THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NO.346 OF 2001 JUDGMENT: The plaintiff in O.S.No.478 of 1997 on the file of the court of Additional Senior Civil Judge, Tirupati is the appellant herein. The suit was filed for specific performance of agreement dated 14- 11-1994. The case of the plaintiff is that the defendant is the owner of the schedule property consisting in four plots and agreed to sell for a consideration of Rs.1,95,750/- on 14-11-1994 and received a sum of Rs.50,000/- and executed an agreement of sale and the balance of sale consideration is to be paid on or before 13-03-1995 and there is no stipulation as time is the essence of the contract. At the time of entering into the agreement of sale, the defendant has shown a road on the south- west corner from the layout, though the same was shown in the layout plan, it never existed. The plaintiff is willing to perform the part of contract and demanded the defendant to provide the road. The defendant has not provided the same and therefore a notice was given by the plaintiff, for which the defendant gave a reply notice with untenable allegations and therefore the suit was filed for specific performance of the contract. The defendant has filed a written statement admitting the sale transaction and also receipt of Rs.50,000/- towards consideration and execution of the agreement on 14-11-1994. The contention of the plaintiff is that a road was shown but it did not exist is not correct and in fact the husband of the plaintiff has visited the property and found the road and thereafter only the agreement was entered into. As per the terms of the agreement, the amount has to be paid by 13-03-1995 failing which the contract is not enforceable and the defendant will be entitled to forfeit the sum of Rs.50,000/-. It was also further averred that the property was sold to one M.Gopal for a valid consideration on 15-12-1997 for a sum of Rs.2,10,000/- and possession was delivered. Therefore, the plaintiff is not entitled for the relief. On the basis of the above pleadings, the following issues have been framed for trial. 1. Whether the plaintiff is always ready and willing to perform his part of contract? 2. Whether the defendant sold the property to one M.Gopal under an agreement of sale dated 15-12-1997 for valid consideration? 3. To what relief? On behalf of the plaintiff, PWs.1 to 3 were examined and marked Exs.A-1 to A-5. On behalf of the defendant, no oral or documentary evidence was adduced. After considering the evidence on record, the learned Senior Civil Judge dismissed the suit. Now the points that arise for consideration are:- 1. Whether the plaintiff is entitled for specific performance of the contract dated 14-11-1994? 2. Whether the time is the essence of the contract and the plaintiff was ready and willing to perform the contract? 3. Whether the judgment and decree passed by the learned Senior Civil Judge is legal and sustainable? POINTS:- There is no dispute about the fact that there was a valid contract between the plaintiff and the defendant on 14-11-1994 under Ex.A-1 whereunder a sum of Rs.50,000/- was paid and the balance is to be paid by 13-03-1995. According to the case of the plaintiff, on the date when the agreement was entered into, in the layout an approach road was shown but in fact it was not existing and the plaintiff even before the stipulated date approached the defendant and demanded to provide the road and to get the sale deed registered. In fact, as can be seen from the allegations in the plaint and the evidence of PW.1, the defendant showed a plan and after the agreement he visited the suit land and verified. As can be seen from the allegations in the Ex.A-2 legal notice, the plaintiff was ready with the balance of sale consideration before 13-03-1995 and asked the defendant to provide the road. This fact was denied by the defendant. On the other hand, in the Ex.A-3 reply notice given by the defendant, it was mentioned that even prior to 13-03-1995 the defendant was requesting the plaintiff to pay the money and the plaintiff has been postponing the same. Therefore, from these allegations it is quite clear that prior to 13-03-1995 both the plaintiff and defendant are in contact with each other. The question before the court is whether the plaintiff was ready and willing to perform the contract prior to 13-03-1995? This is a question of fact which has to be determined only on the basis of the evidence to be adduced by both the parties. When PW.1 was examined and has sworn the above facts, to discredit his testimony the evidence of the defendant alone is material but the defendant has not gone into the box. Further more, the dispute is with regard to providing of a road, which is said to have been existing but not there. On this also there is an evidence of PW.1 alone and the defendant has asserted that before the sale agreement PW.1 has visited and was satisfied with the existence of the road. This fact was denied by the PW.1 and on the other hand only after the agreement he visited the site and found that there is no road. Therefore, this is also a question of fact, which is to be disproved from the evidence of defendant alone. But when these two assertions are there about the readiness and willingness on the part of the plaintiff and also the non-discloser of a fact by the defendant, there is no evidence on his side to dispute the same. Further more, in the case of a contract of sale time is not generally treated as an essence of the contract when the plaintiff is ready and willing to perform his part of the contract, but some superficial events about the readiness is pleaded by the plaintiff. Therefore, merely because, Ex.A-1 term contained that by 13-03- 1995 the amount is to be paid, failing which the contract stands cancelled cannot be taken as a final in view of the positive evidence of PW.1 about the preparedness and willingness to perform the contract. The lower court has therefore, not considered the evidence of PW.1 and the pleadings and the nature of burden of proof to be discharged by both the parties. The layout which is said to have been given is also not filed before the court. If really the defendant has approached the plaintiff from February 1995 onwards for due performance of contract and even if a contract is to be avoided for non-performance by the plaintiff, a notice would have been given, but no such notice was given by the defendant. Therefore, from all the above circumstances, I have no hesitation in holding that the dismissal of the suit by the lower court, without there being evidence on the side of the defendant cannot be sustained. There is sufficient material to show that the plaintiff was willing to abide by the contract as per the terms of Ex.A-1 contract. The question before the court is whether the matter has to be remanded for giving an opportunity to the defendant to adduce evidence. Evidently, in 1997 the property was said to have been sold to some third parties and they are in possession of the property. At this stage, the decree for specific performance appears to be inequitable and will not work out for the remedies of the plaintiff since the subsequent alienees are not parties to this suit. Therefore, though the plaintiff as per the agreement may be entitled to the specific performance I feel that specific performance decree cannot be granted under Section 21(2) of the Specific Relief Act, 1963, instead a compensation of Rs.50,000/- is to be paid for breach of the contract, which is the amount that has been received by the defendant as an earnest money from the plaintiff. Accordingly, the points are answered. Therefore, the Appeal Suit is allowed. The suit of the plaintiff is decreed for a sum of Rs.50,000/- to be paid by the defendant from the date of suit with interest @ 12% per annum till the date of decree and with subsequent interest @ 6% till date of realization. Both parties shall bear their own costs in the lower court and in this appeal. _______________________ N.R.L.NAGESWARA RAO,J 10-02-2011 TSNR