open to the respondent to sue for its enforcement. But it was argued on behalf of the appellant that the respondent did not tender the price, i.e., Rs. 10,001 nor was he in a position to do so and in that view of the matter the respondent is not entitled to get a decree for specific performance. In cases of this kind no question of formal tender of the amount to be paid arises and the question to be decided is not whether any money was within the power of the respondent but whether the appellant definitely and unequivocally, refused to carry out his part of the contract and intimated that money will be refused if tendered. The principle laid down in Hunter v. Daniel, (1845) 4 Hare 420 is applicable to cases of this kind. In that case Wigram, V. C., stated the position as follows:- " The practice of the Courts is not to require a party to make a formal tender where from the facts stated in the Bill or from the evidence it appears the tender would have been a mere form and that the party to whom it was made would have refused to accept the money. " Lord Buckmaster in Chalikani Venkatarayanim v. Zamindar of Tuni 50 Ind. App. 41 at p. 47 (AIR) 1923 PC 26 at p. 28) accepted this statement of the law and observed:- " Their Lordships think that that is a true and accurate expression of the law, and the question therefore is whether the answer that was sent on behalf of the mortgagee amounted to a clear refusal to accept the money. " This principle applies to the facts of the present case also and the question is whether the answer sent on behalf of the appellant amounted to an unequivocal refusal to carry out its part of the contract which in our opinion it was." Lastly, learned counsel for the appellant submits that the present market value of the property in question is around Rs.3.00 Crore. The plaintiff along with his brother Deepak Gupta are enjoying the property being in its possession on part payment of Rs.6,50,000/- at the most. There is neither equity nor law in favour of such person and the Court should pass appropriate order to compensate the defendant which has been deprived of, even the balance amount for such a long time. By the passage of time, the value of money has been gone down and it will be travesty of justice to him if at this distance of time, the Court maintains the decree for payment of balance amount. We find some force on the above submission of the learned counsel for the appellant. Shri U.N. Sharma, learned Senior Counsel after taking instructions submitted that the Court may fix reasonable amount for payment to the appellant. The Court proposes a lump sum of Rs.50,00,000/- (Rupees Fifty Lakhs) instead of balance amount to which Senior Counsel after obtaining instruction from his client whose parokar was present in the Court has given his acceptance but prayed that the amount may be paid in two equal installments. We appreciate the good gesture shown by the respondent. Viewed as above, the judgment and decree of the trial Court is confirmed subject to modification that the defendant-appellant shall be entitled to receive a sum of Rs.50.00 Lakhs from the plaintiff as part of balance sale consideration payable under the agreement in question. The plaintiff-respondent shall deposit Rs.25.00 Lakh within a period of one month before the trial court by way of bank-draft drawn in favour of the appellant. The plaintiff-respondent shall deposit Rs.25.00 Lakh within a period of one month before the trial court by way of bank-draft drawn in favour of the appellant. The balance amount shall be deposited within next one month in the like manner. The trial court shall hand over the bank-drafts to the defendant-appellant. Subject to above modification, the appeal is dismissed but no order as to costs. (A.K. Tripathi (II),J) (Prakash Krishna,J) _