A PARTY AT FAULT CAN NOT SAY THAT OTHER SIDE IS NOT READY AND WILLING TO PERFORM CONTRACT = When the defendant has not discharged her obligation under Ex.A-1 to get the land surveyed, she cannot complain that plaintiff did not pay the balance sale consideration to her as per the terms of the agreement of sale. Ex.A-4 shows that plaintiff has means to pay the balance sale consideration, but without the survey being done, as a prudent purchaser, he need not pay the balance sale consideration. He is waiting for defendant to get the land surveyed so that he can pay the balance sale consideration. Therefore, it cannot be said that the plaintiff is not ready and willing to pay the balance sale consideration particularly when he issued a legal notice Ex.A-2 to defendant in March, 2005, which was received by defendant but not replied by her. ; TIME IS NOT THE ESSENCE OF CONTRACT = It is settled law that normally time is not an essence of contract for sale of immovable property and that it is open to the parties to make time is essence of contact of sale either by making an express stipulation in the agreement of sale to that effect or by subsequently issuing a notice to the other party making time of essence. There is no dispute that Ex.A-1 does not contain any recital that time is of essence of agreement of sale and the defendant has also not issued any notice subsequent to Ex.A-1 making time of essence of the contract. Although the defendant pleaded that she had agreed to sell the property so that she may perform her daughter’s marriage, there is no whisper in her evidence as to when the said marriage was performed by her and whether this fact was informed to plaintiff at the time of agreement of sale was entered into. It is not the case of the defendant that there was a recital in Ex.A-1 that the property was being sold to perform the marriage of daughter of defendant. Therefore, the defendant cannot contend that time is of essence of agreement of sale, and that plaintiff has not discharged his obligation to pay the balance sale consideration.

PUBLISHED IN http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=SA&mno=657&year=2013

SA 657 / 2013

SASR 23770 / 2013

PETITIONER RESPONDENT SMT.JINKA ARUNA   VS N.BALRAJ PET.ADV. : MEHERCHAND NORI RESP.ADV. :  SUBJECT: SPECIFIC PERFORMANCE OF CONTRACT(IMMOVABLE PROPERTY) DISTRICT:  MEDAK

HON’BLE SRI JUSTICE M.S.RAMACHANDRA RAO

SECOND APPEAL No.657 of 2013

JUDGMENT:

          This second appeal is filed challenging the judgment and decree
dt.01-04-2013 in A.S.No.17 of 2011 of the Special Judge for trial of offences under SC/ST (POA) Act, 1989-cum-V Additional District & Sessions Judge, Medak at Sangareddy (for short “the lower appellate Court),  confirming the judgment and decree dt.15-11-2010 in O.S.No.150 of 2006 of Senior Civil Judge, Sangareddy.

2.                 The appellant in the second appeal is defendant in the above suit.  The plaintiff/respondent filed the suit against the appellant for specific performance of Ex.A-1 agreement of sale dt.04-11-2004 in respect of an extent of Ac.1-36 guntas situated at Arutla village, Sangareddy Mandal in three different survey numbers.

3.                 The plaintiff contended that the defendant is the owner of the suit schedule property and she had offered to sell the same to plaintiff for Rs.1,23,500/-; that an agreement of sale Ex.A-1 dt.24-11-2004 was executed by defendant in his favour and he paid Rs.35,000/- to defendant; that it was mutually agreed between the parties that the defendant shall get the land surveyed before March, 2005 and the plaintiff shall then pay the remaining balance sale consideration and obtain registered sale deed from the defendant. The plaintiff contended that he approached the defendant several times with a request to get the suit land surveyed as per terms of agreement of sale stating that he is willing to pay the balance sale consideration, but the defendant intentionally avoided to get the land surveyed and receive the balance sale consideration. He therefore issued Ex.A-2 legal notice dt.09-03-2006 to the defendant, but the defendant, having received it, did not send any reply and therefore, he filed the suit for specific performance of Ex.A-1 agreement of sale.

4.                  The defendant filed a written statement admitting the execution of Ex.A-1, receipt of part sale consideration of Rs.35,000/- and other terms of Ex.A-1,  but contended that she got the land surveyed in the month of March, 2005      and approached the plaintiff for payment of balance sale consideration but the plaintiff avoided payment of the balance sale consideration.  She also contended that she offered to sell the suit land only to perform the marriage of her daughter and as the plaintiff failed to pay balance sale consideration as per Ex.A-1, she had to borrow Rs.50,000/- as  a loan.  She further pleaded that plaintiff is not entitled to relief of specific performance of Ex.A-1 since he failed to perform his part of obligation by paying balance sale consideration  for execution of registered sale deed.

5.                  Before the trial Court, the plaintiff examined three witnesses and marked Exs.A-1 to A-4.  The defendant examined D.Ws.1 to 3 and did not mark any document.

6.                 By judgment and decree dt.15-11-2010, the trial Court decreed the suit with costs.  It held, on appreciation of evidence, that in any transaction relating to sale of immovable property normally, the time is not essence of contract; that defendant did not put the plaintiff on notice making time of essence of the contract; that the defendant did not reply to Ex.A-2 legal notice  and also did not prove that there was a private survey got conducted by her of the land although it was her responsibility to get the land surveyed; that nothing prevented her  from getting the suit land surveyed as undertaken by her under Ex.A-1; therefore, the plaintiff is justified in insisting for survey of the land before paying of balance sale consideration and he was entitled to withhold the balance sale consideration till the land is surveyed.  It held that there is ample oral and documentary evidence including Ex.A-4 statement of account to show that plaintiff was having sufficient money to perform his part of obligation and pay balance sale consideration as soon as the defendant performs her part of the contract by getting the suit land surveyed. 

7.                 Aggrieved thereby, the defendant filed A.S.No.17 of 2011 before the lower appellate Court.

8.                 By judgment and decree dt.01-04-2013, the said appeal was also dismissed confirming the findings of the trial Court. The lower appellate Court also held that the defendant failed to prove that the suit land was got surveyed by a private Surveyor and the evidence of D.Ws.2 and 3 cannot be taken into account to prove that there was a survey got conducted by the defendant without survey report being placed on record.  It also held that the plaintiff was ever ready to pay the balance sale consideration and had even issued Ex.A-2 legal notice to the defendant but the defendant did not issue any reply.

9.                 Challenging the same, the present second appeal is filed by the defendant.

10.            Heard Sri Meherchand Nori, learned counsel for the appellant at the stage of admission.

11.            The learned counsel for the appellant contended that the judgments of the Courts below are contrary to law; that they ought to have held that the time is of essence of agreement of sale; that they should have held that plaintiff was not ready and willing to perform his obligation under Ex.A-1 agreement of sale; alternatively, the defendant is an innocent lady and did not know much about the transaction, and therefore, it would be inequitable to grant the relief of specific performance of suit agreement of sale.

12.            Ex.A-1 agreement was admitted by defendant to have been executed in favour of plaintiff for sale of plaint schedule property for Rs.1,23,500/-.  She also admitted receipt of advance of Rs.35,000/- from plaintiff.  It is not disputed by defendant that under the agreement of sale, she had undertaken the obligation to get the land surveyed and inform the same to plaintiff.  Both the Courts below have concurrently found that no steps were taken by defendant to get the land surveyed.  The learned counsel for appellant has not been able to show that the said finding is perverse or is based on no evidence.

13.            When the defendant has not discharged her obligation under Ex.A-1 to get the land surveyed, she cannot complain that plaintiff did not pay the balance sale consideration to her as per the terms of the agreement of sale. 

 Ex.A-4 shows that plaintiff has means to pay the balance sale consideration, but without the survey being done, as a prudent purchaser, he need not pay the balance sale consideration. 

He is waiting for defendant to get the land surveyed so that he can pay the balance sale consideration.  

Therefore, it cannot be said that the plaintiff is not ready and willing to pay the balance sale consideration particularly when he issued a legal notice Ex.A-2 to defendant in March, 2005, which was received by defendant but not replied by her. 

 It is settled law that normally time is not an essence of contract for sale of immovable property and that it is open to the parties to make time is essence of contact of sale either by making an express stipulation in the agreement of sale to that effect or by subsequently issuing a notice to the other party making time of essence.  

There is no dispute that Ex.A-1 does not contain any recital that time is of essence of agreement of sale and the defendant has also not issued any notice subsequent to Ex.A-1 making time of essence of the contract.  

Although the defendant pleaded that she had agreed to sell the property so that she may perform her daughter’s marriage, there is no whisper in her evidence as to when the said marriage was performed by her and whether this fact was informed to plaintiff at the time of agreement of sale was entered into.  

It is not the case of the defendant that there was a recital in Ex.A-1 that the property was being sold to perform the marriage of daughter of defendant. 

 Therefore, the defendant cannot contend that time is of essence of agreement of sale, and that plaintiff has not discharged his obligation to pay the balance sale consideration. 

As regards the alternative plea that defendant is innocent and did not know much about the transaction, such a plea was not raised in Courts below. Therefore, it cannot be entertained in this Second Appeal. There is no question of law much less a substantial question of law for consideration in this appeal.

14.            For the above reasons, I hold that there is no merit in the Second Appeal and the same is accordingly dismissed. No costs.

15.            Miscellaneous applications, if any, pending in this Second Appeal shall stand closed.

 

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JUSTICE M.S. RAMACHANDRA RAO

 

 

 

Date: 19-07-2013

Vsv