THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL Nos.931 and 934 of 2011 October 17, 2011 Between: Md. Ahmad Mohiuddin, S/o.Basheer Ahmad And another ... Appellants And Chinnam Ramakrishna Reddy, S/o.China Veeri Reddy And another ...Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL Nos.931 and 934 of 2011 COMMON JUDGMENT: Both the appeals under Section 100 of the Code of Civil Procedure, 1908 are against the common judgment dated 16.6.2010 in A.S.Nos.23 and 24 of 2006 of the Court of the VII Additional District Judge, Kakinada. Therefore it is expedient to dispose of them by a common judgment. The appellants in both the appeals are the defendants 2 and 3. The first respondent instituted the suit being O.S. No.12 of 2001 on the file of the Court of the II Additional Senior Civil Judge, Kakinada. It is for specific performance of agreement of sale dated 26.10.1997. He alleged that the first defendant is owner of the suit schedule property i.e., house plot admeasuring about 280 Sq.yards situated at Kakinada; the first defendant agreed to sell the same for Rs.1,20,000/- and executed agreement of sale on 26.10.1997; the first defendant was paid advance sale consideration of Rs.10,000/-; the plaintiff has to pay balance consideration of Rs.1,10,000/- and obtain sale deed on or before 30.12.1997. It is further case of the plaintiff that he made a publication in daily newspaper ‘City Star’ on 31.12.1997 asserting his rights under the agreement of sale as the first defendant prolonged execution of sale deed. After issuing the notice, when the plaintiff approached, the first defendant took some more time alleging that original document was misplaced. It came to knowledge of the plaintiff that the first defendant sold the property to defendants 2 and 3 under two separate sale deeds dated 17.8.2000. Therefore, the plaintiff who was ready and willing to perform his part of contract filed the suit. The first defendant filed the written statement admitting the agreement of sale and accepting Rs.10,000/- as advance. He, however, denied other averments and alleged that the plaintiff was never ready and willing to perform his part of the contract and that the conduct of the plaintiff must result in denial of specific performance of contract. The defendants 2 and 3 filed written statement taking the plea that they are bona fide purchasers without notice of prior agreement of sale. The trial Court framed three issues. During the trial the plaintiff deposed as P.W.1 and marked Exs.A1 to A9 besides examining P.W.2 also. The first defendant was examined as Court witness i.e., C.W.1. On behalf of defendants 2 and 3, the second defendant examined himself as D.W.1 and marked Exs.B1 to B5 besides examining D.W.2. On considering the evidence, the trial Court came to the conclusion that defendants 2 and 3 had notice of prior agreement of sale and that the plaintiff is entitled for the relief of specific performance. The suit was accordingly decreed directing the plaintiff to deposit the balance sale consideration with interest at 15% per annum from 30.12.1997. The defendants 2 and 3 filed A.S.No.24 of 2006 and the plaintiff filed A.S.No.23 of 2006 insofar as the decree directing him to pay balance consideration with interest at 15% per annum. The first defendant did not file any appeal. The Court of the VII Additional District Judge reconsidered the entire evidence and agreed with the findings of the trial Court. The appeal filed by the defendants 2 and 3 was dismissed and the appeal filed by the plaintiff was allowed holding that there was no delay or default on the part of the plaintiff. The Counsel for the appellants/defendants 2 and 3 relies on Umabai v Nilkanth Dhondiba Chavan[1], Mohammadia Coop. Building Society Ltd v Lakshmi Srinivasa Coop. Building Society Ltd[2], Azhar Sultana v B.Rajamani[3] and G.Jayashree v Bhagwandas S. Patel[4] and submits that the conduct of the plaintiff disentitled him from claiming specific performance. He would urge that as per Ex.A1 suit agreement the plaintiff was required to obtain sale deed after paying balance sale consideration on or before 30.12.1997 but admittedly he issued notice on the last day which would show that he was not ready and willing to perform his part of the contract through out the period of transaction. This Court has perused the judgment of the Courts below carefully. The first defendant admitted the suit agreement. He did not take plea that the time is essence of the contract. Faintly he urged that though time is not essence of the contract the plaintiff was required to obtain sale deed on or before 30.12.1997. Curiously, the first defendant or the defendants 2 and 3 did not pray the Courts below to frame an issue on the points now urged in these second appeals. Even otherwise both the Courts have recorded the findings that the plaintiff was ready and willing to perform his part of the contract and that there was no delay or default on his part. Further, admittedly the first defendant divided the suit schedule property into Parts-B and C and sold the property to the defendants 2 and 3 under Exs.A7 and A8 registered sale deeds dated 17.8.2000, after the plaintiff made publication in the Newspaper vide Ex.A5 dated 31.12.1997. This itself would improbablise the case of the defendants 2 and 3 that they had no notice of prior agreement of sale. The Courts below have correctly appreciated the factual background and no interference is called for in these second appeals nor there is any substantial question of law that would arise for consideration. The second appeals are, accordingly, dismissed. _______________ October 17, 2011 (V.V.S.RAO, J) YS [1] (2005) 6 SCC 243 [2] (2008) 7 SCC 310 [3] 2009(2) SCJ 794 [4] (2009) 3 SCC 141