Plaintiff is the appellant. The averments in the amended plaint are briefly as follows: The first defendant is the owner of the suit property having purchased the same on 8-8-1955. One A.X Devadoss, power of Attorney of the first defendant entered into an agreement with the plaintiff on 4-4-1980 for the sale of the suit house for a price of Rs. 30,000/-. A sum of Rs. 10,000/- was paid on the same date. The agreement provided, inter alia, that the registration should be completed before 31-5-1980 by paying Rs. 5,000/- to the Power of Attorney and the balance is to be paid directly to the first defendant or her husband or children or to someone who is specially empowered by the first defendant to receive the same. The plaintiff was also put in possession of the property. The Power of Attorney who agreed to produce the title deeds and the encumbrance certificate sought for extension of time for completion of the sale deed, even though the plaintiff was ready to pay Rs. 5,000/- and conclude the sale. The Power of Attorney has subsequently issued a notice on 21-1-1981 stating that he was ready to execute the sale deed. But the notice is silent with regard to the availability of the title deeds and encumbrance certificate for perusal by the plaintiff. The plaintiff sent a suitable reply and the Power of Attorney has sent a rejoinder also. The power of Attorney showed certain documents to the plaintiff, but not the title deeds or the encumbrance certificate. Notices were exchanged between the plaintiff and the Power of Attorney. The plaintiff was served with a notice on 18-2-1981 stating that the property has been sold to the second defendant for Rs. 34,000/- and calling upon him to vacate. The plaintiff has sent a reply. The plaintiff prays for a decree for specific performance of the agreement for sale or in the alternative for recovery of a sum of Rs. 10,000/- paid as advance.

2. Even though the Power of Attorney has filed a written statement, since he was given up his written statement is not given.

3. The first defendant in her written statement contends as follows: Under the Power of Attorney dt. 17-2-78 Devadoss was given the power to look after the house and to sell the property. It was not a general Power of Attorney. Devadoss had no authority to enter into any agreement for sale. The agreement for sale was vague and indefinite to admit specific performance in a Court of law. The first defendant is not bound by any undertaking given by her agent. When the property has been sold in favour of the second defendant, power given to Devadoss had also come to an end. The plaintiff had no money to complete the sale transaction. Devadoss reminded him by a notice dated 21-1-1981 and a grace period of ten days was also given to complete the transaction. The second defendant has filed RCOP 28 of 1981 before the Rent Controller, Karaikkal against the plaintiff. The suit is counterblast to the said application. The plaintiff has committed default and therefore not entitled to any relief. The suit is liable to be dismissed. The second defendant, in her written statement, has stated that she is a bonafide purchaser for value.

4. The trial court on the basis of the above pleadings after trial has rendered the judgement granting the relief prayed for by the plaintiff for direction to pay a sum of Rs. 10,000/- to the plaintiff. The claim in the suit for specific performance was dismissed by the trial court. Aggrieved over the same, the plaintiff has come forward with this appeal.

5. The appellant-plaintiff has filed the suit for specific performance of an agreement of sale which he had entered into with the Power of Attorney of the first defendant for purchasing the suit property for a sum of Rs. 30,000/-. The plaintiff has claimed that even though he was ready and willing to purchase the property, the Power of Attorney of the first defendant viz., Devadoss who had agreed to get a special power of attorney and produce the title deeds and nil encumbrance certificate of the property, has not complied with his said assurance and it was on account of the same, the transaction could not be completed as contemplated under Ex. A-2. Ex. A-2 provides that Devadoss has received Rs. 10,000/- as advance from the plaintiff who was residing in the suit property itself, as advance out of the sale consideration of Rs. 30,000/-. It also provides that Rs. 5,000/- is to be paid on or before 31-5-1980 and the balance of Rs. 15,000/- is to be paid by the plaintiff either to the first defendant or to her son or to any one of their heirs either in person or through the Power of Attorney of the 1st defendant in their favour within six months. The case of the plaintiff that in pursuance of the agreement, he was put in possession of the property and the agreement was also part performed as contemplated under Section 53A of the Transfer of Property Act, has to be negatived, since the very recitals in the agreement provides that the plaintiff was already in occupation of the suit property and his contention that he was put in possession in pursuance of their agreement cannot be true. It shows that the plaintiff has not come to Court with clean hands.

6. The learned counsel appearing for the appellant would argue that Devadoss has not produced the Power of Attorney and the Nil encumbrance certificate as agreed by him and the agreement could not be completed only on account of the same. The learned counsel has also argued that neither the first defendant nor Devadoss have given evidence denying that there was no such agreement and therefore it must be held that it was only on account, of the failure of Devadoss to produce the document and encumbrance certificate, the sale deed could not be executed. The learned counsel has also drawn the attention of this Court to the evidence of P.W 1 wherein he has stated that he was having the balance of sale consideration and was asking Devadoss to conclude the sale for which Devadoss was stating from time to time that the Power of Attorney and encumbrance certificate had not been received and while so, he had received from Devadoss under Ex. A-3 calling upon him to complete the transaction. During cross examination, the plaintiff has admitted that there is no recital with regard to the handing over possession of the house by Devadoss to him and it would show that our earlier conclusion that possession was not at all delivered to the plaintiff in pursuance of the agreement under Ex. A-2 gets confirmed. It is also admitted by P.W 1 that there is no recital in Ex. A-2 that Devadoss would produce the title deed of the house of the first defendant and also the Encumbrance Certificate. A reading of the agreement under Ex. A-2 also reveals that there is no such stipulation in the agreement that the power of attorney of the first defendant has to produce the title deed as well as encumbrance certificate after receiving Rs. 10,000/- as advance from the plaintiff. It is highly improbable that the plaintiff has parted with Rs. 10,000/- even before he was satisfied with the title of the vendor. The version of the plaintiff that it was only on account of the failure of Devadoss to produce the title deed and encumbrance certificate, the sale could not be completed, appears to be a ground taken by the plaintiff to explain the laches on his part. In other words, that he has put forward a false case is seen from the above recital.

7. It is a recognised principle of law as laid down in various decisions that continuous readiness and willingness on the part of the plaintiff from date of contract to date of hearing to perform his part of the contract, is necessary and failure to make good the averment brings the inevitable dismissal of the suit. ((Vide-Pushparani Shanmughasundaram and two others v. Pauline Manonmani James and 5 others (1993-1-L.W. 219). It is laid down in the decision reported in Rahat Jan v. Mohammad Usman (A.I.R 1983 Allahabad page 343) as follows:

“Section 16(c) of the Specific Relief Act 1963 contains a mandatory provision, according to which no relief for specific performance of the contract can be enforced in favour of a person 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. Explanation to this section, further, lays down that the plaintiff should aver and prove his readiness and willingness to perform his part of the contract according to its true construction. Readiness and willingness to perform his part of the contract is to be judged on the true construction of the agreement. The plaintiff cannot add any additional condition for the performance of his part of the contract. The readiness of the plaintiff must be in relation to the real agreement between the parties.”

The same view has been expressed by a Division Bench of our High Court also in the decision reported in S. Sankaran v. N.G. Radhakrishnan (1994-2-L.W. 642) wherein it has been held that the agreement for which readiness and willingness is pleaded, must be the agreement that is sought to be implemented and in terms thereof.

8. In the decision reported in Chockkalingam, S.S. Chokkalingam v. R.B.S. Mani and 5 others (1994-1-L.W. 321) it is held that in a case where a false case was set up that no time limit was filed for completion of transaction, and that there was a panchayat, and that there was no tenant, the plaintiff is not entitled to equitable relief. In the present case, the appellant is guilty of making a false plea that he was put in possession of the property in pursuance of the agreement under Ex. A-2. He has also put another false plea stating that Devadoss has agreed to produce the title deeds in respect of the property and also the encumbrance certificate and he was only taking time and did not produce them as contemplated. This undertaking said to have been given by Devadoss is not in the agreement under Ex. A-2 and therefore, the appellant is guilty of making false plea on this aspect is also apparent. The decision reported in Chokkalingam, S.S. Chokkalingam v. R.B.S. Mani and 5 others (1994-1-L.W. 321) has held that it is well known that a person who has come to Court with a false case is not entitled to the equitable relief of specific performance.

9. In the instant case, the plaintiff was residing in the suit property even before the agreement, as seen from the very recitals in the agreement. He continues to be in possession and enjoyment of the property without paying the rent for the use and occupation of the premises, even though he has paid a sum of Rs. 10,000/- as advance, out of the sale consideration of Rs. 30,000/. The owner of the property is in France and the plaintiff has put up a false case that the power of attorney of the owner has agreed to produce the title deed and encumbrance certificate and failed to do so. When these aspects are taken into consideration, it is apparent that the plaintiff even though had stated that he was ready and willing to perform him part of the agreement, actually he was not ready and willing to perform his part of the contract.

10. The learned counsel appearing for the appellant would argue that the vendor is bound to produce the documents as per S. 55 of the Transfer of Property Act, and there is no agreement to the contrary and therefore, it cannot be stated that the plaintiff has not performed his part of the contract. S. 55(1)(b) of the Transfer of Property Act provides that the seller is bound to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller's possession or power. P.W 1 in his Chief Examination has stated that in the rejoinder sent by Devadoss he has mentioned that the documents referred to in the reply notice of the plaintiff are available with him and that the plaintiff can conclude the sale through his advocate. During cross examination, he would say that one Mr. Thambiraj was acting as his counsel and he did not make enquiry with Thambiraj as to whether Devadoss has produced for his inspection, the encumbrance certificate and the title deeds and till the date of his examination in court, he does not know whether Devadoss had produced the encumbrance certificates and title deeds before Thambiraj. It is also stated by P.W 1 that particulars relating to the sale, were given to Mr. Thambiraj for issue of a reply notice. When the plaintiff had given particulars to his advocate to issue a reply notice and when Devadoss had expressed that he had the documents with him and the transaction can be completed through the plaintiff's advocate, it cannot be stated that the documents were not produced by Devadoss, for inspection to the advocate to the plaintiff of Mr. Thambiraj. In Ex. A-6, Thambiraj has admitted that Devadoss had shown him some documents without encumbrance. The evidence of P.W 1 that he does not know whether Thambiraj has perused the documents till he gave evidence in Court, would show that he was not ready to accept even undisputed facts. S. 55(1)(b) of the Transfer of Property Act contemplates the seller should produce to the buyer on his request all documents for inspection. In the instant case, the vendor has informed the plaintiff that the documents are available with him and the transaction could be completed by the plaintiff through his advocate and yet, the plaintiff's case is that he does not know whether his advocate has inspected the documents in the possession of Devadoss. The version of the plaintiff is not convincing and not satisfactory to accept his version that Devadoss has not produced the title deeds and encumbrance certificate and that was the reason for not concluding the same. It appears to be a ruse to conceal his own laches.

11. The Power of Attorney viz., Devadoss has sent a letter under Ex. A-3 expressing his readiness and willingness to perform the contract and calling upon the plaintiff to perform his part. But, the plaintiff has not offered the amount as contemplated under Ex. A-2 and he has given a reason for the same which is not in accordance with terms of the agreement to gain belief.

12. Devadoss has given 10 days time in the notice under Ex. A-3 to complete the transaction and yet, there was no response. In those circumstances, the agreement was revoked and the property was sold to the second defendant. The second defendant has also made enquiries and then only purchased the property. When the second defendant has filed R.C.O.P against the plaintiff for eviction, the plaintiff has come forward with this suit. If really the plaintiff was ready and willing to perform his part of the contract, there is no reason as to why he has not come forward with a suit for specific performance, immediately after the period contemplated under the agreement and extended by the power of attorney of the first defendant expired. It only goes to show that the plaintiff who was already in possession of the property belonging to the first defendant who was in France, has continued his possession and enjoyment of the property without paying rent and when the purchaser of the property has sought for his eviction, has come forward with this suit for specific performance or in the alternative a decree for refund of Rs. 10,000/-. The trial Court, after considering all these aspects, has rightly held that the plaintiff is not entitled to a decree for specific performance and decreed the suit for refund of the advance. I am therefore of opinion that there is nothing to interfere with same.

13.In the result, the appeal is dismissed. No costs.

KA/RR/VCS