THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 1347 OF 2002 JUDGMENT: The defendants in O.S.No.59 of 1994 on the file of II Additional Senior Civil Judge, Kakinada, are the appellants. 2. The suit was one filed for specific performance of the contract of sale of sale dated 08.04.1992. 3. The allegations in the plaint go to show that the suit schedule property, which is an extent of Acs.8.88 cents in Sy.Nos.614/1 and 610/3 in Polekurru village of Tallarevu Mandal was offered to be sold by the 1st defendant for a consideration of Rs.1,24,320/- to the plaintiff. An agreement of sale was executed on 08.04.1992 and an advance of Rs.5,000/- was received and the balance was to be paid by the plaintiff on or before 08.06.1992. The 1st defendant represented that the schedule property fell to his share and he is the absolute owner of the property. The plaintiff approached the 1st defendant within two months to receive the balance of sale consideration, but the 1st defendant postponed on the ground that an extent of Acs.50.62 cents belonged to Zamindar and was given a patta to the father of the 1st defendant on payment of Rs.1/- per acre in 1943 and their family has been in enjoyment of the property. During the lifetime of the father of the 1st defendant, he promised before the elders of Agnikula Kshatria community of Gadimoga village that he will donate Acs.20.00 cents to their community, but he could not do it. Therefore, the 1st defendant to fulfil his father’s obligation, has promised, got paid the sale consideration got under the earlier transactions with the plaintiff. The 1st defendant requested time for settlement of the above claims. As the land value has increased, the 1st defendant postponed the registration stating that his sons are not available. The plaintiff has got issued a legal notice on 20.02.1994, for which a reply was given with all false allegations. Hence the suit for specific performance or in the alternative refund of the consideration of Rs.5,000/- with interest at 24% per annum from 08.04.1992 till the date of realisation. 4. Pending disposal of the suit, the 1st defendant died and defendants Nos. 5 and 6 were added as legal representatives. Defendants 2 to 4 filed a written statement contending that they are not parties to the agreement and the plaintiff is aware that the property is a joint family property. It was further pleaded that on the date of agreement, it was understood that the plaintiff should get the consent of the other defendants. Time was essence of the contract and the plaintiff was never ready and willing to perform the part of the contract. The agreement is therefore, not enforceable. There is no cause of action to file the suit. The suit is liable to be dismissed. 5. 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 the relief of specific performance? 2. Whether the plaintiff is entitled the alternative relief in respect of refund of advance amount? 3. Whether the plaintiff committed breach of contract? 4. Whether the defendants 2 to 4 are necessary and proper parties to the suit. 6. On behalf of the plaintiff, PWs.1 and 2 were examined and marked Exs.A-1 to A-8. On behalf of the defendants, DW.1 was examined and no documents were marked. 7. After considering the evidence on record, the learned II Additional Senior Civil Judge, Kakinada, decreed the suit for specific performance. Aggrieved by the said judgment and decree, the present appeal is filed. 8. The points that arise for consideration are: 1) Whether the plaintiff was ready and willing to perform the contract? 2) Whether the plaintiff is entitled for the equitable relief of specific performance? 3) Whether the judgment and decree passed by the learned II Additional Senior Civil Judge, Kakinada, is legal and sustainable? 9. POINTS: Evidently, the executant of the agreement is not available for evidence. Defendant No.3 is no other than the scribe of the agreement. He did not go into box. Since the defendants are claiming that the time is essence of the contract and that the property is joint and not specifically enforceable and as the plaintiff is not ready and willing to perform the contract, the Court has to see as to whether the claim of the plaintiff is true or not. To support the case of the plaintiff, except examining himself and his brother-in-law PW.2, he did not examine any person associated with the sale agreement Ex.A.1. Ex.A.1 dated 08.04.1992 clearly stipulates that the extent of Acs.8.88 cents in Sy.Nos. 614/1 and 610/3 was sold for a consideration of Rs.1,24,320/- and an advance of Rs.5,000/- was given and the balance shall be paid before 08.06.1992 and the sale deed has to be executed. Evidently, there is no other condition incorporated in Ex.A.1 that in case of the failure to pay the balance consideration within the stipulated date, the amount, which was already paid, shall be paid with interest nor there is clause for forfeiture. Evidently, the legal notice was issued on 20.02.1994 long after the time stipulated under the agreement. The contention of the plaintiff is that he was ready with the money and the explanation given by the 1st defendant was that a promise said to have made by his father to the community people has to be performed and therefore, there was a delay. Evidently, as can be seen from the evidence and the plaint, the promise of the father of the 1st defendant was said to be convey Acs.20.00 cents of land to their community. Earlier also, the 1st defendant is said to have paid the consideration received under the sale transactions Exs.A.6 to A.8, for which the plaintiff is a party under Ex.A.6. Therefore, if the reason for postponement of the execution of the sale deed is to fulfil the promise of the father of the 1st defendant, then naturally he needs money and he will not postpone the execution of the sale deed. Therefore, the case of the plaintiff does not appear to be probable. On the other hand, in his evidence also it is not clear as to for what reason the defendant wanted to postpone the sale transaction having already sold part of the properties earlier. Except this reason, the plaintiff is not putting any other blame on the 1st defendant for delaying the execution of the contract after receiving the balance of sale consideration. According to him, the subsequent claim that it was a joint property and therefore, the other defendants did not co-operate cannot also be taken into consideration since defendant No.3 was a scribe of the agreement and evidently, the plaintiff has obtained the earlier sale deed and all the sale deeds Exs.A.6 to A.8 were taken from all the defendants. The evidence of PW.2 that one month after Ex.A.1 he went along with PW.1 to the house of defendant No.1 to ask the 1st defendant to receive the balance sale consideration, but, defendant No.1 did not receive the said amount from the plaintiff and did not come forward to execute the regular sale deed, clearly goes to show that by then itself the plaintiff is aware that the 1st defendant has committed a breach. 3 or 4 times he is said to have gone to the house of defendant No.1. His evidence is particularly silent about the reason for the 1st defendant in non-cooperating with the execution of the sale deed, he is not able to say as to how many times and what are the particular dates or period he has gone to the house of defendant No.1 along with the plaintiff and demanded the performance of the contract. On the other hand, in the legal notice Ex.A.2 the reason for delay was said to be that his son is not available and that the property is a joint property and all of them have got a right. The earlier version with regard to the postponement on the ground of fulfilling the desire of the father was not mentioned and it was only brought out in the rejoinder notice Ex.A.4. Therefore, it is quite clear that the plaintiff has not proved that within the stipulated time he was ready and willing to perform the part of the contract. 10. Though generally in sale of immovable properties, the time is not treated as the essence of the contract, but at the same time when a particular period is fixed the parties have to abide by it and if the time is not adhere to reasons should be given. In case of the plaintiff, if the stipulation of time is sought to be avoided he should show that the 1st defendant was the person who committed the breach in spite of his readiness and willingness to perform the contract at all times. 11. In a decision reported in Sardar Amarjeet Singh Vs. Nandu Bai and others[1], relied on by the counsel for the appellants, the Division Bench of this Court held that in assessing the question of readiness and willingness of the vendee to perform the contract, the Court can take into account long, unexplained silence and inaction on the part of the vendee. The continuous readiness and willingness on the part of the vendee is a condition precedent to grant specific performance of the contract. 12. Further-more, in a decision reported in Pushparani S.Sundaram and others Vs. Pauline Manomani James (Deceased) and others[2], it was found that mere plea of readiness and willingness in the plaint is not sufficient, but it has to be proved. The Court has also to take into account the small proportion of the consideration, which was paid as against the agreed lumsum compensation payable within the stipulated period. 13. Further-more in a decision reported in Bal Krishna and another V. Bhagwan Das (Dead) and others[3], the scope of Section 16 was considered and the power of the Court to exercise the discretion was also considered. It was found that the relief of specific performance cannot be granted if the contract is not equal and fair and gives an unfair advantage to the plaintiff. Even according to the evidence of the plaintiff, the values of the properties have gone up. Further-more, as against the price fixed under the agreement, the amount paid is only pittance. There is no obligation to pay the interest and the lower Court also did not direct to deposit of the balance amount with any interest. The decree of the Court was passed ten years after the agreement of the sale directing the balance of consideration to be deposited within two months. Therefore, from the date of agreement and from the date of the decree ten years have elapsed and the value of the properties have gone up and the plaintiff having paid only a paltry sum of Rs.5,000/- is getting advantage of rights of specific performance in large extent of Acs.8.88 cents of land by paying the balance of consideration, which he should have paid within two months from the date of agreement. Therefore, it is quite clear that there is undue advantage to the plaintiff and lot of hardship to the defendants and the relief of specific performance in such circumstances, is inequitable when the value of the money has gone down and the value of the properties have gone up. The value of the money had it been paid or deposited in 1992 is more when compared to 2002. Therefore, for the above reasons, I find that the plaintiff has failed to prove readiness and willingness to perform the part of the contract and the decree of specific performance benefits the plaintiff is undue advantage for his own fault of being not complying with the time fixed under the original agreement and also not paying the money even subsequently within reasonable time, and as such, the decree of the lower Court for specific performance is liable to be set aside in so far relates to the decree of the specific performance and instead the suit of the plaintiff is decreed for refund of the amount of Rs.5,000/- with interest at 12% from 15.03.1994 till the date of realisation. 14. In the result, the appeal suit is allowed in part by setting aside the judgment of the lower Court in so far relates to the decree of the specific performance and instead the suit of the plaintiff is decreed for refund of the amount of Rs.5,000/- with interest at 12% from 15.03.1994 till the date of realisation. Each party shall bear their own costs in this appeal and in the lower Court. ________________________ N.R.L.NAGESWARA RAO, J Date: 30.06.2011. INL [1] 1998(5) ALT 412 (D.B.) [2] 2002(9) SCC 582 [3] 2008(3) ALD 27 (SC)