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2007 DIGILAW 470 (AP)

T. v. Ratnakar Rao VS Hemantha Kumar

2007-04-27

D.APPA RAO, D.S.R.VERMA

body2007
J U D G M E N T (per the Hon’ble Mr.Justice D.S.R. Varma) Aggrieved by the judgment and decree, dated 06-03-2006, passed in O.S.No.422 of 2003, by the IX Additional Chief Judge, City Civil Court (Fast Track Court) at Hyderabad, decreeing the suit for specific performance of the agreement of sale, dated 09-05-2003, and for a consequential injunction to restrain the defendant from transferring or alienating or changing the nature of the suit schedule property, the present City Civil Court Appeal is filed by the defendant in the suit. 2. Appellant is the defendant and respondents are the plaintiffs in the suit, before the court below. 3. For the sake of convenience, in this judgment, the parties herein are referred to as per their array in the suit. 4. The plaint averments, in brief, are that defendant is the absolute owner of the suit schedule property, bearing No.8-2-293/82/A 357, admeasuring 1176 sq.yards in Sy.No.120 (403-1, old), situated at Shaikpet village, Hyderabad of Jubilee Hills Cooperative House Building Society Limited, that there was an agreement of sale, dated 09-05-2003, under Ex.A-1, between the plaintiffs and the defendant to sell the suit schedule property for a sum of Rs.1,02,00,000/- and a sum of Rs.15,00,000/- was paid towards advance and the balance was agreed to be paid at the time of execution of the sale deed. 5. It is further averred that as per the agreement of sale, the defendant has to execute the sale deed within a period of four months with a grace period of one more month, that it was further averred that the vacant possession of the suit schedule property, which was in occupation of the tenant, by name Dr.Kennedy, was agreed to be delivered at the time of execution of the sale deed. 6. It is the further averment of the plaintiffs that they approached the defendant calling upon him to execute the sale deed as they were ready and willing to pay the balance sale consideration, but the defendant could not do so because the tenant had not vacated the suit schedule premises and requested some more time for delivery of vacant possession, that the plaintiffs were having the balance sale consideration kept under the Fixed Deposit Receipts (FDRs) in Indian Overseas Bank, Basheerbagh Branch and also A.P. Mahesh Cooperative Urban Bank Limited. It is also averred that the plaintiffs, in fact, received a sum of Rs.54,00,000/in the land acquisition proceedings and for the purpose of capital gain, they have deposited the said amount in the bank in FDRs for the purpose of purchase of another property and consequently entered into the present agreement of sale. 7. The plaint averments further reveal that even after the expiry of the period of one month, as contemplated under Ex.A-1, when the defendant failed to get the tenant vacated, the plaintiffs got issued a telegraphic notice to the defendant showing their readiness and willingness to complete the sale transaction. It is also revealed that on receipt of the said telegraphic notice, the defendant sent a reply, dated 10-11-2003, under Ex.A-3, calling upon the plaintiffs to obtain a Demand Draft (DD) for Rs.87,00,000/- to proceed with the transaction. It is the further case of the plaintiffs that on receipt of the said telegram, the plaintiffs sent a reply, reminding the defendant that the vacant physical possession is the term of the agreement and the property is not yet vacant and unless the terms of the agreement is complied with, they cannot proceed further and, in fact, they are ready and willing to pay the balance sale consideration, that vide letter, 11-11-2003, under Ex.A-5, the defendant cancelled the agreement of sale and refunded the an amount of Rs.15,00,000/- by way of a cheque, which was paid towards advance at the time of execution of the agreement of sale. Hence, it is averred that the defendant has no right to cancel the agreement of sale in view of the fact that there was a lapse on his part by not getting the premises vacated by the tenant and hence the conduct of the defendant in returning the amount is not only contrary to the terms of the agreement, but also illegal and arbitrary. It is the further averment of the plaintiffs that the possession of the suit schedule property even as on the date of filing of the suit was with the tenant, therefore, it is stated that no lapse can be attributed to the plaintiffs and on the other hand, the defendant failed and neglected to comply with the terms of the agreement. Hence, sought for the relief of specific performance of the agreement of sale and for consequential injunction. 8. Hence, sought for the relief of specific performance of the agreement of sale and for consequential injunction. 8. The defendant filed his written statement denying the material allegations in the plaint. It is stated that the suit schedule property was in the occupation of the tenant, by name Dr.Kennedy, which fact was known to both the parties, that the defendant had no problem to get the tenant vacated and the tenant is always ready and willing to vacate the premises provided he plaintiffs were ready to proceed with the transaction. It is further averred that the agreement of sale under Ex.A-1 itself is not admissible in evidence, inasmuch as, the same is not sufficiently stamped. 9. Next, it is stated that the time is the essence of the contract and in order to demonstrate the same, it was stated that the period of five months for execution of the sale deed was reduced from five (5) months to four (4) months and, therefore, the plaintiffs were put to notice in the beginning itself that the time is the essence of the contract and the balance consideration has to be paid on or before 08-10-2003. It is further stated that on 09-11-2003 the defendant sent a telegram to the plaintiffs, both to the residential address and the office address, wherein it is stated that when the plaintiffs approached the defendant personally and sought one month time i.e., from 09-11-2003 and that the said request was rejected on the ground that already the time was extended from 09-10-2003 to 8-11-2003 and further requested to obtain Demand Draft in his favour for the balance sale consideration by 10-11-2003, which falls on Monday. 10. In the written statement, it is also stated that on the same day i.e., on 08-11-2003, the plaintiffs allegedly sent a telegram to the defendant stating that they were ready and willing to perform their part of the agreement and complete the sale transaction of the suit schedule property with vacant possession. It is stated that the plaintiffs sent telegram, dated 09-11-2003, which was received by him on 11-11-2003 obviously owing to the refusal to extend the time any further, as stated by him in Ex.A-3 - telegram, dated 09-11-2003, issued by the defendant. 11. It is stated that the plaintiffs sent telegram, dated 09-11-2003, which was received by him on 11-11-2003 obviously owing to the refusal to extend the time any further, as stated by him in Ex.A-3 - telegram, dated 09-11-2003, issued by the defendant. 11. It is further alleged that the plaintiffs did not take the Demand Drafts in order to show their readiness and willingness so far as the balance sale consideration is concerned. Insofar as the tenant is concerned, it was alleged that the plaintiffs were very much aware that the tenant, Dr. Kennedy, was already in the process of vacating the premises. It is further alleged that since the plaintiffs did not come forward to complete the transaction by arranging the balance sale consideration, the defendant, instead of incurring further loss, permitted the tenant to continue for some more period in a portion of the suit premises. Hence the allegation of the plaintiffs, in this regard, has been denied. 12. It is further alleged that a bare reading of the terms and conditions of the agreement of sale would reveal that time was the essence of the contract. It was his further allegation that the defendant was ready to perform his part of the agreement provided the plaintiffs comply with theirs and instead of arranging balance sale consideration on or before the last date i.e., 08-11-2003, no such attempt was made in that regard by the plaintiffs and on the contrary only a telegram was issued expressing their willingness and readiness on the last date. It is further alleged that instead of complying with the terms and conditions of the agreement, the plaintiffs have chosen to indulge into further correspondence apparently because they were not ready with the money or they did not intend to pay the balance sale consideration. 13. It is also alleged that the plaintiffs have sufficient knowledge that the premises was vacated and there was no one in occupation of the same, that the tenant had, in fact, confirmed in writing that he shall vacate the property by September, 2003 and had, in fact, made necessary preparations for the same. It is further stated that only in order to minimize the losses, he has permitted the tenant to continue for some more time, since the plaintiffs did not come forward to perform their part of the agreement. It is further stated that only in order to minimize the losses, he has permitted the tenant to continue for some more time, since the plaintiffs did not come forward to perform their part of the agreement. Hence, it was alleged that the plaintiffs did not approach the Court with clean hands and hence, they are not entitled for the relief sought and prayed for dismissal of the suit. 14. Basing on the pleadings of both the parties, the Court below framed the following issues. (1) Whether the plaintiffs are ready and willing to perform their part of contract? (2) Whether the plaintiffs are entitled to the specific performance of agreement of sale, dated 9-5-2003? (3) Whether the plaintiffs are entitled for perpetual injunction prayed? (4) To what relief? 15. On behalf of plaintiffs, the first plaintiff was examined as PW-1 and got marked Exs.A-1 to A-16 and also Exs.A-10(a), A-11(a), A-13(a), A-14(a), A-15(a) and A-16(a). While on behalf of the defendant he himself was examined as DW-1 and got marked Exs.B-1 to B-6. 16. After hearing both sides and basing on the material and the evidence, both oral and documentary, available on record, the Court below decreed the suit in favour of the plaintiff granting the relief of specific performance of the agreement of sale on the ground that though the plaintiffs were having sufficient money and ready to pay the balance sale consideration at the time of registration of the document and that the defendant could not perform his part of the contract as there was a delay in vacating the premises by the tenant. Hence the present appeal by the defendant. 17. Sri V.L.N.G.K. Murthy, learned counsel for the defendant contended that the plaintiffs were not ready and willing to perform their part of the agreement. He also contended that the Fixed Deposit Receipts were standing in favour of the family members of the plaintiffs, but not in the name of the plaintiffs, which establishes that the plaintiffs did not have sufficient money as on the expiry of the agreement of sale i.e., 08-11-2003. He also contends that the tenant has already gave an undertaking vide letter, dated 13-08-2003, under Ex.B-6 to vacate the premises within three months. He also contends that the tenant has already gave an undertaking vide letter, dated 13-08-2003, under Ex.B-6 to vacate the premises within three months. He also contended that the plaintiffs were never ready and willing to perform their part of the agreement, having issued a telegram, dated 12-11-2003, i.e., after the expiry of the period of agreement of sale, that too, by imposing a new condition precedent to deduct the commission charges for obtaining the demand draft towards balance sale consideration. 18. Per contra, Sri Damodar Mundra, learned counsel appearing for the plaintiffs urged two main grounds. Firstly, the plaintiffs were always ready and willing to perform their part of the agreement by paying the balance consideration by way of marking Exs.A-10 to A-16, which are the bank certificates. Secondly, it is contended that the agreement had been frustrated by the tenant in not vacating the suit premises, which is contrary to Clause-7 of the agreement of sale under Ex.A- 1. 19. In support of his contentions, the learned counsel relied on a judgment rendered by a Division Bench of the apex Court in MANZOOR AHMED MAGRAY VS. GULAM HASSAN ARAM AND OTHERS(1). 20. Except the above, the other contentions are neither urged nor given much stress, as the same are neither relevant, nor in controversy in any manner. 21. Now the point that arises for consideration in this appeal is Whether the Court below erred in exercising its discretionary jurisdiction while granting the relief of specific performance of agreement of sale, dated 09-05-2003? 22. Since the whole controversy revolves around the terms and conditions of the agreement of sale, dated 09-05-2003, under Ex.A-1, it is appropriate to extract the terms and conditions of the agreement of sale, to the extent relevant, which are as under. “Terms and Conditions : 1................ 2............... 3. The Second Party shall pay the balance sale consideration of Rs.87,00,000/- (Rupees Eighty Seven Lakhs only) within 5 months [4 (four) months] from this day and get Registered Sale Deed / Agreement of Sale cum G.P.A. executed in favour of the Second Party or their nominee or nominees. “Terms and Conditions : 1................ 2............... 3. The Second Party shall pay the balance sale consideration of Rs.87,00,000/- (Rupees Eighty Seven Lakhs only) within 5 months [4 (four) months] from this day and get Registered Sale Deed / Agreement of Sale cum G.P.A. executed in favour of the Second Party or their nominee or nominees. The First Party agrees that before execution of Registered Agreement of Sale cum G.P.A. / Sale Deed or deeds, the schedule property at the spot be got measured and actual land existing at the spot will be taken and if land is less than 1176 Sq.yds., sale consideration shall be calculated for the actual land in proportionate thereof. 4. In case the Second Party fails to pay the balance sale consideration within five months from the date of this Agreement and get the Agreement of Sale cum G.P.A. / Sale Deed executed. Second Party shall pay interest at 12% per annum on the balance of the consideration for the extended grace period of and similarly if the First Party fails, to execute and register the Agreement of Sale cum G.P.A. / Sale Deed in spite of the Second Party ready to pay the balance Sale consideration. The Second Party at his option is entitled to claim specific performance of this Agreement or to claim 12% interest per annum on the advance paid by him. In case second party does not pay the balance of consideration amount even after the grace period of 2 months one month this agreement stands cancelled and the First Party will return the advance amount without any interest. 5. The sale will be free from all encumbrances, claims and disputes whatsoever. The First Party hereby declares and assures that there is no encumbrances, charge, claim and dispute in respect of the schedule property either of Government, local authorities or any other person, and the First Party has the power and authority to enter into this agreement of sale in the manner herein appearing and to convey the schedule property to the Second Party and further the First Party states there is no subsisting agreement of sale regarding the schedule property or any part thereof apart from this agreement of sale and there is no legal bar and impediment on this sale. 6. 6. It is agreed that on payment of entire sale consideration the First Party will execute and register Agreement of Sale cum G.P.A. or Sale Deed or Sale Deeds regarding the Schedule Property in favour of the Second Party or in favour of their nominee or nominees. 7. The First Party shall deliver the vacant physical possession of the schedule property at the time of execution and registering the Agreement of Sale cum G.P.A. or Sale Deed or Sale Deeds in favour of the Second Party or in favour of their nominee or nominees. 8................ 9. The First Party shall produce the non-encumbrance certificate of atleast 14 years preceding this date to the Second Party, in respect of schedule property and further shall produce no objection certificate from the Jubilee Hills Co-operative House Building Society Ltd., for Sale of Schedule Property. 10................ 11................ 12................ 13................ 23. In a suit specific perrformance, the concept of ‘time is the essence of contract’ and that readiness and willingness on the part of the plaintiff to perform his part of the contractual obligation, normally would go together. However, for the purpose of elaborating the merits on record, we will first deal with the aspect of readiness and willingness. Readiness and willingness: 24. The conspicuous fact starring at us is how to construe Exs.A-10 to A-16, which are the copies of Fixed Deposit Receipts, in order to show that the plaintiffs had sufficient monies available with them to pay the balance sale consideration while expressing their readiness and willingness. 25. The intriguing fact, in this regard, is that only Exs.A-10(a), A-11(a), A-13(a) and A-14(a) for a sum of Rs.11,50,000/-, Rs.16,00,000/-, Rs.11,50,000/- and Rs.16,00,000/-, respectively, for a total sum of Rs.55,00,000/-, were standing on the names of the plaintiffs, that too not in the individual capacity, but in the capacity as members of HUF. Whereas the obligation on the part of the plaintiffs to pay the balance sale consideration is for a sum of Rs.87,00,000/-. The remaining amount of Rs.36,00,000/- as shown in Exs.A-10 to A-16 is standing in the name of the other family members of the plaintiffs. Whereas the obligation on the part of the plaintiffs to pay the balance sale consideration is for a sum of Rs.87,00,000/-. The remaining amount of Rs.36,00,000/- as shown in Exs.A-10 to A-16 is standing in the name of the other family members of the plaintiffs. Therefore, the entire amount covered by Exs.A-10 to A-16 cannot be treated and construed as the money belonging to the plaintiffs absolutely and the amount available to the plaintiffs was Rs.55,00,000/- only as against the requirement of Rs.87,00,000/- as on the date of expiry of the agreement i.e., 08-11-2003. The other family members are not parties to the agreement of sale and hence the amounts standing on their names cannot be treated as the amount belonging to the plaintiffs, nor there is any evidence supporting the case of the plaintiffs, in this regard. In other words, the other family members were not examined as witnesses, as they are not parties to the agreement of sale. The properties, which stand in the name of the family members of the plaintiffs would and should be treated as their independent estate and such amounts cannot be clubbed with the monies of the plaintiffs for the purpose of discharging their liability under the agreement of sale. This is a strong circumstance which do not support the plaintiffs about their readiness and willingness, inasmuch as, they utterly failed to prove their solvency to pay the balance sale consideration of Rs.87,00,000/-. It is something rather expressing their willingness without there being readiness. 26. The law is well settled as held by the apex Court in JUGRAJ SINGH AND ANOTHER VS. LABH SINGH AND OTHERS(2) the plaintiff must plead and prove that he was always ready and willing to perform his part of essential terms of the contract. However, it was held that it is not necessary at all stages, i.e., from the date of agreement till the date of hearing of the suit, the said readiness and willingness need not be proved. The over all facts and the surrounding circumstances and the conduct of the parties, the plaintiff in particular, have to be taken into consideration in judging the readiness and willingness on the part of the plaintiff to perform his part of the contract. 27. In a similar case in MOHD. ABDUL RAZAK VS. The over all facts and the surrounding circumstances and the conduct of the parties, the plaintiff in particular, have to be taken into consideration in judging the readiness and willingness on the part of the plaintiff to perform his part of the contract. 27. In a similar case in MOHD. ABDUL RAZAK VS. B.VENKATESH @ VENKATAIAH(3), a Division Bench of this Court, to which one of us (Hon’ble Sri Justice D.Appa Rao) is a party, in para-23, dealt with Sections 16 and 20 of the Specific Relief Act, 1963 and observed that Section 16 lays down grounds on which the relief may be refused to the plaintiff on account of his conduct; and Section 20 direct the circumstances in which the discretion may or may not be exercised in granting the relief. 28. In Manzoor Ahmed Magray (1 supra), relied upon by the learned counsel for the plaintiffs as regards the readiness and willingness, the defendant entered into an agreement of sale of the suit land in favour of the plaintiff by paying some advance and the balance sale consideration was agreed to be paid at the time of execution of the sale deed and delivery of possession. Later, the defendant dishonestly refused to perform his part of the agreement as there was escalation in the price of the suit land. Therefore, apprehending that the defendants may alienate the suit land, the plaintiff filed the suit for specific performance. Though the above decision relied on by the learned counsel is unexceptionable, having regard to the facts and circumstances, the facts in that case are not applicable to the facts in the case on hand. 29. It is needless to say that the plaintiffs should always be ready and willing to perform their part of the agreement of sale. Therefore, we are of the view that the evidence adduced on behalf of the plaintiffs, particularly in order to show their readiness and willingness to perform their part of the agreement of sale is, absolutely, unsatisfactory and falsify their own contention. Hence, the findings recorded by the Court below in favour of the plaintiffs, in this regard, is absolutely perverse and irrational. In fact, this ground and the evidence on record on the aspect of readiness and willingness taken by the plaintiffs is false and self-destructive. Hence, the findings recorded by the Court below in favour of the plaintiffs, in this regard, is absolutely perverse and irrational. In fact, this ground and the evidence on record on the aspect of readiness and willingness taken by the plaintiffs is false and self-destructive. Therefore, the mere willingness devoid of readiness, as could be seen from the above facts itself is a sufficient reason to non-suit the defendant in a suit for specific performance. Hence, the finding recorded by the Court below, in this regard, is liable to be set aside. Time is the essence of the contract: 30. It is the specific case of the plaintiffs that they initially paid a sum of Rs.15,00,000/- as an advance as per the agreement of sale, dated 09-05-2003, which is an undisputed fact. Clause-3 of the agreement of sale postulates that the balance sale consideration of Rs.87,00,000/- was agreed to be paid initially within five (5) months thereafter, but the same was modified as four (4) months with the mutual consent. Both the parties have undisputedly contributed their signatures to the said modification in Clause-3 while reducing the time for payment of balance sale consideration from five (5) months to four (4) months (modified to four (4) months with the signatures of both the parties). Therefore, the time for payment of sale consideration would commence from the date of execution of the agreement of sale i.e., from 09-05-2003 and would expire by 08-09-2003. 31. Similarly, in Clause - 4 The second Party at his option is entitled to claim specific performance of this Agreement or to claim 12% interest per ‘annum. on the advance paid by him. In case second party does not pay the balance of consideration amount even after the grace period of 2 months to one month (modified to one (1) month by mutual consent signed by both the parties) this agreement stands cancelled and the First Party will return the advance amount without any interest.’ (emphasis supplied by us) 32. From the above, it is obvious that the plaintiffs can claim specific performance of the agreement of sale or can claim interest at 12% per annum on the advance paid by them. From the above, it is obvious that the plaintiffs can claim specific performance of the agreement of sale or can claim interest at 12% per annum on the advance paid by them. It further categorically indicates that if the plaintiffs does not perform their part of the agreement by paying the balance sale consideration after the grace period of one month, the agreement stands cancelled and the defendant would return the advance amount without any interest. 33. A perusal of the original agreement of sale reveals that the grace period of two (2) months initially agreed to was modified as one (1) month with the mutual consent of both the parties, which fact is also not in dispute. 34. From a conjoint reading of Clauses 3 and 4 of the terms and conditions of the agreement of sale would make it abundantly clear that the parties were of clear understanding that - firstly, the balance sale consideration of Rs.87,00,000/- shall be paid within four (4) months from the date of agreement i.e., 09-05-2003 and the grace period for payment of the balance sale consideration is one month and the failure to pay the balance sale consideration even in that grace period would result in cancellation of the agreement with a further obligation on the part of the defendant to repay the advance amount without any interest; secondly, if the failure is attributable to the plaintiffs, the plaintiffs shall pay interest at 12% per annum on the balance of sale consideration for the extended grace period; thirdly, even after the completion of the grace period of one month, if balance sale consideration is not paid, the agreement stands cancelled. 35. 35. In a famous book known as “A Treatise on the Specific Performance of Contracts” written by Sir Edward Fry, at para-142 of page 65, it is stated that “From what has been said it will be gathered that contracts of the kind now under discussion are divisible into three classes: (1) Where the sum mentioned is strictly a penalty-a sum named by way of securing the performance of the contract, as the penalty in a bond: (ii) Where the sum named is to be paid as liquidated damages for a breach of the contract: (iii) Where the sum named is an amount the payment of which may be substituted for the performance of the act at the election of the person by whom the money is to be paid or the act done.” The said categorization was found favour with by the apex Court in Manzoor Ahmed Magray (supra 1) . The author in the said work at para-1 126 of page-522, further stated that “The mere extension or giving of time, where time is of the essence of the contract, is only a waiver to the extent of substituting the extended time for the original time, and not an utter destruction of the essentiality of the time. And so where, by the terms of a contract. for the sale of the benefit of a building contract, a moiety of the price was to be paid on a specified day, and the vendors afterwards by letter gave the purchaser until a later (named) day to make the payment, but the money was not paid by that day, Jessel M.R. held that time was originally of the essence of the contract, and the letter only a qualified and conditional waiver of the original stipulation; and that, consequently, the vendors were entitled to treat the contract as at an end.” 36. The same is the view taken by a Division Bench of the Punjab High Court in BAL SAROOP VS. LAKHBIR SINGH(4), wherein it is held - “...........time was presumably the essence of the contract and the fact that the vendor granted some extension for specific period to execute the sale deed would not detract from the intention of making time of the essence.” 37. LAKHBIR SINGH(4), wherein it is held - “...........time was presumably the essence of the contract and the fact that the vendor granted some extension for specific period to execute the sale deed would not detract from the intention of making time of the essence.” 37. It is settled law that in contracts for sale of immovable property, time is not of the essence of the contract, unless the nature of the property and surrounding circumstances make it so. It was further observed that if a plaintiff is negligent and dilatory in carrying out his part of the contract for sale of immovable property, the plaintiff cannot get his contract specifically performed. 38. It is noteworthy to mention here that the third condition, from a bare perusal, appear to be totally unqualified. However, the belated payment of sale consideration i.e., during the grace period of one month after the completion of four months, would entitle the defendant to collect penal interest at 12% per annum. This condition is rather qualified. 39. In this context, it is further to be seen and as already noticed that the agreement of sale under Ex.A-1 commences from 09-05-2003 and would expire by 08-09-2003, which was the time originally agreed to. The grace period of one month, again would commence from 09-09-2003 and expire by 08-10-2003. 40. At this point of time, the significant point to be noticed is that both the parties have mutually agreed to extend the time, as was fixed originally, by one month, after completion of the grace period i.e., with effect from 09-10-2003, in which event the time for performance of the agreement of sale on the part of the plaintiffs to pay the balance sale consideration would come to an end by 08-11-2003. 41. It is borne out from the record that the plaintiffs did never express their readiness and willingness to perform their part of the agreement till 08-11-2003, on the other hand, on that day, the plaintiffs issued a telegram under Ex.A-2, which is in the following terms. “Please refer Agreement of Sale dated 9-5-2003 with respect to your house no.8-2-293/82/A/357, we are ready with money and to get the transaction completed on getting vacant possession of said house. Please comply the said agreement in our favour according to the terms agreed therein. Intimate date for completion.” 42. “Please refer Agreement of Sale dated 9-5-2003 with respect to your house no.8-2-293/82/A/357, we are ready with money and to get the transaction completed on getting vacant possession of said house. Please comply the said agreement in our favour according to the terms agreed therein. Intimate date for completion.” 42. On 09-11-2003 i.e., after the expiry of the extended grace period, the defendant issued a telegram, dated 10-11-2003, to the plaintiffs, which reads thus - “On the last day of already extended period on 8-11-2003 you have personally approached me and requested to further extend the time stipulation in agreement of sale dated 09-052003 from 09-11-2003 to one more month by expressing your inability to get the property registered as per the terms and conditions of the agreement since I have already agreed to extend the time from 9-10-2003 to 8-11-2003. 1 refused your request. But you have further requested to extend atleast five more days for which also I have refused. Thereafter I have not heard anything from your corner. Therefore, you are hereby requested to obtain demand draft in my favour for the balance sale consideration of Rs.87,00,000/- on a Nationalised..” 43. From the above, it appears, though the plaintiffs approached the defendant and sought extension of time by few more days, the same appear to have been refused as the grace period was already extended by one month. 44. At the cost of repetition, it is to be seen that the grace period was extended by one more month by mutual consent after the lapse of the original grace period of one month. It is further averred in the said telegram that nothing was heard from the plaintiffs in this regard. However, a demand was made to pay the balance consideration by 11-11-2003, which happens to be Monday. 45. Further, issuance of the above telegram under Ex.A-3 by the defendant was established by marking Exs.B-2 and B-3, which are the delivery certificates issued by the Postal authorities to both the plaintiffs. Therefore, we cannot find any reason to disbelieve the corroboratory evidence of Exs. B-2 and B-3 in order to show that the defendant issued the telegram on 09-11-2003 about the refusal to extend the period to fulfill the obligation on the part of the plaintiffs. Therefore, we cannot find any reason to disbelieve the corroboratory evidence of Exs. B-2 and B-3 in order to show that the defendant issued the telegram on 09-11-2003 about the refusal to extend the period to fulfill the obligation on the part of the plaintiffs. On the other hand, as already pointed out, the plaintiffs issued the telegram, dated 08-11-2003, during night at 8-13 p.m., after working hours, which is an unacceptable, imprudent and unnatural circumstance. 46. The first plaintiff in the cross-examination as PW-1, had stated that he issued Ex.A-2 telegram after 8-13 p.m. on 08-11-2003 i.e., during the night and after the working hours on 08-11-2003, which is the last day of the subsistence of the agreement of sale. In other words, the plaintiffs did not express their readiness and willingness during the subsistence of the agreement of sale, including the extended grace period of one month. Adding further, from the record, this is an earliest point when the plaintiffs raised a dispute or created an artificial cause of action in order to file a suit by way of making an allegation that a telegram has been issued under Ex.A-2 on the last day of expiry of the agreement of sale. To put it more precisely, the willingness on the part of the plaintiffs was obviously expressed virtually after the lapse of the period of agreement of sale, in which event the defendant is at liberty to invoke Clause-4 of the terms and conditions of agreement of sale, which makes the agreement stands cancelled, making it obligatory on the part of the defendant to repay the advance amount to the plaintiffs without any interest. 47. If really, the plaintiffs were keen in performing the contractual obligation in order to have the sale deed executed in their favour, they would have addressed the defendant reasonably well in advance. The purpose of issuing such telegram at the last hour of the last date of the agreement of sale itself is a suggestive factor to prove that the plaintiffs were not ready and willing to perform the contractual obligation and were trying to procrastinate the matter by one way or the other. 48. From the above, the conduct of the plaintiffs appears to be somewhat peculiar. 49. 48. From the above, the conduct of the plaintiffs appears to be somewhat peculiar. 49. It is to be further noted that the letter under Fx.A-5 was issued by the defendant on 11-11-2003 enclosing a cheque for a sum of Rs.15,00,000/- towards refund of the advance amount paid initially, while canceling the agreement of sale under Ex.A-1, and the plaintiffs issued the telegram under Ex.A-4 on 12-11-2003 i.e., after the expiry of the agreement of sale. A s an ordinary prudent persons, the plaintiffs ought to have know that the agreement was subsisting only upto 8-11-2003, but not beyond that date and any correcsondence beyond 8-11-2003 would be of no use, except in exceptional circumstances, like not receiving the communication or further extension of time by mutual consent etc. Doubtful circurnstanccs : 50. At the cost of repetition, it is to be seen that till the last date of expiry of the agreement of sale i.e., 08-11-2003, neither the plaintiffs expressed their readiness and willingness nor issued any notice to the defendant to see that the tenant is vacated, nor did give any particulars about his solvency to pay the balance sale consideration. In other words, the plaintiffs did not make any mention about the availability of funds in the shape of deposits in the bank, but, only for the first time during the course of trial, the first plaintiff detailed about the funds available in the bank. Even those details are, ex-facie, not true and valid. 51. Yet, another important aspect, which would add something more to the doubtful circumstance is, that on 12-11-2003 the plaintiffs have issued another telegram under Ex.A-4, stating inter alia, that in response to their telegram, dated 10-11-2003, nothing was heard from the defendant, that the defendant agreed to give vacant possession, but the property was not yet vacant and that the plaintiffs were ready to obtain Demand Drafts provided the defendant agrees deduction of the Demand Draft Commission from the amount payable to the defendant. 52. From the above Ex.A-4, it is to be noticed that till 12-11-2003, the plaintiffs did not take any Demand Draft in order to show their readiness and willingness, having received the telegram issued by the defendant on 11-11-2003. 52. From the above Ex.A-4, it is to be noticed that till 12-11-2003, the plaintiffs did not take any Demand Draft in order to show their readiness and willingness, having received the telegram issued by the defendant on 11-11-2003. It is further to be remembered that the telegram under Ex.A-4 was issued not during the subsistence of the agreement of sale, but subsequent to the expiry of the period of agreement of sale. 53. But in the present case, the plaintiffs very much having the knowledge of the period of subsistence of the agreement of sale and expiry of the same, imposed a new condition to take the Demand Drafts on condition of the defendant agreeing to deduct the commission charges from the balance of sale consideration, which is not available anywhere in the terms and conditions of agreement of sale. In other words, the condition of taking Demand Drafts for payment of balance sale consideration is totally a new one and in our view it is nothing but creation of a new condition only to gain more time. But, as already noticed, this correspondence is an introduction of a new condition precedent for taking Demand Drafts towards balance sale consideration (as if the agreement was in force) and, therefore, it is yet another doubtful circumstance. 54. The above aspects would only speak volumes about the conduct of the plaintiffs and that the conduct of the plaintiffs all through is doubtful and devoid of any prudence. 55. It is the specific contention of the learned counsel for the plaintiffs that the agreement of sale is frustrated by the tenant in not vacating the suit premises which is contrary to Clause-7 of the agreement of sale, dated 09-05-2003. 56. In this context, it is to be seen that the trial Court also recorded a finding in favour of the plaintiffs that the suit premises was not vacated till the end of Novermber, 2003 by the tenant and, therefore, there is no possibility for the defendant to perform his part of the contract. Significantly, it is not the contention of the plaintiffs that the alleged non-vacation of the suit premises by the tenant has to be attributed to the defendant only. Significantly, it is not the contention of the plaintiffs that the alleged non-vacation of the suit premises by the tenant has to be attributed to the defendant only. Even assuming that the tenant did not vacate the suit premises resulting in non-handing over of the vacant possession to the plaintiffs, the same cannot be a ground, in strict sense, for the plaintiffs to insist for a decree for specific performance. 57. Even otherwise also, it is the specific case of the defendant that the tenant addressed a letter, dated 13-08-2003 under Ex.B-6 that he is making alternative arrangement and vacate the premises somewhere in September, 2003. The said letter reveals the clear intention of the tenant to vacate the suit premises as agreed to and informed by the defendant to get the premises vacated in the month of September, 2003, notwithstanding Clause-9 of the tenancy agreement between the defendant and the tenant, which allows three months notice from the defendant for re-occupation. But, as already pointed out, by letter, dated 11-11-2003, the agreement was cancelled by the defendant and in his deposition, he stated that in order to avoid any further loss of rents, he permitted the tenant to continue for some more time, that too, in a portion of the suit premises. However, the tenant had, admittedly, vacated the suit premises by the end of November, 2003. 58. It is further to be seen from the cross-examination of PW-1 that he has been making independent efforts by contacting the tenant through mediators to vacate the premises. But, in order to prove the said efforts allegedly made by the plaintiffs, nobody has been examined. Therefore, what remains is the correspondence between the defendant and the tenant. The said correspondence and the conduct on the part of the defendant and the tenant clearly appears to be genuine. 59. Therefore, we are of the view that the contention of the learned counsel is wholly untenable and the finding recorded by the trial Court that it is impossible for the defendant to perform his part of the contract is not sustainable and unwarranted. In fact, impossibility to perform the contract and the decree passed by the Court below for specific performance are incompatible. 60. In fact, impossibility to perform the contract and the decree passed by the Court below for specific performance are incompatible. 60. Therefore, on all the aspects discussed above, we are of the considered view that the reasoning and the findings recorded by the Court below is absolutely unsustainable and hence, the same is liable to be set aside and accordingly set aside. 61. In the result, the appeal is allowed dismissing the suit. However, the plaintiffs are entitled for refund of the amount paid at the time of agreement of sale. Accordingly, the defendant is directed to refund the said amount of Rs.15,00,000/- (Rupees fifteen lakhs only) with interest at the rate of 6 (six) per cent per annum from the date of filing of the suit till realisalion. However, there shall be no order as to costs. --X--