SA/1076/2011 of Smt. Karri Subbayamma [died] Vs Mohammed Khader Khan Durrani , Nayeem on 30 December 2011

JUDGMENT:

The defendants are the appellants. The suit filed by the firstrespondent (hereafter, the plaintiff) being O.S.No.155 of 1998 onthe file of the Court of I Additional Senior Civil Judge, Kakinada,for specific performance of agreement of sale was dismissed on07.09.2004. He then filed appeal being A.S.No.82 of 2006 on thefile of the VII Additional District and Sessions Judge, Kakinada. By the impugned judgment dated 30.05.2011, learned AdditionalDistrict Judge allowed the appeal. Hence, the Second Appeal.

The plaintiff pleaded as follows. The first defendant (KarriSubbayamma) and the second respondent herein (the seconddefendant) executed agreement of sale dated 24.02.1992 agreeingto sell plaint ‘A’ schedule property admeasuring 507.63 squareyards in plot No.8 in Vakalapudi Panchayathi lay out No.70/85 andplaint ‘B’ schedule property admeasuring 520.23 square yards inplot No.8 in the same lay out for a sale consideration ofRs.1,43,920/-; the plaintiff paid advance amount of Rs.90,000/- byway of cheque agreeing to pay balance of Rs.53,920/- on or beforethe registration; the second defendant was represented by hisgrand father namely Karri Veera Reddy; and on 02.03.1992, afteraccepting Rs.5,000/-, vendors extended the time for execution ofsale deed up to 30.06.1992. The possession was also delivered tothe plaintiff. Though he paid the entire amount includingregistration charges on 06.11.1995 and the second defendant, whobecame major and executed three different sale deeds in favour ofthree nominees of the plaintiff, the first defendant did not executethe sale deed necessitating filing of the suit.

Defendants 1 and 2 took the plea that the suit agreement stood cancelled as the plaintiff failed to pay the balance amounteven though time was extended up to 30.06.1992 and that thedefendant conveyed plaint ‘B’ schedule property to the nomineesof the plaintiff but in respect of plaint ‘A’ schedule property, thebalance sale consideration was not paid.

In view of the contentious points, the trial Court framed sixissues. The plaintiff deposed as P.W.1 and marked Exs.A1 to A6. The defendants examined two witnesses, D.W.2 being the seconddefendant and no documents were marked. After considering theissues, the trial Court dismissed the suit observing that time beingthe essence of the contract, the agreement stood cancelled byefflux of time and the suit is being barred by limitation. While theappeal was pending the first defendant, Karri Subbayamma diedand her legal representatives were brought on record. Theappellate Court on reconsidering the oral and documentaryevidence recorded a finding that the second defendant havingexecuted the sale deeds in favour of the nominees of the plaintiff,the question of limitation does not arise and that specificperformance cannot be denied on the plea that the time is essenceof contract.

In this appeal, the counsel for the appellants (legalrepresentatives of the first defendant) would submit that thefindings recorded by the first appellate Court are perverse; the suitis barred by limitation as the endorsement extending the time forperforming the vendees’ contract was not accepted or endorsed bythe second defendant and therefore it is not binding on him. Nextly, he would submit that the endorsement made by the firstdefendant would not bind the second defendant and therefore onthe plea of limitation, the first appellate Court ought to have held infavour of the defendants.

“It is a well accepted principle that in the case of sale ofimmovable property, time is never regarded as the essence of thecontract. In fact, there is a presumption against time being theessence of the contract”(See Chand Rani v. Kamal Rani[[1]]). Whensuch a plea is taken by the opposing defendants, they have toshow by cogent and convincing evidence. Though Ex.A2-agreement executed by Karri Subbayamma and Karri Veera Reddyon behalf of the second defendant prescribed the time forexecution of the sale deed and for performing the mutualobligations, by extending time under the endorsement-Ex.A5, theparties are deemed to have waived the clause of time beingessence of the contract. The plea that endorsement was notbinding on the second defendant cannot be accepted. Indeedthere is no dispute that the second defendant became major andexecuted sale deeds in favour of the nominees of the plaintiff inrespect of plaint ‘B’ schedule properties. From the totality ofcircumstances, it can be probabilised that it was KarriSubbayamma, the grand mother of the second defendant, who isdealing with the property and the defendant took inconsistent pleasso as to deny the relief to the plaintiff. The first appellate Court, inthe considered opinion of this Court, appreciated the questions offact in proper perspective and recorded findings. This Court doesnot find any substantial question of law.

The Second Appeal is, therefore, dismissed. There shall beno order as to costs.

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(V.V.S.RAO, J)

30[th ]December 2011RRB

[1]AIR 1993 SC 1742