THE HON’BLE SRI JUSTICE G.CHANDRAIAH % 29.10.2009 A.S.NO.998 OF 2004 SMT. ASIA BEGUM (DIED) REPRESENTED BY L.R.S. APPELLANTS. And SMT. MAHAUMUDA BEGUM RESPONDENTS Counsel for the appellants: Sri V.Srinivas Counsel for the respondent: Sri N.V.Suryanarayana Murthy < Gist Ø Head Note. Ø ?Cases Referred: 1. (2000)7 SCC 548 2. 2002(2) ALT 589 (DB) 3. AIR 2000 SC 2408 4. 2000(4) ALT 81 5. (1979)4 SCC 393 6. AIR 1957 SC 577 7. 1977-LAP-0-18 8. AIR 1996 SC 1733 9. AIR 1980 SC 193 10. 2000(4) ALT 673 11. 2007(1) ALT 770 THE HON’LE SRI JUSTICE G.CHANDRAIAH A.S.NO.998 OF 2004 JUDGMENT Heard Sri V.Srinivas, learned counsel for the appellants and Sri N.V.Suryanarayana Murthy, learned Senior Counsel for the respondent. 2. Aggrieved by the judgment and decree dated 11.9.2003 passed by the court of Senior Civil Judge, Kovvur in O.S.No.69 of 1996 in decreeing the suit for specific performance, the legal heirs of the original defendant, who were brought on record as defendant nos.2 to 9 during the pendency of the suit, owing to the death of the defendant, filed the present appeal. 3. The parties will be referred to as per their array in the original suit. 4. As per the plaint, the suit schedule property is an extent of 417 sq. yards in Geroity Dry R.S.No.187/5 out of Acs.4-34 cents as per lay out no.20/91, plot no.2 and as per the approved master plan in Nidadavole Municipality in West Godavari District, with following boundaries: East: 75 feet the site left as road with a width of 40 feet. South: 50 feet Pasila Srinivasarao’s site. West: 75 feet plot no.1 of the defendant. North: 50 feet Nidadavole – Yernagudem road. 5. As per the plaint averments, the case of the plaintiff – Smt. Mohamuda Begum is that the suit schedule property belong to the defendant no.1 – Smt. Asia Begum, as she got the said property in a partition with her sister and she is in enjoyment of the same with full rights of ownership and that the said land was under the approved lay out of Town Planning authorities and also by the Nidadavole Municipality. The defendant no.1 and her son showed the partition deed and other documents and offered to sell the same and the plaintiff after verifying the said documents, agreed to purchase the site, which is about 390 sq. yards at the rate of Rs.930/- per sq yard, which comes to Rs.3,62,700/-. The defendant no.1 executed an agreement of sale on a stamped paper in favour of the plaintiff on 9.2.1996 and on the date of agreement, the plaintiff paid an amount of Rs.10,000/-out of the total sale consideration and the balance of sale consideration was agreed to be paid within five months i.e., by 8.7.1996 and the defendant agreed to execute a regular registered sale deed. Subsequently, the plaintiff paid an amount of Rs.90,000/- on 22.4.1996 and the defendant endorsed the same on the back of the agreement. The further case of the plaintiff is that though she made ready, the balance sale consideration, well before 8.7.1996 and requested the defendant no.1 to execute the sale deed, with an ulterior motive and to have wrongful gain, the defendant no.1 did not come forward to complete her part of sale transaction. Thereupon, after unsuccessful mediation, the plaintiff issued a telegraphic notice on 9.7.1996 calling upon the defendant no.1 to execute the registered sale deed and deliver possession. In spite of the notice, there was no response from the defendant. The case of the plaintiff is that she is always ready and willing to perform her part of the contract, but the defendant no.1 went on dodging the matter and failed to complete the transaction. Hence, she got issued a legal notice on 17.7.1996 and the said notice was received by the defendant no.1 and she gave a reply on 22.7.1996 with untenable allegations, stating that the total extent of the property is 417 sq. yards and that the said extent has to be taken by the plaintiff within the boundaries and that the total extent of site including the excess 27 sq. yards will be Rs.3,87,810/- and requested the plaintiff to come for measurements and for paying the balance consideration on 29.7.1996. Thereupon, the plaintiff by reply notice dated 25.7.1996 expressing her readiness and willingness to obtain sale deed for 417 sq. yards of site as per the master plain for the plot no.2 with linear measurements, 75 feet on the east and west and 50 feet on the north and south, after measuring the same on land and further requested the defendant no.1 to complete the transaction by 26th or 27th of said month without fail. In spite of the said notice, the defendant failed to complete the sale transaction. It is further alleged that for completing the sale transaction, the husband of the plaintiff who is running a business in Utter Pradesh came all the way and stayed at Nidadavolu for more than a month, losing his income of Rs.15,000/- per month. Therefore, the plaintiff is entitled for compensation at Rs.12,000/-. It is further alleged that as the plaintiff is ready and willing to perform her part of the contract and as the defendant failed to perform her part of the contract, the plaintiff sought to decree the suit for specific performance. It is stated that the plaintiff is ready and willing to deposit the balance of sale consideration as and when the court directs for its deposit. In the alternative, it is stated that if the court comes to the conclusion that the plaintiff is not entitled for the relief of specific performance, the plaintiff sought for refund of Rs.1,00,000/- paid by her as advance and also Rs.1,00,000/- as damages for breach of contract committed by the defendant no.1. With these averments, plaintiff filed the suit for specific performance and in the alternative, for damages. 6. The defendant filed written statement and while denying the averments in the plaint with regard to readiness and willingness on the part of the plaintiff in performing her part of the contract, stated that as soon as the notices are received in the suit, she filed an application in I.A.No.2787/1990, after giving due notice to the plaintiff’s advocate on 1.11.1996, calling upon the plaintiff to deposit the entire sale consideration immediately, but no such amount is deposited and that instead of depositing, time was taken for filing counter and thus this shows the conduct of the plaintiff that she is not having money on hand to pay the sale consideration and therefore, she is not ready to perform her part of the contract. It is further stated that as the plaintiff has failed to perform her part of contract and committed breach, she is not entitled for refund of the earnest money paid under the agreement. With these averments the suit was sought to be dismissed with costs. 7. In the additional counter affidavit, the defendant no.1 denying the averments of the plaintiff with regard to claim for compensation, sought to dismiss the suit. 8. Based on the above pleadings, the trial court framed the following issues for trial: 1. Whether the plaintiff is entitled for specific performance of suit contract of sale dated 9.2.1996? 2. Whether the plaintiff committed breach of contract? 3. To what relief? Additional issue 1. Whether the plaintiff is entitled for compensation as prayed for? 9. In support of the case of the plaintiff, she got examined herself as P.W.1 and also got examined the attester of the agreement of the sale, as P.W.2. The plaintiff also got marked Exs.A-1 to A-7. On behalf of the defendants, the son of the original defendant no.1 who was impleaded as 5th defendant, was examined as D.W.1 and no documents were got marked on their behalf. 10. Appreciating the entire evidence, both oral and documentary, answering all the issues in favour of the plaintiff, except the additional issue with regard to compensation, the trial court decreed the suit for specific performance of the agreement of sale dated 9.2.1996 and directed the legal representatives of the 1st defendant, to execute the registered sale deed in favour of the plaintiff within one month from the date of the decree and in case of default, gave liberty to the plaintiff to get the sale deed executed and for delivery of possession, by due process of law and further gave liberty to the defendants to withdraw the sale consideration deposited in the court. 11. Aggrieved by the judgment and decree of the trial court in decreeing the suit for specific performance, the defendants in the suit, filed the present first appeal. 12. The learned counsel for the appellants Sri V.Srinivas contended that that the trial court granted the decree for specific performance without the plaintiff making out the case for grant of decree for specific performance of the agreement of sale dated 9.2.1996. He further contended that the time is the essence of the contract and as the plaintiff failed to adhere to the time stipulated, she is not entitled for the decree of specific performance. He contended that as per the terms of the agreement of the sale, in the event of the failure to execute the sale deed on the part of the defendants, the plaintiff is entitled to get back the advance amount along with compensation of Rs.10.000/-, even though the plaintiff is ready and willing to perform her part of the contract. Therefore, in the light of this specific clause, the plaintiff is only entitled to get back the advance amount along with Rs.10,000/- and no decree for specific performance can be granted. He further contended that the court below did not frame the appropriate issues and in a mechanical manner passed the decree. He pointed out that the trial court after recording the finding that the plaintiff was ready and willing to perform his part of the contract, held that she is entitled for decree for specific performance. He contended that the plaintiff did not make out any case for specific performance. He further contended that merely because the plaintiff could prove that she is ready and willing to perform her part of the contract, that will not entitle her for the relief of specific performance, which is discretionary. He pointed out under sub section 3 of Section 20 of Specific Relief Act, 1963 the court has to exercise the discretion to decree the suit for specific performance and in the present case, no reasons were recorded for granting the decree for specific performance and in the absence of reasons for exercising the discretionary jurisdiction, the decree of the court below is not sustainable. In support of his contention that granting the decree for specific performance is not automatic and that it is one of discretion of the court and that the court has to consider the facts and circumstances meticulously, he relief on the judgment of the Apex Court reported in GOBIND RAM vs. GIAN CHAND[1] With these averments, he sought to set aside the judgment and decree of the trial court. 13. On the other hand the learned Senior Counsel Sri N.V.Suryanarayana Murthy, supporting the impugned order contended that the trial court after appreciating the entire evidence, in proper perspective, and by cogent and convincing reasons, decree the suit for specific performance and the same does not warrant any interference. He further contended that mere non-framing of any particular issue, will not vitiate the judgment, provided the court considers the entire material and answers all the issues raised by the parties. In support of his contention, he relied on the judgment of a Division Bench of this court in GORRELLA DURGA VARA PRASADA RAO v. INDUKURI RAMA RAJU[2]. He further contended that merely because the plaintiff sought for damages, that cannot be the ground to reject the relief of specific performance. In support of this contention, he relied on the judgment of the Apex Court in MOTILAL JAIN v. RAMDASI DEVI[3]. Relying on the judgment of a learned single Judge of this court in T.J.JAYARAMA REDDY vs. BINGI SREERAMAIAH CHETTY[4] and also on the judgment of the Apex Court reported in PRAKASH CHANDRA vs. ANGADLAL[5] he contended that the ordinary rule is that the specific performance should be granted, but it can be denied only when equitable considerations point in its refusal and that the circumstances show that damages would constitute an adequate relief. He contended that no such equitable considerations were pointed by the appellants/defendants for refusal and, in these circumstances, the judgment and decree of the court below in granting the decree for specific performance, warrants no interference. He contended that the right from the beginning the respondent/plaintiff was ready and willing to perform her part of the contract and she also paid substantial amount, in pursuance of the agreement and also got issued legal notice and filed suit and proved her case and thereby incurred expenditure. Therefore as per Section 35 of the C.P.C., the respondent/plaintiff is entitled for costs, but the court below did not award any costs and also did not assign any reasons for not awarding costs. He contended that though the appeal is filed by the defendant, the plaintiff/respondent can seek for awarding of costs. In support of his contention that the respondent/plaintiff is entitled for costs, he relied on the judgments reported in T.S.SWAMINATHAODAYAR vs. OFFICIAL RECEIVER OF WEST TANJORE[6], MAKKALA NARSIMLU vs. GUNNALA RAGHUNANDAN RAO[7], MUNICIPAL CORPORATION OF DELHI vs. KAMLA DEVI[8] and S.B.NORONAH vs. PREM KUMARI KHANNA[9]. With these contentions, he sought to dismiss the appeal with costs. 14. In view of the above rival contentions and facts and circumstances of the case, the following points would arise for consideration in this appeal: 1. Whether the trial court is justified in decreeing the suit for specific performance, on the ground that the plaintiff could show his readiness and willingness in performing her part of the contract? 2. Whether the plaintiff is entitled for costs? 15. In order to consider the above issues, it is necessary to note few admitted facts and the evidence available on record. 16. The undisputed facts are that the defendant no.1 – Smt. Asia Begum, who died during the pendency of the suit, is the absolute owner of the suit schedule property and the plaintiff – Smt. Mohamuda Begum entered into an agreement of sale with her, for purchase of the suit schedule site admeasuring 390 sq. yards at the rate of Rs.930/- per sq. yard and the plaintiff paid an amount of Rs.10,000/- and entered into an agreement of sale, which is reduced into writing and is marked in the suit as Ex.A-1 dated 9.2.1996. It was agreed to pay the balance sale consideration within five months by 8.7.1996 and the defendant no.1 agreed to executed a registered sale deed in favour of the plaintiff. The plaintiff also paid an amount of Rs.90,000/- on 22.4.1996, out of the remaining sale consideration and the said payment was endorsed on Ex.A-1 agreement of sale and the said endorsement is marked as Ex.A-2. As the defendant failed to executed the registered sale deed, the plaintiff got issued legal notice dated Ex.A-3 dated 17.7.1996 and the defendant gave reply notice dated 22.7.1996, which is marked as Ex.A-4 and under Ex.A-5 the plaintiff issued rejoinder notice dated 25.7.1996. The plaintiff also gave telegram dated 9.7.1996 under Ex.A-6, requesting the defendant to execute the sale deed and further the plaintiff also got marked Ex.A-7 approved master plan for the suit plot. 17. From the above facts, it could be seen that the plaintiff paid substantial amount of Rs.1,00,000/- to the 1st defendant on 9.2.1996 and 22.4.1996 and the defendant endorsed the said payments. It is also un disputed that though there is misunderstanding between the parties with regard to the extent of site, since as per the agreement of sale, the defendant agreed to sell 390 sq. yards, but actually there was about 417 sq. yards, ultimately by exchange of legal notices and particularly under Ex.A-5, the plaintiff has agreed to purchase the entire extent of 417sq. yards. Therefore, it can safely be inferred that there is no dispute with regard to the extent of property agreed to be purchased by the plaintiff. 18. The plaintiff was examined as P.W.1 and she deposed about the above events and categorically stated that she is ready and willing to perform her part of the contract. Though she was cross-examined, as found by the court below, there is no cross-examination, suggesting that she is not ready and willing to perform her part of the contract. P.W.2 who is the attester of the agreement of sale under Ex.A- 1, he supported the version of P.W.1. 19. On the other hand, the case of the defendant no.1 who filed written statement and which is adopted by other defendants, after the death of the defendant no.1 pending the suit is that, the plaintiff is not ready and willing to perform her part f the contract. Their case is that they filed I.A.No.2787/1996 on 1.11.1996 seeking the plaintiff to deposit the remaining amount and as the plaintiff did not deposit the amount, it has to be inferred that she is not ready and willing to perform her part of the contract. The D.W.1 who was examined on behalf of the defendants also deposed as per the contents in the written statement and, it is to be noticed that he did not state any facts disclosing that there are no bona fides in the contention of the plaintiff about her readiness to perform her part of the contract as on the date of filing of the suit. 20. The defence taken by the defendants, is in hypothetical nature. As per the explanation (i) to Section 16 (1) “Where a contract involved 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.” Therefore as per Section 16, the plaintiff need not deposit the amount and has to await the directions of the court. In the plaint, the plaintiff has stated in categorical terms that she is ready and willing to deposit the balance of sale consideration as and when the court directs for its deposit. There is admittedly no direction from the court. However, the plaintiff deposited the amount and the case of the counsel for the plaintiff is that as the plaintiff was residing at Utter Pradesh, running a circum company, he could not intimate about the contents of I.A.No.2787/1996 with regard to the deposit of the amount and as soon as he could intimate, the plaintiff deposited the balance sale consideration, within three months. The explanation offered by the counsel, was not disputed by the other side and they are harping only on the delay in deposit of the amount, which cannot be countenanced. 21. It is to be conspicuously noticed that the defendants in their written statement only sought the plaintiff to deposit the balance amount within certain time and they also filed I.A.No.2787/1996 for deposit of the amount. However, the plaintiff could deposit within three months, even without the direction of the court. 22. Considering all these facts and circumstances, the trial court rightly held that the plaintiff is ready and willing to perform her part of the contract and that she did not commit any breach of contract. 23. Here the contention of the counsel for the appellants/defendant is that the decree for specific performance is a discretionary relief and the court below without recording any records and only by recording the finding that the plaintiff is ready and willing to perform her part of the contract, held that the plaintiff is entitled for grant of decree for specific performance. As no reasons were recorded, the decree is liable to be set aside. 24. There is no dispute that the grant of decree for specific performance is discretionary and the court has to record reasons. In the present case, the court has categorically recorded finding with regard to readiness and willingness on the part of the plaintiff in performing her part of the contract, based on the evidence available on record. The circumstances in the present case point for grant of decree for specific performance. As already noted above, the defendant in the written statement only contended that the plaintiff is not ready and willing to perform her part of the contract and sought the plaintiff to deposit the balance amount into the court within certain period. Without their being any direction, the plaintiff need not deposit the amount and on the other hand, she has to proved that as on the date of the filing of the suit, he is ready and willing to perform her part of the contract. In the plaint also she stated in categorical terms that she is ready to deposit the balance amount as per the directions of the court. Based on the evidence, both oral and documentary, the plaintiff proved that she is willing to perform her part of the contract and even without their being any direction from the court, as sought by the defendants, she deposited the entire balance sale consideration into the court and this also proves her bona fides. 25. Further, it is well settled that the ordinary rule is that the specific performance should be granted and it can be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. In the present case, as already noted above, the plaintiff could prove that she is ready and willing to perform her part of the contract and the defendants in their written statement only sought the plaintiff to deposit the balance consideration within certain time and the same was deposited by the plaintiff, with certain delay and the explanation offered by the counsel for the plaintiff was not seriously disputed by the defendant. Further these circumstances, in my considered view, lead to the specific conclusion that the decree for specific performance shall be granted by the court, exercising the discretionary jurisdiction and I do not find any equitable considerations pointing to the refusal of such relief. 26. Therefore, the court below rightly considering these circumstances, held that the plaintiff is entitled for the decree of specific performance. 27. The other contention of the counsel for the appellants/defendants that the court below did not formulate specific issues with regard to the controversies between the parties and only framed the point that “the simple point for consideration is whether there are bona fides in the contention of the plaintiff that she is ready to perform her part of contract or she made such contention to gain time or not”? 28. The contention of the counsel for the appellants is without any substance, for the reason, that the court below has specifically framed three issues touching the controversy between the parties at the threshold of the judgment and during the course of noting respective contentions, crystallized the issue with regard to readiness and willingness on the part of the plaintiff. But, however, ultimately by answering the issues framed, decreed the suit. Therefore the contention of the counsel for the appellants is without any merit. 29. Further, it is well settled that non-framing of any specific issue will not render the judgment invalid, provided the court answers the controversy between the parties by recording cogent reasons, by considering the entire evidence on record. A Division Bench of this court in the decision reported in ALI MOHAMMOD v. SPL. COURT UNDER A.P. LAND GRABBING (PROHIBITION) ACT[10], considering Order 41, Rule 31 of C.P.C. held as under: “9. The idea behind Order 41 Rule 31 code of Civil Procedure is that the Court while passing the judgment shall apply its mind to the evidence made available on record and secondly, whether both the parties did understand on what point they have to