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c z o IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVA^^^%gv«^ MONDAY ,THE TWENTY SIXTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FOUR PRESENT THE HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO FIRST APPEAL NO: 318 OF 2005 HatoH on^n^f against the Judgment and Decree ? 20-04-2005 in O.S.No.25 of 2002 (T) on the file of the Court of the VI Additional District Judge, Visakhapatnam. Between: Viswanadha Rao, S/o. V.S.S.Chalapathi Rao, Hindu, SprtnM^r/ivp^r' r*’ Apartments, Lavakusa Sector 1 MVP Colony, Visakhapatnam-12 AH]!reh^'^*^ V^ini W/o. Prasada Rao, aged 51 yrs, Hindu, R/o. 3-314 Adarshnagar, Old Dairy Farm, Visakhapatnam-40. ...Appellants AND n V.S.S.Murthy, Hindu, aged 52 D.No. 7-12-8, A.U. Out Gate Down, Chinawaitair, Visakhapatnam. ...Respondent yrs. Counsel for the Appellant: SRI. P RAJASEKHAR Counsel for the Respondents: SRI M R S SRINIVAS The Court made the following: JUDGMENT
THE HON’BLE SRi JUSTICE V.GOPALA KRISHNA RAO APPEAL SUIT No.318 OF 2005 JUDGMENT: - This Appeal, under Section 96 of the Code of Civil Procedure [for short ‘the C.P.C.’], is filed by the Appellants/defendants challenging the Decree and Judgment, dated 20.04.2005, in O.S. No.25 of 2002 passed by the learned VI Additional District Judge, Visakhapatnam [for short ‘the trial Court’]. The Respondent herein is the plaintiff in the said Suit. 2. The respondent/plaintiff filed a Suit for specific performance of agreement of sale dated 04.09.2000 directing the defendants to execute registered sale deed of the schedule property in favour of the plaintiff after receiving balance sale consideration, failing which requesting the Court to execute the sale deed on behalf of defendants. 3. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court. 4. The brief averments of the plaint, in O.S. No.25 of 2002, are as under:
2 VGKRJ AS 318 of 2005 The defendants sold away the schedule property, for their family necessity and for acquiring some other properties, to the plaintiff for a consideration of Rs. 13,00,005/- at the rate of Rs.12,381/- for cent and executed a sale agreement in favour of the plaintiff on 04.09.2000 by receiving an advance amount of Rs.2,00,000/- towards part payment of the sale consideration and acknowledged the same in the said agreement. ii) As per the said sale agreement the remaining sale consideration is to be paid at the time of registration and the said registration is to be done on or before 31.01.2001 at the expenses of the plaintiff and the defendants have to get ready for the said registration with all necessary documents such as original title deeds. Income Tax clearance. Encumbrance certificate though the stipulated time has been coming nearer, the defendants have been postponing to get ready for the registration along with the said certificates. While so, the defendants requested the plaintiff to pay them a further advance amount of Rs.3,00,000/- towards payment of the said sale consideration and the plaintiff paid the said amount on 18.01.2001 and the etc. Even part same was endorsed by the
3 VGKRJ AS 318 of 2005 defendants on the said sale agreement. In spite of repeated requests made by the plaintiff, the defendants did not come forward to execute the sale deed after receiving balance of sale consideration. As per the endorsement dated 18.01.2001 there is no time limitation for execution of the sale deed, but the plaintiff has to pay interest at the rate of 12% per annum on the balance sale consideration, which is an unnecessary loss to the plaintiff and it is no loss to the defendants. So, the defendants are postponing the registration in spite of plaintiffs readiness and willingness to pay balance sale consideration. iii) The defendants sent a caveat petition with all false allegations. with a malafide intention for wrongful gain, suppressing the terms and conditions of the sale agreement. Thereupon, the plaintiff sent a telegraphic notice to the defendants on 10.03.2002 and also made a publication on 11.03.2002. Later on 13.03.2002 the plaintiff got issued a lawyer's notice demanding the defendants to get ready for registration of the sale deed in favour of the plaintiff after receiving the balance sale consideration. The defendants did not receive the notice, but they got issued a lawyer's notice dated 11.03.2002 with
VGKRJ AS 318 of 2005 all false allegations to which the plaintiff got issued notice dated 18.03.2002 demanding the defendants to a reply lawyer's get ready for registration. The plaintiff is always ready and willing to pay the balance sale consideration and get the sale deed executed, but the defendants failed to execute the same iv) Therefore, the plaintiff filed the suit for specific performance the sale agreement directing the defendants to execute the sale deed, failing which she requests the court to execute the sale deed on behalf of the defendants. Under any circumstances if the court comes to the conclusion that the specific performance cannot be granted, the plaintiff claimed alternative relief of a decree for an amount of Rsl 3,00,005/- with subsequent interest at the rate of 24% per annum with costs. of 5. The defendants 1 and 2 filed a written statement by denying the averments mentioned in the plaint and further contended under; - as They agreed to have execution of agreement of sale dated 04.09.2000 and further stated that the real fact is that the plaintiff failed to pay the balance amount in a stipulated time as mentioned
5 VGKRJ AS 318 of 2005 in the sale agreement, though these defendants made several requests and demands to the plaintiff for payment of balance amount and ready for registration, but the plaintiff and her husband expressed their inability and due to lack of finance they could not pay the entire balance sale consideration amount in a stipulated time and the plaintiff requested the defendants to accept Rs.3,00,000/- towards part of balance of sale consideration and requests time till 15.02.2001 which was endorsed on the said sale agreement. The plaintiff was never ready to pay the balance of sale consideration and also for registration of the sale deed, though they made several demands and requests, the plaintiff and her husband used to postpone the payment of balance amount and registration on some pretext or the other. The plaintiff never insisted the defendants for execution of the sale deed after receiving the balance consideration. The plaintiff and her husband themselves responsible for dragging the contract of specific performance over a long period. Finally these defendants had no other go but to cancel the contract of the sale agreement, as the plaintiff violated the conditions mentioned in the sale agreement, got issued a registered lawyer's notice to the plaintiff on 11.02.2002 stating that time is the
6 VGKRJ AS 318 of 2005 essence of contract and is hereby cancelled and the advance amount of Rs.5,00,000/- paid by the plaintiff is forfeited and also demanded damages of Rs.2,00,000/- towards loss suffered by the defendants. The said notice was received by the plaintiff and gave a reply dated 18.03.2002 with false allegations. Since the plaintiff did not come forward with the balance of sale consideration and did not serve any notice to that effect and that she is never ready and willing on her part to discharge her part of the contract and spoiled the time for several months, made the defendants lose ultimately she slept out her inability to pay the balance sale consideration and made and paper publication after receiving the lawyer's notice from the defendants, which cause heavy loss to the defendants. As such the plaintiff is not entitled for any relief of specific performance of contract as there are laches on the part of the plaintiff. The cause of action is not correct and the court fee paid is also not correct. 6. Based on the above pleadings, the trial Court framed the following issues;
7 VGKRJ AS 318 of 2005 Whether the agreement of sale dated 04.09.2000 is true and valid? (i) 00 Whether the plaintiff is entitled to the relief of specific performance of contract? On) Whether the time is essence of contract? Ov) Whether the defendants are entitled for damages of Rs. 10,00,000/- for breach of contract? (V) To what relief? 7. During the course of trial in the trial Court, on behalf of the Plaintiff, PW1 to PW3 were examined and Ex.AI to Ex.AIO were marked. On behalf of the Defendants DW1 and DW2 were examined and Ex.BI to Ex.B4 were marked. 8. After completion of the trial and on hearing the arguments of both sides, the trial Court decreed the suit with costs vide its judgment, dated 20.04.2005, against which the present appeal is preferred by the appellants/defendants in the Suit questioning the Decree and Judgment passed by the trial Court.
8 VGKRJ AS 318 of 2005 9. Heard Sri P.Rajasekhar, appellants/defendants and Sri M.R.S.Srinivas, learned counsel for respondent/plaintiff. learned counsel for 10. Learned counsel for the appellants would contend that though the plaintiff is not ready and willing to perform her part of the contract, the trial Court granted relief of specific performance of contract. He would further contend that the trial Court ought to have dismiss the suit by holding that the time is an essence of contract and the plaintiff is not ready and willing to perform her part of the contract. He would further contend that the trial Court came to wrong conclusion and decreed the suit. even 11. Per contra, the learned counsel for respondent would contend that on appreciation of the entire evidence on record, the trial Court rightly came to conclusion that the plaintiff is entitled the main relief of specific performance of agreement of sale dated 04.09.2000 and rightly decreed the suit and there is no need to interfere with the decree and judgment passed by trial Court and the appeal may be dismissed.
9 VGKRJ AS 318 of 2005 12. Having regard to the pleadings in the suit, the findings recorded by the trial Court and in the light of rival contentions and submissions made on either side before this Court, the following points would arise for determination: Whether the plaintiff is entitled to the relief of specific performance of agreement of sale dated 04.09.2000? 1. Whether the trial Court is justified in holding that the plaintiff is entitled to the relief of specific performance of agreement of sale dated 04.09.2000? 2. 3. Whether the decree and Judgment passed by the trial court needs any interference, if so, to what extent? 13. Point No.1: Whether the plaintiff is entitled to the relief of specific performance of agreement of sale dated 04.09.2000? The suit is based on Ex.AI agreement of sale said to have been executed by the defendants. The plaintiff herein claimed the
10 VGKRJ AS 318 of 2005 relief of specific performance of agreement of sale dated 04.09.2000. Ex.A1 recitals goes to show that the defendants agreed to sell the plaint schedule property to the plaintiff for Rs. 13,00,005/- and the plaintiff paid an advance amount of Rs.2,00,000/- on 04.09.2000 towards part payment of sale consideration and it was agreed that the remaining sale consideration is to be paid at the time of registration and the said registration is to be done on or before 31.01.2001 with the expenses of the plaintiff and there was another recital that the defendants have to get ready for the said registration with all necessary documents such as original title deeds, income tax clearance and encumbrance certificate, endorsement on Ex.AI clearly goes to show that the plaintiff paid amount of Rs.3,00,000/- towards part payment of the sale consideration on 18.01.2001 and the same was endorsed by the defendants on the said sale agreement. The main contention of the Further Ex.A2 an appellants is that the respondent/plaintiff is not ready with balance sale consideration even though the defendants are ready to execute a regular registered sale deed, the plaintiff expressed her inability to pay the balance sale consideration and failed to perform her part of the contract.
11 VGKRJ AS 318 of 2005 The legal position, in this regard is no more res Integra, the law is well settled that, grant of decree of specific performance of agreement of sale is not an automatic and it is a discretionary relief, the same is required to be exercised to be judiciously sound and reasonably. 14. As stated supra, Ex.AI is a crucial document based on which the suit is filed. The undisputed facts are the defendants executed Ex.AI agreement of sale by agreeing to sell the plaint schedule property for Rs. 13,00,005/- and the plaintiff paid an amount of Rs.2,00,000/- on the date of Ex.AI agreement of sale towards advance amount of sale consideration and a time is fixed for obtaining registered sale deed by the plaintiff. The defendants are not disputing the receipt of advance amount of Rs.2,00,000/- under Ex.AI agreement of sale and so also receipt of Rs.3,00,000/- under Ex.A2 part payment endorsement. As per the recitals in Ex.AI, the appellants agreed to deliver the possession of the suit schedule property at the time of registration, the defendants have to hand over the NIL encumbrance certificate and the original title deeds to
12 VGKRJ AS 318 of 2005 a the plaintiff and also have to obtain income tax clearance certificate from the concerned departrnent. 15. To discharge the burden of the plaintiff, the plaintiff relied her self-testimony as PW1. PW2 is one of the attestor in Ex.AI agreement of sale and husband of the plaintiff. His evidence clearly goes to show about the execution of Ex.AI agreement of sale by both the defendants in favour of the plaintiff and so also receipt of advance sale consideration of Rs.2,00,000/- on the date of Ex.AI agreement of sale. The evidence of PW3 goes to show that the defendants agreed to sell away the plaint schedule property to the plaintiff for a consideration of Rs. 13,00,005/- and executed agreement of sale on 04.09.2000 in favour of the plaintiff by receiving advance sale consideration of Rs.2,00,000/- as part payment. As stated supra, the receipt of advance amount of Rs.2,00,000/- on the date of Ex.AI agreement of sale and so also execution of Ex.AI agreement of sale is not at all disputed by the defendants. The receipt of Rs.3,00,000/- towards part payment of sale consideration under Ex.A2 is also not at all disputed by the defendants. on an
VGKRJ AS 318 of 2005 13 16. The main contention of the appellants is that the respondent/plaintiff failed to pay the balance amount in the stipulated time as mentioned in the suit agreement in spite of several requests and demands for payment of balance amount and ready for registration, but the respondent and her husband expressed their inability and due to lack of finance they could not pay the entire balance sale consideration within a stipulated time and requested the appellants to accept Rs.3,00,000/- cash towards balance of sale consideration amount and requested time till 15.02.2001 which was endorsed on the agreement of sale itself. It is the specific case of the plaintiff that even though the stipulated time has been coming nearer, the defendants have been postponing to get ready for registration along with necessary certificates and while so the defendants requested her to pay further advance amount of Rs.3,00,000/- towards part payment of sale consideration. The plaintiff further pleaded that as requested by the defendants she paid an amount of Rs.3,00,000/- to the defendants on 18.01.2001 and the same was endorsed by the defendants on the said sale agreement. The plaintiff entered into the witness box as PW1, in chief examination affidavit the plaintiff specifically stated that the
14 VGKRJ AS 318 of 2005 defendants requested her to Rs.3,00,000/- towards part payment of sale pay further advance amount of consideration, as requested by the defendants she paid an amount of Rs.3,00,000/- to the defendants on 18.01.2001, it was not at all suggested to PW1 in cross examination by the learned counsel for defendants that the defendants did not request the PW1 to pay a sum of Rs.3,00,000/- to them on 18.01.2001. Ex.AI recitals goes to show that the remaining sale consideration has to be paid on the date of registration by 31.01.2001 and by the date of registration, the appellants have to handover the nil encumbrance certificate and original title deeds to the plaintiff and further they will obtain the the income tax clearance certificate. Further more, Ex.A2 endorsement is not at all disputed by the defendants. Ex.A2 part payment endorsement is admitted by the defendants. Ex.A2 part payment endorsement is also not at all disputed by the plaintiffs. The date fixed for performance of contract of sale under Ex.A2 is dated 15.02.2001, otherwise, the plaintiff has to pay the remaining balance sale consideration with interest at 12% p.a. There is no whisper in the Ex.A2 endorsement that if the plaintiff failed to pay the remaining
15 VGKRJ AS 318 of 2005 balance sale consideration, the advance amount paid by the plaintiff will be forfeited. Therefore, the time is not an essence of contract. 17. The learned counsel for appellants would contend that the plaintiff failed to prove her readiness and willingness at all material point of times and that she is not entitled the main relief of specific performance of agreement of sale'. The learned counsel for appellants further contend that there are so many laches on the part of the plaintiff in discharging her part of the contract and that the plaintiff is not entitled the main relief of specific performance of agreement of sale and he would further contend that the time is an essence of contract in the case on hand. 18. The learned counsel for appellants placed a reliance in George M.Mathews @ George vs. Muhammed Haneefa Rawther\ in that decision it was held as follows: It could thus be seen that, while readiness refers to the financial capacity of the plaintiff/vendor to pay the sale consideration, willingness is a different component referable to the conduct of the vendor. Therefore, it is not axiomatic that one who is ready is automatically willing to perform the contract. Per contra, one who is AIR online 2023 Ker 31
16 VGKRJ AS 318 of 2005 ready with the funds can still be unwilling to perform the contract for different reasons altogether, say for example, the vendor deems the transaction not feasible/profitable for commercial reasons. The High Court of Kerala, in the above decision, further held that; Section 20 of the Act stipulates that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so. It also stipulates that the discretion, however, should be sound and reasonable guided by judicial principles. 19. The learned counsel for appellants further placed a reliance in Ravi Setia vs. Madanlal and others^, in that decision it was held as follows; There can be no straight jacket formula with regard to readiness and willingness. It will have to be construed in the facts and circumstances of each case in the light of all attending facts and circumstances. We are of the considered opinion, that in the facts and circumstances of the present case, the failure of the plaintiff to offer any explanation why the balance consideration was not deposited within the time granted, the filing of the application for extension of time after expiry of the prescribed period coupled with the frivolousness of the grounds taken in the application for extension that the money would lie in the bank without earning Interest, are all but evidence of incapacity on part of the plaintiff to 2- (2019)9SCC 381
17 VGKRJ AS 318 of 2005 perform his obligations under the agreement and reflective of lack of readiness and willingness. He preferred to wait and abide by the gamble of a favourable decision in the first appeal. The learned counsel for appellants further placed another reliance in V.S.AIamelu vs. Thavamani and others^, in that decision, it was held as follows: a. Pleadings in the plaint alone are not sufficient to hold that the Plaintiff was ready and willing in terms of the Section 16(c) of the Specific Relief Act and it requires not only such plea but also proof of the same. d. Section 16(c) of the Specific Relief Act, 1963 mandates readiness and willingness on the part of the Plaintiff and it is a condition precedent for obtaining relief of grant of Specific Performance. f. Even in the absence of specific plea by the opposite party, the Court is not bound to grant Specific Performance and it is left with no other alternative but to dismiss the suit when there is non- compliance of Section 16(c) of the Specific Relief Act, 1963. The learned counsel for appellants placed another reliance in Pramod buildings and developers Private Limited vs. Shanta Chopra"^, in that decision, the Apex Court held as follows: 5 2013 (3) MWN(civil) 71 M2011)4SCC 741
18 VGKRJ AS 318 of 2005 As rightly held by the High Court, it was for the plamtiff who approached the Court to prove that he perform the contract. The plaintiff In a suit for specific performance, cannot obviously succeed unless he proved that he was ready and willing to perform the contract. vi/as ready and willing to 20. The learned counsel for appellants placed another reliance i His Holiness Acharya Swami Ganesh Dassji Thapar^, in that decision, it was held as follows: in vs. Sitaram There is a distinction between readiness to perform the and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the execution of the agreement, i.e., by 27.2.1975. The draft sale deed was not returned after being duly approved by the petitioner. The factum of readiness and willingness to perform plaintiff’s part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always contract J M1996)4SCC 526
19 VGKRJ AS 318 of 2005 ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff not ready nor had'capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash contracted and intended to abide for the time which disentitles him as time is of the essence of the contract. was as The learned counsel for appellants placed another reliance in J.P.Builders and another vs. A.Ramadas rao and anothei^. In the case on hand, the main contention of the appellants is that the plaintiff is not having financial capacity to purchase the suit schedule property. It is the case of the plaintiff that she is working as a professor in Andhra University at Visakhapatnam and her husband used to work as a General Manager of M/s.Hindusthan Cables Limited, the same is not at all disputed by the defendants/appel lants. Therefore, the contention of the appellants that the plaintiff is not having financial capacity to purchase the plaint schedule property has to be ruled out. The another contention of the appellants is that even though the appellants are ready to execute a regular registered sale deed 21. M2011) 1 see 429
20 VGKRJ AS 318 of 2005 but the plaintiff has not come forward to consideration. The recitals in Ex.A1 sale consideration has to pay the balance sale goes to show that the remaining pay on the date of registration by 31.01.2001 and by the date of registration, the appellants have to handed over the nil encumbrance certificate, original title deeds to the plaintiff and further the defendants will obtain Income clearance certificate. It is not in dispute that under Ex.A2 endorsement, the defendants Tax received part payment of Rs.3,00,000/- on 18.01.2001, further the Ex.A2 endorsement goes to show the plaintiff has to pay the remaining balance sale consideration by 15^^ February, otherwise it carries interest of 12% p.a. There is no forfeiture clause in Ex.AI agreement of sale. 22. The legal position in this regard is no more res Integra. It has been well settled by Constitution Bench of Apex Court in Chand Rani vs. Kamal Ranf, in the said case, the Apex Court held follows: as “It is a well-accepted principle that in the case of sale of immovable property, time is never regarded as the essence of contract. In fact, i M1993) 1 see 519
21 VGKRJ AS 318 of 2005 there is a presumption against time being the essence of contract. This principle is hot in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law books not at later, but at the subsistence of agreement. It has to be ascertained whether under the terms of contract, the parties named a specific time within which completion was to take place, really and in the substance it was contended that it should be completed within a reasonable time. An intention to make time the essence of contract must be expressed in unequivocal language”. It is well settled that where the contract relates to the sale of immovable property, it will normally be presumed that the time is not an essence of contract. 23. The Apex Court in a case of Surinder Pal Soni vs. Sohan La^ held as follows: The Issue can be looked at from another perspective in terms of the provisions of Section 28 of the Specific Relief Act. Section 28 provides: '28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed. (1) Where In any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made (2020) 15 see 771 r
22 VGKRJ AS 318 of 2005 and the purchaser or lessee does not, within the period allowed by the decree or such further period as the court may allow, pay the purchase money or other sum which the court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as regards the party In default or altogether, as the justice of the case may require. ” Interpreting the provisions of Section 28 of the Specific Relief Act, a three Judge Bench of this Court held in Sardar Mohar Singh (supra): “4. From the language of sub-section (1) of Section 28, it could be seen that the court does not lose its Jurisdiction after the grant of the decree for specific performance nor it becomes functus officio. The very fact that Section 28 itself gives power to grant order of rescission of the decree would indicate that till the sale deed Is executed in execution of the decree, the trial court retains its power and Jurisdiction to deal with the decree of specific performance. It would also be clear that the court has power to enlarge the time in favour of the Judgment-debtor to pay the amount or to perform the conditions mentioned in the decree for specific performance, in spite of an application for rescission of the decree having been filed by the Judgment-debtor and rejected. In other words, the court has the discretion to extend time for compliance of the conditional decree as mentioned in the decree for specific performance". This Court observed that when the decree specifies the time for performance of the conditions of the decree, on its failure to deposit ^ the money. Section 28(1) itself gives power to the court to extend \
23 VGKRJ AS 318 of 2005 the time on such terms as the court may allow to pay the purchase money or other sum which the court has ordered him to pay. The Court held, after noticing the conflict of decisions by the Bombay High Court and the Andhra Pradesh High Court, that when the court which passed the decree and the executing court is the same, application under Section 28 can be, filed in the executing court. However, where a decree is transferred for execution to a transferee executing court then certainly the transferee court is not the original court and the executing court is not the “same court” within the meaning of Section 28 of the Act. But when an application has been made in the court in which the original suit was filed and the execution is being proceeded with, then certainly an application under Section 28 is maintainable in the same court”. 24. In the case on hand Ex.A3 goes to show that in first the plaintiff herein issued a telegraphic notice to the defendants with a specific plea that the recitals of copy of caveat notice given by the defendants are false and further averred in Ex.A4 that even though the plaintiff demanded for registration since more than one year, but the defendants are not cooperating for registration. Further more in the written statement itself the defendants admitted the execution of Ex.A1 agreement of sale. Contrary to the said admission, the defendants has taken a new plea in Ex.A3 that “the plaintiff and her men are used to interfere with their property and cause very
24 VGKRJ AS 318 of 2005 inconvenience to them and try to highhanded activities by grabbing the schedule property, though the plaintiff has no right in the property”. The recitals in Ex.A1 agreement of sale and execution of Ex.A1 agreement of sale and part payment received under Ex.A1 agreement and under Ex.A2 endorsement is suppressed by the appellants in Ex.A3 caveat application. Ex.A4 goes to show that immediately on the very next day of telegraphic notice i.e. 11.03.2002 a paper publication was given in Eenadu Daily by the plaintiff. Ex.A6 goes to show that a legal notice was sent by the plaintiff by mentioning that she is ready for registration, but the defendants are not ready to discharge their part of the contract. The plaintiff further pleaded in Ex.A6 notice that “the plaintiff has been continuously requesting the defendants to get ready for registration, but they have been postponing the same on some pretext or other and the plaintiff insisted the defendants in the month of February, 2001 to get ready for registration and informed that she arranged money also for the same and the defendants assured the plaintiff that they will produce the required documents for registration shortly, but suppressing the same, the false allegations were averred in the caveat petition”. Ex.A9 goes to show the defendants issued ajegal on
VGKRJ AS 318 of 2005 25 notice dated 11.03.2002 to the plaintiff. Ex.AIO goes to show that the legal notice dated 11.03.2002 issued by the defendants was received by the plaintiff on 18.03.2002. In cross examination, the second defendant i.e., DW1 admitted that by the date fixed in the agreement, they have not handed over the original title deeds, encumbrance certificate and original Income Tax clearance certificate and the said certificates not with her and they have not obtained the said certificates. Further, she admits that in the notice got issued by them they have not got it mentioned that they are ready with the above certificates and ready to register the sale deeds. DW1 further admits in cross examination that she did not get it mentioned in Ex.A3 caveat about the existence of sale transaction under Ex.AI and so also part payment under Ex.A2 and on the other hand she got it mentioned that there was an oral transaction and the plaintiff has demanded for lesser amount. Another admission made by DW1 in cross examination is that she received a telegraphic notice from the plaintiff on 10.03.2002 informing that they are ready to get the sale deed after paying the balance amount. She further admits that the 25. are
26 VGKRJ AS 318 of 2005 plaintiff got issued a notice dated 13.03.2002 demanding to execute the sale deed after receiving the balance amount. She further admits that in Ex.A7 she got it mentioned that they issued a notice on 11.03.2002 and it is registered on 13.03.2002 though it is a dated 11.03.2002. As stated supra in Ex.A3 caveat petition the execution of Ex.A1 agreement of sale and receipt of advance sale consideration and part payment under Ex.A2 is not at all mentioned by the defendants for the reasons best known to the defendants. 26. The evidence on record proves about the execution of Ex.A1 agreement of sale by the defendants after receiving advance amount of Rs.2,00,000/- as part payment of sale consideration. As stated supra, execution of Ex.A1 agreement of sale and receipt of advance amount of sale consideration of Rs.2,00,000/- is not in dispute by the defendants, but contrary to the said plea defendants issued a caveat notice by mentioning that there was only an oral transaction to sell the property. The defendants are not disputing the contents of Ex.A1 and execution of Ex.A1. The defendants also not in dispute about the receipt of advance amount of Rs.2,00,000/- under Ex.A1 agreement of sale and so also the
27 VGKRJ AS 318 of 2005 Rs.3,00,000/- towards part payment of sale consideration under Ex.A2 endorsement on the back of Ex.Al But the defendants suppressed the same in Ex.A3 caveat notice. It is not in dispute by the defendants that in Ex.Al the time for payment, for the remaining balance amount and to obtain registered sale deed, is fixed to 31.01.2001, but the same has not been taken place in Ex.A3. As per the terms of Ex.Al agreement of sale, the plaintiff has paid amount of Rs.2,00,000/- as advance sale consideration on the date of agreement and the remaining balance has to be paid by 31.01.2001 and there was an another condition that the defendants have to deliver vacant possession of the plaint schedule property and so also they have to produce necessary documents i.e., nil encumbrance certificate, original sale deeds, defendant admitted in his evidence that they have not handed over the original title deeds, encumbrance certificate to the plaintiff and the said certificates are not with him. DW2 admitted that he has not obtained the relevant certificates to comply the conditions in Ex.Al agreement of sale. The conditions in Ex.Al are, he has to produce title deeds and nil encumbrance certificate by the date of registration. an DW2 i.e., first
28 VGKRJ AS 318 of 2005 27. The learned counsel for appellants relied on a judgment in K.S.Vidyanadam and others vs. Vairavan^, in that decision it was held as follows: It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that and every suit for specific performance of the does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time limits stipulated in the agreement for doing one or the other thing by one or the other party. The learned counsel for appellants relied on a judgment in Saraswathi Ammal vs. V.C.Lingam^^, in that decision it was held as follows: any agreement (which As to the time being the essence of the contract, is a matter of intention of the parties to the contract, evidenced by express stipulations or by circumstances which are sufficiently strong to displace ordinary presumption that in contract for sale of land stipulation as to time is not of essence; however by an appropriate notice, one of the parties may notify the other making the time the M1997) 3SCC 1 '°ILR 1993 KAR 427
29 VGKRJ AS 318 of 2005 essence of contract, subsequently. The plaintiff seeking specific performance must "plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit". To prove himself ready and willing, a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction...There is no authority for the proposition that the purchaser's readiness and willingness has to be inferred by his repeated assertion of those magic words. It is essentially a question of fact to be answered from the material on record read with the proved circumstances of the case. 28. As stated supra, in the case on hand, there is no clause of forfeiture in Ex.A1 agreement of sale and there are no laches on the part of the plaintiff and the laches are on the part of the defendants for not getting ready with original title deeds and nil encumbrance certificate. The evidence of PW1 and PW2 clearly goes to show that even though the plaintiff is ready to pay the remaining balance sale consideration, the defendants are not getting ready for original title deeds and nil encumbrance certificate and they have not cooperated for registration of the sale deed. As stated supra, prior to issuance of legal notice by the defendants, the plaintiff issued a telegraphic notice and paper publication. Even though, the caveat notice was issued by the defendants, the defendants suppressed
30 VGKRJ AS 318 of 2005 the EX.A1 agreement of sale and Ex.A2 part payment and also advance amount received under Ex.A1 agreement of sale and under Ex.A2 for the reasons best known to the defendants. 29. The material on record reveals that there was a condition in between both the parties, as per Ex.A1, that the plaintiff has to the remaining balance sale consideration by the date of registration and the defendants have to handover original title deeds and nil encumbrance certificate, but the fact remains that even till the date of giving the evidence in the Court, the defendants are not get ready with title deeds and nil encumbrance certificate. It is a fact that from out of Rs. 13,00,005/- towards total consideration, an amount of Rs.5,00,000/- was received by the defendants in the month of September, 2000 and in January, 2001 respectively. In those days, the said amount is not a small amount. pay The evidence of PW1 and PW2 shows that though the plaintiff demanded the defendants for several times to execute the regular registered sale deed after receiving balance sale consideration, but the defendants are not get ready to execute the sale deed after complying the conditions in the agreement of. sale. As seen from the 30.
VGKRJ AS 318 of 2005 31 evidence on record, the laches are on the part of defendants only in not obtaining the documents as admitted by them in their evidence supports. The contention of the plaintiff is that the defendants are not get ready to execute a regular registered sale deed. As stated supra, there are no laches on the part of the plaintiff in not obtaining a regular registered sale deed. As seen from the material on record, there are laches on the part of the defendants only in not obtaining necessary documents as admitted by them in their evidence, as per the own admissions of DW2 they are not ready with the title deed and nil encumbrance certificate. Though there was a demand by the plaintiff, the defendants are not cooperating for execution of registered sale deed. Therefore, the plaintiff is entitled the main relief of specific performance of agreement of sale dated 04.09.2000. Accordingly, the point No.1 is answered. 31. Point Nos.2 and 3: 32. Whether the trial Court is justified in holding that the plaintiff is entitled to the relief of specific performance of agreement of sale dated 04.09.2000?
32 VGKRJ AS 318 of 2005 Whether the decree and judgment passed by the trial court needs any interference, if so, to what extent? In view of my findings on point No.1, the trial Court is justified in holding that the plaintiff is entitled the main relief of specific performance of agreement of sale dated 04.09.2000. I do not find any illegality in the decree and judgment passed by the trial Court and the decree and judgment passed by the trial Court is perfectly sustainable under law and it requires the point Nos.2 and 3 are answered. interference. Accordingly, no 33. In the result, the Appeal Suit is dismissed, confirming the decree and Judgment dated 20.04.2005 in O.S.No.25 of 2002 passed by the learned VI Additional District Judge, Visakhapatnam. No order as to costs. As a sequel, miscellaneous petitions, if any, pending in the Appeal Suit shall stand closed. SD/- K. TATA RAO DEPUTY REGISTRAR 46^ //TRUE COPY// SECTION OFFICER To, 1. The VI Additional District Judge, Visakhapatnam. (with records) 2. One CC to Sri. P Rajasekhar, Advocate [OPUC] 3. One CC to Sri. MRS Srinivas, Advocate [OPUC] 4. The Section Officer, V.R Section, High Court of Andhra Pradesh at Amaravati. 5. Three CD Copies vna -A
HIGH COURT DATED:26/02/2024 JUDGMENT AS.No.318 of 2005 ~ICO^\C3> ^PP DISMISSING THE APPEAL SUIT WITHOUT COSTS
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAV|^*^^4l^^ o i MONDAY ,THE TWENTY SIXTH DAY OF FEBRUARY fx TWO THOUSAND AND TWENTY FOUR m PRESENT THE HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO FIRST APPEAL NO: 318 OF 2005 Between: 1. Sri Vantharam Viswanadha Rao, S/o. V.S.S.Chalapathi Rao, Hindu, aged about 51 yrs, Flat No.HIG 37, VUDA Apartments, Lavakusa Sector 1 MVP Colony, Visakhapatnam-12 2. Smt. Ganta Vahini, W/o. Prasada Rao, aged 51 yrs, Hindu, R/o. 3-314, Adarshnagar, Old Dairy Farm, Visakhapatnam-40. ...Appellants AND Smt. Vadlamani Padmaja, W/o. Sri V.S.S.Murthy, Hindu, aged 52 yrs, D.No. 7-12-8, A.U. Out Gate Down, Chinawaltair, Visakhapatnam. ...Respondent Appeal under Section 96 of C.P.C against the Judgment and Decree of the Court of the VI Additional District Judge, Visakhapatnam dated 20-04- 2005 on In Original Suit / Original Petition No.25 of 2002 (T) ORDER: This appeal coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Lower Court and the material papers in the Suit and upon hearing the arguments of Sri P.Rajasekhar, for the appellants and of Sri M.R.S.Srinivas for the Respondents. This Court doth order and decree as follows: 1. That the Appeal Suit be and hereby is dismissed.
w r - 2. That the decree and Judgment dated 20.04.2005 in O.S.No.25 of 2002 passed by VI Additional District Judge, Visakhapatnam be and hereby i confirmed. 3. That there be no order as to costs in this appeal. IS SD/- K. TATA RAO DEPUTY REGISTRAR //TRUE COPY// SECTION OFFICER To, 1. The VI Additional District Judge, Visakhapatnam. 2. Three CD Copies vna D 4'0-izuJO^
HIGH COURT DATED:26/02/2024 DECREE AS.No.318 of 2005 liCOp^ AP] Tmi^ DISMISSING THE APPEAL SUIT WITHOUT COSTS