IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD MONDAY, THE ELEVENTH DAY OF APRIL, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 2625 OF 2004 BETWEEN: Pulchand Patil …APPELLANT AND Khandavalli Veera Venkata Ramanamurthy and another. …RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 2625 OF 2004 JUDGMENT: The plaintiff in O.S.No. 261 of 1997 on the file of Principal Senior Civil Judge, Rajahmundry, is the appellant herein. 2. The suit was one filed for specific performance of the contract of sale or in the alternative for recovery of the advance of Rs.70,000/- and the lower Court granted a decree for refund of the advance money. 3. The case of plaintiff is that 2nd defendant is the wife of 1st defendant and both of them are the absolute owners of item No.1 while 2nd defendant is the owner of item No.2. They were entered into an agreement of sale of the properties with the plaintiff for a consideration of Rs.7,25,000/- and a sum of Rs.70,000/- was paid as advance and on or before 09.12.1996 the balance amount has to be paid and in case of the failure the defendants are entitled for forfeiting the advance paid. The plaintiff was always ready and willing to perform the contract. While so, when the 1st defendant contacted the plaintiff by phone in the first week of December, 1996, the plaintiff informed him that he is ready to perform his part of the contract and requested the 1st defendant to intimate as to when they would go over to Rajahmundry for completion of the transaction. The first defendant in turn informed the plaintiff that he will not be able to secure leave in time and that they will be able to go over to Rajahmundry only by the end of December, 1996 and requested the plaintiff to pay Rs.2,50,000/- by way of demand draft and balance by way of cash when they go over to Rajahmundry. Accordingly, the plaintiff took a draft on 31.12.1996 on State Bank of India for Rs.2,50,000/- in favour of the 1st defendant and was expecting the defendants to go over to Rajahmundry for completion of the transaction. Having made the plaintiff believe that they would be going over to Rajahmundry, the defendants got issued a notice in the 1st week of January, 1997 falsely alleging that the plaintiff committed breach of the contract and that they forfeited the advance of Rs.70,000/- and cancelled the agreement. To the said notice, the plaintiff issued a telegraphic reply, dated 10.01.1997 stating forfeiture is untenable and that a detailed reply would follows. The plaintiff also contacted through elders Satyanarayana Reddy and K.Madhusudhan Reddy and the 1st defendant informed that he would go over to Rajahmundry in the month of May, 1997 and the transaction would be completed. In May, 1997 the plaintiff contacted the 1st defendant at Rajahmundry and as the 2nd defendant did not come and was informed that she will be coming in September, 1997 the demand draft was encashed by the plaintiff on 30.06.1997. The defendants have been postponing the performance of the contract on one pretext or the other though the plaintiff was always ready and willing to perform his part. Hence the suit. 4. The defendants filed a written statement admitting the sale agreement and also the receipt of the consideration of Rs.70,000/- and also the stipulation about the payment of balance of consideration. The defendants pleaded that time is the essence of the contract and they are ready and wiling to perform their contract and the breach was committed by the plaintiff. The several allegations about the alleged representatives of the defendants and information that they will be coming to Rajahmundry all are false. There is no reason as to why the plaintiff has not sent the demand draft to the defendants instead of encashing it. The plaintiff is in occupation of the item No.1 of the schedule property as a tenant and committed default to the payments of the rent and proceedings were initiated for eviction. The reliefs claimed by the plaintiff are not true and tenable and therefore, the suit is liable to be dismissed. 5. On the basis of the above pleadings, the following issues have been framed by the trial court, for trial: 1) Whether the time is the essence of the contract? 2) Whether the plaintiff is ready and willing to perform his part of the contract? 3) Whether the plaintiff is entitled for specific performance of the agremenet of sale as prayed for? 4) Whether the plaintiff is entitled for confirming the possession of the plaintiff in respect of item I as an owner? 5) Whether the plaintiff is entitled for possession of Item II? 6) Whether the plaintiff is entitled for refund of advance amount of Rs.70,000/- with interest at 12% p.a? 7) To what relief? 6. On behalf of the plaintiff, PWs.1 to 4 were examined and marked Exs.A.1 to A.5. On behalf of the defendants, DW.1 was examined and marked Ex.B-1. 7. After considering the evidence on record, the learned Principal Senior Civil Judge, Rajahmundry, granted a decree for refund of the advance money. Aggrieved by the said judgment and decree, the present appeal is filed. 8. The points that arise for consideration are: 1) Whether the plaintiff is entitled to the specific performance of the contract instead of refund of consideration granted by the Principal Senior Civil Judge, Rajahmundry? 2) Whether the judgment and decree passed by the learned Principal Senior Civil Judge, Rajahmundry, is legal and sustainable? 9. POINTS: Before considering the merits of the appeal, it is to be noted that the relief of specific performance is discretionary relief and when the lower Court exercises the discretion of sound reasoning and also finding laches with the conduct of the plaintiff, the appellate Court cannot substitute its discretion unless there are strong and compelling reasons overriding the discretion of the lower Court. In this case, evidently with regard to the terms of the contract, there is no dispute. The property was sold for Rs.7,25,000/- and a sum of Rs.70,000/- was paid and the balance amount was tobe paid by 09.12.1996. It cannot also be lost sight about the fact that the contract stipulates that in case of failure to pay the balance of consideration, the amount of Rs.70,000/- paid shall be forfeited. Therefore, the parties intended that the payment should be made within the stipulated time. After deducting advance of Rs.70,000/- the balance payable comes to Rs.6,55,000/-. Evidently, it is for the plaintiff to show that he was ready with the money by 09.12.1996. The 1st defendant was residing in Orissa. According to the evidence of the plaintiff in November, 1996 he was informed by the 1st defendant that he will be coming in December, 1996 to get a demand draft for Rs.2,50,000/- and to pay the balance amount. According to the case of the plaintiff, he obtained a demand draft for Rs.2,50,000/- on 31.12.1996. If really the plaintiff was ready and willing to perform the contract, there is no reason as to why he did not send the demand draft to the defendants either by post or through some other person if the defendants have not gone to Rajahmundy as promised. It is not in dispute that even before the taking of this draft on 31.12.1996, a notice was said to have been given by the defendants on 23.12.1996 cancelling the agreement. According to the evidence of PW.1 this notice was received only in January, 1997, if that is so what was the need for the plaintiff to have issued a telegraphic notice Ex.A.2 on 31.12.1996 without sending the draft. It is to be noted though the plaintiff claims to have approached through mediators, he did not send the money and the alleged mediator PW-2 was examined. Therefore, the plea of the plaintiff that as the defendants promised to come to Rajahmundry, he did not send the draft and that he kept quiet cannot be believed. Any reasonable person would have send the draft to the vendor if he intends to abide by the terms of the contract. When the 1st defendant came to Rajahmundry in May, 1997 there is no reason as to why the demand draft was not given to the 1st defendant even if 2nd defendant did not come to Rajahmundy. It is to be noted that the suit was filed on 11.09.1997. Even then prior to the filing of the suit after the failure of the alleged mediation, no legal notice was given by the plaintiff. The claim of the plaintiff that he was capable of raising the funds is of no consequense when he was not showing readiness and willingness to pay the money to the vendor. It is also to be noted that even after the cancellation of the contract and notice Ex.B.1 received by the plaintiff, no reply was given about the circumstances. The telegram would not have been given, but for the receipt of the notice Ex.B.1. Though in the telegram it was mentioned a detailed reply would be given, no such reply was given. Evidently, the value of the property was increasing day-by-day and the parties intended the payment of the balance of consideration within a stipulated time for better investment and by payment of meagre amount of consideration and failing to prove the readiness and willingness to perform the part of the contract, the purchaser is not entitled for the relief of specific performance. In fact, the learned Principal Senior Civil Judge has assessed the evidence and came to the conclusion that the discretionary relief of specific performance cannot be granted. There are not compelling reasons to come to a different conclusion and the conduct of the plaintiff and retaining the money having taken a draft and failing to show the readiness and willingness continuously disentitles the equitable relief. I find no merits and accordingly points are answered. In the result, the appeal is dismissed. Each party shall bear their own costs. ________________________ N.R.L.NAGESWARA RAO, J Date: 11-04-2011. INL