HON’BLE SRI JUSTICE C.V. RAMULU SECOND APPEAL No.222 of 2010 DATE:26.03.2010 Between: Desu Vimala … Appellant and Manohar Singh … Respondent HON’BLE SRI JUSTICE C.V. RAMULU SECOND APPEAL No.222 of 2010 JUDGMENT: This second appeal, under Section 100 of C.P.C., is directed against the judgment and decree, dated 18.01.2010, made in A.S.No.185 of 2006, on the file of the I Additional District Judge, Nellore, whereunder the judgment and decree, dated 28.08.2006, in O.S.No.452 of 2004, passed by the learned III Additional Junior Civil Judge, Nellore, decreeing the suit for specific performance of agreement of sale dated 23.04.2003, was confirmed. 2. The appellant is the defendant and the respondent is the plaintiff in O.S.No.452 of 2004 on the file of the III Additional Junior Civil Judge, Nellore. The suit was filed against the defendant, seeking a decree of specific performance of agreement of sale dated 23.04.2003. It is stated that the plaintiff entered into an agreement of sale with the defendant, in respect of the suit schedule property, under Ex.A.1, dated 23.04.2003, and the plaintiff received a sum of Rs.40,000/- from the defendant towards part payment of sale consideration. On 22.07.2003, the plaintiff again received a sum of Rs.5,000/- from the defendant and the same was endorsed on the reverse of Ex.A.1 agreement of sale. It is also stated that on the ground that the registered sale deeds relating to the suit schedule property were pledged with the Andhra Bank, Balajinagar Branch, Nellore, the defendant extended the time for execution of registered sale deed till 28.02.2004. It is alleged that thereafter, inspite of repeated requests made by the plaintiff, the defendant did not execute the registered sale deed, even though the plaintiff was ready and willing to perform his part of contract, by paying the balance of sale consideration. Then, the plaintiff got issued a legal notice to the appellant under Ex.A.3, dated 05.03.2004. Having received the same, as the defendant did not respond, the plaintiff filed the suit for the relief as stated supra. 3. The defendant filed a written statement denying the averments of the plaint. 4. On the basis of the above pleadings, the following issues were framed for trial: (i) Whether the plaintiff is entitled for the specific performance, as prayed for? (ii) Whether the time is essence of suit contract of sale? (iii) Whether the plaintiff is ready and willing to perform his part of contract? (iv) To what relief? 5. On behalf of the plaintiff, P.Ws. 1 and 2 were examined and Exs.A.1 to A.4 were marked. On behalf of the defendant, D.Ws.1 and 2 were examined and Exs.B.1 to B.8 were marked. 6. After a thorough appreciation of both oral and documentary evidence, the trial court came to the conclusion that by issuing Ex.B.7 notice, the plaintiff has shown his readiness and willingness to perform his part of contract by paying the balance of sale consideration to the defendant and the time was not the essence of the contract, and accordingly, decreed the suit in favour of the plaintiff, as prayed for, by judgment dated 28.08.2006. Challenging the same, the defendant filed A.S.No.185 of 2006 on the file of the I Additional District Judge, Nellore. The appellate court, after perusal of the entire material placed on record and the judgment of the trial court, came to the conclusion that the trial court has not committed any error calling for its interference. Thus, while confirming the judgment and decree passed by the trial court, it dismissed the appeal, by judgment, dated 18.01.2010. Aggrieved thereby, the defendant filed the second appeal. 7. Heard both sides. 8. The learned counsel for the appellant has strenuously contended that the time was the essence of the contract and under Ex.A.2, dated 22.07.2003, no date was fixed extending the time for execution of registered sale deed, as was available under Ex.A.1. 9. On a perusal of the findings recorded by the courts below as well as a copy of Ex.A.2 part payment endorsement, dated 22.07.2003, it is categorically revealed that after receiving Rs.5,000/- towards part payment of sale consideration from the plaintiff, the defendant has extended the time for execution of registered sale deed up to 28.2.2010. Under those circumstances, it cannot be said that the time was not extended and the time was the essence of the contract and the same was not properly looked into by the courts below. Therefore, this Court is of the view that no substantial questions of law arise for consideration in the second appeal. 10. Accordingly, the second appeal is dismissed. There shall be no order as to costs. ________________ C.V. RAMULU, J 26th March, 2010. CBS HON’BLE SRI JUSTICE C.V. RAMULU SECOND APPEAL No.222 of 2010 (Dismissed) 26th March, 2010 CBS