A Babu Rao vs A Raju
2023 Latest Caselaw 130 Tel

       HONOURABLE SMT. JUSTICE P.SREE SUDHA

                    C.C.C.A.No. 94 of 2018

JUDGMENT:

This appeal, under Section 96 Order LXI Rule 1 of

C.P.C., is filed by the unsuccessful defendant assailing the

judgment and decree passed in O.S.No.57 of 2013, dated

14.12.2017, on the file of the I-Additional Chief Judge, City

Civil Court, Secunderabad.

Appellant herein is defendant and respondent herein

is plaintiff in the suit. The parties shall hereinafter be

referred to as plaintiff and defendant as arrayed in the suit.

The facts that led to the filing of the present appeal,

succinctly, are as follows:

The plaintiff and his elder brother i.e., defendant

jointly purchased the suit schedule property admeasuring

56 square yards situated in H.No.9-2-87 (Old No.5868),

Regimental Bazar, Secunderabad, under a registered sale

deed bearing No.491/1993 of SRO, Marredpally and

constructed ground floor and first floor and that they

partitioned the same vide registered Partition Deed

No.2916/1990 of SRO, Marredpally. As per the said

Partition Deed, the plaintiff is the owner of the ground floor

and the defendant is the owner of the first floor with an

undivided share of 28 square yards each with all common

areas, fixtures and fittings. It is the case of the plaintiff that

due to personal necessities, the defendant offered to sell his

first floor portion to the plaintiff for a sale consideration of

Rs.11,50,000/- and that the plaintiff agreed to purchase the

said property and paid advance sale consideration of

Rs.1,00,000/- and as such the defendant executed an

agreement of sale on 10.05.2012 in favour of the plaintiff

agreeing to execute the registered sale deed, within three

months from the date of said agreement of sale, and that the

plaintiff shall pay the balance sale consideration of

Rs.10,50,000/- to the defendant at the time of registration of

the sale deed. It is further stated that when the plaintiff

approached the defendant to pay the balance sale

consideration of Rs.10,50,000/- by way of Demand Draft

bearing No..289348 dated 09.08.2012, drawn on Syndicate

Bank, Rajbhavan road, Hyderabad, the defendant stated

that he will execute the sale deed on 13.08.2012.

Accordingly, the plaintiff paid amounts for stamp duty and

registration charges vide Demand Draft No.145661 drawn

on Syndicate Bank, S.D. Road Branch, Hyderabad, in favour

of SRO, Marredpally, however, the defendant neither

turned up for execution of sale deed nor informed further

date of execution of sale deed. Thereafter, the plaintiff

issued a legal notice on 13.03.2013 to the office and

residential address of the defendant requesting him to

execute the registered sale deed in respect of the suit

schedule property in his favour by receiving the balance

sale consideration, however, the notice sent to the

residential address of the defendant was refused. Hence,

the plaintiff filed the suit for specific performance of

contract dated 10.05.2012 directing the defendant to execute

a registered sale deed in his favour in respect of the first

floor of H.No.9-2-87 (Old No.5868), Regimental Bazar,

Secunderabad, together with undivided share of land

admeasuring 28 square yards in the said property, by

receiving balance sale consideration, and to deliver physical

possession of the property, failing which a registered sale

deed may be executed on behalf of the defendant in favour

of the plaintiff through Court.

The defendant filed his written statement denying all

the material allegations averred in the plaint. It is stated

that due to some strained relations with the plaintiff's

family members, the defendant shifted his residence to a

rented premises and tried to let-out the suit schedule

property, but the family members of the plaintiff did not

allow any tenant to stay in the premises. It is further stated

that on the intervention of elders, the matter has been

settled and the defendant agreed to sell his share i.e., suit

schedule property to the plaintiff for an amount of

Rs.11,50,000/- even though the market value of the property

was around Rs.13,00,000/- and that the defendant entered

into an agreement of sale dated 10.05.2012 with the plaintiff

after receiving advance sale consideration of Rs.1,00,000/-

from him. It is further stated that on 13.08.2012, the

defendant and his family members except one son who is

staying at abroad came to the concerned registration office

for execution of sale deed and stayed there till late hours,

but the plaintiff did not turn up on the pretext that No

Objection from all the family members including the son of

the defendant, who is residing at abroad, was not obtained

for the proposed sale. It is further stated that since the suit

schedule property was self acquired property of the

defendant, none of the family members including his son,

who is staying at abroad had any right or interest in the suit

schedule property and, therefore, No Objection Certificate is

not necessary. In fact, even though the defendant is ready

and willing to execute the registered sale deed in respect of

the property after receiving the balance sale consideration,

the plaintiff failed to perform his part of contract and hence

he is not entitled to any relief and as such the suit is liable to

be dismissed.

During trial, on behalf of the plaintiff, P.Ws.1 and 2

were examined and got marked Exs.A-1 to A-12. On behalf

of the defendants, D.Ws.1 and 2 were examined and no

document was marked.

The trial Court, after considering the entire evidence

available on record and also the submissions made by the

learned Counsel appearing on either side, decreed the suit

of the plaintiff with a direction to the defendant to execute a

registered sale deed in favour of the plaintiff in respect of

the suit schedule property by receiving the balance sale

consideration amount within two months from the date of

judgment, failing which due process of law will be initiated.

Aggrieved by the aforesaid judgment and decree of

the trial Court, the present appeal has been preferred by

defendant, inter alia, contending that the trial Court erred in

passing a decree without considering Ex.P6-Letter of Loan

sanctioned by Syndicate Bank to the plaintiff, in proper

perspective. It is contended that the trial Court failed to see

that as per the evidence of P.Ws.1 and 2, it is evident that

neither the defendant was having any prior notice of fixing

the date of registration on 13.08.2012 by the plaintiff nor the

defendant had given any assurance to the plaintiff that he

would execute the sale deed on the said date. It is further

contended that the trial Court has failed to appreciate the

fact that entire plaint is based upon the alleged assurance of

the defendant that he agreed to execute the sale deed on

13.08.2012 and the plaintiff has failed to prove the said plea

and, therefore, the suit is liable to be dismissed as the

plaintiff failed to complete the sale transaction within the

time stipulated. It is further contended that the trial Court

has not taken judicial notice of events after the impugned

suit agreement was executed (i) formation of New State of

Telangana (ii) conversion of existing Secunderabad railway

station to International Standards etc., and non-availability

of independent houses in the vicinity of the suit property

for purchase and sale etc., It is further contended that the

trial Court failed to pay attention to the fact that during

trial, the plaintiff had vacated the ground floor of the suit

property and was looking for a prospective buyer,

developer or builder, who would give or deposit the

balance amount than the plaintiff would have to deposit, as

he is getting the suit property at a very low price.

Therefore, he requested the Court to allow the appeal by

setting aside the judgment and decree under appeal.

Heard the learned Counsel appearing on either side

and perused the entire material placed on record.

The plaintiff, who was examined as P.W1, filed his

chief-examination-affidavit reiterating the contents raised in

the plaint. In the cross-examination, he stated that EX.B1 is

the Xerox copy of sale deed dated 15.03.1983 under which

he along with the defendant jointly purchased the suit

schedule house premises and both of them jointly

constructed ground floor and first floor of the building; that

under Ex.A2-Partition Deed dated 28.11.1990, they

partitioned the suit schedule property and the ground floor

of the suit schedule property was allotted to the share of the

plaintiff, whereas first floor was allotted to the share of the

defendant and that after seven years of construction of the

house, misunderstandings arose between them. He

admitted in his cross-examination that the defendant locked

his first floor portion of the suit schedule house and started

living separately in a rented house. He denied the

suggestion that when the defendant tried to let out his first

floor, he caused inconvenience to him and his tenants. He

stated that one Ajay and Anjan Kumar were mediated

between him and the defendant and at their instance the

defendant agreed to sell his share of first floor in his favour

under Ex.A1-agreement of sale dated 10.05.2012 and three

months time was stipulated for payment of sale

consideration. He admitted that he did not give any written

notice stating that he is ready to pay the balance sale

consideration and obtain a registered sale deed as per the

terms of Ex.A1, however, he orally informed the defendant

through a mediator. He denied the suggestion that the suit

schedule house is self-acquired property of himself and the

defendant. He denied the suggestion that in spite of the

defendant's readiness to execute the registered sale deed in

terms of Ex.A1, he committed breach of terms and

conditions of Ex.A1. He admitted that a Demand Draft for a

sum of Rs.10,50,000/- has been handed over to the

defendant. He further admitted that he sent a notice to the

defendant in the year 2013, whereas the agreement of sale

was in the year 2012. He denied the suggestion that even

though the defendant along with his family members were

very much present at the Sub Registrar's Office, he did not

perform his part of contract. He stated that the Demand

Draft obtained for the purpose of payment of balance sale

consideration has been cancelled by him and he did not

issue any notice to the defendant prior to cancellation of the

Demand Draft and that the suit schedule house fetches

monthly rent of Rs.3,000/- . He stated in his further cross-

examination that on 13.08.2012 he has shown the Demand

Draft to the defendant at Sub Registrar's office; that one

Sreenu and Radhika were not present at the Registrar's

office, but the remaining family members of the defendant

were present and that since Sreenu and Radhika were not

present at the Registrar's office, the sale deed was not

executed on that day.

One of the attesting witness to Ex.A1-agreement of

sale was examined as P.W.2 and he supported the version of

P.W.1 in all material particulars.

The defendant, who was examined as D.W.1, stated in

his evidence that after purchase of the property in question,

he along with the plaintiff obtained MCH permission in

February, 1990 and demolished the entire old structures and

reconstructed the building comprising ground floor and

first floor in equal extent with equal rights in the land area

of the building. As per Ex.A2-Partition Deed, he became the

absolute owner of the first floor with equal rights in the

land area of the building and there was a single water and

drainage line to the house and the same was used by both

the parties; that there was one common bore-well on the

rear side of the ground floor; that the water from single line

was collected by his family members in small drums and

the same was pumped to the first floor. He also stated that

in 2005, the plaintiff along with his family members shifted

to a rented premises at Dayanand Nagar, Malkajgiri,

Secunderabad and he intend to sell his house including his

property without his consent and also gave an

advertisement in Deccan Chronicle Newspaper dated

16.10.2005 and that he refused to sell his portion of

property. Later, the plaintiff had occupied his ground-floor

portion and started picking up quarrels with them on petty

issues. He further stated that since the family members of

the plaintiff used to harass his family members, they were

constrained to leave their own house i.e., suit schedule

property and residing in a rented house i.e., H.No.11-2-

465/1, Namalagundu, Secunderabad, and thereafter he

tried to lease out the house to other persons. But, the

plaintiff and his family members used to threaten the

proposed tenants and did not allow him to give the house

on lease. He further stated that at the intervention of elders,

the matter was pacified and he entered into an agreement of

sale with the plaintiff, after receiving an amount of

Rs.1,00,000/- towards advance sale consideration, on

10.05.2012, in respect of the suit schedule property for a

total sale consideration of Rs.11,50,000/- and that as per the

agreement of sale, the defendant has to execute the

registered sale deed on or before 10.08.2012 after receipt of

balance sale consideration. D.W.1 further stated that the

plaintiff neither contacted him nor his family members with

regard to fixing of date for registration of sale deed till

10.08.2012. However, on the instructions of plaintiff

through mediators' viz., Ajay Kumar and Anjan Kumar, the

defendant along with his family members were present in

the Registration Office on 13.08.2012 for executing the

proposed sale deed, but the plaintiff did not evince any

interest to pay the balance sale consideration and hence the

sale deed could not be executed. In the cross-examination,

he denied the suggestion that the plaintiff was ready with

the balance sale consideration vide Demand Draft bearing

No.289348 dated 09.08.2012. He admitted in his cross-

examination that he had vacated the suit schedule house as

it is too small to accommodate the growing number of

family members and as such he has taken a separate portion

for rent. He further admitted that he has not issued any

notice to comply with the terms of agreement of sale or

cancelling the agreement of sale and that he denied the

suggestion that since the plaintiff has not violated any terms

of agreement, he has not issued any legal notice to the

plaintiff. He further stated that he is not ready to execute

the sale deed even if the plaintiff deposits the Government

value of the suit schedule property before the Court.

One A.Ajay Kumar, who acted as a mediator between

the parties, was examined as D.W.2 and he stated in his

evidence that the plaintiff has agreed to purchase the suit

schedule property by obtaining bank loan and that the

plaintiff has deposited the sale consideration along with the

registration charges on the name of the defendant by way of

Banker's Deed. He denied the suggestion that the

registration was not done as the family members of the

defendant fail to appear before the Registration Office. He

stated that he does not know whether the plaintiff has

received any notice under Section 459 of HMC Act on

10.06.2017 asking him to vacate the premises as it is in a

dilapidated condition.

The Point that arises for consideration is whether

there is any infirmity or illegality in the judgment of the trial

Court warranting interference of this Court with the

findings recorded by it ?

Admittedly, the plaintiff and defendant being the

natural brothers jointly purchased the suit schedule

property under Ex,B1-registered sale deed dated 15.03.1983

and after obtaining municipal permission they demolished

the old structures and reconstructed the entire building

comprising of ground floor and first floor in equal extent

with equal rights in the land area of the building and

thereafter they got partitioned the property under EX.A2-

Partition Deed dated 28.11.1990. As per the Partition Deed,

the plaintiff is the owner of the ground floor and defendant

is the owner of the first floor together with the undivided

share of 28 square yards. It is also admitted by the parties

that they were living in their respective floors being the

absolute owners quite for some time and when differences

arose between them, the defendant offered to sell his first

floor portion to the plaintiff for a total sale consideration of

Rs.11,50,000/- and the plaintiff agreed to purchase the same

and as such the defendant executed an agreement of sale,

after receiving advance sale consideration of Rs.1,00,000/-

from the plaintiff, on 10.05.2012 in favour of the plaintiff

with a condition to complete the sale transaction within

three months on or before 10.08.2012. The contention of the

plaintiff is that even though he is ready and willing to

perform his part of contract, the defendant did not come

forward to execute the registered sale deed and as such he

filed the suit for specific performance of contract.

No doubt, in a suit for specific performance, the

continuous readiness and willingness on the part of the

plaintiff is a condition precedent to grant the relief of

specific performance. This circumstance is material and

relevant and is required to be considered by the Court while

granting or refusing to grant the relief. If the plaintiff fails

to either aver or prove the same, he must fail. To adjudge

whether the plaintiff is ready and willing to perform his

part of the contract, the Court must take into consideration

the conduct of the plaintiff prior and subsequent to the

filing of the suit along with other attending circumstances.

Admittedly, the plaintiff is an employee of Syndicate

Bank. From a perusal of the evidence of plaintiff (P.W.1), it

is evident that pursuant to Ex.A1-agreement of sale deed,

the plaintiff has applied for housing loan on 21.06.2012 for

Rs.12.00 lakhs and the Syndicate Bank, Jeera Compound

Branch, Secunderabad, sanctioned an amount of Rs.8.05

lakhs under Ex.A6-Letter of Sanction dated 28.07.2012 and

that he got prepared Ex.A10-Demand Draft bearing

No.289348 dated 09.08.2012 drawn on Syndicate Bank,

Rajbhavan Road, Hyderaabad, for an amount of

Rs.10,50,000/- to be paid to the defendant towards balance

of sale consideration. According to the evidence of P.W.1,

since the defendant agreed to execute the registered sale

deed on 13.08.2012, he along with his family members and

P.W.2 went to the Sub Registrar's Office and paid an

amount of Rs.61,800/- for stamp duty and registration

charges vide Ex.A11-Demand Draft bearing No.145661

drawn on Syndicate Bank, S.D. Road Branch, Hyderabad, in

favour of SRO, Marredpally, however, the defendant

neither turned up for execution of sale deed nor informed

further date of execution of sale deed. P.W.2, who is one of

the attesting witness to Ex.A1-agreement of sale, has also

supported the evidence of P.W.1 in all material aspects. He

stated that he has intimated the defendant about the

readiness of the plaintiff to perform his part of contract, but

the defendant did not execute the sale deed in favour of the

plaintiff.

According to the evidence of the defendant (D.W.1),

on the instructions of plaintiff through mediators viz., Ajay

Kumar and Anjan Kumar, he along with his family

members except his son by name Srinivas, who is at USA

and who gave GPA to act on his behalf, were present in the

Registration Office on 13.08.2012 for executing the sale

deed, but the plaintiff did not evince any interest to pay the

balance sale consideration and hence the sale deed could

not be executed. From the admissions of D.W.1 regarding

the family disputes and the offers from third parties for

purchase of the suit schedule property at higher price than

the price agreed with the plaintiff, it can be safely inferred

that the defendant did not evince any interest to sell his

property to the plaintiff. The defendant as D.W.1 in his

cross-examination admitted that he is not ready to execute

the sale deed even if the plaintiff deposits the Government

value of the suit schedule property before the Court. He

further admitted that he has not issued any notice to comply

with the terms of agreement of sale or cancelling the

agreement of sale. From this, it is evident that the plaintiff

has not violated any terms of agreement. Admittedly, the

defendant did not file any suit for cancellation of Ex.A1-

agreement of sale.

Therefore, the aforesaid evidence on record leaves no

scope for doubt that the plaintiff had always been ready and

willing to perform his part of the contract and even got

prepared the demand draft and issued legal notice to the

defendant for completion of formalities, whereas the

defendant did not pay heed to his requests. The finding of

the trial Court that the plaintiff was ready and willing to

perform his part of contract shows the bona fides of the

plaintiff. The trial Court had rightly decreed the suit for

specific performance of contract.

In view of the foregoing discussion, this Court finds

no ground warranting interference with the findings

recorded by the trial Court and the appeal deserves to be

dismissed.

In the result, the appeal is dismissed, confirming the

judgment and decree, dated 14.12.2017 passed in O.S.No.57

of 2013 on the file of the I-Additional Chief Judge, City Civil

Court, Secunderabad. There shall be no order as to costs.

Miscellaneous petitions, if any, pending, shall stand

closed.

________________________ JUSTICE P.SREE SUDHA 06.01.2023 Gsn.