THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.1247 of 2010 JUDGMENT: The sole respondent filed O.S.No.11 of 2003 in the Court of Senior Civil Judge, Adhanki against the appellant for the relief of specific performance of an agreement of sale. It was pleaded that the appellant executed an agreement of sale on 21.11.2002 promising to sell two bits of land viz., Ac.0.83 cents and Ac.1.17 cents at the rate of Rs.65,000/- and Rs.50,000/- per acre respectively. Advance of Rs.35,000/- was said to have been paid. According to the respondent, the balance of consideration was required to be paid by 20.02.2003 and when the appellant refused to receive the same, he got issued a notice. Stating that no reply was issued to the notice nor any steps were taken by the appellant, the respondent filed the suit for specific performance. The appellant entered appearance and filed a written statement. He admitted the execution of the agreement of sale and receipt of advance. However, he pleaded that the respondent was not ready and willing to pay the balance of consideration and thereby, he lost the right to seek specific performance. He further stated that the advance paid by the respondent is liable to be forfeited. Certain other facts were also pleaded. The trial Court decreed the suit through judgment, dated 28.11.2006. The appellant filed A.S.No.37 of 2008 in the Court of District Judge, Ongole. The appeal was dismissed on 29.12.2008. Hence, this second appeal. Sri Nimmagadda Satyanarana, learned counsel for the appellant submits that the respondent himself sought time to pay the consideration, due to paucity of funds, and to cover up his inability to pay the balance of consideration, he got issued a notice, dated 17.02.2003, marked as Ex.A.2. He further submits that the appellant had demonstrated before the trial Court and the lower appellate Court that the respondent was not ready and willing to perform his part of contract and thereby incurred disability under Section 16 (c) of the Specific Relief Act. Taking the pleading of the parties into account, the trial Court framed two issues for its consideration viz., (1) Whether the plaintiff is entitled for the specific performance of agreement of sale dated: 21.11.2002 with consequential possession; and (2) Whether the plaintiff is entitled for permanent injunction as prayed for. On behalf of the respondent, P.Ws.1 to 4 were examined. Out of them, P.W.4 is the Advocate- Commissioner appointed by the Court. He filed the agreement of sale as Ex.A.1 and a copy of a notice got issued by him as Ex.A.2. On behalf of the appellant, D.Ws. 1 to 4 were examined and no documentary evidence was filed by him. The report of the Commissioner and plan submitted by him were taken on record as Exs.C.1 and C.2. The suit was decreed and in the appeal preferred by the appellant, the lower appellate Court framed only point for its consideration viz., whether the decree and judgment passed by the trial Court warrants any interference. The appeal was dismissed. The appellant did not dispute the execution of the agreement of sale-Ex.A.1. The only plea raised by him was that the sale deed could not be executed, because the respondent was not ready and willing to pay the balance of consideration and to comply with other conditions. If that were to be so, the respondent would not be entitled for the relief. The last date for payment of balance of consideration was 20.02.2003. The appellant could have accused the respondent of not being ready and willing to pay the balance of consideration, if only the amount was not offered before the due date or if the appellant got issued a notice requiring the respondent to pay the balance of consideration. The developments have occurred exactly in the opposite direction. Much before the due date for payment of balance of consideration, the respondent got issued Ex.A.2 on 17.02.2003. The appellant did not give reply to the said notice. The respondent filed the suit on 07.03.2003 i.e., hardly within 15 days from the last date for payment of consideration. It can safely be said that the instant case demonstrates one of the best instances of prompt pursuit of the matter by a person holding the agreement of sale. In the teeth of such undisputed facts, it was not open to the appellant to plead that the respondent was not ready and willing to perform his part of the contract. The trial Court and the lower appellate Court have taken correct view of the matter and no substantial question of law arises for consideration in this second appeal. Therefore, the second appeal is dismissed. There shall be no order as to costs. __________ 08.08.2011 JSU THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY SECOND APPEAL No.1247 of 2010 Date: 08.08.2011 JSU