Andhra Pradesh High Court - Amravati
Between vs Vandana Murali Mohan on 27 July, 2023
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
APPEAL SUIT No.956 OF 2017
Between:
Rokkam Surya Prakasa Rao,
S/o Udaya Bhaskara Rao,
Aged 54 years, R/o Mahalakshmi Nagar,
Srikakulam Town and District. .... Appellant/Defendant.
Versus
Vandana Murali Mohan,
S/o late Satyanarayana,
Aged 58 years, Chartered Accountant,
R/o D.No.7-6-26, New Colony,
Srikakulam Town and District. ... Respondent/Plaintiff.
DATE OF JUDGMENT PRONOUNCED : 27.07.2023
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
1. Whether Reporters of Local Newspapers
may be allowed to see the Judgment? Yes/No
2. Whether the copy of Judgment may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to see the
Fair copy of the Judgment? Yes/No
___________________________
A.V.RAVINDRA BABU, J
2
* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ APPEAL SUIT No.956 OF 2017
% 27.07.2023
# Between:
Rokkam Surya Prakasa Rao,
S/o Udaya Bhaskara Rao,
Aged 54 years, R/o Mahalakshmi Nagar,
Srikakulam Town and District. .... Appellant/Defendant.
Versus
Vandana Murali Mohan,
S/o late Satyanarayana,
Aged 58 years, Chartered Accountant,
R/o D.No.7-6-26, New Colony,
Srikakulam Town and District. ... Respondent/Plaintiff.
! Counsel for the Appellant : Sri P. Veera Reddy.
^ Counsel for the Respondent : Sri G. Ramesh Babu.
< Gist:
> Head Note:
? Cases referred:
(2011) 12 Supreme Court Cases 18
2022 SCC OnLine SC 71
2022 SCC OnLine SC 1545
2022 SCC OnLine SC 840
1991 SCC OnLine Mad 143
(1985) 98 L.W.674=1984 SCC OnLine Mad 77
(2022) 2 Supreme Court Cases 382
This Court made the following:
3
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
APPEAL SUIT NO.956 OF 2017
JUDGMENT:-
The judgment, dated 29.06.2017 in O.S.No.37 of 2013, on the file of Principal District Judge, Srikakulam, is under challenge in the present appeal filed by the unsuccessful defendant in the above said suit.
2) The parties to this Civil Appeal will hereinafter be referred to as described before the learned Principal District Judge, Srikakulam, for the sake of convenience.
3) The plaintiff before the learned Principal District Judge, Srikakulam, filed the suit seeking specific performance of agreement of sale, which was decreed on contest. Felt aggrieved by the said judgment, the unsuccessful defendant filed the present appeal.
4) The case of the plaintiff, in brief, according to the plaint averments, is as follows:
(i) The defendant executed an agreement of sale in respect of an extent of Ac.0-30 cents of land covered by Survey No.468/A, situated in Killipalem Panchayat of Patha Srikakulam Rural, Srikakulam Mandal, on 07.05.2011, in favour of the plaintiff, agreeing to sell the land at the rate of Rs.65,000/- per 4 cent. It is fully described in the plaint schedule. The plaintiff paid a sum of Rs.9,00,000/- on the date of agreement of sale as part of sale consideration which was recited in the agreement itself.
According to the terms of the agreement, the defendant has to get the land surveyed with the assistance of Field Measurement Book and a Surveyor in the presence of the plaintiff within three months from the date of agreement i.e., by 06.08.2011 and on such survey, the plaintiff has to get the sale deed registered by paying the balance sale consideration on the actual extent of land. The defendant handed over Xerox copy of his sale deed, dated 30.08.1993 at the time of execution of agreement and agreed to handover all the original documents including his passbook, title deed and sale deed relating to the schedule property at the time of registration.
(ii) The defendant did not come forward to get the land surveyed as per the terms of the agreement within three months of the agreement. In spite of several demands made by the plaintiff personally and through mediators who are also the attestors of the agreement and in spite of readiness of the plaintiff to get the sale deed registered by paying the balance sale consideration, the defendant did not turn up. The defendant has knowledge that the plaintiff has the financial capacity to pay the 5 balance sale consideration and registration expenses. The defendant with a malafide intention prolonged the issue.
(iii) Therefore, the plaintiff got issued a legal notice to the defendant on 04.07.2012 requesting him to get the land surveyed with the assistance of Field Measurement Book and a Surveyor within a week of receipt of the notice and to register the sale deed in his favour. The defendant received the notice and got issued a reply on 27.07.2012 with all false allegations. The defendant having admitted the execution of agreement have made false allegations to the effect that he moved around the plaintiff for a period of six months to get the sale deed registered and the plaintiff expressed his inability to get the sale deed registered, as such, he informed the plaintiff that the agreement is cancelled. The defendant also stated in his reply notice that the cost of land shall be subject to the date of registration, which reflects the malafide motive of the defendant to perform his part of contract. The defendant got issued a reply notice by forgetting that he is guilty of the breach of terms of the agreement by not performing his part of contract. The contents of his reply speak volumes about the nature of the defendant to draw more money than what is agreed upon under the agreement. The plaintiff was and is always ready right from the date of agreement till the date with balance sale consideration, registration charges and other 6 incidental expenses to get the sale deed registered and it is within the knowledge of the defendant. In fact, it is the defendant who tried to wriggle out of the terms of the contract with a malafide intention to grab more money from the plaintiff. Hence, the suit for direction to the defendant to execute a registered sale deed in favour of the plaintiff for the suit schedule property by receiving the balance sale consideration of Rs.10,50,000/- within the time stipulated by the Court and if for any reason the equitable relief of specific performance cannot be granted, to give direction to the defendant to repay the advance sale consideration with interest at the rate of 24% per annum from the date of agreement till realization.
5) To the above said plaint averments, the defendant got filed a written statement denying the averments in the plaint. In para Nos.1, 2, 3, 4 and 5 of his written statement, he denied the allegations in the plaint in toto. The case of the defendant can be seen from the rest of the paragraphs.
(i) His contention in para No.6 is that he got issued a befitting reply to the plaintiff in response to the legal notice.
(ii) The contents in para No.7 is that the plaintiff requested the defendant to sell away Ac.0-30 cents of land (site) in Killipalem Panchayat and the plaintiff is a real estate dealer. The plaintiff did not furnish the real transaction between the 7 defendant and plaintiff. In fact, from the date of the agreement, the defendant moved around the plaintiff for a period of six months in several occasions by requesting him to take a registered sale deed by paying the balance sale consideration. The plaintiff used to express his desire to take a registered sale deed, but expressed his inability to pay the balance sale consideration. Therefore, the defendant intimated to the plaintiff that contract of agreement is cancelled because the default is from the end of the plaintiff, as he failed to take a registered sale deed within a stipulated time.
(iii) The contents in para No.8 of the written statement of the defendant is that the terms of contract will have a say that they are to be fulfilled within stipulated time. Any deviation from the terms of the agreement can only be considering the cost of the land on the date of registration because one year has been elapsed. Hence, the rate per cent and the extent will be depending upon the date of registration as the plaintiff failed to fulfill the terms of contract within the stipulated period. The plaintiff became a defaulter in complying the terms and conditions.
(iv) The contention of the defendant according to para No.9 of the written statement is that he is disputing the schedule of the property and even the extent and the boundaries. The value 8 of the property shall be considered at the time of registration of the sale deed. The plaintiff failed to perform his part of contract.
(v) The further contention of the defendant is that the suit is not maintainable and the suit is bad for want of registration of the agreement of sale and the agreement of sale is materially altered, as such, the suit is to be dismissed.
6) Basing on the above pleadings, the following issues were settled for trial before the learned Principal District Judge, Srikakulam:
(1) Whether the time is the essence of the contract? (2) Whether the plaintiff is entitled for specific performance of agreement of sale, dated 07.05.2011?
(3) Whether the plaintiff is entitled for refund of the advance amount of Rs.9,00,000/- with interest, as prayed for?
(4) To what relief?
7) During the course of trial, on behalf of the plaintiff before the learned Principal District Judge, Srikakulam, P.W.1 to P.W.3 were examined and Ex.A.1 to Ex.A.8 were marked. On behalf of the defendant, D.W.1 and D.W.2 were examined.
8) The learned Principal District Judge, Srikakulam, on hearing both sides and on considering the oral as well as documentary evidence, answered the issues in favour of the 9 plaintiff and accordingly, decreed the suit of the plaintiff granting a decree of specific performance of agreement of sale by directing the defendant to execute the registered sale deed in respect of the plaint schedule property in favour of the plaintiff after receiving the balance sale consideration amount within three months from the date of the judgment and if the defendant fails to execute the registered sale deed, the plaintiff is at liberty to get it done under due process of law. Felt aggrieved of the same, the unsuccessful defendant filed the present appeal.
9) Now, in deciding the present Appeal, the points that arise for consideration are as follows:
(1) Whether the plaintiff before the learned Principal District Judge, Srikakulam, proved his entitlement for specific performance of agreement of sale, dated 07.05.2011 so as to get a registered sale deed?
(2) Whether the judgment of the learned Principal District Judge, Srikakulam, is sustainable under law and facts and whether there are any grounds to interfere with the same?
(3) To what relief?
Point Nos.1 and 2:-
10) P.W.1, who was the plaintiff, got filed his chief examination affidavit before the learned Principal District Judge, Srikakulam, adverting to the averments in the plaint. Through his examination, Ex.A.1 to Ex.A.3 were marked. Ex.A.1 was sale 10 agreement, dated 07.05.2011 executed by the defendant in his favour. Ex.A.2 was the office copy of legal notice, dated 04.07.2012, got issued by him to the defendant. Ex.A.3 was the reply notice, dated 27.07.2012, got issued by the defendant to his Ex.A.2 notice.
11) P.W.2 was one of the attestors to the agreement of sale and his chief examination affidavit in substance is that he mediated the transaction between the plaintiff and defendant and the defendant agreed to sell an extent of Ac.0-30 cents of land at the rate of Rs.65,000/- per cent to the plaintiff, as such, entered into agreement on 07.05.2011 in his presence and the agreement was drafted by scribe Balaga Sambasiva Rao Master. Another attestor is Kunuku Appanna. An advance of Rs.9,00,000/- was paid to the defendant in their presence which was recited therein. According to the terms of the agreement, the defendant has to get land surveyed by 06.08.2011 as per the Field Measurement Book by a Surveyor in the presence of the plaintiff and on such survey the plaintiff has to get the land registered by paying the balance sale consideration. The defendant did not come forward to get the land surveyed in spite of several requests made by the plaintiff and also by him (P.W.2). The corrections in Ex.A.1 were duly noted. This is the substance of the evidence of P.W.2. 11
12) Coming to the evidence of P.W.3, the scribe, his evidence is that he is a document writer and he is scribing documents for the last 50 years. He drafted the suit agreement. An advance of Rs.9,00,000/- was given in his presence and accordingly, he drafted the agreement as per the terms and conditions. Ex.A.1 bears his signature. It is the same agreement scribed by him. He noted the corrections at the bottom of Ex.A.1.
13) D.W.1 is no other than the defendant and he filed his chief examination affidavit and the chief examination affidavit of D.W.1 is replica of his written statement. During the course of cross examination of D.W.1, a Xerox copy of Ex.A.1 which was said to be served copy by the Court was marked as Ex.A.4. Further a Xerox copy of sale deed, dated 30.08.1993 stands in the name of the defendant was also marked as Ex.A.5.
14) D.W.2 is another attestor to Ex.A.1, whose chief examination is that the suit agreement was attested by him as second attestor. He put his signature at the office of Vandana Murali. It was written already in which he signed as attestor. He was told that R. Surya Prakasa Rao was paid Rs.2,00,000/- only as advance and it was agreed to get the sale deed registered within three months only. During cross examination of D.W.2, his signature on Ex.A.4 was marked as Ex.A.7. Further his signature on Ex.A.1 was marked as Ex.A.8.
12
15) Sri P. Veera Reddy, the learned Senior Counsel appearing for the appellant, would contend that according to the terms of Ex.A.1, the purchase value per cent was Rs.65,000/- and the total extent was Ac.0-30 cents, as such, it should come to Rs.19,50,000/-. Purposefully, the value of Rs.19,50,000/- was not mentioned in the top of it. According to Ex.A.1, the plaintiff has to get the sale deed registered in his name within three months by 06.08.2011 after the land was getting surveyed by the defendant. Therefore, there was a stipulation in Ex.A.1 that the plaintiff should get sale deed within three months from the date of Ex.A.1 by 06.08.2011. When the defendant, according to him, moved around the plaintiff several times for a period of six months requesting him to get the sale deed executed in his name, he evaded and he expressed his inability to get the sale deed due to his financial constraints, as such, the defendant cancelled Ex.A.1. In fact, the defendant got surveyed the land in the presence of the plaintiff according to his defence. If really the defendant did not survey the land before 06.08.2011, the plaintiff would not have kept quiet and he would have issued a legal notice like Ex.A.1 even prior to 06.08.2011. On the other hand, the plaintiff issued Ex.A.2 belatedly in the month of July, 2012. It shows the conduct of the plaintiff. He had no intention to adhere of the terms and conditions mentioned in Ex.A.1. His failure to 13 respond by way of a legal notice prior to 06.08.2011 shows his conduct. So, it is the plaintiff, who was a defaulting party, though there was a mention that the time is the essence of the contract. He never expressed his readiness and willingness to perform his part of contract. The defendant issued suitable reply under Ex.A.3. Therefore, as time was essence of the contract under Ex.A.1 and the plaintiff did not respond so as to fulfill his obligation, the defendant intimated to the plaintiff that he cancelled the agreement of sale orally. After keeping quiet with abnormal delay he chose to issue a legal notice. He would contend that the time is the essence of the contract and the plaintiff never expressed his readiness and willingness to perform his part of contract.
16) The learned Senior Counsel for the appellant would further strenuously contend that as admitted by P.W.1 to P.W.3, there was a correction correcting the figure of Rs.2,00,000/- as that of Rs.9,00,000/-. The plaintiff failed to explain as to under what circumstances such material alterations were made. In fact, the defendant received only Rs.2,00,000/-, but not Rs.9,00,000/- as mentioned. The evidence of P.W.1 to P.W.3 is not inspiring confidence in this regard. So, absolutely, the case on hand shows that the plaintiff is guilty of material alteration so as to benefit himself.
14
17) The learned Senior Counsel for the appellant in support of his contention that the time is essence of the contract would rely upon the decision of Saradamani Kandappan vs. S. Rajalakshmi and others 1 . He would further rely upon the decisions of Shenbagam and others vs. K.K. Rathinavel 2 , V.S. Ramakrishnan vs. P.M. Muhammed Ali 3 and U.N. Krishnamurthy (since deceased) and others vs. A.M. Krishnamurthy4 to contend that the plaintiff miserably failed to prove that he has been always ready and willing to perform his part of contract. He would further rely upon the decisions of Janab M.H.M. Yakoob (died) and another vs. M.Krishnan (died) and others5and S.K. Panchaksharam Mudaliar (died) and others vs. T.V. Kannaiah Naidu and others6 to contend that Ex.A.1 is affected with material alteration. He would further submits that at any rate the learned Principal District Judge, Srikakulam, did not appreciate the evidence on record properly and granted decree of specific performance of agreement of sale erroneously, as such, the decree is liable to be set aside.
18) The learned counsel for the respondent, Sri G. Ramesh Babu, would contend that the defendant never denied 1 (2011) 12 Supreme Court Cases 18 2 2022 SCC OnLine SC 71 3 2022 SCC OnLine SC 1545 4 2022 SCC OnLine SC 840 5 1991 SCC OnLine Mad 143 6 (1985) 98 L.W.674=1984 SCC OnLine Mad 77 15 the contents of Ex.A.1. It was the fundamental duty of the defendant first to get the land surveyed with the help of Field Measurement Book and a Surveyor in the presence of the plaintiff. When it is complied only, the plaintiff has to pay the balance sale consideration to get the sale deed executed. In fact, it is the defendant who dodged the issue without getting the land measured with the help of a Surveyor and Field Measurement Book. So, he did not comply his obligation prior to 06.08.2011. Even after that the plaintiff demanded the defendant several times to take necessary steps to execute a sale deed in terms of Ex.A.1 and he dodged the issue. That is why the plaintiff having waited for reasonable time, issued Ex.A.2 legal notice. Having received Ex.A.2 legal notice, he never denied the execution of Ex.A.1. He did not mention in reply that Ex.A.1 was materially altered. He did not dispute the receipt of advance sale consideration of Rs.9,00,000/- under Ex.A.1. Even in the written statement, he did not dispute the receipt of Rs.9,00,000/- and he did not plead the alleged material alteration. Even in the evidence of D.W.1, he did not depose that Ex.A.1 was materially altered and that he did not receive Rs.9,00,000/-. Without there being any basis, he developed the case at the time of cross examination of P.W.1. He failed to depose about the material alteration in his chief examination affidavit. The admissions made by D.W.1 in 16 cross examination shows his conduct. It is the defendant who breached the terms and conditions of Ex.A.1. He invited the attention of the Court the contents of Ex.A.1 and would contend further that the intention of the parties as to whether the time is the essence of the contract is to be looked into by looking into overall contents of Ex.A.1 and the surrounding circumstances. There is no mention in Ex.A.1 about any default clause in case the defendant failed to get the land measured. There is no default clause in Ex.A.1 in case the plaintiff failed to get the sale deed executed in his favour after defendant discharged his obligation in measuring the land. So, absolutely, the time is not the essence of the contract. Apart from this, the plaintiff was and is always ready and willing to perform his contract. It was the defendant who failed to get the land surveyed in pursuance of the terms and conditions of the agreement of sale.
19) He would rely upon a decision of Welspun Specialty Solutions Limited (formerly known as Remi Metals Gujarat Limited) vs. Oil and Natural Gas Corporation Limited 7 to contend that whether the time is of the essence in a contract, is to be culled out from the reading of the entire contract as well as the surrounding circumstances and merely having an explicit clause may not be sufficient to make time of the essence of the 7 (2022) 2 Supreme Court Cases 382 17 contract. The defendant failed to plead that Ex.A.1 was materially altered. He did not plead that he did not receive the amount of Rs.9,00,000/-. Even in Ex.A.3 reply, he did not plead all these aspects. Absolutely, the defendant had no tenable defence before the learned Principal District Judge, Srikakulam. The learned Principal District Judge, Srikakulam, rightly appreciated the evidence on record and rightly granted the decree of specific performance of agreement of sale.
20) He would further contend that as to whether the time is the essence of the contract and whether the plaintiff was and is always ready and willing to perform his part of contract are the interlinked aspects in the light of the terms and conditions in Ex.A.1. The citations relied upon by the learned counsel for the appellant as regards the contention that the plaintiff is not ready and willing to perform his contract has no application to the case on hand. Already the parties let in evidence keeping in view of their contentions and the learned Principal District Judge, Srikakulam, found favour with the case of the plaintiff. Hence, mere non-framing of any issue in this regard will not result into either remanding the matter to the trial Court or dismiss the suit of the plaintiff by allowing the appeal. In other words, his contention is that the decisions cited by the learned counsel for the appellant in this regard are not applicable to the present 18 situation. With the above submissions, he seeks to dismiss the appeal.
21) To decide as to whether the time is the essence of the contract and as to whether the readiness and willingness of the plaintiff is to be ascertained by looking into fact that as to whether the time is the essence of the contract or not, it is appropriate to refer here the substance of the contents in Ex.A.1. There is no dispute about the signatures of the plaintiff and the defendant to Ex.A.1. There is no dispute that P.W.2 was one of the attestors and P.W.3 was the scribe and D.W.2 was another attestor. As seen from Ex.A.1 schedule, it is relating to the plaint schedule property. The plaint schedule property is described as an extent of Ac.0-30 cents of land in Survey No.468/A surrounded by the boundaries East: dry land of Gangu Rajappadu, South: dry land of K. Neelayya, West: dry land of Gangu Tavitayya and North: water batti (rasta). So, literally, the contents of Ex.A.1 reveal that both the plaintiff and the defendant entered into an agreement on 07.05.2011 in respect of an extent of Ac.0-30 cents of dry land located in Survey No.468/A, situated in Killipalem Panchayat, Patha Srikakulam Rural. The land was said to be of the defendant according to Ex.A.1. The defendant agreed to sell away the same in favour of the plaintiff at the cost of Rs.65,000/- per cent. It further runs to the effect that the 19 defendant received an advance amount of Rs.9,00,000/-. It further stipulated that the defendant has to take necessary steps to get the schedule land surveyed with the assistance of Field Measurement Book and a Surveyor in the presence of the plaintiff within three months of the agreement i.e., by 06.08.2011 and on such survey, the plaintiff has to pay the balance sale consideration on the actual extent of land arrived at on account of the said survey so as to get the sale deed registered by paying the rest of the sale consideration.
22) Therefore, the terms of Ex.A.1 are not such that the plaintiff agreed to get the sale deed registered without getting the land surveyed by the defendant. Therefore, the contents of Ex.A.1 are such that the performance of obligation by the defendant to get the land surveyed and to arrive at the actual extent which is supposed to be sold is a condition precedent so as to enable the plaintiff to pay the rest of the balance sale consideration basing on the extent arrived at and to get the sale deed registered in his name. So, this is the tenor of the agreement of sale. To the specific legal notice issued on behalf of the plaintiff under Ex.A.2, the defendant thrown blame on the plaintiff stating that he moved around the plaintiff for a period of six months asking him to get the sale deed executed. Absolutely, Ex.A.3 reply notice is silent about the survey and on which date 20 he got the land surveyed with the help of the Field Measurement Book and a Surveyor in the presence of the plaintiff. Ex.A.3 reply did not throw any light in this regard. Even the written statement of the defendant is replica of the contents of the reply under Ex.A.3, as such, written statement of the defendant did not throw light about the survey and when the defendant got surveyed the land in the presence of the plaintiff. Curiously, even the chief examination of D.W.1 did not throw any light in this regard for the reason that the chief examination affidavit of D.W.1 is nothing but replica of the written statement. Hence, either in Ex.A.3 or in the written statement, the defendant did not deny the execution of Ex.A.1. As pointed out, he denied everything from para Nos.1 to 5. In the subsequent pleadings, virtually he admitted about the execution of agreement of sale.
23) Now, it is appropriate to look into the principles as to how the Court has to decide as to whether the time is the essence of the contract or not. In Saradamani Kandappan's case (1 supra), the Hon'ble Supreme Court at para Nos.23 and 28 held as follows:
23. In determining the question whether time is the essence of the contract, with reference to the performance of a contract, what generally may arise for consideration either with reference to the contract as a whole or with reference to a particular term or condition 21 of the contract which is breached. In a contract relating to sale of immovable property if time is specified for payment of the sale price but not in regard to the execution of the sale deed, time will become the essence only with reference to payment of sale price but not in regard to execution of the sale deed. Normally in regard to contracts relating to sale of immovable properties, time is not considered to be the essence of the contract unless such an intention can be gathered either from the express terms of the contract or impliedly from the intention of the parties as expressed by the terms of the contract.
28. The intention to make time stipulated for payment of balance consideration will be considered to be essence of the contract where such intention is evident from the express terms or the circumstances necessitating the sale, set out in the agreement. If, for example, the vendor discloses in the agreement of sale, the reason for the sale and the reason for stipulating that time prescribed for payment to be the essence of the contract, that is, say, need to repay a particular loan before a particular date, or to meet an urgent time-bound need (say medical or educational expenses of a family member) time stipulated for payment will be considered to be the essence. Even if the urgent need for the money within the specified time is not set out, if the words used clearly show an intention of the parties to make time the essence of the contract, with reference to payment, time will be held to be the essence of the contract.
24) Further the Hon'ble Supreme Court in Welspun Specialty Solutions Limited's case (6 supra) also categorically held that whether the time is of the essence in a contract is to be 22 culled out from the reading of the entire contract as well as the surrounding circumstances and merely having an explicit clause may not be sufficient to make time of the essence of the contract.
25) Now, as evident from Ex.A.1, it merely stipulates the time within which the parties have to take certain steps resulting into execution of sale deed by the defendant in favour of the plaintiff. The first step that was supposed to be taken by the defendant is to get the land measured with the help of Field Measurement Book and with a Surveyor in the presence of the plaintiff. In Ex.A.2, the plaintiff alleged default against the defendant. In Ex.A.3, the defendant alleged default against the plaintiff, but is silent about the survey and the date of survey, if any. During cross examination of P.W.1, the defendant did not put forth any theory on which date he secured the presence of the plaintiff to get the land measured. His entire cross examination was confined to the so-called corrections in Ex.A1. Absolutely, the defendant never ventured to suggest to P.W.1 that on a particular day he secured the presence of Surveyor with the Field Measurement Book and that on that particular day, the plaintiff was physically present and in his presence only the land was surveyed. Therefore, absolutely, the default attributed by P.W.1 in his evidence against the defendant remained unchallenged. Apart from the above, there is support to the 23 evidence of P.W.1 from the evidence of P.W.2 with regard to the default committed by the defendant to get the land surveyed.
26) The D.W.1, who is no other than the defendant, simply filed his chief examination affidavit extracting the contents of his written statement. Even his chief examination affidavit which is replica of the written statement did not throw light on which date prior to 06.08.2011 he got the land surveyed with the help of Field Measurement Book and a Surveyor in the presence of the plaintiff. Hence, D.W.1 did not depose anything in this regard. On the other hand, the plaintiff got sufficient cross examination of D.W.1 so as to impeach his testimony. During cross examination, D.W.1 deposed that as per the agreement, he called the surveyor to measure the petition schedule property in the presence of the plaintiff. He did not remember the name of the surveyor. In the month of July, 2011 the measurements of the petition schedule property process was taken place. He admitted that he did not mention the same in his written statement, reply notice and in his chief examination that he performed his part of agreement and taken steps for survey. He further deposed in cross examination that the Surveyor prepared the rough sketch of the petition schedule property and he (D.W.1) handed over the same to the plaintiff, but he has no copy with him. He denied that no surveyor measured the land as 24 per the terms of Ex.A.1 and he did not take any steps and he is deposing false.
27) It is to be noted that if really the defendant got the land surveyed, he would have mentioned the same in his Ex.A.3 reply and he would have pleaded the same in his written statement and further he would have deposed the same in his chief examination affidavit. He deposed in cross examination that there is no whisper in his reply notice, written statement and in his chief examination affidavit.
28) It is to be noticed that a surveyor cannot and shall not come to any property to measure the land without there being any application from the parties. So, getting the land surveyed by a party can only be on making proper application before the concerned Mandal Revenue Officer by paying necessary fee. The defendant did not specify even in cross examination when he made an application to survey the land and what was the name of the surveyor. If such survey was there, definitely, there would have been a survey report. Hence, the very defence of the defendant right from the reply, in the written statement as well as in his chief examination affidavit and in his cross examination, is nothing but evasive. The plaintiff is able to probabalize his contention that the defendant did not perform his part of contract to get the land surveyed prior to 06.08.2011. 25 Apart from this, there is no denial of the fact that Ex.A.1 did not specify as to what is the result in case the defendant failed to get the land surveyed before 06.08.2011 and in case the plaintiff failed to get the land registered upon discharge of the obligation by the defendant to survey the land. Absolutely, there is no default clause in this regard. The evidence on record means that the defendant did not take any initiative whatsoever prior to 06.08.2011 and thereafter to get the land surveyed. So, undoubtedly, the facts and circumstances and the conduct of the parties means that the time is not at all the essence of the contract. Apart from the circumstances as referred to above, basing on the evidence available on record, the contents of Ex.A.1 literally goes to prove that the time is not at all essence of the contract.
29) Now, I would like to deal with as to whether the defendant has knowledge of the contents of Ex.A.1 because it is his plea in the written statement that the plaintiff did not furnish the real transaction between him and the defendant. During cross examination, D.W.1 deposed that he is a graduate. He knows the contents of his chief examination affidavit which was read over to him by his counsel and he signed on it. He knows the nature of the suit filed against him by the plaintiff. He deposed that he agreed to sell the petition schedule property to the plaintiff by 26 fixing the rate of Rs.65,000/- per cent. It took place on writing on 07.05.2011 by way of agreement. The plaintiff got drafted Ex.A.1 and brought to his office and he signed the same at his office situated near Surya Mahal Theatre Junction, Srikakulam. He identified his signatures on Ex.A.1 at page 1 to 3.
30) D.W.2 during his chief examination admitted his signature on the suit agreement. Absolutely, the above admissions made by D.W.1 and D.W.2 go to prove that they have knowledge of the contents of Ex.A.1. Apart from this, the admissions made by D.W.1 in cross examination are such that he was given Xerox copy of the agreement of sale at the time of execution of Ex.A.1. In cross examination, he deposed that he has Xerox copy of agreement entered by him with the plaintiff which is in his custody and available in his house. He also went through the said Xerox copy given to him after the agreement for some time. It is true that the Xerox copy shown to him before the Court and copy available in his house is one and the same and the said Xerox copy is Ex.A.4. Apart from this, it is borne out from the record that when the plaintiff issued a notice to D.W.1 under Order XII Rule 8 of C.P.C. to file his Xerox copy, he produced the same before the Court and the contents thereof and Ex.A.1 are one and the same. So, the defendant would not have kept quiet, if the real transaction was not incorporated in Ex.A.1. 27 Therefore, all these go to prove that the knowledge of the contents of Ex.A.1 can fully be attributed to the defendant.
31) Now, this Court has to see as to whether the evidence on record proves that the plaintiff was and is always ready to perform his part of contract. As pointed out, the time is not the essence of the contract. The defendant was bound to get the land surveyed in the presence of the plaintiff, which this Court discussed elaborately and the defaulting party in this regard is the defendant. There is evidence of P.W.1 that the defendant did not comply the terms and conditions in Ex.A.1 and he did not get the land surveyed and he (P.W.1) issued Ex.A.2 legal notice for which the defendant gave Ex.A.3 reply with false contents. There is evidence of P.W.1 and P.W.2 to the effect that the plaintiff was and is always ready and willing to perform his part of contract. The contention of the defendant is that though he moved around the plaintiff for a period of six months, the plaintiff informed to him that he has no interest to get the sale deed executed and the said contention is not at all proved as this Court already pointed out.
32) The learned counsel for the appellant sought to rely upon three decisions as referred to above. Turning to Shenbagam's case (2 supra), the Hon'ble Supreme Court basing on the evidence available on record held that the plaintiff failed to 28 prove that he has been always ready and willing to perform his part of contract, as such, allowed the appeal by setting aside the judgment, dated 07.01.2019 of High Court of Judicature at Madras. It was also a case where the trial Court did not frame the issue as regards the readiness and willingness in the said case.
33) Turning to U.N. Krishnamurthy's case (4 supra) also the plaintiff failed to prove that he has been always ready and willing to perform his part of contract. The Hon'ble Supreme Court held that such things are to be proved by the plaintiff and failure to prove would result into dismissal of the suit.
34) Turning to another decision in V.S. Ramakrishnan's case (2 supra), the facts and circumstances were such that there was no issue as regards the readiness and willingness on the part of the plaintiff to perform his part of contract and the Hon'ble Supreme Court in that context of the facts remanded the matter to the trial Court to decide and to dispose afresh by framing an issue on the readiness and willingness on the part of the plaintiff to perform his part of contract.
35) Now, coming to the present case on hand, the plaintiff has pleaded that he has been always ready and willing to perform his part of contract. The defendant attributed default against the plaintiff in this regard and the defendant failed to 29 substantiate his contention and the evidence on record clinchingly proves that it is the defendant, who committed default in complying the terms and conditions in Ex.A.1 and undoubtedly he was a defaulting party. The cogent evidence adduced by the plaintiff would disprove the allegations made by the defendant. It is no doubt true that from the admissions of D.W.1 that he did not issue any legal notice to the plaintiff alleging that though he got surveyed the land with the help of the Surveyor and Field Measurement Book, the plaintiff was not coming forward to obtain a regular registered sale deed from the defendant. Apart from this, though there was no issue settled by the trial Court in this regard, but, the parties went on to adduce evidence keeping in view their pleadings and the trial Court gave finding that the plaintiff has been always ready and willing to perform his part of contract. It is not the contention of the appellant that he was prejudiced in his defence for non-framing of issue. Even the grounds of appeal did not disclose the same. When the evidence available on record clinchingly proves that the plaintiff has been ready and willing to perform his part of contract, the evidence does not warrants this Court to say that the plaintiff has not been willing to perform his part of contract. Apart from this, it is not a case even to remand the matter to the trial Court to frame any fresh issue and to permit the parties to adduce the evidence 30 because having got knowledge about the pleadings fully, the appellant and the respondent let in evidence before the trial Court in respect of their respective contentions with regard to the readiness and willingness of the plaintiff, I am of the considered view that the plaintiff categorically pleaded in the plaint averments his readiness and willingness and further proved the same with cogent evidence.
36) Now, another crucial factor that has to be considered is as to whether Ex.A.1 suffers with any material alteration. For the first time, during the cross examination of P.W.1, the defendant has come with such a plea. Before going to look into the cross examination part of P.W.1 and the evidence of D.W.1 in this regard, it is pertinent to look into the contents of Ex.A.1. In the third line of first page, there is a whisper that the advance amount was of Rs.9,00,000/-. Admittedly, it was a correction showing the original figure "two into nine". Similarly, coming to the second page also, there is a correction showing "two lakhs"
into "nine lakhs". When the plaintiff issued Ex.A.2 legal notice, the defendant in Ex.A.3 reply never pleaded that he did not receive advance amount of Rs.9,00,000/- and that he received only Rs.2,00,000/-. Apart from this, he never mentioned in his written statement that he received only Rs.2,00,000/- but not Rs.9,00,000/-. He never pleaded that Ex.A.1 was materially 31 altered. Even in chief examination also D.W.1 did not forward that Ex.A.1 was materially altered and that he received only Rs.2,00,000/-. The evidence of D.W.1 was subsequent to the cross examination of P.W.1. Therefore, what is evident is that the learned counsel for the defendant before the trial Court during cross examination canvassed a suggestion before P.W.1 that Ex.A.1 was affected with material alteration. It was without any basis from the pleadings. During cross examination, P.W.1 admitted that there is a correction of number "9" in the first page of Ex.A.1 at third line and there is no initial or signature of the defendant. He denied that the words "nine lakhs" was not written at the time of Ex.A.1 and that those were subsequently inserted. In second page of Ex.A.1 agreement, the words in Telugu "rendu"
are corrected as words "nine". He denied that the words "two" were corrected as "nine". It is to be noticed that P.W.3 is the scribe, who testified that he made necessary corrections. Even underneath Ex.A.1 at second page, the scribe categorically noted that there are two corrections in Ex.A.1. Apart from this, D.W.1 during cross examination admitted that he was served with copy of Ex.A.1 at the time of entered into Ex.A.1 agreement of sale and he admitted that the served copy of agreement of sale of him is under Ex.A.4 and the contents thereof and further the contents of Xerox copy of agreement of sale which he had in his custody 32 are one and the same. Apart from this, D.W.1 produced the copy of agreement of sale in his custody on a notice by the plaintiff during course of trial and it is available and even the contents thereof tallies with Ex.A.1. So, it is a case where even the Xerox copy of agreement of sale which the defendant produced before the trial Court shows that he received Rs.9,00,000/-. Therefore, it is replica of Ex.A.1. So, what is evident is that though Rs.2,00,000/- was mentioned in Ex.A.1, later the scribe corrected it with proper initials and the defendant never disputed that he received Rs.9,00,000/-. Hence, the contention of the defendant that Ex.A.1 was materially altered is without any basis from Ex.A.3 reply, from the contents of the written statement and even from the contents of his chief examination affidavit. Therefore, what all suggested to P.W.1 during cross examination is without any basis whatsoever which deserves no merits.
37) Turning to two decisions cited by the learned counsel for the appellant in Janab M.H.M. Yakoob's case (5 supra) and S.K. Panchaksharam Mudaliar's case (6 supra), the evidence on record proves that there was a material alteration. Here, the appellant miserably failed to probabalize his contention that Ex.A.1 was materially altered. The said two decisions are not helpful to the case of the defendant in any way.
33
38) Coming to the contention of the appellant/defendant in his written statement that Ex.A.1 agreement of sale was compulsorily registrable, as such, it is invalid, it deserves no merits. An agreement of sale though was compulsorily registrable, but, it can be admitted in evidence in a suit for specific performance in view of the proviso of Section 49 of the Registration Act, 1908.
39) As evident from the pleadings of the defendant and the evidence of D.W.1, his contention is that as the plaintiff did not adhere to the contents of Ex.A.1, now the value of the property is to be considered as on the date of registration of the sale deed. Therefore, the obvious contention of the defendant is to avoid his part of contract by claiming that he is entitled to the amount from the plaintiff considering the value of the property as on the date of the registration of the sale deed. As defendant is defaulting party and as received Rs.9,00,000/- way back on 07.05.2011 by way of advance sale consideration, his contention in this regard is devoid of merits. Though the relief of specific performance is discretionary, but the evidence on record does not show any equitable circumstances in favour of the defendant. The conduct of the defendant is such that it is he who violated the terms and conditions of Ex.A.1. It is not a case where Ex.A.1 was entered into with oppressive conditions. Having looked into 34 the above, I am of the considered view that the relief sought for by the plaintiff is not hit under the principles of equity.
40) The learned Principal District Judge, Srikakulam looked into the pleadings of the parties and the evidence on record and further looked into the contents of Ex.A.1 and rightly analyzed the evidence on record. The learned Principal District Judge, Srikakulam with sound reasons decreed the suit of the plaintiff. Viewing from any angle, I am of the considered view that the plaintiff before the learned Principal District Judge, Srikakulam, absolutely, proved his entitlement to claim a decree of specific performance of agreement of sale pursuant to Ex.A.1, as such, the judgment and decree, dated 29.06.2017 in O.S.No.37 of 2013, on the file of Principal District Judge, Srikakulam, is sustainable under law and facts and there are no grounds to interfere with the same.
41) As evident from the judgment of the learned Principal District Judge, Srikakulam in the result portion the defendant was directed to execute the registered sale deed in respect of the plaint schedule property within three months from the date of judgment after receiving the balance sale consideration amount. In the second limb, it was directed that if the defendant fails to execute the registered sale deed, the plaintiff is at liberty to get it registered under due process of law after depositing the balance 35 sale consideration into Court within three months. Therefore, if the result portion is interpreted positively, it means that the time of six months was granted to execute the registered sale deed. The general procedure in a suit like specific performance is to direct the plaintiff to deposit the balance sale consideration into Court within a time bound schedule and thereupon, to direct the defendant to execute the registered sale deed. There is no information from the record of the trial Court as to whether the plaintiff deposited the balance sale consideration. However, as evident from the proceeding sheets, it appears that already the respondent/plaintiff filed an Execution Petition No.378 of 2021 on the file of Principal District Judge, Srikakulam and as of now there is stay. Hence, it means that the respondent/plaintiff deposited the balance sale consideration before the learned Principal District Judge, Srikakulam. So, no need to give further directions as regards the deposit of the balance sale consideration. Point No.3:
42) In the result, the Appeal is dismissed with costs confirming the judgment and decree, dated 29.06.2017 in O.S.No.37 of 2013, on the file of Principal District Judge, Srikakulam.36
Consequently, miscellaneous applications pending, if any, shall stand closed.
________________________ JUSTICE A.V. RAVINDRA BABU Dt. 27.07.2023.
PGR 37 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU APPEAL SUIT NO.956 OF 2017 Date: 27.07.2023 PGR