THE HON’BLE SRI JUSTICE R. KANTHA RAO
SECOND APPEAL NO. 367 OF 2011
Smt. Nandagiri Godavari & Anr.
Counsel for the appellants: Mr. T. V. Kalyan singh
Counsel for the Respondent : Mr. Aditiya Krishna Chintapanti
J U D G M E N T :
This second appeal is directed against the judgment and decree
dated18-01-2011 passed in AS.No. 65 of 2009 by the VIII Additional District
Judge, Nizamabad, reversing the judgment and decree dated 27-07-2009 passed by
the Senior Civil Judge, Nizamabad, whereby and whereunder the suit filed by the
plaintiff was dismissed with costs, directing the defendants to refund the
advance amount of Rs.99,000/- received by them to the plaintiff with interest @
12% p.a. from the date of suit till the date of decree and 6% p.a. from the date
of decree till realization.
2. Heard the learned counsel appearing for the parties in the second
appeal. The second appeal itself is taken-up for disposal at the stage of
3. For the sake of convenience, the parties will be referred to as
“plaintiff” and “defendants”.
4. The brief facts relevant for considering the second appeal may be
stated as follows :
The first defendant is the wife of second defendant. The first defendant
is the owner of the plots bearing Nos. 75 and 45 and the second defendant is the
owner of plots bearing Nos. 32, 33, 34, 35 and 36. All these seven plots are
comprised in survey No. 60 of Nizamabad town. Each plot is measuring 200
sq.yards. The defendants offered to sell the suit plots to the plaintiff for
total consideration of Rs.3,99,000=00. The plaintiff accepted to purchase the
property on 20-01-2003. An agreement was entered into on the said date and the
plaintiff paid advance of Rs.99,000=00 in cash, which was received by the
defendants. It was agreed under the agreement that the balance of sale
consideration of Rs.3,00,000-00 has to be paid by the last week of March, 2003.
All these facts are not in dispute.
5. The contention of the plaintiff is that several times he approached the
defendants and informed that he had kept the amount ready, requested to receive
the same and pass a joint receipt and also to execute a regular registered sale
deed in respect of the suit schedule plots. According to the plaintiff, the
defendants were evading to receive the amount on one pretext or the other and
ultimately issued a legal notice on 23-05-2003 stating that they repudiated the
agreement for not paying the balance of sale consideration by the end of March,
2003. They also mentioned in the said legal notice that they forfeited the
amount of Rs.99,000=00 paid by the plaintiff as advance.
6. It is the version of the plaintiff that immediately he issued a reply
notice stating that though he was ready and willing to perform his part of
contract and was in fact kept the amount ready to be paid to the defendants, the
defendants evaded to receive the amount and issued a legal notice on false
grounds. He also got published notice in “Eenadu” Telugu daily on 27-05-2003
about the execution of agreement between the parties stating that the defendants
were trying to avoid the specific performance of the agreement because of steep
increase in prices of the land and was contemplating to sell the property to
7. On the other hand, it is the contention of the defendants that the
plaintiff failed to pay the amount by the end of March, 2003 as agreed in the
agreement and only after issuing legal notice by the defendants the plaintiff
sent a reply notice falsely contending that he had been ready and willing to
perform his part of contract.
8. The learned trial Court accepting the version of the defendants and
considering that the time is the essence of the contract, dismissed the suit
filed by the plaintiff but directed to refund the amount of Rs.99,000=00 paid as
advance by the plaintiff to the defendants.
9. Feeling aggrieved, the defendants filed AS.No. 65 of 2009, which was
disposed of by the VIII Additional District Judge, Nizamabad. The learned
Additional District Judge by his judgment and decree dated 18-01-2011 in AS.No.
65 of 2009 reversed the findings recorded by the learned trial Court. The
learned Additional District Judge held that though the plaintiff approached the
defendants for payment of balance of sale consideration and requested them to
execute the registered sale deed in respect of the suit schedule plots after
receiving the balance of sale consideration, it is the defendants who evaded to
receive the amount but issued Ex.A-3 legal notice dated 23-05-
2003. The learned First Appellate Court also held that the defendants without
affording any opportunity to the plaintiff to pay the balance of sale
consideration straight away on 23-05-2003 got issued Ex.A-3 legal notice
repudiating the agreement of sale dated 20-01-2003 forfeiting the advance of
Rs.99,000=00 paid by the plaintiff.
10. Here it is crucial to notice that the defendants did not issue any
notice stating that in the event of failure by the plaintiff they would
repudiate the contract and forfeit the earnest consideration. They straightaway
issued legal notice Ex.A-3 dated 23-05-2003 repudiating the agreement stating
that they forfeited the advance amount of Rs.99,000=00 paid by the plaintiff.
Further in Ex.A-4 reply notice, which was issued forthwith in reply to Ex.A-3
legal notice issued by the defendants, the plaintiff had specifically stated
that he was ready to pay the balance sale price. Subsequently in the suit filed
by him, he expressed his readiness to perform his part of contract and also
mentioned therein that if the Court directs he is ready to deposit the balance
of sale consideration.
11. Considering all these facts and also the conduct of the defendants
alienating the suit property to third parties flouting the orders passed in the
interlocutory application the first appellate court held that the plaintiff is
entitled for a decree of specific performance of contract, reversed the decree
and judgment passed by the learned trial Court and allowed the appeal.
12. The substantial question of law, which is raised in second appeal, is
that before filing the suit the plaintiff did not issue notice as contemplated
in Form Nos. 47 and 48 of the Code of Civil Procedure and Section 16 (c) of the
Specific Relief Act and therefore the suit is not maintainable. In support of
his contention, the learned counsel appearing for the appellants-defendants
relied upon the judgments in BADDAM PRATHAP REDDY V/s. CHENNADI JALAPATHI REDY
AND ANR 1, and MALANBEE (Died) Per LRs V/s. SYED AMJED HUSSAIN (Died) Per LRs 2
wherein the learned single Judge held that issuance of notice provided in Form
Nos. 47 and 48 of CPC and Section 16 (c) of the Specific Relief Act is
mandatory, failure on the part of the plaintiff to issue such notice and non-
compliance would result in dismissal of the suit. In this context, it would be
very much relevant to extract para 17 of the judgment referred supra-1, which
reads as follows:
17. This Court, however, hastens to add that, in law, oral demand by the
buyer of immovable property, as such, being sufficient compliance with
requirements s of Form Nos. 47 and 48 cannot be totally ruled out. In such
circumstances, the proof of oral demand should be strong and unimpeachable and
mere allegation, that too, in a passing manner would not be sufficient
compliance with the requirement of law. This aspect of the matter, however, has
to be gone into a little deeper in an appropriate case, but it would be
sufficient to leave the issue with the observations as made hereinabove.
13. However, in the instant case, as already point out, the defendants
did not afford any opportunity to the plaintiff to pay the balance of sale
consideration as found by the first appellate court but issued Ex.A-3 legal
notice dated 23-05-2003 stating therein straightaway that they repudiated the
contract and forfeited the earnest money. Further soonafter receiving the said
notice, the plaintiff issued Ex-A4 reply notice stating that he had always been
ready and willing to perform his part of contract prepared to pay the balance of
sale consideration and to obtain registered sale deed, but it is the defendants
due to escalation of price waited till 23-05-2003 and issued Ex.A-3 notice
straightaway repudiating the contract between the parties, which is illegal.
Ex.A-4 reply notice issued by the plaintiff confirms to all the requirements in
Form Nos. 47 and 48 and Section 16 (c) of the Specific Relief Act. Therefore,
it cannot be said that the suit is liable for dismissal on the ground of not
complying with the Form Nos. 47 and 48 and Section 16 (c) of the Specific Relief
Act. Further it is well settled that in suit for Specific Performance of
Contract relating to immovable property time is not the essence of the contract
and merely because the balance of sale consideration was not paid on or before
the date stipulated in the agreement it cannot be presumed that the plaintiff is
not ready and willing to perform his part of contract. Whether the plaintiff is
ready and willing to perform his part of contract is a question of fact, which
is rightly decided by the learned first appellate Court. The findings of the
first appellate court are based on evidence and on consideration of the
pleadings of both the parties and also the facts and circumstances of the case.
14. This Court will interfere with the findings of fact recorded by the
first appellate court only when the findings are perverse or not based on
evidence on record. This Court will entertain the second appeal in exercise of
powers under section 100 of CPC only when any substantial question of law is
involved for consideration. In the instant case, no substantial question of law
is involved for consideration.
15. For the foregoing reasons, the second appeal is dismissed at the
stage of admission, confirming the decree and judgment passed by the first
appellate court in AS.No.65 of 2009, dated 18-1-2011. There shall be no order
as to costs.
JUSTICE R.KANTHA RAO.