Patabandula Prabhavathi v. Katragadda Chandra Sekhar Sekhar Babu
2023-12-26
T.MALLIKARJUNA RAO
body2023
DigiLaw.ai
JUDGMENT 1. The Appeal, under Sec. 96 of the Code of Civil Procedure, 1908, is filed by the Appellants/Defendants challenging the decree and Judgment dtd. 28/3/2011 in O.S.No.43 of 2007 passed by the Judge, Family Courtcum-Additional District Judge, Ongole (for short, 'trial court'). 2. The parties will hereinafter be referred to as arrayed before the trial court. 3. The Plaintiff claims that the defendants are the owners of the plaint schedule property. The Plaintiff purchased the same on 1/11/2006 at the rate of Rs.1, 65, 000.00 per acre. The Plaintiff paid Rs.2, 00, 000.00 to the Defendants, for which the Defendants executed an agreement of sale in favour of the Plaintiff, and the Defendants agreed to execute the sale deed within two months. In the meantime, they will get the land measured; as per the measurements, the prorated amount will be received, and they will execute the registered sale deed; it was also mentioned that if payment of the balance is delayed beyond two months, the advance will be forfeited and the contract will be cancelled. The Plaintiff is ready and willing to perform his part of the contract, and even now, the Plaintiff is ready to deposit the balance of the sale consideration. Still, the Defendants are not ready to perform their part of the contract. After that, there was an exchange of notices between both parties. 4. The 2nd Defendant filed a written statement, denying the allegations made in the plaint, contending that the Plaintiff failed to approach them to get the land measured, and pay the balance of sale consideration, and obtain the sale deed in his favour. The Plaintiff issued a legal notice dtd. 9/4/2007, though the agreement was broken by lapse of time. Also, time is the essence of the contract as explicitly stipulated in the sale agreement, and thereby, all rights accrued to the Plaintiff with the contract were lost. A reply dtd. 13/4/2007 was issued by the Defendants stating that if payment of the balance is delayed beyond two months, the advance amount will be forfeited, and the contract will be cancelled. The 2nd Defendant further contended that the Plaintiff never offered any pie or asked him to perform the contract. The Plaintiff delayed measuring the land and obtaining a sale deed after payment of the balance sale consideration.
The 2nd Defendant further contended that the Plaintiff never offered any pie or asked him to perform the contract. The Plaintiff delayed measuring the land and obtaining a sale deed after payment of the balance sale consideration. He further contended that time is the essence of the contract to sell immovable property; where advance was paid for the agreement to sell immovable property and the vendee had agreed to pay balance consideration by the stipulated date and on failure, advance was to be forfeited and the agreement cancelled; the Defendants did not commit any breach or delay in performing the contract. 5. The 1st Defendant filed a Memo adopting the written statement of the 2nd Defendant. 6. Based on the above pleadings, the trial court framed the following issues: 1) Whether the terms and conditions and extent of the suit sale agreement dtd. 1/11/2006 said to have been executed by the defendant in favour of the Plaintiff are true, valid, duly executed and enforceable against the defendant? 2) If so, whether the time is the essence of the contract for sale and if sothe defendant is entitled to revoke the contract for sale and forfeit the amounts? 3) Whether the Plaintiff is entitled to the specific performance of the contract for sale or any other alternative relief. If so, what relief? 4) To what relief? 7. During the trial, on behalf of the Plaintiff, P.Ws.1 to 5 were examined and marked Exs.A1 to A5. On behalf of the Defendants, D.W.1 was examined, and no documents were marked. 8. After completion of the trial and hearing the arguments of either side, the suit was decreed without costs, granting relief of specific performance of the contract under the suit agreement of sale directing the Defendants 1 and 2 to receive balance of sale consideration from the Plaintiff and execute the regular register sale deed in favour of the Plaintiff in respect of suit land in three months. Aggrieved by the Judgment and decree, the Defendants filed the present Appeal. 9. Sri Inakollu Venkateswarlu, learned counsel for the Appellants, has urged, in assailing the Judgment of the learned trial Judge, firstly that there is no substantial evidence to support the Plaintiff's claim that they were ready with the balance of consideration.
Aggrieved by the Judgment and decree, the Defendants filed the present Appeal. 9. Sri Inakollu Venkateswarlu, learned counsel for the Appellants, has urged, in assailing the Judgment of the learned trial Judge, firstly that there is no substantial evidence to support the Plaintiff's claim that they were ready with the balance of consideration. Secondly, he asserts that time was explicitly designated as the essence of the contract, and the Plaintiff's failure to adhere to this timeframe renders the contract unenforceable. Furthermore, the counsel argues that the trial court overlooked crucial aspects, including the forfeiture clause, the Plaintiff's failure to pay the bal- ance within the stipulated time, and the absence of steps to secure the sale deed. He contends that if the Plaintiff genuinely intended to complete the transaction promptly, they should have given notice to convene at the SubRegistrar's office within the specified timeframe. The counsel questions why such steps were not taken and suggests that the Plaintiff's failure to act within the agreed-upon time implies a breach of the agreement. 10. Per contra, Sri Deviprasad Mangalapuri, learned counsel appearing for the Respondent/Plaintiff, would contend that the trial Court correctly appreciated the facts of the case and came to a correct conclusion. The reasons given by the trial Court do not warrant any modification. 11. Heard Sri Inakollu Venkateswarlu and learned counsel for the Appellants, and Sri Deviprasad Mangalapuri learned counsel for the Respondent. 12. Concerning the pleadings in the suit, the findings recorded by the Trial Court and in light of the rival contentions and submissions made on either side before this Court, the following points would arise for determination: 1) Is the trial court justified in holding that the Plaintiff is always ready and willing to perform his part of the contract? 2) Is time the essence of the contract? 3) Does the Judgment of the trial Court need any interference? POINTS No.1 TO 3: 13. Learned counsel for the Appellants/Defendants contends that the burden is on the Plaintiff to establish his case, and he cannot depend on the Defendants' weakness. In support of his contention, he placed reliance on the decision in Vijender Kumar Kedia vs Salesh, 2016 SCC OnLine Hyd 19. wherein the composite High Court of Andhra Pradesh held that: 10.
Learned counsel for the Appellants/Defendants contends that the burden is on the Plaintiff to establish his case, and he cannot depend on the Defendants' weakness. In support of his contention, he placed reliance on the decision in Vijender Kumar Kedia vs Salesh, 2016 SCC OnLine Hyd 19. wherein the composite High Court of Andhra Pradesh held that: 10. Thus, it is the settled law from the above expressions placed reliance by one or other of both sides that in the suit for specific performance, the Plaintiff has to win or lose his case on his strength and not on the weak case of the defendant and in seeking the equitable relief, he has to come with clean hands to do equity, thereby court has to look into the case of the Plaintiff first and if able to show from his very case entitlement, then to consider the defence, if at all still disentitled, even to exercise the discretion only there from no doubt conduct of the defendant and any false plea of the defendant can also be weighed against in arriving to grant the relief where even from Plaintiffs making out the case. It is further held that the limitation prescribed of three years or the suit claim made within that time itself does not entitle to equitable relief. It is because, mean time there is possibility of value of lands go up made change may several other factors inference. Besides that, the price increase and the hardship of the defendants are also weighing factors even though the Plaintiff is otherwise entitled to the relief to refuse the judicial discretionary relief. 14. To establish his case, the Plaintiff, is examined as PW.1. The 1st Defendant's son (P.Srinivasa Rao) is examined as DW.1. The Defendants are the owners of the schedule property. PW.1 and DW.1 reaffirmed the stand presented in their respective pleadings. PW.5 (K. Adiseshaiah) is one of the attestors of the Ex.A.1 agreement. PW.2 (P. Gopala Krishna Murthy) is the scribe of the Ex.A.1 agreement.
The 1st Defendant's son (P.Srinivasa Rao) is examined as DW.1. The Defendants are the owners of the schedule property. PW.1 and DW.1 reaffirmed the stand presented in their respective pleadings. PW.5 (K. Adiseshaiah) is one of the attestors of the Ex.A.1 agreement. PW.2 (P. Gopala Krishna Murthy) is the scribe of the Ex.A.1 agreement. The evidence of PWs.1, 2, 5 and DW.1 show that on 1/11/2006, the Defendants agreed to sell the schedule property @ Rs.1, 65, 000.00 per acre; on the same day, the Plaintiff paid an advance of Rs.2, 00, 000.00 to the Defendants; the Defendants executed Ex.A.1 agreement of sale in favour of the Plaintiff and they agreed to execute the sale deed within two months and in the meantime, they will get the land measured. The balance amount is payable to the Defendants by PW.1 based on the extent arrived of the suit land through measurements. 15. The Plaintiff contends that the Defendants failed to measure the suit lands as per the conditions mentioned in the Ex.A.1 agreement, but PW.1 measured the land through PW.2 within 55 days of the Ex.A.1 agreement; PW.2 measured the land with the assistance of PW.3 and another person named Kalyana Krupa Rao at the cost of PW.1. According to the evidence of PWs.1 and 2, after measurement, the extent of the scheduled property was determined to be AC.7.19 cents, which differs from the extent mentioned in the agreement (Ac.7.00 cents). In the plaint schedule, the extent is shown as Ac.7.00 cents. The Plaintiff's case is supported by the evidence of P.Ws.2 and 5 regarding the measurements of the suit schedule property. This evidence suggests that the Plaintiff took proactive steps to measure the land, and the measured extent differs from what is stated in the agreement. The Plaintiff's claim is supported by the evidence presented in court. 16. The defendants, in their written statement, denied the Plaintiff's claim that the schedule property was measured after the execution of the Ex.A.1 agreement.
This evidence suggests that the Plaintiff took proactive steps to measure the land, and the measured extent differs from what is stated in the agreement. The Plaintiff's claim is supported by the evidence presented in court. 16. The defendants, in their written statement, denied the Plaintiff's claim that the schedule property was measured after the execution of the Ex.A.1 agreement. However, during cross-examination, DW.1 (P. Srinivasa Rao) admitted that PW.2 measured the land within 55 days after executing the Ex.A.1 agreement; two persons assisted PW.2 in taking measurements; after taking measurements, the extent of the land was found to be more than the extent mentioned in the Ex.A.1 agreement; no one was present on behalf of DW.1 at the time of taking measurements except for him; DW.1 informed his mother (1st Defendant) about the process of taking measurements; PW.1 (Plaintiff) paid remuneration to the persons who assisted in taking measurements; PW.1 arranged for PW.2 and others to take measurements for the schedule property, and DW.1 was also called to take measurements; Plaintiff instructed the scribe, PW.2, to draft the Ex.A.1 agreement, and DW.1 confirmed that the contents of Ex.A.1 are true and correct. This admission by DW.1 supports the Plaintiff's case that measurements were indeed taken, and the extent of the land was found to be more than what was initially mentioned in the agreement. 17. The analysis of DW.1's evidence reveals that the Defendants did not plead in their written statement the facts related to the measurements of the schedule property. Despite the condition in the Ex.A.1 agreement requiring them to do so, the Defendants did not take steps to get the measurements of the schedule property. Consequently, the Defendants failed to establish that they had initiated the necessary steps per the terms of the Ex.A.1 agreement. 18. The Plaintiff, as testified by PW.1, claimed that he demanded the Defendants to fulfill their part of the contract, but the Defendants did not come forward to do so. The exchange of Ex.A.2 (legal notice issued on behalf of the Plaintiff) and Ex.A.3 (reply notice given on behalf of the Defendants) is admitted. Ex.A.2, an office copy of the notice dtd. 9/4/2007, reveals that the Plaintiff demanded the Defendants to measure the schedule property on 22/4/2007 and requested them to receive the amount on or before 23/4/2007.
The exchange of Ex.A.2 (legal notice issued on behalf of the Plaintiff) and Ex.A.3 (reply notice given on behalf of the Defendants) is admitted. Ex.A.2, an office copy of the notice dtd. 9/4/2007, reveals that the Plaintiff demanded the Defendants to measure the schedule property on 22/4/2007 and requested them to receive the amount on or before 23/4/2007. Notably, the Plaintiff did not mention in the notice the taking of measurements with the assistance of P.W.s 2, 3, and 5 in the Defendants' presence. Both parties entered into the Ex.A.1 sale agreement on 1/11/2006. In cross-examination, DW.1 admitted that the Plaintiff took steps to measure the schedule land within 55 days from the Ex.A.1 agreement date. The reply notice from the Defendants stated that, as per the conditions laid down in the Ex.A.1 agreement, it had to be registered within two months from the agreement date. However, the evidence on record indicates that the Defendants had not taken steps to measure the schedule land while the Plaintiff had done so. 19. The contents of the Ex.A.2 letter do not provide a reason why Plaintiff did not mention the measurements taken in the presence of PWs 1, 2, and 5. While the Defendants did not explain their plea, the cross-examination of PW.2 sheds some light. In the cross-examination, PW.2 stated the following: "I have taken only measurements on four sides and not taken the 'G' line and the Field Measurement Book for ascertaining the extent. Measurements have to take place only by forming a 'G' line to reach the actual extent of the land. (Witness adds that due to Eucalyptus plants, I have not taken the 'G' line). The 'G' line can indeed be taken, offset lines can also be taken by removing the crop in two feet or three feet in a straight line with 900, and measurements can be taken. The Plaintiff does not claim to take the 'G' and off-set lines to know the extent. I asked the Plaintiff to bring the F.M.B., Adangal and R.O.R. extract, but he did not bring the same at the time of taking measurements. I have taken the measurements only measuring the boundary ridges. I cannot say what the actual measurements on the four sides are. PW.1 brings the two workers who assisted me in pulling the chain, Kadiyala Kruparao and Gopanaboyina Dibbayya. I have not given any paper to the Plaintiff.
I have taken the measurements only measuring the boundary ridges. I cannot say what the actual measurements on the four sides are. PW.1 brings the two workers who assisted me in pulling the chain, Kadiyala Kruparao and Gopanaboyina Dibbayya. I have not given any paper to the Plaintiff. I gave the measurement slip to the 2nd Defendant. It is not true to say that I am giving evidence at the request of the Plaintiff and as suggested by him." 20. In this regard, PW.3 stated in the cross-examination as follows: "It is true only after paying the required challan amount by the party and as per the directions of the Tahsildar of the Mandal, we have to go to take the measurements. There is no notice for me from the Mandal Office. We assist in taking the measurements. As PW.1 paid some amount to me, I accompanied him to Konijedu to take the measurements. No 'G' line was taken or no cross-top was used for taking the measurements. Only the measurements were taken around the field. (Witness adds: There is an existing crop on the land, and therefore, 'G' lines were not taken). PW.2 prepared two copies of the measurements taken by him. One copy was given to PW.1, and one copy was given to the 2nd Defendant. I heard the extent is Ac.7.19 cents when PW.2 is saying the same to PW.1." 21. The cross-examination of P.Ws.2 and 3 suggests they did not follow the proper procedure in taking measurements, specifically without forming the 'G' line and referencing the revenue record. However, the Defendants have not claimed that the Plaintiff did not cooperate with the measurement process. The terms of the agreement clearly state that both parties are responsible for taking measurements within two months. Despite the Plaintiff's efforts to fulfill their part of the contract and request the defendants to take steps for measurement, the Defendants issued Ex.A.3 reply notice, suggesting that the Plaintiff failed to fulfill his part. The Defendants have not explained why they did not take steps to measure the schedule land. 22. While it is true that Plaintiff did not mention the measurement of the schedule property in the Ex.A.2 notice, Plaintiff did include this information in the plaint, stating that the extent of the schedule property is Ac.07.19 cents.
The Defendants have not explained why they did not take steps to measure the schedule land. 22. While it is true that Plaintiff did not mention the measurement of the schedule property in the Ex.A.2 notice, Plaintiff did include this information in the plaint, stating that the extent of the schedule property is Ac.07.19 cents. The terms of the agreement indicate that both parties are responsible for taking measurements of the schedule property within two months. Consequently, the Defendants cannot now fault the Plaintiff for not adhering to this term. 23. Learned counsel for the Defendants contends that Plaintiff failed to establish that he is ready and willing to perform the part of the contract. The trial Court has not framed the issue regarding readiness and willingness. Without framing such an issue, the trial court is not justified in passing the decree in favour of the Plaintiff. Learned Counsel for the Defendants relied on the decision in V.S. Ramakrishnan vs. P.M. Muhammed Ali, 2022 SCC OnLine SC 1545. wherein the Hon'ble Apex Court held that: "8. Now, the findings and the reasoning given by the learned Trial Court refusing to pass a decree for specific performance are concerned, it appears that though the learned Trial Court framed no specific issue on readiness and willingness on the part of the Plaintiff, the Trial Court has given the findings on the same and has non-suited the Plaintiff by observing that the Plaintiff did not have sufficient funds to make the full balance consideration on or before 12/1/2006. Such a finding could not have been given by the learned Trial Court without putting the Plaintiff to notice and without framing a specific issue on the readiness and willingness on the part of the Plaintiff. There must be a specific issue framed on readiness and willingness on the part of the Plaintiff in a suit for specific performance, and before giving any specific finding, the parties must be put to notice. 24. Learned counsel for the Plaintiff submits that though no issue has been framed concerning readiness and willingness, both parties have adduced evidence on the said contention. It is not the Plaintiff's grievance that he had no opportunity to adduce evidence on the contention raised on the aspect of readiness and willingness; both parties have adduced sufficient evidence.
24. Learned counsel for the Plaintiff submits that though no issue has been framed concerning readiness and willingness, both parties have adduced evidence on the said contention. It is not the Plaintiff's grievance that he had no opportunity to adduce evidence on the contention raised on the aspect of readiness and willingness; both parties have adduced sufficient evidence. It is also not the Defendants' grievance that they have not led in evidence because of the non-framing of the said issue. In the said facts of the case, now it is not open to the Defendants to contend that the matter has to be remanded to adduce evidence on the aspect of readiness and willingness. 25. At this juncture, it is pertinent to refer to the decision in Vijender Kumar Kedia V. Salesh, 2016 SCC OnLine Hyd 19. the composite High Court of Andhra Pradesh held that: 9(a). It is the well-settled proposition of law in general appreciation of all cases (though not in a suit for specific performance) from S.B. Noronal v. Prem Kundi that pleadings are not statutes and legalism is not verbatim. Common sense should not be kept in cold storage when pleadings are construed. In Ram Sarup Gupta v. BishurNarain Inter College, referring to the constitutional Bench expression in Bhagwati Prasad v. Chandramaul and Sheodhari Rai v. Suraj Prasad Singh Trojan and Company V. R M N NNagappaChettiar, it was held that the pleadings should receive a liberal and not pedantic approach as meant to ascertain the substance and not form. In Bachhaj Nahar V. Nilima Mandal at para No. 12, it was held in a suit for an injunction based on the elementary right that the object and purpose of pleadings and issues are to ensure that litigants come to trial on clearly defined issues to prevent cases being expanded on grounds being shifted during the trial. Though generally no plea, no evidence can be looked into, and for no issue, no finding can be given; it is not always the static principle from the fact that even a plea not made specifically from a deficiency in pleadings, but if covered by implication and evidence let in. Parties know the case, it can be looked into and even to give finding no issue framed is of no bar to formulate a point and decide. 26.
Parties know the case, it can be looked into and even to give finding no issue framed is of no bar to formulate a point and decide. 26. Learned counsel for the Defendants contends that the Plaintiff failed to deposit the amount in the Court. In C.S. Venkatesh vs. A.S.C. Murthy, (2020) 3 SCC 280 . wherein the Hon'ble Apex Court held that: "16. The words "ready and willing" imply that the Plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the Plaintiff is a condition precedent to grant the relief of performance. If the Plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the Plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the Plaintiff before and after the filing of the suit along with other attending circumstances. The amount he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of the decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the Plaintiff was ready and was always ready to perform his contract. xxx 21.xxx Mere plea that he is ready to pay the consideration, without any material to substantiate this plea, cannot be accepted. It is not necessary for the Plaintiff to produce ready money, but it is mandatory on his part to prove that he has the means to generate the consideration amount. Except for the statement of PW 1, there is absolutely no evidence to show that the Plaintiff has the means to make arrangements for payment of consideration under the reconveyance agreement." 27. In U.N. Krishnamurthy vs. A.M. Krishnamurthy, 2022 SCC OnLine SC 840. wherein the Hon'ble Apex Court held that: 25. To aver and prove readiness and willingness to perform an obligation to pay money in terms of a contract, the Plaintiff would have to make specific statements in the plaint and adduce evidence to show the availability of funds to make payment in terms of the contract in time.
wherein the Hon'ble Apex Court held that: 25. To aver and prove readiness and willingness to perform an obligation to pay money in terms of a contract, the Plaintiff would have to make specific statements in the plaint and adduce evidence to show the availability of funds to make payment in terms of the contract in time. In other words, the Plaintiff would have to plead that the Plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the Plaintiff does not have sufficient funds to discharge his obligations in terms of a contract, which requires payment of money, the Plaintiff would have to specifically plead how the funds would be available to him. 28. Learned counsel for the Appellants further relied on the decision in N.P.Thirugnanam (Dead) By LRs. V. Dr R. Jagan Mohan Rao and Others, (1995) 5 SCC 115 . wherein the Hon'ble Supreme Court held that: 5. ................. To adjudge whether the Plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the Plaintiff prior to and subsequent to the filing of the suit, along with other attending circumstances. The amount of consideration he has to pay to the defendant must be proved to be available. Right from the date of the execution till the date of the decree, he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his 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. 29. Learned counsel for the Defendants contends that Plaintiff failed to establish that his financial capacity and the sale deed relied on by him does not show his capacity to pay the balance sale consideration. First of all, it is to be mentioned that the Defendants have not at all disputed the execution of Ex.A.1 agreement of sale.
29. Learned counsel for the Defendants contends that Plaintiff failed to establish that his financial capacity and the sale deed relied on by him does not show his capacity to pay the balance sale consideration. First of all, it is to be mentioned that the Defendants have not at all disputed the execution of Ex.A.1 agreement of sale. It is not their case that without verification of the Plaintiff's financial capacity, they entered into Ex.A.1 agreement and they have not made proper enquiries regarding the Plaintiff's financial capacity. Having entered into the Ex.A.1 agreement with Plaintiff, it is not open to the Defendants to question Plaintiff's financial capacity. 30. It appears that the legal notice issued by the Plaintiff demanded the Defendants to take steps to measure the land on a specific date after receiving the consideration and execute the sale deed on the next day of the measurements. In response, the Defendants issued Ex.A.3 reply notice, stating that the parties intended to make time the essence of the contract. Ex.A.3 reply notice also mentioned that the contract had lapsed due to the stipulated condition and suggested that the Plaintiff's remedy is to proceed under Sec. 64 and 66 of the Indian Contract Act. The Defendants asserted that the Plaintiff had no right to demand measurements or registration of the land. 31. The facts placed before the Court establish that the Plaintiff has taken steps to measure the schedule land within the stipulated time, and he also demanded the Defendants to come forward to get measurements of the land. As previously, the measurements were not taken regarding the revenue records, and without forming a 'G' line, Plaintiff made such a demand through Ex.A.2 legal notice within five months. But the Defendants replied to the said notice as referred to above. 32. When it is the specific case of both parties that the suit land has to be measured within sixty days from the date of Ex.A.1 agreement, the Defendants are not supposed to ignore the said condition and complain that the Plaintiff has not performed his part of the contract. 33. Learned counsel for the Appellants relied on the decision in I.S.Sikandar (dead) by KLrs., V. K.Subramani and others, (2013) 15 SCC 27 . wherein the Hon'ble Supreme Court placed reliance on the decision in Smt.Chand Rani (dead) by L.R.S. Vs. Smt. Kamal Rani (deceased), (1993) 1 SCC 519 .
33. Learned counsel for the Appellants relied on the decision in I.S.Sikandar (dead) by KLrs., V. K.Subramani and others, (2013) 15 SCC 27 . wherein the Hon'ble Supreme Court placed reliance on the decision in Smt.Chand Rani (dead) by L.R.S. Vs. Smt. Kamal Rani (deceased), (1993) 1 SCC 519 . wherein it held that it is a well-settled principle of law that in the case of the sale of immovable property, time is not the essence of the contract. However, if the parties agree to a specified time in the agreement to perform their part of the contract, then time is the essence of the contract, and the parties shall adhere to the same 34. Learned counsel for the Appellants relied on the decision in Desh Raj and others vs. Rohtash Singh, 2022 SCC OnLine SC 1719. wherein the Hon'ble Apex Court held that: xxxxxxxxxxxxxxx "36. The principle that time is not of the essence of contracts relating to immovable properties took shape when market values of immovable properties were stable and did not undergo any marked change even over a few years (followed mechanically, even when value ceased to be stable). Consequently, the time for performance stipulated in the agreement was assumed to be not material or, at all events, considered merely indicating the reasonable period within which the contract should be performed. The assumption was that a grant of specific performance would not prejudice the vendor defendant financially as there would not be much difference in the market value of the property even if the contract were performed after a few months. This principle made sense during the first half of the twentieth century when there was comparatively very little inflation in India. The third quarter of the twentieth century saw a very slow but steady increase in prices. But a drastic change occurred from the beginning of the last quarter of the twentieth century. There has been a galloping inflation, and prices of immovable properties have increased steeply by leaps and bounds. Market values of properties are no longer stable or steady. We can take judicial notice of the comparative purchase power of a rupee in the year 1975 and now, as also the steep increase in the value of the immovable properties between then and now.
Market values of properties are no longer stable or steady. We can take judicial notice of the comparative purchase power of a rupee in the year 1975 and now, as also the steep increase in the value of the immovable properties between then and now. It is no exaggeration to say that properties in cities worth a lakh or so in or about 1975 to 1980 may cost a crore or more now." 35. It appears that there was dissatisfaction to both parties with the measurements taken, leading to a request from Plaintiff for the Defendants to join in further measurements. However, the Defendants declined, citing the expiration of the stipulated time. 36. At the cost of repetition, whether time is an essence of the contract depends on the facts and circumstances of each case. In this case, after taking into consideration the terms of the contract, the conduct of the parties and other material placed before the Court, this Court views that the time is stipulated to perform the contract, and the responsibility lies on both parties to take steps to measure the schedule property. But Defendants did not come forward to take property measurements. 37. In Netyam Venkataramanna and others, V. Mahankali Narasimham (died) and others, 1993 (2) APLJ 381 (HC). the composite High Court of Andhra Pradesh, by relying on several decisions of the High Court and Supreme Court, held as follows: ..... K. Sambasiva Rao v. P. Bangaru Raju (A.I.R. 1985 A.P. 393) is a direct authority for the proposition that a suit filed on the last date of limitation does not entitle the Court to refuse to exercise its discretion for giving the relief of specific performance......... A suit within the limitation period cannot be considered an instance of delay in filing the suit for a specific performance and thus disentitle the Plaintiff from getting the relief of a specific performance. ..... "While in England mere delay or laches may be a ground for refusing to give a relief of specific performance, in India mere delay without such conduct on the part of the Plaintiff as would cause prejudice to the defendant does not empower a court to refuse such a relief. .........
..... "While in England mere delay or laches may be a ground for refusing to give a relief of specific performance, in India mere delay without such conduct on the part of the Plaintiff as would cause prejudice to the defendant does not empower a court to refuse such a relief. ......... "But as stated earlier, the English principles based upon mere delay can have no application in India where the statute prescribes the time for enforcing the claim for specific performance." The Court ultimately held that a mere delay extending up to the limitation period is insufficient grounds to refuse the relief. 38. Learned counsel for the Appellants/Defendants contends that the Plaintiff has to prove that he has the money or has alternatively made necessary arrangements to get the money. The continuous readiness and willingness of the Plaintiff is a precedent for granting the relief of specific performance; this circumstance is material and relevant and must be considered by the Court while granting an order refusing to grant the relief. The learned counsel for the appellants submits that the Plaintiff failed to deposit the balance of sale consideration within the time stipulated. It establishes that he is not ready and willing to perform his part of the contract. 39. In P. Daivasigamani Vs. S.Sambandan, 2022 S.C.C. OnLine SC 1391. the Hon'ble Apex Court referred to the case of Syed Dastagir v. T.R. Gopalakrishna Setty, (1999) 6 SCC 337 . a three-judge Bench of the Apex Court observed that: 12. The ratio in Mademsetty Satyanarayana v. G. Yelloji Rao, A.I.R. 1965 SC 1405. it has been observed as follows: "7. Mr. Lakshmaiah cited a long catena of English decisions to define the scope of a court's discretion. Before referring to them, it is necessary to know the fundamental difference between the two systems- English and Indian-qua the relief of specific performance. In England the relief of specific performance pertains to the domain of equity; in India, to that of statutory law. In England there is no period of limitation for instituting a suit for the said relief and, therefore, mere delay - the time lag depending upon circumstances - may itself be sufficient to refuse the relief; but, in India, mere delay cannot be a ground for refusing the said relief, for the statute prescribes the period of limitation.
In England there is no period of limitation for instituting a suit for the said relief and, therefore, mere delay - the time lag depending upon circumstances - may itself be sufficient to refuse the relief; but, in India, mere delay cannot be a ground for refusing the said relief, for the statute prescribes the period of limitation. If the suit is in time, delay is sanctioned by law; it is beyond time, the suit will be dismissed as barred by time; in either case, no question of equity arises." The ratio mentioned above has also been followed recently by this Court in R. Lakshmikantham v. Devaraji, (2019) 8 S.C.C. 62 . We, therefore, have no hesitation in holding that mere delay alone in filing the suit for specific performance, without reference to the conduct of the Plaintiff, could not be a ground for refusing the said relief when the suit was filed within the statutory time limit by the respondentPlaintiff. "It is significant that this explanation carves out a contract which involves payment of money as a separate class from Sec. 16(c). Explanation (i) uses the words "it is not essential for the Plaintiff actually to tender to the defendant or to deposit in court any money except when so directed by the court". (emphasis supplied) This speaks in a negative term of what is not essential for the Plaintiff to do. This is more in support of the Plaintiff that he need not tender to the defendant or deposit in Court any money, but the Plaintiff must [as per Explanation (ii)] at least over his performance or readiness and willingness to perform his part of the contract". 18. In Sukhbir Singh v. Brij Pal Singh, (1997) 2 SCC 200. This Court had laid down that the law is not in doubt and is not a condition that the respondents (Plaintiffs) should have ready cash with them. It is sufficient for the respondents to establish that they could pay the sale consideration. They don't need to always carry the money with them from the date of the suit till the date of the decree. The said principle was followed in the case of A. Kanthamani v. Nasreen Ahmed, (2017) 4 SCC 654 . in case of C.S. Venkatesh v. A.S.C. Murthy, (2020) 3 SCC 280 . etc. 40. In Nathulal Vs. Phoolchand, A.I.R. 1970 SC 546.
The said principle was followed in the case of A. Kanthamani v. Nasreen Ahmed, (2017) 4 SCC 654 . in case of C.S. Venkatesh v. A.S.C. Murthy, (2020) 3 SCC 280 . etc. 40. In Nathulal Vs. Phoolchand, A.I.R. 1970 SC 546. the Hon'ble Apex Court observed that: 6.........To prove himself ready and willing, a purchaser does not necessarily have to produce the money or to vouch for a concluded scheme for financing the transaction: Bank of India Ltd. and Ors. v. Jamsetji A. H. Chinoy and Messrs. Chinoy and Company, A.I.R. 1950 P.C. 90 at p.96. 41. In light of the above settled legal position, this Court views that mere non-deposit of the balance sale consideration amount cannot be a ground to hold that the Plaintiff is not ready and willing to perform his part of the contract. It is not the appellant/defendant's case that, despite the direction of the trial court or this court, the respondent/Plaintiff failed to deposit the amount. 42. Moreover, the defendants disputed the Plaintiff's right to get execution of the registered sale deed by taking various pleas without cooperating with the Plaintiff for taking up measurement of the schedule property. Now, the defendants cannot take advantage of their wrong and then plead that a grant of decree of specific performance would be inequitable. It is not established by the defendants that during the period between Ex.A1 and the date of filing of the suit, there was a rise in prices regarding immovable properties like the plaint schedule property, which made the Plaintiff avail of this opportunity. Escalation of prices cannot be a ground for denying the relief of specific performance. Even otherwise, the Plaintiff has approached the Court by filing a suit for specific performance within six months. As such, the observations made in the decision in the U.N.Krishnamurthy case, as referred to supra, that the suit had been filed, just before the expiry of the limitation, and no explanation is forthcoming for the long delay of three years do not apply to the present case. 43. The court observes that the evidence on record suggests that the defendants did not fulfill their obligation to measure the schedule property as stipulated in the agreement (Ex.A.1). It implies that the defendants were unwilling to proceed with the sale of the schedule property and did not adhere to the agreement terms regarding property measurements. 44.
43. The court observes that the evidence on record suggests that the defendants did not fulfill their obligation to measure the schedule property as stipulated in the agreement (Ex.A.1). It implies that the defendants were unwilling to proceed with the sale of the schedule property and did not adhere to the agreement terms regarding property measurements. 44. This court affirms that after careful consideration of the evidence and correspondence between the parties, it concurs with the trial judge's conclusion. This court agrees that Plaintiff consistently demonstrated readiness and willingness to fulfill his contractual obligations while the defendants were evading their responsibilities. 45. Sec. 20(2) of the Specific Relief Act contains the cases in which the Court may properly exercise discretion not to decree specific performance. Three types of cases have been given under subsection (2) in the form of clauses (a), (b) & (c), in which the Court exercises its discretion not to decree specific performance; it is useful to extract the said clauses hereunder: (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the Plaintiff an unfair advantage over the defendant; or (b) 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 or (c) where the defendant entered into the contract under circumstances which, though not rendering the contract voidable, make it inequitable to enforce specific performance. 46. The instant case does not fall under any of these clauses. Usually, when the trial Court exercises its discretion in one way or another after appreciating the entire evidence and the materials on record, the appellate Court should only interfere if it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The appellate Court should also not exercise its discretion against the grant of specific performance on extraneous considerations or sympathetic considerations. It is true, as contemplated under Sec. 20 of the Specific Relief Act, that a party is not entitled to get a decree for a specific performance merely because it is lawful to do so.
The appellate Court should also not exercise its discretion against the grant of specific performance on extraneous considerations or sympathetic considerations. It is true, as contemplated under Sec. 20 of the Specific Relief Act, that a party is not entitled to get a decree for a specific performance merely because it is lawful to do so. Nevertheless, once an agreement to sell is legal and validly proved and further requirements for getting such a decree are established, the Court has to exercise its discretion to grant relief for a specific performance. In the present case, the Defendants had neither pleaded hardship nor produced any evidence to show that it would be inequitable to order specific performance of the agreement 47. In Veeramareddy Nagabhushana Rao V. Jyothula Venkateswara Rao, 2011 (1) ALT 600 (DB). the Division Bench of the composite High Court of Andhra Pradesh held that: xxxxxxxxxxxxxxxxxxxxx 32.............. The Plaintiff cannot be denied the equitable relief and, more so, the ease of specific performance being discretionary, and the trial Court, having rightly exercised the said discretion based on the available material, is not liable to be interfered with in Appeal. 48. In P.Ramasubbamma Vs. V.Vijayalakshmi and Ors., 2022 (2) DNJ 625 . the Hon'ble Apex Court observed that: Once the execution of the agreement to sell and the payment/receipt of advance substantial sale consideration was admitted by the vendor, nothing further was required to be proved by the Plaintiff - vendee. Therefore, as such, the learned Trial Court rightly decreed the suit for the specific performance of an agreement to sell. The High Court was not required to go into the aspect of the execution of the agreement to sell and the payment/receipt of substantial advance sale consideration once the vendor had specifically admitted the execution of the agreement to sell and receipt of the advance sale consideration; thereafter no further evidence and/or proof was required. 49. In Veeramareddy Nagabhushana Rao V. Jyothula Venkateswara Rao, 2011 (1) ALT 600 (DB). the Division Bench of the composite High Court of Andhra Pradesh referred to the decision of Mysore State Road Transport Corporation Vs. Mirja Khasim Ali Beg and Another, A.I.R. 1977 SC 747.
49. In Veeramareddy Nagabhushana Rao V. Jyothula Venkateswara Rao, 2011 (1) ALT 600 (DB). the Division Bench of the composite High Court of Andhra Pradesh referred to the decision of Mysore State Road Transport Corporation Vs. Mirja Khasim Ali Beg and Another, A.I.R. 1977 SC 747. wherein the Hon'ble Supreme Court was of the view that once discretion has been exercised by the lower Court in a given set of facts in favour of a party unless that discretion exercised is capricious, the appellate Court would not interfere since another possible result could have come in the suit, had the appellate Court decided the suit. 50. In Prakash Chandra Vs. Angadlal and Others, A.I.R. 1979 SC 1241. the Hon'ble Supreme Court observed that the ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. In the present case, the conduct of the Plaintiff has not been such as to disentitle him from the relief of specific performance. 51. In Nirmala Anand V. Advent Corporation Private Limited. the Hon'ble Apex Court held that: 6) It is true that the grant of decree of specific performance lies at the discretion of the court, and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court, in its discretion, can impose any reasonable condition, including payment of an additional amount by one party to the other while granting or refusing a decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the Plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase in price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily, the Plaintiff cannot be allowed to have, for her alone, the entire benefit of a phenomenal increase in the value of the property during the pendency of the litigation.
As a general rule, it cannot be held that ordinarily, the Plaintiff cannot be allowed to have, for her alone, the entire benefit of a phenomenal increase in the value of the property during the pendency of the litigation. 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 the specific performance. There may be other circumstances in which parties may not have any control. The totality of the circumstances is required to be seen. 52. The learned counsel for the appellants/defendants argues that despite the Plaintiffs agreeing to the condition in Ex.A.1 agreement regarding the forfeiture of the advance and cancellation of the agreement if the balance amount is not paid within two months, PW.1 stated that he does not accept this condition. Additionally, PW.1 testified that the defendants came and had a sale deed prepared through Gopalakrishnamurthy, but he was unaware of what happened to that sale deed. 53. After reviewing all the evidence on record, the court observes that neither party has provided detailed information on what transpired between them. The record does not indicate why, despite the property being measured at the time of the Plaintiff, the Plaintiff demanded the defendants to measure the land in the Ex.A.2 notice. The defendants, in their reply notice, did not address the issue of previous measurements or explain why they did not comply with the Plaintiff's request. Considering the lack of serious dispute regarding the terms of the agreement, this court finds that an additional amount of Rs.3, 50, 000.00 be awarded to the defendants to meet the ends of justice. 54. The trial court comprehensively analyzed the pleadings and the evidence of the parties. It held that the Plaintiff has succeeded in proving the execution of the Ex.A.1 agreement by defendants 1 and 2. Merely because a recital had been made in Ex.A.1 specifying some time that by itself could not make the time the essence of the contract concerning the immovable property. 55. This court also notes that, per the orders in I.A. No.2 of 2023, this court restrained the defendants from removing the standing timber (eucalyptus tree).
Merely because a recital had been made in Ex.A.1 specifying some time that by itself could not make the time the essence of the contract concerning the immovable property. 55. This court also notes that, per the orders in I.A. No.2 of 2023, this court restrained the defendants from removing the standing timber (eucalyptus tree). This court recognizes that, in the absence of specific terms in the agreement, the defendants are generally entitled to remove the trees they have raised. However, they must do so within the time stipulated by the court, considering that the trees are ripe for harvesting. 56. After reviewing all the evidence on record, this Court upholds the trial court's findings that the defendant executed Ex.A.1 agreement agreeing to the terms and conditions. On the facts and circumstances of the case, this Court views that the Plaintiff is always ready and willing to perform his part of the contract and that the Defendants are evading their responsibility. There are no justifiable reasons to arrive at a different conclusion. The learned trial Judge used his discretion to grant relief of specific performance of the agreement, and the said discretion was based on the proper exercise of sound principles. The conduct of the defendants resisting the execution of the sale deed is quite incorrect. 57. The findings of the trial court are accurate, and there is no need for interference except for the inclusion of interest on the balance sale consideration amount and awarding additional amount. Having concluded that the Judgment of the trial court results from proper appreciation of evidence, I find no illegality or arbitrariness in the impugned Judgment. Hence, viewed from any angle, especially in light of the findings which had been recorded in detail by the trial Court while answering the issues. This Court views that the findings arrived at by the trial Court are correct, and no justifiable reasons have been shown by the Appellants/Defendants for arriving at different conclusions except as indicated above. Accordingly, the points raised in the Appeal are answered. 58. As a result, (a) The Appeal is partly allowed.
This Court views that the findings arrived at by the trial Court are correct, and no justifiable reasons have been shown by the Appellants/Defendants for arriving at different conclusions except as indicated above. Accordingly, the points raised in the Appeal are answered. 58. As a result, (a) The Appeal is partly allowed. The Judgment and decree dated dt.28/3/2011 passed in O.S.No.43 of 2007 by the learned Judge, Family Court - cum - Additional District Judge, Ongole, is hereby confirmed, granting the relief of specific performance with costs, and (b) The Defendants are granted permission to harvest the ripe eucalyptus plants, within three (3) months from the date of receipt of Judgment. Failure to do so empowers the Plaintiff to seek his remedies by approaching the trial Court. (c) Both parties are directed to engage the qualified surveyor and measure the suit schedule property within two (2) months from the date of eucalyptus plant removal. (d) The Judgment and decree dtd. 28/3/2011 passed in O.S.No.43 of 2007 is modified, directing the respondent/Plaintiff to deposit the outstanding sale consideration along with interest at the rate of 18% per annum from 1/1/2007 until the date of deposit in the Court. This deposit should occur within two months from the date of measurement of the land, based on the determined actual extent. (e) The Plaintiff is further instructed to deposit an additional amount of Rs.3, 50, 000.00 (Rupees Three Lakhs Fifty Thousand Only) within two months from the date of Judgment, in addition to the balance sale consideration amount; (f) Upon such deposit, defendants 1 and 2 must execute the sale deed in favor of the Plaintiff within one month. Failure to comply will lead to the Court executing the sale deed in favor of the Plaintiff for the plaint schedule property. (g) After the execution of the sale deed, Defendants 1 and 2 are entitled to withdraw the amount deposited in the Court. (h) In the facts and circumstances, the parties have to bear their costs in the Appeal. Miscellaneous petitions pending, if any, in this Appeal, shall stand closed.