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2023 DIGILAW 920 (AP)

Koneru Nagendra Prasad v. Bangi Prasad

2023-06-21

V.R.K.KRUPA SAGAR

body2023
JUDGMENT : Defendant No.1 in the suit filed this first appeal under section 96 r/w Order XLI Rule 1 CPC assailing the judgement dated 24.03.2017 of learned II Additional District Judge, Kurnool at Adoni in O.S.No.13 of 2011. 2. Respondent No.1 in this appeal is the plaintiff in the suit and respondent No.2 in this appeal is defendant No.2 in the suit. 3. About AC.1.20 1/2 cents in Survey No.589A and 589B/2 situated in Yemmiganur of Kurnool district of Andhra Pradesh is shown in the plaint schedule. Plaint schedule further described that the above land consisted of various plots of different dimensions. All together 21 plots situated within the extent of land. Originally, this land belonged to Sri K.Rajarao by virtue of registered sale deed dated 25.02.2006. He died thereafter. His property was succeeded by his son Sri K.Nagendrda prasad and Sri K.Venkataramana. Sri K.Venkataramana by a sworn affidavit dated 14.06.2006 authorized, out of his full consent, his brother Sri.K Nagendra Prasad to sell this property or to enter into an agreement for sale and receive the sale proceeds and register the land in favour of the vendors and enjoy the benefits thereof. Thereafter the said Sri K.Nagendra Prasad executed an agreement for sale deed dated 18.10.2008 in favor of Sri Bangi Prasad whereunder he agreed to sell the property. Various time stipulations are mentioned in the agreement with reference to payment of sale consideration. It is in the context of above undisputed facts Sri Bangi Prasad who intended to purchase the property filed O.S.No.13 of 2011 as against the executant of the agreement Sri K.Nagendra Prasad and his brother Sri K.Venkataramana showing them as defendant Nos.1and 2. Plaint averred all the particulars of payments and exchange of notices that occurred between plaintiff and defendant No.1 stating that the plaintiff has always been ready and willing to perform his part of contract but defendant No.1 refused to perform his part of the contract. Therefore, plaintiff laid the suit with the following prayers: 1. For specific performance of the contract directing the defendants to execute a sale deed in respect of plaint schedule mentioned property by duly registering the same and also for delivery of possession of the same to the plaintiff and in case the defendants fail to do so, the same may be performed through process of Court. For specific performance of the contract directing the defendants to execute a sale deed in respect of plaint schedule mentioned property by duly registering the same and also for delivery of possession of the same to the plaintiff and in case the defendants fail to do so, the same may be performed through process of Court. Or For a decree for Rs.24,40,125-00 with Court costs and future interest at the rate of 18% per annum from the date of plaint till realization of the amount by creating a charge over the plaint schedule mentioned property. 2. For costs of the suit and 3. For such other reliefs as the Hon’ble Court may deems fit in the circumstances of the case. The suit was contested by Sri K.Nagendra Prasad and the suit was not contested by Sri K.Venkataramana. Defendant No.1/Sri K.Nagendra Prasad in his written statement denied the plaint mentioned allegations. It is stated that the various payments alleged to have been made by the plaintiff to him were not paid by the plaintiff and they were paid by the broker Sri V.Sreeramulu and that the plaintiff failed to perform his part of the contract within the time limits fixed in the agreement for sale. The relative of plaintiff Sri S.Sivasankarappa is behind this litigation .The payments alleged in the plaint were also made by the said Sivasankarappa. Plaintiff has not been ready and willing to perform his part of contract, the suit is barred by limitation. For those reasons, he sought for dismissal of the suit. Learned Additional District Judge on considering the material on record and on hearing both sides settled the following issues for trial: 1. Whether the agreement of sale dated 18.10.2008 is true, valid and binding on the defendants? 2. Whether plaintiff is entitled to specific performance of contract directing defendants to execute registered sale deed in pursuance of agreement of sale dated 18.10.2008? 3. Whether the plaintiff is entitled to recover an amount of Rs.24,40,125/- with interest from defendants as alternative relief? 4. To what relief? 4. During the course of trial, plaintiff testified as PW.1 and the broker who materialized the agreement for sale testified as PW.2 and the scribe of the agreement for sale testified as PW3. Exs.A1 to A18 for plaint were exhibited. As against that evidence defendant No.1 testified as DW.1 and he got marked Exs.B1 and B2. 4. To what relief? 4. During the course of trial, plaintiff testified as PW.1 and the broker who materialized the agreement for sale testified as PW.2 and the scribe of the agreement for sale testified as PW3. Exs.A1 to A18 for plaint were exhibited. As against that evidence defendant No.1 testified as DW.1 and he got marked Exs.B1 and B2. After hearing arguments on both sides and on considering the entire evidence on record, learned trial Court agreed with the claim of the plaintiff. It found that Ex.A1 agreement for sale was executed by the defendant and he was authorized to execute the same for himself and also on behalf of his brother being empowered under Ex.A2 sworn affidavit of his brother and that the plaintiff has been punctually paying requisite payments as stipulated in the agreement for sale and there was no breach of contract on his part and the remaining balance sale consideration was deposited by him into Court and that the defendant as DW.1 in his evidence admitted the correctness of Exs.A1 and A2 and all the payments made on the reverse of Ex.A1 agreement for sale and that the plaintiff was found ready and willing to perform his part of the contract all throughout. With those findings he held all the issues in favour of the plaintiff and granted the primary relief holding that the defendant Nos.1 and 2 shall execute registered sale deed in favour of the plaintiff and withdraw the money that was deposited into Court and for doing this he granted three months time to the defendants. 5. Challenging the said judgment defendant No.1 alone preferred this appeal and defendant No.2 did not prefer this appeal. In the memorandum of grounds of appeal, it is stated that time is the essence of the agreement for sale and plaintiff was not ready and willing to perform his part of the contract. Though under Ex.A5 all the measurements of the property were furnished to the plaintiff, he did not pay the balance sale consideration within the time stipulated in the agreement for sale and he did not offer any explanation for delay in performance and the learned trial Court failed to consider all these aspects and erroneously granted the decree. Though under Ex.A5 all the measurements of the property were furnished to the plaintiff, he did not pay the balance sale consideration within the time stipulated in the agreement for sale and he did not offer any explanation for delay in performance and the learned trial Court failed to consider all these aspects and erroneously granted the decree. The memorandum of grounds of appeal, further indicates and assails the impugned judgment stating that plaintiff had no financial capacity and he is a benami to Sivasankarappa and plaintiff himself did not pay any money and it is the broker Sri V.Sreeramulu and Sri Sivasankarappa who made the payments. In ignorance of all these facts borne by evidence, the learned trial Court erroneously decreed the suit. 6. During the course of arguments, learned counsel for appellant contended that Ex.A1 agreement for sale is silent about any rights of defendant No.2 and his share and that the plaintiff has full knowledge about right of defendant No.2 over the plaint schedule property and in terms of section 17 of specific relief act, the suit for specific performance for the entire property which includes the share of defendant No.2 is not maintainable. Therefore, Section 12(3) and section 17 of specific relief act needs to be extracted here. Therefore, Section 12(3) and section 17 of specific relief act needs to be extracted here. Section 12(3) of specific relief act: “Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either- (a) forms a considerable part of the whole, though admitting of compensation in money; or (b) does not admit of compensation in money; he is not entitled to obtain a decree for specific performance; but the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party- (i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must by left unperformed and in a case falling under clause (b) pays of has paid the consideration for the whole of the contract without any abatement; and (ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all rights to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant.” Section 17(1) of Specific Relief Act: Contract to sell or let property by one who has no title, not specifically enforceable:- “A contract to sell or let any immoveable property cannot be specifically enforced in favour of a vendor or lessor- (a) who, knowing himself not to have any title to the property, has contracted to sell or let the property; (b) Who, though he entered into the contract believing that he had a good title to the property cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt.” On these principles it is urged that the impugned judgment is against law and is liable to be set aside. 7. As against those submissions, learned counsel for respondent No.1/plaintiff argued that from the evidence it was found that under Ex.A2, defendant No.2 authorized defendant No.1 to deal with the immovable property and an affidavit of that nature by the time of its execution in the year 2008 did not require any registration also. 7. As against those submissions, learned counsel for respondent No.1/plaintiff argued that from the evidence it was found that under Ex.A2, defendant No.2 authorized defendant No.1 to deal with the immovable property and an affidavit of that nature by the time of its execution in the year 2008 did not require any registration also. Ex.A5 which is a copy of layout plan given by the defendant No.1 to the plaintiff was only an unauthorized plan and there was no approved layout and therefore measurements mentioned therein could not be considered as correct and in terms of Ex.A1 agreement for sale the appellant was bound to take the measurements in the presence of plaintiff and he never invited the plaintiff to see that the measurements were taken in his presence and it was only because of that attitude of appellant there was delay in payment of the balance sale consideration of Rs.3,50,000/- which was in fact offered to the appellant by way of demand draft earlier to the institution of the suit and soon after filing of the suit plaintiff deposited that amount also and that plaintiff has always been ready and willing to perform his part of the contract. By virtue of Ex.A2 affidavit appellant was deemed to be the authorized agent for defendant No.2 to alienate the property under Ex.A1 and therefore neither section 17 nor section 12(3) of specific relief act have any place. Learned counsel further contended that in the written statement there was no plea with reference to non-maintainability of the suit and throughout the trial and also at the time of arguments before the trial Court non-maintainability of the suit on the grounds of Section 17 and Section 12 was never raised and therefore raising such ground for the first time in the first appeal is against law. Learned counsel further argued that defendant No.2 did not contest the suit and did not prefer any appeal and that indicates admission of defendant No.2 to oblige with the agreement for sale executed by the appellant and oblige the decree and therefore appellant/defendant No.1 cannot contend contrary to this. Learned Counsel submits that reading of the evidence of appellant recorded by the trial Court itself would indicate the litigious nature of defendant No.1 and dodging the performance of duties without any valid reason. He finally argued for dismissal of the appeal. Learned Counsel submits that reading of the evidence of appellant recorded by the trial Court itself would indicate the litigious nature of defendant No.1 and dodging the performance of duties without any valid reason. He finally argued for dismissal of the appeal. learned counsel on both sides cited legal authorities. In the context of above facts and arguments, the following points fall for consideration before this Court. 1. Whether terms of Ex.A1 agreement for sale were not complied with by respondent No.1/plaintiff. 2. Whether respondent No.1/plaintiff failed to plead and prove his readiness and willingness as required under law. 3. Whether the trial court committed error in decreeing the suit for specific performance despite the fact that appellant was only a sharer and other sharer/respondent No.2/ defendant No.2 was not a party to Ex.A1 agreement for sale. 4. Whether the impugned judgment suffers from any error of fact or law requiring interference. This Court has considered the entire oral and documentary evidence available on record. While this appeal was filed in the year 2017 and five years thereafter the appellant preferred I.A.No.1 of 2022 under Order XLI Rule 27 read with Section 151 C.P.C. to permit him of producing additional evidence in the form of five documents namely. 1. Copy of Petition and Affidavit. 2. Certified copy of proceedings RTI/2016-17/60. 3. Copy of letters and Neat Copies. 4. Copy of Envelope. 5. Copy of Draft Application Forms and Neat Copies. Those proposed documents are intended to be introduced in evidence to prove that Rs.3,50,000/- that was offered to the appellant by the plaintiff under Ex.A15 was a Banker’s cheque not drawn by the plaintiff but was drawn by Sri S.Sivasankarappa. That these documents are required to prove that the plaintiff had no money with him. Contesting the application respondent No.1/plaintiff filed a counter stating that the contentions of the appellant remained same from the time of institution of the suit and these documents could have been filed before the trial Court and he did not file them and they could have been filed at the time of filing of the appeal and they were not filed. That sale consideration could flow from the intending purchaser or through someone on his behalf and that payments were made by someone on behalf of the intending purchaser is valid payment and that the payments were accepted and received by the executant of the agreement/appellant all throughout without any demur and the proposed evidence even if accepted as correct has no bearing on the obligations available between the parties under Ex.A1. It is for these reasons he sought for dismissal of the petition. Learned counsel on both sides also argued this application along with the appeal. 8. Therefore, the additional point that falls for consideration is: “Whether the proposed evidence makes out a case in terms of principles laid down in order XLI Rule 27 CPC?” POINT: A suit for specific performance of an agreement for sale is governed by section 16(c) of the specific relief Act, 1963 and article 54 of the schedule to the limitation Act, 1963. Form Nos.47 and 48 of appendix A to the code of civil procedure, 1908 prescribe the format of the plaint for such suit. 9. Section 16 (c) of the act, 1963 enacted personal bars to relief. Specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than the terms the performance of which has been prevented or waived by the defendant. It further provides by way of an Explanation where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the court. The plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. 10. Article 54 of the limitation Act provides a period of three years for filing a suit for specific performance of the contract. This three years period is required to be computed from the date fixed by the parties for the performance, or if no such date is fixed, when the plaintiff has noticed that the performance is refused. 11. Order VI Rule 8 CPC provides the guiding principles for pleadings. It is relevant to extract Order VI Rule 8 CPC. This three years period is required to be computed from the date fixed by the parties for the performance, or if no such date is fixed, when the plaintiff has noticed that the performance is refused. 11. Order VI Rule 8 CPC provides the guiding principles for pleadings. It is relevant to extract Order VI Rule 8 CPC. order VI Rule 8 CPC:- Denial of contract:- “Where contract is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract alleged or of the matters of fact from which the same may be implied, and not as a denial of the legality or sufficiency in law of such contract.” Ex.A1 is the agreement for sale dated 18.10.2008. This was executed by the appellant/defendant No.1 in favour of respondent No.1/plaintiff. By its terms, it indicates that a land in an extent of about Ac.1.20 1/2 cents was agreed to be sold by the vendor to the vendee and the sale consideration is fixed at the rate of Rs.20,25,000/- per acre. As it transpires from the record the total sale consideration would be about Rs.23,50,000/. As per the terms of the contract between the parties a schedule for payment of the sale consideration is fixed as mentioned below: On the date of agreement- Rs.1,00,000/-, on or before 16.11.2008- Rs.4,00,000/-, on or before 06.02.2009- Rs.5,00,000/-, on or before 18.04.2009- the remaining balance of sale consideration. It is then mentioned in the agreement for sale that the vendor agreed to have the land measured and on such measurements, and on realizing the correct measurements, the amount paid has to be calculated and if anything more is required to be paid the vendee has to pay it and on such payment the vendor agreed to register the sale deed in favour of any person named by the vendee. 12. Plaintiff as PW.1 and the broker who dealt with the transaction between the parties as PW.2 and the scribe of Ex.A1 agreement for sale as PW.3 swore and stated in their evidence about the settlement of this bargain between the parties and the execution of the document by the defendants. 13. 12. Plaintiff as PW.1 and the broker who dealt with the transaction between the parties as PW.2 and the scribe of Ex.A1 agreement for sale as PW.3 swore and stated in their evidence about the settlement of this bargain between the parties and the execution of the document by the defendants. 13. In his evidence PW.1 gave the details of his payments and stated that on the date of execution of Ex.A1 he paid Rs.1,00,000/- and the same is acknowledged in the agreement itself. On 05.11.2008, he paid Rs.4,00,000/- by way of cash and the same was received and acknowledged by the defendant and he signed in proof of it. On 05.02.2009 he remitted Rs.5,00,000/- into the savings bank account of the defendant on that day as the defendant was not available his wife signed and acknowledged it and a few days later after the arrival of the defendant on 18.02.2009, he also acknowledged it. On 18.04.2009 by way of banker’s cheque bearing No.027901 drawn on State Bank of India Yemmiganur Branch, he paid Rs.10,00,000/- and the appellant/1st defendant received it and acknowledged it. All these payments and acknowledgements are endorsed on the back of the first page of the agreement for sale. They are marked as Exs.A16, A17 and A18. Appellant/defendant No.1 gave evidence as DW.1 and in his examination in chief, he admitted execution of Ex.A1 agreement for sale (Para No.7) and he admitted about receipt of Rs.1,00,000/- under that agreement for sale. He admitted receipt of all the subsequent payments spoken to by PW.1 and also admitted his acknowledgement of those payments (Para No.8). 14. From the above evidence, it is clear that execution of Ex.A1 agreement for sale between the parties and various payments made by the respondent No.1 in favour of the appellant are all undisputed and are proved. Learned trial Court on the above referred evidence reached to an appropriate conclusion of proof of the above referred facts. In this appeal, all these facts and findings are not disputed. Thus, the above evidence would show that by 18.04.2009, respondent No.1/plaintiff paid and the appellant/defendant No.1 received Rs.20,00,000/- for sale consideration. There remains a balance sale consideration of Rs.3,50,000/-. The outer date mentioned in agreement for sale was 18.04.2009. Thus, by that date this balance sale consideration was overdue. 15. Thus, the above evidence would show that by 18.04.2009, respondent No.1/plaintiff paid and the appellant/defendant No.1 received Rs.20,00,000/- for sale consideration. There remains a balance sale consideration of Rs.3,50,000/-. The outer date mentioned in agreement for sale was 18.04.2009. Thus, by that date this balance sale consideration was overdue. 15. Plaint contains the averments that the plaintiff has always been ready and willing to perform his part of the contract and to the same effect is the evidence of PW.1 and also that of PW.2 and PW.3 periodical payments as fixed in the agreement for sale were promptly complied with and payments were made by the plaintiff, excepting Rs.3,50,000/-. All these go to show that there are pleadings and evidence indicating readiness and willingness of the plaintiff in fulfilling his terms of the contract. 16. Speaking about this balance sale consideration, it is averred in the plaint and it is there in the evidence of PW.1 that in terms of agreement for sale, the accurate sale consideration has to be worked out only on completing the task of taking accurate measurements of the property and it was the duty of the vendor as per the terms of Ex.A1 to have the land measured and it was in that regard while making the last mentioned payment of Rs.10,00,000/- on 18.04.2009 he asked the defendant to get the land measured so that he could immediately pay the balance sale consideration. He said that defendant failed to do so. A couple of months thereafter, as per the evidence of PWs.1and 2, defendant was approached by PW.2 to get the land measured and Rs.3,50,000/- was also offered to him as a tentative amount due but the defendant No.1 told them that he would receive that money only after he got the lands measured. This is how the plaintiff sought to explain his readiness and willingness to make the complete payment and that he could not make it only because defendant failed to measure the lands. Whether taking measurements is a precondition or not becomes relevant. As seen earlier it is on payment of the total consideration, vendor agreed to take the measurements and then calculate the sale consideration and then adjust it accordingly. Whether taking measurements is a precondition or not becomes relevant. As seen earlier it is on payment of the total consideration, vendor agreed to take the measurements and then calculate the sale consideration and then adjust it accordingly. Principles of law are already recognised in the earlier paragraphs that actual payment by itself is not necessary and even actual tender was not necessary and the only requirement was his readiness and willingness to make the payment. The evidence of PW.1 and 2 indicate the readiness and willingness on part of the plaintiff to pay the balance sale consideration. To see whether that oral evidence is a matter of truth or not, the other evidence on record would help in determining it as the defendant was not coming forward to complete the task. Plaintiff got issued Ex.A7 notice dated 11.05.2010 and along with this he sent Rs.3,50,000/- by way of bankers cheque bearing No.744369 dated 10.05.2010. Appellant received it and he sent a reply notice dated 14.05.2010. Para No.1 to 3 of this reply notice are required to be extracted here: 1. Who is this Bangi Prasad? Is he a glob trotter having no residential or business address if any? Or only a name lender benami to some body also? If correct and identifiable address is given my client is prepared to give a suitable reply to the material allegations made in your notice. 2. There is neither Banker’s Cheque nor the allegations in your notice reflect the true and correct state of affairs. 3. If your client without making good the deficiencies pointed out, hastily goes to a Court of Law he will be doing so at his own risk and costs. Thereafter plaintiff obtained duplicate bankers cheque and sent another notice dated 19.05.2010 as per Ex.A10. Defendant No.1/appellant through Ex.A12 notice dated 28.05.2010 sent back the duplicate bankers cheque and denied the case alleged by the plaintiff and attributed breach of contract on part of the plaintiff and it was stated that there was already a survey of the land and time is essence of the contract and since the plaintiff committed breach of contract, the payments made so far were forfeited. Why the appellant sent back the banker’s cheque shall be seen from his own evidence. Why the appellant sent back the banker’s cheque shall be seen from his own evidence. At Para No.10 of his examination in chief affidavit DW.1/appellant stated that the notice along with the duplicate banker’s cheque having been received by the counsel, the learned advocate expressed his predicament stating that the financial transaction between the parties was to be taken care of by the parties themselves and he could not be made a party to such transactions and therefore, he had intended to send back the banker’s cheque. Thus, the return of banker’s cheque concerning the balance sale consideration was at the volition of the appellant as per advice of his counsel. This conduct of appellant cannot be attributed as a non-payment of balance sale consideration on part of plaintiff/respondent No.1. 17. After filing the suit, P.W1 deposed, he deposited this Rs.3,50,000/- into the account of the Court. In Para.No. 24 of its judgment the learned trial court mentioned that such payment was remitted vide challan No.8108 by the plaintiff. Appellant as DW.1 in his cross-examination admitted that this plaintiff made deposit of that balance consideration into the Court. 18. The above events would show that on the outer date mentioned in the agreement for sale which was 18.04.2009 PW.1 and 2 went and requested the defendant No.1 to have the land measured and they conveyed to him that the balance sale consideration was available and they requested on subsequent dates for completion of the task and the defendant was not forthcoming. Banker’s cheque was sent and thereafter duplicate banker’s cheque was sent and thereafter suit was laid and the deposit of balance sale consideration was made. These facts do indicate, when read in the context of a total of 4 earlier payments totalling Rs.20,00,000/- punctually within the time schedules, will show that the evidence of PW.1 that he has always been ready and willing to perform his part of the contract is clearly established. 19. According to defendant accurate measurements were already available and Ex.A5 which is a copy of layout plan was given by him to the plaintiff. PW.1 in his evidence stated that it was given to him on the date of Ex.A1 agreement for sale itself. 19. According to defendant accurate measurements were already available and Ex.A5 which is a copy of layout plan was given by him to the plaintiff. PW.1 in his evidence stated that it was given to him on the date of Ex.A1 agreement for sale itself. If really Ex.A5 contains true measurements of the property that was sought to be sold, then there was no need to have a term entered into between the parties in Ex.A1 where under appellant undertook to have the measurements taken before registration of regular sale deed. Thus, even by the own conduct of appellant, it is seen that he was not prepared to have the land measured in accordance with the terms of contract. Coming to Ex.A5 one has to see the character of the document from the very evidence of DW.1. In his cross-examination DW.1 stated that Ex.A5 is a rough layout prepared by him and others and it is not an approved layout. He admitted that unless the agricultural lands were permitted to be converted into non-agricultural land and unless a part of the land was surrendered to municipality which could be utilised for laying roads, parks etc., a layout could not be approved and all these legal formalities were not complied with by him. It is in the light of these pieces of evidence, learned trial court rightly rejected the contentions of appellant. The findings were recorded by the learned trial court based on evidence. The conclusions reached are in accordance with reason and logic. Appellant has not even argued how those conclusions would be called as perverse. Appellant thus demonstrated his unwillingness to comply with obligations that are lying on his shoulders, namely, have the land measured and calculate the correct sale consideration amount and receive the same and register the sale deed. Therefore contentions of the appellant that there was no fault on part of him and there was breach of contract on part of plaintiff is incorrect and is against the very evidence of appellant himself. 20. It is undisputed that plaintiff is a resident of Bellary of Karnataka State and this appellant is a resident of Yemmiganur of Andhra Pradesh State. Earlier to this Ex.A1 bargain between the parties they had no acquaintance between themselves. According to plaintiff as well as appellant/defendant No.1, the transaction came to be materialised through a land broker/PW.2. This PW.2 belongs to Yemmiganur. Earlier to this Ex.A1 bargain between the parties they had no acquaintance between themselves. According to plaintiff as well as appellant/defendant No.1, the transaction came to be materialised through a land broker/PW.2. This PW.2 belongs to Yemmiganur. Appellant as DW.1 stated about his avocations and professions. He said that he is a vastu professional and he is also an agriculturist and for some time he did real estate business in the name and style of koneru real estate. He further said that between 2005 and 2010, he was councillor for ward No.21 of Yemmiganur municipality. He contested in the subsequent elections also. He stated that challenging the election of an MLA, he also filed an election petition earlier and he further said that challenging the election of a councillor for ward No.23, he filed another election petition. According to him he knows PW.2 very well. That is the evidence of PW.2 also. 21. It is found from the evidence of PW.1 and DW.1, that plaintiff/respondent No.1 has a sister and she was given in marriage to Sri Sivasankarappa and thus plaintiff is the brother-in-law of Sivasankarappa and that the said Sivasanakarappa worked in State Bank of India at Yemmiganur. During the cross-examination of DW.1, it was elicited that S.Sivasankarappa and his wife purchased ten acres of land from Yemmiganur Spinning Mills. DW.1 also stated that he in fact entered into an agreement for purchase of that land and an agreement was there and finally that fizzled out and as a consequence he had to file O.S.No.11 of 2008 against Yemmiganur Spinning Mills. He further admitted in his crossexamination that Sri Sivasankarappa was a successful purchaser and he has a daughter by name Suchitra and that Suchitra filed a claim petition in the above referred O.S.No.11 of 2008 and as a consequence a part of the land which the appellant got attached in that suit suffered and that attachment was raised. These facts do indicate some disputes between appellant and brother-in-law of respondent No.1/plaintiff. These are relevant facts to appreciate the contentions raised by the appellant before the trial Court as well as in this Court. 22. The contention of the appellant is that plaintiff/respondent No.1 never paid any amount of money to him and the amounts of money that were received by him were really paid either by PW.2/the broker or by Sivasankarappa. These are relevant facts to appreciate the contentions raised by the appellant before the trial Court as well as in this Court. 22. The contention of the appellant is that plaintiff/respondent No.1 never paid any amount of money to him and the amounts of money that were received by him were really paid either by PW.2/the broker or by Sivasankarappa. He further contends that the plaintiff had no financial capacity and he is only a benami. It is to prove these aspects, the appellant filed the interlocutory application for production of additional evidence to show that final payment of Rs.3,50,000/- that was sought to be paid by way of Banker’s Cheque was not obtained by plaintiff but was obtained by Sivasankarappa in favour of the appellant. Even if all these facts are accepted to be true what is their legal affect on the rights and obligations of the parties involved in the suit is to be seen. The first four payments evidenced by Ex.A1 and Exs.A16,A17 and A18 were coolly received by this appellant and he acknowledged them. He never murmured and never protested in receiving those amounts. He never took any objection that they were the moneys of others and not the moneys of vendee. As long as he received payments, he was happy and did not inquire whose money the vendee was paying to him. It is only after receiving the major part of sale consideration, he started causing troubles to the vendee. The vendee was entitled to pay from out of his pocket and he was also entitled to seek finance from others and pay it to the vendor. As long as the legitimacy of the money was not in question all such payments are valid. Payment and receipt of money is a matter of fact and not a matter of law. The effort of appellant to show that Rs.3,50,000/- was not from the pocket of plaintiff but from the pocket of his brother-in-law has no legal bearing at all. It is an apparent effort on part of appellant to procrastinate the litigation through his frivolous allegations is causing annoyance to the vendee. Even if all his beliefs are true, they absolutely have no existence when they are considered on a legal parameter. It is an apparent effort on part of appellant to procrastinate the litigation through his frivolous allegations is causing annoyance to the vendee. Even if all his beliefs are true, they absolutely have no existence when they are considered on a legal parameter. Therefore, it is clear that the proposed evidence does not help in any manner in adjudicating the dispute between the parties and in fact there is no satisfactory explanation as to why such evidence was not sought to be produced during the course of long drawn trial between the parties before the learned trial Court. Therefore, I.A.No.1 of 2022 is dismissed. 23. It is already noticed that the admitted case on both sides that the agreement mentioned property is owned by appellant and his brother/respondent No.2. It is also seen under Ex.A2, respondent No.2 fully authorised this appellant to deal with the suit schedule property. According to the plaintiff/respondent No.1 it is by virtue of Ex.A2, the appellant, acting as an agent on behalf of his brother, executed the agreement for sale and since admittedly there was no registered relinquishment deed executed by respondent no.2, plaintiff had to file the suit against both the brothers. As long as there is valid authorisation for the appellant, the agreement entered into by him binds both the brothers. The evidence of appellant/DW.1 Is a matter of relevance here. Para No.4 of examination in chief is extracted here: “The defendant humbly submit that the defendant No.2 has given to me a notarized affidavit dated 14.06.2006 declaring that the schedule property in this suit totally belongs to me and hence defendant No.2 is no way concerned to this suit.” Thus, at the trial this appellant did not dispute the maintainability of the suit on the ground that his brother did not sign the agreement for sale in Ex.A1. It was not his case that he was not entitled to execute Ex.A1 agreement for sale for himself and on behalf of his brother. When these facts are known to the defendant No.1/appellant and when these facts are also known to plaintiff/respondent as could be seen from the averments in the plaint and the evidence of PW.1, then it is clear that between the parties there has always been full knowledge of facts indicating the true ownership of the property. When these facts are known to the defendant No.1/appellant and when these facts are also known to plaintiff/respondent as could be seen from the averments in the plaint and the evidence of PW.1, then it is clear that between the parties there has always been full knowledge of facts indicating the true ownership of the property. It is for this reason, in his written statement this appellant never contended anything about maintainability of the suit on the ground that his brother did not sign the agreement for sale. Therefore, no issue was settled by the trial court and in the grounds of appeal preferred before this Court also no such legal ground is urged. However, it is during the course of arguments the learned counsel for appellant argued the nonmaintainability of the suit and cited a few legal authorities. 24. Polepalle Subramanyam Chetty V. Gundamreddy Peddakka, 2000 (5) ALD 719 (AP). That was a case where mother-in-law and son-inlaw have got equal shares over an immovable property. Without obtaining any authorization from son-in-law, she herself executed an agreement for sale for the entire property. It was in that context of facts, this court had to examine the facts on the touch tone of Section 12(3) of the Specific Relief Act. When the suit for specific performance was filed the same was dismissed and in the first appeal that dismissal was confirmed and in the second appeal same result was arrived at and this court held that since there was no valid authorization for the mother-in law and since the son-in-law did not sign the agreement for sale, the plaintiff therein was not entitled for a registered sale dead. In the case at hand, there is valid authorization under Ex.A2 and therefore the ratio of the above ruling has no application to the facts at hand. Learned counsel for appellant cited S.Nagulal Rao V. Medam Jayaramaiah, 1996 (1) ALD 906 (D.B). That was a case where the property belonged to joint family and there are several sharers and when the proposed purchaser contacted the head of the family for purchase of the property, the head of the family informed him that he had no complete rights over the property and there are other sharers. However, purchaser obtained an agreement for sale for the entire property from him telling the executant that he would convince others to sell the property. However, purchaser obtained an agreement for sale for the entire property from him telling the executant that he would convince others to sell the property. Finally, purchaser had to file a suit for specific performance. The Hon’ble Division Bench of this Court noticing all these facts and interpreting Section 12 of Specific Relief Act held that it is a case where both parties knew about non-availability of transferable rights by the executant of the agreement for sale and therefore suit for specific performance for the entire property could not be maintained. In the case at hand the facts are altogether different and the facts of ownership of property by both the brothers is known to both sides and only after obtaining Ex.A2 authorization from respondent No.2/defendant No.2, his brother appellant/defendant No.1 executed Ex.A1 agreement for sale. Non mentioning of the fact that he was executing for himself and also on behalf of his brother by itself has no legal consequence since there is already a substring authorization. Therefore, on facts, the ratio of the above ruling has no application and does not render any aid to the appellant. The contention raised by the appellant about the maintainability of the suit for the first time through the arguments cannot be countenanced. As noticed earlier Order VI Rule 8 CPC requires the defendant to plead legality of Ex.A1 in his written statement. He did not plead the illegality of Ex.A1 on the ground that it was not signed by his brother. No issue was settled before the trial Court. No argument was rendered before the trial court. No particular finding was invited from the trial Court in this regard. In the grounds of appeal also there is no specific contention in this regard. So, what is argued for the first time in the first appeal has come up only during the course of arguments and not earlier to it. In such circumstances, such submissions need not be countenanced. That is the law laid down by the Hon’ble Supreme Court of India in A.Kanthamai V. Nasreen Ahmed, 2017 LawSuit(SC)179/2017(4)(SCC) 654 which is rightly cited by the learned council for respondent No.1/plaintiff. It is for all these reasons the argument advanced on behalf of the applicant is negatived. 25. In such circumstances, such submissions need not be countenanced. That is the law laid down by the Hon’ble Supreme Court of India in A.Kanthamai V. Nasreen Ahmed, 2017 LawSuit(SC)179/2017(4)(SCC) 654 which is rightly cited by the learned council for respondent No.1/plaintiff. It is for all these reasons the argument advanced on behalf of the applicant is negatived. 25. One of the submissions made at the bar for appellant was that by his reply notice the appellant forfeited the advance sale consideration and cancelled the agreement for sale and therefore the suit for specific performance is not maintainable. There is no merit in this contention. Ex.A1 does not contain any forfeiture clause. The alleged cancellation was not accepted by the vendee and therefore he sued for specific performance. A unilateral cancellation by one does not prevent the other from pursuing the terms of contract and seeking their enforcement is approved at law vide Potluri Babu Rao V. Sistla Neelagriva Sastry, 1994 (3) ALT 669 (AP). 26. On a complete assessment of the case, this court finds that all the findings recorded by the trial Court are in accordance with facts and law and no perversity is seen. There is no merit in any of the grounds urged in this appeal and the submissions made before this Court on behalf of the appellant. In these circumstances. this Court holds that there is no warrant for interference with the judgement impugned here. Hence, all the points are answered against the appellant. In the result, the appeal stands dismissed with costs and as a consequence judgment dated 24.03.2017 in O.S.No.13 of 2011 of the Court of II Additional District Judge, Kurnool at Adoni stands confirmed. The appellant and respondent No.2/defendant No.2 shall execute the regular register sale deed in favour of respondent No.1/plaintiff within two months from the date of this judgment. As a sequel, miscellaneous applications pending, if any, shall stand closed.