JUDGMENT
P.S. Narayana, J.
1. The unsuccessful defendants 1 and 2 in the suit O.S. No. 53 of 1983 on the file of the Principal Subordinate Judge, Guntur are the appellants herein who have filed the present appeal aggrieved by the judgment and decree passed in the said suit on 18-8-1989.
2. The first appellant-first defendant died pending the appeal and hence his legal representatives were brought on record as appellants 3 and 4.
3. The respondent-plaintiff instituted the suit O.S. No. 53 of 1983 on the file of the Subordinate Judge, Guntur for the relief of specific performance of contract of sale dated 7-1-1976 executed by the defendants in favour of the plaintiff in respect of the schedule property and for possession of the same and in default the Court to execute the same in favour of the plaintiff and put him in possession of the same or in the alternative for damages for a sum of Rs. 99,491/- for breach of contract of sale dated 7-1-1976 and for other reliefs.
4. For the purpose of convenience, the parties will be referred to as plaintiff and defendants.
5. The respective pleadings of the parties in nut-shell are as specified hereunder:
The plaint schedule property is an extent of Ac. 5-52 cents out of an extent of Ac.6-10 cents in Ramachandrapuram Agraharam and the defendants are the owners of the said property and the defendants agreed to sell the plaint schedule property in pursuance of a contract of sale dated 7-1-1976 for a sum of Rs. 1,04,880/- and received a sum of Rs. 10,501/- as part of consideration and as per the terms of the agreement of sale the balance of sale consideration should be paid within three months thereafter i.e., 7-4-1976 and the defendants to execute and register
the sale deed and deliver possession of the property to the plaintiff. It was also further pleaded that the plaintiff was ready and willing to perform his part of the contract right from the date of the contract of sale but as the transaction relates to property which is within Guntur Town the alienation to be valid should be with the prior permission of Urban Land Ceiling Authority. The parties though fully aware of the same, did not make the same in the contract of sale itself. Nontheless according to law, the person who has to perform the contract, execute the sale deed has to obtain the said permission at his own expense and execute a valid sale deed and register it. Thus, the three months period fixed was felt perhaps insufficient and hence the contract itself provided that before 7-4-1976 the plaintiff has to pay 85% of the consideration including the sum of Rs. 10,501/- already paid on 7-1-1976 whereupon the land should be got measured by the defendants and should be delivered possession of and thereafter execute the sale deed or deeds as per the directions of the plaintiff either in his name or in the name of others as directed by him. Since then, till today the defendants have not chosen to move in the direction and obtain the necessary permission from the Urban Ceiling Authority in spite of repeated demands. They were simply putting it off stating that it has not been received. As days are passing by, the plaintiff is constrained to doubt the bona fides of the defendants as the prices are going up and the conduct of the defendants was creating a suspicion in the mind of the plaintiff that they are trying to resile from the contract. So he got a registered notice dated 6-2-1983 issued to the defendants calling upon them to specifically perform the contract of the sale and put him in possession of the property. The first defendant received the same on 7-2-1983, while the second defendant evaded the same. They gave a reply dated 22-2-1983 by which they alleged that the plaintiff did not and could not pay
85% of the sale consideration on or before 7-4-1976 whereupon only the other steps of measuring the land, payment of balance and execution of the sale deed etc., were agreed upon, that the plaintiff defaulted that in the meanwhile the Urban Ceiling Act of 1976 has come into force, that in spite of the efforts of the defendants, permission was not granted that the plaintiff did not cooperate that therefore the sale deed could not be registered and hence a sum of Rs. 10,501/- paid as advance was forfeited and that specific performance cannot be asked for by the plaintiff. The duty or obligation to pay the balance of the consideration of 85% including Rs. 10,501/- paid already by the plaintiff before 7-4-1976 is only dependent upon the defendants being capable of executing the sale deed or deeds for the land. They could do so only by obtaining the permission from the Urban Land Ceiling Authority and Andhra Pradesh Prohibition of Alienation of Urban Land in existence by then, which by implication forms a condition of the agreement with the burden of obtaining the same by the defendants themselves. Till they obtained the same, the plaintiff is under no obligation to perform the obligation undertaken by the plaintiff to pay the balance of consideration. Hence the breach has been committed by the defendants because the prices have gone up. The alleged refusal of permission, which is disclosed, only now, in the reply notice is seemed to avoid the contract of sale. In any event, the defendants are liable to perform the suit contract of sale or in the alternative to pay the damages in addition to Rs. 10,501/-paid by the plaintiff with subsequent interest at 12% per annum. As mentioned above, already the plaintiff has always been ready and willing to perform his part of the contract, viz., to pay the balance of consideration and obtain the registered sale deeds after measurements of the lands and deliver possession of the same.
The first defendant filed written statement and the same was adopted by the second
defendant. The case of the first defendant is that he owns and possesses an extent of Ac.3-52 cents out of the whole property while the defendant No. 2 owns and possesses the remaining two acres, which had been gifted by this defendant to her in the year 1968 under two separate gift deeds. It was also further pleaded that the suit property is situated abutting Etukur road within the Guntur Town Urban Ceiling limits. This defendant also owns and possesses similar other land in the vicinity. Even in the terms of the Andhra Pradesh Vacant Lands in Urban Areas (Prohibition of Alienation) Act, 12 of 1972, a sale of the suit land is prohibited and transactions in contravention of such prohibition are null and void. Plaintiff representing to be rich and influential prevailed on the defendants to enter into contract of sale dated 7-1-1976 to sell the suit land assuring the defendants that any legal objections or hurdles for sale will be got removed by him at his expense, that the amount of Rs. 10,501/- paid at the time of contract of sale may be treated as deposit for the good and prompt performance of, plaintiffs duties, that 85% of the sale price will be paid unconditionally by 7-4-1976 after which alone the land need be got measured and delivered and that sale deeds will be obtained by him from defendants at his expense against payment of balance sale price etc., shortly after the contract of sale, another Act the Urban Land (Ceiling and Regulation) Act ( Act 33 of 1976) also came into force prohibition alienation and requiring adjudication of ceiling limits, declaration of excess as well as permission of authority to sell even the land within the ceiling. In spite of reminders by defendants, plaintiff did not fulfil his obligation of payment of 85% of sale price on or before 7-4-1976. For his own reason, he was neither ready nor willing to perform his part of the contract. He has also abandoned the contract and any claim thereunder by his failure to keep the terms of the contract and purpose any rights thereunder for a long time thereafter.
The contract was, therefore treated as cancelled and the deposit amount was treated as forfeited by the defendants to the knowledge, of the plaintiff. The efforts of this defendant and other similar land owners in attacking provisions of the Act regarding suit lands and similar lands did not prove successful and useful. Defendants filed their declaration as required by the Act 33 of 1976, But the authorities have not completed the adjudication nor passed any orders thereon. Defendants have not defaulted and have not committed breach of contract. Plaintiff is not entitled for specific performance of the contract both for the reason that he himself committed breach of the contract and has also abandoned the contract. He is also estopped from claiming such performance because of his conduct. The suit contract is invalid and is null and void in view of the provisions of Act 12 of 1972. It has also become invalid and the performance has become impossible because of Act 33 of 1976 also. Plaintiff is, therefore, not entitled for specific performance of the contract for these reasons as well. He is also not entitled for refund of deposit amount of Rs. 10,501/-since he defaulted and committed breach of his undertakings and forfeited his right for refund of such amount. It is not true that plaintiff suffered any damage because of rising prices of lands or otherwise. He is not entitled to any damages much less the amount claimed in the suit. To a registered notice issued by the plaintiff through his Advocate, first defendant replied detailing the default and breach committed by plaintiff as well as forfeiture of the deposit and the invalidity of the contract. Plaintiff has rushed to the Court with false and untenable claim to harass the defendants.
6. On the respective pleadings of the
parties, the following issues were settled.
(1) Whether the suit is not maintainable in view of Act 12 of 1972?
(2) Whether the plaintiff is entitled for
specific performance of agreement of sale dated 7-1-1976?
(3) If not, whether the plaintiff is entitled for the alternative relief of damages?
(4) To what relief?
Before the Trial Court the plaintiff was examined as P.W.1 and the first defendant was examined as D.W.1 and Exs. A. 1 to A. 16 and Exs. B.1 to B.3 were marked. The Trial Court on appreciation of both oral and documentary evidence had decreed the suit for specific performance of the agreement of sale dated 7-1-1976 with a direction to the defendants to obtain necessary permission or exemption under the U.L.C, Act 33 of 1976 and necessary clearance under Income Tax Act and Wealth Tax Act within a period of two months and within a month thereafter the defendants shall execute and register the sale deed in favour of the plaintiff and deliver possession of the property and in default the plaintiff is at liberty to obtain the sale deed through Court subject to obtaining exemption or permission under Act 33 of 1976 and for costs of the suit. Aggrieved by the same, the defendants have preferred the present appeal.
7. Sri E.Manohar, the learned Senior Counsel representing Sri Ravindra Babu the Counsel on record has made the following submissions: The learned Counsel had maintained that this is a suit for specific performance and though as a normal rule time may not be the essence of the contract. In the present case, the fixation of time for performance of a contract or performance of essential conditions of the contract is having material bearing especially in the light of the fact that there is an inordinate delay on the part of the plaintiff in approaching the Court. The learned Counsel further maintained that the plaintiff had not approached the Court with clean hands and there is an unexplained delay from 7-1-1976
to 1-3-1983. The learned Counsel also submitted that notice was given on 5-2-1983 and the reply was given on 22-2-1983. The learned Counsel also submitted that from the facts and circumstances of the case, it can be clearly inferred that there was abandonment of contract and for reasons best known again the plaintiff had thought of instituting the suit. The learned Counsel also no doubt made an attempt to contend that inasmuch as these lands are agricultural lands, the ULC Act 33 of 1976 is not applicable. But, however, the learned Counsel was fair enough to state that the parties no doubt had proceeded on the said assumption in view of the reply given and also the stand taken by the respective parties before the trial Court. The learned Counsel also submitted that the essential condition of payment of balance of amount will be definitely relevant in the present case in the context of non-performance of the material terms of the contract and also the plaintiff not being ready and willing to perform his part of the contract. The learned Counsel also had drawn my attention to the provisions of Sections 16 (b) and 16(c) of the Specific Relief Act, 1963. The learned Counsel also pointed that the contents of the notice and the reply notice relating to the Urban Land Ceiling clearance are definitely, contrary to the terms of the agreement and at any rate there is no whisper about the same in the agreement of sale. The learned Counsel had taken me through the oral and documentary evidence and also had pointed out that readiness and willingness is a condition precedent to pass a decree for specific performance and inasmuch as the relief of specific performance is an equitable relief in the facts and circumstances of the case, the plaintiff is not entitled to the said relief. The learned Counsel also had placed reliance on the decisions reported in Chand Rani v. Kamal Rani, , K.S. Vidyanadam v. Vaimvan, , Govind Prasad v. Hari Dutt, , Gomathinayagam Pillai
v. Kpalani Swami, ,
Mademsetti Satyanarayana v. Yelloji Rao,
.
8. Sri C. Subba Rao, learned Counsel representing the respondent-plaintiff in the suit had taken me through the evidence, which had been recorded by the Trial Court and had contended that in the facts and circumstances of the case, the postponement of performance of conditions of the contract was only because of the default on the part of the defendants and the defendants alone are the erring parties whose conduct definitely is blameworthy in not obtaining urban land ceiling clearance from the competent authority inasmuch as the defendants wanted to avoid the contract in view of the rise of prices. The learned Counsel further also had contended that the settled principle is that normally time is not the essence of the contract in the case of sale of immovable property and the plea of waiver or abandonment of contract cannot be inferred and there is no material available on record to substantiate the said stand taken by the defendants. The learned Counsel also had taken me through the evidence of P.W.1 and had explained how it was agreed between the parties relating to obtaining of permission from the Urban Land Ceiling Authority. The learned Counsel also had drawn my attention to the language employed in Sections 16(b) and (c) of the Specific Relief Act, 1963. The learned Counsel for the respondent-plaintiff, while making further elaborate submissions, had commented that the minimum gap of seven years in initiating the legal action by itself cannot be a ground to infer abandonment especially in the light of the fact that there was no termination or cancellation of contract at any point of time. The learned Counsel also had maintained that mere delay cannot be a ground to refuse the relief of specific performance of contract inasmuch as the suit was instituted well within time from the date of refusal. The learned Counsel had placed strong
reliance on the decisions reported in Govind Prasad case, Gomathinayagam Pillai case, and Mademsetty Satyanarayana case (supra); K.M. Rajendran v. Arul Prakasam, , Sukhbir Singh v. Brijpal Singh, , Juraj Singh v. Raj Singh, AIR 1995 SC 945, Ramesh Chandra v. Chuni Lal, , Prag Datt v. Saraswathi Dev, .
9. Heard both the Counsel at length and also perused the oral and documentary evidence available on record.
10. From the respective pleadings of the parties, the evidence available on record and the respective contentions advanced by the Counsel on either side the following points arise for consideration in this appeal.
1. Whether the respondent-plaintiff is entitled to the relief of specific performance of agreement of sale dated 7-1-1976 in the facts and circumstances of the case?
2. Whether the respondent-plaintiff is entitled to the alternative relief of damages as prayed for by him?
3. If so, to what relief the parties are entitled to?
11. Point No. 1: The factual matrix of the case is clear as reflected in the respective pleadings of the parties referred to supra and all the details of the respective pleadings need not be repeated again. It is not in dispute that the defendants had entered into an agreement of sale under Ex.A.1 dated 7-1-1976 with the respondent-plaintiff in relation to Ac.5-52 cents out of Ac.6-10 cents of land situate in Ramachandrapuram Agraharam, Guntur and it is also not in dispute that out of this extent of Ac.5-52 an extent of Ac.3-52 cents belongs to the first defendant and two acres belong to the second defendant. The payment of Rs. 10,501/- as advance on 7-1-1976 also is
not in dispute. It is also specified in Ex.A.1 the agreement of sale that by 7-4-1976 the plaintiff had to pay eighty five per cent of the sale consideration including Rs. 10,501/-which was paid on 7-1-1976 and the land had to be measured by the defendants and possession thereof had to be delivered to the plaintiff. It is pertinent to note that though for execution of the sale deed the stand taken by the respective parties appears to be that urban land ceiling clearance is necessary for taking possession of the property or for measuring the land, as per the terms of the contract before the stipulated date in Ex.A.1 there was no legal impediment at all from any quarter whatsoever and these are the terms of the contract to be performed by the parties under the terms of Ex.A.1. Subsequent thereto the balance had to be paid and sale deed had to be executed and registered and the price was fixed as Rs. 19,000/- per acre. No doubt before the Trial Court elaborate arguments had been advanced relating to A.P. Vacant Lands in Urban Areas (Prohibition of Alienation) Act 12 of 1972, and also Urban Land (Ceiling and Regulations) Act 33 of 1976. But however, both the learned Counsel had neither raised nor canvassed these questions before this Court and hence these aspects need not be gone into in the appeal.
12. The main contention, which had been advanced by the respective Counsel representing the parties, is to the effect that the defaulting party is only the plaintiff according to the defendants and on the contrary the defaulting parties are the defendants and not the plaintiff. It is also essential to note that relating to obtaining of permission or urban land ceiling clearance nothing had been specified in Ex.A.1. As can be seen from the findings recorded by the Trial Court, the trial Court had proceeded on the ground that unless such clearance is obtained there cannot be any execution of a sale deed and inasmuch as such permission
was not obtained the defaulting parties are only the defendants and hence on the ground of mere delay, the relief of specific performance cannot be refused inasmuch as the suit was instituted within time from the date of refusal. It may be appropriate to appreciate the evidence of P.W.1 and D.W.1. P.W.1 deposed that the land was purchased at Rs. 19,000/- per acre and the defendants executed Ex.A.1 agreement dated 7-1-1976 and he paid Rs. 10,501/- as advance at the time of Ex.A.1 and the time fixed was three months and it was agreed that within three months he had to pay 85% of sale price including the amount already paid and deliver possession to him and for this purpose the date was fixed as 7-4-1976 and no time limit was fixed for payment of balance of fifteen per cent and execution of sale deed by the defendants. No doubt P.W.1 deposed that he was always ready and willing to perform his part of the contract. P.W.1 also deposed that two months later to 7-1-1976 himself and the second defendant went to the scribe Raghava Rao along with Nissankara Rao Ankamma Rao who fixed up the bargain and the scribe said that by that time the ULC Act, 1976 came into force and permission had to be obtained for execution of sale deed and its registration and the first defendant agreed to obtain such permission. P.W. 1 also deposed that it was understood that after obtaining permission only the sale deed could be executed and registered and measurements of the land and delivery by defendants and also payment of balance by him has to be postponed and it was an oral understanding that the first defendant should apply for permission and he got declaration filed by him before the competent authority and Ex.A.2 is the copy of declaration given by him before the Urban Land Ceiling Authority, Ex.A.3 is the final decision of the Urban Land Ceiling Authority by accepting the declaration and the defendants never informed him about obtaining the Urban Land Ceiling authority permission in spite of
repeated requests. P.W.1 also deposed that as the rates were increased the defendants kept quiet and P.W.1 got the registered notice issued to the defendants under Ex.A.4 dated 5-2-1982 and Ex.A.5 is the postal acknowledgment; Ex.A.6 is the returned notice issued to the second defendant, Ex.A.7 is the reply dated 22-8-1982 got issued by the defendants 1 and 2. P.W.1 also deposed that he filed the suit and deposited the balance of sale consideration into the Court and he was always ready and willing to perform his part of the contract and there was no default on his part and he is doing tobacco business and his yearly turnover is fifteen lakh rupees and he pays income tax of Rs. 3,000/-. P.W.1 denied the suggestion that he was not able to pay 85% of the sale price before 7-4-1976 and that he committed the breach. He also denied the suggestion that he did not bother about the agreement and abandonment of contract and the defendants forfeited the advance amount paid by him. In the cross-examination, no doubt P.W.1 admitted that prior to Ex.A.4 he had not given any notice nor written any letter to the defendants requiring them to execute the sale deed but P.W.1 had stated that he was making oral demands but the defendants did not get any permission from the Urban Land Ceiling authority and he does not know whether the defendants got such permission. P.W. 1 also deposed that on the basis of Ex. A. 1 he filed declaration before the Urban Land Ceiling Authority and by the time of filing of the declaration Ex.A.2 he did not have any other land in 1981 and he purchased some other property in Guntur town and he had not filed any separate declaration for the same and he cannot say the order that had been passed by the Urban Land Ceiling Authority and he cannot say if it is stated in Ex.A.3 that he has to surrender 100 square meters and he had not filed any proof to show that he was paying income tax and he did not file anything to show that he was paying income tax and he did not file anything to show that
he had cash to pay balance before filing of the suit and he also deposed in the cross-examination that he does not know whether the defendants have any excess land in urban area of Guntur. He also deposed that Ankamma Rao and Raghava Rao are no more. No doubt he had denied the suggestion that they did not attest Ex.A.1. No doubt Exs.A.8 to A.16 also had been referred to an account copy of account of P.W.1 and also income tax assessment orders and the other relevant documents.
13. The first defendant as D.W.1 had deposed about the relationship between himself and the second defendant and admitted that they entered into an agreement of sale Ex.A.1 with the plaintiff. D.W.1 also deposed that at the time of agreement of sale the plaintiff paid Rs. 10,501/- as advance and 85% sale consideration was agreed to be paid within three months thereafter and on payment of that amount and land had to be measured and possession thereof had to be delivered, and later sale deed had to be executed and registered. D.W.1 also deposed that the schedule land is situate in Guntur municipal limits adjoining Eturu road but however D.W.1 stated that he does not know whether by the time of Ex.A.1 A.P. Prohibition of Land Transfer Act was in force. He also deposed that the plaintiff did not pay 85% of the sale consideration within three months and urban land ceiling permission was not granted to sell the schedule land and the said land is under their cultivation. D.W.1 had specifically denied that he and the plaintiff had approached N. Ankamma and Addanki Raghava Rao relating to the transaction and he also deposed that the plaintiff did not request for performance of the contract and he had not obtained any permission under the ULC Act. In the Master Plan the suit schedule property was shown as non-agricultural purpose and he was not given any notice for obtaining permission under the Urban Land Ceiling Act. In the cross-
examination D.W.1 deposed that they are cultivating the land even today and it is an agricultural land he had also deposed about the terms of the contract between the parties.
14. D.W.1 further deposed that a sum of Rs. 10,501/- was paid as advance and the total consideration has to be arrived only after measurement of the land within three months thereafter and 85% of total consideration which includes Rs. 10,501/-has to be paid but no time limit was fixed for payment of balance of 15%. He also deposed that within three months from the date of Ex.A.1, ULC Act came into force and he also deposed about the filing of declaration and had stated that he did not surrender the excess land. D.W.1 also deposed that at the time of Ex.A.1 there was no such discussion and four or five months thereafter he filed the declaration and he filed an application before Urban Land Ceiling authority for permission to sell the property and they refused to give permission and he alone filed such declaration and the second defendant did not file any such application and the plaintiff had stated that if he gets urban land ceiling permission he would pay 85%. The second defendant had stated that she would apply for permission if D.W.1 gets such permission. D.W.1 also stated that Urban Land Ceiling Authorities refused permission. He also deposed that in Ex.A.7 reply he did not get it mentioned that he had met the plaintiff ten days after Ex.A.1 and asked about the prohibition of transfer of land on that he stated he would look to it. D.W.1 deposed that by Ex.A.7 for the first time he intimated that Urban Land Ceiling Authorities refused permission. He also deposed that the land could not be measured at the time of Ex.A.1 as there was crop on the land and Village Karnam of Ramachandrapuram Agraharam was the scribe of Ex.A. 1. He also deposed that since permission was not granted they could not execute the sale
deed and it is also because the plaintiff did not pay 85% of the sale consideration. He also deposed in the re-examination that 85% has to be paid as per the terms of Ex.A 1 and later the land had to be measured. Exs.B.1 and B.2 are the registered gift deeds dated 29-4-1968. Ex.B3 is the final statement issued by authorities under Section 9 of the U.L.C. Act.
15. On the evidence of P.W.I and D.W.1 it is clear that the plaintiff had not initiated any legal action and had kept quiet for sufficiently a long time but however the plaintiff now is taking a stand that inasmuch as the suit is filed within three years from the date of refusal under Ex.A.7, and inasmuch as it is within limitation, on the ground of default the relief of specific performance cannot be negatived.
16. Before discussing the other aspects of the matter, it may be appropriate to have a look at the Section 16(b) and (c) of the Specific Relief Act, 1963 which read as under:
“16. Personal bars to relief–Specific performance of a contract cannot be enforced in favour of a person-
(a) …….
(b) who has become incapable of performing, or violates any essential term of the contract that on his part remains to be performed or acts in fraud of the contract, or wilfully acts at variance with or in subversion of the relation intended to be established by the contract; or
(c) 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 terms of the performance of which has been prevented or waived by the defendant.
It is no doubt true that some attempt was made to convince the Court that in the light of Exs.A.8 to A. 16 it can be said that the
plaintiff has capacity to pay 85% of the amount as stipulated in the terms of Ex.A.1. For the purpose of appreciating me facts of the present case on hand the provisions of Section 16(b) and (c) of the Specific Relief Act are to be read together. It is not in dispute that within the stipulated time the plaintiff had not complied with the conditions. In my considered opinion, obtaining or non-obtaining of urban land ceiling permission may not be relevant so far as the terms of fixing the time for the purpose of payment under Ex.A.1 and also measurement of the land and delivery of possession, it is needless to point out that this condition has nothing to do with the obtaining permission from ULC authority inasmuch at the best it can be said that it is for the execution of regular registered sale deed. Payment stipulated is only 85% and this is a very crucial aspect. Apart from this aspect of the matter, the conduct of the parties also may have to be looked into while appreciating the oral and documentary evidence in a suit for specific performance. Except the evidence of P.W.1 there is no other evidence and no doubt an attempt was made to show that certain attempts were made on his part but specific stand had been taken by D.W.1 in this regard. From the facts it is clear that the plaintiff definitely slept over the matter for seven years. No doubt such plaintiff is coming forth with an explanation that it was due to the default on the part of the defendants in obtaining ULC clearance the condition could not be complied with. In this view of the matter, the finding recorded by the Trial Court that inasmuch as the suit was filed within three years from the date of refusal, the plaintiff is entitled to the relief of specific performance cannot be sustained since if the conduct of the parties is carefully scrutinised, the most essential and crucial term of the contract that is the payment of 85% of sale consideration definitely had not been complied with as stipulated in Ex.A.1 and hence necessarily it should be inferred that the plaintiff alone is the defaulting party
relating to the performance of the essential terms of the contract. In this view of the matter, it cannot be said that the plaintiff was ready and willing to perform his part of the contract. Not only this aspect, yet another crucial aspect is that there has been total inaction on the part of the plaintiff for sufficiently a long time and here is a party who having slept over the matter for seven years had approached the Court for the relief of specific performance of contract of sale. It is no doubt true that on the ground of default alone the relief of specific performance necessarily need not be negatived, but here the conduct of the plaintiff clearly reveals that he had abandoned the contract which can be definitely inferred from the facts and circumstances of the case but however inasmuch as the relief of specific performance being an equitable relief all the facts of the case are to be taken into consideration while granting the relief. Inasmuch as there is inordinate delay in claiming the relief, I am of the considered opinion that it will be highly inequitable to grant relief of specific performance in favour of the party like one, the plaintiff in the present case. No doubt several decisions had been cited by both the Counsel to substantiate their respective stands.
17. In B.R. Koteswar Rao v. C. Rameswar Bal Alias Devi, , it was held that the relief of specific performance being discretionary relief the Court should be cautious in granting the relief and the conduct of the person plays a pivotal role. In Chand Rani case (supra) it was held that in the case of immovable property there is no presumption as to time being the essence of contract and even if it is not essence of the contract the Court may infer that it has to be performed in a reasonable time if the conditions are (1) from the express terms of the contract; (2) from the nature of the property and (3) from the surrounding circumstances, for example the object of making the contract. The learned Senior Counsel representing the
appellants-defendants had placed strong reliance on this decision and also had taken me through paras 28, 29 and 30 and had contended that the facts also are almost similar to the facts of the present case. In Chand Rani case (supra) wherein the agreement to sell the immovable property it was stipulated that the amount in part was to be paid within ten days of the execution of the agreement and the balance has to be paid at the time of registration of deed and it was agreed that the vendor would redeem the property which was mortgaged and also obtain income tax clearance certificate and the word ‘only’ was used twice that would qualify the amount and to qualify the period of payment of such amount i.e., ten days it was held that the intention of the parties to make time as essence of the contract and in such case when the purchaser was not ready and willing to pay the amount in part as agreed before delivery of possession and income tax clearance certificate and redemption of the property, it was contrary to the condition of the agreement and the purchaser was not entitled to specific performance of the contract. The learned Counsel representing the respondents no doubt had placed strong reliance on Govind Prasad case and Gomathinayagam Pillai case (supra) to convince the Court that normally in the case of sale of immovable property time cannot be the essence of contract and in fact these decisions were referred to in Chand Rani case (supra). In Balraj Taneja v. Sunil Madan, , it was held that in suits for specific performance it is mandatory requirement under Section 16 of the Specific Relief Act to plead readiness and willingness of the plaintiff to perform his part of the contract which is a condition precedent to the passing of a decree for specific performance in favour of the plaintiff. In Vidyanadam’s case (supra) it was held that in agreement to sale certain time limit prescribed for taking steps by one or the other party may not amount to making time the essence of contract but must have some significance
cannot be ignored altogether by Court and total inaction on the part of the purchaser for two and a half years in violation of terms of agreement and the delay coupled with substantial raise in prices of properties it would be inequitable to give relief of specific performance to the purchaser. In Govind Prasad case (supra) it was held that 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 and default clause in contract by itself cannot evidence the intention to make the time of essence. The learned Counsel for the respondents also no doubt had placed strong reliance on the decisions in Sukhbir Singh ‘s case, Juraj Singh ‘s case and Ramesh Chandra’s case (supra). In Rajendran’s case (supra) it was held that mere delay is not sufficient to deny the specific relief unless there is waiver or abandonment.
18. As can be seen from the facts of the case, the essential terms of contract under Ex.A.1 are that on payment of 85% of sale consideration, measurement of land had to be taken and possession thereof had to be delivered. The stand taken by the respondent-plaintiff that there was delay and default on the part of the defendants in securing urban land ceiling permission cannot be sustained inasmuch as it is not an essential term of the contract to be performed by the defendants. In my considered opinion, the Trial Court had erred in arriving at the conclusion that in fact defaulting parties are the defendants and hence even after a period of seven years the respondent-plaintiff is entitled to the relief of specific performance. This approach is unreasonable, unjust and also inequitable in the facts and circumstances of the case especially in the light of the conduct of the parties to the litigation. Hence I am of the considered view that inasmuch as the essential condition of payment of 85% of sale consideration had not been complied with and a party having slept over the matter without any just reason for a period of
seven years, in equity cannot seek the relief of specific performance and therefore such discretionary relief cannot be granted. Hence the trial Court totally erred in granting the
relief of specific performance.
19. Point No. 2: In view of the facts of the case, it is not in dispute that an amount of Rs. 10,501/- had been received by the appellants-defendants as advance amount from the respondent plaintiff. No doubt an alternative relief also had been prayed for the claim of damages for breach of contract of sale dated 7-1-1976. Though it is contended that the amount of Rs. 10,501/-also is deemed to have been forfeited by virtue of abandonment of contract, the evidence of both P.W.1 and D.W.1 it is not clear on this aspect. In equity as far as the amount of Rs. 10,501/- is concerned, the respondent-plaintiff is entitled to the refund of the said amount with interest at 12% per annum from the date of agreement of sale till the date of institution of the suit and at the rate of 6% per annum from the date of institution of the suit till the date of realisation and except this relief the respondent-plaintiff is not entitled to any other relief.
20. Point No. 3: For the reasons recorded above, the appellants-defendants are bound to succeed and accordingly the appeal is partly allowed negativing the relief of specific performance and the appellants-defendants are directed to pay to the respondent-plaintiff a sum of Rs. 10,501/-representing the advance amount of sale consideration together with interest at 12% per annum from the date of agreement of sale till the date of institution of the suit and at the rate of 6% per annum from the date of institution of the suit till the date of realisation and accordingly the suit is decreed to the said extent of the refund of amount as aforesaid. It is needless to say that inasmuch as the first appellant-first defendant died the decreed amount to be realised from the assets of the first defendant left with his legal heirs i.e., the appellants 3 and 4 herein.
In the facts and circumstances of the case each party to bear their own costs.