Telangana High Court

Pericherla Praveena vs Smt. D. Vijayalakshmi on 5 July, 2024

     THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI

                         A.S.No.8 OF 2024
JUDGMENT:

Aggrieved by the judgment and decree dated 06.02.2023

in O.S.No.522 of 2022 (hereinafter will be referred as 'impugned

judgment') passed by the learned II Additional District Judge,

Medchal - Malkajgiri at Medchal (hereinafter will be referred as

'trial Court'), the plaintiff No.2 preferred the present appeal to

set aside the impugned judgment.

2. For the sake of convenience, the parties hereinafter are

referred to as they are arrayed before the trial Court.

3. The brief facts of the case, which necessitated the

appellant to file the present appeal is that, the plaintiff Nos.1

and 2 filed suit for specific performance in respect of suit

schedule property against the defendant Nos.1 and 2. The

averments of the plaint in brief are as under:

a) The Defendant Nos.1 and 2 are the absolute owners and

peaceful possessors of Land Total admeasuring Acres 20.1/2

Guntas in Survey Nos. 149/A1, 149/A2, 149/8, 151/A1,

151/Α2, 152/A3 and 152/A4, situated at Athvelli Village,

Medchal Mandal, Ranga Reddy District by virtue of registered

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sale deed Document No's. 3883/86, 3733/86, 3884/86,

3670/86, 3676/86, 3732/86, 5373/90, registered in the office

of Sub-Registrar, Medchal, R. R. Dist and Revenue Patta Pass

Book No's 258 and 310.

b) The Defendants due to personal necessities of money

offered to sell the land admeasuring Acres 17.18 Guntas i.e.,

suit schedule property out of land admeasuring Acres 20.1/2

Guntas in Survey Nos. 149/A1, 149/Α2, 149/B, 151/A1,

151/A2, 152/A3 and 152/A4, situated at Athvelli Village,

Medchal Mandal, Ranga Reddy District to the plaintiffs for total

sale consideration of an amount of Rs.35,00,000/- and the

plaintiffs agreed to purchase the same.

c) In pursuance of the above said offer, the plaintiffs paid an

amount of Rs.2,00,000/- towards advance sale consideration to

the defendants on 01.12.1998 and entered into an Agreement of

Sale, and it was mutually agreed to pay the balance sale

consideration of Rs.33,00,000/- and shall get execute registered

sale deed. As per the demand and request of the defendants, the

plaintiffs paid Rs.26,00,000/- including the amount of

Rs.2,00,000/- paid at the time of entering into agreement of sale

on 01.12.1998 i.e., Rs.2,00,000/-on 29.10.2001, Rs.2,00,000/-

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on 24.10.2004, Rs.3,00,000/- on 22.10.2007, Rs.2,00,000/- on

15.10.2010, Rs.7,00,000/- on 04.10.2013, Rs.4,00,000/-on

27.09.2016 and Rs.4,00,000/-on 25.01.2017 and the

defendants received and passed separate receipts.

d) On 10.04.2019 the plaintiffs went to the defendants'

residence at Secunderabad and requested them to register the

sale deed by receiving the remaining amount of Rs.9,00,000/-

and deliver the possession of the suit schedule property in

pursuance of Agreement of Sale dated 01.12.1998 to the

plaintiffs, but the Defendants completely changed their attitude

and said that they will not register for which the plaintiffs

explained that they paid huge amount for purchasing the suit

schedule property. On that the defendants threatened the

plaintiffs with dire consequences and that the defendants and

their family are the highly influential persons and alienate the

suit schedule property to other intending purchasers at higher

prices. Hence this suit.

4. Despite service of summons, defendant Nos.1 and 2 did

not choose to contest the case, as such, they were set exparte

on 04.07.2019.

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5. On behalf of plaintiffs, the first plaintiff was examined as

PW1 and got marked Exs.A1 to A21, which are agreement of

sale, receipts, encumbrance certificates and sale deeds. The

trial Court, on appreciating the evidence on record, has

dismissed the suit by holding that the plaintiffs failed to show

their readiness and willingness to perform their part of contract

and that the plaintiffs failed to prove their case.

6. Aggrieved by the above said judgment and decree, the

plaintiff No.1 preferred the present appeal.

7. Heard both sides and perused the record including the

grounds of appeal.

8. The learned counsel for the plaintiffs has submitted that

the evidence of PW1 was unchallenged and that the trial Court

failed to appreciate that by virtue of contents of Exs.A1 to A8,

the appellants herein paid entire sale consideration except Rs.9

lakhs. It is further contended that though the plaintiffs were

ready and willing to perform their part of contract, the trial

Court wrongly interpreted the principles of specific performance

relating to readiness and willingness and also the period of

limitation in respect of specific performance of contract. Thus,

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the learned counsel for the plaintiff prayed the Court to remand

back the matter to the trial Court for proper adjudication.

9. Though the defendants were set exparte before the trial

Court, the impugned judgment was passed on merits. As per

the contention of the plaintiffs, time is not the essence of the

contract as there is no specific date prescribed in the agreement

under Ex.A1 for payment of balance sale consideration. As can

be seen from most of the documents i.e., receipts under Exs.A1

to A8, the span between each document is almost more than

three years. The agreement of sale under Ex.A1 was executed

on 01.12.1998 and the last receipt alleged to have been

executed by the defendants was in the year 2017. Though the

agreement was executed in the year 1998 the transaction could

not be completed till 2019 i.e., even after 21 years, which is

appearing to be very strange. Under the circumstances, where

there is no time period specified for the performance of the

contract and the promisor has to perform the contract without

any request by the promisee, in such a case the promisor must

perform the contract within a 'reasonable time' as per Section

46 of the Indian Contract Act. Now the question is what

reasonable time is? A 'reasonable time' is decided after taking

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into account all the circumstances of the case at hand. But

whether that reasonable time should be shorter or longer also

depends on the facts and circumstances of the case. The

learned trial Court relied upon a decision of the Honourable

Supreme Court in Om Prakash Aggarwal v. Raj Kumar Mittal 1

wherein it was observed that the dishonest intention of the

purchaser can be inferred where the purchaser does not contact

the seller for approval of the sale deed and fixing date, time and

place for payment of balance sale consideration and execution

of the registration of the sale deed. Even in the case on hand,

the plaintiffs did not even venture to issue any notice to the

defendants asking them to come forward and register the sale

deed in favour of the plaintiffs or at least to approve the draft

sale deed prepared by them. Thus, by any stretch of

imagination, the time taken by the plaintiffs to pay the

substantial sale consideration amount (i.e., more than 20 years)

cannot be considered as reasonable time.

10. The learned trial Court observed in the impugned

judgment that the plaintiffs have failed to prove their readiness

and willingness to perform their part of contract i.e., payment of

1 2019 Law Suit (Del) 938

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balance sale consideration. It is specifically averred in the

impugned judgment that the period taken by the plaintiffs in

approaching defendant after about 20 years is not a small

period to ignore. It was further observed in the impugned

judgment that no prudent person would receive small

instalments over a period of 15 years rather would sell and

make money because the things in 2019 are different from

1998. The sale consideration in respect of suit schedule

property (Ac.17.18 guntas) that was alleged to have been agreed

upon between the parties was Rs.35 lakhs as per Ex.A1, which

is pertaining to the year 1998. The suit was filed in the year

2019 i.e., after 20 years. It is highly improbable to assess the

value of the said property @ Rs.35 lakhs even after 20 years.

Certainly the price of the said immovable property might have

been escalated in the span of more than 20 years. It is to be

seen that mere extension of time for deposit of balance sale

consideration will not absolve the plaintiffs of obligation to

prove readiness and willingness to perform their part in an

agreement for sale as held by the Honourable Supreme Court in

Ravi Setia v. Madan Lal and others 2. The grant of extension

of time cannot ipso facto be construed as otherwise

2 (2019) 9 SCC 381

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demonstrating readiness and willingness on part of the plaintiff.

The Honourable Supreme Court in P.Shyamala v. Gundlur

Masthan 3 observed that the time for paying sale consideration

cannot be extended as a matter of course. Further, the trial

Court observed in the impugned judgment that the no evidence

is produced by the plaintiffs to show that they have

Rs.9,00,000/- with them. Thus, the contention of the

appellant/plaintiff No.2 that the trial Court wrongly interpreted

the principles of specific performance relating to readiness and

willingness is unsustainable.

11. Except examining the plaintiff No.1 as PW1, the plaintiffs

did not venture to examine any other independent witnesses. It

is pertinent to note that the plaintiffs have not even examined

either the attestors of agreement of sale under Ex.A1 or the

attestors of receipts under Exs.A2 to A8. It is observed that

Ex.A1 was executed on a non judicial stamp paper. As rightly

observed by the trial Court and on perusal of Exs.A2 to A8, the

contents in the said documents were inscribed on white paper

and they were not executed on any stamp paper or any stamp

was fixed at the place of alleged signatures. The cash receipts

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and agreements were not even sent for impounding for

collection of proper stamp fee.

12. It is to be seen that the plaintiff No.1 was examined as

PW1 but she did not prefer any appeal and it is the plaintiff

No.2, who has not come forward to examine herself before the

trial Court, has preferred the present appeal. The plaintiffs

were shown as "household" in the cause title. There is no

explanation on behalf of the plaintiffs as to what is the source of

income for them to pay the sale consideration. The Honourable

Supreme Court in Shenbagam and others v. KK Rathinavel 4

observed that in evaluating whether the plaintiff was ready and

willing to perform his/her obligations under the contract, it is

not only necessary to view whether he/she had the financial

capacity to pay the balance consideration, but also assess

his/her conduct throughout the transaction. Thus, there is an

ambiguity in the version of the plaintiffs with regard to their

financial capacity to pay the sale consideration. Section 20 of

the Specific Relief Act specifically provides that the court's

jurisdiction to grant decree of specific performance is

discretionary but not arbitrary. Discretion must be exercised in

4 2022 SCC Online SC 71

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accordance with the sound and reasonable judicial principles.

It cannot be said that in every case wherever there is a valid

contract or subsisting agreement a decree for specific

performance ought to be passed. In Major General Darshan

Singh (died) by LRs and another v. Brij Bhushan Chaudhary

(died) by LRs 5 the Honourable Supreme Court observed as

under:

"Under Section 20 of the 1963 Act, the grant of a decree for specific performance is always discretionary. The exercise of discretion depends on several factors. One of the factors is the conduct of the plaintiff. The reason is that relief of a decree of specific performance is an equitable relief."

13. In view of the principle laid down in the above said

decision, it is the clear that the granting relief of specific

performance of contract is an equitable and discretionary relief

and accordingly the learned trial Court has exercised its

discretion and passed the judgment by considering the facts

and circumstances.

14. Thus, viewed from any angle, this Court is of the

considered opinion that the trial Court has rightly dismissed

the suit of the plaintiffs and thereby there is no infirmity or

irregularity in the impugned judgment. There are no merits in

5 Civil Appeal No.9360 of 2013 decided on 01.03.2024

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