Telangana High Court
V. Manohar Kumar vs T. Sairam on 25 April, 2025
THE HON'BLE SMT. JUSTICE RENUKA YARA
APPEAL SUIT No.655 of 2019
JUDGMENT:
Heard Sri Peddapally Sai Kiran, learned counsel for the
appellants/defendant Nos.2 and 3 and Sri B. Nalin Kumar, learned
counsel for respondent No.1/plaintiff.
2. This is an appeal preferred by the appellants/defendant
Nos.2 and 3 aggrieved by the judgment and decree of the learned
Judge, Family Court-cum-VII Additional District Judge, Medak at
Sangareddy (for short 'the learned Judge'), dated 19.09.2019 in
O.S.No.55 of 2011, whereby, the suit filed for directing the
appellants and respondent Nos.3 to 5 to execute registered sale deed
in favour of respondent No.1/plaintiff in respect of the property
i.e. Plots bearing Nos.165 and 166 admeasuring an area of 366
sq.yds. in Sy.Nos.249 and 250 situated at Isnapur Village,
Patancheru Mandal, Medak District (for short 'the suit schedule
property' has been decreed.
3. For the sake of convenience, the parties in this appeal are
referred to as they are arrayed in O.S.No.55 of 2011.
Facts of the case:
4. The suit was filed by the plaintiff seeking relief of specific
performance of Agreement of sale dated 26.07.2008/Ex.A1 and to
declare the sale deeds i.e. document bearing No.3398 of 2009, dated
23.04.2009/Ex.A7 executed by defendant No.1 in favour of
defendant No.2 and document bearing No.9971 of 2009, dated
05.11.2009/Ex.A8 executed by defendant No.2 in favour of
defendant No.3, as null and void.
5. Initially the suit was filed against defendant Nos.1 to 3.
During the pendency of the suit, defendant No.1 died and his legal
representatives were brought on record as defendant Nos.4 to 6.
6. Defendant No.1 is the owner of the suit schedule property
having purchased it from defendant No.2 under a registered sale
deed vide document No.10083 of 2008, dated 17.07.2008/Ex.A2.
Defendant No.1 due to financial needs offered to sell the suit
schedule property for a total sale consideration of Rs.11,00,000/-.
Consequently, defendant No.1 requested the plaintiff to pay
Rs.10,00,000/- to discharge loan. On the basis of the agreement
reached between the plaintiff and defendant No.1, a Sale
Agreement/Ex.A1 was executed on 26.07.2008 on stamp papers on
payment of Rs.10,00,000/- to defendant No.1 in the presence of
witnesses. In the said Agreement, it was agreed that the balance
sale consideration was to be paid at the time of execution of
registered sale deed. The plaintiff demanded execution of registered
sale deed but defendant No.1 postponed on one pretext or the other.
While things stood thus, defendant No.1 got issued a legal notice
dated 13.04.2010/Ex.A3 alleging that he was in need of money and
took Rs.5,00,000/- from the plaintiff by deposit of title deeds. It is
further alleged that at that time, defendant No.1's signatures were
obtained on cheques and promissory note by the plaintiff. On receipt
of the legal notice, the plaintiff approached defendant No.1 and
questioned about the notice. When there was no reply, the plaintiff
got issued a reply notice dated 19.07.2010/Ex.A4, but, defendant
No.1 did not give any reply to the reply notice of the plaintiff. The
plaintiff's case is that he is ready and willing to perform his part of
the contract, but, defendant No.1 is not ready and willing to perform
his part of the contract. When the plaintiff got issued reply notice,
defendant No.1 informed the plaintiff that the suit schedule property
was sold in favour of defendant No.2. Upon enquiry, the plaintiff
learned that defendant No.1 executed registered sale deed in favour
of defendant No.2 on 23.04.2009 vide document No.3398 of
2009/Ex.A7 and that defendant No.2 in turn executed registered
sale deed in favour of defendant No.3 on 05.11.2009 vide document
No.9971 of 2009/Ex.A8. After obtaining the documents, when
defendant No.3 was making attempts to alienate the suit schedule
property, the plaintiff filed the suit for specific performance of
Agreement of sale executed by defendant No.1 in his favour.
7. The defendant Nos.4 to 6 remained exparte. Defendant
Nos.2 and 3 filed written statements. In sum and substance,
defendant No.2 denied execution of Ex.A1 Agreement of sale by
defendant No.1 in favour of the plaintiff. Defendant No.2 purchased
the suit schedule property from defendant No.1 under a registered
sale deed document bearing No.3398 of 2009, dated
23.04.2009/Ex.A7. Defendant No.1 assured to handover the link
documents but did not do so. Thereafter, defendant No.2 learned
that in collusion with the plaintiff, the Agreement of sale is created
and the same is not sustainable. Defendant No.2 claimed to be a
bonafide purchaser. Defendant No.3 sailed along with defendant
No.2 and claimed to be bonafide purchaser from defendant No.2.
8. On the basis of rival pleadings, the learned Judge framed
the following three issues for trial:
1) Whether the sale agreement dated 26.07.2008 is
true, valid and binding on the defendant No.2?
2) Whether the defendant No.2 is absolute owner of
the suit schedule property by virtue of registered
sale deed executed by defendant No.1 on
23.04.2009 vide document No. 3398 of 2009?
3) Whether the defendant No.2 in turn sold the suit
schedule property in favour of defendant No.3
under registered sale deed?
4) Whether the plaintiff is entitled for direction to
defendants 1 to 3 to execute registered sale deed
in his favour in respect of suit schedule
property?
5) Whether the plaintiff is entitled for declaration
that sale deed executed by defendant No.1 in
favour of the defendant No.2 and also sale deed
executed by defendant No.2 in favour of D.3 are
null and void?
6) To what relief?
9. During trial, on behalf of the plaintiff, witnesses PW1 and
PW2 were examined and got marked Ex.A1 to A12. Defendant No.2
examined himself as DW1 and got marked Ex.B1 and B2. Upon
examining both the oral and documentary evidence, the learned
Judge decreed the suit in favour of the plaintiff. Aggrieved by the
same, the present appeal is preferred by defendant Nos.2 and 3.
Contentions of the appellants/defendant Nos.2 and 3:
10. The learned counsel for defendant Nos.2 and 3 in grounds
of appeal contended that the plaintiff failed to prove his readiness
and willingness to perform his part of the contract and that the
plaintiff approached the Court with unclean hands. The learned
Judge failed to take into consideration the legal notice Ex.A3,
wherein, defendant No.1 demanded the plaintiff to return back
blank signed stamp papers and cheques deposited with him for
obtaining loan. There is an erroneous finding on the part of the
learned Judge about defendant Nos.2 and 3 admitting the
signatures of defendant No.1 on Ex.A1 Agreement of sale dated
26.07.2008. There is a further erroneous finding that defendant
Nos.2 and 3 failed to adduce evidence to prove existence of a loan
transaction between them and plaintiff. It is alleged that the plaintiff
claimed to be an agriculturist and not involved in money lending
business but the same is proven to be false by the information
secured under RTI from GHMC. There is an erroneous finding that
Ex.A1 is not a forged or tampered document and that it is a genuine
Agreement of sale. Except pleading about the readiness and
willingness, there is no credible evidence on the part of the plaintiff
to perform his part of the contract. There is an erroneous finding
that no borrower will deposit title deeds while taking loan that too
without any proof of obtaining loan.
11. The learned counsel for the appellants during arguments
vehemently emphasized that there was no evidence adduced by the
plaintiff to prove his readiness and willingness to perform the
contract. In that regard, learned counsel for the appellants relied
upon judgments of the Hon'ble Supreme Court of India in
K.S.Vidyanadam and others vs. Vairavan 1, Alagammal and
others vs. Ganesan and another 2 and C.S.Venkatesh vs.
A.S.C.Murthy (D) by LRs and others 3.
(1997) 3 SCC 1
(2024) 1 SCR 374
(2020) 3 SCC 280
Contentions of respondent No.1/plaintiff:
12. Learned counsel for respondent No.1/plaintiff supported
the decree and judgment passed by the learned Judge alleging that
the findings are based on correct appreciation of facts and
application of law. The learned counsel emphasized that the total
sale consideration for purchase of suit schedule property was
Rs.11,00,000/-, out of which, Rs.10,00,000/- has been paid on the
date of execution of Agreement of sale and the balance sale
consideration is only Rs.1,00,000/- which is less than 10% of the
total sale consideration. The plaintiff who has paid Rs.10,00,000/-
was always ready to pay the remaining Rs.1,00,000/- but it is the
defendant No.1 who reneged from performing his part of the
contract. The learned counsel for respondent No.1 relied upon the
judgments of the Hon'ble Supreme Court of India in Ahmadasahab
Abdul Mulla (D) by proposed LRs vs. Bibijan and others 4 and
R. Lakshmikantham vs. Devaraji 5.
Analysis of the Court:
13. The main ground raised for challenging the judgment and
decree of the learned Judge is lack of proof of readiness and
willingness on the part of the plaintiff in performing his part of the
contract. In that regard, defendant Nos.2 and 3's reliance on
judgment of the Hon'ble Supreme Court of India in
(2009) 5 SCC 462
(2019) 8 SCC 62
K.S.Vidyanadam (1 supra) cannot be taken into consideration as
the facts of the said case show that there was complete inaction on
the part of the plaintiff in payment of money for a period of 2½ years
after making a payment of small amount of money i.e. Rs.5,000/-
out of total sale consideration of Rs.16,000/-. In the instant case,
the reverse is true i.e. the plaintiff herein has paid more than 90% of
the sale consideration i.e. Rs.10,00,000/- out of total sale
consideration of Rs.11,00,000/-. Therefore, K.S.Vidyanadam
(1 supra) judgment does not come to the aid of the defendant Nos.2
and 3. Similarly, in the judgment of Alagammal and others (2
supra), the Agreement of sale was entered on 22.11.1990 for a sale
consideration of Rs.21,000/- and advance amount of Rs.3,000/-
was paid. The remaining amount of Rs.18,000/- was to be paid in
six months. However, when there was no payment, after a period of
seven years, the vendor sold the property to third party. In that case
too, the amount paid is only about 14% of the total sale
consideration. Also, the time was essence of the contract in
Alagammal and others (2 supra). Whereas, there is no such time
stipulated in the Agreement of sale of the present case.
14. Further, the judgment of the Hon'ble Supreme Court of
India in C.S.Venkatesh (3 supra) interprets the words 'ready' and
'willing' as the preparedness to carry out obligation under the
contract to logical end depend on performance. The continuous
readiness and willingness on the part of the plaintiff is a condition
precedent to grant relief of performance and in case, the plaintiff
fails to prove the same, he is not entitled to any relief. Whereas, in
this case, there is no proof to show that the plaintiff was not ready
and willing to perform his part of the contract.
15. In view of the foregoing discussion, this Court is of the
considered opinion that by virtue of the fact that the plaintiff had
already paid more than 90% of the sale consideration of
Rs.10,00,000/-, he was ready and willing to pay the remaining sale
consideration of Rs.1,00,000/-.
16. A person who paid substantial amount of the sale
consideration cannot be expected to be not ready for paying a small
fraction of the balance sale consideration and therefore, the learned
Judge made no error in holding that the plaintiff was ready and
willing to perform his part of the contract.
17. The next ground raised by defendant Nos.2 and 3 is that
the plaintiff approached the Court with unclean hands by
suppressing that he is a money lender. To prove said fact, they
relied upon Ex.B1-Information given by the Deputy Commissioner,
Patancheru and GHMC, dated 13.07.2018. The said document was
not considered by the learned Judge as the author of the document
was not examined. As per the established legal precedents, marking
of the document as an exhibit is not sufficient to prove the contents.
18. The author of a document has to be examined to prove the
genuineness of its contents. In the absence of failure to examine the
author of Ex.B1, no fault can be found on the part of the learned
Judge for not considering Ex.B1-Information given by the Dy.
Commissioner, Patancheru and GHMC dated 13.07.2018.
19. Assuming for a moment that the plaintiff is indeed engaged
in money lending business, in the absence of any document, loan
transaction between the plaintiff and defendant No.1 cannot be
believed. The plaintiff's role in creating Ex.A1 Agreement of sale on
the basis of blank signed papers has to be proven by defendant
Nos.2 and 3 with credible evidence. In the absence of said evidence,
no malafide can be attributed to the plaintiff.
20. The next ground raised by defendant Nos.2 and 3 is that
the learned Judge has not taken into consideration the legal notice
dated 13.04.2010 under Ex.A3, whereby, defendant No.1 had
demanded the plaintiff to return the blank signed papers and
cheques obtained by him with respect to hand loan, is a matter that
needs to be examined.
21. Ex.A1 Agreement of sale/ExA1 was entered on 26.07.2008
and defendant No.1 had sent legal notice/Ex.A3 on 13.04.2010. In
the interim, defendant No.1 executed Ex.A7 registered sale deed vide
document bearing No.3398 of 2009, dated 23.04.2009 in favour of
defendant No.2, who in turn executed Ex.A8 registered sale deed
vide document bearing No.9971 of 2009, dated 05.11.2009 in favour
of defendant No.3. The conduct of defendant No.1 shows that he
entered into an Agreement of sale with the plaintiff on 26.07.2008,
alienated the property in favour of defendant No.2 on 23.04.2009
and after a lapse of (1) year (3) months, got a false legal notice
issued under Ex.A3 to the plaintiff. It appears that only to cover up
his misconduct of selling the suit schedule property in favour of
defendant No.2, the plaintiff got issued a legal notice alleging loan
transaction without any proof. In the absence of any documentary
evidence, much credence cannot be given to Ex.A3 legal notice
dated 13.04.2010.
22. There is an issue raised by defendant Nos.2 and 3 about
the admission of signatures of defendant No.1 on Ex.A1. In this
regard, no fault can be found on the part of the learned Judge as the
defendants themselves in their written statement have admitted the
Agreement of sale containing the signatures of defendant No.1
though the said signatures are alleged to have been taken on blank
papers. The case of defendants as per Ex.A3 legal notice is that
there was a loan transaction between defendant No.1 and plaintiff
for lending an amount of Rs.5,00,000/- and in that context, the
plaintiff obtained blank signed papers and promissory note. It is
their further case that the said blank papers were used for
preparing the Agreement of sale by the plaintiff. Once the pleadings
have an admission about the genuineness of the signature, the
same cannot be disputed at appeal stage.
23. Coming to the aspect of proof of Ex.A1/Agreement of sale,
the plaintiff got himself examined as PW1 to prove the contents of
Ex.A1. Further, the plaintiff examined PW2/Mohd. Mahmood Ali,
who signed on the Agreement of sale as a witness. Once the plaintiff
has discharged his burden of proof to prove the contents of
Ex.A1/Agreement of sale, the onus of proof then shifts to the
defendants to disprove the same. Except for the oral evidence of
defendant No.2 as DW1 who is not a signatory to Ex.A1, no evidence
is produced to disprove the contents of Ex.A1. At a minimum,
defendant Nos.2 and 3 could have examined the legal
representatives of defendant No.1 i.e. defendant Nos.4 to 6 or other
witness to Ex.A1 in support of their pleading that blank signed
papers were given to the plaintiff in a loan transaction and that no
such alleged Agreement of sale took place under Ex.A1. Even the
defendant Nos.4 to 6 remained ex-parte and did not contest the suit.
Hence, the evidence of DW1 who is not having personal knowledge
about Ex.A1 Agreement of sale is not a competent witness to depose
about the same. In the circumstances, this Court is not inclined to
find fault with the finding given by the learned Judge about there
being no tamper of Ex.A1 Agreement of sale.
24. Lastly, the judgments of the Hon'ble Supreme Court of
India referred by the learned counsel for respondent No.1/plaintiff
in Ahmadasahab Abdul Mulla (D) by proposed LRs (4 supra) and
R. Lakshmikantham (5 supra), are about limitation period for
specific performance. The said judgments are about the time from
which the limitation begins to run in a suit for specific performance
i.e. when a date is fixed 'from said date' and when there is no date,
'when the plaintiff has noticed that performance is refused'. In the
instant case, the plaintiff had noticed about the refusal to perform
the Agreement of sale upon receipt of Ex.A3 legal notice dated
13.04.2010. Since the Agreement of sale/Ex.A1 is dated 26.07.2008,
even if the limitation period is taken three years, the said limitation
begins on 13.04.2010 and the suit is filed in the year 2011.
Therefore, there is no issue of limitation in filing the suit.
25. In view of the foregoing discussion, this Court is of the
considered opinion that there are no grounds to interfere with the
impugned judgment and decree passed by the learned Judge,
Family Court-cum-VII Additional District Judge, Medak at
Sangareddy, dated 19.09.2019 in O.S.No.55 of 2011. As such, the
appeal fails and is liable to be dismissed.
26. In the result, the Appeal Suit is dismissed. No order as to
costs.
As a sequel, all the pending miscellaneous applications are
closed.
___________________
RENUKA YARA, J
Date: 25.04.2025
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THE HON'BLE SMT. JUSTICE RENUKA YARA
25.04.2025
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