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2008 DIGILAW 190 (AP)

M. Satyanarayana v. Makkan Bharathi

2008-03-07

G.YETHIRAJULU

body2008
JUDGMENT:- This appeal has been preferred by the first defendant in O.S. No.95 of 1997 on the file of V Senior Civil Judge, City Civil Court, Hyderabad. The respondents are the plaintiff and defendants 2 and 3. The plaintiff filed the suit for specific performance of 'agreement of sale in respect of the suit schedule property requesting the Court to direct the first defendant to execute a registered sale deed after receipt of the balance of sale consideration and if he fails to do the same, the Court to execute the sale deed. 2. The averments of the plaint are briefly as follows: The plaintiff is the tenant of the plaint schedule mulgi situated at Jambagh, Hyderabad. One late Smt. Yellamma is the owner of the suit property, and she inducted the plaintiff as a tenant by receiving a sum of Rs.6,OOO/- towards advance, through the lease agreement dated 26.3.1983. Subsequently, late Yellamma bequeathed her property to the first defendant, who is the only son of her and she died on 17.7.1987. The second defendant is the wife of first defendant and the third defendant is their son. On behalf of the third defendant, as No.1034 of 1989 was filed by the second defendant as next friend for partition and separate possession of his share in the property covered by Door No.05-01-261 and for rendition of accounts claiming that the property belongs to the joint family. The third defendant also filed LA. No.914 of 1989 seeking a direction to the plaintiff and other tenants for deposit of rents till the disposal of the suit. The first defendant is the absolute owner of the property by virtue of the Will Deed dated 21.2.1986 executed by his mother Yellamma. He offered to sell the plaint schedule property to the plaintiff. The plaintiff agreed to purchase the same for the sale consideration of Rs.l ,40,000/-. The first defendant executed an agreement of sale dated 22.3.1991 in favour of the plaintiff after receiving an advance amount of Rs.20,000/-. On 31.3.1991 he received further sum of Rs.2,000/- towards part of the sale consideration. The plaintiff agreed to purchase the same for the sale consideration of Rs.l ,40,000/-. The first defendant executed an agreement of sale dated 22.3.1991 in favour of the plaintiff after receiving an advance amount of Rs.20,000/-. On 31.3.1991 he received further sum of Rs.2,000/- towards part of the sale consideration. Ever since the date of agreement, the plaintiff was willing to pay the balance of sale consideration and obtain a regular sale deed, but the first defendant was postponing the same on one pretext or the other and finally on 5.12.1993 the defendant agreed in the presence of PW.2 and one Satyanarayana Singh to execute a registered sale deed after disposal of the suit filed by third defendant for partition in O.S. No.1034 of 1989. Thereafter, the plaintiff learnt that the first defendant came to an understanding with the defendants 2 and 3 and in pursuance of that the second defendant allowed the partition suit dismissed for default and filed a petition for restoration to see that the second defendant shall not execute a registered sale deed. The plaintiff issued a notice to the first defendant on 27.8.1996 asking to receive the balance sale consideration and executed a registered sale deed in terms of the agreement. He got issued a reply notice on 2.9.1996 denying the execution of the agreement with a view to avoid the execution of the registered sale deed. Since the plaintiff has no other go, he filed the present suit for the reliefs as stated above. 3. The first defendant filed a written statement with the following averments in brief. The plaintiff was the tenant of the first defendant in respect of the mulgi covered by the suit schedule. Though his mother inducted the plaintiff as a tenant, there was no payment of any amount towards advance under any oral agreement in the year 1985. After the death of Yellamma, the first defendant became the absolute owner being the only legal heir of Yellamma. The plaintiff committed default in payment of rents. Therefore, an eviction petition covered by R.C. No.625 of 1996 was filed on the file of I Additional Rent Controller, Hyderabad and the same was pending enquiry. The first defendant never offered to sell the plaint schedule property to the plaintiff and he never executed the agreement of sale covered by Ex.A.1 on 22.3.1991 and no advance sale consideration was received by him. The first defendant never offered to sell the plaint schedule property to the plaintiff and he never executed the agreement of sale covered by Ex.A.1 on 22.3.1991 and no advance sale consideration was received by him. The agreement is a fabricated document. The second defendant and himself are not in talking terms for the past several years, therefore, the question of any understanding or settlement between them does not arise. The first defendant gave suitable reply to the notice issued by the plaintiff. When the plaintiff committed default in payment of rents, the first defendant filed the eviction petition and as a counterblast, the plaintiff filed the present suit on the basis of a fabricated agreement of sale. As per the recitals of Ex.A.1, the sale deed was to be executed on or before 21.3.1992 and as the time was essence of the contract, the suit is hopelessly bad and barred by limitation. Since the partition suit was pending as on the date of the alleged agreement of sale, it is hit by the principle of lis-pendency and the agreement has no legal sanctity. The suit is, therefore, liable to be dismissed with costs. 4. The defendants 2 and 3 filed separate written statement pleading ignorance about the transaction between the plaintiff and the first defendant. They further pleaded that the first defendant did not execute any agreement of sale in favour of the plaintiff and there was no settlement between them and the first defendant with respect to O.S. No.1034 of 1989. Since the first defendant is not the absolute owner of the property, he has not tried to enter into the agreement of sale with the plaintiff for the sale of any portion of the property. The plaintiff cannot seek enforcement of the said agreement in respect of the suit schedule property. The suit is, therefore, liable to be dismissed. 5. On the basis of the above pleadings, the trial Court framed the following issues and commenced the trial. (i) Whether the suit agreement of sale dated 22.3.1991 is true, valid and enforceable? (ii) Whether the valuation and Court fee paid is sufficient? (iii) Whether the suit claim is within the period of limitation? (iv) Whether the plaintiff is always ready and willing to perform his part of contract? (v) Whether the plaintiff is entitled for specific performance of agreement of sale? 6. (ii) Whether the valuation and Court fee paid is sufficient? (iii) Whether the suit claim is within the period of limitation? (iv) Whether the plaintiff is always ready and willing to perform his part of contract? (v) Whether the plaintiff is entitled for specific performance of agreement of sale? 6. During the course of trial, the plaintiff examined PWs.1 and 2 and marked Exs.A1 to AS. The defendants examined DW.1 and no exhibits were marked. The trial Court after considering the oral and documentary evidence accepted the plea of the plaintiff and decreed the suit as prayed for, through its judgment, dated 27.12.2002. Being aggrieved by the said judgment and decree, the first defendant preferred the present appeal challenging its validity and legality. 7. The first defendant contended in the grounds of appeal that the time is essence of contract covered by Ex.A.1, that since the plaintiff failed to pay the balance sale consideration to the first defendant within the stipulated time, the advance sale consideration is liable to be forfeited and the agreement shall be treated as cancelled; that since the suit was not filed within three years from the date of committing fraud, the suit is barred by limitation; that the plaintiff failed to prove Ex.A.1 agreement of sale and he cannot identify the signatures on Ex.A.1 and also failed to send Ex.A.1 to the handwriting expert for comparison of the signatures of the first defendant with the disputed signatures, therefore, the burden lies on the plaintiff when the defendant took a plea that the agreement of sale is a rank forgery. Therefore, the trial Court wrongly negatived the pleas raised by the first defendant and decreed the suit. 8. In the light of the contentions raised by the appellant/first defendant, the following are the points that arise for consideration by this Court. (i) Whether Ex.A.1 agreement of sale is true, valid and binding on the first defendant and whether it can be enforced against him? (ii) Whether the plaintiff is always ready and willing to perform his part of contract ? (iii) Whether the time is the essence of the contract and whether the suit is barred by limitation? (iv) Whether the plaintiff is entitled for the specific performance of agreement of sale as prayed for? and (v) To what relief? Point No. (i): 9. (ii) Whether the plaintiff is always ready and willing to perform his part of contract ? (iii) Whether the time is the essence of the contract and whether the suit is barred by limitation? (iv) Whether the plaintiff is entitled for the specific performance of agreement of sale as prayed for? and (v) To what relief? Point No. (i): 9. According to the plaintiff, the mother of the first defendant inducted him into the possession of the suit schedule mulgi as a tenant. Subsequently, she died after executing the Will in favour of the first defendant. The plaintiff alleged that on 22.3.1991 the first defendant executed an agreement of sale for the suit property for consideration of Rs.l,40,000/- and received an advance of Rs.20,000/- on the date of agreement and Rs.2,000/- on 31.3.1991. When the first defendant failed to execute the sale deed after receipt of the balance of sale consideration, he filed the present suit. The first defendant denied his intention to sell the property. He also denied either execution of the agreement of sale or receipt of part of the sale consideration. Therefore, the initial burden is on the plaintiff to establish that the first defendant voluntarily expressed his intention to sell the property and he voluntarily executed the agreement of sale after receiving the advance amount. 10. Ex.A.1 is the agreement of sale. In EX.A.I it is mentioned that the first defendant agreed to sell the property and the plaintiff agreed to purchase the same for the sale consideration of Rs.1,40,000/-. It is further mentioned that an amount of Rs.20,000/- is paid towards advance sale consideration and the first defendant agreed to receive the balance of sale consideration within the period of one year from the date of agreement i.e., by 31.3.1992. It is also mentioned that the time is essence of contract. If the purchaser fails to pay the balance of sale consideration within the stipulated time, the advance sale consideration stands forfeited and the agreement shall be treated as cancelled. In the schedule, the property is described as mulgi No.5-1-261 comprising an extent of 50 square yards situated at Jambagh, Hyderabad. It was attested by two witnesses. The date of agreement is found to be corrected from the month 4' as 3'. It is an unregistered agreement of sale. 11. In the schedule, the property is described as mulgi No.5-1-261 comprising an extent of 50 square yards situated at Jambagh, Hyderabad. It was attested by two witnesses. The date of agreement is found to be corrected from the month 4' as 3'. It is an unregistered agreement of sale. 11. The plaintiff gave a notice to the first defendant on 27.8.1996 and in the said notice it is mentioned that the plaintiff is the tenant of the first defendant. He agreed to sell the property for a sum of Rs.1,40,000/- on 20.3.1991. The plaintiff claimed that he is the tenant of the first defendant. The plaintiff is always ready and willing to pay the balance of sale consideration and he is ready to get the sale deed executed in his favour. The first defendant is postponing the same by representing that the agreement of sale can be performed only after the disposal of the partition suit filed by his son claiming share in the property. He also mentioned that the first defendant and his wife arrived at a settlement and in pursuance of that they are purposefully causing delay in getting the matter settled. Therefore, the first defendant is called upon to receive the balance of sale consideration and execute the sale deed in favour of the plaintiff in accordance with law. If the first defendant fails to do so, he will be constrained to approach the Court of law for necessary relief. The said notice was given for the first time on 27.8.1996 about 5Y2 years after the agreement of sale and it was not mentioned in the notice that the first defendant executed the agreement of sale or made an endorsement for receipt of the part of the sale consideration. The recitals of the notice indicate as if it is an oral agreement. 12. The first defendant gave a reply notice on 2.9.1996 wherein he mentioned that he did not agree to sell the property to the plaintiff and did not receive any advance amount on 22.3.1991 and a further sum of Rs.2,000/- on 31.3.1991. The plaintiff is the tenant in respect of the disputed mulgi, but not the entire premises bearing No.5-1-261. The wife of the first defendant filed suit on behalf of their son covered by O.S. No.1034 of 1989 before IV Additional Judge, City Civil Court, Hyderabad for partition. The plaintiff is the tenant in respect of the disputed mulgi, but not the entire premises bearing No.5-1-261. The wife of the first defendant filed suit on behalf of their son covered by O.S. No.1034 of 1989 before IV Additional Judge, City Civil Court, Hyderabad for partition. A direction was given by the said Court to all the tenants to deposit the rents into the Court. The plaintiff became willful defaulter in paying the rents, therefore, he is liable to be evicted. The first defendant filed an eviction petition before the Rent Controller, City Civil Court, Hyderabad and it is pending. The plaintiff projected the imaginary picture for getting the property as if he was the agreement holder. There is no settlement or disposal of the partition suit in view of the compromise. There was no agreement as claimed by the plaintiff? 13. In the light of the above correspondence, it has to be examined whether the evidence is supporting the version of the plaintiff. 14. The plaintiff in support of his version examined himself as PW.1 and examined one of the attestors as PW.2. PW.1 deposed that the first defendant's mother Yellamma inducted him to suit property as a tenant, through a lease agreement dated 26.3.1983. He paid Rs.6,000/- as advance. The first defendant succeeded to the property of his mother after her death and he used to pay the rents to the first defendant. The first defendant offered to sell the suit schedule property. He entered into an agreement of sale covered by Ex.A.1 on 22.3.1991 and paid Rs.20,000/-. On 31.3.1991 he paid a further sum of Rs.2,000/-. He was demanding the first defendant to execute the registered sale deed, but he was postponing the same on the pretext that the defendants 2 and 3 filed O.S. No.1034 of 1989 for partition and promised to execute the sale deed later. PW.2Nanda Singh and one Satyanarayana Singh were present when the first defendant made promise to execute the sale deed. He gave legal notice to the first defendant asking to execute the sale deed and the first defendant gave a reply to his notice. He deposited Rs.1,18,000/- on 28.10.1997 after passing ex party decree in the suit. PW.1 further deposed that he was running a welding shop since 1983. He was not in the practice of maintaining accounts of the business. He was getting Rs.100/- to Rs.150/- per day. He deposited Rs.1,18,000/- on 28.10.1997 after passing ex party decree in the suit. PW.1 further deposed that he was running a welding shop since 1983. He was not in the practice of maintaining accounts of the business. He was getting Rs.100/- to Rs.150/- per day. He has no other source of income and the maintenance of family is from the said income only. He cannot give the plinth area of the mulgi. He cannot give the boundaries of it, but its measurements are 12 x 10 feet. The first defendant has shown him some documents of the year 1991 for the first time. The mediator Vittala Rao Deshpande read over the documents and explained to him that the property was in the name of first defendant's mother Yellamma. He cannot give the address of said person. He does not know the whereabouts of Vittala Rao Deshpande. The agreement of sale was prepared on the ten-rupee judicial stamp paper. The stamp paper was purchased by the first defendant in his name of 22.3.1991. He does not know the stamp vendor's name. Two days after the agreement, the first defendant handed over the same to him. Vittala Rao Deshpande got typed the matter of the agreement. He was present at the time of its preparation. PW.2 and others whose particulars are not known were also present at the time of agreement. The agreement was prepared at the office of Vittala Rao Deshpande at Abids. As the first defendant took him to that place, he does not know whether Vittala Rao Deshpande was the document writer or advocate. PW.2 was present when he paid the amount. Vittala Rao Deshpande did not sign on the agreement. The agreement was executed in the afternoon. He paid the amount to the first defendant in the presence of advocate Vittala Rao Deshpande at his office situated in Abids. The agreement of sale was signed by the first defendant, PW.2 and at that time two other persons were also present in the said office. He also signed at the same time. He does not know exactly what was mentioned in the agreement. At the time of agreement of sale no suit was pending against him for eviction. The first defendant filed eviction case against him, but he does not know the number, though he fought in the A TC. He also signed at the same time. He does not know exactly what was mentioned in the agreement. At the time of agreement of sale no suit was pending against him for eviction. The first defendant filed eviction case against him, but he does not know the number, though he fought in the A TC. He did not file the agreement in the said R.C. case. He admitted that in the appeal he has not referred either the lease deed or agreement of sale. He did not contest the said suit in O.S. No.1034 of 1989. After knowing that the partition suit is pending, he entered into an agreement with the first defendant. The extent of the suit property is about 50 square yards, out of the total extent of 200 square yards. He cannot give the boundaries for 50 square yards or the suit property. There was no demarcation of measurements of 50 squat yards out of the total extent. He is not aware of the market value of the property of that area during 1991. He did not enquire about the market value before entering into the agreement. In the agreement there is no schedule. He is not aware whether there is any schedule to the present suit or not. He does not know the contents of Ex.A.2 notice. He does not remember the signature of the first defendant. He cannot say who signed on Ex.A.3 acknowledgment. He cannot identify the signature of the first defendant on Ex.A.6. He cannot identify the signatures on EX.A.1 agreement. The first defendant took a plea that the agreement of sale is forged one. He took PW.2-Nanda Singh and one Satyanarayana Singh/with him to the house of the first defendant for talks on 5.12.1993. Since the agreement time was expiring he took them to the first defendant for talks. Satyanarayana Singh prepares Ganesh idols and Nanda Singh was a mechanic at Putlibowli, Hyderabad. Previously he was not doing anything by the date of evidence. He told about the agreement to Satyanarayana Singh, whereas PW.2 was present at the time of its execution. He paid the amount at the house of the first defendant and then both of them went to the office of Srinivas Deshpande to writ the agreement. Previously he was not doing anything by the date of evidence. He told about the agreement to Satyanarayana Singh, whereas PW.2 was present at the time of its execution. He paid the amount at the house of the first defendant and then both of them went to the office of Srinivas Deshpande to writ the agreement. In the agreement, there is no mention with regard to the payment of balance of sale consideration, in whose presence it was paid and what was the mode of payment. It was also not mentioned in the agreement that in view of the agreement he need not pay the amount. He has not measured the mulgi and he cannot deny or admit the suggestion that its measurements are 7 x 8 feet measuring an extent of 7.3 square yards. He denied a suggestion that the market value of the land as on the date of agreement was bout Rs.5,00,000/-. He denied a suggestion that in order to avoid eviction from the disputed mulgi the present suit was filed as counterblast. 15. PW.2, Nanda Singh deposed that he is one of the attesters for the agreement and the agreement was executed in his presence. The first defendant promised to execute the sale deed in favour of the plaintiff after settlement of the case filed against him. The plaintiff is always ready and willing to perform his part of contract, but the first defendant is always avoiding the same. In the cross-examination, he stated that he is a resident of Dhoolpet. Ex.A.1 bears the signatures of the plaintiff and the first defendant in all the pages. He cannot identify the signatures on the last page of EX.A.1 including that of the attester No.2. He saw the first defendant signing only at the time of agreement and not earlier or subsequent to that. The agreement was drafted at the advocate's office. The office of the advocate is situated at Abids, but he does not know the name of the advocate. The plaintiff took him to the advocate. 3 or 4 persons were also present at the place of agreement, but he does know their names. The first defendant was there in the office by the time he went there. The agreement was drafted in his presence. He signed on the agreement, which was on a stamp paper. The plaintiff took him to the advocate. 3 or 4 persons were also present at the place of agreement, but he does know their names. The first defendant was there in the office by the time he went there. The agreement was drafted in his presence. He signed on the agreement, which was on a stamp paper. He does not remember whether the advocate read the agreement or not. Since he was asked to sign the agreement he signed on it, though the contents were not read over to him. Talks were held for purchase of 50 square yards of the property at Rs.1,30,000/-. The first defendant brought the stamp paper at the time of agreement. He does not know what else was mentioned in the agreement apart from sale of 50 square yards for Rs.1,50,000/-. After scribing the agreement by the advocate on the stamp paper, he signed on it. So also the plaintiff, the first defendant and himself signed on the stamp paper. He does not remember whether anybody else signed on it. He also agreed that his signature is not there on the stamp paper. 16. Against the above evidence, DW.1 deposed that he insisted the plaintiff to deposit the rents and the plaintiff paid the rents upto February 1995 and thereafter he committed default in payment of rents and as such he initiated the eviction proceedings against the plaintiff. As a counterblast to R.C., the plaintiff filed the present suit with all false allegations. The agreement of sale was concocted and created by the plaintiff. A suit was filed to grab the property without iota of truth. In the cross-examination, he denied a suggestion that he agreed to sell the property and received the advance of Rs.20,000/-. 17. The above evidence makes it clear that Srinivas Deshpande who got prepared Ex.A.1 was not examined. Though there was another attester, he was also not examined. No pressing need was shown which made the firs defendant to offer to sell the property. No reason was mentioned in EX.A.1 about the proposed utilization of the money. The plaintiff did not explain as to why the other attester and the person, who got the agreement of sale typed were not examined. The plaintiff stated that he does not know the local market value. No reason was mentioned in EX.A.1 about the proposed utilization of the money. The plaintiff did not explain as to why the other attester and the person, who got the agreement of sale typed were not examined. The plaintiff stated that he does not know the local market value. He did not disclose as to who settled the price for the land and what is the prevailing market value as on that date. No man would either sell or purchase the property without ascertaining the market value and when the property covered by door number is 200 square yards, why the first defendant offered to sell the property covered by the mulgi only. The defendant did not produce any agreement of lease and also failed to produce the written statement filed in RC. to show that he took the plea of agreement of sale at the earliest time. 18. It is an undisputed fact that the first defendant filed RC, for eviction against the plaintiff on the ground that he committed default in payment of rents. It is the contention of the first defendant that the plaintiff filed the present suit as a counterblast to the RC. proceedings to avoid the amount and eviction of the building. The plaintiff stated that he does not know the contents of agreement of sale and also cannot identify the signatures of the persons, who signed on Ex.A.1-agreement. The plaintiff has not taken any steps to send the documents to the handwriting expert because it is the specific contention of the first defendant that he did not execute any agreement of sale and what are the circumstances that made him not to mention in the legal notice, as to why he failed to mention that the first defendant agreed to sell the land under an agreement of sale. When PW.1 stated that the sale consideration was Rs.1,40,000/-, PW.2 stated that the sale consideration was Rs.1,50,000/-. There was no consistency regarding the sale consideration also and the place of payment. It was also not clarified by the plaintiff as to where the advance amount was given towards the sale consideration and by what denomination. It is also seen from Ex.A.1 that when the mulgi was only 7 x 8 fee~ how could he mention in the agreement of sale that the extent was 50 square yards. It was also not clarified by the plaintiff as to where the advance amount was given towards the sale consideration and by what denomination. It is also seen from Ex.A.1 that when the mulgi was only 7 x 8 fee~ how could he mention in the agreement of sale that the extent was 50 square yards. Had the plaintiff confined his claim only in respect of the mulgi, there would have been a justification that he offered to purchase the said property and the first defendant agreed for the same, The first defendant specifically stated that though he did not file any application to send the documents to handwriting expert, the evidence adduced by the plaintiff is not definite that it was signed by the first defendant. The plaintiff failed to prove that there was dire necessity for the first defendant to offer to sell the land and there was bargaining regarding the rate by ascertaining the information from known persons or persons who are dealing with the properties. The plaintiff also failed to produce the written statement filed in R.C. to show that he took the plea of agreement of sale at the earliest time. He does not know the boundaries. He does not know the name of the advocate, who prepared the agreement of sale. The sale consideration was not paid in the presence of the attester from the scribe and there is no mention that the attesters were informed about the payment of sale consideration. The evidence placed by the plaintiff is not sufficient to hold that the first defendant voluntarily executed the agreement of sale despite the pendency of R.C. against the defendant for eviction for non-payment of rent. The trial Court simply by observing that PW.2 supported the evidence of PW.1 decreed the suit. The plaintiff issuing registered notice to the defendant for execution of sale deed was on 27.8.1996, which was subsequent to the first defendant filing eviction petition covered by R.C. No.625 of 1996. The silence on the part of the plaintiff for more than five years is a strong circumstance to suspect the genuineness of the agreement of sale. The plaintiff gave notice to the defendants for the first time on 27.8.1996 though the alleged agreement was said to be written on 22.3.1991. In the said notice, there is no mention about the execution of the agreement. The plaintiff gave notice to the defendants for the first time on 27.8.1996 though the alleged agreement was said to be written on 22.3.1991. In the said notice, there is no mention about the execution of the agreement. It was simply mentioned that it was agreed between the parties that the defendant has to sell the property for Rs.1,40,000/-. The plaintiff adduced evidence that when he requested the defendant along with mediators, it was agreed to execute the sale deed after disposal of the pending suit, but there was no mention about the endorsement in the evidence. The plaintiff did not mention the area of mulgi though it was mentioned as 50 square yards in Ex.A.1. He stated that he cannot give the boundary or plinth area of mulgi. 19. After going through the entire material and the judgment of the trial Court, I am of the view that the plaintiff failed to prove that the agreement of sale was executed by the first defendant in the circumstances mentioned by him agreeing to sell the property for Rs.1,40,000/- and received advance amount of Rs.20,000/- at the time of the agreement and Rs.2,000/- towards further advance. 20. This point is accordingly answered against the plaintiff and in favour of the first defendant. 21. Though the plaintiff mentioned in the plaint that he is always willing to perform his part of contract, the conduct of the plaintiff clearly indicates that he did not take any steps to perform his part of contract for a period of 5Y2 years, despite a specific clause in the agreement of sale that time is the essence of the contract and the period of one year only was fixed for obtaining the sale deed. 22. The learned Counsel for the appellant/first defendant submitted that the conduct of the plaintiff did not establish that he was ready and willing to perform his part of the contract and in support of his contention, the learned Counsel for the appellant cited the following judgments. (i) In Chunduru Padmavathi v. Chunduru Narasimha Rao, 2000 (2) ALD 106 , a learned Single Judge of this Court while considering Section 16 of the Specific Relief Act observed as follows : "In the instant case, the time originally fixed in the contract for performance was one month. (i) In Chunduru Padmavathi v. Chunduru Narasimha Rao, 2000 (2) ALD 106 , a learned Single Judge of this Court while considering Section 16 of the Specific Relief Act observed as follows : "In the instant case, the time originally fixed in the contract for performance was one month. By the subsequent notice Ex.B.1, the defendant called upon the plaintiff, to complete the transaction within one week from the date of the notice. Out of the total sale consideration of Rs.5,750.00, the plaintiff paid only a meager sum of Rs.200.00 as advance on the date of the agreement. He did not pay the balance of sale consideration despite the notice EX.B.I. He filed the suit after the lapse of more than two years. During this period, there would have been a substantial increase in the value of the suit property. There are no equities whatsoever in favour of the plaintiff and it will be inequitable to grant the relief of specific performance to the plaintiff. Court that the plaintiff is ready with the balance of sale consideration. If really the plaintiff was ready with the balance of sale consideration and the defendant was dodging, one would have expected the plaintiff to issue a notice to the defendant in reply to Ex.B.1 intimating his readiness with the balance of sale consideration and calling upon the defendant to execute and register the sale deed. But he did not nothing of the kind." Therefore, this Court held that the suit for specific performance is liable to be dismissed. (ii) In Sardar Amarjeet Singh v. Nandu Bai and others, 1998 (5) ALD 697 (DB), a Division Bench of this Court held that mere averment in the plaint or pre-suit notice that he was at all material times ready and willing to perform his part of the contract is not sufficient without there being any material that he gave his readiness and willingness to the other party. Though time may not be the essence in a contract of sale of immovable property, the performance of obligations cannot be postponed for an unreasonably long length of time unless there is a satisfactory explanation for such delay. 23. In the present case also, the plaintiff did not offer to pay the balance of sale consideration for 5 Y2 years and did not adduce any evidence that he was ready with money to perform his part of contract. 23. In the present case also, the plaintiff did not offer to pay the balance of sale consideration for 5 Y2 years and did not adduce any evidence that he was ready with money to perform his part of contract. He issued the notice only after D.1 filing eviction case against him. 24. In the light of the above facts and circumstances of the present case and in the light of the legal position, this point is answered against the plaintiff and in favour of the defendant. Except a bald assertion in the plaint that the plaintiff has been all the while ready and willing to perform his part of the agreement and has been demanding the defendant to execute the registered sale deed as per the tem1S of the agreement but the defendant Point No. (iii): though pretends to be ready is not willing to execute the registered sale deed, nothing 25. It is the contention of the first more is brought on record to satisfy the defendant that the\suit is barred by limitation. The plaintiff is contending that he is always ready to perform his part of contract and the period of limitation starts only from the date of reply given by D.1 denying the execution of document. In support of his contention, the learned Counsel for the appellant relied on the following judgments: (i) In Smt. Chand Rani (dead) by LRs. The plaintiff is contending that he is always ready to perform his part of contract and the period of limitation starts only from the date of reply given by D.1 denying the execution of document. In support of his contention, the learned Counsel for the appellant relied on the following judgments: (i) In Smt. Chand Rani (dead) by LRs. v. Smt. Kamal Rani (dead) by LRs., AIR 1993 SC 1742 , a Larger Bench of the Supreme Court while dealing with Section 16 of the Specific Relief Act held as follows: "Where in an agreement to sell the immovable property it was stipulated that amount in part was to be paid within 10 days of the execution of the agreement and the balance has to be paid at the time of registration of deed and it was agreed that the vendor would redeem the property which was mortgaged and also obtain the income tax clearance certificate and the word 'only' was used twice i.e., to qualify the amount and to qualify the period of payment of such amount i.e., ten days it was held that the intention of the parties was to make time as essence of contract and in such case, when the purchaser was not ready and willing to pay the amount in part as agreed, before delivery of possession and income tax clearance certificate and redemption of property, it was contrary to the conditions of the agreement and the purchaser was not entitled to the specific performance of contract." (ii) In K.s. Vidyanadam and others v. Vairavan, AIR 1997 SC 1751 , the Supreme Court held as follows: One or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. In the instant case may be the parties knew of the circumstance regarding rising prices but they have also specified six months as the period \ within which the transaction should be completed. The said time-limit may not amount to making time the essence of the contract but it must yet have some meaning. Not for nothing could such time-limit would have been prescribed. The said time-limit may not amount to making time the essence of the contract but it must yet have some meaning. Not for nothing could such time-limit would have been prescribed. Can it be stated as a rule of law or rule of prudence that where time is not made the essence of the contract, all stipulations of time provided in the contract have no significance or meaning or that they are as good as non-existent? All this only means that while exercising its discretion, the Court should also bear in mind that when the parties prescribe certain time-limit(s) for taking steps by one or the other party, it must have some significance and that the said time-limit(s) cannot be ignored altogether on the ground that time has not been made the essence of the contract (relating to immovable properties). In the instant case from the date of agreement to sale till the date of suit notice the purchaser was sitting quiet without taking any steps to perform his part of the contract under the agreement though the agreement specified a period of six months within which he was expected to purchase stamp papers, tender the balance amount and call upon the vendors to execute the sale deed and deliver possession of the property. Further, the delay was coupled with substantial rise in prices - according to the vendors three times- between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the purchaser. "It cannot be said that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the 26. In support of his contention, the period of limitation notwithstanding the time learned Counsel for the respondent relied on limits stipulated in the agreement for doing the following judgments: (i) In Dutta Seethamahalakshmamma and others v. Yanamadala Balaramaiah and another, 2003 (4) ALD 381 = AIR 2003 AP 430 , a, Division Bench of this Court held as follows: "In the instant case of an agreement to sell immovable property, the vendee paid certain amount by way of advance. It was further agreed that the vendee shall pay balance consideration on or before the date fixed by the parties and the vendor shall get the sale deed registered on that date on receipt of the full consideration. However, the vendee paid some amount even after expiry of the fixed date and acknowledged the receipt of amount without raising any objection. No time was fixed in the endorsement for payment of the remaining balance. Held, the fact that the vendor accepted part payment even after the expiry of the fixed date for payment of full consideration and absence of any specific time fixed subsequently while acknowledging part payment, indicated that no time was fixed for the performance of the contract. Therefore, the second limb of Article 54 is attracted and the plaintiffs vendees are entitled to file the suit within three years from the date of notice of refusal of performance by vendor and the limitation could not be computed as commencing from the date fixed by the parties, though the conduct of the plaintiffs in filing the suit seeking specific performance of the agreement to sell after a period of 18 years from date of agreement appears to be unreasonable, it cannot be held that their right to enforce the specific performance is barred by limitation, since the suit was filed within 3 years of notice of refusal of performance by the vendor." (ii) In Pancharan Dhara and others v. Monmatha Nath Maity (D) by LRs and another, 2006 (4) ALD 18 (SC) = AIR 2006• SC 2281, the Supreme Court while considering an appeal for specific performance of agreement held that when the period for execution of deed of sale extended by conduct of parties, time to file the suit shall be deemed to start running only when the plaintiff has noticed that performance has been refused. The facts of the case covered by the above decision are that the second respondent is a company. The company held and possessed the suit property and it intended to sell the suit property~ The respondents 1 and 2 having came to know of the said intention on the part of the company entered into an agreement for sale and paid a sum of Rs.6,000/- to the company by way of advance. The balance amount was to be paid within a period of 14 months. The balance amount was to be paid within a period of 14 months. As the title of the second respondent in respect of the suit property was not clear, the company instituted a suit against some persons who were claiming title over the property. In the said suit, a compromise petition was filed and a consent decree was passed on the basis of the compromise. The first respondent thereafter issued the said letters asking the company to execute and register a sale deed in his favour. The company used to reply assuring the first respondent that it would do so. The company refused to execute and register a deed of sale in favour of the first respondent on the plea that the. same became barred by limitation. A suit for specific performance of the said agreement for sale, dated 18.4.1971 was filed. The factum of pendency of the suit has been mentioned by the company in the agreement of sale. The trial Court decreed the suit in favour of the plaintiff and the appeal preferred by the company was also dismissed by the• first appellate Court. The second appellate Court dismissed the suit by allowing the appeal. Regarding the period of limitation, the Supreme Court while dismissing the appeal observed as follows: "In terms of Article 54 of the Limitation Act, the period prescribed therein shall begin from the date fixed for the performance of the contract. The contract is to be performed by both the parties to the agreement. In this case, the first respondent was to offer the balance amount to the Company, which would be subject to its showing that it had a perfect title over the property. We have noticed hereinbefore that the Courts below arrived at a finding of fact that the period of performance of the agreement has been extended. Extension of contract is not necessarily to be inferred from written document. It could be implied also. The conduct of the parties in this behalf is relevant. We have noticed hereinbefore that the Courts below arrived at a finding of fact that the period of performance of the agreement has been extended. Extension of contract is not necessarily to be inferred from written document. It could be implied also. The conduct of the parties in this behalf is relevant. Once a finding of fact has been arrived at, that the time for performance of the said contract had been extended by the parties, the time to file a suit shall be deemed to start running only when the plaintiff had notice that performance had been refused." (iii) In S. Brahmanand and others v. K.R. Muthugopal (D) and others, 2005 (6) ALD 74 (SC) = AIR 2006 SC 40 , the Supreme Court observed that in a suit for specific performance, the original agreement of sale had fixed date for performance. But by subsequent letter of the defendant requesting to postpone the performance to future date without fixing any further date for performance and when the plaintiff is not insisting on performance forthwith and accepted the postponing of performance, the Court held that the time for performance stands extended as the case is covered by the second part of Article 54 of the Limitation Act. (iv) In Mst. Sugani v. Rameshwar Das and another, AIR 2006 SC 2172 . In the said case, the Supreme Court observed that in a suit for specific performance of agreement of sale against the plea of limitation, when the agreement not fixing any date for performance and when the agreement itself was denied by defendants and when the suit was filed within few months after receipt of the notice about the execution of the sale deed in favour of a third party, the suit is not barred by limitation. If the pleadings mention that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint the plaintiff shall not be denied the relief. The Supreme Court further held as follows: 'The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleading manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief." 27. The facts covered by the above judgments are different from the present suit. Therefore, the judgments are not applicable to this case. 28. The plaintiff alleged to have obtained the sale agreement on 22.3.1991 and till 27.8.1996 he did not take any steps to demand the first defendant to execute the sale deed offering to pay the amount, within the stipulated time of one year. There are two endorsements on the agreement of sale. The first endorsement dated 31.3 .1991 is regarding the payment of Rs.2,000/- mentioning that the balance of sale consideration was to be paid by 21.3.1992. The second endorsement was regarding the extension of time for payment of the sale consideration till 21.3.1993 without making any further advance. There is no whisper by the plaintiff either in the plaint or in the evidence that the first defendant extended the time of agreement of sale and there is no mention of the date Yenuga Pavan Kumar v. Anil Kumar Agarwal and others (A. Gopal Reddy, 1. ) (DB) 245 of second endorsement and nobody spoke the essence of the contract and there is no as to when the second endorsement was proof of extension of time. As the plaintiff made, The suit was filed in the year 1997, failed to prove the endorsements either Even from the date of second endorsement through PW.2 or anybody else, the trial in which the date was fixed as 21.3.1993, Court rightly came to the conclusion that the suit ought to have filed within three the suit is barred by limitation, years from the date of said endorsement. Therefore, there is any amount of doubt about the endorsement and as the time is the essence of the contract on account of the parties mentioning in the agreement that the balance of consideration will be paid Point No. (iv): within one year from the date of agreement and sale deed will be obtained. If the time is not the essence of contract, there would not have been any endorsement for extension of time. If the time is not the essence of contract, there would not have been any endorsement for extension of time. In the light of the above circumstances, I am of the view that the suit is barred by limitation. 29. The balance was agreed to be paid within one year i.e., on or before 21.3.1992 from the date of execution. It was mentioned in one of the clauses that the time is the essence of the contract. There is also a clause in the agreement, which reads as follows: "that in case of the purchaser fails to pay the balance sale consideration to the vendor within the stipulated time, the defendant's sale consideration paid by the purchaser to the vendor shall stand forfeited and this agreement shall be treated as cancelled." 30. The first endorsement does not extend the period for execution of the document. Only it mentions about the payment of Rs.2,000/- and it does not contain the date. In the second endorsement, scribe's name was not mentioned. No attesters signed and nobody else was examined to prove the second endorsement. The second endorsement does not contain the date as to why it was written. It neither indicates the payment of balance amount nor any part of the amount. 32. This point is, accordingly, answered against the plaintiff and in favour of the first defendant. 33. In view of the findings in Point Nos.(i) to (iii), the plaintiff is not entitled for specific performance of agreement of sale, covered by Ex.A.1, and the suit is liable to be dismissed. 34. In the result, the appeal is allowed and the decree and judgment of the trial Court dated 27 .12.2002 is set aside by dismissing the suit with costs throughout.