Tatiparthi Narsi Reddy vs Tatiparthi Jayarami Reddy
2023 Latest Caselaw 281 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

               SECOND APPEAL No.1483 of 2018

JUDGMENT:

Having lost his defence in the two Courts below, the

defendant in a suit for specific performance preferred this

second appeal under Section 100 C.P.C. questioning the

correctness of the judgments of the Courts below. Respondent

herein is the plaintiff.

2. There is a partnership firm called as Sri Anjaneya

Enterprises consisting of three partners. All three partners are

cousins to one another. One of the partners in his individual

capacity with reference to his own private transaction filed

O.S.No.253 of 2004 as against another partner, who is his own

cousin. The suit was filed before learned Principal Junior Civil

Judge, Narasaraopet on the premise that the defendant being

owner of plaint schedule property offered it for sale and the

plaintiff agreed to purchase it. The agreed sale consideration

was Rs.25,000/- and the entire sale consideration was paid by

the plaintiff to the defendant and to this effect defendant

executed an agreement for sale dated 31.05.1990. The property

that was agreed to be transacted was in fact under a mortgage

with Andhra Bank Chilakaluripet and the loan was raised by

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the partnership firm referred above. In the agreement for sale it

is agreed upon between parties that the defendant should

discharge the mortgage debt and thereafter execute registered

sale deed in favour of the plaintiff at the expenses of plaintiff.

For a long time defendant failed to discharge the debt and failed

to get the property relieved of from the mortgage. In those

circumstances, the plaintiff and the other partner together paid

the entire debt to Andhra Bank on 30.03.2001 and got the

property discharged from the mortgage. Since the defendant,

who is the other partner in the firm, was not contributing his

share of the money to repay the debt, it was only plaintiff and

the other partner discharged the debt and to get back for

recovery of share that was supposed to be contributed by the

defendant, the other two partners filed O.S.No.45 of 2001 before

the same Court as against the present suit defendant.

Subsequent thereto, plaintiff got issued a legal notice dated

26.04.2001 demanding the defendant to come forward and

execute the registered sale deed. Denying the version of the

plaintiff, the defendant got issued a reply notice dated

07.05.2001. In this reply notice, the defendant denied the

entire transaction of agreement for sale and thereby refused to

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concede to the request made by the plaintiff. Thereafter,

plaintiff presented his plaint on 27.04.2004 and the suit was

instituted and the defendant was summoned.

3. Raising a contest defendant filed his written statement

and denied the entire case set up in the plaint. He denied

receipt of Rs.25,000/- towards full sale consideration and

denied execution of agreement for sale. It is then stated that

this defendant entrusted Rs.5,50,000/- to the plaintiff and the

other partner and when he was demanding for repayment of it,

they created a web of false story and filed false suit O.S.No.45 of

2001 and they also filed a criminal case in C.C.No.25 of 1999

and filed the present suit for specific performance. In his

written statement defendant denied about mortgage debt with

Andhra Bank. At para No.3 defendant alleged that the plaintiff

as well as the defendant are chronic litigants. It is pleaded that

plaintiff came to the Court with unclean hands and no one

would have paid the entire sale consideration without taking

possession of the property. The stamp paper on which the

projected agreement for sale is prepared itself indicates the

falsity of the case. For all these reasons he sought for dismissal

of the suit.

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4. Learned trial Court took the suit for trial on the following

issues:

1) Whether the suit agreement of sale dt.31.5.90 is true, valid and binding on the defendant?

2) Whether the plaintiff is entitled for specific performance of agreement of sale dt.31.5.90 as prayed for?

3) To what relief?

5. Plaintiff testified as PW.1 and one of the attestors and the

scribe of agreement for sale deposed as PW.2 and PW.3

respectively. The agreement for sale is Ex.A.1. The rest of the

documents in Ex.A.2 to Ex.A.6 are the correspondence between

the parties. Defendant testified as DW.1. The other suit for

recovery of money and the criminal case in which he was made

an accused at the hands of the plaintiff are sought to be

sustained through Exs.B.1 to B.4 documents. After hearing the

arguments and after considering the entire evidence, the

learned trial Court found established the case of the plaintiff

and observed that Ex.A.1-agreement for sale is true and genuine

and is a valid transaction and the evidence of PW.1 found full

support from two neutral and independent witnesses, who

witnessed the transaction and preparation of Ex.A.1 in the form

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of PWs.2 and 3 and it was found that between PWs.2 and 3 on

one hand and the defendant on the other hand there were no

disputes at all. Therefore, learned trial Court agreed with the

case set up by the plaintiff. All the contentions raised by the

defendant in his written statement were addressed and the

learned trial Court recorded a finding that the defendant was

not truthful and was changing his version from time to time and

his version could not be believed and his evidence did not raise

any probabilities to discard the evidence led by plaintiff. It was

in those circumstances, it decreed the suit directing the

defendant to execute registered sale deed in favour of the

plaintiff within three months from the date of decree.

6. Dissatisfied defendant appealed to learned XIII Additional

District Judge, Narasaraopet in A.S.No.281 of 2010. He

contended there that in the context of bitter enmity between

parties, Ex.A.1-agreement for sale should have been disbelieved

and there was utter failure on part of plaintiff in filing the suit

at least soon after their filing of O.S.No.45 of 2001 and the

agreement is of the year 1990, but the stamp paper on which it

was prepared was of the year 1986 and the plaintiff refused to

have Ex.A.1 examined by handwriting expert. It is also stated

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that under Ex.B.2 in the year 1995 he had already sold out the

property but the trial Court failed to give proper decision in that

regard despite of the pitfalls in the case, the learned trial Court

decreed the suit and that error shall be rectified in the appeal.

Both sides went into contest and argued the matter and the

learned first appellate Court went into all the details of evidence

independently and on all the aspects it recorded its approval for

the findings rendered by the trial Court. Answering the

contention of the defendant about his alienation of suit

schedule property under Ex.B.2 in the year 1995, the learned

first appellate Court stated that in Tirumalasetty Santhamma

v. Enuganti Venkaiah1, it was held that in a suit for specific

performance the vendor was precluded from pleading absence of

title. The Courts below in fact recorded an observation that the

alleged sale under Ex.B.2 was never pleaded by the defendant in

his written statement. While dealing with the aspect of non-

filing of the suit soon after 2001, the learned trial Court stated

that parties to the litigation are cousins and did business in

partnership firm and traded with tobacco and there was nothing

2013 (6) ALT 664

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positive that remained to be done by the plaintiff and in those

circumstances, lapse of some amount of time has absolutely no

relevance. It observed that the enmity projected between the

parties was only since 1997 and Ex.A.1-agreement for sale is of

the year 1990 and by the evidence of DW.1 it was made more

clear that by the time of Ex.A.1 the relationship between the

parties to the agreement was very cordial. It was in those

circumstances, all the contentions raised in the appeal were

found to be without merit. The learned first appellate Court

dismissed the appeal and confirmed the judgment that decreed

the suit for specific performance passed by the learned trial

Court.

7. On 06.01.2022 a learned Judge of this Court admitted

this second appeal on the following substantial questions of law:

1. Whether the suit filed in 2004 for specific performance of agreement of sale dated 31.05.1990 could be decreed when the same was initiated beyond reasonable time?

2. Whether the Courts below are justified in decreeing the suit for specific performance when the plaintiff failed to prove his continuous readiness and willingness to perform his part of

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the contract as required under Section 16(c) of the Specific Relief Act?

8. Arguing on the above points, learned counsel for

appellant challenged the correctness of judgments of both the

Courts below, which passed a judgment despite the fact that

there was long lapse of time between the agreement for sale and

filing of the suit. It is also argued that as per the evidence on

record, plaintiff was never ready and willing to perform his part

of the contract and there was failure of Courts below in

considering that aspect.

9. Learned counsel for appellant cited Kolli

Satyanarayana v. Valuripalli Kesava Rao Chowdary 2. That

was also a case of suit for specific performance. Finally,

judgment was that in the facts and circumstances the

plaintiff/intending purchaser was entitled for refund of money

and not entitled for registration of sale deed. In that case the

advance sale consideration paid was Rs.15,000/-. Finally their

Lordships directed the executant of the agreement to pay

Rs.15,00,000/- to the plaintiff. It was hundred times more than

2022 (6) ALD 119 (SC)

Dr. VRKS, J S.A.No.1483 of 2018

what was received by the executant of the

agreement/defendant. The facts of that case indicates certain

serious time limits prescribed between parties whereunder the

owner of the property agreed to obtain permission for sale from

Urban Land Ceiling Authorities within that particular time and

failing which certain conditions were prescribed. Similarly,

plaintiff was to pay the entire balance sale consideration of

about Rs.30,315/- within particular time limits failing which

the amount stood forfeited. There were mutual obligations

recorded between the parties and forfeiture of the contract itself

is one of the terms. It was in the context of such complex terms

between parties, looking at the conduct of both sides and after

deep analysis of the evidence, their Lordships found that the

owner of the property having sent a letter to the plaintiff

cancelling the agreement and refunding the balance sale

consideration should have been the time at which plaintiff

ought to have commenced his suit and he did not do it and

thereafter for two years he remained silent and only then he

filed the suit. On analyzing the terms of the contract between

parties, their Lordships refused to grant specific performance.

At para No.12, their Lordships reiterated the law stating that

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time limits prescribed in the agreement for sale should not be

ignored even if it is considered that time is not the essence of

the contract.

10. Learned counsel for respondent submits that all the

disputed facts were tested on evidence and the two Courts

below concurrently decided those facts and it is only on those

facts this Court shall proceed and decide the substantial

questions of law and the facts established naturally resulted in

decreeing the suit appropriately and there is no merit in this

appeal. The precedent cited has absolutely no occasion for the

facts on record and is not relevant for consideration in this case

since in the case at hand there are no time limits prescribed in

Ex.A.1-agreement for sale and finally learned counsel sought for

dismissal of the appeal.

11. Ex.A.1-agreement for sale is dated 31.05.1990. It is

prepared on one sheet of paper, which is on a stamp of

Rs.100/-. It is unregistered and it is non-possessory. The

stamp paper shows that it was purchased by the plaintiff on

11.06.1986. About use of a stamp that was four years old

contest emanated before the Courts below and on evidence it

was found that the plaintiff intended to purchase a Cinema

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Theatre and for that purpose he wanted to have an agreement

and in that regard he purchased that stamp on 11.06.1986, but

that transaction did not go further and the stamp remained

unused and therefore, he preserved it and when the occasion

arose for the deal between him and the defendant he used it. It

was on that evidence both the Courts below held that to have an

unregistered agreement for sale prepared there was no rule that

it should be on a stamp that was purchased on the date when

the agreement was executed. They further held that nothing

was brought to their notice that a stamp that was four years old

could never be used, under law, for preparation of an

unregistered agreement for sale. Added to it, one may also

record that if really someone wanted to create a false agreement

for sale concerning immovable property one would have

normally used a latest purchased stamp paper instead of an old

one. Moreover, when the agreement itself shows that it was

executed in the year 1990 one could not say that such a date is

either ante-dated or post-dated. Therefore, nothing turns on

the date on which stamp paper was purchased while deciding a

suit for specific performance.

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12. Ex.A.1 was executed by the defendant. A reading of it

indicates that he received the entire sale consideration of

Rs.25,000/- from the plaintiff. It further mentions that the

property bargained was under mortgage with Andhra Bank and

the appellant wrote his promise that he would discharge the

debt and then he would register the sale deed in favour of the

plaintiff and then put the plaintiff in possession of the property.

It is in the context of this mortgage there is a clear recital in this

agreement executed by the defendant that time has no relevance

for this bargain between them and as and when he discharged

the debt and released the property from mortgage, he would

execute the registered sale deed. In the suit and in the first

appeal both the Courts held that this appellant denied

execution of this document, but its execution is proved by virtue

of evidence of PW.1, and the evidence of attestor/PW.2 and the

evidence of scribe/PW.3. The signatures of appellant as

available on his vakalat and as available on his written

statement were compared by both the Courts below in terms of

Section 73 of the Indian Evidence Act and they found that they

did not find any variation between those set of signatures as

against the signature available on Ex.A.1. The Courts below also

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recorded that this appellant was prone to speak all lies as he

denied his own signatures on Ex.A.3-postal acknowledgment.

They said that Ex.A.3-postal acknowledgment pertains to

Ex.A.2-notice received by the defendant. Having received that

notice only the defendant issued Ex.A.6-reply notice. Learned

first appellate Court made it on record that while cross-

examining DW.1, he was asked about offering Ex.A.1-agreement

for sale for handwriting expert for his opinion and he did not

agree or disagree with that proposal and said that he would

consult his counsel and would take a decision. Thereafter at

the fag end of the trial he seemingly made an attempt to have

this document examined by an expert, but what he did was he

did not produce any contemporary signatures of him. It was in

those circumstances, his application was dismissed by the trial

Court. The purport of this discussion on part of the Courts

below do indicate the sincere efforts of plaintiff and evasive

nature of the appellant.

13. While the agreement is dated 31.05.1990, the suit was

filed in the year 2004. It is on this aspect, learned counsel for

appellant submits that the suit was not initiated within

reasonable time. Be it noted that it is not a contention

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concerning limitation as prescribed by the Limitation Act, but it

is a contention based on theory of laches. As is clear, Ex.A.1

has no stipulation of time lines. On the other hand, defendant

himself made it clear that one should not think about time and

he would discharge the debt and then only he would execute the

registered sale deed. Be it noted, it is not his case that he ever

discharged the debt and ever got the property relieved of

mortgage. The respondent/plaintiff after waiting for a decade

took upon himself and he along with his another partner

discharged the debt and sued the defendant for recovery of his

portion of liability by filing O.S.No.45 of 2001. On evidence

Courts below recorded that plaintiff and another partner

discharged the debt on 30.03.2001. Thus, it was from

31.03.2001 there was every possibility for the defendant to

execute the registered sale deed. He did not do it. He did not

serve any notice to the plaintiff concerning Ex.A.1-agreement for

sale. He did not refund Rs.25,000/- which he received towards

total sale consideration. He did nothing. On discharge of

mortgage debt the obligation was on the shoulders of the

defendant and not on the shoulders of the plaintiff. As per the

terms of Ex.A.1, plaintiff is not in possession of the property

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and has no title over the property and he has parted with the

entire sale consideration and the defendant while owning and

possessing the property is also keeping in his pocket the entire

sale consideration. Thus, what was there with the plaintiff was

only anxiety. Therefore, soon after discharge of debt on

30.03.2001 he served a notice on the defendant under Ex.A.2

dated 26.04.2001. Till the time he issued such notice, the

defendant by his words spoken, by his words written or by his

conduct ever gave out any suspicion to the plaintiff about any

breach of Ex.A.1-agreement for sale. The refusal on part of

defendant was intimated by the defendant by his reply notice

dated 07.05.2001/Ex.A.6. From that date within three years

the suit was filed and it was filed precisely on 27.04.2004. Why

it was not filed soon after exchange of notices is the only

question that is raised in this appeal. The doctrine of laches

apply on equitable considerations and whether someone's

conduct suffers from such laches is to be inferred from the

totality of facts and circumstances. Here is a case where the

plaintiff and defendant bargained the property for Rs.25,000/-

and the plaintiff had paid the whole of it. Then he had to pay

loan money in discharge of mortgage debt and had to sue this

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very appellant for his contribution. Thus, more money was

expended by him. First he thought of suing this appellant for

refund of that contribution money because that is related to

partnership business. It is only thereafter he made his own

assessment and went for filing the suit. When there was nothing

more positive that was required to be performed on part of the

plaintiff, it was rightly recorded by both the Courts below that

the readiness and willingness of plaintiff is always visible. Some

delay between notices and institution of suit is understandable

because the defendant himself has mentioned in his written

statement that he is a chronic litigant. As one could see from

Ex.B.1 there was already a criminal case between parties. In

the light of these inhibiting factors, one would not venture to

rush to Court for another set of litigation. Forbearance on part

of respondent/plaintiff cannot be called as lapse on his part. It

is in the context of all the facts and circumstances when the

contention of appellant is considered, this Court finds that there

is no merit in this contention and both the Courts below

properly appreciated all the facts and circumstances and

reached to accurate conclusions. Because the plaintiff has to

plead and prove that he has been ready and willing to perform

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his own part of the contract, it is easier for the man holding

obligation under Ex.A.1 to say that the intending purchaser is

not ready and willing. The pleadings and the evidence and

findings of the Courts below are categorical in showing that the

plaintiff was never lacking in his readiness and willingness. In

fact before the Courts below this appellant, with a view to

sustain his theory of plaintiff not being ready and willing, raised

a contention that the plaintiff had no capacity to purchase this

property. Learned trial Court observed that on evidence it was

already proved that the full sale consideration was paid and

further the plaintiff was in trade of tobacco and therefore, such

small amount could never be considered as not within the

competence of plaintiff. This Court has nothing to discard. On

a total reading of the entire record, it has to be recorded that

both the Courts below considered only the evidence and nothing

beyond evidence and reached to most logical conclusions and

the approach adopted is in accordance with law. The ruling

cited for the appellant in the context of the terms of Ex.A.1 and

the established findings of facts would show that he could not

take any help from such ruling. For all these reasons, this

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Court records that both the substantial questions raised here

are without any merit and they are held against the appellant.

14. In the result, this Second Appeal is dismissed. There

shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 20.01.2023 Ivd

Dr. VRKS, J S.A.No.1483 of 2018

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

SECOND APPEAL No.1483 of 2018

Date: 20.01.2023

Ivd