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2025 DIGILAW 236 (AP)

K. Sudhakar v. P Subba Raja Kumari

2025-02-07

VENUTHURUMALLI GOPALA KRISHNA RAO

body2025
JUDGMENT : Venuthurumalli Gopala Krishna Rao, J. This Appeal, under Section 96 of the Code of Civil Procedure [for short „the C.P.C.?], is filed by the Appellant challenging the decree and judgment, dated 09.06.2003 in O.S.No.41 of 1999 passed by the Additional Senior Civil Judge, Eluru [for short „the trial Court?]. 2. The appellant herein is the plaintiff and 1 st respondent herein is the defendant in O.S.No.41 of 1999. It is to be noted here during the pendency of the appeal, the respondent Nos.2 and 3 are added as parties in the appeal and the 1 st respondent died and her legal representatives are brought on record as respondent Nos.4 to 7. 3. The appellant/plaintiff filed the suit for specific performance of agreement of sale, dated 15.02.1996 and for delivery of possession or in the alternative, for return of the sale consideration with interest and for costs. 4. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court. 5. The brief averments of the plaint in O.S.No.41 of 1999 are as under: The defendant is the absolute owner of the plaint schedule site for an extent of 700 sq. yards in Vatluru, Pedapadu Mandal, West Godavari District. The defendant got the property by succession as sole legal heir of her father late Vegunta Anjaneyulu. She intended to sell the site and after some negotiations, bargain was settled down between the plaintiff and the defendant. She agreed to sell the plaint schedule site to the plaintiff at Rs.445/- per sq. yard. The defendant received a sum of Rs.50,000/- as advance on 15.02.1996 and executed a sale agreement on 15.02.1996 in favour of the plaintiff duly acknowledged the receipt of Rs.50,000/-. The defendant should get the site measured on or before 20.04.1996 and the plaintiff should pay the value of the site for measured extent at Rs.445/- per sq. yard and the defendant should be bound to execute a registered sale deed for the site in favour of the plaintiff and the defendant agreed to deliver possession of the property at the time of registration. If the defendant failed to measure the property and the plaintiff failed to pay the remaining sale consideration, the remaining sale consideration shall be paid with interest at 24% per annum with yearly compound, but the defendant is ready and willing to perform her part of contract. If the defendant failed to measure the property and the plaintiff failed to pay the remaining sale consideration, the remaining sale consideration shall be paid with interest at 24% per annum with yearly compound, but the defendant is ready and willing to perform her part of contract. Time is not essence of the contract. The plaintiff is always been ready and willing to perform his part of contract to pay the balance sale consideration to the defendant and to obtain the sale deed in his favour at his expenses. The plaintiff paid a further sum of Rs.90,000/- to the defendant on 22.10.1997 to her son-in-law Chilaka Rambabu who endorsed the said payment of Rs.90,000/- out of the said sale consideration on the back of the second sheet of stamp of the sale agreement and duly signed acknowledging the said payments. Thus, the plaintiff received an amount of Rs.1,40,000/- towards sale consideration under the said agreement. The plaintiff got issued a legal notice on 15.04.1999 through his counsel to the defendant demanding the execution of the registered sale deed on receipt of balance sale consideration and to perform her part of contract. The defendant having received the said notice simply kept quiet and failed to execute a regular sale deed and failed to give any reply so far. If for any reason this Court is not inclined to grant the main relief of specific performance of agreement of sale, dated 15.02.1996, then the plaintiff is entitled to refund the advance sale consideration of Rs.1,40,000/- with interest at 18% per annum. 6. The brief averments in the written statement filed by the defendant are as follows: The defendant is the absolute owner of plaint schedule site for an extent of 700 sq. yards, situated at Vatluru village of Pedapadu Mandal and the defendant agreed to sell the same to the plaintiff at Rs.445/- per sq. yard and that the defendant has also received an amount of Rs.50,000/- as advance and executed an agreement of sale, dated 15.02.1996 in favour of the plaintiff. The defendant denied that the plaintiff is always ready and willing to perform his part of contract to pay the balance sale consideration to the defendant and to obtain the sale deed in his favour and that the defendant is bound to get the site measured as per the terms and conditions of the sale agreement. The defendant denied that the plaintiff is always ready and willing to perform his part of contract to pay the balance sale consideration to the defendant and to obtain the sale deed in his favour and that the defendant is bound to get the site measured as per the terms and conditions of the sale agreement. The defendant admitted that the plaintiff got issued a legal notice on 15.04.1999 through his counsel demanding execution of the registered sale deed on receipt of balance sale consideration and to perform her part of contract. The defendant having received the said notice got issued a reply on 03.05.1999. The defendant contended that as per the recitals of the agreement of sale, dated 15.02.1996, the time fixed for performance of contract was 20.04.1996 but the plaintiff did not come forward even in spite of several demands from the defendant to pay back the remaining amount and to get the sale deed registered. The defendant made several efforts to complete the sale transaction but in vain. The plaintiff has no financial capacity to purchase the said site. There is no concluded contract between the plaintiff and defendant. Chilaka Rambabu is not at all authorized by the defendant to collect any amount on her behalf. The claim of the plaintiff is untenable. The plaintiff filed the suit after issuance of notice with ulterior motive of causing harassment and to deceive the defendant apart from causing huge monetary loss. 7. Based on the above pleadings, the trial Court framed the following issues: (1) Whether the plaintiff is entitled for specific performance of agreement of sale and for possession as prayed for? (2) Whether the plaintiff is entitled for alternative relief as prayed for? (3) To what relief? 8. During the course of trial in the trial Court, on behalf of the Plaintiff, PW1 was examined and Ex.A1 to Ex.A5 were marked. On behalf of the Defendant, DW1 and DW2 were examined and Ex.B1 was marked. 9. After completion of the trial and hearing the arguments of both sides, the trial Court decreed the suit in part vide its judgment, dated 09.06.2003 by granting relief of refund of advance amount, against which the present appeal is preferred by the plaintiff in the suit questioning the Decree and Judgment passed by the trial Court for not granting the primary relief of specific performance of agreement of sale. 10. 10. Heard Smt. Nimmagadda Revathi, learned counsel for the appellant and heard Sri D.S. Sivadarshan, learned counsel for the respondents. 11. Learned counsel for the appellant would contend that the decree and judgment insofar as it went against the appellant are contrary to law, facts and circumstances of the case. She would further contend that the trial Court erred in not properly exercising its discretion though the relief of specific performance is a discretionary relief. She would further contend that the trial Court came to a wrong conclusion and granted alternative relief of refund of advance amount without granting the main relief of specific performance of agreement of sale. She would further contend that the appeal may be allowed by setting aside the finding given by the learned trial Judge that the plaintiff is entitled alternative relief of refund of advance amount and by granting main relief of specific performance of agreement of sale, dated 15.02.1996. 12. Per contra, learned counsel for the respondents would contend that on appreciation of the entire evidence on record, the learned trial Judge rightly rejected the main relief of specific performance of agreement of sale and granted the alternative relief of refund of advance amount and there is no need to interfere with the findings given by the learned trial Judge. 13. Now the points for determination in the appeal are: 1) Whether the plaintiff is entitled the main relief of specific performance of agreement of sale, dated 15.02.1996? 2) Whether the trial Court is justified in rejecting the main relief of specific performance of agreement of sale and whether the trial Court is justified in granting alternative relief of refund of advance amount? 3) Whether the decree and judgment passed by the trial Court needs any interference? 14. Point No.1: Whether the plaintiff is entitled the main relief of specific performance of agreement of sale, dated 15.02.1996? The case of the plaintiff is that the defendant is owner of the plaint schedule site and she agreed to sell the plaint schedule site for an extent of 700 sq. yards to the plaintiff at Rs.445/- per sq.yard. The plaintiff further pleaded that the defendant received a sum of Rs.50,000/- towards advance on 15.02.1996 and executed a stamped sale agreement, dated 15.02.1996 in favour of the plaintiff and duly acknowledged the receipt of Rs.50,000/- in the agreement itself. yards to the plaintiff at Rs.445/- per sq.yard. The plaintiff further pleaded that the defendant received a sum of Rs.50,000/- towards advance on 15.02.1996 and executed a stamped sale agreement, dated 15.02.1996 in favour of the plaintiff and duly acknowledged the receipt of Rs.50,000/- in the agreement itself. The plaintiff further pleaded that though he is ready and willing to perform his part of contract, the defendant failed to discharge her part of contract to measure the plaint schedule site and that after issuance of legal notice, the plaintiff approached the Court for granting relief of specific performance of agreement of sale. 15. The agreement of sale is marked as Ex.A.1. The recitals incorporated in Ex.A.1 are as follows: (i) The defendant herein agreed to sell the plaint schedule site to the plaintiff at Rs.445/- per sq. yard; (ii) The defendant should get the site measured on or before 20.04.1996 and the plaintiff should pay the value of the site for measured extent at Rs.445/- per sq. yard and the defendant should be bound to execute a regular sale deed for the site in favour of the plaintiff; and (iii) If the defendant failed to measure the property and the plaintiff failed to pay the remaining balance sale consideration, the remaining balance sale consideration shall be paid with interest at 24% per annum with yearly compound, if the plaintiff is not ready to discharge his part of contract, but the defendant is ready and willing to perform her part of contract. 16. The execution of Ex.A.1 agreement of sale and the terms and conditions mentioned in Ex.A.1 and receipt of advance amount of Rs.50,000/- by the defendant are not at all disputed by the defendant. The recitals in Ex.A.1 are also not in dispute by the defendant. 17. In the case of K.S. Vidyanandam v. Vairavan ,[ (1997) 3 SCC 1 ] , the Apex Court held as follows: Grant of the relief of specific performance is discretionary and the Court is not bound to grant it. This Court further held that though time is not of essence to a contract relating to transfer of property, such contracts need to be completed within a reasonable time period. Thus, the time element cannot be completely ignored. This Court further held that though time is not of essence to a contract relating to transfer of property, such contracts need to be completed within a reasonable time period. Thus, the time element cannot be completely ignored. In a suit for Specific Performance of a contract, the Court is required to pose unto itself the following questions, namely:- (i) Whether there is a valid agreement of sale binding on both the vendor and the vendee and (ii) Whether the Plaintiff has all along been and still is ready and willing to perform his part of the contract as envisaged under Section 16(c) of the Specific Relief Act , 1963. There is a distinction between readiness and willingness to perform the contract and both ingredients are necessary for the relief of Specific Performance. In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar cited by Mr. Venugopal, this Court said that there was a difference between readiness and willingness to perform a contract. While readiness means the capacity of the Plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the Plaintiff. The same view was taken by this Court in Kalawati v. Rakesh Kumar. Even in a first appeal, the first Appellate Court is duty bound to examine whether there was continuous readiness and willingness on the part of the Plaintiff to perform the contract. This proposition finds support from Balraj Taneja v. Sunil Madan, and H.P. Pyarejan v. Dasappa11 where this Court approved the views taken by the Privy Council in Ardeshir Mama v. Flora Sassoon. In Malluru Mallappa v. Kuruvathappa, this Court observed and held: (SCC pp.317-19, paras 13-14 & 18) “13. It is a settled position of law that an appeal is a continuation of the proceedings of the original court. Ordinarily, the appellate jurisdiction involves a rehearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law decided by the trial court are open for reconsideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The first appeal is a valuable right of the appellant and therein all questions of fact and law decided by the trial court are open for reconsideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions.” 18. Admittedly, in the case on hand, there was a valid agreement of sale between both parties, the same is binding on both parties, therefore, the terms and conditions in Ex.A.1 agreement of sale are binding on both parties viz., plaintiff and defendant. The execution of Ex.A.1 agreement of sale under receipt of advance amount of Rs.50,000/- on the date of agreement of sale is undisputed by the defendant. Admittedly, in the case on hand, time is not essence of contract. On the date of agreement of sale from out of Rs.3,11,500/-, an amount of Rs.50,000/- was received by the defendant. It was agreed by both parties that the defendant should get the site measured on before 20.04.1996 and the plaintiff should pay the remaining balance sale consideration for the measured site at Rs.445/- per sq. yard. Of course, it is also the duty of the plaintiff to be present at the time of measurements of the site and to cooperate for measurements. Admittedly, the site was not measured on or before 20.04.1996. The defendant i.e., D.W.1 admitted in her evidence in cross examination that she has to measure the site mentioned in Ex.A.1 and the plaintiff has to pay amount to the actual extent exist, she did not issue any notice to plaintiff complaining that the plaintiff is not ready and willing to execute his part of contract and that he has no amount to pay the balance sale consideration, one Chilaka Rambabu is her third son-in-law, she has no disputes with the said Rambabu. The plaintiff admitted in his evidence in cross examination that he has no dispute regarding the measurements of the suit schedule site, the total sale consideration is Rs.3,11,500/- and he paid Rs.50,000/- as advance to the defendant at the time of execution of Ex.A.1 agreement of sale. He further admits as per terms in Ex.A.1 he has to pay the remaining balance sale consideration on or before 20.04.1996, he has not deposited the remaining balance sale consideration amount in any bank before stipulated date. He did not convey the same to the defendant. 19. In the case on hand, within a stipulated period of time i.e., on or before 20.04.1996 there is no exchange of notices in between both the parties to the contract. The defendant did not issue any legal notice to the plaintiff on or before 20.04.1996 that she is ready for measuring the site and insisted the plaintiff for his presence at the time of measurements likewise, the plaintiff also did not issue any legal notice to the defendant within the stipulated date i.e., on or before 20.04.1996 that he is ready to pay the balance sale consideration and also ready for measurements. It is relevant to say that for measuring the schedule site, the presence of both parties to the contract is to be required. After lapse of more than three years from the date of Ex.A.1 agreement of sale i.e., on 15.04.1999, the plaintiff got issued a legal notice to the defendant through his counsel to measure the suit schedule site and he is ready to pay the balance sale consideration. Ex.B.1 goes to show that on 03.05.1999 the defendant got issued a reply notice through her Advocate by informing that she is always ready and willing to measure the site and she is ready and willing to receive the balance sale consideration and she is ready to execute the registered sale deed in terms of the contract of agreement of sale under Ex.A.1 and has thrown the blame on the plaintiff. Admittedly, in the case on hand, within a stipulated time i.e., on or before 20.04.1996 the defendant has not issued any notice to the plaintiff by informing that she is ready for measurements of site but the plaintiff is not coming forward to discharge his obligation. Admittedly, in the case on hand, within a stipulated time i.e., on or before 20.04.1996 the defendant has not issued any notice to the plaintiff by informing that she is ready for measurements of site but the plaintiff is not coming forward to discharge his obligation. When elicited in cross examination, P.W.1 admits that he has no dispute regarding the measurements of the suit schedule site, the total consideration is Rs.3,11,500/-, he paid Rs.50,000/- as advance to the defendant at the time of execution of Ex.A.1. As per terms in Ex.A.1 he has to pay the remaining balance sale consideration on or before 20.04.1996. Admittedly, the plaintiff did not issue any legal notice within a stipulated period of time i.e., on or before 20.04.1996 to the defendant by informing his readiness to pay the balance sale consideration and he is also ready for measurements. Admittedly, in the case on hand, there is no exchange of notices in between both the parties within a stipulated time. After lapse of three years from the date of agreement of sale i.e., on 15.04.1999 the plaintiff leisurely issued a legal notice to the defendant and the defendant also issued a reply notice by denying the contents of legal notice. 20. Law is well settled that the remedy for specific performance is an equitable remedy. The Court while granting decree of specific performance exercises its discretionary jurisdiction. Section 20 of the Specific Relief Act specifically provides that the Court?s discretion to grant decree of specific performance is a discretionary but not arbitrary. 21. The parameters for the exercise of discretion vested by Section 20 of the Specific Relief Act , 1963 cannot be entrapped within any precise expression of language and the contours thereof will always depend on the facts and circumstances of each case. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case, which features the experienced judicial mind can perceive without any real difficulty. 22. In the case on hand, the plaintiff approached the trial Court for seeking relief of specific performance of agreement of sale, dated 15.02.1996. Admittedly, a paltry amount of Rs.50,000/- was paid from out an amount of Rs.3,11,500/- on the date of agreement of sale. 22. In the case on hand, the plaintiff approached the trial Court for seeking relief of specific performance of agreement of sale, dated 15.02.1996. Admittedly, a paltry amount of Rs.50,000/- was paid from out an amount of Rs.3,11,500/- on the date of agreement of sale. It was agreed by both the parties that the remaining balance sale consideration shall be paid on or before 20.04.1996 otherwise; it will carries interest at 24% per annum with compoundable rests. As stated supra, the plaintiff did not choose to issue any legal notice within a stipulated period of time by informing his readiness and willingness to pay the remaining balance sale consideration and also he is ready for measuring the suit schedule site. The defendant also did not issue any legal notice within a stipulated time that she is ready for measuring the site. 23. The plaintiff pleaded in the plaint that though he is ready and willing to perform his part of contract, the defendant did not come forward to execute a sale deed. Admittedly, the said alleged bald plea is not at all proved by the plaintiff. 24. It was contended by the learned counsel for the appellant that the learned trial Judge came to a conclusion that “the defendant did not get measured the site within a stipulated period of time and that there are latches on the part of the defendant in not measuring the site.” She would further contend that the said finding is not at all challenged by the defendant by way of cross objections, therefore, this Court has no need to interfere into the said finding given by the learned trial Judge. 25. It is well settled that in a first appeal, the first appellate court is duty bound to examine all the aspects and first appellate court has to scrutinize the oral and documentary evidence on record. The first appeal is a valuable right of the appellant and therein all questions of facts and law decided by the trial court are open for reconsideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions. Therefore, I am unable to accept the contention of the learned counsel for the appellant that since no cross objections are filed by the appellant against the said finding given by the learned trial Judge, the First Appellate Court is not bound to examine the said aspect. 26. Learned counsel for the appellant relied on Narindeerjit Singh v. North Star Estate Promoters Limited , [AIR 2012 Supreme Court 2035] wherein the Apex Court held that “readiness and willingness cannot be treated as a straitjacket formula and the issue has to be decided keeping in view the facts and circumstances relevant to the intention and conduct of the party concerned.” Admittedly, in the case on hand, within a stipulated period of time, the plaintiff has not issued any legal notice informing that he is ready and willing to perform his part of contract. Law is well settled that “the Court should bear in mind that when the parties prescribed certain time limit for taking steps by one party or the other party, it must have some significance and that the said time limit cannot be ignored altogether on the ground that the time has not been made the essence of the contract relating to immovable property.” Therefore, in the case on hand, except paying paltry amount of Rs.50,000/- on the date of contract, nothing was paid by the plaintiff. Though the plaintiff pleaded that he paid an amount of Rs.90,000/- to the son-in-law of the defendant viz., Chilaka Rambabu, the said alleged payment is strongly disputed by the defendant and the same is not at all proved by the plaintiff. 27. Section 16 (c) of the Specific Relief Act , 1963 bars the relief of specific performance of a contract in favour of a person, who fails to aver and prove his readiness and willingness to perform his part of contract. 27. Section 16 (c) of the Specific Relief Act , 1963 bars the relief of specific performance of a contract in favour of a person, who fails to aver and prove his readiness and willingness to perform his part of contract. In view of Explanation (i) to clause (c) of Section 16, it may not be essential for the plaintiff to actually tender money to the defendant or to deposit money in Court, except when so directed by the Court, to prove readiness and willingness to perform the essential terms of a contract, which involves payment of money. However, Explanation (ii) to Section 16(c) of the 1963 Act says the plaintiff must aver performance or readiness and willingness to perform the contract according to its true construction. To aver and prove readiness and willingness to perform an obligation to pay money in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligation in terms of a contract, which requires payment of money, the plaintiff would have to specifically plead how the funds would be available to him. In the present case, of course, there is an averment in the plaint that the plaintiff was all along ready and willing to perform his obligations under the contract. The question is whether the plaintiff has proved his readiness and willingness to perform his obligation under the contract. 28. In a suit for Specific Performance of a contract, the Court is required to pose unto itself the following questions, namely:- (1) Whether there is a valid agreement of sale binding on both the vendor and the vendee; and (2) Whether the Plaintiff has all along been and still is ready and willing to perform his part of the contract as envisaged under Section 16(c) of the Specific Relief Act , 1963. There is a distinction between readiness and willingness to perform the contract and both ingredients are necessary for the relief of Specific Performance. There is a distinction between readiness and willingness to perform the contract and both ingredients are necessary for the relief of Specific Performance. While readiness means the capacity of the plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the plaintiff. Even in a first appeal, the first Appellate Court is duty bound to examine whether there was continuous readiness and willingness on the part of the plaintiff to perform the contract. In the case on hand, the plaintiff approached the Court for seeking relief of specific performance of agreement of sale, dated 15.02.1996. Admittedly, within a stipulated period of time either the plaintiff or the defendant did not exchange any legal notices by informing their readiness and willingness. As stated supra, a paltry amount of Rs.50,000/- has been only paid by the plaintiff on the date of agreement of sale from out of Rs.3,11,500/-. After three years from the date of agreement of sale, leisurely the plaintiff got issued a legal notice by informing his readiness to perform his part of contract. The defendant denied the contents in the legal notice. 29. In P. D'Souza vs. Shondrilo Naidu , (2004) 6 SCC 649 the Apex Court held as follows "It is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of contract. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstance of each case. No strait-jacket formula can be laid down in this behalf.... …. The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale." 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 has been rightly considered by this Court in R.C. Chandiok & Anr. 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 has been rightly considered by this Court in R.C. Chandiok & Anr. vs. Chuni Lal Sabharwal & Ors., (1970) 3 SCC 140 that "readiness and willingness" cannot be treated as a straight jacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that 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. In the case on hand, the suit agreement is dated 15.02.1996. Admittedly, there is no exchange of notices in between both the parties prior to 20.04.1996 which date fixed for performance of contract in between both the parties. The plaintiff pleaded in the plaint that even though the defendant is bound to get the site measured as per the terms and conditions of the agreement of sale, she has been simply putting off the matter on some pretext or other and promising to fulfil her obligation under the agreement putting forth some excuse or other, in spite of repeated requests from the plaintiff and the elders, who settled the bargain. Admittedly, the same is not at all proved by the plaintiff by adducing any cogent evidence except relying on self-testimony of the plaintiff as P.W.1 nothing was proved by the plaintiff. The plaintiff contended that the defendant did not get ready for measuring the site and that there are latches on the part of the defendant in not measuring the site. The plaintiff contended that the defendant did not get ready for measuring the site and that there are latches on the part of the defendant in not measuring the site. There are clear admissions of the plaintiff in his evidence in cross examination that he has no dispute regarding the measurements of the suit schedule site, the total consideration is Rs.3,11,500/-, he paid Rs.50,000/- as advance to the defendant at the time of execution of Ex.A.1 and as per terms in Ex.A.1 he has to pay the remaining balance sale consideration on or before 20.04.1996. If he is not really disputing with the measurements of the site, what prevent the plaintiff for not paying the remaining balance sale consideration of Rs.2,61,500/- within a stipulated time. Admittedly, on the date of agreement from out of Rs.3,11,500/-, a paltry amount of Rs.50,000/- was paid. Except sole testimony of the plaintiff as P.W.1, no other evidence is produced by the plaintiff to prove there are no latches on his part and the entire latches are on the part of the defendant. It is the contention of the plaintiff that though he is ready and willing to perform his part of contract, the defendant failed to discharge her obligation to measure the site and to execute a regular sale deed. As stated supra, the same is not at all proved by the plaintiff. In the plaint it was pleaded by the plaintiff that an amount of Rs.90,000/- was paid on 22.10.1997 that much after a lapse of 1 ½ year from the date of stipulated time in the agreement of sale, to the son-in-law of the defendant viz., Chilaka Rambabu and obtained endorsement by Chilaka Rambabu on the back of Ex.A.1 agreement of sale, the same is strongly disputed by the defendant. It is not the case of both parties that the defendant authorized Chilaka Rambabu to receive any part payment on behalf of the defendant. It was suggested to defendant i.e., D.W.1 in her evidence in cross examination by the learned counsel for the plaintiff that the plaintiff paid an amount of Rs.90,000/- to Chilaka Rambabu on behalf of the defendant, the said suggestion is denied by D.W.1. It was suggested to defendant i.e., D.W.1 in her evidence in cross examination by the learned counsel for the plaintiff that the plaintiff paid an amount of Rs.90,000/- to Chilaka Rambabu on behalf of the defendant, the said suggestion is denied by D.W.1. Therefore, the burden is on the plaintiff to prove the said alleged part payment of Rs.90,000/-, at least the plaintiff ought to have taken steps to summon Chilaka Rambabu to prove the said alleged payment of Rs.90,000/-, but no steps have been taken by the plaintiff for the reasons best known to him. Admittedly, Chilaka Rambabu is no way concerned with Ex.A.1 agreement of sale transaction. The plaintiff came with a false plea that he paid Rs.90,000/- to the defendant through Chilaka Rambabu. As stated supra, the same is not at all proved by the plaintiff since the defendant denied the said payment. 30. Learned counsel for the appellant placed a reliance of Zarina Siddiqui vs. A. Ramalingam alias R. Amaranathan , [(2015) 1 Supreme Court Cases 705] wherein the Apex Court held as follows: In Nirmala Anand vs. Advent Corpn. (P) Ltd., (2002) 8 SCC 146 , a three-Judge Bench of this Court on a similar issue held as under :- “6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen.” In the case on hand, the plaintiff approached the court for seeking specific performance of agreement of sale with false plea that he paid an amount of Rs.90,000/- to the son-in-law of the defendant viz., Chilaka Rambabu on behalf of the defendant, the same is not at all proved by the plaintiff. Therefore, the plaintiff approached the trial court for seeking relief of specific performance of agreement of sale with a false plea with unclean hands. 31. The relief of specific performance under the Specific Relief Act , 1963, is discretionary in nature. Section 20 of the Act explicitly stated that the court is not bound to grant such relief merely because it is lawful to do so. The equitable remedy sought by the plaintiff cannot be granted in the light of his conduct and the circumstances of the case. 32. In the case on hand, the plaintiff approached the court with unclean hands with a false plea that he paid an amount of Rs.90,000/- to the defendant through one Chilaka Rambabu who is no way concerned with Ex.A.1 agreement of sale transaction. The plaintiff has not proved the said plea by adducing oral or documentary evidence. The plaintiff also did not take any steps to summon the said Chilaka Rambabu to prove the said alleged part payment. The plaintiff has not proved the said plea by adducing oral or documentary evidence. The plaintiff also did not take any steps to summon the said Chilaka Rambabu to prove the said alleged part payment. As noticed supra, a paltry amount of Rs.50,000/- was only paid by the plaintiff from out of Rs.3,11,500/- on the date of agreement of sale and the plaintiff has issued a legal notice after lapse of 3 years from the date of agreement of sale. The plaintiff issued a legal notice after a lapse of 2 years 11 months and 25 days of stipulated period of time filed by both the parties to the agreement. 33. Considering the conduct of the plaintiff of making false statement in the plaint and also the false plea about the alleged part payment of Rs.90,000/- to the son-in-law of the defendant viz., Chilaka Rambabu on behalf of the defendant, the plaintiff is disentitled the relief of specific performance of agreement of sale. On appreciation of the entire evidence on record, the learned trial Judge rightly awarded consequential relief of refund of advance amount. Therefore, I do not find any illegality in the said finding given by the learned trial Judge except the interest portion. 34. In the result, the appeal suit is dismissed, but rate of interest in alternative relief awarded by trial Court is modified as the plaintiff is entitled interest at 12% per annum on Rs.50,000/- from the date of receipt of advance sale consideration till date of decree and thereafter at 6% per annum from the date of decree till date of realization. The rest of the judgment holds good. Considering the facts and circumstances of the case, each party do bear their own costs in the suit as well as in the appeal. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.