JUDGMENT : Goutam Bhaduri, J. Heard. 1. Challenge in the present appeal is to the Judgment and decree dated 22/11/2016 passed in Civil Suit No. 6A/2012 by the I Additional District Judge, Bilaspur, whereby a suit for specific performance was decreed in favour of the Respondent/Plaintiff. 2. The brief facts of the case are that Plaintiff-Rajdeep Arora through his power of attorney holder Chitpal Singh Waliya, filed a civil suit on 21/02/2012 on the ground that the original defendant Kheduram (since dead) had entered into an agreement for sale of his property on 18/12/2009 for a sale consideration of Rs.12,25,000/-, out of it an amount of Rs.2,00,000/- was paid towards earnest money. The property comprises of total 8 Khasara numbers i.e. (2033/6, 2036/3), (2033/7, 2036/4), (2033/8, 2036/5), 2028/1, 2035/3, 2028/4, 2036/1, 2028/2), admeasuring total 4.27 acres situated at Mopka, tahsil and district Bilaspur. 3. Further pleading is that during the subsistence of the contract, an amount of Rs.50,000/- was paid on 24/02/2010 thereby the amount of earnest money was inflated to Rs.2,50,000/-, and date for execution of the sale deed which was earlier fixed for 17/03/2010, was further extended. The plaintiff averred that despite execution of agreement, the sale deed was not executed and in course of such facts it came to notice of the plaintiff that a civil suit filed by a third party namely Sonu against the defendant is pending. However, despite that the plaintiff served notices to execute the sale deed, but eventually it was not materialized. Therefore, the notices dated 10/06/2010 (Ex.P-3) and 22/06/2011 (Ex.P-4) were issued for execution of the sale deed, but ultimately when the same having not been materialized, the civil suit was filed. 4. The defendant denied the plaint allegations and stated that on the contrary the defendant had issued the notices for execution of the sale deed, but for some reasons or other, the plaintiff avoided the same. The primary defence was that the defendant was not ready and willing to execute the sale deed and further was not showing his willingness, coupled with the fact that the property in question was more valuable than the sale consideration which was shown in the agreement, and because of the fact that the plaintiff did not have the sufficient fund to his credit he himself has failed to execute the sale deed. During pendency of the suit, the original defendant Kheduram died issueless, as such, Ghanshyam Tiwari was arrayed as a legal representative who was nephew of the deceased. Ghanshyam Tiwari adopted the written statement filed by the deceased Kheduram and both the parties adduced their evidence. 5. The plaintiff on his behalf examined his father Charanjeet Arora as PW1; Chitpal Singh Waliya as PW3and Rajendra Singh Domar as PW2. Defendant-Ghanshyam Tiwari examined himself before the Court. 6. The learned Additional District Judge, on the basis of evidence, held that the agreement dated 18/12/2009 was proved to have been executed and thus decreed the suit for specific performance in favour of the Respondent/Plaintiff. Hence, this appeal. 7. (i) Learned counsel for the appellant/defendant would submit that though the suit was filed by plaintiff Rajdeep Arora through his power of Attorney holder Chitpal Singh Waliya (PW3), the plaintiff was not examined before the Court. Learned counsel would further submit that perusal of the plaint would show that it bears the signature of Plaintiff-Rajdeep Arora. It is stated the affidavit under Order 18 Rule 5 which was placed bears his signature, but Rajdeep Arora did not expose himself for cross-examination. They would further submit that the power of attorney holder Chitpal Singh Waliya who was examined as PW3 was not a party to the transaction as he had no personal knowledge, therefore, his evidence cannot be read in support of the plaintiff-Rajdeep Arora in absence of his examination-in-chief. (ii) Learned counsel placed reliance on the law laid down by the Supreme Court in the matter of Adivekka v. Hanamavva Kom Venkatesh, (2007) 7 SCC 91 and Man Kaur v. Hartar Singh Sangha, (2010) 10 SCC 512 to submit that under the circumstances this is a case of no evidence. They would further submit that series of events which has been led by the parties would show that the plaintiff was not ready and willing to execute his part of contract despite service of the notice. The initial agreement executed on 18/12/2009 was to expire on 17/03/2010. It is stated that though the time was extended, the suit was filed on 21/02/2012 which would show the state of affairs and modus operandi of the plaintiff. The initial agreement executed on 18/12/2009 was to expire on 17/03/2010. It is stated that though the time was extended, the suit was filed on 21/02/2012 which would show the state of affairs and modus operandi of the plaintiff. They would further submit that the evidence of father of the plaintiff would show that Mohar Singh, Grandfather of the plaintiff was holding the power of attorney, and while the evidence was adduced he was alive, whereas, Charanjeet Arora did not have personal knowledge. Despite that the raising arguments of ready and willingness cannot be sustained. Reliance has been placed on the law laid down by the Supreme Court in the matter U.N. Krishnamurthy through Lrs. v. A.M. Krishnamurthy, 2022 SCC Online SC 840, His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar, (1996) 4 SCC 526 and Ritu Saxena v. J.S. Grover, (2019) 9 SCC 132 . It has been further stated that under the circumstances, the specific performance of the contract would advance unfair advantage to the plaintiff. Therefore, the decree requires interference by this Court and the judgment and decree is liable to be set-aside. 8. Per contra, learned counsel appearing on behalf of the respondent/plaintiff opposes the submissions and submit that the legal representative of deceased Kheduram who has been examined would show that he has admitted the existence of the agreement. Referring to the notices dated 10/06/2010 and 22/06/2011 which are marked as Ex.P-3/Ex.P-4 and Ex.P-5, respectively, it has been stated that the existence of agreement has been proved and there is no plausible explanation on record on behalf of the defendant that why such sale deed was not executed despite service of notice, therefore, the only recourse was to give the judgment and decree of specific performance by the Court below, which is well merited and do not call for any interference. 9. We have heard the counsel for the parties at length and perused the entire records. 10. Perusal of the plaint itself would show that it was preferred by plaintiff-Rajdeep Arora who is a party to the agreement (Ex.P-2) dated 18/12/2009. Perusal of agreement would show that the property in question was agreed to be sold for sale consideration of Rs.12,25,000/- and out of that Rs.2,00,000/- was paid as earnest money. 10. Perusal of the plaint itself would show that it was preferred by plaintiff-Rajdeep Arora who is a party to the agreement (Ex.P-2) dated 18/12/2009. Perusal of agreement would show that the property in question was agreed to be sold for sale consideration of Rs.12,25,000/- and out of that Rs.2,00,000/- was paid as earnest money. Initially the agreement purported that the sale would be executed up till 17/03/2010, however, on 24/02/2010 another amount of Rs.50,000/- was paid as earnest money thereby the earnest money was inflated to Rs.2,50,000/-. Consequently, the dead line of the agreement dated 17/03/2010 was extended. Overall reading of the agreement would show that the time was not essence of the contract as per the conduct of the parties. 11. Be that as it may, the suit when was filed by plaintiff it bears the signature of the plaintiff, Rajdeep Arora, however in the caption it was written that it is through the power of attorney holder Chitpal Singh Waliya who has been examined as PW3. 12. The affidavit of Plaintiff-Rajdeep Arora is on record. Though he was not cross-examined, the contents of such affidavit shows that he along with his father and the power of attorney holder contacted the initial defendant Kheduram (since deceased) and his son for purchase of the property in December, 2009. Charanjeet Arora (PW1) who is father of the plaintiff has stated that he along with his son and Chitpal Singh Waliya (PW3) had talks with son of the original defendant Kheduram. The power of attorney (Ex.P-9) purports that the power of attorney was given by plaintiff-Rajdeep Arora to Chitpal Singh Waliya (PW3) on 14/02/2012. Admittedly, Chitpal Singh Waliya (PW3) was not power of attorney holder on the date of execution of agreement dated 18/12/2009. Another power of attorney (Ex.P-1) which was given by plaintiff-Rajdeep Arora in favour of his father Charanjeet Arora is of dated 03/02/2014. That too would show that no power of attorney was existing on the date of execution of agreement in December, 2009. 13. Consequently, the pleading which was made by plaintiff through Chitpal Singh Waliya in the plaint is to be examined as against the statement made by the Chitpal Singh Waliya (PW3). That too would show that no power of attorney was existing on the date of execution of agreement in December, 2009. 13. Consequently, the pleading which was made by plaintiff through Chitpal Singh Waliya in the plaint is to be examined as against the statement made by the Chitpal Singh Waliya (PW3). This witness though in his examination-in-chief stated that when Mohar Singh, Grandfather of the plaintiff negotiated for purchase of the land at the house of Kheduram, he was present, and in respect of Rajendra Singh Domar (PW2) who claimed to be present at the time of execution, Chitpal Singh Waliya (PW3) eliminates presence of Rajendra Singh Domar (PW2). The plaintiff-Rajdeep Arora who is author of the agreement (Ex.P-2) was not examined, and as has been held above, on the date of agreement Chitpal Singh Waliya was not the power of attorney holder for plaintiff-Rajdeep Arora. Therefore, the issue arises for consideration is that in absence of examination of the plaintiff what would be the effect of evidence of Chitpal Singh Waliya. Under these facts we may refer to the law laid down by the Supreme Court in the matter of Adivekka v. Hanamavva (Supra) which examined the effect of non-examination of the principal/plaintiff. The court in such dictum has held that when the plaintiff is not examined as he was not exposed to the cross-examination, the non-examination of the party to the lis would lead to draw an adverse inference against him. The relevant part of Para 21 of the judgment is reproduced hereunder:- “21. ......................... Non-examination of the party to the lis would lead to drawal of an adverse inference against her. (See Sardar Gurbakhsh Singh v. Gurdial Singh, AIR 1927 PC 230 : 29 Bom LR 1392, Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh, AIR 1931 Bom 97 : 32 Bom LR 924, Sudhir Ranjan Paul v. Chhatter Singh Baid, (1999) 3 Cal LT 261 (HC), Tulsi v. Chandrika Prasad, (2006) 8 SCC 322 and Binapani Paul v. Pratima Ghosh, (2007) 6 SCC 100 : (2007) 6 Scale 398 ) 14. The Supreme Court in the matter of Man Kaur (Supra) has further reiterated similar principles and held that Order 3 Rule 1 & 2 of the CPC though empowers the power of attorney holder to act on behalf of the principals but such word “acts” employed in Order 3 Rule 1 and 2 CPC confines only in respect of ‘acts’ done by the power-of-attorney holder in exercise of power granted by the instrument and the term ‘acts’ would not include deposing in place and instead of the principal. Therefore, when we relates back these principles in the facts of the present case, it emerges that on the date of execution of the agreement, Chitpal Singh Waliya (PW3) was not the power of attorney holder of Plaintiff-Rajdeep Arora. Consequently, the deposition adduced by him will not substitute the evidence of the plaintiff in the instant case. For the sake of brevity, the relevant para 14 of the judgment is reproduced hereunder:- “14. In Vidhyadhar v. Manikrao, (1999) 3 SCC 573 this Court reiterated the following well-recognized legal position: (SCC pp. 583-84, para 17). 17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct….” 15. Consequently, the evidence which is on record would show that in absence of examination of the plaintiff himself, the facts which was deposed by the power of attorney holder Chitpal Singh (PW3) cannot be substituted for the plaintiff. 16. Another aspect which falls for consideration in the instant case is "Readiness"and "Willingness". 17. The plaintiff-Rajdeep Arora got examined his father Chiranjeet Singh Arora as PW1. The cross-examination of this witness would show that he had no conversation with Kheduram, the original defendant and he had not met him. His evidence further would show, he had no conversation with son of Kheduram. Ghanshyam Tiwari who was arrayed as a defendant on death of Kheduram is not his son, but his nephew. Therefore, this fact would also lead to show that father of the plaintiff, Chiranjeet has also little knowledge about the existence of the terms of the agreement. His evidence further would show, he had no conversation with son of Kheduram. Ghanshyam Tiwari who was arrayed as a defendant on death of Kheduram is not his son, but his nephew. Therefore, this fact would also lead to show that father of the plaintiff, Chiranjeet has also little knowledge about the existence of the terms of the agreement. Though, the notices were exchanged in between the parties i.e. (Ex.D-1) dated 28/05/2011 sent by the defendant for execution of sale deed which is subsequent to the notice sent by the plaintiff on 10/06/2010, the reply of it is Ex.P-8 dated 22/06/2011, the plaintiff appears to have discarded/awarded the execution of sale deed on the ground that no demarcation was carried out. The agreement (Ex.P-2) does not show that to carry out demarcation was a precondition before the execution of the sale deed. Therefore, apparently, the plaintiff came out with a new condition to be performed which was not in dispute between the parties with respect to demarcation. 18. Conveniently, therefore, we may refer to the law laid down by the Supreme Court in the matter of U.N. Krishnamurthy through Lrs. (Supra), wherein the Supreme Court has held the prepositions that in a suit for specific performance, the plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of contract. For the sake of brevity, paragraphs 46, 47 & 48 of the said judgment are reproduced hereunder;- “46. It is settled law that for relief of specific performance, the plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of the contract. It is the bounden duty of the plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice. 47. In this case, the Respondent plaintiff has failed to discharge his duty to prove his readiness as well as willingness to perform his part of the contract, by adducing cogent evidence. Acceptable evidence has not been placed on record to prove his readiness and willingness. 47. In this case, the Respondent plaintiff has failed to discharge his duty to prove his readiness as well as willingness to perform his part of the contract, by adducing cogent evidence. Acceptable evidence has not been placed on record to prove his readiness and willingness. Further, it is clear from the Respondent Plaintiff’s balance sheet that he did not have sufficient funds to discharge his part of contract in March 2003. Making subsequent deposit of balance consideration after lapse of seven years would not establish the Respondent Plaintiff’s readiness to discharge his part of contract. Reliance may be place on Umaba v. Nilkanth Dhondiba Chavan (Supra) where this Court speaking through Justice SB Sinha held that deposit of amount in court is not enough to arrive at conclusion that Plaintiff was ready and willing to perform his part of contract. Deposit in court would not establish Plaintiff’s readiness and willingness within meaning of section 16 (c) of Specific Relief Act. The relevant part of the judgment is reproduced below:- “45. Deposit of any amount in the Court at the appellate stage by the plaintiffs by itself would not establish their readiness and willingness to perform their part of the contract within the meaning of Section 16 (c) of the Specific Relief Act..’ 48. It is, therefore, patently clear that the Respondent Plaintiff has failed to prove his readiness to perform his part of contract from the date of execution of the agreement till date of decree, which is a condition precedent for grant of relief of specific performance. This Court finds that the Respondent plaintiff was not entitled to the relief of specific performance.” 19. Likewise, in the matter of His Holiness Acharya Swani Ganesh Dassji (Supra), similar prepositions have been laid down by the Supreme Court. The relevant part is reproduced hereunder:- "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. 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 no ready no capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bit for the time which disentitles him as time is the essence of the contract. 20. In view of the aforesaid prepositions, we are of the view that the judgment and decree passed by the learned trial Court requires interference. 21. Accordingly, the appeal is allowed. The Judgment and decree passed by the learned trial Court is set-aside. The defendant has stated that he is ready and willing to return the amount of Rs.2,50,000/- with interest. 22. In view of the above, we direct the defendant to return Rs.2,50,000/- along with interest @ 6% w.e.f. 17/01/2010 till the actual date of payment to the plaintiff. 23. There shall be no order as to cost(s). 24. A decree be drawn accordingly.