CRP/3737/2012 of Mahal Babjan Vs Rangu Dhanalakshmi on 30 December 2013

ORDER:

The unsuccessful plaintiffs filed this Civil Revision Petition under Article227 of the Constitution of India assailing the orders dated 12.07.2012 of thelearned VII Additional District Judge, Madanapalle made in I.A.No.852 of2011 in O.S.No.45 of 2011 whereby, the learned Additional District Judgedirected the plaintiffs to deposit the balance of sale consideration in a sum ofRs.47,52,000/- into Court on or before 31.07.2013 and further observed thaton failure to do so, it must be recorded that the plaintiffs have no capacity topay the balance of sale consideration.

2. I have heard the submissions of the learned counsel for both the sides.The introductory facts necessary for consideration, in brief, are asfollows:-‘The plaintiffs filed the suit for specific performance in respect ofSircar Dry, S.No.1002/A2 Ac.2-47 cents paiki, Ac.1-24 cents situate atChinna Thippa Samudram (CTM) Revenue Village of Chittoor District. Thedefendants are resisting the said suit. On one hand, the plaintiffs contendedthat they were and are always ready and willing to perform their part of thecontract but the defendants had failed to perform their part. On the otherhand, the defendants inter alia contended that the plaintiffs were never readyand willing to perform their part of the contract and that the plaintiffs have nocapacity to pay the balance of sale consideration. During the pendency of thesaid suit, the defendants filed the instant interlocutory application underSection 16 (c) (i) of the Specific Relief Act requesting the trial Court to directthe plaintiffs to deposit the balance of sale consideration. One of thecontentions of the plaintiffs is that the extent of land is not Ac.1.24 cents asstated by the defendants and that the extent of land would be about Ac.1.00on land and that as per the terms and conditions of the agreement, the defendants are obliged to have the land measured and the boundaries fixedand that the defendants failed to perform their part of contract in that regard. In fact, the plaintiffs also filed I.A.No.863 of 2011 requesting the Court toappoint an Advocate Commissioner for locating the schedule property,measuring the same and fixing its boundaries. The defendants resisted thesaid application by filing a counter. The said application was dismissed bythe trial Court, vide orders dated 12.07.2012. A Civil Revision Petition filedagainst the said orders is also coming along with the present revisionpetition.’

3. Now the question for determination is as to whether the impugnedorders can be sustained under facts and law?

4. (a) The introductory facts necessary for consideration are alreadystated supra. Whether the plaintiffs are guilty of laches or whether thedefendants are guilty of laches; and whether which of the two partiescommitted breach, if any, of the terms of the agreement to sell; and whetherthe relief of specific performance can be granted or not; are all questionswhich fall for determination when the principal issues involved in the suitcome up for determination after full-fledged trial. This is not the stage to makeany observation which will have a bearing on the principal issues involved inthe suit.

4. (b) Section 16 of the Specific Relief Act, deals with personal bars torelief.

Section 16 (c) of the Act says that specific performance of a contractcannot be enforced in favour of a person who fails to aver and prove that hehas performed or has always been ready and willing to perform the essentialterms of the contract which are to be performed by him, other than terms theperformance of which has been prevented or waived by the defendants.

The Explanation.—for the purposes of clause (c), -(1) says that where a contract involves the payment of money, it is not essential for the plaintiff toactually tender to the defendant or to deposit in Court any money exceptwhen so directed by the Court.

4. (c) From the contentions of both the sides, it is noticeable that there isa dispute about the extent of property actually available on land. The extentmentioned in the agreement of sale is Ac.1.24 cents (= 0.502 hectares).According to the plaintiffs, the extent available on land would be aboutAc.1.00 and if the land is about Ac.0.24 cents less in extent, then, there willbe a difference in sale price of about Rs.7 lakhs. Therefore, the plaintiffs havetaken a stand that the land has to be localised and measured and theboundaries have to be fixed, in the interests of justice. The defendants wouldcontend that the land is described in detail in the schedule and theboundaries on all the four sides are specifically mentioned in the scheduleannexed to the plaint and that the plaintiffs consciously entered into theagreement agreeing for a lump sum sale price and that, therefore, there is noneed to consider the request of the plaintiffs and that the plaintiffs are dodgingthe matter as they have no capacity to pay the balance of sale consideration. Whether the plaintiffs would be liable to pay the entire sale considerationmentioned in the agreement to sell or whether the plaintiffs would be calledupon to pay the sale consideration proportionate to the extent of land actuallyavailable on land and what are the equities to be worked out while grantingor refusing the equitable relief of either specific performance or the alternaterelief of refund of earnest/advance money are again questions which fall fordetermination after full fledged trial. The vitally important aspect which thetrial Court had ignored is the relevant recital in the agreement to sell in regardto the requirement of measurements and fixation of boundaries by the time ofregistration of the sale deed. The said term in telugu in the agreement is tothe following effect: ‘By the time/date of registration, the executants of theagreement shall show the exact measurements and boundaries and then

receive the balance sale consideration and register the sale deed.’ Thus,even as per the agreed term under the suit agreement to sell, it is theobligation of the executants to have the property measured and theboundaries fixed. As per the above recital in the agreement, it appears primafacie that the same is a pre-requisite for receiving of the balance of saleconsideration and the registration of the sale deed. The parties are bound bythe terms of agreement is not in dispute. When the specific term in theagreement makes it requisite to measure the land and fix up the boundariesbefore payment of balance sale consideration and registration of the saledeed, the contention of the defendants contrary to the above said term in theagreement cannot be countenanced. Hence, without compliance of the saidterm of the agreement, it is not just and fair to compel the plaintiffs to depositinto Court the balance of sale consideration. Further, the trial of the suit hasnot yet commenced. If the plaintiffs are called upon to deposit into Court thebalance of sale consideration in a huge sum of Rs.47,52,000/, the amountwould be lying idle. Even if the Court invests the amount in a Fixed Depositin a Nationalised Bank, it would not fetch the market rate of interest. Further,the law is well settled that readiness and willingness need not be to theextent that the money should be deposited; suffice if the plaintiffs prove theircapacity to raise money and pay the balance of sale consideration as andwhen the occasion arises. This aspect of readiness and willingness is alsoto be decided after full fledged trial. In the light of the peculiar facts of thecase narrated supra, this Court is of the well-considered view that the facts ofthe case do not warrant issuance of a direction to the plaintiffs to deposit thebalance of sale consideration, at this stage. Viewed thus, this Court finds thatthe impugned order cannot be sustained under facts and in law and is liableto be set aside.

5. In the result, the Civil Revision Petition is allowed without costs and theimpugned order dated 12.07.2012 is hereby set aside. Miscellaneous petitions, if any, pending in this revision shall stand dismissed.

30[th] DECEMBER 2013RAR

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M.SEETHARAMA MURTI, J