Vilas V. Afzulpurkar, J.
1. This is a plaintiffs appeal against the dismissal of suit for specific performance of an agreement of sale-Ex.A1 dated 17.11.1984. The trial Court, while declining to grant specific relief sought for by the plaintiff, has decreed the suit to the extent of refund of advance amount with interest. Since the relief of specific performance was denied to the plaintiff, the present appeal is filed. The parties will be referred to as they are arrayed in the suit.
2. Brief facts. The defendants 1 and 2, who are father and son, are owners of the suit schedule property which consists of two items of agricultural land. The plaintiff alleges that in the suit schedule property mango and cashew nut gardens were existing. The defendants offered to sell the suit schedule property admeasuring Ac. 10-45 cents at the rate of Rs. l1,200/- per acre and out of total sale consideration of Rs. l,17,040/-, an amount of Rs. l4,000/- was paid by the plaintiff as advance on the date of agreement of sale-Ex.A1, dated 17.11.1984. The plaintiff has extracted the gist of several clauses of the agreement of sale in para-3 of the plaint, regarding which, there is any amount of controversy, as the defendants claimed that several such clauses as extracted in para-3 of the plaint are not part of Ex.A1. The plaintiff further alleges that she paid Rs. 3,000/- on 24.12.1984 towards part payment of balance of sale consideration, but neither there is any receipt nor any endorsement of such part payment on Ex.A1. The plaintiff also claims that she purchased non-judicial stamps of worth Rs. 3,600/- through a document writer Vaka Gurumurthy at Sub-Treasury, Rajahmundry so as to obtain the registered sale deed from the defendants. The plaintiff alleges that number of times she had requested the defendants to clear off the encumbrance on the property and obtain income tax clearance certificate, but the defendants were postponing the execution of sale deed on one pretext or the other. The plaintiff is alleged to have later cancelled the non-judicial stamps and issued a telegraphic notice-Ex.A2 on 26.2.1985, followed by another notice dated 21.3.1986-Ex.A3. It is alleged that the defendants did not give any reply either to Ex.A2 or to Ex.A3 notices. It is also alleged that there were 185 mango trees, 50 cashew nut trees, 26 sapota trees, 6 big teak-wood trees and 30 small teak-wood trees in the suit schedule property and after exchange of notices in 1986, 6 big teak-wood trees, 15 mango trees were cut away by the defendants causing wrongful loss to the plaintiff to the tune of Rs. 36,000/-. The plaintiff also alleged that she invested Rs. 1,000/- for spraying pesticides in the mango garden in the year 1985 to realize the usufructs. Thus the plaintiff claimed that she is entitled to reimbursement of damage caused to the trees as well as the amount spent on pesticides. Once again the plaintiff issued notice-Ex.A6 on 18.12.1986 to the defendants and ultimately filed the present suit as the defendants committed breach of Ex.A1. The plaintiff has alleged that she is ready and willing to deposit the balance of sale consideration before the trial court as and when directed. The relief claimed in the suit is one for specific performance of the agreement of sale or in the alternative a decree for Rs. 68,000/- together with interest @ 12% P.A. by creating charge on the suit schedule property. The said amount of Rs. 68,000/- comprises Rs. 14,000/- towards advance payment under Ex.A1, Rs. 3,000/- said to have been paid on 24.12.1984, Rs. 1,000/- said to have been spent on pesticides and Rs. 50,000/- towards damage caused to trees which were cut away by the defendants.
3. The defendants filed a written statement admitting execution of Ex.A1-agreement of sale and also payment of advance amount of Rs. 14,000/- at the time of agreement. They, however, denied that there was any such agreement that the defendants had to clear the encumbrance on the property before execution of sale deed and before receiving balance of sale consideration. The defendants pleaded that on the contrary it was agreed under Ex.A1 that the debts owed by the defendants to Land Mortgage Bank have to be discharged and the discharge vouchers have to be handed over to the plaintiff. They also pleaded that several conditions which are incorporated in para-3 of the plaint are incorrect. It is also alleged that the plaintiff was never ready and willing to obtain registered sale deed, though the defendants demanded her to pay the balance of sale consideration as per Ex.A1, inasmuch as the defendants had entered into Ex.A1 only for the purpose of discharging the debts. The defendants denied that an amount of Rs. 3,000/- was paid by the plaintiff on 24.12.1984. They also disputed that the plaintiff purchased non-judicial stamps. They also disputed that there was any condition of obtaining income tax clearance certificate as alleged by the plaintiff on the ground that the defendants are only agriculturists and they are not liable to be assessed to income tax. They also alleged that even under Ex.A7-reply dated 8.1.1987 the defendants called upon the plaintiff to pay the balance of sale consideration, but she was not ready and willing and with a view to cover up the defaults on her part, and to get back the advance amount, the plaintiff has resorted to making correspondence starting with Ex.A2-telegraphic notice dated 26.2.1985. It is asserted that the defendants had replied to the telegraphic notice and therefore did not once again reply to the further notice-Ex.A3 dated 21.3.1986. The defendants also disputed the existence of number of trees as alleged by the plaintiff and asserted that all the trees which were existing at the time of agreement of sale still continue to exist except small mango trees which were dried up on account of drought. The claim for damage and also for Rs. 36,000/- is disputed. The plaintiffs contention that she spent Rs. 1,000/- for spraying pesticides is also denied and it is asserted that it is the plaintiff who was never ready and willing. They also disputed that the plaintiff is entitled to any amount with 12% interest and asserted that the breach of contract was committed by the plaintiff. Accordingly they prayed for dismissal of the suit.
4. A rejoinder was also filed by the defendants to the extent of notice issued by the plaintiff under Order 12, Rule 8 of Code of Civil Procedure which is said to have been issued after the suit was reserved for judgment. (Normally plaintiff files rejoinder, but she has not filed any rejoinder). It is, therefore, not necessary to deal with the same especially as the said notice of plaintiff is also not part of the record.
5. During the trial, the plaintiff examined PWs. 1 to 3 and marked Exs.A1 to A9 which are suit agreement, exchange of notices, acknowledgments, extracts of bank account from 1983 to 1985 and Xerox copy of pension book of plaintiffs husband to show the capacity of the plaintiff to pay the balance of sale consideration. The defendants examined D.Ws 1 to 13 and marked Exs.B1 to B11. Most of the evidence on the part of the defendants, both oral and documentary, is with respect to their liabilities to the bank, disbursement and repayment of loan etc. Exs.X1 to X12 were also marked which are loan ledger, loan repayment ledger, loan disbursement ledger counter foils etc.
6. The trial Court had framed two issues as to whether the plaintiff is entitled to specific performance and whether the time is essence of contract and both the said issues were considered together. The trial Court found that the defendants 1 and 2 agreed to sell the suit schedule property for the purpose of discharging their bank debts and for meeting expenses towards agriculture and family and they had no money to discharge their debts and that is why a date was fixed in the contract as 27.2.1985 for payment of sale consideration by the plaintiff. The trial court found that if all the contents of Ex.A1 were read together, the aforesaid inference can be found and it is impossible for the defendants to discharge encumbrance on the property without payment of balance of sale consideration. The trial court further found that the time limit mentioned in Ex.A1 was the essence of contract and it is impossible and improbable for them to redeem the debts and the plaintiff, knowing fully well about the same, insisted the defendants for registration of sale deed by receiving the balance of sale consideration and she also insisted them for clearance of encumbrance on the property before registration, which is contrary to Ex.A1. The trial court also found that the plaintiffs insistence for fulfillment of a condition precedent i.e., income tax clearance certificate is not stipulated under Ex.A1 and as such it found that it was justifiable to refuse the specific relief. To the extent of claim for damages made by the plaintiff, the trial court found that there is no evidence on the part of the plaintiff that the defendants caused any damage to the property and there is also no evidence to prove that the plaintiff paid Rs. 3,000/- to the defendants or spent Rs. 1,000/- on pesticides as alleged by the plaintiff and on the conduct of the plaintiff it was found that she was not mentally prepared to obtain a registered sale deed and only to the extent of refund of advance amount of Rs. 14,000/- with interest alone the suit was decreed.
7. In the present appeal, Sri P. Keshava Rao, learned Counsel for the plaintiff/appellant has taken me through pleadings as well as oral and documentary evidence on record and has raised the following contentions. It is argued that Ex.A1 having been admitted, the clauses under Ex.A1 clearly support the plaintiffs case that the defendants have to discharge their debts, clear the encumbrance on the property and deliver the vouchers evidencing the clearance of the debts and the plaintiff could not have obtained the registered sale deed without proof of clearance of encumbrance. The learned Counsel contends that in order to have a clear title, the defendants were bound to discharge all the debts, and if the plaintiff sought to pay the balance of sale consideration, the charge and encumbrance over the property would not give the plaintiff a clear and marketable title. He further contends that the plaintiff had purchased non-judicial stamps and in further proof of the same, he filed an application being CMP No. 524 of 2007 requesting this Court to receive as additional evidence the proceedings of Sub-Collector, Rajahmundry, dated 6.9.1985 whereby the non-judicial stamps worth Rs. 3,350/- were treated as spoiled under Indian Stamp Act and a refund thereof was ordered after deduction of 10% of the value. He further contends that the readiness and willingness of the plaintiff is established from the fact that she and her husband are leading Dentists at Rajahmundry town and in addition to it, the plaintiffs husband has retired from Government service and has received pensionary benefits which were also available. He contends that Exs.A8 and A9 which are pass books of bank account and pension respectively would substantiate the financial capacity of the plaintiff. He further contends that the defendants' notice and the written statement in the suit are at great variance and the offer made by the defendants in Ex.A7 itself shows that the time is not the essence of contract. He further contends that the defendants have demanded interest over the balance of sale consideration under Ex. A7 which is not in accordance with the agreement-Ex.A1. He further contends that the finding of the trial court that encumbrance has to be cleared from out of the balance of sale consideration is not part of the bargain stipulated under Ex.A1. He also contends that defendants failed to substantiate their reply to notice-Ex.A2 and claims that from the stage of Ex.A7 notice, the defendants have gradually developed and improved upon their case when they filed their written statement and later when D.W.1 gave evidence. He contends that if really the encumbrance has to be cleared from out of balance of sale consideration, the defendants could have called upon the plaintiff to pay the amount required therefor and as such he submits that there is no ground to deny the specific relief sought for by the plaintiff. He has relied upon a decision of this Court reported in Pradeep Kumar and Anr. v. Mahaveer Pershad and Ors. 2002 (6) ALT 360 for the proposition that when the terms of a document are unambiguous, no extrinsic evidence is permissible. On the basis of the above proposition, he contends that when Ex.A1 does not mention as to whether the sale consideration is payable for liquidating the debts before registration or along with the registration, it cannot be considered in the absence of any pleading or evidence by the defendants. He has also relied upon decisions of the Supreme Court reported in Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors. : [1978]2SCR272 and Bhusawal Borough Municipality v. Amalgamated Electricity Co. Ltd. Bhusawal and Anr. : [1964]5SCR905 for the proposition that misconstruction of a document is an error of law. He also relied upon K. Sambasiva Rao v. P. Bangaru Raju : AIR1985AP393 to claim that mere delay cannot disentitle the plaintiff of specific relief. He further relied on a decision of the Supreme Court reported in Mademsetty Satyanarayana v. G. Yelloji Rao and Ors. : [1965]2SCR221 and a decision of this Court in Raja Ratan Gopal Sainchar (died) v. Rajendra Prasad : 1997(1)ALT45 with regard to readiness and willingness. He also relied upon on a decision of the Supreme Court reported in Billa Jagan Mohan Reddy and Anr. v. Billa Sanjeeva Reddy and Ors. : [1994]1SCR429 to support the application for additional evidence filed in this appeal.
8. Smt. I. Mammu Vani, learned Counsel for the respondents/defendants has submitted that firstly Ex.A1, if read as a whole, supports the case of the defendants that they were in heavy debts and they intended to clear off the bank loans and also required money to meet the agricultural and domestic expenses and for that purpose they agreed to sell the suit schedule property to the plaintiff. Further they had specifically stipulated the date i.e., 27.2.1985 for payment of balance of sale consideration and not payable simultaneously with registration. She contends that the preamble of Ex.A1 and all other terms read together would show the aforesaid intention of the parties, but the plaintiff is unilaterally reading only one part of Ex.A1 which is convenient for her. She further submitted that there is no evidence on the part of plaintiff to show that she paid further amount of Rs. 3,000/- and that the plea raised in that regard is false. Similarly there is no evidence as to the claim of the plaintiff that the alleged damage is deductible from the balance of sale consideration and in fact it amounts to variation of Ex.A1. The very notice-Ex. A6 issued by the plaintiff prior to the suit, according to the learned Counsel, would amount to complete variation of Ex.A1-agreement and the plaint which is also based on similar allegations clearly shows that the plaintiff is not entitled to the specific relief. She contends that it is not in dispute that the defendants had already owed heavy debts and had no means to discharge the same, except from out of the balance of sale consideration and therefore only if the plaintiff had paid the balance of sale consideration, the defendants would have been in a position to clear off the debts and deliver the proof in support thereof to the plaintiff, but this does not necessarily mean that the defendants have to discharge the debts first and only thereafter the sale deed would be registered in favour of the plaintiff by receiving the balance of consideration. She further submits that the defendants replied to Ex.A2-notice which is admitted by the plaintiff in Ex.A3 as well as in the plaint and though the defendants have misplaced the office copy of the said reply, they issued a notice to the plaintiff under Order 12, Rule 8 CPC, but the plaintiff has not produced the said copy. She, therefore, submits that under Ex.A7 when the defendants themselves have called upon the plaintiff to obtain a registered sale deed by paying the balance of sale consideration, the plaintiff has not come forward which shows that the plaintiff is not ready and willing. She further contends that Ex.A8-pass book of savings bank account of the plaintiff does not show sufficient funds nor Ex.A9-pension pass book of the plaintiffs husband. The learned Counsel has laid great stress on the aspect that though 27.2.1985 was the date fixed for payment of balance of sale consideration, the plaintiff has, for the first time, acted only by issuing a telegraphic notice-Ex.A2 at 8.25 P.M. on 26.2.1985 (just a few hours before the expiry of the dead line) and further the suit was filed on 16.11.1987 i.e., just on the last day before expiry of limitation and the aforesaid conduct of the plaintiff clearly shows that she is not entitled to specific relief. The discretion under Section 20 of the Specific Relief Act, according to the learned Counsel, does not deserve to be exercised in favour of the plaintiff, even assuming that the plaintiff has proved the contract. She relied upon a decision of the Supreme Court in K.S. Vidyanadam and Ors. v. Vairavan : AIR1997SC1751 for the proposition that the delay and the conduct on the part of the plaintiff is necessarily to be taken into consideration in exercising the discretion under Section 20 of the Specific Relief Act. The learned Counsel further relied upon a decision of this Court reported in Mohd. Abdul Razak v. B. Venkatesh @ Venkataiah : AIR2006AP300 for the proposition that the plaintiff having failed to prove the readiness ami willingness is not entitled to specific relief and she also relied upon another decision of this Court in Penumatsa Narasimha Raju v. Valluri Jaya Prakasa Babu 2006 (2) ALD 666 in support of her contention that the suit notice itself was issued on the last day before the due date and non-compliance of essential conditions of the contract disentitles the plaintiff from seeking specific relief. The learned Counsel also relied upon another decision of this Court in P. Purushotham Reddy and Anr. v. Pratap Steels Ltd. 2003 (6) ALD 145 : Full Report in : AIR2003AP141 for the proposition that the time being essence of contract and the plaintiff coming to the court with false plea, she is not entitled to specific relief and that continuous readiness and willingness on the part of the plaintiff is essentially to be established.
9. To the extent of CMP No. 524 of 2007 filed by the plaintiff to receive additional evidence, the learned Counsel for the defendants has filed a counter and it is contended that even the aforesaid document, sought to be received as additional evidence, does not show that the plaintiff had purchased the said non-judicial stamps and on the contrary the stamps, said to have been purchased by husband of the plaintiff, were treated as spoiled and refund was allowed. It is further evident that the said document also does not show as to when the stamps were purchased. Further the said proceedings were obtained on 6.9.1985 and there is absolutely no reason why the said document was not produced during the trial or along with the appeal and it was only filed at the time of hearing of the appeal. The affidavit filed in support of the said application, it is contended, does not give any reasons whatsoever much less sufficient cause for non-production of the document earlier and she contends that reception of the said document as additional evidence cannot be a matter of course, but must be in accordance with the conditions stipulated under Order 41, Rule 27 of the Code of Civil Procedure and has urged that no circumstance or ground is made out by the plaintiff warranting its reception as additional evidence. She also relied upon a decision of this Court in Ramanivas Gupta and Ors. v. Maliram : 2002(5)ALD362 for the proposition that under Rule 6(2) of the Stamp Rules, 1925 framed under the Indian Stamp Act the stamp papers purchased in the name of one person cannot be used by another and the additional evidence sought to be produced shows that the stamp papers were standing in the name of the husband of the plaintiff and cancellation thereof was also made in favour of the husband, from which, the plaintiff-wife cannot seek any benefit.
10. In the light of the aforesaid submissions, the following points arise for consideration,
(1) What is the true and proper interpretation of Ex.A1-agreement of sale?
(2) Whether the defendants have committed any breach of contract?
(3) Whether the plaintiff is entitled to specific performance of the contract keeping in view the discretion required to be exercised by the Court under Section 20 of the Specific Relief Act?
11. So far as the legal position relied upon by both the learned Counsel is concerned, the same is discussed as under.
12. The decision of this Court in Pradeep Kumar and Anr. v. Mahaveer Pershad and Ors. (supra) dealt with a case where there is a patent ambiguity in a document and the interpretation of the said document was under consideration. On facts of that case, the Court found that the trust deed in the aforesaid case is quite intelligible and there is absolutely no patent ambiguity and held that no extrinsic evidence can be permitted in interpreting the said document. Ex.A1 in our present case, therefore, has to be interpreted keeping in mind the aforesaid dictum. The decision of the Supreme Court in Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors. (supra) has hardly any relevance to the issue involved in this case as the said case deals with the requirements for passing of an administrative order and the principles under the Administrative Law. In Bhusawal Borough Municipality, v. Amalgamated Electricity Co. Ltd., Bhusawal and Anr. (supra) the Supreme Court held that misconstruction of a document which is not merely of evidentiary value but one upon which the claim of a party is based would be an error of law and the High Court in second appeal would be entitled to correct it. The said decision was rendered in an appeal arising out of second appeal under Section 100 of the Code of Civil Procedure. Therefore, it has no application to the facts of the present case as the appeal in this case is filed under Section 96 of the Code of Civil Procedure and even otherwise, the construction of Ex.A1 falls for consideration in this case and the same is discussed in the following paragraphs. Another decision of this Court in K. Sambasiva Rao v. P. Bangaru Raju (supra) was relied upon for the proposition that delay in filing suit for specific performance up to period of limitation is not a ground for refusal of relief. The said proposition has, however, undergone several radical changes in the later decisions of the Supreme Court starting with K.S. Vidyanadam and Ors. v. Vairavan (supra) which is being discussed hereafter at appropriate place. Further the decision of the Supreme Court in Mademsetty Satyanarayana v. G. Yelloji Rao and Ors. (supra) and the decision of this Court in Raja Ratan Gopal Sainchar (died) v. Rajendra Prasad (supra) are relied upon by the learned Counsel for the appellant to show that readiness and willingness is satisfied by the plaintiff and it is not necessary for her to have cash balance to establish the same. Another decision of the Supreme Court in Billa Jagan Mohan Reddy and Anr. v. Billa Sanjeeva Reddy and Ors. (supra) is relied upon for the proposition that when certified copies of public documents emanating from revenue authorities are produced in court with delay, that itself is not a ground to reject the said documents under Order 41, Rule 27 of the Code of Civil Procedure and in the interest of justice, the documents should have been received.
13. So far as the decisions relied upon by the learned Counsel for the respondents are concerned, she primarily relied upon a decision of the Supreme Court in K.S. Vidyanadam and Ors. v. Vairavan (supra) and laid emphasis on paragraphas 11 and 12 thereof. With reference to the present case also it was urged by her that notice was given on the last evening before expiry of time and the suit was filed on the last day before expiry of limitation which circumstance is relevant for the purpose of exercising of discretion by the court. She also relied upon a decision of this Court in Mohd. Abdul Razak v. B. Venkatesh @ Venkataiah (supra) for the proposition that the relief of specific performance is discretionary and it cannot be given merely because it is lawful to do so and the discretion to be exercised shall not be arbitrary and such discretion exercised by the trial court will not be interfered with in an appeal unless it has been exercised perversely, arbitrarily, capriciously, unreasonably or against judicial principles. Another decision of this Court in Penumatsa Narasimha Raju v. Valluri Jaya Prakasa Babu (supra) relied upon by the learned Counsel is also a case where readiness and willingness of the plaintiff in fulfilling his obligations within the time stipulated were considered with reference to Section 16(c) of the Specific Relief Act and the principles as enunciated by the Supreme Court in K.S. Vidyanadam and Ors. v. Vairavan (supra) were applied even with respect to agricultural lands which was subject matter of the said case. Lastly the learned Counsel relied upon a decision of this Court reported in P. Purushotham Reddy and Anr. v. Pratap Steels Ltd. (supra) is also for the above proposition. Applying the aforesaid principles, the questions arising in this appeal are considered and answered as follows.
14. So far as the first point is concerned, the original agreement of sale-Ex.A1 is in Telugu and I have called upon both the learned Counsel to furnish English translation thereof. Both the learned Counsel had given their respective translation versions which are substantially same except for the controversy as to when the balance of sale consideration is payable and whether the discharge of the debts and handing over of vouchers as undertaken by the defendants under Ex.A1 is to precede or follow the registration. According to the learned Counsel for the plaintiff, unless the debts are discharged, the plaintiff would not get clear title and as such he contends that the production of vouchers duly evidencing the discharge of loans is a pre-condition for receiving the balance of sale consideration and registration of sale deed. Per contra, the learned Counsel for the defendants contends that the whole exercise of entering into the agreement by the defendants under Ex.A1 was for the purpose of raising finance to clear off the loans and debts and to meet the agricultural and family expenses and as such unless the plaintiff pays the balance of sale consideration, the defendants have no means to discharge the loan and secure the vouchers evidencing the discharge of debts.
15. In order to appreciate the aforesaid contentions, it is necessary to notice some features of Ex.A1 and for that purpose, the translation of Ex.A1 given by the learned Counsel for the plaintiff is adopted and the relevant portion thereof reads as under,
3. The property which is under my absolute control and enjoyment is the property an extent of Ac.7.45 and the property land an extent of Ac.3.00, total comes under Ac. 10.45 cents. This property I am intended to clear my Bank loans, for the purpose of attend for my agricultural expenses and other domestic expenses, I am intended to sold out the above schedule property at an amount of Rs. l1,200/- per acre, and being you are the purchaser came forward to purchase the same at a total sale consideration amount of Rs. l,17,040/- (Rupees One lakh Seventeen Thousand Forty only) and as an token advance you are paid me an amount of Rs. l4,000/-(Rupees Fourteen thousand only), hence received the advance amount. And also you are agreed to pay the balance amount of Rs. l,03,040/- (Rupees One Lakh Three thousand forty only) on or before 27.2.1985 and got it registration at the purchaser's cost. And also we are agreed to handover the sale schedule property to the purchaser at the time of registration day.
Similarly the note below the Schedule-II reads as follows,
On the subject lands we have obtained loans by mortgaging to the Rajahmundry land Mortgage Bank and Raghavapuram Co-Operative Bank. We will discharge the above debts and evidencing the said discharge of debts, we will handover the vouchers to you.
16. It is evident from the above preamble of the agreement-Ex.A1 itself that the defendants have decided to sell the suit schedule property for the purpose of clearing the bank loans and for meeting the agricultural and domestic expenses. The parties were, therefore, well aware that the loans and debts exist on the suit schedule property which is specifically mentioned in the note after schedule-II of the agreement of sale-Ex.A1 which is extracted above and the parties were also aware that the defendants have to discharge the loans and debts and to meet the agricultural and domestic expenses, which is the purpose for which the suit schedule property was agreed to be sold to the plaintiff. The agreement of sale-Ex.A1, even according to the plaintiff, specifically stipulates the date i.e., 27.2.1985 and on or before which date the balance of sale consideration was required to be paid. It is significant to notice that the parties intended and fixed the said date for payment of balance of sale consideration keeping in view the indebtedness of the defendants. It is also significant to notice that it is not stipulated under Ex.A1 that the registration as well as delivery of possession would be simultaneous with the payment of balance of sale consideration, as we normally find in agreements. From a reading of Ex.A1, it is not, therefore, as if that payment of balance of sale consideration and the registration of document are to be simultaneous obligations required to be discharged by both the parties. Further a reading of note appended to schedule-II of the agreement of sale-Ex.A1 makes it clear that the defendants who had obtained the loan from Land Mortgage Bank and Raghavapuram Co-Operative Bank have to discharge the debts and have to deliver the vouchers to the plaintiff evidencing the discharge of the debts. If really the intention of the parties was to complete clearance of all debts before the registration, it could have been specifically provided for in the agreement of sale-Ex.A1 that the said vouchers are to be delivered at the time of registration of sale deed. No doubt the defendants undertook to deliver the discharge vouchers, but that does not necessarily mean that they have to deliver the said vouchers at the time of registration. The interpretation of Ex.A1 at the time when it was executed has to be in accordance with the intention of the parties at the time of execution without adding to or subtracting any clause from the terms of the agreement agreed upon between the parties. It is, therefore, not permissible to read a clause which is not found in Ex.A1 nor is it permissible to construe the said agreement in terms of the events which have happened subsequently. The interpretation of Ex.A1, therefore, prima facie supports the contention of the defendants that without payment of balance of sale consideration, they were not in a position to discharge the debts and as such insistence by the plaintiff for clearance of the debts before the execution of sale deed could not have been contemplated under Ex.A1 If the parties really intended, as claimed by the plaintiff, Ex.A1 could have easily been drafted in that manner and could have provided for the said understanding between the parties as contended by the plaintiff.
17. Now in the light of the above, if we examine the evidence on the part of the plaintiff, the following relevant extracts also throw sufficient light on the intention of the parties at the time of Ex.A1. In the present case the plaintiff has not entered into witness box and her husband was examined as P. W. 1. He claims that he was present at the time of execution of agreement. According to his chief-examination, the defendants have to produce the discharge vouchers of encumbrances as per the terms of the agreement and the suit property has to be delivered before 27.2.1985 after receiving the balance of sale consideration. He further states that the defendants have to keep all the trees intact in the suit schedule property up to the time of registration and they have to clear all the encumbrance including the loan to Co-Operative Bank and deliver possession. It is significant to notice that all the averments made by P.W.1 were made as if 'he' is the plaintiff and he says that 'he' is ready with the balance of sale consideration. He states that 'he' had purchased non-judicial stamps and 'he' requested the defendants 1 and 2 to execute sale deed and 'he' got issued a telegraphic notice to the defendants etc. The distinction between the plaintiff and her husband is completely obliterated and the husband in the chief examination states, '...I pray to grant decree in 'my' favour for specific performance of contract of sale or in alternatively to pass a decree in 'my' favour for Rs. 68,000/- together with costs and interest.' While it is permissible that the plaintiff may nominate her husband to obtain sale deed in his name, but neither in the plaint nor in the evidence there is any indication as to why P. W. 1 is seeking for himself the specific performance of suit agreement which is in favour of the plaintiff. Further in the cross-examination P.W.1 admits as follows,. It is true that there was no term in Ex.A1 that the defendants have to produce encumbrance certificate and income-tax clearance certificate before the time of registration.' He further says, ...'As per Ex.A1 the defendants agreed to sell the suit schedule properties to discharge their debts in Co-Operative society and other banks and also for family expenses and to meet their agricultural expenses. They intended to sell the suit schedule property as they have no money to discharge their debts. That is why a condition was fixed in Ex.A1 agreement that both of us to perform our contract within such and such a date i.e., 27.2.1985.
18. P.W.2 is the person through whom the bargain is said to have been settled and he signed Ex.A1 as an attester. His statement in cross-examination is as follows,.Defendants 1 and 2 agreed to sell the plaint schedule property to discharge their debts and also for their family necessities. The time limit for 3 months was fixed in Ex.A1 only to discharge the debts of defendants 1 and 2 by not growing the interest on their debts. The defendants have no money with them, unless P.W.1 paid the balance of sale consideration. The defendants 1 and 2 are not in a position to discharge their debts and after payment of their debts only, they can obtain the receipts. At the time of agreement, the defendants 1 and 2 stated that they have debts to a tune of Rs. 1,00,000/- and above...
19. P.W.3 is the scribe of Ex.A1 who claims that he was working as Village Administrative Officer of Sreerangapatnam. He claims in his chief-examination that the defendants 1 and 2 gave instructions to scribe Ex.A1 and as per Ex.A1, the defendants 1 and 2 have to discharge their debts including the land Mortgage Bank debt and they have to give vouchers to the plaintiff at the time of registration of sale deed. He also admits in his cross-examination,.Both the parties agreed for the terms of Ex.A1. It is true that the defendants 1 and 2 sold their land in view of discharge of their debts. The time is essence of the contract as per Ex.A1. The intention of the parties to specify the date in Ex.A1 only to reduce the interest for their debts. The purchaser has to pay the balance of sale consideration within the stipulated date. The defendants 1 and 2 have to discharge their debts within the stipulated time.
(emphasis supplied)
20. The above evidence on the part of the plaintiff, particularly PWs 2 and 3 who are attester and scribe, clearly established that the entire transaction was entered into to enable the defendants to discharge their debts and the time stipulated in Ex.A1 was the essence of the contract and it was so stipulated only to ensure that the defendants would discharge the debts on or before 27.2.1985 and the liability of the interest on the defendants is minimized. PWs 1 to 3 further unequivocally say that the defendants had no means to discharge the debts and the suit transaction was entered into only with a view to raise the monies for discharge of the debts. The plaintiff, therefore, was very well aware of the financial position of the defendants and also the intention behind the execution of Ex.A1. It was, therefore, not open for the plaintiff to contend or claim that even before the balance of sale consideration is paid by the plaintiff, the defendants must discharge the debts and keep the discharge vouchers ready for handing over to plaintiff. On their own showing the plaintiff was specifically aware of the inability of the defendants to discharge the debts, unless they receive the balance of sale consideration. The very statement made by the plaintiff in the notices Exs.A2, A3 and A6 as well as the basic contention in the plaint, therefore, does not support the case of the plaintiff in the light of Ex.A1 and the evidence of PWs 1 to 3. Admittedly the plaintiff has not moved in the matter till night preceding the last day when she issued Ex.A2-telegraphic notice at 8.45 P.M. on 26.8.1985. Even the said telegraphic notice states,.In spite of requests you have not cleared the encumbrance on the land and execute sale deed. My client requests you to clear encumbrance on land obtain income tax clearance certificate, execute sale deed within a week, else my client seeks his remedy in a court of law....
21. Thereafter in all the subsequent notices i.e., Ex.A3 dated 21.3.1986 as well as Ex.A6 dated 18.12.1986 which preceded the filing of the suit, the plaintiff consistently demanded the defendants to clear the encumbrance first and so also the plaint allegations in the suit which was filed on 16.11.1987. The aforesaid plea of the plaintiff, therefore, having not been supported by Ex.A1 and by the evidence of PWs 1 to 3 themselves, I agree with the contention of the defendants that as per the true interpretation of Ex.A1, the due date fixed by the parties in Ex.A1 was merely for payment of balance of sale consideration and the registration and handing over of possession was to follow later. The finding of the trial Court in this respect requires no interference. The point No. 1 is, therefore, answered accordingly against the plaintiff.
22. With respect to second point, to appreciate the contention of breach of contract made by the plaintiff against the defendants and vice versa, it is to be seen whether the plaintiff has established that she was ready and willing to pay the balance of sale consideration and made efforts to pay the same to the defendants before the due date. The plaint allegations in clause No. 7 of para-3 itself the plaintiff states that the time is the essence of contract. Further clause Nos. 1 to 6 of para-1 of the plaint mention that the defendants have to produce income tax clearance certificate, that the registration of sale deed has to be executed on or before 27.2.1985, that the defendants have to give vacant possession of the suit schedule property at the time of execution of registered sale deed, that the defendants shall keep all the trees intact in the suit schedule property and that the defendants shall submit the vouchers evidencing discharge of debt along with sale deed etc. are not found in Ex.A1 itself. Several terms and conditions as above which the plaintiff claims to be the part of the bargain are, in fact, not found in Ex.A1 and as such it cannot be presumed that all those conditions form part of Ex.A1. Admittedly there is no evidence that the plaintiff paid further amount of Rs. 3,000/- on 24.12.1984, as even according to the plaint allegations, there was neither any receipt nor any endorsement on Ex.A1 evidencing the same. Further the evidence of PWs 1 to 3 which is extracted above clearly shows that the parties had intended and fixed the time limit for the plaintiff to pay the balance of sale consideration. In fact, P.W.3 himself, who is the scribe and who claims to have scribed Ex.A1 on the instructions of the defendants, says that the time is the essence of the contract and the date was specified in Ex.A1 only to reduce the interest on the debts. As referred to above, the first act of the plaintiff in pursuance of Ex.A1 was only under Ex.A2-telegraphic notice issued at 8.25 P.M. on 26.2.1985 i.e., in the evening prior to the due date. Even Ex.A2 is not unequivocal and it put several pre-conditions for payment of balance of sale consideration. Leaving aside the controversy whether Ex.A2 was replied to by the defendants or not, further notices of the plaintiff i.e. Exs.A3 and A6, dated 21.3.1986 and 18.12.1986 respectively, show that the plaintiff is consistently requiring the defendants to fulfill the pre-conditions before she could pay the balance of sale consideration which itself is contrary to Ex.A1. It cannot, therefore, be said that breach of Ex.A1 is not committed by the plaintiff as she is responsible for going back on the essence and the stipulations in Ex.A1.
23. The defendants have examined D.Ws. 1 to 13 and marked B series and X series documents to show that they were heavily and seriously indebted. Keeping in view the fact that the indebtedness of the defendants being not in dispute, it is not necessary to deal with the said evidence in detail.
24. It is also necessary to deal with one of the contentions of the defendants that the claim of the plaintiff amounts to complete variation of the contract-Ex.A1. The claim of the plaintiff that encumbrance has to be cleared first and the income tax clearance certificate has to be obtained before the plaintiff could pay the balance of sale consideration etc. is not provided for under Ex.A1 nor it is provided for as to how many number of trees are existing on the suit property and nor the stipulation that the defendants have to protect and keep all the trees intact etc. The claim for damages on the ground that the defendants have allegedly removed the trees etc. is not supported by any evidence, as was found by the trial Court. The claim of the plaintiff in Ex.A3, dated 21.3.1986 is for the aforesaid damages and further it is claimed that the amount of damages is deductible from the balance of sale consideration payable. The plaint allegations also reiterate the same specifically in para-7. Allowing the said deductions and offering to obtain sale deed only by paying the balance of sale consideration is totally beyond Ex.A1. The claim of the plaintiff, on such allegations, therefore, amounts to complete variation of Ex.A1 and is not permissible for the court to accept the said contention, as it would amount to varying Ex.A1 unilaterally. It is also significant to notice that in spite of expiry of the time fixed under Ex.A1, the defendants in their reply-Ex.A7 have again shown their inclination to discharge their obligations under Ex.A1 and called upon the plaintiff to pay the balance of sale consideration. No doubt, the defendants demanded interest for the delay which is not permissible in terms of Ex.A1. However, in order to show that the plaintiff is ready and willing and anxious to obtain sale deed, no evidence is forthcoming from the plaintiff as to whether she has offered the balance of sale consideration to the defendants at least. The conduct of the plaintiff shows that she has not moved in the matter after receiving Ex.A7-reply of January, 1987 till the filing of the suit on the last date of limitation on 16.11.1987. The said conduct of the plaintiff, therefore, has to be taken into consideration in considering the aspect of breach of contract and discharge of mutual obligations under Ex.As1 as alleged by the plaintiff against the defendants and vice versa. This point is, therefore, answered against the plaintiff.
25. Another aspect regarding readiness and willingness of the plaintiff has to be examined in terms of Section 16(b) and (c) of the Specific Relief Act. As per the evidence of P.W.1, he claims that he is working as Dental Surgeon at Rajahmundry and the plaintiff is his wife. To show his financial condition, he has filed Ex.A8-current bank account of Indian Overseas Bank to show that the plaintiff is having Rs. 60,000/- in the bank during February, 1985. He has also filed Ex.A9-xerox copy of his pension pass book to show that on superannuation P.W.1 got benefits i.e., gratuity of Rs. 31,166-65 ps. and Rs. 42,244/- towards commuted value of pension. Ex.A8-current account statement shows balance of Rs. 60,399-83 ps as on 13.2.1985. Thereafter, there were withdrawals on 13.2.1985, 19.2.1985, 25.2.1985 for Rs. 20,000/-, Rs. 2,000/- and Rs. 25,000/- respectively which would show that a total amount of Rs. 47,000/- was withdrawn out of Rs. 60,399/-. Further the entry on 26.2.1985 shows that an amount of Rs. 20,000/- was deposited, which even if taken into consideration, P.W.1 was having Rs. 33,399/- in his account. Ex.A9 which is the pension book of P.W.1 does not show the amount of gratuity and commuted pension as spoken to by P.W.1, presumably as original was returned back and the xerox copy of the pension pass book was marked as Ex.P9. However, Ex.P9 does not support the availability of funds and is merely a pass book showing that Rs. 790/- and odd per month is being deposited in the account. However, even assuming that the plaintiff had the sufficient funds to pay the balance of sale consideration before the stipulated date, mere availability of funds is not sufficient to establish the readiness and willingness as the plaintiff must establish that she is not only ready with the money, but is willing to pay also. So the plaintiff being ready with the cash is not sufficient unless she is willing to pay also. The willingness on the part of the plaintiff to pay balance of sale consideration must be established and proved by the plaintiff in order to succeed on that aspect in a suit of this nature. As discussed above, the plaintiff is obviously not willing to pay the balance of sale consideration unless her pre-conditions are met by the defendants and as already held above, the pre-conditions demanded by the plaintiff being contrary to Ex.A1, it has to be concluded that the plaintiff has not established her readiness and willingness as required under Section 16 (b) and (c) of the Specific Relief Act read with explanation (2) thereof.}
26. The last aspect with respect to discretion under Section 20 of the Specific Relief Act is also necessary to be discussed. It is evident from the discussion made above that the terms of Ex.A1 were not followed in letter and spirit by the plaintiff. The fact that the plaintiff has not been examined also is relevant consideration especially in view of understanding and interpretation of Ex.A1 being in issue and secondly, the specific stand of P.W.1, as noticed at the beginning of this judgment, that he is seeking a specific performance in his own name and in fact all the allegations and averments are with respect to P.W.1. Further it is also found that the very contract-Ex.A1 was entered into to enable the defendants to discharge their debts and minimize the interest burden, and therefore, the date for payment of balance of sale consideration was fixed. On account of the plaintiff not discharging her obligation, obviously the interest burden of the defendants, which was intended to be reduced, must have consequentially increased. However, the plaintiff has waited for the last day before the due date to issue the first notice-Ex.A2 and thereafter has waited for the last day of limitation before filing of the suit. Ex.A1 which is dated 17.11.1984, therefore, is sought to be specifically enforced in the suit almost three years thereafter. P.W.2 who is said to have settled the bargain was examined on 12.8.1997 i.e., by then 13 years have gone bye from the date of execution of Ex.A1. He admits in his evidence that the rates in his area were Rs. 50,000/- to Rs. 60,000/- per acre for dry land and Rs. 1,00,000/- per acre for wet land and in fact a suggestion was given to him that prevailing rates for dry land was Rs. 75,000/- per acre and Rs. 1,30,000/- per acre for wet land. The bargain under Ex.A1 was at the rate of Rs. l1,200/- per acre. Thus keeping in view the ratio laid down by the Supreme Court in K.S. Vidyanadam and Ors. v. Vairavan (supra) (which related to urban properties) and the said ratio applied by this Court by a learned single Judge of this Court Penumatsa Narasimha Raju v. Valluri Jaya Prakasa Babu (supra) (to agricultural property) coupled with the fact that the debts of the defendants incurring further interest burden after the due date of 27.2.1985 and the same has occasioned only on account of the default on the part of the plaintiff in paying the balance of sale consideration. It would be useful to refer to a decision of the Privy Council reported in Babu Bindeshri Parshad v. Mahant Jairam Gir 1887 (16) I. A. 173 wherein an appeal which came up before the Privy Council arose out of an agreement of sale which was settled for Rs. l 0,075/- and out of which, Rs. 200/- was received as earnest money and balance of Rs. 9,875/- was payable within fifteen days. However, the plaintiff insisted upon having the sale deed with the warranty of title and on that ground, he withheld the payment of balance of sale consideration. His suit for specific performance was dismissed by the trial court and the High Court affirmed the said decree. The matter went to the Privy Council wherein it was held as under,
That he (the plaintiff) was insisting upon having that which he had no right to have, and he delayed performing his part of the agreement for the payment of the purchase-money on that account. Under such circumstances as these, it certainly is not a case in which it would be right for this Committee to advise Her Majesty to make any decree for specific performance.
27. The above position of law aptly applies to the case on hand. The readiness and willingness on the part of the plaintiff must be established and the readiness and willingness on his part is required to be shown not only throughout the subsistence of the contract, but also throughout the pendency of the suit. In Aniglase Yohannan v. Ramlatha and Ors. AIR 2005 SUPREME COURT 3503 the Supreme Court has considered several decisions on the point under Section 16(c) of the Specific Relief Act. Keeping in mind the above principles, therefore, it has to be answered that it is not a fit case to exercise discretion in favour of the plaintiff.
28. The plaintiff is also unable to substantiate her claims that she paid a further amount of Rs. 3,000/- on 24.12.1984 and she spent Rs. 1,000/- on spraying pesticides and that she is entitled to damages of Rs. 36,000/-. Apart from that, she has not substantiated her claim to the extent of damages that she paid Rs. 3,000/- towards part of sale consideration to the defendants on 24.12.1984 and it amounts to making a false claim. In a suit for specific performance the conduct of the plaintiff both before and after the suit agreement being extremely important and vital, the aforesaid conduct of the plaintiff in making a false claim of payment of Rs. 3,000/- to the defendants as part of the sale consideration also weighs against the plaintiff. Even after receiving Ex.A7-reply from the defendants showing their willingness to execute a registered sale deed, the plaintiffs conduct does not show that she has taken any steps towards discharge of her obligations. The overall conduct of the plaintiff, therefore, clearly established that she is not entitled for exercise of discretion in her favour.
29. All the said issues having been decided against the plaintiff, the appeal is liable to be dismissed and it is accordingly dismissed with costs.
30. CMP No. 524 of 2007:
The admissibility of the document sought to be produced as additional evidence is already discussed in paragraph-9 above. In the circumstances, therefore, I am not inclined to accept the said application and as such this application is dismissed. The Registry is directed to return the document filed along with this application to the appellant.