THE HONOURABLE THE ACTING CHIEF JUSTICE
M.S. RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T. VINOD KUMAR
CIVIL MISCELLANEOUS APPEAL NO.433 OF 2020
JUDGMENT: (Per Hon'ble the Acting Chief Justice M.S.Ramachandra Rao)
1. This appeal is filed challenging the order dt.08.01.2020 in
IA.No.1445 of 2019 in OS.No.142 of 2019 of the Principal
District & Sessions Judge at Mahaboobnagar.
2. Appellants herein are the defendants 1 to 4 in the above
suit.
3. The said suit was filed by the respondent/plaintiff against
the appellants for specific performance of an Agreement of Sale Ex.A1 dt.10.06.2014 and for costs.
4. Appellants 1 to 3 are brothers and 4th appellant is the daughter of the 3rd appellant.
5. It is not in dispute that appellants 1 to 4 are owners of the suit schedule property.
The case of the respondent/plaintiff
6. According to the respondent/plaintiff, appellants offered to sell the suit schedule properties to him and executed Ex.A1 Agreement of Sale dt.10.06.2014 agreeing to sell a total extent of Acs.48.10½ gts in Schedule-I and Acs.12.26½ gts in 2 Schedule-II of the said agreement, the total extent of Acs.60.36 gts, and the total consideration amount agreed was Rs.5.3 Crores.
7. According to him, a total sum of Rs.3,51,70,000/- was paid by him to the appellants, and for a portion of the land covered by the Agreement of Sale, a sale deed dt.20.08.2015 was executed by the 2nd appellant on behalf of his minor son Surendra Rao for Acs.11.24 gts in favour of the respondent/plaintiff; and the said minor son had filed OS.No.80 of 2019 before the I Additional District Jude, Mahabubnagar against him and obtained an injunction order in IA.No.551 of 2016 dt.06.04.2018 in respect of the said properties, making allegation that he was a major and owner of the property and 2nd appellant fraudulently cheated him by stating that he was only a minor.
8. It is further contended that the son of the 3rd appellant also executed a registered sale deed dt.20.08.2015 for a total extent of Acs.9.15 gts in favour of the respondent/plaintiff as against Acs.6.15 gts noted in the sale agreement though he did not have any title for Acs.3.00 gts in Survey No.453/AA. According to the respondent, he came to know about this fact only after he approached the revenue authorities for mutation. 3
9. It is further submitted that the 2nd appellant executed registered sale deed dt.20.08.2015 for apportion of the land covered by Ex.A1 Agreement.
10. It is also contended that the 2nd appellant executed a General Power of Attorney/Ex.A8 dt.20.08.2015 for the B- Schedule property and the respondent then executed Ex.A10, agreement of sale dt.27.07.2017 in favour of one A.Narsimha Reddy. He contended that he came to know that the 3rd appellant cancelled the General Power of Attorney/Ex.A8 dt.20.08.2015 unilaterally under Ex.A9 dt.19.08.2017, which is not valid in law and not binding on him.
11. He thus contended that out of the total consideration of Rs.5.3 Crores for Acs.60.36 gts, the respondent is restricting his claim in the extent of Acs.37.31gts (which includes Acs.13.11½ gts already registered and Acs.24.20 gts due for registration) and its value comes to Rs.3,28,84,194/-. The respondent contended that he paid Rs.3,51,71,000/- and there is excess payment of Rs.22,85,800/- made by him to the appellants and he reserves his right to initiate separate proceedings for recovery of the same. He also alleged that he got issued a legal notice Ex.A33 dt.15.06.2019 to the appellants asking them to register the land to an extent of Acs.24.20 gts in 7 days but they got it returned as 'unclaimed' intentionally to avoid the registration process.
4IA.No.1445 of 2019
12. Along with the suit, he also filed IA.No.1445 of 2019 for a temporary injunction restraining the appellants from alienating the suit schedule property to third parties or creating third party interest in any manner till the disposal of the suit by reiterating the contents of the plaint.
The case of the appellants
13. Written statement was filed by the appellants opposing grant of relief to the respondent/plaintiff in the suit and also a counter affidavit was filed in IA.No.1445 of 2019.
14. They raised the plea that the suit is barred by limitation and alleged that time was essence of the contract. They also contended that the document Ex.A1 is insufficiently stamped and it cannot be relied upon and it should be impounded.
15. While admitting execution of Ex.A1, Agreement of Sale, the appellants contended that there was another Agreement of Sale dt.10.06.2014, which was suppressed by the respondent. They contended that they completed their part of duty as per the terms of the agreement and did not commit any default.
16. They denied that the respondent had paid Rs.3,51,70,000/- to them and contended that he paid only Rs.2.6 Crores.
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17. According to them, the respondent/plaintiff stated in OS.No.124 of 2017 pending on the file of the Principal Senior Civil Judge, Mahabubnagar that he had paid Rs.3,26,70,000/- and this shows that he did not come to the Court with clean hands.
18. They also alleged that the respondent did not demand the appellants to receive the balance sale consideration or requested to furnish bank accounts of the appellants to credit the balance amount in their accounts and did not also state that he was always ready with the balance amount and thus violated Section 16 of the Specific Relief Act, 1963.
19. They also alleged that the respondent had engaged antisocial elements to grab the suit schedule property because of which the appellants had to keep their lands fallow without there being any cultivation.
The order of the Court below
20. By order dt.08.01.2020, the Court below allowed IA.No.1445 of 2019 and restrained the appellants from alienating, selling, creating charge or mortgage or creating any sort of encumbrance in respect of the suit schedule property pending disposal of the suit.
21. After referring to the respective contentions of the parties it held that the Agreement of Sale Ex.A1 dt.10.06.2014 was 6 admitted to have been executed by the appellants in favour of the respondent and that the appellants had received Rs.2.6 Crores in respect of Ex.A1 Agreement.
22. It observed that there is no plea in the counter affidavit filed by the appellants in the IA that there was a second agreement executed between the parties on 10.06.2014 when Ex.A1 was executed, and the question whether there is a second agreement of sale executed on the same day will have to be decided in the trial.
23. It also observed that the appellants received Rs.1.15 Crores as can be seen from Ex.B7 legal notice dt.08.04.2017, but they did not execute sale deeds and whether this amount is to be adjusted towards mesne profits as the respondent was enjoying the land and the income derived out of the land as stated in Ex.A7, has to be decided during the trial.
24. It also observed that there was no material placed on record by the appellants to show that Ex.A1 was cancelled and was not in force.
25. It stated that the plea of the appellants that the suit is barred by limitation is an issue of fact and law, which has to be decided in the main suit.
26. It also held that whether Ex.A1 Agreement of Sale has to be treated as a Sale Deed or not, in view of Section 47A of the 7 Schedule-II of the Indian Stamp Act, 1899, is also to be determined after full trial.
27. It held that third party affidavits had been filed by the respondent, which support his claim and he had shown prima facie case and balance of convenience is also in his favour. The present Appeal
28. Challenging the same, this Appeal is filed.
29. Heard Sri G.Sheshadri, Counsel for the appellants and Sri K.Srinivas, Counsel for the respondent.
30. Counsel for the appellants contended that the respondent did not adhere to the payment schedule mentioned in Ex.A1 Agreement of Sale and had issued suit legal notice Ex.A33 on 15.06.2019, even though he had made the last payment on 21.08.2019 and filed the suit on 14.08.2019 with delay.
31. He also reiterated that there are two agreements of sale, one for the land and the other for the infrastructural development by the respondent, and only Ex.A1 was registered and the existence of the other agreement is suppressed by the respondent and so he had approached the Court with unclean hands.
32. Counsel for the respondent however supported the order passed by the Court below.
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33. We have noted the contentions of both sides.
34. Admittedly, the execution of Ex.A1 Agreement of Sale dt.10.06.2014 is for sale of total extent of Acs.60.36 gts for a total sale consideration of Rs.5.3 Crores. Clause(4) of the agreement states that the sale transaction would be completed within three months from the date of the agreement but there is no mention that time is made as essence of the contract.
35. According to the respondent, he had paid Rs.3,51,70,000/- to the appellants and the appellants had executed on 20.08.2015 three sale deeds, Ex.s A11 to A13, for portion of the land covered by Ex.A1, after receiving consideration of Rs.27,70,000/- under Ex.A11, Rs.57,15,000/- under Ex.A12 and Rs.46,85,000/- under Ex.A13, amounting to a total sum of Rs.1,31,70,000/-. Ex.A1 recites that an advance of Rs.60 lakhs was received at the time of execution of Ex.A1.
36. The plaint also refers to payment made vide cheques bearing No.4188 dt.21.08.2015 was for Rs.35 lakhs under Ex.A17, payment of Rs.15 lakhs by cheques bearing No.8980 dt.21.08.2015 under Ex.A19, and Rs.25 lakhs vide DD bearing No.502298 dt.21.08.2015 under Ex.A22.
37. When this amount of Rs.85 lakhs is added to the earlier amount, it is apparent that a sum of Rs.2,76,70,000/- has been received out of the total consideration of Rs.5.3 Crores. 9
38. In fact, in Ex.B7 legal notice dt.08.04.2017 got issued by the appellants to the respondent, they admitted that Rs.2.6 Crores was received by them by 06.09.2015.
39. Having received a substantial portion of the sale consideration under Ex.A1 dt.10.06.2014 and having also executed registered sale deeds for a portion of the land covered under the said agreement of sale, it is not open to the appellants, prima facie, to alienate the other portions of property taking the plea that payments were not made in time by the respondent.
40. As rightly observed by the Court below, the aspect of sufficiency of stamp duty of Ex.A1, the financial capacity of the respondent and the question whether the suit is barred by limitation, being a mixed questions of law and fact, would have to be decided in the main suit.
41. More importantly, the possession of the subject land was admittedly handed over by the appellants to the respondent and in Clause(3) of Ex.A1, this aspect is specifically stated.
42. In this view of the matter, we do not find any error of law or fact committed by the Court below in allowing IA.No.1445 of 2019 in OS.No.142 of 2019.
43. Accordingly, this appeal is dismissed. 10
44. It is made clear that the Court below shall decide the suit uninfluenced by any observations made in its order dt.08.01.2020 in IA.No.1445 of 2019 in OS.No.142 of 2019 or in this order passed by this Court. No order as to costs.
45. Consequently, miscellaneous petitions pending, if any, shall stand closed.
__________________________________ M.S.RAMACHANDRA RAO, HACJ _____________________ T.VINOD KUMAR, J 06th September, 2021.
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