Chintala Vijayalaxmi vs S.Ramesh Another
2021 Latest Caselaw 2884 Tel

            THE HONOURABLE JUSTICE G. SRI DEVI

                      APPEAL SUIT No.1902 of 2003

JUDGMENT:

The 2nd defendant in Original Suit No.120 of 1995 on the file of

the Principal Senior Civil Judge, Ranga Reddy District (for short,

"the trial Court"), preferred this appeal challenging the judgment

and decree passed in the said Suit, dated 30.06.2003, whereby the

suit filed by the plaintiff for specific performance of contract of sale

dated 13.04.1994 in respect of land admeasuring 680 square yards

forming part of 1280 square yards in Plot No.9 in Sy.No.129/1 of

Kothapet Village, Uppal Mandal, Rangareddy District, was decreed.

Appellant herein is the 2nd defendant, 1st respondent herein is

the plaintiff and the 2nd respondent herein is the 1st defendant before

the trial Court. For convenience of reference, the ranks given to the

parties in O.S.No.120 of 1995, before the trial Court, will be adopted

throughout this judgment.

The plaintiff filed the above suit against the defendants for the

following reliefs:-

1. to direct the defendants to execute and register sale deed in favour of the plaintiff for the land measuring 680 square yards forming part of Plot No.9 in Survey No.129/1 situated at Kothapet Village, Uppal Mandal, L.B. Nagar Municipality, Ranga Reddy District.

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2. If the defendants fail to execute and register the sale deed, the Court may execute and register the sale deed in respect of the said property in favour of the plaintiff and also

3. to direct the defendants to deliver the suit schedule property to the plaintiff.

It is alleged in the plaint that the defendants are the owners of

open land admeasuring 1280 square yards bearing Plot No.9 in

Sy.No.129/1 situated at Kothapet Village, Uppal Mandal, Ranga

Reddy District, having purchased the same under a registered sale

deed dated 18.03.1989. The plaintiff entered into an agreement of

sale, dated 13.04.1994, with the defendants to purchase land

admeasuring 680 square yards out of 1280 square yards for a total

consideration of Rs.1,60,000/-. The plaintiff paid a sum of

Rs.1,55,000/- to the defendants as part of sale consideration on the

date of the agreement and the same was acknowledged by the

defendants. Under the agreement referred to above, it is stipulated

that the balance consideration of Rs.5,000/- shall be paid by the

plaintiff to the defendants at the time of registration of sale deed on

or before 06.07.1994. At the time of agreement of sale, the

defendants handed over the link documents to the plaintiff. The

plaintiff has expressed his willingness to the defendants that he is

ready much earlier than 06.07.1994 with the amount and requested

the defendants to execute the sale deed and receive the amount at

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the time of registration, but for the reasons best known, the

defendants were evading to do so. Though the plaintiff paid almost

the entire sale consideration except a paltry sum of Rs.5,000/- and

offered to pay the balance amount, the defendants evaded to fulfil

their obligation under the agreement of sale with an ulterior motive

to deprive the plaintiff of his rights and benefits arising out of the

transaction. As the defendants failed to give any response to the

repeated oral demands made by the plaintiff, the plaintiff got issued

a legal notice dated 28.12.1994 to the defendants. The 1st defendant

refused to receive the said notice, whereas the 2nd defendant

received the said notice. After considerable delay, the defendants

got issued reply on 27.02.1995. It is further stated that the allegation

made in the reply notice that the plaintiff was not ready to pay the

balance amount is incorrect and untenable. The plaintiff has always

been ready and willing to perform his part of the terms of agreement

and still continued to be ready to fulfil his obligation under the

agreement. It is also stated in the plaint that in view of the fact that

almost the entire consideration was paid at the time of agreement,

the possession of the schedule property was delivered to the

plaintiff. However, after the receipt of the legal notice, the

defendants trespassed into the suit schedule property and, therefore,

the plaintiff was constrained to ask for possession of the suit

schedule property also.

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The 1st defendant filed written statement denying material

allegations of the plaint, inter alia contending that the suit filed by

the plaintiff for specific performance is neither maintainable in law

nor on facts. It is admitted that the defendants are owners of plot

No.9. It is also stated that the agreement of sale was executed only

as a security to the hand loan advanced by the plaintiff's attorney

holder, M.Linga Murthy, as such a paltry amount of Rs.5,000/- was

mentioned in the said agreement of sale. The G.P.A. holder of

plaintiff had executed through the defendants, a G.P.A. in favour of

one Anand, who is none other than the sister's son of G.P.A. holder

of the plaintiff. The said G.P.A. was executed on 13.04.1994 itself to

carry out the terms of agreement of sale dated 13.04.1994. It is also

stated that having paid a sum of Rs.1,55,000/-, the question of

seeking time till 06.07.1994 shows that the agreement of sale is not

executed as a sale transaction. It is further stated that the 1st

defendant has not received any legal notice as alleged in the plaint.

As per the terms of the agreement of sale, the time is the essence of

the contract. As the terms are not complied with, the same has been

deemed to have been cancelled. The G.P.A. holder of the plaintiff is

a licensed money lender. In the said money transactions, the

defendants are forced to sign on several sale papers due to the

pressures of the G.P.A. holder to pay the amount. The 1st defendant

addressed a letter on 07.12.1994 intimating cancellation of the

agreement of sale and also the cancellation of the G.P.A. bearing

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document No.302 dated 13.04.1994 and to return back the original

document. It is further stated that the name of the plaintiff was

shown only as dummy to avoid taxation problem. Therefore,

prayed to dismiss the suit.

The 2nd defendant filed written statement denying material

allegations of the plaint, inter alia contending that the alleged

agreement of sale is time barred. The G.P.A. holder of the plaintiff

obtained a registered G.P.A. from the defendants in respect of the

suit schedule property on 13.04.1994 from the Sub-Registrar's Office,

Uppal, which was cancelled on 10.08.1994. While supporting the

other contentions of the written statement of the 1st defendant, this

defendant stated that no possession was delivered nor the

defendants trespassed as alleged in the plaint. The present suit was

filed at the instance of the brother-in-law of the plaintiff by name

Linga Murthy and prayed to dismiss the suit.

On the basis of the aforesaid pleadings, the trial court

framed the following issues-

1. Whether the plaintiff is entitled for specific performance of the agreement of sale dated 13.04.1994 in respect of the suit schedule property?

2. Whether the plaintiff is entitled for the possession of the suit schedule property?

3. To what reliefs?

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During trial, the plaintiff was examined as P.W.1 and got

marked Exs.A1 to A6. On behalf of the defendants, D.Ws.1 and 2

were examined and Exs.B1 and B2 were marked.

The trial Court, on consideration of the rival contentions and

also the entire material available on record, decreed the suit.

Against the said judgment and decree, the 2nd defendant filed the

present appeal.

Heard Sri D.V.Seetharam Murthy, learned Senior Counsel

appearing on behalf of Ms. Pitla Sailaja, learned Counsel for the

appellant/2nd defendant; Sri Vedula Venkata Ramana, learned

Senior Counsel for the 1st respondent/plaintiff, Sri Anjaneyulu

Chandubatla, learned Counsel for the 2nd respondent/1st defendant

and perused the record.

Learned Senior Counsel for the appellant/2nd defendant

would submit that as per Ex.A1 agreement, out of total

consideration of Rs.1,60,000/- only Rs.5,000/- remained to be paid

by 06.07.1994, plaintiff was put in possession of the suit schedule

property and link documents were also handed over to the plaintiff

and under clause (12) of Ex.A1, defendants executed G.P.A. bearing

No.302 of 1994 in favour of one K.Anand, a nominee of the plaintiff's

relative exclusively to carry out the terms of Ex.A1 and the plaintiff

does not know the contents of said G.P.A. and also who signed on

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the plaint and that Ex.A1 was not sufficiently stamped or registered

as it was a formal document for the purpose of security to a hand

loan. He further submits that if at all the sale transaction between

the plaintiff and defendants was complete in all respects, but the

plaintiff failed to explain as to why he did not get the sale deed

executed by the defendants GPA holder in respect of the suit

schedule property after 06.07.1994, which was the time specified in

Ex.A1 for execution of a registered sale deed. He also submits that

the fact that G.P.A., dated 13.04.1994, executed by the defendants in

favour of the said Anand, nominee of the plaintiff, to carry out the

terms of Ex.A1 was cancelled on 10.08.1994 vide document No.649

of 1994 and the discharge letter-Ex.B2, dated 12.09.1994, and transfer

of a constructed house by D.W.2, who is the husband of the 2nd

defendant, in favour of the wife of Lingamurthy through Ex.B1,

dated 13.09.1994, establishes that Ex.A1 was executed only as a

security to a hand loan obtained from the brother-in-law of the

plaintiff, who instituted the above suit as the G.P.A. of the plaintiff.

He further submits that in the cross-examination, plaintiff admitted

that he filed the suit through Lingamurthy, his sister's husband; that

he does not remember the dimensions of the suit schedule property

and on which side of the suit schedule property, the road is situated;

that he cannot say where the terms of agreement were finalised and

where he paid sale consideration of Rs.1,55,000/- to the defendants;

that he did not sign Ex.A1-Agreement of sale and the same was got

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prepared by the defendants, with whom he has no acquaintance and

the defendants were known to his brother-in-law Lingamurthy; that

he does not know the personal avocations of the defendants as his

brother-in-law was looking into the transactions; that Lingamurthy

was also present at the time of execution of Ex.A1 and he also

admitted that the said Anand, in whose favour the defendants

executed a registered G.P.A. for carrying out terms of Ex.A1, is the

sister's son of Lingamurthy; that he got impounded Ex.A1, but he

cannot say how much amount was paid by him. In the cross-

examination done on behalf the 2nd defendant, plaintiff admitted

that he was a business man and doing business of Rice Bran, that his

father paid an amount of Rs.1,55,000/- and he has not shown the

said amount in income tax returns for the years 1994-95 and he does

not know, who signed the plaint. Learned Senior Counsel further

submitted that the plaintiff did not examine the said Lingamurthy,

who is his G.P.A. holder, to rebut the allegations that Ex.A1 was

executed towards security to a loan transaction between

Lingamurthy and defendants and that the plaintiff also did not file

any rejoinder to these allegations. Learned Senior Counsel also

submits that Ex.A3-legal notice dated 28.12.1994 was got issued after

Ex.B2-discharge letter, dated 12.09.1994, and Ex.B1-sale deed dated

13.09.1994 and that the plaintiff failed to discharge the initial burden

that Ex.A1 was not a security for a loan transaction by examining

any of the witnesses, who attested Ex.A1. He further submits that in

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her evidence, D.W.1 admitted her signature on Ex.A1, but she does

not know the contents of Ex.A1 as she cannot read English and she

does not know the plaintiff; that one Lingamurthy was known to her

as he was the friend of her husband; that her husband signed on

Ex.A1 as witness and on the instructions of her husband, she signed

Ex.A1 as she was told that for the money owed by her husband to

Lingamurthy as a surety she had to sign Ex.A1 and as such she

signed on Ex.A1; that D.W.1 also stated that her husband and the 1st

defendant were conducting tiles business and in that connection

they borrowed money from the said Lingamurthy. Learned Senior

Counsel also submits that the trial Court ought not to have placed

too much importance that the plea of discharge was taken in the

legal notice at the first instance. Learned Senior Counsel further

submits that O.S.No.122 of 1995 was also filed for specific

performance of the remaining extent of 600 square yards by the said

Lingamurthy, as G.P.A. holder of the plaintiff therein, and the

contents of agreement of sale and the averments in the plaint are

identical. He also submits that the 1st defendant was not examined

as he was out of the Country, but unfortunately this fact does not

find place in the docket proceedings and the same was not noted by

the Advocate-Commissioner and it is for this purpose, the 1st

defendant was shown as 2nd respondent in the present appeal. He

also submits that non-examination of the 1st defendant will not in

any manner prejudice to the case of the defendant in view of the fact

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that D.Ws.1 and 2 gave evidence that Ex.A1 was only a

surety/security to a loan transaction and it stood discharged and

the same was rebutted. In support of his contentions, he relied upon

the judgments of the Apex Court in Parakunnan Veetill Joseph's Son

Mathew v. Nedumbara Kuruvilla's Son and others1 and

S.Rangaraju Naidu v. Thiruvarakkarasu2.

Learned Senior Counsel appearing for the 1st respondent/

plaintiff would submit that the suit was filed for specific

performance and for direction to register the suit schedule property

in favour of the plaintiff and that the plaintiff had expressed his

readiness and willingness to pay the balance sale consideration of

Rs.5,000/-. He also submits that before filing the suit, a legal notice

was issued on 28.12.1994 calling upon the defendants to come

forward for registration of sale deed and a reply notice was given by

the appellant herein stating that as per the agreement of sale the

balance consideration should have been paid on 06.07.1994 and since

the same has not been paid, the agreement of sale stood cancelled

with effect from 06.07.1994. He also submits that the execution of

the agreement of sale is admitted, the payment of the consideration

amount of Rs.1,55,000/- out of Rs.1,60,000/- is also admitted and the

plea taken in the reply notice is that since the remaining amount i.e.,

Rs.5,000/- was not paid before 06.07.1994, the amount already paid

AIR 1987 SC 2328

AIR 1995 SC 1769

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stood forfeited and the agreement of sale stood cancelled. Since the

execution of agreement of sale and the receipt of the amount of

Rs.1,55,000/- from out of Rs.1,60,000/- have been admitted, the only

contention of the appellant that the agreement of sale stood

cancelled and the amount already paid stood forfeited since the

balance amount of Rs.5,000/- was not paid before 06.07.1994, does

not give any effect to the execution of the agreement of sale. The

contention that the agreement of sale does not reflect the intention to

sell the property, but the same is only a security document for the

benefit of the General Power of Attorney holder Lingamurthy, is

vague and is not binding upon the plaintiff. Relying upon the

relevant clause Nos.1 and 2 in the agreement of sale, dated

13.04.1994, learned Senior Counsel submits that the trial Court has

rightly held that the date i.e., 06.07.1994 is for the purpose of

execution of sale deed and the balance consideration of Rs.5,000/-

was agreed to be paid at the time of registration. Thus, the time is

not essence of contract and that there is no clause that the amount

paid will be forfeited and the agreement of sale will stand cancelled

and as such the defendants in the specific performance suit have

wrongly pleaded that non-payment of the balance sale consideration

on or before 06.07.1994 would result in cancellation of the agreement

of sale and forfeiture of the amount already paid. He further

submits that the trial Court after considering the entire evidence on

record has correctly concluded that the suit is liable to be decreed

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and accordingly passed the decree for specific performance. He also

submits that in view of the law laid down by the Apex Court in

Zarina Siddiqui v. A.Ramalingam @ R.Amarnathan3 , since the

defendants have tried to mislead the Court by wrongly pleading

that the balance amount has to be paid on or before 06.07.1994,

which is contrary to clause (2) of the agreement of sale, the trial

Court has rightly decreed the suit for specific performance. He also

submits that in view of the law laid down by the Apex Court in

Aloka Bose v. Parmatma Devi and others4 the contention that the

purchaser has not signed the agreement of sale and only vendors

have signed the agreement of sale is not a valid contention. A

contract of sale will have to be primarily signed by the vendors as

the obligation to execute a registered sale deed is on the vendors and

not on the vendee. Having received Rs.1,55,000/- out of total

consideration amount of Rs.1,60,000/- and admitted the same, it is

not open to contend that the suit is not maintainable for want of

signature of the purchaser on the agreement of sale and, therefore,

he submits that there are no merits in the appeal and prayed to

dismiss the same.

Learned Counsel appearing for the 2nd respondent/1st

defendant adopted the arguments advanced by the learned Senior

Counsel appearing for the appellant/2nd defendant.

(2015) 1 SCC 705

(2009) 2 SCC 582

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This Court being a Court of First Appeal is under an

obligation to reappraise the entire oral and documentary evidence to

come to an independent conclusion, not withstanding the findings

recorded by the trial Court. This Court is conscious of the fact that

before reversing a finding of a fact, the appellate Court has to bear in

mind the reasons ascribed by the trial Court. Therefore, I would like

to reappraise the entire evidence with reference to the legal position

relied upon by the learned Counsel for the appellant/2nd defendant

to decide the appeal afresh, uninfluenced by the finding recorded by

the trial Court. Considering the material available on record and

arguments advanced by the learned Counsel for the respective

parties, the points that arise for consideration are as under:-

1) Whether Ex.A1, dated 13.04.1994 is true, valid, genuine and enforceable under law?

2) Whether Ex.A1 is supported by consideration of Rs.1,60,000/-?

3) Whether the plaintiff is entitled to the relief of specific performance of agreement of sale in respect of 680 square yards pertaining to Sy.No.129/1 of Kothapet Village, Uppal Mandal, Ranga Reddy District as mentioned in the plaint schedule?

The main contention of the appellant/2nd defendant is that

Ex.A1-agreement of sale, dated 13.04.1994, was merely a formal

document for the purpose of security to the hand loan obtained by

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the husband of the 2nd defendant from one Linga Murthy, the power

of attorney holder of the present plaintiff, who has filed the suit in

the capacity of an agent to the plaintiff. It is also the further

submission of the present appellant/2nd defendant that under Ex.A1,

out of total sale consideration of Rs.1,60,000/- only a balance of

Rs.5,000/- remained to be paid by 06.07.1994 i.e., within three

months from the date of execution of the agreement of sale. The

plaintiff was said to have been put in possession of the property

under Ex.A1, so also the link documents were also handed over to

the plaintiff. Under clause (12) of Ex.A1, the defendants executed

General Power of Attorney on the very same day bearing document

No.302 of 1994 in favour of one K.Anand, a nominee of the plaintiff's

relative exclusively to carry out the terms of the agreement of sale.

However, the plaintiff does not know the contents of the said G.P.A.

executed in favour of the said Anand on the same day. Even the

plaintiff does not know who signed the plaint. It is also the

contention of the 2nd defendant that Ex.A1 was neither sufficiently

stamped nor the same was registered, hence it was merely a formal

document for the purpose of security to the hand loan given by the

said Linga Murthy, who is none other than the brother-in-law of the

plaintiff. It is also the specific contention of the 2nd defendant that

the said power of attorney, which was executed in favour of Anand,

was cancelled on 10.08.1994 vide document No.649 of 1994 and the

discharge letter Ex.B2, dated 12.09.1994, and transfer of a

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constructed house by D.W.2, husband of the 2nd defendant, in favour

of the wife of Lingamurthy through Ex.B1, dated 13.09.1994, clearly

establishes that Ex.A1 was executed only towards security to the

hand loan. It is also the case of the 2nd defendant that when the

plaintiff sought for the relief of specific performance and when the

same is denied by the 2nd defendant contending that the said Ex.A1

was executed only for the limited purpose, the onus of proof is

always on the plaintiff to prove the execution of Ex.A1 in any one of

the modes provided under Section 3 of the Indian Evidence Act,

which was not done by the plaintiff.

In order to prove execution of the document i.e., Ex.A1, the

plaintiff himself was examined as P.W.1. During his cross-

examination, the plaintiff admitted that "he filed the suit through

Linga Murthy, his sister's husband; that he does not remember the

dimensions of the suit property and he cannot say on which side of

the suit property, road is situated; that he cannot say where the

terms of agreement were finalised and where he paid the sale

consideration of Rs.1,55,000/- to the defendants; that he extended to

depose that he did not sign Ex.A1-agreement of sale and the same

was got prepared by the defendants, with whom he has no

acquaintance and the defendants were known to his brother-in-law

Linga Murthy; that he does not know the personal avocations of the

defendants as his brother-in-law was looking after the transactions;

that Linga Murthy was also present at the time of execution of

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Ex.A1; it may be true that Anand, in whose favour the defendants

executed a registered G.P.A. for carrying out terms of Ex.A1, is the

sister's son of Linga Murthy; he got impounded Ex.A1, but cannot

say how much amount was paid by him and he cannot say when the

impounding of Ex.A1 was made in the Court".

In the cross-examination on behalf of the 2nd defendant, P.W.1

stated that "he was a businessman and was doing the business of

rice bran; he further stated that his father paid an amount of

Rs.1,55,000/-, however he has not shown the said amount in the

income tax return for the years 1994-1995 and he also categorically

stated that he does not know, who signed the plaint." Except

himself being examined as P.W.1, the plaintiff did not chose to

examine any other witnesses and even he did not examine the said

Linga Murthy, his G.P.A. holder, to rebut the contentions raised by

the defendants that Ex.A1-agreement of sale was merely a security

to the loan transaction between the said Linga Murthy and the

defendants. Even the plaintiff did not file any rejoinder to the

contentions raised by the defendants.

Thus, from a perusal of the aforesaid evidence adduced by the

plaintiff, it is crystal clear that the pleadings and the evidence

adduced before the trial Court is totally contrary to the agreement of

sale for the simple reason that the plaintiff was not even aware of the

execution of the agreement of sale or payment of the sale

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consideration amount. He was not even aware of the plaint

averments as he has categorically stated that the plaint was not

signed by him rather it was signed by his brother-in-law as his

G.P.A. holder.

A perusal of the material available on record, Ex.A3-legal

notice, dated 28.12.1994, was got issued after execution of Ex.B1-sale

deed, dated 13.09.1994 and Ex.B2-the discharge letter, dated

12.09.1994, which prima facie established the fact that Ex.A1 was

executed only towards security to the loan transaction, which was

given by the G.P.A. holder of the plaintiff and for that reason only

Ex.A1 was insufficiently stamped. The plaintiff also did not let-in in

a rebuttal evidence to the contentions of the defendants that Ex.A1

was only a security to the loan transaction between the defendants

and said Linga Murthy, which stood discharged by the defendants

through their cogent evidence so also the documentary evidence i.e,

Exs.B1 and B2. In her evidence before the trial Court, the

appellant/2nd defendant, who was examined as D.W.1, had

admitted that her signature in Ex.A1, but she stated that she does

not know the contents of Ex.A1 as she cannot read English and she

does not know the plaintiff; that Linga Murthy was known to her as

he was the friend of her husband; that her husband signed Ex.A1 as

the witness and on his instructions, she signed Ex.A1 since she was

told that for the money owed by her husband to Linga Murthy as a

security, she had to sign Ex.A1. She also admits that her husband

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and the 1st defendant were conducting business in Tiles and in that

connection they borrowed money from Linga Murthy, as such they

have signed Exs.A1 and A2. In this connection, it would be

appropriate to refer to the judgment of the Hon'ble Supreme Court

in Tejram v. Patirambhau5, wherein it was observed by the Apex

Court that "On the admitted finding that the respondent was a

money lender, it would be unlikely that he had paid Rs.48,000/- as

cash consideration for that agreement; and would not have kept

quiet without asking for the delivery of possession and then without

paying Rs.2,000/- for three years and filing the suit on the last date.

Under these circumstances, the necessary conclusion would be that

the purported endorsement was not, in fact, receipt of the amount

but dues owed to him." In the said case, it was also observed that

"the question that arises for consideration is whether the respondent

has paid Rs.48,000/- as cash consideration towards sale transaction.

It is seen that the document purporting to be an agreement of sale

was not, in fact in truth and in reality an agreement of sale. Witness

2, the scribe of the agreement admitted in the examination-in-chief

that he has executed several similar documents. All those

documents i.e., eight out of ten relate to specific performance; all of

them are those, who took loan from the respondents. It is admitted

position that the respondent is a money lender. Under these

circumstances, the document purporting to be an agreement for sale

(1997) 9 SCC 634

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is in fact not an agreement of sale; it is towards the unpaid interest

of the loan taken by the respondent. If it is a true sale transaction

and the respondent being a businessman and having purported to

have paid Rs.48,000/-, one would expect that he would seek

possession or he would pay the balance consideration and request

for execution of the sale deed. Instead, he kept quiet for full three

years. Be that as it may, it would appear that there was money

transaction between the appellant and the respondent and the

respondent, being a money lender was taken documents, purporting

to be an agreement of sale, from the loanee in the event of loanee's

failure to pay the loan amount along with interest stipulated by him,

the document would, obviously be executed with a view to enforce

the repayment of loan and interest accrued thereon."

In the present case also, as already stated above, Ex.A1 was

executed at the instance of the brother-in-law of the plaintiff

M.Linga Murthy, as there were loan transactions between the

husband of the 2nd defendant and the 1st defendant on one hand and

the said Linga Murthy on the other hand and a G.P.A. was also got

executed and registered in favour of one Anand, the sister's son of

Linga Murthy on the same day, however, though Ex.A1 was

executed in favour of the plaintiff and the total consideration of

Rs.1,55,000/- was shown to have received by the defendants on the

same day leaving the balance of Rs.5,000/- only and the possession

of the scheduled property was shown to have taken on the same

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day, the plaintiff or the G.P.A. holder of the plaintiff have not taken

any steps to get the document registered on the same day simply

because of the reason that they were aware of the fact that Ex.A1

was executed only for the purpose of security to the loan transaction

and not for any other purpose and for this reason only the plaintiff

remained silent till 28.12.1994, when the legal notice-Ex.A3 was

issued and by this time he was aware of the fact that Exs.B1 and B2

have already came into existence. If at all the delivery of possession

was handed over to the plaintiff, he ought not to have sought for the

relief of delivery of possession, which proves the fact that the

agreement of sale was not executed in the presence of the plaintiff.

In Parakanunan Veetill Joseph's Son Mathew v.

Nedumbarakuruvila's Son and others (1 supra) the Apex Court held

as under:-

"14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff. The High Court has failed to consider the motive with which Varghese instituted the suit. It was instituted because Kuruvila could not get the estate and Mathew was not prepared to part with it. The sheet anchor of the suit by Varghese is the agreement for sale

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Ex.A1. Since Chettiar had waived his rights thereunder, Varghese as an assignee could not get a better right to enforce that agreement. He is, therefore, not entitled to a decree for specific performance."

In S.Rangaraju Naidu v. S.Thiruvakkarasu (2 supra) the Apex

Court held as under:-

"2. Though the learned counsel for the appellant sought to contend that the agreement of sale was only collateral to the promissory note and that there was no consensus ad idem to sell the land under the agreement but only as a collateral security, the High Court has gone into the question and gave findings that it was not given as collateral security, but an agreement to sale, with which we are broadly in agreement. But the question is whether the decree for specific performance is to be confirmed. It is true as rightly pointed out by Shri K.R. Choudhary, learned counsel for the respondent, that since the High Court and the courts below have exercised discretion, it may not normally be interfered with under Art, 136 of the Constitution, but the fact remains that the respondents are money-lenders and that they sought to recover the amounts due to them. Since the appellant was not b a position to pay the amount due on the promissory note, he entered into the agreement to sale the property and the agreement was sought to be enforced. Though the appellant had agreed to sell the property to respondents, the pre-dominant object thereby would be for recovery of the dues with interest. He who demands equity must do equity. Court has discretion. Court is not bound to grant specific performance. It depends on facts and circumstances in each case."

GSD, J as_1902_2003

Granting of specific performance is an equitable relief, though

the same is now governed by the statutory provisions of the Specific

Relief Act, 1963 (for short "the Act"). These equitable reliefs are

incorporated in Section 20 of the Act. While granting the relief of

specific performance, the statutory guidelines shall be in the

forefront of the mind of the Court. In the present case, the trial

Court had the added advantage of recording the evidence and

seeing the demeanour of the witnesses ought to have also kept in

mind the statutory guidelines as stipulated in Section 20 of the Act.

Discretion of the Court regarding grant of specific relief is not to be

exercised in arbitrary or unreasonable manner. On the facts as

emerged from the record, the plaintiff has tried to take unfair

advantage of the defendants and had approached the Court with

unclean hands and has behaved unfairly all throughout. It is also

clear that the plaintiff has made futile attempts to legalise the illegal

acts of his brother-in-law M.Linga Murthy, who is also the power

attorney holder of the plaintiff, in respect of Ex.A1 alleging that the

defendants have agreed to sell the scheduled property, which

creates great suspicion in respect of genuineness of Ex.A1. The

power of attorney holder M.Linga Murthy, who has entered into

several transactions with the 2nd defendant and her husband, has not

entered his appearance and he has not adduced any evidence before

the trial Court regarding the sale transaction and payment of

consideration. Since the plaintiff failed to examine his Power of

GSD, J as_1902_2003

Attorney Holder and has not proved the payment of sale

consideration or the execution of agreement of sale, he is not entitled

to any discretionary relief i.e., the decree for specific performance.

In the light of the observations made above, the judgments

relied upon by the learned Senior Counsel for the plaintiff, are not

applicable to the facts of the present case.

In view of the discrepancies pointed out in the aforesaid

paragraphs, the trial Court only by drawing an inference,

erroneously concluded that Ex.A1 was executed for valid

consideration and as such the said finding of the trial Court is liable

to be set aside.

In the result, the Appeal Suit is allowed, and the judgment

and decree, dated 30.06.2003, passed in O.S.No.120 of 1995 on the

file of the Principal Senior Civil Judge, Ranga Reddy District, is

hereby set aside. There shall be no order as to costs.

Consequently, miscellaneous petitions, if any, pending shall

stand closed.

_____________________ JUSTICE G. SRIDEVI

05.10.2021 Gsn/gkv

GSD, J as_1902_2003