JUDGMENT : The remedy of specific performance of an agreement or contract is hypostased solely on the principles of equity and the plaintiff seeking it has to plead and establish three cardinal prerequisites on his side ? the Three Musketeers, so to say ? Ready, Willing and Able. Of these, readiness and ability, most of the times go hand in hand; while willingness is, generally, reflected from conduct. 2. It sometimes is that even when the plaintiff may show the readiness ? which includes his financial ability ? Courts still may be justified in not granting specific performance if he is found to have been not willing to perform his part of the contract. As the Hon'ble supreme Court, has, through a catena of judgments, elucidated, 'readiness and ability' are to be normally established through evidence; while 'willingness is to be adjudged with respect to conduct of parties and attendant circumstances. 3. The afore concepts have great relevance in this case, as will be revealed from the involved facts. 4. The defendant in O.S.No.151 of 2007 on the files of the Sub Court, Ernakulam has filed this appeal assailing the judgment and decree of the said Court, dated 13.07.2009, as per which, specific performance of an agreement, marked in evidence as Ext.A1, has been granted in favour of the plaintiff, who is the respondent herein. 5. According to the appellant, it was his specific case before the Trial Court that the respondent/plaintiff was never ready and willing to perform his part of the contract and that he did not have the means and resources to pay the balance of the sale consideration as per Ext.A1 agreement. 6. The appellant asserts that even though the evidence on record clearly establishes that the plaintiff had no means or resources to pay the balance sale consideration and that he had, at no point of time, tendered the same, apart from making bald offers, the Trial Court has decreed the suit finding that it was he who had violated the terms of the contract, by not being ready to execute the sale deed. The appellant asserts that the afore findings of the Trial Court are contrary to the pleadings on record and the documentary and oral evidence presented during trial of the suit. On such basis, the appellant prays that this appeal be allowed and the impugned judgment and decree be set aside. 7. The appellant asserts that the afore findings of the Trial Court are contrary to the pleadings on record and the documentary and oral evidence presented during trial of the suit. On such basis, the appellant prays that this appeal be allowed and the impugned judgment and decree be set aside. 7. I have heard Sri.Martin Jose, learned counsel appearing for the appellant and Sri.P.M.Joshi, learned counsel appearing for the respondent. 8. Sri.Martin Jose, learned counsel for the appellant, made his submissions in tune with the afore narration of facts, but added that his client had done everything as per Ext.A1 agreement, including measurement of the plaint schedule property as also the obtention of all necessary documents, including the Encumbrance Certificate; but that the plaintiff had refused to pay the balance sale consideration, however, conceding that his client had received Rs.1,51,000/-as advance at the time when Ext.A1 sale agreement had been entered into. He says that Ext.A1 was executed on 02.09.2006, with the sale consideration being fixed at Rs.10,75,000/-for 2.27 Ares of land and a two stored building thereon; and that the period for performance of the same was fixed as being six months. He says that within this period, his client had performed all the requirements under the agreement, as has already been stated above, and therefore, that since the plaintiff did not tender the balance sale consideration at any point of time, his client could not execute the sale deed; and, consequently, that the Trial Court could not have decreed the suit. 9. Sri.Martin Jose, adds to the above contentions by saying that even though in the written statement, his client had taken a specific plea that the plaintiff had no means or resources to pay the balance sale consideration and though the plaintiff was specifically asked, while he was examined as PW1, about his means, no document or material had been produced by him even thereafter, to establish to the contrary. Sri.Martin Jose, thus asserts that the plea of his client, that the plaintiff had no means or resources to pay the balance sale consideration, has been well established and demonstrated beyond doubt; and resultantly, that the Trial Court ought not to have decreed the suit, especially under the ambit of Section 20 of the Specific Relief Act, as it stood then. He thus reiteratingly prays that this appeal be allowed. 10. He thus reiteratingly prays that this appeal be allowed. 10. Sri.P.M.Joshi, learned counsel appearing for the respondent/plaintiff refuted the afore submissions of Sri.Martin Jose by showing that the evidence on record would make it manifest that his client had always been ready and willing to pay the balance sale consideration, which is indubitable from the fact that he had issued Ext.A2 Advocate's notice on 23.02.2007, which is well within the time fixed in Ext.A1 agreement for performance of the contract. He says that his client had issued this notice after he approached the Police with a written complaint that the appellant/defendant is not executing the sale deed in spite of the fact that the time fixed in Ext.A1 is to expire soon, which he says is evident from Ext.A5 copy of the statement given by the appellant/defendant before the S.I of Police, Mulamthuruthy on 21.02.2007. He then asserts that this statement clearly shows that the appellant/defendant was not ready to perform his part of the agreement; and therefore, that the court below was wholly without error in having decreed the suit and in directing the defendant to execute the sale deed with respect to the plaint schedule property, after accepting the balance sale consideration. 11. Sri.P.M.Joshi adds to the above, that since the appellant/defendant did not comply with these directions in the decree, his client applied to the Trial Court for depositing the balance sale consideration on 07.10.2009, but that before he could do so, this appeal had been filed and an interim stay of the impugned judgment and decree was obtained by the appellant from this Court on 11.11.2009. He says that the said judgment and decree cannot, therefore, be found to be vitiated or to be in error in any manner and prays that this appeal be dismissed. 12. I have considered the afore submissions and have also intentently gone through the evidence and documents available on record. 13. As is clear from the proceedings of the Trial Court, the respondent/plaintiff as PW1 and the appellant/defendant as DW1, along with two other witnesses, namely DW2 and DW3, had been examined; while Exts.A1 to A5 on the part of the plaintiff and Exts.B1 to B3 on the part of the defendant have been marked. 14. 13. As is clear from the proceedings of the Trial Court, the respondent/plaintiff as PW1 and the appellant/defendant as DW1, along with two other witnesses, namely DW2 and DW3, had been examined; while Exts.A1 to A5 on the part of the plaintiff and Exts.B1 to B3 on the part of the defendant have been marked. 14. The plaintiff, as PW1, in his chief examination testified in tune with the averments in the plaint, adding that he has been always willing and ready to tender the balance sale consideration to the defendant. In cross examination, pointed questions were put to him as to his means and resources to pay the balance sale consideration, to which he answered by saying that he was running a Jewellery shop from the year 2004, earning a monthly income of Rs.35,000/-and that he had filed income tax returns from the assessment year prior. He also said that he had a balance of Rs.9,24,000/-in his bank account and that in addition to this, he is also in possession of gold. 15. However, it is pertinent that no document had been produced by the respondent/plaintiff in substantiation of his afore assertions even though it was repeatedly put to him during cross examination that what he was asserting is not correct and that he did not have the means to pay the balance sale consideration. This is relevant, through may not be fatal, because the specific case of the appellant/defendant, through out the case, including in his written statement, was that though he was willing to execute the sale deed, the plaintiff did not have the money nor did he tender the balance sale consideration at any time, thus incapacitating him from executing the sale deed. Of course, the appellant/defendant also impelled a case that the plaintiff has also not honoured an alleged subsequent oral agreement between them, that he will pay Rs.2,50,000/-on or before 02.10.2006, which the Trial Court did not find to be credible. 16. Be that as it may, the sum total of the deposition of PW1 shows that he vehemently maintains that he had the money to pay the balance sale consideration and that there was a balance of Rs.9,45,000/-in his bank account, along with gold. In contrast, the defendant was specific in his contention that these assertions were not correct, which was also pleaded in the written statement. In contrast, the defendant was specific in his contention that these assertions were not correct, which was also pleaded in the written statement. However, apart from confronting PW1 in cross examination, the defendant did not move the Trial Court for orders directing the plaintiff to produce documents to show his capacity to pay the balance sale consideration, nor was any attempt made by him under Section 16(c) of the Specific Relief Act to make the plaintiff deposit the same before Court. 17. This is crucial because, as has been declared by the Hon'ble Supreme Court in Azhar Sultana v. B.Rajamani and Others ( (2009) 17 SCC 27 ), it is not necessary that the plaintiff must keep ready the entire amount of consideration or must file proof of the same, unless he is specially called upon to do so by the court. 18. Further, in Boramma v. Krishna Gowda and Others ( (2000) 9 SCC 214 ) the Hon'ble Supreme Court has spoken on tendering of the balance consideration by the plaintiff, referring to the explanation to Clause (c) of Section 16 of the Specific Relief Act, declaring that “where a contract involves 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”. 19. Obviously, therefore, an adverse inference of inability of the plaintiff in performing his part of the contract till the time the suit was filed could not have been recorded by the Trial Court. However, I notice from the impugned judgment and decree that such an inference has been drawn by the said Court and to that extent I cannot find favour. 20. That so said, before I proceed, it is essential that I must keep in mind the difference between the concepts of 'readiness to perform the contract' and 'willingness to perform the contract'. The difference between these two have been succinctly spoken about by the Hon'ble Supreme Court in His holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar [ 1996 (4) SCC 526 ], which is discussed in paragraph 2 thereof. It deserves a full reading and is, for such purpose, reproduced as under: “There is a distinction between readiness to perform the contract and willingness to perform the contract. It deserves a full reading and is, for such purpose, reproduced as under: “There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinized. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, the has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the execution of the agreement, i.e., by 27.02.1975. The draft sale deed was not returned after being duly approved by the petitioner. The factum of readiness and willingness to perform plaintiff's part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready nor had the capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bide for the time which disentitles him as time is of the essence of the contract.” 21. When I move on with the evaluation and assessment of the dialectical claims in this case, I must certainly keep in mind certain other vital circumstances and factual factors before a conclusive view is taken on the specific issues involved. 22. Admittedly, as per the impugned decree, the respondent/plaintiff was directed to tender the balance sale consideration within a period of 30 days from its date to the defendant and the latter was then directed to execute the sale deed, after measuring the property; and to hand over its prior title deeds, along with an Encumbrance Certificate, sketch and plan prepared through a competent Surveyor. The decree clearly stipulates that if the appellant/defendant disobeyed this direction for 30 days from the date of the judgment, namely, 13.07.2009, the plaintiff was at liberty to deposit the balance sale consideration of Rs.9,24,000/-and to get the sale deed executed through the process of law. 23. Sri.P.M.Joshi, the learned counsel for the respondent/plaintiff, admits that the impugned judgment and decree were delivered on 13.07.2009 and therefore, that his client ought to have tendered the balance sale consideration at least by the 12.08.2009. He then, unequivocally concedes that his client did not do so and that he waited until 16.09.2009, allegedly till he obtained a copy of the decree and that, thereafter, on 17.09.2009, he issued a notice to the appellant/defendant offering to tender the balance sale consideration. He adds that his client waited for another 20 days and then made an application before the Trial Court on 07.10.2009 to remit the balance consideration, but that before he could do so, on 11.11.2009, this Court granted an interim order staying the decree. 24. When I hear Sri.P.M.Joshi as afore, it becomes adrem that even after the respondent/plaintiff asserts that he had made an application before the Court below on 07.10.2009, offering to deposit the balance sale consideration, he did not do so until 11.11.2009, which is more than one month thereafter; on which date, this Court granted an interim stay in this appeal. 25. The afore factors certainly have a bearing on this case because, had the defendant/respondent been in possession of the requisite funds at least on the date of the decree, he would have tendered the balance sale consideration to the defendant within a period of 30 days from its date, as has been ordered therein and would not have taken a plea that he was waiting for the certified copy of decree to be received on 16.09.2009. 26. 26. In any event of the matter, since the decree makes it clear that the respondent has to tender the balance sale consideration within a period of one month from its date, namely 13.07.2009 and since he concedes that he did not seek any modification of the same, it was certainly up to him to tender the balance sale consideration to the appellant/defendant within the time frame so granted; and in the absence of the same having been done, it becomes justified for this Court to draw an adverse inference as to his ability and willingness to pay the same. This is fortified by the fact that he did not approach the Trial Court with an application to deposit the money for nearly 20 days after he admits he received the copy of the impugned judgment and decree; and even thereafter, did not do so till 11.11.2009, when this Court granted stay of the judgment and decree assailed in this appeal. 27. The totality of all these factual factors guide me to the irresistible impression that the respondent/plaintiff had never been serious in tendering the balance sale consideration, which is manifest from the fact that he refused to do so even after the decree. 28. Added to the above, at the time when the Trial court delivered the judgment, it is without contest that Section 20 of the Specific Relief Act -prior to its amendment in the year 2008 ? held the field. Under the mandate of the said provision, the said Court had a duty to examine whether it was bound to grant specific performance because, at that time, this was certainly a discretionary relief. A learned Division Bench of this Court in Antony K.O and Another v. M.K. Krishnankutty Menoki and Others [ 2017 (1) KHC 479 ] has spoken on this issue affirmatively, which is available from paragraph No.11 of the said judgment, which, for ease of reference, is extracted below: “It says that the Court is not bound to grant specific performance as it is a discretionary one even though it is lawful to do so. It further states that the discretion has to be exercised in a sound and reasonable manner and it should be the one capable of correction by an Appellate Court. It further states that the discretion has to be exercised in a sound and reasonable manner and it should be the one capable of correction by an Appellate Court. The various expressions embodied under Section 20 of the Specific Relief Act would show that the Court is not bound to grant a decree for specific performance, even though it was found to be lawful to do so and the Court has to exercise its discretion. The question at what time the Court has to exercise its discretion is also well evident from a mere reading of S.20 of the Specific Relief Act, which would arise only after finding that it is lawful to grant the relief sought for in favour of the plaintiff. In a other provisions of law wherein discretion could be exercised stands for exercising discretion in a positive way for granting some relief to the parties and not for refusing any relief. But, the discretionary power incorporated and embodied under S.20 stands on a different footing in which the court has to exercise discretion not for granting the relief, but for refusing the same. It has got its own character and peculiarity, apart from other provisions contained in other laws for the time being in force. So, the real impact of S.20 should be and must be understood under the background of those aspects. It is a mandate upon the Court to address the question of exercise of discretion before granting or refusing a decree for specific performance and it has to be exercised only after finding that it is lawful to grant a relief of specific performance in favour of the plaintiff. A decree which was granted without addressing and without exercising the discretion under S.20 of the said Act is bad in law. The Court is duty bound to address the question of exercise of discretion under S.20 of the Specific Relief Act while granting or refusing to grant a decree of specific performance. The said discretion has to be exercised only after finding that it is lawful to grant the relief prayed for in suit in favour of the plaintiff. In the present case in hand, that question is not considered or answered. So the impugned decree is bad in law due to non-compliance of requirement under S.20 of the Specific Relief Act.” 29. In the present case in hand, that question is not considered or answered. So the impugned decree is bad in law due to non-compliance of requirement under S.20 of the Specific Relief Act.” 29. In the case at hand, the impugned judgment and decree do not show that the mandate of Section 20 had even been adverted to by the Trial Court, but it proceeded to allow the suit, granting specific performance of the agreement, merely on the basis of the oral assertion of the plaintiff that he had the resources to pay the balance sale consideration and that he was willing to tender it at all times, as had been averred by him in the plaint. Even though Section 20 has now been substituted in the year 2018, the rigour of the requirements under the earlier provisions certainly was applicable to the Trial Court at the when time the impugned judgment and decree were issued; and the fact that it did not even consider the same certainly cuts at the root of its validity. 30. That being so said, I am fully aware that the contention of Sri.P.M.Joshi is that since Section 20 has now been substituted, it should be presumed to have been so from the inception and therefore, that the impugned judgment and decree may not be set aside on this ground alone. Though I cannot approve this contention, the Trial Court being not aware that the said Section would be amended or substituted in the future, I do not propose to set aside the impugned judgment and decree on this ground, but am only pointing out that the said Court could not have disregarded the mandate of Section 20, as is stood then. 31. There is a further aspect in the impugned judgment which I must specifically deal with. Pertinently, the evidence of DW1, who is the appellant herein, has been found by the Trial Court to be 'sheer nonsense' and it has also concluded that his deposition shows that 'he is a person with scant respect for truth'. However, when I examine the deposition of DW1, apart from the fact that he has made certain assertions regarding his mother's health ? which according to him was the exigency that prompted him to execute Ext.A1 agreement ? However, when I examine the deposition of DW1, apart from the fact that he has made certain assertions regarding his mother's health ? which according to him was the exigency that prompted him to execute Ext.A1 agreement ? his testimony cannot be found to be inconsistent, except with respect to a pointed question on Ext.A5 -which is the statement that he gave before the Police Authorities -wherein, he says that he is willing to execute the document in favour of the plaintiff; but in court he stated that he did not intend to do so and that the statements in Ext.A5 were not made by him with the intention of honouring it. I am afraid that this, by itself, could not have led the Trial Court to conclude that the testimony of DW1 is 'sheer nonsense' or that 'he is a person with scant respect of the law' because, as is now well recognized, a defendant is entitled to take several defences and to lead evidence in support of them, which then is for the Court to assess to discover the ultimate truth. I cannot, therefore, approve the above observations of the Trial Court with respect to DW1; and for that reason also, I am of the view that the impugned judgment and decree require to be intervened with. 32. Since this Court is unable to find sufficient cause having been demonstrated by the plaintiff in substantiation of his assertion that he was willing and had the means to pay the balance sale consideration, certainly, the question of grant of specific performance of Ext.A1 becomes totally untenable. 33. However, when I go through the plaint, it is evident that the plaintiff had also sought an alternative plea for return of the advance sale consideration, along with 25% interest from the date of agreement till realization of the amount. 34. At this stage, it is relevant that Sri.Martin Jose, learned counsel for the appellant, submits that even if the plea for return of advance sale consideration had not been urged by the respondent/plaintiff, his client would not have stood in the way of this Court granting it; however, praying that the rate of interest be fixed by this Court in terms of the settled principles of law. 35. 35. Since the appellant does not stand in the way of the alternative plea being granted to the respondent, I deem that it will be justified for this Court to allow this appeal, vacating the conclusions and directions of the Trial Court granting specific performance of Ext.A1 agreement; however, decreeing the suit as regards the advance sale consideration. I am also of the considered view that the award of interest at the rate of 10% per annum from the date of agreement till the date of realization will be sufficient to protect the respondent/defendant because, going by the fact that the agreement was entered as early as on 02.09.2006, this would certainly provide sufficient succor to him. In the result, this appeal is allowed in part, with the impugned judgment and decree being set aside; and the suit is decreed in part, allowing the plaintiff to recover an amount of Rs.1,51,000/-, along with proportionate costs and 10% interest per annum on the said sum, from the date of Ext.A1, namely 02.09.2006, till the date of realization from the defendant and his assets, for which purpose, a charge over the plaint schedule property is hereby granted under the provisions of Section 55(6) (b) of the Transfer of Property Act. This appeal is thus disposed of.