Rufkha Masood vs Mohammed Sameer and Others

C.R. Kumaraswamy, J.—This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure against the judgment and decree dated 22.06.2013 passed in O.S. No. 16792/2006 on the file of the XXVIII Additional City Civil Judge, Mayo Hall, Bengaluru, decreeing the suit for specific performance.

The Parties will be referred to with reference to the status in the Trial Court.

The case of the plaintiffs in the Trial Court is as under:

"Plaintiffs state that they have entered into an agreement of sale with the defendant in order to purchase the suit schedule property on a sale consideration of Rs. 5,00,000/- (Rupees Five Lakh Only). The defendant had executed agreement of sale in favour of plaintiff Nos. 1 and 2 on 14.07.2004. The plaintiffs have paid an advance amount of Rs. 2,00,000/- (Rupees Two Lakh Only) under the agreement of sale and before that, Rs. 10,000/-(Rupees Ten Thousand Only) was paid as token advance on 01.07.2004. Subsequently, on 01.12.2004, Rs. 1,00,000/- (Rupees One Lakhs Only) was paid to the defendant by way of cheque bearing No. 003423 drawn on State Bank of Travancore, and further, a sum of Rs. 1,00,000/- (Rupees One Lakh Only) was paid to the defendant by way of Cheque bearing No. 003427 dated 28.01.2004. A sum of Rs. 50,000/- (Rupees Fifty Thousand Only) was paid to the defendant by way of Cheque No. 003433 dated 12.04.2006 drawn on State Bank of Travancore and in all, the defendant received a sum of Rs. 5,00,000/- (Rupees Five Lakh Only) towards entire sale consideration from the plaintiffs and plaintiff No. 3 being the uncle of minor children plaintiff Nos. 1 and 2 represented them from the date of agreement of sale. He also made payments through cheques and the defendant has received and admitted the payments under the agreement of sale dated 14.07.2004.

The plaintiffs state that the defendant entered into agreement of sale on 14.07.2004 in respect of suit schedule property in favour of the plaintiffs and agreed to sell the same on a sale consideration of Rs. 5,00,000/- (Rupees Five Lakhs Only) and received the entire sale consideration on the aforesaid occasions by cash and through cheques. After entering into the agreement of sale, the defendant has not handed over the documents in respect of the suit schedule property to the mother of the plaintiffs, either xerox or original. The defendant handed over vacant possession of the suit schedule property in which only a small room measuring 10 x 10 feet was constructed by the defendant. The plaintiffs entered into agreement of sale in respect of entire suit schedule property measuring 30 x 40 feet. The defendant took time to get the documents and promised to execute the sale deed in favour of the plaintiffs. Construction was put up by the plaintiffs by investing the money.

The plaintiffs state that plaintiff Nos. 1 and 2 being the minor children prior to entering into agreement of sale with the defendant, minor''s property was sold with the permission of the Court vide G & W C No. 15008/2004, the sale proceeds were invested to purchase the suit schedule property. On this condition, the Court granted permission.

The plaintiffs state that though the plaintiffs were having the sale proceeds of minor''s property which was sold earlier and they were ready and willing and they were having sufficient funds with them and they requested the defendant on several occasions to execute the sale deed in favour of plaintiff Nos. 1 and 2 but the defendant evaded to execute the sale deed on one or the other pretext.

The plaintiffs state that there was interference by defendant''s husband stating that he is entitled to receive part of sale consideration along with the defendant and there was misunderstanding between the defendant and Masood Mohammed Sait. On account of it, the defendant made attempts to alienate the suit schedule property to the third party on a higher price. Therefore, the plaintiffs instituted a suit for bare injunction in OS No. 16576/2004 and in that suit, the defendant appeared and gave an undertaking to execute the sale deed in favour of the plaintiffs and thereafter, defendant received further payment through cheques and thereby received the entire sale consideration from the plaintiffs even though the defendant did not turn up to execute the sale deed in favour of the plaintiffs in spite of several personal approach by the mother of plaintiff Nos. 1 and 2, the third plaintiff

The plaintiffs state that in spite of the defendant''s undertaking in OS No. 16576/2004, the defendant once again made attempts to alienate the suit schedule property to the third party. Therefore, the plaintiffs have filed a suit for permanent injunction in OS No. 15329/2005 and obtained interim order of temporary injunction. Thereafter, the defendant received further payments on 12.04.2006 and received entire sale consideration from the plaintiffs in a sum of Rs. 5,00,000/- and failed to execute the sale deed in favour of the plaintiffs.

The plaintiffs state that they have got issued a legal notice against the defendant on 04.08.2006 calling upon her to execute the sale deed in favour of the plaintiffs in respect of the suit schedule property. The defendant did not claim the legal notice and the same was returned. The defendant received the legal notice sent through certificate of posting and she did not choose to give any reply.

The plaintiffs state that even though the plaintiffs were ready to perform their part of contract and paid the entire sale consideration to the defendant and in spite of the undertaking given by the defendant in OS No. 16576/2004, the defendant has not chosen to execute the sale deed in favour of the plaintiffs and hence the suit for the relief of specific performance is filed.

The cause of action for the suit arose on 14.07.2004 and 12.04.2005, the date on which the last payment was made and on 04.08.2006, when the defendant was called upon to execute the sale deed by issuing legal notice by the plaintiffs and subsequently thereon.

Therefore, the plaintiffs prayed for a judgment and decree against the defendant for specific performance and to direct the defendant to execute the sale deed in favour of plaintiffs No. 1 and 2 in respect of the suit schedule property. In the alternative, the plaintiffs sought for an order for refund of earnest amount of Rs. 5,00,000/- (Rupees Five Lakh Only) from the defendant with interest at the rate of 24% per annum from the date of suit till the date of realisation and to decree the suit along with costs."

The defendant filed the written statement in the Court below as hereunder:

"It is stated that the suit is not maintainable either in law or on facts. It is barred by time. It is liable to be dismissed in limine.

It is true that an agreement of sale was entered into on 14.07.2004 between the plaintiffs and the defendant in respect of the suit schedule property and in pursuance thereof, Rs. 2 Lakh was paid by the plaintiffs towards part payment of sale consideration agreed at Rs. 5 Lakh. The further averments regarding payments on different dates may be true, but this does not absolve the plaintiffs from the bar of limitation because as per clause-2 of the sale agreement, time was the essence of contract and three months'' time was fixed. Since three months'' time had elapsed, any payment made subsequent to the said period, shall not enure to the benefit of the plaintiffs, especially when there is no extension of time given in writing. Hence, the suit is liable to be dismissed as the agreement of sale cannot be enforced. The defendant has not received the total consideration as alleged.

It is stated that the averments and allegations made that the agreement of sale was made on 14.07.2004 in respect of the suit schedule property for Rs. 5 Lakh is correct; but the further allegation that the entire amount was paid is not admitted. Mere payment of balance, that too on installment basis at the whims and fancies of the plaintiffs will not enure to their advantage regarding the time stipulated in the agreement. Thus, payments as alleged were time barred and at no point of time, the plaintiffs sought extension of time for sale. It is further denied that the plaintiffs were not given copies or originals of documents in respect of the suit schedule property. In fact, at the time of executing the sale agreement, the Xerox copies of the documents were given and on perusal of the same, the plaintiffs agreed to purchase the suit schedule property. At no point of time, the defendant handed over possession to them. The fact is that, plaintiff No. 3 who is a broker and not a relative, as alleged by the plaintiffs, pestered the defendant to give the keys of the house existing on the property with SEVEN square building with A.C sheets roof (which fact is apparent from the agreement and the schedule), in order to show the same to some other persons. The defendant being a pardanashin lady who had no other persons to support her as her husband had divorced her and she was observing iddat period, believed plaintiff No. 3 and handed over vacant possession of house. Taking advantage of this situation, plaintiff No. 3 did not return the keys for about two months; but gave the keys of the house to the plaintiffs without the consent of the defendant. The defendant came to know of this illegal and high-handed act subsequently, and on being asked, the plaintiffs requested the defendant to keep quiet as they would help her in the deal and would pay excess amount over and above the agreed sale price, because the property was worth more than fifteen lakh. Hence, the averment that only one room measuring 10'' x 10'' was handed over to the plaintiffs is absolutely false. No possession was voluntarily given in pursuance of the agreement and there is no recital in the sale agreement to this effect. In this regard, the defendant is contemplating action for recovery of possession and mesne profit from the plaintiffs. The further averments that the plaintiffs constructed and invested are utterly false. When there was already SEVEN square building existing on the property, there was no necessity for the plaintiffs to put up further construction as alleged. It is only a concocted story. The defendant had never parted with possession but was deceived and illegally occupied the house.

The defendant stated that at no point of time, the plaintiffs approached the defendant showing their willingness but went on postponing the deal because they had no money to complete the deal within three months'' time. So, they set-up a theory to overcome the bar of limitation.

The defendant stated that since the plaintiffs had no money to complete the deal in time, resorted to file a bare injunction suit which was dismissed and no undertaking was given by the defendant. The plaintiffs should have filed a suit for specific performance immediately. Permission of the Court below was also not obtained while the two suits for bare injunction were dismissed as not maintainable.

The defendant stated that at no point of time, the defendant received any notice as alleged, as it was sent to a wrong address. Even the notice sent through certificate of posting would not help the plaintiffs as it was not deemed to be served upon the defendant in the eyes of law.

The defendant stated that the plaintiffs were not at all ready and willing to perform their part of contract because they had no money and the time had already passed over. It is only to gain time and to get over limitation, pestering the defendant made certain payments by force and filed the suit. Further, in the earlier two suits, no leave of court was sought and without seeking leave to reserve right to file a suit for specific performance, the plaintiffs are precluded from the same and the suit is not maintainable and it is liable to be dismissed.

The defendant stated that there is no cause of action. The suit is barred by time and it is not maintainable. The suit is undervalued as the market value of the property is more than twenty lakh. The Court-fee paid is insufficient. Therefore, the defendant pray for dismissal of the suit."

Based on the pleadings, the Trial Court has framed the following issues:

"1. Whether the plaintiffs prove that defendant agreed to sell the suit properties for Rs. 5 Lakh and received Rs. 10,000/- as advance, received Rs. 2 Lakh and executed agreement of sale on 14.07.2004, later received the remaining sale consideration amount on various dates as stated in para 3 of the plaint?

Whether plaintiff was ever ready and willing to perform his part of contract?

Whether the defendant proves that time was the essence of contract, the suit is time barred?

What order or decree?"

The trial Court answered the above issues as under:

"1. Affirmative

Affirmative

Negative

As per final order"

The minor guardian of plaintiffs 1 and 2 was examined as P.W.1. After attaining majority, plaintiff No. 2 was examined as P.W.2. One Syed Mohsmuddin was examined as P.W.3. the plaintiffs got marked Exs.P1 to P11. The defendant was examined as D.W.1 and got marked Exs.D1 to D8.

The finding of the Trial Court is as under:

"The Trial Court at paragraph-8 of the judgment has observed that it is not in dispute that the defendant is the absolute owner in possession of the suit schedule property. It was specifically contended by the plaintiffs that the defendant agreed to sell the suit schedule property for Rs. 5 Lakh and received part consideration amount and executed an agreement of sale on 14.07.2004. The execution of agreement of sale dated 14.07.2004 was categorically admitted by the defendant both in the written statement as well as in his cross-examination.

The relevant evidence of DW.1 is in vernacular language. It is stated as under:

"Due to financial constraint, suit schedule property was sold to plaintiff Nos. 1 and 2. Signature on Ex. P1 were shown to me and they belong to me and they were already marked as Exs.P1(a) to P1(e). Ex. P1 was written by me. During the execution of Ex. P1, defendant Nos. 1 and 2 were minors. On behalf of defendant Nos. 1 and 2, their mother has affixed her signature on Ex. P1, but I have not seen her. The sale consideration was agreed to be Rs. 5,00,000/-. I have read the contents of Ex. P1 and affixed my signature. I have received Rs. 10,000/- by way of cheque on 1.7.2004, prior to signing of Ex. P1. When Ex. P1 was executed, Davood has paid Rs. 1,90,000/- and it was told that, including Rs. 10,000/- paid earlier, Rs. 2,00,000/- was paid."

On plain reading of the categorical admissions made by D.W.1 during her cross-examination, and the contents of the agreement of sale makes it very clear that the defendant has categorically admitted the execution of the agreement of sale dated 14.07.2004 and receipt of Rs. 2 Lakhasper Ex. P1.

The Trial Court at paragraph-9 of the judgment has observed that in order to prove that plaintiffs were ever ready and willing to perform their part of contract, plaintiffs categorically deposed before the Trial Court that mother of plaintiff Nos. 1 and 2 entered into an agreement of sale with the defendant to purchase the suit schedule property. On the date of execution of the agreement of sale, she has paid Rs. 2 lakh on 1.7.2004 and thereafter, she has paid Rs. 1 Lakh each on 1.12.2004 and 20.12.2004 through separate cheques, a sum of Rs. 40,000/- through a cheque dated 28.01.2005, Rs. 50,000/- through cheque dated 12.04.2006 and thus, she has totally paid Rs. 5 Lakh as full consideration amount. On every date, the plaintiffs expressed their readiness and willingness to perform their part of contract and it is the defendant who postponed the same on one or the other pretext. However, the defendant though admitted the execution of agreement of sale -Ex. P1, contended that as per Clause No. 2 of the Agreement of sale, three month''s time was fixed to complete the sale transaction from the date of agreement. Within the stipulated time, when the plaintiffs did not come forward to get the sale deed executed by paying the balance sale consideration amount, time being the essence of the contract, agreement of sale became unenforceable. It is not in dispute that as per Clause No. 2 of the agreement of sale, three month''s time was fixed for payment of balance sale consideration amount of Rs. 3 Lakh. The plaintiffs were liable to get the sale deed executed within the said time. However even after the expiry of the time limit fixed in the agreement of sale, the defendant received the balance sale consideration, i.e. on 1.12.2004, 20.12.2004, 28.01.2005 and 12.04.2006. If at all time was the essence of the contract as contended in the written statement by the defendant, what was the necessity for the defendant to receive six cheques and get the cheques encashed even after the expiry of the time limit fixed in the agreement of sale.

If time was the essence of the contract as contended by the defendant, her normal conduct would be to refuse to receive the four cheques after expiry of the time limit fixed in the agreement of sale and she would have immediately cancelled the agreement of sale Ex. P1. Instead of doing so, the defendant received the balance sale consideration amount on subsequent dates. Therefore, it is very clear that even though three months'' time was fixed in the agreement of sale, in view of the subsequent conduct of the defendant, time did not remain the essence of contract. Even though it is contended by the defendant that time was the essence of the contract and the suit filed by the plaintiffs is time barred, in order to prove the same, absolutely no material evidence is placed. The plaintiffs issued a legal notice on 04.08.2006 as per Ex. P2 calling upon the defendant to execute the sale deed. In spite of issuing a legal notice, the defendant did not come forward to execute the sale deed in favour of the plaintiffs though the plaintiffs were ever ready and willing to perform their part of contract. Therefore, the plaintiffs filed the suit for specific performance. The documentary and oral evidence produced by the plaintiffs clearly indicate that they were ready and willing to perform their part of the contract from the date of agreement of sale. Though it is contended by the defendant that she did not receive the amounts issued through four cheques referred to supra, Exs.P8 and P9 clearly indicates that four cheques were issued in the name of the defendant which were got encashed through her agent, who has signed before the bank authorities and received the cash. P.W.3 who is the employee working in the office of Qamar Sait categorically deposed that the cheque for Rs. 1 Lakh dated 20.12.2004 issued by the plaintiffs in the name of the defendant in pursuance of the agreement of sale was got encashed by him and handed over the same to the defendant. Even though elaborate cross-examination was made to this witness, nothing has been elicited that such amount was not at all received by the defendant in terms of the said cheques. On perusal of the documentary and oral evidence referred to supra, it is clear that though the defendant has received the entire sale consideration amount, she did not come forward to execute the sale deed in favour of the plaintiffs, though the plaintiffs were ever ready and willing to perform their part of contract. The Trial Court held that the plaintiffs have proved their case and decreed the suit of the plaintiffs and directed the defendant to execute the sale deed in respect of the suit schedule property within one month failing which the plaintiffs are entitled to get the sale deed executed through the process of the court."

Feeling aggrieved by the same, the defendant has preferred this appeal.

I have heard the learned counsel for the appellant as well as the learned counsel for the respondents. I have perused the trial Court records.

Learned counsel for the appellant submits as under:

"The suit is not maintainable for specific performance as it is barred under Order II Rule 2 of the Code of Civil Procedure. Respondent Nos. 1 and 2 have chosen to file the suits for bare injunction vide O.S. Nos. 16576/2004 and 15329/2005. They have deliberately omitted to claim the relief of specific performance. Consequently, the third suit in O.S. No. 16792/2006 is not permissible. As per the agreement of sale, transaction was to be completed within three months. Respondent Nos. 1 and 2 without making payment went on filing suits for bare injunction. Learned counsel for the appellant also invoked the principles of res-judicata. Cheques at Exs.P7, P8, P11 were issued by respondent No. 3. The said cheques were Bearer-Cheques. They were allegedly encashed by one Syed Mohsinuddin (P.W.3) and some were alleged to have been encashed by the son of the appellant namely, Mr. Ruman, who was minor at the time.

The cheques pertains to the account belonging to respondent No. 3. In the passbook entries of the account of respondent No. 3 at Ex. P5, it is seen that the alleged amounts were deposited just one day before the encashment of the aforesaid cheques.

Respondent No. 3 is not a party to the agreement of sale (Ex. P1). Respondent No. 3 is not a guardian and next friend of respondent Nos. 1 and 2. There was no impediment for respondent Nos. 1 and 2 to pay the money directly to the appellant by way of Demand Draft or by way of Account Payee cheques. No separate receipts have been obtained by respondent Nos. 1 and 2. The burden of proof of payment is on the respondents under Section 101 of the Evidence Act.

The impugned judgment and decree is not sustainable. The same is passed in gross disregard to the settled law. The learned Trial Judge has not appreciated that respondent Nos. 1 and 2 have failed to make-out a case entitling them for the relief of specific performance. The learned Trial Judge has failed to appreciate the aspect that respondent Nos. 1 and 2 have acted in collusion with respondent No. 3. Respondent No. 3 is a real estate agent engaged by the appellant for the purpose of selling the suit schedule property. Respondent No. 3 is totally unconnected with respondent Nos. 1 and 2. Learned Trial Judge has failed to appreciate that the alleged notice dated 04.08.2006 was not received by the appellant and the respondents have failed to produce evidence to substantiate their claim."

Learned counsel for the appellant relied on the following rulings in support of his contention:

"(i) In the case of Virgo Industries (Eng.) P. Ltd. Vs. Venturetech Solutions P. Ltd., ; wherein Head Note ''C'' reads as under:

"C. Civil Procedure Code, 1908 - Order 2, Rr.2(2) & (3) and S.11 - Omission to claim one out of many reliefs that could have been claimed in suit -Bar of filing subsequent suit/multiple suits on same cause of action - Object and scope - Held, is to avoid multiplicity of litigations on same cause of action - Hence, bar of filing subsequent suit on same cause of action is applicable both during pendency of first suit, and also where first suit is disposed of"

(ii) In the case of E. Jayaram and Another Vs. Lakshmi alias Bhagyalakshmi and Another, ; wherein Head Note ''A'' reads as under:

"A) CODE OF CIVIL PROCEDURE, 1908-ORDER II RULE 2 - LEAVE OF COURT -TRANSFER OF PROPERTY ACT 1882 -SECTION 53-A - PART PERFORMANCE OF CONTRACT (AGREEMENT OF SALE) - BARE INJUNCTION SUIT - Filed without seeking leave of the Court to reserve the right to sue for any other relief to seek specific performance of the agreement of sale - Is the respondent barred from claiming the relief of specific performance - HELD - If respondent is barred from claiming any relief of specific performance, the incidental relief of injunction in aid of a possible relief of specific performance would be unavailable to the respondent." (Para 7)

(iii) In the case of N.P. Thirugnanam (D) by L.Rs., Vs. Dr. R. Jagan Mohan Rao and others, ; wherein Head Note ''B'' reads as under:

"(B) Specific Relief Act (47 of 1963), S. 16(c) -''Ready and willing to perform'' - Evidence showing that plaintiff was never ready with resources and money to fulfill his part of contract - Dismissal of suit for specific performance of contract -Justified."

(iv) In the case of Manjunath Anandappa Urf. Shivappa Hanasi Vs. Tammanasa and Others, ; wherein Head Note A'' reads as under:

"(A) Specific Relief Act (47 of 1963), S.16 -Specific performance of contract for sale -Readiness and willingness of plaintiff to perform his part of obligation - Averment and proof of said requirement of S.16(c) is mandatory - Plaintiff not making any averment to that effect - Nor even asked defendant to execute deed of sale in his favour or tendered balance amount of consideration to her within period of 3 years from date of agreement -Merely making statement that defendant did not execute sale deed despite notice being issued - Do not satisfy mandatory requirement of S.16(c) -Particularly, when notice was served upon power of attorney holder of defendant which was already revoked to knowledge of plaintiff - And the power of attorney was not registered one and holder was not competent to execute registered sale deed.

Powers of Attorney Act (7 of 1882), S.2 ."

(v) In the case of K.S. Vidyanadam and Others Vs. Vairavan, ; wherein Head Note reads as under:

"Specific Relief Act (47 of 1963), S.20 -Specific performance - Agreement to sale - Certain time limit prescribed for taking steps by one or other party - May not amount to making time the essence of contract but must have some significance -Cannot be ignored altogether by Court - Total inaction on part of purchaser for 2 1/2 years in violation of terms of agreement - Delay coupled with substantial rise in prices of properties - It would be inequitable to give relief of specific performance to purchaser."

Learned counsel for the respondents submits as under:

"The appellant is not a divorced lady as claimed by her. She claims to be a divorcee only to gain sympathy of the Court. Further, her son by name Ruman is running a wholesale business in shoe and footwear which is located in Babasaheb Ambedkar Road, Arabic College Post, Bangalore, under the name and style of "Fashion Shoes". Hence, she is not a helpless lady as claimed by her. She has her own house located at No. 60, 5th Cross, Arokyamma Layout, Venkateshpuram, Bangalore-560 045 and she collects rent of Rs. 20,000/- per month from the rented portion of the premises. Further due to her delaying tactics, the suit filed by the respondents has been dragged on for several years. When the notice was issued to her for her appearance in the suit, she evaded the same and she took nearly four years to appear before the Court and also delayed to file the written statement. In fact, she filed an application seeking permission of the Court to file the written statement and she was imposed cost of Rs. 500/- for filing the written statement. She has also changed half-a-dozen advocate to prosecute the case. This clearly shows the want of diligence on the part of the appellant to prosecute the case."

Learned counsel for the respondents relied on the following rulings in support of his contention:

"(i) In the case of B.R. Mulani Vs. Dr. A.B. Aswathanarayana and Others, ; wherein Head Note ''B'' reads as under:

"(B) Civil Procedure Code (5 of 1908), Order 14, Rule 1 - Abandonment of plea - Party allowing the matter to be decided without raising issue in respect of certain plea - Party must be deemed to have abandoned plea.

Whenever a party raises a plea and does not have the issue raised in that regard and goes to trial and have the matter decided without having an issue raised on the plea, the party must be deemed to have given up such a plea." (para 29)

(ii) In the case of M/s. Bengal Waterproof Limited Vs. M/s. Bombay Waterproof Manufacturing Company and Another, ; wherein Head Note A'' reads as under:

"A. Civil Procedure Code, 1908 - Order 2, Rule 2(3) - Bar under, in respect of claim of relief in subsequent suit - Plea of - Held, maintainable only if defendant files in evidence before trial court pleadings in the previous suit to prove identity of cause of action in the two suits - Inference about the bar under Order 2, Rule 2(3) cannot be culled merely from the plaint in the second case - Attempt to bring the pleadings of the earlier suit on record at the Supreme Court stage not good enough and hence disallowed."

(iii) In the case of Shaik Buddan Sab and others Vs. Nagamma and another, ; wherein Head Note ''B'' reads as under:

"(B) Limitation Act (1963), Section 3 - Plea of limitation - Abandonment of - Defence of limitation in written statement - No issue framed -Trial Court not persuaded to do so by defendant -No evidence led nor arguments advanced on that point - Even before High Court no attempt made to substantiate the plea of limitation - Held defendants must be deemed to have abandoned the plea."

(iv) In the case of VEERABHADRAPPA v. BASHETTAPPA reported in ILR 1987 KARNATAKA 3873; wherein Head Note ''B'' reads as under:

"(B) CIVIL PROCEDURE CODE, 1908 (Central Act No. 5 of 1908) - Order 14 Rule 1 -Plea taken but issue not raised and trial gone through amounts to abandonment of Plea - Grievance thereof not at Second Appeal stage in the absence of any prejudice."

(v) In the case of P. D''Souza Vs. Shondrilo Naidu, ; wherein Head Notes ''C'' & ''G'' read as under:

"C. Specific Relief Act, 1963 - S.20(2)(a) & (b) r/w Explanations I & II - Hardship on defendant which he did not foresee - Agreement for sale of immovable property - Vendee seeking specific performance thereof - Escalation of prices -If ground for refusing specific performance - Held, clarifying Nirmala Anand Vs. Advent Corporation Pvt. Ltd. and Others, , no law in absolute terms has been laid down by the Supreme Court that in all such cases, the court should either refuse to grant specific performance or direct the plaintiff to pay a higher sum - On facts, held, it was not a case where the defendant did not foresee the hardship."

"G. Contract Act, 1872 - S.55 - Time, whether essence of the contract - Held, where the defendant accepted part-payment of the sale agreement without demur at a later date and even sought extension of time for registering the sale deed at a date later than the one stipulated in the agreement, time could not be said to be essence of such contract."

No ground is mentioned in the written statement filed by the defendant stating that the suit is bad in law as the whole claim has not been claimed. Earlier suits filed by the plaintiffs were only for bare injunction. In the suits for bare injunction, the plaintiffs have omitted to seek the relief of specific performance. Under Order 2 Rule 2 of CPC, the plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Since the suits were for bare injunction, the plaintiffs have omitted to seek the relief of specific performance. It is not mandatory that the suit for injunction should conjunctively go with the relief of specific performance. The second cause of action was not accrued when the suit for injunction was instituted. The cause of action in both the suits were different. There was no question of relinquishment or omission to sue part of the claim. The provision of Order II Rule 2 were not attracted. The plaintiff was not debarred from claiming the relief of specific performance. No averments are made in the written statement stating that the suit is bad in law in view of Order 2 Rule 2 of CPC. When the defendant wanted to sell the suit schedule property, the plaintiffs sought for injunction against the defendant restraining her from alienating the suit schedule property to third party. In such a situation, in my view, instituting a suit for specific performance need not be necessary.

One of the contentions raised by the learned counsel for the appellant is that time was the essence of contract. An express declaration of intention to treat time as essential must receive effect, but the intention must be clearly expressed. The mere fact that a date has been mentioned does not prove conclusively that time was intended to be of the essence of the contract. At common law, a plaintiff, suing for specific performance, had to show that he had performed his part of the contract within the time specified in the contract or within a reasonable time; in other words, at common law, time was always of the essence of the contract. Equity, however, came to distinguish between essential and non-essential terms of a contract and held that while essential terms must be strictly performed, non-essential and formal terms could be performed within a reasonable time. Thus, Equity held time to be prima facie nonessential, and unless the parties expressly declared it to be so, regarded performance within a reasonable time as generally sufficient, on the same principle as that according to which it relieved against penalties.

Para-6 of Ex. P1 -agreement of the sale reads as under:

"In case of the vendor fails to register the sale deed within the agreed time of this agreement, in such a case the Vendor shall pay an additional sum of Rs. 50,000/- (Rupees Fifty Thousand Only) along with the advance sum paid by the purchasers, likewise, if the purchasers fail to have the said sale deed registered in their names by paying the balance sale consideration within the agreed time, in such an event the Vendor is at liberty to deduct Rs. 50,000/- (Rupees Fifty Thousand Only) out of the advance amount paid by the purchasers and return the balance."

This clause has been included in the agreement of sale. The intention of the parties is clear that the time was not essence of contract. It was agreed between the parties, in case if the seller fails to register the agreement of sale within the agreed time, she shall pay an additional sum of Rs. 50,000/-. Similarly, if the purchasers fail to get registered the agreement of sale by paying the balance sale consideration, the Vendor/seller is at liberty to deduct a sum of Rs. 50,000/- out of the advance amount paid by the purchasers. From this it is clear that time was not the essence of contract.

Learned counsel for the appellant - defendant specifically contended that the consideration amount of Rs. 3,00,000/- (Rupees Three Lakhs Only) was not received by the defendant. Though the defendant has contended that she has not received the consideration amount, such a contention was not taken in the written statement. It is also not stated in the written statement that the cheques issued in favour of Rufkha Masood were bearer cheques and encashed by plaintiff No. 3. The legal notice was issued to the appellant/defendant, wherein it is clearly indicated that token advance of Rs. 10,000/- was paid on 01.07.2004 and later on, Rs. 2,00,000/- was paid on 14.07.2004 under the agreement of sale and later on Rs. 1,00,000/- was paid on 02.12.2004 and Rs. 1,00,000/- was paid on 20.12.2004 and Rs. 40,000/- was paid on 28.01.2005 and Rs. 50,000/- was paid on 12.04.2006. As per the agreement, consideration price was fixed at Rs. 5,00,000/-(Rupees Five Lakhs Only). Though notice was sent, shara is mentioned on the cover as ''not claimed, returned to sender''. Even though notice was issued under the Certificate of Posting, the defendant/appellant has not taken steps to reply to the notice. In the written statement, it is not mentioned that a sum of Rs. 3,00,000/- (Rupees Three Lakhs Only) was not paid to the defendant by the plaintiffs. Though they have taken this contention at the appellate stage, the facts constituting as to how the amount of Rs. 3,00,000/- (Rupees Three Lakhs Only) was diverted is not forthcoming. Therefore, in the absence of pleadings, the trial Court was unable to frame an issue in this regard. Just by denying this contention, the defendant will not establish her case. The facts constituting those aspects has to be narrated in detail in the written statement. Such averment is not forthcoming in the written statement. For the first time, this contention has been raised at the appellate stage, in the absence of denying that the defendant did not receive a sum of Rs. 3,00,000/-(Rupees Three Lakh Only). In the written statement, it is mentioned that cheques as per Exs.P7, 8, 9 and 11 were encashed.

Based on the pleadings and evidence adduced and also appreciating the materials placed on record, the Trial Court came to a conclusion that the suit of the plaintiffs has to be decreed, accordingly, suit of the plaintiffs was decreed. The defendant was directed to execute the sale deed in respect of the suit schedule property. The reason offered by the trial Court is sound and proper. No ground is made out to interfere with the impugned judgment and decree of the trial Court. In that view of the matter, this appeal fails and the same is liable to be dismissed.

In the result, I pass the following:

This Regular First Appeal is dismissed."