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2009 DIGILAW 376 (AP)

M. Rangaiah v. T. V. Satyanarayana

2009-06-17

L.NARASIMHA REDDY

body2009
JUDGMENT This appeal, under Section 96 of the Code of Civil Procedure, 1908 (for short 'the Code'), is filed against the judgment and decree, dated 05-03-2007, passed by the Court of X Additional Senior Civil Judge, (FTC), City Civil Court, Hyderabad, in O.S.No.1586 of 2005. 2. The 151 respondent (for short 'the respondent') filed the suit, against the appellant, for the relief of specific performance of an agreement of sale, dated 16-08-2005. He pleaded that he is the owner of a Flat in the ground floor of premises, bearing No.7-1-414/A/22, Sanjeevareddy Nagar, Hyderabad, that the appellant is the owner of Flat, bearing No.B6/F2(LlG), in the first floor, and that when the same was offered for sale, he agreed to purchase it for a consideration of RS.6,25,000/•. It was stated that advance of Rs.25,000/- was paid on 25-07-2005, and on 16-08-2005, an amount of Rs.3,00,000/- was paid. An agreement of sale was said to have been executed on the same day, incorporating several conditions. 3. The respondent alleged that though he had two months time from the date of agreement for payment of the balance of consideration and for completion of the transaction, he came to know that the appellant was making attempts to sell the property, and accordingly, filed the suit on 01-09-2005. The appellant filed a written statement, denying the very execution of the agreement of sale. He pleaded that he borrowed a sum of RS.3,25,000/- for his family necessities from the respondent by mortgaging his flat, and that taking advantage of the same, the respondent fabricated the agreement of sale. Several grounds, such as absence of notice, and non-compliance with statutory conditions, were pleaded. Through its judgment, dated 05-03-2007, the trial Court decreed the suit. Hence, this appeal. 4. Sri P. Shiv Kumar, learned counsel for the appellant, submits that the trial Court did not appreciate the evidence on record from the correct perspective and though it was proved beyond any pale of doubt that the agreement of sale, marked as Ex.A-1, was fabricated and forged, a different view was taken. He contends that the plaint did not accord with the requirements under the C.P.C., nor did it fulfil the conditions incorporated under Section 16(c) of the Specific Relief Act (for short 'the Act'). He contends that the plaint did not accord with the requirements under the C.P.C., nor did it fulfil the conditions incorporated under Section 16(c) of the Specific Relief Act (for short 'the Act'). Learned counsel further submits that the evidence adduced by the respondent, particularly, the deposition of P.W.3, is totally at variance with the contents of the plaint. He contends that the decree under appeal cannot be sustained either on facts, or in law. 5. Bokka Satyanarayana, learned counsel for the respondent, on the other hand, submits that the very fact that the appellant admitted the receipt of the amount from the respondent, discloses the genunity of transaction. According to him, the necessity to file the suit, within two weeks from the date of execution of EX.A-1 arose, on account of the steps initiated by the appellant and the notice got issued by his wife, which was marked as EX.A-4. 6. After taking into account the pleadings before it, the trial Court framed the following issues: 1. "Whether the agreement of sale dated 16-08-2005 is true, valid and binding on the 15t defendant? 2. Whether plaintiff is entitled for specific performance of the agreement of sale 16-08-2005? 3. Whether the plaintiff is entitled for possession of the suit property? 4. To what relief?" 7. The evidence adduced on behalf of the respondent comprised of his own deposition, as P.W.1; the evidence of his nephew, as P.W.2, and of Mr. Mohammed Waheeduddin, as P.W.3. EX.A-1 is the original agreement of sale; EX.A-2 is the property tax bill, dated 01-06-2005, and the corresponding receipt was marked as EX.A-3. Legal notice, dated 30-08-2005, said to have been issued by the wife of the appellant, was marked as Ex.A-4; and reply thereto, as EX.A-5. EX.A-6 is the postal acknowledgment. The appellant deposed as D.W.1 and his son, who was mentioned as one of the witnesses in Ex.A-1, deposed as D.W.2. To prove that EX.A-1 was tampered after the suit is filed, the appellant marked as Ex.B-1, a copy of agreement of sale, which was served upon him, along with the copy of the plaint. 8. In view of the submissions made by the learned counsel for the parties, two points arise for consideration, in this appeal, viz., (a) Whether the suit filed by the respondent accords with the prescribed procedure? and (b) Whether the respondent proved the execution of EX.A-1 ? 9. 8. In view of the submissions made by the learned counsel for the parties, two points arise for consideration, in this appeal, viz., (a) Whether the suit filed by the respondent accords with the prescribed procedure? and (b) Whether the respondent proved the execution of EX.A-1 ? 9. The Act provides for the remedy of specific performance under Chapter II thereof. Section 20 of the Act makes it amply clear that the relief of specific performance of obligation under an agreement of sale, is discretionary in nature. Having said that, it proceeds to stipulate the guidelines to be kept in view, while exercising the discretion, so vested in the Court. Apart from that, the law requires certain conditions to be complied with by a plaintiff in a suit of this nature, before he claims the relief of specific performance. For instance, he must express his readiness and willingness to perform his part of contract. Section 16(c) of the Act, makes this aspect very clear. 10. Though the Code is mostly procedural in nature, it has some attributes of substantive law. These aspects are mostly inbuilt in the procedure itself. The Code is divided into various parts. The first part comprises of Sections 1 to 158. The Schedule comprises of Orders l to Ll. In a way, the Orders provide for elaboration of the substantive provisions, contained in Sections 1 to 158. In addition to that, the Code prescribes the Forms to be used by the parties as well as the Courts, with reference to relevant provisions of law, under Appendices 'A' to 'H', each, denoted to subjects like, pleadings, process, discovery, inspection and admission, decrees, execution, appeals etc. 11. Forms 47 and 48 of Appendix A relate to suits for specific performance. In both the forms, two requirements are prescribed as essential: The first is, that the plaintiff must have demanded or requested the defendant to perform the contract in accordance with the agreement, and the second is that the plaintiff must state that he is ready and willing to perform his part of contract. The relevant clauses read as under: "Form No.47: 2. The plaintiff has applied to the defendant specifically to perform the agreement on his part, but the defendant has not done so. 3. The relevant clauses read as under: "Form No.47: 2. The plaintiff has applied to the defendant specifically to perform the agreement on his part, but the defendant has not done so. 3. The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice. Form No,48: 3. On the ..... day of ..... 19../20..., the plaintiff tendered. ... Rupees to the defendant, and demanded a transfer of the said property by a sufficient instrument. 4. The defendant has not executed any instrument of transfer. 5. The plaintiff is still ready and willing to pay the purchase-money of the said property to the defendant." 12. The difference between these two Forms is that, the first one applies to a suit, which is filed without waiting for the response of the defendant, whereas the other form is meant for cases where the defendant has expressed his refusal. 13. The requirements, mentioned above, are almost substantive in nature. The Legislature had made its intention very clear, to the effect that before a suit for specific performance of an agreement is filed, the plaintiff must issue notice to the defendant calling upon him to perform his part of contract. In the instant case, the respondent did not issue such a notice and straight away filed the suit. 14. The other requirement is, about the readiness and willingness on the part of the plaintiff to perform his part of contract. This is made mandatory not only in the Code, but also under Section 16(c) of the Act. What is essential is the readiness and willingness on the part of the plaintiff to perform his part of contract. This may include, not only payment of balance of consideration, but also compliance with the other conditions, that are stipulated under the agreement. The respondent no doubt mentioned in para 7 of the plaint, that he is ready and willing to pay the balance of consideration within the agreed period of time, That, however, does not constitute compliance with Section 16(c) of the Act, or Form No.47 of the Code. He did not say that he is willing to perform his part of contract. 15. In Baddam Pratap Reddy v. Channadi Jalapathi Reddy 2008 (5) ALT 192 , this Court held that compliance with the conditions mentioned in Form Nos. He did not say that he is willing to perform his part of contract. 15. In Baddam Pratap Reddy v. Channadi Jalapathi Reddy 2008 (5) ALT 192 , this Court held that compliance with the conditions mentioned in Form Nos. 47 and 48, as the case may be, of Appendix 'A' of the Code, is essential. Therefore, there is a clear non-compliance with the mandatory requirement, on the part of the respondent. 16. Assuming that there are no procedural lapses in the suit filed by the respondent, it needs to be seen, as to whether he proved EX.A-1. There are several suspicious circumstances, which the respondent was under obligation to explain. The first is that, in the copy of Ex.A-1, that was filed with the plaint and served upon the appellant, the signatures of only two witnesses namely M.Badrinath and M.Satyanarayana, were there. This copy was filed as EX.B-1. However, in the original, which is filed as EX.A-1 , the signature of a third witness, who was examined as P.W.3, is found. While the numbers 1 and 2 against the two witnesses, referred to above, were typed, number 3 was written against the name of P.w.3, with pen. Hardly any explanation was offered by the respondent for this I discrepancy, which is serious in nature. 17. It is always necessary that the witnesses to a document, if alive, are examined, to prove it. The two witnesses in EX.A-2 (sic. A-1) are the sons of the appellant herein. None of them were examined by the appellant. One of the witnesses deposed as D.W.2, and he flatly denied his signature on EX.A-1. The only witness, whose name is found in Ex.A-1, and was examined by the respondent, is P.W.3. It has been pointed out that his inclusion is not explained. He is said to be a Real Estate Broker and he is stated to have arranged the deal between the appellant and the respondent. If that were to be so, a clear mention about P.W.3 ought to have been made in the plaint itself. It has been pointed out that his inclusion is not explained. He is said to be a Real Estate Broker and he is stated to have arranged the deal between the appellant and the respondent. If that were to be so, a clear mention about P.W.3 ought to have been made in the plaint itself. The manner in which the transaction came to be settled, between the respondent and the appellant, was mentioned in para 3 of the plaint, as under: "In the last week of July 2005 the defendant NO.1 orally offered to sell the Suit Schedule Property for a total Sale Consideration of RS.6,25,000/- to the prospective purchasers and the plaintiff, being the absolute owner and possessor of the property situated quite beneath the Suit Schedule Property, accepted to purchase the same for the said sale consideration. Towards advance Sale Consideration the plaintiff paid a sum of Rs.25,000/- to the defendant NO.1 on 25-07-2005 and paid further sum of Rs.3,00,000/- to him towards further part sale consideration on 16-08-2005." 18. There is no mention to P .W.3, either I in this paragraph, or at any place in the plaint. 19. The requirement under Order VI of the Code, which is to the effect that the pleadings are required to be precise and they are not supposed to contain any evidence, can be read in favour of the respondent, and in a way, the failure to mention P.W.3 in the plaint, may not be treated as fatal. However, at least, during the course of his evidence as P.W.1, the respondent ought to have made a mention to the participation of P.W.3. His affidavit, in lieu of chief-examination, is silent, on this aspect. 20. In a way, it can be said that the facility created for filing of affidavits, in lieu of chief-examination, has taken away the importance and sheen of the very concept of evidence. The parties as well as the advocates are feeling satisfied by filing affidavits in lieu of chief-examination, just by reproducing the respective pleadings. In the process, they are not paying adequate attention to the fact that the evidence in support of the plea is to be supplemented during the trial, particularly by the parties to the suit. The parties as well as the advocates are feeling satisfied by filing affidavits in lieu of chief-examination, just by reproducing the respective pleadings. In the process, they are not paying adequate attention to the fact that the evidence in support of the plea is to be supplemented during the trial, particularly by the parties to the suit. If no mention is made to the other evidence by the plaintiffs, in their chief-examination, which is in the form of an affidavit, hardly there would any occasion for them, to refer to it in the cross-examination. In fact, the defendants would be too happy to permit the lapse to remain. 21. The case on hand presents an instance of that nature. Nowhere in the evidence of P.W.1, there is reference to P.W.3. The evidence of that witness sprung like a surprise, and there was absolutely no factual or legal basis for it. Unfortunately, the entire case of the respondent rested upon the evidence of P.W.3 and no effort was made to provide any connecting link. Once it is clear that his evidence does not have necessary foundation in the pleadings or the evidence of the respondent, it cannot constitute the basis. 22. The same is the case with Ex.A-4, a notice, said to have been received from the wife of the appellant. No factual foundation was laid for it, in the plaint, though it was mentioned as an important fact, constituting the cause of action. It needs to be noted that by making reference to EX.A-4, the respondent intended to justify the non-compliance with the condition No.2, in Forms 47 and 48 of Appendix 'A' of the Code. 23. There are several suspicious circumstances that surround EX.A-1. For instance, in pages 1 and 2, the signatures of appellant alone are present. In the second page, his signature is almost in the middle of the page and the typist had to make a strenuous effort to deviate from the ordinary pattern of typing the matter. 24. Description of the schedule commenced in page 2. Immediately after the heading, the four sides, indicating the boundaries were mentioned. This was followed by the description of the property once again with the boundaries on four sides. The word "vendor" occurs on the very signature of the appellant. It has already been pointed out that the name of P.W.3 did not find place in Ex. Immediately after the heading, the four sides, indicating the boundaries were mentioned. This was followed by the description of the property once again with the boundaries on four sides. The word "vendor" occurs on the very signature of the appellant. It has already been pointed out that the name of P.W.3 did not find place in Ex. B-1, which is copy of EX.A-1, served on the appellant. 25. The trial Court ought to have satisfied itself, that there existed a firm basis and foundation for the case presented by the respondent, before the suit was decreed. None of the aspects, pointed out above, were taken note of. Therefore, the decree passed by the trial Court cannot be sustained in law. 26. In this case, the appellant did not dispute the factum of receiving Rs.3,25,000/ from the respondent. Obviously, being overconfident about his succeeding in the suit for specific performance, the respondent did not make any prayer for refund of the amount. Even now, the relief can be granted to him. The appellant has also agreed to refund that amount. Though in the normal course the respondent must be required to pay the Court fee, this Court is of the view that he can be exempted from it, in view of the compromise like situation, which fits into the exercise under the Legal Services Authorities Act. Even where the parties pay Court fee, the Court fee would be refunded, if the matter is settled under that enactment. Therefore, the relief can be granted to the respondent without requiring him to pay the Court fee. 27. For the foregoing reasons, the decree passed by the trial Court for specific performance of an agreement is set aside, and in its place, a decree for refund of Rs.3,25,000/-(three lakhs twenty five thousand) by the appellant to the respondent with interest at 12% per annum from 151 of October 2005, is passed. 28. Accordingly, CCCA is allowed. There shall be no order as to costs.