Andhra Pradesh High Court - Amravati
Yekkala Venkata Subba Rao vs Alaparthi Nageswara Rao Another on 16 June, 2025
APHC010006172015
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
MONDAY ,THE SIXTEENTH DAY OF JUNE
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
SECOND APPEAL NO: 580/2015
Between:
Yekkala Venkata Subba Rao ...APPELLANT/DEFENDANT No.1
AND
Alaparthi Nageswara Rao ...RESPONDENT No.1/PLAINTIFF
Yekkala Venkateswarlu ...RESPONDENT No.2/DEFENDANT No.2 Counsel for the Appellant:
1. JUPUDI V K YAGNADUTT Counsel for the Respondent No.1:
1.GANTA RAMA RAO, SENIOR COUNSEL, LEO LAW REPRESENTING ASSOCIATES The Court made the following:
Judgment:
This second appeal is filed aggrieved against the Judgment and decree dated 30-4-2015 in A.S.No.11 of 2013 on the file of the X Additional District Judge, Gurazala, Guntur District, in confirming the Judgment and decree dated 25-8-2011 in O.S.No.107 of 2004 on the file of the Senior Civil Judge, Gurazala.
2. The appellant herein is the 1st defendant, the 1st respondent is the plaintiff and the 2nd respondent is the 2nd defendant in O.S.No.107 of 2004 on the file of the Senior Civil Judge, Gurazala.
3. The plaintiff initiated action in O.S.No.107 of 2004 on the file of the Senior Civil Judge, Gurazala, with a prayer for the relief of specific performance of agreement of sale directing the 1st defendant to execute a registered sale deed in his favour in pursuance of agreement of sale dated 07-7-1999 in respect of the schedule property and alternatively sought for refund of advance amount of Rs.2,20,000/- with interest at 18% per annum and for costs of the suit.
4. The learned Senior Civil Judge, Gurazala, decreed the suit with costs against the 1st defendant directing him to execute a registered sale deed in favour of the plaintiff in respect of the schedule property on receiving the balance of consideration as deposited into Court and further, directing the plaintiff to deposit the balance of consideration within one week from the date of the judgment and on such deposit, the 1st defendant is entitled to withdraw the amount and directed to execute a sale deed in terms of the decree, while dismissing the suit against the 2nd defendant without costs. Felt aggrieved of the same, the unsuccessful 1st defendant in the above said suit filed the aforesaid appeal suit before the first appellate Court. The learned X Additional District Judge, Gurazala, dismissed the first appeal with costs by confirming the judgment and decree passed by the trial Court. Aggrieved thereby, the unsuccessful 1st defendant/appellant approached this Court by way of second appeal.
5. For the sake of convenience, both parties in the second appeal will be referred to as they are arrayed in the original suit.
6. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.107 of 2004, is as follows:
(a) It is pleaded that the schedule property is a vacant site situated in Piduguralla Gram Panchayat limits. The 1st defendant is the owner of the suit schedule site and he agreed to sell the same to the plaintiff on 07-7-1999 for a lawful consideration of Rs.2,70,000/- and on the same day, the 1st defendant received Rs.2,20,000/- towards sale consideration from the plaintiff and the balance of sale consideration of Rs.50,000/- to be paid at the time of registration by the plaintiff to the 1st defendant and he got executed an agreement of sale for the suit schedule property in favour of the plaintiff by receiving Rs.2,20,000/- as part of sale consideration.
(b) It is further pleaded that the plaintiff demanded the 1st defendant to execute a registered sale deed in his favour in respect of the suit schedule property by receiving the balance sale consideration of Rs.50,000/-, but the 1st defendant did not execute a registered sale deed and postponed the same by one pretext or the other. The plaintiff expressed his readiness and willingness to perform his part of the contract and in spite of repeated demands made by him, the 1st defendant pretended to create some false documents in favour of the 2nd defendant, who is his close relative, to defeat the right of the plaintiff. On 24-8-2004, the plaintiff got issued a legal notice to the defendants 1 and 2 and requested the 1st defendant to execute a registered sale deed for the suit schedule property, but the 1st defendant did not execute any document. Hence, the plaintiff was constrained to file the suit for specific performance of contract against the 1st defendant for execution of a regular registered sale deed for the suit schedule property basing on the agreement on 07-7-1999, alternatively to direct the 1st defendant to return the earnest money of Rs.2,20,000/- with interest at 18% per annum to the plaintiff and for costs of the suit.
7. The 1st defendant filed written statement denying the contents of plaint averments and further contended as follows:
(a) It is contended that the 1st defendant acquired the suit schedule property for his family necessities and has been in possession and enjoyment of the same. There is no necessity for him either to sell the said property to the plaintiff or to execute a false document in favour of the 2nd defendant.
(b) It is further contended that there were disputes between the 1st defendant and one Reddy Venkata Koteswara Rao @ Kondalu during the year 1999 and for settlement of the said disputes, the mediators viz., Varla Ratnam, Yakkala Amara Lingeswara Rao, Challa Vengala Reddy etc., obtained the signatures of both the 1st defendant and Reddy Venkata Koteswara Rao @ Kondalu on Rs.100/- stamp papers (Rs.50/- + Rs.50/-) and also on blank promissory notes and the said papers were kept with the plaintiff. Subsequently, the disputes were not settled and no compromise was effected and the plaintiff in collusion with the above said Koteswara Rao has been dragging on the matter on one pretext or the other. Thus, the 1st defendant obtained a decree against Koteswara Rao for auctioning of his properties.
(c) It is further contended that the plaintiff is the Chairman of Pradhamika Vyavasaya Sahakara Parapathi Sangha Bank. The plaintiff in collusion with the Secretary, by name V. Krishna Murthy, forged the signature of 1st defendant and withdrawn an amount of Rs.20,000/- on 26-12-2002 and availed the entire amount by both of them for their own purposes secretly.
Subsequently, both of them made to believe the 1st defendant that they are going to auction a house of one creditor and they will give sale agreement in his favour for Rs.1,10,000/- and obtained his signature to withdraw an amount of Rs.54,500/- from his account, on a blank form as well as the signature of the 1st defendant's wife, by name Kanaka Durga.
(d) It is further contended that the plaintiff obtained sale agreement on 07-7-1999 after paying a sum of Rs.2,20,000/- and has been waiting to get regular registered sale deed after paying the balance consideration of Rs.50,000/- and waited for five years, that he approached the Court with unclean hands. The attestor and the scribe are close friends to the plaintiff. The suit agreement is a sham document and thus, the plaintiff is not entitled to seek for the relief of either specific performance or for refund of amount and thus the suit is not maintainable. He prayed to dismiss the suit with costs.
8. The 2nd defendant remained set ex parte.
9. On the basis of above pleadings, the learned Senior Civil Judge, Gurazala, framed the following issues for trial:
(1) Whether the plaintiff is entitled to the relief of specific performance as prayed for ?
(2) Whether the plaintiff in the alternative is entitled to recover Rs.2,20,000/- as claimed by him from the defendant ?
(3) Whether the signatures of the defendant was obtained forcibly by the plaintiff ? and (4) To what relief ?
10. During the course of trial in the trial Court, on behalf of the plaintiff, P.Ws.1 to 3 were examined and Exs.A-1 to A-6 were marked. On behalf of the 1st defendant, D.Ws.1 and 2 were examined and Exs.B-1 to B-10 were marked.
11. The learned Senior Civil Judge, Gurazala, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, decreed the suit with costs. Felt aggrieved thereby, the unsuccessful 1st defendant filed the appeal suit in A.S.No.11 of 2013 before the learned X Additional District Judge, Gurazala, wherein, the following point came up for consideration:
Whether the judgment and decree of the trial Court is sustainable in law ?
12. The learned X Additional District Judge, Gurazala, i.e., the first appellate Judge, after hearing the arguments, answered the point, as above, against the 1st defendant/appellant and in favour of the plaintiff/1st respondent and dismissed the appeal suit filed by the 1st defendant. Felt aggrieved of the same, the unsuccessful 1st defendant in O.S.No.107 of 2004 filed the present second appeal before this Court.
13. On hearing both side counsels at the time of admission of the second appeal, on 08-11-2016, the composite High Court of Andhra Pradesh at Hyderabad, framed the following substantial questions of law:
(1) Whether the suit sale agreement-Ex.A1 dated 07-7-1999 is not duly executed, valid and supported by consideration from the version of the defendant, of the plaintiff obtained signatures on the blank/blank stamp papers and taking advantage of the same to act as mediator misused the same and still the conclusion of the trial Court that from the signatures admitted contents follow including, no doubt, with reference to the evidence of attestors is sustainable, in view of the law laid down by the Apex Court in Abdul Jabbar v.
Venkata Sastri (AIR 1969 SC 1147) as and when presumption from the admission of signature to be drawn and when not to draw ?
(2) Whether the suit sale agreement dated 07-7-1999, which contains no stipulation for performance and the return notice of demand under Ex.A2 was after four years on 24-8-2004 in filing the suit in the same year subsequent to the said reply-Ex.A3, is barred by limitation within the scope of Article 54 of the Indian Limitation Act and even otherwise plaintiff is entitled to the equitable and discretionary relief of specific performance and from the gap between the agreement and date of notice, whether constitutes the pre-requisite of ever- ready and willing to perform his part of the contract ?
(3) Whether the equitable relief of specific performance to exercise the discretion is giving undue hardship to the defendant rather to the plaintiff and if so, the discretion exercised by the trial Court is unsustainable equally to confirm the same by the lower appellate Court ?
(4) Whether the deciding of the appeal on merits by the lower appellate Court by dismissing or rejecting the application for adjournment from change of advocate and even dismissing or rejecting the application to reopen subsequently in saying taken as heard is contrary to the spirit of Order 41, Rule 17 C.P.C and liable to be set aside ? and (5) To what result ?
14. Heard Sri Jupudi V.K. Yagnadutt, learned counsel for the appellant/1st defendant and Sri Ganta Rama Rao, learned Senior Counsel representing M/s. Leo Law Associates appearing for the 1st respondent/ plaintiff.
15. Dealing with the scope of Section 100 of the Code of Civil Procedure, the Apex Court in the case of Kulwant Kaur v. Gurdial Singh Mann (Dead) By Lrs1 held as follows:
"34. ... ... ... Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication -- what is required is a categorical finding on the part of the High Court as to perversity. ... ... ..."
The Apex Court in the case of Yadavarao Dajiba Shrawane v. Nanilal Harakchand Shah (Dead) and Ors.,2 held as follows:
"31. From the discussions in the judgment it is clear that the High Court has based its findings on the documentary evidence placed on record and statements made by some witnesses which can be construed as admissions or conclusions. The position is well settled that when the judgment of the final court of fact is based on misinterpretation of documentary evidence or on consideration of inadmissible evidence or ignoring material evidence the High Court in second appeal is entitled to interfere with the judgment. The position is also well settled that admission of parties or their witnesses are relevant pieces of evidence and should be given due weightage by courts. A finding of fact ignoring such admissions or concessions is vitiated in law and can be interfered with by the High Court in second appeal. Since the parties have been in litigating terms for several decades, the records are voluminous.1
(2001) 4 SCC 262 2 (2002) 6 SCC 404 The High Court as it appears from the judgment, has discussed the documentary evidence threadbare in the light of law relating to their admissibility and relevance."
In the case of Hero Vinoth (Minor) v. Seshammal 3 , the Apex Court held as follows:
"19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, the one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence." (emphasis supplied) In the present case on hand, on appreciation of the entire evidence on record, the learned trial Judge decreed the suit filed for specific performance of agreement of sale by the plaintiff and on re-appreciation of the entire evidence on record, the learned first appellate Judge confirmed the judgment passed by the learned trial Judge and both the Courts below have given concurrent finding against which, the second appeal has been preferred by the 1st defendant. The suit is based on Ex.A-1 agreement of sale said to have been executed by the 1st defendant. The contention of the appellant is that he never executed the agreement of sale Ex.A-1 in favour of the plaintiff.
16. Section 20 of the Specific Relief Act, 1963, defines that grant of relief of specific performance is discretionary and the said discretion has to be 3 (2006) 5 SCC 545 exercised judiciously but not arbitrarily. The plaintiff cannot be punished by refusing the relief of specific performance despite the fact that the execution of agreement of sale in his favour has been established and proved and that he is found to be always ready and willing to perform his part of the contract. Not to grant a decree of specific performance despite execution of agreement of sale is proved and the plaintiff is always ready and willing to perform his part of the contract would encourage dishonesty.
17. The contention of appellant is that there were disputes between him and one Reddy Venkata Koteswara Rao during the year 1999 and for settlement of the said disputes, mediators Varla Ratnam, Yakkala Amara Lingeswara Rao, Challa Vengala Reddy have obtained signatures of both the 1st defendant and Reddy Venkata Koteswara Rao on Rs.100/- stamp papers (Rs.50/- + Rs.50/-) and also on blank papers and the said papers were kept with the plaintiff. The appellant further pleaded that since the disputes were not settled and the plaintiff in collusion with Reddy Venkata Koteswara Rao has been dragging on the matter. The appellant further pleaded in the written statement itself that the plaintiff in collusion with the Secretary of Society, by name V. Krishna Murthy, forged the signature of 1st defendant and withdrawn an amount of Rs.20,000/- on 26-12-2002 and availed the entire amount by both of them for their own purpose secretly. The 1 st defendant further pleaded that the plaintiff obtained his signature to withdraw an amount of Rs.54,500/- from his account in the Cooperative Society and the plaintiff also obtained his signatures on blank form as well as the signature of his wife. Since the 1st defendant is admitting the signatures on Ex.A-1 agreement but disputing Ex.A-1 agreement sale transaction, the evidence on record has to be scrutinized with care and caution. Both the Courts below arrived at a concurrent finding that the plaintiff is entitled to the main relief of specific performance of agreement of sale. The plaintiff proved Ex.A-1 agreement through P.Ws.2 and 3. P.W.2 is one of the attestors in Ex.A-1 agreement of sale. P.W.3 is the scribe of Ex.A-1 agreement of sale. It is not the case of appellant that he is having enmity with the attestors and that they deposed falsehood against him. To disprove Ex.A-1 agreement of sale and to prove the defence put-forth by him in the written statement, the 1st defendant examined himself as D.W.1. He admitted the signatures on Ex.A-1 agreement of sale. As per his own statement in his evidence, the signatures on Ex.A-1 agreement belong to him and he is not having personal disputes with both the attestors.
18. It was contended by the appellant that the plaintiff is the president of Cooperative Society/Bank. The contention of appellant/1st defendant is that being the President of Cooperative Society, the plaintiff obtained his signatures on blank papers and fabricated Ex.A-1 agreement of sale. But, the 1st defendant admitted in his evidence in cross-examination itself that he is not a member in the Cooperative Society. In case if he is not a member of the Cooperative Society, obtaining a loan from the Cooperative Society in which the plaintiff worked as President of the Society does not arise.
19. As per the evidence of D.W.2, he came to know that the plaintiff used the empty Non-Judicial stamp papers as an agreement of sale in his favour alleged to have been sold by the 1st defendant and filed the present suit. Therefore, the above admission of D.W.2 goes to show that he is not having any personal knowledge about the sale transaction. As per the pleadings in the written statement of the 1st defendant, the mediators have obtained his signatures and that of Reddy Venkata Koteswara Rao on stamp papers and kept the same with the plaintiff. But, as per the statement of D.W.2, the 1st defendant and Reddy Venkate Koteswara Rao purchased stamp papers as per the own instructions of the plaintiff and handed over the same to the plaintiff.
20. It is well settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. In the case of Kashinath (Dead) through LRs v. Jaganath4, the Apex Court held that where the evidence is not in line with the pleadings and is at variance with it, the said evidence cannot be looked into or relied upon. Therefore, it is not safe to rely on the evidence of D.W.2. For the aforesaid reasons, I am of the considered view that Ex.A-1 agreement of sale is duly proved by the plaintiff, but the 1st defendant failed to prove the defence put-forth by him in the written statement. It is open to the appellant to prove that the case set up by the plaintiff on the basis of the recitals in Ex.A-1 agreement or the case set up in the suit notice or in the plaint is not true, but the appellant failed to prove the same.
21. It was contended by the appellant that Ex.A-1 agreement of sale is dated 07-7-1999 and after a lapse of four years, the plaintiff issued a legal notice on 24-8-2004 to execute a regular registered sale deed and that the plaintiff failed to prove the ingredients under Section 16(c) of the Specific Relief Act and that the plaintiff is not entitled to the relief of specific performance of agreement of sale. In the case on hand, Ex.A-1 agreement of sale is said to have been executed on 07-7-1999 by the 1st defendant. The recitals in Ex.A-1 agreement of sale are, from out of total sale consideration of Rs.2,70,000/-, a substantial amount has been paid by the plaintiff to the 1st defendant and a paltry amount of Rs.50,000/- has to be unpaid and the remaining balance of sale consideration is Rs.50,000/- only. The recitals in Ex.A-1 agreement of sale are that as and when the plaintiff paid Rs.50,000/-, the 1st defendant has to execute a regular registered sale deed in favour of the plaintiff. Therefore, the time is not an essence of the contract. On 24-8-2004, the plaintiff got issued a legal notice to the 1st defendant by demanding him to execute a regular registered sale deed and a week time was fixed to perform the part of the contract by the 1st defendant and later on 01-9-2004 the plaintiff filed the present suit. Ex.A-3 shows that on 17-9-2004 subsequent to filing of the suit only, the 1st defendant issued a reply notice by denying the contents of legal notice. Article 54 of the Limitation Act deals with 4 (2003) 8 SCC 740 suits for specific performance of the contract. The limitation to file a suit for specific performance of contract of sale is the date fixed by parties or if no such date is fixed when the plaintiff has noticed that performance is refused. The plaintiff herein filed the suit on 01-9-2004, therefore the suit is not at all barred by limitation.
22. Admittedly, in the case on hand, time is not an essence of the contract and no time limit was fixed for performance of the contract. From out of the total sale consideration of Rs.2,70,000/-, a substantial amount of Rs.2,20,000/- was paid to the 1st defendant and unpaid balance of sale consideration is Rs.50,000/-, which is a meager amount. The recitals in Ex.A-1 agreement of sale are that the 1st defendant has to execute a regular registered sale deed as and when the balance amount of Rs.50,000/- was paid by the plaintiff. It is the specific case of the plaintiff from the beginning in the plaint itself that though he expressed his readiness and willingness to perform his part of the contract in spite of repeated demands made by him demanding the 1st defendant to receive the balance of sale consideration of Rs.50,000/-, but the 1st defendant did not execute a regular registered sale deed. As per the evidence of P.W.1, he demanded the 1 st defendant to execute a regular registered sale deed in his favour by receiving the balance of sale consideration of Rs.50,000/-, but the 1st defendant did not come forward to perform his part of the contract. In the cross-examination, it was not at all suggested to the plaintiff by the learned counsel for 1st defendant that the plaintiff did not demand the 1st defendant to execute a regular registered sale deed. It was not suggested to P.W.1 in the cross-examination by the learned counsel for 1st defendant that there are laches on the part of the plaintiff in obtaining a regular registered sale deed but not in favour of the 1st defendant. It was not suggested to the plaintiff in the cross-examination by the learned counsel for 1st defendant that the plaintiff never demanded to receive the balance of sale consideration of Rs.50,000/- and never demanded the 1st defendant to execute a regular registered sale deed.
23. The learned counsel for appellant placed reliance on a judgment of the Apex Court in the case of Rajesh Kumar v. Anand Kumar5, wherein the Apex Court held as follows:
"10. Thereafter, in Man Kaur vs. Hartar Singh Sangha [(2010) 10 SCC 512], this Court referred to its earlier decisions including Janki Vashdeo Bhojwani (supra) and concluded thus in paras 17 & 18:
"17. To succeed in a suit for specific performance, the plaintiff has to prove: (a) that a valid agreement of sale was entered into by the defendant in his favour and the terms thereof; (b) that the defendant committed breach of the contract; and (c) that he was always ready and willing to perform his part of the obligations in terms of the contract. If a plaintiff has to prove that he was always ready and willing to perform his part of the contract, that is, to perform his obligations in terms of the contract, necessarily he should step into the witness box and give evidence that he has all along been ready and willing to perform his part of the contract and subject himself to cross- examination on that issue. ... ... ... .
18. ......................................................................................."
In the case on hand, the plaintiff produced a valid agreement in between him and 1st defendant and the same was exhibited as Ex.A-1. As per the recitals in Ex.A-1, time is not an essence of the contract. Out of total sale consideration of Rs.2,70,000/- under Ex.A-1 agreement of sale, a substantial amount of Rs.2,20,000/- was paid and unpaid balance of sale consideration is Rs.50,000/- and the plaintiff stepped into the witness-box and gave evidence as P.W.1. In the plaint and in his evidence, the plaintiff constantly has taken a stand that though he demanded the 1 st defendant on several occasions to execute a regular registered sale deed in his favour by receiving the balance of sale consideration of Rs.50,000/-, the 1st defendant did not come forward to discharge his part of the contract.
24. The learned counsel for appellant placed reliance on a judgment of the Apex Court in the case of R. Shama Naik v. G. Srinivasaiah6, wherein the Apex Court held as follows:
52024 SCC Online SC 981 "11. There is a fine distinction between readiness and willingness to perform the contract. Both the ingredients are necessary for the relief of specific performance.
12. While readiness means the capacity of the plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the plaintiff."
Admittedly, in the case on hand, a substantial amount of Rs.2,20,000/- from out of total sale consideration of Rs.2,70,000/- was paid on the date of agreement itself, the possession is with the 1st defendant and the unpaid balance amount is Rs.50,000/- only. Therefore, the facts and circumstances in the cited decisions are different to the instant case.
25. The learned counsel for appellant placed a reliance on U.N. Krishnamurthy (since deceased) through LRs v. A.M. Krishnamurthy 7 wherein the Apex Court held as follows:
"23. Section 16 (c) of the Specific Relief Act, 1963 bars the relief of specific performance of a contract in favour of a person, who fails to aver and prove his readiness and willingness to perform his part of contract. In view of Explanation (i) to clause (c) of Section 16, it may not be essential for the plaintiff to actually tender money to the defendant or to deposit money in court, except when so directed by the Court, to prove readiness and willingness to perform the essential terms of a contract, which involves payment of money. However, Explanation (ii) says the plaintiff must aver performance or readiness and willingness to perform the contract according to its true construction.
24. To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the 6 2024 SCC Online SC 3586 7 (2023) 11 SCC 775 plaintiff would have to specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for disbursement of adequate funds for timely compliance with the terms and conditions of a contract involving payment of money."
The Apex Court in U.N. Krishnamurthy (7 supra), further held as follows:
"42. In Saradamani Kandappan [Saradamani Kandappan v. S. Rajalakshmi, (2011) 12 SCC 18 : (2012) 2 SCC (Civ) 104] this Court reiterated that:
42.1. While exercising discretion in suits for specific performance, the courts should bear in mind that when the parties prescribed a time for taking certain steps or for completion of the transaction, that must have some significance and therefore time/period prescribed cannot be ignored.
42.2. The courts will apply greater scrutiny and strictness when considering whether purchaser was ready and willing to perform his part of the contract.
42.3. Every suit for specific performance need not be decreed merely because it is filed within the period of limitation, by ignoring time limits stipulated in the agreement. The courts will also frown upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait for one or two years to file a suit and obtain specific performance. The three year period is intended to assist the purchaser in special cases, as for example where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser.
43. In Atma Ram v. Charanjit Singh [Atma Ram v. Charanjit Singh, (2020) 3 SCC 311 : (2020) 2 SCC (Civ) 107] V. Ramasubramanian, J. speaking for this Court made the following pertinent observation : (SCC p. 316, para 9) "9. ... No explanation was forthcoming from the petitioner for the long delay of three years, in filing the suit (on 13-10-1999) after issuing a legal notice on 12-11-1996. The conduct of a plaintiff is very crucial in a suit for specific performance. A person who issues a legal notice on 12-11-1996 claiming readiness and willingness, but who institutes a suit only on 13-10-1999 and that too only with a prayer for a mandatory injunction carrying a fixed court fee relatable only to the said relief, will not be entitled to the discretionary relief of specific performance."
In the case on hand, Ex.A-1 agreement of sale is duly proved. In Ex.A-1, no specific time limit was fixed to perform the contract. As per the recitals in Ex.A-1 agreement of sale, the total sale consideration is Rs.2,70,000/- and a substantial amount of Rs.2,20,000/- was received by the 1st defendant and the remaining unpaid balance of sale consideration is Rs.50,000/- only and that is to be paid at the time of registration of document by the 1st defendant and the 1st defendant did not issue any legal notice to the plaintiff to discharge his obligation. In fact, the plaintiff issued a legal notice to the 1st defendant by fixing one week time in favour of the 1st defendant to perform his part of the contract to receive the balance of sale consideration of Rs.50,000/- and to execute a registered sale deed. Since there is no response from the 1st defendant, the plaintiff filed the present suit on 01-9-2004 and the legal notice said to have been issued by the plaintiff is on 28-4-2004. Subsequent to the filing of the suit, the 1st defendant issued a reply notice to Ex.A-2 legal notice. In fact, the 1st defendant did not issue any legal notice to the plaintiff by informing that though he is ready and willing to perform his part of the contract, but the plaintiff did not come forward to discharge his obligation.
26. In the case of Shenbagam v. K.K. Rathinavel8, the Apex Court held as follows:
"41. True enough, generally speaking, time is not of the essence in an agreement for the sale of immoveable property. In deciding whether to grant the remedy of specific performance, specifically in suits relating to sale of immovable property, the courts must be cognizant of the conduct of the parties, the escalation of the price of the suit property, and whether one party will unfairly benefit from the decree. The remedy provided must not cause injustice to a party, specifically when they are not at fault. ... ... ...".
In the case of K. Prakash v. B.R. Sampath Kumar9, the Apex Court held as follows:
82022 SCC Online SC 71 9 (2015) 1 SCC 597 "16. The principle which can be enunciated is that where the plaintiff brings a suit for specific performance of contract for sale, the law insists upon a condition precedent to the grant of decree for specific performance : that the plaintiff must show his continued readiness and willingness to perform his part of the contract in accordance with its terms from the date of contract to the date of hearing. Normally, when the trial court exercises its discretion in one way or the other after appreciation of entire evidence and materials on record, the appellate court should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The appellate court should also not exercise its discretion against the grant of specific performance on extraneous considerations or sympathetic considerations. It is true, as contemplated under Section 20 of the Specific Relief Act, that a party is not entitled to get a decree for specific performance merely because it is lawful to do so. Nevertheless once an agreement to sell is legal and validly proved and further requirements for getting such a decree are established then the court has to exercise its discretion in favour of granting relief for specific performance.
17. .............................................................................................
18. Subsequent rise in the price will not be treated as a hardship entailing refusal of the decree for specific performance. Rise in price is a normal change of circumstances and, therefore, on that ground a decree for specific performance cannot be reversed."
In the case on hand, the 1st defendant denied the execution of Ex.A-1 agreement of sale, but admitted the signatures on agreement of sale. The equitable discretion to grant or not to grant relief for specific performance also depends upon the conduct of the parties. The necessary ingredients have to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the plaintiff. At the same time, if the defendant did not come with clean hands and suppressed material facts and evidence and misled the Court, then said discretion should not be exercised by refusing to grant specific performance. The 1st defendant simply denied the execution of Ex.A-1 agreement of sale and the appellant does not come with clean hands and suppressed the material facts and the evidence and misled the Court. The plaintiff in order to prove his case, relied on the evidence of P.Ws.1 to 3 and produced the original agreement of sale and exhibited it as Ex.A-1. In the case on hand, the appellant disputed the execution of Ex.A-1 agreement of sale, but the contention of the appellant is that the plaintiff obtained his signatures on empty papers and those are created as Ex.A-1 agreement of sale, but the same is not proved by the appellant by adducing cogent evidence.
27. For the aforesaid reasons, the plaintiff is entitled to the main relief of specific performance of agreement of sale. Both the Courts below came to concurrent finding that the plaintiff in the suit is entitled to the main relief of specific performance of agreement of sale. On appreciation of the entire evidence on record, the learned trial Judge gave finding that the plaintiff is entitled to the main relief of specific performance of agreement of sale. On re-appreciation of the entire evidence on record also, the learned first appellate Judge confirmed the judgment passed by the learned trial Judge. The findings of fact recorded by both the Courts below were based on proper appreciation of evidence and the material on record and there was neither illegality nor irregularity in those findings and therefore, the findings do not require to be upset. Therefore, the conclusions drawn by both the Courts below are found correct. There is no need to interfere with the concurrent finding arrived at by both the Courts below.
28. In the result, the second appeal is dismissed confirming the judgments and decrees of both the Courts below. Pending applications, if any, shall stand closed. Each party do bear their own costs in the second appeal.
VENUTHURUMALLI GOPALA KRISHNA RAO,J