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48. Even assuming, though by no means holding, that payment by bank draft was not an essential term of the agreement the readiness for whose performance was to be established to entitle the plaintiffs-contesting respondents to have decree for specific performance of the agreement to reconvey the material on record and the totality of the circumstances leave no doubt that the plaintiffs-contesting respondents were never in a position to pay the money and take the reconveyance in terms of the contract. Mahesh Chandra P.W. 1 who was plaintiff No. 3 in the suit and respondents No. 3 in this appeal, no doubt, claimed in para 9 of his evidence (at page 54 of the paper book) that he was always ready and is even now ready to pay the money payable to the appellant in terms of the compromise agreement but the general statement by him cannot be taken at its face value. He stated further in para 10 of his evidence that he had made an arrangement for Rs. 90,000/- with Permanand Puri and Vishnu Ram Nagar and Ikrarnama paper No. 84-Ka has been executed between him and other plaintiffs on the one hand and Permanand Puri and Vishnu Ram Nagar on the other hand and that Permanand Puri and Vishnu Ram Nagar had also signed this document. In his cross-examination, he testified in para 17 (page 57 of the paper book) that he and his brothers Bishan Chandra and Kishan Chandra (all plaintiffs in the suit) used to do the work of Government Theka and business of cement jointly, that all the 3 were partners in the firm which they had started in the year 1964, that they had taken loan about Rs. 25,000/- from the State Bank of India against the stock of that business, that the said loan has not been repaid as yet and the bank has filed a suit and sold the pledged stock in it. He also admitted that the suit of the bank has been decreed against them and that the money of that decree is still unpaid. He further stated in para 26 of his evidence (page 61 of the paper book) that Vishnu Ram Nagar and Permanand Puri has not given any money to them in cash nor had they got any bank draft prepared in favour of Bishambhar Nath Agrawal defendant No. 1 -appellant for any amount. He stated further in para 28 of his evidence that on 21-10-1975 they had calculated and found that about Rs. 1,40,000/- were due to be paid (for reconveyance). It was also elicited from him in para 31 of his evidence (page 64 of the paper book) that in the year 1975 sale tax dues were outstanding against them (the plaintiffs-contesting respondents). He was suggested at the close of his cross-examination that they had no arrangement of money for taking the sale deed and that Vishnu Ram Nagar and Permanand Puri also had no arrangement of money. He of course, made a denial of the suggestions but his denial can hardly be taken at its face value.

49. Mahesh Chandra Agrawal P.W. 2 claimed in his evidence in para 2 (page 68 of the paper book) that the plaintiffs of the suit had made arrangement of money for reconveyance of the house. But he did not give any details about it. He then claimed that if the defendant No. 1 --appellant had come to Agra for executing the reconveyance a deed, then if need be, he also could give money (for taking that reconveyance from appellant) and that even on the date of his evidence, he could make an arrangement for Rs. One lac or two. However, he did not furnish any material to show his financial soundness to that extent. In his cross-examination, he admitted that the plaintiff-contesting respondents never demanded any loan from him out of sense of shame. He failed to disclose the position of money in his Roker Bahi (cash book) on 30-10-1975 and 31-10-1975. The matter of importance is that he said that it is correct that because plaintiffs-contesting respondents had not asked him up till 30-10-1975 to make arrangement of money, he had not made any arrangement of any money for the purpose of the reconveyance. Further cross-examined, he stated in para 9 of his evidence (page 71 of the paper book) that the plaintiffs-contesting respondents had about 40,000/- with them on 30-10-1975 but there is no value of even this statement in the absence of an assertion by Mahesh Chandra P.W. 1 in his testimony at the trial about the hard cash which was available with the plaintiffs-contesting respondents on 30-10-1975 and 31-10-1975. Further asked he stated that on 31-10-1975 Vishnu Ram Nagar and Permanand Puri, both had brought money in cash but had not brought any bank draft got prepared by them. It is also noticable that he did not say how much money Vishnu Ram Nagar and Permanand Puri had brought with them to the sub-registrar's office on 31-10-1975. It is significant that Permanand Puri and Vishnu Ram Nagar were not examined as witnesses by the plaintiffs-contesting respondents in the trial of the suit. There was no doubt, an agreement (paper No. 84-Ka) relied upon by the plaintiffs-contesting respondents to corroborate their claim of arrangement with Permanand Puri and Vishnu Ram Nagar about financing of Rs. 90,000/-. This document (paper No. 84-Ka) was unilateral and it was not executed by Permanand Puri and Vishnu Ram Nagar. They were only attesting witnesses to the agreement (paper No. 84- Ka) and consequently were not legally bound by it.. A copy of this agreement, (paper No. 84-Ka) is available at pages 140 to 143 of the paper book. The material terms of the same were that Permanand Puri and Vishnu Ram Nagar had made firm promise to give loan of Rs. 90,000/- to the plaintiffs-contesting respondents and so promissing to take loan of Rs. 90,000/- from the said Permanand Puri and Vishnu Ram Nagar bind themselves with the following terms;

Step No. 1 : Execution of reconveyance deed by Bishambhar Nath Agrawal defendant No. 1-appellant in favour of the plaintiffs-contesting respondents.

Step No. II: Execution of the mortgage deed ' in respect of the house in suit (after its reconveyance in favour of the plaintiffs-contesting respondents) by the plaintiffs-contesting respondents in favour of the financiers Permanand Puri and Vishnu Ram Nagar, Step No. III : Payment of Rs. 90,000/- by financers Permanand Puri and Vishnu Ram Nagar to Bishambhar Nath Agrawal, defendant No. 1-appellant.

It was thus clear from the aforementioned terms of the document 84-Ka-I that it did not contemplate payment of a sum of Rs. 90,000/- to the defendant No. 1-appellant at the time of execution of the reconveyance deed. We have already noted that Sub-clause (c) of Clause 3 of the compromise agreement dated (sic) did not contemplate simultaneous performance of reciprocal promises of payment of the consideration money and the execution of the reconveyance deed. It instead specifically provided that the obligation to execute the reconveyance deed will arise after the entire payment is made to the defendant NO. 1-appellant before hand. As noted earlier Permanand Puri and Vishnu Ram Nagar haye not entered into witness box to affirm that they had brought a sum of Rs. 90,000/- with them to the Sub-Registrar's office but even assuming that they did come to the Sub-Registrar's office and bring with them Rs. 90,000/- in cash, there is no basis for the assumption that the plaintiffs-contesting respondents had brought with them hard cash sufficient to pay the remaining amount so as to make the alleged sum of Rs. 90,000/- and the hard cash with them equal to the amount required to be paid for reconveyance. Even assuming that the plaintiffs-contesting respondents had with them the said remaining amount it cannot be said that they were ready to perform their part of the contract which was to make payment of the entire balance amount as per Clause 3 of the agreement before hand prior to calling upon defendant No. 1 -appellant to execute the reconveyance deed. It is clear as per the terms of the document 84-Ka that the plaintiffs would not have been able to get Rs. 90,000/- from Permanand Puri and Vishnu Ram Nagar prior to the execution of the reconveyance deed. As per the terms of the document 84-Ka, the financers were to make money available only after the reconveyance deed had been executed in favour of the plaintiffs-contesting respondents and further after the plaintiffs-contesting respondents after having again become owner of the disputed house by means of the reconveyance deed, had executed i.e. in favour of Permanand Puri and Vishnu Ram Nagar. As such, even taking that the contrivance embodied in 84-A, may have been agreed upon by the plaintiffs-contesting respondents with Permanand Puri and Vishnu Ram Nagar (though the fact that Permanand Puri and Vishnu Ram Nagar did not execute the document but preferred to remain only attesting witnesses to the document and refrained from entering the witness-box at the trial tends to throw a cloak of suspicion around the transaction contemplated in the document 84 Ka-1), the defendant No. 1 -appellant Bishambhar Nath Agrawal was by no means bound to honour the alleged contrivance or understanding between the plaintiffs-contesting respondents and Permanand Puri and Vishnu Ram Nagar. Unless he could become party to any such agreement. This document Ext-84 Ka-1 could not in any manner go to show the readiness of plaintiffs-contesting respondents to pay the money in terms of the compromise agreement aforesaid. We have noted earlier that only Rs. 9180.00 were claimed to be paid after the compromise agreement and no further instalments were paid in period of two years in terms of the compromise agreement aforesaid and the State of things on 31-10-1975 we have noted above. So i t is clear that at any point of time during the said period of two years, the plaintiffs-contesting respondents had with them sufficient money in their hands to become entitled to a decree of specific performance of the agreement of reconveyance. The document 84 Ka-1 was executed on 28- 10-1975 and the terms thereof as they stood on 28-10-1975 showed that on that date the plaintiff had not the sufficient money in their hands at the time and there is nothing in evidence of the plaintiffs-contesting respondents to suggest much less show that they had made any alternative arrangement for the money to be paid to the defendant No. 1 -appellant so that they may legally call upon the defendant No. 1 -appellant to execute the reconveyance deed.