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This Product is Licensed to M.NAGASHYAM KIRAN, ADVOCATE, ANANTAPURAMU

2017 0 Supreme(AP) 519
2018 1 ALD 158; 2018 5 ALT 497

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND
THE STATE OF ANDHRA PRADESH
SANJAY KUMAR, J. UMA DEVI, JJ.
Sri Challapalli Venkateswara Rao and others - Appellants
Vs.
Sri Meka Gangadhara Rao - Respondent
A.S. NO. 318 OF 2008 AND A.S.M.P. NO. 2618 OF 2017 IN A.S. NO. 318 OF 2008
Decided On : 24-11-2017
Cases referred:

ATTORNEY GENERAL Vs. WHEATE, (1759) 1 Eden 177 : 28 ER 652

C.MANOHAR REDDY Vs. ALOPI SHANKER, 2007 (2) ALD 496 (DB)
CHAND RANI Vs. KAMAL RANI, (1993) 1 SCC 519
C.PADMAWATI NAIDU Vs. FRIENDS CO-OPERATIVE HSG. SOCIETY LTD., NAGPUR 2016(4)
Mh.L.J. 289
I.S. SIKANDAR Vs. K. SUBRAMANI, (2013) 15 SCC 27
J.P. BUILDERS Vs. A. RAMADAS RAO, (2011) 1 SCC 429
K.S. VIDYANADAM Vs. VAIRAVAN, (1997) 3 SCC 1
K. PRAKASH Vs. B.R. SAMPATH KUMAR, (2015) 1 SCC 597
KROVIDI KAMESWARAMMA Vs. KUDAPA BALARAMAYYA, 1998 (5) ALT 69 (D.B.)
LOURDU MARI DAVID Vs. LOUIS CHINNAYA AROGIASWAMY, (1996) 5 SCC 589
MOHAMMED IBRAHIM Vs. MOHAMMED ABDUL RAZZAK, 2007 (3) ALD 617 (DB)
NALAMATHU VENKAIYA (DIED) BY L.R. Vs. B.S. NEELKANTA, 2005 (5) ALD 767 (DB)
P. DSOUZA Vs. SHONDRILO NAIDU, (2004) 6 SCC 649
PADMAKUMARI Vs. DASAYYAN, (2015) 8 SCC 695
SARADAMANI KANDAPPAN Vs. S. RAJALAKSHMI, (2011) 12 SCC 18
TATAVARTHI JAGANNADHAM (DIED) PER L.R. Vs. AKKINENI RADHAKRISHNA, 1997 (3) ALT 661
(D.B.)
ZARINA SIDDIQUI Vs. A.RAMALINGAM ALIAS R.AMARNATHAN, (2015) 1 SCC 705

CIVIL PROCEDURE CODE : O.41 R.27, O.6 R.17, S.96 CONTRACT ACT : S.51, S.52, S.53, S.54,
S.55, S.56, S.57, S.58 SPECIFIC RELIEF ACT : S.16(c), S.22, S.22(2)

Advocates Appeared :
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For the Appellants : Sri Srinivasa Rao Velivela, Sri Kambhampati Ramesh Babu
For the Respondent : Sri K. Chidambaram

JUDGMENT :
Sanjay Kumar, J.
1. 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.
2. 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.
3. Parties shall hereinafter be referred to as arrayed in the suit.
4. 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
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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.
5. 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
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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.
6. No rejoinder was filed by the plaintiff.
7. 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?
8. 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.
9. 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.
10. 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
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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.
11. 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.
12. 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
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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.
13. 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 2007 (3)
ald 617 (DB), 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.
14. 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
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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.
15. 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.
16. Upon consideration of the record and the arguments advanced by the learned counsel, the
following points arise for determination in this appeal:
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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.
17. 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
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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.
18. 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.
19. 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 (1993) 1 SCC 519. 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.
20. Again, in K.S. VIDYANADAM V/s. VAIRAVAN (1997) 3 SCC 1, 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-
 2020-10-17 Page 10

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.
21. In NALAMATHU VENKAIYA (DIED) BY L.R. V/s. B.S. NEELKANTA 2005 (5) ald 767 (DB), 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.
22. In SARADAMANI KANDAPPAN V/s. S.RAJALAKSHMI (2011) 12 SCC 18, referring to CHAND
RANI (1993) 1 SCC 519, 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.
23. 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
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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.
24. 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
 2020-10-17 Page 12

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.
25. 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.
26. In J.P. BUILDERS V/s. A. RAMADAS RAO (2011) 1 SCC 429, the Supreme Court relied on its
earlier decision in P. DSOUZA V/s. SHONDRILO NAIDU (2004) 6 SCC 649 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.
27. In K.PRAKASH V/s. B.R.SAMPATH KUMAR (2015) 1 SCC 597, 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 (1759) 1 Eden 177 : 28 ER 652, 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.
28. In C.MANOHAR REDDY V/s. ALOPI SHANKER 2007 (2) ald 496 (DB), 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
 2020-10-17 Page 13

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.
29. 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.
30. 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.’
31. 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.’
32. 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.
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33. 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.
34. In SARADAMANI KANDAPPAN (2011) 12 SCC 18, 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.
35. In PADMAKUMARI V/s. DASAYYAN (2015) 8 SCC 695, 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.
36. 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
 2020-10-17 Page 15

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.
37. In I.S. SIKANDAR V/s. K. SUBRAMANI (2013) 15 SCC 27, 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 RANI (1993) 1 SCC 519 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.
38. The principle laid down by the Supreme Court in I.S. SIKANDAR (2013) 15 SCC 27 was
followed and applied in C.PADMAWATI NAIDU V/s. FRIENDS CO-OPERATIVE HSG. SOCIETY LTD.,
NAGPUR 2016(4) Mh.L.J. 289.
39. 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
 2020-10-17 Page 16

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 bona-fides and is liable to be dismissed.
40. 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.
41. 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 bona-fide.
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.’
 2020-10-17 Page 17

42. 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.
43. Pertinent to note, in SARADAMANI KANDAPPAN (2011) 12 SCC 18, 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.
44. 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.
45. 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 bona-fides. 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
 2020-10-17 Page 18

registered sale deed and that it was the defendants who did not turn up. This was never his claim earlier.
46. Significantly, in LOURDU MARI DAVID V/s. LOUIS CHINNAYA AROGIASWAMY (1996) 5 SCC
589, 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 (2015) 1 SCC 705, 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.
47. KROVIDI KAMESWARAMMA V/s. KUDAPA BALARAMAYYA 1998 (5) ALT 69 (D.B.) 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.
48. On the same lines, in TATAVARTHI JAGANNADHAM (DIED) PER L.R. V/s. AKKINENI
RADHAKRISHNA 1997 (3) ALT 661 (D.B.), 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.
49. 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.
50. 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.
51. Other pending miscellaneous petitions, if any, shall also stand closed.
52. There shall be no order as to costs.
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