JUDGMENT & ORDER : Heard Mr. P.K. Dhar, learned counsel and Mr. R. G. Chakraborty, learned counsel appearing for the appellant as well as Mr. R. Datta, learned counsel appearing for the respondents. 2. This is an appeal under Section 96 of the CPC from the judgment dated 16.07.2016 delivered in Title Suit No.30 of 2015 by the Civil Judge, Senior Division, West Tripura, Agartala, Court No.1. The suit was filed by the appellant for specific performance of contract vide the registered deed of agreement for sale under No.1-6575 dated 09.10.2013. The said agreement was entered between the plaintiff-appellant and one Sunil Chandra Dey in respect of the suit land as described in the schedule of the plaint measuring 2 gandas and 2 karas comprised in Khatian No.686, Plot No.3389 of Mouja-Charipara under West Tripura district. 3. It has been clearly provided in the said agreement that on receiving the remainder of the consideration money which, according to the plaintiff-appellant is Rs.50,000/- as he had paid Rs.8,00,000/- as the earnest money at the time of execution of agreement, Sunil Chandra Dey, who expired in the year 2014 should execute the sale deed. The stipulated time for payment of the remainder was one year. After death of Sunil Chandra Dey, his legal heirs neither paid the said earnest money back to the plaintiff-appellant nor came forward to execute the sale-deed. But a further agreement in continuation was executed, at the instance of the plaintiff-appellant, between the plaintiff-appellant and the legal heirs of Sunil Chandra Dey, since deceased on 09.10.2014 clearly providing that they are agreeable to sell the suit land @ Rs.8,50,000/- and out of which a sum of Rs.8,00,000/- has already been received by their predecessor. But the defendant-respondents did act in accordance with the paid agreement. 4. After receipt of the summon from the court, the defendant-respondents did not appear to contest the suit and as such the suit proceeded ex-parte. The plaintiff introduced their evidence both oral and documentary. The plaintiff-appellant has examined himself as PW-1 and narrated the plaint-case. But the defendant-respondents did act in accordance with the paid agreement. 4. After receipt of the summon from the court, the defendant-respondents did not appear to contest the suit and as such the suit proceeded ex-parte. The plaintiff introduced their evidence both oral and documentary. The plaintiff-appellant has examined himself as PW-1 and narrated the plaint-case. He had introduced the said registered deed of agreement to sale being No.1-6575 dated 09.10.2013 [Exbt-1], the notice for execution of the sale-deed on receiving the payment of Rs.50,000/- [the remainder of the consideration money] dated 09.09.2014 [Exbt.3], the notice dated 29.09.2014 [Exbt.4], the notice dated 05.02.2015 upon the defendant-respondents [Exbt.5 series] and the deed between the plaintiff-appellant and the respondents dated 09.10.2014. 5. Having appreciated the rival pleadings, the trial court formulated the following issues for deciding the suit: 1. Has the predecessor-in-interest of the defendant and the defendant entered into the agreement for sale dated 09.10.2013 and the agreement for sale dated 09.10.2014, respectively with the plaintiff to sell the suit property? 2. Are the averments in respect of performance of, or readiness and willingness to perform, the contract according to its true construction sufficient to enforce the Specific Performance as sought for? 3. Is the plaintiff entitled to the decree as prayed for? 4. To what relief/reliefs in the plaintiff entitled? 6. Finally, the trial court has observed that the agreement for sale in question was not duly proved. The oral evidence adduced on affidavit containing, inter alia, that the plaintiff and the predecessor of the defendants had entered into an agreement for sale is insufficient to prove the agreement for sale in question. Therefore, in absence of proof of the alleged agreement for sale, the trial court found it not in a position to hold that the defendants entered into an agreement for sale to sell the suit property. It has been further observed that the plaint was in-adequate as the statement in terms of Section 16(c) of the Specific Relief Act was not part of the pleading. It has been further observed that the plaint was in-adequate as the statement in terms of Section 16(c) of the Specific Relief Act was not part of the pleading. Section 16(c) of the Specific Relief Act reads as under: “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.” According to the trial court the explanation below Section 16(c) makes it mandatory to record in the plaint the plaintiff’s readiness and willingness to perform according to its true construction. Having observed thus, the suit was dismissed. Being aggrieved by the said judgment dated 16.07.2016, this appeal has been filed by the plaintiff. 7. Mr. P.K. Dhar, learned counsel appearing for the appellant has submitted that the finding as returned by the trial court is wholly perverse inasmuch as when the factual aspect of the execution of the agreement to sale or agreement relating to the receipt of the earnest money was not contested by the defendants, not even the service of the notice has been disputed by them by filing the written statement, those factual aspects should not have been questioned by the court. Moreover, so far the interpretation of Section-67 of the Evidence Act is concerned, that is also, according to Mr. Dhar, learned counsel, is contrary to the provisions of law. Section-67 of the Evidence Act unambiguously provides that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of the document as is alleged to be in that person’s handwriting, shall be proved to be in his handwriting. This requirement has been duly observed by PW-1, the plaintiff while testifying in the trial. He has clearly stated that the original deed of agreement for sale in between himself and Sunil Chandra Dey was entered and simultaneously registered in the sub-registry office, Sadar, Agartala, West Tripura vide No.1-6575 dated 09.10.2013. 8. On the basis of the said statement, by the order dated 08.03.2016, the trial court has clearly stated as follows: “The witness in attendance is examined as Pw.1. The witness has proved the documents namely…. 8. On the basis of the said statement, by the order dated 08.03.2016, the trial court has clearly stated as follows: “The witness in attendance is examined as Pw.1. The witness has proved the documents namely…. Plaintiffs evidence stands closed.” On scrutiny of the records, it is found that the documents are duly marked by the court below. But the said order dated 08.03.2016 has been left incomplete. In the order, the documents as admitted in the evidence were not catalogued. It appears from the records that the registered deed No.1-6575 has been marked as Exbt.1 and due signature has been put by the Trial Judge with its official seal. All the documents were similarly marked. 9. The most interesting thing that revealed in the scrutiny is that the counsel engaged by the defendant-respondents were present all through but he did not raise any objection, in respect of admission of those documents. It is further revealed that the defendant-respondents did not even file the written statement. 10. Mr. Dhar, learned counsel appearing for the appellant has further submitted that on cumulative reading of the evidence particularly of the notice as admitted in the evidence it will be apparent that the plaintiff was willing and ready to perform his part but it is the defendants who did not execute the sale-deed after death of their father in pursuance to the subsequent deed [Exbt.2]. 11. Mr. R. Datta, learned counsel while supporting the impugned judgment has submitted that both the deeds, Exbt.1 and Exbt.2, have not been admitted in the evidence in accordance. Therefore, the face of execution of agreement has not been proved, inasmuch as in terms of Section-67 of the Indian Evidence Act the agreements were not introduced in the evidence. That apart, Mr. Datta, learned counsel has submitted that the trial court has correctly dismissed the suit as the mandatory requirement of Section-16(c) of the Specific Relief Act was not complied by the plaintiff. The first part of Section-16(c) of the said Act is that, that in the plaint there must be a categorical averment in respect of willingness and readiness to perform the part of the person who seeks the performance of the said agreement. 12. Mr. Datta, learned counsel has taken the court through the pleading to demonstrate that there is no such averment. Mr. 12. Mr. Datta, learned counsel has taken the court through the pleading to demonstrate that there is no such averment. Mr. Datta, in support of his contention has referred a decision of the apex court in J. Samuel and Others vs. Gattu Mahesh and Others reported in (2012) 2 SCC 300 , where the apex court has observed as follows: “(9) Before proceeding further, it is also useful to refer Section 16(c) of Specific Relief Act which reads as under: "16. Personal bars to relief.- Specific performance of a contract cannot be enforced in favour of a person- (a) xxx (b) xxx (c) 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. Explanation.- For the purposes of clause (c),- (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction." It is clear that in a suit for specific performance of a contract, unless there is a specific averment that he has performed or has always been ready and willing to perform the essential terms of the contract, the suit filed by him is liable to be dismissed. In other words, in the absence of the above said claim that he is always ready and willing to perform his part of the contract, the decree for specific performance cannot be granted by the Court.” [Emphasis added] 13. The following two points therefore emerge for decision of this court: (i) Whether the defendant-respondents can now raise any objection regarding the admissibility of the documents particularly the deeds [Exbt.1 and 2] at this stage or whether the documents as admitted were admitted in compliance of the provision of Section-67 of the Indian Evidence Act? and (ii) Whether the finding of the trial court that for non-compliance of Section 16(c) of the Specific Relief Act, the suit is liable to be dismissed, is tenable or not? 14. and (ii) Whether the finding of the trial court that for non-compliance of Section 16(c) of the Specific Relief Act, the suit is liable to be dismissed, is tenable or not? 14. So far the admission of the documents are concerned, this court is constrained to observe that the defendant-respondents being represented by their counsel all through when did not raise any objection at the time of admission and these documents are admissible under law, inasmuch as the original documents are produced by the plaintiff-appellant, the defendant-respondents are now restrained to raise any objection. Moreover, in the considered view of this court that the requirement of Section-67 of Evidence Act has been duly complied at the time of admitting the documents of the plaintiff and hence the finding in this regard by the trial court is not sustainable in law and accordingly the same is interfered with and set aside. But the finding as returned by the trial court that the suit is not maintainable for absence of the specific averment in the plaint to meet the requirement of Section-16(c) of the Specific Relief Act, 1963 is correct exposition of law as extracted above and as such no interference in this regard is required. Hence, the suit has been rightly dismissed by not allowing the specific performance of the contract. Now the question is, whether the plaintiff-appellant can get the refund of the earnest money that had paid to the predecessor of the defendants. 15. There is no provision in the said deeds [Exbt.1 and 2] or any clause that if the deed was not executed, the entire earnest money shall be forfeited in favour of the owner of the land. In absence of such provision, and to avert unjust enrichment, this court in exercise of its power conferred by Section-20 of the Specific Relief Act is inclined to exercise its discretion by directing the defendants to refund the earnest money of Rs.8,00,000/- as recorded in the agreement to sale under No.1-6575 dated 09.10.2013 [Exbt.1] within a period of 3(three) months from the date of the decree. On failure of payment, the appellant may recover the said amount through the process of the court. The appeal stands partly allowed. Prepare the decree accordingly. Send down the LCRs thereafter.