THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.481 OF 1991 JUDGMENT: The plaintiff in O.S.No.80 of 1982 on the file of the Court of Suborindate Judge, Kadapa is the appellant herein. The suit was filed for specific performance of contract of sale dated 28-01-1980. According to the case of the plaintiff, defendant Nos.1 and 2 agreed to sell the suit schedule property, which is a building with some spare parts, on 28-01- 1980 for a sum of Rs.20,000/- and received a sum of Rs.6,000/-. The balance of sale consideration has to be paid on or before 30-04-1980 and in case of default by plaintiff the advance amount can be forfeited and in case of default by the defendants, the plaintiff can enforce through the court and shall be entitled for a further amount of Rs.6,000/- as damages. The plaintiff was always ready and willing to perform the contract and on 30-04-1980 the plaintiff went to the Sub-registrar’s office and waited there but the defendants did not turn up. The plaintiff also deposited a sum of Rs.14,000/- which is the balance in Syndicate Bank, Rayachoti. As the defendants did not turn up a telegraphic notice was given and the legal notice was also given. On 01-05-1980 the defendants sent a reply as if the plaintiff had committed default. On 05-05-1980 the defendants sent another notice expressing their willingness to abide by the agreement. The plaintiff came to know that subsequently the defendants have removed some of the spare parts on 19-01-1982 and then the plaintiff got issued a notice for execution of the sale deed but the defendants failed to do so and therefore, the suit. The defendants 1 and 2 filed a written statement contending that the suit agreement came into existence in pursuance of the compromise in an earlier suit in O.S.No.75 of 1975 which was filed by the plaintiff’s father. The execution of the agreement is admitted but pleaded that the time is the essence of the contract. According to the defendants, the plaintiff has committed breach. It was also further pleaded that till the end of March they waited for balance to be paid and in the first week of April 1980 the defendants visited the house of the plaintiff twice but plaintiff had no money and affixed the date as 30-04-1980 for performance as per contract. On 30-04-1980 the defendants went to the house of the plaintiff and plaintiff repeated that he had no money and therefore they went away at about 1.00 P.M. Thereafter, the telegram notice was given at about 1.30 P.M with false allegations and therefore the plaintiff is not entitled for the relief of specific performance. As the 3rd defendant claims to have purchased the property after the suit, he was added as a party to the suit. He filed a written statement denying the knowledge of the agreement but pleading that he is a bonafide purchaser for a valuable consideration. On the basis of the above pleadings, the following issues and additional issues have been framed for trial. 1. Whether the plaintiff was always ready and willing to perform the part of the contract? 2. Whether the plaintiff has committed breach of the agreement or whether the defendants committed breach of the agreement? 3. Whether the suit is barred by time? 4. Whether the agreement is not specifically enforceable? 5. To what relief? Additional issues:- 1. Whether the agreement of sale is true, valid and binding on D- 3? 2. Whether D-3 is the rightful owner of the schedule property? 3. Whether the plaintiff is entitled to claim the suit property from D-3? 4. Whether there is any cause of action against D-3. 5. Whether the plaintiff by conduct waived the contract? On behalf of the plaintiff, PW.1 was examined and marked Exs.A-1 to A-8. On behalf of the defendants DWs.1 to 3 were examined and marked Exs.B-1 to B-9. After considering the evidence on record, the learned Subordinate Judge dismissed the suit and aggrieved by the said judgment the present appeal is filed. Now the points that arise for consideration are:- 1. Whether the plaintiff was ready and willing to perform the part of contract? 2. Whether the plaintiff is entitled for the relief of specific performance of contract? 3. Whether the judgment and decree passed by the learned Subordinate Judge is legal and sustainable? POINTS: The learned counsel for the appellant contends that the judgment of the lower court is inconsistent and having held on issue No.1 that the plaintiff was always ready and willing to perform the part of the contract, the finding on issue No.2 is totally bad and there is no question of waiver of contract by the conduct and therefore the judgment is liable to be set aside. There is no dispute about the fact that in pursuance of a compromise in an earlier suit O.S.No.75 of 1975 the suit agreement came into existence and a sum of Rs.6,000/- was paid. It is also not in dispute that balance was agreed to be paid by 30-04-1980. The consequences of default are also stipulated in the agreement. According to the claim of the defendants, even prior to 30-04-1980 they asked the plaintiff to pay the balance of consideration but he had no money and consequently on 30- 04-1980 they went to the village of the plaintiff and returned at about 1.00 P.M as the plaintiff stated that he had no money. On the other hand, according to the case of the plaintiff, he went for registration with a sum of Rs.14,000/- and purchased the stamp papers under Ex.A-2 and waited there but the defendants did not turn up. Thereafter, an amount of Rs.14,000/- was deposited in a bank and telegraph notice was issued. Under Ex.A-5 reply the defendants had made some allegations but in Ex.A-6 dated 05-05-1980 they expressed their willingness to abide by the terms of the contract. It is useful to be noted that the lower court found that time is not essence of the contract. It is to be mentioned that under Ex. A-1 the time for performing contract is dated 30-04-1980. It is important to see the finding of the lower court under issue No.1 as under:- “ the evidence in this case clearly indicates that the plaintiff was always ready and willing to perform his part of the contract and he had necessary funds to pay the balance of sale consideration to defendant Nos.1 and 2 to bear the registration expenses. The contention of the defendants that the plaintiff had deposited the amount and withdrew the same only on the advice his lawyer has no reason to disbelieve his evidence. It is not the fault of the plaintiff for consulting his lawyer when he is expected to consult the lawyer when the defendants 1 and 2 failed to attend the Sub-Registrar’s office. So in that view of the matter, I have no hesitation to disbelieve the evidence of the plaintiff to show that is ready and willing to perform his part of the contract. I accordingly answer this issue in favour of the plaintiff.” Having held so by strange reasoning in issue No.2, the learned judge held that after 05-05-1980 after the issuance of Ex.A-6 notice for fixation of the date for execution of the contract the plaintiff has not acted and therefore he committed the breach. When once the court accepts that the plaintiff is always ready and willing to perform the contract and fault was with the defendants and has committed the breach on 30-04-1980 by not attending the registration, it cannot be further argued that there was a subsequent breach by the plaintiff and that he is not entitled for the relief of specific performance. It is to be noted that in an agreement for specific performance the court has to consider the conduct of the both parties. It is not as though that everything has to be decided on the conduct of the plaintiff alone. When once by 30-04-1980 when the defendants have failed to perform their part and the readiness and willingness of the plaintiff within the stipulated time is accepted, then the subsequent notice given by the defendants under Ex.A-6 has no relevancy. The claim of the plaintiff therefore cannot be discarded and the law provides that the plaintiff can file a suit for specific performance of the contract within the three years from the date fixed or from the date of refusal. In this case, the suit is well within the time as it is filed three years from 30-04-1980 and the refusal by the defendants on that day and subsequent notice Ex.A-5. It cannot be presumed that deposit of Rs.14,000/- on 30-04-1980 is a make believe story since he has purchased the stamps for registration also. This conduct of the plaintiff clearly goes to show that the plea of the defendants that they have gone on 30-04-1980 to the house of the plaintiff and that he has informed that he had no money cannot be believed. It is well settled that in case for specific performance the readiness and willingness need not be proved on every day and every minute. The amount was deposited in the bank and thereafter it was also said to have been deposited in the court. If the plaintiff has withdrawn the amount consequent on the breach by the defendants, it is no ground to say that he was not ready and willing to perform the contract and failure to give a reply notice to Ex.A-6 cannot also be taken as a case for waiver of the contract. Therefore, in view of the above circumstances, as rightly contended by the counsel for the appellant, the finding on issue No.1 clearly wipes out the finding on issue No.2 which is totally inconsistent from the evidence on record and from the own reasoning of the learned judge. But, however, in a suit for specific performance it is not necessary the relief of specific performance should be granted merely because it was asked and found to be entitled, the court has got a discretion which should be based on a sound reasoning. In this case, the suit is of the year 1984 and almost two-and-a-half decades have passed and the property was said to have been purchased by the 3rd defendant. Therefore, I feel in lieu of specific performance the plaintiff can be granted compensation against all the defendants including the subsequent purchaser (Defendant No.3) whose sale does not bind the plaintiff and that it was hit by lis pendens. Therefore, in view of the above circumstances, apart from the value of the contract which is Rs.20,000/- and as agreed under the contract to refund the advance amount of Rs.6,000/-, and the interest of justice would meet if a decree of compensation of Rs.26,000/- is granted in lieu of relief of specific performance. Accordingly, the points are answered. In the result, the Appeal Suit is allowed and the suit of the plaintiff is decreed for recovery of Rs.26,000/- as compensation in lieu of specific performance with interest @ 6% from the date of suit till the date of realization against all the defendants and a charge is also created over the property. The plaintiff is entitled for costs through out. _______________________ N.R.L.NAGESWARA RAO,J 17-08-2011 TSNR