M/S. Visistha Infra Developers vs Nalli Durga Rao
2021 Latest Caselaw 2080 Tel

     HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
                                      AND
        HONOURABLE SRI JUSTICE T.VINOD KUMAR

              Civil Miscellaneous Appeal No.256 of 2021

JUDGMENT: (Per Hon'ble Sri Justice M.S. Ramachandra Rao)

       This Civil Miscellaneous Appeal is preferred against the order

dt.24.03.2021 passed in Interlocutory Application No.44 of 2021 in

Original Suit No.12 of 2021 on the file of V Additional District Judge,

Bhongir.


2.     The appellant herein is plaintiff in the above suit.

The case of the appellant/plaintiff


3.     The said suit was filed by respondent against the appellant for

specific performance of an Agreement of Sale - Ex.P.1 -

dt.04.08.2019 executed in favour of appellant by respondent agreeing

to sell the plaint schedule property of Acs.8.9 gts. to appellant for

Rs.3,29,00,000/-. According to appellant, he had paid Rs.42.50 lakhs

on different dates between 06.02.2019 and 10.07.2019 and the balance

consideration of Rs.2,86,50,000/- remained to be paid, and it was

agreed between the parties that the said amount has to be paid within

one year from the date of execution of Ex.P.1 - Agreement of Sale.

4. The appellant further contended that several times he had

conveyed its readiness to pay the balance consideration and requested

the respondent to execute the Sale Deed after receiving the said ::2::

MSR,J & TVK,J cma_256_2021

balance consideration, but he did not come forward to do so.

Thereafter, the appellant gave Ex.P.2 - Legal Notice dt.15.01.2021 on

15.01.2021, which was received by respondent, and a reply was got

sent by respondent under Ex.P.4 dt.27.01.2021 styled as 'letter of

request' wherein the respondent denied the execution of Ex.P.1 and

called upon the appellant to furnish an attested Xerox copy of Ex.P.1.

Interlocutory Application No.44 of 2021

5. Along with the suit, the appellant filed Interlocutory

Application No.44 of 2021 under Order XXXIX Rules 1 and 2 of

Civil Procedure Code, 1908 and sought an ad interim injunction

restraining respondent from alienating the suit schedule property in

any manner or from creating third-party interest therein. He reiterated

the contents of the plaint in the said application.

The stand of the respondent

6. Counter-affidavit was filed by respondent in Interlocutory

Application No.44 of 2021 opposing grant of ad interim relief to the

appellant.

7. The respondent denied that he needed money and he offered to

sell the suit schedule property to the appellant and that he had

executed Ex.P.1 - Agreement of Sale dt.04.08.2019. He alleged that

he had also sold Ac.5.00 of land under Ex.R.1 dt.26.07.2017 and also

an extent of Ac.0.39 gts. through another registered Sale Deed Ex.R.2

dt.26.07.2017 in favour of Kondal Reddy and Srinivasulu Reddy, and ::3::

MSR,J & TVK,J cma_256_2021

therefore, there was no question of any Agreement of Sale being

executed by him in favour of appellant.

8. He admitted that he received Rs.26.40 lakhs from the appellant,

but not Rs.42.50 lakhs as is alleged by the appellant.

9. According to him, the said amount was received by him for

another transaction. He alleged that the appellant had created / forged

Ex.P.1 and tried to take undue advantage of the amounts paid by the

respondent relating to the other transaction which has nothing to do

with the suit schedule property. He contended that he has only

Acs.3.10 gts. left after selling Acs.5.19 gts. under Exs.R.1 and R.2 and

he could not have received any consideration from the appellant for an

extent of Acs.8.9 gts.

10. He denied receipt of cash payment of Rs.10 lakhs and Rs.5

lakhs, and stated that there is a ceiling on payment of more than Rs.2

lakhs in cash, and the receipts have also been created by the appellant

by forging his signatures.

11. He contended that he had issued a letter of request on

27.01.2021 through his Counsel demanding the appellant to furnish

copies of Exs.P.1 and the receipts, but he did not furnish the said

documents to his counsel. He also contended that partners of the

appellant on 05.01.2021 attacked the respondent at his residence and

caused him physical injuries for which he lodged a police complaint at

the Jubilee Hills, Police Station.

::4::

MSR,J & TVK,J cma_256_2021

The order of the court below

12. Before the Court below, the appellant marked Exs.P.1 to P.7,

and respondent marked Ex.R.1 and R.2.

13. By order dt.24.03.2021 the Court below dismissed Interlocutory

Application No.44 of 2021 observing that since under Exs.R.1 and

R2, the respondent had already sold Acs.5.29 gts. to third-parties, it is

difficult to believe that the respondent had entered into Ex.P.1

Agreement with the appellant agreeing to sell 'A' to 'C' Schedule

property to it. It also relied on the fact that the counsel for appellant

did not supply copy of Ex.P.1 to respondent in order to enable the

respondent to give reply to the suit notice, Ex.P.2.

The instant CMA

14. Assailing the same, the present Appeal is filed.

15. Heard Sri K. Durga Prasad, counsel for appellant, and Sri P.

Sashidhar Reddy, counsel for respondent.

16. The counsel for appellant contended that the property sold

under Exs.R.1 and R.2 have different survey numbers, that the plaint

schedule property has Sy.No.s 136/AA2 and 137/AA1, but the

properties which are sold under Exs.R.1 and R.2 have Sy.No.s

136/AA2/1 and Sy.No.137/A1/A; in the Caveat filed by the

respondent he has admitted that he owned land only in

Sy.No.s.136/AA2 and 137/AA1; that respondent did not state that he

owned land in Sy.No. No.136/AA2/1 and 137/A1/A and the story set ::5::

MSR,J & TVK,J cma_256_2021

up by respondent that he had sold out of Acs.8.9 gts. and Acs.5.29 gts.

under Exs.R.1 and R.2, therefore, cannot be accepted.

17. A specific question was put to the counsel for respondent as to

how the respondent could have sold the land in Sy.No.s

No.136/AA2/1 and 137/A1/A, which are not stated in the Caveat filed

by him in this CMA as belonging to him. There was no satisfactory

answer from the counsel for the said respondent.

18. This discrepancy in Sy.No.s mentioned in Exs.R.1 and R.2 with

those mentioned in the plaint does not appear to have been noticed by

the Court below, and it presumed erroneously that a portion of plaint

schedule land was sold by respondent to third parties, which does not

appear to be true.

19. We may also point out that in the counter-affidavit filed in

Interlocutory Application No.44 of 2021, the respondent failed to give

the Sy.No.s of the land sold under Exs.R.1 and R.2.

20. Both Counsel agreed that Sy.No.136/AA2/1 is a sub-division of

Sy.No.136/AA2 and that Sy.No.137/AA1 would certainly be a

different parcel of land to that in Sy.No.137/A1/A.

21. It appears that prima facie the respondent wished to mislead

the Court that the land covered by those Sale Deeds is same as the

subject matter of the suit, though it appears to be not so. In this view

of the matter, we do not accept the plea of respondent that he had ::6::

MSR,J & TVK,J cma_256_2021

already sold off a portion of the plaint schedule property under

Exs.R.1 and R.2 to third parties.

22. We may also point out that he had admitted receipt of a sum of

Rs.26.40 lakhs from the appellant allegedly for a different transaction,

but he did not chose to mention what is the nature of that transaction.

Having received substantial consideration, it is not open to respondent

to attempt to breach the promise of selling the suit schedule property

to appellant and selling it to some third party.

23. In our opinion, the Court below did not properly consider the

material record, and therefore, its decision is vitiated.

24. Accordingly, the Civil Miscellaneous Appeal is allowed; the

order dt.24.03.2021 passed in Interlocutory Application No.44 of

2021 in Original Suit No.12 of 2021 on the file of V Additional

District Judge, Bhongir is set aside; and Interlocutory Application

No.44 of 2021 in Original Suit No.12 of 2021 on the file of V

Additional District Judge, Bhongir is allowed with costs.

25. Pending miscellaneous petitions, if any, in this appeal shall also

stand dismissed.

___________________________ M.S.RAMACHANDRA RAO, J

____________________ T. VINOD KUMAR, J Date: 13.07.2020 Ndr