In the High Court of Judicature, Andhra Pradesh at Hyderabad
V.V.S. RAO, J.
A.K. Lakshmipathy (died) by LR and others – Appellant
Versus
Rai Saheb Pannalal Hiralal Lahoti Charitable Trust, Hyderabad and others - Respondents
CCCA No. 88 of 1993 and AS No. 673 of 1995
Decided on : 23-02-2005

Headnote:

Contract Act, 1872 – Section 55 - Specific Relief Act,1963 - Sections 11(2),13,13(1)(c) - Indian Trusts Act, 1882 - Sections 46,47and 48 - Urban Land (Ceiling and Regulation) Act, 1976 - Section 19(1)(iv) - Transfer of Property Act -Sections 54,55,55(1),55(2),55(1)(a) - Sale deed - Contract of sale - Suit for Schedule property - Refund of advance amount - Property bearing Municipal comprising a double storied building with two garages one open garage one servants room well with electric motor and pump standing in an area admeasuring yards at Hyderabad originally belonged to one by a Will - He made certain bequeath and appointed second defendant and one as joint executors of Will - After death of her daughter third defendant and adopted son stepped into shoes of - In his Will desired that of estate property to be utilized as a fund for hospitals and educational institutions in moieties as executors deemed fit - Pursuant to such wish by a Deed of Trust second defendant created a trust with corpus earmarked in Will of late duly appointing defendants as additional trustees apart from second defendant as first trustee - Trust known as Charitable Trust first defendant herein owned properties in Hyderabad and in Maharashtra - Office of first defendant Trust was at Calcutta - Trust represented by its trustee second defendant executed agreement of sale in favour of first plaintiff agreeing to sell suit schedule property admeasuring with constructions thereon - As against agreed consideration of paid a sum of as advance and further agreed to pay balance of on or before and obtain sale deed thereafter - Whether plaintiffs have not committed breach of contract of sale? Whether second defendant acting on behalf of first defendant was not justified in terminating contract and forfeiting advance amount of-? - Whether there is necessity for impleading defendants as parties to suit in their individual capacity and whether they are not proper or necessary parties? Whether time was essence of contract regarding agreement between parties? Whether any sanction from Endowment Department of A.P. or other authorities was required for complion sale? Who is amongst parties who is person to obtain permission or exemption from competent authority and Urban Land Ceiling and Regulation Act Hyderabad and from Income Tax Officer Calcutta? Whether defendant dealt with plaintiff at all or whether he dealt with only first plaintiff? Whether plaintiffs have raised imaginary demand which were not made clear to defendant at any time and whether defendants are not bound to such demands of plaintiffs? Whether demands made in telegram notice are all unreasonable and not required and not contemplated as per terms and conditions of agreement? Who are parties that actually committed breach of contract? Whether plaintiffs having asked for refund in alternative in letter of their advocate cannot now seek relief for specific performance on agreement? Whether defendants should furnish a bank guarantee in a sum of ? Whether defendant is justified in forfeiting advanced sum of? Whether plaintiffs are entitled to any specific performance as prayed for or to alternative relief? Whether defendants are entitled for a decree for and also a decree for from April till disposal of suit? Whether plaintiffs are entitled to specific performance prayed for and for delivery of vacant possession of schedule property? Whether all trustees are bound and should be directed to join in executing sale deed and to get same registered? Whether agreement as not validly or illegally rescinded by defendants and was never repudiated by plaintiffs? To what relief? Whether objections raised by plaintiffs and clarifications sought by them are reasonable failing under Section 55(1)(b) and (c)? whether time is essence of contract and whether plaintiff was ready and willing to perform contract - Held, Courts have held that a defect of title is one which exposes purchaser to adverse claims to land and have pointed out restrictive covenants encumbrances property liable to be acquired existence of partition decree allotting a portion to co-sharer title being voidable at option of third party and absence of concurrence of persons whose consent is necessary to validate transfer as defects of title - That plaintiffs were justified in issuing various notices seeking such clarifications - He also contends that even before last date for payment of balance of sale consideration plaintiffs have sent a cheque drawn on Syndicate Bank for with Managers endorsement that cheque is “good for payment” and therefore they have not committed breach of contract - It is clear that in case of sale of immovable property there is no presumption as to time being essence of contract - Even if it is not of essence of contract Court may infer that it is to be performed in a reasonable time if conditions are from express terms of contract from nature of property and from surrounding circumstances for example object of making contract - When plaintiff who seeks a specific performance of agreement has to prove readiness and willingness to perform his part of contract in relation to a real agreement between parties and not agreement or conditions which such plaintiff stipulate or assumes. It was held that when insistence on warranty of title was not agreed in contract plaintiff cannot subsequently insist upon such warranty - It was observed as under - Appeal Dismissed