IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THE HON'BLE SRI JUSTICE K.C. BHANU A.S.45 of 2008 Date:05.10.2010 Between: Pathuri Samrajyam .....Appellant AND Ganddipati Lakshmi Rajyam and others ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU A.S.45 of 2008 JUDGMENT: 1. This appeal is directed against the judgment and decree dated 22.08.2007 passed by the Additional Senior Civil Judge, Ongole in O.S.No.142 of 2004 whereunder and whereby the suit filed by the appellant for specific performance of the contract of sale was dismissed while ordering for return of the earnest money with simple interest @ 6% per annum. 2. The parties are referred to as they are arrayed in the suit in the trial court. 3. The brief facts of the appeal are: The 1st defendant is wife and the defendants 2 and 3 are children of one G. Venugopala Rao, who died on 13.05.2010 leaving behind the defendants as his legal heirs. During his life time G.Venu Gopala Rao purchased the suit scheduled property from his vendor B. Alivelu Mangamma under a registered sale deed and took possession of the same, later G. Venugopala Rao agreed to sell the suit schedule property and some other properties in an extent of Ac.0.40 cents stands in the name of B. Alivelu Mangamma. The bargain was settled at Rs.2,200/- per gadhi and G. Venugopala Rao and plaintiff entered into an agreement of sale and former received an amount of Rs.4,00,000/- from the plaintiff towards advance of the sale consideration by executing an agreement of sale on 14.08.2002. As per the terms and conditions of the sale agreement, the balance of sale consideration has to be paid after demarcating the correct extent by measuring the property within three months from the date of sale agreement. Venugopala Rao has to execute and register the regular sale deed with respect to the suit schedule property. It is also agreed by B.C. Venugopala Rao that the remaining extent of Ac.0.40 cents situated on the north of suit scheduled property stands in the name of B. Alivelu Mangamma would also get registered in the name of the plaintiff or in the name of her nominee. Later the plaintiff came to know that one Subbamma filed suit in O.S.No.188 of 2002 for recovery of amount and also filed an application for attachment of the suit schedule property and the attachment was effected. The plaintiff demanded the husband of the 1st defendant to clear off the debt and to perform his part of contract i.e., by demarcating and measuring the property, receive the balance of sale consideration and execute registered sale deed. Having promised to perform his part of contract of sale agreement and suppressing the fact of attachment, G. Venugopala Rao got issued a legal notice to the plaintiff, demanding the plaintiff to pay the balance of sale consideration and obtain register sale deed. The plaintiff got issued a reply notice with true fats demanding him to clear off the debt and to raise attachment over the property measure the property, receive the balance of sale consideration and execute the sale deed, he gave rejoinder notice stating to deposit the balance of sale consideration to the credit of O.S.No.188 of 2002 and pay the balance to him and get the register sale deed without measuring the schedule property and without ascertaining the balance of sale consideration. Later inspite of several efforts made by the plaintiff, Venugopala Rao did not take steps to measure and demarcate the suit schedule property and postponing the same on some pretext or the other. Hence, the suit. 4. The first defendant filed written statement contending that the deceased executed sale agreement in favour of the plaintiff agreeing to sell Ac.0.90 cents and not Ac.0.40 cents and received advance amount of Rs.4,00,000/-, that the time of three months was provided for payment of balance amount for obtaining registered sale deed, that though the three months time have expired, in spite of demands, plaintiff failed to pay the balance of sale consideration and obtain registered sale deed, that therefore, the defendants suffered huge loss on account of deliberate default committed by the plaintiff, that the plaintiff’s conduct of readiness and willingness has no merit, that the defendants suffered huge loss on account of the fact that the present market value has gone up about Rs.10,000/- per gadhi and therefore prays to dismiss the suit. 5. The defendants 4 and 5 filed written statements with regard to their claim. 6. Basing on the pleadings the following issues are framed for trial: 1. Whether the plaintiff is entitled for relief of specific performance of sale agreement? 2. To what relief? 7. To substantiate the case of the plaintiff, two witnesses were examined as P.Ws.1 and 2 and 9 documents were marked as Exs.A-1 to A-9. On behalf of the defendants, two witnesses were examined as D.Ws.1 and 2 and 9 documents, were marked as Exs.B-1 to B-9. 8. The trial court after considering the entire evidence on record, came to the conclusion that the plaintiff failed to prove that he is entitled for the specific performance of contract of sale and therefore it refused to grant the relief as prayed for. But, granted the alternative relief of returning the earnest money to the plaintiff with simple interest. Aggrieved thereby, the appeal is preferred. 9. The learned counsel for the appellant contended that the plaintiff is always ready and willing to perform his part of contract, provided the land is demarcated and measured that as the land was not demarcated with meats and bounds the question of paying the remaining balance of sale consideration to the deceased does not arise that and even prior to that, the property was under attachment in a suit, that and filing of the suit and attachment of the suit schedule property was suppressed by the deceased, that as the plaintiff is always ready and willing to perform his part of contract, the trial court ought to have granted the relief as there is no contra evidence adduced by the defendant in so far as relief of specific performance of contract is concerned. 10. He further contended that subsequent to the execution of Ex.A-1 sale deed, the deceased executed two simple mortgages and obtained loans from his own relations by mortgaging the property and that mortgagees filed the suits and obtained decrees, that the plaintiff is ready to pay the decretal amount together with costs to the plaintiffs in those two suits and pay the remaining balance if any to the legal representatives of the deceased and hence, he prays to set aside the decree and judgment. 11. None appeared for the defendants 2 and 3 inspite of giving several opportunities. 12. The learned counsel appearing for the respondents 6 and 7 contended that he is only interested in money in pursuance of decree obtained by them if the plaintiff deposits the decreetal amount into the credit of the suit, he has no objection for giving the relief as prayed for by the plaintiff. 13. The learned counsel for the 4th respondent also contended that the amount due under the decree obtained by him may be deposited to the credit of the suit and also says no objection for granting of the relief as prayed for. 14. In view of Section 16 of Specific Relief Act, 1963, it is necessary for the plaintiff to allege and prove his continuous readiness and willingness to perform his part of contract from the date of contract till the date of hearing. Execution of Ex.A-1 document is not in dispute even by the legal representatives of the deceased. According to P.W.1, the deceased G. Venugopala Rao who died on 13.05.2003 executed an agreement of sale under Ex.A- 1 on 14.08.2002 in respect of the land for an extent of Ac.0.90 cents. He received an advance of sale consideration of Rs.4,00,000/- on the same day and agreed to register a sale deed after demarcating the land within three months. Thereafter, the deceased got issued a notice under Ex.A-2 dated 02.01.2003 demanding the plaintiff to pay the balance of sale consideration of Rs.3,88,000/- for which a reply was given by the plaintiff under Ex.A-3 dated 10.01.2003 wherein it is specifically stated that one Subbamma filed a suit in O.S.No.188 of 2002 on the file of the Additional Senior Civil Judge, Ongole for recovery of the amount of Rs.1,69,017/- and also got attached the property covered by the sale deed under Ex.A-1 and requested the deceased to get it measured the suit schedule property by removing the attachment and so that the plaintiff would pay the balance of sale consideration. The deceased again got issued Ex.A-4 rejoinder advising the plaintiff to deposit the said amount of Rs.1,64,000/- in O.S.No.188 of 2002 and get the property registered within one week. Ex.A-4 notice does not indicate about the measurement demarcation of the land. In the meantime, the deceased died. 15. Section 16( c ) of the Specific Relief Act, 1963 (for short, the Act) reads that the specific performance of the contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. The words ready and willing imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The terms of a contract performable by the plaintiff may be of two kinds (a) those that have to be performed before the other side can be called upon to fulfill his promise and (b) others that may have to be subsequently performed. 16. It is fairly settled that mere stipulation of time would not make the time the essence of contract and in case of sale of immovable property normally the time may not be essence of the contract. From the proviso to Section 16( c ) of the Act, there must be pleading by the plaintiff that he was always ready and willing to perform his part of contract. A specific plea has been taken in the plaint by the plaintiff that he was ready and willing to perform his part of contract. Similarly, P.W.1 who is no other than the husband of the plaintiff who testified on behalf of his wife, has categorically stated that he and wife were ready, and willing to perform their part of contract, provided the defendants measured with specific boundaries and demarcated the land of Ac.0.50 cents as per Ex.A- 1. Ex.A-1 is the crucial document on which plaintiff is seeking the enforcement of contract and it is not in dispute. A perusal of Ex.A- 1 shows that after measuring the land and ascertaining the extent of land within three months, a regular sale deed has been executed. It is in respect of land with specified boundaries. On this aspect, the husband of plaintiff examined as P.W.1 stated in his evidence that as per the terms and conditions of the sale agreement, dated 14.08.2002 himself and his wife have to pay the balance of sale consideration to G. Venugopala Rao after measuring the suit schedule property and arrive at correct value of the property within three months. The deceased further agreed to execute the registered sale deed in favour of the plaintiff to an extent of Ac.0.40 cents. P.W.1 also clearly deposed that himself and his wife are even ready to perform their part of contract with the balance of sale consideration, but the defendants failed to perform their part of obligation being the legal heirs of late G.Venugopala Rao. That part of the evidence with regard to the ready and willingness of the plaintiff has not been challenged by the counsel appearing for the defendants 1 to 3 in the trial court when a fact has been stated by witness and the same has not been challenged in the cross-examination, it can be said that such a fact is admitted. Similarly P.W.2 who is the scribe of Ex.A-1 has categorically stated that it was agreed that the extent of land will be measured for the purpose of calculation of the sale consideration at the time of execution of the sale deed. Therefore, the recitals in Ex.A-1 coupled with the evidence of P.Ws.1 and 2 would clearly go to show that the extent of land has to be measured within three months. The extent of land covered by Ex.A-1 is Ac.0.90 cents. As per the schedule of property in the plaint, it is clear that the plaintiff is seeking relief of specific performance in respect of Ac.0.50 cents of land and remaining Ac.0.40 cents stands in the name of one B. Alivelu Mangamma. The deceased also agreed to get the land of B. Alivelu Mangamma executed in the name of the plaintiff. It is not in dispute about the total extent of land in S.No.18814 of Pevvuru village is Ac.0.90 cents. As per the recitals of Ex.A-1, the deceased purchased Ac.0.50 cents of land from B. Alivelu Mangamma under registered sale deed dated 03.10.1996. Though the deceased has no right, title or interest in the remaining extent of Ac.0.40 cents, still he has undertaken a responsibility of getting Ac.0.40 cents of land registered in the name of the plaintiff in pursuance of Ex.A-1 agreement of sale. In such a case, the property has to be demarcated and the boundaries have to be identified because the survey number and boundaries were given for the entire land of Ac.0.90 cents. Unless the land of Ac.0.50 cents is demarcated with the boundaries, it may not be possible for the plaintiff to obtain a sale deed by paying the remaining balance of sale consideration. That is the reason why a specific clause was incorporated in the agreement. It is recited in Ex.A-1 that after getting the land measured within three months, the plaintiff has to pay the balance of sale consideration and thereafter the deceased has to execute a registered sale deed for the said extent. Admittedly the defendant has not taken any steps to demarcate the land of Ac.0.50 cents from out the land of Ac.0.90 cents and informed the same to the plaintiff directing her to pay the balance of remaining sale consideration covered under Ex.A-1. Unless the land is measured and demarcated duly specifying boundaries, question of paying the remaining balance of sale consideration by the plaintiff does not arise. No evidence is adduced on behalf of the defendants 1 to 3 who are the legal representatives of the original executant of Ex.A-1. They have not come to the witness box to deny the evidence of the plaintiff about her ready and willingness to perform their part of contract. No doubt, defendants 4 and 5 adduced evidence. Though they are not necessary parties to the suit, but they were allowed to come on record. In a suit for specific performance of contract, the parties to the contract are necessary parties. Though the third parties to the contract have impleaded as defendants, they have got rights only to the extent of the amount advanced by them to the deceased in pursuance of simple mortgage deeds. 17. The learned counsel for the appellant has categorically stated that the plaintiff is ready and willing to deposit the amount due to the defendants 4 and 5 to the credit of the respective suits filed by them. It is not in dispute that the deceased who is the executant of Ex.A-1 obtained loans from the defendants 4 and 5 by creating a simple mortgage deeds separately and when he failed to pay the amount, the mortgagees filed two suits and obtained decrees. Therefore, the counsel appearing for the defendants 6 and 7 and the counsel for the defendant No. 4 stated that they have no objection to deposit the amount covered under the said decrees into the court to the credit of the suits and the remaining balance if any to be paid to the legal representatives of the 1st defendant. The obligation on the part of the deceased executant of Ex.A-1 and after his death, the legal heirs viz., D-1 to D-3 have not performed contract under Ex.A-1. The obligation is demarcation of the property with the meets and bounds to the extent of Ac.0.50 cents for which the deceased was having a right, title and interest. So long as the property is not divided by meets and bounds, it may not be possible for the plaintiff to pay the remaining balance of sale consideration to the legal heirs of the deceased. It is clear that the plaintiff had established from the evidence which would clearly go to show that plaintiff is always ready and willing to perform her part of contract by paying the remaining balance of sale consideration which is the primary requirement for succeeding the suit as per Section 16( c ) of the Act. These aspects have not been taken into consideration by the trial court. There is absolutely no appreciation of evidence on reord with reference to Section 16 ( c ) of the Act. 18. Having regard to the facts and circumstances of the case, the appellant is entitled for grant of relief of specific performance of the contract subject to demarcation of the property of Ac.0.50 cents with specific boundaries. Therefore, the judgment of the trial court is set aside and suit filed by the plaintiff is decreed as prayed for. Plaintiff is directed to pay (i) the decreetal amount covered by O.S.No.233 of 2004 on the file of Principal Senior Civil Judge, Ongole to the 4th defendant and (ii) the decreetal amount covered by O.S.No.235 of 2004 on the file of Principal Senior Civil Judge, Ongole. After discharging the amounts due covered by two decrees, the balance shall be deposited into Court in the name of minors D-2 and D-3. Thereafter, the guardians of D-2 and D-3 shall execute a sale deed by duly demarcating the suit schedule property. If the guardians of D-2 and D-3 failed to execute a regular sale deed, the Court shall execute a register sale deed. There shall be no order as to costs. Accordingly, the appeal is allowed. _______________ K.C. BHANU, J October 5, 2010 Gk. THE HON’BLE SRI JUSTICE K.C. BHANU A.S.45 of 2008 October 5, 2010 Gk.