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2024 DIGILAW 340 (JHR)

Tribikram Singh v. Most. Garibala Debi

2024-03-22

SUBHASH CHAND

body2024
JUDGMENT : Subhash Chand, J. 1. The instant First Appeal has been directed against the Judgment dated 04.09.2018 and decree dated 18.09.2018 whereby the suit of plaintiff for the specific performance has been dismissed and allowed the alternate relief for refund of the earnest money along with interest. 2. The brief facts leading to this First Appeal are that the plaintiff had instituted a suit with these averments that the plaintiff is the permanent resident of Seraikella town having his house and other landed properties, and the landed property situated in mouza Kudarsai, Thana No. 302, Khata No. 18 belonged to and stood recorded in the name of late Kalipada Daroga who was the father of principal defendant No. 1 and after his death the property was amicably divided between the principal defendant no. 1 and his brothers in which the lands described in the schedule of the plaint fell in share of the principal defendant which is situated in the jurisdiction of this Court. The principal defendant proposed to sell the suit land to plaintiff in consideration of Rs. 30,60,000/- to which plaintiff agreed and consequently an agreement to sale was executed between plaintiff and defendant No. 1 on 21.01.2012 and it was also notarized in presence of proforma defendant No. 2 and 3. Initially Rs. 2,00,000/- was paid as advance in cash and cheque duly acknowledged and agreed between the parties that the plaintiff will pay the balance amount Rs. 28,60,000/- as per convenience before registration of the sale-deed to defendant No. 1. According to the terms of the agreement Rs. 4,00,000/- were also further paid. Out of which 1,00,000/- was paid through cheque No. 913770 and Rs. 3,00,000/- were paid in cash to the principal defendant on 30.04.2012 in presence of proforma defendant No. 2 and 3 and other witnesses. The receipt of the same was also given to the plaintiff acknowledging the payment. Hence the balance amount of Rs. 24,60,000/- was to be paid by the plaintiff at the time of execution and registration of sale-deed. During the pendency of the suit defendant No. 1 Sudhena @ Sano Darogha died and after his death his legal heirs 1(a) to 1(d) were substituted. Hence the balance amount of Rs. 24,60,000/- was to be paid by the plaintiff at the time of execution and registration of sale-deed. During the pendency of the suit defendant No. 1 Sudhena @ Sano Darogha died and after his death his legal heirs 1(a) to 1(d) were substituted. 2.1 The defendant No. 1 through his Counsel had sent a legal notice by registered post on 08.09.2012 informing that he was ready to execute the sale-deed in favour of the plaintiff and also requested for payment of the balance amount of the consideration. The plaintiff on 13.12.2012 through his Advocate informed the Counsel for the defendant No. 1 in regard to readiness to pay the balance amount as per terms of the agreement dated 21.01.2012. It is also further case of the plaintiff that on 17.10.2012 a cheque bearing No. 657965 of Rs. 5,00,000/- also drawn at S.B.I. Seraikella was issued to defendant No. 1 by registered post but the defendant No. 1 with oblique motive instead of en-cashing it returned the same to plaintiff on 20.10.2012 through his Counsel and the plaintiff had collected the balance amount of Rs. 24,60,000/- for payment to defendant No. 1 and requested him to receive the balance amount and execute the sale-deed in 1st week of December, 2012 but the defendant No. 1 evaded to receive the same on false pretext whereas the plaintiff was and is always ready to perform his part of contract but the defendant did not. 2.2 The agreement dated 21.01.2012 still subsists but the defendant No. 1 flatly refused to execute the sale-deed in 2nd week of December, 2012 and denied to receive the balance amount in spite of repeated request made by the plaintiff. The sons of the defendants who had also negotiated in the deal have been arrayed as proforma defendants in the suit. The cause of action for filing the suit arose on 20.10.2012 when the cheque of Rs. 5,00,000/- was returned by defendant No. 1 in 2nd week of December, 2012 and defendant flatly refused to execute and register the sale-deed in favour of the plaintiff. The plaintiff had always been ready and willing to perform his part of contract and is also ready and willing to perform the same. The plaintiff has also purchased the required non-judicial stamp papers for the purpose of documentation. The plaintiff had always been ready and willing to perform his part of contract and is also ready and willing to perform the same. The plaintiff has also purchased the required non-judicial stamp papers for the purpose of documentation. The defendant No. 1 is bound to execute the sale-deed in compliance of the agreement as per terms and conditions of agreement to sale dated 21.01.2012 hence there was no way out but to file the suit with the prayer for specific performance of the agreement to sale to execute the sale-deed in favour of the plaintiff with alternate prayer to refund the amount paid along with interest. 3. On behalf of defendant the written statement filed on the ground that the suit of the plaintiff was not maintainable as the same was barred by the provision of section 34 of the Specific Relief Act. Suit is also barred by the provision of waiver, estoppel and acquiescence. The plaint was not properly verified as per provisions of Order 6, Rule 15 of C.P.C. When the plaintiff came to know that the defendant No. 1 is willing to sell out the land then he approached the responding defendant No. 1 and proposed him to sell the land. Upon the proposal and request defendant No. 1 was ready to sell the same to plaintiff and the agreement to sale was also executed. However, the agreement to sale was also notarized. The suit is also bad on account of mis-joinder of parties as defendant No. 2 and 3 have been arrayed in the suit. The plaintiff has not come before the Court with the clean hands so he is not entitled to the relief claimed. The plaintiff was never ready and willing to perform his part of agreement to sale. The responding defendant was in urgent need of money so he had given notice to execute the sale-deed in his favour but the plaintiff did not do so. As such he violated the terms and conditions of the agreement to sale and there was no way out for the defendant to sell out the same land to any other person. It is the plaintiff who has violated the terms and conditions of agreement to sale who has replied the notice issued on behalf of the responding defendant in wrong way. It is the plaintiff who has violated the terms and conditions of agreement to sale who has replied the notice issued on behalf of the responding defendant in wrong way. As per terms of the agreement to sale the balance amount of the full consideration amount has to be paid as convenience of defendant No. 1 who has already requested the plaintiff to pay the full consideration amount to him and get the sale-deed registered within ten days from the receipt of the notice. Hence had shown his willingness to register the sale-deed in favour of the plaintiff but the plaintiff failed to do so. 3.1 The notice dated 13.09.2012 and 28.09.2012 were issued on behalf of responding defendant No. 1 to the plaintiff but same were not complied with. Since the plaintiff was not ready and willing to purchase the suit land so the entire amount as per provisions of the agreement to sale stands cancelled out. Finally the agreement was also cancelled vide legal notice dated 21.10.2012 by the responding defendant and the plaintiff never requested responding defendant in the 2nd week of December, 2012 to execute the sale-deed as well as defendant No. 2 and 3 have got no concern with the suit as no cause of action has been shown against them and no relief has been claimed against defendant No. 2 to 3. The suit of the plaintiff is also hit by the provisions of section 71 of the T.P. Act as no notice for specific performance of the contract has been sent to defendant. The agreement to sale was also barred by the provision of Section 17 of the Registration Act. The specific performance of agreement to sale has been sought without seeking the consequential relief for recovery of the possession. As such the suit was also barred by the proviso of section 34 of the Specific Relief Act. Accordingly, prayed to dismiss the suit. 4. On the basis of pleadings of parties following issues were framed by the learned trial court: (i) Whether the suit is maintainable in the present form? (ii) Whether the plaintiff has got valid cause of action for the suit? (iii) Whether the suit is bad for non-joinder and mis-joinder of the parties? (iv) Whether the plaintiff is entitled for decree of declaration of right, title and interest over the suit land? (ii) Whether the plaintiff has got valid cause of action for the suit? (iii) Whether the suit is bad for non-joinder and mis-joinder of the parties? (iv) Whether the plaintiff is entitled for decree of declaration of right, title and interest over the suit land? (v) Whether the plaintiff is entitled for specific performance of contract? (vi) Against the defendant No. 1 for executing sale-deed of the suit land on receipt of valid consideration of Rs. 24,60,000/- and in case of failure execution of registered sale-deed in favour of the plaintiff through the process of the court? (vii) Whether the plaintiff is entitled for the cost of the suit? (viii) Whether the plaintiff is entitled to get any other relief or reliefs under the law and equity? 5. On behalf of plaintiff in oral evidence examined PW-1 Raj Kumar Parihadi, PW-2 Bhaktu Ram Mahato, PW-3 Rajaram Mahato and PW-4 Tribikram Singh Deo and in documentary evidence on behalf of plaintiff filed Ext.1 (agreement for sale) Ext.2 (money receipt of Rs. 4,00,000/-) Ext. 3 (pleader notice dated 08.09.12) Ext. 3/a (pleader notice dated 20.10.12), Ext. 3/b (pleader notice dated 28.09.2012), Ext. 4 (cheque No. 657965 of SBI for Rs. 5,00,000/-) 6. On behalf of defendants in oral evidence examined only sole witness D.W.1 Manoj Kumar Daroga who is the proforma defendant No. 2 and in documentary filed Ext.A (postal receipt of legal notice), Ext.B (legal notice issued by the Counsel of the defendant No. 1), Ext. B/1 (pleader notice dated 08.09.12), Ext.B/2 (pleader notice dated 13.09.12), Ext.B/3 (legal notice dated 27.09.12), B/4 (legal notice dated 20.10.12) 7. The learned trial court after hearing the rival submission of parties, passed the impugned Judgment and decree whereby the suit of the plaintiff for specific performance of contract was dismissed and was decreed partly for payment of the amount of Rs. 6,00,000/- along with 6% interest p.a. from the date of filing suit. The said amount was to be paid within two months from the date of Judgment. After expiry of the two months, if not paid, the same will carry 9% interest p.a. till payment. 8. 6,00,000/- along with 6% interest p.a. from the date of filing suit. The said amount was to be paid within two months from the date of Judgment. After expiry of the two months, if not paid, the same will carry 9% interest p.a. till payment. 8. Aggrieved from the impugned Judgment by which the suit of the plaintiff was dismissed, the instant First Appeal has been directed being dissatisfied therefrom on the ground that the impugned Judgment passed by the learned trial court is based on erroneous finding, the learned trial court had not appreciated the readiness and willingness on the part of the plaintiff which is proved on the evidence on record. The trial court did not appreciate the very cheque of Rs. 5,00,000/- which was paid by the plaintiff and the same was returned by the defendant that goes to show that the defendant never wanted to perform his part of contract. The learned trial court has wrongly construed the provisions of section 20 of the Specific Relief Act. From the evidence on record, it is proved that it was the defendant who had violated the terms and conditions of agreement to sale and the plaintiff was always ready and willing to perform his part of contract. The finding given by the learned trial court in regard to the cause of action against the defendant was perverse. The learned trial court has not properly weighed the evidence on record adduced by the parties. In view of the above prayed to allow the appeal and to set aside the impugned Judgment and decree and decreed the suit of the plaintiff for specific performance of agreement to sale in place of the alternate prayer of refund of the amount already paid along with interest. 9. I have heard the learned Counsel of parties and perused the materials on record. 10. For disposal of this First Appeal the following point of determination is being framed: Whether the plaintiff/appellant was ready and willing to perform his part of contract and is still ready and willing to perform the same as per terms and conditions of agreement to sale dated 21.01.2012, if so its effect? 10.1 On behalf of plaintiff in oral evidence examined PW-1 Raj Kumar Parihadi. 10.1 On behalf of plaintiff in oral evidence examined PW-1 Raj Kumar Parihadi. This witness in his Examination-in-chief says in regard to land in suit which is situated in mouza Kudarsai, Khata No. 18, Plot No. 125 Area 0.86 decimal was recorded in the name of the father of late Sudhena @ Sano Darogha i.e. namely late Kalipad Daroga. After death of Kalipad Daroga his whole property was divided among his legal heirs and the property in suit fell in share of Sudhena @ Sano Darogha who had agreed to sell the same in consideration of Rs. 30,60,000/- to the plaintiff and agreement to sale was executed on 21.01.2012 which was signed by both the parties. He had also put his signature. As a witness Manoj Kumar Daroga, Gopal Daroga and Paresh Chand Mahanti also put their signature on the agreement to sale (Ext.1). That agreement to sale was notarized. 4,00,000/- rupees was paid by plaintiff to Sudhena @ Sano Darogha. Receipt of the same was also issued on 30.04.2012. He was also witness of the receipt, the same is marked as Ext.2. It was agreed between the parties that the rest of the amount was to be paid as per convenience. In cross-examination this witness says he is not aware whether the plaintiff had purchased any stamp paper for execution of the sale-deed in the year 2012. He is also not aware whether the notice were issued in regard to execution of sale-deed in compliance of agreement to sale by both the parties. 10.2 PW-2 Bhaktu Ram Mahato is also the attesting witness of the agreement to sale who in his examination-in-chief stated in regard to execution of agreement to sale and corroborated the plaint averment. In cross-examination this witness says in regard to the facts of dispute between the parties he has no personal knowledge. 10.3 PW-3 Rajaram Mahato in his Examination-in-chief says in regard to execution of the agreement to sale between the parties and receiving of the advance amount of Rs. 6,00,000/- in two part. In cross-examination this witness says he has no knowledge in regard to issuance of any notice between the parties in regard to execution of the sale-deed in compliance of agreement to sale. 6,00,000/- in two part. In cross-examination this witness says he has no knowledge in regard to issuance of any notice between the parties in regard to execution of the sale-deed in compliance of agreement to sale. 10.4 PW-4 Tribikram Singh Deo in his Examination-in-chief has reiterated all the averments made in the plaint and also says that agreement to sale dated 21.01.2012 was also signed by him which is already marked Ext.1. The money receipt also bears signature of defendant which is dated 30.04.2012. The notice of defendant dated 08.09.2012 is Ext.B. The notice which was issued by plaintiff through his Advocate dated 13.09.2012 and the cheque No. 657965 dated 17.10.2012 is Ext.4. Notice dated 20.10.2012 is Ext. 3/a. 11. There is no dispute between the parties in regard to execution of agreement to sale and there is also no dispute in regard to payment of the earnest money and subsequent payment made by the plaintiff to the defendant. 12. The only dispute between the parties in regard to readiness and willingness on the part of the plaintiff to perform his part of contract in view of the terms and conditions in the agreement to sale in question. 13. Herein it would be relevant to see the documentary as well as oral evidence adduced on behalf of the plaintiff to prove the averment made by him in the plaint in regard to the readiness and willingness to perform his part of agreement to sale. 13.1 PW-4 is the plaintiff himself and this witness in his Examination-in-chief says that on behalf of defendant he received the notice dated 08.09.2012 based on wrong averments. He gave the reply notice of the same that he was ready and willing to perform his agreement to sale as per terms and conditions of agreement to sale. He transmitted the amount of Rs. 5,00,000/- on 17.10.2012 through cheque No. 657965 to defendant was returned. The defendant was willing to transfer the said land to another person. The principal defendant died in the year 2015 during the pendency of this appeal and after his death his legal heirs were substituted party to the suit. The plaintiff had expressed his intention to purchase the said land after payment of the rest of the amount of Rs. 24,60,000/- to get the sale-deed executed in his favour in compliance of agreement to sale dated 21.01.2012. The plaintiff had expressed his intention to purchase the said land after payment of the rest of the amount of Rs. 24,60,000/- to get the sale-deed executed in his favour in compliance of agreement to sale dated 21.01.2012. In cross-examination this witness says that in the agreement to sale no such condition was to make the payment in instalment. The notice which was given by defendant to him he was asked to get the sale-deed executed within 10 days and such condition was not mentioned in the agreement to sale. 13.2 On this very issue on behalf of defendant examined D.W.1 Manoj Kumar Daroga. This witness in his Examination-in-chief says that since the plaintiff was not ready to make the rest of the payment of the agreement to sale up-to August, 2012 so his late father had given notice on 09.09.2012 in which plaintiff was asked to get the sale-deed executed within 10 days or after payment of rest of the amount of agreement to sale but the plaintiff did not comply the said notice. The plaintiff had replied the very notice with wrong averment which showed that he was not willing to get the sale-deed executed in his favour. The notice which was given by his father through the Advocate he verifies his signature and signature of his father and also his Advocate marked Ext. B/3. In cross-examination this witness says that as per agreement to sale the rest of the amount were to be given at the time of sale-deed. It was wrong that his father wanted to sell the said land to any other person. His father was ill and he required money and during treatment he was being treated in the Hospital. 14. The first of all the agreement to sale requires scrutiny in regard to date of the execution of the sale-deed which was fixed between the parties on the very day of agreement to sale. 14.1 From the very perusal of this agreement to sale, it is found that under the terms and conditions in clause (b) it agreed as under: The balance amount out of the full consideration of Rs. 30,60,000/- will be paid by the 2nd party as per convenience to the 1st party before execution of the sale-deed. 14.1 From the very perusal of this agreement to sale, it is found that under the terms and conditions in clause (b) it agreed as under: The balance amount out of the full consideration of Rs. 30,60,000/- will be paid by the 2nd party as per convenience to the 1st party before execution of the sale-deed. 14.2 From this very condition, it is evident that no date or time was fixed to execute the sale-deed in compliance of agreement to sale dated 21.01.2012 rather the balance amount of the full consideration was to be paid by the 2nd party as per convenience to the 1st party before the execution of sale-deed. 14.3 From the bare perusal of this condition, it is found that rest of the balance amount was to be paid as per convenience of 2nd party i.e. Shri. Sudhena @ Sano Darogha which is apparent from the very clause (b). 14.4 The interpretation of the same as contended by learned Counsel for the respondent cannot be made that the payment was to be made as per convenience of the 1st party. So far as the convenience to execute the sale-deed on making the payment of the rest of the amount on the part of plaintiff is concerned, same has to be inferred from the conduct, act to show his readiness and willingness to get the sale-deed executed in his favour. 14.5 Herein the notice which were issued by the plaintiff are to be taken into consideration to show his readiness and willingness to get the sale-deed executed in his favour in compliance of the agreement to sale. 14.6 From the documentary evidence on record, it is found that plaintiff has never given any notice to the defendant to get the sale-deed executed in his favour on payment of the rest of the amount, as per his convenience as agreed in the agreement to sale. The word convenience on the part of the plaintiff does not mean the indefinite inaction on the part of the plaintiff to express his intention for getting the sale-deed executed in his favour as per his convenience. This convenience cannot be deferred for uncertain period. The word convenience on the part of the plaintiff does not mean the indefinite inaction on the part of the plaintiff to express his intention for getting the sale-deed executed in his favour as per his convenience. This convenience cannot be deferred for uncertain period. Admittedly, the plaintiff has given no notice to the defendant showing his readiness and willingness to get the sale-deed executed asking the defendant to appear on any date fixed before the Office of Sub-Registrar concerned to execute the sale-deed in his favour after getting the rest of the balance amount. 14.7 As per averment made in the plaint cause of action arise firstly when the defendant himself had given notice through his Advocate on 08.09.2012 to the plaintiff. From the very perusal of the notice which was given to defendant through his Advocate and same was received by the plaintiff. Admittedly in this notice it is stated that the defendant had asked the plaintiff many times to pay the entire consideration and to get the sale-deed executed in his favour but the same request was turned down by the plaintiff and lastly the plaintiff was asked to get the sale-deed executed in his favour within 10 days from the receipt of the notice. In failure the defendant would be compelled to sell the same to any other person and to return the money to the plaintiff. 14.8 This notice dated 08.09.2012 which was given by the defendant through his Advocate to plaintiff was replied by the plaintiff through his Advocate. The reply notice is dated 13.09.2012. The copy of the same is filed on behalf of the defendant. Para 5 of this notice is relevant which is given here-in-below: That the agreement for sale dated 21.01.2012 still subsists and your client is bound by the terms and conditions of the said agreement and violation thereof will invite legal action both in criminal and civil forum against your client. 14.9 From the very perusal of this reply notice dated 13.09.2012 the plaintiff has nowhere shown in this reply notice that when he is ready to get the sale-deed executed in his favour as per terms and conditions of agreement to sale at his convenience. In the whole notice he nowhere shown any date or time for execution of the sale-deed in compliance of the agreement to sale by showing his convenience as per agreement to sale. In the whole notice he nowhere shown any date or time for execution of the sale-deed in compliance of the agreement to sale by showing his convenience as per agreement to sale. 15. Further on behalf of the defendant one more notice was given on 27.09.2012 in which it is stated that the defendants were undergoing acute financial crunch and if the plaintiff was not interested to purchase the land within a week from the receipt of the notice, the defendant will sell the same to any other person. In compliance of the notice dated 27.09.2012 given by the defendant no reply notice was given by the plaintiff rather on 17.10.2012 a cheque of Rs. 5,00,000/- bearing No. 657965 was remitted towards the balance amount of the consideration. This cheque was returned by the defendant as is evident from the further notice given by the defendant dated 20.10.2012 whereby the defendant had cancelled the agreement to sale taking the view that the plaintiff was not willing to get the sale-deed executed in his favour. 16. Certainly, the plaintiff had made further payment of Rs. 5,00,000/- through cheque which was returned; but even then plaintiff has not expressed his intention to get the sale-deed executed at his convenience in compliance of the agreement to sale in question. 17. The thorough conduct on the part of the plaintiff shows that he having taken the undue advantage of the terms and conditions as given in clause (B) of the agreement to sale that which was to be executed by the 2nd party i.e. the plaintiff/purchaser as per convenience. After execution of the agreement to sale on 21.01.2012 prior to filing this suit for specific performance, the plaintiff has not given any notice and even has not expressed his intention to the defendant to get the sale-deed executed in his favour as per his convenience in compliance of agreement to sale which is shown from the oral as well as documentary evidence on record. The pleading of readiness and willingness which was made in the plaint, but the same is not proved on behalf of the plaintiff from the oral or documentary evidence. 18. Consequently, the plaintiff is not entitled to the discretionary relief of getting the specific performance of the agreement to sale in his favour. The pleading of readiness and willingness which was made in the plaint, but the same is not proved on behalf of the plaintiff from the oral or documentary evidence. 18. Consequently, the plaintiff is not entitled to the discretionary relief of getting the specific performance of the agreement to sale in his favour. From the date of execution of the sale-deed and up-to the date of filing the suit for specific performance and even during his Examination-in-chief the plaintiff has nowhere averred on which date he is ready to get the sale-deed executed in his favour in compliance of agreement to sale rather he relies on the terms and conditions given in the clause (B) which was at the convenience of the 2nd party i.e. plaintiff. But he nowhere has shown his convenient date of time to get the sale-deed executed in his favour even during the pendency of the suit. 18.1 Herein it would be relevant to give certain legal propositions of law as laid down by the Hon'ble Apex Court. The Hon'ble Apex Court held in Atma Ram v. Charanjit Singh, AIR 2020 SC 3413 : 9. Coming to the second aspect revolving around Section 16(c), a look at the judgment of the Trial Court would show that no issue was framed on the question of readiness and willingness on the part of the petitioner/plaintiff in terms of section 16(c) of the Specific Relief Act, 1963. The fact that the petitioner chose to issue a legal notice dated 12.11.1996 and the fact that the petitioner created an alibi in the form of an affidavit executed before the Sub-Registrar on 7.10.1996 (marked as Exhibit P2) to show that he was present before the Sub-Registrar for the purpose of completion of the transaction, within the time stipulated for its performance, was not sufficient to conclude that the petitioner continued to be ready and willing even after three years, on 13.10.1999 when the plaint was presented. No explanation was forthcoming from the petitioner for the long delay of three years, in filing the suit (on 13.10.1999) after issuing a legal notice on 12.11.1996. The conduct of a plaintiff is very crucial in a suit for specific performance. No explanation was forthcoming from the petitioner for the long delay of three years, in filing the suit (on 13.10.1999) after issuing a legal notice on 12.11.1996. The conduct of a plaintiff is very crucial in a suit for specific performance. A person who issues a legal notice on 12.11.1996 claiming readiness and willingness, but who institutes a suit only on 13.10.1999 and that too only with a prayer for a mandatory injunction carrying a fixed court fee relatable only to the said relief, will not be entitled to the discretionary relief of specific performance. 18.2 The Hon'ble Apex Court held in Mrs. Sandhya Rani Sarkar v. Smt. Sudha Rani Debi, AIR 1978 SC 537 : 16. Mr. Chatterjee argued that the High Court clearly committed an error in law in holding that the plaintiff had no wherewithal to pay the balance of consideration and it was further argued that the High Court took into consideration extraneous circumstances such as the insolvency of the husband of the plaintiff to come to the conclusion that the plaintiff had not necessary wherewithal with her to pay the balance of consideration. In this connection the plaintiff's case is that the amount of Rs. 2,000 paid as earnest money was advanced by her husband and she was to procure the balance of consideration by selling her ornaments which she had with her. The plaintiff has not stepped into the witness box. There is no material SC 547 to show that she had enough ornaments which would have fetched nearly Rs. 45,000. But reliance was placed on the pass book of the plaintiff's husband. The pass books show an overdraft account in the name of the husband of the plaintiff. Assuming that the entries in the pass book show that the husband of the plaintiff could have procured the amount, the plaintiff's case is that she was to sell the ornaments to procure the balance of consideration. If that was the case, she wanted to make out, it was incumbent upon her to step into the witness box. Now, as against this, there are some tell-tale facts on record which permit an irresistible inference that the plaintiff did not have necessary wherewithal to pay the balance of consideration and, therefore, she put forth one or the other excuse to avoid the performance of her part of the contract. Now, as against this, there are some tell-tale facts on record which permit an irresistible inference that the plaintiff did not have necessary wherewithal to pay the balance of consideration and, therefore, she put forth one or the other excuse to avoid the performance of her part of the contract. Two such pretexts can be readily pointed out, one when she insisted for the sale of one foot of land to the north of the property which claim was thoroughly unjust and improper, and second, the demand of Rs. 2,000 spent by her in making the tenant vacate a portion of the premises. The contract was to be completed by April 1956. It was not completed till 1957 even though the defendant after satisfying the queries of the plaintiff fixed different dates on different occasions calling upon the plaintiff to complete the transaction. Thereafter plaintiff filed a suit. The suit was decreed on 30th April 1962. We have already at another place referred to this decree to point out that the plaintiff by that decree was called upon to deposit the balance of consideration within 30 days of the date of the decree. This would mean that she had to deposit the balance of consideration by the end of May 1962. She did not deposit the amount by the stipulated date. She asked for extension of time. Thereafter she moved an application for ascertaining the area of axcess land which was being sold to her. Under this pretext she did not deposit the balance of consideration. Thereafter when the Commissioner prepared the map and the Court fixed another date to deposit the amount, she questioned the order of the Court in the High Court and after the High Court dismissed her revision application and called upon her to deposit the balance of consideration she again sought extension and ultimately deposited the amount on 6th Feb.1968. This would show that at the material point of time she did not have the necessary wherewithal to pay the balance of consideration and to take the conveyance and this would provide tell-tale evidence to explain her conduct in putting forth one or the other impediment in the path of performance of the contract. This would show that at the material point of time she did not have the necessary wherewithal to pay the balance of consideration and to take the conveyance and this would provide tell-tale evidence to explain her conduct in putting forth one or the other impediment in the path of performance of the contract. If in the background of this evidence the High Court reached the conclusion that she did not have the necessary wherewithal with her to pay the balance of consideration and take the deed of conveyance, one cannot take any exception to it. But in this connection Mr. Chatterjee contended that the plaintiff seeking specific performance of the contract is not required to show that she has at all material time necessary cash with her to perform her part of the contract. It is enough if the plaintiff can show that she was in a position to raise the money required at or about the time when the contract was to be performed and she discharges the obligation of proving readiness and willingness so far as the financial aspect is concerned. Reliance was placed on Jitendra Nath Roy v. Smt. Maheshwari Bose, AIR 1965 Calcutta 45. Undoubtedly, the question would be while examining the readiness and willingness of the plaintiff to perform her part of the contract of find out whether she would be in a position to take the conveyance by paying the balance of consideration and that the enquiry may well be made whether she would be in a position to raise the money. Reference was also made to Bank of India Ltd. v. Jamsetji A.H. Chinoy, 77 Ind App 76 : AIR 1950 PC 90 where it was held that the plaintiff seeking to prove that he was ready and willing to fulfil his financial obligations has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction. After the High Court dismissed her revision application and fixed the date 8th Jan. 1968 for depositing the amount, she had no further contention to put forth and she should have deposited the amount yet she sought extention of time. And along with this, one must keep in view her contention that she had to sell her ornaments to raise the amount for which she did not step into the witness box to prove her contention. And along with this, one must keep in view her contention that she had to sell her ornaments to raise the amount for which she did not step into the witness box to prove her contention. In this background it does appear that the plaintiff had not the necessary wherewithal to perform her part of the contract. 19. In view of the discussion made hereinabove, the readiness and willingness to get the sale-deed executed in his favour in compliance of agreement to sale is not found proved on the part of the plaintiff. As such the finding recorded by the learned court-below on this very issue bears no infirmity and needs no interference. Accordingly, this First Appeal deserves to be dismissed. 20. This First Appeal is dismissed. The impugned Judgment dated 04.09.2018 and decree dated 18.09.2018 passed in Original Suit 74 of 2012/Title Suit No. 74 of 2012 by the learned trial court is affirmed.