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2013 DIGILAW 91 (AP)

P. Kupparaju v. A. Thyagaraju

2013-02-12

L.NARASIMHA REDDY

body2013
JUDGMENT : The appellant filed O.S.No.34 of 2003 in the Court of the Additional Senior Civil Judge, Tirupati, for specific performance of agreement of sale, dated 31.07.2002, against the sole respondent herein. It was pleaded that a plot of 313 sq. yards described in the suit schedule was offered for sale by the respondent for a total consideration of Rs.4,66,500/-and on the date of agreement, advance of Rs.50,000/- was paid. According to the appellant, 30.10.2002 was the date fixed for execution of sale deed and for payment of balance sale consideration, but, the respondent did not fulfil his obligation to clear the intrusions on the northern side of the plot. It was also his case that in addition to the advance of Rs.50,000/-, he paid a further sum of Rs.25,000/-on 12.08.2002 and when he went to the house of the respondent twice before 30.10.2002, the latter was not available in the house. With these and other relevant pleas, he prayed for decree of specific performance of agreement of sale. 2. The respondent filed written statement and opposed the suit. He pleaded that the appellant entered into agreement only after verification of the title and the site on the spot, and still he did not turn up for registration of the sale deed on 30.10.2002. He stated that time being essence of contract, he was present in the office of the Sub-Registrar on 30.10.2002 and the appellant did not turn up. He got issued a notice on the same day marked for the same benefit. 3. The trial Court dismissed the suit through judgment dated 31.01.2007. Aggrieved by that, the appellant filed A.S.No.29 of 2007 in the Court of the V Additional District Judge, Tirupati. The appeal was dismissed on 25.06.2012. Hence, the Second Appeal. 4. Sri Nimmagadda Satyanarayana, learned counsel for the appellant, submits that the trial Court and the lower appellate Court did not take into account the fact that the appellant was always ready and willing to perform his part of contract and it was the respondent, who did not ensure that the intrusions on the northern side of the suit schedule property were removed. He contends that having not been available at his house to comply with the demand, the respondent has pretended that he went to the office of the Sub-Registrar on 30.10.2002 and that fact was taken into account by the Courts below. He contends that having not been available at his house to comply with the demand, the respondent has pretended that he went to the office of the Sub-Registrar on 30.10.2002 and that fact was taken into account by the Courts below. He submits that the attendant circumstances establish that the time was not the essence of contract and the suit ought to have been decreed. 5. On the basis of the pleadings, the trial Court framed the following issues for consideration: 1. Whether the time is essence of contract for the suit agreement dated 31.07.2002? 2. Whether the suit agreement is in-sufficiently stamped and un-registered and it is hit by section 4/1999? 3. Whether the plaintiff is entitled for specific performance of contract for the suit agreement of sale dated 31.07.2002? 4. To what relief? 6. On behalf of the appellant, PWs.1 to 3 were examined and Exs.A1 to A5 were marked. On behalf of the respondent, DWs.1 and 2 were examined and Exs.B1 to B3 were marked. 7. The suit was dismissed and in the appeal, the lower appellate Court framed the following points for consideration: 1. Whether time is essence of contract or not? 2. Whether the appellant was always ready and willing to perform his partof contract? 3. Whether the appellant is entitled for specific performance of agreement of sale under Ex.A1 or not? 4. To what relief? 8. Those points were answered in favour of the respondent. 9. The respondent did not dispute that he executed the agreement of sale, dated 31.07.2002, marked as Ex.A1. The perusal of Ex.A1 discloses that the transactions must be concluded on or before 30.10.2002. That stipulation makes the time essence of the contract. The appellant could have pleaded to the contrary if only he paid and the respondent received any amount beyond that date or that the respondent came forward with any plea to excuse his inability to execute the sale deed before that date. That was not even pleaded by the appellant. There is nothing on record to disclose that the appellant made any offer to pay the balance of consideration on or before 30.10.2002. He sought to take shelter for his default on a plea that the respondent did not ensure the removal of intrusions on the northern side of the plot. 10. That was not even pleaded by the appellant. There is nothing on record to disclose that the appellant made any offer to pay the balance of consideration on or before 30.10.2002. He sought to take shelter for his default on a plea that the respondent did not ensure the removal of intrusions on the northern side of the plot. 10. The evidence on record discloses that the respondent was successful in eliciting from the witnesses examined on behalf of the appellant that the transaction was settled only after physical verification of the plot and after thorough negotiations. In case there exists any obligation on the part of respondent to clear off any encroachment or intrusion, a mention thereof would have occurred in the agreement itself. When every step, that is required to be taken by the respective parties, is clearly mentioned in the agreement, Ex.A1, the appellant can not be permitted to improve that. 11. The very fact that the respondent got issued Ex.B1 on 30.10.2002 itself shows that the appellant did not turn up for registration and shows the readiness on the part of the former. The fact that the appellant was not ready and willing to pay the balance of consideration is amply established by the reply marked as Ex.B2, dated 09.11.2002. In that reply, the appellant stated that non-payment is on account of the alleged failure to clear the intrusions. The trial Court and the lower appellate Court have examined the matter in the correct angle and no substantial question of law arises for consideration. 12. Hence, the Second Appeal is dismissed. There shall be no order as to costs. 13. The Miscellaneous Petitions filed in this Second Appeal shall also stand disposed of.