Counset for the Aplreltant SMT VEDULA CHITRALEKHA Counsel for the v. HARI HARAN c.c.c.A No

Initially, respondenls No 1 to 5' who are the plaintiffs in 2. the suit, have filed a suit for specific performance of an Agreement of Sale' dated 28-O2-1998' which is aileged to have been executed by the appellant/ defendant no'1 in favour of plaintiffs No.1 to 4 and also to direct appellant/ rlefendant No' 1 to acknowledge the possession of the plaintiffs over the suit schedule property and for consequential injunction restraining Lhe appellants / clefendants from interfering with the alleged peaceful possession of the plaint scheduie property' The trial Court after considertng the oral and documentary evidence of both sides, decreed the suit with costs and aiso directed the defendant No.l therein to execute the registered sale deed in lavour of plaintiffs in respect of the suit schedule property ...r,ilhin two months lrom the date of the Judgment Challenging the saicl Judgment defendant No 1 therein preferred I I I 2 C.C.C A NT .1;f of 2021 and delendant C.C.C.A.N:. .1 of 2O21 No.!l the -ei -r preferred

3. I)art.ic s herein are defendztnls : s arrayed convenienc. hereinafter referred t I as pla irrtiffs and before the trial court lor tL e sake of 4 350 , No.92 Tl e plz rn _ schedule property is a house t,canng l).No.g_3_ 976/92 with p,lin16 area of 149O admeasuring alt exten t of Shaliva h;,na iu,{ar, S.lnu*r. referred to as the schedule Plaint is ihal Jetndant No. 1 schedule Colony, property',) square lect, pl(,t square yards sitr- ated at Hyderalraci (..: e..einafter The a,.6pnr..rt ln the to seil hr plaint month of January, 199g ael, on obtained encumbrance that the property was no; su b jcc tr:d to had proposed r: er tificate 19-02- 199.3, trr aintiffs and got it corr ir-rned encumbran cc,s. ProI) )r-f,i in the

5. It war; al.r ged that oo 2O_O2_199g an oral agrc€ rrr )Irt of Sale was Conch-rr lccl between the plaintiffs and defenrl rnrs .br a total sale cons rie:ration of Rs.3O,OO,OOO/ and Rs 25,oO OOo/ was paid cn tL 3 same day, as part sale consid':rat on and a stamped receiprr was executed by defeqdant No i to t hzrt effcct- J It was agreed that the final terms and conditions of the contract wilt be reduccd into a u'ritten agreement of sale on or before 2a-O2-lg9a-The defendant No 1 promised to deliver the original title cleeds, pertaining to the suit schedule property' after getting the clearance from the income Tax Department under the pretext that the Annual Assessment for the years was not cleared by the lncome Tax Department' t996-L994 It was further alleged that on 28-O2-lgg\ a written 6. agreemenl o[ sale was ente red into between plaintiff Nos' i to 4 consideration of anddefendantNo.lenumeratingthetermsandconditionsand to receive the balance of sale defendant No 1 agreed Income Tax Rs.5,00,O00/ -, after obtaintng execute the expressed his willingness to clearance and registered sale deed on or before 2a-O2-lggg ' As per clause 3 of the agreement of sale ' d'ated' 28-02-1998' the defendant No' 1 agreedtodelivertheVacantandphysicalpossessionofthe schedule property and the baiance sale consideration has to be paid as soon as the vendor obtains the tax clearance and offers his readiness [o register the property' It is alleged in the plaint that plaintiffs secured the 7. balance of sale consideraLion and requested the defendant No' 1 #:jtqn I 1t 2tt-O2-1999 tet est on the 19 cQ,ooo / _ fre nent was to corn1.rl6,,6 the sale transaction by 3l-03-19(lg as tlre plaintiff set up his office cum residence :Lnd r ,rc r ion of the N{cl.orrndum of No.S has t I propel.+. ,\.as delivered. Subsequently, Under,s[611r ing (MoU) was entered on O3-O{J_ 199!t, v,herein was allegc: that defendant No. 1 had stated th:r he r:ould no t get Inc,tnte la-x clearance and agreed to pay I J9b ;n advzns 3 an i()Llnt. As the time fixed in thc a1lr expired thr: rtrfendant No.I addressed a leltcr o.t enhancing l.l re amount of sale con sideration ( I I?:;. and the sai I amount was paid by 4 (fourr ac c cheques 01 : ()-!S_1999 and an endorsement ri,as n back of thc c: recyue. It is further alleged that or_r 2g_ O defendant N. I rcquested the praintiffs to permr| hirn a tenant and i iso executed a notarized undertaking,rr stamp palter t ) execute registered sale deed on c,r bt.fr 1999. On that ,lav plaintifls have requested to .,xtcn( for registrirtiolt litr) to 30- 1 i - 1g99 and subsequen l_r., e: addressed on l7_01_20O0 and 06_03_2000, seekirrg ex trme. On 24-:.3:),OOO notice was issued by defcncleLn t No.2 cautioning pu tiir: that defendant No.1 obtainec, lc an of Rs.18,50,0,1C)/ rom bank on 3O_O7_199g. On see ng rlc r,rtice, the plaintif - No. i p61 the bank officials and inforr_red thern that plaintiffs h.tve ,.11ts1scl into agreement of sale \..1th ..i,rf_e ndant :,u:i I payee ii- l!)99 rhe r,lc e on the I l-r: trme )r( .l 1-08_ tc i;ta_y aS r F s.100/_ L'r sion of tte rl; [,ere ) No.1. On that , the Bank Manager has intimated them that they Thereafter, on according to the Procedure will Proceed O3-04-2OOO, plaintiffs got issued a registered notice directtng the defendant no' 1 to execute the registered sale deed and in the meantime the bank has hled ARC No'21/2000 for recovery of loan amount' Thereafter' plaintiffs were constrained to issue legal notice, dateci 02-O5-2000 calling upon defendant No'1 to execute the registered sare deed and it is alreged that defendant No.1 addressed a letter dated 1O-03-2OOl' undertaking to clear the loan amount and convey the suit schedule property in their favour. on the basis of the above averments' the suit was filed by the Plaintiffs '

8. Defendant No 1 had hled the rn'ritten statement in the suit denying the allegations made in the plaint and specilically pleaded that he did not enter into an Agreement of Sale with an intention to sell the suit schedule property and it was specihcally pleaded that the defendant No 1 has obtained loan andtheanti-dateagreementwaspreparedbyplaintiffNo.5asif the property was intendecl to be sold' At Para No' 13 of the written statement hled by the defendant No. 1, he specihcally pleaded that he used to borrow amounts as and when there was necessity and as and when there was pressure from creditors 6 and plain r fl No.S used to odvan6g and take sigr rzrtures on stamp pap( rs and white papers and as therr: rr.a,s a threat, he used to ,.rbr 1 the dictates of plaintiffs and u:;ed r.(, s ign on the documr:nts .r.hich were kept ready by plair.rtift_No I It u.as also pleadec thir the alleged document datecl 20_02_19c)g, s,1-r;"5 i" said to te nr ta."ized, is false as he never visitecl thc rrot e -v. f ler I by the

9. Ar P; ,i No. [S or ,L. defendant l\rr r. l, i1 ,,ya, i rne wrt t len slatcm,.n, specifically pleaded tl'La t rlair r tilf No.2 stgned as Et testor to the document i.e., (ir:neral )6q.er of Attorney (Gpr.), dated 06-01_2000, which was cxec Lt te( b-y him 1n favour. of (.lr.4allikarjun Rao, who is the brotl er-i I lar,v of Plaintiff f lo S , an d this clearly shows that the al ege, I itg roement of sale in fzrv,:-r c,f the plaintiffs is a false docunrcnt :Lnr I except the mone'r trul rsactions, at no point of time, defcncranr I c.1 has got the intenti rn to sell the property and it was c)n._\. L. jecurc loan. No F,ntd( rr.t and genuine buyer of a properrlr u, ll siq I as a wrtness to th t a lleged sale document of the sarr e F roperty executed i-r fai,tr of another person. In fact, if the gerurnr buyer comes to <no\r that there is another transaction fo - t h : sarne property, he u.: li immediately challenge the same in the < curt of law to pro:ect lris interest. The defendant No.1 aiso eave thc list a 1 ol cases frled by the plaintiffs against the defendant and others which were Pending I0 . Plaintiffs hav e hled the rejoinder to lhe written statement No.l and in Para No 15 it was pleaded that fiied bY defendant plaintiff No'2 has not signed any such document' dated 06-01-2000' executed by defendant No 1 K. Mallikarjun Rao' which is incorrect i.e., G.P.A in favor of 1 1 . Defendant No '2 has also filed the written statement stating that there is no nexus betu''een obtaining the Income Tax clearance and the original document and also pleaded that the propertY was alreadY mortgaged in favor of the Life Insurance Finance, and the original Corporation (LIC',), Housrng documents and the original title deed was with them and the equitable mortgage was already created in favor of the LIC Housing Finance, and the loan taken by defendant no'l was authorities handed over cleared by defendant no 2 and the LIC ' the documents to defendant no 2 and there was a subrogation in favor of defendant No 2 which stepped into the shoes of the ' LIC l ! I I

12. Crrr the b: rranred,rr","",r:l 8 of the above preadipgs, rlre r; iirr courr has ,,;;,";" i) [i7,_ether lter/r, -,,i,rn7"rtlte plaintiffs ,r,,,^^, rrJrer llte nlan ^-, J',li;, are en titted .,itr spectfic i.::::_;!, :!,:..!;,,,i,/ N, ,t,a, ,he :'i,Y,',':1i:"#:*;;;:':;":::":.'.'t""":^'""o rt- :iutl - iu) whc rtet. the ht^:.__.^^ praLl( cj , r,)r', "'t plaintiffs - ""'u Jor ttt.iL"t ri '"'' ot u) u,4tett,, ,r- ,," p,,o)r-','rjf,f claintigs are entitred for attentet,,z ..lief, yi) To tut.,,.r u relieJ> are entitled rt

13. In srrppr rt of tht p.w. 1 and arsr,r gof ..r=_",.:: s and got rnarl< _.d u*a.^.*'tt' defendanrs No I ;r,d 2 Exs.B I to 839. plaintiff No.5 examrncd rrrrrsrerf as four other witnes ai ro Ai45. On.behatf "r r;".:,,,.:;.:,:: vere examined as D ws' i ancl .l rr arked

14. It is pt:rlir:r nt to r appeared in th. i:,rrrrt un'ott tnut at no stage p'laindff n'i)s' l to r+ d got examined themselves. ,/ o

15. Both the parties have lead their evrdence and taking the evidence on record, the foliowing additional points that arise, also, came up for consideration: "i) Whether the suit Jiled bg the plaintiffs for specifrc perfonnonce is in consonance uith form 47 of Schedute-A of the Code of Ciuil Procedure ('the CpC")? ii) Whether the suit for specific performance filed_ is utithin the period of limitation? "

16. Whether defendant No.1 had entered into agreement of sale of the schedule property or it was an anti-dated agreement as pleaded by the appellant? a) It is relevant to mention here that plaintiff No.5 in the suit examined himself as P.W. i and a Special Power of Attorney i.e., Ex.AB8 was executed in his favor on O9-02-2O01 by the other plaintiffs. As per the pleadings and documents filed by the plaintiffs, it is their specihc case that defendant No. i had received the amount in cash and execu[ed a receipt and the same \\,as marked as Ex.A108. A perusal of Ex.AlO8, clearly shows that the persons from whom the defendant No.1 herein is alleged to have taken the amount are plaintiffs No.1 to 4 and thc name of the plaintiff No.S i.e., P.W. 1 was not rnentioned. When it comes to the typed receipt, which is marked as trx.A13O, the names of plaintiffs No. 1 to 4 are mentioned and in the said receipt the total consideration was mentioned as l0 Rs.30,0O,i,lOO,/ and that an agreement of sale in rvr it.in 1 u'ould be en[ere r] on or be fore 28 02-lgg8. Under trx 'r\ 1 ll', the agreemenl of r;:rle u'as filed and in the said agreement of sale, the nam( of plaintiff No.5 was shown. In tl-Le t'ocl-1'. lf the agreement of serle , it was mentioned that the verdor has :;ought for extcr sirn of time up to 2B-O2-Iggg t,] '.velr of an endorsemcr''f ort the receipt dated 2O-O2- 1998 and thc 'rendor had agrct rl tc) e Kecute the sale deed and registet tht: sa ne after receipt,rl ll rl ,, nsideration. b) "h: specific plea of the defendant No.1 is :irat lre had not execu 1-e.1 l:>..A 127 and there was no intenticn on th : part of the ciefen<1ant r{o.1 to sell the property and thrlt Ex.A'2',7 rs a created docunrr,rnt and the amount was not receivel, as stated under I}.Al:17 It is submitted that none of tfLe plain'i'fs i.e., plaintiffs No 1 lo 4, have entered into the witness bo:. i r d only plaintifl l'tro 5 -rrlcl entered into the witness box and he vils also a Specia Por"r r of At[orney holder of plaintifls No.l trr 4 by virtue of -hr: p r',,rer of attorney dated O9-O2-200 1 , ur.cicr F;x.A88. Though e spcr:ific plea was taken in the written s[at']rne:l-, none of the plzrintif s No. 1 to 4 have entered into ther wir nes; box to prove thzrt th,r sale consideration of Rs.25,00,O007 - u a; paid. Further. (hcrr is no evidence to show that the def,:ndr rnt No. 1 had receivcC an amount of Rs.25,00,0O0/- as on tirc rlate of lssuance of the rece ipt, under Ex.A 130. The witnesses, who were examined on behalf of the plaintiffs, i.e., p.V/s.2 and 3 are not the witnesses w-ith regard to receipt of Rs.25,O0,000/_, as on the date of issuance of receipt. Both the witnesses have spccilically stated that on the date of agreement of sale, there was no passing of consideration, even the evidence of p.W.3 was very clear that he was informed by p.W. 1 regarding the agreement of sale daLed 2g_02_1998 and also about receipt daLed 20-02-1998. The trial court has failed to take into consideration that the plea of the defendant No. I that there was no intention to sell nor he had executed the documents as pleaded by the plaintiffs. The specihc plea of the defendant No.1 was that he was in financial stress and that plaintiff No.S was helping him in money transactions and was taking the signatures of defendant no.1 and also the letters as he desired and ought to have disbelieved the plea of the plaintiffs. In the absence of any evidence, adduced on behalf of the plaintiffs, with regard to Ex.A130 by plaintiffs No. 1 to 4, that the alleged Ex.A127 was executed by defendant No.1 and it was with an intention to sell the property, it cannot be said that it is proved and, therefore, Ex.Al2T is not genuine one. 2 c) To sihc\\ LL,at E;x-A127 was not executed, as allt ged by the plaintLffs i-r the suit, the clefendant No.1 lLad spe :ilicalll' pleaded in t.ltc .n rilten statement that; "Furth'zr, 'f realtg this defendant No.1 ought lo h ttp' exea.Lterl ihe agreement of sale as alleged bg y;lctit 't ff Irro. ii, rr,Lrg the plaintiff No.2 signed the docurnett:; .et., GPA date,7 06.01-2000, got executed bg delerna no.1 ittr ctngly tgped as plointiff no.S) i't fttuor of K.Moltikt'riun Rao. The plaintiff No.S usea' to inut'l;rc this cleJe tt.dant No.1 in one or the other l'ans acti rns ond sctrrt'ztirn-es used to demand to be as surety to ttti'd panlies ,,t,itom this defendant I{o. I is not at al| I:noL ) or acquai'ttzrl. and fufther used to threaten that un'e;s this cle.le t,dctrlt No.l acts occording to his dict:ttes ne u,till see, rhat 3rd parties file the suits o.gaitst :L is d,efendcu t' No.l and also used to threaten that he u ill mal-e tL'.ls d.efendant to ntn one Court to amtther:" d) ,A ftr:r rhe written statement is liled by defenrlanl lJo 1, a rejoinder rs I lerl on behalf of the plaintiffs anc thrry L ave not disputed n iti- r :gard to the attestation of the drlcurnen - bv the plaintiff llo 2. '"he document which is attested by thc plaintiff No.2 is tnarl< :'l as trx.B 1 and the witness on behal ' of the plaintiffs u a r; :;pecilically cross-examined with reilarc to thc recitals a nrl t t- e same is evident in the cross exam in a -ion of P.W.1on il -ilE-2016 and 0i-09 2016. P.W.1 had a<lrnit lt:d that there is a sutr:;i sting registered agreement of saler u'ith r('spect to suit scherhtlc l)roperty in favor ol K.Mallikarjun Rac'' I1 really there is an aslr'('ement of sale in favor of the plaintiff';, ar' leged :/ n l3 in the plaint, plaintiff No.2 would not have attested trx. B I registered agreement of sale_cum_G_ p.A. , in favor of K.Mallikarjun Rao on 06-01-1999. When a specific plea was taken in the written statement and the witness on behalf of the plaintiffs was cross-examined on this aspect and the plaintiff No.2 has not entered into the witness box, an adverse inference, for plaintiff No.2 in not entering into the witness box can be dra',vn and, therefore, it can safely be held that the agreement of sale under Ex.A72T is a created document and hence the suit for specific performance itself is not maintainabre. plaintifr No.5 rs the power of attorney holder and the GpA was executed on 06 01-2000 and plaintiff No.S as GpA holder cannot speak of evenLs which have taken place prior to the execution of the pou.er of attorney. Hence there is no evidence on record to show that defendant No.2 has received the sale consideration of Rs.25,00,O0O/- and executed the receipt. e) It is the settled principle of law that if the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, Lhe attorney holder shall be examined, if those acts and l4 transactions have to be proved. But, in the prt'sen- case, Ex.A130 r"'as : lleged to have been executed by lefer-rcla r - no.1 in favour of pr)a intiffs No. 1 to 4 on 20-02-1998 :rncl Il> . B 1 is dated 06-t)1-1()clg. Therefore, the attorney-holde :'1P. W. 1 cannot depose or gir': :rvidence in place of his principztls for t 1l acts done by tl- c 1; rincipals or transactions or deali -rgs of the principals, of i.1- ich principals alone have personill kttort' eCge. fl Ir tre: ilgreement of sale , which is allege d tc, LLa'rt: bcen executed br. clr fendant No. 1, it is seen that the to al .sale considera--ion I h at is mentioned in the agreemerlt of sal,l \ ras a sum of Rr;.IiO, l().000 I - and it is alleged that er en 'rr1o ' to the date of agreerl3nt of sale an amounI of Rs.25,00,OOO/- v as paid and the balan:c: sale consideration was only R".5,00,0o(r/-. in the receipt, it is mentioned that the sale deed wo r1d le e <ecuted as soon as tht: clefendant No.1 gets clear:tnce lr rrn the departmer:ts. "he receipt which was marked as trx.A13'l refers to is prior to [lrt: oral agreement of sale and that the par tes are going to en t' )r into an agreement of sale on or before 28-02-1998. ['r tl-re agreement of sale, tle penod for performance tl' the lerms of the agreemerrt i s f x':d as 2a-O2-19<)9. V/l'rcn the major portion of sale considr:rll.ion is alleged to h a\r, r been paid by the plaintiffs, prio r to the ciate of agreemenL rrf r;i: le, Lhere u,as no necessity to fb: thr: pe riod for ,/ n I5 execution of the sale deed i.e., one year from the date of agreement of sale. This clearly shows that the alleged lransaction between the plaintiffs and the defendant No.l is only a money transaction and the defendant No.1 has not executed the alleged agreement of sale with an intention to sell the property.

17. LEGAL NOTICE: a) trven if there is an agreement of sale as alleged by the plaintiffs, plaintitfs No.l to 4 have not issued any notice demanding the delendant No.1 to execute the registered sale deed in terms of the agreement of sale. On the other hand, the plaintiffs have marked Exs.Al19 and Ai2O. A reading of Ex.A119, clearly shows that only notices were given by B.R.S.Chowdary, in his individual capacity, and not on behalf of the othcr plaintiffs. It is mentioned in the notice that the same was issued under the instructions of his client Mr.B.R.S,Chowdary. In the notice dated 3O_0g-2OOO, under Ex.Al 19, it is mentioned that defendant No.1 had received the token advance of substantial amount in cash on 2g_O2_799g. b) Another notice, which is dated 02-O5-20OO, marked as Ex.Ai20 also shows that the said notice is issued only on behalf ol MT.BRS Chor.vdary, and surprisingly in both the notices the 16 amounL o1 ca-ch alleged to have been paid as arivar ce t r 28-02- 1998, is nol rnentioned and it is only stated that onl..a token advance o1- s,r rlrstantia[ amount has been receir ed. Ihru s. by any stretch :f ir-r Lz:.gination, an amount of Rs.25,r)O,COO/ , out of Rs.30,0tr,C)01 l -, carl be said to be a token aclr,arce. plaintrffs No. 1 to z , ;n 'r'hose favor the agreement of sale s allegerl to have been ex:cu1r'ri, have not demanded the del'endarLt l,tro. 1 to execute the s ale deed and even the notices issuerl lt5 tlaintiff No.S/P\lv- 1 is r>r-rly in his individual capacity and rLol (,r. llehalf of the other 1rl;tintiffs. The very lact that noticr s hrl,,: 1 11 bsgn issued b'r ltlt r.tiffs No. 1 to 4 goes to show thaL the ver y' alleged agreemelll ol ;,rlc is not genuine.

18. Whethe r the suit filed by the plaintiffs for specific performance is in consonance with fotm 4Z of Scheclule_A of the C.P.C? a) In tl- e :rbsence of issuance of notice, derean.ling the defendant Nc. 1 to perform his part of the contract, I hr: ,rtLit hled by the ptainriff's is not maintainable and Lhe sarre i,.; not in consonancc x,irh Forms 4T and 48 of Schedule -A ro tlLe CpC., and the suir h t:; to be dismissed. ) 17 . b) In the case of M.Rangaiah Vs. T.V. Scrtgolrlcrrqgqnq. Rao and qnothert and in Badd.am prathp Reddg Vs. Chennadi Jalapathi Redd.g qnd. Anothep, while arralyzrng the provisions under Section 16(c) of the Specific Relief Act, 1963 and Order 6 Rule 3 of the CpC, Appendix A, Forms 4Z and 4g, of the Code of Civil procedure, it is categoricalty held that the suit is liable to be dismissed if a registered notice is not issued by the vendee to the vendor, making prior demand, before filing the suit for execution of registered sale deed stating further that he is ready and wilring to perform his part of the contract in compliance with forms Nos.47 and 48. In this context it is expedient to extract the relevant observations of the High Court of Andhra Pradesh in the case of Badd.am prorthp Red.dg (supraz). " Reading Fonn Nos. 47 and. 48 CpC together and. Section 16(c) of the Specific Relief Act, it has to be held. thot ordinaily the requirement of lanl is issuance of a registered notice bg the ptaintiff demand_ing the accepting of (balance) sale consid.eration and exeantion of sale deed bg the uendor (jirst d.efend-ant). Section 16(c) of the Specific Relief Act lags d.ou.tn that the plaintiff has to auer and proue thqt he has performed or hos alwags been readg and. tailting to perform his part of the contract. A contract for sale of immouable property ' 2ouo 151416 063 '2008 (5) ALT tq2 '?af 18 has tc; itz performed bg the buyer in acccrdanoz u'ith Secliorrs 5.1 and 55 of the Transfer of PropeftU A ct, ti82 (Tran.sfer of Propertg Act, for breuity). Sectiut !i5 o' the Trar'.sJ'er cf Property Act. contains the ig,tt:; c.nd liabtlit;.es of buger and seller. Section 55(1) (rL) o,' the Trar'-sJbr of Propertg Act lags doutn thot se'ler s bt,Lnd to e:(ecut? proper conueAonce of the propettq uther. the buyer te t,.c.ters the amount due in respect oJ the pi:e at a pr)per time and place. Section 55(5) (b) oJ'the Transfer of Properl; Act is to the effect that buger is ltound tc pay ot llLc' tn'ne and place of completing tl e sale, the purchrrce moneA to the seller and then n que sl J o ' a proFeftg conueAonce deed. The execution oJ' cor..ueA,titce deed, a:; a duty of the seller and os a ight ol bt-y<zr ltas o cttm.trtn..alitg tuith reference to time atd 'tloc z of com,cletir g transaction. There cannot be better zuid,tt-ce of sttou:i tLl compliance with these prouisicrrs Jtar lhe bugtzr s ending o registered notice to th,z : et.ler deman.di tg exeantion of a conuegance deed. lndeed. tLtis conclusi.cn is supported by the lau laid clowrt tit the Sup:etn<: Court." c) 'l'hou31-r. the Specihc Relief Act provider; lor thr -emedy for specilic pe rl.ormance under Chapter II thererf, Slect o-i 20 of the said Ac:t :nake it amply clear that the relicrf of tht ,;pecific performanc e of obligation under an agreen rent of r,;ale is discretionat' rl nature. Having said that it proc,:eds Lo .;tipulate the guidelincs to be kepI in view, while exercising t]re cl scretion so vested irr )rr: court, apart from that, the law requir.c; :ertain l9 conditions to be comply with by the plaintiff in a suit of this nature, before he claims the relief of specific performance. d) Though, the Code of Civil procedure is mostly procedural in nature, it has some attributes of substantive law. These aspects are mostly in built in the procedure itself. The Code of Civil procedure prescribes the forms to be used by the parties as well as courts, with reference to relevant provisions of law, under Appendices ,,A,' to ,'H,,, each, donated to subjects like pleadings, process, rnspection and admission, discovery, decrees, execution, appeals etc Forms 47 and 48 of the Appendix-A relate to suits for specific performance. In both the forms, two requirements are prescribed as essential; the first is that the plaintiff must have demanded or requested the defendant to perform the contract in accordance with the agreement, and the second is that the plaintiff must state that he is ready to willing to perform his part of contract. The relevant clauses read as follows: "Form No.4T:

2. The plaintiff has applied. to the d.efendant specificallg to perform the agreement on his part, but the defendant has not done so.

3. The plaintiff has been and still is readg and willing specificaUg to perform the agreement on his part of r.uhich the defendant has had noticed.. 20 Form,\'o,48:

3. Ort tte dag of......19/20, the plaintiff tenc'etetl .. Ru'cees; to the defendant, and demancled. t trorLs.l z; of the sail l)ropertA bg a sufficient instntmen,. 4. T'Lte rle,fendant has not exeanted ong i-Lstnurte, of trat.sfet 5. Tl'.e ctlinttff is still ready and willing to 1log ,.he purcl.-ase-money of the said propertu to the clef,ttcLu,_t. " e) Ir tlLr present case, it is necessary for pla nr il^s No. I to 4 Lo hrlf.ll r onditions of Form No.47 of thc C.1,. 1., and requirenrent oI Section 16(c) of the Specific Relicf Act. t,laintiffs No.1 to 4 sh tll make a demand and request ceferLciarrt No. 1 to perform thc r ontracl in accordance with the agr-eerlent

19. LIMITATION: Whether the suit r;pecific performance filed is within the period of limitatroni, a) ,{rtt< lt: 54 of the schedule appended _o rhe I irnitation Act, 19(r3 1>r'r:vides that the period of limitation Ib; specific performzrnr:c li'contract is three years and the tim,: Itr nt rn,hich the peric,d b::un to run is the date fixed for pcrformar rc e, or, if no such rleLte is fixed, when the plaintiff has rLo,_i,:c that performanr;e : s refused. b) In vis',v of the circumstances of the case, it .r.r>uld be approprirrtt: r() refer the legal position on the qu(r sr ion v.,helher time is erison( e of the contracl and can it be coLtstruc:d i I strict 2l terms. The Hon'ble Apex Court in thc case of .I(. S. Vidganadam Vs. Vairauan,: held as follows: "It has been consistentlg held by the Courts in India, following certain earty English decisions, that in the case of agreement of sale relating to immouable propertg, time is not of the essence of the contract unless specifi.callg prouid.ed. to that eJfect. The period. of limitation prescibed by the Limitation Act for ftling a suit i-s three years. From these two circumstances, it does not follou,t that any and euery suit for specifi_c perfonnance of the agreement (uthich d.oes not prouide specificaLlg that time is of the essence of the contract) should be decreed prouided it is ftlerl. within the peiod. of limitation notuithstanding in the time limits stipulated. in the agreement for doing one or the other thing bg one or the other patly. That ulould_ amount to sayinj that the time-limits prescibed bg the pafties in the agreement haue no signi_fi,cance or ualue and. that thig mean nothing. Would it be reasonabLe to say that because time is not made the essence of the contract, the time- limit(s) specifted in the agreement haue no releuance and. can be ignored uith impunitg? It would_ also mean denging the discretion uested in the Court by both Sections 10 and 20. As hetd bg Constitution Bench of this Court in chand rani vs. Kqmal rania, it is clear that in lhe case of sale of immouctble propertA there is no presumption ds to time beirLg the essence of the contract. Eueru if it is not of the essence of the contract, the Court mag infer that it is to be performed in a reasonable time if the conditions are (euident?) ( 1) from the express tenns of the controct: (2) from the nature of the property: and (3) from the surrounding circumstances, for example the object of making the contract". ' 1997 (t) SCC r ' lres;1 r scc s to 22 c) TlLe ali,resaid decision of the Hon'ble SuJrrcrLc C trrrL has been extracttrl bv the High Court ofAndhra PraCcsli in thc case ol Shaik Ma,laboob Sahab a. K. Nagesu;ara R,.:ot e rd has categoricrrlly Lt'lcl that the time being the essence ol thc ctnlract has closrr pr: x Lmity with the point of time on u,1- ich rehcl is prayed for rtn,l thus, in turn, would have a dirccl bea.nnq upon the manrrer ir L u,hich discretion of the court is to trc c lr rcised. Thus, a pe :-us:rl of the above said decision wor.rid inclir aLe that though 'ixin 1, of period, within which con tract i:. Lo be performe,l, dces not make stipulation as to tirre i; ,:ss,rncc of the contract, )lrL the intention of the parties in that re,l€ rd has to be gathererr I from the evidence by express stipulaliorls or by circumsLrnce s. rittending there to. d) In tf r. case of Parakunnan Veetil Josep h's son Matheut u. Nedubara Kuntvilab son6, which ir; re lerre d b1' the High Court o[ Andhra Pradesh irt Dannrnalapati Subba.Rao Vs. Bobbili Peda Nanchara Prasad.,7 the Hon'bie Apex C lirl laid down ccr'l-a ir I )aramete rs while granting a de<:ree for Sipecific Performa ece, ,r.l-rich are extracted as under " Se ':'iL'trt 20 of the Specific Relief Act, 1lte 3 pres?n)es ,iudicial discretion to Courts as to de:rtze ir g spectfic 1,e rfonnance. The Court should fftetic,1l()ustA consider tt.l facts and circumstonces of the ca:;e. "-lle t 200811; t-"" S.rJIn a ) 2.1 o AIR t987 Sr- 2lt8 '2009 (3) APL.r lor(,{c) Court is not bound to grant speciftc performance merelg because it is lawful to d.o so. The motiue behind the litigation should also enter in the judicial uerd.ict. The Court should take care to see that it is not used. as an instntment of oppression to haue an unfair adlantage to the plointiff' e) [n so far stipulation that the time is essence of contract is concerned, the Division Bench of High Court of A.p. in Mohammed lhrahim and. Another a. Mohammed. Abdut Razzal&, has categorically held that mere mention in agreement that time is essence of contract does not make the same as essence of contract and iI has to be decided taking into consideration, the intention of the parties, their conduct and the surrounding circumstances. [n so far the burden of proof in cases of this nature, on the plaintiff is concerned, the High Court in this decision at Para No.25 has categorically enumerated as under :- "lt is settled proposition of laut that the burden of proof is generally on plaintiff. Decision should rest on ntle as to burden of proof under laut and. also the admitted or proued circumstances of the case. The strict meaning of the utord "onus probandi, is that if no euid,ence is giuen bg the partg on uhom the burden i.s cast th.e issue must be found against him and only then the otlrcr partg has the onus of rebuttal. The first pincipLe of the Euidence Act is that a party ulho is to proue an allegation must do so. The Court cannot imagine euidence in the absence of it. The plaintiff must succeed on the strength of his own case and is not s zooz is; Alr s ro 24 assis led bljt onA tl)eakness, real or apparent in thet <ase of th,z defzndant. The defect in euidence of lhe part'r on uhotn i.lre ,nus of proof lies cannot be anred by ':il i:;nt of the, e uirlence of the other partg" f) Th cref c r,l. in the light of the settled 1eg al F'os;il ic'n ' the factual rrittrix rtl lhe present case has to be artah':lerl so as to ascertain u1-r:tlrcr the plaintiffs have proved their ' a''e :lgainst delendan t Nlo I warranting grant of decrerc br iipecific Performarce cf contract of Ex.A727 in their favour' g) As ptr the recitals of the alleged agreement of sale' Dx.Al27, tht ;,eriod prescribed for execution of ttre r:g;islercd sale deec ts ')l 02'1999. As per Article 54 of th': Lirnita tion Act, the suit ha s r r, be filed within a period of thre': 1'c lrs lrom the date fixecl in rhe agreement. Thus, when the surL is lilccl on 09.O 1.200:,. i c.. beyond the period of three years f.-om the da[e fixed in thc i:.gir-eement, the suit is barred by limrtati ln ' h) Ar:iclc ,'+ of the Limitation Act reads as f<rllor'''s:

54. F or specific performance of a contro''t Thre(t .)eors' The 'i.ate f-xed for the performance, or, if r"o sttch date is ftxecl, u'ken the plaintiff has notice that oerJcnn rnce is refusecl.. i) ,\s p,< r the provisions of the Limitation Act, tl-r': suil has to be f led u ithin three years from the drlte fixe C in the Agreement of Siale, i.e., trx. A 127 , and as the srrtt i j {i1, )c. beyond the peric,d of iritation, the same is barred. I 25 j) As per the case of the plaintiffs, the period for execution of the registered sale deed and delivery of possession of the property was llxed as 28.02. i999. Though the period was fixed as 28.02.7999, it is pleaded by the plaintiffs that they got the balance of sale consideration within two weeks and requested lo complete the saie transactions by 31.03.199g. Their subsequent plea was that the part possession of the property was delivered on 30.03. 1998, Memorandum of Understanding was entered on 03 08.1998, the letter alleged to have been addressed for encashment of sale consideration was on 2g.O2.lggg, cheques encashed were issued on 2g.05.1999 and the extension of time was up to 31.08.1999 and further extension of was time up to

30.1 1.1999 and are filed by the plaintiffs to substantiate their plea. Thus, it is highly improbable that even belore the period fixed for performance of the contract, the defendant No. t had delivered the possession of the property and further entered into Memorandum of Understanding seeking extension of time. All these documents filed under Exs.A29 to A31 and Ex.36 dated 28.02.1999, are relied upon by the plaintiffs. It is pertinent to mention that in none of the above documents the sale consideration was mentioned and for the first time the sale considera[ion was mentioned in Ex.A45, dated 03.03.2000, wherein the defendant No.1 had sought for exlension of time. 26 Thus, the aL,oi'7 I documents coupled with the oral ev dence clearly shori s th a . these documents are created b-r' tht: prizrirltiffs andthesaiclcj<(.umentshavebeenSetup,afterlht'rrcticeis issued by deft:r rLLnt No.2 that the property was m lrtg 1gc( t n i[s favor. A1l LrLe tl r':uments referred above are unilateral a l -s on the part of 1-he rlt'rfcnclant No l and there was no rlonsrens us-ad idemandthertu.asnoreplyfromtheplaintiffsapirtleLrgfor extension of tinr,: and hence the period has to be tr':alel from

28.O2.lggt\;rrt,lcventhesuitwashledonthr:btrsisc'fthe agreement clzrrt c 28.O2.1998' The plaintiffs eve n p'leat led lor alternative rciicf. though there is no specific prager seel:i;rg for the relief, l)Llt irn issue to that effect is framed by rhe .rial oourt'

20. RE^ADIN]}S S AND WILLI NGNESS: The rrial c:ourt has failed to frame an issut' as tc' r "hether the plaint'lTs; rr e rc ready and willing to perform their par t of the contract, as, t I u'hether the agreement of sale is va li'l and binding, a r-rrl a s to whether that the suit is u'ithrn the p e :rod of limitation I n t he absence of framing of any issl re o;l th e above three aspt:cl.s. tirc trial court is not justifled in decree ing tlle suit for specific 1te t formance. Even the reasoning of the tr-ial :ourl in disbelievirrg t he ltlea set up by the defendant No 1 that not execlrtod t hc agreement of saie on 28-02 1!)98 on the .re I 27 . ground that plaintiff No.2 was an attestor to the agreement of sale-cum-General power of Attorney i.e., Ex. B i executed in lavour of K.Mallikarjuna Rao, who is a relative of plaintiffs. A specific plea was taken in the written statement of defendant No. I and also p.W. I was cross_examined and plaintiff No.2, being a signatory to the document, has not entered into the witness box. The trial Court has miserably failed to take into consideration of the evidence on record and held that the dcfendant No.1 has failed to prove that plaintiff No.2 signed as an attestor on Ex.Bl. The trial court has negatived the plea set up by the delendant No.1 with regard to the money transactions only on the ground that praintiff No.S was introduced to rhe defendant No. I in the year 1999 and the agreement of sale was cxccuted in the year 199g. The trial court has not taken into consideration that there is no confirmation regarding the receipt o[ the consideration and the witnesses have clearly stated that no consideration was paid in their presence. Therefore, the reasoning of the trial Court in decreeing the suit for specific performance without framing the issues in a proper manner rs not correct 28 th'c cias'es of 21 . Thet'eforr'. since the lacts in P.Ratnasubba n.md ys. Viiagalakshmi and <>therse Tirumalasettlt Santhmmr: and others Vs'Yenu'ganti Venkaiah.ta, tiughar Singh Vs. Hari Singh (dead) through L.Rs and othzrstt, (Jppuluri Sit<: Ro,rrra:io,h and others Vs' State Bo.nk o-f India and othersl2 and the jrrdqrr-rr:nt in S.A.No.14O4 o; 2017 and CrlR.C.No.2595 cf 2013 dated '

5.g.2023 ztt rcl lhc lacts in the present case are dist ingr lishable on facts, 1i-tr.: s;rtid luclgments are of no help to thc plainti ftr'

22. In t.hc r:';ltll, the present appeais are ail':u'e'1 b1 sctting aside the Judgment and decrec passed by tht: trial Oourt in O.S.No.O!) rrf :lOO3, dated 05. lO.2O2O. There sha11 be rrc' order as to costs Mis,ccllaneous pelitions pending, if any, sha I stand closed. To, //rRuE coPY// [' \' '1 5"i'$l-lYt?$'mR i sED-t-loNoFFlcER abad(ry'ihRec'rds) isEr:EilEilef$,tfli':ryHli:H-*,j,tt]fi 5. Two CD O lPtes Ks/kam w '2o2z 17y sc t, ;8.t 'o 20 t3 15; eL,Lr .lti- " 12oz t; r scc ro; 't 1983 SCC On in: A I' -19 r '}tr I \ \ HIGH COUR'I' DATED:22lOtll2025 ORDER C.C.C.A.N o.,l of 2021 F|J t) c-c.c-A .Il.)- u2i of r-o:-l 4=riiE o v o 3 c o 11 lut 2$'6 I nr \:= ,1,1't t. i(. Allowing the CCCA Without costs. ."Otett + k" HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD TUESDAY ,THE TWENTY SECOND DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE P.SREE SUDHA C.C.C.A.No.4 and 18 ol 2021 C.C.C.A.No.4 of 2021 Between: The A.P. Mahesh Co-operative Urban Bank Ltd, a multi-state co-operative urban bank having its head' office at 5-3-989, 3rd floor, Sherza Estate,NS Road, Hvderabad ...A',ELLANT/DEFENDANT No.2 AND '1. Mrs. Nirmala Devi, Wo B.R.S. Chowdhary, 2. B.A. Charavarthi, S/o B.V.S Chowdhary, 3. Ms. B. Harini Chowdhary, D/o B.R.S. Chowdhary, 4. B.Shanti Chowdhary, D/o B.R.S Chowdhary, - 5. B.R.S Chowdhary, S/o B.V.S Chowdhary, AiL i to 5 are RJo-Plot No. 92, H.No. 83:976192, Shalivahana Nagar, Srinagar colony' Hyderabad - 73 ...RES'.NDENT/'LATNTTFFS

6. C. Nageshwar Rao, S/o Seshaiah Aged 48.years,.Occ. Business, R/o D-86' MadhJra Nagar, behind Vengalrao Nagar, Hyderabad ...RESPONDENT/DEFENDANT NO.1 G.C.C.A.No.18 ol 2O21 : Between C. iiio".n*r, Rao, S/o Seshaiah Aged 48 years, Occ. Business, Rl/o Flat No 103' Vasavi Central Court, Czech Colony' Hyderabad-S00 018. .APPELLANT/DEFENDANT NO.1 IN O.S.NO.9 Of 2OO3 And

1. Mrs. Nirmala Devi, Wo B.R.S. Chowdhary' 2. B.A. Charavarthi, S/o B.V.S Chowdhary' 3. Ms. B. Harinl Chowdhary, D/o B.R.S. Chowdhary, 4. B.Shanti Chowdhary, D/o B.R.S Chowdhary, 5. B.R.S Chowdharv, S/o B.V.S Chowdhary, - [ii i to s iiJFi/o'Plot No. 92, H.No. 83:976192' Shalivahana Nagar, srinagar Colonv. Hvderabad - 73. Al fi"';hi"1''ff;ieo.Uv tneit GPA Holder B.R.Chowdary (Plaintiff No's) S/o Lite gv.s.cnow<jani Ryo Plot No. 92, H.No. 8-3-976/92' shalivahana Nagar' srinagar colony' Hyderab"d...R".oond"nt No.1 to 5/plaintiff in o.s.No.9/2003 " 6.TheA.P.MaheshCo-operativeUrbanBankLtd,a.multi-stateco-operative naving its fiead office at 5-3-989, 3rd floor, Sherza Estate'NS .-6rnf, ,ibin , Road, Hyderabad. .,.RESPONDENT NO.6/DEFENDANT NO.2 IN O.S.NO.g OF 2OO3 C.T. GIVEN AS GIVEN IN O.S.NO.g OF 2OO3 / Appeals U/r; 96 Rl/w Order 41 Rule 1 of C.P.C against the .tudgmgnl rn26. in O.S.No.9 rrf 20C 3 dated 05.1O.2020 on thefite of theCourtof tlc,XAdditional Chief Judge City Civil Court, Hyderabad. ORDER: This appeals coming on for hearing and upon perusing the grounds ol appr:al, the Judgment and Decree of the Lower Court and the material papers in the Suit and upon hearing the arguments of Smt Vedula Chitralekha, for t re Appellant in C.C.C.A.N o.4 ot 2021 and of liri S.V.Ramana, Advocate fo" the, Appellant in C.C.G.A.N o.18 ot 2021 and of Sr.i V.Hari Haran, Advocate for the flespondent Nos.1 to 5 in both Appeals. This Court rloth Order and becree as follows : 1. That lhe appeals be and hereby are allowed. 2. fhil [ho Judgment and decree passed by the trial Oour in O.S.No.9 of 20C3 datr:cl 05.1O.2020 be and hereby is set aside. 3. That ther-. shall be no order as to costs in these appeerls. Sd/. K. SITINIVASA RAO .,JOIiIT REGISTRAR //TRUE COPY// I To,

1. The X l\ddit c nal Chief Judgb, City Civit Court, HyOe)aOaO 2. Two C[) C;ot) es Ks/kam w SECIION OFFICER HIGH COURT DATED:2210'412025 COMMON DECREE C.C.C.A No,4 AND 18 of 2021 Allowing th,: CCGA Without costs. t) l^t"' on( '&- )