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2017 DIGILAW 1234 (MAD)

D. Vasanthi v. P. Rajalakshmi

2017-04-25

N.SATHISH KUMAR

body2017
JUDGMENT : Aggrieved over the decree and judgment of the learned trial judge decreeing the suit for specific performance, the present appeal came to be filed by the 1st defendant. 2. For the sake of convenience, the parties are referred to, as per their ranking before the trial Court. 3. The brief facts of the case of the plaintiff are as follows: (i) The 1st defendant, being the owner of the suit property, entered into an agreement on 24.3.2006 for sale of the suit property for a total sale consideration of Rs.14,50,000/- and on the date of the agreement, a sum of Rs.50,000/- was paid to the 1st defendant as advance. The time fixed for completion of sale transaction is three months. At the time of execution of the aforesaid agreement, the suit property was under mortgage with the 2nd defendant and the 1st defendant agreed to discharge the same before the registration of Sale Deed and if she failed to do so, it was agreed that the plaintiff shall discharge the same out of the balance sale consideration. On 24.4.2006, the 1st defendant requested the plaintiff to pay a sum of Rs.1,00,000/- as further advance and the same was also paid by the plaintiff. In that regard, an additional agreement of sale was entered between the parties on the said date. (ii) According to the plaintiff, on 10.6.2006, she paid further sum of Rs.6,000/-. The plaintiff had agreed to purchase the suit property by availing housing loan from the State Bank of Mysore. Therefore, immediately, after entering into the agreement, she made an application for housing loan for purchase of the suit property. The said Bank also provisionally sanctioned the loan in favour of the plaintiff for a sum of Rs.10,00,000/-. The remaining sale consideration has been arranged by the plaintiff well before the expiry of the period stipulated in the agreement of sale. As the 1st defendant did not took any steps to discharge the subsisting mortgage, the plaintiff requested the 1st defendant to discharge the mortgage so as to enable her to produce the original before the Bank and to avail the loan and thereby complete the sale transaction. Despite the request made by the plaintiff to the 1st defendant, to at least authorise her to pay the mortgage debts out of sale consideration to the 2nd defendant, the 1st defendant refused to do so. Despite the request made by the plaintiff to the 1st defendant, to at least authorise her to pay the mortgage debts out of sale consideration to the 2nd defendant, the 1st defendant refused to do so. Therefore, she issued a legal notice on 14.7.2006 and the same was also received and reply was issued by the defendant on 21.7.2006 with false allegation that the plaintiff is taking steps to sell the suit property into 3rd parties in breach of the agreement of sale entered into between the parties. The plaintiff is always ready and willing to discharge the subsisting mortgage availed by the 1st defendant from the 2nd defendant. Hence, the suit. 4. The brief averments made in the written statement filed by the 1st defendant are as follows: (i) Admitting the agreement for sale, it is the contention of the 1st defendant that she availed mortgage loan from the 2nd defendant and since the 2nd defendant has been periodically threatened her to bring the property to private sale by exercising power under Section 68 of the Transfer of Property Act, she decided to sell the property to the plaintiff for a total consideration of Rs.14,50,000/-. She had also appraised the plaintiff and her husband about the urgent need of money to discharge the mortgage deed in order to avoid periodical threats of auction sale of the same at the instance of the 2nd defendant. The 1st defendant had impressed upon the plaintiff that if she is prepared to purchase the property within the time frame of three months she is willing to sell the property in her favour for the said price. (ii) Only in that circumstances, the agreement of sale was executed on 24.3.2006 and advance of Rs.50,000/- was received by the 1st defendant. In fact, the plaintiff, her husband and their Advocate were taken to the office of the 2nd defendant for inspection of title deeds relating to the property available with them and the plaintiff's advocate expressed satisfaction about the defendant's title. When the plaintiff wanted photocopy of the title deeds, the 2nd defendant insisted that unless some amount is paid towards the subsisting mortgage debt, such particulars will not be furnished. Only in such circumstances, the plaintiff paid a sum of Rs. When the plaintiff wanted photocopy of the title deeds, the 2nd defendant insisted that unless some amount is paid towards the subsisting mortgage debt, such particulars will not be furnished. Only in such circumstances, the plaintiff paid a sum of Rs. 1,00,000/- on 24.4.2006 to the 2nd defendant on behalf of the 1st defendant and obtained photocopy of the title deeds from the 2nd defendant. The 1st defendant was under the fond hope that the plaintiff will complete the sale transaction within the time of three months as specifically stipulated in the agreement by paying the balance sale consideration. (iii) The plaintiff never revealed that she has raised a bank loan and only after such sanction of loan, she will be able to make payment towards the sale price. It is agreed between the parties that the plaintiff will discharge the mortgage on behalf of the 1st defendant. The plaintiff, her husband and their advocate were taken to the office of the 2nd defendant to ascertain the actual amount due under the subsisting mortgage, which was also furnished to them. The plaintiff, however, could not make the payment of balance sale consideration within the stipulated time, which resulted in paying further interest to the 2nd defendant for 3 more months amounting to Rs.16,500/- by the 1st defendant. A sum of Rs.6,000/- was paid by the plaintiff on 10.6.2000. Further, on 24.4.2006, a sum of Rs.1,00,000/ was paid towards further advance. (iv) The plaintiff wanted one more month to complete the sale transaction as she could not mobilise the funds. The plaintiff reluctantly agreed for the same and under the said additional agreement of sale, three months time from that date was specifically incorporated to complete the sale transaction. It is also mentioned in the said agreement that the time is the essence of the contract. Despite such extension of time granted, the plaintiff is unable to complete the sale transaction for obvious reasons. In the meantime, the 2nd defendant was bringing the suit property for sale frequently and each time the plaintiff had to make payments to the 2nd defendant to avoid such auction sale. Only in such circumstances, the plaintiff paid further sum of Rs.6,000/- on 10.06.2006, particularly, when the 1st defendant insisted that unless some amount is paid the proposed auction sale cannot be avoided at the instance of the 2nd defendant. Only in such circumstances, the plaintiff paid further sum of Rs.6,000/- on 10.06.2006, particularly, when the 1st defendant insisted that unless some amount is paid the proposed auction sale cannot be avoided at the instance of the 2nd defendant. Since the plaintiff has not come forward to perform her part of obligation within the period agreed by her, the 1st defendant cancelled the agreement in the reply notice dated 21.07.2006. Hence, the 1st defendant prayed for dismissal of the suit. 5. Based on the above pleadings, the trial Court formulated as many as four issues for consideration. They are: 1. Whether the suit agreement to sell dated 24.03.2006 is a genuine one and accordingly, enforceable as per law? 2. Whether the plaintiff has been ready and willing to perform her part of the contract and if so, whether the first defendant had committed default? 3. Whether the plaintiff is entitled to specific performance as prayed for? 4. To what relief? 6. On the side of the plaintiff, the husband of the plaintiff was examined as PW1 and Exs. A1 to A9 were marked. On the side of the defendants, 1st defendant examined herself as D.W.1 and one M.Dilli, was examined as D.W.2 and Exs. B1 to B7 were marked. 7. The learned trial Judge, after analysing the entire evidence and the documents, decreed the suit for specific performance. Aggrieved over the same, the present appeal came to be filed. 8. The learned counsel appearing for the appellant/ 1st defendant vehemently contended that the agreement was entered by the 1st defendant only to save the properties from being auctioned in the public auction since the same was mortgaged with the 2nd defendant. Only on such circumstances, specific time of three months was originally agreed between the parties. As the plaintiff could not mobilise the fund, time was extended further by one month by way of supplementary agreement dated 24.4.2006. It is submitted by the learned counsel that despite the extension of time by one month, the plaintiff did not mobilise funds to clear the mortgage loan obtained by the 1st defendant from the 2nd defendant. 9. As the plaintiff could not mobilise the fund, time was extended further by one month by way of supplementary agreement dated 24.4.2006. It is submitted by the learned counsel that despite the extension of time by one month, the plaintiff did not mobilise funds to clear the mortgage loan obtained by the 1st defendant from the 2nd defendant. 9. It is the further contention of the learned counsel for the appellant/1st defendant that at the time of agreement, it was never whispered by the plaintiff about the loan applied by her to purchase the suit property and only for the first time, after expiry of three months period agreed between the parties, she has expressed about the loan applied by her from the Bank. It is submitted that for the first time, the plaintiff had issued legal notice just 10 days prior to the expiry of the agreement contending that she is ready to complete the sale transaction. But no amount whatsoever was mobilised by the plaintiff at the relevant point of time. It is further submitted that the specific time agreed between the parties has not been adhered to by the plaintiff and that there was a breach on the part of the plaintiff. Therefore, the defendant had issued reply notice on 21.7.2006 even cancelling the agreement. 10. It is the submission of the learned counsel for the appellant/1st defendant that when the suit in C.S.No.747 of 2006 has been filed before the Court, the plaintiff has taken out an application being A.No.4089 of 2006 seeking permission to clear the mortgage dues payable to the 2nd defendant and after obtaining permission from the Court, she has paid mortgaged amount during the pendency of the aforesaid suit. Even thereafter, the plaintiff has not chosen to pay the remaining sale consideration. In the entire plaint pleadings, there is no reference with regard to balance sale consideration. The plaintiff did not have ready cash and she only applied for loan. That itself clearly shows that she has not performed her part of contract as agreed in the two agreements. It is also the submission of the learned counsel that when the property itself was agreed to be sold only in order to save them from the public auction being conducted by the 2nd defendant, the 1st defendant cannot endlessly wait for the plaintiff to mobilise the funds. It is also the submission of the learned counsel that when the property itself was agreed to be sold only in order to save them from the public auction being conducted by the 2nd defendant, the 1st defendant cannot endlessly wait for the plaintiff to mobilise the funds. Hence, it is submitted that ready and willingness has not at all been established by the plaintiff. 11. It is submitted by the learned counsel that on the date of the suit, a sum of Rs.12,00,000/- was payable by the plaintiff and it has caused much hardship to the 1st defendant, since she has to pay interest to the mortgagor regularly for the mortgage loan availed by her. Hence, it is submitted that the plaintiff, who failed to prove the readiness and willingness and has not performed her part of the contract within the specific time agreed between the parties, cannot seek equitable relief. It is also the contention of the learned counsel that subsequent to the decree passed in the suit, the plaintiff claims to have deposited amount into bank but that itself cannot be a ground to infer ready and willingness. The ready and willingness must be in existence from the very inception of the agreement. Hence, the learned counsel for the appellant/1st defendant prayed for allowing the appeal. 12. Countering the arguments advanced by the learned counsel for the appellant/1st defendant, the learned counsel for the 1st respondent/plaintiff submitted that in the agreement executed by the 1st defendant in Ex.A2, there is a specific clause to the effect that the 1st defendant has to discharge the mortgage loan. As the 1st defendant has failed to discharge the mortgage loan, the plaintiff has requested the 1st defendant to authorise her to pay the mortgage amount to the 2nd defendant. But the 1st defendant did not authorise the plaintiff to discharge the said loan to the 2nd defendant. The evidence of D.W.1 and D.W.2 would clearly show that they never authorised the plaintiff to pay the mortgage amount to the Bank. These facts clearly show that the plaintiff was always ready and willing to purchase the property. 13. The learned counsel for the 1st respondent/plaintiff further submitted that the plaintiff, in fact, has applied housing loan for purchase of the suit property and that the Bank also provisionally sanctioned the loan under Ex.A4. These facts clearly show that the plaintiff was always ready and willing to purchase the property. 13. The learned counsel for the 1st respondent/plaintiff further submitted that the plaintiff, in fact, has applied housing loan for purchase of the suit property and that the Bank also provisionally sanctioned the loan under Ex.A4. Immediately, the plaintiff sent a legal notice expressing her willingness to clear the mortgage amount to the 2nd defendant and also to pay the remaining sale consideration. But the 1st defendant did not come forward to honour the said agreement. It is the further contention of the learned counsel that the plaintiff has issued first notice expressing willingness within the time period as agreed in the agreement. The plaintiff also paid some amount to save the property from being auctioned in public action by the 2nd defendant. The documents filed on the side of the plaintiff would clearly show that the plaintiff is always ready and willing to perform her part of the contract,. Hence, the learned counsel for the plaintiff submitted that the judgment and decree of the trial Court is well balanced and it does not require any interference. 14. It is the submission of the learned counsel that during the pendency of the instant appeal, the plaintiff has taken out a petition, being MP.No.1 of 2015, for reception of the additional documents, such as, notice sent by the plaintiff on 05.9.2012, i.e. after the judgment and decree passed by the learned trial Judge, enclosing the cheque for the balance sale consideration, reply sent by the defendant on 14.9.2012, Central Bank Pass Book of the plaintiff and deposit receipts issued by Central Bank of India on 15.2.2013, 23.8.2013 and 16.2.215, and prayed for allowing the documents to establish that the plaintiff was always ready and willingness to perform her part of the contract. 15. In the light of the above submissions, the points that arise for consideration in this appeal are: (1) Whether the documents sought to be filed in the appeal stage shall be received as evidence ? (2) Whether the plaintiff was always ready and willing to perform her part of the contract from the beginning of the contract? (3) Whether the time agreed between the parties was the essence of the contract? (4) Whether the plaintiff is entitled to specific performance? (5) To what relief? Point No. 1 16. (2) Whether the plaintiff was always ready and willing to perform her part of the contract from the beginning of the contract? (3) Whether the time agreed between the parties was the essence of the contract? (4) Whether the plaintiff is entitled to specific performance? (5) To what relief? Point No. 1 16. Though the plaintiff has filed an application under Order 41 Rule 27 of CPC for reception of documents, such as, notice sent by the plaintiff on 05.9.2012, i.e. subsequent to the decreeing of suit, enclosing a copy of the cheque dated 08.9.2012 for a sum of Rs.7,41,000/- towards the balance sale consideration, reply sent by the 1st defendant, pass book of the year 2012 and deposits said to be made by the plaintiff in the year 2013, it is to be noted that filing additional documents in the appeal stage is not a matter of right and only if the conditions set out in Order 41 Rule 27, more particularly, clause (aa) and (b) have been fullfiled, the same could be received as additional documents. The documents now sought to be filed before this Court are subsequent to the suit only and hence those documents will not in any way helpful to both sides for advancing their case with regard to ready and willingness etc., Therefore, those documents cannot be given any importance at this stage. Further, those documents are not at all relevant for determining the issues involved in this suit. 17. Admittedly, the issues involved in the suit are only with regard to ready and willingness; whether the time was the essence of the contract or there was any breach of contract between the parties. Therefore, subsequent communication by the plaintiffs, after disposal of the suit, to show her readiness will not in any way helpful to her. It is well settled that ready and willingness must be present continuously from very inception and not in a piecemeal manner. Therefore, this Court is of the view that the documents sought to be filed in the appeal stage, cannot be received as evidence other than the conditions laid down under Order 41 Rule 27 of CPC. Hence, MP.No.1 of 2015 filed for reception of additional documents is dismissed. Point Nos.2 to 5 18. Therefore, this Court is of the view that the documents sought to be filed in the appeal stage, cannot be received as evidence other than the conditions laid down under Order 41 Rule 27 of CPC. Hence, MP.No.1 of 2015 filed for reception of additional documents is dismissed. Point Nos.2 to 5 18. The suit has been laid by the plaintiff for enforcement of the contract entered into between the plaintiff and the 1st defendant on 24.3.2006. The execution of the agreement is not disputed by the 1st defendant. The only contention of the 1st defendant is that since she has already availed loan by mortgaging the suit property from the 2nd defendant and as the property has been repeatedly brought for public auction, only in order to save the property from public auction, she has agreed to sell the property to the plaintiff for a total consideration of Rs.14,50,000/- provided the plaintiff completes the sale transaction within the period of three months. 19. It is also not disputed by the parties that subsequent to Ex.A2, sale agreement dated 24.3.2006, supplementary agreement was also entered into between them, after receipt of further advance amount of Rs.1,00,000/- and time was also extended by one month. In clause 7 of Ex.A2, original agreement entered into between the parties on 24.3.2006, the parties have specifically agreed as follows: (7) The vendor further covenants with the purchaser that she will clear all the subsisting mortgage dues before the Registration of the sale deed or the purchaser may clear mortgage dues and other public dues, rates or taxes due to the Public authorities, from and out of the sale consideration.” From the above recital, it is clear that if the 1st defendant failed to clear the mortgage dues, the plaintiff has a right to clear the same from and out the balance sale consideration. From Ex.A2, it is clear that the suit property has already been mortgaged with the 2nd defendant and the same was put on notice to the plaintiff and that the parties have specifically agreed to complete the transaction within three months from the date of agreement. From Ex.A2, it is clear that the suit property has already been mortgaged with the 2nd defendant and the same was put on notice to the plaintiff and that the parties have specifically agreed to complete the transaction within three months from the date of agreement. It is also admitted by both sides that on 24.4.2006, i.e., within one month from the date of the first agreement dated 24.3.2006, an additional amount of Rs.1,00,000/- was paid by the plaintiff towards sale consideration and that the time was also extended by three months from the date of the second agreement. 20. From the reading of both the agreements, it is clear that the parties, in fact, intended to make the time as essence of the contract and they agreed to complete the sale on or before 24.7.2006. The total sale consideration agreed between the parties is Rs.14,50,000/-. It is also not in dispute that a sum of Rs.6,000/- was also received by the 1st defendant on 10.06.2006 towards sale consideration. It is the contention of the plaintiff that she was always ready and willing to purchase the property and she has also made arrangements to avail bank loan. Since, the 1st defendant, despite the plaintiff's request to authorise her to pay the mortgage loan to the 2nd defendant, did not authorise her, she sent a legal notice dated 14.07.2006. 21. In this regard, it is the specific contention of the 1st defendant that she was never appraised by the plaintiff at the time of agreement that only after availing bank loan, she could mobilise the funds and complete the transaction. It is the further contention of the 1st defendant that, after executing the agreement, Ex.A2, the plaintiff's husband and their advocate were taken to the office of the 2nd defendant and they satisfied themselves with regard to the title and they were also appraised of the loan amount payable to the 2nd defendant. Only when the plaintiff insisted for photocopy of the title deeds, the 2nd defendant demanded some amount to be paid towards mortgage for obtaining photocopy of the said documents. Only in such circumstances, the plaintiff has advanced a sum of Rs.1,00,000/- on 24.4.2006 to the 2nd defendant on behalf of the 1st defendant and obtained photocopy of the title deeds from the 2nd defendant. Only on that date, the 2nd agreement was also executed by them. 22. Only in such circumstances, the plaintiff has advanced a sum of Rs.1,00,000/- on 24.4.2006 to the 2nd defendant on behalf of the 1st defendant and obtained photocopy of the title deeds from the 2nd defendant. Only on that date, the 2nd agreement was also executed by them. 22. It is the specific plea of the 1st defendant that when the plaintiff insisted photocopy of title deeds from the Bank, where the property was mortgaged, i.e. the 2nd defendant, only at the instance of the 2nd defendant, some amount was paid to the 2nd defendant Bank by the plaintiff to obtain photocopy of the title deeds. This consistent plea has been taken by the 1st defendant from the very beginning. Even in the reply notice sent by the 1st defendant in Ex. A6, the same stand has been taken by the 1st defendant. 23. Similarly, when the entire evidence of D.W.1 in this regard is carefully perused, it is seen that the aforesaid fact has been spoken by D.W.1. In the Chief examination, she has clearly narrated under what circumstances the second agreement, Ex.A3, came to be executed and the advance amount of Rs.1,00,000/- was paid to the 2nd defendant and how the photocopy of the documents were obtained by the plaintiff. It is also stated by D.W.1 that a sum of Rs. 6,000/- was paid by the plaintiff on 10.6.2000 only to avoid public auction of the suit properties by the 2nd defendant. 24. The evidence of D.W.1 with regard to the payment of Rs.1,00,000/- to the Bank for obtaining photocopy has also not even been denied in her cross examination. These facts would clearly show that the property has already been mortgaged with the 2nd defendant and that the 2nd defendant had taken steps to bring the properties in public auction. Besides, the plaintiff was also informed about the balance amount payable to the 2nd defendant towards mortgage loan on 24.4.2006 itself. In fact, the plaintiff has obtained some photocopy of the documents and the same has not been denied by her. These facts would clearly indicate that the plaintiff has obtained such photocopy only in order to avail loan from the Bank. 25. Though Ex.A4 was filed to show that, provisionally, a sum of Rs.10,00,000/- was sanctioned by the State Bank of Mysore. These facts would clearly indicate that the plaintiff has obtained such photocopy only in order to avail loan from the Bank. 25. Though Ex.A4 was filed to show that, provisionally, a sum of Rs.10,00,000/- was sanctioned by the State Bank of Mysore. When Ex.A4 is carefully perused, it is seen that the same is only a certificate issued by the Manager, State Bank of Mysore. To substantiate the said certificate, author of the same has not been examined. Be that as it may, Ex.A4 would only indicate that the Bank has provisionally agreed to sanction a sum of Rs.10,00,000/-. In fact, the Bank has categorically stated that a sum of Rs.10,00,000/- towards housing loan in respect of purchase of house at door No. 1, Sivapadam Street, Kennedy Square, Perambur, Chennai - 600 0011, will be sanctioned subject to the execution of documents and completion of formalities. This letter was issued on 10.7.2006, i.e. just two weeks prior to the expiry of the time as agreed between the parties to pay the sale consideration. As stated above, Ex.A4, in fact, clearly shows that an amount of Rs.10,00,000/- would be sanctioned only after execution of the documents and completion of formalities. 26. Admittedly, in this case, original documents were already with the 2nd defendant. Only after redeeming mortgage and taking back the title deeds from the 2nd defendant, the plaintiff would have executed the documents as required by the bank for sanction of the loan. But the provisional sanction itself is made on 10.7.2006. Therefore, the contention of the plaintiff that the Bank has already sanctioned loan for a sum of Rs.10,00,000/- and that she has arranged the remaining amount to clear the mortgage debt is highly improbable and the same cannot be accepted. 27. It is pertinent to point out that from the very beginning, the 1st defendant had taken a consistent stand that after execution of agreement Ex.A2, the husband of the plaintiff and her advocate were taken to the office of the 2nd defendant on 24.4.2006 and that they obtained photocopy of the documents after paying a sum of Rs.1,00,000/- to the 2nd defendant. These facts would clearly show that the plaintiff is aware of the balance amount payable to the 2nd defendant. These facts would clearly show that the plaintiff is aware of the balance amount payable to the 2nd defendant. When the above particular fact is taken into consideration, the contention of the plaintiff that the 1st defendant did not authorise her to clear the mortgage debt cannot be countenanced at all. 28. As already stated above, in Ex.A2, there is a specific clause agreed between the parties that the purchaser may also clear the mortgage loan from and out of sale consideration if the vendor failed to clear the same. Having agreed so, the plaintiff ought to have taken some steps to pay the mortgage amount in order to complete the sale transaction within the specified period of three months. There is no evidence to show that the plaintiff had, in fact, ready money to clear the mortgage amount of Rs. 5,53,000/- after their visit to the 2nd defendant's office on 24.4.2006. It is not the case of the plaintiff that while entering into the agreement, she had an intention to avail Bank loan to purchase the suit property. This factum of availing the bank loan has been pleaded only for the first time in the plaint. Ex.A5 legal notice was issued by the plaintiff on 14.07.2006, i.e. just two weeks prior to the expiry of the date agreed between the parties to complete the sale transaction. Even in Ex.A5, legal notice, it has not even been stated that the plaintiff has applied Bank loan and the Bank loan is also ready. If really the Bank has sanctioned loan as per Ex.A4, dated 10.7.2006, nothing prevented the plaintiff from mentioning the same in Ex.A5. Whereas, Ex. A5 is totally silent about the alleged sanction of loan by the Bank. Ex. A5, legal notice issued on 14.7.2004, proceeded as if the 1st defendant did not take any steps to clear the dues payable to the 2nd defendant. It is also stated that in spite of the plaintiff's request to authorise her to discharge loan, she has not taken any steps. 29. It is to be noted that the agreement itself was entered by the 1st defendant when she was in economic duress and in adversity to save property from public auction. Therefore, expecting the 1st defendant to clear the mortgage loan by herself without getting further sale consideration from the plaintiff is against the normal human conduct. 29. It is to be noted that the agreement itself was entered by the 1st defendant when she was in economic duress and in adversity to save property from public auction. Therefore, expecting the 1st defendant to clear the mortgage loan by herself without getting further sale consideration from the plaintiff is against the normal human conduct. Having agreed to complete the sale within three months specifically, it is for the plaintiff to establish the fact that apart from applying loan, she had ready money with her and she was able to discharge the mortgage amount of Rs.5,53,000/- at the relevant period. But no evidence is forthcoming on the particular aspects. Ex.A5 was replied by the defendant wherein she has explained the circumstances under which contract was executed. Only in the rejoinder sent by the plaintiff on 24.7.2006 under Ex.A7, for the first time, it is pleaded by the plaintiff that the State Bank of Mysore has sanctioned loan and the Bank has called for authorisation letter in favour of the plaintiff authorising her to discharge loan obtained by the 1st defendant from the 2nd defendant. But the so called authorisation called for by the Bank, which allegedly sanctioned loan, has not seen the light of the day. 30. Reply sent by the 1st defendant under Ex.A8 would also clearly show that after obtaining photocopy of the title deeds on 24.4.2006, the plaintiff has, in fact, assured that she will discharge the mortgage loan but without doing so, she has approached the Bank for loan and has been postponing to discharge of the mortgage loan. This fact would also clearly show that having obtained photocopy on 24.4.20016, the plaintiff did not take any steps to discharge the mortgage loan of Rs.5,53,000/-to the 2nd defendant. Whereas she applied for housing loan for which provisional sanction said to have been made only on 10.7.2006 under Ex.A4. Even assuming that provisional sanction has been made, the bank would have called for the original documents at that point of time. Therefore, the above facts clearly indicate that the plaintiff did not have any sufficient money to pay the mortgage within the time agreed between them. 31. Exs.B1 to B3 would clearly show that the suit properties were brought for public auction from the year 2004 itself. Therefore, the above facts clearly indicate that the plaintiff did not have any sufficient money to pay the mortgage within the time agreed between them. 31. Exs.B1 to B3 would clearly show that the suit properties were brought for public auction from the year 2004 itself. Ex.B4 shows that the 2nd defendant also sent official letter to the 1st defendant stating the exact amount payable to them up to July 2006. Though the plaintiff, who was put on notice about the aforesaid mortgage, had agreed to pay the sale consideration within three months i.e. on or before 24.7.2006, she failed to establish the fact that she had ready money with her at the relevant point of time and the 1st defendant is wilfully evading the performance of the contract. Had the plaintiff established the capacity to mobilise the funds within three months as agreed in the agreement, then it could be stated that the 1st defendant has breached the contract. Whereas, having known the mortgage, the plaintiff did not take any steps to pay the balance sale consideration to clear the mortgage within the agreed period. Even in the first notice sent by the plaintiff on 14.7.2006, the alleged sanction of loan by the banker is silent. Only in the subsequent reply notice, the same has been pleaded by the plaintiff. The provisional sanction is not a original sanction and the same is subject to certain formalities to be fulfilled by the plaintiff. At the relevant point of time, the plaintiff did not have ready money to pay the sale consideration. 32. It is the evidence of D.W.1 that since the plaintiff did not pay the amount in time, she had to pay interest regularly to the mortgagor which caused much hardship her. It is further to be noted that though the suit for specific performance was filed on 28.09.2006, the plaintiff has not deposited the remaining sale consideration till date. Whereas she has filed an application seeking permission of this Court to pay the mortgage loan to the 2nd defendant. Pursuant to the order of this Court in Application No.4089 of 2006 in C.S.No.747 of 2006, a sum of Rs.5,53,000/- was paid by the plaintiff. But the remaining amount of sale consideration has not been deposited. Of course, deposit of the remaining sale consideration is not a sine qua non for maintaining the suit for specific performance. Pursuant to the order of this Court in Application No.4089 of 2006 in C.S.No.747 of 2006, a sum of Rs.5,53,000/- was paid by the plaintiff. But the remaining amount of sale consideration has not been deposited. Of course, deposit of the remaining sale consideration is not a sine qua non for maintaining the suit for specific performance. Had he deposited the amount, it would be helpful to infer readiness and willingness from the inception. The remaining balance sale consideration has also not been deposited before this Court. Even during trial, the plaintiff has not chosen to pay the remaining sale consideration and she has come forward to pay the same only during the pendency of the appeal. 33. It appears that he has sent a cheque for a sum of Rs. 7,41,000/- to the 1st defendant, that too, after one month from the date of decree of the suit and the same has been returned by the 1st defendant. It is the contention of the learned counsel that the plaintiff has deposited the amount in the 1st defendant's bank amount in the year 2013. It is to be noted that the agreement was entered in the year 2006. The plaintiff, having put on notice about the mortgage and also agreed to clear the mortgage within three months, has not paid the amount and simply filed the suit. Except paying a sum of Rs.5,53,000/- on 16.10.2006, pursuant to the order of this Court, towards the mortgage amount and another sum of Rs.1,56,000/- towards advance, the plaintiff has not even paid half of the sale consideration in all these days. 34. If the mortgage amount has been paid within the agreed time and entire sale consideration has also been paid to the 1st defendant in the year 2006, it would have been a benefit for the 1st defendant at the relevant point of time. Now, after a lapse of more than 10 years, paying the remaining sale consideration, one cannot contend that the plaintiff was always ready and willing to perform her part of the contract. Readiness and willingness must be present from the very beginning till the end. Now, after a lapse of more than 10 years, paying the remaining sale consideration, one cannot contend that the plaintiff was always ready and willing to perform her part of the contract. Readiness and willingness must be present from the very beginning till the end. Only for the purpose of the suit and to establish the rival contention before the Court, any evidence in respect of the particular aspect is developed or created at a later point of time, that itself will not be a ground to infer ready and willingness. In fact, till 14.07.2006, just two weeks prior to the agreed time, there was nothing on record to show that the plaintiff had, in fact, the capacity to pay the entire sale consideration, besides, redeeming the mortgage loan obtained by the 1st defendant. The relief of specific performance, which is equity relief, cannot be extended to the person, who failed to prove ready and willingness from the very beginning. 35. That apart, the plaintiff has also not been examined. Of course her husband has been examined as P.W.1. Though in the chief examination, he has reiterated the plaint pleadings, when the cross examination is carefully perused, it is seen that he was also aware of the nature of the amount payable to the 2nd defendant mortgagor. Though he would contend that he has also approached the 2nd defendant to pay the entire sale amount within the agreed time, such evidence has not been substantiated. Therefore, when the plaintiff has failed to establish her ready and willingness, the subsequent payment to the bank that too, only at the instance of the Court order, ready and willingness of the plaintiff cannot be inferred. The plaintiff has not proved ready and willingness from the very inception. Particularly, the subsequent conduct of the plaintiff in not paying the entire amount even after ten years of the agreement, also certainly, disentitle her from equitable relief. Of course, the plaintiff has paid a sum of Rs. 5,53,000/- to the 2nd defendant Bank as per the order of this Court and also paid a sum of Rs.1,50,000/- towards mortgage as per the agreements, A2 and A3. Of course, the plaintiff has paid a sum of Rs. 5,53,000/- to the 2nd defendant Bank as per the order of this Court and also paid a sum of Rs.1,50,000/- towards mortgage as per the agreements, A2 and A3. Even though no relief has been claimed for return of advance amount, this Court is of the view that ends of justice would be met if the 1st defendant is directed to refund the advance amount of Rs.1,56,000/- to the plaintiff along with the amount of Rs.5,53,000/- which has been paid towards mortgage. These points are answered accordingly. In the result, the appeal is partly allowed. The appellant/1st defendant is directed to refund the total amount of Rs.7,09,000/- with interest at the rate of 7.5% from the date of respective payments till the date of realisation. Till the amount is fully realised by the plaintiff/1st respondent, there shall be a charge over the suit property for the aforesaid sum. However, there shall be no order as to costs. Consequently, connected MP.No.1 of 2012 is closed.