9.As against the arguments of the learned counsel for the appellant, the learned counsel for the respondent vehemently contended that the judgment of the appellate Court is perfectly valid having regard to the concurrent findings of the Courts below as to the genuineness of the suit agreement and receipt of a major portion of the sale consideration namely a sum of Rs.4,00,000/- out of Rs.5,00,000/- which was paid as advance. Though several issues were raised, I feel that the suit for specific performance has to be dismissed only on the short ground that the plaintiff has not come forward to pay the balance sum of Rs.3,00,000/- before filing the suit. In this case, it is admitted that the agreement was entered into by the plaintiff and second defendant on one side and the first defendant on the other side. Both the plaintiff and second defendant jointly paid a sum of Rs.4,00,000/- out of the total sale consideration of Rs.5,00,000/-. After the sale agreement, dated 25.02.2004, there was a compromise between the first defendant and the second defendant. It is not seriously disputed by the plaintiff that the first defendant has paid a sum of Rs.2,00,000/- along with a further sum of Rs.50,000/- pursuant to the compromise. When it is admitted that the plaintiff had already repaid a sum of Rs.2,50,000/- to the second defendant, what was remaining in the hands of the plaintiff is only a sum of Rs.2,00,000/- which was out of Rs.4,00,000/- received from plaintiff and second defendant. In such circumstances, the suit filed by the plaintiff to execute the sale deed in respect of the whole property in terms of the sale agreement is not acceptable. It is trite position of law that plaintiff should be always ready and willing to perform his part of the contract strictly in terms of the suit agreement dated 25.02.2004. The suit agreement refers to the receipt of a sum of Rs.4,00,000/- from the plaintiff and second defendant. The period of performance is eight months i.e., upto 10.11.2004. The suit agreement also refers to the obligation of the plaintiff and second defendant to discharge the mortgage debt of Rs.85,000/- on behalf of the first defendant and to get the sale deed executed upon payment of the balance amount of Rs.15,000/-. Despite the fact that there is a reference about the obligation of the plaintiff and first defendant to discharge the mortgage loan, there is no whisper either in the plaint or in the deed of mortgage. Leave alone the mortgage that was referred to in the sale agreement, the plaintiff is entitled to seek specific performance only if the first defendant receives the entire sale https://hcservices.ecourts.gov.in/hcservices/ consideration. The prayer in the suit is extracted below:
