The plaintiffs must prove their readiness and willingness to perform their part of the contract in order to be entitled to the relief of specific performance.

JUDGMENT :

This Appeal, under Section 96 of the Code of Civil Procedure [for short ‘the C.P.C.’], is filed by the Appellants/plaintiffs challenging the Decree and Judgment, dated 14.06.2004, in O.S. No.117 of 1995 passed by the learned Principal Senior Civil Judge, Anantapur [for short ‘the trial Court’]. The Respondents herein are the defendants in the said Suit.

2. The Plaintiffs filed the above said suit for relief of specific performance of an agreement of sale, dated 14.08.1991, executed by the 1st defendant and his mother in favour of the plaintiffs for Rs.8,90,000/- after receiving the balance of consideration in respect of suit schedule property and direct delivery of possession.

3. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court.

4. The brief averments of the plaint, in O.S. No.117 of 1995, are as under:

i) The suit was originally filed against the first defendant. On his death, during the pendency of the suit, his legal heirs are added as defendants 2 to 5.

ii) The first defendant and his mother were the absolute owners of the plaint schedule property and the mother of first defendant died and her share was devolved upon the first defendant as he being the sole legal heir of his mother. First defendant and his mother agreed to sell the plaint schedule property to the plaintiffs for Rs.8,90,000/- and that the plaintiffs paid Rs.1,00,000/- to the first defendant on 14.08.1991 towards advance and the first defendant and his mother executed an agreement of sale. As per the terms and conditions of the said agreement, the plaintiffs have to pay the balance of sale consideration within ten months from the date of agreement. Though time is stipulated in the agreement for the performance of contract, it was never treated as essence of the contract and the parties never intended to make time as one of the essential conditions of the agreement. Plaintiffs are always ready and willing to perform their part of contract and they paid Rs.90,000/- to first defendant and his mother on 22.12.1991 and that the said payment is endorsed on the back of the agreement. It is further stated that the first defendant should vacate the premises and handover vacant possession of the property and he is also liable to clear all the debts in respect of suit property before asking for the performance on the part of the plaintiffs. The plaintiffs are always ready and willing to take sale deed from the first defendant and his mother. But the first defendant and his mother without performing their obligation under the agreement, issued a notice dated 17.08.1992 stating that the agreement would stand cancelled if the plaintiffs do not take the sale deed by August, 1992. For that the plaintiffs sent a reply dated 31.08.1992. After receiving the reply, first defendant and his mother kept quiet and in the meanwhile the mother of first defendant died and first defendant did not take any steps for the performance of the agreement. The conduct of first defendant in keeping quiet for a long time clearly shows that time is not treated as essence of the contract. The first defendant again sent another notice dated 18.11.1994 with false allegations and the plaintiffs sent reply on 18.12.1994. The first defendant is evading the performance of contract on one pretext or other, hence the plaintiffs constrained to file the suit.

5. The first defendant filed a written statement by denying the averments mentioned in the plaint and further contended as under : -

i) The first defendant while admitting the execution of agreement of sale dated 14.08.1991 and also admitting the receipt of Rs.1,00,000/- on the date of agreement and another sum of Rs.90,000/- on 22.12.1991, pleaded that 10 months’ time was fixed for performance of contract and that they agreed to sell the property to enable them to perform the marriages of two daughters of first defendant and to use the remaining balance for the purpose of setting up of a business for