Uppatholla Prasada Rao & Ors. v. Polamarasetty Srinivasa Rao

Judgment

This Appeal, under Section 96 of the Code of Civil Procedure [for short ‘the C.P.C.’], is filed by the Appellants/Defendants challenging the Decree and Judgment, dated 25.02.2009, in O.S.No.743 of 2007 passed by the learned IV Additional Senior Civil Judge, (FTC) at Visakhapatnam [for short ‘the trial Court’].

2. The appellants herein are the defendants and the respondent herein is the plaintiff in O.S.No.743 of 2007, on the file of the IV Additional Senior Civil Judge, (FTC) at Visakhapatnam.

Originally, the plaintiff in O.S.No.743 of 2007 filed the suit against the defendants, seeking for grant of specific performance by directing the defendants to execute a registered sale deed in favour of the plaintiff or to his nominee by receiving the balance consideration and to deliver the plaint schedule property, (b) in case the defendants fails to execute the sale deed the Court may execute a registered sale deed on behalf of the defendants at the expenses of the plaintiff, (c) in case the Court not agreed to grant the relief of specific performance the Court may be pleased to direct the defendants to repay Rs.1,00,000/- together with interest at the rate of 24% p.a. and (d) as the defendants did not perform their part of contract as such the plaintiff is entitled for damages and for costs of the suit. VGKR, J. AS_341_2009

4. Both parties in the appeal will be referred to as they were arrayed before the trial Court.

5. The case of the plaintiff as per the plaint averments in O.S.No.743 of 2007, in brief, is as follows: I. The plaintiff pleaded that the defendant Nos.1 and 2 are the absolute owners of the plaint schedule property and they constructed flats in the said site after getting approval from the Municipality. The plaintiff furthe pleaded that he intends to purchase the plaint schedule property and after negotiations, the price was fixed at Rupees Six Lakhs and the plaintiff paid an advance consideration of Rs.60,000/-. The plaintiff further pleaded that it was agreed by both the parties that the plaintiff should pay the balance sale consideration before 10th March, 2007 and the defendants should execute a regular sale deed in favour of the plaintiff. The plaintiff further pleaded that the defendants have executed an agreement of sale on 07.02.2007 in favour of the plaintiff and subsequently, on 12.02.2007, the plaintiff expressed his readiness and willingness to pay the balance sale consideration and to take the registered sale deed. The plaintiff further pleaded that at that stage, the defendants for the first time informed the plaintiff that there is a housing loan of Rs.3,50,000/- on the property and when the plaintiff insisted to show the loan papers and demanded to clear the loan and also offered that he will credit the balance consideration to the loan amount, the defendants for the reasons best known to them, did not disclose the VGKR, J. AS_341_2009 particulars and they requested time to clear off the loan and to register the sale deed. II. The plaintiff further pleaded that on 12.02.2007, he paid an amount of Rs.40,000/- and the defendants endorsed about the fact of loan and receipt of Rs.40,000/- on the reverse of agreement. The plaintiff further pleaded that subsequently, he demanded the defendants to receive the balance sale consideration, but the defendants are postponing the same on one pretext or the other. The plaintiff further pleaded that on

02.03.2007, he got issued a notice to the defendants demanding them to receive the balance sale consideration and register the sale deed by fixing the date of registration as 09.03.2007. The plaintiff further pleaded that the defendants got issued reply notice dated 07.04.2007, admitting the execution of agreement and pleaded some false, untenable allegations and that the plaintiff was constrained to file the suit.

6. The defendant No.1 filed the written statement and the same was adopted by defendant No.2 and the case of the defendants as per the written statement is as follows: I. The defendant No.1 pleaded that they admitted the execution of agreement on 07.02.2007 for an amount of Rupees Six Lakhs and the plaintiff is supposed to get the same registered, but the plaintiff failed to get the registered sale deed and that the plaintiff cannot get the right over the said document. The defendant No.1 further pleaded that after repeated requests by them to register the same, for the reasons best VGKR, J. AS_341_2009 known to the plaintiff, he postponed one pretext or the other and finally executed an unregistered agreement at the end of the defendants. The defendant No.1 further pleaded that he informed the plaintiff on

07.02.2007 itself regarding the bank loan and the plaintiff assured the defendants that he will clear the loan on or before 10.03.2007. The defendant No.1 further pleaded that the plaintiff hurry blurrily brought an agreement to the defendants to sign on the same even without an opportunity to the defendants to read the contents of the same. The defendant No.1 further pleaded that the plaintiff got published a public notice on 03.03.2007 without obtaining prior permission from the defendants and due to the said publication, the defendants lost their name and fame. II. The defendant No.1 further pleaded that the plaintiff is supposed to issue the notice dated 02.03.2007 after issuance of paper publication, but, the plaintiff got issued a legal notice on 02.03.2007 and got published the notice on 03.03.2007. The defendant No.1 further pleaded that the acts of the plaintiff are illegal and unauthorized and the notice got issued by the plaintiff was received by the defendants on

12.03.2007, but the defendants were ready and willing to execute the registered sale deed in favour of plaintiff on 10.03.2007 itself. The defendant No.1 further pleaded that he never assured the plaintiff that he is going to clear the bank loan on 10.03.2007 and further they voluntarily informed the plaintiff is a bank loan of VGKR, J. AS_341_2009 Rs.3,50,000/-, for which the plaintiff agreed to discharge the said loan directly to the bank by deducting the sale consideration and promised the defendants that he will clear the bank loan and he will get the sale deed duly obtained from the Bank authorities. The defendant No.1 further pleaded that on 25.03.2007, the plaintiff lodged a Police complaint against the defendants before the S.H.O., II Town (Law & Order) Police Station, Visakhapatnam, wherein the defendants and the plaintiff came to an understanding that the plaintiff agreed to receive the advance paid by him i.e. Rs.1,00,000/- within two months from

25.03.2007 and the defendants also agreed to sell the property to the third parties and that the plaintiff is not entitled to the relief of specific performance and requested for dismissal of the suit.

7. Based on the above pleadings, the trial Court framed the following issues: 1) Whether the plaintiff is entitled for specific performance of agreement of sale dated 7-2-2007 or not? 2) Whether the plaintiff is ready and willing to perform his part of contract or not? 3) Whether the plaintiff is entitled for the alternative relief of refund of advance amount of Rs.1,00,000/- as prayed for or not? 4) To what relief? VGKR, J. AS_341_2009

8. During the course of trial in the trial Court, on behalf of the plaintiff, P.Ws.1 and 2 were examined and Ex.A-1 to Ex.A-4 were marked. On behalf of the defendants, D.W.1 was examined and no document was marked.

9. After completion of the trial and on hearing the arguments of both sides, the trial Court decreed the suit in part with costs vide its judgment, dated

25.02.2009, against which the present appeal is preferred by appellants/defendants in the suit.

10. Learned counsel for the appellants would contend that the judgment and decree passed by the trial Court are illegal, contrary to law, against the weight of the evidence, and the probabilities of the case and the trial Court failed to observe that the plaintiff had not shown readiness and willingness to perform his part of the contract. He would further contend that the trial Court failed to observe that there was an understanding between the parties on

25.03.2007, before the II Town Police Station, Visakhapatnam, that the defendant agreed to return the advance amount to the plaintiff and that the same would reveal that the plaintiff was not ready to obtain a regular sale deed and that the plaintiff was seeking return of the advance amount only. The learned counsel for the appellants would contend that the trial Court, without appreciating the evidence on record in a proper manner, came to a wrong conclusion and decreed the suit, and that the appeal may be allowed by setting aside the decree and judgment passed by the trial Court.

11. Per contra, learned counsel for the respondent/plaintiff would contend that, on appreciation of the entire evidence on record, the learned trial Judge VGKR, J. AS_341_2009 rightly partly decreed the suit and there is no need to interfere with the findings arrived at by the trial Court, and that the appeal may be dismissed by confirming the decree and judgment passed by the trial Court.

12. Heard Sri T.V.S. Prabhakar Rao, learned counsel, representing Sri Musudi Babji, learned counsel for the appellants and Sri Dasari S.V.V.S.V. Prasad, learned counsel, representing Sri Kommula Venkata Ratna Rao, learned counsel for the respondent.

13. Now, in deciding the present appeal, the points that arise for determination is as follows:

1. Whether the plaintiff/respondent is ready and willing to perform his part of the contract and the plaintiff is entitled to the relief of specific performance of agreement of sale dated 07.02.2007?

2. Whether the trial Court is justified in decreeing the suit by granting the relief of specific performance of agreement of sale dated

07.02.2007?

14. Point Nos.1 & 2: Whether the plaintiff/respondent is ready and willing to perform his part of the contract when the plaintiff is entitled to the relief of specific performance of agreement of sale dated 07.02.2007? Whether the trial Court is justified in decreeing the suit by granting the relief of specific performance of agreement of sale dated 07.02.2007? VGKR, J. AS_341_2009 The undisputed facts are that the defendant Nos.1 and 2 are the absolute owners of the plaint schedule property and they are husband and wife, and they agreed to alienate the plaint schedule property Rs.6,00,000/- to the plaintiff, and both the parties agreed to the same, and the defendant Nos.1 and 2 executed an agreement of sale on 07.02.2007 with an intention to alienate the schedule property to the plaintiff for an amount of Rs.6,00,000/- and received an advance sale consideration of Rs.60,000/- on the date of the agreement of sale, and they have received an amount of Rs.40,000/- on 07.02.2007 under Ex.A-2 endorsement on Ex.A-1 agreement of sale.

15. It was contended by the appellants that the time limit fixed for performance of the contract by both the parties is 10.03.2007, but the plaintiff is not ready to pay the balance sale consideration within the stipulated time and that he is not entitled to the main relief of specific performance of the agreement of sale. It is an admitted fact by the appellants that they received the advance sale consideration of Rs.60,000/- on 07.02.2007 on the date of the agreement of sale and they received an amount of Rs.40,000/- on

12.02.2007, and the execution of Ex.A-1 agreement of sale is undisputed by both the parties. It is an admitted fact that on 02.03.2007, the plaintiff got issued a legal notice to the defendants. The defendant No.1/D.W.1 admitted that he received the legal notice on 12.03.2007 and he issued the reply notice on 07.04.2007. The aforesaid admission of D.W.1 clearly goes to show that though the defendants received the legal notice on 12.03.2007, they issued a VGKR, J. AS_341_2009 reply notice only on 07.04.2007, long after the time stipulated by both the parties for performance of the contract.

16. The suit is based on Ex.A-1 agreement of sale said to have been executed by both the defendants. The execution of Ex.A-1 agreement of sale is undisputed by the defendant Nos.1 and 2. It is undisputed by both the parties that the suit schedule property is the absolute property of the defendant Nos.1 and 2. The recitals in Ex.A-1 go to show that both the defendants, being husband and wife, agreed to sell the plaint schedule property for an amount of Rs.6,00,000/- to the plaintiff and the plaintiff agreed to the same, and the defendant Nos.1 and 2 received the advance sale consideration of Rs.60,000/- on the date of the agreement of sale, and the remaining sale consideration of Rs.5,40,000/- had to be paid on or before

10.03.2007 and, after receiving the same, both the defendants had to execute a registered sale deed in favour of the plaintiff. Admittedly, there is no recital in Ex.A-1 agreement of sale that if the parties fail to perform their part of the contract on or before 10.03.2007, the agreement shall stand cancelled and the advance amount shall be forfeited. The execution of Ex.A-1 agreement of sale and receipt of the advance sale consideration on the date of the agreement and the receipt of another amount of Rs.40,000/- under Ex.A-2 endorsement on Ex.A-1 agreement of sale are undisputed by the appellants.

17. The plaintiff filed the suit based on Ex.A-1 agreement of sale said to have been executed by both the defendant Nos.1 and 2. To discharge his initial burden, the plaintiff relied on the evidence of P.W.2, who is one of the VGKR, J. AS_341_2009 attestors to Ex.A-1 agreement of sale. As stated supra, the execution of Ex.A- 1 agreement of sale and receipt of the advance amount of Rs.60,000/- on the date of the agreement of sale and receipt of Rs.40,000/- under Ex.A-2 endorsement by both the defendants are undisputed by the defendant Nos.1 and 2. The defendant No.1/D.W.1 admitted in his evidence itself that it is a fact that he and the defendant No.2 executed Ex.A-1 agreement of sale in favour of the plaintiff on 07.02.2007 and they also received Rs.60,000/- as advance under Ex.A-1 agreement of sale. He further admitted that it is a fact that when P.W.1 approached them on 12.02.2007, they received an amount of Rs.40,000/- from the plaintiff and got it endorsed on the reverse of Ex.A-1 as Ex.A-2 endorsement.

18. In a case of J.Samuel and others vs. Gattu Mahesh and others1, the Hon’ble Apex Court held as follows: “16. Personal bars to relief.—Specific performance of a contract cannot be enforced in favour of a person— (a)-(b) (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation.—For the purposes of clause (c),— (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.” 1 (2012) 2 SCC 300 VGKR, J. AS_341_2009

19. In a case of Saradamani Kandappan vs. S.Rajalakshmi and others2 the Hon’ble Apex Court held as follows: The question whether time is the essence of the contract, with reference to the performance of a contract, what generally may arise for consideration either with reference to the contract as a whole or with reference to a particular term or condition of the contract which is breached. In a contract relating to sale of immovable property if time is specified for payment of the sale price but not in regard to the execution of the sale deed, time will become the essence only with reference to payment of sale price but not in regard to execution of the sale deed. Normally in regard to contracts relating to sale of immovable properties, time is not considered to be the essence of the contract unless such an intention can be gathered either from the express terms of the contract or impliedly from the intention of the parties as expressed by the terms of the contract.

20. In the present case, the execution of Ex.A-1 agreement of sale and receipt of the advance sale consideration of Rs.60,000/- and also receipt of Rs.40,000/- under Ex.A-2 endorsement are undisputed by both defendants. It is also an undisputed fact that within the stipulated time, the plaintiff issued a legal notice informing the defendants of his readiness to obtain the registered sale deed, but the defendants failed to perform their part of the contract and issued a reply notice beyond the time stipulated by both the parties. The above series of events clearly goes to show that the plaintiff was ready and willing to perform his part of the contract from the date of the agreement of sale.

21. The appellants contended in Paragraph No.8 of the written statement that the plaintiff lodged a police complaint against the defendants on

25.03.2007, before the Station House Officer, II Town (Law & Order) Police 2 2011 (12) SCC 18 VGKR, J. AS_341_2009 Station, Visakhapatnam, wherein the defendant and the plaintiff came to an understanding that the plaintiff agreed to receive the advance paid by him to an extent of Rs.1,00,000/- within a period of two (02) months from 25.03.2007, wherein the defendants agreed to sell the property to third parties to discharge the amount of Rs.1,00,000/- or by other means, based on the said undertaking, the defendants approached the plaintiff on several occasions starting from

25.03.2007 till the date of filing of the suit, but the plaintiff intentionally avoided receiving the same for the reasons best known to him. In order to prove the same, no defence was put forth by the appellants to show that they and the plaintiff came to an understanding that the appellants had to refund the amount of Rs.1,00,000/- to the plaintiff and, though the appellants offered to refund the amount of Rs.1,00,000/- to the plaintiff, the plaintiff intentionally did not receive the same.

22. The plaintiff in the present suit proved that from the date of contract till the date of filing of the suit, he is ready and willing to perform his part of the contract, but the defendants failed to discharge their part of the contract. “The factum of readiness and willingness to perform the part of the contract is to be adjudged with reference to the conduct of the parities. The facts of the present case particularly the conduct of the appellants would amply demonstrate that they were not ready nor have the intention to perform their part of the contract.”

23. It was settled that in deciding whether to grant remedy of specific performance, specifically in a suit relating to sale of immovable property, the Court must be cognizant of the conduct of the parties. VGKR, J. AS_341_2009 It is settled law that for relief of specific performance the plaintiffs have to prove that all along and till the final decision of the suit, they were ready and willing to perform their part of the contract. It is the bounden duty of the plaintiffs to prove their readiness and willingness by adducing evidence, this crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in the plaint of readiness and willingness, would not suffice. Admittedly, in this case, from the date of the agreement of sale till the date of filing of the suit, the plaintiff was ready and willing to perform his part of the contract. But, the defendants failed to discharge their part of the contract, and the execution of the agreement of sale was proved by the plaintiff, which is supported by the admissions of D.W.1. The defendants failed to discharge their duty to prove that they were ready and willing to perform their part of the contract by adducing cogent evidence. They also failed to prove that both the parties came to an understanding that the defendants had to refund the advance sale consideration. The remedy provided must not cause injustice to a party specifically when they are not at fault. In the case on hand, the plaintiff proved right from the date of the contract i.e., from VGKR, J. AS_341_2009

07.02.2007, he is always ready to perform his part of the contract, but the defendants have not came forward to discharge their part of the contract. As stated supra, there are so-many laches on the part of the defendants in not performing their part of contract.

24. Admittedly, the plaintiff placed acceptable evidence to show that he was ready and willing to perform his part of the contract from the date of Ex.A-1 till the date of institution of the suit. But, no rebuttal evidence was produced by the defendants to show that there were no laches on their part in performing their part of the contract. The remedy provided must not cause injustice to a party, specifically when he is not at fault. Admittedly, there were no laches on the part of the plaintiff in performing his part of the contract, but there were several laches on the part of the defendants in not performing their part of the contract. Therefore, the plaintiff was entitled to the relief of specific performance of the agreement of sale dated 07.02.2007. By giving cogent reasons, the learned trial Judge rightly decreed the suit by granting the relief of specific performance of the agreement of sale dated 07.02.2007. Therefore, there was no need to interfere with the findings arrived at by the learned trial Judge in the judgment dated 25.02.2009.

25. In the result, the present Appeal Suit is dismissed, confirming the decree and judgment dated 25.02.2009, in O.S.No.743 of 2007 passed by the learned IV Additional Senior Civil Judge, (FTC) at Visakhapatnam. On considering the facts and circumstances of the case, each party shall bear its own costs in the appeal suit. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall VGKR, J. AS_341_2009 stand closed Date: 29.07.2026 SRT Whether the order is: __________________________ V. GOPALA KRISHNA RAO, J. Speaking Reasoned Reportable Non-reportable ☑ ☑