1 OS 93/2015
dt:11.04.2022
IN THE COURT OF THE DISTRICT JUDGE :: ANANTHAPURAMU
Present : Smt. Aruna Sarika,
District Judge, Ananthapuramu
Monday, this the 11th day of April, 2022
ORIGINAL SUIT No.93/2015
Between:
Yeddula Nagi Reddy S/o late Y. Narasimha Rreddy, 54 years, Hindu, agriculturist and business, residing at D.No.1-67-4A1, Rajendra Prasad Street, Kadiri Post and Mandal, Ananthapur District
.. Plaintiff
A n d
1. Somagattu Raveendra Reddy S/o S. Papi Reddy, 51 years, Hindu, agriculturist, residing at H.No.1-68-2B, Rajendra Prasad Street, Kadiri Post and Mandal.
2. Devireddi Nagi Reddy S/o D. Narasimha Reddy, 55 years, Hindu, agriculturist, residing at D.No.5-116-A, Banancheuvupalle, Malameedapalle Post, Gandlapenta Mandal, now residing near D.No.1-67- 4-A, Ramakrishna Dyana Mandir Rajendra Prasad Street, Kadiri Post and Mandal.
3. Devireddi Hanumantha Reddy S/o D. Nagi Reddy, 30 years, Hindu, agriculturist, residing at Bananheruupalle alaeedapalle Post, Gandlapenta Mandal
4. Devireddi Janardhan Reddy S/o Nagi Reddy, 27 years, Hindu, agriculturist, residing at Banancheruvupalle, Malameedapalle Post, gandlapenta Mandal (Defendants 3 and 4 are added as per orders in IA No.1539/201 dated 24.04.2017)
.. Defendants
This original suit coming on 06.04.2022 for final hearing before me in the presence of Sri K. Lakshmanachar, Advocate for the plaintiff and of Sri K. Nagi Reddy, Advocate for the defendants, and on hearing both sides and having stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
1) This original suit is filed by the plaintiff against the defendants No.1 to 4 for specific performance of contract i.e. agreement of sale dated 11.08.2014 and 20.04.2015 directing the defendants No.1 and 2 to receive the balance of sale consideration of Rs.21,00,000/- from the plaintiff and defendant No.1 to execute registered sale deed in favour of the plaintiff with regard to suit schedule property i.e.
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Property situate within Ananthapur District, Hindupur R.D. and Kadiri S.R.D. and within the limits of Kadiri revenue village, Kadiri Municipal area. Govt. Dry S.No.609-2 Ac.0-78 cents located in Rajendra Prasad Street, Kadiri town in Sree Ramakrishna Dhyana Mandiram Road, measuring 100 Sq yards and a newly constructed house door number not assigned within the following boundaries: East: House of S. Raveendra Reddy; South: Open site of Dudde Venkatesu; West: Open site of Chinnaiah Setty; North: Dhyana Mandiram Road, Measuring East-West: 15 feet and North-South: 50 feet i.e. 100 sq. yards and the constructions made therein in 900 sq. feet including doors, door frames, bore well, water rights, motor, starter, service connection, etc. full. Half share in eastern side wall and full share in other walls.
And to deliver possession of the suit schedule property to the plaintiff and in default the liberty may be given to the plaintiff to get the same through the process of law or in alternative to direct the defendants to refund the advance amount with interest therein at 24% p.a. i.e. Rs.12,23,000/- with future interest thereon on Rs.12,00,000/- from the date of suit till date of realization and to award costs of the suit.
2) Initially, the suit is filed against defendant Nos.1 and 2 only and vide orders dated 24.04.2017 passed in IA No.1539/2016 the defendants No.3 and 4 were brought on record and made consequential amendments to the plaint by way of inserting para 9A. Subsequently, the plaint was again amended vide orders dated 27.01.2020 made in IA No.1662/2019 and inserted paras 9B, 10A, amendment at para 11 and amendment to relief.
3) The brief averments of the plaint are as follows: “Defendant No.1 is the true and absolute owner and in possession and enjoyment of suit schedule property in his own right. On 11.08.2014 defendant No.1 entered into a contract with defendant No.2 agreeing to sell the suit schedule property to defendant No.2 for a sum of Rs.35,50,000/- and received a sum of Rs.15,00,000/- as part of the sale consideration in advance and executed agreement of sale dated 11.08.2014 in favour of defendant No.1. As per the terms of the said agreement of sale, defendant
No.1 agreed to receive the balance of sale consideration of Rs.20,50,000/- 3 OS 93/2015
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from defendant No.2 and execute registered sale deed with regard to suit schedule property in favour of defendant No.2 or the person of his choice and deliver possession of the property within three months from the date of said agreement of sale. Defendant No.1 received a sum of Rs.5,00,000/- on 27.11.2014 and another sum of Rs.5,00,000/- on 10.03.2015 towards balance sale consideration from defendant No.2 and endorsed the said payments on the back of the said agreement of sale dated 11.08.2014.
Thus though three months time is stipulated in the said agreement dated 11.08.2014 for performance of contract, time is not made and treated as essence of the contract. Subsequently, the defendant No.2 entered into a contract with plaintiff agreeing to sell the suit schedule property to the plaintiff for a sum of Rs.33,00,000/-. On 20.04.2015 the defendant No.2 received a sum of Rs.12,00,000/- from the plaintiff as part of sale consideration in advance and executed agreement of sale dated 20.04.2015 in his favour. As per the terms of agreement of sale, defendant
No.2 agreed to receive the balance of sale consideration of Rs.21,00,000/- from the plaintiff and get the registered sale deed with regard to the suit schedule property executed by defendant No.1, the true owner of the property, in favour of plaintiff or his nominee and deliver possession of the property within three months from the date of the said agreement of sale.
The defendant No.2 has also handed over the agreement of sale dated 11.08.2014 executed by defendant No.1 in favour of defendant No.2 to the plaintiff. As per the agreement of sale dated 11.08.2013 and the payment endorsements dated 27.11.2014 and 10.03.2015, the defendant No.1 has received a sum of Rs.25,00,000/- as part of sale consideration out of the sale consideration of Rs.35,50,000/- from the defendant No.2 and defendant No.1 is bound to receive the balance of sale consideration of
Rs.10,50,000/- from defendant No.2 and execute registered sale deed in favour of defendant No.2 or his nominee with regard to the suit schedule property. As defendant No.2 has executed the agreement of sale dated 4 OS 93/2015
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20.04.2015 in favour of the plaintiff and virtually defendant No.2 has transferred his rights under the agreement of sale dated 11.08.2014 in favour of the plaintiff agreeing to receive the balance of sale consideration of Rs.21,00,000/- from the plaintiff and get registered sale deed executed through the rightful owner i.e. defendant No.1 with regard to the suit schedule property. Hence, the plaintiff by virtue of the said agreements of sale dated 11.08.2014 and 20.04.2015 became entitled to enforce the same and obtain the registered sale deed. The agreement dated 20.04.2015 was executed on stamps worth Rs.20/- and the plaintiff will pay stamp duty penalty at the time of trial or as and when directed by the court. Virtually defendant No.1 is also quite aware of the agreement of sale dated 20.04.201 executed y the defendant No.2 in favour of plaintiff.
The plaintiff was and is ready and willing to perform his part of contract under the agreements dated 11.08.2014 and 20.04.2015. The plaintiff made demands on defendants No.1 and 2 to receive the balance sale consideration from him and get the registered sale deed executed by defendant No.1 in his favour. But defendant Nos.1 and 2 have been postponing the performance of their part of contract on some pretext or the other. Hence, the plaintiff was prone to issue registered legal notice dated 1.5.2015 informing the defendants No.1 and 2 about his readiness and willingness to perform his part of contract and requiring them to be present at the office of Sub-Registrar, Kadiri on 19.06.2015 and further informing them that he will be present on that date from 10.00 A.M.
onwards waiting for their arrival to perform their part of contract under the above said agreements of sale. But defendants No.1 and 2 gave replies individually through different counsels both dated 08.06.2015 alleging that defendant No.1 did not execute the agreement of sale dated 11.08.2014 in favour of defendant No.2, but executed in favour of one
Devireddi Janardhan Reddy of Banancheruvupalle and so also defendant
No.2 alleged that he did not enter into any agreement of sale with 5 OS 93/2015
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defendant No.1 and he never executed agreement of sale dated 20.04.2015 in favour of the plaintiff. A glance at those reply notices clinches the collusiveness among the defendants 1 and 2 in getting the notices issued through two different counsels but the corrections in those notices were made by one and the same counsel i.e. the counsel for defendant No.1, the rightful owner of the property. In the above circumstances, as the defendants No.1 an 2 for the first time on 08.06.2015 through their replies have been refusing to oblige the legitimate request of the plaintiff to perform their part of contract under the above said agreements of sale, the plaintiff is prone to file the suit for specific performance of the contract under the agreements of sale dated 18.10.2014 and 22.04.2015. The defendants 3 and 4 are close associates of defendants No.1 and 2 and they are also quite aware of the agreement of sale executed by defendant No.1 in favour of defendant No.2 and further defendant No.2 executing the registered agreement of sale dated 20.04.2015 in favour of plaintiff regarding the suit schedule property and his right to obtain the registered sale deed as per the said agreements. While so, recently the plaintiff came to know that the defendants No.1 to 4 have colluded together and brought out a registered sale deed dated 17.07.2015 with regard to the suit schedule property purported to have been executed by defendant No.1 in favour of defendants No.3 and 4 with all false recitals therein. The said sale deed is not true, valid, legal and binding on the plaintiff. The recitals in the alleged sale deed are all false and frivolous. There was no delivery of possession of the property effected. The said sale deed is not intended to be acted upon nor is it acted upon. Notwithstanding that sale deed, the defendant No.1 is in effective possession and enjoyment over the suit schedule property. The said sale deed is nominal and no consideration has passed under the alleged sale deed. The said sale deed does not affect the rights of the plaintiff under the suit agreement of sale. Further the defendants No.3 and 4 are not at all bonafide purchasers for value without 6 OS 93/2015
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notice of the suit agreements of sale dated 11.08.2014 and 20.02.2015. As the registered sale deed dated 17.07.2015 regarding the suit schedule property in favour of the defendants No.3 and 4 is brought into existence subsequent to the suit agreements of sale dated 11.08.2014 and 20.04.2015, the suit agreement of sale in favour of plaintiff is valid and binding on the defendants No.3 and 4 also and hence they are also bound to join defendants No.1 and 2 in executing the registered sale deed in favour of the plaintiff. The plaintiff learnt that on the basis of the alleged sale deed, the defendants have been making efforts to create some more documents in order to involve the matter in complications and defeat the legitimate rights of the plaintiff under above agreements of sale dated 11.08.2014 and 20.04.2015. The defendants have no right to do so. In the said circumstances, the defendants No.3 and 4 are also proper and necessary parties to the suit to join the defendants No.1 and 2 and execute the registered sale deed in favour of the plaintiff regarding the suit schedule property. Hence, the defendants No.3 and 4 are added as proper and necessary arties to the suit. The defendants are quite aware of the suit agreement of sale dated 20.04.2015 executed by defendant No.2 in favour of the plaintiff. Inspite of it, the defendants No.1 to 4 during the pendency of the suit colluded together and brought into existence the registered sale deed dated 17.07.2015 purported to have been executed by defendant No.1 in favour of defendants No.3 and 4 regarding the suit schedule property with all false and incorrect allegations and with malafide intent to defeat the rights of the plaintiff in pursuance of the agreement of sale dated 11.08.2014 and 20.04.2015. Hence, in the facts and circumstances, the plaintiff, as an abundant caution, is prone to seek for the alternative relief of refund of the part of the sale consideration of
Rs.12,00,000/- received by respondent No.2 from the plaintiff on 20.04.2015 under the suit agreement of sale with past interest at the prevailing rate of 24% per annum till date of suit and future interest from 7 OS 93/2015
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the date of suit till realization as per the trade usage and custom not only against defendant No.2, but also against the other defendants No.1, 3 and 4 who are also quite aware of the transaction under the suit agreement of sale dated 20.04.2015 between the plaintiff and the defendant No.2 regarding the suit schedule property. The plaintiff was and even now ready and willing to perform his part of the contract. The Plaintiff is prepared to deposit into Court the balance of sale consideration to the credit of the suit as and when the court directs him to do so. Hence, the suit.”
4) The defendant No.1 filed his written statement, the averments made therein are as follows: “The defendant No.1 is the true and absolute owner and he is in exclusive possession and enjoyment of the suit schedule property in his own right is true and correct. The allegation that defendant No.1 entered into a contract with defendant No.2 agreeing to sell the suit schedule property in favour of defendant No.2 for a sum of
Rs.35,50,000/- and that defendant No.1 received an amount of
Rs.15,00,000/- from defendant No.2 as part of the sale consideration as advance and executed the agreement of sale dated 11.8.2014 in favour of defendant No.2 is false and denied. The further allegation that as per the terms of the agreement, defendant No.1 agreed to receive the balance amount of sale consideration of Rs.20,50,000/- within three months from the date of agreement of sale from defendant No.2 and further agreed to execute the registered sale deed in favour of defendant No.2 or of the person of his choice and to deliver possession of the property to them are all false and denied. The other allegation that defendant No.1 received an amount of Rs.5,00,000/- from defendant No.2 on 27.11.2014 and another sum of Rs.5,00,000/- on 10.03.2015 towards the balance amount of sale consideration and endorsed the payments on the back of the agreement of sale are false and denied. The further allegation that time is not made and treated as the essence of the contract is false and denied. The allegation 8 OS 93/2015
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that defendant No.2 entered into a contract with the plaintiff agreeing to sell the suit schedule property for a sum of Rs.33,00,000/- and received an amount of Rs.12,00,000/- as advance on 20.04.2015 and executed the agreement of sale dated 20.04.2015 in favour of the plaintiff is not to the knowledge of defendant No.1 and the same is false and denied. The further allegation That as per the terms of the agreement of sale, defendant
No.2 agreed to receive the balance amount of sale consideration of
Rs.21,00,000/- within three months from the date of the agreement of sale from the plaintiff and further agreed to get the registered sale deed executed by defendant No.1 in favour of the plaintiff or his nominee and deliver possession of the property are all false and denied. The allegation that defendant No.2 delivered the custody of the original agreement of sale
dated 11.08.2014 executed by defendant No.1 in favour of defendant No.2
to the plaintiff are false and denied. The allegation that defendant No.2 executed the agreement of sale dated 20.04.2015 in favour of the plaintiff and virtually defendant No.2 has transferred his rights under the agreement of sale dated 11.8.2014 in favour of the plaintiff agreeing to receive the balance of sale consideration for Rs.21,00,000/- from the plaintiff and get the registered sale deed executed through the rightful owner i.e. defendant No.1 regarding the suit schedule property and that the plaintiff became entitled to enforce the same and to obtain the registered sale deed are all false and denied. The allegation that defendant
No.1 is quite aware of the agreement of sale dated 20.04.2015 executed by defendant No.2 in favour of the plaintiff is false and denied. The further allegation that the plaintiff is ready and willing to perform his part of the contract under the agreements of sale dated 11.08.2014 and 202.04.2015 and that the plaintiff made demands on defendant Nos.1 and 2 for the defendant No.1 to receive the balance of sale consideration from him and get the registered sale deed executed by defendant No.1 in his favour and that the defendants No.1 and 2 are postponing the performance of their 9 OS 93/2015
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part of contract under one pretext or the other are false and denied. The reply notices clinch the collusiveness among the defendants No.1 and 2 in getting the notices issued through two different counsels are false and denied. The allegation that the plaintiff was and is ready and willing to perform his art of the contract and that he is prepared to deposit the balance of sale consideration into the Court are false and denied. There is no cause of action for filing the suit and the alleged cause of action mentioned in the plaint is false and denied. The defendant No.1 submitted that he never entered into any agreement of sale with defendant No.2 much less on 11.8.2014 agreeing to sell the suit property for an amount of
Rs.35,50,000/- and never received Rs.15,00,000/- as advance. The defendant No.1 never executed the agreement of sale deed dated 11.8.2014 in favour of defendant No.2. Further, defendant No.1 never received an amount of Rs.5,00,000/- on 27.01.2015 and another sum of
Rs.5,00,000/- on 10.03.2015 from defendant No.2 and defendant No.1 never endorsed the payments on the agreement of sale dated 11.8.2014.
He denied all the allegations made contra. The defendant NO.1 is not aware of any agreement of sale entered between the plaintiff and defendant
No.2. Even otherwise, the alleged agreement of sale is not binding on defendant No.1 and defendant No.1 has no obligation or privity of contract to execute any sale deed in favour of the plaintiff. Further, the very allegation in the plaint that defendant No.2 agreed to purchase the suit schedule property for Rs.35,50,000/- from defendant No.1 on 11.08.2014 and that the plaintiff agreed to purchase the suit property for
Rs.33,00,000/- from defendant No.2 on 20.04.2015 are contradictory and no sane man will sell the property for a lesser price than his purchase price. Further, the stamps on which the plaintiff obtained his agreement from the defendant No.2 speaks volume about the circumstances under which the said agreement was brought into existence. In any event, since defendant No.1 is not a party to the agreement of sale dated 20.04.2015, 10 OS 93/2015
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he is not bound by the said agreement and the plaintiff cannot enforce the said agreement against defendant No.1. Further, since the plaintiff is not a party to the agreement of sale dated 11.08.2014, he cannot insist the enforcement of the said agreement by defendant No.1. The suit agreement
dated 11.8.2014 is a manipulated document and defendant No.1 never
signed on the said agreement and he never received any consideration much less Rs.15,00,000/- on 11.08.2014. Further, defendant No.1 never received an amount of Rs.5,00,000/- on 27.11.2014 and another amount of Rs.5,00,000/- on 10.03.2015 and never endorsed the same on the back of the said agreement and all the alleged signatures on the alleged agreement of sale dated 11.08.2014 are rank forgery and are not supported by consideration. The defendant No.1 sold away the suit property in favour of one Hanumantha Reddy and Janardhana Reddy of
Banancheruvu palli village and put them in possession of the same. Thus, defendant No.1 is neither having subsisting title nor possession over the suit property. Defendant No.2 is not entitled to transfer his alleged right of specific performance under the alleged agreement of sale dated 11.08.2014 in favour of others and the same is not contemplated under the terms mentioned in the alleged agreement of sale dated 11.08.2014. The suit is devoid of merits and is liable to be dismissed with costs against defendant
No.1 in the interest of justice.”
5) The defendants No.2 to 4 were set ex parte and remained ex parte.
6) Taking into consideration of the above pleadings, one of my predecessors in office, framed the following issues for trial:
1. Whether the agreement of sale dated 11.08.2014 between the 1st and 2nd defendants and passing of consideration there under from 2nd defendant to 1st defendant is true, valid and binding on the 1st defendant?
2. Whether the agreement of sale dated 20.04.2015 relied on by the plaintiff said to have been executed by defendant No.2 in favour of plaintiff and passing of art of consideration of Rs.12,00,000/- there under is true, valid and binding on the 1st defendant?
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3. Whether there is privity of contract between the plaintiff and 1st defendant and whether the plaintiff is entitled to seek for specific performance of agreement of sale dated 20.04.2015 and 11.08.2014 against the 1st defendant?
4. Whether the suit is bad for non joinder of the alleged alienees Hanumantha Reddy and Janardhana Reddy of Banancheruvu palli village?
5. Whether the 2nd defendant is entitled to transfer his rights if any under agreement of sale dated 11.08.2014 in favour of others in general and in favour of plaintiff in particular either on facts or under law?
6. Whether the plaintiff is entitled for decree of specific performance against the defendants or for any other relief?
7. To what relief?
As referred supra, the plaintiff initially filed the present suit against defendants No.1 and 2 seeking specific performance of agreements of sale
dated 11.08.2014 and 20.04.2015 against the defendants No.1 and 2.
Later he filed IA No.1539/2016 to bring the defendants No.3 and 4 as parties to the suit and the said IA was allowed and defendants No.3 and 4 are added as parties to the suit. Later, he filed IA No.1662/2019 to amend the suit and accordingly sought alternative relief to direct the defendants to refund the advance amount with interest thereon at 24% p.a. i.e.
Rs.12,23,200/- with future interest thereon Rs.12,00,000/- from the date of suit till date of realization and the said IA was allowed.
Basing on the amended pleadings, the following additional issue was framed:
Alternatively, whether the plaintiff is entitled to a decree directing the defendants to refund the advance amount of Rs.12,00,000/- with interest at 24% per annum from the date of agreement till the date of suit and future interest from the date of suit till the date of realization?
7) During the course of trial, the plaintiff himself was examined as
PW.1 and marked Exs.A1 to A9 on his behalf. The plaintiff also examined one Vemula Venkatarami Reddy S/o V. Jayarami Reddy as PW.2. The defendant No.1 himself was examined as DW.1 and no documents were 12 OS 93/2015
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marked on his behalf. Defendants Nos.2 to 4 were remained exparte and did not choose to cross-examine the witnesses examined on behalf of plaintiff and defendant No.1.
8) I have heard the submissions of both sides. I have perused the material on record including the written arguments submitted on behalf of plaintiff and legal authorities submitted on behalf of defendant No.1.
9) The learned counsel for plaintiff argued that that the defendant No.1 being owner of the suit schedule property, agreed to sell the same to the defendant No.2 under Ex.A.1 and in turn the defendant No.2 sold the suit property to the plaintiff under Ex.A.3 agreement of sale, but the defendant
No.2 failed to execute proper registered sale deed in favour of plaintiff, and the defendants 1 and 2 colluded together and during the pendency of suit, nominal, sham an collusive sale deed is created for the suit property by defendant No.1 in favour of defendants 3 and 4, who are none other than the sons of defendant No.2, and therefore all the defendants colluded together, cheated the plaintiff, extracted advance amount under Ex.A.3 and failed to perform their part of contract. He further submitted that the plea of DW.1 is that Exs.A.1 to A.4 are forged documents, but except his self-serving sworn statement, no other evidence is placed by DW.1 showing the circumstances under which the above said documents are forged, and therefore, DW.1 failed to discharge his burden, and evidence of PWs.1 to 3 and suggestion put by defence counsel to the PW.1 in his cross- examination proves execution of Ex.A.3 agreement by the defendant No.2 in favour of plaintiff, and other circumstances shows that the real owner i.e. DW.1 executed ExsA.1 to A.3 documents in favour of defendant No.2, therefore, there is privity of contract between DW.1 and plaintiff. He further argued that defendant No.1 has taken plea of forgery, but he did not take any steps to send Exs.A.1 to A.4 documents to the expert for examination and report, and therefore, DW.1 failed to discharge his 13 OS 93/2015
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burden of proving plea of forgery. In support of his contention, he relied upon the following decisions :
(1) R.Rangaswamy Vs. K.M.Subramaniam (2) Natber Behara Vs. Balakrishna Das [1999 (II) OLR 319 Orissa] (3) Rattan Singh Vs. Nirmal Gill [2020 SCC OnLine SC 936]
He rests his arguments praying to decree the suit for specific performance of Ex.A.3, or in alternative, refund of advance amount paid by him to the defendant No.2 with costs.
10) The counsel for defendant No.1 argued that the defendant No.1 even denied the execution of agreement of sale with defendant No.2, and the plaintiff cannot seek for the relief of specific performance of agreement of sale against defendant No.1 since he is not a party to the said agreement, and further the 2nd defendant has not joined with the plaintiff in fling the present suit. He further argued that the 2nd defendant never authorized the plaintiff to file a suit against him basing on Ex.A.1 agreement of sale or never authorized the defendant No.1 to obtain a sale deed from him, and if
Ex.A.1 agreement is proved to be true, the same cannot be enforced against the plaintiff. He further argued that the suit agreement and the endorsements under Exs.A.2 and A.4 are forged and fabricated. He further argued that an essential ingredient in a suit for specific performance is that there must be privity of contract between the person who holds the title to the property and the plaintiff. In support of his contention, he relied upon the following decision:
(1) Tarigoppula Kondala Rao and another Vs. Dodda Venkateswara Reddy and others [2011 6 ALD 126]
Finally, he rests his arguments praying the court to dismiss the suit with costs.
11) Before taking up of issues for determination, it is necessary to mention that pleadings of both sides were already extracted supra in detail. Hence, the same are not re-stated.
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12) ISSUE NOs.1 to 6 and ADDITIONAL ISSUE:-
(a) Since the present suit is filed seeking specific performance of agreement of sale involving immovable property, it is necessary to refer the documentary evidence marked on behalf of plaintiff before scrutinizing the evidence adduced on behalf of plaintiff. A perusal of Ex.A1, agreement of sale dated 11.8.2014, would show that it was executed by one Somagattu
Ravindra Reddy (defendant No.1 herein) in favour of one Devi Reddy Nagi
Reddy (defendant No.2 herein) agreeing to sell the property therein (suit schedule property herein) for a sum of Rs.35,50,000/- and received an amount of Rs.15,00,000/- towards advance and the balance sale consideration of Rs.20,50,000/- has to be paid within three months and if the vendee fails to pay the balance sale consideration within the stipulated time, he will not have any right either on advance amount or on the property. A perusal of Ex.A2, part payment dated 27.11.2014, would show that S. Raveendra Reddy received an amount of Rs.5,00,000/- from Devi
Reddy Nagi Reddy with regard to the above agreement of sale. A perusal of
Ex.A3, original agreement of sale dated 20.04.2015, would show that one
Devireddy Nagi Reddy (defendant No.2 herein) executed the same in favour of Y. Nagi Reddy (plaintiff herein) agreeing to sell the property therein (suit schedule property herein) for a sum of Rs.33,00,000/- and receiving an amount of Rs.12,00,000/- towards advance. It further shows that if the vendee therein pays the remaining sale consideration of Rs.21,00,000/- with three months, the vendor will execute registered sale deed. If the vendee fails to pay the balance sale consideration amount within the stipulated period, he will have no right on the advance amount. A perusal of Ex.A4, part payment dated 10.03.2015, would show that S. Raveendra
Reddy received an amount of Rs.5,00,000/- from Devi Reddy Nagi Reddy with regard to the above agreement of sale. A perusal of Ex.A5, legal notice
dated 01.06.2015, would show that the same was issued on behalf of
plaintiff herein to the defendants No.1 and 2 informing them that he will 15 OS 93/2015
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be present at Sub-Registrar Office, Kadiri on 19.06.2015 from 10.00 A.M.
onwards or any other date convenient to them which should be intimated to him in advance, receive the balance sale consideration and execute registered sale deed in his favour, failing which he will be constrained to file suit against them for specific performance of contract of agreement of sale and they will be liable for costs and consequences thereof. A perusal of Ex.A6, two postal receipts, would show that they were issued in the name of Ravindra Reddy and Nagi Reddy of Kadiri. A perusal of Ex.A7, reply notice dated 8.6.2015 issued on behalf of defendant No.1 to the plaintiff, would show that he denied all the allegations mentioned in the legal notice issued by plaintiff and stated that there is no transaction between him and plaintiff and there is no need to him to present at Sub-
Registrar Office, Kadiri etc. A perusal of Ex.A8, reply notice dated 8.6.2015 issued on behalf of defendant No.2 to the plaintiff, would show that he denied all the allegations mentioned in the legal notice issued by plaintiff and stated that there is no transaction between him and plaintiff and there is no need to him to present at Sub-Registrar Office, Kadiri etc.
A perusal of Ex.A9, sale deed dated 17.07.2015, would show that the same was executed by Somagattu Ravindra Reddy (defendant No.1 herein) in favour of (1) D. Hanumantha Reddy and (2) D. Janardhana Reddy (defendants No.3 and 4) who are sons of Devireddy Nagi Reddy (defendant
No.2 herein) in respect of suit schedule property herein.
(b) Coming to the oral evidence adduced on behalf of plaintiff, as referred supra, the plaintiff himself was examined as PW.1 and marked
Exs.A1 to A9. PW.1 in his chief examination which was taken in the form of solemn sworn affidavit had reiterated his pleaded case and transcribed the same into direct evidence. PW.1 also filed his additional chief affidavit in the form of solemn sworn affidavit deposing that the defendants are quite aware of the suit agreement of sale dated 20.04.2015 executed by defendant No.2 in favour of the plaintiff. Inspite of it, the defendants No.1 16 OS 93/2015
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to 4 during the pendency of the suit colluded together and brought into existence the registered sale deed dated 17.07.2015 purported to have been executed by defendant No.1 in favour of defendants No.3 and 4 regarding the suit schedule property with all false and incorrect allegations and with malafide intent to defeat the rights of the plaintiff in pursuance of the agreement of sale dated 11.08.2014 and 20.04.2015. Hence, in the facts and circumstances, the plaintiff, as an abundant caution, is prone to seek for the alternative relief of refund of the part of the sale consideration of Rs.12,00,000/- received by respondent No.2 from the plaintiff on 20.04.2015 under the suit agreement of sale with past interest at the prevailing rate of 24% per annum till date of suit and future interest from the date of suit till realization as per the trade usage and custom not only against defendant No.2, but also against the other defendants No.1, 3 and 4 who are also quite aware of the transaction under the suit agreement of sale dated 20.04.2015 between the plaintiff and the defendant No.2 regarding the suit schedule property. In his first spell of cross- examination, he admitted that he is not party to Ex.A1. He did not see defendant No.2 paying Rs.15 lakhs to defendant No.1 as advance under
Ex.A1. Defendant No.2 did not pay Rs.5 lakhs on 27.11.2014 in his presence under Ex.A2. The sale consideration fixed under Ex.A1 is
Rs.35,50,000/-. He deposed that defendant No.2 agreed to sell the suit schedule property to him under Ex.A3 for Rs.33,00,000/-. He stated that defendant No.2 did not demand defendant No.1 to execute sale deed either any favour or in his favour in pursuance of Ex.A1. PW.1 admitted that defendant No.1 is not party to Ex.A3 and defendant No.1 is not aware of his paying Rs.12 lakhs as advance to defendant No.2 under Ex.A3. He further deposed that the balance sale consideration payable under Ex.A3 is Rs.21 lakhs. He stated that he is having Rs.21 lakhs with him and the said amount is with his son at Hyderabad. He stated that he is not maintaining account in bank. His son is working as contractor and is 17 OS 93/2015
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maintaining account in Agricultural Development Bank and State Bank of India, Hyderabad. He further deposed that Rs.3 or 4 lakhs balance will be available in the accounts of his son. He did not file any document to show that he is having 21 lakhs with him on the date of the suit. The rest of the cross-examination of PW.1 in his first spell is nothing but suggestions to the effect that defendant No.1 did not enter into Ex.A1 with defendant No.2 and defendant No.2 did not pay any amount under Ex.A1 and Ex.A2 to defendant No.1, that Ex.A3 was fabricated by him and defendant No.2, that even now the suit property is in possession of defendant No.1, that he did not enter into any contract with defendant
No.1 and there is no privity of contract between him and defendant No.1, that he has no right to demand defendant No.1 to execute sale deed in his favour, that defendant No.2 did not execute Ex.A3 in his favour and he did not pay any amount to defendant No.2 under Exs.A3 and A4, and PW.1 denied the same as not true. In his cross-examination in second spell,
PW.1 deposed that he verified Ex.A1 before executing Ex.A3. He admitted that Ex.A1 was executed on 11.08.2014 and in Ex.A1 it is agreed that within 3 months the defendant No.2 has to pay balance amount of sale consideration and get the land registered in his favour or in favour of his choice and the defendant No.2 failed to comply the terms of Ex.A1, the advance amount will be forfeited and Ex.A1 will become infructious. He admitted that he obtained Ex.A3 on 20.04.2015 and there is no endorsement in Ex.A1 that the defendant No.2 has paid balance sale consideration of Rs.20,50,000/- within three months from the date of
Ex.A1. The rest of the cross-examination of PW.1 is nothing but suggestions to the effect that his agreement Ex.A3 is not valid as Ex.A1 become infructious and that therefore he is not entitled for refund of advance amount paid under Ex.A3.
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c) The plaintiff examined V. Venkatarami Reddy S/o V. Jayarami
Reddy as PW.2. PW.2 in his chief examination which was taken in the form of solemn sworn affidavit, in support of the case of the plaintiff, had deposed that he knows plaintiff and defendants in the suit. The plaintiff filed the suit against defendants for specific performance of the agreement of sale dated 20.04.2015. On 20.04.2015 the defendant No.2 agreed to sell the schedule mentioned property belonging to defendant No.1 to the plaintiff for Rs.33,00,000/-. On the same day i.e. on 20.04.2015, the defendant No.2 received from the plaintiff a sum of Rs.12,00,000/- towards part of the sale consideration. The defendant No.2 agreed to receive the balance of sale consideration of Rs.21,00,000/- from the plaintiff within three months i.e. on or before 20.07.2015 and execute the registered sale deed through defendant No.1 with regard to the suit schedule property in his favour. PW.2 further deposed that the defendant
No.2 executed the agreement of sale dated 20.04.2015 in favour of the plaintiff incorporating the above facts and terms in the presence of himself,
B. Sahadeva Reddy S/o Narayana Reddy, Velugutipalli. The said agreement of sale is scribed by D.T. Vasu, Document Writer, Kadiri. PW.2 further deposed that himself, B. Sahadeva Reddy attested the agreement of sale dated 20.04.2015. In his cross-examination, PW.2 deposed that he is resident of Pulivendula. The plaintiff is his distant relative. He does not know the education qualifications of plaintiff, but he specifically stated that plaintiff knows affixing signature. He affixes his signatures in Telugu language. He further deposed that he did not observe plaintiff affix his signature in Ex.A3 executed on 20.4.2015. On 20.024.2015 he came down to Kadiri as his relatives entered into partition and to prepare partition deed. He deposed that plaintiff gave Rs.12 lakhs to defendant
No.2 on 20.04.2015 in cash. He cannot say the denomination of Rs.12 lakhs given by plaintiff. He does not know from where plaintiff secured
Rs.12 lakhs on 20.04.2015. He does not know even now how much 19 OS 93/2015
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amount plaintiff is having. He has no acquaintance with defendant No.2 prior to 20.04.2015. He saw defendant No.2 on 20.04.2015 for the first time and never saw thereafter. He does not know how defendant No.2 acquired suit property. He does not know whether defendant No.2 is the owner of suit property. The rest of the cross-examination of PW.2 is nothing but suggestions to the effect that plaintiff did not pay Rs.12 lakhs to defendant No.2 on 20.04.2015 and defendant No.2 is not the absolute owner of the suit property and he has no right to alienate the same, and
PW.2 denied the same as not true.
(d) Before scrutinizing the evidence of PWs.1 and 2 to determine whether the plaintiff could prove his case, it is just and proper to refer the evidence adduced on behalf of the sole contesting party i.e. defendant
No.1. As referred supra, defendant No.1 himself was examined as DW.1 and in his chief examination which was taken in the form of solemn sworn affidavit, he reiterated his pleaded case and transcribed the same into direct evidence. In his cross-examination, he deposed that he does not know the plaintiff and defendant No.2 namely Y. Nagi Reddy and D. Nagi
Reddy. He does not know where they are residing. He is not doing any real estate business. The evidence of DW.1 shows that the learned counsel for plaintiff confronted the signature on vakalat filed by defendant No.1 and he stated that the signature on it, is of him. The learned counsel for the plaintiff shown the signature on the suit summons to DW.1 and he denied one of the signatures on it, as of him. DW.1 admitted the signatures on written statement as of him but denied the signature on acknowledgement as of him. The evidence further shows that the learned counsel for plaintiff shown the signatures on Exs.A1 to A4 to DW.1 and he denied the said signatures as of him. DW.1 admitted that he received legal notice from an advocate before filing the present suit by the plaintiff. He did not get read the said notice to know the contents of it. He does not know the contents of notice. He has not given any reply notice to the said 20 OS 93/2015
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legal notice. DW.1 admitted that he sold the suit schedule property to defendants No.3 and 4. He does not know whether defendants No.3 and 4 are the sons of defendant No.2. DW.1 admitted that he has not lodged any complaint against the plaintiff or defendant No.2 that they got forged his signatures and created Exs.A1 to A4. He admitted that in Ex.A1 it is mentioned that “the schedule property will be registered either in your name or in the name of the person on your choice”. After admitting so,
DW.1 volunteered that he did not execute Ex.A1. The rest of the cross- examination of DW.1 is nothing but suggestions in the lines of pleaded case of plaintiff and DW.1 denied the same as not true.
(e) A combined reading and scrutiny of PWs.1 and 2 and DW.1, Exs.A1 to A9 would show that the plaintiff though examined PW.2 as one of the attestors to Ex.A3, agreement of sale dated 20.04.2015, but a scrutiny of
Ex.A3 and the signature of PW.2 on his evidence made before this Court, the signature on Ex.A3 said to be as of V. Venkatarami Reddy S/o V.
Jayarami Reddy, 11th Ward, Pulivendula is not tallying with the signature of PW.2 made before this Court in his evidence. The plaintiff did not choose to confront Ex.A3 document with PW.2 to prove that PW.2 acted as one of the attestors to Ex.A3, agreement of sale dated 20.04.2015. The
Ex.A3 contains one thumb impression and a signature in English and a signature in Telugu as D. Nagi Reddy on both the papers that contained in
Ex.A3. Two witnesses attested the document one is by name (1) Vemula
Venatarami Reddy and (2) B. Sahadeva Reddy. A scrutiny of Ex.A3 would show that there is signature of Vemula Venkatarami Reddy, but there is no separate signature of the other attestor/witness namely B. Sahadeva
Reddy. As referred supra, the signature of Vemula Venkatarami
Reddy/PW.2 available in Ex.A3 is not tallying with his signature put in his evidence before the court. The evidence of PW.2 would show that he has no acquaintance with defendant No.2 prior to 20.04.2015 and he saw him on 20.04.2015 for the first time and never saw him thereafter. PW.2 in his 21 OS 93/2015
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chief examination that was taken in the form of solemn sworn affidavit had deposed that defendant No.2 executed the agreement of sale on 20.04.2015 in favour of the plaintiff incorporating the referred facts and terms in the presence of himself and B. Sahadeva Reddy S/o Narayana
Reddy, Velugutipalli. He even deposed that himself and B. Sahadeva
Reddy attested the agreement of sale dated 20.04.2015 and the said transaction is true and genuine. But the fact remains that the signature in Ex.A3 as that of PW.2 is not tallying with the signature of PW.2 put by him in his evidence before the Court. Admittedly, the plaintiff did not confront Ex.A3 document with PW.2. PW.2 even stated that he does not know how defendant No.2 acquired suit schedule property. Though he deposed in his chief examination that defendant No.2 agreed to receive the balance of sale consideration of Rs.21,00,000/- from the plaintiff within 3 months i.e. on or before 20.07.2015 and execute registered sale deed through defendant No.2 with regard to suit schedule property in his favour, a perusal of Ex.A3 would show that there is reference about unregistered agreement of sale said to be executed by Somagattu Ravindra
Reddy in favour of defendant No.2 herein and that the schedule property is in his possession, but the recitals of the document clearly shows that the parties to the agreement of sale agreed to conclude the agreement within three months from the date of this agreement of sale i.e. 20.04.2015. If we consider the recitals of Ex.A3, time is essence of Ex.A3 and the transaction covered under Ex.A3 should be concluded within three months from the date of Ex.A3 i.e. on or before 20.07.2015. When the signature of PW.2 is not tallying with the signature of Ex.A3 and when the plaintiff did not choose to examine the other attestor/witness to Ex.A3, it cannot be said that Ex.A3 is proved by the plaintiff.
(f) It is also pertinent to note here that it is the version of plaintiff that
Ex.A3 agreement of sale was executed by defendant No.2 in his favour.
Defendant No.2 was set ex parte and remained ex parte. It is further 22 OS 93/2015
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contention of plaintiff that defendant No.2 executed Ex.A3 basing on the agreement entered by him with defendant No.1 that was marked as Ex.A1.
On the other hand, defendant No.1 is specifically contending that he did not execute Ex.A1 agreement of sale dated 11.08.2014 in favour of defendant No.2. Under these facts and circumstances, the burden on the plaintiff to prove that Ex.A1 agreement of sale was executed by defendant
No.1 in favour of defendant No.2 and in turn defendant No.2 executed
Ex.A3 agreement of sale in his favour in respect of suit schedule property.
Except examining PW.2 who is said to be one of the attestors to Ex.A3, the plaintiff did not choose to examine any other person to prove the execution of Ex.A1 and so also Ex.A3. Though defendant No.2 was set ex parte and remained ex parte, the plaintiff can get him examined with the permission of the court to get the truth into light. The plaintiff did not do so. Though
PW.2 deposed that the plaintiff paid an amount of Rs.12,00,000/- to defendant No.2 towards part of the sale consideration, but he did not specifically deposed that the plaintiff has given said amount of
Rs.12,00,000/- in cash to defendant No.2 on 20.04.2015 in his presence.
Furthermore, he failed to give denomination of cash said to be given by the plaintiff. He not even knows from where the plaintiff secured the cash on 20.04.2015. The evidence of PW.1 with regard to his financial capacity would show that he has no capacity of his own either to pay
Rs.12,00,000/- or the remaining balance of Rs.21,00,000/- as he deposed that he is having Rs.21,00,000/- with his son at Hyderabad. Admittedly,
PW1 is not maintaining account in a bank. A person who is not maintaining account in a bank cannot be expected to deal transactions in lakhs of rupees. Even as per PW.1 himself, his son is maintaining accounts in Agricultural Development Bank and State Bank of India,
Hyderabad and 3 or 4 lakhs balance will be available in the account of his son. He had categorically deposed that he did not file any document to show that he is having Rs.21,00,000/- with him on the date of filing of the 23 OS 93/2015
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suit. There is nothing on record to prove that the plaintiff has really paid an amount of Rs.12 lakhs to defendant No.1. In the absence of cogent evidence on record, it cannot be said that the plaintiff has really paid an amount of Rs.12,00,000/- to the defendant No.2. In view of the above discussion coupled with reasons stated supra, it follows that the plaintiff failed to prove the very execution of Ex.A3 agreement of sale by defendant
No.2 in his favour and payment of Rs.12,00,000/- by him to defendant
No.2.
(g) The plaintiff is contending that defendant Nos.1 and 2 entered into an agreement of sale dated 11.08.2014 in respect of suit schedule property and in that process defendant No.2 paid an amount of Rs.15,00,000/- as part of sale consideration in advance to defendant No.1 and defendant
No.1 executed agreement of sale dated 11.08.2014 in favour of defendant
No.2. The defendant No.1 received a sum of Rs.5,00,000/- on 27.11.2014 and another sum of Rs.5,00,000/- on 10.03.2015 from defendant No.2 and made endorsement on the back side of the agreement of sale dated 11.08.2014. In turn, defendant No.2 agreed to sell the suit schedule property to the plaintiff and executed agreement of sale dated 20.04.2015 in his favour by receiving Rs.12,00,000/- from him. Now it is to determine whether the agreement of sale dated 11.08.2014 was really executed by defendant No.1 in favour of defendant No.2 and the same is true, valid and binding on defendant No.1. As referred supra, it is the contention of defendant No.1 that he never executed agreement of sale dated 11.08.2014 in favour of defendant No.2 by receiving an amount of Rs.15,00,000/- and here is no privity of contract between himself and plaintiff and therefore he is not at all liable to execute registered sale deed in favour of plaintiff as per the terms and conditions of agreement of sale dated 20.04.2015. The plaintiff himself was examined as PW.1 and he did not choose to examine any of the attestors to the agreement of sale dated 11.08.2014 or the defendant No.2 himself to prove that the agreement of sale dated 24 OS 93/2015
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11.08.2014 was really executed by defendant No.1 in favour of defendant
No.2. The evidence of PW.1 with regard to execution of sale deed dated 11.08.2014 that was marked as Ex.A1 cannot be considered as direct evidence as admittedly he is not a party to Ex.A1 or not even an attestor to the said document. The transaction covered under Ex.A1 as admittedly not done in the presence of plaintiff. As referred supra, the plaintiff did not choose to examine defendant No.2 who can speak about the execution of agreement of sale dated 11.08.2014 by defendant No.1 in his favour particularly when defendant No.1 is denied the very execution of Ex.A1 agreement of sale by him. When the plaintiff could discharge the initial burden of proving the said document under Ex.A1 as true and valid, then only the burden shifts on to defendant No.1 to disprove the same. The plaintiff being approached the Court of law has to stand on his own strength but not on the weaknesses on the side of defence. The plaintiff though cross-examined DW.1 who is none other than defendant No.1 herein, but failed to elicit that he has executed Ex.A1 agreement of sale in favour of defendant No.2. Defendant No.1 as DW.1 had categorically deposed that he does not know the plaintiff and defendant No.2 namely Y.
Nagi Reddy and D. Nagi Reddy and he not even knows where they are residing. DW.1 has denied the signatures on Exs.A1 to A4 shown to him as his signatures. Similarly, basing on the fact that DW.1 received legal notice from an advocate before filing the present suit by the plaintiff, it does not mean that defendant No.1 has acquaintance with plaintiff and defendant No.2 herein and that he executed Ex.A1 agreement of sale in favour of defendant No.2. Admittedly, the plaintiff is not party to agreement of sale dated 11.08.2014 that was marked as Ex.A1. The plaintiff as PW.1 admitted that there is no privity of contract between himself and defendant No.1. When that is so, no liability can be fixed against defendant No.1 basing on the agreement of sale dated 20.04.2015 that was marked as Ex.A3. It is also pertinent to note here that in Ex.A3 25 OS 93/2015
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though it is referred that defendant No.2 entered into an agreement with
Somagattu Ravindra Reddy and in pursuance of it he entered into
Ex.A3/agreement of sale, but there is no any particulars mentioned in
Ex.A3 about Ex.A1 agreement of sale like date of its execution, sale consideration, advance given etc. There is only reference that defendant
No.2 entered into agreement with Somagattu Ravinda Reddy. Except the same, no other particulars of said agreement alleged to be entered into by and between defendants No.1 and 2 are referred in E.A3. It is pertinent to note that the recitals of Ex.A1 agreement of sale dated 11.08.2014 would clearly show that the parties to Ex.A1 had agreed to complete the sale transaction within three months from the date of Ex.A1, if that is so, Ex.A1 transaction would be completed on or before 10.11.2014. The plaintiff is contending that defendant No.2 had paid an amount of Rs.5,00,000/- twice to defendant No.1 and an endorsement is also made on the back side of Ex.A1 to that effect. A perusal of Ex.A1 would show that two endorsements were there on the back side of Ex.A1 and the said endorsements were marked as Exs.A2 and A4 respectively. It shows that an amount of Rs.5,00,000/- was paid on 27.11.2014 and another
Rs.5,00,000/- as paid on 10.03.2015. As referred supra, defendant No.1 as DW.1 categorically denied the signatures in Ex.A1 to A4 as of his signatures. The plaintiff did not make any efforts to prove that the said signatures on Exs.A1, A2 and A4 are of defendant No.1. In the absence of such proof, it cannot be said that the endorsements under Ex.A2 and A4 are true and correct, particularly when the plaintiff failed to prove the very execution of Ex.A1 agreement of sale dated 11.08.2014 by defendant No.1 in favour of defendant No.2.
(h) At this juncture, it is also pertinent to note that as rightly argued by leaned counsel for defendant No.1, no person will sell the property with a less amount against the purchase amount of its. Ex.A1 shows that the sale consideration of amount is referred as Rs.35,50,000/- whereas in 26 OS 93/2015
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Ex.A3 the sale amount is referred as Rs.33,00,000/- only. Ex.A1 is dated 11.08.2014 and Ex.A3 is dated 20.04.2015. That means, Ex.A3 document seems to be within one year of Ex.A1 document. It cannot be said that within a span of one year the prices of property though not increased, but cannot be decreased. In Ex.A3, there is no reference that defendant No.2 intends to sell the suit schedule property for Rs.33,00,000/- only as against his purchase of Rs.35,50,000/-. These are the suspicious circumstances that create doubt in very execution of Ex.A1 to A4. In view of the above detailed discussion coupled with the reasons it follows that the plaintiff failed to prove that the agreement of sale dated 11.08.2014 under Ex.A1 was executed by defendant No.1 in favour of defendant No.2 and the same is true, valid and binding on defendant No.1.
(i) The learned counsel for the defendant No.1 argued that in a suit for specific performance, there must be privity of contract between the person, who holds the title to the property and the plaintiff. In support of his contention, he relied upon a decision made in the case of Tarigoppula
Kondala Rao and another vs. Dodda Venkateswara Reddy and others
[2011 6 ALD 126] wherein the Hon’ble High Court of Andhra Pradesh held as under:
“7. An essential ingredient in a suit for specific performance is that there must be privity of contract between the person, who holds the title to the property and the plaintiff. In the instant case, admittedly, the 2nd respondent was the owner of the property. The 1sat appellant did not have any privity of contract with him. It was pleaded that the 2nd respondent executed Ex.A1 in favour of the 1st respondent and that the latter in turn executed Ex.A2 in favour of the 1st appellant. Even if that is true, there is no scope for the 1st appellant to compel the 2nd respondent to execute sale deed. ……….. It is only when the 1st respondent had acquired title, that he could have executed an agreement of sale in favour of the 1st appellant.”
In the present case on hand, Ex.A1 and Ex.A3/agreement of sale dated 11.08.2014 and 20.04.2015 are time bound documents and time is essence of these two documents. Thus even if we assume for a moment that Ex.A1, A2 and A4 are true and correct, time is not the essence of 27 OS 93/2015
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contract by way of Ex.A2 and A4 i.e. receiving part payment after specified time; but Ex.A3 wherein the parties agreed to complete the transaction within three months from its date i.e. on or before 20.07.2015, but admittedly there is nothing on record to show that the plaintiff made any demand with defendant No.2 to execute his part of contract under Ex.A3 by receiving the balance sale consideration of Rs.21,00,000/- from the plaintiff. It is not the case of the plaintiff that after he paid Rs.12,00,000/- towards advance to defendant No.2, he paid some amount to defendant
No.2 after the stipulated period of 3 months i.e. 20.07.2015. However, the legal notice issued to defendant Nos.1 and 2 by plaintiff through his advocate which were marked as Ex.A5 and postal receipts as Ex.A6 dated 01.06.2015 shows that within three months from the date of Ex.A3, legal notice was issued. Except the said legal notice under Ex.A5, there is nothing on record to show that the plaintiff is ready with Rs.21,00,000/- and he offered the said amount to defendant No.2 to receive the same and get execute regular registered sale deed in his favour by defendant No.1 in pursuance of the terms and conditions of Ex.A3. Admittedly, there is no privity of contract between defendant No.1 and plaintiff. If at all there is any agreement, the same is with defendant No.2 by the plaintiff. As observed and held supra, the plaintiff failed to prove the very execution of
Ex.A3 dated 20.04.2015 by defendant No.2 in his favour and in such circumstances it cannot be said that the plaintiff is entitled to seek for specific performance of agreement of sale dated 20.04.2015 and so also the agreement of sale dated 11.08.2014 wherein the plaintiff is not party to it against the defendant No.1.
(j) The learned counsel for the plaintiff argued that the defendant No.1 has made a plea that the suit agreement dated 11.08.2014 is a manipulated document and he never signed on the said agreement and he never received any consideration much less Rs.15,00,000/- on 11.08.2014, that he never received an amount of Rs.5,00,000/- on 28 OS 93/2015
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27.11.2014 and another amount of Rs.5,00,000/- on 10.03.2015 and never endorsed the same on the back of the said agreement and all the alleged signatures on the alleged agreement of sale dated 11.08.2014 are rank forgery. When defendant No.1 has taken plea of forgery, the burden is on defendant No.1 and he failed to discharge the same. On this, relied upon a decision made in the case of R. Rangasamy Vs. K.M. Subramaniam (3rd Feb.2012) wherein the Hon’ble High Court of Madras held as under:
9. On the above basis, the learned trial Court has held from the overwhelming evidence available on record that the respondent/plaintiff has clearly discharged the initial burden that was required of him under law. Therefore, it was for the appellant/defendant, under such circumstances, to prove his forgery plea by producing acceptable evidence. If the appellant/defendant has been so sure about the forgery, he should have taken steps by filing an application for obtaining an opinion from Expert by comparing the thumb impression found in Ex.A.1. But, that has not been done. Under such circumstances, both the Courts below have correctly given the concurrent finding against the appellant/defendant.
The learned counsel for plaintiff also relied upon a decision made in a case of Natber Behara vs. Balakrishna Das [1999(II)OLR 319 Orissa] wherein the Hon’ble High Court of Orissa discussed with regard to (1) whether the report of a handwriting expert would come within the meaning of scientific investigation, thereby making Rule 10-A of the said Order applicable; (2) whether the report of the handwriting expert which does not comply the provisions contained in Order 26, Rule 18 of the Code will still be evidence in the suit within the meaning of Rule 10 of the said order; (3) whether in the facts and circumstances of the case where the parties require that the
Court should send the matter to an expert without disclosing his identity, it can still be said that non-compliance of Rule 18 would render the report a nullity.
The learned counsel for plaintiff also relied upon a decision made in the case of Rattan Singh Vs. Nirmal Gill [2020 SCC OnLine SC 936] wherein the Hon’ble Apex Court while discussing with regard to handwriting expert opinion observed that 29 OS 93/2015
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“In our opinion, the expert evidence produced by the plaintiff in reference to the signature of the plaintiff is of no avail, in view of divergent opinions. The ground that the documents were a result of copied forgery cannot be substantiated only on the basis of the opinion of expert (PW10). Even otherwise, the expert opinions are not a binding piece of evidence and have to be corroborated with other pieces of evidence. Suffice it to say that the plaintiff failed to prove that her signatures on the subject documents are forged.”
The present suit being filed by the plaintiff against defendants seeking specific performance of contract i.e. agreement of sale dt.11-8-2014 and agreement of sale dt.20-4-2015, and admittedly the plaintiff has no privity of contract with defendant No.1 and when defendant No.1 had specifically pleaded that he has not executed the agreement of sale dt.11-8-2014 in favour of defendant No.2 and contended that the said agreement of sale dt.11-8-2014 and agreement of sale dt.20-4-2015 are rank forgery and have not supported by consideration. There is no specific contention on behalf of defendant No.1 that the agreement of sale dt.11-8-2014 is a forged document, and his signature is forged and thereby created the said agreement of sale dt.11-8-2014 and it is his specific contention that he did not execute the aid agreement of sale in favour of defendant No.2. The defendant No.1 as DW.1 even deposed that he has no acquaintance with defendant No.2 and plaintiff and he din dot know them. Under these facts and circumstances, the initial burden of proof lies on the plaintiff to prove that the agreement of sale dt.20-4-2015 said to be executed by defendant
No.1 in favour of defendant No.2, then only the burden shifts on the defendant No.1 to prove his allegation that the said agreement of sale dt.
11-8-2014 is a forged document. As discussed and held supra, the plaintiff failed to prove the very execution of agreement of sale dt.20-4-2015 by defendant No.2 in his favour and the recital of Ex.A.3 does not specifically speak about the agreement of sale dt.11-8-2014 and its terms and conditions, and hence it cannot be said that the defendant
No.1 is bound to prove that Ex.A.1 agreement of sale dt.11-8-2014 is a forged document. The said judgments referred above by the plaintiff are 30 OS 93/2015
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not helpful in the present proved facts and evidence put-forth by both the parties.
(k) The plaintiff failed to prove the very execution of agreement of sale
dated 11.08.2014 by defendant No.1 in favour of defendant No.2 by
receiving amount of Rs.15,00,000/- towards advance initially and thereafter Rs.5,00,000/- each on 27.11.2014 and 10.03.2015 in respect of suit schedule property. Even if we assume for a moment that Ex.A1 is true and valid, even then, defendant No.2 will get right to transfer the schedule mentioned property covered under Ex.A1 i.e. suit schedule property herein only if he has paid entire sale consideration amount referred in Ex.A1 to defendant No.1 or if the defendant No.1 is also party to
Ex.A3 agreement of sale dated 20.04.2015, then defendant No.1 can be made liable under Ex.A3 agreement of sale. As referred and held supra, the plaintiff failed to prove the very execution of Ex.A1/agreement of sale
dated 11.08.2014, it cannot be said that defendant No.2 is entitled to
transfer his rights, if any, under agreement of sale dated 11.08.2014 in favour of others. When the defendant No.2 himself is not acquired full right over the suit schedule property as per terms and conditions of Ex.A4, it cannot be said that he is entitled to transfer his rights, if any, under agreement of sale dated 11.08.2014 in favour of others in general and in favour of plaintiff in particular basing on the facts and evidence adduced by the parties before the court.
(l) The present suit being filed for decree of specific performance basing on a contract, the plaintiff has to prove that he is ready and willing to perform his part of agreement of sale dated 20.04.2015/Ex.A3. The evidence of PW.1 with regard to his financial capacity would show that he has no capacity of his own either to pay Rs.12,00,000/- or the remaining balance of Rs.21,00,000/- as he deposed that he is having Rs.21,00,000/- with his son at Hyderabad. Admittedly, PW.1 is not maintaining account 31 OS 93/2015
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in a bank. A person who is not maintaining account in a bank cannot be expected to deal transactions in lakhs of rupees. Even as per PW.1 himself, his son is maintaining accounts in Agricultural Development
Bank and State Bank of India, Hyderabad and 3 or 4 lakhs balance will be available in the account of his son. He had categorically deposed that he did not file any document to show that he is having Rs.21,00,000/- with him on the date of filing of the suit. It itself shows that the plaintiff is not ready and willing to perform his part of contract. When there is no privity of contract between defendant No.1 and plaintiff, no liability can be fixed against defendant No.1. When the plaintiff failed to prove the very execution of Ex.A3 agreement of sale by defendant No.2 in his favour and that he is always ready and willing to perform his part of contract under
Ex.A3, it clearly shows that the plaintiff is not entitled for discretionary relief of specific performance of Ex.A1 and A3 against defendant Nos.1 and 2.
(m) Coming to issue No.4, in view of the plaintiff got impleaded defendant Nos.3 and 4 who were said to be purchasers of suit schedule property from defendant No.1 as proforma defendants to this suit, the issue No.4 became infructious and there is no need to answer the same.
Coming to the additional issue framed i.e. whether the plaintiff is entitled for a decree directing the defendants to refund Rs.12,00,000/- with 24% per annum from the date of paint till the date of realization, the present suit being filed for specific performance of agreement of sale dated 11.08.2014 and 20.04.2015, to direct the defendants No.1 and 2 to execute a regular registered sale deed in favour of plaintiff and in the event of defendants No.1 and 2 failed to execute a regular registered sale deed, this Court may execute a sale deed on behalf of defendant or in alternative to direct the defendants to refund of advance amount of Rs.12,00,000/- alleged to be received by defendant No.2 under agreement of sale dated 20.04.2015 with interest at 24% per annum as per trade usage, custom 32 OS 93/2015
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from the date of agreement till the date of realization. As discussed and held supra, the plaintiff failed to prove the very execution of Ex.A3 agreement of sale dated 20.04.2015 and that he paid an amount of
Rs.12,00,000/- to defendant No.2 towards part of sale consideration as advance and hence the question of his entitlement to alternative relief of refund of alleged advance amount of Rs.12,00,000/- to him with interest at 12% p.a. does not arise. It is true that in a breach of contract buyer has right to cancel the contract buyer has right to cancel the contract and obtain refund of the advance amount or earnest money along with interest and compensation for any loss sustained and similarly, if the buyer violates the terms of the contract or does not complete deal within the stipulated time framed, the seller has right to forfeit the advance of earnest money as the terms of the contract stipulate. The Hon’ble Supreme Court in a case of Satish Batra vs. Sudhir Rawal, 2013 SCC 345, reaffirmed the following ingredients which must be present in the contract so as to enable the seller to forfeit earnest money:
1. It must be given at the moment at which the contract is concluded;
2. It represents a guarantee that the contract will be fulfilled or, in other words, “earnest” is given to bind the contract;
3. It is part of the purchase price when the transaction is carried out;
4. It is forfeited when the transaction failed through by reasons of the default or failure of the purchase;
5. Unless there is anything to the contrary in terms of the contract, on default committed by the buyer, the seller is entitled to forfeit the earnest
In the instant case, as observed and held supra, the plaintiff though examined himself as PW.1 and V. Venkatarami Reddy and marked Exs.A1 to A9, but failed to prove that defendant No.2 executed Ex.A3, agreement of sale, in favour of plaintiff by receiving an amount of rs.12,00,000/- from him on 20.04.2015. In the absence of any cogent evidence and proof that the plaintiff paid an amount of Rs.12,00,000/- to defendant No.2 and admittedly there is no privity of contract between defendant No.1 and plaintiff, it follows that the plaintiff failed to prove his entitlement for 33 OS 93/2015
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alternative relief of refund of Rs.12,00,000/- alleged to be paid by him to defendant No.2 with interest at 24% per annum as sought by him.
(n) In view of the detailed discussion coupled with reasons stated supra, basing on the pleadings and evidence put-forth by the plaintiff and defendant No.1, it cannot be said that the plaintiff is ready and willing to perform his part of contract and that the defendants No.1 and 2 failed to perform their part of contract as per the agreement of sale dated 11.08.2014 and 20.04.2015. In other words, it follows that the plaintiff failed to prove his case and therefore, the plaintiff is not entitled for specific performance of agreement of sale dated 11.08.2014 and 20.04.2015 in his favour and against the defendants, the 2nd defendant is not entitled to transfer his rights under agreement of sale dated 11.08.2014 in favour of plaintiff and the plaintiff is not entitled for alternative relief of refund of advance amount of Rs.12,00,000/- with interest at 24% per annum from the date of agreement till the date of suit and future interest from the date of suit till the date of realization. others . Issue Nos.1 to 6 and additional issue are answered accordingly against the plaintiff and in favour of the defendants.
15) ISSUE NO.7:-
In the result and in view of the findings on issues framed in the suit, the suit in O.S.No.93/2015 is dismissed with costs.
Dictated to Stenographer, transcribed by her, corrected and
pronounced by me in open Court, this the 11th day of April, 2022.
Sd/- Aruna Sarika
District Judge,
Ananthapuramu.
Appendix of evidence
Witnesses examined for
Plaintiff(s): Defendant(s): P.W.1: Yeddula Nagi Reddy DW.1: S. Ravindra Reddy
P.W.2: V. Venkatarami Reddy 34 OS 93/2015
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Exhibits marked on behalf of the plaintiff(s)
Ex.A.1: Original agreement of sale executed by defendant No.1 in favour of defendant No.2 for Rs.35,50,000/- dt.11.08.2014
Ex.A.2: Part payment of Rs.5,00,000/- received by defendant No.1 from defendant No.2 and endorsed the same on Ex.A1 dt.27.11.2014
Ex.A.3: Original agreement of sale executed by the defendant No.2 in favour of the plaintiff for Rs.33,00,000/- dt.20.04.2015
Ex.A.4: Part payment of Rs.5,00,000/- received by defendant No.1 from defendant No.2 and endorsed the same on Ex.A1 dt.10.03.2015 Ex.A5: Office copy of legal notice issued on behalf of the plaintiff to the defendants No.1 and 2 dt.1.6.2015
Ex.A6: Two postal receipts
Ex.A7: Reply notice issued on behalf of defendant No.1 dt.8.6.2015 Ex.A8: Reply notice issued on behalf of defendant No.2 dt.8.6.2015
Ex.A9: Certified copy of registered sale deed vide document No.6042/2015 dated 17.07.2015 by defendant No.1 in favour of defendant Nos.3 and 4 for Rs.9,50,000/-.
Exhibits marked on behalf of defendant(s) -Nil-S
Sd/- Aruna Sarika
District Judge,
Ananthapuramu.