1. The present appeal has been filed by the defendant challenging the judgment and decree in OS.No.299 of 2006 on the file of the Principal District Judge Ranga Reddy District L.B.Nagar, dt.13.04.2010.

2. The parties shall hereinafter be referred to as per their array in the suit for brevity and better understanding of the case.

3. The brief facts of the case are that, admittedly, the defendant is the owner of the property bearing H.No.6-2-107 in Plot No.16 admeasuring 216 sq. yards situated in Sy.No.119 of Sobhana Colony, Balanagar, Ranga Reddy District (hereinafter referred to as ‘suit schedule property’) and that an agreement of sale dt.28.11.2005 was entered into between the plaintiff and defendant for the sale of the suit schedule property by fixing the total sale consideration of Rs.19,50,000/-.

4. The plaintiff would contend that the agreement of sale dt.28.11.2005 contains a payment schedule and the outer limit for payment of the total amount for execution of the sale deed was four months from the date of the said agreement of sale and failing to comply with the payment within the scheduled time of four months, the agreement of sale dt.28.11.2005 stands cancelled. At the foot of the said agreement of sale, a certain payment schedule was written by pen, which is as follows:

               Rs.1,00,000/- received on 28.11.2005

               Rs.3,00,000/- by 20.12.2005

               Rs.5,00,000/- before one month of registration, with which cumulative advance will be Rs.9,00,000/-

5. It is further contended that the plaintiff has accordingly paid Rs.1,00,000/- on 28.11.2005, Rs.1,00,000/- on 19.12.2005, Rs.1,00,000/- on 20.12.2005, and thereafter she paid another sum of Rs.2,00,000/- on 24.12.2005 to the defendant, thereby totalling to Rs.5,00,000/-. Apart from the above payments, the agreement of sale covenants that the plaintiff has to pay the balance sale consideration or the sale transaction has to be completed within four months from 28.11.2005 and the plaintiff has to obtain a regular registered sale deed in her favour and in the event of default of payment of sale consideration by the plaintiff within the outer limit of four months, the transaction stands cancelled and the amount of Rs.50,000/- would be forfeited.

6. The plaintiff further claims that subsequently in the 3rd week of February, 2006, she offered Rs.4,00,000/- as per the terms of the agreement of sale but the defendant had been postponing the matter to receive the said payment amount and ultimately she refused to receive it. It is also the version of the plaintiff that she along with her husband approached the HSBC Bank and obtained of a loan of Rs.14,50,000/- so as to make the money ready to complete the sale transaction, since the time was expiring by 28.03.2006. Thus, it is contended that the plaintiff mobilized the balance sale consideration of Rs.14,50,000/- and approached the defendant on 25.03.2006 and expressed her readiness to pay the said amount and requested to execute the sale deed, but the defendant did not heed to her request the sale transaction which constrained the plaintiff to issue a telegraphic notice on the same day i.e., 25.03.2006 to the defendant informing that she had made all arrangements to pay the balance sale consideration and called upon the defendant to receive the balance sale consideration and to come to the Sub-Registrar Office to execute the sale deed on 27.03.2006 and complete the transaction. Further, it is stated that the defendant agreed to come to the Sub-Registrar Office on 27.03.2006 to complete the transaction, the plaintiff, on receiving the said communication from the defendant, got prepared demand drafts for different amounts in favour of the defendant for the balance sale consideration and also got drafted the sale deed for completion of the transaction, but the defendant refused to do so, which led to the filing of the present suit.

7. It is the case of the plaintiff that since advance amounts are paid as per the said agreement of sale and she was always ready and willing to perform her part of obligation and as the defendant has not come forward to perform his part of the obligation, the plaintiff invoked the jurisdiction of the learned trial Court by filing the underlying suit for specific performance of the agreement of sale dt.28.11.2005.

8. The specific plea of the plaintiff is that throughout the transaction she was ready and willing to complete her part of the transaction and the defendant was not, and thus prayed to grant specific performance and as an alternative relief, refund of advance sale consideration.

9. The defendant filed written statement contending that the document styled as agreement of sale dt.28.11.2005 was never intended to operate as a concluded contract of sale, but was only a tentative arrangement reduced into writing, subject to the plaintiff fulfilling certain stipulated requirements, thereafter a regular agreement of sale would be executed at a future stage.

10. It is further the specific case of the defendant that the plaintiff was required to pay a sum of Rs.9,00,000/- in terms of the schedule by 28.02.2006, i.e., one month prior to the date fixed for execution of the sale deed, and since the plaintiff failed to adhere to the said condition within the stipulated time, the agreement stood cancelled by its own terms. The defendant, however, admits receipt of Rs.5,00,000/- as stated by the plaintiff, but contends that failure to pay the balance consideration within the contractual timeline, i.e., by 28.02.2006 of payment of Rs.9,00,000/- as per the schedule, it resulted in automatic termination of the arrangement, and consequently, she is under no obligation to execute any sale deed in favour of the plaintiff.

11. The defendant has also categorically denied the plaintiff’s version that she or her husband approached her during the 3rd week of February or 3rd week of March for payment of the balance consideration or for execution of the sale deed, and has put the plaintiff to strict proof of the same, particularly with regard to readiness and willingness.

12. In substance, the defendant’s stand is that the plaintiff was never adhered to the terms of Agreement of Sale to perform her part of the contract within the stipulated time, and such failure resulted in the lapse of the agreement of sale dt.28.11.2005. In the said factual background, it is contended that the plaintiff is not entitled to the equitable relief of specific performance. The defendant further asserts her right to forfeit a sum of Rs.50,000/- in terms of the agreement being cancelled and accordingly sought dismissal of the suit for specific performance of the contract.

13. On the basis of the above said pleadings of either side, the learned trial Court was pleased to settle the following issues:

               1. Whether the suit agreement of sale dt.28.11.2005 came into existence as contended by the defendant?

               2. Whether the agreement of sale dt.28.11.2005 is deemed to have been cancelled w.e.f. 28.03.2006 as contended by the defendant?

               3. Whether the plaintiff is entitled for specific performance of the suit agreement of sale dt.28.11.2005?

               4. Whether the plaintiff is entitled for alternative relief of refund of the part sale consideration of Rs.5,00,000/- with interest as prayed for?

               5. To what relief?

14. During the course of trial, the plaintiff was examined as PW1 and also examined two other witnesses as PW2 and PW3 and got marked Exs.A1 to A9 and on the other hand, the defendant in support of her case gave evidence as DW1 and examined another witness as DW2 and did not file any other documents.

CONSIDERATION BY THE TRIAL COURT:

15. The learned trial Court, on appreciation of the oral and documentary evidence and the exhibits marked on record, has categorically held that though the execution of the agreement of sale dt.28.11.2005, marked as Ex.A1, was seriously disputed by the defendant on the ground that it was not a concluded agreement of sale, the terms incorporated therein clearly disclose a valid and enforceable contract. Accordingly, the trial Court held that Ex.A1 constitutes a valid agreement of sale and that the suit based thereon is maintainable, particularly under Section 17(1)(g) of the Registration Act, 1908. Thus, placing reliance on Ex.A1, the learned trial Court treated the said document as a duly concluded agreement of sale and answered the issue in favour of the plaintiff.

16. The learned trial Court further examined in detail the essential ingredients governing a suit for specific performance and, on appreciation of the material on record, recorded a categorical finding under Issue No.2 that the plaintiff had been consistently ready and willing to perform her part of the contract. It was held that the payments made and accepted by the defendant clearly indicated the plaintiff’s conduct of performance in accordance with the agreement and that the agreement cannot be said to have lapsed merely on account of non-payment of Rs.4,00,000/- prior to one month of Ex.A1.

17. The learned trial Court further observed that the agreement prescribed an outer limit of four months for completion of the transaction and that the plaintiff had, throughout the stipulated period, demonstrated readiness and willingness to perform her obligations. The plaintiff having paid an amount of Rs.5,00,000/- in support of her readiness and willingness placed reliance on Exs.A6 to A9, which are bank-issued letters evidencing arrangement of funds to the extent of Rs.14,50,000/- through bankers’ cheques and demand drafts. Basing the same, the learned trial Court held that the plaintiff had established her financial capacity to complete the transaction and the plaintiff was always ready and willing to perform her part and there is no breach of terms of Ex.A1 as alleged by the defendant.

18. The learned trial Court also placed reliance on Ex.A5 telegram dt.25.03.2006, issued just three days prior to expiry of the contractual period, calling upon the defendant to receive the balance sale consideration and to concerned Sub-Registrar Office on 27.03.2006 and execute sale deed, as a clear indication of the plaintiff’s continued readiness and willingness to complete the transaction.

19. It was further held by the trial Court that the conduct of the defendant in refusing to proceed with execution of the sale deed, despite the plaintiff’s readiness, was unjustified, and that the pleas raised by the defendant were only an attempt to avoid performance of the contract. The trial Court concluded that the defendant was attempting to evade execution of the sale deed and answered Issues Nos.3 and 4 also in favour of the plaintiff against the defendant. Accordingly, the suit was decreed, which has resulted in the filing of the present appeal before this Court.

GROUNDS OF APPEAL:

20. The sum and substance of the grounds of appeal is, that the plaintiff has failed to establish continuous readiness and willingness to perform his part of the contract and, there was breach of terms and that the learned trial Court Judge erred in decreeing the suit of the plaintiff, therefore, the plaintiff is not entitled to the relief of specific performance and prayed to allow the appeal setting aside the judgment and decree passed by the learned trial Court Judge.

SUBMISSIONS OF THE LEARNED COUNSEL FOR APPELLANT/ DEFENDANT:

21. Sri B. Nalin Kumar, learned Senior Counsel representing Sri Nadella Venkateswara Rao, learned counsel for the appellants/ defendants would contend that time is the essence of the agreement of sale, dt.28.11.2005, which ends by 28.03.2006, and the purchaser, i.e., the plaintiff, has to pay the balance sale consideration of Rs.14,50,000/- for execution of the sale deed. It is stated that the mode of payment of the balance sale consideration was endorsed in handwriting at the end of the agreement of sale, i.e., Rs.9 lakhs before one month of the registration, that is, up to 28.02.2006. The total amount to be paid by the plaintiff is Rs.19,50,000/-, but the plaintiff has only paid Rs.5 lakhs and, therefore, since the schedule was not properly adhered to by the plaintiff, the agreement of sale became a voidable agreement of sale and, by the conduct of the defendant, he can refuse to execute the sale deed in favour of the plaintiff by forfeiting an amount of Rs.50,000/- as per the terms of Ex.A1, and the balance sale amount was only to be refunded. Further as the plaintiff was entitled for specific performance of Ex.A1, in view of the alternative relief prayed for by the plaintiff, the learned trial Court ought to have granted the alternative relief of refund of advance sale consideration amount, after deducting the amount of Rs.50,000/- along with such interest as deem fit and necessary.

22. The contentions of the learned Senior Counsel is two fold. The first contention is that the plaintiff has breached the conditions of the contractual terms in respect of the payment schedule of the sale consideration, as only Rs.5,00,000/- was paid instead of Rs.9,00,000/- by 28.02.2006 and, as time is the essence of the contract, the agreement of sale vide Ex.A1 got lapsed and stood cancelled.

23. The second contention of the learned counsel is that the financial capacity of the plaintiff is the readiness and willingness which are in two parts, the foremost being the financial capacity and the latter being the conduct of the parties in seeking specific performance, and that readiness and financial capacity are more appropriate in this case.

24. Learned counsel further contended that even assuming that Rs.5 lakhs was paid before one month of the four months stipulated period, the plaintiff has exhibited Ex.A6 to A9, which are certificates, issued by the Bank Manager. Though they were admitted for marking, the said documents Ex.A6 to A9 would not be admissible in evidence in view of Section 2(8) of the Bankers' Books Evidence Act, 1891, wherein the said provision would show that such certificates should be accompanied by a certificate issued by the banker and a mere letter by the banker cannot be marked under Section 65B of the Indian Evidence Act, 1872, more particularly, in the light of Section 2(8) of the Bankers' Books Evidence Act. For ready reference, it is extracted hereunder:

               "(8) “certified copy” means a copy of any entry in the books of a bank together with a certificate written at the foot of such copy that it is a true copy of such entry, that such entry is contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business, and that such book is still in the custody of the bank, 1 [and where the copy was obtained by a mechanical or other process which in itself ensured the accuracy of the copy, a further certificate to that effect, but where the book from which such copy was prepared has been destroyed in the usual course of the bank’s business after the date on which the copy had been so prepared, a further certificate to that effect, each such certificate being dated and subscribed by the principal accountant or manager of the bank with his name and official title".

25. Learned Senior Counsel would contend in normal course of sale of immovable properties, though time is not the essence of the contract, however, in the present covenants of Ex.A1, the stipulated schedule of payment assumes significance and binding effect, and time was made the essence of the contract, since four months was fixed, failing which the agreement stands cancelled. However, the schedule fixed was not properly adhered to and, therefore, the payments as per the installment schedule cannot be ignored and have to be strictly construed and read in part in view of the specific terms that the sale deed has to be executed within four months by 28.03.2006, more so Ex.A6 to A9 cannot be considered as they are inadmissible in evidence. Since the payment was not made within the stipulated time, the agreement of sale vide Ex.A1 lapsed and, therefore, the plaintiff has no right to seek the equitable relief of specific performance. As such, the defendant has refused to act upon the said agreement of sale, as it is a voidable contract and by conduct he has avoided to perform his obligation and, therefore, the learned Senior Counsel would contend that the trial Court grossly erred in decreeing the suit by placing much reliance on Exs.A6 to A9.

26. The learned Senior Counsel further contends that as per Section 2(3) of the Bankers' Books Evidence Act, 1891, the Bankers' Books include ledgers, day books, cash books, account books and all other records used in the ordinary business of the bank, where these records are kept in form or are stored in microfilm, magnetic tape or any other form of mechanical or electronic data retrievable mechanism either on-site or at any off-site location, including a backup for disaster recovery, and Section 2(8) of the Act, as extracted above, contemplates certified copies of such entries in the said books.

27. The learned Senior Counsel would further contend that the bank certificates produced under Exs.A6 to A9 are not copies of such books maintained by the banks in the ordinary course of business and, therefore, the individual bank certificates issued without statutory certification as contemplated under the Act are not admissible, per se, they cannot be relied upon. Even assuming that the said Exs.A6 to A9 would only state that various pay orders and bankers' cheques were obtained from various banks on the dates 25.03.2006 and 27.03.2006 amounting to a total of Rs.14,50,000/-, these certificates do not disclose any source from which they are copied or extracted, such as certified extracts of the bank’s books of accounts maintained in the ordinary course of banking business, as required under the said Act. Thus, the learned Senior Counsel would contend that these certificates could only be treated as ordinary documents and not Bankers' Books and as such they are not admissible in evidence. Even the Branch Manager or any banker was not examined to prove the said documents as genuine, while the scope of the Act covers the enforceability of such documents under any legal proceedings before the Courts and High Courts as per Sections 2(4), 2(5) and 2(7) of the Act. Therefore, the learned Senior Counsel would contend that readiness is not proved by the plaintiff at all times, as these documents do not in any way show the financial capacity of the plaintiff.

28. Apart from the same, the learned counsel would also contend that the conduct of the plaintiff does not reflect the willingness to perform his part of the contractual obligation and, therefore, the plaintiff has defaulted in paying the installments as per the schedule. It also does not reflect willingness on the part of the plaintiff and, moreover, the plaintiff has not agreed to the cumulative advance of Rs.9 lakhs as per the payment schedule stipulated in Ex.A1 by 28.02.2006 within three months from the date of Ex.A1 and thus, the plaintiff failed to adhere to the schedule annexed at foot of Ex.A1.

29. Further, the learned Senior Counsel would contend that though there is an averment that the plaintiff approached the defendant for payment of an amount of Rs.4 lakhs in the month of February, there is no proof to that extent that the plaintiff approached the defendant to pay the said amount. Therefore, the learned trial Court, under a misconception of facts and law, settled the issue in favour of the plaintiff and thus, the appeal is liable to be allowed by setting aside the Judgment and decree, as the learned trial Court has not followed the principles of law in the proper perspective.

30. Apart from the above submissions, the learned Senior Counsel has placed reliance upon the judgment in J.P. Builders and another v. A. Ramadas Rao and another((2011) 1 SCC 429), and contends that readiness and willingness of a party to an agreement of sale has to be determined and ascertained from the conduct of the parties. Therefore, since the schedule of payment was not adhered to by the plaintiff, she is not entitled to the relief of specific performance, it being a discretionary and equitable relief. He has also placed reliance on the judgment reported in U.N. Krishnamurthy v. A.M. Krishnamurthy((2023) 11 SCC 775), wherein the principle of readiness and willingness was held to be a significant factor. The learned Senior Counsel would contend that the said judgment lays down that specific performance is a discretionary relief and though time is generally not the essence of the contract, such contracts can also be completed within a reasonable period of time and, therefore, the element of time cannot be completely ignored and failing to adhere to time, the contract can be refused to be performed.

31. The learned Senior Counsel has also placed reliance on Mohd. Imamduddin v. Nukala Ravinder Reddy(2026 (1) ALT 796 (TS)), wherein this Court held that the vendee committing breach of an agreement for sale of immovable property is not entitled to a decree of specific performance and failure to pay the installments within three months amounts to breach of the terms of the agreement. Therefore, the learned Senior Counsel contends that in the present case also there was a breach of the payment conditions as the plaintiff has not adhered to the conditions of payment and, as such, he is not entitled to the relief of specific performance.

32. Finally, the learned Senior Counsel would vehemently contend that all the issues ought to have been held against the plaintiff and that the learned trial Court has not appreciated the documentary and oral evidence on record with the settled principles of law relating to specific performance. Thus, contended that the instant judgment and decree is not valid and passed under a misconception of facts and law, as such, it is liable to be set aside by allowing the appeal.

SUBMISSIONS OF THE LEARNED COUNSEL FOR RESPONDENT:

33. Per contra, Sri M.Radhakrishna, learned counsel appearing for the respondents/plaintiffs would contend that the learned trial Court has examined the matter in detail and has rightly answered Issues Nos.1 to 4 in favour of the plaintiff. The core issue pertains to the plaintiff’s continuous readiness and willingness to perform his part of the contract. It is submitted that the plaintiff has consistently remained ready and willing to perform his obligations under the agreement of sale, having paid a sum of Rs.5,00,000/- on different occasions and made ready the balance sale consideration by obtaining loan. Further, it is contended that the plaintiff issued a telegram under Ex.A5 calling upon the defendant to appear before the concerned Sub-Registrar on 27.03.2006 for execution and registration of the sale deed by making ready the balance of sale consideration vide Exs.A6 to A9.

34. It is further contended that Exs.A6 to A9, being demand drafts and bankers’ cheques obtained in the name of the defendant, clearly establish that the plaintiff had arranged the balance sale consideration and was ready to complete the transaction. The learned counsel contends that the conduct of the defendant itself indicates an attempt to evade execution of the sale deed despite the plaintiff making full arrangements, which established continuous readiness and willingness from the date of agreement till institution of the suit. To substantiate financial capacity, it is also pointed out that the plaintiff had obtained bank loan facilities and secured bankers’ cheques and demand drafts in favour of the defendant as on Ex.A5 dated 27.03.2006 and demanded the defendant to present himself for execution of sale deed, which was sufficient compliance with Section 16(c) of the Specific Relief Act, 1963, and contended that the trial Court was justified in decreeing the suit.

35. Learned counsel placing reliance on the decision of the Hon’ble Supreme Court in Chand Rani (Dead) by LRs v. Kamal Rani (Dead) by LRs(1993 (1) SCC 519) would contend that time is not ordinarily the essence of contracts relating to immovable property unless expressly intended. It is submitted that even though four months was stipulated for completion the plaintiff having paid Rs.5 lakhs took timely steps by arranging Rs.14,50,000/-, issued Ex.A5 telegram, by obtaining Exs.A6 to A9, which collectively establish financial capacity and continuous readiness and willingness. Reliance is also placed upon the decision of the Tandra Venkata Subrahmanayam v. Vegesana Viswanadha Raju and Another(AIR 1968 Andhra Pradesh 190) to submit that even where time is stipulated, the contract does not automatically stand terminated unless expressly rescinded. In the present case, no notice of cancellation was issued by the defendant; on the contrary, the plaintiff was even ready before the completion of stipulated time in Exs.A1 and thus the agreement was still in force as on Exs.A5 to A9, i.e., demand made by obtaining bankers cheques. He also relied upon the decision in Syed M.M. Rizvi vs. Subhash Singh and Ors(2014 SCC Online All 15624) to reinforce that mere expiry of time does not terminate an agreement relating to immovable property in the absence of express rescission.

36. Further, learned counsel submits that the objection raised by the appellant with regard to Exs.A6 to A9, is unsustainable. Placing reliance upon the decisions of the Hon’ble Supreme Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Anr.( (2003) 8 SCC 752) and Sonu Alias Amar v. State of Haryana(2017(8) SCC 570), it is contended that objections relating to admissibility and mode of proof must be raised at the time of marking the document, and once a document is admitted in evidence without objection, such challenge cannot be permitted at the appellate stage. Since Exs.A6 to A9 were marked without objection, the defendant is deemed to have waived such objection, and therefore they cannot now be questioned on the ground of non-compliance with Section 2(8) of the Bankers’ Books Evidence Act, 1891.

37. Further reliance is placed on the judgment of the High Court of Karnataka in Kavita v. Raman Gouda(WP.No.201537/2021(GM-CPC), dt.25.08.2021.) to contend that bank certificates issued in the ordinary course of business have evidentiary value and non-compliance with strict statutory format is only a technical irregularity which does not render them inadmissible.

38. On the basis of the above, it is submitted by the learned counsel that Exs.A6 to A9 sufficiently establish the plaintiff’s financial capacity and readiness and willingness, and the trial Court has rightly appreciated the evidence in decreeing the suit. It is contended that the impugned judgment does not suffer from any illegality, perversity or procedural irregularity warranting interference, and therefore the appeal deserves to be dismissed.

REPLY OF THE APPELLANT/DEFENDANT:

39. In reply, learned Senior Counsel for the appellant/defendant has tried to distinguish the judgments relied upon by the counsel for the plaintiff and would contend that the judgments cited by the respondent/plaintiff do not cover the issue which has fallen for consideration before this Court as regards non-compliance with Section 2(8) of the Bankers’ Books Evidence Act, 1891, and are distinguishable on facts and are not applicable to the present factual matrix.

CONSIDERATION BY THE COURT:

40. Basing on the above submissions made by the counsel appearing on either side, the following points arise for consideration in the instant appeal suit:

               1. Whether the plaintiff has shown continuous readiness and willingness for performance of his obligation to obtain registered sale deed pursuant to the agreement of sale, dt.28.11.2005 and whether the findings arrived at by the learned trial Court Judge are justified and valid?

               2. Whether Ex.A6 to A9 are not admissible in evidence and whether such documents could be admissible in evidence to show the financial capacity of the plaintiff, more so, when a certificate of the banker is not produced as per Section 2(8) of the Bankers' Books Evidence Act, 1891.

POINT NO.1:

41. Evidently, though the defendant has disputed Ex.A1 dt.28.11.2005 as an agreement of sale, a careful reading of the document would show that the covenants contained therein, in clear and unambiguous terms, establish that it is a concluded agreement of sale. An unregistered agreement of sale is enforceable in a suit for specific performance, particularly in view of the proviso to Section 17(1)(g) of the Registration Act, 1908. In that view of the matter, the foremost contention raised by the learned Senior Counsel for the defendant that Ex.A1 is not an agreement of sale cannot be accepted, and the findings recorded by the learned trial Court in that regard are proper and sustainable.

42. Now coming to Point No.1, which relates to the plaintiff’s readiness and willingness to perform her part of the contract, it is well settled that such readiness and willingness must exist from the inception and continue till completion of the contractual period. In the present case, it is not in dispute that a sum of Rs.50,000/- was paid on the date of agreement and another Rs.50,000/- on the same day. It is also an admitted fact that Rs.1,00,000/- was paid under Ex.A2, followed by Rs.1,00,000/- on 19.12.2005, another Rs.1,00,000/- on 20.12.2005, and thereafter Rs.2,00,000/- on 24.12.2005. According to the defendant, the installment schedule reflected in the footnote of Ex.A1 required strict compliance. However, once the defendant has received and appropriated the amounts paid, he cannot later turn around and allege breach in isolation of the overall conduct of the transaction.

43. The grievance of the defendant essentially is that as on 24.12.2005 only Rs.5,00,000/- was paid, and even by the end of February, 2006 the balance payments were not completed as per the schedule. It is also his case that even by 28.02.2006 only Rs.5,00,000/- stood paid, which according to him constitutes breach as the conditions of Ex.A1 mentioned on the foot as Rs.9,00,000/- before one month of completion of time of four months.

44. However, Ex.A1 clearly provides that the total sale consideration is to be paid within four months from the date of agreement, i.e., on or before 28.03.2006 and the execution of the sale deed was to be adhered to as outer limit, failing which the agreement of sale stands cancelled and Rs.50,000/- shall be forfeited. Though the footnote contains a staggered payment structure, the dominant intention emerging from the agreement is that the entire transaction is to be completed within four months.

45. It is also significant that Ex.A1 itself records that the plaintiff intended to obtain a bank loan which reads as hereunder:

               “…The essence of the Agreement of Sale is the four months period only. On or before expiry of these four months period the Purchaser shall pay the balance sale consideration of Rs.19,00,000/-(Rs.Nineteen Lakhs Only) to the Vendor herein in cash and by way of cheque of D.D. and get regular Sale Deed registered before concerned and competent authority. It is not out of the place to mention that the Purchaser is intending to obtain loan from Bank. As per the Bank regulations the Bank will issue Cheque or D.D. directly in favour of the vendor herein on behalf of the Purchaser as part of the sale consideration…”

46. This clause was consciously incorporated by both parties, thereby recognizing the plaintiff’s mode of performance through banking channels. Further, the agreement also contemplates that in the event of failure to complete the transaction within four months, the vendor would be entitled to cancel the agreement and forfeit the advance of Rs.50,000/-.

47. More particularly, time is definitely the essence of the contract as per the terms of Ex.A1. Although, in transactions relating to immovable property, time is not treated as the essence of the contract, but where the agreement specifically fixes an outer limit and stipulates consequences for non-completion, the intention of the parties assumes importance and has to be gathered from the document as a whole.

48. The Hon’ble Supreme Court in Chand Rani (Dead)’s has held that generally time is not the essence in contracts relating to immovable property unless expressly intended otherwise. In the present case, the outer limit of four months from 28.11.2005 i.e., till 28.03.2006 is clearly stipulated, and therefore the contractual obligation was required to be performed within the said period.

49. It is the case of the plaintiff that she had, in fact, secured financial assistance from HSBC Bank and arranged the balance sale consideration of Rs.14,50,000/-. It is also her case that she approached the defendant on 25.03.2006 expressing readiness to pay the balance amount. This is supported by Ex.A5 dated 27.03.2006 telegram issued on the same day calling upon the defendant to receive the balance consideration and called upon the defendant to the Sub-Registrar Office for execution of the sale deed issued even before outer limit of 28.03.2006. It is further the case that demand drafts and bankers’ cheques were subsequently obtained and kept ready for completion of the transaction.

50. The principal objection of the defendant, however, relates to Exs.A6 to A9. According to him, under Section 2(3) read with Section 2(8) of the Bankers’ Books Evidence Act, 1891, such documents are required to be certified copies of entries from the bank’s books and must be supported by proper statutory certification. Since, Exs.A6 to A9 do not contain such certification, they are inadmissible and it is contended that they cannot be relied upon to establish financial capacity or readiness.

51. However, it is equally important to note that no objection was raised at the time of marking of the said documents before the trial Court. The law laid down by the Hon’ble Supreme Court in R.V.E. Venkatachala Gounder’s case(supra) makes it clear that objections relating to mode of proof must be taken at the earliest stage, failing which they are deemed to be waived.

52. Further, in Sonu @ Amar’s case(supra), the Hon’ble Supreme Court has reiterated that once a document is admitted in evidence without objection, it can be acted upon and objections relating to procedural irregularity in proof cannot be raised at the appellate stage. The High Court of Karnataka in similar circumstances in Kavita’s case(supra) has also held that banking documents issued in the ordinary course of business cannot be discarded merely for want of technical certification.

53. Viewed in this background, Exs.A6 to A9, though styled as bank certificates, were produced only to demonstrate that bankers’ cheques and demand drafts were obtained in favour of the defendant towards the balance sale consideration. When such documents are already on record and admitted in evidence, they cannot be brushed aside on hyper-technical objections, particularly when their contents clearly depict the financial capacity and readiness of the plaintiff.

54. In addition, Ex.A5/telegram dated 27.03.2006 further strengthens the plaintiff’s case that she had called upon the defendant well within the contractual period of 28.03.2006 to complete the transaction. The overall conduct reflected from the record shows that the plaintiff had taken steps towards performance of her part within the stipulated time, whereas the defendant’s conduct does not reflect a bona fide intention to complete the sale. More so, it was specifically agreed that failing to complete the transaction within four months from Ex.A1, the agreement stands cancelled and the plaintiff was ready with the sale consideration even before the said date which reflects the bonafide conduct of the plaintiff.

55. On a holistic appreciation of the evidence, it cannot be said that the trial Court has committed any perversity or illegality in arriving at its findings. The appreciation of Exs.A1, A5 and A6 to A9 has been done in a proper perspective and the conclusions drawn are based on evidence on record and thus in considered view of this Court is valid. In that view of the matter, Point No.1 is answered against the defendant and in favour of the plaintiff.

POINT No.2:

56. Insofar as the admissibility of Exs.A6 to A9 is concerned, this Court, having carefully appreciated the facts on record and the settled legal position governing banking documents and evidentiary objections, finds that the contention raised by the defendant cannot be accepted.

57. It is not in dispute that no objection was raised by the defendant at the time of marking of Exs.A6 to A9 before the learned trial Court. Once such documents are admitted in evidence without objection, any challenge relating to the mode or manner of proof stands waived and cannot be permitted to be raised for the first time in appeal.

58. The law is well settled that objections as to the method of proof fall within the category of curable irregularities, and such objection relating to mode of proof is deemed to have been waived once evidence is admitted and acted upon, and the appellate Court would not ordinarily interfere on such technical objections, unless the document is inherently inadmissible in law.

59. The very documents marked as Exs.A6 to A9, clearly indicate that bankers’ cheques and demand drafts were obtained in favour of the defendant towards the balance sale consideration, and would reveal the financial capacity as well as the readiness and willingness of the plaintiff, and therefore they constitute relevant material to assess the plaintiff’s financial capacity as well as continuous readiness and willingness.

60. Further, the Hon’ble Single Judge of Karnataka High Court in Kavita’s case(supra) held that the said bank statements are admissible in evidence. This principle also finds support in the consistent judicial view that banking records and certificates issued in the ordinary course of banking business carry evidentiary value, and cannot be discarded merely on the ground of absence of strict statutory formality, particularly when they are not shown to be fabricated or unreliable.

61. In the present case also, in the considered view of this Court, though the certificate contemplated under Section 2(8) of the Bankers’ Books Evidence Act, 1891 is not produced, the documents Exs.A6 to A9 nevertheless disclose that bankers’ cheques and demand drafts were obtained in favour of the defendant towards discharge of the balance sale consideration. It is pertinent to note that under the scheme of the Bankers’ Books Evidence Act, 1891, particularly Sections 2(3) and 2(8), the object is only to facilitate proof of entries in banking records, and not to exclude otherwise reliable banking transactions on technical lapses in certification.

62. Even where certification is contemplated under Section 2(8), the requirement has been consistently treated as procedural rather than substantive, and non-compliance by itself does not render the document inadmissible, especially when its authenticity is not in serious dispute.

63. Further, the issue relating to the validity of the certificates is not of much significance in a suit for specific performance and, therefore, need not be examined in detail in these proceedings. The admissions on record are sufficient to establish the plaintiff’s readiness and willingness. Under Section 16(c) of the Specific Relief Act, 1963, what is material is whether the plaintiff has continuously shown readiness and willingness to perform the contract, rather than strict compliance with every procedural requirement relating to banking certification. The documents marked as Exs.A5 to A9, along with the admitted payment of advance amounts, clearly indicate that the plaintiff had the financial capacity and was throughout ready to perform her part of the contract.

64. In fact, the principle laid down by the Hon’ble Supreme Court in R.V.E.Venkatachala Gounder’s case(supra) makes it clear that once documents are admitted in evidence without objection, the question of mode of proof cannot be reopened at the appellate stage. Similarly, in Sonu @ Amar’s case(supra), the Hon’ble Supreme Court reiterated that procedural objections cannot be allowed to defeat substantive justice once evidence has been received.

65. Viewed in this background, Exs.A6 to A9 cannot be brushed aside on a hyper-technical objection relating to certification under the Bankers’ Books Evidence Act, particularly when they have been acted upon by the trial Court for assessing financial capacity and readiness. This Court is therefore of the considered view that the learned trial Court has rightly relied upon the said documents.

66. Accordingly, this point No.2 is answered in favour of the plaintiff and against the defendant.

CONCLUSION:

67. In the light of the above stated facts and findings, this Court finds that the appellant has not made out any grounds for interference with the well-considered judgment of the learned trial Court Judge and the appeal is devoid of merits and is liable to be dismissed.

68. Accordingly, this appeal suit is DISMISSED affirming the judgment and decree, dt.13.04.2010, in OS.No.299 of 2006 on the file of the Principal District Judge Ranga Reddy District L.B.Nagar. There shall be no orders as to costs.