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Andhra High Court · body

2014 DIGILAW 483 (AP)

G. Venkataswamy v. Kurru Kondaiah

2014-03-27

C.V.NAGARJUNA REDDY

body2014
Judgment : 1. This Second Appeal arises out of the judgment and decree, 28.07.2008, in A.S.No.16 of 2007 on the file of the learned Senior Civil Judge, Markapur, whereby he has partly reversed the judgment and decree, dated 05.07.2007, in O.S.No.95 of 1999 on the file of the learned Junior Civil Judge, Markapur. 2. The appellant filed the above-noted suit against the respondent for a direction to execute the registered reconveyance sale deed in his favour after receiving the debt amount of Rs.57,600/-; for permanent injunction restraining the respondent and his men from interfering with his peaceful possession and enjoyment of the suit schedule property; and for payment of the suit costs. 3. The case of the appellant is that he borrowed an amount of Rs.40,000/- from the respondent on 09.06.1997 agreeing to repay the same with interest at the rate of 12% per annum; that on the same day, the appellant executed registered sale deed in favour of the respondent as security for due payment of the debt; and that the respondent also executed an agreement in favour of the appellant to reconvey the suit schedule property to the appellant, if the latter repays the debt amount with interest within 18 months from the date of the said agreement. The appellant pleaded that he was ready and willing to perform his part of the contract, but the respondent failed to receive the debt amount and execute the reconveyance deed, despite his issuing legal notice and sending mediators requesting the respondent to execute the reconveyance deed. Therefore, the appellant filed the suit. 4. The respondent filed a written statement, wherein he has admitted the fact of execution of registered sale deed by the appellant in his favour and also the agreement executed by him in favour of the appellant agreeing to reconvey the property if the debt amount is repaid within 18 months. He has, however, pleaded that though he was ready and willing to reconvey the property, the appellant was never ready to perform his part of contract; that the appellant failed to repay the debt amount within the stipulated time; and that as the time was essence of the contract and the appellant failed to repay the debt amount within the stipulated time, he has forfeited his right of reconveyance of the property. 5. 5. On behalf of the appellant, he has examined himself as P.W-1 and also adduced the evidence of P.Ws.2 to 4. He has filed Exs.A-1 to A-6. On behalf of the respondent, he has examined himself as D.W-1 and filed Ex.B-1. 6. Based on the respective pleadings of the parties, the trial Court framed the following issues: 1. Whether the plaintiff was ready and willing to perform his part of the contract? 2. Whether time is essence of the contract? 3. Whether the plaintiff breached the terms of the agreement dated 09.06.1997? 4. Whether the plaintiff is entitled for a decree for specific performance of agreement for reconveyance of the property as prayed for? 7. The trial Court has answered all the issues in favour of the appellant and against the respondent. It has granted decree for reconveyance of the suit schedule property to the appellant, besides granting permanent injunction restraining the respondent from interfering with the appellant’s possession and enjoyment of the suit schedule property. Feeling aggrieved by the said judgment and decree, the unsuccessful defendant filed A.S.No.16 of 2007. The learned Senior Civil Judge, Markapur by his judgment, dated 28.07.2008, partly allowed the appeal by setting aside the decree for reconveyance. He has, however, confirmed the decree for permanent injunction. Feeling aggrieved by the judgment of the lower appellate Court to the extent of reversing the judgment of the trial Court for reconveyance of the suit schedule property, the plaintiff filed this Second Appeal. 8. At the hearing, Sri K.Chidambaram, the learned counsel for the appellant, submitted that the lower appellate Court has committed a serious error of law in reversing the judgment of the trial Court with regard to reconveyance of the suit schedule property to the appellant. He has stated that the whole judgment of the lower appellate Court is based on certain minor discrepancies in the evidence of P.Ws.2 to 4 with regard to their approaching the respondent at the instance of the appellant and that in view of the fact that the appellant has sent Ex.A-4-legal notice before the expiry of the time limit for redemption and the respondent expressed his readiness and willingness to reconvey the suit schedule property, vide his reply telegram, dated 10.12.1985, the lower appellate Court ought not to have reversed the judgment of the trial Court. 9. 9. Sri M.Soloman Raju, the learned counsel representing Sri Nimmagadda Satyanarayana, the learned counsel for the respondent, submitted that the trial Court has committed an error in accepting the plea of the appellant that he was ready and willing to repay the debt amount, while his conduct has thoroughly proved that he was never ready and willing to repay the debt amount and that the lower appellate Court has very rightly disbelieved the version of the appellant and reversed the judgment of the trial Court. 10. I have carefully considered the respective submissions of the learned counsel for the parties. 11. The following facts are not in dispute: That the appellant has executed Ex.B-1-registered sale deed on 09.06.1997 in favour of the respondent as a security of the debt contracted by him from the respondent; that the respondent has executed Ex.A-1-agreement of sale, dated 09.06.1997, on the same day on which Ex.B-1 was executed, agreeing to reconvey the property, if the appellant repays the debt amount within 18 months from the date of the said agreement; that the appellant has not repaid the debt amount; and that, however, on the last date on which the period of 18 months was expiring, the appellant caused a legal notice (Ex.A-4), dated 09.12.1998, issued to the respondent, wherein while expressing his readiness and willingness to repay the debt amount, he requested the latter to execute the reconveyance deed. On the very next day itself, i.e., on 10.12.1998, the respondent has issued a reply telegram conveying his readiness and willingness to execute the reconveyance deed in favour of the appellant. 12. It is the pleaded case of the appellant that he has sent P.Ws.2 to 4 on different occasions to the respondent in order to persuade him to receive the debt amount and execute the reconveyance deed. The lower appellate Court has thoroughly discussed the evidence of P.Ws.2 to 4 and exposed the fallacy therein by pointing out the material contradictions in their evidence. As rightly pointed out by the lower appellate Court, in Ex.A-4-legal notice, dated 09.12.1998, the appellant has not referred to the fact that he has sent P.Ws.2 to 4 to the respondent in the first week of December, 1998. As rightly pointed out by the lower appellate Court, in Ex.A-4-legal notice, dated 09.12.1998, the appellant has not referred to the fact that he has sent P.Ws.2 to 4 to the respondent in the first week of December, 1998. If it is the version of the appellant that he has sent P.Ws.2 to 4 to the respondent before issuing the legal notice-Ex.A-4, he was expected to have stated the said fact therein. 13. On a careful consideration of the reasons given by the lower appellate Court, I have no reason to come to a different conclusion as was done by it that the appellant has failed to prove that he has sent P.Ws.2 to 4 to the respondent with a request to reconvey the property. 14. The appellant has stated in his evidence that he has opened an account in Andhra Bank, Markapur and credited a sum of Rs.55,000/-about four months prior to the filing of the suit, but no evidence has been placed before the Court in support of this plea. If the appellant was ready and willing to repay the debt amount by opening a bank account and depositing a sum of Rs.55,000/-, there can be no reason for him not to produce the evidence proving this fact. Further, the fact that despite the reply given by the respondent on the very next day of his receiving Ex.A-4-legal notice, the appellant has failed to make any further advances towards getting the reconveyance deed executed by approaching the respondent, till he filed the suit almost four months after exchange of the notices, speaks of the conduct of the appellant in not showing any interest in getting the reconveyance deed executed by the respondent by repaying the debt amount. If the appellant had bona fide intention to repay the debt amount, he was expected to have issued a notice immediately after 10.12.1998 by fixing a date for execution of reconveyance deed and for its registration. Nothing of this sort has been done by the appellant, which amply proves that he was not ready and willing to repay the debt amount to the respondent. 15. All these circumstances clearly justify the conclusion drawn by the lower appellate Court that the appellant was not ready and willing to repay the debt amount. 16. Nothing of this sort has been done by the appellant, which amply proves that he was not ready and willing to repay the debt amount to the respondent. 15. All these circumstances clearly justify the conclusion drawn by the lower appellate Court that the appellant was not ready and willing to repay the debt amount. 16. As regards the stipulation that time is essence of contract, no doubt, in a case of specific performance of agreement of sale of an immovable property, ordinarily, time is not essence of contract despite the stipulation to that effect in the agreement. However, in a case of execution of reconveyance deed, the said concept does not apply. 17. In Mehdi Hussain Khan Vs. Nusrat Hassan and another 2004(1) ALT 569 , while dealing with a similar issue, this Court has held that for reconveyance, time is essence of contract and once time limit is fixed, the same cannot be ignored altogether and further observed that in the said case, there was no material to show that the defendant waived the time limit by her conduct and therefore, the plea of the plaintiff that he tried to offer money during the stipulated time, but the defendant evaded to receive the same, was not believable in view of his evidence. 18. The lower appellate Court, in my opinion, is justified in reversing the judgment and decree of the trial Court to the extent of reconveyance of the suit schedule property. 19. For the above-mentioned reasons, I do not find any merit in the Second Appeal and the same is, accordingly, dismissed.