Judgment : 1. This appeal has been preferred challenging the judgment dated 14.11.2003 in Original Suit No.1209 of 1993 on the file of the II Senior Civil Judge, City Civil Court, Hyderabad. 2. The appellants herein are defendants 1 to 5 respectively, and the first respondent herein is the plaintiff, and the respondents 2 to 18 are the other defendants respectively, in the suit. For better appreciation of facts, the parties are hereinafter referred to, as they are arrayed before the trial Court. 3. The plaintiff filed the suit (a) for specific performance of agreement of sale dated 21.3.1982 directing the defendants 1 to 5 to execute sale deed in favour of the plaintiff after receiving Rs.5,24,125/-; (b) to direct the defendants 1 to 5 to take all necessary and appropriate steps for getting permission from the Government of Andhra Pradesh to enable them to execute regular sale deed or deeds in favour of plaintiff; (c) to grant perpetual injunction restraining the defendants from alienating suit schedule land in any manner whatsoever in favour of defendant no.6 or in favour of any third party except in favour of the plaintiff, and in the alternative, to direct the defendants 1 to 5 to refund a sum of Rs.2,90,000/- being the earnest money together with reasonable interest and damages of Rs.5,00,000/-. 4. (a) It is stated in the plaint that, the plaintiff is a co-operative society registered under the provisions of the Andhra Pradesh Co-operative Societies Act, 1964 (for short, ‘APCS Act, 1964’) with registration No.TAB 533, and its main object is to promote activity of house building and mainly providing suitable land to its members for construction of houses. The defendants 2 to 5 and father of the defendant no.1 are the absolute owners and possessors of the suit schedule property admeasuring Ac.13.10 guntas (-) Ac.0.29 guntas = Ac.12.21 guntas in survey no.222/4, Gaddimalkapur village, Golconda revenue mandal, Hyderabad, and they agreed to sell the suit schedule land to the plaintiff. The defendants 2 to 5 and father of the defendant no.1 are the absolute owners and possessors of the suit schedule property admeasuring Ac.13.10 guntas (-) Ac.0.29 guntas = Ac.12.21 guntas in survey no.222/4, Gaddimalkapur village, Golconda revenue mandal, Hyderabad, and they agreed to sell the suit schedule land to the plaintiff. The defendant no.5, on his behalf and on behalf of defendants 2 to 4 and father of defendant no.1 as general power of attorney holder, executed an agreement of sale on 21.3.1982 (Ex.A1), agreeing to sell the suit schedule land at Rs.65,000/- per acre and the plaintiff agreed to purchase the same from them at the same rate, and on the same day, the plaintiff paid an amount of Rs.1,00,000/- to the defendants 2 to 5 and father of defendant no.1. Since they owned other lands also, apart from the suit schedule land, the property fell under the purview of the Urban Land (Ceiling & Regulation) Act, 1976 (for short, ‘the Act, 1976’), under which they cannot alienate the said lands in any manner whatsoever except in favour of the registered co-operative societies in accordance with the provisions of the Act, 1976, Rules and administrative instructions issued by the State from time to time, and that is the reason why they chose to enter into the agreement of sale with the plaintiff. (b) It is further stated that, one of the covenants of Ex.A1 stipulates that the plaintiff should pay the balance of sale consideration for the entire suit schedule land admeasuring Ac.13.10 guntas, within three months from the date of receipt of permission from the Government under the Act, 1976, and the sale deed was to be executed by the defendants before the Sub Registrar. Another important covenant is initiating and taking appropriate measures for obtaining necessary permission and sanction from the State of Andhra Pradesh. In this regard, it is specifically agreed that the plaintiff and the defendants shall apply with all necessary papers to the Government of Andhra Pradesh and to Bhagyanagar Development Authority for exemption of the land agreed to be sold from the provisions of the Act, 1976, and the plaintiff, on its part, took number of steps for getting necessary exemption particularly under G.O. Ms. No.136, Revenue (UC-III) Department, dated 28.1.1981. No.136, Revenue (UC-III) Department, dated 28.1.1981. The plaintiff also filed an application before the Hyderabad Urban Development Authority and also Government of Andhra Pradesh for getting the land use changed from recreational zone to residential zone, and the same was changed through G.O. Ms. No.263, Municipal Administration Department, dated 22.3.1983. The defendants had also taken steps for some time to get the land exempted from the provisions of the Act, 1976 and they have also filed Writ Petition No.1816 of 1983 before the High Court of Andhra Pradesh. The Government of Andhra Pradesh, vide G.O. Ms. No.964, Revenue (UC-II) Department, dated 27.6.1983 rejected all pending applications seeking the exemption, which led to filing of number of Writ Petitions before the High Court of Andhra Pradesh, and the defendants have also filed Writ Petition questioning the said Government Order. So, in spite of steps being taken up, the transaction could not be completed on account of intervention of the State. (c) It is further stated that, later, the defendants turned dishonest and were not willing to perform their part of contract under Ex.A1-agreement of sale. In spite of discussions and negotiations, the defendants without any reason or justification, adopted attitude of non-cooperation and were giving signals that they were not willing to honour the terms, conditions and covenants of Ex.A1-agreement of sale. The only part remained to be completed by the defendants for the purpose of getting necessary exemption under the Act, 1976, was to appear before the Special Officer and Competent Authority and also before the Government by filing necessary affidavits and giving details of the land held by them for getting the application processed, which they were postponing. (d) It is further stated that on 28.9.1992, the defendants got issued notice canceling and terminating Ex.A1-agreement of sale, offering to return Rs.2,90,000/- received by them under the agreement. The plaintiff got issued a reply on 28.10.1992. Thereafter, there was exchange of notices between them. The defendants sought to cancel Ex.A1-agreement of sale mainly on the ground that the transaction could not be completed within three months on account of failure on the part of the plaintiff to arrange for sale consideration. The plaintiff got issued a reply on 28.10.1992. Thereafter, there was exchange of notices between them. The defendants sought to cancel Ex.A1-agreement of sale mainly on the ground that the transaction could not be completed within three months on account of failure on the part of the plaintiff to arrange for sale consideration. In fact, there was no delay on the part of the plaintiff in performing their part of contract, but the delay is only on account of defendants’ deliberate negligence and inaction in getting necessary permission from the relevant statutory authorities. The only obligation on the plaintiff is to pay the balance of sale consideration within three months from the date on which the defendants secure permission from the Government to sell the land. The plaintiff was and will be, ready and willing to perform its part of contract. The defendants referred to the Memorandum of Understanding dated 22.11.1990 entered into between the plaintiff and the defendants for the first time in the legal notice, and the said Memorandum of Understanding has no impact whatsoever on Ex.A1-agreement and it does not affect Ex.A1 in any manner. It was only meant to facilitate smooth transaction between the parties. The Memorandum of Understanding is illegal, void and unenforceable and not binding on the plaintiff, and its covenants are contrary to public policy and hit by Section 25 of the Indian Contract Act, 1872, and the defendants are not entitled to enforce the said Memorandum of Understanding. (e) It is further stated that by supplemental agreement for sale dated 22.3.1982, the sale consideration payable by the plaintiff was altered whereunder instead of Rs.65,000/-per acre, the plaintiff agreed to pay Rs.1,95,000/-per acre, and the plaintiff honours the supplemental agreement dated 22.3.1982, which will not alter in any manner whatsoever any of the covenants of Ex.A1 except variation in sale consideration and it is limited only to that extent. The defendants can never be allowed to cancel Ex.A1 and by exchange of notices, they revealed that they had already entered into an agreement of sale with defendant no.6. Claiming some title, the defendant no.6 was making efforts to trespass into the suit schedule land and trying to alter and change nature of the land. The defendants can never be allowed to cancel Ex.A1 and by exchange of notices, they revealed that they had already entered into an agreement of sale with defendant no.6. Claiming some title, the defendant no.6 was making efforts to trespass into the suit schedule land and trying to alter and change nature of the land. (f) It is further stated that the plaintiff is ready and willing to pay the balance of sale consideration at any point of time and even willing to deposit the same into the court, and the defendants, having received substantial amount of Rs.2,90,000/- are bound to perform their part of contract including taking necessary steps for getting permission from the Government including exemption under the provisions of the Act, 1976, and they cannot cancel Ex.A1. On account of flagrant violation and breach of contract on the part of the defendants, plaintiff suffered damages to the extent of Rs.5,00,000/-, and the plaintiff is entitled to recover the damages of Rs.5,00,000/-and earnest money of Rs.2,90,000/- together with reasonable interest thereon, in the alternative viz. if decree as prayed for is not granted. Hence, the suit. 5. (a) The defendants 1 to 4 filed written statement specifically denying the averments in the plaint and stating that plaintiff has not approached the court with clean hands and it has no locus standi to file the suit and the suit is time barred. Jashbai Shanker Bhai Patel, Nalin Bipinchandra Patel, Anil (Atul) Bipinchandra Patel, Natwarlal Mangaldas Patel and Manubhai Shankerbhai Patel are the joint pattedars, owners and possessors of agricultural land admeasuring Ac.13.10 guntas in survey no.222/4 in Guddimalkapur village, and they were cultivating the land without any interruption. On technical advice, they decided to raise grape garden in the agricultural lands and grew grape garden successfully. While so, one P.Narasimha Reddy and P.Nageswara Rao, local residents of Hyderabad actively involved in plot business, approached them falsely representing that they had all the influence and liaison with Urban Land Ceiling (ULC) authorities as well as officials in the Government, and they can get the agricultural land converted into non-agricultural land and get it exempted from the provisions of the Act, 1976 and that they were having a society under their control, if the owners simply enter into an agreement of sale with them in the name of a society under their alleged control. Since the owners were made to believe by them though the owners had no reason or necessity to sell their land, agreed to enter into sale agreement with the said persons, but in the name of plaintiff society. The Act, 1976 is not applicable to the agricultural lands, and any sale or sale agreement for house plots over agricultural lands is null and void and consequently unenforceable. Since the land is an agricultural land, it can be sold only as an agricultural land, but not otherwise, and therefore, the owners cannot and shall not enter into an agreement of sale for the sale of their agricultural lands for house plots. Therefore, Ex.A1-agreement of sale is null and void and not binding on defendants 1 to 4. Further, Ex.A1 is not signed by defendant no.5 and he is not arrayed as vendor in its recitals, and so, the agreement is not binding on 1/5th undivided share of the defendant no.5, and there is no privity of contract between defendant no.5 and the plaintiff. (b) It is further stated that, even assuming that Ex.A1 is valid in law, defendants 1 to 5 agreed to sell the land found surplus after exclusion of Ac.0.29 guntas acquired by the government. Therefore, from out of Ac.13.10 guntas of land, Ac.0.29 guntas and the 1/5th share of defendant no.5 has to be deleted first, and in the remaining land, the extent permitted to be retained under the ULC Authority has to be deleted and the remaining land along is covered by the agreement of sale. Unless the last balance land is identified and demarked, the plaintiff cannot seek the specific performance of the contract. So, the suit for specific performance is not maintainable as there is no meeting of minds between the parties and as there is no identification of the property. (c) It is further stated that as per the covenant in Ex.A1, the agreement can be enforced only three months from the date of the receipt of permission from the Government under the Act, 1976 and so the balance of sale consideration also shall be paid by the plaintiff at the time of execution and after measurement which shall again be within 3 months from the date of receipt of permission from the Government under the Act. Admittedly, at the time of filing of the suit or thereafter, the permission was not granted and the said fact has been specifically admitted in the plaint, and so no specific performance of the contract can be granted. Admittedly, the transaction could not be completed because of the provisions of the Act, 1976 and the Government policy, and it is also clear from the pleadings of the plaintiff that defendants are not at fault for execution of the agreement of sale since no such permission was obtained. So, the plaintiff is precluded from seeking the specific performance of the contract. (d) It is further stated that, mere filing of the declaration would not and cannot change nature of the land. Owners of the land are paying cist (land revenue) regularly, including in the month of March, 1995, and therefore, the extent of Ac.13.30 guntas continues to be agricultural land as mere conversion of the area as residential zone instead of recreational zone would not alter or change nature of land. (e) It is further stated that, admittedly cheque no.126895 for Rs.35,000/-, which was given to defendant no.5 who was acting as GPA holder for defendants 1 to 4, was dishonoured, and therefore, defendants 1 to 4 have received only Rs.65,000/-, but not Rs.1,00,000/- as alleged by the plaintiff. Even assuming that the said cheque was given to defendant no.5 and he received the same in his personal capacity as one of the share holders of the land, since the said cheque was dishonoured, there is no consideration whatsoever received by defendant no.5 and on this count also the suit fails as the other owners could not sell the land in view of the fact that there is no express consent by defendant no.5 for conversion of agricultural land into nonagricultural purpose. Even otherwise also i.e. other owners can sell the land without consent of co-owners, the suit is liable to be dismissed against the defendant no.5. The allegation in the plaint that as the defendant no.5 requested the plaintiff to pay consideration in cash instead of cheque, is false. If really cash was paid to defendant no.5, the plaintiff would certainly have taken back the cheque at the time of payment of cash. The defendant no.5 neither signed Ex.A.1 nor received the price from the plaintiff. The allegation in the plaint that as the defendant no.5 requested the plaintiff to pay consideration in cash instead of cheque, is false. If really cash was paid to defendant no.5, the plaintiff would certainly have taken back the cheque at the time of payment of cash. The defendant no.5 neither signed Ex.A.1 nor received the price from the plaintiff. So, there is no consideration of Rs.1,00,000/-as stated in Ex.A1 and the alleged earnest money is not passed on to the defendants. (f) It is further stated that, in supercession of earlier guidelines issued for processing the exemption applications under Section 20 (1) (A) of the Act, 1976, the Government issued Ex.A30-G.O.Ms. No.136, dated 28.1.1981. As per Ex.A1, the plaintiff offered to purchase the land at reasonable price as per the provisions of Ex.A30-G.O. No.136, dated 28.1.1981 which the defendants agreed to sell to plaintiff. The conditions laid down under Ex.A30 are not satisfied by the plaintiff and some were not even existing at the time of execution of Ex.A1. Further more, as per para 3 in page 3 of Ex.A30-G.O.Ms. No.136, the concession made shall be operative for a period of one year from the date of issue of the order and no further extension would be given. The said period expired on 28.1.1982. So, as on the date of Ex.A1 i.e. 21.3.1982, the exemptions to the housing society given under Ex.A30-G.O.Ms.No.136, were not available to the plaintiff society. Hence, plaintiff committed fraud against defendants 1 to 4 within the meaning of Section 17 of the Indian Contract Act, 1872. Since the offer made by purchaser is a conditional offer, it gets extinguished when the conditions are not complied with or not existing or violated, and the same is void, illegal and unenforceable as it is impossible to get concession made under Ex.A30-G.O. Ms. No.136. There is no consensus ad idem and pari delicto, hence, the suit is liable to be dismissed. (g) It is further stated that, plaintiff did not comply with condition laid down in para 5 of page 3 of Ex.A30-G.O. Ms. No.136. Since the government issued another G.O. later on, wherein uniform policy decision was taken to the effect that the government will not entertain any applications under Section 21 (1) (A) of the Act, 1976. Therefore, Ex.A1-agreement has become frustrated, pari delicto, infructuous, void and unenforceable. No.136. Since the government issued another G.O. later on, wherein uniform policy decision was taken to the effect that the government will not entertain any applications under Section 21 (1) (A) of the Act, 1976. Therefore, Ex.A1-agreement has become frustrated, pari delicto, infructuous, void and unenforceable. Further, inspite of specific covenant that expenses for obtaining exemptions for the land agreed to be sold from the provisions of the Act, 1976 shall be borne by the purchaser alone, the plaintiff society never borne the expenses and thereby violated the said covenant and committed breach of contract. (h) It is further stated that time is the essence of the contract, as can be seen from para no.8 of Ex.A1-agreement, which stipulates that the sale transaction is to be completed within 9 months from the date of agreement or within 3 months from the date of granting permission by the State Government, whichever is earlier. The said time period expired long back and so the suit is not maintainable. Even assuming that memorandum of agreement dated 22.11.1990 and another agreement dated 23.11.1990 extended the time of 9 months calculated from 23.11.1990, the said period is also expired and so the plaintiff cannot seek specific performance of contract after expiry of the stipulated time as it is specifically stated in the agreement dated 23.11.1990 that except the price, in other respects, the earlier two agreements as well as the memorandum of understanding dated 22.11.1990 and the letter of societies dated 22.11.1990 shall stand. (i) It is further stated that, Ex.A1-agreement read with the memorandum of understanding dated 22.11.1990 would go to show that the land for sale is reduced to Ac.5.00 only in which Ac.1.00 has to be passed on to the members suggested by the land owners. It is clear that in addition to the sale price, the plaintiff shall pay a sum of Rs.70/- per square yard through demand draft in favour of the vendors. Since the plaintiff neither deposited nor shown any interest at any time to pay the said amount together with the remaining sale price, plaintiff is at fault for breach of contract. Hence, the agreement is not enforceable. Further, since the land agreed to be sold was confined to Ac.5.00. Since the plaintiff neither deposited nor shown any interest at any time to pay the said amount together with the remaining sale price, plaintiff is at fault for breach of contract. Hence, the agreement is not enforceable. Further, since the land agreed to be sold was confined to Ac.5.00. From the said extent, Ac.0.29 guntas for road; the land retained by the vendor permissible under the Act, 1976 and the land of defendant no.5, have to be deducted, and so, practically, the land available for sale is negligible. Since the plaintiff has not shown any interest after payment of paltry sum of consideration and has neither paid any amount till today nor offered to pay nor deposited the same into the court along with the plaint, it can be inferred that the plaintiff has no means to pay the price to the vendors and so the suit is frustrated and is liable to be dismissed. (j) It is further stated that as seen from memorandum of understanding dated 22.11.1990 entered into between plaintiff and the defendants 1 to 5, the plaintiff agreed that the vendors have no other responsibilities for transfer of land and expenses. So, the covenant that the vendors and purchasers shall apply with all necessary papers to the Government of Andhra Pradesh and to the Bhagyanagar Development Authority, etc, for exemption of the land agreed to be sold from the provisions of the Act, 1976, stands modified to the extent that it is the purchaser who shall take steps for obtaining permission at his expenses. Since the plaintiff failed to obtain permission from the ULC authority, he cannot ask for the specific performance of the contract and committed fraud and breach of contract within the meaning of Section 17 of the Indian Contract Act, 1872. Further more, the time of two months granted under the memorandum of understanding was also expired on 23.1.1991. Hence, the agreement is void, unenforceable, void and time barred. (k) It is further stated that the defendants specifically cancelled the contract duly returning the total amounts paid by the plaintiff and hence from that date onwards there is no relationship between the plaintiff and the defendants 1 to 4, and as there is no subsisting valid agreement as on the date of filing of the suit, the suit is not maintainable. The enforceability of Ex.A1 has become impracticable and impossible. The enforceability of Ex.A1 has become impracticable and impossible. (l) It is further stated that the President, who signed the plaint, has no authority to sign the pleadings. The reliefs (a) & (b) prayed in the plaint conflict with each other and conflict with other prayer (c). Hence, it is prayed to dismiss the suit with costs. 6. The defendant no.5 filed separate written statement denying the allegations in the plaint except those are specifically admitted therein, and stating that the plaintiff has not approached the court with clean hands, the suit is time barred and the plaintiff has no locus standi to file the suit. It is further stated that the defendant no.5 is equivalent undivided share holder of Ac.13.10 guntas having 1/5th share in it. The defendant no.5 has not signed Ex.A1-agreement. This defendant is not at all arrayed as vendor in Ex.A1. The cheque mentioned in Ex.A1 for Rs.35,000/- drawn in favour of the defendant no.5 was dishonoured. The defendant no.5 has not received the basic ingredient for any valid contract viz. ‘consideration’ and so it is not binding on the defendant no.5, and it is false that the plaintiff paid cash of Rs.35,000/- to this defendant. In all other respects, this defendant adopted the written statement of defendants 1 to 4 mutatis mutandis. 7. Basing on the above pleadings, the trial court framed the following issues for trial. 1) Whether the plaintiff is entitled to the specific performance of the contract of sale dated 21.3.82 ? 2) Whether the contract of sale dated 21.3.82 is true, valid and binding on the defendants ? 3) Whether any prior permission is necessary for the plaintiff society to enter into the contract ? 4) Whether the memorandum of understanding dated 22.11.90 is true, valid and binding ? 5) Whether the subsequent agreement dated 2.4.91 is true, valid and binding ? 6) Whether the time is the essence of contract dated 21.3.82 ? 7) Whether the agreement of sale dated 21.3.82 is frustrated and became unenforceable ? 8) Whether the plaintiff is entitled to refund of the amount paid by them ? 9) To what relief ? 8. During trial, P.W.1 was examined and Exs.A1 to A34 were marked, on behalf of the plaintiff, and D.W.1 was examined and Exs.B1 to B40 were marked, on behalf of the defendants. 9. 8) Whether the plaintiff is entitled to refund of the amount paid by them ? 9) To what relief ? 8. During trial, P.W.1 was examined and Exs.A1 to A34 were marked, on behalf of the plaintiff, and D.W.1 was examined and Exs.B1 to B40 were marked, on behalf of the defendants. 9. The trial Court, upon appreciation of the evidence on record, held that Ex.A1-agreement of sale does not become frustrated and that it is true, correct and valid and the plaintiff is entitled to specific performance of contract of sale dated 21.3.1982, and that the plaintiff society was not at fault for not getting permission from ULC authorities, and that Exs.B4-memorandum of understanding and Ex.B5-memorandum of agreement bind the plaintiff society, and ultimately, decreed the suit with costs for specific performance of contract of sale dated 21.3.1982 directing the defendants 1 to 5 to execute registered sale deed in place of Ex.A1 subject to the result of the applications pending before the ULC authorities and pending before the Government of Andhra Pradesh, and that, in the event of parties able to secure ULC permission, then the plaintiff society’s obligation to pay the balance of sale consideration by taking the rates as fixed under Exs.B4 and B5, within one month, and that in the event if the parties failed to secure ULC permission under Section 20 of the Act, the decree becomes nonest and under such circumstances the plaintiff society is entitled for refund of sale consideration amount paid by them with interest @ 12% per annum from the date of payment till realization. Challenging the same, the present appeal has been preferred by the defendants 1 to 5. 10. The plaintiff filed cross-objections with delay, aggrieved by the adverse finding that Exs.B4 and B5 bind the plaintiff. Consideration of the cross-objections depends upon the ultimate result of this appeal. 11. Challenging the same, the present appeal has been preferred by the defendants 1 to 5. 10. The plaintiff filed cross-objections with delay, aggrieved by the adverse finding that Exs.B4 and B5 bind the plaintiff. Consideration of the cross-objections depends upon the ultimate result of this appeal. 11. The learned senior counsel Sri D.Prakash Reddy appearing for the appellants contended that as the contract got frustrated, the relief of specific performance cannot be granted; that the plaintiff was not ready and willing to pay the remaining balance of sale consideration as the vendee does not have any money to purchase the land; that, there was no default on the part of the defendants in obtaining clearance from the ULC authorities, and that the plaintiff by its unilateral extension of time, cannot seek for redressal of specific performance; that, time is the essence of the contract and Ex.B4 clearly show that time is the essence of contract of contract; that, there is no evidence to show that money was available with the plaintiff society and that bank account statement of the plaintiff society has not been filed to show that the plaintiff was ready and willing to perform its part of contract; that, it is not the case of the plaintiff that the defendants have not co-operated for obtaining necessary permission from the ULC authorities; that, ULC permission was already refused by the Government, the question of granting the relief of specific performance does not arise. Hence, he prays to set aside the impugned judgment and decree, and dismiss the suit with costs. 12. On the other hand, the learned senior counsel Sri A.Sudershan Reddy appearing for the first respondent/plaintiff mainly contended that the conditions as mentioned in Ex.A30-G.O.Ms. No.136, dated 28.1.1981 have been taken advantage by the defendants, who sold the surplus land under Ex.A1; that under Ex.B33, the defendants filed an appeal against the third parties which would clearly go to show that the plaintiff never rescinded the contract; that the suit schedule land was declared as surplus by the ULC authorities; that the plaintiff society was diligently following up with the matter as admitted in Ex.A9; that the well reasoned judgment of the trial Court cannot be interfered with. Hence, he prayed to dismiss the appeal. 13. Hence, he prayed to dismiss the appeal. 13. On the rival contentions, the points for consideration in this appeal, are : 1) Whether the plaintiff is entitled to the specific performance of the contract of sale dated 21.3.1982 and whether it is true, valid and binding on the defendants ? 2) Whether any prior permission is necessary for the plaintiff society to enter into the contract ? 3) Whether the memorandum of understanding dated 22.11.1990 and subsequent agreement dated 23.11.1990 are true, valid and binding ? 4) Whether the time is the essence of contract dated 21.3.1982 ? 5) Whether the agreement of sale dated 21.3.1982 is frustrated and became unenforceable ? 6) Whether the plaintiff is entitled to refund of the amount paid by them ? 7) To what relief ? 14. Point No.1: “Whether the plaintiff is entitled to the specific performance of the contract of sale dated 21.319.82 and whether it is true, valid and binding on the defendants?” Ex.A1 is the agreement of sale dated 21.3.1982, under which father of defendant no.1 and the defendants 2 to 5 agreed to sell an extent of Ac12.21 guntas in survey no.222/4 of Guddimalkapur village, Golconda mandal, Hyderabad, to the plaintiff society for a consideration of Rs.65,000/- per acre. It is stated in the plaint that the plaintiff paid a sum of Rs.1,00,000/- to the defendants 2 to 5 and father of the defendant no.1 on the same day through five cheques, and at the request of the defendant no.5, plaintiff paid cash of Rs.35,000/- to him instead of cheque. Under clause (7) of Ex.A1, the vendors and the purchaser shall apply with all necessary papers to the Government of Andhra Pradesh and to the Bhagyanagar Development Authority, etc. for exemption of the land agreed to be sold from the provisions of the Act, 1976 and obtain necessary transferable permission from any authorities for the alienation of the schedule land and the expenses for the same shall be borne by the purchaser alone. Clause (8) thereof stipulates inter alia that the sale transaction is to be completed within nine months from the date of the agreement or within three months from the date of granting permission by the State Government, whichever is earlier. Clause (8) thereof stipulates inter alia that the sale transaction is to be completed within nine months from the date of the agreement or within three months from the date of granting permission by the State Government, whichever is earlier. Similarly, clause (12) of Ex.A1 reads that in case, even with all combined efforts of the vendors and the purchaser, if the necessary transferable permission for alienation without which the schedule land cannot be transferred to the purchaser, is not granted and if for any reason the sale deed does not materialize for no fault or any laches on the part of the vendors or purchaser, the vendors shall refund back whatever the money received from the purchaser by the vendors, to the purchaser within one month. These are the relevant important clauses mentioned in Ex.A1. In pursuance of the above recitals, it is clear that both the plaintiff and the defendants are required to obtain necessary permission as required under the Act, 1976, so that vendors can execute a registered sale deed. Therefore, from the rival submissions, it has to be seen whether time is essence of contract and whether there is any pleading and evidence that the plaintiff is always ready and willing to perform its part of contract and that the plaintiff never approached the ULC authorities for obtaining clearance. The learned counsel for the appellants contended that the plaintiff is not entitled for the relief claimed as there is no evidence that the plaintiff is ready and willing to perform his part of contract and that as per recitals in Ex.A1, time is essence of the contract. 15. The learned counsel for the appellants contended that the plaintiff is not entitled for the relief claimed as there is no evidence that the plaintiff is ready and willing to perform his part of contract and that as per recitals in Ex.A1, time is essence of the contract. 15. Section 16 (c) of the Specific Relief Act, 1963 reads thus: “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 terms the performance of which has been prevented or waived by the defendant.” Explanation for the purposes of clause (c) provides that where a contract involves the 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 and that the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. 16. The plaintiff in a suit for specific performance should always treat the contract as still subsisting and he has to prove his continuous readiness and willingness from the date of the contract to the time of hearing of the suit, to perform his part of contract and failure to make good that case would undoubtedly lead to rejection of his claim for specific performance. Readiness and willingness cannot be treated as a strait-jacket formula. These have to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the parties concerned. Readiness may mean the capacity of the plaintiff to pay purchase money, but to determine willingness of a party to perform his part of contract, his conduct must be well scrutinized. Even where the plaintiff has not committed any breach of contract and it was the defendant alone, who was trying to avoid the contract by hook or crook, even then the plaintiff must aver his readiness and willingness to perform his part of the contract. When the plaintiff neither pleaded nor stated in his evidence that he was ready and willing to perform his part of contract, the plaintiff is not entitled to get the relief of specific performance. When the plaintiff neither pleaded nor stated in his evidence that he was ready and willing to perform his part of contract, the plaintiff is not entitled to get the relief of specific performance. Readiness means capacity of the plaintiff to perform including his financial ability to pay the purchase money. The onus of proof of being ready and willing to perform his part of the contract from the date of contract to the date of filing of the suit, is undoubtedly on the plaintiff. 17. On this aspect, the learned counsel for the appellants placed strong reliance on a decision of this Court in B.R.Koteswar Rao v. C.Rameshwari Bai @ Devi & another 2002 (6) ALT 1, wherein it is held thus: “One of the circumstances to verify as to the readiness and willingness of the party claiming specific performance is the plea taken before the court and the steps taken to prove his bona fides. Normally, in addition to taking the plea as to the readiness and willingness the parties also make deposit of the balance of sale consideration. Though that act by itself will not entitle the party for the relief, it is a circumstance to be taken into account in recording a finding on the issue. ..” 18. The learned counsel for the appellants also relied on a decision in H.P. Pyarejan v. Dasappa (died) by LRs & others, (2006) 2 Supreme Court Cases 496 wherein it is held thus: (para 10) “The requirements to be fulfilled for bringing in compliance of the Section 16 (c) of the Act have been delineated by this Court in several judgments. While examining the requirement of Section 16 (c) this Court in Syed dastagir v. T. R. Gopalakrishna Setty ( 1999 (6) SCC 337 ) noted as follows : "so the whole gamut of the issue raised is, how to construe a plea specifically with reference to Section 16 (c) and what are the obligations which the plaintiff has to comply with in reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. In India most of the pleas are drafted by counsel hence the aforesaid difference of pleas which inevitably differ from one to the other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test whether he has performed his obligations, one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature or word. Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16 (c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of "readiness and willingness" has to be in spirit and substance and not in letter and form. So to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already pleaded. " So, from the above decisions, it is clear that the plaintiff must always shown readiness and willingness to perform his part of contract. In the absence of such pleading and evidence, the plaintiff is not entitled for the equitable relief of specific performance. 19. It is not in dispute before this Court that jurisdiction to decree a suit for specific performance is a discretionary. In the absence of such pleading and evidence, the plaintiff is not entitled for the equitable relief of specific performance. 19. It is not in dispute before this Court that jurisdiction to decree a suit for specific performance is a discretionary. The court is not bound to grant such relief merely because it is lawful to do so, but, the discretion of the court shall not be arbitrary and capricious. The jurisdiction vested in the court to decline specific performance and grant of alternative relief, is a jurisdiction of equity and good conscience. A lawful agreement being proved and judicial conscience of the court being satisfied, equity would demand enforcement of the agreement rather than granting the alternative relief of damages to the plaintiff. Therefore, the jurisdiction of the court to decree a specific relief is discretionary and must be exercised on sound and reasonable grounds guided by judicial principles, capable of correction by the court of appeal. 20. On this aspect, the learned counsel for the appellants placed reliance on a decision in Her Highness Maharani Shantidevi P.Gaikwad v. Savjibhai Haribhai Patel & others, (2001) 5 Supreme Court Cases 101 wherein it is held thus: (para 59) “The grant of decree for specific performance is a matter of discretion under Section 20 of the Specific Relief Act, 1963. The Court is not bound to grant such relief merely because it is lawful to do so but the discretion is not required to be exercised arbitrarily. It is to be exercised on sound and settled judicial principles. One of the grounds on which the Court may decline to decree specific performance is where it would be inequitable to enforce specific performance. The present is clearly such a case. It is to be exercised on sound and settled judicial principles. One of the grounds on which the Court may decline to decree specific performance is where it would be inequitable to enforce specific performance. The present is clearly such a case. It would be wholly inequitable to enforce specific performance for (i) residential houses for weaker sections of the society cannot be constructed in view of the existing master plan and, thus, no benefit can be given to the said section of the society; (ii) In any case, it is extremely difficult, if not impossible, to continuously supervise and monitor the construction and thereafter allotment of such houses; (iii) the decree is likely to result in uncalled for bonanza to the plaintiff; (iv) patent illegality of order dated 20/06/1998; (v) absence of law or any authority to determine excess vacant land after construction of 4356 dwelling units; and (vi) agreement does not contemplate the transfer of nearly 600 acres of land in favour of the plaintiff for construction of 4356 units for which land required is about 65 acres. The object of the act was to prevent concentration of urban land in hands of few and also to prevent speculation and profiteering therein. The object of Section 21 is to benefit weaker sections of the society and not the owners. If none of these objects can be achieved, which is the factual position, it would be inequitable to still maintain decree for specific performance. 21. Similarly, in a decision in A.C. Arulappan v. Ahalya Naik (Smt.) (2001) 6 Supreme Court Cases 600 relied on by the learned counsel for the appellants, it is held thus: (para 11) “In Bobind Ram v. Gian Chand { (2000) 7 SCC 548 }, it was observed in para 7 of the judgment that grant of a decree for specific performance of contract is not automatic and is one of the discretions of the court and the court has to consider whether it would be fair, just and reasonable. The court is guided by the principles of justice, equity and good conscience.” Basing on the above principles in mind, it has to be seen whether there is a pleading with regard to plaintiff’s readiness and willingness in pursuance of Ex.A1 to perform his part of contract or not. 22. The court is guided by the principles of justice, equity and good conscience.” Basing on the above principles in mind, it has to be seen whether there is a pleading with regard to plaintiff’s readiness and willingness in pursuance of Ex.A1 to perform his part of contract or not. 22. It is stated in the plaint that the plaintiff society is ready and willing to pay the balance of sale consideration at any point of time and even willing to deposit the same into the court, and therefore, the defendants 1 to 5 are bound to perform their part of contract. P.W.1, who claims to be the President of plaintiff society, stated that there are about 100 members in the plaintiff society, but he has not enclosed list of members of the society. He admitted in cross-examination that the plaintiff is having bank account in the District Co-operative Bank, Hyderabad; that, he does not know the bank account number and that he did not produce any document to show that there were sufficient funds in the account of the society; that the source of funds for the plaintiff society was from the funds collected from its members. He stated that he kept the amount of plaintiff society in the District Co-operative society in current account only; that he had not filed pass book or statement of account of the District Co-operative Bank to show that there were sufficient funds in the account of the plaintiff society being maintained with the bank and he did not file any document to show that the bank account was still in operation. P.W.1 did not specifically state as to the steps taken from the date of the agreement of sale till the date of filing of the suit to discharge his obligation. P.W.1 has not pursued the matter with the competent authority. He has not filed a single scrap of paper before the court to infer that he is pursuing the matter with the competent authority in terms of clause (7) of Ex.A1. Therefore, from above evidence of P.W.1, it cannot be inferred that the plaintiff society is always ready and willing to perform its part of contract. 23. Willful withholding or suppression of useful evidence naturally leads to the inference that the evidence, if produced, would go against the party who withholds it. Therefore, from above evidence of P.W.1, it cannot be inferred that the plaintiff society is always ready and willing to perform its part of contract. 23. Willful withholding or suppression of useful evidence naturally leads to the inference that the evidence, if produced, would go against the party who withholds it. In other words, if a man wrongfully withholds evidence, every presumption to his disadvantage consistent with the facts admitted or proved will be adopted. Since the plaintiff claims to be a registered society consisting of several members, relevant documentary evidence in respect of all aspects would be available with the plaintiff society. If the best evidence is not produced, which is admittedly in possession of the plaintiff society, a presumption of willful withholding of the evidence can be drawn under Section 114 (g) of the Indian Evidence Act, 1872. Therefore, the plaintiff failed to establish that the plaintiff society is always ready and willing to perform its part of contract from the date of execution of Ex.A1 and continues to perform its obligations thereafter. 24. The parties knew that by the date of execution of Ex.A1, the land agreed to be sold under Ex.A1 comes under the purview of the Act, 1976. It is not in dispute that both the plaintiff and the defendants submitted application to the authorities for exemption under Section 20 of the Act, 1976. As per Ex.A30-G.O. Ms. No.136, dated 28.1.1981, exemption to surplus land holders may be considered in cases where they propose to transfer the excess vacant lands to the Registered Co-operative housing Societies or Group Housing Co-operative Societies, registered in accordance with law, irrespective of the fact whether they have come into existence prior to or after the commencement of the Act, 1976. The above concession in respect of certain societies will be valid for a period of one year from the date of issuance of that order. By virtue of Ex.A33-G.O. Ms. No.1196, Revenue (U.C.I) Department, dated 07.07.1978, rates have been fixed for square meter with regard to vacant land in each zone. By virtue of Ex.A34-G.O.Ms.No.91, Revenue (U.C.II) Department, dated 27.1.1982, the time limit fixed in para no.3 of Ex.A30 was extended up to 31.3.1982. Even though permission has been applied as on the date of disposal of the suit, the Government has not given permission under the Act, 1976. By virtue of Ex.A34-G.O.Ms.No.91, Revenue (U.C.II) Department, dated 27.1.1982, the time limit fixed in para no.3 of Ex.A30 was extended up to 31.3.1982. Even though permission has been applied as on the date of disposal of the suit, the Government has not given permission under the Act, 1976. When the Government has not passed any orders on the application for permission, the defendant filed Writ Petition No.8916 of 1983 before this Court as in Ex.A9, wherein it is admitted that the defendants received a sum of Rs.1,00,000/- on 21.3.1982 towards part sale consideration and further the defendants challenged G.O. Ms. No.964, dated 27.6.1983, which empowers the State Government to allow surplus land to be given to the needy public. That Writ Petition was disposed of on 20.11.1984 under Ex.A10, directing the authority to consider and dispose of the applications filed by the defendants in accordance with Section 20(1) of the Act, 1976 and the guidelines issued in that behalf. The plaintiff also filed Writ Petition No.30085 of 1997 challenging the Government Memo No.12754/UC/II(2)/92-2, dated 26.9.1997. This Court, vide Ex.A32-order dated 18.11.1997, set aside the memo and remitted the matter to the Government for fresh disposal in accordance with law. In pursuance of the direction of this Court, the application of the plaintiff and the defendants has not been considered by the Government. So long as the competent authority under the Act, 1976 gives permission, the contract cannot be enforced. 25. As per Ex.A1-agreement of sale, the terms and conditions are subject to the provisions of the Act, 1976. The agreement of sale is said to have been executed in pursuance of G.O. Ms. 136, Revenue (UC-III) Department, dated 28.1.1981 (marked as Ex.A30). So long as the competent authority under the Act, 1976 gives permission, the contract cannot be enforced. 25. As per Ex.A1-agreement of sale, the terms and conditions are subject to the provisions of the Act, 1976. The agreement of sale is said to have been executed in pursuance of G.O. Ms. 136, Revenue (UC-III) Department, dated 28.1.1981 (marked as Ex.A30). Section 20(1) (a) of the Act, 1976 reads as follows: “Notwithstanding anything contained in any of the foregoing provisions of this Chapter- (a) where any person holds vacant land in excess of the ceiling limit and the State Government is satisfied, either on its own motion or otherwise, that, having regard to the location of such land, the purpose for which such land is being or is proposed to be used and such other relevant factors as the circumstances of the case may require, it is necessary or expedient in the public interest so to do, that Government may, by order, exempt, subject to such conditions, if any, as may be specified in the order, such vacant land from the provisions of this Chapter;” The above provision makes it clear that exception to the surplus land holders can be considered by the competent authority in case of transfer of the excess land to the registered co-operative societies with certain conditions. To make use of certain benefits under Ex.A30, it must be established that the land owner must be declared as surplus land owner by the competent authority and secondly the surplus land holder proposes to transfer excess land to registered societies. The plaintiff miserably failed to establish that the defendants were declared as surplus landholders and their society is a registered society as on the date of the Government Order. When these two aspects are not established, invoking the benefits of Ex.A30 does not arise at all. Therefore, the contract in pursuance of Ex.A1 cannot be enforced. In other words, it cannot be said to be a lawful agreement. Even the competent authority would not be in a position to grant exemption to the defendants to propose to transfer the excess lands to the plaintiff’s society. 26. There cannot be any dispute that specific performance can be refused in cases of contract obtained by unfair means. Fairness of contract has to be adjudged as at the time at which it was entered into. 26. There cannot be any dispute that specific performance can be refused in cases of contract obtained by unfair means. Fairness of contract has to be adjudged as at the time at which it was entered into. The unfairness on the part of the plaintiff society is that it is not registered. Except Ex.A29-letter dated 05.05.1992 from the Deputy Registrar of Co-operative Societies, not even a single scrap of paper is filed to show on what date the society is registered. It is not known whether the society is defunct. P.W.1 is not shown to be the elected President. The aspects, whether elections are being conducted every year, whether accounts of the society are being audited or not, how many members are admitted, by-laws of the society, have not been pleaded at all. All these aspects are imperative so as to conclude that the plaintiff society is a registered one or not. In the absence of such evidence, it can also be inferred that the plaintiff society is a fictitious society formed so as to take advantage of the benefits conferred under Ex.A30-Government Order and P.W.1 wanted to take unfair advantage of Ex.A30. His conduct is always an important element to be considered. From these circumstances, the plaintiff society represented by P.W.1 has not come to the court with clean hands. 27. One of the contentions raised by the learned counsel for the plaintiff is that the defendants shall co-operate with the applying necessary permission. But, as per the terms of the contract, the defendants have only to sign on the applications and there is no other obligation on the defendants to pay expenses because Ex.A1 specifically stipulates that expenses for obtaining necessary transferable permission from any authorities for the alienation of the schedule land shall be borne by the purchaser alone. It is not the case of the plaintiff that the defendants have not signed on any application when they have given the application to them so as to submit before the concerned authorities. It is an admitted fact that though the plaintiff applied for grant of exemption under Section 20(1) of the Act, 1976, to Commissioner of Co-operation and Registrar of Co-operative Societies, Andhra Pradesh through the Deputy Registrar (Housing), Cooperative Department. Government, as a policy matter, rejected the proposal for grant of land to all the societies and consequently rejected the claim of the plaintiff. Government, as a policy matter, rejected the proposal for grant of land to all the societies and consequently rejected the claim of the plaintiff. When the plaintiff challenged the said order of the Government, this Court directed the Government to consider the proposal on merits. As on today, no orders have been passed thereon. So, when the Government has not given any permission, even as on the date of disposal of the suit, the question of enforcing the contract under Ex.A1 does not arise. Though Ex.A1 is true and correct, it cannot be acted upon. Therefore, this point is answered against the plaintiff. 28. POINT No.4: “Whether the time is the essence of contract dated 21.3.1982?” In terms of Ex.A1, whether time is the essence of the contract is a question of fact and the decision on this aspect depends upon entire relevant facts of the case on record. Generally, in the context of immovable property, time is not the essence of the contract. But, this general principle is subject to the exceptions as may arise on the facts of a given case wherein the parties may make time as essence of the contract even in a case relating to immovable property. A plea has been taken by the plaintiff that the only obligation cast upon the plaintiff is to pay balance of sale consideration, that too, within three months from the date on which the defendants secure permissions from the Government to transfer the land by way of sale. P.W.1 also admitted that as per clause No.8 of Ex.A1, the sale transaction is to be completed within 9 months from the date of the agreement or within 3 months from the date of grant of permission by the State Government, whichever is earlier. 29. The relevant clause viz. clause no.7 in Ex.A1, reads thus: “The Vendors and the purchaser shall apply with all the necessary papers to the Government of Andhra Pradesh and to the Bhagyanagar Development Authority, etc. 29. The relevant clause viz. clause no.7 in Ex.A1, reads thus: “The Vendors and the purchaser shall apply with all the necessary papers to the Government of Andhra Pradesh and to the Bhagyanagar Development Authority, etc. for exemption of the land agreed to be sold from the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 and obtain necessary transferable permission from any authorities for the alienation of the schedule land and the expenses for the same shall be borne by the purchaser alone.” Similarly, clause no.8 of Ex.A1, inter alia, reads thus: “… The sale transaction is to be completed within nine months from today or within three months from the date of granting permission by State Government whichever is earlier.” Therefore, as seen from the recitals in Ex.A1, both the plaintiff society and the defendants 1 to 5 agreed that permission from the competent authorities for alienation of the land is imperative for concluding the sale transaction. From the recitals in clause no.7, it is clear that both the parties shall apply with all necessary papers to the Government of Andhra Pradesh and to the Bhagyanagar Development Authority for getting exemption of the land and also permission from the competent authorities. 30. Further more, under clause no.12, the plaintiff and the defendants have expressly agreed among themselves that in case, even with all combined efforts of the vendors and the purchaser, if the necessary transferable permission for alienation without which the schedule land cannot be transferred to the purchaser, is not granted and if for any reason the sale deed does not materialize for no fault or any laches on the part of the vendors or the purchaser, the vendors shall refund back whatever the money received from the purchaser by the vendors to the purchaser within one month. Therefore, the recitals in Ex.A1, particularly clause (12), would clearly go to show that in case permission is not granted and execution of sale deed does not materialize, in such an event, the defendants shall refund to the plaintiff the earnest money paid by the plaintiff within one month thereafter. Now, in pursuance of the above covenants, whether the plaintiff and the defendants made any effort or attempt at all for getting necessary permissions for alienation of the schedule land. Now, in pursuance of the above covenants, whether the plaintiff and the defendants made any effort or attempt at all for getting necessary permissions for alienation of the schedule land. On this aspect, the plea of the plaintiff is that the defendants, for some time, were also taking necessary steps to get the land exempted from the provisions of the Act, 1976, and in that regard, they have also filed Writ Petition No.1816 of 1983 before this Court. In so far as the steps to be taken by the plaintiff are concerned, a plea has been taken that the plaintiff on its part took number of steps for getting necessary exemption, particularly with reference to Ex.A30-G.O.Ms.No.136, dated 28.1.1981. In the evidence, P.W.1 stated that as per the terms and conditions of the agreement, the plaintiff society had to obtain permission from Hyderabad Urban Development Authority and the defendants had to obtain ULC permission. But, the said evidence is contrary to the recitals in Ex.A1. Oral evidence which runs counter to the recitals in the written documents, cannot be accepted. He stated that his application for ULC permission is still pending with the Government and the ULC authorities recommended for grant of permission about two years back and till the date of giving the evidence, the permission was not granted by the Government to the plaintiff society. He also admitted that unless the Government grants permission, sale deed cannot be executed in favour of the plaintiff society. He has not stated in his evidence as to what are the steps taken by the plaintiff in pursuance of Ex.A1, to get exemption from the Government. On the other hand, his evidence is clear that the defendants 1 to 5, in pursuance of Ex.A1-agreement, had to apply for ULC permission. Such is the case, from the evidence of P.W.1, it is clear that there are no laches or default on the part of the defendants in fulfilling their obligation in regard to getting permission from ULC authorities, in pursuance of Ex.A1-agreement. If really time is not the essence of contract, they would have recited in Ex.A1 that if necessary time would be extended by mutual agreement of both the parties in case both the parties failed to get permission from the Government. If really time is not the essence of contract, they would have recited in Ex.A1 that if necessary time would be extended by mutual agreement of both the parties in case both the parties failed to get permission from the Government. Therefore, clauses 7, 8 and 12 of Ex.A1, if read together in juxta position as they have got to be, it is abundantly clear that the plaintiff and the defendants 1 to 5 agreed that time is the essence of the contract. Ex.A1 does not contain any recital or covenant with regard to extension of time fixed for performance even by mutual consent of the parties. 31. Even assuming for a moment that, time is not the essence of the contract, the court may infer that it is to be performed within a reasonable time if the following conditions are fulfilled, viz. (1) from the express 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 (as laid down in Chand Rani v. Kamal Rani { (1993) 1 SCC 519 }). With regard to the first aspect viz. from the express terms of the contract, in the case on hand, time should be the essence of the contract, because, as per Ex.A30-G.O.Ms.No.136, dated 28.1.1981, whereunder and whereby the Government inter alia gives an exemption to surplus land holders may be considered where they propose to transfer the excess vacant land to the registered co-operative housing societies or group housing co-operative societies, irrespective of the fact whether they have come into existence prior to or after the commencement of the Act, 1976, and that the above concession shall be in operation for a period of one year from the date of issuance of that order and no further extension of time will be given. Therefore, from the above Government Order, it is clear that the surplus land holder can transfer the excess land in favour of registered co-operative housing societies and the said concession is valid up to 27.1.1982. Though in pursuance of Ex.A34-G.O.Ms.No.91, Revenue (U.C.II) Department, dated 27.1.1982, the time limit fixed in para no.3 of Ex.A30 was extended up to 31.3.1982, it is made clear in Ex.A34 that the Government have also decided that there shall not be any further extension beyond 31.3.1982. Though in pursuance of Ex.A34-G.O.Ms.No.91, Revenue (U.C.II) Department, dated 27.1.1982, the time limit fixed in para no.3 of Ex.A30 was extended up to 31.3.1982, it is made clear in Ex.A34 that the Government have also decided that there shall not be any further extension beyond 31.3.1982. There is no evidence on record to show that the Government extended time after 31.3.1982. Therefore, if time is not the essence of the contract, the defendants could not have transferred the right, title and interest in respect of the suit schedule property in favour of the plaintiff society after 31.3.1982. Ex.A1-agreement is dated 21.3.1982 i.e. just 10 days prior to the deadline fixed by the Government in Ex.A34. Knowing fully well about these stipulations imposed by the Government, the plaintiff must act swiftly so as to get ULC permission from the Government. But, the plaintiff has not taken any reasonable steps in pursuance of the said Government Order. 32. The second aspect relates to the nature of the property. The suit schedule land is situated within Gaddimalkapur village, Golconda revenue mandal, Hyderabad, a prime locality at that point of time. The extent is nearly Ac.12.21 guntas of land and it is a valuable property. With regard to third aspect viz. from the surrounding circumstances, the parties knowing fully well about the Government Orders in vogue, entered into the contract. The object of Ex.A30-G.O. Ms. No.136 is to provide house sites to the needy people of the genuine members of the registered housing societies. Therefore, the plaintiff’s object in entering into the contract must be beneficial to the members of the society. In view of the fact that Ex.A30 is only applicable to the registered co-operative housing societies, the plaintiff society must be genuine society which is registered under the APCS Act, 1964. Except giving registration no. as TAB 533, no other particulars such as how many members started the society; who are its office bearers; when it is registered; and the list of members, or whether the members were admitted in accordance with law, etc. have not been pleaded. Similarly, there is no evidence let in, to that effect. P.W.1, who claims to be the President of the plaintiff society, filed the suit. He categorically admitted in his evidence that at the time of inception of the society, they have formed the society unauthorisedly. have not been pleaded. Similarly, there is no evidence let in, to that effect. P.W.1, who claims to be the President of the plaintiff society, filed the suit. He categorically admitted in his evidence that at the time of inception of the society, they have formed the society unauthorisedly. Bye-laws of the society or the list of the members of the society, have not been produced before the trial Court. According to P.W.1, term of office of the President of the society was initially for a period three years, and now the term is 5 years and that from the date of formation of the plaintiff society, 3 elections were held. If that is the case, the society must have been formed about 15 years back from the date of giving evidence by P.W.1 i.e. 13.02.2002. So, it must have been formed around 1987 or 1988. So, from the own admission of P.W.1, the plaintiff society was not in existence by the date of execution of Ex.A1. Only to get the benefits under Ex.A30-G.O.Ms.No.136, the plaintiff must have persuaded the defendants to enter in to the contract. Under these circumstances, it can safely be said that after expiry of period mentioned in Ex.A1, the agreement of sale became inoperative and unenforceable and the parties have specifically agreed that the time to be the essence of the contract. Accordingly, this point is answered against the plaintiff. 33. POINT Nos.2 & 5: “Whether any prior permission is necessary for the plaintiff society to enter into the contract?” & “Whether the agreement of sale dated 21.3.1982 is frustrated and became unenforceable ?” P.W.1, claims to be the President of the plaintiff society, has not filed any document to show that he was duly elected by the General Body of the society as the President as on the date of filing of the suit or as on the date of entering into Ex.A2-Memorandum of Understanding. Admittedly, P.W.1 is not a party to Exs.A1 and A2. None of the parties or attestors of Exs.A1 and A2, is examined to prove the contents of the document as to what are the terms and conditions agreed upon by the parties. Since P.W.1 is not a party to the document under Ex.A1, he is not supposed to give evidence with regard to the terms and conditions of Ex.A1-contract. None of the parties or attestors of Exs.A1 and A2, is examined to prove the contents of the document as to what are the terms and conditions agreed upon by the parties. Since P.W.1 is not a party to the document under Ex.A1, he is not supposed to give evidence with regard to the terms and conditions of Ex.A1-contract. According to P.W.1, in the year 1981 or 1982, persons who are not having own houses, approached him to form a society to acquire house plots and they have discussed the matter and formed an idea to form the plaintiff society. So, unless it is shown that the plaintiff society is a registered housing society as on the date of execution of Ex.A1 viz. 21.3.1982, the plaintiff society would not derive any benefit in terms of Ex.A30. It is exclusively within the knowledge of P.W.1 whether the plaintiff society is a registered one or not. He has not filed list of members of the plaintiff society by the date of filing of the suit or about the resolutions of the managing committee to purchase the suit schedule land for the plaintiff society. No resolution of executive body of the plaintiff is filed to show that the plaintiff society can enter into agreement with defendants. According to P.W.1, Y.Krishnaiah, L.Pratap Reddy, T.Narasimha Reddy, Nageswara Rao and some others were in the organizing committee of the plaintiff society. But, none of them has been examined. Further, according to him, organizing body of plaintiff society elected the Managing Committee consisting of P.W.1 as President, Secretary and Treasurer and three other members. According to P.W.1, Y.Krishnaiah, L.Pratap Reddy, T.Narasimha Reddy, Nageswara Rao and some others were in the organizing committee of the plaintiff society. But, none of them has been examined. Further, according to him, organizing body of plaintiff society elected the Managing Committee consisting of P.W.1 as President, Secretary and Treasurer and three other members. Books of the society and the correspondence made with the Registrar of Societies are not filed, except Ex.A29, which is a letter dated 5.5.1992 addressed by the Deputy Registrar (Housing), Co-operative Department, Hyderabad to the Commissioner for Cooperation and Registrar of Co-operative Societies, Andhra Pradesh, Hyderabad, whereunder it is stated that he was sending proposals of Sri Tirumala Venkateswara Co-operative Housing Society Limited, Hyderabad for grant of exemption under the Act, 1976 for purchase of land and that Superintendent of the said office verified the records of the society in connection with the genuine of the society membership transactions involved with the land owner for purchase of land and found correct, and that the accounts of the society were audited up to 1990-91 and that the society is working satisfactorily and the membership and the transactions involved with land owner is genuine. The said letter is silent as to when the society was registered. It is also silent with regard to the office bearers of the society. Therefore, all the documents relating to the plaintiff society including registration of the society, are exclusively within the knowledge of the plaintiff society. But, in this regard, the plaintiff has not produced not even a single scrap of paper with regard to the affairs of the plaintiff society, though the same has been vehemently disputed by the defendants. 34. Under Section 114 (g) of the Indian Evidence Act, 1872, the court may presume that the evidence which could be and is not produced, would, if produced, be unfavourable to the person who withholds it. Suppression of useful evidence naturally leads to the inference that the evidence, if produced, would go against the party who withholds it. As the plaintiff society is claiming the benefits under Ex.A30-Government Order, it is for the plaintiff to establish that it is a registered society. Since the proposition of fact with regard to registration of the society is exclusively within the knowledge of P.W.1, the burden is on the plaintiff society to establish the same. As the plaintiff society is claiming the benefits under Ex.A30-Government Order, it is for the plaintiff to establish that it is a registered society. Since the proposition of fact with regard to registration of the society is exclusively within the knowledge of P.W.1, the burden is on the plaintiff society to establish the same. But, P.W.1 miserably failed to establish or lead evidence that the society is entitled for the benefits under Ex.A30-Government Order. In view of the fact that the relief of specific performance is a discretionary relief, the plaintiff must come to the court with clean hands. The plaintiff must show equity for the entitlement of the benefit. Unless the plaintiff society is a registered in pursuance of the APCS Act, 1964, it cannot purchase surplus land from the defendants The pleadings, the evidence and the documents filed in support of the plaintiff’s case, are vague, ambiguous and uncertain with regard to registration of society and its objectives, powers and functions. Though the plaintiff is not entitled for the benefits, the plaintiff society wanted to take advantage of the situation because the plaintiff society will get surplus land of the defendants at the cheaper rates fixed under Ex.A33. As per Ex.A33-Government Order, the rates fixed by the Government are about Rs.6/- or Rs.7/- per square meter. Such is the case, by virtue of this agreement Ex.A1, the plaintiff would undoubtedly get unfair advantage. 35. Under Section 56 of the Indian Contract Act, 1872, an agreement to do an act impossible in itself, is void. A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. The contract becomes unlawful in this case because the permission cannot be obtained from the Government. Further, where the entire performance of a contract becomes substantially impossible without any fault on either side, the contract is prima facie dissolved by the Doctrine of Frustration. The impossibility is that the defendants had not declared as surplus landholders and the plaintiff society is not registered. Therefore, from the nature of the contract and the surrounding circumstances that the parties have contracted on the basis that some fundamental thing or state of things will continue to exist, it can safely be concluded that the Doctrine of Frustration comes into operation. Therefore, from the nature of the contract and the surrounding circumstances that the parties have contracted on the basis that some fundamental thing or state of things will continue to exist, it can safely be concluded that the Doctrine of Frustration comes into operation. Generally, a contract which is incapable of performance at the time when it is made, will be void ab initio. Therefore, the doctrine of frustration is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of an act agreed to be done and hence comes within the purview of Section 56 of the Indian Contract Act, 1872. On this aspect, the learned counsel appearing for the appellants relied on a decision in M.Meenakshi & others v. Metadin Agarwal (dead) by LRs. & others, (2006) 7 Supreme Court Cases 470 wherein it is held thus: (para 30) “The parties were aware of the proceedings under the 1976 Act. The plaintiff-respondents were also aware that sanction under the said Act is necessary. The consequence for non-grant of such sanction was expressly stipulated. Even the parties were clear in their mind as regards the consequences of willful non-execution of a deed of sale or willful refusal on their part to perform their part of contract.” In this case also, in Ex.A1-agreement, it is clearly stated that in clause no.12 that in the event permission is not granted, the vendors shall refund back whatever the money received from the purchaser to the purchaser. 36. Under Section 20 (2) (b) of the Specific Relief Act, 1963, where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff, the court may refuse to exercise its discretion to decree specific performance. The question of hardship of a contract has to be judged as to the time at which it is entered into. Involvement of hardship on the defendants in this case can be said to be on two aspects viz. (i) that the plaintiff society is not registered and (ii) the land in question of defendants is not declared as surplus. The defendants did not foresee the same because non-registration of the society has not been brought to the notice of the defendants by the plaintiff. (i) that the plaintiff society is not registered and (ii) the land in question of defendants is not declared as surplus. The defendants did not foresee the same because non-registration of the society has not been brought to the notice of the defendants by the plaintiff. On the other hand, non-performance would not involve any hardship to the plaintiff because they knew well that their society is not registered, but still they want to gain advantage of the provisions of Ex.A30-G.O.Ms. No.136. This aspect of the case has not at all been considered by the trial Court though a specific plea has been taken in the written statement that the conditions laid down under GO Ms.No.136 are not satisfied by the plaintiff and some conditions were not even existing at the time of execution of Ex.A1. D.W.1 stated that though the defendants had no necessity to sell the property, P.Narasimha Reddy and P.Nageswara Rao persuaded them to enter into the agreement of sale with the plaintiff society and that the plaintiff agreed to that the agreement be enforced only after three months from the date of receipt of permission from the Government. D.W.1 specifically stated that plaintiff offered to purchase the land as per G.O. Ms. No.136, dated 28.1.1981 and the plaintiff failed to report compliance of specific guidelines under the said Government Order. All these aspects in the evidence of D.W.1 remained unchallenged. Therefore, it is held that Ex.A1-agreement of sale dated 21.3.1982 is frustrated and unenforceable. Accordingly, these points are answered against the plaintiff. 37. POINT No.3 & CROSS OBJECTIONS: “Whether the memorandum of understanding dated 22.11.1990 and subsequent agreement dated 23.11.1990 are true, valid and binding?” Ex.B4-Memorandum of Understanding was executed on 22.11.1990, which shows that even after lapse of 8 years, the matter is at stand still for obvious reasons, and due to the stalemate, majority of the members who are shelterless are frustrated and therefore both the parties agreed to pass on plots in Ac.5.00 of land only as against Ac.12.5 as per the agreement to the members of the society and the plots in the balance of land will be passed on the persons suggested by nominees of defendants duly admitting them as members of the society and the entire transaction would be cleared within two months from that day in batches. The members also agreed to pay the land cost at Rs.70/- per square yard which has to be paid at the time of execution of the document. On the next day, P.W.1, as President of the Society, executed Ex.B5 that in supercession of earlier two agreements dated 21.3.1982 and 22.3.1982, it is agreed between the parties that the sale price shall be Rs.2,90,000/- per acre in other respects and the two agreements as well as Ex.A2-Memorandum of Understanding dated 22.11.1990 and the society’s letter dated 22.11.1990 shall stand except the price mentioned in the Memorandum of Understanding. These two documents viz. Exs.B4 and B5 came into existence in pursuance of Ex.A1. Though the agreement dated 22.3.1982 is referred to, no such agreement is filed by both the parties. Even by the date of Exs.B4 and B5, the defendants were not declared as surplus landholders. Further more, the benefit under Ex.A30-Government Order to transfer the land to registered societies by surplus landholder is not available to them. Though Exs.B4 and B5 are acted upon, they cannot be enforceable. Both parties know fully well about the impossibility of the contract to be enforced, because, even by the date of execution of Exs.B4 and B5, a surplus landholder cannot transfer the right even to a registered society. Further more, as per clause (6) of Ex.B4, the entire sale transaction has to be completed within two months from the date of execution. As the transaction is not completed, Ex.A2 was got issued by the defendants duly canceling the agreement. These documents are found to be true and correct and Exs.B4 and B5 were acted upon. The findings of the trial Court in respect of Exs.B4 and B5 are not shown to be improper or incorrect. The findings are based upon proper appreciation of the evidence on record. 38. It is specifically stated that in supercession of the earlier agreements, these two agreements Exs.B4 and B5 were made. But, as seen from these two documents, it is clear that the other recitals in the earlier agreements would remain unaffected by execution of these two documents, except that the transaction has to be completed within two months from the date of execution of Ex.B4. Even thereafter, the plaintiff has not taken any proper and effective steps so as to get permission from the Government. Even thereafter, the plaintiff has not taken any proper and effective steps so as to get permission from the Government. No doubt, both the parties have to obtain necessary permission from the Government, but the expenses are to be incurred by the plaintiff society for getting the permissions, that indicates that the defendants have to sign formally the applications before the competent authority for the purpose of processing and that the processing work has to be undertaken by the plaintiff. From the evidence of plaintiff, it is clear that in terms of Ex.A1, the defendants performed their obligation. But, there is no evidence to show about what are the steps taken by the plaintiff in pursuance of Ex.A1. Even P.W.1 admitted that as per Ex.A1, the plaintiff society has to pay balance sale consideration after obtaining ULC permission and obtain the sale deed from the defendants 1 to 5. The evidence of P.W.1 that the defendants are under obligation to obtain ULC permission, is incorrect. Except the bald averment that the defendants started noncooperation in pursuance of Ex.A1, P.W.1 did not specifically state in what respect or in what manner the defendants had shown non-cooperation for obtaining necessary permission. Accordingly, this point is answered in favour of the defendants, and the cross-objections are liable to be dismissed. 39. On issue No.3, the trial Court has completely ignored the fact whether the plaintiff society is entitled for the benefits under Ex.A30-G.O.Ms.No.136 or not, because, under the said Government Order, as on that date the plaintiff society must be a registered one. There is absolutely no evidence to show that the plaintiff society is a registered one as on that date. Though Ex.A1 is admitted, still it cannot be acted upon unless the plaintiff shows that it is a registered society by the date of execution of ExA1. The finding of the trial Court is that the suit schedule property is converted from a recreation zone to residential zone in terms of G.O.Ms. No.263. But, there is no such evidence as to when the land was converted into a residential zone. The plaintiff failed to produce even a single document to show that they paid conversion charges or the steps taken by them before the competent authority for the conversion. Hence, Ex.A1 is unenforceable and not binding on the defendants. 40. No.263. But, there is no such evidence as to when the land was converted into a residential zone. The plaintiff failed to produce even a single document to show that they paid conversion charges or the steps taken by them before the competent authority for the conversion. Hence, Ex.A1 is unenforceable and not binding on the defendants. 40. Further more, specific pleas have been taken by the defendants that the declarations given by defendants 1 to 5 under Section 6(1) of the Act, 1976 are still pending, and that the land to be retained by the defendants had to be ascertained and the surplus land has to be identified and demarcated, and unless such a recourse is done, the purchaser cannot seek specific performance of the alleged contract because there is no specific consciousness arrived at, and the property sought to be sold is not identified. Further more, according to the evidence of D.W.1, the land in question continues to be an agricultural land and no conversion of the agricultural land into nonagricultural land is effected, and that the plaintiff has not deposited or not shown interest at any time to pay the remaining balance of sale consideration, and therefore, the defendants issued notice terminating the contract vide legal notice dated 28.9.1992 under Ex.B10. An explanation was given by D.W.1 that they cancelled Ex.A1 as the plaintiff society did not offer any money for payment of the value of the land and that the plaintiff did not show that they had sufficient money to go ahead with the transaction. 41. POINT Nos. 6 & 7 : “Whether the plaintiff is entitled to refund of the amount paid by it?” & “To what relief?” In view of the above discussion, it is clear that time is the essence of the contract and the plaintiff miserably failed to fulfill its obligation under Ex.A1.-agreement of sale, and the plaintiff is not entitled for the benefits in terms of Ex.A30-G.O.Ms. No.136, and consequently, the contract is unenforceable. Further, the contract gets frustrated because even as on the date of the decree, permission was not granted by the ULC authority. Even if the permission is granted, land in question cannot be transferred in favour of the plaintiff, because, it is not a registered society as on the date of execution of Ex.A1. Further, the contract gets frustrated because even as on the date of the decree, permission was not granted by the ULC authority. Even if the permission is granted, land in question cannot be transferred in favour of the plaintiff, because, it is not a registered society as on the date of execution of Ex.A1. Though P.W.1 stated that permissions are pending, no such plea has been taken in the plaint because there is no allegation in the plaint that they made application to the government and the same are pending with the Government. On the other hand, it is specifically stated in the pleadings that the Government of Andhra Pradesh vide G.O. Ms. No.964, Revenue (UC-II) Department, dated 27.6.1983, rejected all the pending applications seeking exemption under the provisions of the Act, 1976. The same is not denied or disputed. Hence, it can be treated as admission. Inspite of direction by this Court in Ex.A9, the Government have not passed any orders as on the date of decree. By the date of passing the said order, the benefits under Ex.A30 cannot be extended to the plaintiff as it is not a registered housing society. So, the plaintiff is not entitled for the equitable relief of specific performance of Ex.A1. 42. In the result, the impugned judgment and decree of the trial court in so far as it relates to grant of specific performance in pursuance of Ex.A1-agreement of sale is liable to be set aside and the same is, accordingly, set aside. However, the plaintiff is entitled for refund of the sale consideration paid by it, from the defendants 1 to 5, with interest @ 12% per annum from the date of the payment till the date of realization. 43. The appeal is, accordingly, allowed, with costs, and the Cross-objections are dismissed.