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O.S.No.387/2017, dated 10.02.2025
IV A.C.J Court (S.D), Guntur.
[ [
IN THE COURT OF THE IV ADDITIONAL CIVIL JUDGE (SENIOR IN THE COURT OF
DIVISION) COURT, GUNTUR
Present: Sri K.Hari Babu, IV Additional Civil Judge (Senior Division). IV Additional Civil Judge (Senior Division).
Monday, this the 10 th day of February, 2025
O.S.No.387/2017
BETWEEN
Shaik Feroz, S/o.Davud, Muslim, aged about 43 years, Business, R/o.Door No.15-10-48, 2nd lane, Vinobha Nagar, Old Guntur, Guntur. … Plaintiff AND
1. Puli Srinivasa Rao (Died).
2. Puli Sujatha, W/o.Srinivasa Rao late, Hindu, aged about 43 years.
3. Puli Gopikrishna, S/o.Srinivasa Rao late, Hindu, aged about 25 years.
4. Puli Venkatesh, S/o.Srinivasa Rao late, Hindu, aged about 20 years. (Defendants 2 to 4 are R/o.Door No.25-14-51, 9th line, Srinivasa Rao Thtoa, near Tirupatamma Temple, Guntur). (Defendants 2 to 4 were added as per order on I.A.No.268/2022, dated 20.12.2022). … Defendants.
This suit came up on 20.01.2025 before me for final hearing in the presence of Sarvasri G.Gnaneswar and K.Syamala, Advocates for the Plaintiff and the 1st Defendant (died), and Sri L.Subbaiah, Advocate for the 2nd to 4th Defendants, and the matter having stood over for consideration till this day, this Court delivered the following.
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O.S.No.387/2017, dated 10.02.2025
IV A.C.J Court (S.D), Guntur.
:: J U D G M E N T ::
01. Initially, the plaintiff filed the suit against the 1 Initially, the plaintiff filed the suit against the 1stst defendant for defendant for 01.
recovery of Rs.6,84,800/- (Rupees Six Lakhs, Eighty Four Thousand andrecovery of Rs.6,84,800/- (Rupees Six Lakhs, Eighty Four Thousand and
Eight Hundred Only) with subsequent interest @ 24% per annum fromEight Hundred Only) with subsequent interest @ 24% per annum from the date of filing of the suit till the date of realization on Rs.4,00,000/-the date of filing of the suit till the date of realization on Rs.4,00,000/- (Rupees Four Lakhs Only) and for costs. Subsequently, as per the orders(Rupees Four Lakhs Only) and for costs. Subsequently, as per the orders of this Court in I.A.No.268/2022, dated 20.12.2022, 2ndof this Court in I.A.No.268/2022, dated 20.12.2022, 2nd to 4 to 4thth defendants defendants were added as the legal representatives of the 1stwere added as the legal representatives of the 1st defendant. defendant.
02. The necessary pleadings of both parties to the suit are narrated, The necessary pleadings of both parties to the suit are narrated, 02. succinctly, as follows:succinctly, as follows:
For Plaintiff For Plaintiff
a) a) 1 1stst defendant is the absolute owner of the suit schedule property. defendant is the absolute owner of the suit schedule property.
When the 1stWhen the 1st defendant offered to sell the suit schedule property for the defendant offered to sell the suit schedule property for the purpose of his family necessities, the plaintiff expressed his interest topurpose of his family necessities, the plaintiff expressed his interest to purchase the same. 1stpurchase the same. 1st defendant agreed to sell the suit schedule defendant agreed to sell the suit schedule property to the plaintiff on bill contract of Rs.18,00,000/- (Rupeesproperty to the plaintiff on bill contract of Rs.18,00,000/- (Rupees
Eighteen Lakhs Only) and the plaintiff agreed to purchase the same forEighteen Lakhs Only) and the plaintiff agreed to purchase the same for the said amount. On 27.08.2014, the 1stthe said amount. On 27.08.2014, the 1st defendant executed an defendant executed an agreement of sale in favour of the plaintiff. The plaintiff paid an amount ofagreement of sale in favour of the plaintiff. The plaintiff paid an amount of
Rs.4,00,000/- (Rupees Four Lakhs Only) to the 1stRs.4,00,000/- (Rupees Four Lakhs Only) to the 1st defendant towards defendant towards earnest money. As per the recitals of the agreement of sale, the plaintiffearnest money. As per the recitals of the agreement of sale, the plaintiff has to pay the balance sale consideration of Rs.14,00,000/- (Rupeeshas to pay the balance sale consideration of Rs.14,00,000/- (Rupees
Fourteen Lakhs only) within two months from the date of agreement ofFourteen Lakhs only) within two months from the date of agreement of sale and the 1stsale and the 1st defendant has to execute regular registered sale deed in defendant has to execute regular registered sale deed in favour of the plaintiff. The 1stfavour of the plaintiff. The 1st defendant has to measure the suit schedule defendant has to measure the suit schedule property and has to show the boundaries of the suit schedule propertyproperty and has to show the boundaries of the suit schedule property and has to secure the relevant documents of the suit schedule property,and has to secure the relevant documents of the suit schedule property, 3
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like Encumbrance Certificate, etc., with his own expenses and hand overlike Encumbrance Certificate, etc., with his own expenses and hand over the same to the plaintiff at the time of registration of the sale deed. Thethe same to the plaintiff at the time of registration of the sale deed. The plaintiff is always ready and willing to perform his part of the contract asplaintiff is always ready and willing to perform his part of the contract as per the terms of the agreement of sale. After the agreement of sale, theper the terms of the agreement of sale. After the agreement of sale, the plaintiff expressed his readiness and willingness to pay the balance saleplaintiff expressed his readiness and willingness to pay the balance sale consideration. But, the 1stconsideration. But, the 1st defendant did not receive the same on one defendant did not receive the same on one pretext or the other. On several occasions, the plaintiff demanded the 1stpretext or the other. On several occasions, the plaintiff demanded the 1st defendant to execute a regular registered sale deed after receiving thedefendant to execute a regular registered sale deed after receiving the balance sale consideration as per the terms of the agreement of sale.balance sale consideration as per the terms of the agreement of sale.
But, the 1stBut, the 1st defendant used to avoid receiving of the balance sale defendant used to avoid receiving of the balance sale consideration and execution of the regular registered sale deed in favourconsideration and execution of the regular registered sale deed in favour of the plaintiff as per the terms of the agreement of sale. of the plaintiff as per the terms of the agreement of sale.
b) b) Subsequently, the plaintiff approached the registration department Subsequently, the plaintiff approached the registration department authorities as well as the revenue department authorities and came toauthorities as well as the revenue department authorities and came to know that the suit schedule property is in red marked portion of the officialknow that the suit schedule property is in red marked portion of the official records and the officials concerned will not register the land. Then, therecords and the officials concerned will not register the land. Then, the plaintiff on several occasions requested the 1stplaintiff on several occasions requested the 1st defendant to show the defendant to show the original sale deed and encumbrance certificate of the suit scheduleoriginal sale deed and encumbrance certificate of the suit schedule property and to get it measured. Till date, the 1stproperty and to get it measured. Till date, the 1st defendant did not show defendant did not show the original sale deed and link documents of the suit schedule property.the original sale deed and link documents of the suit schedule property.
Further, the 1stFurther, the 1st defendant did not apply for encumbrance certificate of the defendant did not apply for encumbrance certificate of the suit schedule property. Further, the 1stsuit schedule property. Further, the 1st defendant did not get measure the defendant did not get measure the suit schedule property. On several occasions, the plaintiff requested thesuit schedule property. On several occasions, the plaintiff requested the 11stst defendant to cancel agreement of sale and return the earnest money. defendant to cancel agreement of sale and return the earnest money.
But, the 1stBut, the 1st defendant has been postponing the same without returning defendant has been postponing the same without returning the earnest money to the plaintiff. 1stthe earnest money to the plaintiff. 1st defendant caused wrongful loss to defendant caused wrongful loss to the plaintiff. 1stthe plaintiff. 1st defendant got issued a legal notice, dated 09.05.2016. defendant got issued a legal notice, dated 09.05.2016.
Plaintiff received the said notice and gave a reply notice, datedPlaintiff received the said notice and gave a reply notice, dated 4
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06.06.2016. On 14.07.2017, the plaintiff got issued a legal notice to the 1st06.06.2016. On 14.07.2017, the plaintiff got issued a legal notice to the 1st defendant to return the earnest money along with interest. 1stdefendant to return the earnest money along with interest. 1st defendant defendant got returned the notice. Hence, the plaintiff is constrained to file the suitgot returned the notice. Hence, the plaintiff is constrained to file the suit seeking to recover the earnest money paid by him to the 1stseeking to recover the earnest money paid by him to the 1st defendant defendant along with interest. along with interest.
c) c) During the pendency of the suit, 1 During the pendency of the suit, 1stst defendant died on 04.06.2021 defendant died on 04.06.2021 leaving behind the 2ndleaving behind the 2nd to 4 to 4thth defendants as his legal heirs. defendants as his legal heirs.
For defendant For defendant
a) a) 11stst defendant purchased the suit schedule property from Gude defendant purchased the suit schedule property from Gude
Koteswaramma. After negotiations, the plaintiff agreed to purchase theKoteswaramma. After negotiations, the plaintiff agreed to purchase the suit schedule property from the 1stsuit schedule property from the 1st defendant on bill contract of defendant on bill contract of
Rs.18,00,000/-. The plaintiff verified all the documents relating to the suitRs.18,00,000/-. The plaintiff verified all the documents relating to the suit schedule property. 1stschedule property. 1st defendant had executed an agreement of sale, defendant had executed an agreement of sale,
dated 27.08.2014 in favour of the plaintiff. 1st dated 27.08.2014 in favour of the plaintiff. 1st defendant received andefendant received an
amount of Rs.4,00,000/- from the plaintiff as per the terms of theamount of Rs.4,00,000/- from the plaintiff as per the terms of the agreement of sale. The plaintiff agreed to pay the balance saleagreement of sale. The plaintiff agreed to pay the balance sale consideration of Rs.14,00,000/- within two months from the date ofconsideration of Rs.14,00,000/- within two months from the date of agreement of sale. agreement of sale.
b) b) 11stst defendant approached the plaintiff and requested him to pay defendant approached the plaintiff and requested him to pay the balance sale consideration and confirm the regular registered salethe balance sale consideration and confirm the regular registered sale deed in favour of the plaintiff. But, the plaintiff used to postpone the samedeed in favour of the plaintiff. But, the plaintiff used to postpone the same on one pretext or the other. 1ston one pretext or the other. 1st defendant got issued a legal notice, dated defendant got issued a legal notice, dated 09.05.2016 to the plaintiff. Plaintiff gave reply notice, dated 06.06.201609.05.2016 to the plaintiff. Plaintiff gave reply notice, dated 06.06.2016 with false allegations. The plaintiff did not perform his part of the contract.with false allegations. The plaintiff did not perform his part of the contract.
The plaintiff created a story in order to come out from the recitals of theThe plaintiff created a story in order to come out from the recitals of the agreement of sale. 1stagreement of sale. 1st defendant had obtained encumbrance certificate defendant had obtained encumbrance certificate from the registration office. 1stfrom the registration office. 1st defendant has perfect title over the suit defendant has perfect title over the suit 5
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schedule property. In order to escape from paying the balance saleschedule property. In order to escape from paying the balance sale consideration, the plaintiff made false propaganda. The plaintiff is notconsideration, the plaintiff made false propaganda. The plaintiff is not ready and willing to perform his part of the contract. The plaintiff did notready and willing to perform his part of the contract. The plaintiff did not file any document to show that the suit schedule property is in red markedfile any document to show that the suit schedule property is in red marked portion of the records. Plaintiff has no right to demand for the return of theportion of the records. Plaintiff has no right to demand for the return of the earnest money paid by him. Plaintiff filed this suit only to evade theearnest money paid by him. Plaintiff filed this suit only to evade the payment of balance sale consideration. Hence, the suit is liable to bepayment of balance sale consideration. Hence, the suit is liable to be dismissed. dismissed.
03. Basing on the respective pleadings, the following issues have been Basing on the respective pleadings, the following issues have been 03. settled for trial:settled for trial:
1. Whether the plaintiff was not ready and willing to perform his part of contract as contended by the defendants?
2. Whether the plaintiff is entitled for the suit claim as prayed for?
3. To what relief?
04. During the course of trial, the plaintiff examined PW.s 1 and 2 andDuring the course of trial, the plaintiff examined PW.s 1 and 2 and 04. exhibited Exs.A1 to A5. Whereas, the defendants examined DW.1 andexhibited Exs.A1 to A5. Whereas, the defendants examined DW.1 and exhibited Exs.B1 to B4. exhibited Exs.B1 to B4.
05. Heard the learned counsel for the plaintiff and the learned counsel Heard the learned counsel for the plaintiff and the learned counsel 05. for the defendants. Both the counsels submitted their arguments in linefor the defendants. Both the counsels submitted their arguments in line with their respective pleadings.with their respective pleadings.
Issue No.1 Issue No.1
06. The undisputed facts of record are that the 1 The undisputed facts of record are that the 1stst defendant is the defendant is the 06. absolute owner of the suit schedule property and that the 1stabsolute owner of the suit schedule property and that the 1st defendant defendant has executed Ex.A1 agreement of sale, dated 27.08.2014 in favour of thehas executed Ex.A1 agreement of sale, dated 27.08.2014 in favour of the plaintiff and that the plaintiff received an amount of Rs.4,00,000/- from theplaintiff and that the plaintiff received an amount of Rs.4,00,000/- from the 11stst defendant towards part of the sale consideration. defendant towards part of the sale consideration.
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IV A.C.J Court (S.D), Guntur.
07. The disputed facts are the readiness and willingness on the part of The disputed facts are the readiness and willingness on the part of 07. the plaintiff in performing his part of the contract.the plaintiff in performing his part of the contract.
08. According to the plaintiff, he has to pay the balance sale According to the plaintiff, he has to pay the balance sale 08. consideration of Rs.14,00,000/- within two months from the date of theconsideration of Rs.14,00,000/- within two months from the date of the execution of Ex.A1 agreement of sale, and the 1stexecution of Ex.A1 agreement of sale, and the 1st defendant has to defendant has to measure the suit schedule property and he has to show the boundaries ofmeasure the suit schedule property and he has to show the boundaries of the suit schedule property and he has to secure the relevant documentsthe suit schedule property and he has to secure the relevant documents of the suit schedule property like encumbrance certificate etc., with hisof the suit schedule property like encumbrance certificate etc., with his own expenses and hand over the same to him at the time of execution ofown expenses and hand over the same to him at the time of execution of the regular registered sale deed, and he is always ready and willing tothe regular registered sale deed, and he is always ready and willing to perform his part of the contract as per the terms and conditions of Ex.A1perform his part of the contract as per the terms and conditions of Ex.A1 agreement of sale, but the 1stagreement of sale, but the 1st defendant did not perform his part of the defendant did not perform his part of the contract by measuring the suit schedule property and by showing thecontract by measuring the suit schedule property and by showing the boundaries of the suit schedule property and by securing the relevantboundaries of the suit schedule property and by securing the relevant documents of the suit schedule property and he used to postponedocuments of the suit schedule property and he used to postpone receiving of the balance sale consideration and execution of the regularreceiving of the balance sale consideration and execution of the regular registered sale deed on some pretext or the other, and he approachedregistered sale deed on some pretext or the other, and he approached the registration authorities and came to know that the suit schedulethe registration authorities and came to know that the suit schedule property is in red marked portion of the official records, as such, the suitproperty is in red marked portion of the official records, as such, the suit schedule property cannot be registered, and therefore, on severalschedule property cannot be registered, and therefore, on several occasions, he requested the 1stoccasions, he requested the 1st defendant to cancel Ex.A1 agreement of defendant to cancel Ex.A1 agreement of sale and return the earnest money, but the 1stsale and return the earnest money, but the 1st defendant has been defendant has been postponing the same without returning the earnest money to him.postponing the same without returning the earnest money to him.
09. According to the defendants, on several occasions, the 1 According to the defendants, on several occasions, the 1stst defendant defendant 09. approached the plaintiff and requested him to pay the balance saleapproached the plaintiff and requested him to pay the balance sale consideration and execute a regular registered sale deed, but the plaintiffconsideration and execute a regular registered sale deed, but the plaintiff used to postpone the same on some pretext or the other, and then, the 1stused to postpone the same on some pretext or the other, and then, the 1st 7
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defendant got issued a legal notice, dated 09.05.2016 to the plaintiff, anddefendant got issued a legal notice, dated 09.05.2016 to the plaintiff, and the plaintiff got issued a reply notice, dated 06.06.2016 with falsethe plaintiff got issued a reply notice, dated 06.06.2016 with false allegations, and in order to come out from the recitals of the Ex.A1allegations, and in order to come out from the recitals of the Ex.A1 agreement of sale, the plaintiff created a false story and making falseagreement of sale, the plaintiff created a false story and making false propaganda, and the plaintiff is not always ready and willing to performpropaganda, and the plaintiff is not always ready and willing to perform his part of the contract, and the plaintiff is not entitled for the return of thehis part of the contract, and the plaintiff is not entitled for the return of the earnest money.earnest money.
10. In the above backdrop, the plaintiff got examined himself as PW.1 In the above backdrop, the plaintiff got examined himself as PW.1 10. and exhibited Exs.A1 to A5. Ex.A1 is the original agreement of sale,and exhibited Exs.A1 to A5. Ex.A1 is the original agreement of sale,
dated 27.08.2014. Ex.A2 is the office copy of the legal notice, dateddated 27.08.2014. Ex.A2 is the office copy of the legal notice, dated
09.05.2016 got issued by the 1st09.05.2016 got issued by the 1st defendant to the plaintiff. Ex.A3 is the defendant to the plaintiff. Ex.A3 is the office copy of the reply notice, dated 06.06.2016 got issued by the plaintiffoffice copy of the reply notice, dated 06.06.2016 got issued by the plaintiff to the 1stto the 1st defendant. Ex.A4 is the office copy of the legal notice, dated defendant. Ex.A4 is the office copy of the legal notice, dated 14.07.2017 got issued by the plaintiff to the 1st14.07.2017 got issued by the plaintiff to the 1st defendant. Ex.A5 is the defendant. Ex.A5 is the return registered cover, dated 15.07.2017. In support of his case, thereturn registered cover, dated 15.07.2017. In support of his case, the plaintiff got examined the scribe of the Ex.A1 agreement of sale as PW.2.plaintiff got examined the scribe of the Ex.A1 agreement of sale as PW.2.
In order to establish their contentions, the 2ndIn order to establish their contentions, the 2nd defendant got examined defendant got examined herself as DW.1 and exhibited Exs.B1 to B4. Ex.B1 is the copy of theherself as DW.1 and exhibited Exs.B1 to B4. Ex.B1 is the copy of the statement of the encumbrance of the suit schedule property. Ex.B2 is thestatement of the encumbrance of the suit schedule property. Ex.B2 is the certified copy of the agreement of sale cum G.P.A, dated 02.07.2014 videcertified copy of the agreement of sale cum G.P.A, dated 02.07.2014 vide document No.8283/2014. Ex.B3 is the certified copy of the registered saledocument No.8283/2014. Ex.B3 is the certified copy of the registered sale deed, dated 23.07.2012 vide document No.8534/2012. Ex.B4 is thedeed, dated 23.07.2012 vide document No.8534/2012. Ex.B4 is the registration extract of the registered sale deed, dated 30.04.1987 videregistration extract of the registered sale deed, dated 30.04.1987 vide document No.6575/1987.document No.6575/1987.
11. Even though, the 1Even though, the 1stst defendant has admitted the execution of Ex.A1 defendant has admitted the execution of Ex.A1 11. agreement of sale in favour of the plaintiff and also the payment ofagreement of sale in favour of the plaintiff and also the payment of advance sale consideration of Rs.4,00,000/- by the plaintiff, the plaintiffadvance sale consideration of Rs.4,00,000/- by the plaintiff, the plaintiff 8
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has to prove his readiness and willingness to perform his part of thehas to prove his readiness and willingness to perform his part of the contract.contract.
Under Section 16(c) of the amended Specific Relief Act, a party isUnder Section 16(c) of the amended Specific Relief Act, a party is
12. 12.
only required to prove its readiness and willingness to perform theonly required to prove its readiness and willingness to perform the contract. In the instant case, the amendment brought to the Specificcontract. In the instant case, the amendment brought to the Specific
Relief Act by Act 18 of 2018 would be inapplicable. The amendment isRelief Act by Act 18 of 2018 would be inapplicable. The amendment is prospective in nature and cannot be applied to those transactions whichprospective in nature and cannot be applied to those transactions which took place prior to amendment. Reliance is placed on the observations oftook place prior to amendment. Reliance is placed on the observations of the Hon’ble Apex Court the Hon’ble Apex Court reported in between reported in between Katta Sujatha Reddy Vs. Katta Sujatha Reddy Vs.
Siddamsetty Infra Projects (P) Limited & Others, (2023) 1 S.C.C 355. Siddamsetty Infra Projects (P) Limited & Others, (2023) 1 S.C.C 355.
13. The plaintiff must aver and prove that he has performed his part of The plaintiff must aver and prove that he has performed his part of 13. the contract and has always been ready and willing to perform the termsthe contract and has always been ready and willing to perform the terms of the contract which are to be performed by him. Section 16(c) of theof the contract which are to be performed by him. Section 16(c) of the
Specific Relief Act mandates ‘readiness and willingness’ of the plaintiff toSpecific Relief Act mandates ‘readiness and willingness’ of the plaintiff to be averred and proved. There is a distinction between the termsbe averred and proved. There is a distinction between the terms ‘readiness’ and ‘willingness’. ‘Readiness’ is the capacity of the plaintiff to‘readiness’ and ‘willingness’. ‘Readiness’ is the capacity of the plaintiff to perform the contract which includes his financial position to pay the saleperform the contract which includes his financial position to pay the sale consideration. ‘Willingness’ is the conduct of the party. Reliance is placedconsideration. ‘Willingness’ is the conduct of the party. Reliance is placed on the observations of the Hon’ble Supreme Court on the observations of the Hon’ble Supreme Court in between in between Pydi Pydi
Ramana @ Ramulu Vs. Davarasety Manmadha Rao, Civil Appeal Ramana @ Ramulu Vs. Davarasety Manmadha Rao, Civil Appeal
No.434 of 2013, Dated 10.07.2024 No.434 of 2013, Dated 10.07.2024 . It would be apt and appropriate to refer the list of dates and eventsIt would be apt and appropriate to refer the list of dates and events 14 . 14 which are not in dispute. The execution of the Agreement to Sell is onwhich are not in dispute. The execution of the Agreement to Sell is on 27.08.2014. The last date to get the sale deed registered according to the27.08.2014. The last date to get the sale deed registered according to the agreement to sell is 26.10.2014 i.e., within two months from the date ofagreement to sell is 26.10.2014 i.e., within two months from the date of agreement to sell. The date of issuance of the legal notice by the 1stagreement to sell. The date of issuance of the legal notice by the 1st defendant is 09.05.2016 and the date of issuance of the reply notice bydefendant is 09.05.2016 and the date of issuance of the reply notice by 9
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the plaintiff is 06.06.2016 and the date of issuance of the legal notice bythe plaintiff is 06.06.2016 and the date of issuance of the legal notice by the plaintiff is 14.07.2017 and the date of filing of the suit is 10.10.2017.the plaintiff is 14.07.2017 and the date of filing of the suit is 10.10.2017.
. As regards ‘readiness’ on the part of the plaintiff to perform his partAs regards ‘readiness’ on the part of the plaintiff to perform his part 15 . 15 of the contract, the capacity of the plaintiff warranting the performanceof the contract, the capacity of the plaintiff warranting the performance has to be looked into. As per Ex.A1 agreement of sale, out of the totalhas to be looked into. As per Ex.A1 agreement of sale, out of the total sale consideration of Rs.18,00,000/-, the plaintiff paid an amount ofsale consideration of Rs.18,00,000/-, the plaintiff paid an amount of
Rs.4,00,000/- to the 1stRs.4,00,000/- to the 1st defendant. There is no averment in Ex.A3 reply defendant. There is no averment in Ex.A3 reply notice about the financial capacity of the plaintiff to pay the balance salenotice about the financial capacity of the plaintiff to pay the balance sale consideration and also that the plaintiff is in possession of the balanceconsideration and also that the plaintiff is in possession of the balance sale consideration and he is ready to perform his part of the contract. Nosale consideration and he is ready to perform his part of the contract. No evidence was also adduced as to the readiness of the plaintiff to performevidence was also adduced as to the readiness of the plaintiff to perform his part of the contract.his part of the contract.
16. As regards ‘willingness’ on the part of the plaintiff to perform his partAs regards ‘willingness’ on the part of the plaintiff to perform his part 16. of the contract, the conduct of the plaintiff warranting the performanceof the contract, the conduct of the plaintiff warranting the performance has to be looked into. In the case at hand, the following conduct of thehas to be looked into. In the case at hand, the following conduct of the plaintiff warrants consideration.Plaintiff got issued reply notice nearlyplaintiff warrants consideration.Plaintiff got issued reply notice nearly after eighteen months after the expiry of the last date to get the sale deedafter eighteen months after the expiry of the registered according to the agreement of sale.Plaintiff has not brought anything on record to prove that he contacted the 1st defendant after the expiry of the the last date as per agreement of sale and was interested in finalizing the deed. There was total inaction of the plaintiff from 26.10.2014 (expiry of last date) to 06.06.2016 (date of issuance of reply notice).
The plaintiff has to prove his continuous readiness and willingness. The plaintiff has to prove his continuous readiness and willingness.
17. 17.
Reliance is placed on the observations of the Hon’ble Supreme Court Reliance is placed on the observations of the Hon’ble Supreme Court inin between Vijay Kumar and Others Vs. Om Parkash, Civil Appealbetween Vijay Kumar and Others Vs. Om Parkash, Civil Appeal
No.10191 of 2018. In the light of the above observations, for theNo.10191 of 2018. In the light of the above observations, for the 10
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foregoing discussion, the Court is of the opinion that the plaintiff has notforegoing discussion, the Court is of the opinion that the plaintiff has not sufficiently explained and proved that he was always ready and willing tosufficiently explained and proved that he was always ready and willing to perform his part of the contract. Accordingly, issue is answered in favourperform his part of the contract. Accordingly, issue is answered in favour of the defendants and against the plaintiff.of the defendants and against the plaintiff.
Issue No.2 Issue No.2
18. Having held that the plaintiff was not always ready and willing to Having held that the plaintiff was not always ready and willing to 18. perform his part of the contract, the next question that comes up forperform his part of the contract, the next question that comes up for determination is whether the plaintiff is entitled for the return ofdetermination is whether the plaintiff is entitled for the return of
Rs.4,00,000/- paid to the 1stRs.4,00,000/- paid to the 1st defendant at the time of entering into Ex.A1 defendant at the time of entering into Ex.A1 agreement of sale or can the defendants be permitted to forfeit the saidagreement of sale or can the defendants be permitted to forfeit the said amount?amount?
19. Ex.A1 agreement of sale was executed on Ex.A1 agreement of sale was executed on 27.08.2014. As per the27.08.2014. As per the 19. terms of Ex.A1, the 1stterms of Ex.A1, the 1st defendant has to measure the suit schedule defendant has to measure the suit schedule property and he has to show the boundaries of the suit schedule propertyproperty and he has to show the boundaries of the suit schedule property to the plaintiff and he has to secure relevant documents liketo the plaintiff and he has to secure relevant documents like encumbrance certificate etc., with his own expenses. No suchencumbrance certificate etc., with his own expenses. No such measurement was carried out and no such boundaries were shown andmeasurement was carried out and no such boundaries were shown and no relevant documents were secured and the 1stno relevant documents were secured and the 1st defendant has not defendant has not raised his little finger in this regard from the expiry of the last date ofraised his little finger in this regard from the expiry of the last date of agreement to sell till he got issued legal notice to the plaintiff underagreement to sell till he got issued legal notice to the plaintiff under
Ex.A2. There was total inaction of the 1stEx.A2. There was total inaction of the 1st defendant from 26.10.2014 defendant from 26.10.2014 (expiry of last date) to 09.05.2016 (date of issuance of legal notice).(expiry of last date) to 09.05.2016 (date of issuance of legal notice).
20. Regarding forfeiture of the earnest money paid under an agreementRegarding forfeiture of the earnest money paid under an agreement 20. to sell, there were two divergent views taken by the Hon’ble Apex Court.to sell, there were two divergent views taken by the Hon’ble Apex Court.
One in the case of Fateh Chand Vs. Balkishan Das, 1964 (1) S.C.R 515One in the case of Fateh Chand Vs. Balkishan Das, 1964 (1) S.C.R 515 wherein it was held that once loss is not pleaded and proved to bewherein it was held that once loss is not pleaded and proved to be caused to the seller, then earnest money cannot be forfeited. Thiscaused to the seller, then earnest money cannot be forfeited. This 11
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judgment was later on followed and relied up in the case of Kailash Nathjudgment was later on followed and relied up in the case of Kailash Nath
Associates Vs. D.D.A, (2015) 4 S.C.C 136. Another one is in the case ofAssociates Vs. D.D.A, (2015) 4 S.C.C 136. Another one is in the case of
Satish Batra Vs. Sudhir Rawal, (2013) 1 S.C.C 345 wherein it was heldSatish Batra Vs. Sudhir Rawal, (2013) 1 S.C.C 345 wherein it was held that earnest money in an agreement to sell can always be forfeitedthat earnest money in an agreement to sell can always be forfeited without pleading and proving any requirement of the seller havingwithout pleading and proving any requirement of the seller having suffered any loss.suffered any loss.
It is pertinent to note that all the judgments of the Hon’ble Supreme It is pertinent to note that all the judgments of the Hon’ble Supreme
21. 21. Court which have been relied upon in Satish Batra’s Case (supra) Court which have been relied upon in Satish Batra’s Case (supra) areare of a Bench strength lesser than the Constitution Bench strength of theof a Bench strength lesser than the Constitution Bench strength of the
Hon’ble Supreme Court in Fateh Chand’s Case (supra) Hon’ble Supreme Court in Fateh Chand’s Case (supra) and the law isand the law is
well settled that it is the judgment of the larger Bench of the Hon’ble Apexwell settled that it is the judgment of the larger Bench of the Hon’ble Apex
Court which will prevail over the judgment of a Bench strength of lesserCourt which will prevail over the judgment of a Bench strength of lesser number of judges. Thus, the legal proposition that emerges out is that thenumber of judges. Thus, the legal proposition that emerges out is that the earnest money can be forfeited only where the loss is caused to theearnest money can be forfeited only where the loss is caused to the seller and for that it is necessary that the loss must be pleaded andseller and for that it is necessary that the loss must be pleaded and proved by the seller.proved by the seller.
22. Reverting to the facts of the case, it would be relevant to reproduce Reverting to the facts of the case, it would be relevant to reproduce 22. the relevant extract from Ex.A1 agreement of sale. The same states thatthe relevant extract from Ex.A1 agreement of sale. The same states that an advance payment of Rs.4,00,000/- was made by the plaintiff and dulyan advance payment of Rs.4,00,000/- was made by the plaintiff and duly received by the 1streceived by the 1st defendant on 27.08.2014 and the balance amount of defendant on 27.08.2014 and the balance amount of
Rs.14,00,000/- to be payable by the plaintiff to the 1stRs.14,00,000/- to be payable by the plaintiff to the 1st defendant within the defendant within the two months from the date of execution of Ex.A1 agreement of sale. Thus,two months from the date of execution of Ex.A1 agreement of sale. Thus, there is no forfeiture clause in Ex.A1 agreement of sale. The defendantsthere is no forfeiture clause in Ex.A1 agreement of sale. The defendants have neither pleaded nor proved any actual loss suffered by them for nonhave neither pleaded nor proved any actual loss suffered by them for non performance of the contract.performance of the contract.
23. Further, the question of forfeiture of amount paid, even otherwise, Further, the question of forfeiture of amount paid, even otherwise, 23. does not arise in as much as a reading of the Ex.A1 agreement of saledoes not arise in as much as a reading of the Ex.A1 agreement of sale 12
O.S.No.387/2017, dated 10.02.2025
IV A.C.J Court (S.D), Guntur.
makes it apparent that the amount paid by the plaintiff was in the naturemakes it apparent that the amount paid by the plaintiff was in the nature of advance payment and not earnest money. Advance payment, beingof advance payment and not earnest money. Advance payment, being part-consideration, otherwise also cannot be forfeited.part-consideration, otherwise also cannot be forfeited.
24. Hence, in view of the aforesaid discussion, the Court holds that the Hence, in view of the aforesaid discussion, the Court holds that the 24. plaintiff is entitled to the return of Rs.4,00,000/- paid to the 1stplaintiff is entitled to the return of Rs.4,00,000/- paid to the 1st defendant defendant at the time of entering into the Ex.A1 agreement of sale with interest asat the time of entering into the Ex.A1 agreement of sale with interest as per the terms of the Ex.A1 agreement of sale. Accordingly, issue isper the terms of the Ex.A1 agreement of sale. Accordingly, issue is answered in favour of the plaintiff and against the defendants.answered in favour of the plaintiff and against the defendants.
Issue No.3 Issue No.3
25. In view of the conclusion under issue No.2,In view of the conclusion under issue No.2,the suit deserves to bethe suit deserves to be 25. decreed with costs. Therefore, the issue is answered accordingly indecreed with costs. Therefore, the issue is answered accordingly in favour of the plaintiff and against the defendants.favour of the plaintiff and against the defendants.
26. IN THE RESULT, IN THE RESULT, the suit of the plaintiff is decreed in his favour andthe suit of the plaintiff is decreed in his favour and 26. against the defendants on the following terms:against the defendants on the following terms:
a) Plaintiff shall be entitled to recover the advance money of Plaintiff shall be entitled to recover the advance money of
a) Rs.4,00,000/- from the estate of the 1stRs.4,00,000/- from the estate of the 1st defendant which is now lying in defendant which is now lying in the hands of the 2ndthe hands of the 2nd to 4 to 4thth defendants; defendants;
b) Plaintiff shall be entitled to the interest at the rate of 24% per annum on Plaintiff shall be entitled to the interest at the rate of 24% per annum on
b) the advance money of Rs.4,00,000/- from the date of filing of the suit tillthe advance money of Rs.4,00,000/- from the date of filing of the suit till the date of realisation. the date of realisation.
c) Plaintiff shall be entitled to the costs as well. Plaintiff shall be entitled to the costs as well.
c)
Dictated to Stenographer Grade-III, corrected and pronounced by me in the open Dictated to Stenographer Grade-III, corrected and pronounced by me in the open
court, this the 10 th court, this the 10 th day of February, 2025. day of February, 2025.
Sd/- K.Hari Babu, Sd/- K.Hari Babu,
IV ADDITIONAL CIVIL JUDGE (SENIOR DIVISION), IV ADDITIONAL CIVIL JUDGE (SENIOR DIVISION),
GUNTUR GUNTUR
13
O.S.No.387/2017, dated 10.02.2025
IV A.C.J Court (S.D), Guntur.
Appendix of Evidence
Witnesses examined
For Plaintiff
PW.1/.. Shaik Feroz. PW.2/.. Rallabandi Rama Raju.
For Defendants
DW.1/.. Puli Sujatha.
Documents marked
For Plaintiff
Ex.A1/.. Original agreement of sale, dated 27.08.2014. Ex.A2/.. Office copy of legal notice issued by the defendant to PW.1,
dated 09.05.2016.
Ex.A3/.. Office copy of reply notice issued by PW.1 to 1st defendant along with postal receipt, dated 06.06.2016. Ex.A4/.. Office copy of legal notice issued by PW.1 to the 1st defendant,
dated 14.07.2017.
Ex.A5/.. Returned registered cover, dated 15.07.2017.
For Defendants
Ex.B1/.. Certified copy of statement of Encumbrance on property, dated 02.02.2023. Ex.B2/.. Certified copy of sale agreement cum G.P.A, dated 02.07.2014 vide document No.8283/2014. Ex.B3/.. Certified copy of sale deed, dated 23.07.2012 vide document No.8534/2012 in favour of Gudey Koteswaramma. Ex.B4/.. Registration extract of registered sale deed, dated 30.04.1987 vide document No.6575/1987.
Sd/- K.Hari Babu, Sd/- K.Hari Babu,
IV A.C.J (SD). IV A.C.J (SD).