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2007 DIGILAW 697 (AP)

PRASHANT K. RAVI v. S. NARSAIAH (DIED) PER L. RS

2007-07-25

P.S.NARAYANA

body2007
( 1 ) THIS is an appeal filed by unsuccessful plaintiffs in O. S. No. 84/86 on the file of IV-Additional Judge, City Civil Court, Hyderabad. ( 2 ) THE respondent-defendant died during the pendency of the appeal and R. 2 to r. 6 were brought on record as the legal representatives of the deceased sole respondent by Order dt. 18-6-1999 in C. M. P. No. 3315/98. ( 3 ) SRI Dhanamjay, the learned Counsel representing appellants had taken this court through the respective pleadings of the parties, the evidence available on record and made elaborate submissions that in the facts and circumstances of the case instead of decreeing the suit granting the relief of specific performance decreeing the suit for refund of Rs. 1,00,000/- with interest at 12% per annum from the date of suit till the date of realization cannot be sustained. The learned Counsel also pointed out that this relief was granted though specifically not prayed for exercising power under Order VII Rule 7 of the Code of Civil Procedure. The Counsel would maintain that the mere admission made by p. W. 1 relating to the delivery of cheque by the father would not seriously alter the situation since the delivery of cheque by the father would not amount to the payment of consideration by the father since the cheque was issued by the 1st plaintiff - P. W. 1. Even otherwise, when the theory of obtaining signatures on the blank papers had been introduced since the signatures are not in dispute and the payment of part of consideration also not being in serious dispute, the suit should have been decreed. The specific pleading is that the defendant approached the 1st plaintiff. D. W. 1's evidence is as vague as it can be and d. W. 2's evidence does not throw much light on the question in controversy. The counsel also would further submit that the role of the father was not pleaded and merely because P. W. 1 deposed in that fashion, that by itself cannot be taken as a suspicious circumstance. For the hand-loan episode, absolutely there is no evidence. The execution of Ex. A. 1 was proved in accordance with law by examining P. Ws. 1 and 2. The Counsel also commented that the non-issuance of reply also is an important fact that has to be taken into consideration. For the hand-loan episode, absolutely there is no evidence. The execution of Ex. A. 1 was proved in accordance with law by examining P. Ws. 1 and 2. The Counsel also commented that the non-issuance of reply also is an important fact that has to be taken into consideration. The counsel also pointed out to the variance between pleading and proof. The counsel also explained relating to the suspicion expressed by the trial Court in relation to the stamp paper and also certain simple discrepancies. The Counsel also explained that the stamp was purchased on behalf of 1st plaintiff by a. Narsaiah and when the hand loan episode was not established and when the execution of the agreement of sale Ex. A. 1 in question had been duly proved and relating to the actual value of the property except the statement of D. W. 1, when there is no acceptable evidence, negativing the relief of specific performance cannot be sustained. The learned Counsel in all thoroughness had taken this court through the oral and documentary evidence and also commented that the recitals in Ex. A. 13 also would not seriously alter the situation if this Court is satisfied that the agreement of sale had been duly proved. The Counsel also placed reliance on several decisions to substantiate his submissions. ( 4 ) PER contra Sri Vijaysen Reddy, the learned Counsel representing the present respondents, would submit that in the facts and circumstances the non- examination of the father is definitely fatal to the case of the plaintiffs and the Counsel also would submit at present the father also is not alive. The learned Counsel also would submit that the names of the witnesses already had been typed and this would probablize the defence theory that the signatures were taken advantage of and the agreement of sale Ex. A. 1 was fabricated. The Counsel also would explain that it is a residential portion and in that view of the matter, inasmuch as the tenants continue to be in possession of the respective portions, the stand taken by P. W. 1 cannot be believed. The Counsel also made elaborate submissions relating to. T. Clearance and U. L. C. Clearance as well. The Counsel also would point out that Ex. A. 13 - the G. P. A. did not authorize the father but entered into an agreement of sale of this nature. The Counsel also made elaborate submissions relating to. T. Clearance and U. L. C. Clearance as well. The Counsel also would point out that Ex. A. 13 - the G. P. A. did not authorize the father but entered into an agreement of sale of this nature. Hence, in this view of the matter, the delivery of cheque by father would assume some importance. The Counsel also would maintain that the pleading is that P. W. 1 delivered the cheque but the evidence is otherwise - the father had delivered the cheque as G. P. A. In the light of the overall facts and circumstances since several suspicious circumstances had been pointed out, the trial Court is well justified in negativing the relief of specific performance. The learned Counsel pointed out that when the delivery of cheque by the father in relation to the loan transaction had been believed, the trial Court ought not have decreed the suit even for the refund of amount but however the Counsel would submit that inasmuch as on the ground of equity, the refund had been ordered, the legal representatives are not seriously disputing the same. The Counsel also made certain submissions that even certain adverse findings recorded can be agitated in an appeal, without preferring independent appeal. While concluding, the counsel would submit that merely because the agreement of sale had been proved, always it is not necessary to decree the suit for specific performance and the relief of specific performance being a discretionary relief, the discretion to be exercised on sound judicial principles. The Counsel also placed strong reliance on certain decisions. ( 5 ) HEARD the Counsel on record and perused the oral and documentary evidence available on record and the findings recorded by the trial Court. ( 6 ) THE following points arise for consideration in this appeal:- 1) Whether negativing the relief of specific performance be justified in the facts and circumstances of the case? 2) Whether granting of the relief of refund in the absence of specific plea or specific prayer granted by the trial Court to be confirmed or to be disturbed in the facts and circumstances of the case? 3) If so, to what relief the parties would be entitled to? 2) Whether granting of the relief of refund in the absence of specific plea or specific prayer granted by the trial Court to be confirmed or to be disturbed in the facts and circumstances of the case? 3) If so, to what relief the parties would be entitled to? ( 7 ) POINTS 1 and 2:- The plaintiffs in O. S. No. 84/86 on the file of IV- additional Judge, City Civil Court, Hyderabad, had preferred this appeal. As already specified supra, the respondent - original defendant is no more and the legal representatives are contesting the litigation. The parties hereinafter would be referred to as plaintiffs and defendant as shown in O. S. No. 84/86 for the purpose of convenience. ( 8 ) IT is averred in the plaint that the defendant approached the plaintiffs offering to sell his property for Rs. 2,00,000/- to meet his expenses and requirements and the plaintiff agreed to purchase the same for Rs. 2,00,000/ -. The defendant executed an agreement of sale on 25-4-1985. The plaintiffs paid an advance of Rs. 1,00,000/- under a cheque dt. 25-4-1985 on Grindeys Bank and the defendant received the said advance of Rs. 1,00,000/- and also acknowledged the same. Under clause 3 of the agreement the plaintiff shall pay the balance amount of Rs. 1,00,000/- within seven months from the date of agreement and on payment of the same, the defendant shall execute a registered sale deed, as otherwise, the plaintiff shall obtain the specific performance of agreement of sale, through the Court and also for costs. The defendant agreed to produce the required permission under Urban Land Ceiling for sale in favour of the plaintiff and also Income Tax clearance certificate within the stipulated period of seven months from the date of agreement. The stipulated period expired on 25-11-1985 and the plaintiffs are always ready and willing to pay the balance amount of Rs. 1,00,000/- and they have been requesting the defendant to receive the same and execute the sale deed after complying with the formalities. The plaintiffs also issued a legal notice on 15-11-1986 when the defendant failed to execute the sale deed within the stipulated time. The defendant was also informed that if he fails to do so within three days they will invoke the clause of the agreement and take necessary legal steps. The plaintiffs also issued a legal notice on 15-11-1986 when the defendant failed to execute the sale deed within the stipulated time. The defendant was also informed that if he fails to do so within three days they will invoke the clause of the agreement and take necessary legal steps. The defendant received the notice on 19-11-1985 by endorsing the same on the Xerox copy of the notice. They sent a copy of the legal notice to the defendant's house also, which was returned unserved and the returned cover is filed. Hence, the plaintiffs filed the suit for specific performance of agreement of sale by receiving rs. 1,00,000/ -. ( 9 ) THE defendant, who is no more, denied the allegations and pleaded that he is the absolute owner and possessor of the double storied building bearing No. 2- 2-1123/2/b at Nallakunta, Hyderabad. It is false that he agreed to sell the same for Rs. 2,00,000/- and that he executed an agreement of sale on 25-4-1985 in favour of the plaintiffs and that he received Rs. 1,00,000/- as advance by cheque. It is stated that the defendant and the plaintiffs are friends and the defendant was in need of amount for his business requirement and he requested plaintiff No. 1's father to accommodate him and advance Rs. 1,00,000/- for a period of one year and he also agreed to pay the interest and accordingly the plaintiff No. 1's father agreed to advance Rs. 1,00,000/- on condition that the defendant shall deposit the title deed pertaining to the profit since the defendant is in urgent need and he has no alternative except to agree for the said condition. Hence the father of the first plaintiff obtained the title deed and also obtained signature of the defendant on the blank non-judicial stamp and also on some white and other papers and the defendant with full confidence on the 1st plaintiff's father put his signatures on the above blank papers. The defendant never intended to sell his house as alleged and the plaintiff also never intended to sell his house as alleged and the plaintiff also never intended to purchase it. It is false that the defendant should pay the amount within the period of seven months. The suit filed with a view to grab the valuable property of the defendant. It is false that the defendant should pay the amount within the period of seven months. The suit filed with a view to grab the valuable property of the defendant. The defendant denied the factum of validity and unenforceable of the agreement dt. 25-4-1985. The agreement is void and illegal and unenforceable. The other allegations are denied. On receipt of notice from the plaintiff, the defendant approached the plaintiff and enquired about the allegations. The first plaintiff explained and got believed the defendant saying that the said notice was got issued formerly and promised to withdraw the same as soon as he received the amount of Rs. 1,00,000/- and believing the said statement of the 1st plaintiff's father, the defendant did not give any reply. Later, in the second week of December, the defendant approached the first plaintiff's father with the sum of Rs. 1,00,000/- and requested him to receive the same and return the title deed and also the blank papers and other signed papers, signed by him, and the first plaintiff's father evaded to receive the amount and return the documents with malafide intention to grab the property. The question of readiness and willingness on the part of the plaintiff to pay the balance consideration does not arise. Since the said document is unenforceable and void and the defendant is ready even now to repay the said amount. ( 10 ) THE following issues were settled by the trial Court:- 1) Whether the plaintiffs are entitled for specific performance of an agreement of sale from the defendant after receiving the balance consideration of Rs. 1/- lakh in respect of the suit schedule property as prayed for? 2) Whether the suit agreement of sale dated 25-4-1985 is void and illegal and unenforceable against the defendant? 3) To what relief? ( 11 ) THE first plaintiff examined himself as P. W. 1 and the attestor was examined as P. W. 2. P. Ws. 1 and 2 categorically deposed relating to the execution of Ex. A. 1. As against this evidence, the evidence of D. W. 1 and D. W. 2 is available on record. D. W. 1 deposed in detail relating to the defence taken by him in the written statement and D. W. 2 is just a formal witness. Ex. A. 1 is agreement of sale; Ex. A. 2 is the notice; Ex. A. 1. As against this evidence, the evidence of D. W. 1 and D. W. 2 is available on record. D. W. 1 deposed in detail relating to the defence taken by him in the written statement and D. W. 2 is just a formal witness. Ex. A. 1 is agreement of sale; Ex. A. 2 is the notice; Ex. A. 3 is the postal acknowledgement; ex. A. 4 to Ex. A. 8 are Xerox copies of the receipts of Punjab and Sind Ban Ltd. ; ex. A. 9 is the Xerox copy of passport; Ex. A. 10 and Ex. A. 11 are the original transfer of residence issued by Air Custom, New Delhi, dt. 28-1-1985; Ex. A. 12 is the pass book of Grindlays Bank Ltd. , and Ex. A. 13 is the G. P. A. dt. 27-3-1981. The trial Court at paras 8 and 9 observed as hereunder:- "it is clear from his evidence, that he borrowed the amount of rs. 1,00,000/- from the father of the first plaintiff and did not execute the suit agreement. Admittedly, cheque for Rs. 1,00,000/- was given by the father of p. W. 1 and not P. W. 1. Since it is the specific case of the defendant the plaintiff ought to have examined the father of P. W. 1 and he was kept back from the Court and was not made available for cross examination of the defendant to deny the contention of the defendant. The father of P. W. 1 is a material witness in the case and no reason is given for not examining him and adverse presumption has to be drawn against the plaintiffs. The evidence of first plaintiff as P. W. 1 clearly shows that he was not present when his father gave the cheque for Rs. 1,00,000/- and he did not sign ex. A. 1 though the agreement is between the defendant and himself and his wife. It also shows that he was not present when Ex. A. 1 was executed. He might be at hyderabad but he was not present, when Ex. A. 1 was executed. The presence of the second plaintiff is also doubtful. As otherwise she would have signed Ex. A. 1. P. W. 1 did not explain as to why his father had to pay the amount by way of cheque to the defendant when he obtained the suit agreement Ex. A. 1 was executed. The presence of the second plaintiff is also doubtful. As otherwise she would have signed Ex. A. 1. P. W. 1 did not explain as to why his father had to pay the amount by way of cheque to the defendant when he obtained the suit agreement Ex. A. 1. When he was examined in chief on 8-4-1988, he stated as if the plaintiffs gave the cheque. When he was recalled and further examined on 2-8-1989 he stated his father gave the cheque. It was not stated even in the plaint that P. W. 1's father gave the cheque. He tried to explain that his father is his power of attorney and hence he gave the cheque but it is not alleged in the plaint. It shows that it is clearly an after thought to explain the issuance of the cheque by the father, who is not examined. There is no proof that P. W. 1's father issued the cheque towards the advance sale consideration under the agreement Ex. A. 1, as it was not given in the presence of the witnesses as is clear from the evidence of P. W. 2, who is one of the attestors of Ex. A. 1. The evidence of P. W. 2 clearly shows that ex. A. 1 was not executed by defendant and the must have attested the document ex. A. 1, which was typed on the papers containing the signatures of the defendant. " ( 12 ) THE Counsel on record while making elaborate submissions relied upon the decision of the Division Bench of this Court in J. LAKSHMAN RAO AND TWO OTHERS vs. ELLANDU RAVINDER AND ANOTHER and also THOTA KANAKADURGA VARAPRASAD RAO vs. MADAPATI CHANDRA SEKHARA REDDI; LAHIRI vs PREM PRAKASH; S. V. SANKARALINGA NADAR vs RATNASWAMI NADAR AND OTHERS; INDIAN BANK, CHITTOOR vs V. R. VENKATARAMAN AND others; SUGHRA BEE VS. KAREEZ FATIMA QURESHI; MANICKATHAMMAL v NALLASAMI; sarju PERSHAD RAMDEO SAHU v JWALESHWARI PRATAP NARAIN SINGH; MADHUSUDAN DAS v narayani BAI; STATE OF 2. B. v MIR FAKIR MOHD. ; P. PANDIT RAO (Died Per LRs) and OTHERS v. K. DAMODAR AND ANOTHER; S. VENKATESWAR RAO vs. STATE OF A. P. ; and VINOD KUMAR vs. SURJIT KUMAR. KAREEZ FATIMA QURESHI; MANICKATHAMMAL v NALLASAMI; sarju PERSHAD RAMDEO SAHU v JWALESHWARI PRATAP NARAIN SINGH; MADHUSUDAN DAS v narayani BAI; STATE OF 2. B. v MIR FAKIR MOHD. ; P. PANDIT RAO (Died Per LRs) and OTHERS v. K. DAMODAR AND ANOTHER; S. VENKATESWAR RAO vs. STATE OF A. P. ; and VINOD KUMAR vs. SURJIT KUMAR. ( 13 ) THE non-examination of the father, especially in the context of admission made by P. W. 1 relating to delivery of cheque and the defence taken by D. W. 1 relating to the loan episode, had been commented upon by the Counsel on record in elaboration. It appears the said father being no more, there is no opportunity of examining the father. It is pertinent to note that in the light of the stand taken by respondent-defendant the burden is heavy on the defendant even as observed by the trial Court. The question is whether on the aspect of the episode of loan or on the aspect of undue hardship, principally on the ground that the value of the property as specified in Ex. A. 1, the sale consideration is exorbitantly low, the respondent had not chosen to examine any witness or had not chosen to place acceptable evidence before the Court. It is true that the learned Judge pointed out certain suspicious circumstances, these aspects appear to be certain developments in the evidence. The purchase of the stamp paper as such may not alter the situation when the stand taken by the defendant is that the signatures are of that of defendant as admitted by D. W. 1. Apart from all these aspects of the matter, there is yet another problem. It is the specific case of the plaintiff and further as deposed by P. W. 1 that the amount by way of cheque had been paid by him and the deduction was made from his account only and it is immaterial if the delivery of cheque had been given by the father of P. W. 1 as such. This variance by itself cannot be inferred that the payment of consideration was by the father and not by the son - P. W. 1. It is no doubt a long pending litigation. It is also true that always the relief of specific performance automatically need not be decreed merely because the agreement of sale Ex. This variance by itself cannot be inferred that the payment of consideration was by the father and not by the son - P. W. 1. It is no doubt a long pending litigation. It is also true that always the relief of specific performance automatically need not be decreed merely because the agreement of sale Ex. A. 1 is said to have been proved in accordance with law. It is also true that the discretionary relief of specific performance to be granted or to be negatived based on sound judicial principles. It is also true that d. W. 1 also was agreeable for the repayment of the amount and equally the Counsel representing the legal representatives would submit before the Court that these parties are ready and willing to refund the said amount. In the event of the court arriving at a conclusion that there is a breach of contract, certain other further consequences also flow there from. ( 14 ) ON a careful analysis of the pleadings, this Court is also satisfied that the respective pleadings are devoid of certain factual details and the improvements made at the stage of evidence, had been commented upon. Hence, in the light of the facts and circumstances, especially the plea of undue hardship and the valuation of the property, this Court is of the considered opinion that the evidence available on record to arrive at either of the conclusions, either in favour of the plaintiffs or in favour of the original defendant and the present legal representatives of the defendant, being highly insufficient, and in the light of the peculiar findings recorded by the trial Court ordering refund even in the absence of the prayer for the alternative relief, this Court is of the considered opinion that this is a fit matter to make an order of remand to permit the parties to put in additional pleadings as well and also permit the parties to let in further evidence and record appropriate findings in accordance with law. It is true that the original defendant is no more and at present the legal representatives are available and in view of the limitations placed on the legal representatives in putting up further amendments to the original written statement, liberty is given to the respondents to put in additional written statements, if they are so advised, only within the limitations permissible by law. ( 15 ) POINT No. 3:_ In the light of the findings recorded above, this Court is left with no other option, except to set aside the Decree and Judgment of the trial Court and make an order of remand for the purpose of affording opportunity to both the parties, to put in additional pleadings as specified supra and also to let in further evidence and record appropriate findings in accordance with law. In view of the fact that the matter is an old one, the learned Judge to give top priority for the early disposal of the matter. As this Court is making an order of remand, the parties to bear their own costs.