G.V. Ramana Reddy vs M/S. Sowbhagyavathi Trust
2021 Latest Caselaw 3466 Tel

                                       1


              THE HON'BLE SRI JUSTICE M.LAXMAN



         CITY CIVIL COUORT APPEAL NO.155 OF 2000

JUDGMENT:

1. The present appeal has been directed against the Judgment

and Decree dated 30.03.1994 in O.S.No.1080 of 1985 on the file of

the III Additional Judge, City Civil Court, Secunderabad, wherein

and whereby, the suit filed by the appellant for specific

performance of oral agreement dated 17.10.1981 was partly

allowed for the relief of refund of earnest money and dismissed the

relief of specific performance of agreement.

2. The appellant is the plaintiff and respondents herein are the

defendants. For the convenience sake, the parties herein are

referred as they are arrayed in the suit.

3. The sum and substance of the case of plaintiff is that there

was an oral agreement between the plaintiff and first defendant

represented by the second defendant for sale of immovable property

to an extent of 400 sq. yards, forming part of plot No.19,

Sy.No.196/3 and 4, situated at Ravindranagar, Sithaphalmandi,

Secunderabad (hereinafter referr4ed to as suit schedule property)

for a sale consideration of Rs.52,000/-. On the date of oral

agreement, an amount of Rs.5,000/- was paid. It was also agreed

that the defendants shall furnish the title deeds of the suit plot i.e.,

no-encumbrance certificate and income tax clearance certificate.

Subsequently, on demand made by the defendants, the plaintiff

paid Rs.18,000/- towards further sale consideration. A receipt was

passed for the payment of Rs.5,000/- as well as Rs.18,000/- under

Exs.A1 and A2.

4. The plaintiff has been demanded the defendants to come

forward to perform their duty and that the defendants have been

trying to alienate the property to the third parties, hence a legal

notice dated 04.10.1983 has been issued to the defendants to

perform their obligation by furnishing required documents and

execute the sale deed. It was also agreed that the balance sale

consideration was payable at the time of registration of the sale

deed. A reply was given by the defendants, stating that they repaid

the advance amount and cancelled the agreement and they denied

receipt of Rs.18,000/- from the plaintiff. The plaintiff further

issued a notice dated 18.11.1984 demanding the defendants to

execute the sale deed and when there was no response from the

defendants, the present suit has been filed.

5. Originally, the suit was filed against the first and second

defendants and subsequently, the third defendant was impleaded.

6. The sum and substance of the case of the first and second

defendants is that first defendant admits that he entered into the

oral agreement dated 17.10.1981 and also the payment of

Rs.5,000/- and denied the receipt of Rs.18,000/- on 17.01.1982.

They also admits that they agreed to produce the no-encumbrance

certificate and income tax clearance certificate. They claimed that

when the plaintiff insisted for no objection certificate from railways,

they expressed their inability and cancelled the agreement and

refunded Rs.5,000/-. They also claimed that the suit is not filed

within the period of limitation.

7. The third defendant filed his written statement. He claimed

that Rs.5,000/- which was paid by the plaintiff to the first and

second defendants was refunded and the agreement was cancelled

and no further amounts were received from the plaintiff by the first

and second defendants. The obligation was not performed on

account of the dispute raised by the plaintiff with the railways and

as such, the agreement was not enforced. It is also pleaded that

the first and second defendants have no power to sell the suit plot

as the third defendant was beneficiary and he is the absolute owner

of the suit plot.

8. The trial Court on the basis of the above pleadings, framed

the following issues and additional issues:-

1. Whether the plaintiff is ready and willing to perform his part of contract ?

2. Whether the plaintiff failed to pay further sum of Rs.18,000/- to defendant No.2 on 07.01.1982 ?

3. Whether the agreement has been cancelled mutually as alleged by defendants ?

4. Whether the plaintiff is entitled to damages of Rs.52,000/-

alternatively ?

5. Whether this suit is barred by limitation ?

6. To what relief ?

Additional Issues:-

1. Whether defendant No.3 is absolute owner of the property and defendant No.2 is not competent to sell the suit plot as such the agreement of sale if any is not binding on the defendant No.3 ?

2. Whether the defendant No.3 received any payments from defendant No.2 towards sale consideration ?

9. The plaintiff himself examined as PW.1 and marked Exs.A1 to

A7. The defendants examined DWs.1 to 4 and marked Exs.B1 to

B4.

10. The trial court after appreciating the evidence on record,

found that the plaintiff established his entering into oral agreement

and rejected the claim of defendants with regard to cancellation of

contract and receipt of Rs.18,000/- on 07.01.1982. Further,

specific performance of contract was refused on the ground that the

defendants could not get no-objection from the railways. Hence,

the present appeal.

11. Heard.

12. The point for consideration is:

"Whether the plaintiff is entitled for specific performance of contract" ?

13. The contention of the counsel for the plaintiff is that the trial

Court having upheld the validity of the agreement, has erred in

denying the specific performance, therefore prayed to allow the

appeal.

14. As seen from the pleadings of the plaintiff, the own admission

of plaintiff shows that at the time of oral agreement, there is no

condition that the defendants 1 and 2 shall produce no objection

certificate from the railways. The only condition was to produce

title deeds, no-encumbrance certificate and income tax clearance

certificate. The additional condition of no objection certificate from

the railways was brought into picture in the legal notice dated

04.10.1984. Putting additional condition is unilateral. It means,

the plaintiff is not satisfied with the title of the defendants as was

projected at the time of entering into the agreement. Putting

additional condition shows that the plaintiff is not ready and willing

to perform his part of contract with the terms and conditions when

the agreement of sale was initially entered between the parties. By

putting additional condition, he unilaterally altered the

performance of contract and when the plaintiff is tried to create

cloud over the title of the defendants by insisting no objection

certificate from the railways and when the defendants unable to get

no objection certificate from the railways, the defendants cannot be

ordered to discharge their obligation as wished by the plaintiff.

This additional condition made the parties not to discharge

obligation under the contract, which they entered at the time of

agreement. When the plaintiff himself is not ready and willing to

perform his part of contract by paying balance consideration, the

primary requirement to enforce the contract has not been

established.

15. The trial Court rightly disallowed the specific performance

and therefore, it requires no interference. The point is answered

accordingly.

16. In the result, the appeal is dismissed. No order as to costs.

The Miscellaneous petitions pending if any shall stand closed.

________________ M.LAXMAN, J Date: 15.11.2021.

Shr.

THE HON'BLE SRI JUSTICE M.LAXMAN

CITY CIVIL COURT APPEAL NO.155 OF 2000

Date: 15.11.2021.

Shr.