C D SRINIVASULU Vs. ABBASANI RAMAIAH

JUDGEMENT

(1.) The unsuccessful defendant in O.S.No. 3/88 on the file of I Additional Subordinate Judge at Saroornagar, Kothapet, Ranga Reddy District being aggrieved of the Judgment and Decree made therein granting the relief of specific performance had preferred the present Appeal.

(2.) Sri Ramchander Rao, the learned Counsel representing the appellant/defendant had taken this Court through the concerns of Ex. A-4 . Ex. B-6 and also the conditions stipulated in the agreement of sale and would contend that in the light of the facts and circumstances the contention that even prior to the expiry of the term stipulated in the agreement of sale the plaintiffs had been approaching the defendant cannot be believed inasmuch as at the earliest point of time in a notice the same was not specified and subsequent thereto even in the plaint the same was not pleaded but at the stage of evidence the same had been improved. In the light of the same it may have to be taken that the respondents/plaintiffs miserably failed in establishing their readiness and willingness to perform their part of the contract. The learned Counsel also would comment that except P.W. 1 no other evidence had been placed. The learned Counsel also would submit that the view expressed in Indira Kaur v. Sheo Lal Kapoor cannot be said to be the view holding the field in the light of the subsequent decisions of the Apex Court in N. P. Thirugnanam v. R. Jagan Mohan Rao and his Holiness Acharya Swami Canesh Dassji v. Sita Ram Thapar. The learned Counsel also would contend that to establish readiness and willigness to perform their part of the contract, some more evidence is essential and at least some evidence relating to the availability of consideration at the relevant point of time also should have been established. The learned Counsel placed strong reliance on Nalamathu Venkayya (died) Per L.R. v. B.S. Neelakanta and Anr. Kasinath Patel v. Radha Bai & Ors. and P. Purushotham Reddy and Anr. v. M/s. Pratap Steels Ltd. The learned Counsel also would submit that the mere fact that the defendant became sufficiently old and his son who has knowledge of the facts had been examined by itself an adverse inference cannot be drawn and the primary burden is on the respondents/plaintiffs to establish their readiness and willingness to perform their pert of the contract. The learned Counsel also would submit that it may be that normally time may not be the essence of the contract in relation to the enforcement of an agreement of sale in the context of immovable property. But however there may be a plea relating to the readiness and willingness to perform their part of the contract and also there should be acceptable evidence. In the absence of the same, the decree made by the learned Judge cannot be sustained.

(3.) Sri Srinivasa Murthy, the learned counsel representing the respondents/plaintiffs would contend that the respective pleadings of the parties are clear and categorical. The evidence of P.W. 1 is clear on the aspect of readiness and willingness to perform their part of the contract. The learned Counsel also would submit that the view expressed by the Apex Court in the decision referred (1) supra would be squarely applicable to the facts of this case. In the facts and circumstances it cannot be said that the plaintiffs had not established their readiness and willingness to perform their part of the contract especially in the light of the fact that the defendant had not chosen to enter the witness box. Apart from this aspect of the matter, though it is not stipulated in the agreement of sale relating to the obtaining of income tax clearance certificate the fact remains that Ex.B-7 was obtained long after the expiry of the time stipulated under the agreement of sale, that too in the name of D.W. 1, the son of the defendant. This would definitely go to show that the appellant/defendant for reasons best known thought of avoiding the contract having entered into the contract. The learned Counsel also would contend that in pursuance of the decree, deposit had been made and this aspect also may be taken into consideration. The learned Counsel pointed out to the relevant portion of the evidence of P.W. 1 and also strongly commented on the aspect of non-examination of the defendant. The learned Counsel placed reliance on Eswari Ammo and Anr. v. M.K. Korah and Ors.; Smt. Padmavathamma v. Smt. S. Sudha Rani & Ors.s; Podel/y Chinna Chinnanna v. Bandari Pedda Bhumanna and Ors. S.P. Narayaaswami Pillai v. Dhanakoti Amma; Ganesh Prasad v. Saraswati Devi & Ors.; Loonkaran Sethia v. Ivan . John and Ors.; Lakshmi Amma v. Ayyappan; Ramesh Chandra Chandiok & Anr. v. Chuni Lal Sabharwal (Dead) by his Legal Representatives and Ors.; Motilal Jain v. Smt. Ramdasi Devi & Ors.; Baratam Manmadha Rao v. Sri Raja Rao Rangamannar Krishna Ranga Rao and also the decision of the Apex Court referred (1) supra.