Important Point – Mere stipulation that promisor shall perform a particular term of contract within a particular time per se will not make time as essence of contract.

1. Aggrieved by the Judgment and Decree dated 01.10.2007 in O.S.No.104 of 2003 passed by the learned XII Additional Chief Judge (FTC), City Civil Court, at Hyderabad, granting specific performance decree in favour plaintiff in respect of suit schedule property i.e, undivided half share in premises bearing Municipal No.1-5-6/A (new), 1-5-6(old) admeasuring 516 sq.yards out of 1032 sq.yards situated at Bakaram, Musheerabad, Hyderabad, the defendants preferred the instant appeal.

2. The first defendant is the father and 2nd defendant is the son of 1st defendant. The Plaintiff’s case in brief is that the defendants 1 and 2 along with other sharers—Sri Mohd. Abdul Mannan and his son—Sri Mohd. Meraj had entered into an agreement of sale of the premises bearing Municipal No.1-5-6/A(new), 1-5-6(old) admeasuring 1032 sq.yards situated at Bakaram, Musheerabad, Hyderabad, with the plaintiff on 25.02.2000 for Rs.49,53,600/- at the rate of Rs.4800/- per sq.yard and on the same day, the plaintiff paid Rs.5,00,000/- i.e, Rs.2,50,000/- to defendants 1 and 2 and Rs.2,50,000/- to Sri M.A.Mannan and to his son—Sri Mohd. Meraj. Plaintiff was always ready and willing to perform his part of contract. It was settled mutually at the time of agreement that defendants and other sharers would get the tenant evicted and would deliver vacant possession. Since the amount was more than Rs.20,00,000/-, as per the provisions of Income Tax Act, the defendants have to get clearance from I.T Department and defendants undertook to obtain the clearance certificate and intimate the same to plaintiff to get the sale deed registered. Plaintiff has been reminding and defendants and other sharers to receive the balance sale amount and to execute the sale deed. The other sharers Sri M.A.Mannan and Sri M.Meraj have executed sale deed by receiving their share amount on 29.11.2001 vide document No.3469/2001. Thereafter, plaintiff again reminded defendants to execute the sale deed and also got issued legal notice on 01.02.2003 etc. Hence, the suit for specific performance of contract of agreement.

3. The defendants filed common written statement admitting that they are the lawful owners and half shares and entered into an agreement of sale and also received an amount of Rs.2,50,000/-. They contended that plaintiff’s company agreed to pay balance sale consideration within two months but it was never ready with it. There is no mention in the agreement about the eviction of the tenant. Plaintiff never reminded the defendants. Plaintiff did not come forward within the stipulated time. The defendants informed to plaintiff that sale agreement was cancelled and the same was accepted by plaintiff. Defendants had no knowledge about the sale deed dt.21.11.2001 executed by other shareholders. The suit is filed at the end of three years period hence barred by limitation. Suit is not maintainable and there is no cause of action.

4. Basing on the above pleadings, the trial Court framed following issues:

1) Whether the suit is barred by limitation?

2) Whether the plaintiff is entitled for specific performance of the contract as prayed for?

3) To what relief?

The following additional issues were framed:

1) Whether there is delay in filing the suit, if so whether plaintiff is entitled for relief of specific performance?

2) Whether Ex.A.1 is admissible in evidence as per the Stamp Act and Registration Act?

3) Whether time is essence of contract?

5. During trial, PW.1 was examined and Exs.A.1 to A.9 were marked on behalf of plaintiff. DW.1 was examined and Exs.B.1 to B.4 were marked on behalf of defendants.

6. The trial Court after appreciation of oral and documentary evidence, decreed the suit with costs for relief of specific performance of suit agreement of sale subject to the condition that plaintiff shall deposit the balance of sale consideration into court within two months from the date of judgment and thereafter, defendants shall execute regular sale deed within two months, failing which