B. Sundarambal and Others vs Jawaharlal Jain

M. Thanikachalam, J.—In a suit for specific performance, the defendant who succeeded in her defence before the trial Court, failed to

sustain the said decree, when questioned on appeal and the result is this second appeal.

The defendant/appellant is the owner of the suit property. According to the plaintiff, the defendant entered into an agreement of sale, with the

plaintiff on 19.1.1984, agreeing to sell the suit property, for a sale consideration of Rs. 11,000/- and received a sum of Rs. 5,000/- as advance,

further agreeing to receive the balance, at the time of registration of the sale deed. The sale agreement was registered. Thereafter, the defendant

had also executed a general power of attorney in favour of the plaintiff on 19.7.1985, which was also registered, where the defendant had

acknowledged the sale agreement, conferring power upon the plaintiff to deal with the suit property. In pursuance of the agreement, the defendant

had also handed over the original title deed for the suit property.

The plaintiff is ready and willing to complete the sale, whereas the defendant alone failed to do so. On the other hand, she had issued a legal

notice containing false allegations, for which a suitable reply was given. The sale agreement is enforceable and under which the defendant is bound

to execute the sale deed, receiving the balance of sale consideration. Since the defendant has failed to perform her duty, in terms of the sale

agreement, the plaintiff was constrained to file the suit, for specific performance, as per the sale agreement dated 19.1.84.

The appellant/defendant opposed the suit for specific performance, alleging that the document dated 19.1.1984 is not an agreement for sale,

whereas it was executed as mortgage deed, when the defendant approached the plaintiff for a loan of Rs. 11,000/-. It is the further case of the

defendant that she being an illiterate and ignorant woman, had only affixed her thumb impression, believing that it was only a mortgage deed and

therefore, as such the document could not be enforced as an agreement for sale, which could be seen from the fact that the document does not

contemplate any time, for specific performance. The appellant/defendant further contended that the plaintiff had defrauded her, taking advantage of

her illiteracy and ignorance and the same was known after the discharge of the mortgage, when the original title deed was demanded and therefore,

a notice was issued, which amply proves that the document is not an agreement for sale. It is the further contention of the defendant, that the entire

mortgage amount was discharged by paying principal as well as interest. The fact that the transaction is only a mortgage could be seen from the

chits issued by the plaintiff. The market value of the property was more than Rs. 75,000/- and therefore, this defendant would not have agreed to

sell the property, for a paltry sum of Rs. 11,000/- as pleaded by the plaintiff. On the above grounds, inter alia, the defendant prayed for the

dismissal of the suit.

The learned XIV Assistant Judge, City Civil Court, framing five issues, took the case for trial. During the trial, the plaintiff has been examined as

P.W.1 and to contradict his evidence, the defendant has been examined as D.W.1. On behalf of the plaintiff, five documents were exhibited and on

behalf of the defendant/appellant, two documents were exhibited.

The learned Assistant Judge evaluating the above materials, came to the conclusion that Ex.A3 sale agreement was taken by the plaintiff, when

the defendant was in a distressed position, in view of the ill health of his son, as if it is a mortgage deed. The learned trial Judge has further

concluded, that the plaintiff obtained Ex.A3, using his influence and taking advantage of the fact that the defendant is an illiterate and ignorant lady.

It is the further finding of the trial Court that the defendant had signed in Ex.A3 under the faith and belief that she was affixing her thumb impression

only in a mortgage deed and not in the sale agreement. At the same time, the trial Court has come to the conclusion, that the plea of discharge of

the debt is incorrect, disbelieving Exs.B1 and B2 also, which were produced as if issued by the plaintiff, evidencing this transaction as loan

transaction. Though the trial Court had disbelieved the plea of discharge, but accepted the case of the defendant otherwise, as if she has paid the

interest and if at all, she has to pay only the principal amount.

On the above conclusion, the trial Judge dismissed the suit, for specific performance and granted a decree, as if it is rendered on the basis of

natural justice and equity that the plaintiff is entitled to only a sum of Rs. 5,000/-, which he had advanced under Ex.A3, further directing to return

the original title deed, viz., Ex.A5. The plaintiff aggrieved by the decree and judgment of the trial Court, impugned the same before the Principal

Judge, City Civil Court in A.S.No.185/92.

The learned Principal Judge, City Civil Court, while assessing the materials on record, came to the conclusion, that the trial Judge had erred in

dismissing the suit against the evidence, as well as against probabilities. It is the finding of the first appellate Court that Ex.A3 is an agreement for

sale, which could be enforced in a Court of law. Further, the first appellate Court has come to the conclusion, that the plaintiff is entitled to a

decree for specific performance, probably since he was always ready and willing to perform his part of the contract, whereas the

defendant/appellant alone had disputed the agreement, thereby failing in her duty to perform her part of the contract. In this view of the matter, the

first appellate Court reversed the finding of the trial Court and granted a decree for specific performance, as prayed for, which is impugned in this

second appeal.

This Court while admitting the second appeal, formulated the following substantial questions of law.

Whether the Lower Appellate Court was right in the view it took that on the strength of the document dated 19.1.1984, respondent was

entitled to a decree for specific performance and

Whether the Appellate Court was right in decreeing the suit in the absence of the respondent establishing his readiness and willingness to

perform his part of the contract.

Heard the learned counsel for the appellant, Mr. S. Kadarkarai and the learned counsel for the respondent, Mr. S. Gopalakrishnan.

The appellant/defendant had purchased the suit property on 30.5.1979 under Ex.A5, which vested the right in her favour, not disputed. Ex.A3

is an agreement for sale dated 19.1.1984, said to have been executed by the defendant in favour of the plaintiff, agreeing to sell the suit property,

for a stated consideration of Rs. 11,000/-. The execution of this document is more or less admitted, though the nature of the document is disputed,

by the defendant/appellant. According to defendant/appellant, it is a mortgage, evidencing the loan transaction, whereas it is the case of the

plaintiff/respondent that it is an agreement for sale, simplicitor, and there was no loan transaction between the parties. After the execution of Ex.A3,

it seems, the plaintiff had not taken or initiated any effective steps to get a sale deed, in pursuance of Ex.A3. The defendant/appellant, who

contended that Ex.A3 is a document relating to loan transaction, issued a notice, Ex.A1 on 3.12.1986, alleging that the amount borrowed under

the document was discharged and therefore, the holder of Ex.A3 should return the title deed viz., Ex.A5, raising other grounds also. The plaintiff,

then woke up and issued a reply on 20.1.1987, as seen from Ex.A2, reiterating that Ex.A3 is an agreement for sale, demanding the execution of

the sale also, which evoked no response and therefore, as said above, he filed the suit, though failed before the trial Court, succeeded in the first

appeal and hence the decree and judgment of the first appellate Court are impugned.

A reading of Ex.A3, as such makes it crystal clear that it is an agreement for sale, under which the defendant intended to sell the property to

the plaintiff, where the plaintiff had also agreed to purchase the property. If this document is to be construed otherwise, then in my opinion, the

initial burden is upon the defendant, to prove so, bringing to surface clinching circumstances, at least that she was defrauded or cheated or her

signatures or thumb impressions as the case may be, were obtained by the plaintiff, using undue influence, taking his dominant position, when the

defendant was in a distress condition. If these things are proved, prima facie, to certain extent, then it is for the plaintiff, to establish that Ex.A3 is an

agreement for sale, intended to be acted upon so, and in pursuance of the same, he was always ready and willing to perform his part of the

contract, whereas the defendant alone had failed to perform her part of the contract, thereby impelling this Court, to extend the equitable relief in

his favour.

The learned counsel for the appellant Mr. S. Kadarkarai submitted that the surrounding circumstances in this case, amply established the fact,

that Ex.A3 was not signed by the defendant, understanding as the same is one for sale agreement, to be enforced, which was properly appreciated

by the trial Court, but overlooked by the first appellate Court. It is the further submission of the learned counsel for the appellant, that there is no

averment in the plaint regarding the readiness and willingness to perform the contract by the plaintiff, within the reasonable time. These things would

show as per the submission that Ex.A3 transaction was only as loan transaction, not intended to be enforced, as agreement for sale. The learned

counsel further submits that even as per the evidence of P.W.1, the essential ingredients, contemplated u/s 16(c) of the Specific Relief Act were

not complied with, and therefore, even in the absence of denial in the written statement by the defendant regarding readiness and willingness, the

suit must fail, but unfortunately, the appellate Court has not properly considered the evidence, thereby rendered a judgment, perverse in nature,

which requires setting aside. It is the further submission of the learned counsel for the appellant, that an illiterate lady, who does not know to read

and write, was defrauded by the money lender, viz., the plaintiff, taking advantage of the pathetic condition of the defendant, who was badly in

need of money, to meet the medical expenses of her son and using the dominant position, in order to derive unfair advantage, a mortgage is

converted as an agreement for sale and in this view also, the suit for specific performance is not maintainable.

The learned counsel for the respondent/plaintiff would contend, that there are in built or intrinsic evidence in Ex.A3 itself, to conclude

unhesitatingly that this is an agreement for sale, intended to be acted upon, which was acknowledged by the plaintiff, at later point of time also and

therefore, branding the same or labeling the same as mortgage, is untenable, which was correctly noted by the first appellate Court, decreeing the

suit, reversing the trial Court''s finding. It is the further contention of the learned counsel for the respondent/plaintiff, that the means of the plaintiff,

his readiness and willingness were not challenged and therefore, the question of dismissing the suit, for the alleged non compliance of Section 16(c)

of the Act, would not arise for consideration. To appreciate the above case and counter case, we have to see the pleadings in this case then only,

that could be properly applied, to fit in with law, to reach the just conclusion.

Section 16(c) of the Specific Relief Act mandates, who fails to aver and prove that he has performed or has always been ready and willing to

perform the essential terms of the contract, which are to be performed by him, other than the terms of performance of which has been prevented or

waived by the defendant, cannot enforce the specific performance of a contract, in his favour. As rightly pointed out by the learned counsel for the

appellant, I feel this mandatory provision is not strictly complied with, though there are certain averments. Paragraph-7 of the plaint reads,

... that he is ready and willing to complete the sale on his part"".

Nowhere in the plaint, it is stated that the plaintiff was anxious to obtain a sale deed, in pursuance of the sale agreement, but the defendant alone

failed to perform the same or evaded or postponed, under some pretext or otherwise. Even in the cause of action paragraph, it is not even stated

giving the dates, that the cause of action had arisen on the dates of demands for the execution of the sale deed. Therefore, in my opinion, the plaint

is elegantly silent regarding the steps said to have been taken by the plaintiff to take the sale deed, in pursuance of the sale agreement. Admittedly,

till the defendant had issued a notice, the plaintiff had not moved even an inch, to perform his obligation viz, in this case, to take a sale deed, and

register the same, in pursuance of Ex.A3. When the plaint itself is silent, regarding the above aspect, there was no necessity for the defendant, to

say that the plaintiff was not ready and willing to perform his part of the contract throughout. Only, in this way, it seems to my mind, that the alleged

readiness and willingness of the plaintiff, was not challenged in the written statement. That does not mean, that the plaintiff is relieved of his duty, to

plead and prove the ingredients, required u/s 16(c) of the Act. The absence of plea, whether, would disentitle the plaintiff from getting a decree for

specific performance, will be decided at later point of time, after giving a finding regarding the enforceability of Ex.A3.

On behalf of the plaintiff, to prove the execution or the genuineness of the agreement, no witness has been examined, except the plaintiff.

Therefore, the learned counsel for the appellant seeking aid from the decision in P. Retnaswamy v. A. Raja and another 2001 (3) L.W.603

submitted that, at least one of the witnesses ought to have been examined, to prove the genuineness of the agreement, and the non examination of

the witnesses would disentitle the plaintiff, in getting a decree for specific performance. In the case involved in the above decision, it seems, the

plaintiff had pleaded one agreement and let in evidence, more or less projecting a new agreement or substituting entirely a new agreement.

Therefore, this court had held in that case, it is the duty of the plaintiff to prove the genuineness of the agreement and examine at least one of the

witnesses, to prove the execution thereof and the failure to do so, will result, in finding no merit in his case. This principle could not be extended, as

such in our case, because of the fact, it is the consistent case of the plaintiff regarding the agreement, as averred in Ex.A3, in the pleadings as well

as at the time of giving evidence also. In view of the admitted fact that Ex.A3 was executed by the defendant, to prove its execution or its

genuineness as the case may be, no attester need be examined and law does not mandate to prove an agreement, at least one of the attesters

should be examined, the further fact being, it is not a document, to be attested under law. Therefore, the above ruling will not come to the aid of the

defendant in this case.

From the reading of the written statement, it is seen that it is the specific case of the defendant, that the plaintiff had defrauded her, taking

advantage of her illiteracy and ignorance and therefore, the document in which she had signed, believing as mortgage, could not be enforced. I am

unable to find any specific pleadings, such as fraud, undue influence or some kind of dominant position said to have been exercised by the plaintiff

and what is the distress condition of the defendant if any, to subscribe her thumb impression in Ex.A3, believing as mortgage, though the document

in its term, is an agreement for sale. In the absence of specific plea regarding undue influence, misrepresentation, etc., it is impossible to construe

that the plaintiff might have defrauded the defendant, while advancing the amount, instead of taking mortgage, obtained sale agreement. The

evidence available on record would suggest that this defence in this case is unacceptable and unbelievable. The very fact that the defendant is an

illiterate lady, will not take us automatically to the conclusion, that the plaintiff defrauded her or in order to obtain unfair advantage, extracted

Ex.A3, without disclosing the contents or nature of the document. In the plaint, the plaintiff describing the sale agreement, had further pleaded that

on 19.7.1985, the defendant also had executed a general power of attorney in favour of him, wherein she acknowledged the sale agreement dated

19.1.1984. Those allegations are not specifically denied. Even the execution of the general power of attorney is not disputed. That document is

exhibited as Ex.A4. Since the execution of this document is not questioned, the further fact being, it is a registered document, recitals therein could

be safely relied on.

Under Order VIII Rule 5 C.P.C. - every allegation of fact in the plaint, if not denied specifically or necessary implication, or stated to be not

admitted in the pleading of the defendant, shall be taken to be admitted. It is the duty of the defendant, if she wants to dispute a document, that too

when it is pleaded specifically in the plaint, she should deny the same specifically wherever there was a reference, regarding the sale agreement.

When this fact is known, as represented in the notice, as well as pleaded in the plaint, the defendant has not questioned Ex.A4 or the recitals

therein. It is not the case of the defendant that this is also a document evidencing the loan transaction or she affixed her thumb impression under

some impression and therefore, the recitals therein should not be taken into consideration. In this view, I conclude, the recitals in Ex.A4 should be

taken as the admission of the defendant regarding the sale agreement.

Under Ex.A4, the defendant had acknowledged the sale agreement dated 19.1.1984, for which there is no explanation. Therefore, it is futile

on the part of the defendant, to contend that she had no knowledge about the sale agreement, whereas she signed in Ex.A3, under the belief that it

is only a mortgage deed. If the plaintiff had defrauded the defendant, and obtained Ex.A3, then at least when Ex.A4 was executed, the defendant

should have questioned the act of the plaintiff, what for this General Power of Attorney is being taken, why there is a mention about the previous

document, labeling the same as sale agreement. It seems there was no murmur or demur at the time of execution of Ex.A4, which should prompt

anyone to say, that Ex.A3 is an agreement for sale, and that is why at a later point of time also, the defendant had acknowledged the same and

there cannot be any other view in this matter.

The defence of the appellant is that she approached the plaintiff for a loan of Rs. 11,000/- and the plaintiff also agreed to lend the same.

Generally, loans are obtained or borrowed to meet the urgent necessities and unavoidable expenses. Therefore, the borrower i.e. the debtor,

always should receive the entire debt, if not paid, should have insisted for the payment of the entire loan amount. Then only in the ordinary

circumstances, a debtor would execute the document, evidencing the said loan transaction, mentioning the amount also. If this principle is applied in

this case, the irresistible conclusion must be, Ex.A3 could not be termed as mortgage deed. D.W.1 says that she was badly in need of money and

that is why, she had approached the plaintiff, for the said amount. If that is the case, the defendant should have received the entire amount of Rs.

11,000/-, and she would not have allowed any amount to be paid later on. But, contrary to this general conduct, the defendant would say, that

only a sum of Rs. 5,000/- was paid, but the plaintiff who promised to pay the balance, failed to pay the same at later point of time, which appears

to be fertile imagination of the defendant and I find no iota of truth in this contention. Assuming that the plaintiff promised to pay the amount at later

point of time, when not paid, immediately i.e. at least within 1 or 2 months, the defendant ought to have questioned the plaintiff, demanded the

balance, and on his failure, should have issued a notice forthwith. But admittedly, till the date of Ex.A1 i.e. 3.12.1986, for roughly two years or so,

she had not taken any steps, which would belie the defence, as an unadulterated lie. Since Ex.A3 was executed as an agreement of sale, it recites

the payment of Rs. 5,000/- as advance, saying further, the balance amount of Rs. 6,000/- will be paid at the time of registration, stands to reason

to believe. The first appellate Court considering this fact in its proper perspective, had come to the conclusion that Ex.A3 must be the sale

agreement, intended to be acted upon and I find no contra acceptable evidence, to take contra view.

On the basis of illiteracy and ignorance, to nullify the effect of Ex.A3, the learned counsel for the appellant very much relied upon certain

decisions of this Court as well as the Apex Court. In Thirumalai Vadivu Ammal v. Muthammal 1999 (2) L.W. 459 this Court has taken the view

that an illiterate woman signed in a document, when her mind did not accompany her thumb impression or signature, then that document is liable to

be set aside. The case involved in the above decision relates to a settlement deed, where there was a specific plea of undue influence, for which

materials were available, in addition to some more evidence to prove that the executant therein had no proper vision and her hearing was also

impaired. In that view of the matter, it was held, that the plea of the plaintiff in that case is non est factor and the plaintiff being an illiterate woman,

the good faith and genuineness of the transaction should be proved only by the defendants. In this case, except the fact that the defendant is a lady,

unable to read and write, there is no evidence worthy of credence, except the ipsi dixit of D.W.1, to conclude that she is ignorant about the

worldly affairs or she was prevented from knowing things by any deceitful method. In this view of the matter, I am of the view, the above ruling is

of no use, to advance the case of the defendant to terminate Ex.A3 as unenforceable.

In Mrs. Sethani v. Bhana AIR 1993 SC 956 the Apex Court of this land had held, when the purchaser was in a position to dominate and take

advantage over another, then the onus lies on him, to prove that the sale deed was not executed under undue influence. In that case also, it seems

the vendor was old, blind, illiterate and a tribal woman, totally at the mercy of the respondent, with whom she was living till her death. In that

situation, the vendor had absolute control over the old illiterate lady and therefore, he had the dominant position also, to control the old lady and in

that process, using undue influence, it seems a sale deed was taken. Considering those facts and other attending circumstances of the case, the

Apex Court had ruled, that the onus lies on the vendor to prove that the sale deed was not executed under undue influence, which is of no use in

our case, because of the fact, nowhere in the written statement as aforementioned, it is the case of the defendant, that she was compelled to

execute the sale agreement viz., Ex.A3 under undue influence.

In Chidambaram Pillai & Others v. Muthammal 1993 (1) L.W.466 a Division Bench of this Court had held that the special cloak of protection

applied to pardanashin woman has to be applied to illiterate women as well. Placing reliance on this decision, the learned counsel for the appellant

would submit, that the illiterate defendant was cheated by the plaintiff, for which I find no evidence, except the argument advanced by the learned

counsel. Further, in view of the Apex Court''s ruling in Smt. Hans Raji Vs. Yosodanand, , this principle could not be automatically extended to all

illiterate women. The Apex Court in the above ruling has held, when there is no evidence to show that the illiterate lady was suffering from any

ignorance or illiteracy or mental deficiency, she could not be compared to pardanashin lady and therefore, the protection extended to those

categories, could not be extended to an illiterate woman. In this ruling, it is also further held, that the non examination of attesting witness to the sale

deed, is of no consequence, the fact being, sale deed does not require attestation, which could very well be extended to Ex.A3 also. Therefore, as

said above, the non examination of the attesting witness, in this case, will not weaken the case of the plaintiff or in other words, it will not strengthen

the defence also.

Ex.A3 is a registered document and the defendant and plaintiff appeared before the Registrar, had admitted the execution of the document

also. Thereafter, till the date of Ex.A1, it was not challenged. The initial burden is upon the defendant to prove that she affixed her thumb

impression, in this document, without knowing its content, and under the faith that this is a mortgage deed or evidencing loan transaction. If that is

so, it must be known to the attesters by name Maharajan and Kumar, who appear to be close to the defendant. By examining at least one of the

attesters, irrespective of the burden of proof, even the defendant would have very well established, that the transaction was only a loan transaction

and there was no agreement or any intention, for the execution of the sale agreement intending to sell the property. The failure on the part of the

defendant, to examine any other witness, including the attesters or document writer, would suggest, that this document was intended to be acted

upon only as sale agreement, and not as mortgage deed and that is why, when it recited that the plaintiff had paid a sum of Rs. 5,000/- as advance,

it was not protested and not only that, the defendant had also not initiated any action for receiving, the balance of alleged loan amount also.

Ordinarily, if a debtor borrows amount from a creditor executing a mortgage deed, it is not necessary, that the original title deed should be

handed over. In this case, admittedly, the original title deed for the suit property viz., Ex.A5 was handed over to the plaintiff, as spoken by him,

only at the time of execution of this document, suggesting that only with the intention of selling the property, the defendant should have handed over

the original title deed also, which was well considered by the first appellate Court, not properly considered by the trial Court. Viewing the case

from this angle also, the reasonable and unavoidable conclusion that could be drawn by any court is that, Ex.A3 is a sale agreement and not a

mortgage deed.

The learned counsel for the appellant submits that the properties in and around the suit property, are having higher market value and the suit

property, at the relevant period, would have fetched, not less than Rs. 75,000/- and therefore, the defendant would not have executed a sale

agreement, agreeing to sell the property for a pittance of Rs. 11,000/-. To prove that at the relevant period, in and around the suit property,

properties were selling at the rate quoted by the defendant, there is no scrap of paper and I should say, no oral evidence also. Hence, on the basis

of the market value, which is not proved, I am unable to fix the seal of mortgage over Ex.A3, whereas I should read as it reads viz., sale

agreement.

The appellant''s case is, that she had signed the document or affixed her thumb impression, believing that it was only a mortgage deed. To

buttress the above evidence, aid was sought from Exs.B1 and B2. We find some reference regarding these chits, at paragraph 5 of the written

statement, which says, what was executed by the defendant was mortgage deed and not an agreement for sale, could be well founded by the chits

issued by the plaintiff, showing the balance amount, towards principle and interest till 24.11.1986 due on the mortgage. Rightly in my opinion, both

the courts below have disbelieved the case of the defendant, regarding Exs.B1 and B2 and that is why the learned counsel for the appellant also

failed to advance any substantial argument on the basis of Exs.B1 and B2, to label Ex.A3 as mortgage. The falsity of the defence could be seen

from the perusal of Exs.B1 & B2, whether it is proved or not.

It is not the case of the defendant that these chits were issued by the defendant only to defraud the defendant and according to plaintiff these

documents are genuine one, though not proved. Ex.B.1 says the balance as Rs. 28,530/- and Ex.B2 says the balance as Rs. 29,545/-. If these

documents are to be relied on, to prove Ex.A3 is a mortgage deed, then the plaintiff should admit, that she had received Rs. 11,000/- as principal

amount, giving the rate of interest, then calculating the principal and interest, to the extent of the amounts mentioned in Exs.B1 & B2. In this regard,

there is no plea and evidence. Therefore, it seems only in order to make out a case, if possible, to overcome the difficulty of Ex.A3, on the ill

advise or otherwise, the defendant had taken a stand, as if Ex.A3 is a mortgage deed for which purpose, Exs.B1 and B2 were concocted, which

were rightly rejected by the courts below. I have pointed out these things, only to expose the defendant, how she has not projected the real case

before the courts below, whereas she wanted to take advantage, by creating some doubts, in the minds of the court to negative the discretionary

relief. Thus, settling Ex.A3 is an agreement for sale, now we have to see whether the plaintiff was/is always ready and willing to perform his part of

the contract, if so, thereby inducing the Court to grant a decree for specific performance.

The sale agreement came into being on 19.1.1984 and it does not contemplate time for performance. It says the plaintiff has to pay the balance

of Rs. 6,000/- and to take sale deed at his expenses, including registration. Thereafter alone, the obligation on the part of the defendant comes viz.,

delivering possession of the property without any obstruction. It further recites, if there is delay in execution of the document, or in handing over

possession of the property, by paying a sum of Rs. 6,000/-compulsory registration also could be done. It does not say, the possession should

precede before the registration of the document, whereas it is specific that the possession should follow after the registration of the document.

Therefore, handing over of possession or not handing over of possession cannot be a ground for the plaintiff, for the non-preparation of the sale

deed, in order to have it registered, paying the balance of sale consideration, even compulsorily. As such the plaintiff was satisfied about the market

value of the property, about the title of the defendant, about the nil encumbrance and therefore, there is nothing on the part of the defendant, to

perform the contract and if at all, her performance is to execute the sale deed at the request or on demand by the plaintiff viz., the agreement

holder. Therefore, it is incumbent upon the plaintiff to prove that within the reasonable time, since time has not been fixed for performance, he

requested the vendor to execute the sale deed, but refused to do so under some pretext or otherwise, thereby evading the responsibility and the

liability. If the above aspects are not proved, I am of the opinion, that the plaintiff should be non suited, for his non readiness and non willingness to

take the sale deed, within the reasonable time. True, time is not the essence of the contract, but that does not mean that when there is no time limit

fixed for the performance, the agreement holder should make the vendor to wait, for an unlimited period, unmindful of the day-to-day escalation of

the price, in respect of urban properties. In this view, though the agreement does not contemplate time bound execution of the sale deed, it is

reasonably expected, that the performance should be done within the reasonable time, failing which one can safely conclude that the vendee was

not willing to perform his part of the contract, thereby committing laches also, in postponing the execution of the sale deed, in order to derive unfair

advantage by the escalation of the market value, thereby depriving the land owner, regarding the market value, compelling him/her to sell the

property, as agreed elsewhere. In this view, for such a person, the discretionary relief should be negatived. On this basis, we have to see the

conduct of the plaintiff and his readiness and willingness as contemplated u/s 16 of the Specific Relief Act, 1963.

I have already pointed out about the absence of pleadings in the plaint regarding the plaintiff''s readiness and willingness from the day one of the

agreement. Nowhere, in the plaint, the plaintiff whispered that he requested the defendant to execute the sale deed, whereas the defendant alone

evaded or postponed or refused to execute the sale deed. After waiting for a reasonable time, the defendant alone had issued notice to the plaintiff,

labeling Ex.A3 as if it is not an agreement for sale, whereas it is a document evidencing the loan transaction. For the notice Ex.A1, when the

plaintiff had issued reply notice, there also he failed to say, though he had demanded the execution of the sale deed, the defendant failed to do so

and thereby avoiding the execution, the notice was issued or some like that. The absence of such pleadings regarding the actual date of demand for

the execution of the sale deed, prompts me to think, though the plaintiff had obtained Ex.A3, he never took any serious steps, to enforce the

agreement, thereby showing though it is an agreement for sale, it was not intended to be acted upon. Only, in this way, if at all it could be said

Ex.A3 might be a document evidencing the loan transaction, but not otherwise, as adverted by me supra. Only on the basis of the surmises and

conjectures, as did by the trial Court, I am unable to say clinchingly that Ex.A3 was not an agreement for sale, whereas it came into existence,

evidencing the loan transaction. Even ignoring the absence of material pleadings, as contemplated u/s 16(c) of the Specific Relief Act, we have to

see whether any evidence available, at least, in this regard, to grant the discretionary relief to the plaintiff.

The plaintiff is a money lender. Therefore, he would not have had the difficulty of finance in taking the sale deed. Even if he had the intention to

purchase the property, he ought to have purchased the same, by an out right sale, instead of going for an agreement. The payment of balance of

Rs. 6,000/- is not a hard task. Despite the fact, the plaintiff entered into an agreement paying a sum of Rs. 5,000/- retaining the balance, which

would suggest to certain extent, that though Ex.A3 was an agreement for sale, the same was not intended to be acted upon and that is why he kept

quite, without any positive movement, till Ex.A1 emanated from the defendant. The plaintiff as P.W.1 also failed to give evidence, about his

readiness and willingness regarding the performance of his part of the contract, which was not prevented otherwise. If he had been ready and

willing to perform his part of the contract, at least, he ought to have purchased the stamp papers, engrossed the sale deed and requested the

defendant to come to the registrar''s office to register the document, after paying the balance of the sale consideration. These things have not been

done admittedly by the plaintiff. As P.W.1, the plaintiff reiterated the execution of Ex.A3, payment of Rs. 5000/- and the future activities

contemplated under Ex.A3, including the receipt of Ex.A5. Then he has deposed that the suit has to be decreed, since he is willing to pay the

balance of sale consideration. Nowhere in his deposition also, he has whispered, about the demand if any made by him, for the execution of the

sale deed, or any concrete steps taken by him to purchase stamp papers to engross the sale deed or any demand made to the defendant, for the

completion of the sale deed. Therefore, the oral evidence of P.W.1 is very much lacking, to fulfill the conditions contemplated u/s 16(c) of the

Specific Relief Act, which says - who fails to aver and prove that he has performed or has always been ready and willing to perform the essential

terms of the contract, which are to be performed by him, which should follow, the contract cannot be enforced in his favour.

The courts below have not concentrated very much about the readiness and willingness of the plaintiff, to enforce the contract and grant the

discretionary relief. Both the courts have concentrated very much only upon Ex.A3 to find out, whether it is an agreement for sale or a document

evidencing the loan transaction. The trial Court concluding that Ex.A3 is a document evidencing the loan transaction, came to the conclusion, that

the suit for specific performance is not enforceable and failed to give a finding in the alternative, whether the plaintiff was ready and willing to

perform his part of the contract. The first appellate Court, though reversed the finding of the trial Court, concluding that Ex.A3 is an agreement for

sale, failed to give a finding, as rightly submitted by the learned counsel for the appellant, whether the plaintiff was ready and willing to perform his

part of the contract and in this way, the first appellate Court has committed an error in granting a decree for specific performance, though not

committed an error in concluding that Ex.A3 is an agreement for sale. The fact that Ex.A3 is an agreement for sale and it could be lawfully

enforceable alone, is not sufficient to grant a decree for specific performance, since certain obligations and liabilities are to be performed by an

agreement holder, which were not performed by the plaintiff to the satisfaction of the court, as narrated above by me. In this view, I conclude the

plaintiff is not entitled to a decree for specific performance and the suit for specific performance must fail, as concluded by the trial Court, though

not for the reasons assigned by it, but on some other grounds.

The trial Court applying the principle of equity, considering the fact, that the payment of Rs. 5000/- not discharged, directed the defendant to

pay the same to the plaintiff. u/s 22 of the Specific Relief Act, unless the refund of money has been specifically claimed, ordinarily, the Court is not

bound to order refund of the money. If that section is applied in its strict sense, the plaintiff may not be entitled, even to get the refund of amount,

whether it is a loan amount or advance paid by him. The agreement had come into existence in the year 1984. By the refusal of the specific

performance, if the plaintiff who had advanced a sum of Rs. 5,000/-, which is not admittedly discharged, is compelled to file a suit for return of the

amount, it will take another decade, thereby compelling the parties to spend their lifetime in the Court. On the other hand, if the amount already

paid by the plaintiff is ordered to be refunded, with reasonable interest, then further litigation could be avoided, and the parties also will be

benefitted to the major extent. In this view, as rightly did by the trial Court to some extent, I am inclined to modify the decree granted by the trial

Court. Though it was contended on behalf of the appellant/s, that interest was paid, to prove the same, there is nothing on record except the

unacceptable evidence of D.W.1. Therefore, I conclude, that the plaintiff, who had parted away a sum of Rs. 5,000/- under Ex.A3, is entitled to

refund of the same, with reasonable interest, at 9% per annum from the said date, till payment. To the above said extent, the trial Court''s decreed

is to be modified. For the foregoing reasons, though I have decided, that Ex.A3 is an agreement for sale, the first appellate Court was not right in

decreeing the suit, in the absence of establishing the plaintiff''s readiness and willingness, to perform his part of the contract and the substantial

questions of law are answered accordingly.

The result, therefore is, the decree and judgment of the first appellate Court is set aside and the decree and judgment of the trial Court is restored

and modified, granting a decree in favour of the plaintiff, directing the appellant(s)/defendant(s) to pay a sum of Rs. 5,000/- with interest thereon at

9% per annum from the date of Ex.A3 till the date of payment and on payment, the appellants are entitled to get back the original title deed viz.,

Ex.A5. Considering the peculiar nature of the case, I order the parties to bear their costs, throughout.