THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.C.C.A.25 OF 2002 JUDGMENT: This appeal is filed against the judgment and decree in O.S.No.1033 of 1994 on the file of the court of V Senior Civil Judge, City Civil Court, Hyderabad, by the defendant. The suit is one filed for specific performance of contract. The suit was originally instituted for an injunction and subsequently sought the additional relief of specific performance of the contract. The allegations in the plaint in brief are as under:- The plaintiff is the tenant of the Mulgi bearing No.4-5-474 of one Smt.Narasamma since last 30 years and the same was purchased by the defendant and thereafter some differences arose and at the instance of the elders, the defendant agreed to sell the suit schedule property which is ground + first and second floors on 26-01-1994 for a consideration of Rs.4,10,000/- and in instalments a sum of Rs.2 lakhs was paid and the balance amount has to be paid on the date of registration fixed by the end of August 1994. At the time of agreement, the defendant has suppressed the material fact of the proposal for widening of the road by Hyderabad Urban Development Authority (HUDA) in which case half of the suit property will be lost. As such a notice was given on 30-06-1994 calling upon the defendant to settle the issue with HUDA but the defendant did not do anything. The defendant was threatening to dispossess the plaintiff. Further more, the defendant has no right what-so-ever to demand the entire sale consideration when the schedule property is the subject matter of acquisition and the defendant has to deduct the amount of sale consideration of balance payable towards the land acquired by the HUDA. After filing the suit for injunction, by virtue of an amendment, the plaintiff pleaded that the plaintiff was always ready and willing to pay the balance of consideration in case if the defendant deducts and forgo the cost of the land which is being acquired by HUDA in road widening and accordingly issued a notice. A further claim was made that in case the defendant failed to register the land, the amount of Rs.2 lakhs has to be paid with interest @ 12% p.a.; if the land is available as per the agreement, the defendant has to register the available land. Since the defendant has not performed the part of contract, the suit was filed for specific performance of contract as per the contract and in case it could not be performed to refund the amount of Rs.2 lakhs with interest @ 12% and for an injunction. The defendant has filed a written statement and also made a counter-claim. Most of the allegations in the plaint are disputed. It was pleaded that the building bearing municipal No.4-5-473 and 474 comprised a shop on the southern side and passage on the northern side. The northern side passage is the way to first and second floor. The plaintiff was the tenant of the previous owner Narasamma in the southern side shop on the ground floor of the building. Smt.Bhagirathi Bhai purchased the property on the southern side from Narasamma and the tenancy attorned. Earlier, the plaintiff filed a suit against Narasamma claiming a right of passage. Subsequently, the northern side passage portion and first and second floors were purchased by the defendant and the defendant’s mother-in-law Smt.Bhagirathi Bhai purchased the southern side shop which the plaintiff was tenant from Narasamma. The plaintiff agreed to vacate the southern side shop and agreed to purchase the northern side ground floor portion and the first and second floors existing thereon. The agreement of sale was executed on 26-01-1994. Time is the essence of the contract. The plaintiff vacated the southern side shop and the plaintiff made some alterations in the northern side shop. The plaintiff is not ready and willing to pay the balance of sale consideration and gave a false notice suppressing the facts against the defendant. The plaintiff who was carrying the business in the premises on the southern side would have known better the scheme of the road widening and the consequential loss of the premises. The suit is filed prematurely. In order to avoid the payment of balance sale consideration, the present suit is filed. As per Clause.9 of the agreement of sale, since time being essence of the contract the defendant forfeited a sum of Rs.2 lakhs and notice was given on 20-09-1994 treating the possession from 01-09-1994 as unauthorised and claiming damages @ 5000/- per month. The description of the suit schedule property is not correct. The agreement of sale is not enforceable. The defendant also claimed damages for use and occupation @ Rs.5000/- per month from 01-09-1994 till the date of delivery of vacant possession. On the basis of the above pleadings, the following issues and additional issues have been framed for consideration. 1. Whether the plaintiff is entitled for the relief of injunction and specific performance of the agreement of sale in respect of the suit schedule property as prayed for? 2. Whether the defendant is entitled for vacant possession of the suit schedule property as a counter claim as prayed for? 3. Whether the defendant is entitled for damages as prayed for? 4. To what relief? Additional issues:- 1. Whether the plaintiff is always ready and willing to perform his part of the contract? 2. Whether the plaintiff is entitled for refund of Rs.2 lakhs with interest at 12% p.a. in case land is not available after road widening? On behalf of the plaintiff PW.1 was examined and marked Ex.A- 1 to Exs.A-23. On behalf of the defendant DW.1 to 3 were examined and Exs.B-1 to B-5 got marked. After considering the evidence on record, the lower court passed a decree for specific performance of contract and rejected the counter claim of the defendant. Aggrieved by the said judgment, the defendant has filed this appeal. Now the points that arise for consideration are: 1. Whether the plaintiff was ready and willing to perform the contract? 2. Whether the cancellation of the contract and claim for damages by the defendant is valid? 3. Whether the defendant is entitled to forfeit the earnest money and claim for damages? 4. Whether the judgment and decree passed by the learned Senior Civil Judge is legal and sustainable? 5. To what relief? POINTS:- There is not of much dispute between the parties about the contract of sale or its value. The fact that the plaintiff was a tenant in the premises is also not in dispute. The fact that the amount of Rs.2 lakhs was received under the contract dated.26-01-1994 is admitted and the balance of Rs.2,10,000/- has to be paid at the time of registration of sale deed by 31-08-1994 is not in dispute. It is to be noted that the suit was originally filed on 18-08-1994 for the relief of injunction simplicitor. The allegations in the plaint as was originally instituted clearly go to show that the plaintiff was not willing to pay the total consideration under the agreement of sale. The reason mentioned is that at the time of entering into the sale agreement there was suppression of material fact of widening of the road and consequently there will be a loss of the property and if that is to be happened the defendant has to deduct the amount of sale consideration and he has no right to demand the entire sale consideration. Therefore, even before the time was fixed for performance of the contract, the plaintiff has raised a dispute with regard to the nature of the transaction being vitiated by fraud and also the liability for him to pay the agreed sale consideration. It is not in dispute that the plaintiff who comes to the court for relief of specific performance has to come with clean hands and the conduct should be fair. It is also needless to say that the parties seeking specific performance of the contract should be always ready and willing to perform the contract as per the stipulated terms under the contract. If the plaintiff wants to avoid a contract on the ground of fraud attributed to the vendor, naturally it is a factor pointing towards his disinclination to perform the part of the contract. Evidently, the suit schedule property is situated in a busy and highly commercial and important locality at Sultanbazaar and the plaintiff was doing business there for several years. As rightly contended by the counsel for the appellant, it is difficult to believe that if there were any proposals to widen the road and if there is any loss of the property to be purchased, then the plaintiff also would have been certainly aware of such proposals. The question of any suppression of this material fact by the defendant is far-fetched and cannot be accepted. It is also further to be noted that in any scheme of widening of the roads, there will be due publicity and the people in the affected areas will be knowing as to what is the extent of widening and the properties to be damaged. Therefore, when the plaintiff has been doing business in that locality for a longer time, a fact which is in the notice of the public at large to be suppressed by the defendant is a falsity and thereby approaching of the court for relief of specific performance is definitely an act of unpreparedness to perform the contract. On the other hand, it is only shown as a ground for ulterior purposes. It is also further to be noted when the suit was filed for injunction originally even for the amount already paid or to the extent of the property available, no relief of specific performance was asked and subsequently it was amended. Further more, even in the evidence the claim of the plaintiff is that there is likelihood of majority of suit schedule property being lost and in such case the amount of consideration already paid has to be refunded. In fact the learned Judge at para.15 of the judgment observed that the plaintiff has not produced any evidence to show that the suit schedule property is going to be affected by road widening but produced only Exs.A-4, 5 and 21 which are only the proposals. The learned Judge also in para.16 found “strictly confining to the agreement, there is no such stipulation in it and the plaintiff has to face the road widening even if it is to take place”. In his evidence as PW.1 the plaintiff claimed a decree for the remaining property other than the land acquired for road widening. Therefore, the plaintiff is insisting his own terms for the performance of the contract and takes shelter on a proposal for road widening. The question of fraud and suppression of material facts as alleged by the plaintiff therefore cannot be accepted and the plaintiff is not evidently not acting bonafidely and there was no evidence to perform the contract as per the terms. Even today the alleged widening of road has not taken effect and on the other hand to show lack of bonafides and even without getting decree CCCAMP No.149 of 2011 was filed by the plaintiff to implead the Special Deputy Collector, G.H.M.C on the ground that there was a proposal for Metro Rail Project and the property is likely to be acquired and therefore he should be given the compensation. The lower court also found that the defendant cannot be directed to alter the contract but however the cancellation of the contract by the defendant is not proper. This is not correct since when once the plaintiff has wanted to alter the conditions of the contract and seeks performance in his own way, the relief of specific performance cannot be granted. It is also the settled law that the readiness and willingness of the plaintiff should be continuous till the execution of the sale deed or at least during the trial. In the chief examination he has stated, as under, which is also in accordance with the plea in the plaint, thereby trying to alter the terms of the contract:- “I pray the court to direct the defendant to register the suit property remaining portion after deducting the road widening portion. If no property is available after road widening to return the amount I paid to defendant. Hence I pray that the suit may be decreed accordingly.” Under Section 12 of the Specific Relief Act,1963 the court shall not direct the specific performance of the contract when a party is unable to perform the whole of his part of it and the only exception is if the unperformed part is only a small extent. In this case the apprehension of the plaintiff is that major portion of the property is likely to be lost in the road widening and therefore he wants compensation and also refund of the consideration paid by him. The extent of the property that is likely to be lost in road widening is not clear. From the reading of the plaint and the evidence of PW.1, it is quite clear that the apprehension of the plaintiff is that the major portion of the property is likely to be lost in the acquisition for road widening. In fact as can be seen from para.15 of the judgment of the learned judge, the counsel for the plaintiff relying on Ex.A-21 contended that the proposed road widening is affecting major portion of H.No.4-5-474. This clearly goes to show that the exception under Section 12 of the Specific Relief Act cannot be availed and on the other hand the specific performance becomes impossible of a major portion of the property from the own showing of the plaintiff. Therefore, it is quite clear that the contract as stipulated between the parties could not be enforced and on the other hand the plaintiff is also not interested in adhering to the terms of the contract, I find that there is no readiness and willingness to perform the part of the contract by the plaintiff and trying to avoid the agreement on the hypothetical pretext of road widening expected to be having full knowledge of the facts having business in that area. If not today, if tomorrow the building is to be acquired and damage till then the extent available for conveyance is not certain. The plea of the plaintiff is totally false. Further more, it is to be noted that as per the contract, there is no waiver of payment of the rent and that was the reason as to why the date for performance was fixed as 31-08-1994. The undue advantage the plaintiff has got is that no rent was paid for several years and there was no intention to perform the contract and pay the balance of consideration but on the other hand enjoying the property. This is all to his advantages. Therefore, in such circumstances, the cancellation of the contract after 31-08-1994 cannot be faulted and time shall be treated as the essence of the contract. If the parties never intended time to be essence of the contract, there would have been stipulation for payment of the interest on the balance of the consideration or payment of rent for the enjoyment of the property by the plaintiff. When there is no such stipulation, it is quite clear that the parties wanted the performance of the contract within the time and it is an essential term. This has to be inferred from the nature of the transaction. Under the contract by committing default the plaintiff has got undue advantage. He is enjoying the property not paying the rent and avoiding the performance on his part of contract by not paying the balance of sale consideration on a flimsy ground of un-established fraud. In such case, the court cannot exercise discretion in favour of the defaulting party. The law is not meant for giving advantage for the vendor. From the facts of this case, it is quite clear that the plaintiff being in possession of the property and enjoying the same without paying the rent was interested in litigation rather than perform his part of the contract. In fact in the notice given by the defendant the readiness and willingness to perform the contract if the amount was paid by 31-08-1994 was reiterated as can be seen from Ex.B-2. The lower court has shown undue benefit to the plaintiff ignoring the equities and also the loss suffered by the owner of the property. Therefore, for all the above reasons, I have no hesitation in holding that the decree for specific performance cannot be granted and the refund of the advance of Rs.2 lakhs also does not arise in the alternative since the conditions in the Ex.A-20 agreement provides for such a right to the defendant to forfeit. From 01-09-1994 evidently the possession of the plaintiff after cancellation of the agreement is only un-authorised and the defendant will be entitled to damages for use and occupation which were claimed, and, therefore, I have no hesitation in holding that the person in possession of the property belonging to others under the guise of purchase and paying part of consideration cannot be allowed to dictate the terms to the owner. I feel taking into consideration the nature of the premises under occupation of the plaintiff and also the location and the extent, the ends of justice would meet if a sum of Rs.4000/- per month is granted as damages for use and occupation from 01-09-1994 till the date of delivery. If any further court fee is to be paid by the defendant, it shall be paid at the time of initiation of the execution proceedings. The points are accordingly answered. In the result, the City Civil Court Appeal is allowed by setting aside the judgment and decree of the lower court in granting specific performance of the contract and the suit of the plaintiff is dismissed and the counter-claim of the defendant is allowed directing to deliver vacant possession of the property within three (3) months from this Judgment and to pay damages @ Rs.4,000/- per month from 01-09- 1994 till the date of delivery. Each party do bear their own costs. _______________________ N.R.L.NAGESWARA RAO,J 22-06-2011 TSNR