Andhra Pradesh High Court - Amravati
K. Ranga Prasad Varma vs Kotikalapudi Sitarama Murthy on 19 August, 2024
APHC010056562008
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
MONDAY ,THE NINETEENTH DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
FIRST APPEAL NO: 439/2008
Between:
1. K. RANGA PRASAD VARMA, S/O SURYANARAYANA RAJU
BUSINESS R/O D.NO.913-47/8, DELIGHT, FLAT NO.1,
C.B.M.COMPOUND,
...APPELLANT
AND
1. KOTIKALAPUDI SITARAMA MURTHY, S/O LATE NARASIMHA
MURTHY RTD.EXECUTIVE ENGINEER (RLYS.), PORT TRUST R/O
D.NO.4-66-2, LAWSON'S BAY COLONY, VISAKHAPATNAM
2. KOTIKALAPUDI AGNIHOTRA SARMA, S/O LATE NARASIMHA
MURTHY DIRECTOR, M/S. RAJESWARI PLASTICS PVT.LTD.
PHOOL CHOWK, RAIPUR, M.P., PIN NO.490001
...RESPONDENT(S):
Appeal against the Decree and Judgment made in O.S.No.27 of 1998
dated 14-6-2004 on the file of the I Addl. District Judge,Visakhapatnam
IA NO: 1 OF 2005(ASMP 670 OF 2005
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
condone the delay of 172 days occurred in filing the present appeal against
the Judgment and decree dated 14-6-2004 in O.S.No.27 of 1998 on the file of
the I Addl. District Judge,Visakhapatnam
IA NO: 2 OF 2005(ASMP 1097 OF 2005
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
stay all further proceedings in E.P.No.3 of 2005 in O.S.No.27 of 1998 on the
file of the I Additional District Judge, Visakhapatnam, pending disposal of the
appeal, and pass such other order or orders as this Hon'ble Court may deem
fit and proper.
Counsel for the Appellant:
1. M/S INDUS LAW FIRM
Counsel for the Respondent(S):
1. P SRI RAGHU RAM
The Court made the following:
Judgment:
The appeal is filed against the judgment and decree dated 14-6-2004
passed by the learned I Additional District Judge, Visakhapatnam,
in O.S.No.27 of 1998 to the extent of awarding costs in favour of the
defendants. The suit is filed for the relief of specific performance of an oral
agreement of sale in respect of suit schedule vacant site and for permanent
injunction restraining the defendants 1 and 2 from interfering with the plaintiff's
permissive possession of the suit schedule site and for costs.
2. The case of the plaintiff as narrated in the plaint, in brief, is as
follows:
(a) It is pleaded that the plaintiff is a builder of repute in and around
Visakhapatnam and he is doing apartments constructions business.
The defendants 1 and 2 are brothers and owners of the plaint schedule
vacant site having succeeded to the same on the death of their father.
The 2nd defendant is a permanent resident of Raipur. The 1st defendant,
who is the elder brother, is representing the family. He was the head of the
family, held deliberations with the plaintiff for the sale of the schedule property,
in the presence of a mediator by name N. Appala Naidu.
(b) It is further pleaded that the defendants offered to sell the suit
schedule property for a total consideration of Rs.8,38,800/- i.e. at the rate of
Rs.1,800/- per square yard. The plaintiff agreed for the same. In pursuance
of the discussions, the plaintiff made a payment of Rs.10,000/- as advance on
11-10-1997 at 12.00 Noon for auspicious reasons and the 1st defendant
having received the same, executed a receipt dated 11-10-1997 mentioning
inter alia the location and extent of the site and also agreed rate per square
yard. The said receipt was attested by the witness. At that time, the
1st defendant made the plaintiff to believe that he as an elder brother would
convince his younger brother, the 2nd defendant, to execute a sale deed in
favour of the plaintiff, after receiving the balance of sale consideration.
The 1st defendant also promised to obtain encumbrance certificate, legal heir
certificate and clearance certificate from Urban Land Ceiling Authorities with
related link documents by the time of visit of the 2 nd defendant to
Visakhapatnam, so as to enable them to execute a sale deed in favour of the
plaintiff or his nominee by January, 1998.
(c) It is further pleaded that subsequently during December, 1997 when
there were encroachments into the suit schedule site, the 1st defendant
intimated the same to the plaintiff and requested to get the encroachers
evicted, cleaned, level and demarcate the property and thus had given
permissive possession of the suit schedule property to the plaintiff.
The plaintiff got cleaned and leveled the suit schedule property and erected
cement poles by expending Rs.8,150/- under a receipt dated 07-01-1998
issued by the contractor who did the work.
(d) It is further pleaded that the plaintiff having secured the balance of
sale consideration, called upon the defendants during pongal season to
intimate their convenient date for executing a registered sale deed and at that
time, expressed readiness and willingness to perform his part of the contract.
At that time, the defendants turned adamant and hostile and began avoiding
the plaintiff. The plaintiff got issued a registered notice dated 27-01-1998 to
the 1st defendant. The defendants did not issue any reply. Then the plaintiff
got made a paper publication in Eenadu Telugu Daily dated 28-01-1998.
On 25-02-1998, the defendants made hectic efforts to dispossess the plaintiff
from the suit schedule site. Hence, the suit.
3. Brief averments in the written statement filed by the 1st defendant are
as follows:
(a) It is contended that the 1st defendant never approached the plaintiff.
There was never any mediation by any person, much less Appala Naidu.
The plaint schedule property is the self acquired property of late Narasimha
Murthy, father of the defendants. He died intestate leaving behind him three
sons, including defendants 1 and 2 and two daughters. All the five children of
the said Narasimha Murthy are having equal rights in the schedule property.
They are living separately and are not members of a joint family.
(b) It is further contended that the 1st defendant has no right to dispose
of the property on behalf of the other co-owners. The 1st defendant never
approached the plaintiff nor did he have any discussions with the plaintiff
representing the other co-owners. The plaintiff approached the 1st defendant
and expressed his desire to purchase the property. The 1st defendant clearly
informed that he is not the sole owner and that he has two brothers and
sisters who are also having equal share in the suit schedule property.
The plaintiff convinced the 1st defendant and paid an amount of Rs.10,000/-
as a token payment, subject to an understanding and further it was agreed
that in case the other co-owners do not agree to sell their shares, the token
advance will be returned to the plaintiff without interest.
(c) It is further contended that the 1st defendant never expressed that
he will convince the other family members to sell their shares. The plaintiff did
not approach the other co-owners to convince them. The other co-owners
had no knowledge of the discussions between the 1st defendant and the
plaintiff. The plaintiff failed to perform his part of contract in approaching and
convincing other family members. The contract, if any, between the
1st defendant and the plaintiff is unenforceable and not binding on the 1 st
defendant and other co-owners.
(d) It is further contended that in view of the facts mentioned, the
1st defendant deposited an amount of Rs.10,000/-, which was received from
the plaintiff into court by challan bearing No.988, dated 03-02-1999. It is
impossible to perform the contract. There is no cause of action. The suit is
not maintainable. Hence, the suit may be dismissed with costs.
4. Brief averments in the written statement filed by the 2nd defendant are
as follows:
(a) He denied all the plaint allegations. The suit schedule property
belonged to late K. Narasimha Murthy, father of the defendants and three
others. After the intestate death of the said Narasimha Murthy on 19-8-1991,
all the said three brothers and two sisters succeeded to the property.
He denied the allegations about discussion for sale of suit schedule property
between the plaintiff and the 1st defendant in the presence of a mediator
K. Appala Naidu. The 2nd defendant is not aware of the representation, if any,
of the 1st defendant. He denied the fixation of price and the payment of
advance of Rs.10,000/- on 11-10-1997 at 12.00 Noon as mentioned in the
plaint. The 1st defendant never intimated the 2nd defendant about the sale of
joint property. Any such oral agreement of sale does not bind the
2nd defendant and other co-owners. The alleged receipt dated 11-10-1997 is
not binding on the 2nd defendant. The 2nd defendant never made any hectic
efforts to alienate the property and never brought third parties to the suit site
and never tried to forcibly dispossess the plaintiff. The plaintiff is never in
possession of the suit schedule site. The suit is speculative one and is not
maintainable. There is no cause of action. The plaintiff is not entitled to claim
any reliefs. The suit is frivolous and vexatious one. The suit is bad for
non-joinder of the other co-owners. Hence, the suit may be dismissed with
exemplary costs.
5. Based upon the pleadings of both the parties, the trial Court framed
the following issues for trial:
(1) Whether the receipt dated 11-10-1997 is true, valid and binding on
the defendants ?
(2) Whether there is enforceable contract in between the plaintiff and
defendants ?
(3) Whether the receipt dated 07-01-1998 is true, valid and binding on
the defendants ?
(4) Whether the plaintiff is entitled for specific performance of contract
as prayed for ?
(5) Whether the plaintiff is entitled for an injunction as prayed for ?
(6) Whether the suit is bad for non-joinder of necessary parties ?
(7) Whether the plaint schedule is incorrect as pleaded in the written
statement ?
(8) Whether the suit is not maintainable under law ?
(9) Whether the 2nd defendant is entitled for exemplary costs as
pleaded in the written statement ? and
(10) To what relief ?
6. During the course of trial, on behalf of the plaintiff, P.Ws.1 to 3 are
examined and Exs.A-1 to A-10 are marked. On behalf of the defendants,
D.Ws.1 and 2 are examined and no documentary evidence is adduced on
their behalf.
7. After completion of the trial and hearing the arguments of both sides,
the trial Court dismissed the suit with costs, holding that the plaintiff is not
entitled to a direction to the defendants 1 and 2 to execute a sale deed in
favour of the plaintiff in respect of the suit schedule property after receiving
balance of sale consideration and further that the plaintiff is not entitled to
specific performance of oral agreement of sale and also permanent injunction
as prayed for.
8. Heard Sri K. Guna Sekhar, learned counsel for the appellant/plaintiff,
and Ms. V. Aasritha, learned counsel, representing on behalf of Sri P. Sri
Raghu Ram, learned Senior Counsel for the 1st respondent/1st defendant.
9. The learned counsel for the appellant/plaintiff would contend that the
judgment and decree passed by the learned I Additional District Judge,
Visakhapatnam, to the extent of awarding of costs in favour of the
1st respondent/1st defendant is contrary to law. He would further contend that
the 1st respondent having received Rs.10,000/- towards advance agreeing to
sell the suit schedule property, he is not entitled to recover any costs from the
appellant. He would further contend that the judgment and decree passed by
the learned trial Judge in awarding suit costs to the defendants is contrary to
law. The learned counsel for the appellant fairly conceded during the course
of arguments that the present appeal is concerned with regard to awarding
costs to the defendants from the plaintiff and there is no need to decide other
aspects which are decided by the Court below.
10. Now, the points for determination are:
(1) Whether the trial Court is justified in awarding suit costs to the
respondents/defendants ? and
(2) To what extent ?
11. Point No.1: Whether the trial Court is justified in awarding suit costs
to the respondents/defendants ?
The undisputed facts are that the appellant/plaintiff is a builder and the
suit schedule property is a vacant site property originally belongs to late
K. Narasimha Murthy and he died intestate on 19-8-1991 leaving behind him
K.K. Malviya (eldest son), defendants 1 and 2 and two daughters by name
B. Kasturi Bai and B. Vijaya Lakshmi. It is also an admitted fact by both the
parties that the father of defendants by name K. Narasimha Murthy died
intestate and after his death, the suit schedule property devolved upon the
three brothers and two sisters, who are also co-owners of the suit schedule
property. The plaintiff is claiming the relief of specific performance of
agreement of sale. Admittedly, there is no written agreement in between the
plaintiff and the defendants. It is an admitted fact by both the parties that
there was an oral agreement in between the plaintiff and the 1st defendant.
The legal position in this regard is no more res integra. The law is well settled
that the grant of decree of specific performance of agreement of sale is not
an automatic and it is a discretionary relief, the same is required to be
exercised judiciously, sound and reasonably. In a suit for specific
performance of agreement of sale, the Court has to see the totality of the
circumstances, conduct of the parties and respective interests under the
contract while granting/refusing such relief.
12. As stated supra, the agreement of sale is an oral agreement of sale.
There is no written agreement in between the plaintiff and the defendants.
Moreover, the recitals of Ex.A-1 receipt dated 11-10-1997 go to show about
the intention of purchase of the suit schedule property site by the plaintiff from
the 1st defendant and he received advance amount of Rs.10,000/- from the
plaintiff. The same is not at all disputed by the 1st respondent. Ex.A-1 receipt
is not at all disputed by the 1st respondent/1st defendant. The receipt of
advance amount of Rs.10,000/- under Ex.A-1 is not at all disputed by the
1st defendant, who is a signatory in Ex.A-1. Admittedly, Ex.A-1 does not bear
the signatures of 2nd respondent/2nd defendant. The particulars of area of
extent and rate per square yard are clearly mentioned in Ex.A-1. As stated
supra, the said receipt is not at all disputed by the 1st defendant. Furthermore,
as stated supra, the 1st defendant is not having absolute rights in the plaint
schedule property. The contention of the 1st defendant is that the suit
schedule property originally belongs to his father late K. Narasimha Murthy
and he died intestate on 19-8-1991 by leaving behind the three sons and two
daughters and the defendants 1 and 2 are the 2nd and 3rd sons of the
deceased K. Narasimha Murthy. In such a case, the 1st defendant ought to
have refused to receive the advance amount of Rs.10,000/- from the plaintiff.
Admittedly, as per the case of 1st defendant, i.e. pleadings in the written
statement of 1st defendant, he is not absolute owner of the plaint schedule
property and he is a co-owner of the plaint schedule property. Ex.A-2 goes to
show that the appellant/plaintiff incurred an expenditure of Rs.8,150/- towards
jungle clearance, site leveling and erection of RCC poles. The same is proved
by the plaintiff through P.W.3. Exs.A-7 to A-10 photographs also support the
same. Ex.A-3 goes to show that on 27-01-1998, the plaintiff issued a
registered legal notice to the 1st defendant and copy of the said legal notice is
also marked to the 2nd defendant, who is the 2nd respondent in the appeal
proceedings. Exs.A-4 and A-5 go to show that both the defendants 1 and 2
received the said registered notice. Furthermore, Ex.A-6 goes to show that on
28-01-1998, a publication was given by the plaintiff in Eenadu Telugu Daily in
respect of the alleged oral agreement transaction.
13. As per the case of the appellant/plaintiff, the total admitted sale
consideration is Rs.8,38,800/- and he paid only paltry amount of Rs.10,000/-,
he has to pay the remaining balance amount of Rs.8,28,800/-. In a suit for
specific performance of agreement of sale, law is very well clear that the
plaintiff must prove his readiness and willingness to perform his part of the
contract all through, right from the date of contract till the date of filing of the
suit. Admittedly, to show his bona fides, the appellant/plaintiff did not deposit
the alleged remaining balance sale consideration of Rs.8,28,800/- which is
a huge amount in the Court below in those days in the year 1997 way back at
about 27 years ago. To show his bona fides, the appellant failed to deposit
the remaining balance sale consideration of Rs.8,28,800/-. As stated supra, a
paltry amount of Rs.10,000/- is only paid to the 1st defendant. Though the suit
is dismissed by the learned trial Judge, the plaintiff has not sought any relief of
specific performance of agreement of sale in the present appeal proceedings.
14. In the case on hand, having known the fact that the 1st respondent/
1st defendant is not the absolute owner of the plaint schedule property, the
appellant entered into oral agreement of sale with the 1st defendant and paid
advance amount, the 1st defendant having knowledge of the same though he
is not an absolute owner of the plaint schedule property, received the advance
amount of Rs.10,000/- on 11-10-1997 without any protest from the appellant
/plaintiff. Therefore, there are laches on the part of both sides. It was pleaded
by the 1st defendant in the written statement that he deposited an amount of
Rs.10,000/- which was received from the plaintiff as advance sale
consideration on 03-02-1999 by way of a challan before the Court below,
in view of impossible to perform his part of the contract.
15. As stated supra, there are so many laches on the part of the plaintiff
and 1st defendant. Admittedly, the alleged original agreement of sale is in
between the plaintiff and 1st defendant. The suit is also filed against the
2nd defendant. The 2nd defendant received the legal notice and kept quiet.
To deny the allegations in the legal notice Ex.A-3 issued by the plaintiff,
no reply was given by the 2nd defendant. If at all defendants 1 and 2 are
disputing the contents in Ex.A-3 legal notice, they ought to have given reply by
stating that the contents in Ex.A-3 legal notice are false. Admittedly, no reply
notice was given by the 2nd defendant to the plaintiff by stating that he is no
way connected with the suit transaction. It is a fact that both the defendants
are not illiterates and they are high officials and they are also highly educated.
It is an admitted fact that the plaintiff incurred an expenditure of Rs.8,150/-
towards jungle clearance, site leveling and erection of RCC poles and he also
engaged an advocate to issue Ex.A-3 legal notice and also gave paper
publication in Eenadu Telugu Daily by informing the oral agreement of sale to
general public. It is a fact that the appellant/plaintiff paid court fee of
Rs.10,937/- in the year 1998 way back about 26 years ago, in those days,
it is a very huge amount. As noticed supra, the plaintiff incurred more
expenditure prior to institution of the suit against the defendants. No doubt,
the defendants also engaged an advocate to defend their case in the suit
proceedings before the trial Court. As noticed supra, there are laches on the
part of both the plaintiff and defendants. Therefore, it cannot be said that the
case on hand is false and frivolous suit.
16. The learned counsel for the 1st respondent placed reliance on
a judgment of the Apex Court in Vinod Seth v. Devinder Bajaj 1. In that
decision, the Apex Court held as follows:
"48. The provision for costs is intended to achieve the following goals:
(a) It should act as a deterrent to vexatious, frivolous and speculative
litigations or defences. The spectre of being made liable to pay actual costs
should be such, as to make every litigant think twice before putting forth
a vexatious, frivolous or speculative claim or defence.
(b) Costs should ensure that the provisions of the Code, the Evidence Act
and other laws governing procedure are scrupulously and strictly complied
with and that parties do not adopt delaying tactics or mislead the court.
(c) Costs should provide adequate indemnity to the successful litigant for
the expenditure incurred by him for the litigation. This necessitates the award
of actual costs of litigation as contrasted from nominal or fixed or unrealistic
costs.
(d) The provision for costs should be an incentive for each litigant to adopt
alternative dispute resolution (ADR) processes and arrive at a settlement
before the trial commences in most of the cases. In many other jurisdictions,
in view of the existence of appropriate and adequate provisions for costs, the
litigants are persuaded to settle nearly 90% of the civil suits before they come
up to trial.
(e) The provisions relating to costs should not however obstruct access to
courts and justice. Under no circumstances the costs should be a deterrent,
to a citizen with a genuine or bona fide claim, or to any person belonging to
the weaker sections whose rights have been affected, from approaching the
courts.
At present these goals are sought to be achieved mainly by Sections 35, 35-A
and 35-B read with the relevant civil rules of practice relating to taxing of
costs."
17. In the case of Jayakantham v. Abaykumar2, the Apex Court held
as follows:
1
(2010) 8 SCC 1
"11. In our view the material which has been placed on record indicates that
the terms of the contract, the conduct of parties at the time of entering into the
agreement and circumstances under which the contract was entered into
gave the plaintiff an unfair advantage over the defendants. These
circumstances make it inequitable to enforce specific performance."
18. In the case on hand, there are so many laches on the part of the
respondents/defendants. Having knowledge that he is not absolute owner of
the plaint schedule property, the 1st respondent/1st defendant received
an amount of Rs.10,000/- on 11-10-1997. After filing of the suit and before
filing of the written statement, he deposited the said amount before the Court
below in the year 1999, it is not at all disputed the same by the plaintiff.
Therefore, the conduct of the parties has to take place a vital role. As stated
supra, there are so many laches on the part of both the parties in the suit,
those laches cannot be ruled out. The laches on the part of the
respondents/defendants cannot be thrown out. As noticed supra, the conduct
of the parties has to be taken into consideration. The 1st respondent/
1st defendant being a highly educated person, though he is not having
absolute rights in the plaint schedule property, received an advance amount of
Rs.10,000/- in the year 1997 and again he deposited the same in the year
1999 before the Court below during the pendency of the suit proceedings.
As noticed supra, the 2nd respondent/2nd defendant being a highly educated
person, having received the notice and kept quiet and he did not choose to
give any reply to the plaintiff to deny the contents in Ex.A-3 legal notice.
In such a case, it is not proper for the Court below to award suit costs to the
respondents/defendants.
19. It is an admitted fact that the appellant/plaintiff has not claimed
refund of advance amount of Rs.10,000/-. The law is well settled that since
the plaintiff has not sought alternative relief of refund of advance amount, he is
not entitled to the alternative relief of refund of advance amount. Therefore,
the advance amount of Rs.10,000/- paid by the plaintiff is forfeited. No doubt,
2
(2017) 5 SCC 178
the 2nd defendant has not received any advance amount but he faced the
litigation before the Court below having no fault of him, except non-issuance of
reply notice to the plaintiff. Therefore, both the defendants are entitled to
receive the said amount of Rs.10,000/- which was deposited by the
1st defendant from the court below. There is no need to interfere with the
finding of the trial Court in dismissing the suit by the trial Court. The present
appeal is filed against the finding of awarding of suit costs by the trial Court to
the defendants. As stated supra, since the defendants are not entitled to the
suit costs, the appeal has to be allowed by setting aside the order of the trial
Court in awarding suit costs to the defendants.
20. Point No.2:- To what extent ?
In the result, the appeal suit is allowed by setting aside the finding of the
trial Court to award suit costs to the defendants. Pending applications, if any,
shall stand closed. Each party do bear their own costs in the appeal.
VENUTHURUMALLI GOPALA KRISHNA RAO,J
To,
1. KOTIKALAPUDI SITARAMA MURTHY, S/O LATE NARASIMHA
MURTHY RTD.EXECUTIVE ENGINEER (RLYS.), PORT TRUST R/O
D.NO.4-66-2, LAWSON'S BAY COLONY, VISAKHAPATNAM
2. KOTIKALAPUDI AGNIHOTRA SARMA, S/O LATE NARASIMHA
MURTHY DIRECTOR, M/S. RAJESWARI PLASTICS PVT.LTD.
PHOOL CHOWK, RAIPUR, M.P., PIN NO.490001
3. Two CD Copies
HIGH COURT
VGKRJ
DATED:19/08/2024
ORDER
