Telangana High Court

B Udaya Bhasker Rao vs Mettu Yadi Reddi on 21 May, 2025

Author: P.Sam Koshy

Bench: P.Sam Koshy

                                       Page 1 of 9



            THE HONOURABLE SRI JUSTICE P.SAM KOSHY
                                         AND
     THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

                        Appeal Suit No.208 of 2013

JUDGMENT :

(per the Hon'ble Sri Justice P.SAM KOSHY)

The instant appeal is filed by the appellant / plaintiff under

Section 96 of the Civil Procedure Code, 1908 assailing the Judgment

and Decree dated 21.11.2012 in O.S.No.471 of 2006 passed by the III

Additional District and Sessions Judge, (Fast Track Court), Ranga

Reddy District, at L.B. Nagar (for short, 'the impugned Judgment').

2. Heard Mr.V. Hari Haran, learned counsel for the appellant /

plaintiff and Mr. Janardhan Reddy Kotha, learned counsel for the

respondents / defendants.

3. Vide the impugned judgment, the Trial Court dismissed the

above suit, viz., O.S.No.471 of 2008, which was filed by the appellant

/ plaintiff under Section 26 read with Order VII Rules 1 and 2 of Civil

Procedure Code, 1908, seeking for specific performance of an

agreement of sale dated 10.07.2005 against the respondents /

defendants in respect of the suit schedule property situated in Survey

Nos.197, 198 and 199 of Yadarpalli Village total admeasuring

Acs.17.18 gts.

4. The brief facts of the care are that, the respondent / defendant

Nos.1 and 2 have offered to sell their lands to the appellant / plaintiff

herein under a registered Agreement of Sale dated 10.07.2005 for a

total sale consideration of Rs.78,61,225/-, i.e., Rs.4,50,500/- per acre.

The appellant / plaintiff has paid a sum of Rs.1 lakh as advance to the

respondents / defendants, and the balance sale consideration was to

be paid within twelve (12) months so as to enable the respondents /

defendants to register the sale deed in favour of the appellant /

plaintiff. In the meantime, the appellant / defendant had also paid a

sum of Rs.18,02,000/- to respondent / defendant No.3, and also a

sum of Rs.10 lakhs more to the respondent / defendant No.1.

However, the respondents / defendants failed to register the land in

favour of the appellant / plaintiff.

5. Learned counsel for the appellant / plaintiff contended that the

appellant / plaintiff was always ready and willing to perform its part of

the contract, but the respondents / defendants postponed the same

on some pretext or the other. Even on the issuance of a legal notice

also the respondents / defendants did not show keen interest in

registered the sale deed which led to filing of the above suit for specific

performance of the Agreement of Sale dated 10.07.2005 seeking for

relief of specific performance of the said agreement.

6. On the contrary, learned counsel for the respondents contended

that because the respondent / defendant No.1 had to perform the

marriage of his daughter which was fixed on 21.05.2006, and as the

appellant / plaintiff had not come forward to pay the balance sale

consideration, he had borrowed money from other person and

performed the marriage of his daughter. He further submitted that

had appellant / plaintiff discharged his part of the contract and paid

the balance amount, the respondent / defendant No.1 would have

performed the marriage of his daughter comfortably. But the

appellant / plaintiff failed to do that which led to the oral cancellation

of the agreement of sale.

7. In support of his contentions, learned counsel for the appellant /

plaintiff relied on the following decision of the Hon'ble Supreme Court

in the case of P. Daivasigamani vs. S. Sambandan 1 , wherein a

learned Division Bench held as under, viz.,

"... ... It is sufficient for the respondents to establish that they had the capacity to pay the sale consideration. It is not necessary that they should always carry the money with them from the date of the suit till the date of the decree. ... ..."

8. Having gone through the pleadings and averments made by the

learned counsel on both sides, some of the admitted fact that is

reflected is that so far as the payment made by the appellant /

1 2023 (1) A.L.D. 49 (SC)

plaintiff to the defendants is concerned, as against the money received

by the respondents / defendants they have already executed and

parted with Acs.4.00 gts. by way of a registered sale deed bearing

Document No.7533 of 2005 executed on 11.11.2005. This fact

substantiates the contention of the learned counsel for the

respondents / defendants that the respondents / defendants have got

executed a sale deed to the extent of the money paid by the appellant

/ plaintiff to the respondents / defendants as was agreed between

them in the alleged agreement of sale.

9. It would be relevant at this juncture to also take note of the

finding given by the Trial Court insofar as the evidence of PW.1

(plaintiff himself) wherein he admitted that there was no material

available with him to prove that he had sufficient means to discharge

his part of the contract. The plaintiff (as PW.1), in his cross-

examination, had also admitted the fact that had had got Acs.4.00 of

land registered in his name through the registered sale deed against

the amount of money that the appellant / plaintiff had paid to the

respondents / defendants. Further, a perusal of Ex.A.1 (Agreement of

Sale) also reflects that it was agreed upon between the parties to

paid by the appellant / plaintiff. Further, in addition to the aforesaid

finding, the contention of appellant / plaintiff that upon payment of

the advance amount, the respondents / defendants had in fact parted

with the possession of the suit schedule property and it was in

possession of the appellant / plaintiff, could not be substantiated by

cogent proof and evidence. Further, it was also nowhere reflected in

the documents that the appellant / plaintiff had been given possession

of entire portion of the land that was agreed upon between the parties.

10. In support of his contentions, the learned counsel for the

respondents / defendants relied on the following decisions, viz.,

Hemanta Mondal vs. Ganesh Chandra Naskar 2, Killamsetty Eswari

vs. Pedada Tulasi Rao 3, J.P. Builders vs. A. Ramadas Rao 4, and

R. Shama Naik vs. G. Srinivasiah 5.

11. In Hemanta Mondal (2 supra), the Hon'ble Supreme Court has

held as under, viz.,

"16. In the present case, it appears that possession was not given to the plaintiff at the time of execution of the agreement, nor the area of land agreed to be sold was clear, as such, it cannot be said that the plaintiff has done substantial acts or suffered losses due to expenditure in constructions, etc., in consequence of a contract capable of specific performance. The direction given by the High Court in the impugned order shows that the measurements of land actually agreed to be sold, are not final."

2 (2016) 1 SCC 567 3 (2017) 3 A.L.T. 550 (D.B.) 4 (2011) 1 SCC 429 5 2024 SCC OnLine SC 3586

12. In the case of Killamsetty Eswari (3 supra), a learned Division

Bench of this High Court held at paragraphs Nos.21, 22 and 24 as

under, viz.,

"21. Moreover, as rightly observed by the Court below, the plaintiffs in a suit for specific performance, are obliged to aver and prove that they had performed or had always been willing to perform the essential terms of contract which are to be performed by them. Unfortunately, the plaintiffs, though averred their readiness and willingness to perform the essential terms of the contract, did not produce any proof to show their readiness. As pointed out earlier, the plaintiffs filed 16 documents. Ex.A.1 was the agreement of sale. Ex.A.1 and Ex.A.3 are the legal notice and reply notice respectively. Ex.A.4 was the final decree in a suit for partition between the defendants and their father. Exs.5 and 6 were the postal receipts and acknowledgment cards. Exs.A.7 and A.8 were the certified copies of the orders passed by the Rent Controller in two eviction petitions against the tenants. Exs.A.9 to A.11 are the certified copies of the orders passed in the appeals filed against the orders of eviction passed by the Rent Controller.

22. In other words, there was not a scrap of paper produced by the plaintiffs to show their readiness. We are conscious of the fact that it is neither necessary for the plaintiffs nor required of them to bring jingling coins into the Court and establish their readiness. The other requirements of Section 16(c) of the Act are two-fold. The plaintiffs should establish both willingness as well as readiness. While willingness is an animus of mind which can be established only through oral evidence, readiness is a factor that should be established by something more than more oral evidence. Unfortunately, the plaintiffs who pleaded readiness and willingness, failed to prove their readiness through any piece of paper or document.

.........

24. Once it is found that readiness on the part of the plaintiffs had not been established, the plaintiffs would not be entitled to a decree for specific performance."

13. In the case of J.P. Builders (4 supra), the Hon'ble Supreme

Court held at paragraph Nos.25 to 27 as under, viz.,

"25. Section 16(c) of the Specific Relief Act, 1963 mandates "readiness and willingness" on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is on the plaintiff.

26. It has been rightly considered by this Court in R.C. Chandiok vs. Chuni Lal Sabharwal 6 that "readiness and willingness" cannot be treated as a straitjacket formula. This has to be determined from the entirely of the facts and circumstances relevant to the intention and conduct of the party concerned.

27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non- compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined / ascertained from the conduct of the parties."

14. Similarly, in the case of R. Shama Naik (5 supra), a Division

Bench of the Hon'ble Supreme Court held at paragraph Nos.10 to 14,

as under, viz.,

6 (1970) 3 SCC 140

"10. The law is well settled. The plaintiff is obliged not only to make specific statement and averments in the plaint but is also obliged to adduce necessary oral and documentary evidence to show the availability of funds to make payment in terms of the contract in time.

11. There is a fine distinction between readiness and willingness to perform the contract. Both the ingredients are necessary for the relief of specific performance.

12. While readiness means the capacity of the plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the plaintiff.

13. The High Court in first appeal upon appreciation of the evidence on record both oral and documentary has arrived at the conclusion that the plaintiff has failed to establish that the was always ready and willing to perform his part of the contract.

14. This being a finding of fact and cannot be termed as perverse, there is no good reason for us to interfere with the impugned judgment."

15. Having considered the legal position as it stands in the preceding

paragraphs and also from the aforesaid judicial precedents, and the

factual matrix of the case narrated above, what is also evident is the

fact that the appellant / plaintiff could not even produce his bank

statement to show that at the relevant point of time he had sufficient

means available with him to pay the balance of sale consideration to

the respondents / defendants for completion of the contract.

16. For all the aforesaid reasons and judicial precedents, we are of

the considered opinion that the finding arrived at by the Trial Court

cannot be found fault with nor can it be in any manner said to be

perverse or contrary to the evidence or law. The instant appeal, being