B.R. Madhusudhan Rao, J.

1. This Memorandum of Appeal is filed under Section 96 of the Civil Procedure Code, 1908 (for short ‘CPC’) assailing the judgment and decree passed by the learned IV Additional District Judge, Ranga Reddy in OS No.183 of 2005, dated 28.02.2009.

2.1. Appellant counsel submits that respondent No.3 is a formal party in the Appeal.

               2.2. Suit against respondent No.3-defendant No.3 is dismissed for default on 14.11.2005 for non-payment of process.

3. Appellant is the plaintiff and respondents are the defendants. For the sake of convenience, respondent Nos.1 and 2 - defendant Nos.1 and 2 are herein after referred to as respondents-defendants.

4.1. The case of the appellant-plaintiff is that he has entered into Agreement of Sale with (1) Ravula Devamma (2) R.Sadanand (3) R.Krishna and R.Suresh Kumar (respondent No.1-defendant No.1) to purchase the land to an extent of Acs.3-21 gts., in Sy.Nos.31, 36, 67 and 68 part situated at Nagole Village, Uppal Revenue Mandal, Ranga Reddy District with specific boundaries for a total sale consideration of Rs.50,23,125/- and entered into agreement on 28.11.1999. On the date of agreement, appellant-plaintiff paid an amount of Rs.3,50,000/- as advance and the balance amount has to be paid by way of three installments within 19 months from the date of agreement. First installment has to be paid within seven months from the date of agreement (28.11.1999) remaining two installments have to be paid for every six months. The payments are subject to availability of land on the ground and survey has to be conducted which is liable for exclusion in calculating 19 months period. As per the agreement dated 28.11.1999, appellant-plaintiff is authorised to demarcate the schedule property into residential plots for which the vendors agreed to deliver the peaceful possession of the property. Appellant-plaintiff has purchased neighbouring properties to an extent of Ac.12-00 guntas by way of agreements. Subsequently, the property was measured and the land available is Acs.03-14 gts., boundaries were fixed (suit schedule property). Memorandum of Understanding is executed between the parties on 07.08.2000 to that effect. In the month of December, 2000 when the appellant-plaintiff proceeded for development of the suit property into plots, the neighbouring owners raised objections and he informed the same to the respondents-defendants. Respondents-defendants sought time to resolve the disputes. Appellant-plaintiff spent huge amount for the purpose of development of the property i.e., leveling the land, laying of roads, and errection of electricity poles. Appellant-plaintiff has paid different amounts on different intervals till 28.08.2002 in favour of respondent No.1-defendant No.1 and his brother Krishna. Respondent No.1-defendant No.1 received the amounts after the death of his mother (R.Devamma) and brother (R.Krishna). Respondents-defendants developed evil thoughts and started evading the appellant-plaintiff. Respondent No.3-defendant No.3 executed registered GPA cum agreement of sale with possession of his 1/3rd undivided share in Sy.Nos.31, 36, 67 and 68 (part) in the name of nominee of the appellant-plaintiff on 02.06.2001.

               4.2. In the last week of January, 2003 appellant-plaintiff approached the respondents-defendants with balance sale consideration of Rs.6,34,166/- after deducting an amount of Rs.25,48,334/- already paid and executed sale deeds in his favour in respect of the remaining extent excluding 1/3rd share of respondent No.3-defendant No.3 after resolving the disputes with the neighbours on which the respondents-defendants requested one year time in view of personal problem.
After one year, appellant-plaintiff approached the respondents-defendants to execute the Sale Deed but they avoided the same. Respondent No.1-defendant No.1 after the death of his brother Krishna informed the appellant- plaintiff that the name of Krishna’s wife is Rajamani and furnished wrong address. Appellant-plaintiff got issued a legal notice on 21.03.2005 to the respondent No.1-defendant No.1 and Rajamani calling upon them to receive the balance sale consideration and execute register sale deeds against their share. Respondent No.1-defendant No.1 managed the postal authorities and got returned the notice. On enquiry by the appellant-plaintiff, it is revealed that the name of Krishna’s wife is Prameela and not Rajamani and prayed to decree the suit.

5. The prayer in the suit is to direct respondents-defendants to execute registered Sale Deed in respect of plaint schedule property, in default the same may be executed through the Court and in alternate sought for the relief of recovery of an amount of Rs.25,48,334/- from the respondents-defendants.

6. Respondents-defendants have filed their common written statement and admitted the execution of agreement dated 28.11.1999 and receipt of payments of Rs.6,75,000 /-, Rs.12,67,555/-, Rs.9,52,500/- and they denied that the appellant-plaintiff has spent huge amount for development of the land. Appellant-plaintiff was never willing to pay the balance sale consideration, whenever respondent No.1-defendant No.1 and his brother approached the appellant-plaintiff to pay the installments promptly, he used to delay the payments and they have received an amount of Rs.3,65,000/- after last date of installment i.e., 07.03.2002 in between 15.03.2002 to 23.08.2002 under protest and the last date of payment is expired. Appellant-plaintiff did not approach the Court with clean hands and suppressed the fact and he is not entitled for the suit relief.

7. The learned trial Court has framed the following issues:

               1. Whether the plaintiff is entitled for specific performance of agreement of sale dated 28.11.1999 followed by memorandum of understanding dated 07.08.2000?

               2. Whether the plaintiff is ready and willing to perform his part of contract?

               3. Whether time is the essence of contract?

               4. To what relief?

8. It is to be noted here that the learned trial Court has not framed issue with regard to the alternate prayer made by the appellant-plaintiff for recovery of Rs.25,48,334/-.

9. Appellant-plaintiff is examined as PW.1 and got marked Exs.A1 to A32. Respondent No.1 is examined as DW.1 and no documents are marked.

10. The learned trial Court after analysing the evidence adduced by the parties coupled with the documents marked thereon held that the appellant-plaintiff is not entitled for relief of specific performance of Agreement of Sale dated 28.11.1999 and directed respondents - defendants to return the advance amount of Rs.25,40,000/- to the appellant-plaintiff on or before 28.05.2009, on failing to do so they are liable to pay simple interest @ 6% per annum from 29.05.2009 till realisation.

11. Learned counsel for the appellant-plaintiff submits that the learned trial Court ought to have seen that the respondents- defendants have received part sale consideration amounts beyond stipulated time under Ex.A1 without any protest. The remaining amount payable by the appellant-plaintiff is only Rs.6,34,166/- out of the total sale consideration of Rs.47,73,750/-. The learned trial Court ought to have seen that respondent No.3-defendant No.3 has already transferred his 1/3rd undivided share to the appellant-plaintiff under Ex.A31 agreement cum GPA and hence the suit for specific performance should have been decreed. The learned trial Court erred in holding that the appellant-plaintiff defaulted in payment of balance sale consideration, gave a finding that respondents-defendants received the part sale consideration amounts beyond the stipulated time under Ex.A1 without any protest. Though the appellant-plaintiff has developed the property and plots were laid out, he was unable to sell major part of the land due to disputes with the neighbours. Respondents-defendants having received substantial sale consideration and put the appellant-plaintiff in possession of the suit schedule property, refusal to grant specific performance would cause hardship to him and the learned trial Court should have granted the equitable relief of specific performance. Appellant-plaintiff has sold an extent of 2,477 square yards under 13 registered Sale Deeds, the area covered with the above said Sale Deeds along with abutting roads admeasuring 3,500 square yards. The entire suit schedule property was developed under layout by the appellant-plaintiff. Counsel to substantiate his contention, has relied on the decisions in the cases of (1) Indira Kaur (Smt.) Vs. Sheo Lal Kapoor ((1988) 2 SCC 488) (2) Chand Rani (smt.) (Dead) by LRs. Vs. Kamal Rani (Smt.) (Dead) by LRs. ((1993) 1 SCC 519 (Constitution Bench)). (3) Balasaheb Dayandeo Naik (Dead) through LRs and Others Vs. Appasaheb Dattatraya Pawar ((2008) 4 SCC 464) (4) A.Kanthamani Vs. Nasreen Ahmed ((2017) 4 SCC 654).

12. Learned counsel for respondents – defendants submits that in pursuance of the judgment and decree dated 28.02.2009 they have deposited the amount, there is no pleading how much has been invested by the appellant- plaintiff and the balance amount to be paid by the appellant-plaintiff is Rs.8,57,500/- to respondents-defendants. Appellant-plaintiff has failed to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract under Section 16 (c) of the Specific Relief Act and the learned trial Court has rightly exercised its jurisdiction under Section 20 of the said Act in granting alternate relief by rejecting the specific performance of contract. Counsel to substantiate his contention, has relied on the decisions in the cases of (1) Saradamani Kandappan Vs. S.Rajalakshmi and Others (2011 AIR SC 3234). (2) Union of India Vs. Ibrahim Uddin and another (2012 (8) SCC 148) (3) Kamal Kumar Vs. Premlata Joshi and Others (2019 (1) ALT 30), (4) Pydi Ramana @ Ramulu Vs. Davarasety Manmadha Rao (2024 INSC 507).

13. Learned counsel for the appellant-plaintiff has filed Synopsis in support of his contention.

14. Heard learned counsel on record, perused the material.

15. Now the point for consideration are :

               (i) Whether the appellant-plaintiff has performed his part of contract, if so? Whether he is entitled for specific performance of agreement of sale dated 28.11.1999?

               (ii) Whether the judgment and decree passed by the learned trial Court suffers from any perversity or illegality? if so, does it require interference of this Court?

16.1. While the Appeal was pending, appellant-plaintiff has filed IA.No.1 of 2022 under Order 41 Rule 27 r/w Section 151 CPC to receive 15 Sale Deeds and the layout plan as additional evidence and mark the same as exhibits.

               16.2. It is stated in the affidavit that DW.1 admitted that his elder brother has executed agreement cum GPA in favour of appellant-plaintiff nominee under Ex.A31, in the course of development according to him, there was shortage of land and the net land available was Acs.03.14 gts, He carved out plots and in terms of the Agreement of Sale with the respondents-defendants, they have sold and got executed total 15 Sale Deeds in favour of prospective purchasers for 14 plots covering an area of 3,170 square yards after plotting i.e., after deducting common areas, roads etc., and the appellant-petitioner also entered into agreement of sale with various third parties for the remaining land. The sale deeds were actually executed by the respondents-defendants which clearly shows that there is part performance of Agreement of Sale not only in terms of delivery of possession but also creation of third party interest. The Sale Deeds along with the layout plan are crucial documents in support of the case and due to lack of experience, he could not convey the same to his counsel and the delay in filing the Sale Deeds is neither wanton nor intentional and prayed to receive the same.

17. Respondents-defendants have filed their counter in IA No.1 of 2022 contending that receiving the documents at belated stage may tantamount to reopening the whole case a fresh diluting the Appeal process which is neither necessary nor proper in deciding the present case.

18. The documents which are filed along with IA No.1 of 2022 are certified copies of registered Sale Deeds pertaining to the year 2001. Appellant-plaintiff has filed the suit on 22.07.2005 and it was numbered on 25.07.2005, chief affidavit of PW.1 is filed on 22.08.2007 and evidence of the parties concluded thereafter suit came to be disposed on 28.02.2009.

19. Order 41 Rule 27 of CPC deals with production of additional evidence in appellate Court : 1(aa) states that the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or; (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. The Appellate Court may allow such evidence or document to be produced, or witness to be examined.

20. In Ibrahim Uddin, the Supreme Court held that “the general principle is that the appellate Court should not travel outside the record of the lower Court and cannot take any evidence in Appeal, however as an exception.

21. The affidavit is bereft of material particulars about the diligence of the appellant-plaintiff in filing IA.No.1 of 2022. There was an ample opportunity to the appellant-plaintiff to place the said documents before the learned trial Court but having failed to do so came up with the present application in the Appeal in the year 2022 by filing the IA. The appellate Court may permit additional evidence only if the conditions laid down in Order 41 Rule 27 are found to exist. The appellant-plaintiff has not made out any case to receive the documents at the appellate stage hence, IA.No.1 of 2022 is dismissed.

22.1. Ex.A1-Agreement of Sale dated 28.11.1999 is executed by R.Devamma (2) R.Sadanand (respondent No.3-defendant No.3), R.Krishna, R.Suresh Kumar (respondent No.1-defendant No.1) in favour of the appellant-plaintiff.

               22.2. The recitals of the agreement goes to show that Rs.14,25,000/- is fixed per acre and the total sale consideration is Rs.50,23,125/-. On 28.11.1999, Rs.3,50,000/- is paid by the appellant-plaintiff as advance amount and the balance sale consideration amount of Rs.46,73,125/- has to be paid within a period of 19 months as per the actual measurement at site from the date of agreement of sale (28.11.1999) in three equal installments. First installment has to be paid on or before seven months and remaining two installments are to be paid for every six months.

               22.3. Vendors have agreed to deliver the physical possession of the said property to develop the roads, leveling for marking the plots after the agreement. Vendors agreed to register the said property in favour of Vendee or his nominees plot wise, whole or part wise to the third party or to any individuals by receiving the sale consideration amounts within the stipulated period of 19 months.

               22.4. If the vendee fails to pay the entire balance amount within the time stipulated, he is liable to pay interest @ 12% per annum on the outstanding amount for the delay period.

               22.5. The schedule property is Acs.03-21 gts in Sy.Nos.31, 36, 67 and 68 parts situated at Nagole Village, Uppal Mandal, Ranga Reddy District with specific boundaries.

23. Ex.A2 is the Memorandum of Understanding dated 07.08.2000 executed by the same parties in favour of the appellant-plaintiff. The contents goes to show that after measurement of the land an extent of Acs.03.14 gts is available instead of Acs.03.21 gts and the vendee (appellant-plaintiff) is liable to pay an amount of Rs.47,73,750/- for Acs.03-14 gts @ Rs.14,25,000/- per acre.

24. As per Ex.A2 the total sale consideration for Acs.03.14 gts is Rs.47,73,750/- from which Rs.3,50,000/- has to be deducted which is paid on the date of Ex.A1 - Agreement of Sale dated 28.11.1999. The balance amount is Rs.44,23,750/- which has to be paid in terms of Ex.A1. Exs.A3 to A23 and A32 goes to show the payments made by the appellant-plaintiff to R.Devamma, R.Krishna and respondent No.1-defendant No.1. Payment receipts does not show that the amounts are received under protest.

25. Section 16 of Specific Relief Act, 1963 deals with Personal bars to relief: Specific performance of a contract cannot be enforced in favour of a person -

               a)

               b)

               (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant.

               Explanation :- For the purposes of caluse (c) :

               (i) Where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court;

               (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.

26. Section 20 of Specific Relief Act, 1963 deals with Discretion as to decreeing specific performance:-

               (1) The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so, but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of Appeal.

               (2) The following are cases in which the Court may properly exercise discretion not to decree specific performance: -

               (a) Where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or

               (b) Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or

               (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it equitable to enforce specific performance.

               Explanation 1 : - Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning or clause (a) or hardhip within the meaning of clause (b).

               Explanation 2 : - The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.

               (3) The Court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

               (4) The Court shall not refuse to any part specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party.

27. Chapter 4 of the Specific Relief Act, 1963, deals with recession of contract. Section 27 deals with where recession may be adjudged or refused.

28. The evidence of the appellant-plaintiff as PW.1 is the same with that of his plaint averments. In his cross-examination he stated that he do not remember whether he has paid the first installment amount on or before the completion of seventh month as agreed in Ex.A1. As per Ex.A1-Agreement he has to pay the first installment lumpsum but as per the request of the vendors he has paid first installment in part as and when required by the vendors. Subsequent to Ex.A1-Agreement, schedule property was surveyed in the presence of the vendors by the surveyor and he found that the property available on the ground is Acs.03.14 gts. The vendors have not raised any objection for the survey. They have not incorporated any other terms in relation to payment schedule in Ex.A1, there was no oral understanding also about the payment schedule at the time of entering into Ex.A1. When he was putting the stones for plotting, the neighbouring owners objected and removed the stones, he complained to the vendors and they represented that they would talk to the neighbouring owners and resolve the problem. Reddy people are having property on one side and Yadav people are having property on the other side, he has not verified their names. Respondent No.1-defendant No.1 has informed him that his brother Krishna Yadav died and requested time for one year to execute registered Sale Deed, he also informed him that the property was not mutated in the name of the wife of the deceased Krishna, after mutating the same, they would register the Sale Deed. He has not mentioned the said fact in the plaint as well as in the chief affidavit. PW.1 denied the suggestion that he has not shown his readiness and willingness in performing his part of contract and did not pay the installments within the stipulated time as mentioned in Ex.A1- Agreement therefore he is not entitled for specific performance of contract.

29. The evidence of the respondent No.1-defendant No.1 as DW.1 is the replica of his written statement. In his cross-examination, he stated that Ravula Krishna who is another elder brother died about three years back and at present he has no idea about the quantum of amount received by him from the appellant-plaintiff and the balance amount to be paid, so also he do not know what is the amount taken by his brother Krishna and his wife from the appellant-plaintiff and the amount to be paid towards their share. He do not know whether the appellant-plaintiff has purchased Acs.08.26 gts of property situated adjacent to the suit property. Appellant-plaintiff has spent huge amount to lay roads, drains, erection of electric poles in the suit schedule property. Ravula Sadanand Yadav is his elder brother and he is eldest among all and he executed another agreement cum GPA in favour of the appellant-plaintiff's nominees. After measuring the property they have entered into Ex.A2 - Memorandum of Understanding. In the month of December when the appellant-plaintiff went to the suit schedule property with an intention to develop the land, the neighbouring land owners obstructed him and he informed the same to them. Appellant-plaintiff has paid Rs.50,000/- on 20.02.2001, Rs.50,000/- on 11.04.2001. DW.1 denied the suggestion that he has received Rs.13,06,667/- from the appellant-plaintiff. Witness adds that he has received only Rs.8 Lakhs and also denied the suggestion that his brother Krishna received Rs.12,51,667/- and not Rs.9,52,500/- as stated in the chief affidavit. He also denied the suggestion that he received Rs.10,000/- under Ex.A10 from Parvathalu and the amount payable to him is only Rs.2,36,249/-. Witness adds that the amount payable to him is more than the above said amount. He do not know whether the appellant-plaintiff paid Rs.12,51,667/- to his brother and his wife. He denied the suggestion that as they were not willing to perform the part of contract, appellant-plaintiff has issued legal notice on 21.03.2005 and also denied the suggestion that appellant-plaintiff paid the amount in time as agreed and he is ready to pay the balance sale consideration.

30. After conclusion of the cross-examination of DW.1, learned counsel for the respondents-defendants sought to re-examine the witness. The learned trial Court vide separate order dated 20.10.2008 has rejected the submission of the respondent counsel before the trial Court to re-examine DW.1.

30.1. In Indira Kaur, the Supreme Court observed that “The law is well settled that in transactions of sale of immovable properties time is not the essence of the contract”.

               30.2. In Chand Rani (Constitution Bench), the Supreme Court held that “As a general proposition of Law, in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are evident:

               (i) From the express terms of the contract;

               (ii) From the nature of the property; and

               (iii) From the surrounding circumstances, for example: the object of making the contract.

               The same view is followed in Balasaheb Dayandeo Naik.

               30.3. In A.Kanthamani, the Supreme Court observed at Para No.32.3 that “the plaintiff proved her readiness and willingness to perform her part of the agreement and also proved her financial capacity to purchase the suit property by adducing adequate evidence”.

31. It is the specific case of the appellant-plaintiff in Para 5 of the plaint that in the month of December, 2000 when he proceeded for development to bifurcate the schedule property into plots, objections were raised from the adjacent land owners and he informed the respondents-defendants for which they have sought time for resolving the dispute. Ex.A31 is the registered Agreement of Sale cum General Power of Attorney with possession executed by respondent No.3- defendant No.3 in favour of the nominee of the appellant-plaintiff. The schedule of the property is “All that the piece and parcel of 1/3rd share holder of Plot Nos.3-17, 19-29, 31, 41, 77-79, 88, 147-151, 153-159 in Sy.Nos.31, 36, 67 and 68 (part) admeasuring 3886.66 Sq. yards out of land admeasuring 11,660 square yards situated at Venkata Ramana Colony, Nagole Village, Uppal Mandal.

32.1. In Saradamani Kandappan, the Supreme Court held that “time for payment of consideration was essence of the contract”

               32.2. In Kamal Kumar, the Supreme Court held at Para No.10 which reads as under:

               “It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; and lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds”.

33.3. In Pydi Ramana @ Ramalu, the Supreme Court held that “as regards, willingness of the plaintiff to perform his part of contract, the conduct of the plaintiff warranting the performance has to be looked into”.

34. Respondents-defendants have admitted in their written statement that the total amount of Rs.12,67,555/- was received by respondent No.1-defendant No.1 inclusive of interest and husband of respondent No.2-defendant No.2 has received an amount of Rs.9,52,500/- inclusive of interest. As per the contents of the written statement, the last date of installment is 07.03.2002 however, the respondents-defendants have received an amount of Rs.3,65,000/- from 15.03.2002 to 23.08.2002. Respondent No.3-defendant No.3 has transferred his 1/3rd share under Ex.A31 dated 02.06.2001 to the nominee of the appellant-plaintiff whose plot numbers are mentioned in para No.31 after Ex.A2 - MOU dated 07.08.2000. The admissions made by DW.1 in his cross-examination support the case of the appellant-plaintiff that he visited the respondents-defendants in the month of December, 2000 and requested them to solve the problem with the neighbours. DW.1 has also admitted in his cross-examination that the appellant- plaintiff has spent huge amounts to lay roads, drains, erection of electric poles in the suit schedule property. Prior to the filing of the suit itself, respondent No.3-defendant No.3 has transferred his 1/3rd share to the nominee of the appellant-plaintiff on 02.06.2001 itself and the respondents-defendants instead of settling the dispute with the neighbouring land owners, postponed the same on one or the other pretext. In Ex.A1, the default clause is if the vendee fails to pay the balance amount within the stipulated time, he is liable to pay interest @ 12% on the outstanding amount for the delay period. The admissions in the written statement goes to show that appellants-defendants have received the amount even after the date of last installment (07.03.2002).

35. In P.Ramasubbamma Vs. V.Vijayalakshmi and Others9, the Supreme Court observed at Para ((2022) 7 SCC 384) which reads as under:

               “Once the execution of agreement to sell and the payment/receipt of advance substantial sale consideration was admitted by the vendor, thereafter nothing further was required to be proved by the plaintiff vendee. Therefore, as such the learned trial court rightly decreed the suit for specific performance of agreement to sell. The High Court was not required to go into the aspect of the execution of the agreement to sell and the payment/receipt of substantial advance sale consideration, once the vendor had specifically admitted the execution of the agreement to sell and receipt of the advance sale consideration; thereafter no further evidence and/or proof was required”.

36. The learned trial Court has not considered the pleadings of the parties in right perspective with that of the admissions made by DW.1 in his cross-examination coupled with the admissions made in the written statement which goes to show that the appellant-plaintiff has paid substantial amount to the respondents-defendants and a pittance is remaining. The learned trial Court has not considered the contentions raised by the parties in proper perspective and erroneously observed in the judgment that the appellant-plaintiff is the defaulter and has not exercised the jurisdiction in a proper manner. The learned trial Court further observed that the conduct of the appellant-plaintiff is not clean and worthy. Therefore, he is not entitled for specific performance of contract. The said observations are perverse and the findings of the learned trial Court in Para Nos.6, 10 and 11 are liable to be set aside.

37. We are of the view that in view of the penalty clause in Ex.A1 that the outstanding balance amount of Rs.6,34,166/- which is to be paid by the appellant-plaintiff to the respondents-defendants has to carry interest @ 12% per annum from the date of issuing the legal notice dated 21.03.2005 (Ex.A26) till the date of deposit before the learned trial Court.

38. Respondents-defendants have deposited the amount before the learned trial Court in pursuance of the judgment and decree dated 28.02.2009, they are at liberty to withdraw the same with accrued interest thereon.

39.1 Respondents-defendants received the amounts beyond the stipulated time in Ex.A1-agreement of sale dated 28.11.1999, hence the decisions cited by the learned counsel for the respondents – defendants in paragraph Nos.32.1 – 32.3 are distinguishable from the facts of the present case and thus the ratio of those cases would not apply in the present case.

               39.2 The decisions cited by the appellant-plaintiff counsel assist his case.

40. We are of the view that the appellant-plaintiff has performed his substantial part of contract and has developed the suit schedule property by laying roads, making out plots. The judgment and decree passed by the learned trial Court suffers from perversity and illegality and the same is liable to be set aside and is accordingly set aside.

41. In the result, AS.No.219 of 2009 is allowed and the Judgment and decree passed by the learned IV Additional District Judge, Ranga Reddy District in OS No.183 of 2005, dated 28.02.2009 is set aside and the suit filed by the appellant-plaintiff is allowed.

               (i) Appellant-plaintiff is hereby directed to deposit the balance amount of Rs.6,34,166/- with interest @ 12% per annum from the date of legal notice dated 21.03.2005 (Ex.A26) till the date of deposit before the learned trial Court within 90 days from the date of this judgment.

               (ii) Respondents-defendants shall execute the registered sale deeds in favour of the appellant-plaintiff or his nominee within 30 days thereafter and they are entitled to receive the amount after execution of sale deed.

               (iii) If the respondents-defendants fails to register the suit schedule property in favour of the appellant-plaintiff or his nominee, he is at liberty to execute the same through the process of law.

               (iv) Respondents-defendants are permitted to withdraw the amount which was deposited by them in pursuance of the judgment and decree dated 28.02.2009 with accrued interest thereon.

42. IA.No.1 of 2022 is dismissed.

Interim orders if any stands vacated, miscellaneous petition/petitions stands closed.