Andhra Pradesh High Court - Amravati
M.S.Jayapal Babu vs Mekala Usman Basha on 25 January, 2024
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
APPEAL SUIT No.642 of 2009
JUDGMENT:
This Appeal under Section 96 of Code of Civil Procedure
(C.P.C.) is filed by the defendant in the suit impugning the
judgment dated 21.07.2009 of learned V Additional District
Judge, Rayachoty in O.S.No.25 of 2008. Respondent Nos.1 and
2 were the plaintiffs in O.S.No.25 of 2008.
2. Sri P.Girish Kumar, the learned Senior Counsel for
appellant and Smt. D.Padmavathi, the learned counsel for
respondents submitted their respective arguments.
3. The controversy between the parties is related to an
agreement for sale dated 27.06.2005. Before the learned trial
Court this unregistered agreement for sale was marked as
Ex.A.1 on behalf of the plaintiffs. On the same day between the
same parties another document titled as a chit came to be
executed as per Ex.A.2. These two documents were executed by
defendant in favour of the plaintiffs. The contents of the
documents and the execution of the documents have not been
in dispute. After noticing the contents of these documents, it is
appropriate to consider the rival claims. The agreement for sale
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refers to five items of immovable properties and the schedule
appended to the agreement for sale gives full descriptive
particulars to these immovable properties. Under the
agreement for sale the defendant/appellant agreed to sell 2/3 rd
share of him in favour of the plaintiffs. Therefore, in favour of
both the plaintiffs he had executed Ex.A.1 as well as Ex.A.2.
The total extent of the five items is 60 sarams. Out of them
defendant agreed to sell 40.5/2 sarams to plaintiffs. One saram
is equal to 270 square feet. Under Ex.A.1 the agreed sale
consideration per saram is Rs.45,000/-. However, under Ex.A.2
parties agreed to sell and purchase at the rate of Rs.41,000/-
per saram. It is with reference to change of the amount of sale
consideration per each saram alone Ex.A.2 was executed
between the parties. Other than that change, Ex.A.2 has no
effect on Ex.A.1. In these circumstances, it is sufficient to
notice all the terms and conditions that are agreed upon
between the parties as incorporated in Ex.A.1. The total
consideration for 40.5/2 sarams was fixed at Rs.18,30,000/-
having been calculated at the rate of Rs.45,000/- per each
saram. On the date of execution of Ex.A.1 plaintiffs paid and
the defendant received advance sale consideration of
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Rs.1,00,000/-. With reference to payment of balance sale
consideration and the mutual rights and obligations of parties
the rest of the terms incorporated in Ex.A.1 are required to be
noticed keenly. Under this agreement plaintiffs agreed to pay
Rs.3,57,500/- towards one part of the sale consideration and
they agreed to pay it on 15.07.2005 and after making such
payment they must obtain a receipt from the defendant. The
other term incorporated in Ex.A.1 is with reference to the
remaining balance sale consideration of Rs.13,72,500/-.
Plaintiffs had agreed to pay the said balance sale consideration
within six months from the date of Ex.A.1 dated 27.06.2005.
Thus, the outer date fixed for payment of Rs.13,72,500/- was
fixed at 27.12.2005. Ex.A.1 reads that defendant on receiving
such balance sale consideration within six months from the
date of Ex.A.1 would along with his mother execute a regular
registered sale deed in favour of plaintiffs. It is further recited
in Ex.A.1 that if the plaintiffs failed to pay the remaining
balance sale consideration of Rs.13,72,500/- within the time
prescribed, the amount of Rs.1,00,000/- that was received as
advance sale consideration stands forfeited in favour of the
defendant. It is further recited that the plaintiffs would not get
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any rights over the agreement schedule property. It is then
recited in Ex.A.1 that if the plaintiffs pay that remaining
balance sale consideration of Rs.13,72,500/- within the time
prescribed and if the defendant failed to attend for registration
of regular registered sale deed or if the defendant refused to
receive such balance sale consideration, then the plaintiffs are
entitled to deposit the said balance sale consideration into
Court and obtain a regular registered sale deed from the Court
and recover the litigation expenses from the defendant.
4. Alleging breach of conditions of agreement for sale on part
of the defendant, the plaintiffs presented their plaint on
25.10.2007 and it was registered by the learned trial Court on
29.10.2007. The plaint narrates the contents of Exs.A.1 and
A.2. At paragraph No.3 of the plaint it is mentioned that the
property belonged to the defendant and accordingly he executed
the agreement for sale. Throughout the plaint plaintiffs have
mentioned the calculations of amounts as per Ex.A.1 wherein
per saram the agreed sale consideration is Rs.45,000/- and also
furnished calculations of sale consideration in terms of Ex.A.2
whereunder the sale consideration was modified and was fixed
at Rs.41,000/- per saram. At paragraph No.4 plaint alleges that
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the first payment of Rs.3,16,832/- was to be paid by the
plaintiffs to the defendant on or before 15.07.2005 and the
defendant had to receive it and had to measure the plaint
schedule property and fix the boundary stones. That the
plaintiffs offered to pay the amount to the defendant and
requested the defendant for measurements of property and for
fixation of boundary stones. That the defendant did not agree to
receive the said amount and did not agree to measure the
property and fix the boundary stones and the defendant
demanded Rs.3,57,500/- which is on a calculation of
Rs.45,000/- per saram fixed under Ex.A.1 and not under
Ex.A.2. The plaint then narrates the exchange of notices
between parties that commenced with the first notice from
plaintiffs issued on 22.08.2005. It further states that plaintiffs
also issued a third notice dated 20.12.2005 demanding the
defendant to receive the balance sale consideration as agreed
upon between the parties which stands at Rs.15,67,332/- and
informed him that the plaintiffs would be waiting at the Sub-
Registrar's Office at Rayachoty on 27.12.2005 from 9:00 A.M. to
5:00 P.M. The defendant received this notice only on
03.01.2006. He did not issue any reply notice. Defendant failed
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to perform his part of the contract. Several mediations were
held through village elders, but they did not yield any result.
That the plaintiffs have always been ready and willing to
perform their part of the contract. That they are willing to
deposit the balance sale consideration either as per calculations
of Ex.A.1 or as per calculations of Ex.A.2. It is with these
allegations they made the prayer in the suit which reads as
below:
"1) Directing the defendant to receive the balance of
amount and to execute a registered sale deed in
favour of the plaintiffs in respect of 2/3rd of the suit
schedule property within the time fixed by the
Hon'ble Court and if the defendant fails to do so, the
Hon'ble Court may be pleased to execute the regular
sale deed in favour of the plaintiffs and deliver the
property to the plaintiffs as per law.
2) Directing the defendant to pay the costs of the suit.
3) and pass such other relief or reliefs as this Hon'ble
Court may deem fit and proper in the circumstances
of the suit in the interest of Justice."
5. Defendant filed his written statement admitting execution
of Exs.A.1 and A.2. It is mentioned that Ex.A.2 chit was
executed only for the convenience of plaintiffs and not at the
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willingness of the defendant. It is categorically stated that the
plaintiffs failed to perform their part of the contract and that
they have not been ready to perform their part of the contract
and that they had no financial capacity to perform the same.
That the agreement for sale or the chit do not have any term
incorporated about obligation of the defendant to measure the
property and fix the boundary stones. Agreement contains the
boundaries and the notice issued by the plaintiffs contains the
boundaries and the question of further measuring the
properties and fixation of boundaries does not arise. Only to
overcome the failures on part of the plaintiffs, they have dodged
the matter for more than 2 ½ years and filed the suit belatedly.
That the suit is barred by limitation. There was never mediation
through village elders or anyone and plaintiffs failed even to
mention the names of panchayatdars who allegedly held the
mediation. The plaintiffs never approached the defendant. On
the other hand, it is this defendant who was approaching the
plaintiffs personally and through the mediators to pay the
balance sale consideration and obtain the registered sale deed
in terms of the agreement. The plaintiffs have procrastinated
the issue since the values of the properties went down in that
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area. Now that as the value of the properties raised, the
plaintiffs have come up with these false allegations. That the
suit is not maintainable and prayed for dismissal of it.
6. On considering the rival contentions and the material on
record, the learned trial Court framed the following issues for its
consideration:
1. Whether the plaintiffs are entitled to insist upon the
defendant to sell away the property at the rate of
Rs.41,000/- per saram instead of Rs.45,000/- per
saram as agreed in the agreement dated 27.06.2005 or
not?
2. Whether the boundaries and measurements of the suit
schedule property were already fixed by the time of the
agreement, dated 27.06.2005 or not?
3. Whether the plaintiffs have been all along ready and
willing to perform their part of contract as per the
terms of the agreement, dated 27.06.2005?
4. Whether the plaintiffs filed this suit because of price
hike over the suit schedule property or not?
5. Whether the plaintiffs are entitled for decree of specific
performance of agreement?
6. To what relief the plaintiffs are entitled for?
7. Both sides led their evidence. First plaintiff testified as
PW.1. Father-in-law of second plaintiff testified as PW.2 to
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prove execution of Exs.A.1 and A.2. To prove that defendant
refused to receive balance sale consideration and refused to
execute a registered sale deed and that a panchayat of elders
was conducted, PW.3 and PW.4 testified. The original
agreement for sale is Ex.A.1 and the original chit is Ex.A.2 and
Exs.A.3 to A.10 are to show the exchange of notices and
Exs.A.11 to A.20 are filed to show that the plaintiffs even had
enough money in their bank accounts at the relevant time. As
against that, the sole defendant testified as DW.1 and no
documents were marked on his behalf.
8. The prime contention argued before the trial Court on
behalf of the defendant was that the plaintiffs were not ready
and willing to perform their part of the obligations. That
argument was sought to be sustained on a reasoning that at the
relevant time of Ex.A.1-agreement for sale though a fair sale
consideration was settled between parties, soon thereafter there
was reduction in prices of immovable properties in that area
and the plaintiffs were unwilling to proceed further and only
after the prices started raising once again, the plaintiffs came
forward with false litigation and the correspondence indulged in
is only to cover up their laches and to make someone to believe
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as if they have been ready while in truth and substance they
were not ready and willing to perform their part of the
obligations in terms of the agreement for sale. On considering
the evidence brought on record, the learned trial Court agreed
with the case of plaintiffs and observed that the plaintiffs have
always been ready and willing to perform their part of the
obligations and that the same could be seen from issuance of
notice within a short period after the first fixed date for payment
and that the demand of the plaintiffs in asking the defendant to
measure the property and then receive the remaining balance
sale consideration is not unreasonable since it could not be said
that it is possible to obtain possession without there being
boundary stones fixed after taking due measurements. While
reaching to its conclusions in granting the relief of specific
performance, the learned trial Court, while answering its issues,
had stated that Ex.A.1-agreement for sale does not contain any
stipulation for cancellation after a specified date and defendant
did not issue any notice indicating that Ex.A.1 stood cancelled.
It is in those circumstances, it decreed the suit in the following
terms:
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"In the result, the suit is hereby decreed with
costs and the defendant is hereby directed to receive the
balance of sale consideration from the plaintiffs i.e.,
Rs.17,30,000/- and to measure the suit schedule
property and fix the boundaries for the property sold to
the plaintiffs and to execute the registered sale deed in
favour of the plaintiffs and deliver possession of the
property to the plaintiffs within sixty days from the date
of this judgment and decree, failing which the plaintiffs
are at liberty to get it done through the process of the
Court."
9. Aggrieved defendant preferred this appeal impugning the
said judgment. In the memorandum of grounds of appeal, it is
urged that there was misappreciation of facts and evidence on
part of the trial Court and it failed to construe the terms of
Ex.A.1 in their true and legal perspective. It is further
mentioned that under Ex.A.1 there is no written stipulation
agreed upon between parties obligating the defendant to
measure the property and fix the boundary stones and the
plaintiffs on their own invented such a story only to cover up
their laches and while the evidence is crystal clear in that
regard, the learned trial Court not only failed to appreciate
properly but also passed a judgment and decree containing a
direction to the defendant/appellant to measure the property
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and fix the boundary stones which was never a condition
incorporated in Ex.A.1 and not a prayer in the plaint. That the
agreement itself is crystal clear that it is not the entire property
that was agreed to be sold and the defendant agreed to sell only
2/3rd share out of the plaint schedule property and the
remaining part was to be retained by the defendant and his
mother and the plaintiffs having agreed to purchase in that way
the undivided share there was no obligation for measurements
being taken and boundary stones being fixed. PW.2 to PW.4 are
related to plaintiffs and are interested witnesses and their
evidence could not be given undue weight. It is also mentioned
in the grounds of appeal that the mother of the defendant being
joint owner of the property ought to have been joined as a party
but the plaintiffs did not choose to implead her and therefore,
the suit was bad for non-joinder of necessary parties and Ex.A.1
could not be enforced in the absence of such necessary party.
10. During the arguments, the learned counsel for appellant
urged that the evidence of PW.1 and his earlier correspondence
in the form of notices would by themselves indicate serious
discrepancies and on considering such discrepancies, one could
find that the plaintiffs have not been ready and willing to
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perform their part of the obligations at the relevant time.
Ex.A.1-agreement for sale contains forfeiture of advance sale
consideration of Rs.1,00,000/- and in the light of such agreed
term, one should construe that the agreement stood cancelled
when the plaintiffs failed to pay the first installment of the
balance sale consideration within time. From the reply notices
issued on behalf of the defendant/appellant and from the
evidence of DW.1, one would clearly notice that the time
stipulations mentioned in Ex.A.1 are very important and they
could be considered the time was essence of the contract. In
violation of all that the learned trial judge decreed the suit and
the learned counsel urges to upset it.
11. As against it, the learned counsel for respondents/
plaintiffs urged that Ex.A.1-agreement for sale and Ex.A.2-chit
hold good and their contents are undisputed between parties
and as per those terms and as per the subsequent conduct of
appellant/defendant, there is no repudiation of Ex.A.1 or Ex.A.2
and the fact that agreed sale consideration per saram as per
Ex.A.1 is Rs.45,000/- and as per Ex.A.2 is Rs.41,000/- and
that the bargain having been settled plaintiffs have been offering
the defendant/appellant to receive the balance sale
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consideration. Despite that, he was refusing to receive and
register the sale deed. Learned counsel further urged that
entire balance sale consideration was deposited on obtaining
the judgment and decree of the trial Court and the deposit was
made by offering the balance sale consideration at the rate of
Rs.45,000/- per saram as stipulated in Ex.A.1. The contention
of appellant that the time is essence of the contract is only
raised for the purpose of appeal and it was never part of the
term in Ex.A.1 and it was not considered as an issue before the
trial Court and learned counsel argued that about non-joinder
of necessary party the contention raised in the grounds of
appeal was as not part of the pleadings and was not an issue
and such a fact cannot be raised for the first time in the first
appeal. Learned counsel submits that the learned trial Court
very judiciously considered the facts and evidence and rightly
followed the law and appropriately granted the judgment and
decree and its judgment cannot be called as perverse and
therefore, there could be no warrant for interference in this
appeal.
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12. On considering the rival submissions and the entire
evidence on record and the judgment impugned, the following
points fall for consideration:
1. Whether breach of Ex.A.1 was on the part of
respondents/plaintiffs or the appellant/defendant?
2. In the light of terms of Ex.A.1 and the contentions
raised by both sides that the time stipulations in
Ex.A.1 have any relevance or they have to be ignored?
3. On a total consideration of the entire case, could it be
said that respondents/plaintiffs have been ready and
willing to perform their part of the obligations but the
appellant/defendant unreasonably refused to perform
his part of the obligations?
Point Nos.1 to 3:
13. Sale and purchase of immovable properties is a common
phenomenon in society. Conveying title and possession by way
of a registered sale deed need not necessarily be preceded by
any agreement for sale. However, it is also quite common that
the vendor and purchaser take between themselves an
agreement for sale and thereafter a regular registered sale deed.
It is not unreasonable to think that a vendor does not want
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entire sale consideration at once and does not want execution of
a registered conveyance on receiving the entire sale
consideration at once. Every conveyance or an agreement for
sale is always preceded by some oral bargain between parties
and on reaching consensus they would reduce the same in the
form of an agreement for sale. In the case at hand, Ex.A.1 is
the agreement for sale dated 27.06.2005. The outer limit for
completion of mutual obligations and for obtaining a registered
sale deed was fixed in it by mentioning six months as a period
which expired by 27.12.2005. While so, the purchasers filed
their plaint on 25.10.2007. It cannot be disputed and in fact it
was not disputed in this appeal that the suit was laid well
within the period of three years in terms of Article 54 of the
Schedule of the Limitation Act in whichever way the time is
computed. The pleadings and evidence on both sides and the
observations of the trial Court clearly indicate that the total
agreed sale consideration is Rs.18,30,000/-. Under Ex.A.1,
plaintiffs paid and defendant/appellant received Rs.1,00,000/-
on the date of Ex.A.1 which is 27.06.2005. By the time the suit
was filed only that Rs.1,00,000/- was paid and received. Thus,
a fraction of consideration alone was paid and the major part of
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the consideration did not flow from one hand to the other. It is
disputed before the trial Court as well as here as to whether
appellant refused to receive or the respondents/plaintiffs did
not really pay or did not even offer to pay any part of the
balance sale consideration. Before we go further it is to be
noticed that as per Ex.A.1 the balance sale consideration was to
be paid at two stages. Rs.3,57,500/- was to be paid on or
before 15.07.2005. The next stage is for payment of
Rs.13,72,500/- on or before 27.12.2005. What is to be seen is
it is to whose benefit time stipulations for payment of balance
sale consideration had come to be agreed between parties. Is it
a facility afforded to purchaser/appellant or is it a facility
provided for owner of the property/respondents/plaintiffs.
While Ex.A.1 is silent and pleadings are silent and evidence is
silent on this aspect of the matter, it strikes to commonsense
that when a vendor was not paid the entire sale consideration at
once, it only signifies that the purchaser wanted to avail some
time to pass on the sale consideration. It could never be
disputed that when parties agreed to pay and receive balance
sale consideration in certain installments, it surely serves the
benefit to the purchasers who had to muster their funds to
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accomplish the sale deed. Viewed in that angle, the timelines
contained in an agreement for sale are obligations undertaken
by the purchasers. Therefore, the purchasers must abide by the
timelines. An agreement for sale is a contract. A contract
contains terms and conditions. The terms and conditions
contained in a contract are products of volition on part of the
parties. What all the parties have incorporated in an agreement
for sale is law between the parties and must be strictly complied
with and any excuses offered must be construed first on the
basis of the terms agreed between the parties and second in
terms of the equity and law. Viewing the controversy in the
above perspective, the matter must be considered. Ex.A.1
containing five items of immovable property shows that the
executant/defendant/appellant agreed to convey 2/3rd share
right in all those items of property in favour of plaintiffs. The
executant has mentioned in Ex.A.1 that on receiving sale
consideration the executant would come along with his mother
and execute a registered sale deed in favour of purchasers or to
their nominees. It is not in dispute that the executant and his
mother together owned these properties. It is also not in
dispute that the mother of executant is not a signatory to
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Ex.A.1. It is also not in dispute that she is not even a witness
or an attestor to Ex.A.1. Evidence of executant/DW.1 makes it
clear that the boundaries mentioned in Ex.A.1-agreement for
sale which are also mentioned in the plaint schedule are
boundaries for the entire extent of the property in each of the
items and those boundaries are not boundaries for the agreed
2/3rd share. It is in the light of these facts when one looks at
Ex.A.1, it is very clear and PW.1 also admitted in his cross-
examination that Ex.A.1 does not contain any obligation on part
of defendant to measure the property and fix the boundary
stones and then execute the registered sale deed.
14. Ex.A.1 does not contain any clause concerning
repudiation or cancellation of this agreement on occurrence of
an event. The reply notice issued by the defendant/appellant
did not indicate that the agreement was repudiated by him. The
fact that plaintiffs being other parties to this agreement had
sued for specific performance is indicative that they considered
the agreement subsisting. Thus, for the purpose of law Ex.A.1-
agreement for sale was subsisting and it was not repudiated.
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15. There is a clause in Ex.A.1 for forfeiture of advance sale
consideration of Rs.1,00,000/-. As per its terms this forfeiture
clause is recorded with reference to failure to pay
Rs.13,72,500/- which is the second and final payment that was
to be made by the plaintiffs. One has also to see that prior to
this payment there was another payment that was agreed upon.
Ex.A.1 stipulated that on or before 15.07.2005 the plaintiffs had
to pay Rs.3,57,500/-. Ex.A.1 does not mention any
consequence such as forfeiture in the event of plaintiffs failing
to pay this installment of Rs.3,57,500/- within time. How it has
to be construed is one important question. Does this mean that
the plaintiffs so impressed the defendant that without any
deviation they would make such payment. Be it noted, only
three weeks time was granted for this payment from the date of
Ex.A.1. Viewed in the facts and circumstances, it proved that
defendant needed that much of part sale consideration so soon
from the date of Ex.A.1. As against first installment payment,
the larger time is granted for the second installment of payment.
With reference to this second installment, defendant had
mentioned that if he refused to receive this money and refused
to execute registered sale deed the plaintiffs were at liberty to
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deposit the same into Court and sue him and obtain the
registered sale deed and costs for such litigation.
16. The trouble between parties started with reference to first
installment payment of Rs.3,57,500/- itself. The date for
payment is on or before 15.07.2005. What happened to that is
to be considered now. Ex.A.3 is the first of the notices between
parties and this was sent on behalf of the plaintiffs by his
counsel. This notice is dated 22.08.2005. Thus, from the
stipulated date of 15.07.2005 it was about five weeks thereafter
this first notice was sent by plaintiffs. In this notice it is
mentioned that one week prior to 15.07.2005 plaintiffs
approached defendant and offered to pay Rs.3,16,832/- at the
rate of Rs.41,000/- per saram (As per Ex.A.2-chit) and the
plaintiffs also requested the defendant to take the
measurements of the property and fix the boundary stones.
This notice alleges that defendant did not agree for both the
things. As per Ex.A.3-notice, the objection raised by the
defendant was that he was demanding this installment payment
to be paid at the rate of Rs.45,000/- per saram (as agreed in
Ex.A.1). This notice alleges that the defendant by doing so
violated the terms and conditions. By this notice plaintiffs
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called upon the defendant to measure and fix the boundary
stones and receive the balance sale consideration at two
installments after remitting it in terms of Ex.A.2-chit agreement.
This notice further states that if the defendant did not do it
plaintiffs would be obliged to file a suit for specific performance.
This is the crux of the dispute between the parties.
17. On analysis of contents of Ex.A.3, the following features
emerged:
As per Ex.A.3 both the plaintiffs met the defendant one
week prior to 15.07.2005 and offered money. This notice has
not disclosed the exact date of such meeting between them.
Thus, inferentially it can be said that the plaintiffs met the
defendant on 08.07.2005. In this regard, the evidence of PW.1
in his examination-in-chief is that the plaintiffs requested the
defendant to receive that part of the sale consideration as per
Ex.A.2 and make measurements and fix the boundaries but he
did not accept and refused to do it. Examination-in-chief of
PW.1 is absolutely silent as to when did they met the defendant.
It neither mentioned the date nor mentioned the number of days
earlier to the fixed date. It also does not show where did they
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meet the defendant. It also does not show who was present
when such offer and denial took place between the parties.
Thus, PW.1 left it vague. A party witness is expected to be
specific in details. Persons litigious in nature alone would leave
the details so as to raise a controversy. Be that as it may. On
behalf of the defendant, PW.1 was questioned in cross during
which time PW.1 categorically stated that on 14.07.2005 they
offered the first installment to the defendant and he refused to
receive. According to him, on 16.07.2005 the defendant left for
Ballary. Thus, on 15.07.2005 he was in Tsundupalli where the
properties are located. As per Ex.A.1, the date for payment of
this first installment is 15.07.2005 and PW.1 met the defendant
on 14.07.2005 which is one day earlier to the fixed date. This
evidence of PW.1 stands opposed to his own earlier statement
contained in Ex.A.3-notice whereunder they mentioned that
they met the defendant a week earlier which means on
08.07.2005. Thus, the date of offer of payment of first
installment of balance sale consideration is not proved to the
satisfaction of a Court of law in the context of the nature of
controversy raised before a Court of law.
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18. The next point to be seen from Ex.A.3-notice sent by the
respondents/plaintiffs to the appellant/defendant is the
demand on part of the plaintiffs in asking the defendant to
measure the property and fix the boundary stones. In the first
place, taking measurements of the property and fixing boundary
stones is not one of the conditions agreed upon between the
parties under Ex.A.1 or under Ex.A.2. There was no
subsequent agreement entered into between parties containing
any such stipulation for measurements and boundary stones.
As one reads from Ex.A.3-notice it is clear that it was a demand
for the first time raised by the plaintiffs. This notice does not
even indicate any assertion on part of the plaintiffs that on
earlier occasion the defendant agreed to measure the property
and fix the boundary stones. Thus, the plaintiffs raised an
issue that was never agreed upon between parties and basing
on such new issue raised by them when it was denied by the
defendant, they started contending that they are ready and
willing to have the contract performed, but the defendant is
refusing to perform his part of the obligation. Since Exs.A.1 and
A.2 did not obligate the defendant to measure the property and
fix the boundary stones, his refusal to measure and fix
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boundaries cannot be termed as his violation of Exs.A.1 and
A.2. For the first time at para No.4 of the plaint it is alleged
that an understanding was arrived at between both parties
whereunder the defendant had agreed to measure the property
and fix the boundary stones. That was reiterated by PW.1 in his
examination-in-chief. Thus, while the understandings between
the parties were reduced into writing under Exs.A.1 and A.2,
this alleged understanding was never reduced into writing. The
date on which such alleged understanding took place and the
place at which it took place and the persons in whose presence
it took place is not disclosed in the plaint or in the evidence of
PW.1. In the absence of such details, one must say that the
plaintiffs have pleaded known falsehood. To overcome this
hurdle, the conscious plaintiff examined PW.2. He is one of the
attestors to Ex.A.1. He stated in his evidence in chief about
such understanding arrived at between parties. He did not
explain as to why such understanding arrived at between the
parties the same was not incorporated in Ex.A.1 or Ex.A.2. In
his cross-examination he came out categorically saying that
between the parties in his presence there was no discussion
about measurements and fixation of boundary stones to be fixed
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by the defendant. Thus, the evidence makes it very clear that
on a non-existing term plaintiffs have been contending and
consuming time. In other words, the conduct of the plaintiffs by
resorting to such contentions shows that they were not ready
and willing to perform their part of the contract at the material
point of time.
19. Ex.A.1 makes it clear that the plaintiffs agreed to
purchase undivided 2/3rd share of the plaint schedule property.
If that be the case, what was the occasion for them to demand
for measurements and demarcation of boundaries. The
contention raised by the appellant/defendant that the plaintiffs
would become joint owners along with him and his mother to
the extent of 2/3rd share and that was the purport of Ex.A.1 is a
plausible argument that cannot be ignored or negatived.
20. Even if it is to be taken that there is always a need for
taking measurements and fixing boundaries as opined by the
trial Court, when would that occasion occur is to be considered.
This fact must be considered in the context of stipulated terms
agreed upon between the parties under Ex.A.1. Is it not
reasonable to think that the plaintiffs had to first pay the first
Dr. VRKS, J
installment of the remaining balance sale consideration on or
before 15.07.2005 and then ask the defendant to measure the
properties and fix the boundary stones and receive the balance
sale consideration.
21. Having expressed their desire to sue for specific
performance as mentioned in Ex.A.3-notice dated 22.08.2005
plaintiffs did not sue at any time soon thereafter but filed the
suit more than two years thereafter on 25.10.2007. Mere
indulgence in further correspondence cannot be called as a
ground for consuming so much time. The refusal to perform the
contract on part of the defendant was to the knowledge of the
plaintiffs even by 15.07.2005 and nothing prevented them to
sue the defendant soon thereafter. It is clear, one has to see
that the case of the defendant is that prices were low at that
point of time and therefore to dodge the issue plaintiffs were
creating the correspondence and only when the prices have
once again raised they sued for specific performance. Though
there is no perceptible evidence concerning fall in prices and
raise in prices, the contention raised by the defendant cannot be
simply brushed aside as it seems to fit in within the context of
facts that are clearly available on record. That the plaintiffs at
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the time of filing of the suit or thereafter holding money to
perform their part of the contract is no explanation to say that
they had money and were willing and ready to perform their
part of the contract on 15.07.2005 and immediately thereafter.
PW.1 in his cross-examination admitted that he had not
furnished any proof to show that the plaintiffs had
Rs.3,57,500/- with them or Rs.3,16,832/- with them on or
before 15.07.2005. What prevented them to furnish their proof
remained unexplained. There are no questions of law involved
in all this. It is a matter of fact that has to be scrutinized and
truth has to be found. The argument that the plaintiffs need
not deposit the money and that the time is not the essence of
the contract and the ruling cited in that regard gain their
relevance only if what happened on or before 15.07.2005 is
clear. As the discussion mentioned above made it clear that the
plaintiffs failed in all respects in discharging their obligations by
them one must necessarily conclude that they have not been
ready and willing to perform their part of the contract. When
the fault is with them, they cannot claim that the
defendant/appellant is at fault.
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22. Alagammal; Palaniammal; Mariammal; Pattayee
Ammal; Karupparaj; Lakshmi; Thangam; Maruthambal v.
Ganesan; Magudeeswari1 is cited by learned counsel for
appellant. The matter before their Lordships was concerning
suit for specific performance. Their Lordships referred to earlier
precedent and made specific reference to K.S. Vidyanadam v.
Vairavan2. Their Lordships held that irrespective of the fact
whether the time is essence of the contract or not if the
agreement for sale parties stipulated timelines Courts of law
cannot disregard those stipulations and they must give due
significance to those timelines which have been agreed upon
between the parties themselves.
23. Aniglase Yohannan v. Ramlatha3 (cited for
respondents/plaintiffs). Their Lordships were considering a
case about readiness and willingness on part of plaintiffs in a
suit for specific performance and the solemnity of the terms and
conditions and as to how the Courts of law must construe the
timelines and when they can be considered as time is essence of
2024 LawSuit(SC) 27
(1997) 3 SCC 1
Dr. VRKS, J
the contract and when they need not. While referring to Section
16(c) of the Specific Relief Act, their Lordships had categorically
stated that any person seeking benefit of the specific
performance of contract must manifest that his conduct has
been blemish less throughout entitling him to the specific relief.
The provision imposes a personal bar. The Court is to grant
relief based on the conduct of the person seeking relief. Viewed
from this legal perspective, the facts at hand, as discussed in
the earlier paragraphs of the present judgment, disentitled the
plaintiffs from obtaining a decree for specific performance since
the conduct of the plaintiffs was with blemish as they were
demanding the defendant to do something that was not part of
the contract and about which there was never an
understanding.
24. Learned counsel for respondents/plaintiffs cited Govind
Prasad Chaturvedi v. Hari Dutt Shastri 4. Their Lordships
held that mere fixation of the period within which the contract
has to be performed does not make the stipulation as to time
(2005) 7 SCC 534
AIR 1977 SC 1005
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the essence of the contract. When a contract relates to sale of
immovable property it will normally be presumed that the time
is not the essence of the contract. The intention to treat time as
the essence of the contract may be evidenced by circumstances
which are sufficiently strong to displace the normal
presumption that in a contract of sale of land stipulation as to
time is not the essence of the contract.
25. As against that, the learned counsel for
appellant/defendant cited Desh Raj v. Rohtash Singh 5. That
is a case where their Lordships referred to Saradamani
Kandappan v. S.Rajalakshmi6. The purport of the
observations are that a purchaser can no longer take shelter
under the principle that time is not of essence in performance of
contracts relating to immovable property, to cover his delays,
laches, breaches and non-readiness. In these days of galloping
increase in prices of immovable properties, to hold that a vendor
who took only an earnest money of about 10% of the sale price
and agreed for specific timelines for performance, did not intend
(2023) 3 SCC 714
(2011) 12 SCC 18
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that time should be the essence, will be a cruel joke on him, and
will result in injustice. Their Lordships further held saying that
the precedents from an era, when high inflation was unknown,
holding that time is not of the essence of the contract in regard
to immovable properties, may no longer apply, not because the
principle laid down therein is unsound or erroneous, but the
circumstances that existed when the said principle was evolved,
no longer exist. Adding to the misery is the delay in disposal of
cases relating to specific performance, as suits and appeals
therefrom routinely take two to three decades to attain finality.
As a result, an owner agreeing to sell a property for
Rs.1,00,000/- and received Rs.10,000/- as advance may be
required to execute a sale deed a quarter century later by
receiving the remaining Rs.90,000/-, when the property value
has risen to a crore of rupees. When the above two rulings are
seen in juxtaposition, the change of judicial attitude towards
timelines agreed upon between parties and the need of
adherence to those timelines of parties and the way the dispute
has to be resolved in such context changed in a great measure.
However, I must make it clear that in the present appeal the
principle followed is that the order of performance of obligations
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on part of the parties to the contract in the context of aspect
relating to readiness and willingness. Having found that at the
material point of time the plaintiffs/respondents were not ready
and willing to perform the contract, this Court is inclined to
disagree with the judgment of the trial Court and in this
conspectus only it had stated that adherence to timelines is a
matter of clear obligation of parties. Question of giving some
allowance for plaintiffs with reference to timelines do not arise
since the plaintiffs were acting against to the terms of the
contract demanding the opposite party to do something that
was never agreed upon between themselves. Therefore, rest of
the precedent cited at the bar concerning about time as essence
of the contract do not require any enunciation here. This Court
is of the considered opinion that the judgment of the trial Court
failed on vital aspects in appreciating the terms of the contract
and the evidence produced before it in that regard. Record
clearly establishes failure on part of plaintiffs in performing
their part of the obligations. All the points are answered in
favour of the appellant and against the respondents.
26. In the result, this Appeal is allowed. Consequently, the
impugned judgment dated 21.07.2009 of learned V Additional
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District Judge, Rayachoty in O.S.No.25 of 2008 is set aside and
the said suit stands dismissed. There shall be no order as to
costs.
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
_____________________________
Dr. V.R.K.KRUPA SAGAR, J
Date: 25.01.2024
Ivd
Dr. VRKS, J
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
Date: 25.01.2024
Ivd
