THE HONOURABLE SRI JUSTICE P.SAM KOSHY AND THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO Appeal Suit No.208 of 2013

JUDGMENT :

(per the Hon’ble Sri Justice P.SAM KOSHY The instant appeal is filed by the appellant / plaintiff under Section 96 of the Civil Procedure Code, 1908 assailing the Judgment and Decree dated 21.11.2012 in O.S.No.471 of 2006 passed by the III Additional District and Sessions Judge, (Fast Track Court), Ranga Reddy District, at L.B. Nagar (for short, ‘the impugned Judgment’)

2. Heard Mr.B.Udaya Bhasker Rao (Party-in-Person) and Mr. Janardhan Reddy Kotha, learned counsel for the respondents /

defendants.

3. Vide the impugned judgment, the Trial Court dismissed the above suit, viz., O.S.No.471 of 2008, which was filed by the appellant / plaintiff under Section 26 read with Order VII Rules 1 and 2 of Civil Procedure Code, 1908, seeking for specific performance of an agreement of sale dated 10.07.2005 against the respondents / defendants in respect of the suit schedule property situated in Survey Nos.197, 198 and 199 of Yadarpalli Village total admeasuring Acs.17.18 gts.

4. The brief facts of the care are that, the respondent / defendant Nos.1 and 2 have offered to sell their lands to the appellant / plaintiff herein under a registered Agreement of Sale dated 10.07.2005 for a total sale consideration of Rs.78,61,225/-, i.e., Rs.4,50,500/- per acre. The appellant / plaintiff has paid a sum of Rs.1 lakh as advance to the respondents / defendants, and the balance sale consideration was to be paid within twelve (12) months so as to enable the respondents / defendants to register the sale deed in favour of the appellant / plaintiff. In the meantime, the appellant / defendant had also paid a sum of Rs.18,02,000/- to respondent / defendant No.3, and also a sum of Rs.10 lakhs more to the respondent / defendant No.1. However, the respondents / defendants failed to register the land in favour of the appellant / plaintiff.

5. Learned counsel for the appellant / plaintiff contended that the appellant / plaintiff was always ready and willing to perform its part of the contract, but the respondents / defendants postponed the same on some pretext or the other. Even on the issuance of a legal notice also the respondents / defendants did not show keen interest in registered the sale deed which led to filing of the above suit for specific performance of the Agreement of Sale dated 10.07.2005 seeking for relief of specific performance of the said agreement.

6. On the contrary, learned counsel for the respondents contended that because the respondent / defendant No.1 had to perform the marriage of his daughter which was fixed on 21.05.2006, and as the appellant / plaintiff had not come forward to pay the balance sale consideration, he had borrowed money from other person and performed the marriage of his daughter. He further submitted that had appellant / plaintiff discharged his part of the contract and paid the balance amount, the respondent / defendant No.1 would have performed the marriage of his daughter comfortably. But the appellant / plaintiff failed to do that which led to the oral cancellation of the agreement of sale.

7. In support of his contentions, learned counsel for the appellant / plaintiff relied on the following decision of the Hon’ble Supreme Court in the case of P. Daivasigamani vs. S. Sambandan1, wherein a learned Division Bench held as under, viz., “… … It is sufficient for the respondents to establish that they had the capacity to pay the sale consideration. It is not necessary that they should always carry the money with them from the date of the suit till the date of the decree. … …”

8. Having gone through the pleadings and averments made by the learned counsel on both sides, some of the admitted fact that is reflected is that so far as the payment made by the appellant /

1 2023 (1) A.L.D. 49 (SC)

plaintiff to the defendants is concerned, as against the money received by the respondents / defendants they have