SINIGINIEEDI HYMAVATHI Vs. V NAGESWARA RAO

JUDGEMENT

(1.) Defendants 1 and 2 in O.S. No.129 of 1991 in the file of Subordinate Judge, Tadepallygudem preferred the present appeal as against the decree and judgment dated 31-12-1996. Respondents 1 and 2, the plaintiffs in the suit filed the suit for the relief of specific performance of the contract of agreement of sale directing the appellants herein-Defendants 1 and 2 to execute sale deed in favour of the first plaintiff for the western side Ac.1.05 cents of plaint schedule property and for eastern side Ac.1.05 cents of plaint schedule property in favour of the second plaintiff on receipt of the balance of sale consideration after discharging the mortgage debt due to the Muddunur Co-operative Society Limited and arrears of land revenue and also for the relief of permanent injunction and in the alternative for refund of the amount. The learned Judge on the strength of the respective pleadings of the parties, having settled the issues, recorded the evidence of P.Ws.1 to 4, D.Ws.1 and 2 and marked Ex.A1 to A27 and Ex.B1 and ultimately decreed the suit with costs directing Defendants 1 and 2 to execute separate sale deeds in favour of plaintiffs after receiving balance of sale consideration of Rs.48,250/- from each plaintiff with interest @ 18% per annum from 31-5-1990 to 24-9-1991 and thereafter from 25-9-1991 to 31-12-1996 @ 12% per annum within three months, failing which the plaintiffs are at liberty to get the sale deeds through process of Court and the relief of permanent injunction also was granted. Questioning the same, Defendants 1 and 2 preferred the present appeal.

(2.) Sri P. Srinivas Reddy, the learned Counsel representing the appellants-Defendants 1 and 2 had taken this Court through the respective pleadings of the parties and the evidence available on record and would contend that the learned Judge had not appreciated the facts and circumstances in the proper perspective and the plaintiffs had not discharged their obligations as stipulated in the terms of the contract. The learned Counsel also would submit that from the facts and circumstances, it is clear that the time is the essence of the contract and a plain reading of recitals of Ex.A1 also would amply establish the same. The learned Counsel also pointed out that even otherwise, from the facts it is clear that the plaintiffs had not been ready and willing to perform their part of the contract and the learned Judge had not made an attempt to record a clear finding in this regard. The learned Counsel also pointed out that Ex.A1 does not contain any recitals of the plaintiffs having been put into possession of the property and this crucial aspect had not been well appreciated by the learned Judge. The learned Counsel also explained the other oral and documentary evidence available on record. The learned Counsel also pointed out that Ex.A5 and A6 are the letters written to third parties and hence, much importance cannot be given to such documents while deciding the aspect whether time is the essence of contract or not. The learned Counsel also pointed out to the contents of Ex.A7 and would contend that these contents would go to show that time in fact, is essence of the contract. The learned Counsel also pointed out that the obligation to discharge debt to the Muddunuru Co-operative Society, one of the terms stipulated in Ex.A.1, also had not been complied with. The learned Counsel also commented on the way in which the plaintiffs got mutations in the revenue records. Ultimately the learned Counsel would conclude that in the light of the specific ground raised in ground No.11 of the grounds of appeal, it is clear that Ex.A1 is inadmissible or even otherwise, the same is liable for stamp duty and penalty and merely because an exhibit mark had been assigned by the learned Judge, when such objection was not judicially determined the same can be raised as a ground in this appeal and hence, the said objection may have to be considered by this Court. Submissions of Sri N.V. Suryanarayana

(3.) Sri N.V. Suryanarayana Murthy, the learned senior Counsel representing Respondents 1 and 2, the plaintiffs in the suit made the following submissions: The learned Counsel had taken this Court through the findings recorded by the learned Judge on the strength of the oral and documentary evidence available on record and would contend that in the fact and circumstances of the case, the learned Judge arrived at the correct conclusion that time cannot be treated as essence of contract. The learned Counsel also pointed out to Exs.A5 and A6, the letters and the findings recorded in relation thereto. The learned standing Counsel also further pointed out to the contents of Ex.A1 and also the clear evidence of P.W.1 available on record and the stand taken by D.W.1 and in the light of the respective stand taken by the parties, the learned Counsel would maintain that the findings recorded by the learned Judge are just and proper. The learned Counsel also would submit that the learned Judge exercised the discretion property while decreeing the suit for specific performance and also while granting the relief of permanent injunction. The learned Senior Counsel ultimately would conclude that the objection relating to the admissibility of Ex.Al, which had been raised for the first time before this Court on the ground that the same is liable for stamp duty and penalty also cannot be sustained in the light of the settled legal position and also in view of the express language employed in Section 36 of the Indian Stamp Act 1899.