Yelagapalli Malliah vs Mr. Manne Mahender Reddy
2022 Latest Caselaw 3966 Tel

         THE HON'BLE SRI JUSTICE P.NAVEEN RAO

                                     AND

   THE HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU

                       A.S. NO.1402 of 2018

JUDGMENT:      (Per the Hon'ble Sri Justice Sambasiva Rao Naidu)




      The defendants 1 to 6 in O.S.No.134 of 2012 on the file

of V Addl. District Judge, Nalgonda, are appellants in this

appeal and Respondents were plaintiffs. For convenience, the

parties will be referred as they are arrayed in the suit. The

plaintiffs have filed the above said suit for specific

performance of contract under the agreement of sale, dated

18-08-2012. The suit was decreed by the trial Court,

aggrieved by the said Judgment, the defendants filed the

present appeal.

2. The plaintiffs have pleaded that the defendants

who are absolute owners and possessors of an extent of

Ac. 20-10 gts of land in Sy.Nos. 880, 883 to 887 of

Yedullagudem, have offered the said land for sale and

plaintiffs have agreed to purchase the property @

Rs.6,10,000/- per acre i.e. for a total consideration of 2 PNR,J & SSRN, J A.S.No.1402 of 2018

Rs.1,23,52,500/- and received Rs.20,00,000/- towards

advance. It was the further case of plaintiffs that all the

defendants have executed agreement of sale on 18-08-2012

in favour of the plaintiffs. As per the terms of agreement, the

plaintiffs have to pay Rs.10,00,000/- on 15-09-2012 and

balance consideration shall be paid in two months and fifteen

days subject to the defendants get the property measured

with the help of revenue records such as tippan and fix the

boundaries. The plaintiffs have further pleaded that they

have paid Rs.10,00,000/- on 15-09-2012 and defendants

have received the amount and D3, D5 made an endorsement

to that effect on the agreement. It was the further case of

the plaintiffs that they have approached the defendants with a

request to get the land measured and for fixing the

boundaries but the defendants postponed the same. The

plaintiffs have claimed that they were always ready and

willing to pay the balance amount and to obtain the registered

sale deed but in view of abnormal increase in the land value

at the locality the defendants failed to get the land measured

and failed to register the land in favour of the plaintiffs and

trying to alienate the property to others. Therefore, they got 3 PNR,J & SSRN, J A.S.No.1402 of 2018

issued a legal notice on 12-11-2012 to all the defendants with

a request to complete the measurements of the land and

execute registered sale deed by receiving the balance sale

consideration. But there was no proper response from the

defendants thereby, they filed the suit for specific

performance of sale agreement.

3. The defendants have appeared before the court

below and filed written statement interalia admitting their title

and possession on the suit schedule property, execution of

sale agreement on 18-08-2012, receipt of Rs.20,00,000/- at

the time of execution of sale agreement and Rs.10,00,000/-

on 15-09-2012. They did not dispute the terms of agreement

viz., price fixed, extent agreed to be sold etc., The defendants

have pleaded that as per the terms of agreement the plaintiffs

have to pay balance in two and half months from the date of

agreement, but they failed to pay the amount within time.

They have approached the plaintiffs several times and made

oral requests to pay the balance but the plaintiffs failed to

perform their part of contract. As the plaintiffs failed to pay

the balance within the stipulated period, the agreement dated

18-08-2012 was cancelled and they are entitled to forfeit the 4 PNR,J & SSRN, J A.S.No.1402 of 2018

amount paid by the plaintiffs. Therefore the plaintiffs are not

entitled to specific performance and sought for dismissal of

the suit.

4. The trail court framed the following issues:

1. Whether the plaintiffs are entitled for specific performance as prayed for ?

2. Whether the Court fee paid is not correct ?

3. Whether the suit is barred by limitation ?

4. To what relief ?

5. In order to prove their claim, the 1st plaintiff has

filed his evidence in the form of affidavit on 06-03-2018, copy

of chief affidavit was served on the defendants on

25-04-2018, PW.1 was examined in further chief on

02-05-2018, and in the further examination he has marked

Exs.A1 to A39. PW.1 was present before the Court on

11-06-2018, 18-06-2018 and on 21-06-2018 but there was

no representation for defendants. The trail court treated the

cross examination of PW.1 as nil. As per the endorsement on

the proceedings sheet, the court below set the defendants

ex parte on 21-06-2018. The defendants did not adduce any

evidence in support of their claim. As there was no

representation on behalf of defendants, having heard the 5 PNR,J & SSRN, J A.S.No.1402 of 2018

learned counsel for the plaintiffs, the trail Court passed a

decree in favour of the plaintiffs. The trail Court accepted the

case of plaintiffs and decreed the suit with costs with a

direction to the defendants to execute sale deed in favour of

the plaintiffs in two months and plaintiffs were directed to

deposit the balance consideration.

6. Aggrieved by the said Judgment, the defendants

have filed the present appeal mainly on the ground that the

plaintiffs were never ready and willing to perform their part of

contract, they failed to pay the balance consideration with in

time, as per the terms of agreement of sale, thereby the

defendants are not liable to execute any sale deed in favour of

plaintiffs and they are entitled to forfeit the advance amount

received from the plaintiffs. The defendants have further

pleaded in the grounds of appeal that the trail court did not

give proper opportunity to the defendants to prove their

claim, as such they sought for setting aside the Judgment and

Decree passed by the trail court.

7. In view of the grounds urged in the present

appeal and in view of the arguments advanced by the learned 6 PNR,J & SSRN, J A.S.No.1402 of 2018

counsel for the defendants/appellants the following points

arose for consideration:

1. Whether the plaintiffs failed to perform their part of contract, thereby they are not entitled to the relief of specific performance?

2. Whether the defendants were not given proper opportunity to contest the suit before the trail court, thereby the Judgment and Decree passed by the trial court are liable to be set aside?

8. As per the pleadings of both parties certain facts

are not in dispute. The ownership of defendants over the suit

property is admitted. The defendants have admitted the

execution of sale agreement dated 18-08-2012, which is

marked as Ex.A1 and receipt of Rs.20,00,000/- as advance

under Ex.A1, they have also admitted the receipt of

Rs.10,00,000/- on 15-09-2012 and making an endorsement

vide Ex.A2. The plaintiffs have pleaded that they were always

ready and willing to pay the balance consideration and to

perform their part of contract, but as per the terms of

agreement, the defendants have to get the land surveyed as

per the revenue records and fix the boundaries before

registration. But the defendants failed to complete the

measurements and avoided the same in view of abnormal

increase in the land value at that locality. Therefore they got 7 PNR,J & SSRN, J A.S.No.1402 of 2018

issued legal notice demanding them to complete the survey

and execute the sale deed but there was no response.

On the other hand the defendants have pleaded that the

plaintiffs failed to pay the balance consideration and in spite

of their oral requests for completion of survey they did not

respond, thereby the agreement was cancelled and they are

entitled to forfeit the advance amount.

9. The suit is based on Ex.A1 sale agreement. In

order to decide whether the plaintiffs are entitled to the relief

of specific performance, it is just and necessary to see the

undisputed terms of sale agreement. According to the sale

agreement the plaintiffs have to pay Rs.10,00,000/- by

15-09-2012 apart from the advance amount which they paid

at the time of execution of Ex A1, and as per the notices

exchanged between the parties and as per averments of

Written Statement filed by the defendants the payment of Rs.

10,00,000/- on 15-09-2012 has been admitted by the

defendants. The main dispute between the parties is with

regard to payment of balance consideration, the plaintiffs

have claimed that the defendants have to complete the

survey before the stipulated time and fix the boundaries with 8 PNR,J & SSRN, J A.S.No.1402 of 2018

the help of the revenue records, whereas the defendants have

pleaded that the plaintiffs shall pay the balance sale

consideration within two and half months from the date of

agreement and that though they orally requested the plaintiffs

to completing the survey they did not respond. In view of this

controversy it is just and necessary to see the terms of

agreement. Clause 2 of the agreement is relevant in this

regard. .....

10. Clause 2 (ii) of agreement reads as follows:

"The remaining balance sale consideration amount will be paid by the vendee to the vendors subject to the measurements as per the records on or before 2(two) months 15(fifteen) days from the date of this agreement at the time of registration for the said terms of payment both the parties agreed for the same."

This condition shall be read with connected clause i.e. Cl. 10 of the agreement which reads as follows:

"That the vendors shall cause the survey of the schedule properties in consonance with the official Tipton of survey and settlement department and fix the boundaries as per the official survey before the registration with their own costs"

11. Therefore it is very clear that there's an obligation

on the defendants to get the property agreed to be sold,

measured (surveyed) as per the official records and fix the 9 PNR,J & SSRN, J A.S.No.1402 of 2018

boundaries. The said fixation of boundaries shall be

completed before the actual registration and the obligation of

plaintiffs about payment of balance is subject to the

completion of survey. As per the plaint and according to the

evidence of PW1 they have paid 2nd installment on

15-09-2012 itself, and requested the defendants to complete

the survey, but they have avoided the same in view of the

hike in the prices of lands, thereby they got issued legal

notice but the defendants did not respond, as such they filed

the suit.

12. As per the sale agreement the period fixed for

payment of final amount will expire in the first week of

November 2012. The plaintiffs got issued legal notice vide

Ex.A3 demanding the performance of agreement terms on 12-

11-2012. As per postal endorsement on the covers filed

before the court, except the notices addressed to D5 and D6

the remaining notices were returned with an endorsement

that the addressee was not available in the village and notices

of D5 and D6 were returned as "Refused". Therefore the

notices addressed to the other defendants must have been

returned after waiting for at least 7 days.

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                                                     A.S.No.1402 of 2018

13. The plaintiffs have marked the notices got issued

by the defendants on 15-11-2012 as Ex.A15. In Ex.A15, the

defendants have claimed that they have approached the

plaintiffs several times and "orally" intimated them to do the

measurements and pay the balance but the plaintiffs did not

heed to their request and failed to perform their part of

contract. In fact the notice under Ex.A15 was sent with a

specific allegation that the plaintiffs adopted illegal tactics to

pressurize the defendants for settlement through S.H.O.

Valligonda PS. The plaintiffs have marked another legal notice

got issued by the defendants as Ex.A34 and it clearly

indicates that the defendants have filed one Writ Petition

before the High Court alleging police interference in this

transaction and they have filed a Contempt Case also against

the police.

14. Therefore it is very clear that though the notice

got issued by the plaintiffs vide Ex.A3 was returned with an

endorsement that it was not served on the defendants, D5

and D6 have refused the notices and they got issued notice on

15-11-2012 itself as if they don't have any knowledge of

Ex.A3 with an allegation that the plaintiffs trying to pressurize 11 PNR,J & SSRN, J A.S.No.1402 of 2018

them for settlement. In fact there was no such necessity for

the plaintiffs to pressurize the defendants for any settlement,

because they have already paid Rs.30,00,000/-, their notice

dated 12-11-2012 clearly shows their readiness and

willingness to pay the balance and to get sale deed registered,

provided the defendants get the land surveyed, and fix the

boundaries as per Tippan.

15. In view of the above said specific clause it is for

the defendants to complete the survey as per revenue

records, and in such case, unless they approach the revenue

officials and place a written request for survey, the same

cannot be completed. If the defendants were really ready to

get the survey, before they made alleged oral request to

plaintiffs, they must have filed application for survey and it

may not be impossible for them to file the proof about such

application before the court. But no such proof has been filed

by the defendants. Except the averment in the written

statement no proof is available to prove that the defendants

were ready to get the land surveyed which is compulsory for

receiving the balance from the plaintiffs. The price for the

land is more than one crore, therefore it is quite natural for a 12 PNR,J & SSRN, J A.S.No.1402 of 2018

vendee to request his vendor to show the land within fixed

boundaries as per official records.

16. The contents of Ex.A34 clearly indicates that the

defendants having got the notice issued by the plaintiffs

returned unserved, they have issued this notice as if they

have no knowledge of Ex.A3 notice, but it is not their case

either in the notice or in their written statement that they

were not staying in the address mentioned in Ex.A3 notices,

and the notice vide Ex. A15 obviously issued only to escape

their obligation. Therefore it is very clear that the defendants

failed to perform their part of contract. The probability of

defendants avoiding the survey and fixing the boundaries due

to huge hike in the land prices is more than the probability of

plaintiffs who have already paid Rs.30,00,000/- in 2012

without any reason, failed to respond to the alleged "oral"

request of defendants. The notices exchanged between the

parties clearly indicate the value of the property. No prudent

person having paid Rs.30,00,000/- and who has issued legal

notice within the stipulated period will remain silent to such a

request. There is no explanation from the defendants why 13 PNR,J & SSRN, J A.S.No.1402 of 2018

they did not issue any legal notice demanding the plaintiffs to

come forward for obtaining registered document.

17. The plaintiffs have filed the suit seeking specific

performance and filed all the documents in support of their

claim about the readiness and willingness to perform their

part of contract. The defendants have engaged an Advocate

before the trial Court and filed written statement. The

plaintiffs have filed chief-affidavit of PW.1 before the Court

below and a copy of the said affidavit was served on the

defendants. The defendants have got knowledge as to what

is the evidence of PW.1 and what documents he has filed in

support of their claim, but they did not choose to cross-

examine PW.1, they did not choose to produce their own

evidence before the trial Court. If the defendants are of the

opinion that they are unnecessarily set ex parte, it may not be

difficult for them to file a petition within time under the

relevant provisions for setting aside the said ex parte order

and to produce their evidence. They did not choose to do so.

The suit was disposed of by the trial court on

27-06-2018.

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                                                    A.S.No.1402 of 2018

18. As per the endorsement on the certified copies, it

shows the defendants have filed application for certified copy

of judgment and decree on 27-07-2018; the copies were

prepared and delivered to the defendants on the same day.

Therefore, it is very clear that the defendants were served

with the copy of the judgment within one month from the

date of judgment. If the defendants are really serious about

what they have claimed in the present appeal, they have got

every opportunity to oppose the decree on the ground that

they were unnecessarily set ex parte. If such an application

was filed before the Court, it could have been decided on

merits. But the defendant instead of filing an application

either for setting ex parte order aside or seeking permission

to produce their oral and documentary evidence, they filed

the present appeal before the Hon'ble High Court on 16-08-

2018. Therefore, the defendants consciously did not choose

to cross-examine PW.1, did not choose to produce their

evidence before the trial Court, did not choose to file an

application for setting aside ex parte order and filed the

present appeal, which clearly shows that their interest was

not to contest the suit but only to drag the proceedings.

                               15                       PNR,J & SSRN, J
                                                    A.S.No.1402 of 2018

19. The records placed before the Court clearly

indicate that they did not file any application before the

Revenue Authorities to get the land surveyed for fixing the

boundaries as required under Ex. A1 sale agreement. Having

failed to perform their part of contract, they cannot throw

blame on the plaintiffs. There was no fault on the part of

plaintiffs in performing their part of contract, as such, the

defendants cannot say that they have cancelled the contract

and they are entitled to forfeit the advance amount received

under Exs.A1 and A2 endorsement. The plaintiffs must be

able to prove that they were always ready and willing to

perform their contract. The evidence placed before the Court

would show the plaintiffs were ready and willing to perform

their part of contract. The defendants have pleaded that the

relief sought for by the plaintiffs is barred by limitation but,

they did not produce any evidence in support of the said plea.

Even if they did not cross-examine PW.1, they can as well

examine any defendant in support of their contention. A

simple statement that they orally requested the plaintiffs to

get the land measured cannot be accepted, more particularly,

in the light of above stated circumstances. Therefore, the 16 PNR,J & SSRN, J A.S.No.1402 of 2018

contention of defendants cannot be accepted. The defendants

are not entitled to any relief much less the relief of dismissal

of the suit. The trial Court rightly passed the relief in favour

of the plaintiffs as such, the appeal is not maintainable.

In the result, the appeal is dismissed with costs.

Consequently, Miscellaneous applications if any, are

closed.

                                      ___________________
                                      JUSTICE P.NAVEEN RAO



                            __________________________
                            JUSTICE SAMBASIVA RAO NAIDU

Date:     .07.2022
PLV
 17      PNR,J & SSRN, J
     A.S.No.1402 of 2018