- (1.)THIS appeal under clause 15 of the Letters Patent is filed against the judgment of the learned single Judge of this Court dated 24-09-1998 passed in A. S. No. 145 of 1998 reversing the decree granted for specific performance of contract agreement by the Principal Subordinate Judge, Saroornagar, R. R. District in O. S. No. 139 of 1984 dated 29-04-1988. For the sake of convenience the parties are referred to as arrayed in the court below. The undisputed facts in nutshell are as under: the respondent/defendant herein purchased plot No. 7 in block-A admeasuring 1730 square yards under a registered sale deed dated 04-06-1967 from the Cooperative Housing Society (Shantinagar) Limited, later the name of the society was changed as Kakatiyanagar Cooperative Housing Society. Out of the said plot purchased by her, an extent of 723 square yards situated on the western side along with the house marked as plot No. 7-A was sold away to Dr. Indra Mohan. The appellant/plaintiff herein offered to purchase the remaining extent of 1007 square yards for a sum of Rs. 45,315/- and paid an amount of rs. 15,000/- towards advance and later entered into an agreement of sale dated 29-07-1978 marked as Ex. A1 agreeing to purchase the same and will obtain sale deed from the respondent/defendant. It is also further agreed that the sale deed shall be executed within one month from the date of receipt of information from the defendant stating that the necessary permission from the concerned authority under the Urban Land Ceiling Act is obtained or within such further period as mutually agreed upon on payment of balance of sale consideration. The defendant shall obtain permission for alimentation under Urban Land Ceiling Act or any other Act as early as but not later 75 days from the date of such agreement and if he fails to get the said permission within the stipulated period, the purchaser shall be entitled to get back the advance paid after 75 days from the date of agreement, but not later than 90 days under any circumstances. The defendant applied for permission under ULC Act and her husband, who is acting on her behalf, wrote a letter dated 13-10-1978-Ex. A2 to the plaintiff stating that they are ready to execute the sale deed and for the said purpose they are coming to Hyderabad and the plaintiff shall make all arrangements and keep himself ready for taking the sale deed. The plaintiff through reply dated 20-10-1978-Ex. A17 expressed his willingness to take the sale deed and reminded the defendant to obtain certificate from the ULC authorities. The plaintiff purchased stamp papers on 23-10-1978 for a value of Rs. 4,000/- and got prepared the draft sale deed. Since the permission was not obtained, registration could not take place. The said fact was also intimated by the plaintiff through his letter dated 30-12-1978. Later the plaintiff wrote a letter to the defendant to send copies of petition filed by her seeking permission from the ULC authorities in triplicate. Meanwhile, the husband of the defendant by a letter dated 12-04-1982-Ex. A3 informed the plaintiff that the agreement stands cancelled and an amount of Rs. 15,000/- returned through demand draft. The plaintiff sent a reply dated 02-05-1982-Ex. B1, for which the defendant expressed her anger under ex. A11 dated 02-06-1982 stating that she is forfeiting the advance amount of rs. 15,000/- on the ground that the contract has become dead, which was replied by the plaintiff. When the matter stood thus, the Government in G. O. Ms. No. 161 dated 07-02-1984 granted exemption from the provisions of ULC Act. On such exemption being granted the plaintiff called upon the defendant to execute the sale deed. When the defendant refused to do so, the plaintiff issued a notice dated 19-02-1984-Ex. A5 for which defendant sent a reply under Ex. B4. Therefore, the above suit was filed on 04-04-1984 seeking specific performance of agreement of sale contending that the defendant by her conduct and specific representations extended the period of time for obtaining permission and for executing the sale deed.
(2.)IN the written statement filed by the defendant she pleaded that as per the agreement if the balance sale consideration is not paid within the stipulated period or agreed period, rendering it difficult for the vendor to execute the sale deed, the agreement of sale shall stand cancelled. The parties intended to complete the sale deed within three months from the date of execution of the agreement unless the period is extended or mutually agreed upon on payment of balance of sale consideration. If the balance of sale consideration is not paid within the stipulated period the said agreement stands cancelled. When it is specifically agreed that the defendant shall obtain permission for alienation under Urban Land Ceiling Act or any other Act as early as possible but not later than 75 days from the date of the agreement. If she failed to get the permission, the purchaser is entitled to get back the amount paid towards advance within 75 days but not later than 90 days. The plaintiff is only entitled to get back the amount but cannot enforce the agreement. The claim of the plaintiff is barred by limitation, as he has not sought for any extension as per the terms of the agreement. Though the defendant is not under obligation to return the amount, she refunded by way of demand draft, but the plaintiff refused to receive the same, which was kept in a separate account in Canara bank, Vijayawada. The Government in G. O. Ms. No. 161 dated 07-02-1984 granted exemption only for the excess land measuring 137 square meters, which is nothing to do with the permission to alienate the land of the plaintiff. Mere purchase of stamp papers will not entitle the plaintiff to claim specific performance. On the above pleadings the following issues were settled for trial. 1. Whether the plaintiff is entitled to specific performance of the agreement of sale? 2. To what relief is the plaintiff entitled? to substantiate the respective pleas the plaintiff himself was examined as P. W. 1 and the adjacent purchaser was examined as P. W. 2 and Exs. A1 to A18 were got marked. The husband of the defendant was examined as D. W. 1 and Exs. B1 to B8 were marked.
(3.)THE learned Subordinate Judge decreed the suit holding that the plaintiff was ready and willing to pay the balance of sale consideration and perform his part of contract. On appeal being filed by the defendant the learned single Judge framed three points for consideration and held that obtaining permission from the competent authority is pre-condition for execution of sale deed. Admittedly no such permission was granted within three months or thereafter. Nothing did happen till 12-04-1982 and there is no serious compliant against each other with regard to the readiness of either party for payment of the balance amount or execution of the sale deed. The evidence adduced by the parties reveal that the defendant was ready to execute the sale deed and the plaintiff was ready to obtain the same by paying balance of sale consideration. When the defendant waited for permission till 1982, a good 4 years after the agreement, then he wrote a letter dated 12-04-1982-Ex. A3 canceling the agreement and refunding the advance amount for which the plaintiff replied under Ex. B1 dated 02-05-1982 stating that he waited more than three years it was not proper asking him to receive the advance and seeking to cancel the contract. The agreement clause is provided that the purchaser has to pay the money within one month from the date of receipt of information regarding obtaining of the permission and the sale shall be executed within three months from the date of agreement or within one month from the date of receipt of intimation. A combined reading of clauses 3 and 5 makes it manifest that the parties intended that the permission should be obtained by the vendor within 75 days and they were not prepared to wait for more than 75 days. For return of the amount 90 days was fixed; thereafter the purchaser is not entitled for the advance so paid, which makes it clear that the time is the essence of the contract. Since the trial judge has not considered the conduct of the defendant in waiting upto 1982 and repudiating the contract and that 75 days fixed in the contract was not strictly adhered to. In view of cancellation of agreement under Ex. A3 the plaintiff is not entitled to specific performance of the contract. Holding so allowed the appeal and dismissed the suit.