THE HONOURABLE JUSTICE G. SRI DEVI
A.S.No.1903 of 2003
JUDGMENT:
The present Appeal Suit is filed against the judgment and decree, dated 30.06.2003, passed in O.S.No.122 of 1995 on the file of the Principal Senior Civil Judge, Ranga Reddy District at N.T.R. Nagar, Hyderabad, wherein and whereby, the suit filed by the 1st respondent/plaintiff for specific performance of contract of sale dated 13.04.1994 in respect of land admeasuring 600 square yards forming part of 1280 square yards in Plot No.9 in Sy.No.129/1 of Kothapet Village, Uppal Mandal, Rangareddy District, was decreed.
The appellant is the 2nd defendant, 1st respondent herein is the plaintiff and the 2nd respondent is the 1st defendant before the trial Court. For convenience of reference, the ranks given to the parties in O.S.No.122 of 1995, before the trial Court, will be adopted throughout this judgment.
The plaintiff filed the above suit against the defendants for the following reliefs:-
1. to direct the defendants to execute and register a sale deed in favour of the plaintiff for the land measuring 600 square yards forming part of Plot No.9 in Survey No.129/1 situated at Kothapet Village, Uppal Mandal, L.B.Nagar Municipality, Ranga Reddy District.2
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2. If the defendants fail to execute and register the sale deed, the Court may execute and register the sale deed in respect of the said property in favour of the plaintiff and also
3. to direct the defendants to deliver the suit schedule property to the plaintiff.
It is alleged in the plaint that the defendants are the owners of open land admeasuring 1280 square yards bearing Plot No.9 in Sy.No.129/1 situated at Kothapet Village, Uppal Mandal, having purchased the same under a registered sale deed dated 18.03.1989. The plaintiff entered into an agreement of sale, dated 13.04.1994 with the defendants to purchase the land admeasuring 600 square yards out of 1280 square yards for a total consideration of Rs.1,50,000/-. The plaintiff paid a sum of Rs.1,45,000/- to the defendants as part of sale consideration on the date of the agreement and the same was acknowledged by the defendants. Under the agreement referred to above, it was stipulated that the balance consideration of Rs.5,000/- shall be paid by the plaintiff to the defendants at the time of registration of sale deed, which will be on or before 06.07.1994. At the time of agreement of sale, the defendants handed over the link documents to the plaintiff. The plaintiff has expressed his willingness to the defendants that he is ready much earlier than 06.07.1994 with the amount and requested the defendants to execute the sale deed and receive the amount at 3 GSD, J as_1903_2003 the time of registration, but for the reasons best known, the defendants were evading to do so. Though the plaintiff paid almost the entire sale consideration except a paltry sum of Rs.5,000/- and offered to pay the balance amount, the defendants evaded to fulfil their obligation under the agreement of sale with an ulterior motive to deprive the plaintiff of his rights and benefits arising out of the transaction. As the defendants failed to give any response to the repeated oral demands made by the plaintiff, the plaintiff got issued a legal notice dated 03.01.1995 to the defendants. The 1st defendant refused to receive the said notice, whereas the 2nd defendant received the said notice. After receiving the same, the defendants got issued reply on 27.02.1995. It is further stated that the allegation made in the reply notice that the plaintiff was not ready to pay the balance amount is incorrect and untenable. The plaintiff has always been ready and willing to perform his part of the terms of agreement and still continued to be ready to fulfil his obligation under the agreement. It is also stated in the plaint that in view of the fact that almost the entire consideration was paid at the time of agreement, the possession of the schedule property was delivered to the plaintiff. However, after the receipt of the legal notice, the defendants trespassed into the suit schedule property and, therefore, the plaintiff was constrained to seek for possession of the suit schedule property also.
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GSD, J as_1903_2003 The 1st defendant filed written statement denying material allegations of the plaint, inter alia contending that the suit filed by the plaintiff for specific performance is neither maintainable in law nor on facts. It is admitted that the defendants are owners of plot No.9. It is also stated that the agreement of sale was executed only as a security to the hand loan advanced by the plaintiff's attorney holder M.Linga Murthy, as such a paltry amount of Rs.5,000/- was mentioned in the said agreement of sale. The G.P.A. holder of plaintiff had executed through the defendants, a G.P.A. in favour of one Anand, who is none other than the sister's son of G.P.A. holder of the plaintiff. The said G.P.A. was executed on 13.04.1994 itself to carry out the terms of agreement of sale dated 13.04.1994. It is also stated that having paid a sum of Rs.1,45,000/-, the question of seeking time till 06.07.1994 shows that the agreement of sale is not executed as a sale transaction. It is further stated that the 1st defendant has not received any legal notice as alleged in the plaint. As per the terms of the agreement of sale, the time is the essence of the contract. As the terms are not complied with, the same has been deemed to have been cancelled. The G.P.A. holder of the plaintiff is a licensed money lender. In the said money transactions, the defendants are forced to sign on several sale papers due to the pressures of the G.P.A. holder to pay the amount. The 1st defendant addressed a letter on 07.12.1994 intimating the cancellation of the 5 GSD, J as_1903_2003 agreement of sale and also the cancellation of the G.P.A. dated 13.04.1994 and to return back the original document. It is further stated that the name of the plaintiff was shown only as dummy to avoid taxation problem. Therefore, he prayed to dismiss the suit.
The 2nd defendant filed written statement denying material allegations of the plaint, inter alia contending that the alleged agreement of sale is time barred. The G.P.A. holder of the plaintiff obtained a registered G.P.A. from the defendants in respect of the suit schedule property on 13.04.1994 from the Sub-Registrar's Office, Uppal, which was cancelled on 10.08.1994. While supporting the other contentions of the written statement of the 1st defendant, this defendant stated that no possession was delivered nor the defendants trespassed as alleged in the plaint. The present suit was filed at the instance of the brother of the plaintiff by name Linga Murthy and prayed to dismiss the suit.
On the basis of the aforesaid pleadings, the trial court framed the following issues-
1. Whether the plaintiff is entitled for specific performance of the agreement of sale dated 13.04.1994 in respect of the suit schedule property?
2. To what relief?
During trial, the plaintiff was examined as P.W.1 and got marked Exs.A1 to A6. On behalf of the defendants, D.W.1 was examined and no documents were marked.
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GSD, J as_1903_2003 The trial Court, on consideration of the rival contentions and also the entire material available on record, decreed the suit. Against the said judgment and decree, the present appeal is filed by the 2nd defendant.
Heard Sri D.V.Seetharam Murthy, learned Senior Counsel appearing on behalf of Ms. Pitla Sailaja, learned Counsel for the appellant/2nd defendant; Sri Vedula Venkata Ramana, learned Senior Counsel for the 1st respondent/plaintiff, Sri Anjaneyulu Chandubatla, learned Counsel for the 2nd respondent/1st defendant and perused the record.
Learned Senior Counsel for the appellant/2nd defendant would submit that as per Ex.A1 agreement, out of total consideration of Rs.1,50,000/- only Rs.5,000/- remained to be paid by 06.07.1994, plaintiff was put in possession of the suit schedule property and link documents were also handed over to the plaintiff and under clause (12) of Ex.A1, defendants executed G.P.A. bearing No.304 of 1994 in favour of K.Anand, a nominee of the plaintiff's relative exclusively to carry out the terms of Ex.A1 and the plaintiff does not know the contents of said G.P.A. and also who signed on the plaint; and that Ex.A1 was not sufficiently stamped or registered as it was a formal document for the purpose of security to a hand loan. He further submits that if at all the sale transaction between 7 GSD, J as_1903_2003 the plaintiff and defendants was complete in all respects, but the plaintiff failed to explain as to why he did not get the sale deed executed by the defendants' GPA holder in respect of the suit schedule property after 06.07.1994, which was the time specified in Ex.A1 for execution of a registered sale deed. He also submits that the G.P.A., dated 13.04.1994 executed by the defendants in favour of the said Anand, nominee of the plaintiff to carry out the terms of Ex.A1 was cancelled on 10.08.1994. He further submits that in the cross-examination, plaintiff admitted that he knew the defendants through his own brother Lingamurthy and that Lingamurthy was also present at the time of execution of Ex.A1 and he also admitted that the said Anand, in whose favour the defendants executed a registered G.P.A. for carrying out terms of Ex.A1, is the sister's son of Lingamurthy. In the cross-examination done on behalf the 2nd defendant, plaintiff admitted that he does not know who purchased the stamp paper on Ex.A1; he had executed G.P.A. in favour of his brother Linga Murthy; he is not an income tax assessee and after paying the amount, he obtained the receipt but, he does not know who signed on receipt as witnesses and he also does not know who signed as witness on Ex.A1. Learned Senior Counsel further submitted that the plaintiff did not examine Lingamurthy, who is his G.P.A. holder, to rebut the allegations that Ex.A1 was executed towards security to a loan transaction between Lingamurthy and defendants and that the plaintiff also did not file any rejoinder to 8 GSD, J as_1903_2003 these allegations. Learned Senior Counsel also submits that the plaintiff failed to discharge the initial burden that Ex.A1 was not a security for a loan transaction by examining any of the witnesses, who attested Ex.A1; the specific contention of the defendants is that Ex.A1 is security to a loan transaction given to G.P.A. holder of the plaintiff and it is for that reason it was insufficiently stamped and not registered and that the plaintiff did not let in any rebuttal evidence on the contention of the defendants that Ex.A1 is only a security to a loan transaction between Lingamurthy and the defendants. Learned Senior Counsel further submits that in her evidence, D.W.1 admitted her signature on Ex.A1, but categorically stated that she does not know the contents of Ex.A1 as she cannot read English and she does not know the plaintiff; one Lingamurthy was known to her as he was friend of her husband; her husband signed on Ex.A1 as witness and on the instructions of her husband, she signed Ex.A1 as she was told that for the money owed by her husband to Lingamurthy as a surety she had to sign Ex.A1 and as such she signed on it. Learned Senior Counsel also submits that the trial Court ought not to have placed too much importance that the plea of discharge was taken in the legal notice at the first instance. Learned Senior Counsel further submits that O.S.No.120 of 1995 was also filed for specific performance of the remaining extent of 680 square yards by Lingamurthy, as G.P.A. holder of the plaintiff therein and the contents of agreement of sale and the averments in 9 GSD, J as_1903_2003 the plaint are identical. He also submits that the 1st defendant was not examined as he was out of the Country, but unfortunately this fact does not find place in the docket proceedings and the same was not noted by the Advocate-Commissioner. It is for this purpose, the 1st defendant was shown as 2nd respondent in the present appeal. He also submits that non-examination of the 1st defendant will not in any manner prejudice to the case of the 2nd defendant in view of the fact that D.W.1 gave evidence that Ex.A1 was a surety to a loan transaction and it stood discharged. In support of his contentions, he relied upon the judgments of the Apex Court in Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvilla's Son and others1 and S.Rangaraju Naidu v. Thiruvarakkarasu2.
Learned Senior Counsel appearing for the 1st respondent/ plaintiff would submit that the suit was filed for specific performance and for direction to register the suit schedule property in favour of the plaintiff and that the plaintiff had expressed his readiness and willingness to pay the balance sale consideration of Rs.5,000/-. He also submits that before filing the suit, a legal notice was issued on 03.01.1995 calling upon the defendants to come forward for registration of sale deed and a reply notice was given by the appellant herein stating that as per the agreement of sale, the balance consideration should have been paid on 06.07.1994 and since 1 AIR 1987 SC 2328 2 AIR 1995 SC 1769 10 GSD, J as_1903_2003 the same has not been paid, the agreement of sale stood cancelled with effect from 06.07.1994. He also submits that the execution of the agreement of sale is admitted, the payment of the consideration amount of Rs.1,45,000/- out of Rs.1,50,000/- is also admitted and the plea taken in the reply notice is that since the remaining amount i.e., Rs.5,000/- was not paid before 06.07.1994, the amount already paid stood forfeited and the agreement of sale stood cancelled. Since the execution of agreement of sale and the receipt of the amount of Rs.1,45,000/- from out of Rs.1,50,000/- have been admitted, the only contention of the appellant is that the agreement of sale stood cancelled and the amount already paid stood forfeited since the balance amount of Rs.5,000/- was not paid before 06.07.1994, does not give any effect to the execution of the agreement of sale. The contention that the agreement of sale does not reflect the intention to sell the property, but the same is only security document for the benefit of the General Power of Attorney holder Lingamurthy, is vague and is not binding upon the plaintiff. Relying upon the relevant clause Nos.1 and 2 in the agreement of sale, dated 13.04.1994, learned Senior Counsel submits that the trial Court has rightly held that the date i.e., 06.07.1994 is for the purpose of execution of sale deed and the balance consideration of Rs.5,000/- was agreed to be paid at the time of registration. Thus, the time is not essence of contract and that there is no clause that the amount paid will be forfeited and the agreement of sale will stand cancelled 11 GSD, J as_1903_2003 and as such the defendants in the specific performance suit have wrongly pleaded that non-payment of the balance sale consideration on or before 06.07.1994 would result in cancellation of the agreement of sale and forfeiture of the amount already paid. He further submits that the trial Court after considering the entire evidence on record has correctly concluded that the suit is liable to be decreed and accordingly passed the decree for specific performance. He also submits that in view of the law laid down by the Apex Court in Zarina Siddiqui v. A.Ramalingam @ R.Amarnathan3 , since the defendants have tried to mislead the Court by wrongly pleading that the balance amount has to be paid on or before 06.07.1994, which is contrary to clause (2) of the agreement of sale, the trial Court has rightly decreed the suit for specific performance. He also submits that in view of the law laid down by the Apex Court in Aloka Bose v. Parmatma Devi and others4 the contention that the purchaser has not signed the agreement of sale and only vendors have signed the agreement of sale is not a valid contention. A contract of sale will have to be primarily signed by the vendors as the obligation to execute a registered sale deed is on the vendors and not on the vendee. Having received Rs.1,45,000/- out of total consideration amount of Rs.1,50,000/- and admitted the same, it is not open to contend that the suit is not maintainable for want of 3 (2015) 1 SCC 705 4 (2009) 2 SCC 582 12 GSD, J as_1903_2003 signature of the purchaser on the agreement of sale and, therefore, he submits that there are no merits in the appeal and prayed to dismiss the same.
Learned Counsel appearing for the 2nd respondent/1st defendant adopted the arguments advanced by the learned Senior Counsel appearing for the appellant/2nd defendant.
This court being a Court of First Appeal is under an obligation to reappraise the entire oral and documentary evidence to come to an independent conclusion, not withstanding the findings recorded by the trial Court. This Court is conscious of the fact that before reversing a finding of a fact, the appellate Court has to bear in mind the reasons ascribed by the trial Court. Therefore, I would like to reappraise the entire evidence with reference to the legal position relied upon by the learned Counsel for the appellants to decide the appeals afresh, uninfluenced by the finding recorded by the trial Court. Considering the material available on record and arguments advanced by the learned Counsel for the respective parties, the points that arise for consideration are as under:-
1) Whether Ex.A1, dated 13.04.1994 is true, valid, genuine and enforceable under law?
2) Whether Ex.A1 is supported by consideration of Rs.1,50,000/-?13
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3) Whether the plaintiff is entitled to relief of specific performance of agreement of sale in respect of 600 square yards pertaining to Sy.No.129/1 of Kothapet Village, Uppal Mandal as mentioned in the plaint schedule?
The main contention of the appellant is that Ex.A1-agreement of sale, dated 13.04.1994, was merely a formal document for the purpose of security to the business dealings between the defendants and Linga Murthy, the power of attorney holder of the present plaintiff, who has filed the suit in the capacity of an agent to the plaintiff. It is also the further submission of the present appellant that under Ex.A1, out of total sale consideration of Rs.1,50,000/- only a balance of Rs.5,000/- remained to be paid by 06.07.1994 i.e., within three months from the date of execution of the agreement of sale. The plaintiff was said to have been put in possession of the property under Ex.A1, so also the link documents were also handed over to the plaintiff. Under clause (12) of Ex.A1, the defendants executed General Power of Attorney on the very same day in favour of one K.Anand, a nominee of the plaintiff's relative exclusively to carry out the terms of the agreement of sale. However, the plaintiff does not know the contents of the said G.P.A. executed in favour of the said Anand on the same day. Even the plaintiff does not know who signed the plaint. It is also the contention of the defendants that Ex.A1 was neither sufficiently stamped nor the same was 14 GSD, J as_1903_2003 registered, hence it was merely a formal document for the purpose of security to the business dealings between the defendants and Linga Murthy, who is none other than the brother of the plaintiff. It is also a specific contention of the defendants that the legal notice was issued by the plaintiff only on 03.01.1995, much after the said power of attorney which was executed in favour of Anand was cancelled on 10.08.1994 and after the transfer of the constructed house in favour of the wife of said Linga Murthy by the husband of the 2nd defendant on 13.09.1994, which clearly establishes the fact that Ex.A1 was only executed towards security to the business dealings between the husband of the appellant and the G.P.A. holder of the plaintiff. It is also the case of the appellant that when the plaintiff sought for the relief of specific performance and when the same is denied by the defendants contending that the said Ex.A1 was executed only for the limited purpose, the onus of proof is always on the plaintiff to prove the execution of Ex.A1 in any one of the modes provided under Section 3 of the Indian Evidence Act, which was not done by the plaintiff.
In order to prove execution of the document i.e., Ex.A1, the plaintiff himself was examined as P.W.1. During his cross- examination, the plaintiff admitted that "he knew the defendants through his own brother Linga Murthy; he cannot say the name of the colony where the suit property is situated as he has not visited 15 GSD, J as_1903_2003 the suit property recently; he cannot say to which side the road is existing to the suit property; he cannot say whether any road is mentioned in the suit property under Ex.A1; he cannot say who signed as witness on Ex.A1; it may be true that Anand, in whose favour the defendants executed a registered G.P.A. for carrying out terms of Ex.A1, is the sister's son of Linga Murthy".
In the cross-examination on behalf of the 2nd defendant, P.W.1 stated that "after paying the amount, he obtained the receipt, but he does not know who signed as witness on receipt and Ex.A1; he has executed G.P.A. in favour of his brother; he cannot say who got prepared Ex.A5 and Ex.A5 bears their signatures and again he says that he did not remember the same." Except himself being examined as P.W.1, the plaintiff did not chose to examine any other witness and even he did not examine the said Linga Murthy, his G.P.A. holder, to rebut the contentions raised by the defendants that Ex.A1-agreement of sale was merely a security to the business dealings between the said Linga Murthy and the defendants. Even the plaintiff did not file any rejoinder to the contentions raised by the defendants.
Thus, from a perusal of the aforesaid evidence adduced by the plaintiff, it is crystal clear that the pleadings and the evidence adduced before the trial Court is totally contrary to the agreement of sale for the simple reason that the plaintiff himself admitted that he 16 GSD, J as_1903_2003 filed the suit by signing the plaint and by paying the stamp duty, but the plaint was signed by his brother Linga Murthy as his G.P.A. holder.
A perusal of the material available on record, the plaintiff did not let-in any rebuttal evidence to the contention raised by the defendants that Ex.A1 was only a security to the business transactions between the defendants and said Linga Murthy. In her evidence before the trial Court, the appellant/2nd defendant, who was examined as D.W.1, has admitted that her signature in Ex.A1, but she stated that she does not know the contents of Ex.A1 as she cannot read English and she does not know the plaintiff; that Linga Murthy was known to her as he was the friend of her husband; that her husband signed Ex.A1 as the witness and on his instructions, she signed Ex.A1 since she was told that for the money owed by her husband to Linga Murthy as a security, she had to sign Ex.A1. She also admits that her husband and the 1st defendant were conducting business in Tiles and in that connection they borrowed money from Linga Murthy, as such they have signed Exs.A1 and A2. In this connection, it would be appropriate to refer to the judgment of the Hon'ble Supreme Court in Tejram v. Patirambhau5, wherein it was observed by the Apex Court that "On the admitted finding that the respondent was a money lender, it would be unlikely that he had 5 (1997) 9 SCC 634 17 GSD, J as_1903_2003 paid Rs.48,000/- as cash consideration for that agreement; and would not have kept quiet without asking for the delivery of possession and then without paying Rs.2,000/- for three years and filing the suit on the last date. Under these circumstances, the necessary conclusion would be that the purported endorsement was not, in fact, receipt of the amount but dues owed to him." In the said case, it was also observed that "the question that arises for consideration is whether the respondent has paid Rs.48,000/- as cash consideration towards sale transaction. It is seen that the document purporting to be an agreement of sale was not, in fact in truth and in reality an agreement of sale. Witness 2, the scribe of the agreement admitted in the examination-in-chief that he has executed several similar documents. All those documents i.e., eight out of ten relate to specific performance; all of them are those, who took loan from the respondents. It is admitted position that the respondent is a money lender. Under these circumstances, the document purporting to be an agreement for sale is in fact not an agreement of sale; it is towards the unpaid interest of the loan taken by the respondent. If it is a true sale transaction and the respondent being a businessman and having purported to have paid Rs.48,000/-, one would expect that he would seek possession or he would pay the balance consideration and request for execution of the sale deed. Instead, he kept quiet for full three years. Be that as it may, it would appear that there was money transaction between the appellant and 18 GSD, J as_1903_2003 the respondent and the respondent, being a money lender was taken documents, purporting to be an agreement of sale, from the loanee in the event of loanee's failure to pay the loan amount along with interest stipulated by him, the document would, obviously be executed with a view to enforce the repayment of loan and interest accrued thereon."
In the present case also, as already stated above, Ex.A1 was executed at the instance of the brother-in-law of the plaintiff M.Linga Murthy, as there were loan transactions between the husband of the 2nd defendant and the 1st defendant on one hand and the said Linga Murthy on the other hand and a G.P.A. was also got executed and registered in favour of one Anand, the sister's son of Linga Murthy on the same day, however, though Ex.A1 was executed in favour of the plaintiff and the total consideration of Rs.1,45,000/- was shown to have received by the defendants on the same day leaving the balance of Rs.5,000/- only and the possession of the scheduled property was shown to have taken on the same day, the plaintiff or the G.P.A. holder of the plaintiff have not taken any steps to get the document registered on the same day simply because of the reason that they were aware of the fact that Ex.A1 was executed only for the purpose of security to the loan transaction and not for any other purpose and for this reason only the plaintiff remained silent till the legal notice-Ex.A3 was issued. If at all the 19 GSD, J as_1903_2003 delivery of possession was handed over to the plaintiff, he ought not to have sought for the relief of delivery of possession, which proves the fact that the agreement of sale was not executed in the presence of the plaintiff.
In Parakanunan Veetill Joseph's Son Mathew v.
Nedumbarakuruvila's Son and others (1 supra) the Apex Court held as under:-
"14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff. The High Court has failed to consider the motive with which Varghese instituted the suit. It was instituted because Kuruvila could not get the estate and Mathew was not prepared to part with it. The sheet anchor of the suit by Varghese is the agreement for sale Ex.A1. Since Chettiar had waived his rights thereunder, Varghese as an assignee could not get a better right to enforce that agreement. He is, therefore, not entitled to a decree for specific performance."
In S.Rangaraju Naidu v. S.Thiruvakkarasu (2 supra) the Apex Court held as under:-
"2. Though the learned counsel for the appellant sought to contend that the agreement of sale was only collateral to the promissory note and that there was no consensus ad idem to sell the land under the agreement but only as a collateral security, the High Court has gone 20 GSD, J as_1903_2003 into the question and gave findings that it was not given as collateral security, but an agreement to sale, with which we are broadly in agreement. But the question is whether the decree for specific performance is to be confirmed. It is true as rightly pointed out by Shri K.R. Choudhary, learned counsel for the respondent, that since the High Court and the courts below have exercised discretion, it may not normally be interfered with under Art, 136 of the Constitution, but the fact remains that the respondents are money-lenders and that they sought to recover the amounts due to them. Since the appellant was not b a position to pay the amount due on the promissory note, he entered into the agreement to sale the property and the agreement was sought to be enforced. Though the appellant had agreed to sell the property to respondents, the pre-dominant object thereby would be for recovery of the dues with interest. He who demands equity must do equity. Court has discretion. Court is not bound to grant specific performance. It depends on facts and circumstances in each case."
Granting of specific performance is an equitable relief, though the same is now governed by the statutory provisions of the Specific Relief Act, 1963 (for short "the Act"). These equitable reliefs are incorporated in Section 20 of the Act. While granting the relief of specific performance, the statutory guidelines shall be in the forefront of the mind of the Court. In the present case, the trial Court had the added advantage of recording the evidence and seeing the demeanour of the witnesses ought to have also kept in mind the statutory guidelines as stipulated in Section 20 of the Act. Discretion of the Court regarding grant of specific relief is not to be exercised in arbitrary or unreasonable manner. On the facts as emerged from the record, the plaintiff has tried to take unfair 21 GSD, J as_1903_2003 advantage of the defendants and had approached the Court with unclean hands and had behaved unfairly throughout. It is also clear that the plaintiff has made futile attempts to legalise the illegal acts of his brother M. Linga Murthy, who is also the power attorney holder of the plaintiff, in respect of Ex.A1 alleging that the defendants have agreed to sell the scheduled property, which creates great suspicion in respect of genuineness of Ex.A1. The power of attorney holder M.Linga Murthy, who has entered into several transactions with the defendants and the husband of the 2nd defendant, has not entered his appearance and he has not adduced any evidence before the trial Court regarding the sale transaction and payment of consideration. Since the plaintiff failed to examine his Power of Attorney Holder, and has not proved the payment of sale consideration or the execution of agreement of sale, he is not entitled to any discretionary relief i.e., the decree for specific performance.
In the light of the observations made above, the judgments relied upon by the learned Senior Counsel for the 1st respondent/plaintiff, are not applicable to the facts of the present case.
In view of the discrepancies pointed out in the aforesaid paragraphs, the trial Court only by drawing an inference, erroneously concluded that Ex.A1 was executed for valid 22 GSD, J as_1903_2003 consideration and as such the said finding of the trial Court is liable to be set aside.
In the result, Appeal Suit is allowed, and the judgment and decree, dated 30.06.2003, passed in O.S.No.122 of 1995 on the file of the Principal Senior Civil Judge, Ranga Reddy District, is hereby set aside. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
_____________________ JUSTICE G. SRIDEVI 05.10.2021 Gkv/Gsn