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THE HON'BLE SRI JUSTICE M.LAXMAN
CITY CIVIL COUORT APPEAL NO.155 OF 2000
JUDGMENT:
1. The present appeal has been directed against the Judgment and Decree dated 30.03.1994 in O.S.No.1080 of 1985 on the file of the III Additional Judge, City Civil Court, Secunderabad, wherein and whereby, the suit filed by the appellant for specific performance of oral agreement dated 17.10.1981 was partly allowed for the relief of refund of earnest money and dismissed the relief of specific performance of agreement.
2. The appellant is the plaintiff and respondents herein are the defendants. For the convenience sake, the parties herein are referred as they are arrayed in the suit.
3. The sum and substance of the case of plaintiff is that there was an oral agreement between the plaintiff and first defendant represented by the second defendant for sale of immovable property to an extent of 400 sq. yards, forming part of plot No.19, Sy.No.196/3 and 4, situated at Ravindranagar, Sithaphalmandi, Secunderabad (hereinafter referr4ed to as suit schedule property) for a sale consideration of Rs.52,000/-. On the date of oral agreement, an amount of Rs.5,000/- was paid. It was also agreed that the defendants shall furnish the title deeds of the suit plot i.e., no-encumbrance certificate and income tax clearance certificate. Subsequently, on demand made by the defendants, the plaintiff paid Rs.18,000/- towards further sale consideration. A receipt was passed for the payment of Rs.5,000/- as well as Rs.18,000/- under Exs.A1 and A2.
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4. The plaintiff has been demanded the defendants to come forward to perform their duty and that the defendants have been trying to alienate the property to the third parties, hence a legal notice dated 04.10.1983 has been issued to the defendants to perform their obligation by furnishing required documents and execute the sale deed. It was also agreed that the balance sale consideration was payable at the time of registration of the sale deed. A reply was given by the defendants, stating that they repaid the advance amount and cancelled the agreement and they denied receipt of Rs.18,000/- from the plaintiff. The plaintiff further issued a notice dated 18.11.1984 demanding the defendants to execute the sale deed and when there was no response from the defendants, the present suit has been filed.
5. Originally, the suit was filed against the first and second defendants and subsequently, the third defendant was impleaded.
6. The sum and substance of the case of the first and second defendants is that first defendant admits that he entered into the oral agreement dated 17.10.1981 and also the payment of Rs.5,000/- and denied the receipt of Rs.18,000/- on 17.01.1982. They also admits that they agreed to produce the no-encumbrance certificate and income tax clearance certificate. They claimed that when the plaintiff insisted for no objection certificate from railways, they expressed their inability and cancelled the agreement and refunded Rs.5,000/-. They also claimed that the suit is not filed within the period of limitation.
7. The third defendant filed his written statement. He claimed that Rs.5,000/- which was paid by the plaintiff to the first and 3 second defendants was refunded and the agreement was cancelled and no further amounts were received from the plaintiff by the first and second defendants. The obligation was not performed on account of the dispute raised by the plaintiff with the railways and as such, the agreement was not enforced. It is also pleaded that the first and second defendants have no power to sell the suit plot as the third defendant was beneficiary and he is the absolute owner of the suit plot.
8. The trial Court on the basis of the above pleadings, framed the following issues and additional issues:-
1. Whether the plaintiff is ready and willing to perform his part of contract ?
2. Whether the plaintiff failed to pay further sum of Rs.18,000/- to defendant No.2 on 07.01.1982 ?
3. Whether the agreement has been cancelled mutually as alleged by defendants ?
4. Whether the plaintiff is entitled to damages of Rs.52,000/-
alternatively ?
5. Whether this suit is barred by limitation ?
6. To what relief ?
Additional Issues:-
1. Whether defendant No.3 is absolute owner of the property and defendant No.2 is not competent to sell the suit plot as such the agreement of sale if any is not binding on the defendant No.3 ?
2. Whether the defendant No.3 received any payments from defendant No.2 towards sale consideration ?4
9. The plaintiff himself examined as PW.1 and marked Exs.A1 to A7. The defendants examined DWs.1 to 4 and marked Exs.B1 to B4.
10. The trial court after appreciating the evidence on record, found that the plaintiff established his entering into oral agreement and rejected the claim of defendants with regard to cancellation of contract and receipt of Rs.18,000/- on 07.01.1982. Further, specific performance of contract was refused on the ground that the defendants could not get no-objection from the railways. Hence, the present appeal.
11. Heard.
12. The point for consideration is:
"Whether the plaintiff is entitled for specific performance of contract" ?
13. The contention of the counsel for the plaintiff is that the trial Court having upheld the validity of the agreement, has erred in denying the specific performance, therefore prayed to allow the appeal.
14. As seen from the pleadings of the plaintiff, the own admission of plaintiff shows that at the time of oral agreement, there is no condition that the defendants 1 and 2 shall produce no objection certificate from the railways. The only condition was to produce title deeds, no-encumbrance certificate and income tax clearance certificate. The additional condition of no objection certificate from the railways was brought into picture in the legal notice dated 04.10.1984. Putting additional condition is unilateral. It means, 5 the plaintiff is not satisfied with the title of the defendants as was projected at the time of entering into the agreement. Putting additional condition shows that the plaintiff is not ready and willing to perform his part of contract with the terms and conditions when the agreement of sale was initially entered between the parties. By putting additional condition, he unilaterally altered the performance of contract and when the plaintiff is tried to create cloud over the title of the defendants by insisting no objection certificate from the railways and when the defendants unable to get no objection certificate from the railways, the defendants cannot be ordered to discharge their obligation as wished by the plaintiff. This additional condition made the parties not to discharge obligation under the contract, which they entered at the time of agreement. When the plaintiff himself is not ready and willing to perform his part of contract by paying balance consideration, the primary requirement to enforce the contract has not been established.
15. The trial Court rightly disallowed the specific performance and therefore, it requires no interference. The point is answered accordingly.
16. In the result, the appeal is dismissed. No order as to costs. The Miscellaneous petitions pending if any shall stand closed.
________________ M.LAXMAN, J Date: 15.11.2021.
Shr.
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THE HON'BLE SRI JUSTICE M.LAXMAN CITY CIVIL COURT APPEAL NO.155 OF 2000 Date: 15.11.2021.
Shr.