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2014 DIGILAW 1790 (MAD)

Lourdhu Mary v. B. Arokiya Mary

2014-06-30

R.S.RAMANATHAN

body2014
Judgment 1. The defendants 2 to 7 in O.S.No.89 of 2005 on the file of the Additional District Court/FTC-II, Cuddalore, are the appellants. 2. The first respondent/plaintiff filed a suit for specific performance of agreement of sale, dated 19.05.2003 and the suit was decreed and aggrieved by the same, the defendants 2 to 7 filed the present appeal suit. Pending appeal suit, the first appellant died and the appellants 2 to 6 were recognized as the legal-heirs of the first appellant, vide order of this court, dated 19.07.2013 as per the memo of event date. 3. The case of the plaintiff is as follows:- The suit property originally belonged to Vanathaiyan, who died intestate leaving behind his widow the 2nd defendant, his sons namely the defendants 3 and 4 and one Arokiya Doss and the daughter the 5th defendant. Arokiya Doss died leaving behind his widow and his daughter, namely the defendants 6 and 7. Therefore, the defendants 2 to 7 are the absolute owners of the suit property. They executed a registered general power in favour of the first defendant on 07.11.2002 authorizing her to sell the suit property and the original power was with the first defendant and the registration copy was given to the plaintiff. The third defendant, who was the elder member of the family, acted as the manager of the family consisting of the defendants 2 to 7 and the third defendant was heavily indebted and therefore, he offered to sell the suit property to the plaintiff in order to discharge his debts over which there was a heavy pressure. The third defendant borrowed Rs.1,45,000/- on 06.10.1999 from one Periyanayagam, Rs.2,00,000/-on 12.12.2001 from one Sathiya Narayanan, Rs.1,80,000/-on 30.05.2002 from one Jeroldin Mary, Rs.1,40,000/- on 30.06.2002 and Rs.1,00,000/-on 03.07.2002 from one Lourdhu Mary and those debts were arranged by the plaintiff's husband and one Balakrishnan and the third defendant also written several letters to them agreeing to discharge the debts borrowed by him and on 19.05.2003, there was a Panchayat consisting of the defendants 1 to 3. The plaintiff's husband, Balakrishnan, Rajaraman creditors and others, wherein it was decided to execute an agreement of sale in favour of the plaintiff for a sum of Rs.10,00,000/-in respect of the suit property and to discharge the debts of the defendants 2 to 7 by receiving advance of Rs.8,50,000/-and in pursuance of the said decision, the first defendant as Power Agent of the defendants 2 to 7 entered into a registered agreement of sale with the plaintiff on 19.05.2003 where-under the first defendant received Rs.8,50,000/- as advance and agreed to execute a sale deed in respect of the suit property to the plaintiff within six months on receipt of balance of Rs.1,50,000/-. As the third defendant happened to be the Aunt's son of the plaintiff, the plaintiff out of her own money gave Rs.8,50,000/- as advance to the first defendant, the Power Agent of the defendants 2 to 7 and the said amount was used to discharge the debts incurred by the defendants on behalf of the family. The third defendant also executed a receipt on the same day of agreement of sale, namely 19.05.2003 in favour of the plaintiff acknowledging the receipt of Rs.8,50,000/-. Ever-since the date of the agreement of sale, the plaintiff has always been ready and willing to perform her part of contract, namely to pay the balance sale consideration and get the sale deed executed and requested the first defendant to execute a sale deed as per the agreement of sale. While so, the defendants 2 to 7 issued a notice, dated 16.06.2003 to the first defendant marking a copy to the plaintiff, admitting the execution of the power by the defendants in favour of the first respondent, but stated that the suit properties were worth about Rs.50,00,000/-and the first defendant committed breach of trust and therefore, the power of attorney executed in favour of the first defendant became void and he revoked the power on 04.06.2003. According to the plaintiff, the alleged revocation of power of attorney will not affect the rights of the plaintiff as the plaintiff entered into an agreement of sale on 19.05.2003 much prior to the alleged revocation of the power given to the first defendant. 4. According to the plaintiff, the alleged revocation of power of attorney will not affect the rights of the plaintiff as the plaintiff entered into an agreement of sale on 19.05.2003 much prior to the alleged revocation of the power given to the first defendant. 4. It is also stated that though the plaintiff is the daughter of the first defendant that does not mean that the document, namely the agreement of sale executed by the first defendant in favour of the plaintiff amounts to breach of trust and the defendants 2 to 7 are bound by the agreement of sale executed by the first defendant as their power agent. The plaintiff also denied the allegation that she had no means to purchase the suit property or to pay the advance of Rs.8,50,000/-. The suit agreement was a valid one and fully supported by consideration and the notice issued by the defendants 2 to 7 was with an intention to defraud the plaintiff and therefore, the plaintiff sent a notice on 21.06.2003 setting forth the truth and called upon the defendants to execute the sale deed as per the agreement of sale and the reply was sent by the defendants 2 to 7 on 03.07.2003 and the plaintiff tried to persuade the defendants to honour the agreement and they were evading the plaintiff and sent another notice on 13.11.2003 calling upon the defendants 2 to 7 to execute the sale deed and reply was sent on 18.11.2003. As the parties are close relatives, several Panchayats were held and the defendants were evading and therefore, the suit was filed for specific performance of agreement of sale. The plaintiff also alternatively prayed for refund of Rs.8,50,000/- with interest at the rate of 12% p.a. 5. The third defendant filed a written statement, which was adopted by the defendants 2, 4 to 7. It is stated that the suit is not maintainable and it is a clear abuse of process of court and it is fraudulent and collusive suit. Though the defendants admitted that the suit property originally belonged to Vanathaiyan and the defendants 2 to 7 were his legal heirs, they denied the allegation that the third defendant was the manager and he was heavily indebted. Though the defendants admitted that the suit property originally belonged to Vanathaiyan and the defendants 2 to 7 were his legal heirs, they denied the allegation that the third defendant was the manager and he was heavily indebted. It is also stated that the parties are close relatives and therefore, there is no question of any person manging the affairs of the properties and even assuming that the third defendant incurred debts, it will not bind the members of the family and they cannot be made liable for his debts. The third defendant borrowed loans and used to execute the promissory notes without seeing the documents and therefore, he did not admit the various promissory notes filed by the plaintiff along with the suit. The promissory notes executed by the third defendant were discharged by him and those promissory notes were also struck off and there was no promissory note to be discharged. The third defendant also denied the allegation that the plaintiff's husband and Balakrishnan arranged for loan and they never requested the plaintiff to discharge the loans and the plaintiff is the house wife and her husband was employed in the Transport Corporation and therefore, the plaintiff and her husband have no means to pay Rs.8,50,000/-as advance as alleged in the plaint. The alleged Panchayat held on 19.05.2003 was a myth and no Panchayat was held and the allegation that the promissory notes executed by the third defendant were discharged on that date were also denied and there was no negotiation to sell the suit property to the plaintiff and the plaintiff did not have means to purchase the suit property. The first defendant is the plaintiff's mother and the younger sister of the second defendant and the second defendant is an illiterate and she can only sign and she is aged about 68 years and the third defendant converted the suit property into plots and formed 36 plots named as 'Periyar Nagar' and obtained 'No Objection Certificate' from the Panchayat for the sale of the property as plots. The common spaces reserved were also handed over to the Panchayat and the space provided for public purposes were also handed over to the Panchayat. The defendants 3 and 4 are employed in Government service and the defendants 5 and 6 are not wordy-wise and the seventh defendant is a minor and the second defendant is an illiterate. The common spaces reserved were also handed over to the Panchayat and the space provided for public purposes were also handed over to the Panchayat. The defendants 3 and 4 are employed in Government service and the defendants 5 and 6 are not wordy-wise and the seventh defendant is a minor and the second defendant is an illiterate. Therefore, taking into consideration the inconvenience and the difficulties of the defendants 2 to 7, it was agreed to execute the power in favour of the first defendant, who is always available in that locality for negotiation for the sale of various plots. Considering the fact that the first defendant was the second defendant's younger sister, she was requested by the defendants 2 to 7 and they executed a general power of attorney on 07.11.2002 appointing the first defendant as their power agent. It was agreed that the properties should be sold as independent plots and it was executed only for that purpose. However, the first defendant committed breach of trust and in collusion with the plaintiff, she alleged to have entered into an agreement of sale with the plaintiff, who is none other than her daughter, with an intention to defraud and cheat the defendants 2 to 7. The defendants 2 to 7 having came to know about the suspicious attitude of the first defendant revoked the power given to the first defendant and got back the original power of attorney executed in her favour and thereunder without original power of attorney and without authorization, the first defendant cannot deal with the suit property. Latter, the defendants 2 to 7 executed a registered cancellation on 04.06.2003 cancelling the power, dated 07.11.2002 executed in favour of the first defendant. Nevertheless, on 19.05.2003, an agreement of sale was created between the first defendant and the plaintiff as if the first defendant agreed to sell the suit property for Rs.10,00,000/-and received advance of Rs.8,50,000/-. The plaintiff had no means to pay the advance of Rs.8,50,000/- and to give a colour of reality, the agreement of sale was registered and six months time was provided for completing the same. No amount was paid as per the agreement of sale and the defendants 2 to 7 never received any such amount, either from the plaintiff or from the first defendant. No amount was paid as per the agreement of sale and the defendants 2 to 7 never received any such amount, either from the plaintiff or from the first defendant. Having come to know about the agreement of sale, the defendants 2 to 7 issued a notice, dated 16.06.2003 to the first defendant stating the above facts and a copy of the notice was also sent to the plaintiff. The first defendant did not send any reply. However, the plaintiff sent a reply, dated 21.06.2003 making her claim under the agreement of sale. In the reply notice, there was no allegation regarding the alleged Panchayat or about the discharge of the debts incurred by the third defendant. In the reply notice, dated 21.06.2003, it was specifically mentioned that Rs.8,50,000/- was paid to the first defendant. The defendants promptly issued a rejoinder notice on 30.06.2003 to the plaintiff and thereafter, on 13.11.2003, the plaintiff sent another notice through counsel calling upon the defendants to execute the sale deed, after receiving the balance sale consideration and in the said notice, dated 13.11.2003, there was no mention about the debts discharged by receiving advance of Rs.8,50,000/-. The defendants sent a reply, dated 18.11.2003 reiterating their earlier stand. Thereafter, the plaintiff did not take any action for two years and filed the suit by making a new allegation that Rs.8,50,000/-paid as advance was used to discharge the debts incurred by the third defendant and the allegation in the plaint is also contrary to the recitals in the agreement of sale. The plaintiff is guilty of coming the court with unclean hands and the alleged receipt, dated 19.05.2003 alleged to have been executed by the third defendant was also not mentioned in the earlier notices, issued by the plaintiff and it was mentioned for the first time in the plaint. It is therefore stated that the alleged receipt on 19.05.2003 alleged to have been executed by the third defendant must be a forged one. The defendants also denied the various Panchayats alleged to have been held and also stated that the suit is barred by time and the plaintiff is guilty of laches and of waiver and therefore, the plaintiff is not entitled to the relief as prayed for. 6. The first defendant remained ex-parte. 7. On the basis of the above pleadings, the trial court framed the following issues:- 1. 6. The first defendant remained ex-parte. 7. On the basis of the above pleadings, the trial court framed the following issues:- 1. Whether the agreement of sale entered into between the plaintiff and the first defendant was true or whether no agreement of sale was entered into between the plaintiff and the first defendant? 2. Whether the suit is barred by limitation? 3. Whether the receipt mentioned in the plaint is true and valid? 4. Whether the plaintiff is entitled to the relief of specific performance? 5. To what relief, the plaintiff is entitled to? 8. On the side of the plaintiff 10 witnesses were examined and 32 exhibits were marked. On the side of the defendants, 20 exhibits were marked and 6 witnesses were examined and Exs.X1 to X4 were marked. 9. The trial court tried the issue Nos.1 to 4 together and held that the promissory notes Exs.A4 to A8 were executed by the third defendant and he received money from PW6, PW8 & PW9 and the agreement of sale was executed by the first defendant as power agent of the defendants 2 to 7 and an advance of Rs.8,50,000/- was paid to the first defendant and the agreement of sale Ex.A2 is a genuine one and the power of attorney was also executed by the defendants 2 to 7 and an advance of Rs.8,50,000/- was paid under Ex.A2 agreement of sale, to discharge various debts as evidenced by Exs.A2 to A8 and the sale consideration of Rs.10,00,000/- represents the correct market value of the suit property and no evidence was adduced by the defendants 2 to 7 to the effect that the sale consideration was very low and the third defendant would have come and executed Ex.A3 on 19.05.2003 during lunch hours and the agreement of sale Ex.A2 was executed while Ex.A1 document was in force and it was cancelled later only and therefore, the agreement of sale was a true and valid one and the plaintiff is entitled to enforce the agreement of sale and answered those issue in favour of the plaintiff and decreed the suit as prayed for. Aggrieved by the same, the present appeal suit is filed. 10. Mr. Aggrieved by the same, the present appeal suit is filed. 10. Mr. S. Parthasarathy, the learned Senior counsel appearing for the appellants submitted that the trial court without properly appreciating the scope of the suit for specific performance and without properly appreciating whether the plaintiff was ready and willing to perform her part of contract, erred in decreeing the suit holding that Ex.A2 the agreement of sale was a true and valid one and under the agreement of sale, an advance of Rs.8,50,000/-was paid and that was utilized to discharge various debts incurred by the third defendant, without properly appreciating the relationship of the alleged creditors and the plaintiff and the first defendant and also without properly appreciating the evidence both oral and documentary. 11. He also submitted that even according to the plaintiff, the agreement of sale was dated 19.5.2003 and six moths time was provided for completing the sale transaction and an advance of Rs.8,50,000/- was paid as per the agreement of sale and the balance of Rs.1,50,000/-has to be paid and even on 16.06.2003, the appellants issued Ex.A9 notice addressed to the first defendant marking a copy to the plaintiff stating in clear terms that the power of attorney executed by him in favour of the first defendant was cancelled and the power of attorney was not acted upon and latter cancelled the power of attorney by executing a cancellation deed as evidenced by Ex.B2 and even after brining to the notice of the plaintiff about the cancellation of power of attorney and also questioning the right and the power of the first defendant to enter into an agreement of sale Ex.A2, in their notices Exs.A12 and A14, no attempt was made by the plaintiff to file a suit for specific performance immediately and she waited for nearly two years and filed a suit only on 15.09.2005 and no reason was given for the long delay in filing the suit, even after the defendants/appellants repudiated the agreement of sale and also revoked the power of attorney Ex.A1 and that would only prove that the plaintiff was not ready and willing to perform her part of contract and therefore, the plaintiff ought not to have been granted the decree of specific performance. 12. 12. The learned Senior counsel also brought to the notice of this court about the various discrepancies in the evidence of PW1 and submitted that the agreement of sale and the alleged receipt, Exs.A2 and A3 were fraudulently created by the plaintiff and in the earlier notices, Exs.A10 and A13, there was no references to the Panchayat held and the agreement of sale was executed as per the decision of the Panchayat and the advance of Rs.8,50,000/- was utilized for various debts incurred by the third defendant and those allegations were stated for the first time in the plaint and the in the absence of those details in the notices Exs.A10 and A13 would prove that Exs.A2 and A3 were created for the purpose of the case and no sum could have been paid by the plaintiff as advance and the plaintiff had no means to pay the said amount. 13. He also submitted that admittedly the plaintiff is the house wife and her husband PW2 was employed in the Transport Corporation and his take-home salary was admittedly Rs.4,000/-to Rs.5,000/- and they had no other means and they could not have paid Rs.8,50,000/- as advance and considering the relationship between the first defendant and the plaintiff and also the creditors, the trial court ought to have held that Exs.A2 and A3 were fraudulent documents created by the plaintiff with the help of the PW2, PW3 and PW6 to PW8 and ought not to have relied upon those documents and ought to have dismissed the suit. 14. The learned Senior counsel further submitted that admittedly the plaintiff is the daughter of the first defendant and PW2 is the plaintiff's husband and PW3 is the close friend of PW2 and PW3 and PW5 are co-brothers. PW8 and PW9 the alleged creditors are the sisters of PW1 and Ex.A4 promissory note executed in favour of the Periyanayakam is the father of PW1 and except Ex.A5 the promissory note executed in favour of Sathiya Narayanan, the other promissory notes were alleged to have been executed in favour of the father and sisters of PW1 and all of them joined together and conspired to cheat the defendants 2 to 7 and created Exs.A2 and A3 and these aspects were not properly appreciated by the trial court. 15. 15. The learned Senior counsel further submitted that though it was stated that Panchayat was held several times and finally the Panchayat was held on 19.05.2003 and as per the decision of the Panchayadars taken on 19.05.2003, an agreement of sale was executed in favour of the plaintiff for a sum of Rs.10,00,000/- and an advance of Rs.8,50,000/-was paid by the plaintiff to the first defendant, the power of attorney, no details about the names of the Panchayadars were mentioned in the plaint or in evidence and according to the evidence of PW2 to PW4, PW6, PW8 and PW9, no Panchayat was held on 19.05.2003 as alleged by the plaintiff and according to the evidence of attesting witnesses and creditors, on 19.05.2003 the agreement was ready when they went to the Sub Registrar's Office. Further, as per the agreement of sale Ex.A2, an advance of Rs.8,50,000/- was paid to the first defendant and in Ex.A2, there was no reference to various debts incurred by the third defendant to be discharged and there was no reference to discharge the various debts by the third defendant or by the first defendant with the advance amount alleged to have been received under the agreement of sale and Ex.A3 the alleged receipt executed by the third defendant also appears to be unnatural and there was no necessity for the third defendant to execute a receipt for having discharged the promissory notes with the help of the amount received by the plaintiff, in-as-much-as, as per the agreement of sale, the advance was paid to the first defendant and there was no reference regarding the loans to be discharged with the help of the advance paid under Ex.A2 and those discrepancies were not properly appreciated by the trial court. 16. 16. He also submitted that according to the evidence of PW8 and PW9, the third defendant discharged the loans payable to them and Periyanayagam and they gave back the discharged promissory notes by tearing off the stamps to the third defendant and PW3 also admitted that the discharged promissory notes were given back to the third defendant, but surprisingly those discharged promissory notes were produced by PW1, the plaintiff and no explanation was given by PW1 regarding the custody of those promissory notes and that would only prove that Exs.A4 to A8, except Ex.A5 were created by PW1 to PW8 and PW9 for the purpose of defrauding the defendants 2 to 7. 17. The learned Senior counsel further submitted that though the third defendant admitted the execution of Ex.A5 the promissory note in favour of Sathiya Narayanan, he denied the discharge of that promissory note and he admitted his liability to Sathiya Naranayan and Sathiyan Narayan also colluded with the plaintiff and even according to the evidence of Sathiya Narayan (PW6), he gave the discharged promissory notes to PW2 and if really the promissory notes were discharged by the third defendant by paying the amount to the Sathiya Narayan, Sathiya Narayan should have returned the discharged promissory note only to the third defendant and the promissory note could not have been produced by the plaintiff and that would also prove that Ex.A5 was also used by the plaintiff with the connivance of PW2 to make it appear that loans payable to Sathiya Narayan was paid with the help of the advance amount by Ex.A2. 18. The learned Senior counsel further submitted that though the execution of power of attorney by the defendants 2 to 7 is admitted, it is the further case of the defendants 2 to 7/appellants herein that after the execution of the power of attorney, the first defendant did not do anything and also suspected the first defendant and revoked the power and got back the original power from the first defendant. This was confirmed by the production of the original power of attorney Ex.B1 by the defendants/appellants and the same was marked during PW1 cross examination. This was confirmed by the production of the original power of attorney Ex.B1 by the defendants/appellants and the same was marked during PW1 cross examination. If really the original power of attorney was with the first defendant, on the date of execution of Ex.A2, the agreement of sale, having regard to the payment of Rs.8,50,000/- against the total consideration of Rs.10,00,000/-, the plaintiff would have got the original power of attorney from the first defendant and would not have allowed the original power to be retained by the first defendant and further no explanation was given by the plaintiff for not getting the original power, while executing the agreement of sale and production of the original power by the appellants, would only probabilise the case of the defendants/appellants that power was cancelled even prior to Ex.A2 agreement of sale and that was the reason, the plaintiff was not able to produce the original power of attorney. 19. He also submitted that there is no pleading that the first defendant colluded with the other defendants and gave back the original power of attorney to defeat her rights and there was no evidence to that effect. Admittedly, the first defendant is the mother of the plaintiff and the other creditors, namely the PW8 and PW9 are the sisters of the plaintiff and the daughters of the first defendant and all these people colluded and created the promissory notes Exs.A4, A6 to A8, A3 receipt and Ex.A2 agreement of sale. Admittedly, the first defendant is the mother of the plaintiff and the other creditors, namely the PW8 and PW9 are the sisters of the plaintiff and the daughters of the first defendant and all these people colluded and created the promissory notes Exs.A4, A6 to A8, A3 receipt and Ex.A2 agreement of sale. The learned Senior counsel, therefore, submitted that there was no explanation for the delay in filing the suit, even after the appellants denied the agreement of sale and also cancelled the original power of attorney given to PW1 and the plaintiff was not having money to pay Rs.8,50,000/-, as admittedly the plaintiff was the house wife and her husband PW2 was only earning Rs.4,000/- to Rs.5,000/-per month and no explanation was given by the plaintiff for the production of the discharged promissory notes, which ought to have been with the third defendant and no reference regarding the discharge of promissory notes in the agreement of sale and also in the earlier notices the execution of Ex.A3 receipt by the third defendant in favour of the plaintiff would all prove that the plaintiff did not come to the court with clean hands and the plaintiff did not prove her readiness and willingness to perform her part of contract and the plaintiff produced fraudulent documents and therefore, the plaintiff ought not to have been granted the relief of specific performance. 20. He also relied upon the following the judgments in support of his contention:- 1. 2013-1-L.W.938 in the case of T. Balasubramanian vs. M. Kanthasamy. 2. AIR 2010 SUPREME COURT 2809 in the case M/s. Kapil Corepacks Pvt. Ltd., vs. Harbans Lal. 3. AIR 2010 RAJASTHAN 128 in the case of Nabi Khan (deceased by L.Rs. and Ors) vs. Roojdar and others. 4. Alamelumangai vs. Smt A.Krishnaveni. 5. 2011(3)CTC 205, in the case of S.Narayanappa vs. 1.Sampangi Ramayya and others. 6. (2005)12 SCC 77, in the case of State of Rajasthan and others vs. Basant Nahata. 7. 1993(2)LW 86 in the case of Nallaya Gounder & another vs. P. Ramaswami Gounder etc., & 3 others. 8. 1993-2-L.W-84 in the case of G. Chelliah Nadar (died) and 4 others vs. Periasami Nadar and 3 others. 9. 2012(1)CTC 46 in the case of S. Thirugnanasambandam vs. P. Kaliyaperumal and others. 21. On the other hand, Mr. R. Subramanian, the learned counsel appearing for Mr. 8. 1993-2-L.W-84 in the case of G. Chelliah Nadar (died) and 4 others vs. Periasami Nadar and 3 others. 9. 2012(1)CTC 46 in the case of S. Thirugnanasambandam vs. P. Kaliyaperumal and others. 21. On the other hand, Mr. R. Subramanian, the learned counsel appearing for Mr. D. Ravichandran submitted that the execution of power of attorney was admitted by the appellants/defendants 2 to 7 in favour of the first defendant and therefore, as per the power attorney, the first defendant was competent to enter into an agreement of sale and Ex.A2 was executed on 19.05.2003 and on that date, admittedly, there was no cancellation of power as evidenced by Ex.B2 and therefore, on the date of execution of Ex.A2 the agreement of sale, the power was valid and therefore, the defendants 2 to 7 are bound by the agreement of sale entered into by the first defendant. 22. He also submitted that the execution of the agreement of sale (Ex.A2) and the receipt (A3) were proved by the plaintiff by examining PW3 & PW5 and PW4 gave evidence regarding the typing of Ex.A3, as per the instructions of Rathinam (PW7) and PW10 gave evidence regarding Ex.A4 promissory note in favour of Periyanayagam and PW6 gave evidence regarding the promissory note executed by the third defendant in his favour and the third defendant also admitted the execution of promissory note in favour of PW6 and the creditors PW8 and PW9 also gave evidence regarding the money advanced to the third defendant and their evidences were not impeached through cross examination by the appellants and therefore, the trial court rightly believed the evidence of PW1 to PW10 and held that agreement of sale Ex.A2 was executed and with the help of advance received, the debts incurred by the third defendant, were discharged and therefore, there is no need to interfere with the findings of the trial court, which is based on reasons. He further submitted that the third defendant was heavily indebted and he also admitted the same in the evidence and that was also corroborated by Exs.A18 to A26. 23. He further submitted that the third defendant was heavily indebted and he also admitted the same in the evidence and that was also corroborated by Exs.A18 to A26. 23. He also submitted that in a suit for specific performance, not only the plaintiff, but the defendant must also come to the court with clean hands and when the defendants pleaded false case, the court ought to have decreed the suit for specific performance and in this case, the execution of Exs.A2 and A3 were proved by the plaintiff through proper witnesses and considering the fact that Rs.8,50,000/-paid as advance was also used for discharging of various promissory notes Exs.A2 to A8 and they have also proved the same by examination of PW3 to PW10 and therefore, the trial court rightly decreed the suit. He further submitted that the trial court rightly held that the suit was not barred by time and the suit was filed within three years from the date of execution of Ex.A2 and even though, there was a delay of eighteen months in filing the suit, after the receipt of notices, the delay cannot be taken advantage of by the defendants, when the plaintiff filed the suit within the period of limitation and therefore, the appeal suit is liable to be dismissed. 24. He also submitted that when the defendants 2 to 7 have sold the suit property pending suit or prior to the filing of the suit, it is not open to them to contend that the plaintiff was not ready and willing to perform her part of contract and relied upon the judgment reported in (2007)9 SCC 660 in the case of M.M.S. Investments, Madurai and others vs. V. Veerappan and others. 25. He also relied upon the the following judgments in support of his contention. 1. (2008)11 SCC 45 in the case of Silvey and others vs. Arun Varghese and another. 2. (2006)11 SCC 587 in the case of Sugani(Mst) vs. Rameshwar das and anothers. 3. (2000)6 SCC 420 in the case of Motilan Jain vs. Ramdasi Devi (smt) and others. 4. (2011)4 SCC 741 in the case of Pramod Buildings and Developers Private Limited vs. Shantha Chopra. 5. (2002)2 MLJ 112 in the case of K. Jayakumar vs. Robert and others. 6. (2003)3 MLJ 383 in the case of Bakiyalakshmi and others vs. Alamelu (died) and others. 7. 4. (2011)4 SCC 741 in the case of Pramod Buildings and Developers Private Limited vs. Shantha Chopra. 5. (2002)2 MLJ 112 in the case of K. Jayakumar vs. Robert and others. 6. (2003)3 MLJ 383 in the case of Bakiyalakshmi and others vs. Alamelu (died) and others. 7. AIR 1973 SUPREME COURT 559 in the case of Dr.Jiwan Lal and others, vs. Brij Mohan Mehra and another. 8. AIR SUPREME COURT 1405 in the case of Mademsetty Satyanarayana vs. G. Yellji Rao and others. 9. 2013(6)CTC 624 in the case of G. Anbazhagan and another vs. G. Monoharan (Deceased) and others. 10. (2011)8 SCC 601 in the case of Coromandel Indag Products Private Limited vs. Garuda Chit and Trading Company Private Limited and another. 11. (2013)8 SCC 131 in the case of Satya Jain (dead) through Lrs and others vs. Anis Ahmed Rushdie (dead) through Lrs. and others. 12. AIR 1979 (SC) 1241 in the case of Prakash Chandra vs. Angadlal and others. 26. On the basis of the above submissions, the following points for consideration arise in this appeal suit. 1. Whether the agreement of sale Ex.A2 is true and binding on the appellants? 2. Whether any consideration was paid under Ex.A2 as alleged by the plaintiff? 3. Whether the debts were discharged by utilizing the advance amount of Rs.8,50,000/-as alleged by the plaintiff? 4. Whether Ex.A3 was executed by the third defendant in favour of the plaintiff? 5. Whether the plaintiff was ready and willing to perform her part of contract? 6. Whether the plaintiff is entitled to the relief of specific performance? 27. Point for consideration 5 and 6: According to the plaintiff, the agreement of sale Ex.A2 was executed on 19.05.2003 and six months time was granted for completing the transaction and an advance of Rs.8,50,000/- was paid to the first defendant, the power of attorney of the defendants 2 to 7, the appellants herein. The balance amount was Rs.1,50,000/-and admittedly, the suit was filed only on 15.09.2005. The time prescribed under the agreement of sale expired on 19.11.2003 and no explanation was given by the plaintiff for not filing the suit immediately thereafter. 28. The balance amount was Rs.1,50,000/-and admittedly, the suit was filed only on 15.09.2005. The time prescribed under the agreement of sale expired on 19.11.2003 and no explanation was given by the plaintiff for not filing the suit immediately thereafter. 28. It is also admitted that on 16.06.2003 under Ex.A9, the appellants sent a notice through their counsel stating that the first defendant, the power of attorney committed breach of trust and her movements were suspected and therefore, revoked the power given to her and got back the original power of attorney from her and she also promised not to act as per the power of attorney and that was believed by them and therefore, they did not execute any revocation deed, as the power was revoked orally and also stated that contrary to the undertaken given by the first defendant, she entered into an agreement of sale on 19.05.2003 in collusion with her daughter, the plaintiff and also disputed the payment of advance of Rs.8,50,000/-by the plaintiff to her mother the first defendant, the power of attorney of the appellants and also questioned the means of the plaintiff to pay the advance amount and also informed about the revocation of the power deed by executing the cancellation deed, dated 16.06.2003. This notice Ex.A9 was also marked to the plaint and the plaintiff sent a reply Ex.B9 on 21.06.2003. In that reply notice, she denied various allegations made in the notice Ex.A9 given by the appellants and also stated that the appellants received the benefit of the advance paid under the agreement of sale and the action of the appellants is punishable under sections 109, 120B, 418, 406 and 477 IPC and also expressed her willingness to pay the balance sale consideration and requested the appellants to execute a sale deed and that was denied by the appellants by sending Ex.A12 notice, dated 30.06.2003 and that was also replied by the plaintiff by her notice, Ex.A13, dated 13.11.2003 and in Ex.A13 also the plaintiff called upon the appellants to receive the balance consideration and to execute a sale deed in her favour. Therefore, it is seen from Exs.A9 to A13 that the plaintiff was aware about the stand of the appellants regarding the denial of the agreement of sale, cancellation of the power of attorney and the refusal on the part of the appellants to execute the sale deed as per the alleged agreement of sale Ex.A2. Nevertheless, no action was taken by the plaintiff immediately after issuance of Ex.A13 reply notice by filing a suit for specific performance and she waited for nearly 22 months and finally filed the suit only on 15.09.2003. In the plaint as well as in the evidence, no explanation was given by the plaintiff for not filing the suit immediately in November 2003 after the issuance of the Ex.A13 notice. 29. In a suit for specif performance, the plaintiff must plead and prove that she is always ready and willing to perform her part of contract and readiness relating to the capacity to pay the money as per the agreement of sale and willingness will be reflected from the conduct of the parties. It is not the case of the plaintiff that the appellants/defendants made promises to execute a sale deed and she believed them and therefore, she kept quite and that was the reason for the delay. 30. As stated supra, the plaintiff was aware of the stand taken by the appellants regarding the agreement of sale and the appellants specifically disputed their liability to execute a sale deed as per the agreement of sale and also denied, the agreement of sale Ex.A2 stating that it was created for the purpose of defrauding and cheating the appellants. Therefore, in such circumstances, a prudent man would have filed a suit immediately after the exchange of notices and that would prove the conduct of the plaintiff that she was ready and willing to perform her part of contract. In this case, the plaintiff has not filed a suit immediately after the exchange of notices and no explanation was given by her for the delay in filing the suit and even as per the agreement of sale, the time granted for completing the sale transaction also expired on 19.11.2003 and in such circumstances, in the absence of any valid explanation for the delay, it has to be held that the plaintiff was not ready and willing to perform her part of contract. 31. 31. Further, having averred in Exs.A10 and A13, the reply notices sent by the plaintiff stating that she was ready and willing to perform her part of contract, she has not filed the suit immediately thereafter. Though it can be contended that the suit was not barred by time as the suit was filed from three years fixed as per the agreement of sale, being a suit for specific performance, the court has got every discretion to deny the relief when the conduct of the plaintiff clearly proved that the plaintiff was not ready and willing to perform his part of contract. 32. In the judgment reported in (2013)1 SCC 625 in the case of Virgo Industries (Eng.) Private Limited vs. Venturetech Solutions Private Limited, the Hon'ble Supreme court observed that there is no provision in the Specific Relief Act, 1963 requiring a plaintiff claiming the relief of specific performance to wait for expiry of the due date for performance of the agreement in a situation where the defendant may have made his intentions clear by his overt acts. In that case, the Hon'ble Supreme court has dealt with the provisions of Order 2 Rule 2 CPC and earlier a suit was filed for injunction and latter, the same plaintiff filed a suit for specific performance and a plea was taken by the defendant that subsequent suit for specific performance was barred under Order 2 Rule 2 CPC, as the relief of specific performance was available to the plaintiff, when he filed a suit for injunction in the first instance and accepting the contention of the defendant, the Hon'ble Supreme Court held as above. 33. I also had an occasion to deal with such a situation and in a case reported in 2011(3)CTC 205 in the case of S.Narayanappa vs. Sampangi Ramayya. In that case, the property was sold by the defendant and even thereafter, no action was taken by the plaintiff to file a suit, after knowing about the sale by the defendant. 33. I also had an occasion to deal with such a situation and in a case reported in 2011(3)CTC 205 in the case of S.Narayanappa vs. Sampangi Ramayya. In that case, the property was sold by the defendant and even thereafter, no action was taken by the plaintiff to file a suit, after knowing about the sale by the defendant. In such circumstances, I held that though under the agreement of sale, time was given to the respondent to complete the contract, the respondent ought not to have waited for the completion of the period, when he came to know that the property was sold by the defendant in favour of the appellants and in the absence of any explanation for delay in filing the suit, the plaintiff is not entitled to the relief of specific performance. 34. In the judgment reported in 2012(1)CTC 46 in the case of S. Thirugnanasambandam vs. P. Kaliyaperumal, I held that when the plaintiff filed a suit three years after issuance of reply notice by the defendant it would prove that the plaintiff was not ready and willing to perform his part of contract and the delay in filing the suit for specific performance, after the receipt of notice would disentitle the plaintiff to seek the discretionary relief of specific performance. 35. In this case also, as stated supra, even in the year 2003, the plaintiff was aware about stand taken by the appellants, she did not care to file a suit immediately and no explanation was given by the plaintiff for filing the suit after 22 months and therefore, even accepting the case of the plaintiff that Ex.A2 agreement of sale was valid and Ex.A3 receipt was executed by the third defendant and an advance of Rs.8,50,000/-was utilized for the discharge of various debts incurred by the third defendant, having regard to the unexplained delay in filing the suit after knowing the attitude of the appellants, the plaintiff is not entitled to the discretionary relief of specific performance and I hold that the plaintiff was not ready and willing to perform her part of contract and the plaintiff was also not entitled to the relief of specific performance and answered the Point Nos.5 and 6 in favour of the appellants and against the first respondent/plaintiff. 36. 36. By answering the point Nos.5 and 6 against the plaintiff/first respondent, the appeal suit could not be allowed without giving any finding regarding the other points for consideration. Nevertheless, having regard to the prayer in the plaint, wherein the plaintiff sought for the alternative relief of refund of amount advanced and also having regard to the arguments advanced by both sides, on the genuineness of Ex.A2, the agreement of sale and Ex.A3 receipt, I would like to answer those points for consideration. 37. Points for consideration 1 to 4:- It is admitted by the appellants/defendants 2 to 7 that they executed a power in favour of the first defendant authorizing the first defendant to sell the suit property. The appellants further submitted that the first defendant herein, the power of attorney committed breach of trust and did not take any steps to sell the properties and she acted against the interest of the appellants and therefore, they orally revoked the power and informed the same to the first defendant and got back the original power from the first defendant and thereafter, the first defendant without the knowledge of the appellants entered into an agreement of sale Ex.A2 with the plaintiff only to defraud the appellants and no consideration was paid under the agreement of sale Ex.A2. Admittedly, the appellants did not inform the plaintiff or other 3rd parties about the revocation of the power given to the first defendant and they only informed about the revocation of the power to the power of attorney, namely the first defendant. Admittedly, the appellants also did not make any publication regarding the oral revocation of the power and they cancelled the power by executing a cancellation deed Ex.B2 on 04.06.2003. Admittedly, the agreement of sale Ex.A2, was executed on 19.05.2003 and therefore, in the absence of any notice of revocation to the plaintiff, the plaintiff is entitled to enter into the agreement of sale with the first defendant and an agreement of sale between the first defendant and the plaintiff is binding on the appellants. 38. However, the above proposition of law, cannot be applied to the facts of this case. 38. However, the above proposition of law, cannot be applied to the facts of this case. Admittedly, the plaintiff is the daughter of the first defendant, the power of attorney and the first defendant is the sister of the second defendant, one of the appellants and the defendants 3 to 7 are the children of the second defendant. It is the specific case of the appellants that under the agreement of sale, no consideration was paid. It is admitted by the plaintiff, while cross examining her as PW1 that she was a house wife and her husband was earning Rs.4,000/-to Rs.5,000/-, who was an employee in the Transport Corporation. PW2, the husband of the plaintiff also affirmed the same. Therefore, the question would arise about the source of consideration of Rs.8,50,000/- alleged to have been paid by the plaintiff. Admittedly PW8 and PW9, the alleged creditors of the first defendant are the sisters of the plaintiff and the daughters of the first defendant, one of the creditors Periyanayagam, in whose favour Ex.A4 promissory note was executed is the father of PW1. According to the plaintiff, after receiving the advance of Rs.8,50,000/- the loans payable under Exs.A4 to A8 the promissory notes in favour of Periyanayagam, PW8 and PW9 and also PW2, were discharged and PW6, PW8 and PW9 were examined to prove the same. 39. As rightly submitted by the learned Senior counsel Mr. S. Parthasarathy, the learned counsel appearing for the appellants, if the plaintiff was not aware of the revocation of the power, she would have insisted about the original power, when she paid Rs.8,50,000/- as advance against the total consideration of Rs.10,00,000/-. No explanation was given by PW1 for not obtaining the original power, after paying Rs.8,50,000/-to the first defendant under Ex.A2. Even assuming that the first defendant happens to be her mother and she believed her mother and trusted her, she would have got the original power from her mother, after the exchange of notices by the appellants/defendants 2 to 7. Further, the first defendant was examined as DW3 and she did not also give any explanation for not having the custody of the original power with her and she did not send any reply to Ex.A9 notice, which was addressed to her. Further, the first defendant was examined as DW3 and she did not also give any explanation for not having the custody of the original power with her and she did not send any reply to Ex.A9 notice, which was addressed to her. She also did not file any written statement and PW1 also did not give any explanation for not getting the original power, while executing Ex.A2. Admittedly, the original power Ex.B1 was produced by the appellants and marked by them during the cross examination of PW1 and the plaintiff only filed the registration copy of the Ex.B1. In this context, the contents of the notice Ex.A9 issued by the appellants to the first defendant have to be noted, wherein it has been stated that the power was cancelled and the original power was handed over by the first defendant to the appellants and she also promised not to act upon the power and latter, she entered into an agreement of sale Ex.A2 with the plaintiff. Therefore, the averment made in the notice Ex.A9 regarding the revocation of power by the appellants and hand over of the power by the power of attorney after revocation appears to be more probable. Further, even though notice regarding the revocation was not made public and the power was cancelled only on 04.06.2003 and earlier to that, Ex.A2 was executed on 09.05.2003, having regard to the close relationship between the parties, the plaintiff being the daughter of the power of attorney the first defendant and no explanation was given for not getting the original power, while entering into an agreement of sale by paying Rs.8,50,000/-as advance against the total sale consideration of Rs.10 lakhs and no denial regarding the revocation of power by the appellants, which was earlier to the agreement of sale, in the reply notices Exs.A10 and A13 and in the plaint, it would only prove that the plaintiff was also aware of the cancellation of the power, earlier to the agreement of sale. Even assuming that the plaintiff was not having knowledge about the cancellation of the power, she would have insisted about the production of original power at the time of Ex.A2 and it is admitted by the plaintiff that while Ex.A2 was executed only Ex.A1 registered copy of the power was available and the original power was not produced at that time. The plaintiff also die ask for the production of the power of attorney and those factors would probablise the case of the appellants that the plaintiff was also aware of the oral cancellation of the power and therefore, the first defendant had no authority to enter into an agreement of sale with the plaintiff as agent of the appellants. 40. A reading of the recitals in Ex.A2, the recitals in Exs.A10 and A13 reply notices sent by the plaintiff would also prove that the allegation made in the plaint are false. It is stated in the plaint that on 19.05.2003, there was a Panchayat consisting of the defendants 1 and 3, the plaintiff husband, Balakrishnan and K.Rajaraman the creditors and others and it was decided in the Panchayat to execute the agreement of sale in favour of the plaintiff for Rs.10,00,000/-and to discharge the debts of the defendants 2 to 7 by receiving advance of Rs.8,50,000/-. In the reply notice Ex.A10, there was no reference to the Panchayat held on 19.05.2003 and as per the decision taken by the panchayadars, the agreement of sale was entered into and advance of Rs.8,50,000/- was paid under the agreement of sale, which was utilized for discharging the loans. Even in Ex.A2, there was no reference to the Panchayat held on 19.05.2003 and discharging of various amounts due under the promissory notes payable by the third defendant by utilizing the advance amount of Rs.8,50,000/-. PW3, PW4 and PW5 did not state that a Panchayat was held on 19.05.2003 to settle the debts incurred by the third defendant and according to the evidence of PW1, Panchayat was held earlier and also on 19.05.2003. According to Ex.A2, the amount was paid to the first defendant. PW7 in his cross examination stated that the first defendant power of agent received the advance and went to Sub Registrar's office and after executing the agreement of sale, went to her house and she was taken by her daughter the plaintiff and he did not state that the debts incurred by the third defendant were discharged by the first defendant by utilizing the advance amount. 41. Further, PW1 in her cross examination stated that under Ex.A2, no amount was paid in cash. In Ex.A10 the reply notice sent by the plaintiff, it was stated that an advance of Rs.8,50,000/-was received by the defendants 2 to 7. 41. Further, PW1 in her cross examination stated that under Ex.A2, no amount was paid in cash. In Ex.A10 the reply notice sent by the plaintiff, it was stated that an advance of Rs.8,50,000/-was received by the defendants 2 to 7. According to the evidence of PW8 and PW9, the debts were discharged by the third defendant and they gave back the discharged promissory notes Ex.A4, A6, A7 and A8 to the third defendant and PW6 Sathiya Narayanan stated that the third defendant paid money and he gave the discharged promissory notes to PW2, the husband of the plaintiff. Therefore, according to PW8 and PW9 as well as PW5, the discharged promissory notes were given to the third defendant and that is also in consonance with the practice that the borrower, after discharging the promissory notes would get back the discharged promissory notes. But in this case, the alleged promissory notes, which were discharged were produced by the plaintiff and no explanation was given by the plaintiff for having obtained the custody of those promissory notes, when admittedly the amounts were discharged by the third defendant to the creditors and the creditors also gave evidence that they gave back the promissory notes to the third defendant. Further, the execution of Ex.A3, the alleged receipt also created suspicion about the genuinity of Ex.A3. As per the evidence of PW1 and as per the recitals in Ex.A2, the advance of Rs.8,50,000/- was paid to the first defendant P.Kuzhanthai Ammal as she was the power agent of the appellants and she was competent to receive the amount. As stated above, there was no reference to the discharge of the promissory notes with the help of the money received as advance in Ex.A2. Even assuming that the first defendant after receiving the advance handed over the said amount of Rs.8,50,000/-to the third defendant, who in turn discharged those promissory notes by paying the money due to the creditors, namely PW6, PW8 and PW9 and Periyanayakam, there was no necessity for the third defendant to execute a receipt in favour of the plaintiff. If at all an receipt would have been executed by the third defendant, it must be in favour of the first defendant, who was his power of attorney and therefore, the first defendant ought to have obtained a receipt from the third defendant for having received the amount by the third defendant. If at all an receipt would have been executed by the third defendant, it must be in favour of the first defendant, who was his power of attorney and therefore, the first defendant ought to have obtained a receipt from the third defendant for having received the amount by the third defendant. Further, the plaintiff has nothing to do with the debts incurred by the third defendant and in the notices Exs.A10 and A13 also no reference was made regarding the discharge of the promissory notes by utilizing the advance amount and that story was introduced for the first time in the plaint and therefore, there was no necessity for the third defendant to execute the receipt in favour of the first defendant mentioning the discharge of various promissory notes alleged to have been executed in favour of those persons, namely Periyanayagam, Sathiya Narayanan (PW6), Jeraldin Mary(PW8) and Lourdhu Mary(PW9). Therefore, the execution of the receipt Ex.A3 by the third defendant in favour of the plaintiff would also raise suspicion and according to the third defendant, his signature was obtained by PW2 on various occasions, when he helped him to get loans and that was misused and fabricated by PW2, who is the non-other than the husband of the plaintiff. 42. Further, having regard to the social status of PW8 and PW9, it is highly doubtful whether they were in a position to advance such a huge amount to the third defendant. Though, the third defendant was borrowing money from various persons and that was also sought to be proved by Exs.A18 to A26, those letters were not addressed to the creditors, whose debts were discharged under Exs.A4 to A8 and there was no demand by them, even though some of the promissory notes were time barred. For example, the promissory note executed in favour of Periyanayagam, the father of the plaintiff was dated 06.10.1999 and on the date of discharge of that promissory note, it was time barred and no demand was earlier made by Periyanayagam, demanding the amount due under the promissory note. For example, the promissory note executed in favour of Periyanayagam, the father of the plaintiff was dated 06.10.1999 and on the date of discharge of that promissory note, it was time barred and no demand was earlier made by Periyanayagam, demanding the amount due under the promissory note. PW9 Lourudhu Mary alleged to have been advanced Rs.1,40,000/- on 30.06.2002 and also advanced another sum of Rs.1,00,000/- on 03.07.2002 and in the promissory note executed on 03.07.2002, there was no reference to the earlier loan and there was no proof adduced by the PW8 and PW9 to the effect that they had means to advance such huge sum to the third defendant. Unfortunately, the trial court without appreciating all those unnatural elements was carried away by the evidence of PW3, PW4, PW5 and PW10 and held that the promissory notes were proved by examining the attestors and also by the creditors and that would also prove the passing of consideration under Ex.A2. According to me, the production of discharged promissory notes by PW1, when admittedly the discharged promissory notes were handed over to the third defendant and also the relation between the plaintiff and PW8 and PW9, would probablise the case of the appellants that the promissory notes Ex.A4, A6 to A8 were created by the plaintiff in collusion with PW8 and PW9 and also with the help of PW2, PW3 to PW5 and PW10 to make it appear that consideration was utilized for discharge of promissory notes, the loan incurred by the 3rd defendant. 43. As regard Ex.A5, the loans payable to Sathiya Narayan (PW6), it is the specific case of the fourth defendant that he did not discharge the promissory notes and admittedly, Sathiya Narayanan (PW6) is the son of PW5 and PW3 and PW5 are co-brothers and to give a colour of authenticity, the loan payable to Sathiya Narayanan was also stated to be discharged with the help of the advance amount and when the loan was discharged, the promissory notes ought not to have been given to the third defendant. But according to PW6, he handed over all the discharged promissory notes to PW2 the husband of the plaintiff and that would also prove that the loan payable to Sathiaya Narayan was discharged only to give a colour of authenticity to the case of the plaintiff that Rs.8,50,000/- was paid as advance. 44. But according to PW6, he handed over all the discharged promissory notes to PW2 the husband of the plaintiff and that would also prove that the loan payable to Sathiaya Narayan was discharged only to give a colour of authenticity to the case of the plaintiff that Rs.8,50,000/- was paid as advance. 44. Considering all these aspects, I am of the view that even though on the date of execution of Ex.A2, the cancellation of power was not intimated to the plaintiff and therefore, the first defendant was competent to enter into an agreement of sale with the plaintiff, the subsequent conduct and the relationship between the parties and the production of the original power was by the defendants 2 to 7/appellants and the production of the promissory notes discharged by the plaintiff would lead to conclusion that Ex.A2 must have been created in collusion with the first defendant with the help of PW2 to PW5 and therefore, I hold that Ex.A2 was not a true and valid document and the same not binding on the appellants and except the consideration of Rs.2,00,000/- paid to Sathiya Narayanan, which loan was admitted by the appellants, no other consideration was paid under Ex.A2. I, therefore, hold that no consideration was passed under Ex.A2, except the consideration of Rs.2,00,000/-paid to Sathiya Narayanan and the debts were not discharged by utilizing the advance amount of Rs.8,50,000/-, except the payment of Rs.2,00,000/- to Sathiya Narayan (PW6) and Ex.A3 was not executed by the third defendant and there was no necessity for the third defendant to execute such a document in favour of the plaintiff, when the amount was not paid by the plaintiff to the third defendant and there was no reference regarding the discharge of the loan by utilizing the advance amount in the agreement of sale Ex.A2 or in the earlier notices Exs.A10 and A13 and therefore, the point Nos.1 to 4 are answered in favour of the appellants and against the plaintiff. 45. Further, in the judgment reported in 1993-2-LW 86 in the case of Nallaya Gounder & another vs. P.Ramaswami Gounder etc. & 3 others, this court disbelieved the holding of Panchayat, when there was no reference regarding date, on which the panchayat was held either in the plaint or in evidence and therefore, such Panchayat cannot be believed. 45. Further, in the judgment reported in 1993-2-LW 86 in the case of Nallaya Gounder & another vs. P.Ramaswami Gounder etc. & 3 others, this court disbelieved the holding of Panchayat, when there was no reference regarding date, on which the panchayat was held either in the plaint or in evidence and therefore, such Panchayat cannot be believed. In this case also, it is stated in the plaint that Panchayat was held earlier to 19.05.2003 and no details regarding the members consisting of the Panchayat was pleaded and in Ex.A2 there was no reference to any Panchayat. Hence, the story of Panchayat held and it was decided by the Panchayadars to enter into an agreement of sale created by the plaintiff cannot be accepted. 46. Further, the judgments reported in (2002)2 MLJ 112 in the case of K.Jayakumar vs. Robert and others, (2011)4 SCC 741 in the case of Pramod Buildings and Developers Private Limited vs. Shanta Chopra and (2011)8 SCC 601 in the case of Coromandel Indag Products Private Limited vs. Garudu Chit and Trading Company Private Limited and another, are actually in favour of the appellants and as per the judgment reported in (2011) 8 SCC 601 , the burden is on the plaintiff to prove his readiness and willingness to perform his part of contract and as per the judgment reported in (2002)2 MLJ 112 , when notice was issued stating that time was essence of contract and the contract was also terminated, the plaintiff waited a year to file a suit and therefore, the plaintiff was not entitled to the relief of specific performance. 47. Further, in the judgment reported in (2011)4 SCC 741 in the case of Pramod Buildings and Developers Private Limited vs. Shanta Chpra, it has been held that the plaintiff has to prove the readiness and willingness to perform her part of contract and as stated supra, in this case, no explanation was given by the plaintiff for not filing the suit for 22 months, after the exchange of notices. Further, even according to PW1, the Panchayat took place prior to Exs.A10 and A13 and therefore, the plaintiff need not have waited for filing a suit and the non-explanation for the delay would dis-entitle the plaintiff to claim the relief of specific performance. 48. Further, even according to PW1, the Panchayat took place prior to Exs.A10 and A13 and therefore, the plaintiff need not have waited for filing a suit and the non-explanation for the delay would dis-entitle the plaintiff to claim the relief of specific performance. 48. The learned counsel appearing for the respondent/plaintiff relied upon the judgment reported in (2007) 9 SCC 660 in the case of M.M.S.Investments, Madurai and others vs. V.Veerappan and others, wherein the Hon'ble Supreme Court held that when the property has been sold by the vendor, he cannot raise a plea that the plaintiff was not ready and willing to perform his part of contract and the court also need not go into the question of readiness and willingness on the part of the plaintiff. Though, an attempt was made by the plaintiff to prove that the appellants executed sale deeds Exs.A29 and A32 in respect of the suit property, those sales deeds were executed in the year 2007 and the suit was filed in the year 2005 and therefore, that judgment cannot be taken advantage of by the plaintiff. 49. Further, having regard to the fact that the plaintiff did not take any steps for nearly 22 months for filing a suit for specific performance and no explanation was given for such a delay, the plaintiff is not entitled to the equitable relief of specific performance. As the other judgments relied upon by the learned counsel appearing for both sides, cannot be applicable to facts of this case, those judgments were not referred in this judgment. 50. Therefore, having regard to the findings given to the points for consideration, the Appeal Suit is partly allowed and the plaintiff is not entitled to the decree for specific performance and the decree of the lower court granting decree of specific performance is set aside and the appellants are directed to pay a sum of Rs.2,00,000/-[Rupees Two lakhs only] with interest to the plaintiff at the rate of 12% per annum from 09.05.2003, which amount represents the loan payable to Sathiya Narayanan(PW6). No costs.