Time is of the essence in contracts for sale of immovable property; failure to act within stipulated time undermines claims for specific performance.

JUDGMENT :

Venuthurumalli Gopala Krishna Rao, J.

The appeal is filed against the judgment and decree dated 03-3-2005 in O.S.No.131 of 1997 passed by the learned Senior Civil Judge, Kadapa, Kadapa District. The suit is filed by the General Power of Attorney Holder of the plaintiff against the defendants 1 to 5 for specific performance of an agreement of sale dated 30-5-1994 in respect of the plaint schedule property and to direct the defendants 1 and 5 to receive the balance sale consideration and execute a sale deed in favour of the plaintiff.

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

(a) It is pleaded that the 1^st defendant is the owner of the schedule property house bearing No.19/22 in Kadapa town and he offered it for sale to the plaintiff and the bargain was settled at Rs.7,00,000/- as sale consideration and an agreement dated 30-5-1994 was executed by the 1^st defendant in favour of the plaintiff after receipt of advance of Rs.1,50,000/-. The plaintiff intended to go to Kuwait and therefore, he authorized one Sardar Khan to act as his agent and told the defendants 1 and 2 that his agent would pay the balance sale consideration of Rs.5,50,000/- by 31-10-1994 on his behalf and the 1^st defendant should execute a sale deed in favour of Sardar Khan and the defendants 1 and 2 agreed for the same and thereafter, the plaintiff went to Kuwait.

(b) It is further pleaded that the 1^st defendant undertook to discharge the debt due to the State Bank of India and clear of all taxes to the Municipality and Electricity Board by the date of execution of the deed. Again on 19-9-2004, the 1^st defendant wanted Sardar Khan to adjust Rs.40,000/- and Sardar Khan sent the said amount of Rs.40,000/- to the 1^st defendant through the 3^rd defendant and the same was received by the 2^nd defendant and the 2^nd defendant told that he would acknowledge Rs.40,000/- later. The 1^st defendant in order to defeat the right of the plaintiff executed a fraudulent and nominal gift deed dated 31-5-1997 in favour of the 5^th defendant, who is no other than his own daughter. Hence, the suit.

3. Brief averments in the written statement filed by the 1^st defendant, which was adopted by the 2^nd defendant by filing a memo, are as follows:

(a) The 1^st defendant admitted about the agreement of sale dated 30-5-1994 for Rs.7,00,000/- and also receipt of Rs.1,50,000/- as an advance. It is contended that time is the essence of the contract. The plaintiff has to pay the entire sale amount to the 1^st defendant on or before 31-10-1994 and get a regular registered sale deed. There was agreement to the effect that tenancy advance of Rs.75,000/- will be adjusted towards the plaintiff and the lease of the 4^th defendant should be continued. The entire building was offered as security to obtain loan from the bank. The schedule property is a small portion of offered building. At the time when the bank invoked the mortgage, the 1^st defendant undertook to discharge the same and as such, mortgage clearance is not a condition precedent to registration.

(b) It is further contended that an amount of Rs.1,00,000/- was paid to the 1^st defendant towards part payment of the suit agreement and an endorsement was made to that effect on 16-9-1994. The plaintiff has no capacity to purchase the schedule property and he entered into the suit agreement with a thought that the suit schedule property fetches more value in future and somebody purchase it from him and thereby he will be benefitted and the plaintiff subsequently failed to perform his part of contract due to latches on his part. The General Power of Attorney executed by the plaintiff is not valid and the suit is barred by limitation and there is no cause of action to file the suit against the defendants 2 to 4 and they are unnecessary parties to the suit and the suit is bad for mis-joinder of necessary parties and suffered from non-joinder of necessary parties. He prayed to dismiss the suit with costs.

4. The 3^rd def