IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRDESH:: HYDERABAD TUESDAY, THE FIRST DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.1558 OF 2010 Between: Dasari Venkata Ramana Reddy …Petitioner A n d Balasani Suresh Goud ..Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.1558 OF 2010 ORDER: This civil revision petition is directed against the order dated 25-03-2010 in I.A.No.246 of 2010 in O.S.No.6 of 2010, on the file District Judge, Karimnagar, wherein the petitioner herein, the plaintiff, was directed to deposit balance sale consideration of Rs.31 lakhs by 15-04-2010 and till then directing the respondent not to alienate the property. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondent. Perused the record. 3. The petitioner herein filed the suit against the respondent for specific performance of an agreement of sale dated 22-09-2009 in respect of plaint schedule property bearing house No.2-1-134, situate at Peddapalli. According to the plaintiff, the sale consideration was agreed to be Rs.32,11,250/- at the rate of Rs.9,175/- per square yard and the plaintiff paid an amount of Rs.1 lakh as earnest money and the balance sale price was payable after taking measurements on 28-10-2009 and the registered sale deed is to be executed and possession to be delivered on that day. The plaintiff further pleads that in terms of the agreement, measurements were taken and boundaries were fixed by both parties and thereafter the plaintiff procured the balance sale consideration and got a notice issued to the defendant on 26-10-2009 expressing his readiness and willingness to pay the balance sale price and inviting the defendant to execute registered sale deed and deliver possession of the suit premises, but the same was returned unclaimed on 14-11-2009 with postal endorsement ‘party refused’. The plaintiff further pleads that he got a sale deed prepared and requested the defendant to receive the balance sale consideration and execute the sale deed, but the defendant did not receive the balance sale consideration and sought some more time. According to the plaintiff, the defendant finally refused to execute the sale deed on 10-02-2010. Hence, the suit. 4. The plaintiff also filed I.A.No.246 of 2010 under Order XXXIX Rules 1 and 2 seeking to restrain the defendant from alienating or encumbering the plaint schedule property till the disposal of the suit. The respondent-defendant has not filed written statement in the suit nor counter in I.A.No.246 of 2010 indicating his stand by the date of passing the impugned order. It appears that the respondent-defendant subsequently filed a written statement alleging that the plaintiff undertook to discharge the debts due by the defendant to the Indian Overseas Bank, Alwal Branch, State Bank of India, Secunderabad, State Bank of Hyderabad, Karimnagar and Indian Bank, Peddapalli and on account of the failure on the part of the plaintiff to perform his part of the agreement, the defendants sustained heavy financial loss, besides mental agony. 5. As seen from the impugned order, the trial Court extended time for filing counter till 15-04-2010 and further directed the plaintiff to deposit the balance sale consideration of Rs.31 lakhs by 15-04-2010, with a further direction to the respondent not to alienate the property till then. Aggrieved by the said direction to deposit the balance sale consideration of Rs.31 lakhs, the plaintiff filed the present civil revision petition. 6. It is now well settled that the plaintiff, seeking specific performance of an agreement of sale, is not required to deposit the balance sale consideration while filing the suit and expression of readiness and willingness to perform his part of the contract would suffice. 7. The learned counsel for the respondent relied upon a decision of this Court in NALAMATHU VENKAIYA (DIED) BY LR V. B.S.NEELAKANTA AND ANOTHER[1] wherein it was held as under: “…… Except a vague statement in Para 6 of the plaint and also the oral assertion that the plaintiffs persistently requested the defendant to perform his part of contract and reiterated that they are ready and willing to pay the amount on executing power of attorney by defendant, there is no other documentary evidence to substantiate the said contention. The oral assertion itself is not sufficient to say that the plaintiff was ready and willing. It is also to be observed that the plea has to be supported by proof as propounded by the Apex Court in Pushparani S.Sundaram v. Pauline Manomani James (2002 (9) SCC 582).” In the above referred decision, the Apex Court held as follows: “So far there being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same.” The above decision was rendered in the appeal that arose against the judgment of the trial Court whereby the suit for specific performance of an agreement of sale was decreed and after reappraisal of the evidence on record. In the present case, that stage has not yet been reached, inasmuch as the written statement is filed very recently and issues are yet to be settled and trial conducted. 8. The question as to whether or not the plaintiff was, in fact, ready and willing to perform his part of the contract as asserted in the plaint and whether the said plea is substantiated or not by evidence, is a matter to be considered during the course of trial after the entire evidence is adduced but not at this threshold stage. 9. The only question which arises in the present revision is whether the direction to the plaintiff to deposit the balance sale consideration of Rs.31 lakhs before the Court at this threshold stage, is sustainable. 10. In S.SIVARAM BABU & ANOTHER V. P. SUJANRAJU[2], a Division Bench of this High Court held as follows:- “…The direction to deposit the money is a matter of exception, the general rule being that there is no necessity of the money being deposited in order to prove one’s own readiness or willingness to perform his part of the contract. Further, the direction envisaged by the Explanation as a measure of exception cannot be understood as one at the inception stage of the suit for purposes of registering the plaint and entertaining the suit. What all required by Section 16(c) of the Specific Relief Act is that the plaintiff should aver performance of or readiness and willingness to perform his part of the contract.” 11. The explanation to Section 16(c) of the Specific Relief Act states as follows:- (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. Clause (i) of the explanation, therefore, makes it clear that it is not essential for the plaintiff to either tender to the defendant or to deposit in Court any money except when so directed by the Court. Explanation (ii) states that the plaintiff must aver readiness and willingness to perform the contract. The second clause of the explanation is complied with by the plaintiff in view of the specific assertion made in the plaint about his readiness and willingness to perform his part of the contract. Clause (i) of the explanation states that the plaintiff need not tender the balance sale price to the defendant nor deposit the same in Court unless he is directed. 12. No doubt the trial Court now gave a direction to the plaintiff to deposit the balance sale price of Rs.31 lakhs. The question is whether such a direction is really called for in the facts and circumstances of the present case and whether it was issued by exercising the discretion in a judicious manner. A perusal of Clause (i) of the explanation would clearly show that the direction by the trial Court to deposit the balance sale price is in the nature of an exception, the general rule being that it is not necessary to do so. When the Court has issued such a direction which is exceptional in its nature reasons for the same have necessarily to be recorded. By the date of the impugned order, the defendant has not even filed his written statement or counter specifying his stand. The Court had, therefore, no basis to test the bona fides of the assertion made in the plaint that the plaintiff was ready and willing to pay the balance sale price. No doubt the Court has got power to direct the plaintiff to deposit the balance sale price, but the said power can be exercised only when the facts and circumstances of the case warrant the same. In other words, unless the Court is of the opinion that the averment in the plaint about the readiness and willingness of the plaintiff to perform his part of the contract is not true at least prima facie, there is no need or occasion to issue such a direction of exceptional nature. In the absence of any material to doubt the veracity of the statement made in the plaint about the plaintiff’s readiness and willingness to perform his part of the contract, the matter being at the threshold stage, it cannot be said that the discretionary power in giving the impugned direction was exercised in a judicious way. At any rate, the cryptic order passed by the trial Court does not disclose any reasons for giving such a direction, except observing that the amount already paid as advance i.e., Rs.1 lakh is very less. The quantum of the amount of advance paid cannot be a basis for giving a direction to deposit the balance sale price. 13. The impugned order to the extent it directs the plaintiff to deposit the balance sale price of Rs.31 lakhs is, therefore, unsustainable and the same is accordingly set aside. The remaining portion of the order directing the respondent-defendant not to alienate the property shall, however, remain unchanged till the disposal of I.A.No.246 of 2010. It is open to the trial Court to dispose of I.A.No.246 of 2010 on its own merits after counter is filed without in any way being influenced by any of the observations made hereinabove. 14. In the result, the civil revision petition is disposed of. There shall be no order as to costs. _____________________ G.V.SEETHAPATHY, J 01st March, 2011 Lrkm. [1] 2005(5) ALD 767 (DB) [2] 1992(1) NRC 27