THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
APPEAL SUIT No.909 of 2012
JUDGEMENT:
A.S.No.909 of 2012 is filed against the judgment of the trial Court in O.S.No.1244 of 2008 dated 03.09.2012. The facts of the case before the trial Court is that one T.Bhaskar Reddy filed suit against defendants for execution of registered sale deed in his favour regarding plaint B - Schedule property and in the alternative, he requested the Court to execute the registered sale deed in his favour at his cost and also to put him in possession after evicting the defendants from the B- schedule property. Plaintiff stated that he entered into agreement of sale dated 22.07.2005 for a total sale consideration of Rs.9,60,000/- with defendant Nos. 4 to 6 regarding property in Plot bearing No.512, 5th floor, admeasuring 1085 Sq.ft with a common undivided area of 45 Sq. yards at Lingojiguda (V), Saroornagar (M), R.R District. M/s. Sri Sai Prashanthi Constructions/defendant No.6 is represented by defendant Nos. 5 and 6 as Managing Partners.
2. Originally, A-Schedule property belongs to defendant Nos.1 to 3. They executed a registered General Power of Attorney cum agreement of sale in favour of defendant Nos. 4 to 6 after receiving the entire sale consideration and thus defendants 4 to 6 became absolute owners and possessors and they entered into agreement of sale with the plaintiff on 22.07.2005. The defendant Nos. 4 to 6 obtained concerned permission for construction of residential complex with Huda vide proceedings No.8435/P4/H/2001 dated 21.12.2001 and also from L.B.Nagar Municipality vide proceedings No.G1/BP/233/2002 dated 21.08.2002 and started construction of residential complex and offered to sell various flats to the prospective purchasers including the plaintiff.
3. The plaintiff entered into agreement of sale with the defendant Nos.4 to 6 on 22.07.2005 and paid a sum of Rs.2,00,000/- towards the advance sale consideration and agreed to pay balance of Rs.7,60,000/- at the time of registration of sale deed. There was a condition in the agreement of sale that defendant Nos.4 to 6 shall complete the construction work within 12 months from the date of agreement of sale and also to deliver the possession of the same to the plaintiff. But, they stopped the construction work of the B-schedule property and whenever the plaintiff questioned the 2 defendant Nos. 4 to 6, they stated that due to their business inconvenience the construction work was stalled for some time. He requested them to hand over the vacant possession of plaint B-schedule property. They completed the work in the month of September, 2007. When the plaintiff requested them to receive the balance sale consideration and execute a registered sale deed in his favour, they were postponing the matter on one or the other pretext. Hence, Plaintiff sent legal notice dated 22.01.2008 to defendant Nos. 4 to 6 and the same was received by them on 29.01.2008. But, they did not given any reply. Plaintiff was always ready to perform his part of contract and willing to pay the balance of sale consideration. He filed suit for specific performance in July, 2008 requesting the Court to direct the defendants to execute registered sale deed in his favour after receiving the balance of sale consideration.
4. In the Written Statement submitted by the defendant Nos.4 to 6, they stated that admittedly, they entered into agreement of sale on 22.07.2005 and received Rs.2,00,000/- from the plaintiff as advance and he has to pay the balance amount within 12 months from the date of execution of the agreement. But, he failed to pay balance of sale consideration 3 within stipulated period. As such, he cannot enforce the agreement of sale by way of Specific Performance. They have also stated that they alienated all the flats to the purchasers and they are looking after the said complex. But, the plaintiff did not pay balance amount within 12 months. Though, in the legal notice he requested to receive the amount and execute the sale deed within 3 days, he filed suit in September, 2008 and failed to explain the delay. Therefore, they submit that the suit is barred by limitation and is liable to be dismissed.
5. Defendants also filed their written arguments in their favour. They mainly contended that plaintiff failed to prove that he was ready and willing to pay balance amount from issuance of notice dated 22.01.2008 to till the date of filing of the suit i.e, 29.07.2008 as per Section 16(c) of the Specific Relief Act. They further stated that all the flats were sold away between 2005 to 2007 and the purchasers of the flats were formed into an association namely, M/s. Satya Sai Enclave Owners Welfare Association and the same was registered in the year 2007 itself. As the plaintiff is not ready and willing to perform his part of the contract under the said agreement, he is not entitled for specific performance of the agreement of sale.
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6. The trial Court considering the arguments of both sides and also the citations relied upon by them, decreed the suit in favour of the plaintiff and directed the defendant Nos. 4 to 6 to execute the registered sale deed in favour of the plaintiff within two months and the suit against the defendant Nos.1 to 3 was dismissed regarding A and B schedule properties. Aggrieved by the said order defendants in the suit filed an appeal and they mainly filed the appeal on the same ground raised by them before the trial Court. In the trial Court, plaintiff is examined as P.W.1 and marked Ex. A-1 to Ex. A-6 on his behalf i.e, original agreement of sale along with office copy of the legal notice, copies of the acknowledgment and returned covers. Defendant was examined as D.W.1 and filed all the encumbrance certificates of the flat owners in M/s. Satya Sai Enclave from the year 2005 to 2007 and marked as Ex. B-1 to Ex. B-65.
7. The point for consideration is whether the trial Court granted decree in favour of the plaintiff on proper appreciation of the facts and evidence and if so, whether the order of the trial Court is liable to be set aside or not.
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8. Perusal of the agreement of sale dated 22.07.2005, shows that defendant Nos. 4 to 6 executed it in favour of plaintiff. In the said agreement of sale, it was specifically mentioned that the total sale consideration was Rs.9,60,000/-, he paid Rs.2,00,000/- as advance and he shall pay total sale consideration strictly as per the schedule mentioned above and time is essence of the contract. The vendors shall complete the construction of B-schedule property within 12 months from today and on receipt of the total sale consideration from the vendee, vendors shall execute the registered sale deed of the B- schedule property in favour of the vendee. The said provision in the agreement of sale shows that, it is for the defendant Nos.4 to 6 to complete the construction within 12 months from the date of agreement of sale. It is not mentioned anywhere in the agreement of sale that plaintiff has to pay balance of sale consideration within 12 months. Therefore, argument of the defendants that plaintiff failed to pay the balance of sale consideration within 12 months is not tenable.
8. It was brought on record that the construction was stalled and in the meanwhile it was completed within 12 months. The defendants clearly admitted that it was completed in September 6 2007. Though, the plaintiff asked them to hand over the possession, defendants did not respond to his request. As such, he gave legal notice on 22.01.2008 and the same was received on 29.01.2008. But, they did not give any reply. In the said legal notice plaintiff stated that he was ready with the balance amount and requested them to register the flat in his favour within 3 days. But, the defendants neither agreed for it nor denied it. In fact, they did not give any reply to the notice. As such, the plaintiff was compelled to file a suit for specific performance against defendants. Defendants raised objection stated that if the plaintiff was ready with the money as stated in the legal notice, why he has kept quite for eight months to file suit. Defendants have failed to respond to the legal notice of the plaintiff, as such they cannot take the advantage of his mistake and question the plaintiff for non-filing of the suit for eight months. The conduct of the defendants clearly shows that they are trying to protract the litigation. In view of contract, in the process of purchase of flats they are not inclined to register the sale deed in favour of plaintiff and compelled him to approach the Court. Even when the decree was granted in his favour, they preferred appeal and raised the same ground.
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9. Defendants mainly contended that it is for the plaintiff to prove that he was ready to perform his part of the contract in the agreement of sale. Plaintiff clearly stated that he is ready to pay the balance amount. As per the terms of the agreement of sale, defendants failed to complete the construction of flats within 12 months. Even after completion of the construction, they did not issued any notice to the plaintiff, when plaintiff issued notice they did not reply. Even when plaintiff filed suit, they took objection that he is not ready and willing to pay the balance amount and he has not deposited the same in the trial Court. They should have agitated the said aspect and request the Court to direct the plaintiff to deposit the said amount before the Court during the pendency of the proceedings. But, they kept quite. Now, they cannot raise the said objection at the belated stage. It was time and again stated by the Courts that ready and willing does not make that the plaintiff has to keep money in his pocket each and every day to establish his readiness. Plaintiff entered into agreement with the defendants and agreed to pay balance at the time of registration of the sale deed. Even after the completion of the work, he requested the defendants to execute sale deed in his favour. But, they failed to do so. Hence, plaintiff issued legal notice. Even then, they have 8 not responded and objected the filing of suit. Even after obtaining order in his favour, they preferred appeal and raised an objection that plaintiff was not ready and willing, which is not sustainable.
10. The trial Court considering the evidence on record and also the agreement of sale and the citations filed by both the parties, rightly granted decree in favour of the plaintiff and directed the defendant Nos. 4 to 6 to execute the sale deed within two months from the date of Judgment. There is no infirmity in the Judgment of the trial Court and it needs no interference. As the appellants preferred the appeal and delayed the matter for nearly a decade, appeal is dismissed with costs of Rs.10,000/- to the appellants herein and the amount is to be paid within one month from the date of this order.
In the result, this appeal is dismissed confirming the order of the trial Court in O.S.No.1244 of 2008 dated 03.09.2012 and the appellants are directed to pay costs of Rs.10,000/- to the plaintiff in the suit within one month from the date of this order.
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Miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA DATED: 26.10.2022 tri 10 THE HONOURABLE SMT. JUSTICE P.SREE SUDHA APPEAL SUIT No.909 of 2012 DATED: 26.10.2022 TRI 11