(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, as against the Judgment and Decree of the learned Additional District and Sessions Judge cum Fast Track Court No.V, Tiruppur in A.S.No.95 of 2008 dated 10.01.2011 confirming the Judgment and Decree of the learned Subordinate Judge, Udumalpet in O.S.No.40 of 2000 dated 28.02.2006.)

1. The Second appeal has been preferred as against the decree and judgment passed by the Additional District and Sessions Judge cum Fast Track Court No.V, Tiruppur in A.S.No.95 of 2008 dated 10.01.2011. The appellant herein is the defendant in the main Suit and the deceased 1st respondent herein, being the Plaintiff has filed in O.S. No.40 of 2000 on the file of the Subordinate Judge, Udumalpet for the relief of specific performance of contract and the same was decreed. Aggrieved by the said decree and judgment passed by the trial Court, the defendant has preferred an appeal before the First Appellate Court and the said appeal was dismissed by confirming the judgment and decree passed by the trial Court. Aggrieved the said decree and judgment, the present second appeal has been filed.

2. The case of the Plaintiff before the trial Court is that the Plaintiff and the defendant had entered into an agreement dated 11.02.1997 in respect of the sale of property, belongs to the defendant and the sale price was fixed at Rs.2,10,000/- and on the date of agreement itself, a sum of Rs.2 lakhs was paid agreeing that the remaining amount has to be paid within 6 months. When the Plaintiff was ready and willing to perform his part of contract, the defendant was evading from executing the Sale Deed. Thereby, the Plaintiff issued a notice dated 15.12.1999 stating that he is ready and willing to perform his part of contract and will be waiting at the Registrar Office on 19.01.2000 and the said notice was received by the defendant and she has issued a reply notice dated 22.12.1999 with false averments, thereby, the Plaintiff has filed a Suit.

3. The brief averments of the written statement filed by the defendant are as follows:

The Suit is not maintainable and the same is liable to be dismissed. The allegation that the Plaintiff and the defendant entered into an agreement dated 11.02.1997 in respect of the sale of property and the sale price was fixed at Rs.2,10,000/- and on the date of entering into a Sale Agreement itself, a sum of Rs.2 lakhs was paid and 6 months time was fixed for paying the remaining amount are all denied as false. In fact, the family of both the Plaintiff and defendant are neighbours. The husband of the defendant is the friend of the Plaintiff. For income tax purpose, the Plaintiff asked the defendant to execute an agreement in his favour. Thereby, the defendant had executed an agreement and the same is a sham and nominal. No agreement was executed for the purpose of sale of the property. The Plaintiff has not taken any steps within the said 6 months. The above said conduct of the Plaintiff itself shows that she has no any intention in the sale of the property. The Plaintiff is residing in the Suit property by constructing a house by mortgaging the property to one Kesavan. The alleged sale agreement was entered into between the parties only for the purpose of income tax. Therefore, the Suit is liable to be dismissed.

4. Based on the above said pleadings and after hearing both sides, the trial court has framed the following issues for trial:-

                   Issues:

                   1. Whether the Plaintiff is entitled to a decree for specific performance of contract?

                   2.To what other reliefs, the Plaintiff is entitled to?

5. Before the trial court, on the side of the plaintiffs, witnesses P.W.1 to PW3 were examined and marked exhibits, Exs.A.1 to A.6. On the side of the defendants, witnesses D.W.1 to DW3 were examined and marked exhibits, Exs.B.1 and B2. Ex.C.1 was also marked. The trial court after considering the evidences adduced on both sides and perusing the records, decreed the Suit. Aggrieved by the said decree and judgment, the defendant has preferred an appeal before the First Appellate Court in A.S. No.95 of 2008 on the file of Additional District and Sessions Judge cum Fast Track Court No.V, Tiruppur on various grounds.

                   5.1. The First Appellate Court has framed the following points for determination:

                   (i)Whether the agreement dated 11.02.1997 was executed between the parties?

                   (ii) Whether the executed agreement was sham and nominal?

                   (iii) Whether the contention of the respondent that the Plaintiff was not always ready and willing to perform his part of contract?

                   (iv) Whether the contention of the Plaintiff that Ex.A1 is true and the Plaintiff is entitled to a decree for specific performance of contract?

                   (v) Whether the appeal is liable to be allowed?

6. After hearing both sides and perusing the records, the First Appellate Court also dismissed the appeal by confirming the judgment and decree passed by the trial Court. Aggrieved by the said decree and judgment, the present second appeal has been preferred by the appellant / defendant.

7. This Court, at the time of admitting the second appeal, formulated the following Substantial Question of Law.:-

                   1. Whether the Courts are justified in having it decisions by granting discretionary relief of specific performance?

                   2. Are not the Courts below committed miscarriage of justice in granting discretionary relief of specific performance when the Plaintiff approached the Court after delay of 2 years 10 months at the fag end of limitation period?

                   3. Whether the Courts below are right in granting decree for specific performance when the Plaintiff had not complied with conditions as contemplated under Section 16(c) of the Specific Relief Act?

8. For the sake of convenience and brevity, the parties herein are referred as plaintiffs and defendants, as referred before the trial Court.

9. The learned counsel appearing for the appellant would submit that the appellant is the owner of the Suit property and she is the defendant in the main Suit. The Plaintiff is the friend of the defendant’s husband. Both are neighbours. While so, the Plaintiff filed a Suit for specific performance of contract stating that the defendant, entered into an agreement with the Plaintiff, to sell her property for a sum of Rs.2,10,000/- and executed an agreement dated 11.02.1997 and on the date of agreement itself, a sum of Rs.2 lakhs was paid by the Plaintiff towards advance and the remaining amount has to be paid within 6 months. In fact, the execution of said agreement was not at all intended to sell the property. The Plaintiff requested the defendant to execute a sham and nominal agreement, for the purpose of income tax. Thereby, she executed the said agreement. Though the time was fixed as six months for payment of remaining amount, the Plaintiff did not take any steps till the fag end of the limitation period. The above said conduct of the Plaintiff shows that the above said agreement is not at all intended to sell the property. The Plaintiff has failed to prove that he was always ready and willing to perform his part of contract. The defendant, in order to prove her case, has examined the witnesses D.W.1 to DW3 and marked exhibits, Exs.B.1 and B2. On the side of the Plaintiff, P.W.1 to PW3 were examined and marked exhibits, Exs.A.1 to A.6. The Courts below have only relied upon the Plaintiff’s side evidences and they have not appreciated the evidences adduced on the side of the defendant and erroneously came to the conclusion that the agreement was executed for selling the property and thereby decreed the Suit for specific performance of contract. In fact, the Courts below failed to consider that the Plaintiff failed to prove his readiness and willingness and there are no issues framed in respect of the readiness and willingness. Thereby, the Courts below have rendered perverse findings without framing proper issues. Further, the Plaintiff has not taken any steps for the past 2 years and 10 months and failed to prove his readiness and willingness. Therefore, he is not entitled to the relief of specific performance of contract. Therefore, the Courts below have rendered erroneous and perverse findings and the judgments and decree passed by the Courts below are liable to be set aside by allowing the second appeal.

10. The learned counsel appearing for the respondents would submit that the Plaintiff had entered into an agreement for sale of a property with the defendant, who is the owner of the property and she also admitted the execution of the agreement. While so, it is the duty of the appellant / defendant to prove that the execution of the said agreement was not intended for sale of the property and it was executed for the purpose of income tax. In order to prove the said contention, no proper evidence was adduced by the appellant / defendant. Whereas the Plaintiff, through the witnesses examined from PW1 to PW3 and the documents marked from Ex.A.1 to Ex.A.6, has categorically proved the execution of the agreement and passing of sale consideration, thereby, the Courts below have correctly decreed the Suit and both the Courts have rendered concurrent findings based on the evidences and the said concurrent findings need not be disturbed. There is no perversity or illegality in the findings rendered by the Courts below. Therefore, there is no necessity to interfere with the judgments and decree passed by the Courts below and the second appeal is liable to be dismissed.

11. This Court heard both sides and perused the entire materials available.

12. In this case, it is an admitted fact that the appellant / defendant is the owner of the property. According to the Plaintiff, the defendant intended to sell her property and thereby, the Plaintiff had entered into a Sale Agreement dated 11.02.1997 with the defendant and the sale price was fixed at Rs.2,10,000/- and on the date of agreement itself, the Plaintiff paid an advance sale consideration amount of Rs.2 lakhs and agreed to pay the remaining amount of Rs.10,000/- within a period of 6 months. The defendant also has not denied the execution of the said agreement. Whereas her contention is that the said agreement was not at all executed for the purpose of sale of property and it was executed only for the purpose of income tax. Since the defendant admitted the execution of agreement, it is her duty to prove that the said agreement was not executed for the purpose of sale and it was executed only for the purpose of income tax. The evidences adduced by the defendant are not sufficient to hold that the agreement was executed for income tax purpose. However the Plaintiff, who filed the Suit for specific performance of contract, has to plead and prove that he was always ready and willing to perform his part of contract.

13. In this case, the alleged date of agreement is 11.02.1997. Time for completion of contract was 6 months from the date of the said agreement. Whereas the Plaintiff did not take any steps to get the Sale Deed executed in his favour and he has only issued a notice after a long gap i.e., on 15.12.1999. There is no explanation as to why, he had not taken any steps immediately after the lapse of period mentioned in the agreement. Therefore, the above said conduct of the Plaintiff for not taking any step to get the sale deed executed in his favour, for more than 2 years and 10 months, shows that he was not ready and willing to perform his part of contract.

14. As far as the ‘Suit for specific performance of contract’ is concerned, the readiness and willingness plays a vital role and the Plaintiff has always to be ready to get the sale deed executed in his favour from the date of agreement till the date of execution of sale deed. In this case, the readiness and willingness is absent. The Plaintiff has to plead and prove the readiness and willingness. The conduct of the Plaintiff in non-taking any steps to get the Sale Deed for the past 2 years and 10 months, shows that the he was not ready and willing to perform his part of contract and he has filed the Suit only at the fag end of the limitation period. Thereby, the Plaintiff failed to prove his readiness and willingness, which is a very essential requirement to order for specific performance of contract. However, the Courts below have not even framed issues in respect of readiness and willingness and not appreciated the evidences and discussed in that regard in a proper perspective manner. Without framing proper issues and appreciating the evidences and ignoring the lapse of 2 years and 10 months delay in sending notice, the Courts below have rendered findings that the Plaintiff was always ready and willing to perform his part of contract and decreed the Suit. The above said findings of the Courts below are perverse.

15. The learned counsel appearing for the respondents has relied upon the following judgments:

                   (i) A. Shahul Hameed v. N. Malligarjuna and ors reported in 2026 LiveLaw (SC) 604.

                   (ii) Mohammed Khaleel (D) through Lrs & Ors v. Jayamma in Civil Appeal No.2187 of 2011.

On a careful perusal of the above said judgments, it is clear that readiness and willingness must be gathered from the entirety of facts and circumstances, including the overall conduct of parties and it is not a theoretical requirement, payment of a substantial portion of the sale consideration can be a significant indicator of the plaintiff’s readiness. It is also clear that merely because another possible view may arise from the same material on record does not justify interference under Section 100 C.P.C. and the Courts need not interfere with the concurrent findings of fact unless such findings are shown to be perverse, based on no evidence, or suffering from material illegality or misreading of evidence. In the case on hand, the Courts below failed to consider that the Plaintiff failed to prove his readiness and willingness, which is very much essential to grant a decree for specific performance of contract and the Courts below have not even framed issues in that regard, and failed to consider the delay in filing the Suit and thereby, rendered perverse findings without any evidence in respect of readiness and willingness and rendered findings on misreading of evidence. Therefore, the above said case-laws, relied upon by the learned counsel appearing for the respondents, are noway helpful to decide the casein their favour.

16. As far as the substantial questions of law are concerned, this Court already in the previous paras, discussed about the conduct of the Plaintiff and entitlement of reliefs. It is well settled law that the specific performance of contract is discretionary relief and the Plaintiff has to plead and prove that he was always ready and willing to perform his part of contract. The date of agreement is 11.02.1997. The time fixed for completion of contract by paying the remaining sale consideration is 6 months. The Plaintiff has not taken any steps immediately after a lapse of period of agreement and he has only issued notice dated 15.12.1999, which is after 2 years and 10 months and the Suit has been filed at the fag end of the limitation period ie., on 21.02.2000. Thereby, the Plaintiff failed to prove his readiness and willingness and failed to comply the conditions contemplated under Section 16(c) of the Specific Relief Act. However, the Courts below granted decree on perverse findings. Therefore, the judgments and decrees passed by the Courts below are unsustainable and the substantial questions of law are answered in favour of the appellant and as against the respondents.

17. In view of the above discussions and the answer to the substantial questions of law, this Court is of the opinion that the judgment and decree passed by the trial Court in O.S.No.40 of 2000 dated 28.02.2006 on the file of the Subordinate Judge, Udumalpet, confirmed by the Additional District and Sessions Judge cum Fast Track Court No.V, Tiruppur vide judgment and decree passed in A.S.No.95 of 2008 dated 10.01.2011, are liable to be set aside.

18. Accordingly, Second Appeal stands Allowed. The judgment and decree passed by the trial Court in O.S.No.40 of 2000 dated 28.02.2006 on the file of the Subordinate Judge, Udumalpet and the judgment and decee passed by the First Appellate Court i.e., Additional District and Sessions Judge cum Fast Track Court No.V, Tiruppur in A.S.No.95 of 2008 dated 10.01.2011, are set aside and the Suit in O.S. No.40 of 2000 is dismissed. There shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.