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IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
SANJAY KUMAR, J. UMA DEVI, JJ.
Sri Challapalli Venkateswara Rao and others - Appellants
Vs.
Sri Meka Gangadhara Rao - Respondent
A.S. NO. 318 OF 2008 AND A.S.M.P. NO. 2618 OF 2017 IN A.S. NO. 318 OF 2008
Decided On : 24-11-2017
Civil Procedure Code, 1908 – Section 96 – Appeal – Suit filed for specific performance of the agreement of sale – Decreed – Whether time was the essence of the contract – Readiness and willingness to perform - Plaintiff reiterated that he was ready and willing to pay the balance sale consideration and get the registered sale deed at his cost. After receiving telegram, the plaintiff got issued registered notice demanding that the defendants execute the registered sale deed in his favour - Held, The normal rule that time would not be of essence in a contract relating to immovable property has no inflexible application. Each case would have to turn upon its own individual facts. In this regard, the trial Court only went by the fact that the defendants accepted the belated payment made by the plaintiff under Exs.A2 and A3 endorsements, losing sight of the fact that by such payment the defendants did not enlarge the time for completion of the contract and it was once again reiterated under Ex.A3 endorsement in explicit terms. Time was therefore of the essence of contract - The trial Court seems to have misguided itself in this regard by casting the burden upon the defendants to show that the plaintiff was not capable of making the payment. As it was their case all along that the plaintiff failed to turn up and pay the balance sale consideration, the burden was fully upon the plaintiff to prove his readiness and willingness to pay the balance sale consideration - Plaintiff did not choose to include a prayer for refund of the sale consideration already paid by him. It is well settled that a prayer under Section 22 of the Act of 1963 can be permitted even at the appellate stage but it must be bona-fide. However, when the plaintiff did not seek such relief in his own wisdom right up to the stage of arguments and having filed an amendment petition at this late stage, he did not choose to include a prayer for such relief even therein, this Court is left with no alternative except to abide by the statutory mandate of the proviso to Section 22(2) of the Act of 1963 - plaintiff in the present case, with his ever-changing stands, therefore fall foul of the aforestated standard and cannot, in any event, claim the equitable relief of specific performance – Decree set aside – Appeal is allowed
Sanjay Kumar, J.
1. This first appeal under Section 96 CPC arises out of the judgment and decree dated 14.03.2008 of the learned Principal District Judge, West Godavari District at Eluru, in O.S.No.16 of 2007. The appellants are the defendants in the said suit which was filed for specific performance of the agreement of sale dated 26.07.2006 (Ex.A1); for execution of a registered sale deed in respect of the suit property upon receiving the balance sale consideration; and for delivery of possession. By the judgment under appeal, the trial Court decreed the suit directing the plaintiff to deposit the balance sale consideration to the credit of the suit with interest thereon at 12% per annum; permitting the defendants to receive the said amount and directing them to execute a registered sale deed in favour of the plaintiff at his expense within two months from the date of deposit; and also to deliver possession of the suit schedule property, failing which the plaintiff was granted liberty to get the regular sale deed through process of law; and if the plaintiff failed to deposit the balance sale consideration within the stipulated time, directing the defendants to refund the amount paid by the plaintiff to the tune of Rs.21,25,000/- with interest thereon at 12% per annum; and to pay a sum of Rs.1,88,638/- to the plaintiff towards costs.
2. By order dated 21.04.2008 passed in A.S.M.P.No.763 of 2008 filed in this appeal, this Court granted interim stay of execution of the judgment and decree under appeal subject to deposit of the suit costs by the appellants/defendants within a time frame. The respondent/plaintiff was permitted to withdraw the same without furnishing security.
3. Parties shall hereinafter be referred to as arrayed in the suit.
4. The suit schedule property in O.S.No.16 of 2007 is an extent of Ac.8.78 cents in R.S.Nos.93/2A and 93/2B of Kothapalli Village, Goppannapalem Panchayat, Denduluru Mandal, Eluru Sub-Registry, West Godavari District. It was the case of the plaintiff that this property belonged to the second and third defendants, the son and daughter of the first defendant, and they all jointly offered to sell it to him at the rate of Rs.6,00,000/- per acre. Ex.A1 suit agreement of sale was executed by them on 26.07.2006 incorporating the terms and conditions of the transaction. A sum of Rs.10,00,000/- was paid towards part of the sale consideration on that day out of the total sale consideration of Rs.52,68,000/-. The defendants acknowledged receipt of this amount. As per the suit agreement of sale, which was executed in the presence of Valasapalli Satyanarayana (P.W.2) and Veeranki Satyanarayana, a further sum of Rs.10,00,000/- out of the balance sale consideration of Rs.42,68,000/- was to be paid by him within one month from the date of the agreement and the balance Rs.32,68,000/- was to be paid within four months, i.e., by 25.11.2006. The plaintiff claimed that he paid Rs.5,00,000/- on 02.09.2006 to the first defendant and an endorsement to that effect (Ex.A2) was made on Ex.A1 agreement of sale. He paid a further sum of Rs.6,25,000/- to the defendants on 10.11.2006 and an endorsement to that effect (Ex.A3) was made by them on Ex.A1 agreement of sale. The plaintiff claimed that though he was always ready and willing to pay the balance sale consideration and get the registered sale deed at his cost, the defendants postponed on one pretext or the other representing that the original title deeds were not available. While so, to his surprise, the plaintiff received Ex.A4 telegram dated 25.11.2006 through Sri Ch.V.Ramana Rao, the defendants Advocate, with false allegations to the effect that the defendants waited at the Sub-Registrars Office (SRO) at Eluru on 25.11.2006 till 4.30 PM to perform their part of the contract but the plaintiff failed to pay the sale consideration and perform his part of the contract and that the defendants terminated Ex.A1 agreement of sale. The plaintiff asserted that the all
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