JUDGMENT Paliwal, J. -- 1. This appeal has been filed under section 96 of Code of Civil Procedure being aggrieved with the judgment and decree dated 17th July, 2003 passed by Second Additional District Judge (Fast Track Court), Ganj Basoda district Vidisha in Civil Suit No.7A of 2003. 2. Brief facts of the case are that respondent No.1/plaintiff filed a civil suit pleading that Khilan Singh is the owner having half share in the property/ land bearing Khasra No.53 area 2.874, Khasra No.196 area 4.538, Khasra No.206 area 0.941, total area 8.173 Hectares situated in village Gorkhedi Tahsil Basoda district Vidisha. He agreed to sell his share to the respondent/plaintiff for a consideration of Rs.54,000/-. The agreement was executed which was registered in Sub-Registrar Office Basoda and Rs.45,000/- was paid to the Khilan Singh. It was agreed that Khilan Singh shall execute a sale deed after receiving remaining amount of Rs.9,000/- on Miti Jeth Sudi Puno Samvat 2051. It is further pleaded that after aforesaid date,appellant /plaintiff asked Khilan Singh to execute sale deed but Khilan Singh has not executed the sale deed in favour of the plaintiff. It is pleaded that the plaintiff has given a registered notice on 12.3.1996 asking Khilan Singh to receive Rs.9,000/- and execute the sale deed. In reply, Khilan Singh denied the agreement and stated that only Rs.25,000/- has been paid to him as loan and he has not executed the agreement to sale. Hence, civil suit has been filed. It is prayed that Khilan Singh be directed to execute the sale deed in favour of the plaintiff and also hand over possession of the land. 3. Defendant Khilan Singh filed written statement. It is admitted that he is having half share in the suit property but it is denied that he entered into agreement to sale the land. It is specifically pleaded that he has not executed agreement as security of loan. The plaintiff is doing Sahukari. The defendant was in the need of money, hence, he has taken Rs.25,000/- only as loan and he has already paid interest thereupon to the plaintiff and only principal amount of Rs.25,000/- is remained to be paid which he is ready to pay. It is further pleaded that the agreement has not been read over to me. The defendant is an illiterate villager. It is further pleaded that the agreement has not been read over to me. The defendant is an illiterate villager. The cost of the land is more than Rs.2 lacs per bigha, hence, there was no reason to sale the land. Hence, it is prayed that the suit be dismissed. 4. The learned trial Court has farmed following issues:- Ø- okn iz'u fu"d"kZ 1- D;k fnukad 14 twu 1993 dks izfroknh f[kyku flag us oknh ls 54]000-00 ¼pkSou gtkj #i;s½ esa okn xzLr Hkwfe foØ; djus dk fyf[kr vuqca/k fd;k Fkk \ gk¡ 2- D;k vuqca/k ds lkFk oknh us f[kyku flag dks 45]000-00 ¼iSarkyhl gtkj #i;s½ vfxze izfrQy Hkqxrku dj fn;k Fkk \ gk¡ 3- D;k izfroknh f[kyku flag us oknh ls vuqca/k fd;k Fkk fd og 'ks"k 9]000-00 #i;s izkIr djds fefr lqnh tsB iwue lEor~ 2051 rd okn xzLr Hkwfe dk fodz; i= fu"ikfnr dj nsxk \ gk¡ 4- D;k oknh us tsB lqnh iwue laor~ 2051 rd izfroknh f[kyku flag ls 'ks"k 9000-00 ¼ukS gtkj #i;s½ izkIr djds foØ; i= fu"ikfnr djus dk fuosnu fd;k Fkk \ gk¡ 5- D;k izfroknh f[kyku flag us oknh ls dsoy 25000-00 ¼iPphl gtkj #i;s½ dks jkf'k izkIr fd;k vkSj mls fcuk le>k;s gq;s vuqca/k i= fu"ikfnr djk;k x;k \ ugha 6- ¼v½ D;k oknh lkgwdkjh djrk gS \ Ukgha ¼c½ ;fn gkW rks izHkko \ dqN ugha dqN ugha vfrfjDr okniz'u 8- D;k oknh izfroknh ls foØ; i= fu"ikfnr djus ds lkFk fookfnr Hkwfe dk vkf/kiR; izkIr djus dk vf/kdkjh gS \ gk¡ 9- D;k bl okn dk ewY;kadu fookfnr Hkwfe ds cktkj ewY; rhu yk[k #i;s djds oknh dks U;k; 'kqYd vnk djuk pkfg;s \ ugha 10- D;k okn esa lg fgLlsnkj tloar flag vko';d i{kdkj gS] mls i{kdkj cuk;s fcuk ;g okn pyus ;ksX; ugh gS \ ugha 7- Lkgk;rk ,oa okn O;; \ oknh dk nkok lafonk ds fofufnZ"V ikyu esa oknxzLr Hkwfe dk foØ; i= fu"iknu ,oa iath;u djus dk Lohdkj fd;k tkuk oknh ds i{k esa vkKfIr lR; iznku dh xbZA After recording evidence, the learned trial Court recorded a finding that the defendant Khilan Singh has executed an agreement to sale the land for a consideration of Rs.54,000/- and received advance of Rs.45,000/-. It was also found proved that Khilan Singh agreed to execute the sale deed till Miti Jeth Sudi Puno Samvat 2051 after receiving the balance amount of consideration of Rs.9,000/-. It was also found proved that Khilan Singh agreed to execute the sale deed till Miti Jeth Sudi Puno Samvat 2051 after receiving the balance amount of consideration of Rs.9,000/-. It was also found proved that the plaintiff has asked the defendant to execute the sale deed after receiving Rs.9,000/-. Issues No.5, 6A, 9 and 10 have been decided negatively and thus, the suit has been decreed. Being aggrieved by the said judgment and decree passed by the trial Court, this first appeal has been filed. 5. It is submitted that the learned Court below has committed gross error in decreeing the suit. The plaintiff has never pleaded the readiness and willingness to perform his part of the agreement nor has proved the same. It is further submitted that the learned trial Court has not framed any issue on the crucial point of readiness and willingness on the part of the plaintiff. It is further submitted that the learned trial Court erred in not considering that the defendant/appellant is a illiterate person and hence, the burden was on the plaintiff to prove execution of the agreement in accordance with law. The findings recorded by the learned trial Court with regard to the issues No.1 to 5 are contradictory to the material on record. The trial Court has erred in overlooking the provisions of section 20 of the Specific Relief Act and has not considered that the disputed land is an agricultural land and the defendant/appellant has no other agricultural land therefore specific performance of the contract would cause great hardship to the appellant. The finding with regard to the issues No.6 to 10 are also not correct. It is prayed that the impugned judgment and decree be set aside. 6. Learned counsel appearing on behalf of the respondent supported the impugned judgment and decree and submitted that the respondent/plaintiff has pleaded that he was ready to get the sale deed executed after paying Rs.9,000/- and repeatedly asked the appellant/defendant to execute the sale deed. Notice was also given to appellant/defendant. Even after that, the sale deed was not executed and the trial Court has rightly decreed the suit. 7. I have considered the submissions of learned counsel for the parties and perused the record of the trial Court. 8. Notice was also given to appellant/defendant. Even after that, the sale deed was not executed and the trial Court has rightly decreed the suit. 7. I have considered the submissions of learned counsel for the parties and perused the record of the trial Court. 8. Shanti Kumar (PW1) deposed that Khilan Singh has agreed to sale 14 Bigha of land for consideration of Rs.54,000/- in the year 1993. An agreement was written on 14th June, 1993. he has given Rs.45,000/- in the presence of Satish and Dinesh Kumar. The document was read over by the appellant to Khilan Singh. Thereafter, the Khilan Singh has signed the agreement. He further deposed that it was agreed that the sale deed shall be executed after one year. The agreement is Ex.P-2. 9. Dinesh Kumar (PW2) and Satish Vishwakarma (PW4) supporting the statement of Shanti Kumar have stated that Khilan Singh agreed to sale his land for a consideration of Rs.54,000/-. Rs.45,000/- was paid by the Shanti Kumar. They further stated that it was agreed that after paying balance amount after one year, the sale deed shall be executed in favour of the plaintiff. 10. Khilan Singh (DW1) says that he has taken Rs.25,000/- as loan from Shanti Kumar. When he went to refund the same after one year, the plaintiff refused to receive the money and told that he will receive Rs.45,000/-. The plaintiff asked him to execute the document. When he told that he is refunding his loan, then, plaintiff refused to receive them. Mulayam Singh, Angad Singh and Daulat Singh were present at that time. Thereafter, he further stated that the document was not read over to him. Mulayam Singh (DW2) has supported the statement of Khilan Singh. 11. Angad Singh (DW3) says that he has signed the document in the Registrar Office. He has not read the document. He however admitted his signatures marked `A to A' and `B to B' Ex.P-2. He further admitted that the document was written by Sardar Singh Advocate. 12. Khilan Singh (DW1) has also admitted that he had gone to Basoda and document was written by Sardar Singh Advocate. Thereafter, they went to Registrar Office. Khilan Singh has also stated in para 5 that Sardar Singh is his relative and due to relation, he went to Sardar Singh Advocate. 12. Khilan Singh (DW1) has also admitted that he had gone to Basoda and document was written by Sardar Singh Advocate. Thereafter, they went to Registrar Office. Khilan Singh has also stated in para 5 that Sardar Singh is his relative and due to relation, he went to Sardar Singh Advocate. Khilan Singh in para 7 of his cross-examination has said that he has received cash amount. There was no agreement with respect to the interest. It is very surprising that the huge amount of Rs.25,000/- would be given as a loan without any interest. The plaintiff is not relative or close friend of Khilan Singh and according to Khilan Singh, the plaintiff engaged in Sahukari in such circumstances, it is very difficult to believe that Sahukar will give loan of Rs.25,000/- without charging any interest. 13. In para 7, Khilan Singh (DW1) has said that in lieu of interest, he has given 14 Bigha land to the plaintiff on Adhbatai. But there is no such pleading in the written statement. Hence, this statement of Khilan Singh cannot be looked into. 14. Dinesh Kumar (PW2) in para 5 denied that Shanti Kumar is his brother in law, hence, he is making false statement. Similarly, Satish Vishwakarma (PW3) in para 4 also denied that Shanti Kumar is the brother in law of his friend, hence, he is giving false statement. 15. Shanti Kumar (PW1) denied in para 6 that Khilan Singh was in the need of money, hence, Khilan Singh has taken loan. He further denied that he has not paid Rs.45,000/- to Khilan Singh. He further denied that Ex.P-2 was written in lieu of security of loan. 16. Ex.P-2 reveals that Khilan Singh has agreed to sale his land for a consideration of Rs.54,000/-. Rs.45,000/- were paid on 14.6.1993 and defendant agreed that the balance amount of Rs.9,000/- shall be paid in Miti Jeth Sudi Puno Samvat 2051. Then the sale deed would be executed. Statement of Shanti Kumar (PW1) is fully corroborated by document Ex.P-2 and by the statements of Dinesh Kumar (PW2) and Satish Vishwakarma (PW3). 17. According to Khilan Singh (DW1), document Ex.P-2 was not read over to him. As noticed above, Ex.P-2 has been written by Sardar Singh who happens to be relative of Khilan Singh. Statement of Shanti Kumar (PW1) is fully corroborated by document Ex.P-2 and by the statements of Dinesh Kumar (PW2) and Satish Vishwakarma (PW3). 17. According to Khilan Singh (DW1), document Ex.P-2 was not read over to him. As noticed above, Ex.P-2 has been written by Sardar Singh who happens to be relative of Khilan Singh. To prove the fact that Ex.P-2 was not read over to him, the best evidence would have been of Sardar Singh but Khilan Singh has not examined Sardar Singh as a witness. In such circumstances, the statement of Khilan Singh (DW1) cannot be believed that Ex.P-2 was not read over to him. 18. As noticed earlier, according to Khilan Singh, he has taken loan of Rs.25,000/- but no agreement regarding payment of interest was executed. According to Khilan Singh, he has given 14 Bigha land on adhbatai in lieu of interest but nowhere, in Ex.P-2, aforesaid fact is mentioned. According to Khilan Singh, the document Ex.P-2 was written by Sardar Singh Advocate who is his relative. 19. As noticed above, there is no pleading that Ex.P-2 was written in lieu of security of loan but this fact has not been pleaded in the written statement. Therefore, on this count also, the statement of Khilan Singh (DW1) cannot be believed. Statement of Shanti Kumar (PW1) is fully corroborated by Satish (PW3) and Dinesh (PW2). Nothing has come in their cross-examination to disbelieve their statements. Hence, there is no reason to disbelieve their testimony. 20. In view of the aforesaid, it is proved that the appellant/defendant agreed to sell his land for a consideration of Rs.54,000/-. After receiving Rs.45,000/- as advance, the appellant/defendant was agreed to execute the sale deed till Miti Jeth Sudi Puno Samvat 2051 after receiving the balance amount of Rs.9,000/-. Hence, in the opinion of this Court, the trial Court has rightly recorded the finding with regard to the issues No.1, 3 and 5. 21. Now, the question for consideration is whether, the plaintiff/respondent is entitled for a decree of specific performance. The learned counsel appearing on behalf of the appellant submits that there is no pleading regarding the readiness and willingness of the plaintiff, hence, the plaintiff/respondent is entitled to get the decree of specific performance. 21. Now, the question for consideration is whether, the plaintiff/respondent is entitled for a decree of specific performance. The learned counsel appearing on behalf of the appellant submits that there is no pleading regarding the readiness and willingness of the plaintiff, hence, the plaintiff/respondent is entitled to get the decree of specific performance. Reliance has been placed on decisions of the Apex Court in the cases of Ram Awadh (dead) by LRs and others v. Achhaibar Dubey and another, Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and others [ AIR 2003 SC 1391 ] and a decision of this Court in the case of Ramesh Chand v. Kishan Chand [ 2006(1) MPLJ 169 ]. 22. Learned counsel for the respondent submitted that there is an averment in the plaint regrading the readiness and willingness. Para 3 of the plaint reads as under:- ^^¼3½ ;g fd izfroknh f[kyku flag us mDr bdjkjc;k esa of.kZr fu;r vof/k xqtjus ds ckn Hkh oknh ds gd esa c;ukek laikfnr ugha fd;k ftlds fy, oknh ckj&ckj izfroknh ls ekSf[kd fuosnu djrk jgkA** Nowhere, in the plaint, it is averred that whether the plaintiff is ready and willing to perform his part of the contract. 23. Section 16(c) of the Specific Relief Act read thus : “Specific performance of a Contract cannot be enforced in favour of a person : “who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant". In terms of the aforementioned provision, it is incumbent upon the plaintiff both to aver and prove that he had all along been ready and willing to perform the essential terms of contract which were required to be performed by him. 24. The requirement to comply with the mandatory provisions of section 16(c) of the Specific Relief Act came up for consideration before Hon'ble apex Court in Ouseph Varghese v. Joseph Aley and others [ (1969)2 SCC 539 ], wherein it was held : “The plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement of defendant. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. Neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken those pleas. As observed by this Court in Pt. Prem Raj v. D.L.F. Housing and Construction (Private) (Ltd.) and another, (Civil Appeal No.37/66, decided on 4.4.1968) [reported in 1968(3) SCR 648 ] that it is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation the suit is not maintainable." 25. Further, in para 27 of the judgment rendered in Manjunath Anandappa Urf Shivappa Hansi (supra), the Hon'ble apex Court has observed as under: “The decisions of this Court, therefore, leave no manner of doubt that a Plaintiff in a suit for specific performance of contract not only must raise a plea that he had all along been and even on the date of filing of suit was ready and willing to perform his part of contract, but also prove the same. Only in certain exceptional situation where although in letter and spirit, the exact words had not been used but readiness and willingness can be culled out from reading all the averments made in the plaint as a whole coupled with the materials brought on record at the trial of the suit, to the said effect, the statutory requirement of section 16(c) of the Specific Relief Act may be held to have been complied with”. 26. In the instant case, the plaint reveals that there is no averments made in the plaint that the plaintiff is ready and willing to perform his part of the contract. 26. In the instant case, the plaint reveals that there is no averments made in the plaint that the plaintiff is ready and willing to perform his part of the contract. The averment that the plaintiff repeatedly requested the defendant to execute the sale deed and therefter served a notice dated 12.3.1996 does not satisfy mandatory requirement of section 16 (c) of the Specific Relief Act. 27. Though in his statement, Shantikumar (PW1) has stated that after one year of the agreement, he repeatedly asked the defendant to execute the sale deed after receiving Rs.9,000/- but defendant has not executed the sale deed then he gave a notice. He nowhere stated that when and before whom he asked the defendant to execute the sale deed and received Rs.9,000/-. 28. The learned trial Court has not framed any issue regarding the readiness and willingness of the plaintiff to perform his part of the contract. In para 22, learned trial Court has held as under:- ^^22- tgk¡ rd vuqca/k i= ds ikyu esa foØ; i= dk fu"iknu dk iz'u gS oknh }kjk izsf"kr iathd`r uksfVl ftldk iksLVy jlhn izn'kZ ih&1 gS] izfroknh ¼izfroknhx.k ua-1½ us dwV ijh{k.k ds iSjk 6 esa mDr uksfVl izkIr djuk Lohdkj fd;k gSA mlds vuqlkj mlus uksfVl dk dksbZ fyf[kr tokc oknh dks ugha fn;k Fkk ,oa flQZ ;g dg fn;k Fkk fd og Hkwfe csp jgk gSA fodz; vuqca/k esa bUdkj izfroknh Ø- 1 dk fd;k tkuk bl ckr dk Li"V lwpd gS fd og vuqca/k i= ds vuqlkj foØ; i= laiknu ds fy;s dHkh rRij ugha jgk ,oa vuqca/k Hkax djus dk nks"kh gSA gjhjke cuke nkÅ n;ky ,oa vU; 1995 ts ,y ts 125 e/; izns'k mPp U;k;ky; ds [k.MihB }kjk] ih vkbZ vkj 1994 lq-dks- 105] lw;Z ukjk;.k mik/;k; cuke jke Lo:i ikaMs ,oa vU; ij voyacu djrs gq;s ;g izfrikfnr fd;k x;k gS fd lafonk ds fofuZ"V ikyu dh vkKfIr ososfdd gS ,ao foosdkf/kdkj dk iz;ksx U;kf;d :i esa gksuk pkfg;s u fd euekus rkSj lsA ekStwnk ekeys fl) rF;ksa dks n`f"Vxr j[krs gS U;kf;d foosdkf/kdkj dk iz;ksx oknh ds i{k esa fd;k tkuk U;k;kfpr izrhr gksrk gSA** 29. From the aforesaid para, it is crystal clear that the learned trial Court has not considered the requirement of readiness and willingness for grant of decree of specific performance and completely overlooking the mandatory provisions of section 16(c) of the Specific Relief Act, granted the decree in favour of the plaintiff. 30. It is also pertinent to mention here that section 20 of Specific Relief Act, 1963 gives discretion to the Court, and provides that the Court is not bound to grant relief of specific performance merely because it is lawful to do so. It further provides that the discretion is not to be exercised arbitrarily but guided by judicial principles. Sub-section (2) of section 20 enumerates three conditions when discretion is not to be exercised to grant decree of specific performance:- “(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.” Explanation (1) to sub-section (2) provides that mere inadequacy of consideration shall not be deemed to be an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation (2) provides that the question whether the performance of a contract when involved hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent in the contract, be determined with reference to the circumstances accepting at the time of contract. Sub-section (3) provides that Court may properly exercise discretion to decree specific performance in any case where plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. 31. In the instant case, the learned Court below has not at all considered the provisions of section 20 of the Specific Relief Act. Sub-section (3) provides that Court may properly exercise discretion to decree specific performance in any case where plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. 31. In the instant case, the learned Court below has not at all considered the provisions of section 20 of the Specific Relief Act. In para 22 of the judgment, mere it has been mentioned that “looking to the facts of the present case, it appears to be just and proper to exercise judicial discretion in favour of the plaintiff”. Thus, the trial Court has not mentioned cogent reasoning upon which, the judicial discretion has been exercised in favour of the plaintiff. 32. In view of the aforesaid, in the opinion of this Court, the learned Court below has erred in granting decree of specific performance of contract. However, considering that the execution of agreement and payment of consideration has been found proved, it appears to be equitable, just and proper to direct the appellants to pay back the amount of Rs.45,000/- to the plaintiff with interest at the rate of 18% per annum from 14.6.1993 till date within a period of three months from today, failing which, this appeal shall stand dismissed. (Judgment rendered by Hon'ble apex Court in Civil Appeal No.7893 of 2015 in the case of Hemanta Mondal and others v. Sri Ganesh Chandra Naskar passed in decided on 23.9.2015 is being relied upon). With the aforesaid, this appeal stands disposed of. The parties are directed to bear their own costs. Advocate fee as certified. Decree be drawn accordingly.