THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.38 OF 2001 Date: 23-02-2011 Between: Baddinapudi Bullammai and others .. Appellants And Kotari Bhushanam (died) per L.Rs. and others .. Respondents THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.2 OF 2001 JUDGMENT: The appeal is directed against the judgment and decree dated 27.11.2000 passed by the learned Senior Civil Judge, Tanuku. The defendants 1 to 3 in O.S.No.76 of 1988 on the file of the Senior Civil Judge, Tanuku, are the appellants herein. The suit was filed for specific performance of the contract of sale dated 29.01.1988 executed by the 1st defendant in favour of the plaintiff. 2. The plaintiff’s wife and the defendants are joint owners of the property at Tanuku. The plaintiff’s wife is the owner of the southern most portion whereas the defendants 1 and 2 are the adjacent owners on the northern side and the 3rd defendant is the owner of the middle portion. The schedule property relates to middle and the northern portion of the house. The wife of the plaintiff tried to remove her portion to construct a terraced building and the defendants objected. Thereafter, there was a mediation by the elders and the defendant agreed to sell the schedule property for a sum of Rs.52,000/- and on 29.01.1988 an agreement was executed and a sum of Rs.5,000/- was taken as an earnest money. The balance has to be paid within three months and registered sale deed has to be taken. The plaintiff has approached the defendant through elders for execution of the sale deed and also sent a document writer K.Narsimha Murthy to measure the portion. But the defendant did not cooperate, though the plaintiff was always ready and willing to perform the contract. On the date of registered agreement and on the date of registered notice one Nekkanti Suryarao was tenant and he has since vacated. The defendants contended that the plaintiff committed breach of the contract which is not correct. Hence, the suit was filed for specific performance. 3. The defendants filed a written statement admitting that they agreed to sell two portions for a consideration of Rs.52,000/- on 29.01.1988 and received a sum of Rs.5,000/-. But contract has to be performed within three months and time is essence of the contract; as the plaintiff had not come forward to perform the contract within the stipulated time the agreement cancelled and the advance is liable to be forfeited. This defendant evaded to perform the contract. The plaintiff has no money to pay and obtain the sale deed. The amount was also not deposited. The relief of specific performance is, therefore, cannot be granted. Therefore, the defendant pleaded for dismissal of the suit. The defendants 4 to 6 came on record as the children of defendant No.3 and it was contended that the 3rd defendant is their father and he purchased the said property by sale of the Mandapaka and, therefore, he cannot alienate the same; there is no benefit of the family and the agreement is not binding on the defendants. 4. After filing of the suit, the 1st plaintiff died and plaintiffs 2 to 7 came on record and the defendants filed a written statement contending that the plaintiffs are not entitled for the specific performance. 5. On the basis of the above pleadings, the following issues were framed for trial: 1. Whether the plaintiff is entitled for the relief of specific performance of the suit agreement and possession of the plaint schedule property? 2. Whether time is the essence of contract and whether the defendant committed breach of agreement? 3. Whether the agreement has been unenforceable in view of the breach committed by the defendant? 4. Whether the plaintiff looks bonafides in not depositing the sale consideration? 5. To what relief? The following additional issue framed on 16.11.1994: 1. Whether the suit agreement is not binding on D.4 to D.6? The following additional issue also framed on 01.09.1999: 1. Whether the plaintiffs 2 to 7 are entitled for the decree for specific performance of agreement and possession of the plaint schedule property? 6. On behalf of the plaintiffs, P.Ws.1 to 3 were examined and marked Exs.A-1 to A-11 and on behalf of the defendants, D.Ws.1 to 5 were examined and marked Exs.B-1 to B-4. 7. After considering the material and the evidence on record, the learned Senior Civil Judge, Tanuku decreed the suit of the plaintiffs and 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 the plaintiffs were ready and willing to perform the contract? 2. Whether the Whether the judgment and decree passed by the learned Senior Civil Judge is legal and sustainable? POINTS 1 & 2: 9. There is no dispute about the fact that the plaintiff and Defendants 1 to 3 reside in the premises, which are adjacent to each other and the plaintiff’s wife is the owner of the southern portion, 3rd defendant is the owner of the middle portion whereas northern portion belongs to defendants 1 and 2. The fact that the defendants 1 to 3 agreed to sell the property for a consideration of Rs.52,000/- and received a sum of Rs.5,000/- and the agreement of sale was executed on 29.01.1988 is not in dispute. It is also not in dispute that as per the agreement time for performance was fixed as three months. The suit was filed on 16.06.1988. The contention of the defendants is that time is essence of the contract and as the plaintiffs have failed to perform their part of the contract by tendering the balance amount of Rs.47,000/- the suit is liable to be dismissed. 10. Learned counsel for the appellant contends that the approach of the lower Court in determining the issues is not correct and the burden was cast on the defendant and misread the evidence and decreed the suit of the plaintiff, which is not correct. 11. On the other hand, learned counsel for the respondents contends that the delay was because of the conduct of the defendants only as found by the lower Court and no blame can be made on the plaintiff. 12. Before appreciating the rival contentions of the parties, it is useful to refer to the essential term in the contract Ex.A-2. It has been specifically stated at the end of the agreement to the effect that prior to the registration the schedule property should be made vacant and on the date of registration the possession shall be delivered to the plaintiff. Therefore, the fact that the parties intended that the vacant possession should be delivered by the date of registration cannot be disputed. The question that fall for consideration is whether by the stipulated time of three months the suit property was vacant. It has to be noted that there are two portions covering the sale agreement. One is the middle portion belonging to the 3rd defendant and another portion, which is on the northern side belonging to the defendants 1 and 2. In fact, in the evidence of D.W.1, it was also specifically admitted that Ex.A-1 contains the clause that they have to vacate the premises within three months and the time was fixed as such for that period. In fact, the 3rd defendant as D.W.2 also admitted that there was a term to that effect in Ex.A-1. According to P.W.2 that one Nekkanti Suryarao was a tenant in one of the portions and he wanted to vacate within three months and, therefore, time was granted. The evidence of P.W.3, who is said to be scribe of Ex.A-2 also states that a condition was there that the tenant should vacate and even before the time was fixed he went to the defendants. D.W.3 is no other than the tenant, who lived in the portion of defendants 1 and 2 for about one year two months and he claims to have vacated the house when the drainage was closed. He is not aware of the purchase by the plaintiff. He claims to have vacated the house on his own accord. Therefore, by the date of the agreement of sale, D.W.3 was a tenant, cannot be disputed, merely because his name was not mentioned as a tenant in Ex.A-2. It does not mean that the plaintiffs have invented a theory that D.W.3 has not vacated the premises. There was delay in seeking specific performance of the contract. The evidence of D.W.3 is quite vague as to when he vacated and the defendants have also not given with the particulars as to when D.W.3 vacated. The evidence of D.W.1 or D.W.2 is totally silent. On the other hand, it was suggested to P.W.1 as if D.W.3 was not at all a tenant, merely because a portion of the house was vacated by some of the defendants. It does not mean that the entire portion is ready for delivery when the tenant has vacated. Even in the written statement, there is no specific denial of the fact that Nekkanti Suryarao, who was a tenant, vacated only by the date of the suit was alleged. On the other hand, it was specifically pleaded that D.W.3 was not in possession after the agreement and till the date of notice. It was not clearly mentioned as to when D.W.3 vacated the premises. 13. It is clearly settled that that in case of sale of immovable property, time is not essence of the contract. In the present case, there was a condition stipulated between the parties before registration, vacant possession has to be given. The evidence on record clearly goes to show that even before the date of registration, the plaintiff sent the mediators and wanted to complete the transaction. The contention of learned counsel for the defendants that for the measurements, which were sought to be taken by P.W.3 no permission or requisition was taken from the Registrar is not tenable. After taking measurements only the particulars will be mentioned in the sale deed and the schedule will be given and after verification the document will be registered. Therefore, the contention to reject the evidence of P.W.3 cannot be accepted. 14. A feeble contention was raised that the money was not deposited in Court and the reason for delay was only because of the plaintiffs have no money. In fact, in the cross-examination of D.Ws.1 and 2, the capacity of the plaintiff to purchase the property and their financial status is not at al disputed. The availability of the money was shown by filing the F.D.R. out of Rs.50,000/- in Indian Bank at Tanuku on 01.08.1988. In fact, there is no obligation to deposit the balance sale consideration and the bonafides are shown by the plaintiff. There is no serious dispute about the capacity of the plaintiff. Therefore, the lower Court has rightly assessed the evidence and came to the conclusion that the plaintiff was always ready and willing to perform his part of contract and the delay, if any, was on the part of the defendants in not keeping the property vacant for delivery as the tenant has not vacated. There are no lack of bonafides on the part of the plaintiff and I do not find any reason to interfere with the judgment and decree dated 27.11.2000 passed by the learned Senior Civil Judge, Tanuku. Accordingly, the points are answered. 15. In the result, the appeal is dismissed but under the circumstances no costs. ________________________ N.R.L.NAGESWARA RAO, J 23-02-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.38 OF 2001 Date: 23-02-2011 MR