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IN THE HON’BLE COURT OF VIII ADDL.DIST. & SESSIONS JUDGE
(FAST TRACK COURT) GAJUWAKA
PRESENT: SMT. P. ANNAPURNA.,
VIII ADDL. DISTRICT & SESSIONS JUDGE
(Fast Track Court) Gajuwaka.
OS No. 375/2008
Tuesday, the 29th day of March 2016 Between:
Doddi Ramana Babu S/o Late Paradesi Naidu, Hindu, aged 35 years, r/at D.No. 22-109-18, Dayal Nagar, Pedagantyada, Gajuwaka Mandal, Visakhapatnam.
…Plaintiff
And:
1. Smt. Anga Manikyam W/o Late Narasinga Rao, Hindu, aged 63 years, r/of Flat No. 4, Excelsum Apartments, Ramanagar, Visakhapatnam.
2. Sri. Anga Sankar S/o Late Narasinga Rao, Hindu, aged 39 years, r/o Q.No. 12/12, EWS Quarters, Ramanagar, Visakhapatnam.
3. Sri. Anga Ramu S/o Late Narasinga Rao, Hindu, aged 43 years, r/o Flat No.404, Vital Towers, Vijayanagar Palace Layout, Peda Waltair, Visakhapatnam.
4. Sri. Anga Suresh S/o Late Narasinga Rao, Hindu, aged 28 years, r/o Flat No. 4, Excelsum Apartments, Ramanagar, Visakhapatnam. …Defendants 1 to 4
This suit is coming on 18.03.2016 for final hearing before me in the presence of Sri V. Eswara Rao, Advocate for Plaintiff and of Sri G.
Chiranjeevi, Advocate for Defendants 1 to 4 and the matter having stood over for consideration till this day, this court passed the following:
J U D G M E N T
1.The suit is filed for specific performance of contract directing the defendants to execute the sale deed in favour of plaintiff and register the same at the expenses of the plaintiff and receive the balance sale consideration or for any reason the defendants failed to execute the registered sale deed in favour of the plaintiff, the Hon’ble Court to execute the sale deed n favour of the plaintiff, register the same at the expenses of the plaintiff and for costs of the suit etc.
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2.The material averments of the plaint in brief are as follows:
The defendants are the owners of the house site in an extent of 300 sq. yards covered by S. No. 114 and 118, Plot No. 36 situated at Gajuwaka,
Visakhapatnam which is described as schedule property and they offered to sell the same for the purpose of their family expenses etc. for a total consideration of Rs.11,47,500/- i.e at the rate of 3,825/- per sq. yard for which the plaintiff agreed to purchase and paid an advance of Rs. 1,50,000/- on 11.10.2005 and the defendants executed an agreement of sale in favour of plaintiff on the even date and agreed to execute a registered sale deed in favour of plaintiff at his expenses after measuring the schedule property and taking necessary permission from the concerned authorities and receive the balance of sale consideration. Subsequently inspite of repeated demands made by the plaintiff, the defendants did not choose to perform their part of contract and postponing the same on one pretext or the other though the plaintiff is ready and willing to perform his part of contract. The plaintiff learnt that due to sudden increase of land prices, the defendants are actively trying to alienate the schedule property in favour of third parties for their illegal gain and to cause wrongful loss to the plaintiff. The plaintiff demanded the defendants to perform their part of contract in lieu of agreement of sale but in vain and the defendants used to give evasive replies and also proclaimed that they will alienate the schedule property in favour of third parties even by force. The plaintiff got issued a legal notice
dt. 25.08.2008 to the defendants demanding them to execute registered
sale deed and receive the balance of sale consideration but D1 and D3 received notices and did not comply and D2 and D4 notices returned as un- served. However all the defendants sent a reply notice dt. 02.09.2008 through their counsel stating that they are the owners of the property entered into sale agreement and a copy of agreement retained with them 3 but could not be traced and requested the plaintiff to send a copy of the same. Subsequently the plaintiff sent another notice dt. 26.09.2008 to the defendants counsel narrating all the facts therein demanded for execution of registered sale deed and receive the balance but having received the notice on 01.10.2008, defendants did not comply or give any reply. Subsequent demands made by plaintiff to perform their part of contract and execute the registered sale deed and receive the balance of sale consideration but the defendants who are, very adamant did not choose to perform their part of contract. Hence the suit.
3.Written statement is filed by D4 and D1, D2 and D3 adopted the written statement of D4 by filing adoption memo. The brief contents of the written statement are as follows. The defendants denied the plaint allegations and stated some of them are created and submitted that the plaintiff intentionally omitted to mention all the terms of the agreement and it is true that there was an agreement between them and the price was fixed at Rs. 3,825/- per sq. yard and agreed to sell 300 sq. yards and it is true the plaintiff paid Rs. 1,50,000/- on the date of execution of agreement. The plaintiff has to pay the remaining balance leaving Rs. 20,000/- within two months from the date of execution of agreement i.e 11.10.2005 and receive the original deeds and take possession of the property if not, the sale agreement will be cancelled. The defendants further stated that the remaining amount of Rs. 20,000/- after the Gajuwaka House Committee cleared, then immediately either in the name of plaintiff or as per his wish and it is the responsibility of the defendants to get clearance on the costs of plaintiff that the plaintiff should bear the expenditure for the registration and defendants should register the same and to receive the balance of sale consideration and it is responsibility of defendants to get the surveyor and measure the site and the plaintiff has to pay the balance consideration and 4 submitted the plaintiff never approached them at any time before issuing any notice and never stated his willingness to get the sale deed registered by paying the remaining balance of sale consideration and did not pay it within two months of sale agreement and did not receive the original deeds and did not take possession of the property and as such the agreement stands cancelled. The plaintiff got issued lawyer’s notice without performing his part of contract as if the sale agreement is subsisting by the date of issuing notice and as per the terms of sale agreement once the plaintiff failed to pay the balance sale consideration, the agreement automatically cancelled. The plaintiff never offered to pay the balance sale consideration after 11.10.2005 and he got issued the notice on 25.08.2008 mentioning that the defendants were postponing the registration due to hike in prices which is not correct. The plaintiff did not come to court with clean hands and intentionally omitted to mention about the receipt of reply notice dt.
21.10.2008 denying the allegations in his notice and reply notice was sent to plaintiffs advocate under courier service which was received by the father of their advocate on 27.10.2008 and the defendants are filing the receipt and delivery run sheet issued by courier service. The defendants submit that the plaintiff failed to perform his part of contract and cannot say the defendants failed to perform their part of contract is not correct and the suit be dismissed with costs.
4.Basing on the above pleadings and material on record, the following issues have been framed:
1)Whether the plaintiff committed breach of contract and whether time is essence of contract?
2)Whether the contract stood cancelled for default of the plaintiff?
3)Whether the plaintiff is ready and willing to perform part of contract 5 and if so, whether the plaintiff is entitled to the relief of specific performance of agreement of sale?
4)To what relief?
5.PWs 1 to 4 were examined on behalf of plaintiff and Ex. A1 to A10 were marked. DW1 is examined on behalf of defendants and no document is marked on their behalf.
6.Heard the counsels for both sides.
7.ISSUE Nos. 1 and 2:It is an admitted fact that there was an agreement between the plaintiff and the defendants. The defendants also admitted that the price was fixed at Rs. 3825/- per sq. yard and they agreed to sell 300 sq. yards and that the plaintiff has paid Rs. 1,50,000/- on the date of the execution of agreement. It is the contention of the plaintiff as per the agreement dt. 11.10.2005, plaintiff paid an amount of Rs.
1,50,000/- towards advance sale consideration and they agreed to execute the registered sale deed in his favour at his expenses after measuring the schedule property and taking necessary permission from the concerned authorities and receive the balance consideration and subsequently inspite of repeated demands, the defendants did not choose to perform their part of contract and postponing the same on one pretext or the other, though he is ready and willing to perform his part of contract and due to sudden increase of land prices, the defendants are actively trying to alienate the suit schedule property in favour of third parties for higher price for their illegal gain and to cause wrongful loss to him. On the other hand, the defendants contend that the plaintiff intentionally omitted to mention all the terms of agreement while admitting the agreement and receiving Rs.1,50,000/- from the plaintiff on the day of execution of agreement and further contended 6 that the plaintiff has to pay the remaining balance leaving Rs. 20,000/- within 2 months from the day of the execution of the agreement dt.
11.10.2005 and receive the original deeds and take possession of the property if not, the sale agreement would be cancelled and argued that the remaining amount of Rs. 20,000/- after the Gajuwaka House committee cleared register either in the name of plaintiff or as per his wish and it is the responsibility of the defendants to get clearance on costs of plaintiff and the plaintiff should bear the expenditure for registration. It is also admitted in the written statement that it is the responsibility of the defendants to get the site measured by the surveyor and the plaintiff has to pay the balance of consideration and they argue that the plaintiff never approached them at any time before issuing the notice and never stated his willingness to get the registered sale deed by paying the balance. The perusal of the contents of the agreement of sale marked as Ex. A1 will help in this regard and Ex. A1 shows the property of 300 sq. yards is agreed to be sold at the rate of Rs.
3,825/- per sq. yard and defendants received Rs. 1,50,000/- towards advance at the time of agreement of sale and after deducting Rs. 20,000/-, the balance consideration shall be paid within two months on which date the plaintiff has to take original title deeds and possession of the property failing which the agreement would be cancelled. The above Rs. 20,000/- shall be received after the house committee cleared at the expense of plaintiff and on the responsibility of defendants, to get clearance. It is also mentioned in Ex.
A1 that the sale consideration shall be paid to the extent measured as per the measurements of the surveyor. The chief affidavit of PW1 is the replica of the plaint. Ex. A10 is the legal notice dt. 25.08.2008. The learned counsel for the plaintiff contended that defendants issued Ex. A6 notice calling upon him to produce the xerox copy of Ex. A1 to give proper reply and then PW1 got issued Ex. A7 rejoinder notice to the counsel of defendants along with xerox copy of Ex. A1. These facts were admitted in the cross examination of 7
DW1. According to plaintiff after Ex. A7 rejoinder notice, with copy of Ex.
A1, there is no reply from the defendants. But DW1 stated in his cross examination that he does not remember whether any reply notice was issued by him or not in pursuance of Ex. A7 and stated he has not filed any documents along with his chief affidavit as well as his written statement.
The written statement of DW1 shows defendants sent a reply Dt. 21.10.2008 denying notice allegations to the plaintiff’s advocate through courier service which was received by the father of the advocate on 27.10.2008 and they are filing the receipt and delivery run sheet issued by the courier service. In
Para No.7 of the written statement the date of reply notice is mentioned as 21.10.2008 Ex. A10 bears the date as 25.08.2008. Further DW1 stated in his cross examination that he does not remember whether any reply notice was sent or not. On behalf of defendants no document is marked. It shows that no reply is given by the defendants to the plaintiff denying the notice allegations got issued by plaintiff as contended by the defendants.
The learned counsel for the defendants further contended that as per the sale agreement terms once the plaintiff failed to pay the balance sale consideration, the agreement was automatically cancelled and the plaintiff never offered to pay the balance consideration after 11.10.2005 and contended that the plaintiff issued the notice as if the agreement is subsisting between the parties. The learned counsel for the plaintiff contended that there is no mention in Ex. A1 about the automatic cancellation as alleged by the defendants and argued that as per the terms of Ex. A1, the agreement would be cancelled if plaintiff fails to perform. On perusal of Ex. A1 shows defendants received Rs. 1,50,000/- towards advance and out of the balance after deducting Rs. 20,000/- the plaintiff shall pay the balance within 2 months from the date of agreement and shall obtain original title deeds and take possession failing which they cancel the 8 agreement. The learned counsel for plaintiff contended that no notice is issued by the defendants cancelling the agreement and it means the agreement is subsisting and was not cancelled till today and that as per the terms of Ex. A1, the agreement would not be cancelled automatically. DW1 stated in his cross examination that he has not issued any lawyer’s notice to plaintiff by expressing the cancellation of Ex. A1 as the plaintiff failed to perform his part of the contract within 2 months as contemplated under Ex.
A1 till now. The perusal of Ex. A1 does not show the word that the agreement stands cancelled automatically in case of failure on the part of plaintiff. Therefore I hold that the contention of the defendants’ counsel that the agreement stood automatically cancelled is not accepted.
The contention of the defendants’ counsel is that the plaintiff omitted to mention all the terms of the agreement which are material facts in this case and contended that the plaintiff failed to mention in the plaint about the fact that the plaintiff has to pay the remaining balance leaving Rs. 20,000/- within two months from the day of execution of the agreement dt.
11.10.2005 and receive the original deeds and take possession of the property if not, the sale agreement would be cancelled and this fact was mentioned by them in Para No.3 of the written statement and argued that the pleadings shall state the particulars with dates and items where necessary and as per Order VI Clause 4 in all cases in each the party pleading relies on any misrepresentation, fraud, breach of trust, willful default or undue influence and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading. As already discussed, in this case execution of Ex. A1 is admitted by the defendants and a copy of agreement was also sent by the plaintiff on request of defendants along with Ex. A7 rejoinder notice got issued by 9 plaintiff. So I hold that the plaintiff has not omitted or suppressed the facts as contended by defendants’ counsel. The learned counsel for the defendants relied on Sec. 101 and Sec. 102 of Evidence Act and stated that the burden is on the plaintiff alone. The legal principles were stated regarding burden of proof in Sec. 101 and 102 of Evidence Act. He also relied on Sec. 53-A of Transfer of Property Act. He also relied on AIR 1996
SUPREME COURT Pg. No 116 Between N.P.Thirugnanam (Appellant) Vs.
R. Jagan Mohan Rao (Respondent) and argued that the remedy for specific performance is an equitable remedy and fact of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and under Sec. 20, the court is not bound to grant the relief just because there was valid agreement of sale. The defendants counsel also relied on 2006(1) APLJ 29 (DNSCC) Supreme Court Between
State of Orissa Vs. Md. Illiyas, wherein it is held only ratio decidendi is binding that it is not everything said by a judge while giving judgment that constitutes a precedent. The only thing in a judges decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi.
8.According to the defendants counsel, the plaintiff has to pay the remaining balance leaving Rs. 20,000/- within two months and receive the original deeds and take possession of the property if not the sale agreement will be cancelled and argued that in this case the plaintiff never approached them and did not pay the remaining balance within two months and did not receive the original deeds and did not take possession of the property and as such the agreement stands cancelled. The learned counsel for plaintiff contended that the defendants having received the advance amount agreed to execute registered sale deed in favour of plaintiff at his expenses after measuring the schedule property and taking necessary permission from the 10 concerned authorities and receive the balance sale consideration. The point to be decided is whether the plaintiff performed his part of the contract within two months. The issue framed on this point is whether the plaintiff committed breach of contract and whether time is essence of contract. The learned counsel for the plaintiff contended that the defendants have to get measured the property and unless the measurements are taken, he cannot pay the balance and defendants never took any steps for measuring the property and on the other hand they tried to alienate the property due to sudden increase of land prices and when he questioned, the defendants used to give vague replies and also proclaimed that the defendants will alienate the schedule property in favour of third parties even by force and then he got issued Ex. A10 legal notice demanding them to execute the registered sale deed by receiving the balance. D1 and D3 received the notice and did not comply the same and notices of D2 and D4 returned as un-served and all the defendants sent a reply Dt. 02.09.2008 stating that they are the owners of the property entered into sale agreement and a copy of agreement retained with them that the said copy could not be traced and requested to send him a copy of the same. Pws 2 and 3 who are the attestors on Ex. A1 stated that they know the entire transaction of sale agreement and defendants agreed to execute sale deed in favour of plaintiff at his expenses after measuring the schedule property and taking necessary permission from the concerned authorities by receiving the balance sale consideration. Plaintiff informed them that he demanded defendants to measure the schedule property and register the sale deed in his favour but the defendants did not choose to perform their part of contract and postponing the same on one pretext or the other even though the plaintiff is ready and willing to perform his part of contract. Then plaintiff, Pws 2 and 3 and other elders approached the defendants but they failed to perform their part of contract. Nothing is elicited in the cross examination of Pws 2 and 3 11 except suggesting that they have no personal knowledge about the contents mentioned in the chief affidavit . PWs 2 and 3 stated in their cross examination that they know PW1 for the last 20 years and plaintiff informed them that the defendants are not coming forward for surveying the suit property. PW4 who is the scribe of Ex. A1 stated that he knows the entire transaction and the defendants agreed to execute sale deed as per Ex. A1 infavour of plaintiff at his expenses after measuring the schedule property and taking necessary permission from the concerned authorities by receiving the balance of sale consideration. In his cross examination he stated that on that day both parties came to him and asked him to scribe Ex.A1 and he denied the suggestion that he has not mentioned in Ex. A1 the defendants agreed to execute the sale deed after measuring the suit property and also taking necessary permission from the concerned authorities by receiving the balance of sale consideration. As already stated except Dw1 no other witness is examined and no reply notice is given denying the allegations of
Ex. A10 notice. Ex. A1 recitals show that the schedule property shall be measured by the surveyor on the costs of defendants and plaintiff has to pay the balance for the actual extent after measurements at the price mentioned above. In this case it is not the case of the defendants that they got the property measured by the surveyor and informed the plaintiff. It is also mentioned in Ex. A1 that out of the balance of sale consideration after deducting Rs. 20,000/-, the plaintiff shall pay the balance within two months and shall take original title deeds and possession of schedule property.
According to defendants, the plaintiff did not take the original title deeds and take possession by paying the balance within two months after deducting Rs.
20,000/-. According to Plaintiff, the defendants did not choose to perform their part of contract inspite of repeated demands though the plaintiff is ready and willing to perform his part of contract and finally he issued Ex.
A10 notice and the defendants who are very adamant did not choose to 12 perform their part of contact and hence he filed the present suit.
9.The learned counsel for the plaintiff contended that since the defendants did not complete their part of contract that is measuring of property by surveyor, it is not possible for the plaintiff to pay the remaining balance within two months and argued that time is not the essence of the contract in the case of immovable properties. He further contended that the payment of Rs. 20,000/- shall be deducted out of balance of sale consideration and it is the responsibility of the defendants to obtain necessary permission from the house committee and the defendants did not inform the clearance from the house committee and as per the terms after measuring the property and taking necessary permission, defendants have to receive the balance of sale consideration for the actual extent. DW1 stated in his cross examination that it is true that the suit schedule property comes under house committee and the government issued Ex. A9 GO for regularization of the suit schedule property and it is true the suit is filed in respect of the suit schedule property alone. He does not know whether any prohibition for transfer of the suit schedule land by the government till 2008 or not. The learned counsel for the plaintiff contended that there is a prohibition by the government till the date of Ex. A9 to register the sale deed in respect of schedule property and filed Ex. A9 GO issued in 2008.
Regarding house committee clearance , there is a mention in Ex. A1 and it is mentioned that immediately after house committee clearance at the expense of plaintiff, it is the responsibility of defendants, they will register in the name of plaintiff or any person as per his wish and receive Rs. 20,000/- as final sale consideration. Further there is no evidence contrary to it on the aspect of clearance of House Committee by the defendants. So it cannot be said that delay was due to plaintiff.
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The learned counsel for plaintiff relied upon the following decisions.
Mohammed Abdul Azeem and another Vs M/s. South India Prime Tan nery Pvt Ltd rept. By its managing director, H. Abdul Lateef - Laws (APH)-2016- 2-7 High Court of AP in CCCA No.323/2007.
In that case suit for specific performance was decreed in favour of plaintiff in respect of suit schedule property i.e undivided half share in premises. The defendants preferred the present appeal and one of the issue is whether time is the essence of contract and their contention of the
Appellants/defendants is having failed to pay the amount within two months, the plaintiff filed the suit at the fag end of three years as if the defendants having agreed to evict the tenants from the suit premises and obtain income tax clearance certificate under sec. 230-A of income tax act and argued those conditions were not at all stipulated in Ex. A1 and the allegations were levelled by the plaintiff only to cover up his latches and argued that the time is the essence of contract. The plaintiff therein contended that time is not the essence of contract in respect of immovable properties and two months time is prescribed only for registration but not for payment of balance of sale consideration because sale consideration has to be ascertained after arriving at the extent of the land on physical measurements and the defendants failed to get measured the suit schedule property before filing the suit and time cannot be treated as essence of contract even assuming time is essence of contract, the parties by their conduct have not treated the said period as essence of the contract. In the present case also, the defendants have to get the property measured by surveyor. Admittedly that was not done. The intention of the parties can be determined by the express condition or by necessary implication. The intention to treat time as the essence of contract may be evidenced by circumstances which should be sufficiently strong to displace the normal presumption that in a contract of sale in land, stipulation as to time is not the essence of the contract. In this 14 case as already stated, the measurements were not completed to pay the balance of sale consideration and Ex. A1 stipulates the plaintiff shall pay as per physical measurements at the rate fixed after taking the measurements.
The defendants did not issue any legal notice to the plaintiff canceling the suit agreement and it is the plaintiff who issued Ex. A10 notice for which they asked the plaintiff to send a copy and did not give reply for Ex. A7 rejoinder. In that case, the Hon'ble High Court dismissed the appeal and confirmed the decree and judgment of the trial court directing the defendants to execute the registered sale deed within two months.
The learned counsel for the plaintiff relied upon the decision reported in
Nandagiri Godavari Vs. Kanuganti Sudershan - LAWS (APH)-2011-7-24 – High Court of AP in SA No. 367/2011.
The suit filed by the plaintiff was dismissed directing the defendants to refund the advance amount of Rs. 99,000/- received by them through the plaintiff. The first appellate court reversed the decree and judgment of the trial court and the second appeal is filed. In that case the balance consideration has to be paid by the last week of March, 2003 and the contention of plaintiff therein is that several times he approached the defendants and informed that he had kept the amount ready and requested them to receive and defendants were evading on one pretext or other and defendants ultimately issued legal notice on 23.05.2003 that they repudiated the agreement for not paying the balance of consideration by the end of march and it is also mentioned in the notice that they forfeited the amount of Rs. 99,000/- paid by plaintiff as advance. It is pointed out in the said judgment that the defendants did not afford any opportunity to the plaintiff to pay the balance of sale consideration as found by the first appellate court but issued Ex, A3 Dt. 23.05.2003 stating that they repudiated the contract.
It is held whether the plaintiff is ready and willing to perform his part of 15 contract and it is well settled that in a suit for specific performance of contract relating to immovable property time is not the essence of contract and merely because the balance of sale consideration was not paid on or
before the stipulated date, it cannot be presumed that the plaintiff is not
ready and willing to perform his part of contract. The findings of the first appellate court are based on evidence and on consideration of the pleadings of both the parties and also the facts and circumstances of the case.
In this case also, no notice is issued by the defendants cancelling the agreement marked as Ex. A1.
The plaintiff also relied upon the decision reported in
K.S. Vidyanadam Vs. Viravan – LAWS(SC)-1997-2-1- SUPREME COURT OF INDIA decided on 6 th February, 1997
In that case, the agreement of sale of property in major urban city and a period of 6 months agreed upon to execute sale deed for a period of 2 ½ years the plaintiff was sitting quite without taking any steps to perform his part of contract. The trial court denied specific performance suit and directed refund of earnest money. D4 is the purchaser of suit property from
D1 to D3 after decree of the trial court and was the respondent in the appeal.. In that case on 11.07.1981 i.e more than 2 ½ years later the plaintiff issued legal notice through his advocate to D1 to D3 stating that he was always ready and willing to perform his part of the contract that he is sufficiently rich and able to pay the amount as and when required and argued as per agreement though the defendants were under obligation to deliver vacant possession but because the tenant has so far not vacated, the plaintiff is prepared to purchase the property with the tenant, D1 to D3 sent a reply as time is the essence of contract that the prices are sharply increasing that the tenant is their relation who is always ready and willing to vacate the property and plaintiff was not ready and willing to complete the 16 transaction, as the prices have gone up three times and the plaintiff has come forward with the suit notice. The trial court held plaintiff was ready but was not willing to perform his part of contract. The trial court dismissed the suit for specific performance but directed the earnest money be refunded. On plaintiff’s appeal the division bench reversed the judgment of trial court and accepted the plaintiff’s case that plaintiff has been asking for execution and that the defendant had been seeking time representing that the tenant has not vacated. The Hon’ble High Court affirmed the findings of the trial court that time was not the essence of the contract but reversed the trial court’s findings with respect to plaintiffs readiness and willingness to perform his part of contract. It is discussed in Page-4 along with other cases holding even if time is not the essence of contract, the court may infer that it is to be performed in a reasonable time if the conditions are evident. That is
1) from the express terms of the contract 2) from the nature of property 3) from the surrounding circumstances for example, the object of making the contract.
In this case the plaintiff’s case is that the defendants have not measured as per agreement and not taken clearance from House
Committee. From the above discussion, I hold that plaintiff has not committed any breach of contract and time is not the essence of contract in this case as seen from the recitals of Ex.A1 coupled with the intention and conduct of parties and since the measurements by surveyor is not completed within two months, it cannot be held that the plaintiff is defaulting party and contract stood cancelled. These two issues are answered in favour of plaintiff and against the defendants.
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ISSUE No. 3
10.The learned counsel for the plaintiff contended that the plaintiff is always ready and willing to perform his part of contract and he issued notice expressing the same and also averred in the plaint that he is willing and ready to perform his part of contract that the defendant did not give any reply for Ex. A7 rejoinder notice and also relied on the evidences of Pws 2 to 4, who are attestors and scribe respectively and they stated the said fact in their evidence and Pws 2 and 3 stated that plaintiff informed them that he demanded the defendants to measure the schedule property and register the sale deed but defendants did not choose to perform their part of contract even though plaintiff is ready and willing to perform his part of contract.
Then they approached the defendants but they failed to perform their part of contract. The learned counsel for the defendants contended that plaintiff never approached them before issuing notice and never stated his willingness to get the sale deed by paying the balance of sale consideration within two months and did not receive the original deed and failed to take possession and defendants cancelled the agreement.
The plaintiff’s counsel also relied upon the decision reported in
Manjunanda Anandappa Vs. Tammanasa – LAWS (SC)-2003-3-23 – SUPREME COURT OF INDIA Decided on 13 th March, 2003
The facts of the said case are different to the facts of the present case.
In the said case, the plaintiff was allegedly put in possession of the property.
The trial court dismissed the suit holding that the plaintiff having not averred his willingness and readiness to perform his part of contract in the plaint, he is not entitled for decree in specific performance and having regard to the conduct of the plaintiff refused to grant the discretionary relief. The first appellate court agreed with the said findings. In the second appeal filed by the plaintiff, the Hon’ble High Court reversed the said findings and only the 18 substantial question of law framed was as regards the readiness and willingness on the part of the plaintiff.
11.In the discussion, the other judgments were also discussed wherein it is stated the readiness and willingness cannot be treated as a strait jacket formula. These have to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned.
Appeal is allowed.
The plaintiff’s counsel also relied upon the decision reported in
Pydi Ramana @ Ramulu Vs. Devarsetty Manmadha Rao LAWS (APH)- 2011-6-13 High Court of AP in SA 1282/2008 decided on 7 th June, 2011
In that case the suit for specific performance was decreed by the trial court and in AS No. 39/2004, the judgment was reversed, against the same and the second appeal is preferred. In that case agreement of sale was of the year 1993. The suit was filed in the year 1998 and more than 12 years had lapsed since then. In this case also the plaintiff was waiting for the defendants to perform their part of contract namely to get the land physically measured in order to ascertain the actual extent of the land to enable him to make the payment of the balance of sale consideration. In the above case held, the defendant was trying to avoid the performance of his part of contract.
Finally the second appeal is partly allowed and the judgment and decree of the lower appellate court is partly modified and opined that it would be just and equitable if the plaintiff pays additional sale consideration.
From the above discussions, I hold that the issue is answered in favour of plaintiff. This issue is answered in favour of plaintiff.
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ISSUE NO. 4
In the result, the suit is decreed for relief of specific performance of suit agreement of sale dt. 11.10.2005 subject to the condition that plaintiff shall deposit the balance of sale consideration into court within 2 months from the date of judgment and thereafter defendants shall execute regular registered sale deed in favour of plaintiff within two months, failing which the plaintiff is at liberty to get the sale deed registered through process of court.
There is no order as to costs in view of the facts and circumstances of the case.
Dictated to the Typist and typed directly on computer, corrected and
pronounced by me in the open court on this the 29th day of March, 2016
VIII ADDL. DIST. & SESSIONS JUDGE
(Fast Track Court) Gajuwaka 20
APPENDIX OF EVIDENCE
No. of witnesses examined for the Plaintiffs:
P.W.1Doddi Ramana Babu
P.W.2Malla Venkata Suryanarayana
P.W.3Palesetti Demudu
P.W.4Modalavalasa Krishna Rao
No. of documents marked for the plaintiffs
Ex.A.111.10.2005Original Agreement of Sale Ex.A.2-Postal acknowledgement Ex.A.3-Postal acknowledgement Ex.A4-Postal Return Cover Ex.A5-Postal Return Cover Ex.A621.09.2008Reply Notice Ex.A726.09.2008Registered Rejoinder Notice Ex.A8-Postal acknowledgement Ex.A911.01.2008Photocopy of the G.O.Ms. No. 44 Ex.A1025.08.2008Office copy of the Registered Lawyers Notice
No. of witnesses examined for the Defendants:
DW1Anga Suresh Kumar
No. of documents marked for the defendants.
NIL
VIII Addl. Dist. & Sessions Judge, (Fast Track Court) Gajuwaka.
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IN THE HON’BLE COURT OF VIII ADDL.DIST. & SESSIONS JUDGE
(FAST TRACK COURT) GAJUWAKA
PRESENT: SMT. P. ANNAPURNA.,
VIII ADDL. DISTRICT & SESSIONS JUDGE
(Fast Track Court) Gajuwaka.
OS No. 375/2008
Tuesday, the 29th day of March 2016 Between:
Doddi Ramana Babu S/o Late Paradesi Naidu, Hindu, aged 35 years, r/at D.No. 22-109-18, Dayal Nagar, Pedagantyada, Gajuwaka Mandal, Visakhapatnam. …Plaintiff And:
1. Smt. Anga Manikyam W/o Late Narasinga Rao, Hindu, aged 63 years, r/of Flat No. 4, Excelsum Apartments, Ramanagar, Visakhapatnam.
2. Sri. Anga Sankar S/o Late Narasinga Rao, Hindu, aged 39 years, r/o Q.No. 12/12, EWS Quarters, Ramanagar, Visakhapatnam.
3. Sri. Anga Ramu S/o Late Narasinga Rao, Hindu, aged 43 years, r/o Flat No.404, Vital Towers, Vijayanagar Palace Layout, Peda Waltair, Visakhapatnam.
4. Sri. Anga Suresh S/o Late Narasinga Rao, Hindu, aged 28 years, r/o Flat No. 4, Excelsum Apartments, Ramanagar, Visakhapatnam. …Defendants 1 to 4
1.suit is filed for specific performance of contract directing the defen- dants to execute the sale deed in favour of plaintiff and register the same at the expenses of the plaintiff and receive the balance sale con- sideration or for any reason the defendants failed to execute the regis- tered sale deed in favour of the plaintiff, the Hon’ble Court to execute the sale deed in favour of the plaintiff, register the same at the ex- penses of the plaintiff and for costs of the suit etc.
2.The value of the suit is Rs. 11,47,500/- and a court fee of Rs. 13,926/-is paid thereon under Sec. 39(a) Sch. I Art. I (b&c) of APCF and SV Act.
3.This suit is coming on 18.03.2016 for final hearing before me in the presence of Sri V. Eswara Rao, Advocate for Plaintiff and of Sri G. Chiranjeevi,
Advocate for Defendants 1 to 4 and the matter having stood over for consideration till this day, this court doth order and, 22
D E C R E E
1. that the defendants 1 to 4 be and are hereby directed to execute the regis- tered sale deed in favour of the plaintiff within two months from the date of this decree after receiving the balance of sale consideration in terms of agreement of sale dt. 11.10.2005, failing which the plaintiff is at liberty to get the sale deed registered through process of court; and
2. that in the circumstances no costs;
Given under my hand and the seal of this Court, this the 29 th day of March 2016.
VIII Addl. Dist. & Sessions Judge, (Fast Track Court) Visakhapatnam
MEMORANDUM OF COSTS
For the Plaintiff:For the Defendant:
No costs memo filedCosts memo filed
Stamp on VakalatRs.-2-00
Stamp on Main Rs.-- Petition
Stamp on petitionRs.--
Process FeeRs.--
Court fee on documentRs.--
Senior Advocate feeRs.-10,000-00
Junior advocate FeeRs.--
Type chargesRs.-- -10,002-00 Rs. Costs certified
VIII Addl. Dist. & Sessions Judge, (Fast Track Court) Visakhapatnam. NOTE:-
Copy of the Plaint Schedule is hereby attached.
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