Venuthurumalli Gopala Krishna Rao, J
1. The appeal is filed against the judgment and decree dated 12-10-2006 in O.S.No.13 of 1997 passed by the learned VII Additional District and Sessions Judge (Fast Track Court), Vijayawada, Krishna District. The suit is filed for specific performance of agreement of sale.
2. The case of the plaintiffs as narrated in the plaint, in brief, is as follows:
(a) It is pleaded that the 1st defendant entered into an agreement of sale with the 1st plaintiff on 02-11-1979 in respect of land of Ac.1-80 cents out of Ac.4-17 cents bearing R.S.No.473/2 of Poranki Village, Penamaluru Mandal, Krishna District, agreeing to sell the same at Rs.89,000/- per acre.
The 1st defendant received an advance of Rs.20,000/- from the 1st plaintiff on the date of agreement of sale. The 1st defendant also agreed to get necessary permission from Urban Land Ceiling Authority (ULCA, for short) for completion of the transaction. The 2nd defendant attested the agreement of sale, giving consent particularly for the term relating to removal of the shed and vacate the portion of the plaint schedule land. As per the terms and conditions of agreement of sale, the 1st defendant has to measure the land and to remove the shed raised by the 2nd defendant and to deliver the vacant possession. The balance of sale consideration has to be paid at the time of registration of sale deed within a period of 40 days. In case of delay by the plaintiffs in payment of balance amount, it shall be paid with interest.
Whenever the 1st plaintiff required to perform his part of contract, the 1st defendant has been promising but postponing it on the ground that permission from ULCA is not received and that the 2nd defendant also seeking time for removal of shed.
(b) It is further pleaded that on 18-10-1982, the 1st plaintiff got issued a notice demanding the 1st defendant to comply the conditions of agreement of sale and to obtain permission from ULCA and to get vacate it by the 2nd defendant after removing the shed. The notice was returned with an endorsement as the 1st defendant is not available in the house for one week. Subsequently, the 1st plaintiff met the 1st defendant at Vijayawada and the 1st defendant expressed his inability to comply with the conditions of agreement and sought further time. On 26-6-1985 and on 14-9-1987, the 1st plaintiff addressed letters to the 1st defendant not to make further delay in performing his part of contract. The 1st plaintiff is always ready and willing to perform his part of contract. On 21-01-1998, the 1st plaintiff got issued a registered notice to the 1st defendant demanding to perform his part of contract. But, the 1st defendant managed to return the same knowing the contents of it. The 1st plaintiff also got a copy of the notice sent under certificate of posting, dated 04-02-1988. The 1st plaintiff learnt that the 1st defendant received the same but kept quiet. The 1st defendant failed to perform his part of contract. Now, the 1st plaintiff believes that the 1st defendant is trying to avoid contract due to escalation of prices of property. Hence, the suit.
3. Brief averments in the written statement filed by the 1st defendant, which was adopted by the 2nd defendant by filing a memo, are as follows:
It is contended that the 2nd plaintiff cannot claim any relief basing on the Will. The legal representatives of deceased 1st plaintiff are necessary parties and because of the failure to implead them, the suit is not maintainable. Hence, the suit may be dismissed with costs.
4. Brief averments in the written statement filed by the defendants 5 and 6 are as follows:
It is contended that the 1st plaintiff was having ancestral properties and there is no partition took place in between the predeceased son of 1st plaintiff and they continued as a joint family till the death of predeceased son of 1st plaintiff. Moreover, the 1st plaintiff sold some of the ancestral properties at their native place and with those funds, the schedule property was purchased from the 1st defendant under an agreement of sale. As such, the schedule property is nothing but a joint family property of the 1st plaintiff and his predeceased son. The alleged Will in favour of the 2nd plaintiff is not binding on them, since there is no possibility for giving gift of joint family property to any others under a Will. The 5th defendant being the wife of the predeceased son of the 1st plaintiff and the 6th defendant being the minor daughter, they are also entitled to get share in the schedule property. The schedule property is liable for partition between them and the 2nd plaintiff. As such, they are necessary parties to the suit. Hence, the suit may be decreed in their favour.
5. During pendency of the suit before the trial Court, the 1st plaintiff died and the 2nd plaintiff was added. So also, the 2nd defendant died and defendants 3 to 9 were added.
6. Based upon the pleadings of both the parties, the trial Court framed the following issues for trial:
(1) Whether the agreement of sale dated 02-11-1979 is binding on all the defendants ?
(2) Whether the suit is barred by limitation ?
(3) Whether the suit schedule is the personal property of the 1st defendant ?
(4) Whether the plaintiff is entitled for delivery of possession as prayed for ? and
(5) To what relief ?
The trial Court framed the following two issues in the first instance on 03-4-1989:
(1) Whether the plaintiff is entitled for specific performance of the suit contract as prayed for ?
(2) To what relief ?
The trial Court framed the following additional issue on 25-4-1994:
(1) Whether the plaintiff is entitled to the relief of recovery of possession after removal of thatched hut raised by the 2nd defendant ?
The trial Court also framed the following additional issues on 28-02-1996:
(1) Whether the plaintiff has relinquished his rights in the sale agreement dated 02-11-1979 ?
(2) Whether the defendant returned sale amount of Rs.20,000/- to the plaintiff on 02-01-1980 ?
The trial Court also framed the following additional issue on 10-4-2000:
(1) Whether the 2nd plaintiff is not entitled for the relief of specific performance and the suit is liable to be dismissed ?
Lastly, the trial Court framed the following additional issues on 09-9-2005:
(1) Whether the agreement of sale dated 02-11-1979 is binding on all the defendants ?
(2) Whether the suit is barred by limitation ?
(3) Whether the suit schedule is the personal property of the 1st defendant ?
(4) Whether the plaintiff is entitled for delivery of possession as prayed for ?
and
(5) To what relief ?
7. During the course of trial, on behalf of the plaintiffs, P.Ws.1 to 3 are examined and Exs.A-1 to A-22 are marked. On behalf of the defendants, D.Ws.1 to 3 are examined and no documentary evidence is adduced on their behalf.
8. After completion of the trial and hearing the arguments of both sides, the trial Court dismissed the suit without costs.
9. Aggrieved by the said judgment and decree of the trial Court in dismissing the suit, the 2nd plaintiff has preferred the present appeal.
10. During the pendency of the appeal before this Court, the 1st respondent/1st defendant died and respondents 10 to 13 were brought on record as legal representatives of the deceased 1st respondent as per Court order dated 31-5-2010 made in A.S.M.P.No.163 of 2010.
11. Heard Sri P. Prabhakara Rao, learned counsel for the appellants/ plaintiffs and Smt. M. Maha Lakshmi, learned counsel representing on behalf of Sri K. Rama Mohan, learned counsel for the respondents/defendants.
12. The learned counsel for appellants would contend that the judgment and decree passed by the trial Court is contrary to law and the Court below erred in not decreeing the suit as prayed for, since Ex.A-1 agreement of sale was accepted by the 1st defendant and he would further contend that the judgment and decree passed by the trial Court is liable to be set aside and the appeal may be allowed.
13. Per contra, the learned counsel for respondents/defendants would contend that on appreciation of the entire evidence on record, the learned trial Judge rightly dismissed the suit and there is no need to interfere with the finding given by the learned trial Judge and that the appeal may be dismissed by confirming the judgment and decree passed by the learned trial Judge.
14. Now, the points for determination in the present appeal are:
(1) Whether the suit is barred by limitation ?
(2) Whether the 1st appellant is ready and willing to perform his part of the contract ?
(3) Whether the trial Court is justified in dismissing the suit ? and
(4) To what extent ?
15. Point No.1: Whether the suit is barred by limitation ?
Admittedly, in the case on hand, Ex.A-1 agreement of sale is dated 02-11-1979 and total extent of land agreed to sell is Ac.1-80 cents and it is agreed to sell for Rs.89,000/- per one acre and the total agreed sale price is Rs.1,60,200/-, from out of which a paltry amount of Rs.20,000/- is paid by the 1st plaintiff under Ex.A-1 agreement of sale, dated 02-11-1979. As per the terms of agreement, remaining balance of sale consideration has to be paid by the 1st plaintiff within one month and ten days and time limit is fixed to perform part of the contract by 12-12-1979, otherwise the 1st plaintiff has to pay the said amount with interest.
16. Admittedly, no notice has been issued by the 1st plaintiff to the 1st defendant by expressing his readiness and willingness on or before 12-12-1979. Admittedly, notice has been issued by the 1st plaintiff under Ex.A-2 on 18-10-1982, at the fag end of limitation of three years from the date of Ex.A-1 agreement of sale. Ex.A-3 goes to show that the said notice was returned and Exs.A-4 and A-5 go to show that the 1st plaintiff sent another letter under certificate of posting, Ex.A-6 is another letter, dated 14-9-1987, which was sent under certificate of posting. Ex.A-8 also goes to show that the 1st plaintiff sent another notice, which was returned under Ex.A-9. Admittedly, no proof has been filed by the 1st plaintiff that the registered notice under Ex.A-2 has been served on the 1st defendant. The suit is filed on 27-02-1988. As stated supra, the date of Ex.A-1 agreement of sale is 02-11-1979. The 1st plaintiff chosen to file the suit after a lapse of eight years from the date of agreement of sale. As stated supra, time limit fixed for performance of contract is 12-12-1979. Admittedly, no notice has been issued by the 1st plaintiff to the 1st defendant by expressing his readiness and willingness to pay the balance of sale consideration. As stated supra, from out of Rs.1,60,200/-, a paltry amount of Rs.20,000/- has been paid on the date of Ex.A-1 agreement of sale. The suit has been filed by the 1st plaintiff after a lapse of 8½ years from the date of Ex.A-1 agreement of sale. To show bona fides of the 1st plaintiff, the 1st plaintiff also did not deposit the remaining balance of sale consideration in the account of the 1st defendant in any nationalized bank.
17. The learned counsel for respondents relied on a judgment of the Apex Court in the case of Usha Devi v. Ram Kumar Singh 2024(5) ALT 24, wherein it is held as follows:
“8. We need not enter into the other issues as we are convinced that the suit was barred by limitation. The limitation under Article 54 of the Limitation Act, 1963 for instituting a suit for specific performance of a contract would be three years from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. Article 54 of the Limitation Act, 1963 is reproduced hereunder:
|
“54. For specific Three years performance of a contract |
The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.” |
Coming to the facts of the present case, the agreement of sale is dated 02-11-1979. It is specifically recited in the sale agreement that the remaining balance of sale consideration has to be paid on or before 12-12-1979. Time limit has been fixed for performing the part of contract, but the 1st plaintiff failed to pay the said amount or he did not choose to issue any notice within the stipulated time i.e. on or before 12-12-1979. The 1st plaintiff got issued a legal notice on 18-10-1982. There is no evidence that the 1st defendant received the said legal notice whatsoever, the 1st defendant has not responded to the said legal notice. Therefore, he has to file a suit within three years from 18-10-1982, on which date when the 1st plaintiff noticed that the performance of contract is refused by the 1st defendant. In such a case, the 1st plaintiff has to file a suit within three years from 18-10-1982, on which date the 1st plaintiff noticed the refusal of performance of contract by the 1st defendant. But the suit is filed on 27-02-1988. As stated supra, the date of agreement of sale is 02-11-1979. Therefore, the suit is hopelessly barred by limitation. Accordingly, the point is answered against the plaintiffs.
18. Point No.2:- Whether the 1st appellant/1st plaintiff is ready and willing to perform his part of the contract ?
The suit is filed based on Ex.A-1 agreement of sale, dated 02-11-1979. Time limit fixed for performance of the contract is by 12-12-1979, by which date the 1st plaintiff has to pay the remaining balance of sale consideration of huge amount of Rs.1,40,200/-. As stated supra, a paltry amount of Rs.20,000/- was only paid on the date of agreement of sale. No notice is issued by the 1st plaintiff on or before 12-12-1979 by expressing his readiness and willingness to pay the balance of sale consideration. No doubt, there was a recital in the agreement of sale that measurement of site and removal of thatched hut belongs to the 2nd defendant shall be done by the 1st defendant, but the measurement of site and removal of thatched hut belongs to the 2nd defendant has to be taken up after receipt of balance of sale consideration only by the 1st defendant. Furthermore, the 1st plaintiff never demanded the 1st defendant before the date of stipulation of time mentioned in the agreement of sale on or before 12-12-1979 to measure the schedule property and to remove the thatched hut belongs to the 2nd defendant. Moreover, the question of eviction of the 2nd defendant from the schedule property would arise only after receipt of balance of sale consideration. It is an admitted fact that the present suit was filed after a lapse of 8 years and 4 months from the date of Ex.A-1 agreement of sale.
19. It is well settled that “the question whether relief of specific performance of a contract for the purchase of immovable property should be granted or not, always depends on the facts and circumstances of each case and the Court would not grant such a relief if it gives the plaintiff an unfair advantage over the defendant”.
20. In the case of Swarnam Ramachandran v. Aravacode Chakungal Jayapalan (2004) 8 SCC 689, the Apex Court held as follows:
“Whether time is of the essence is a question of fact and the real test is the intention of the parties. In depends upon the facts and circumstances of each case. In cases where notice is given making time of the essence, it is the duty of the court to examine the real intention of the party giving such notice by looking at the facts and circumstances of each case. The intention can be ascertained from:
(i) the express words used in the contract;
(ii) the nature of the property which forms the subject-matter of the contract;
(iii) the nature of the contract itself; and
(iv) the surrounding circumstances.
The onus to plead and prove that time was of the essence of the contract is on the person alleging it, thus giving an opportunity to the other side to adduce rebuttal evidence that time was not of the essence. When the plaintiff pleads that time was not of the essence and the defendant does not deny it by evidence, the court is bound to accept the plea of the plaintiff.”
21. In the case of K.S. Vidyanadam v. Vairavan (1997) 3 SCC 1, the Apex Court held as follows:
“10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time-limit(s) specified in the agreement have no relevance and can be ignored with impunity? It would also mean denying the discretion vested in the court by both Sections 10 and 20. As held by a Constitution Bench of this Court in Chand Rani v. Kamal Rani [(1993) 1 SCC 519] : (SCC p. 528, para 25)
“… it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the conditions are (evident?): (1) from the express terms of the contract; (2) from the nature of the property; and (3) from the surrounding circumstances, for example, the object of making the contract.”
22. In the case on hand, as states supra, it is a case of total inaction on the part of the 1st plaintiff. It is a clear violation of the terms of the contract which require him to pay the balance of sale consideration on or before 12-12-1979. Even where the time is not an essence of contract, the 1st plaintiff must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all surrounding circumstances including the express terms of the contract and nature of the property.
23. A Constitution Bench of Apex Court in the case of Chand Rani v.Kamal Rani (1993) 1 SCC 519 held that even time is not an essence of contract, the Court has to infer that it is to be performed within a reasonable time.
24. In the case of U.N. Krishna Murthy v. A.M. Krishna Murthy (2023) 11 SCC 775, the Apex Court held as follows:
“42. In Saradamani Kandappan v. S. Rajalakshmi [(2011) 12 SCC 18], this Court reiterated that:
42.1. ……………………….
42.2 ………………………..
42.3 Every suit for Specific Performance need not be decreed merely because it is filed within the period of limitation, by ignoring time limits stipulated in the agreement. The courts will also frown upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait for one or two years to file a suit and obtain Specific Performance. The three year period is intended to assist the purchaser in special cases, as for example where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser.”
25. It is well settled that for the relief of specific performance, the plaintiff has to prove that all alone and till the final decision of the suit, he was ready and willing to perform his part of the contract, it is the bounden duty on the plaintiff to prove his readiness and willingness by adducing evidence, the crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in the plaint of readiness and willingness would not suffice.
In the case on hand, the 1st plaintiff failed to discharge his part of the contract. To prove his readiness and willingness to perform his part of the contract the plaintiff has to adduce cogent evidence, but the 1st plaintiff failed to prove his readiness and willingness to perform his part of the contract by adducing oral evidence on record. Accordingly, the point is answered against the appellants /plaintiffs.
26. In the case on hand, the 1st plaintiff averred in the plaint that in case if the Court refused the main relief of specific performance of agreement sale, alternative relief of refund of advance amount may be granted.
27. Section 22 of Specific Relief Act, 1963 defines as follows:
“22. Power to grant relief for possession, partition, refund of earnest money, etc.—
(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for—
(a) possession, or partition and separate possession, of the property, in addition to such performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.
(3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21.”
28. In the case of Usha Devi v. Ramkumar Singh 2024(5) ALT 24, based on the facts in the cited case, the Apex Court held that “the suit is barred by limitation. Though there is no relief in the plaint about the alternative relief of refund of amount, the Apex Court ordered to refund of the advance amount with interest”.
29. Therefore, by applying the ratio in the aforesaid case law and on considering the provision under Section 22 of the Specific Relief Act, I am inclined to grant alternative relief of refund of advance amount of Rs.20,000/-from the date of Ex.A-1 agreement of sale dated 02-11-1979 till the date of payment by the legal representatives of the 1st defendant i.e. respondents 10 to 13 to the 2nd appellant/2nd plaintiff.
30. Point No.4: To what extent ?
In the result, the appeal is dismissed by confirming the judgment and decree passed by the trial Court. But, the 2nd appellant/2nd plaintiff is entitled to the alternative relief of refund of advance amount of Rs.20,000/- (Rupees twenty thousand only) with interest at 6% per annum from the date of Ex.A-1 agreement of sale i.e. from 02-11-1979 till the date of payment by the legal representatives of the 1st defendant i.e. respondents 10 to 13. Pending applications, if any, shall stand closed. Each party do bear their own costs in the appeal.
