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2022 DIGILAW 362 (TS)

S. Narsimha v. Geetla Vijaya Lakshmi

2022-06-08

P.SREE SUDHA

body2022
JUDGMENT : 1. Challenging the judgment and decree dated 07.08.2003 passed by the learned II Additional District Judge, Ranga Reddy (for short “trial court”) in O.S.No.161 of 2000, whereby and whereunder the trial court while dismissing the suit filed for specific performance of the agreement of sale was dismissed, ordered for refund of Rs.4,00,000/- paid by the appellant-plaintiff with interest thereon, the present appeal is preferred by the plaintiff. 2. The contention of the learned Counsel of appellant is that the trial Court erred in holding that the appellant failed to perform his part of contract and the time is the of essence of contract. He also stated that the letters written by the respondents on 21.7.2000 extending period of payment till 15.03.2000 were not filed before the court. In fact he never received those letters but they were brought into existence to suit stand of the respondents. The trial court believed the story of the respondents and held that the appellant is not ready and willing to perform his part of contract. In fact the payment of balance amount was subject to measurement of the land by the respondents. He need not show physically about cash balance as on that date. He also stated that in a suit for specific performance granting relief of specific performance is a rule and refusal is an exception, but the trial court without appreciating the facts and without assigning any reasons properly dismissed the suit and thus requested to allow the appeal by setting the impugned judgment. 3. Heard the arguments on both sides and perused the record and also the citations filed by both the Counsel. For the sake of convenience the parties hereinafter be referred as plaintiff and defendants as arrayed before the trial court. 4. The plaintiff stated that the defendants are the absolute owners and possessors of the open land bearing plot No.C/5, in Survey No.120, admeasuring 2632 Square Yards situated in Medipalli village, Ghatkesar Mandal of Ranga Reddy District. Out of the same the defendants sold 450 Square Yards to others and remaining land was offered to sell to the prospective purchasers. The plaintiff having come to know of the same expressed his willingness to purchase the land subject to measurement. The defendants also accepted to sell the same @ 400/- per Square Yard. Accordingly, an agreement of purchase was also entered on 23.09.1999. The plaintiff having come to know of the same expressed his willingness to purchase the land subject to measurement. The defendants also accepted to sell the same @ 400/- per Square Yard. Accordingly, an agreement of purchase was also entered on 23.09.1999. The plaintiff paid Rs.1,00,000/- towards advance sale consideration on the same day and paid further amount of Rs.3,00,000/-on 4.1.2000. The defendants agreed to get the land measured and to execute the registered sale deed by receiving the balance sale consideration. In spite of his several efforts the defendants failed to do so. On 04.05.2000 the General Power of Attorney (G.P.A) holder of the defendant No.1 came to Hyderabad and on his assurance he got prepared the draft sale deed and also ready with the balance sale consideration, but the General Power of Attorney holder, under the pretext of clarifying the boundaries, as they already sold some part of the land, went away without clarifying the same and he came to know that at present the available land is only 2580 Sq.Yards. The plaintiff got issued legal notice on 18.5.2000. The defendants gave reply notice on 29.05.2000 with false allegations and also returned Rs.4 Lakhs by way of demand drafts. The plaintiff gave reply on 08.06.2000 and returned the demand drafts to the defendants and also expressed his ready and willingness to pay the balance amount. The General Power of Attorney sent a letter on 25.06.2000 to the plaintiff’s counsel and returned the demand drafts. Again the plaintiff issued reply notice on 30.06.2000 and returned the demand drafts of Rs.2 Lakhs each. As the defendants failed to register the lands in his favour and as the plaintiff is ready with the balance sale consideration on 4.5.2000, he filed the suit for specific performance of contract. He also stated that the defendants filed suit for injunction in O.S.No.802/2000 and he filed copy of the same. He stated that as the defendants are trying to sell away the suit shcueldle lands to third parties he got the notice published in Eenadu on 14.7.2000 and on 21.7.2000. He requested the Court to direct the defendants to execute the registered sale deed in his favour after receiving the balance sale consideration, or, in alternative, the Court can execute the sale deed in his favour and deliver the phyiscal possession. 5. He requested the Court to direct the defendants to execute the registered sale deed in his favour after receiving the balance sale consideration, or, in alternative, the Court can execute the sale deed in his favour and deliver the phyiscal possession. 5. In the written statement filed by the defendant No.1 he admitted regarding the owenrship of the land in favour of defendants 1 to 3, be he stated that the extent of land is only 2580 Square Yards, but not 2632 Square Yards as stated by the plaintiff. He also disputed the date of agreement and stated that the agreement was entered on 30.08.1999 when payment of Rs.1 Lakh was made as token advance, but not on 23.09.1999. He further stated that the original agreement is not with them and it is in the custody of the plaintiff , but he has not filed the same to avoid payment of stamp duty. The agreement was not properly stamped, as such it is not admissible in evidence and without filing the same the suit itself is not maintainable. He also stated that only after measurement of the land the plaintiff mentioned as 2632 Yards i.e. about 52 Square Yards more than the actual land available and in fact it was also agreed in the agreement of sale that the entire sale consideration was to be paid on or before 10.01.2000. The defendants agreed to sell the land as they were in need of money for their urgent necessities, as such in Clause (2) of the agreement of sale it was specifically mentioned regarding payment as ‘on or before 10.01.2000’ and the agreement of sale was also executed at the instance of the plaintiff. He extracted the clause 13 of the agreement of sale as follows: “ If the purchaser fails to obtain the sale deed within time specified above, by paying the balance of the consideration, he shall have no claim whatsoever under this agreement” 6. The defendants further stated that as per Clause-13 of the agreement the suit itself is not maintainable. It is further stated that General Power of Attorney Holder of defendant No.1 addressed a letter on 27.01.2000 to the plaintiff to arrange funds and get the sale deed registered and he finally wrote another letter on 27.02.2000 by extending time till 15.03.2000, but the plaintiff failed to do so. It is further stated that General Power of Attorney Holder of defendant No.1 addressed a letter on 27.01.2000 to the plaintiff to arrange funds and get the sale deed registered and he finally wrote another letter on 27.02.2000 by extending time till 15.03.2000, but the plaintiff failed to do so. The defendants further stated that the plaintiff not only failed to pay amount within the stipulated time but also harassing them by publishing the paper notifications, as such they filed suit for injunction vide O.S.No.802/2000. They further stated that they are willing to return the demand drafts to the plaintiff and requested to dismiss the suit. 7. Before the trial Court, the plaintiff examined himself as PW1 and got marked Exs.A1 to 20 on his behalf. One Ch.Jogi Reddy, General Power of Attorney of defendant No.1, is examined as DW1. DW2 is the a private surveyor who measured the land and his wife is examined as DW3. Ex.B1 is the certificate dated.27.11.2022. 8. The trial court after considering the oral and documentary evidence on record, while dismissing the suit with regard to specific performance of contract, decreed for the suit for recovery of Rs.4,00,000/- with interest at the rate of 6% per annum till the date of realization. Aggrieved by the same, the appellant-plaintiff preferred the present appeal. 9. Heard both sides. 10. The plaintiff filed the suit against the defendants basing on the agreement of sale dated.23.09.1999, but PW1 has not filed the said agreement of sale. In his cross-examination he clearly admitted that the copy of the agreement of sale is available with him but he has not filed it in the court for the reasons best known to him. DW1 also stated that he has xerox copy of the agreement of sale, but he also not filed the copy of the same. As per the plaintiff the defendants executed agreement of sale on 23.09.1999, whereas the defendants stated that it was entered on 30.08.1999. The extent of the land agreed to be sold is 2682 Square Yards, and as per the plaintiff and it is subject to measurement, whereas the defendants stated they have already measured the land and the available land for sale is only 2580. There is no dispute regarding the sale of 450 Sq.Yards by the defendants to 3rd parties under Exs.A-18 to A-20 sale deeds. There is no dispute regarding the sale of 450 Sq.Yards by the defendants to 3rd parties under Exs.A-18 to A-20 sale deeds. DW1 stated that the land was measured two days prior to 30.8.1999 through DW2 and after sale of 450 Sq.yards the land available is 2580 Sq.Yards. The plaintiff stated that DW1 came to Hyderabad on 4.5.2000 and on his assurance he got prepared the draft sale deed. DW1 in the cross-examination stated that from 12.5.2000 to 23.5.2000 he was at Hyderabad and he did not met the plaintiff during the said period. The trial Court clearly observed that the plaintiff, who sought for specific performance, has to establish that there was valid sale agreement entered into by the defendants in his favour with respect to certain extent of lands and that he was always been ready and willing to perform his part to contract and within the time stipulated in the agreement or within the time extended between the parties to the agreement. Even as per the plaintiff the agreement was entered on 23.09.1999 and he paid Rs.4 Lakhs and is ready with the balance sale consideration subject to measurement of the land and he filed the suit for specific performance in the August, 2000. He has not issued any notice to the defendants requesting them to measure the land, but he filed the suit for an extent of 2632 Square Yards. In fact he also got prepared draft sale deed for the said extent under Ex.A3. The total total sale consideration was also calculated for the said extent @ 400/- per Sq.Yards. But the trial court observed that the plaintiff filed the suit for the entire extent of 2632 Sq.yards and calculated the sale consideration, as such he cannot raise issue against the defendants that the defendants failed to measure the land. 11. The plaintiff also agreed that the balance amount was to be paid on or before 10.01.2000. Now it is for the Court to see whether the time is essence of contract, or not? 12. The defendants stated that, as per Clause (13) of the terms of agreement of sale, the plaintiff failed to pay balance amount on or before the stipulated period as such he is not entitled for specific performance of contract. Now it is for the Court to see whether the time is essence of contract, or not? 12. The defendants stated that, as per Clause (13) of the terms of agreement of sale, the plaintiff failed to pay balance amount on or before the stipulated period as such he is not entitled for specific performance of contract. But DW1 in his evidence stated that he addressed letter to the plaintiff on 27.1.2000 asking him to arrange the amount on or before 15.2.2000 and to get the sale deed prepared. He also addressed another letter on 27.2.2000 by extending time till 15.3.2000. When DW1, as G.P.A holder, extended further time till 15.3.2000 it cannot be said that the time is the essence of contract. As per the terms of the terms of contract the plaintiff shall pay entire sale consideration on or before 10.1.2000, but it was subsequently extended for two times, as such the time is not essence of contract. The plaintiff further stated that he was ready and willing to perform his part of contract and he also filed his statement of account to show that on 12.8.2000 he deposited Rs.7,00,000/- in his account and the balance amount available was Rs.7,01,112/-. But, on 9.5.2000 the amount was to Rs.4,576/- by 22.06.2000. As on 04.05.2000 the balance amount available was Rs.4,01,506/-. The trial court observed that the plaintiff should demonstrate by showing the availability of the money from the beginning till the date of decree, however, he has not deposed in his evidence that he has got any other source of income to pay the balance of sale consideration in his bank account under Ex.,A4. Even according to the notice under Ex.A5 dated.18.5.2000 by 4.5.2000 he was ready with cash of Rs.4,00,000/- only. As the balance sale consideration amount payable was Rs.6,52,000/- but as on Ex.A5 legal notice dated 18.05.2000, the balance as per Ex.A4 statement of account of the appellant was Rs.1,491 only. The harmonious reading of Exs.A3, 4 and A5 prove that he has no capacity to proceed with sale transaction and as such the contends of Ex.A5 are utterly false. Further, the terms and conditions referred to therein are not to be seen from the plaint. The harmonious reading of Exs.A3, 4 and A5 prove that he has no capacity to proceed with sale transaction and as such the contends of Ex.A5 are utterly false. Further, the terms and conditions referred to therein are not to be seen from the plaint. Apart from the same, as Ex.A17 plaint in O.S.No.802 of 2000 on the file of Principal Junior Civil Judge, Ranga Reddy District, L.B.Nagar, the copy of the agreement of sale dated 23.09.1999 was served by the defendants in this suit on the plaintiff-appellant herein, but he did not produce either original or the Xerox copy of the same with an evil intention to burry the truth even though it is the basic suit document. As the plaintiff is seeking the relief of specific performance of agreement of sale he should prove that he has been ready and willing to perform his part of contract and that he has financial capacity to pay balance sale consideration. For the said proposition of law, the learned Counsel for the appellant relaying on a decision reported in (2008) 11 Supreme Court Cases-45, contended that the conduct of the defendant cannot be ignored while weighing the question of exercise of discretion for decreeing or denying a decree for specific performance. 13. In view of the amendments to the Specie Relief Act, the learned Counsel appearing for the appellant argued that the specific relief is specie of law. It is well settled that all procedural laws retrospective unless the legislature expressly states to the contrary. It has been held that the procedural laws in force must be applied at the date when the suit or proceedings comes on for trial or disposal. The court is bound to take notice of the change in the law and is bound to administer the law as it was when the suit came for hearing. The appeal is continuation of suit and if any changes in law, which has taken place between the date of decree and the decision of the appeal, has to be taken into consideration. The appeal is continuation of suit and if any changes in law, which has taken place between the date of decree and the decision of the appeal, has to be taken into consideration. A change of Law will become applicable on the date of the appellate decree, provided that no vested right is taken away thereby, subject to the provisions of Sub-section (2) of Section 11, Section 14 and 16 of the Specific Relief Act, and the relief of specific relief of specific performance of a contract, is no longer discretionary after the amendments. 14. The learned Counsel for the respondent submits that Section 16 (c) of the Specific Relief Act postulates continuous readiness and willingness on the part of the plaintiff. It is a condition precedent for obtaining a relief grant of specific performance of contract, though it is a discretionary jurisdiction, the court should consider whether the suit had been filed within reasonable time and. What would be a reasonable time would, however, depend upon the facts and circumstances of each case. 15. The learned Counsel appearing for the respondents-defendants relied on a decision reported in 2007 (5) ALT 510 (DB) in Mohammed Ibrahim and another Vs., Mohammed Abdul Razak, wherein, their Lordship held that: “ Merely because, there is a mention in the agreement making time as essence of contract, it does not mean that such time is made essence of contract. The court has to decide the the the same while taking into consideration of intention of parties in making such stipulation, their conduct and surrounding circumstances. 16. The learned Counsel for the respondents-defendants further submitted that, when the burden is on the agreement holder he should in the first instance plead and prove that the he would perform or has always been ready and willing to perform his part of contract, the burden never shifts on the Vendor. 17. The learned Counsel for the respondents further submitted that it is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleadings and that all necessary and material facts should be pleaded by the party in support of the case set up by it. 18. It is also equally settled that no party should be permitted to travel beyond its pleadings and that all necessary and material facts should be pleaded by the party in support of the case set up by it. 18. In the case on hand, it is for the court to see whether the time is essence of contract. It is admitted by the plaintiff that as per the terms of agreement the amount was to be paid on or before 10.1.2000. He disputed the letter sent by DW1 extending time till 15.3.2000, however, the DW1 himself admitted that he extended time for two times and addressed letters to the plaintiff. When once the defendants themselves deviated from the terms of contract and extended time it cannot be said that time is essence of contract. 19. But, now it is for the court to see whether the plaintiff was ready to perform his part of contract. Even in the plaint the plaintiff stated that he paid Rs.1,00,000/- on 23.09.1999 and Rs.3,00,000/- on 04.01.2000 and he was ready with balance sale consideration by 4.5.2000, which clearly shows that he was not ready to pay the balance amount on the date extended by the defendants till 15.3.2000. The defendants clearly sated that they intended to sell the property for their urgent finical requirements and also put a condition in the agreement of sale that the amount to be paid on or before 10.1.2000. Even then the defendants extended time twice till 15.3.2000. Even as on that date also the plaintiff was not ready and willing to perform his part of contract and he has no financial capacity to pay balance consideration, as such, the trial court rightly considered the surrounding circumstances and held that the plaintiff is not entitled for specific performance and ordered for refund of the amount. There was much correspondence between the parties. The plaintiff issued legal notice on 18.5.2000 in which he stated that he paid Rs.1,00,000/- on 23.9.1999 and Rs.3,00,000/- on 4.1.2000 and he got the sale deed prepared on the instructions of DW1 and he took away the original agreement of sale and also on the pretext of clarifying the boundaries he went away, as such he could not pay the balance amount. In their reply notice the defendants stated that on 30.08.1999 Rs.1,00,000/- was paid and agreement was also entered on the same day and he denied about his visit to Hyderabad and also preparing of draft sale deeds at his instance on 04.05.2000. Regarding extension of time through two letter it was extended till 15.3.2000, but still the plaintiff failed to pay the balance amount. As the defendants were in urgent financial necessities they intended to sell the property, but as the plaintiff failed to pay the amount within the stipulated time, returned Rs.4,00,000/- to the plaintiff. In the notice given by the plaintiff dated. 08.06.2000 he alleged that the defendants failed to get the land measured and there are boundary issues and he has not received any letters from the defendants dt.27.01.2000 and 15.03.2000 and the defendants are trying to avoid contractual obligation. DW1 in the letter dated.25.06.2000 stated that he cancelled the agreement and questioned the plaintiff about his authority in asking for measurement of the land and returned the demand drafts. The plaintiff addressed another letter dated.30.06.2000 and sent back the demand drafts to the defendants. During the pendency of the proceedings, the father of Defendant No.1, who is a prior sale agreement holder with possession-cum-GPA holder bearing Registered Document No.5916 of 1998 expired in the year 2006. As per Exs.A18 to A-20 sale deeds executed by the defendants in favour of third parties the sale consideration is shown as Rs.22,500/-. The plaintiff stated that he entered agreement with the defendants and also paid token advance of Rs.1 Lakh on the same day and later he paid Rs.3,00,000/-, and as the defendants failed to measure the land he could not pay the balance and he further stated that at the instance of G.P.A holder of defendant No.1 he got prepared draft sale deeds on 04.05.2000 and was also ready to willing to perform his part of contract. Initially, in the agreement the time for payment of balance sale consideration was on or before 10.1.2000, but later it was extended till 15.03.2000. Even by that time also the plaintiff has no financial capacity to pay the amount, he was not ready to willing to perform his part of contract. Initially, in the agreement the time for payment of balance sale consideration was on or before 10.1.2000, but later it was extended till 15.03.2000. Even by that time also the plaintiff has no financial capacity to pay the amount, he was not ready to willing to perform his part of contract. He has not stated that he has any other source of income and he admitted that he does not have any documentary proof to show that he has means to pay the balance sale consideration. Further, the said Ch.Jogi Reddy, who is the prior sale agreement holder with possession and GPA holder, admittedly for part of the plaint schedule property to an extent of 726 square yards as per registered Document No.5916 of 1998 is not impleaded. In the absence of his personal impleadment and seeking the prayer of cancellation of the above sale agreement in favour of Ch.Jogi Reddy it is impossible to grant a decree for specific performance as the plaintiff is well aware of the prior agreement of sale in favour of said Jogi Reddy, he was deliberately not shown even in the appeal and during the pendency of the appeal he appears to have died. 20. Further, in Ex.A4 bank statement the plaintiff was not having sufficient funds to pay the balance amount, as such the trial court observed that the plaintiff is not intended to perform his part of contract. As the plaintiff paid Rs.4,00,000/- to the defendants, the trial court directed the defendants to refund the amount with interest 6% per annum till realization. It was also admitted by the plaintiff that there is no clause in the agreement regarding the interest. However, considering the fact that the plaintiff is entitled to the refund of the amount the trial court felt it just and necessary to grant reasonable interest as per Section 34 of the Civil Procedure Code. The learned Counsel for the appellant mainly contended that in view of the amendment to the Specific Relief Act to grant specific performance of contract is a rule and refusal is an exception. But, yet it cannot be granted when plaintiff fails to prove that he has been ready and willing to perform his part of contract and it can be is a rule and refusal is an exception. But, yet it cannot be granted when plaintiff fails to prove that he has been ready and willing to perform his part of contract and it can be is a rule and refusal is an exception. But, specific performance can be granted only when the contract is proved and when the plaintiff proves his readiness and willingness to perform his part of contract, then only the relief of specific performance can be granted. But, in the present case as per Exs.A3, A4 and A5 documents, the plaintiff has no capacity and the plaintiff has suppressed the sale agreement wantonly though the same was available with him. The trial court after considering the entire evidence on record rightly refused relief of specific performance and granted refund of amount and the appeal is devoid of any merit and is liable to be dismissed. 21. Further, the application filed by the petitioners-appellants in I.A.No.1 of 2018 seeking to receive the certified copies of the sale deeds by way of additional evidence destroys the case of the plaintiff-appellant for the reason that there is variation in the terms and conditions of contract; the plaintiff accepted substituted performance from third parties to appeal for part of plaint schedule property to the extent of 1002 square yards at the rate of Rs.7,000/- per square yard by virtue of the above two registered sale deeds of the year 2013 without obtaining permission from this Court and that too during the subsistence of the injunction order passed in C.M.P.No.20344 of 2003. Besides the above, no amendment is sought with regard to the documents proposed to be let in and also to substantiate the recitals therein. It is the settled proposition of law that no evidence can be let in without the support of pleadings and any document which is sought to be relied upon should be supported by the pleadings. Moreover, in the counter it is stated that in violation of the orders passed in the above CMP, the plaintiff claims to have obtained the above two sale deeds from the third parties, who are not there on record, and as such this petition is liable to be dismissed inlimini and it is accordingly dismissed. Moreover, in the counter it is stated that in violation of the orders passed in the above CMP, the plaintiff claims to have obtained the above two sale deeds from the third parties, who are not there on record, and as such this petition is liable to be dismissed inlimini and it is accordingly dismissed. Further, despite consideration of the above two sale deeds, there cannot be any improvement in the case of the appellants herein and no opportunity was given to the third parties regarding the genuineness or otherwise of the documents as they are admittedly not impleaded in this appeal. Moreover, in the above two sale deeds, the sale consideration is varied to Rs.7,000/- per square yard, which is contrary to the basic agreement. 22. Accordingly, this appeal is dismissed with costs, confirming the judgment of the trial court passed in O.S.No.161 of 2000 dated.7.8.2003. 23. As a sequel thereto, miscellaneous petitions, if any, pending shall stand dismissed in the light of this final order.