Jagarlamudi Srinivasa Rao v. Vintha

1. Jagarlamudi Srinivasa Rao, S/o.Venkateswarlu, Hindu, aged about 37 years, Occ: Business, R/o.D.No.16-22-21, Old Guntur, Guntur District.

2. Dhulipalla Venkateswara Rao, S/o.Mallikharjuna Rao, aged about 49 years, Occ: Business, R/o.Venkatakrishnapuram Village, Pedakakani Mandal, Guntur District. [Both represented by their G.P.A. Holder Mohd. Javid, Son of Abdul Rahman] ...APPELLANTS/PLAINTIFFS AND

Vintha Gopireddy, S/o.Venkatappareddy, 66 years,

Occ: Business, R/o.D.No.6-226, Mangalagiri, Guntur District. Guntamukkala Venkataswamy (Died) Guntumukkala Ramulamma, W/o.Venkataswamy, aged about 57 years, R/o.Venkatakrishnapuram Village, Pedakakani Mandal, Guntur District.

Guntumukkala Pullarao, S/o.Venkataswamy, aged about 39 years, R/o.Venkatakrishnapuram Village, Pedakakani Mandal, Guntur District.

Guntumukkala Srinivasa Rao, S/o.Venkataswamy, aged about 36 years, R/o.Venkatakrishnapuram Village, Pedakakani Mandal, Guntur District.

Guntumukkala Nagabhushanam, S/o.Venkataswamy, aged about 33 years, R/o.Venkatakrishnapuram Village, Pedakakani Mandal, Guntur District. (Respondents 3 to 6 added as L.Rs. of 2"^ Respondent as per Orders in I.A.No.190 of 2011, dated 03.03.2011) ...RESPONDENTS/DEFENDANTS/PLAINTIFFS Appeal under Section 96 of CPC against the Judgment and Decree dated 29-08-2012 passed in OS.No.56 of 2010 on the file of the Court of the District Judge, Guntur, Guntur District. This appeal coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Trial Court and material papers in the Suit and upon hearing the arguments of Sri Ch.Venkaiah, Advocate representing Sri Venkat Chalasani, Advocate for Appellants and of Sri Rama Chandra Rao Gurram, Advocate for Respondent No.1, and none appeared for Respondent Nos.3 to 6. This Court doth Order and decree:

1. That the appeal be and hereby is allowed in part to the extent of granting alternative relief to the plaintiffs only, in the following terms:- i) ii) That the impugned Judgment dated 29.08.2012 of the District Judge, Guntur in O.S.No.56 of 2010 be and hereby is confirmed; That the defendant be and hereby is directed to refund an amount of Rs. 16,50,000/- (Rupees Sixteen Lakhs Fifty Thousand only) to the plaintiffs; iii) That three months’ time be and hereby is given to the defendant to return the said amount to the plaintiffs; and iv) That on receipt of the said sum, the plaintiffs be and hereby are directed to return Ex.A-1 to the defendant herein;

That the parties be and hereby are directed to bear their own costs in the appeal. To, SD/- S.V.S.R. MURTHY JOINT REGISTRAR //TRUE COPY// SECTION OFFICER

1. The District Judge, Guntur, Guntur District.

2. Two CD Copies TAG HIGH COURT DATED:31/07/2025 DECREE AS NO. 15 OF 2013 ST >0 SEP 2025 K gentSectio gSis: «» ALLOWING THE APPEAL SUIT IN PART WITHOUT COSTS APHC010638712013 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI THURSDAY, THE THIRTY FIRST DAY OF JULY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI AND THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM APPEAL SUIT NO: 15 OF 2013 Appeal filed under Section 96 of CPC against the Judgment and Decree dated 29-08-2012 passed in OS.No.56 of 2010 on the file of the Court of the District Judge, Guntur, Guntur District. Between:

Jagarlamudi Srinivasa Rao, S/o.Venkateswarlu, Hindu, aged about 37 years, Occ: Business, R/o.D.No. 16-22-21, Old Guntur, Guntur District.

2. Dhutipalla Venkateswara Rao, S/o.Mallikharjuna Rao, aged about 49 years, Occ: Business, R/o.Venkatakrishnapuram Village, Pedakakani Mandal, Guntur District. [Both represented by their G.P.A. Holder Mohd. Javid, Son of Abdul Rahman] ...APPELLANTS/PLAINTIFFS AND

1. Vintha Gopireddy, S/o.Venkatappareddy, 66 years, Occ: Business, R/o.D.No.6-226, Mangalagiri, Guntur District.

2. Guntamukkala Venkataswamy (Died)

3. Guntumukkala Ramulamma, W/o.Venkataswamy, aged about 57 years, R/o.Venkatakrishnapuram Village, Pedakakani Mandal, Guntur District.

4. Guntumukkala Pullarao, S/o.Venkataswamy, aged about 39 years, R/o.Venkatakrishnapuram Village, Pedakakani Mandal, Guntur District.

5. Guntumukkala Srinivasa Rao, S/o.Venkataswamy, aged about 36 years, R/o.Venkatakrishnapuram Village, Pedakakani Mandal, Guntur District.

6. Guntumukkala Nagabhushanam, S/o.Venkataswamy, aged about 33 years, R/o.Venkatakrishnapuram Village, Pedakakani Mandal, Guntur District. (Respondents 3 to 6 added as L.Rs. of 2"^* Respondent as per Orders in I.A.No.190 of 2011, dated 03.03.2011) ...RESPONDENTS/DEFENDANTS/PLAINTIFFS lA NO: 1 OF 2013(ASMP 45 OF 2013^ Petition filed under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the 1st respondent herein not to alienate the suit schedule property in OS.No.56 of 2010 on the file of the Court of District Judge, Guntur. lA NO: 1 OF 2015(ASMP 1815 OF 20151 Between: Vintha Gopi Reddy, S/o.Venkatappa Reddy, aged 72 years. Business, R/o.D.No.6-226, Mangalagiri Town, Guntur District. ...PETITIONER/1®^ RESPONDENT/1®^ RESPONDENT AND Jagarlamudi Srinivasa Rao, S/o.Venkateswarlu, aged 39 years, Business, R/o.D.No. 16-22-21, Old Guntur, Guntur District. Dhulipalla Venkateswara Rao, S/o.Mallikharjuna Rao, aged 51 years. Business, R/o.Venkatakrishnapuram, Peda Kakani Mandal, Guntur District. R1 and R2 rep. by G.P.A. Holder Mohd. Javid, S/o.Abdul Rahman. ...RESPONDENTS 1 & 2/PETITIONERS/APPELLANTS Guntamukkala Venkataswamy (Died) Guntumukkala Ramulamma. Guntumukkala Pullarao. Guntumukkala Srinivasa Rao. Guntumukkala Nagabhushanam.

...RESPONDENTS 3 TO 7/RESPONDENTS 2 TO 6/ RESPONDENTS 2 TO 6. (Respondents 3 to 7 are not necessary to this petition) Petition filed under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to vacate the interim Order dated 12.12.2013 passed in ASMP No.45 of 2013 in AS No.15 of 2013 and dismiss the appeal. Counsel for the Appellants : SRI CH.VENKAIAH, ADVOCATE REPRESENTING SRI VENKAT CHALASANI Counsel for Respondent No.1 : SRI RAMA CHANDRA RAO GURRAM Counsel for Respondent Nos.3 to 6 : NONE APPEARED The Court made the following: APHC010638712013 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3524] (Special Original Jurisdiction) THURSDAY,THE THIRTY FIRST DAY OF JULY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM FIRST APPEAL NO: 15/2013 Between:

1.JAGARLAMUDI OF VENKATESWARLU, HINDU, AGED ABOUTE37 YEARS. OCC;BUSINESS, RESIDENT OF.D.NO.16-22-21, OLD GUNTUR, GUNTUR DISTRICT. ANOTHERS. SRINIVASA RAO SON AND ABOUT;49

2.DHULIPALLA VENKATESWARA RAO,, SON OF MALLIKHARJUNA RAO, AGED OF OCC: VENKATAKRISHNAPURAM VILLAGE, PEDAKAKAN! MANDAL, GUNTUR DITRICT [BOTH REPRESENTED BY THEIR G.P.A. HOLDER MOHD. JAVID, SON OF ABDUL RAHMAN] BUSINESS, RESIDENT YEARS, AND ...APPELLANT(S) I.ViNTHA GOPIREDDY AND 5 OTHERS, SON OF VENKATAPPAREDDY, AGED ABOUT 66 YEARS, OCC: BUSINESS, RESIDENT OFIP.NO.6-226, MANGALAGIRI, GUNTUR DISTRICT

2.GUNTAMUKKALAVENKATASWAMY DIED,

3.GUNTUMUKKALA RAMULAMMA, W/O VENKATASWAMY,

4.GUNTUMUKKALA PULLARAO, S/0 VENKATASWAMY,

5. GUNTUMUKKALA SRINIVASA RAO, S/O VENKATASWAMY,

6.GUNTUMUKKALA NAGABHUSHANAM, S/O VENKATASWAMY, ...RESPONDENT(S): to allow the appeal by setting aside the judgment and decree dt. 29-08-2012 passed by the court of the District Judge, Guntur in OS.No.56/2010, and decree the suit with costs in favour of the appellants/ plaintiffs and pass. lA NO: 1 OF 2013(ASIVIP 45 OF 2013 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the 1 st 2 respondent herein not to alienate the suit schedule property in OS.NO.56/2010 on the file of the court of District Judge, Guntur and pass. lA NO: 1 OF 2015(ASMP 1815 OF 2015 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to vacate the interim order dt. 12.12.2013 passed in AS MP No.45 of 2013 in AS No.

15 of 2013 and dismiss the appeal. lA NO: 2 OF 2015tASMP 2133 OF 2015 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant leagve to the petitioner to file the copy of corrected General Power Attorney which is filed herewith and may be taken on record lA NO: 1 OF 2017tASMP 16706 OF 2017 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased lA NO: 1 OF 2024 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to permit the petitioners/plaintiffs to amend the prayer portion of the plaint after para VII) (a) by including the alternative relief for a decree for refund of advance amount of Rs.

16,50,000/- with subsequent interest at 12% per annum from the date of agreement, i.e., 16.12.2006 till date of realization in the interest of justice Else, the petitioners suffer irreparable loss and injury. The Hon’ble Court may be pleased to permit the petitioners follows. CONSEQUENTIAL AMENDMENT; (i) In the prayer portion of the amended plaint in OS.No.56/2010 after main relief at para VII) (a) the following alternative relief to be included, (or) Alternately to pass a decree for Rs. 16,50,000/- (Rupees Sixteen Lakhs and Fifty Thousand Only) directing defendant to pay to the plaintiffs being the refund of advance amount paid under the agreement of sale, dated 16.12.2006 with subsequent interest at 12% per annum from the date of agreement of sale till realization. consequential amendment of the plaint Counsel for the Appellant(S);

1.VENKATCHALASANI

2.ALI FAROOQUE Counsel for the Respondent(S):

1. RAMA CHANDRA RAO GURRAM The Court made the following: THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM APPEAL SUIT No.15 of 2013 JUDGMENT: (Per Hon’ble MRK, J) Heard Sri Ch. Venkaiah, learned counsel representing the learned counsel for the appellants/plaintiffs and Sri G. Rama Chandra Rao, learned counsel for the 1^' respondent/defendant. None appeared for respondent Nos.3 to 6/plaintiff Nos.4 to 7.

2. The instant first appeal is instituted by the appellants / plaintiff Nos.1 and 2 being aggrieved by the Decree and Judgment dated 29.08.2012 passed in O.S.No.56 of 2010 on the file of the Court of District Judge, Guntur, wherein. the suit for specific performance of Agreement of Sale dated 16.12.2006 was dismissed against the 1 St respondent/defendant, arraying the sole defendant as 1®* respondent herein, and 3'^'^ plaintiff, who died and his legal representatives as respondent Nos.2 to 6 in the instant appeal before this Court.

3. For the sake of convenience, the parties are hereinafter referred to by their nomenclature, before the Trial Court. Brief Case of the appellants/plaintiffs:

4. The brief case of the plaintiffs is that the sole defendant is the owner of the Suit Schedule Property having purchased the same under Registered Sale Deed bearing document No.5234/2003, dated 26.08.2003 and he has been i peaceful possession and enjoyment of the same. It is further the case of the plaintiffs that the defendant himself offered to sell the Schedule Property which the plaintiffs have agreed, Accordingly, on 16.12.2006, defendant executed a sale agreement in favour of the plaintiffs for a valid consideration of Rs.66.00,000/- out of which plaintiffs paid an amount of Rs. 16,50,000/-, which the defendant has received and endorsed in the sale agreement.

5. It is further the case of the plaintiffs that according to the terms of the agreement dated

16.12.2006, plaintiffs balance of consideration of Rs.49,50,000/- to the defendant within two months, upon which defendant was obliged to execute registered Sale Deed in favour of the plaintiffs. It is also agreed that if the plaintiffs fail to perform their part of contract within the stipulated time, they have to pay an interest of 12% per annum on the balance sale consideration for the period of delay. It is also the case of the plaintiffs that the defendant has agreed to measure the Schedule Property under Agreement of Sale dated 16.12.2006 and receive the balance sale consideration as per the extent arrived.

6. According to the plaintiffs, they have approached the defendant several times and sought the defendant to receive the balance of consideration and register the Sale Deed, but the defendant postponed the same on one context or another and did not co-operate for the same. It is further the case of the plaintiffs that the defendant has shown them the Schedule Property under Agreement of Sale dated 16.12.2006 as a square shape plot. However, on 5 enquiry, plaintiffs came to know that the said property is in triangular shape. When the plaintiffs questioned the defendant about the same, the defendant issued Legal Notice dated 11.05.2007 with false allegations, for which the plaintiffs issued Reply Notice dated 23.05.2007, expressing their willingness and intention to pay balance sale consideration and obtain Registered Sale Deed, after the defendant got the land surveyed and fix the boundary stones in a square shape, but the defendant did not co-operate. Hence, the plaintiffs instituted the lis seeking for specific performance of the Agreement of Sale dated 16.12.2006 against the defendant, including delivery of possession of the same. Brief case of the 1^^ respondent/defendant:

7. On the other hand, defendant filed Written Statement denying material allegations made in the plaint, while admitting the execution of sale agreement for Rs.66,00,000/- and also agreeing to receive the balance sale consideration of Rs.49,50,000/- within two (2) months to execute registered Sale Deed after getting it measured. According to the defendant, he never approached the plaintiffs with an offer to sell the suit schedule property and when he intended to sell the said property to meet his legal necessity, the plaintiffs having come to know about it, approached the defendant and visited the Suit Schedule Property, verified the title and possession and negotiated with the defendant.

It is further the case of the defendant that on the date of agreement itself. he made it clear to the plaintiffs that time is the essence of the Agreement of Sale as he was selling the property to meet argent legal necessity, but the plaintiffs did not comply with the terms and conditions of Agreement of Sale. Subsequently on 11.05.2007, the defendant issued Legal Notice demanding the plaintiffs to pay balance sale consideration and obtain registeredSale Deed, to which the plaintiffs issued a reply with false allegations, It is also the case of the defendant that it was the plaintiffs, who caused the delay and approached the Court by filing the suit for specific performance just before the date of expiry of the limitation.

It is apt to mention that during pendency of the suit, plaintiff No.3 (G.Venkata Swamy) died and his legal representatives were brought on record as plaintiff Nos.4 to 7 vide orders dated 03.03.2011 in I.A No. 190 of 2011. Consequently, amended plaint was filed by adding the plaintiff No.3 legal representatives. In contrary, additional written statement was filed inter alia contending that the legal representatives filed neither Legal Heir Certificate Family Member Certificate. Findings of the Trial Court:

By considering the pleadings, the Trial Court framed the following issues; 1) Whether time is the essence of contract of sale? 2) Whether the plaintiffs are always ready and willing to perform their part of the contract from the date of agreement till filing suit? 3) Whether the plaintiffs are entitled to a decree for specific performance of agreement of sale dated

16.12.2006? 7 #

It is apt to state that plaintiff No.1 was examined as P.W.1, 2^^^^ attestor in Ex.A-1, dated 16.12.2006 was examined as P.W.2. Agreement of Sale dated

16.12.2006 was marked as Ex.A-1, office copy of Legal Notice dated

11.05.2007 issued by the defendant to plaintiffs was marked as Ex.A-2 and Reply Notice dated 23.05.2007 & its postal acknowledgment dated 24.05.2007 were marked as Ex.A-3 and Ex.A-4. On the other hand, the sole defendant was examined himself as D.W-1, the 1®’ attestor of Ex.A-1 was examined as D.W-2 and third party was examined as D.W-3, during the suit proceedings.

The Trial Court in respect of Issue No.1 (Whether time is the essence of contract of sale) held in favour of the plaintiffs. The remaining Issue Nos. 2 and 3 were held in favour of the defendant. Consequently, the suit was dismissed vide Judgment and Decree dated 29.08.2012 in O.S.No.56 of 2010 by the learned District Judge, Guntur. Challenging the same, plaintiff Nos.1 and 2 arraying the sole defendant as the 1®‘ respondent and the 3'^'^ plaintiff and his legal representatives as respondent Nos.2 to 6, instituted the instant Appeal before this Court. Submissions on behalf of the appellants/plaintiffs:

Learned counsel for the appellants, advanced arguments that the impugned judgment is unjustified, perverse, contrary to the law and the material on record.

13.1 Learned counsel for the appellants/plaintiffs contended that having correctly held that Issue no.1, which pertains whether the time being essence oi contract of sale, ought to have allowed the suit.

13.2 Learned counsel invited our attention to the terms of Agreement of Sale (Ex.A-1) and submitted that there is no term in the Agreement to cancel the sale in the event of failure by the parties to the contract, the agreement continuously bind the parties and it has to be enforced in an appropriate manner without giving go by.

13.3. Learned counsel for the appellants/plaintiffs asserted that before paying the balance sale consideration, the defendant has to measure the Schedule Property under Ex.A-1 to determine the actual amount of sale consideration measurements (taking measurement and fixing boundaries of Schedule Property is pre-condition for payment of balance consideration). Since, the defendant himself evaded to get the land measured because of which, the plaintiffs were not able to perform their part of the contract.

13.4 Learned counsel for the appellants/plaintiffs also submitted that the plaintiffs were always ready and willing to pay the balance sale consideration and to obtain registered Sale Deed and that plaintiffs have already paid substantial amount of Rs.16,50,000/- on 16.12.2006 towards payment at the time of execution of Agreement of Sale, out of the total sale consideration of Rs.66,00,000/-. 9 #

13.5 Learned counsel further submitted that the findings of the learned Trial Court regarding the financial capacity of the plaintiffs is based on mere surmises, conjectures and contrary to the material on record and submitted that plaintiffs pooled the amount for sale consideration, but used it for their personal purpose. Subsequently, the defendant did not conduct the survey of the land to ascertain the extent of land and that the findings of Trial Court with regard to the pooling up of the resources, is not relevant to the facts in question.

13.6. Learned Counsel contended that the trial court ought to have granted Ordinary Rule that is specific performance as held in Prakash Chandra Us. Angadlal and Ors\ since they acted fairly throughout the whole time. He placed reliance on P.D’Souza Vs Shondril Naidu^ and N.Tyagaraju and Others Vs Narayana Swamy and Ors^., wherein it is held that the defendant cannot take advantage of his own wrong and the conduct of the defendant cannot be ignored, while adjudicating specific performance suit.

13.7. Concerning to the alternative relief of amount paid by the plaintiffs, learned counsel urged that the Trial Court while refusing to grant main relief of specific performance of agreement to sell, should have directed the defendant to return the amount of Rs. 16,50,000/- with 12% interest, which was paid on

16.12.2006 at the time of execution of Agreement of Sale as the receipt of the said amount was not at all disputed by the defendant. ’ 1979 (SC) 1241 " AIR 2004 SC 4472 2 2014 (2) ALT 540 # 10 Submissions on behalf of the 1^* respondent/defendant:

Learned counsel for the r' respondent/defendant submitted that the plaintiffs suppressed the true material facts and filed the suit with false and untenable allegations, came to the court with unclean hands for an equitable relief of specific performance.

14.1 Learned counsel for the 1"" respondent/defendant contended that on the date of Agreement of Sale itself, the defendant had clearly and categorically stated that the time is the essence of the Agreement of Sale and that he was selling the same to meet the educational expenses of his paternal granddaughter and the plaintiffs have agreed to the same by assuring the defendant that they would pay the balance sale consideration as per the terms and conditions of the Agreement of Sale within two months of date of Agreement.

14.2. Learned counsel for the 1"" respondent/defendant contended that in view of the failure of plaintiffs to comply the terms and conditions of the Agreement of Sale (Ex.A-1), the defendant and his family members have suffered a multifarious loss. Hence, the defendant issued a Legal Notice dated

11.05.2007 to the plaintiffs by mentioning the terms of Agreement of Sale and demanded them to pay the balance sale consideration within a week, from the date of receipt of the said Notice to obtain registered Sale Deed and further informed the plaintiffs in the said Legal Notice that Agreement of Sale between plaintiffs and defendant will cancelled the amount of Rs. 16,50,000/- paid by the plaintiffs will be forfeited. 11

14.3. Learned counsel for the 1 respondent/defendant further submitted that both the parties agreed to the terms of Agreement of Sale dated

16.12.2006(Ex.A.1), wherein the balance sale consideration shall be paid within two months, from the date of execution of Sale Agreement, which is the first part of the obligation to be complied by the plaintiffs and thereby the defendant has to get the land measured and execute regular Sale Deed. So, he submits that unless the obligation on the part of the plaintiffs is not complied, the question of compliance of obligation by the defendant does not arise, since the payment of balance sale-consideration is a pre-requisites.

14.4. Learned counsel for the 1 respondent/defendant asserted that the plaintiffs were never ready and willing to perform their part of obligation at any point of time from the date of execution of Agreement of Sale. He also asserted that the plaintiffs have no means or source of income or any financial capacity or status to poo! the money sufficient to pay the balance sale consideration. Moreover, the plaintiffs are trying to evade their part of obligations on one context or another and invented story on shape of the property.

14.5. Counsel for the 1®‘ respondent/defendant also argued that the defendant himself issued Legal Notice (Ex.A-2) dated 11.05.2007, demanding the plaintiffs to pay the balance sale consideration within one week, to which. plaintiffs gave Reply Notice dated 23.05.2007. Subsequently, the plaintiffs filed the suit in the year 2010, which further demonstrates their lack of readiness and willingness and diligence. In support of his submissions, the learned counsel 12 cited the dictums held in Rajesh Kumar Vs Anand Kumar & Ors'^, wherein the Hon’ble Supreme Court relying on precedents such as K.S Vidyanadam^, Azhar Sultana^, Saradamani Kandappan^ and Atma Ram^ held that the plaintiff was not entitled to specific performance due to inordinate detay. Basing on the said decision, the learned counsel submits that even though the suit technically filed within the limitation period, the delay in filing and the plaintiffs lack of prompt action demonstrates their lack of readiness and willingness.

14.6. Learned counsel contended that even if we assume that defendant has breached the contract, plaintiffs have not substantiated their plea of ready and willingness to perform their part of obligations and hence they are not entitled to the relief of the specific performance, for which, he placed reliance on Mar) Kaur (Dead) Vs. Hartar Singh Sangha\ wherein, the Apex Court held that the plaintiff must clearly state and prove readiness and willingness perform his part of the contract and if he fails to show the same, he is not entitled to get relief of specific performance.

14.7. At last, the learned counsel for the 1®' respondent/defendant summarized that the Trial Court reasoning with regard to Issue Nos.2 & 3 is correct. ^ 2024 see Online SC 981 5(1997) 3 SCC1 '’(2009) 17 see 27 ' (2011) 12 see 18 (2020) 3 sec 311 ^ (2010) 10 sec 512 13 # Analysis:

After perceiving the above rival contentions of both the parties, the following points arise for adjudication in the instant lis;- (1) Whether time could be said to be the essence of Agreement of Sale (Ex.A-1)? (2) Whether the plaintiffs were always ready and willing to perform their obligations? (3) Whether the plaintiffs are entitled for the alternative relief of refund of advanced money under Ex.A-1 or not?

In order to answer the core issues involved in the present lis, it may be appropriate to tabulate the primary date of events as under;- Serial No. Description of Events Date

1. Execution of Agreement to Sale

16.12.2006

6. bayana Payment appellants/plaintiffs amount Rs.16,50,000/- According to the Sale Agreement realize/expire on (i.e. 60 days from the date of agreement entered within which the plaintiffs have to pay balance sale consideration)

16.12.2006

16.12.2006

14.02.2007 Issuance of Legal Notice issued by the 1®' respondent/defendant

11.05.2007 Reply appeltants/plaintiffs Notice issued

23.05.2007 Date of filing of suit in O.S No.56 of 2010

15.02.2010

At the threshold, it is apt to note that legislative amendments i.e.. Act 18 of 2018 to the Specific Relief Act, 1963 is prospective in nature and it cannot be 14 construed to affect rights or obligations arising from transactions completed before the amendment came into force. Applying the amended provisions retrospectively would not only contravene the principle of legality but also result in undue hardship to the parties involved.

Before going through the analysis in the instant issue, it is apt to extract the recitals made in Agreement of Sale dated 16.12.2006 (Ex-A. 1), for the sake of comprehensive view;-

1-00 of Rs.33,00,000/- for Ac. I have purchased an extent of Ac.2-00 cents from Desiboyina Nallaiah and others by and under a registered sale deed, dated 26.08.2003, bearing document No.5234/2003 of Sri Mangalagiri Sub-Registrar and same is in my possession and enjoyment and for the benefit of my family, I offered to sell the same and you came fonA/ard to purchase and as such same is sold to you for Rs.66,00,000/- for Ac.2-00 cents at the cents. Out of said Rs.66,00,000/- (Rupees Sixty Six Lakhs Only) you paid amount of Rs. 16,50,000/- (Rupees Sixteen Lakhs and Fifty Thousand Only) cash at the time of preparation of this agreement of sale before the attestors mentioned below, and is agreed that the remaining sale consideration of Rs.49,50,000/- (Rupees Forty Nine Lakhs and Fifty Thousand Only) to be paid within two months from today. If you fail to pay the balance sale consideration within the period fixed, you have to pay the interest at the rate of Rs.1/- consideration and get the sale deed registered. After making said remaining sale consideration ready and when you invite me for registration if I postpone the same and if amount, you are at liberty to take legal action against me and I will be completely responsible for the same. I have not created any alienations of subject property till date. This sale agreement is executed with my own volition per hundred per month on the received the same. It remaining I demand

SCHEDULE Gunturu District within the limits of Mangalagiri Sub- Mangalagiri Mandal, an extent of Ac.2-00 Registrar, 15 # cents, out of D.No.184/1 total extent of Ac. 3-36 cents, bearing Village, RS.No.184/1B of within the limits of Chinakakani Grama Panchayat area in which have got right and sold to you and it is bounded by as follows:- Chinakakani East South West Others land Government Donka Railway margin Boundary North Others land Within these boundaries an extent of Acres 2.00 cents or boundaries demarcating

0.80 hectares dry raised (meraka) land, is sold to you, along with all the old traditional and easementary rights. The said land shall be handed over by conducting survey registration. The condition is that the amount payable Shalt be at the rate as agreed above, for the area determined as per the revenue records. I shall handover the vacant possession of the said land by the time of shall handover the complete record of the registration. said land. Witness

1. Sd/-Ponnekanti Puma Chandra Rao

2. Sd/- Satish Kumar Point No.1:

The first point for determination is as to whether time could be construed to be the essence of the Agreement of Sale dated 16.12.2006?

In matters relating to sale of immovable property, there is a general presumption that time is not considered to be the essence of contract, unless it is explicitly stated in the contract or inferred from the circumstances surrounding the agreement. However, it is apposite to note the well settled legal principles 16 set out by the Hon’ble Supreme Court in Govind Prasad Chaturvedi v. Hari Dutt Shastrr^, held at page Nos.543-544 as under;- “

5. It is settled law that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. When a contract relates to sale of immovable property it will normally be presumed that the time is not the essence of the contract. [Vide Gom.athinayagam Pillai v. Pallaniswami Nadar (1967) 1 SCR 227, AIR 1967 SC 868 (at p. 233).] It may also be mentioned that the language used in the agreement is not such as to indicate in un-mistakable terms that the time is of the essence of the contract. The intention to treat time as the essence of the contract may be evidenced by circumstances which are displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of the contract.” sufficiently strong

In Roque Fredrick Ladinho Collasso and Ors. vs. Camilo Antonio Aquaviva and Ors^\ the Apex Court had held as follows:- “

8. As a general proposition of law, in the case of sale of immovable property there is no assumption as to time being the essence of contract. In cases where it is not made an essence of the contract the Court may infer that it is to be performed in a reasonable time, if the conditions are evident from the expressed terms of the contract, the nature of the property and the surrounding circumstances. In cases where is specifically stipulated that time will be an essence of contract or that it clearly emerges so by way of implication, time would be an essence of contract. Such situations are exception to the well accepted principle that in case of sale of immovable property time is never regarded as essence of contract and presumption existing against the same. However, if the parties intend to make time as essence of contract it must be expressed in unequivocal language. Intention to make time as the essence, if expressed in writing must be in language which is unmistakable; it may also be inferred from nature of the property agreed to be sold, conduct of the parties and surrounding circumstances prevailing the time of the contract. Section 55 of the Contract Act provide for effect of 10 (1977) 2 see 539 MANU/MH/0587/2021 17 failure to perform the contract at a fixed time where time is essential. In cases where the time is the essence of contract and is so stipulated in writing, the extension it any should and ought to be categorical in nature rather then being vague or not contemplate the based on unilateral extension presumption and would ”

Thus, the above mentioned legal position establishes the fact that in the agreements for sale of immovable property, time is generally not considered as essential, unless it is clearly mentioned in unequivocal language.

Reverting hand, undisputedly. Agreement dated

16.12.2006 (Ex.A-l) was executed in favour of the plaintiffs, under which the defendant agreed to sell the schedule property for a total consideration of Rs.66,00,000/- (Rupees Sixty Six Lakhs only) and received an advance amount of Rs. 16,50,000/-. It was further agreed that the plaintiffs would pay the balance sale consideration of Rs.49,50,000/-, within a period of two (2) months from the date of execution of Agreement of Sale i.e., 16.12.2006. In the said Agreement, all that parties agreed to was as follows:-

The remaining amount of Rs.49,50,000/- is to be settled within two months from this date. If you fail to pay the remaining balance sale consideration, then you have to pay the interest at the rate of Rs.1/- per hundred per month on the remaining registered.

consideration

It is evident from a plain reading of Ex.A-1, that it does not contain any clause relating to termination, instead it provides for payment of interest for the 18 period of delay and to get the sale deed registered, which indicates that the parties did not intend time to be the essence of the sale of agreement.

Apropos to argument whether time being the essence of the Agreement of Sale, defendant asserted that he has clearly stated about his intention about time being essence of the contract so he has to pay donation for securing M.B.B.S Seat for his maternal granddaughter, while the plaintiffs on other hand contends that they were not aware of the same.

At this juncture, it is pertinent to note that there was no mention in the Agreement of Sale (Ex.A-1) about the payment of donation fees being the purpose and intention behind the sale of schedule property. Furthermore, the defendant himself admitted during the Cross-Examination that it was not mentioned in Agreement of Sale (Ex.A-1) regarding sale of land in order to secure the money for payment of donation towards the education of his granddaughter. Even assuming the contention of the defendant is true, there was no condition in Ex.A-1 with regard to termination in the event of default in paying the balance sale consideration within the stipulated time, nor any provision for forfeiting the advance amount paid by the plaintiffs.

Therefore, in view of the above discussion, this Court is of the opinion that the time was not the essence of the Agreement of Sale (Ex.A-1) and that the Trial Court has rightly held point No.1 about the same in favour of the plaintiffs and against the defendant. 19 Point No.2:

The second point that arise for consideration is as to whether the plaintiffs were always ready and willing to perform their part of the obligations under Agreement of Sale (Ex.A-1).

In order to obtain a decree for specific performance, plaintiffs must aver and prove that they performed their part of the contract and have always been ready and willing to perform the terms of the contract, which are to be performed by them.

The Hon'ble Supreme Court in the case of N.P. Thirugnanam Vs. R. Jagan Mohan Rao (Dr)^^, while reiterating that the remedy of specific performance is equitable in nature and that granting or refusing specific performance is within the discretion of the court, had the occasion to observe as under;

5. It is settled law that remedy for specific performance is an in the discretion of the court, which equitable remedy and is discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act, 1963 (for short 'the Act’). Under Section 20, the court is not bound to grant the relief just because there was a valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing If the plaintiff fails to either aver or prove the to grant the relief. (1995) 5 see 115 20 same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum 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 the attending circumstances. The court may infer from the facts and circumstarrces whether the plaintiff was ready and was always ready and willing to perform his part of the contract ...

In Sangitha Sinha Vs. Bhawana Bhardwaj and Ors^^ the Apex Court, held as under- “ 2018

16. It is settled law that under the Act, 1963, prior to a Amendment, specific relief. performance In Kamal Kumar the correct meaning of the word “Bayana” is earnest money. This was the meaning adopted in Kanpur I.B.W. and .F In Brown's Telugu- Mills V. Banarsi Das, AIR 1959 All 755. English Dictionary a{ page 66 of the supplement dealing with mixed dialects used in Telugu, the meanings given of the word “Bayana” are ‘earnest money’ ‘handsel!’; advance money. The in Sankaranarayana's All earnest Telugu-English moneys are also advances. It is clear that the use of the word “Bayana” carries with it the meaning that it is a particular type of advance, viz., an earnest money.” a Dictionary. meanings different Coming to the case on hand as stated supra, Ex.A-1 (Agreement of Sale) clearly mentioned the verbatim of bayana. The meaning of bayana defined in the Rabina Bibi Vs. Pulipaka Satyavathi & Ors comes under the realm of earnest money.

The Hon’ble Supreme Court clearly made a distinction between earnest and advance money in Central Bank of India Vs. Shamugavelu^^, as held below:- 1962 see Online AP 31 " 2024 (6) sec 641 33 “

84. The difference between an earnest or deposit and an advance part-payment of price is nov\^ well established in law. Earnest is something given by the promise to the promisor to mark the conclusiveness of the contract. This is quite apart from the price. It may also avail as a part-payment if the contract goes through. But even so it would not lose its character as earnest, if in fact and in truth it was intended as mere evidence of the bargain. An advance is a part to be adjusted at the time of the final payment. If the promise defaults to carry out the contract, he loses the earnest but may recover the part-payment leaving untouched the promisor's right to recover damages. Earnest need not be money but may be some gift or token given. It denotes a thing of value usually a coin of the realm given by the promisor to indicate that the bargain is concluded between them and as tangible proof that he means business ”

Considering the rival contentions made by the respective parties and after going through the relevant documents, more particularly, the recitals made in Ex-A.1 (Agreement of sale) and also above mentioned legal position, it evident that there is no specific forfeiture clause stipulated in the Agreement of Sale, in the event of default by the plaintiffs. In fact, Ex-A.1 reveals that the remaining total sale consideration will be payable by the plaintiffs to the defendant within two months from the date of Ex-A.1 (16.12.2006) and if the same is violated, the defendant will be entitled for interest at the rate of Rs.1/- per hundred per month from the plaintiffs only. 34

The Hon’ble Supreme Court while touching the issue of forfeiture of amount in Satish Batra Vs. Sudhir Rawaf^, has held as under:- "

15. The law is, therefore, clear that to justify the forfeiture of advance money being part of "earnest money" the terms of the contract should be clear and explicit. Earnest money is paid or given at the time when the contract is entered into and, as a pledge for its due performance by the depositor to be forfeited in case of non performance by the depositor. There can be converse situation also that if the seller fails to perform the contract the purchaser can also get double the amount, if it is so stipulated. It is also the law that part-payment of purchase price cannot be forfeited unless it is a guarantee for the due performance of the contract. In other words, if the payment is made only towards part-payment of consideration and not intended as earnest money then the forfeiture clause will not apply "

Keeping in view the recitals (mentioned supra), it is apparent that Ex-A1 does not include forfeiture clause. In fact, it is necessary that the contract must contain a stipulation of a forfeiture clause to invoke the same in specific words. In a nutshell, right to forfeit the amount flows from contractual terms agreed by the both parties in Ex-A.1 only, but not on the choice of one party, If there is no stipulation in the contract for forfeiture of amount, then no such right is automatically available to either party to forfeit the said amount. In other words, a party to the agreement cannot be made accountable to perform something for which, it has not entered into a contract. In fact, it amounts to re-writing of a contract at the instance of one party unilaterally. ?3 (2013) 1 see 345 35

In this context, it is relevant to note the Apex Court dictum held in Suresh Kumar Wadhwa V/s. State of Madhya Pradesh and The relevant para Nos.26 & 27 are reproduced as under:- '■

26. Equally well-settled principle of law relating to contract is that a party to the contract can insist for perfornnance of only those terms/conditions, which are part of the contract. Likewise, a parly to the contract has no right to unilaterally "alter" the terms and conditions of the contract and nor they have a right to "add" any additional terms/conditions in the contract unless both the parlies agree to add/alter any such terms/conditions in the contract.

27. Similarly, it is also a settled law that if any party adds any additional terms/conditions in the contract without the consent of the other contracting party then such addition is not binding on the other party, Similarly, a party, which adds any such term/condition, has no right to insist on the other party to comply with such additional terms/conditions and nor such party has a right to cancel the contract on the ground that the other party has failed to comply with such additional terms/conditions "

In view of the above ratio decidendi laid down by the Apex Court, coupled with the obvious fact that Ex-A.1, does not contain any clause or term of forfeiture at all. In such case, the very action of the defendant forfeiting bayana/earnest money is not legal and valid, herefore, point No.3 is held in favour of the plaintiffs and against the defendant. Result:

Given the aforementioned analysis of the case, coupled with the aid of authoritative legal pronouncements by the Apex Court, we are of the firm opinion that the Trial Court after meticulous analysis of each and every pleading well as the evidence adduced by the respective parties arrived at its 2017 (6) see 757 unequivocal findings and rightly held the 1 issue in favour of the plaintiffs, So far as issu© Nos.2 and 3 are held in favour of the defendant. Thus, we find no infirmity and inherent flavy to set aside the reasoned findings of the Trial Court.

Considering the peculiar facts and circumstances involved in the Ms as also categorical findings arrived at by us, in relation to point No.2 plaintiffs were not able to establish as the the prerequisite fact of readiness willingness aspect, we are confining the relief to refund of amount only, without interest.