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2016 DIGILAW 351 (TRI)

Dilip Kumar Nag v. Saila Bala Das

2016-11-07

S.TALAPATRA

body2016
JUDGMENT : This is an appeal under Section 100 of the CPC from the judgment dated 19.10.2012 delivered in Title Appeal No.70 of 2006 by the Addl. District Judge, Court No.4, West Tripura, Agartala. By the said judgment, the judgment and decree dated 28.07.2006 passed by the Civil Judge, Senior Division, Court No.1, West Tripura, Agartala in Title Suit No.09 of 2005 has been reversed. Against that reversal finding the plaintiff has preferred this appeal. As consequence of the impugned judgment dated 19.10.2012, the suit instituted by him being Title Suit No.09 of 2005 has been dismissed even though the trial court, the court of the Civil Judge, Senior Division, Court No.1, Agartala, West Tripura in persuant to the judgment dated 28.07.2006 decreed the suit. 2. At the time of admitting this appeal the following substantial questions of law were formulated for hearing by the order dated 13.02.2013: “(i) Whether the judgment and decree passed by the first appellate Court in reversing the judgment and decree passed by the trial Court is perverse? (ii) Whether the findings of the first appellate Court that the preparation of draft sale deed and purchasing of stamp paper is the primary ingredient of proving the readiness and willingness on the part of the appellant is correct. (iii) Any other substantial question of law may be formulated at the time of hearing of the matter.” The essential fact may be relevant for having the context be noted at the outset for consideration of this appeal. 3. On 11.07.2004, an unregistered deed of agreement for sale and purchase was executed between the parties and the plaintiff-appellant paid a sum of Rs.52,000/- as the earnest money. It was stipulated in the said agreement that the remainder of the consideration money i.e. Rs.2,36,250/- will be paid by the plaintiff within the first week of Bhadra, 1411 B.S. corresponding to 24th August, 2004 A.D. After receiving the full consideration money i.e. Rs.2,88,250/- the defendant No.1 [now deceased] shall execute the sale deed in favour of the plaintiff. Thereafter, the plaintiff claimed to have approached the defendant No.1 [now deceased] with the balance amount of Rs.2,36,250/, but the defendant No.1 [since deceased] was reluctant to accept the said amount on this or that pretext. On 15.08.2004, the plaintiff again approached the defendant No.1 [now deceased], but he again refused to accept the said sum. Thereafter, the plaintiff claimed to have approached the defendant No.1 [now deceased] with the balance amount of Rs.2,36,250/, but the defendant No.1 [since deceased] was reluctant to accept the said amount on this or that pretext. On 15.08.2004, the plaintiff again approached the defendant No.1 [now deceased], but he again refused to accept the said sum. On 20.08.2004, the plaintiff, the appellant herein went to the house of the defendant No.1 with a deed-writer but he refused to accept the money. However he had assured that he would be coming to the office of the sub-registrar for executing sale deed and to deposit the money safely in his bank account. The plaintiff served a notice to the defendant No.1 with a request to execute the sale deed in his favour, but without any result and hence the suit for specific performance has been instituted by the plaintiff, the appellant herein. 4. The defendants however contested the suit by filing the written statement denying the averments made by the plaintiff in the plaint. It has been asserted that by them as per terms of the agreement the plaintiff did not pay the balance amount to the defendant No.1 [since deceased]. Despite his repeated request, there had been no initiative to get the sale deed executed in conformity to the terms of the said agreement to sale. Per contra, the plaintiff averred that the balance amount of Rs.2,36,250/- was with the plaintiff for payment. Thereafter, the defendant No.1 [since deceased] transferred the suit land in favour of his daughter, the defendant No.2 by the gift deed dated 17.02.2005. According to the defendant since the plaintiff failed to perform his part by making payment of the remainder of the consideration money, the earnest money as received by the defendant No.1 got forfeited in terms of the agreement. However, the defendants have clearly stated that they are ready to refund the earnest money as received by them, to the extent of Rs.52,000/-, but the plaintiff did not accept the same. What has further been also asserted by them is that the sale deed could not be registered in favour of the plaintiff as he did not approach the defendant No.1 within the stipulated time and hence the plaintiff is not entitled to get any relief as prayed for. What has further been also asserted by them is that the sale deed could not be registered in favour of the plaintiff as he did not approach the defendant No.1 within the stipulated time and hence the plaintiff is not entitled to get any relief as prayed for. The following issues were framed by the trial court for purpose of adjudicating the suit: “(i) Is the suit maintainable in its present form and nature? (ii) Whether the plaintiff was ready and willing to pay the balance amount of the defendant within stipulated time as per term, if so, whether contract is enforceable in law; (iii) Whether the defendant No.1 failed to execute the sale deed in terms of the agreement and whether the defendants failed to perform their part of contract after taking the balance amount from the plaintiff within the stipulated time; (iv) Whether the plaintiff is entitled to get a sale deed registered in his favour, as prayed for; (v) What other relief/reliefs are the parties entitled?” 5. On recording the evidence as led the parties, the trial court by its judgment dated 28.07.2008 has observed as under: "8. These are the evidence of the plaintiff and the defendants. On careful consideration of the evidence of the P.Ws & D.W it is crystal clear that the defendant No.1 executed the unregistered Bainapatra in favour of the plaintiff for sale of the suit land (B schedule) out of his A schedule at a consideration amount of Rs.2,88,250/and out of the settled amount of Rs.2,88,250/the plaintiff paid 52,000/as an advance for which an unregistered Bainapatra was created between the parties and scribe as per dictation of the defendant No.1 who was from their locality written out the Bainapatra with stipulation that the balance amount would be paid within first week of Bhadra, 1411 B.S. corresponding to 24th August, 2004 but according to the P.W. I (Plaintiff) who has been supported by other P.Ws that he met the defendant No.1 on several occasions to take the balance amount and to get a sale deed registered in his favour but the defendant No.1 was dragging the matter on taking the balance amount on various false pretexts. It is also in evidence of the scribe P.W.3 that on one occasion on 20.08.2004 the plaintiff and his friend P.W.2 met the defendant No.1 in his house in the morning of 20.08.2004 and requested him to take the balance amount and to get the sale deed registered and accordingly he agreed and asked them to stay in the Sub-Registry Office on 20.08.2004 where he would appear to sign the sale deed for the purpose of registration after taking the balance amount and accordingly the plaintiff with his friend P.W.2 Habul Chandra Dey and including the scribe P.W.3 were present before the Sub-Registry Office on 20.08.2004 and were waiting with necessary stamp papers for the defendant No.1 for registration after paying the balance consideration amount to the defendant No.1, but he did not turn up. After considering the evidence of P.Ws and evidence of D.W.1, I further find, the plaintiff was always ready and willing to pay up the balance consideration amount but the defendant was not taking the money and failed to discharge his obligation. After expiry of the terms of the contract the plaintiff also served notice through his lawyer with a request to get a sale deed registered in his favour but the defendant No.1 did not turn up rather on a false pretext fraudulently transferred the suit land by way of gift marked Exbt.A to his daughter defendant No.2 most illegally during subsistence of the contract between the plaintiff and defendant No.1 for which the gift deed marked Exbt.A is void ab initio. It is transparent from the evidence of P.W.s that for the fault of defendant No.1 who was not ready and willing to perform his part of obligation the sale deed could not be executed by the defendant No.1 after taking the balance amount from the plaintiff who was and is always ready and willing to comply his part of obligation. Hence, Plaintiff is entitled to get a sale deed registered in his favour in respect of the suit land and he is also entitled to cost from the defendant No.1. Hence, Issue No.2,3,4 & 5 are decided in favour of the plaintiff. 9. In the result, the suit is decreed on contest with cost and the plaintiff is entitled to get Specific Performance of Contract of sale of the suit land within 3(three) months. Hence, Issue No.2,3,4 & 5 are decided in favour of the plaintiff. 9. In the result, the suit is decreed on contest with cost and the plaintiff is entitled to get Specific Performance of Contract of sale of the suit land within 3(three) months. The defendant No.1 himself or by his constituted attorney would be liable to execute the sale deed in favour of the plaintiff within such time in respect of the suit land after receiving the balance consideration amount failing which the plaintiff shall have the right to enforce the contract after expiry of 3 months from the date of decree and to get possession and sale deed registered through court on payment of the balance consideration amount to the defendant No.1.” 6. Being aggrieved by that judgment dated 28.07.2006, the defendants filed an appeal under Section 96 of the CPC in the court of the District Judge, West Tripura, Agartala being Title Appeal No.70 of 2006. The said appeal was transferred to the court of the Addl. District Judge, Court No.4, West Tripura, Agartala who by the judgment dated 19.10.2012 allowed the appeal on reversing the findings as extracted herein above and observing as under: "In view of the above, it is crystal clear that the respondent was not ready and willing to discharge his obligation as per the terms and conditions of agreement (Exbt.3). Since the stamp paper was not purchased and no draft of finally purchased deed was prepared, how it can be said that on 20th August, 2004 as per their discussion made between the respondent and the appellant no.1 (since deceased), really the respondent was ready and willing to discharge his liability under agreement even on the last date of agreement i.e. 21.08.2004 corresponding to 1st week of Bhadra, 1411 B/S. Regarding second moot point, I have to discuss whether the Advocate’s notice was issued in time. The recital of agreement (Exbt.3) the sale was about to be executed by on or 1st week in the Bhadra, 1411 B/S corresponding to 21.08.2004 i.e. within third week of August. The spirit of the agreement was over on the expiry of 21st day of August, 2004. Be that as it may the said Advocate’s notice dated 23.08.2004 was not in time it was not made within the stipulated period of agreement.” 7. Mr. The spirit of the agreement was over on the expiry of 21st day of August, 2004. Be that as it may the said Advocate’s notice dated 23.08.2004 was not in time it was not made within the stipulated period of agreement.” 7. Mr. B. Majumder, learned counsel appearing for the appellant however has not pressed for any new substantial question of law. He has fairly submitted that he would confine his submission under the substantial questions No.1 and 2 as quoted above. According to him, the first appellate court’s appreciation of the evidence is perverse inasmuch as the very substance or substratum of the evidence has not been assessed in the context of the case. 8. Mr. B. Majumder, learned counsel appearing for the appellant has submitted that while reversing the judgment of the trial court the appellate court has appreciated the evidence perversely. According to Mr. Majumder, learned counsel, in terms of the agreement to sale (bainapatra) which was executed on 11.07.2004 between the plaintiff and the original defendant No.1 it was scheduled to expire on 23.08.2004. From the evidence of the plaintiff, PW1, it would appear that without executing the sale deed in terms of the said agreement to sale, the original defendant No.1, Bhanu Ranjan Das executed a gift deed being 1-2128 (Exbt.A) on 17.02.2005 and the same was registered on 17.02.2005. Since in breach of the said agreement to sale the defendant No.1 created a third party interest in favour of his daughter, Smt. Smriti Das she was pleaded as the defendant No.2 in the suit. 9. Mr. Majumder, learned counsel has submitted further that the plaintiff-appellant has clearly stated that he visited the defendant No.1 (now deceased) on several occasions e.g. 25.07.2004, 01.08.2004, 02.08.2004 and 15.08.2004. Lastly on 28.02.2004 he visited along with Habul Dey [PW2] and one deed-writer Manindra Narayan Das [PW3]. When the plaintiff in their presence offered the defendant No.1 the remainder of the consideration money i.e. Rs.2,36,250/- in terms of the said agreement to sale deed dated 11.07.2004 and within the stipulated date. The plaintiff requested him to come to execute the sale deed. On 20.08.2004, he visited the house of the defendant No.1 on his instruction as given on 15.08.2004 when the plaintiff visited the house of the defendant No.1 along with Habul Chandra Dey [PW2]. The plaintiff requested him to come to execute the sale deed. On 20.08.2004, he visited the house of the defendant No.1 on his instruction as given on 15.08.2004 when the plaintiff visited the house of the defendant No.1 along with Habul Chandra Dey [PW2]. On 20.08.2004, the defendant No.1 in presence of the deed-writer clearly stated that he would accept the money and hand over the possession of the Schedule-B land in his favour. Accordingly on 20.08.2004 he visited in the morning to the house of the defendant No.1 along with entire balance amount of the consideration money when the said deed-writer was also present there. The land was also measured and boundary was confirmed vis-a-vis the description in the agreement to sale. Thereafter, the plaintiff offered the balance amount to the defendant No.1. The defendant No.1 replied that he would deposit the said money in the bank. Thus he requested the plaintiff to come to the court compound by 10 a.m. when he would receive the same and execute the sale deed. In that place, Manindra Narayan Das was paid Rs.20,000/- to purchase stamp and to meet other incidental expenses for registration. But they waited till 5 p.m., but the defendant No.1 did not turn up. The plaintiff returned from the court compound being fed up. He served a notice on the defendant on 23.08.2004 requesting to execute the sale deed by accepting the balance consideration money within 15(fifteen) days from the date of receipt of the notice. Since no positive results yielded, he has to institute the suit. The said story was corroborated by PW2 and PW3. 10. PW2 has just replicated the story of the plaintiff whereas PW3 has categorically stated that he took the measurement of the land and the land was measuring 2 ganda 1 kara 1 kranta 10 dhur including a pathway out of the total lands of 9 ganda and odds belonging to the defendant No.1. He verified the documents. The price of the suit land was settled at Rs.2,88,250/- at the rate of Rs.25,000,00/- per kani. He has also stated that he prepared the agreement to sale as per instruction of the parties. PW3 has also stated that not only the defendant No.1 put his signature on the agreement but his son in law namely Shri Pradyot Das had also witnessed to the execution of agreement to sale. He has also stated that he prepared the agreement to sale as per instruction of the parties. PW3 has also stated that not only the defendant No.1 put his signature on the agreement but his son in law namely Shri Pradyot Das had also witnessed to the execution of agreement to sale. He has stated further as under: “……Thereafter, as requested by the plaintiff, I along with the plaintiff visited the house on 15.08.2004 and further on 20.08.2004, while in both the occasions the plaintiff offered him to accept the balance consideration money of Rs.2,36,250/- and to execute the sale deed in due time but he did not accept the same and avoided it. The plaintiff also waited the whole day of 20.08.2004 in my office along with Shri Habul Dey and the rest money as per assurance of the Defendant No.1, but that was also in vain due to the absence of him. In the morning hours of the day, the suit land was further measured and marked for the better satisfaction of the parties.” He has also informed that he received Rs.20,000/- as the cost of registration. The said amount is lying with him till the date when he deposed in the court. In the cross-examination PW1 was suggested that he had shown a road to the south of the boundary perversely beyond the agreement. He had admitted in the cross-examination that following the agreement no draft was prepared by the said deed-writer. However, he denied that he was not ready and willing to pay the balance consideration amount to the defendant No.1 within time. He denied all other suggestions contrary to what has been said in the examination-in-chief. 11. Mr. Majumder, learned counsel appearing for the appellant has submitted that the testimony of the defendant No.1 is a cock and bull story, just to shield his failure to perform the obligation as created by the said agreement to sale. However, DW1 [the defendant No.1] has categorically stated that in reply to the notice dated 23.08.2004, which was received on 25.08.2004, the defendant No.1 had clearly stated that the plaintiff never approached the defendant No.1 with the balance amount within the stipulated time. Thereafter, he gifted the land in favour of his daughter. However, DW1 [the defendant No.1] has categorically stated that in reply to the notice dated 23.08.2004, which was received on 25.08.2004, the defendant No.1 had clearly stated that the plaintiff never approached the defendant No.1 with the balance amount within the stipulated time. Thereafter, he gifted the land in favour of his daughter. In the cross-examination, he has stated as under: “It is a fact that since the plaintiff was not paying the balance amount, hence I had to gift away the land in favour of my daughter before cancellation of agreement by the competent authority. I did not also ask the plaintiff to fulfil the terms of agreement by paying the balance amount. I did not also issue any notice upon the plaintiff asking him to pay up the balance amount as per contract.” 12. He has denied that the purchase was planned for paying the expenses of marriage of his daughter. He has admitted that he sent letter to the plaintiff to take back the advance amount. The daughter of the defendant No.1 [the defendant No.2] namely Smiriti Das also testified in the trial and supported the defendant No.1. Similarly the wife of defendant No.1 [DW3] namely Saila Bala Das corroborated the version of the defendant No.1 stating that the plaintiff failed to perform his part and he did not approach the defendant No.1 with the balance consideration money within the period as fixed by the said agreement to sale. However, she has admitted that the money was required for giving marriage of their daughter [DW2]. She has however stated that: “Taking advantage of illiteracy of my husband, plaintiff in connivance with Scribe inserted the pathway in the Schedule of Agreement Deed. I have heard it from my husband after expiry of period of agreement. The plaintiff never offered any amount to my husband after the Agreement in question was executed.” 13. Mr. Majumder, learned counsel has finally submitted that the evidence was appreciated properly by the trial court and the suit was decreed. To buttress his contentions, Mr. Majumder, learned counsel has cited a few decision of the apex court and of Madras High Court which according to him unveils the position of law. Mr. Majumder, learned counsel has finally submitted that the evidence was appreciated properly by the trial court and the suit was decreed. To buttress his contentions, Mr. Majumder, learned counsel has cited a few decision of the apex court and of Madras High Court which according to him unveils the position of law. In Motilal Jain vs. Ramdasi Devi and Others reported in (2000) 6 SCC 420 : AIR 2000 SC 2408 , it has been held that: “It was held that in the absence of any material to show that 'A' at any stage was not ready and willing to perform his part of contract or that he did not have the necessary funds for payment when the sale deed would be executed after the sanction was obtained, 'A' was entitled to a decree for specific performance of contract.” 14. Mr. Majumder, learned counsel has submitted that there is clear averment of readiness and willingness in the plaint and those have been proved by the plaintiff and as such he is entitled to get a decree of specific performance of contract for sale. Mr. Majumder, learned counsel has placed his reliance on Pandurang Ganpat Tanawade vs. Ganpat Bhairu Kadam and Others reported in (1996) 10 SCC 51 : AIR 1997 SC 463 where the apex court has observed as under: 5. In paragraph 6 the appellant has stated that he sent a notice dated June 5, 1976 to Smt. Janabai asking her to execute the sale-deed and that she neither gave a reply to the said notice nor executed the sale-deed. In the said paragraph the appellant has also stated that he sent a registered notice to the respondents on March 13, 1978 asking them to execute the sale-deed but they did not execute the sale-deed. In paragraph 10 the appellant has stated that as per conditions in the deed of agreement for sale the appellant is willing to pay fees which is required for a sale-deed, cost of registration and balance of amount of Rs. 3,200/-. In paragraph 10 the appellant has stated that as per conditions in the deed of agreement for sale the appellant is willing to pay fees which is required for a sale-deed, cost of registration and balance of amount of Rs. 3,200/-. This shows that in paragraph 6 of the plaint the appellant has averred that after the execution of the agreement for sale, he sent a registered notice dated May 5, 1976 to Smt. Janabai to execute the sale-deed and again sent a notice dated March 13, 1978 to the respondents asking them to execute the sale-deed, meaning thereby that the appellant had been making efforts to have the sale-deed executed by issuing notices dated May 5, 1976 and March 13, 1978. Moreover, in paragraph 10 a specific averment has been made by the appellant that as per conditions in the deed of agreement for sale, he is willing to pay fees which is required for the sale-deed, cost of registration and the balance amount of Rs. 3,200/-. The said averments clearly contain a statement about the readiness and willingness on the part of the appellant to perform his part of the contract under the agreement for sale. 6. Apart from the said averments in the plaint, we find that the appellant, in his deposition before the court, has stated: I issued notice to heirs of Janabai to execute the sale deed. I was ready to pay remaining amount and act as per agreement. The defendants did not execute the sale deed as per notice. They replied my notice (Exh. 50). As defendants are not wiling to execute the sale deed I have filed this suit. I am ready to pay remaining amount immediately. I am ready to pay costs as per agreement. 7. Respondent No. 1 also in his deposition before the court, has stated: It is true that plaintiff was ready for sale-deed, but I was not ready. 8. In view of the aforesaid statements of the appellant and respondent No. 1 as well as the averments contained in paragraphs 6 and 10 of the plaint, it must be held that the appellant has not only averred, but has also proved that he was ready and willing to perform his part of the contract under the agreement for sale. In view of the aforesaid statements of the appellant and respondent No. 1 as well as the averments contained in paragraphs 6 and 10 of the plaint, it must be held that the appellant has not only averred, but has also proved that he was ready and willing to perform his part of the contract under the agreement for sale. The appellate court and the High Court were, therefore, in error in holding that the appellant had failed to comply with the requirements of Section 16(c) of the Specific Relief Act and the appellant must be held entitled to a decree for specific performance of the contract in the suit filed by him. We find that the possession of the land was delivered to the appellant in 1976 at the time of execution of the agreement for sale and he is in possession of the same and has been enjoying the same since then. Having regard to the depreciation in the value of the rupee during this period, we feel that the appellant should be required to pay a sum of Rs. 16,000/- in lieu of the balance amount of Rs. 3,200/- payable by him. 9. For the reasons aforementioned, the suit for specific performance filed by the appellant is decreed subject to the appellant depositing in the trial court a sum of Rs. 16,000/- along with the stamp duty and registration charges for the execution of the sale deed within a period of one month from the date of this judgment. The respondents shall execute the sale-deed in respect of the suit lands in favour of the appellant within one month of the deposit of the said amounts. In the event of the failure on the part of the appellant to deposit the said amounts within the period of one month, the judgment under appeal shall remain undisturbed. The appeal is disposed of accordingly. No order as to costs.” [Emphasis added] 15. Mr. Majumder, learned counsel appearing for the appellant has also placed his reliance on Sushil Kumar vs. Rakesh Kumar reported in AIR 2004 SC 230 which according to this court has no relevance in the present context particularly in view of the clear admission of the defendant No.1 that he entered in the agreement to sale in respect of the suit land. In apprehension that the court may resort to Section 20 of the Specific Relief Act, 1963 the appellant has relied on P. D’Souza vs. Shondrilo Naidu reported in (2004) 6 SCC 649 : AIR 2004 SC 4472 where it has been held that mere fact that the contract is onerous to the defendant or improvident in its nature would not constitute an unfair advantage within the meaning of Section 20(2). Moreover, no law in absolute terms has been laid down by the apex court to the effect that in all cases where there had been an escalation of prices, the court should either refuse to pass a decree for specific performance of contract or direct the plaintiff to pay a higher sum. In that case, the apex court rejected such defence and directed the specific performance of the contract by the appropriate decree on observing that there was due readiness and willingness of the plaintiff to perform his part of the contract. In a latter decision of the apex court in Man Kaur vs. Hartar Singh Sangha reported in (2010) 10 SCC 512 : 2010 AIR SCW 6198 the apex court has observed that the assumption that the readiness and willingness on the part of the plaintiff is something which need not be proved, if the plaintiff is able to establish that the defendant refused to execute the sale deed and thereby committed breach, is not correct. One example was cited in that report that where there is a contract for sale for consideration of Rs. 10 lakhs and the earnest money of Rs. 1 lakh was paid and the vendor wrongly refused to execute the sale deed, unless the purchaser is ready to pay Rs. 15 lakhs, in such case, there is a clear breach by the defendant. But in that case, if the plaintiff did not have the balance Rs. 9 lakhs and the money required for stamp duty and registration or the capacity to arrange and pay such money, when the contract had to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by the defendant, as he was not ‘ready and willing’ to perform his obligations. 16. 9 lakhs and the money required for stamp duty and registration or the capacity to arrange and pay such money, when the contract had to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by the defendant, as he was not ‘ready and willing’ to perform his obligations. 16. In a very recent decision, the apex court in M/s. Gian Chand & Brothers and Another vs. Rattan Lal @ Rattan Singh [judgment dated 08.01.2013] delivered in Civil Appeal No.130 of 2013 the apex court has enunciated the law. According to the said report, the evasive reply is no reply. Even the vague statement made by the witnesses cannot take place of the cogent evidence. This report has no relevance in the present context as it is not the case of the appellant that there was no adequate pleading by the defendants in refuting the allegations. On the contrary, the defendant No.1 by his written statement has categorically stated that the plaintiff did never approached him with balance amount and when he received the notice from the plaintiff after the stipulated time, he had clearly stated that he had no obligation and the plaintiff might take back his earnest money. The judgment of the Madras High Court in P. Lakshmi Ammal vs. S. Lakshmi Ammal and Others reported in AIR 1991 Mad 137 , it has been held that there must be specific denial to the averment as to readiness and willingness to perform the agreement by the plaintiff and if the reply is evasive and vague it has to presumed that the defendant who is supposed to perform, he has not specifically denied the allegations. There is no doubt that the onus of proof lies upon the party seeking to defeat the prior contract to adduce prima facie evidence that he is a bona fide transferee for value without notice. But, the burden is light and he may discharge it by merely denying the factum of notice on oath. In any case, very little evidence is required on his part to prove this fact which is negative [Arunachala Thevar and Others vs. Govindarajan Chettiar and Others reported in (1977) 2 MLJ 431 ]. Since emphasis has been given that the defendant did not categorically deny the readiness and willingness to perform their evidence is of little value. In any case, very little evidence is required on his part to prove this fact which is negative [Arunachala Thevar and Others vs. Govindarajan Chettiar and Others reported in (1977) 2 MLJ 431 ]. Since emphasis has been given that the defendant did not categorically deny the readiness and willingness to perform their evidence is of little value. The defendant No.1 in response to the averment has categorically stated that: “The plaintiff never met with the defendant nor offered the balance of Rs.2,36,250/- to the Defendant. The plaintiff could not arrange the said amount due to non-selling of his land at various places of Agartala/Teliamura during the agreement period, i.e. within 23.08.2004. Here mentioned is necessary that a “Bainapatra Deed” was executed on 11.07.2004 between the plaintiff. As per condition of the said Bainapatra the plaintiff to be [entitled] execution a sale deed within 23.08.2004, i.e. on or before force of ends of date of agreement dated 23.08.2004 (sic).” 17. The defendant No.1 has also denied in the para10 of the written statement that the plaintiff visited his house in the morning of 01.08.2004 with the rest of the consideration money or the plaintiff stayed back at his house for 3(three) hours or the plaintiff offered the defendant to accept the balance amount of Rs.2,36,250/-. The defendant has squarely denied that he met the plaintiff with one deed-writer [PW3] nor did request to accept the money on the mentioned time and place. He has reiterated in the written statement he offered to return the earnest money to the plaintiff. Since the judgment of the first appellate court is a judgment of reversal, this court considered it to be apposite to revisit the evidence for proper appreciation of the reasoning as provided by the trial court as well as by the first appellate court. Having considered the pleadings of the parties out of the five issues as were framed the following are the most vital: “2. Whether the plaintiff was ready and willing to pay the balance amount of the defendant within stipulated time as per term, if so, whether contract is enforceable in law. 3. Whether the defendant No.1 failed to execute the sale deed in terms of the agreement and whether the defendants failed to perform their part of contract after taking the balance amount from the plaintiff within the stipulated time.” 18. 3. Whether the defendant No.1 failed to execute the sale deed in terms of the agreement and whether the defendants failed to perform their part of contract after taking the balance amount from the plaintiff within the stipulated time.” 18. While framing the issue No.3, this court finds that the pleadings were not properly appreciated else the words ‘after taking the balance amount from the plaintiff’ the failure of executing the sale deed in terms of the agreement would not have entered in the said issue. Thus, the issue No.2 has become the final tool to determine the suit whether the plaintiff was ready and willing to pay the balance consideration money but the defendant No.1 by accepting the same failed to perform his obligation. The trial court has observed as under: “After considering the evidence of P.Ws and evidence of D.W.1, I further find the plaintiff was always ready and willing to pay up the balance consideration amount but the defendant was not taking the money and failed to discharge his obligation. After expiry of the terms of the contract the plaintiff also served notice through his lawyer with a request to get a sale deed registered in his favour but the defendant No.1 did not turn up rather on a false pretext fraudulently transferred the suit land by way of gift marked Exbt.A to his daughter, the defendant No.2 most illegally during subsistence of the contract between the plaintiff and defendant No.1 for which the gift deed marked Exbt.A is void ab initio. It is transparent from the evidence of P.Ws that for the fault of defendant No.1 who was not ready and willing to perform his part of obligation the sale deed could not be executed by the defendant No.1 after taking the balance amount from the plaintiff who was and is always ready and willing to comply his part of obligation. Hence, Plaintiff is entitled to get a sale deed registered in his favour in respect of the suit land and he is also entitled to cost from the defendant No.1. Hence, Plaintiff is entitled to get a sale deed registered in his favour in respect of the suit land and he is also entitled to cost from the defendant No.1. Hence, Issue No.2, 3,4 & 5 are decided in favour of the plaintiff.” Accordingly the suit was decreed directing the defendants to execute the sale deed in favour of the plaintiff on receiving the balance consideration money, failing which the right to enforce the contract after expiry of 3(three) months from the date of decree and to get the possession and the sale deed registered through the court on payment of balance consideration amount to the respondent No.1, shall be available to the plaintiff. 19. Being aggrieved by the said judgment, the defendant No.1 filed an appeal under Section 96 of the CPC being Title Appeal No.70 of 2006. The Addl. District Judge, Court No.4, West Tripura, Agartala dismissed the appeal by the impugned judgment dated 19.10.2012. The first appellate court however questioned the correctness of the findings as returned by the trial court on consideration of that finding. The first appellate court formulated two points for deciding the appeal: “1. Whether the plaintiff-respondent being the purchaser was ready and willing to perform essential terms of agreement for sale of the suit land to be performed by him. 2. Whether the Advocate’s Notice on behalf of the plaintiff-respondent dated 23.08.2004 was given upon the defendant-appellant no.1 to discharge his obligation as per terms of agreement for sale in question.” 20. There cannot be any amount of doubt that as per the agreement under reference [Exbt.3], the plaintiff was under obligation of making payment of the balance consideration money as stated within the stipulated date and of exhibiting his readiness and willingness to purchase. In Man Kaur vs. Hartar Singh Sangha reported in 2010 AIR SCW 6198 the apex court has laid down that: “To succeed in a suit for specific performance, the plaintiff has to prove: (a) that a valid agreement of sale was entered by the defendant in his favour and the terms thereof; (b) that the defendant committed breach of the contract; and (c) that he was always ready and willing to perform his part of the obligations in terms of the contract. If a plaintiff has to prove that he was always ready and willing to perform his part of the contract, that is, to perform his obligations in terms of the contract, necessarily he should step into the witness box and give evidence that he has all along been ready and willing to perform his part of the contract and subject himself to cross examination on that issue.” 21. In Man Kaur (supra), the apex court has also observed that the plaintiffs will be under obligation to provide proof of having money with him and he did purchase the stamp for purpose of preparation of the sale deed or at least he should show that he had inclination to buy or that he was fully ready to register the sale deed on a particular date. That apart, it has been observed in the para22 of Man Kaur (supra) that the plaintiff has to show that he attended his office of the Registrar/Sub-Registrar at the relevant area with full preparation for execution of the sale deed in his favour and about readiness and willingness to purchase the land under agreement even on the last date as stipulated in the agreement. However, the apex court in Aniglase Youhannan vs. Ramlatha and Others reported in AIR 2005 SC 3503 has observed as under: “S.16(c) of the Act mandates the plaintiff to aver in the plaint and establish as the fact by evidence allunde that he has always been ready and willing to perform his part of the contract. The basic principles behind S.16(c) read with Expln. (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. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief. In the present case, an agreement for sale was executed and the period during which the sale was to be completed was indicated to be six months. Undisputedly, immediately after the expiry of the six months period lawyer’s notice was given calling upon the appellant-defendant to execute the sale deed. In the present case, an agreement for sale was executed and the period during which the sale was to be completed was indicated to be six months. Undisputedly, immediately after the expiry of the six months period lawyer’s notice was given calling upon the appellant-defendant to execute the sale deed. It is also averred in the plaint that the plaintiff met the defendant several times and requested him to execute the sale deed. On finding inaction in his part, the suit for specific performance of contract was filed and there was clear averment in plaint that the plaintiff was always ready to get the sale deed prepared after paying necessary consideration and also that defendant is bound to execute the sale deed on receiving the balance amount and the plaintiff was entitled to get the document executed by the defendant. Held, order decreeing suit for specific performance in favour of plaintiff would be proper.” 22. The appellate court on re-appreciating the evidence came to a different finding, which is as under: “PWs in their examination-in-chief stated that respondent met the appellant no.1 on several occasions to give the payment of balance amount and to get the sale deed registered in his favour but the appellant no.1 (since deceased) was dragging the matter without taking the balance amount on various false pretext. It is also in evidence of the scribe (PW.3) that on one occasion on 20.08.2004 the respondent and his friend (PW.2) met the appellant no.1 (since deceased) in his house in the morning of 20th August, 2004 and requested to take the balance amount and to get the sale deed registered and asked them to stay in the Sub-Registry office on 20.08.2004 when he could appear to sign the sale deed for the purpose of registration after taking balance amount. Accordingly, the respondent with his friend (PW.2) Habul Ch. Dey and the scribe (PW.3) were present before the Sub-Registry Office on 20.08.2004 and were waiting with necessary stamp paper for the appellant no.1 (since deceased) for registration after paying the balance amount to the appellant no.1 but he did not turn up. Be that as it may, of course, appellant no.1 (since deceased) during his life time undoubtedly has committed the breach of agreement for sale. Be that as it may, of course, appellant no.1 (since deceased) during his life time undoubtedly has committed the breach of agreement for sale. Here, let me see the cross-examination of the PW.1 in his cross-examination admitted that he did not take Manindra Narayan Das, scribe (PW.3) for writing the sale deed. PW.1 also admitted that he paid Rs.20,000/- to PW.3 for purchasing stamp paper for the purpose of the registration of deed finally. But no stamp paper was purchased. It is also admitted that following the deed of agreement no draft of final purchased deed was prepared by the said deed-writer (PW.3). It is also admitted that he did not make any prayer for extension of time of agreement. PW.3 in his cross-examination has admitted that he prepared a draft deed for sale but it was not available with him. Respondent paid him Rs.20,000/- for purchasing stamp and for other cost but it was not purchased. Practically, if I compare the statement of PW.1 and PW.3 it will be clear that there is a contradiction about the preparation of draft of finally purchased deed. No such draft of deed has been adduced as evidence. PW.1 stated that no such draft of finally purchased deed was prepared by the said deed-writer (PW.3) whereas PW.3 admitted in cross-examination that he prepared the draft of finally purchased deed. In view of the above, it is crystal clear that the respondent was not ready and willing to discharge his obligation as per the terms and conditions of agreement (Exbt.3). Since the stamp paper was not purchased and no draft of finally purchased deed was prepared, how it can be said that on 20th August, 2004 as per their discussion made between the respondent and the appellant no.1 (since deceased), really the respondent was ready and willing to discharge his liability under agreement even on the last date of agreement i.e. 21.08.2004 corresponding to 1st week of Bhadra, 1411 B/S. Regarding second moot point, I have to discuss whether the Advocate’s notice was issued in time. The recital of agreement (Exbt.3) the sale was about to be executed by on or 1st week in the Bhadra, 1411 B/S corresponding to 21.08.2004 i.e. within third week of August. The spirit of the agreement was over on the expiry of 21st day of August, 2004. The recital of agreement (Exbt.3) the sale was about to be executed by on or 1st week in the Bhadra, 1411 B/S corresponding to 21.08.2004 i.e. within third week of August. The spirit of the agreement was over on the expiry of 21st day of August, 2004. Be that as it may the said Advocate’s notice dated 23.08.2004 was not in time it was not made within the stipulated period of agreement. The above discussed facts and circumstances, will lead to a irresistible conclusion that the impugned judgment and decree passed by the Learned Court below suffers from illegality and the same deserves interference of this Court and as such the same is liable to be set aside.” 23. Having scrutinized the records, this court finds that findings returned by the courts below on the aspects of the readiness and willing to purchase are not wholly supported by the evidence or the law so far it has been developed and reflected in the reports, as cited above. The finding returned by the trial court that most illegally, during subsistence of the contract between the plaintiff and defendant No.1, for which the gift deed marked Exbt.A was executed and hence is void ab initio and is wholly unsustainable for the simple reason that the gift deed was executed much after the expiry of the stipulated date. The question would be different if asked, whether on mere expiry of the stipulated date would absolve the defendant No.1 from his obligation as created under the said agreement [Exbt.3]. 24. The trial court on the basis of the oral evidence and the notice of the advocate, came to the conclusion that the plaintiff was ready and willing to pay up with the balance consideration amount but the defendant was not accepting the money and thereby failed to discharge his obligation. Per contra, the appellate court has observed that the plaintiff was not ready and willing to discharge his obligation in terms of the said agreement inasmuch as he did not purchase the stamp and no draft was prepared on 20.08.2004. As per the purported discussion made between the plaintiff and defendant No.1, the first appellate court has observed that the defendant No.1 was ready and willing to discharge his obligation on receiving the payment. As per the purported discussion made between the plaintiff and defendant No.1, the first appellate court has observed that the defendant No.1 was ready and willing to discharge his obligation on receiving the payment. The first appellate court has further observed that the agreement expired on 21.08.2004 and thereafter i.e. 23.08.2004, the advocate notice was issued. There is no fair discussions of the evidence coming to the said finding. That apart, the day of issuing the notice asking the defendant No.1 to execute the sale deed in terms of the agreement [Exbt.3], cannot have any relevance to prove the requirements of Section 16(c) of the Specific Relief Act, 1963. The notice was given to ask the defendant No.1 to discharge his obligation in terms of the agreement which he purportedly breached even after being approached with the remaining consideration money. In reply, however, the defendant No.1 has categorically stated that the plaintiff never approached him with consideration money. His wife, however, in the statement made in the trial court has stated that the plaintiff dishonestly included pathway within the land by severing the other land of the defendant No.1. After appreciating the evidence, which is equally balanced, it appears that how the plaintiff gathered the money to pay has not been stated to disclose source of the fund which is one of the important ingredients as enunciated by the apex court for getting the essential elements of readiness. But the oral testimonies at the same time cannot be straightway disbelieved. The oral statements of the parties are mutually destructive. The plaintiff’s version cannot be held to satisfy the standard of proof for the actions taken by the plaintiff, remain in some parts improbable. It would be appropriate not to pass a decree of specific performance mandating the defendants No.1 and 2 to execute the sale deed in respect of the suit land [Schedule-B of the plaint] in this context. It is clarified that the purchase of stamp paper or preparation of the draft sale deed may not be essential to prove readiness but on appreciation of the transaction that had taken place on 20.08.2004 it cannot be conclusively held that there was readiness for getting the sale deed registered as such. It is clarified that the purchase of stamp paper or preparation of the draft sale deed may not be essential to prove readiness but on appreciation of the transaction that had taken place on 20.08.2004 it cannot be conclusively held that there was readiness for getting the sale deed registered as such. But it would have been probable if by any chit of paper or evidence the plaintiff would have proved that he was with the money which he collected from a particular source. However, this court is not oblivious that PW2 has corroborated his case. 25. In this context, this court is not inclined to exercise the discretion by decreeing the suit for specific performance as the performance of the contract now would mean hardship to the defendants, whereas the nonperformance would involve no such hardship on the plaintiff if the earnest money what he paid to the defendant No.1 is returned with interest. Accordingly, the suit is dismissed. But the defendants, the respondents herein, are directed to return the earnest money i.e. Rs.52,000/- with interest @ 9% with effect from 11.07.2004 within a period of 3(three) months from today, else the plaintiff would be entitled to realise the said amount treating this order as the money decree. 26. Having held so, the appeal is dismissed, subject to what has been directed above and as consequence thereof, the suit is dismissed subject to the direction of repayment in the manner as above. Prepare the decree accordingly. Send down the LCRs thereafter.