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IN THE COURT OF THE XV ADDL.DISTRICT JUDGE; NUZVID.
PRESENT: SRI.S.VENKATESWARA PRASAD XV ADDITIONAL DISTRICT JUDGE: NUZVID
Monday, 24th day of December, 2018
O.S.NO.9 of 2013
Between:
Perla Naga Satya Venkateswara Rao, S/o Someswara Rao, Hindu, 55 years, Business, R/o Bank Street, Nuzvid town and Mandal, Krishna District
.. Plaintiff
And
1. Vanama Chandrasekhar, S/o Seetha Rama Rao, Hindu, 45 years, Business, R/oT.Chanubanda village, Chatrai Mandal,Krishna District.
2. Morampudi Prasad, S/o Venkateswara Rao, Hindu, 45 years, Business and Agriculturist, R/o T.Chanubanda village, Chatrai Mandal, Krishna District.
..DEFENDANTS.
This Suit coming on 19.12.2018 before me for hearing in the presence of Sri G.Rambabu, Sri P.Karunakar, K.Jaya Prabha, Advocates for Plaintiff and of Sri Y.S.Dorai, Advocate, for 1st defendant, Sri Bogolu Chandrasekhara Rao, Advocate, for 2nd defendant, and the same is having stood over to this day for consideration and this court upon perusing the plaint, written statement and other material, upon hearing and consideration, delivered the following:
J U D G M E N T
1.This Suit is filed by the plaintiff for recovery of
Rs.15,73,333/- together with subsequent interest and costs of suit allegedly due from 2nd defendant based on the suit sale agreement between plaintiff and 2nd defendant. The earnest money is said to have been given by the plaintiff under the suit sale agreement, which is not enforced.
2.The brief averments of the Plaint, are as follows:
1st defendant is a distant relative of the plaintiff. 1st defendant informed that 2nd defendant purchased an extent of Ac 12.52 cents of mango garden covered by R.S.No.682/AA and 683/EE of Ammapalem village (suit schedule property ) from one Sanka 2
Ravikumar, Sanka Suresh Babu, Sanka Papayamma, Sanka Satyavathi of Jangareddygudem under an agreement of sale which the 2nd defendant has been proposing for sale. On 3.3.2007 in the presence of 1st defendant, by giving an advance amount of Rs.5,00,000/- to the 2nd defendant, the plaintiff entered into suit sale agreement with 2nd defendant dated 3.3.2007 in respect of suit schedule property with an undertaking to pay Rs.3,00,000/- by 10.3.2007 and with a condition to pay the balance sale consideration on or before 10.5.2007. 1st defendant undertook to get a registered sale deed executed by the original owner. The sale agreement was scribed by 1st defendant and attested by one Ch. Satyanarayana Reddy and Y.S.M. Gupta. As per the agreement plaintiff is also entitled to appropriate mango usufruct of the year 2007, but the defendants did not allow him to appropriate the same.
3.As per the terms of agreement, the plaintiff paid
Rs.3,00,000/- to 2nd defendant on 10.3.2007 in the presence of 1st defendant and above attesters and the same is endorsed on the sale agreement. On 21.5.2007 defendants 1 and 2 informed the plaintiff that 2nd defendant has to pay Rs.1,00,000/- to the original owners and asked him to pay that amount and on their request plaintiff paid
Rs.1,00,000/- to 2nd defendant which was endorsed by him. The said endorsement is scribed by 1st defendant. Thereafter, 1st defendant did not take any steps to get the regular sale deed from the original owners, but informed that they went to some pilgrimage, then the plaintiff asked the 1st defendant to get the due date mentioned in the agreement of sale is to be extended; on that 1st defendant took the agreement of sale dated 3.3.2007 from the plaintiff for the purpose of making necessary endorsements by 2nd defendant.
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4.Two months back (prior to filing suit) 1st defendant returned the document to the plaintiff and after returning the agreement of sale, plaintiff found an endorsement to the effect that agreement of sale will be cancelled by forfeiting the earnest money, if the plaintiff failed to pay balance sale consideration by10.6.2007. The said endorsement is in the hand writing of 1st defendant. Defendants 1 and 2 cheated the plaintiff by making such endorsement and there was no such agreement with plaintiff. Plaintiff came to know at the
Sub Registrar Office, Sathupalli on enquiry that the original owner executed a GPA-cum- Non-possessory sale agreement dated 24.8.2008 in respect of the same property in favour of one
Thadikonda Siva Rama Krishna Prasad, R/o Sobahanapuram village,
Agiripalli Mandal. 1st defendant being close relative of plaintiff along with 2nd defendant with dishonest intention cheated the plaintiff and made him to part with an amount of Rs.9,00,000/-. Plaintiff got issued a legal notice dated 20.3.2010 demanding to return that amount with interest @24% p.a., but defendants did not reply after receipt of notices. Therefore, the plaintiff is constrained to file the suit for recovery of money; the cause of action araises on 3.3.2007, 10.3.2007, 10.5.2007 and on 21.5.2007 (when defendants approached plaintiff to pay Rs.1,00,000/-) and also when they made the said endorsement regarding forfeiture of earnest money.
5.1st defendant filed written statement denying the material allegations of the plaint. The admitted facts are 1st defendant is the relative of plaintiff, that there was an agreement of sale with 2nd defendant which was scribed by him and attested by one Ch.
Satyanarayana Reddy and Y.S.M.Gupta, that amount of Rs.3,00,000/- was paid on 10.3.2007. The amount of Rs.5,00,000/- received on the date of agreement is also admitted. The other allegations are denied.
4 1st defendant never agreed to get the schedule land measured that they never demanded to pay Rs.1,00,000/- on 21.5.2007, that he is not aware of such payment. He denied that he made part payment endorsement of Rs.1,00,000/- on 21.5.2007. He never taken the original agreement of sale dated 3.3.2007 and incorporated the forfeiture clause. 1st defendant is not a necessary and proper party.
The suit is barred by limitation. The plaintiff is entitled for refund of money only when he pleads the alternate relief since the suit is based on specific performance of agreement of sale. The valuation in the suit is excessive. The computation of interest claimed is shown as 12% p.a., but the final figures claimed is not on par with the said interest claimed and that the suit claim is excessive and wrong. The plaintiff is well aware that 2nd defendant who entered into sale agreement is not the real owner and the real owners are Sanka Ravi
Kumar and others. 2nd defendant is not even in possession of the property. The plaintiff having satisfied with all such details within his knowledge, entered into the sale agreement with 2nd defendant and there was no any kind of inducement or misrepresentation either from 1st defendant or 2nd defendant.
6.2nd defendant filed separate written statement denying all the material allegations of the plaint. It is averred in his statement that he entered into a contract with the original owners Sanka Ravi
Kumar and others to purchase the suit schedule property @
Rs.1,95,000/- per acre, totalling to Rs.24,42,375/- by paying advance of Rs.4,00,000/-. It was agreed that 2nd defendant has to pay the balance sale consideration to the original owners by 20.5.2007 and obtain registered sale deed. While the matter stood thus, plaintiff approached 2nd defendant along with 1st defendant to purchase the suit schedule property which is an extent of Ac 12.52 cents @ 5
Rs.2,46,000/- per acre totalling to Rs.30,81,150/-. 2nd defendant clearly explained to the plaintiff that he obtained only sale agreement from the original owners and there was no registered sale deed in his favour and he has to obtain sale deed by 20.5.2007 by paying the balance sale consideration and also shown the sale agreement dated 20.2.2007 and photostat copies of the title deeds. The plaintiff being satisfied with the above documents informed that he is interested to purchase the said land and requested 2nd defendant to sell the same promising he would obtain the registered sale deed by the original owners by10.5.2007. Thereupon, 2nd defendant having received advance of Rs.5,00,000/- from the plaintiff executed an agreement of sale dated 3.3.2007 clearly reciting there in about the sale agreement
dated 20.2.2007 and also furnished photocopy of the sale agreement
of that date and title deeds. As per the recitals of the sale agreement
dated 3.3.2007 plaintiff has to pay Rs.3,00,000/- on 10.3.2007; and
accordingly plaintiff paid Rs.3,00,000/- to the 2nd defendant which was endorsed by 2nd defendant on the reverse of the sale agreement
dated 3.3.2007. As per the recitals of the sale agreement dated
3.3.2007, the plaintiff has to pay the balance sale consideration
Rs.22,81,150/- and has to obtain the registered sale deed by 10.5.2007, but he failed to perform his part of contract and kept quite till 21.5.2007 though the 2nd defendant and the original owners were ready and willing to perform their part of contract. The plaintiff did not come forward to pay the balance sale consideration and get the regular registered sale deed in his favour within the stipulated period.
On 21.5.2007 plaintiff approached the defendants and informed that he will pay only Rs.1,00,000/- and requested time till 10.6.2007 to pay the balance sale consideration and obtain registered sale deed. 2nd defendant being vexed with attitude of plaintiff agreed to receive 6 amount of Rs.1,00,000/- on condition that if plaintiff failed to pay the balance sale consideration before 10.6.2007, the advance amount of
Rs.9,00,000/- paid by plaintiff under sale agreement dated3.3.2007 will be forfeited and sale agreement stands cancelled, for which, plaintiff agreed and accordingly paid Rs.1,00,000/-. 2nd defendant endorsed the same on the reverse of sale agreement about receipt of
Rs.1,00,000/- and also endorsed about the forfeiture of advance amount and cancellation of sale agreement dated 3.3.2007.
7.On the above pleadings, the following issues are framed:
1) Whether the plaintiff is entitled for direction to the 2 nd defendant to pay Rs.15,73,333/- with subsequent interest in view of cancellation of agreement of sale?
2) Whether there is no cause of action to file the suit?
3) To what relief?
8.In support of his case, plaintiff filed his chief-affidavit and was cross examined by defendants. He marked Exs.A1 to A10 through his evidence. On behalf of defendants, D.Ws.1 to 5 are examined and
Exs.B1 to B8 are marked. The suit sale agreement was sent to Expert with respect to the dispute of the endorsement Ex.A4 and the Expert is examined by the Commissioner. Ex.C1 is the Commissioner report with opinion.
9.The documents marked on behalf of plaintiff are Ex.A1 is the suit sale agreement dated 3.3.2007; Exs.A2 to A4 are the endorsements dated 10.3.2007; 21.5.2007 and 10.6.2007 respectively. Ex.A5 is the certified copy of GPA-cum- Non-possessory sale agreement dated 24.8.2008 said to have been executed by the original owners in favour of 3rd parties in respect of the suit schedule property. The office copy of legal notice, postal receipts and postal acknowledgments by defendants 1 and 2 are marked as Exs.A6 to
A10.
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10.Exs.B1 to B6 are 1-B Namuna ROR obtained from Mee- seva in respect of survery numbers covered under the schedule property marked through defendants. Exs.B7 and B8 also are the certified copies of revenue records obtained from Mee-seva.
11.1st defendant filed his chief-affidavit as D.W.1, 2nd defendant is examined as D.W.2. D.W.3 is a 3rd party who stated in his evidence that Exs.A3 and A4 endorsements were scribed by him on the instructions of plaintiff. D.W.4 who is said to be the original owner of properties was summoned on the ground that he was allegedly won over by the plaintiff after he (plaintiff ) was partly examined in chief.
12.Heard arguments of counsel for Plaintiff and Defendants also perused record.
ISSUE Nos.1 and 2:
13.The learned counsel for plaintiff while reiterating the plaint and evidence and referring to the documents marked on behalf of plaintiff submits that the defendants 1 and 2 playing fraud on the part of plaintiff made him to believe that the property would be registered in his favour from the original owners and received advance sale considerations. As the 2nd defendant who is introduced through 1st defendant was already possessing sale agreement in his favour in respect of the schedule property from the real owners, the plaintiff entered into sale agreement with 2nd defendant and paid the advance sale considerations. 1st defendant is shown as proforma party without claiming any relief, as the transaction was done through him.
14.The learned counsel for the plaintiff further submits that there is no dispute with regard to the execution of the suit sale agreement and transaction between plaintiff and 2nd defendant with the mediation of 1st defendant, but the dispute is only with regard to 8 the Ex.A4 endorsement. The defendants admit the 3rd party payment endorsement of Rs.1,00,000/- covered under Ex.A3, but only dispute is Ex.A4 endorsement, but the evidence on record goes to show that 1st defendant had taken away the document from the plaintiff on the pretext of extending time for performance of contract, retained the same for some period and later returned and then only the plaintiff observed Ex.A4 endorsement which stipulates a condition that the agreement would stand cancelled, if the balance amount is not paid on or before 10.6.2007. In fact the plaintiff has no knowledge about the said endorsement and 2nd defendant in collusion with 1st defendant has created such endorsement to defeat the claim of plaintiff. As the 2nd defendant continued to make part payments from the date of suit sale agreement, the suit is within limitation for the purpose of claiming refund of earnest money.
15.The learned counsel for the plaintiff further submits that after receiving Rs.1,00,000/- part payment endorsement on 21.5.2007, which is not in dispute the defendants started non- cooperation and postponed the matter on some pretext or other.
Thereafter when the plaintiff enquired with Sub Registrar’s office, it is learnt that the original owners entered into another sale agreement with 3rd parties on 24.3.2008 and therefore, in view of the conduct of defendants who made the plaintiff to part with his money i.e.
Rs.9,00,000/-, the plaintiff has no option and is entitled to claim the refund of earnest money for which, he paid court fee and the suit is within the limitation. The learned counsel for the plaintiff further submits that there is neither pleading nor issues framed on the aspect of limitation and therefore, such issue cannot be raised by the defendants.
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16.The learned counsel for 1st defendant submits that there is no dispute that he is the scribe of Ex.A1 sale agreement, but he is no way connected with the transaction between plaintiff and 2nd defendant. All of them are relatives to each other and that he only introduced 2nd defendant to the plaintiff and made the plaintiff aware that 2nd defendant was intending to sell the property. 1st defendant knows about part payments of Rs.5,00,000/- on the date of sale agreement and Rs.3,00,000/-, but he is not aware about time stipulation endorsement Ex.A4. In the above endorsement as claimed by plaintiff and he has no knowledge of it. 1st defendant had never taken the original sale agreement dated 3.3.2007 from the plaintiff to get extension of time of contract and such allegation is false.
17.The learned counsel for 2nd defendant submits that 2nd defendant admits to the extent of entering into the suit sale agreement Ex.A1 with plaintiff and receiving consideration amount of
Rs.5,00,000/- and Rs.3,00,000/- on the date of sale agreement and on subsequent date dated 10.3.2007 and also admits about 3rd part payment of Rs.1,00,000/-, but his contention is that 2nd defendant endorsed the said payment as requested by plaintiff, the plaintiff was never cooperative for performing his part of contract by paying the balance sale consideration and 2nd defendant vexed with his attitude and ultimately on the request of plaintiff agreed to receive another part payment of Rs.1,00,000/-, but with a condition that if plaintiff failed to pay the balance sale consideration before 10.6.2007, the agreement stands cancelled. There is no question of taking away the original sale agreement from the possession of plaintiff and handing over after few months.
18.The learned counsel for the 2nd defendant submits no prudent man would keep quite if the document is kept with the 10 defendant for several months. As per the pleadings and evidence of plaintiff just before filing the suit he had taken back the sale agreement, which was said to have been given to 1st defendant for obtaining extension endorsement and only then he saw Ex.A4 endorsement. The said allegation is an invented one; if really, the plaintiff noted such endorsement made without his knowledge he would not have kept quite without issuing any legal notice or giving any police complaint. The relief claimed in the plaint is not explained since the rate of interest shown in the plaint was 12% p.a. which is contrary to the recitals of plaint and when such interest is calculated, the amount claimed under 3 different part payments do not match with the interest. The transaction is in the nature of sale agreement.
Therefore, the plaintiff cannot claim as of right automatically and file the suit as if it is a suit for recovery of money without seeking the main relief of specific performance and with alternative relief of recovery of money, if he chooses to. In such a case even if his request is considered, the limitation aspect has to be computed as if it is a sale agreement transaction, but not a promissory note transaction.
19.The learned counsel for 2nd defendant further submits that the plaintiff averred in the plaint and his evidence that 1st defendant had taken away the document from him on the pretext of getting extension of time and further Exs.A3 and A4 endorsements were also scribed by 1st defendant. But the evidence of D.W.3 shows that
Exs.A3 and A4 were scribed by him in the presence of plaintiff and on the instructions of plaintiff, but not in the absence of plaintiff as averred by the plaintiff. Therefore, the plaintiff is not fair enough in disclosing about the transaction in support of his claim and his entitlement to make such claim. To disprove the plaintiff’s case, the 2nd defendant got the sale agreement Ex.A1 examined by hand 11 writing expert with permission of court and the expert opined that the hand writings of Ex.A1 is not tallied with endorsements Exs.A3 and
A4; therefore, the contention of plaintiff that 1st defendant scribed
Exs.A3 and A4 falsified his plea that the document was taken by 1st defendant and the endorsement was made without his knowledge by 1st defendant.
20.The undisputed facts are as follows:
Plaintiff and 2nd defendant entered into suit sale agreement Ex.A1 in respect of suit schedule property which is an extent of Ac 12.52 cents of mango garden situated in R.S.Nos.682/AA and 683/EE of Ammapalem village. It is also not in dispute between plaintiff and 2nd defendant that an amount of Rs.5,00,000/- was paid by plaintiff; Rs.3,00,000/- on subsequent date 10.3.2007 and again
Rs.1,00,000/- on 21.3.2007 by the disputed endorsement Ex.A4, which, according to plaintiff, was not made with his consent and knowledge. According to him, there was no stipulated clause of cancellation of suit sale agreement if the balance is not paid on or
before 10.6.2007 as recited under Ex.A4. According to plaintiff it is a
collusive endorsement between defendants 1 and 2 as 1st defendant had taken away the said document from him on the pretext of getting extension of time.
21.Another important undisputed fact is that 2nd defendant since not the owner of the property and has no salable interest. The original owners are different persons from whom 2nd defendant has allegedly obtained a sale agreement in his favour, based on which he entered into another sale agreement Ex.A1 in favour of plaintiff without ownership rights. The said fact is within the knowledge of plaintiff as well as 2nd defendant. According to plaintiff the disputed
Ex.A4 endorsement was scribed by 1st defendant after taking away 12 the document from him whereas, 2nd defendant says that on the request of plaintiff himself, the said endorsement was made by D.W.3, but not by 1st defendant. D.W.3 supports his case stating that in the presence of plaintiff and 2nd defendant he endorsed the stipulated clause of payments of balance sale consideration by 10.6.2007, and with a condition that the agreement stands cancelled. The question of limitation need not be pleaded by either party, but it can be considered by court which is a legal aspect, as rightly contended by the counsel for 2nd defendant.
22.As rightly contended by the learned counsel for 2nd defendant, first of all, it is to be noted that the suit is based on sale agreement between plaintiff and 2nd defendant in respect of suit schedule property. Therefore, this is not a simple money suit for recovery of money, since the contractual obligation between parties is for sale of property. When a suit is filed for specific performance seeking enforcement of the contract, which is a discretionary relief.
The law says that plaintiff must not only ever but also to prove that he was always ready and willing to perform his part of contract and transaction is transparent. At this stage, the matter is to be further analyzed to the effect that 2nd defendant has no salable interest in the property, which fact is within the knowledge of plaintiff, even as per the recitals of Ex.A1 and also as per his pleadings and evidence.
Therefore, it has to be safely concluded that the plaintiff entered into sale agreement with 2nd defendant, who has no title. He did not even verify the document in favour of 2nd defendant which is said to be a ‘sale agreement’ with the real owners. No such document is placed or marked before the court or any other evidence is let in. Since the burden is on the plaintiff to aver and prove that the transaction is transparent, the conduct of the parties need to be analyzed i.e., 13 between plaintiff and defendants, the conduct of plaintiff would assume primary role since it is he who makes the claim.
23.The plaintiff entered into sale agreement not with the original owner but with 2nd defendant who has no title ignoring the fundamental principle that buyer must be beware and now makes hue and cry as if he was cheated by the defendants without getting sale deed executed by the real owners. There is no contractual obligation between plaintiff and the real owners and there is no record to show that plaintiff entered into such agreement with 2nd defendant by placing the entire transaction to the knowledge of real owners. The probabilities of the case would clearly disclose that plaintiff entered into sale transaction with 2nd defendant in respect of suit schedule property to which 2nd defendant is not the owner, but with a promise to get a regular sale deed from the real owners by paying balance sale consideration. Therefore, the real owners are not obliged to the plaintiff for enforcing the contract executed without their knowledge.
Money is transferred from plaintiff to 2nd defendant in respect of a transaction which is not transparent based on which no claim can be made. Though the plaintiff is able to prove based on his evidence and admissions of defendants 1 and 2 that certain part payments are made to him, whether he is really entitled to claim such amounts in respect of the schedule property over which, he has no right to deal with, is a matter in question.
24.Even if the plaintiff’s claim is accepted to be true for a moment, to make such claim in respect of enforcing sale agreements, it is the plaintiff who has to prove that he was always ready to perform his part of contract and ready with the balance sale consideration and then only can blame the defendants by seeking enforcement of contract or alternate relief of refund of earnest money.
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25.The conduct of the parties is to be further analyzed since this is a suit for specific performance. The plaintiff, defendants 1 and 2 are all relatives. The pleadings and evidence disclose that the 1st defendant only suggested for purchase of property by plaintiff from the real owners by executing sale agreement with 2nd defendant as 2nd defendant already entered into a sale agreement. Several admissions could be elicited from the cross examination of P.W.1 in favour of 2nd defendant. He admits that as per Ex.A1 recitals on or
before 10.5.2007, the registration has to be completed which is the
stipulated date. What legal steps he had taken during the said period and what type of readiness was expressed by him, is no where stated.
P.W.1 says that there was no legal notice got issued by him after the cut of date either in the year 2007, 2008or 2009 demanding for registration. In the pleadings he says that Ex.A4 endorsement was scribed by 1st defendant after taking away the document from him.
But coming to his evidence, he says that though 1st defendant has taken away the document from him he is not aware as to by whom
Ex.A4 endorsement was made with forfeiture clause signed by 2nd defendant. Even after noticing Ex.A4 containing forfeiture clause, he did not give any legal notice either to 1st defendant or 2nd defendant.
He says that the document was kept with 1st defendant for about 3 or 4 months. His evidence appears to be improbable as no prudent man would give away the document for months together to be kept in another’s possession especially with whom he had contractual obligation. No person would allow to make such endorsement in his absence in the document which was allegedly kept for months together in possession of another person. Even after returning the document, just before filing the suit he did not initiate any action.
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26.P.W.1 clearly admits that he has knowledge of the entire contents of Ex.A1 and there is a stipulation clause to pay the balance sale consideration on or before 21.5.2007. P.W.1 says that Ex.A3 endorsement was obtained at his residence by make part payment of
Rs.1,00,000/- on 21.5.2007. But he says that he does not remember who scribed Ex.A3 endorsement, even though it is scribed in his residence. According to 2nd defendant, Ex.A3 and A4 were endorsed on the same day in the house of P.W.1 by one Vissampalli Pullaiah (D.W.3), which contains the endorsement that the agreement stands cancelled if balance is not paid on or before 10.6.2007 and the amount will be forfeited. He admits that he has knowledge of entering into suit sale agreement and generally any sale agreement obtained in his favour, should be retained in his possession along with the connected documents. He admits that he did not make the balance sale consideration on or before the stipulated time as per Ex.A1, for which, he has not offered any explanation. He simply denies Ex.A4 endorsement.
27.When the witness is suggested that initially there was a stipulated clause to make final payment on or before 10.5.2007 and which is not paid, automatically it is deemed that the agreement stands cancelled if sale deed is not obtained within that stipulated time. The witness admits that such clause already incorporated on the date of sale agreement itself is sufficient to consider that the agreement stands cancelled. In such a case, leaving that particular clause, he only disputes Ex.A4 endorsement. He admits that he never gave any notice to 2nd defendant informing that he was ready to pay balance sale consideration and requiring him to register the sale deed by getting the property measured. He admits that he never informed the original owners of 2nd defendant about his readiness in paying the 16 balance sale consideration and alleged non-cooperation of 2nd defendant, there is no other proof to show his readiness and willingness to perform his part of contract.
28.Though the contention of plaintiff is that 2nd defendant promised to get regular sale deed from the real owners, no such acceptable evidence is filed before court. It is not clear and not known whether 2nd defendant obtained registered GPA -cum- Possessory sale agreement or obtained registered sale agreement from the real owners nor have a right to sell the property or entering into another sale agreement in favour of plaintiff. Except believing the words of defendant, plaintiff did not care about entitlement of 2nd defendant in selling the suit schedule property or power to execute sale agreement in respect of 3rd parties property. It is a clear case where plaintiff obtained sale agreement from 2nd defendant who has no salable interest and paid certain amount and now seeks advance of earnest money paid under a contractual obligation with a person who has no right to contract. As per the pleadings, evidence on both sides, it is clear that plaintiff entered into sale agreement with 2nd defendant who has no manner of right or title over the property.
29.The plaintiff had taken inconsistent pleas when compared to his pleadings and evidence. Initially, he pleaded that 1st defendant has scribed Exs.A3 and A4 by creating Ex.A4 endorsement that if the balance is not paid, the agreement stands cancelled and the advance amount is forfeited. Coming to his evidence he says he does not know who scribed Exs.A3 and A4 though Ex.A3 is scribed in his house. The evidence adduced by D.W.3 shows and supports the case of 2nd defendant that both Exs.A3 and A4 endorsements were made in the house of plaintiff and such endorsements were scribed by D.W.3 under the instructions and on dictation of plaintiff. This version 17 supports the case of 2nd defendant, that vexed with the attitude of plaintiff he had ultimately demanded the plaintiff to make such endorsement as plaintiff was not ready to pay the balance sale consideration and was extending time, and both endorsements were made in the house of plaintiff. Hence, it is clear that Exs.A3 and A4 were endorsed in the house of plaintiff, and plaintiff made such endorsements when he was asked to put a final date with a forfeiture clause as the real owners have been insisting to sell the property. It appears the real owners ultimately sold away the property to 3rd parties in the year 2008 by entering into registered GPA-cum- sale agreement and without raising any objections over such transactions or without issuing any legal notice or making any police complaints for the alleged acts of cheating and without informing or questioning the real owners, now the plaintiff filed the suit against 2nd defendant for recovery of money based on Ex.A1 sale agreement.
30.The plaintiff initially pleaded that Exs.A3 and A4 are scribed by 1st defendant who had played an active role. In order to disprove and in support of 2nd defendant’s case that Exs.A3 and A4 were scribed by D.W.3, 2nd defendant got the suit document Ex.A1 sent to Expert. The disputed endorsements/hand writings Exs.A3 and
A4, were compared with the admitted hand writings of Ex.A1 by 1st defendant. The hand writing expert opined that the person who wrote the contents of Ex.A1, did not write the hand writing of Exs.A3 and
A4. Hence, it is clear coupled with other evidence that 1st defendant did not scribe Exs.A3 and A4, but it is D.W.3 who scribed the same which goes to support the case of 2nd defendant. The other evidence of 2nd defendant also support their case that Exs.A3 and A4 were endorsed on the same day by the same person in the house of plaintiff and under the instructions of plaintiff with stipulated clause 18 and forfeiture clause. This piece of evidence placed by the defendants would falsify the case of plaintiff that Ex.A4 endorsement is not done in his presence. It is also highly improbable and not believable that the sale agreement was taken away by 1st defendant from his possession for months together and later returned with an endorsement of Ex.A4 without a forfeiture clause.
31.The plaintiff is not fair and transparent in making the claim in respect of alleged transaction which cannot be considered as a fair transaction for a genuine claim. He entered into a transaction with a party who has no salable interest only believing the version that such party had already obtained sale agreement which sale agreement is not filed before the court. He never issued any legal notice nor taken steps nor informed the real owners about suit transaction and such transactions which are done as per the whims and fancies of any individual cannot be made a legal basis for claiming any amounts.
32.In support of his contention, the learned counsel for plaintiff relies on a decision in “Tavvala Veerabhadra Rao v.
Bonam Venugopala Rao and others” (1997 (4) ALT 713), wherein the trial judge ordered refund of earnest amount which was challenged in first appeal wherein the finding was reversed, but in letters present appeal it was observed that the plaintiff was entitled for such relief. It was also observed that the seller is bound disclose all the defects in title. The above referred decision is not applicable to the facts and circumstances of the present case. Here is a case where, plaintiff without knowledge and consent of the original owners, entered into contract in respect of third parties property and there was exchange of sale considerations. The plaintiff has got knowledge that he has no right to enter into such transaction with a third party.
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The other citations referred by learned counsel for plaintiff in “Maula
Bux v. Union of India” (1970 AIR 1985) and “Shaik Buddem
sab and others v. Nagamma and another” (AIR 1977 A.P. 90)
over the same contention advanced has no application to the facts of the present case. It is not the case of the plaintiff herein that he has not made reasonable enquiries regarding title (and as such he cannot be deprived of damages as held in the above decision), but it is a case where the plaintiff with full knowledge entered into contract with 2nd defendant in respect of schedule property over which 2nd defendant has no rights. When such transaction itself is illegal, he is debarred from claiming damages.
33.The learned counsel for the 2nd defendant refers to a decision of the Hon’ble Supreme Court in “Satish Batra v. Sudhir
Rawal” (Civil Appeal No.7588/2012 dt.18.10.2012), wherein the
Hon’ble Supreme Court set aside the judgment of Hon’ble High Court
and upheld the finding of trail court that the seller is entitled to forfeit the earnest money where the sale of property falls by reason of fault of the purchaser.
34.The learned counsel for 2nd defendant also relies on another decision reported in “Challapalli Venkateswara Rao and
others v. Meka Gangadhara Rao” (2018 (1) ALD 158 (DB)
wherein it is held that merely accepting belated payment made by plaintiff (under Exs.A2 and A3 endorsements) defendants cannot be said to have enlarged time for completion of contract and therefore time was essence of the contract.
35.There are no deceitful means played either by 1st defendant or 2nd defendant ; plaintiff kept quite for more than one year and even after the document is returned after several months, the suit sale agreement is dated 3.3.2007 and therefore, the suit even 20 if filed for refund of earnest money is based on specific performance and the suit is filed beyond 3 years and therefore, the suit is also barred by time. I, therefore, hold that the plaintiff is not entitled for seeking direction to the 2nd defendant to pay Rs.15,73,333/- together with subsequent interest as he did not even stick on to the forfeiture clause Ex.A4 which is made in his presence and which is proved through evidence of defendants. There is no proper cause of action to file the suit. Issue Nos.1 and 2 are accordingly answered against the plaintiff and in favour of defendants.
ISSUE No.3:
36.In view of the findings answered in issue Nos.1 and 2 against the plaintiff, the suit is liable to be dismissed.
37.In the result, the suit is dismissed. No costs.
Dictated to Stenographer, Grade-I, transcribed by him,
corrected and pronounced by me in the open Court on this the 24th day of December, 2018.
XV ADDITIONAL DISTRICT JUDGE,
NUZVID.
APPENDIX OF EVIDENCE
WITNESS EXAMINED ON BEHALF OF
PLAINTIFFS: DEFENDANTS:
P.W.1P.N.Satya Venkateswara Rao D.W.1-Vanama Chandrasekhar. D.W.2: Morampudi Prasad D.W.3: Vissampalli Pullaiah D.W.4: Sanka Suresh (eschewed) D.W.5: Y. SuryaPrasad (Expert)
DOCUMENTS MARKED
ON BEHALF OF THE PLAINTIFF
Ex.A-13.3.2007Agreement of sale
Ex.A-210.3.2007Endorsement
Ex.A-321.5.2007Endorsement
Ex.A-410.6.2007Endorsement
Ex.A-524.8.2008Certified copy of GPA-cum- Non-Possessory agreement of sale Ex.A619.3.2010Office copy of legal notice
Ex.A729.3.2010Postal receipt 21
Ex.A829.3.2010Postal receipt
Ex.A9–Postal acknowledgment of 1st defendant
Ex.A10-Postal acknowledgment of 2nd defendant
DEFENDANT:
Ex.B112.1.20161-B Namuna (ROR in S.No.721 and 719 from Meeseva Ex.B212.1.20161-B Namuna (ROR in S.No.722 from Meeseva Ex.B312.1.20161-B Namuna (ROR in S.No.720 and 719,704 from Meeseva Ex.B412.1.20161-B Namuna (ROR in S.No.436 from Meeseva Ex.B519.1.20161 B Namuna (ROR) S.No.37-1, 36,33,29, 28, 26 from meeseva Ex.B619.1.20161 B Namuna (ROR) S.No.5,20, 27-2, 26 from meeseva Ex.B7CC of registered extract from mee seva Ex.B8–CC of registered extract from mee seva
XV ADDL. DISTRICT JUDGE,
NUZVID.
22
IN THE COURT OF THE XV ADDL.DISTRICT JUDGE; NUZVID.
PRESENT: SRI.S.VENKATESWARA PRASAD XV ADDITIONAL DISTRICT JUDGE: NUZVID
Monday, 24th day of December, 2018
O.S.NO.9 of 2013
Between:
Perla Naga Satya Venkateswara Rao, S/o Someswara Rao, Hindu, 55 years, Business, R/o Bank Street, Nuzvid town and Mandal, Krishna District
.. Plaintiff
And
1. Vanama Chandrasekhar, S/o Seetha Rama Rao, Hindu, 45 years, Business, R/oT.Chanubanda village, Chatrai Mandal,Krishna District.
2. Morampudi Prasad, S/o Venkateswara Rao, Hindu, 45 years, Business and Agriculturist, R/o T.Chanubanda village, Chatrai Mandal, Krishna District.
..DEFENDANTS.
1.This Suit is filed by the plaintiff for recovery of Rs.15,73,333/- together with subsequent interest and costs of suit allegedly due from 2ndde based on the suit sale agreement between plaintiff and 2nd defendant. The earnest money said to have been given to the plaintiff under the suit sale agreement, which is not enforced.
Plaint presented on : 29.4.2010
Value of the suit for the purpose of jurisdiction u/s. 50(1) of A.P.C.F. and S.V. Act is Rs.15,73,333/- on which a court fee of Rs.18,226/- is paid under section 20 (1) of A.P.C.F. and S.V. Act.
Cause of action for the suit arose on 3.3.2007 the defendants executed a sale agreement of sale in favour of plaintiff and received Rs.15,73,333/- on various transactions and failed to execute regular sale deed in favour of plaintiff and that on 19.3.2010 the plaintiff got issued notice to the defendants and the transaction took place at Sobhanapuram village and Chanubanda village, Krishna District which is within the jurisdiction of this Court.
This Suit coming before me for hearing in the presence of Sri G.Rambabu, Sri P.Karunakar, K.Jaya Prabha, Advocates for Plaintiff and of Sri Y.S.Dorai, Advocate, for 1st defendant, Sri Bogolu Chandrasekhara Rao, Advocate, for 2nd defendant, and the same is having stood over to this day for consideration and this court upon perusing the plaint, written statement and other material, upon hearing and consideration,this court doth order and decree:
1. That the suit be and the same is hereby dismissed; 23
2. That the plaintiff do bear his own costs of Rs.67,428/- and the 2nd defendant do bear his own costs of Rs.57,102/-.
GIVEN UNDER MY HAND AND THE SEAL OF THE COURT ON THIS
THE 24th day of December, 2018.
XV ADDL. DISTRICT JUDGE,
NUZVID.
MEMORANDUM OF COSTS
S.NDescription plaintiffs 2nd defendant O.
1.Stamp on vakalat 2.002.00
2.Stamp on plaint18,226.00--
3.Stamp on process 100.00--
4.Commissioner --5,000.00 fees
5.Expert fees--3,000.00
4.Advocate fee48,900.0048,900.00
5.Type charges100.00100.00
6.Writing charges100.00100.00
Total67,428.00 57,102.00
XV A.D.J. Nuzvid
NOTE:The exhibited documents and non-exhibited documents which are marked have to be taken back by the parties concerned within the stipulated time with an undertaking to produce the same as and when required by the Court.