*THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY +Second Appeal No.199 of 2004 % Dated 03.12.2011 # Malireddy Buthiramanna Dora and another. ….Appellants $ Dasari Veerabhadra Rao and another. ….Respondents ! Counsel for the appellants : Sri V.L.N.G.K.Murthy ^ Counsel for respondents : Sri S.Srinivas < GIST: > HEAD NOTE: ? Cases referred: 1. 1997 (3) SCC 1 THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.199 of 2004 JUDGMENT: The plaintiffs in O.S.No.338 of 1996 on the file of the I Additional Junior Civil Judge, Kakinada are the appellants. The suit was filed against the respondents-spouses for the relief of specific performance of an agreement of sale, dated 12.02.1993. It was pleaded tat the 2nd respondent is the owner of the property and herself and her husband agreed to sell the property for a consideration of Rs.50,000/- and on the date of execution of the agreement of sale, advance of Rs.5,000/- was paid. It was pleaded that inspite of repeated demands, the respondents did not execute the sale deed and ultimately, a telegraphic notice was issued on 07.02.1996 requiring them to execute the sale deed. The respondents are said to have pretended ignorance of the very document and that vexed with their conduct, the appellants filed the suit. The respondents filed a written statement, opposing the suit. According to them, the agreement of sale was a forged one and that neither the agreement was executed nor the advance was received. Certain other grounds were also pleaded. Through its judgment, dated 18.09.2000, the trial Court decreed the suit. The respondents filed A.S.No.134 of 2000 in the Court of IV Additional District Judge, Kakinada. The appeal was partly allowed on 11.07.2009 and the alternative relief of refund of the advance of Rs.5,000/- with interest at the rate of 12% per annum was granted. Hence, this second appeal. Sri V.L.N.G.K.Murthy, learned counsel for the appellants submits that the trial Court and the lower appellate Court held that the agreement-Ex.A.1 is proved and that though the trial Court decreed the suit, as provided for in law, the lower appellate Court reversed the same on a totally untenable ground. He also submits that the non-cooperation on the part of the respondents can be culled out from the fact that they went to the extent of denying the very execution of the agreement of sale. Learned counsel further submits that the so-called delay was not at all material and that it was occasioned on account of non- cooperation of the respondents. Sri S.Srinivas, learned counsel for the respondents, on the other hand, submits that Ex.A.1 was held proved by the trial Court and the lower appellate Court, without there being adequate evidence. He submits that whatever be the circumstances, for holding that Ex.A.1 is proved, there was no basis for the trial Court to decree the suit, particularly when the appellants did not exhibit their willingness and readiness almost for a period of three years. He contends that even if Ex.A.1 can be said to have been proved, a party who just paid a small fraction of the total consideration cannot insist on specific performance, having kept quiet for a considerable time. The trial Court framed the following issues for its consideration: 1. Whether the suit sale agreement dt. 123-2-93 is true, valid and binding on the defendants? 2. Whether the plaintiffs are entitled to the decree of specific performance of the alternative relief as prayed for? On behalf of the appellants, P.Ws.1 and 2 were examined and Exs.A.1 to A.5 were filed. The 1st respondent deposed as D.W.1 and no documentary evidence was adduced. On the suit being decreed, the respondents filed the appeal and the lower appellate Court framed the following points for its consideration: 1. Whether Ex.A.1 agreement to sell dated 12-2- 1993 is executed by D.1 and D.2 and whether it is binding on the defendants? 2. Whether the plaintiff is entitled for the decree of specific performance against the defendants or in the alternative entitled for a decree for recovery of the amount? 3. Whether the findings of the learned trial judge are liable to be interfered with? The first point was held in favour of the appellants, but points 2 and 3 were answered in favour of the respondents. Ultimately, the appeal was partly allowed, granting the alternative relief. The finding recorded by the trial Court and the lower appellate Court that Ex.A.1 was proved, has become final, since it was not challenged by the respondents. Therefore, it must be presumed that the respondents executed Ex.A.1. That however is not the end of the matter. The Specific Relief Act (for short ‘the Act’) stipulates the manner, in which the Court must exercise its discretion, while handling the suits for specific performance. Though the remedy is discretionary in nature, such discretion must be guided by objective reasons and must not be exercised arbitrarily. It is too well known that time cannot be treated as the essence of contract in cases, where the subject matter of agreement is immovable property, unless such an indication is made in unequivocal terms. All the same, the time that is agreed to between the parties for conclusion of the contract, particularly in respect of urban properties, needs to be taken into account while exercising the discretion. The detailed observation made by their lordships in K.S.Vidyanadam vs. Vairavan[1] is relevant in this context. It was held that if a small fraction of total consideration is paid, and no steps are taken for quite a considerable period, after expiry of the time stipulated for conclusion of the contract, the Court can refuse the relief by treating that the plaintiff was not ready and willing to perform his part of the contract. In that case, as against the total consideration of Rs.60,000/-, advance of Rs.5,000/- was paid. The time stipulated for conclusion of the contract was six months. The first attempt on the part of the plaintiff to seek performance, was the issuance of notice, after expiry of two and half years. In the instant case, the total consideration is Rs.50,000/- and advance of Rs.5,000/- was made. Three months time was stipulated for conclusion of the contract, whereas the first step taken by the appellants in the form of issuance of telegraphic notice was on 07.02.1966, that is almost three years after the date of agreement. The ratio laid down by the Hon’ble Supreme Court squarely gets attracted to the facts of this case. It may be true that the appellants herein stated in the plaint that they have been and are ready and willing to perform their part of the contract. Two aspects need to be dealt with separately. “Readiness” is a situation, where the plaintiff is supposed to have adequate financial resources, for discharge of his part of the obligation, under the contract. However, even if the plaintiff in a particular suit is possessed of adequate means, from the beginning, it cannot be said that the requirement under Section 16 (c) of the Act is fulfilled by him. What becomes material is his “willingness”. This aspect is to be discerned only from the acts and omissions on the part of the plaintiff. Even while possessing adequate means, if the plaintiff has not taken any steps to discharge his part of the obligation, as provided for under the contract, the prohibition contained under Section 16(c) of the Act gets attracted. One of the indicators to know whether or not the plaintiff in a suit of this nature is willing to perform his part of contract, is his conduct or the steps taken by him to ensure that the transaction is completed within the stipulated time. If there was undue delay or indifference on his part, his willingness deserves to be doubted. The lower appellate Court has taken correct view of the matter and the interests of the appellants are adequately protected by granting the alternative relief. The second appeal is accordingly dismissed. There shall be no order as to costs. __________ 03.12.2011 Note: L.R.Copy to be marked. (B/o) JSU THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.199 of 2004 Date: 03.12.2011 JSU [1] 1997 (3) SCC 1