Judgement

SMT. T. MEENA KUMARI, J. :-

This appeal is directed against the judgment and decree dated 1-10-1999 in O. S. No. 1046 of 1994 on the file the V Senior Civil Judge, City Civil Court, Hyderabad, whereby the learned Senior Civil Judge decreed the suit for specific performance of the agreement of sale D/- 3-6-1994.

2. The unsuccessful defendant is the appellant herein and the respondent herein is the first plaintiff in the above suit. Though the second plaintiff arrayed as second respondent herein, her name was deleted from the record as per the order in CMP No. 16823 of 2001, dt/- 31-10-2001. During pendency of the appeal, since the original appellant died, his wfe was brought on record as his legal representative.

3. The plaintiffs filed the suit for specific performance of the agreement of sale dated 3-6-1994. The case of the plaintiffs, as can be seen from the material allegations in the plaint, is as follows :-

(a) The defendant is the absolute owner and exclusive possessor of the suit schedule property having purchased the same under a registered sale deed document No. 1871/67, D/-10-7-1967 and he constructed house with due permission from the Municipal Corporation of Hyderabad. The defendant in order to meet his domestic necessities and to discharge debts, offered to sell the suit schedule house and the plaintiffs agreed to purchase the same for Rs 2 crores. They both entered into agreement of sale dated 3-6-1994 and the plaintiffs paid a total sum of Rs. 18 lakhs by 3-6-1994 including Rs. 6 lakhs on 25-5-1994 which is evident from the suit agreement of sale and the receipt dated 3-6-1994. As per the agreed terms of the suit agreement of sale, from out of the balance sale consideration of Rs. 182.00 lakhs, a sum of Rs. 32.00 lakhs had to be paid by the end of June, 1994 on the defendant executing power of attorney and other necessary papers in favour of the plaintiffs or their nominees to obtain necessary permission from the M.C.H., for construction etc., Rs. 50.00 lakhs each was payable before 31-1-1995, 30-4-1995 and at the time of registration respectively. As per the covenants of the agreement of sale the defendant has to obtain Income-tax clearance, to pay all the taxes, electricity charges, water charges and other statutory liabilities up to the date of execution of sale deed. The plaintiffs are entitled to deduct the proportionate value of the affected area, if any, at the rate of Rs. 22,222/- per sq. yd., from the total sale consideration in the road widening. In the last week of June 1994, the plaintiffs offered to pay Rs. 32.00 lakhs and requested the defendant to execute power of attorney. The defendant avoided to receive the amount and to execute power of attorney. The plaintiffs persistently requested the defendant to perform his part of the contract while reiterating that they are ready and willing to pay the amount on executing power of attorney by the defendant. As the defendant refused to receive the amount and execute power of attorney, the plaintiffs got issued legal notice dated 22-7-1994 for which the defendant sent reply notice dated 11-8-1994 disputing the right on the ground that he forfeited the advance amount of Rs. 18.00 lakhs for violation of the agreement of sale. The plaintiffs are always ready and willing to perform their part of the contract. The allegation in the legal notice that the defendant is not the absolute owner of the suit schedule property and he was not in need of money establishes his mala fide attitude to avoid the performance of his part of the contract. It is further stated that the defendant has no right or authority either to forfeit the earnest money of Rs. 18.00 lakhs or to refuse to perform his part of the contract. The time is not the essence of the contract. As the defendant declined to perform his part of the contract and issued reply with false allegations, the plaintiffs are constrained to file the suit.

4. The defendant resisting the suit filed his written state