Guttula Arun Kumar vs S. Venkateswar Rao
2023 Latest Caselaw 3516 Tel

        THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

                   APPEAL SUIT No.672 of 2010

JUDGMENT:

This appeal suit is filed against the Judgment and decree

dated 15.11.2007 in O.S.No.853 of 2007, passed by the learned

Principal Senior Civil Judge, R.R.District.

2. The appellant/plaintiff filed a suit vide O.S.No.853 of

2007 against the respondent/defendant seeking specific

performance of Agreement of Sale. The trial Court got examined

P.W.1 and marked Exs.A1 to A8 on behalf of the plaintiff and

the respondent/defendant remained exparte in the suit, but the

trial Court observed that appellant/plaintiff prayed for

alternative relief to return the amount of Rs.1,00,000/- with

interest @ 18% per annum and accordingly decreed the suit

directing the respondent/defendant to pay Rs.1,00,000/- to the

appellant/plaintiff with future interest @ 6% per annum from

the date of suit till realization. Aggrieved by the said Judgment

and decree, plaintiff therein preferred the present appeal.

3. The learned Counsel for the appellant/plaintiff contended

that the Judgment of the trial Court is erroneous, the

respondent/defendant never contested the matter and even

after receiving the legal notice, respondent/defendant failed to

give reply. He further contended that it is highly impossible for

the appellant/plaintiff to own a property for the value of sale

consideration as agreed under the sale agreement in view of

steep escalation of real estate prices. Therefore, awarding of

alternative relief is liable to be set aside.

4. The appellant herein contended that respondent was the

absolute owner and possessor of a residential flat bearing

No.405 (A - Block) in Third Floor of Sashank residency

consisting of super built-up area of 850 Sq.ft including common

area along with undivided land share of 25 Sq.yrds out of 1090

Sq.yrds, constructed on plot No.62 in Sy.No.359/1 & 359/3

situated at Sardar Patel Nagar, Moula-Ali under Malkajgiri

Municipality, Ranga Reddy District. The respondent/defendant

due to his personal necessities offered to sell the suit schedule

property for a total sale consideration of Rs.6,50,000/- and the

same was accepted by him. He paid a sum of Rs.1,00,000/- i.e.,

Rs.95,000/- through cheque bearing No.505905 dated

01.11.2006 and Rs.5,000/- by way of cash to the

respondent/defendant on 30.10.2006 towards part sale

consideration. The respondent/defendant entered into an

Agreement of Sale with him on 01.11.2006 and also

acknowledged the said part sale consideration under a separate

receipt on the same day. The appellant/plaintiff agreed to pay

the balance sale consideration of Rs.5,50,000/- within a period

of 90 days i.e., by 29.01.2007. Thereafter, appellant tried to

reach the respondent over telephone, but respondent was

avoiding the same. Hence, he got issued legal notice on

23.01.2007, but it was returned with an endorsement "Not

claimed". As he was ready and willing to perform his part of

contract, he filed the suit for specific performance.

5. Appellant filed the Agreement of Sale under Ex.A1, Ex.A2

was the receipt issued by the respondent for receiving

Rs.1,00,000/- by way of cheque and cash, and the remaining

balance was agreed to be paid within three months. Ex.A3 was

the legal notice issued by the appellant on 23.01.2007, in which

he mentioned that appellant approached the respondent with

balance sale consideration of Rs.5,50,000/- on 07.01.2007 and

requested him to clear the bank loan as agreed under clause-3

of the agreement and to execute the registered sale deed, but

the defendant postponed the same on one or other pretext and

failed to perform his part of obligation and appellant was always

ready to perform his part of obligation, but the said notice was

returned with an endorsement "Not claimed". Appellant had also

filed his bank statement under Ex.A8 to show the payment of

Rs.95,000/- to the respondent.

6. Appellant/plaintiff was examined as P.W.1 and he

reiterated the contents of the plaint in his evidence. Notices

were served upon the respondent/defendant and an Advocate

also filed Vakalat on his behalf, but he has not filed written

statement, as such the respondent/defendant was set exparte

on 25.10.2007, and after recording the evidence of P.W.1,

Judgment was passed by the trial Court. The appellant herein

filed the suit for specific performance of Agreement of Sale. He

had also filed the said Agreement of Sale in support of his

contention and apart from that he had filed Ex.A2 receipt issued

by the respondent. As per the agreement, the balance amount

has to be paid within three months. In the legal notice, it was

specifically mentioned that appellant/plaintiff approached the

respondent/defendant with the balance sale consideration and

requested him to clear the bank loan, but he postponed the

same on one or other pretext, as such appellant filed the suit for

specific performance and in view of the oral and documentary

evidence, he proved his case, but the trial Court somehow

mentioned that there was alternative relief for return of

Rs.1,00,000/- with interest and accordingly directed the

respondent/defendant to return Rs.1,00,000/- without

decreeing the suit for specific performance. The Judgment of the

trial Court is patently erroneous. The respondent/defendant in

spite of engaging the Counsel, remained exparte and not even

filed written statement even after granting sufficient opportunity

and it clearly shows that he avoided contesting the matter

willfully, but the trial Court instead of granting the main relief

for specific performance of Agreement of Sale, granted

alternative relief. Therefore, this Court finds it is just and

reasonable to set aside the Judgment of the trial Court.

7. In the result, the appeal suit is allowed, setting aside the

Judgment and decree dated 15.11.2007 in O.S.No.853 of 2007

passed by the trial Court and the respondent is directed to

execute the registered sale deed in favour of the appellant by

receiving the balance sale consideration within one month from

the date of receipt of a copy of this Judgment. If he fails to do

so, appellant is at liberty to approach the Court for execution of

the sale deed in his favour. There shall be no order as to costs.

Miscellaneous petitions pending, if any, shall stand closed.

_________________________ JUSTICE P.SREE SUDHA DATE: 02.11.2023 tri

THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

APPEAL SUIT No.672 of 2010

DATE: 02.11.2023

TRI