M/S. Sri Sai Prashanthi ... vs T. Bhaskaer Reddy
2022 Latest Caselaw 5271 Tel

       THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

                APPEAL SUIT No.909 of 2012

JUDGEMENT:

A.S.No.909 of 2012 is filed against the judgment of the

trial Court in O.S.No.1244 of 2008 dated 03.09.2012. The facts

of the case before the trial Court is that one T.Bhaskar Reddy

filed suit against defendants for execution of registered sale

deed in his favour regarding plaint B - Schedule property and in

the alternative, he requested the Court to execute the registered

sale deed in his favour at his cost and also to put him in

possession after evicting the defendants from the B- schedule

property. Plaintiff stated that he entered into agreement of sale

dated 22.07.2005 for a total sale consideration of Rs.9,60,000/-

with defendant Nos. 4 to 6 regarding property in Plot bearing

No.512, 5th floor, admeasuring 1085 Sq.ft with a common

undivided area of 45 Sq. yards at Lingojiguda (V), Saroornagar

(M), R.R District. M/s. Sri Sai Prashanthi

Constructions/defendant No.6 is represented by defendant Nos.

5 and 6 as Managing Partners.

2. Originally, A-Schedule property belongs to defendant

Nos.1 to 3. They executed a registered General Power of Attorney cum agreement of sale in favour of defendant Nos. 4 to

6 after receiving the entire sale consideration and thus

defendants 4 to 6 became absolute owners and possessors and

they entered into agreement of sale with the plaintiff on

22.07.2005. The defendant Nos. 4 to 6 obtained concerned

permission for construction of residential complex with Huda

vide proceedings No.8435/P4/H/2001 dated 21.12.2001 and

also from L.B.Nagar Municipality vide proceedings

No.G1/BP/233/2002 dated 21.08.2002 and started

construction of residential complex and offered to sell various

flats to the prospective purchasers including the plaintiff.

3. The plaintiff entered into agreement of sale with the

defendant Nos.4 to 6 on 22.07.2005 and paid a sum of

Rs.2,00,000/- towards the advance sale consideration and

agreed to pay balance of Rs.7,60,000/- at the time of

registration of sale deed. There was a condition in the

agreement of sale that defendant Nos.4 to 6 shall complete the

construction work within 12 months from the date of agreement

of sale and also to deliver the possession of the same to the

plaintiff. But, they stopped the construction work of the

B-schedule property and whenever the plaintiff questioned the

defendant Nos. 4 to 6, they stated that due to their business

inconvenience the construction work was stalled for some time.

He requested them to hand over the vacant possession of plaint

B-schedule property. They completed the work in the month of

September, 2007. When the plaintiff requested them to receive

the balance sale consideration and execute a registered sale

deed in his favour, they were postponing the matter on one or

the other pretext. Hence, Plaintiff sent legal notice dated

22.01.2008 to defendant Nos. 4 to 6 and the same was received

by them on 29.01.2008. But, they did not given any reply.

Plaintiff was always ready to perform his part of contract and

willing to pay the balance of sale consideration. He filed suit for

specific performance in July, 2008 requesting the Court to

direct the defendants to execute registered sale deed in his

favour after receiving the balance of sale consideration.

4. In the Written Statement submitted by the defendant

Nos.4 to 6, they stated that admittedly, they entered into

agreement of sale on 22.07.2005 and received Rs.2,00,000/-

from the plaintiff as advance and he has to pay the balance

amount within 12 months from the date of execution of the

agreement. But, he failed to pay balance of sale consideration

within stipulated period. As such, he cannot enforce the

agreement of sale by way of Specific Performance. They have

also stated that they alienated all the flats to the purchasers

and they are looking after the said complex. But, the plaintiff

did not pay balance amount within 12 months. Though, in the

legal notice he requested to receive the amount and execute the

sale deed within 3 days, he filed suit in September, 2008 and

failed to explain the delay. Therefore, they submit that the suit

is barred by limitation and is liable to be dismissed.

5. Defendants also filed their written arguments in their

favour. They mainly contended that plaintiff failed to prove that

he was ready and willing to pay balance amount from issuance

of notice dated 22.01.2008 to till the date of filing of the suit i.e,

29.07.2008 as per Section 16(c) of the Specific Relief Act. They

further stated that all the flats were sold away between 2005 to

2007 and the purchasers of the flats were formed into an

association namely, M/s. Satya Sai Enclave Owners Welfare

Association and the same was registered in the year 2007 itself.

As the plaintiff is not ready and willing to perform his part of the

contract under the said agreement, he is not entitled for specific

performance of the agreement of sale.

6. The trial Court considering the arguments of both sides

and also the citations relied upon by them, decreed the suit in

favour of the plaintiff and directed the defendant Nos. 4 to 6 to

execute the registered sale deed in favour of the plaintiff within

two months and the suit against the defendant Nos.1 to 3 was

dismissed regarding A and B schedule properties. Aggrieved by

the said order defendants in the suit filed an appeal and they

mainly filed the appeal on the same ground raised by them

before the trial Court. In the trial Court, plaintiff is examined as

P.W.1 and marked Ex. A-1 to Ex. A-6 on his behalf i.e, original

agreement of sale along with office copy of the legal notice,

copies of the acknowledgment and returned covers. Defendant

was examined as D.W.1 and filed all the encumbrance

certificates of the flat owners in M/s. Satya Sai Enclave from the

year 2005 to 2007 and marked as Ex. B-1 to Ex. B-65.

7. The point for consideration is whether the trial Court

granted decree in favour of the plaintiff on proper appreciation

of the facts and evidence and if so, whether the order of the trial

Court is liable to be set aside or not.

8. Perusal of the agreement of sale dated 22.07.2005, shows

that defendant Nos. 4 to 6 executed it in favour of plaintiff. In

the said agreement of sale, it was specifically mentioned that

the total sale consideration was Rs.9,60,000/-, he paid

Rs.2,00,000/- as advance and he shall pay total sale

consideration strictly as per the schedule mentioned above and

time is essence of the contract. The vendors shall complete the

construction of B-schedule property within 12 months from

today and on receipt of the total sale consideration from the

vendee, vendors shall execute the registered sale deed of the B-

schedule property in favour of the vendee. The said provision in

the agreement of sale shows that, it is for the defendant Nos.4

to 6 to complete the construction within 12 months from the

date of agreement of sale. It is not mentioned anywhere in the

agreement of sale that plaintiff has to pay balance of sale

consideration within 12 months. Therefore, argument of the

defendants that plaintiff failed to pay the balance of sale

consideration within 12 months is not tenable.

8. It was brought on record that the construction was stalled

and in the meanwhile it was completed within 12 months. The

defendants clearly admitted that it was completed in September

2007. Though, the plaintiff asked them to hand over the

possession, defendants did not respond to his request. As such,

he gave legal notice on 22.01.2008 and the same was received

on 29.01.2008. But, they did not give any reply. In the said legal

notice plaintiff stated that he was ready with the balance

amount and requested them to register the flat in his favour

within 3 days. But, the defendants neither agreed for it nor

denied it. In fact, they did not give any reply to the notice. As

such, the plaintiff was compelled to file a suit for specific

performance against defendants. Defendants raised objection

stated that if the plaintiff was ready with the money as stated in

the legal notice, why he has kept quite for eight months to file

suit. Defendants have failed to respond to the legal notice of the

plaintiff, as such they cannot take the advantage of his mistake

and question the plaintiff for non-filing of the suit for eight

months. The conduct of the defendants clearly shows that they

are trying to protract the litigation. In view of contract, in the

process of purchase of flats they are not inclined to register the

sale deed in favour of plaintiff and compelled him to approach

the Court. Even when the decree was granted in his favour, they

preferred appeal and raised the same ground.

9. Defendants mainly contended that it is for the plaintiff to

prove that he was ready to perform his part of the contract in

the agreement of sale. Plaintiff clearly stated that he is ready to

pay the balance amount. As per the terms of the agreement of

sale, defendants failed to complete the construction of flats

within 12 months. Even after completion of the construction,

they did not issued any notice to the plaintiff, when plaintiff

issued notice they did not reply. Even when plaintiff filed suit,

they took objection that he is not ready and willing to pay the

balance amount and he has not deposited the same in the trial

Court. They should have agitated the said aspect and request

the Court to direct the plaintiff to deposit the said amount

before the Court during the pendency of the proceedings. But,

they kept quite. Now, they cannot raise the said objection at the

belated stage. It was time and again stated by the Courts that

ready and willing does not make that the plaintiff has to keep

money in his pocket each and every day to establish his

readiness. Plaintiff entered into agreement with the defendants

and agreed to pay balance at the time of registration of the sale

deed. Even after the completion of the work, he requested the

defendants to execute sale deed in his favour. But, they failed to

do so. Hence, plaintiff issued legal notice. Even then, they have

not responded and objected the filing of suit. Even after

obtaining order in his favour, they preferred appeal and raised

an objection that plaintiff was not ready and willing, which is

not sustainable.

10. The trial Court considering the evidence on record and

also the agreement of sale and the citations filed by both the

parties, rightly granted decree in favour of the plaintiff and

directed the defendant Nos. 4 to 6 to execute the sale deed

within two months from the date of Judgment. There is no

infirmity in the Judgment of the trial Court and it needs no

interference. As the appellants preferred the appeal and delayed

the matter for nearly a decade, appeal is dismissed with costs of

Rs.10,000/- to the appellants herein and the amount is to be

paid within one month from the date of this order.

In the result, this appeal is dismissed confirming the

order of the trial Court in O.S.No.1244 of 2008 dated

03.09.2012 and the appellants are directed to pay costs of

Rs.10,000/- to the plaintiff in the suit within one month from

the date of this order.

Miscellaneous petitions pending, if any, shall stand

closed.

_________________________

JUSTICE P.SREE SUDHA

DATED: 26.10.2022

tri

THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

APPEAL SUIT No.909 of 2012

DATED: 26.10.2022

TRI