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2008 DIGILAW 811 (AP)

M. Harinarayana @ Haribabu v. P. Swaroopa Rani

2008-09-23

B.PRAKASH RAO, R.KANTHA RAO

body2008
JUDGMENT: (Per Hon'ble Mr Justice R.Kantha Rao) 1. A.S.No.271 of 2006 is directed against the judgment and decree dated 29.04.2006 passed in O.S.No.44 of 2002 by the I Additional District Judge, Kadapa. 2. The appellant filed the suit for specific performance of agreement to sell, dated 28.03.2001 executed by the respondent and also for permanent injunction restraining the respondent from interfering with his possession and enjoyment of the schedule mentioned property, which is a cinema theatre. The suit was dismissed without costs. Feeling aggrieved, the appellant/plaintiff preferred this appeal. 3. Cross-objections (S.R.) No.6858 of 2006 are filed by the respondent challenging the finding of the trial Court that the respondent did not disclose to the appellant all the debts due upon the schedule mentioned property as on the date of the suit agreement to sell. 4. FACTS: The respondent who is the owner of M/s. Sri Venkateshwra Theatre, Nagarajupalli, Kadapa District hereinafter referred to as schedule mentioned property, agreed to sell the same to the appellant for a consideration of Rs.64,00,000/- and the appellant also agreed to purchase the same. On 28.03.2001 the respondent executed an agreement to sell the schedule mentioned property to the respondent for an amount of Rs.64,00,000/-. Out of the total sale consideration, the appellant received an amount of Rs.17,12,000/- on the date of the agreement to sell. Subsequent thereto, admittedly the appellant paid some amounts to the respondent/defendant on various occasions and also paid to the institutions for which the respondent became due. In all the appellant paid total consideration of Rs.35,47,000/- as on 25.10.2001 to the respondent. 5. It was stipulated in the agreement that if a good and marketable title is made and the property is found to be free from all encumbrances, attachments, charges and other claims, the appellant has to pay the balance of sale consideration by 28.03.2001 in three equal instalments and the respondent has to clear all the debts secured and unsecured to the government and non-government, private banks, other financial institutions etc. from out of the payment of sale proceeds by the purchaser and keep the said schedule mentioned property free from all encumbrances, attachments, charges etc. The respondent shall deliver vacant possession of the schedule mentioned property after receiving the entire sale consideration from the appellant and execute registered sale deed in his favour. 6. from out of the payment of sale proceeds by the purchaser and keep the said schedule mentioned property free from all encumbrances, attachments, charges etc. The respondent shall deliver vacant possession of the schedule mentioned property after receiving the entire sale consideration from the appellant and execute registered sale deed in his favour. 6. It was further stipulated in the agreement that if a good and marketable title is not made or the property is found to be subject to any encumbrances, attachments or charges or other claims or demands, the appellant shall be at liberty to rescind the agreement and the respondent shall in that event and on demand by the appellant repay whatever the sum paid by the respondent together with interest @ 10% per annum. 7. It was also stipulated under the agreement that if the respondent fails or neglects to complete the sale after the title being made out as aforesaid or otherwise to carry out any one or more of the obligations on her part, as provided in the agreement or otherwise required by law, the appellant will be at liberty to enforce the specific performance of agreement by instituting legal proceedings or at his option, may sue the vendor for recovery of the earnest money with interest, costs and other reliefs. It was further stipulated that if the appellant fails to pay the balance of sale price within the period prescribed under the agreement, the earnest money shall be forfeited to the respondent or she may at her option enforce specific performance of the agreement in which event the appellant will also be liable to pay the costs and expenses incurred to such suit or proceeding. 8. It is the contention of the appellant that at the time of entering into agreement, the respondent disclosed that an amount of Rs.16,00,000/- was due to Vijaya Bank, Tirupathi under mortgage and with the consent of the respondent, the appellant also paid the said amount. But, in spite of clearing the debt due to Vijaya Bank, Tirupathi, the respondent failed to deliver the title deeds to the appellant, on that the appellant entertained suspicion and made enquiries about the debts concerning the schedule mentioned property. But, in spite of clearing the debt due to Vijaya Bank, Tirupathi, the respondent failed to deliver the title deeds to the appellant, on that the appellant entertained suspicion and made enquiries about the debts concerning the schedule mentioned property. The appellant came to know that the respondent also mortgaged the schedule mentioned property to the Union Bank of India, Tirupathi and there were also other secured and unsecured debts including the dues of sales tax, entertainment tax, property tax, professional tax, electricity consumption charges, telephone bills etc. pertaining to the schedule mentioned property and the respondent failed to discharge all the debts. Since the respondent despite receiving part of sale consideration failed to discharge the debts due to various financial institutions and also failed to pay the tax, the appellant took the initiative to repay the debts, approached the Union Bank of India, Tirupathi and arrived at one time settlement with the bank authorities to pay an amount of Rs.27,00,000/- from out of the balance of sale consideration on condition that the defendant shall clear of all other dues to the government and other financial institutions and to execute registered sale deed in favour of the appellant. It is said that the respondent having agreed to the said proposal, resiled from her promise. On that the appellant got issued Ex.A-12 legal notice, dated 28.07.2002 to the respondent for which she sent Ex.A-13 reply, dated 06.08.2002. 9. Further it was submitted by the appellant that there was a compromise between him and the respondent effected through the elders namely PW-2 (K. Eswara Reddy) and G. Chinna Raja and the respondent also delivered possession of the schedule mentioned property to the appellant on the same date. Under Ex.A-15 receipt by receiving the balance of sale price of Rs.4,03,000/- and authorizing the appellant to pay an amount of Rs.27,00,000/- directly to Union Bank of India towards the mortgage debt in respect of schedule mentioned property. Thereafter, when the respondent failed to execute the registered sale deed in favour of the appellant, the appellant filed the suit stating that he was ready and willing to pay the balance of sale consideration of Rs.27,00,000/- to Union Bank of India, provided the respondent will repay the above mentioned dues to the government and various financial institutions. Thereafter, when the respondent failed to execute the registered sale deed in favour of the appellant, the appellant filed the suit stating that he was ready and willing to pay the balance of sale consideration of Rs.27,00,000/- to Union Bank of India, provided the respondent will repay the above mentioned dues to the government and various financial institutions. He mentioned in the plaint that he is prepared to deposit the balance of sale consideration in the Court or he would pay the same to the Union Bank of India if so directed. 10. Nextly it was submitted by the appellant that the respondent got filed O.S.No.9 of 2001 on the file of the District Judge, Kadapa through her daughter Nirupama within 11/2 months from the date of the agreement against her husband, son and another daughter and Union Bank of India falsely claiming that the schedule mentioned property is the ancestral property of her father and that the respondent has no right to sell or mortgage the said property and alleging that Nirupama has 1/4th share in the property. It is further submitted that the respondent and others deliberately remained ex parte in the said suit enabling Nirupama to obtain a preliminary decree on 07.12.2001. After obtaining the ex parte decree, Nirupama sent a legal notice dated 25.08.2003 to the appellant demanding him to surrender the possession of the schedule mentioned property, whereupon he filed a criminal complaint in C.C.No.2 of 2002 on 05.12.2002 against the respondent and others in the Court of the Chief Judicial Magistrate, Kadapa. Nextly it was submitted by him that the respondent got filed two original suits viz. O.S.No.101 of 2002 and O.S.No.102 of 2002 on the file of the Senior Civil Judge, Kadapa basing on the promissory notes, deliberately remained ex parte in the said suits and facilitated the plaintiffs therein to obtain ex parte orders of attachment before judgment against the schedule mentioned property and the interim orders have been made absolute on 30.09.2002. Thereafter, the appellant filed claim petitions in I.A.Nos.841 and 854 of 2002. 11. Thereafter, the appellant filed claim petitions in I.A.Nos.841 and 854 of 2002. 11. On the other hand, it was contended by the respondent before the trial Court that as per the terms of the agreement, the appellant has to pay the balance of sale consideration on or before 31.12.2001, had he been paid the same, she would have paid the debts and dues to the various financial institutions by bargaining with them and the appellant having failed to pay the balance of sale consideration within the stipulated period, is not entitled for a decree of specific performance. The respondent submitted that at the time of agreement, she disclosed all the secured and unsecured debts relating to the schedule mentioned property to the appellant and the appellant agreed to pay the entire sale consideration on or before 31.12.2001 to enable her to bargain with the bank officials and other authorities for reduction of interest by availing the facility of one time settlement. It was further contended that there was no mediation through PW-2 and G.Chinna Raja, she did not receive an amount of Rs.4,03,000/- under Ex.A-15 from the appellant, never authorized him to repay the mortgage debt of Rs.27,00,000/- to Union Bank of India, Tirupathi directly and the said Ex.A-15 receipt is a forged document. 12. ISSUES SETTLED BY THE TRIAL COURT: 1) Whether the plaintiff is entitled for specific performance of agreement of sale, dated 28.03.2001 in respect of the suit property? 2) Whether the time is the essence of contract? 3) Whether the payment of Rs.4,03,000/- made by the plaintiff to the defendant on 18.09.2002 as pleaded by the plaintiff is true and correct? 4) Whether the plaintiff is entitled for permanent injunction sought for? 5) To what relief? 13. Before the Court below, PWs.1 and 2 were examined and Exs.A-1 to A-46 were marked on behalf of the appellant/plaintiff. DWs.1 to 4 were examined and Exs.B-1 to B-4 were marked on behalf of the respondent/defendant and Exs.C-1 to C-6 were also marked by the Court. 14. FINDINGS OF THE TRIAL COURT: Even though it is recited in Ex.A-4 agreement to sell that the appellant has to pay the entire balance of sale consideration by 31.12.2001 and whereafter the respondent agreed to execute registered sale deed in his favour, since the contract relates to immovable property, the time cannot be considered to be the essence of the contract. Ex.A-15 receipt under which the appellant was said to have paid an amount of Rs.4,03,000/- to the respondent is a forged document having regard to the evidence of DW-4 the handwriting expert and also in view of the facts and circumstances of the case and the appellant did not obtain possession of the schedule mentioned property on 18.09.2002 under Ex.A-15 as contended by him. Since the possession of the appellant was not under Ex.A-4 agreement to sell and also under Ex.A.15 receipt, he is not entitled to protect his possession under law and therefore cannot seek a decree of permanent injunction against the respondent. Though the appellant/plaintiff is justified in not paying the balance of sale consideration within the stipulated date, he is not entitled for decree of specific performance in view of the fact that he did not approach the Court with clean hands and acted contrary to the terms of Ex.A-4 agreement to sell. 15. SUBMISSIONS IN THE APPEAL: The learned counsel appearing for the appellant would submit that the respondent willfully failed to disclose the liabilities relating to the schedule mentioned property. Subsequently pursuant to the mediation by PW-2 and another, she received an amount of Rs.4,03,000/- under Ex.A-15 receipt on18.09.2002 and delivered possession of the schedule mentioned property to the appellant and under such circumstances, the trial Court ought to have passed a decree granting specific performance in favour of the appellant and the trial Court grievously erred in holding that Ex.A-15 receipt is a forged document totally relying on the evidence of DW-4 who is a handwriting expert. 16. On the other hand, the learned counsel appearing for the respondent would submit that the appellant acted contrary to the terms of the agreement by not paying the balance sale consideration to the respondent, since it is specifically stipulated in the agreement that by 31.l2.2001, he has to pay the balance of sale consideration in three instalments, he cannot take up the task of discharging the debts relating to the schedule mentioned property, on failure by him to pay the balance of sale price, the respondent could not discharge the debts. He would further submit that Ex.A-15 receipt is proved to be a forged document and in fact, no possession was delivered to the appellant under Ex.A-15 receipt on 18.09.2002 and the respondent did not receive any balance of sale price under Ex.A-15 and having regard to all these circumstances, the trial Court is justified in refusing the decree of specific performance to the appellant and it's decision refusing the relief of permanent injunction is also factually and legally correct and under these circumstances the findings of fact and law arrived at by the trial Court cannot be interfered with in this appeal. 17. The points for determination in this appeal: 1) Whether the appellant is entitled for decree of specific performance in terms of Ex.A-4 agreement to sell, dated 28.03.2001? 2) Whether the appellant is entitled for a decree of perpetual injunction? 3) Whether the finding of the trial Court that the respondent did not disclose the mortgages of the schedule mentioned property to Union Bank of India and Mansi Financiers Limited, Chennai is liable to be set aside by allowing the cross-objections? 18. POINT NO. 1: Most of the facts are admitted in this case and only few of them are controversial. The execution of Ex.A-4 agreement to sell, dated 28.03.2001 and the terms and conditions recited therein, are not disputed by the parties. It is also not in dispute that an amount of Rs.35,47,000/- was paid by the appellant to the respondent by 25.10.2001 towards balance of sale consideration. The only disputed fact is that pursuant to mediation made by PW- 2 and one G.Chinna Raja, the respondent received an amount of Rs.4,03,000/- under Ex.A-15 receipt on 18.09.2002 and authorized the appellant to pay an amount of Rs.27,00,000/- to Union of India, Tirupathi which amount became due on the schedule mentioned property under a mortgage. According to the respondent even on the date of agreement, she disclosed all the dues, liabilities and encumbrances on the schedule mentioned property to the appellant and she never authorized the appellant to pay the dues. Her contention is that had the balance of sale consideration been paid by the appellant to her by the stipulated date, she would have cleared all the debts and dues relating to the schedule mentioned property and would have ensured the good and marketable title in regard to the schedule mentioned property. 19. Her contention is that had the balance of sale consideration been paid by the appellant to her by the stipulated date, she would have cleared all the debts and dues relating to the schedule mentioned property and would have ensured the good and marketable title in regard to the schedule mentioned property. 19. The learned counsel appearing for the appellant would contend that the balance of sale consideration could not be paid by the appellant owing to the conduct of the respondent in not disclosing the debts and liabilities relating to the schedule mentioned property and in view of the fact that the laches are on the part of the respondent, the relief of specific performance shall not be refused to the appellant. Reliance is placed by the learned counsel on PRAKASH CHANDRA v. ANGADLAL AND OTHERS wherein the Apex Court held as follows: "The ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. In the present case, the conduct of the appellant has not been such as to disentitle him to the relief of specific performance. He has acted fairly throughout, and there is nothing to show that by any act of omission or commission he encouraged Mohsinali and Qurban Hussain to enter into the sale with the first and second respondents. There is no evidence that the appellant secured an unfair advantage over Mohsinali and Qurban Hussin when he entered into the agreement. No is there anything to prove that the performance of the contract would involve the respondents in some hardship which they did not foresee. In our opinion, there is no reason why the appellant should not be granted the relief of specific performance." 20. Before appreciating the contention urged by the learned counsel, it is necessary to have a glance at the terms and conditions of the agreement. It was specifically agreed under Ex.A-4 agreement to sell, that the appellant has to pay the defendant the balance of sale consideration of Rs.38.88 lakhs in 9 months from the date of execution of Ex.A-4 agreement to sell i.e. by 28.03.2001 in three equal quarterly instalments. It was specifically agreed under Ex.A-4 agreement to sell, that the appellant has to pay the defendant the balance of sale consideration of Rs.38.88 lakhs in 9 months from the date of execution of Ex.A-4 agreement to sell i.e. by 28.03.2001 in three equal quarterly instalments. On her part, the respondent agreed to clear of all the debts and dues pertaining to the schedule mentioned property and make the schedule mentioned property free from all encumbrances and execute regular registered sale deed in favour of the appellant. 21. It was specifically stipulated in Clause 6 of the agreement that if a good and marketable title is not made out by the respondent after receiving the balance sale price and the property is still found to be subject to any encumbrances, attachments or charges or other claims, the respondent shall be at liberty to rescind the contract and the respondent in such an event and on demand by the appellant, shall repay the amount paid by the appellant together with interest @ 10% per annum. 22. It was further provided under Clause 7 of the agreement that if a good and marketable title is made out, the respondent fails to execute registered sale deed, the appellant will be at liberty to enforce specific performance of agreement by instituting legal proceedings or at his option, may sue the respondent for recovery of the earnest money with interest, costs and other reliefs. It was also provided under the agreement that if on the title being found good and marketable, the appellant fails to perform his part of contract within the time aforesaid, the earnest money shall be forfeited to the respondent or at her option, the respondent may enforce specific performance of the agreement and in such an event the appellant will also be liable to pay the costs and expenses of all the proceedings of specific performance. 23. Thus, Ex.A-4 agreement executed between the parties is unambiguous and the terms of the agreement contemplate all situations which are likely to arise in future between the parties and the remedies have been provided under the agreement for all such events which may take place in future. 23. Thus, Ex.A-4 agreement executed between the parties is unambiguous and the terms of the agreement contemplate all situations which are likely to arise in future between the parties and the remedies have been provided under the agreement for all such events which may take place in future. Nowhere in the agreement it is stipulated that instead of paying the sale consideration to the respondent, the appellant can pay the dues or debts relating to the schedule mentioned property directly and can treat it as paying the balance of sale consideration to the respondent. The agreement mandates that he has to pay the balance of sale consideration by 31.12.2001 directly to the respondent. Admittedly the appellant failed to do so. His version is that subsequently he came to know that there were several debts and dues relating to the schedule mentioned property, which were not cleared by the respondent. It is true that there were several dues and loans relating to the schedule mentioned property to be cleared by the respondent. But as per Clause 6 of the agreement in such an event the remedy available for the appellant is only to recover the earnest money from the respondent with interest @ 10% per annum. Since the remedy is specifically provided for under the agreement, the appellant is not supposed to take up the burden upon him to clear of the dues pertaining to the schedule mentioned property and then insist upon the respondent to execute registered sale deed in his favour. 24. In this context, it would be necessary to refer to Ex.A-15 receipt, dated 18.09.2002 which according to the appellant is a crucial document under which the respondent authorized him to repay the debt of an amount of Rs.27,00,000/- to Union Bank of India, Tirupathi from out of the sale consideration and received the balance of sale consideration of Rs.4,03,000/- from him and put him in possession of the schedule mentioned property on the said date. But, according to the respondent, the said document is not a valid document and brought into existence by the appellant for the purpose of filing of the suit. 25. But, according to the respondent, the said document is not a valid document and brought into existence by the appellant for the purpose of filing of the suit. 25. A.S.M.P.NO.1142 of 2006: The learned counsel for the respondent contended that the non-judicial stamp paper on which Ex.A-15 was written was issued by the Deputy Director, District Treasury Office, Kadapa in November, 2002; whereas the same was drafted in September, 2002 which fact indicate that Ex.A-15 is undoubtedly a forged document. He seeks to adduce the certificate issued by the District Treasury Officer as additional evidence to substantiate the version of the respondent. The petition is opposed by the learned counsel appearing for the appellant on the ground that the certificate by the District Treasury Officer was issued on 16.12.1995, whereas the judgment of the trial Court was rendered on 29.04.2006, therefore, it is well within the knowledge of the respondent and he could have produced the same as evidence in the suit itself. Reliance is placed by the learned counsel for the respondent on STATE OF GUJARAT & ANOTHER v. MAHENDRA KUMAR PARSHOTTAMBHAI DESAI (DIED) BY L.Rs. wherein it was held that the additional evidence was insisted upon to be adduced to persuade the Court to accept the point of view urged which the evidence on record did not support and the High Court rightly rejected the applications filed by State for adducing additional evidence at the stage of appeal which was intended only to fill up lacunae in this case. 26. Under Order 41, Rule 27 CPC a party is permitted to adduce additional evidence only if he establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against him was passed. 27. In the instant case, as rightly pointed out by the learned counsel appearing for the appellant that the certificate was said to be issued by the District Treasury Office on 16.12.2005, whereas it was well within the knowledge of respondent that the date of execution mentioned in Ex.A-15 was not correct. Such being the situation, the respondent could have adduced the proposed additional evidence in the trial Court itself but failed to do so. Such being the situation, the respondent could have adduced the proposed additional evidence in the trial Court itself but failed to do so. There is no proper explanation from the respondent by which cause he was prevented from adducing the said evidence before the trial Court. As such, the respondent failed to establish that notwithstanding the exercise of due diligence, he could not be able to adduce the proposed additional evidence before the trial Court. Under these circumstances, the proposed additional evidence cannot be admitted in this appeal and the A.S.M.P.No.1142 of 2006 filed by the respondent to receive the certificates issued by the District Treasury Office as additional evidence is hereby dismissed. 28. It is the evidence of the appellant who was examined as PW-1 that PW-2 and one Chinna Raja mediated between him and the respondent to settle the dispute and the transaction covered by Ex.A-15, took place on 18.09.2002, PW-2 and other elder settled the matter and in view of the settlement, the respondent authorized the appellant to pay an amount of Rs.27,00,000/- to Union Bank of India towards debt due relating to the schedule mentioned property and agreed to receive the balance of sale consideration of Rs.4,03,000/- and accordingly she executed Ex.A-15 in favour of the appellant. His evidence also further disclosed that under Ex.A-15 the appellant was put in possession of the schedule mentioned property by the respondent and she also undertook to execute a registered sale deed in favour of the appellant within a period of 15 days. PW-2 supported the version of PW-1 and stated that he at the request of the respondent and her husband mediated the matter and it was settled as stated by the appellant (PW-1) and the possession of the schedule mentioned property was delivered to the appellant. He also spoke about the respondent receiving consideration of Rs.4,03,000/- on the said date under Ex.A-15 executed in favour of the appellant. 29. In the cross-examination PW-2 admitted that PW-1 is his friend and he filed civil suits basing on promissory notes against Balagangadhar Reddy who is the husband of the respondent and that the husband of the respondent has been contesting the said suits as defendant. 30. In the course of the trial before the Court below, at the instance of the respondent, Ex.A-15 receipt was sent to the Government Examiner of Questioned Documents who is the handwriting expert. 30. In the course of the trial before the Court below, at the instance of the respondent, Ex.A-15 receipt was sent to the Government Examiner of Questioned Documents who is the handwriting expert. He gave an opinion that Ex.A-15 is a forged document. He was also examined as DW-4 before the trial Court and he unequivocally stated in his deposition that Ex.A-15 is a forged document. The trial Court placed reliance on the evidence of handwriting expert and also disbelieved the evidence of PW-2 since he was not signatory to Ex.A-4 agreement and also in view of the fact that he filed suits basing on the promissory notes against the husband of the respondent (DW-2). Arriving at the said conclusion, the learned trial Court gave a finding that the possession of the schedule mentioned property was not delivered to the appellant by the respondent under Ex.A-15 as contended by the appellant, but he might have come into possession of the said property after obtaining ex parte injunction in I.A.No.3948 of 2002 against the respondent. 31. The learned counsel appearing for the appellant would contend that the evidence of handwriting expert is only opinion evidence and the trial Court committed a grave error totally placing reliance on the evidence of handwriting expert. 32. A reading of the judgment of the learned trial Court does not indicate that the learned trial Court solely rested its decision on the evidence of handwriting expert. The trial Court also by assigning sufficient reasons rejected the evidence of PW-2. The circumstances also do not indicate that the respondent might have executed Ex.A-15 receipt in favour of the appellant. By the date of Ex.A-15, disputes already arose between the parties and the respondent was insisting upon payment of entire balance of sale consideration and she was not willing to permit the respondent to repay the debts relating to the schedule mentioned property directly. Under these circumstances, it cannot be expected of the respondent to permit the appellant to repay the debts directly. Therefore, the finding of the learned trial Court that Ex.A-15 receipt is not a genuine document, does not call for any interference in this appeal and the same is confirmed. 33. Granting of the relief of specific performance is discretionary one and Section 20 of the Specific Relief Act lays down the principle governing the granting of relief of specific performance. 33. Granting of the relief of specific performance is discretionary one and Section 20 of the Specific Relief Act lays down the principle governing the granting of relief of specific performance. The jurisdiction of the Court to decree specific performance being discretionary and the Court is not bound to grant the relief of specific performance merely because it is lawful to do so. However, Section 20 of the Specific Relief Act lays down that the discretion of the Court is not arbitrary but sound and reasonable guided by judicial principles and capable of correction by a Court of appeal. The foremost among the requirements for granting or refusing specific performance is the conduct of the parties. 34. In the instant case, the version of the respondent is that at the time of Ex.A-4 agreement to sell, she disclosed to the appellant that there were dues and debts concerning the schedule mentioned property and after receiving balance of sale consideration, she would repay the dues. The said term was also incorporated in the agreement. Therefore, it is not open for the appellant to contend that he was taken by surprise on coming to know about the dues. His version is that some of the dues were not disclosed at the time of agreement to sell. Even if the appellant subsequently came to know about some more dues on the schedule mentioned property, the remedy open for him is to put the respondent on notice about the dues and pay the balance of sale consideration and demand the respondent to make the schedule mentioned property free from all encumbrances and execute the registered sale deed. The agreement does not authorize the appellant to pay the dues or encumbrances directly without paying balance of sale consideration to the respondent. From the conduct of the appellant, it can be understood that the appellant by pressing into service Ex.A-15 receipt, tried to have an unfair advantage over the respondent, which he is not supposed to do. Though admittedly, the appellant is in possession of the schedule mentioned property, his contention that he came into possession of the schedule mentioned property under Ex.A-15 receipt was found to be false by the trial Court on facts and evidence and is also affirmed by this Court. Though admittedly, the appellant is in possession of the schedule mentioned property, his contention that he came into possession of the schedule mentioned property under Ex.A-15 receipt was found to be false by the trial Court on facts and evidence and is also affirmed by this Court. For all these reasons, the appellant did not approach the Court with clean hands and therefore, he is not entitled for a decree of specific performance which is an equitable relief. His only remedy is to recover the earnest money with interest at 10% per annum as provided under Ex.A-4 agreement to sell. Thus, this point is answered against the appellant. 35. POINT NO.2: The party is not entitled to a relief of injunction as a matter of right. The grant of injunction is a discretionary remedy and while exercising jurisdiction in granting or refusing injunction, the Court has to take into account the conduct of the parties and the comparative mischief and inconvenience. The foremost among the considerations is to find out whether the party who approaches for a relief of injunction is honest and truthful in his representation. If the material averment on which the party bases his claim of injunction turns out to be false, the Court has to refuse the relief of injunction, which is equitable. In the instant case, it appears from the contention urged by the appellant that he is seeking protection under Section 53-A of Transfer of Property Act. The protection under the said provision is only available to him if he was already in possession of the property or was put in possession of the property under Ex.A-4 agreement to sell or he subsequently came into possession of the property under Ex.A-15 receipt as claimed by him. Admittedly, prior to the agreement the appellant was not in possession of the property and he also did not take possession of the property under the agreement. On facts and evidence, the learned trial Court found that Ex.A-15 is a brought up document and the respondent did not put the appellant in possession of the property under the said document. Therefore, the appellant is guilty of suppression of material facts and is not entitled to protect his possession by having recourse under Section 53-A of the Transfer of Property Act. As such, the appellant is not entitled for permanent injunction and this point is also answered against him. Therefore, the appellant is guilty of suppression of material facts and is not entitled to protect his possession by having recourse under Section 53-A of the Transfer of Property Act. As such, the appellant is not entitled for permanent injunction and this point is also answered against him. 36. POINT NO.3: Though as pointed out by the learned trial Court, the respondent did not specifically mention in Ex.A-4 agreement to sell about the mortgages of the schedule mentioned property to Union Bank of India and Mansi Financiers Limited, Chennai, perusal of Clause 4 of the agreement indicates that besides specifically mentioning about certain debts and dues, the respondent under clause 4 of the agreement undertook to clear of all the dues and encumbrances on the schedule mentioned property and make out a good and marketable title after receiving of sale consideration from the plaintiff. In this view of the matter, it cannot be said that the respondent is guilty of suppression of any dues or debts pertaining to the schedule mentioned property. As such, the cross-objections filed by the respondent deserve to be allowed and accordingly, the same are allowed. RESULT: For the foregoing reasons, the decree and judgment passed by the trial Court are confirmed. The appeal filed by the appellant is dismissed and the cross-objections filed by the respondent are allowed. Having regard to the facts and circumstances of the case, there shall be no order as to costs.