V. Sethuraman, J.
1. The defendant is the appellant. The plaintiff filed a suit for specific performance of an agreement to reconvey the suit properties and for costs. The plaintiff sold the suit properties to the defendant for a Sum of Rs. 800 on 23rd July, 1965 under Exhibit B-1. It was registered on 24th July, 1965. On that date, there was an agreement of reconveyance entered into between the same parties whereby the defendant agreed to reconvey the suit properties to the plaintiff within a period of 2 1/2 years from the date of the said agreement on receipt of a sum of Rs. 1,375. This agreement of reconveyance has been marked as Exhibit A-1. On the basis of this agreement, the plaintiff called upon the defendant on 29th September, 1967 to execute a reconveyance deed for the sum of Rs. 1,375 and offered to pay the said sum. But the defendant replied refusing the said offer. The plaintiff, therefore, came forward with the suit for specific performance.
2. The defendant raised substantially two Contentions. The first contention was that the period fixed was not 2 1/2 years but only two years and that the offer to pay and the notice calling upon the defendant to reconvey were after the period of two years and, therefore, not valid. The second contention was that there Was no proper tender of the amount at any time.
3. The learned District Munsif, who tried the suit, held that the first contention that, the plea that instead of 2 1/2 years, the period was two years was not open to the defendant in view of Section 92 of the Indian Evidence Act. On the second contention, he held that there was proper tender. He, therefore, decreed the suit as prayed for.
4. The defendant appealed and before the learned Subordinate Judge, no argument was advanced on the question as to whether the period of 2 1/2 years in Exhibit A-1 was cut down to two years later on. The learned Judge examined the only contention that was advanced before him regarding the tender. Following the decision of the Supreme Court in International Contractors Limited v. Prasanta Kumar : 3SCR579 , he held that there was a valid tender in the present case. In his view, when in the reply notice there was a repudiation of the agreement, there was a clear indication on the part of the defendant that if money was tendered, it would have been refused. He, therefore, considered that it could be clearly held in this case that the failure to tender the actual amount was not fatal. He thus concurred with the view of the learned District Munsif on this point. The appeal thus failed.
5. In the present appeal, the learned Counsel for the appellant submitted that the period was cut down to two years after Exhibit A-1. Having regard to the fact that this argument was not pressed at the earlier stage and taking to account the valid reasons given by the learned District Munsif for rejecting this contention, I do not think that this point survives for consideration at this stage. The only point that now requires to be examined is whether the plaintiff actually produced the money at the time when he filed the suit on 23rd January, 1968. He deposited the money into Court on 24th February, 1968. There is no dispute about the deposit.
6. Section 16(c) of the Specific Relief Act, provides that specific performance of a contract cannot be enforced in favour of a person who fails to ever 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 of which has been prevented or waived by the defendant. There is an explanation to the said provision which provides that 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. The plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. The scope of this provision has been considered in a Bench decision of this Court reported in Eswari Amma v. M.K. Korah : AIR1972Mad339 . It was pointed out that in a suit for specific performance the plaintiff must aver in his plaint that he was ready and willing to perform his part of the contract and if the averment was traversed, he must prove the said averment. In pleading his readiness and willingness, it is not necessary for the plaintiff to produce the money. In the present case, the written statement was filed on 21st March, 1968 while the deposit had already been made on 24th February, 1968. Thus, even before the averment was traversed, the plaintiff deposited the amount into Court. The plaintiff has done everything necessary to comply with the provisions of Section 16 of the Specific Relief Act in the present case.
7. The learned Counsel for the appellant drew my attention to a decision of the Rajasthan High Court in Bahadur v. Motiram , as supporting his stand. I have carefully gone through the said decision and I find that the view of the learned single Judge in that case is not anything inconsistent with the Bench decision of this Court. In that case, oral evidence was let in to show that the plaintiff had tendered the sale price of Rs. 1,000 to the defendant on the stipulated date. But this evidence was found to be unsatisfactory and not reliable by both the Courts. Therefore, the learned Judge accepted this finding and held that the plaintiff having failed to perform strictly his part of the contract was guilty of the breach of the terms of the agreement and cannot, therefore, claim specific performance. Though in paragraph 8 of the said judgment, there are some observations which appear prima facie to support the appellant, still I think that the said observation have to be considered in the particular context of the facts of that case. At any rate, having regard to the Bench decision of this Court, the decision of the Rajasthan High Court will not be applicable here. In the circumstances, there is no merit in the second appeal and it is, accordingly dismissed. There will be no order as to costs. No leave.