HONOURABLE SMT. JUSTICE P.SREE SUDHA
C.C.C.A.No. 94 of 2018
JUDGMENT:
This appeal, under Section 96 Order LXI Rule 1 of C.P.C., is filed by the unsuccessful defendant assailing the judgment and decree passed in O.S.No.57 of 2013, dated 14.12.2017, on the file of the I-Additional Chief Judge, City Civil Court, Secunderabad.
Appellant herein is defendant and respondent herein is plaintiff in the suit. The parties shall hereinafter be referred to as plaintiff and defendant as arrayed in the suit.
The facts that led to the filing of the present appeal, succinctly, are as follows:
The plaintiff and his elder brother i.e., defendant jointly purchased the suit schedule property admeasuring 56 square yards situated in H.No.9-2-87 (Old No.5868), Regimental Bazar, Secunderabad, under a registered sale deed bearing No.491/1993 of SRO, Marredpally and 2 constructed ground floor and first floor and that they partitioned the same vide registered Partition Deed No.2916/1990 of SRO, Marredpally. As per the said Partition Deed, the plaintiff is the owner of the ground floor and the defendant is the owner of the first floor with an undivided share of 28 square yards each with all common areas, fixtures and fittings. It is the case of the plaintiff that due to personal necessities, the defendant offered to sell his first floor portion to the plaintiff for a sale consideration of Rs.11,50,000/- and that the plaintiff agreed to purchase the said property and paid advance sale consideration of Rs.1,00,000/- and as such the defendant executed an agreement of sale on 10.05.2012 in favour of the plaintiff agreeing to execute the registered sale deed, within three months from the date of said agreement of sale, and that the plaintiff shall pay the balance sale consideration of Rs.10,50,000/- to the defendant at the time of registration of the sale deed. It is further stated that when the plaintiff 3 approached the defendant to pay the balance sale consideration of Rs.10,50,000/- by way of Demand Draft bearing No..289348 dated 09.08.2012, drawn on Syndicate Bank, Rajbhavan road, Hyderabad, the defendant stated that he will execute the sale deed on 13.08.2012. Accordingly, the plaintiff paid amounts for stamp duty and registration charges vide Demand Draft No.145661 drawn on Syndicate Bank, S.D. Road Branch, Hyderabad, in favour of SRO, Marredpally, however, the defendant neither turned up for execution of sale deed nor informed further date of execution of sale deed. Thereafter, the plaintiff issued a legal notice on 13.03.2013 to the office and residential address of the defendant requesting him to execute the registered sale deed in respect of the suit schedule property in his favour by receiving the balance sale consideration, however, the notice sent to the residential address of the defendant was refused. Hence, the plaintiff filed the suit for specific performance of 4 contract dated 10.05.2012 directing the defendant to execute a registered sale deed in his favour in respect of the first floor of H.No.9-2-87 (Old No.5868), Regimental Bazar, Secunderabad, together with undivided share of land admeasuring 28 square yards in the said property, by receiving balance sale consideration, and to deliver physical possession of the property, failing which a registered sale deed may be executed on behalf of the defendant in favour of the plaintiff through Court.
The defendant filed his written statement denying all the material allegations averred in the plaint. It is stated that due to some strained relations with the plaintiff's family members, the defendant shifted his residence to a rented premises and tried to let-out the suit schedule property, but the family members of the plaintiff did not allow any tenant to stay in the premises. It is further stated that on the intervention of elders, the matter has been settled and the defendant agreed to sell his share i.e., suit 5 schedule property to the plaintiff for an amount of Rs.11,50,000/- even though the market value of the property was around Rs.13,00,000/- and that the defendant entered into an agreement of sale dated 10.05.2012 with the plaintiff after receiving advance sale consideration of Rs.1,00,000/- from him. It is further stated that on 13.08.2012, the defendant and his family members except one son who is staying at abroad came to the concerned registration office for execution of sale deed and stayed there till late hours, but the plaintiff did not turn up on the pretext that No Objection from all the family members including the son of the defendant, who is residing at abroad, was not obtained for the proposed sale. It is further stated that since the suit schedule property was self acquired property of the defendant, none of the family members including his son, who is staying at abroad had any right or interest in the suit schedule property and, therefore, No Objection Certificate is not necessary. In fact, even though the defendant is ready 6 and willing to execute the registered sale deed in respect of the property after receiving the balance sale consideration, the plaintiff failed to perform his part of contract and hence he is not entitled to any relief and as such the suit is liable to be dismissed.
During trial, on behalf of the plaintiff, P.Ws.1 and 2 were examined and got marked Exs.A-1 to A-12. On behalf of the defendants, D.Ws.1 and 2 were examined and no document was marked.
The trial Court, after considering the entire evidence available on record and also the submissions made by the learned Counsel appearing on either side, decreed the suit of the plaintiff with a direction to the defendant to execute a registered sale deed in favour of the plaintiff in respect of the suit schedule property by receiving the balance sale consideration amount within two months from the date of judgment, failing which due process of law will be initiated. 7
Aggrieved by the aforesaid judgment and decree of the trial Court, the present appeal has been preferred by defendant, inter alia, contending that the trial Court erred in passing a decree without considering Ex.P6-Letter of Loan sanctioned by Syndicate Bank to the plaintiff, in proper perspective. It is contended that the trial Court failed to see that as per the evidence of P.Ws.1 and 2, it is evident that neither the defendant was having any prior notice of fixing the date of registration on 13.08.2012 by the plaintiff nor the defendant had given any assurance to the plaintiff that he would execute the sale deed on the said date. It is further contended that the trial Court has failed to appreciate the fact that entire plaint is based upon the alleged assurance of the defendant that he agreed to execute the sale deed on 13.08.2012 and the plaintiff has failed to prove the said plea and, therefore, the suit is liable to be dismissed as the plaintiff failed to complete the sale transaction within the time stipulated. It is further contended that the trial Court 8 has not taken judicial notice of events after the impugned suit agreement was executed (i) formation of New State of Telangana (ii) conversion of existing Secunderabad railway station to International Standards etc., and non-availability of independent houses in the vicinity of the suit property for purchase and sale etc., It is further contended that the trial Court failed to pay attention to the fact that during trial, the plaintiff had vacated the ground floor of the suit property and was looking for a prospective buyer, developer or builder, who would give or deposit the balance amount than the plaintiff would have to deposit, as he is getting the suit property at a very low price. Therefore, he requested the Court to allow the appeal by setting aside the judgment and decree under appeal.
Heard the learned Counsel appearing on either side and perused the entire material placed on record. 9
The plaintiff, who was examined as P.W1, filed his chief-examination-affidavit reiterating the contents raised in the plaint. In the cross-examination, he stated that EX.B1 is the Xerox copy of sale deed dated 15.03.1983 under which he along with the defendant jointly purchased the suit schedule house premises and both of them jointly constructed ground floor and first floor of the building; that under Ex.A2-Partition Deed dated 28.11.1990, they partitioned the suit schedule property and the ground floor of the suit schedule property was allotted to the share of the plaintiff, whereas first floor was allotted to the share of the defendant and that after seven years of construction of the house, misunderstandings arose between them. He admitted in his cross-examination that the defendant locked his first floor portion of the suit schedule house and started living separately in a rented house. He denied the suggestion that when the defendant tried to let out his first floor, he caused inconvenience to him and his tenants. He 10 stated that one Ajay and Anjan Kumar were mediated between him and the defendant and at their instance the defendant agreed to sell his share of first floor in his favour under Ex.A1-agreement of sale dated 10.05.2012 and three months time was stipulated for payment of sale consideration. He admitted that he did not give any written notice stating that he is ready to pay the balance sale consideration and obtain a registered sale deed as per the terms of Ex.A1, however, he orally informed the defendant through a mediator. He denied the suggestion that the suit schedule house is self-acquired property of himself and the defendant. He denied the suggestion that in spite of the defendant's readiness to execute the registered sale deed in terms of Ex.A1, he committed breach of terms and conditions of Ex.A1. He admitted that a Demand Draft for a sum of Rs.10,50,000/- has been handed over to the defendant. He further admitted that he sent a notice to the defendant in the year 2013, whereas the agreement of sale 11 was in the year 2012. He denied the suggestion that even though the defendant along with his family members were very much present at the Sub Registrar's Office, he did not perform his part of contract. He stated that the Demand Draft obtained for the purpose of payment of balance sale consideration has been cancelled by him and he did not issue any notice to the defendant prior to cancellation of the Demand Draft and that the suit schedule house fetches monthly rent of Rs.3,000/- . He stated in his further cross- examination that on 13.08.2012 he has shown the Demand Draft to the defendant at Sub Registrar's office; that one Sreenu and Radhika were not present at the Registrar's office, but the remaining family members of the defendant were present and that since Sreenu and Radhika were not present at the Registrar's office, the sale deed was not executed on that day.
12
One of the attesting witness to Ex.A1-agreement of sale was examined as P.W.2 and he supported the version of P.W.1 in all material particulars.
The defendant, who was examined as D.W.1, stated in his evidence that after purchase of the property in question, he along with the plaintiff obtained MCH permission in February, 1990 and demolished the entire old structures and reconstructed the building comprising ground floor and first floor in equal extent with equal rights in the land area of the building. As per Ex.A2-Partition Deed, he became the absolute owner of the first floor with equal rights in the land area of the building and there was a single water and drainage line to the house and the same was used by both the parties; that there was one common bore-well on the rear side of the ground floor; that the water from single line was collected by his family members in small drums and the same was pumped to the first floor. He also stated that 13 in 2005, the plaintiff along with his family members shifted to a rented premises at Dayanand Nagar, Malkajgiri, Secunderabad and he intend to sell his house including his property without his consent and also gave an advertisement in Deccan Chronicle Newspaper dated 16.10.2005 and that he refused to sell his portion of property. Later, the plaintiff had occupied his ground-floor portion and started picking up quarrels with them on petty issues. He further stated that since the family members of the plaintiff used to harass his family members, they were constrained to leave their own house i.e., suit schedule property and residing in a rented house i.e., H.No.11-2- 465/1, Namalagundu, Secunderabad, and thereafter he tried to lease out the house to other persons. But, the plaintiff and his family members used to threaten the proposed tenants and did not allow him to give the house on lease. He further stated that at the intervention of elders, the matter was pacified and he entered into an agreement of 14 sale with the plaintiff, after receiving an amount of Rs.1,00,000/- towards advance sale consideration, on 10.05.2012, in respect of the suit schedule property for a total sale consideration of Rs.11,50,000/- and that as per the agreement of sale, the defendant has to execute the registered sale deed on or before 10.08.2012 after receipt of balance sale consideration. D.W.1 further stated that the plaintiff neither contacted him nor his family members with regard to fixing of date for registration of sale deed till 10.08.2012. However, on the instructions of plaintiff through mediators' viz., Ajay Kumar and Anjan Kumar, the defendant along with his family members were present in the Registration Office on 13.08.2012 for executing the proposed sale deed, but the plaintiff did not evince any interest to pay the balance sale consideration and hence the sale deed could not be executed. In the cross-examination, he denied the suggestion that the plaintiff was ready with the balance sale consideration vide Demand Draft bearing 15 No.289348 dated 09.08.2012. He admitted in his cross- examination that he had vacated the suit schedule house as it is too small to accommodate the growing number of family members and as such he has taken a separate portion for rent. He further admitted that he has not issued any notice to comply with the terms of agreement of sale or cancelling the agreement of sale and that he denied the suggestion that since the plaintiff has not violated any terms of agreement, he has not issued any legal notice to the plaintiff. He further stated that he is not ready to execute the sale deed even if the plaintiff deposits the Government value of the suit schedule property before the Court.
One A.Ajay Kumar, who acted as a mediator between the parties, was examined as D.W.2 and he stated in his evidence that the plaintiff has agreed to purchase the suit schedule property by obtaining bank loan and that the plaintiff has deposited the sale consideration along with the registration charges on the name of the defendant by way of 16 Banker's Deed. He denied the suggestion that the registration was not done as the family members of the defendant fail to appear before the Registration Office. He stated that he does not know whether the plaintiff has received any notice under Section 459 of HMC Act on 10.06.2017 asking him to vacate the premises as it is in a dilapidated condition.
The Point that arises for consideration is whether there is any infirmity or illegality in the judgment of the trial Court warranting interference of this Court with the findings recorded by it ?
Admittedly, the plaintiff and defendant being the natural brothers jointly purchased the suit schedule property under Ex,B1-registered sale deed dated 15.03.1983 and after obtaining municipal permission they demolished the old structures and reconstructed the entire building comprising of ground floor and first floor in equal extent 17 with equal rights in the land area of the building and thereafter they got partitioned the property under EX.A2- Partition Deed dated 28.11.1990. As per the Partition Deed, the plaintiff is the owner of the ground floor and defendant is the owner of the first floor together with the undivided share of 28 square yards. It is also admitted by the parties that they were living in their respective floors being the absolute owners quite for some time and when differences arose between them, the defendant offered to sell his first floor portion to the plaintiff for a total sale consideration of Rs.11,50,000/- and the plaintiff agreed to purchase the same and as such the defendant executed an agreement of sale, after receiving advance sale consideration of Rs.1,00,000/- from the plaintiff, on 10.05.2012 in favour of the plaintiff with a condition to complete the sale transaction within three months on or before 10.08.2012. The contention of the plaintiff is that even though he is ready and willing to perform his part of contract, the defendant did not come 18 forward to execute the registered sale deed and as such he filed the suit for specific performance of contract.
No doubt, in a suit for specific performance, the continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances.
Admittedly, the plaintiff is an employee of Syndicate Bank. From a perusal of the evidence of plaintiff (P.W.1), it is evident that pursuant to Ex.A1-agreement of sale deed, the plaintiff has applied for housing loan on 21.06.2012 for Rs.12.00 lakhs and the Syndicate Bank, Jeera Compound 19 Branch, Secunderabad, sanctioned an amount of Rs.8.05 lakhs under Ex.A6-Letter of Sanction dated 28.07.2012 and that he got prepared Ex.A10-Demand Draft bearing No.289348 dated 09.08.2012 drawn on Syndicate Bank, Rajbhavan Road, Hyderaabad, for an amount of Rs.10,50,000/- to be paid to the defendant towards balance of sale consideration. According to the evidence of P.W.1, since the defendant agreed to execute the registered sale deed on 13.08.2012, he along with his family members and P.W.2 went to the Sub Registrar's Office and paid an amount of Rs.61,800/- for stamp duty and registration charges vide Ex.A11-Demand Draft bearing No.145661 drawn on Syndicate Bank, S.D. Road Branch, Hyderabad, in favour of SRO, Marredpally, however, the defendant neither turned up for execution of sale deed nor informed further date of execution of sale deed. P.W.2, who is one of the attesting witness to Ex.A1-agreement of sale, has also supported the evidence of P.W.1 in all material aspects. He 20 stated that he has intimated the defendant about the readiness of the plaintiff to perform his part of contract, but the defendant did not execute the sale deed in favour of the plaintiff.
According to the evidence of the defendant (D.W.1), on the instructions of plaintiff through mediators viz., Ajay Kumar and Anjan Kumar, he along with his family members except his son by name Srinivas, who is at USA and who gave GPA to act on his behalf, were present in the Registration Office on 13.08.2012 for executing the sale deed, but the plaintiff did not evince any interest to pay the balance sale consideration and hence the sale deed could not be executed. From the admissions of D.W.1 regarding the family disputes and the offers from third parties for purchase of the suit schedule property at higher price than the price agreed with the plaintiff, it can be safely inferred that the defendant did not evince any interest to sell his property to the plaintiff. The defendant as D.W.1 in his 21 cross-examination admitted that he is not ready to execute the sale deed even if the plaintiff deposits the Government value of the suit schedule property before the Court. He further admitted that he has not issued any notice to comply with the terms of agreement of sale or cancelling the agreement of sale. From this, it is evident that the plaintiff has not violated any terms of agreement. Admittedly, the defendant did not file any suit for cancellation of Ex.A1- agreement of sale.
Therefore, the aforesaid evidence on record leaves no scope for doubt that the plaintiff had always been ready and willing to perform his part of the contract and even got prepared the demand draft and issued legal notice to the defendant for completion of formalities, whereas the defendant did not pay heed to his requests. The finding of the trial Court that the plaintiff was ready and willing to perform his part of contract shows the bona fides of the 22 plaintiff. The trial Court had rightly decreed the suit for specific performance of contract.
In view of the foregoing discussion, this Court finds no ground warranting interference with the findings recorded by the trial Court and the appeal deserves to be dismissed.
In the result, the appeal is dismissed, confirming the judgment and decree, dated 14.12.2017 passed in O.S.No.57 of 2013 on the file of the I-Additional Chief Judge, City Civil Court, Secunderabad. There shall be no order as to costs.
Miscellaneous petitions, if any, pending, shall stand closed.
________________________ JUSTICE P.SREE SUDHA 06.01.2023 Gsn.