IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD FRIDAY, THE ELEVENTH DAY OF MARCH, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 446 OF 2001 BETWEEN: Menda Kotaiah. …APPELLANT AND Gunji Mahalakshmamma (died) and others …RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 446 OF 2001 JUDGMENT: The plaintiff in O.S.No. 111 of 1996 on the file of Principal Senior Civil Judge, Ongole, is the appellant herein. 2. The suit was filed for specific performance of the contract of sale, dated 02-03-1991. 3. The allegations in the plaint go to show that one G.Chenchaiah was the owner of the schedule property and agreed to sell the same to the plaintiff for a consideration of Rs.1,05,000/- and received a sum of Rs.15,000/- and executed an agreement on the same day. It was further agreed that the balance of sale consideration shall be paid on or before 25-03-1991 and within the said stipulated period, the vendor should get the tenant in the plaint schedule property evicted and deliver possession of the property. It was also a stipulated that Chenchaiah should discharge completely the debt due under a mortgage deed. The plaintiff was always ready and willing to perform the part of contract and demanding Chenchaiah to discharge the mortgage debt of Kankanala Rathnam and evict the tenants and get the sale deed executed. The plaintiff also paid a sum of Rs.10,000/- on 02-05-1991 and the time for performance was extended up to 02- 05-1993. The plaintiff has taken Municipal water connection to the schedule property and spent sufficient money. The possession of the property was delivered in May, 1991. In spite of several demands, the said Chenchaiah did not discharge the mortgage debt and ultimately the plaintiff’s wife paid the mortgage debt of Rathnam got transfer of the mortgage deed on 07-12-1993. There is also another mortgage executed by son of Chenchaiah and that was also transferred in favour of the wife of the plaintiff. As the vendor was postponing to execute the sale deed, a legal notice was given on 22-02-1995, but he did not give any reply. On 21-01-1996 the said Chenchaiah died intestate. The defendants are his legal heirs, they are bound to execute the sale deed in favour of the plaintiff as per the agreement. Hence the suit. 4. The 4th defendant filed a written statement denying the allegations in the plaint with regard to the sale agreement and also the payment of the several amounts. The allegation that the plaintiff is ready and willing to perform the contract is also disputed. The plaintiff is only intending to knock away the properties with false case. The plaintiff took the schedule property for rent when the deceased Chenchaiah was alive at the rate of Rs.800/- per month and the plaintiff did not pay the rents. After the death of Chenchaiah, the agreement pleaded by the plaintiff, dated 02-03-1991 is correct to the extent of the payment and it is also correct to the extent of part payment, dated 02-05-1991. There was a condition of extension of the period of agreement till 02-05-1993 and this endorsement is a fabricated one. The plaintiff got discharged the mortgage debts without the knowledge of the defendants. The plaintiff could have as well got the mortgage debt discharged from the sale consideration, but did not do so. Therefore, the suit is liable to be dismissed. 4. The Written Statement filed by the 4th defendant was adopted by defendants 1 to 3, 5 and also defendants 10 to 17. 5. Defendants Nos.8 and 9 filed a written statement denying the knowledge of the agreement and the liability is also disputed. 6. On the basis of the above pleadings, the following issues have been framed by the trial Court, for trial: 1) Whether the plaintiff is entitled for specific performance of agreement to sell dt.2.3.1991 as prayed for? 2) Whether the suit is barred by limitation as pleaded by D.4 in his written statement? 3) Whether the suit agreement dt.2.3.1991 is materially altered. If so, whether the suit is liable to be dismissed? 4) Whether the suit filed by the plaintiffs against minor defendants 8 & 9 is not maintainable as the suit agreement is not for their benefit? 5) To what relief? 6. On behalf of the plaintiff, PWs.1 to 3 were examined and marked Exs.A-1 to A-5. On behalf of the defendants, DW.1 was examined and no documents were marked. 7. After considering the evidence on record, the learned Principal Senior Civil Judge, Ongole, dismissed the suit for specific performance. But, however, the defendants 3 to 17 are directed to pay Rs.25,000/- to the plaintiff, which Chenchaiah received. Aggrieved by the said judgment and decree, the present appeal is filed. 8. The points that arise for consideration are: 1) Whether the time is essence of the contract and whether there is a manipulation of the endorsement of the payment under Ex.A-2? 2) Whether the judgment and decree passed by the learned Principal Senior Civil Judge, Ongole, is legal and sustainable? 9. POINTS: This being a suit for specific performance of the agreement of sale, and when the lower Court has exercised its discretion in refusing to grant relief of specific performance, this Court has to see whether there are any special and valid circumstances calling upon an interference of alteration of the decree and the granting of the relief of specific performance. It is also to be noted that the defendants have not filed any appeal against the decree of the Court for refund of Rs.25,000/- as ordered by the lower Court. 10. Much of the facts are not in dispute. The execution of the agreement Ex.A-1 and the receipt of sale consideration of Rs.15,000/- on the same day is not in dispute. The agreement is dated 02-03-1991 and the time was fixed for payment of the balance amount on or before 25-03-1991. It is also not in dispute that on 02-05-1991 as sum of Rs.10,000/- was paid, which is after the stipulated period i.e., 25-03-1991. The endorsement under Ex.A-2 is admitted. According to the case of the defendants, the condition mentioned in Ex.A-2 that the time was extended up to 02-05-1993 for performance of the contract is a later condition to bring the suit within the period of limitation and therefore, the suit is liable to be dismissed. In fact, the lower court has found that this endorsement extending the time till 02-05-1993 is a fabricated one and materially altered one. 11. For a purpose of decision in this case, I do not want to deal much as to whether this addition is by consent or an interpolation made by the plaintiff. From the face of it, when once the original contract stipulates that the performance is fixed for less than a month for payment of the balance of consideration of Rs.90,000/- and when after the stipulated period of nearly two months, Rs.10,000/- alone was paid, there is no reason as to why a period of nearly two years shall be fixed for payment of the balance of consideration. Further, either under the original agreement Ex.A-1 or under Ex.A-2, there is no condition between the parties for payment of the interest in case the money is not paid within the stipulated time. Generally, the Courts will not take time as essence of the contract in case of sale of immovable properties. But, however, when there is undue delay and an undue advantage to the plaintiff, the intention of the vendor cannot be ignored. 12. In a suit for specific performance of the contract, the plaintiff should plead and prove that he is always ready and willing to perform the part of contract. Two reasons were mentioned by the plaintiff attributing breach by Late Chenchaiah. According to him, the tenants are to be evicted from the premises. According to his own showing, in the month of May, 1991 possession of the property was delivered to him and continues to be in possession. It is a different thing that the defendant contends that he was a tenant earlier. But, however, the fact remains that there is no other tenant and no evidence is adduced as to who else is to be evicted from the schedule premises. Therefore, his contention that a breach was committed by the late Chenchaiah is false. 13. The second contention of the plaintiff is that Chenchaiah has to discharge the mortgage debts to Kankanala Rathnam and that mortgage debt was not discharged in spite of repeated demands and therefore, the vendor has committed the breach. This theory of the plaintiff is also false. The plaintiff is aware that the debt was due to Rathnam under a mortgage. The purchaser of a property, who insists that the mortgage debt shall be discharged, in his preparedness to get the sale deed, shall pay the consideration and see that the mortgage debt is discharged. But, on the other hand, the conduct of the plaintiff clearly goes to show that on 07-12-1993 his wife has paid the mortgage debt of Rathnam and got the transfer of the mortgage bond. She is also said to have obtained transfer of another mortgage debt due by the son of Chenchaiah. If the plaintiff was ready and willing to perform the contract, the consideration should have been paid through the vendor Chenchaiah and realised the mortgage of the property. Therefore, the conduct of the plaintiff is not bona fide and he was not interested in paying the money to Chenchaiah for discharge of the mortgage debts. Therefore, even after 02-05-1993, which is the time said to have been fixed, the money was not paid and on the other hand, on 07-12-1993 he got the mortgage bond discharged and transferred through his wife. Added to that, after 07-12-1993 till February, 1995, he never expressed his preparedness to get the sale deed executed by payment of the balance of sale consideration. Therefore, this circumstance clearly goes to show that the plaintiff has taken advantage of the possession with him and he does not want to pay the money and enjoy the property and even after the filing of the suit, he did not see that the debt due to his wife is discharged by depositing the amount in the Court. When less than a month period was fixed under Ex.A-1 as the time for performance of the contract, the urgency and the need of the vendor for the money can be visualised. His plea that he came into possession of the property after the endorsement under Ex.A-2 is also not reflected in Ex.A-2. Therefore, from the circumstances available on record, it is quite clear that there is no preparedness or willingness on the part of the plaintiff to pay the balance of sale consideration and obtained the sale deed. His conduct is not bona fide since he never offered to pay the money to the vendor for discharge of the mortgage debts and on the other hand, he got it transferred in favour of his wife and he at no point of time, has expressed his willingness to give a set off of that amount towards the sale consideration payable by him. The legal notice and his evidence is silent on his preparedness. On the other hand, he was insisting for discharge of the mortgage debts without paying the balance of sale consideration. Therefore, the judgment and decree passed by the learned Principal Senior Civil Judge, Ongole, in refusing discretionary relief of specific performance does not call for any interference. 14. The counsel for the respondent relied on a decision reported in Parakunnan Veetill Joseph’s Son Mathew, Vs. Nedumbara Kuruvila’s Son and others[1], wherein it was found that the Court should see that litigation is not used as an instrument of oppression to have an unfair advantage to the plaintiff. In that decision, the scope of exercising of the judicial discretion under Section 20 of the Specific Relief Act, 1903 has been considered. The points are answered accordingly. In the result, the appeal is dismissed with costs. _________________________ N.R.L.NAGESWARA RAO, J Date: 11-03-2011. INL [1] AIR 1987 SUPREME COURT 2328