JUDGMENT : (Prayer: Appeal filed under Order XLI Rule 1 and Section 96 C.P.C., against the Judgment and Decree dated 14.03.2018 in O.S.No. 268 of 2016 on the file of III Additional District Court, Salem.) 1. The defendant in O.S.No. 268 of 2016 on the file of the III Additional District Court, Salem is the appellant herein. 2. O.S.No. 268 of 2016 had been filed by the respondent seeking specific performance of an agreement of sale dated 29.09.2014 which had been entered into between the respondent and the appellant herein. 3. On consideration of the evidence adduced, by Judgment dated 14.03.2018, the suit was decreed. Questioning such decree, the defendant had filed the present First Appeal. 4. For the sake of convenience, the parties shall be referred to as they were referred before the trial Court, namely, as plaintiff and defendant. The appellant was the defendant and the respondent was the plaintiff. 5. In the plaint, it had been contended that the property, namely, land and building measuring 2551 sq.ft., in Patta No. 152, S.No. 4.54, Dadagapatti Village, Salem, belonged to the defendant, who was the beneficiary of a registered Gift Deed dated 26.06.2009 registered as Document No. 3513 of 2009 on the file of Dadhagapatti Sub Registrar Office. Subsequently, on 29.09.2014, the defendant had agreed to sell the suit property to the plaintiff for a total consideration of Rs.22/- lakhs and a registered agreement of sale had been entered into between the plaintiff and the defendant and the document had been registered as Document No. 5009 of 2014 in the Office of the Sub Registrar, Dadagapatti. 6. It is further claimed that on the very same day, ie., on 29.09.2014, the defendant had received a sum of Rs.4/- lakhs as advance. The defendant also handed over copy of the title deed of the property to the plaintiff. Among other terms in the agreement, the defendant had also agreed to receive the balance sale consideration of Rs.18/- lakhs from the plaintiff within a period of 11 months and execute the sale deed and surrender the possession. The plaintiff had paid a further advance amount of Rs.16/- lakhs on 30.09.2014 in the presence of a Notary Public at Salem and a receipt was also issued by the defendant. The plaintiff was due and liable to pay only a sum of Rs.2/- lakhs out of the total sale consideration of Rs.22/- lakhs. The plaintiff had paid a further advance amount of Rs.16/- lakhs on 30.09.2014 in the presence of a Notary Public at Salem and a receipt was also issued by the defendant. The plaintiff was due and liable to pay only a sum of Rs.2/- lakhs out of the total sale consideration of Rs.22/- lakhs. 7. The plaintiff claimed that he was always ready and willing to perform his part of the agreement but the defendant did not come forward to receive the balance sale consideration. There was a very specific plea that the plaintiff had approached the defendant on 20.08.2015 asking her to receive the balance sale consideration. Again the plaintiff reiterated the plea on 28.10.2015 with the same request. The plaintiff was then constrained to issue a legal notice on 15.12.2015 stating that the plaintiff would be waiting in the Sub Registrar Office at Dadhagapatti on 28.12.2015 with the balance sale consideration and intimating to the defendant that she should come over to the Sub Registrar Office on that day to receive the balance sale consideration and execute the sale deed in favour of the plaintiff. The defendant received the legal notice and sent a reply on 22.12.2015 denying execution of the agreement of sale and claiming that she had received only a sum of Rs.4/- lakhs from the plaintiff and requesting the plaintiff to grant three months time to settle the issues. The plaintiff therefore kept quite for sometime. 8. The defendant then issued a notice on 20.09.2016 wherein she stated that she had received a sum of Rs.4/- lakhs alone and she called upon the plaintiff to execute his part of the contract. The plaintiff sent a reply on 23.09.2016, again calling upon the defendant to receive the balance sale consideration of Rs.2/- lakhs and to execute the sale deed in favour of the plaintiff and to surrender possession. 9. Claiming that the defendant was trying to create encumbrances over the property to the disadvantage of the plaintiff, the suit had been filed seeking specific performance of the agreement of sale and also for permanent injunction restraining the defendant from alienating or encumbering the suit property. The plaintiff also sought an alternate prayer for return of the advance amount of Rs.20/- lakhs together with interest. 10. The plaintiff also sought an alternate prayer for return of the advance amount of Rs.20/- lakhs together with interest. 10. In the written statement, the defendant stated that she had received a sum of Rs.4/- lakhs as loan from the plaintiff and an agreement of sale had been executed only as security for the said loan. The defendant specifically denied that she received any further advance of Rs.16/- lakhs on 30.09.2014. It had been stated that there is no endorsement to that effect in the agreement of sale. It was also stated that the contention that the plaintiff was always ready and willing to perform his part of the contract was false. It was stated that the suit was filed after a lapse of two years and it should be presumed that the plaintiff was not ready and willing to execute his part of agreement of sale. It was stated that the suit should be dismissed. 11. On the basis of the pleadings, the learned trial Judge framed the following issues:- “1. Whether the plaintiff is entitled for the relief of specific performance as prayed for? Or Whether the plaintiff is entitled for the relief of alternative relief as prayed for? 2. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? 3. Whether the sale agreement is executed for the security of loan transaction?; 4. Whether the receipt and endorsement made on the sale agreement is true and genuine? 5. To what other relief?” 12. During trial, the plaintiff examined two witnesses/the plaintiff himself and one Parthiban, who signed as a witness in Ex.A-1 and Ex.A-2. The defendant examined her husband Thangaraj as DW-1, who was also a witness in Exs. A-1 and A-2. The plaintiff marked Exs. A-1 to A-6 which included the agreement of sale as Ex.A-1, the receipt for payment of Rs.16/- lakhs as A2, the copy of the notices as A-3, the copy of the notice issued on behalf of the defendant as A-4, the copy of Advocate’s notice issued on behalf of the defendant as A-5, and the copy of the reply to the said notice issued on behalf of the plaintiff as A-6. 13. 13. While considering, the pleadings and the evidence, the learned III Additional District Judge, Salem, had taken note of the admission of DW-1 wherein he had stated that the defendant had not executed the sale deed in accordance with Ex.A-1 agreement of sale and that in spite of several demands, such sale deed was not executed by the defendant. The learned III Additional District Judge held that contradictory statements were given in Ex.A-5 notice sent by the counsel on behalf of the defendant. It was also held that the agreement stood proved and that there was also an admission of execution of the said agreement and also that the plaintiff was ready and willing to pay the balance amount. The learned Additional District Judge rejected the case of the defendant that the agreement had been entered into only as a security for loan received. The learned Judge therefore held in favour of the plaintiff declaring that the plaintiff was entitled for specific performance as prayed for and had therefore, decreed the suit however without costs. 14. Questioning such Judgment, the defendant is in appeal before this Court. 15. The points which arise for consideration under Order 41 Rule 30 of CPC are:- (i) Whether the trial Court was right in decreeing the suit for specific performance holding that the agreement of sale stood proved? (ii) Whether the trial Court was right in granting specific performance by holding that the plaintiff was ready and willing to perform his part of the agreement? (iii) Whether the plaintiff is entitled for the relief of specific performance or whether alternate relief of return of the advance amount should be granted? 16. Heard Mr. R.Nalliyappan, learned counsel for the appellant/defendant and Mr.K.S.Karthik Raja, learned counsel for the respondent/plaintiff. 17. The facts are quite simple and straight forward. There is no dispute that the defendant was the owner of the property aforementioned. Therefore, competency of the defendant to enter into any agreement vis-a-vis the property cannot be questioned or raised. 18. It is the claim of the plaintiff that the defendant had entered into an agreement of sale to sell the suit property for a total consideration of Rs.22/- lakhs. The said agreement of sale dated 29.09.2014 had also been registered as Document No. 5009 of 2014 on the file of the Dadhagapatti Sub Registrar Office. 18. It is the claim of the plaintiff that the defendant had entered into an agreement of sale to sell the suit property for a total consideration of Rs.22/- lakhs. The said agreement of sale dated 29.09.2014 had also been registered as Document No. 5009 of 2014 on the file of the Dadhagapatti Sub Registrar Office. The fact of registration of the agreement of sale again disputed with denial by the defendant. The agreement of sale had been marked as Ex.A-1. 19. It is the contention of the defendant that the defendant borrowed a sum of Rs.4/- lakhs and towards security, the agreement of sale had been entered into. If this be the case, then the defendant should admit receipt of the said sum of Rs.4/- lakhs from the plaintiff. In the agreement of sale itself, there is mention of the sum of Rs.4/- lakhs. The defendant cannot rely on a particular statement in the agreement of sale and admit receipt of a sum of Rs.4/- lakhs and hold out that it was not towards the agreement or towards part consideration for the sale of the house since those facts are also stated in the very same agreement. It had been very clearly stated in Ex.A-1 that the total consideration for the sale is Rs.22/- lakhs and that towards part payment of such Rs.22/- lakhs, the defendant had received a sum of Rs.4/- lakhs. It was also stated that within a period of 11 months, the balance sale consideration would be paid. There was also a further covenant that if the plaintiff did not come forward to pay the sale consideration then the advance amount of Rs.4/- lakhs shall stand forfeited. These covenants have not been denied by the defendant. 20. On the other hand, DW-1/husband of the defendant during his cross examination had admitted as follows:- “TAMIL” 21. For reasons best known to the defendant alone, she did not graze the witness box. She had not come forward to subject herself for cross examination. On the other hand, her husband was examined. It is no doubt true that as between spouses, one is competent to let in evidence on behalf of the other, as per Section 126 of the Evidence Act. However, when the defendant was the signatory to an agreement, it would only be appropriate that she speaks and comes forward to adduce evidence on oath. It is no doubt true that as between spouses, one is competent to let in evidence on behalf of the other, as per Section 126 of the Evidence Act. However, when the defendant was the signatory to an agreement, it would only be appropriate that she speaks and comes forward to adduce evidence on oath. She had not done so. The admissions of DW-1/her husband is binding on her. He had very clearly stated that he had also signed as witness in the agreement Ex.A-1. He admitted that he signed the document knowing that it was an agreement of sale. He admitted that the signature in the receipt Ex.A-2 was of his wife and that the photographs therein was also of his wife /defendant and that his wife did not execute the sale deed in accordance with the covenants in Ex.A-1 and that she did not execute the sale deed inspite of the fact that the plaintiff had asked her to execute the sale deed. These admissions establish execution of the agreement of sale, admission of the receipt of further advance, admission that specific performance was not done by the defendant and further admission that specific performance was not done inspite of requests by the plaintiff. It must also be stated that DW-1 had also signed as a witness in Ex.A-2. 22. In view of these facts, there is only one conclusion that could be reached, namely, that the agreement of sale is an agreement of sale and is not a security for any loan advanced. Therefore, it has to be further concluded that it had been executed with consensus ad ideum and is binding on the defendant. The plaintiff through his evidence had also established that he was also ready and willing and on the other hand, it was the defendant, who had avoided performance of the terms of the agreement. 23. The learned counsel for the appellant/defendant placed reliance on the Judgment of a learned Single Judge of this Court reported in 2017 (3) MWN (Civil) 185 [G.Kasi Reddiyar and others Vs. K.Ravi]. In that particular case, the plaintiff had entered into an agreement of sale to purchase the suit property and had also paid advance. He had further agreed to pay the balance sale consideration within a period of three months. K.Ravi]. In that particular case, the plaintiff had entered into an agreement of sale to purchase the suit property and had also paid advance. He had further agreed to pay the balance sale consideration within a period of three months. The legal notice to execute a sale deed was issued after one year and the suit for specific performance was subsequently filed. The Trial Judge held that the plaintiff was ready and willing and had decreed the suit for specific performance. 24. It was however found by the learned Single Judge in the Appeal that no written demand was made within the time stipulated in the agreement of sale. It was also found that the witness examined to prove readiness and willingness had stated beyond the pleadings and the evidence of the plaintiff. It was therefore held that the time fixed under agreement has to be given importance and the limitation fixed under the Limitation Act is only an upper limit. The Judgment and Decree granting specific performance was set aside. It had been observed as follows by the learned Single Judge:- “8. ...............The delay is nearly one year and six months from the date of the agreement till date of the suit. In a recent pronouncement of the Hon’ble Supreme Court in Padma Kumari & Others .vs. Dasayyan & Others reported in 2015 (8) SCC 695 , it has been pointed out that the time fixed under the agreement should be given some importance. These observations have been made after having considered, the general law that time is not the essence of the contract in respect of agreements relating to immovable properties. In Saradamani Kandappan .vs. S.Rajalakshmi and others, reported in 2011 (4) CTC 640 (SC), the Hon’ble Supreme Court had observed that the period of three years fixed under Article 54 of the Limitation Act is only an outer time limit, but that does not by itself absolve the plaintiff from proving his readiness and willingness throughout that is from the date of the agreement till date of the sale or filing of the suit. Infact, the Hon’ble Supreme Court had reiterated the observations in K.S.Vaidyanadam and others .vs. Vairavan, reported in 1997 (1) CTC 628 (SC) wherein, the Hon’ble Supreme Court has observed as follows: “Every Suit for Specific Performance need not be decreed merely because it is filed within the period of limitation by ignoring the time-limits stipulated in the Agreement. Court will also ‘frown upon Suits which are not tiled immediately after the breach/refusal. The fact that limitation is three years does not mean a purchaser can wait for 1 or 2 years to file a Suit and obtain Specific Performance. The three year period is intended to assist purchasers in special cases, as for example, where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser.” [emphasis supplied] In view of the above principles laid down by the Hon’ble Supreme Court and the total lack of evidence on the side of the plaintiff regarding readiness and willingness on his part I am constrained to hold that the plaintiff is not entitled to relief of the Specific Performance.” 25. The learned counsel for the plaintiff however relied on a Judgment of the Hon’ble Supreme Court reported in (2019) 8 SCC 62 [R.Lakshmikantham Vs. Devaraji], wherein the Hon’ble Supreme Court, reversing the Judgment of learned Single Judge of Madras High Court in S.A.No. 592 of 2011 Judgment dated 03.02.2017 [Devaraj Vs. R.Lakshmikantham] held as follows:- “11. The High Court order is not correct in stating that readiness and willingness cannot be inferred because the letters dated 18.12.2002 and 19.12.2002 had not been sent to the defendant. The High Court also erred in holding that despite having the necessary funds, the plaintiff could not be said to be ready and willing. In the aforesaid circumstances, the High Court was also incorrect in putting a short delay in filing the Suit against the plaintiff to state that he was not ready and willing. In India, it is well settled that the rule of equity that exists in England, does not apply, and so long as a Suit for specific performance is filed within the period of limitation, delay cannot be put against the plaintiff -See Mademsetty Satyanarayana v. G. Yelloji Rao and others AIR 1965 Supreme Court 1405 (paragraph 7) which reads as under: “(7) Mr. Lakshmaiah cited a long catena of English decisoins to define the scope of a Court’s discretion. Before referring to them, it is necessary to know the fundamental difference between the two systems-English and Indian-qua the relief of specific performance. In England the relief of specific performance pertains to the domain of equity; in India, to that of statutory law. In England there is no period of limitation for instituting a suit for the said relief and, therefore, mere delay -the time lag depending upon circumstances - may itself be sufficient to refuse the relief; but, in India mere delay cannot be a ground for refusing the said relief, for the statute prescribes the period of limitation. If the suit is in time, delay is sanctioned by law; if it is beyond time, the suit will be dismissed as barred by time; in either case, no question of equity arises.”[Emphasis Supplied] 26. In the instant case, one fact which has to be taken in to consideration is Ex.A-2, dated 30.09.2014 wherein the defendant had very categorically admitted to the agreement and had received a further advance of Rs.16/- lakhs referring to Ex.A-1, the registered agreement of sale and affirming to abide by the covenants thereto. This receipt had been admitted by DW-1. The second witness to the said document A.Parthiban was examined as PW-2. Both the witnesses have affirmed and acknowledged both Ex.A-1 and Ex.A-2. Therefore, it is clear that the defendant had entered into the agreement of sale, Ex.A-1. 27. In the written statement, there is no denial of the specific assertion in the plaint that the plaintiff had repeatedly demanded, and two specific dates have been given of execution of sale deed. Therefore under Order VIII Rule 5 CPC, it should be taken as an admission of fact. Moreover, as pointed out and as extracted above, DW-1 himself admitted that the defendant had not come forward to execute the sale deed though demanded by the plaintiff. The demands of the plaintiff show readiness and willingness. The balance sale consideration is only Rs.2/- lakhs. The total sale consideration was Rs.22/- lakhs. Therefore, the issue that the plaintiff did not file the suit within the period stipulated in the agreement will not hold water since the suit was instituted within the time specified under the Limitation Act, 1963. 28. The balance sale consideration is only Rs.2/- lakhs. The total sale consideration was Rs.22/- lakhs. Therefore, the issue that the plaintiff did not file the suit within the period stipulated in the agreement will not hold water since the suit was instituted within the time specified under the Limitation Act, 1963. 28. In view of the all reasons above, the points framed for consideration are answered that the Trial Court was correct in holding Ex.A-1 was proved, that the plaintiff was ready and willing to perform his part of the agreement and in decreeing the suit for specific performance. 29. I find no reason to interfere with the conclusion reached by the learned III Additional District Court, Salem. The Appeal is dismissed with costs.