Muvvala Suryanarayana Satyanarayana v. Bommisetti Surya Kumari
2023-06-23
T.MALLIKARJUNA RAO
body2023
DigiLaw.ai
JUDGMENT : 1. The Appeal, under Section 96 of the Code of the Civil Procedure, is filed by the appellant/2nd defendant challenging the decree and judgment dt.30.11.2012 in O.S.No.117 of 2004 passed by the XI Additional District Judge, Fast Track Court, Guntur at Tenali (for short, ‘trial court’). 2. The parties will hereinafter be referred to as arrayed before the trial court. 3. The facts leading to the present appeal in a nutshell are as under : (a) The plaintiff and defendants 1 and 2 are the parties to the sale agreement. The 1st defendant is the father of the 2nd defendant. The 3rd defendant is the married daughter of the 2nd defendant. The 4th defendant is the wife of the 1st defendant. Defendants 5 to 9 are the daughters of the 1st defendant. During the ongoing legal proceedings, the 1st defendant passed away, and Defendants 4 to 9 are brought on record as other legal representatives of the 1st defendant. (b) The plaint schedule property is the 1st defendant's self-acquired property, which he purchased from Koganti Subbaiah and others under a Registered Sale Deed dated 04.04.1963. The 1st defendant subsequently demolished the old tiled house on the plaint schedule site and built a three-storied building (terraced building). The 1st defendant has absolute rights to the plaint schedule property. (c) The plaintiff and defendants 1 and 2 entered a sale agreement for plaint schedule property. The 1st defendant, who is 82 years old, intended to sell the property along with the 2nd defendant because it was not generating sufficient income. The plaintiff, through her husband, approached defendants 1 and 2 to purchase the property. Eventually, defendants 1 and 2 agreed to sell the property to the plaintiff for Rs.20,10,105/-, with an agreement of sale executed on 20.05.2004, receiving Rs.2,10,105/-as earnest money. (d) According to the agreement terms, the plaintiff was required to pay the remaining balance of Rs.18,00,000/- within 75 days, after which defendants 1 and 2 would execute and register the sale deed and deliver possession of the property. If the plaintiff fails to pay by the due date, she must pay the balance with 12% interest. If defendants 1 and 2 defaulted, they would have to pay the interest on the earnest money upon registration of the sale deed.
If the plaintiff fails to pay by the due date, she must pay the balance with 12% interest. If defendants 1 and 2 defaulted, they would have to pay the interest on the earnest money upon registration of the sale deed. (e) As defendants 1 and 2 used tactics to delay the completion of the sale transaction, the plaintiff had a registered notice issued to them through her Advocate stating that she has always been ready and willing to perform her part of the contract by preparing the balance of the sale consideration and stamp and registration charges and calling on them to execute and register the sale deed in her favour and deliver possession of the property. (f) However, the daughter of the 1st defendant, i.e., the 8th defendant in this case, claimed a share in the property. The plaintiff published a notice regarding the sale agreement, inviting objections, and prepared the balance of the sale consideration and the required stamp and registration charges. Despite issuing registered notices, defendants 1 and 2 did not respond, and instead, they filed a caveat stating that the 1st defendant had gifted the property to the 3rd defendant. (g) The plaintiff contends the gift does not affect her rights under the sale agreement. The plaintiff also alleges fraud on the part of defendants 1 to 3. In response, she filed a criminal complaint against the defendants under Section 420, read with Section 120B of the Indian Penal Code. The plaintiff suffered mental distress and incurred approximately Rs.50,000/-. Consequently, the plaintiff filed a suit seeking specific performance of the sale agreement and, alternatively, claimed Rs.10,00,000/-in damages, including a refund of the earnest money of Rs.2,10,105/-. 4. (a) The 2nd defendant filed his written statement, which was adopted by the 1st defendant, admitting the execution of the agreement of sale dated 20.05.2004, and sought proof of execution of a gift deed by the 1st defendant in favour of the 3rd defendant defeating the purpose of agreement of sale and fraud played by defendants 1 and 2 and cheating the plaintiff. The 1st defendant is the absolute owner of the plaint schedule property, for which the plaintiff executed an agreement for sale on 20.05.2004, and the same came into the knowledge of the 3rd defendant and her husband. It is further contended that defendants 1 and 2 relocated to Vijayawada due to the threats.
The 1st defendant is the absolute owner of the plaint schedule property, for which the plaintiff executed an agreement for sale on 20.05.2004, and the same came into the knowledge of the 3rd defendant and her husband. It is further contended that defendants 1 and 2 relocated to Vijayawada due to the threats. The 3rd defendant and her husband made a fraudulent misrepresentation to defendants 1 and 2 that there is a requirement for registration of the agreement of sale executed in favour of the plaintiff, and the 1st defendant was forced to sign several papers at the Tenali Sub-Registrar’s office. The Sub-Registrar did not enquire about anything besides the 1st defendant's name. The defendants further contended that the 1st defendant was under the impression that he was executing and registering the sale agreement in favour of the plaintiff. After receipt of the legal notice on 27.10.2004, defendants 1 and 2 learned about the execution of the gift deed. At the time of the execution of the contested gift deed, no documents were delivered to the third defendant. The said property was the self-acquired property of the 1st defendant. The 1st defendant filed a suit in forma pauper P.O.P.No.57 of 2005 against the 3rd defendant on the file of District Judge's Court, Guntur, seeking to declare his title to the plaint schedule property and a perpetual injunction. On 04.03.2005, the 3rd defendant was granted an interim stay from alienating the plaint schedule property. Defendants 1 and 2 were always ready and willing to execute and register a regular sale deed in favour of the plaintiff. The gift deed is null and void abinitio since it was obtained through fraud and misrepresentation. (b) The 3rd defendant filed a written statement denying the material averments in the plaint and asserting that the agreement of sale dt. 20.05.2004 was not true, valid, or binding on her. It is neither admissible in evidence nor legally enforceable. The 1st defendant was not obligated to sell the property or enter a sale agreement. The plaintiff cannot purchase the plaint schedule property. The 1st defendant voluntarily executed the gift deed in favour of the 3rd defendant, which was adequately attested, registered, accepted, and acted upon. The 3rd defendant is in continuous possession and enjoyment of the property on the date of the gift.
The plaintiff cannot purchase the plaint schedule property. The 1st defendant voluntarily executed the gift deed in favour of the 3rd defendant, which was adequately attested, registered, accepted, and acted upon. The 3rd defendant is in continuous possession and enjoyment of the property on the date of the gift. , as a third party, the plaintiff has no right to call the agreement into question or claim that it is not binding on her and prayed the Court to dismiss the suit. 5. Based on the pleadings, the trial court framed the following issues: 1) Whether the plaintiff is entitled to the decree of specific performance of a contract of sale dated 20.05.2004 said to have been executed by the defendants in her favour for Rs.20,10,105/-? 2) Whether the alleged contract of sale dated 20.05.2004 said to have been executed by defendants 1 and 2 in favour of the plaintiff neither true, valid, nor binding on the 3rd defendant? 3) Whether 2nd defendant has any connection with the plaint schedule property? 4) Whether 1st defendant has any necessity to sell the suit schedule property and enter into any agreement of sale? 5) Whether the plaintiff has any capacity to purchase the plaint schedule property? 6) Whether the 1st defendant got executed the gift deed dated 12.08.2004 in the name of the 3rd defendant in respect of the plaint schedule property and whether it is binding on the plaintiff and defendants 1 and 2 or not. 7) Whether the plaintiff has any right to question the validity of the said gift deed dated 12.08.2004? 8) Whether defendants 1 and 2 are always ready and willing to execute a regular sale deed in favour of the plaintiff and get it registered? 9) Whether there is any fraud played by the 3rd defendant and her men made on defendants 1 and 2 to suffer mentally and physically for the impugned gift deed as it is valid under law or not? 10) To what relief? 6. After completion of the trial and hearing the arguments of both sides, the suit was decreed with a direction to defendants 2 to 9 to execute a sale deed in favour of the plaintiff within two months from the date of this Judgment upon receiving Rs.18,00,000/- payable by the plaintiff.
10) To what relief? 6. After completion of the trial and hearing the arguments of both sides, the suit was decreed with a direction to defendants 2 to 9 to execute a sale deed in favour of the plaintiff within two months from the date of this Judgment upon receiving Rs.18,00,000/- payable by the plaintiff. If defendants 2 to 9 fail to execute the registered sale deed, the plaintiff is at liberty to obtain the sale deed through the Court by way of Judgment and decree dated 30.11.2012. Aggrieved by the Judgment and decree, the 2nd defendant has filed the present Appeal. 7. According to the order dated 05.09.2022 in I.A.No.1 of 2021, appellants 2 to 4 were brought on record as Legal Representatives of the Sole appellant/2nd defendant. 8. The learned counsel for the appellants submits the following contentions in support of the Judgment of the trial Judge: (i) The trial court erred in decreeing the suit based on limitation. The document marked as Ex.A.1 is crucial as it pertains to the limitation issue. Despite the plea raised against the institution of the suit, the trial court entertained the document and decreed the suit without considering the limitation aspect. The suit document is barred by limitation. (ii) The trial court should have considered the issue of limitation independently by the recent Judgment of the Hon'ble Apex Court in Noharlal Varma vs District Cooperative Central Bank Limited, (2008) 13 SCC 445). (iii) The trial court erred in decreeing the suit without considering that the plaintiff was never ready to deposit the sale consideration within the stipulated time as prescribed in the suit document before a competent civil court. (iv) The decree and Judgment of the trial court contradict the admission made by the plaintiff/1st respondent in her chief affidavit filed under Order XVIII Rule 4 of C.P.C. The relief sought in the suit for specific performance cannot go against the plaintiff's pleadings. The trial court exceeded the scope of the pleadings in this case. (v) The trial court erred in decreeing the suit without addressing two legal impediments. The first impediment is that the decree is contrary to the plaintiff's pleadings, and the other impediment is that the suit document, the agreement of sale, goes beyond the scope of the contract stipulated under Ex.A1.
(v) The trial court erred in decreeing the suit without addressing two legal impediments. The first impediment is that the decree is contrary to the plaintiff's pleadings, and the other impediment is that the suit document, the agreement of sale, goes beyond the scope of the contract stipulated under Ex.A1. The clear contract specifies that the plaintiff must pay the balance sale consideration of Rs.18,00,000/-within 75 days of Ex.A1, but the trial court failed to consider this aspect in its entirety. (vi) The trial court erred in decreeing the suit despite the prima facie evidence in the plant presentation, which indicates that it was filed on 09.11.2004, beyond the period specified in Ex.A1 dated 20.05.2004. The trial court's decree is considered null and void in law, so the appeal suit was filed. 9. The learned counsel for the appellants also filed written submissions supporting his contentions. 10. Per contra, the learned counsel appearing for the 1st respondent/plaintiff would contend that the trial Court correctly appreciated the facts of the case and came to a correct conclusion. The reasons given by the trial Court do not want any modification. 11. I have heard Sri V.Surendra Reddy, learned counsel for the appellants and Sri N.Sriram Murthy, learned counsel for the respondent No.1/plaintiff. 12. Having regard to the pleadings in the suit, the findings recorded by the Trial Court and in light of the rival contentions and submissions made on either side before this Court, the following points would arise for determination: 1) Is the trial Court justified in granting relief of specific performance of the sale agreement dated 20.05.2004? 2) Is the Judgment passed by the trial Court need any interference? POINT Nos.1 AND 2: 13. The relationship among the defendants is not disputed. The 1st defendant is the father, and the 3rd defendant is the married daughter of the 2nd defendant. 4th defendant is the wife of 1st defendant. Defendants 4 to 9 are brought on record as legal representatives of the 1st defendant consequent to his death per the orders in I.A.No.906 of 2009 dated 22.07.2009. 14. Admittedly, the plaint schedule property is the self-acquired property of the 1st defendant, who acquired it through a registered sale deed dated 04.04.1963. Defendants 1 and 2 have not disputed the execution of the agreement of sale-Ex.A.1 in favour of the plaintiff for the plaint schedule property.
14. Admittedly, the plaint schedule property is the self-acquired property of the 1st defendant, who acquired it through a registered sale deed dated 04.04.1963. Defendants 1 and 2 have not disputed the execution of the agreement of sale-Ex.A.1 in favour of the plaintiff for the plaint schedule property. Although the execution of the sale agreement is not disputed, the plaintiff got examined PW.3-D.Mallikarjuna Rao, an attestor of Ex.A.1 and scribe PW.4-K.Anjaneyulu to establish the transaction. PW.3’s evidence reveals that the son-in-law of the 1st defendant also attested Ex.A.1. The agreement-Ex.A.1 supports the testimonies of PWs.3 and 4 regarding their attestation and scribing of the document. The plaintiff's husband, B.Varaprasad Rao (PW.2), testified that he communicated with defendants 1 and 2, and they eventually agreed to sell the schedule property to his wife for Rs.20,10,105/-. Accordingly, the agreement of sale was executed in favour of the plaintiff. Defendants 1 and 2 have not disputed the role played by PW.2 in the Ex.A.1 transaction. PWs.2 to 4 supported the plaintiff’s claim concerning the execution of the agreement by defendants 1 and 2, the receipt of advance amount by them and all the terms and conditions of Ex.A.1. 15. It is not in dispute that the agreed sale consideration under Ex.A.1 amounted to Rs.20,10,105/-. Defendants 1 and 2 received advance payment of Rs.2,10,105/-from the plaintiff at the time of execution of Ex.A.1. The plaintiff agreed to pay the remaining balance within 75 days from the date of the Ex.A.1. In the event of default, defendants 1 and 2 are entitled to interest at 12% per annum. 16. Defendants 1 and 2 assert that the 3rd defendant and her husband hatched a plan and made fraudulent representation to them leading to execution of gift deed in favour of 3rd defendant instead of registering the agreement of sale in favour of the plaintiff. They also claim that no documents pertaining to the schedule property were handed over to the plaintiff. On the other hand, the 3rd defendant contends that the Ex.A.1 agreement of sale is untrue, invalid and non binding. The plaintiff lacks the capacity to purchase the property in question. The 1st defendant voluntarily executed the gift deed dated 12.08.2004 in favour of the 3rd defendant and the Ex.A.1 agreement of sale was executed to undermine her rights over the schedule property.
The plaintiff lacks the capacity to purchase the property in question. The 1st defendant voluntarily executed the gift deed dated 12.08.2004 in favour of the 3rd defendant and the Ex.A.1 agreement of sale was executed to undermine her rights over the schedule property. The plaintiff has no right to question the validity of the gift deed. 17. Although the 3rd defendant is not a party to the Ex.A.1 agreement, she disputed the testimonies of PWs.1 to 4 regarding the execution of Ex.A.1 agreement and the payment of consideration. However, the 3rd defendant has not placed any cogent evidence supporting her stand. Furthermore, she also did not testify in support of her case. However, her husband, DW.2-S.Venkata Satya Naga Prathap Kumar testified that he was unaware of the agreement of sale in favour of the plaintiff, and had no knowledge of the plaintiff’s financial capacity. Defendants 3 to 9 have not placed any evidence to refute the claims made by plaintiff, defendants 1 and 2, regarding the execution of the Ex.A.1 agreement transaction. 18. As observed by the trial Court at para No.16 of its Judgment that DW.1 admitted his signature as attestor in Ex.A.2/Ex.B2, but he did not admit the contents/recitals of Ex.A.2/Ex.B.2 and original gift deed is also not filed in the Court to prove that the original gift deed was delivered to 3rd defendant. 19. The burden of proof lies heavily on defendants 1 and 2 to demonstrate that they were misled by the 3rd defendant and her husband. As part of the defendants’ case, certified copy of orders in A.S.No.294 of 2008, marked as Ex.B.3 through DW.2 in cross-examination. DW.2 stated in cross-examination that his wife has been missing for the past eight months (as of the date of his testimony). However, Ex.B3 reveals that an Insolvency Petition (I.P) No.66 of 2004 was filed by Tatineni Sadasiva Rao, Karampudi Venkateswara Rao and Chigurupati Sivarama Krishna against the Muvvala Nageswara Rao (1st defendant in the present case) under section 6(1)(b), 7, 9, 13 and 21 of Provincial Insolvency Act. The petition alleged that the 1st defendant executed a gift deed in favour of the 3rd defendant to defraud his creditors and had committed an act of Insolvency. It is further stated that the 1st defendant had no other properties.
The petition alleged that the 1st defendant executed a gift deed in favour of the 3rd defendant to defraud his creditors and had committed an act of Insolvency. It is further stated that the 1st defendant had no other properties. The said I.P. was allowed, declaring the execution of the gift deed in favour of the 3rd defendant (the beneficiary) as an act of Insolvency and the 1st defendant was declared Insolvent. Ex.B.3 also indicates that the Appeal filed by the 3rd defendant against the order and decree in I.P.No.66 of 2004 was dismissed, affirming the declaration of the 1st defendant’s act of insolvency. DW.2 also testified that the appeal filed by the 3rd defendant in A.S.No.294 of 2008 against the order and decree in I.P.No.66 of 2004 was also dismissed. 20. P.Narasimha Rao filed I.P.No.64 of 2004 against defendants 1 and 3, and the said petition was allowed, declaring the execution of gift deed in favour of the 3rd defendant by the 1st defendant as an act of Insolvency, resulting in the 1st defendant being adjudicated as an Insolvent person. An appeal was preferred by the 1st defendant in A.S.No.142 of 2009. 21. The reading of the material on record and also the trial Court’s Judgment shows that Ex.B.2/Ex.A.2 gift deed transaction was declared as an act of Insolvency to defeat the rights of the creditors in I.P.No.66 of 2004 and also in I.P. No.64 of 2004 relating to A.S.No.294 of 2008 and A.S.No.142 of 2009. Thus, it is clear that some of the creditors of the 1st defendant have filed I.P.s by contending that the Ex.A.2/Ex.B2 document was executed to defeat their rights. The competent courts accepted said contention of the creditors. 22. The trial Court has observed at para No.15 of its Judgment that a suit based on the mortgage was also filed against the 1st defendant by one G.Rathaiah in O.S.No.102 of 2004 on the file of IV Additional District Jude, Guntur. It is elicited in the cross examination of DW.2 that the plaint schedule property was sold in Court auction in E.P.No.192 of 2007 in O.S.No.102 of 2004 on the file of III Additional District Court, Guntur. DW.2 deposed that he and his wife filed claim petitions in the E.P. 23.
It is elicited in the cross examination of DW.2 that the plaint schedule property was sold in Court auction in E.P.No.192 of 2007 in O.S.No.102 of 2004 on the file of III Additional District Court, Guntur. DW.2 deposed that he and his wife filed claim petitions in the E.P. 23. The plaintiff filed documents Ex.A.9 (certified copy of the plaint), Ex.A.10 (certified copy of the PW.1’s chief affidavit) and Ex.A.11 (a certified copy of the order in P.O.P.No.57 of 2005 dated 27.11.2005). Ex.A.9 reveals that the 1st defendant filed the plaint seeking declaration of his title to the suit schedule property (the same as the plaint schedule property) based on his claims of possession and enjoyment of the property. The proceedings mentioned in Ex.A.9 are against the 3rd defendant, stating that the plaintiff/1st defendant had executed an agreement of sale (Ex.A.1) on 20.05.2004 in favor of Bommisetty Surya Kumari (the plaintiff in the present case) and had received an advance sale consideration of Rs.2,10,105/-. It further states that the respondent (the 3rd defendant) sent a registered notice to the tenants on 27.10.2004, stating that a gift deed had been executed and registered in her favor on 12.08.2004 regarding the schedule property. The 1st defendant discovered this fraud when he obtained the registration extract of the gift deed. Ex.A.11 shows that after conducting an enquiry, the District Court dismissed P.O.P.No.57 of 2004, ruling that the 1st defendant could pay court fees and did not need to be permitted to sue as a pauper. DW.2 also testified during cross-examination that the 1st defendant filed P.O.P.No.57 of 2004 against the 3rd defendant, which was subsequently dismissed. Ex.A.11 further indicates collusion between the 1st defendant and the 3rd defendant in presenting the original of Ex.A.2/Ex.B.2. 24. After evaluating the evidence adduced, the trial Court concluded that the misrepresentation by the 3rd defendant's husband was manifest. Initially, he claimed that his wife was missing and her whereabouts were unknown. However, it was surprising that the 3rd defendant had been actively involved in various legal proceedings since 2004 but had not granted power of attorney to her husband to handle the litigation on her behalf. The court also noted that all these transactions indicated that DW.2 was the driving force behind the litigation and was more interested in the property than the well-being of his wife. 25.
The court also noted that all these transactions indicated that DW.2 was the driving force behind the litigation and was more interested in the property than the well-being of his wife. 25. In this connection, a reference is to be made to sections 28 (1) (2) (6) and (7) of the Provincial Insolvency Act, which read as follows: 28. (1) On the making of an order of adjudication, the Effect of an insolvent shall aid to the utmost of his power in the order of adjudication the realization of his property and the distribution of the proceeds among his creditors. (2) On the making of an order of adjudication, the whole of the property of the insolvent shall vest in the Court or in a receiver as hereinafter provided and shall become divisible among the creditors, and thereafter, except as provided by this Act, no creditor to whom the insolvent is indebted in respect of any debt provable under this Act shall during the pendency of the insolvency proceedings have any remedy against the property of the insolvent in respect of the debt, or " commence any suit or other legal proceeding, except with the leave of the Court and on such terms as the Court may impose xxxxxx (6) Nothing in this section shall affect the power of any secured creditor to realize or otherwise deal with his security in the same manner as he would have been entitled to realize or deal with it if this section had not been passed. (7) An order of adjudication shall relate back to and take effect from the date of the presentation of the petition on which it is made. 26. The intendment and purpose of section 28(2) are broad to make the entire estate of the insolvent vest in the Court or a Receiver the moment an order of adjudication is made and to make it available for distribution among the body of creditors. 27. After an order of adjudication is made, the property of the insolvent vests in the Official Assignee or Receiver, and it has to be administered in the manner prescribed by the insolvency law. The insolvency law prescribes the mode in which creditors must prove their claims. They must therefore proceed to realize their claims in the manner prescribed by that law. 28.
The insolvency law prescribes the mode in which creditors must prove their claims. They must therefore proceed to realize their claims in the manner prescribed by that law. 28. The remedies which his creditors had against his property before he was adjudged insolvent are taken away. In substitution for those remedies, the creditors acquire a right to share equally and proportionately in the distribution of the insolvent’s assets. 29. Section 28(2) of the Provincial Insolvency Act is sufficiently wide to cover not only suits concerning debts provable in Insolvency but also all legal proceedings taken by a creditor relating to Insolvency. 30. Just as the Court has the power before making an order of adjudication to inquire into the consideration of the petitioning creditor's debt, it has the power to inquire into the consideration of debts for proof. For this purpose the Insolvency Court may go behind a judgment and will inquire into the consideration for the debt even if the debt was admitted by the insolvent in his statement of affairs or scheme and even where he has consented to the Judgment. 31. Though the material placed vide Ex.B.3 shows that an order of adjudication is made, it does not show the specification of the period within which the debtor shall apply for his discharge. No material is placed to show the publication of the order as contemplated under section 30 of the Provincial Insolvency Act that notice of an order of adjudication stating the name, address and description of the insolvent, the date of the adjudication, the period within which the debtor shall apply for his discharge, and the Court by which the adjudication is made shall be published in the official gazette and such other manner as may be prescribed. 32. The record placed does not show that the Court, at the time of order of adjudication or at any time afterwards, appointed the receiver for the property of the insolvent and thereupon schedule property vested in the receiver. On the other hand, the material on record suggested that even after passing an adjudication order, the 3rd defendant has dealt with the property as she likes despite the pendency of this Appeal. 33. The material on record shows that the defendants executed the original Ex.B.2 document only to defeat the rights of the third parties.
On the other hand, the material on record suggested that even after passing an adjudication order, the 3rd defendant has dealt with the property as she likes despite the pendency of this Appeal. 33. The material on record shows that the defendants executed the original Ex.B.2 document only to defeat the rights of the third parties. The 3rd defendant failed to adduce evidence to establish that Ex.A.1 transaction held only to defeat her rights over the schedule property. 34. The learned appellants counsel contends that the trial Court erred in decreeing the suit as it is established from the record that the plaintiff was not interested to deposit the balance of sale consideration before the Court. In the plaint also, he claimed an alternative relief of refund of the earnest money with damages. The plaintiff in her chief affidavit also stated that if for any reason, the Court thinks granting of damages is sufficient, she requested to pass decree for alternative relief of Rs.10,00,000/-including refund of earnest money of Rs.2,10,105/-as damages. He further contends that the trial Court went beyond the scope and limit of pleadings and passed a decree for specific performance of the agreement of sale. The said admissions are only admissions made under Order 12 Rule 6 of C.P.C. The appellants are ready to accept the alternative relief as sought by the plaintiff in her pleadings. 35. In P.C.Varghese v. Devaki Amma Balambika Devi and Others, A.I.R. 2006 SUPREME COURT 145, the Hon’ble Supreme Court held that an alternative plea of refund of the earnest amount and damage could not be a bar to claiming a decree for the specific performance of a contract. 36. After careful consideration, this Court finds no force in the said submission. Simply because the plaintiff has claimed alternative relief, it cannot be held that the plaintiff is not entitled to the primary relief of specific performance. The grant of alternative relief will arise if the plaintiff's claim for specific performance is refused. When the plaintiff asks for alternative relief, there is no legal presumption or assumption that she gives up the primary relief of specific performance of the contract. 37.
The grant of alternative relief will arise if the plaintiff's claim for specific performance is refused. When the plaintiff asks for alternative relief, there is no legal presumption or assumption that she gives up the primary relief of specific performance of the contract. 37. The appellants counsel further contends that the Division Bench of this Court is pleased to pass an interim order on 03.01.2013 in A.S.M.P.No.3203 of 2012 directing the petitioner/2nd defendant to deposit the suit costs to the credit of the suit within six weeks, on such deposit, the 1st respondent/plaintiff is permitted to withdraw the same without furnishing any security. The Division Bench of this Court in A.S.M.P.No.351 of 2013 filed by the respondent/ plaintiff, refused to vacate the stay order, which was granted at the instance of the 2nd defendant by observing that: Since the stay was granted at the instance of 2nd defendant depositing the suit costs within six weeks, they are not inclined to go into the merits of the case with regard to the allegations and counter-allegations as to whether the plaintiff was ready at all material points of time and willing to perform the contract by having liquid cash of Rs.18,00,000/-and whether the decree of specific performance is valid or not and all these matters have to be gone into the main Appeal. 38. The learned counsel for the appellants further contends that the said order got finality, the plaintiff never challenged it and it appeared to be passed by section 16(c) of Specific Relief Act. After considering the submission, this Court views it as untenable. It is un-understandable how the said direction given in the Interlocutory order can be taken as an order against the plaintiff’s case. The Divisional Bench of this Court has made it clear that it is inclined to consider all the material points in the main Appeal. It is not the appellants’ case that the plaintiff has not deposited the balance amount despite the direction given by the Court. The law does not mandate to deposit of the balance of sale consideration as and when the suit for specific performance is filed. 39. In U.N. Krishna Murthy (since deceased) Thr. Lrs Vs.
It is not the appellants’ case that the plaintiff has not deposited the balance amount despite the direction given by the Court. The law does not mandate to deposit of the balance of sale consideration as and when the suit for specific performance is filed. 39. In U.N. Krishna Murthy (since deceased) Thr. Lrs Vs. A.M.Krishnamurthy, 2022 Live law SC 588 in Civil Appeal No.4703 of 2022, the Apex Court held that : Section 16(c) of the Specific Relief Act, 1963, bars the relief of specific performance of a contract in favour of a person who fails to aver and prove his readiness and willingness to perform his part of the contract. Given Explanation (i) to clause (c) of Section 16, it may not be essential for the plaintiff to tender money to the defendant or to deposit money in Court, except when so directed by the Court, to prove readiness and willingness to perform the essential terms of a contract, which involves payment of money. However, Explanation (ii) says the plaintiff must aver performance or readiness and willingness to perform the contract according to its true construction. 40. The appellants counsel failed to convince this Court how the orders passed in A.S.M.P.No.351 of 2013, and A.S.M.P.No.3203 of 2012 adversely affect the plaintiff's case to challenge the same in the Apex Court. 41. The appellants counsel contends in the grounds of Appeal that the trial Court erred in decreeing the suit without considering the limitation aspect; since Ex.A.1 document goes to the root of the matter on the ground of limitation, the trial Court ought not to have decreed the suit. 42. Admittedly, Ex.A.1 agreement was executed on 28.05.2004, and the suit itself was filed in the year 2004. In Rathnavathi and another Vs. Kavita Ganashamdas, (2015) 5 SCC 223 , the Hon’ble Apex Court held that: xxxxx Article 54 of the Limitation Act which prescribes the period of limitation for filing a suit for specific performance reads as under: “54. For specific performance of a contract.
In Rathnavathi and another Vs. Kavita Ganashamdas, (2015) 5 SCC 223 , the Hon’ble Apex Court held that: xxxxx Article 54 of the Limitation Act which prescribes the period of limitation for filing a suit for specific performance reads as under: “54. For specific performance of a contract. Three years The date fixed for the performance, or, if no such date is fixed when the plaintiff has notice that performance is refused." A mere reading of Article 54 of the Limitation Act would show that if the date is fixed for the performance of the agreement, then non-compliance with the agreement on the date would give a cause of action to file suit for specific performance within three years from the date so fixed. However, when no such date is fixed, a limitation of three years to file a suit for specific performance would begin when the plaintiff has noticed that the defendant has refused the performance of the agreement. 43. When the suit itself is filed within one year of the agreement of sale, the appellants failed to explain the ground taken in the Appeal regarding the plea of limitation. As such, this Court finds that the contention raised by the appellants is untenable. 44. Even otherwise, time is not the essence of the contract as it is expressly incorporated in the agreement to pay interest at 12% per annum in case of default made by the plaintiff in paying the balance amount. 45. The learned counsel for the 1st respondent/plaintiff relied on the decision of this Court in Mandava Lokeswara Rao and another Vs. Devineni Vijaya Lakshmi, 1999 (4) A.L.T. 49 , wherein this Court held that: xxxxxx If time were to be the essence of the contract, there would not have been a recital that in case the plaintiff fails to get the sale deed registered even after the defendant obtains the urban land ceiling certificate, he must pay interest for the balance amount at the rate of 18% p.a. The allegation made by the defendant that the plaintiff was never ready and willing to perform his part of the contract, namely to pay the balance sale consideration and get the sale deed registered, is quite incorrect.
When no time is fixed, it is incorrect to contend that the plaintiff is not entitled to get the sale deed registered on the allegation that he did not fulfil the same within the time granted. xxxxxx 46. The appellants counsel contends that the plaintiff failed to establish that she is ready and willing to perform her part of the contract. He further contends that the plaintiff has to prove that she has the money or has alternatively made necessary arrangements to get the money, and the continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. It is the contention of the plaintiff/1st respondent that after execution of the Ex.A.1 agreement, defendants 1 and 2 created legal hurdles, they executed Ex.A.2/Ex.B.2 gift deed in favour of 3rd defendant, and they also entered into mortgage transactions and brought the properties for sale. It is the contention of the plaintiff that there is no delay or inaction on the part of the plaintiff in filing the suit. She has questioned those transactions in appropriate proceedings. 47. In Chand Ranni (Smt) (Dead) By L.R.s Vs. Kamal Rani (Smt) (Dead) by L.R.s, (1993) 1 SCC 519 , wherein the Hon’ble Apex Court held that: 25. From an analysis of the above case law, it is clear that in the case of the sale of immovable property, there is no presumption that time is the essence of the contract. Even if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the conditions are: 1. From the express terms of the contract. 2. from the nature of the property; and 3. from the surrounding circumstances, for example, the object of making the contract. 48. In P.D’Souza Vs. Shondrilo Naidu, (2004) 6 SCC 649 , wherein the Apex Court held that: 19. It is indisputable that in a suit for the specific performance of a contract, the plaintiff must establish his readiness and willingness to perform his part of the contract. Whether the plaintiff discharged onus or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf. 20.
It is indisputable that in a suit for the specific performance of a contract, the plaintiff must establish his readiness and willingness to perform his part of the contract. Whether the plaintiff discharged onus or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf. 20. The High Court upon consideration of the materials on record, had arrived at a finding t that the plaintiffs had all along been ready and willing to perform their part of the contract. The said findings are binding upon this Court as it had not been shown that while arriving at the said finding the High Court had considered any irrelevant fact or failed to consider any relevant fact. 21. It is not a case where the plaintiff had not made the requisite averments in the plaint. The readiness and willingness on the part of the plaintiff to perform his part of the contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale. The plaintiff was a tenant of the defendant. 49. In Nathulal Vs. Phoolchand, A.I.R. 1970 SC 546, the Hon’ble Apex Court observed that: 6. ……..To prove himself ready and willing, a purchaser has not necessarily have to produce the money or to vouch for a concluded scheme for financing the transaction: Bank of India Ltd. & Ors. v. Jamsetji A. H. Chinoy and Messrs. Chinoy and Company, A.I.R. 1950 P.C. 90 at p.96. …………….. 11. In considering whether a person is willing to perform his part of the contract, the sequence in which the obligations under a contract are to be performed must be taken into account. ……………... If, therefore, under the terms of the contract, the obligations of the parties have to be performed in a certain sequence, one of the parties to the contract cannot require compliance with the obligations by the other party without, in the first instance performing his part of the contract which in the sequence of obligations is performable by him earlier. 50. In light of the settled legal position, this Court examines the facts of the case, admittedly, Ex.A.1 agreement transaction held on 20.05.2005.
50. In light of the settled legal position, this Court examines the facts of the case, admittedly, Ex.A.1 agreement transaction held on 20.05.2005. The plaintiff published Ex.A.8 in the Eenadu daily edition on 22.06.2004 notifying the agreement of sale (Ex.A.1) and inviting objections from interested parties. Pulapati Rama Devi, the daughter of the 1st defendant, issued a notice claiming a 1/6th share in the scheduled property as joint family property. The agreement (Ex.A.1) includes a provision, in case the plaintiff desires the defendants 1 and 2 have undertaken to get the sale deed by the 1st defendant's wife and daughters, along with defendants 1 and 2, will sign the sale deed. The plaint also states that the plaintiff is ready with the remaining sale consideration and published this fact in the Eenadu daily. Additionally, the plaintiff sent a legal notice dated 07.09.2004 to defendants 1 and 2, requesting them to execute the registered sale deed in her favor. The plaintiff asserts that defendants 1 and 2 received the notices but did not respond. It is admitted that the 3rd defendant lodged a caveat before the Subordinate Court, Tenali, alleging that the 1st defendant executed a gift deed regarding the schedule property and that the plaintiff intended to file a false suit against her. Considering these facts, it can be concluded that the plaintiff has demonstrated her readiness and willingness to fulfill her contractual obligations. The defendants, having created legal obstacles, cannot contend that the plaintiff failed to perform her part of the contract within the stipulated time. The plaintiff promptly filed the suit, demonstrating her keenness and readiness. Notably, she published the agreement's existence in a newspaper and sent legal notices to defendants 1 and 2, stating her readiness to pay the remaining consideration. Based on the material on record, the court finds that the plaintiff consistently demonstrated her readiness and willingness to fulfill her part of the contract. 51. As seen from the written submissions made on behalf of the both sides, both parties have referred the proceedings in W.P.No.9759 of 2016 and W.P.No.20454 of 2020 in support of their respective contentions and the 1st respondent/plaintiff’s counsel filed copies of the affidavits in the Writ Petitions and orders in those proceedings.
51. As seen from the written submissions made on behalf of the both sides, both parties have referred the proceedings in W.P.No.9759 of 2016 and W.P.No.20454 of 2020 in support of their respective contentions and the 1st respondent/plaintiff’s counsel filed copies of the affidavits in the Writ Petitions and orders in those proceedings. The order in W.P.No.9759 of 2016 which is enclosed in the written submissions made on 10.03.2023, revealing that the plaintiff filed a writ petition against defendants 2 and 3, the Authorized Officer, Bank of India, Tenali Branch (1st respondent), The Bank of India, Tenali Branch (2nd respondent), and Messers. Sri Sujana Traders, Tenali, and others. The Common High Court for the states of Telangana and Andhra Pradesh at Hyderabad, issued an order staying the sale of a property in relation to an e-auction dated 06.04.2016, involving 187 sq. yards of house site with an R.C.C., building situated in T.S. No.283, Door No.16-18-51, Tenali and Guntur District. This property corresponds to the scheduled property in the present case. The order in W.P.No.9759 of 2016 indicates that the High Court concluded that the respondents (defendants 1 and 2) were not entitled to sell the property based on a mortgage, as criminal proceedings had been instituted, and it was established that the mortgager lacked valid title. The order also refers that the petitioner (the plaintiff), a bona fide purchaser from the original owner Muvvala Nageswara Rao, filed O.S.No.288 of 2010 against respondents 6 and 7, Sadhu Naga Venkata Lakshmi Sujana Devi (the 3rd defendant herein) and Muvvala Suryanarayana (the 2nd defendant herein), and obtained a decree for specific performance of the agreement of sale on 18.12.2015 and the court declared that the purported gift deed obtained from the original owner by the mortgage was fraudulent and not binding on the petitioner. 52. It is argued on behalf of the appellants that the plaintiff filed W.P.No.20454 of 2020 against the vendor Somaraju Subramanyam of the 3rd defendant, and the matter is pending consideration. The appellants have submitted an affidavit from the Writ Petition in W.P.No.20454 of 2020 filed in this Court and the petition refers to the proceedings in O.S.No.117 of 2004 and the ongoing appeal. It is alleged that respondents 3 to 5 obtained a collusive document in the form of a sale deed dated 31.10.2018.
The appellants have submitted an affidavit from the Writ Petition in W.P.No.20454 of 2020 filed in this Court and the petition refers to the proceedings in O.S.No.117 of 2004 and the ongoing appeal. It is alleged that respondents 3 to 5 obtained a collusive document in the form of a sale deed dated 31.10.2018. It is alleged that the appellant in A.S.No.1080 of 2012 and his father employed one Gatta Rathaiah and colluded with him to file O.S.No.102 of 2004 in the IV Additional District Judge, Guntur, based on a mortgage transaction, and obtained a collusive decree. It is also alleged that the plaintiff filed O.S.No.288 of 2010 in the III Additional District Judge, Guntur, to declare the declaration made in O.S.No.102 of 2004 as null and void and to annul the sale in E.P.No.192 of 2006. This suit was decreed on 18.12.2015, declaring the decree in O.S.No.102 of 2004 dated 22.02.2005 on the file of the IV Additional District Judge, Guntur, and the final decree in I.A.No.1292 of 2005 in O.S. No.102 of 2004 as invalid and not binding on the suit property. 53. The appellants have submitted a copy of the order in W.P.No.20454 of 2020, in which this Court restrained the 5th respondent from alienating the land or building measuring 187 sq. yards in any manner. 54. The counsel for the appellants submits that the vendor of the 3rd defendant is willing to pay the alternative relief as prayed for, which amounts to Rs.10,00,000/-along with earnest money of Rs.2,10,105/-or alternative relief. The appellants and the 1st respondent have relied on copies of the orders in W.P.No.9759 of 2016, the affidavit of the interim order in W.P.No.20454 of 2020, and the order in A.S.No.353 of 2013, which was filed against the judgment in O.S.No.117 of 2004 by the 3rd defendant. Although the authenticity and genuineness of these copies have not been questioned, they were not formally marked as exhibits in the proceedings. However, it is noted that these documents are copies of orders issued by this Court, and their genuineness has not been disputed, despite being served to the opposing party. The materials on record establish that the competent court declared the gift deed executed by the 1st defendant in favor of the 3rd defendant as fraudulent and not binding on the plaintiff. 55.
The materials on record establish that the competent court declared the gift deed executed by the 1st defendant in favor of the 3rd defendant as fraudulent and not binding on the plaintiff. 55. The material on record shows that 3rd defendant, with the help of her husband, has created several transactions regarding the subject matter of the litigation to create legal hurdles. The plaintiff has also not brought to the notice of this Court about the developments that have taken place in pursuance of the sale transactions held by 3rd defendant regarding the schedule property. Because the decreeing of the suit would lead to further complications and the purchasers of the scheduled property during the pendency of the suit will be forced to enter upon new litigation, the Court ought not to refuse specific performance. 56. In a suit for specific performance, the subsequent transferees during the pendency of the suit are not required to be brought in the suit by the plaintiff since any decree is passed; it will automatically bind the subsequent transferees. It is for the alleged subsequent transferee to come forward to the Court and establish how the decree passed by the Court is not binding on him. It is neither for the Court nor the plaintiff to bring them on record. It is settled law that an appeal is a continuation of the suit proceedings. 57. The learned counsel for the 1st respondent/plaintiff contends that the 3rd defendant has sold the scheduled property after filing the suit, she has no right to sell the property, and the said sale transaction does not bind the plaintiff. Even defendants 1 and 2 created hurdles for the plaintiff by executing a mortgage deed in favour of their close relative, and the property was brought to the sale in court action. The sale was set aside, and those factors could not bring on record as the said transactions are subsequent developments. 58. The learned counsel for the 1st respondent/plaintiff relied on the decision of the Hon’ble Apex Court in Mrs Umadevi Nambiar V. Thamarasseri Roman Catholic Diocese Rep. By Its Procurator Devssia’s Son Rev.Father Joseph Kappil, A.I.R. 2022 SUPREME COURT 1640case as referred supra, where it held that: It is a fundamental principle of the law of transfer of property that “no one can confer a better title than what he himself has” (Nemo datquod non habet).
By Its Procurator Devssia’s Son Rev.Father Joseph Kappil, A.I.R. 2022 SUPREME COURT 1640case as referred supra, where it held that: It is a fundamental principle of the law of transfer of property that “no one can confer a better title than what he himself has” (Nemo datquod non habet). The appellant's sister did not have the power to sell the property to the vendors of the respondent. Therefore, the vendors of the respondent could not have derived any valid title to the property. If the vendors of the respondent themselves did not have any title, they had nothing to convey to the respondent except perhaps the litigation. 59. The learned counsel for the 1st respondent/plaintiff relied on the decision of the Hon’ble Apex Court in P.Ramasubbamma V. V.Vijayalakshmi and Ors., A.I.R. 2022 SUPREME COURT 1793 wherein it held that: xxxxxxx It is submitted that in a suit for specific performance, it is not necessary for the agreement holder to seek cancellation of the sale deed executed in favour of a subsequent purchaser. It is sufficient to implead the subsequent purchaser in the suit and seek relief of specific performance against the original owner and also seek direction to the subsequent purchaser to join in the execution of the sale deed in order to completely convey title to the agreement holder. Reliance is placed upon the decisions of this Court in the cases of Lala Durga Parsad and Anr. Vs. Lala Deep Chand and Ors., 1954 SCR 360 : A.I.R. 1954 SC 75, Soni Lalji Jetha & Ors. Vs. Soni Kalidas Devchand&Ors., (1967) 1 SCR 873 : AIR 1967 SC 978 , R.C. Chandiok&Anr. Vs. Chuni Lal Sabharwal & Ors. (1970) 3 SCC 140 : AIR 1971 SC 1238 , Dwarka Prasad Singh & Ors. Vs. Harikant Prasad Singh & Ors., (1973) 1 SCC 179 and Rathnavathi&Anr. Vs. Kavitha Ganashamdas, (2015) 5 SCC 223 . xxxxxxxx In light of the aforesaid factual aspects and the findings recorded by the learned Trial Court, the decision of this Court in the case of Lala Durga Prasad & Ors. (supra) is required to be referred to. In paragraph 42, it is observed and held as under: “42.
Vs. Kavitha Ganashamdas, (2015) 5 SCC 223 . xxxxxxxx In light of the aforesaid factual aspects and the findings recorded by the learned Trial Court, the decision of this Court in the case of Lala Durga Prasad & Ors. (supra) is required to be referred to. In paragraph 42, it is observed and held as under: “42. In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in Kafiladdin v. Samiraddin [A.I.R. 1931 Cal 67] and appears to be the English practice. See Fry on Specific Performance, 6th Edn., p. 90, para 207; also Potter v. Sanders [67 ER 1057]. We direct accordingly.” The aforesaid decision has been subsequently referred to and followed by this Court in the subsequent decision in the case of Rathnavathi&Anr. (supra). 60. In the case of Kurra Murali Krishna Yadav and others Vs. Sri Lakshmi Rama Cooperative Building Society Limited and others in C.R.P.Nos.1790, 1791, 2771, 2900 of 2019 & C.R.P.Nos.1282 and 1293 of 2021 on the file of this Court, a contention was raised on behalf of the D.Hr basing on the Judgments of the Hon’ble Supreme Court that wherever there is pendent lite alienation of property, the proper course for the Courts would be to direct both the original vendor and the subsequent purchasers to be made party to the sale deed that has to be executed in favour of a successful plaintiff in a suit for specific performance. After considering the submissions made on behalf of both sides concerning the Judgments of the Hon’ble Supreme Court, the Division Bench of this Court held that: In suits for specific performance, the correct course of action is to join the subsequent purchasers also in the sale deeds that need to be executed.
After considering the submissions made on behalf of both sides concerning the Judgments of the Hon’ble Supreme Court, the Division Bench of this Court held that: In suits for specific performance, the correct course of action is to join the subsequent purchasers also in the sale deeds that need to be executed. The Hon’ble Supreme Court had specifically directed this course of action where the subsequent purchasers were not parties to the suit and further observed that the presence of the purchasers in the sale deeds is essential to the completion of the process and in the absence of any specific provision for impleading the purchasers, the decree holder can always rely upon the provisions of section 151 and seek invocation of the inherent power of the Court to do justice. 61. The plaintiff has also filed a copy of the appeal grounds in A.S. No.353 of 2013, which shows that the 3rd defendant preferred the Appeal against the Judgment in O.S.No.117 of 2004 against the parties shown in O.S.No.117 of 2004. It also shows that 3rd defendant herein filed an appeal against the impugned Judgment. She also filed a copy of the Judgment in A.S.No.353 of 2013, which shows that the Appeal is dismissed as withdrawn. 62. Based on the depositions of PWs.1 to 4 and the written statement filed on behalf of the defendants, it is evident that the 3rd defendant is the primary party contesting the suit. She has produced evidence to support her claim, particularly to establish the execution of the gift deed. It is important to note that the appeal has been filed by the 2nd defendant, who is aggrieved by the judgment and decree passed by the trial court. The 2nd defendant admitted the execution of the Ex.A.1 agreement and receiving the advance amount as alleged in the plaint. During the cross-examination, the 2nd defendant (DW.1) stated that they advised the plaintiff to publish a newspaper notice if she had any doubts regarding the property's title or debts. The plaintiff complied with this suggestion and issued a publication. While several contentions have been raised regarding the plaintiff's financial capacity, DW.1 testified that he did not inquire about or have knowledge of the plaintiff's financial soundness or that of her family members.
The plaintiff complied with this suggestion and issued a publication. While several contentions have been raised regarding the plaintiff's financial capacity, DW.1 testified that he did not inquire about or have knowledge of the plaintiff's financial soundness or that of her family members. It is somewhat difficult to accept this version, as it is expected that inquiries about financial capacity would be made before entering into a sale transaction. DW.1 also stated that he did not know if the plaintiff was prepared with the remaining sale consideration, registration charges, and stamp duty, and her request for a registered sale deed was directed to his father and himself. During the cross-examination of PW.1, nothing is elicited to discredit her testimony regarding her financial capacity or her readiness and willingness to fulfill her part of the contract. It was revealed in the cross-examination of DW.1 that Ex.A.1 indicated that there were no mortgages against the plaint schedule property. However, DW.1 stated that equitable mortgages had been created in favor of Gatta Rathaiah, his wife's sister. He also mentioned that Gatta Rathaiah filed a suit against him and his father on 04.11.2004, and he admitted that they owed amounts to Gatta Rathaiah in O.S.No.102 of 2004 in the IV Additional District Judge Guntur's court. DW.1's evidence indicates that they did not disclose the mortgage transaction to the plaintiff. According to his testimony, he had no communication with the 3rd defendant and her husband since the date of his marriage. As per DW.2's testimony, he had a good relationship with the 2nd defendant only for a brief period after his marriage, and by 20.05.2004 (the date of the sale agreement), he had a cordial relationship with defendants 1 and 2. DW.1 stated that his father and son-in-law Pratap were present at the Sub-registrar's office, but he did not inquire with the Sub-registrar about the registration of the gift deed. In the cross-examination, DW.1 clearly stated that he had no objection to a decree being passed in favor of the plaintiff. Against this stance in the cross-examination, it appears that he filed this appeal, although the other defendants in the suit, including the 3rd defendant, did not appeal. However, it was mentioned during the hearing that the 3rd defendant initially filed an appeal but later withdrew it, indicating that she does not contest the decree passed in favor of the plaintiff. 63.
However, it was mentioned during the hearing that the 3rd defendant initially filed an appeal but later withdrew it, indicating that she does not contest the decree passed in favor of the plaintiff. 63. As previously observed, defendants 1 and 2 in the suit maintain that the 3rd defendant executed the gift deed under the pretense that it was necessary to register the sale agreement executed in favor of the plaintiff. This position indicates that defendants 1 and 2 were willing to execute the sale deed in favor of the plaintiff. In the written statement, the 2nd defendant explicitly stated at paragraph No.7 that defendants 1 and 2 stand by the sale agreement with the plaintiff and are willing to execute a regular sale deed upon receiving the remaining sale consideration. Given this explicit statement in the written statement, there doesn't seem to be a justifiable reason for the 2nd defendant to file this appeal. 64. As per the records, DW.2 provided evidence on behalf of the 3rd defendant. During cross-examination, he stated that he had no knowledge of the plaintiff's financial soundness or the circumstances and purpose for which the property was agreed to be sold by defendants 1 and 2 to the plaintiff. He also claimed ignorance about the plaintiff's request to execute the sale deed and her readiness and willingness to fulfill the terms of the agreement. Considering his lack of knowledge about these important aspects, it is somewhat perplexing how the 3rd defendant contests the suit and questions the plaintiff's readiness and willingness to fulfill her part of the contract. 65. The records establish that Gatta Ramaiah, who filed a suit (O.S.No.102 of 2004) based on the mortgage deed and obtained a decree against the defendants, and that decree is set aside. It is also mentioned in the written arguments that the 3rd defendant and her husband mortgaged the property mentioned in the suit schedule to the Bank of India, which seized the property under the SARFAESI Act. The plaintiff filed W.P.No.9759 of 2016 and obtained an interim direction, and the vendor, Somaraju Subramanyam, paid off the Bank of India's loan of Rs.40,00,000/-and cleared the title through negotiations. Despite purchasing the property, Somaraju Subramanyam did not approach the Court. The written arguments submitted on behalf of the appellants’ state that the plaintiff also filed W.P.No.20454 of 2020 and obtained an order against the vendor, Somaraju Subramanyam.
Despite purchasing the property, Somaraju Subramanyam did not approach the Court. The written arguments submitted on behalf of the appellants’ state that the plaintiff also filed W.P.No.20454 of 2020 and obtained an order against the vendor, Somaraju Subramanyam. This indicates that Somaraju Subramanyam was aware of the suit proceedings but did not take steps to join the case to demonstrate his bona fides. Once it is established from the records that the gift deed transaction in favor of the 3rd defendant was declared fraudulent and cannot convey better title to the vendors of the 3rd defendant, and since the 3rd defendant did not pursue the appeal in the suit, she should not create third-party interests in the property as the decree passed in O.S.No.117 of 2004 is binding on her. 66. The learned counsel for the 1st respondent/plaintiff contends that the trial Court recorded a specific finding that the defendant/vendor admitted the execution of the agreement to sell in favour of the plaintiff by accepting advance consideration and, despite the same, being aware of the sale agreement, executed gift deed in favour of his grand-daughter (3rd defendant). In a similar set of facts of the case, the Hon’ble Apex Court in P.Ramasubbamma Vs. V.Vijayalakshmi & Ors., 2022 (2) DNJ 625 , observed that: Once the execution of the agreement to sell and the payment/receipt of advance substantial sale consideration was admitted by the vendor, nothing further was required to be proved by the plaintiff–vendee. Therefore, as such, the learned Trial Court rightly decreed the suit for the specific performance of an agreement to sell. The High Court was not required to go into the aspect of the execution of the agreement to sell and the payment/receipt of substantial advance sale consideration once the vendor had specifically admitted the execution of the agreement to sell and receipt of the advance sale consideration; thereafter no further evidence and/or proof was required. xxxxx xxxx that defendant No.2 was in the knowledge of the agreement to sell.
xxxxx xxxx that defendant No.2 was in the knowledge of the agreement to sell. Despite the same, he sold the same in favour of defendants Nos.3 and 4, who are his sisters-in-law, and that too the sale deeds were found to be nominal sale deeds, the learned Trial Court as such rightly decreed the suit for specific performance and also rightly declared that sale deeds dated 03.05.2010 executed by original defendant No.2 in favour of defendants No.3 and 4 are not binding upon the plaintiff and defendant No.1. xxxxxx 67. The counsel for the 1st respondent/plaintiff further relied on the decision of the Hon’ble Apex Court in between Zarina Siddiqui Vs A.Ramalingam and R.Amarnathan, (2015) 1 SCC 705 , wherein it is held that: The equitable discretion to grant or not to grant relief for specific performance also depends upon the parties' conduct. The necessary ingredient has to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the plaintiff. At the same time, if the defendant does not come with clean hands and suppresses material facts and evidence and misleads the Court, then such discretion should not be exercised by refusing to grant specific performance. 68. Based on the material on record and the fact that defendants 1 and 2 have not disputed the plaintiff's case, it is clear that they were unable to execute the sale deed in favor of the plaintiff due to the fraudulent actions of the 3rd defendant. The transaction in favor of the 3rd defendant has been established as fraudulent, and she has withdrawn her appeal. Therefore, the appellant/2nd defendant is not supposed to raise the contentions raised by the 3rd defendant in this proceeding, especially considering that he has stated that he has no objection to executing the decree and the other defendants have not filed an appeal against the judgment. 69. The trial court judgment has directed the defendants 2 to 9 to execute the sale deed in favour of the plaintiff upon receiving Rs.18,00,000/- payable by the plaintiff. 70. Despite the court declaring the Ex.A.2/Ex.B.2 gift transaction as fraudulent, the 3rd defendant and her husband went on to make several sale transactions and received amounts from their vendors. During the pendency of the proceedings, the 1st defendant, who had rights over the schedule property, passed away. The plaintiff purchased the property from him.
70. Despite the court declaring the Ex.A.2/Ex.B.2 gift transaction as fraudulent, the 3rd defendant and her husband went on to make several sale transactions and received amounts from their vendors. During the pendency of the proceedings, the 1st defendant, who had rights over the schedule property, passed away. The plaintiff purchased the property from him. Based on the fraudulent transaction, the 3rd defendant and her husband sold the schedule property. Despite being aware of the appeal proceedings, the subsequent purchasers have not come forward. In light of these circumstances, this court is inclined to direct the trial court to deposit all the amounts paid by the plaintiff, as ordered by the trial court and this court, in a Fixed Deposit in a Nationalized Bank. These amounts shall be paid to the rightful persons, but only after the delivery of the scheduled property in accordance with the law. It is the responsibility of the plaintiff to take steps to include the subsequent purchasers along with the defendants in the conveyance to ensure the transfer of title, as stated in the judgment. 71. The trial Court did not award interest on the advance amount. However, it is mentioned in the appellants’ written submissions that the plaintiff deposited the balance sale consideration of Rs.18,00,000/-only after the decree. Although, no supporting material has been placed in support of the said contention. As per the terms of the sale agreement, in case of default of payment of the balance sale consideration, the plaintiff agreed to pay the interest at 12% per annum. Therefore, the trial Court should have directed the plaintiff to pay interest at 12% per annum on Rs.18,00,000/-from the date of agreement until the date of depositing such amount. 72. After careful consideration, it is concluded that the trial court properly evaluated the evidence and correctly ordered specific performance of the agreement. There are no justifiable reasons for this court to arrive at a different conclusion. The findings of the trial court are accurate, and there is no need for interference except for awarding interest on the advance amount, as stated. Accordingly, the points raised in the appeal are answered. 73. As a result, i) The Appeal is allowed in part.
There are no justifiable reasons for this court to arrive at a different conclusion. The findings of the trial court are accurate, and there is no need for interference except for awarding interest on the advance amount, as stated. Accordingly, the points raised in the appeal are answered. 73. As a result, i) The Appeal is allowed in part. The Judgment and decree dated dt.30.11.2012 passed in O.S.No.117 of 2004 by the XI Additional District Judge, Fast Track Court, Guntur at Tenali, is confirmed to the relief of specific performance with costs, and ii) The Judgment and decree dated 30.11.2012 in the O.S.No.117 of 2004 shall stand modified and directing the respondent No.1-plaintiff to deposit the balance of sale consideration amount of Rs.18,00,000/-(Rupees Eighteen Lakhs Only) within two months from the date of the this Judgment (if not already deposited) and the plaintiff is further directed to pay interest @ 12% per annum on the balance sale consideration of Rs.18,00,000/-from the date of agreement till the date of deposit of such amount in the Court, and iii) The trial Court shall follow the directions given in the Judgment regarding the payment of the balance amount and execution of the document by subsequent purchasers, and iv) In the facts and circumstances, the parties have to bear their own costs in the Appeal. 74. Miscellaneous petitions pending, if any, in this Appeal shall stand closed.