Telangana High Court
M/S Name Constructions Pvt Ltd vs Vakiti Ram Reddy on 18 April, 2024
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE DR.JUSTICE G. RADHA RANI
SECOND APPEAL No.190 of 2023
JUDGMENT:
This Second Appeal is filed by the appellant - plaintiff aggrieved by the judgment and decree passed in A.S.No.56 of 2017 dated 07.03.2022 by the learned V Additional District & Sessions Judge, Bhongir confirming the judgment in O.S.No.290 of 2008 dated 03.09.2013 passed by the learned Principal Junior Civil Judge, Bhongir.
2. The plaintiff filed a suit for specific performance of agreement of sale dated 01.09.1992. The plaintiff was a company incorporated under the provisions of the Companies Act, 1956. It was doing business in real estate, development and construction activities. The case of the plaintiff was that the defendant approached the plaintiff company to sell his agricultural land bearing Survey No.542 Part to an extent of Ac.1-30 guntas situated at Kondamadugu Village of Bibinagar Mandal, Nalgonda District. The plaintiff entered into an agreement of sale with the defendant on 01.09.1992 for a total sale consideration of Rs.49,000/- @ Rs.28,000/- per acre. On the date of execution of agreement of sale, the plaintiff paid an advance amount of Rs.20,000/- through a crossed cheque bearing No.310490 dated 01.09.1992 drawn on Syndicate Bank, Picket Branch, Secunderabad towards part payment of the sale 2 Dr.GRR, J sa_190_2023 consideration. The defendant acknowledged the receipt and also issued a separate receipt. The balance amount of sale consideration was required to be paid at the time of execution and registration of the sale deed, which was stipulated to be completed within a period of six months or to be extended further on mutual consent. However, time was not the essence of the contract. On the request of the defendant, the plaintiff paid the balance amount of sale consideration of Rs.29,000/- on 07.09.1992 through a cheque bearing No.330350 drawn on Syndicate Bank, Picket Branch, Secunderabad. The defendant acknowledged the receipt and also issued a separate receipt.
3. As per the sale agreement, the vendor / defendant shall produce Income Tax clearance certificate from the Income Tax Department, so that the Registration Authorities would not object for registering the sale deed in favor of the plaintiff. The vendor / defendant also undertook to pay land revenue, cess and other sums payable for the said land till the date of completion of the sale transaction. The vendor / defendant also undertook to produce documents of title to establish that the vendor had clear and marketable title to the lands agreed to be sold and also promised to produce non-encumbrance certificate, patta, certified copies of pahanies, passbooks, title deeds and other relevant documents to the plaintiff company prior to the execution of registration of document. On payment of entire sale consideration, since September 1992, the plaintiff was demanding the defendant to fulfill the above conditions of 3 Dr.GRR, J sa_190_2023 obtaining Income Tax clearance certificate, production of title deeds and other relevant documents and production of land revenue receipts in token of up-to- date payments of land cess in respect of the suit schedule land. The defendant went on postponing the fulfillment of the said terms of the agreement on one pretext or other. Vexed with the indifferent attitude of the defendant, the plaintiff issued a legal notice to the defendant on 14.06.2008, but the same was returned on 24.06.2008 with an endorsement "out of station". The defendant was avoiding service of notice. The plaintiff apprehended that non-performance of the contract on the part of the defendant was due to rise in the prices of the land rates in and around the suit schedule properties, which was due to the announcement by the Government of Andhra Pradesh for the establishment of Nizam's Institute of Medical Sciences. As the defendant was avoiding to execute the sale deed, left with no other remedy, the plaintiff filed the suit for specific performance and as an alternative relief sought for refund of the amount of Rs.49,000/- with interest @ 18 % per annum from the last date of payment i.e. on 07.09.1992.
4. The defendant received notice, caused appearance, but, due to non-filing of the written statement was set ex-parte.
5. The plaintiff examined himself as PW.1 and got examined another witness, who signed on the agreement of sale and on the receipts as PW.2. He 4 Dr.GRR, J sa_190_2023 got marked the copy of memorandum and articles of Association of his company as Ex.A1, the agreement of sale dated 01.09.1992 as Ex.A2, the receipt dated 01.09.1992 as Ex.A3, the receipt dated 07.11.1992 as Ex.A4, the office copy of the legal notice dated 14.06.2008 as Ex.A5, the returned un- served postal cover as Ex.A6, and the copy of the authorization letter as Ex.A7.
6. The trial court i.e. the learned Principal Junior Civil Judge, Bhongir on considering the evidence on record observed that there were no boundaries of the suit schedule property mentioned in Ex.A2 agreement of sale. Without boundaries, the property is not identifiable and no executable decree could be passed basing on the said document and held that the plaintiff failed to prove that Ex.A2 pertained to the plaint schedule property within the boundaries stated therein. The trial court also observed that the plaintiff failed to prove his "readiness and willingness" in performing his part of the contract and waited till lapse of 16 years for issuing notice to the defendant. As per Ex.A2, the sale should be completed within a period of six months, which could be extended with mutual consent. The period of limitation would start from the date of expiry of the said six months stipulated period that was fixed for performance as per the first limb of Article 54 of the Limitation Act. There was no evidence on record to establish that the six months time was subsequently extended further by mutual consent by both the parties. As such, the suit claim was barred by time. The trial court rejected the contention of the learned counsel for the 5 Dr.GRR, J sa_190_2023 plaintiff that the period of limitation would start running from the date of refusal of the legal notice and observed that Ex.A5 legal notice was not at all served upon the defendant, as the same was returned un-served with an endorsement "7 days absent", which was marked as Ex.A6 and held that it could not be said that the defendant deliberately avoided service, but in fact, there was no service of Ex.A5 legal notice on the defendant. Thus, the trial court dismissed the suit as barred by time and also refused to grant the alternative relief of refund of the amount.
7. Aggrieved by the said dismissal of the suit, the plaintiff preferred an appeal. The appeal was heard by the learned V Additional District & Sessions Judge, Bhongir. Vide judgment and decree dated 07.03.2022, the Appellate Court also confirmed the judgment of the trial court in dismissing the suit. The Appellate Court also observed that on a perusal of Article 54 of the Schedule of the Limitation Act, when no time was fixed for performance of the agreement, the cause of action would accrue on coming to know of the refusal to perform. But the very fact that notice under Ex.A5 was given after 16 years was something which could not be condoned and could not be accepted as a vigilant action on the part of the appellant for seeking the relief and enforcing the rights under Ex.A2. The Appellate Court observed that during the hearing of the appeal, a registered GPA was marked as Ex.A8, but held that the appellant had not explained as to how the said document was relevant to the facts of the case. 6
Dr.GRR, J sa_190_2023 Even if the respondent executed Ex.A8 and empowered the GPA N.Gopal Naidu to sell the suit schedule property when the appellant failed to explain why he did not invoke Ex.A8 and did not get the document registered in his favor instead of filing the suit and seeking the relief from the Court, rejected the claim of the appellant both for the relief of specific performance and also for the relief of refund of the amount purported to be paid by him to the respondent under Exs.A3 and A4. The Appellate Court also imposed costs on the appellant to be paid to the Mandal Legal Services Authority, Bhongir.
8. Aggrieved by the above judgments of the learned Principle Junior Civil Judge dated 03.09.2013 in O.S.No.290 of 2008 and of the learned V Additional District & Sessions Judge in Bhongir in A.S.No.56 of 2017 dated 07.03.2022 confirming the dismissal of the suit filed by him, the plaintiff preferred this Second Appeal raising a substantial question of law that whether the finding of the trial court and the first appellate court that the suit suit was barred by limitation under Article 54 of the Schedule of the Limitation Act was tenable and without considering the evidence adduced by the plaintiff, coming to the conclusion that the case of the defendant was probable would amount to perversity leading to miscarriage of justice.
9. Heard the learned counsel for the appellant on the proposed substantial question of law.
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10. The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well recognized exceptions are: 1) Where the courts below have ignored material evidence or acted on no evidence, 2) The Courts have drawn wrong inferences from the facts by applying the law erroneously or 3) The Courts have wrongly cast burden of proof.
11. The phrase "substantial question of law" as occurring in the amended Section 100 of CPC is not defined in the Code of Civil Procedure. However, the word "substantial", as qualifying question of law, means of having substance esstential, real, of sound worth, important or considerable. It is to be understood as something in contra distinction with technical, of no substance or consequence, or academic merely. A question of law having a material bearing on the decision of the case, a question answer to which affects the rights of the parties to the suit will be a substantial question of law. Where the legal position is clear, either on account of express provisions of law or binding precedents, but the courts below has decided the matter, either ignoring or acting contrary to such legal principle, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question violates the settled position of law. Framing of substantial question of law at the time of admission is a pre-requisite for hearing the Second Appeal. 8
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12. As seen from the facts of the case, both the courts below have dismissed the suit and appeal, as the suit claim was barred by time. As seen from the averments of the plaint, the plaintiff entered into an agreement of sale with the defendant on 01.09.1992 for purchase of an agricultural land bearing Survey No.542 Part to an extent of Ac.1-30 guntas situated at Kondamadugu Village of Bibinagar Mandal, Nalgonda District for a total sale consideration of Rs.49,000/- and paid an advance amount of Rs.20,000/- on the date of agreement of sale itself through a cheque bearing No.310490 and the defendant acknowledged the same vide receipt dated 01.09.1992, marked under Ex.A3. He further stated that he paid the balance amount of Rs.29,000/- on 07.09.1992 i.e. within a week through a cheque bearing No.330350, which was acknowledged by the defendant vide receipt dated 07.11.1992, marked under Ex.A4. But the plaintiff waited for issuance of notice to the defendant till June, 2008. As per the averments of the plaint, he issued the legal notice to the defendant on 14.06.2008 i.e. after a period of 16 years. But the same was also not served on the defendant and it was returned un-served on 24.06.2008 with an endorsement "out of station".
13. Both the trial court and the appellate court considered Article 54 of the Limitation Act, wherein the time for filing the suit for specific performance was prescribed as:
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Dr.GRR, J sa_190_2023 Description Period of limitation Time from which period of Suit begins to run For specific Three years The date fixed for the performance performance, or, if no such of a contract date is fixed, when the plaintiff has notice that performance is refused.
14. Thus, from a reading of the aforesaid Article, it is clear that when the date is fixed for performance, limitation is three years from such date. If no such date is fixed, the period of three years is to be computed from the date when the plaintiff has notice of refusal. The time fixed for performance of the suit is six months, as per the agreement marked under Ex.A2. When the contention of the plaintiff was that he performed his part of the contract and paid the entire amount as agreed under the contract by 07.09.1992 itself, he ought not to have waited for a period of 16 years for issuing the notice. As per his contention itself, he issued the notice on 14.06.2008. The plaintiff had not explained any reason for such inordinate delay of 16 years in issuing the notice. As the agreement would disclose that the time fixed for performance as six months period, then the suit has to be filed within three years from the expiry of 6 months period under the first limb of Article 54 of the Limitation Act, 1963. The suit filed beyond three years was barred by limitation. No extension of time was pleaded and established by the plaintiff. Only in a case where no time for performance was fixed, the Court has to find the date on which the plaintiff 10 Dr.GRR, J sa_190_2023 had notice that the performance was refused. Even when no limitation is prescribed by the statute, the Courts apply the doctrine of delay / latches / acquiescence and non-suit the litigants who approach the Court belatedly without justifiable explanation. In the present case, considering that no justifiable explanation was given by the plaintiff for filing the suit with an ordinate delay of more than 16 years, both the trial court as well as the appellate court dismissed the same. This Court does not find any substantial questions of law involved in deciding the Second Appeal.
15. In the result, the Second Appeal is dismissed at the stage of admission with costs of Rs.10,000/- to be paid to the High Court Legal Services Committee, Hyderabad within a period of one month from the date of receipt of a copy of this judgment.
As a sequel, miscellaneous applications pending in this appeal, if any shall stand closed.
____________________ Dr. G.RADHA RANI, J Date: 18th, April 2024 Nsk.