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2023 DIGILAW 938 (AP)

R. G. Ramana Reddy v. Khuresh Estates Pvt. , Ltd.

2023-06-27

T.MALLIKARJUNA RAO

body2023
JUDGMENT : 1. The Appeal, under Section 96 of the Code of the Civil Procedure, is filed by the appellant/defendant challenging the decree and Judgment dated 04.03.2009 in O.S. No.147 of 2004 passed by the learned V Additional Senior Civil Judge, Guntur (for short, ‘trial court’). 2. The respondent is the plaintiff, who filed the suit in O.S.No.147 of 2004 seeking Specific Performance of an agreement of sale dated 14.09.2003 or the alternative for a decree for Rs.9,33,200/-together with interest @ 24% p.a. 3. The parties will, hereinafter, be referred to as arrayed before the trial Court. 4. The plaintiff’s case, as can be seen from the material averments in the plaint, is as follows: Defendant offered to sell the plaint schedule property to the extent of 2333 sq. yards for a total consideration of Rs.9,33,200/-@ Rs.400/-per sq. yard. The plaintiff showed its willingness to purchase the plaint schedule property. On 14.09.2003, the defendant executed a sale agreement in favour of plaintiff for the consideration of Rs.9,33,200/-. At the time of execution of the sale agreement, the plaintiff paid an amount of Rs.50,000/-by way of a cheque drawn on ICICI Bank dated 14.09.2003 and Rs.3,200/-cash as an advance. The defendant has acknowledged and endorsed the same in the agreement. As per the agreement of sale dated 14.09.2003, the plaintiff was required to pay the remaining balance of sale consideration of Rs.8,80,000/-in two installments, i.e., at Rs.3,00,000/-on or before 31.12.2003 and Rs.5,80,000/-on or before 28.02.2004 with the defendant obligated to register the property in the plaintiff's name upon receiving the full payment. On 27.12.2003, the plaintiff paid a sum of Rs.1,00,000/-by way of cash and Rs.2,00,000/-by way of Cheque bearing No.244567 drawn on HDFC Bank, Vijayawada, dated 27.12.2003 which were also endorsed on the reverse side of the agreement. However, despite plaintiff's efforts to complete the transaction, the defendant delayed the process, and there were indications that the defendant was attempting to sell the property to third parties. The plaintiff published a notice in a newspaper on 05.05.2004, but the defendant still failed to register the sale deed. As a result, the plaintiff had no choice but to file the present suit. 5. (a) The defendant filed a written statement contending inter-alia that defendant did not execute the suit agreement of sale or the endorsement said to be on the reverse of it. As a result, the plaintiff had no choice but to file the present suit. 5. (a) The defendant filed a written statement contending inter-alia that defendant did not execute the suit agreement of sale or the endorsement said to be on the reverse of it. The defendant is the absolute owner of the suit property, and there was an agreement of sale on hundred rupees stamp paper dated 14.09.2003 in favour of V.Lakshmi Prasad against which Rs.50,000/-was paid by way of Cheque and the transaction was @ Rs.500/-per sq. yard. However, by the end of the month, the said Lakshmi Prasad expressed his inability to proceed further with the transaction; accordingly, cancellation endorsement was made on the reverse of the stamped agreement, signed by the defendant and Lakshmi Prasad on 30.09.2003. The defendant refunded Rs.50,000/-vide cheque No.294826 drawn on ICICI Bank. The said Lakshmi Prasad requested a cash payment instead of issuing a cheque. Accordingly, the Cheque was cancelled. The defendant paid Rs.50,000/-in cash to him. It was endorsed on the reverse of the Cheque. The said Cheque was written by the scribe of the stamp agreement of sale Sri Shaik Mastan of Pedakakani. The cancelled stamp agreement was entrusted to Lakshmi Prasad. (b) In another transaction between the defendant and Lakshmi Prasad, in which Lakshmi Prasad borrowed Rs.2,50,000/-and repaid Rs.2,00,000/-vide cheque No.244567 HDFC Bank on 27.12.2003 and promised to pay the balance of Rs.50,000/- and interest of Rs.25,000/-by 28.02.2004. But he did not repay the amount. Accordingly, the defendant addressed a letter on 01.03.2004 demanding Rs.75,000/-from the plaintiff. The said amount is still due. The Cheque from HDFC Bank has nothing to do with the alleged suit transaction. The Cheque drawn from ICICI Bank is in connection with the borrowed transaction. After cancellation of the sale agreement, defendant offered the suit property along with different extents into 2400 sq. yards to others. The fact of defendant offering the suit property to others is within the plaintiff's knowledge. There is no privity of contract between plaintiff and defendant. The defendant sold 2400 sq. yards, including the suit property, to B.R.Murthy and Y.Sanjay under an agreement of sale on 12.03.2004. The said two persons who entered into an agreement of sale with the defendant had met Lakshmi Prasad and seen the cancelled stamp agreement. The time is the essence of the contract. The defendant sold 2400 sq. yards, including the suit property, to B.R.Murthy and Y.Sanjay under an agreement of sale on 12.03.2004. The said two persons who entered into an agreement of sale with the defendant had met Lakshmi Prasad and seen the cancelled stamp agreement. The time is the essence of the contract. The plaintiff has no capacity to purchase the suit property. The suit is not maintainable as the limited company has filed it without a Board Resolution, common seal and Power of Attorney. The plaintiff did not issue any demand notice to the defendant. The defendant did not see the paper publication published by the plaintiff. The so-called endorsement of the reverse of the alleged sale agreement is equally false. The suit property is in the defendant's possession. The plaintiff did not approach the Court with clean hands. 6. Based on the above pleadings, the trial Court framed the following issues: (1) Whether the plaintiff is entitled to the relief of specific Performance of a contract of sale dated 14.09.2003? (2) Whether the plaintiff is entitled to recovery of Rs.9,33,200/- with interest as prayed for? (3) To what relief? 7. The trial Court also framed the following additional issues: (1) Whether the suit agreement of sale dated 14.09.2003 is true, valid and binding on the defendant and enforceable in law? (2) Whether the part payment made under the Cheque issued under ICICI Bank and HDFC Bank relates to the suit transaction or not? 8. During the trial, on behalf of the plaintiff, P.W.1 was examined, and Exs.A1 to A.4 were marked. On behalf of the defendant, D.Ws.1 to 3 were examined, and Exs.B1 to B.8 were marked. 9. After the completion of the trial and hearing the arguments of both sides, the trial Court decreed the suit with costs by granting specific performance of the contract. 10. The learned counsel for the appellant/defendant submits the following contentions: (i) The trial Court ought to have noted that the plaintiff, in its capacity, has not signed the Ex.A.3 agreement. Still, the Managing Director, in his capacity, has signed Ex.A.3. (ii) The notice published in Ex.A.2-Newspaper clearly shows that the plaintiff did not issue notice. Still, it has been issued by the Managing Director in his capacity. Even in Ex.A.2, it was wrongly mentioned that the possession of the suit schedule property was already given to the plaintiff. Still, the Managing Director, in his capacity, has signed Ex.A.3. (ii) The notice published in Ex.A.2-Newspaper clearly shows that the plaintiff did not issue notice. Still, it has been issued by the Managing Director in his capacity. Even in Ex.A.2, it was wrongly mentioned that the possession of the suit schedule property was already given to the plaintiff. In contrast, it is not so, as seen from Ex.A.3. (iii) A resolution passed by the firm (Ex.A.4) must bear its Seal, even if it is on letterhead. Ex.A.4 lacks the Seal of the plaintiff firm, and the two Directors, alleged to have signed on Ex.A.4, were not examined. The trial Court failed to note that the attestors or DWs.2 and 3 have only to say that they have seen persons signing on the document before them. (iv) Ex.A.1 is a statement of Account of ICICI Bank belonging to the M.D., in his individual capacity but not of the plaintiff. (v) The original cancelled sale agreement is still with the plaintiff. Despite giving the notice to produce the same, it is not produced; the non-production of the document should result in an adverse inference against plaintiff. (vi) Section 16(c) of the Specific Relief Act needed to be complied with in the present case. The Judgments relied upon by the trial Court do not apply to the facts of this case. 11. Per contra, the learned counsel appearing for the respondent/plaintiff would contend that the trial Court correctly appreciated the facts of the case and reached a correct conclusion. The reasons given by the trial Court do not require any modifications. 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 14.09.2003? 2. Is the Judgment passed by the trial Court need any interference? POINT NOs.1 & 2: 13. The learned counsel for the appellant relied on Kolli Satyanarayana (Dead) by L.R.s. Versus Valuripalli Kesava Rao Chowdary (Dead) thr. Is the trial Court justified in granting relief of specific Performance of the sale agreement dated 14.09.2003? 2. Is the Judgment passed by the trial Court need any interference? POINT NOs.1 & 2: 13. The learned counsel for the appellant relied on Kolli Satyanarayana (Dead) by L.R.s. Versus Valuripalli Kesava Rao Chowdary (Dead) thr. L.R.s. and Others, 2022 SSC Online SC 1306, wherein the Hon’ble Apex at para No.12 referred to the case of K.S.Vidyanadam v. Vairavan, (1997) 3 S.C.C. 1 , and observed that: The Court should look at all the relevant circumstances, including the time limit(s) specified in the agreement, and determines whether its discretion to grant specific Performance should be exercised. It has been held that in the case of urban properties, the prices have been rising sharply. It has been held that while exercising its discretion, the Court should bear in mind that when the parties prescribe certain time limit(s) for taking steps by one or the other party, it must have some significance and that the said time limit(s) cannot be ignored altogether on the ground that time is not the essence of the contract. 14. The appellant's counsel contends that it is a fit and proper case where specific Performance ought not to be ordered. It is urged that the specific performance of an agreement need not necessarily be ordered merely because it is lawful to do so, and the matter lies in the judicious exercise of discretion of the Court. In support of his contention, he placed re liance on the decision in J.Kantham and others Vs. Abhay Kumar, (2017) 5 SCC 178 , wherein it is preferred to: 9.3. Reiterating the position in [K. Narendra v. Riviera Apartments (P) Ltd., (1999) 5 S.C.C. 77 ], this Court held thus : (S.C.C. p. 91, para 29) “29. … Performance of the contract involving some hardship on the defendant which he did not foresee while non-performance involving no such hardship on the plaintiff, is one of the circumstances in which the Court may properly exercise discretion not to decree specific performance. The doctrine of comparative hardship has been thus statutorily recognized in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not constitute an unfair advantage to the plaintiff over the defendant or unforeseeable hardship on the defendant. The doctrine of comparative hardship has been thus statutorily recognized in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not constitute an unfair advantage to the plaintiff over the defendant or unforeseeable hardship on the defendant. The principle underlying Section 20 has been summed up by this Court in Lourdu Mari David v. Louis Chinnaya Arogiaswamy, (1996) 5 SCC 589 by stating that the decree for specific performance is in the discretion of the Court but the discretion should not be used arbitrarily; the discretion should be exercised on sound principles of law capable of correction by an appellate court.” 15. The appellant’s counsel relied on Kamal Kumar Vs. Premlata Joshi, (2019) 3 SCC 704 , wherein the Hon’ble Apex at para 7 observed that: 7. It is a settled principle of law that the grant of relief of specific Performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific Performance, are: 7.1. First, whether there exists a valid and concluded contract between the parties for the sale/purchase of the suit property. 7.2. Second, whether the Plaintiff has been ready and willing to perform his part of the contract and whether he is still ready and willing to perform his part as mentioned in the contract. 7.3. Third, whether the Plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such Performance was in conformity with the terms of the contract; 7.4. Fourth, whether it will be equitable to grant the relief of specific Performance to Plaintiff against Defendant in relation to suit property or it will cause any hardship to Defendant and, if so, how and in what manner and the extent of such relief is eventually granted to the Plaintiff; 7.5. Lastly, whether the Plaintiff is entitled to a grant of any other alternative relief, namely, a refund of earnest money, etc. and, if so, on what grounds. 16. The learned counsel for the appellant contends that plaintiff has to prove that he has the money or has alternatively made necessary arrange ments to get the money. Lastly, whether the Plaintiff is entitled to a grant of any other alternative relief, namely, a refund of earnest money, etc. and, if so, on what grounds. 16. The learned counsel for the appellant contends that plaintiff has to prove that he has the money or has alternatively made necessary arrange ments to get the money. The continuous readiness and willingness on the part of the plaintiff is a precedent for granting the relief of specific perfor mance; this circumstance is material and relevant and is required to be considered by the Court while granting an order refusing to grant the relief and in support of his said contention, he relied on U.N.Krishnamurthy (since deceased) Thr. L.R.s. Vs. A.M.Krishnamurthy, (2022) S.C.C. Online 840,wherein the Apex Court also held that: There is a distinction between readiness and willingness to perform the contract, and both ingredients are necessary for the relief of Specific Performance. In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar, (1996) 4 SCC 526 cited by Mr Venugopal, this Court said that there was a difference between readiness and willingness to perform a contract. While readiness means the capacity of the plaintiff to perform the contract, which would include his financial position, willingness relates to the conduct of the plaintiff. The same view was taken by this Court in Kalawati v. Rakesh Kumar, (2018) 3 SCC 658 . 17. The learned counsel for the appellant relied on N.P.Thirugnanam Vs. Dr R.Jagan Mohan Rao, (1995) 5 SCC 115 , wherein the Apex Court held that: It is settled law that remedy for specific performance is an equitable remedy and is at the discretion of the Court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act, 1963 (for short "the Act"). Under Section 20, the Court is not bound to grant the relief just because there was a valid agreement of sale. Section 16(c) of the Act envisages that the plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented or waived by the defendant. Section 16(c) of the Act envisages that the plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior to and subsequent to the filing of the suit, along with other attending circumstances. The amount of consideration which he has to pay to the defendant must, of necessity, be proved to be available. Right from the date of the execution till the date of the decree, he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. 18. The counsel for the appellant relied on Sukhwinder Singh Vs. Jagroop Singh, (2020) S.C.C. Online SC 86, wherein the Apex Court held that: The suit being the one for specific performance of the contract on payment of the balance sale consideration, the readiness and willingness were required to be proved by the plaintiff and was to be considered by the Courts below as a basic requirement if a decree for specific performance is to be granted. In the instant case though defendant No.2 had denied the agreement as also the receipt of the earnest money, the same would not be of consequence as the agreement claimed by the plaintiff is with defendant No.1 and the contention of defendant No. 2 to deny the same is without personal knowledge on that aspect. In the instant case though defendant No.2 had denied the agreement as also the receipt of the earnest money, the same would not be of consequence as the agreement claimed by the plaintiff is with defendant No.1 and the contention of defendant No. 2 to deny the same is without personal knowledge on that aspect. However, even in the absence of the defence put forth, the plaintiff was required to prove his readiness and willingness, and that aspect of the matter was to be considered by the Courts below. In the present case though the plaintiff examined himself as PW1, as also PW2 and PW3, the document writer, and the witness to the agreement who stated about the execution of the agreement, the evidence to prove the readiness and willingness about the resources to pay the balance sale consideration is insufficient. In the light of the above well-settled principles of law referred to above, this Court will consider whether the trial court has properly exercised its discretion in granting specific performance of a contract. 19. Defendant has taken a plea in the written statement and testified as DW.1 that the Ex.A3 sale agreement is fabricated and does not bind him. As such, the burden lies on the plaintiff to establish that the defendant has executed an agreement of sale (Ex.A.3) and always been ready and willing to perform his part of the contract. The Managing Director of the plaintiff is examined as P.W.1. According to the plaintiff’s case, the defendant offered to sell the plaint schedule property for a valid consideration of Rs.9,33,200/- i.e., @ Rs.400/-per square yard. He executed an agreement of sale (Ex.A3) by incorporating all the terms and conditions in the agreement. As per the Ex.A.3 agreement, the plaintiff has to pay the balance consideration of Rs.8,80,000/-in two installments, i.e., Rs.3,00,000/-on or before 31.12.2003 and Rs.5,80,000/-on 28.02.2004. PW.1 testified that he paid an amount of Rs.50,000/-by way of a Cheque dated 14.09.2003 drawn on ICICI Bank and Rs.3200/-cash as an advance, and the defendant received the same and endorsed it on Ex.A3. 20. However, the defendant claims that he did not execute the agreement of sale (Ex.A.3) or the endorsement mentioned on the reverse of Ex.A3 and there was an agreement of sale on Rs.100/-Stamped Paper on 14.09.2003 in favor of V. Lakshmi Prasad [P.W.1]. 20. However, the defendant claims that he did not execute the agreement of sale (Ex.A.3) or the endorsement mentioned on the reverse of Ex.A3 and there was an agreement of sale on Rs.100/-Stamped Paper on 14.09.2003 in favor of V. Lakshmi Prasad [P.W.1]. The plaintiff paid Rs.50,000/-by cheque, and the transaction was priced at Rs.500/-per square yard. It is elicited in the cross-examination of PW.1 as follows: “It is true on 14.09.2003 the plaintiff has entered agreement with the defendant and the total consideration agreed to pay by the plaintiff to the defendant to Rs.9,33,200/-.” The suggestion put to PW.1 in the cross-examination shows that the defendant's plea that he entered into an agreement of sale @ Rs.500/-per sq. yard for an extent of 2333 is shown to be incorrect. The said amount will arrive only when it is calculated to the total extent of 2333 @ Rs.400/-but not at Rs.500/-. The suggestion made during the cross-examination contradicts the defendant's claim that he entered into an agreement of sale at Rs.500/-per sq. yard for an area of 2333 sq. yards. 21. According to the defendant’s stand, he and P.W.1 entered an agreement of sale on 14.09.2003, but it was cancelled and the defendant also admitted the receipt of Rs.50,000/- by way of Cheque. 22. According to D.W.1, by the end of September, P.W.1 expressed an inability to proceed with the transaction. As a result, a cancellation endorsement was made on the reverse of the Stamped Agreement, signed by both parties on 30.09.2003. The defendant refunded Rs.50,000/-through a cheque (No.294826) drawn on ICICI Bank, and the cancelled stamp agreement was returned to the plaintiff. However, P.W.1 disputed the said version. 23. To support the defendant's case, D.W.2 -Chinta Subba Rao and D.W.3 -Popuri Syam Babu were examined. In their chief examinations, they supported the defendant's version. DW.2 stated that an agreement of sale was executed on a Stamped Paper on 14.09.2003, with the plaintiff providing Rs.50,000/-, and the agreement was later cancelled on 30.09.2003. However, during cross-examination, D.W.2 has given entirely a different version and testified that he did not peruse the said agreement of sale and he did not know the reasons for its cancellation, and was unaware of the place where it was cancelled. 24. D.W.3's testimony aligned with that of D.W.2. However, during cross-examination, D.W.2 has given entirely a different version and testified that he did not peruse the said agreement of sale and he did not know the reasons for its cancellation, and was unaware of the place where it was cancelled. 24. D.W.3's testimony aligned with that of D.W.2. In his chief examination, D.W.3 stated that both the plaintiff and defendant signed the cancellation endorsement on 30.09.2003, and it was scribed by one Shaik Mastan. D.W.3 further affirmed that after the cancellation, the defendant handed over the cancelled stamp agreement to the plaintiff. However, during cross-examination, D.W.3 admitted to being unfamiliar with Shaik Mastan, the scribe of Ex.A3, and lacked knowledge about the cancellation of the agreement of sale dated 14.09.2003 or the associated transaction. 25. The evidence provided by D.W.2 and D.W.3 indicates that they did not support the defendant's version. Their testimonies were not beneficial to the defendant's case. D.W.2 stated that his signature was not present as an attestor on Ex.A.3, and D.W.3 confirmed that the signature in the attestor column in Ex.A.3 was not his own. As the attestors did not support the plaintiff's case, they were not examined as witnesses on behalf of the plaintiff. Consequently, apart from the PW.1’s testimony, no oral evidence was provided to support the plaintiff’s case. In the absence of attesting witnesses' support, the matter must be decided based on the evidence provided by P.W.1 and D.W.1, along with the documentary evidence relied upon. 26. D.W.1 testified in cross-examination that he did not send Ex.A3 agreement to the Expert for comparison as the Court has to decide whether Ex.A3 is a genuine or forged document. It seems that both the parties did not take steps to compare the document by sending the same to an Expert. Under the law, it is always open for the Court to compare the signature on the disputed document with the admitted signatures of the defendant and witnesses (attestors). The rule of prudence and caution requires that, in the first place, expert opinion should be obtained for assistance. If such an opinion is not available, then it is the duty of the Court to compare the disputed writings and to come to its own conclusion. 27. The rule of prudence and caution requires that, in the first place, expert opinion should be obtained for assistance. If such an opinion is not available, then it is the duty of the Court to compare the disputed writings and to come to its own conclusion. 27. Section 73 of the Evidence Act expressly enables the Court to compare the disputed writings with admitted or proved writings to ascertain whether the writing is that of the person by whom it purports to have been written. The Hon’ble Supreme Court in Murarilal V. State of M.P., A.I.R. 1980 SC 531, observed that the duty of the Court to compare the writings and to come to its own conclusion cannot be avoided by recourse to the statement that the Court is not expert. It is thus clear from the above observation of the Apex Court that under section 73 of the Evidence Act, the Court can compare the disputed and admitted handwriting or signature to come to its own conclusion. However, provisions of Section 73 of the Evidence Act have been interpreted by various Courts as to how the signatures or handwritings are to be compared when there is no assistance from the Expert. 28. A reading of the trial Court Judgment shows that the trial court compared the documents by invoking the powers under Section 73 of the Indian Evidence Act of 1872. The trial Court compared the disputed signatures of the defendant and D.Ws.2 and 3 with the admitted signatures and found that Ex.A3 contains the signatures of D.Ws.1 to 3. When the parties to the proceedings have not chosen to refer the disputed signatures to the Expert, this Court finds that the comparing of signatures by the trial Court is permissible and cannot be found fault with. The defendant failed to point out any glaring dissimilarities to contend that the said observation made by the trial Court is incorrect. 29. Ex.A3 agreement and the PW.1’s evidence refer to the mode of payments. But the defendant contends that the payments covered under Ex.A.3 were relating to a different transaction. As such, the burden lies on the defendant to establish the said alleged transaction. The defendant has not let in any cogent evidence to establish the said transaction. The defendant has not given the particulars of the said transaction. But the defendant contends that the payments covered under Ex.A.3 were relating to a different transaction. As such, the burden lies on the defendant to establish the said alleged transaction. The defendant has not let in any cogent evidence to establish the said transaction. The defendant has not given the particulars of the said transaction. The defendant has not provided any supporting document or explanation for not obtaining any documentation for the alleged debt transaction. According to DW.1, the plaintiff repaid Rs.2,00,000/-by way of Cheque bearing No.244567 dated 27.12.2003 drawn on HDFC Bank and promised to pay the balance of Rs.50,000/-and interest at Rs.25,000/-totalling of Rs.75,000/-by 26.02.2004. If D.W.1’s evidence is considered, the plaintiff became due an amount of Rs.75,000/-. DW.1 testified in the cross examination that he has not filed suit for recovery of Rs.75,000/-. He has not specified any reason for not initiating action against the plaintiff despite filing of this suit. The defendant’s failure to initiate any action to recover the amount, he claim was due from the plaintiff raises doubt about the veracity of his claim. The defendant has not placed any supporting material to prove the said loan transaction. The defendant has not explained any reason to lend a considerable amount to the plaintiff without a document. 30. Regarding the cancellation of the agreement and the refund of Rs.50,000, the defendant relies on Ex.B1, a cancelled cheque, as evidence. However, the cheque does not bear the plaintiff's initial or signature to support the defendant's contention that it was cancelled at the plaintiff's request. Moreover, the defendant has not obtained any receipt or acknowledgement from the plaintiff regarding the refund of Rs.50,000/-, nor he explained the reason for not obtaining receipt. 31. At the cost of repetition, if, really, there was another transaction as on the date of Ex.A3, it would be supported by documentary evidence. The evidence on record suggests that the defendant wants to link up those established payments with the alleged second transaction. The defendant has also relied on Ex.B2-office copy of the letter dated 01.03.2004 addressed by him to the plaintiff demanding payment of Rs.75,000/-and Ex.B3-certificate of posting of Ex.B2. D.W.1 stated in cross-examination that he did not send Ex.B3 through Registered Post. The defendant has also relied on Ex.B2-office copy of the letter dated 01.03.2004 addressed by him to the plaintiff demanding payment of Rs.75,000/-and Ex.B3-certificate of posting of Ex.B2. D.W.1 stated in cross-examination that he did not send Ex.B3 through Registered Post. Ex.B2 shows that it is addressed to PW.1 informing regarding the amount due to him of Rs.2,50,000/-deducting cheque payment of Rs.2,00,000/-vide Cheque bearing No.244567 drawn on HDFC Bank and request him to send balance of Rs.50,000/-and interest of Rs.25,000/-, as promised immediately. 32. Ex.B2 letter is said to be served under the certificate of posting vide Ex.B3. It is the plaintiff’s stand that Ex.B3 is a created document. The defendant has not taken steps to show the sending of such a letter by a certificate of posting. Ex.B3 does not bear the plaintiff’s signature showing the service of notice. The defendant has not examined the postal authorities to prove the sending of Ex.B.3 and its service on plaintiff. The defendant has also not explained why he did not send the letter Ex.B2 by Registered Post. Based on Ex.B2 and Ex.B3, it is somewhat difficult to conclude that there was another transaction between them and in lieu of the same, the payments referred by the plaintiff in the Ex.A3 agreement were made in connection with the alleged debt transaction. 33. The DW.1’s evidence shows that he is a Law Graduate and an Agriculturist. He testified that he does not remember whether he did Real Estate Business previously. The said evidence is not inspiring confidence. D.W.1’s evidence shows that he has given minute particulars in the cross-examination regarding his defence; it probablises that he evaded giving reply to avoid further cross examination regarding Real Estate business. The defendant’s stand is that the ‘cancelled stamp agreement’ dated 30.09.2003 was handed over to the plaintiff. When the agreement is cancelled, indeed the defendant being a Law Graduate, he is supposed to take back the cancelled stamp agreement. The failure of the defendant to take back the said agreement and his inability to provide reasons raises questions about the credibility of his testimony. No prudent man will keep the cancelled stamp agreement with the other party without proper reason. The defendant has not explained why he kept the cancelled agreement with the plaintiff either in the written statement or in his evidence. It is against the natural human conduct of a prudent person. 34. No prudent man will keep the cancelled stamp agreement with the other party without proper reason. The defendant has not explained why he kept the cancelled agreement with the plaintiff either in the written statement or in his evidence. It is against the natural human conduct of a prudent person. 34. Furthermore, the defendant also testified that he informed B.R.K.Murthy and Y.Sanjay about the cancelled stamp agreement in favour of the plaintiff while entering into the agreement of sale of schedule property with them on 12.03.2004. DW.1 testified that the said two persons went to PW.1 to see cancelled stamp agreement. He further testified that he requested them to mention the same in the agreement of sale dated 12.03.2004, but they felt it unnecessary. 35. The defendant has not chosen to examine B.R.K. Murthy and Y.Sanjay to prove the same. The defendant failed to clarify why he kept the said agreement when he felt that it was to be referred to in the agreement of sale transaction dated 12.03.2004. Had there been truth in the defendant's version, he could have taken steps to get back the cancelled stamp agreement. It is not the defendant's case that he requested for return of the agreement, but the plaintiff did not. The plaintiff’s case is that Ex.A3 agreement transaction held on 14.09.2003. In view of the same, the subsequent agreement of the sale transaction said to be held on 12.03.2004 does not affect the right of plaintiff; however, subject to establishing the execution of Ex.A3 agreement. 36. As per the PW.1’s evidence, when the defendant tried to sell the plaint schedule properties to third parties, the plaintiff got published Ex.A.2 notice in Eenadu, Guntur Edition on 05.04.2004. However, the defendant’s stand is that he did not see the publication. 37. It is also the plaintiff’s case that the firm purchased the property. The defendant has taken a plea that the suit is not maintainable as the limited company has filed the suit without a Board Resolution, Seal and Power of Attorney. As per the plaint averments and as per the evidence of PW.1, the plaintiff firm is being represented by its Managing Director/V.Lakshmi Prasad. The said V. Lakshmi Prasad is examined as P.W.1. 38. The defendant contends that PW.1, in his individual capacity, has filed the suit, and Ex.A4-Board Resolution is a created one. As per the plaint averments and as per the evidence of PW.1, the plaintiff firm is being represented by its Managing Director/V.Lakshmi Prasad. The said V. Lakshmi Prasad is examined as P.W.1. 38. The defendant contends that PW.1, in his individual capacity, has filed the suit, and Ex.A4-Board Resolution is a created one. A bare reading of the plaint averments disproves the said contention. Ex.A4 Board Resolution of the firm authorized P.W.1 to depose on behalf of the plaintiff firm, to represent the plaintiff and to file the suit on behalf of the plaintiff firm. No doubt, Ex.A4 does not contain the seal of the plaintiff firm. But, as seen from the Ex.A4, the resolution is written in the Letter Head of the plaintiff firm and the two Directors i.e., Chandrasekhar and Md. Meera authorized P.W.1 to represent plaintiff's firm. Because Ex.A4 does not contain the seal of the plaintiff’s firm, it cannot be concluded that there is no Board Resolution. It is not the plaintiff's case that PW.1 entered into an agreement of sale in his individual capacity. 39. Nothing on the record suggests any conflict of interest between PW.1 and the plaintiff firm. The evidence on record suggests that the defendant received the amounts covered under the cheques without raising any dispute regarding the competence of PW.1. It is not the stand of PW.1 that he paid the amounts in his individual capacity. Merely because Ex.A4 does not contain the seal of the plaintiff firm, it does not affect the right of the plaintiff to enforce the agreement executed in favour of the plaintiff firm. 40. The defendant has also relied on Ex.B6-Registration Extract of the Sale Deed dated 17.02.2003, which was executed by him much before Ex.A3-agreement of sale. In the cross-examination, DW.1 testified that under Ex.B6 dated 17.02.2003, he received Rs.3,43,500/-from one Kanumuru Sivakumar Reddy and he will examine Kanumuru Sivakumar Reddy. D.W.1 testified that the transaction between him and Kanumuru Sivakumar Reddy, covered under Ex.B6, is not concerned with the suit transaction. The defendant has not explained why he placed reliance on Ex.B6, if it does not pertain to the suit schedule property. When the defendant sold the schedule property covered under Ex.B6 on 17.02.2003, he was not supposed to enter into an agreement of sale on 14.09.2003. The defendant has not explained why he placed reliance on Ex.B6, if it does not pertain to the suit schedule property. When the defendant sold the schedule property covered under Ex.B6 on 17.02.2003, he was not supposed to enter into an agreement of sale on 14.09.2003. It is defendant’s stand that he entered into a stamped agreement of sale on 14.09.2003 for the plaint schedule property with the plaintiff, and subsequently, it was cancelled. Thus, Ex.B6 document will not be helpful to the defendant's case in any manner. 41. According to the defendant, time is of the essence of the contract. The agreement of sale (Ex.A3) states that the plaintiff agreed to pay the balance of the sale consideration, amounting to Rs.8,80,000/-, in two installments i.e., Rs.3,00,000/-on or before 31.12.2003 and Rs.5,80,000/-on 28.02.2004. As per the plaintiff's case, it made a payment of Rs.2,00,000/-through a cheque (No. 244567) dated 27.12.2003 and Rs.1,00,000/-in cash on the same day. PW.1 also claims that he repeatedly urged the defendant to receive the remaining balance of the sale consideration, register the transaction in plaintiff’s favor, and hand over possession of the schedule property. However, the defendant allegedly prolonged the litigation process. Eventually, the plaintiff published a notice in the Eenadu newspaper, Guntur Edition, on 05.04.2004. The plaintiff's contention is that it fulfilled its obligations and exerted efforts to compel the defendant to comply with the contract terms, but the defendant continued to delay the proceedings. The publication of the notice was done as a result of these circumstances, as explained by PW.1 in his testimony. 42. The evidence on record shows that defendant has disputed the execution of Ex.A3 agreement. Ex.A.3 does not show that the plaintiff firm has not adhered to the terms and conditions of the agreement. The defendant relied on a memo Ex.B5 issued under Order 12 Rule 8 of C.P.C., to plaintiff to produce a cancelled stamp agreement of sale dated 14.09.2003. The plaintiff's stand is that no such cancelled stamp agreement of sale existed. The defendant also miserably failed to establish that there was a stamped agreement of sale dated 14.09.2003, and it was cancelled. Once the defendant fails to establish his stand on the said aspect, Ex.B5-Memo will not help to the defendant’s case. 43. The plaintiff's stand is that no such cancelled stamp agreement of sale existed. The defendant also miserably failed to establish that there was a stamped agreement of sale dated 14.09.2003, and it was cancelled. Once the defendant fails to establish his stand on the said aspect, Ex.B5-Memo will not help to the defendant’s case. 43. The learned appellant's counsel contends that the trial Court erred in decreeing the suit as the plaintiff did not deposit the balance of sale consideration. The trial Court went beyond the scope and limit of pleadings and passed a decree for specific performance, despite making claim by the plaintiff for an alternative relief of a refund of the earnest money. 44. 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. 45. This Court views that 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 he gives up the primary relief of specific performance of the contract. 46. In U.N.Krishna Murthy (since deceased) Thr., Lrs Vs. A.M.Krishnamurthy, already referred to above, 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. 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. However, Explanation (ii) says the plaintiff must aver performance or readiness and willingness to perform the contract according to its true construction. 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 on this behalf. …….. 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. The evidence on record establishes that the defendant executed Ex.A.3 agreement of sale with the plaintiff, agreeing to the terms and conditions. 50. The evidence on record establishes that the defendant executed Ex.A.3 agreement of sale with the plaintiff, agreeing to the terms and conditions. The trial Court, on proper appreciation of the evidence on record, has come to the correct conclusion regarding the execution of the sale agreement by the defendant. In Prakash Chandra V. Angadial, A.I.R. 1979 SC 1241, the Hon’ble Apex Court reiterated that the ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. 51. Section 20(2) of the Specific Relief Act contains the cases in which the Court may properly exercise discretion not to decree specific Performance. Three types of cases have been given under subsection (2) in the form of clauses (a), (b) & (c), in which the Court exercises its discretion not to decree specific Performance; it is useful to extract the said clauses hereunder: (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the Plaintiff an unfair advantage over the defendant; or (b) where the performance of the contract would involve some hardship on defendant which he did not foresee, whereas its non-performance would involve no such hardship on Plaintiff; or (c) where defendant entered into the contract under circumstances which though not rendering the contract voidable, make it inequitable to enforce specific Performance. 52. The instant case does not fall under any of these clauses. Usually, when the trial Court exercises its discretion in one way or another after appreciating the entire evidence and the materials on record, the appellate Court should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The appellate Court should also not exercise its discretion against the grant of specific performance on extraneous considerations or sympathetic considerations. It is true, as contemplated under section 20 of the Specific Relief Act, that a party is not entitled to get a decree for a specific performance merely because it is lawful to do so. The appellate Court should also not exercise its discretion against the grant of specific performance on extraneous considerations or sympathetic considerations. It is true, as contemplated under section 20 of the Specific Relief Act, that a party is not entitled to get a decree for a specific performance merely because it is lawful to do so. Nevertheless, once an agreement to sell is legal and validly proved and further requirements for getting such a decree are established, the Court has to exercise its discretion to grant relief for a specific performance. 53. The learned counsel for appellant submits that the grant of decree for a specific performance in favour of Plaintiff will cause great hardship because of the price rise. 54. In K. Prakash v. B.R. Sampath Kumar, (2015) 1 SCC 597 , the Hon’ble Apex Court observed that: 18. Subsequent rise in price will not be treated as a hardship entailing refusal of the decree for specific performance. The rise in price is a normal change of circumstances; therefore, on that ground, a decree for a specific performance cannot be reversed. 19. However, the Court may take notice of the fact that there has been an increase in the price of the property and considering the other facts and circumstances of the case, this Court, while granting a decree for specific performance, can impose such conditions which may to some extent compensate the defendant owner of the property. This aspect of the matter is considered by a three-Judge Bench of this Court in Nirmala Anand v. Advent Corpn. (P) Ltd., (2002) 8 SCC 146 . …” As held by the Apex Court time and again, efflux of time and escalation of the price of the property by itself cannot be a valid ground to deny the relief of specific performance. The subsequent rise in price will not be treated as a hardship entailing refusal of the decree for a specific performance. A rise in the price is a normal change of circumstance, and therefore, on that ground, a decree for a specific performance cannot be reversed. But the Court, in its discretion, may impose reasonable conditions, including payment of an additional amount to the vendor. It is equally well settled that the plaintiff is not to be denied specific performance only on account of the phenomenal price increase during the pendency of litigation 55. But the Court, in its discretion, may impose reasonable conditions, including payment of an additional amount to the vendor. It is equally well settled that the plaintiff is not to be denied specific performance only on account of the phenomenal price increase during the pendency of litigation 55. The respondent/plaintiff is a business entity and there is nothing to indicate that it is not in a position to arrange the balance amount. The fact that the plaintiff has promptly filed the suit demonstrates its eagerness and readiness to fulfill its obligations under the contract. It must be remembered that the plaintiff had put in an advertisement in the Newspaper about the existence of the agreement and expressed its readiness and willingness to perform its part of the contract. The defendant failed to establish that the plaintiff took undue advantage. Since the transaction in question is in respect of the immovable property, even if it is assumed that the time is fixed for the performance of the contract, attendant circumstances and the parties' conduct did not suggest that time is the essence of the contract. From the discussion, it is clear that the plaintiff has always been ready and willing to perform his part of the contract. 56. Moreover, it is the defendant who had always been trying to wriggle out of the contract by disputing the execution of the agreement of sale. Now, the defendant cannot take advantage of his wrong and then plead that grant of decree of specific performance would be inequitable. It is not established by the defendant that during the period between Ex.A3 and the date of filing of the suit, there was a rise in prices regarding immovable properties like the plaint schedule property, which made the plaintiff avail of this opportunity. Escalation of prices cannot be a ground for denying the relief of specific performance. Specific Performance is equitable relief, and granting the relief is the discretion of the Court. The discretion has to be exercised by the Court judicially and within the settled principle of law. 57. Escalation of prices cannot be a ground for denying the relief of specific performance. Specific Performance is equitable relief, and granting the relief is the discretion of the Court. The discretion has to be exercised by the Court judicially and within the settled principle of law. 57. In Nirmala Anand V. Advent Corporation (P) Ltd. And others, 2002 (6) A.L.D. 54 (S.C.), the Hon’ble Apex Court held that: ………As a general rule, it cannot be held that ordinarily, the plaintiff cannot be allowed to have, for her alone, the entire benefit of a phenomenal increase in the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances in which parties may not have any control. The totality of the circumstances is required to be seen. 58. After going through the entire evidence on record, this Court upholds the trial court’s findings that the defendant executed Ex.A.3 agreement agreeing to the terms and conditions therein and the plaintiff is always ready and willing to perform his part of the contract. There are no justifiable reasons to arrive at a different conclusion. The learned trial Judge used his discretion to grant relief of specific performance of the agreement, and the said discretion was based on the proper exercise of sound principles. The conduct of the defendant resisting to execute the sale deed is quite incorrect. 59. On a consideration of the entire material, pleadings, evidence adduced and the impugned Judgment, I am convinced in the light of the analysis above that the trial Court rightly exercised its discretion in granting the relief of specific performance and rightly decreed the suit. 60. Having reached the conclusion that the Judgment of the trial court is the result of proper appreciation of evidence, I find no illegality or arbitrariness in the impugned Judgment. In my view, however, the learned Judge ought to have granted a decree for specific performance, directing the plaintiff to pay a balance of consideration amount with interest thereon at 12% per annum. 61. In my view, however, the learned Judge ought to have granted a decree for specific performance, directing the plaintiff to pay a balance of consideration amount with interest thereon at 12% per annum. 61. The findings of the trial court are accurate, and there is no need for interference except for awarding interest on the balance of sale consideration amount, as stated. Accordingly, the points raised in the Appeal are answered. 62. As a result, i) The Appeal is allowed in part. The Judgment and decree dated dt.04.03.2009 passed in O.S.No.147 of 2004 by the learned V Additional Senior Civil Judge, Guntur, is confirmed to the relief of specific Performance with costs, and ii) The Judgment and decree dated 04.03.2009 in the O.S.No.147 of 2004 shall stand modified and direct the respondent/plaintiff to deposit the balance of sale consideration amount of Rs.5,80,000/-(Rupees Five Lakhs Eighty Thousand Only) within two months from the date of this Judgment (if not already deposited), and the plaintiff is further directed to deposit the amount towards interest @ 12% per annum on the balance sale consideration from the date of 28.02.2004 till the date of deposit of such amount in the Court, and iii) On such deposit, the defendant shall execute the sale deed within one month; after that, failing which, the Court shall execute the sale deed in favour of the plaintiff in respect of the plaint schedule property. iv) After execution of the sale deed, the defendant is entitled to withdraw the amount deposited in the Court. v) In the facts and circumstances, the parties have to bear their costs in the Appeal. 63. Miscellaneous petitions pending, if any, in this Appeal shall stand closed.