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ANDHRA PRADESH HIGH COURT
T. Mallikarjuna Rao, J.
Dudala Sarojinamma [died] – Petitioner
versus
Dudala Rama Prasad and Anr. – Respondents
Appeal Suit No.8 of 2011
Decided on 4.7.2023
(A) Specific Relief Act, 1963 – Section 16 (c) – Specific performance - Agreement of sale – Time essence of contract – Words used in agreement do not show intention of parties to make time essence of contract with reference to payment –Terms of agreement do not show in express terms that time is essence of contract. [Para 24]
(B) Specific Relief Act, 1963 – Section 16 (c) – Specific performance - Agreement of sale – Alternative relief – Alternative plea of refund of earnest amount and damage could not be bar to claiming decree for specific Performance of contract – Simply because, plaintiff has claimed alternative relief, it cannot be held that plaintiff is not entitled to primary relief of specific performance – Grant of alternative relief will arise if plaintiff’s claim for specific Performance is refused – When plaintiff asks for alternative relief, there is no legal presumption or assumption that he gives up primary relief of specific Performance of contract. [Paras 47, 48]
(C) Specific Relief Act, 1963 – Section 16 (c), 20 – Specific performance - Agreement of sale – Specific performance should be granted and denied only when equitable considerations point to its refusal and circumstances show that damages would constitute adequate relief – Section 20(2) of Specific Relief Act contains cases in which Court may properly exercise discretion not to decree specific Performance – Case does not fall under any of these cases. [Paras 51, 52, 53]
(D) Second appeal – Power of Court – When trial Court exercises its discretion in one way or another after appreciating entire evidence and materials on record, appellate Court should not interfere unless it is established that discretion has been exercised perversely, arbitrarily or against judicial principles – Appellate Court should also not exercise its discretion against grant of specific performance on extraneous considerations or sympathetic considerations. [Para 53]
(E) Specific Relief Act, 1963 – Section 16 (c) – Specific performance - Agreement of sale – Readiness and willingness – As contemplated under section 20 of Specific Relief Act, that party is not entitled to get decree for specific performance merely because it is lawful to do so – Once agreement to sell is legal and validly proved and further requirements for getting such decree are established, Court has to exercise its discretion to grant relief for specific performance – Mere non-deposit of balance sale consideration amount, cannot be ground to hold that plaintiff is not ready and willing to perform her part of contract – It is not appellants/defendants case that despite direction of trial Court or this Court, respondent/plaintiff failed to deposit amount – There was due compliance of section 16(c) r/w explanation of Specific Relief Act, on part of plaintiff – No illegality or arbitrariness in impugned Judgment – Judge however ought to have granted decree for specific performance, directing plaintiff to pay balance sale consideration amount with interest thereon at 12% per annum. [Paras 46, 53, 54, 57]
Result: Appeal partly allowed.
JUDGMENT
The Appeal, under Section 96 of the Code of the Civil Procedure, is filed by the appellants/defendants 1 to 3 challenging the decree and Judgment dated 14.12.2010 in O.S.No.67 of 2007 passed by the learned Principal District Judge, Nellore (for short, ‘the trial court’). The 1st respondent is the plaintiff, who filed the suit in O.S.No.67 of 2007 seeking specific performance of agreement of sale dated 29.12.2006, registered on 30.12.2006.
2. The parties will hereinafter be referred to as arrayed before the trial Court.
3. The brief averments of the plaint are as under:—
(a) The plaint schedule property was originally owned by Dudala Venkata Subbaiah, who was the 1st defendant’s husband and father of defendants 2 and 3. He died intestate. Defendants 1 to 3 inherited his estate and became absolute owners. They agreed to sell the schedule property to the plaintiff on 29.12.2006 for Rs.21,05,500/-. In pursuance of the same, an agreement was entered between the plaintiff and the defendants 1 to 3 by reducing the terms into writing on that day, where the plaintiff paid an advance of Rs.2,00,000/-. It was agreed that the remaining sale consideration of Rs.19,05,500/- would be paid on or before 01.06.2007, and the defendants 1 to 3 would execute the registered sale deed in favour of the plaintiff upon receiving the balance amount.
(b) All the aforementioned conditions were included in the said sale agreement and was registered as a document No.3013/2006 at the Sub Registrar’s Office, Buchireddipalem, on 30.12.2006. The defendants 1 to 3 utilized the advance payment and failed to fulfill their obligations under the agreement. They failed to receive the balance of sale consideration till 01.06.2007 by postponing the same on some pretext. The plaintiff waited till 04.06.2007, hoping that defendants 1 to 3 would positively react to her persuasions. Still, there was no response from them. Subsequently the plaintiff got issued a legal notice calling upon them to fulfill their contractual obligations by receiving the balance payment.
(c) Defendants 1 to 3 received a notice. They got issued notice on 06.06.2007. The plaintiff waited for a response from the defendants until 15.06.2007 as she had set the dead line for receiving the balance payment. As the defendants 1 to 3 did not respond, the plaintiff filed the suit for specific performance of the agreement of sale.
4. A detailed written statement filed on behalf of the 2nd defendant which is adopted by defendants 1 and 3, the contents of which in brief as follows:—
(a) The 2nd defendant admitted to agreeing to sell the plaint schedule property for Rs.21,05,500/- and executing the agreement of sale on 29.12.2006 after receiving an advance payment of Rs.2,00,000/-. They sold the plaint schedule property in order to purchase the site in the Nampally area of Hyderabad, by paying an advance amount of Rs.4,00,000/- to a person named Dhanaraj. Therefore, time was the essence of the contract.
(b) The plaintiff despite agreeing to pay the balance of sale consideration on or before 01.06.2007, failed to do so even after repeated demands from the defendants. The defendants got issued a notice on 06.06.2007 stating that the agreement of sale dated 29.12.2006 was cancelled, and the advance amount was forfeited. The plaintiff being aware of this notice, subsequently issued another notice with ante-date as 04.06.2007. The plaintiff had no capacity to purchase the same.
5. Based on the above pleadings, the trial Court framed the following issues:—
(1) Whether the plaintiff is entitled to specific performance of the agreement of sale, dated 29.12.2006?
(2) To what relief?
6. During the trial, on behalf of the plaintiff, P.Ws.1 and 2 were examined, and Exs.A1 to A.11 were marked. On behalf of the defendants, D.W.1 was examined, and no documents were marked.
7. After completion of the trial and hearing the arguments of both sides, the trial Court decreed the suit with costs by granting specific perfo
![Dudala Sarojinamma [died] VS Dudala Rama Prasad](https://cdn.supremetoday.ai/static/img/news-place-holder.png)
(1) Specific performance of agreement of sale –Alternative plea of refund of earnest amount and damage could not be bar to claiming decree for specific Performance of contract.(2) Specific performanc....
(1) Specific performance – Ordinary rule is that specific performance should be granted – It ought to be denied only when equitable considerations point to its refusal and circumstances show that dam....
The plaintiff was always ready and willing to perform her part of the contract, and the defendants failed to prove that the plaintiff lacked the financial capacity to pay the balance sale considerati....
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.
The main legal point established in the judgment is that the Plaintiff consistently demonstrated readiness and willingness to fulfill his contractual obligations, while the Defendants evaded their re....
Time is of the essence of a contract if the parties have agreed that it is or if the circumstances of the case show that it is.
The plaintiff's failure to prove readiness and willingness to perform his part of the contract within the stipulated time precluded him from obtaining the relief of specific performance.
Time is not automatically the essence of a contract unless expressly stated; the plaintiff's readiness and willingness to perform must be established.
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