(Prayer: Original Side Appeal is filed under Section 96 of CPC under Clause 15 of Letters Patent, read with Order XXXVI Rule1 of OS Rules, praying to set aside the Decree and Judgement and Passed in C.S.NO.200/2011 dated 27/06/2017.)

K. Govindarajan Thilakavadi, J.

1. The appellant who is the plaintiff in C.S.No.200 of 2011 has Challenged the judgment and decree dated 27.06.2017 passed in the said suit.

2. For the sake of convenience, the parties are referred to as per their ranking in the suit.

3. The facts leading to the filing of the above suit are as follows:

                     3.1. The suit property absolutely belonged to the defendant and the defendant approached the plaintiff and offerred to sell the suit property to meet out his family commitments and the plaintiff accepted the offer and both the defendant and the plaintiff agreed that the sale consideration should be Rs.1,05,00,000/- and the plaintiff paid a sum of Rs.50,000/- as an advance towards part of the sale consideration to the defendant on 22.01.2011 and on the same day, the agreement in writing was entered into between the plaintiff and the defendant in the presence of witnesses and the agreement had been hand written.

                     3.2. As per the agreement above mentioned, the defendant had to execute the sale deed in respect of the suit property on or before 22.02.2011 in favour of the plaintiff after the receipt of the balance sale consideration. On 06.02.2011, the plaintiff and the defendant met in person and discussed the execution of the sale deed and to register the same on 07.02.2011. Since encumbrance certificate was not ready, the registration could not be carried out on 07.02.2011. Subsequently, as agreed between the plaintiff and the defendant, the date was fixed for the execution and registration of the sale deed in respect of the suit property on 09.02.2011. The plaintiff had drawn Demand Draft for a sum of Rs.28,40,000/- in favour of the defendant towards the part of the sale consideration and balance of Rs.76,10,000/- was kept by way of cash for the defendant and on that date, the plaintiff was waiting at Sub Registrars office in Anna Nagar for registration. But, the defendant did not turn up for execution and registration. On 10.02.2011, the plaintiff sent a registered notice to the defendant along with the copy of the Demand Draft for Rs.28,40,000/- calling upon the defendant to execute sale deed in respect of the suit property as agreed, after the receipt of the balance sale consideration. The above said notice was returned with postal endorsement door locked. In order to prove the readiness and willingness on the part of the plaintiff, she drew a Demand Draft dated 11.02.2011 drawn on Axis Bank for a sum of Rs.76,10,000/- in favour of the defendant apart from the Demand Draft of Rs.28,40,000/- and sent a telegram on 19.02.2011 to the defendant calling upon him to execute the sale deed and register thereof, without any further delay. But, the defendant has not responded to the plaintiff’s request and evaded to perform his part of the obligation. The plaintiff has always been ready and willing to perform her part of the contract by paying the entire balance sale consideration. On the other hand, the defendant had refused to fulfil his part and was trying to dispose of the suit property in favour of the third parties. Hence, left with no other alternative, the plaintiff was necessitated to lay the suit for appropriate reliefs.

4. The suit was resisted by the defendant by stating that it was the plaintiff's husband, R.P. Dharmalingam, who approached him to purchase the property, not the other way around. At the time, the defendant was emotionally and physically vulnerable due to the death of his wife, his heart ailment, and responsibility for his aged mother. Although he accepted an advance of Rs.50,000/-, he did so reluctantly and made it clear that the proposed sale would be finalized only after obtaining the approval and consent of his mother and brother. Therefore, no final or binding agreement for sale came into existence.

                     4.1. It was further contended by the defendant that, after negotiations, only a handwritten note was prepared stating the sale consideration as Rs.1,05,00,000/- and requiring the balance payment to be made on or before 10.02.2011. No stamped sale agreement was executed, and the defendant alleged that he was coerced into signing the plain paper, making it invalid. According to the defendant, the plaintiff deliberately omitted these facts from the plaint and suppressed material facts to mislead the Court.

                     4.2. Subsequently, on the advice of his brother and at the insistence of his mother, the defendant decided not to sell the property and instead refund the advance amount. Before the agreement period expired, he obtained two demand drafts of Rs. 25,000/- each in the plaintiff'’s favour and attempted to send them by post. The first cover, sent on 22.02.2011, was returned marked "always door locked/intimation delivered." A second attempt on 09.03.2011 was returned marked "party out of station." On the third attempt, the demand drafts were successfully delivered, with postal acknowledgment showing receipt on 01.04.2011.

                     4.3. The defendant alleged that the plaintiff and her husband were intent on wrongfully acquiring the suit property and are therefore not entitled to specific performance. He denies the plaintiff's claim that they met on 06.02.2011 or agreed to execute the sale deed on 09.02.2011, stating that no such meeting took place. The defendant further stated that, after learning of his reluctance to sell due to his mother's serious illness, the plaintiff purchased demand drafts only to create an appearance of readiness and willingness to perform the contract. The defendant denied receiving or having knowledge of the alleged demand drafts or the plaintiff'’s presence at the Registrar's office, asserts that he never intended to sell the property, and denied any attempt to sell it to third parties. He, therefore, sought for dismissal of the suit.

5. On the pleadings set out above, the learned single judge framed the following issues :

                     (1) Whether the Document relied upon constitute a legally valid agreement of sale?

                     (2) Whether the defendant's termination of the agreement is valid?

                     (3) Whether the plaitniff is ready and willing to perform his part of the agreement?

                     (4) Whether the conduct of the plaintiff during and after the agreement period vitiated the agreement?

                     (5) Whether the plaintiff is entitled to the relief sought for?

5.1. In support of the plaintiff’s case, PW1 was examined and Exs.P1 to P7 were marked and on the side of the defendant D.W. 1 & D.W,2 were examined and Exs.D1 to 11 were marked.

                     5.2. The learned Single Judge, after analysing the oral and documentary evidence, dismissed the suit on the ground that the plaintiff has failed to establish her readiness and willingness to perform her part of the contract, aggrieved by which, the present appeal has been filed by the plaintiff.

6. Mr.T.M.Pappiah, the learned counsel for the appellant/plaintiff would submit that the appellant has entered into a valid sale agreement with the respondent/defendant and therefore, is entitled for the relief of specific performance under Section 15(a) of the Specific Relief Act, 1963. Further the defendant himself admitted the agreement between the plaintiff and the defendant entered between them. The learned Single Judge having held that the absence of stamping would not affect the validity of the agreement, erroneously declined the relief of specific performance to the plaintiff. He would further submit that since the agreement remained alive and the suit is on the subsisting contract and the defendant himself refused to perform the agreement and the learned Single Judge found that no coercion, force or other improper conduct was established and in the absence of any material to show that the plaintiff deliberately avoided Ex.D5 to Ex.D7 communications, the learned Single Judge ought to have granted the relief of specific performance in favour of the appellant. His further contention is that Section 16(c) of the Specific Relief Act, 1963, read with its explanation provides that where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit into Court any money except when so directed by the Court and that the appellant has established her readiness and willingness to perform her part of contract through concrete evidence. To establish readiness, the appellant has produced Bank drafts to the defendant within the agreement period and the continuous chain of communications on the part of the appellant would establish that she was always willing to perform her part of contract. Further, the defendant himself refused to sell, the plaintiff' was not required to tender the money. He would further submit that though time was not essence of contract, the plaintiff performed her part of contract within time, While so, the findings on services of notices by the learned Single Judge is incorrect and immaterial to decide the suit. His further contention is that where the agreement, the part payment and the vendor's breach are proved, discretion should be exercised in favour of the purchaser. Refusing the relief in such a case would only encourage dishonesty and that the 2018 amendment to the Specific Relief Act, though prospective, is a guide to the exercise of discretion even in earlier transactions. He would further submit that escalation in prices is no ground to refuse the relief to diligent purchaser. At the most, the Court may balance the equities by directing an additional payment and that without prejudice, the plaintiff is ready and willing to deposit the entire balance of Rs.1,04,50,000/- into Court to show her continuous readiness. He would further submit that the 2nd and 3rd respondents claim under any transfer made during the pendency of the suit or of this appeal, that transfer is hit by the doctrine of lis pendense under Section 52 of the Transfer of Property Act, and cannot defeat the decree. While so, the learned Single Judge having found the agreement valid, the termination invalid and the plaintiff' blameless, it dismissed the suit on the point of readiness and willingness is contrary to the settled position that time is not essence and overlooks the bank drafts covering the entire balance within the period, rejects unchallenged testimony and contemporaneous documents misreads Section 27 of the General Clauses Act, and imposes a notice requirement which Section 16(c) does not contain, warrants interference by this Court.

7. Despite notice, there is no representation on the side of the respondents 2 and 3. Mr.N.Vignesh the learned counsel for the 4th respondent/Bank would submit that, at the time of creating the mortgage, the decree in force was one rejecting specific performance and that the bank had no actual notice of any enforceable right in favour of the plaintiff. Since the Court had dismissed the suit on proper appreciation of oral and documentary evidence, the purchasers (the respondents 2 and 3) acquired legal title under a registered sale deed and consequently, they were competent to create an equitable mortgage in favour of the bank. Hence, he prayed for dismissal of the present appeal.

8. Heard on both sides. Records perused.

9. This appeal is directed against the judgment and decree of the learned Single Judge dismissing the suit for specific performance of an agreement of sale. Aggrieved thereby, the plaintiff has filed the present appeal.

10. The plaintiff instituted the suit seeking specific performance of an agreement of sale dated 22.01.2011 executed by the defendant marked as Ex.P2. The defendant admitted his signature in the said document. Further, there is nothing on record to establish that the said agreement was executed due to coercion, force or other improper conduct by the plaintiff. Therefore, the execution of the agreement is held to be genuine. According to the plaintiff, the sale consideration is fixed at Rs.1,05,00,000/- and plaintiff paid a sum of Rs.50,000/- as advance towards the part of the sale consideration to the defendant on 22.1.2011 and the defendant agreed to execute the sale deed in respect of the suit property on or before 22.2.2011 in favour of the plaintiff after receipt of balance sale consideration. It is understood that the plaintiff only a nominal advance under the agreement and was required to pay the balance sale consideration within the stipulated period. It is admitted fact that during the pendency of the proceedings, the property was conveyed in favour of 3rd parties.

11. The learned Single Judge held that although the agreement was genuine, the plaintiff failed to establish continuous readiness and willingness to perform her part of the contract as required under Section 16(c) of the Specific Relief Act, and, consequently, declined the discretionary relief of specific performance.

12. Now, points for determination arises in this appeal are:

                     (1)Whether the plaintiff is entitled to specific performance merely because the agreement of sale is genuine?

                     (2)Whether proof of financial capacity alone satisfies the requirement of readiness and willingness?

                     (3)Whether the subsequent sale in favour of third parties entitles the plaintiff to a decree?

13. Points 1 to 3

                     13.1. Specific Performance is an equitable and discretionary remedy. A genuine agreement by itself does not confer an enforceable right to obtain a decree. The plaintiff must establish by cogent evidence that she remained continuously ready and willing to perform her obligations from the date of agreement till the date of decree.

                     13.2. The appellant contended that she had sufficient financial resources to pay the balance consideration. Mere financial ability, however, is not synonymous with readiness and willingness. The conduct of the plaintiff throughout the contractual period is the decisive factor. The plaintiff has not produced satisfactory evidence to show that she demanded execution of the sale deed, tendered the balance consideration, or otherwise demonstrated her continuous willingness to complete the transaction. The plaintiff failed to establish that she was present at the Sub Registrar's office on 09.02.2011 waiting for the defendant with DD and cash. Though the plaintiff would contend that on 06.02.2011 there was a meeting with the defendant to be present on 09.02.2011 before the Sub Registrar Office for registration of the document, there is nothing on record to prove the same. The fact that the plaintiff was not cross examined on this aspect will not amount to proof of plaintiff's contention. Further, the plaintiff failed to establish that she was holding cash of Rs.76,10,000/- on 09.02.2011 and waiting for the defendant for the execution of the sale deed. The learned Single Judge rightly held that the plaintiff failed to prove the above facts by producing any bank statements and proof of borrowal. The plaintiff has not produced any draft sale deed or stamp papers to prove that the she was waiting for the defendant for the execution of the sale deed. Even the document writer was not examined. In fact, no independent witnesses were examined on the side of the plaintiff to corroborate her evidence.

                     13.3. Though the payment of only meagre advance itself fatal, however, when coupled with inaction and the absence of convincing evidence of diligent performance, it reinforces the conclusion that the plaintiff has failed to satisfy the statutory requirement under Section 16(c) of the Act. The Hon'ble Supreme Court in N.P. Thirugnanam vs. Dr.R.Jagan Mohan Rao reported in (1995) 5 SCC 115 held that continuous readiness and willingness is a condition precedent for grant of specific performance. In J.P. Builders vs. A.Ramadoss Rao reported in (2011) 1 SCC 429 the Hon'ble Supreme Court reiterated that readiness and willingness must be proved by conduct and not by mere assertions. Similarly in K.S. Vidyanandam Vs. Vairavan reported in (1997) 3 SCC 1 it was held that the equitable jurisdiction to grant a specific performance must be exercised judicially and not mechanically.

                     13.4. Though the subsequent sale in favour of third parties during the pendency of the suit is governed by doctrine of lis pendens under Section 52 of the Transfer of Property Act, such transfer is subject to the result of the litigation. Neverthless, unless the plaintiff first establishes her entitlement to specific performance, the doctrine does not improve his case. Since the plaintiff has failed to prove her readiness and willingness, no decree for specific performance can be granted even against the subsequent purchasers. Though the appellant has proved the execution of the agreement but has failed to establish continuous readiness and willingness as mandated by Section 16(c) of the Specific Relief Act. Financial capacity alone is insufficient . The subsequent alienation of the property does not confer any additional right upon the plaintiff.

                     13.5. Though, the appellant would claim that 2018 amendment to the specific relief Act, is prospective it act as a guide to the exercise of discretion in earlier transaction. The specific relief (Amendment) Act, 2018 brought about a paradigm shift in the law governing specific performance. Prior to the amendment, the relief of specific performance was essentially discretionary under Section 20 of the Act. After the amendment, specific performance became the general Rule, subject only to the statutory exceptions contained in the Act. In Katta Sujatha Reddy & Anr., Vs. Siddam Setty Infra Projects (P) Ltd.. and Ors., reported in 2022 INSC 865 a three Judge Bench of the Hon'ble Supreme Court authoritatively held that 2018 amendment is substantive in nature and prospective. It does not apply to transaction entered into before its enforcement on 1st October 2018. This principle has been reiterated by the Hon'ble Supreme Court in Gaddipati Divija and Anr., Vs. Pathuri Samrajyam & ors reported in (2023) 4 SCC 48 wherein the Hon'ble Court held that for agreements executed prior to the amendment, Section 16 as it stood amendment alone governs the rights of the parties. Though, the merits in Katta Sujatha Reddy were later reviewed, the declaration of law regarding the prospective operation of the 2018 amendment was not disturbed. Therefore, for agreements executed before 1st October 2018, the plaintiff must both aver and prove continuous readiness and willingness from the date of contract till the decree. The plaintiff failed to prove her conduct by reliable evidence such as timely demands, tender of consideration, appearance before the Sub Registrar if required or other Acts demonstrating and unequivocal intention to complete the transaction. Except asserting that she has sufficient funds, the plaintiff has not produced convincing evidence showing that she continuously demanded execution of the sale deed or was prepared to pay the balance consideration within the agreed period or within a reasonable time. In the absence of convincing evidence of continuous readiness and willingness, the plaintiff is not entitled for the relief of specific performance.

                     13.6. The findings recorded by the learned Single Judge are based on proper appreciation of oral and documentary evidence. The learned Single judge rightly exercised judicial discretion in refusing specific performance. We find neither perversity nor mis application of law warranting interference in appeal.

14. In the result, the Original side appeal is dismissed. There shall be no order as to costs.