Page No. 1 of 16 A.S.No.28 of 2018
IN THE COURT OF THE JUDGE: FAMILY COURT-CUM-
III-ADDITIONAL DISTRICT JUDGE AT MAHABUBNAGAR
Friday, this the 21st day of April, 2023
Present:- Smt.P.Neeraja,
Judge,
Family Court-Cum-III ADJ, Mahabubnagar.
A.S.No.28 of 2018
Between:-
Vattipally Sudarshan Reddy S/o. V. Chinna Reddy, Aged 54 years, Occ, R/o:H.No.16-11-693, Flat No.104 (Manikanta Apartments), Old Gaddi Annaram, Dilsukhnagar, Hyderabad.
… Appellant/defendant.
AND
M/s.Vision Labs, Rep. by its Director T. Laxmikanth Reddy S/o. T. Rama Reddy, Aged 46 years, Occ:Business, R/o:H.No.16-11-23/27/A, Flat No.205 & 207, II Floor, RTA Office, Moosarambagh, Hyderabad.
…Respondent/plaintiff.
Sub:- An appeal under Section 96 CPC r/w Order XLI Rule 1 of C.P.C against the judgment and decree passed in O.S.No.6/2010 on the file of II Addl. Senior Civil Judge’s Court, Mahabubnagar, dated 15.02.2018
O.S.No.6/2010
Between:-
M/s. Vision Labs, Mosarambagh, Hyderabad.
… Plaintiff. AND
Vattipally Sudarshan Reddy.
…Defendant.
Sub:- Suit for recovery of Rs.3,48,320/- towards advance amount paid by the plaintiff to the defendant as per agreement of sale dated 04.07.2009 including interest.
Page No. 2 of 16 A.S.No.28 of 2018 * * *
This appeal suit is coming up before me on 10.03.2023 for final hearing in the presence of Sri Pradeep Kumar Patil, Advocate for the appellant and Sri K. Anand Rao, Advocate for the respondent, and upon hearing the arguments and upon perusing the material on record, this Court delivered the following:-
J U D G M E N T
This is an appeal filed by the appellant who is unsuccessful defendant in O.S.No.6/2010, aggrieved by the judgment and decree dated 15.02.2018 passed by Senior Civil Judge, Shadnagar FAC II Additional
Senior Civil Judge, (FTC) Mahabubnagar in O.S.No.6/2010, wherein the
suit of the respondent/plaintiff was decreed for Rs.3,48,320/- with interest @ 6% per annum on Rs.3,11,000/- from the date of suit, till realization.
2.The parties will hereinafter be referred as plaintiff and defendant for the sake of convenience.
3.The facts of the case as set out by the plaintiff in the plaint, in brief, are as follows:
The plaintiff is a partnership firm engaged in the business/field of environmental consultancy, represented by director/partner,
T.Lakshmikanth Reddy. The plaintiff had entered into an agreement of sale on 04.07.2009, in respect of agricultural land bearing Sy.No.66/A and 66/E situated at Kotha Molgara village, Bhoothpur mandal, Mahabubnagar
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district i.e., the suit schedule land for a total sale consideration of
Rs.12,45,000/-. The plaintiff paid advance of Rs.3,11,000/- to the defendant, on the date of agreement of sale. On receipt of the said amount, the defendant acknowledged the same.
4.The defendant having agreed to demarcate and fix the boundaries to the suit schedule land, by engaging authorized government surveyor within the stipulated time i.e., 45 days, failed to do so. Thereafter, he sought one month time for getting demarcated and to fix the boundaries and the same was endorsed on backside of original agreement of sale by him, with his own writing. Inspite of extending time, the defendant failed to fulfill the conditions as prescribed in para No.6 of agreement of sale. Several times, the plaintiff orally requested the defendant to register the land after fulfilling the conditions in para 6 of the agreement of sale, but the defendant failed to do so. Vexed with dodging attitude of the defendant, the plaintiff issued notice dated 15.10.2009 through registered post, requesting him to fix up the boundaries and to demarcate the said land, by government surveyor and to execute registered sale deed in his favour. The defendant wantonly not claimed the said notice. The plaintiff again issued legal notice to the defendant on 05.11.2009, calling upon him to return the advance amount of Rs.3,11,000/- received under agreement of sale on
Page No. 4 of 16 A.S.No.28 of 2018 04.07.2009, failing which he will be liable to pay interest @ 24% per annum till realization of the said amount and it will be constrained to file civil and criminal cases against him. The defendant refused to receive the said notice by not claiming. The plaintiff is always ready and willing to perform its part of contract. The defendant himself dodged the matter.
Hence, the suit.
5.The defendant filed written statement, admitting that the plaintiff and himself entered into an agreement of sale on 04.07.2009 in respect of suit schedule property for a total sale consideration of Rs.12,45,000/- and he received Rs.50,000/- before the agreement on 14.06.2009 and on 04.07.2009 the plaintiff paid Rs.2,61,000/- totaling to Rs.3,11,000/-.
6.It is contended by the defendant that he had questioned the government mandal surveyor as per the application of the plaintiff company's partner by name T. Srinivas Reddy advocate made on 22.06.2009 before Tahasildar Bhoothpur. Bhoothpur mandal surveyor issued notice to T. Srinivas Reddy on 27.06.2009. The mandal surveyor conducted survey of the land bearing Sy.Nos.61/A, 66/A and 66/E, and conducted panchanama by fixing the boundaries. When the survey was conducted before the agreement, the question of again demarcating and fixing boundaries does not arise. The defendant is ready to register the suit
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schedule land in favour of plaintiff. The plaintiff with all false allegations filed this suit, and approached the Court with unclean hands. The plaintiff itself was seeking time for payment of remaining balance sale consideration of Rs.9,34,000/- and it did not come to the registration office, as per the agreement. It is further submitted by the defendant that as per the revenue records, he was the absolute owner and title holder of the land vide registered document No.8806/2006 dated 16.11.2006, executed by K.Vazzra Lingam and he was ready to perform his part of contract. As per the link document bearing No.3583/2004 several persons sold the land in Sy.No.66 to Vazzra Lingam and he had purchased the land admeasuring
Ac.05-5½ guntas from him. As there is a big rock in an extent of 23 guntas of his land, leaving it, agreement was executed in respect of
Ac.03-00 guntas of land. Even as on today, he is ready to register the land in favour of the plaintiff as per the agreement. The defendant, prayed to dismiss the suit, with costs.
7.Basing on the above pleadings of the both parties, following issues were framed for trial:
1. Whether the plaintiff is entitled to seek refund of advance amount paid to the defendant?
2. To what relief?
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8. During the course of trial, the plaintiff examined himself as P.W.1 and got marked Exs.A1 to A16 and the defendant examined D.Ws.1 to 3 on his behalf. No documents were marked on behalf of the defendant.
9.The trial Court passed it’s judgment on merits, holding that the plaintiff could establish his case against the defendant, as such he is entitled for refund of money from him. Aggrieved by the said judgment, the defendant preferred this appeal, on the following grounds :-
1. Though the defendant is ready and willing to perform his part of contract, the trial Court did not observe the same and decreed the suit for recovery of amount on the ground that he sold part of land to others. When the suit agreement is not terminated and it is still in existence, it is for the respondent’s company to file suit for specific performance of contract as per Section 19 of Specific
Relief Act, with alternate relief. It is not the case of the respondent that the title of his vendor is defective, to seek refund of advance amount.
2. As the plaintiff company was not in a position to pay the balance sale consideration of Rs.9,34,000/-, it has filed the present suit.
3. As the plaintiff failed to pay balance amount, within stipulated time, the defendant had forfeited the earnest money paid by him.
The trial Court ignored the said aspect.
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10.The defendant with the above contentions prayed to set aside the judgment of the trial Court.
11.The following points emerge for consideration, in this appeal are :
1. Whether the plaintiff is entitled for refund of amount, from the defendant, as prayed for?
2. Whether the judgment of the trial Court suffers from any illegality and irregularity?
and
3. Whether the judgment of the trial Court dated 15.02.2018 in
O.S.No.6/2010, is liable to be set aside?
12.Learned counsel for appellant filed written arguments. The respondent did not choose to advance arguments, inspite of granting sufficient time.
13.POINT Nos.1 and 2:-
It is the specific case of the plaintiff that in the agreement of sale executed between them in respect of suit schedule property the defendant having agreed to get fixed the boundaries to the suit schedule property, by engaging authorized government surveyor in paragraph No.6 of the agreement of sale, failed to do so, inspite of his issuance of legal notice and that he failed to refund the advance sale consideration of Rs.3,11,000/-
Page No. 8 of 16 A.S.No.28 of 2018 inspite of issuance of legal notice by him and in the circumstances, it is entitled for refund of the advance sale consideration paid by it, to the defendant, along with interest.
14.The defendant resisted the claim of the plaintiff, on the ground that the suit schedule property was already got surveyed prior to execution of agreement of sale in the presence of plaintiff and that the plaintiff himself failed to get register the sale deed by paying balance sale consideration and that the appropriate remedy available to the plaintiff, is to file suit for specific performance of agreement of sale and seek alternative relief of refund of advance sale consideration.
15.The plaintiff examined P.W.1 on its behalf and got marked Exs.A1 to A16. As seen from Ex.A3 agreement of sale dated 04.07.2009, executed between both parties, the defendant sold Ac.03-00 guntas of land i.e., suit schedule property out of Ac.05-05 guntas of land, to the plaintiff for a total sale consideration of Rs.12,45,000/- and received Rs.3,11,000/- towards advance sale consideration. It was agreed that purchaser shall pay the balance sale consideration of Rs.9,34,000/- to the vendor at the time of registration of sale deed before 45 days from the date of agreement. It was further agreed that in the event of failure of execution of registered sale deed by the vendor by receiving remaining sale consideration from
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vendee, the vendee shall have right to initiate for execution of registered sale deed against the vendor and that the vendor has to fix up the boundaries of the schedule property, by engaging authorized government surveyor. As per the endorsement on the backside of page No.2 of agreement of sale dated 18.08.2009, the parties could not get the document registered due to unavoidable circumstances within 45 days, as such, one month time was extended with the consent of both parties, without any force from anybody.
16.It is the contention of the plaintiff that the defendant did not get surveyed the land and fixed the boundaries, as agreed in paragraph 6 of the agreement, for payment of balance sale consideration by him and to get the registered sale deed executed. Ex.A5 is the receipt issued by the defendant for Rs.3,11,000/- paid by the plaintiff towards advance sale consideration.
Under Ex.A6 legal notice dated 15.10.2009, the plaintiff demanded the defendant to fix up the boundaries of schedule property, by engaging authorized surveyor and to come forward to execute registered sale deed in his favour, within 7 days. It was alleged in the said legal notice that, inspite of several requests made by the plaintiff, the defendant had postponed the survey of the land on one pretext or the other, despite lapse of time, as agreed between them. It is pleaded by the plaintiff that the said
Page No. 10 of 16 A.S.No.28 of 2018 legal notice was returned unclaimed. Ex.A6 is the returned postal envelope. Under second legal notice dated 05.11.2009, got issued by the plaintiff to the defendant, it was alleged that as per the agreement, the defendant had not demarcated the land to be sold to him and that the legal notice got issued by him was returned unclaimed and that inspite of his readiness to pay balance sale consideration, the defendant did not come forward to get surveyed the land and execute the sale deed and that when he visited the said land, some third parties were in occupation of it, raising objection that they are in possession of the land and it belongs to them, as such, he is unable to proceed with completion of the sale deed as agreed and that he is clear in his mind that the land which was offered to be sold by the defendant is, in some dispute. Under Ex.A9, the plaintiff cancelled the agreement of sale and demanded advance sale consideration paid by him with interest @ 2% per month, till realization.
17.It is further contended by the plaintiff that the said notice was also unclaimed by the defendant, therefore, it is deemed service of notice on him. The plaintiff in support of his plea that, the land sold by the defendant under Ex.A3 agreement of sale to him is in dispute, relied upon
Ex.A15 copy of complaint filed by the defendant against his vendors
K. Vazzra Lingam and M. Narsimha Reddy, wherein, it was averred that,
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through accused No.2, he had purchased part of land by Sy.No.66/E admeasuring Ac.04-25½ guntas, situated at Kothamolgara village of
Bhoothpur mandal through registered sale deed document bearing
No.8806/2006 dated 16.11.2006. A perusal of Ex.A3 agreement of sale reveals that the defendant had mentioned the said sale deed, in it.
18.It was further alleged in Ex.A15 complaint by the defendant that, after purchase of the said land, on enquiry, with Tahasildar Bhoothpur, he was informed that the land admeasuring 23 guntas purchased by him, through said registered sale deed is not in existence and that he had purchased the land under bonafide belief and that when he went to the suit land for cultivation, one Laxmaiah, resident of Kothamolgara raised objection stating that, he is the owner of that piece of land. Thus, the accused with common intention sold 23 guntas of land, which is not in existence and thereby played fraud on him. Ex.A16 is certified copy of
FIR registered on the complaint of the defendant for the offences under
Sections 420 and 417 of IPC. P.W.1 in his cross examination deposed that, it was incorporated in the agreement of sale dated 04.07.2009 that, in the event of failure of registration of sale deed by the vendor, by receiving remaining consideration from the vendee, the vendee shall have right to initiate proceedings for execution of registered sale deed against him and
Page No. 12 of 16 A.S.No.28 of 2018 that there is no specific recital in the agreement of sale that in case of failure of execution of sale deed by the vendor, the vendee shall get refund of the amount paid. The plaintiff has denied the alleged survey, conducted by the surveyor, prior to execution of agreement of sale.
19.P.W.1 in his cross examination further deposed that Ex.A4 endorsement was written by the defendant and it contains his signature. It is not the case of the defendant that, he had taken any steps for cancellation of agreement of sale, when the plaintiff failed to pay balance sale consideration. There is no recital in Ex.A3 agreement of sale that, the defendant can rescind the agreement of sale, in case of the plaintiff’s failure to pay balance sale consideration. The defendant for the first time in his affidavit of examination in chief, pleaded that the market value of agricultural land is decreasing day-by-day and that with mutual consent himself and P.W.1 settled that he shall adjust Rs.3,11,000/- advance money paid by P.W.1 in lue of loss and damage, that would be caused to him, in the event of sale of the land, due to decrease in the market value of land and that P.W.1 has renounced his claim over the amount paid by him, towards advance sale consideration and given consent for sale of the land to anybody else.
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20.D.W.1 in his affidavit of examination in chief itself, categorically admitted that consequent to failure of P.W.1 to purchase the land covered by agreement of sale, with his consent in order to meet his family necessity, he had sold Ac.02-27 guntas of land out of it, to one
Smt.K.Nirmala, through registered sale deed document No.6977/2013
dated 24.06.2013, at the prevailing market value and that he had also sold
the land in Sy.No.61/AA admeasuring Ac.00-10½ guntas, in Sy.No.66/E admeasuring Ac.02-09½ guntas and in Sy.No.66/EE admeasuring Ac.00- 20 guntas to K. Ashok Reddy, C. Gal Reddy and B. Venkateshwarlu through registered sale deed document No.6978//2013 dated 24.06.2013 for a total sum of Rs.3,78,500/- which was the prevailing market value.
21.D.W.1 in his cross examination also admitted that, he received
Rs.3,11,000/- from the plaintiff. D.W.1 further deposed that he does not know whether clause 6 of Ex.A3 says that he had agreed to fix up the boundaries of the schedule property, by engaging an authorized government surveyor, since, he is an uneducated person. D.W.1 admitted the private complaint lodged by him under Ex.A15. D.W.1 in his cross examination, categorically admitted that Ex.A6 and Ex.A9 legal notices reflect his residential address as H.No.16-11-693, plot No.104 old
Gaddiannaram, Dilsukhnagar, Hyderabad. D.W.1 further admitted that, he
Page No. 14 of 16 A.S.No.28 of 2018 was residing in the said address as on the date of suit. In the regard, it is the specific contention of the plaintiff that above admission of D.W.1 makes it clear that, he has knowledge of Ex.A6 and Ex.A9 legal notices and wantonly he got them returned. When admittedly, there was dispute regarding the suit schedule property and it was not got surveyed and boundaries were not fixed as agreed in agreement of sale, the question of the plaintiff seeking specific performance of said agreement of sale does not arise. That apart, admittedly the defendant had sold away part of the suit schedule land, pending disposal of the suit.
22.The defendant in support of his case, relied upon the testimony of
D.Ws.2 and 3. The evidence of D.W.2 also makes it clear that, there was dispute regarding the land in suit survey number between the defendant and his vendors. The evidence of D.W.3 though supports the case of defendant, regarding the alleged survey of the suit schedule land, admittedly, he did not sign on the alleged survey and panchanama and he does not know, who signed on it and he does not know about the survey report. The evidence adduced by both parties, clinchingly establishes the fact that there was dispute regarding the land sold by defendant, in favour of the plaintiff under Ex.A3 agreement of sale and due to which, he failed to get surveyed the land and fixed the boundaries, as agreed in agreement
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of sale and that on coming to know the same, the plaintiff got issued legal notice initially for survey of land and to execute the registered sale deed and thereafter for refund of the amount paid by him towards advance sale consideration. Though, the time was essence of the contract under Ex.A3, the evidence makes it clear that due to lapse on the part of the defendant, it could not be performed. Learned trial Judge relied upon the judgment between Mudureddipalle Sanjeeva Reddy AND Butturu Rama Mohan
Reddy and others reported in 2010(1) ALD 470, wherein it was held that the suit for refund of earnest money is maintainable, as it is not possible to execute registered sale deed by the defendant, as he admittedly sold away suit schedule property to third parties”. In this case also, when admittedly the defendant sold away the part of the suit schedule property to third parties and said land is in dispute, specific performance of Ex.A3 agreement of sale is not possible and only remedy available for the plaintiff is, to seek refund of advance sale consideration paid by him.
23.In view of the above discussion, this Court is of the considered view that the plaintiff is entitled for the relief claimed. Accordingly, the point
Nos.1 and 2 are answered.
24.POINT No.3:-The trial Court has properly appreciated oral and documentary evidence on record and came to a right conclusion that, in
Page No. 16 of 16 A.S.No.28 of 2018 view of the defendant selling away the suit schedule property to third parties, it is not possible to execute registered sale deed in favour of the plaintiff and remedy available for the plaintiff is to seek refund of the advance sale consideration paid by him. Therefore, this Court has not seen any illegality or irregularity in the judgment of the trial Court and the defendant/appellant is not entitled to set aside the judgment of the trial
Court dated 15.02.2018 in O.S.No.6/2010. Accordingly, the point is answered.
25.In the result, the appeal dismissed, confirming the judgment and decree dated 15.02.2018 in O.S.No.6 of 2010, passed by the trial Court.
No costs.
Dictated to the stenographer, transcribed by her, corrected and
pronounced by me in the open Court, this the 21st day of April, 2023.
Judge,
Family Court-cum-III ADJ., Mahabubnagar. Appendix of evidence Witnesses examined -NIL-
Exhibits Marked. -Nil-
Judge,
Family Court-cum-III ADJ., Mahabubnagar. Fair copied by me.