THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.C.C.A. No.87 OF 2001 & C.C.C.A. No.156 OF 2001 COMMON JUDGMENT: Both appeals arise out of the judgment in OS No. 623 of 1997 on the file of the Court of IV Addl. Judge, City Civil Court Hyderabad. The suit one was filed for specific performance of contract of sale dated 26-12-1991 with regard to scheduled house property. The allegations in the plaint go to show that defendant is the owner of the property and she intended to sell the schedule property for her necessities and received a sum of Rs.25,000/- on 24-12-1991 and thereafter executed the agreement of sale on 26-12-1991 @ Rs.1686/- per Square Yard and the total consideration is Rs.1,65,378/-. It was also stipulated in the agreement that in case of any delay or dispute, the matter shall be settled between the parties and time shall be extended. The defendant has not taken any steps as agreed in the agreement to vacate the premises and a legal notice was issued on 22-03-1992 demanding the defendant to get her son and daughter-in- law vacated from the premises and informing that the plaintiff is ready and willing to perform her part of contract within the stipulated date i.e. 31-03-1992. The defendant gave a reply notice on 30-03-1992 stating that there was no condition to deliver the vacant possession of the property. The plaintiff also issued a notice on 04-04-1992 demanding the defendant to deliver the possession and the plaintiff paid a sum of Rs.40,228/- on 03-09-1992 which was duly acknowledged. Thereafter, a sum of Rs.50,000/- was paid on 24-11-1992. The defendant received a sum of Rs.1,15,228/- but has been postponing to execute the sale deed as per the terms. Hence the suit. The first defendant filed a written statement admitting the agreement of sale but contending that the contention of the plaintiff about the condition of delivering vacant possession is not proved. It was also further pleaded that xerox copy of agreement of sale filed is not true copy of the original. In the original agreement of sale, it was agreed to sell the land @ Rs.1686/- per Sq.Yard and the building valuation to be calculated separately and to be mutually agreed by the plaintiff and the defendant. But the plaintiff got issued the notice contrary to the agreed terms of contract. The time was fixed as 31-03-1992 and the plaintiff failed to pay the money. Since she had no money, the payments were not made within time. It was further pleaded that the husband of the defendant by name Narsappa had entered into another agreement of sale dated 26-12-1991 in favour of the husband of the plaintiff with regard to the house abutting the house of the plaintiff and a sum of Rs.40,228/- was made towards that agreement. So also a sum of Rs.50,000/- was received on 24-11-1992 on behalf of the husband of the defendant. Therefore, according to her except the amount of Rs.25,000/- she did not receive the amount. The alleged receipts and endorsement pleaded by the plaintiff are not true. After filing the suit, the plaintiff died and her legal representatives were brought on record as plaintiff No. 2 to 4. The defendants 2 to 4 who are children of the first defendant came on record contending that the alleged agreement is a nominal one. The first defendant is not the owner of the suit schedule property and she cannot alienate the property. The property is the joint family property acquired totally by joint family funds. The defendants 2 to 4 filed O.S.1760/1986 against first defendant and others and an injunction was obtained against first defendant and therefore the present suit is not maintainable. On the basis of the above pleadings, the following issues have been settled for trial. 1. Whether the plaintiff is entitled for the relief of specific performance as prayed for? 2. Whether the plaintiff is entitled for the relief of vacant possession of suit property? 3. To what relief? On behalf of the plaintiffs, PWs 1 to 3 were examined and marked Exs.A-1 to A-14. On behalf of the defendants DWs 1 and 2 were examined but no documents were marked. After considering the evidence on record, the learned Judge did not grant the specific performance and on the other hand passed a decree for refund of a sum of Rs.1,15,228/- received by the first defendant. Aggrieved by the refusal of the decree for specific performance, the plaintiffs have filed CCCA No. 87/2001 and questioning the decree for refund of the consideration, the first defendant has filed the appeal CCCA No. 156/2001. Now the points that arise for consideration are:- 1) Whether the agreement of sale dated 26-12-1991 is enforceable and the payments pleaded by the plaintiff are true? 2) Whether the plaintiff is entitled for specific performance of the contract of sale? 3) Whether the judgment and the decree of the lower court in granting the refund of money received by the first defendant is legal and sustainable? POINTS:- The parties are referred to as arrayed in the suit. There is no dispute about the fact that an agreement of sale was executed on 26-12-1991 whereunder the first defendant has agreed to sell the suit schedule property and a sum of Rs.25,000/- is said to have been received two days earlier. It is also not in dispute that the balance of sale consideration has to be paid on or before 31-03-1992 and in case of failure the time for performing the contract can be extended by mutual consent and in writing. The first defendant in the written statement asserted that the suit schedule property belongs to her and she executed the agreement of sale Ex.A-1. She has disputed the payments under Exs.A-2 and A-3. Ex.A-4 is the receipt passed on 24- 12-1991 about receipt of Rs.25,000/- before the execution of Ex.A-1. The contention of the first defendant that what was agreed to be sold under Ex.A-1 is the site and separate valuation has to be given for the structures is untenable in view of the specific allegations in Ex.A-1 showing that the contract was to sell the house and the valuation is fixed @ 1686/- per square yard. Even in Ex.A-4 it was specifically mentioned that what was agreed to be sold was the house for a sum of Rs.1,65,228/- and a sum of Rs.25,000/- was received. Therefore, in view of the above fact, it is not open to the defendant to contend that what was agreed to be sold is only the site and not the building. It is also not in dispute that initially the time was fixed for performance of the contract as 31-03-1992 and even before the time has expired, the first plaintiff got issued a legal notice Ex.A-5 dated 22- 03-1992 for which a reply notice was given on 30-03-1992 by the first defendant. In Ex.A-5 a condition was insisted by the first plaintiff that the first defendant has agreed to vacate the tenants from the premises and that they are not vacated and therefore the first defendant was called upon to receive the balance of consideration and get the tenants vacated and deliver possession of the property. The contention under Ex.A-6 reply is that the said notice was issued only to gain time by imposing a condition as it was not there in the agreement and the demand for vacant possession after evicting the tenants is not proper. Therefore, before the stipulated time as against the terms in the contract, the first plaintiff has issued a notice for the vacant delivery of the possession. The first plaintiff got issued another notice dated 04- 04-1992 repeating the earlier allegations and also execution of another agreement of sale in favour of the first defendant and her husband and it was further insisted that the property is to be measured and the correct measurements will be incorporated in the sale deed and the first defendant has not done so. Therefore, a further defence was made in this notice about the measurements which were not mentioned in the agreement of sale or in the earlier notice. Subsequently, what happened was evidently a sum of Rs.40,228/- was paid on 03-09-1992 and receipt was marked as Ex.A-2 and the first defendant admits the same and on 24-11-1992 the first plaintiff paid a sum of Rs.50,000/- and the first defendant admits the receipt Ex.A-3. The contention of the first defendant was that these two documents were part payments towards another agreement of sale in favour of her husband. But a perusal of these two receipts Exs.A-2 and A-3 belies the contention of the first defendant. After 24-11-1992 the first plaintiff has not moved further and it was only on 20-05-1993 a notice was issued by the first defendant herself whereunder the two payments under Exs.A-2 and A-3 towards Ex.A-1 agreement were admitted. It was further pleaded that time was orally extended up to November-1992 and thereafter the first plaintiff has not come- forwarded and as such the agreement is cancelled. The learned counsel for the plaintiff seriously contends that the first plaintiff has paid a substantial amount and the plea of the defendant denying the payments under Exs.A-2 and A-3 and claiming that they were paid towards agreement of her husband is false and it was only the first defendant that has committed the breach of contract and therefore the lower court should have taken into consideration the above facts and decreed the suit for specific performance. It is also his contention that merely because defendants Nos.2 to 4 have filed a suit for injunction or partition, the first defendant cannot avoid the liability. So far as the suit said to have been filed by defendant Nos.2 to 4 is concerned, there is no document filed on either side. In a suit for specific performance of contract of sale, it is well settled that the plaintiff has to show that he is always ready and willing to perform his part of contract as per the terms. Evidently, by 31-03- 1992, the balance amount has to be paid and before that and subsequently the first plaintiff has come up with a notice of enforcement of some conditions which are not there in the original agreement Ex.A-1. Evidently, there is no condition for vacant delivery of possession of the property before the registration of the document and there is also no question of any measurements to be taken as the contract of sale was for a fixed sum. Therefore, there is lack of readiness and willingness and the fact that the further payments were made partly after six (6) months under Ex.A-2 and two months thereafter under Ex.A-3 clearly goes to show that the first plaintiff was not having money. But, however, it is not in dispute that the first defendant has received the money and extended the time. The question is as to whether equitable relief of specific performance can be granted or not. The lower court found and exercised discretion that in view of the several circumstances available on record, the decree for specific performance is difficult to be passed particularly so when defendant Nos.2 to 4 are raising a dispute with regard to title of the first defendant in the property. Mere assertion of right by the first defendant itself is not sufficient when it is disputed by defendant Nos.2 to 4. The next question is whether the decree of the lower court in refunding the amount paid by the first plaintiff alternatively is legal. The counsel for the defendants contends that there is no alternative prayer in the plaint for refund of the amount paid and under Section 22 of the Specific Relief Act,1963 it is very much necessary that there should be a plea and in the absence of such a plea, the refund of the consideration cannot be granted. There can be no dispute about the legal position under Section 22 of the Specific Relief Act,1963. But, however, in this case under Clause No.6 the parties have contemplated the consequence of the failure of the contract and Clause No.6 is as follows:- “For any reasons if the vendor failed to register the plot within the stipulated period and similarly for any reasons if the PURCHASER fails to pay the sale consideration within the stipulated period either party agreed to indemnify each other to an extent of double the advance received or paid vice versa.” Therefore, a reading of the above Clause clearly goes to show that both parties have agreed to indemnify the other in case of default. Therefore, in view of the specific contract between the parties, the failure to plead for refund of the consideration in the alternative will not disentitle the plaintiffs for refund of the consideration. Evidently, in this case the contract has failed due to the fault of both the parties and both parties have5 taken stand against the terms of the contract and without any penalty the refund of the consideration as ordered by the lower court cannot be faulted. So also the refusal of relief for specific performance also cannot be said to be illegal. Therefore, there are no merits in the appeals and both appeals are liable to be dismissed. Accordingly, both appeals are dismissed. Each party is directed to bear its own costs. _______________________ N.R.L.NAGESWARA RAO,J 09-08-2011 TSNR