Andhra Pradesh High Court - Amravati

V. Sakunthalamma vs P. Dhanalakshmi Died Per Lrs Rr 2 To 6 on 29 October, 2024

APHC010416682003
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)

TUESDAY ,THE TWENTY NINETH DAY OF OCTOBER
TWO THOUSAND AND TWENTY FOUR

PRESENT

THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO

FIRST APPEAL NO: 23/2003

Between:

V. Sakunthalamma and 3 Others ...APPELLANTS

AND

P Dhanalakshmi Died Per Lrs Rr 2 To 6 ...RESPONDENTS

Counsel for the Appellants:

1. SINGAM SRINIVASA RAO

Counsel for the Respondents:

1. P V A PADMANABHAM

The Court made the following:

Judgment:

The appeal is filed against the judgment and decree dated 22-11-2002
in O.S.No.212 of 1990 passed by the learned Additional Senior Civil Judge,
Narasaraopet, Guntur District. The suit is filed for specific performance of
contract of sale.

2. The case of the plaintiff as narrated in the plaint, in brief, is as
follows:
(a) It is pleaded that the 1st defendant is the wife of 2nd defendant and
the 1st defendant is the owner of plaint schedule property having perfected her
title, offered the same for a consideration of Rs.1,85,000/- to the plaintiff and
agreed to deliver original title deeds and that the defendants 1 and 2 received
a sum of Rs.65,000/- from the plaintiff as part of sale consideration on
07-9-1985 and the 1st defendant executed an agreement of sale, which is
attested by the 2nd defendant and that the 1st defendant agreed to receive
balance of sale consideration by 07-01-1986 and to execute a regular
registered sale deed in favour of the plaintiff and that when the said
agreement of sale was misplaced by the plaintiff, the defendants 1 and 2
agreed to execute a fresh agreement of sale imposing a condition that they
will mention in fresh agreement that Rs.50,000/- was received under earlier
agreement and taking unfair advantage of misplacement of agreement, the
defendants 1 and 2 also received another sum of Rs.35,000/- from the plaintiff
and the 1st defendant executed a fresh agreement of sale attested by the
2nd defendant on 01-3-1986 and that the 2nd defendant, on behalf of the
1st defendant, also received another sum of Rs.5,000/- from the plaintiff and
endorsed on the said agreement and that the 1st defendant also received
another sum of Rs.40,000/- on 10-01-1986 from the plaintiff and executed
another agreement, also attested by the 2nd defendant and delivered
possession of the plaint schedule property to the plaintiff and as per the
agreement, balance of sale consideration is to be paid on or before 31-3-1986
and in default, the plaintiff has to pay interest at the rate of 24% per annum on
the balance amount.
(b) It is further pleaded that when the husband of the plaintiff died, the
plaintiff is shocked and the defendants, taking advantage of the same, issued
a registered notice, dated 30-7-1990, with false allegations and the plaintiff
issued a reply notice on 06-8-1990 and when the 1st defendant did not
execute a registered sale deed, the plaintiff filed this suit for specific
performance of agreement of sale.
3. Brief averments in the written statement filed by the 1st defendant are
as follows:
(a) It is contended that the 1st defendant is the owner of plaint schedule
property and the 2nd defendant is nothing to do with the same and the
1st defendant is having three sons and they are also having interest jointly in
the plaint schedule property and the suit is bad for non-joinder of necessary
parties. The 1st defendant admitted that she agreed to sell the plaint schedule
property for Rs.1,85,000/- and the plaintiff's husband paid only Rs.50,000/- as
advance and got executed an agreement of sale, dated 07-9-1985 and it is
agreed that balance of sale consideration is to be paid by 07-01-1986 and get
a regular registered sale deed from the 1st defendant and the plaintiff was
unable to get a regular registered sale deed by paying balance of sale
consideration within the time agreed and the 1st defendant approached the
plaintiff after 07-9-1985 and requested to pay the balance of sale
consideration, but the plaintiff and her husband postponed the payment and
finally, the plaintiff and her husband came to the 1st defendant and
represented that the original agreement is misplaced and obtained a fresh
agreement in favour of the plaintiff on 02-11-1985 under pressure and on that
date, a sum of Rs.35,000/- was paid and a sum of Rs.50,000/-, which was
paid at the time of execution of the first agreement, was given credit totaling to
Rs.85,000/- and the balance amount of Rs.1,00,000/- was agreed to be paid
on 01-3-1986 and it was agreed at that time that time will be the essence of
contract and if it is not paid by 01-3-1986, the agreement, dated 02-11-1985,
to be stands cancelled.
(b) It is further contended that when the 1st defendant demanded
through her husband to pay balance of sale consideration, they paid a sum of
Rs.50,000/- and requested time up to middle of January, 1986 and the
1st defendant received a sum of Rs.40,000/- and executed a fresh agreement
of sale on 18-01-1986 and thus, the 1st defendant has received a sum of
Rs.1,30,000/- only towards sale consideration by 18-01-1986 and the plaintiff
has to pay the balance of sale consideration with interest at 24% per annum
and take a registered sale deed from this defendant and the plaintiff evaded
the payment of balance of sale consideration and then, the 1st defendant
issued a notice, dated 30-7-1990, through her lawyer demanding to pay
balance amount by mentioning the balance as Rs.80,000/- along with interest.
The 1st defendant denied the alleged payment of Rs.30,000/- on 14-4-1986
under a receipt from her and alleged to be scribed by the 2 nd defendant. She
has no objection to execute a registered sale deed on payment of balance
amount of Rs.55,000/- together with interest at 24% per annum as agreed
between the parties, failing which she prayed to dismiss the suit.

4. During pendency of the suit before the trial Court, the 2nd defendant
died and defendants 3 and 4, who are the sons of defendants 1 and 2, are
added as legal representatives of the deceased 2nd defendant and they filed
a memo adopting the written statement filed by the 1st defendant.

5. Based upon the pleadings of both the parties, the trial Court framed
the following issues for trial:
(1) Whether the plaintiff is entitled for specific performance of contract
of sale ?
(2) Whether the plaintiff obtained possession of plaint schedule
property under agreement of sale ?
(3) Whether the plaintiff is entitled to alternative relief as prayed for ?
(4) Whether there is any cause of action to file the suit ?
(5) Whether the suit is bad for non-joinder of necessary parties ?
(6) Whether the plaintiff was ready to perform her part of contract ?
(7) Whether the time is essence of contract ?
(8) Whether the alleged receipt dated 14-4-1986 is valid ? and
(9) To what relief ?

6. During the course of trial, on behalf of the plaintiff, P.Ws.1 to 4 are
examined and Exs.A-1 to A-10 are marked. On behalf of the defendants,
D.Ws.1 to 4 are examined and no documentary evidence is adduced on their
behalf.
7. After completion of the trial and hearing the arguments of both sides,
the trial Court decreed the suit for specific performance of agreement of sale
with regard to the suit schedule property as prayed for, granting one month
time for specific performance of agreement of sale, while directing the plaintiff
to deposit the balance of sale consideration of Rs.25,000/- with interest at
24% per annum from 14-4-1986 till the date of filing of the suit within 20 days
from the date of the judgment.

8. Aggrieved by the said judgment and decree of the trial Court in
decreeing the suit, the defendants have preferred the present appeal.

9. Heard Sri Singam Srinivasa Rao, learned counsel for the appellants/
defendants and Sri P.V.A. Padmanabham, learned counsel for the
respondents.

10. The learned counsel for appellants would contend that the judgment
and decree passed by the trial Court is contrary to law. He would further
contend that the trial Court erred in observing that time is not an essence of
contract. He would further contend that the trial Court ought to have
dismissed the suit as barred by limitation and that the appeal may be allowed
by setting aside the judgment and decree passed by the learned trial Judge.

11. Per contra, the learned counsel for respondents would contend that
on appreciation of the entire evidence on record, the learned trial Judge rightly
decreed the suit and there is no need to interfere with the finding given by the
learned trial Judge and that the appeal may be dismissed by confirming the
judgment and decree passed by the learned trial Judge.

12. Now, the points for determination in the present appeal are:

(1) Whether the alleged receipt dated 14-4-1986 is true and valid ?
(2) Whether the suit is barred by limitation ?
(3) Whether the 1st respondent/plaintiff is ready and willing to
perform her part of the contract ?
(4) Whether the trial Court is justified in decreeing the suit by
granting the relief of specific performance of agreement of sale ?
and
(5) To what extent ?

13. Point No.1: Whether the alleged receipt dated 14-4-1986 is true and
valid ?
The undisputed facts of both the parties are that the 1st defendant is the
wife of 2nd defendant and the 1st defendant is the owner of plaint schedule
property and she offered the same for consideration of Rs.1,85,000/- to the
plaintiff and the defendants 1 and 2 received a sum of Rs.65,000/- from the
plaintiff as part of the sale consideration on 07-5-1985 and that the defendants
1 and 2 received a sum of Rs.50,000/- from the plaintiff as part of the sale
consideration on 07-9-1985 and the 1st defendant executed an agreement of
sale, which is attested by the 2nd defendant. Both the parties also further
admit that the 1st defendant agreed to receive the balance of sale
consideration by 07-01-1986 and to execute a regular registered sale deed
and while the things stood thus, the original agreement of sale was misplaced
by the plaintiff and the defendants 1 and 2 agreed to execute a fresh
agreement of sale imposing a condition that they will mention in the fresh
agreement that a sum of Rs.50,000/- was received under earlier agreement.
It is also further admitted by both the parties that the defendants 1 and 2
received another sum of Rs.35,000/- from the plaintiff and the 1st defendant
executed a fresh agreement of sale, attested by the 2nd defendant on
01-3-1986 and the 2nd defendant, on behalf of the 1st defendant, also received
another sum of Rs.5,000/- from the plaintiff and endorsed the same on the
reverse of the said agreement. The admitted facts of both the parties are that
on 10-01-1986, the 1st defendant also received another sum of Rs.40,000/-
and executed another agreement of sale attested by the 2 nd defendant in
favour of the plaintiff and as per the agreement, the balance of sale
consideration has to be paid on or before 31-3-1986 and in default, the plaintiff
has to pay interest at the rate of 24% per annum on the balance amount.
The contention of plaintiff is that she paid an amount of Rs.30,000/- on
14-4-1986 and the 1st defendant also attested the receipt to that extent.
The defendants 1 and 2 are disputing the said payment. The 1 st defendant
severely contended that she did not pass any receipt and she also did not
receive any amount of Rs.30,000/- under the alleged receipt Ex.A-5. The said
suggestion is denied by P.W.1.

14. The contention of plaintiff is that in the month of April, 1986, she paid
an amount of Rs.30,000/- to the 1st defendant. The 1st defendant strongly
disputed the said payment in the written statement itself and she also denied
about the passing of Ex.A-5 receipt in the written statement itself. To prove
the said alleged payment, the plaintiff relied on the receipt under Ex.A-5,
alleged to have been issued by the 1st defendant. The plaintiff in her evidence
as P.W.1 stated that in the month of April, 1986, she paid an amount of
Rs.30,000/- to the 1st defendant and the 1st defendant executed a receipt
acknowledging the payment of Rs.30,000/- by her. She further deposed that
Ex.A-5 is the receipt dated 14-4-1986 issued by the 1st defendant and the
2nd defendant scribed Ex.A-5 and one Kambhampati Nagaiah and Prasanna
Kumar attested Ex.A-5 receipt and the 1st defendant signed on Ex.A-5 in the
presence of attestors and scribe. It was suggested to P.W.1 in his evidence in
cross-examination by the learned counsel for defendants that the
1st defendant did not receive any amount under the alleged Ex.A-5 and she
did not pass any receipt under Ex.A-5.

15. As seen from Ex.A-5 original receipt, the 1st attestor is Kambhampati
Nagaiah and the 2nd attestor is said to have been one Prasanna Kumar.
The said Prasanna Kumar, alleged 2nd attestor, is examined as P.W.3.
He deposed in his evidence that the plaintiff paid an amount of Rs.30,000/- to
the 1st defendant in the year 1986 towards balance of sale consideration in the
presence of himself and one Muthyam, and the said receipt is scribed by the
2nd defendant. Admittedly, P.W.3 did not depose in his evidence about the
month and date of alleged part payment of Rs.30,000/- paid by the plaintiff to
the 1st defendant. I have perused the original of alleged receipt, which is said
to have been marked as Ex.A-5 before the trial Court. Ex.A-5 is the alleged
receipt. One Muthyam is not an attestor to Ex.A-5 receipt. Even according to
own version of the plaintiff, one Kambhampati Nagaiah is the 1st attestor and
P.W.3 is another attestor to Ex.A-5 alleged receipt. Therefore, the evidence of
P.W.1 is not at all corroborated by the evidence of P.W.3, with regard to the
alleged presence of attestors under Ex.A-5 receipt. Furthermore, the plaintiff
pleaded in the plaint itself that the defendants 1 and 2 received a sum of
Rs.30,000/- from the plaintiff towards the balance of sale consideration and
the 1st defendant passed written hand letters, which are scribed by the
2nd defendant on 14-4-1986 and the defendants 1 and 2 received the balance
of sale consideration and have written hand letters, which are not available
and as such, there is no written evidence at present.

16. As stated supra, the evidence of P.W.1 is not at all corroborated by
the evidence of P.W.3 with regard to the presence of another alleged attestor.
Both parties did not take any steps to compare the signature on Ex.A-5 along
with the admitted documents Exs.A-2 and A-4 by sending the same to
a handwriting expert. Under the law, it is always open for the Court to
compare the signature on the disputed document with the admitted signatures
of the defendant and witnesses (attestors). The rule of prudence and caution
requires that, in the first place, expert opinion should be obtained for
assistance. If such an opinion is not available, the Court can compare
disputed writings and signatures and come to its own conclusion.

17. Section 73 of the Indian Evidence Act, 1872, expressly enables the
Court to compare disputed writings and signatures with the admitted
signatures to ascertain whether the signature of the defendant is that of
a person by whom it purports to have signed on the document. Both parties
have not opted for comparison of signatures by a handwriting expert,
this Court views that when a party who relies on disputed document
expresses an apprehension that the document of recent origin or the farthest
document shall not be suitable for making the comparison, the admitted or
proved contemporary signatures alone should be used for such comparison.
In the case on hand, Exs.A-2 and A-4 contain the signatures of 1st defendant,
those documents are not disputed by both the parties. Thus, it is clear that
if a person who relied on disputed signature believes admitted signature is not
disguised, it is good enough for comparison. The trial Court has not taken
pains to compare the signatures. There is no express provision in the Code of
Civil Procedure, which takes away from an appellate Court, in cases in which
that Code provides for an appeal from the original decree, the power to review
and evaluate the evidence of witnesses independently of the conclusion
reached by the trial Court regarding the credibility of their evidence.

18. The Apex Court in Murari Lal v. State of M.P.1 observed that the
duty of the Court to compare the writings and come to its conclusion cannot
be avoided by recourse to the statement that the Court is not an expert. It is
thus clear from the above observation of the Apex Court that under Section 73
of the Indian Evidence Act, the Court can compare disputed and admitted
signatures to come to its own conclusion. However, the provisions of Section
73 of the Indian Evidence Act have been interpreted by various Courts as to
how the signatures or hand writings are to be compared when there is no
assistance from a handwriting expert.

19. I have compared the signature of 1st defendant on Exs.A-2 and A-4
with that of Ex.A-5. On the face of it, disparities were evident between the
admitted signatures and disputed ones. Furthermore, as stated supra, as per
the evidence of P.W.1, one Kambhampati Nagaiah and P.W.3 attested Ex.A-5
receipt, but as per the evidence of P.W.3, one Muthyam and himself attested
Ex.A-5 receipt. On considering the evidence of P.W.3 and P.W.1 and in view
of my aforesaid reasons by comparing the signatures of 1st defendant on
Ex.A-5 with that of Exs.A-2 and A-4, I am of the considered view that the
plaintiff has not made any payment of Rs.30,000/- under Ex.A-5 receipt.

1
AIR 1980 SC 531
Therefore, Ex.A-5 is not at all true and genuine document. Accordingly, point
No.1 is answered against the plaintiff.

20. Point No.2:- Whether the suit is barred by limitation ?
In the appeal grounds, the appellants pleaded that the suit is hopelessly
barred by limitation. The relief claimed by the plaintiff in the plaint itself to
grant specific performance of contract dated 07-9-1985 as acknowledged by
subsequent contracts dated 02-11-1985 (Ex.A-2) and 18-01-1986 (Ex.A-4)
executed by the 1st defendant in favour of the plaintiff. The last agreement in
between both the parties is dated 18-01-1986 i.e. Ex.A-4. The contention of
plaintiff from the beginning itself in the plaint is that she is always ready and
willing to perform her part of the contract, but the 1st defendant did not come
forward to execute a registered sale deed in favour of the plaintiff and to
receive the balance of sale consideration. In the case on hand, Ex.A-6 notice
is said to have been issued by the 1st defendant to the plaintiff. As per the
recitals of Ex.A-6 notice, the 1st defendant demanded the plaintiff to pay the
balance of sale consideration with interest within 30 days from the date of
receipt of Ex.A-6 notice. The said Ex.A-6 notice is issued by the 1st defendant
on 30-7-1990. The plaintiff also issued a reply notice, dated 06-8-1990, to the
1st defendant by expressing her readiness and willingness to pay the balance
of sale consideration and to obtain a regular registered sale deed. As seen
from the original plaint, the suit is filed in the same month of August, 1990 i.e.
on 30-8-1990 before the trial Court.

21. The learned counsel for plaintiff relied on a judgment of the Apex
Court in the case of Usha Devi v. Ram Kumar Singh2, wherein it is held as
follows:
"8. We need not enter into the other issues as we are convinced that the suit
was barred by limitation. The limitation under Article 54 of the Limitation Act,
1963 for instituting a suit for specific performance of a contract would be three
years from the date fixed for the performance, or, if no such date is fixed,

2
2024(5) ALT 24
when the plaintiff has notice that performance is refused. Article 54 of the
Limitation Act, 1963 is reproduced hereunder:
"54. For specific Three years The date fixed for the performance, or,
performance if no such date is fixed, when the plaintiff
of a contract has notice that performance is refused."

Admittedly, in the case on hand, the 1st defendant issued Ex.A-6 notice to
the plaintiff on 30-7-1990 by expressing her intention to receive balance of
sale consideration and to execute a regular registered sale deed and
demanded the plaintiff to pay the balance of sale consideration with interest of
24% per annum within 30 days from the date of receipt of Ex.A-6 notice, dated
30-7-1990. Admittedly, within 7 days i.e. on 06-8-1990, the plaintiff issued
a reply notice by informing that she is ready and willing to pay the balance of
sale consideration to the 1st defendant. As noticed supra, in the same month
of August, 1990, the plaintiff instituted the present suit before the trial Court
i.e. on 30-8-1990. Therefore, the suit is filed within a period of limitation.
In the evidence of 1st defendant also, she admits that she is ready and willing
to execute a regular registered sale deed on receipt of balance of sale
consideration of Rs.55,000/- within time. Furthermore, another admission
made by her in her evidence is that she has no objection to execute
a registered sale deed as on that date for suit schedule property, if the plaintiff
pays the balance of sale consideration of Rs.55,000/- with interest at 24% per
annum. It clearly goes to show that still the 1st defendant is having intention to
execute a regular registered sale deed, provided if the plaintiff paid the
balance of sale consideration of Rs.55,000/- with interest at 24% per annum.
For the aforesaid reasons, I am of the considered view that the suit is filed
within a period of limitation. Accordingly, point No.2 is answered in favour of
the plaintiff.

22. Point No.3:- Whether the plaintiff is ready and willing to perform her
part of the contract ?
The plaintiff claimed the relief of specific performance of contract of sale
Ex.A-1, dated 07-9-1985, which is acknowledged by subsequent contracts
dated 02-11-1985 (Ex.A-2) and 18-01-1986 (Ex.A-4) executed by the
1st defendant in favour of the plaintiff. Though the plaintiff relied on three
contracts, the suit claim is based on final contract dated 18-01-1986 i.e.
Ex.A-4.

23. As stated supra, the suit is based on Ex.A-4 agreement of sale,
said to have been executed by the 1st defendant in favour of the plaintiff.
The recitals of Ex.A-4 goes to show that from out of an amount of
Rs.1,85,000/-, the plaintiff paid a total sum of Rs.1,30,000/- to the
1st defendant and the plaintiff promised to repay the remaining balance of sale
consideration of Rs.55,000/- on or before 31-3-1986, otherwise she has to
repay the same with interest at 24% per annum. There is no whisper in
Ex.A-4 that time is an essence of the contract. Ex.A-6 is a legal notice said to
have been issued by the 1st defendant. In Ex.A-6 legal notice, the
1st defendant demanded the plaintiff to pay the balance amount with interest
within 30 days from the date of receipt of Ex.A-6 legal notice, dated
30-7-1990. In her evidence in cross-examination, D.W.1 admits that in the
written statement, she reiterated that she is ready and willing to register
a regular registered sale deed in favour of Prabhudas on receipt of balance of
sale consideration of Rs.55,000/- within time. The legal position in this regard
is no more res integra. The law is well settled that grant of decree of specific
performance of agreement of sale is not an automatic and it is a discretionary
relief and the same is required to be exercised judiciously, sound and
reasonably. It is relevant to say that Exs.A-2 and A-4 agreements are not at
all disputed by the 1st defendant. Ex.A-3 part payment endorsement is also
not at all disputed by the 1st defendant. In the case on hand, admittedly the
plaint schedule property is immovable property.

24. The case of the plaintiff from the beginning itself is that she has
obtained an agreement of sale for the suit schedule property on 07-9-1985
and the said agreement was lost and she requested the 1st defendant to
execute another contract dated 02-11-1985 and that the 1st defendant
executed another contract dated 02-11-1985 under Ex.A-2. It is the admitted
case of the plaintiff that the 1st defendant received a sum of Rs.40,000/- from
the plaintiff on 18-01-1986 and executed an agreement of sale, which was
attested by the 2nd defendant. The recitals in Ex.A-4 go to show that the
plaintiff has to pay the remaining balance of sale consideration on or before
31-3-1986, failing which the plaintiff has to pay the remaining balance of sale
consideration with interest at 24% per annum. Admittedly, no notice is issued
by the plaintiff on or before 31-3-1986 by expressing that she is ready and
willing to pay the balance of sale consideration by 31-3-1986 and the plaintiff
remained silent. Furthermore, within three years from 31-3-1986 also,
no notice is issued by the plaintiff by expressing her readiness and willingness
to pay the remaining balance of sale consideration with interest, as referred in
Ex.A-4 agreement of sale. Furthermore, Ex.A-6 notice goes to show that on
30-7-1990, the 1st defendant gave an opportunity to the plaintiff by issuing
Ex.A-6 notice to pay the balance of sale consideration with interest of 24% per
annum as mentioned in Ex.A-4 agreement of sale. The plaintiff issued a reply
notice, dated 06-8-1990, under Ex.A-7. The fact remains that though there
was a stipulated time to pay the remaining balance of sale consideration by
31-3-1986, the plaintiff remained silent for about more than four years till the
date of receipt of legal notice from the 1st defendant and subsequent to the
receipt of legal notice from the 1st defendant, she issued a reply notice under
Ex.A-7. Ex.A-8 is the rejoinder notice issued to the reply given by the plaintiff.
Later, the plaintiff instituted the present suit for specific performance of
agreement sale.

25. In the plaint, the plaintiff averred that her husband suddenly died due
to heart attack recently and that the plaintiff is shocked and very much sick.
But, as per own admissions of the plaintiff in her evidence, her husband died
in the year 1990. Therefore, the fact remains that from the date of Ex.A-4
agreement of sale dated 18-01-1986 till 1990, the plaintiff remained silent
without moving her little finger to perform her part of the contract,
as mentioned in Ex.A-4 agreement of sale. As stated supra, the final contract
under Ex.A-4 is executed on 18-01-1986 and she was kept quiet till the year
1990 for more than four years without taking any steps for paying the balance
of sale consideration with interest as incorporated in Ex.A-4 agreement of
sale. Having waited more than four years, as a last chance on 30-7-1990, the
1st defendant issued a legal notice to the plaintiff to perform her obligation to
pay the remaining balance of sale consideration with interest at 24% per
annum and to obtain a regular registered sale deed. The plaintiff relied on the
evidence of P.W.2. P.W.2 is one Muthyam. As per the admissions of P.W.2,
he is an attestor to Ex.A-4 agreement. As per his evidence, no talks were
took place for payment of balance amount and registration of sale deed.
P.W.3 is an attestor to Exs.A-3 and A-5. P.W.4 is the scribe of Ex.A-1. There
is no whisper in the plaint by the plaintiff that after Ex.A-4 contract, she made
efforts through P.Ws.2 to 4 to pay the balance of sale consideration with
interest as mentioned in Ex.A-4 agreement of sale. From the beginning
itself, the conduct of the plaintiff is highly suspicious and she is very
much negligent in pursuing the agreement transaction. As per her own
case, she obtained an agreement on 07-9-1985 and subsequently it was lost
and that she requested the 1st defendant to execute another agreement dated
02-11-1985 under Ex.A-2. Again, she obtained another agreement on
18-01-1986 under Ex.A-4 for the self same property. As per own case of the
plaintiff, she obtained three agreements for the same property. In the present
case itself, it was made a mention by the plaintiff in the plaint itself that the
1st defendant received a sum of Rs.30,000/- from the plaintiff towards balance
of sale consideration and the 1st defendant passed a hand letter scribed by
the 2nd defendant on 14-4-1986 and the defendants 1 and 2 received the
balance of sale consideration and the written hand letters given by the 1st
defendant, which are not available and as such, there is no written evidence at
present. The plaint averments itself go to show that the plaintiff is very much
negligent in pursuing the agreement transaction. As stated supra, the alleged
payment under Ex.A-5 is not at all proved by the plaintiff and Ex.A-5 is not a
genuine document.

26. It is well settled that "the question whether relief of specific
performance of a contract for the purchase of immovable property should be
granted or not, always depends on the facts and circumstances of each case
and the Court would not grant such a relief if it gives the plaintiff an unfair
advantage over the defendant".

27. The learned counsel for respondents placed reliance on a judgment
of the Apex Court in Swarnam Ramachandran v. Aravacode Chakungal
Jayapalan3. In the said judgment, it was held by the Apex Court as follows:
"Whether time is of the essence is a question of fact and the real test is the
intention of the parties. In depends upon the facts and circumstances of each
case. In cases where notice is given making time of the essence, it is the
duty of the court to examine the real intention of the party giving such notice
by looking at the facts and circumstances of each case. The intention can be
ascertained from:
(i) the express words used in the contract;
(ii) the nature of the property which forms the subject-matter of the contract;
(iii) the nature of the contract itself; and
(iv) the surrounding circumstances.
The onus to plead and prove that time was of the essence of the
contract is on the person alleging it, thus giving an opportunity to the other
side to adduce rebuttal evidence that time was not of the essence. When the
plaintiff pleads that time was not of the essence and the defendant does not
deny it by evidence, the court is bound to accept the plea of the plaintiff."

28. The learned counsel for appellants placed reliance on a judgment of
the Apex Court in K.S. Vidyanadam v. Vairavan4. The Apex Court held as
follows:

3
(2004) 8 SCC 689
4
(1997) 3 SCC 1
"10. It has been consistently held by the courts in India, following certain early
English decisions, that in the case of agreement of sale relating to immovable
property, time is not of the essence of the contract unless specifically
provided to that effect. The period of limitation prescribed by the Limitation
Act for filing a suit is three years. From these two circumstances, it does not
follow that any and every suit for specific performance of the agreement
(which does not provide specifically that time is of the essence of the
contract) should be decreed provided it is filed within the period of limitation
notwithstanding the time-limits stipulated in the agreement for doing one or
the other thing by one or the other party. That would amount to saying that
the time-limits prescribed by the parties in the agreement have no
significance or value and that they mean nothing. Would it be reasonable to
say that because time is not made the essence of the contract, the time-
limit(s) specified in the agreement have no relevance and can be ignored with
impunity? It would also mean denying the discretion vested in the court by
both Sections 10 and 20. As held by a Constitution Bench of this Court
in Chand Rani v. Kamal Rani [(1993) 1 SCC 519] : (SCC p. 528, para 25)
"... it is clear that in the case of sale of immovable property there is no
presumption as to time being the essence of the contract. Even if it is not of
the essence of the contract, the Court may infer that it is to be performed in a
reasonable time if the conditions are (evident?): (1) from the express terms of
the contract; (2) from the nature of the property; and (3) from the surrounding
circumstances, for example, the object of making the contract."

29. In the case on hand, as stated supra, from 18-01-1986 to 06-8-1990
on which date the plaintiff got issued a reply notice to the 1st defendant, she
remained silent without taking any steps to perform her part of the contract
and did not move her little finger to comply with the terms of agreement of sale
to pay the balance of sale consideration with interest, purchase the stamp
papers and then ask for execution of a regular registered sale deed. At least
she ought to have issued a legal notice by informing the 1st defendant that she
is ready and willing to perform her part of the contract. In first, the
1st defendant issued a legal notice under Ex.A-6 dated 30-7-1990. After
receipt of the same, the plaintiff issued a reply notice to that notice dated
06-8-1990. In the case on hand, it is not a mere delay on the part of the
plaintiff. It is a case of total inaction on the part of the plaintiff, it is a clear
violation of the terms of the contract which require her to pay the balance
amount with interest of 24% per annum as stipulated in the agreement of sale.
Even where the time is not essence of contract, the plaintiff must
perform her part of the contract within a reasonable time and reasonable
time should be determined by looking at all surrounding circumstances
including the express terms of the contract and the nature of the
property.

30. The learned counsel for appellants relied on a judgment of the
composite High Court of Andhra Pradesh in K. Venkatasubbayya v.
K. Venkateswarlu5. In the said case, the composite High Court of Andhra
Pradesh held as follows:
"... ... ... Reliance was placed by Mr. Gangadhara Rao, learned counsel for
the appellant on a judgment of this court in Buchiraju v.Sri Ranga
Satyanarayana, AIR 1967 Andh Pra 69. But, that case was carried in appeal
to the Supreme Court and the Supreme Court by a judgment in Civil Appeal
No. 1076 (N) of 1966 (SC) reversed the decision of this court and held as
follows:-
"The plaintiffs had set up a false case that they had offered on June 4, 1953
to the first defendant the balance of the purchase price due, and they sought
to support that case by leading evidence which was to their knowledge false.
It is true that the trial court and the District Court have held that after June 4,
1953 the plaintiffs were ready and willing to perform their part of the contract
and under the terms of the agreement of sale, time was not of the essence,
but having regard to their conduct the plaintiffs were not entitled to a decree
for specific performance. the question whether in the circumstances of the
case the claim of the plaintiff for specific performance may be decrees being
within the discretion of the trial court and the District Court, the High Court
could not interfere with the exercise of the discretion unless the order was
shown to be arbitrary or patently, erroneous in law.
.......................................................................................................

1971 APLJ 198 = AIR 1971 AP 279 the exercise of discretion (by the trial Court and District Court) against the claim made by the plaintiff was not arbitrary but was reasonable and guided by judicial principles. The High Court could not, sitting in second appeal, interfere with the exercise of jurisdiction merely because the District Court refused relief on specific performance also on the ground of delay."

In this case, the lower appellate court has refused to exercise the discretion in favour of the plaintiff who had set up false plea of payment money. The plaintiff, in my view, was not only disentitled to the discretionary relief on the ground that he has set up a false plea but also on the ground that discloses that he was not ready and willing to perform his part of the contract."

In the case on hand also, the plaintiff sought the relief of specific performance of agreement of sale and the plaintiff came up with a plea in the plaint that she made part payment of Rs.30,000/- under Ex.A-5 to the 1st defendant, but the same is not supported by her own witnesses. The plaintiff relied on the evidence of P.W.3. According to the plaintiff, one Kambhampati Nagaiah and P.W.3 acted as attestors to Ex.A-5 receipt, but as per the evidence of P.W.3, himself and P.W.2 one Muthyam are the attestors to Ex.A-5 receipt. As stated supra, the alleged Ex.A-5 receipt is strongly disputed by the defendants 1 and 2 in the written statement itself and the plaintiff failed to prove Ex.A-5 receipt. Moreover, as stated supra, this Court also compared the signature of 1st defendant on Ex.A-5 alleged receipt with Exs.A-2 and A-4 receipts and found a disparity with naked eye itself. The law is well settled that the plaintiff, who seeks equitable remedy of specific performance, must come to the Court with clean hands.

31. In the case of Gaddipati Divija v. Pathuri Samrajyam6, the Apex Court held as follows:

"33. Before parting with the judgment, we would like to clarify another aspect, i.e., with regard to whether time is of the essence in the sale agreement in the present case or not. In Siddamsetty Infra Projects (P) Ltd. (supra), this Court was dealing with a similar question with respect to a sale agreement for an immovable property, while referring to an earlier judgment in Chand

2023 SCC Online SC 442 Rani v. Kamal Rani [(1993) 1 SCC 519], it was reiterated that in sale of immovable property there is no presumption that time is the essence of the contract, however, the court may infer performance in a reasonable time if the conditions are evident from the express terms of the contract, from the nature of the property, and from the surrounding circumstances."

32. In the case of Shenbagam v. KK Rathinavel7, the Apex Court held as follows:

"41. True enough, generally speaking, time is not of the essence in an agreement for the sale of immoveable property. In deciding whether to grant the remedy of specific performance, specifically in suits relating to sale of immovable property, the courts must be cognizant of the conduct of the parties, the escalation of the price of the suit property, and whether one party will unfairly benefit from the decree. The remedy provided must not cause injustice to a party, specifically when they are not at fault. ... ... ... ."

In the case on hand, the reasons offered by the plaintiff are that she paid substantial amount to the 1st defendant and that the question of readiness and willingness does not arise. In the case on hand, the plaintiff remained silent for a period of more than four years from the date of Ex.A-4 contract till the date of receipt of Ex.A-6 legal notice, dated 30-7-1990, from the 1st defendant. In fact, she did not choose to give any reply notice to the 1st defendant by expressing her readiness and willingness to perform her part of the contract. Furthermore, the plaintiff came up with a false plea that she made part payment of Rs.30,000/- to the 1st defendant under Ex.A-5 alleged receipt, which was disbelieved by this Court, as stated supra.

33. The learned counsel for respondents placed reliance on a judgment of the Apex Court in the case of State of Kerala v. M.A. Mathai8. The ratio laid down in the said case relates to disputes between an employer and employee but not in between a vendor and vendee.

2022 SCC Online SC 71

(2007) 10 SCC 195

34. The learned counsel for respondents placed a reliance on P. Ramasubbamma v. Vijayawalakshmi 9. In the said decision, the Apex Court held as follows:

"9. ... ... ... as such the learned trial court rightly decreed the suit for specific performance of 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."

In the case on hand, the vendor disputed Ex.A-5 part payment, which is not at all proved by the plaintiff. The plaintiff approached the Court with unclean hands and she has taken a divergent plea that she lost her original agreement and she paid the entire sale consideration and the 1st defendant passed a receipt and that the said receipt was also lost. Therefore, the facts and circumstances in the cited decision are different to the instant case.

35. The learned counsel for respondents relied on a 5-Judge Bench judgment of the Apex Court in State of Orissa v. Sudhansu Sekhar Misra10. The Apex Court held as follows:

"12. ... ... ... A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it.

On this topic this is what Earl of Halsbury L.C. said in Quinn v. Leathem [[1901] AC 495] :

"Now before discussing the case of Allen v. Flood, [1898] AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for

(2022) 7 SCC 384

AIR 1968 SC 647 what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all."

The facts in the aforesaid case law relates to the Orissa Superior Judicial Service Officers. In the case on hand, the suit relates to the specific performance of agreement of sale. As states supra, the Constitution Bench of the Apex Court in the case of Chand Rani v. Kamal Rani [(1993) 1 SCC 519] held that even if time is not an essence of the contract, the Court has to infer that it has to be performed within a reasonable time.

36. The learned counsel for appellants placed reliance on U.N. Krishna Murthy v. A.M. Krishna Murthy11. The Apex Court held as follows:

"42. In Saradamani Kandappan v. S. Rajalakshmi [(2011) 12 SCC 18], this Court reiterated that:

42.1. ............................

42.2 .............................

42.3 Every suit for Specific Performance need not be decreed merely because it is filed within the period of limitation, by ignoring time limits stipulated in the agreement. The courts will also frown upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait for one or two years to file a suit and obtain Specific Performance. The three year period is intended to assist the purchaser in special cases, as for example where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser."

In the case on hand, admittedly, as per the case of both the parties, the possession is with the 1st defendant and out of total sale consideration of Rs.1,85,000/-, an amount of Rs.1,30,000/- was paid by the plaintiff on instalments and later she kept quiet for a period of more than four years till the date of receipt of legal notice from the 1st defendant and during the pendency

(2023) 11 SCC 775 of suit also, the plaintiff has not deposited the balance of sale consideration with interest as stipulated in the contract.

37. In the case of C. Panduranga Rao v. V. Shyamala Rao 12 , a Division Bench of the composite High Court of Andhra Pradesh held as follows:

"8. By now it is well settled that in a suit for specific performance the plaintiff should plead and prove that he was always ready and willing to perform his part of the contract. Sec. 46(16?) of the Indian Contract Act also ordains the same. Mere taking of a plea in the plaint is not sufficient, the plaintiff should prove with cogent evidence his readiness and willingness to perform his part of the contract at all material times i.e., from the date of the contract till the date of the suit". The evidence on record negates such a plea.

9. The relief of specific performance is an equitable relief and it is within the discretion of the Court. Of Course, the discretion should be exercised on sound principles of law. The party is not entitled to the relief of specific performance as a matter of course even though the execution of the suit agreement of sale is either admitted or proved. He must, therefore, show the equity in himself before seeking the equitable relief of specific performance. The appellant who stated the he paid several amounts in all making an amount of Rs. 43,000/- at one breadth and Rs. 52,000/- at another breadth at two different stages, cannot be said to have approached the Court with the clean hands, therefore he is not entitled to the equitable relief of specific performance. For the above reasons it is not expedient interfere with the concurrent finding of fact that the appellant was never ready and willing to perform his part of the contract as concluded by the trial Court as well as the learned single judge of this Court. Sri V. Syamala Rao executed a registered sale deed in favour of T. Chandra Mouli, who pleaded in his suit that he is a bona fide purchaser for a valid consideration without the knowledge of the suit agreement of sale in favour of the appellant. When it is concluded against the appellant that he was not entitled to an equitable relief of specific performance, the registered sale deed executed by the 1st respondent in favour of the 2nd respondent, therefore, gets automatically strengthened. The trial Court as well as the appellate Court thus decreed the suit of the

1999 (2) APLJ 166 2nd respondent O.S. No. 16/83. We see no compelling reasons to differ with the said findings which are well founded."

38. In the present case, in the plaint itself, it was recited that the defendants did not express their readiness and willingness to perform their part of contract except insisting upon undue excess payment for which they are not entitled. As seen from the plaint averments, there is no specific recital in the plaint itself that though she is ready and willing to perform her part of the contract, the 1st defendant did not receive the balance of sale consideration and also did not came forward to execute a regular registered sale deed. As stated supra, the recitals of Ex.A-4 goes to show that the plaintiff has to pay the balance of sale consideration on or before 31-3-1986, otherwise she has to pay the balance of sale consideration with interest of 24% per annum. The fact remains that the plaintiff remained silent from the date of Ex.A-4 i.e. from 18-01-1986 onwards till the date of receipt of Ex.A-6 legal notice i.e. in the month of July, 1990. The plaintiff remained silent without taking any steps for a period of approximately more than four years from the date of execution of Ex.A-4 agreement of sale. The fact remains that the plaintiff has to take steps to perform her part of the contract by 31-3-1986. As stated supra, the fact remains that she remained silent for a period of more than four years until the receipt of legal notice issued by the 1st defendant. As noticed supra, the plaintiff kept quiet for a period of more than four years without taking any steps to perform her part of the contract for which she was expected to purchase stamp papers and tender the balance of sale consideration and call upon the defendants to execute a regular registered sale deed and deliver possession of the property. But, the plaintiff remained silent for more than 4½ years for the reasons best known to her.

39. It was well settled that in deciding whether to grant remedy of specific performance specifically in a suit relating to sale of immovable property, the Court must be cognizant of the conduct of the parties.

40. It is well settled that for the relief of specific performance, the plaintiff has to prove that all alone and till the final decision of the suit, she was ready and willing to perform her part of the contract, it is the bounden duty on the plaintiff to prove her readiness and willingness by adducing evidence, the crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in the plaint of readiness and willingness would not suffice.

41. Admittedly, in the case on hand, the plaintiff failed to discharge her duty to prove her readiness as well as willingness to perform her part of the contract by adducing cogent evidence. As stated supra, in the plaint also, there is no specific pleading by the plaintiff that though she is ready and willing to perform her part of the contract, the 1st defendant did not come forward to receive balance of sale consideration and to execute a regular registered sale deed. It is also well settled that the remedy provided must not cause injustice to a party specifically when they are not at fault. In the case on hand, the plaintiff failed to prove her readiness and willingness to perform her part of the contract right from the date of contract i.e. from 18-01-1986, she is ready to perform her part of the contract, but the 1st defendant had not come forward to discharge her part of the contract. As stated supra, there are so many laches on the part of the plaintiff in performing her part of the contract and the defendants 1 and 2 are not at fault. Therefore, the plaintiff failed to prove her readiness and willingness to perform her part of the contract by adducing oral evidence on record. Accordingly, this point is answered in favour of the appellants/defendant and against the respondent/plaintiff.

42. Point No.4: Whether the trial Court is justified in decreeing the suit by granting the relief of specific performance of agreement of sale ?

In view of my above discussion on points 1 to 3, the plaintiff is not entitled to the relief of specific performance of agreement of sale. In the present case, the plaintiff has sought the alternative relief of refund of advance amount, but the trial Court, without considering the oral and documentary evidence on record in a proper manner, decreed the suit and therefore, the trial Court is not at all justified in decreeing the suit for granting the relief of specific performance of agreement of sale. Therefore, the judgment and decree passed by the trial Court in decreeing the suit for specific performance of agreement of sale is liable to be set aside, but the respondents 2 to 6 i.e. legal representatives of the plaintiff are entitled to the alternative relief of refund of advance amount with interest at 12% per annum from the date of Ex.A-4 i.e. 18-01-1986 till the date of payment by the 1st defendant/ 1st appellant. Accordingly, the point is answered.

43. Point No.5: To what extent ?

In the result, the appeal is allowed by setting the judgment and decree passed by the trial Court. But, the respondents 2 to 6 i.e. legal representatives of the plaintiff are entitled to the alternative relief of refund of advance amount of Rs.1,30,000/- (Rupees one lakh and thirty thousand only) with interest at 12% per annum from the date of Ex.A-4 agreement i.e. from 18-01-1986 till the date of payment by the 1st defendant/1st appellant. Pending applications, if any, shall stand closed. Each party do bear their own costs in the appeal.

VENUTHURUMALLI GOPALA KRISHNA RAO,J