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2022 DIGILAW 784 (AP)

Lakka Thirupathaiah v. Vallabheneni Suraj Kumar

2022-08-23

B.S.BHANUMATHI

body2022
JUDGMENT B.S. Bhanumathi, J. - This appeal is preferred against the decree and judgment, dated 08.11.2011, passed in O.S. No. 82 of 2009 on the file of the Court of Senior Civil Judge, Nandigama. 2. The pleading of the parties, are briefly stated hereunder: 2(a) The case of the plaintiff, in brief, is that the defendant is the absolute owner of the land of Ac. 1.05 cents out of Ac. 1.78 cents in R.S. No. 335/1 and Ac. 1.00 out of Ac. 4.53 cents in R.S. No. 264, a total extent of Ac. 2.05 cents comprised in a single plot of Bhimavaram village, Vatsavai Mandal, Krishna District. The defendant sold away the plaint schedule property to the plaintiff for a sum of Rs. 6,15,000/- at the rate of Rs. 3,00,000/- per acre under an agreement of sale, dated 27.09.2006, executed by the defendant in favour of the plaintiff and the plaintiff paid Rs. 80,000/- as advance under the said agreement on the date of sale with right of passage on southern side bund of Shaik Abdul Saheb from West to East to the tractors, D.B. Carts, ploughs etc to ingress and egress to the plaint schedule land. As per the terms and conditions of the said sale agreement, the defendant has to hand over his original sale deed, pattadar passbook and title deed book, adangals for 13 years and all link documents in original to the plaintiff within ten days from the date of the said agreement. The defendant further agreed as per the terms of agreement to get the plaint schedule land measured as per F.M.B. with his expenses and ascertain the actual extent of land for which the consideration is payable at the rate of Rs. 3,00,000/- per acre after deducting the advance amount of Rs. 80,000/- paid by the plaintiff on the date of agreement and the defendant further agreed to clear the mortgage in the bank and deliver the payment receipt to the plaintiff and effect release of said mortgage in concerned Sub-Registrar's office and also get the entries in the pattadar pass book and title deed book cancelled at his expenses and the balance sale consideration of Rs. 5,35,000/- is payable to the defendant by the plaintiff within one month from the date of delivery of aforementioned documents to the plaintiff and measurement of land and discharge of mortgage on which the defendant has to register the regular sale deed in favour of the plaintiff or his nominee at his expenses. The plaintiff is always ready and willing to perform his part of contract by payment of balance sale consideration and ready to get the registered sale deed in his name. The plaintiff demanded several times by approaching the defendant and expressed his readiness and willingness to perform his part of the contract, but the defendant is postponing the same on one pretext or the other by giving evasive replies. The plaintiff got issued a notice, dated 19.12.2006 to the defendant and he received the same and kept quite. Again, the plaintiff got issued a notice, dated 01.09.2008, however, the defendant wantonly returned the same. Hence, the suit is filed seeking specific performance of contract and alternatively for refund of the advance amount of Rs. 80,000/- paid to the defendant with interest @ 24% per annum from the date of payment till realization. 2(b) The defendant filed written statement denying the plaint averments and contending that the plaintiff who is resident of Vijayawada, came to Bhimavaram village and purchased the land belonging to one Uddandu Saheb situated at the Western side of the plaint schedule property for construction of factory. The plaintiff and his clerk made several attempts for purchase of the plaint schedule property as it is very essential for them for construction of the factory. On the basis of a false complaint given by the plaintiff, a case in Crime No. 74 of 2008 was registered on 10.10.2008. Under the guise of the said complaint, the plaintiff got harassed the defendant to sell the plaint schedule land. While the things stood thus, all of a sudden, during the midnight of 28.12.2008, the plaintiff and his clerk, forcibly took away the defendant to Gudiwada and kept in a Guest House for one week and beat him indiscriminately and obtained his signatures on blank stamp papers. Thereafter, the plaintiff released the defendant. While so, the defendant received suit summons. While the things stood thus, all of a sudden, during the midnight of 28.12.2008, the plaintiff and his clerk, forcibly took away the defendant to Gudiwada and kept in a Guest House for one week and beat him indiscriminately and obtained his signatures on blank stamp papers. Thereafter, the plaintiff released the defendant. While so, the defendant received suit summons. The defendant never entered into sale transaction with the plaintiff at any point of time and the plaintiff created the same only with a view to grab the plaint schedule property. In fact, the defendant is not the absolute owner of the plaint schedule property and it is a joint family property and the plaintiff is not having any salable interest over the same. A suit in O.S. No. 54 of 2008 on the file of the Court of Junior Civil Judge, Jaggayyapet, is pending in relation to the plaint schedule property. The defendant never received any advance amount from the plaintiff and he has never executed any sale agreement regarding the plaint schedule property. The suit agreement is created, fabricated and the same is not at all enforceable against the defendant. The plaintiff could not explain why he kept quiet for all these years even though there is a recital in the plaint that the contract will be completed within ten days from the date of the agreement. This fact itself shows that the suit agreement is created. There is no sale transaction between the plaintiff and the defendant and the plaintiff created these documents to grab the plaint schedule property. Hence, the suit is liable to be dismissed. 3. On the basis of the above pleadings, the following issues were settled for trial at the first instance: 1. Whether the plaintiff entered into an agreement of sale with the defendant on 27.09.2006 to purchase the plaint schedule property and paid Rs. 80,000/- towards earnest money? 2. Whether the plaintiff is ready and willing to fulfill the terms and conditions of agreement of sale? 3. Whether the plaintiff and his men took away the defendant on the midnight of 28.12.2008 to Gudivada and forcibly obtained his signatures on blank stamp papers, white papers and promotes? 4. Whether the plaint schedule property is joint family property of the defendant and his brothers? 5. 3. Whether the plaintiff and his men took away the defendant on the midnight of 28.12.2008 to Gudivada and forcibly obtained his signatures on blank stamp papers, white papers and promotes? 4. Whether the plaint schedule property is joint family property of the defendant and his brothers? 5. Whether the plaintiff is entitled to seek relief of specific performance of agreement of sale or for refund of earnest money as prayed for? 6. To what relief the plaintiff is entitled to? 3(b). Thereafter, as there is no rejoinder filed by the plaintiff after filing of the written statement, the trial Court reframed the issues as follows: 1. Whether the agreement of sale, dated 27.09.2006 is true, valid and binding on the defendant? 2. Whether the plaintiff is ready and willing to perform his part of contract? 3. Whether the plaintiff is entitled for the relief of specific performance of agreement of sale or in the alternative the refund of earnest money with interest at the rate of 24% per annum from the date of suit as prayed for? 4. To what relief? 3(c). The plaintiff himself examined as PW1 besides examining PWs 2 to 4 and exhibits A1 to A5 were got marked. The defendant himself was examined as DW1 and got examined two more witnesses as DWs 2 and 3. Exhibits B1 to B4 were marked. 4. On a consideration of the entire evidence and on hearing the counsel for the parties, the trial Court decreed the suit with costs and directed the defendant to execute regular sale deed in favour of the plaintiff in respect of the suit schedule property after receipt of balance sale consideration of Rs. 5,35,000/- within two months from the date of the judgment. The trial Court further directed that in case of failure, the plaintiff is at liberty to get the registered sale deed under due process of law. 5. Aggrieved thereby, defendant preferred this appeal. 5,35,000/- within two months from the date of the judgment. The trial Court further directed that in case of failure, the plaintiff is at liberty to get the registered sale deed under due process of law. 5. Aggrieved thereby, defendant preferred this appeal. The grounds urged in the grounds of appeal are:- The trial Court ought not to have decreed the suit, as plaintiff could not establish that he was ready and willing to perform his part of contract; the trial Court ought to have directed the defendant to return the part of sale consideration instead of decreeing the suit as it is the specific plea of the defendant that the plaintiff obtained his signature on blank stamp paper by committing extortion and kidnap as the plaintiff intended to acquire the plaint schedule land as it is situated adjacent to his own land for the purpose of establishing industry and there is no interest for the plaintiff to sell the property. 6. Heard Sri P. Nagendra Reddy, learned counsel for the appellant/defendant and Smt. Nimmagadda Revathi, learned counsel for the respondent/plaintiff. The parties shall hereinafter be referred to as the plaintiff and the defendant. 7. It is the clear case of the plaintiff that the defendant failed to stick to the agreement of sale, whereas it is the defendant's case that the agreement is fabricated and he was put to coercion and some documents were obtained with his signatures on blank sheets. The agreement is of the year 2006, whereas the alleged high-handed taking of the defendant and putting him under restriction is reportedly in the year 2008. Though the defendant denied receipt of notice under exhibit A2 which was issued on 14.12.2006, the postal acknowledgment under exhibit A3 must be taken as proof of showing service of notice on the defendant in the absence of evidence to indicate that it is a created document. Since legal notice was issued way back in December 2006 itself, it cannot be presumed that agreement of sale, dated 27.09.2006, was created in the year 2008. The defendant, in his pleadings in the written statement, tactfully stated as if the agreement was fabricated by use of document obtained in the year 2008. Since legal notice was issued way back in December 2006 itself, it cannot be presumed that agreement of sale, dated 27.09.2006, was created in the year 2008. The defendant, in his pleadings in the written statement, tactfully stated as if the agreement was fabricated by use of document obtained in the year 2008. A careful reading of the written statement shows that there is no specific reference that the document obtained in the year 2008 was used for the purpose of creating an agreement of sale with a back date. However, he denied execution of the agreement of sale on 27.09.2006. The evidence of PWs 2 & 3 clearly proves execution of the agreement of sale by the defendant. The trial Court has also rightly appreciated their evidence. Similarly, the evidence of the scribe, examined as PW4, was rightly rejected by the trial Court in view of his admission in the cross-examination that he merely signed as a scribe but it was prepared at the instruction of others. 8. In a suit for specific performance, merely because the plaintiff succeeded in establishing execution of the agreement of sale, the relief of specific performance will not be automatically granted. The plaintiff has to establish readiness and willingness throughout not just till the date of filing of the suit but even subsequent thereto. 9. Learned counsel for the appellant relied on the decision of this High Court in A. Yellappa Sastri v. Gunda Shakara Lingam (died) per LRs 2010 (3) ALT 735 (S.B), wherein it was held that under Section 20 of the Specific Relief Act, 1963, the relief of specific performance is a discretionary relief and the Court is not bound to grant the same even if it is legally to do so and having regard to the facts and circumstances of each case, the entitlement of the plaintiff to such relief is to be examined. He further placed reliance on the decision in G. Ramanamma v. P. Chiranjeevi Rao 2010 (4) ALT 674 (S.B), wherein, the High Court took a similar view that discretionary jurisdiction to decree specific relief is not automatic even if the plaintiff proves the agreement and performance. He further placed reliance on the decision in G. Ramanamma v. P. Chiranjeevi Rao 2010 (4) ALT 674 (S.B), wherein, the High Court took a similar view that discretionary jurisdiction to decree specific relief is not automatic even if the plaintiff proves the agreement and performance. He has also relied on the decision of this High Court in Ramesh G. Makhija v. A.P. Industrial Infrastructure Corporation Limited, Hyderabad and others 2008(2) ALT 499 (S.B), wherein it was held that the Courts are expected to analyze the facts of a particular given case and exercise discretion to grant specific performance depending upon the facts and circumstances of a given case. 10. On the other hand, learned counsel for the respondent referred to the decision in Beemaneni Maha Lakshmi v. Gangumalla Appa Rao (since died) by LRs. 2019 (5) ALD 154 (SC), wherein basing on the facts and circumstances in that case, the plaintiff is held to have proved readiness and willingness and thus decreeing the suit for specific performance was held to be valid. 11. In the present case, though a notice was issued on 14.12.2006, calling upon the defendant for execution of the sale deed and the defendant has neither given reply nor did he come forward to execute the sale deed, no little finger is moved by the plaintiff till issuance of another legal notice, dated 01.09.2008 under exhibit A4. of course, the issuance of such legal notice is denied by the defendant. He has denied the receipt of notice under exhibit A2 in spite of acknowledgment under exhibit A3. Therefore, no much significance can be attached to his denial of receipt of legal notice under exhibit A4. In fact, the said notice was not served and was returned. Since it was duly addressed to the defendant, a presumption can be validly drawn in favour of the plaintiff. However, the fact remains that till such time, the plaintiff has not taken any active role in taking the matter forward after issuance of notice under exhibit A2. There is time gap of about one year eight months between these two notices. Thus, the plaintiff could not show his readiness and willingness during the said period, except remaining silent. However, the fact remains that till such time, the plaintiff has not taken any active role in taking the matter forward after issuance of notice under exhibit A2. There is time gap of about one year eight months between these two notices. Thus, the plaintiff could not show his readiness and willingness during the said period, except remaining silent. Though the purpose of sale is not mentioned in the agreement, it is elicited in the cross-examination of PW1 that the plaintiff intended to construct a mill by acquiring land of about eight acres and already six acres of land was purchased in the neighborhood of the plaint schedule property and this property could be for the same reason intended to be purchased. During the course of arguments, both the counsels stated that the mill was not constructed. It is also not the case of the plaintiff that the mill was constructed in the property already purchased. Therefore, the purpose of purchase is also not accomplished. It is also not the case of the plaintiff that because of non-availability of the plaint schedule property, they could not go ahead with the construction of the mill in the available site. 12. It is well settled proposition that readiness and willingness of the plaintiff is a fact to be established with the evidence on record and shall be examined in the light of the evidence in each case and there cannot be any strait-jacket formula for appreciating such evidence. As such, the evidence in each case is to be independently evaluated and appreciated. 13. In the present case, it is also to be seen that there has always been raise in the prices of immovable properties and a period of 1 1/2 years is not short and one can expect reasonable degree of raise in price during the said period. Merely because, the defendant has taken a plea regarding non-execution of the agreement of sale and the plaintiff could dismantle the same, the defendant cannot be put to hardship by granting the relief of specific performance in favour of the plaintiff. In view of the frequent raise in the immovable properties in these days, the likely hardship to the defendant in case of grant of specific performance is a material aspect to be considered while exercising discretion of the Court to grant or refusing the relief of specific performance. In view of the frequent raise in the immovable properties in these days, the likely hardship to the defendant in case of grant of specific performance is a material aspect to be considered while exercising discretion of the Court to grant or refusing the relief of specific performance. As such, for all these reasons, in the present case, in spite of the plaintiff succeeding in proving execution of the agreement of sale, it is a fit case where the main relief of specific performance can be refused. 14. Since execution of the agreement of sale is established, in the absence of proof to the contrary of the contents of the agreement, it can be said that the plaintiff could establish passing of part of sale consideration as defence in the said agreement. In view of refusal to grant specific performance of the agreement, the plaintiff is entitled to refund of the amount paid in advance, with reasonable rate of interest. Therefore, the defendants can be directed to refund the amount of advance with interest at the rate of 24% per annum from the date of agreement till the date of decree and thereafter, at the rate of 6% per annum in view of the jurisdiction vested in a civil Court under Section 34 CPC in respect of the period pending the suit and post decree. 15. In the result, the appeal is allowed setting aside the decree and judgment, dated 08.11.2011, passed by the Senior Civil Judge, Nandigama, in O.S. No. 82 of 2009, and the suit is decreed for the alternative relief of refund of the amount of Rs. 80,000/- with interest at the rate of 24% per annum from the date of the agreement, that is, 27.09.2006, till the date of decree and thereafter, at the rate of 6% per annum thereon till the date of realization. Both parties shall bear their own costs throughout. Miscellaneous petitions pending, if any, shall stand closed.