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2022 DIGILAW 505 (AP)

P. Bhaskara Peddi Raju v. K. Venkata Narasayamma

2022-05-06

SUBBA REDDY SATTI

body2022
JUDGMENT : Unsuccessful plaintiff filed the above appeal, assailing the judgment and decree dated 29.10.2004 passed in O.S.No.93 of 1993 on the file of learned Senior Civil Judge, Bhimavaram. 2. For the sake of convenience, parties to this appeal are referred to as they were arrayed in suit. 3. JUDGMENT : Unsuccessful plaintiff filed the above appeal, assailing the judgment and decree dated 29.10.2004 passed in O.S.No.93 of 1993 on the file of learned Senior Civil Judge, Bhimavaram. 2. For the sake of convenience, parties to this appeal are referred to as they were arrayed in suit. 3. The averments in plaint, in brief, are that the defendant/owner of the suit schedule property offered to sell the same; that the bargain was settled for a sum of Rs.4,30,500/-; that on 21.04.1990, the defendant executed agreement of sale in favour of the plaintiff and received an amount of Rs.20,500/- as advance; that the balance sale consideration is to be paid by 15.08.1990 and the defendant shall execute sale deed in favour of the plaintiff or his nominee; that if for any reason, the plaintiff fails to pay the balance sale consideration and obtain sale deed by 15.08.1990, the balance sale consideration payable shall carry 24% per annum; that if the defendant fails to perform his part of contract, the defendant shall be liable for legal consequences; that the property is to be delivered on the date of execution of sale deed; that the plaintiff made part payment of Rs.40,000/- on 28.04.1990 out of balance sale consideration of Rs.4,10,000/- and the defendant endorsed on reverse side of the agreement and it was attested by the husband of the defendant; that on 15.06.1990, the plaintiff paid part payment of Rs.20,000/- and the same was endorsed on the reverse side of the agreement; that plaintiff is always ready and willing to perform his part of the contract and has been demanding the defendant and her son to execute sale deed; that the son of the defendant requested the plaintiff to exclude Ac.0-10 cents on Eastern side of the property mentioned in the agreement of sale, for personal use of the family, but the said proposal was not accepted by the plaintiff; that in the meantime husband of the defendant died; that the defendant left to Bhilai and plaintiff was unable to contact the defendant; that the defendant and her son postponed execution of sale deed and the delay was occurred due to the latches on the part of the defendant; that the defendant has to get certificate from income tax authorities; that the defendant is guilty of latches; that the defendant got issued legal notice through her Advocate on 28.01.1993 with false allegations, for which, reply notice, dated 20.06.1993 was issued by the plaintiff; that the defendant again sent rejoinder with all false allegations contending that the plaintiff was not ready with balance of sale consideration; that the defendant has no manner of right to cancel the agreement and hence filed the suit seeking specific performance of agreement or an alternative relief of refunding the advance consideration with interest at 24% per annum.- 4. The defendant filed written statement and contended inter alia that the suit schedule property is situated at the outskirts of Bhimavaram in China Amiram village abutting Juvvalapalem road towards South and the said area is proposed to be included within the limits of Bhimavaram Municipality; that the value of the lands in the vicinity have been increasing rapidly; that the defendant put up the suit schedule property for sale; that the plaintiff bargained with the defendant for purchasing the property for sale consideration of Rs.4,30,000/-; that as per terms of agreement of sale, plaintiff should pay balance sale consideration by 15.08.1990; that the plaintiff was never ready to perform his part of contract and has not made ready the balance sale consideration; that the defendant demanded plaintiff through her husband and son to pay the balance sale consideration, but the plaintiff neither made the balance sale consideration ready nor came forward to obtain sale deed; that the averment that defendant’s son requested the plaintiff to exclude Ac.00-10 cents is not true and correct; that the husband of the defendant died on 27.09.1990 and the defendant is living with her sons at Bhimavaram and she never went to Bhilai; that the defendant is always ready to obtain income tax clearance and to fulfill all other obligations; that the defendant got issued legal notice through Advocate on 28.01.1993 to the plaintiff to obtain sale deed by paying the balance sale consideration together with interest within one month from the date of receipt of the notice fixing the time for one month as essence of the contract; that in the notice defendant made it clear that the agreement of sale stands cancelled in case of failure on the part of the plaintiff and she would forfeit the amount; that the plaintiff received notice on 02.02.1993 and sent reply notice on 20.06.1993 with false allegations; that defendant immediately sent rejoinder, dated 05.07.1993 to the reply and gave one more chance to the plaintiff to obtain sale deed by fixing time as essence of the contract; that even after issuance of rejoinder, plaintiff did not pay balance sale consideration and failed to obtain sale deed within the time fixed and thus, the agreement of sale stood cancelled; that the prices of the sites near the suit schedule property have gone up four times from the date of the agreement; that the plaintiff is guilty of latches; that the allegation of the plaintiff about the request of defendant’s son to exclude Ac.00-10 cents is only a story invented by him to cover up his latches in performing his part of contract and hence prayed to dismiss the suit. 5. The trial Court framed the following issues for consideration: 1. Whether the plaintiff is entitled to the specific performance of agreement of sale, dated 21.04.1990? 2. Whether time is the essence of the contract as started in the agreement of sale? 3. Whether the plaintiff is not entitled for alternative relief of the refund of the advance amount? 4. Whether the suit is barred by time? 5. To what relief? Additional Issues, dated 26.09.2003 1. Whether the defendant fixed time as essence of the contract by issuing registered notices, dated 28.01.1993 and 05.07.1993 to the plaintiff? 2. Whether the defendant is not entitled to fix time as the essence of the contract? 3. Whether the plaintiff was and is always ready and willing to perform his part of the contract? 6. During the trial, the plaintiff examined himself as PW1 besides examining scribe of agreement of sale as PW3. Exs.A1 to A8 were marked. On behalf of the defendant, her son was examined as DW1 and Bank Manager of the Cathelic Syrian Bank was examined as DW2. Exs.B1 to B4 were marked through DW1 and Exs.X1 to X3 were marked through DW2. 7. The Trial Court by judgment and decree, dated 29.10.2004 negatived the relief of the specific performance and granted alternative remedy of refund of the amount of Rs.1,43,642/- with proportionate interest at 12% per annum on total amount of Rs.80,500/- from the date of the suit till the payment, creating charge over the suit schedule property. Aggrieved by the same, plaintiff filed the present appeal. 8. Heard Sri P. Sri Raghu Ram, learned Senior Counsel appearing for the appellant/plaintiff and Sri E.V.S.S.Ravi Kumar, learned counsel appearing for the respondent/defendant. 9. Learned Senior Counsel for the plaintiff would contend that the Trial Court having found that time is not essence of contract, ought to have decreed the suit. He would further contend that the plaintiff marked documents with regard to his financial status and his readiness and willingness to perform his part of the contract, within the stipulated time. He would also contend that the evidence of PW1 coupled with Exs.X1 to X3 prove that the plaintiff got sufficient amounts. He would also contend that due to the failure of the defendant in getting income tax clearance, the plaintiff would not be non-suited. Learned Senior Counsel relied upon judgment rendered in P. Ramasubbamma vs. V. Vijayalakshmi and Ors. He would also contend that the evidence of PW1 coupled with Exs.X1 to X3 prove that the plaintiff got sufficient amounts. He would also contend that due to the failure of the defendant in getting income tax clearance, the plaintiff would not be non-suited. Learned Senior Counsel relied upon judgment rendered in P. Ramasubbamma vs. V. Vijayalakshmi and Ors. (Civil Appeal No.2095 of 2022). Basing on the above judgement the learned Senior Counsel would submit that once the execution of agreement to sell and the payment/receipt of advance substantial sale consideration were admitted by the vendor, thereafter nothing further was required to be proved by the vendee and suit for specific performance is to be decreed. 10. Per contra, Sri E.V.V.S.Ravi Kumar learned counsel for the respondent would contend that the appellant/plaintiff was never ready and willing to perform his part of contract. He would contend that agreement of sale was entered into on 21.04.1990 and the time fixed to perform contract is by 15.08.1990. Since the plaintiff did not come forward to perform his part of contract, defendant issued Ex.A4, notice, dated 28.01.1993 for which the plaintiff issued a belated reply, dated 20.06.1993 under Ex.A5, raising false pleas. He also further contended that no notice was issued by the plaintiff under form 47 and 48 of appendix A demanding the defendant to perform her part of contract. He would also contend that the defendant issued rejoinder, dated 05.07.1993 to the reply notice and expressed readiness to execute the sale deed, however, the plaintiff did not make the amount ready. Hence, mere averment of readiness and willingness is not sufficient and eventually prayed the Court to dismiss the appeal. He placed reliance on 1) His Holiness Acharya Swami Ganesh Dassji vs. Sita Ram Thapar ( 1996 (4) SCC 526 ), 2) Umabai and Another v. Nilkanth Dhondiba Chavan (Dead) By Lrs. and another ( 2005 (6) SCC 243 ), 3) Kalawati (Dead) Through Legal Representatives and Others v. Rakesh Kumar and Others ( 2018 (3) SCC 658 ), 4) Bhavyanath represented by Power of Attorney Holder v. K.V. Balan (Dead) Through Legal Representatives ( 2020 (11) SCC 790 ). 11. On the basis of the above pleadings and arguments the following points would arise for consideration: 1. Whether the plaintiff is entitled to specific performance of contract of sale basing on agreement, dated 21.04.1990? 2. 11. On the basis of the above pleadings and arguments the following points would arise for consideration: 1. Whether the plaintiff is entitled to specific performance of contract of sale basing on agreement, dated 21.04.1990? 2. Whether the plaintiff is always ready and willing to perform his part of contract? 3. Whether time is essence of the contract as per understanding of the parties in contract of sale, dated 21.04.1990? 4. Whether the defendant fixed time as essence of the contract by issuing Ex.A4, dated 28.01.1993 and Ex.A6, dated 05.07.1993? 5. Whether the suit is barred by limitation? 6. To what relief? POINT NOS.1 to 5: Since all these points are inter-connected, they are all dealt with together. 12. As per Ex.A1, the suit schedule property is to an extent of Ac.0-41 cents or 1653 square meters in R.S.No.100/3 of China Amiram village of Bhimavaram Mandal, West Godavari District. Total sale consideration amount is Rs.4,30,500/-. An amount of Rs.20,500/- was paid as an advance and the plaintiff had to pay the balance sale consideration of Rs.4,10,000/- by 15.08.1990 and get the sale deed executed either in his favour or his nominee. The agreement further recites that if the plaintiff drags on the matter without performing his part of contract, he had to pay interest at Rs.2/- and to get his document executed. If the defendant fails to perform her part of the contract, she would be liable for legal consequences. Pursuant to the agreement of sale, Rs.40,000/- was paid on 28.04.1990 and Rs.20,000/- was paid on 15.06.1990 and the endorsements were scribed on the backside of agreement of sale and they are marked as Exs.A2 and A3. 13. The plaintiff after payment of advance of Rs.40,000/- on 28.04.1990 and Rs.20,500/- on 15.06.1990, did not move his little finger, which constrained the defendant to issue legal notice, dated 28.01.1993 under Ex.A4. By issuing Ex.A4, legal notice, the defendant called upon the plaintiff to pay balance sale consideration together with interest within one month from the date of receipt of the notice and to get the sale deed executed for the suit schedule property and also fixed time as essence of contract. The defendant also made it clear that if the plaintiff fails to perform his part of the contract, the defendant would cancel the agreement and forfeit the amount. 14. The defendant also made it clear that if the plaintiff fails to perform his part of the contract, the defendant would cancel the agreement and forfeit the amount. 14. The plaintiff issued reply notice, dated 20.06.1993 under Ex.A5 i.e. after five months of issuance of Ex.A4. The plaintiff asserted that he made ready the balance sale consideration with interest as stipulated in the agreement and also the requisite amount for stamps and registration and informed the same to the defendant’s son and husband and the son of the defendant requested the plaintiff to exclude Ac.0-10 cents on the Eastern side of the suit schedule property for personal use of their family for which the plaintiff did not agree. It was further stated in the reply notice that the husband of the defendant died and the defendant went to Bhilai, as such plaintiff could not approach the defendant. Hence, the delay occurred in execution of regular sale deed. The plaintiff further asserts that he is ready and willing to perform his part of contract and stated that because of the attitude of the defendant, it has been delayed. It was further stated in the reply notice that he is ready to deposit balance consideration inclusive of interest in the bank to show his bonafides and the plaintiff had to get clearance certificate from the Income Tax Department. It was further stated that reply could not be issued immediately for the reason that the defendant’s son continued deliberations with the plaintiff through their common friend with regard to exclusion of Ac.0-10 cents out of the suit schedule property. 15. For the reply notice, defendant got issued rejoinder notice, dated 05.07.1993 under Ex.A6, wherein it was stated that the defendant is always ready and willing to execute sale deed as per terms of agreement of sale and the son of the defendant never asked the plaintiff to exclude Ac.0-10 cents from the suit schedule property either through M.S. Subrahmanyam Raju or through any other person and that she is ready to execute sale deed for Ac.0-41 cents. It was also stated in the rejoinder that she never went to Bhilai and plaintiff is responsible for causing delay and that income tax clearance certificate would be obtained after execution of sale deed and before its registration. In rejoinder notice, defendant again fixed one month period making time as essence of the contract. It was also stated in the rejoinder that she never went to Bhilai and plaintiff is responsible for causing delay and that income tax clearance certificate would be obtained after execution of sale deed and before its registration. In rejoinder notice, defendant again fixed one month period making time as essence of the contract. After issuance of Ex.A6- rejoinder, plaint was presented on 16.08.1993. 16. In the instant case, no notice was issued by the plaintiff in terms of forms 47 and 48 appended to appendix A of CPC which is mandatory. The plaintiff by issuing notice had to plead and prove that he has always been ready and willing to perform his part of contract. 17. The mere averment in the plaint that he is ready and willing to perform his part of contract is not sufficient. The plaintiff had to plead and prove that he has always been ready to perform his part of contract since the date of execution of agreement of sale till execution of the document. 18. In His Holiness Acharya Swami Ganesh Dassji vs. Sita Ram Thapar, the Hon’ble Apex Court held as under: “There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the execution of the agreement, i.e., by 27.2.1975. The draft sale deed was not returned after being duly approved by the petitioner. The factum of readiness and willingness to perform plaintiffs part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The factum of readiness and willingness to perform plaintiffs part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready nor capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bite for the time which disentitles him as time is the essence of the contract. 19. In Umabai and Another v. Nilkanth Dhondiba Chavan (Dead) By Lrs. and another, the Hon’ble Supreme Court held as under: “In terms of Form Nos. 47 and 48 appended to Appendix A of the Code of Civil Procedure, 'the plaintiff must plead that he has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice' or 'the plaintiff is still ready and willing to pay the purchase-money of the said property to the defendant'. 34. In Bank of India Ltd. V. Jamsetji A.H. Chinoy AIR 1950 PC 90 , it was held : "...It is true that plaintiff 1 stated that he was buying for himself, that he had not sufficient ready money to meet the price and that no definite arrangements had been made for finding it at the time of repudiation. But in order to prove himself ready and willing a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction. The question is one of fact and in the present case the appellate Court had ample material on which to found the view it reached..." 20. In Bhavyanath represented by Power of Attorney Holder v. K.V. Balan (Dead) Through Legal Representatives, the Hon’ble Apex Court held as under: “We have noticed the law to be that it does not suffice for the Plaintiff in a suit for specific performance to establish that the Defendant was in breach to seek a decree for specific relief. The Plaintiff must further establish, if it is contested that he was ready and willing from the date of the contract to perform his obligations.” 21. The Plaintiff must further establish, if it is contested that he was ready and willing from the date of the contract to perform his obligations.” 21. Thus, the basic principle behind Section 16 (c) of the Specific Performance Act, read with Explanation (ii) is that any person seeking benefit of specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief and the Court is to grant relief on the basis of the conduct of the person seeking relief and that the meaning of such averment of readiness and willingness must be that non-completion of the contract was not the fault on the part of the plaintiffs and that they were disposed and able to complete it had it not been renounced by the defendant. 22. Readiness and willingness are quite distinct and different in the context of Section 16 (c) of the Specific Relief Act. Readiness connotes financial capacity of one who seeks to enforce specific performance. Willingness distinctly refers to his personal or mental inclination to seek performance of the contract. The two words employed by the Statute are not mere surplus age for the other or even words with the connotation that have closely resembling status. The two being distinct, both must be pleaded and proved independently of the other throughout, from the time the contract is entered into and till the suit is filed, and also pending suit till a decree is passed. Whether the plaintiff proved his readiness and willingness and his capacity pursuant to the agreement of sale is to be considered? 23. With regard to the plaintiff’s readiness and willingness as well as capacity to pay the balance sale consideration, plaintiff deposed that he cannot say whether there is any document with him with regard to having much cash or balance during that period. In fact, plaintiff deposed that he got balance Rs.1,00,000/- to Rs.2,00,000/- in his house. However, he paid an amount of Rs.20,500/- towards advance and did not produce any document to show that he was having so much cash by the date of Ex.A1 or till filing of the suit. Though the plaintiff stated that he received Rs.6,00,000/- towards sale consideration of his bungalow at Banjara Hills, Hyderabad, he could not answer the question as to where the said amount was kept. Though the plaintiff stated that he received Rs.6,00,000/- towards sale consideration of his bungalow at Banjara Hills, Hyderabad, he could not answer the question as to where the said amount was kept. The plaintiff also stated in his examination that he was having Rs.4,00,000/- to Rs.5,00,000/- at the time of Ex.A3, endorsement, however, he failed to explain the reason why he could not pay the amount and get the sale deed executed. No averment was made either in the reply notice or in the plaint with regard to his possessing of Rs.4,00,000/- to Rs.5,00,000/-. The plaintiff deposed with regard to availability of cash, which is extracted herein : “I have no accounts. Unless I see my accounts I cannot say that I am made an entry of Rs.5 lakhs in my account. I am an income tax assessee. The amount of Rs.5 lakhs belong to me and my wife. I do not remember how much amount out of Rs.5 lakhs belong to my wife. My wife is also house hold. She is also an income tax assessee. The income tax assessee should maintain the accounts for the income. I do not know what types of accounts maintained by me but my auditor knows it. My income is assessable income every years.” He further deposed as under: I do not know if the auditor filed my income tax returns or prepared my accounts. Unless I consult my auditor I cannot say whether he maintained any accounts. I cannot say whether any accounts were available with him. My account year is from 1st April to 31st March. I do not remember whether he filed my income tax returns for the years, 1990-91, 1991-1992 and 1992-1993. I do not remember whether any of my accounts or income tax returns for the years 1991 to 1993 would reflect that I was having cash of Rs.5 lakhs at any time. I do not remember whether I have paid any income tax from 1989-1990 to 1992-93. The department will issue the assessment order if the income tax returns are submitted. I do not remember whether I have paid the advance tax to Income Tax Department for the years from 1989-1990 to 1992-93. … I cannot say the details of the income tax details of the income tax paid for the said period i.e., from 1989-1990 to 1992 to 1993. I do not remember whether I have paid the advance tax to Income Tax Department for the years from 1989-1990 to 1992-93. … I cannot say the details of the income tax details of the income tax paid for the said period i.e., from 1989-1990 to 1992 to 1993. I cannot say the dates of payment of income tax. There is no documentary evidence available with me”. 24. The plaintiff marked Ex.A8 savings bank book of his account in Catholic Syrian Bank, Bhimavaram branch. A perusal of Ex.A8 shows that account was opened on 14.08.1993 and the plaint was presented on 16.08.1993. Basing on that plaintiff has been contending that he got the cash balance. An amount of Rs.6,50,000/- was deposited on 14.08.1993 and next day the entire cash was withdrawn, and the balance is only Rs.500/-. The attempt made by the plaintiff to convince the Court that he is having money to perform his part of the contract is denied by Ex.A8 itself. A perusal of other entries in Ex.A8 for all other days up to last entry, dated 21.11.1995 shows the amount maintained in his account and that the cash balance as on 3rd June was Rs.50,237/- and all other days the amount varies from Rs.276/- to 11, 857/-. Hence, it is proved that the plaintiff was not keeping balance amount running into lakhs in his bank account. 25. In fact defendant examined the Bank Manager of Cathelic Syrian Bank as DW2. Ex.X1 is true copy of account in the name of the plaintiff and his wife for the loan taken in 1993. According to Ex.X1 plaintiff and his wife borrowed Rs.8,00,000/- towards agricultural land and it was repayable in one year, which was paid after one year. Ex.X2 shows another loan in the year, 1995 to a tune of Rs.3,00,00/-. Though it was payable within one year, it was paid after one year. Ex.X3 also shows that the plaintiff availed Rs.6,00,000/- of loan in 1995 and repaid after one year. In the cross-examination, it was elicited that as against immovable property security of Rs.19,00,000/- and odd, they have given agricultural loan of Rs.8,00,000/- to the plaintiff and his wife under Ex.X1. In spite of the defendant’s contention that the plaintiff did not possess sufficient income to perform his part of the contract, the plaintiff did not file any document to prove his financial status. 26. In spite of the defendant’s contention that the plaintiff did not possess sufficient income to perform his part of the contract, the plaintiff did not file any document to prove his financial status. 26. The plaintiff, though, deposed about his purchasing of requisite stamps for the purpose of registration, nothing was produced before the Court and in fact he deposed about purchase for the first time in his cross-examination. Even in his reply notice under Ex.A5, he did not state about purchasing of stamps. All these circumstances show that the plaintiff was neither ready to perform his part of the contract nor has any sufficient cash to pay the balance sale consideration. Mere making an averment in Ex.A5 that the plaintiff is ready will not inure to the benefit of the plaintiff unless, he shows to the Court that he is having that amount and he is ready to perform his part of the contract. 27. The plaintiff put forth a plea that it is the son of the defendant, who insisted for exclusion of Ac.0-10 cents from the suit schedule property and plaintiff did not accept the said proposal. In view of the same, the delay was occurred. The evidence of PW1 on that aspect is to be considered. PW1 stated as follows: “I cannot say the date or month when he told me (refer to the son of DW1 about telling him for exclusion of 10 cents) I did not agree to leave Ac.0-10 cents to the defendant then Chandrasekhara Varma without saying anything left the place, I did not demand the defendant subsequently to execute the sale deed”. “Chandrasekhara Varma told me that they require Ac.0-10 cents and if I leave that extent, the defendant will execute the sale deed and secure the income tax clearance certificate. I cannot say the date or month when he told me but it is in the month of September”, ….. “Thereafter I entrusted the matter to my friends to pursue the defendant for execution of sale deed.” …. “I entrusted the matter to my friends to pursue the defendant for execution of sale deed. I entrusted the matter to my friend Subrahmanyam Varma. Subrahmanya Varma was visiting the house of defendant daily to pursue the matter.” 28. The evidence extracted is running contrary to his pleadings. “I entrusted the matter to my friends to pursue the defendant for execution of sale deed. I entrusted the matter to my friend Subrahmanyam Varma. Subrahmanya Varma was visiting the house of defendant daily to pursue the matter.” 28. The evidence extracted is running contrary to his pleadings. PW1 further stated that he sent PW2 to the defendant’s house with balance sale consideration. The plaintiff himself pleaded that the defendant was not available at her house and she went to Bhilai and he does not know where the defendant is all these days after the death of her husband since she was staying at Bhilai. It is highly improbable to believe that the plaintiff sent PW2 to defendant’s house with balance sale consideration. If really the plaintiff sent balance consideration with Subrahmanyam Raju, in September, 1990 and the defendant refused to receive the amount, nothing prevented the plaintiff from issuing notice immediately. The plaintiff kept quiet from 1990 to 1993 and he issued rely notice only after the defendant issued legal notice under Ex.A4. In fact, PW2 deposed that defendant went to Bhilai after the death of her husband and returned from Bhilai after one year. He further stated that he did not advise the plaintiff to give notice to the defendant about refusal of her son to receive balance sale consideration. Therefore, the evidence of PW2 does not inspire confidence of the Court. 29. Thus, in view of the discussion made supra, this Court is of the opinion that plaintiff failed to prove his readiness and willingness to perform his part of the contract and also his possessing sufficient amount to purchase the property. 30. The plaintiff further pleaded that since the defendant could not get income tax clearance, sale deed could not be executed. Whether non-obtaining income tax clearance certificate by defendant would inure to the benefit of plaintiff is to be considered? 31. In Mohammed Ibrahim and Ors. Vs. Mohammed Abdul Razzak( AIR 2007 AP 294 ) Division Bench of the High Court of Andhra Pradesh at Hyderabad held as follows: “20. The important contention that was taken is that the vendor did not obtain Income Tax Clearance Certificate without which no registration could be made, in view of specific bar under Section 230-A(1) of Income Tax Act. Vs. Mohammed Abdul Razzak( AIR 2007 AP 294 ) Division Bench of the High Court of Andhra Pradesh at Hyderabad held as follows: “20. The important contention that was taken is that the vendor did not obtain Income Tax Clearance Certificate without which no registration could be made, in view of specific bar under Section 230-A(1) of Income Tax Act. On the other hand, the learned Counsel for the vendor contended that there was no stipulation in Ex.B1 that Income Tax Clearance Certificate must be produced even before the vendee informs his willingness and ready with the balance of sale consideration. Had DW.1 was ready with money, he would have obtained such a Clearance Certificate. In fact that question did not arise when DW.1 could not show that he was ready with the amount. No doubt he must produce Clearance Certificate before the Registration Authority as required under Section 230-A(1) of Income Tax Act. Since DW-1 was never ready to perform his part of contract, he was not obliged to obtain all these certificates beforehand. 21. Before considering the said question, it may be mentioned herein that though there was no stipulation in Ex.B1 agreement, Section 230-A(1) of Income Tax Act stipulates that Income Tax Clearance Certificate is required to be produced by the time of registration. The said section reads as follows: Notwithstanding anything contained in any other law for the time being in force, where any document required to be registered under the provisions of Clause (a) to Clause (e) of Sub-section (1) of Section 17 of the Indian Registration Act, 1908 (16 of 1908), purports to transfer, assign, limit, or extinguish the right, title or interest of any person to or in any property (other than agricultural land) valued at more than (five lakh) rupees, no Registering Officer appointed under that Act shall register any such document, unless the (Assessing) Officer certifies that.... 22. In Chand Rani v. Kamal Rani : AIR 1993 SC 1742 , the Supreme Court while considering a plea as to the requirement of production of Income Tax Clearance Certificate held: No doubt, there were obligations on the part of the defendant to clear off the mortgage as well as to obtain the Income Tax Clearance Certificate. Those obligations will arise only after the payment of Rs. 98,000-00. Those obligations will arise only after the payment of Rs. 98,000-00. In the absence of such a payment the plaintiff had no right to insist upon these obligations being performed. 23. The learned Counsel for the respondent contended that in order to get over the payment of amount the plaintiff introduced this plea on legal advise. He relied on the passage in the decision Mohd. Abdul Razak v. B. Venkatesh @ Venkataiah : AIR 2006 AP 300 , to which one of us is a party. While dealing with a case where each party throwing blame against the other by claiming that the other party was not ready, observed: As could be seen from the pleadings as well as evidence on both sides, each party is throwing blame against other. Section 9 of the Specific Relief Act, 1963 (for short 'the Act') enables a defendant to raise, in a suit of specific performance, all those defences which he is eligible in a suit on contract. Section 10 enumerates the cases in which specific performance can be granted. Specific performance is a discretionary remedy. Section 16 lays down grounds on which the relief may be refused to the plaintiff on account of his conduct; and Section 20 direct the circumstances in which the discretion may or may not be exercised in granting the relief. It is settled proposition of law that where time is of the essence of the contract, and the plaintiff has failed to perform his part of the contract within the stipulated time, specific performance can be refused. Time, in contracts for sale of immovable property, is not of the essence of the contract, unless the nature of the property and surrounding circumstances make it so. Equity treats limits of time as supporting to the main purpose of the parties. So long as the plaintiff is willing to make payment on or before the date which was prescribed, or within a reasonable time, the ordinary presumption, that the time is not of essence of the contract of sale of immovable property, would not be displaced. Equity treats limits of time as supporting to the main purpose of the parties. So long as the plaintiff is willing to make payment on or before the date which was prescribed, or within a reasonable time, the ordinary presumption, that the time is not of essence of the contract of sale of immovable property, would not be displaced. It is said that where the time is not of the essence of the contract for sale of immovable property, some delay in payment of consideration money is no bar to specific performance; provided the delay has caused no prejudice to the defendant or abandonment by the plaintiff or such a change as would make the relief inequitable. If a plaintiff is negligent and dilatory in carrying out his part of the contract for sale of immovable property, the plaintiff cannot get his contract specifically performed. In identical situation, it was observed: OBVIOUSLY in order to get over the delay in payment of balance of sale consideration amount, the plaintiff introduced a plea that the defendant agreed to produce the Income Tax Clearance Certificate for execution of the sale deed. The said stipulation was not made a mention either in Ex.A1 or in Ex.A2.... The defendant pleaded categorically that the plaintiff was not having the remaining balance of sale consideration. It was his case that he cancelled the agreement and forfeited the advance amount. The plaintiff could not prove that he was having requisite amount. He did not file account though he was businessman. He did not file bank account to show that he has capacity to pay the balance amount. Naturally, if the specific performance is ordered, it would cause injustice to the defendant. The very same logic and reasoning applied in the above case would equally apply to the case on hand. The agreement holder was never ready and willing to complete his part of contract. He has no money even to pay rent. There were laches on his part. It did not come to the stage to furnish Income Tax Clearance Certificate. This plea is pressed in service to get over his only latches.” 32. The requirement of copy of income tax certificate would arise after execution of sale deed (draft sale deed), but not before the document was executed. The draft conveyance duly settled by the parties is to be shown to the income tax authority. 33. This plea is pressed in service to get over his only latches.” 32. The requirement of copy of income tax certificate would arise after execution of sale deed (draft sale deed), but not before the document was executed. The draft conveyance duly settled by the parties is to be shown to the income tax authority. 33. Forms 37 EE and 37I under Chapters XXA and XXC of the Income Tax are required to be filed upon transfer of immovable property being made. The word transfer shows that parties have actually executed a draft conveyance, mortgage, exchange, gift or lease constituting transfer under the Transfer of Property Act. It is only upon the ultimate contract between the parties to transfer the immovable property from one party to another the Income Tax Authority is required to be informed as per the forms set out in the Act. This would be to enable the Income Tax Authority to acquire the immovable property itself, if the consideration that passes there under is not accepted by the authority and a certificate to that effect granting its no objection to transfer the property is not given. Any transfer effected without informing the Income Tax Authority by filing the aforesaid forms, would be void. 34. In the reply notice under Ex.A5, plaintiff asserted that since the value of the schedule property is more than Rs.2,00,000/-, the defendant had to obtain income tax clearance certificate from the department and she should show it to the plaintiff at the earliest enabling him to purchase non-judicial stamps in that regard. In the reply notice, it is not indicated with regard to the preparation of rough sale deed. Curiously, PW3, document writer deposed in his chief examination that prior to 15.08.1990, he drafted rough sale deed at the request of plaintiff and defendant’s husband and son to obtain income tax clearance certificate. If really had the scribe prepared rough sale deed, prior to 15.08.1990, the same would have been reflected in Ex.A5, notice issued on behalf of the plaintiff. 35. If really had the scribe prepared rough sale deed, prior to 15.08.1990, the same would have been reflected in Ex.A5, notice issued on behalf of the plaintiff. 35. Thus, these instances make things more than discernable that the plaintiff did not make the balance consideration ready to perform his part of the contract and when notice was issued by the defendant to get ready with the amount, he concocted story that defendant’s son requested him to exclude Ac.0-10 cents from the suit schedule property and also the plea of defendant not getting income tax clearance certificate from the department. 36. By issuance of notice and rejoinder under Exs.A4 and A6 respectively, the defendant made time as essence of the contract, however, in the cross-examination DW1 categorically stated that time is not made as essence of contract either under Exs.A1, A4 or A6. Going by the conduct of the defendant in extending time for making payment from time to time and further enabling the plaintiff to perform his part of the contract, it indicates that the defendant did not make time as essence of the contract. In view of the conduct of the defendant, this Court holds that time is not essence of the contract in respect of Ex.A1. 37. The agreement is dated 21.04.1990 and the suit was filed on 16.08.1993 i.e. three years after execution of agreement of sale and thereafter the judgment was rendered by the civil Court in the year, 2004 i.e. fourteen years after execution of agreement of sale. The equitable relief of specific performance if granted definitely it creates hardship to the defendant in view of the escalation of prices and the developments made in the surrounding areas of the suit schedule property. According to PW1, the suit schedule property is located in the outskirts of Bhimavaram town and SRK Engineering college was established in China Amiram village near the suit schedule property. A junior college is also located near the suit schedule property and other structures were also raised. PW2 also corroborated in his cross-examination about the developments of surrounding areas since 1990. It was elicited from the cross of DW1 that in the year, 2002, one Kanumuri Laxmikanthamma sold her site to one Paboyina Suseela at the rate of Rs.2,80,000/- per cent and the said site is situated at a distance of 50 yards from the suit schedule property. It was elicited from the cross of DW1 that in the year, 2002, one Kanumuri Laxmikanthamma sold her site to one Paboyina Suseela at the rate of Rs.2,80,000/- per cent and the said site is situated at a distance of 50 yards from the suit schedule property. It was also elicited that the value of the property as on that date was Rs.3,00,000/- to 3,50,000/- per cent, which shows that there is phenomenal increase in the market value of the property under Ex.A1, in which price of each cent was fixed at Rs.10,500/- and in the year, 2022, it would be around Rs.3,00,000/- to Rs.3,50,000/- per cent. In the circumstances granting the relief of specific performance creates hardship to the defendant. 38. In the context of the discretion under Section 20 of the Specific Relief Act, the Hon’ble Apex court also considered whether it is appropriate to direct specific performance of a contract relating to the transfer of immovable property, especially given the efflux of time and the escalation of prices of property. 39. Of course escalation of prices of property is no ground to deny the relief of specific performance. But, the discretion to direct specific performance of an agreement and that too after elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and acceptable principles. In the instant case, as observe supra, the evidence on record clearly depicts that the plaintiff is never ready to perform his part of the contract notwithstanding the readiness shown by defendant to execute sale deed. 40. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen. Merely because, defendant admits execution of agreement, plaintiff is not entitled to the relief of specific performance unless he establishes readiness and willingness, financial capacity etc., In view of the same, the judgment rendered in P. Ramasubbamma vs. V. Vijayalakshmi and Ors. relied upon by the learned counsel for appellant may not apply to the facts of the case. 41. Merely because, defendant admits execution of agreement, plaintiff is not entitled to the relief of specific performance unless he establishes readiness and willingness, financial capacity etc., In view of the same, the judgment rendered in P. Ramasubbamma vs. V. Vijayalakshmi and Ors. relied upon by the learned counsel for appellant may not apply to the facts of the case. 41. Thus, this Court holds that plaintiff cannot take advantage over defendant and decreeing the suit by granting relief of specific performance would cause great hardship to the defendant. 42. Though it was argued about non-examination of the defendant, defendant is an old lady aged about 82 years and is not keeping good health. Medical certificate issued by Dr. P. Vijay Babu, Government Hospital, Bhimavaram was marked as Ex.B2. In view of the same, examination of the defendant is not fatal to her case. 43. In view of the findings arrived at supra, in the considered opinion of this Court the plaintiff is not entitled to decree of specific performance. Plaintiff is entitled to relief of refund amount and the decree passed by the Trial Court in that regard is confirmed. Plaintiff/appellant failed to make out any case in the appeal to interfere with the judgment of Trial Court. Thus, the appeal deserves to be dismissed. Point No.6 44. In the result, the appeal is dismissed. No costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.