Sathish Ninan, J
1. The plaintiffs in a suit for specific performance of an agreement for sale, dissatisfied with the decree granted for return of the advance sale consideration paid with interest, has filed this appeal.
2. Ext.A1 agreement dated 05.05.1994 was entered into between the plaintiff and the first defendant for sale of the plaint schedule property for an amount of 2,16,300/-. The sale deed was to be executed within a period of three months from the date of the agreement. An amount of 5,001/- was paid towards advance sale consideration. Alleging non-performance of the contract by the defendant the suit is filed. The defendant contended that the breach of the contract was committed by the plaintiff and that the A.S No.96/2001 2 plaintiff was not ready and willing to perform his part of the contract.
3. Heard the learned counsel for the appellant/plaintiff and the respondent/defendant.
4. Ext.A1 agreement provides for three months period for performance of the contract. It further provides that in case of failure on the part of the defendant to execute the sale deed within the time specified, the plaintiff has to file suit claiming specific performance within 15 days thereof. The inclusion of such a clause in the agreement for sale points to the fact that the parties gave importance to the period/time for performance of the contract. Ext.A2 letter though claimed to have been sent by the plaintiff to the first defendant claiming performance of the contract, there is no evidence to show that such a notice was in fact sent. Its receipt is denied by the defendant. The postal receipt nor the postal acknowledgment are produced. Ext.A4 lawyer notice is dated 30.12.1994. Evidently, the demand made for A.S No.96/2001 3 performance of the contract is beyond the period of three months stipulated in the agreement. There is no material available to indicate that within the period stipulated in the agreement the plaintiff had taken any steps to get the sale deed executed. Here, it would be relevant to note that there is no specific pleading in the plaint that since the date of Ext.A1 the plaintiff was and has always been ready and willing to perform his part of the contract. Section 16(c) of the Specific Relief Act mandates that the plaintiff has to aver and prove that he has always been ready and willing to perform the contract. Apart from lack of pleading, there is lack of material to prove the continuous readiness and willingness on the part of the plaintiff since the date of the agreement. The evidence of PW2 and PW3 did not inspired confidence in the court below in view of the inherent improbabilities of their version. Their evidence is found to be unreliable and at any rate not sufficient enough to prove the readiness and A.S No.96/2001 4 willingness of the plaintiff to secure a decree for specific performance.
5. Considering the totality of the circumstances involved in the case, the court below exercised its jurisdiction under Section 20 of the Specific Relief Act by exercising its discretion to deny the relief of specific performance and granted a decree for return of the advance amount with interest. We do not find any reason to differ from the conclusion arrived at by the court below.
Accordingly, the appeal stands dismissed. No costs.
Sd/-
V.Chitambaresh, Judge Sd/-