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2015 DIGILAW 567 (KAR)

Chandrakanthamma v. B. Ramakrishnaiah

2015-06-03

B.SREENIVASE GOWDA, N.KUMAR

body2015
JUDGMENT ; N. Kumar, J. 1. This is a defendants appeal challenging the judgment and decree of the trial Court which has decreed the suit for specific performance as prayed for. 2. For the sake of convenience, parties are referred to as they are referred to in the original suit. 3. The subject matter of the suit is, land bearing Sy. No. 19, measuring 3 acres 14 guntas situated at Byadarahalli (Sharaparapalya), Kasaba Hobli, Nelamangala taluk, Bangalore Rural District, which is more particularly described in the schedule to the plaint and hereinafter referred to as the 'schedule property'. 4. The schedule property was allotted to late Sri N.K. Lakshminarayana Setty, the husband of the first defendant and father of defendants 2 and 3 in a family partition. After the death of the said Sri N.K. Lakshminarayana Setty, the defendants being the legal heirs succeeded to the schedule property. The defendants in order to meet family legal necessities, more particularly to discharge the debts incurred for daughter's marriage expenses and to have their own dwelling house and to purchase landed property were badly in need of funds. They offered to sell the schedule property to the plaintiff, as plaintiff was in search of agricultural properties in and around Nelamangala. After deliberations, the first defendant agreed to sell the schedule property at the rate of Rs. 18,50,000/- per acre. The agreement was reduced into writing on 30-12-2005 which is duly executed by the parties and also attested by witnesses. The case of the plaintiff is, the defendant No. 1 parted with supportive revenue documents in respect of the suit schedule properties. The revenue documents such as RTC and mutation register extract bearing No. 1/87-88 indicating the partition and separate possession of respective sharers of late K.S. Narasimhaiah Setty and certified copy of partition deed dt. 29-08-1974 which indicates the schedule of properties allotted to each of the sharers in the family of late K.S. Narasimhaiah Setty. The defendants received a sum of Rs. 1,00,000/- by cash under the agreement. The defendants were obliged to measure, fix the boundaries and to effect survey phod and to execute absolute sale deed in favour of the plaintiff. There was nil encumbrance and have no litigation was the assurance given. The defendants received a sum of Rs. 1,00,000/- by cash under the agreement. The defendants were obliged to measure, fix the boundaries and to effect survey phod and to execute absolute sale deed in favour of the plaintiff. There was nil encumbrance and have no litigation was the assurance given. Even if there is any litigation or defect in the title, the defendants assured to indemnify and rectify and cure the defects at their own cost and to discharge the legal and contractual obligation, the period has been fixed as one month by defendants. 5. The plaintiff was ready and willing with the funds to pay the balance sale consideration and to conclude the contract. The plaintiff in truth and fact visited the defendants at Nelamangala every alternative days and demanded to conclude the contract as per the terms agreed upon in the agreement. The plaintiff was always ready and willing to perform his part of the contractual obligations. The defendants assured and re-assured that the terms of the contract would be honoured and concluded as per terms. Believing the words of the defendants with faith and confidence, with abundant tolerance, the plaintiff waited and obtained time as per repeated requests made by defendants. The manner in which the defendants extended lame and untenable excuses was beyond anybody's prudent thinking to suspect the bona fides of the first defendant. However, the plaintiff smelt suspicious and hostility in the conduct of the defendants. The plaintiff convened panchayat of all children/branch of late K.S. Narasimhaiah Setty and the independent witnesses having subscribed their signatures to the documents. The defendants evaded to participate and to discuss the matter in the panchayat which was convened in the month of February, 2006. However to the shock and surprise, the defendants issued a legal notice addressed by all three brothers/branch jointly through their Counsel. In the notice it was attributed that the agreement was entered into with an act of coercion and compulsion. The said allegations caused pain and disturbance to the plaintiff. It is only on the offer made by the defendants, the plaintiff agreed to purchase the suit schedule properties. In the notice it was attributed that the agreement was entered into with an act of coercion and compulsion. The said allegations caused pain and disturbance to the plaintiff. It is only on the offer made by the defendants, the plaintiff agreed to purchase the suit schedule properties. It was upon ad-ediem consensus, parties have entered into a written contract, more so, the defendants were well versed with worldly affairs, the question of threat and coercion is not only a strange but ridiculous statement made by the defendants to escape from the contractual obligation, more so, the legal obligation to honour and to respect the contract. Plaintiff replied to the notice. To conclude the contract and to honour the contract by discharging legal obligations, the plaintiff was ever ready with the funds, the defendants committed default and breach of contract. Therefore the plaintiff was constrained to file a suit for specific performance of the agreement of sale and for other consequential reliefs. 6. After service of summons, the defendants entered appearance, engaged a Counsel and filed a common written statement. They contended that the plaintiff has not approached the Court with clean hands, forcing the enforcement of the alleged agreement to sell. The time to perform the terms of the contract as stated in the agreement has not been complied by the plaintiff. Plaintiff himself has played a predominant role in getting the document by way of threat, coercion and calling upon the defendants to execute the document and on compelling circumstances, the said agreement to sell was executed. The total sale consideration was fixed as Rs. 18,50,000/-, but what was paid by the plaintiff was only an amount of Rs. 1,00,000/- as advance consideration amount at the time of entering into the agreement to sell. The plaintiff has no money with him, in any manner whatsoever, to enter into the contract of agreement to sell, fulfilling the terms of the agreement to sell and to complete the contract. He is a penniless person, having no money with him and therefore he could not perform the terms of the contract. Therefore, these defendants were left with no alternative, than to issue a notice dt. 03-03-2006 cancelling the terms of the agreement to sell and under the said notice, the amount of Rs. 1,00,000/- paid as advance consideration, was returned by way of cheque. Therefore, these defendants were left with no alternative, than to issue a notice dt. 03-03-2006 cancelling the terms of the agreement to sell and under the said notice, the amount of Rs. 1,00,000/- paid as advance consideration, was returned by way of cheque. While issuing the notice, it has been brought to the notice of the plaintiff that the agreement to sell dt. 30-12-2005 was entered into under coercion, compulsion and these defendants were not interested in entering into any contract of sale in respect of the schedule property and also these defendants are intending to retain the property for their family members. The defendants categorically stated that there are pending litigations, that the matters are pending before the Hon'ble High Court of Karnataka at Bangalore, that there are litigations and thereby the defendants did not intend to commit another mistake in entering into a contract. Thereby the litigations were brought to the knowledge of the plaintiff and it is well within the knowledge of the plaintiff that there are pending litigations and therefore it is not possible for these defendants to execute any agreement to sell or enter into an agreement to sell in respect of the property and therefore on compulsion and coercion, the said agreement to sell came into existence. In these circumstances, the suit of the plaintiff does not survive for consideration. They have not acquired full title and ownership of the property. There are several difficulties that these defendants have been exposed to and those difficulties have been highlighted, referred and appraised to the plaintiff. Despite the highlight, reference and appraisal, the plaintiff has deliberately taken a predominant role in bringing in the state of affairs for execution of the document and consequently the suit is liable to be rejected. The consideration amount fixed is meager. It was less in rate and thereby the plaintiff played a predominant role in making the document fabricated to suit to his needs and the document came to be in existence by force, compulsion and coercion. They further submitted that they intended to retain the schedule landed property for their own purpose and for the benefit of their family by developmental activities in respect of their own agricultural activities which are being carried on for many number of years. They denied all other allegations in the plaint and sought for dismissal of the suit. 7. They further submitted that they intended to retain the schedule landed property for their own purpose and for the benefit of their family by developmental activities in respect of their own agricultural activities which are being carried on for many number of years. They denied all other allegations in the plaint and sought for dismissal of the suit. 7. On the aforesaid pleadings, the trial Court framed the following issues: (1) Whether plaintiff proves that first defendant has agreed to sell suit schedule property and upon negotiations plaintiff has agreed to enter into a written contract? (2) Whether plaintiff proves that he was/is even ready and willing to conclude the said contract by discharging his legal obligations? (3) Whether defendants prove that agreement of sale dt. 30-12-2005 was entered into under coercion, compulsion (threat) etc.? (4) Whether defendants prove that advance consideration amount came to be returned to the plaintiff? (5) To what relief the parties are entitled? 8. The plaintiff in order to substantiate his claim, examined himself as P.W. 1 and he also examined two other attesting witnesses as P.Ws. 2 and 3 and produced 14 documents which were marked as Exs. P. 1 to P. 14. On behalf of the defendants, the third defendant was examined as D.W. 1 and they produced three documents which were marked as Exs. D. 1 to D. 3. 9. The trial Court, on appreciation of the aforesaid oral and documentary evidence on record, held that the plaintiff has proved that the defendants have agreed to sell the suit schedule property as per the terms of Ex. P. 1, defendants have failed to prove that Ex. P. 1 came into existence by use of coercion, compulsion and threat. They have also failed to prove that they have refunded part consideration of Rs. 1,00,000/- to the plaintiff. Dealing with the question of readiness and willingness, after taking into consideration the Bank statements and the sale deeds, held that the plaintiff has proved that he was always ready and willing to perform his part of the contract. Accordingly, the suit of the plaintiff was decreed with costs. 10. Aggrieved by the said judgment and decree of the trial Court, the defendants have preferred this appeal. 11. Sri Udaya Holla, the learned Senior Counsel appearing for the defendants/appellants contended, as per the terms of Ex. Accordingly, the suit of the plaintiff was decreed with costs. 10. Aggrieved by the said judgment and decree of the trial Court, the defendants have preferred this appeal. 11. Sri Udaya Holla, the learned Senior Counsel appearing for the defendants/appellants contended, as per the terms of Ex. P. 1 - the agreement of sale, the sale transaction has to be complied within one month from the date of agreement of sale. The total consideration payable under the said agreement of sale was Rs. 61.97 lakhs at the rate of Rs. 18,50,000/- per acre, the total area being 3 acres 14 guntas. A sum of Rs. 1,00,000/- was paid under the agreement. The plaintiff in order to succeed in a suit for specific performance, not only he has to aver his readiness and willingness, but he must also prove that he was ready with the balance sale consideration from the day of the agreement till the date of the suit. The evidence adduced on record shows, neither on the date of the agreement nor at the expiry of one month period from the date of agreement, the plaintiff was ready with the balance sale consideration. The documents produced only show that he started arranging for funds subsequent to June, 2006. Even these documents do not show that the plaintiff was in possession of the entire balance consideration. He relies on the accounts of his wife, children and relatives and business accounts. At the expiry of one month period, he did not call upon the defendants to perform their part of the contract by conveying to them that he was ready and willing to perform his part of the contract. In fact, it is the defendants who issued a notice first on 03-03-2006, canceling the agreement of sale and returning the sum of Rs. 1,00,000/- received as advance. In fact the reply sent to the legal notice was only on 05-12-2006 nearly nine months after the legal notice. Till such time or immediately after the expiry of the agreement of sale, the plaintiff has not demonstrated his readiness and willingness to perform his part of the contract by issuing any legal notice or by calling upon the defendants to perform their part of the contract. Till such time or immediately after the expiry of the agreement of sale, the plaintiff has not demonstrated his readiness and willingness to perform his part of the contract by issuing any legal notice or by calling upon the defendants to perform their part of the contract. These aspects have been completely missed by the trial Court and the finding recorded, that the plaintiff was ready and willing to perform his part of the contract is not supported by legal evidence on record and therefore he submits, the judgment and decree of the trial Court requires to be set aside. 12. Per contra, Sri S.S. Nagananda, the learned Senior Counsel appearing for the plaintiff/respondent contends, as it is clear from the agreement of sale, within one month from the date of agreement the defendants have to perform their part of the contract but even to this day, the defendants have not performed their part of the contract, namely getting the khata of the properties made out in their name effecting phoding and fixing boundaries. The records produced in the case show, from June, 2006 and subsequently plaintiff is in possession of the requisite funds to pay the balance sale consideration. In fact plaintiff sold two of their properties and raised Rs. 33,35,000/-. Therefore he contends, on a proper appreciation of the evidence on record, the trial Court was justified in holding, the plaintiff was ready and willing to perform his part of the contract and that the said finding is based on legal evidence. No case for interference is made out. He also submits, having regard to the escalation of the price from the date of the suit till today, the plaintiff is willing to pay such higher amount as may be fixed by the Court. His client is willing to pay difference guidance value of the property, which is Rs. 80,00,000/- per acre and therefore he submits, no case for interference with the judgment and decree of the trial Court is made out. 13. In the light of the aforesaid facts and the rival contentions, the point that arises for our consideration in this appeal is as under: Whether the finding of the trial Court that the plaintiff was ready and willing to perform his part of the contract and therefore he is entitled to a decree for specific performance, calls for interference? 14. In the light of the aforesaid facts and the rival contentions, the point that arises for our consideration in this appeal is as under: Whether the finding of the trial Court that the plaintiff was ready and willing to perform his part of the contract and therefore he is entitled to a decree for specific performance, calls for interference? 14. It is relevant to point out at this juncture, that this is the only point urged, challenging the trial Court judgment and therefore no other contentions are required to be considered. It is not in dispute between the parties that the defendants are the absolute owners of the suit schedule property. It is also not in dispute that the defendants executed an agreement of sale dt. 30-12-2005 in favour of the plaintiff agreeing to sell the schedule property for a consideration of Rs. 18,50,000/- per acre. A sum of Rs. 1,00,000/- by cash was paid as advance under the agreement of sale which is also not in dispute. In so far as the period stipulated for completing the sale transaction is concerned, one month's time from the day the documents pertaining to the schedule property is furnished was granted. The relevant clause reads as under: xxx 15. It is also not in dispute, the sale transaction was not concluded within one month. On the contrary, the defendants got a notice issued as per Ex. P. 12 dt. 03-03-2006 through their Counsel to the plaintiff. In fact, it is a notice which was sent on behalf of the defendants and their two sharers who owned adjacent properties, with whom the plaintiff had entered into a contract. It is mentioned in the said notice that the suit agreement - Ex. P. 2 was entered under coercion and compulsion and defendants were not interested in entering into any contract for sale of the property. Defendants intend to retain the property for their family members. They are already embroiled in a pending litigation which is pending before the Hon'ble High Court of Karnataka and the matter is pending for a decision. As they are garbed by litigation, they do not intend to commit any mistake. Defendants intend to retain the property for their family members. They are already embroiled in a pending litigation which is pending before the Hon'ble High Court of Karnataka and the matter is pending for a decision. As they are garbed by litigation, they do not intend to commit any mistake. They are not interested in executing any registered sale deed in favour of the plaintiff as they are undergoing difficulties and hardships and intend to retain the property for their own interest and for the benefit of their family members. They returned the advance amount of Rs. 1,00,000/- received, by way of a cheque. 16. There is a controversy about the service of this notice and the address, in as much as, notice was issued and it was received by the plaintiff. But the fact remains, the plaintiff sent a reply to the said legal notice through his Counsel on 05-12-2006. In reply it is stated, the defendants voluntarily approached the plaintiff and offered to sell immovable agricultural properties and they expressed their financial crisis in their families, on account of financial distress and requested the plaintiff to purchase the property and to pay consideration to quench their financial difficulties of the family. The defendants approached the plaintiff with their wives and children. That thereby the agreement was entered into. There was no coercion or compulsion as alleged in the legal notice. The pending litigation before the Hon'ble High Court was not made known to them at any time. It was only a lame excuse and only to avoid the contract and to back out from the contract, with an intention to deceive the plaintiff. It is stated in the said reply that the plaintiff is ready and willing to honour the contract and pay balance sale consideration and to conclude the contract, he called upon the defendants to receive the balance sale consideration within a clear 15 days from the date of service of notice, otherwise, they would be constrained to institute appropriate legal proceedings to enforce the contract. It is after the exchange of the said notice the suit is filed on 24-01-2007. 17. In support of their contention that the plaintiff was ready and willing to perform his part of the contract, he was ready with the balance sale consideration, they have produced Ex. P. 2 - a copy of the registered sale deed dt. It is after the exchange of the said notice the suit is filed on 24-01-2007. 17. In support of their contention that the plaintiff was ready and willing to perform his part of the contract, he was ready with the balance sale consideration, they have produced Ex. P. 2 - a copy of the registered sale deed dt. 07-02-2007 executed by the plaintiff in favour of one S.R. Udayashankar selling the agricultural land measuring 1 acre 31 guntas in Bavikere village, Kasaba hobli, Nelamangala taluk for a consideration of Rs. 17,50,000/-. Ex. P. 3 is yet another sale deed executed by the plaintiff's wife - G. Manjula, on 07-02-2007 in favour of S.R. Ravishankar selling agricultural land of 1 acre 2 guntas in Bavikere village, Kasaba hobli, Nelamangala taluk, for a consideration of Rs. 15,75,000/-. Ex. P. 4 is a Bank statement of one R. Hemanth, son of the plaintiff, pertaining to Vijaya Bank, Peenya Branch, for the period from 29-06-06 to 19-02-07, which shows that on 29-06-06 a sum of Rs. 16,245/- was in his credit and the closing balance was Rs. 19,94,738/-. Ex. P. 5 is a Bank statement of the very same Vijaya Bank, Peenya Branch, standing in the name of Sandhya R., the daughter of the plaintiff, showing the balance of Rs. 65,301/- as on 29-06-06 and the closing balance as Rs. 14,41,728/- as on 19-02-07. Ex. P. 6 is yet another Bank statement issued by the same Bank statement issued by the same Vijaya Bank which is in the name of Shivashankar M., the brother of the plaintiff, where a sum of Rs. 5,50,000/- is shown as on 27-02-07 and as on 02-02-08 the balance is shown as Rs. 9,79,535/-. Ex. P. 7 relates to Mr. Madhukar, son of the brother of the plaintiff where a sum of Rs. 5,50,000/- is shown as on 27-02-07 and closing balance as on 02-02-08 is shown as Rs. 10,82,471/-. Ex. P. 8 is a Current Account sheet of Janatha Seva Cooperative Bank Ltd. in the name of M/s. M.B.T. Industry - a proprietary firm of the plaintiff. As on 01-08-06 the amount standing to his credit is Rs. 9,10,159/- and the closing balance as on 24-01-2007 is Rs. 17,30,426/-. Ex. P. 9 is Vijaya Bank statement of M.B.T. Industry - a proprietary concern of G. Manjula, which discloses a sum of Rs. As on 01-08-06 the amount standing to his credit is Rs. 9,10,159/- and the closing balance as on 24-01-2007 is Rs. 17,30,426/-. Ex. P. 9 is Vijaya Bank statement of M.B.T. Industry - a proprietary concern of G. Manjula, which discloses a sum of Rs. 1,99,747/- to her credit as on 09-01-06 and the closing balance as on 07-03-06 is Rs. 5,25,412/-. Ex. P. 10 is the statement of current account issued by Bangalore District and Bangalore Rural District Co-operative Central Bank Ltd., of M.B.T. industry, of which the plaintiff is the proprietor showing a sum of Rs. 3,153/- as on 03-03-06 and the closing balance is Rs. 14,31,634/- as on 18-10-06. Ex. P. 11 is a statement of Vijaya Bank, Peenya Branch, Bangalore, standing in the name of M/s. Manju Bricks and Tiles, where a sum of Rs. 1,22,233.49 ps. is shown as opening balance as on 25-04-06 and the closing balance is Rs. 2,84,961.99 ps. These documents are produced to prove the fact that the plaintiff was ready with the balance sale consideration to pay the same to the defendants and take the sale deed. 18. From the aforesaid documents on which plaintiff relies, it is clear, neither on the date of agreement of sale nor on the expiry of one month from the date of agreement of sale nor on the date the defendant issued a legal notice as per Ex. P. 12 nor on the date the reply was sent as per Ex. P. 13, nor on the date the suit was filed and not even to this day, it does not disclose that the plaintiff had the requisite funds i.e. the balance sale consideration in his account to pay and take the sale deed. He is relying on the amounts which are in the possession of his wife, children, brother and their children. Except the plaintiff and his son, the other account holders have not been examined in this case to prove the fact that the amount so mentioned in their respective accounts would be made available to the plaintiff to enable him to pay the balance sale consideration and take the sale deed. In fact all these documents clearly demonstrate that before June, 2006, the plaintiff did not have the requisite funds to pay the balance sale consideration and take sale deed. In fact, Exs. In fact all these documents clearly demonstrate that before June, 2006, the plaintiff did not have the requisite funds to pay the balance sale consideration and take sale deed. In fact, Exs. P. 2 and P. 3 on which reliance is placed, which are the sale deeds under which agricultural lands were sold and a sum of Rs. 17,50,000/- and Rs. 15,75,000/- were received as consideration was only on 07-02-07. That amount was not available for payment to the defendants to complete the sale transaction. In fact the said properties were sold after the filing of the suit. Similarly, the other statement of accounts show that they were all pertaining to the period subsequent to the period of one month prescribed and after the legal notice was issued by the defendants. In fact, the learned Senior Counsel for the plaintiff relied on a judgment of the Apex Court in this context, in the case of COROMANDEL INDAG PRODUCTS PRIVATE LIMITED v. GARUDA CHIT AND TRADING COMPANY PRIVATE LIMITED AND ANOTHER reported in (2011) 8 SCC 601 at para 20, which reads as under: "It is also relevant to point out the stand of the parties as reflected in their pleadings and evidence. In terms of Section 16(c) of the Specific Relief Act, 1963, it is incumbent on the party, who wants to enforce the specific performance of a contract, to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract. The Explanation appended to clause (c) makes it clear that if a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court. However, the plaintiff must aver performance of, or readiness and willingness to perform the contract according to its true construction." 19. Therefore, not only the plaintiff has to aver his readiness and willingness, he must prove his readiness and willingness by such acceptable evidence on record. The Explanation makes it clear, in proving his readiness and willingness, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money. Therefore, not only the plaintiff has to aver his readiness and willingness, he must prove his readiness and willingness by such acceptable evidence on record. The Explanation makes it clear, in proving his readiness and willingness, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money. But nonetheless, when he is called upon to prove in a Court of law his readiness and willingness, he must prove by acceptable evidence that on the day he was expected to pay the balance sale consideration agreed upon, either he had ready funds or from where he would have raised the funds as on that day. Raising of the funds or source of funds subsequent to the date of the suit would not prove the plaintiff's readiness and willingness to perform his part of the contract in terms of the contract agreed upon. In this connection, this Court had an occasion to review the entire case law on the point and in the case of SMT. PADMINI RAGHAVAN v. MR. H.A. SONNAPPA, SINCE DEAD BY HIS L.Rs. AND OTHERS reported in ILR 2014 Kar. Pg. 233 held as under: "51. Thus, Section 16(c) of Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. 52. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. 52. Thus in a suit for specific performance, the plaintiff should not only plead and prove the terms of the agreement, but should also plead and prove his readiness and willingness to perform his obligations under the contract in terms of the contract. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. It is indisputable that in a suit for specific performance of contract, the plaintiff must establish his readiness and willingness to perform his part of the contract. The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till the date of the decree, he must prove that he is ready and has always been willing to perform his part of the contract. AS stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract. 53. AS stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract. 53. Readiness and willingness refer to the state of mind and conduct of the purchaser, as also his capacity and preparedness on the other. One without the other is not sufficient. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. In so far as willingness is concerned, it reflects the mental attitude of the plaintiff to part with or pay the balance sale consideration agreed to be paid. If there are any reservations without any justification, or it is made conditional on the happening of any event which is not agreed upon, it shows his unwillingness to perform his part of the contract. The obligation imposed by Section 16 is upon the Court not to grant specific performance to a plaintiff who has not met the requirements of Clauses (a), (b) and (c) thereof. A Court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the Court to determine whether it has or has not been complied with." 20. Therefore, it is clear, in order to prove his readiness and willingness, the amount of consideration which the plaintiff has to pay to the defendants, must of necessity be proved to be available right from the date of the execution of the agreement till the date of the decree. He must prove that, he is ready and has always been willing to perform his part of the contract. He must prove that, he is ready and has always been willing to perform his part of the contract. The factum of his readiness and willingness to perform his part of the contract has to be adjudged with reference to the conduct of the parties and the attendant circumstances. 21. In this context, it was contended by the learned Senior Counsel that the period of one month is not the period for performance of the contract. It is from one month from the date of the defendants furnishing the requisite documents the amount has to be paid. In this context, it is necessary to refer to the allegations in the plaint. In para 8 of the plaint, it is submitted that, on the day of execution and signing of sale agreement dt. 30-12-2005, defendant No. 1 parted with supportive revenue documents in respect of the suit schedule properties - the revenue documents such as RTC and mutation register extract bearing MR No. 1/87-88 indicating the partition and separate possession of respective shares of late K.S. Narasimha Setty and certified copy of the partition deed dt. 29-08-74 which indicates the schedule of the properties allotted to each of the sharers in the family of late K. Narasimha Setty. Copies of these documents were produced along with the plaint as documents 2, 3 and 4. Therefore, in terms of the agreement of sale the documents relating to the schedule properties were handed over to the plaintiff on the date of the agreement itself. Assuming that some more documents were required to be furnished by the defendants itself, the plaintiff should have called upon the defendants to furnish those documents. In fact, when the defendants issued the notice as per Ex. P. 12, terminating the contract and refunding the amount of Rs. 1,00,000/- received under the agreement, in the reply sent on 05-12-06, there is no whisper that the defendants have not performed their part of the contract by not handing over the requisite documents of title. In fact, in the said reply, all that has been said is, the pending litigations were not made known to him. Now the defendants are trying to avoid the contract. In fact, in the said reply, all that has been said is, the pending litigations were not made known to him. Now the defendants are trying to avoid the contract. It was asserted in the reply, the plaintiff is ready and willing to perform his part of the contract to pay the balance sale consideration and these defendants have to execute the sale deed within 15 days. Therefore, there was no act which the defendants had to comply with before they received the balance sale consideration, though in the agreement of sale it is mentioned that phoding has to be done, boundaries fixed and thereafter the sale deed has to be executed. In the said reply notice sent, no such grievance is made out by the plaintiff. It is understandable, because the schedule property is a property belonging to the defendants, which the husband of the first defendant acquired under a registered partition deed. Title was not in dispute. The property which has fallen to the share of each brothers is clearly demarcated. Partition deed copy is handed over. On the basis of the partition deed, mutation entries had been made and the RTC and the mutation orders have been handed over. As the husband had died, the wife and children being the legal heirs were entitled to the property and there could not be any defects or objection for making out khatas in their names. They were in actual possession of the property and therefore rightly in the reply notice sent, the plaintiff did not make an issue of any of these things. It is only in the course of the trial, in order to get over the hurdle of not being ready with the balance sale consideration, within the time stipulated, it is contended, till the defendants perform their part of the terms of the contract, there was no obligation on the part of the plaintiff to be ready with the sale consideration. 22. Being ready with the sale consideration and being willing to part with the sale consideration is different from making the payment of the sale consideration. Unless the defendants perform their part of the contract, they will not be entitled to receive the sale consideration, but that does not postpone the day on which the plaintiff has to be ready with the balance sale consideration. Unless the defendants perform their part of the contract, they will not be entitled to receive the sale consideration, but that does not postpone the day on which the plaintiff has to be ready with the balance sale consideration. The contract specifically stipulates that registration could be done within one month or the balance sale consideration has to be paid within one month from the date the documents are furnished. As is clear from the averments, if defendants had handed over the title deeds on the date of the agreement itself, the sale transaction had to be completed within one month from the date of the agreement. In fact, that is how the parties have understood the contract as is clear from clause 6 of para 9 of the plaint, where it is stated, to discharge the legal and contractual obligation, the period has been fixed as one month by the defendants. 23. It was contended, on the date of the suit agreement, three separate agreements were entered into. Though all of them received a common notice cancelling the agreement of sale subsequently by paying enhanced amount, the plaintiff was able to secure the sale deeds after filing a suit and obtaining a decree and therefore that factor should be taken into consideration in deciding this case also. This suit has to be decided on the basis of the pleadings and evidence in this case and on the basis of the agreement of sale. If after filing of the suit, decree has been passed, if parties enter into a compromise agreement in which plaintiff agrees to pay higher amount and if the defendants in the said suit are willing to execute the sale deed, that would in no way affect the merits of this appeal. Even now if the plaintiff is able to persuade the defendants to execute the sale deed by paying higher consideration, he could do so. But that is not a relevant factor in deciding the issues involved in this case where the plaintiff was not ready and willing to perform his part of the contract and where the plaintiff was not ready with the balance sale consideration within the time stipulated under the agreement of sale. 24. The very fact that one month period was fixed for completion of the sale transaction indicates the urgency in concluding the transaction. 24. The very fact that one month period was fixed for completion of the sale transaction indicates the urgency in concluding the transaction. Though the defendants have failed to prove their case of coercion and compulsion in executing the sale deed, the fact that one month period is fixed shows the urgency and the sale has to be concluded within that time. The evidence on record shows, notwithstanding the fixing of one month as the period for completion of the sale transaction, plaintiff was not in a position to raise funds on the date of the agreement or within one month from the date of the legal notice issued by the defendants terminating the contract. It is only nine months after receipt of the legal notice a reply was sent. Probably from then on they have made an attempt to raise the requisite funds - not in the name of the plaintiff, but in the name of his family members, brother and their family members. That would not meet the requirements of law. In that view of the matter, the trial Court committed an error in not properly appreciating the evidence on record, in particular, the dates of Exs. P. 2 to P. 11 and the names in which those accounts stood, coupled with the fact, except the plaintiff, no other account holder was examined to prove the fact of their readiness to part with the consideration for the purchase of the schedule property. If that evidence is to be accepted, it is the duty of the plaintiff to produce the accounts of all his relatives to show the readiness and willingness and seek for relief at the hands of the Court. As set out above, it is a question of jurisdiction. Unless the plaintiff proves and avers as prescribed under Sec. 16(c) of the Specific Relief Act, the Court gets no jurisdiction to decree the suit for specific performance. 25. In that view of the matter, the judgment and decree of the trial Court is not sustainable, contrary to law and contrary to the legal evidence on record. As such, it is liable to be set aside. Hence, we pass the following order: The appeal is allowed. 26. The judgment and decree of the trial Court is hereby set aside. 27. The suit of the plaintiff is dismissed. Though the defendants enclosed a cheque for Rs. As such, it is liable to be set aside. Hence, we pass the following order: The appeal is allowed. 26. The judgment and decree of the trial Court is hereby set aside. 27. The suit of the plaintiff is dismissed. Though the defendants enclosed a cheque for Rs. 1,00,000/- with the legal notice-Ex. P.12, the said cheque has not been encashed. Therefore, the defendants shall pay the said amount of Rs. 1,00,000/- with 18% interest per annum from the date of the agreement till the date of appeal. 28. It is submitted that the plaintiff under the terms of the impugned decree has deposited the balance sale consideration in the trial Court. The said amount in turn has been kept in Fixed Deposit in a Nationalised Bank earning interest. Now that the appeal is allowed and the judgment and decree of the trial Court is set aside, the said amount in deposit has to be returned to the plaintiff. However it is made clear, the plaintiff taking back the said amount would in no way effect his right to challenge this judgment before the Apex Court. Parties to bear their own cost.