IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD FRIDAY, THE ELEVENTH DAY OF MARCH, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CITY CIVIL COURT APPEAL No. 112 OF 2001 BETWEEN: Hafees Fatima …APPELLANT AND Mohammed Nauman Sulaiman …RESPONDENT CITY CIVIL COURT APPEAL No. 125 OF 2001 BETWEEN: Mohammed Nauman Sulaiman …APPELLANT AND Hafees Fatima …RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CITY CIVIL COURT APPEAL Nos. 112 AND 125 OF 2001 COMMON JUDGMENT: Both the appeals arise out of a Judgment in O.S.No. 58 of 1994 on the file VII Senior Civil Judge, City Civil Court, Hyderabad. The suit was filed for specific performance of the contract of sale and for symbolic delivery of possession of the property. 2. The allegations in the plaint go to show that the defendant is the owner of the schedule property and agreed to sell the property for a consideration of Rs.2,60,000/- and entered into an agreement of sale on 05-11-1992 having received a payment of Rs.50,000/-. Six months time was fixed for execution of the registered sale deed and the defendant also promised to give the link documents. The plaintiff has been consistently demanding the defendant to receive the money and execute the sale deed, but the defendant has been postponing on some pretext or the other. On 25-05-1993 as the defendant approached the plaintiff for his need, a sum of Rs.37,000/- was paid and it was acknowledged and again a sum of Rs.73,000/- was paid on 01.08.1993, which was also acknowledged on the agreement. On 15.09.1993 a sum of Rs.30,000/- was paid and it was also acknowledged on the agreement. In spite of the repeated demands, the defendant did not execute the registered sale deed and demanding extra amount of Rs.1,00,000/-, for which the plaintiff did not accept. Therefore, a legal notice was sent to the defendant, but it was returned. As per the agreement, the plaintiff is continuing as a tenant and the defendant has to forego a rent. Hence the suit. 3. The defendant filed a written statement contending that the agreement of sale, dated 05-11-1992 is true and the time has fixed for six months. The readiness and willingness pleaded by the plaintiff is disputed. The plaintiff did not pay the balance amount within six months and when the period is to expire, at the request of the plaintiff, time was extended for two months i.e., up to 01-08-1993 and it was specifically endorsed that the agreement will be cancelled if the balance amount of Rs.1,00,000/- is not paid. The plaintiff did not make any payment and he was not interested in proceeding with the agreement and the defendant was ready to refund the amount, for which, the plaintiff through her husband informed that after securing the alternative property, the money will be taken back. The payment of consideration of Rs.73,000/- and Rs.37,000/- is admitted, the payment of Rs.30,000/- on 15.09.1993 is denied and it is pleaded to be fabricated endorsement. The claim that the plaintiff has demanded extra amount is not correct. The agreement that the rent need not be paid by the plaintiff is also incorrect and in fact, rent control proceedings were initiated. Therefore, the defendant pleaded for dismissal of the suit. 4. On the basis of the above pleadings, the following issues have been framed by the trial court, for trial: 1) Whether the plaintiff is entitled for the relief of specific performance of the agreement of sale dt.05.11.1992 and possession thereof in respect of the suit schedule property as prayed for? 2) Whether the suit is barred by limitation? 3) To what relief? 5. On behalf of the plaintiff PWs. 1 and 2 were examined and marked Exs.A-1 to A-8. On behalf of the defendant DWs.1 and 2 were examined, and marked Exs.B-1 to B-4. 6. After considering the evidence on record, the learned VII Senior Civil Judge, City Civil Court, Hyderabad, rejected the claim of the plaintiff for specific performance, but however, the defendant is directed to refund an amount of Rs.1,60,000/- to the plaintiff with interest at 18% per annum from 01.08.1993. Aggrieved by the said judgment and decree, CCCA No.112 of 2001 was filed by the plaintiff and CCCA No.125 of 2001 was filed by the defendant questioning the direction to pay the interest. 7. The points that arise for consideration are: 1) Whether the plaintiff is entitled for the specific performance of the contract of sale? 2) Whether the judgment and decree passed by the learned VII Senior Civil Judge, City Civil Court, Hyderabad, in ordering the refund of the sale consideration along with interest at 18% per annum is legal and sustainable? 3) To what relief? 8. POINTS: Evidently, the execution of the agreement of sale and also the receipt of part of the consideration by the plaintiff is not in dispute. Ex.A-1 is the agreement of sale, dated 05-11-1992. The consideration said to have been paid on the date of agreement is Rs.50,000/-. It was specifically agreed between the parties that the balance amount shall be paid within six months at the time of registration and the vendor shall produce all the documents. After this agreement, the payment under Ex.A-3 was made on 25-05-1993 to a tune of Rs.37,000/-, which is evidently beyond the period of six months. The fact that subsequently, on 01-08-1993 a sum of Rs.1,00,000/- was paid and the balance amount was agreed to be paid on or before within a period of two months i.e., by 01-08-1993 is not in dispute. The disputed payment is under Ex.A-2, which is said to be dated 15-09-1993 for Rs.30,000/-, which is said to have been given to the defendant. According to the case of the plaintiff, by virtue of this endorsement and payment, the time fixed by 01-08-1993 is not treated as a condition between the parties and therefore, time is not the essence of the contract. The lower Court on appreciation of the evidence found that Ex.A-2 is a fabricated one and not a genuine one and consequently the relief of specific performance cannot be granted. 9. The learned counsel for the plaintiff/appellant contends that the reasoning given by the lower Court in rejecting Ex.A-2 is not proper. The suit was said to have been filed on 25-01-1994. Therefore, the question is as to whether the plaintiff has committed breach of the agreement and whether the plaintiff was ready and willing to perform the part of the contract. As already stated in a suit for specific performance, the plaintiff has to plead and prove the readiness and willingness to perform the contract. In this case, the plaintiff is in occupation of the property as a tenant according to her. It was also specifically pleaded that there is no liability to pay the rent. This is not a condition, which was evidently not incorporated in the agreement. Therefore, it is quite clear from the own pleading of the plaintiff that the parties intended that the money should be paid at the earliest point of time. In fact, as can be seen from the pleading, the sum of Rs.37,000/- was paid only when the defendant is said to have approached that he is badly in need of the money and accordingly, the said amount was paid on 25-05-1993. If really the plaintiff was ready and willing to perform the part of the contract and pay the entire sale consideration, there is no reason as to why as on that date the amount was not paid. It is to be mentioned that this payment is also after a period of six months as originally fixed under the agreement. During this period of six months, the plaintiff has not issued any notice calling upon the defendant to produce the required documents and to receive the money. 10. The theory that the defendant demanded extra amount of Rs.1,00,000/- also appears to be not believable. The plea of readiness and willingness is also disproved by the above fact and also by the fact that the amounts were paid at the convenience of the plaintiff. It is also to be noted that the payment endorsement of Rs.73,000/- does not show the date of payment as the said amount was paid on 01-08-1993. The plaintiff shows that this was dated 01- 08-1993. This endorsement is marked as Ex.A-5. But, according to the evidence of DW-1, this payment of Rs.73,000/- is in June or July, 1993, which appears to be probable. If the payment is on 01-08-1993, there is no need to have an endorsement to the effect that the balance of Rs.1,00,000/- shall be paid before 01-08-1993, failing which, the agreement will be cancelled. Even apart from it, after 01-08-1993 only a sum of Rs.30,000/- was paid and till the date of filing of the suit, the amount was not tendered nor deposited in Court. If really the plaintiff was ready and willing to perform the contract, there is no reason as to why immediately after Ex.A-2, no legal notice was given. The non-availability of the defendant appears to be improbable as he is residing in the same locality. The question of the failure of the defendant in producing the title deed and consequently the registration could not be done cannot be believed since there is no dispute on the title of the defendant as the defendant is the admitted owner and the plaintiff claims to be a tenant of the premises. The lower Court on appreciation of the evidence clearly found that Ex.A-2 is a fabricated document. The lower Court also found that the parties have mutually made the time as essence of contract by Ex.A-5 endorsement. 11. Therefore, from the material available on record, even under the agreement six months time was fixed, the amount was not paid and a sum of Rs.37,000/- was paid only when the defendant approached the plaintiff and not a case of plaintiff tendering the money and the subsequent amount of Rs.73,000/- was also paid at the request of the defendant only. The circumstances clearly go to show that the readiness and willingness pleaded by the plaintiff is hollowed and on the other hand, as rightly found by the lower Court, the plaintiff has come to the Court with unclean hands and has manipulated the payment endorsement, which was disbelieved. For that reason also, the plaintiff will not be entitled for the equitable relief of specific performance. It is useful to note that when the trial Court after considering the evidence on record has exercised its discretion in refusing the relief of specific performance. The appellate Court cannot substitute its discretion unless there are compelling circumstances. The conduct of the plaintiff in this case does not require any indulgence of this Court to substitute the discretion of the lower Court in refusing specific performance and therefore, consequently the appeal filed by the plaintiff deserves to be dismissed. 12. So far as the appeal filed by the defendant is concerned, the lower Court has ordered refund of the money even though there is no prayer for refund, which is now considered to be mandatory under Section 22 of the Specific Relief Act. The learned counsel for the defendant fairly conceded that he is not interested in retaining the said money and the money has been already deposited. However, his grievance is that direction to pay interest at 18% per annum is unwarranted when the plaintiff has committed the breach and continuing in possession of the property even without paying the rent. I find sufficient force in the contention of the counsel for the defendant. The plaintiff has taken a specific plea that he is not liable to pay the rent. One fails to understand as to how the rent is not payable even without paying the sale consideration. It is one of the conducts of the plaintiff, which is unfair. Therefore, evidently, the plaintiff was enjoying the property without paying rents to the real owner. There are laches disentitling for the relief of specific performance. Therefore, in view of the above circumstances, while ordering the refund of the consideration directing payment of interest at 18% per annum to a person, who is enjoying the property without paying the rents, is unwarranted, onerous and not according to law. Therefore, so as far as the liability of the defendant to pay interest on the amount of Rs.1,60,000/-, which was ordered to be refunded is concerned, the judgment of the lower Court is liable to be set aside and accordingly, CCCA No.125 of 2001 filed by the defendant is allowed. The defendant is to refund the amount of Rs.1,60,000/- without any interest. Accordingly, points are answered. 13. In the result, CCCA No. 112 of 2001 is dismissed. CCCA No.125 of 2001 is allowed, and the defendant is to refund the amount of Rs.1,60,000/- without any interest to the plaintiff. Each party shall bear their own costs. ________________________ N.R.L.NAGESWARA RAO, J Date: 11-03-2011. INL