HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.2749 OF 2004 JUDGMENT: The appeal is filed against the judgment and decree in O.S.No.141 of 1999 on the file of the Principal District Judge, Rangareddy District at L.B.Nagar. The suit was one filed for specific performance of the contract of sale dated 24.11.1997. 2. The allegations in the plaint go to show that the defendant is the owner of the schedule property and on 24.11.1997 the plaintiff entered into contract of sale for purchase of the schedule property for a sum of Rs.6,50,000/- and paid a sum of Rs.1,00,000/-. As per the terms of the agreement, the defendant has to clear of all sorts of dues and undertake to transfer the schedule property and should convey a clear title. The defendant has to pay instalments due to H.U.D.A. But, he failed to pay the same and postponing on some pretext or the other. The plaintiff was always ready and willing to perform the part of the contract and requested the defendant to clear of the sums due to H.U.D.A. and to produce necessary documents. The defendant kept quiet for a long time. On 10.07.1999 a legal notice was issued by the plaintiff, the same was received by the defendant. In spite of receipt of legal notice, the defendant neither came forward to fulfil his part of contract nor gave any reply to the said legal notice. The defendant filed a false private complaint against the husband of the plaintiff for the offences punishable under Sections 448, 504 and 506 of the Indian Penal Code (for short, ‘IPC’) with a malafide intention. Hence the suit was filed for specific performance of the contract of sale. 3. The defendant has filed a written statement, admitting the agreement of sale but the time is essence of the contract and the amount has to be paid within two months. The allegation that the defendant has to clear the dues to the H.U.D.A. and produce the documents are all false. The allegation that the plaintiff was always ready and willing to perform the part of the contract is not correct. The alleged criminal complaint is not malafide. The agreement of sale was executed with a specific understanding that the balance shall be paid within two months from the date of agreement. The plaintiff has not performed the contract and having fed up with the attitude of the plaintiff, the defendant gave a paper publication on 02.04.1998 and therefore, the suit is liable to be dismissed. 4. On the basis of the above pleadings, the following issues have been framed for trial: 1) Whether the plaintiff is entitled for the relief of specific performance of agreement of sale? 2) Whether the plaintiff failed to perform her part of contract? 3) To what relief? 5. On behalf of the plaintiff, PW.1 was examined and marked Ex.A.1 to A.4. On behalf of the defendant, DW.1 was examined and no documents were marked. 6. After considering the evidence on record, the learned Principal District Judge, dismissed the suit. Aggrieved by the said judgment and decree, the present appeal is filed. 7. The points that arise for consideration are: 1) Whether the plaintiff was always ready and willing to perform the part of the contract? 2) Whether the plaintiff is entitled for the specific performance of the contract? 3) Whether the Judgment and decree passed by the learned Principal District Judge, Ranga Reddy at L.B.Nagar, is legal and sustainable? 8. POINTS: So far as the agreement of sale between the parties, which is dated 24.11.1997 is concerned, there is no dispute about the same. It is also not in dispute that the said property was purchased by the defendant from H.U.D.A. It is also not in dispute that the sale consideration was Rs.6,50,000/- and a sum of Rs.1,00,000/- was paid and balance of Rs.5,50,000/- is to be paid within two months. It is essential to extract the conditions of the contract: “1. Whereas the seller has agreed to pay the Balance Final Cost of the House. 2. Whereas the seller has agreed to pay the upto date Municipal Taxes, Water Charges and Electricity Charges. 3 . Whereas the seller agreed to handover the Physical Possession at the time of Final Payment of Settlement. 4 . Whereas the Schedule of the Property is free from all Encumbrances, Charges, Sales, Gift, Mortgages and Court Attachments etc., 5. If the Seller failed to Transfer the said House Property to the Purchasers name, the Purchaser herein has every Right for specific performance Contract of Sale under this Agreement”. 9. The learned District Judge has found that the plaintiff was not ready and willing to perform the contract and also found that the amounts due to H.U.D.A. could not be discharged, as the balance of sale consideration was not paid. The lower Court also gave credence to the paper publication said to have been given by the defendant though it was not filed and the contents of it are not known. 10. Generally, time is not treated as an essence of the contract in case of sale of immovable properties. In this case, though an attempt was sought to be made from the evidence of PW.1 that the plaintiff was not having money and therefore, the consideration could not be paid, it was not a plea raised in the written statement. It is also not in dispute that the balance of sale consideration was deposited in the Court as per the directions of the Court. Therefore, the contention of the defendant that the plaintiff was not ready and willing to perform the contract as there was no cash cannot be taken as a ground to deny the relief of specific performance. The evidence of PW.1 clearly goes to show that the plaintiff has got every capacity and even her husband is employed in a Government service and resourceful. Evidently, in considering the enforcing of the contract of sale, the Court has to consider the conduct of the parties and if the defendant has committed a breach and tried to avoid the contract, it is difficult to accept the contention that the plaintiff was not ready and willing to perform the contract. In this connection, the learned counsel for the appellant relied on a decision reported in S.Indira and another Vs. Netyam Venkataramana and others[1], wherein it was held that plaintiff need not tender or deposit sale consideration and mere delay in filing a suit after reply of notice from the vendor is not a ground to hold that the contract was abandoned. He also relied on a decision reported in Smt. Chand Rani (dead) by LRs., V. Smt. Kamal Rani (dead) by LRs.,[2] wherein it was held that in cases of specific performance with regard to sale of immovable property, intention of the parties to make time as essence of the contract has to be taken from circumstances. He also relied on a decision reported in Mademsetty Satyanarayana Vs. G.Yelloji Rao and others[3], where-under principle to grant the relief of specific performance was considered and also held that mere delay or laches, which will not prejudice the defendant, is not a ground to refuse specific performance. He also relied on a decision reported i n M/s. Hind Construction Contractors by its sole proprietor Bhikamchand Mulchand Jain (Dead) by L.R’s., V. State of Maharashtra[4], as to when time is to be treated as essence of the contract. He also relied on a decision reported in Smt. Indira Kaur and others V. Shri Sheo Lal Kapoor[5], wherein it was held about the proof of readiness and willingness in a suit for specific performance. 11. In this case, the lower Court has taken the view that the plaintiff was not ready and willing to perform the part of the contract and denied the relief on the ground that there was no explanation for keeping silent from 02.04.1998 to 10.07.1999 having come to know about the paper publication and also giving the notice after lapse of long time. While assessing the breach of contract, the conduct of both parties have to be taken into consideration. If the defendant has committed the breach, mere lapses or delay on the part of the plaintiff is not a ground to deny the relief if otherwise entitled. It is the specific plea of the defendant that there are no obligations on his part to perform before seeking registration of the sale deed. But, as can be seen from the terms extracted above, the 1st condition is emphatic that the seller has to pay the balance of final cost of the house, evidently to H.U.D.A. The reason is very simple because without paying the amount due to H.U.D.A. and getting the title from H.U.D.A., the defendant would not have conveyed a title to the plaintiff. Further-more, the agreement does not stipulate that the said payment of H.U.D.A. shall be only after the balance of consideration was paid by the plaintiff. In fact, from the own showing of the defendant, he has cleared the dues to H.U.D.A. in November, 1999. Having taken advance of Rs.1,00,000/- towards part of the consideration, he kept quiet for a long time and did not discharge the liability to H.U.D.A. The amount payable to the H.U.D.A. appears to be about Rs.46,000/- and that could have been met from the consideration paid by the plaintiff. Added to that, if really the plaintiff has committed default and avoided the contract, there is no reason as to why the defendant should resort for giving a paper publication about cancellation of the agreement. 12. Any reasonable prudent man would have sent a legal notice or a personal notice calling upon the plaintiff to pay the balance of consideration or informing the plaintiff for the failure of the payment of the balance of sale consideration, the contract was cancelled. But, however, a strange attitude has been adopted by the defendant in giving a paper publication. Merely because the plaintiff in the evidence admitted that she came to know about the paper publication, it does not mean that the reasons mentioned therein were known her. For the reasons best known to the defendant, the copy of the said publication was not filed. Added to that, a complaint was filed against the husband of the plaintiff for the offences punishable under Sections 448, 504 and 506 IPC, which was registered as Crime Number 236 of 1998 by Police Vanasthalipuram. This was evidently appears to be in July, 1998. This attitude of the defendant is clearly shows to frighten the plaintiff and her husband from proceeding with the contract for the reasons best known to him. Therefore, it is the conduct of the defendant that is blemishable and in fact, he has unilaterally gave the paper publication without giving any notice of cancellation, the defendant has not cleared the amounts due to H.U.D.A. till November, 1999 and on the other hand, the husband of the plaintiff was implicated in a criminal case. The defendant has not filed even the copy of the complaint or the copy of the paper publication as to under what circumstances, the defendant has to resort to the said actions. In fact, the legal notice was given on 10.07.1999 and it was received by the defendant, but no reply was also given though the defendant gives unacceptable reasons. When according to the defendant, the contract was cancelled on 02.04.1998, the question as to whether the plaintiff shall prove readiness and willingness from 02.04.1998 till 10.07.1999 as found by the lower Court may not be correct. 13. Evidently, under the law of limitation, the period of enforcing a specific performance of the contract is three years from the date of refusal or from the date fixed in the contract. It is not necessary for the plaintiff to prove that every minute and everyday the plaintiff was ready and willing to perform the contract. There is not of much evidence on both sides to assess the conduct and only circumstances have to be taken into consideration. The reason sought to be canvassed by the defendant that the plaintiff was not ready and willing to perform the contract and that there was no money cannot be accepted. In fact, if the plaintiff was not interested in performing the part of the contract, there is no reason as to why such a huge sum of Rs.1,00,000/- has to be paid in the year, 1997. The conduct of the defendant clearly goes to show that the condition of clearing the debts to H.U.D.A. was not complied. On the other hand, behind the back of the plaintiff, the contract is said to have been cancelled. Therefore, it is clear case where the breach has been committed by the defendant and not by the plaintiff. Therefore, taking into consideration the above fact, the judgment and decree passed by the learned Principal District Judge, cannot be accepted and it is a fit case where specific performance of the contract has to be granted and there cannot be any doubt about the readiness and willingness on the part of the plaintiff or on her husband. 14. Accordingly, the appeal is allowed and the judgment of the learned Principal District Judge is set aside. The suit of the plaintiff is decreed directing the defendant to perform the specific performance of contract of the sale at the expenses of the plaintiff since already the balance of sale consideration was deposited in the Court below and the plaintiff also shall be put in possession of the schedule property. Each party shall bear their own costs in this appeal and in the lower Court. If the defendant fails to execute sale deed within three months, the plaintiff can seek execution through Court. ________________________ N.R.L. NAGESWARA RAO,J Date:22.07.2011 INL [1] 1996(3) ALT 1080 (D.B.) [2] AIR 1993 SUPREME COURT 1742 [3] AIR 1965 SUPREME COURT 1405(1) [4] AIR 1979 SUPREME COURT 720 [5] AIR 1988 SUPREME COURT 1074