The High Court · 2025

Judgment

(Per llon'ble S,nr. Juslice Tintmalrr Deut DqlL,, This is an appeal hled by the appellants b,: rg aggrievecl by tlre judgnrcnt and decree, dated 02. 12.2OO9, pass,r, I in O.S.No.87 of 20O5 by the learncd IV Additional District Jur: sr,.. Ranga Re ddy District (for short "the trial Court").

2. Thr: appcllants hcrein are the defer-rli nts and the respondent herein is thc plaintiff bcfore the triir Court ancl the parties h erein are rcferred to as they were ar. j-i I ed in the suit belore the trial Court for the sake of convenience: r rcl clarity.

3. Tho r'asc of the plaintifl be fore thc trial C: Lrrr is tha1. the defendarrts offered to sell their propcrty to an ( ]:::int of Ac. l4-00 guntas and that the plaintiff has agreed to purr:lL;se the samc for a total sale consideration of Rs.9 1 ,0O,O0O/ -, ou I of rvhich h.: has paid Rs.22 Lakhs i.e. Rs.8 Lakhs was paid b.. r:ash ancl lls.14 Lakhs thrrrugh cheque bearing No.7O2OO2, :l,rted 11.12.2OO3 drawn on SBI, ECIL Branch, Hydcrabad ancl tltilt the balanct: sale consideration of Rs.69 lakhs rvas agrecd to be :rr,d at the tirle of registrat.ion and an agrecment of sale r.l,as draftt;, io that effcct. It 2 AKS,J & ETD,J AS 53 2010 is his case that the terms of agreenrent of sale were that within three months i.e. by 12.O3.2OO4, the ccntract shou.ld be concluded for which the plaintiff shall arrange for balance sale consideration and the defendants shall get thc original documents and link documents and also shall make the survey conducted over the land and give out the correct measurements but thc defendants have failed to do their part of contract i.e. they failed to get the land surveyed and measured aud he also failed to producc the ORC on time and thus, he got issued a notice on

10.03.2004 expressing his readiness and u,illingness and asking the defendants to produce necessary documents and to survey the land without any further delay. The defendants have received the notice and given a reply making all false allcgations and that they would like to execute the sale deed without the land being surveyed and without any documents and then pursuant to the same, the plaintiff has again sent a reply requesting them to make the survey ol the land and that the defendants have made an application for surveying the land and the surveyor has issued a

notice dated 13.O7.2OO4 to the plaintiff and defendants but the defendants failed to be present at the timc of sur-vey. The plaintitf has again given an application dated 1 1.O8.20O4 to the Mandal Revenue Oflicer requesting him to get the survey done and that subsequent to said notice, the defendants have l-rled a caveat 4i? 3 AKS,] & EI ],J AS 53 2410 before the (lourt on 15.03.2004 and that the defrrr'lrrnts pointr:d out that tl-re time is the essence of contract i.c rvitl-rin Lhree months tho contract should be exccuted but in l'ir: r the plainliff has bcen r,:ady and rvilling to get the sale deed e>:,:. r,L(ecl and it is the defendrrnl s rvho did not cooper ate. lt is his l.L :[rer case tlrat the defcnr:lants got a clearance of survcl' N r. ll93 onl), on

06.05.2004 issucd by the RDO under Section 8 r,:rLl with Section l0 of A.P. (Telangana Area) Abolition of Inams Acr. rnd as per 1.he said order, thc dcfendants got the ORC in the mrirr r ol May, 2C04 ancl later on thc defendants have handed over tlr,t copy o[ -he ORC to th,: plaintiff. Thus, the plaintiff stal-es th.rt 'rr: clcfendants have wantonly dclayed the process and that even ,lter obtaining the ORC they failed to come forward for executit-u the salc deed. It is his further case that though lre was ready tr ri u,illing aL all times to get thc sale deed executed, Lhc deft .l,lirlLs farlc<l to perform their parl of contracl and therefore, gettin. vcxed rvith thc attitude ol the defendants. he hled the suit.

4. Thc defendants have hled written staLer (r. r rlenying the a\.erments of plaint. They admitted the execution rrl' agreemct rt of sale and thcy contcnded that the time is the essr r rce of conlract and that it was clearly mentioncd in the agreelr L ,,r.rt of salc that within thre<' months i.e. by 12.03.2O04 thc sall, ricerl has trr be 4 AKS,I & EID,] AS s3 2010 executed on paymcnt of balance sale consideration and that the plaintiff failed to pay the balance sale considcration. It is further contended that they have already given copies of all the relevant documents to the plaintiff and that there were no latches on their part. It is their contention that the plaintiff was noL ready ivith the balance sale consideration and he never came forward for getting the sale dced registcred and that it is only after going through all the documcnts and or.rll' after getting satisfied, that the plaintiff and his wife entcred into agreemcnt of salc with them. They have also admitted the issuance of legal notices and reply notices. IL is their case that lhey have a clear title and that thc plaintiff never dispuled their title over the property u'hilc entering into the agreement of sale and that the plaintiff got issued a public notice in widely circulatcd papers like Ecnadu, Telugu daily news paper calling for the objections if any about his purchase over the suit schedule land and that so far no objcctions have been received in that regard. They further submitted that they never promised to furnish any othcr documents to the plaintiff and they denied the readiness and r,r'illingness of the plaintiff to perform his part of contracl. They furLher contended that due to the change in the Government of the State and that the Telangana agitation was going on, thc plaintift himself requested to reduce the-rate under the changed circumslances and willfully decided to 5 i\K5,J & E]I),J AS 53 2010 drag on the matltcr on one pretext or the other anc ,trtt they ,,r,e:-e always reacly Lo exccute the sale deed. They furl i.r r contendr:d that once Lr're plaintiff approached the police of Vr: r: r.sthalipuram and that tl-re defendants were called to the poli:r station and t,hcn thc clefcr-rdants have cxplained the entire I - r.saction and shown all tree relevant documcnts pertaining to thc .r.he clulc land, the police have examined all the documents an: aclvised tl-re plaintiff to oroceed u,ith the rcgistration but even tlr: . the plai.tilf did n.t corne lo^vard for regislrarion. It is rhei r:tsc th^t the plaintiff has becn requesting lor grant of somc mor( rime and tl:at hc u,as dragging on the matter as he was not I : rd1, rvirh thc balance a.torlnt and has filed a false suit. It is : cir case tl-Lat there is a r;latrse in the agreement of sale that if tlr,. pltintiff dc,es not pay tae balance sale consideration to gct, .l ie sale dced rcgistercd by the stipulated date, the advance i, loLlrrt thal is reccived s-rall be forfeited and that the agreentc of salc g:ts automatictrlly cancelled. lt is their further . irse tltat r.he dclendants intended to purchase a Mango garden i tcl agncuitural lar-rd of o:re Polangari Anji Reddy @Rs.6 Lakhs pcr acre and entcred into an agreement to an extent of Ac.1O_r).) gts., ancl to pttrchase th<' above said lands, they paid an irr cunt of Rs.25 Lakhs out of thc to[al consideration of Rs.60 Lakhs, r,,n 25.01.2O04 ancl that the'hzrvc agreed to pay the balance salt: ..nsideratio, of 6 AKs,J & ETD,] AS 53 2010 Rs.35 Lakhs within four monLhs from thc date of agreement i,e. on or before 24.O5.2OO4 and that due to the plaintifls stepping back on his part of contraci, they failed lo procced with the said deal and that they could not complete their contract entered rvitl-r P.Anji Reddy and thus lost a total amount of Rs.25 Lakhs and the said loss is only due to the plaintiffs failure to pay thc balance sale consideration on time. Thus, their contention is that they were always ready and willing to perform their part of conLract and that it was plaintifl's failure for non-execution o[ sale deed and since time is the essence of contract, thc suit filed by the plaintiff is not maintainablc and thus, prayed to dismiss the same.

5. Based on the above plcadings, the trial Court has framed the foliowing issues: "1) Whether the performance tl.t2.2003? plaintitf is entitled o f agree men t of specific 2\ and if so, whethcr the plaintiff is entitled to the relief of recovery of possession of suit schedule property? 3) Whether time is the essence of contract? 4l Whether there is no cause of action for the plaintifP 5) To what relief?" l AKS,I & El I),J AS 53 2010

6. At th,: Lime of trial, the plaintiff got examint:c rW 1 and g:t marked Ex:;.A L to A12. On behalf of the defendant s. i)Ws I ancl )- nrerc examinecl and trxs.B1 to B20 were marked. [Jased on tl-re evidence or, rccord, the trial Court has decreed the s I L for speci:'ic performancc. Aggrieved by the said judgment i:niL decree, l te present apltea I is preferred by the dclendants.

7. Heard the submissions of Sri Vedula Venkzrt Ramana a:rd Sri J.Prabhzrkar, learned Senior Counsel represenIi, r.1 Sri Koppula Gopal, lea:-ned counsel for the appellants and Sr- \,t.V.S.Surr:sh Kumar, l:arned Senior Counsel representinq Sri Arav:rla Srcenivasa Rao, learned counsel for the respondertr

8. Thc lcarned appellants counsel has subnrr.tccl that t.he plaintitf has not issued any Iegal notice prior to filirr.l the suit i;nd that hc kr:pt silent even after getting the ORC cer ijicate in May, 2004, white the suit is filed in April, 20O5. He fui-tlL::r argued r nat tirne is the essence o[ contract as per the agreern,]i)t of sale zrnd lhus, the plaintiff should not have caused any :. :lay in making arrangem,lnts for ba-lance sale consideration. H,: lurther argrrecl that the ltlatntiff was never ready with the bala: ;:: amounL irnd ncver expresscd his readine ss to get the salc dec rl r.c.gistered rtnd the plainl iff was going on postponing the same ()r one pretext or the'other. I Ie furthcr argued that the plaintiff hi s, in\.cntcd :)cw 8 AI(S,J & tTD,J A5 53 2010 reasons i.e. asking for the documents establishing the marketing title of the defendants and measuring the land and thus, on the said reasons he was postponing the event, however, the defendants have stated through their reply nolice that they were always ready to perform their part o[ contract. He further argued that only aftcr getting satished with the title of the defendants that the plaintiff and his wife got entered into the agreement of salc and thus, the question of proving their title through link documents or any other certificates is not at all nccessary to givc effect to the agreement of sale and get the sale deed registered. He submitted that unnecessarily the plaintiff got postponed the execution of sale deed as he could not arrange the balancc sale consideration and the inaction of the plaintiff is clcar as he lailed to come forward for registration even after rcceiving the ORC from the defendants in May, 2004. He further argued that thc trial Court ought to have seen all these aspects while appreciating the evidence and that the trial Court has committed an error in decreeing the suit. He further argued that the failure to comply with the notice under Form 47 and 48 of Appendix-A of CPC also non suits the plaintiff because they are the mandatory notices to be served on the defendants prior to hling of the suit. 9 AKS,J & ITD,J A5 53 ;1010

9. Thc learned counsel for the respondent, on rc other hand, has subrrLittcd that there is a clause in the aglr':cmcnt of s,ale stating that lhe defendants shall produce all thr: 'itle documr:nts and link,locumcnts and also shall get the lzrnd :;rLrveyed to 13ive the mcas-rrcments of the tand, so that if any dis,;'cpancy in the mcasurerlents arises, then the balance sale con s;'deration would be paid accordingly. Therefore, it mandates the actior of delendants to provide all the necessary title do,:r rments and the link doctrmr:nts and also to get the land sure)',:t, ancl measured to cnablc thc plaintiff to pay the balance rnount of salc considerrrtion. He thus argued that when the dc1(.ndants faik:d to come [onvirrd for measuring the land or Irrr productiot-r of documerrts. then [here was no occasion for tlrr plaintilf to get rcady with lhe balance sale consideration. He ftrrthcr zri'gued that. thc plaintifi could prove before the tria,l Court thrL. hc u,as always ready and u'illing and that he had the necessarl' lunds as or-r the date mc ntioned in the agreement of sale i.e. 111 . .)3.2OO4, to pay thc bal;lncc salc consideration. Thus, his r:r:ntention is that though thc plaintiff was ready with the balance srrlc consideration, it u,as the defendant who did not come fonr.:rrd rn.ith thr: title decds and fbr measuring the land and that is tlr: rezrson for non- cxccuti()n of the sale deed in time. Thereforc, Itis agreem,:nt of sale ca.nnot be cancellecl unilaterally by thr: rlefendants. He i ! 10 AKS,] & EID,] AS 53 2010 further submitted that he has paid Rs.21 Lakhs towards advance sale consideration in the year 2003 and also that pursuant to the decree he has deposited the balance sale consideration of Rs.69 Lakhs into the account of thc Court.

10. Based on the above rival submissions, this Court frames the following points for consideration: 1) 2l 3) 4) Whether time is the essence dated 1I.1,2.2OO3? of agreement o[ sale Whether the plaintiff was ready and willing to pcrlorm his part of contract? Whether the plaintiff is entitled performance of the agreement of rr.t2.2003? specific Whether the judgment and decrec of the trial court is sustainable in law and under the facLs? 5) To what relieP

11. POINT NOs.1 AND 2 a) The contention of the defendants is that time is the essence of contract and since the plaintiff failed to comply with the terms and conditions within time i.e. when the plaintiff could not pay the balance sale consideration within the stipulated pcriod of three months, his agreement of sale gets automatically cancelled and the amount paid by him shall be forfeited as per Clause-13 of the agreement without any notice. The contention of the .-../ 11 AKS,j & ETi),1 as 53 20 -0 plaintilf is that u.ith regard to immovable properti,:. time cannot be hcld to lre t he csse nce of contract even though .t ; s mentionr d as a claus .) i n thc agreement of sale and that r tore were rro latchcs on his part and the delay occurredjust dur: :: the conduct of thc delendants by not handing over the title der,-:rl; ancl by nrt getting the latrd surveyed, thus he could not pl..r](.ecl with the palrme nL o:- brrlance sale consideration and that , Ie is not the essence of ,he prcsent agreemcnt of sale. b) Ex.A1 rs Lhc agreement of sale. A perus,I ol' thc said document revcals I hat it is executed on I l.l2.2OO. , ancl that rhe purchaser i.c the plaintifl herein has paid Rs.21 Lr,Lkhs to$,ards advance sale consideration. It is mentioned at Cl r_rse No.4 tlLat the purchasr:r shall get the registration done on or beforc 12.03.200.+ l;y paying all thc balance sale considr:r zrriorr ol Rs.69 Lakhs on or bcforc thc said datc and that time ir; thc essencr: of contrirct. At ClaLrsc-13 it is clearly mcntioned tha. ,rhe purchaser shall pay rhr: balance sale consideration within thr.r. er s16n11-r" 1r.r- datc of agrecment i.e. 11.12.2OO3 and in case of lris lirilure ihe amount pairl herewith tourards advance is fort:ited and [he agrcemenl is cleemed to be cancelled, without a: z notice,,. .lhe payment of advancc sale consideration is not in tli: pute, howevcr, Ex.A2 prcves the samc. 12 AKS,J & EID,J A5 53 2010 c) PWl stated in his evidence that the entire suit schedule property is surrounded by fencing but has added that to his knon'lcdge, property of some others is there in the entirc propcrt)' covered by fencing and also that a parl of thc road and part of the big drain (vagu) were also included in that property. He has not stated the said fact either in his legal notice, pleadings or in his chief affidavit. But he has given this statement for the first timc during his cross examination. It is clicited from him lhat he has not paid the balance sale consideration or any part of the sale consideration as per the terms of agreement but that he had t<-l pay the said amount at the time of registration and that the sale dced was noL registered as the defendants have not performed their part of contract. It is further elicited from him that he does not know whether Ac. 14-00 guntas of land is existing on lhc ground as pcr Ex.A1. d) The record discloses that the plaintiff got issued a legal notice on 26.02.2004 under Ex.A3 expressing his readiness to pay the balance sale consideration and reminded the defendants about their contractual obligation that they have to produce occupancy certihcate for survey No.293, the original link documents bearing Nos.42O of 1985 and 1171 of 1978, 5O3 ol 1985 and 598 of 1984, the original cist receipts tou'ards the 13 AKS,J & ETt),] AS 53 20 t0 schedule land upto date and other revenue records lrs indicated n the legal s(]rutiny rcport. It is the case of the pl: intifT that he obtained a lcgal opinion and on obtaining the srrne, he got to knon, that tht: suit schedule properties are "Dast,r r.)arda" lan,ls which are gor.crnccl b1, Andhra Pradesh (Telanganir Arca) Inarns Abolition Act and therefore, hc requested for pro:uction of all these documents. It is further mentionecl in the szLid noticc/Ex.A3 that the defendants have produccrl the ORC lor survcy No.28.l l;ut failcd to produce thc same for :jr.No.293 at the timc of enLerrng into agreement of sale and has lail:d Lo produce thc link dtctrments and also that thc dcfendanL-. ravc agreed to produce the same, that the defendants have infor';-r.r:d the plain tiff thaL they J'raie applicd for ORC on 26.O2.2OO4 ancl ,rnless the said documer-rts arc produccd, the sale transacti: I r czrnnot be completeo, therefore he requested the defer-rdan t s; l_o arrange for the abovc: srrid documents at the earliest, so Li:i to enable the plair-rtiff to complcte thc transaction. Thus, the rntention of the plaintiff is clcarly made out from the legrrJ notice dzited

26.O2.2OO4, u,hich is much ahead to the stiprrLatcd date i.e. l2.O3.2Ot)4, u,ithin rvhich thc contract had to be r::,ncludcd. .).. A suggcstion was givcn by the plaintiff s co rr rrsel saying that the-deferrclants are not in cus[ody of original tir : clecds of l.heir 14 AKS,J & ETD,J AS 53 2010 respective vendors, which was denied by DWl. This suggestion shows that the plaintiff was doubting the clcar title of the defendants f) The defendants have issued a reply notice, dated O8.03.2OO4 under Ex.A4 pointing out that the plaintilf never came forward to get the sale deed executed and also that they have already given Xerox copies of all the relevant documents to the plaintiff prior to the initia[ paymcnt and before entering intcr agrecmcnt of sale and that they have never agreed or promised to obtain the documents mentioned by the plaintiff and they furthcr mentioned that they are ready to execute the sale deed without any further delay on payment of balance sale consideration. They have also expressed their difficulty saying that they have already paid the advancc sale consideration to purchase a poultry farm and since they could not pay the remaining sale consideration due to the default committed by the plaintiff in paying the balance sale consideration, they have lost the amount that is paid as an advance sale consideraLion towards the purchase of poultry farm, and that they suffered damages due to the attitude of the plaintiff herein. 15 AKS,] & EI),J AS 53 2C10 g) DW1 has admitted that as per Clause-ll of a1rrr. ment of sale they have to handovcr all the original title deeds tr: he plaintilf at the time 01 registralion of salc deed and that thev iritvc to get rrll [he mcasurenrents of the suit propcrty done to ]<ntrrv the exe.ct meaSLlrem(lntS h) It is ftrrther disclosed from Ex.AS that '.1 : plaintiff 11ot issued a telegram notice on 10.03.20O4 agr, i.r asking the defenclants; to come lorward lor execution of sa]r' rlced and LL:rs rcquestcd to producc the documenLs and th r without r_he documents the delendants cannol force him t( get the land registered Hc further menLioned in thc said notic. rhaL ORC has to be obtained and that since it is not obtained by Iltc dcfendants, the defen<lants have to producc thc documents .,:. ,-stablish their marketab e title and has asked the defendants , come fonvard with all the relevant documents to sub-regis,t r-,rr's ofhce on

11.03.2O()4 and that he is ready with the irmaining sale consideration. F ollori,ing the said notice, thc pli rrtitl got fiterd a caveat pelition dated 15.03.2004 under Ex.A6. i) Though PW I stated that he intende d r.c purchase the property for his daughter and hled the bank s ;rtement of his daughter sho is an NRI, there is no such r,:ierence in lhe agrL'ement of sale under Ex.A 1 , or in the legal I otice or in his 15 AKS,J & ETD,J AS 53 2010 pleadings and the said facL is admitted by him in the cross examination. He further stated that he has not sent the balancc sale cor-rsideration to the defendants either by way of money order, cheque or Demand Draft. j) The plaintiff has hled the bank statements under Exs.A9 to A 12 pertaining to his wife, his daughter and himself showing altogether Rs. 10,3O,565/ in the name of his wife as on 1 1.03.2004, so also the statemcnt of account of his daughter from 15.12.2OO3 to 1O.03.2OO4 shows that the balance as on 1O.03.2OO4 is Rs.45,77,034 /- arrd the account of plaintiff of ING Vysya Bank discloses that the statement is given from 01.02.2004 to 10.03.2004 and by the said date the closing balance of his account was Rs.S,13,774/-. Thus the case of the plaintiff is that he had all the necessary funds by lhe date of conclusion of agreemcnt i.e. before 12.O3.2OO4 he was ready with the balance sale considcration to be paid to the defendants. It is clear from the evidencc put forth by the plaintiff that he was ready with the balance sale consideration but he required certain documents pertaining to thc suit schedule property and according to him the survey had to be conducted and measurements are to be made. [t is one of the Clauses mentioned in the agreement of sale that the AKS,I & E to,l AS 53 1010 defendants shall get i[ measured and shall produ(](. l-he necessary documcnts. k) DW 1 de nied the suggestion that they mad. i:n "rpplication to MRO Ibrahimpatnam for measuring the s,,t t property on

22.Ol.2OC'4 but stated thaL the plaintiff has rr,ade the said application. He denied to have received any notir;. with regarrl to the survc y 1() be conduc tcd on 17 .O7 .2OO4. I)\^/ I srated l.hat through Mandal Surveyor of Ibrahimpatnam, Lf I property $'as mcasurecl within thc stipulatcd time but he doc: not remenrber thc said date. The ciefendants have not filcd a. ,/ documents in support of thc said state ment shou,ing that the ,:; Lnchi,rnama ,,1'as conducted. DW 1 further stated that the 1,-:r rrchanama was available with him but he would file it if neccss.rry and that he has hanr-ledover surveyor report along with the r:()verillg lettr:r to Lhe plair tiff. But there is no proof filed in the Corrr-t to believr: the said version. It is elicited lrom him that to ttc south o_' the properLy a5lrecd to be sold there is a nala existir z and he further admittecl tl-rat they raisecl thc fencing abutlir Ll the road and denied the suggestion that the road is only 25 li:: r. width anc that it had tc, bt' 60 feet. l) TJre document under Ex.A7, dated 11.()!,.2004 dis<:loses that thc, plaintiff has madc an application to tlte: MRO to co.llduct ...-- 18 AKS,] & ETD,] as 53 2010 survey in the suit schedule property and to dcmarcate the boundaries. The recitals of Ex.A7 further show that the defendants have made an application on 22.07.2004 to the surveyor anci that the surveyor has issued a notice to both the parties to be pre scnt at the suit schedule property on 17 .07 .2OO4 but the defendants failed to be present at the suit scl-redule lar-rd and that he along with other parties who rcceived notice lvere present at the land and waited till 04.30 PM but the defendants failed to turn up, thus, hc requested the MRO to conduct the survey. m) Ex.A8 is the ORC dated 06.05.2004 showing that it is issued in favour of the defendants herein over the suit schedule property. It is elicited from DW 1 that as per the legal scrutiny report dated 26.02.2OO4, the defendants are not having marketable title. DW1 admitted that the plaintiff has given them a copy of legal opinion obtaincd b), him and that according to the said legal opinion the plaintiff was advised to take the original titie deed and he further admitted that they have taken the ORC in relation to the propertlr covered under survey No.283 but they have not given ORC in relation to survey No.293 to plaintiff. He further admitted that the RDO issued the ORC in relation to survey No.293 in the month of May,2OO4 and that he has paid 19 AK5,J & ETI),] AS 53 20 r0 the prcmium for the issuance of said certilicate r t 27 .4.2OO4. Thus, rt is ,:licited from the defendants that they ttr: rnselvcs ha.,,e delayecl the pzryment ol premium to obtain ORC llr r mciins thly did r-rot evincc anl, intcrest in obtaining the ()Fl(' s'ithin tl're stipulated pcriod i.e. s'ithin 12.03.2004 and it is I rrther elicil:d lrom him that he has given the ORC to the plaintill irs soon as he has oblained the same from the MRO. That mearr, Lhe ORC was obtained by him in thc month o[ May and subse(]u(.r-rt to that hc has given lht: ORC to tlre plaintiff with regard to sr, r'r()\, No.293. o) A suggt'stion is given to DW1 that since thr: ( ltC rs given by him in tht: Monlh of July, 2004, both the partic:; lrav(, cxtcn(led the time nrutu:rlly for registration of sale deed. 'I': )ugir DW I has denied th<: szrid suggestion, it is clear from tl're evirle ncc on reclrd that ORC o1 Sy.No.293 was obtaincd by the clr irndrrnr in thc month of May, 2O0 4 and that he has handedovclhe same to thc p.laintifl in July, 2O04. Thus, they havc made a:l ,,rpplication for issuance of ORC only in May,2OO4 which is far I r:yond the time stipulateci in thc contract. Thc lcarned counsci l,- I ;-he rcsponclcnt has relierl upon a decision of the Apex Court in Chand Ran-i o. Kamal Rcrnir, wherein the Apex Court has hclct tlrrt e i,cn thr;ugh a conditi.tn is stipulated in the agree me nt of s:rl. \4'ith rcgard to Q93) l Surrrenrc Court Cases 519 20 AKS,J & ETD,] AS 53 2010 the time being the essence of contract, it is a settled law, that in cases of immovable property, time is not the essence of contract. In the present case, from thc conduct of parties it can be safely concluded that time is not the essence of contract. Though a condition was stipulated in the contract both of them havc proved by their conduct that they wanLed to get the agreement of sale into effect even beyond the time specified in the agreement of sale. Thus, this Court holds that time is not the essencc of contract. p) The learncd counsel for thc appcllants has relicd upon a decision of the Apex Court in Padmakumari v. Dasayyan2, wherein the defendants were supposed to measurc the suit schedule property and the plaintiff was supposed to pay the balance sale consideration within ninc months. It \.as held that the payment of balance sale consideration of Rs.63,OOO/- within ninc months would have ariscn after thc tcrms and conditions o[ the contract agreed upon by the dcfendants 1 to l1 were fulhlled by measuring the suit schedule property. They have not discharged their part of contract stipulated in the agreement of sale, therefore, it is urged that time u'as not the essence of contract, as they themsclves have failed to perform their part of agreement. In the said casc, thc triai Court has passed a decree ' (zors) g scc ess 21 AKS,] IL ETD,J AS 5:2010 ol syrr:cific pcrformance in lavour of the plaintiff zL ,l tlte same was conllrnrcC 1r.,, tlrc lligl'r Court bul- ,,l,hereas th(' \ pc\ Court has ' the plainr.iff in disnrissccl tirc suit obsr:rving Lhat the averme nts r, the plairLt zrc no[ strictl], in conlormity with tltr. ()rrler 6 Rule 3 CPC anrl |iorrn 47 of Appendix A and that th,: :,laintil'f ha:; not sho\\'n r,r:tdlness and wiLlingness which is the cor rlition prcc<:dent ers rt'qur:r:d r-rnder Scction l6(c) of the Specific R,.li.rf Act. q) 'l'hc krarncd counsel lor thc appcllar,l: rclic<l upi)n a clccision c,I the Apex Court in Manjunath Anandappa v. Tammanasa3, r,r.hercin it was held Lhat'The pk;rtttiJf did not plead eitlu'r h ,. llte plairt or at atllJ subsequetTt stage tt',, tt lrc: utcLs ,eadA arrc1 ruill tq lo perfonn the agreement and that t strit for specific perJortnan,-.e has to conJ omt to the requiren:,r Lls l)/?scribed in L'onrts '17 , urcl 48 ol the 1,, Schedule it the Ciuii. , t oce(lure Cc,cle. ht a suit 1br spr:cific perfonnatrce it is incumbettt o' tlLt: plaiiiff rtot oi?ly to -s(, r (-)ut agreemetll ott the basis of whrL:l lrc.sues in all ils dcaoil-s, h(' niu.sl go futther ctnd plead that he I cts tLltplied to the daferLdant specifica y to perform the agreement 1.l=acled bg him but tlte cle.terttlarLt has not done. so. It was fL., -, 'ter helcl that the readiru:ss cuuT wtllitgness has lo be determineo ,i.orn the enttretg of ' arqzoO'r Sc, t:g r

2.2 A(5,]&E1D,J AS 5l 2010 facts ond circumstances reteuant to tlrc intention and conduct of the portg concemed' r) In lhe said case, the trial judge has dismissecl thc suit holding that the plaintiff l-ras not avcrred readitless and willingness to perform his part of conlract in thc plainL and thus, he is not entitled to a decree for specific performance ol conlract. The firsl appellate Court has conlirmcd thc said findings. [n the second appeal, the High Court has rct'crscrl thc said iindirrgs and granted specihc pcrformancc. But thc Altcx Court obscrvccl that a pleading wrth regard to thc rcadiness and s'illingrrcss bv itscll is not sufficient but it also has to be proved to hold that the appellants were ready and willing in term of Scction 1(r(<:) ol the Specihc Relief Act and thus, has allou,ed thc appcal aud has sct aside the judgment of High court. s) The learned counsel lor thc appcllants relicd upon a decision of the Apex Court in P.Ravindranath v. Sasikalaa, u,herein thc Apex Court has ht:l<i that the rcadin<:ss and willingness has to be pleaded and provcd by thc plaintilf in a suit for specific performarce of contract. A pcrson who fails Lo ilver and prove that he has performed or has always bccn rcad)'and wtlfing to perform the essential terms of thc contract which ilre to o lzoza 1s1nro raz 1sc1 23 Al(s,i & ,lD,j A5 53 2010 be perfornecl by him is barrcd from claiming specilir; performance and that -he plaintiff has to provc that all along a : d till the fi nai decision c,f tirc suit, he was ready and willing to p :r'form the part of the contritr:t. With the said observations, thc r r1;ex Court has held that the decree of specilic performance was r )1_ \r'arrante,l in the prescnt case and ought to have been denied a,rd the suit was liable to bc dismissed. Therefore, the appr:,,.1 was allowed d ismissi n g thc suit. 0 Wil.h legard to readiness and willingness, Lt',t plaintiff ir- the present <,ast: has fileci the bank accounts of hints, tlf, his wife and l'ris claugrtcr under Exs.A9 to A12 to prove that il: w,as rcacly rvith the balarrcc sale consideration prior to 12.03.20'. .1. It is fur-thcr elicited fronr DW1 that they received the telegrarrL on 1 1.03.:2004 at O5.OO PN,l, and thal is the reason they coulci r<>t attend before the registrzrr ofhce on 1 1.03.2004 but that th( .r wcre reacly Lo execute thc salc decd and lx another date itncl that the\r are equ rppe<I u'ith all the documents and he stator that they have issucd r,:plv notice to the said telegram notice. u) TtLus, it is clear from the evidence on rco t.d that both the parties ir-rlcnded to give effect to the agreell nt of sale cvcn be,yond M:rrch, 2O04 through their conduct i:. the ORC was obtaine(l bv the delendant in May and halci:dover it l,t the 24 A(5,] & ETD,I AS 53 2010 plaintiff in July, 2OO4. It is further shown that the plaintiff has made an application to the MRO on 11.08.2004 to conduct survey in the suit schedule property, thus, till August, even the plaintiff has shown interest in going forward with the contract. From then and till the date of filing the suit i.e. Ltll 27.04.2005 i.e. for a period of eight months, there are no efforts shown by the plaintiff in furtherance of agreement of sale. It is for the plaintiff to prove that he was always ready and witling to perform his part of contract, he has made an application on 1 1.08.2OO4 to the surveyor but the subscquent course of cvents follos.ing tl're said application are not explained by the plaintiff. It is also not knou,n whether the plaintiff has again approached the defendants after 1LO8.2004 and prior to filing thc suit. He has not issued evcn a legal notice prior to Iiling the suit cxpressing that he is ready with the balance sale consideration and the defendants were asked to execute the sale deed. In the absence of any proof it cannot be held that the plaintifl was ready even after 1 1.O8.2004 till the date of suit i.e. 29.O4.2OO5 to get the sale deed executed. It is also his case that he knows pretty well that on 15.03.2004, a caveat was filed by the defendants, inspite of which, he has not taken any steps to ask the defendants to execute the sale deed expressing his readiness and willingness. 25 AKS,] 8 ETD,] AS 53 2010 v) Thr: Ieanred counsel for the appellanLs -elicd upon a decisicrn of rhc Apcx CourL in Nirmo.la Anand us. Advent Corporation (Pl Ltd. and Ors.s, the Apex Court lreLs hcld tha.- the grotll oJ''1e(ree of specific ltetJ'onnance lies h tht' :liscretion o-f the cot.ttl cutrl it i.s olso Lltell settlecl fhal it is rtot ct[tt,, l/s tlecessa1J to grant sp(ci|lc perfomtantce sinply for the reason thrLt it is legal |o do u,) 'l'bc l( antcd counscl lbr thc appeltants fur., cr reliecl uF,on a der:ision ol thc Apr:x CourL in R.Iiandasamg u. T,R.K. Sarauathga. i1 u,as hcld that where the rr.-dor unilatt:raLly canr:cls rn itqrcenrent o1' salc, the vendee u,ho s seel<rng sltccific perforrnar-rcc of such rlgreetnenL ought to seek cl_-,: aratory relief tcr thc cl'fcr:t thar the canccllalion is bad and no. bincling on thc vcndcc, this is Lrecarusc arr agrccment, which I:lr. bcer.r canr:ellecl u,orrld b:: r(rndercd non-cxistcnt in the cye o[ larr trncl such a non- existcnt arlrccmcnt could not possibly be el-.l,rrcecl bclor,: the Courl c I' l:ru,. In the prcsenl casc also, th., apltellants havc exprcss(ld in their replv notice that agrec;.lc nt ol sal,: got lernriniltccl automatically on the expiry ol th, stipulatecl timc pcriocl ol tlile c rnonLlts, but rlrt' plaintiff in thr: , r rit lailecl tc, scek anv rcli:l'rLs against the serme . '(2002) 8 SCC 146 1:ou 11 I scc L:: u 26 AK5,] & ETD,] A5 53 2010 x) Thc lcarncd counsel for the appellants has also reliecl upon a decision of the Apex Court in Chennadi Jalapathi Reddy v. Baddam Pratapa Reddy?, it u,as hcld that the hling of :r suit lor specific performance of an agreetnent ol sale is govcrnccl by Scction l6(c) of the Specific Relief Act, i963, read rt'itl-r Articlc 54 of the Schedule of the Limitation Act, 1963 and that liortus 47 and 48 of thc Appcndix A ol the Code o[ Civil Proccclurt:, ] 9O8 prescr.ibc the format of the ltlainL for such a suit. Thus, a plerint Lo scek the rclicf of specihc perforrnance of an agrcetnclll ll)ust comply with alI these requircincnLs. In tl're prcserlL (]asc, tlle plaintiff has nol issued notice prior lo hling thc suit and has not complied with the statutory requirement of Forms 47 ar-rd '18 of CPC. y) Thc learned respondent cout'rscl relied upon a dccisrorl o[ the Apex Court in R.Lakshmikantham a. Deaarajis. [n thc said casc, thc plaintiff's readincss and rvillirlgness was provr:cl 1l the fact that he has necessary funds as on the date of the agrt:crnent and thcreafter as uras stated by him in his lcttcr datcd

18.12.2OO2. This being the case, lhe trial Court ordered spccilic performance as the balancc sale consideration has alreacfi' becn dcposited into the Court on the date of filing of the suit- 'l'hc ltrst '1zors1 ra scc z;o ' 1zots1 8 scc sz ).1 AKS,] & ITD,] AS 53 2010 appcal filed lrr. t-he defendanr $/as dismissed b., r he prl_Distrjct Judgc. -.'hc n tlte matter rcacLrcd the High Corr t ald Lhc }{igh Cour-t. ltas r errcrscd th(' coltcrlrrcltt lindings o1' ll'r, Courts b,:lour and l.rirs drsnrissed the suit holding that on:. c:onstruction of agrecmerrt oltllr thrce rnonths u,as given lo c:-rrrrplcte the sale transat:Li:;n aud that tirne was thc essence of cor.rrr.:rct. WherL the matlcr r( achccl the Apex Court, iL has held that l lre High CotLrt is not corroct |t stating Lhat readrness and rvillirr,ncss cannc,t be ir-rfr:r'r crl rs LIt() IcLrcrs rlarccl 1E. l2.2OO2 and ll). ) ..2OO2 urcro not scnL r() ll)e rlitlc'trd:rnt a.d also tlrat Llte IIigh CoLiLt l.r:rs committcd an cTror in holding that clcspite having the ne.(. jsan/ funds, the plaintill cotrld not be said to bc ready and q,illin,:. Thus, the Apex Corrrt lrrrs alkxvcd thc :rppcal se rling aside tht: judgrnent of the High OOur t irn(l restorccl rhc decrec of spr:r Iicr pcrforrrrance grantccl b1, rhr: trial Court. In the present cas(j ihe ltlaintiff has not cxprcssod his readincss or nillingncss after I L.Og.2OO4 till the datc ol filing suit ancl tlte bulance sale c( nsicleration wzrs depositr d irrLo the Court ilftcr thc decrec u,as 1>. ssecl. Thur;, lhe facts ar.cl circumstances of Lhc citcd decision rl:lcr fiom that of thc prcs,ent: casc, hence, Lhe same cannol be ap..;.il:d. 28 AKS,] & ETD,] AS 53 2010 The learned counsel for the rcspondent has also rcliccl upon a dccision ol the Apex Court in Gaddipati Diuiia u. Pathuri Samrajgame. In the said casc, the trial Court has hclcl that the plaintiff failcd to prove tha[ hc is entitled lor specific pcrfortn:rncc of contract and thus, the suit was parL[5' decreed holding thzrt thc plaintitf is enLitted to refund of Lhe advance amount of Rs.4 l,akhs and the relief of specific performance n'as denied. In thc appeal, thc High CourL has dccrecd the suit for specihc performatlct: by holding that the dcceased Ci.Vcnugopala Rao and his lcgal heirs failcd to pcrlorm tl-reir obligariotr ri iLh rcgard Lo gcttilrg rllc property mcasured and demarcatcd r'vhilc the respondent \\'as always ready and willing to perform her part of contract bv pa-ving the balance sale consideraLion. 'lhc l{igh Court noLcd th,rt a specil-rc plea rvas taken b5'the plaintiff in hcr plaint that shr: r'r'rls reacly and rvilling to perlorm hcr part of contract PWt has testified to the eflect and that they u'ere rcady u'ith regard to the payment of balance salc consideration and the dcfendatrl has ttot challenged the said part of Lhe evicle nce with regard l'o t he plaintifls readiness and willingness. 'I'hus, the High Court hzrs drawn an inference that the dcfenclants havc admittcd the readincss and willingness of the plaintiff and has allowcd the appiral granting specific performattce. With the abovc said '3 2023 SCC Online SC 442 79 AK5,] & ITD,J A5 53 r010 obscrvalion, thc Apcx Court has dismissed ttr appeals zurd confirrncd the judgnlcnt passt:d by thc I{igh Cor,r r. Ilut in the present c:Lse. thc dcfendants have been challenejlt. thr: aspecL of readincss ancl rvrllingness. Scveral suggestions u.:rt: posed dur.ing the closs cxiirrni niitiol'l ol PW I u,iLh regard to hi: r-cadiness ,tnd willingnes.s. 'lhcrcfore, thc sarcl cited decision crr llot bc applied [o t]rc ca-se on ltarnd. aa) [n ir s1;e crf ic pcrlorrnancc suit, thc plaintiff lr : s to prove that he r'r ns allva.ys rcardy irnd urilling to perform his prrr t of contracl, so that a rclicl in his favour czrn bc grantcd. [n r trr ltresent :ase though t mr is not the esscnce o[ contract, it hrr: [o bc cxecuted u,ithin a re:rsonable period of time . A reasonalt.: pcriod of time shall bc cuilcd ou[ frorn the conduct of thc par.L :s lo the lis. [n this casc, tltc c,.duct o1'thc pl.i,tiff [a'our.ccl I t. ft-rrthcra.ce of contlacL till I 1.08.2004 as he applied [or :r ]rting thc latld measurcd. Sultse qucnr to the szrid date, therr: ru.c rto clfor[s by the plaintilf to shou, that I'rc is rcady ancl rvillrn_: to perforrn his part o1' ,jont ract. The plaintiff has further faii..r i to comply. with the marclatorl' requircmcnts of l.orm 4T and 4g n:rtices to br: sen[ to thc dcfenrlants prior to Iiling ol thc suit. Thtr rigecment of sale was cnterccl in 2OO3 on payment of aclvanco s;lt consideration of Rs.2 I I akhs, u.hile thc suit js litcd in Aprii, :t . ()5. Though the 30 AKs,] & ETD,J AS 5J 2010 plaintiff could prove that he was rcady ancl u,illir-rg u,ith the necessary balance sale considcration as on 12.O3.2004, he failed to show the samc as on the date ol filing of thc suit. 'l'hus, it is held that the plaintiff was noL rcadv and u'illing to pcrlbrnr his part o[ contract by gctting ready q,ith the balancc sale consideration after Augusi, 2004 till the date of filing sr-rit i.e. April, 2O05. The agreement of sale mcntions that the defendzrnts arc the title holdcrs ol the suit schedule propcrty har/ing purchased lhe same under regislered sale deeds vidc 2t124 of 1,995, 2423 of 1995 arLd 2422 of i995, datcd 2O.09. i995. llut the plaintifls counsel has given a suggcstion to DW'l saying that thcy did not. possess the original sale decds of their ve ndors. 'l'hus, again a doubf is raised by thc plaintifi on thc title of the vcndors of defendar-rts. This suggestirrn oi1'qr risc to an infercnce tlrat the plaintiff entertaincd a doubt on thc clcar title of thc defcndants and also as to the extcnt of Land i.e- available for rcgistration and therefore, could not move foru,ard rr ith the contracl. Evcn as on

10.03.2004, thc Iand was not mcasurcd and the titlc dccds of dcfendants were not handcdover to the plaintiff as pcr the telegram notice acldresscd b1. hin-r unclcr Ex.AS. But hc exprcsscd his willingness to gct t1.)c propcrt.v rcgistcred and askccl the dcfcndants to come lorward to the rcgistration officc on

11.O3.2O04 rvith all the rclevant documents. It is a fact that the 31 ,iK5,l & i.TD,l A5 53 2010 land ,,r'as -rot mcasured ancl it is his orvn applicali(, r made to the MRO on I 1.08.2004 asking l-rim to survey the larrr u,hrch further dis<:krses lrar t till Augus( , ,OO4 , thc land u,as nor s ] r-vcvccl. T]r us, thc intc'ntion o[ the plaintilf cvcn it'r Augllst, ')00]! .-, clt,,ar that he wantcd to g('t lhc lancl rnt-irslrr,,d prior to rnclr, inq ], rvlrrcl u,jth the contr:rct. Tlrcrelore, it is rcr.caled from the concii_ i._ of tlte plai tttlf tl-raL he v,.a-s tloL totally contideltl to go ahead r,, r ir t hc conLract unlcss the Iar-rd rs mcasurcd. What triut. l)irccl l;ctrveen 1 1.08.20()4 till 29.04.2005 i.e. the date oi liling r ' rl-rt. suiL ai his crld is not knou,n. Flencc, tl-rc Iacts and circums t. riLr:cs Of Lhc :ase do nol firvour the plaintiff to grant specific pr:r tor-miltcc of the agr('cmcnt oI sale as lre lailcd to cxprcss l::, r.euclincss and rr,illingncss throughour thc pcriod till the dzrtc c ilinc ol'rhe suiL. Point Nos. 1 and 2 are trnsu,ered accordingly hoL,i.r13 that timc was nol lhc ( ssonce of contract but tl-rat thc plaintifl l, .[cc1 to provc his I rca(lincss and u illingnr.ss.

12. POINT NO.3: ln vieu, of Lhe reatsonecl fincllr-rgs arrivcd iL roint Nos. I arnd 2, it is hclcl that the plaintifl rs not r:ntitled to sr,,.:ific 1>erlornrance of coltl r', r, t / 1 I I 32 AX5,] & ETD,] AS 53 2010

13. POINT NO.4 In vieu, of the reasoned findings arrived at point Nos.l to 3, it is held that the judgment and clccrce passed by the triai Court are not sustainable in law and under thc facts and circumstarces of the case.

74. POINT NO.s: In the rcsult, the appeitl is alkxvcd sctting asidc the judgment and dccrce, clated 02. 12.)OOg, passcd in O.S.No.87 of 2005 by the learned IV Addirior-ral Districr.Iudge, Ranga ltcddy District. No costs. Miscellaneous Applications, if anr,, pcnding in Lhis appeal shall stand closed sd/- K. SRINIVASA RAO JOINT REGISTRAR //TRUE COPY// SECTION OFFICER To,

1. 2 3 4 ThelVAdditionalDistrictJudge,RangaReddyDistrict,L.B.Nagar One CC to SRl. KOPPULA GOPAL Advocate [OPUC] One CC to SRI' ARAVALA SREENIVASA RAO Advocate IOPUCI Two CD CoPies ADK/PSLM HIGH COURT DATED:2910812025 ,.' <\v , l.i .li,': ' l-' /. /i' . ') /r'.' . ii,Yl :: ',.' -\ j.\ JUDGMENT AS.No.S3 of 2010 ALLOWING THE APPEAL L -t q 1 2e IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD . FRIDAY, THE TWENTY NINTH DAY OF AUGUST TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE ABHINAND XUTVTEN SHAVILI THE HONOURABLE SMT JUSTICE TIRUMALA DEVI EADA APPEAL SUIT NO: 53 OF 2010 Between:

1. V.Janardhan Reddy, S/o. Sathi Reddy Agriculture R/o. Torrur Village, Hayathnagar Mandal, Ranga Reddy District.

2. V.Peda Suseela, W/o. Janardhan Reddy Housewife Rl/o. Torrur Village, Hayathnagar Mandal, Ranga Reddy District.

3. V.Praveen Kumar Reddy, S/o. Janardhan Reddy Student Rl/o. Torrur Village, Hayathnagar Mandal, Ranga Reddy District.

4. V.Santhosh Reddy, S/o. Janardhan Reddy Student Rl/o. Torrur Village' Hayathnagar Mandal, Ranga Reddy District APPELLANTS AND N.Muralidhar Rao, S/o. Bal Rao Business Rl/o. H.No. 2-7, Street No. 2, Habsiguda, Hyderabad. RESPONDENT Appeal filed under Section 96 of C.P.C., against the judgment and decree dt.o2.12.2009 in o.S.No. 87 0f 2005 0n the file of the court of lv Additional District Judge, Ranga Reddy. ORDER: This appeal coming on for hearing, upon perusing the grounds of appeal, the Judgment and Decree of the Lower Appellate court and the material papers in the suit and upon hearing the arguments of Sri Vedula Venkata Ramana and Sri J. Prabhakar, Sr. counsels representing sri Koppula Gopal, Advocate and of sri M.V.s. Suresh Kumar, Sr. Counsel representing Sri Aravala Sreenivasa Rao, Advocate for the Respondent. That this Cturt doth Order and Decree as follows '1 . That thc, appeal is be and hereby allowed setting asce the judgrrent a nti decree dt.02. 12.2009, passed in O.S.No.87 of 2Cr05, by the learned lV Additional District Judge, Ranga Reddy District.

2. That th,-.re shall be no order as to costs. //TRUE COPY' Sd/. IK. SRINIVASA RAO , ,,f*'REGISTRAR I ,,i SECTION OFFICER To,

1. The lV Additional District Judge, Ranga Reddy District, , 8. Nagar 2. Two CD C)opres A'/ PSL 4Y/ HIGH COURT DATED:2910812025 DECREE AS.No.53 of 2010 ALLOWI\(;.THE APPEAI, (!, q )o l,l