THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.1045 of 2004 Date: 01-04-2011 Between: A.Damodar Reddy .. Appellant And B.Rukmanamma .. Respondent THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.1045 of 2004 JUDGMENT: The plaintiff in O.S.No.89 of 2002 on the file of the Principal Senior Civil Judge, Tirupati is the appellant herein. The suit was filed for specific performance of contract of sale dated 04.07.1998. According to the case of the plaintiff, the defendant agreed to sell the schedule property for a consideration of Rs.3,79,000/- and received a sum of Rs.50,000/- and the balance was agreed to be paid on or before 03.07.1999 and in spite of demands the defendant has been postponing the execution of the sale deed by producing the pass book and title deed. Hence, the suit. The defendant has filed written statement admitting the execution of the sale agreement and receipt of Rs.50,000/- towards earnest money. According to the defendant, time is the essence of the contract and the plaintiff did not pay the required money and the amount was forfeited and the contract is rescinded. On the basis of the above pleadings, the following issues have been framed for trial: 1. Whether the plaintiff is entitled for a specific performance of contract? 2. Whether the plaintiff is entitled for delivery of possession of schedule property in case he establishes the principal relief? 3. Whether the plaintiff is entitled to recover Rs.50,000/- in case the plaintiff failed to establish the principal relief of specific performance of contract? 4. Whether the time is essence of the contract as pleaded by the defendant? 5. Whether the defendant is entitled to forfeit the advance amount paid by the plaintiff? 6. To what relief, the plaintiff is entitled to? On behalf of the plaintiff, P.Ws.1 and 2 were examined and marked Exs.A-1 to A-4 and on behalf of the defendant, D.W.1 was examined and no documents were marked. After considering the evidence on record, the learned Principal Senior Civil Judge, Tirupati dismissed the suit of the plaintiff and aggrieved by the said judgment and decree dated 30.01.2004, the present appeal is filed. Heard learned counsel for the appellant. None appeared for the respondent. The points that arise for consideration are: 1. Whether the plaintiff is entitled for the specific performance of the contract of sale or in the alternative for refund of the advance money? 2. Whether the judgment and decree passed by the learned Principal Senior Civil Judge, Tirupati is legal and sustainable? POINTS 1 and 2: There is no dispute about the fact that the contract of sale was entered into between the parties under Ex.A-1 and a sum of Rs.50,000/- was paid and the balance was agreed to be paid on or before 03.07.1999. The lower Court after considering the evidence on record came to the conclusion that time is the essence of the contract and in fact, there is no readiness and willingness to perform the part of the contract by the plaintiff and dismissed the suit. Generally, in cases of sale of immovable property, time is not the essence of the contract, provided there are other circumstances suggesting that the parties intended otherwise. One such circumstance is generally the payment of interest over the balance of sale consideration. The term in the contract for cancellation in case of failure cannot be viewed lightly. The law is also well settled that the burden is on the plaintiff to prove that the plaintiff was always ready and willing to perform the part of the contract. It is to be noted that when the prices of the immovable property are raising high, a party to the contract by paying small portion of the money and retaining the major portion cannot be given undue advantage to get the contract enforced after several years by paying the same quantum of consideration. Evidently, no notice was given within the stipulated period to the defendant demanding the execution of the sale deed after receipt of the consideration. The learned counsel for the appellant tried to contend that the pass books are necessary and they were only issued in the year 2001- 2002 and the fault is, therefore, with the defendant. In fact, at no point of time, the plaintiff has demanded the defendant to produce the title deeds and in fact that was not a condition in Ex.A-1. According to the case of the plaintiff, the defendant was bed-ridden and attacked with Paralysis and if such is the case, there should be more anxiety for the plaintiff to complete the sale transaction. Therefore, the relief of specific performance was rightly negatived by the lower Court. The decision reported in the case of CHAND RANI v. KAMAL RANI[1] relied on by the learned counsel for the appellant has no relevancy to the facts of this case in view of the positive evidence available on record about the delay on the part of the plaintiff. However, since an issue is framed with regard to the relief of the plaintiff for refund of the advance money, even though the condition in agreement Ex.A-1 clearly shows that the defendant is entitled for forfeiture of the amount. The Court has to see whether it will be equitable or not. When the relief of specific performance, which is discretionary, is rejected on the ground of lapses on the part of the plaintiff, it will not be equitable to allow the defendant to retain the advance money and especially when no loss or injury is proved. Therefore, from the above circumstances, I feel that the lower Court should have granted the relief of refund of sale consideration of Rs.50,000/- when an issue has been already framed in the alternative. Accordingly, the judgment of the lower Court is set aside and a decree is passed for recovery of Rs.50,000/- (Rupees fifty thousand only) with interest @ 12% per annum from the date of suit till the date of decree and @ 6% per annum from the date of decree till the date of realization. Accordingly, the appeal is allowed. No costs. ________________________ N.R.L.NAGESWARA RAO, J Date: 01-04-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.1045 of 2004 Date: 01-04-2011 MR [1] (1993) 1 Supreme Court Cases 519