THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.228 OF 2001 JUDGMENT: The defendant in O.S.No.123 of 1999 on the file of the court of Principal Senior Civil Judge, Kurnool is the appellant herein. The suit was filed for specific performance of contract of sale dated 22-04-1996. The allegations in the plaint goes to show that that the defendant is the owner of the suit schedule property and agreed to sell the same for a sum of Rs.1,35,000/- and received a consideration of Rs.24,000/- as an advance. As per the agreement, a sum of Rs.56,000/- is to be paid by 22-05-1996 and further an amount of Rs.55,000/- is to be paid by 22-04-1997 with interest @ 12% failing which the amount paid will be forfeited. With the above terms and conditions, an agreement was executed on 22-01-1996. Accordingly, the plaintiff paid a sum of Rs.50,000/- on 05-05-1996 which was endorsed on the agreement. Again on 13-05-1997 a sum of Rs.20,000/- was paid. As the defendant was not available on or before 22-04-1997 a sum of Rs.55,000/- could not be paid. The balance of sale consideration with interest was paid on 21-06-1997 and endorsed on the agreement. Inspite of repeated demands and a legal notice the defendant has not executed the registered sale deed and therefore the suit. The defendant filed a written statement admitting the execution of the sale deed on 22-04-1996 for a consideration of Rs.1,35,000/- and also receipt of Rs.50,000/- on 05-05-1996. The plaintiff has not paid the first instalment of Rs.56,000/- on or before 22-05-1996 and committed default. The payment of Rs.20,000/- by the plaintiff on 13-05-1997 is also admitted. The plaintiff has committed the breach of contract. The defendant disputed the payment of the balance with interest on 21-06-1997 and pleaded that this is a forged one. The plaintiff was never ready and willing to perform the contract and has no money to pay the balance of sale consideration even by the date of the suit. The plaintiff has not paid the balance of sale consideration to the defendant but borrowed a sum of Rs.46,000/- and executed a pronote on 22-04-1997; that the plaintiff has no capacity; that on the basis of the said pronote a suit was filed on the file of the court of II Additional Junior Civil Judge, Kurnool and therefore the plaintiff is not entitled for the relief of specific performance. On the basis of the above pleadings, the following issues have been framed for trial:- 1. Whether the time is essence of the contract? 2. Whether the plaintiff has committed default in payment of balance of sale consideration and if so, the advance of sale consideration paid by the plaintiff is liable to be forfeited? 3. Whether the plaintiff has committed any breach of contract? 4. Whether the plaintiff has paid balance of sale consideration along with interest of Rs.7,320/- on 21- 06-1997? 5. Whether the plaintiff was and is always to perform his part of contract? 6. Whether the plaintiff has borrowed a sum of Rs.46,000/- from the defendant which is subject matter in O.S.1266/99 on the file of II Additional Junior Civil Judge, Kurnool and if so, the plaintiff has no capacity to pay balance of sale consideration? 7. Whether the plaintiff is entitled for decree of specific performance\? 8. To what relief? On behalf of the plaintiff, PWs.1 and 2 were examined and marked Exs.A-1 to A-6. On behalf of the defendant no oral or documentary evidence was adduced. 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 plaintiff was ready and willing to perform the part of the contract and the payment dated 21-06-1997 under Ex.A-4 is true? 2. Whether the judgment and decree passed by the learned Senior Civil Judge is legal and sustainable? POINTS:- In this case the transaction is not disputed by the defendant. According to the case of the plaintiff, Ex.A-1 agreement of sale was executed for a consideration of Rs.1,35,000/-. The agreement is marked as Ex.A-1. The defendant does not dispute about the Exs.A-1, 2 and A-3. The dispute is only with regard to Ex.A-4 endorsement dated 21-06-1997 whereunder the balance of sale consideration was paid with interest and it is said to have been signed by the defendant and attested by PW.2. Though it was sought to be contended that time was essence of the contract, from the conduct of the defendant he never intended that time should be the essence of the contract since there was a stipulation for payment of interest over the balance of amount and infact the payment was also accepted earlier after the due date. Further the law is well settled that in cases of sale of immovable property, time is not generally regarded as an essence of the contract particularly so when interest was stipulated over the balance. The law is also fairly well settled that if the plea of the plaintiff about the part payment is not true then the relief of specific performance cannot be granted. The defendant is disputing the part payment endorsement under Ex.A-4. PW.2 who is an attestor on the Ex.A-4 specifically stated that in his presence the plaintiff has paid the balance amount with interest and he attested Ex.A-4 endorsement. He is said to be a native of Gargeyapuram and the endorsement was scribed by one Damodarayya. According to him, the plaintiff paid Rs.41,000/- with interest of Rs.7,320/-. He admitted that he has got dealings with the plaintiff and he is a close friend of him. He also stated that the plaintiff has borrowed a sum of Rs.46,000/- from the defendant and he is also one of the attestors on the pronote dated 22-04-1997. This fact elicited in the cross-examination of PW.2 which clearly goes to show that this witness is known to the defendant and he himself accepted him as an attestor on his pronote. Therefore, his evidence about Ex.A-4 transaction cannot be discarded. Merely because a pronote was executed for a certain sum in favour of the defendant, it does not mean that by the date of Ex.A-4 endorsement, the plaintiff has no money. It is not the plea of the defendant that as the plaintiff had no money by the date of execution of the pronote in his favour, he has cancelled Ex.A-1 agreement. Therefore, those two transactions have nothing to do with the capacity of the plaintiff or his readiness and willingness to perform the part of the contract by the plaintiff. The learned counsel for the appellant tried to contend that the signature on Ex.A-4 does not belong to the defendant and it is apparent even to a naked eye. He tried to demonstrate by the measurements of the signatures on Ex.A-4 with other signatures which are admitted by the defendant. It is to be borne in mind that the court will not generally take the onerous task of comparing the signatures since the signatures of a single person will be varying even if they are true and at all times they will not be consistent. Further more the arguments of the learned counsel for the appellant has no strength. The law is well settled that when there is an evidence of the person associated with the document and when it is acceptable, there is no need for the court to compare the signatures. In this case the evidence of PW.2 who is reliable and who is not interested in giving false evidence clearly establishes the fact that the defendant has signed under Ex.A-4 endorsement. Therefore much of the argument sought to be developed by the counsel for the appellant has no substance. Further more the learned counsel for the appellant contends that the evidence of Pw.1 cannot be believed since he has denied the signatures in the “plaint” and “vakalatnama” and therefore he cannot be believed. This argument is strange. The dispute in the case is with regard to signatures of the defendant on the Ex.A-4 endorsement. One fails to understand as to why the plaintiff should be confronted with the signatures on “plaint” or the “vakalatnama”. The contention advanced before the lower court that the plaintiff is not the person who has filed the suit or the person who entered into the agreement is not acceptable since it was not the plea of the defendant at all. The court has to take notice of the fact that the defendant having raised several contentions has not gone into the box to disprove any of the contentions raised by the plaintiff. Infact the defendant consciously avoided to go into the box by filing a memo in the lower court stating that since the plaintiff in his evidence denied the signatures on “plaint” and “vakalatnama”, no evidence is being adduced and the agreement is not enforceable. The reasons are obvious and the defendant instead of going into the box and subjecting himself to the cross examination wanted to defeat the suit on the flimsy and untenable grounds. Infact, it is the case of the defendant that the plaintiff has borrowed money from him and he has filed the suit O.S.No.1266 of 1999 and this identity of the plaintiff was also elicited in the cross examination of PW.2 and thereby there is no strength in the contention denying the signatures on “plaint” and “vakalatnama” by the plaintiff disproves the claim for specific performance. The defendant having opted out of the court to go into the box and having admitted Exs.A-1 to A-3 and Ex.A-4 being proved is bound by the decree of the lower court. There are absolutely no merits in the contentions advanced by the learned counsel for the appellant. Accordingly the points are answered. The appeal suit is therefore liable for dismissal with costs. In the result Appeal Suit is dismissed with costs. _______________________ N.R.L.NAGESWARA RAO,J 28-03-2011 TSNR