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2022 DIGILAW 981 (MAD)

Thangapandain v. R. Gunaseelan

2022-04-21

R.THARANI

body2022
JUDGMENT (Prayer: This Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree, dated 23.09.2014, made in A.S.No. 17 of 2014, on the file of the II Additional District and Sessions Judge, Thoothukudi, confirming the judgment and decree, dated 05.02.2013, made in O.S.No.178 of 2011, on the file of the Subordinate Judge, Thoothukudi.) 1. This second appeal has been filed against the order, dated 23.09.2014, in A.S.No. 17 of 2014 on the file of the II Additional District and Sessions Court, Thoothukudi, confirming the judgment and decree, dated 05.02.2013, passed in O.S.No.178 of 2011 on the file of the Sub Court, Thoothukudi. The appellant herein is the first defendant, the first respondent herein is the plaintiff and the second respondent herein is the second defendant in the original suit. 2. The first respondent herein/plaintiff has filed a suit for permanent injunction in O.S.No.178 of 2011 on the file of the Sub Court, Thoothukudi. The suit was allowed by the trial Court. Against which, the appellant herein/first defendant has filed an appeal in A.S.No.17 of 2014, on the file of the II Additional District and Sessions Court, Thoothukudi. That appeal was dismissed by the first appellate Court. Against which, the appellant herein/first defendant has filed the present second appeal. 3. Brief substance of the plaint, in O.S.No.178 of 2011, is as follows: 3.1. The suit properties belonged to the first defendant. The first defendant agreed to sell the property for a sum of Rs.60,000/- per acre. The rate for 15.71 acres was fixed as Rs.9,42,600/-. On 14.09.1994, the first defendant received a sum of Rs.50,000/- as advance and he has executed a sale agreement. On 20.10.1994, the first defendant received a sum of Rs. 7,50,000/- towards further payment and handed over the patta, Encumbrance Certificate and other documents, except the documents that were kept in the Bank. When ever the plaintiff approached the first defendant, the first defendant promised to execute the sale deed after repaying the Bank loan. When the first defendant tried to sell the property to third persons, the plaintiff issued a paper publication on 04.03.2008. The first defendant issued a reply paper publication on 08.03.2008. 3.2. Later, the plaintiff came to know that the second defendant filed a suit against the first defendant in O.S.No.7 of 2000 and the same is pending before the Sub Court, Thoothukudi. The first defendant issued a reply paper publication on 08.03.2008. 3.2. Later, the plaintiff came to know that the second defendant filed a suit against the first defendant in O.S.No.7 of 2000 and the same is pending before the Sub Court, Thoothukudi. The plaintiff came to know that the first defendant executed another sale agreement in favour of one Stephen Munindran, suppressing the earlier sale agreement in favour of the plaintiff. The said Stephen Munindran filed a suit against the first defendant in O.S. No.33 of 2008. The plaintiff is reserving his right to redeem the mortgage, dated 15.09.1994. The plaintiff is always ready and willing to perform his part of the Contract. The plaintiff sent an advocate notice on 29.08.2008. The first defendant sent a reply notice on 11.09.2008 with false particulars. Copy of the notice was served on the second defendant. There was no reply from the second defendant. The suit was filed for a prayer of specific performance and for a prayer of injunction not to alienate the property to any other third person. 4. Brief substance of the written statement filed by the first defendant, in O.S.No.178 of 2011, is as follows:- 4.1. It is wrong to state that the first defendant agreed to sell the property to the plaintiff for a sum of Rs.9,42,600/- and that he had executed a sale agreement on 14.09.1994. It is wrong to state that on 20.10.1994, the first defendant received part payment towards further advance on the sale agreement. There is no necessity for the first defendant to sell the property. Already the property was mortgaged with the Indian Overseas Bank and the Bank has filed a suit against the first defendant. It is true that the first defendant executed a sale agreement in favour of one Stephen Munindran and he filed a suit and has obtained a decree for refund of the advance amount. There is no necessity for the first defendant to execute a sale agreement in favour of the plaintiff. The first defendant has borrowed a sum of Rs. 50,000/- on 15.09.2004 from the plaintiff for agricultural expenses and executed a registered mortgage deed on that date. At the time of registration of the mortgage deed., the plaintiff obtained the signature of the first defendant in a blank letter pad paper and in blank stamp papers. The first defendant has borrowed a sum of Rs. 50,000/- on 15.09.2004 from the plaintiff for agricultural expenses and executed a registered mortgage deed on that date. At the time of registration of the mortgage deed., the plaintiff obtained the signature of the first defendant in a blank letter pad paper and in blank stamp papers. Using those papers, after a lapse of 14 years, the plaintiff has created a sale agreement and has filed this suit. 4.2. Suit properties are worth more than One Crore. If at all the plaintiff paid 80% of the sale amount in the year 1994 itself, the plaintiff might have paid Rs.2,34,000/- and would have redeemed the mortgage. The plaintiff failed to redeem the mortgage. The plaintiff has not taken any steps for execution of the sale deed from the year 1994 till 2008. The prayer is time barred. The first defendant sent a telegram on 07.03.2008, calling for production of the certified copies of documents fraudulently obtained by the plaintiff from the first defendant. The first defendant lodged a complaint before the Superintendent of Police, Thoothukudi, on 13.03.2008. Stephen Munindran is a necessary party to the suit. The suit is to be dismissed. 5. Brief substance of the written statement filed by the second defendant, in O.S.No.178 of 2011, is as follows:- 5.1. On 12.03.1992, the first defendant obtained an agricultural loan of Rs.1,92,000/- from the second defendant. The first defendant executed a pronote and one Thanasingh was a surety for the said loan. The first defendant agreed to repay the loan amount in monthly instalments at Rs. 38,400/- per month with interest. On 12.03.1992, the first defendant executed a hypothecation deed in favour of the Bank along with surety. The first defendant and the surety executed a letter in favour of the second defendant, confirming the conditions of the loan agreement. On 27.12.1991, the first defendant deposited the title deeds with the second defendant, with an intention to create a mortgage loan. On 28.12.1991, the first defendant confirmed the equitable mortgage on deposit of title deeds. 5.2. The first defendant executed a revival letter on 05.03.1995, on 07.05.1996 and on 26.04.1999. The first defendant sent letters on 14.10.1998 and on 14.07.1999, confirming the loan transactions. Since loan was not settled, the second defendant filed a suit in O.S.No.7 of 2000 on the file of the Sub Court, Thoothukudi. 5.2. The first defendant executed a revival letter on 05.03.1995, on 07.05.1996 and on 26.04.1999. The first defendant sent letters on 14.10.1998 and on 14.07.1999, confirming the loan transactions. Since loan was not settled, the second defendant filed a suit in O.S.No.7 of 2000 on the file of the Sub Court, Thoothukudi. Then, the suit was transferred to the District Court, Thoothukudi. Again, the case was transferred to Sub court, Thoothukudi and the same was taken on file as O.S.No.321 of 2010. The second defendant is having a priority over the property. The sale agreement will not bind the rights of the second defendant. Though the plaintiff has admitted that he is ready to repay the loan amount, he has not taken any steps so far. The Suit is to be dismissed. 6. On the above said pleadings, the following issues were framed by the trial Court: “1. Whether the suit is barred by the limitation? 2. Whether the plaintiff is entitled for a prayer of specific performance? 3. Whether the plaintiff is entitled for a prayer of permanent injunction? 4. What are the other reliefs?” 7. On the side of the plaintiff, 2 witnesses were examined as P.W.1 and P.W.2 and 10 documents were marked as Exs.A1 to A10. On the side of the defendants, 3 witnesses were examined as D.W.1 and D.W.3 and 7 documents were marked as Exs.B1 and B7. After considering the pleadings and evidence, the trial Court decreed and passed a preliminary decree. 8. Against the judgment and decree, the first defendant/appellant herein has preferred an appeal in A.S.No.17 of 2014 before the II Additional District and Sessions Judge, Thoothukudi, on the following grounds:- The trial Court ought to have dismissed the suit based on the oral and documentary evidence adduced on the side of the appellant/1st defendant. The trial Court failed to consider the fact that the plaintiff is not entitled to any relief under the Specific Performance Act as he did not take any steps to execute the sale deed from 1994 till 2009. The trial Court ought to have rejected the sale agreement. The trial Court failed to consider the fact that the plaintiff, taking advantage of the inability of the defendants, has filed the suit. The trial Court failed to consider the fact that the suit is barred by limitation. The trial Court ought to have rejected the sale agreement. The trial Court failed to consider the fact that the plaintiff, taking advantage of the inability of the defendants, has filed the suit. The trial Court failed to consider the fact that the suit is barred by limitation. The trial Court ought to have dismissed the suit for the reason that the plaintiff has filed the suit after a lapse 15 years. The trial Court failed to consider the facts that Exs.A.1 and A.2 were liable to be rejected as they were not written on valid stamp papers and that they were forged and that the market value of the suit properties were not taken into account and that the appellant/1st defendant denied the execution of Exs.A.1 and A.2 and that the plaintiff failed to prove the execution of the said documents through oral and documentary evidence. Further, the trial Court ought to have dismissed the suit for the reason that the plaintiff failed to adduce valid reason for the delay of 15 years and prayed the appeal to be allowed. 9. On the basis of the grounds, the first appellate Court framed the following issue: “Whether the appeal is liable to be allowed or not?” 10. After hearing both sides, the first appellate Court has dismissed the appeal in A.S.No.17 of 2014, by confirming the Judgment and decree of the trial Court. Against which, the first defendant/appellant herein has come forward with this Second Appeal, on the following grounds:- On the side of the appellant/first defendant, it is stated that the plaintiff has deposed that the sale agreement was hand written, whereas, Ex.A1 is a type written agreement and was not hand written. One Sivaperumal, who was alleged to have been present at the time of execution of the agreement was not examined as a witness. Ex.A1 was signed only by the defendant and not signed by the plaintiff and an unilateral agreement is not valid. The plaintiff has failed to take steps for the enforcement of the Contract for the past 14 years. Both the Courts below failed to consider that there is no necessity to execute Ex.B7, if Ex.A1 was already executed. Both the Courts below failed to consider that the stamp paper for the preparation of Ex.A1 and Ex.B7 were purchased on the same date. Both the Courts below failed to consider that there is no necessity to execute Ex.B7, if Ex.A1 was already executed. Both the Courts below failed to consider that the stamp paper for the preparation of Ex.A1 and Ex.B7 were purchased on the same date. The documents (Ex.A1 and Ex.A2) are fabricated documents and the suit itself is barred by limitation. Receipt of consideration mentioned in Ex.A.1 and Ex.A2 were not admitted by the defendant. The plaintiff has failed to establish Ex.A1 and A2, as genuine. 11. This Court, by its order, dated 18.12.2019, has admitted the second appeal on the following substantial questions of law:- “1. Whether the Courts below were right in granting a decree for specific performance despite there being an inordinate delay of 14 years on the part of the plaintiff even in seeking specific performance of the agreement? 2. Whether the plaintiff could be said to have complied with the statutory requirements of Section 16 (c) of the Specific Relief Act. More so, when he has kept quite for over a period of 14 years from the date of agreement, namely, 14.09.1994 till he issued a publication on 08.03.2008 and 04.03.2008 in Thina Thanthi? 3. Whether the Courts below are right in concluding Ex.A1 is true and valid?” Issue No.3: 12. On the side of the appellant/first defendant, it is stated that the contents of Ex.A1 and Ex.A2 was not admitted by the appellant and that there is no necessity for the appellant to have executed Ex.B7, if Ex.A1 was already executed, Ex.A1 and A2 are fabricated documents and that when the appellant was executing Ex.B7, the plaintiff obtained his signatures in blank papers and had used the same for fabricating Ex.A1 and Ex.A2. 13. On the side of the first respondent/plaintiff, it is stated that the signature in Ex.A1 and Ex.A2 were not denied by the first defendant/appellant. The only claim of the first defendant/appellant is that he executed a mortgage deed, on 05.09.1994 and at the time of execution of the mortgage deed, the plaintiff has obtained his signature in blank stamp paper and blank letter pad. The validity of Ex.A1 and Ex.A2 was already decided by both the Courts below and the question raised by the appellant is only a question of fact and that there is no necessity for this Court to re-consider the same. 14. The validity of Ex.A1 and Ex.A2 was already decided by both the Courts below and the question raised by the appellant is only a question of fact and that there is no necessity for this Court to re-consider the same. 14. On the side of the first respondent/plaintiff, it is stated that a person, who signed a document is consenting to the recital in the documents. A judgment of this Court reported in CDJ-2008-MHC-4729 [Chokkammal V. K.Balraj] is cited, wherein, it is stated as follows:- “7. As a measure of sound reasoning, it could be stated that the persons of full age and understanding who subscribe their signatures to a document, cannot be heard to say that they had affixed the signatures on blank papers or that they signed without appraising themselves about the recitals. If they had been so imprudent to affix the signatures in such a fashion, they have to take the consequence for such imprudence. In this case, there is nothing to suspect that the document could have been brought about under vitiating circumstances. The trial Court has found that on a wholesale consideration of evidence that Ex.A3 was true and it has also considered the evidence of witnesses to the transaction viz. the scribe under Ex.A1 and also one of the witnesses Chellappa, who is PW2. The said Chellappa is the witness in Ex.A3. I therefore confirm the finding recorded by the trial Court that Ex.A1 and A3 are true and the defendants have obligated themselves under this document to execute the sale in favour of the plaintiff.” 15. Signature in Ex.A1 and Ex.A2 were not denied. Even in the evidence of first defendant/ appellant, it is admitted that the date mentioned in Ex.A2 was endorsed only by the first defendant/ appellant. If all the documents are signed at the time of execution of a mortgage deed, that is, on 15.09.1994, there was no possibility for the first defendant/appellant to make an endorsement as 20.10.1994, which means Ex.A1 is valid, this question raised by the appellant is a question of facts and not a question of law. This question is not sustainable. Issue Nos.1 and 2: 16. On the side of the appellant/first defendant, it is stated that there is an inordinate delay of 14 years on the part of the plaintiff in filing a suit for specific performance. 17. This question is not sustainable. Issue Nos.1 and 2: 16. On the side of the appellant/first defendant, it is stated that there is an inordinate delay of 14 years on the part of the plaintiff in filing a suit for specific performance. 17. On the side of the appellant, a judgment of the Hon'ble Supreme Court reported in 2013-SAR-Civil-SC-431 [Garree Malikharjuna Rao (D) V. Nalabothu Punniah] is cited, wherein it is stated as follows:- “6. Whatever may be the legal position involved in this case, the facts as pleaded and proved before the courts below, are far from being satisfactory. The respondent/plaintiff who has examined himself as PW-1 has raised mutually inconsistent pleas, as is evident from the pleadings in the plaint wherein he had stated that it has been agreed that the sale deed would be executed within a period of 4 months, however, in his deposition, he has stated that the sale deeds were agreed to be executed only after the expiry of the term of the lease. The agreement to sell has been transcribed on the non-judicial stamp paper, though not registered. Admittedly, the said stamp paper had been purchased 11 months prior to the date mentioned in the agreement for sale. More so, it had been purchased from a different place. Further, there is nothing on record to show as in whose name, the non- judicial stamp paper had been purchased and who had purchased it.” 18. On the side of the appellant, it is stated that the suit was filed after 14 years and is barred by limitation. On the side of the appellant, a judgment of this Court reported in 2018-(3)-MWN- (Civil) 270 [T.R.Murugesan V. S.Balakrishnan] is cited wherein it is stated as follows:- “34. ......For nearly 3 months from the last date fixed for performance of the contract, namely 10.04.2007, the plaintiff has remained silent. Even though he would claim that he had approached the defendant seeking execution of the sale deed, the said claim was not supported by any proof. On receipt of the legal notice, the 1st defendant had sent reply on 27.07.2007 expressly stating that the plaintiff was not ready and willing to perform his part of the contract and he had no resources to pay the balance of sale consideration. 35. On receipt of the legal notice, the 1st defendant had sent reply on 27.07.2007 expressly stating that the plaintiff was not ready and willing to perform his part of the contract and he had no resources to pay the balance of sale consideration. 35. The plaintiff chose to wait for another 3 months to file the suit on 02.11.2007, this sustained inaction on the part of the plaintiff would definitely lead to an inference of the plaintiff was not ready and willing to perform his part of the contract. As pointed out by the Hon’ble Supreme court in various decisions, cited supra, the plaintiff must not only prove his readiness, he should also establish willingness. The proof affidavit of the plaintiff is totally lacking in particulars of the demands made by the plaintiff seeking execution of sale deed and offering to pay the sale consideration.” 19. The following judgments are cited by the learned counsel for the appellant herein/ first defendant:- 1. 2000-3-MLJ-106 [Indravanthi V. Kamala] 2. 2008-3-MLJ-796 [P.Sampoornam V. L.T.Somasundaram] 3. 1996-II—MLJ-199 [K.Saroja V. Valliammal and Ors] 4. 2012-4-CTC-100 [Pappammal @ T.Pappa V. P.Ramasamy] 5. 2018-1-MWN (Civil)-105 [B.Vijaya Bharathi V. P.Savitri] 6. 2017-3-CTC-344 [Ravindran V. Danton Shanmugam] 7. 2017-3-CTC-711 [N.Sundaram V. P.Kamalammal] 8. 2021-4-CTC-330 [M.Kumar V.V.Balan] 9. 2022-SAR (Civil) -86 [K.Karuppuraj V.M.Ganesan] 10. 2018-1-CTC-701 [M.Jayaprakash V. Santhammal] 11. 2018-1-CTC-50 [S.Palanivel V. P.Natesan] 12. 2020-4-CTC-631 [G.Manoharan V.R.Edwin Solomon] 13. 2003-2-CTC-109 [Manjunath Anandappa urf Shivappa Hanasi V.Tammanasa] 20. On the side of the first respondent/plaintiff, it is stated that no time limit was prescribed in Ex.A1- agreement. It was agreed that the first defendant should execute the sale deed, after clearing the mortgage loan with the second defendant. Sofar, the case filed by the second defendant/ Bank against the first defendant/ appellant herein for recovery of mortgage loan is still pending and that the first defendant/ appellant cannot raise this issue at the stage of Second Appeal. 21. On the side of the first respondent/plaintiff, it is stated that when time limit was not prescribed in a document, the date of limitation starts from the date of denial and that on 08.03.2008, the first defendant issued a paper publication, wherein, he denied the agreement and that the case was filed within three years from the date of the paper publication. Copy of the paper publication was marked as Ex.A8. 22. Copy of the paper publication was marked as Ex.A8. 22. On the side of the first respondent/plaintiff, it is stated that in E.A.1 no time limit was prescribed. In Ex.A1 it is stated that sale deed will be executed, after clearing the loan with the second defendant/ Bank and that from Ex.A9 and Ex.A10, it is clear that a suit in O.S.No.54 of 2009 was filed by the second defendant/ Bank against the first defendant/ appellant herein before the Principal District Court, Thoothukudi and that the appellant has not claimed that he has settled the amount and that when time limit was not prescribed, time limit starts from the date of denial, that is from 08.03.2008. 23. On the side of the first respondent herein/plaintiff, it is stated that the available documents were handed over to the plaintiff and that when no date was fixed in the agreement, date of refusal is the date to calculate the time limit and that the first defendant/appellant herein has refused to execute the sale deed on 08.03.2008 through Ex.A8 and that the suit was filed on 18.09.2008, within the time limit. 24. On the side of the first respondent/plaintiff, it is stated that the time limit starts on the date of redemption of mortgage loan or from the date of denial of the sale agreement. on the side of the first respondent herein/ plaintiff, a judgment of the Hon'ble Supreme Court reported in 2019-6-CTC-859 [R.Lakshmikantham V.Devaraji], is cited, wherein, it is stated as follows:- “Order of performance and Interpretation of contract and Agreement to sell requires sale to be completed within three months and subsequent clauses show original title deeds with mortgagee and mortgage yet to be redeemed. Such clauses read together show reciprocal nature of promises. Seller's promise of obtaining title deeds from mortgagee after clearing mortgage, must be performed first. Only then balance sale consideration to be paid by purchaser. Time period of three months stipulated in agreement starts only after redemption of mortgage. Time of three months not of essence.” 25. On the side of the appellant, it is stated that the plaintiff has not complied the requirements of Section 16 (c) of the Specific Relief Act. The plaintiff has failed to prove that he was ready and willing to perform his part of the Contract. 26. Time of three months not of essence.” 25. On the side of the appellant, it is stated that the plaintiff has not complied the requirements of Section 16 (c) of the Specific Relief Act. The plaintiff has failed to prove that he was ready and willing to perform his part of the Contract. 26. On the side of the appellant, it is stated that the plaintiff/first respondent herein, has failed to prove that he is ready and willing to perform his part of the Contract and that the Income tax return was not filed. On the side of the appellant/ first defendant, it is stated that the plaintiff/first respondent herein has failed to prove his readiness and willingness to perform his part of the Contract and that Income Tax returns or Bank statements were not marked to prove the readiness. 27. On the side of the appellant, a judgment of this Court reported in 2017-5-CTC-403 [Babulal Tater V. Harakh Chand J.Golecha]is cited, wherein it is stated as follows:- 23. The Law relating to readiness and willingness in suits for specific performance has been the subject matter of several decisions. But in the recent past the Hon'ble Supreme Court, has held that the plaintiff in a suit for specific performance should show that he was always ready and willing to perform his part of the contract and even if absence of readiness is established for a very short period, the plaintiff will have to suffer the consequences of not being ready and willing to perform his part of the contract. In Saradamani Kandappan v. Rajalakshmi and others, [ 2011 (4) LW 97 ], the Hon'ble Supreme Court, while dealing with the question of readiness and willingness, observed as follows: ................. 28. The intention to make time stipulated for payment of balance consideration will be considered to be essence of the contract where such intention is evident from the express terms or the circumstances necessitating the sale, set out in the agreement. 28. The intention to make time stipulated for payment of balance consideration will be considered to be essence of the contract where such intention is evident from the express terms or the circumstances necessitating the sale, set out in the agreement. If for example, the vendor discloses in the agreement of sale, the reason for the sale and the reason for stipulating that time prescribed for payment to be the essence of the contract, that is, say, need to repay a particular loan before a particular date, or to meet an urgent time bound need (say medical or educational expenses of a family member) time stipulated for payment will be considered to be the essence. Even if the urgent need for the money within the specified time is not set out, if the words used clearly show an intention of the parties to make time the essence of the contract, with reference to payment, time will be held to be the essence of the contract.” 28. On the side of the appellant, a judgment of the Hon'ble Supreme Court reported in 2015-2-CTC-178 [Nanjappan V. Ramasamy and Ors] is cited, wherein it is stated as follows:- “11. In a suit for specific performance, the plaintiff has to aver and prove with satisfactory evidence that he was always ready and willing to perform his part of contract at all material time as mandatorily required under Section 16(c) of the Specific Relief Act, 1963. First appellate court and the High Court recorded findings that the plaintiff was always ready and willing to perform his part of the contract. By a careful reading of the recitals in the agreement, the concurrent findings so recorded do not seem to reflect the conduct of the parties. As per recitals in (Ex.P-1 agreement dated 30.9.1987), an amount of Rs.25,000/- was paid by the respondents-plaintiffs to the appellant-defendant. Balance amount of Rs. 20,000/- was to be paid within 21/2 years thereafter and get the sale executed. In the second agreement of sale (Ex.P-2 dated 21.3.1990) it is stated that the plaintiffs were unable to pay the balance amount within the stipulated period and get the sale deed executed and therefore the second sale agreement was executed extending the period for execution of sale deed for a further period of three years. In the second agreement of sale (Ex.P-2 dated 21.3.1990) it is stated that the plaintiffs were unable to pay the balance amount within the stipulated period and get the sale deed executed and therefore the second sale agreement was executed extending the period for execution of sale deed for a further period of three years. As could be seen from the recitals from Ex.P-2, respondents were unable to pay the balance sale consideration and get the sale deed executed. It is pertinent to note that the time for performance of contract was extended again and again totaling period of eight years. Even though first appellate court and High Court recorded findings that respondents-plaintiffs were ready and willing to perform their part of contract, the fact that time was extended for eight years is to be kept in view while considering the question whether discretion is to be exercised in favour of the respondents-plaintiffs.” 29. On the side of the appellant/first defendant, it is stated that availability of the fund has to be proved by the plaintiff. But, the first respondent herein/ plaintiff failed to produce income tax returns and failed to prove the availability of fund. 30. In support of this contention, a judgment of the Hon'ble Supreme Court reported in 2018-3-SCC-658 [Kalawati (dead) V. Rakesh Kumar] is cited, wherein, it is stated as follows:- 18. In Acharya Swami Ganesh Dassji V. Sita Ram Thapar, this Court drew a distinction between readiness to perform the contract and willingness to perform the contract. It was observed that by readiness it may be meant the capacity of the plaintiff to perform the contract which would include the financial position to pay the purchase price. As far as the willingness to perform the contract is concerned, the conduct of the plaintiff has to be properly scrutinised along with the attendant circumstances. On the facts available, the Court may infer whether or not the plaintiff was always ready and willing to perform his part of the contract. It was held in Para 2, which reads as follows:- “2. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For contract, the conduct has to be properly scrutinised. It was held in Para 2, which reads as follows:- “2. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For contract, the conduct has to be properly scrutinised. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the execution of the agreement, i.e., by 27.2.1975. The draft sale deed was not returned after being duly approved by the petitioner. The factum of readiness and willingness to perform plaintiff's part of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready no capacity to perform his part of the contract as he had no financial capacity to payt the consideration in cash as contracted and intended to bit for the time which disentitles him as time is the essence of the contract.” 31. On the side of the appellant/first defendant, it is further stated that the readiness and willingness to be proved from the date of agreement till the date of suit. No such document was filed by the plaintiff and that the conduct of the plaintiff proved that he is not ready and willing. 32. To substantiate this, a judgment of this Court reported in 2014-4-CTC-290 [Farooque Dadabhoy V. Dr.Usha S.Bhat] is cited, wherein, it is stated as follows:- 24. No such document was filed by the plaintiff and that the conduct of the plaintiff proved that he is not ready and willing. 32. To substantiate this, a judgment of this Court reported in 2014-4-CTC-290 [Farooque Dadabhoy V. Dr.Usha S.Bhat] is cited, wherein, it is stated as follows:- 24. Most recently in Shamsher Singh v. Rajinder Kumar (2014) 5 Scale 292 , the Supreme Court while considering the discretionary remedy of specific performance in the light of Section 20 of the Specific Relief Act referred to the observation made in an earlier decision in A.C.Arulappan v. Ahalya Naik (2001) 6 SCC 6 00, which reads thus: "If under the terms of the contract the plaintiff gets an unfair advantage over the defendant, the Court may not exercise its discretion in favour of the plaintiff. If it is inequitable to grant specific relief, then also the Court would desist from granting a decree to the plaintiff." 33. On the side of the appellant/first defendant, it is stated that the plaintiff/first respondent herein has failed to take steps to discharge the loan, though he was aware of the loan transaction, even at the time of execution Ex.A1 and that even the quantum of loan was not verified by the plaintiff /first respondent herein and that there is contradictions in the evidence of P.W.1, as to whether the sale agreement was type written or hand written and that the other witnesses were not examined. 34. On the side of the respondent/plaintiff, it is stated that the first defendant failed to discharge the Bank loan and that the respondent/plaintiff was ready and willing to perform his part of the contract and that the appellant/first defendant, who has not discharged the loan, cannot question the readiness and willingness of the respondent /plaintiff and that already major portion of the sale consideration was paid and that the respondent/plaintiff was waiting only for the clearance of the Bank loan by the appellant. 35. on the side of the first respondent/plaintiff, it is further stated that there is no substantial question of law raised by the appellant/first defendant and the second appeal is not maintainable, as there is no substantial question of law. A judgment of the Hon'ble Supreme Court reported in 2008-8-SCC-287 [Gauri Shankar Prasad V. Brahma Nand Singh] is cited on the side of the first respondent herein/ plaintiff, wherein, it is stated as follows:- 10. A judgment of the Hon'ble Supreme Court reported in 2008-8-SCC-287 [Gauri Shankar Prasad V. Brahma Nand Singh] is cited on the side of the first respondent herein/ plaintiff, wherein, it is stated as follows:- 10. The lower Appellate Court allowed the appeal by setting aside the judgment and decree of the trial Court. The question which was formulated by the High Court was as follows: "Whether the time was an essence of agreement (Ext. 2) and whether the plaintiffs/appellants were ready and willing to perform their part of contract. 21. As rightly noted by the High Court, there was an agreement for re-conveyance and there was specific stipulation for re-conveyance of the land within a period of 3 years which was admittedly not complied by the plaintiffs-appellants. It is to be noted that the question formulated by the High Court, by no stretch of imagination, is a substantial question of law. 36. A verification of the records reveals that the signature in Ex.A1 and Ex.A2 were admitted by the first defendant. The first defendant has admitted the date in Ex.A2. The mortgage deed was executed on 15.09.1994, but, Ex.A2 was signed on 20.09.1994. The claim of the appellant that Ex.A1 and Ex.A2 were created by using signed blank papers is not sustainable. No time limit for the execution of sale deed was fixed in Ex.A1. In Ex.A1, it is stated that sale deed will be executed after repaying the loan with the second defendant. Ex.A9 and Ex.A10 reveals that the loan with the second defendant was not repaid by the first defendant. 37. In the above circumstances, it is decided that the limitation period starts only from the date of denial by the first defendant/appellant. The first defendant denied the execution through Ex.A8, paper publication, dated 08.03.2008. The suit was filed on 18.09.2008, that is, within three years from the date of denial. Until the loan was repaid, the appellant cannot question the readiness and willingness of the respondent to perform his part of the Contract. Already major portion of the sale consideration was paid. The questions raised by the appellant are not questions of law and are not sustainable. 38. All the questions raised by the appellant are not sustainable. Until the loan was repaid, the appellant cannot question the readiness and willingness of the respondent to perform his part of the Contract. Already major portion of the sale consideration was paid. The questions raised by the appellant are not questions of law and are not sustainable. 38. All the questions raised by the appellant are not sustainable. This Second Appeal is dismissed by confirming the judgment and decree, dated 23.09.2014, made in A.S.No. 17 of 2014, on the file of the II Additional District and Sessions Judge, Thoothukudi, confirming the judgment and decree, dated 05.02.2013, made in O.S.No.178 of 2011, on the file of the Subordinate Judge, Thoothukudi. No costs. Consequently, connected Miscellaneous Petition is closed.