IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD MONDAY, THIS THE 14TH DAY OF SEPTEMBER, 2009 SECOND APPEAL No.1354 of 2008 Between: B.Venkat Reddy ….APPELLANT and Karakambadi Venkatrayulu …RESPONDENT THE HON’BLE SRI JUSTICE V.ESWARAIAH SECOND APPEAL No.1354 of 2008 ORDER: This appeal is directed against the decree and judgment dated 24.10.2008 in A.S.No.46 of 2007 on the file of the III Additional District Judge Court, Tirupati, whereby the judgment and decree dated 12.03.2007 in O.S.No.127 of 2003 on the file of the Principal Senior Civil Judge’s Court, Tirupati, was confirmed. The brief facts of the case are as follows. Appellant filed O.S.No.127 of 2003 seeking specific performance of Ex.A.1 agreement of sale dated 03.07.2000 in respect of the suit schedule property of an extent of Ac.1.65 cents in S.No.10/2 situated at Nallamanikala village in Tirupati Rural Mandal of Chittoor District. Originally, the said property belongs to the respondent who entered into an agreement with the appellant for sale of the same for a consideration of Rs.1,37,000/- and received an amount of Rs.20,000/- towards advance on the date of agreement and the balance was agreed to be paid on or before 20.01.2001 and get a regular sale deed executed in favour of the appellant. There was a stipulation in the agreement of sale that in case the appellant fails to pay the balance sale consideration of Rs.1,17,000/- on or before 20.01.2001 as agreed he has to forego the advance amount of Rs.20,000/-. It was also stipulated that if the respondent refuses to receive the balance sale consideration and fails to execute the regular sale deed, it is open for the appellant to deposit the balance sale consideration in the Court and get the specific performance of agreement of sale through the Court. One day before the date fixed for the payment of balance sale consideration, the appellant issued a legal notice 19.01.2001 calling upon the respondent to receive the balance sale consideration and execute the registered sale deed in terms of the Ex.A.1 agreement of sale failing which the appellant will take appropriate legal proceedings and had also called upon to return the promissory note said to have been executed by him and issued to the respondent. The appellant also put forth the contention that the respondent’s sisters have also a share in the said property which fact was said to have been suppressed at the time of execution of agreement of sale. The respondent got issued Ex.A.4 reply notice dated 23.01.2001 to the appellant alleging that the appellant was not ready and willing to perform his part of the contract by paying the balance sale consideration of Rs.1,27,000/- and denying all the allegations including the fact that his sisters have got a share in the said property and the appellant gave him the blank promissory note. After receiving the Ex.A.4 legal notice the appellant kept quiet for about one and half years and against issued Ex.A.3 legal notice dated 19.05.2002 demanding the respondent to receive the balance sale consideration and execute the sale deed for which Ex.B.1 reply notice dated 30.05.2002 was issued by the respondent denying the allegations made against him. Thereafter, the suit was filed in 2003. Based on the pleadings, the trial Court considered the issue whether the plaintiff (appellant) is entitled for the relief of specific performance of contract of sale as prayed for and held that the plaintiff (appellant) was not ready to perform his part of the contract and, therefore, he is not entitled for the specific performance of the contract of sale. Aggrieved by the said judgment and decree of the trial Court in O.S.No.127 of 2003 dated 12.03.2007 the appellant preferred A.S.No.46 of 2007 on the file of the III Additional District Judge, Tirupati, which considered the points as to whether the appellant is entitled for specific performance of the agreement of sale or for refund of the advance sale consideration and, on the ground that he failed to prove that he was ready and willing to perform his part of the contract at all material times, held those points against the appellant. The learned counsel appearing for the appellant submits that the appellant was ready and willing to perform his part of the contract at all material times and as per Explanation (i) to Section 16(c) of the Specific Relief Act, 1963 (for short – ‘the Act’) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the Court and, therefore, there was no need for the plaintiff to deposit the balance sale consideration of Rs.1,17,000/- in the Court. I am unable to accept the said contention of the learned counsel appearing for the appellant keeping in view the Explanation (ii) to Section 16(c) of the Act which reads as under: “the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.” As per Ex.A.1, agreement of sale, there was a condition that if the appellant tenders the balance sale consideration calling upon the respondent to execute the sale deed and in the event of failure of the respondent to do so the appellant can deposit that amount in Court and seek specific performance of the contract. Therefore, as per the true construction of the agreement of sale, the appellant has to deposit the money into Court alleging that when he offered to pay the balance sale consideration the respondent refused to receive the same and failed to execute the regular sale deed and seek specific performance of the contract of sale. But, in the instant case, the appellant failed to deposit the balance sale consideration in the Court and a perusal of the pleadings goes to show that the appellant was not ready with the money and willing to perform his part of the contract at all relevant material times and, therefore, it cannot be said that he is entitled for specific performance of the contract of sale. Therefore, there are no grounds to interfere with the concurrent finding arrived at by both the courts below and the appeal is liable to be dismissed. Accordingly, the second appeal is dismissed. No order as to costs. __________________ V.ESWARAIAH, J Date: 14.09.2009 CVRK