JUDGMENT : A. SELVAM, J. These Original Side Appeals are directed against the judgment and decree dated 3.10.2006 passed by the learned Single Judge of this Court in C.S. No. 1269 of 1994. 2. The first appellant in OSA No. 90 of 2007, as plaintiff, has instituted C.S. No. 1269 of 1994 on the file of this Court, praying to pass an executable decree in pursuance of sale agreement dated 18.10.1988, wherein the deceased respondent/appellant in OSA No. 193 of 2007 has been shown as sole defendant. 3. The material averments made in the plaint may be stated like thus: The suit property is situate in Chennai City and the same is the absolute property of the defendant. The plaintiff is the sole proprietor of M/s. Flash Builders. The plaintiff has entered into a sale agreement dated 18.10.1988 and thereby agreed to purchase the suit property for a sum of Rs. 50,50,000/-. On the date of execution of agreement of sale, an advance of Rs.1 Lakh has been given to the defendant. The second instalment of Rs. 4,50,000/- has to be paid on or before 15.1.1989. The defendant has to obtain Income Tax Clearance Certificate before execution of sale deed. In the agreement of sale, it is agreed by both the plaintiff and defendant that time is essence of contract. The Income Tax Act, 1961 has been amended in the year 1986 by Finance Act Chapter XXC and thereby introduced section 269 UL. By virtue of section 269 UE (1) of Income Tax Act, the Central Government has become the owner on 9.1.1989. Under such circumstances, the defendant has not been able to receive the remaining consideration and execute sale deed in favour of the plaintiff. The plaintiff, as petitioner, has filed W.P. No. 1259 of 1988, wherein WMP No. 1920 of 1989 has also been filed. The defendant has made appearance and contended that the order of purchase should not be cancelled and the same shows that the defendant is not intended to sell the suit property in favour of the plaintiff. In the mean while, the defendant has gone to America and the plaintiff has not known his address. The plaintiff has issued a Notice dated 21.7.1994 and the same has been returned. The plaintiff has always been ready and willing to perform his part of contract. In the mean while, the defendant has gone to America and the plaintiff has not known his address. The plaintiff has issued a Notice dated 21.7.1994 and the same has been returned. The plaintiff has always been ready and willing to perform his part of contract. Since the plaintiff has filed writ petition and other proceedings, it shows that the plaintiff has always been ready to perform his part of contract. The defendant has not been able to perform his part of contract even after 9.1.1989. On 10.2.1989, the defendant has unilaterally terminated the suit sale agreement. Under such circumstances, the present suit has been instituted for the relief sought therein. 4. In the written statement filed on the side of the defendant, it is averred that the plaintiff has closed his business and left to Singapore. The defendant is not aware of Power of Attorney Deed alleged to have been executed by the plaintiff. The suit is barred by limitation. The plaintiff has failed to pay the second instalment of Rs. 4,50,000/- on or before 15.1.1989. The plaintiff has committed breach of contract. It is false to aver that the competent authority has desired to buy the property because of its under valuation. The suit property is situate near Boat Club Road and the present rate per ground is Rs. 19 Lakhs. It is false to allege that the defendant is not intended to sell the suit property. It is also equally false to say that the defendant has left India after getting No Objection Certificate and there is no merit in the suit and the same deserves to be dismissed. 5. On the basis of the divergent pleadings raised on either side, the learned Single Judge of this Court has framed necessary issues and after contemplating both the oral and documentary evidence, has dismissed the suit, however, directed the defendant to pay a cost of Rs. 11 Lakhs and out of Rs. 11 Lakhs, Rs. 10 Lakhs is payable to the account of I.P. No. 53/1992 and balance of Rs. 1 Lakh is payable to the Tamil Nadu State Legal Services Authority. Further it is directed that the Official Assignee shall settle the claims of Power Agent P.W.1 Venkatesan towards the legal expenses. 6. During pendency of the suit, the concerned Official Assignee has been arrayed as second plaintiff. 1 Lakh is payable to the Tamil Nadu State Legal Services Authority. Further it is directed that the Official Assignee shall settle the claims of Power Agent P.W.1 Venkatesan towards the legal expenses. 6. During pendency of the suit, the concerned Official Assignee has been arrayed as second plaintiff. Against the judgment and decree passed by the learned Single Judge of this court, the plaintiffs have filed O.S. A. No. 90 of 2007 and against the imposition of cost upon the defendant, O.S.A. No. 193 of 2007 has been preferred. Since common questions of law and facts are involved, a common judgment is pronounced. 7. The sum and substance of the case of the plaintiffs is that the first plaintiff has entered into a sale agreement dated 18.10.1988 with the defendant so as to purchase the suit property for a sum of Rs. 50,50,000/- and the first plaintiff has advanced a sum of Rs. 1 Lakh and the second instalment of Rs. 4,50,000/- has to be paid on or before 15.1.1989. Further, it is agreed in the sale agreement that before execution of sale deed in favour of the first plaintiff, the defendant has to obtain No Objection Certificate from the concerned Income Tax Department. As per the amended provision of Income Tax Act, 1961, the Income Tax Department has become the owner. After obtaining No Objection Certificate from the Income Tax Department, the defendant has left to America and the first plaintiff has given a legal notice and the same has not been served and further, the first plaintiff has always been ready and willing to perform his part of contract and since the defendant has failed to discharge his obligation, the present suit has been instituted for the relief sought therein. 8. The contention put forth on the side of the defendant is that even though an agreement of sale has come into existence on 18.10.1988 between the first plaintiff and defendant, the first plaintiff has failed to pay the second instalment of Rs. 4,50,000/- on or before 15.1.1989 and the first plaintiff has left to Singapore without informing to the defendant and since the first plaintiff has failed to perform his part of contract, the discretionary relief of specific performance cannot be granted in the present suit and the same deserves to be dismissed. 9. 4,50,000/- on or before 15.1.1989 and the first plaintiff has left to Singapore without informing to the defendant and since the first plaintiff has failed to perform his part of contract, the discretionary relief of specific performance cannot be granted in the present suit and the same deserves to be dismissed. 9. The learned Single Judge, after considering the overall evidence available on record, has found that the plaintiffs are not entitled to get discretionary relief of specific performance and ultimately dismissed the suit. 10. The learned senior counsel appearing for the appellants in OSA No. 90 of 2007/plaintiffs has strenuously contended that the suit sale agreement has come into existence on 18.10.1988 between the first plaintiff and defendant and the first plaintiff has agreed to purchase the suit property for a sum of Rs. 50,50,000/- and on the date of agreement, an advance of Rs. 1 Lakh has been given and further agreed to give the second instalment of Rs. 4,50,000/- on or before 15.1.1989. Further it is agreed in the agreement of sale that before execution of sale deed, the defendant has to obtain No Objection Certificate from the concerned Income Tax Department. After obtaining No Objection Certificate, the defendant has left to America without giving prior information to the first plaintiff and in the mean while, the first plaintiff has filed an Insolvency Petition No. 53 of 1992, wherein he has been adjudged as insolvent on 3.9.1992 and he has also filed various legal proceedings before this Court, wherein a specific finding has been given that the Official Assignee can continue the present proceeding and even though the first plaintiff has always been ready and willing to perform his part of contract, the defendant has failed to perform his part of contract. Under the said circumstances, the present suit has been instituted, but the learned Single Judge, without considering the duty cast upon the defendant and also the subsequent legal proceedings, has erroneously dismissed the suit and therefore, the judgment and decree passed by the learned Single Judge are liable to be set aside. 11. Under the said circumstances, the present suit has been instituted, but the learned Single Judge, without considering the duty cast upon the defendant and also the subsequent legal proceedings, has erroneously dismissed the suit and therefore, the judgment and decree passed by the learned Single Judge are liable to be set aside. 11. Per contra, the learned counsel appearing for the defendants/appellants in OSA No. 193 of 2007 has also equally contended that the present suit has been instituted for getting the discretionary relief of specific performance by virtue of the sale agreement dated 18.10.1988, wherein a specific stipulation is found place to the effect that the second instalment of advance of Rs. 4,50,000/- has to be paid on 15.1.1989 and the same has not been paid by the first plaintiff and further, the first plaintiff has filed I.P. No. 53 of 1992, wherein an adjudication has been made on 3.9.1992 and therefore it shows that the first plaintiff has no sufficient means to give balance of sale consideration and since the first plaintiff has not shown his readiness and willingness to perform his part of contract and since he has been adjudged as an insolvent, the learned Single Judge has rightly dismissed the suit in respect of the relief sought therein and therefore, the conclusion arrived at by the learned Single Judge to that effect is perfectly correct and the same does not require any interference. 12. The learned senior counsel appearing for the appellants in O.S.A. No. 90 of 2007 has relied upon the following decision: (i) In AIR 2004 SC 4472 (P.D. Souza vs. Shondrilo Naidu), at paragraph No. 23, it is observed as follows: "It appears from the records that the defendant herself did not produce the original documents nor redeemed the mortgage. If the mortgage was not redeemed and the original documents were not produced, the sale deed could not have been executed and in that view of the matter, the question of plaintiff's readiness and willingness to perform his part of contract would not arise." 13. It is a settled principle of law that in a case like this, both parties should perform their respective obligation created in an agreement of sale. If one party has willfully failed to perform his or her part of contract, he or she cannot blame the other party. 14. It is a settled principle of law that in a case like this, both parties should perform their respective obligation created in an agreement of sale. If one party has willfully failed to perform his or her part of contract, he or she cannot blame the other party. 14. With these legal backdrops, the Court has to further analyze the present lis. 15. It is an admitted fact that an agreement of sale has come into existence between the first plaintiff and defendant on 18.10.1988 and the same has been marked as Ex.P.2, wherein the defendant, viz., M.N. Dhananjayan has been shown as vendor and one M/s. Flash Builders, having their registered office at No. 4, Sivaraman Street, Mandaveli, Madras-28, represented by its Proprietor Sri. V. Krishnan, son of S. Venkatachalam has been shown as purchaser. 16. Even a mere reading of the opening page of Ex.P.2, it shows that the purchaser is nothing but the said M/s. Flash Builders and not an individual. 17. Now the Court has to look into the short cause title of the plaint filed in C.S. No. 1269 of 1994, wherein it is stated that the name of the first plaintiff is I.V. Krishnan, represented by its Power of Attorney agent A. Venkatesan. Therefore, it is quite clear that the real purchaser has not been shown as plaintiff in C.S. No. 1269/1994 and on that ground alone, the plaint filed in C.S. No. 1269 of 1994 is liable to be thrown out. 18. Now the Court has to analyze the status of the first plaintiff at the time of filing of the present suit. 19. It is an admitted fact that before filing the present suit, in the year 1992, the first plaintiff has filed I.P. No. 53 of 1992 so as to adjudge him as an insolvent, wherein it has been clearly stated that during December 1988, an accident has happened, wherein all his family members have passed away and he has not been able to run even day to day life and business. On 3.9.1992, the first plaintiff has been adjudged as an insolvent and the same is evidenced in Ex.P.2 itself. The present suit has been instituted on 24.8.1994. In fact, this Court has groped the entire averments made in the plaint, wherein no mention has been made about the adjudication order passed in I.P. No. 53 of 1992 on 3.9.1992. On 3.9.1992, the first plaintiff has been adjudged as an insolvent and the same is evidenced in Ex.P.2 itself. The present suit has been instituted on 24.8.1994. In fact, this Court has groped the entire averments made in the plaint, wherein no mention has been made about the adjudication order passed in I.P. No. 53 of 1992 on 3.9.1992. Therefore, by way of suppressing the vital judicial proceeding and also the status of the first plaintiff, the present suit has been instituted, as if he is always ready and willing to perform his part of contract by virtue of sale agreement dated 18.10.1988. 20. It is true that various legal proceedings have become emerged, wherein the locus standi of the first plaintiff has been challenged and ultimately found that initiation of the present suit is itself defective. Since the first plaintiff has been adjudged as an insolvent, the second plaintiff, Official Assignee, can continue the present suit. Even though the said finding has been given by the competent court, as pointed out earlier, the filing of the present suit is itself defective and further the first plaintiff is not entitled to file the present suit in his individual capacity and at the most, he can file the same in the capacity of proprietor of the said M/s. Flash Builders, but the same has not been done. 21. Even assuming without conceding that the first plaintiff is entitled to file the present suit, the Court has to look into as to whether he is always ready and willing to perform his part of contract and also as to whether he is having sufficient means to get the sale deed registered from the defendant? 22. As adverted to earlier, the suit sale agreement has come into existence on 18.10.1988 and on the date of sale agreement, Rs. 1 Lakh has been given to the defendant. The second instalment of Rs. 4,50,000/- has not been paid on or before 15.1.1989. It is true that the defendant has to obtain necessary No Objection certificate from the Income Tax Department. But, as seen from the records, the first plaintiff has not paid the second instalment of Rs. 1 Lakh has been given to the defendant. The second instalment of Rs. 4,50,000/- has not been paid on or before 15.1.1989. It is true that the defendant has to obtain necessary No Objection certificate from the Income Tax Department. But, as seen from the records, the first plaintiff has not paid the second instalment of Rs. 4,50,000/- and even in the year 1992, he has filed I.P. No. 53 of 1992, wherein it is stated that in the year 1988, an accident has happened, wherein all his family members have passed away and his business has become sunk. Therefore, it is quite clear that even during December 1988, the first plaintiff has had no wherewithal to pay balance of sale consideration as per sale agreement dated 18.10.1988. 23. It is true that the first defendant has to obtain necessary No Objection Certificate from the Income Tax Department. Both in the plaint as well as in the written statement, some reasons have been stated for not obtaining the same within the stipulated period. Further, as stipulated in the suit sale agreement dated 18.10.l988, the first plaintiff has to pay the second instalment of Rs. 4,50,000/- on or before 15.1.1989. But, as stated supra, even during December 1988, the business of the first plaintiff has become sunk. Therefore, it is needless to say that after execution of the suit sale agreement dated 18.10.1988, the first plaintiff has not shown his readiness and willingness to perform his part of contract. 24. At this juncture, it would be apposite to look into Section 16(c) of the Specific Relief Act, 1963 and the same reads as follows: "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 the performance of which has been prevented or waived by the defendant." 25. It is an admitted fact that Section 16 of the said Act deals with personal bars to relief. It is an admitted fact that Section 16 of the said Act deals with personal bars to relief. A cursory reading of Section 16(c) would go to show that in a suit instituted on the basis of contract, one has to aver and prove that he is always ready and willing to perform his part of contract, otherwise he is not entitled to get discretionary relief of specific performance. Further, it is made clear that mere pleading would not be sufficient to fill up the statutory duty enjoins upon a party. 26. In the instant case, as stated supra, immediately after the suit sale agreement, during December 1988, the first plaintiff has lost everything and in fact his debts are more than that of his assets. Therefore, it is clear that the first plaintiff has not established his readiness and willingness to perform his part of contract and further it is an avowed principle of law that both readiness and willingness would also include financial status. 27. At this juncture, the learned counsel appearing for the respondents/appellants in O.S.A. No. 193 of 2007 has relied upon the following decisions: (i) 1996 (4) SCC 526 , (His Holiness Acharya Swami Ganesh Dassji vs. Sita Ram Thapar), wherein, the Hon'ble Supreme Court has held that the plaintiff must plead and prove his readiness and willingness to perform his part of the contract, as per Section 16(c) of the Special Relief Act, 1963. (ii) (Umabai and another v. Niilkanth Dhondiba Chavan (D) Lrs. and another), wherein the Hon'ble Supreme Court has held that it is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff/respondents are always ready and willing to perform his part of contract, as required under section 16(c) of the Specific Relief Act, must be determined, having regard to the entire attending circumstances. (iii) In (Nalamothu Venkaiya (died) by LR & another v. B.S. Neelakanta & another), the High Court of Andhra Pradesh has also taken the same view under section 16(c) of the Specific Relief Act, 1963. 28. From a conjoint reading of the decisions referred to supra, it is made clear that as per Section 16(c) of the said Act, the entire burden lies upon the plaintiff to prove the statutory duty enjoins upon him. 28. From a conjoint reading of the decisions referred to supra, it is made clear that as per Section 16(c) of the said Act, the entire burden lies upon the plaintiff to prove the statutory duty enjoins upon him. In the instant case, as taunted earlier, even during December 1988, the first plaintiff has had no wherewithal to proceed further as per terms of the suit sale agreement dated 18.10.1988. Since the first plaintiff has not established his alleged readiness and willingness, the Court can unflinchingly come to a conclusion that in the present case, the discretionary relief of specific performance cannot be granted. 29. As stated earlier, the first plaintiff has been represented by his Power of Attorney agent by name A. Venkatesan. It is an admitted fact that the first plaintiff has not adduced any evidence for the purpose of showing his alleged readiness and willingness. However, the said Power of Attorney, viz., A. Venkatesan has been examined as P.W.1 and in fact, he is totally precluded from adducing evidence in respect of suit sale agreement dated 18.10.1988. 30. At this juncture, the Court has to look into the decision reported in AIR 2005 SC 439 (Janki Vashdeo Bhojwani and another v. Indusland Bank Ltd., and others), wherein the Hon'ble Supreme Court has held that power of attorney cannot depose evidence instead of principal. On that score also, the Court cannot infer that the first plaintiff has established his readiness and willingness to perform his part of contract. 31. It is true that there are certain mistakes on the part of the defendant in obtaining No Objection Certificate from the Income Tax Department. It has already been pointed out that even though the payment of second instalment of sale consideration falls on 15.1.1989, even during December 1988, the first plaintiff has had no wherewithal. Under such circumstances, on the basis of the mistakes committed on the side of the defendant, the Court cannot come to a conclusion that in the present suit, the discretionary relief of specific performance can be granted. 32. The learned Single Judge, after considering the overall circumstances available on record, has rightly rejected the relief of specific performance. 33. Now the Court has to analyze the cost imposed by the learned Single Judge upon the defendant. The learned Single Judge has awarded the cost of Rs. 32. The learned Single Judge, after considering the overall circumstances available on record, has rightly rejected the relief of specific performance. 33. Now the Court has to analyze the cost imposed by the learned Single Judge upon the defendant. The learned Single Judge has awarded the cost of Rs. 11,00,000/- upon the defendant and directed to pay Rs. 10 Lakhs to the Official Assignee and the remaining Rs. 1 Lakh to the Tamil Nadu Legal Services Authority. 34. The learned counsel appearing for the appellant in O.S.A. No. 193 of 2007 has strenuously contended that the finding given by the learned Single Judge with regard to the said aspect is totally erroneous and in support of his contention, he has drawn the attention of the court to the decision reported in (2009) 2 SCC 656 (Ashok Kumar Mittal vs. Ram Kumar Gupta and another), wherein at paragraph Nos. 6 to 8, it is observed as follows: "6. Under section 35 of the Code, award of costs is discretionary but subject to the conditions and limitations as may be prescribed and the provisions of any law for the time being in force. Under section 35A, compensatory costs for vexatious claims and defences may not exceed to Rs. 3,000/-. Further the primary object of levying costs under sections 35 and 35A CPC, is to recompense a litigant for the expense incurred by him in litigation to vindicate or defend his right. It is therefore payable by a losing litigant to his successful opponent. When an appellant or a plaintiff has already paid the prescribed court fee in regard to the appeal or suit, to the state at the time of institution, it is debatable whether any costs can be awarded to the state by way of penalty, in a litigation between two private parties. Courts will have to act with care while opening new frontiers. 7. One view has been that the provisions of sections 35 and 35A CPC do not in any way affect the wide discretion vested in the High Court in exercise of its inherent power to award costs in the interests of justice in appropriate civil cases. Courts will have to act with care while opening new frontiers. 7. One view has been that the provisions of sections 35 and 35A CPC do not in any way affect the wide discretion vested in the High Court in exercise of its inherent power to award costs in the interests of justice in appropriate civil cases. The more sound view however is that though award of costs is within the discretion of the court, it is subject to such conditions and limitations as may be prescribed and subject to the provisions of any law for the time being in force; and where the issue is governed and regulated by sections 35 and 35A of the Code, there is no question of exercising inherent power contrary to the specific provisions of the Code. 8. Further, the provisions of section 35A seem to suggest that even where a suit or litigation is vexatious, the outer limit of exemplary costs that can be awarded, in addition to regular costs, shall not exceed Rs. 3000/-. It is also to be noted that huge costs of the order of Rs. Fifty thousand or Rs. One lakh, are normally awarded only in writ proceedings and public interest litigations, and not in civil litigation to which sections 35 and 35A are applicable. The principles and practices relating to levy of costs in administrative law matters cannot be imported mechanically in relation to civil litigation governed by the Code." 35. From a mere reading of the observation made by the Hon'ble Supreme Court, it is clear that awarding of compensatory costs should be based on certain principles of law. 36. In the instant case, the learned Single Judge has simply imposed a cost of Rs. 11 Lakhs upon the defendant. It has already been mentioned in so many places that the first plaintiff has suppressed so many material facts including his status at the time of filing of the suit and in fact, the present suit is nothing but vexatious and therefore, this Court is of the view that imposition of cost of Rs. 11 Lakhs upon the defendant is not only onerous but also erroneous. Therefore, viewing from any angle, the order, in respect of cost, passed by the learned Single Judge, is liable to be set aside. 37. 11 Lakhs upon the defendant is not only onerous but also erroneous. Therefore, viewing from any angle, the order, in respect of cost, passed by the learned Single Judge, is liable to be set aside. 37. It has already been discussed in detail that the first plaintiff is not entitled to get the discretionary relief of specific performance. Under such circumstances, the argument advanced by the learned Senior Counsel appearing for the appellant in O.S.A. No. 90 of 2007 is sans merit, whereas the argument advanced by the learned counsel appearing for the respondents in O.S.A. No. 90 of 2007 and the appellant in O.S.A. No. 193 of 2007 is really having subsisting force and altogether O.S.A. No. 90 of 2007 is liable to be dismissed, whereas O.S.A. No. 193 of 2007 is liable to be allowed. In fine, O.S.A. No. 90 of 2007 is dismissed without cost and O.S.A. No. 193 of 2007 is allowed without cost and the order dated 31.10.2006 passed by the learned Single Judge in C.S. No. 1269 of 1994, in respect of awarding cost of Rs. 11 Lakhs is set aside. Consequently, the connected Miscellaneous Petitions are closed.