IMPORTANT POINT
Agreement to sell – Plaintiff is entitled for specific performance of contract if he avers and proves that he has performed or has always been ready and willing to perform his obligation under the contract.

JUDGMENT :

KRISHNA MURARI, J.

These two appeals are directed against the judgment and final order dated 05.10.2010 passed by the High Court of Andhra Pradesh at Hyderabad (hereinafter referred to as ‘High Court’) in Appeal Suit No. 45 of 2008 filed by Respondent No. 1 herein against the judgment and decree dated 22.08.2007 passed by the Additional Senior Civil Judge, Ongole (hereinafter referred to as ‘Trial Court’) in O.S. No. 142 of 2004; and order dated 10.12.2010 in ASMP No. 2292 of 2010 filed by the Appellants herein, seeking to recall the aforementioned judgment dated 05.10.2010 passed in Appeal Suit No. 45 of 2008.

2. The High Court allowed Appeal Suit No. 45 of 2008 filed by Respondent No. 1 and set aside the judgment and decree dated 22.08.2007 passed by the Trial Court in O.S. No. 142 of 2004, thereby directing the Appellants herein to execute sale deed in favour of Respondent No. 1 herein after receiving balance sale consideration. The subsequent ASMP No. 2292 of 2010 filed by the Appellant herein was dismissed.

BRIEF FACTS:

3. The Appellants in the present case (represented by their maternal grandmother) are the minor children of one G. Venugopala Rao, who died on 13.05.2003, leaving behind his wife and the Appelants herein. The brief facts giving rise to the present appeals are that during his lifetime G. Venugopala Rao purchased the suit schedule property measuring Ac. 0.90 cents from one B. Alivelu Mangamma under a registered sale deed and obtained possession of the same. Subsequently, on 14.08.2002, G. Venugopala Rao executed an agreement of sale with Respondent No. 1 herein, whereby he agreed to sell the aforementioned suit schedule property measuring Ac. 0.90 cents to Respondent No. 1 herein for a sale consideration of Rs. 11,88,000/-(@ Rs. 2,200/-per annum) out of which Respondent No. 1 herein paid an amount of Rs. 4,00,000/-as advance. Under the said agreement, G. Venugopala Rao agreed to execute the sale deed in favour of Respondent No. 1 after demarcating the land and receiving the balance sale consideration within three months.

4. Upon expiry of three months, G. Venugopala Rao issued a notice dated 02.01.2003 to Respondent No. 1 herein, demanding the balance consideration of Rs. 7,88,000/-, failing which, the sale agreement date 14.08.2002 would stand cancelled and the advance amount of Rs. 4,00,000/- would be confiscated.

5. Respondent No. 1 herein sent a reply dated 10.01.2003 to the aforementioned notice, denying the allegations of non-payment of balance amount despite repeated demands. It was also stated that subsequent to the execution of sale agreement, Respondent No. 1 herein got to know that G. Venugopala Rao owed a debt of Rs. 1,69,017/- to one Ch. Subbayamma, who had filed a suit (being O.S. No. 188 of 2002) before the Senior Civil Judge, Ongole for recovery of the said amount, and the property in question had been attached in the said suit. By way of the said reply notice, G. Venugopala Rao was asked to get the property measured, get its attachment removed, following which Respondent No. 1 herein would pay the balance sale consideration and get the property registered in her name.

6. G. Venugopala Rao sent a rejoinder notice dated 21.01.2003 to the aforementioned reply notice, wherein he denied the allegation that the land is not measured and stated that the same has been duly measured by the surveyor and boundaries have been fixed. It was further stated that Respondent No. 1 herein may deposit an amount of Rs. 1,69,017/-in the aforementioned O.S. No. 188 of 2002 from the balance sale consideration and pay the remaining amount to G. Venugopala Rao, failing which the sale agreement shall stand cancelled.

7. It appears that during his lifetime, G. Venugopala Rao borrowed amounts of Rs. 2,40,000/-and Rs. 2,00,000/-from Kalluri Kondaiah (Respondent No. 2 herein) and M. Koteswara Rao (husband of Respondent No. 3 herein), respectively. After G. Venugopala Rao’s death on 13.05.2003, Kalluri Kondaiah and M. Ko