JUDGMENT : This matter is listed for admission. Heard the learned counsel appearing for the respective parties. 2. This appeal is filed challenging the judgment and decree dated 04.04.2019 passed in R.A.No.5003/2018 on the file of the IV Additional District and Sessions Judge, Shimoga, sitting at Bhadravathi. 3. The factual matrix of the case of the plaintiff before the Trial Court is that he had entered into an agreement with defendant No.1 for purchasing the vacant site for a valuable consideration of Rs.6,00,000/- vide sale agreement dated 04.08.2014 and he had paid the earnest money of Rs.1,00,000/- and agreed to pay the remaining amount of Rs.5,00,000/- at the time of registration of the sale deed and time was fixed for registration was for a period of three months. It is also his claim that he was repeatedly asking the defendant to furnish the documents to have the sale deed and the defendant No.1 did not come forward to execute the sale deed and he was always ready and willing to perform his part of contract. In pursuance of the suit summons, the defendant No.1 appeared and filed written statement contending that the agreement date 04.08.2014 was terminated and he also returned the advance amount of Rs.1,00,000/- to the plaintiff by tendering the cheque and the same was not encashed by him hence, the plaintiff was not entitled for the relief of specific performance. The Trial Court after considering both oral and documentary evidence placed on record framed the issues with regard to ready and willingness on the part of the plaintiff and whether agreement was cancelled and whether the defendant No.1 had paid the amount by way of cheque and whether the plaintiff is entitled for the relief of specific performance as prayed. The plaintiff in order to prove his case, examined himself as PW1 and got marked the documents at Ex.P1 to P6 and also examined two witnesses as PW2 and PW3. On the other hand, the defendant No.1 himself examined as DW1 and also examined one witness as DW2 and got marked the documents at Ex.D1 to D3. The plaintiff in order to prove his case, examined himself as PW1 and got marked the documents at Ex.P1 to P6 and also examined two witnesses as PW2 and PW3. On the other hand, the defendant No.1 himself examined as DW1 and also examined one witness as DW2 and got marked the documents at Ex.D1 to D3. The Trial Court after considering both oral and documentary evidence placed on record answered issue No.1 as negative in coming to the conclusion that the plaintiff was not always ready and willing to have the sale deed and also answered issue No.2 as affirmative with regard to the execution of the sale agreement and also cancellation of sale agreement and also answered issue No.3 as affirmative in coming to the conclusion that the defendant has tendered the money which he has received as earnest money and comes to the conclusion that the plaintiff is not entitled for any relief of specific performance and dismissed the suit. 4. Being aggrieved by the judgment of the Trial Court, an appeal was filed before the First Appellate Court wherein the appellant/plaintiff vehemently contend before the Court that the Trial Court has not considered the material available on record in a proper perspective and committed an error in not ordering for the specific performance when there is no dispute with regard to the entering into an agreement between the parties and the defendant No.1 himself did not come forward to furnish the documents. Based on the pleadings of the parties, the First Appellate Court formulated the point with regard to whether the judgment of the Trial Court requires to be interfered and relief of specific performance has to be granted. On perusal of both oral and documentary evidence placed on record and also on re-appreciation of evidence, First Appellate Court also dismissed the appeal. Hence, the present second appeal is filed before this Court. 5. The main contention of the learned counsel for the appellant/plaintiff that no dispute with regard to the sale agreement dated 04.08.2014 and also no dispute with regard to three months time was stipulated to have the sale deed. Hence, the present second appeal is filed before this Court. 5. The main contention of the learned counsel for the appellant/plaintiff that no dispute with regard to the sale agreement dated 04.08.2014 and also no dispute with regard to three months time was stipulated to have the sale deed. The counsel also would contend that though legal notice was issued by the defendant No.1 on 03.11.2014 that is before expiry of stipulated time, the same was acknowledged and reply was given by the plaintiff on 12.11.2014 and also subsequent legal notice was also exchanged between the parties. The counsel vehemently contend that though he had tendered a cheque for Rs.1,00,000/- and the same was not encashed and the defendant No.1 did not furnish the documents to have the sale deed and the plaintiff was always ready and willing to have the sale deed but the same has not been considered. In the evidence of PW1, he categorically stated with regard to his readiness and willingness to have the sale deed, but the same has not been appreciated by both the Courts below. 6. Per contra, the learned counsel appearing for the respondents/defendants would vehemently contend that before expiry of three months time, defendant No.1 had only caused the legal notice to the plaintiff and cancelled the notice since the plaintiff has not come forward to have the sale deed by paying balance consideration of Rs.5,00,000/- within the stipulated time hence, the cheque was also sent to him for having paid the earnest money of Rs.1,00,000/- in his favour but he same was not encashed. Hence, it shows that the plaintiff was not ready and willing to have the sale deed. Thus, both the Courts below have rightly comes to the conclusion that the plaintiff was not interested to have the sale deed and dismissed the suit. Hence, the same does not requires any interference. 7. Having heard the respective counsel appearing for the parties and also on perusal of the material available on record it discloses that there is no dispute with regard that the sale agreement was executed on 04.08.2014 and also no dispute with regard to the stipulation of period was three months and also on perusal of Ex.P4-sale agreement recital is very clear that three months time was fixed to pay the balance amount to have the sale deed. Though the document of notice was given by the defendant No.1 to the plaintiff on 03.11.2014, the same was not produced before the Court and the plaintiff also not disputes the fact that he had received the said notice and also not disputes the fact that the defendant No.1 has tendered an amount of Rs.1,00,000/- by way of cheque which he had received towards the earnest money but admittedly, the cheque was not encashed by the plaintiff instead of that the plaintiff initiated a suit for the relief of specific performance. 8. The Trial Court having considered both oral and documentary evidence placed on record particularly, the admission given by PW1 in the cross-examination with regard to stipulation of time was made in the agreement is three months and he categorically admits that he had agreed to pay the balance amount within three months but also he admits that he has not produced any documents to show that he was having money of Rs.5,00,000/- to have the sale deed and also admits that he is not having any difficulty to produce passbook to show that he was having money but he has not produced the said document and admitted that he has not given any notice to the defendant No.1 to come and execute the sale deed but he volunteers that he requested orally to the defendant No.1 to execute the sale deed in the month of November and also categorically admits that he has not produced any document to show that he was having money in his account to have the sale deed but he says that he was having the amount of cash but he did not produce any document to prove the same. Having considered this admission and also the answer elicited from the mouth of DW1, the Trial Court taken note of the fact that DW1 categorically admits that he was not having any acquaintance with the plaintiff but his claim is that he came to know the plaintiff through the middle man one Kempegowda and it is also his case that he was not having any difficulty to meet the plaintiff and he also admits that the agreement was not cancelled and the same was valid for a period of three months but subsequently, the same was cancelled. These are the materials considered by both the Courts. 9. These are the materials considered by both the Courts. 9. While granting the relief of specific performance, the Court has to look into the material available on record whether Section 16(c) of the Specific Relief Act is complied or not that is whether the plaintiff was always ready and willing to have the sale deed in terms of the agreement but here is a case of the defendant No.1 that he himself gave the notice before the expiry of three months and plaintiff has not issued any notice calling upon the defendant No.1 to execute the sale deed. Having taken note of this fact and he also not produced any document to show that he was having sufficient money to have the sale deed and admitted the same. This aspect has been considered while answering issue no.1 and rightly comes to the conclusion that the plaintiff was not ready and willing to perform his part of contract. The First Appellate Court also on re-appreciation of both oral and documentary evidence placed on record considered the evidence of both the parties and also taken note of the proviso of Section 16(c) and also Section 20 of the Specific Relief Act which is a discretionary relief merely because there is a sale agreement, Court cannot grant any relief of specific performance and having taken note of the material available on record particularly, with regard to the compliance of Section 16(c) is concerned, I do not find any force in the contention of the counsel for the appellant that the appellant was always ready and willing to perform his part of contract. It is also undisputed fact that the defendant No.1 himself has tendered a cheque of Rs.1,00,000/- while canceling the agreement and the same has not been encashed by the plaintiff instead of that he has filed the suit for specific performance. Having taken note of these facts into consideration, both the Courts below ought to have directed the defendant to pay the said amount when the agreement was cancelled but the same was not done by the Courts below. Hence, it is appropriate to direct the respondent No.1/defendant No.1 to pay the amount which he had encashed which is an earnest amount and also the very suit schedule property was also sold in favour of defendant No.2 and also received the sale consideration from the purchaser. Hence, it is appropriate to direct the respondent No.1/defendant No.1 to pay the amount which he had encashed which is an earnest amount and also the very suit schedule property was also sold in favour of defendant No.2 and also received the sale consideration from the purchaser. Under the circumstances it is appropriate to direct the defendant No.1/respondent No.1 to pay the amount of Rs1,00,000/-. Hence, I do not find any force in the contention of the learned counsel for the appellant to admit the appeal and to frame the substantial question of law invoking Section 100 of CPC. 10. In view of the above discussion, I pass the following: ORDER : The appeal is allowed in part with a direction to defendant No.1/respondent No.1 to pay the amount of Rs.1,00,000/- which he has received as earnest money within three months from today to the plaintiff/appellant.