Telangana High Court

Smt. R.M.Vani Prakash vs Smt. G.K.Jayasree on 20 June, 2025

     THE HON'BLE SMT. JUSTICE TIRUMALA DEVI EADA

         CITY CIVIL COURT APPEAL No.324 OF 2019

JUDGMENT:

This is an appeal filed by the appellant, being aggrieved by

the judgment and decree, dated 27.12.2018 passed in O.S.No.110

of 2010 by the learned XXVII Additional Chief Judge, City Civil

Court, Secunderabad (for short "the trial Court").

2. The appellant herein is the plaintiff and the respondent is

the defendant before the trial Court. The parties herein are

referred to as they were arrayed in the suit before the trial Court

for the sake of convenience and clarity.

3. The case of the plaintiff before the trial Court is that the

plaintiff is initially in the suit schedule property belonging to the

defendant. It was a new flat in which she got inducted as a

tenant and that the window shutters were not fixed and there was

seepage of water into the flat and that the defendant could not

undertake the repair and thus, the plaintiff herself has got the

repairs done. It is the further case of the plaintiff that the

defendant was planning to perform the marriage of her two

daughters and she wanted to sell the flat due to financial

necessity. The plaintiff has entered into an agreement of sale with

the defendant on 29.04.2006 for the sale consideration of ETD,J CCCA No.324 _2019

Rs.11,00,000/- and Rs.1,00,000/- towards car parking, thus, the

total sale consideration was Rs.12,00,000/- and that the said

agreement was executed on a white paper signed by both of them.

The plaintiff paid advance sale consideration of Rs.50,000/- on

the said day and subsequently, has paid amount on different

dates coming to a total of Rs.7,65,000/- towards advance sale

consideration. That the defendant has asked the plaintiff to pay

the balance sale consideration after three to four months and that

at the time of marriage of defendant's first daughter she paid

some amounts and at the time of marriage of second daughter,

she paid Rs.4,65,000/- on 23.01.2007 and another Rs.1,00,000/-

on 08.02.2007. After the marriages were performed, the

defendant has issued a legal notice on 01.01.2008 calling upon

the plaintiff to vacate the suit schedule property and that she is

terminating the agreement of sale alleging that the plaintiff failed

to perform her part of contract. It is averred by the plaintiff that

the defendant failed to execute the sale deed in her favour, thus,

has filed the present suit.

4. The defendant has filed written statement admitting the

agreement of sale dated 29.04.2006 and that there was another

agreement of sale entered on 25.10.2006 with a revised sale

consideration of Rs.12,20,000/- and the defendant has admitted ETD,J CCCA No.324 _2019

the payment of Rs.7,65,000/- by the plaintiff towards advance

sale consideration by February, 2007, but contended that there is

a short fall of Rs.4,55,000/- towards balance sale consideration.

It is contended by the defendant that the plaintiff was supposed to

pay the entire amount within four months from 29.04.2006

initially and after the second agreement of sale was entered it was

agreed upon that the plaintiff had to pay the entire sale

consideration by 26.02.2007 and that the defendant was

supposed to execute the sale deed on receiving the entire balance

sale consideration and that the said date was stipulated as a

condition at Clause No.2 and Clause No.8, that the balance sale

consideration shall be paid by 26.02.2007 and sale deed should

be executed by that date, thus, the plaintiff failed to perform her

part of contract as she was not ready and willing to perform her

part of contract. It is contended by the defendant that the

plaintiff has paid only Rs.7,65,000/- and has never expressed her

willingness to pay the remaining balance sale consideration and

therefore, having waited till 01.01.2008, she got issued a legal

notice to the plaintiff asking her to vacate the suit schedule

premises and that she is terminating the agreement of sale to

which the plaintiff has issued a reply notice dated 19.01.2008 but

has failed to vacate the suit schedule premises. It is contended by

the defendant that the plaintiff is not paying any rents ever since ETD,J CCCA No.324 _2019

the agreement of sale was executed and that she has to pay the

arrears of rent, for which she has already filed a suit in

O.S.No.170 of 2015 it was originally filed in 2008 vide O.S.No.183

of 2008 which was renumbered subsequently as O.S.No.170 of

2015. It is the contention of the defendant that following her suit

for eviction, the plaintiff has brought this suit into existence. It is

the contention of the defendant that the plaintiff is not entitled to

any relief of specific performance as she failed to perform her part

of contract and was never ready and willing, therefore, she prayed

to dismiss the suit.

5. Based on the above pleadings, the trial Court has framed

the following issues for trial:

"1. Whether the plaintiff is entitled for specific performance of agreement of sale dated 29.04.2006?

2. To what relief?"

6. At the time of trial, the plaintiff got examined PW1 and got

marked Exs.A1 to A10. On behalf of the defendant, DWs 1 and 2

were examined and Exs.B1 to B4 were marked.

7. Based on the evidence on record, the trial Court has

dismissed the relief of specific performance and granted the

alternative relief of refund of the advance amount of ETD,J CCCA No.324 _2019

Rs.7,65,000/-. Aggrieved by the said judgment and decree, the

present appeal is preferred by the plaintiff.

8. Heard the submissions of Sri S.R.Sanjeev Kumar, learned

counsel for the appellant and Sri Devashish Dash, learned

counsel for the respondent.

9. The learned appellant counsel has submitted that the

judgment of the trial Court is contrary to law and that the trial

Court has failed to consider the validity of the agreement of sale

and that the plaintiff was always ready and willing to perform her

part of contract having paid major part of sale consideration of

Rs.7,65,000/- out of Rs.12,00,000/-. He further argued that ever

since the agreement of sale has been executed, the plaintiff has

been staying as an agreement holder but not as a tenant and

therefore, she has not paid any rents and that in fact the

defendant has orally agreed for such an arrangement, as she was

under dire necessity for money to perform the marriage of her two

daughters, she agreed to sell the property to the tenant i.e. the

plaintiff herein and further she has agreed to allow the tenant to

stay in the premises without paying any rents. He further argued

that in pursuance to the agreement of sale, the plaintiff has paid

Rs.7,65,000/- to the defendant which was utilized by her for

performing the marriages of her daughters and subsequently got ETD,J CCCA No.324 _2019

issued a legal notice to vacate the suit premises and also

expressing the termination of agreement of sale, which is not at all

justified. He further argued that the plaintiff i.e. appellant herein

was always ready and willing to perform her part of contract but

the defendant has never come forward. He further argued that

the defendant should not have cancelled the agreement of sale

unilaterally and that it shows the evil conduct of the defendant in

taking the money to meet her necessities and terminating the

agreement of sale after her necessities are met. He, therefore,

prayed to allow the appeal by setting aside the judgment and

decree.

10. The respondent counsel, on the other hand, has submitted

that the trial Court has rightly dismissed the suit for specific

performance because the plaintiff was never ready and willing to

pay the balance sale consideration and even the advance sale

consideration was not paid according to the dates specified in the

agreement of sale. She has paid the amounts as per her

convenience and that when the agreement itself stipulates that

the balance should be paid by 26.02.2007, the plaintiff has not

chosen to comply the same and that having waited for a

considerable period of time, the defendant got issued the legal

notice terminating the agreement of sale and further to vacate the ETD,J CCCA No.324 _2019

suit schedule property. Since the time is specified in the

agreement of sale, the time is the essence of contract in this case

and therefore, the plaintiff is not entitled for any specific

performance of the agreement of sale. He further argued that the

plaintiff has not been paying any rents from the date of agreement

of sale and is still squatting on the property as on date which

proves the bad conduct of the plaintiff, he therefore, prayed to

dismiss the appeal confirming the judgment and decree of the trial

Court.

11. Having heard the above rival submissions, this Court

frames the following points for consideration:

1) Whether the agreement of sale dated 25.10.2006 is true, valid and binding on the defendant?

2) Whether the plaintiff was ready and willing to perform her part of contract?

3) Whether the plaintiff is entitled to decree of specific performance? If not, whether the plaintiff is entitled to the alternative relief?

4) Whether the judgment and decree of the trial Court is sustainable in law and under the facts?

      5)    To what relief?

12.   POINT NOs.1 TO 3:

a)    The admitted facts in this case are that the plaintiff was a

tenant in the flat owned by the defendant and that there was an

agreement entered into between the parties to sell the said flat to ETD,J CCCA No.324 _2019

the plaintiff by the defendant. It is also admitted that an advance

sale consideration of Rs.7,65,000/- was paid by the plaintiff to the

defendant.

b) The case of the plaintiff is that an agreement of sale/Ex.A1

was entered into on 29.04.2006 to purchase the flat of the

defendant in which she was staying as a tenant, for a total sale

consideration of Rs.12,00,000/- and that the same was formally

executed on a white paper.

c) A perusal of Ex.A1 shows that it is an agreement on a white

paper which bears the recitals that an agreement is entered into

between the plaintiff and the defendant for Rs.11,00,000/- for the

sale of Flat No.503, Bhaskara Residency, Namalagundu,

Secunderabad and it is mentioned in handwriting that it includes

car parking. It is not a registered document and does not contain

any attestation, subsequently, it was impounded.

d) Ex.A2 is the receipt issued by the defendant showing that

she has received Rs.50,000/- as on 29.04.2006. The plaintiff has

also filed other receipts under Exs.A3 to A6 to prove that she paid

Rs.7,65,000/- which are not disputed by the defendant.

ETD,J CCCA No.324 _2019

e) Ex.A7 is the office copy of legal notice dated 01.01.2008

issued by the defendant. A perusal of Ex.A7 shows that the

defendant has pointed out that the plaintiff has failed to pay the

balance sale consideration by 26.02.2007 as stipulated under the

agreement of sale and that she is terminating the agreement of

sale and has asked the defendant to vacate the suit schedule

premises.

f) It is mentioned in Ex.A1 that the balance amount shall be

paid partly on 2nd/3rd May, 2006, then further amount on

30.05.2006 and then the balance amount shall be paid within

three to four months from 29.04.2006. Relying on the said

document, the plaintiff states that the defendant has given her

liberty to pay the balance sale consideration within three to four

months and that is the reason, she has paid on different dates

and that there was no particular dates stipulated for payment of

balance sale consideration. However, the defendant has filed

Ex.B1 which is stated to have been the second agreement of sale

dated 25.10.2006. It is the contention of the defendant that the

plaintiff was not paying the balance sale consideration on the

stipulated dates as mentioned in Ex.A1, therefore, again they sat

together and discussed and thus, have entered into a fresh

agreement of sale on 25.10.2006, though PW1 has not stated ETD,J CCCA No.324 _2019

anything about the second agreement of sale, she has admitted

Ex.B1 in her cross examination.

g) As per the terms laid down in Ex.B1, it is mentioned that

the plaintiff shall pay the balance amount of Rs.4,20,000/- on or

before 26.02.2007 and that the fresh sale consideration was

agreed upon was of Rs.12,20,000/- that the plaintiff has paid

Rs.7,65,000/- by then and therefore, it was agreed upon to pay

Rs.4,20,000/- by 26.02.2007 and the defendant has agreed to

is also mentioned at Clause No.11 that "if the purchaser i.e. the

plaintiff herein fails to obtain the sale deed within the above

specified time, the token amount paid to the vendor has to refund

after deducting the costs and damages i.e. Rs.2,00,000/- to the

vendee and that the vendee shall have no claim whatsoever under

the agreement". The record speaks that the plaintiff has not paid

any amount subsequent to the last receipt filed under Ex.A6 i.e.

dated 08.02.2007 and the legal notice is dated 01.01.2008 that

means the defendant has waited for another 10 months even after

the stipulated dates mentioned in the agreement of sale and then

got issued the legal notice under Ex.A7. Till 01.01.2008, the

plaintiff has not made any effort to approach the defendant with

the balance sale consideration. Though the plaintiff averred that ETD,J CCCA No.324 _2019

she was always ready and willing to perform her part of contract

by paying the balance sale consideration, there is nothing on

record to show that she was ready with the balance sale

consideration. It is not the case of the plaintiff that she has

approached the defendant with the balance sale consideration and

that the defendant did not execute the sale deed. In the absence

of any proof filed by the plaintiff to show that she was ready to

pay the balance sale consideration and was willing to get the sale

deed register by 26.02.2007 or on or before 01.01.2008 on which

date the legal notice was issued to her, she cannot claim that she

was ready and willing to perform her part of contract. Though the

time is not the essence of contract in agreements pertaining to the

immovable properties, it has to be looked into the facts and

circumstances of the case have to be looked into to evaluate

whether the plaintiff was ready and willing to perform her part of

contract to give effect to the agreement of sale.

h) As discussed supra, the plaintiff failed to place any evidence

to show that she was ready and willing to perform her part of

contract. It is also pertinent to mention in this regard that the

present suit is filed in 2010 subsequent to the eviction suit filed

by the defendant. The record discloses that the defendant has

filed O.S.No.183 of 2008. Ex.A9 is the plaint in O.S.No.183 of ETD,J CCCA No.324 _2019

2008 filed by the defendant. Thus, it is an afterthought of the

plaintiff to bring a suit against the defendant for specific

performance of agreement of sale. It is further contended by the

defendant that the plaintiff stopped paying rents ever since the

date of agreement of sale and that she is not paying the same till

date. The plaintiff, on the other hand, alleges that since she has

entered into an agreement of sale she was staying as an

agreement holder in the suit schedule premises but not as a

tenant from the date of agreement of sale. A perusal of Ex.A1

does not reveal any such covenant. However, the payment of

rents does not fall for consideration in the present suit. Therefore,

the said aspect is not dealt with. As discussed supra, the plaintiff

could not prove that she was ready with the balance sale

consideration and was willing to get the sale deed executed.

i) Ex.A1 relied upon by the plaintiff is an unstamped

unregistered document which was subsequently impounded. The

contention of the respondent counsel herein is that once a

document needs to be compulsorily registered under Section 17(1)

of the Registration Act, 1908 no amount of stamp duty can

validate the document. Thus, Ex.A1 itself is not a valid

document.

ETD,J CCCA No.324 _2019

j) There is another agreement of sale filed under Ex.B1 by the

defendant, which is admitted by PW1. A perusal of the said

agreement of sale reveals that it is an unregistered document but

is sufficiently stamped and has all the clauses which were agreed

upon by both the parties and has the signatures of both the

vendor, vendee and the witnesses. The agreement of sale specifies

certain conditions for payment of balance sale consideration, a

time is stipulated and the plaintiff has to pay the balance sale

consideration by 26.02.2007 and was supposed to get it registered

by the said date. Since the plaintiff failed to perform her part of

contract, it is held that Ex.B1 is not binding on the defendant.

Further, it is observed that Ex.B1 is not a registered document,

hence, is not valid in the eye of law.

k) It is also mentioned in Ex.B1 that if the plaintiff fails to

perform her part of contract by 26.02.2007, the plaintiff shall not

be entitled to the execution of sale deed but the defendant shall

return the amount after deducting an amount of Rs.2,00,000/-

from the balance sale consideration. Thus, the parties are bound

by the agreement. It is elicited through the evidence on record

that the plaintiff has not even shown her readiness to pay the

balance sale consideration by 26.02.2007 and further till

01.01.2008, the date of issuance of legal notice. Therefore, the ETD,J CCCA No.324 _2019

plaintiff is not entitled for specific performance of agreement of

sale but the plaintiff is entitled for refund of the advance sale

consideration paid by her i.e. Rs.7,65,000/- with interest @12%

per annum from the date of filing the suit till the date of decree

and thereafter @6% per annum till the date of realization.

l) Though it is stipulated in the agreement of sale that the

defendant shall deduct an amount of Rs.2,00,000/- towards costs

and damages, it is pertinent to take note of the fact that there is

another suit with regard to the arrears of rent wherein it is

directed that the plaintiff herein shall pay the arrears of rent and

maintenance charges to the defendant @ Rs.90,500/- with

interest @12% per annum from the date of filing of the suit till the

date of decree and thereafter @6% per annum till the date of

realization. Therefore, when the owner of the premises i.e. the

defendant herein is granted the relief of arrears of rent, then that

would compensate the loss or damages to the defendant.

Therefore, the said point of deduction is not taken into

consideration while awarding the refund of amount. Though, the

plaintiff is claiming interest @ 24%, this Court has been awarding

the interest @ 12% consistently in all the civil suits, therefore, the

same is awarded in this present case also. Point Nos.1 to 3 are

answered accordingly.

ETD,J CCCA No.324 _2019

13. POINT NO.4:

In view of the reasoned findings arrived at point Nos.1 to 3,

it is held that the trial Court's judgment and decree needs

interference only to the extent of interest.

14. POINT NO.5:

In the result, the appeal is partly allowed modifying the

judgment and decree, dated 27.12.2018 passed in O.S.No.110 of

2010 by the learned XXVII Additional Chief Judge, City Civil

Court, Secunderabad to the extent of interest to be payable on

Rs.7,64,000/- @12% per annum from the date of filing the suit till

the date of decree and thereafter @6% per annum till the date of

realization. There shall be no order as to costs.