* THE HON’BLE SRI JUSTICE R. KANTHA RAO + SECOND APPEAL NO. 367 OF 2011 % 15-07-2011 # Smt. Nandagiri Godavari & Anr. .. Appellants VS. $ Kanuganti Sudershan .. Respondent ! Counsel for the appellants: Mr. T. V. Kalyan singh ^ Counsel for the Respondent : Mr. Aditiya Krishna Chintapanti < Gist : > Head Note : ? CITATIONS : 1. 2008 (5) ALD-200 2. 2011 (2) ALT-34 IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD FRIDAY THE FIFTEENTH DAY OF JULY TWO THOUSAND AND SEVEN PRESENT THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 367 OF 2011 Between Smt. Nandagiri Godavari & Anr. … Appellants V/s. Kanuganti Sudershan … Respondent Counsel for the Appellants : Sri T.V. Kalyan Singh Counsel for the Respondent : Sri Aditiya Krishna Chintapanti The Court made the following: (Judgment follows next page) THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 367 OF 2011 J U D G M E N T : This second appeal is directed against the judgment and decree dated18-01-2011 passed in AS.No. 65 of 2009 by the VIII Additional District Judge, Nizamabad, reversing the judgment and decree dated 27-07-2009 passed by the Senior Civil Judge, Nizamabad, whereby and whereunder the suit filed by the plaintiff was dismissed with costs, directing the defendants to refund the advance amount of Rs.99,000/- received by them to the plaintiff with interest @ 12% p.a. from the date of suit till the date of decree and 6% p.a. from the date of decree till realization. 2. Heard the learned counsel appearing for the parties in the second appeal. The second appeal itself is taken-up for disposal at the stage of admission. 3. For the sake of convenience, the parties will be referred to as “plaintiff” and “defendants”. 4. The brief facts relevant for considering the second appeal may be stated as follows : The first defendant is the wife of second defendant. The first defendant is the owner of the plots bearing Nos. 75 and 45 and the second defendant is the owner of plots bearing Nos. 32, 33, 34, 35 and 36. All these seven plots are comprised in survey No. 60 of Nizamabad town. Each plot is measuring 200 sq.yards. The defendants offered to sell the suit plots to the plaintiff for total consideration of Rs.3,99,000=00. The plaintiff accepted to purchase the property on 20-01-2003. An agreement was entered into on the said date and the plaintiff paid advance of Rs.99,000=00 in cash, which was received by the defendants. It was agreed under the agreement that the balance of sale consideration of Rs.3,00,000-00 has to be paid by the last week of March, 2003. All these facts are not in dispute. 5. The contention of the plaintiff is that several times he approached the defendants and informed that he had kept the amount ready, requested to receive the same and pass a joint receipt and also to execute a regular registered sale deed in respect of the suit schedule plots. According to the plaintiff, the defendants were evading to receive the amount on one pretext or the other and ultimately issued a legal notice on 23-05-2003 stating that they repudiated the agreement for not paying the balance of sale consideration by the end of March, 2003. They also mentioned in the said legal notice that they forfeited the amount of Rs.99,000=00 paid by the plaintiff as advance. 6. It is the version of the plaintiff that immediately he issued a reply notice stating that though he was ready and willing to perform his part of contract and was in fact kept the amount ready to be paid to the defendants, the defendants evaded to receive the amount and issued a legal notice on false grounds. He also got published notice in “Eenadu” Telugu daily on 27-05-2003 about the execution of agreement between the parties stating that the defendants were trying to avoid the specific performance of the agreement because of steep increase in prices of the land and was contemplating to sell the property to third parties. 7. On the other hand, it is the contention of the defendants that the plaintiff failed to pay the amount by the end of March, 2003 as agreed in the agreement and only after issuing legal notice by the defendants the plaintiff sent a reply notice falsely contending that he had been ready and willing to perform his part of contract. 8. The learned trial Court accepting the version of the defendants and considering that the time is the essence of the contract, dismissed the suit filed by the plaintiff but directed to refund the amount of Rs.99,000=00 paid as advance by the plaintiff to the defendants. 9. Feeling aggrieved, the defendants filed AS.No. 65 of 2009, which was disposed of by the VIII Additional District Judge, Nizamabad. The learned Additional District Judge by his judgment and decree dated 18-01-2011 in AS.No. 65 of 2009 reversed the findings recorded by the learned trial Court. The learned Additional District Judge held that though the plaintiff approached the defendants for payment of balance of sale consideration and requested them to execute the registered sale deed in respect of the suit schedule plots after receiving the balance of sale consideration, it is the defendants who evaded to receive the amount but issued Ex.A- 3 legal notice dated 23-05-2003. The learned First Appellate Court also held that the defendants without affording any opportunity to the plaintiff to pay the balance of sale consideration straight away on 23-05-2003 got issued Ex.A-3 legal notice repudiating the agreement of sale dated 20-01-2003 forfeiting the advance of Rs.99,000=00 paid by the plaintiff. 10. Here it is crucial to notice that the defendants did not issue any notice stating that in the event of failure by the plaintiff they would repudiate the contract and forfeit the earnest consideration. They straightaway issued legal notice Ex.A-3 dated 23-05-2003 repudiating the agreement stating that they forfeited the advance amount of Rs.99,000=00 paid by the plaintiff. Further in Ex.A-4 reply notice, which was issued forthwith in reply to Ex.A-3 legal notice issued by the defendants, the plaintiff had specifically stated that he was ready to pay the balance sale price. Subsequently in the suit filed by him, he expressed his readiness to perform his part of contract and also mentioned therein that if the Court directs he is ready to deposit the balance of sale consideration. 11. Considering all these facts and also the conduct of the defendants alienating the suit property to third parties flouting the orders passed in the interlocutory application the first appellate court held that the plaintiff is entitled for a decree of specific performance of contract, reversed the decree and judgment passed by the learned trial Court and allowed the appeal. 12. The substantial question of law, which is raised in second appeal, is that before filing the suit the plaintiff did not issue notice as contemplated in Form Nos. 47 and 48 of the Code of Civil Procedure and Section 16 (c) of the Specific Relief Act and therefore the suit is not maintainable. In support of his contention, the learned counsel appearing for the appellants-defendants relied upon the judgments i n BADDAM PRATHAP REDDY V/s. CHENNADI JALAPATHI REDY AND ANR [1], and MALANBEE (Died) Per LRs V/s. SYED AMJED HUSSAIN (Died) Per LRs [2] wherein the learned single Judge held that issuance of notice provided in Form Nos. 47 and 48 of CPC and Section 16 (c) of the Specific Relief Act is mandatory, failure on the part of the plaintiff to issue such notice and non-compliance would result in dismissal of the suit. In this context, it would be very much relevant to extract para 17 of the judgment referred supra-1, which reads as follows: 17. This Court, however, hastens to add that, in law, oral demand by the buyer of immovable property, as such, being sufficient compliance with requirements s of Form Nos. 47 and 48 cannot be totally ruled out. In such circumstances, the proof of oral demand should be strong and unimpeachable and mere allegation, that too, in a passing manner would not be sufficient compliance with the requirement of law. This aspect of the matter, however, has to be gone into a little deeper in an appropriate case, but it would be sufficient to leave the issue with the observations as made hereinabove. 13. However, in the instant case, as already point out, the defendants did not afford any opportunity to the plaintiff to pay the balance of sale consideration as found by the first appellate court but issued Ex.A-3 legal notice dated 23-05-2003 stating therein straightaway that they repudiated the contract and forfeited the earnest money. Further soonafter receiving the said notice, the plaintiff issued Ex-A4 reply notice stating that he had always been ready and willing to perform his part of contract prepared to pay the balance of sale consideration and to obtain registered sale deed, but it is the defendants due to escalation of price waited till 23-05-2003 and issued Ex.A-3 notice straightaway repudiating the contract between the parties, which is illegal. Ex.A-4 reply notice issued by the plaintiff confirms to all the requirements in Form Nos. 47 and 48 and Section 16 (c) of the Specific Relief Act. Therefore, it cannot be said that the suit is liable for dismissal on the ground of not complying with the Form Nos. 47 and 48 and Section 16 (c) of the Specific Relief Act. Further it is well settled that in suit for Specific Performance of Contract relating to immovable property time is not the essence of the contract and merely because the balance of sale consideration was not paid on or before the date stipulated in the agreement it cannot be presumed that the plaintiff is not ready and willing to perform his part of contract. Whether the plaintiff is ready and willing to perform his part of contract is a question of fact, which is rightly decided by the learned first appellate Court. The findings of the first appellate court are based on evidence and on consideration of the pleadings of both the parties and also the facts and circumstances of the case. 14. This Court will interfere with the findings of fact recorded by the first appellate court only when the findings are perverse or not based on evidence on record. This Court will entertain the second appeal in exercise of powers under section 100 of CPC only when any substantial question of law is involved for consideration. In the instant case, no substantial question of law is involved for consideration. 15. For the foregoing reasons, the second appeal is dismissed at the stage of admission, confirming the decree and judgment passed by the first appellate court in AS.No.65 of 2009, dated 18-1-2011. There shall be no order as to costs. ________________________ JUSTICE R. KANTHA RAO. 15-07-2011 I s L NB : L.R. COPY TO BE MARKED. B/o. I s L THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 3 6 7 OF 2011 Circulation No. 51 Date:15-07-2011 Court Master: I s L Computer No. 43 [1] ) 2008 (5) ALD-200 [2] ) 2011 (2) ALT-34