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IN THE COURT OF XV ADDL. DISTRICT & SESSIONS JUDGE, NUZVID,
PRESENT: SMT G.RAJANI XIADDL. DISTRICT & SESSIONS JUDGE, GUDIVADA. FAC. XVADDL. DISTRICT & SESSIONS JUDGE, NUZVID.
THIS THE 2nd DAY OF NOVEMBER, 2022.
O.S.No.88 OF 2013
Between:
Parvathaneni Prameela Rani … PLAINTIFF A N D 1.Alvala Pitchamma
2. Desireddy Rama Devi (Added as per the order in I.A.No.1/18, dt. 18.1.2018 as proposed party)
...DEFENDANTS
This suit coming for final hearing before me on 21.09.2022 in the presence of Sri N.Srinivasa Reddy, Advocate for the plaintiff and of Sri K.V.K.Vikram Kumar, Advocate for the defendants and upon perusing the material on record, and on considering the connected material papers and submissions of both side counsels and the matter having been stood over till this day for consideration, this Court delivered the following:
J U D G M E N T
1) The suit is filed by the plaintiffs against the defendants for specific performance of agreement of sale dated 26.12.2011 to direct the defendants to execute registered sale deed in favour of the plaintiff in respect of the suit schedule property at the expense of the plaintiff within a reasonable period prescribed by this court on a duly stamped paper supplied by a plaintiff as required under law (or) alternatively, to direct the defendants to return the advance amount of Rs.8,00,00000 received by the first defendant as mentioned in the agreement of sale from the plaintiff with interest and incase the defendant failed to execute registered sale deed in favour of the plaintiff within the time prescribed, the same may be executed through this court on payment of necessary stamps etc.
2)As per the averments of the plaint the case of the plaintiff is that the defendant is the absolute owner of the plaint schedule property and in 2 exclusive possession and enjoyment of the said property. She offered to sell the plaint schedule property for an amount of Rs.22,81,50000 to the plaintiff on 26.12.2011 which the plaintiff agreed to purchase for the said amount. Therefore the defendant has executed an agreement of sale dated 26.12.2011 in favour of the plaintiff for the said amount and paid an amount of Rs.8,00,00000 as advance and the remaining amount was agreed to be paid within sixty days from the date of the agreement and also agreed to survey the extent of the land on the even date. The defendant has received the advance amount and issued a receipt acknowledging in the agreement itself. Even though the plaintiff was always willing and ready to pay the remaining amount upon survey of land by the defendant, the defendant did not come forward by surveying the land and was not ready to perform her part of contract and postponing the survey of land and receive the balance sale consideration for some reason or other whenever the plaintiff has demanded. Finally the plaintiff has issued a legal notice on 19.8.2013 through her advocate calling upon her to survey the land and to receive the balance sale consideration and execute the registered sale deed in favour of the plaintiff within ten days from the date of receipt of the notice in respect of the plaint schedule property upon which the defendant having received the same gave an evasive reply and failed to perform and neglected to perform her part of contract and in the second week of August 2015 during the pendency of the suit proceedings the plaintiff came to know that the first defendant has executed a registered gift deed dated 14.3.2013 vide document No.917/2013 in the office of the SubRegistrar, Vissannapet,
Krishna District in favour of the second defendant to avoid his liability and to defeat the legal proceedings pending before this court. The said transaction cannot bind the plaintiff and the present suit and the 3 documents which are brought into existence are nominal, sham and nothing to do with the plaintiff’s claim. The suit is filed within three years from the date of agreement of sale and the plaintiff need not claim any relief of cancellation of the said nominal document and hence the suit.
3)Upon receipt of summons the first defendant has filed the written statement which was adopted by the second defendant by filing an adoption memo while denying the plaint averments the contention of the defendants is that originally the husband of first defendant along with
Alavala Krishna Reddy purchased some land jointly through a registered sale deed dated 15.8.1984 and later they partitioned orally and in that partition the schedule property fell to the share of this defendant. Later in the year 1999 at the time of marriage of her daughter ie., the second defendant she gave it as pasupukumkuma along with other properties and since then she alone is in possession and enjoyment of the schedule property and accordingly a document was also given in writing by this defendant and her husband, Kesava Reddy on 2.1.1999. The husband of the second defendant namely Upendra Reddy who is working as Inspector of police has shown the schedule property as his family property in the declaration given by him to his department as Government servant.
While so, her daughter and soninlaw intended to purchase one apartment in Hyderabad and tried to sell the schedule property and when the same was offered for sale the plaintiff approached through one Nalluri
Srinubabu and agreed to purchase the suit schedule property and paid
Rs.8,00,00000 towards advance, subject to payment of balance sale consideration within sixty days from the date of agreement with a clear recital in respect of payment of balance sale consideration within sixty days. But the plaintiff has never shown up her face till now to pay the balance sale consideration within sixty days nor expressed her readiness 4 and willingness to perform her part of contract. Therefore the matter was placed before the elders namely Desireddy Raghava Reddy,
K.Ramakrishna Reddy, Gurava Reddy, U.seetha Ramudu and D.Upendra
Reddy in or about the March, 2012 and the settlement was suggested by the said elders also became useless due to failure of the plaintiff to pay the balance sale consideration. In fact the plaintiff is only a name lender and the real person behind the transaction is one Nalluru Srinubabu. On the failure of the plaintiff, the second defendantRama Devi and her husband were forced to forego the amount of advance given to the vendor for purchase of their apartment at Hyderabad and on the failure of the plaintiff to pay the balance sale consideration as time is the essence of the contract to get executed the registered sale deed in favour of the plaintiff. Therefore the first defendant has executed a registered gift deed on 14.3.2013 vide document No.917/2013 in favour of her daughter as she has agreed to give her at the time of her marriage as pasupukumkuma as some ill feelings cropped up between this defendant and her daughter on the failure of purchase by the plaintiff, the plaintiff did not approach the court with clean hands and she suppressed the above fact.
It is further contended that the agreement of sale had taken place on 26.11.2011 which clearly shows that the time is the essence of the contract and the plaintiff knowing very well that the schedule property was offered for sale for purchase of property at Hyderabad but by that time she did not pay the balance sale consideration and for the first time through the notice dated 19.8.2013 she expressed her readiness and willingness to pay the balance sale consideration, demanding the defendant to come forward for registration by receipt of the balance sale consideration and there is no iota of material to show that she had come 5 forward to get a registered sale deed and to pay the balance sale consideration in terms of the agreement of sale, as she failed to perform her part of contract, she is not entitled for the relief sought and there is no tenability in the claim of the plaintiff and as such the suit is liable to be dismissed.
4)Basing on the above pleadings, my learned predecessor has settled the following issues for trial:
1. Whether the plaintiff is entitled for specific performance of contract in pursuance of terms and conditions of agreement of sale dated 26.12.2011?
2. Whether sixty days time is stipulated for the purpose of the contract in default the plaintiff has to forego the advance amount?
3. Whether the time is essence of the contract?
4. To what relief?
5) On behalf of the plaintiff, the plaintiff got examined herself as
P.W.1 and got examined the scribe of the agreement of sale as P.W.2 and got marked Exs.A.1 to A.5 to prove the suit claim. On behalf of the defendants D.Ws 1 and 2 are examined and Ex.B.1 is marked through
D.W.2.
6)ISSUES No.2 & 3:
Both these issues are interrelated and therefore they are discussed at a stretch for the sake of convenience.
Before deciding issue No.1 it is essential to decide issues 2 and 3 at
the first instance, since the parties are claiming that there is a stipulation in the agreement of sale that the plaintiff has to pay the balance sale consideration within sixty days from the date of the agreement of sale and get executed the registered sale deed by paying the balance sale consideration. The witnesses examined for the plaintiffs i.e., P.w.1 during her evidence while reiterating the contents of the plaint has marked
Ex.A.1 the original agreement of sale, Ex.A.2 the office copy of legal notice, Ex.A.3 the original postal receipt, Ex.A.4 the original postal 6 acknowledgment and Ex.A.5 the original reply notice in support of the plaintiff’s case. Ex.A.1 is the crucial document to decide this case. During her crossexamination P.W.1 deposes that her husband looked after the entire transaction covered under Ex.A.1 agreement and the contents of
A.1 are drafted as per the instructions of her husband, while the actual negotiation took place between her husband and the husband of D.1 relating to the transaction under Ex.A.1. But she further states that she knows the contents of suit sale agreement. As per the recitals of Ex.A.1 there is a condition of four months or six months, stipulated for enforcing the terms of contract and for registration. She denied the suggestion that as per the terms of agreement the balance sale consideration has to be paid within two months by her.
7)This part of evidence of P.W.1 clearly shows that she has no personal knowledge about the recitals and contents of Ex.A.1 since it is her husband, who looked after the entire transaction under Ex.A.1 and it was also drafted as per the instructions of her husband. During further crossexamination she admitted that the balance sale consideration has to be paid within sixty days and that they have not paid the balance sale consideration within that period though she stated that they were ready with the balance to perform their part of contract. She further admits that she has not given any notice to the defendants after completion of sixty days period informing that she was ready with the balance sale consideration but she orally informed them. During her crossexamination
dated 10.8.2018 she further states that she has not given any legal notice
within sixty days from the date of Ex.A.1 for enforcing the contract and volunteered that the defendant has not taken any steps for getting the property measured but however she also admitted that there is no recital in Ex.A.1 that within sixty days steps have to be taken by the defendant to 7 get the property measured and she has not given any notice even within one year to take steps for enforcing the contract demanding the defendant to come forward for measuring the property and registration. She also stated that the proposed purchaser has got the responsibility for verifying the existence of property and its genuinenity and title over the property.
Keeping in view these admissions of P.W.1 a perusal of Ex.A.1 agreement of sale dated 26.12.2011 clearly shows that the plaintiff and the first defendant have agreed for the sale transaction in respect of the plaint schedule property @ Rs.22,81,50000 and on the date of Ex.A.1
Rs.8,00,00000 was paid and the balance sale consideration of
Rs.14,81,50000 has to be paid from that day within sixty days and soon after receipt of the balance sale consideration the schedule property will be registered as per the instructions of the buyer at the expense of the buyer. It is also recited that before the date of registration the schedule property will be surveyed and if during the survey if the land is in excess of the land under the agreement, the plaintiff agreed to pay half of the price for the excess land.
8) Therefore the above recital clearly shows that the plaintiff has agreed to pay the balance sale consideration within sixty days and upon receipt of the balance sale consideration only the first defendant has agreed to register the property in her favour as per her instructions which shows the specific condition that the defendant No.1 will register the property only after receipt of the balance sale consideration and it is further agreed that before registration the land will be surveyed by the first defendant which clearly indicates that the plaintiff has to pay the balance sale consideration within sixty days of execution of Ex.A.1 in order to demand the first defendant to execute registered sale deed. P.W.1 during her crossexamination has confirmed the same that she has pay 8 the balance sale consideration within sixty days from the date of Ex.A.1 though initially she stated that there is a stipulation of time for four months or six months. Therefore for the defendant to execute the registered sale deed the plaintiff has to pay the balance sale consideration within sixty days.
At this juncture the contention of the learned defence counsel is, that time is the essence of the contract and since the plaintiff has failed to pay the balance sale consideration within sixty days as per the stipulated term in Ex.A.1 she is not entitled to seek the relief of specific performance of agreement of sale and she is not even entitled for return of the advance amount as she did not get ready herself for registration by paying the balance sale consideration. On the contrary the contention of the learned counsel for the plaintiff is that the stipulation that time is the essence of the contract will not apply to the agreements for immovable property and as per the settled law in a transaction for sale of immovable properties time is not the essence of contract. In support of the same the learned counsel for the plaintiff has submitted the following rulings: (1) Govind Prasad Chaturvedi V.Hari Dutt Shastri (para 5) wherein it was held that “It is settled law that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. When a contract relates to sale of immovable property it will be normally presumed that the time is not the essence of the contract 1.
Gomathinavagam Vs Pallaniswami Nadar It may also be mentioned that the language used in the agreement is not such as to indicate the unmistakable terms that the time is of the essence of contract.
The intention to treat time as the essence of the contract may be evidenced by circumstances which are sufficiently strong to displace 9 the normal presumption that in a contact of sale of land stipulation as to time is not the essence of contract.” (2) Smt Indira Kaur and others Vs. Shri Shee Lal Kapoor AIR 1988 Supreme court 1074, it is held that “ The law is well settled that in transaction of sale of immovable properties, time is not the essence of the contract” 1977 (2) SCC 539 P:543544 (SCC para 5) (3) Chand Rani (Smt) dead by Lrs. Vs. Kamal Rani (Smt ) (dead) by
Lrs (1993)1 SCC 519, a constitutional Bench of Apex Court has held that “in the sale of immovable property, time is not essence of the contract.” (4) The Apex Court in Swarnam Ramachandran (Smt.) and Another
Vs. Aravacode Chakungal Jayapalan (2004) 8 SCC 689 has once again reiterated that time is not the essence of contract relating to immovable property; at para No.12 it is observed that “ time is presumed not to be of essence of the contract relating to immovable property, but it is of essence in contracts of reconveyance or renewal of lease. The onus to plead and prove that time was essence of the contract is on the person alleging it, thus giving an opportunity to the other side to adduce rebuttal evidence that time was not of essence. That when the plaintiff pleads that time was not of essence and the defendant does not deny it by evidence, the court is bound to accept the plea of the plaintiff.”
9) Therefore in the present case also no notice is given by the defendant about the rescinding the suit sale agreement and therefore the defendants are not entitled to take the plea that time is the essence of 10 contract and moreover they have not adduced any evidence with regard to the said condition and as such they are not entitled to seek that plea and therefore the suit has to be decreed.
10)On the contrary the contention of the learned counsel for the defendants is that since there is a stipulated condition in Ex.A.1 that the plaintiff has to pay the balance sale consideration within sixty days and upon such payment only the defendant has to execute the registered sale deed in favour of the plaintiff which is evident from the recitals of Ex.A.1 and since the plaintiff failed to fulfill that condition of payment of balance sale consideration within sixty days, she is not entitled for the relief of specific performance of the agreement of sale. The defendant counsel also relied upon the following rulings in support of their contention:
(1) A.K.Lakshmipathy (D) and others V. Rai Saheb Pannalal
H.Lahoti Charitable Trust and others AIR 2010 Supreme
court 577 SC “Contract Act, S.55time is essence of contract, many instance in contract which repeatedly showed that time was to be of essence of contract were specifically mentioned by clear condition in contract that purchasers would have to definitely deposit balance amount by date stipulated in contract for sale –
Held, time was essence of contract, Specific Relief Act.(47 of 1963)Sec. 20 (2) Inti Veera Veni Vs.Mahadasa Vara Lakshmi and another 2005(2) ALD 219 it was held that “Specific Performance Time whether essence of contract – may be inferred from expressed stipulation of contract – terms used in Telugu that said payments have to be made before respective dates – said term makes time 11 essence of contract, notwithstanding fact that delay would attract payment of interest at 18% p.a.” (3) Daya Ram Soni v. Smt Gyarsi BaiKhandelwal and others AIR 2016 Chhattisgarh 73 it was held that “ Contract Act (9 of 1872)
Agreement to sell to immovable property – Time whether essence of contract – As per agreement, balance amount of sale consideration required to be paid by vendee to vendor within period of 91 days agreement also had reference to consequence if there was failure on part of parties in not fulfilling contractual obligation within 91 days – time can be said to be essence of contract.2004(8) SCC 689 distinguished.” (4) Smt.Chand Rani (dead) by L.Rs v. Smt.Kamal Rani (dead) by
L.Rs AIR 1993 SC1742 it was held that “Specific Relief Act –
S.16 agreement to sell immovable property – intention of parties to make time essence of contract – purchaser not willing to make party payment of amount within specified time without fulfillment of some conditions which was contrary to agreement Held, purchaser was not entitled to specific performance of contract, contract Act (9 of 1872) S.55 – In the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the court may infer that it is to be performed in a reasonable time if the conditions are: (1) from the express terms of the contract;(2) from the nature of the property; and (3) from the surrounding circumstances, for example: the object of making the contract.” (5) Gauri Shankar Prasad and others Vs. Brahma Nand Singh AIR 2009 SC (Supp) 917 it was held that “Specific Relief Act (47 of 12 1963) Sc.16 Specific performanceagreement to reconvey property Time is of essence in such agreements – No evidence showing that plaintiff had offered to pay consideration in time fixed – Plaintiff’s claim liable to be dismissed.”
11)Therefore the contention of the learned counsel for the plaintiff is that though it is stipulated in Ex.A.1 that the balance sale consideration has to be paid within 60 days and get ready for registered sale deed by the plaintiff since there is a supplementary condition in Ex.A.1 that the defendant has to get the land surveyed before registration, the time is not essence of the contract in this case and therefore the stipulated condition of sixty days is extended by the said supplementary clause and the defendant cannot claim that the time is the essence of the contract and he is bound to execute the registered sale deed in favour of the plaintiff .
On the contrary the contention of the learned counsel for the defendants is that after payment of the advance sale consideration of Rs.8,00,00000 the plaintiff kept quiet until issuance of registered legal notice under
Ex.A.2 till 19.8.2013 and did not pay the balance sale consideration expressing his readiness and willingness to get the sale deed executed by registration and without making any single effort from his side he came forward with Ex.A.2 legal notice by violating the condition of payment of balance sale consideration within sixty days and as such a suitable reply was issued by the defendants under Ex.A.5 calling upon the plaintiff to furnish a Xerox copy of the said agreement to issue a suitable reply and to bring forward the real facts, since the plaintiff did not come forward for execution of the registered sale deed by paying the balance sale consideration within sixty days he is not entitled for the relief of specific performance.
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12)While the rival contentions of both the parties stand as above, as seen from the crossexamination of P.W.1 she has categorically admitted during crossexamination that the balance sale consideration has to be paid within sixty days as per Ex.A.1 and they have not paid the same within that period. Even though it is settled law that for the transactions in respect of immovable properties, the condition that time is the essence of the contract does not apply but it is pertinent to note that as seen from
Ex.A.1 it is clearly stipulated that the plaintiff has to pay the balance sale consideration within sixty days and soon after the receipt of balance sale consideration only the defendant has agreed to execute the registered sale deed in favour of the plaintiff. But it is also pertinent to note that before registration the defendant has agreed to get the land surveyed and if any excess land is found the plaintiff has to pay half of the rate on the schedule land for the excess land which itself clearly relaxes the condition that the time is the essence of contract. Even though the settled law clearly shows the favourable circumstances in favour of both the parties but in view of the particular term mentioned for survey of land by the defendant it can be inferred from the intention of the parties that the time is not essence of the contract in such cases. Therefore even though the contention of the both the counsels in respect of their respective stands is true and acceptable, but in view of the supplementary condition/clause in Ex.A.1 it can be inferred that the time is not the essence of contract in these kind of cases, even though the same is stipulated under Ex.A.1 and this answers the issue No.3.
13)Now coming to issue No.2 is concerned whether the plaintiff has to forego the advance amount paid as she failed to pay the balance sale consideration within sixty days in view of the default. As seen from Ex.A.1 there is no such default clause mentioned in Ex.A.1. None of the recitals 14 in Ex.A.1 show that what is the remedy in case of default in payment of balance sale consideration to show whether the default itself abridges the right of the plaintiff to forego the advance sale consideration paid or the default itself cuts the right of the plaintiff to claim the relief of specific performance of agreement of sale. Be that as it may, now it is pertinent to discuss issue No.1 at this stage.
14) Issue No.1:
This issue relates to Whether the plaintiff is entitled for specific performance of contract in pursuance of the terms and conditions of agreement of sale dated 26.12.2011?
In a suit for specific performance of agreement of sale, the heart of the contract is always the readiness and willingness of the parties in getting the sale deed executed by way of registration, either by receipt or payment of balance sale consideration from the other party. In this case whether the plaintiff was ready and willing to perform her part of contract after payment of balance sale consideration, is the crucial point. It is categorically admitted by P.W.1 during her crossexamination that they have not paid the balance sale consideration within that period though she stated that they were ready with the balance to perform their part of contract but she further admitted that she has not given any notice to the defendants after completion of sixty days period informing that she was ready with the balance sale consideration, she has also further admitted that she has not given any notice even within one year to take steps for enforcing the contract and also admitted that two years after executing the sale agreement the legal notice under Ex.A.2 was given by her and she has not furnished any document before the court to show that she was ready with the balance sale consideration and she has not mentioned 15 the details of any person or persons through whom she sent a word requiring the defendant to get the property measured, which itself is enough to conclude that even though the plaintiff has entered into Ex.A.1 with the first defendant and paid advance of Rs.8,00,00000 agreeing to pay the balance sale consideration by getting herself ready with the balance sale consideration as she did not take any single step expressing her readiness and willingness for getting the registered sale deed executed in her favour and as she has not furnished any document before this court to show her readiness with the balance sale consideration and the notice was issued by her after lapse of two years by keeping quiet even after lapse of sixty days, her inaction clearly shows that the plaintiff did not move her little finger expressing her readiness and willingness to perform her part of contract by getting ready with the balance sale consideration. At this juncture the learned defendant counsel has submitted ruling with regard to readiness and willingness of the party reported in..
2019(1) ALD 67(SC) Vijay Kumar and others v. Om Prakash it was held that “Section16( c) – Readiness and willingness – proof of –agreement to sell – In order to obtain decree for specific performance, plaintiff has to prove his readiness and willingness to perform his part of contract – And readiness and willingness has to be shown throughout and has to be established by plaintiff
Trial court therefore, rightly taken view that plaintiff not able to prove his readiness and willingness to perform his part of contract – first appellate court as also High Court, not right in reversing judgment of trial courtappeal allowed – impugned order set aside as cannot be sustained.” 16
The above ruling is square by applicable to the facts and circumstances of the present case.
Therefore it is clear that even though the plaintiff paid the advance sale consideration under Ex.A.1 which is not seriously disputed by the defendant but she did not express her readiness and willingness to perform her part of contract by showing the amount ready in her account.
15)The contention of the learned defence counsel and also the evidence of D.W.1 who is the husband of first defendant is that the property under
Ex.A.1 i.e., the plaint schedule property infact was given as pasupukumkuma to their daughter ie., the second defendant at the time of her marriage which was also declared as her pasupukumkuma property in the service register of his soninlaw and his daughter and soninlaw wanted to purchase one apartment in Hyderabad by selling away the plaint schedule property and invest the same for purchase of the apartment. But as the plaintiff has failed to pay the balance sale consideration within time they could not pay the amount in time for the purchase of apartment and as the plaintiff has failed to perform her part of contract the same caused loss to the second defendant and as such the first defendant has executed a gift deed in favour of the second defendant on 14.3.2013 as some ill feelings developed between the defendants 1and 2 as they could not keep up their word to pay the amount for purchase of flat in Hyderabad by selling away the plaint schedule property to the plaintiff by receiving balance sale consideration and in view of the loss caused by the plaintiff the plaintiff is not entitled even for refund and the entire suit of the plaintiff is false and liable to be dismissed.
16)The husband of first defendant as D.W.1 has filed his chief affidavit and reiterated the same facts as mentioned in the written statement. During cross examination though he stated that he has not 17 filed any document to show that his soninlaw Upendar Reddy has shown the suit schedule property in his service records as his family property, seen from the evidence of D.W.2 the said document is marked as Ex.B.1 which is a declaration form in which the plaint schedule property is shown as pasukupukumkuma given to the second defendant.
It is further elicited during the crossexamination of D.W.1 that the first defendant has executed a registered gift deed in favour of the second defendant during pendency of the suit and they did not issue any legal notice to the plaintiff rescinding the agreement of sale and as per the agreement of sale they have to get surveyed the suit schedule land and if there are any deviations they have to adjust the consideration and he denied the suggestion that even though the plaintiff is ready to perform her part of contract and pay balance sale consideration as they failed to survey the land with a malafide intention to knock away the advance sale consideration amount as the value of the suit schedule property was increased and avioded to perform their part of contract. The evidence of
D.W.2 who is the second defendant shows that her mother agreed to sell the plaint schedule property with her consent and she has knowledge about the execution of Ex.A.1 by her mother in favour of the plaintiff and she further stated that there is no record to say that the schedule property is in her possession and further stated that the schedule property is in the possession of her mother and no registered document was executed in her favour in respect of the suit schedule property by her mother and her mother had taken the consideration amount of
Rs.8,00,00000 under the suit agreement and she asked her mother to sell the suit schedule property and she does not know the contents of the suit agreement. She further stated that on 14.3.2013 she obtained a registered sale deed in respect of the suit schedule property and as per 18 the recital in Ex.A.1 they agreed to survey the property and at the end of two months her mother did not give any legal notice to the plaintiff informing her the expiry of time and she does not know whether her mother has taken a plea in the written statement that she executed a registered sale deed in her favour. The above evidence of D.W.2 clearly shows that she has no personal knowledge about Ex.A.1 agreement of sale but she has given consent to her mother to sell away the suit schedule property probably in order to purchase the flat at Hyderabad as contended by the first defendant in her written statement.
It is pertinent to note that the person who entered into Ex.A.1 sale agreement with the plaintiff i.e., the first defendant has not entered into witness box and she was is not even produced as witness before this court. There is no reason as to be she was kept in dark without producing her before the court when she is the original/actual agreement holder and she will be in a better position to speak about the recitals and also the things that had happened between herself and plaintiff. Even though it is admitted by D.W.2 during her crossexamination that her mother is hale and healthy and mentally in suitable condition, but deliberately she was not produced before this court. As per the settled law the person who is in possession of best evidence, deliberately suppressed to produce the same before the court, an adverse inference can be drawn as against the person who fails to produce the best evidence before the court. The learned counsel for the plaintiff has also filed a ruling in support of the said settled preposition of law.
Therefore even the admissions of D.W.2 clearly show that even though the first defendant is very much available and hale and healthy she was not produced before this court to bringout the real facts but however even though the plaintiff contended that the first defendant has 19 executed a registered gift deed in favour of the plaintiff on 14.3.2013 during the pendency of the suit, it is pertinent to note that as seen from the presentation of plaint the suit was filed on 5.12.2013 which means that even before filing the suit the registered gift deed was executed in favour of the second defendant by the first defendant, probably because of the reason that some ill feelings have cropped up between first defendant and the second defendant on her failure to get the balance sale consideration from the plaintiff in order to purchase a flat at Hyderabad and the first defendant might have executed a registered gift deed in favour of her daughter as the same was given towards pasupukumkuma to the second defendant at the time of her marriage to avoid the ill feelings, which is also evident from Ex.B.1.
17)Therefore from the above evidence and admissions of both the parties and the suit documents it can be culled out that there is no dispute between the parties with regard to execution of Ex.A.1 agreement of sale in favour of the plaintiff by the defendant No.1 and the plaintiff has failed to pay the balance sale consideration within time agreed upon between the parties and the defendant has failed to get the land surveyed as agreed upon in Ex.A.1. Further the plaintiff has failed to take any steps by issuing a legal notice soon after expiry of sixty days calling upon the defendant to receive the balance sale consideration and execute a registered sale deed in her favour by expressing her readiness and willingness and kept quiet till the lapse of two years after execution of
Ex.A.1 and there are no steps taken by the first defendant atleast to call upon the plaintiff to pay the balance sale consideration and get the sale deed executed and also informing the plaintiff with regard to survey of land as agreed in Ex.A.1. Further there is no default clause in Ex.A.1 that on the failure of the plaintiff to pay the balance sale consideration 20 and on the failure of the defendant to get land surveyed, what is the solution agreed upon between both the parties. The admissions of P.W.1 during her crossexamination and admissions of D.Ws 1 and 2 during their crossexamination clearly establish that there are lacunas on the part of both the parties and failure on the part of both the parties in performing their part of contract to get the registered sale deed executed by paying the balance sale consideration and also by getting the land surveyed to prove their bonafides. But however as the plaintiff has failed to express her readiness and willingness by getting the amount ready by furnishing her bank statement and kept quiet even after lapse of two years though she filed the suit within the limitation period but kept quiet without making any efforts to get executed the registered sale deed.
Therefore, she is not entitled for the relief of specific performance of agreement of sale. But however as there is no default clause in Ex.A.1 agreement of sale and as no steps are taken by the defendant demanding the plaintiff to get ready with the registered sale deed by paying balance sale consideration expressing his part of contract by getting the land surveyed and as such there is failure on the part of defendant also to perform her part of contract, but since there is no dispute with regard to receipt of advance sale consideration of Rs.8,00,000/ by the 1st defendant and since she did not even come into the witness box to speak about the truth, the plaintiff is entitled for refund of the advance amount paid to the first defendant for purchase of the suit schedule property. Even though she is not entitled for the relief of specific performance of the agreement of sale, the plaintiff is entitled for the refund of the advance sale consideration paid, as an alternative relief. Hence, this issue and the other issues are answered accordingly.
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18)Issue No.4:
In the result, the suit is decreed with costs with a direction to the first defendant to refund the advance sale consideration of Rs.8,00,000/ (Rupees Eight lakhs only), received from the plaintiff along with interest @ 12% p.a., from the date of filing the suit till the date of payment within
TWO months from the date of this order.
Dictated to the Stenographer, transcribed by her, corrected and
pronounced by me on this the .
Sd/ G. Rajani,
XI ADDL. DISTRICT JUDGE, GUDIVADA
FAC/XV ADDL. DISTRICT JUDGE, NUZVID.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFFFOR DEFENDANTS
P.W.1: Parvathaneni Prameela RaniD.W.1: Alavala Kesava Reddy
P.W.2: Nalluri Srinivasa Rao D.W.2: Desireddy Rama Devi
Documents marked on behalf of plaintiff:
Ex.A.1 is the original agreement of sale
Ex.A.2 is the office copy of legal notice
Ex.A.3 is the original postal receipt
Ex.A.4 is the original postal acknowledgment
Ex.A.5 is the original reply notice
Documents marked on behalf of Defendants
Ex.B.1: Attested copy of property disclosure statement dated 31.3.2009 of
Sri D.Upendra Reddy, Inspector of Police (TrafficI) Hyderabad.
Sd/ G. Rajani,
XI ADDL. DISTRICT JUDGE, GUDIVADA,
FAC/XV ADDL. DISTRICT JUDGE, NUZVID.
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