- (1.) Leave granted.
(2.) The unsuccessful defendant is the appellant before us. The respondent herein filed a suit for specific performance or in the alternative for damages. All the three courts below, on a consideration of the entire materials placed, both oral and documentary, decreed the suit for specific performance. Before us, Mr. Amar Vivek, learned counsel for the appellants argued that in the absence of pleadings to readiness and willingness to execute a sale deed; the suit for specific performance of an agreement cannot be decreed. We have carefully gone through the judgments rendered by the three courts below. The High Court on a consideration of the entire material placed before it was of the view that no interference was called for in the second appeal.
(3.) The learned counsel for the appellant at the time of hearing, placed reliance on Sec. 16 of the Specific Relief Act. In order of appreciate the rival submissions, Sec. 16(c) needs to be quoted along with explanation. The same reads as follows : "16. Personal bars to relief:- * * * (a)-(b) * (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance which has been prevented or waived by the defendant. Explanation-For the purposes of clause (c)- (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.";