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IN THE COURT OF THE CIVIL JUDGE (SENIOR DIVISION) : : GURAZALA
PRESENT :- SRI B.L EELA V ENKATA S ESHADRI ,
CIVIL JUDGE (SENIOR DIVISION), GURAZALA
Tuesday, this the 26th day of March, 2024
Original Suit Number 261 of 2011
Between :
1. Nelluri Parvathaiah (DIED)
2. Nelluri Mangamma
3. Nelluri Kumara Swamy
4. Nelluri Venkaiah
5. Nelluri Bharathi (Plaintiff Nos.2 to 5 were added as per orders in I.A.No.220/2021 dated 29.10.2021) … Plaintiffs
And
Nerella Venkata Kotaiah … Defendant
This suit is coming up before me for final hearing on 15.03.2024 in the presence of Sri J.Nageswara Rao, Advocate for the Plaintiffs; Sri P.Harinadha Babu and Sri A.Srinivasa Rao, Advocates for Defendant and having stood over the matter for consideration to this day, this court delivered the following:
J U D G M E N T
This is a original suit filed by the plaintiffs for specific performance of agreement of sale dated 19.04.2005 directing the defendant to execute a regular registered sale deed in favour of the newly added plaintiffs at their expense in respect of the plaint schedule mentioned property by receiving the balance of sale consideration of Rs.1,55,000/- within the time fixed by the court and if he failed to do so, the court itself may execute the sale deed on behalf of the defendant in respect of the plaint schedule mentioned property; for consequential delivery of 2 the plaint schedule mentioned property to the plaintiffs alternatively, grant decree for refund of the amount together with interest; and for costs of the suit.
2. The brief averments of the amended neat copy of Plaint are as follows:
The defendant who is the original owner of the plaint schedule mentioned property offered to sell the same to the plaintiff No.1 and that the plaintiff No.1 accepted for purchase of the same for a bill contract consideration of
Rs.6,55,000/- and executed a registered agreement of sale dated 19.04.2005 in favour of plaintiff No.1. The sale consideration comprised of Rs.4,00,000/- due by the defendant to the Andhra Bank, Macherla, which was paid by the plaintiff No.1 to the Bank on behalf of the defendant on 31.03.2005 and the balance of consideration of Rs.2,55,000/- was agreed to be paid to the defendant on or before 18.04.2007 as per terms. Subsequently, the defendant executed stamped agreement in favour of the plaintiff No.1 acknowledging the receipt of part- payment of Rs.50,000/- on 08.03.2007 and Rs.50,000/- on 20.03.2007 totalling
Rs.1,00,000/- towards part-payment of the balance sale consideration payable under the suit contract of sale and extending due date for performance under the suit contract of sale till 18.08.2008. Thus, the plaintiff No.1 has paid total amount of
Rs.5,00,000/- towards sale consideration. Subsequently, plaintiff No.1 several times requested and demanded the defendant to execute a regular registered sale deed in his favour by receiving balance of sale consideration. But, the defendant admitting his liability has been postponing to execute regular registered sale deed in favour of the plaintiff No.1 on some pretext or other. So, the plaintiff No.1 got issued a legal notice dated 08.03.2011 calling upon him to come forward to execute regular registered sale deed in his favour. Having received the same, the defendant 3 did not choose to perform his part of contract and even failed to give any reply. So, the plaintiff No.1 constrained to file the suit against defendant.
During the pendency of suit plaintiff No.1 died on 12.06.2021 leaving behind the plaintiff Nos.2 to 5 who are his wife and children as his legal heirs. So, the plaintiff Nos.2 to 5 were added in the suit.
Hence, the suit.
3.The defendant filed written statement by denying the allegations in the plaint in para-wise and point -wise. The defendant has got money dealings with the plaintiff No.1 since the year 1993. The plaintiff No.1, K.Narayanamurthy and
S.C.John Ahammad are close friends and they are the creditors of the defendant.
They have obtained a document styling itself as Security Deed. The defendant who indebted to the plaintiff No.1 is renewing the same for every three years. The plaintiff No.1 who is greedy in order to have wrongful gain concocted five promissory notes and filed a suit in OS 11/2011 on the file of Hon’ble Additional
District Judge, Narasaraopet and the defendant contesting the suit.
The defendant and his wife are joint owners of the plaint schedule mentioned property, which was given by her parents towards pasupukumkuma.
The defendant never intended to sell the plaint schedule mentioned property as alleged by the plaintiff No.1. Further contended that the plaintiff No.1 lent
Rs.4,00,000/- to the defendant on 31.03.2005 as a security he obtained a registered agreement of sale from this defendant on 19.04.2005 at Narasaraopet. The plaintiff No.1 who is in the habit of obtaining signatures on blank stamped papers 4 fabricated document dated 05.04.2007 in order to bring the suit within time.
Further contended that if really the plaintiff No.1 purchased the plaint schedule mentioned property as alleged, he would not have sought for attachment of the property and in fact that the plaintiff No.1 got attached the schedule property in
OS 11/2011. Further contended that the defendant has not received Rs.5,00,000/-
as alleged in the plaint and the issuance of registered notice by the plaintiff No.1 on 10.03.2011 clearly shows that the suit transaction is only part and parcel of money transaction, neither the plaintiff No.1 nor the defendant never evinced any interest to treat the suit transaction as sale transaction. The improvements made by the defendant in the plaint schedule mentioned property itself is supporting the case of the defendant. The plaintiffs have no cause of action to file the suit and the suit claim is barred by time. Finally, the defendant prays to dismiss the suit with costs.
4.Basing on the pleadings and material on record, one of my learned predecessor-in-title framed the following issues on 23.02.2012:
1. Whether the plaintiff is entitled to seek specific performance as prayed for?
2. Whether the agreement of sale is brought into existence for the security for loan borrowed by the defendant?
3. Whether the defendant alone has transferrable interest over the schedule property?
4. To what relief?
5.As seen from the record, it shows that one of my learned predecessor=-in-title framed the additional issue on 27.12.2017: -
1. Whether the plaintiff is ready and willing to perform his part of contract?
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6.During the pendency of the suit, the plaintiff No.1 filed an application in IA No.84/2018 under Order VI Rule 17 of Code of Civil Procedure to amend the plaint by including the alternative relief of grant of refund of amount together with interest. There is no dispute that the said application was allowed by this court on 01.03.2018. There is no dispute that the defendant preferred Civil Revision Petition
No.2902/2018 before the Hon’ble High Court of Andhra Pradesh. The record shows that the said Civil Revision Petition was dismissed on merits on 17.11.2023.
Accordingly, the plaintiffs are also seeking the alternative relief of grant of refund of amount together with interest. It is pertinent to mention here that initially the plaintiff No.1 as sole plaintiff filed the suit. The record further shows that during his life time, the entire evidence on behalf of both sides completed. When the matter is coming up for arguments, an application filed to bring the plaintiff Nos.2 to 5 as legal heirs in view of the death of the sole plaintiff. The said application was allowed and accordingly, the plaintiff Nos.2 to 5 are brought on record. No
additional Written statement filed. No additional evidence produced by both
parties.
7.On behalf of plaintiffs, PWs.1 to 6 got examined and Exs.A1 to A8 got marked. On behalf of defendant, DW.1 got examined and Exs.B1 to B3 got marked.
8.Heard both side. Perused the record along with written arguments, which are in the record.
Issue Nos.1 and 2:-
9.The above issues are inter related and inter dependent. So, they are taken up together for simultaneous discussion to avoid redundancy in the discussion.
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10.It is fundamental principles of law that parties to the suit cannot traverse beyond the pleadings. Any amount of evidence produced beyond the pleadings cannot be looked and it cannot be taken into consideration.
11.It is equally settled proposition of law that granting of equitable relief of specific performance would be wholly within the discretion of this court and cannot be claimed as a matter of right. Before granting such a decree, the court must be satisfied that (i) the contract is certain and unambiguous in its terms; (ii) consideration has passed; (iii) contract is fair and not vitiated by fraud; (iv) the contract does not offend a third party; (v) contract does not impose any hard or unconscionable bargain; and (vi) the contract is capable of execution. At the same time, it should not be lost sight of that such discretion must be exercised by the court based on sound judicial principles and not arbitrarily.
12.It is the case of the plaintiffs that defendant offered to sell the plaint schedule mentioned property to meet his family expenses and after due negotiations, Defendant agreed to sell the same for a bill contract consideration of
Rs.6,55,000/- and the plaintiff No.1 accepted the same and paid earnest money of
Rs.4,00,000/- into the Andhra Bank, which was due by the defendant and that the defendant executed the registered agreement of sale. It is further case of the plaintiffs that subsequently the defendant made two part-payments of Rs.50,000/- each and in token of the same, the defendant executed the acknowledgment of the agreement and also extended the time for performance and as such, time is not essence of the contract. Per contra, the case of the defendant is total denial of the case of the plaintiffs and also has taken the plea that Ex.A1 executed for security 7 purpose in view of the debts between the plaintiff No.1 and defendant and that it never intended as sale and further Ex.A2 fabricated for the purpose of the case to save limitation. In view of rival contentions of the parties and as the plaintiffs approached the court, the initial burden is on the plaintiffs to establish their case.
13.To substantiate the case of the plaintiffs, the plaintiff No.1 himself got examined as PW.1. He filed chief examination affidavit by reiterating the contents mentioned in the plaint pleadings, as such, they are not reproduced here. Through him, the record of evidence received as Exs.A1 to A8. During the course of cross- examination, the plaintiff No.1 made several material admissions, which are favourable to the case of the defendant. Basing on the admission of the PW.1,
Exs.B1 and B2 are marked on behalf of the defendant during the course of cross- examination of PW.1.
14.In support of the case of the plaintiffs, the scribe of the suit agreement of sale/Ex.A1 got examined as PW.2 and the attestors got examined as
PWs.3 and 4 who filed chief examination affidavits supporting the case of the plaintiffs and Ex.A1 and tried to depose that in their presence, Ex.A1 was executed by the defendant. Two third parties to the suit i.e., one is said to be patient of the plaintiff No.1 got examined as PW.5 by filing chief examination affidavit as if he was present at the time of alleged part-payments and another is a Typist got examined as PW.6 by filing chief examination affidavit as if he typed Ex.A2 acknowledgment of part-payments under stamped agreement.
15.As seen from the documents marked on behalf of the plaintiffs, Ex.A1 is the suit agreement of sale said to be executed by defendant in favour of 8 defendant; Ex.A2 is the stamped agreement said to be executed by the defendant acknowledging the alleged part-payments. Ex.A3 is the office copy of legal notice
dated 08.03.2011; Ex.A4 is the Office copy of same legal notice sent to the Business
Address of the defendant; Ex.A5 is the postal acknowledgment of Notice sent to house address; Ex.A6 Postal Acknowledgment sent to the business address; Ex.A7 balance amount deposit challan dated 19.07.2014 and Ex.A8 credit voucher dated 31.03.2005.
16.As seen from the pleadings and admissions of the defendant, it shows that, there is no dispute that the defendant executed Ex.A1 registered agreement of sale dated 19.04.2005. There is no dispute with regard to the signatures of the defendant in Ex.A2. Of course, the defendant has taken the plea that Ex.A1 was executed for security with regard to money transaction and never intended by the parties as an agreement of sale and that Ex.A2 is fabricated and brought into existence for the purpose of the case with false allegations and contents to save limitation. There is no dispute with regard to Exs.A3 to A6, which are the legal notice and served acknowledgments on the defendant. Even as per the admission of the defendant, he received the legal notice. There is no dispute that the defendant failed to give any reply. Though it is suggested reply notice was issued but the same was not pleaded in the written statement or in the evidence and no such copy of the reply notice filed before the court. Non-issuance of reply notice alone is not a ground to decree the suit. But, it may be one of the circumstances to know the conduct of the parties. On over all perusal of the evidence produced on behalf of the plaintiffs and the admissions of the defendant, it can be held that the plaintiffs have discharged their initial burden. Now, the burden shifts on the 9 defendant. In order to discharge the burden on the defendant, he need not produce cogent evidence. The defendant can discharge the burden and rebut the legal presumptions by way of producing evidence or by eliciting the admissions in the evidence produced by the plaintiffs.
17.In order to discharge the burden, the defendant apart from examining himself as DW.1 relied on Exs.B1 to B3 and the admissions of the witnesses examined on behalf of the plaintiffs.
18.It is the one of the contention of the defendant that the defendant has got money dealings with the plaintiff since the year 1993 and that plaintiff
No.1, K.Narayanamurty and S.C.John Ahamad are close friends and they are creditors of this defendant and that they have obtained document styling as security deed and in that process, he executed Ex.A1 and it never the intention of the parties to treat it as agreement of sale. In the cross-examination, he stick on to his version. During the course of cross-examination of PW.1, it is elicited that there were money dealings between him and the defendant and pleaded ignorance that the defendant borrowed loans from K.Narayanamurthy and John Ahamad. These admissions of the PW.1 clearly establish that there were money dealings between him and the defendant and he has not denied the fact that the defendant used to borrow loans from K.Narayanamurthy and John Ahammad. It is further elicited that, on the date of deposit of Rs.4 (four) lakhs, no document was obtained from the defendant. As seen from the evidence, it shows that, under the original of
Ex.A8, the plaintiff No.1 deposited an amount of Rs.4,00,000/- in Andhra Bank debt due by the L.C.K.Cements Limited towards part-payment. It clearly goes to show 10 that the deposit of amount of Rs.4,00,000/- is not deposited for the personal loan in personal capacity of the defendant, but it is in the capacity of L.C.K. Cements Ltd.,
Company, which belongs to the defendant. Admittedly, the date of Ex.A1 19.04.2005 whereas Ex.A8 is dated 31.03.2005. There is no explanation from the plaintiffs for not obtaining the agreement of sale on the date of Ex.A8 i.e., 31.03.2005 itself, if really the contention of the plaintiffs are true and correct.
Under Ex.A1, no consideration passed on the date of its execution i.e., on 19.04.2005. As seen from the evidence of PW.2 who is scribe of Ex.A2, deposed in the cross-examination that no document showing payment of Rs.4,00,000/- in the bank by plaintiff No.1 was confronted to him nor furnished Bank Account Number.
Further deposed that he has not enquired about the reason why they came to
Narasaraopet for execution of Ex.A1 and he do not know for fixing two years time for completion of contract. PW.3 one of the attestor in the cross-examination deposed that, he do not know the defendant earlier to Ex.A1 tranasaction and he know the plaintiff No.1 as he used to come to the office of PW.2. He further deposed that no consideration was passed in his presence and he do not know personally about the payments made through the bank in this transaction. He clearly admitted that he know PW.2 scribe since 20 years and at his request, he put his signature and he do not know personally about the bargain and contents of
Ex.A1. PW.4 another attestor in his cross-examination deposed that he know the plaintiff No.1 since 2003 when he started working as Assistant under PW.2. He further deposed that to his knowledge except Ex.A1 no other document was scribed by PW.2 of defendant. A careful perusal of the evidence of PWs.1 to 4, it clearly goes to show from the admissions that the scribe PW.2 who is resident of 11
Narasaraopet is friend of PW.1 as PW.1 used to visit to the office of PW.2 and that the attestors PW.3 is friend of PW.2 and PW.4 is the Assistant of PW.2 and they signed in Ex.A1 as per the instructions of PW.2. In view of close acquaintance of
PW.1 and PWs.2 to 4, Ex.A1 was scribed and registered at Narasaraopet, but not at
Macherla where plaint schedule mentioned property is situtate. Apart from that there is no proper explanation from PWs.1 to 4 to obtain registered agreement of sale at Narasaraopet instead of Macherla and fixing of two years long duration for performance under Ex.A1. In this way of the matter, the defendant is able to raise suspicious circumstances over the Ex.A1 and also that there is no intention of the parties to treat the Ex.A1 as an agreement of sale.
19.There is no dispute that Ex.A1 is registered document at Sub-Registrar
Office, Narasaraopet. But in fact, the plaint schedule mentioned property situated at Macherla where there is also Sub-Registrar Office. A presumption arises with regard to the registered document. The said presumption is rebuttable presumption. There is no dispute that Section 92 of Evidence Act lays down that a party cannot plead or defend his case orally beyond the contents of the document and he is stopped by way of law of estoppel also. At the same time, it is explained that Section 92 of the Act provided that certain exceptions where oral evidence could be accepted namely any fact, which would invalidate any document or entitle any person to any decree relating to fraud, illegality etc. In this case as seen from the evidence of PWs.1 to 4, by way of admissions, the defendant is able to establish the suspicious circumstances over execution of Ex.A1 in the manner pleaded by the plaintiffs. That is to say that Ex.A1 is not free from all suspicious circumstances and 12 parties to it never intended it as an agreement of sale, but for security purpose in money transaction between them.
20.With regard to Ex.A2 is concerned, on perusal of the document, it shows that, it was executed in two non-judicial stamp papers, one is worth Rs.100/-
dated 10.03.2007 and second sheet is in Rs.10/- worth dated 04.04.2007. Both are
in the name of defendant. As per the said document, it is recited that, it was executed in token of acknowledgment of earlier part-payments and extension of time. At the time of marking of the document, it appears that, there is no any objection for marking the same. Having kept quite all these days, now at the fag end, the defendant cannot request the court to reject Ex.A2. Once the document is marked, it cannot be rejected on the ground of inadmissibility for want of Stamp duty and registration when no objection was raised at the time of marking of document. Apart from that, under Ex.A2 no delivery of possession was given and no sale transaction was done. Further, the said document does not create any interest or confer title in any immovable property and thereby Ex.A2 is not required to be stamped or liable for registration. So, the contentions of the learned counsel for the defendant on these aspects is unsustainable.
21.With regard to signature on Ex.A2, there is no dispte from the defendant that Ex.A2 bears his signature. It is the contention of the defendant that the plaintiff No.1 is in the habit of obtaining unfilled signed stamp papers and unfilled signed promissory notes for the debt borrowed from him at the time of lending of money. On this aspect, on perusal of Ex.A2, it contains typed matter.
Nowhere in Ex.A2, it is mentioned that who typed the matter and there is no 13 signature of the said person who prepared it. There is no attestor to Ex.A2.
Further, the contents of the Ex.A2 shows that the matter typed in order to adjust the contents up to the signature of the defendant in two different stamped papers.
That is why, the schedule is appears to be incomplete when compared with Ex.A1 schedule. On this aspect, there is no proper explanation from plaintiff No.1 in his evidence.
22.As seen from the evidence of PW.5 who is alleged to be patient of
PW.1 doctor deposed that in his presence, the plaintiff No.1 paid Rs.50,000/- on 08.03.2007 and Rs.50,000/- on 20.03.2007. As seen from the cross-examination, he deposed that he is a tailor by profession and he know the plaintiff No.1 since 30 years. He further clarified that he did not mention the dates of part-payments on any paper. He volunteers that the plaintiff No.1 recently informed him about the dates of part-payments. From the admissions it clearly goes to show that he do not know about the part-payments and recently, just before giving evidence, he came to know avbout the these alleged part-payments through PW.1. So, it clearly goes to show that PW.5 has no personal knowledge about the alleged part-payments.
PW.6 is said to be the person who typed the matter on Ex.A2. In the cross- examination, he deposed that he has not mentioned the name of the type institute he alleged to be owned. It is elicited that generally the scribe will mention his name at the end of the document. Further clarified that there is no any document to show that Ex.A2 was prepared in his type institute and by him. A careful perusal of the evidence, it clearly goes to show that either the PW.1 or PW.6 failed to produce any scrap of paper to show the name and style of the type institute alleged to be owned by PW.6. At least, they failed to give the name and location of the said 14 alleged institute. Absolutely, there is no any proof that PW.6 prepared Ex.A2. Even as per the version of PW.6, if any document prepared, then certainly the name of the scribe who prepared or typed should be mentioned at the end of the document.
If really, Ex.A2 was prepared by PW.6, then certainly the name of PW.6 might have reflected in Ex.A2. Apart from that, the plaintiffs failed to mention the name of
PW.5 and PW.6 in the pleadings and in the evidence of PW.1. Absolutely there is no proper explanation for at least not mentioning the names of PW.5 and PW.6. So, it clearly goes to show without any pleadings and without any believable evidence, introduced the close associates of PW.1 as PWs.5 and 6 as if they are the witnesses to Ex.A2. As such, there is no whisper in their evidence.
23. As seen from the evidence, the plaintiffs failed to produce any scrap of paper to show that defendant received alleged part-payments from the PW.1.
There is no pleading when, where, in whose presence and the mode of alleged part- payments. In the absence of any pleadings and cogent believable evidence, it raises a reasonable doubt with regard to the alleged part-payments as alleged by the plaintiffs. Further, the stamps used for Ex.A2 are purchased on different dates and the execution of Ex.A2 is another date. Absolutely, there is no explanation from the plaintiffs and witnesses examined on behalf of the plaintiffs. This is another circumstance, which raises a reasonable doubt with regard to the genuineness of the Ex.A2 as stated by the plaintiffs. Apart from that, if really the defendant made the alleged part-payments, then certainly they might have entered and endorsed on the reverse of Ex.A1 generally. Absolutely, there is no proper explanation from the plaintiffs for not entering and endorsing the alleged part-payments on the reverse of Ex.A1 and to execute alleged Ex.A2. All these clearly goes to show that passing 15 of the consideration by way of part-payments under Ex.A2 is appears to be doubtful. This is another circumstances, which gives a reasonable doubt in the case of the plaintiffs and the very execution and validity of Ex.A2 as alleged by the plaintiffs.
24.As seen from the evidence, the plaintiff No.1 is also resident of
Macherla. There is no dispute the defendant constructed upstair soon after the alleged execution of Ex.A1. There is no dispute that as the construction of up-stair is without obtaining approved plan, the municipality, Macherla issued notice to the defendant and defendant got it regularized. The said fact is not denied by the plaintiffs and the same is born out from Ex.B3. Further, the plaintiffs who are residents of Macherla fully aware of the construction made by the defendant in the year 2007. But, the plaintiff No.1 during his life time never objected the defendant for construction of the first floor of the property covered under Ex.A1. If really,
Ex.A1 is intended to be an agreement of sale by the parties, then certainly the plaintiffs might have objected the defendant for making further construction of first floor over the property covered under Ex.A1. Absolutely, there is no any proper explanation from the plaintiff No.1 or from other plaintiffs about his inaction on these aspects, if really the contentions of the plaintiffs are true and correct.
25.As seen from the evidence, during the course of cross-examination,
PW.1 admitted that he filed the suit for recovery of money basing on promissory notes sought attachment of the plaint schedule mentioned property under Exs.B1 and B2. Through him, the certified copy of attachment before judgment petition, 16 affidavit and schedule in IA No.500/2011 in OS No.11/2011 on the file of Hon’ble
Additional District Judge, Narasaraopet got marked as Ex.B1. The certified copy of
plaint in OS No.16/2013 on the file of Hon’ble Additional District Judge,
Narasaraopet got marked as Ex.B2. These documents show that the plaintiff No.1 got attached the plaint schedule mentioned property in the said suit. If really the plaintiff No.1 purchased the plaint schedule mentioned property certainly no ordinary prudent man would seek attachment of the plaint schedule mentioned property. As seen from the averments of Exs.B1 and B2, it shows that, the plaintiff
No.1 averred that he paid entire sale consideration to the defendant under Ex.A1.
In the cross-examination of PW.1 he deposed that, the contents of Ex.A2 are correct. But in fact, it is not the case of the plaintiff No.1 in this case. Though the
Pw.1 deposed that, he is an income tax assessee and he can file the income tax returns for the relevant years, failed to file the same before the court to prove his bonafides. So these are the other circumstances, which raises a reasonable doubt and suspicious circumstances that Ex.A1 is not intended to serve as an agreement of sale.
26.On the perusal of the evidence produced by the defendant and the admissions elicited from the evidence of Pws.1 to 6 clearly raises reasonable doubt and suspicious circumstances over the Ex.A1 and A2 as stated by the plaintiffs. So, it can be held that the defendant is able to discharge the onus shifted on him and rebutted the legal presumption.
27.Now the burden of proof again shifted to the plaintiffs. But, as seen from record, the plaintiffs failed to produce any cogent, believable legal evidence 17 to believe the version of the plaintiffs and to remove all the suspicious circumstances over Exs.A1 and A2. The evidence of PWs.1 to 6 in the above facts and circumstances of the case is not believable and not trustworthy.
28.The learned counsel for the plaintiffs relied on the following citations:
(i) In Jala Anjaiah Vs. Ramisetty Anjaiah reported in 2012 (2) ALD 618 wherein the the Hon’ble High Court held in para-16 that in a suit for specific performance of agreement of sale, there cannot be a pleading containing to very agreement of sale”.
With due respect to the Hon’ble High Court that there is no dispute with regard to the ratio laid down in the above citation. But the facts and circumstances of the present case are different.
(ii). S.Mohan Krishna Vs. V.Varalakshmamma and others reported in 2017 (5) ALT 264 wherein the the Hon’ble High Court held that “once a document is marked cannot be rejected on the ground of inadmissibility for want of stamp duty and registration when no objection was raised at the time of marking of the document”
With due respect to the Hon’ble High Court that the ratio laid down in the above citation is applicable to the present facts and circumstances of the case.
(iii) R.Suresh Babu Vs. G.Rajalingam and others reported in 2017 (1) ALT 668 wherein the the Hon’ble High Court held that “in view of section 17 (1) (g) and 17 (2)
(v) and proviso to Section 49, as amended from time to time and the law applicable to the state of Andhra Pradesh as on the date of execution of agreement of sale, the plaint cannot be rejected.
With due respect to the Hon’ble high court that there is no dispute with regard to the ratio laid down in the above citation. But the facts and circumstances of the present case are entirely different. In this case, it is not the argument of the defendant to reject the plaint on the ground that agreement of sale of immovable property of worth more than Rs.100/-, which is specifically registerable in view of AP Amendment Act to Section 17 (1) (g). In fact, Ex.A1 is a registered document.
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(iv) In Sardar Darshan Singh Vs. Sardar Ram Singh and another reported in 2004 (6) ALT 217 wherein the the Hon’ble High Court held that “the document sought to be relied on by the other side as a defence in an injunction application filed in a suit for specific performance to show that he purchased the property under the agreement of sale and that he is in possession. The case falls under proviso to Section 49, which is an exception to requirement of registration under section 17 of the Act.”
With due respect to the Hon’ble high court that there is no dispute with regard to the ratio laid down in the above citation. But the facts and circumstances of the present case are entirely different. In this case, in fact, Ex.A1 is a registered document.
(v) Javvadi Koteswara Rao Vs. Sonti Sambasiva Rao reported in 2004 (4) ALT 614 wherein the the Hon’ble High Court held that the proviso to Section 49 makes the wording of the section very clear that an unregistered document may be received as evidence in a contract in a suit for specific performance under Chapter-
II of Specific Relief Act, 1877.
With due respect to the Hon’ble High Court that there is no dispute with regard to the ratio laid down in the above citation. But the facts and circumstances of the present case are entirely different. In this case, in fact, Ex.A1 is a registered document.
29.The learned counsel for defendant relied on the following citations: -
(i) Kedarisetti Atmaram Vs. Seetharama Rao reported in 2011 (1) ALD 426 wherein the the Hon’ble High Court held that “Sub-Clause C of Section 17/1 of the
Registration Act makes it clear that any non-testamentary instruments, which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation, extinction of any such right, title or interest also require registration. Therefore, an acknowledgment dated 19.11.1990 19 also can be treated as a separate document and it creates right in respect of immovable property on the respondent”
With due respect to the Hon’ble High Court that there is no dispute with regard to the ratio laid down in the above citation. In the present case the plea of defendant is different. Defendant denying very execution of Ex.A2 itself.
(ii) Boggavarapu Narasimhulu Vs. Sriram Ramanaiah and others reported in 2014 (2) ALD 426 wherein the the Hon’ble High Court held that “the second defendant can raise an objection in regard to the admissibility of Ex.A1 on the ground that it has been not duly registered in spite of the fact that the said document has already been exhibited as Ex.A1 and is admitted in evidence during the course of trial
before the court below, as the said objection is as to admissibility of the document
and is a matter of substantive law namely registration act.
With due respect to the Hon’ble High Court that there is no dispute with regard to the ratio laid down in the above citation.
30.A valid contract should have all essential elements including offer, its communication, meeting of minds acceptance, communication of acceptance, consideration, capacity and legality. As seen from the evidence, the plaintiffs utterly failed to establish the essential elements which conclude a valid contract under Exs.A1 and A2 31On considering the totality of the facts and circumstances of the case and in the light of above evidence, this court is of the opinion that the plaintiffs failed to establish their case as pleaded. The plaintiffs failed to satisfy the necessary ingredients that i) the contract is certain and unambiguous in its terms; (ii) 20 consideration has passed; (iii) contract is fair and not vitiated by fraud; (iv) the contract does not offend a third party; (v) contract does not impose any hard or unconscionable bargain; and (vi) the contract is capable of execution. The plaintiff failed to discharge the burden shifted on her. So, it can be held that the plaintiffs have failed to establish that the suit agreement of sale Ex.A1 is true, valid, supported by consideration and so, the same is not binding on the defendant.
Apart from that plaintiffs failed to establish execution of Ex.A2 by defendant as pleaded. In view of brought into existence of Ex.A2, plaintiffs are not entitled to refund also as claimed for. Further, it can be held that plaintiffs approached the court by suppressing the truth and material facts with unclean hands. Accordingly, the above issues are answered against the plaintiffs.
Issue No.3: -
32.With regard to this issue, the burden of proof lies on the defendant.
33.It is the contention of the defendant that the defendant has no absolute right over the plaint schedule mentioned property and his wife is having half share over it. On this aspect, as seen from the recitals of Ex.A1, it clearly goes to show that the defendant alone has got right, title, possession and enjoyment over the plaint schedule mentioned property. Defendant in the cross-examination deposed that his wife is aware of the transaction under Ex.A1. He further deposed that, in Ex.B3, his wife’s name is not disclosed and he is paying the house tax to the plaint schedule mentioned property in his name and the name of his wife is not mutated in the municipal records. Further deposed that no document is filed to show that the plaint schedule mentioned property is joint family property of himself and his wife. As seen from the record and the admissions, it clearly goes to 21 show that there is no any document showing that the wife of the defendant is also joint owner of the plaint schedule mentioned property. Even in the document filed under Ex.B3, the name of wife of defendant is not reflecting as joint owner.
Further, the wife of the defendant though having knowledge about the case failed to raise any objection and failed to implead herself in the suit. Apart from that, in a suit for specific performance of contract, vendor cannot take a defence that he has no title over the plaint schedule mentioned property.
34.The learned counsel for the plaintiffs relied on the following citations:-
(i) In Ramnivas Gupta and others Vs. Maliram reported in 2002 (3) ALT 754 wherein the Hon’ble High Court held in para-22 that “in a suit for specific performance, vendor cannot take a defence that he has no title to property agreed to be sold. However, the real owner of the property impleaded as a party to suit can take the defence that the promissory (vendor) has no title to the said property.”
With due respect to the Hon’ble High Court that ratio laid down in the above citation on the above point is squarely applicable to the present facts of the case. In the present case also, though the wife of the defendant is alleged to be having right over the plaint schedule mentioned property knowing the proceedings failed to implead herself as party to the proceedings. Apart from that, there is no any disputes between the defendant and his wife and there is no obstacle to implead in the suit. There is no explanation for not impleading the wife of defendant. The defendant who is vender under alleged Ex.A1 cannot be permitted to take the defence that he has no title to the property agreed to be sold under
Ex.A1.
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35.On considering the totality of the facts and circumstances of the case and in the light of the above evidence, this court is of the opinion that the defendant failed to establish his defence with regard to the above issue.
Accordingly, the above issue is answered against the defendant.
Additional Issue: -
36.It is the contention of the plaintiffs that the plaintiff No.1 was always ready and willing to perform his part of contract during his life time and there is no breach of contract on the part of the plaintiff No.1 and that the other plaintiffs are also ready and willing to perform their part of contract. Per contra, it is the contention of the defendant that the plaintiffs did not take steps to prove their ready and willingness to perform the obligation in the alleged Ex.A1, apart from the other defences of denial of execution of Ex.A1 as pleaded and Ex.A2. In view of the same, the burden of proof lies on the plaintiffs to establish their case.
37.In a suit for specific performance of agreement of sale, the burden rests on the plaintiffs to prove the execution of the agreement of sale and also the plaintiffs are entitled for specific performance as prayed for by showing readiness and willingness in pursuance of part of contract as contemplated under Sec.16 (c) of
Specific Relief Act and also issuance of prior notice before filing of the suit by following form 47/48 of Appendix A to C of the Code of Civil Procedure.
38.As seen from Ex.A1, the alleged balance of Rs.2,55,000/- has to be paid by the plaintiff No.1 on or before 18.04.2007. It is the case of the plaintiffs that plaintiff No.1 made part-payments of Rs.50,000/- on 08.03.2007 and Rs.50,000/- on 20.03.2007 and time for performance was extended up to 18.08.2008 under Ex.A2 23
dated 05.04.2007 and that the plaintiff No.1requested the defendant to receive the
balance of sale consideration and to execute regular sale deed but the defendant postponing the same on some ground or other and so, the plaintiff No.1 issued legal notice under Exs.A3 and A4 and that the plaintiffs are able to establish that the plaintiff No.1 was always living and willing to perform his part of contract. Per contra, the case of the defendant is total denial of the case of the plaintiffs.
39.With regard to Ex.A2, this court already discussed in the above paras and so Ex.A2 is no way helpful to the case of the plaintiffs. During the course of cross-examination, PW.1 deposed that he was not in a position to pay entire consideration by the time of agreement. So, it clearly goes to show that as on the date of execution of Ex.A1, the plaintiff was not ready with entire sale consideration and he was not in a position to pay the entire sale consideration. As seen from the evidence, it shows that, the plaintiff No.1 if really ready with balance of sale consideration and if really the defendant postponing the same, then nothing prevented the plaintiff No.1 to issue legal notice even prior to alleged Ex.A2.
Absolutely, there is no proper explanation on this aspect.
40.There is no dispute that the plaintiff No.1 paid alleged balance of sale consideration of Rs.1,55,000/- before the court in this suit and the same is evidenced from Ex.A7. But, this itself is not sufficient for the plaintiff No.1 to show his readiness and willingness. As stated above, the very execution of Ex.A2 and part- payments are in dispute and the plaintiffs failed to establish the same. The evidence shows that for the purpose of cause of action and to show the readiness and willingness, it appears that the Ex.A2 is brought into existence. From the 24 evidence, it can be held that the plaintiffs failed to establish their readiness and willingness from the date of Ex.A1.
41.The learned counsel for the defendant relied on the following citations.
(i) In Malanbee (Died) per LRs Vs. Syed Amjad Hussain reported in 2011 (3)
ALD 270 wherein the Hon’ble High Court held that “the plaintiff must always be ready and willing to perform his part of contract from the date of agreement till date of hearing and the court deposit would not determine the readiness of the plaintiff.”
With due respect to the Hon’ble High Court that ratio laid down in the above citation on the above point is squarely applicable to the present facts of the case.
(ii) In Baldev Singh and others Vs. Manohar Singh and another reported in 2006 (3)
A.P.L.J. 33 (SC) wherein the Hon’ble Apex Court held that “inconsistent pleas can be raised by the defendants in the written statement although the same may not be permissible in case of the plaintiff.”
With due respect to the Hon’ble Apex Court that ratio laid down in the above citation on the above point is squarely applicable to the present facts of the case.
(iii)In Dhanraj (Died) per L.Rs and others Vs. Saleh reported in 2016 (4) ALD 1 wherein the Hon’ble High Court held that “the plaintiff to plead not only readiness but also willingness to perform his part of contract. To establish the same not only by plea but also by evidence right from entering into contract of sale till suit filed and even there after till delivery of judgment.”
With due respect to the Hon’ble High Court that ratio laid down in the above citation on the above point is squarely applicable to the present facts of the case.
25
(iv). In Narayana Reddy (Died) per LRs. and others Vs. Khaja Gulam Mustafa (Died) per LRs. reported in 2016 (2) ALD 503 wherein the Hon’ble High Court held that if the plaintiff failed to prove his readiness and willingness then his suit must fail.
With due respect to the Hon’ble High Court that the ratio laid down in the above citation on the above point is squarely applicable to the present facts of the case.
42.Section 16 (c) of Specific Relief Act envisages the plaintiffs must plead and prove that they had performed or have always been ready and willing to perform the essential terms of the contract, which are to be performed by them,
Other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiffs is a condition precedent to grant the relief of specific performance. On perusal of the evidence produced by the plaintiffs and on taking into consideration of the conduct of the plaintiffs, prior and subsequent to filing of the suit along with other attending circumstances, this court is of the opinion that the plaintiffs failed to establish the necessary ingredients of readiness and willingness also to get the relief of specific performance under the alleged agreement Ex.A1. Accordingly, the above issue is answered against the plaintiffs.
43.As seen from the pleadings, the defendant in the written statement has specifically taken the plea that the suit is barred by limitation. Somehow, my learned predecessor-in-title has not framed the said issue, which is an important one in this case. As seen from the oral and written arguments, both sides learned counsels not only let in evidence, but also submitted arguments with regard to the 26 plea of limitation. The plea of limitation can be raised at any point of time. On considering the facts and circumstances of the case and submission of the both learned counsels, the following additional issue framed so as to meet the ends of justice by resolving the real dispute in controversy. No prejudice also will cause to both parties.
Additional Issue No.2 :-
44.Whether suit is barred by limitation?
45.As per Article 54 of the Limitation Act, the period of limitation for specific performance of a contract is three years and under the said Article, there are two alternative points of time which would be starting point for limitation.
One from the date fixed for the performance of the contract; and another, if the date is not fixed, when the plaintiff had noticed that the performance was refused by the other party.
46.It is the contention of the learned counsel for plaintiff that as per
Ex.A1, time fixed for performance is 18.04.2007 and in such circumstances, the limitation is three years i.e., the plaintiffs have to file the suit on or before 18.04.2010, but the defendant himself executed Ex.A2 by receiving some part- payments and enhanced time up to 18.08.2008 and so, the suit has to be filed within the three years i.e. on or before 18.08.2011, the present suit is filed on 04.07.2011 and so, the suit is well within the period of limitation. Per contra, it is the contention of the learned counsel for the defendant as Ex.A2 is a created document, it cannot be taken into consideration to calculate the period of limitation even if Ex.A1 is genuine one and that as the suit is filed in the year 2011, 27 the suit is clearly barred by limitation and prays to dismiss the suit on the ground of limitation.
47.For the sake of discussion, if for a moment, Ex.A1 is established as genuine one, the time fixed under Ex.A1 is on or before 18.04.2007. As per Article 54 of Limitation Act, the period of limitation is three years and so, the suit has to be filed on or before 18.04.2010. As the plaint is presented on 04.07.2011, the suit is clearly barred by limitation.
48.If as per contentions of the learned counsel for the plaintiffs, for the sake of discussion, if Ex.A2 is established as true and genuine document, the time extended for performance of contract till 18.08.2008. If we calculate the period of limitation, then the suit has to be filed within three years i.e., on or before 18.08.2011. Then the suit is well within the period of limitation. But in this case, as discussed earlier, the plaintiffs failed to establish the execution of Ex.A2 by the defendant as pleaded by the plaintiffs. So, Ex.A2 cannot be taken into consideration for calculation of period of limitation. If Ex.A2 cannot be taken into consideration then it clearly goes to show that the suit is barred by limitation.
49.The learned counsel for the plaintiffs relied on the following citations.
(i)In S.Brahmanand and others Vs. K.R.Muthu Gopal (D) and others reported in 2006 (1) ALT 29.3 (DNSC) wherein the Hon’ble Apex Court held that “original agreement of sale had a fixed date for performance, but by a subsequent letter vendors made a request for extending performance to a future date without fixing any further date for performance in view of this extension what was originally under first part of Article 54 had fallen within the purview of second part of the article. “ 28
With due respect to the Hon’ble Apex Court that there is no dispute with regard to the ratio laid down in the above citation. But, the present facts and circumstances of the case are different on hand.
(ii)In D.N.Raju and others Vs. Santosh Verma and another reported in 2007 (4)
ALT 492 wherein the the Hon’ble High Court held that “suit filed within period of limitation so the denial of relief of specific performance on the ground that it is filed after seven years from the date of relevant agreement of sale not legal.”
With due respect to the Hon’ble High Court that there is no dispute with regard to the ratio laid down in the above citation. But, the present facts and circumstances of the case are different on hand.
(iii)In Sammita Sri Nataraj Vs. Kilaru Rangaiah and others reported in 2012 (5)
ALT 116 wherein the Hon’ble High Court held that “mere delay is not a ground to rejecting the claim of specific performance.”
With due respect to the Hon’ble High Court that there is no dispute with regard to the ratio laid down in the above citation. But, the present facts and circumstances of the case are different on hand.
50.On considering the totality of the facts and circumstances of the case, in the light of above discussion, this court is of the opinion that the suit filed by the plaintiffs is barred by limitation. On this ground also the suit is liable for dismissal.
Accordingly, the above additional issue is answered against the plaintiffs.
Issue No.4:-
51.In the result, the suit is dismissed without costs. However, the plaintiffs are entitled for return of an amount of Rs.1,55,000/- (Rupees one lakh 29 fifty five thousand only), which was paid on 22.07.2014 under Challan in the court towards the balance amount of registered agreement of sale dated 19.04.2005.
Typed to my dictation by Stenographer Grade-II, corrected and
pronounced by me in open court, this the 26th day of March, 2024.
Sd/-B.L.V.Seshadri
CIVIL JUDGE (SENIOR DIVISION),
GURAZALA.
APPENDIX OF EVIDENCE
Witnesses Examined For Plaintiffs:
PW.1: Nelluri Parvathaiah/Plaintiff No.1 PW.2: Singam Yoganjaneya Sarma PW.3: Nomula Mallikharjuna Rao PW.4: Chintala Ramesh PW.5: Korrapati Venkateswarlu PW.6: Rayapati Siva For Defendant:
DW.1: Nerella Venkata Kotaiah/Defendant
DOCUMENTS MARKED
For Plaintiffs:
Ex.A1: Registered agreement of sale dated 19.04.2005 Ex.A2: Part-payment endorsement dated 05.04.2007 Ex.A3: Office copy of legal notice dated 08.03.2011 along with postal receipt Ex.A4: Office copy of same legal notice sent to business address Ex.A5: Postal Acknowledgment of notice sent to house address Ex.A6: Postal Acknowledgment sent to business address Ex.A7: Balance amount deposit challan dated 19.07.2014 Ex.A8: Credit Voucher dated 31.03.2005
For Defendant: Ex.B1: Certified copy of attachment petition, Affidavit, Schedule in IA 500/2011 Ex.B2: Certified copy of plaint copy in OS 16/2013 on the file of Hon’ble Additional
District Judge, Narasaraopet
Ex.B3: Endorsement dated 14.03.2015
Sd/-B.L.V.Seshadri
CIVIL JUDGE (SENIOR DIVISION),
GURAZALA
30
IN THE COURT OF THE CIVIL JUDGE (SENIOR DIVISION) : : GURAZALA
PRESENT :- SRI B.L EELA V ENKATA S ESHADRI ,
CIVIL JUDGE (SENIOR DIVISION), GURAZALA
Tuesday, this the 26th day of March, 2024
Original Suit Number 261 of 2011
Between :
1. Nelluri Parvathaiah (Died)
2. Nelluri Mangamma, W/o.late Parvathaiah, 66 years.
3. Nelluri Kumara Swamy, S/o.late Parvathaiah, 47 years.
4. Nelluri Venkaiah, S/o.late Parvathaiah, 45 years.
5. Nelluri Bharathi, D/o.late Parvathaiah, 43 years. All are R/o.Rama Talkies Lane, Macherla Town and Mandal, Guntur District. (Plaintiff Nos.2 to 5 were added as per orders in I.A.No.220/2021 dated 29.10.2021) … Plaintiffs
And
Nerella Venkata Kotaiah, S/o.Subbaiah, 70 years, Business, R/o.D.No.10-1-10/55, Nehru Nagar, Macherla, Guntur District. … Defendant The plaintiffs filed the suit for specific performance of agreement of sale
dated 19.04.2005 directing the defendant to execute a regular registered sale deed in
favour of the newly added plaintiffs at their expense in respect of the plaint schedule mentioned property by receiving the balance of sale consideration of Rs.1,55,000/- within the time fixed by the court and if he failed to do so, the court itself may execute the sale deed on behalf of the defendant in respect of the plaint schedule mentioned property; for consequential delivery of the plaint schedule mentioned property to the plaintiffs alternatively, grant decree for refund of the amount together with interest; and for costs of the suit.
Plaint presented on : 30.04.2011 Plaint lastly represented on : 07.09.2011 Plaint filed on : 09.09.2011
Cause of action for the suit arose on when the defendant offered to sell the same to the plaintiff No.1, the plaintiff No.1 paid earnest money, the defendant has executed an agreement of sale in favor of the plaintiff No.1 subsequently, plaintiff No.1 several times requested and demanded the defendant to execute a regular registered sale deed in his favour by receiving balance of sale consideration but when the defendant admitting his liability has been postponing to execute regular registered sale deed in favour of the plaintiff No.1 when the plaintiff No.1 got issued a legal notice dated 31 08.03.2011 calling upon him to come forward to execute regular registered sale deed but when the defendant did not choose to perform his part of contract and the suit schedule mentioned property is situated at Macherla, which is within the jurisdiction of this court.
Valuation:- The claim of the suit for specific performance of contract of agreement of sale is valued at Rs.6,55,000/- on which a court fee of Rs.9,026/- is herewith paid U/Sec.39
(a) of APCF & SV Act.
This suit is coming up before me for final hearing on 15.03.2024 in the presence of Sri J.Nageswara Rao, Advocate for the Plaintiffs; Sri P.Harinadha Babu and Sri A.Srinivasa Rao, Advocates for Defendant and upon perusing the material on record, this court doth order and preliminary decree as follows:-
1. that the suit be and the same is hereby dismissed;
2. that the plaintiffs are entitled for return of an amount of Rs.1,55,000/- (Rupees one lakh fifty five thousand only) which was paid on 22.07.2014 under Challan in the court towards the balance amount of registered agreement of sale dated 19.04.2005;
3. that each party do bear their own costs; Costs of the defendant taxed to Rs.35,202/-
Given under my hand and the seal of the court, this the day of 26th day of March, 2024.
Sd/-B.L.V.Seshadri
CIVIL JUDGE (Senior Division),
GURAZALA.
TABLE OF COSTS
For PlaintiffsFor Defendant Vakalat2-002-00 Plaint fee9,026-000 Petition stampsCM & FC0 Processnot filed0 Advocate Fee35,000-00 Writing & Typing Charges 200-00 Total: *9,028-0035,202-00 *institution costs.
Sd/-B.L.V.Seshadri
CIVIL JUDGE (Senior Division),
GURAZALA.
32
S C H E D U L E
Narasaraopet R.D., - Macherla Sub-District – Macherla Municipal Area – Nehru Nagar, - Macherla Village D.No.603 out of Ac.1.17 cents – Municipal Assessment No.1022005330 – an extent of 284.89 square yards or 238.16 square meters of site with RCC daba house bearing D.No.10-1-10/55 constructed in an extent of 1240 square feet being bounded by: -
East: Site of Nerella Peda Venkata Subba Rao and wall of Nerella Venkata Kotaiah 73.1 feet. South : Road 35.1 feet West : Bazar73.1 feet North : Poluri Gopala Rao35.1 feet
Sd/-B.L.V.Seshadri
CIVIL JUDGE (Senior Division),
GURAZALA.