@JUDGMENTTAG-ORDER
P.S. Narayana, J.@mdashThe plaintiff in O.S.No. 102 of 1983 on the file of Subordinate Judge, Ongole had preferred the present appeal being aggrieved by the decree passed in her favour but imposing a condition of payment of interest at the rate of 24% per annum from 21-8-1980.
2. The facts in brief are that the appellant/plaintiff filed O.S.No. 102 of 1983 on the file of Subordinate Judge, Ongole for specific performance of an agreement of sale dated 7-6-1980 executed by the respondent/ defendant agreeing to sell the plaint schedule property at the rate of Rs. 650/- per gadi. The recitals in the said agreement of sale were that Rs.1,000/- was paid on the same day, the balance of sale consideration was payable at the time of execution of the registered sale deed, and if the balance of sale consideration is not paid within one month, interest at the rate of 24% is payable on the balance of sale consideration till execution of the sale deed and amount of Rs.10,000/- was paid on 21-8-1980 relating to which an endorsement was made. It is the further case of the appellant/plaintiff that plaintiff along with her husband had demanded the respondent-defendant to receive the balance of sale consideration and execute a registered sale deed. But, he evaded the same and hence there was exchange of notices between the parties. The trial court had recorded the evidence of P.W.I, the plaintiff and the husband of the plaintiff as P.W.2 and the evidence of the defendant as D.W.I and Exs.A-1 to A-5 were marked. As can be seen from the findings recorded by the trial Court, mainly basing on the admissions made by the respondent/ defendant, a conditional decree was passed directing the payment of balance amount of Rs. 15,000/- with interest at the rate of 24% per annum from 21-8-1980 onwards till the date of payment to the respondent-defendant.
3. In view of the short question involved in the present appeal, it is not necessary to go into the details of evidence which had been recorded by the trial Court. It is suffice to state that a conditional decree was passed and the same was not complied with.
4. Sri Srinivas, the learned counsel representing the appellant-plaintiff had drawn my attention to Ex.A-5 and has submitted that Rs.15,000/- was deposited in Indian Overseas Bank which is evidenced by the pass book. The learned counsel further contended that this is a case where the appellant-plaintiff was successful in getting the decree for specific performance, but, however, she had preferred the appeal only to the limited extent being aggrieved by imposition of a condition relating to the payment of interest at the rate of 24%. The learned counsel also further contended that in view of Section 148 of the CPC read with Section 28 of the Specific Relief Act, 1963, this court has ample power to extend the time by giving an opportunity to the appellant-plaintiff to make deposit of rest of the amount within a particular stipulated time and granting such relief in favour of the appellant-plaintiff in the facts and circumstances of the case will be definitely just and equitable. The learned counsel also had placed reliance on a decision in
5. Sri Anjaneyulu, learned counsel representing the respondent-defendant had taken me through the judgment of the trial court in general and also the findings recorded at paragraphs 30 to 34 of the judgment in parties. The learned counsel further commented that while exercising discretion relating to extension of time, the court may have to look into the conduct of the parties. The learned counsel further pointed out that the findings recorded by the trial court clearly go to show that the appellant-plaintiff has not rightly performed her part of the contract but, however, in view of the defence taken by the respondent-defendant and also the concession made by him to the effect that even by the date of delivering judgment, he was prepared to execute a sale deed subject to the appellant-plaintiff paying the balance of amount with interest at the stipulated rate, the condition was imposed in the judgment and decree of the lower court. The learned counsel also had pointed out the relevant discussion at the end of paragraph 33 of the judgment of the trial Court in this regard. Further elaborating his submissions, it is also pointed out that the appellant-plaintiff had never shown due diligence and just for the purpose of procrastination of the litigation, an appeal was presented and the said appeal also was not further prosecuted and this conduct on the part of the appellant-plaintiff will definitely disentitle her to seek any extension of time on any ground of equity whatsoever.
6. Heard both the counsel at length and also perused the material available on record. As can be seen from the respective contentions of the parties, the only question that is to be answered in the present appeal is as specified hereunder:
Whether in the facts and circumstances of the case, the appellant-plaintiff is entitled to the extension of time for the purpose of making deposit or not.
7. The facts in brief had been narrated above and the same need not be repeated again. It is not in dispute that a decree for specific performance was made by the trial court on the condition of the plaintiff paying the balance of Rs.15,000/- with interest at the rate of 24% per annum from 21-8-1980 onwards till the date of payment to the defendant and no doubt, there is a further stipulation that this payment should be made by 31-5-1985 by giving a written notice of her being ready with the amount and paying the same get the sale deed registered within that period, otherwise the suit shall be deemed to have been dismissed. It was also further specified by the trial court that the plaintiff shall be liable to pay the costs of the suit to the defendant in either case whether the suit is ultimately decreed or dismissed. It appears from record that inasmuch as a conditional decree was passed, the decree was not drafted and a letters patent appeal was preferred on the strength of the judgment only. It also appears that ultimately the letters patent appeal was disposed of with a direction to the lower court to supply a certified copy of the decree to the appellant/plaintiff. Thereafter the present appeal was numbered. Whatever may be the reasons, the fact remains that none of the conditions specified in the conditional decree had been complied with by the appellant-plaintiff and no doubt, an attempt is made to show that the appellant-plaintiff has been ready and willing to make the payment as evidenced by the Ex.A-5. Ex.A-5 at the best may show that at a particular point of time, an amount of Rs.15,000/- was kept in bank by the appellant-plaintiff. That cannot be said to be a valid deposit in accordance with law. Be that as it may, it is also pertinent to note that the findings recorded by the trial court clearly go to show that the decree was made more on the basis of the concession made by the respondent-defendant. In fact, a finding had been recorded that there was no default at all on the part of the respondent-defendant and despite the same, the conditional decree was granted. A party who had obtained a decree for specific performance especially in view of the admissions and the concessions made by the respondent-defendant, cannot complain of the imposition of the conditions which in fact had been imposed by the trial court only in conformity with the recitals made in the agreement of sale marked as Ex.A-1. Hence, in such circumstances, I am of the considered opinion that the appellant-plaintiff had not made out the case for extension of time any further. No doubt, in Sujatha''s case (supra), it was held that the court has power u/s 148 CPC to enlarge the time for payment of balance of sale consideration after the expiry of the time stipulated under the decree. While granting extension of time, in the case of relief for specific performance, it being a relief based on equity, the facts and circumstances have to be taken into consideration.
8. In the light of the above findings recorded by me, I am of the considered opinion that this is not a fit case where the discretion can be exercised in favour of the appellant-plaintiff for extending time any further.
9. In view of the findings recorded by me above, the appeal is devoid of merits and accordingly the same is dismissed with costs.
