THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.1784 OF 2001 JUDGMENT: The defendants in O.S.No.664 of 1991 on the file of the court of Senior Civil Judge, Vijayawada are the appellants herein. The suit was filed for specific performance of the contract of sale dated 23-10-1988. The allegations in the plaint goes to show that the first defendant is the wife and defendant Nos.2 to 4 are sons of late Punyavanthula Venkata Satyanarayana Rao who is the brother of the fifth defendant. Originally the property was given to the fifth defendant by their father but subsequently it was given to the deceased SatyanarayanaRao. Late P.V.Satyanarayana Rao and fifth defendant have entered into an agreement of sale on 23- 10-1988 agreeing to sell the schedule property for a consideration of Rs.1,90,000/- and received a sum of Rs.60,000/- as an advance of sale consideration. The balance of sale consideration is agreed to be paid within a month by 22-11-1988. It was agreed that the vendor must obtain “E.C.” and “U.L.C” clearance and necessary permissions. The site also should be measured. As per the agreement, there is a mutual obligation to pay the interest @ 18 on the advance in case of refund or on the balance of sale consideration. The plaintiff has been always ready and willing to perform the part of contract and it has been postponed on the some pretext or the other. The said Satyanarayana Rao died leaving behind defendant Nos.1 to 4 as his legal representatives and the plaintiff also demanded and issued a legal notice on 14-10- 1991 to all the defendants calling upon to execute the registered sale deed. As the defendants have not complied with it, the suit was filed for specific performance. The defendant Nos. 1 to 4 filed a written statement contending that the agreement of sale is not true and it is hit by the principles of lis pendens as O.S.No.74 of 1986 was filed with regard to rights in the suit schedule property. There was collusion with the fifth defendant and the plaintiff; the minor share cannot be alienated. The suit is barred by time. Therefore, the defendants have pleaded for dismissal of the suit. The fifth defendant has filed a written statement supporting the agreement of sale and also pleading that O.S.No.74 of 1986 was filed by the son of one of the brothers of the defendant and the suit schedule property is also a subject matter. There is no cause of action to file the suit; the readiness and willingness as claimed by the plaintiff is not true. The suit is therefore liable to be dismissed. On the basis of the pleadings the following issues have been framed for trial:- 1. Whether the plaintiff is entitled for specific performance of contract? 2. Whether there is any privity of contract? 3. Whether the suit claim is barred by limitation? 4. Whether the suit claim is hit by doctrine of lispendens in view of O.S.No.74/86 on the file of I Additional Sub Judge, Vijayawada? 5. Whether the agreement is infructuous and impossible for performance for want of permission from District Court to alienate the minor estate? 6. To what relief? Later the following additional issue has been framed. “Whether the suit agreement is true, valid and binding on the defendants? On behalf of the plaintiff, PWs.1 to 3 are examined and marked Exs.A-1 to A-4. On behalf of the defendants DWs.1 to 4 are examined and marked Exs.B-1 to B-4. After considering the evidence on record, the learned Senior Civil Judge decreed the suit of the plaintiff and aggrieved by the said judgment the present appeal is filed. Now the points that arise for consideration are:- 1. Whether the agreement of sale pleaded by the plaintiff is true? 2. Whether the plaintiff is entitled for the relief of specific performance granted by the lower court? POINTS:- Evidently, defendant Nos.1 to 4 are not the executants of the document and the agreement is said to have been executed by the fifth defendant and his brother Satyanarayana Rao. As can be seen from Ex.A-1, the source of title of the vendor and the earlier dispossession in favour of the fifth defendant was clearly mentioned. In fact as per the terms of the agreement a sum of Rs.60,000/- was paid on the date of agreement i.e., 23-10-1988 and the balance of sale consideration of Rs.1,30,000/- is to be paid within one month i.e., 22-11-1988 and the balance of consideration if not paid shall carry interest @ 18%. The defendant Nos.1 to 4 are not the executants of the document but they have denied the agreement. Therefore, it is for the plaintiff to prove the same. In fact fifth defendant who is also a co-executant of the agreement was examined as DW.1. He is a Doctor practising at Vijayawada and according to him the sale agreement was entered into by him and his brother and Ex.A-1 was scribed by PW.3 and a sum of Rs.60,000/- was paid. His evidence discloses that his brother was suffering from cancer and was treated at Madras and the money received as advance was spent for his treatment. His evidence also goes to show that the husband of Pw.1 who was responsible for the transaction and negotiations requested to return the money as he was not in a position to pay the remaining balance consideration. It is also his evidence the original E.C was already handed over to the husband of PW.1 on 07-11-1981 itself. Therefore, he is the responsible witness and he has no adverse interest in the brother and from the nature of evidence available on record, the property seems to have been sold for the purpose of medical expenses of Satyanarayana Rao, that is the reason why a short time of one month was fixed for payment of balance of sale consideration amount. The evidence of PW.3 also proves the transaction. Therefore, it is quite clear that the suit agreement is a true one and executed by the deceased along with DW.1. The question before the court is whether the time is essence of the contract and as to whether the plaintiff was ready and wiling to perform the part of the contract. The law is well settled that in cases of sale of immovable property time though fixed may not be taken as an essence of the contract but it depends upon several circumstances. In this case evidently the deceased-Satyanarayana Rao seems to have sold the property as he was undergoing treatment. In fact from the evidence of DW.1, it is quite clear that the money which was received as an advance was spent for his medical treatment. According to the evidence of PW.1, her husband worked as DCTO and the money was available in the bank. It was admitted by PW.1 that the husband of first defendant was suffering from lung cancer, omitting of blood since October-1988 and she also aware that he will not survive for a longer time and ultimately he died in the month of March-1989. From her evidence, it is quite clear she did not issue any notice to the executant during the above period of five (5) months. She claims to have orally asked for a registration. It is not known as to how she has approached him when he was said to be at Madras undergoing treatment. The urgency of money for treatment is the reason as to why a short period of one month was fixed for payment of the balance sale consideration. In fact after the period of one month fixed under Ex.A-1, the plaintiff did not issue any notice on the deceased about his failure to produce the necessary certificates which are essential for registration of the document. The readiness and willingness was never informed to him or to the fifth defendant. Ex.A-2 legal notice was given by the plaintiff only on 13-10-1991 for which his reply Ex.A-8 was given. The fifth defendant also gave the Ex.A-9 reply. Therefore, from 23-10-1988 till the date of issuance of notice on 13-10-1991 there is nothing on record to show that the plaintiff was ready and willing to perform the part of contract. At least after the death of the deceased in March-1999 the plaintiff is expected to give a notice to the legal representatives calling upon them to execute the registered sale deed as per Ex.A-1 agreement and expressing the readiness and willingness. Therefore, for this period there is a vacuum in the conduct of the plaintiff about the readiness and willingness. It is therefore clear that the fixation of time for performance of contract for payment of the balance sale consideration as one month is an urgent and essential condition stipulated by the parties, in view of the urgent need of the deceased to attend to medical expenses. In fact Ex.B-1 to B-3 letters which were said to have been written by the husband of the plaintiff clearly goes to show that in the year 1989 there was a repeated request from him to refund the consideration of Rs.60,000/- as he was not having sufficient money to pay the balance of consideration and in fact Ex.B-2 clearly shows that there was a pressure on him also to pay the money. The allegations in Exs.B-1 to B-3 clinches the issue as to the intention of the plaintiff being not interested in proceeding with the sale transaction. DW.1 who is the responsible person and who is also a party to the agreement has filed these documents and to contradict these documents the husband of the plaintiff did not go into box. Therefore, the plaintiff was not having money and not interested in paying the balance of consideration and obtaining the regular sale deed. The lower court in para.12 of the judgment at page No.22 found that there was readiness on the part of the plaintiff but there was no willingness on her part to obtain a registered sale deed within the stipulated time as per the terms of Ex.A-1. Therefore, this finding of the lower court is sufficient to hold that the plaintiff will not be entitled to the discretionary relief of specific performance. The learned counsel for the respondent contends that time is not essence of the contract and the finding of the lower court that there is no willingness is not correct. He relied on the following decisions viz., Sukhbir Singh and others Vs. Brij Pal Singh and others ([1]), Motilal Jain Vs. Smt.Ramdasi Devi and others([2]), K.Sambasiva Rao Vs. P.Bangaru Raju([3]), K.Venkoji Rao Vs. M.Abdul Khuddur Kureshi([4]), and M.Satyanaryana Vs. G.Yelloji Rao and others([5]). As already stated above Exs.B-1 to B-3 clinches the issue and there is no reason to disbelieve the Exs.B-1 to B-3 documents. The finding of the lower court itself disentitles the plaintiff for the specific relief of enforcement of the contract. Probably the lower court may be considering the view of refund of consideration but as there was no stipulation for payment of interest on that it has gone for specific performance of the contract. But it is to be further noticed that even after the decree was passed by the lower court directing the plaintiff to deposit the balance sale consideration with 18% interest the plaintiff has deposited the same but for own reasons filed an application to permit her to withdraw the said amount and accordingly withdrawn the said amount. The law of specific performance does not allow a party to take undue advantage of the situation and shall not allow unfair attitude on the part of the plaintiff. The plaintiff having deposited the said amount should have allowed to be kept and there is no reason as to why the amount was withdrawn. This conduct of the plaintiff also disentitles for the relief of specific performance and therefore the decree of the lower court granting the relief of specific performance is not legal and sustainable. But however, the counsel for the appellants has stated that there is no prayer for refund of the advance of sale consideration. The defendants are willing to refund Rs.60,000/- received as an advance of sale consideration. Therefore, in view of the above circumstances the decree is passed for a refund of sum of Rs.60,000/- with interest @ 12% from the date of agreement (23-10-1988) till the date of decree and with subsequent interest @ 6% till date of realisation. Accordingly the points are answered. The judgment and decree of the lower court is liable to be set aside and instead the defendant Nos.1 to 4 are directed to refund a sum of Rs.60,000/- with interest @ 12% from the date of agreement (23-10-1988) till the date of decree and with subsequent interest @ 6% till date of realisation Therefore, the Appeal Suit is allowed. The judgment and decree of the lower court granting the relief of specific performance is set aside and instead a decree is passed for a refund of Rs.60,000/- with interest @ 12% from the date of suit agreement i.e., 23-10-1988 till the date of decree and with subsequent interest @ 6% till date of realisation against defendant Nos. 1 to 4. Each party to bear their own costs. _______________________ N.R.L.NAGESWARA RAO,J 25-03-2011 TSNR [1] AIR 1996 S.C.2510 [2] AIR 2000 S.C. 2408(1) [3] AIR 1985 A.P. 393 [4] AIR 1991 KARNATAKA 119 [5] AIR 1965 S.C. 1405(1)