THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
APPEAL SUIT No.672 of 2010
JUDGMENT:
This appeal suit is filed against the Judgment and decree dated 15.11.2007 in O.S.No.853 of 2007, passed by the learned Principal Senior Civil Judge, R.R.District.
2. The appellant/plaintiff filed a suit vide O.S.No.853 of 2007 against the respondent/defendant seeking specific performance of Agreement of Sale. The trial Court got examined P.W.1 and marked Exs.A1 to A8 on behalf of the plaintiff and the respondent/defendant remained exparte in the suit, but the trial Court observed that appellant/plaintiff prayed for alternative relief to return the amount of Rs.1,00,000/- with interest @ 18% per annum and accordingly decreed the suit directing the respondent/defendant to pay Rs.1,00,000/- to the appellant/plaintiff with future interest @ 6% per annum from the date of suit till realization. Aggrieved by the said Judgment and decree, plaintiff therein preferred the present appeal.
3. The learned Counsel for the appellant/plaintiff contended that the Judgment of the trial Court is erroneous, the respondent/defendant never contested the matter and even 2 after receiving the legal notice, respondent/defendant failed to give reply. He further contended that it is highly impossible for the appellant/plaintiff to own a property for the value of sale consideration as agreed under the sale agreement in view of steep escalation of real estate prices. Therefore, awarding of alternative relief is liable to be set aside.
4. The appellant herein contended that respondent was the absolute owner and possessor of a residential flat bearing No.405 (A - Block) in Third Floor of Sashank residency consisting of super built-up area of 850 Sq.ft including common area along with undivided land share of 25 Sq.yrds out of 1090 Sq.yrds, constructed on plot No.62 in Sy.No.359/1 & 359/3 situated at Sardar Patel Nagar, Moula-Ali under Malkajgiri Municipality, Ranga Reddy District. The respondent/defendant due to his personal necessities offered to sell the suit schedule property for a total sale consideration of Rs.6,50,000/- and the same was accepted by him. He paid a sum of Rs.1,00,000/- i.e., Rs.95,000/- through cheque bearing No.505905 dated 01.11.2006 and Rs.5,000/- by way of cash to the respondent/defendant on 30.10.2006 towards part sale consideration. The respondent/defendant entered into an Agreement of Sale with him on 01.11.2006 and also 3 acknowledged the said part sale consideration under a separate receipt on the same day. The appellant/plaintiff agreed to pay the balance sale consideration of Rs.5,50,000/- within a period of 90 days i.e., by 29.01.2007. Thereafter, appellant tried to reach the respondent over telephone, but respondent was avoiding the same. Hence, he got issued legal notice on 23.01.2007, but it was returned with an endorsement "Not claimed". As he was ready and willing to perform his part of contract, he filed the suit for specific performance.
5. Appellant filed the Agreement of Sale under Ex.A1, Ex.A2 was the receipt issued by the respondent for receiving Rs.1,00,000/- by way of cheque and cash, and the remaining balance was agreed to be paid within three months. Ex.A3 was the legal notice issued by the appellant on 23.01.2007, in which he mentioned that appellant approached the respondent with balance sale consideration of Rs.5,50,000/- on 07.01.2007 and requested him to clear the bank loan as agreed under clause-3 of the agreement and to execute the registered sale deed, but the defendant postponed the same on one or other pretext and failed to perform his part of obligation and appellant was always ready to perform his part of obligation, but the said notice was returned with an endorsement "Not claimed". Appellant had also 4 filed his bank statement under Ex.A8 to show the payment of Rs.95,000/- to the respondent.
6. Appellant/plaintiff was examined as P.W.1 and he reiterated the contents of the plaint in his evidence. Notices were served upon the respondent/defendant and an Advocate also filed Vakalat on his behalf, but he has not filed written statement, as such the respondent/defendant was set exparte on 25.10.2007, and after recording the evidence of P.W.1, Judgment was passed by the trial Court. The appellant herein filed the suit for specific performance of Agreement of Sale. He had also filed the said Agreement of Sale in support of his contention and apart from that he had filed Ex.A2 receipt issued by the respondent. As per the agreement, the balance amount has to be paid within three months. In the legal notice, it was specifically mentioned that appellant/plaintiff approached the respondent/defendant with the balance sale consideration and requested him to clear the bank loan, but he postponed the same on one or other pretext, as such appellant filed the suit for specific performance and in view of the oral and documentary evidence, he proved his case, but the trial Court somehow mentioned that there was alternative relief for return of Rs.1,00,000/- with interest and accordingly directed the 5 respondent/defendant to return Rs.1,00,000/- without decreeing the suit for specific performance. The Judgment of the trial Court is patently erroneous. The respondent/defendant in spite of engaging the Counsel, remained exparte and not even filed written statement even after granting sufficient opportunity and it clearly shows that he avoided contesting the matter willfully, but the trial Court instead of granting the main relief for specific performance of Agreement of Sale, granted alternative relief. Therefore, this Court finds it is just and reasonable to set aside the Judgment of the trial Court.
7. In the result, the appeal suit is allowed, setting aside the Judgment and decree dated 15.11.2007 in O.S.No.853 of 2007 passed by the trial Court and the respondent is directed to execute the registered sale deed in favour of the appellant by receiving the balance sale consideration within one month from the date of receipt of a copy of this Judgment. If he fails to do so, appellant is at liberty to approach the Court for execution of the sale deed in his favour. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA DATE: 02.11.2023 tri 6 THE HONOURABLE SMT. JUSTICE P.SREE SUDHA APPEAL SUIT No.672 of 2010 DATE: 02.11.2023 TRI