Smt.Kurapati Yashoda vs Smt. Mena Saraswathi And Another
2022 Latest Caselaw 6404 Tel

            THE HON'BLE SRI JUSTICE M.LAXMAN

                    APPEAL SUIT No.188 of 2022

JUDGMENT:

1. This appeal is taken up for final disposal with the consent of

both the learned counsel.

2. The present Appeal Suit is directed against the judgment

and decree dated 11.04.2022 in O.S.No.31 of 2017 on the file of

the Court of learned Principal District Judge, Warangal wherein

and whereby the suit filed by the appellant herein for specific

performance of agreement of sale dated 31.10.2011 was

dismissed. Aggrieved by the same, the present Appeal Suit is filed

at the instance of the appellant.

3. For the sake of convenience the parties hereinafter are

referred to as they are arrayed in the suit.

4. The sum and substance of the case is that, originally the 1st

defendant is absolute owner and possessor of agricultural land

admeasuring Ac 05.04 gts forming part of Survey Nos.19/A,

23/A, 16, 17, 45/B, 45/A, 46, 331 and 47/B situated at

Vasanthapur Village, Geesugonda Mandal, Warangal District.

The plaintiff entered into an agreement of sale dated 31.10.2011

with the 1st defendant for purchase of the same. Out of the said

extent of land, the 1st defendant also agreed to sell Ac 0.07 gts of

land for which she was not holding title. The plaintiff intended to

purchase the same and thereafter, agreed to execute registered

sale deed. The total sale consideration was Rs.26,52,000/-. On

the date of agreement, Rs.10,00,000/- was paid by the plaintiff

and the balance sale consideration was agreed to be paid within

45 days or at the time of registration whichever was earlier.

5. Since the plaintiff failed to pay the balance sale

consideration within 45 days and as time was the essence of

contract, the 1st defendant issued legal notice on 29.04.2016 and

subsequently, the said agreement was cancelled. The earnest sale

consideration of Rs.10,00,000/- was forfeited. Therefore, the

present suit has been filed for specific performance of agreement

of sale.

6. The case of the defendants is that, there is no dispute with

regard to agreement of sale dated 31.10.2011 and the terms and

conditions stipulated therein. The receipt of part sale

consideration of Rs.10,00,000/- by the 1st defendant is also not in

dispute. The 1st defendant is aware of the fact that the plaintiff

obtained loan from Axis Bank, as she was guarantor for the said

loan transaction. The plaintiff is also aware of the fact that Ac.

0.07 gts of land would be conveyed to her only if the 1st defendant

gets her title to the property from the real owner. Further, the

plaintiff obtained loan from Axis Bank and she is defaulter in

payment of the loan due to which the Bank has instituted suit for

recovery of money and then the 1st defendant paid the amount.

The plaintiff without having sufficient means entered into the

agreement of sale and therefore, she has not challenged the said

cancellation of agreement of sale dated 31.10.2011. Since, the

plaintiff never expressed her readiness and willingness to pay the

balance sale consideration therefore, the suit is not maintainable.

7. On the basis of the above pleadings, the following Issues are

framed by the trial Court:-

(i) Whether the agreement of sale dated 31.10.2011 is true, valid and

binding on the defendant ?

(ii) Whether time is the essence of agreement of sale dated 31.10.2011 ?

(iii)Whether the plaintiff was ready and willing to perform the part of

contract ?

(iv)Whether the plaintiff is entitled to the specific performance of

agreement of sale dated 31.10.2011 ?

(v) To what relief ?

8. The prove the case of the plaintiff, she herself got examined

as PW1 and got marked Exs.A1 to A12. The 1st defendant

examined herself as DW1 and also examined DW2 and got

marked Exs.B1 to B5.

9. Heard learned counsel appearing on either side.

10. The following points emerges for consideration:

1. Whether the plaintiff has performed or has always been ready and

willing to perform her part of contract ?

2. Whether the plaintiff is entitled for refund of advance sale

consideration in the event, specific performance of agreement of sale is

refused ?

Point No.1:

11. There is no dispute with regard to the fact that on the date

of execution of agreement of sale an amount of Rs.10,00,000/-

was paid by the plaintiff. Till the legal notice was issued by the 1st

defendant, there was no readiness and willingness on the part of

the plaintiff for payment of balance sale consideration. No

evidence is placed on record to show that the plaintiff was having

sufficient means to pay the balance sale consideration of

Rs.16,52,000/-. From the evidence, it is also evident that when

the plaintiff failed to pay the loan amount within time, the Bank

instituted the suit. This was taken note of by the trial Court while

considering the fact of capacity of the plaintiff to pay balance sale

consideration and the same is not in dispute. Though a specific

date is fixed for the purpose of concluding the contract, from the

conduct of the parties, it can be inferred that, the plaintiff slept

over for almost four years and six months and wokeup when the

1st defendant has issued legal notice cancelling the agreement of

sale. This itself is a ground to show that the plaintiff has no

means to pay the balance sale consideration. The said aspect was

rightly taken into consideration by the trial Court and rightly

dismissed the suit for specific performance of agreement of sale.

Therefore, such a finding given by the trial Court requires no

interference.

12. It is an admitted fact that the plaintiff has paid an amount

of Rs.10,00,000/- towards advance sale consideration. The 1st

defendant issued legal notice by forfeiting the said amount when

there is no forfeiture clause in the agreement of sale. Further, if

the amount paid is a security for the performance of contract i.e.,

'Earnest Money Deposit' then only, the 1st defendant has a right

to forfeit such an amount. He has no right to forfeit the payment

paid as advance sale consideration.

13. Learned counsel for the defendants contended that the 1st

defendant had discharged the loan amount of the plaintiff when

the Bank filed suit for recovery of money against her. There is no

proof or record to that effect before the trial Court. The 1st

defendant had not set up the plea of set off in the written

statement in respect of adjustment of sale consideration.

Therefore, his plea of discharge of loan has no bearing on the

refund of advance sale consideration.

14. It is agreed by the defendants that they have no grievance if

the amount is ordered to be refunded. Hence, this Court, to meet

the ends of justice feels that, the 1st defendant shall refund the

advance sale consideration of Rs.10,00,000/- in respect of the

agreement of sale to the plaintiff.

15. In the result, the Appeal Suit is partly allowed as follows:-

(a) The 1st defendant is directed to refund the advance sale

consideration of Rs.10,00,000/- (Rupees ten lakhs only)

within eight weeks from today. If the amount is not

refunded within the time stipulated, the 1st defendant is

directed to pay interest @ 12% per annum on the said

amount.

(b) Thereafter, the 1st defendant is directed to deposit the

said amount in the Bank Account number given by the

plaintiff towards full and final satisfaction of the discharge

of amount.

(c) The plaintiff is directed to furnish the details of her Bank

Account to the 1st defendant, within a period of four weeks

from today.

(d) Till the amount is paid, the suit property shall stand

encumbered to the extent of above liability. No costs.

Miscellaneous Petitions, pending if any, shall stand closed.

______________________ JUSTICE M.LAXMAN 05.12.2022 ESP

THE HON'BLE SRI JUSTICE M.LAXMAN

A.S.No.188 of 2022

Dated: 05.12.2022

ESP