Sathish Ninan, J.

1. The plaintiff is the appellant. The suit was one for specific performance of an agreement for sale, with an alternate prayer for return of advance sale consideration. The trial court declined the relief for specific performance; the claim for return of advance sale consideration was decreed in part.

2. Ext.A1 is the agreement dated 24.11.2011 which is sought to be specifically enforced. Ext.A1 was executed between the plaintiff and defendants 1 and 2. The second defendant is the wife of the first defendant. Under Ext.A1, defendants 1 and 2 agreed to convey 62.75 cents of property in favour of the plaintiff. The sale consideration fixed was ₹ 1,47,500/- per cent. Under Ext.A1, an amount of ₹ 10 lakhs was paid towards advance sale consideration. The period fixed for performance was up to 10.04.2012.

3. On 31.12.2011 and 16.04.2012 further amounts of ₹ 15 lakhs ₹ 9,75,000/- was paid towards advance sale consideration. Such payments were also endorsed on the reverse of Ext.A1. Thus, the plaintiff had paid a total amount of ₹ 34,75,000/-.

4. The plaintiff claims that the period for performance was thereafter extended up to 01.04.2015. Such extension was to enable eviction of a tuition centre which was functioning in the property. Alleging failure on the part of the defendant to perform the agreement, the suit was filed.

5. The second defendant died pending the suit. The first defendant along with additional defendants 3 to 5 are the legal heirs. The third defendant also died pending the suit. His legal heirs were impleaded as defendants 6 to 8. The legal heirs of late Ayyappan, who was yet another son of defendants 1 and 2, were impleaded as defendants 9 to 11.

6. The defendants admitted Ext.A1. Though the receipt of ₹ 15 lakhs on 31.12.2011 was admitted, the alleged endorsement on Ext.A1 was denied. They also admitted the receipt of an amount of ₹ 9,75,000/- on 16.04.2012 and its endorsement on Ext.A1. The claim that the period of the agreement was extended up to 01.04.2015, was denied. It was contended that the plaintiff was not ready and willing to perform the agreement. They raised a plea of having suffered damages.

7. The trial court held against the endorsement dated 31.12.2011, on Ext.A1. The court also found that the plaintiff failed to prove his readiness and willingness to perform the agreement. The claim regarding the further extension of Ext.A1 up to 01.04.2015 was also held against. The court fixed an amount of ₹ 9,75,000/- as compensation towards the loss sustained by the defendant. The plaintiff was granted a decree for return of the balance sale consideration.

8. We have heard Sri.B.Krishnan, the learned counsel for the appellant-plaintiff, and Sri.P.B.Subramanyan and Adv.Sreegesh on behalf of the respondents-defendants.

9. The points that arise for determination in this appeal are:-

                  (i) Is the endorsement dated 31.12.2011 on Ext.A1 true and genuine ?

                  (ii) Does the evidence on record establish extension of period of Ext.A1 agreement up to 01.04.2015 ?

                  (ii) Has the plaintiff proved his readiness and willingness to perform Ext.A1 agreement ?

                  (iv) Did the parties contemplate time to be the essence of Ext.A1 ?

                  (iv) Have the defendants substantiated their claim for damages ?

                  (v) Does the exercise of discretion by the trial court under Section 20 of the Specific Relief Act, in having declined the decree for specific performance, warrant correction ?

                  (vi) Does the decree and judgment of the trial court warrant any interference?

10. Before we proceed to discuss on the points, we note that, it is a common contention for the plaintiff with regard to all the points for determination that, the non-examination of the first defendant, who was the best person to speak about the transaction, is fatal. However, the evidence of DW1 gives a complete explanation for the non-examination of the first defendant. DW1 is the 4th defendant. She is the daughter of defendants 1 and 2. As was noticed earlier, defendants 2 and 3 died pending the suit. DW1, in her proof affidavit at paragraph 4 stated thus :-

                

                  Medical records to substantiate the claim, have been produced as Ext.B2 series. Therefore, the argument loses its gravity.

11. Now we proceed to consider the genuineness of the endorsement dated 31.12.2011 on the reverse of Ext.A1, which is marked as Ext.A1(a). The endorsement acknowledges receipt of ₹ 15 lakhs on 31.12.2011. The receipt of the said amount on that date is not in dispute. The endorsement further makes mention of the functioning of a tuition centre in the property and recites that the property shall be conveyed as soon as its functioning is stopped. The endorsement is purportedly signed by the first defendant. The signature is denied by the defendants. There are two witnesses to such endorsement. One of the witnesses was examined as PW2. He has vouched to the genuineness of the same. A perusal of the signatures of the first defendant, as obtaining in the remaining parts of Ext.A1, suggests the genuineness of the signature. There is no case for the defendants that the signature was obtained in blank. This endorsement is on the top of the page and crosses half page. There is a subsequent endorsement made on 16.04.2012 when an amount of ₹ 9,75,000/- was paid. That endorsement is admitted. Such endorsement is further below the endorsement dated 31.12.2011. We referred to the above only to notice that, without there having been any writing on the top portion of the page and up to or crossing the middle of the page, a further writing on 16.04.2012, towards the bottom of the page, at the place as seen in Ext.A1, is highly improbable. We do not find any material to hold against the genuineness of the endorsement dated 31.12.2011. The finding to the contrary entered into by the trial court is liable to be set aside and we do so.

12. The trial court held that the plaintiff failed to prove his resources to raise funds to perform the agreement. While the learned counsel for the appellant is justified in his contention that there is no specific denial of the financial capacity of the plaintiff, at paragraphs 10 and 11 of the written statement it is pleaded thus :-

                  “10. ….. But, even in spite of the same, the plaintiff had delayed payment of full sale consideration amount and on 16.4.2012, the plaintiff paid only a sum of Rs. 9,75,000/- only.”

                  “11. Thus, from the conduct of the plaintiff, as is apparent from the above facts, it is obvious that the plaintiff was never willing and ready to perform his part of the contract and was never ready with the balance consideration amount. Therefore, the averment in para 6 of the plaint that the plaintiff was and has been ever ready and willing to perform his part of the contract and that his readiness and willingness was intimated to the defendants directly and through mediators several times are all false, phony, preposterous and cooked up averments and hence denied by the defendants.”

                  The above averments considered in its entirety give sufficient indication that the defendant has put the plaintiff on notice challenging his readiness with balance consideration, to perform the contract.

13. Section 16(c) of the Specific Relief Act mandates the plaintiff to aver and prove his continued readiness and willingness to perform the agreement. It is an obligation imposed by the statute. In J.P.Builders v. A. Ramadas Rao [(2011)1 SCC 429], the Apex Court has held that independent of a challenge by the defendant, the plaintiff is bound to prove his readiness and willingness. It was held thus,

                  “It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16 (c) of the Specific Relief Act...”

                  J.P.Builders was referred to and relied on in Shenbagam & ors v. K.K.Rathinavel (2022 SCC OnLine SC 71), C.Haridasan v. Anappath Parakkattu Vasudeva Kurup & Ors (2023 SCC OnLine SC 36), and Sangita Sinha v. Bhawana Bhardwaj & Ors. (2025 SCC OnLine 723). In Mehboob-ur-Rehman v. Ahsanul Ghani [(2019) 19 SCC 415] it was held that, mere want of objection by the defendant in the written statement is hardly of any consequence. At any rate, we have already found the sufficiency of the defense plea.

14. To substantiate the availability of funds, the plaintiff relied on Exts.A12 to A17 documents. Those are statements or certificates from Banks, with regard to the amounts in deposit in the above accounts. Significantly, none of the said documents relate to the plaintiff. The plaintiff when examined as PW1, in his proof affidavit, has for the first time developed a case that his brother Ramakrishnan, brother's wife Parimala and his relative N. Mani are partners along with him as regards Ext.A1 agreement and that they had entered into Ext.A9 agreement in that regard. Exts.A12 to Ext.A17 are Bank statements/letters from Bank relating to them. There was no averment in the plaint that they were to provide money for the transaction. Neither the said Ramakrishnan, Parimala, nor Mani was examined. The documents remained unproved.

15. The Apex Court in U.N.Krishnamurthy (since deceased) through legal representatives v. A.M.Krishnamurthy [(2023) 11 SCC 775] held that, it is not necessary that the plaintiff in a suit for specific performance must jingle money in his pockets. It is sufficient if he has sufficient resources from which he can raise amounts in time. However, it was clarified that if the plaintiff intends to raise funds from other sources, that should be specifically pleaded in the plaint. Here though during the evidence stage the plaintiff has set up a case of partnership/joint venture and has produced Exts.A12 to A17 documents relating to third parties. There being no such plea, the said evidence is not liable to be considered. Further, even such documents would not establish availability of the entire balance consideration during the currency of Ext.A1.

16. Ext.A18 is a document dated 04.08.2017, issued by a Chartered Accountant. It is titled “Financial Statement”. Purportedly it relates to the plaintiff and his wife. The Chartered Accountant who issued the same is not examined. The document only mentions about the assets held by them as on 04.08.2017. The agreement was in the year 2011 the period of which expired on 10.04.2012. Even going by the plaintiff’s case, the period expired on 01.04.2015. The balance consideration payable under Ext.A1 is approximately 57 lakhs. Going by Ext.A18, the cash held by him at Bank and in hand together is, just above 6 lakhs. Therefore, Ext.A18 is of no assistance to the plaintiff. PW1 has in his cross-examination admitted that he is an income tax assessee and that he maintains accounts. Though production of the same would have proved his financial capacity during the relevant period, such a course is not attempted.

17. Further, while PW1 was cross-examined, he deposed that, as per Ext.A1 agreement the balance sale consideration was payable on 10.04.2012. He claimed that as on that date he had kept ready with him the required amount. According to him, portion of the amount was maintained in bank deposits and the remaining at his house. However, no document evidencing availability of funds in the Bank as on that date was produced. The source from which he raised amounts and kept at his home is also not brought out. This is also of relevance since, as admitted by PW1, he returned from Gulf in the year 2003 and presently he had no vocation. All the above show that his claim that he had the entire balance consideration available with him as on that date cannot be accepted.

18. The learned counsel for the appellant pointed out that, before the trial court, the appellant/plaintiff has expressed his readiness to deposit the entire balance sale consideration in Court. According to him, such conduct substantiated his readiness to perform Ext.A1. We find that such conduct cannot be of any avail to the plaintiff. It is for the reason that, the suit was filed only in the year 2015 and availability of funds with the plaintiff at that time is not of significance when it is alleged that Ext.A1 failed due to lack of readiness of the plaintiff. It is trite that, to seek for a decree for specific performance the plaintiff needs to prove his readiness and willingness from the date of the agreement till decree (Gomathinayagam Pillai v. Palaniswami Nadar [(1967) 1 SCR 227]). Readiness and willingness throughout the relevant period of time is to be established.

19. Placing reliance on the judgment of the Apex Court in Basavaraj v. Padmavathi & anr (AIR 2023 SC 282), the learned counsel for the appellant would argue that non-production of sufficient material by the appellant-plaintiff could not be looked upon as the failure on his part to prove his resources since the plaintiff was not called upon by the defendants or by the Court, to produce evidence in the said regard. We notice that in Basavaraj the Apex Court was dealing with the question of drawing an adverse inference against the plaintiff for non production of the pass book and it was held that since it was not called for, an adverse inference is not to be drawn against him. In the light of the discussions supra regarding the obligation of the plaintiff to prove his readiness and willingness, we find that the argument has no force. The defendants herein do not seek drawing adverse inference against the plaintiff. Their case is that the mandatory requisites for readiness and willingness have not been established by the plaintiff. That apart, here the plaintiff has ventured to produce materials which according to him would prove his resources, but was unsuccessful. The judgment relied on by the appellant has no application to the facts at hand.

20. Though in the plaint it is stated that the defendant was approached on various occasions requiring performance of the agreement, there is no evidence for the same. On the contrary, admittedly it was in March, 2015, that the plaintiff issued a notice to the defendants for the first time (Ext.A2).

21. On the above discussions we find that, the plaintiff failed to prove his readiness and willingness to perform the agreement. On such finding alone, the claim for specific performance is bound to fail.

22. Now we proceed to consider the claim of an alleged agreement extending the period of Ext.A1 up to 01.04.2015, i.e. for a period of three years from the date fixed in Ext.A1. Here it would be relevant to refer to the plaint averments. Paragraphs 10 and 11 of the plaint read thus:-

                  “10. It is further submitted that on 16.04.2012 the plaintiff had paid a sum of Rs.9,75,000/- (Rupees Nine Lakhs and Seventy Five Thousand only) more to the defendants and thus as on 16.04.2012 the total amount, which the defendants had taken from the plaintiff was Rs.34,75,000/- (Rupees Thirty Four lakhs and Seventy Five Thousand Only).”

                  “11. Though the plaintiff continued to remind the defendants an early eviction of the tenants after stopping the functioning of the Tuition Centre and Play School in the property, on all such occasions the defendants were prolonging the matter saying one or other personal, technical, flimsy reasons. It was in the circumstances in another round of mediation in the presence of mediators viz; Mammooty and K.D. Rajesh the defendants agreed to clear out the tenants in the property by 31.03.2015 and it was decided to pay the entire balance consideration on 01.04.2015 and to get the deed of conveyance/assignment executed in favour of the plaintiff or his nominees.”

                  At paragraph 10, the plaintiff mentions about the payment of an amount of ₹ 9,75,000/- on 16.04.2012, and at paragraph 11 the extension of period till 01.04.2015. However, contrary to what is stated at paragraph 11, PW1 in his cross-examination deposed that the extension was when the 2nd installment was paid, thus:-

                 

                  Further, regarding the mediation pleaded at paragraph 11 of the plaint, the date on which the alleged mediation was held and the agreement was arrived at, is not pleaded. Regarding what happened after 16.04.2012, all that the plaint says is that, the plaintiff continued to remind the defendants and the defendants were prolonging the matter. If the period of agreement was extended for three years from 16.04.2012, in all probabilities it would have been endorsed on Ext.A1. This is especially so since the payments were being endorsed.

23. Again, regarding the alleged extension, the witness cited to prove the same is PW2 who is claimed to be one of the mediators. However, PW2 even in his chief examination does not make any mention of the alleged extension for three years. On the contrary in his cross-examination he deposed thus:-

               

In further cross examination he deposed thus:-

                 

                  Therefore, the very case of the plaintiff with regard to extension of the period of Ext.A1 till 01.04.2015 fails. It is held accordingly.

24. According to the defendants, time was the essence of the contract. This is for the reason that, the property in question was put up for sale to raise amounts to meet the treatment expenses of Ayyappan, one of the sons of defendants 1 and 2. At paragraph 9 of the written statement it is pleaded thus:-

                  “9. In fact, the plaintiff has not paid the aforesaid amounts within the time stipulated as above. As a matter of fact, the plaintiff was aware and let known even before the agreement that the defendant's son Ayyappan, who is no more now, was middle aged at the time of entering into the sale agreement stated above, and was ill with cirrhosis of liver with portal hypertension and he was advised liver transplantation and was under costly medical treatment in various referral and local hospitals. His treatment required very huge expenses running to several lakhs and it is only because of this pressing need that the defendants decided to sell the property mentioned in schedule hereunder through broker Mammutty and terms were discussed between the plaintiff and the defendants. The plaintiff was all along aware of this and therefore both parties understood and contemplated strict adherence to the time schedule as essence of the contract.”

                  In Ext.A5 reply notice issued by the defendants to the suit notice, the very same fact was stated. When PW1 was cross examined about Ayyappan and his medical condition, he pleaded ignorance. He deposed thus:-

                 

                  However, in his cross-examination he would admit that he had met defendants 1 and 2 prior to Ext.A1 and that he knows the 3rd defendant, the other son of defendants 1 and 2, and also the brother of the second defendant. In the circumstances, it is quite improbable that the plaintiff was not aware about Ayyappan and his medical condition.

25. The learned counsel for the appellant-plaintiff would contend that the very fact that the defendants accepted payment of ₹ 9,75,000/- on 16.04.2012 i.e. after expiry of the period on 10.04.2012, by itself would indicate that the time was not the essence of the contract. When DW1 was cross-examined regarding her conduct in having accepted the payment after the last date fixed in Ext.A1, she deposed that the undertaking was that the entire amount would be paid within a week. Her deposition reads thus:-

                 

                  Ext.B3 series are the medical records relating to the treatment of Ayyappan. The documents reveal that Ayyappan was suffering from liver cirrhosis. Ext.B6 evidences that Ayyappan passed away on 25.06.2013.

26. The learned counsel for the respondent referred to the judgment of the Apex Court in K.S.Vaidyanadam & Ors. v. Vairavan (AIR 1997 SC 1751) in support of his contention that, even if time was not the essence of the contract, from the circumstances it could be brought out that the parties intended performance within a reasonable time, and it has relevance while exercising the discretion whether to grant specific performance. The Apex Court held,

                  “...Even if it is not of the essence of the contract, the court may infer that it is to be performed in a reasonable time if the conditions are (evident): (1) From the express terms of the contract, (2) from the nature of the property and (3) from the surrounding circumstances, for example, the object of making the contract.”. In other words, the court should look at all the relevant circumstances including the time-limits specified in the agreement and determine whether its discretion to grant specific performance should be exercised.”

27. The materials and circumstances noted above would indicate that the case of the plaintiff that the agreement was entered into for the purpose of raising money for the treatment of Ayyappan and time was of significance is quite probable.

28. The reason projected by the plaintiff for not having gone ahead with Ext.A1 agreement was that a tenant was occupying the premises. However, at paragraph 14 of the plaint he has pleaded that he is ready to get assignment of the property along with the tenancy arrangement after paying the entire balance consideration. The above is referred to, only to note that, it does not appear that the occupation of the premises by a tenant was the reason why the plaintiff did not go ahead with the transaction.

29. The above facts and circumstances justify the exercise discretion by the trial court, declining a decree for specific performance.

30. Though relying on Satya Jain (D) through LRs. & Ors v. Anis Ahmed Rushdie (D) through Lrs & Ors. (AIR 2013 SC 434) the learned counsel for the appellant sought for a decree for specific performance by enhancing the consideration consequent to passage of time and escalation in prices, in the light of the findings entered into by us, dis-entitling the plaintiff for a decree for specific performance, even consideration of the said question does not arise.

31. On the discussions and findings entered by us, we concur with the trial court in having declined a decree for specific performance.

32. Now coming to the alternate relief claimed for return of the advance sale consideration, the trial court directed to return only after deducting an amount of ₹ 9,75,000/- towards damages. We are unable to find any basis for the same. But for a vague plea that consequent on the non-performance of Ext.A1 the defendants had sustained damages, there is no proper plea or quantification lest, evidence. Having failed to prove any damages, the defendants are bound to return the entire advance amount paid. The defendants having enjoyed the benefits of the amounts are also liable to pay reasonable interest thereon. Considering the prevailing rate of interest, we find that grant of interest at the rate of 9% per annum on ₹ 34,75,000/- from 16.04.2012 till date of decree, and thereafter at 6% per annum would be just and reasonable.

33. Yet another contention urged by the learned counsel for the appellant is as follows: The first defendant had conveyed the property to the third defendant under Ext.A19. The third defendant is no more. The only plea available for such transferee is, one of being a bona fide purchaser for value without notice of the agreement, as provided for under Section 19 of the Specific Relief Act. We are unable to agree with the learned counsel. Section 19 only shields a bona fide purchaser of the property for value, who did not have notice of the subsisting agreement. It is protection against enforcement of the agreement as against him. It does not mean that the pleas available to the original owner (vendor) is not available to him. So also, Ext.A19 is a transfer pendente lite. Pendente lite transferee takes the property with all the rights and liabilities of his vendor. All that apart, Ext.A19 transfer was in violation of an interim order of injunction and void, and the property was conveyed back to the first defendant. The first defendant himself has filed a written statement by urging contentions. Hence, the argument is unsustainable in law and it does not arise on the facts of the case.

In the result, the appeal is allowed in part. The decree and judgment of the trial court will stand modified, granting decree for realisation of ₹ 34,75,000/- with interest at the rate of 9% per annum on the said amount from 16.04.2012 till date of decree, and thereafter at the rate of 6% per annum. The plaintiff shall be entitled for proportionate costs throughout.