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2014 DIGILAW 1915 (MAD)

R. Karuppusamy v. P. Sivaraj

2014-07-03

P.R.SHIVAKUMAR

body2014
Judgment 1. This appeal has been filed against the decree of the trial court dated 24.09.2008 passed by the learned Additional District and Sessions Judge, Fast Track Court No.I, Coimbatore in O.S.No.53 of 2007. The defendant in the said suit is the appellant herein. The plaintiff/decree holder is the respondent in this appeal. The suit was filed for the relief of specific performance based on an agreement for sale dated 11.06.2006. By the said decree, the learned trial Judge granted the relief of specific performance directing the appellant herein/defendant to execute a sale deed after receiving the balance amount of sale consideration in accordance with the terms of the suit sale agreement. Aggrieved by and challenging the said decree of the trial Court granting the relief of specific performance, the present appeal has been filed on various grounds set out in the memorandum of grounds of appeal. 2. The respondent herein/plaintiff filed the above said suit for the relief of specific performance based on the averments made in the plaint, which are in brief, as follows: i) On 11.06.2006, the appellant herein/defendant entered into an agreement with the respondent herein/plaintiff to sell his property, namely the suit property to the respondent/plaintiff at Rs.62,500/- per cent and received an advance of Rs.50,000/-. The agreement was reduced to writing and the same was signed by the parties on the same day. The property which was agreed to be sold measures an extent of 14 cents and 32 sq.ft and the total consideration comes to Rs.8,79,587/-. As the said land was a vacant land in an unapproved lay out and it was sought to be purchased for his use as a house site, the parties agreed for a condition that the appellant/defendant should put up a shed in the said property at his costs, get the same assessed to house tax and furnish the house tax receipt, so that there would not be any impediment for the registration of the sale deed conveying the suit property as a house site. ii) Though the appellant/defendant had put up a shed in accordance with the agreed terms, he was keeping on informing the respondent/plaintiff that the same was not assessed to tax. ii) Though the appellant/defendant had put up a shed in accordance with the agreed terms, he was keeping on informing the respondent/plaintiff that the same was not assessed to tax. Believing the words of the appellant/defendant, the respondent/plaintiff was waiting for the appellant/defendant to come with those documents and all along the respondent/plaintiff was ready and willing to perform his part of the contract under the suit agreement for sale. However, to the shock and surprise of the respondent/plaintiff, all of a sudden the appellant/defendant issued a notice to the respondent/plaintiff on 22.11.2006 enclosing a cheque for Rs.50,000/-stating that the suit sale agreement was cancelled and he was returning the advance amount received from the respondent/plaintiff. On receipt of the said notice, the respondent/plaintiff issued a reply informing the appellant/defendant that he was always ready and willing to perform his part of the contract and calling upon the appellant/defendant to come and execute the sale deed in accordance with the terms of the agreement. In the reply notice it was further informed that in view of the attempt made by the appellant/plaintiff to wriggle out of the transaction, the respondent/plaintiff would be forced to approach the court for appropriate reliefs. As the appellant/defendant did not come forward to arrange for the execution of the sale deed even thereafter, the respondent/plaintiff was constrained to file the suit for specific performance. 3. Based on the above said pleadings, the respondent/plaintiff had prayed for a decree directing the appellant/defendant to specifically perform his part of the agreement and to do all acts necessary to convey the suit property to the respondent/plaintiff. 4. The suit was resisted by the appellant/defendant based on the averments made in his written statement, which are in brief, as follows: i) The execution of suit sale agreement dated 11.06.2006 agreeing to sell the suit land at the rate of Rs.62,500/- per cent is not denied and it is admitted. It is also true that the appellant/defendant received a sum of Rs.50,000/- as advance. The extent of the property mentioned in the plaint, namely 14 cent and 32 sq.ft, is also correct. However, a false allegation has been made by the respondent/plaintiff as if he has been ready and willing to perform his part of the contract. Besides providing a misleading description of the suit property, the respondent/plaintiff has also suppressed certain material facts. The extent of the property mentioned in the plaint, namely 14 cent and 32 sq.ft, is also correct. However, a false allegation has been made by the respondent/plaintiff as if he has been ready and willing to perform his part of the contract. Besides providing a misleading description of the suit property, the respondent/plaintiff has also suppressed certain material facts. ii) The agreement between the parties would reveal the fact that the property agreed to be sold was only a vacant site of 6130 sq.ft. The respondent/plaintiff himself prepared the sale agreement with the recitals to suit him and also incorporating recitals to the effect that the appellant/defendant should hand over encumbrance certificate for a period of 30 years and also should get the property measured. A further recital was also incorporated to the effect that the appellant/defendant should construct a shed, get the same assessed to tax and produce the tax receipt for the execution of the sale deed in favour of the respondent/plaintiff. The unilateral introduction of the said clause was questioned by the appellant/defendant, for which the respondent/plaintiff replied that since the property in an unapproved vacant site was sought to be sold as house site, unless a building was put and it was assessed to tax, the Registering Authority would refuse to register the document and that only to take care of such a situation, the said clause became necessary. However, the appellant/defendant made it clear that he could not put up a construction spending any amount for the same. When such a revelation was made by the appellant/defendant and his disinclination to accept the said clause, the respondent/plaintiff conceded the same. As the said clause had been introduced by the respondent/plaintiff in order to overcome the formalities of registration of sale deed, the sale agreement itself should be construed as one against the public policy. As the appellant/defendant agreed for selling the suit property as a vacant site, the appellant/defendant has got a right to ignore the said clause in the suit sale agreement. iii) The time for completion of the transaction had been stipulated as four months. As the appellant/defendant agreed for selling the suit property as a vacant site, the appellant/defendant has got a right to ignore the said clause in the suit sale agreement. iii) The time for completion of the transaction had been stipulated as four months. As the respondent/plaintiff did not come forward to complete the transaction within that period of four months, his right under agreement got lapsed on 10.10.2006 pursuant to which, the appellant/defendant sent a legal notice 22.11.2006 informing the respondent/plaintiff that the suit sale agreement had been cancelled and he was returning the advance amount by enclosing a cheque for a sum of Rs.50,000/-. The respondent/plaintiff, who received the said notice, chose to send a reply on 28.11.2006 and return the cheque sent by the appellant/defendant along with his notice dated 22.11.2006. The appellant/defendant did not agree for putting up any construction even though such a clause was incorporated in the agreement and no such superstructure came to be put up by him. On the other hand, the suit has been filed for getting a sale deed in respect of the suit property not only as a vacant site, but also with a shed. Hence the prayer is not sustainable and the suit should be dismissed with costs. 5. Based on the above said averments, the learned trial Judge framed 6 issues, which are as follows: "1) Whether the description of property is correct or not? 2) Whether the plaint sale agreement comes to an end on 10.10.2006? 3) Whether the time is essence of the contract or not? 4) Is it true that there is no cause of action in the suit? 5) Whether the plaintiff is entitled to get relief as prayed for in the plaint? 6) To what other reliefs the plaintiff is entitled to get?" (The exact issues framed by the Court with all its grammatical mistakes have been reproduced above without correcting them) 6. The parties went for trial based on the above said issues and led oral and documentary evidence. Except the party witnesses, who figured as PW1 and DW1 respectively on the side of the plaintiff and defendant, no other witness came to be examined. Four documents were marked on the side of the respondent/plaintiff as Exs.A1 to A4, whereas two documents were marked as Exs.B1 & B2 on the side of the appellant herein/defendant. 7. Except the party witnesses, who figured as PW1 and DW1 respectively on the side of the plaintiff and defendant, no other witness came to be examined. Four documents were marked on the side of the respondent/plaintiff as Exs.A1 to A4, whereas two documents were marked as Exs.B1 & B2 on the side of the appellant herein/defendant. 7. The learned trial Judge, heard the arguments advanced on both sides after completion of the recording of evidence and appraised the evidence, both oral and documentary, adduced on both sides in the light of the points urged by the respective counsel appearing for the parties in their arguments and upon such appreciation of evidence, the learned trial Judge rendered a finding that the plaint averments regarding the terms of the agreement and also readiness and willingness on the part of the respondent/plaintiff stood proved, whereas the defence plea taken by the appellant herein/defendant on factual issues and also on legal issues were bound to be rejected as not proved and untenable. Answering all the issues in favour of the respondent herein/plaintiff, the learned trial Judge held the respondent herein/plaintiff to be entitled to the relief of specific performance. Accordingly, by a judgment and decree dated 24.09.2008, the learned trial Judge granted the relief of specific performance as prayed for. Aggrieved by and challenging the correctness of the said decree and judgment, the defendant has brought forth this appeal on various grounds set out in the Memorandum of Grounds of Appeal Suit. 8. The points that arise for consideration in this appeal are as follows: "1. Whether the suit for specific performance is not maintainable without a prayer for declaration that in unilateral cancellation by the defendant is invalid? 2. Whether the suit agreement for sale is opposed to public policy so as to disentitle the respondent/plaintiff to seek the relief of specific performance?" 3. Whether the respondent/plaintiff has proved his readiness and willingness to perform his part of the obligations under the suit agreement for sale? 4. Whether the description of the property found in the plaint schedule is incorrect? 5. Whether the respondent/plaintiff is entitled to the relief of specific performance?" 9. The arguments advanced by Mr. L. Mouli, learned counsel for the appellant and by Mr. M. Prabhakar, learned counsel for the respondent were heard. The materials available on record were also perused. 10. 4. Whether the description of the property found in the plaint schedule is incorrect? 5. Whether the respondent/plaintiff is entitled to the relief of specific performance?" 9. The arguments advanced by Mr. L. Mouli, learned counsel for the appellant and by Mr. M. Prabhakar, learned counsel for the respondent were heard. The materials available on record were also perused. 10. The suit was filed by the respondent herein/plaintiff for the relief of Specific Performance based on the suit agreement for sale dated 11.06.2006, which was produced by the respondent/plaintiff before the trial court and marked as Ex.A1. There is no dispute regarding the execution of Ex.A1-Agreement for sale, by which the appellant/defendant agreed to sell the suit property and the respondent/plaintiff agreed to purchase the same at the rate of Rs.50,000/-per cent; that a sum of Rs.50,000/- was paid by the respondent/plaintiff to the appellant/defendant at the time of execution of the agreement itself as advance and that the agreed time for completion of the transaction was four months. It is the contention of the respondent/plaintiff that he was always ready and willing to complete the transaction, whereas the appellant/defendant alone failed to perform his part of the obligations under the agreement for sale by not fulfilling the conditions precedent prescribed in the agreement and on the other hand, issued a lawyer's notice at the end of the four months' period unilaterally terminating the agreement for sale. It is the further contention of the respondent/plaintiff that the breach committed by the appellant/defendant was not accepted by the respondent/plaintiff as a termination of the contract for sale and it gave him the cause of action for approaching the court with a prayer for specific performance of the suit agreement for sale. 11. On the other hand, it is the contention of the appellant/defendant that the time prescribed in the agreement was mutually agreed to be an essential condition of the contract for sale and that since the respondent/plaintiff failed to fulfill his obligations towards the completion of the sale transaction within the time stipulated in the agreement, the appellant/defendant rightly issued a notice informing the respondent/plaintiff that the agreement for sale stood cancelled. The learned counsel for the appellant/defendant has also pointed out the fact that besides issuing a notice informing the respondent/plaintiff that the suit agreement for sale stood cancelled because of the default committed by the respondent/plaintiff in completing the sale transaction within the stipulated time, the appellant/defendant, in all fairness, sent a cheque for Rs.50,000/- along with the lawyer's notice towards the repayment of advance amount. The learned counsel for the appellant/defendant has contended further that since the agreement itself was cancelled by issuance of the notice dated 22.11.2006, the respondent/plaintiff, could not maintain a suit for specific performance, without seeking a declaration in respect of the termination of the agreement for sale as bad in law and that the trial court, without properly considering the said aspect, chose to grant the relief of specific performance erroneously in favour of the respondent/plaintiff. 12. On the other hand, the learned counsel for the respondent/plaintiff has contended that though a period of four months was stipulated in the agreement as the time for completion of the transaction, the appellant/defendant had not proved the time stipulated in the agreement to be the essence of the contract and that in the absence of specific proof regarding the time being the essence of the contract, the general principle that in respect of agreements for sale of immovable properties, time shall not be construed to be the essence of the contract unless and otherwise a different intention appears from the terms of the contract shall be attracted. It is the further contention of the learned counsel for the respondent/plaintiff that even assuming that the condition regarding time for completion of the transaction incorporated in the agreement is the essence of the contract, since the respondent/plaintiff had not committed any default and on the other hand, the appellant/defendant failed to perform his part of the obligations, which should precede the performance of the obligation on the part of the respondent/plaintiff, the appellant/defendant being the defaulter, could not be allowed to take advantage of his own fault and contend that the agreement has become unenforceable due to lapse of time. Point No.1 13. Point No.1 13. Out of the above said contentions, the contention of the appellant/defendant regarding the maintainability of the suit for specific performance without seeking a declaratory relief to have the cancellation of the agreement for sale made by the appellant/defendant by issuing a notice declared ineffective and bad in law, can be taken up for consideration before the other contentions are taken up for discussion. The contention raised on behalf of the appellant/defendant is that, since the agreement for sale was cancelled by the appellant/ defendant by issuing a notice citing the failure on the part of the respondent/plaintiff to pay the balance amount of sale consideration and get the sale transaction completed within the time stipulated in the agreement for sale, there was no agreement in force to be specifically enforced as on the date of filing of the suit and that hence the suit without seeking a declaration that the cancellation of the agreement was invalid and bad in law could not be maintained, cannot be accepted to reflect the correct principle of law in this regard. In case the said contention of the learned counsel for the appellant/defendant is accepted, it shall amount to recognising the right of a party to a contract to unilaterally repudiate the contract and still claim that a suit for specific performance by the other party, who is entitled to reject the repudiation and treat it as a breach of contract, from filing a suit for specific performance without seeking a declaration that the repudiation of the contract is illegal and bad in law. The same will go against the spirit of the law relating to specific enforcement of the contracts. 14. A party aggrieved by the failure on the part of the other party to the agreement to perform his part of the agreement, shall have two kinds of remedies: 1) by accepting the breach as termination of the contract and seeking re-payment of the benefit derived by the party who committed the breach and also reasonable damages for such breach of obligation under the agreement; and 2) not to recognise the breach as a termination of the contract and insist upon performance of the obligations, as per the terms of the contract and in case of refusal, to approach the court for the necessary relief of specific performance and or damages. In neither case, he shall be required to seek a declaration that the cancellation of the agreement would amount to breach of the contract giving rise to the above said remedies. Seeking a prayer for declaration that a particular act on the part of a party to the contract is not against law shall not be a condition precedent for seeking the remedy based on such breach, namely refund of the advance amount and payment of damages or specific enforcement of the contract and damages. 15. In fact Section 34 of the Specific Relief Act, 1963 does not make it obligatory on the court to grant a declaration of status or right in all cases, wherein such declaration may be sought for. It confers a discretion on the court to grant such declaration. The proviso to the said section mandates the court to decline the prayer of declaration where the plaintiff seeks a mere declaration alone and omits to seek further relief, when he is able to seek such further reliefs than a mere declaration. Similarly, the jurisdiction of the court to grant decree of specific performance is also made discretionary under Section 20 of the Specific Relief Act, 1963. It says, "the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so, but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal". Section 14 of the Specific Relief Act, 1963 enumerates the contracts which are not specifically enforceable. In the said section, a contract, which is unilaterally cancelled by one of the parties to the contract, has not been included in the list of contracts, which cannot be specifically enforced by the authorities not on breach. Section 14 also does not say that in case of refusal on the part of one of the parties to the contract to perform his/her part of the obligation under the contract, which would amount to breach of contract, such contract cannot be specifically enforced by the other party, who is not at fault, without seeking a declaration that the breach committed by unilateral cancellation of the agreement was illegal and bad in law. Section 10 of the Specific Relief Act says that the specific performance of any contract may, in the discretion of the court, be enforced when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done or when the act agreed to be done is such that compensation in money for its non-performance could not afford adequate relief. It also provides, unless and until the contrary is proved, the court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money. There is nothing in section 10 of the Specific Relief Act 1963 to suggest that when a breach is committed by a party to the agreement by unilaterally cancelling the agreement, the contract cannot be specifically enforced without seeking a declaration that the cancellation is bad. Similarly, no provision in the Indian Contract Act says that the remedy of specific enforcement of a contract cannot be sought for without seeking a declaration that the act of non-performance or cancellation on the part of the other party to the agreement is a bad in law and illegal. 16. We can take for example the case of a tort. When damages are claimed for the tortuous act of the other person (defendant), it is not necessary for the plaintiff (claimant) to seek a declaration that the act of the defendant is tortuous and he was liable to pay compensation. The very prayer for damages for the tortuous act committed by the defendant incorporates a plea that the defendant is the tort-feasor and is liable to compensate the plaintiff. Similarly, when property dispute arises, a plaintiff seeking relief of partition or injunction or recovery of possession, need not seek a declaration of his title and he can simply seek relief of partition, recovery of possession, damages or injunction. When a plaintiff files a suit for damages on the ground of defamation or malicious prosecution, it shall not be necessary for the plaintiff to seek a declaration that the defendant has committed the act of causing defamation or the wrong of malicious prosecution. Such acts complained of by the plaintiff shall constitute only the cause of action for the suit for the concerned relief. Such acts complained of by the plaintiff shall constitute only the cause of action for the suit for the concerned relief. To say that a person seeking specific performance an agreement for sale cannot maintain a suit without seeking a declaration that the unilateral cancellation of the agreement by the defendant will not be maintainable, will tantamount to contending that for maintaining a suit for any relief, it is a condition precedent that there should also be a prayer for a declaration as to the cause of action. 17. In this regard, it shall be of a great help to refer to the judgment of the Hon’ble Supreme Court in Anathula Sudhakar vs. P.Buchi Reddy (Dead) by LRs & Ors. reported in (2008) 4 SCC 594 dealing with a question of maintainability of the suit for maintaining injunction based on title without seeking a declaration of title, when there is a dispute regarding the title of the plaintiff by the defendant. It was held therein, in clear terms, that a suit for bare injunction based on title as such cannot be thrown away as not maintainable simply because no prayer for declaration was sought for. The Supreme Court classified the cases into two categories, the first one being one in which the question of title being not so complicated, where the court dealing with the suit for injunction would conveniently decide the said question also for arriving at a conclusion whether the plaintiff was entitled to the relief of injunction sought for by the appellant/plaintiff and the second one being cases in which complicated questions regarding title would have arisen, which would not be conveniently decided in a suit of summary nature. Only in the latter type of cases it was recommended that the parties should be relegated to the more cumbersome procedure of seeking declaration of title and the consequential reliefs. Even then, it was not held therein that the suit for recovery of possession based on title or injunction based on title without a prayer for declaration of title is not maintainable and such suits without a prayer for declaration should be dismissed was not maintainable. On the other hand, it was made clear that only by a rule of convenience of the court, the parties in such cases would be relegated to the more cumbersome procedure of seeking declaration and consequential reliefs. On the other hand, it was made clear that only by a rule of convenience of the court, the parties in such cases would be relegated to the more cumbersome procedure of seeking declaration and consequential reliefs. Even in the said case, Hon’ble Supreme court, held that the question of title was complicated unsuitable for decision in the suit for injunction in which the question of title should be tried summarily. The Hon’ble Supreme Court, while holding that the plaintiff could not be granted the relief of injunction as the suit involved a complicated question of title which was in dispute, did not simply dismiss the suit. On the other hand, Hon'ble Supreme Court permitted the plaintiff therein to file a suit for comprehensive reliefs of declaration and injunction. A consideration of the same will make it clear that the contention of the appellant/defendant that a suit for specific performance without seeking a declaration that the cancellation of the agreement was bad in law is not maintainable, cannot be countenanced. For all the reasons stated above, this court comes to the conclusion that the contention of the appellant/defendant that the suit is not maintainable for want of prayer seeking a declaration that the cancellation of the agreement by the appellant/defendant is bad in law is liable to be discountenanced and the same deserves to be rejected as unsustainable. Point No.2 18. It is the further contention of the appellant/defendant that since a clause has been included in the suit agreement to the effect that the vendor under the agreement for sale should put up a shed at his cost and get the same assessed to house tax would make the contract itself opposed to public policy and hence the suit sale agreement is not capable of being specifically enforced. The above said contention came to be made on the premise that the said clause was incorporated in the agreement at the insistence of the respondent/plaintiff to enable the registration of the sale deed, since otherwise registration of the sale deed would have been rejected by the registering authority as per G.O.Ms.No.150 Commercial Taxes Department dated 22.09.2000. A copy of the said Government Order was produced before the trial court and marked as Ex.B1. A copy of the said Government Order was produced before the trial court and marked as Ex.B1. The said Government Order came to be issued to the effect that any instrument relating to the conveyance of the properties belonging to the Government or Local Body and instruments of conveyance of properties belonging to any religious institutions including temples, mutts, Tamil Nadu Bhoodan Yagna Board or Tamil Nadu Wakf Board, shall be a document opposed to public policy unless a sealed "No Objection Certificate" is obtained from the authority of the concerned local body, namely Corporation, Municipality, Town Panchayat, Panchayat Union or Village Panchayat or Chennai Metropolitan Development Authority was produced before the Registering Authority. The contents of the Government Order are reproduced hereunder: COMMERCIAL TAXES(J2) DEPARTMENT G.O.(Ms) No. 150 Date:22.9.2000 Read: “In exercise of the powers conferred by sub-section (1) of section 22-A of the Registration Act,1908 (Central Act XVI of 1908), the Governor of Tamil Nadu hereby declares the following documents as opposed to public policy, namely:- 1. (1) Any instrument relating to,- 2. (i) conveyance of properties belonging to the Government or the local bodies such as the Chennai Metropolitan Development Authority, or Corporations, or Municipalities, or Town Panchayats, or Panchayat Unions, or Village Panchayats ; or 3. (ii) conveyance of properties belonging to any religious institutions including temples, mutts, or specific endowments managed by the Hereditary Trustees/Non-hereditary Trustees appointed to any religious institution under a Scheme settled or deemed to have been settled under the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959) and mutts and temples including specific endowments attached to such of those temples managed by mutts; or 4. (iii) conveyance of properties assigned to, or held by 5. (a) the Tamil Nadu State Bhoodan Yagna Board established under section 3 of the Tamil Nadu Bhoodan Yagna Act, 1958 (Tamil Nadu Act XV of 1958) ; or 6. (iii) conveyance of properties assigned to, or held by 5. (a) the Tamil Nadu State Bhoodan Yagna Board established under section 3 of the Tamil Nadu Bhoodan Yagna Act, 1958 (Tamil Nadu Act XV of 1958) ; or 6. (b) the Tamil Nadu Wakf Board, unless a sealed No Objection Certificate issued by the competent authority as provided under the relevant Act or the rules framed thereunder for this purpose and in the absence of any such provision in any relevant Act or in the rules framed thereunder, authority so authorised by the Government, to the effect that such registration is not in contravention of the provisions of the respective Act, is produced before the registering officer ; (2) conveyance of lands, converted as house sites without the approved layouts unless a No Objection Certificate issued by the authority concerned of such local bodies, namely, Corporations, or Municipalities, or Town Panchayats, Panchayat Unions, or Village Panchayats or Chennai Metropolitan Development Authority is produced before the registering officer ; (3) cancellation of sale deeds without the express consent of the parties to the documents.” By the said Government Order, the State Government had issued instructions to the Registering Authorities to refuse registration of documents of conveyance relating to properties belonging to the Government, local bodies, religious institutions, Bhoodan Board or Wakf Board unless a "No Objection Certificate" was obtained from the Competent Authority and produced before the Registration Authority. Similarly, in order to prevent registration of the sale deeds in unapproved house sites, it was provided in paragraph 2 of the Government Order that deeds of conveyance of lands converted as house sites without approved lay outs could not be registered, as it was opposed to public policy unless a "No Objection Certificate" issued by the concerned authority of the local body was obtained and produced before the registering authority. 19. A reading of the said Government Order will make it clear that a document conveying a land converted as house sites without the approved lay outs would be a document opposed to public policy and that hence such documents could not be registered. 19. A reading of the said Government Order will make it clear that a document conveying a land converted as house sites without the approved lay outs would be a document opposed to public policy and that hence such documents could not be registered. However, the Government Order in G.O.(Ms) No. 150 Commercial Taxes (J2) Department dated 22.9.2000 itself provided that such a document would not be opposed to public policy, provided a "No Objection Certificate" issued by the concerned authority of the local body was obtained and produced before the Registering Authority. The Government Order did not provide a total ban on sale of lands converted as house sites without the approved lay outs. It prescribed a qualification that sale of such lands could be registered only on production of a "No Objection Certificate" obtained from the concerned authority of the local body. 20. Admittedly, the suit property was sought to be purchased by the respondent/plaintiff and it was agreed to be sold by the appellant/defendant for the purpose of his use as house site. Therefore, in the light of the above said Government Order in G.O.(Ms) No. 150 Commercial Taxes (J2) Department dated 22.9.2000, if a document of conveyance was prepared and produced for registration without obtaining a 'No Objection Certificate' from the concerned local body, in this case, the Corporation of Coimbatore, the registration of the document would have been refused on the ground of its being opposed to public policy in the light of the second paragraph of the said Government Order. It does not make an agreement for conveyance or the deed of conveyance per se opposed to public policy. If the requirement of obtaining a 'No Objection Certificate' is fulfilled, then the registration of the same would not be refused, as it would fall out of the purview of the documents declared to be opposed to public policy as per the above said government order. Suppose the suit agreement for sale did not contain any stipulation for construction of a superstructure (shed) to enable the party to get the same assessed to house tax before the execution of the Deed of Conveyance, then the same would have fallen within the mischief of the said government order as declaring such documents to be opposed to public policy. But the said government Order itself provided an escape route by obtaining a No Objection Certificate from the authority concerned of the local body. Putting up a construction (a shed) and getting it assessed to house tax would have enabled the land owner to get a No Objection Certificate from the authority concerned. 21. Furthermore, the learned counsel for the appellant/defendant, during his arguments, admitted that said Government Order was applicable only in case of sale of vacant site and that in case the land was sought to be sold along with a superstructure, which was assessed to house tax by the local body, then the Government Order G.O.(Ms) No. 150 Commercial Taxes (J2) Department dated 22.9.2000 was held to be inapplicable to such document. Learned counsel for the appellant/defendant submitted that only in order to take the proposal sale out of the mischief of the said Government Order, the said clause in the agreement that the appellant/defendant should put up a shed at his cost and get it assessed to house tax came to be incorporated at the instance of the respondent/plaintiff. Based on the said submission alone, the learned counsel for the appellant/defendant contended that it was a device to take the sale out of the purview of the Government Order and hence it should be construed to be opposed to public policy. This court is not in a position to accord approval to the above said contention of the learned counsel for the appellant/defendant. As pointed out supra, there was no total prohibition of conveyance of the properties converted as house sites without the approved lay outs. Only when a property converted as house sites without the approved lay out was sought to be sold without obtaining a "No Objection Certificate" from the local body, the document was to be construed as one opposed to public policy. 22. Admittedly the suit property was a vacant site in an unapproved lay out and it was sought to be sold as a vacant site for the purpose of purchaser's use as a house site. Hence a "No Objection Certificate" would have been necessary for getting the sale deed registered. 22. Admittedly the suit property was a vacant site in an unapproved lay out and it was sought to be sold as a vacant site for the purpose of purchaser's use as a house site. Hence a "No Objection Certificate" would have been necessary for getting the sale deed registered. Suppose the agreement contained a clause that the vendor should obtain a "No Objection Certificate" from the concerned authority of the local body, the agreement cannot be construed to be one coming within the mischief of the Government Order declaring certain documents as opposed to public policy. In case a superstructure is put up and the same was assessed to house tax by the local body then the said superstructure and the land over which the superstructure was put up and the surrounding land could be sold as a land with building. In such an event, the applicability of the said Government Order would stand excluded. Even otherwise the assessment of tax for the building would amount to approval of the local body recognising such a land to be building and appurtenant land. As the said Government Order was interpreted in such a way that only when a site in an unapproved lay out was sought to be sold as a vacant site, the Government Order stood attracted and on the other hand, when a building was put up and it was sought to be sold as a building and appurtenant land, the Government Order did not get attracted and the very purpose of the Government Order was achieved in evasion than compliance by adopting such a method, the Government itself thought it fit to revoke the said Government Order by issuing a Notification in G.O.Ms.No.139 Commercial Taxes and Registration (1) Department dated 25.07.2007. As the said Government order was revoked, the appellant/defendant cannot contend that the suit sale agreement was opposed to public policy and the suit for specific performance of the suit sale agreement would not be maintainable. Point No. 3 23. The learned counsel for the appellant/defendant advanced an argument that the parties agreed to treat the time for completion of the transaction as an essential condition of the contract and that the respondent/plaintiff failed to take any steps to complete the transaction within the stipulated period and that hence the contract for sale could not be specifically enforced at the instance of the respondent/plaintiff. Learned counsel for the appellant/defendant also contended that even if it could be assumed that the time stipulated in the agreement for sale was not intended to be an essential condition for contract for sale, unless the respondent/plaintiff pleaded and proved that he had either performed or he was ready and willing to perform his part of the obligations under the agreement and satisfied the requirement of Section 16(c) of the Specific Relief Act, 1963, he could not be granted the relief of specific performance. In support of his contention, the learned counsel for the appellant/defendant drew the attention of the court to the fact that the agreement contains a stipulation that the transaction should be completed within four months and that in the event of failure to make payment of the balance sale consideration and get the sale deed executed, the respondent/plaintiff should lose the advance paid to the appellant/defendant besides the agreement itself become liable to be cancelled. 24. As an answer to the above said contention of the learned counsel for the appellant/defendant, learned counsel for the respondent/plaintiff argued that the obligations of the parties were arranged in Ex.A1-Agreement in such a way that measuring of the property and putting up a shed at the cost of the appellant/defendant and getting it assessed to tax were the obligations cast on the appellant/defendant and they were to be performed first and obligations cast on the respondent/plaintiff was dependent upon the performance of the above said obligations of the appellant/defendant. However, the learned counsel for the appellant/defendant contended that such clauses have been incorporated in the agreement by the respondent/plaintiff himself without even discussing with the appellant/defendant and arriving at a consensus. It is the further contention of the learned counsel for the appellant/defendant that though a stipulation has been made in the agreement that the appellant/defendant should put up a shed and get it assessed under house tax, the agreement did not specify the minimum plinth area and carpet area with which the shed should be put up and that such an ambiguous clause could not be enforced and given effect to. 25. It is true that Ex.A1-Agreement for sale contains a recital that the vendor should get the land measured and work out sale consideration at the rate of Rs.62,500/- per cent. It also contains a stipulation that the appellant/defendant (vendor) should put up a shed etc. 25. It is true that Ex.A1-Agreement for sale contains a recital that the vendor should get the land measured and work out sale consideration at the rate of Rs.62,500/- per cent. It also contains a stipulation that the appellant/defendant (vendor) should put up a shed etc. (shed tifawh) and get the property assessed to house tax and vacant site tax and then execute the sale deed. The relevant portion in the agreement in vernacular is reproduced here under: “LANGUAGE” The above said stipulation is capable of creating an impression that there was no consensus regarding the extent of the property and the extent stipulated therein was only approximate and that the actual sale consideration was to be worked out after getting the land measured. It is an admitted case of both the parties that the price was fixed at the rate of Rs.62,500/- per cent. Though such a clause for measurement and calculation of the sale price is found in the said agreement, in the description of the property, the extent has not been stated to be approximate and on the other hand, exact extent has been noted as 6130 sq.ft. or 14 cents 32'. Suppose the extent alone has been provided without measurements, there is possibility of contending that the extent mentioned therein was only approximate and the parties have agreed to measure the land and fix the total extent for calculation of the total sale consideration. But such possibility has to be ruled out, since the description of property found in Ex.A1 not only states the extent, but also contains the lineal measurement on all four sides with boundaries. In the description of property found in Ex.A1, measurements of the suit property on all four sides have been provided as follows: East-West measurement on the north : 47' East-West measurement on the south : 60-1/2' North-South measurement on the east : 130' and North-South measurement on the west : 121-1/2' 26. The respondent/plaintiff, who figured as the sole witness as PW1 on his side, has admitted in categorical terms that the property was allotted to the appellant/defendant in a partition decree; that the extent was 14 cents and 32' and that he himself perused the decree and other documents regarding the title and entitlement of the appellant/defendant. The respondent/plaintiff, who figured as the sole witness as PW1 on his side, has admitted in categorical terms that the property was allotted to the appellant/defendant in a partition decree; that the extent was 14 cents and 32' and that he himself perused the decree and other documents regarding the title and entitlement of the appellant/defendant. He has also admitted that the total consideration for the said extent at the rate of Rs.62,500/- per cent should came to Rs.8,79,597/-. The said statement regarding the extent and the total sale consideration came to be made by PW1 in his chief examination in the form of proof affidavit itself. From the said statement of PW1 and his evidence and from the fact that not only the extent of the property, but also the lineal measurements of the suit property on all four sides have been provided in the suit sale agreement itself, it will be obvious that there was no dispute regarding the extent of the property and regarding the title and amount agreed to be paid as sale consideration. In view of the same, the stipulation in the agreement for measuring the property would have been made, for the purpose of correctly fixing the boundaries on ground in accordance with the measurements found in the description of the property in the documents. Since the extent of property and the total sale consideration are admitted, the said stipulation for measuring the land before completion of the sale transaction has got to be ignored as superfluous. 27. The other stipulation that the vendor under the agreement for sale (appellant/defendant) should put up a shed etc and get the land and the shed assessed to vacant land tax and house tax before the execution of the sale deed seems to have been incorporated only for the purpose of getting over the difficulty of registering the sale deed in the light of the erstwhile G.O.Ms.No.150 Commercial Taxes Department dated 22.09.2000, which came to be subsequently revoked. PW1 himself admitted that the said condition was included to enable the parties to get the sale deed in respect of the unapproved site registered. PW1 himself admitted that the said condition was included to enable the parties to get the sale deed in respect of the unapproved site registered. The relevant portion of his deposition reads as follows: “LANGUAGE” In this regard, it is the testimony of DW1 that the respondent/plaintiff himself prepared the agreement to suit his convenience and brought it to him for getting his signature and that when he questioned about the introduction of such a clause, the respondent/plaintiff informed that the said clause was incorporated since the law prevented registration of sale deeds in respect of unapproved house site and he himself would make arrangement for doing necessary things to make the sale deed acceptable by the registering authorities. The relevant portion in the deposition of DW1 reads as follows: “LANGUAGE” 28. The notice dated 22.11.2006 sent by the appellant/defendant terminating the agreement and enclosing a cheque for Rs.50,000/- in an attempt to refund the advance amount has been marked as Ex.A2. On receipt of the said notice, refuting the contents therein, the respondent/plaintiff issued a reply notice dated 28.11.2006 and the same was received on 29.11.2006. Office copy of the reply notice and the acknowledgment card evidencing service of the same have been marked as Exs.A3 and A4 respectively. In Ex.A2 - Notice, the appellant/defendant made an averment that he did not agree for constructing a shed at his cost and get it assessed to house tax as one of the conditions of the agreement and that the said clause found in the agreement was introduced by the respondent/plaintiff without the knowledge and consent of the appellant/defendant with the help of a document writer, since the respondent/plaintiff himself got the document prepared and typed. The appellant/defendant had alleged further in Ex.A2-Notice that when the document was brought to him for signature, he questioned about the unilateral incorporation of the condition requiring the appellant/defendant to put up a shed and get it assessed to tax and that when the appellant/defendant pointed out the incorporation of such a clause, which was not mutually agreed upon, the respondent/plaintiff replied that the said clause was included since the Registering Authority would not register the sale deed in respect of the unapproved house site, if it was sought to be sold as a vacant site; that only in order to overcome the hurdle provided in the law relating to registration such a clause was included. It was also averred in Ex.A2-Notice that since the said clause was incorporated without his consent and since it offended the law relating to registration which was opposed to public policy and hence invalid and that the appellant/defendant was entitled to ignore the said clause in Ex.A1-Agreement for sale. 29. The above said contention raised in Ex.A2-Notice was denied and refuted by the respondent/plaintiff in the reply notice dated 28.11.2006, an office copy of which has been marked as Ex.A3. Paragraph 4 of the reply notice contains the following averment: “4. The subject agreement talks about a shed to be constructed at the cost of your client (vide p.3). To lament that the term was "introduced by our client through his document-writer" is only an after thought at this point of time." In the written statement, an improvement was made over the allegations made in Ex.A2 - Notice by stating that the said clause regarding the construction of a shed and getting it assessed to tax was made without the concurrence of the appellant/defendant; that when the same was questioned, the respondent/plaintiff informed the appellant/defendant that he himself would take care of the same, as the said clause was included, because the Registering Authority would not register the sale deed regarding a vacant site without an approved lay out, unless the same was assessed with building tax and that still the appellant/defendant made it clear that there was no question of adding further investment by constructing a shed, when the sale consideration had been fixed taking one cent to be the unit by fixing a particular amount per cent on the basis that the property sought to be conveyed was a vacant site. 30. 30. In this regard, the respondent/plaintiff while deposing as PW1, made it clear that the requirement of putting up a shed and getting it assessed to the house tax was one of the conditions of the agreement and that though the appellant/defendant chose to put up a shed within two months from the date of execution of the agreement, he was keeping on informing the respondent/plaintiff that he was yet to get the same assessed to tax. When a suggestion was put to him to the effect that the said clause was included without the concurrence of the appellant/defendant, PW1 denied the suggestion and asserted that it was so agreed between them. The appellant/defendant, while deposing as DW1, admitted that he signed the agreement after knowing that such a condition had been stipulated in the agreement; that he did not insist upon removal of the said clause and that he did not refuse to sign the agreement without the said clause being removed. He has also admitted that he put up a shed in the suit property with hollow block walls and tin sheet roof. DW1 has not stated when the shed was put up. The testimony of PW1 that the shed was put up by the appellant/defendant in two months from the date of Ex.A1-Agreement for sale, remains unchallenged. If at all the appellant/defendant was not agreeable for including such a condition in the agreement, he would not have put up a shed in the property agreed to be sold during the subsistence of Ex.A1-agreement for sale. Had the appellant/defendant made it clear at the time of signing the agreement that he was not prepared to put up the shed as contemplated in the agreement, he would not have chosen to put up a shed within two months from the date of Ex.A1-agreement. The very fact that he put up such a shed with hollow block walls and tin sheet roof will make the case of the respondent/plaintiff probable that the said clause was included after it was mutually agreed upon in order to overcome the procedural hurdle in getting the sale deed registered in respect of an unapproved house site. 31. The very fact that he put up such a shed with hollow block walls and tin sheet roof will make the case of the respondent/plaintiff probable that the said clause was included after it was mutually agreed upon in order to overcome the procedural hurdle in getting the sale deed registered in respect of an unapproved house site. 31. In the discussions regarding the issue as to whether the agreement was unenforceable as one opposed to public policy, this court has assigned reasons for coming to the conclusion that Ex.A1-Agreement could not be termed an agreement opposed to public policy and that the introduction of a condition in the agreement to make the sale fall outside the purview of the Government Order could not be construed to be a contract opposed to public policy. Suppose the agreement simply contains a clause that the parties agree for execution of a sale deed showing a non-existent shed in order to overcome the difficulty, the same can be viewed as one opposed to public policy as the same aims at making a misrepresentation for registration of the document and committing a fraud on the Registering Authority. If such a clause is incorporated in the agreement, it can be termed as one against public policy. On the other hand, when something is agreed to be done in the suit property to convert it into a land with building from a mere vacant site and thereby making the Government Order inapplicable to the transaction, by no stretch of imagination the same can be construed to be an attempt to defraud the Registering Authority making the document in question to be one opposed to public policy. In this regard, DW1 himself does not dispute the fact that at the time of entering into the agreement, the suit property remained only a vacant site and it was sought to be purchased by the respondent/plaintiff for building purpose. It was also admitted by him that unapproved vacant house sites without a building and without a tax receipt would not be registered (sale deed being upapproved), since there was a Government Order in force against the registration of such documents. The appellant/defendant has referred to G.O.Ms.No.150 Commercial Taxes and Registration (J2) Department dated 22.09.2000 in support of his contention that the agreement for sale was opposed to public policy. The appellant/defendant has referred to G.O.Ms.No.150 Commercial Taxes and Registration (J2) Department dated 22.09.2000 in support of his contention that the agreement for sale was opposed to public policy. A copy of the Government Order has been marked as Ex.B1 and the contents of the same have been extracted in the earlier part of this judgment. 32. The instruments conveying properties belonging to the Government or local bodies, instruments conveying properties belonging to Religious institutions and charitable endowments and conveyance of properties assigned to or held by State Bhoodhan Yagna Board or State Wakf Board were declared to be documents opposed to public policy not in absolute terms, but subject to a condition that a "No Objection Certificate" was not obtained from the competent authority and produced before the Registering Authority. Similarly, instruments conveying lands converted as house sites without approved lay outs were also declared to be documents opposed to public policy, provided a "No Objection Certificate" was not obtained from the authority of the concerned local body and produced before the Registering Officer. The Government Notification did not make such documents per se opposed to public policy. On the other hand, they were to be taken as documents opposed to public policy only in the absence of a production of a "No Objection Certificate" from the concerned authority. Hence an agreement for the sale of a land converted as house site without approved lay out per se could not be termed one opposed to public policy. It would be construed to be opposed to public policy when a "No Objection Certificate" from the authority of the concerned local body was not produced before the Registering Officer. When the agreement contains a clause contemplating an act to be done by a party to the agreement so as to make the performance of the same fall outside the purview of the said Government Notification could not be termed as one opposed to public policy. Knowing fully well the implications of the incorporation of such a clause, the appellant/defendant seems to have executed Ex.A1-Agreeement. The same was the reason why he chose to put up a shed with hollow block walls and tin sheet roof incurring some expenditure after the execution of the suit sale agreement and during the currency of the suit sale agreement. Knowing fully well the implications of the incorporation of such a clause, the appellant/defendant seems to have executed Ex.A1-Agreeement. The same was the reason why he chose to put up a shed with hollow block walls and tin sheet roof incurring some expenditure after the execution of the suit sale agreement and during the currency of the suit sale agreement. If at all the appellant/defendant was not agreeable for such a condition requiring him to put up a shed and get it assessed to tax to make the property transferable, he need not have waited till the expiry of four months stipulated in Ex.A1-Agreement for sale. 33. The very fact that he waited till the expiry of four months period stipulated in the agreement for completion of the transaction and thereafter came forward with Ex.A2-Notice contending that the agreement containing such a clause was opposed to public policy and that he was inclined to terminate the agreement on the premise that the time stipulated in the agreement expired, will make probable the case of the respondent/plaintiff that the said condition was incorporated only after the parties mutually agreed upon and that the appellant/defendant tried to wriggle out of the commitment by contending that such a condition was incorporated without his consent as a result of an afterthought. When obligations are arranged in such a way that one of the parties to the agreement should do certain acts before he could call upon the other party to perform his part of the agreement, then the party who has not committed the act which was expected to be done at the first instance, cannot cause the blame on the other party that the other party was not ready to perform his part of the obligations under the agreement. 34. In this case, admittedly G.O.Ms.No.150 Commercial Taxes and Registration (J2) Department dated 22.09.2000 was in force at the time of execution of Ex.A1-Agreement for sale. In order to enable proper conveyance of the property, a condition was incorporated in the agreement that a shed to be put up by the appellant/defendant at his own cost and get it assessed to tax. On the date of issuance of Ex.A2-Notice also the said Government Order was in force. In order to enable proper conveyance of the property, a condition was incorporated in the agreement that a shed to be put up by the appellant/defendant at his own cost and get it assessed to tax. On the date of issuance of Ex.A2-Notice also the said Government Order was in force. It is not the case of the appellant/defendant that he had complied with the condition fully and still the respondent/plaintiff was not prepared to proceed towards the completion of the transaction. On the other hand, without fulfilling the obligation cast on him in the agreement, he had chosen to issue Ex.A2-Notice terminating the agreement casting the blame on the respondent/plaintiff for the non-completion of the transaction within the time stipulated in the agreement. Within a few days after receipt of Ex.A2-Notice, the respondent/plaintiff chose to issue a reply under Ex.A3 refuting the contentions of the appellant/defendant made in the Notice (Ex.A2) and calling upon him to come forward to complete the transaction expressing his readiness and willingness to do his part of the obligations under Ex.A1-Agreement. Ex.A1 contains a recital that in case of default on the part of the respondent/plaintiff (purchaser) in making the payment of the balance amount of sale consideration and getting the sale deed executed within the time stipulated in the agreement, he should forego the advance amount, besides the agreement becoming liable to be terminated. Despite presence of such a clause, the appellant/defendant chose to return the entire amount of Rs.50,000/- received by him as advance under Ex.A1-Agreement by drawing a cheque in favour of the respondent/plaintiff and enclosing it along with Ex.A2-Notice. Not even a part of the advance amount was sought to be retained by him towards penalty or damages. 35. A conjoint reading of the terms of the agreement (Ex.A1), notice (Ex.A2) and reply notice (Ex.A3) and also the testimonies of PW1 and DW1 will make it clear that the appellant/defendant simply dragged on till the expiry of time stipulated in the agreement and immediately thereafter chose to issue the said Notice terminating the agreement. The agreement is dated 11.06.2006. The time stipulated in the agreement is four months. Four months time came to an end by 10.10.2006. The appellant/defendant chose to issue Ex.A2-Notice on 22.11.2006. The agreement is dated 11.06.2006. The time stipulated in the agreement is four months. Four months time came to an end by 10.10.2006. The appellant/defendant chose to issue Ex.A2-Notice on 22.11.2006. Either before the expiry of four months period stipulated in the agreement or at least till he chose to issue the notice terminating the agreement, the appellant/defendant did not issue any notice informing the respondent/plaintiff that he had done all necessary acts for removing the hurdle for registration of the documents by complying with the conditions stipulated in the agreement and calling upon the respondent/plaintiff to pay the balance amount of sale consideration and get the sale deed registered. He has not even chosen to issue a notice calling upon the respondent/plaintiff to do the needful to get the sale deed executed and registered and informing the respondent/plaintiff that he was not obliged to put up a shed and get it assessed to tax and that the respondent/plaintiff alone took the responsibility of putting up a shed and get it assessed to tax so as to remove the hurdle for the registration of the sale deed. Without doing any such sort of acts and simply availing time for getting the shed put up by him assessed to tax, the appellant/defendant allowed the time stipulated in the agreement to lapse and then chose to issue Ex.A2-Notice terminating the agreement. It will be obvious from the said facts that the appellant/defendant, with a calculated effort, kept quiet till the expiry of the time stipulated in the agreement and then issued Ex.A2-Notice purporting to terminate the agreement. The respondent/plaintiff responded properly by issuing a suitable reply under the original of Ex.A3. He also returned the cheque sent along with Ex.A3- reply notice to the appellant/defendant himself informing him that the same should remain with him as advance and that the respondent/plaintiff was always ready and willing to perform and complete the transaction. The reply Notice came to be issued on 28.11.2006. It was received by the appellant’s advocate on 29.11.2006 as evidenced by Ex.A4-postal acknowledgment card. Thereafter, the respondent/plaintiff took the minimum time required for preparation of the plaint and filed the suit on 15.12.2006 itself. Till the date of filing of the suit G.O.Ms.No.150 Commercial Taxes and Registration (J2) Department dated 22.09.2000 was in force. 36. It was received by the appellant’s advocate on 29.11.2006 as evidenced by Ex.A4-postal acknowledgment card. Thereafter, the respondent/plaintiff took the minimum time required for preparation of the plaint and filed the suit on 15.12.2006 itself. Till the date of filing of the suit G.O.Ms.No.150 Commercial Taxes and Registration (J2) Department dated 22.09.2000 was in force. 36. The respondent/plaintiff made clear averments in the plaint regarding his readiness and willingness to complete the transaction. However, the appellant/defendant did not even come forward to agree for the completion of the transaction after the receipt of summons in the suit. On the other hand, he chose to file a written statement pleading that the agreement was unenforceable as opposed to public policy and the respondent/plaintiff was not ready and willing to perform his part of the agreement within the time stipulated in the agreement and that hence he was justified in terminating the agreement. Admittedly, the hurdle provided for the registration of the proposed sale deed came to be removed by the issuance of a subsequent notification of the government in G.O.(Ms) No.139 Commercial Taxes and Registration (1) Department dated 25.07.2007, a copy of which has been marked as Ex.B2. By the said Notification, the earlier notification issued in G.O.Ms.No.150 Commercial Taxes Department dated 22.09.2000 was revoked. Such a Notification revoking the earlier government order came to be issued pursuant to the judgment of the Supreme Court dated 07.09.2005 in C.A.No.7800/2001 and the consequential letter of the Inspector General of Registration dated 31.03.2006. From the same it will be obvious that the embargo in the registration of the sale deed in respect of vacant house sites in unapproved lay out came to be removed only on 25.07.2007 after the filing of the suit. Even after the issuance of the said government order, though the respondent/plaintiff had expressed his readiness and willingness to make payment of the balance amount of consideration and take a sale deed from the appellant/defendant, the appellant/defendant did not come forward to concede the claim of the respondent/plaintiff. Even after the issuance of the said government order, though the respondent/plaintiff had expressed his readiness and willingness to make payment of the balance amount of consideration and take a sale deed from the appellant/defendant, the appellant/defendant did not come forward to concede the claim of the respondent/plaintiff. This court, being the final court of appeal on facts, on a re-appreciation of evidence, concurs with the finding of the trial court that the respondent/plaintiff complied with the conditions found in Section 16(c) of the Specific Relief Act, 1963 by specifically pleading his readiness and willingness and that on the other hand the appellant/defendant, instead of performing his obligations under the agreement, had made an attempt to wriggle out of the commitment by claiming that the agreement was opposed to public policy and issuing a notice unilaterally terminating the agreement. 37. An attempt made by the learned counsel for the appellant/defendant to show that the respondent/plaintiff was not having the necessary funds to make payment of the balance amount of sale consideration to prove his readiness and willingness, which would be seen from the fact that he did not deposit balance sale consideration in the court by producing a lodgement schedule and that he had not produced any document to show that he was having necessary funds to make payment of the balance sale consideration. PW1 gave clear evidence that he was having the necessary funds with him. But the appellant/defendant was not prepared to take it and execute the sale deed. However, it is a fact that the respondent/plaintiff has not produced his bank passbook or other documents to show his capacity to pay the balance amount of sale consideration, the same will not be enough to arrive at a conclusion that the respondent/plaintiff did not have the necessary funds, as the purchaser suing for specific performance, shall not be expected to carry the cash along with him to the court and it shall be enough for him to show his preparedness to make payment of the balance sale consideration as and when called upon to do so. Hence the challenge made to the finding of the trial court that the respondent/plaintiff, besides making necessary plea had proved his readiness and willingness to perform his part of the obligations under the agreement is bound to fail and that the said question has to be answered against the appellant/defendant and in favour of the respondent/plaintiff. Point Nos.4 and 5 38. The agreement contemplates conveyance of the suit property measuring an extent of 14 cents and 32 sq.ft. (equivalent to 6130 sq.ft. within definite boundaries) in S.No.477/3 of Sanganoor village, Coimbatore Taluk, Gandhipuram Registration District, Coimbatore District within the limits of Coimbatore City Municipal Corporation. Though the description of the property found in the agreement does not contain a reference to the superstructure, the recitals found in the agreement make it clear that the parties agreed for the sale of the said land together with a shed capable of being assessed to house tax to be put up by the vendor, namely the appellant/defendant at his cost. Admittedly, after the agreement and presumably in pursuance of the agreement, the appellant/defendant put up a shed with hollow block walls and tin sheet roof. No doubt, no tax receipt was produced and the same was also not assessed to house tax. However since the shed was put up as contemplated in the agreement, the respondent/plaintiff chose to file the suit for specific performance describing the said land extending 6130 sq.ft. equivalent to 14 cents 30 sq.ft. together with the shed thereon as the suit property. The learned trial judge, after giving the finding that the agreement was executed for conveying the property as a vacant site and the condition requiring putting up of a shed was only for the purpose of registration of the document, chose to hold that the respondent/plaintiff was entitled to a decree for specific performance in respect of the suit property as a vacant site without a shed. So far as the finding of the trial court that the respondent/plaintiff is entitled to the relief of specific performance as prayed for based on the suit agreement for sale is concerned, the said finding cannot be termed either defective or erroneous warranting interference by this court. The discretion exercised by the trial court in favour of the respondent/plaintiff for granting specific performance cannot be termed wrong or erroneous. The discretion exercised by the trial court in favour of the respondent/plaintiff for granting specific performance cannot be termed wrong or erroneous. Hence the finding that the respondent/plaintiff is entitled to the relief of specific performance deserves to be confirmed. However, the learned trial judge chose to pass a decree for specific performance directing execution of the sale deed in respect of the vacant site only exclusive of the shed on payment of the balance sale consideration. The decree is silent about what is to be done with the shed available in the suit property. Perhaps the absence of proper description with measurements and the value of the shed would have prompted the learned trial judge to grant a decree for specific performance only regarding the vacant site exclusive of the shed. But the absence of any direction as to what should be done with the shed is a flaw in the judgment and decree. The said flaw cannot be corrected in this appeal as the respondent/plaintiff has not chosen to file any appeal or cross-objection. In view of the same, this court comes to the conclusion that the decree of the trial court is liable to be set aside and the suit shall be remitted back to the trial court for rendering a specific finding as to what should be done with the shed and pass a full-fledged decree according to such finding. As none of the parties has chosen to give the measurement of the shed available in the suit site and its value, it shall be just and necessary to direct the trial court to give an opportunity to the parties to furnish the said particulars and an opportunity to amend the pleadings in this regard, if necessary, and lead evidence based on which the trial court should render a finding as to what should be done with the shed. In the result, the appeal suit is allowed in part. The decree of the trial court dated 24.09.2008 made in O.S.No.53 of 2007 is set aside. In the result, the appeal suit is allowed in part. The decree of the trial court dated 24.09.2008 made in O.S.No.53 of 2007 is set aside. The suit in O.S.No.53 of 2007 is remitted back to the trial court, namely the Additional District and Sessions Judge (Fast Track Court No.1), Coimbatore with a direction to render a specific finding as to what should be done with the shed after giving an opportunity to the parties to furnish the measurement and the value of the shed available in the suit site and if necessary, after allowing them to lead evidence and then pass a full-fledged decree according to such finding. No cost.