Andhra Pradesh High Court - Amravati
Jagarlamudi Srinivasa Rao And Anothers vs Vintha Gopireddy And 5 Others on 31 July, 2025
APHC010638712013
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3524]
(Special Original Jurisdiction)
THURSDAY,THE THIRTY FIRST DAY OF JULY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM
FIRST APPEAL NO: 15/2013
Between:
1. JAGARLAMUDI SRINIVASA RAO AND ANOTHERS, SON OF
VENKATESWARLU, HINDU, AGED ABOUTE37 YEARS, OCC:BUSINESS,
RESIDENT OF.D.NO.16-22-21, OLD GUNTUR, GUNTUR DISTRICT.
2. DHULIPALLA VENKATESWARA RAO,, SON OF MALLIKHARJUNA RAO,
AGED ABOUT:49 YEARS, OCC: BUSINESS, RESIDENT OF
VENKATAKRISHNAPURAM VILLAGE, PEDAKAKANI MANDAL, GUNTUR
DITRICT. [BOTH REPRESENTED BY THEIR G.P.A. HOLDER MOHD. JAVID,
SON OF ABDUL RAHMAN]
...APPELLANT(S)
AND
1. VINTHA GOPIREDDY AND 5 OTHERS, SON OF VENKATAPPAREDDY,
AGED ABOUT 66 YEARS, OCC: BUSINESS, RESIDENT OFIP.NO.6-226,
MANGALAGIRI, GUNTUR DISTRICT.
2. GUNTAMUKKALA VENKATASWAMY DIED,
3. GUNTUMUKKALA RAMULAMMA, W/O VENKATASWAMY,
4. GUNTUMUKKALA PULLARAO, S/O VENKATASWAMY,
5. GUNTUMUKKALA SRINIVASA RAO, S/O VENKATASWAMY,
6. GUNTUMUKKALA NAGABHUSHANAM, S/O VENKATASWAMY,
...RESPONDENT(S):
to allow the appeal by setting aside the judgment and decree dt. 29-08-2012
passed by the court of the District Judge, Guntur in OS.No.56/2010, and decree the
suit with costs in favour of the appellants/ plaintiffs and pass.
IA NO: 1 OF 2013(ASMP 45 OF 2013
Petition under Section 151 CPC praying that in the circumstances stated in the
affidavit filed in support of the petition, the High Court may be pleased to direct the 1st
2
respondent herein not to alienate the suit schedule property in OS.NO.56/2010 on the
file of the court of District Judge, Guntur and pass.
IA NO: 1 OF 2015(ASMP 1815 OF 2015
Petition under Section 151 CPC praying that in the circumstances stated in the
affidavit filed in support of the petition, the High Court may be pleased to vacate the
interim order dt.12.12.2013 passed in AS MP No.45 of 2013 in AS No.15 of 2013 and
dismiss the appeal.
IA NO: 2 OF 2015(ASMP 2133 OF 2015
Petition under Section 151 CPC praying that in the circumstances stated in the
affidavit filed in support of the petition, the High Court may be pleased to grant leagve
to the petitioner to file the copy of corrected General Power Attorney which is filed
herewith and may be taken on record
IA NO: 1 OF 2017(ASMP 16706 OF 2017
Petition under Section 151 CPC praying that in the circumstances stated in the
affidavit filed in support of the petition, the High Court may be pleased
IA NO: 1 OF 2024
Petition under Section 151 CPC praying that in the circumstances stated in the
affidavit filed in support of the petition, the High Court may be pleased to permit the
petitioners/plaintiffs to amend the prayer portion of the plaint after para VII) (a) by
including the alternative relief for a decree for refund of advance amount of Rs.
16,50,000/- with subsequent interest at 12% per annum from the date of agreement,
i.e., 16.12.2006 till date of realization in the interest of justice Else, the petitioners
suffer irreparable loss and injury. The Hon'ble Court may be pleased to permit the
petitioners to carry out consequential amendment of the plaint as follows.
CONSEQUENTIAL AMENDMENT: (i) In the prayer portion of the amended plaint in
OS.No.56/2010 after main relief at para VII) (a) the following alternative relief to be
included. (or) Alternately to pass a decree for Rs. 16,50,000/- (Rupees Sixteen Lakhs
and Fifty Thousand Only) directing defendant to pay to the plaintiffs being the refund
of advance amount paid under the agreement of sale, dated 16.12.2006 with
subsequent interest at 12% per annum from the date of agreement of sale till
realization.
Counsel for the Appellant(S):
1. VENKAT CHALASANI
2. ALI FAROOQUE
Counsel for the Respondent(S):
1. RAMA CHANDRA RAO GURRAM
The Court made the following:
3
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM
APPEAL SUIT No.15 of 2013
JUDGMENT:(Per Hon'ble MRK, J) Heard Sri Ch. Venkaiah, learned counsel representing the learned counsel for the appellants/plaintiffs and Sri G. Rama Chandra Rao, learned counsel for the 1st respondent/defendant. None appeared for respondent Nos.3 to 6/plaintiff Nos.4 to 7.
2. The instant first appeal is instituted by the appellants / plaintiff Nos.1 and 2 being aggrieved by the Decree and Judgment dated 29.08.2012 passed in O.S.No.56 of 2010 on the file of the Court of District Judge, Guntur, wherein, the suit for specific performance of Agreement of Sale dated 16.12.2006 was dismissed against the 1st respondent/defendant, arraying the sole defendant as 1st respondent herein, and 3rd plaintiff, who died and his legal representatives as respondent Nos.2 to 6 in the instant appeal before this Court.
3. For the sake of convenience, the parties are hereinafter referred to by their nomenclature, before the Trial Court.
Brief Case of the appellants/plaintiffs:
4. The brief case of the plaintiffs is that the sole defendant is the owner of the Suit Schedule Property having purchased the same under Registered Sale 4 Deed bearing document No.5234/2003, dated 26.08.2003 and he has been in peaceful possession and enjoyment of the same. It is further the case of the plaintiffs that the defendant himself offered to sell the Schedule Property to which the plaintiffs have agreed. Accordingly, on 16.12.2006, defendant executed a sale agreement in favour of the plaintiffs for a valid consideration of Rs.66,00,000/- out of which plaintiffs paid an amount of Rs.16,50,000/-, which the defendant has received the same and endorsed in the sale agreement.
5. It is further the case of the plaintiffs that according to the terms of the agreement dated 16.12.2006, plaintiffs have to pay balance of sale consideration of Rs.49,50,000/- to the defendant within two months, upon which defendant was obliged to execute registered Sale Deed in favour of the plaintiffs. It is also agreed that if the plaintiffs fail to perform their part of contract within the stipulated time, they have to pay an interest of 12% per annum on the balance sale consideration for the period of delay. It is also the case of the plaintiffs that the defendant has agreed to measure the Schedule Property under Agreement of Sale dated 16.12.2006 and receive the balance sale consideration as per the extent arrived.
6. According to the plaintiffs, they have approached the defendant several times and sought the defendant to receive the balance of consideration and register the Sale Deed, but the defendant postponed the same on one context or another and did not co-operate for the same. It is further the case of the plaintiffs that the defendant has shown them the Schedule Property under Agreement of Sale dated 16.12.2006 as a square shape plot. However, on 5 enquiry, plaintiffs came to know that the said property is in triangular shape. When the plaintiffs questioned the defendant about the same, the defendant issued Legal Notice dated 11.05.2007 with false allegations, for which the plaintiffs issued Reply Notice dated 23.05.2007, expressing their willingness and intention to pay balance sale consideration and obtain Registered Sale Deed, after the defendant got the land surveyed and fix the boundary stones in a square shape, but the defendant did not co-operate. Hence, the plaintiffs instituted the lis seeking for specific performance of the Agreement of Sale dated 16.12.2006 against the defendant, including delivery of possession of the same.
Brief case of the 1st respondent/defendant:
7. On the other hand, defendant filed Written Statement denying material allegations made in the plaint, while admitting the execution of sale agreement for Rs.66,00,000/- and also agreeing to receive the balance sale consideration of Rs.49,50,000/- within two (2) months to execute registered Sale Deed after getting it measured. According to the defendant, he never approached the plaintiffs with an offer to sell the suit schedule property and when he intended to sell the said property to meet his legal necessity, the plaintiffs having come to know about it, approached the defendant and visited the Suit Schedule Property, verified the title and possession and negotiated with the defendant.
8. It is further the case of the defendant that on the date of agreement itself, he made it clear to the plaintiffs that time is the essence of the Agreement of 6 Sale as he was selling the property to meet urgent legal necessity, but the plaintiffs did not comply with the terms and conditions of Agreement of Sale. Subsequently on 11.05.2007, the defendant issued Legal Notice demanding the plaintiffs to pay balance sale consideration and obtain registered Sale Deed, to which the plaintiffs issued a reply with false allegations. It is also the case of the defendant that it was the plaintiffs, who caused the delay and approached the Court by filing the suit for specific performance just before the date of expiry of the limitation.
9. It is apt to mention that during pendency of the suit, plaintiff No.3 (G.Venkata Swamy) died and his legal representatives were brought on record as plaintiff Nos.4 to 7 vide orders dated 03.03.2011 in I.A No.190 of 2011. Consequently, amended plaint was filed by adding the plaintiff No.3 legal representatives. In contrary, additional written statement was filed inter alia contending that the legal representatives filed neither Legal Heir Certificate nor Family Member Certificate.
Findings of the Trial Court:
10. By considering the pleadings, the Trial Court framed the following issues:
1) Whether time is the essence of contract of sale?
2) Whether the plaintiffs are always ready and willing to perform their part of the contract from the date of agreement till filing suit?
3) Whether the plaintiffs are entitled to a decree for specific performance of agreement of sale dated 16.12.2006?7
11. It is apt to state that plaintiff No.1 was examined as P.W.1, 2 nd attestor in Ex.A-1, dated 16.12.2006 was examined as P.W.2. Agreement of Sale dated 16.12.2006 was marked as Ex.A-1, office copy of Legal Notice dated 11.05.2007 issued by the defendant to plaintiffs was marked as Ex.A-2 and Reply Notice dated 23.05.2007 & its postal acknowledgment dated 24.05.2007 were marked as Ex.A-3 and Ex.A-4. On the other hand, the sole defendant was examined himself as D.W-1, the 1st attestor of Ex.A-1 was examined as D.W-2 and third party was examined as D.W-3, during the suit proceedings.
12. The Trial Court in respect of Issue No.1 (Whether time is the essence of contract of sale) held in favour of the plaintiffs. The remaining Issue Nos. 2 and 3 were held in favour of the defendant. Consequently, the suit was dismissed vide Judgment and Decree dated 29.08.2012 in O.S.No.56 of 2010 by the learned District Judge, Guntur. Challenging the same, plaintiff Nos.1 and 2 arraying the sole defendant as the 1st respondent and the 3rd plaintiff and his legal representatives as respondent Nos.2 to 6, instituted the instant Appeal before this Court.
Submissions on behalf of the appellants/plaintiffs:
13. Learned counsel for the appellants, advanced arguments that the impugned judgment is unjustified, perverse, contrary to the law and the material on record.8
13.1 Learned counsel for the appellants/plaintiffs contended that having correctly held that Issue no.1, which pertains whether the time being essence of contract of sale, ought to have allowed the suit.
13.2 Learned counsel invited our attention to the terms of Agreement of Sale (Ex.A-1) and submitted that there is no term in the Agreement to cancel the sale in the event of failure by the parties to the contract, the agreement continuously bind the parties and it has to be enforced in an appropriate manner without giving go by.
13.3. Learned counsel for the appellants/plaintiffs asserted that before paying the balance sale consideration, the defendant has to measure the Schedule Property under Ex.A-1 to determine the actual amount of sale consideration as per measurements (taking measurement and fixing boundaries of Schedule Property is pre-condition for payment of balance sale consideration). Since, the defendant himself evaded to get the land measured because of which, the plaintiffs were not able to perform their part of the contract.
13.4 Learned counsel for the appellants/plaintiffs also submitted that the plaintiffs were always ready and willing to pay the balance sale consideration and to obtain registered Sale Deed and that plaintiffs have already paid substantial amount of Rs.16,50,000/- on 16.12.2006 towards payment at the time of execution of Agreement of Sale, out of the total sale consideration of Rs.66,00,000/-.9
13.5 Learned counsel further submitted that the findings of the learned Trial Court regarding the financial capacity of the plaintiffs is based on mere surmises, conjectures and contrary to the material on record and submitted that plaintiffs pooled the amount for sale consideration, but used it for their personal purpose. Subsequently, the defendant did not conduct the survey of the land to ascertain the extent of land and that the findings of Trial Court with regard to the pooling up of the resources, is not relevant to the facts in question.
13.6. Learned Counsel contended that the trial court ought to have granted Ordinary Rule that is specific performance as held in Prakash Chandra Vs. Angadlal and Ors1, since they acted fairly throughout the whole time. He placed reliance on P.D'Souza Vs Shondril Naidu2 and N.Tyagaraju and Others Vs Narayana Swamy and Ors3., wherein it is held that the defendant cannot take advantage of his own wrong and the conduct of the defendant cannot be ignored, while adjudicating specific performance suit.
13.7. Concerning to the alternative relief of amount paid by the plaintiffs, learned counsel urged that the Trial Court while refusing to grant main relief of specific performance of agreement to sell, should have directed the defendant to return the amount of Rs.16,50,000/- with 12% interest, which was paid on 16.12.2006 at the time of execution of Agreement of Sale as the receipt of the said amount was not at all disputed by the defendant.1
1979 (SC) 1241 2 AIR 2004 SC 4472 3 2014 (2) ALT 540 10 Submissions on behalf of the 1st respondent/defendant:
14. Learned counsel for the 1st respondent/defendant submitted that the plaintiffs suppressed the true material facts and filed the suit with false and untenable allegations, came to the court with unclean hands for an equitable relief of specific performance.
14.1 Learned counsel for the 1st respondent/defendant contended that on the date of Agreement of Sale itself, the defendant had clearly and categorically stated that the time is the essence of the Agreement of Sale and that he was selling the same to meet the educational expenses of his paternal granddaughter and the plaintiffs have agreed to the same by assuring the defendant that they would pay the balance sale consideration as per the terms and conditions of the Agreement of Sale within two months of date of Agreement.
14.2. Learned counsel for the 1st respondent/defendant contended that in view of the failure of plaintiffs to comply the terms and conditions of the Agreement of Sale (Ex.A-1), the defendant and his family members have suffered a multifarious loss. Hence, the defendant issued a Legal Notice dated 11.05.2007 to the plaintiffs by mentioning the terms of Agreement of Sale and demanded them to pay the balance sale consideration within a week, from the date of receipt of the said Notice to obtain registered Sale Deed and further informed the plaintiffs in the said Legal Notice that Agreement of Sale between the plaintiffs and defendant will stand cancelled and the amount of Rs.16,50,000/- paid by the plaintiffs will be forfeited.11
14.3. Learned counsel for the 1st respondent/defendant further submitted that both the parties agreed to the terms of Agreement of Sale dated 16.12.2006(Ex.A.1), wherein the balance sale consideration shall be paid within two months, from the date of execution of Sale Agreement, which is the first part of the obligation to be complied by the plaintiffs and thereby the defendant has to get the land measured and execute regular Sale Deed. So, he submits that unless the obligation on the part of the plaintiffs is not complied, the question of compliance of obligation by the defendant does not arise, since the payment of balance sale-consideration is a pre-requisites.
14.4. Learned counsel for the 1st respondent/defendant asserted that the plaintiffs were never ready and willing to perform their part of obligation at any point of time from the date of execution of Agreement of Sale. He also asserted that the plaintiffs have no means or source of income or any financial capacity or status to pool the money sufficient to pay the balance sale consideration.
Moreover, the plaintiffs are trying to evade their part of obligations on one context or another and invented story on shape of the property. 14.5. Counsel for the 1st respondent/defendant also argued that the defendant himself issued Legal Notice (Ex.A-2) dated 11.05.2007, demanding the plaintiffs to pay the balance sale consideration within one week, to which, plaintiffs gave Reply Notice dated 23.05.2007. Subsequently, the plaintiffs filed the suit in the year 2010, which further demonstrates their lack of readiness and willingness and diligence. In support of his submissions, the learned counsel 12 cited the dictums held in Rajesh Kumar Vs Anand Kumar & Ors4, wherein the Hon'ble Supreme Court relying on precedents such as K.S Vidyanadam5, Azhar Sultana6, Saradamani Kandappan7 and Atma Ram8 held that the plaintiff was not entitled to specific performance due to inordinate delay. Basing on the said decision, the learned counsel submits that even though the suit was technically filed within the limitation period, the delay in filing and the plaintiffs lack of prompt action demonstrates their lack of readiness and willingness. 14.6. Learned counsel contended that even if we assume that defendant has breached the contract, plaintiffs have not substantiated their plea of ready and willingness to perform their part of obligations and hence they are not entitled to the relief of the specific performance, for which, he placed reliance on Man Kaur (Dead) Vs. Hartar Singh Sangha9, wherein, the Apex Court held that the plaintiff must clearly state and prove readiness and willingness to perform his part of the contract and if he fails to show the same, he is not entitled to get relief of specific performance.
14.7. At last, the learned counsel for the 1st respondent/defendant summarized that the Trial Court reasoning with regard to Issue Nos.2 & 3 is correct.
4 2024 SCC OnLine SC 981 5 (1997) 3 SCC1 6 (2009) 17 SCC 27 7 (2011) 12 SCC 18 8 (2020) 3 SCC 311 9 (2010) 10 SCC 512 13 Analysis:
15. After perceiving the above rival contentions of both the parties, the following points arise for adjudication in the instant lis:-
(1) Whether time could be said to be the essence of Agreement of Sale (Ex.A-1)?
(2) Whether the plaintiffs were always ready and willing to perform their obligations?
(3) Whether the plaintiffs are entitled for the alternative relief of refund of advanced money under Ex.A-1 or not?
16. In order to answer the core issues involved in the present lis, it may be appropriate to tabulate the primary date of events as under:-
Serial Description of Events Date No.
1. Execution of Agreement to Sale 16.12.2006 Payment made by the
2. appellants/plaintiffs as bayana 16.12.2006 amount Rs.16,50,000/-
According to the Sale Agreement dated 16.12.2006 will realize/expire on (i.e. 60 days from
3. 14.02.2007 the date of agreement entered within which the plaintiffs have to pay balance sale consideration) Issuance of Legal Notice issued
4. 11.05.2007 by the 1st respondent/defendant Reply Notice issued by the
5. 23.05.2007 appellants/plaintiffs Date of filing of suit in O.S No.56
6. 15.02.2010 of 2010
17. At the threshold, it is apt to note that legislative amendments i.e., Act 18 of 2018 to the Specific Relief Act, 1963 is prospective in nature and it cannot be 14 construed to affect rights or obligations arising from transactions completed before the amendment came into force. Applying the amended provisions retrospectively would not only contravene the principle of legality but also result in undue hardship to the parties involved.
18. Before going through the analysis in the instant issue, it is apt to extract the recitals made in Agreement of Sale dated 16.12.2006 (Ex-A.1), for the sake of comprehensive view:-
".......I have purchased an extent of Ac.2-00 cents from Desiboyina Nallaiah and others by and under a registered sale deed, dated 26.08.2003, bearing document No.5234/2003 of Sri Mangalagiri Sub-Registrar and same is in my possession and enjoyment and for the benefit of my family, I offered to sell the same and you came forward to purchase and as such same is sold to you for Rs.66,00,000/- for Ac.2-00 cents at the rate of Rs.33,00,000/- for Ac. 1-00 cents. Out of said Rs.66,00,000/- (Rupees Sixty Six Lakhs Only) you paid an amount of Rs. 16,50,000/- (Rupees Sixteen Lakhs and Fifty Thousand Only) cash at the time of preparation of this agreement of sale before the attestors mentioned below, and I received the same. It is agreed that the remaining sale consideration of Rs.49,50,000/- (Rupees Forty Nine Lakhs and Fifty Thousand Only) to be paid within two months from today. If you fail to pay the balance sale consideration within the period fixed, you have to pay the interest at the rate of Rs.1/- per hundred per month on the remaining sale consideration and get the sale deed registered. After making said remaining sale consideration ready and when you invite me for registration if I postpone the same and if I demand more amount, you are at liberty to take legal action against me and I will be completely responsible for the same. I have not created any alienations of subject property till date. This sale agreement is executed with my own volition......."
SCHEDULE Gunturu District within the limits of Mangalagiri Sub- Registrar, Mangalagiri Mandal, an extent of Ac.2-00 15 cents, out of total extent of Ac. 3-36 cents, bearing D.No.184/1, RS.No.184/1B of Chinakakani Village, within the limits of Chinakakani Grama Panchayat area in which I have got right and sold to you and it is bounded by as follows:-
East : Others land
South : Government Donka
West : Railway margin
Boundary
North : Others land
Within these boundaries an extent of Acres 2.00 cents or 0.80 hectares dry raised (meraka) land, is sold to you, along with all the old traditional and easementary rights. The said land shall be handed over by conducting survey and demarcating the boundaries by the time of registration. The condition is that the amount payable shall be at the rate as agreed above, for the area determined as per the revenue records. I shall handover the vacant possession of the said land by the time of registration. I shall handover the complete record of the said land.
Witness:
1. Sd/- Ponnekanti Purna Chandra Rao
2. Sd/- Satish Kumar Point No.1:
19. The first point for determination is as to whether time could be construed to be the essence of the Agreement of Sale dated 16.12.2006?
20. In matters relating to sale of immovable property, there is a general presumption that time is not considered to be the essence of contract, unless it is explicitly stated in the contract or inferred from the circumstances surrounding the agreement. However, it is apposite to note the well settled legal principles 16 set out by the Hon'ble Supreme Court in Govind Prasad Chaturvedi v. Hari Dutt Shastri10, held at page Nos.543-544 as under:-
"......5. It is settled law that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. When a contract relates to sale of immovable property it will normally be presumed that the time is not the essence of the contract. [Vide Gomathinayagam Pillai v. Pallaniswami Nadar (1967) 1 SCR 227, AIR 1967 SC 868 (at p. 233).] It may also be mentioned that the language used in the agreement is not such as to indicate in un-mistakable terms that the time is of the essence of the contract. The intention to treat time as the essence of the contract may be evidenced by circumstances which are sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of the contract."
21. In Roque Fredrick Ladinho Collasso and Ors. vs. Camilo Antonio Aquaviva and Ors11, the Apex Court had held as follows:-
"......8. As a general proposition of law, in the case of sale of immovable property there is no assumption as to time being the essence of contract. In cases where it is not made an essence of the contract the Court may infer that it is to be performed in a reasonable time, if the conditions are evident from the expressed terms of the contract, the nature of the property and the surrounding circumstances. In cases where it is specifically stipulated that time will be an essence of contract or that it clearly emerges so by way of implication, time would be an essence of contract. Such situations are exception to the well accepted principle that in case of sale of immovable property time is never regarded as essence of contract and presumption existing against the same. However, if the parties intend to make time as essence of contract it must be expressed in unequivocal language. Intention to make time as the essence, if expressed in writing must be in language which is unmistakable; it may also be inferred from nature of the property agreed to be sold, conduct of the parties and surrounding circumstances prevailing at the time of the contract. Section 55 of the Contract Act provide for effect of 10 (1977) 2 SCC 539 11 MANU/MH/0587/2021 17 failure to perform the contract at a fixed time where time is essential. In cases where the time is the essence of contract and is so stipulated in writing, the extension if any should and ought to be categorical in nature rather then being vague or based on presumption and would not contemplate the unilateral extension......."
22. Thus, the above mentioned legal position establishes the fact that in the agreements for sale of immovable property, time is generally not considered as essential, unless it is clearly mentioned in unequivocal language.
23. Reverting to the case on hand, undisputedly, Agreement dated 16.12.2006 (Ex.A-1) was executed in favour of the plaintiffs, under which the defendant agreed to sell the schedule property for a total consideration of Rs.66,00,000/- (Rupees Sixty Six Lakhs only) and received an advance amount of Rs.16,50,000/-. It was further agreed that the plaintiffs would pay the balance sale consideration of Rs.49,50,000/-, within a period of two (2) months from the date of execution of Agreement of Sale i.e., 16.12.2006. In the said Agreement, all that parties agreed to was as follows:-
"The remaining amount of Rs.49,50,000/- is to be settled within two months from this date. If you fail to pay the remaining balance sale consideration, then you have to pay the interest at the rate of Rs.1/- per hundred per month on the remaining sale consideration and get the sale deed registered."
24. It is evident from a plain reading of Ex.A-1, that it does not contain any clause relating to termination, instead it provides for payment of interest for the 18 period of delay and to get the sale deed registered, which indicates that the parties did not intend time to be the essence of the sale of agreement.
25. Apropos to argument whether time being the essence of the Agreement of Sale, defendant asserted that he has clearly stated about his intention about time being essence of the contract so he has to pay donation for securing M.B.B.S Seat for his maternal granddaughter, while the plaintiffs on other hand contends that they were not aware of the same.
26. At this juncture, it is pertinent to note that there was no mention in the Agreement of Sale (Ex.A-1) about the payment of donation fees being the purpose and intention behind the sale of schedule property. Furthermore, the defendant himself admitted during the Cross-Examination that it was not mentioned in Agreement of Sale (Ex.A-1) regarding sale of land in order to secure the money for payment of donation towards the education of his granddaughter. Even assuming the contention of the defendant is true, there was no condition in Ex.A-1 with regard to termination in the event of default in paying the balance sale consideration within the stipulated time, nor any provision for forfeiting the advance amount paid by the plaintiffs.
27. Therefore, in view of the above discussion, this Court is of the opinion that the time was not the essence of the Agreement of Sale (Ex.A-1) and that the Trial Court has rightly held point No.1 about the same in favour of the plaintiffs and against the defendant.
19Point No.2:
28. The second point that arise for consideration is as to whether the plaintiffs were always ready and willing to perform their part of the obligations under Agreement of Sale (Ex.A-1).
29. In order to obtain a decree for specific performance, plaintiffs must aver and prove that they performed their part of the contract and have always been ready and willing to perform the terms of the contract, which are to be performed by them.
30. The Hon'ble Supreme Court in the case of N.P. Thirugnanam Vs. R. Jagan Mohan Rao (Dr)12, while reiterating that the remedy of specific performance is equitable in nature and that granting or refusing specific performance is within the discretion of the court, had the occasion to observe as under:
".......5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act, 1963 (for short 'the Act'). Under Section 20, the court is not bound to grant the relief just because there was a valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the 12 (1995) 5 SCC 115 20 same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract........."
31. In Sangitha Sinha Vs. Bhawana Bhardwaj and Ors13 the Apex Court, had held as under:-
"......16. It is settled law that under the Act, 1963, prior to the 2018 Amendment, specific performance was a discretionary and equitable relief. In Kamal Kumar vs. Premlata Joshi and Ors., (2019) 3 SCC 704, which has been followed in P. Daivasigamani vs. S. Sambandan, (2022) 14 SCC 793, this Court framed material questions which require consideration prior to grant of relief of specific performance. The relevant portion of the judgment in Kamal Kumar (supra) is reproduced hereinbelow:
"7. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are:
7.1. First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property.
7.2. Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract.
7.3. Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has 13 (2025 INSC 450) 21 performed and whether such performance was in conformity with the terms of the contract;
7.4. Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff;
7.5. Lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money, etc. and, if so, on what grounds.
8. In our opinion, the aforementioned questions are part of the statutory requirements [See Sections 16(c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and Forms 47/48 of Appendices A to C of the Code of Civil Procedure]. These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts."
17. It is trite law that 'readiness' and 'willingness' are not one but two separate elements. 'Readiness' means the capacity of the Respondent No.1 buyer to perform the contract, which would include the financial position to pay the sale consideration. 'Willingness' refers to the intention of the Respondent No.1-buyer as a purchaser to perform his part of the contract, which is inferred by scrutinising the conduct of the Respondent No.1-buyer /purchaser, including attending circumstances......"
32. In C.S. Venkatesh Vs. A.S.C. Murthy14, the Apex Court on a consideration of various decisions culled out what is implied by the words "ready and willing" has held as under:
"16. The words 'ready and willing' imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The 14 (2020) 3 SCC 280 22 continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available.
Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract.
33. Therefore, in view of the above authoritative judicial dictums, there is clear distinction between "readiness" and "willingness". Readiness refers to the buyer's ability to perform the contract, including financial ability to pay the sale consideration. While "willingness" refers to buyer's intention to fulfil his obligation under contract, which can be understood by examining his conduct along with surrounding circumstances.
34. Coming to the instant appeal, with regard to the issue of readiness and willingness, the defendant contended that the plaintiffs have neither any source of income, financial capacity, status to pool up the sufficient money nor having any intention to perform their obligations, because the plaintiffs were evading to perform their obligations on one context or another by claiming vasthu and the shape of the suit schedule property. Whereas, the plaintiffs denied the allegations saying that they were always ready and willing to perform their part of contract, but it was due to the act of the defendant they were unable to do the same.
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35. At this juncture, it is relevant to note that in the cross examination of P.W-1, (1st plaintiff), he himself agreed that the 2nd plaintiff is known as Bullet Venkateswara Rao, run a mechanic shop at Kothapet, Guntur and his brother is another motor cycle mechanic. Insofar as plaintiff No.3 is concerned, P.W-1 stated that he is an agriculturist aged about 65 years, but denied that the 3rd plaintiff only owns 2 ½ acres of land, whereas, he is carrying out sub-contract business with annual turnover of Rs.10,00,000/- and his approximate income of Rs.1,50,000/-. Even though P.W-1 stated in the cross-examination that he was an Income Tax Assesse and regularly filing tax returns, he did not choose to file his Income Tax Returns or any documents, which demonstrates the financial stability. Thus, we reasonably infer that the plaintiffs are not having enough financial capacity.
36. A mere assertion in the plaint that they were always ready and willing to pay the balance sale consideration of Rs.49,50,000/- along with oral evidence to that effect, is not by itself sufficient. Moreover, plaintiffs claimed that they pooled up balance sale consideration, even though there is no written proof available to show pooling-up of the balance sale consideration. It was also admitted by P.W-1 during his cross-examination that the pooled amount was used for personal needs
37. As mentioned in N.P. Thirugnanam Vs. R. Jagan Mohan Rao (Dr) case above, plaintiffs must demonstrate continuous readiness and willingness from the date of Agreement of Sale (Ex.A-1) up to the date of decree through their conduct, availability of funds and other attending circumstances. Here in the 24 present case even if we assume that the plaintiffs have pooled up the money, they themselves agreed that it was used for personal purposes even before the date of decree.
38. Apart from that, conduct of the plaintiffs does not show their willingness to perform their obligations, but they claim that they approached defendant several times and sought to receive the balance sale consideration, but the defendant postponed the same on one excuse or another. But when the defendant issued Legal Notice dated 11.05.2007, in response plaintiffs in their Reply Notice dated 23.05.2007 alleged that Schedule Property was in square shape at the time of Agreement of Sale (Ex.A-1), later it is in triangular shape and insisted the defendant to identify the property as a square bit by fixing boundary stones and also said that the property was not useful to them as it is not as per Vastu.
39. A plain reading of Agreement of Sale (Ex.A-1) reveals that the plaintiffs agreed to purchase the property within the specified boundaries mentioned there in and it is pertinent to note that, the Agreement of Sale (Ex.A-1) does not contain any details regarding the shape of schedule property. So, the plaintiffs cannot raise such contention that Schedule Property was initially in square shape, and has become triangular. In the absence of any foundational facts in Ex.A-1, merely raising the said plea, indicates that the version of plaintiffs is evasive and hypothetical, and not based on ground realities. Importantly, the 1st Plaintiff (P.W-1) in his cross examination clearly deposed that at the time of purchase of Schedule Property under Ex.A-1, he along with other plaintiffs 25 verified the title deeds of the defendant and also Schedule Property under Ex.A-
1. Thus, the plaintiffs were having clear idea about the land under Ex.A-1.
40. It is evident from a perusal of the document that the plaintiffs had agreed to pay the balance sale consideration within a period of two (2) months from the date of Ex.A-1 and the survey of the land and fixing of boundaries has to be done by the defendant, till the date of executing the registered sale deed. It is clear that if there is a variation in the extent of land on a survey the sale consideration has to be adjusted accordingly at the time of registration. It is important to note that the Agreement of Sale (Ex.A-1) does not say that payment is conditional on the land being surveyed first, instead fixing the boundaries is an obligation connected to the time of executing the registered Sale Deed which happens only after the buyer pays and demands execution. Therefore, taking measurements and fixing boundaries in the Schedule Property under the Ex.A- 1 is not a pre-condition for payment of balance sale consideration. Moreover, the plaintiffs in their Reply Notice (Ex.A-3) expressed that the Schedule Property is not useful to them as it is not physically in existence as per Vasthu, which implies their unwillingness to pay balance sale consideration. Furthermore, the contention with regard to shape of the Schedule Property is not based on any material and is not a plausible ground, as the defendant had agreed to sell the property as per the boundaries in Ex.A-1. All these aspects on part of plaintiffs does not satisfy the criteria of willingness. 26
41. The learned counsel for 1st respondent/defendant placed reliance on the Apex Court judgement in U. N. Krishnamurthy vs A.M. Krishnamurthy15, which expounds the principle of readiness and willingness. A mere pleading of readiness and willingness in the legal notice and the plaint is not sufficient to draw the reasonable inference in their favour. It is the bounden duty of the plaintiffs to prove their readiness and willingness by adducing plausible evidence.
42. Further, learned counsel for the 1st respondent/defendant drew attention to the ratio established in Pydi Ramanna Vs. Devarasetty Manmadha Rao16 and asserted that the appellants/plaintiffs merely stated that they were ready and willing to perform their part of the contract. However, in reality, they failed to demonstrate any essential steps on their part after execution of Ex.A-1, and remained inactive, without initiating any constructive steps whatsoever to fulfil their part of action.
43. The precedent of Prakash Chandra Vs. Angadlal & ors17, relied by the learned counsel for the appellants/plaintiffs is not applicable to the facts in the lis. In the said case, Apex Court rendered its judgment considering a defective title and the alienation of the subject property, contrary to the terms of the agreement and other relevant aspects, etc. Whereas, in the case on hand, neither side has argued that defendant sold the Subject Property to others, 15 (2023) 11 SCC 775 16 (2024) 7 SCC 515 17 AIR 1979 (SC) 1241 27 contrary to the stipulations in Ex.A-1 dated 16.12.2006. Hence, with all due respect the said dictum does not suit to the facts of the instant case.
44. The judgment in P.D. Souza Vs. Shondril Naidu18, which is also mentioned by the appellants/plaintiffs, was rendered on the basis of undisputed facts set out in that case, wherein the vendor was the landlord of the vendee and accepted part payments from another party without any demur. In contrast, it is not the appellants'/plaintiffs' case in the present lis that the 1st respondent/defendant received any further amount apart from the payment made at the time of execution of Ex.A-1 dated 16.12.2006. Hence, the facts of that decision are entirely different from the case on hand.
45. In N. Tyagaraju & ors. Vs. S. Narayana Swamy19, rendered by a learned Single Judge of the Unified High Court of Andhra Pradesh at Hyderabad., it is submitted by the learned counsel for the 1st respondent/defendant that the conduct of defendant in a suit for specific performance cannot be ignored when exercising powers under the Specific Relief Act. It is no doubt true that conduct plays a pivotal role in the adjudication process, yet the appellants/plaintiffs own conduct in the present case is not free from blame. After executing Ex.A-1 dated 16.12.2006, the appellants/plaintiffs made no concrete efforts to fulfil their part of the contract by paying the agreed amount within two months, nor did they issue any notice to the 1st respondent/defendant to call for the execution 18 AIR 2004 SC 4472 19 2014 (2) ALT 540 (S.B.) 28 of a registered Sale Deed, except issuing reply to legal notice. Therefore, the N.Tyagaraju's case is not applicable to present case on hand.
46. Notably, the plaintiffs filed O.S. No.56 of 2010 on 15.02.2010, though the defendant issued legal notice on 11.05.2007, to which, reply was given by the plaintiffs on 23.05.2007. Later, the plaintiffs, after 2 years 9 months had filed a suit, which shows their reluctance and unwillingness to purchase the property and as rightly held by the Supreme Court in Saradamani Kandappan Vs S.Rajalakshmi case. The fact that limitation period of 3 years does not mean that a purchaser can wait for one or two years, to file a suit and obtain specific performance.
47. The Hon'ble Supreme Court in the case of Man Kaur (Dead) Vs. Hartar Singh Sangha20, held that:
".....40. This contention has no merit. There are two distinct issues. The first issue is the breach by the defendant vendor which gives a cause of action to the plaintiff to file a suit for specific performance. The second issue relates to the personal bar to enforcement of a specific performance by persons enumerated in Section 16 of the Act. A person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (other than the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of the plaintiff is something which need not be proved, if the plaintiff is 20 (2010) 10 SCC 512 29 able to establish that the defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of ₹10 lakhs and earnest money of 1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay 15 lakhs. In such a case there is a clear breach by the defendant. But in that case, if the plaintiff did not have the balance 9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract had to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by the defendant, as he was not "ready and willing" to perform his obligations......"
Even, if we assume for a moment that the defendant has breached his part of the contract, the case of the plaintiffs would still not be sufficient as they are not able to prove the readiness and willingness to perform their part of the contract.
48. In that view of the matter, point No.2 held in favour of the defendant and against the plaintiffs.
Point No.3:
49. Admittedly, plaintiffs at the stage of suit proceedings have not sought for alternative prayer to refund the amount paid under Ex-A.1. However, during the pendency of the appeal proceedings before this court, plaintiffs asked for the alternative relief of refund of the amount of Rs.16,50,000/- (Rupees Sixteen Lakhs Fifty Thousand only) with the subsequent interest at 12% per annum from the date of Agreement of sale till realization, by filing the I.A. No.1 of 2024 under order VI Rule 17 CPC petition, seeking amendment in the plaint portion to add alternative relief in original suit, so as to include the plea of returning the advance amount.
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50. This court by taking into consideration the purport of Section 22 of the Specific Relief Act, 1963 and also following the well settled legal principles allowed the amendment petition on 08.07.2025. Consequently, amended prayer includes the refund of money as an alternative prayer exists in the instant appeal.
51. Therefore, in the backdrop of above facts and circumstances, presently we are dealing with the point of an alternative plea of refund of money to the plaintiffs is legally sustainable or not?
52. It is the specific case of the appellants/plaintiffs that the defendant received an amount of Rs.16,50,000/- (Rupees Sixteen lakhs Fifty Thousand only) towards bayana (earnest amount) for the proposed sale transaction and remaining total sale amount will be paid within a period of 2 months from Ex-A.1(16.12.2006). If the same is not complied by the plaintiffs, defendant will be entitled to charge the interest at the rate of Rs.1/- per hundred per month on the remaining sale consideration amount at the time of registration. As there is no clause of forfeiture of bayana by the defendant himself in Ex-A.1. It is contended by the appellants/plaintiffs that in the absence of explicit and clear clause in the Ex-A.1, the defendant has no right to forfeit the amount of Rs.16,50,000/-, paid towards bayana amount only. As such, the action of the defendant by way of new term forfeiting of the bayana amount is not legal and valid. The learned counsel for appellants/plaintiffs would submit that receiving considerable amount by the defendant is not at all disputed. Hence, he prayed for alternative relief of refund of bayana amount from the defendant. 31
53. Conversely, learned counsel for the respondent/defendant vehemently submitted that the action of the plaintiffs entering into an Agreement of Sale (Ex- A.1) with the defendant, by paying partial amount and stipulating the specific period of two months for completion of entire sale transaction. Despite the same, they have not completed the sale transaction within the prescribed time frame and are protracting it by taking false pleas etc., leads to multifarious problems to the 1st respondent/defendant. Thus, the appellants/plaintiffs are not entitled for refund of bayana amount, at the appellate stage. Therefore, learned counsel for the 1st respondent/defendant prayed for dismissal of the said prayer.
54. A plain reading of the recitals made in Ex-A1 extracted above (Para No.18), clearly reveals that the defendant offered to sell the Subject Property for total amount of Rs.66,00,000/- to an extent of Ac.2.00 cents i.e., at the rate of Rs.33,00,000/- per acre to the plaintiffs and they paid an amount of Rs.16,50,000/- by cash at the time of execution of Ex-A.1, towards bayana before the attestors and the said cash was received by the defendant. It is further agreed by the both parties that the remaining sale consideration of Rs.49,50,000/- to be paid within two months i.e., from 16.12.2006 (Ex-A1). In the event, plaintiffs fail to pay the balance sale consideration within the stipulated time, plaintiffs have to pay interest at the rate of Rs.1/- per hundred per month on the remaining sale consideration at the time of registration of the Sale Deed, to the defendant. If the plaintiffs are ready with the remaining sale consideration, despite their requests for registration, the defendant causes 32 delay, the plaintiffs are at liberty to initiate legal proceedings against the defendant, for which the defendant would be responsible.
55. It is noteworthy to refer to the meaning of the word 'Bayana' specifically mentioned in Ex-A.1, which plays pivotal role in arriving at comprehensive conclusions in the lis. In this context, unified High Court of Andhra Pradesh at Hyderabad, after taking into consideration of notable Telugu-English dictionaries explained the meaning of 'bayana' in Rabina Bibi Vs. Pulipaka Satyavathi and Ors21, the relevant portion of which is extracted hereunder:-
"7.......the correct meaning of the word "Bayana" is earnest money. This was the meaning adopted in Kanpur I.B.W. and F. Mills v. Banarsi Das, AIR 1959 All 755. In Brown's Telugu- English Dictionary at page 66 of the supplement dealing with mixed dialects used in Telugu, the meanings given of the word "Bayana" are 'earnest money' 'handsell'; advance money. The same meanings are given but in a different order in Sankaranarayana's Telugu-English Dictionary. All earnest moneys are also advances. It is clear that the use of the word "Bayana" carries with it the meaning that it is a particular type of advance, viz., an earnest money."
Coming to the case on hand as stated supra, Ex.A-1(Agreement of Sale) clearly mentioned the verbatim of bayana. The meaning of bayana defined in the Rabina Bibi Vs. Pulipaka Satyavathi & Ors comes under the realm of earnest money.
56. The Hon'ble Supreme Court clearly made a distinction between earnest and advance money in Central Bank of India Vs. Shamugavelu22, as held below:-
21
1962 SCC OnLine AP 31 22 2024 (6) SCC 641 33 "......84. The difference between an earnest or deposit and an advance part-payment of price is now well established in law. Earnest is something given by the promise to the promisor to mark the conclusiveness of the contract. This is quite apart from the price. It may also avail as a part-payment if the contract goes through. But even so it would not lose its character as earnest, if in fact and in truth it was intended as mere evidence of the bargain. An advance is a part to be adjusted at the time of the final payment. If the promise defaults to carry out the contract, he loses the earnest but may recover the part-payment leaving untouched the promisor's right to recover damages. Earnest need not be money but may be some gift or token given. It denotes a thing of value usually a coin of the realm given by the promisor to indicate that the bargain is concluded between them and as tangible proof that he means business......"
57. Considering the rival contentions made by the respective parties and after going through the relevant documents, more particularly, the recitals made in Ex-A.1 (Agreement of sale) and also above mentioned legal position, it is evident that there is no specific forfeiture clause stipulated in the Agreement of Sale, in the event of default by the plaintiffs. In fact, Ex-A.1 reveals that the remaining total sale consideration will be payable by the plaintiffs to the defendant within two months from the date of Ex-A.1(16.12.2006) and if the same is violated, the defendant will be entitled for interest at the rate of Rs.1/- per hundred per month from the plaintiffs only.
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58. The Hon'ble Supreme Court while touching the issue of forfeiture of amount in Satish Batra Vs. Sudhir Rawal23, has held as under:-
"......15. The law is, therefore, clear that to justify the forfeiture of advance money being part of "earnest money" the terms of the contract should be clear and explicit. Earnest money is paid or given at the time when the contract is entered into and, as a pledge for its due performance by the depositor to be forfeited in case of non- performance by the depositor. There can be converse situation also that if the seller fails to perform the contract the purchaser can also get double the amount, if it is so stipulated. It is also the law that part-payment of purchase price cannot be forfeited unless it is a guarantee for the due performance of the contract. In other words, if the payment is made only towards part-payment of consideration and not intended as earnest money then the forfeiture clause will not apply......"
59. Keeping in view the recitals (mentioned supra), it is apparent that Ex-A1 does not include forfeiture clause. In fact, it is necessary that the contract must contain a stipulation of a forfeiture clause to invoke the same in specific words. In a nutshell, right to forfeit the amount flows from contractual terms agreed by the both parties in Ex-A.1 only, but not on the choice of one party. If there is no stipulation in the contract for forfeiture of amount, then no such right is automatically available to either party to forfeit the said amount. In other words, a party to the agreement cannot be made accountable to perform something for which, it has not entered into a contract. In fact, it amounts to re-writing of a contract at the instance of one party unilaterally.
23
(2013) 1 SCC 345 35
60. In this context, it is relevant to note the Apex Court dictum held in Suresh Kumar Wadhwa Vs. State of Madhya Pradesh and ors24. The relevant para Nos.26 & 27 are reproduced as under:-
"......26. Equally well-settled principle of law relating to contract is that a party to the contract can insist for performance of only those terms/conditions, which are part of the contract. Likewise, a party to the contract has no right to unilaterally "alter" the terms and conditions of the contract and nor they have a right to "add" any additional terms/conditions in the contract unless both the parties agree to add/alter any such terms/conditions in the contract.
27. Similarly, it is also a settled law that if any party adds any additional terms/conditions in the contract without the consent of the other contracting party then such addition is not binding on the other party, Similarly, a party, which adds any such term/condition, has no right to insist on the other party to comply with such additional terms/conditions and nor such party has a right to cancel the contract on the ground that the other party has failed to comply with such additional terms/conditions......."
61. In view of the above ratio decidendi laid down by the Apex Court, coupled with the obvious fact that Ex-A.1, does not contain any clause or term of forfeiture at all. In such case, the very action of the defendant forfeiting bayana/earnest money is not legal and valid. Therefore, point No.3 is held in favour of the plaintiffs and against the defendant.
Result:
62. Given the aforementioned analysis of the case, coupled with the aid of authoritative legal pronouncements by the Apex Court, we are of the firm opinion that the Trial Court after meticulous analysis of each and every pleading as well as the evidence adduced by the respective parties arrived at its 24 2017 (6) SCC 757 36 unequivocal findings and rightly held the 1st issue in favour of the plaintiffs. So far as issue Nos.2 and 3 are held in favour of the defendant. Thus, we find no infirmity and inherent flaw to set aside the reasoned findings of the Trial Court.
63. Considering the peculiar facts and circumstances involved in the lis as also categorical findings arrived at by us, in relation to point No.2, as the plaintiffs were not able to establish the prerequisite fact of readiness and willingness aspect, we are confining the relief to refund of amount only, without interest.
64. For the foregoing conclusion arrived at by this Court and in the light of the above legal position, the instant appeal is partly allowed to the extent of granting alternative relief to the plaintiffs only, in the following terms:-
i. The impugned judgment dated 29.08.2012 of the learned District Judge, Guntur in O.S.No.56 of 2010 is confirmed.
ii. The defendant shall refund an amount of Rs.16,50,000/- (Rupees Sixteen Lakhs Fifty Thousand only) to the plaintiffs.
iii. Three months' time is given to the defendant to return the said amount to the plaintiffs, who on receipt of the said sum shall return Ex.A-1 to the defendant herein.
Parties shall bear their own costs. As a sequel, all pending applications shall stand closed.
___________________ RAVI NATH TILHARI, J _____________________________ MAHESWARA RAO KUNCHEAM, J Dated 31.07.2025 GVK 37 1 THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI AND THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM APPEAL SUIT No.15 of 2013 Dt. 31.07.2025 GVK