HON’BLE SRI JUSTICE A.GOPAL REDDY DT. 9-4-2010 S.A.No.243/2010 Katakam Venkata Ramayya …Appellant V. 1. Bellamkonda Venkata Narasamma and others. ..Respondents HON’BLE SRI JUSTICE A.GOPAL REDDY S.A.No. 243/2010 JUDGMENT: The plaintiff, who is unsuccessful in obtaining a decree for specific performance except refund of advance amount of Rs.10,000/-, which was modified as Rs.1,10,000/- by the lower appellate court filed this second appeal against the judgment and decree of the IV Additional District Judge, Kakinda dt. 22-10-2009 passed in AS No.226/2006. The appellant-plaintiff filed the above suit for specific performance of agreement of sale for one acre against the respondents-defendants alleging that the first defendant who was the absolute owner of Ac.5-31 cents of land covered by S.Nos.259, 258/18 of Ramanayyapeta village to discharge sundry debts offered to sell the land to the plaintiff, for which the plaintiff agreed to purchase at the rate of Rs.1,75,000/- per acre for a total consideration of Rs.9,29,250/- and entered into an agreement on 6-6-1994, on which date the first defendant received a sum of Rs.1,10,000/- towards advance and the plaintiff agreed to obtain the registered sale deed by paying balance of sale consideration within 15 days from the date of agreement. After entering into agreement, the plaintiff paid Rs.1,36,000/- on 28-12-1994 and obtained an endorsement on the back of the agreement and also paid Rs.1,18,000/- on 13-5-1995 under a separate receipt. The first defendant also received another sum of RS.1,00,000/- on 21-12-1995 and Rs.2,00,000/- on 13-1-1996 by way of bank cheques, for which necessary endorsement was made on the back of the sale agreement. It is also alleged that after receiving the amount, the first defendant executed a sale deed on 27-6-1996 for an extent of Ac.2-00 for a total consideration of Rs.3,50,000/- for a portion of the land for which an agreement was executed earlier, and another sale deed on 17-8-1996 for Ac.2-31 cents of land for a consideration of Rs.4,04,250/-. So, the total considered received under the two sale deeds was Rs.7,54,250/- for Ac.4-31 cents. According to the plaintiff, for the balance of one acre of land, he has to pay Rs.1,75,000/-. Out of Rs.2 lakhs received by the first defendant on 13-1-1996 by way of two cheqeus, Rs.1,00,000/- was adjusted for the sale deed dt. 17-8-1996 and Rs.1,00,000/- is remained with the first defendant which is to be adjusted towards the remaining Ac.1-00 of land towards part of sale consideration. Further, the plaintiff paid Rs.10,000/- to the first defendant on 27-3-1996. Thus, an amount of Rs.1,10,000/- is with the first defendant towards advance for one acre of land for which, he has to execute a sale deed and only another Rs.65,250/- is left as balance sale consideration to be paid by the plaintiff. The plaintiff prepared to pay the balance of sale consideration of Rs.65000/- and made a request to that effect, but the first defendant expressed his inability to obtain income tax clearance certificate. In the meanwhile, the first defendant executed a registered settlement deed in favour of his wife, the second defendant, on 14-10- 1996 for Ac.0-50 cents, which is not binding on the plaintiff. When the first defendant did not come forward to execute the sale deed, the plaintiff got issued a legal notice on 15-1-1997 and in the said notice, he mistakenly not mentioned the advance amount as Rs.1,10,000/-. The first defendant filed written statement while admitting the execution of the agreement of sale in favour of the plaintiff for Ac.5-31 cents of land on 6-6-1994 and execution of two sale deeds in pursuance of it stated that he agreed to sell the land at Rs.1,80,000/- per acre but not at Rs.1,75,000/- as mentioned in the agreement. He also entered into another agreement with the plaintiff for another half acre of land on the same day with the same terms along with his sons. At that time, the plaintiff paid a sum of Rs.1,10,000/- for the first agreement and Rs.10000/- for the second agreement and agreed to get the sale deeds registered within 18 months from the date of agreement. There is a forfeiture clause in the agreement to forfeit the advance amount paid in the event of plaintiff failing to obtain the sale deed by paying the balance of sale consideration within 18 months from 6-6-1994. At that time, the plaintiff requested the first defendant to mention in the agreement the sale consideration at Rs,175000/- per acre and promised to pay Rs.5000/- per acre separately stating that he intends to purchase Ac.40-00 of land from others in that area and if the rate is mentioned at Rs.1,80,000/- per acre in the agreement, others may also demand the same price. The first defendant, being an innocent and not worldly wise person, taking advantage of it, the plaintiff obtained endorsements on the back of agreement for the payment of Rs.1,36,000/- and also claimed interest at 36% per annum on the payment of Rs.1,00,000/-. On 13-5-1995 the plaintiff paid only Rs.1,00,000/- but obtained receipt for Rs.1,18,000/- calculating interest at 36% per annum for six months. The plaintiff paid Rs.1,00,000/- on 21-12-1995 and Rs.2,00,000/- on 13-1-1996.The first defendant received a total sum of Rs.7,00,250/- including the advance paid at the time of sale agreement. The plaintiff got registered a sale deed for half acre of land in his name on 28-6-1996 which belonged to the wife of the first defendant and paid Rs.87500/- which includes the advance amount of rs.10000/- which is a separate transaction. The plaintiff has to pay a balance of Rs.54,000/- for the two sale deeds executed for a total extent of Ac.4-31 cents. The plaintiff is liable to pay the differential amount of sale consideration originally agreed between the parties. The trial court framed the following issues for trail: 1.Whether the suit land was sold at the rate of Rs.1,80,000/- per acre? 2. Whether the plaintiff paid Rs.1,10,000/- to D-1 for one acre land? 3.Whether the plaintiff is entitled for specific performance with possession of suit land or in the alternative for suit amount? 4.Whether the suit is barred by limitation? 5. To what relief? Additional issues: 1. Whether time is essence of contract? 2. Whether the suit agreement is binding on the first defendant and second defendant? On behalf of the plaintiff, P.Ws.1 to 3 were examined and Exs.A-1 to A-11 were marked. On behalf of the defendants, D.Ws.1 to 5 were examined and Exs.B-1 to B-4 were marked. The trial court on appreciation of the oral and documentary evidence adduced by the parties, while dismissing the suit in so far it relates to specific performance of an agreement of sale granted alternative relief viz., refund of advance amount of Rs.175000/- holding that the plaintiff is entitled for refund of Rs.10,000/- from the estate of deceased first defendant in the hands of defendants 2 to 5 with interest at the rate of 12% per annum from 27-3-1996 till the date of realization. Feeling aggrieved by the same, the plaintiff carried the matter in appeal. The lower appellate court after re-appreciating the evidence dismissed the appeal while confirming the decree of the trial court dismissing the suit for specific performance and modifying the decree for refund of the amount at Rs.1,10,000/- as against Rs.10,000/- as awarded by the trial court. Aggrieved by the same, the present appeal is filed. Heard the learned counsel for the appellant at the stage of admission. The plaintiff, who himself examined as P.W.1, admitted in his cross-examination that he suffered a loss in the business and was in need of money. As on 17-8-1996 he has no money to obtain the registered sale deed for one acre of land. It is admitted by the plaintiff that the first defendant agreed to sell the land was to discharge the debt and not to acquire any property. It is not the case of the plaintiff either in the pleadings or in the evidence that he was ready with money to obtain registered sale deed and was always ready and willing to perform his part of contract. From the evidence of P.W.1, it is clear when the first defendant executed two sale deeds covered under Exs.A-5 and A-6 in favour of the plaintiff, the plaintiff has no sufficient money to get the sale deed for one acre of land. When the plaintiff failed to offer that he is ready and willing to perform his part of contract, both the courts rightly not granted the decree for specific performance, which is an essential condition for granting the equitable relief. Both the courts concurrently refused to grant a decree for specific performance. The discretion exercised by the trial court, in refusing to grant decree for specific performance, on the admitted evidence, as confirmed by the lower appellate court, do not give rise to any question of law, much less substantial question of law to be decided in the present second appeal. The second appeal is accordingly dismissed at stage of admission. _______________ A. GOPAL REDDY, J Date:9-4-2010 kmr