JUDGMENT : C. PRATHEEP KUMAR, J. 1. The appellants are the defendants in O.S. 1243 of 2010 on the file of the I Additional Sub Court, Thrissur. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court.) 2. The plaintiffs filed this suit for specific performance of an agreement for sale executed by them along with the defendants 1 and 2 on 13.11.2009. As per the terms of the said agreement, the defendants agreed to sell a total extent of 1.126 cents of property and a building situated therein to the plaintiffs for a total consideration Rs.23,10,000/-. On the date of execution of the agreement (Ext.A1) itself a sum of Rs. 6,00,000/- was paid as advance to the defendants. As per the terms of Exhibit A1, the sale deed is to be executed on or before 12.07.2010. According to the plaintiffs, they were always ready and willing to perform their part of the contract and that the sale deed could not be executed due to the default of the defendants. On the other hand, the defendants would contend that they were always ready and willing to perform their part of the contract and that the contract could not be performed due to the default of the plaintiffs. It was in the above context that the plaintiffs filed this suit for specific performance. 3. The trial court framed four issues. The evidence in the case consists of the oral testimonies of PWs 1 and 2, DWs 1 and 2, Exhibits A1 to A22 series, B1 to B15, X1 and X2. After evaluating the evidence on record, the trial court decreed the suit and directed the defendants to execute a sale deed in respect of the plaint schedule property after receiving the balance sale consideration. Aggrieved by the above judgment and decree of the trial court, the defendants preferred this appeal. 4. Now the points that arise for consideration are the following: 1) Whether the plaintiffs were always ready and willing to perform their part of the contract, as claimed? 2) Whether the trial court has exercised the discretion under Section 20 of the Specific Relief Act, correctly? 3) Whether the impugned judgment and decree of the trial court calls for any interference, in the light of the grounds raised in the appeal? 5. 2) Whether the trial court has exercised the discretion under Section 20 of the Specific Relief Act, correctly? 3) Whether the impugned judgment and decree of the trial court calls for any interference, in the light of the grounds raised in the appeal? 5. Heard Sri T. Krishnanunni, the learned Senior Counsel appearing for the appellants and Sri.N.M.Madhu, the learned counsel for the plaintiffs. 6. The points: Execution of Exhibit A1 agreement dated 13.11.2009 is admitted by both sides. As per the terms of Exhibit A1 agreement, the defendants 1 and 2 agreed to sell the plaint schedule property consisting of a total extent of 1.126 cents of land and a building situated therein, to the plaintiffs for a total sale consideration of Rs. 23,10,000/-. On the date of execution of Ext.A1 agreement, a sum of Rs. 6,00,000/- was paid in advance. As per the terms of Exhibit A1, the sale dead was to be executed on or before 12.07.2010. However, the agreement could not be performed within the agreed period and with regard to the party who has committed breach, both sides have accused each other. While according to the plaintiffs, they were always ready and willing to perform their part of the contract, and it could not be materialized due to the default of the defendants, according to the defendants, it was due to the default of the plaintiffs that the contract would not be performed. The defendants also raised a contention that the plaintiffs were not having the required financial capacity to pay the balance consideration. 7. On 09.07.2010, the defendants issued Ext.A5 lawyer's notice to the plaintiffs demanding them to appear before the Sub Registar's Office concerned, with the balance sale consideration to get the sale deed executed. The said notice was received by the plaintiffs on 10.07.2010. On the very same day, the plaintiffs sent Exhibit A2 reply notice informing the defendants that they have not complied the pre-requisites for the performance of the contract as stipulated in the contract like handing over the documents required for the preparation of the sale deed, measurement of the property and convincing the area and boundaries of the property, showing the original title deed and convincing encumbrance-free status of the property etc. Therefore, in Exhibit A2 reply notice, they demanded the defendants to measure and convince the area and boundaries of the property and also to show the original title and encumbrance-free status of the property before executing the sale deed. The above notice was received by the defendants only on 15.07.2010, after the expiry of the period prescribed in Exhibit A1 namely, 12.07.2010. In the meantime, the defendants appeared before the Sub Registrar's Office concerned, on 12.07.2010 and stood themselves as witnesses in two documents, to show that the fault was on the part of the plaintiffs. According to the plaintiffs, the above conduct of the defendants in attending the Sub Registrar's office, without complying with the pre-requisites for the execution of the sale deed is only with the intention to create evidence against them. 8. As per the terms of Ext.A1, before the execution of the sale deed, the defendants had to convince the plaintiffs' encumbrance free title over the shareable property, show the original title deed, original land tax receipt, encumbrance certificate and also convince the extent and undisputed boundaries of the property, after measuring the said property. 9. In the written statement, the contention taken by the defendants is that they have complied the above terms in Exhibit A1, before 12.07.2010, the last date provided for execution of the sale deed. However, the above claim of the defendants was stoutly denied by the plaintiffs. According to them, none of the above conditions were complied by the defendants. In order to substantiate the above argument, the learned counsel for the plaintiffs relied upon the dates of the documents produced by the defendants. The defendants sent Exhibit A5 lawyer's notice to the plaintiffs on 09.07.2010. Exhibit B2 and B6 certificates were issued by the Tahsildar only on 09.07.2010. Along with Ext.A5, copies of those documents were not sent. Ext.B12 and B13 encumbrance certificates are dated 14.07.2010. Though the defendants claimed that the property was measured and the area of the property was convinced to the plaintiffs, they could not produce the sketch allegedly prepared at the time of measuring the property. 10. The 2 nd defendant was examined as DW1. At the time of evidence, she admitted that she had not given any documents to the plaintiffs. She claimed that the documents were given to the plaintiffs by her husband. 10. The 2 nd defendant was examined as DW1. At the time of evidence, she admitted that she had not given any documents to the plaintiffs. She claimed that the documents were given to the plaintiffs by her husband. But she further admitted that she had not seen her husband handing over any such documents to the plaintiffs. Though she claimed that the property was measured, she admitted that she was not present when the property was measured. She also admitted that nobody on behalf of the defendants were present when the property was measured. Though DW 2 was examined to prove the measurement of the property, he also could not state anything about the sketch prepared on measurement of the property. He also could not state the name of the surveyor who measured the property. He also deposed that at the time of measurement there was nobody representing the defendants. Therefore, the trial court was justified in disbelieving the evidence of DW2. Therefore, it is to be held that, in this case there is absolutely no reliable evidence to prove that the defendants have measured the plaint schedule property and convinced the area and boundaries of the property to the plaintiffs, as required under Ext.A1. 11. From the evidence of DW1 it is also revealed that she has not handed over any of the documents to the plaintiffs as stipulated in Exhibit A1, so as to prepare the sale deed. Though she claimed that those documents were handed over to the plaintiffs by her husband, she has not seen it. Her husband was also not examined as a witness to prove that crucial aspect. Therefore, the claim of the defendants that they have handed over the documents to the plaintiffs before 12.07.2010, could not be believed. It will further go to show that, the defendants sent Ext.A5 lawyer's notice to the plaintiffs on 09.07.2010 calling upon them to attend the SRO concerned, without complying with the above pre-requisites stipulated in Ext.A1. The above conduct of the defendants only substantiates the contention of the plaintiffs that there was no bona fides on the part of the defendants in sending Exhibit A5 notice and attending the sub registry on12.07.2010. 12. The above conduct of the defendants only substantiates the contention of the plaintiffs that there was no bona fides on the part of the defendants in sending Exhibit A5 notice and attending the sub registry on12.07.2010. 12. On the other hand, on the date of receipt of Exhibit A5 notice on10.07.2010 itself, the plaintiffs issued Exhibit A2 reply notice demanding the defendants to measure the property, to convince the area and boundaries of the property, to hand over the documents and to convince encumbrance free title of the property so as to prepare the sale deed. Even though the said notice was received by the defendants on 15.07.2010, they have refused to comply with the demand in Exhibit A2 notice, saying that the period stipulated in Exhibit A1 agreement has already expired. If there was any bona fides on the part of the defendants in sending Ext.A5 notice, they would have responded to Ext.A2 notice and complied with the demands made therein, to enable the execution of the sale deed. 13. The law is well settled that, generally, with respect to specific performance of immovable properties, time is not the essence of the contract. It is true that in Exhibit A1, in addition to the written pages, there is a printed sheet in which it is stated that time is the essence of the contract. However, as argued by the learned counsel for the plaintiffs, even as per the terms of Exhibit A1, before the execution of sale deed, the defendants had a duty to measure the properties, convince the area and boundaries of the property, show the original title deed, land tax receipt and also encumbrance certificate to the plaintiffs. As I have already noted above, the defendants have miserably failed in completing the pre-requisites stipulated in Exhibit A1, before calling upon the plaintiffs to perform their part of the agreement. In the facts of this case, as rightly noticed by the trial court, only if the defendants had measured the schedule property and convinced the area and boundaries of the property and encumbrance free title of the schedule property, the plaintiffs could have prepared the sale deed and get it registered after paying the balance sale consideration. In the facts of this case, as rightly noticed by the trial court, only if the defendants had measured the schedule property and convinced the area and boundaries of the property and encumbrance free title of the schedule property, the plaintiffs could have prepared the sale deed and get it registered after paying the balance sale consideration. Instead, as rightly found by the trial court, the defendants, without performing their part of the contract, sent Exhibit A5 notice, attended the Sub Registrar's office and thereafter returned home, without furnishing the documents and complying the pre-requisites so as to enable the plaintiffs to prepare the sale deed and to get the sale deal executed. Therefore, as rightly found by the trial court, in this case, breach of Exhibit A1 agreement was committed by the defendants themselves. 14. At the same time, from the evidence of PWs 1 and 2, it is revealed that the plaintiffs were always ready and willing to perform their part of the contract and that they are not responsible for the non-performance of Ext.A1 contract. Their conduct in sending Ext.A2 reply notice on the date of receipt of Ext.A5 also proves their bona fides. It is true that the defendants have raised a contention that the plaintiffs were not having sufficient funds to purchase the plaint schedule property during the relevant period. However, from the evidence of PWs1 and 2 and from Exhibit X2 bank statement, it is revealed that the plaintiffs were running a textile shop at the heart of Thrissur town and they were having an overdraft facility to the tune of Rs.3,00,00,000/- and out of which, they have availed a loan of only Rs.2.62 crores. Therefore, from the evidence adduced by the plaintiffs, it is revealed that they had sufficient resources to pay the balance sale consideration to the defendants, during the relevant period. Therefore, the trial court was justified in holding that the plaintiffs had sufficient financial capacity to pay the balance sale consideration. 15. According to the learned counsel for the plaintiffs, till the defendants perform their part of the contract, the plaintiffs could not perform their part of the contract and hence, they cannot be blamed for the breach. In order to substantiate the above argument, the learned counsel has relied upon certain decisions. 15. According to the learned counsel for the plaintiffs, till the defendants perform their part of the contract, the plaintiffs could not perform their part of the contract and hence, they cannot be blamed for the breach. In order to substantiate the above argument, the learned counsel has relied upon certain decisions. In the decision in Faizal Eroth and Another v. Venkalath Raveendran and another, 2013 (3) KHC 407 , there was a stipulation in the agreement to measure out the property and satisfy the appellants regarding the actual extent of the land available for sale. In the light of the evidence on record, this court found that the respondent failed to measure out the property and to convince the actual extent available for sale to the appellants. In the above circumstances, this court held that the obligation of the appellants to perform their part arises only when they are convinced of the actual extent of property available for sale. That means, where the performance of the intending buyer is conditional upon certain acts to be performed by the seller, the buyer needs perform his part only after those acts are performed by the seller. 16. In the decision in P. D'souza v. Shondrilo Naidu, (2004) 6 SCC 649 , there were reciprocal promises in a contract for sale of immovable property. In that case, from the evidence it is revealed that the defendant himself did not produce the original documents nor did he redeem the mortgage, as agreed. The Apex Court observed that if the mortgage was not redeemed and the original documents were not produced, the sale deed could not have been executed and in that view of the matter, the petitioner's readiness and willingness to perform her part of the contract would not arise. The reasoning was that readiness and willingness on the part of the plaintiff to perform his/her part of the contract would also depend upon whether the defendant did everything which was required of him to be done in terms of the agreement. 17. In the decision in Gadhipati Divija v. Pathuri Samrajyam , 2023 KHC 6404 also there was a stipulation in the agreement by which the vendor had to measure out the property and convince its extent to the purchaser, within a period of 3 months. 17. In the decision in Gadhipati Divija v. Pathuri Samrajyam , 2023 KHC 6404 also there was a stipulation in the agreement by which the vendor had to measure out the property and convince its extent to the purchaser, within a period of 3 months. In the above context, the Apex Court held that unless the vendor got the subject land measured and demarcated, within three months, it would be impossible for the purchaser to get a sale deed executed, and as such, the question of paying the balance sale consideration does not arise. In the above circumstances, the Apex Court further held that, when the specific performance of the terms of the contract has not been done, the question of time being the essence does not arise. 18. In the decision in Lakshmikantham R. v. Devaraji, (2019) 8 SCC 62 , there was a stipulation in the sale agreement that the seller had to obtain the title documents from the mortgagee after clearing the mortgage. In the above context, the Apex Court held that only after the seller redeems the mortgage and obtains the title deed, the question of payment of balance sale consideration arises. In the above circumstance, the Apex Court further held that the High Court went wrong in holding that time was of essence in the said agreement. 19. In the light of the above decisions, it can be seen that, in case there are reciprocal promises and one depends upon the performance of the other, unless the first party performs his part of the contract, the other party is not bound to perform his part. In the instant case, as per the terms of Ext.A1, the defendants were bound to measure out the property, convince the extent and undisputed boundaries of the property to the plaintiffs. Further, they had to convince the encumbrance-free title of the defendants and to show the original title deed and land tax receipts, in addition to the encumbrance certificate. In the instant case, the defendants have not complied with those conditions. Unless those conditions are complied by the defendants, the plaintiffs cannot be expected to pay the balance sale consideration and to take steps for executing the sale deed. 20. In the instant case, the defendants have not complied with those conditions. Unless those conditions are complied by the defendants, the plaintiffs cannot be expected to pay the balance sale consideration and to take steps for executing the sale deed. 20. The conduct of the defendants in issuing Exhibit A5 lawyer's notice, calling upon the plaintiffs to appear before the Sub Registrar's office for executing the sale deed, without performing those pre-requisites assumes much significance in this context. While issuing Exhibit A5, the defendants were aware of the fact that unless those stipulations in Ext.A1 agreement were complied with by them, the plaintiffs will not be in a position to get the sale deed executed after paying the balance sale consideration. Though on 10. 07.2010 itself the plaintiffs sent a reply demanding to hand over the documents and also to measure and convince the extent and encumbrance-free title over the property, instead of complying the said demand, they sent Ext.A6 notice denying specific performance, on the ground that the period stipulated in Exhibit A1 has already expired. Since in this case there are reciprocal promises and the promise to be performed by the defendants were to be performed before the plaintiffs could perform their part of the contract, the defendants were not at all justified in denying specific performance on the ground that time was the essence of the contract. In other words, it is to be held that, there was no breach of contract from the side of the plaintiffs and the breach of contract was committed by the defendants. 21. The learned Senior counsel has relied upon the decision of the Hon'ble Supreme Court in I.S. Sikandar (D) by LRs. v. K. Subramani and others, (2013) 15 SCC 27 and the decision in Kandasamy R. v. T.R.K. Saraswathi , 2024 KHC 6644 in support of his argument that once sale agreement is terminated, a suit for specific performance without a prayer for declaration is not maintainable. However, as I have already noted above, in Exhibit A6 notice, it is not stated that the defendants terminated Exhibit A1 sale agreement and as such the above decisions are not applicable to the facts of the present case. 22. The learned Senior counsel has further argued that in this case the consideration fixed was for the entire property and hence measurement of property has no relevance. 22. The learned Senior counsel has further argued that in this case the consideration fixed was for the entire property and hence measurement of property has no relevance. Even then, the measurements are to be incorporated in the sale deed, for which the measurements are required. 23. In this context, it is also to be noted that, even at the time of evidence, the defendants have not produced their original title deed. Though during the cross examination of DW 1, a suggestion was put to the effect that the original title deed was encumbered and that is why it was not produced, the defendants have not produced the original title deed before the court. The above conduct of the defendants in not producing their original title deed, in spite of the fact that the plaintiffs have taken a contention that they have encumbered the plaint schedule property, speaks volumes. The contention taken by the defendants in Exhibit A6 notice that they have appeared before the SRO on 12.07.2010 with all the original documents including the title deed, assumes significance in the above context. 24. It is true that, even if it is found that the breach of contract was committed by the defendants, this court is not bound to grant decree for specific performances and it is only a discretionary relief to be exercised by the court on sound and reasonable grounds. Section 20 of the Specific Relief Act, 1963 dealing with the discretion to be exercised while deciding whether, in a particular case, specific performance is to be granted, is extracted below for reference: “20. Discretion as to decreeing specific performance.— (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. Discretion as to decreeing specific performance.— (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance:— (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation 1.—Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation 2.—The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. (3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party. “ 25. In the instant case, admittedly the plaintiffs are conducting a textile shop at the heart of Thrissur town. The property they proposed to purchase as per Exhibit A1 was a shop room near to their existing shop. Out of the total sale consideration of Rs.23.1 lakhs, they have advanced a sum of Rs. “ 25. In the instant case, admittedly the plaintiffs are conducting a textile shop at the heart of Thrissur town. The property they proposed to purchase as per Exhibit A1 was a shop room near to their existing shop. Out of the total sale consideration of Rs.23.1 lakhs, they have advanced a sum of Rs. 6,00,000/- to the defendants on the date of execution of Exhibit A1 itself. At the time of arguments, it is revealed that the plaintiffs have deposited the entire balance sale consideration before the trial court, within a period of one month from the date of the decree.From the evidence on record, it is revealed that all along the plaintiffs were ready and willing to perform their part of the contract and that it could not be performed only due to the default of the defendants. At the same time, the defendants sent Exhibit A5 lawyer's notice offering to execute the sale deed in favour of the plaintiffs, but evaded execution of the sale deed by not complying with the pre- requisites to be performed before the execution of the sale deed. In spite of receipt of Ext.A2 reply notice dated 10.07.2010, on 15.07.2010, immediately after the period prescribed for specific performance, they refused to hand over the necessary documents and to measure and convince the extent of property and evaded execution of the contract, without offering any plausible explanation. 26. In the above circumstances, even if the prayer for specific performance is granted, the same will not give the plaintiffs an unfair advantage over the defendants. At the same time, since the plaintiffs have already paid a sum of Rs.6,00,000/- on the date of execution of Exhibit A1 and thereafter deposited the entire balance sale consideration within one month from the date of decree, the plaintiffs have done substantial acts in consequence of the contract. If specific performance is denied at this stage, the same will be inequitable to the plaintiffs and there will be irreparable loss, injury and hardships to them. Therefore, there is nothing wrong in the discretion exercised by the trial court in favour of the plaintiffs. I do not find any irregularity or illegality in the impugned judgment and decree of the trial court so as to call for any interference. Points answered accordingly. In the result, this appeal stands dismissed. Considering the facts, I order no costs.