JUDGMENT : ANU SIVARAMAN, J. This appeal is filed by the defendant aggrieved by the judgment and decree dated 25.09.2012 of the Fast Track Court - IV, Bangalore Rural District, Bengaluru, (for short 'the Trial Court') in O.S.No.36/2011. 2. We have heard Shri. Shreevatsa, learned senior counsel as instructed by Smt. Parvathy Nair, learned Advocate appearing for the appellant/defendant and Shri. V. Lakshminarayana, learned senior counsel as instructed by Shri. P. B. Raju, learned Advocate appearing for the respondents/plaintiffs. 3. For the sake of convenience, the parties are referred to as per the rankings before the trial Court. 4. Brief facts: The suit was filed for specific performance of an agreement of sale dated 24.08.2010. The contention of the plaintiffs was that the agreement was executed for the sale of the suit schedule property and an advance amount of Rs.10,00,000/- was paid to the defendant. Three months time was fixed for payment of the balance amount of Rs.21,20,000/- out of the agreed consideration amount of Rs.31,20,000/. The plaintiffs contended that they were ready with the balance sale consideration and had called upon the defendant to register the sale deed, but, no steps were taken. On these grounds, the suit was filed. 5. The defendant entered appearance and filed the written statement admitting the execution of the sale agreement, but contended that the agreement was insufficiently stamped. It was further contended that there was a sentence fraudulently sought to be inserted in the agreement that physical possession of the suit schedule property would be handed over to the purchaser but it was only after striking out the said sentence that the agreement was executed. However, the plaintiffs had trespassed into the property and put up a shed, which amounted to a violation of the agreement conditions. Thereafter, notice dated 28.10.2010 was issued by the plaintiffs calling upon the defendant to fix the date of registration which was duly replied on 13.11.2010, refusing to execute the registered sale deed and calling upon the plaintiffs to collect the earnest amount. It was further contended that the plaintiffs were not entitled for the relief of specific performance under Section 16 (b) of the Specific Relief Act, 1963 and Section 16 (1) of the Indian Contract Act, 1872 . 6. The Trial Court framed the following issues:- "1. It was further contended that the plaintiffs were not entitled for the relief of specific performance under Section 16 (b) of the Specific Relief Act, 1963 and Section 16 (1) of the Indian Contract Act, 1872 . 6. The Trial Court framed the following issues:- "1. Whether the defendant proves that the agreement dated 24.08.2010 entered between him and the plaintiffs is a invalid document? 2. Whether the defendant proves that the plaintiffs have trespassed into the suit schedule property without his consent and violated the terms of the agreement and it amounts to breach of contract? 3. Whether the defendant proves that the relief claimed by the plaintiffs is barred U/s 16(b) of Specific Relief Act and section 16(1) of the Indian Contract Act? 4. Whether the plaintiff is entitled for the relief of specific performance of the agreement dated 24.08.2010?" 7. After considering the oral and documentary evidence adduced, the Trial Court found that the plaintiffs had paid the deficit stamp duty and penalty before the District Registrar on 05.01.2011 and that the document as admissible in evidence. Further, it was found that the contention of the defendant that the plaintiffs had trespassed into the property on 20.10.2010 could not be believed. Further, it was found that the agreement was not vitiated by fraud or undue influence and that the defendant had not raised the contention in his written statement that the plaintiffs were not ready and willing to perform their part of the agreement and as such, the evidence sought to be adduced on that account could not be considered. On these findings, the suit was decreed and the defendant is directed to execute and register the sale deed as per Ex.P1- agreement dated 24.08.2010. 8. The learned senior counsel appearing for the appellant submits that the judgment and decree of the Trial Court is liable to be set aside on the short ground that the plaintiffs in the plaint averments specifically admitted that the defendant had terminated the contract. It is contended that a suit for specific performance of the contract which admittedly stood terminated would not be maintainable unless a declaratory relief is sought to declare that the termination is invalid. It is submitted that in the instant case, the relief sought was only for specific performance of the contract and there was no relief to declare that the termination was not valid. 9. It is submitted that in the instant case, the relief sought was only for specific performance of the contract and there was no relief to declare that the termination was not valid. 9. It is further contended that the agreement specifically provided three months time for payment of the amount and admittedly no payment of the balance amount had been made or tendered within three months as provided in the agreement. It is contended that since the contract stood terminated going by the pleadings of the plaintiffs and since the defendant had specifically called upon the plaintiffs to collect the advance paid by him, the Trial Court could not have decreed the suit as sought for. 10. In support of his contentions, he has placed reliance on the following judgments:- • I.S. Sikandar (Dead) by LRs v. K. Subramani and Others , reported in (2013) 15 SCC 27 ; and • Chand Rani (Smt) (dead) by LRS. v. Kamal Rani (Smt) (Dead) by LRS, reported in (1993) 1 SC 519 11. The learned senior counsel appearing for the respondents, on the other hand, contends that the plaint allegations have to be read and understood as a whole and the reliance sought to be placed on a stray sentence in the plaint is misconceived and mischievous. It is contended that by reading of the plaint averments would show that the plaintiffs had specifically averred that they had called upon the defendant to execute the sale deed both orally and in writing within time by way of the notice which was produced in evidence. It is further contended that it was the specific case of the plaintiffs that the attempt made by the defendant to terminate the contract on extraneous grounds which are not available in the agreement between the parties could not be countenanced. 12. It is contended that there could be no termination of the agreement for sale except for violation of the terms and conditions as provided in the agreement and that the contentions of the defendant were considered and found against by the Trial Court. Further, it is contended that the defendant had not raised any contention as regards the readiness and willingness of the plaintiffs in the written statement and attempt to adduce evidence in that regard was rightly rejected by the Trial Court. Further, it is contended that the defendant had not raised any contention as regards the readiness and willingness of the plaintiffs in the written statement and attempt to adduce evidence in that regard was rightly rejected by the Trial Court. It is submitted that in the facts and circumstances of the instant case, there is absolutely no ground made out to interfere with the well-reasoned judgment of the Trial Court and that the appeal is liable to be dismissed. 13. In support of his contentions, he has mainly placed reliance on the following judgments:- • A. Kanthamani v. Nasreen Ahmed reported in (2017) 4 SCC 654 ; and • H. Anwar Khan v. G. Ravi Kumar and Others reported in (2017) SCC OnLine Hyd 824. 14. In support of the contention that the plea which is not taken in the written statement cannot be raised in the appeal for the first time, the following decisions are relied on:- • Samir Chandra Das v. Bibhas Chandra Das and Others reported in (2010) 6 SCC 432; • Union of India v. Ibrahim Uddin and Another reported in (2012) 8 SCC 148 ; • Bondar Singh and Others v. Nihal Singh and Others , reported in (2003) 4 SCC 161; • Bhagat Singh and Others v. Jaswant Singh , reported in AIR 1966 SC 1861 and • Chittoori Subbanna v. Kudappa Subbanna and Others reported in AIR 1965 SC 1325. 15. On the contention that unilateral termination is impermissible, the learned senior counsel appearing for the respondents has relied on the following decisions:- • Damodar Valley Corporation. v. K.K. Kar reported in (1974) 1 SCC 141 ; • UHL Power Co. Ltd. v. State of Himachal Pradesh reported in (2022) 4 SCC 116; and • Suresh Kumar Wadhwa v. State of Madhya Pradesh reported in (2017) 16 SCC 757. The learned senior counsel has also placed reliance on several other decisions. 16. We have heard the parties and considered the contentions advanced. The question which would arise for our consideration is:- "Whether the Trial Court was justified in decreeing the suit for specific performance on the basis of the pleadings and the evidence adduced in the instant case?" 17. The plaint averments were specifically to the effect that the agreement between the parties stood terminated at the instance of the defendant. The question which would arise for our consideration is:- "Whether the Trial Court was justified in decreeing the suit for specific performance on the basis of the pleadings and the evidence adduced in the instant case?" 17. The plaint averments were specifically to the effect that the agreement between the parties stood terminated at the instance of the defendant. In paragraph No.6 of the plaint, it is specifically averred as under:- "6. The Plaintiffs submit that on 28.10.2010 they got issued a legal notice through their Advocate to the Defendant by requesting him to fix a date for registration of the sale deed there by calling upon him to receive the balance sale consideration amount. The said legal notice has been sent to his residential address and office address both in RPAD and UCP. The same has been received by him. The Defendant instead of executing the sale deed, he has sent a untenable reply on 13.11.2010. In the said reply the Defendant has admitted the execution of sale agreement dated 24.08.2010 and receiving of Rs.10,00,000/- as advance sale consideration amount. But in his reply the Defendant falsely stated that the Plaintiffs in the beginning of October 2010 forcibly entered into the schedule property and constructed a small room on the schedule property without his knowledge, consent and permission. The Plaintiffs are never entered into any portion of the suit schedule property and they have not put up any construction as stated by the Defendant. This is only a concocted story by the Defendant, to evade the completion of the sale transaction. Under the reply the Defendant refused to execute the register sale deed in favour of the Plaintiffs, and further the Defendant has terminated and cancelled the agreement of sale dated 24.08.2010 without any valid reasons. The Plaintiffs are always been ready and willing to perform their part of contract, since from the date of agreement of sale entered into between them, they are ready with the balance sale consideration amount to get the sale deed registered in their favour. The Plaintiffs are ready to deposit the balance sale consideration amount before this Hon'ble Court provided this Hon'ble Court permits them to deposit." (emphasis supplied by this Court) 18. The Plaintiffs are ready to deposit the balance sale consideration amount before this Hon'ble Court provided this Hon'ble Court permits them to deposit." (emphasis supplied by this Court) 18. The learned senior counsel appearing for the appellant relied on the provisions of Order VI Rule 13 of CPC to contend that there is no requirement to plead and prove what the law presumes. The plaintiffs having specifically stated in the plaint that the defendant had illegally terminated the agreement, a decree for specific performance could have been passed only if the termination was found to be invalid. 19. The contention of the plaintiffs is to the effect that the pleading in the plaint was only a stray sentence and that the entire plaint has to be read as a whole. Even if that contentions were to be accepted, we notice that the materials relied on by the plaintiffs would show that the defendant had terminated the contract within the period of contract itself. Whether such termination was illegal or not was never urged before the Trial Court and the Trial Court was not called upon to consider the said question. It is pertinent to note that the following pleadings in paragraph No.8 of the written statement of the defendant, which reads as follows:- "8. Immediately after advice of the said police, the plaintiffs have issued a notice to this defendant dated 28.10.2010 calling upon him to fix a date for registration of the sale deed. The said notice is received by the defendant and the defendant in turn sent a reply dated 13.11.2010 containing that intention of the plaintiffs was dishonest as is evident from the agreement he wanted to take forceful possession without making full payment. Even after deletion of the said clause he trespassed into the said property and constructed the shed. Hence he refused to execute the Registered Sale Deed and also calling upon him to collect the Earnest amount of Rs.10,00,000/- which was given to him as an advance. Instead of receiving the amount of Rs.10,00,000/- from the Defendant, the plaintiffs have approached this Court with false grounds. The plaintiffs have not come to the Court with clean hand on this ground alone the suit is liable to be dismissed." 20. Instead of receiving the amount of Rs.10,00,000/- from the Defendant, the plaintiffs have approached this Court with false grounds. The plaintiffs have not come to the Court with clean hand on this ground alone the suit is liable to be dismissed." 20. The learned senior counsel appearing for the respondents has placed strong reliance on the judgment of the Apex Court in A. Kanthamani 's case (supra), to contend that the contention that a suit for specific performance is not maintainable without seeking a declaration that the termination of the agreement was invalid is not applicable in all circumstances. However, we notice that the Apex Court in A. Kanthamani 's case (supra), was considering a situation where the maintainability of the suit for specific performance was neither raised by the defendant in the written statement nor in the first appeal before the High Court nor in the grounds of the appeal before the Apex Court. Further, since no plea was raised in the written statement, no issue was framed and as such, there was no finding on the said aspect. However, in the instant case, the specific pleading in the plaint itself was to the effect that there was an invalid termination of contract by the defendant. In the circumstances, we are of the opinion that it was for the plaintiff to have pleaded and proved that the termination was invalid and that the relief of specific performance of the contract was to be granted to him. From the issues raised by the trial Court, we find that the defendant has been called upon to prove the invalidity of the document and the breach of contract. 21. Further, the learned senior counsel appearing for the appellant has placed reliance on a recent decision of the Apex Court in R. Kandasamy (Since dead) & other v. T.R.K. Sarawathy & Anr with M/s. ABT Limited v. T.R.K. Sarawathy & Ors., reported in 2024 INSC 884 22. After considering the decision in A. Kanthamani 's case (supra), as well as several other binding judgments, the Division Bench of the Apex Court held that A. Kanthamani 's case (supra), has not addressed on the effect of non existence of a jurisdictional fact (the existence of a binding contract) on the right to relief claimed by the plaintiff in a suit for specific performance. It was clarified that any failure on the part of the trial Court to frame an issue on maintainability cannot trim the powers of the appellate Court. 23. We are of the opinion that the decision in A. Kanthamani 's case (supra), and the other precedents, which are relied on by the learned senior counsel appearing for the respondents cannot be pressed into service in the instant case since it is an admitted case of both the parties that there was a termination of the contract. The suit for specific performance could not have been decreed unless the termination was found to be invalid. 24. Though the learned senior counsel appearing for the respondents has relied on several judgments, we are of the opinion that the said judgments are not applicable to the facts of this case where termination is pleaded in the plaint itself. In the absence of a prayer for setting aside the termination or declaration that the termination was invalid, the relief as sought for could not have been granted. 25. In the above view of the matter, we are of the opinion that the appeal is liable to succeed. In the result:- (i) Appeal is allowed. (ii) The judgment and decree of the Trial Court dated 25.09.2012 passed in O.S.No.36/2011, is set aside. (iii) O.S.No.36/2011 for specific performance shall stand dismissed. (iv) The appellant-defendant shall refund the advance sale consideration of Rs.10,00,000/- to the respondentsplaintiffs with interest at the rate of 6% per annum from the date of the suit till its realisation.