APHC010140992024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3311] FRIDAY, THE THIRTY FIRST DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE MS JUSTICE B S BHANUMATHI CIVIL REVISION PETITION NO: 802/2024 Between: Killari @ Kilaru Harish, ...PETITIONER AND Botta Venkata Gowripathi ...RESPONDENT Counsel for the Petitioner: 1. MANGENA SREE RAMA RAO Counsel for the Respondent: 1. Dr.SATTARU RAJANI The Court made the following: 2 CRP.No.802 of 2024 ORDER: This revision petition is filed against the order date 26.09.2023 passed in I.A.No.333/2023 in O.S.No.703/2015 on the file of the Court of XII Additional District Judge at Visakhapatnam. 02. It is the contention of the revision petitioner that the trial Court ought to have considered that the suit is barred by limitation as the time is the essence of the contract. On the other hand, the learned counsel for the respondent contended that it is a mixed question of fact and law and therefore, the suit cannot be rejected on that ground. 03. The learned counsel for the petitioner placed reliance on the following decisions of the Supreme Court in support of his contentions: i. Desh Raj vs. Rohtash Singh1, para No.21: “21. In this respect, we must now take note of Section 55 of the Contract Act which stipulates the aftermath in case of failure to perform contractual obligations at fixed time. The provision states — 55. Effect of failure to perform at fixed time, in contract in which time is essential.—When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract. 1 (2023) 3 SCC 714 3 CRP.No.802 of 2024 Effect of such failure when time is not essential.—If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure. Effect of acceptance of performance at time other than that agreed upon.—If, in case of a contract voidable on account of the promisor's failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than that agreed, the promisee cannot claim compensation for any loss occasioned by the non-performance of the promise at the time agreed, unless, at the time of such acceptance, he gives notice to the promisor of his intention to do so.” ii. Smt. Katta Sujatha Reddy & Anr. versus Siddamsetty Infra Projects Pvt. Ltd. & Ors.,2 para Nos.10 & 11: “10. The trial Court further held that while there exists a false plea on the part of the vendor, the same however does not benefit the case of the purchaser because there are grave laches on his part too. The purchaser himself having approached the Court with unclean hands, he cannot get the benefit of the false plea made by the vendor. 11. The trial court also came to the conclusion that the purchaser was never ready to pay the balance sale 2 2022 LiveLaw (SC) 712 4 CRP.No.802 of 2024 consideration, if so, he would have either issued a notice to the vendor making out his willingness to pay. Hence, on the basis of all the above mentioned observations, it was held that the purchaser is not entitled for specific performance of the agreements of sale and that the parties never intended to treat time as an essence of the contract.” 04. He further submitted that moreover, the trial Court advanced to the stage of trial in the suit after prolonged pendency of the suit since the suit was filed on 06.11.2015 and the written statement was filed in February, 2016, whereas the issues were framed in the year 2019 and the suit was posted for trial in the year 2023. Therefore, he contends that filing of the petition is nothing but a backdoor method to prolong the disposal of the suit. He further submitted that the agreement contained reciprocal obligations and therefore, unless the suit comes for trial, the suit cannot be rejected at the threshold under Order VII, rule 11 CPC. 05. As rightly contended by the learned counsel for the respondent, there is no reason for the petitioner to approach the Court under this petition after lapse of several years after filing the suit. That apart, no issue was also framed on the question of limitation and if at all it is a ground taken by the defendant in the written statement, there ought to be an issue on this point. 06. It is settled law that mere stipulation of time for performance of contract does not make it essence of contract. When there are mutual obligations under an agreement of sale, whether time is essence of contract is a mixed question of fact and law insofar as limitation is concerned and also for examining whether the relief of specific performance can be granted or not. As such, merely on the ground of stipulation of time for performance in the agreement, the suit cannot be 5 CRP.No.802 of 2024 rejected under Order VII, rule 11 of C.P.C. The trial Court rightly dismissed the petition. Hence, there is no merit in the revision. 07. In result, with the above observations, the revision petition is dismissed. Pending miscellaneous applications, if any, shall stand closed. ________________________ JUSTICE B.S.BHANUMATHI Date: 31.01.2025 NSM 6 CRP.No.802 of 2024 64 HON’BLE Ms. JUSTICE B.S.BHANUMATHI CIVIL REVISION PETITION NO: 802/2024 Date: 31.01.2025 NSM