Telangana High Court
C.Satyanarayana Reddy vs Kalvala Madhunaiah on 29 October, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
APPEAL SUIT No. 160 OF 2012
JUDGMENT:
This Appeal is preferred by plaintiff challenging the
Judgement and decree dated 23.01.2012 passed by the learned
III Additional District Judge at Karimnagar in O.S. No. 4 of
2008, whereby and whereunder the said Suit filed for Specific
Performance of the Suit Schedule Land was dismissed.
2. For the sake of conveyance, parties are referred to
as per their array before the trail Court.
3. The suit was filed for specific performance of suit
agreement, dated 21.09.2005 by directing Defendants to
execute Registered Sale Deed in favour of plaintiff in respect of
suit lands measuring Ac.1-19 guntas in Survey No. 616,
Ac.1-05 guntas in Survey No. 617 and Ac. 00-21 guntas in
Survey No. 615/B, totally measuring Acs. 3-05 guntas situated
at Peddabonkuru Village, Peddapally Mandal by receiving
balance sale consideration.
Plaintiff's case is that he is an agriculturist and is a
practicing advocate and resident of Peddapally Town. He was
intending to purchase some lands near Peddapally adjacent to
Rajeev Rahadari and had informed the same to his
acquaintance K. Narendra Chary and others. Defendants,
knowing the same, offered to sell the suit schedule property for
Rs. 6 lacs per acre for which plaintiff accepted and had agreed
to purchase the same. Agreement of sale dated 21-09- 2005 was
executed between the parties for a total sale consideration of
Rs.18,75,000 @ Rs. 6,00,000/- per acre. While so, on
21.09.2005, defendants along with Sri A. Narendra Chary and
Sri Boja Shanker met plaintiff; pursuant to the deliberations, he
paid a sum of Rs.4,75,000/- (Rupees Four Lacs Seventy Five
Thousands Only) and the same was received on the same day by
defendants and executed an Agreement of Sale in favour of
plaintiff. It was agreed by both the parties that balance sale
consideration shall be paid in May 2006 as per physical
measurements of suit schedule lands. In April 2006, plaintiff
asked defendants to fix a date for taking measurements of suit
schedule land so as to enable complete sale transaction in May
2006. However, defendants dodged the issue by giving one
reason or other.
Plaintiff called defendants in June 2006 and
demanded to take steps for measuring the lands, however, as
against the said demand, defendants raised paddy crops in suit
schedule lands, thereby, plaintiff approached the village elders
for settlement of issue. Defendants in the mediation meeting
that took place in the presence of village elders, assured to take
steps for measuring suit schedule lands and it was agreed by
plaintiff that he would pay balance sale consideration on
15.09.2006. However, they have did not take steps and when
plaintiff offered to pay balance sale consideration, defendants
refused to receive the same even after harvesting the standing
crops.
Under the said compulsive circumstances, plaintiff
got issued legal notice dated 26.09.2006 calling upon
defendants to receive balance sale consideration and execute a
Registered Sale Deed in respect of suit schedule lands as per
Agreement of Sale dated 21.09.2005. In response thereto,
defendants got issued reply dated 31.10.2006 admitting
execution of Agreement of Sale and receipt of advance of Rs.
4,75,000/- from plaintiff. The stand taken by defendants
therein is that balance sale consideration was not paid by
plaintiff in time and in terms of Agreement of Sale dated
21.09.2005. The said claim was disputed by plaintiff and it is
further contented by him that defendants are making false
allegations and they violated the terms of Agreement of Sale.
Plaintiff once again persuaded defendants and approached the
Sarpanch of Village and others in September 2007, to speak to
defendants to receive balance sale consideration from plaintiff
and to complete subject sale transaction, but, defendants
refused to receive balance sale consideration and execute
Registered Sale Deed in favour of plaintiff. This refusal is due to
the fact that value of subject lands increased abnormally. In
view of the aforesaid circumstances, plaintiff filed suit seeking
for specific performance of Agreement of Sale dated 21.09.2005.
4. Defendants filed written statement, gist of which is
as under:
The assertion made by plaintiff with regard to
entering into Agreement of Sale through K. Narender Chary,
dated 21.09.2005 is denied. It is also in clear terms that
defendants did not offer alienation of suit schedule lands in the
second week of September, 2005. Defendants contend that Sri
K. Narender Chary and Sri B. Shankaraiah are real estate
dealers and have been in the said business along with plaintiff.
The second daughter of the 1st defendant was to be married and
negotiations were held between the families of the 1st defendant
and the family of Ramesh of Srirampur Village. Since the groom
is well settled in life and is working as lecturer, the 1st
defendant settled the marriage of his second daughter with the
said Ramesh. To raise money towards marriage expenses, he
agreed to sell the subject lands. At this juncture, partners of
plaintiff namely K. Narender Chary and B. Shankariah
approached the 1st defendant in August, 2005 who agreed to
purchase the land at Rs.6 lacs per acre. In view of the urgency
and to meet the marriage expenses, they agreed to sell the land
at Rs.6 lacs per acre though the actual market value is very
high as the same are adjacent to Rajeev Rahadari (Highway).
The aforesaid persons promised to enter into an Agreement of
Sale after consulting with their partner i.e. plaintiff.
It is stated, defendants received Rs.4,75,000/-
towards advance sale consideration and signed the Agreement
of Sale. It is their specific case that alienation of suit schedule
lands is for specific purpose and urgency to use the sale
consideration for meeting the marriage expenses and that it is
clearly understood and agreed to by both the parties that sale
consideration should be paid by May, 2006, failing which sale
agreement stands revoked. Plaintiff and his partners have taken
undue advantage of the 1st defendant being an illiterate person
and as against the specific understanding mentioned supra, by
deceit, had not incorporated default clause in Agreement of Sale
which was drafted in the office of plaintiff. The contents thereof
was not read over to defendants and believing the
representations made by K. Narender Chary and B.
Shankaraiah, they signed the document. Defendants had
challenged the presence of Sri Puli Ranga Reddy at that time
and also during receipt of amounts by defendants and that the
said Puli Ranga Reddy is the henchman of plaintiff and might
have signed in their absence. Plaintiff did not make any demand
in April and June, 2006 calling upon defendants to take steps
for measurement of lands and that no such mediation took
place to resolve the issue in the presence of village elders
thereby there is no promise or assurance made by defendants to
take steps for measurement of suit schedule lands and to
receive balance sale consideration on 15.09.2006 and the said
contention was made by plaintiff for the purpose of filing suit.
Though there is a specific demand made by
defendants with K. Narender Chary and B. Shankariah and so
also with plaintiff, several times in March, April and June 2006
to close the sale transaction immediately so as to enable
defendants to meet marriage expenses, plaintiff was not ready
and willing to pay balance sale consideration and was dodging
the issue, giving excuses that an extent of 8 guntas of land
belongs to one kalvala Rajaiah, S/o. Nambiah and Kavala
Malliah S/o. Nambiah which falls in the middle of suit schedule
lands and since K. Narender Chary, B. Shankariah and plaintiff
are negotiating with the above two individuals for purchase of
the said extent and since they are refusing to sell the same to
plaintiff and his partners, there is some delay in closing the sale
transaction. As such, there is refusal to pay balance sale
consideration by plaintiff till such time the sale transaction with
Rajaiah and Mallaiah is closed positively. Refusal of plaintiff to
pay balance sale consideration on the ground mentioned supra
is breach of contract under Ex. Al and due to non-receipt of sale
consideration from plaintiff, marriage alliance was cancelled for
want of money. Thus, defendants refused to comply with the
legal notice dated 26.03.2006. Plaintiff issued notice on
26.09.2006 to defendants after lapse of time i.e. May, 2006, to
execute sale deed. On 31.10.2006, respondents/defendants
issued reply refusing to register the same as plaintiff was not
ready and willing to perform his part of contract. Defendants
have taken another ground that description of suit schedule
lands is incorrect and there is deliberate wrong description and
plaintiff had created a false situation of measuring suit schedule
lands before making balance sale consideration and closing the
same. However, no such relief that was sought in the suit for
measuring suit schedule lands before completing sale
transaction. It is stated, plaintiff had not shown any valid
reasons to file suit for specific performance after refusal by
defendants to oblige the terms and conditions of Agreement of
Sale in October, 2006; more so, when plaintiff himself is the
practicing Advocate should have filed the suit immediately if he
is really ready with balance sale consideration.
Defendants further contend that suit schedule
property is joint family property of the 1st defendant, sons of the
2nd defendant and one K. Raju and that son of the 1st defendant
did not give consent for selling suit land and suit schedule
property is hit by the provisions of Hindu Succession Act hence,
the suit is not maintainable and the defendants were not
obligated to advance paid by plaintiff under Agreement of Sale
dated 21.09.2005.
5. The trial Court, considering the pleadings in the
suit, had framed the following Issues:
1) Whether plaintiff is entitled for specific performance of agreement
of sale dated 21.09.2005?
2) Whether Suit is in Limitation?.
6. On behalf of plaintiff, three witnesses were
examined; plaintiff himself was examined as Pw-1 and Exs. Al to
7 were marked. On behalf of defendants, two witnesses were
examined, however, no documents were marked.
7. The trial Court, considering the oral and
documentary evidence on record, dismissed the suit vide
judgement under Appeal and directed defendants to pay
Rs.4,75,000/- that was received from plaintiff under Agreement
of sale dated 21.09.2005 along with interest at 6% per anum
from the date of agreement till the date of decree within two
months from the date of decree.
8. Sri O. Manohar Reddy, learned Senior Counsel
appearing on behalf of Ch. Avani Reddy, learned counsel for
appellant contends that the trial Court had erroneously
overlooked the fact that plaintiff was ready and willing to
perform his part of contract pursuant to Agreement of Sale and
there was a clear offer by plaintiff to pay balance sale
consideration for executing registered sale deed in his favour
and it is a clear case of non-cooperation by defendants for
taking measurements of suit schedule lands; hence, it is clear
case of deliberate refusal on the part of defendants to perform
their part of contract. It is further contended that the trial
Court committed an error in holding that as per the terms and
conditions of Agreement of sale, time is essence of contract for
the reason that though plaintiff had approached defendants in
April, June and August, 2006, they did not cooperate with him
and this aspect is proved in the cross-examination of DW1.
According to learned Senior Counsel, before the trial Court,
plaintiff prosecuted suit proceedings in person being a
practicing Advocate. As mentioned supra, on behalf of plaintiff,
three witnesses were examined viz. plaintiff himself as PW-1, Sri
Boja Shanker who is one of the attesting witnesses to
Agreement of Sale as P.W.2 and Sri Jarapelly Vishwanathan
who is a third party to the sale transaction as P.W.3. Two
documents which are very much relevant for adjudication of
suit before trial Court are Exs. A-1 and A-7. Ex. A-1 is legal
notice dated 26.09.2006 and Ex. A-7 is Agreement of Sale dated
21.09.2005. It is the contention of learned Senior Counsel that
plaintiff demonstrated that he is ready and willing to perform
his part of the obligation under Ex. A-7 at all times and in
pursuit of the same, got issued legal Notice under Ex. A-1.
9. Per contra, learned counsel for defendants
Sri M. Amarnath submits that though terms and conditions of
Agreement of Sale were not as per the intent and as per the
terms agreed to during negotiations between the parties on
21.09.2005, Plaintiff, Sri K. Narender Chary and Sri B.
Shankariah by deceit have made Ex. A-7 signed without reading
the contents thereof; admittedly, the 1st defendant is an illiterate
and there was no opportunity to defendants to understand the
contents of Agreement of Sale and believing the representations
of K. Narender Chary and B. Shankariah, they signed the
document, thus it was obtained by fraud and
misrepresentation; hence, the same is not binding on them and
Ex. A-7 is a void document.
10. Considering the aforesaid rival contentions of the
parties, the following points emerge for determination namely:
1. Whether time is essence of contract under Ex. A-7.
2. Whether the impugned judgment and decree is
sustainable?
11. POINT No.1:- Though defendants admit execution
of Ex-A7, they are disputing the contents thereof to the effect of
not mentioning/incorporating the default clause as per agreed
terms and that contents of Ex. A7 were not read over to
defendants; by deceit, plaintiff got Ex. A7 signed by defendants.
Be that as it may, contents of Ex. A7 clearly, in unambiguous
terms, reflect that balance sale consideration shall be paid by
plaintiff by May, 2006. Admittedly, no such payments were
made and there is no such demand that is made by plaintiff
calling upon defendants to receive balance sale consideration
before the said period. Any act of demand by plaintiff should
have been done before May, 2006. Issuance of legal notice vide
Ex. Al is after the stipulated period mentioned in Ex. A7. Thus,
the demand made by plaintiff is beyond the agreed period of
performance of contract.
12. In K.S. Vidyanadam v. Vairavan 1, the Hon'ble
Supreme Court held that grant of relief of specific performance
is discretionary and the Court is not bound to grant it. It was
(1997)3 SCC 1
further held that though time is not an essence to a contract
relating to transfer of property, such contract need to be
completed within a reasonable time period. Thus the time
element cannot be completely ignored. It is settled principle of
law that in suit for specific performance, the Court while
exercising discretion, should bear in mind that when parties
prescribed a time for taking certain steps or for completion of
transaction, that must have some significance. Therefore,
time/period prescribed cannot be ignored. The courts will apply
greater scrutiny and strictness when considering whether
purchaser was ready and willing to perform his part of contract
and every suit for specific performance need not be decreed
merely because it is filed within the period of limitation, by
ignoring time limits stipulated in the agreement. Accordingly,
this issue is answered against plaintiff.
13. POINT No.2:- It is an admitted fact that there is
privity of contract between plaintiff and defendants to the suit
vide Ex. A7. On the face of record, it is apparent that Ex. A7 is
handwritten on Non-Judicial Stamp papers dated 19.09.2005
purchased by plaintiff for the purpose "Self". Narration of facts
in plaint and co-relating the date of purchase of stamp papers
evidences that even before there was meeting between parties
for sale of subject lands, stamp papers were purchased. As on
the date of purchase of subject stamp papers, there was no
privity of contract between the parties. This aspect shows that
plaintiff was having a pre-conceived intention of entering into a
sale agreement with defendants at the first given opportunity
and thereafter, defendants were made to approach him through
Sri A. Narender Chary and Shankariah. It also creates suspicion
over the subject transaction between the parties. From the
contents of Ex. A-7, there is no mention that contents thereof
were read over to defendants, who, having understood the same,
signed Ex. A-7.
14. It is the specific case of defendants in the written
statement that boundaries mentioned in Ex. A-7 are not
matching with that of geographical position of suit land. Plaintiff
did not take any steps to rectify the same nor rebutted the said
stand of defendants. Onus is on plaintiff to prove the contents of
plaint together with documentary evidence. Plaint is hit by non-
compliance of Order VII CPC as plaintiff has not filed the
documents in his support to show that defendants instead of
responding to the demands of plaintiff for measurements of
schedule lands, had raised paddy cultivation therein. To
support the said contention, absolutely, no effort was made by
him by leading evidence; thereby, an adverse inference has to be
drawn against the conduct of plaintiff.
15. Agreement of Sale dated 21.09.2005 is governed by
the provisions of the Specific Relief Act prior to the amendment
of 2018. Section 16 (c) envisages that it is the discretion of the
trial Court to either grant relief of specific performance or reject
the same based on the circumstances of case. In the instant
case, the trial Court, considering the circumstances and status
of the parties to the suit and after appreciating the evidence,
dismissed the suit with a clear direction to defendants to refund
sale consideration of Rs. 4,75,000/- to plaintiff. Furthermore,
plaintiff had maintained complete silence of his readiness /
willingness in performing his part of obligations under Ex. A7 in
the plaint and so also in the evidence. In view of the discussion
made supra, this Court is of the view that Section 16(c) of the
Specific Relief Act is applicable if plaintiff is ready and willing to
perform the contract as per the time mentioned in Ex. A7. The
said view of this Court is bolstered by the fact that specific
performance can only be granted when essential terms of
contract are not violated in terms of Section 16(b). In the case
on hand, plaintiff did not demonstrate his readiness to complete
Ex. A7 all through. Considering the pleadings and evidence,
more specifically the admission on the part of PW2 in the chief-
examination that the 1st defendant is an illiterate, it can be
safely concluded by this Court that Ex. A7 was signed by
defendants without knowing the contents thereof. That apart,
the conduct of plaintiff in not demanding defendants to receive
balance sale consideration within the stipulated time under the
agreement is fatal to the case of plaintiff.
16. Plaintiff filed suit for specific performance being OS
No. 4 of 2008 on the file of the III Additional District Judge at
Karimnagar after issuance of reply notice dated 31-10-2006 (Ex.
A4), that means after refusal, plaintiff chose to file the said suit
on 20-02-2008 after waiting for a period of 1 year 4 months.
Though the suit is within limitation under the provisions of the
Limitation Act, the conduct of plaintiff does not warrant
granting equitable relief of specific performance under Ex. A7.
17. In view of the above discussion, this Court is of the
view that dismissal of suit vide judgement and decree dated
23.01.2012 in O.S.No.4 of 2008 is not an error and this Court is
not inclined to interfere with the same. The Appeal therefore,
fails and the same is liable to be dismissed.
18. The Appeal Suit is accordingly, dismissed. No costs.
19. Consequently, miscellaneous Applications, if any
shall stand closed.
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NAGESH BHEEMAPAKA, J
29th October 2024
ksld
