JUDGMENT : (Prayer: Appeal filed under Section 100 of the CPC against the Judgment and Decree passed in A.S.No.23 of 2017 dated 22.12.2017 on the file of the Mahila Court (Additional Incharge, Sessions cum District Judge), Tiruvannamalai, confirming the Judgment and Decree dated 21.11.2012 in O.S.No.5 of 2011 on the file of the Principal Sub Court, Tiruvannamalai.) 1. The defendant is the appellant before this Court. The parties are referred to in the same litigative rank as before the Trial Court. The Second Appeal arises out of a suit O.S.No.5 of 2011 filed by the plaintiff on the file of the Principal Subordinate Court, Tiruvannamalai for specific performance of an agreement of sale dated 28.10.2009 or in the alternate to pay a sum of Rs.4,57,200/- with subsequent interest of 12% to the plaintiff till realisation. It is necessary to briefly allude to the facts in order to appreciate the challenge to the Judgment and Decree by the defendant. Plaintiff’s case: 2. The suit schedule property admittedly belongs to the defendant. The defendant had purchased the property from one Velauthammal under a registered sale deed dated 19.03.1996. After the purchase, the defendant has been residing in the said property as its absolute owner. Thereafter, the defendant was in urgent need of funds and she decided to alienate the suit property. Consequently, the plaintiff come to know about this offer of the defendant and had entered into negotiation with the defendant and agreed to purchase the property for a total sale consideration of Rs.4,10,000/-. The negotiations were reduced into writing in the form of an agreement of sale dated 28.10.2009. On the date of the agreement, a sum of Rs.4,00,000/- was paid and balance amount of Rs.10,000/- was to be paid within a period of two years from the date of the agreement. 3. It is the case of the plaintiff that he was ready and willing to proceed with the sale from the date of the agreement. He has also submitted that on the date of the sale agreement the defendant had handed over the original sale deed dated 19.03.1996. Despite repeated requests the defendant did not come forward to execute the sale deed. This constrained the plaintiff to issue a legal notice dated 29.11.2010, which was received by the defendant on 03.12.2010. However, the defendant did not come forward to execute the sale deed. Despite repeated requests the defendant did not come forward to execute the sale deed. This constrained the plaintiff to issue a legal notice dated 29.11.2010, which was received by the defendant on 03.12.2010. However, the defendant did not come forward to execute the sale deed. Therefore, left with no other alternative the plaintiff was constrained to file the suit. Defendant’s case: 4. The defendant had filed a detailed written statement denying that she had agreed to sell the property to the plaintiff. It is her case that the plaintiff was managing the Mini Bus owned by his mother-in-law one Razia Begum, wife of K.M.Yusuf. The plaintiff who was working as a School Teacher found it very difficult to continue to operate the bus, he therefore, proposed to lease or sell the bus. One R.Murugan, who was well known to the defendant and who was working as a conductor in the bus decided to purchase the same and he conveyed his willingness to the plaintiff. The plaintiff agreed to sell the mini bus for a sum of Rs.3,60,000/-. The bus was also handed over to the said R.Murugan on 10.07.2009. Meanwhile, on 13.10.2009, the mini bus met with an accident, in which the bus had not only sustained damages but a third party claim was also made against his mother-in-law. 5. The plaintiff therefore insisted upon the said R.Murugan to offer a property as a security. R.Murugan who is well known to the defendant convinced the defendant and her son C.Murugan to stand surety for him. The defendant and her son were brought to the Registrar Office. Believing the words of R.Murugan the defendant and her son, C.Murugan had executed the documents indicated by the said R.Murugan. They were not informed that it was a sale agreement. 6. The defendant would further submit that in the first week of November 2010 her son C.Murugan had received a registered letter dated 07.10.2010 from Raziabegum, the mother-in-law of the plaintiff stating that the mini bus had been sold by her to the defendant’s son for a sum of Rs.3,60,000/- and that the bus was also handed over to him on 10.07.2009 at Kilpennathur Village. Thereafter, the bus met with an accident on 13.10.2009 and that one Maduraiveeran had filed MCOP case against Raziabegum and for which summons was issued by the Court asking her to appear on 08.11.2010. Thereafter, the bus met with an accident on 13.10.2009 and that one Maduraiveeran had filed MCOP case against Raziabegum and for which summons was issued by the Court asking her to appear on 08.11.2010. She had enclosed the summons and requested C.Murugan to appear before the Court. At the same time, the defendant had received the legal notice from the plaintiff asking them to execute the sale deed and they immediately contacted R.Murugan at whose behest the defendant had signed the security. The said R.Murugan requested and convinced the defendant not to approach the Police Authorities saying that he would settle the matter quickly. 7. However, contrary to the assurance to settle the matter R.Murugan had not resolved this claim of the plaintiff. The defendant had lodged a complaint with the District Superintendent of Police, Tiruvannamalai on 27.05.2011 against the plaintiff and R.Murugan. The complaint was forwarded to the town DSP, Tiruvannamalai. The defendant had participated in the enquiry but however the plaintiff and R.Murugan did not participate in the proceedings. Meanwhile, the plaintiff had applied for an anticipatory bail and got it. The defendant would contend that they did not receive a single penny as an advance under this alleged agreement dated 28.10.2009. The agreement of sale being illegal it could not be enforced. They therefore sought to have it dismissed. Trial Court and Lower Appellate Court: 8. The Trial Court had formulated the following issues: “TAMIL” 9. Ultimately, the Trial Court on appreciating the evidence decreed the suit. 10. Challenging the said Judgment and Decree, the defendant had filed A.S.No.23 of 2017 on the file of the Mahila Court (Additional Incharge, Sessions cum District Court), Tiruvannamalai. The Appellate Court also confirmed the Judgment and Decree of the Trial Court. Challenging the said Judgment and Decree the defendant has filed the above Second Appeal. Substantial Questions of law : 11. When the above Second Appeal came up for admission notice was ordered to the plaintiff by order dated 07.03.2019. After the plaintiff had entered appearance the matter has been listed before the Court for hearing. 12. After hearing the arguments, it appears that the following substantial questions of law arise for consideration: (a) Whether the agreement of sale Ex.A.1 was intended as a security as contended by the defendant? After the plaintiff had entered appearance the matter has been listed before the Court for hearing. 12. After hearing the arguments, it appears that the following substantial questions of law arise for consideration: (a) Whether the agreement of sale Ex.A.1 was intended as a security as contended by the defendant? (b) Whether the plaintiff has proved his readiness and willingness as contemplated under Section 16 (c) of the Specific Relief Act? Submissions : 13. Mr.R.Rajarajan, learned counsel appearing for the defendant/appellant would submit that the agreement of sale had been executed by the defendant not with an intent to sell the property but only as a security for the sale of mini bus belonging to the mother-in-law of the plaintiff in favour of one R.Murugan, when the said bus had met with an accident. 14. The learned counsel would submit that although the defendant had taken a defense that the agreement was only a security for the transaction stated supra, the plaintiff did not chose to examine his mother-in-law. He would submit that both the Trial Court as well as the Appellate Court has failed to appreciate the documents filed by the defendant in support of the above contention. He would submit that Ex.B.5 was a statement given by the mother-in-law of the plaintiff before the Police authorities wherein she would submit that she had handed over the bus to the plaintiff on 28.10.2009, thereafter, the defendant and her son had come to her place to purchase her vehicle. They had handed over a sum of Rs.3,60,000/- as against the consideration fixed at Rs.7,00,000/- and on the same day a delivery letter was obtained. However, no delivery letter has been filed by the plaintiff. He would further argue that this is contrary to the letter dated 07.10.2009 issued by Razia Begum and marked as Ex.B.2. 15. The learned counsel would therefore submit that the above document would clearly prove the case of the defendant that there was a transaction for the sale of mini bus. He would submit that the Appellate Court had totally misconceived the defense and has rejected the same on grounds not even pleaded by the plaintiff. 16. According to the learned counsel, the Appellate Court has not independently considered the documents and being the final Court of fact the Appellate Court has totally failed to exercise jurisdiction vested on it. He would submit that the Appellate Court had totally misconceived the defense and has rejected the same on grounds not even pleaded by the plaintiff. 16. According to the learned counsel, the Appellate Court has not independently considered the documents and being the final Court of fact the Appellate Court has totally failed to exercise jurisdiction vested on it. The learned counsel would further submit that the agreement of sale was executed on 28.10.2009 and though the 99% of alleged sale consideration had been paid the fact that the balance of Rs.10,000/- was kept back and a two year period given to complete the sale would clearly indicate that the agreement of sale was not intended to be for a sale but only as a security. Legal notice was issued only a year later which would once again show that the agreement was not an agreement of sale but only a security. 17. The learned counsel appearing on behalf of the plaintiff was unable to explain as to why a sum of Rs.10,000/- was kept back instead of paying the same on the same date and having the sale deed executed. The plaintiff has also not been able to prove the passing of consideration. He would submit that the Police complaint lodged by the defendant against the plaintiff and his mother-in-law was an afterthought since the same had been filed after the issue of notice by the plaintiff. He would submit that the plaintiff was always ready and willing to go ahead with the sale deed and it was only the defendant who was not willing to complete the sale. He would submit that both the Courts below have rightly decreed the suit in favour of the plaintiff. Discussion: (i) Whether Ex.A.1 is an agreement of sale or a security for a transaction? 18. The plaintiff has come forward with a case that he had entered into an agreement of sale in respect of the suit property with the defendant on 28.10.2009 and on the very same day a sum of Rs.4,00,000/- was paid leaving a balance of a sum of Rs.10,000/-. However, the time given for paying the balance sum of Rs.10,000/- is two years. However, the time given for paying the balance sum of Rs.10,000/- is two years. This clearly gives raise to suspicion that the document though styled as agreement of sale was really not intended to be an agreement of sale as the amount of money kept back as a balance is very paltry. 19. If the agreement was really intended to be a sale agreement they would not leave a balance of an insignificant sum of Rs.10,000/- and fix two year period for paying the same. That apart, the first notice has been issued by the plaintiff calling upon the defendant to execute the sale deed only a year and month later i.e., 29.11.2010 and the suit has been filed in the year 2011. This itself would clearly show that the document was not intended to be a sale and that is the reason for the plaintiff not coming forward earlier to pay balance and having sale deed executed. The plaintiff has not only failed to plead readiness and willingness but also prove the same. 20. The defendant had raised a plea that the agreement of sale had been executed only as surety for purchase of a mini bus belonging to the plaintiff’s mother-in-law by one R.Murugan, who is the close relative of the said C.Murugan. Though such a defense has been taken no issue in this regard has been framed by the Trial Court. That there was a transaction for the sale of the vehicle is evident from Ex.B.2 and Ex.B.5. 21. The plaintiff has not chosen to examine his mother-in-law who in her statement before the Police Authorities would state that the vehicle was handed over to her son-in-law the plaintiff for sale on 28.10.2009 whereas in Ex.B.2 notice dated 07.10.2009 she would state that the vehicle was handed over to the defendant’s son on 10.07.2009. It is also to be taken note that though a sum of Rs.4,00,000/- has been paid by the plaintiff, the plaintiff has not been put in possession of the suit property and the same continues to be in possession of the defendant which is evident from the fact that the plaintiff has not pleaded that he had been put in possession of the property, which is yet another reason for doubting the purpose for which the Ex.A.1 of agreement of sale had been executed in favour of the plaintiff. I hold that Ex.A.1 was not intended to culminate in a sale but was only offered as a security. (ii) Readiness and willingness: 22. The Courts below have not considered the issue regarding readiness and willingness which even if it is not pleaded, has to be considered by the Courts. Section 16 (c) of the Specific Relief Act provides a personal bar to the relief of Specific Performance if the person claiming the relief has failed to aver and prove his readiness and willingness. Readiness is the capacity of the person and willingness refers to his conduct to have the document executed. The defendant had categorically denied receiving any amounts from the plaintiff on the contrary it is her case that the agreement of sale was only a security for the transaction between her relative R.Murugan and plaintiff’s mother-in-law Raziabegum. The plaintiff has not let in any evidence to show that a sum of Rs.4,00,000/- had been paid by him to the defendant and it only his statement that is available. The conduct of the plaintiff would also demonstrate that he was not willing to proceed with the sale. The agreement dated 28.10.2009 provides a two year period for paying the balance of a negligible amount of Rs.10,000/-. The first notice is issued only on 29.11.2010 and the suit is filed in the year 2011. Therefore, the plaintiff has failed to prove his readiness and willingness. 23. As discussed earlier and to sum up the discussion, the agreement of sale cannot be considered to be a document executed for the purpose of selling the suit property for the following reasons: (i) For the payment of a mere sum of Rs.10,000/- the time for performance of contract is agreed to be two years. (ii) The possession of the property has not been handed over to the plaintiff. (iii) Original documents have been handed over without handing over possession which would clearly indicate that the document was only intended to be a security. (iv) The first notice has been issued only a year later i.e., on 29.11.2010. (v) The payment of a sum of Rs.4,00,000/- had not been proved by the plaintiff. (vi) The plaintiff has failed to prove his readiness and willingness. (vii) The Courts below have failed to note the contradictions in the statement given by Raziabegum in Ex.B.5 and Ex.B.2, notice dated 07.10.2010. (v) The payment of a sum of Rs.4,00,000/- had not been proved by the plaintiff. (vi) The plaintiff has failed to prove his readiness and willingness. (vii) The Courts below have failed to note the contradictions in the statement given by Raziabegum in Ex.B.5 and Ex.B.2, notice dated 07.10.2010. The Courts below ought to have drawn adverse inference from the non-examination of Raziabegum by the plaintiff. Therefore the plaintiff is not entitled to the relief of Specific performance. 24. Further, the plaintiff has not proved the passing of consideration and as this Court holds that the agreement of sale was only intended to be a security, the plaintiff is also not entitled to alternate relief. The Substantial Questions of law are answered in favour of the defendant/appellant. The Second Appeal is allowed and the Judgment and Decree of the Courts below are set aside. Consequently, connected Civil Miscellaneous Petition is also closed. No costs.