(per the Hon’ble Mr.Justice

D.S.R. Varma)

Aggrieved by the judgment and decree, dated 06-03-2006, passed in O.S.No.422 of 2003, by the IX Additional Chief Judge, City Civil Court (Fast Track Court) at Hyderabad, decreeing the suit for specific performance of the agreement of sale, dated 09-05-2003, and for a consequential injunction to restrain the defendant from transferring or alienating or changing the nature of the suit schedule property, the present City Civil Court Appeal is filed by the defendant in the suit.

2. Appellant is the defendant and respondents are the plaintiffs in the suit, before the court below.

3. For the sake of convenience, in this judgment, the parties herein are referred to as per their array in the suit.

4. The plaint averments, in brief, are that defendant is the absolute owner of the suit schedule property, bearing No.8-2-293/82/A 357, admeasuring 1176 sq.yards in Sy.No.120 (403-1, old), situated at Shaikpet village, Hyderabad of Jubilee Hills Cooperative House Building Society Limited, that there was an agreement of sale, dated 09-05-2003, under Ex.A-1, between the plaintiffs and the defendant to sell the suit schedule property for a sum of Rs.1,02,00,000/- and a sum of Rs.15,00,000/- was paid towards advance and the balance was agreed to be paid at the time of execution of the sale

deed.

5. It is further averred that as per the agreement of sale, the defendant has to execute the sale deed within a period of four months with a grace period of one more month, that it was further averred that the vacant possession of the suit schedule property, which was in occupation of the tenant, by name Dr.Kennedy, was agreed to be delivered at the time of execution of the sale deed.

6. It is the further averment of the plaintiffs that they approached the defendant calling upon him to execute the sale deed as they were ready and willing to pay the balance sale consideration, but the defendant could not do so because the tenant had not vacated the suit schedule premises and requested some more time for delivery of vacant possession, that the plaintiffs were having the balance sale consideration kept under the Fixed Deposit Receipts (FDRs) in Indian Overseas Bank, Basheerbagh Branch and also A.P. Mahesh Cooperative Urban Bank Limited. It is also averred that the plaintiffs, in fact, received a sum of Rs.54,00,000/in the land acquisition proceedings and for the purpose of capital gain, they have deposited the said amount in the bank in FDRs for the purpose of purchase of another property and consequently entered into the present agreement of sale.

7. The plaint averments further reveal that even after the expiry of the period of one month, as contemplated under Ex.A-1, when the defendant failed to get the tenant vacated, the plaintiffs got issued a telegraphic notice to the defendant showing their readiness and willingness to complete the sale transaction. It is also revealed that on receipt of the said telegraphic notice, the defendant sent a reply, dated 10-11-2003, under Ex.A-3, calling upon the plaintiffs to obtain a Demand Draft (DD) for Rs.87,00,000/- to proceed with the transaction. It is the further case of the plaintiffs that on receipt of the said telegram, the plaintiffs sent a reply, reminding the defendant that the vacant physical possession is the term of the agreement and the property is not yet vacant and unless the terms of the agreement is complied with, they cannot proceed further and, in fact, they are ready and willing to pay the balance sale consideration, that vide letter, 11-11-2003, under Ex.A-5, the defendant cancelled the agreement of sale and refunded the an amount of Rs.15,00,000/- by way of a cheque, which was paid towards advance at the time of execution of the agreement of sale. Hence, it is averred that the defendant has no right to cancel the agreement of sale in view of the fact that there was a lapse on his part by not getting the premises vacated by the tenant and hence