J. Kashi Reddy vs G. Muralidhar Reddy
2023 Latest Caselaw 3507 Tel

          HONOURABLE SMT. JUSTICE P.SREE SUDHA

                APPEAL SUIT No.1006 of 2016

JUDGMENT:

This appeal is filed by the defendant aggrieved by the

judgment and decree, dated 06.09.2016, passed in O.S.No.85

of 2014 on the file of the Principal District Judge,

Mahabubnagar.

2. Appellant herein is defendant and the 1st respondent

herein is plaintiff in the suit. The parties will be referred to

as arrayed before the trial Court.

3. The backdrop of the case leading to filing of this

appeal is as under:

One Muralidhar Reddy (Plaintiff) filed the suit against

one J.Kashi Reddy (defendant) for specific performance of

agreement of sale dated 08.07.2013.

Brief averments of the plaint are as under:

Defendant is the absolute owner and possessor of the

agricultural land in Sy.No.31/AA admeasuring Ac.1.19 gts.

PSS, J A.S.No.1006 of 2016

and Sy.No.31/E admeasuring Ac.1.20 gts., totally

admeasuring Ac.2.39 gts., situated at Kadthal village,

Amangal Mandal, Mahabubnagar District, which is

described as suit schedule property. Plaintiff and defendant

have good acquaintance and they have maintained good

relations. Plaintiff, defendant and his own brother dealt

with some land transactions jointly and regarding the said

transactions, accounts were settled between them in the

year 2008. As per the settlement of accounts, defendant

agreed to pay Rs.28,00,000/- to the plaintiff and that

defendant issued three cheques for Rs.9,00,000/-,

Rs.9,50,000/- and Rs.9,50,000/- respectively drawn on State

Bank of India, Edi Bazar Branch, Hyderabad, by putting the

date as 16.01.2009 and when the said cheques were

deposited by the plaintiff in his banker, the same were

returned with an endorsement 'payment stopped by the

defendant'. Thereafter, plaintiff filed complaint under

Section 138 of Negotiable Instrument Act before the Special PSS, J A.S.No.1006 of 2016

Magistrate, Hasthinapuram, Ranga Reddy District, and later

the matter was compromised on 08.07.2013 and the

defendant has agreed to pay Rs.25,00,000/- to the plaintiff.

As per the terms of compromise, defendant agreed to pay

Rs.1,00,000/- on 05.08.2013 and the remaining amount of

Rs.24,00,000/- will be paid within 14 months in two

instalments from the date of compromise. On the date of

compromise i.e., 08.07.2013, the defendant executed an

agreement of sale in favour of plaintiff in respect of the suit

schedule property. The plaintiff, believing the words of the

defendant with utmost faith, settled the matter and

withdrawn the criminal complaint in C.C.No.80 of 2013 on

08.07.2013 and that they filed a joint memo before the V-

Special Magistrate with clear terms. As per the said terms,

the defendant agreed to pay Rs.1,00,000/- on 05.08.2013,

RS.12,00,000/- on 20.01.2014 and remaining Rs.12,00,000/-

on 20.08.2014. It is further stated that clause No.4 of the said

joint memo clearly indicates that the defendant executed an PSS, J A.S.No.1006 of 2016

agreement of sale on 08.07.2013 in favour of plaintiff and in

case, the defendant fails to pay Rs.25,00,000/- as agreed

upon, the plaintiff was given a right to enforce the

agreement of sale dated 08.07.2013. Subsequently, the

defendant did not repay Rs.25,00,000/- as agreed and

instead got issued a legal notice with false allegations on

13.03.2014, to which the plaintiff gave a reply and also

requested the defendant to pay the said amount of

Rs.25,00,000/- or else execute a registered sale deed in

respect of the suit schedule property. The defendant

postponed the matter and finally on 05.10.2014, the plaintiff

approached the defendant and requested him to execute the

sale deed or make payment, however the defendant refused

the same and threatened him with dire consequences.

Subsequently, the plaintiff got issued a notice on 11.10.2014

demanding the defendant to execute sale deed within a

week, but he did not respond to the said notice. Therefore,

the plaintiff filed the suit for specific performance of PSS, J A.S.No.1006 of 2016

agreement of sale directing the defendant to execute a

registered sale deed in respect of the suit schedule property

in favour of the plaintiff as per terms of agreement of sale

dated 08.07.2013 and in case the defendant fails to comply

with the direction of the Court, the same may be enforced

through Court. The plaintiff also sought the alternative

relief of refund of Rs.25,00,000/- along with interest at the

rate of 24% per annum.

4. In the written statement, the defendant admitted his

ownership and possession over the suit schedule property.

It is stated that plaintiff, defendant's brother Srikanth

Reddy and one Guduru Bhaskar Reddy did real estate

business jointly and plaintiff purchased land from the said

Bhaskar Reddy under a registered sale deed dated

30.01.2006. After purchase of the property, plaintiff created

disputes and consequently, plaintiff executed sale deed in

favour of said Srikanth Reddy and Bhaskar Reddy on

14.08.2007 and that in the said deal, defendant's brother and PSS, J A.S.No.1006 of 2016

Bhaskar Reddy fell due some amount to the plaintiff. Then,

defendant's brother Srikanth Reddy, Prasanth Reddy and

Guduru Bhaskar Reddy being owners of some other land

through GPA holder, namely, G.Rajender Reddy, have

entered into an agreement of sale dated 23.08.2007 in respect

of land in Sy.Nos.141, 141/1. 141/2 & 142 of Dasarlapally

village and the said Rajender Reddy received the entire

amount, but not accounted the amount and then again

disputes arose in between the plaintiff, Srikanth Reddy and

Bhaskar Reddy. After settlement of accounts, a sum of

Rs.28 lakhs was found difference among them and that the

plaintiff claimed the said amount from defendant's brother

and the said Bhaskar Reddy and they have agreed to pay

the same on or before 16.01.2009, but the plaintiff demanded

guarantee of a third person. Therefore, the defendant stood

as a guarantor and that the defendant's brother Srikanth

Reddy obtained three blank cheques dated 16.01.2009 from

the defendant and also his signature on a document named PSS, J A.S.No.1006 of 2016

as 'personal loan agreement' informing him that the same

will be kept as security with the plaintiff and it will be

returned after payment of amount by them. Thus, the

defendant is not due of amount of Rs.28 lakhs as claimed by

the plaintiff. Defendant specifically denied the averments

that he has agreed to pay Rs.25 lakhs to the plaintiff and the

terms of compromise and also execution of agreement of

sale as pleaded by the plaintiff.

5. Defendant also filed a counter-claim as a part of the

written statement stating that the plaintiff misused the

cheques issued by the defendant and filed C.C.No.80 of

2013 and at the instance of defendant's brother Srikanth

Reddy and one G.Bhaskar Reddy, an understanding was

arrived between them and plaintiff and consequently the

plaintiff withdrew the case. It is further stated that the

plaintiff again obtained agreement of sale from the

defendant on 08.07.2013. The plaintiff also executed an

agreement dated 08.07.2013 in favour of the defendant PSS, J A.S.No.1006 of 2016

stating that the agreement of sale executed by the defendant

in his favour in respect of suit property for due amount of

Rs.24 lakhs and the said amount has to be paid within 14

months from the date of agreement. In the said agreement,

it is further stated that within the said time, the loan amount

of Shriram Finance has to be cleared and on payment of

Rs.24 lakhs, the agreement executed by the defendant will

be returned. In the said agreement, it was also mentioned

that in case of failure of defendant to pay the said amount

within the stipulated time, the plaintiff has to pay cost of the

suit land on prevailing market rate and after deduction of

due amount of Rs.24,00,000/-, the plaintiff has to pay the

remaining amount and get the land registered in his name.

The agreement executed by the plaintiff was scribed by one

A.Veeraiah, Ex-President, Mandal Praja Parishad, Amangal,

in the presence of both parties. However, the plaintiff

suppressed the said agreement and filed the suit with false

allegations. It is further stated that the plaintiff deliberately PSS, J A.S.No.1006 of 2016

violated the terms and conditions of agreement dated

08.07.2013. The defendant is ready to sell his land in

Sy.No.31/AA and 31/E admeasuring Ac.2.39 gts. at the

prevailing market rate and that as on the date of issuance of

notice and reply notice in the month of October, 2014, the

prevailing market rate of the said land was about

Rs.44,00,000/- per acre. But, after exchange of notices, the

Government proposed to establish Pharmacity at Mucherla

village, which is nearer to the suit land and the present

market rate is about Rs.60 to 70 lakhs per acre and that the

defendant is ready to sell his land at the said market value.

Therefore, it is prayed to dismiss the suit and to direct the

plaintiff to purchase the suit property at the prevailing

market value and after deduction of due amount to pay the

remaining sale price and obtain registered sale deed.

6. During trial, the plaintiff examined himself as P.W.1

and got marked Exs.A-1 to A-8. The defendant examined

himself as D.W.1 and got marked Ex.B1.

PSS, J A.S.No.1006 of 2016

7. The trial Court, after considering the entire evidence,

both oral and documentary, and the respective contentions

of the learned Counsel appearing on either side, while

dismissing the counter-claim of the defendant, decreed the

suit with costs directing the defendant to execute a

registered sale deed in favour of the plaintiff or his nominee

in respect of the suit schedule property and put the plaintiff

in possession of the property, failing which the plaintiff is at

liberty to obtain the same through process of law.

8. 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 failed to

appreciate the evidence on record and erred in decreeing

the suit and also rejecting the counter-claim of the

defendant. The trial Court erred in arriving to the

conclusion that the agreement to purchase the land at the

market rate has no consensus ad idem. The burden of proof

heavily rests upon the plaintiff to prove the contents of PSS, J A.S.No.1006 of 2016

Ex.B1-agreement executed by him by adducing cogent

evidence, as he admitted his signature on Ex.B1 and part of

its contents. The trial Court ignored the fact that Ex.A1 and

Ex.B1 were executed on the same day and at the same time

in the presence of witnesses and both the documents were

scribed by the same person viz., A.Veeraiah, who is the

former President of Mandal Praja Parishad, Amangal

Mandal. The plaintiff failed to examine neither the attestor

nor scribe of the document. The trial Court failed to

appreciate the fact that the present market rate of suit

property is Rs.44,00,000/- per acre and the subject matter of

suit agreement is Ac.2.39 gts. and thus the total valuation of

suit property is more than Rs.1,20,00,000/-. But, Ex.A1- suit

agreement is only for Rs.24,00,000/-. It is further contended

that as per Ex.B1-agreement dated 08.07.2013, 14 months

time was given for payment of Rs.24,00,000/- and loan

amount of Shriram Finance has to be cleared and then the

agreement will be returned. It is further contended that the PSS, J A.S.No.1006 of 2016

trial Court erred in noticing that the plaintiff suppressed the

existence of Ex.B1-agreement dated 08.07.2013 and filed the

suit for specific performance, which is a discretionary relief.

The agreements Exs.A1 and B1 are part and parcel of one

transaction only, but the plaintiff suppressed the said fact in

his pleadings and as such the plaintiff is not entitled for

discretionary relief of specific performance of agreement of

sale, but the trial Court ignored the said fact and decreed

the suit erroneously. Therefore, he requested the Court to

set aside the impugned judgment and decree of the trial

Court.

9. Learned Counsel for the appellant/defendant relied

upon a decision of the High Court of Andhra Pradesh in

D.Vijayalakshmi vs. T.K.Vijay Kumar 1, wherein it was held as

under:

"The relief of specific performance is equitable discretionary in nature. It can be granted only when the Court is satisfied that not only the plaintiff has proved the agreement, but also that

2012 (1) ALD 759 PSS, J A.S.No.1006 of 2016

equities are in his favour. Even where, the transaction is proved, the Court can decline the relief in case it finds any abnormalities in the transaction or feels that equity lies in denying the relief. The discretion no doubt has to be guided by proper reasons and cannot be exercised in an arbitrary manner".

10. He also relied upon a decision of the High Court of

Andhra Pradesh in Pandit Rao and others vs. K.Damodar Rao

and others 2, wherein it was held as under:

"Section 20 is another important provision, under the Specific Relief Act. It delineates the jurisdiction of the Court, in the matter of granting the relief of specific performance of a contract. According to this provision, the jurisdiction to grant such a relief is discretionary and the Court is not bound to grant such a relief, merely because it is lawful, to do so. A note of caution is added to the effect that the discretion shall not be exercised an arbitrary manner, but on sound and reasonable manner, guided by judicial principles. The other provisions and explanations incorporated in it, provide an ample guidance in this regard. One of the known principles is that the grant of relief of specific performance must not result in an unfair and undue advantage to the plaintiff.

2005 (5) ALD (AP) 646 PSS, J A.S.No.1006 of 2016

11. Learned Counsel for the 1st respondent/plaintiff

mainly contended that counter-claim of the

appellant/defendant was dismissed by the trial Court and

no appeal was preferred by the defendant against it and as

such the appeal preferred by the appellant/defendant

against the relief of specific performance of agreement of

sale, is not maintainable. In support of the said contention,

he relied upon a decision of the High Court of Himachal

Pradesh at Shimla in Ramesh Chand and others vs. Om Raj and

others 3, wherein it was held as under:

"42. The principles deducible from the afore-discussed law can be summarized as follows:-

(i) When two suits are consolidated and tried together with common issues framed and common evidence led by the parties, resulting in a common judgment and decree, the same can be subjected to challenge by way of a single appeal at the instance of the aggrieved party;

(ii) Where a single appeal is filed questioning the judgment and decree passed in two suits, which were consolidated and

MANU/HP/1047/2022 PSS, J A.S.No.1006 of 2016

decided by a common judgment, decision of such single appeal, by a common judgment, reversing or modifying the claim in one suit out of the two, can be challenged by the aggrieved party also, in a single appeal.

(iii) When two suits though not consolidated but are decided by a common judgment, resulting into preparation of two separate decrees, the aggrieved party would be required to challenge both of them by filing separate appeals;

(iv) When both the suit and the counter claim are decreed by a common judgment, regardless of whether separate decree has been prepared in the counter claim, both would be required to be challenged by separate appeals;

(v) In a case where two separate appeals are required to be filed against judgment of the suit and the counter claim and if appeal is filed only against one and not against the other, non filing of appeal against such judgment and decree would attach finality thereto and would attract not only the principle of res-judicata but also waiver and estoppal and the judgment and decree not appealed against would be taken to have been acquiesced to by the party not filing appeal;

(vi) When however, two appeals are filed against a common judgment passed by the trial Court, both by the plaintiff and the defendant, and are disposed of by the first appellate Court by modifying/reversing/affirming judgment of the trial Court, the aggrieved party, would be required to challenge both by two PSS, J A.S.No.1006 of 2016

separate appeals, in absence of which, non-filing of appeal against one shall attract bar of the principles of res-judicata against another.

(vii) Where more than one appeals are required to be filed or are filed and one or more of them are dismissed for default, delay or any other similar reason, any such situation would attract res judicata and such dismissal would satisfy the requirement of appeal being heard and finally decided on merits "in a former suit" for the purpose of attracting principles of res judicata.

12. Heard the learned Counsel appearing on either side

and perused the entire material available on record.

13. The Point that arises for consideration is whether the

impugned judgment of the trial Court is on proper

appreciation of facts or not?

14. The plaintiff filed the suit against the defendant for

specific performance of agreement of sale. In his cross-

examination, the plaintiff, who was examined as P.W.1,

stated that he was not ready to accept the offer of the

defendant to purchase the land on the prevailing market

rate by deducting Rs.24,00,000/-. He admitted that on PSS, J A.S.No.1006 of 2016

08.07.2013, he has executed Ex.B1-agreement in favour of

the defendant, but denied the last three and half lines from

the words 'paina thelipina' to the end in the said agreement.

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

his cross-examination that on 08.07.2013, he has executed

Ex.A1-agreement of sale by agreeing to the terms therein

and he did not get the mortgage with Shri Rama Finance

discharged. He also admitted that Ex.B1 was executed by

the plaintiff in his favour and under Ex.B1, he agreed to pay

Rs.24,00,000/- to the plaintiff within 14 months and then the

plaintiff will return Ex.A1 to him. He also stated that on the

date of execution of Ex.A1, the market rate was

Rs.44,00,000/- per acre and even as per the Government

announcement of Pharmacity by the side of Mucherla I.T.

Park, the market value of the land was Rs.70,00,000/- per

acre and that if he sells the land covered by Ex.A1, he can

get more than two crores.

PSS, J A.S.No.1006 of 2016

15. Initially, the defendant was due to pay a sum of

Rs.28,00,000/- to the plaintiff with regard to land

transactions between them and for that the defendant has

issued three cheques and when the said cheques were

presented in the bank for collection, they were dishonoured

with an endorsement 'payment stopped by the defendant'

and as such the plaintiff filed a criminal complaint under

Section 138 of the N.I. Act. Thereafter, in view of the

compromise arrived at between the parties for payment of

Rs.24,00,000/-, an agreement of sale dated 08.07.2013 under

Ex.A1 was executed by the defendant in favour of the

plaintiff in respect of the suit schedule property. Since the

defendant did not repay the said amount despite repeated

requests, the plaintiff got issued Ex.A2-legal notice dated

11.10.2014 demanding the defendant to execute a registered

sale deed in his favour in respect of the suit schedule

property. Though it was stated that a reply was given to the PSS, J A.S.No.1006 of 2016

said notice, it was not filed by the defendant before the

Court.

16. Ex.A1-agreement of sale dated 08.07.2013 was

executed by the defendant in favour of the plaintiff in

respect of the suit schedule property, in which clause

Nos.14 and 15 reads as follows:

14. "That the schedule property was mortgaged with Srirama Finance by the vendor, wherein the vendor agreed to get the clearance from the said Finance Authority within one year from the date of this agreement and he shall get ready for registration of the schedule property on the name of the vendee or his nominee or nominees.

15. That the vendor fails to produce the clearance certificate from the local bank authorities, then the vendor shall return the paid amount to the vendee along with the damages. After paying back the amount, the vendee shall hand over this agreement to the vendor."

17. In view of the compromise entered into between

the parties, the criminal case was withdrawn as per Ex.A5-

order dated 08.07.2013 in C.C.No.80 of 2013 on the file of the PSS, J A.S.No.1006 of 2016

V-Special Magistrate, Hasthinapuram, L.B. Nagar, Ranga

Reddy District. A joint Memo under Ex.A6 was also filed

by both the parties, in which, it was stated that the accused

(defendant) agreed to pay Rs.25,00,000/- to the complainant

(plaintiff) with a condition to withdraw the complaint, out

which Rs.1,00,000/- has to be paid on 05.08.2013;

Rs.12,00,000/- on 20.01.2014 and the remaining amount of

Rs.12,00,000/- on 20.08.2014. In the said joint memo, it was

also mentioned that the defendant has also executed an

agreement of sale in respect of the suit schedule property

towards security of the said balance amount and if the

defendant fails to pay the said installments, the plaintiff is

entitled to implement the said agreement of sale by

initiating the relief of specific performance before the Court

of law. On the same day of suit agreement i.e., on

08.07.2013, the plaintiff executed Ex.B1-agreement in favour

of the defendant, in which it was stated that the defendant

was due to a sum of Rs.24 lakhs to the plaintiff and it was PSS, J A.S.No.1006 of 2016

payable within 14 months from the date of agreement and

in the said period of 14 months, loan amount of Shriram

Finance has to be cleared and on payment of Rs.24 lakhs,

the agreement of sale executed by the defendant will be

returned. In Ex.B1, it was mentioned that in case the

defendant fails to pay the said amount within the stipulated

time, the land should be registered in favour of the plaintiff

as per the market value. The contention of the defendant is

that he is ready and willing to execute the registered sale

deed in favour of the plaintiff at the prevailing market

value. The plaintiff (P.W.1) in his cross-examination stated

that the last three and half lines in Ex.B1-agreement

executed by him in favour of the defendant were added

subsequently by the defendant. However, the plaintiff

clearly stated that he is not willing to purchase the suit

schedule property at the present market value. Admittedly,

there was variance regarding the present market value of

the land and the sale consideration of Ex.A1-agreement of PSS, J A.S.No.1006 of 2016

sale dated 08.07.2013 executed by the defendant in favour of

the plaintiff. The trial Court rightly dismissed the counter-

claim put forth by the defendant as it is not made out.

Admittedly, no appeal has been preferred against the

rejection of the counter-claim of the defendant. Clause (4) of

Ex.A6- joint memo clearly indicates that the defendant has

also executed Ex.A1-agreement of sale dated 08.07.2013 in

favour of the plaintiff in respect of the suit schedule

property towards security of the balance amount and if the

defendant fails to pay the said amount, the plaintiff is

entitled to implement the said agreement of sale by

initiating the relief of specific performance before the Court

of law. As the defendant failed to pay the amount of

Rs.24,00,000/- within the stipulated time, he was directed to

execute the registered sale deed in favour of the plaintiff in

respect of the suit schedule property. The defendant, who

was examined as D.W.1, admitted in his cross-examination

that on 08.07.2013, he has executed Ex.A1-agreement of sale PSS, J A.S.No.1006 of 2016

by agreeing to the terms and conditions therein. As per

Ex.A1-agreement of sale, the trial Court had rightly decreed

the suit of the plaintiff. Therefore, this Court finds no

reason to interfere with the impugned judgment of the trial

Court as it does not suffer from any infirmity or illegality.

18. Accordingly, the Appeal Suit is dismissed, confirming

the judgment and decree, dated 06.09.2016, passed in

O.S.No.85 of 2014 on the file of the Principal District Judge,

Mahabubnagar. There shall be no order as to costs.

Miscellaneous petitions, if any, pending, shall stand

closed.

_______________________ JUSTICE P.SREE SUDHA 02.11.2023 Gsn.