Time is of the essence in specific performance agreements; the plaintiff must prove readiness and willingness to execute the contract, which was not established in this case.

JUDGMENT :

T. G. SHIVASHANKARE GOWDA, J.

In this appeal, the plaintiff has challenged the judgment dated 11.06.2018 passed in O.S.No.95/2014 by the Senior Civil Judge at Koppal (hereinafter referred to as ‘the Trial Court’, for short), in refusing to grant the relief of specific performance and directing the defendant to refund an advance amount with interest at 18% p.a.

2. The appellant was the plaintiff and respondent was the defendant before the Trial Court. For the sake of convenience, the rank of the parties will be referred to as per their status before the Trial Court.

3. The brief facts of the case are, the land in R.S.No.14/1 measuring 01 acre, 14/3 measuring 05 acres and 14/4 measuring 05 acres, situated in Sultanpur village, Taluk and District Koppal, is belonging to the defendant. The defendant approached the plaintiff for alienation of the said properties for his legal necessity on 23.05.2014, agreeing to sell the said lands for a consideration of Rs.16,50,000/- and received part consideration of Rs.10,00,000/-. It was further agreed by the defendant that balance consideration of Rs.6,50,000/- will be received at the time of registration of the sale deed within three months. The defendant executed a registered agreement of sale on 23.05.2014 receiving the part consideration.

3(a) In the first week of August 2014, plaintiff called upon the defendant to receive balance consideration of Rs.6,50,000/- and to execute the sale deed. The defendant sought for more time to execute the sale deed as it was not convenient for him to come to Koppal from Hyderabad where he resides.

3(b) In spite of repeated requests, defendant did not come forward to execute the sale deed by receiving balance consideration. Hence, on 17.09.2014, a notice was issued calling upon the defendant to execute the sale deed and reply was received on 08.10.2004 contending that the sale consideration was Rs.29,60,000/- and asking the plaintiff to pay Rs.13,10,000/- in addition to Rs.6,50,000/- for execution of the sale deed. As the defendant failed to execute the sale deed, the plaintiff has filed the instant suit.

4. The defendant has opposed the suit by filing the written statement contending inter alia that, he is the owner of the suit schedule properties, he has agreed to sell the suit properties for a consideration of Rs.29,60,000/-, wherein the plaintiff obtained the registered agreement of sale for a consideration of Rs.16,50,000/- only and outside the agreement, he has issued two cheques, one for Rs.10,00,000/- and one cheque for Rs.3,10,000/- and instructed the defendant to present the cheque during August, 2014 and further he will pay the balance consideration of Rs.6,50,000/- within three months and get the sale deed registered on or before 23.08.2014.

4(a) It was agreed that, time was the essence of contract and the cheques issued by the plaintiff came to be dishonoured and consideration was not paid as agreed and dishonour of cheques was intimated to the plaintiff through notice dated 09.09.2014. In stead of performing his part of contract by paying the balance consideration including the cheque dishonoured amount, the plaintiff issued legal notice on 17.09.2014 and the same was replied by defendant on 08.10.2014.

4(b) The plaintiff was informed about cancellation of the agreement dated 23.05.2014 and that Rs.10,00,000/- advance will be returned on execution of the Cancellation Deed before the Sub-Registrar office, Koppal. In stead of complying the same, the plaintiff has ventured into filing the suit and sought for its dismissal.

5. Based on the pleadings, the Trial Court has framed following issues:

i. Whether the plaintiff proves that he is/was ready and willing to perform his part of the contract?

ii. Whether the defendant proves that the plaintiff has failed to perform his part of the contract under the agreement of sale?

iii. Whether the plaintiff is entitled for the relief of specific performance of the contract?

iv. Whether plaintiff is entitled f