The court emphasized that specific performance is discretionary and requires the plaintiff to prove continuous readiness and willingness to perform the contract, which was not established in this case.

JUDGMENT :

Venuthurumalli Gopala Krishna Rao, J.

This Appeal, under Section 96 of the Code of Civil Procedure [for short „the C.P.C.‟], is filed by the Appellant challenging the decree and judgment, dated 09.06.2003 in O.S.No.41 of 1999 passed by the Additional Senior Civil Judge, Eluru [for short „the trial Court‟].

2. The appellant herein is the plaintiff and 1^st respondent herein is the defendant in O.S.No.41 of 1999. It is to be noted here during the pendency of the appeal, the respondent Nos.2 and 3 are added as parties in the appeal and the 1^st respondent died and her legal representatives are brought on record as respondent Nos.4 to 7.

3. The appellant/plaintiff filed the suit for specific performance of agreement of sale, dated 15.02.1996 and for delivery of possession or in the alternative, for return of the sale consideration with interest and for costs.

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

5. The brief averments of the plaint in O.S.No.41 of 1999 are as under:

The defendant is the absolute owner of the plaint schedule site for an extent of 700 sq. yards in Vatluru, Pedapadu Mandal, West Godavari District. The defendant got the property by succession as sole legal heir of her father late Vegunta Anjaneyulu. She intended to sell the site and after some negotiations, bargain was settled down between the plaintiff and the defendant. She agreed to sell the plaint schedule site to the plaintiff at Rs.445/- per sq. yard. The defendant received a sum of Rs.50,000/- as advance on 15.02.1996 and executed a sale agreement on 15.02.1996 in favour of the plaintiff duly acknowledged the receipt of Rs.50,000/-. The defendant should get the site measured on or before 20.04.1996 and the plaintiff should pay the value of the site for measured extent at Rs.445/- per sq. yard and the defendant should be bound to execute a registered sale deed for the site in favour of the plaintiff and the defendant agreed to deliver possession of the property at the time of registration. If the defendant failed to measure the property and the plaintiff failed to pay the remaining sale consideration, the remaining sale consideration shall be paid with interest at 24% per annum with yearly compound, but the defendant is ready and willing to perform her part of contract. Time is not essence of the contract. The plaintiff is always been ready and willing to perform his part of contract to pay the balance sale consideration to the defendant and to obtain the sale deed in his favour at his expenses. The plaintiff paid a further sum of Rs.90,000/- to the defendant on 22.10.1997 to her son-in-law Chilaka Rambabu who endorsed the said payment of Rs.90,000/- out of the said sale consideration on the back of the second sheet of stamp of the sale agreement and duly signed acknowledging the said payments. Thus, the plaintiff received an amount of Rs.1,40,000/- towards sale consideration under the said agreement. The plaintiff got issued a legal notice on 15.04.1999 through his counsel to the defendant demanding the execution of the registered sale deed on receipt of balance sale consideration and to perform her part of contract. The defendant having received the said notice simply kept quiet and failed to execute a regular sale deed and failed to give any reply so far. If for any reason this Court is not inclined to grant the main relief of specific performance of agreement of sale, dated 15.02.1996, then the plaintiff is entitled to refund the advance sale consideration of Rs.1,40,000/- with inte