Mere averment in the plaint coupled with reiteration in his deposition by the plaintiff in the present case is not sufficient in itself to prove the readiness and willingness of the plaintiff. The trial Court seems to have misguided itself in this regard by casting the burden upon the defendants to show that the plaintiff was not capable of making the payment. As it was their case all along that the plaintiff failed to turn up and pay the balance sale consideration, the burden was fully upon the plaintiff to prove his readiness and willingness to pay the balance sale consideration. It is well settled that a prayer under Section 22 of the Act of 1963 can be permitted even at the appellate stage but it must be bonafide. However, when the plaintiff did not seek such relief in his own wisdom right up to the stage of arguments and having filed an amendment petition at this late stage, he did not choose to include a prayer for such relief even therein, this Court is left with no alternative except to abide by the statutory mandate of the proviso to Section 22(2) of the Act of 1963.- the trial Court gravely erred in decreeing the suit for specific performance based on the cancelled agreement of sale;- trial Court completely misguided itself in treating the defendants as the plaintiffs in the suit and in casting upon them the burden to disprove the plaintiffs claim. - the plaintiff conducted himself in the course of the suit proceedings leaves this Court in no doubt that he completely lacked bonafides. The attempts on his part to change his version and build up his case from stage to stage are clear and manifest.- The plaintiff in the present case, with his ever-changing stands, therefore fall foul of the aforestated standard and cannot, in any event, claim the equitable relief of specific performance. - As the judgment and decree under appeal are set aside in their entirety, award of the suit costs to the respondent/plaintiff by the trial Court is also set aside. As the suit costs have already been withdrawn by him, pursuant to the interim order passed in this appeal, the appellants/defendants would be entitled to restitution. The respondent/plaintiff shall refund the same to the appellants/defendants within four weeks from the date of receipt of this judgment and decree.

THE HONBLE SRI JUSTICE SANJAY KUMAR AND THE HONBLE MS. JUSTICE J. UMA DEVI               

A.S.NO.318 OF 2008 

24-11-2017

Sri Challapalli Venkateswara Rao and others .. Appellants

#Sri Meka Gangadhara Rao.. Respondent 

!Counsel for the Appellants:Sri Srinivasa Rao Velivela and
                            Sri Kambhampati Ramesh Babu 
                                       
^Counsel for Respondent :Sri K.Chidambaram         

<Gist:

>Head Note:   

? CASES REFERRED:     

1. 2007 (3) ALD 617 (DB)
2. (1993) 1 SCC 519
3. (1997) 3 SCC 1
4. 2005 (5) ALD 767 (DB)
5. (2011) 12 SCC 18
6. (2011) 1 SCC 429
7. (2004) 6 SCC 649
8. (2015) 1 SCC 597
9. (1759) 1 Eden 177 : 28 ER 652
10. 2007 (2) ALD 496 (DB)
11. (2015) 8 SCC 695
12. (2013) 15 SCC 27
13. 2016(4) Mh.L.J. 289
14. (1996) 5 SCC 589
15. (2015) 1 SCC 705
16. 1998 (5) ALT 69 (D.B.)
17. 1997 (3) ALT 661 (D.B.)


THE HONBLE SRI JUSTICE SANJAY KUMAR       
AND 
THE HONBLE MS. JUSTICE J.UMA DEVI     

A.S.NO.318 OF 2008 
AND 
A.S.M.P.NO.2618 OF 2017  IN  A.S.NO.318 OF 2008   

J U D G M E N T
(Per Honble Sri Justice Sanjay Kumar)
       
      This first appeal under Section 96 CPC arises out of the judgment and
decree dated 14.03.2008 of the learned Principal District Judge, West
Godavari District at Eluru, in O.S.No.16 of 2007. The appellants are the
defendants in the said suit which was filed for specific performance of the
agreement of sale dated 26.07.2006 (Ex.A1); for execution of a registered
sale deed in respect of the suit property upon receiving the balance sale
consideration; and for delivery of possession. By the judgment under appeal,
the trial Court decreed the suit directing the plaintiff to deposit the balance
sale consideration to the credit of the suit with interest thereon at 12% per
annum; permitting the defendants to receive the said amount and directing
them to execute a registered sale deed in favour of the plaintiff at his expense
within two months from the date of deposit; and also to deliver possession of
the suit schedule property, failing which the plaintiff was granted liberty to
get the regular sale deed through process of law; and if the plaintiff failed to
deposit the balance sale consideration within the stipulated time, directing the
defendants to refund the amount paid by the plaintiff to the tune of
Rs.21,25,000/- with interest thereon at 12% per annum; and to pay a sum of
Rs.1,88,638/- to the plaintiff towards costs.
      By order dated 21.04.2008 passed in A.S.M.P.No.763 of 2008 filed in
this appeal, this Court granted interim stay of execution of the judgment and
decree under appeal subject to deposit of the suit costs by the appellants/
defendants within a time frame. The respondent/plaintiff was permitted to
withdraw the same without furnishing security.
      Parties shall hereinafter be referred to as arrayed in the suit.
      The suit schedule property in O.S.No.16 of 2007 is an extent of Ac.8.78
cents in R.S.Nos.93/2A and 93/2B of Kothapalli Village, Goppannapalem
Panchayat, Denduluru Mandal, Eluru Sub-Registry, West Godavari District. It
was the case of the plaintiff that this property belonged to the second and
third defendants, the son and daughter of the first defendant, and they all
jointly offered to sell it to him at the rate of Rs.6,00,000/- per acre. Ex.A1
suit agreement of sale was executed by them on 26.07.2006 incorporating the
terms and conditions of the transaction. A sum of Rs.10,00,000/- was paid
towards part of the sale consideration on that day out of the total sale
consideration of Rs.52,68,000/-. The defendants acknowledged receipt of this
amount. As per the suit agreement of sale, which was executed in the
presence of Valasapalli Satyanarayana (P.W.2) and Veeranki Satyanarayana, a 
further sum of Rs.10,00,000/- out of the balance sale consideration of
Rs.42,68,000/- was to be paid by him within one month from the date of the
agreement and the balance Rs.32,68,000/- was to be paid within four
months, i.e., by 25.11.2006. The plaintiff claimed that he paid Rs.5,00,000/-
on 02.09.2006 to the first defendant and an endorsement to that effect
(Ex.A2) was made on Ex.A1 agreement of sale. He paid a further sum of
Rs.6,25,000/- to the defendants on 10.11.2006 and an endorsement to that
effect (Ex.A3) was made by them on Ex.A1 agreement of sale. The plaintiff
claimed that though he was always ready and willing to pay the balance sale
consideration and get the registered sale deed at his cost, the defendants
postponed on one pretext or the other representing that the original title
deeds were not available. While so, to his surprise, the plaintiff received Ex.A4
telegram dated 25.11.2006 through Sri Ch.V.Ramana Rao, the defendants 
Advocate, with false allegations to the effect that the defendants waited at
the Sub-Registrars Office (SRO) at Eluru on 25.11.2006 till 4.30 PM to
perform their part of the contract but the plaintiff failed to pay the sale
consideration and perform his part of the contract and that the defendants
terminated Ex.A1 agreement of sale. The plaintiff asserted that the allegations
in Ex.A4 telegram were utterly false and that it was the defendants who failed
to perform their part of the contract within the time stipulated. He further
stated that time was not made the essence of the contract. According to the
plaintiff, the defendants did not go to the Registrars Office on 25.11.2006
and they never informed him about their readiness. The plaintiff further stated
that he waited for some days after receiving the telegram under the
impression that the defendants Advocate would send a detailed notice as they
had no right to revoke or terminate the contract of sale unilaterally. He
reiterated that he was ready and willing to pay the balance sale consideration
and get the registered sale deed at his cost. After receiving Ex.A4 telegram,
the plaintiff got issued registered notice dated 25.01.2007 (Ex.A5) demanding
that the defendants execute the registered sale deed in his favour. He claimed
that the defendants got issued reply notice dated 07.02.2007 (Ex.A6) with
false and untenable allegations. Hence, his suit for specific performance.
      The first defendant filed a written statement. Therein, he admitted
execution of Ex.A1 agreement of sale and receipt of the initial part payment of
Rs.10,00,000/- on 26.07.2006. He however stated that this agreement was
executed as the plaintiff expressed his inability to pay the entire sale
consideration in lump sum directly. He stated that the sale consideration was
to be appropriated by the defendants towards purchase of lands in Nalgonda
District for doing real estate business. He claimed that the plaintiff was
informed of the purpose for which the land was being sold and that two
months time was agreed upon for payment of the entire sale consideration so
as to avoid future problems. The plaintiff agreed and promised to pay the
entire consideration within two months. However, the sale agreement was
drawn up stipulating four months time, contrary to the agreed terms and
conditions. At that stage, the mediators, Vasantha Rao, a Real Estate Broker,
Veeranki Satyanarayana, a Surveyor, Vemuri Satyanarayana and another 
person, by name Satyanarayana, who had settled the transaction, prevailed
upon him and made him believe that the plaintiff would pay the entire sale
consideration within two months. Believing their words, he agreed to
execution of the agreement of sale in its existing form. However, the plaintiff
did not pay the further sum of Rs.10,00,000/- within one month from the
date of execution of the agreement as promised by him. Further, the plaintiff
never informed him of his readiness to get the property registered in his name
by paying the balance sale consideration. Having waited till 26.09.2006, he
tried to secure the presence of the plaintiff to inform him that the balance sale
consideration was urgently required to pay the sale price to his vendors at
Nalgonda so as to avoid forfeiture of the amount of advance already paid by
him. He claimed that the plaintiff was not traceable despite his best efforts.
He further claimed that he contacted the mediators who had settled the suit
transaction and requested them to bring the plaintiff to perform his part of
the contract. Though they promised to do so, neither the plaintiff nor the
mediators made good their promise. He gave details of the time stipulated by
the mediators and the failure of the plaintiff and the mediators to turn up in
accordance therewith. He claimed that on 24.11.2006, he informed the
mediators that he would wait at Registrars Office on 25.11.2006 and asked
them to bring the plaintiff and to see that he performed his part of the
contract. According to him, he and his children, the second and third
defendants, went to the Sub-Registrars Office, Eluru, at 10.00 AM on
25.11.2006 and again, the mediators were informed that they were waiting
for the plaintiff and that if he failed to turn up, the suit agreement of sale
would stand cancelled. However, neither the plaintiff nor the mediators came
to the Sub-Registrars Office at Eluru till the evening of 25.11.2006. The first
defendant stated that he then got issued Ex.A4 telegram to the plaintiff
informing him that the suit agreement of sale stood cancelled and terminated.
He stated that as the plaintiff failed to perform his part of the contract, they
were not liable to pay the advance or register the property in his favour. He
said that the plaintiff issued reply telegram dated 05.12.2006 saying that he
was unable to come to Eluru because of his health and requesting extension of
the agreement time, promising that he would pay interest on the balance. He
further stated that when he approached the vendors at Nalgonda on
26.11.2006 and explained his predicament, he had to forfeit the advance
amount of Rs.25,00,000/- paid by him. He claimed that he sustained loss as
he failed to purchase lands at Nalgonda and the value of such lands increased
abnormally. He claimed that he had lost a golden opportunity to capitalize on
the boom in the land values at Nalgonda.
      No rejoinder was filed by the plaintiff.
      The trial Court settled the following issues for trial:
1.      Whether the plaintiff is entitled to specific performance of
contract as prayed for?
2.      Whether the plaintiff failed to perform his part of contract,
the defendant is neither liable to pay the advance nor
register the regular sale deed as it is time barred as
contended by the defendants in their Written Statement?
3.      Whether the sale agreement dated 25.7.2006 in view of the
telegraphic notice got issued by the defendants dated
25.11.2006 stands cancelled?
4.      To what relief?
       
      The plaintiff examined himself as P.W.1 and Valasapalli Satyanarayana,
one of the mediators and an attestor of Ex.A1 agreement of sale, as P.W.2.
The plaintiff marked in evidence Ex.A1 agreement of sale dated 26.07.2006;
Ex.A2 part-payment endorsement dated 02.09.2006 on Ex.A1; Ex.A3 part- 
payment endorsement dated 10.11.2006 on Ex.A.1; Ex.A4 telegram dated   
25.11.2006 sent by the first defendant; Ex.A5 registered notice dated
25.01.2007 got issued by the plaintiff to the defendants; and Ex.A6 reply
notice dated 07.02.2007 got issued by the defendants.
      The first defendant examined himself as D.W.1. Nekkanti Narasimha
Rao, a third party, was examined as D.W.2 and he spoke of the first
defendants transaction at Nalgonda and his loss of the advance of
Rs.25,00,000/-. He also claimed that he was present at the Sub-Registrars
Office, Eluru, on 25.11.2006 with the first defendant from 10.00 AM onwards.
The defendants also examined the Mandal Surveyor, Denduluru Mandal, as 
D.W.3 and their relation as D.W.4. They marked in evidence Exs.B1 to B6.
Ex.B1 is the reply telegram dated 05.12.2006 issued by the plaintiff to the
first defendant; Ex.B2 is the reply telegram dated 05.12.2006 issued by the
plaintiff to the third defendant; Ex.B3 is the paper publication dated
19.12.2006 issued by the first defendant; Ex.B4 is the bill; Ex.B5 is the
certificate dated 12.11.2007 issued by the Mandal Surveyor, Denduluru; and
Ex.B6 is the cash bill, with arrival date 05.10.2006 and departure date
06.10.2006, issued by Siddhartha Hotel, Nalgonda.
      Upon consideration of the pleadings and evidence, oral and
documentary, the trial Court opined that as time is normally not the essence
of the contract in transactions relating to immovable property and as the
defendants had failed to get the suit schedule property measured by the
Surveyor in the presence of the plaintiff and neighbours, they had failed to
perform their part of the contract. The trial Court further held that receipt of
the part-payments of the sale consideration beyond the stipulated period of
one month from the date of execution of Ex.A1 agreement of sale clearly
showed that time was not the essence of the contract. As the defendants
never called upon the plaintiff to pay the balance sale consideration after
getting the land measured by a Surveyor in his presence and the presence of
neighbours, the trial Court opined that it was not open to them to unilaterally
cancel the agreement of sale. Further, as it was not the case of the defendants
that the plaintiff had no financial capacity to pay the balance sale
consideration even as per their written statement; and as the plaintiff averred
in the plaint that he was always ready and willing to perform his part of the
contract, the trial Court held in favour of the plaintiff on this aspect also. The
trial Court accordingly held in favour of the plaintiff on all the issues and
granted relief, leading to the filing of this appeal.
      Heard Sri Srinivasa Rao Velivela, learned counsel representing Sri
Kambhampati Ramesh Babu, learned counsel for the appellants/defendants, 
and Sri K.Chidambaram, learned counsel for the respondent/plaintiff.
      Sri Srinivasa Rao Velivela, learned counsel, would assert that a plain
reading of Ex.A1 agreement of sale dated 26.07.2006 would demonstrate that
time was very much the essence of the contract. He would point out that the
agreement stipulated that the entire sale consideration had to be paid by
25.11.2006 and even when the plaintiff made the belated payment after the
expiry of the stipulated one month period from the date of execution of the
suit agreement of sale, the endorsement under Ex.A3 categorically required
the plaintiff to make the payment of the balance sale consideration by
25.11.2006, the date initially fixed. Learned counsel would assert that the suit
property was sold by the first defendant and his children, the second and
third defendants, for the purpose of investment in lands at Nalgonda as a real
estate venture and the failure on the part of the plaintiff to come through
caused them irreparable loss. He would further state that though the
agreement stated to the effect that time for payment was four months, the
understanding between the parties was that the plaintiff would pay the
balance consideration within two months and that was the reason why the
first defendant, speaking as D.W.1, gave details of the various demands made
by him for payment of the balance sale consideration long before 25.11.2006.
He would assert that the first defendant waited at the Sub-Registrars Office,
Eluru, on the stipulated date, 25.11.2006, and as the plaintiff failed to turn
up, a telegram was gotten issued at 5.10 PM on the said day canceling the
suit agreement of sale and terminating the transaction thereunder. The said
telegram was received and the plaintiff got issued Exs.B1 and B2 telegrams on
05.12.2006 seeking extension of the agreement due date on the ground of ill-
health. The first defendant thereafter got Ex.B3 public notice published
through his Advocate in Eenadu Telugu newspaper dated 19.12.2006, West 
Godavari District Edition, informing the general public that the suit agreement
of sale dated 25.11.2006 was cancelled. It was long thereafter that the
plaintiff got issued Ex.A5 notice on 25.01.2007, wherein he claimed that he
was always ready and willing to pay the balance sale consideration but the
defendants were postponing on one pretext or the other by representing that
the original title deeds were not available. He however admitted receipt of
Ex.A4 telegram and the intimation thereunder that the defendants had
cancelled and terminated the agreement of sale. He asserted through his
Advocate that the defendants had not gone to the Sub-Registrars Office on
25.11.2006 and never informed him about their readiness. He claimed that
the defendants had no right to revoke or terminate the contract of sale
unilaterally and called upon the defendants to receive the balance sale
consideration and execute a registered sale deed in his favour. In reply, the
defendants issued Ex.A6 legal notice dated 07.02.2007, wherein they
reiterated that their main interest in selling the suit schedule land was to
develop their real estate business at Nalgonda and as the plaintiff had failed
to fulfill the contract in terms of the time stipulations, the defendants had
cancelled the suit agreement of sale. They adverted to the fact that a caveat
petition had been lodged before the Senior Civil Judge, Eluru, and cautioned
the plaintiff not to initiate any vexatious litigation.
      Sri Srinivasa Rao Velivela, learned counsel, would assert that neither in
Ex.A5 legal notice nor in the plaint did the plaintiff ever allege or assert that
the defendants had failed to perform their part of the contract in getting the
suit land measured in his presence. Even in his own deposition as P.W.1, the
plaintiff never raised this issue. Learned counsel would point out that it was
only in the cross-examination of the first defendant, speaking as D.W.1, that
this aspect was raised for the first time.  He would point out that all along the
claim of the plaintiff was that the defendants were putting off execution of a
registered sale deed on the pretext that the original title documents were not
available. He would contend that the finding of the trial Court that the
defendants had failed to perform their part of the contract by getting the suit
land measured in the presence of the plaintiff and neighbours was wholly
unsustainable as this was never the plea put forth by the plaintiff, either in his
pleadings or in his own evidence. Learned counsel would further point out
that though the plaintiff never claimed either in his pleadings or in his
examination-in-chief that he had gone to the Sub-Registrars Office on
25.11.2006, he surprisingly claimed in his cross-examination that he was
present at the Sub-Registrars Office on 25.11.2006 for complying with the
conditions under Ex.A1, but the defendants did not turn up and he further
claimed that he had complained about the absence of the defendants to the
mediators. Learned counsel would point out that Ex.A5 legal notice never
mentioned the fact that the plaintiff had gone to the Sub-Registrars Office on
25.11.2006. He would therefore argue that as specific performance is not only
a discretionary relief but also an equitable one, the conduct on the part of the
plaintiff in changing his stands time and again and building up his case as he
went along clearly disentitled him to claim such relief. Learned counsel would
point out that though Section 22 of the Specific Relief Act, 1963 (for brevity,
the Act of 1963) provides that refund of the earnest money or deposit made
by the plaintiff, in case his claim for specific performance is refused, should
not be granted unless it has been specifically claimed, the trial Court directed
so though the plaint prayer did not advert to any such refund claim. He would
also contend that perusal of the judgment under appeal reflects that the trial
Court completely lost sight of the requirement of Section 16(c) of the Act of
1963 and that the entire burden was cast upon the defendants as if the onus
was upon them to prove that the plaintiff was not entitled to specific
performance. He would rely upon MOHAMMED IBRAHIM V/s.     
MOHAMMED ABDUL RAZZAK , wherein a Division Bench of this Court     
affirmed the settled proposition that the burden of proof is generally on the
plaintiff who must succeed on the strength of his own case and he cannot be
assisted by weaknesses, real or apparent, in the case of the defendant and
that a defect in the evidence of the party on whom the burden of proof lies
cannot be cured by criticism of the evidence of the other side. Learned counsel
would also contend that once Ex.A1 agreement of sale stood cancelled under
Ex.A4 telegram, to the knowledge of the plaintiff, he necessarily had to seek
declaratory relief with regard to the validity of such cancellation and without
doing so, the plaintiff could not ask for specific performance of the cancelled
agreement of sale.
      Countering these arguments, Sri K.Chidambaram, learned counsel,
would state that Ex.A1 agreement of sale mentioned the requirement of the
land being measured in the presence of the plaintiff and therefore, the failure
on the part of the defendants to comply with the same disentitled them to
claim that it was the plaintiff who was not ready and willing to perform his
part of the contract. He would submit that time is not the essence of the
contract in transactions relating to immovable property and would point out
that the action of the defendants in receiving part-payments of the sale
consideration beyond the stipulated period of one month from the date of
execution of the agreement of sale clearly demonstrated that they did not
treat the time stipulations thereunder as being of essence. Learned counsel
would further assert that the demands made by the first defendant to pay the
balance sale consideration even before the stipulated date 25.11.2006 clearly
demonstrated his anxiety and eagerness to cancel the agreement on one
pretext or the other. He would further argue that as Ex.A1 agreement of sale
never contemplated cancellation of the suit transaction, the unilateral act on
the part of the first defendant in doing so under Ex.A4 telegram is a nullity
and as such cancellation is non-est in the eye of law, there was no need for
his client to seek any declaratory relief as to its validity. He would state that
by way of abundant caution his client filed A.S.M.P.No.2618 of 2017 in this
appeal seeking amendment of the plaint by including a prayer for a
declaration that cancellation of Ex.A1 suit agreement of sale under Ex.A4
telegram dated 25.11.2006, forfeiting the advance sale consideration, was
illegal and void and to set aside the same. Learned counsel would further
contend that once the trial Court exercised its discretion and granted the
equitable relief of specific performance to the plaintiff, the appellate Court
should be slow to interfere therewith. He would assert that the judgment
under appeal is fully justified on facts and in law and pray that the appeal be
dismissed. In the alternative, he would submit that if given more time, his
client would seek the relief of refund of the sale consideration already paid by
seeking further amendment of the plaint.
      In reply, Sri Srinivasa Rao Velivela, learned counsel, would again point
out that no mention was made of the requirement of survey of the suit land as
a condition precedent by the plaintiff in either his demand notice or his
pleadings. Further, the plaintiff did not even mention this aspect during his
examination-in-chief. It was only in the cross-examination of the first
defendant, speaking as D.W.1, that this aspect was raised for the first time.
He would point out that had that been the issue, the plaintiff would have
demanded that the defendants undertake measurement of the land but there
was never any such move on his part.  He would further point out that the
urgency on the part of his clients was clear from the averments made in paras
39 and 40 of the written statement and that, in spite of the same, they
waited till the last day, 25.11.2006, and only thereafter cancelled the suit
agreement of sale. Learned counsel would point out that even if it was to be
accepted that such measurement had to be undertaken and his clients failed to
do so, it was wholly unconnected to the issue of payment of the sale
consideration in terms of the suit agreement of sale. He would argue that
both the issues could not be clubbed together so as to hold in favour of the
plaintiff in the manner that the trial Court did. Learned counsel would again
assert that in the absence of a claim for refund, the trial Court ought not to
have granted such relief to the plaintiff and that it would be equally
unsustainable in law for this Court to entertain such a request without an
actual claim from the plaintiff. As regards the amendment presently sought,
the learned counsel would point out that such amendment was sought by the
plaintiff only at the fag end, after his arguments were over. He cited case law
in support of his contention that a suit for specific performance based on a
cancelled agreement of sale could not be entertained.
      Upon consideration of the record and the arguments advanced by the
learned counsel, the following points arise for determination in this appeal:
1.      Whether time was the essence of the contract under Ex.A1
suit agreement of sale?
2.      Whether the plaintiff averred and proved his readiness and
willingness to perform his part of the contract under Ex.A1
suit agreement of sale in accordance with law?
3.      Whether the respective parties performed their part of the
contract under Ex.A1 suit agreement of sale and if not, the
effect thereof?
4.      Whether the defendants cancellation of Ex.A1 suit agreement
of sale under Ex.A4 telegram dated 25.11.2006 is lawful and
valid and what is its effect in law?
5.      Whether the plaintiff would be entitled to refund of the sale
consideration already paid by him in the event his prayer for
specific performance is refused?
6.      Whether the judgment and decree under appeal are
sustainable in law?

      POINT 1:
      Ex.A1 agreement of sale dated 26.07.2006 reads to the following
effect: The second and third defendants inherited Ac.8.78 cents along with
other extents from their grand father, late Challapalli Kotaiah, under
registered Will dated 26.04.1984. The said land was agreed to be sold by the
defendants to the plaintiff to enable them to meet their family expenses,
sundry debts and to appropriate the remaining amount for their improvement
and development. The defendants acknowledged receipt of Rs.10,00,000/-
out of the total sale consideration of Rs.52,68,000/-. A further sum of
Rs.10,00,000/- was to be paid within one month from the date of the
agreement and the balance sale consideration of Rs.32,68,000/- was to be
paid within four months, i.e., by 25.11.2006. The defendants declared that
they did not create any third party interest over the land sold and undertook
to get it measured in the presence of the plaintiff and neighbours by
25.11.2006 so that the exact extent of Ac.8.78 cents could be delivered to
them. They stated that as per measurements, the account could be settled in
terms of the agreed rate of Rs.6,00,000/- per acre.
      Notably, the aforestated agreement of sale did not mention the
pressing need for the sale consideration to enable the defendants to make
payment for the land proposed to be purchased by them at Nalgonda. On the
other hand, the agreement reads to the effect that the sale consideration was
to be spent towards their family expenses and sundry debts and only the
balance left thereafter was to be utilized for family improvement and
development. That being said, it cannot be construed that merely because the
defendants did not state this, it would mean that the agreement could be
acted upon at any time that the plaintiff chose. Be it noted that there was a
clear stipulation that both the parties to the agreement contemplated that the
transaction should be concluded by 25.11.2006. The agreement reads to the
effect that payments were to be made by the plaintiff within the time
stipulated and the obligation cast on the defendants was that they would get
the land measured in the presence of the plaintiff and neighbours by
25.11.2006 so that the exact extent sold thereunder could be delivered to the
plaintiff. This was necessary as the agreement itself recorded that the second
and third defendants inherited a larger extent of property from their grand
father and settlement of the account was left open till the actual measurement
was done so that it could be finalized thereafter, at the rate of Rs.6,00,000/-
per acre. It is an admitted fact that the plaintiff failed to adhere to the first
stipulation that he would pay Rs.10,00,000/- within one month from the date
of execution of the agreement. As per this condition, he had to pay the said
sum by 26.08.2006. It is however an admitted fact that he paid Rs.5,00,000/-
on 02.09.2006 under Ex.A2 endorsement signed by the first defendant and
Rs.6,25,000/- on 10.11.2006 under Ex.A3 endorsement by all the defendants.
Significantly, Ex.A3 endorsement stipulated that the balance sale
consideration of Rs.31,43,000/- had to be paid by the plaintiff in terms of the
agreement date, i.e., 25.11.2006, and it was for the plaintiff to get the
registration at his own expense.
      The question that would arise is whether Ex.A1 agreement of sale made
time the essence of the contract.  No doubt, mention was not made in the
said agreement of any urgency for money on the part of the defendants in
relation to their proposed purchase of land at Nalgonda. However, specific
mention was made of 25.11.2006 being the outer temporal limit for
completion of the transaction. This date found mention not only in the body
of the agreement of sale but was again reiterated under Ex.A3 endorsement,
when the plaintiff made belated part-payment of the sale consideration
beyond the stipulated one month from the date of the agreement, but within
the final date, 25.11.2006. It may be noted that no provision was made in
the agreement that in the event the sale consideration was not paid by the
said date, it would carry interest. In cases where a stipulation is made as to
the interest that would have to be paid in the event the date stipulated is not
adhered to, it can clearly be inferred that time is not the essence of the
contract. That is however not the case in so far as the suit agreement of sale
is concerned. The intention of the parties was therefore explicit that the sale
transaction should be concluded by that date.
      The leading judgment on the issue as to whether time is the essence of
the contract is that of a Constitution Bench in CHAND RANI V/s. KAMAL
RANI .  Both the learned counsel relied upon this decision. The Supreme
Court observed therein that it is a well accepted principle that in the case of
sale of immovable property, time is never regarded as the essence of the
contract and there is a presumption against time being the essence of the
contract. However, under the law of equity which governs the rights of the
parties in the case of specific performance of contract to sell real estate, law
looks not at the letter but at the substance of the agreement and it has to be
ascertained whether under the terms of the contract, the parties named a
specific time within which completion was to take place, really and in
substance it was intended that it should be completed within a reasonable
time. The Supreme Court held that an intention to make time the essence of
the contract must be expressed in unequivocal language. Upon analysis of case
law, it was observed that even if time is not the essence of the contract, the
Court may infer that it is to be performed in a reasonable time if the
conditions are evident:  (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.  On facts, it was found that once
there was a stipulation as to payment of the amount within a time frame, the
parties intended to make time the essence of the contract. The clause in the
agreement of sale in that case required the sum of Rs.98,000/- to be paid
within ten days and the balance at the time of registration of the sale deed.
As the said sum of Rs.98,000/- was not paid within the ten day period
stipulated, the Supreme Court opined that the plaintiff was never willing to
make the payment and accordingly held him disentitled to specific
performance.
      Again, in K.S.VIDYANADAM V/s. VAIRAVAN , the Supreme Court   
observed that though a time-limit fixed in the agreement of sale may not
amount to making time the essence of the contract, it must yet have some
meaning, as such time-limit would not have been prescribed for nothing, and
it could not be stated as a rule of law or a rule of prudence that where time is
not made the essence of the contract, all stipulations of time provided in the
contract have no significance or meaning or that they are as good as non-
existent. The Supreme Court held that this would only mean that while
exercising its discretion, the Court should also bear in mind that when the
parties prescribe certain time-limits for taking steps by one or the other party,
it must have some significance and that the said time-limits cannot be ignored
altogether on the ground that time has not been made the essence of
contracts relating to immovable properties.
      In NALAMATHU VENKAIYA (DIED) BY L.R. V/s. B.S.   
NEELKANTA , a Division Bench of this Court observed that though there may
be no express term in the agreement, the conditions stipulated for payment
would go to show that time is the essence of the contract.
      In SARADAMANI KANDAPPAN V/s. S.RAJALAKSHMI , referring     
to CHAND RANI2, the Supreme Court considered the terms of the agreement 
of sale in that case to find out whether time was the essence as there was a
conscious effort to delink the term relating to payment of price from the term
relating to execution of the sale deed and making time the essence only in
regard to payment of the balance sale consideration. The Supreme Court held
that time was of the essence to that extent. Adverting to the fact that the
principle that time was not of essence in contracts relating to immovable
properties took shape in an era when market values of immovable properties
were stable and did not undergo any marked change over a period of time,
the Supreme Court observed as under:
      37. The reality arising from this economic change cannot
continue to be ignored in deciding cases relating to specific
performance. The steep increase in prices is a circumstance which
makes it inequitable to grant the relief of specific performance where
the purchaser does not take steps to complete the sale within the
agreed period, and the vendor has not been responsible for any delay
or non-performance. A purchaser can no longer take shelter under the
principle that time is not of essence in performance of contracts
relating to immovable property, to cover his delays, laches, breaches
and non-readiness. The precedents from an era, when high inflation
was unknown, holding that time is not of the essence of the contract in
regard to immovable properties, may no longer apply, not because the
principle laid down therein is unsound or erroneous, but the
circumstances that existed when the said principle was evolved, no
longer exist. In these days of galloping increases in prices of
immovable properties, to hold that a vendor who took an earnest
money of say about 10% of the sale price and agreed for three months
or four months as the period for performance, did not intend that time
should be the essence, will be a cruel joke on him, and will result in
injustice. Adding to the misery is the delay in disposal of cases relating
to specific performance, as suits and appeals therefrom routinely take
two to three decades to attain finality.  As a result, an owner agreeing
to sell a property for rupees one lakh and received rupees ten thousand
as advance may be required to execute a sale deed a quarter century
later by receiving the remaining rupees ninety thousand, when the
property value has risen to a crore of rupees.

      In the present case, when the parties specifically put it in writing that
the sale transaction between them should be completed by a particular date
and there is no implied agreement between them that any extension of such
date is contemplated, be it by way of interest payment or otherwise, it is not
for the Court to examine as to what was the urgency on the part of either
party to stipulate that time is of essence. The mention of the date by which
the transaction should be concluded, with nothing further to dilute its
stipulation, is sufficient indication of consensus ad idem between the parties
that the said date carries sanctity. The normal rule that time would not be of
essence in a contract relating to immovable property has no inflexible
application. Each case would have to turn upon its own individual facts. In this
regard, the trial Court only went by the fact that the defendants accepted the
belated payment made by the plaintiff under Exs.A2 and A3 endorsements,
losing sight of the fact that by such payment the defendants did not enlarge
the time for completion of the contract and it was once again reiterated under
Ex.A3 endorsement in explicit terms. Time was therefore of the essence of
contract under Ex.A1 agreement of sale. This point is therefore answered in
favour of the defendants.
      POINT 2:
      As to the issue of the plaintiff averring and proving his readiness and
willingness to perform his part of the contract, it may be noticed that Section
16(c) of the Act of 1963 stipulates in no uncertain terms that such burden is
wholly cast upon the plaintiff in a suit for specific performance. This provision
reads as under:
      16. Personal bars to relief. Specific performance of a contract
cannot be enforced in favour of a person
(a)     . 
(b)     . 
(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 the
performance of which has been prevented or waived by the
defendant.
Explanation.For the purpose of clause (c),
(i)     where a contract involves the payment of money, it is not
essential for the plaintiff to actually tender to the defendant or
to deposit in court any money except when so directed by the
court;
(ii)    the plaintiff must aver performance of, or readiness and
willingness to perform, the contract according to its true
construction.

      In this regard, it may be noticed that the case of the defendants, in
terms of Ex.A4 telegram, was that the plaintiff had agreed to pay the entire
sale consideration on or before 25.11.2006 and seek registration, but in spite
of their demand, he had failed to pay the sale consideration and perform his
part of the contract. The telegram further recorded that the defendants had
waited at the SRO, Eluru, till 4.30 PM to perform their part of the contract by
registering the land in his favour and they therefore terminated the terms and
conditions of the said agreement. In response to this, according to the
defendants, the plaintiff addressed Exs.B1 and B2 telegrams dated
05.12.2006 seeking extension of the agreement due date.  However, in his
deposition, the plaintiff denied having sent these telegrams. In their reply
notice dated 07.02.2007 (Ex.A6), the defendants specifically referred to the
fact that they had received Exs.B1 and B2 telegrams dated 05.12.2006
whereunder the plaintiff sought extension of the agreement due date.
However, the plaintiff did not choose to respond thereto and disclaim
issuance of these telegrams. Even in his plaint, the plaintiff, though he was
well aware by then of the fact that the defendants claimed that they had
received telegrams from him under Exs.B1 and B2 dated 05.12.2006 seeking 
extension of the agreement due date, did not deny it or advert to any failure
on their part in performing their part of the contract. In his legal notice
(Ex.A5), the plaintiff merely stated that he was always ready and willing to
pay the balance sale consideration but did not offer any explanation as to why
he failed to turn up on 25.11.2006 with the balance sale consideration.
Significantly, no mention was made by him of the defendants having failed to
perform their promise of getting the land measured in his presence. He
however admitted receipt of Ex.A4 telegram, whereby the defendants
cancelled the suit agreement of sale. Further, this legal notice did not mention
anything about the plaintiff having gone to the Registrars Office on
25.11.2006. All through, his only claim was that the defendants were
postponing execution of the registered sale deed representing that the
original title deeds were not available. It may also be noticed that Ex.A1
agreement of sale did not stipulate anything at all about the presentation of
original documents as a condition precedent for payment of the balance sale
consideration or even for registration of the sale deed.
      Speaking as P.W.1, the plaintiff again harped upon the alleged
representation of the defendants that the original title deeds were not
available as an excuse to postpone execution of the sale deed. He merely
stated that he was always ready and willing to pay the balance sale
consideration but did not offer any proof of this claim. As is clear from the
Explanation to Section 16(c) of the Act of 1963, it is not necessary for the
plaintiff in a suit for specific performance to tender the money to the
defendant or deposit it in court but he must at least prove his capacity, apart
from his readiness and willingness, to perform his part of the contract.
Significantly, the plaintiff did nothing whatsoever to prove that he had either
the capacity to pay the balance sale consideration on the stipulated date,
25.11.2006, or that it was the defendants own inaction which led to the
failure of the transaction.
      In J.P.BUILDERS V/s. A.RAMADAS RAO , the Supreme Court relied   
on its earlier decision in P. DSOUZA V/s. SHONDRILO NAIDU  and 
affirmed that readiness and willingness on the part of the plaintiff to perform
his part of the contract would depend upon the question as to whether the
defendant did everything which was required of him to be done in terms of
the agreement for sale. In that case, the balance sale consideration was to be
paid within three months from the date the defendants obtained a no-
objection certificate from the authority concerned and secured the title deeds
after clearing a mortgage loan. Further, the plaintiff, in proof of his readiness
and willingness to perform his part of the contract, not only took a specific
plea in that regard in the plaint but also placed relevant materials in the form
of letters to show that he was corresponding with the bank for early
settlement of the dues. He also produced documentary proof of sufficient
financial means. The conclusion arrived at by the Courts below that the
plaintiff proved and complied with the mandate of Section 16(c) of the Act of
1963 was therefore upheld.
      In K.PRAKASH V/s. B.R.SAMPATH KUMAR , the Supreme Court     
reiterated that the remedy of specific performance is an equitable remedy and
the Court while granting such relief exercises discretionary jurisdiction.
Referring to the decision of the Court of Chancery in ATTORNEY GENERAL 
V/s. WHEATE , the Supreme Court observed that the principle that can be
enunciated therefrom is that where the plaintiff brings a suit for specific
performance of contract for sale, the law insists upon a condition precedent to
the grant of decree that the plaintiff must show his continued readiness and
willingness to perform his part of the contract in accordance with its terms
from the date of contract to the date of hearing and normally, when the trial
Court exercises its discretion in one way or the other after appreciation of
entire evidence and materials on record, the appellate Court should not
interfere unless it is established that the discretion has been exercised
perversely, arbitrarily or against judicial principles. It was further observed
that subsequent rise in the price would not be treated as a hardship entailing
refusal of the decree for specific performance. Rise in price is a normal change
of circumstances and, therefore, on that ground a decree for specific
performance cannot be reversed.
      In C.MANOHAR REDDY V/s. ALOPI SHANKER , a Division Bench     
of this Court observed that when the self-serving evidence adduced by the
plaintiffs is not supported by any independent evidence and is also not in
accordance with the probabilities of the case, it could not be believed that the
plaintiffs were ready and willing to perform their part of the contract.  That
was also a case where the plaintiffs failed to make payments in terms of the
agreement, which required them to do so within a time schedule.
      Mere averment in the plaint coupled with reiteration in his deposition
by the plaintiff in the present case is not sufficient in itself to prove the
readiness and willingness of the plaintiff. The trial Court seems to have
misguided itself in this regard by casting the burden upon the defendants to
show that the plaintiff was not capable of making the payment. As it was
their case all along that the plaintiff failed to turn up and pay the balance sale
consideration, the burden was fully upon the plaintiff to prove his readiness
and willingness to pay the balance sale consideration. All the more so, as he
admittedly made belated payments earlier, beyond the time stipulation in
Ex.A1 agreement of sale, clearly casting a doubt on his capacity to make the
final payment within the stipulated date. It is therefore manifest that he
dismally failed in discharging the burden cast upon him in this regard. This
point is therefore answered in favour of the defendants.
      POINT 3:
      Though much ado was made about the failure on the part of the
defendants in getting the land measured by 25.11.2006 in the presence of the
plaintiff, it was never the case of the plaintiff that he made ready the balance
sale consideration to be paid and despite the same, the defendants failed to
get the land measured in his presence and he therefore could not pay the sale
consideration.
      In this regard, it may be noted that Chapter IV of the Indian Contract
Act, 1872 (for brevity, the Act of 1872) deals with performance of contracts
and performance of reciprocal promises is covered by Sections 51 to 58
thereunder. Section 51 states that when a contract consists of reciprocal
promises to be simultaneously performed, no promisor need perform his
promise unless the promisee is ready and willing to perform his reciprocal
promise.  Illustrations (a) and (b) thereunder are of significance and are
extracted hereunder:
      (a) A and B contract that A shall deliver goods to B to be paid
for by B on delivery.  A need not deliver the goods, unless B is ready
and willing to pay for the goods on delivery.
      B need not pay for the goods, unless A is ready and willing to
deliver them on payment.
      (b) A and B contract that A shall deliver goods to B at a price to
be paid by installments, the first installment to be paid on delivery.
      A need not deliver, unless B  is ready and willing to pay the first
installment on delivery.
      B need not pay the first installment, unless A is ready and willing
to deliver the goods on payment of the first installment.

      Section 52 deals with the order of performance of reciprocal promises
and provides that where the order in which reciprocal promises are to be
performed is expressly fixed by the contract, they shall be performed in that
order; and where the order is not expressly fixed by the contract, they shall
be performed in that order which the nature of the transaction requires.
Illustration (a) to this provision reads as under:
      (a) A and B contract that A shall build a house for B at a fixed
price.  A s promise to build the house must be performed before B s
promise to pay for it.

      Section 55 states to the effect that failure of the promisor to perform a
contract in which time is essential would entail the contract becoming
voidable at the option of the promisee.
      Significantly, not only did the plaintiff fail to issue any notice to the
defendants with regard to measurement of the land but he did not even
choose to advert to this aspect either in his legal notice or in his pleadings or
even in his own evidence as P.W.1. It is therefore clear that this ground was
struck upon only at a later stage during the course of the suit proceedings,
while the first defendant was being cross-examined as D.W.1. It may be
noticed that D.W.1, in his cross-examination, specifically asserted that he got
the land measured with the help of the Denduluru Mandal Surveyor. It was
only at this stage that a suggestion was put to him that he and the other
defendants intentionally delayed by not getting the land measured by
informing the plaintiff and thereby failed to perform their part of the contract.
D.W.3 is the Mandal Surveyor at Denduluru Mandal. According to him, the first
defendant made an application to his office to measure the suit property and
he got issued notices to the plaintiff and surrounding land owners. He then
visited the suit property and got it measured and issued Ex.B5 certificate. He
produced the office register before the trial Court in proof of his claim. In his
cross-examination, he admitted that no particulars of the measurement were
noted in Ex.B5, but denied the suggestion that he got issued Ex.B5 certificate
to accommodate the defendants. D.W.1 marked Ex.B5 certificate issued by the 
Mandal Surveyor which reads to the effect that the suit agreement land
admeasuring Ac.8.78 cents in Survey No.93/2 was surveyed by him on 
20.10.2006 and boundaries were fixed. According to D.W.1, the plaintiff did
not attend at the time of the measurement though he was informed about
undertaking of such measurement through the surveyor.
      In SARADAMANI KANDAPPAN5, dealing with the aspect of   
performance of reciprocal promise, the Supreme Court observed that the
contract in that case contained two different streams of provisions for
performance and one related to payment of the balance consideration in the
manner provided, which was not dependent upon any performance of any 
obligation by the vendors. There was no provision that payment of sale
consideration would depend upon satisfaction of the plaintiff regarding title
and nil encumbrance. Therefore, linking of the payment to such satisfaction
was held to be unsustainable.
      In PADMAKUMARI V/s. DASAYYAN , a plea similar to the one 
taken by the plaintiff in this case was advanced to the effect that the land had
to be measured and therefore, there was a failure on the part of the
defendants in performing their part of the contract. However, the Supreme
Court found that the question of taking measurement did not arise before the
plaintiff performed his part of the contract regarding payment of the balance
consideration. The decree of specific performance granted by the Courts
below was accordingly set aside.
      Though no acceptable evidence has been let in by the defendants of
any transaction at Nalgonda and the alleged loss of the advance amount of
Rs.25,00,000/- paid by them, the same is of no real relevance in this appeal.
Irrespective of whether they had really entered into such a transaction and
suffered loss owing to the suit transaction falling through in terms of the time
stipulation therein, once it is proved that the parties to Ex.A1 agreement of
sale intended that the transaction thereunder should be concluded by the
stipulated date, 25.11.2006, no more is required to be proved by the
defendants. Once time is of essence to the contract, failure of the one party to
deliver in terms of the promise made under the contract would be fatal to its
claim for specific performance thereafter. In the present case, bare perusal of
Ex.A1 agreement of sale reflects that payment of the balance sale
consideration by the plaintiff was independent of and was a condition
precedent to the measurement of land by the defendants.  There is no reason
to doubt the Mandal Surveyor (D.W.3) as he produced the office register in
proof of his claim that upon the application made by the first defendant, he
undertook survey of the suit land after giving due notice to all parties
concerned, including the plaintiff and the neighbouring land owners. Ex.B5
certificate therefore commends credibility and is worthy of acceptance. No
doubt, the plaintiff was not present at the time of such survey and
measurement, but according to the first defendant as well as the Mandal
Surveyor (D.W.3), notice was given to the plaintiff but he did not choose to
attend. This aspect of the matter therefore stands settled and it is not open
to the plaintiff to now claim that the defendants failed to perform their part
of the contract in getting the land measured in his presence in terms of the
suit agreement of sale. The first defendant also did not state in his written
statement or in his reply notice that he got the land measured but this fact
was never put in issue until his cross-examination and he then got examined
the Mandal Surveyor and marked Ex.B5 certificate issued by the said Mandal
Surveyor. There is therefore no failure on the part of the defendants in
performing their reciprocal promise of getting the land measured. This point
also is therefore answered in favour of the defendants.
      POINTS 4 & 5:
      It is an admitted fact that the plaintiff received Ex.A4 telegram on
25.11.2006 intimating him of the termination of the suit agreement of sale by
the defendants. Exs.B1 and B2 telegrams are pressed into service by the
defendants, whereunder the plaintiff allegedly sought extension of the
agreement due date, but the plaintiff denied having issued these telegrams at
a later stage though he did not say so in his pleadings. In any event, he did
nothing till 25.01.2007 when he got issued Ex.A5 notice. In the plaint, having
adverted to cancellation of the suit agreement of sale under Ex.A4 telegram,
the plaintiff surprisingly chose not to seek any declaratory relief in relation
thereto. He neither asked for a declaration that the said cancellation was
illegal nor did he claim that it was void ab initio.
      In I.S.SIKANDAR V/s. K.SUBRAMANI , the Supreme Court 
unequivocally held that a suit for specific performance cannot be based on a
cancelled agreement of sale. The agreement in that case was terminated as
the plaintiff therein failed to perform his part of the contract.  However, in his
prayer in the suit, while seeking specific performance of the said agreement of
sale, the plaintiff did not seek a declaration that its termination was bad in
law. In the absence of such prayer by the plaintiff, the Supreme Court held
that grant of a decree for specific performance on the basis of a non-existent
agreement of sale was wholly unsustainable in law and that the suit itself was
not maintainable. Reference was also made to CHAND RANI2 and it was 
observed that if the parties agreed to a specified time in the agreement to
perform their part of the agreement, then time is the essence of the contract
and parties should adhere to the same.
      The principle laid down by the Supreme Court in I.S.SIKANDAR12 was
followed and applied in C.PADMAWATI NAIDU V/s. FRIENDS     
CO-OPERATIVE HSG. SOCIETY LTD., NAGPUR .       
       It was only after these judgments were cited by Sri Srinivasa Rao
Velivela, learned counsel, that Sri K.Chidambaram, learned counsel, sought an
adjournment to the next day to advance further arguments and then filed
A.S.M.P.No.2618 of 2017 seeking to amend the plaint so as to include a
prayer for declaratory relief that the cancellation of Ex.A1 agreement of sale
dated 26.07.2006 under Ex.A4 telegram dated 25.11.2006 and forfeiture of
the advance sale consideration was illegal and void and to set aside the same.
In terms of the proviso to Order 6 Rule 17 CPC, liberty given to a litigant to
amend his pleadings is severely curtailed if such prayer is made after
commencement of the trial and it cannot be allowed except for valid and
justified reasons. Presently, permitting the plaintiff to seek amendment of his
prayer in the suit at this late stage, after case law is cited by the other side
demolishing the very foundation of his suit, would be nothing short of
permitting abuse of process of this Court, apart from causing irreparable loss
to the defendants. A.S.M.P.No.2618 of 2017 is therefore wholly lacking in
bonafides and is liable to be dismissed.
      Though Sri K.Chidambaram, learned counsel, would contend that
cancellation of the suit agreement of sale under Ex.A4 telegram is void in law
and therefore need not be challenged, this Court is not persuaded to agree.
Once time is treated to be of essence under Ex.A1 suit agreement of sale, the
failure on the part of the plaintiff to adhere to the stipulation as to completion
of the contract by 25.11.2006 would entitle the aggrieved defendants to
cancel and terminate such agreement. As per the defendants claim, having
waited up to the evening on the said date, they issued Ex.A4 telegram at 5.10
PM.  Further, even if time is not treated as of essence in a contract relating to
immovable property, it does not mean that the party aggrieved by non-
performance of his part of the contract by the other side has no right to
terminate the contract, though in such cases it may be necessary for such
party to call upon the defaulting party to make good the lapses on its part
and comply with its part of the contract before resorting to termination, but
when time is the essence of the contract, no such notice requires to be given
and once the stipulated date for performance expires, the aggrieved party
may straightaway resort to cancellation of the contract without further ado.
That is exactly what the defendants did in the case on hand. It is therefore
fallacious for the plaintiff to contend that he did not have to seek declaratory
relief in relation to the cancellation of the suit agreement and that the same
must automatically be treated as void and non-est in the eye of law.
      It may be noted that even under A.S.M.P.No.2618 of 2017, the plaintiff
did not choose to include a prayer for refund of the sale consideration already
paid by him. It is well settled that a prayer under Section 22 of the Act of
1963 can be permitted even at the appellate stage but it must be bonafide.
However, when the plaintiff did not seek such relief in his own wisdom right
up to the stage of arguments and having filed an amendment petition at this
late stage, he did not choose to include a prayer for such relief even therein,
this Court is left with no alternative except to abide by the statutory mandate
of the proviso to Section 22(2) of the Act of 1963.  The provision is extracted
hereunder:
      22. Power to grant relief for possession, partition,
refund of earnest money, etc.(1) Notwithstanding anything to
the contrary contained in the Code of Civil Procedure, 1908 (5 of
1908), any person suing for the specific performance of a contract for
the transfer of immovable property may, in an appropriate case, ask
for 
(a) possession, or partition and separate possession, of the
property, in addition to such performance; or
(b) any other relief to which he may be entitled, including the
refund of any earnest money or deposit paid or made by him, in
case his claim for specific performance is refused.
      (2) No relief under clause (a) or clause (b) of sub-section (1)
shall be granted by the court unless it has been specifically claimed:
      Provided that where the plaintiff has not claimed any such relief
in the plaint, the court shall, at any stage of the proceeding, allow him
to amend the plaint on such terms as may be just for including a claim
for such relief.

      Though Sri K.Chidambaram, learned counsel, would fervently plead that
his client may be permitted to further amend his plaint and include a prayer
seeking such relief, this Court is not impressed. A litigant who is not diligent
about his rights and does not even choose to frame his prayers correctly, be it
before the trial Court or at least before the appellate Court, has no one to
blame but himself. It is too late in the day for the plaintiff to now wake up
and resort to measures, which were available to him in law all along, for
seeking alternative relief so as to make good the lapses on his part after the
hearing is practically over. The request of Sri K.Chidambaram, learned counsel,
to permit such amendment of the prayer is rejected.
      Pertinent to note, in SARADAMANI KANDAPPAN5, the contract 
provided that payments were to be made on due dates and in case of failure
on the part of the purchaser, the vendors shall cancel the agreement. There
was no clause in the contract with regard to forfeiture of the amounts already
paid in the event of breach by the purchaser. As the amounts were not paid
within the time stipulated, the defendants cancelled the sale agreement.
Confirming the decision of the High Court that the plaintiff was not entitled
to the relief of specific performance, the Supreme Court directed refund of the
sale consideration already paid along with interest thereon. It may however
be noted that the defendants therein, in their written statement, specifically
agreed to refund all the amounts received by them from the plaintiff. Further,
the Court did not consider the mandate of the proviso to Section 22(2) of the
Act of 1963 though the plaintiff in that case did not seek refund of the sale
consideration paid by him.
       These points are therefore answered in favour of the defendants.
      POINT 6:
      On the above analysis, this Court finds that time was the essence of
the contract in so far as the suit agreement of sale is concerned; the plaintiff
failed to adequately aver and prove his readiness and willingness to perform
his part of the contract under Ex.A1 suit agreement of sale dated 26.07.2006;
that the plaintiff failed to perform his independent and foremost promise
under the contract of paying the balance sale consideration within the
stipulated time; that the defendants performed their part of the contract in
getting the suit land measured before 25.11.2006 as stipulated in the suit
agreement of sale; that cancellation of the suit agreement of sale under Ex.A4
telegram dated 25.11.2006 was lawful and valid; that the failure of the
plaintiff to seek a declaration that such cancellation was illegal is fatal to his
case; that the trial Court gravely erred in decreeing the suit for specific
performance based on the cancelled agreement of sale; that the failure on the
part of the plaintiff to seek the alternative relief of refund of the sale
consideration already paid by him is fatal to such a plea being advanced at
this late stage; and that the trial Court completely misguided itself in treating
the defendants as the plaintiffs in the suit and in casting upon them the
burden to disprove the plaintiffs claim.
      Further, the manner in which the plaintiff conducted himself in the
course of the suit proceedings leaves this Court in no doubt that he
completely lacked bonafides. The attempts on his part to change his version
and build up his case from stage to stage are clear and manifest. He did not
deny issuing Ex.B1 and Ex.B2 telegrams in his pleadings but did so only in his
deposition. His story all along was that the defendants failed to perform their
part of the contract representing that the original title documents were not
available but for the first time, during the cross-examination of the first
defendant (D.W.1), he came up with the new case that the defendants failed
to get the land measured in his presence. Further, during his own cross-
examination as P.W.1, he suddenly came up with the story that he was 
present at the Registrars Office on 25.11.2006 to comply with the suit
agreement of sale and get a regular registered sale deed and that it was the
defendants who did not turn up. This was never his claim earlier.
      Significantly, in LOURDU MARI DAVID V/s. LOUIS CHINNAYA   
AROGIASWAMY , the Supreme Court affirmed that a person who comes to     
Court with a false plea is not entitled to the equitable relief of specific
performance. Again, in ZARINA SIDDIQUI V/s. A.RAMALINGAM ALIAS     
R.AMARNATHAN , while reiterating that the remedy for specific
performance is an equitable one, the Supreme Court observed that the
equitable discretion to grant or not to grant a relief for specific performance
would depend upon the conduct of the parties and the necessary ingredients
have to be proved and established by the plaintiff so that discretion would be
exercised judiciously in his favour. The Supreme Court however cautioned that
if the defendant does not come with clean hands and suppresses material
facts and evidence or misleads the Court, then such discretion should not be
exercised by refusing to grant specific performance.  In that case, the
Supreme Court found that the second defendant held a registered power of
attorney for the first defendant to sell and dispose of the property, but the
defendants not only made a false statement on affidavit that the power of
attorney authorized the second defendant only to look after and manage the
property but also withheld the said power of attorney from the Court in order
to misguide the Court from the truth.
      KROVIDI KAMESWARAMMA V/s. KUDAPA BALARAMAYYA               
was a case where a Division Bench of this Court observed that the plaintiff
must come to Court with clean hands and more so, when he seeks the  
equitable relief of specific performance as it lies entirely within the discretion
of the Court. It was held that it is absolutely necessary that the plaintiff
should come to the Court with clean hands and if he sets up a false case, he
cannot expect the Court of equity to grant him relief.
      On the same lines, in TATAVARTHI JAGANNADHAM (DIED) PER       
L.R. V/s. AKKINENI RADHAKRISHNA , a Division Bench of this Court 
affirmed that it is well settled that a party, who seeks to avail the equitable
jurisdiction of a Court, and as specific performance is an equitable relief, must
come to the Court with clean hands. It was further observed that if a party
makes false allegations and does not come to Court with clean hands, he is
not entitled to such equitable relief.
      The plaintiff in the present case, with his ever-changing stands,
therefore fall foul of the aforestated standard and cannot, in any event, claim
the equitable relief of specific performance.
      The judgment and decree under appeal are therefore wholly
unsustainable on facts and in law and are accordingly set aside. The appeal is
allowed. A.S.M.P.No.2618 of 2017 filed by the plaintiff is dismissed. It is
noticed that A.S.M.P.No.1708 of 2017 was filed by the appellants/defendants
under Order 41 Rule 27 CPC seeking to place on record additional evidence
but no arguments whatsoever were advanced on this petition or in the
context of the documents sought to be placed on record thereunder. The said
ASMP is also dismissed. As the judgment and decree under appeal are set  
aside in their entirety, award of the suit costs to the respondent/plaintiff by
the trial Court is also set aside. As the suit costs have already been withdrawn
by him, pursuant to the interim order passed in this appeal, the
appellants/defendants would be entitled to restitution. The
respondent/plaintiff shall refund the same to the appellants/defendants within
four weeks from the date of receipt of this judgment and decree.
      Other pending miscellaneous petitions, if any, shall also stand closed.
      There shall be no order as to costs.
________________ 
SANJAY KUMAR, J   
_____________ 
J. UMA DEVI, J
24th NOVEMBER, 2017


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