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Karnataka High Court · body

2008 DIGILAW 761 (KAR)

Subramani v. Zaheerunnisa

2008-12-08

RAM MOHAN REDDY

body2008
JUDGMENT ( 1. ) AN unsuccessful plaintiff is before Court invoking Section 96 of the Code of Civil Procedure calling in question the judgment and decree dated 25.9.2000 in O.S. No. 2012/85 of the 11th additional City Civil Judge, Bangalore City, partly decreeing the suit, while rejecting the relief of specific performance of agreement of sale and restraining the defendants by way of a permanent injunction from disturbing the plaintiff's peaceful possession and enjoyment of the suit schedule property until dispossessed, in accordance with law. ( 2. ) FACTS in brief are: (a) The appellant instituted O.S. 2012/85 for specific performance of the agreement of sale dated 25.12.1983 and permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property being a site measuring 54 ft. Each to West and 42 ft. North to South, carved out of Sy. Nos. 18/2, 19, 20 and 21 of Agrahara Thimmasandra Village, known as c. K. Chinnappa Garden, Bangalore North Taluk, within the territorial jurisdiction of the Bruhat Bangalore Mahanagara Palike. The plaintiff and respondents 1 to 4 entered into an agreement dated 25.12.1983 Ex. P1 for sale of the suit property. The plaintiff having paid Rs. 5,000/- towards part sale consideration of Rs. 45,000/- the vendors delivered the original title deeds and put the plaintiff in physical possession of the suit property by way of part performance of the contract. The vendors specifically agreed to receive the balance sale consideration of Rs. 40,000/- at the time of registration of the sale deed, to be executed five months after securing the permissions of the authorities under Urban Land (Ceiling and Regulation) Act, 1976, for short 'ulcr Act' and the Income-tax Act, 1961, as well as the change of khata of the property into their name from that of the deceased husband of the 1st vendor, at the cost of the purchaser. The purchaser's obligation was to pay the layout, conversion charges and bear the vendors cost for securing the permissions. Time for completion of the sale was agreed to be extended by two months in case of delay in securing the permissions which might in turn, cause delay in payment of the conversion charges. The purchaser's obligation was to pay the layout, conversion charges and bear the vendors cost for securing the permissions. Time for completion of the sale was agreed to be extended by two months in case of delay in securing the permissions which might in turn, cause delay in payment of the conversion charges. (b) It is the assertion of the plaintiff that on being put in possession of the suit property, erected a cattle shed to tether cattle, paid the betterment charges on 25.4.1985 acknowledged by receipt Ex. P7; secured a change of khata on 2.5.1984 by katha certificate Ex. PS; paid the corporation taxes for the period 1977 to 1983-94 on 24. 8. 1984 by receipt Ex. P6 and thereafter for the future years under" receipts Exs. P4 and P5. (c) It is the allegation of the plaintiff that the vendors issued notice dated 6. 3. 1985 Ex. Pll through their Counsel calling upon the plaintiff to comply with his part of the contract by paying the balance sale consideration on or before. 18.3.1985, failing which legal action would follow, which was respondent to by a written reply dated 16.3.1985 Ex. P12 calling upon the vendors to execute the conveyance deed and receive the balance sale consideration on 23.5.1985 by securing the draft sale deed five days prior thereto. By yet another letter dated 4.5.1985 Ex. P14, the plaintiff is said to have requested the vendors to go over the Sub-registrar's office on 23.5.1985 and execute the deed of conveyance. (d) It is the further allegation of the plaintiff that the vendors by a telegram dated 18. 5. 1985 Ex. P27 declined to accede to the request of the plaintiff and stated that the agreement of sale Ex. P1 was rescinded on 6. 3. 1985 and 23.8.1985, while calling upon the plaintiff to return the original documents of the suit property. The purchaser instituted the suit for specific performance and permanent injunction, arraigning as defendants Nos. 1 to 4, the vendors, who, when served with notice of the Suit, having remained absent and unrepresented, were placed ex parte. The Interlocutory application filed by the 5th respondent to be impleaded as a necessary and proper party defendant, claiming to have purchased the suit schedule property under a sale deed dated 30. 5. 1985 Ex. 1 to 4, the vendors, who, when served with notice of the Suit, having remained absent and unrepresented, were placed ex parte. The Interlocutory application filed by the 5th respondent to be impleaded as a necessary and proper party defendant, claiming to have purchased the suit schedule property under a sale deed dated 30. 5. 1985 Ex. D2 executed by defendants 1 to 4, when allowed was impleaded as party defendant No. 5 and resisted the Suit by filing written statement dated 13.12.1989 inter alia admitting that defendants 1 to 4 were the owners of the suit schedule property, while denying the factum of plaintiff being in possession of the suit property and that the sale of the suit property in his favour, by the deed of conveyance ex. D2 was preceded by permission from the Competent Authority under the ULCR Act, by letter dated 25. 5. 1985 and that the reliefs in the suit filed on 26.6.1985 were rendered infructuous. In addition a plea was advanced that the plaintiffs default, disentitled specific performance of the agreement of sale. ( 3. ) THE trial Court in the premise of pleadings of the parties framed the following six issues: 1. Whether the plaintiff proves that defendants 1 to 4 have executed agreement to sell dated. 25.12.1986 and delivered possession of the same? 2. Whether the plaintiff proves that he is in a lawful possession of the suit property? 3. Whether the 5th defendant proves that he purchased the property under sale deed dated 25. 5. 1985 and is in possession? 4. Whether plaintiff is always ready and willing to perform his part of obligation? 5. Whether the 5th defendant proves that plaintiff is the defaulter and not ready and willing to perform his part of obligation? 6. Whether the defendant proves that plaintiff put up construction after the completion of Sale? ( 4. ) THE trial Court recorded the depositions of the plaintiff as PW-1, marked 27 documents as Exs. P1 to P27, while for the defendants, the 5th defendant was examined as DW-1 and another witness by name K.N. Prakash as DW-2 and marked 4 documents as Exs. Dl to D4. The trial court having regard to the material on record, assessed the evidence both oral and documentary, recorded findings in the affirmative over the issue nos. P1 to P27, while for the defendants, the 5th defendant was examined as DW-1 and another witness by name K.N. Prakash as DW-2 and marked 4 documents as Exs. Dl to D4. The trial court having regard to the material on record, assessed the evidence both oral and documentary, recorded findings in the affirmative over the issue nos. 1, 2 and 5; partly affirmative on issue No. 3, and negatived issue Nos. 4 and 6. The trial Court observed that as the 5th defendant was the owner of the suit property pursuant to the sale deed Ex. D2, was entitled to take possession of the same from the plaintiff, in accordance with law and accordingly, partly decreed the suit by Judgment and decree dated 25. 9. 2000. Sri C.V. Nagesh, learned Senior Counsel for the appellant advances the following contentions: i. The 5th respondent claiming to be the purchaser of the suit schedule property under the sale deed Ex. D2 executed by the respondents 1 to 4, having full knowledge of the appellant's claim to the property under the agreement of sale Ex. P1 was disentitled, in law, to resist the suit. According to the learned Senior Counsel, a subsequent agreement holder to purchase the suit property, is entitled in law, to advance all the pleas that the vendor is entitled to, having put himself in the shoe of the vendor, while a purchaser of the property under a deed of conveyance is entitled, in law, to prove that he is a bona fide purchaser, for value without notice of the initial agreement of sale. In support of the said contention reliance is placed upon the decision of the Apex Court in M. M. S. Investments, madurai Vs. V. Veerappan, AIR 2007 SC 2663 . II. The trial Court while assessing the evidence both oral and documentary, unjustifiably eschewed considering the following relevant facts: (a) The Appellant had fully complied with his obligation under the agreement Ex. Pl. Pointing out to the covenants in the said agreement, submits that the appellant's obligation was limited to payment of layout charges for the suit property, alongside, the expenses incurred by the Respondents 1 to 4 to secure the permissions from the authorities under the ULCR Act and Income Tax Act for registration of the deed of conveyance. Pl. Pointing out to the covenants in the said agreement, submits that the appellant's obligation was limited to payment of layout charges for the suit property, alongside, the expenses incurred by the Respondents 1 to 4 to secure the permissions from the authorities under the ULCR Act and Income Tax Act for registration of the deed of conveyance. The appellant, it is contended, paid the betterment charges, and taxes, in addition to securing the change of katha, though an obligation of the Respondents 1 to 4, within the time stipulated i.e., 25.4.1984. (b) The Respondents 1 to 4, did not secure the permissions, being their obligation under the agreement Ex. Pl, and in the sequence of events, a condition precedent for the Appellant to pay the balance sale consideration on execution of the sale deed, thereby committed breach of the agreement of sale. (c) Though the Appellant was ready and willing at all material times and even as on 23.5.1985 to pay the balance sale consideration on execution of the deed of conveyance of the suit property, and lodging the same for registration, the Respondents 1 to 4, without justification, issued the telegram dated 18.5.1985 ex. P27 rescinding the contract. (d) The execution of the sale dated Ex. D2 in favour of the 5th respondent, on 3.05.1985 for a sale consideration of Rs. 48,000/- i.e., Rs. 3,000/- in excess of what was agreed upon with the Appellant, demonstrates that it was Respondents 1 to 4 took undue advantage and committed the breach of contract and took advantage. (e) The Respondents 1 to 4 having secured permission under the ULCR Act to convey the suit property in favour of the 5th respondent, further demonstrates that without such a permission, registration of the deed of conveyance was impermissible, a serious breach of the obligation in terms of agreement Ex. Pa. III. It is next contended that it is not necessary for the appellant to carry ready cash with him to prove that he had necessary funds to pass on consideration at the time of registration, suffice it to establish his capacity to pay the sale consideration. Reliance is placed on the reported opinion of the Apex Court in Sukhbir Singh Vs. Brij Pal singh, AIR 1996 SC 2510 and Others. IV. Reliance is placed on the reported opinion of the Apex Court in Sukhbir Singh Vs. Brij Pal singh, AIR 1996 SC 2510 and Others. IV. Learned Senior Counsel points out to paragraph 24 of the impugned Judgment and decree to contend that the trial Court fell in error in recording a finding declaring the 5th defendant as the owner of the suit schedule property pursuant to the sale deed Ex. D2 although, he had knowledge of the agreement of sale Ex. P1. ( 5. ) PER contra, Sri Kumar, learned Counsel for 5th respondent while not seriously controverting the contention that defendants 1 to 4 having been placed ex parte, the 5th respondent purchaser of the suit schedule property with knowledge of the agreement of sale Ex. Pl could not have resisted the claim of the Appellant's readiness and willingness, in the light of the decision in M.M.S. Investments case (supra), nevertheless seeks to sustain the findings of the trial Court in declining to decree the suit for specific performance. ( 6. ) LEARNED Counsel advances the following contentiona:- (a) In the reply notice dated 16. 3. 1985 Ex. P12 the appellant having regretted the delay and inconvenience caused to the vendors and being indebted to the vendors for waiting patiently and extending time for registration, was sufficient to establish that the appellant though called upon to execute the sale deed and pay the balance sale consideration, avoided the same on one pretext or the other leading to the only conclusion that he was not ready and willing to perform his part of the contract. (b) The oral testimony of PW-1 does not disclose that the appellant was ready and willing at any point of time, to pay the expenses to secure the permission under the ULCR act and the Income-tax Act for the vendors to execute the sale deed coupled with the fact that though respondents 1 to 4 made a demand by legal notice dated 6.3.1985 ex. P11 to have the sale deed executed on or before 18.3.1985, failure on the part of the appellant demonstrated that he was not ready and willing to perform his part of the contract by paying the balance sale consideration. P11 to have the sale deed executed on or before 18.3.1985, failure on the part of the appellant demonstrated that he was not ready and willing to perform his part of the contract by paying the balance sale consideration. (c) Though respondents 1 to 4 did not resist the suit and were placed ex parte, nevertheless, keeping in mind the reason for the sale of the suit property, as disclosed in Ex. P1, being dire necessity, due to the death of the bread winner viz., the husband of the 1st defendant, time was the essence of the contract. Learned Counsel places reliance on the reported opinion of a Division bench of this Court in the case of Saraswathi Ammal Vs. V. C. Lingam, ilr 1993 Kar. 427; the decision of the Apex Court in Manjunath Anandappa vs. Tammanasa, AIR 2003 SC 1391 and His Holyness Acharya Swamy ganesh Dassji Vs. Shri Sita Ram Thapar, AIR 1996 SC 2095 . ( 7. ) IN reply Learned Senior Counsel contends that the 5th respondent's pleas of time being the essence of the contract and hardship were neither advanced before the trial Court nor issues framed and hence cannot be urged for the first time in this appeal. ( 8. ) HAVING heard the learned Counsels for the parties, perused the pleadings, the evidence both oral and documentary and examined the judgment and decree impugned, the questions for decision making are:-Whether in the facts and circumstances of the case, the trial Court was, justified in recording a finding:- I. On issue No. 3 that the 5th defendant purchased the property under the sale deed Ex. D2? ii. That the 5th defendant was entitled to take possession of the suit schedule property in accordance with law? iii. On issue No. 5 that the 5th defendant proved the plaintiff a defaulter, not ready and willing to perform his part of the obligation? iv. On issue No. 4 that the plaintiff was not ready and willing to perform his part of the obligation? iii. On issue No. 5 that the 5th defendant proved the plaintiff a defaulter, not ready and willing to perform his part of the obligation? iv. On issue No. 4 that the plaintiff was not ready and willing to perform his part of the obligation? Section 16 (c) of the Specific Relief Act, 1963 provides that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than the terms the performance of which has been prevented or waived by the defendant. The first explanation for the purpose of clause (c) provides that where a contract involves payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court, any money except when so directed by the Court; while second explanation states that the plaintiff must aver performance of, or readiness and willing to perform, the contract according to its true construction. Sub-section (1) of Section 20 invests in the Court a discretion to decree specific performance and is not commonly bound to grant such relief, if merely it is lawful to do so, but such discretion cannot be arbitrary but sound and reasonable, guided by judicial principles and capable of correction by the Court of appeal. Sub-section (2) is not exhaustive in relation to cases in which the Court may properly exercise discretion not to decree specific performance. ( 9. ) FOR a better understanding of the law governing specific relief, in particular specific performance of an agreement of sale, it is useful to extract the observations of the Five Judge Bench of the Apex Court in Chand rani Vs. Kamal Rani, (1993) 1 SCC 519 , which reads thus: "it is a well-accepted principle that in a case of sale of immovable property time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. This principle is not in nay way different from that obtainable in England. In fact, there is a presumption against time being the essence of the contract. This principle is not in nay way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract, the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language. " "specific performance of a contract will ordinarily be granted, notwithstanding default in carrying out the contract within the specific period, if having regard to the express stipulations of the parties, nature of the property and the surrounding circumstances, it is not inequitable to grant the relief. If the contract relates to sale of immovable property, it would normally be presumed that the time was not of the essence of contract" after having analysed the case - law on the point, their lordships further observed thus:-"from an analysis of the above case-law it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are: 1. from the expressed terms of the contract; 2. from the nature of the property; and 3. from the surrounding circumstances, for example the object of making the contract. " a. In the facts of that case, the terms of the contract invested in the purchaser an obligation to pay Rs. 98,000/- within 10 days from the date of execution of the contract failing which the contract would be vitiated. The court, on facts held that there was no readiness and willingness on the part of the purchaser, disentitling him to decree for specific performance. ( 10. ) IN Parakunnan Veetill Joseph's son Mathew Vs. 98,000/- within 10 days from the date of execution of the contract failing which the contract would be vitiated. The court, on facts held that there was no readiness and willingness on the part of the purchaser, disentitling him to decree for specific performance. ( 10. ) IN Parakunnan Veetill Joseph's son Mathew Vs. Nedumbara kuruvila's son and Others, 1987 (Supp) SCC 340, the Apex Court observed that the Court should meticulously consider all facts and circumstances of the case before granting specific performance. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage. (a) The evidence in that case indicated that the subsequent sale deed and agreement were obtained from the owners of the estate after taking the earlier agreement holder into confidence and as there was an implied consent for executing the subsequent documents and the party having settled his rights under the initial agreement, is said to have waived his right to purchase the estate for himself. It is in this background the assignee of the initial agreement holder was held to have no better right to enforce the agreement and hence disentitled to a decree for specific performance. In Nirmala Anand Vs. Advent Corporation Private Limited, (2002)5 SCC 481 , it was held that specific performance is an equitable relief, court has to strike a balance of equities between the parties having regard to the relevant aspects, including the lapses which occurred and the parties respectively responsible therefor-though plaintiff purchaser remained always ready and willing to perform her part of the contract-defendant (vendor) cannot held to be solely responsible for delay or default in performance of the contract in view of the other circumstances such as pendency of Court proceedings - Plaintiff has to share a portion of the expenses to be incurred for renewal of the lease and revalidation of the building plan - on facts, entire benefit of the steep rise in the property cannot be allowed to be availed of by the plaintiff alone. ( 11. ) THUS what emanates from the observations of the Apex Court in the aforesaid reported opinions, is that the foundation for decreeing a suit for specific performance must necessarily be based on justice, equity, good conscience and fairness to both parties. ( 12. ( 11. ) THUS what emanates from the observations of the Apex Court in the aforesaid reported opinions, is that the foundation for decreeing a suit for specific performance must necessarily be based on justice, equity, good conscience and fairness to both parties. ( 12. ) SECTION 53-A of Transfer of Property Act, 1882, affords protection to a transferee on certain conditions, one of which is that transferee has performed or is willing to perform his part of the contract. The Apex Court in Jawahar Lal Wadhwa Vs. Haripada Chakroberty, AIR 1989 SC 606 held thus:- "in certain circumstances once a party to a contract has repudiated a contract, it is not necessary for the other party to tender the amount payable under the contract in the manner provided in the contract in order to successfully claim the specific performance of the contract. This does not, however, mean that where one party to a contract repudiates the contract, the other party to the contract who claims specific performance of the contract is absolved from his obligation to show that he was ready and willing to perform the contract. It is settled in law that where a party to a contract commits an anticipatory breach of the contract, the other party to the contract may treat the breach as putting an end to the contract and sue for damages, but in that event he cannot ask for specific performance. The other option open to the other party, namely, the aggrieved party, is that he may choose to keep the contract alive till the time for performance and claim specific performance but, in that event, he cannot claim specific performance of the contract unless he shows his readiness and willingness to perform the contract. AIR 1962 SC 77 , explained and disting". In A. Maria Angelena Vs. A. G. Balkis Bee, (2002) 9 SCC 597 , the apex Court observed the plea that a decree for specific performance would result in serious hardship to the vendor, or the subsequent purchaser, and that the plaintiff should be compensated in terms of money must be taken at the earliest stage, an issue framed and decided. ( 13. ) IN the admitted facts of this case, the initial agreement of sale ex. ( 13. ) IN the admitted facts of this case, the initial agreement of sale ex. P1 evidencing delivery of possession of the suit property and its title deeds, to the appellant by the respondents 1 to 4, was within the knowledge of the 5th respondent. The deed of conveyance Ex. D2 in favour of the 5th respondent, executed by respondents 1 to 4, raises a question whether he was a bona fide purchaser for value without notice of the initial agreement of sale Ex. P1. The respondents 1 to 4 remained absent and unrepresented, hence placed exparte, and therefore the plea that the Appellant must always be ready and willing to perform his part of the contract, whether available to the purchaser - 5th respondent, under a concluded contract Ex. D1 arises for consideration. In identical circumstances in MMS Investments case (supra), the Apex Court held thus: "6. Learned Counsel for the appellants submitted that since the purchasers step into the shoes of the vendor, the question of readiness and willingness can be pressed into service. This plea is clearly without substance because the purchasers had to prove that they are bona fide purchasers for value without notice. The readiness and willingness aspect will not give any relief to them. " In that view of the matter, the 5th respondent, was not entitled to advance the plea of want of readiness and willingness of the appellant, and the trial Court was not justified in framing issue No. 5 or recording a finding in the affirmative thereon, that the 5th respondent proved that the appellant was a defaulter and not ready and willing to perform his part of the obligation. In the admitted facts, the 5th respondent cannot be said to be a bonafide purchaser for value without notice, and therefore the trial Court was not justified in recording a finding that the 5th respondent was the owner of the suit schedule property pursuant to the sale deed ex. D2. As a consequence the direction entitling the Respondent No. 5 to secure possession of the suit property from the appellant, in accordance with law, is illegal, perverse and unsustainable. Questions I to III are accordingly answered. ( 14. ) THE plaint averments discloses the plea of readiness and willingness to perform the appellant's part of the obligation at all material times. The appellant's obligation under the agreement Ex. Questions I to III are accordingly answered. ( 14. ) THE plaint averments discloses the plea of readiness and willingness to perform the appellant's part of the obligation at all material times. The appellant's obligation under the agreement Ex. P1, is to pay the necessary layout and conversion charges to the concerned authorities. The other obligation of the appellant is to pay the balance sale consideration of rs. 40,000/- to the Respondents 1 to 4, before the Sub-registrar, at the time of registration of the sale deed. The obligations of the Respondents 1 to 4, are to obtain the katha in their name the cost for which is to be reimbursed by the Appellant and to get the necessary permissions for registration from the competent authorities, within the period of five months to be extended by two months in case of delay in securing the permissions leading to delay in paying the layout charges. ( 15. ) THE appellant in compliance with his obligation, paid the betterment charge of Rs. 174-00 on 25. 4. 1984 acknowledged by the corporation of the City of Bangalore, by receipt of even date, Ex. P7 in the name of the 2nd respondent. Though the Respondents 1 to 4 were obliged to secure the transfer of katha, nevertheless the same was secured by the appellant, from the Corporation of City of Bangalore, as evident from the special notice dated 2. 5. 1984 Ex. P8 and paid the taxes for the years 1977 to 1984-85 evident by the receipt Exs. P4 to P6. ( 16. ) THE contents of the legal notice dated 6. 3. 1985 Ex. Pll are to the effect that the appellant did not pay the balance of the sale consideration in terms of the agreement within the time stipulated, though Respondents 1 to 4 had completed all the formalities and expressed their readiness to execute the sale deed on number of occasions. What is patently not forthcoming from the notice is the relevant particulars of the permissions and the expenses incurred. Nevertheless, the Respondents 1 to 4 called upon the appellant to secure the execution of the sale deed on or before 18th March, 1985 by paying the balance sale consideration. What is patently not forthcoming from the notice is the relevant particulars of the permissions and the expenses incurred. Nevertheless, the Respondents 1 to 4 called upon the appellant to secure the execution of the sale deed on or before 18th March, 1985 by paying the balance sale consideration. Thus the respondents 1 to 4 on their part did not secure the permissions for registration of the deed of conveyance so as to enable the Appellant to pay the balance sale consideration before the Sub-Registrar and the expenses for obtaining the said permission, as agreed upon. Had the Respondents 1 to 4 secured the permissions, and claimed the expenses incurred, the appellant would have had to make good the said amounts. The sequence of events in the agreement Ex. P1 require the respondents 1 to 4 to secure the permissions for registration of the deed of sale and thereafter for the appellant to pay the balance sale consideration before the Sub-Registrar. Respondents 1 to 4, committed breach of the terms of the agreement of sale, although the appellant had fulfilled his part of the obligation and therefore, in the absence of the required permissions for registration of the deed of conveyance, the appellant cannot be held to have committed breach of terms of the agreement Ex. Pl. ( 17. ) THAT permission of the authority under the ULCR Act, is necessary for registration of the deed of conveyance is established both from the written statement of Respondent No. 5 and the covenants in the sale deed ex. D2, as such permission was obtained in favour of the 5th respondent. The obtaining of permission under the ULCR Act being a condition precedent for the registration of the deed of conveyance, the breach of which by the Respondents 1 to 4, cannot by any stretch of imagination be treated as a disadvantage for specific performance of sale of the suit schedule property in favour of the appellant. ( 18. ) THE appellant's expressions of regret for the delay and inconvenience in the matter of registration of the sale deed in the reply notice Ex. P12, is sought to be pressed into service as having committed a breach of the terms of the agreement and not being ready and willing to perform his obligation. ( 18. ) THE appellant's expressions of regret for the delay and inconvenience in the matter of registration of the sale deed in the reply notice Ex. P12, is sought to be pressed into service as having committed a breach of the terms of the agreement and not being ready and willing to perform his obligation. The trial Court accepted the said plea and held the appellant responsible for the delay and as a consequence not ready and willing. Viewed from the surrounding facts and circumstances, more particularly but for the default on the part of respondents 1 and 2, leading to the failure to execute the sale deed within five months and extended period of two months as set out in the agreement Ex. P1, though the appellant complied with his obligation within the time frame, the expressions used in Ex. P12, reply notice, cannot but be with reference to the calamity in the appellant's family. In this country, it is customary that a sale or purchase of immovable property being an auspicious occasion, is commonly avoided when a calamity befalls a family of a person party to the contract. Such an inconvenience is sought to be taken advantage of to contend that the appellant was not ready and willing. It is in that context that the appellant expressed his gratitude to respondents 1 to 4 for having extended time. ( 19. ) THE second of the appellant's letter dated 4.5.1985 Ex. P14, throws light upon the outcome of the meeting with the 2nd Respondent at the hospital, who advised securing registration and on the second visit to the hospital, to contact Mr. Hafeez, who, when contacted by the appellant's emissary, though promised to contact the appellant on 20.4.1985, did not do so. The conduct of Respondents 1 to 4 demonstrates that without complying with their obligation did rescind from the agreement Ex. P1, taking advantage of the inconvenience due to the calamity in the appellant's family. ( 20. ) THOUGH the appellant called upon the respondents 1 to 4, by the reply notice Ex. P12, to go over to the Sub-Registrar's Office on 23.5.1985, to execute the deed of conveyance and receive the balance sale consideration of Rs. P1, taking advantage of the inconvenience due to the calamity in the appellant's family. ( 20. ) THOUGH the appellant called upon the respondents 1 to 4, by the reply notice Ex. P12, to go over to the Sub-Registrar's Office on 23.5.1985, to execute the deed of conveyance and receive the balance sale consideration of Rs. 40,000/-, the conduct of the Respondents 1 to 4 in securing the permission of the authority under the ULCR Act by order dated 25.5.1985, to convey the suit property to the 5th Respondent followed by the execution and registration of the deed of sale Ex. D2 on 30.5.1985, for a sale consideration of Rs. 48,000/- i. e., Rs. 3,000/- in excess of the consideration agreed in Ex. P1 demonstrates that Respondents 1 to 4, in order to make a profit took advantage of the appellant's predicament, and therefore, rescind from the agreement. The Trial Court in my opinion misdirected itself by failing to reckon all relevant materials while recording a finding that the expressions of gratitude by the appellant was in the direction of establishing that the appellant was neither ready nor willing to perform his part of the contract at all material times. ( 21. ) IT is no doubt true that Ex. Pl covenants the sale of the immovable property is due to "dire necessity. " The Respondents 1 to 4 having remained absent and placed ex parte, there was no plea of hardship due to dire necessity nor an issue raised or findings recorded and in the circumstances, the learned Senior Counsel for the appellant is correct in his submission that the said contentions cannot be permitted to be advanced for the first time in his appeal by the learned Counsel for the respondent No. 5. So also the plea that time was the essence of the contract was neither advanced nor considered by the trial Court and in that view of the matter too that plea cannot be put forth for the first time in this appeal in justification of the judgment and decree. Even otherwise, the legal notice Ex. Pll issued to the Counsel for respondents 1 to 4 does not spell out the particulars of dire necessity or that time was the essence of the contract and if really such conditions did exist on the date of the execution of the agreement of sale Ex. Even otherwise, the legal notice Ex. Pll issued to the Counsel for respondents 1 to 4 does not spell out the particulars of dire necessity or that time was the essence of the contract and if really such conditions did exist on the date of the execution of the agreement of sale Ex. P1, it is not known as to why Respondents 1 to 4 did not secure the permission from the authorities for the registration of the suit schedule property within the time stipulated. If there was dire necessity, Respondents 1 to 4 would have been propelled to secure the permission within the time stipulated in the agreement. So also the sale in favour of the 5th respondent is not as a distress sale but for an enhanced sale consideration, and hence the contentions of the learned Counsel for 5th respondent are but specious pleas. In the light of the observations of the Apex Court in A. Maria angelena's case (supra) that plea of hardship to the vendor or subsequent purchaser must be raised at the earlier stage, issue framed and decided, applies to the facts and circumstances of this case. ( 22. ) THE plea of the learned Counsel for the 5th respondent that the appellant did not have ready cash with him is without merit. The plaint averments and the evidence of PW-1 animates the fact that the appellant was and is ready and willing to perform his part of the obligation by paying the balance sale consideration before the Sub-Registrar on the execution of the conveyance deed by the respondent 1 to 4. In Sukhbir Singh Vs. Brij Pal Singh (supra), the Apex Court held thus: "law is not in doubt and it is not a condition that the respondents should have ready cash with them. The fact that they attended Sub-registrar's office to have the sale deed executed and waited for the petitioners to attend the office of the Sub-registrar is a positive fact to prove that they had necessary funds to pass on consideration and had with them the needed money with them for payment at the time of registration. It is sufficient for the respondents to establish that they had the capacity to pay the sale consideration. It is not necessary that they should always carry the money with them from the date of the suit till date of the decree. It is sufficient for the respondents to establish that they had the capacity to pay the sale consideration. It is not necessary that they should always carry the money with them from the date of the suit till date of the decree. It would, therefore, be clear that the Courts below have appropriately exercised their discretion for granting the relief of specific performance to the respondents on sound principles of law. " applying the said observations to the facts of this case, indisputably the appellant having called upon the defendants 1 to 4 by the reply notice ex. P12, to go over to the Sub-registrar's office on 23.5.1985 on which date the appellant was present in the said office, not being disproved, is a positive fact to prove that the appellant had necessary funds to pass on consideration and had with him the money for payment at the time of registration. In my opinion, the trial Court fell in error in declining to accept the appellant's plea of ready and willingness to perform his part of the contract so as to exercise discretion to grant the relief of specific performance. The appellant was put in possession of the suit schedule property in part performance of the agreement of sale Ex. P1 and was handed over the original of the title deeds of the suit property. Having regard to the nature of the property being a residential site, and the surrounding circumstances referred to supra, coupled the express stipulation of the parties, notwithstanding the default of Respondents 1 to 4 in carrying out their obligations within the time specified, I am of the opinion, it is not inequitable to grant the relief of specific performance. In the fact situation, it cannot be said that the appellant's readiness and willingness to perform his part of the contract is not a mere desire but is a genuine willingness proved by evidence both oral and documentary. There is also no material to establish that the appellant having been put in possession of the suit schedule property was not anxious to complete the contract either because he was not ready with cash or that he considered it expedient not to part with the money, so that he could have the benefit of keeping the balance sale consideration as well as enjoy the suit property. Question No. I is answered accordingly. ( 23. Question No. I is answered accordingly. ( 23. ) THE facts in Manjunath Anandappa Vs. Tammanasa's case (supra)are that the purchaser had not even asked the vendor to execute the deed of sale in his favour nor tendered the balance amount of consideration within a period of three years from the date of agreement. In this premise, it was held that mere making of a statement that the vendor did not execute the sale deed despite notice did not comply with the requirement of Section 16 (c), moreso, when the notice was served upon the power of attorney holder of the vendor which was already revoked and within the knowledge of the purchaser. The facts of the present case are different from that of the reported decision and therefore, has no application. ( 24. ) IN His Holiness Acharya Swamy Ganesh Dassji's case (supra) the fact was that the object of executing the agreement of sale was that the vendor was in dire need of amount to celebrate his daughters' marriage and hence time was the essence of contract. The purchaser hot having enough funds to pay the consideration intended to bite for the time and in that context, negatived the relief for specific performance. This Judgment too on facts does not apply to the present case. In Saraswathi Ammal's case (supra), a Division Bench of this court observed that Courts ought to consider the conduct of the purchaser, and when interested in procrastination since delay was to his advantage, being in possession of the property, may not be anxious at all complete the contract either because he had no ready cash with him or expedient not to part with the money and continue to have the benefit of the money as well as the property ought not to decree specific performance. ( 25. ) IN the facts of this case, the condition precedent for registration of the sale deed was the securing of permissions from the competent authorities by respondents 1 to 4, the breach of which cannot be imputed to the appellant as not being anxious to complete the contract. That Judgment too has no application to the facts of this case. ( 26. ) IN the result, the appeal is allowed. The impugned Judgment and decree is modified. The suit of the appellant for specific performance of the agreement of sale is decreed. That Judgment too has no application to the facts of this case. ( 26. ) IN the result, the appeal is allowed. The impugned Judgment and decree is modified. The suit of the appellant for specific performance of the agreement of sale is decreed. The respondents either in person or through their agents or servants are permanently restrained from interfering with the appellant's peaceful possession and enjoyment of the suit schedule property or from alienating or creating any encumbrance thereon. Registry to draw up a decree accordingly. There shall be no order as to costs.