HONOURABLE SRI JUSTICE L.NARASIMHA REDDY SECOND APPEAL No.568 OF 2011 JUDGMENT: The appellant purchased an extent of Ac.0.49 cents of land in survey No.325/4 of Chirala Village in an auction conducted by the Court. She intended to sell the property in favour of the respondent for a consideration of Rs.7,500/- per cent, totalling to Rs.3,67,500/-. Accordingly, an agreement of sale was executed on 25-11-2004, marked as Ex.A-1, and a sum of Rs.1,50,000/- was paid as advance. It was stipulated that the balance of consideration shall be paid on or before 31-03-2005 and that the respondent shall obtain registered sale deed. Obligation was also placed upon the appellant to get the property measured. 2. The respondent filed O.S. No.46 of 2005 in the Court of the Senior Civil Judge, Chirala for the relief of specific performance of the agreement of sale, dated 25-11-2004. It is stated that though he got issued a notice well in advance requesting the respondent to receive the balance consideration and execute the sale deed, the appellant did not come forward; and got issued a telegraphic notice, marked as Ex.B-1, cancelling the agreement of sale. The trial Court decreed the suit through judgment, dated 27-08-2008. 3. Aggrieved thereby, the appellant filed A.S. No.110 of 2008 in the Court of the VII Additional District Judge, Ongole. The appeal was dismissed on 17-02-2011. Hence, this Second Appeal. 4. Sri V.L.N.G.K. Murthy, learned counsel for the appellant submits that though the respondent stated in his plaint that he is ready and willing to perform his part of contract, in the evidence it was elicited through him that he did not have necessary resources to pay the balance of consideration. Learned counsel submits that as desired by the respondent, the appellant proceeded to the office of the Sub Registrar on 30-03-2005, but the respondent did not turn up. He contends that the readiness and willingness on the part of the plaintiff in a suit for specific performance is an important facet and both the Courts below did not bestow proper attention to that aspect. 5. Sri Ch. Dhanamjay, learned counsel for the respondent, on the other hand, submits that the appellant changed her mind after executing the agreement of sale and did not come forward to execute the sale deed though requests were made orally as well as through notice. He submits that the readiness and willingness on the part of the respondent is evident from the factum of issuing notice, dated 25-03- 2005, marked as Ex.A-3, and absence of any response from the appellant. He further submits that no question of law arises for consideration and that the concurrent findings of fact do not warrant interference. 6. The existence of Ex.A-1 agreement of sale, dated 25-11- 2004, is not in dispute. The respondent filed the suit for the relief of specific performance of the said agreement. The appellant opposed the same mainly by raising plea that the respondent failed to perform his part of the obligation under the agreement and it was accordingly cancelled through the telegraphic notice Ex.B-1. The trial Court framed only one issue for its consideration, viz., whether the respondent is entitled for the relief of specific performance of the agreement of sale. 7. On behalf of the respondent, PWs-1 and 2 were examined and Exs.A-1 to A-13 were filed. On behalf of the appellant, DWs-1 to 6 were examined and Exs.B-1 to B-4 were filed. The suit was decreed and in the appeal, preferred by the appellant herein, the lower appellate Court confirmed the decree. 8. From the recitals of Ex.A-1, one can gather that the time was made essence of the contract. The respondent could have been non- suited, had there been any default on his part to pay the balance of consideration or to offer payment thereof before the stipulated date. The balance of consideration was to be paid by 31-03-2005. It is also essential to note that the appellant was under obligation to get the property measured. Stating that he is ready to pay the amount and that the steps may be taken for execution of the sale deed, the respondent got issued Ex.A-3 on 25-03-2005. If the appellant was ready to execute the sale deed and comply with the other conditions, or that there are any deficiencies on the part of the respondent, suitable reply ought to have been given by the appellant, indicating her stand. It was only on 31-03-2005 that the appellant got issued a telegram to the respondent stating that the agreement is cancelled. The only reason mentioned by her was that the respondent is not ready with the balance of consideration. 9. The approach of the appellant was totally untenable. It appears that she wanted to terminate the agreement, some how or the other and that she abruptly got issued a telegram. The occasion to verify the readiness or willingness on the part of the respondent would have arisen, if only there was a demand made by the appellant and failure on the part of the respondent. The offer made through Ex.A-1 by the respondent did not evoke any positive response from the appellant. The only response from her was the abrupt termination of the agreement through Ex.B-1. The trial Court and the lower appellate Court have referred to the oral and documentary evidence and arrived at the conclusion that it is the appellant, who did not extend cooperation for execution of the sale deed. 10. Another aspect of the matter is that one of the conditions under Ex.A-1 is that in the event of any failure on the part of the respondent to pay the balance of consideration within the stipulated time, the agreement shall stand cancelled with forfeiture of Rs. One lakh. In other words, if the appellant exercises the option to terminate the agreement, she was under obligation to refund a sum of Rs.50,000/-. Nothing in this regard was mentioned in Ex.B-1, nor was it accompanied by any demand draft for Rs.50,000/-. Therefore, Ex.B- 1 was totally untenable in law. 11. Learned counsel for the appellant submits that there are interpolations in Ex.A-1. Since no specific mention thereof was made at the stage of suit or appeal, he cannot be permitted to urge the said ground in the second appeal more so, when it is a question of fact. Further, the so-called interpolations are in a way in favour of the appellant. Viewed from any angle, this Court does not find any basis to interfere with the concurrent findings of fact. 12. The Second Appeal is, accordingly, dismissed. There shall be no order as to costs. ___________________ L.NARASIMHA REDDY, J June 10, 2011. KTL