JUDGMENT & ORDER : MALASRI NANDI, J. Heard Mr. G. Bharadwaj, learned counsel for the appellant. Also heard Mr. M.U. Mahmud, learned counsel for the respondents. 2. This appeal is directed against the judgment and decree passed by the learned Civil Judge, Bongaigaon in T.S No.01/2016 dated 01.12.2018. 3. The predecessor in interest of the respondents brought a suit being T.S No.01/2016 in the Court of Civil Judge, Bongaigaon, for specific performance of contract and in the alternative refund of advance amount. The appellant/defendant contested the suit denying various allegations made therein and further stated that no agreement for sale was executed. The learned trial court decreed the suit in favour of the plaintiff/respondent. Hence, this appeal preferred by the appellant/defendant. 4. The appellant/defendant is the owner and absolute possessor of a plot of land measuring 6 Bighas 7 Lechas covered by Dag No.590 of periodic patta no.280 (Old), 433 (new) and the land-in-question is situated at Village- Kharija Dolaigaon Part I under Bongaigaon Revenue Circle in the district of Bongaigaon, Assam. The appellant/defendant due to his financial crunch, desires to sell a portion of aforesaid plot of land measuring 2 Bighas out of total plot of land 6 Bighas 7 Lechas. 5. On the other hand, the respondent/plaintiff was also in search of a suitable plot of land to purchase and upon negotiation between the parties, the appellant/defendant has agreed to sell a portion of land measuring 2 Bighas to the respondent/plaintiff at a total consideration of 34,50,000/- (Rupees thirty four lakhs fifty thousand) only at the rate of 17,25,000/- (Rupees seventeen lakhs twenty-five thousand) only per bigha. 6. The appellant/defendant has received a sum of Rs.4,50,000/- (Rupees four lakhs fifty thousand) only from the respondent/plaintiff out of total 34,50,000/- (Rupees thirty four lakhs fifty thousand) only and executed an agreement for sale as well as money receipt on the same day between the parties. It was agreed that the balance consideration money i.e. Rs.30,00,00/- (Rupees thirty lakhs only) shall have to be paid to the appellant/defendant by the respondent/plaintiff at the time of registration of the sale deed. 7. It was agreed that the balance consideration money i.e. Rs.30,00,00/- (Rupees thirty lakhs only) shall have to be paid to the appellant/defendant by the respondent/plaintiff at the time of registration of the sale deed. 7. It was further agreed that the appellant/defendant has executed the registered sale deed in favour of the respondent/plaintiff within 3 (three) months from the date of execution of the agreement for sale and necessary land sale permission and NOC for land sale shall be obtained by the respondent/plaintiff from the competent authority upon his own expenditure. 8. However, after the lapse of 9 (nine) months, the appellant/defendant did not come forward to sell the alleged land to the respondent/plaintiff and he even did not provide the necessary documents like land holding certificate, revenue payment receipt, voter card etc. to the respondent/plaintiff to enable him to apply for land sale permission and NOC from the competent authority in spite of several request to supply the same. 9. Under such compelling circumstance, finding no other alternative, the respondent/plaintiff sent a legal notice to the appellant/defendant and again requested the appellant/defendant to register the said land in favour of the respondent/plaintiff but the defendant/appellant did not show his intention to sell his plot of land to the respondent/plaintiff. Subsequently, the respondent/plaintiff came to know from a reliable source that the appellant/defendant tried to sell the said land with higher price violating the terms and conditions of agreement for sale executed between the parties. 10. Learned counsel for the appellant/defendant has argued that the learned trial court erred in law in decreeing the suit in favour of the respondent/plaintiff as the learned trial court misinterpreted the evidence-on-record as well as misconstrued the exhibited documents. It is also submitted that the learned trial court ought to dismiss the suit of the respondent/plaintiff as the respondent/plaintiff has failed to prove readiness and willingness to perform the contract. 11. The further submission learned counsel for the appellant/defendant is that learned trial court is failed to understand the burden of proof as specified in Evidence Act. The suit ought to have been dismissed as the predecessor of the respondents failed to get the sale deed registered within 3 (three) months from the date of the execution of the contract. Hence, the suit is liable to be dismissed as time being the essence of contract. The suit ought to have been dismissed as the predecessor of the respondents failed to get the sale deed registered within 3 (three) months from the date of the execution of the contract. Hence, the suit is liable to be dismissed as time being the essence of contract. In support of his submission, the learned counsel has relied on the following case laws - 1) (2022) Live Law (SC) 712 (Smt. Katta Sujatha Reddy and Anr. Vs. Siddamsetty Infra Projects Pvt. Ltd. and others) 2) (2024) Live Law (SC) 407 (Rajesh Kumar Vs. Anant Kumar and others) 12. Per contra, learned counsel for the respondent/plaintiff has contended that the main thrust of the respondent/plaintiff in the suit was that the appellant/defendant to execute the sale deed in favour of the respondent/plaintiff on receipt of the balance consideration and to hand over the possession of the said land. Hence, the respondent/plaintiff filed a suit for enforcing his right for specific performance of the contract which he had entered into with the appellant/defendant to purchase the said land. 13. It is also submitted that the respondent/plaintiff is still ready and willing to perform his part of the obligation under the deal and as per the terms and conditions agreed upon between the parties. Since the appellant/defendant was not coming forward to execute the sale deed on the receipt of the balance consideration as such the trial court has rightly passed judgment and order decreeing the suit in favour of the respondent/plaintiff. 14. Under such backdrop, there is no ground to interfere with the judgment of the trial court and the learned counsel for the respondent/plaintiff has prayed for dismissal of the appeal. 15. On perusal of the trial court records, it reveals that the trial court framed 7 (seven) nos. of issues wherein issue no.2 and 3 are important which are as follows – Issue No.2 - Whether the defendant entered into an agreement for sale of the suit land with the plaintiff at a consideration of Rs.34,50,000/-(Rupees thirty four lakhs fifty thousand) only on 24.03.2015 and pursuant to the said agreement, the defendant received a sum of Rs.4,50,000/-(Rupees four lakh fifty thousand) only from the plaintiff on 24.03.2015 as advance towards the total consideration amount fixed. Issue No.3 - Whether the plaintiff is ready and willing to perform his part of the alleged contract. 16. Issue No.3 - Whether the plaintiff is ready and willing to perform his part of the alleged contract. 16. It is pertinent to say here that the original plaintiff Ratan Lal Saha died during the pendency of the suit before the trial court. Subsequently, his legal heirs were substituted in T.S No.01/2016. 17. Before further proceed with the case, it is apt to discuss about the evidence of the witnesses recorded by the trial court. 18. PW-1, the original plaintiff has reiterated the same thing whatever he stated in his plaint that on negotiation between the parties i.e. the plaintiff and the defendant, the appellant/defendant has agreed to sell a portion of his land measuring 2 Bigha to the respondent/plaintiff at a total consideration of Rs.34,50,000/- (Rupees thirty four lakhs fifty thousand) only. Accordingly, the respondent/plaintiff paid a sum Rs.4,50,000/- (Rupees four lakhs fifty thousand) only to the appellant/defendant on 24.03.2015 out of total amount of 34,50,000/- (Rupees thirty four lakhs fifty thousand) only and accordingly executed an agreement for sale as well as money receipt on the same day vide Ext.1 and Ext.2 respectively. Thereafter, the appellant/defendant did not hand over the possession of the said land in spite of repeated request by the respondent/plaintiff to the appellant/defendant to execute the sale deed on receipt of balance consideration. As the appellant/defendant failed to do so, the respondent/plaintiff was compelled to file the title suit being no. T.S 01/2016. 19. In his cross-examination, PW-1 replied that he verbally requested the appellant/defendant to hand over the relevant documents to apply for sale permission but he did not issue any notice to the appellant/defendant to hand over such documents. But the appellant/defendant did not respond to such verbal request as such he failed to collect the sale permission for the schedule plot of land. It was suggested that the appellant/defendant put his signature in a blank paper to prepare a mortgage deed but the respondent/plaintiff converted the said document for agreement for sale. 20. PW-2 deposed in his evidence that the agreement for sale was prepared in his house between the respondent/plaintiff and the appellant/defendant. The respondent/plaintiff paid Rs.4,50,000/- (Rupees four lakhs fifty thousand) only to the appellant/defendant in his presence but he did not put his signature in Ext.1 , though he was present at the relevant time. 21. PW-3 is the witness to the agreement for sale. The respondent/plaintiff paid Rs.4,50,000/- (Rupees four lakhs fifty thousand) only to the appellant/defendant in his presence but he did not put his signature in Ext.1 , though he was present at the relevant time. 21. PW-3 is the witness to the agreement for sale. According to him, an agreement for sale was executed between the respondent/plaintiff and the appellant/defendant to purchase a plot of land measuring 2 Bigha by the respondent/plaintiff from the appellant/defendant with a consideration of Rs.17,25,000/- (Rupees seventeen lakhs twenty five thousand) only per bigha. Accordingly on 24.03.2015, an agreement for sale was executed between them vide Ext.1 wherein he put his signature as witness. On the same day, the respondent/plaintiff paid Rs.4,50,000 (Rupees four lakhs fifty thousand) only to the appellant/defendant vide money receipt Ext.2 wherein he put his signature vide Ext.2(2). 22. PW-4 has also deposed in his evidence that he knew both the respondent/plaintiff and the appellant/defendant. The defendant agreed to sell a plot of land measuring 2 Bighas to the plaintiff. On 24.03.2015, an agreement for sale was executed between the parties wherein the amount of consideration was fixed at Rs.17,25,000/- (Rupees seventeen lakhs twenty five thousand) only per bigha. In pursuant to the said agreement, the plaintiff paid Rs.4,50,000/- (Rupees four lakhs fifty thousand) only to the appellant/defendant as advance in his presence. He put his signature in Ext.1 wherein Ext.1(8) is his signature.In Ext.2 money receipt wherein he also put his signature vide Ext.2(3). 23. The defendant/appellant was examined himself as DW-1 before the trial court. In his deposition in one hand he stated that the alleged agreement for sale dated 24.03.2015 was not a registered deed as per provisions of Registration Act, 1908 and as such the alleged agreement for sale has no legal value in the eye of law. It is further submitted that he is the owner and absolute possessor of a total plot of land measuring 6 Bighas 7 Lechas covered by Dag No.590 of periodic patta no.280 (Old), 433 (new) and the land-in-question is situated at Village- Kharija Dolaigaon Part I under Bongaigaon Revenue Circle in the district of Bongaigaon, Assam and he never desired to sell the said plot of land for his financial hardship. 24. 24. It is further submitted that he approached the respondent/plaintiff for financial help of an amount of Rs.4,50,000/- (Rupees four lakhs fifty thousand) only and the plaintiff was agreed to extend the said amount by keeping his plot of land mortgaged which is the suit land. He received the amount of Rs.4,50,000/- (Rupees four lakhs fifty thousand) only on 24.03.2015 and afterwards the respondent/plaintiff has received back Rs.30,000/- (Rupees thirty thousand) only as interest from him. He told the respondent/plaintiff to refund the said amount within 8/9 months to release the said mortgage property i.e.the suit land. 25. It was further alleged that the respondent/plaintiff had requested the defendant to sign some blank papers required for the purpose of preparing the mortgage deed. So, due to paucity of time and urgency of money as well as on good faith, the appellant/defendant signed some blank papers only to prepare the mortgage deed in respect of the suit land and the respondent/plaintiff gave assurance that after preparing the mortgage deed, he would provide the photocopy of the same to him but the respondent/plaintiff did not provide the said copy of the mortgage deed rather the respondent/plaintiff converted the said blank signed papers to agreement for sale and money receipt to grab the suit land in illegal manner. 26. Though DW-1 alleged that the respondent/plaintiff converted some blank signed papers to agreement for sale but in his cross-examination DW-1 admitted his signature in Ext.1 vide Ext.1(1) , Ext.1(2) and Ext.1(3) . DW-1 also admitted that Dhaneswar Saharia, Dinabandhu Roy and Moti Lal Roy put their signatures on 24.03.2015 in his presence. DW-1 further admitted that in Ext.2 money receipt, he put his signature over the revenue stamp on receipt of Rs.4,50,000/- (Rupees four lakhs fifty thousand) only. The DW-1 in his cross-examination finally admitted that the respondent/plaintiff did not pay Rs.4,50,000/- (Rupees four lakhs fifty thousand) only to him as loan but he took the said money for consideration to sell a plot of land to the respondent/plaintiff. 27. Apparently, there is no dispute that the agreement for sale bears the signatures of the plaintiff/respondent as well as the defendant/appellant. So far as therefore execution is concerned, it is not denied that the agreement to sale was indeed executed. 27. Apparently, there is no dispute that the agreement for sale bears the signatures of the plaintiff/respondent as well as the defendant/appellant. So far as therefore execution is concerned, it is not denied that the agreement to sale was indeed executed. It is categorically stated in Ext.1 agreement for sale that the responsibility for taking the necessary clearances and permission for sale from all the authorities would be upon the plaintiff in the suit. As per terms and conditions of Ext.1 vide para 4, the NOC and land sale permission of the said plot of land from the concerned authority shall be obtained by the second party i.e. the plaintiff/respondent at his own expenses and as per para 5, the first party i.e. appellant/defendant shall execute the registered sale deed in favour of the second party within 3 (three) months from the date of execution of the agreement for sale dated 24.03.2015. 28. The discussion on these issues will also encompass the issue as to whether it is the defendant who is guilty of breach of contract or the respondent/plaintiff is to be held to be guilty of breach of contract being the agreement for sale dated 24.03.2015. Since there is no separate issue which was framed by the parties as to who was guilty of breach of contract, it is therefore taken up at this juncture as to who was guilty of breach of contract. Now the question comes whether plaintiff had always been ready and willing to perform his part for agreement to sale to pay the balance consideration to the appellant/defendant. 29. It appears from the plaint as well as the evidence of the respondent/plaintiff that after lapse of 9 (nine) months as the appellant/defendant did not come forward to sale the schedule plot of land to the respondent/plaintiff and he even did not provide the necessary documents like land holding certificate, revenue payment receipt, voter card etc. to the respondent/plaintiff to apply for land sale permission and NOC from the competent authorities in spite of several request to supply the same to the respondent/plaintiff. 30. It also appears that between the said period, the respondent/plaintiff also requested the appellant/defendant to register the suit land in favour of the respondent/plaintiff on receipt of the balance consideration but the defendant did not pay any heed to his request. 30. It also appears that between the said period, the respondent/plaintiff also requested the appellant/defendant to register the suit land in favour of the respondent/plaintiff on receipt of the balance consideration but the defendant did not pay any heed to his request. So finding no alternative the respondent/plaintiff sent a legal notice vide Ext.3 to the appellant/defendant through his counsel on 08.12.2015 requesting the appellant/defendant to register the said land in favour of the respondent/plaintiff but the appellant/defendant did not show his intention to sale the plot of land to the plaintiff. The appellant/defendant also admitted the fact that he received the legal notice dated 08.12.2015 from the respondent/plaintiff. But the respondent/plaintiff did not wait for the period of 1 (one) month and before elapsing the period filed the instant suit. As such, the appellant/defendant is not bound to the terms and conditions mentioned in the alleged agreement dated 24.03.2015. 31. As per Ext.3 - legal notice dated 08.12.2015, 1 (one) month was granted to the appellant/defendant to get the said land registered in favour of the respondent/plaintiff. Though the appellant/defendant stated in his evidence that he received the legal notice dated 08.12.2015 but he is totally silent when he received the said notice. 32. As the defendant admitted that he received the notice dated 08.12.2015 and admission of his signature in Ext.1 and Ext.2 , apparently, the appellant/defendant has to be held guilty of breach of contract as he failed to get the land registered in favour of the respondent/plaintiff within the stipulated time as per Ext.1 33. The next issue which arises is that even if the appellant/defendant has to be held guilty of the breach of contract being the agreement for sale dated 24.03.2015, now the question comes whether the plaintiff has proved that he always was ready and willing to perform his part of the agreement for sale which is required by Section 16 (c) of the Specific Relief Act, 1963. 34. Let us now examine as to whether plaintiff has led evidence and proved in this suit that the plaintiff has always been and continues to be ready and willing to perform his part of the contract. 35. 34. Let us now examine as to whether plaintiff has led evidence and proved in this suit that the plaintiff has always been and continues to be ready and willing to perform his part of the contract. 35. In my opinion, the expression "has always been and continued to be ready and willing to perform the contract" includes that plaintiff must show that he always had the financial capacity to perform his part of the contract for making payment of balance sale consideration amounting to Rs.30,00,00/- (Rupees thirty lakhs) only. No doubt financial capacity which is to be proved under the term readiness and willingness is not that the plaintiff has to show that he had with him liquid moneys, but however it is equally necessary for the plaintiff to show his financial capacity, and having much assets, for being able to pay the balance sale consideration. 36. When we examine the facts of the present case, it is found that the plaintiff in order to prove readiness and willingness has relied upon the evidence of the witnesses vide PW-2, PW-3 and PW- 4. According to the plaintiff/respondent, he several times approached to the appellant/defendant to furnish the necessary documents to obtain sale permission, NOC etc from the concerned authorities. PW-2, PW-3 and PW-4 categorically stated that they accompanied the petitioner to the house of the appellant/defendant for collection of such documents but the appellant did not provide such relevant documents to the plaintiff/respondent for which he was unable to collect the sale permission, NOC etc. However, the plaintiff/respondent did not produce any documents like bank accounts, share certificate or such other items to prove that he has financially ability, having much assets for being able to pay the balance sale consideration. 37. I am not agree with the argument urged on behalf of the plaintiff/respondent that plaintiff/respondent had proved its readiness and willingness as required by Section 16(c) of the Specific Relief Act. As already observed above, readiness and willingness has to be a continuous act from the date of entering into the agreement to sell till at least leading of evidence by the plaintiff in the suit, if not even as on date at the stage of final arguments. As already observed above, readiness and willingness has to be a continuous act from the date of entering into the agreement to sell till at least leading of evidence by the plaintiff in the suit, if not even as on date at the stage of final arguments. In this regard, it is seen that the plaintiff/respondent did not produce any document showing his financial capability and which documents are in the special knowledge of the plaintiff and therefore required to be proved by the plaintiff in terms of Section 106 of the Indian Evidence Act. These documents in possession of the plaintiff with respect to its financial capacity would be the documents of the bank accounts of the plaintiff, any fixed deposit receipts, audited Balance Sheets and Profit and Loss accounts of the plaintiff etc. since the date of execution of the agreement for sale dated 24.03.2015. 38. Section 16(c) of the Specific Relief Act deliberately requires continuous readiness and willingness i.e. continuous financial ability to complete the transactions. The stage of complying with obligations under the agreement to sell by a proposed buyer even if does not arise, yet Section 16(c) of the Specific Relief Act requires the plaintiff to show continuous financial capacity to pay the balance sale consideration. In my opinion, in the instant case, the plaintiff/respondent in this regard has miserably failed because merely by saying financial capacity to pay the balance consideration does not mean that the plaintiff/respondent had financial capacity. As already stated above, the plaintiff/respondent did not produce any document regarding his financial capacity like Bank accounts or cash certificates etc. and therefore, against the plaintiff/respondent, adverse inference can be drawn under Section 114 of the Indian Evidence Act that the plaintiff/respondent deliberately had not filed such documents. It is, therefore, held that the plaintiff/respondent has failed to comply with Section 16 (c) of the Specific Relief Act. 39. In the case of Baldev Behl & Ors. Vs. Bhule & Ors. (2012) 132 DRJ 247 , it was held as under – "26(i). This issue pertains to plaintiff No.1 being ready and willing to perform his part of the agreement to sell. As per Section 16(c) of the Act, every plaintiff in a suit for specific performance must aver and prove that the plaintiff has always been and continues to be ready and willing to perform his part of the contract/agreement to sell. This issue pertains to plaintiff No.1 being ready and willing to perform his part of the agreement to sell. As per Section 16(c) of the Act, every plaintiff in a suit for specific performance must aver and prove that the plaintiff has always been and continues to be ready and willing to perform his part of the contract/agreement to sell. Readiness is financial capacity to go ahead with the agreement to sell and willingness is the intention. I may, at this stage, specifically invite attention to the observations of the Supreme Court in the case of Balraj Taneja and Anr. (supra), and relevant paras have been reproduced above, and which show that in a suit for specific performance even if there is no defence of the defendant, yet, the aspect of readiness and willingness has to be specifically proved by the plaintiff. This is stated by the Supreme Court in para 30 of the said judgment. The question is whether the plaintiff No.1 has proved his readiness and willingness at the relevant time and also continues to be ready and willing to perform his part of the contract/agreement to sell. (ii) Readiness to perform the obligations by a proposed purchaser is a very important aspect and it has to be proved by categorical evidence. Mere oral evidence and self-serving depositions cannot be a substitute for categorical evidence on the specific statutory requirement of Section 16(c). It is not disputed on behalf of the plaintiff No.1 that plaintiff No.1 has not filed any income tax returns or any bank account or proof of any other assets/properties or any other evidence to show the financial capacity of the plaintiff No.1 to pay the balance sale consideration. As per the case of the plaintiff No.1, the balance sale consideration would be approximately 19.5 lacs and there is no evidence worth the name in the record to show the plaintiff No.1’s financial capacity for this amount. Of course, while on this argument, I am assuming that there is a certainty as to consideration because in reality there is no certainty as to balance sale consideration in as much as the plaintiff No.1 has failed to exercise the option in terms of the agreement to sell as to which area of the balance land less the hutment/portion the plaintiff No.1 seeks specific performance of. Also, as already stated above, this area claimed by the plaintiff No.1 has to be further conditioned by an area of 12 bighas which has already been sold to the defendant No.3 under the sale deed dated 8.4.1988. In any case, I need not state anything further in as much as there is not a single piece of paper on record or any credible evidence which proves the financial capacity of the plaintiff No.1. I accordingly hold that plaintiff No.1 has miserably failed to prove his readiness to perform his obligations under the agreement to sell dated 27.8.1988. In fact, even willingness on the part of the plaintiff No.1 is absent in as much as there is no certainty of any option exercised by the plaintiff No.1 as to specific area which the plaintiff No.1 seeks to purchase, and which specific area had necessarily to be clear in as much as there is the issue of lessening the area whether on account of hutments or on account of 12 bighas of land already purchased by the defendant No.3 vide sale deed dated 8.4.1988 and hence of clarity as to for what area and for what price the agreement to sell has to go ahead." 40. Reverting to the case in hand, admittedly the plaintiff has not produced any documents showing his financial capability to prove his readiness and willingness to pay the balance consideration. It is, therefore, held that plaintiff has failed to show that he had always been and continued to be always ready and willing to perform his part of agreement to sell by having the necessary financial capacity to pay the balance sale consideration amounting to Rs.30,00,00/- (Rupees thirty lakhs) only. 41. Now the question comes whether the plaintiff/respondent is entitled to refund of any amount from the defendant/appellant ! 42. As already discussed above, the defendant/appellant received an amount of Rs.4,50,000/-(Rupees four lakhs fifty thousand) only under the agreement for sale out of final consideration amounting to Rs.34,50,000/-(Rupees thirty four lakhs fifty thousand) only. 43. As per terms and conditions of the agreement for sale, the defendant/appellant shall execute the registered sale deed in favour of the plaintiff/respondent within 3 (three) months from the date of execution of the agreement for sale dated 24.03.2015. But the defendant/appellant has failed to do so in spite of repeated requests from the side of the plaintiff. 43. As per terms and conditions of the agreement for sale, the defendant/appellant shall execute the registered sale deed in favour of the plaintiff/respondent within 3 (three) months from the date of execution of the agreement for sale dated 24.03.2015. But the defendant/appellant has failed to do so in spite of repeated requests from the side of the plaintiff. The defendant/appellant since is held guilty of breach of contract and even if it was plaintiff who was held guilty of breach of contract but since defendant/appellant has not proved any loss caused to him on account of any alleged breach of contract by the plaintiff. 44. In view of the ratio of the judgment of Hon’ble Supreme Court in the case of Fateh Chand Vs. Balkishan Das, AIR 1963 SC 1405 , it is held that plaintiff/respondent is entitled to refund of Rs.4,50,000/-(Rupees four lakhs fifty thousand) only from the defendant/appellant. Accordingly, the suit will stand decreed for the monetary amount of Rs.4,50,000/-(Rupees four lakhs fifty thousand) only in favour of the plaintiff/respondent and against the defendant/appellant. 45. In view of the aforesaid discussion, the suit of the plaintiff seeking specific performance as against the defendant is dismissed and the appeal is allowed. However, in favour of the plaintiff, a money decree is passed for a sum of Rs.4,50,000/-(Rupees four lakhs fifty thousand) only against the defendant/appellant. 46. Parties are left to bear their own cost. Decree be prepared accordingly. 47. Appeal is disposed of accordingly. 48. Transmit the trial court records.