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2005 DIGILAW 1159 (AP)

C. D. Srinivasulu v. Abbasani Ramaiah

2005-12-07

P.S.NARAYANA

body2005
J U D G M E N T The unsuccessful defendant in O.S.No.3/88 on the file of I Additional Subordinate Judge at Saroornagar, Kothapet, Ranga Reddy District being aggrieved of the Judgment and Decree made therein granting the relief of specific performance had preferred the present Appeal. 2. Sri Ramchander Rao, the learned Counsel representing the appellant/defendant had taken this Court through the contents of Ex.A-4 and Ex.B-6 and also the conditions stipulated in the agreement of sale and would contend that in the light of the facts and circumstances the contention that even prior to the expiry of the term stipulated in the agreement of sale the plaintiffs had been approaching the defendant cannot be believed inasmuch as at the earliest point of time in a notice the same was not specified and subsequent thereto even in the plaint the same was not pleaded but at the stage of evidence the same had been improved. In the light of the same it may have to be taken that the respondents/plaintiffs miserably failed in establishing their readiness and willingness to perform their part of the contract. The learned Counsel also would comment that except P.W.1 no other evidence had been placed. The learned Counsel also would submit that the view expressed in INDIRA KAUR VS. SHEO LAL KAPOOR (1) cannot be said to be the view holding the field in the light of the subsequent decisions of the Apex Court in N.P.THIRUGNANAM Vs. R.JAGAN MOHAN RAO (2) and HIS HOLINESS ACHARYA SWAMI GANESH DASSJI Vs. SITA RAM THAPAR(3). The learned Counsel also would contend that to establish readiness and willingness to perform their part of the contract, some more evidence is essential and at least some evidence relating to the availability of consideration at the relevant point of time also should have been established. The learned Counsel placed strong reliance on NALAMATHU VENKAYYA (DIED) PER L.R. VS. B.S. NEELAKANTA AND ANOTHER (4)KASINATH PATEL VS. RADHA BAI AND OTHERS (5) and P.PURUSHOTHAM REDDY AND ANOTHER VS. M/S. PRATAP STEELS LTD. (6). The learned Counsel also would submit that the mere fact that the defendant became sufficiently old and his son who has knowledge of the facts had been examined by itself an adverse inference cannot be drawn and the primary burden is on the respondents/plaintiffs to establish their readiness and willingness to perform their pert of the contract. (6). The learned Counsel also would submit that the mere fact that the defendant became sufficiently old and his son who has knowledge of the facts had been examined by itself an adverse inference cannot be drawn and the primary burden is on the respondents/plaintiffs to establish their readiness and willingness to perform their pert of the contract. The learned Counsel also would submit that it may be that normally time may not be the essence of the contract in relation to the enforcement of an agreement of sale in the context of immovable property. But however there may be a plea relating to the readiness and willingness to perform their part of the contract and also there should be acceptable evidence. In the absence of the same, the decree made by the learned Judge cannot be sustained. 3. Sri Srinivasa Murthy, the learned Counsel representing the respondents/plaintiffs would contend that the respective pleadings of the parties are clear and categorical. The evidence of P.W.1 is clear on the aspect of readiness and willingness to perform their part of the contract. The learned Counsel also would submit that the view expressed by the Apex Court in the decision referred (1) supra would be squarely applicable to the facts of this case. In the facts and circumstances it cannot be said that the plaintiffs had not established their readiness and willingness to perform their part of the contract especially in the light of the fact that the defendant had not chosen to enter the witness box. Apart from this aspect of the matter, though it is not stipulated in the agreement of sale relating to the obtaining of income tax clearance certificate the fact remains that Ex.B-7 was obtained long after the expiry of the time stipulated under the agreement of sale, that too in the name of D.W.1, the son of the defendant. This would definitely go to show that the appellant/defendant for reasons best known thought of avoiding the contract having entered into the contract. The learned Counsel also would contend that in pursuance of the decree, deposit had been made and this aspect also may be taken into consideration. The learned Counsel pointed out to the relevant portion of the evidence of P.W.I and also strongly commented on the aspect of non-examination of the defendant. The learned Counsel placed reliance on ESWARI AMMA AND ANOTHER VS. The learned Counsel pointed out to the relevant portion of the evidence of P.W.I and also strongly commented on the aspect of non-examination of the defendant. The learned Counsel placed reliance on ESWARI AMMA AND ANOTHER VS. M.K. KORAH AND OTHERS (7) SMT.S.PADMAVATHAMMA VS. SMT. S. SUDHA RANI AND OTHERS (8), Podelly Chinna CHINNANNA VS. BANDARI PEDDA BHUMANNA AND OTHERS (9) S.P. NARAYAASWAMI PILLAI VS. DHANAKOTI AMMAL (10) GANESH PRASAD VS. SARASWATI DEVI AND OTHERS (11) LOONKARAN SETHIA VS. IVAN E.JOHN AND OTHERS(12), LAKSHMI AMMA VS. AYYAPPAN (13) RAMESH CHANDRA CHANDIOK AND ANOTHER VS. CHUNI LAL SABHARWAL (DEAD) BY HIS LEGAL REPRESENTATIVES AND OTHERS (14) MOTILAL JAIN VS. SMT.RAMDASI DEVI AND OTHERS (15) BARATAM MANMADHA RAO VS. SRI RAJA RAO RANGAMANNAR KRISHNA RANGA RAO(16) and also the decision of the Apex Court referred (1) supra. 4. Heard, the Counsel. 5. In view of the rival contentions advanced by both the Counsel, the following Points arise for consideration in this Appeal : 1. Whether the relief of specific performance granted in favour of the respondents/plaintiffs be sustained in the facts and circumstances of the case ? 2. If so to what relief the parties would be entitled to ? 6. POINT No. 1: The parties hereinafter would be referred to as plaintiffs and defendant. 7. It is the case of the plaintiffs that they are the tenants and the defendant is the landlord of the plaint schedule property and the defendant offered to sell the property and the plaintiffs agreed to purchase the same. The sale price was settled at Rs.1,96,000/- and the parties entered into the agreement of sale on 11-8-1996. It was also pleaded that Rs.10,000/- was paid by the plaintiffs to defendant as earnest money on the date of agreement. It was further pleaded that the plaintiffs always have been ready and willing to pay the balance sale amount and get the regular registered sale deed. But however the defendant on one pretext or the other had been dragging on the matter. It was also pleaded that the defendant as per Law was bound to get income tax clearance but the defendant had not informed the plaintiffs whether he had obtained such clearance or not. But however the defendant on one pretext or the other had been dragging on the matter. It was also pleaded that the defendant as per Law was bound to get income tax clearance but the defendant had not informed the plaintiffs whether he had obtained such clearance or not. It was also pleaded that a notice was issued to the defendant on 25-3-1987 asking him to intimate the date and place of completion of the transaction but the defendant issued a reply notice with false allegations. In such circumstances the suit was filed. 8. The defendant filed a written statement denying the allegations. It was pleaded that the plea that the plaintiffs are protected tenants is not true. The other allegations also had been denied. It was also pleaded that the plaintiffs were never ready and willing to perform their part of the contract and were never ready to make the payment of the balance of sale consideration and get the sale deed registered. It was also pleaded that the agreement in question is no more in existence since it was determined even before the institution of the suit. The other facts relating to the exchange of notices also had been referred to in the written statement. 9. On the strength of the respective pleadings of the parties, the evidence of P.W.1 the 1st plaintiff and D.W.1 the son of the defendant was recorded. Exs.A-1 to A-4 and Exs.B-1 to B-7 were marked. The learned Judge on appreciation of the evidence available on record after recording the reasons ultimately decreed the suit. It is also brought to the notice of this Court that in pursuance of the decree the deposit also had been made and the remaining amount is lying in deposit. 10. The crucial aspect which had been pointed out by the learned Counsel representing the appellant/defendant is that except P.W.1 none else had been examined and the aspect of readiness and willingness to perform their part of the contract by the plaintiffs had not been established and the evidence of P.W.1 is improved relating to the fact that the plaintiffs approached the defendant even prior to the time stipulated in the contract since the same was not mentioned either in Ex.A-4 or in the plaint and this is an after-thought. This is the main ground of attack. 11. This is the main ground of attack. 11. It is no doubt true that in Ex.A-1 the obtaining or non-obtaining of income tax clearance certificate had not been specified as a condition. It is not clear from the facts available on record either from the evidence of P.W.1 and D.W.1. However the fact remains that Ex.B-7 income tax clearance certificate dated 26-5-1987 was obtained subsequent to the stipulated time under Ex:.A.1 agreement of sale, that too in the name of D.W.1, the son of the defendant. It is one thing to say that the income tax clearance certificate is not at all necessary and it is yet another thing to say that the income tax clearance certificate was obtained subsequent to the expiry of six months time stipulated under Ex.A. 1. Whatever the reason may be, the fact remains that Ex.B-7 was obtained subsequent to the stipulated time. Apart from this aspect of the matter, thought burden is on the plaintiffs to establish readiness and willingness to perform their part of the contract, the conduct of the defendant also cannot be totally ignored. Here is a case where, whatever the reasons may be, the defendant had not chosen to enter the witness box and the son of the defendant was examined as D.W.1. No doubt he had deposed in relation to certain-facts. There is some controversy between the parties on the aspect how far this evidence of D.W.1 can be relied upon as a power of attorney representing the father. It may be true that the power of attorney having knowledge of certain facts may depose about those facts. It is also not clear whether D.W.1 is having knowledge about all the facts relating to Ex.A. 1 transaction or not. In the light of the facts and circumstances adverse inference had been drawn by the learned Judge and ultimately the suit was decreed. 12. It is really unfortunate that except the evidence of P.W.1 there is no other evidence available on record. It is also true that the fact that readiness and willingness to perform their part of the contract is on the plaintiffs and the plaintiffs are bound to establish the same. 12. It is really unfortunate that except the evidence of P.W.1 there is no other evidence available on record. It is also true that the fact that readiness and willingness to perform their part of the contract is on the plaintiffs and the plaintiffs are bound to establish the same. In the light of the nature of questions posed to P.W.1 inasmuch as it appears that the Counsel representing the defendant was not particular on this aspect, may be the plaintiffs had not chosen to adduce further evidence on this aspect. It is no doubt true that at the earliest point of time in the notice such specific plea of approaching the defendant even prior to the expiry of the stipulated time of six months had not been specified. Equally so, specific plea in this regard is absent in the plaint, but however the evidence of P.W.1 is available on record. Apart from this aspect of the matter, it should have been more advisable or suggestible if the plaintiffs had chosen to adduce further evidence. It is no doubt brought the notice of this Court that both Abbasani Mallaiah and Abbasani Narsama, plaintiffs 12 and 3 are no more in this World. But that is not the end of the matter by itself. The persons concerned with the transaction or the persons having knowledge about the availability of funds or on the aspect of readiness and willingness to perform their part of the contract at all times during the relevant period should have been examined. Some evidence apart from the evidence of P.W.1 would have been more suggestible for the purpose of arriving at a proper decision in the matter. However in the light of the conduct of the defendant not entering the witness box, drawing adverse inference in the case also cannot be found fault. Inasmuch as the primary burden being on the plaintiffs to discharge the burden of proof relating to readiness and willingness to perform their part of the contract, this Court is of the considered opinion that the findings recorded by the learned Judge cannot be sustained and accordingly the said findings are hereby set aside. 13. Inasmuch as the primary burden being on the plaintiffs to discharge the burden of proof relating to readiness and willingness to perform their part of the contract, this Court is of the considered opinion that the findings recorded by the learned Judge cannot be sustained and accordingly the said findings are hereby set aside. 13. Point No.2; In the light of the facts and circumstances referred to supra, the Judgment and Decree of the trial Court are hereby set aside and the matter is remanded to the learned Judge for the purpose of affording opportunity to both the parties to let in further evidence on all the aspects inclusive of the aspect of readiness and willingness on the part of the plaintiffs to perform their part of the contract and dispose of the same in accordance with law within a period of six months from the date of receipt of this order. The Appeal is accordingly allowed to the extent indicated above. No order as to costs. --X—