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IN THE COURT OF VIII ADDITIONAL DISTRICT JUDGE AT MEDAK
PRESENT: SRI A. KARNA KUMAR,
VII Addl. District Judge, Sangareddy.
FAC VIII Addl. District Judge, Medak.
Friday the 8 th day of February, 2019
A.S. NO. 29 OF 2016
Between:-
K.S.S. Nageshwar Rao S/o K. Pattabhi Ramaiah, age 55 years, Occ: Agriculture, R/o Flat No.601, S.V. Classic Residency, Ameerpet, Hyderabad. …Appellant
A N D
1.Y. Ramulu S/o late Y. Suraiah, age 60 years, Occ: Dhobi (Washerman) R/o H.No. 7-1-484/2, Kummariwada, Ameerpet, Hyderabad.
2.M/s Amruth Real Estate, Rep.by its Chairman, Patha Bairaiah S/o Balram, age 50 years, Occ: Business. R/o Plot No.402, Uday Krishna Complex, KPHB Colony, Bhagya Nagar, Hyderabad.
...Respondents
Aggrieved by the Judgment and Decree dated 29-4-2016 passed by the
Senior Civil Judge, Medak in
O.S. NO. 43 of 2005
Between:-
K.S.S. Nageshwar Rao …Plaintif A N D
1.Y. Ramulu,
2.M/s Amruth Real Estate. …Defendants
This Appeal Suit having come before me for final hearing in the presence of Sri G. Laxman Kumar, Advocate for Appellant and the Respondents No.1 & 2 remained exparte, upon perusal of material papers available on record and upon hearing and having stood over for consideration till this date, this Court delivered the following:−
:: J U D G M E N T ::
1.The unsuccessful plaintif in OS 43 of 2005 filed this appeal seeking to set aside the Judgment and Decree dated 29-4-2016 in OS 43 of 2005 passed by the Senior Civil Judge, Medak.
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2.For the sake of convenience, the parties hereinafter are referred to as they were arrayed before the Lower Court.
3.OS 43 of 2005 was filed by sole plaintif for Specific Performance of
Agreement of sale deed, dated 24th September, 2004 and for cancellation of sale deed bearing document No.3020/2005, against three defendants.
The suit of the plaintif was dismissed.
4.Brief pleadings of both sides before the Lower Court are as follows:-
Plaint averments:
5.The first defendant is the absolute owner of the suit schedule property and the plaintif and first defendant entered into an agreement of sale on 24-09-2004 in respect of plaint “A” schedule property for total sale consideration of Rs.4,82,300/- (Rupees Four lakhs Eighty Two thousand Three hundred only) and the plaintif paid Rs.1,00,000/- (Rupees
One lakh only) towards advance sale consideration and balance amount is payable within six months from the date of agreement of sale i.e., on or
before 31-03-2005 and in February 2005 plaintif expressed his readiness
for payment of balance sale consideration and requested the first defendant for execution of registered sale deed and due to want of correct boundaries the registration was postponed and when he was ready with balance sale consideration, first defendant requested him to wait for two months and later he received notice from the first defendant demanding him to pay balance sale consideration amount within two days and on that he immediately approached the first defendant, but first defendant intentionally evaded him with malafide intention and he simply mentioned in the notice to forfeit the advance amount, but there is no forfeiture clause in agreement of sale and that he got issued legal notice 3
dated 30-07-2005 to the first defendant by expressing his readiness to pay
balance sale consideration and the same was received by first defendant and he neither gave reply nor choose his readiness and later he came to know that first defendant sold away plaint “A” schedule property to the 2nd defendant under registered sale deed dated 13-07-2005 and the same is liable to be canceled as it was executed during pendency of agreement of sale in his favour and then he had no other option except to file the present suit for specific performance and for cancellation of sale deed shown in plaint “B” schedule property and then he entitled for specific performance of agreement of sale, dated 24.09.2004 and he is always ready and willing to pay balance sale consideration to the first defendant.
Hence, the suit
Written statements averments of D1 and D2:
6.The first-defendant denied the material allegations in the plaint of the plaintif stating that the suit is not maintainable and the plaintif willfully evaded to perform his obligation of contract and he is not entitled for the relief of specific performance and admitting that he had entered into agreement of sale with him and paid One lakh rupees towards advance payment and agreed to pay the balance sale consideration within six months i.e., on or before 31-03-2005 and stating that after payment of advance amount the plaintif never stated about his readiness to perform his part of contract and inspite of his repeated request the plaintif used to say one or other reason and in the agreement of sale it is specifically mentioned that time is essence of the contract and balance sale consideration was agreed to be paid to him within six months i.e., on or
before 31-03-2005 and there is Clause-4 in the said agreement of sale that
4 time is essence of the contract and then he vexed over the conduct of the plaintif and got issued legal notice dated 25-6-2005 demanding the plaintif to perform his part of contract within two days or otherwise it will forfeit the advance amount of Rs.1,00,000/- paid by him and the plaintif received the said notice but he never gave reply nor came forward to perform his part of contract and the said agreement of sale was canceled and that the plaintif issued notice on 30-07-2005 without adverting to the notice issued by him with false allegations and the said notice totally silent about the notice issued by him and the plaintif nowhere mentioned in the plaint that he refused to register plaint “A” schedule property for want of more money and that he did not come to the court with clean hands to seek equitable relief and as the plaintif failed to perform his part of contract he is at liberty to alienate the said property to any intending purchaser.
7.The second-defendant in his written statement denying the material averments in the plaint and stating that the plaintif is not entitled for the relief of specific performance U/Sec.16 of Specific Relief Act as he willfully evaded to perform his obligation under the contract and that he purchased the plaint “A” schedule property from its lawful owner i.e., first defendant herein after ascertaining the fact that plaintif failed to discharge his obligation under the agreement of sale dated 24-09-2004 even after issuance of legal notice dated 25-06-2005 by the first defendant i.e., more than 60 days after the cutof date and the said agreement of sale and then the plaintif is a defaulter and the plaintif got issued legal notice dated 30-07-2005 after his purchase of the plaint “A” schedule property from first defendant and that he is bonafide purchaser and the plaintif is not entitled to seek the relief of cancellation of sale deed and he is a prima- 5 facie defaulter and not performed his part of obligation and the plaintif got issued the said legal notice dated 30-07-2005 after being aware of the fact that the said property was sold to him and that there are no merits in the suit. For these reasons he prays to dismiss the suit.
8.Basing on the above pleadings, the following issues were framed for trial before the Lower Court:
1.Whether the plaintif has performed and fulfilled his part of contract obligation, it so?
2.Whether the plaintif is entitled relief for specific performance of contract of sale covered by said agreement of sale dated 24-9-2004, if not?
3.Whether the plaintif is entitled for the relief of cancellation of sale deed bearing Doc. No.3020/2005, dated 13-7-2005?
4.To what relief?
9.Before the Trial Court, plaintif examined himself as PW1 and another witness as PW2 and got marked Ex.A1 to Ex.A6. On behalf of the defendants DWs 1 and 2 are examined and no documents were marked on their behalf.
10.After assessing oral and documentary evidence adduced by both the parties the learned trial Court Judge dismissed the suit of the plaintif without costs.
11.Aggrieved by the same the appellant who is the plaintif in the said suit preferred this appeal on the following grounds:
Grounds of Appeal:
1. The judgment and decree under appeal is against the law, equity and facts on record, which resulted miscarriage of natural justice, hence fit to be set-a-side.
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2. The judgment and decree under appeal is purely one sided has not taken into consideration of various facts and law consequently, there is grave error in the judgment of trial Court.
3. The trial Court miserably failed to look into the points raised by the appellant with regard to maintainability of the suit.
4. The plaintif has proved his case on all aspects by examining PWs 1 and 2 and also got marked Ex.A1 to Ex.A6. On the other hand, the respondents have not filed any single document. The respondents have created Ex.A2 and Ex.A3. Even after issuing
Ex.A4, no steps taken by the respondents, which itself clearly shows the negligence on the part of the respondent No.1. The respondents 1 and 2 colluded with each other and created the documents Ex.A2 and Ex.A3. The respondent No.1 failed to perform his part of obligations and even after receiving Ex.A4, he keep silent and colluded with the respondent No.2 got created the documents Ex.A2 and Ex.A3.
5. The trial Court has not taken into consideration the evidence of
PW1 and PW2 and also the documents Ex.A1 and Ex.A4 to Ex.A6 which clearly shows that the respondent No.1 failed to perform his part of obligations under Ex.A1 which has not taken into consideration.
6. That the trial Court has not considered the oral and documentary evidence adduced by the appellant. As per the face on record, the appellant is having good case and the question of dismissing the suit does not arise but the trial Court erroneously dismissed the suit.
7. The story and evidence adduced by the respondents itself are planted. That any how the judgment and decree is beyond natural justice and facts on record are not sustainable one.
8. There are several weaknesses in the testimony of the respondents case and the findings of the trial Court are perverse since it has been conjectures and surmises.
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12. Respondents No.1 and 2 are called absent, set exparte. No additional evidence is adduced on either side in this appeal.
13.Heard the arguments of appeal apart from submitting oral arguments the appellant also filed written arguments in support of his contention.
14.Now the point for consideration is whether the Decree and Judgment passed by the trial court in OS No.43 of 2005, dated 29-4-2016 passed by the learned Senior Civil Judge, Medak is sustainable in law or on facts ?
Point:
15.The plaintif filed suit for Specific Performance of Agreement of
Sale, dated 24-9-2004 and for cancellation of sale deed bearing document
No. 3020/2005 on the ground having executed agreement of sale, dated 24-9-2004 by the first-defendant in respect of ‘A’ schedule property having received Rs.1.00 lakh towards advance sale consideration, even though the plaintif was ready and willing to perform his part of contract the defendant was not ready and willing to perform his part of contract and to avoid execution of sale deed in favour of the plaintif he sold the plaint ‘A’ schedule property to the second-defendant vide registered sale deed document No. 3020/2005, dated 13-7-2005, therefore the plaintif filed suit for specific performance of contract and executed registered sale deed by cancellation of registered sale deed executed in favour of the second defendant by the first-defendant.
16.On the other hand the first-defendant admitted the execution of sale agreement and receipt of advance sale consideration from the plaintif, but contended that the plaintif was not ready and willing to perform his part of contract inspite of demands made by first-defendant 8 and also issuance of Legal Notice dated 25-6-2005. The plaintif was not ready and willing to perform his part of contract, therefore he sold the plaint ‘A’ schedule property to the second-defendant under registered sale deed dated 13-7-2005 and that there are lapses on the part of first- defendant. Therefore, prayed to dismiss the suit of the plaintif.
17.The second-defendant contended that he is bonafide purchaser and he purchased the plaint ‘A’ schedule property for valid sale consideration as the plaintif did not come forward to perform his part of contract, the first-defendant executed sale deed in his favour. And further contended that the plaintif is not entitled to seek relief of cancellation of sale deed executed in his favour.
18.To prove the case of the plaintif the plaintif relied on the evidence of PW1 and Ex.A1 to Ex.A6. On the other hand the first-defendant relied on the evidence of DW1 and second-defendant relied on the evidence of
DW2.
19.PW1 who is the plaintif herein deposed about the ownership of the first-defendant in respect of the ‘A’ schedule property and entering into agreement of sale with the first-defendant and execution of sale agreement, payment of advance sale consideration by him, stipulation of time mentioned in the sale agreement to pay balance sale consideration amount and to execute sale deed. He also deposed that he was always ready and willing to perform his part of contract, but the first-defendant was not ready and willing to perform his part of contract and he sold the property to the second-defendant.
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20.There is no dispute regarding execution of ownership of first- defendant of plaint ‘A’ schedule property and execution of sale agreement which was marked as Ex.A1 and payment of advance sale consideration amount of Rs.1.00 lakh by the plaintif in favour of first-defendant. There is also no dispute regarding time stipulated in the sale agreement. The main dispute between the plaintif and defendants is that the performing part of contract by the plaintif and therefore the plaintif has to prove that he was always ready and willing to perform his part of contract by paying advance sale consideration amount and to get execute sale deed within time mentioned in the sale agreement Ex.A1. As can be seen from
Ex.A1 Agreement of sale both the parties agreed that the balance sale consideration of Rs.3,82,300/- shall be paid by the plaintif on or before 31- 3-2005 and the first-defendant shall execute sale deed in favour of plaintif in respect of plaint ‘A’ schedule property. As per the pleadings in the plaint the plaintif contended that he was always ready and willing to perform his part of contract and he demanded the first-defendant to take advance sale consideration amount and to execute sale deed and in the month of
February, 2005 the plaintif was ready for payment of balance sale consideration and requested first-defendant for execution of registered sale deed. But for want of correct boundaries the registration was postponed and when the plaintif demanded the first-defendant the first- defendant asked him to wait for two months.
21.As per Section 16(c) of Specific Relief Act which reads as follows;
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 10 the performance of which has been prevented or waived by the defendant.
Explanation: —For the purposes of clause (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 plaintif must aver performance of, or readiness and willingness to perform, the contract according to its true construction.
22.The plaintif has to establish that he was always ready and willing to perform his part of contract.
In a decision report in 2019(1) ALT (SC) 30 (D.B.) between Kamal
Kumar Vs. Premlata Joshi and others, it was held that;
It is settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The issue of readiness and willingness, in our view, is the most important issue for considering the grant of specific performance of the contract and the same having been held by the two Courts below on appreciation of evidence against the plaintif, it is binding on this Court it being essentially a question of fact, this Court is not inclined to again appreciate the entire evidence while hearing the appeal under
Article 136 of the Constitution.
Requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law.
23.So as per the above decision of Hon’ble Supreme Court it is clear that the plaintif must plead and prove his readiness and willingness to perform his part of contract.
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24.PW1 during his cross-examination he admitted that he has no documentary evidence to show that he was ready with money to perform his part of contract. He further stated that prior to issuance of Legal notice by the first-defendant under Ex.A2 he approached first-defendant and expressed his readiness to perform his part of contract. It is further deposed by PW1 that he was ready with money and he along with first- defendant went to Sub Registrar office and that they found boundaries were not tallied, as such he did not get execute sale deed, but there is no evidence that the plaintif went to Sub Registrar office along with first- defendant, and on verification found that the boundaries of ‘A’ schedule property are not tallied. Admittedly six months time was stipulated in sale agreement for payment of balance sale consideration and for execution of sale deed. The plaintif has not issued any legal notice nor adduced any evidence to prove that he demanded the first-defendant within stipulated time of six months and he was ready and willing to perform his part of contract. The plaintif to prove that he was ready and willing to perform him contract he relied on the evidence of PW2 who is said to be third party.
But as can seen from the evidence of PW2 he is neither attestor nor present at the time of execution of agreement of sale, though PW1 stated that he was present at the time of agreement of sale, but there is no evidence about his presence at the time of agreement of sale and if at all
PW2 was present nothing was prevented him to sign on Ex.A1 as an attestor. PW2 during cross-examination he deposed that he does not know as to why the first-defendant did not execute registered sale deed in favour of plaintif. So the evidence of PW2 is no way helpful to the case of the plaintif and his evidence is not believable and his evidence is not supporting the evidence of PW1 regarding readiness and willingness by 12 the plaintif to pay balance sale consideration and get execute registered sale deed. So the plaintif failed to prove that he was always ready and willing to perform his part of contract. The evidence adduced by the plaintif does not establish about his readiness and willingness to perform his part of contract as pleaded in the plaint.
25.On the other hand the first-defendant examined as DW1 and second- defendant examined as DW2. DW1 stated that he executed sale agreement in favour of the plaintif having received advance sale consideration amount. He also agreed to execute sale deed after receipt of balance sale consideration within six months. He further deposed that inspite of demands and issuance of legal notice under Ex.A2 the plaintif did not come forward to pay balance sale consideration amount and to get execution of sale deed. Therefore, he sold plaint schedule property to the second-defendant under registered sale deed.
26.DW2 who is the second-defendant deposed that he is bonafide purchaser and he purchased the plaint ‘A’ schedule property under registered sale deed dated 13-7-2005, copy of the same was marked as
Ex.A3. Both DWs 1 and 2 were cross-examined by the learned counsel for the plaintif, but nothing was elicited to prove that the plaintif was ready and willing to perform his part of contract. The evidence of DW1 disclosed that even though he was ready and willing to perform his part of contract, the plaintif did not come forward to perform his part of contract to pay balance sale consideration within stipulated time or time granted by him in the legal notice Ex.A2. Admittedly first-defendant got issued legal notice under Ex.A2 even after expiry of six months stipulated time and two days time was given to the plaintif to pay balance sale consideration amount 13 and to get execute sale deed. Though the plaintif received Ex.A2 he neither come forward to pay balance sale consideration amount nor get execute sale deed nor he gave any reply to the notice under Ex.A2. Since the plaintif did not come forward to pay balance sale consideration and to get execute sale deed the first-defendant sold the property to the second- defendant under Ex.A3 on 13-7-2005, but after execution of sale deed by the first-defendant in favour of second-defendant under original of Ex.A3 the plaintif got issued legal notice on 30-7-2005 under original of Ex.A4.
Ex.A2 clearly establish that the first-defendant was ready and willing to perform his part of contract and even after expiry of six months stipulated time and the first-defendant gave opportunity to the plaintif to pay balance sale consideration amount and to get execute sale deed. But the plaintif was not ready and willing to pay the balance sale consideration amount and to get execute sale deed. Since the plaintif was not always readiness and willingness to perform his part of contract, the plaintif is not entitled for specific performance of agreement of sale and also cancellation of registered sale deed executed by first-defendant in favour of second-defendant. As per the terms and conditions of Ex.A1 both the parties agreed if either party fails to comply the terms and conditions of the sale agreement then such party shall bear the expenses of damages of his own negligence. Since the plaintif was not always ready and willing to perform his part of contract he has to bear expenses of damages of his own negligence as agreed under Ex.A1. The plaintif should not blame the first-defendant that he was not ready and willing to perform his part of contract. The evidence clearly shows that the first-defendant was ready and willing to perform his part of contract, as such he got issued legal notice under Ex.A2 and gave two days time to the plaintif to pay balance 14 sale consideration and to get execute sale deed. Therefore, the plaintif is not entitled for specific performance of agreement of sale and also for cancellation of sale deed executed by first-defendant in favour of second defendant.
27.The trial court after properly assessing the oral and documentary evidence adduced by both parties rightly dismissed the suit which is sustainable in law and on facts. Therefore, there is necessity to interfere with the Judgment and Decree passed by the trial Court in OS No.43 of 2005. The appeal filed by the appellant/plaintif is devoid of merits and the same is liable to be dismissed.
28.In the result, the appeal is dismissed without costs by confirming the
Decree and Judgment passed by trial Court in OS No.43 of 2005, dated 29th April, 2016.
Dictated to the Stenographer Grade-I, transcribed by him, corrected and
pronounced by me in the Open Court on this the 8 th day of February, 2019.
VII Addl. District Judge, Sangareddy.
FAC VIII Addl. District Judge, Medak.
Additional evidence
-Nil-
VII Addl. District Judge, Sangareddy.
FAC VIII Addl. District Judge, Medak.