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2021 DIGILAW 559 (KAR)

C. Vasudevamurthy v. S. S. Amarnath

2021-04-16

B.VEERAPPA, RAVI V HOSMANI

body2021
JUDGMENT : B. VEERAPPA, J. 1. This is defendant's Regular First Appeal against judgment and decree dated 20.11.2012 made in O.S.No.265/2007 on the file of the Senior Civil Judge, Doddaballapura, decreeing the suit of the plaintiffs for specific performance to enforce the agreement dated 29.03.2006 entitling the plaintiffs for getting the sale deed registered with respect to the suit lands from the defendant by paying balance sale consideration within 60(sixty) days from the date of the judgment. For the sake of convenience, parties are referred to as per their ranking before the Trial Court. I. FACTS OF THE CASE: 2. The respondents/plaintiffs filed the suit for specific performance to enforce the agreement dated 29.03.2006 executed by the defendant, contending that defendant being the owner in possession of the suit schedule property entered into an agreement of sale dated 29.03.2006 to sell the suit schedule property for a total sale consideration of Rs. 15,18,750/- and received Rs. 3,00,000/- as advance on the date of the agreement and further agreed to receive the balance sale consideration of Rs. 12,18,750/- at the time of execution of the registered sale deed, and took three months' time to procure all required documents and complete the sale transaction. Accordingly, at the end of June 2006, plaintiffs approached the defendant urging him to execute the registered sale deed in their favour stating that they are ready and willing to perform their part of contract. But, the defendant was not ready and sought time till November 2006 stating that the required documents for the purpose of execution of sale deed have not been secured and sought some more time. Though the plaintiffs were ready and willing to perform their part of the contract, believing the representation made by the defendant, agreed to wait till November 2006. Again, in November 2006, the plaintiffs approached the defendant expressing their readiness and willingness to get the sale deed registered in their favour, by paying the balance sale consideration. But, again, the defendant tried to avoid the plaintiffs and showed unwillingness to perform his part of the contract. Therefore, the plaintiffs issued legal notice dated 29.12.2006, calling upon the defendant to perform his part of contract by executing the registered sale deed within fifteen days from the date of receipt of the notice. The defendant, though admitted execution of the agreement of sale and receipt of advance amount, sent untenable reply. Therefore, the plaintiffs issued legal notice dated 29.12.2006, calling upon the defendant to perform his part of contract by executing the registered sale deed within fifteen days from the date of receipt of the notice. The defendant, though admitted execution of the agreement of sale and receipt of advance amount, sent untenable reply. It was further contended that in the reply, the defendant revealed that he is not ready and willing to execute the registered sale deed in favour of the plaintiffs and further, they came to know that the defendant was trying to sell the suit schedule property in favour of third parties. Therefore, the plaintiffs filed the suit for specific performance. 3. After service of suit summons, the defendant appeared through his counsel, filed written statement admitting the execution of agreement of sale dated 29.03.2006 in favor of plaintiffs and receipt of advance amount of Rs. 3,00,000/- and his undertaking to procure all necessary documents within three months from the date of the agreement. The defendant further contended that the suit is hopelessly barred by time and time was essence of contract. Three months' time was fixed for execution of registered sale deed and the plaintiffs have utterly failed to get the registered sale deed executed well within the time stipulated in the agreement. Hence, the plaintiffs are not entitled to any relief. II. ISSUES FRAMED BY THE TRIAL COURT 4. In view of the rival pleadings urged by the parties, the Trial Court framed the following issues: (i) Whether plaintiffs prove that defendant had agreed to sell the suit schedule property for consideration amount of Rs. 15,18,750/- and received an amount of Rs. 3,00,000/- as advance, thereby executed agreement for sale on 29.03.2006? (ii) Whether plaintiffs prove that they are always ready and willing to perform their part of contract? (iii) Whether suit is time barred by law of limitation? (iv) Whether plaintiffs are entitle for the relief sought by them? (v) What Order or decree? 5. In order to prove their case, plaintiff No.5 was examined as P.W.1 and one Suresh was examined as P.W.2 and marked the documents Exs.P.1 to P.4. In order to disprove the case of the plaintiffs, defendant was examined as D.W.1 and other two witnesses were examined as D.Ws.2 and 3, and documents Exs.D.1 to D.4 were marked. 6. 5. In order to prove their case, plaintiff No.5 was examined as P.W.1 and one Suresh was examined as P.W.2 and marked the documents Exs.P.1 to P.4. In order to disprove the case of the plaintiffs, defendant was examined as D.W.1 and other two witnesses were examined as D.Ws.2 and 3, and documents Exs.D.1 to D.4 were marked. 6. Considering both oral and documentary evidence on record, the Trial court recorded a finding that the plaintiffs proved that the defendant had agreed to sell the suit schedule property for total consideration amount of Rs. 15,18,750/- and received advance amount of Rs. 3,00,000/- as advance and executed agreement for sale on 29.03.2006 as per Ex.P.4, plaintiffs proved that they were always ready and willing to perform their part of contract, the suit filed by the plaintiffs is not barred by law of limitation and plaintiffs are entitled to the relief sought for and accordingly, decreed the suit with cost directing the defendant to execute the registered sale deed in favour of the plaintiffs with respect to the suit lands after receiving the balance sale consideration, within sixty days from the date of the judgment. Hence, the present Regular First Appeal has been filed by the defendant. 7. We have heard the learned counsel for the parties to the lis. III. ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE APPELLANT 8. Sri T.Sheshagiri Rao, learned counsel for the appellant/ defendant contended that the plaintiffs have not proved their readiness and willingness to perform their part of contract as contemplated under Section 16(c) of the Specific Relief Act, 1963. He would contend that, in view of the provisions of Section 22(2) of the Specific Relief Act, 1963, in the absence of any specific prayer in the plaint, the Trial Court was not justified in decreeing the suit of the plaintiffs directing the defendant to put the plaintiffs in possession and enjoyment of the suit schedule property. He further contended that the plaintiffs have not produced any material documents to prove that they were ready and willing to perform their part of the contract with proof to show their financial capacity. In the absence of the same, the Trial court is not justified in decreeing the suit of the plaintiffs. Therefore, learned counsel sought to allow the Regular First Appeal. 9. In the absence of the same, the Trial court is not justified in decreeing the suit of the plaintiffs. Therefore, learned counsel sought to allow the Regular First Appeal. 9. In support of his contentions, learned counsel for the appellant/defendant relied upon the following judgments: (i) N.P.Thirugnanam (dead) by LRs vs. Dr.R.Jagan Mohan Rao and others, (1995) 5 SCC 115 , paragraph-5. (ii) Adcon Electronics Pvt. Ltd., vs. Daulat and another, (2001) 7 SCC 698 . (iii) Sri Punny Akat Philip Raju, Since dead by his LRs vs. Sri Dinesh Reddy, (2016) ILR(Kar) 2252. IV. ARGUMENTS ADVANCED BY THELEARNED COUNSEL FOR THE RESPONDENTS/PLAINTIFFS 10. Per contra, Sri M.Ashwathnarayan Reddy, learned counsel for respondent Nos.2 and 4/plaintiffs 2 and 4, Sri S.Keshavarao Mohite, for Sri Sathya Raj M.N., learned counsel for respondent Nos.1, 3 and 5/ plaintiffs 1, 3 and 5, sought to justify the impugned judgment and decree passed by the Trial Court and contended that at paragraph 6 of the plaint, the plaintiffs have specifically stated about readiness and willingness to perform their part of the contract and that the plaintiffs approached the defendant urging him to execute a registered sale deed in their favour as plaintiffs were ready and willing to perform their part of contract by paying the balance sale consideration. The plaintiffs, though ready and willing to perform their part of contract, believed the representation of the defendant and agreed to wait till November 2006. Learned counsel further contended that P.W.1 at paragraph 4 and 5 of the evidence by way of affidavit has specifically stated that, "we (plaintiffs) have always been ready and willing to perform our part of contract by paying the balance sale consideration. But the defendant was not ready and sought for time till November 2006 to secure the documents for the purpose of registration. We believed the words of the defendant. In the month of November 2006, once again approached the defendant and requested to execute registered sale deed, but the defendant again tried to avoid and shown unwillingness to perform his part of contract and not ready to execute the sale deed". No cross examination was made with regard to financial capacity of the plaintiffs. One Suresh was examined as P.W.2 and nothing has been elicited in the cross-examination about financial capacity of the plaintiffs. No cross examination was made with regard to financial capacity of the plaintiffs. One Suresh was examined as P.W.2 and nothing has been elicited in the cross-examination about financial capacity of the plaintiffs. Learned counsel further contended that plaintiffs were always ready and willing to perform their part of the contract and since defendant did not come forward to perform his part of the contract, plaintiffs issued legal notice. Learned counsel for the plaintiffs contended that plaintiffs have deposited the entire balance sale consideration in terms of the agreement within the time stipulated by the Trial Court while decreeing the suit. Therefore, learned counsel sought to dismiss the Regular First Appeal. 11. In support of their contentions, learned counsel for the respondents/plaintiffs sought to rely on the following judgments: (i) Beemaneni Maha Lakshmi vs. Gangumalla Appa Rao (since dead) by LRs, (2019) AIR SC 3013 , paragraphs 10, (ii) Zarin Siddiqui vs. A.Ramalingam alias R.Amarnathan, (2015) AIR SC 580 , paragraphs-34 and 35, (iii) Union of India vs. Ibrahim Uddin and another, (2012) 8 SCC 148 , paragraph-77. V. POINTS FOR DETERMINATION 12. In view of the rival contentions urged by the learned counsel for the parties, the points that arise for our consideration are: (i) Whether the plaintiffs prove that they were always ready and willing to perform their part of the contract as contemplated under Section 16(c) of the Specific Relief Act, 1963? (ii) Whether the Trial court is justified in decreeing the suit of the plaintiffs to enforce the agreement of sale dated 29.03.2006? (iii) Whether the defendant has made out a case to interfere with the impugned judgment and decree passed by the Trial Court, in the facts and circumstances of the present case? 13. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record, carefully. VI. CONSIDERATION 14. It is the specific case of the plaintiffs that defendant is the owner of the suit schedule property and executed an agreement of sale dated 29.03.2006 for total sale consideration of Rs. 15,18,750/- and received advance of Rs. 3,00,000/- and three months' time was fixed for the defendant to procure all necessary documents to execute the registered sale deed and hand over possession of the suit schedule property to the plaintiffs. 15,18,750/- and received advance of Rs. 3,00,000/- and three months' time was fixed for the defendant to procure all necessary documents to execute the registered sale deed and hand over possession of the suit schedule property to the plaintiffs. In the month of June 2006, plaintiffs approached the defendant stating that they are ready and willing to perform their part of the contract, but the defendant was not ready and sought time till November 2006. Plaintiffs were always ready and willing to perform their part of the contract. In November 2006, when the plaintiffs approached the defendant, again he avoided the plaintiffs and therefore, plaintiffs issued legal notice dated 29.12.2006 calling upon the defendant to execute the registered sale deed. Since the defendant sent evasive reply, the plaintiffs filed suit for specific performance. 15. The defendant has not disputed the agreement of sale dated 29.03.2006 and that the total sale consideration was Rs. 15,18,750/-. The defendant admitted the receipt of Rs. 3,00,000/- as advance and contended that plaintiffs were not ready and willing to perform their part of the contract and they have not produced any proof to establish their financial capacity to pay the balance sale consideration. The filing of suit for specific performance of contract by mere pleading regarding readiness and willingness without showing any proof for the same, is not maintainable. VII. EVIDENCE OF THE PARTIES 16. In order to prove the case of the plaintiffs, 5th plaintiff was examined as P.W.1, who, reiterating the averments made in the plaint, deposed about execution of the agreement of sale dated 29.03.2006 by the defendant for total sale consideration of Rs. 15,18,750/- and receipt of Rs. 3,00,000/- as advance sale consideration and that three months time was fixed for completing the transaction. Though plaintiffs were ready and willing to perform their part of the contract by paying balance sale consideration, the defendant was not ready and willing to perform his part of contract and had not secured the necessary documents for execution of registered sale deed. The defendant requested to extend the time till November 2006 on the ground that he had not yet secured the necessary documents. The plaintiffs, believing the words of the defendant waited and when approached in November 2006, the defendant again tried to avoid the plaintiffs. In the crossexamination, P.W.1 deposed that defendant is the brother of his father-in-law. The defendant requested to extend the time till November 2006 on the ground that he had not yet secured the necessary documents. The plaintiffs, believing the words of the defendant waited and when approached in November 2006, the defendant again tried to avoid the plaintiffs. In the crossexamination, P.W.1 deposed that defendant is the brother of his father-in-law. Though at the first instance he deposed that, out of five plaintiffs, four of them are tax payers, later, stated that all of them may be paying tax, but he does not know correctly. He admitted the agreement of sale entered into between the plaintiffs and defendant. He deposed that three months time was fixed to complete the sale transaction and he has not issued any notice to the defendant to execute the sale deed within three months and admitted that on 29.12.2006 plaintiffs issued notice to the defendant and denied the suggestion that since the balance sale consideration was not arranged within three months, the sale deed was not executed. He further denied the suggestion that since the plaintiffs had difference of opinion among themselves, they could not arrange the money and therefore they failed to act as per the agreement. 17. One Mr. Suresh was examined as P.W.2 and he deposed about the execution of agreement of sale, sale consideration, payment of advance amount and issuance of legal notice. He deposed that the defendant was not ready to execute the sale deed and sought time till November 2006 to secure the necessary documents for the purpose of execution of the registered sale deed and that the plaintiffs were always ready and willing to perform their part of the contract. In the cross-examination, P.W.2 deposed that plaintiffs had not issued notice to the defendant asking him to execute the sale deed within three months. He deposed that though he had not seen any document to say that plaintiffs had the balance sale consideration during the said period, but deposed that the plaintiffs had the required amount. He further stated that the 1st plaintiff was running a two wheeler show room, he does not know the avocation of 2nd plaintiff, 3rd plaintiff had a wine shop near Bus Stand and its licence was in the name of his mother, 4th plaintiff had a petty shop and 5th plaintiff was doing the business of purchasing and selling the lands. He does not know whether the plaintiffs made the transaction in question with an intention to sell the suit lands to third parties and he does not know whether 5th plaintiff is having any other property apart from the house near the railway station. 18. To disprove the case of the plaintiffs, defendant examined himself as D.W.1 and admitted the agreement entered by him with the plaintiffs, sale consideration, receipt of advance sale consideration and further deposed that, on several occasions, he had insisted and demanded the plaintiffs to perform their part of the contract by paying the balance sale consideration. He further deposed that the plaintiffs being the real estate agents were unable to arrange the balance sale consideration and get the sale deed registered in their names. He further deposed that he had issued a cheque bearing No.319342 for a sum of Rs. 50,000/- drawn on Corporation Bank, in favour of the 5th plaintiff-T.N.Jagadish and the same was encashed. The plaintiffs, by suppressing the material facts, filed the untenable suit. The plaintiffs issued an untenable notice dated 29.12.2006 after expiry of three months period stipulated in the agreement for sale dated 29.03.2006. Therefore, he issued the reply dated 16.01.2007 and rescinded the contract by forfeiting the advance amount paid by the plaintiffs. D.W.1 further deposed that the plaintiffs utterly failed to pay the balance sale consideration within the stipulated period of three months. Plaintiffs conveyed their pathetic helplessness to perform their part of contract and requested the defendant to return the advance amount paid by them. After lapse of nine months from the stipulated period of three months mentioned in the agreement of sale dated 29.03.2006, plaintiffs issued the legal notice on untenable grounds. The plaintiffs were never ready and willing to perform their part of the contract. The plaintiffs were real estate agents and jobless. The intention of the plaintiffs was to sell the schedule property to third parties and to make money. Owing to the crisis in the market, plaintiffs could not succeed to sell the schedule property for a higher consideration to third parties. There were tussles among the plaintiffs to arrange the money. Owing to the incapacity, plaintiffs could not arrange the balance sale consideration and get the absolute sale deed registered in their name. Owing to the crisis in the market, plaintiffs could not succeed to sell the schedule property for a higher consideration to third parties. There were tussles among the plaintiffs to arrange the money. Owing to the incapacity, plaintiffs could not arrange the balance sale consideration and get the absolute sale deed registered in their name. In the cross-examination, D.W.1 admitted the execution of agreement of sale, sale consideration, receipt of advance amount and that M.R.No.42/2006-07 was obtained on 04.11.2006. He further deposed that 5th plaintiff-Jagadish is the son-in-law of his elder brother. He does not know whether the 5th plaintiff was doing business and whether he is financially sound. So also, he is not aware whether rest of the plaintiffs are also doing business. He knows that they are doing real estate business and they have purchased lot of lands. He further deposed that Sy.No.24/5 was in the joint khatha of himself, his brother, mother and sister and he does not know its extent. After it was converted as Sy.No.24/7, his share was shown with effect from 04.11.2006. He has further deposed that he is not having any acknowledgment to show that he paid Rs. 50,000/- to the plaintiffs and he has not mentioned it in the reply notice. He admitted that even in the written statement there is no averment with regard to amount returned by him and denied the suggestion that he has not repaid the advance amount received from the plaintiffs. 19. D.W.2-Subbarayashetty, examined on behalf of the defendant deposed that he knows the plaintiffs and defendant and that plaintiffs filed suit for specific performance of contract against the defendant suppressing the material facts. He deposed regarding agreement of sale executed by the defendant in favour of the plaintiffs, sale consideration, receipt of advance sale consideration by the defendant and that the plaintiffs are not having any income from any source. He deposed that all the plaintiffs are real estate agents and were searching people for selling the schedule property. Owing to the intrinsic clashes among themselves, plaintiffs could not arrange the balance sale consideration and could not get the property registered in their name by paying the balance sale consideration. The defendant was always ready and willing to execute the absolute sale deed in favour of the plaintiffs. There was no impediment for the execution of sale deed. Owing to the intrinsic clashes among themselves, plaintiffs could not arrange the balance sale consideration and could not get the property registered in their name by paying the balance sale consideration. The defendant was always ready and willing to execute the absolute sale deed in favour of the plaintiffs. There was no impediment for the execution of sale deed. On several occasions, defendant had approached the plaintiffs and insisted them to perform their part of the contract. But, the plaintiffs expressed their inability to perform their part of contract and revealed the fact that they were searching for the purchasers to sell the schedule property. The defendant got annoyed by the words of the plaintiffs and insisted them to perform their part of contract. He further deposed that plaintiffs have no business or income from any angle and were unable to arrange the money to pay the balance sale consideration and get the absolute sale deed registered in their name. When the plaintiffs utterly failed to perform their part of contract, the contract was rescinded and defendant paid Rs.50,000/- to the plaintiffs by way of a cheque. He further deposed that the plaintiffs failed to perform their part of contract and contract was terminated by issuing a reply notice. In the cross-examination, D.W.2 deposed that 5th plaintiff is his sonin- law. He cannot say that they are financially sound. They own a house near the railway station and denied the suggestion that 5th plaintiff has let out 4 to 5 houses on rent and stated that 5th plaintiff might have let out 2 to 3 houses on rent. The brother and sisters of 5th plaintiff are in America and they do not own agricultural lands. He deposed that the 5th plaintiff does the business of purchasing the lands by entering into agreement and selling them to others for higher price and is in financially moderate position. D.W.2 deposed that he was not present at the time of execution of the agreement of sale. He came to know about the same from his brother and 5th plaintiff. He does not know the correct information, as he was not present at the time of execution of agreement. D.W.2 deposed that he was not present at the time of execution of the agreement of sale. He came to know about the same from his brother and 5th plaintiff. He does not know the correct information, as he was not present at the time of execution of agreement. He admitted that Sy.No.24/5 was standing in the joint names of his sister and younger brother and denied the suggestion that after the agreement, khatha was changed to their individual names and stated that about 4 to 5 years ago, separate khatha was effected. He admitted that the 5th plaintiff approached him on 2 to 3 occasions to tell his brother to execute the sale deed and in this regard, he spoke to defendant. He stated that defendant gave Rs. 50,000/- to the 5th plaintiff through cheque and he is not aware as to when the cheque was given. 20. D.W.3-Shamanna, deposed that he knows the plaintiffs and defendant and the suit filed by the plaintiffs for specific performance to enforce the contract against the defendant. He deposed that the plaintiffs have suppressed the material facts and have utterly failed to perform their part of the contract within the time stipulated in the agreement of sale dated 29.03.2006. He deposed that defendant is his son-in-law and for his legal necessities, defendant entered into a contract with the plaintiffs to sell the schedule property for the educational purpose of his daughter and also for construction of house. The defendant also demolished the old house and started putting up new one. Due to the difficulty in arranging the money for the education of his daughter and for the construction of house, defendant offered to sell the schedule property in favour of plaintiffs for a valuable consideration of Rs. 15,18,750/- and received advance amount of Rs.3,00,000/-. Three months duration was fixed for completion of the contract. Plaintiffs who were bound to arrange the balance consideration amount, could not fulfill their part of contract and failed to pay the balance consideration amount and to get the absolute sale deed registered in their name at their cost. He further deposed that when the defendant demanded the plaintiffs to perform their part of contract, plaintiffs expressed their inability and asked defendant to sell the schedule property in favour of others and to return the advance amount of Rs. 3,00,000/- paid by them. He further deposed that when the defendant demanded the plaintiffs to perform their part of contract, plaintiffs expressed their inability and asked defendant to sell the schedule property in favour of others and to return the advance amount of Rs. 3,00,000/- paid by them. The defendant issued a cheque for Rs. 50,000/- drawn on Corporation Bank, in favour of 5th plaintiff and the same was encashed by him. Plaintiffs filed false case by suppressing the said facts. The plaintiffs are not having any income from any source. They are all real estate agents and were searching for the purchasers to sell the schedule property. Owing to the intrinsic clashes among themselves, plaintiffs could not arrange the balance sale consideration and could not get the property registered in their name. The defendant was always ready and willing to execute the absolute sale deed. There was no impediment for the registration of the sale deed. On several occasions, defendant approached the plaintiffs and insisted them to perform their part of contract. Plaintiffs expressed their inability to perform their part of contract and revealed the fact that they are searching for purchasers to sell the schedule property due to which the defendant got annoyed and insisted them to perform their part of contract. The plaintiffs have no income from any angle. They were unable to arrange the balance sale consideration and utterly failed to perform their part of contract. He further deposed that, after lapse of nine months from the expiry of three months period mentioned in the agreement dated 29.03.2006, plaintiffs got issued an untenable notice, to which the defendant replied. In the cross-examination, D.W.3 deposed that he is residing in Bengaluru and admitted that defendant is his son-in-law. He admitted the agreement of sale entered into between the plaintiffs and defendant, and on the date of agreement he was not present and he has no personal knowledge about the agreement. He deposed that the examination-in-chief by way of affidavit was prepared as per the information given by his son-in-law and denied the suggestion that he is deposing falsely as tutored by his son-in-law. 21. It is relevant to consider Ex.P.4, agreement of sale dated 29.03.2006, entered into between the parties. The defendant executed an agreement in favour of plaintiffs in respect of the suit schedule property measuring 1 acre 50 guntas for total consideration of Rs. 15,18,750/-. 21. It is relevant to consider Ex.P.4, agreement of sale dated 29.03.2006, entered into between the parties. The defendant executed an agreement in favour of plaintiffs in respect of the suit schedule property measuring 1 acre 50 guntas for total consideration of Rs. 15,18,750/-. On the same day, defendant received Rs. 3,00,000/- towards advance sale consideration and agreed that he will close all the ditches in the land, clean it and procure all the required documents to complete the sale transaction and will execute the registered sale deed within three months from the date of the agreement. Though the agreement came to be executed on 29.03.2006, defendant failed procure the required documents within three months and ensure that the ditches in the property are filled and leveled. The khatha was made in the name of the defendant only on 04.11.2006 as is evident from Ex.D.2 and the plaintiffs issued the legal notice on 29.12.2006. According to the defendant, he replied to the legal notice, but the reply notice is not produced. Admittedly, plaintiffs filed the suit on 19.06.2007 for the relief of specific performance to enforce the agreement of sale dated 29.03.2006. In order to enforce the agreement, the plaintiffs must not only aver in the pleadings, but also have to prove that they have performed or establish that they were always been ready and willing to perform their part of the contract, in terms of the agreement of sale dated 29.03.2006. 22. The provisions of Section 16(c) of the Specific Relief Act, 1963 and explanations I and II, prior to amendment, 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." 23. The provisions of Section 16(c) of the Specific Relief Act, 1963 and explanations I and II, after amendment, 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 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 prove performance of, or readiness and willingness to perform, the contract according to its true construction." A careful reading of the aforesaid provision makes it clear that Section 16(c) of the Specific Relief Act, 1963 mandates "readiness and willingness" on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is on the plaintiff. The provisions of Section 16(c) of the Specific Relief Act, 1963 clearly depicts that the plaintiff must not only aver in the plaint pleadings but also prove the readiness and willingness to perform his part of the contract according to true construction. 24. Section 20 of the Specific Relief Act, 1963, reads as under: "20. Discretion as to decreeing specific performance.- (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. Discretion as to decreeing specific performance.- (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance:- (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation 1.-Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation 2.- The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. (3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party. Requirement of Proof: 25. (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party. Requirement of Proof: 25. Section 3 of the Indian Evidence Act, 1872, defines 'Evidence' as under: "Evidence" means and includes- (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence. Thus, the evidence may be oral or documentary. 26. The words 'proved', 'not proved' and 'disproved' are also defined under Section 3 of the Indian Evidence Act, 1872, which reads as under: (a) A fact is said to be 'proved' when, after considering the matter before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. (b) A fact is said to be 'not proved' when it is neither proved nor disproved. (c) A fact is said to be 'disproved' when, after considering the matters before it, the Court either believes that it does not exist, or considers its nonexistence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. 27. The provisions of the Indian Evidence Act, 1872, gives the Court power to adjudge the existence of facts on matters before it as well as they are deposed to in evidence. The test of whether a fact in issue is proved or dis-proved is whether a prudent man after considering the matters before him, deemed it proved or not. Ultimately, on appreciation of the evidence, if the Court believes it to exist or considers its existence so probable, then the said fact is said to be proved. The test described is satisfaction of a prudent man having regard to the circumstances of that particular case. 28. The provisions of Section 59 of the Indian Evidence Act, 1872, deals with the proof of facts by oral evidence, which reads as under: "59. The test described is satisfaction of a prudent man having regard to the circumstances of that particular case. 28. The provisions of Section 59 of the Indian Evidence Act, 1872, deals with the proof of facts by oral evidence, which reads as under: "59. Proof of facts by oral evidence- All facts, except the contents of documents or electronic records, may be proved by oral evidences." 29. The provisions of Section 60 of the Indian Evidence Act, 1872, speaks that oral evidence must be direct, which reads as under: "60. Oral evidence must by direct- Oral evidence must, in all cases whatever, be direct; that is to say- If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds: Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable: Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection. It provides that the oral evidence must, in all cases whatever, be direct. The proviso to Section 60 categorically states that if oral evidence refers to a fact in existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection." 30. It provides that the oral evidence must, in all cases whatever, be direct. The proviso to Section 60 categorically states that if oral evidence refers to a fact in existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection." 30. The provisions of Section 61 of the Indian Evidence Act, 1872 speaks about the proof of contents of document, which reads as under: 61. Proof of contents of documents.- The contents of documents may be proved either by primary or by secondary evidence. 31. In view of the aforesaid statutory provisions, we have to find out that, when the plaintiffs aver in the plaint that they have performed or are always been ready and willing to perform the essential terms of the contract, which deals with payment of money, what is the proof that is required to prove the said averments. The explanation to Section 16 clarifies that when 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. But none the less, if the plaintiff wants to prove that he is possessed with the requisite funds to perform his part of the contract i.e., payment of balance sale consideration, "he should produce such evidence to substantiate his case". What he has to place before the Court is his financial ability either to raise the requisite funds or the possession of the requisite funds in proof of his readiness and willingness to perform the stipulations regarding the payment of balance sale consideration. The rule that in each case best evidence of which the case in its nature is susceptible should always be given naturally leads to the division of evidence into primary and secondary. Primary evidence is the best or highest evidence, or, in other words, it is that kind of proof which, in the eye of the law, affords the greatest certainty of the fact in question. Until it is shown that the production of this evidence is out of the party's power, no other proof of the fact is in general admitted. It is based on the principle that, 'best evidence' in the possession or power of the party must be produced. Until it is shown that the production of this evidence is out of the party's power, no other proof of the fact is in general admitted. It is based on the principle that, 'best evidence' in the possession or power of the party must be produced. What the best evidence is, it depends upon the facts and circumstances of each case. PROOF OF READINESS 32. The proof of readiness necessarily means demonstration of financial ability or capacity to pay the balance sale consideration and take the sale deed. When a person on oath states in the witness box that he is ready with the requisite funds, he must produce some evidence to prove his possession of the required funds. The explanation to Section 16(c) of the Specific Relief Act, 1963, makes it clear that the proof of requisite funds does not mean he should produce the currency before the Court or he should deposit the money in Court. But at the same time, mere statement on oath in the witness box that he is possessed of the requisite funds would also do not prove possession of funds. The said proof has to be necessarily by way of documentary evidence. The reason being, if, the payment is to be made in cash i.e., by handing over currency, currency is a documentary evidence. The explanation makes it clear that to prove readiness, the plaintiff need not produce the currency before the Court. If the balance consideration is to be deposited in the Court such a deposit is also evidence by documentary evidence , which is also not necessary by virtue of the explanation. 33. Money does not exist in vacuum. Money has to be necessarily in the form of physical object and in the nature of document: (i) Money is deposited in banks, (ii) Money is in the nature of securities, (iii) Money is capable of being raised from borrowing, (iv) Money could be raised by sale of properties movable or immovable. 34. When a person claims that he is possessed of sufficient funds, he has to produce 'some documentary evidence', which proves his capacity to raise the funds or he possess the funds. Now, the question is, what are the documents which, the plaintiff can produce to prove his capacity? 34. When a person claims that he is possessed of sufficient funds, he has to produce 'some documentary evidence', which proves his capacity to raise the funds or he possess the funds. Now, the question is, what are the documents which, the plaintiff can produce to prove his capacity? The answer would be: (i) It may be a passbook issued by a Bank where the plaintiff has kept the balance sale consideration ready for payment. (ii) If he has invested his money by way of securities, he has to produce those securities before Court to show that any time he can encash the same and pay the balance consideration. (iii) If he has kept the money in fixed deposit, in a Bank, that deposit receipt is the proof of his ability to raise the balance sale consideration. (iv) If he intends to borrow money from a Nationalized Bank or from his employer or from any other financial institution, it has to be demonstrated by producing a request for such financial assistance in writing, sanctioning of the said loan which has to be necessarily in writing. These instances are only illustrative. There may be several other modes by which the requisite funds are raised. But all of these instances are evidenced by documentary evidence. 35. Therefore, the plaintiff, mere stepping into the witness box and saying on oath that he is ready with the balance sale consideration or that he is going to borrow money from any financial institution or that he has got sufficient funds in his Bank accounts or that he has kept money in Fixed Deposit, without that oral evidence being supported by documentary evidence will not prove the plaintiff's readiness to pay the balance sale consideration. It is immaterial whether such oral evidence is challenged in cross40 examination or not. 'The plaintiff has to prove to the satisfaction of the Court that he possessed the requisite funds. He has to produce such documentary evidence', which would enable the Court to come to the conclusion that plaintiff is ready with the requisite balance sale consideration to complete the sale transaction. If no evidence is adduced in this regard by way of documentary evidence, no prudent man would come to the conclusion that the person has proved the possession of funds. If no evidence is adduced in this regard by way of documentary evidence, no prudent man would come to the conclusion that the person has proved the possession of funds. In the absence of any such documentary evidence being produced, it is a case of plaintiff's case being not proved. Plaintiff cannot expect the Court to pass a decree for specific performance of a contract of sale when the plaintiff has not proved his readiness to perform his part of the contract. 36. The Apex Court had an occasion to consider the contention that when there is no denial of readiness and willingness by the defendant either in the written statement or in the evidence, there is no obligation on the part of the plaintiff to produce any documentary evidence to prove his readiness. The Supreme Court in the case of J.P. Builders & another -vs- A. Ramadas Rao, (2011) 1 SCC 429 , at paragraphs 21, 22, 25, 26 and 27, held as under: (21) Among the three clauses, we are more concerned about clause (c). 'Readiness and Willingness' is enshrined in clause (c) which was not present in old Act of 1877. However, it was later inserted with the recommendations of the 9th Law Commission's Report. This clause provides that the person seeking specific performance must prove that he has performed or has been ready and willing to perform the essential terms of the contract which are to be performed by him. (22) The words 'ready' and 'willing' imply that the person was prepared to carry out the terms of the contract. The distinction between 'readiness' and 'willingness' is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness. (25) Section 16(c) of the Specific Relief Act, 1963 mandates 'readiness and willingness' on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous 'readiness and willingness' to perform the contract on his part from the date of the contract. The onus is on the plaintiff. (26) It has been rightly considered by this Court in R.C. Chandiok V. Chuni Lal Sabharwal that "readiness and willingness" cannot be treated as a straitjacket formula. The onus is on the plaintiff. (26) It has been rightly considered by this Court in R.C. Chandiok V. Chuni Lal Sabharwal that "readiness and willingness" cannot be treated as a straitjacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned. (27) It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and Willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties. 37. A careful reading of the oral evidence of P.Ws.1 and 2, D.Ws.1 to 3 and the material documents Exs.P.1 to 4 and Exs.D.1 to 4 clearly depict that plaintiffs have averred in the plaint that they were always ready and willing to perform the essential terms of the agreement which deals with money. They have not whispered in the plaint the proof of the amount to pay balance sale consideration. Mere assertion on oath that they are ready with balance sale consideration even if it is not challenged in the cross-examination by the defendant is not the proof of plaintiffs' readiness with the balance sale consideration. They should produce such evidence of proof that they have requisite funds to pay the balance sale consideration. The proof of readiness necessarily means demonstration of financial ability or capacity to pay balance sale consideration and get the sale deed. The plaintiffs deposed on oath in the witness box that they are ready and willing to perform their part of contract, but they have not stated that even the requisite funds were ready with them to pay the balance sale consideration, by documentary evidence. 38. Admittedly, in the present case, plaintiffs have not produced the proof of documentary evidence to pay the remaining balance sale consideration amount of Rs. 12,18,750/-. 38. Admittedly, in the present case, plaintiffs have not produced the proof of documentary evidence to pay the remaining balance sale consideration amount of Rs. 12,18,750/-. The D.Ws.1 to 3 in their evidence clearly stated that 5th plaintiff is real estate agent and they have no capacity to pay balance sale consideration. Even in the legal notice dated 29.12.2006 issued on behalf of the plaintiffs as per Ex.P.4, it is only stated that, "our clients were always ready to perform their part of contract to get sale deed in their favour by paying balance amount". The plaintiffs have not averred the source for paying the balance sale consideration of Rs. 12,18,750/- payable to the defendant in terms of the agreement and no documentary proof is pleaded or produced. Therefore, plaintiffs failed to prove their 'readiness and willingness' as contemplated under Section 16(c) Explanations 1 and 2 of the Specific Relief Act, 1963. 39. The Trial Court proceeded to hold that the plaintiffs have pleaded in the plaint and stated on oath that they were always ready and willing to perform their part of contract and called upon the defendant to perform his part of contract, by issuing legal notice. The learned Judge has not referred to any of the documents produced by the plaintiffs to prove their readiness to pay the balance sale consideration. Mere pleading and oral evidence of the plaintiffs that they are always ready and willing to perform their part of the contract, without producing any documentary evidence to show their financial capacity to pay the balance sale consideration would not establish the readiness of the plaintiffs to perform their part of contract. The Trial court is not justified in decreeing the suit of the plaintiffs based on oral assertion without there being any documentary proof. 40. By careful reading of the averments made in the plaint as well as evidence of P.Ws.1 and 2, depicts that, except asserting that plaintiffs were ready and willing to perform their part of contract by paying balance sale consideration and defendant was not ready, 'no documentary proof, like bank pass book or fixed deposit receipt or any other source of documentary evidence to pay balance sale consideration, has been produced'. Therefore, plaintiffs failed to comply with the provisions of Section 16(c) Explanation 1 and 2 of the Specific Relief Act, 1963. Therefore, plaintiffs failed to comply with the provisions of Section 16(c) Explanation 1 and 2 of the Specific Relief Act, 1963. The said material evidence has not been considered by the Trial Court and thereby, erroneously decreed the suit, in violation of the provisions of Section 16(c) of the Specific Relief Act, 1963, and the same cannot be sustained. 41. It is well settled that the specific performance cannot be enforced in favour of a person who fails to 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. Though the jurisdiction to decree a suit for specific performance is discretionary, merely because the plaintiff is legally right, the Court is not bound to grant him the relief. The Specific Relief Act, 1963, lays down that the jurisdiction to decree the suit for specific performance is a discretionary and the Court is not bound to grant such relief merely because it is lawful. The Court, while exercising its discretionary power is bound to exercise the same on established judicial principles and in a reasonable manner. The discretion cannot be exercised in an arbitrary or whimsical manner. 42. Admittedly, in the present case, the Trial Court has decreed the suit even though the plaintiffs are not legally right. The Trial Court is not bound to grant specific performance as the plaintiffs have failed to produce any 'proof of documentary evidence' that they were ready and willing to pay the balance sale consideration and the discretion exercised by the Trial Court in decreeing the suit is arbitrary, perverse and contrary to the provisions of Sections 16(c) and 20 of the Specific Relief Act, 1963 and one sided and cannot be allowed to stand which will be resulting in injustice to the defendant. 43. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Surinder Kaur (dead) through legal representative vs. Bhadur Singh (dead) through legal representatives, (2019) 8 SCC 575 , wherein, at paragraphs 6, 8, 10, 13 and 14, it is held as under: 6. The aforesaid provisions have to be read along with Section 16(c) ["16. The aforesaid provisions have to be read along with Section 16(c) ["16. Personal bars to relief.- Specific performance of a contract cannot be enforced in favour of a person-(a)-(b) ***(c) who fails to 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 prove performance of, or readiness and willingness to perform, the contract according to its true construction."] of the Specific Relief Act, 1963 which clearly lays down that the specific performance of a contract cannot be enforced in favour of a person who fails to prove that he has performed or was always ready and willing to perform the essential terms of the contract which were to be performed by him. 8. Section 20 of the Specific Relief Act lays down that the jurisdiction to decree a suit for specific performance is a discretionary jurisdiction and the court is not bound to grant such relief merely because it is lawful. 10. Admittedly, Bahadur Singh did not even pay a penny as rent till the date of filing of the suit. After such objection was raised in the written statement, in replication filed by him, he instead of offering to pay the rent, denied his liability to pay the same. Even if we were to hold that this promise was not a reciprocal promise, as far as the agreement to sell is concerned, it would definitely mean that Bahadur Singh had failed to perform his part of the contract. There can be no manner of doubt that the payment of rent was an essential term of the contract. Explanation (ii) to Section 16(c) clearly lays down that the plaintiff must prove performance or readiness or willingness to perform the contract according to its true construction. The only construction which can be given to the contract in hand is that Bahadur Singh was required to pay customary rent. 13. Explanation (ii) to Section 16(c) clearly lays down that the plaintiff must prove performance or readiness or willingness to perform the contract according to its true construction. The only construction which can be given to the contract in hand is that Bahadur Singh was required to pay customary rent. 13. Explanation (ii) to Section 16(c) of the Specific Relief Act lays down that it is incumbent on the party, who wants to enforce the specific performance of a contract, to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract. Thus the plaintiff miserably failed to do insofar as payment of rent is concerned. 14. A perusal of Section 20 of the Specific Relief Act clearly indicates that the relief of specific performance is discretionary. Merely because the plaintiff is legally right, the court is not bound to grant him the relief. True it is, that the court while exercising its discretionary power is bound to exercise the same on established judicial principles and in a reasonable manner. Obviously, the discretion cannot be exercised in an arbitrary or whimsical manner. Sub-clause (c) of sub-section (2) of Section 20 provides that even if the contract is otherwise not voidable but the circumstances make it inequitable to enforce specific performance, the court can refuse to grant such discretionary relief. Explanation (2) to the section provides that the hardship has to be considered at the time of the contract, unless the hardship is brought in by the action of the plaintiff. 44. The Hon'ble Apex Court, in the case of N.P.Thirugnanam (dead) by LRs vs. Dr.R.Jagan Mohan Rao and others, (1995) 5 SCC 115 , at paragraph 5, held as under: 5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act, 1963 (for short "the Act"). Under Section 20, the court is not bound to grant the relief just because there was a valid agreement of sale. Under Section 20, the court is not bound to grant the relief just because there was a valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his 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. 45. The Hon'ble Apex Court, while considering the provisions of Section 16(c) and of the Specific Relief Act, 1963 and Section 28 of the Contract Act, in the case of Ravi Setia vs. Madan Lal and others, (2019) 9 SCC 381 , at paragraphs 10, 11 and 16, held as under: 10. The grant of relief for specific performance under Section 16(1)(c) of the Act is a discretionary and equitable relief. Under Section 16(1)(c), the plaintiff has to demonstrate readiness and willingness throughout to perform his obligations under the contract. The plea that the amount would lie in the bank without interest is unfounded and contrary to normal banking practice. The grant of relief for specific performance under Section 16(1)(c) of the Act is a discretionary and equitable relief. Under Section 16(1)(c), the plaintiff has to demonstrate readiness and willingness throughout to perform his obligations under the contract. The plea that the amount would lie in the bank without interest is unfounded and contrary to normal banking practice. To our mind, this is sufficient evidence of the incapacity or lack of readiness and willingness on part of the plaintiff to perform his obligations. Undoubtedly, the time for deposit could be extended under Section 28 of the Act. But the mere extension of time for deposit does not absolve the plaintiff of his obligation to demonstrate readiness and willingness coupled with special circumstances beyond his control to seek such extension. The plaintiff did not aver in the application that he was ready and willing to perform his obligations and was prevented from any special circumstances from doing so. The pendency of an appeal by the defendant did not preclude the plaintiff from depositing the amount in proof of his readiness and willingness. Readiness has been interpreted as capacity for discharge of obligations with regard to payment. The High Court has rightly observed that there was no stay by the appellate court of the decree under appeal to justify non-deposit during the pendency of the appeal. The grant of extension of time cannot ipso facto be construed as otherwise demonstrating readiness and willingness on part of the plaintiff. The plaintiff was required to plead sufficient, substantial and cogent grounds to seek extension of time for deposit because otherwise it becomes a question of his conduct along with all other attendant surrounding circumstances in the facts of the case. We therefore find no infirmity in the order of the High Court concluding that the plaintiff in the facts and circumstances was not ready and willing to perform his obligations. 11. In V.S. Palanichamy Chettiar Firm v. C. Alagappan, (1999) 4 SCC 702 , it was observed as follows: (SCC pp. 709-10, para 17) "17. The agreement of sale was entered into as far back on 16-2-1980, about 19 years ago. No explanation is forthcoming as to why the balance amount of consideration could not be deposited within the time granted by the Court.... 709-10, para 17) "17. The agreement of sale was entered into as far back on 16-2-1980, about 19 years ago. No explanation is forthcoming as to why the balance amount of consideration could not be deposited within the time granted by the Court.... Merely because a suit is filed within the prescribed period of limitation does not absolve the plaintiff vendee from showing as to whether he was ready and willing to perform his part of the agreement and if there was nonperformance, was that on account of any obstacle put by the vendor or otherwise. Provisions to grant specific performance of an agreement are quite stringent. Equitable considerations come into play. The court has to see all the attendant circumstances including if the vendee has conducted himself in a reasonable manner under the contract of sale.... It is not the case of the respondent decree-holders that on account of any fault on the part of the vendor judgment-debtor, the amount could not be deposited as per the decree.... That apart, no explanation whatsoever is coming from the respondent decree-holders as to why they did not pay the balance amount of consideration... Equity demands that discretion be not exercised in favour of the respondent decree-holders and no extension of time be granted to them to comply with the decree." 16. In view of the discussion, we arrive at the conclusion that the plaintiff failed to prove readiness and willingness to perform its obligations under the agreement for sale. We are of the considered opinion that there is no merit in the present appeal. However, in the peculiar facts and circumstances of the case, we are of the considered opinion that the respondent is not entitled to retain the earnest money and it shall be refunded to the appellant without interest within a period of one month failing which it shall carry interest @ 7%. 46. The Hon'ble Apex Court, while considering the provisions of Section 16(c) and of the Specific Relief Act, 1963, in the case of C.S. Venkatesh vs. A.S.C.Murthy, (2020) 3 SCC 280 , at paragraphs 15, 18 and 21, held as under: 15. The next question for consideration is in relation to compliance of Section 16(c) of the Act by the plaintiff. The Hon'ble Apex Court, while considering the provisions of Section 16(c) and of the Specific Relief Act, 1963, in the case of C.S. Venkatesh vs. A.S.C.Murthy, (2020) 3 SCC 280 , at paragraphs 15, 18 and 21, held as under: 15. The next question for consideration is in relation to compliance of Section 16(c) of the Act by the plaintiff. Though a question was raised before the trial court that there are no pleadings as regards the plaintiff's readiness and willingness to perform the contract, the trial court has rightly held that there is sufficient compliance of Section 16(c) of the Act to the extent of pleadings. Therefore, the question to be considered is whether the plaintiff was ready and willing to perform his part of the contract. 18. In Pushparani S. Sundaram v. Pauline Manomani James, (2002) 9 SCC 582 , this Court has held that inference of readiness and willingness could be drawn from the conduct of the plaintiff and the totality of circumstances in a particular case. It was held thus: (SCC p. 584, para 5) "5. ... So far these being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining the first of the two circumstances, how could mere filing of this suit, after exemption was granted be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved." 21. In the instant case, the plaintiff has alleged that he was ready to pay Rs 35,000 to the defendants and called upon them to execute the re-conveyance deed. However, in para 11 of the plaint it is pleaded that the plaintiff was running contract business wherein he suffered heavy loss and as such he gave up the business. In the instant case, the plaintiff has alleged that he was ready to pay Rs 35,000 to the defendants and called upon them to execute the re-conveyance deed. However, in para 11 of the plaint it is pleaded that the plaintiff was running contract business wherein he suffered heavy loss and as such he gave up the business. It is also pleaded that at present the plaintiff has no business or profession and has no source of income. He has no property, either movable or immovable. Mere plea that he is ready to pay the consideration, without any material to substantiate this plea, cannot be accepted. It is not necessary for the plaintiff to produce ready money, but it is mandatory on his part to prove that he has the means to generate the consideration amount. Except the statement of PW 1, there is absolutely no evidence to show that the plaintiff has the means to make arrangements for payment of consideration under the reconveyance agreement. 47. Admittedly in the present case, there is no averment in the plaint and in the evidence of P.Ws.1 and 2 that plaintiffs have any documentary evidence to prove that they were always ready and willing to perform their part of contract. Therefore, in the absence of any pleadings, the relief not founded on the pleadings cannot be granted and no evidence is permissible to be taken on record in the absence of pleadings and no parity can be permitted to travel beyond their pleadings and that all necessary facts should be pleaded in support of the case set up by the plaintiffs. 48. In the very judgment relied upon by the learned counsel for the plaintiffs/respondents in the case of Union of India vs. Ibrahim Uddin and another, (2012) 8 SCC 148 , at paragraphs 77 and 78, it is held as under: 77. This Court while dealing with an issue in Kalyan Singh Chouhan v. C.P. Joshi, (2011) 11 SCC 786 : (2011) 4 SCC (Civ) 656 : AIR 2011 SC 1127 ] , after placing reliance on a very large number of its earlier judgments including Trojan & Co. This Court while dealing with an issue in Kalyan Singh Chouhan v. C.P. Joshi, (2011) 11 SCC 786 : (2011) 4 SCC (Civ) 656 : AIR 2011 SC 1127 ] , after placing reliance on a very large number of its earlier judgments including Trojan & Co. v. Nagappa Chettiar, (1953) AIR SC 235 ] , Om Prakash Gupta v. Ranbir B. Goyal, (2002) 2 SCC 256 [ AIR 2002 SC 665 ] , Ishwar Dutt v. Collector (LA), (2005) 7 SCC 190 [ AIR 2005 SC 3165 ] and State of Maharashtra v. Hindustan Construction Co. Ltd., (2010) 4 SCC 518 [ (2010) 2 SCC (Civ) 207 : AIR 2010 SC 1299 ], held that relief not founded on the pleadings cannot be granted. A decision of a case cannot be based on grounds outside the pleadings of the parties. No evidence is permissible to be taken on record in the absence of the pleadings in that respect. No party can be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. It was further held that where the evidence was not in the line of the pleadings, the said evidence cannot be looked into or relied upon. 78. In Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491 [(2009) 5 SCC (Civ) 927 : AIR 2009 SC 1103 ] this Court held that a case not specifically pleaded can be considered by the court unless the pleadings in substance contain the necessary averments to make out a particular case and issue has been framed on the point. In the absence of pleadings, the court cannot make out a case not pleaded, suo motu. 49. Admittedly, in the present case, plaintiffs failed to produce any proof/documentary evidence to show their financial capacity to pay the balance sale consideration of Rs. 12,18,750/-, in terms of the contract and failed to prove their case as contemplated under Section 16(c) of the Specific Relief Act, 1963 and the said judgment relied upon by the learned counsel for the respondents/ plaintiffs has no application to the facts and circumstances of the present case. 50. 12,18,750/-, in terms of the contract and failed to prove their case as contemplated under Section 16(c) of the Specific Relief Act, 1963 and the said judgment relied upon by the learned counsel for the respondents/ plaintiffs has no application to the facts and circumstances of the present case. 50. Though learned counsel for the respondents/ plaintiffs relied on the dictum of the Hon'ble Supreme Court in the case of Zarin Siddiqui vs. A. Ramalingam alias R .Amarnathan, (2015) AIR SC 580 , to the effect that the relief of specific performance is discretionary, the conduct of parties is relevant for consideration for grant or refusing specific performance. Learned counsel for the respondents/plaintiffs also relied on the judgment of the Hon'ble Supreme Court in the case of Beemaneni Maha Lakshmi vs. Gangumalla Appa Rao (since dead) by LRs, (2019) AIR SC 3013 , to contend that plaintiffs have deposited the balance sale consideration within the time stipulated in the decree passed by the Trial Court and therefore, in view of the aforesaid judgment, the decree passed by the Trial Court has to be confirmed by dismissing the present appeal. The said contention cannot be accepted, because the dictum relied upon by the plaintiffs was a case where during pendency of the suit for specific performance, there was a direction by the Trial Court directing the plaintiffs to deposit the balance sale consideration to verify the bonafide and the plaintiff deposited the said amount during pendency of the suit. Therefore, the Hon'ble Supreme Court confirmed the decree passed by the Trial Court confirmed by the High Court. Admittedly, in the present case, from the date of agreement to sell till decreeing of the suit, plaintiffs have not produced any material documents to prove before the Court that they are having financial capacity to pay the balance sale consideration of Rs. 12,18,750/-. Merely because the plaintiffs deposited the balance sale consideration within the time stipulated in the decree cannot be a ground to hold that the plaintiffs fulfilled the ingredients of the provisions of Section 16(c) Explanation 1 and 2 of the Specific Relief Act, 1963. Therefore, the said judgments have no application to the facts and circumstances of the present case. 51. Therefore, the said judgments have no application to the facts and circumstances of the present case. 51. For the reasons stated above, the first point raised for consideration in the present appeal has to be answered in the negative holding that the plaintiffs failed prove that they were always ready and willing to perform their part of the contract by producing proof of documentary evidence to pay balance sale consideration to the defendant. Accordingly, the second point is answered in the negative holding that the Trial court is not justified in decreeing the suit of the plaintiffs to enforce the agreement of sale dated 29.03.2006. The third point is answered in the affirmative holding that the defendant has made out a case to interfere with the impugned judgment and decree passed by the Trial Court, in exercise of appellate powers of this Court under Section 96 of the Code of Civil Procedure and plaintiffs are not entitled to the relief of specific performance under the provisions of Section 16(c) of the Specific Relief Act, 1963. VIII. RESULT 52. In view of the above, we pass the following: ORDER: (i) The Regular First Appeal filed by the appellant/defendant is allowed. (ii) The impugned judgment and decree dated 20.11.2012 made in O.S.No.265/2007 on the file of the Senior Civil Judge, Doddaballapura, decreeing the suit of the plaintiffs for the relief of Specific Performance is hereby set-aside. (iii) The appellant/defendant is hereby directed to refund Rs. 3,00,000/- with interest at 6% per annum from the date of agreement till realization, to the plaintiffs. (iv) No order as to costs.