Kerala High Court
Rajavally vs Jayalekshmi on 10 July, 2025
RFA. No.551/2011
1
2025:KER:50932
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
THURSDAY, THE 10TH DAY OF JULY 2025 / 19TH ASHADHA, 1947
RFA NO. 551 OF 2011
OS NO.58 OF 2009 OF THE PRINCIPAL SUB COURT, KOLLAM
APPELLANT/DEFENDANT
RAJAVALLY,D/O. KARTHAYANI, KALATHIL VEEDU,
MUTHUKULAM VILLAGE,, KARTHIKAPPALLY TALUK,
ALAPPUZHA DISTRICT.
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SHRI.S.ABHILASH
SMT.BINDU GEORGE
SHRI.PRATHEESH.P
SRI.K.SIJU
SRI.S.HARIKRISHNAN
RESPONDENT/PLAINTIFF
JAYALEKSHMI, D/O DRAUPATHI AMMA,
AGED 44 YEARS, RESIDING AT VIJAYADHANATHIL,,
NJAKKANAL, OACHIRA VILLAGE, KARUNAGAPPALLY TALUK,
PIN 691521
BY ADVS.
SHRI.LEO GEORGE
SRI.K.N.SASIDHARAN NAIR
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD
ON 27.6.2025, THE COURT ON 10.07.2025 DELIVERED THE
FOLLOWING:
RFA. No.551/2011
2
2025:KER:50932
JUDGMENT
Dated : 10th July, 2025 The defendant in OS No.58 of 2009 on the file of the Principle Sub Court, Kollam, is the appellant. (For the purpose of convenience the parties are hereafter referred to as per their rank before the trial court).
2. The plaintiff filed the above suit for specific performance of an agreement for sale entered into with the defendant on 25.8.2008. As per the above agreement (Exhibit A1), the defendant agreed to sell 14 cents of property to the plaintiff for a total consideration of Rs.2,13,500/- at the rate of Rs.15,250/- per cent. The period of agreement was three months. On the date of agreement itself, the plaintiff advanced a sum of Rs.25,000/- to the defendant. Thereafter, as demanded by the defendant, on 4.10.2005 the plaintiff advanced another Rs.75,000/- towards part of the sale consideration. The period of three months expired on 25.11.2008. According to the plaintiff, on 20.11.2008, she visited the defendant in her residence and during the negotiation the defendant extended the period of agreement by 15 days orally, up to 10.12.2008. Since there was no steps from the side of the defendant for performance of the agreement, on 5.12.2008, the plaintiff caused to issue Exhibit A2 lawyer's notice to the defendant, demanding to execute the sale deed in her favour after receiving the balance sale consideration. To the said notice, the defendant issued Exhibit A5 reply dated 29.12.2008 stating that since the period of agreement is over she is not liable to perform the contract. According to the plaintiff, the plaintiff was RFA. No.551/2011 3 2025:KER:50932 always ready and willing to perform her part of the agreement and that the sale deed could not be executed solely due to the default of the defendant.
3. In the written statement, the defendant admitted execution of Exhibit A1 sale agreement and receipt of a total sale consideration of Rs.1,00,000/-. According to the defendant, she was ready and willing to perform the contract within the period stipulated therein and that the plaintiff was not at all ready and willing to perform her part. The defendant also denied the averment in the plaint that on 20.11.2008 the plaintiff visited the defendant and at the instance of the defendant, the period of the agreement was orally extended till 10.12.2008. She also contended that on 25.11.2008, on the last day of Exhibit A1 she was present in the Sub Registrar's Office, Ochira expecting the plaintiff to execute the sale deed and in spite of that the plaintiff did not turn up. Therefore, according to the defendant the contract could not be performed due to the default of the plaintiff and as such she prayed for dismissing the suit.
4. The trial court framed three issues. The evidence in the case consists of the oral testimonies of PW1, PW2, DW1 and Exhibits A1 to A5, B1 and B2. After evaluating the evidence on record, the trial court decreed the suit for specific performance. Being aggrieved by the above judgment and decree of the trial court, the defendant preferred this appeal raising various contentions.
5. Now the points that arise for consideration are the following:
1) Whether the plaintiff was always ready and willing to perform RFA. No.551/2011 4 2025:KER:50932 her part of the contract, as claimed?
2) Whether the trial court has exercised the discretion under section 20 of the Specific Relief Act correctly?
3) Whether the impugned judgment and decree of the trial court calls for any interference, in the light of the grounds raised in the appeal?
6. Heard Sri.S.Sreekumar, the learned Senior counsel for the appellant assisted by Sri.S. Harikrishnan and Sri.Leo George on behalf of the respondent.
7. The points: In this case, the execution of Exhibit A1 agreement dated 25.8.2008 is admitted. The defendant also admits receipt of Rs.25000/- on the date of the execution of Exhibit A1, and another Rs.75000/- on 4.10.2008. As per the terms of Exhibit A1, the period of agreement was three months, which expired on 25.11.2008. In this case both parties accused each other for the non-performance of the sale agreement. While according to the plaintiff, she has always been ready and willing to perform her part of the agreement and the agreement could not be performed solely due to the default of the defendant, according to the defendant, the failure was on the part of the plaintiff.
8. Three months provided in Exhibit A1 expired on 25.11.2008. The specific case of the plaintiff is that, on 20.11.2008, before the expiry of Ext.A1 she went to the residence of the defendant and expressed her readiness and willingness to get the sale deed executed after paying the balance sale consideration. However, RFA. No.551/2011 5 2025:KER:50932 according to the plaintiff, at the instance of the defendant, the period of the agreement was orally extended by 15 days up to 10.12.2008. The above claim of the plaintiff was stoutly denied by the appellants. It is true that with regard to the extension of the period of agreement on 20.11.2008, there is no endorsement on Exhibit A1. According to the plaintiff, it was only an oral agreement made at the instance of the defendant. At the time of evidence, the defendant has taken a contention that on 20.11.2008, she was not in her residence and that she went to Nedumbassery Airport to see off her daughter. However, no such contention was taken by the defendant in her written statement. It is true that the defendant has produced the copy of the passport of her daughter and got it marked as Exhibit B1. Though it is revealed that her daughter is available in station, she was not examined to prove that the defendant accompanied her to the airport on 20.11.2008. There is also no evidence about the time at which the plaintiff went to the defendant's residence and the time at which the defendant went to airport.
9. On the other hand, during the cross examination of the plaintiff as PW1, the learned counsel for the defendant even suggested to her that on 20.11.2008, she deliberately visited the residence of the defendant as there was no positive steps from the side of the defendant. The above suggestion was admitted by PW1. Thereafter, another suggestion was also put to PW1 to the effect that on 20.11.2008, the plaintiff visited the residence of the defendant. No attempt was made during the re-examination to clarify those suggestions. In the absence of any such clarification, RFA. No.551/2011 6 2025:KER:50932 from the above suggestions made to PW1 during cross examination, it can be safely concluded that on 20.11.2008 the plaintiff actually visited the residence of the defendant.
10. In order to substantiate the bona fides as well as the readiness and willingness on the part of the plaintiff, the learned counsel has relied upon several circumstances. As per Exhibit A1, on the date of agreement Rs.25,000/- was advanced to the defendant. As per the agreement, the plaintiff needed to pay the balance sale consideration only at the time of execution of the sale deed. Even then, at the instance of the defendant, the plaintiff advanced another Rs.75,000/- to the defendant, on 4.10.2008. The defendant at the time of evidence admitted that the above Rs.75000/- was given to her by the plaintiff, as demanded by her.
11. As I have already noted above, the specific case of the plaintiff is that on 20.11.2008, she went to the residence of the defendant demanding execution of the sale agreement, but at the instance of the defendant the period of agreement was orally extended up to 10.12.2008. Though in the written statement the defendant stoutly denied the above claim raised by the plaintiff, during the course of examination of PW1, from the suggestion put to her, it is revealed that on 20.11.2008 the plaintiff visited the residence of the defendant. The above conduct of the plaintiff in visiting the defendant before the expiry of the period provided in Exhibit A1 also shows her bona fides as well as readiness and willingness to get the sale deed executed on payment of the balance sale consideration.
RFA. No.551/20117
2025:KER:50932
12. Though as per the oral agreement, the period of the contract was extended up to 10.12.2008, according to the plaintiff, since there was no positive steps from the side of the defendant, Exhibit A2 lawyer's notice was issued on 5.12.2008. Though Exhibit A2 lawyer's notice was received without much delay, the defendant instead of executing the sale deed forthwith, took her own time and finally sent Exhibit A5 reply notice dated 29.12.2008 declining specific performance. The only reason stated for declining specific performance is that the period of Ext.A1 already expired due to the default of the plaintiff. At the same time, on 25.11.2008 the defendant appeared before the Sub Registry and to prove the same, she became a witness to Ext.B1 document. However, the most interesting aspect is that she went to the SRO without informing the plaintiff. The conduct of the defendant in appearing before the Sub Registry on 25.11.2008, without informing the plaintiff and being a witness in Exhibit B1 document and at the same time when the plaintiff issued notice immediately thereafter expressing readiness and willingness to execute the sale deed refusing specific performance on the ground that the period already expired shows lack of bona fides on her part. Viewed from the above background, the conduct of the defendant in appearing before the Sub Registry without informing the plaintiff can only be to create evidence to show that she was ready and willing to perform the contract and at the same time, to avoid execution of sale deed by making it appear that the default was on the part of the plaintiff.
13. The above conduct of the defendant persuades me further to believe the RFA. No.551/2011 8 2025:KER:50932 evidence of PW1 that on 20.11.2008 she visited the residence of the defendant for getting the sale deed executed and on that day at the instance of the defendant the contract was orally extended for a period of 15 days. One cannot be blamed if it is suspected that even oral extension of the period of agreement for 15 days was to avoid execution of sale deed within the period of three months and thereafter to deny the same on the ground that the period expired.
14. On the other hand, the reason for the visit of the plaintiff to the residence of the defendant on 20.11.2008 can only be with the intention of demanding the defendant to execute the sale deed, as per the terms of Exhibit A1. The defendant has no case that on 20.11.2008, the plaintiff visited her residence for any other purpose. Instead, the contention taken by her is to show that the plaintiff did not visit her on 20.11.2008 and that she was also not present in the residence. However, from the suggestion put to PW1 during the cross examination, it is revealed that there is absolutely no merits in the above contention raised by the defendant that the plaintiff did not visit the defendant on 20.11.2008. In the above circumstance, the claim of the plaintiff that on 20.11.2008, at the instance of the defendant, the period of the agreement was orally extended by 15 days till 10.12.2008 is to be believed. In spite of that on 5.12.2008, the plaintiff caused to sent a lawyers notice to the defendant demanding performance of Exhibit A1. For the said notice, only on 29.12.2008 the defendant sent a reply denying specific performance alleging breach of contract by the plaintiff.
RFA. No.551/20119
2025:KER:50932
15. The learned counsel for the appellant would argue that even if it is found that the contract was breached by the defendant, the court is not bound to grant the relief of specific performance. According to the learned counsel, due to the efflux of time, the market value of the scheduled property has increased considerably and if specific performance is granted, the same will cause huge loss to the defendant and unjust enrichment to the plaintiff. On the other hand, the learned counsel for the plaintiff invited my attention to the evidence of the defendant as DW1, that because of the delay up to 5.12.2008, the date of issuance of Exhibit A2 notice, no loss was sustained to him.
16. The learned counsel for the appellant has relied upon the decision of a Division Bench of this Court in Antony K.O. and Another v. M.K. Krishnankutty Menoki and Others [2017 (1) KHC 479], to substantiate his argument that the court has to exercise its discretion not for granting the relief of specific performance, but for refusing the same. In the above decision it was further held that a decree which was granted without addressing and without exercising the discretion under section 20 of the Specific Relief Act is bad in law.
17. Section 20 of the Specific Relief Act dealing with discretion as to decreeing specific performance states as follows:
"20. Discretion as to decreeing specific performance.-- (1)The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by RFA. No.551/2011 10 2025:KER:50932 judicial principles and capable of correction by a court of appeal. (2)The following are cases in which the court may properly exercise discretion not to decree specific performance:--(a)where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b)where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.
Explanation 1.--Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).
Explanation 2.--The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.
(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.
(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party."
RFA. No.551/201111
2025:KER:50932
18. The learned counsel would argue that mere pleading regarding readiness and willingness to perform the contract is not enough and further, the plaintiff has to prove his financial capacity to pay the balance sale consideration and to get the sale deed executed. In support of the above argument, he has relied upon the decision of the Hon'ble Supreme Court in Krishnamurthy (since deceased) Thr. Mrs. U.N. v. A.M. Krishnamurthy [2022 KHC 6698], Venkatesh C.S. v. A.S.C Murthy (D) byLRs. And Others [2020 KHC 6123] and Ravindranath P. v. Sasikala [2024 KHC 6379]. In the decision in Krishnamurthy (supra), in paragraph 21 the Apex Court held:
"21. It is well settled that, in a suit for Specific Performance of an agreement, it is for the Plaintiff to prove his readiness and willingness to perform his obligations under the agreement. Where a certain amount has been paid in advance and the balance is required to be paid within a stipulated time, it is for the Plaintiff to show that he was in a position to pay the balance money. The Plaintiff has to prove that he has the money or has alternatively made necessary arrangements to get the money. In this case, the Original Defendant/Appellants have all along contended that the Plaintiff Respondent neither offered to pay nor was in a position to pay the balance consideration of Rs.15,00,000/- "
19. In paragraph 24, the Apex Court further held as follows:
"24. Section 16 (c) of the Specific Relief Act, 1963 bars the relief of specific performance of a contract in favour of a person, who fails to aver and prove his readiness and willingness to perform his part of contract. In view of Explanation (i) to clause (c) of Section 16, it may not be essential for the plaintiff to actually tender money to the defendant or to deposit RFA. No.551/2011 12 2025:KER:50932 money in Court, except when so directed by the Court, to prove readiness and willingness to perform the essential terms of a contract, which involves payment of money. However, explanation (ii) says the plaintiff must aver performance or readiness and willingness to perform the contract according to its true construction."
20. In the decision in Venkatesh C.S (supra), in paragraph 15, the Apex Court held that:
"15. The words 'ready and willing' imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract."
21. In the decision in Ravindranath P. (supra), the Apex Court reiterated the following observation from an earlier decision in U.N. Krishnamurthy (Since Deceased) Thr. Lrs. v. A.M. Krishnamurthy, 2022 SCC OnLine SC 840:
"46. It is settled law that for relief of specific performance, the Plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform the part of the contract. It is RFA. No.551/2011 13 2025:KER:50932 the bounden duty of the Plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice."
22. From the above decisions, it is clear that in order to get the discretionary relief of specific performance, the plaintiff has not only to plead the readiness and willingness all along the period of contract, but also has to prove her readiness and willingness by adducing evidence. It is also evident that even if it is found that the breach was on the part of the defendant, the Court is not bound to grant the relief of specific performance, if return of advance amount will do justice to the plaintiff.
23. In this case, from the evidence of the defendant itself, it is revealed that she had a total extent of 30 cents of property and the plaintiff originally wanted to purchase the entire 30 cents. However, at that time, mutation in respect of 10 cents was not effected in her favour and that is why initially sale deed was executed only in respect of 16 cents. After purchasing the above 16 cents of property, the plaintiff constructed a residential building and residing therein. The remaining 14 cents involved in this case situates on the north and east of the residential plot referred above. Therefore, according to the plaintiff, purchase of the plaint schedule property is necessary for the beneficial enjoyment of the 16 cents already purchased by her. The learned counsel for the appellant would argue that, with respect to 10 cents alone mutation was not effected and for the remaining four cents, there was mutation and in spite of that the plaintiff has not purchased the above four cents along with the 16 RFA. No.551/2011 14 2025:KER:50932 cents. Therefore, it was argued that purchase of the plaint schedule property was not a necessity to the plaintiff for the beneficial enjoyment of the property already purchased and it is only a desire and as such this court is not bound to grant specific performance in favour of the plaintiff.
24. On the other hand, as I have already noted above, from the evidence of the defendant itself it is revealed that the idea of the plaintiff was to purchase the entire 30 cents and only because mutation was not effected over 10 cents, entire 30 cents could not be purchased at the beginning. Immediately after the mutation was effected in respect of the remaining ten cents, Exhibit A1 sale agreement was executed. Even from the evidence of DW1, it is revealed that the plaint schedule property situates on the immediate north and east of the property already purchased by the plaintiff and therefore, it can be seen that there is merit in the case of the plaintiff that the plaintiff agreed to purchase the plaint schedule property as it is abutting the 16 cents she already purchased from the defendant. Therefore, there is merit in the argument of the plaintiff that the plaint schedule property was agreed to be purchased for the beneficial enjoyment of the 16 cents already in her possession.
25. Though the learned counsel has argued that because of the efflux of time, the value of the property has increased considerably, there is no evidence to prove the same. On the other hand, from the evidence on record, it is revealed that out of the total sale consideration of Rs.2,13,500/-, Rs.1,00,000/- was paid by the plaintiffs to the defendant by 4.10.2008, ie, within 11/2 months from the date of the agreement. It RFA. No.551/2011 15 2025:KER:50932 means, a considerable portion of the sale consideration was paid by the plaintiff to the defendant immediately after the execution of Exhibit A1. Further, it is revealed that after the decree, the plaintiff has deposited the entire balance sale consideration before the trial court.
26. Though the period of Ext.A1 is 3 months, even before the expiry of three months provided in Exhibit A1, the plaintiff approached the defendant on 20.11.2008 demanding execution of the sale agreement. On the other hand, though the period of agreement was orally extended by 15 days up to 10.12.2008, the defendant went to the Sub Registry on 25.11.2008 without informing the plaintiff and stood herself as a witness in Exhibit B1 document. The conduct of the plaintiff in personally contacting the defendant on 20.11.2008 and issuing Exhibit A2 lawyer's notice on 5.12.2008 assumes significance in this context, to show her readiness and willingness to get the sale deed executed after paying the balance sale consideration. Exhibit A2 lawyer's notice is seen issued within ten days of the expiry of Exhibit B1 and five days before the expiry of the period orally extended between the parties. Even then, instead of performing the contract, the defendant waited till 29.12.2008 and sent a reply denying specific performance alleging default on the part of the plaintiff.
27. During the cross examination of DW1, she admitted that because of the delay in performing Exhibit A1, till 5.12.2008, there was no loss to her. Though subsequently, she tried to wriggle out from the above admission and claimed that she sustained loss, she could not explain the manner in which she sustained any such RFA. No.551/2011 16 2025:KER:50932 loss. Generally, as far as immovable property is concerned, time is not essence of the contract. In this case, there was no default on the part of the plaintiff as she was always ready and willing to perform her part of the contract. Even before the expiry of Exhibit A1 she personally contacted the defendant and at that time it was at the instance of the defendant, the period was orally extended. Thereafter, when the plaintiff approached her for specific performance even before the expiry of the extended period, the defendant refused to execute the sale deed saying that the period has already expired. Since the defendant herself admitted that because of the delay of ten days, till 5.10.2008, she has not sustained any loss, there was absolutely no justification for the defendant not to perform Exhibit A1 as demanded in Exhibit A2 lawyer's notice.
28. In this context, it is also to be noted that as per the terms of Exhibit A1, before the execution of the sale deed, the defendant had to measure the property and convince the extent of the property to the plaintiff. Further, the defendant had to convince that there was no encumbrance over the scheduled property. Admittedly, no such attempt was made from the side of the defendant to measure and convince the extent of the property and to show that there was no encumbrance over the property, before the execution of the sale deed.
29. At the time of arguments, the learned counsel for the defendant attempted to show that when the plaintiff purchased the first 16 cents of property from the defendant, the entire 30 cents was measured and encumbrance over the said property RFA. No.551/2011 17 2025:KER:50932 was also verified and therefore, there was no necessity to measure the property again and convince that there is no encumbrance over the property. However, it is revealed from the evidence of DW1 itself that from the 30 cents belonged to her, some portion was taken for widening the adjacent road. Therefore, it is evident that the plaintiff was not in possession of the entire 30 cents when the previous sale deed was executed. Though in Exhibit A1, it is stated as 14 cents, and the sale consideration is shown as Rs.2,13,500/-, the centage value of the property shown was Rs.15,250/-. Therefore, the measurement of the property to ascertain its extent and to ascertain whether there is any encumbrance over the property are necessary before the execution of the sale deed. It was in the above context, such conditions were stipulated in Exhibit A1. Further, it is to be ascertained whether there is any shortage in the extent of the property. Since it is revealed that the defendant has not taken any steps to measure the property to convince the extent and to show that the property is free from encumbrance, it is to be held that the default was on the part of the defendant and there was absolutely no default or breach on the part of the plaintiff.
30. During the cross examination of the defendant, she claimed that the property was measured earlier when the plaintiff purchased the 16 cents of property and also subsequently after the execution of Exhibit A1. However, she has not produced the sketch showing the extent of the property available for sale. During the cross examination when questions were asked about the same, she pleaded ignorance and stated that everything was done by her husband and that she does not know the RFA. No.551/2011 18 2025:KER:50932 details. It is interesting to note that the husband of the defendant was not examined to prove that the defendant has complied the requirements stipulated in Exhibit A1 before the execution of sale deed. The learned counsel would argue that the plaintiff herself is a Village Officer and as such there was no necessity on the part of the defendant to convince that there is no encumbrance over the schedule property. It is true that at the time of evidence, it is revealed that the plaintiff is a Village Officer by profession. However, in Exhibit A1 there is specific clause to the effect that before the execution of the sale deed, the defendant has to measure and convince the extent of the property and also show that there was no encumbrance over the schedule property. Therefore, for the mere reason that the plaintiff was a Village Officer, the defendant cannot contend that she is not bound by the terms of Exhibit A1 agreement.
31. Similarly, it was admitted by the defendant that she had not handed over or shown her original title deed for the purpose of preparing the draft sale deed and to prove that the scheduled property is not encumbered with any financial institution. At the same time, from the conduct of the plaintiff it can be seen that even before the expiry of the period provided in Exhibit A1, she had advanced considerable portion of the sale consideration to the defendant and approached the defendant before the expiry of the period in Exhibit A1 expressing her readiness and willingness to get the sale deed executed and it was postponed only at the instance of the defendant. Immediately thereafter, the plaintiff issued Exhibit A2 lawyer's notice RFA. No.551/2011 19 2025:KER:50932 requesting the defendant to execute the sale deed. In spite of the receipt of the notice, it was the defendant who refused to perform the contract. Thereafter, without delay, the plaintiff filed the suit seeking specific performance.
32. In the plaint, the plaintiff has specifically pleaded that she has always been ready and willing to perform her part of the contract by paying the balance sale consideration. It is true that the plaintiff has not adduced any positive evidence to prove that she was in actual possession of the balance sale consideration or that she has made any arrangements with anybody for the balance sale consideration. However, from the conduct of the plaintiff in advancing Rs.75,000/- before the time stipulated in Exhibit A1 for payment of balance amount, in addition to the advance already paid at the time of execution of Ext.A1, personally approaching the defendant even before the expiry of the period in Exhibit A1 expressing her readiness and willingness to perform the contract, issuing Ext.A2 notice demanding specific performance and filing the suit immediately after the defendant refused to execute the sale deed by sending Exhibit A3 reply notice etc. clearly shows the readiness and willingness on the part of the plaintiff in performing her part of the contract. In Ext.A2 notice, in the plaint and in the proof affidavit the plaintiff has specifically stated that she was always ready and willing to perform her part of the contract and it was not challenged by the defendant. In this case the defendant has no case that the plaintiff was not in possession of the required amount for paying the balance sale consideration. During the cross examination of the plaintiff also, her evidence to the RFA. No.551/2011 20 2025:KER:50932 effect that she was always ready and willing to pay the balance sale consideration and to get the sale deed executed, was not challenged. Therefore, from the above conduct of the plaintiff and also from the evidence adduced in this case, it can be safely concluded that plaintiff was always ready and willing to perform her part of the contract and she had also the financial capacity to pay the balance sale consideration.
33. Even from the evidence of DW1 it is revealed that from the very beginning, the plaintiff had the intention to purchase the entire 30 cents from the defendant and only because the defendant had not mutated 10 cents of property, at first, 16 cents was assigned in favour of the plaintiff. Thereafter, immediately after the mutation was effected, Exhibit A1 sale agreement was executed. It is also revealed that in the property already purchased by the plaintiff she had constructed a residential building and the plaint schedule property situates on its immediate east and north. Therefore, it is evident that the plaintiff agreed to purchase the plaint schedule property so as to enjoy the same along with the 16 cents already purchased from the defendant.
34. Since the defendant has received considerable portion of the sale consideration immediately after the agreement and was always ready and willing to perform her part of the contract, while it could not be performed solely due to the default of the defendant, denial of specific performance will cause more prejudice to the plaintiff. If specific performance is denied, the plaintiff will be put to much RFA. No.551/2011 21 2025:KER:50932 hardships and inconvenience. Since the plaintiff has already paid considerable portion of the sale consideration immediately on execution of Exhibit A1 and deposited the entire balance consideration immediately after the decree, increase in the value of the plaint schedule property, if any, has no relevance in the facts of this case. Moreover, as I have already noted above in this case, there is no positive evidence to prove that the value of the schedule property has increased considerably as now claimed. Therefore, it is to be held that the trial court has exercised the discretion in favour of granting specific performance after evaluating the evidence on record in the correct perspective. In other words, I do not find any irregularity or illegality in the impugned judgment and decree of the trial court so as to call for any interference. Points answered accordingly.
35. In the result, this appeal is dismissed. Considering the facts, I order no costs.
All pending interlocutory applications shall stand closed.
Sd/-
C. PRATHEEP KUMAR, JUDGE sou.