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2024 DIGILAW 1276 (AP)

P. Sanjaeevarayudu v. N. Laxminarafyana

2024-09-10

V.GOPALA KRISHNA RAO

body2024
JUDGMENT : V. Gopala Krishna Rao, J. 1. The appeal is filed against the judgment and decree dated 21-7-2004 in O.S.No.207 of 1994 passed by the learned Principal Senior Civil Judge, Anantapur. The suit is filed for the relief of specific performance of an agreement of sale dated 07-11-1991 said to have been executed by the 1st defendant. 2. The case of the plaintiffs as narrated in the plaint, in brief, is as follows: (i) It is pleaded that the 1st defendant is the owner of plaint schedule property, having purchased the same under a sale deed dated 26-12-1964, agreed to sell the same to the plaintiffs for a consideration of Rs.4,80,000/- and that on 07-11-1991, the 1st defendant executed an agreement of sale and that the plaintiffs have paid Rs.60,000/- towards advance and that though time for performance was stipulated in the agreement, time was never treated as essence of the contract and that the parties to the contract never intended to make time as one of the essential conditions of the agreement and that even otherwise, time is not the essence of the contract in respect of immovable property. The plaintiffs have always been ready and willing to perform their part of the contract i.e. to pay the balance sale consideration and to obtain a registered sale deed and that they were always pressing the 1st defendant to perform his obligations under the agreement. One of the essential conditions of the agreement is that the 1st defendant should vacate the premises by the date of execution of the sale deed and that he has also to discharge the loan subsisting on the suit property and that the 1st defendant did not perform his obligations till the date of suit and that he went on evading to perform his obligations. (ii) It is further pleaded that while the plaintiffs were making oral demands for the performance of the contract, they received a notice dated 07-01-1992 from the 1st defendant stating that he is ready to perform his part of the contract and that the plaintiffs sent a suitable reply on 06-7-1992 and that the 1st defendant having failed to perform his obligations and having failed to get an Income Tax Clearance Certificate, cannot ask the plaintiffs to perform their part of the contract. The 1st defendant issued another notice dated 31-7-1992 with all false allegations and without disclosing whether he has obtained the Income Tax Clearance Certificate and without vacating the premises as agreed upon. (iii) It is further pleaded that the 1st defendant cannot make time as essence of the contract unilaterally and without fulfilling his obligations. The plaintiffs sent a suitable reply on 04-8-1992. The question of the plaintiffs" cooperating in obtaining the Income Tax Clearance Certificate does not arise and that the 1st defendant never asked the plaintiffs to provide a draft sale deed as alleged in the notice dated 31-7-1992 and that the 1st defendant has not disputed the capacity of the plaintiffs in the notice dated 01-7-1992 and that the 1st defendant has not vacated the premises in his notice dated 18-8-1992 and that only false allegation is made for the purpose of taking undue advantage under the agreement. The 1st defendant's sons are also in occupation of a portion of the suit property and that the 1st defendant never vacated the premises. The plaintiffs have, therefore, prayed for a decree of specific performance of the said agreement of sale. 3. Brief averments in the written statement filed by the 1st defendant are as follows: (i) It is pleaded that the property was sold by him as he was in need of money to perform the marriages of his daughters and that 8 months time was stipulated for the execution of sale deed and payment of balance sale consideration and that time was the essence of the contract as the money was urgently needed to perform the marriages of his daughters. The 1st defendant was always ready and willing to perform his part of contract and to deliver vacant possession by the appointed date and that there were no debts subsisting over the property. (ii) It is denied that the plaintiffs were pressing orally for the performance of contract. On the other hand, the 1st defendant issued a notice on 01-7-1992 to the plaintiffs to pay sale consideration and to obtain a sale deed and that the plaintiffs sent a reply on 06-7-1992 with false allegations. The plaintiffs have no capacity to pay the balance sale consideration and that they were postponing the same on one pretext or the other and that they were never ready and willing to perform their part of the contract. The plaintiffs have no capacity to pay the balance sale consideration and that they were postponing the same on one pretext or the other and that they were never ready and willing to perform their part of the contract. The plaintiffs were under an obligation to submit a draft sale deed to obtain Clearance Certificate from the Income Tax Department and that they did not produce the draft sale deed in spite of repeated demands and that the 1st defendant issued a notice on 31-7-1992 fixing 10-8-1992 as a last chance for effecting registration and that the plaintiffs did not comply with the demands in that notice and that they gave a reply on 04-8-1992 with false allegations, but the plaintiffs never ready at any time. (iii) It is further pleaded that the 1st defendant was ready to deliver vacant possession of the house immediately after registration of a sale deed and payment of balance sale consideration and that he also applied for clearance certificate though it was not a part of the contract and that he attended the office of Sub-Registrar on 10-8-1992. The continued conduct of the plaintiffs and their defaults resulted in breach of the contract by the plaintiffs and that the plaintiffs have forfeited their rights under the agreement of sale and also the advance of Rs.60,000/- and that there is no obligation on the 1st defendant to act according to the agreement of sale. The conduct of the plaintiffs and their unreadiness to perform their part of the contract and the escalation in prices of the property disentitle the plaintiffs to the relief of specific performance. The 1st defendant prayed that the suit may be dismissed. 4. During the pendency of the suit, the 1st defendant died and his legal representatives were brought on record as defendants 2 to 18. 5. The 1st defendant prayed that the suit may be dismissed. 4. During the pendency of the suit, the 1st defendant died and his legal representatives were brought on record as defendants 2 to 18. 5. Brief averments in the written statement filed by the 2nd defendant, adopting the written statement filed by the 1st defendant, are as follows: It is pleaded that the 1st defendant while in a sound and disposing state of mind executed a registered Will dated 02-11-1996 bequeathing a major portion of the suit property in favour of himself, defendants 3 and 4 and that the remaining portion has been bequeathed in favour of the 6th defendant by way of Codicil dated 24-11-1996 and that therefore, the other defendants i.e. defendants 5 and 7 to 18 have no right over the suit property. It is further pleaded that the defendants 2 to 4 and 6 are in exclusive possession and enjoyment of the suit property. 6. Brief averments in the written statement filed by the 14th defendant, also adopting the written statement filed by the 1st defendant, are as follows: It is pleaded that the execution of a Will by the 1st defendant in a sound and disposing state of mind on 16-6-1998 by cancelling the Will alleged to have been executed in favour of the defendants 2 to 4 and 6 and that the Will dated 02-11-1996 and the Codicil dated 24-11-1996 are of no value and that the defendants 2 to 4, 6, 14 and 15 are owners of the property under the Will dated 16-6-1998. It is further pleaded that the plaintiffs were never ready and willing to perform their part of the contract and that the claim for specific performance of agreement is untenable as the agreement was already terminated by the 1st defendant during his life time. It is also pleaded that the value of the suit property has increased enormously and that by decreeing the suit, lot of prejudice would be caused to the defendants. 7. The 15th defendant has adopted the written statement filed by the 14th defendant. 8. Based upon the pleadings of both the parties, the trial Court framed the following issues and additional issues for trial: (1) Whether the plaintiffs are entitled for specific performance of agreement of sale dated 07-11-1991 ? and (2) To what relief ? 7. The 15th defendant has adopted the written statement filed by the 14th defendant. 8. Based upon the pleadings of both the parties, the trial Court framed the following issues and additional issues for trial: (1) Whether the plaintiffs are entitled for specific performance of agreement of sale dated 07-11-1991 ? and (2) To what relief ? Additional issues framed on 30-10-2000: (1) Whether the defendants 2 to 4 and 6 are only entitled to the estate of deceased Lakshmi Narayana as per Will dated 02-11-1996 and Codicil dated 24-11-1996 ? Additional issues framed on 15-12-2000: (1) Whether the plaintiffs are ready and willing to perform their part of contract under the agreement dated 07-11-1991 ? and (2) Whether the Will dated 16-6-1998 executed by the 1st defendant is true ? 9. During the course of trial, on behalf of the plaintiffs, P.W.1 is examined and Exs.A-1 to A-16 are marked. On behalf of the defendants, D.Ws.1 and 2 are examined and Exs.B-1 to B-10 are marked. 10. After completion of the trial and hearing the arguments of both sides, the trial Court dismissed the suit with costs. 11. Aggrieved by the said judgment and decree of the trial Court in dismissing the suit, the plaintiffs have preferred the present appeal. 12. Heard Sri P. Sravan Kumar, learned counsel, on behalf of Sri O. Manoher Reddy, learned Senior Counsel for the appellants/plaintiffs and Sri M. Bala Naga Srinivas, learned counsel, on behalf of Sri Vedula Venkata Ramana, learned Senior Counsel for respondents 3 and 4/ defendants 3 and 4. 13. The learned counsel for appellants would contend that the judgment and decree of the trial Court in dismissing the suit for specific performance of agreement of sale is contrary to law. He would further contend that the trial Court ought to have seen that time was not an essence of the contract. He also further contends that the trial Court came to wrong conclusion that the plaintiffs are not ready and willing to perform their part of the contract. He would further contend that the trial Court came to wrong conclusion and dismissed the suit and the appeal may be allowed by setting aside the judgment and decree passed by the trial Court. 14. He would further contend that the trial Court came to wrong conclusion and dismissed the suit and the appeal may be allowed by setting aside the judgment and decree passed by the trial Court. 14. Per contra, the learned counsel for respondents 3 and 4 would contend that on appreciation of the entire evidence on record, the learned trial Judge rightly dismissed the suit and there is no need to interfere with the finding given by the learned trial Judge. 15. Now, the points for determination in the appeal are: (1) Whether the time is an essence of the contract ? (2) Whether the appellants/plaintiffs are ready and willing to perform their part of the contract ? (3) Whether the trial Court is justified in dismissing the suit ? (4) Whether the judgment and decree passed by the trial Court needs any interference ? and (5) To what extent ? 16. Points 1 and 2: Whether the time is an essence of the contract? and Whether the appellants/plaintiffs are ready and willing to perform their part of the contract ? The recitals in Ex.A-1 agreement of sale are crucial to decide the points involved in the subject matter of the appeal. The case of the plaintiffs is that the 1st defendant is absolute owner of the plaint schedule property and he agreed to sell the same to the plaintiffs for consideration of Rs.4,80,000/- and the 1st defendant executed an agreement of sale and that the plaintiffs have paid an amount of Rs.60,000/- on the date of agreement, which is less than 15% of the total agreed sale consideration. The further recitals in Ex.A-1 agreement of sale are that the suit schedule property is self-acquired property of the 1st defendant and he agreed to alienate the said property for Rs.4,48,000/- to the plaintiffs to perform the marriages of his daughters. Time limit fixed to perform the part of the contract is from 07-11-1991 to 07-7-1992i.e. 8 months. Therefore, a specific condition was incorporated in between both the parties that 8 months time was fixed for performance of the contract i.e. on or before 07-7-1992 and the plaintiffs have to pay remaining balance sale consideration of Rs.4,20,000/- and to obtain a regular registered sale deed and if they failed to do so, the advance amount paid is forfeited and the agreement shall stand cancelled. 17. 17. As stated supra, 8 months time is fixed in between both the parties to perform the part of the contract and both the parties have mutually agreed to fix the time of 8 months to perform the part of the contract. It is well settled that the Court shall bear in mind that when the parties prescribed certain time limit for taking steps by one or other party, it must have some significance and the said time cannot be ignored altogether. Contrary to the above terms and conditions, the 1st plaintiff as P.W.1 stated in his evidence that time was not an essence of the contract, but on the advice of the document writer it was noted like that in Ex.A-1 agreement of sale. In order to prove the same, scribe of Ex.A-1 agreement of sale is not examined as a witness by the plaintiffs. For the reasons best known to the plaintiffs, the plaintiffs do not make any venture to examine the scribe or attestor to prove that it was mentioned in Ex.A-1 agreement of sale that time is an essence of the contract on the advice of the scribe only, but the time is not an essence of the contract. On the other hand, the defendants examined one of the attestors in Ex.A-1 agreement of sale as D.W.2. As per his evidence, he is one of the attestors in Ex.A-1 and the contents of Ex.A-1 are true and time was stipulated in Ex.A-1 for performance of marriages of defendants 11 and 12 by the 1st defendant. It is relevant to say that during the pendency of the suit, the 1st defendant died and other defendants are added as legal representatives of the deceased 1st defendant in the suit proceedings before the trial Court. P.W.1 stated that the 1st defendant also undertaken in Ex.A-1 that he will discharge the debt on house property by the date of registration and he will furnish proof to that extent. 18. As stated supra, time limit is fixed to perform the part of the contract by 07-7-1992. Admittedly, the plaintiffs have not issued any legal notice to the defendants by informing that they are ready to pay the balance sale consideration of Rs.4,20,000/- and they are ready for registration. 18. As stated supra, time limit is fixed to perform the part of the contract by 07-7-1992. Admittedly, the plaintiffs have not issued any legal notice to the defendants by informing that they are ready to pay the balance sale consideration of Rs.4,20,000/- and they are ready for registration. On the other hand, the 1st defendant issued a legal notice to the plaintiffs on 01-7-1992, which was received by the plaintiffs prior to 07-7-1992. It was specifically mentioned in Ex.A-2 legal notice by the 1st defendant that "he has been ready and willing to perform his part of the contract under the said agreement, but the plaintiffs are not evincing any interest to discharge their part of the contract as noted in the agreement" and it was further averred in Ex.A-2 legal notice that "prescribed time mentioned in agreement is also the essence of the contract". On receipt of the said notice, the plaintiffs issued a reply notice dated 06-7-1992 i.e. one day prior to within the stipulated time through their counsel. P.W.1 admits in cross-examination that the marriage of daughter of the 1st defendant by name Krishna Kumari was performed on 13-11-1991 i.e. within 6 days after the date of Ex.A-1 agreement of sale. Furthermore, the 1st plaintiff admits that while offering the plaint schedule property, the 1st defendant specifically stated to him that he wanted to sell the property to perform the marriages of his daughters. Therefore, the purpose of alienating the property by the 1st defendant is to perform the marriages of his daughters and he performed the marriage of one of his daughters by name Krishna Kumari after 6 days of Ex.A-1 agreement of sale. Therefore, certainly the time is an essence of the contract. 19. In the case of Shenbagam v. K.K. Rathinavel, 2022 Livelaw SC 74, the Apex Court held as follows: "Section 16 of the Specific Relief Act provides certain bars to the relief of specific performance. These include, inter alia, a person 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 and waived by the defendant. These include, inter alia, a person 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 and waived by the defendant. In JP Builders v. A Ramadas Rao, a two-judge Bench of this Court observed that Section 16(c) mandates "readiness and willingness" of the plaintiff and is a condition precedent to obtain the relief of specific performance. The Court held: "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. 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." The Court further observed that "readiness" refers to the financial capacity and "willingness" refers to the conduct of the plaintiff wanting the performance. 20. In the case of Saradamani Kandappan v. S. Rajalakshmi, 2011 (12) SCC 18 , the Apex Court held as follows: "The question whether time is the essence of the contract, with reference to the performance of a contract, what generally may arise for consideration either with reference to the contract as a whole or with reference to a particular term or condition of the contract which is breached. In a contract relating to sale of immovable property if time is specified for payment of the sale price but not in regard to the execution of the sale deed, time will become the essence only with reference to payment of sale price but not in regard to execution of the sale deed. Normally in regard to contracts relating to sale of immovable properties, time is not considered to be the essence of the contract unless such an intention can be gathered either from the express terms of the contract or impliedly from the intention of the parties as expressed by the terms of the contract." 21. In the case on hand, after receipt of reply notice, another rejoinder to reply notice was given to the plaintiffs" counsel by the 1st defendant under Ex.A-9 by informing that "even by 07-7-1992 he had made all necessary preparations to vacate the house property and all the persons who are in occupation of the premises which is agreed to be sold, had made all arrangements to vacate it and put the plaintiffs in possession of the property, if they had taken the sale deed by 07-7-1992". In Ex.A-9 legal notice, it was further averred that "there are no outstanding liabilities on the schedule property which is agreed to be sold". In Ex.A-9 legal notice, it was further averred that "he had made all preparations to shift his entire establishment into the 2nd road of Anantapur where his daughter resides and in fact, they were also looking after the purchase of the house, as and when they find the funds available". In the said legal notice, it was further averred that "he had waited at the office of Sub-Registrar in Anantapur on 07-7-1992 during the hours mentioned in the legal notice sent by the plaintiffs, but the plaintiffs did not turn up". 22. In Ex.A-9 legal notice, it was further averred that "he had entered into the agreement of sale in respect of his residential house on account of the fact that he was badly in need of money for performing his daughters' marriages and he also fixed the marriage of his last daughter in Shravana Masam and because the plaintiffs did not perform their part of the contract, he had cancelled the marriage of his daughter on account of non-availability of funds". 23. 23. In Ex.A-9 legal notice, the defendant further demanded the plaintiffs "to get the draft sale deed prepared and handover the same on 03-8-1992 and obtain a regular registered sale deed on 10-8-1992, otherwise the agreement shall stand cancelled and the advance amount will be forfeited". 24. Admittedly, no notice is issued by the plaintiffs within the stipulated time that they are ready with balance sale consideration and they are ready to obtain a regular registered sale deed, till the date of issuance of legal notice by the 1st defendant in writing informing the plaintiffs that time was an essence of the contract. In reply to the said notice, the plaintiffs issued a reply notice dated 06-7-1992. In the reply notice Ex.A-3, the plaintiffs stated that "the 1st defendant has neither obtained Income Tax Clearance Certificate nor vacated the property and has also not discharged the debts over the property and therefore, there is no question of performance of the contract till the said requirements are made". It is to be noted that P.W.1 admitted in his evidence that he does not have any documentary evidence to show that himself and the 2nd plaintiff were having ready cash of Rs.4,20,000/- with them to show their readiness. He further admits that it is not incorporated in Ex.A-1 that unless Income Tax Clearance Certificate is obtained, registration shall not be proceeded and he did not deposit the amount of Rs.4,20,000/- anywhere even before completion of 8 months and also did not issue any notice intimating him. He further admits that he does not know personally how Income Tax Clearance Certificate to be obtained. Moreover, Income Tax Clearance Certificate can be obtained only after draft sale deed is produced before the Income Tax authorities. It is an admitted fact that the plaintiffs have not obtained a draft sale deed, they did not inclined to pay the remaining balance sale consideration of Rs.4,20,000/-, which is a huge amount in those days in the year 1992. As stated supra, a paltry amount of Rs.40,000/- was only paid from out of Rs.4,60,000/- under Ex.A-1 agreement of sale. It is an admitted fact that the plaintiffs have not obtained a draft sale deed, they did not inclined to pay the remaining balance sale consideration of Rs.4,20,000/-, which is a huge amount in those days in the year 1992. As stated supra, a paltry amount of Rs.40,000/- was only paid from out of Rs.4,60,000/- under Ex.A-1 agreement of sale. It is also to be noticed that the plaintiffs did not issue any legal notice within a stipulated time of 8 months from the date of Ex.A-1 that they are ready with balance sale consideration, but the appellants are only issuing replies to the notice got issued by the 1st defendant. As noticed supra, the plaintiffs could not furnish draft sale deed by 03-8-1992. The plaintiffs relied on Exs.A-13 to A-16 registration copies of various sale deeds, the same are no way helpful to the plaintiffs to prove their readiness with balance sale consideration for obtaining sale deed. 25. The 1st plaintiff examined himself as P.W.1. As per his evidence, himself and his younger brother Hari Narayana are living jointly and there is no question of sharing the income and they also do not have any bank account. He further admits that himself and the 2nd plaintiff have no bank accounts and there is no balance in their accounts. He further admits that since 15 days prior to the agreement, the 1st defendant approached him in order to sell the property and he has specifically stated to him that he wanted to sell the property to perform the marriages of his daughters. He also further admits that one week after the date of agreement, the 1st defendant performed the marriage of his first daughter. He also further admits that he does not have any documentary evidence to show that himself and the 2nd plaintiff are having ready cash of Rs.4,20,000/- with them to show their readiness. It is not incorporated in Ex.A-1 that unless Income Tax Clearance Certificate is obtained, registration shall not be proceeded. He further admits that he did not deposit the amount of Rs.4,20,000/- anywhere even before the completion of 8 months and also he did not issue any notice intimating him that he had deposited the amount and that he is ready to obtain a registered sale deed. He further admits that he did not deposit the amount of Rs.4,20,000/- anywhere even before the completion of 8 months and also he did not issue any notice intimating him that he had deposited the amount and that he is ready to obtain a registered sale deed. He further admits that he had gone through the contents of Ex.A-2 notice and they were asked to obtain a regular registered sale deed by paying balance of sale consideration by 07-7-1992 and they did not send any reply that they are getting ready by 07-7-1992 to pay the balance of sale consideration and to obtain a regular registered sale deed. He further admits that he informed the 1st defendant in writing inviting him to come to the office of Sub-Registrar on 07-7-1992 for execution of document and reply notice was issued on his behalf on 06-7-1992 through post. As noticed supra, time limit fixed for performance of the contract is prior to 07-7-1992. He also admits that in the plaint also, the fact of his presence in the office of Sub-Registrar on 07-7-1992 is also not yet mentioned. The above admissions of P.W.1 clinchingly prove that the plaintiffs are not having balance sale consideration and they are not inclined to perform their part of the contract and there are several laches on the part of the plaintiffs to discharge their part of the contract. The above admissions of the 1st plaintiff clearly prove that time is an essence of the contract and the plaintiffs are not ready and willing to perform their part of the contract and the plaintiffs did not come forward to pay the remaining balance sale consideration. 26. The suit is instituted based on Ex.A-1 agreement of sale said to have been executed by the 1st defendant and during the pendency of the suit, the 1st defendant died and other defendants are added as legal representatives of the 1st defendant during the pendency of the suit. As noticed supra, there are so many laches on the part of the plaintiffs in not obtaining a regular registered sale deed and the said laches cannot be ignored. 27. To prove the case of the defendants, the 2nd defendant is examined as D.W.1. As per his evidence, the 1st defendant is his father and he died during the pendency of the suit. 27. To prove the case of the defendants, the 2nd defendant is examined as D.W.1. As per his evidence, the 1st defendant is his father and he died during the pendency of the suit. He deposed in his evidence that his father was not indebted to anybody by then and he also secured Income Tax Clearance Certificate and his father vacated the house and they have informed those facts to the plaintiffs through notices and telegrams. He further deposed that after 07-7-1992, the plaintiffs did not approach them and on 31-7-1992, again they got issued a legal notice under Ex.A-9 and they sent a telegram on 10-8-1992 to P.W.1 by requesting him to obtain a sale deed on that day and Ex.B-5 is the certified true copy of telegram. He further deposed that they have also informed in Ex.B-5 that they have vacated the house and they shifted the family to the house of their sister in the 2nd road and in evidencing the transporting of house hold articles, he also obtained Ex.B-6 lorry transport receipt. He further deposed that his father also made an application before the Income Tax Department with regard to the application made by his father, they received a reply from the Assistant Commissioner of Income Tax under Ex.B-8 and the Income Tax Department pointed out that unless a draft sale deed produced, they will not give clearance. The evidence of D.W.1 and Exs.B-1 to B-10 clinchingly prove that the 1st defendant is ready to perform his part of the contract from the date of Ex.A-1 agreement of sale itself. Furthermore, there are so many laches on the part of the plaintiffs and those severe laches cannot be thrown out in a suit for specific performance of agreement of sale. 28. The material on record reveals that there are several laches on the part of the plaintiffs and those cannot be ignored. Furthermore, though the 1st defendant is ready to perform his part of the contract and in fact the 1st defendant himself issued a legal notice to the plaintiffs by informing that he is ready to perform his part of the contract, but the plaintiffs did not come forward to perform their part of the contract. Furthermore, though the 1st defendant is ready to perform his part of the contract and in fact the 1st defendant himself issued a legal notice to the plaintiffs by informing that he is ready to perform his part of the contract, but the plaintiffs did not come forward to perform their part of the contract. The reasons offered by the plaintiffs to take any steps in the matter are obviously untrue and it is clear that they were throwing blame on the defendants and finding out some reason or the other to explain the delay or omission to obtain a sale deed. The fact remains that from the date of legal notice issued by the 1st defendant till the date of filing of the suit, the plaintiffs have not taken any steps in the matter and the time is also expired by 07-7-1992. The plaintiffs did not do anything on their part to implement the agreement of sale. Furthermore, the 1st defendant had taken lot of pains by demanding the plaintiffs to discharge their part of the contract. As stated supra, it is undoubtedly clear that in the present case the time is an essence of the contract and the 1st defendant had always been ready and willing to perform his part of the contract from the date of Ex.A-1 agreement of sale, but the plaintiffs did not come forward to perform their part of the contract. 29. It is well settled that in deciding whether to grant remedy of specific performance specifically in a suit relating to sale of immovable property, the Court must be cognizant of the conduct of the parties. The law is also well settled that for the relief of specific performance, the plaintiffs have to prove that all along and till final decision of the suit, they were ready and willing to perform their part of the contract. It is the bounden duty of the plaintiffs to prove their readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all the circumstances including availability of funds and mere statement of averment in the plaint that readiness and willingness would not suffice. It is the bounden duty of the plaintiffs to prove their readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all the circumstances including availability of funds and mere statement of averment in the plaint that readiness and willingness would not suffice. For the aforesaid reasons, I am of the considered view that the time is an essence of the contract and the appellants/plaintiffs are not entitled to specific performance of agreement of sale since they are not ready and willing to perform their part of the contract from the date of agreement of sale itself. Accordingly, points 1 and 2 are answered against the appellants. 30. Points 3 and 4:- Whether the trial Court is justified in dismissing the suit ? and Whether the judgment and decree passed by the trial Court needs any interference ? In view of my findings on points 1 and 2, certainly the plaintiffs are not entitled to the main relief of specific performance of agreement of sale dated 07-11-1991. Since the plaintiffs have not sought alternative relief of refund of advance amount, they are not entitled to the same. For the aforesaid reasons, the trial Court is justified in dismissing the suit and therefore, there is no need to interfere with the judgment and decree passed by the learned trial Judge and the judgment and decree passed by the trial Court is perfectly sustainable under law and it requires no interference. 31. Point No.5:- To what extent ? Resultantly, the appeal suit is dismissed, confirming the judgment and decree dated 21-7-2004 in O.S.No.207 of 1994 passed by the trial Court. Pending applications, if any, shall stand closed. Considering the circumstances of the case, each party do bear their own costs in the appeal.