ANNAPURNAMMA Vs. U. KRISHNAMURTHY ADIGA

JUDGEMENT

(1.) THIS second appeal is by the plaintiffs to set aside the judgment and decree dated 3.3.2010 passed in R.A. No. 235/2004 by the Additional Sessions Judge (FTC) at Chitradurga and for such other relief.

(2.) ON the matter being contested and having raised relevant issues, the trial Court held that the plaintiffs have proved that Janakiram has borrowed a sum of Rs. 40,000/ - from the defendant and executed a registered sale deed by mortgaging the suit schedule property and also that Janakiram was ready and willing to perform his part of the contract. With regard to nonpayment of Rs. 40,000/ - taken by the defendant it is held in favour of the plaintiffs. The stand of the defendants before the trial Court is that the sale agreement was unjust and inequitable, however the same has been answered in favour of the plaintiffs holding that they are entitled for specific performance. Ultimately, the trial Court decreed the suit. As against which, the defendants preferred an appeal before the Additional Sessions Judge, Fast Track Court, Chitradurga. The lower Appellate Court, after hearing the parties and on perusal of the documents, reversed the finding of the trial Court. Being aggrieved by the same, the appellants/plaintiffs are before this Court.

(3.) SO far as ready and willingness to perform contract, nature of transaction and validity of Exs.P2 to P4 are concerned, it appears, towards the security of loan, initially Janakiram has mortgaged the suit schedule property in favour of the defendant and later the same has been reconveyed by the defendant to the plaintiff on payment of the principal amount of Rs. 40,000/ - together with interest at the rate of 2% p.m. It appears that insofar as readiness and willingness to perform his part of the contract is concerned the plaintiff has deposited a sum of Rs. 50,000/ - in favour of the defendants and hence, they are seeking for reconveyance of the suit schedule property. Apart from that, they are also entitled for rental which amounts to Rs. 50,000/ - by the defendants. According to the appellants herein, they have deposited the borrowed amount in favour of the defendants and that they are ready and willing to perform their part of the contract. At the same time, the learned counsel for the appellants relied upon the judgment of this Court in RSA No. 327/2005 disposed of on 16.9.2006 where it is held that Section 16(c) of the Specific Relief Act, 1963 does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of "readiness and willingness" has to be in spirit and substance and not in letter and form. The learned counsel appearing for the appellants has submitted that the amount of Rs. 50,000/ - paid to the defendants shows their capacity and readiness and willingness to perform their part of the contract. Insofar as the aspect of time is essence of the contract is concerned, the learned counsel for the appellants relied upon the decision of the Apex Court in the case of P. Purushottam Reddy and Another v. M/s. Pratap Steels Limited reported in, 2002 (2) KCCR where it is held that it is a well -settled principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. Under the law of equity which governs the rights of the parties in the case of specific performance of the contract to sell real estate, law looks not at the letter but at the substance of the agreement.