THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 861 of 1997 JUDGMENT: The plaintiffs in O.S.No.48 of 1988 on the file of the Subordinate Judge, Narsapur, are the appellants herein. The suit was one filed for recovery of the possession of the schedule property, which is an extent of Ac.5-26 cents of agricultural wet land at Mallavaram village, Narsapur Mandal, West Godavari District. The allegations in the plaint go to show that the properties are the joint family properties and originally the plaintiffs 1 and 2 executed an agreement of sale in favour of one late Bodapati Sanjeeva Rao on 27.09.1982 for a consideration of Rs.94,680/- and received advance of Rs.10,000/-. Subsequently, in suppression of the earlier agreement, another agreement was executed for the same price in favour of the 1st defendant on 13.10.1982. Out of the balance of sale consideration, a sum of Rs.55,000/- has to be paid by 31.12.1982 and possession has to be delivered. The balance of sale consideration has to be paid by 31.05.1983 and the sale deed has to be executed. In case of any default, the balance shall be paid with interest at 18% on or before 27.09.1983 and by then the condition is not complied with, the agreement can be rescinded and the purchaser will be entitled to the amount paid after deducting Rs.15,000/- from out of the consideration. Subsequently, the 1st defendant paid a sum of Rs.40,000/- on 15.01.1983 and Rs.24,000/- on 20.01.1983 and possession was delivered. The balance of Rs.20,680/- has to be paid before 31.05.1983 with interest at 18%. In spite of repeated demands, the 1st defendant has not paid the money and on the other hand, he inducted the other defendants into the schedule property. A notice was given giving option to the 1st defendant to pay the balance of consideration till 15.05.1985 with interest at 24%. But, in spite of it, the defendant kept quiet. Therefore, the 1st defendant committed breach of the contract and it has become not enforceable and is not entitled to continue in possession of the property. Hence, the suit for recovery of possession with profits. The 1st defendant filed a written statement, which was adopted by the defendants 2 to 5. The agreement and the conditions stipulated therein are admitted. Time is not the essence of the contract. The delivery of the possession on 20.01.1983 was admitted. It was further pleaded that prior to the agreement, the 1st defendant was a tenant and has to pay the balance of Rs.20,680/- to the plaintiffs 1 and 2 with interest at 24% but not with interest at 18% as mentioned in para 13 of the plaint. As this defendant expressed his inability to pay the balance amount before 31.05.1983 the plaintiffs 1 and 2 agreed for the same and that is why interest was enhanced to 24%. This defendant is ready and willing to pay the balance amount with interest at 24%. It is false to allege that this defendant executed agreements of sale in favour of the defendants 2 to 6. As the plaint schedule land is situated in Mallavaram Lanka village, this defendant has leased out the plaint schedule land to the defendants 2 to 6 for consideration only. It was also pleaded that after the receipt of the notice, the 1st defendant approached the 1st plaintiff and he was informed that he was given in a routine manner and, therefore, no reply was given. It was the specific plea that the plaint schedule property is not fertile land and crops have been failing in the schedule property since three or four years and that was the reason why he could not pay the balance of sale consideration to the plaintiffs 1 and 2. The defendant is always ready and willing to pay the balance with interest. There is no breach of contract. The defendant is entitled to protect his possession under Section 53-A of the Transfer of Property Act, 1882 (for short “the Act”). The claim for mesne profits is also not tenable. Therefore, the defendant pleaded for dismissal of the suit. On the basis of the above pleadings, several issues and additional issues have been framed. On behalf of the plaintiffs, P.Ws.1 and 2 were examined and marked Exs.A-1 to A-9. On behalf of the defendants, D.W.1 was examined and no documents were marked. After considering the evidence on record and having held that the 1st defendant committed breach of contract as the amount of consideration was not refunded, the suit of the plaintiff was dismissed. Aggrieved by the said judgment and decree dated 17.04.1997, the present appeal is filed. The points that arise for consideration are: 1. Whether the plaintiffs are entitled for recovery of possession of the property? 2. Whether the defendant is entitled for protection under Section 53-A of the Act? 3. Whether the suit of the plaintiffs is not maintainable for not refund of the money? POINTS: In this case, there is no dispute about the fact of execution of the agreement of sale and also the payment of the consideration and also the stipulation with regard to the payment of the interest. There is also no dispute about the fact that a notice was issued on 22.04.1985 under Ex.A-6 calling upon the 1st defendant to pay the money by extending time and for that no reply was given and the last payment that was made is under Ex.A-5 dated 20.01.1983. The agreement of sale Ex.A-1 is dated 27.09.1982 and Ex.A-3 is the agreement in favour of the 1st defendant. It was stipulated specifically that the balance has to be paid by 31.05.1983. But, in case of default, interest has to be paid and also damages for breach by either of the party were mentioned. Under Ex.A-6 time was given to 15.05.1985 to pay the balance with interest at 24%. The receipt of this notice is not in dispute. Evidently, after filing of the suit in 1988 and in spite of the allegation that the defendant was not ready and willing to perform the part of the contract and the contract has been cancelled, the 1st defendant has not chosen to file a suit for specific performance. In fact, after appreciation of the evidence, which appears to be correct, the learned Judge found that there is fault on the side of the defendant and there is fault on the side of the plaintiffs in not refunding the amount of the consideration after deducting the advance. The finding on issue No.3 is very much relevant for decision in this case. It has been specifically found that the 1st defendant has failed to discharge the part of the contract and the failure to pay the consideration was on failure of the crops as pleaded by the 1st defendant but even then it is the duty of the 1st defendant to pay the balance of consideration or to inform the plaintiff. Therefore, it is quite clear that a breach is said to have been committed by the defendant and consequently the plea of readiness and willingness to perform the contract does not arise. In fact, the allegations in the written statement clearly go to show that due to the failure of the crops and the land being not fertile, he could not pay the balance of sale consideration. Therefore, it is quite clear that the 1st defendant was not ready with the balance of sale consideration and he never intended to pay the balance of sale consideration and to obtain the sale deed by performing his part of contract. In order to attract the benefit under Section 53-A of the Act, it is for the purchaser to show that he was always ready and willing to perform the part of the contract. Readiness and willingness is not mere statement and it should be supported by conduct. When the conduct of the defendant itself shows that he had no money and even in spite of the cancellation of the contract under Ex.A-6 after giving the time, he did not offer to pay the balance of consideration and even after the filing of the suit to prove his readiness and willingness, he did not deposit the balance of sale consideration and, therefore, it is clear case where the defendant cannot plead the benefit under Section 53-A of the Act to protect the possession. The learned counsel for the respondents relied on a decision of the Hon’ble Supreme Court reported in Shrimant Shamrao Suryavanshi v. Prahlad Bhairoba Suryavanshi[1], wherein it was held that even if a relief of specific performance is barred by time, the person in possession can resist the suit of the owner for recovery of the possession of the property under Section 53-A of the Act. The above decision without any ambiguity clearly lays down that before such a protection is claimed, the essential requirement of Section 53-A of the Act has to be proved and essential requirement is readiness and willingness to perform the part of the contract. In this case, evidently, the 1st defendant has no money to pay the balance of consideration as pleaded in the written statement and as admitted in evidence and he also did not even give a reply to Ex.A-6 notice when the contract was cancelled and even after the filing of the suit, he did not pay the money and on the other hand, he is said to have been inducted defendants 2 to 6 in possession of the property. Their possession is said to be as tenants by the 1st defendant, whereas the plaintiffs claim that the property was sold under Exs.A-8 and A-9 agreements. In fact, in his evidence, the defendant admitted that he could not pay the balance of sale consideration to the plaintiff and he received the notice prior to the suit and did not give the reply. He admits that on 01.12.1982 he executed an agreement of sale for 2-00 acres in favour of defendant No.4 @ Rs.20,000/- per acre and on 15.07.1983 he sold Ac.2-26 cents to defendant No.5 and he received a consideration of Rs.40,000/- under that agreement and those agreements are Exs.A-8 and A-9. Therefore, this clearly goes to show that in spite of the fact that he has alienated the part of the property and got money by the stipulated date, he did not pay the money to the vendors. This clearly goes to show that he committed a breach of the contract and consequently the protection under Section 53-A of the Act does not arise. Evidently, the 1st defendant is also not in possession of the property. Therefore, the above circumstances clearly show that the defendant having committed the breach, refund of the consideration does not arise and the contract stipulates that only in case of default by the plaintiff, damages of Rs.15,000/- have to be given along with the consideration received. The judgment and decree passed by the learned Subordinate Judge is, therefore, not sustainable and when the 1st defendant has committed breach of the contract, the contract has been cancelled and the protection under Section 53-A of the Act is not available and he cannot continue in possession of the property and has to deliver the possession. It is also to be noted that the 1st defendant has been enjoying the properties even without performing the contract and has also alienated the property and consequently he cannot say that he suffered loss and cannot claim refund of the money as his enjoyment is unlawful prior to suit. Accordingly, the appeal is allowed and the judgment and decree of the lower Court is set aside and the suit of the plaintiff is decreed directing the defendants to deliver possession of the property to the plaintiffs and the lower Court shall determine the mesne profits from the date of suit on a separate application. The plaintiffs will be entitled to the costs throughout. ________________________ N.R.L.NAGESWARA RAO, J DATE: 03-11-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 861 of 1997 DATE: 03-11-2011 MR [1] (2002) 3 Supreme Court Cases 676