Research › Search › Judgment

Telangana High Court · body

2022 DIGILAW 231 (TS)

T. Satyavathi v. Vijayendra Jain

2022-03-16

A.VENKATESHWARA REDDY

body2022
ORDER : 1. This Civil Revision Petition is filed under Article 227 of the Constitution of India, aggrieved by the order dated 26.08.2021 in IA No.220 of 2019 in OS No.267 of 2016 on the file of the learned VIII Additional District Judge, Ranga Reddy at L.B. Nagar. 2. This application in IA No.220 of 2019 was filed by the plaintiff under Order-XII, Rule-6 read with Section 151 of the Civil Procedure Code, 1908 (for short ‘CPC’) to decree the suit in favour of the plaintiff directing the first defendant to refund the part sale consideration of Rs.50 lakhs. 3. For the sake of convenience, the parties are hereinafter referred to as plaintiff and defendants as arrayed in the original suit. 4. Heard the learned counsel on both sides. Detailed submissions have been made on both sides which are more or less on pleaded lines. Therefore, it may not be necessary to refer such submissions in detail. However, they are received due consideration of the Court. Perused the material available on record. 5. The plaintiff has filed the original suit for specific performance of agreement of sale deed dated 02.11.2013 stating that the first defendant has entered into the said agreement to sell the suit schedule property and the plaintiff has paid an amount of Rs.50 lakhs towards part sale consideration. The first defendant has agreed to clear the loan borrowed from the second defendant-bank with the said amount and to get the mortgage released in respect of the suit schedule property. But, the first defendant failed to do the same and she has not taken any steps for release of mortgage with the second defendant. The plaintiff has also got issued legal notice to the first defendant and she replied to do so. In the meanwhile, the bank has taken steps for realization of the amount against the first defendant and Writ Petitions were also filed, vide WP Nos.19120 and No.27315 of 2016. Auction was held in respect of the suit schedule property. The plaintiff has purchased the suit property by participating in the auction and paid the entire amount of Rs.82,21,810/- and the property was delivered in favour of the plaintiff as an auction purchaser. Thus, the prayer of the plaintiff for specific performance of agreement of sale dated 02.11.2013 does not survive and that he is entitled for the refund of advance amount of Rs.50 lakhs. 6. Thus, the prayer of the plaintiff for specific performance of agreement of sale dated 02.11.2013 does not survive and that he is entitled for the refund of advance amount of Rs.50 lakhs. 6. (i) The first defendant has filed detailed counter admitting the execution of agreement of sale dated 02.11.2013 and receipt of sale consideration of Rs.50 lakhs. However, it is contended that as the suit property was mortgaged in the bank and it was reluctant to receive the loan amount against the outstanding balance, she could not get the property released from the bank and the same was informed to the plaintiff through her reply notice dated 08.08.2014. The plaintiff has participated in the auction, purchased the suit schedule property and as per the directions of this Court, the plaintiff has to pay Rs.24,12,740/- to the bank to obtain the possession and title of the suit schedule property. The plaintiff has also approached the Debt Recovery Tribunal, Hyderabad and filed Securitization Appeal No.169 of 2016. (ii) It is further contended by the first defendant that the plaintiff has to pay the balance sale consideration and there is no express clause to return the part sale consideration in the agreement dated 02.11.2013. In fact, as per the said agreement, the plaintiff has to pay Rs.30 lakhs within 25 days from the date of agreement and remaining balance of Rs.35 lakhs within 40 days from the date of receipt of title deed, which was not attended or complied by the plaintiff, thereby as per clause-12 of the agreement, the first defendant is also entitled for interest on the total payment for the delayed period. Thus, the plaintiff is not entitled for the refund of balance sale consideration without adhering to the terms of the agreement of sale dated 02.11.2013. 7. Thus, the plaintiff is not entitled for the refund of balance sale consideration without adhering to the terms of the agreement of sale dated 02.11.2013. 7. The learned counsel for the defendants seeks to submit that as per the terms of agreement of sale, though it is admitted by the first defendant that the plaintiff has paid advance amount of Rs.50 lakhs, he has failed to pay the balance amount of Rs.30 lakhs within 25 days from 02.11.2013 and Rs.35 lakhs within 40 days from the date of receipt of title deed and that there is no express clause in the agreement for the refund of part sale consideration and that it is not an admission on the part of the first defendant in her written statement, as required under Order-XII, Rule-6 CPC and relied on the principles laid by the Hon’ble Supreme Court : (i) Uttam Singh Dugga & Co. Ltd. v. United Bank of India and others, (2000) 7 SCC 120 ; (ii) Raveesh Chand Jain v. Raj Rani Jain, (2015) 8 SCC 428 ; (iii) Himani Alloys Limited v. Tata Steel Limited, (2011) 15 SCC 273 ; and (iv) Hari Steel and General Industries Limited and another v. Daljit Singh and others, (2019) 20 SCC 425 . 8. I have given my thoughtful consideration to the principles laid in the above decisions. 9. This application is filed by the plaintiff under Order-XII, Rule-6 r/w Sec.151 CPC to decree the suit based on the suit agreement of sale dated 02.11.2013. Admittedly, the plaintiff has paid the advance amount of Rs.50 lakhs on that day. It is the case of the first defendant that the plaintiff has to pay the remaining amount in two spells i.e., Rs.30 lakhs within 25 days from the date of agreement of sale and the balance amount of Rs.35 lakhs within 40 days from the date of receipt of title deed. It is also an admitted fact that the first defendant has not repaid the mortgage loan immediately on receipt of Rs.50 lakhs from the plaintiff. But, she has been insisting that the plaintiff has failed to pay the remaining sale consideration in two spells as indicated above. 10. It is also an admitted fact that the first defendant has not repaid the mortgage loan immediately on receipt of Rs.50 lakhs from the plaintiff. But, she has been insisting that the plaintiff has failed to pay the remaining sale consideration in two spells as indicated above. 10. In the meanwhile, the bank has initiated proceedings under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘SARFAESI Act’) and conducted auction and the plaintiff has participated in the auction, purchased the above property. He has paid the entire amount, obtained registered sale deed and thereafter filed the present application to decree the suit for refund of the advance amount of Rs.50 lakhs. 11. The contention of the first defendant is that there is no clause in the agreement of sale dated 02.11.2013 for refund of the said amount. On the other hand, the plaintiff has failed to pay the remaining amount as per the terms of the agreement of sale and that the admission of first defendant about agreement of sale dated 02.11.2013 in her statement is not a plain admission. Thus whether the plaintiff is entitled for refund of advance amount of Rs.50 lakhs from the first defendant or not is a point to be decided/determined after full length trial and merely on the basis of averments made in the written statement, court cannot treat the admissions of first defendant in isolation and that the provisions of Order-XII Rule-6 of CPC are not applicable to the facts of the present case. 12. In Himani Alloys Limited’s case (3rd supra), the Hon’ble Supreme Court while dealing with the nature and scope of admissions under Order XII Rule 6 of C.P.C., held that it is an enabling provision, it is neither mandatory nor peremptory, but discretionary. The Court, on examination of the facts and circumstances, has to exercise its judicial discretion keeping in mind that the judgment on admissions is a judgment without trial which permanently denies any remedy to the defendant and therefore, unless the admission is clear, unambiguous and unconditional, such discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. 13. 13. In Hari Steel and General Industries Limited’s case (4th supra) the Hon’ble Supreme Court again dealing with the scope of Order XII Rule 6 C.P.C. in a suit for specific performance of contract, held that mere admission of entering into an agreement cannot be termed as categorical and unconditional admission for delivering a judgment on such admissions and when trial had already commenced, considering the serious factual disputes and defence of the defendant in the suit, it is not permissible for making roving inquiry for disposal of the application. 14. Reverting to the facts of the present case, in view of chequered litigation between the parties and the plaintiff participating in the auction, becoming a successful bidder and also depositing some more money as per the directions of this Court in the writ petition and obtaining the sale deed from the bank, it cannot be said that the admission made by the first defendant in her written statement is a plain admission, which is sufficient for passing a decree under Order-XII Rule-6 CPC. 15. When the facts of the present case are tested on the touch stone of the principles laid by the Hon’ble Supreme court in the above decisions relied by the learned counsel for the defendants, the answer is in the negative. The present suit cannot be decided at this stage under Order-XII Rule-6 CPC, on the basis of the pleadings/admissions of the defendant No.1 in her written statement, as the said admission of the first defendant is not clear, unambiguous and unconditional. 16. In such facts and circumstances of the case, exercising the discretion by the Court under Order-XII Rule-6 CPC may amount denying the valuable right of first defendant to contest the suit, as the first defendant has been claiming that the plaintiff has failed to pay the balance amount as per the terms of agreement of sale, there is no clause in the agreement of sale for refund of the money paid by the plaintiff. In that view of the matter, in view of the principles laid by the Hon’ble Supreme Court in Himani Alloys Limited and Hari Steel (3rd & 4th supra) and other cases, since there is no such categorical, unambiguous and unconditional admission for delivery of judgment under Order-XII Rule-6 of CPC against the defendant No.1, I find that the Court below has committed a jurisdictional error in allowing the said application in view of serious factual disputes and the defence set up by the first defendant. 17. In the result, the Civil Revision Petition is allowed. The order impugned dated 26.08.2021 is hereby set aside. The Court below shall frame the issues considering the pleadings and proceed in accordance with law for disposal of the original suit. However, in the circumstances of the case, there shall be no order as to costs. As a sequel, interlocutory applications, if any pending, shall stand closed.