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2008 DIGILAW 399 (AP)

K. Mahadeva Rao v. Vaztha Tabassum Ghouse

2008-06-23

G.YETHIRAJULU

body2008
JUDGMENT: This second appeal has been preferred by the defendant in O.S. No.1489 of 2003 on the file of the II Senior Civil Judge, City Civil Court, Hyderabad. 2. The plaintiff filed the suit for specific performance of an agreement of sale with an alternative relief of directing the defendant to pay Rs.3,50,000/- as damages with interest and costs. 3. The averments of the plaint are briefly as follows: The plaintiff entered into an agreement of sale to purchase the suit schedule property for a sale consideration of Rs.3,50,000/-. An agreement of sale was executed by the defendant in favour of the plaintiff on 30-08-2001. The plaintiff paid an amount of Rs.50,000/- as advance at the time of the sale agreement. Originally one, Laxman Rao Jaghirdhar was the owner of the suit land. After his death, his wife Chakilam Rajya Laxmi and daughter N. Padmasani Devi inherited the same and they sold an extent of Acs.2.00 in favour of the defendant's father through a document of 1962. There were some encroachments in the suit schedule site. It was agreed between the plaintiff and the defendant that the plaintiff should clear the encroachments by investing her own resources. The plaintiff invested his funds and got the encroachments cleared and also applied for mutation in M.C.H. and got Municipal Number and applied for electricity connection. The plaintiff constructed a temporary room for watchman and employed a person to look after the property from encroachments. When land grabbers tried to encroach the property, the plaintiff gave a complaint to the Police and it was registered as crime No.133 of 2003. The plaintiff is always ready and willing to perform her part of contract, but the defendant has been promising to execute the registered sale deed in favour of the plaintiff, but postponing the same under some pretext or other. Due to increase in value of the land, the defendant changed his mind and got issued a registered notice dated 21-07-2003 alleging that the plaintiff is not ready and willing to perform her part of contract and cancelled the agreement of sale, forfeiting the advance paid by the plaintiff. The plaintiff got issued a suitable reply on 25-07-2003. The defendant committed breach of contract. The plaintiff is ready to pay the balance sale consideration of Rs.3,00,000/- Hence, the suit for specific performance of an agreement of sale. 4. The plaintiff got issued a suitable reply on 25-07-2003. The defendant committed breach of contract. The plaintiff is ready to pay the balance sale consideration of Rs.3,00,000/- Hence, the suit for specific performance of an agreement of sale. 4. The defendant filed a written statement with the following averments in brief: The averments of the plaint are denied and the plaintiff is put to strict proof of the same. The defendant's name is wrongly mentioned as Madhava Rao instead of K. Mahadeva Rao. On the same date, two agreements were taken. One agreement is for an extent of 20.06 square yards and another for 285 square yards forming part of Sy. No.128/3 situate at Mallik Enclave. The sale consideration for 20.06 square yards is mentioned as Rs.1,59,000/-, while the sale consideration for 285 square yards is mentioned as Rs.3,50,000/-. The advance alleged to have been paid is Rs.1,00,000/- for the first item and Rs.50,000/- for the second item. The plaintiff in collusion with her husband played fraud upon the defendant and could secure the signatures of the defendant without bringing to the notice of the defendant about the real facts mentioned in the agreement of sale dated 30-08-2001. The application made by the plaintiff to the Corporation for mutation and allotment of the municipal number is not to the knowledge of the defendant. The plaintiff's giving complaint to the Police and registering of the crime is not to the knowledge of the defendant. In the suit agreement, there was a condition that the balance sale consideration is to be paid in two installments. The plaintiff did not come forward to pay at least one installment, out of the balance sale consideration. The conduct of the plaintiff clearly establish that she is not ready and willing to perform her part of contract for getting the registered sale deed. The original agreement was entered on 30-08-2001. It is agreed that the balance sale consideration of Rs.3,00,000/- has to be paid into in two equal installments within one year from the date of agreement, but the notice was given by the defendant on 21-07-2003 i.e., after a lapse of the period prescribed for the payment of installments of the balance sale consideration. The plaintiff did not come forward as to how she has proved that she is ready and willing to perform her part of contract. The plaintiff did not come forward as to how she has proved that she is ready and willing to perform her part of contract. The plaintiff did not come to the Court with clean hands. The plaintiff is, therefore, not entitled for any relief including relief of damages. The plaintiff by taking advantage of acquaintance of her husband with the defendant, created the suit document by involving the defendant in the litigation. The defendant, therefore, requested to dismiss the suit with costs. 5. On the basis of the averments in the pleadings, the trial Court framed appropriate issues. The plaintiff examined P.Ws.1 to 3 and marked Exs.P1 to P17. The defendant examined D.W.1 and no documents were marked. The trial Court, after considering the evidence, came to a conclusion that the plaintiff is always ready and willing to perform her part of contract under the agreement of sale; that the defendant failed to perform his part of agreement, therefore the plaintiff is entitled for specific performance of suit agreement of sale and decreed the suit in favour of the plaintiff directing the defendant to execute the sale deed immediately after plaintiff deposited the remaining sale consideration of Rs.2,00,000/- with interest at 12% per annum from the date of the agreement till the date of deposit in the Court. The plaintiff was directed to deposit the amount on or before 01-02-2007. 6. The defendant being aggrieved by the judgment and decree of the trial Court preferred A.S. No.87 of 2007 before the III Additional Chief Judge, City Civil Court, Hyderabad and the appeal was also dismissed by confirming the judgment. The defendant being aggrieved by the judgment of the appellate Court preferred the present appeal. 7. The following are the substantial questions of law to be considered by this Court in the Second Appeal: (i) Whether Ex.A2 agreement of sale is not discharged on account of the unauthorized and illegal alteration made by the plaintiff? (ii) Whether the plaintiff can be said to be ready and willing to perform her part of contract in spite of her default in payment of two installments as per the conditions 3 and 4 in Ex.A2 agreement and not offering the money even thereafter compelling the appellant to issue Ex.A8 legal notice? (ii) Whether the plaintiff can be said to be ready and willing to perform her part of contract in spite of her default in payment of two installments as per the conditions 3 and 4 in Ex.A2 agreement and not offering the money even thereafter compelling the appellant to issue Ex.A8 legal notice? (iii) Whether the respondent is guilty of tampering Ex.A2 agreement of sale and default of payment of installments by creating documents covered by Exs.A4 to A7 and Ex.A12 to A17 behind the back of the appellant and is entitled for the equitable relief of specific performance? (iv) Whether the time is not the essence of contract covered by Ex.A2 agreement of sale? and (v) Whether there is perversity in the judgment of the Court below by failing to appreciate correctly the oral and documentary evidence adduced by both parties and whether the judgments are liable to be set aside? 8. The learned counsel for the appellant submitted that there is a material alteration in the agreement of sale; that the plaintiff is not ready and willing to perform her part of contract and as the time is the essence of the contract and when the plaintiff failed to perform her part of contract within the stipulated time, she is not liable for the equitable relief of specific performance. 9. The learned counsel, M.V. Durga Prasad, further submitted that the conduct of the plaintiff is very much important in specific performance suit, since she introduced changes in the schedule and played fraud on the Court. He further submitted that the plot number of the suit schedule property is not mentioned in the plaint schedule, whereas it is mentioned in the agreement of sale. 10. The above allegations were not made in the written statement filed at the earliest time. Therefore, it has to be verified from the record whether there is any supporting material in favour of the defendant regarding the contentions raised by him. 11. It is the specific case of the plaintiff that the defendant executed an agreement of sale in her favour and took an advance of Rs.50,000/-. She was ready and willing to perform her part of contract by offering money to the defendant, but the defendant was postponing to receive the amount and execute the sale deed in favour of the plaintiff. She was ready and willing to perform her part of contract by offering money to the defendant, but the defendant was postponing to receive the amount and execute the sale deed in favour of the plaintiff. In the agreement of sale it was mentioned that the vendor offered to sell the property and the plaintiff agreed to purchase the same for a consideration of Rs.3,50,000/-. An advance of Rs.50,000/-was paid towards part of sale consideration. The vendor agreed to receive the balance of sale consideration of Rs.3,00,000/- at the time of execution of the sale deed; that the purchaser shall pay the balance of sale consideration within a period of one year from the date of this agreement in two equal instalments; that the purchaser on verification of the document satisfied with regard to the title and possession of the vendor; that the vendor declares that the plot No.3 offered to sell is free from all encumbrances; and that the vendor deliver physical possession of the plot to the plaintiff on the date of agreement. As seen from the terms and conditions of the agreement, there is no default clause or clause for forfeiture of the amount. It is also not mentioned in the agreement of sale that the time is the essence of the contract. In the cross examination, the plaintiff mentioned that after taking possession of the property, she made an application to the municipal corporation for municipal number in her name. She has to pay the balance amount of Rs.3,00,000/- in two instalments. She has not paid the first instalment amount, as the defendant is not ready to receive the same. She has not addressed any letter to the defendant to receive the first installment. She denied a suggestion that the time is the essence of the contract, though it was not mentioned in the agreement. She also denied the suggestion that she failed to pay the sale consideration, therefore, the agreement was cancelled. P.W.2, the husband of the plaintiff, also gave similar evidence. P.W.3 is the person who was present at the time of negotiations for the sale transaction and was present at the time of execution of the agreement of sale. He was also present at the time of delivery of possession of the property to the plaintiff. P.W.2, the husband of the plaintiff, also gave similar evidence. P.W.3 is the person who was present at the time of negotiations for the sale transaction and was present at the time of execution of the agreement of sale. He was also present at the time of delivery of possession of the property to the plaintiff. In the cross- examination he is stated that he has not signed as a witness in the agreement of sale. He was informed by the plaintiff that she was ready to pay the balance of sale consideration. 12. The defendant got himself examined as D.W.1. In the legal notice issued by the defendant it was mentioned that the plaintiff brought draft agreement of sale for an extent of 285 square yards at Mallik Enclave covered by Sy.No.128/3, Yousufguda, Hyderabad. After taking the signatures of the defendant on the agreement, the husband of the plaintiff made alterations in the agreement, especially mentioning plot No.3 in operative portion of clauses 1 and 6. The defendant did not go through the contents of the agreement by reposing confidence on the plaintiff's husband. The plaintiff failed to pay the consideration in two installments and failed to comply the said condition. Except the amount paid on the date of agreement of sale, the plaintiff has not bothered to come forward. The plaintiff created unnecessary complications to the defendant, as she is fully aware that the suit schedule property does not form part of M/s. Rajiv Nagar, therefore the defendant requested to cancel the agreement of sale executed in favour of the plaintiff. In the reply notice covered by Ex.A9, the plaintiff mentioned that the defendant got prepared the agreement of sale after consulting his counsel. The stamp papers were also purchased by the defendant. The plaintiff entered into agreement of sale to purchase the said plot for a total consideration of Rs.3,50,000/- and paid Rs.50,000/-. The plaintiff further mentioned in the reply notice that the defendant after receiving the part of sale consideration made the plaintiff to spend considerable amount to clear the encroachments and now cannot unilaterally cancel the agreement, much less forfeit advance amount. The plaintiff is always ready and willing to perform her part of contract. The plaintiff further mentioned in the reply notice that the defendant after receiving the part of sale consideration made the plaintiff to spend considerable amount to clear the encroachments and now cannot unilaterally cancel the agreement, much less forfeit advance amount. The plaintiff is always ready and willing to perform her part of contract. Therefore, she requested the defendant to receive the sale consideration and register sale deed within ten days, failing which, she will be considered to approach the Court for the said purpose. 13. The defendant as D.W.1 mentioned that the name of the defendant is wrongly described as K. Madhava Rao instead of K. Mahadeva Rao. His name was correctly shown as K. Mahadeva Rao as vendor in the agreement of sale covered by Ex.A2. Ignoring the said fact, the plaintiff wrongly described his name as K. Madhava Rao, instead of K. Mahadeva Rao. The plaintiff failed to take any steps to correct the typographical error. The plaintiff has gone to the extent of making alterations by incorporating the plot number. The plaintiff highhandedly obtained municipal number without any title to the property. Therefore, he is not entitled to get any relief of specific performance, as the suit is barred by time, on account of the condition that the time is the essence of the contract. The plaintiff also failed to pay the sale consideration in two installments as mentioned in the agreement. Therefore, it is an indication that the plaintiff was not ready and willing to perform her part of contract. In the cross- examination, D.W.1 mentioned that he agreed to sell the plaint schedule property in favour of the plaintiff through Ex.A2 agreement of sale and it bears his signature. He does not remember whether he purchased the stamp papers on which Ex.A2 agreement was written. On verification of the agreement of sale, he agreed that the stamp papers obtained in his name. Ex.A2 agreement was drafted at Malakpet, thereafter his signatures were taken at his residence at Mallik Enclave. He also agreed that vacant physical possession of the plaint schedule property was given to the plaintiff. There was no mention in the notice covered by Ex.A8 that agreement was drafted at one place and he signed in the agreement at another place. He denied that the sale agreement does not contain any condition that the time is the essence of the contract. There was no mention in the notice covered by Ex.A8 that agreement was drafted at one place and he signed in the agreement at another place. He denied that the sale agreement does not contain any condition that the time is the essence of the contract. He denied the suggestion that he is not entitled to forfeit the advance amount and cancel the agreement. The amount of Rs.1,50,000/- shown as paid in Ex.A3 does not represent the amount payable under Ex.A2 and the details are not mentioned in Ex.A3. 14. The learned counsel for the plaintiff submitted that the plaintiff was always ready and willing to perform her part of contract and when the plaintiff offered to pay the amount, the defendant did not receive the same and as there is no stipulation of a particular date for payment of the money, or the registration of the sale deed, the time is not the essence of the contract and there is no such condition in the agreement of sale also. In the cross- examination, the defendant admitted the genuineness of the agreement of sale. He voluntary signed on the agreement and received the advance amount, therefore, the plea that there was an alteration in the agreement of sale; that his signature was obtained by the plaintiff without informing about the contents of the documents etc., were disbelieved by the Courts below. 15. The learned counsel for the appellant relied on judgment in P.BABU RAO Vs. S.NEELAGRIVA SASTRY, 1994 (3) ALT 669. The learned single Judge of this High Court rendered the above Judgment in a case of oral agreement, but since there is a written contract between the parties in the present suit, the judgment is not applicable to the facts of the present case. 16. In MOHAMMED IBRAHIM v. MOHAMMED ABDUL RAZZAK, 2007 (3) ALD 617 = AIR 2007 AP 294 a Division Bench of this High Court observed as follows: "Apart from it, the conduct of the appellant would show that there were laches on his part and he was never ready to perform his part of contract at any material point of time. When the agreement stipulates that the appellant must express his readiness and willingness to perform his part of contract within six months, he did not issue any notice that he was ready with the money and demanded the vendor to come for registration. When the agreement stipulates that the appellant must express his readiness and willingness to perform his part of contract within six months, he did not issue any notice that he was ready with the money and demanded the vendor to come for registration. On the other hand, the defendant issued notice after notice, asking the appellant to pay the amount even by extending time under Ex.A2. Instead of informing that he was ready with balance of amount, he refused to receive the said notice evident from Ex.A3 postal cover. The appellant for the first time in Ex.A8 long one year three months after execution of the agreement, for the first time insisted for production of clearance certificate from the Income Tax Department." 17. There is no dispute about the principle laid down by the Division Bench of this Court, but the facts of the present case are not similar to the facts covered by the above decision. In the present case the notice was issued by the defendant canceling the agreement of sale, but not demanding the balance of sale consideration. It is the contention of the plaintiff that he is always ready and willing to perform her part of contract and when the first installment amount was offered by her, the defendant refused to receive the same and issued the notice canceling the agreement of sale. But on the face of the evidence adduced by both parties, there is no indication that the plaintiff was not ready and willing to perform her part of contract. 18. In KROVIDI KAMESWARAMMA v. KUDAPA BALARAMAYYA, 1998 (5) ALD 68 (DB) the Division Bench of High Court of A.P. held as follows: "The plaintiff who had set up a false plea of payment of a major portion of the purchase money was not only disentitled to the discretionary relief on the ground that he has set up a false plea but also on the ground that, that discloses that he was not ready and willing to perform his part of the contract. The principle that Impari delicto potior est condition defentis is also to the effect that in case of equal guilt the defendant alone should succeed. So on application of this principle also the plaintiff must fail for setting up a false plea. The principle that Impari delicto potior est condition defentis is also to the effect that in case of equal guilt the defendant alone should succeed. So on application of this principle also the plaintiff must fail for setting up a false plea. From all the above principles it is clear that the plaintiff who does not come to the Court with clean hands cannot succeed. From the above discussion it is clear that the first plaintiff has taken a false plea with a view to show that he has paid substantial sum of Rs.30,000/- which in fact he did not pay thereby he is exposed to falsehood while he is expected to come with clean hands before seeking equitable relief of specific performance. It also implies that he is not ready and willing to perform his part of the contract as per the terms of the agreement at all material times. As he has not come with clean hands, he is not entitled to the relief of specific performance." 19. In NALAMATHU VENKAIYA v. B.S.NEELKANTA, 2005 (5) ALD 767 = AIR 2005 AP 535 , a Division Bench of this Court held that Plaintiff making only oral assertion to defendant that he is ready to pay Rs.32 lakhs, but no deposit was made. Such oral assertion itself is not sufficient to say that plaintiff was ready and willing to perform his part of contract. Deposit of amount by virtue of the order cannot be taken as material by Court to come to a conclusion that the plaintiff was ready and willing to perform his part of contract. Discretionary relief under Section 16 (c) of the Act cannot be granted. 20. In C.PANDURANGA RAO v. V.SHYAMALA RAO, 1994 (4) ALD 204 (DB), a Division Bench of this Court held as follows: " In a suit for specific performance the plaintiff should plead and prove that he was always ready and willing to perform his part of the contract. Section 16 of the Indian Contract Act also ordains the same. Mere taking of a plea in the plaint is not sufficient, the plaintiff should prove with cogent evidence his readiness and willingness to perform his part of the contract at all material times i.e., from the date of the contract till the date of the suit. The evidence on record negates such a plea." 21. In N.P.THIRUGNANAM v. Dr. Mere taking of a plea in the plaint is not sufficient, the plaintiff should prove with cogent evidence his readiness and willingness to perform his part of the contract at all material times i.e., from the date of the contract till the date of the suit. The evidence on record negates such a plea." 21. In N.P.THIRUGNANAM v. Dr. R. JAGAN MOHAN RAO, AIR 1996 SC 116 , a Division Bench of the Supreme Court held as follows: "To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. Where the plaintiff neither deposited the amount of sale consideration nor furnished the bank guarantee as per the direction of the trial Court and he was never ready with either money or resources to fulfil his part of contract, the dismissal of suit on finding of facts that plaintiff was not ready and willing to of facts that plaintiff was not ready and willing to perform his part of contract was justified." 22. There is no dispute regarding the legal position referred to above but in the present case the plaintiff was ascertaining from the beginning that he is ready and willing to pay balance sale consideration. There was evidence to the effect that she offered the amount to the defendant, but he refused to receive the same on account of hike in the prices of the land. In view of the explanation given by the plaintiff and in view of her offer to pay the balance of sale consideration, it cannot be said that the plaintiff is not ready and willing to perform her part of contract. 23. The respondent's counsel also relied on some judgments regarding the scope of Section 100 of the Code of Civil Procedure. There is no dispute about the legal proposition. Therefore, it is not necessary to go into the details of the decisions referred by the learned counsel for the respondent. 24. 23. The respondent's counsel also relied on some judgments regarding the scope of Section 100 of the Code of Civil Procedure. There is no dispute about the legal proposition. Therefore, it is not necessary to go into the details of the decisions referred by the learned counsel for the respondent. 24. There was concurrent finding of fact by the Courts below and I do not find any ground to interfere with the question of fact. So far as the substantial question of law is concerned, I do not find any exclusive substantial question of law to be considered, except that the time is the essence of the contract. I have already observed that the Courts below specifically mentioned that there was no default clause or that there was no clause that the time is the essence of the contract. In the absence of such clause, stipulation of periods for payment of the balance of sale consideration by itself cannot be treated as time is the essence of the contract. 25. In the light of the above circumstances, I do not find any merits in the appeal. In the result, the Second Appeal is dismissed by confirming the judgments of the Courts below. No order as to costs.