Time is an essence of the contract in specific performance cases, and plaintiffs must prove continuous readiness and willingness to perform their obligations.

JUDGMENT :

V. Gopala Krishna Rao, J.

1. The appeal is filed against the judgment and decree dated 21-7-2004 in O.S.No.207 of 1994 passed by the learned Principal Senior Civil Judge, Anantapur. The suit is filed for the relief of specific performance of an agreement of sale dated 07-11-1991 said to have been executed by the 1st defendant.

2. The case of the plaintiffs as narrated in the plaint, in brief, is as follows:

(i) It is pleaded that the 1st defendant is the owner of plaint schedule property, having purchased the same under a sale deed dated 26-12-1964, agreed to sell the same to the plaintiffs for a consideration of Rs.4,80,000/- and that on 07-11-1991, the 1st defendant executed an agreement of sale and that the plaintiffs have paid Rs.60,000/- towards advance and that though time for performance was stipulated in the agreement, time was never treated as essence of the contract and that the parties to the contract never intended to make time as one of the essential conditions of the agreement and that even otherwise, time is not the essence of the contract in respect of immovable property. The plaintiffs have always been ready and willing to perform their part of the contract i.e. to pay the balance sale consideration and to obtain a registered sale deed and that they were always pressing the 1st defendant to perform his obligations under the agreement. One of the essential conditions of the agreement is that the 1st defendant should vacate the premises by the date of execution of the sale deed and that he has also to discharge the loan subsisting on the suit property and that the 1st defendant did not perform his obligations till the date of suit and that he went on evading to perform his obligations.

(ii) It is further pleaded that while the plaintiffs were making oral demands for the performance of the contract, they received a notice dated 07-01-1992 from the 1st defendant stating that he is ready to perform his part of the contract and that the plaintiffs sent a suitable reply on 06-7-1992 and that the 1st defendant having failed to perform his obligations and having failed to get an Income Tax Clearance Certificate, cannot ask the plaintiffs to perform their part of the contract. The 1st defendant issued another notice dated 31-7-1992 with all false allegations and without disclosing whether he has obtained the Income Tax Clearance Certificate and without vacating the premises as agreed upon.

(iii) It is further pleaded that the 1st defendant cannot make time as essence of the contract unilaterally and without fulfilling his obligations. The plaintiffs sent a suitable reply on 04-8-1992. The question of the plaintiffs" cooperating in obtaining the Income Tax Clearance Certificate does not arise and that the 1st defendant never asked the plaintiffs to provide a draft sale deed as alleged in the notice dated 31-7-1992 and that the 1st defendant has not disputed the capacity of the plaintiffs in the notice dated 01-7-1992 and that the 1st defendant has not vacated the premises in his notice dated 18-8-1992 and that only false allegation is made for the purpose of taking undue advantage under the agreement. The 1st defendant's sons are also in occupation of a portion of the suit property and that the 1st defendant never vacated the premises. The plaintiffs have, therefore, prayed for a decree of specific performance of the said agreement of sale.

3. Brief averments in the written statement filed by the 1st defendant are as follows:

(i) It is pleaded that the property was sold by him as he was in need of money to perform the marriages of his daughters and that 8 months time was stipulated for the execution of sale deed and payment of balance sale consideration and that time was the essence of the contract as the money was urgently needed to perform the marriages of his daughters. The 1st defendant was always ready and willing to perform his part of contract and to deliver vacant possession by the appointed date and that t