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Andhra Pradesh High Court – Amravati
Iska Sree Devamma vs N.Vijaya Krishna on 10 April, 2025
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
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NJS, J & JS, J
A.S.Nos.431, 494, 523 & 576 of 2014
APHC010584512014
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3494]
(Special Original Jurisdiction)
THURSDAY
THURSDAY,THE TENTH DAY OF APRIL
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE NINALA JAYASURYA
THE HONOURABLE SMT JUSTICE SUMATHI JAGADAM
APPEAL SUIT Nos: 431, 494, 523 & 576 of 2014
A.S.No.494 of 2014
Between:
Iska Vijaya Kumar Reddy ...APPELLANT
AND
N.Vijaya Krishna & Others ...RESPONDENT(S)
Counsel for the Appellant:
1. Mr.M.V.S.Suresh
S.Suresh Kumar, learned Senior Counsel
For Mr.M.V.PRATAP
PRATAP KUMARCounsel for the Respondent(S):
1. Mr.CH.LAXMI
LAXMI NARAYANAThe Court made the following:
following
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NJS, J & JS, J
A.S.Nos.431, 494, 523 & 576 of 2014Common Judgment: (per Hon’ble Sri Justice Ninala Jayasurya, J)
These four appeals arise out of a common Judgment and Decree dated
26.06.2014 in O.S.No.37 of 2004 and O.S.No.62 of 2006 on the file of the
Court of the Principal District Judge, Nellore.
2. O.S.No.37 of 2004 was filed by Mr.N.Vijaya Krishna against
Mr.Vijayakumar Reddy & another seeking a decree for specific performance of
an Agreement of Sale dated 24.07.2003 in respect of land admeasuring
Ac.6.03 cents situated in Survey Nos.1125, 1126, 1130/A, 1130/B and 1131/A
of Nellore Bit-II Revenue Village. Mr.Vijayakumar Reddy filed O.S.No.62 of
2006 (renumbered on transfer of O.S.No.375 of 2004 on the file of the Senior
Civil Judge’s Court, Nellore) against Mr.N.Vijaya Krishna seeking Permanent
Injunction from interfering with the peaceful possession and enjoyment of the
said property.
3. By the said Common Judgment, the learned District Judge, decreed the
suit for Specific Performance and dismissed the suit for Injunction. Aggrieved
by the Judgment and Decree dated 26.06.2014 in O.S.Nos.37 of 2004, the 1 st
defendant therein i.e., Mr.Vijayakumar Reddy filed A.S.No.494 of 2014, the 2 nd
defendant filed A.S.No.431 of 2014 and the defendants 3 to 5, who got
themselves impleaded in the said suit, filed A.S.No.576 of 2014. Against the
dismissal of the suit, O.S.No.62 of 2006, the plaintiff therein i.e.,
Mr.Vijayakumar Reddy filed A.S.No.523 of 2014.
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A.S.Nos.431, 494, 523 & 576 of 2014
4. For the sake of convenience, the parties hereinafter are referred to as
they are arrayed in O.S.No.37 of 2004, which is the lead case and the stand
taken by them may briefly be set out herein under:
5. O.S.No.37 of 2004: Mr.Iska Vijaya Kumar Reddy / 1st defendant and his
mother Smt.Sridevamma / the 2nd defendant are the son and widow of one
late Sri Anjaneyulu Reddy. The 1 st defendant represented that besides himself
and his mother 2nd defendant, none else have any right, interest or possession
over the land of an extent of Ac.6.03 cents situated in Survey Nos.1125, 1126,
1130/A, 1130/B and 1131/A of Nellore Bit-II. She is a cardiac patient, residing
at Hyderabad with the 1st defendant, cannot be moved from Hyderabad and
that he was desirous of selling the said property. The plaintiff Mr.N.Vijaya
Krishna agreed to purchase the said property for a valuable consideration of
Rs.91,65,600/- and an Agreement of Sale was executed on 24.07.2003 at
Hyderabad. Advance amount of Rs.30,00,000/- was paid to the 1 st defendant
and it was agreed that out of the balance amount of Rs.61,65,600/-, a sum of
Rs.51,65,600/- shall be paid on or before 30.08.2003 and the remaining
balance on or before 15.10.2003.
a) The agreement provides that in the event of the purchaser / plaintiff
not paying the amount of Rs.51,65,600/- within the stipulated time, he has to
pay interest @ 36% p.a., and get the sale registered in his name on or before
15.10.2003, that in the event the defendants fail to comply with the terms of
agreement, the plaintiff is entitled to seek specific performance of the
Agreement of Sale. Further, as per Clause No.8 of the Agreement, in the
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A.S.Nos.431, 494, 523 & 576 of 2014event of the plaintiff failing to make payment of the amount due under the
agreement on or before the stipulated date or on or before the extended date,
the 1st defendant is entitled to enforce specific performance of the Agreement
compelling the plaintiff to conclude sale through process of Court.
b) The 1st defendant / Mr.Vijaya Kumar Reddy in his Letter dated
31.12.2003 admitted receipt of Rs.9,00,000/- on 10.10.2003 and
Rs.10,00,000/- on 30.10.2003 i.e., 15 days after the stipulated time under
Condition No.3 of the Agreement of Sale and it indicates waiver of his right to
sell the plaint schedule property at his own will and discretion to anyone. The
last part of the condition in Condition No.8 was thus diluted by the 1st
defendant himself. Through the said Letter dated 31.12.2003, the 1st
defendant also indicated his claim for interest for delayed payment, that
against the original extent of Ac.6.03 cents, Ac.0.02 more cents surfaced as
extra and the plaintiff should pay for the said extra land and thus, the
cumulative effect of the agreement dated 24.07.2003 and the letter dated
31.12.2003 points out to the intention to sell the property. Subsequently,
through an undated letter, the 1st defendant having had the plaint schedule
extent measured twice, enclosed plans thereto and indicated the plaintiff that
the Demand Drafts(D.Ds) be sent in his name and in the name of his mother
in respect of the registration value and the balance be sent by way of D.D., in
the name of Mr.I.Anand Mohan Reddy, that he would collect the D.Ds. 1 st
defendant also addressed a letter dated 16.03.2004 to the plaintiff’s friend one
Mr.Subba Reddy indicating the amounts due and how the D.Ds should be
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A.S.Nos.431, 494, 523 & 576 of 2014
secured in the names of defendants 2 & 1 and others totaling to Rs.8,13,617/-
and the remaining balance of Rs.10,00,930/- be payable at the time of
registration to the 1st defendant. The letter dated 16.03.2004 clearly confirms
waiving of condition No.8 and that the time is not of the essence of the
contract. Apart from payments stated above, on telephonic instructions of
defendant No.1, the plaintiff obtained several D.Ds., in the names of various
persons mentioned by the defendant No.1, including himself and his mother
and 28 DDs for a total sum of Rs.49,00,000/- were obtained from Indian
Overseas Bank, Ongole, Andhra Bank, Nellore and State Bank of India,
Nellore on different dates and thus a total amount of Rs.79,00,000/- was paid
and the 1st defendant and his family members, were thus benefited by the
same.
c) After payment of the said amount of Rs.79,00,000/-, a balance of only
Rs.12,65,000/- was due, but to the shock and surprise, the plaintiff received a
copy of the Caveat from the defendant No.1 on 23.06.2004, wherein a
reference was made to a notice said to have been issued on 16.04.2004,
which was not addressed or received by the plaintiff. Subsequently, the
plaintiff got issued a notice to the defendants on 21.08.2004 calling upon them
to indicate their readiness to receive the balance sale consideration and
execute a regular Deed of Sale, but the 1st defendant has not come forward
even after receipt of the notice and on the contrary, the 1 st defendant filed
O.S.No.375 of 2004 (renumbered as O.S.No.62 of 2006 on transfer) before
the Court of the Senior Civil Judge, Nellore seeking relief of injunction.
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A.S.Nos.431, 494, 523 & 576 of 2014
d) In view of the conduct of the 1st defendant in trying to revive part of
Condition No.8, despite accepting payments made after 15.10.2003, the
plaintiff was constrained to file the suit for specific performance of Agreement
of Sale dated 24.07.2003, that he is possessed of cash to pay the entire
balance of sale consideration any day and even ready to deposit the same as
and when so ordered. The Agreement of Sale correctly mentioned the entire
extent of lands of Ac.6.03 cents comprised in 5 Survey Numbers, but only four
survey numbers were shown, though as per Pattadar Pass Books, the said
extent comprises in five survey numbers. The said omission / mistake does
not affect the rights of the party, and a decree directing the defendants to
execute the Registered Sale Deed in respect of the plaint schedule property in
terms of the suit Agreement of Sale and in default of compliance thereof by
the defendant, the Court may execute such Sale Deed and put the plaintiff in
possession of the suit property.
6. The 1st defendant in his written statement stated that he and the plaintiff
have entered into an agreement of Sale dated 24.07.2003 and an amount of
Rs.30,00,000/- was received by him as an advance towards sale
consideration. That Clause No.8 of the Agreement of Sale, provides that on
the failure of the plaintiff to comply with the terms of the agreement of sale, the
vendor shall have full rights to sell the schedule property at his own will and
discretion, the said Clause in the agreement clearly establishes that the time
is of the essence of the agreement of sale, as such, the 1st defendant is
entitled to put an end to the agreement of sale and sell the property to others.
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A.S.Nos.431, 494, 523 & 576 of 2014
He denied the Letter dated 31.12.2003 and the receipt of the amount
mentioned therein and that he did not write any undated letters to the plaintiff
indicating that the Demand Drafts have to be sent in his name, and in the
name of his mother and Mr.Sravan Kumar Reddy & others. The undated
Letter as also another Letter dated 16.03.2004 addressed to the plaintiff’s
friend Mr.Subbareddy were denied. He admitted the receipt of the Demand
Draft dated 14.08.2003 for Rs.5,00,000/-, but denied receipt of Rs.49,00,000/-
sent by the plaintiff through various D.Ds. He denied the allegations of
suppression of facts, and referring to a Registered Notice dated 16.04.2004
cancelling the Agreement of Sale, took a stand that there is no enforceable
agreement between him and the plaintiff. A plea was also taken that the 2 nd
defendant is not a party to the suit agreement and that the same is not binding
on her and thus, the plaintiff cannot enforce the same against the 2 nd
defendant. He pleaded that the suit property originally belong to the father of
the 1st defendant and husband of the 2nd defendant and on the death of his
father, he and the 2nd defendant, have acquired half share each in the suit
land. He also stated that his sons filed O.S.No.243 of 2004 on the file of the
Chief Judge, City Civil Court, Hyderabad and that in view of the injunction
granted in the suit, they are prevented from executing any Sale Deed in favour
of the plaintiff in relation to any portion of the suit land. He denied that the
plaintiff possessed cash to pay the balance sale consideration and prayed for
dismissal of the suit.
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A.S.Nos.431, 494, 523 & 576 of 2014
7. The 2nd defendant filed a written statement, inter alia, contending that
the defendant No.1 has no right to represent her interest, that she is not a
party to the suit agreement and as such the same is not binding on her. She
stated that on the death of her husband Mr.Iska Anjaneyulu Reddy, the suit
schedule property which originally belongs to her husband devolved on her
and his son / 1st defendant in equal shares, that the 1st defendant has no right
to deal with or enter into any transactions with others regarding her half share,
that she was not aware as to what transpired between the plaintiff and the 1st
defendant. She denied the receipt of any Demand Draft from the plaintiff and
that an amount of Rs.79,00,000/- including the advance and the Demand
Drafts was enjoyed by the defendants. She also denied the receipt of Demand
Drafts (4 numbers) stated to have been taken on different dates for different
amounts.
8. Defendants 3 to 5 got themselves impleaded in the suit by filing
applications under Order 1 Rule 10 of Code of Civil Procedure. The defendant
No.3 filed a written statement taking a plea that the suit property is ancestral
property of the 1st defendant and defendants 3 & 4 as also their minor brother
one Mr.Vishwaksena Reddy are entitled to 3/4th share in the suit property, that
the transaction covered by the suit agreement of sale is neither for legal
necessity nor for the benefit of the estate and that the same is not binding on
them. Further, that the 1st defendant is not entitled to execute a Sale Deed in
favour of the plaintiff conveying their share in the suit property and that the suit
for specific performance of the agreement of sale in relation to the entire suit
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A.S.Nos.431, 494, 523 & 576 of 2014
property is not maintainable. The 4th and 5th defendants adopted the written
statement of 3rd defendant.
9. O.S.No.62 of 2006: Mr.Iska Vijay Kumar Reddy, filed the suit for
Permanent Injunction restraining N.Vijaya Krishna who is the plaintiff in
O.S.No.37 of 2004, his men and agents from interfering with the peaceful
possession and enjoyment of the property, which is the subject matter of the
Agreement of Sale dated 24.07.2003. While mentioning that the defendant
therein agreed to purchase the suit schedule property for a sum of
Rs.91,65,600/- under the Agreement of Sale dated 24.07.2003, the receipt of
Rs.30,00,000/- as advance towards sale consideration and other terms and
conditions set out therein was admitted. But it is alleged that the defendant
failed to pay the balance sale consideration inspite of repeated demands and
in such circumstances, he got issued a registered Legal Notice on 16.04.2004
terminating the agreement of sale and that the same was received by the
defendant on 19.04.2004. It was also alleged that on 19.05.2004 and
03.06.2004, the defendant therein along with unsocial elements entered into
the hospital of the plaintiff situated at Sanjeeva Reddy Nagar, Hyderabad and
threatened his children and staff with dire consequences. The plaintiff on the
premise that the Agreement of Sale dated 24.07.2003 was terminated by
virtue of the registered Legal Notice dated 16.04.2004, and as such the
defendants does not have any subsisting rights, sought permanent injunction
against the defendant, his men and agents from entering into the suit
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A.S.Nos.431, 494, 523 & 576 of 2014
schedule property or in any other manner interfering with his peaceful
possession and enjoyment of the same.
10. The defendant in O.S.No.62 of 2006 filed a written statement denying
the plaint averments and furnished the details of various payments to a tune of
Rs.49,00,000/- on different dates as mentioned in the plaint in O.S.No.37 of
2004. While referring to the Letter dated 31.12.2003 and the
acknowledgement of receipt of the amounts by the plaintiff as also Letter
dated 16.03.2004 addressed to one Mr.Subba Reddy, who is an employee of
the defendant, it was pleaded that it is incompetent for the plaintiff to terminate
the agreement of sale and the said act is illegal and that the suit is liable to be
dismissed.
11. On the basis of the respective pleadings, in O.S.No.37 of 2004, the
learned District Judge, framed the following issues and additional issues:
Issues (Dated 14.03.2005)
1. Whether the plaintiff is entitled for specific performance of
Agreement of Sale, dated 24.07.2003 and the said agreement of
sale is true and valid?
2. Whether the letter dated 31.12.2003 is true?
3. Whether the 2nd defendant is not a party to suit agreement?
4. To what relief?
Additional Issue (Dated 08.08.2007)
1. Whether the Agreement of Sale is binding on the defendants 3 to 5?
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A.S.Nos.431, 494, 523 & 576 of 2014
Additional Issues (Dated 11.11.2008)
1. Whether the payments pleaded by the plaintiff except the payment of
Rs.5,00,000/- dated 14.08.2003 are true?
2. Whether time is not the essence of the suit agreement?
3. Whether the 1st defendant terminated the suit agreement?
In O.S.No.62 of 2006, the following issues were framed:
1. Whether the plaintiff is entitled to permanent injunction as prayed
for?
2. To what relief?
12. Both the suits were clubbed together and common evidence was
recorded in O.S.No.37 of 2004. The plaintiff in the said suit was examined as
P.W.1 and P.Ws.2 to 9 were examined in support of the plaintiff and Exs.A1 to
A14 were marked. Exs.X1 to X50 were marked through bank officials. The
defendants 1, 3 and 2 got themselves examined as D.Ws.1 to 3 respectively
and got marked Exs.B1 to B10. The report of the handwriting expert was
marked as Ex.C1.
13. The learned Trial Court after discussing the evidence, both oral and
documentary, while holding that the suit Agreement of Sale (Ex.A1) is true and
valid, proceeded to consider the additional Issue No.1 and recorded its
findings in favour of the plaintiff about the payments made to a tune of
Rs.49,00,000/- by way of Demand Drafts on various dates, inter alia, by taking
into account the conduct of the 1st defendant in not producing the records of
Viskas Finewest Leasing Pvt. Ltd., Finance Company Shareholders’ List and
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A.S.Nos.431, 494, 523 & 576 of 2014Accounts of that company for the year 2003-2004, and Iskas Hospitals
Pvt.Ltd., Shareholders’ List and Accounts of that company pertaining to the
year 2003-2004, which were sought for, under Section 66 of the Indian
Evidence Act and presumption with regard to entries in the bank accounts,
that the 1st defendant realized the monies through D.Ds., in the name of his
kith and kin to avoid Income Tax problem.
14. So far as the Issue No.2 i.e., Whether the Letter dated 31.12.2003 is
true?, basing on the evidence of P.W.9 (hand writing expert) coupled with
Ex.C1, the learned Trial Court opined that Ex.A2 – Letter dated 31.12.2003
contains the signature of the 1st defendant, that in view of the same and in the
absence of any contra evidence, not only Ex.A2 but also Exs.A3 and A4 can
be taken into consideration and held that Letter dated 31.12.2003 is true.
15. With regard to additional issues Nos.2 and 3 as to whether the time is
not the essence of the suit agreement and whether the 1st defendant
terminated the suit agreement, the learned Trial Court recorded its findings at
Para No.28 in the following terms:
“iv) A perusal of Exhibit B-3 termination notice dated 16.04.2004 shows that the
1st defendant straight away issued the said termination notice, even without
giving opportunity to the plaintiff, by stipulating any reasonable time to perform
his part of contract. In view of the same, it cannot be said that the 1st defendant
was justified in issuing such a notice. Though it is the contention of the plaintiff
that he did not receive Exhibit B-3 notice, the evidence of D.W.-1, coupled with
Exhibit B-4 – 3 postal receipts and Exhibit B-5 – 3 postal acknowledgments,
shows that the 1st defendant sent the notice to all the three addresses where the
plaintiff generally resides / carries on his avocation, and they were received by
the plaintiff. In view of the same, it cannot be said that the plaintiff has not
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A.S.Nos.431, 494, 523 & 576 of 2014received any such termination notice. However, as already stated, by the said
notice it cannot be said that time is the essence of the contract. Therefore, I hold
that time is not the essence of the contract, and termination of the contract by the
1st defendant under Exhibit B-3 is not valid. Accordingly, Additional Issue Nos.2
and 3 are answered.”
16. As regards Issue No.3, whether the 2nd defendant is not a party to the
suit agreement and Additional Issue No.1, whether the Agreement of Sale is
binding on the defendants 3 to 5, the learned Trial Court while observing that
Issue No.3 ought to have been whether the suit agreement of sale is binding
on the 2nd defendant, since admittedly, the 2nd defendant is not a party to the
Ex.A1-Agreement of Sale, and that as per the admissions of the 1st defendant,
his intention is to sell the entire property not only on his behalf, but also on
behalf of all the other sharers, opined that the Judgment and Decree in
O.S.No.243 of 2004 (Exs.B6 and B7) obtained by the sons of the 1st
defendant is collusive, obtained in a bid to defeat the rights of the plaintiff
under Ex.A1, do not bind the 1st defendant and do not come in the way of
granting the relief of Specific Performance, in case the plaintiff is entitled
otherwise. While expressing its view that the plaintiff is entitled to enforce
Ex.A1-Agreement of Sale and rejecting the pleas raised on behalf of the 1 st
defendant about the readiness of the plaintiff with the balance sale
consideration, the learned Trial Court granted the relief of Specific
Performance in favour of the plaintiff. It answered Issue No.3 and Additional
Issue No.3 as also Additional Issue No.1 framed on 08.08.2007 inter alia
holding as follows:
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A.S.Nos.431, 494, 523 & 576 of 2014“iv) Simply because it is averred in the plaint that the 1st defendant represented to
the plaintiff that himself and his mother – the 2nd defendant got right in the
property, it cannot be said that the 2nd defendant has got right in the property.
The said stand taken by the plaintiff appears to have been based on the alleged
representation of the 1st defendant. But, the said version of the plaintiff is
incorrect, inasmuch as the recitals in Exhibit A1-Agreement of sale do not
support it. Moreover, specific suggestions were given by the plaintiff to DW-1
that he made believe the plaintiff that he (the 1st defendant ) is the absolute
owner of the plaint schedule property covered under Exhibit A-1 and he entered
into agreement of sale by providing Ex.A-11 photocopy of Pattadar Passbook in
his name, In view of the same, the said version of the plaintiff cannot be taken
into consideration. It appears, the plaintiff might have come forward with such a
plea in view of the stand taken by the 1st defendant in Exhibits A2 and A4 letters.
(v) In view of my foregoing discussion, I hold that Exhibit A-1 Agreement of Sale
does not bind the defendants 2 to 5. However, it is made clear that in view of my
observations that the 1st defendant has got right over the property, he cannot
avoid his obligation under Exhibit A-1. Accordingly, Issue No.3 and Additional
Issue No.3 and Additional Issue No.1 framed on 08.08.2007 are answered.”
(Para 35)
17. Answering Issue No.4 in O.S.No.37 of 2004 in favour of the plaintiff, the
learned District Judge, decreed the suit granting the relief of Specific
Performance against the 1st defendant / Iska Vijaya Kumar Reddy, with a
direction to the plaintiff to pay the balance sale consideration of
Rs.12,65,600/- with interest on delayed payment and also Rs.30,500/-
towards the value of the land for Ac.0.02 cents found in excess of Ac.6.03
cents i.e., a sum of Rs.14,23,900/- in all, within a period of one month to the
1st defendant and to obtain Registered Sale Deed and in the event of the
failure on the part of the 1st defendant, the plaintiff is at liberty to obtain the
Registered Sale Deed through Court. It dismissed the suit against the
defendants 2 to 5.
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18. The learned Trial Court, insofar as O.S.No.62 of 2006 is concerned,
dismissed the same inter alia observing that no evidence was adduced by
examining the watchman to substantiate allegations of interference with the
possession and held that Mr.Vijayakumar Reddy / plaintiff in the said suit is
not entitled for the relief of permanent injunction.
19. Heard Mr.M.V.S.Suresh Kumar, learned Senior Counsel appearing on
behalf of the appellant in A.S.No.494 of 2014 and A.S.No.523 of 2014 and
Mr.A.S.C.Bose, learned arguing counsel appearing on behalf of the appellants
in A.S.No.431 of 2014 and A.S.No.576 of 2014. Also heard Mr.Ch.Lakshmi
Narayana, learned counsel appearing on behalf of the contesting respondent /
successful plaintiff in O.S.No.37 of 2004.
20. Mr.M.V.S.Suresh Kumar, learned Senior Counsel, while referring to the
oral and documentary evidence on record, made elaborate submissions that
the common order of the learned Trial Court under challenge is not
sustainable.
21. He submits that there is no dispute with regard to execution of
Agreement of Sale dated 24.07.2003 (Ex.A1) and receipt of Rs.30,00,000/- as
advanced by the defendant No.1 / Mr.Iska Vijaya Kumar Reddy. He contends
that the said Agreement of Sale was cancelled on 16.04.2004 vide Ex.B3 and
the Trial Court recorded a categorical finding that the said Notice was received
by the plaintiff. He contends that once Notice of termination was issued, it is
settled position in Law that suit for Specific Performance of Agreement of Sale
is not maintainable, unless a declaration is sought for that the termination of
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Agreement of Sale is illegal. He submits that in the present case, no such
declaration was sought for by the plaintiff that the Termination Notice / Ex.B3
is invalid and in the absence of the same, the learned Trial Court, went wrong
in decreeing the suit in favour of the plaintiff. In support of his contention, the
learned Senior Counsel places reliance on the decision of the Hon’ble
Supreme Court reported in I.S.Sikandar (Dead) by Lrs., v. K.Subramani &
Others1 and Mohinder Kaur v. Sant Paul Singh2.
22. The learned Senior Counsel further contends that the plaintiff did not
state anything about the receipt of the Cancellation Notice Ex.B3 dated
16.04.2004 in the plaint and non-disclosure of the said crucial aspect amounts
to suppression of fact, as such the plaintiff is not entitled to the discretionary
relief of Specific Performance of Agreement of Sale dated 24.07.2003(Ex.A1).
He submits that the plaintiff, who approaches the Court for a decree of
Specific Performance, must come with clean hands, but in the present case,
despite receiving the Termination Notice (Ex.B3) prior to filing of the suit, the
plaintiff did not disclose the same and therefore, the suit is liable to be
dismissed on that ground. He also submits that the finding of the Trial Court
concluding that Ex.B3-Notice was served on the plaintiff has attained finality,
as the same was not challenged by way of appeal / cross objections.
23. The learned Senior Counsel further contends that the findings recorded
by the learned Trial Court with regard to Exs.A2 to A4 are not sustainable. It is
his submission that D.W.1 / the 1st defendant denied the signature on Ex.A2
1
(2013) 15 SCC 27
2
(2019) 9 SCC 358
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i.e., letter dated 31.12.2003 stated to have been addressed by him to the
plaintiff. He submits that though the opinion of the hand writing expert (P.W.9)
was to the effect that the signature in Ex.A2 tallied with the admitted signature
of the 1st defendant, there is no corroboration of the expert evidence and in
the absence of the same, the learned Trial Judge erred in giving weight to it.
Relying on the decisions of the Hon’ble Supreme Court reported in Chennadi
Jalapathi Reddy v. Baddam Pratapa Reddy (Dead) through Legal
Representatives & Another3, he would further contend that the evidence of
the hand writing expert is a weak type of evidence and is to be rarely given
precedence over substantive evidence.
24. With regard to Letter dated 16.03.2004 (Ex.A3) and undated letter
(Ex.A4), wherein a reference was made to the payments to be made to the 1st
defendant and his mother i.e., the 2nd defendant and to some other persons /
parties mentioned therein, he submits that as is evident from Ex.A3, it does
not contain the signature of the 1st defendant and no evidence was adduced
to prove that Ex.A4 is in the hand writing of the 1st defendant. Drawing the
attention of this Court to Ex.A3 and the statement of the Demand Drafts
reflecting various payments as set out in the plaint (para No.7 (a)), the learned
counsel also argues that if the 1st defendant received Rs.9,00,000/- on
10.10.2003 and Rs.10,00,000/- on 30.10.2003, adding the said sum to
Rs.30,00,000/-, which was paid as advance and the amount of Rs.49,00,000/-
paid through the Demand Drafts as stated in the plaint, the total amount would
be Rs.98,00,000/-, which is over and above the agreed sale consideration of
3
(2019) 14 SCC 220
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Rs.91,65,000/-, that it is not even the case of the plaintiff. Be that as it may.
He submits that no evidence was adduced with regard to payment of the said
amount of Rs.19,00,000/-. He submits that the plaintiff, thus, came to the
Court pleading a false case, with unclean hands and the learned Trial Court
without appreciating these aspects, granted the decree and the same is not
sustainable.
25. So far as the readiness and willingness on the part of the plaintiff, the
learned Senior Counsel contends that it is settled position in Law that in a suit
for Specific Performance of Agreement of Sale, the plaintiff has to plead and
prove both readiness and willingness. He submits that except a mere
statement in the plaint, the plaintiff had not adduced any evidence about the
financial capacity and readiness with the amount of Rs.12,65,600/-, said to be
the balance of the sale consideration.
26. The learned Senior Counsel while not pressing much on the finding of
the Trial Court that the time is not the essence of the contract, submits that the
very fact that as per the Agreement of Sale the plaintiff should have paid the
entire sale consideration on or before 15.10.2003 and despite receipt of the
Termination Notice dated 16.04.2004 (Ex.B3), the suit was filed on 09.10.2004
makes it clear that the plaintiff was not ready with the balance sale
consideration and the learned Trial Judge without appreciating these crucial
aspects, decreed the suit for specific performance and the order under
challenge is therefore, liable to be set aside. In support of the contentions, the
learned counsel relied on the decisions of the Hon’ble Supreme Court
19
NJS, J & JS, J
A.S.Nos.431, 494, 523 & 576 of 2014
reported in U.N.Krishnamurthy (Since Deceased) Through Legal
Representatives v. A.M.Krishnamurthy 4 , Shenbagam & Others v.
K.K.Rathinavel5, N.P. Thirugnanam (Dead) by LRs., v. R.Jagan Mohan
Rao6, Lourdu Mari David & Others v. Louis Chinnayya Arogiaswamy &
Others7 etc.,
27. Mr.A.S.C.Bose, learned counsel appearing on behalf of the D2 to D5 /
appellants in A.S.Nos.431 and 576 of 2014 made submissions inter alia that
the suit subject property originally belongs to Mr.Iska Anjaneyulu Reddy, the
husband of the 2nd defendant and she did not execute the Agreement of Sale
dated 24.07.2003(Ex.A1). He submits that the suit schedule property is a joint
family property and the same cannot be sold without D2 to D5 as signatories
to the Agreement of Sale. He further submits that as is evident from Ex.A1, it
was executed by defendant No.1 only and nowhere it was stated that
defendant No.1 is authorized to execute the said Agreement on behalf of the
2nd defendant. Drawing the attention of this Court to Ex.A7-Suit Notice dated
21.08.2004, he submits that a different version was sought to be projected as
if both the 1st defendant as well as the 2nd defendant have offered to sell the
suit schedule property to the plaintiff and that the transaction can be settled as
per the absolute discretion of defendant No.1 and that the presence of the 2 nd
defendant and consultation is not necessary. He submits that in fact, a specific
plea was taken in the written statement that the 2 nd defendant is not a
4
2022 SCC Online SC 840
5
2022 SCC OnLine SC 71
6
(1995) 5 SCC 115
7
(1996) 5 SCC 589
20
NJS, J & JS, J
A.S.Nos.431, 494, 523 & 576 of 2014
signatory to the Agreement of Sale-Ex.A1 and the same is not binding on her.
Be that as it may. He submits that as seen from the plaint averments, more
particularly, Para No.4, the plaintiff has knowledge that the 2nd defendant had
a share in the schedule property and in such circumstances, plaintiff should
have taken steps for getting the signatures of the 2nd defendant in the
Agreement of Sale dated 24.07.2003, even assuming that the plaintiff acted
upon the statement of the 1st defendant, that the 2nd defendant had impliedly
given her consent for the sale of the property in question, in the absence of
which the said agreement is not binding on the 2nd defendant.
28. Insofar as D3 to D5 are concerned, the learned counsel also submits
that as the 1st defendant is parting with the subject matter property, they filed
a suit for Partition vide O.S.No.243 of 2004 on the file of the Court of XIV
Additional Chief Judge(FTC), City Civil Court, Hyderabad, and the suit was
decreed in part vide Judgment dated 27.04.2011 (Ex.B7). Though the 1 st
defendant had stated about the filing of the said suit in his written statement,
the plaintiff has not taken any steps / filed any application in O.S.No.243 of
2004. Despite the said Partition Decree (Ex.B6), he submits that the learned
Trial Judge, taking an erroneous view, decreed O.S.No.37 of 2004 and that
the findings recorded by the learned Trial Court to the effect that a collusive
decree was obtained by the parties by filing O.S.No.243 of 2004 during
pendency of the suit in question, in a bid to defeat the rights of the plaintiff,
and that in view of the same, it can be said that Exs.B6 and B7 do not bind the
1st defendant are not tenable. Such a finding on the part of the learned Trial
21
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A.S.Nos.431, 494, 523 & 576 of 2014
Court, he submits that, is unsustainable and the conclusion that the suit
schedule property is the exclusive property of the 1st defendant and as such,
he can be directed to execute the Sale Deed in favour of the plaintiff, cannot
be appreciated.
29. The learned counsel further contends that once the property in question
belongs to Mr.Anjaneyulu Reddy i.e., the husband of the 2nd defendant, after
his death, the 2nd defendant got share and D3 to D5, who are the grand
children of the deceased Mr.Anjaneyulu Reddy also got a share in the joint
family property. In any event, the 1st defendant has no right to part with the
suit schedule property of the 2nd defendant or the defendants 3 to 5. While it is
not in dispute that D2 to D5 had never executed any agreement much less,
the Agreement dated 24.07.2003 (Ex.A1) in favour of the plaintiff, he contends
that by executing the Ex.A1-Agreement of Sale dated 24.07.2003 in favour of
the plaintiff, the 1st defendant has no right to part with the suit schedule
property, which belongs to the joint family. He contends that Ex.A1-Agreement
of Sale dated 24.07.2003 in favour of the plaintiff is not a valid document and
relies on the decision of the Hon’ble Supreme Court reported in Balmukand
v. Kamla Wati & Others8. He submits that the agreement in question dated
24.07.2003 (Ex.A1), is not valid without defendants D2 to D5 being parties to
it. He rests his arguments stating that mere issuance of Pattadar Pass Book
and Title Deed (Ex.A11) does not confer any title on the 1st defendant and
revenue records are not conclusive proof of title over the land in question as
8
AIR 1964 SC 1385
22
NJS, J & JS, J
A.S.Nos.431, 494, 523 & 576 of 2014
held by the Hon’ble Supreme Court in P.Kishore Kumar v. Vittal K.Patkar9
and seeks to allow the appeals filed by D2 to D5 by setting aside findings /
conclusions adverse to them.
30. Mr.Ch.Lakshmi Narayana, learned counsel for the plaintiff refuting the
said contentions, advanced detailed arguments. He submits that Ex.A1 dated
24.07.2003 executed by the 1st defendant deals with the action to be initiated
on the failure of either party to the said agreement vide Clause Nos.7 and 8
and contrary to the same, the 1st defendant straightaway issued the
Termination Notice dated 16.04.2004 (Ex.B3), without granting extension of
time. Elaborating the same, the learned counsel submits that the 1 st
defendant, if at all, has to file a suit for Specific Performance under the Clause
No.8 of the Agreement and shall not directly proceed with the cancellation.
He submits that though the time is the essence of the contract, as admittedly
the 1st defendant received the amounts after 15.10.2003, the time is not of the
essence of the contract. He submits that admittedly, an amount of
Rs.79,00,000/- including the advance amount of Rs.30,00,000/- was paid
towards the sale consideration and the balance was only Rs.12,65,000/-, that
the plaintiff was ready to pay the said amount as categorically stated in the
plaint. He submits that the learned Trial Judge, after appreciating the
evidence adduced in support of the plaintiff’s case had rightly observed that
the plaintiff has come forward with the categorical pleadings about his
readiness with the balance sale consideration and rightly decreed the suit in
9
2023 Live Law (SC) 999
23
NJS, J & JS, J
A.S.Nos.431, 494, 523 & 576 of 2014
favour of the plaintiff. He also contends that the judgments relied on by the
learned Senior Counsel are not applicable to the facts of the case on hand.
31. With regard to the contentions about the issuance and receipt of the
Termination Notice(Ex.B3) dated 16.04.2004, he submits that the same were
sent to three different addresses and though it was mentioned in the said
notice to the effect that since August, 2003, the 1st defendant was requesting
for payment of balance sale consideration and for registration of the Sale
Deed the plaintiff failed to make the payment before 15.10.2003, the evidence
on record i.e., Exs.X1 to X50 would go to show that an amount of
Rs.49,00,000/- was paid on different dates i.e., from 14.08.2003 to
31.10.2003. Thus, the learned counsel submits that about 86% of the total
sale consideration i.e., Rs.30,00,000/- advance + Rs.49,00,000/- by way of
D.Ds., was paid and only 14% of the balance sale consideration is due
excluding the interest on the delayed payments, which comes to
Rs.14,23,900/-. He submits that under the said circumstances, as the time
cannot be said to be of the essence of the contract, the Termination of the
Agreement of Sale by the 1st defendant vide Ex.B3 dated 16.04.2004 is not
valid. Further, referring to Ex.A7 i.e., the suit Notice dated 21.08.2004, the
learned counsel submits that no reply was issued to the said notice and in the
meanwhile, 1st defendant filed a Caveat on 16.06.2004 vide Ex.A5 by making
a categorical statement that he is the owner of the property in question and
entered into an Agreement of Sale for a sum of Rs.91,65,000/- on 24.07.2003.
He also submits that Ex.A11 i.e., Pattadar Pass Book and Title Deed issued
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NJS, J & JS, J
A.S.Nos.431, 494, 523 & 576 of 2014
on 12.07.1996 in respect of the subject matter property stands in the name of
the 1st defendant. In the said circumstances, he submits that the plaintiff filed
the present suit for Specific Performance of Agreement of Sale dated
24.07.2003.
32. The learned counsel also contends that O.S.No.242 of 2004 filed by the
defendants 3 to 5 against defendants 1 and 2 for Partition of the suit schedule
properties therein which includes the property in question, is a collusive suit
between the defendants 1 to 5 and in any event, the Judgment and Decree in
the said suit is not binding on the plaintiff herein. Further, that the plaintiff
herein is having first charge under Ex.A1 dated 24.07.2003 and by virtue of
Section 52 of the Transfer of Property Act, the rights of the plaintiff herein are
protected. He also contends that the conduct of the defendants 1 to 5, on a
close reading of the oral evidence makes it amply clear that their only intention
is to evade the Agreement of Sale, with oblique motives. He submits that in
fact, the plaintiff lodged a criminal complaint under Section 420 of Indian
Penal Code against the 1st defendant and Criminal Petition No.4052 of 2009
filed by the 1st defendant under Section 482 of Criminal Procedure Code was
dismissed by the erstwhile High Court of Judicature of Andhra Pradesh at
Hyderabad vide Order dated 09.09.2010. He submits that the learned Trial
Judge, after detailed consideration of the evidence i.e., oral and documentary
adduced on both sides, had decreed the suit by assigning cogent reasons and
there is no illegality in the order under challenge. Making the said
submissions and placing reliance on the decisions reported in Baddam
25
NJS, J & JS, J
A.S.Nos.431, 494, 523 & 576 of 2014
Prathap Reddy v. Chennadi Jalapathi Reddy10, Govindbhai Chhotabhai
Patel & Ors., v. Patel Ramanbhai Mathurbhai (Civil Appeal No.7528 of 2019
dated 23.09.2019) and C.Haridasan v. Annappath Parakkattu Vasudeva
Kurup & Others11, the learned counsel seeks dismissal of the appeals.
33. On a detailed consideration of the submissions made on behalf of the
respective parties, the points that arise for adjudication by this Court are :
(i) Whether the decree for Specific Performance of Agreement of
Sale can be granted in the absence of a relief / prayer seeking a
declaration that the cancellation of Agreement of Sale-Ex.A1 is
bad or illegal?
(ii) Whether the plaintiff in O.S.No.37 of 2004 is disentitled to the
decree for specific performance of Agreement of Sale Ex.A1
dated 24.07.2003 on the premise that he approached the Court
by suppressing Ex.B3-Notice dated 16.04.2004 cancelling Ex.A1?
(iii) Whether the plaintiff was ready and willing to perform his part of
contract as envisaged under Section 16 (c) of Specific Relief Act,
1963?
(iv) Whether the Decree and Judgment of the Trial Court warrants
interference in the facts and circumstances of the case?
34. Before answering the points under consideration, it may be appropriate
to refer to the Agreement of Sale Ex.A1 dated 24.07.2003, which is
reproduced hereunder:
10
2008 (5) ALD 200
11
2023 Live Law (SC) 31
26
NJS, J & JS, J
A.S.Nos.431, 494, 523 & 576 of 2014Agreement of Sale
This Agreement of Sale is made on this the 24th day of July, 2003 at
Hyderabad by and between:
Dr.ISKA VIJAYAKUMAR REDDY, S/O.LATE SRI ANJANEYULU REDDY,
R/o.24/a, S.R.Nagar, Hyderabad.
Hereinafter referred as “Vendor” of the one part.
AND
MR.N.VIJAYA KRISHNA, S/o.LATE SR.N.MALAKONDAIAH, R/o.Buchi Reddy
Palem, Nellore Dist.,Hereinafter referred as “Purchaser” of the other part.
WHEREAS the vendor herein offered to sell the schedule agricultural wet land
admeasuring of 6 acres and 3 cents situated at Nellore Bit II bearing survey
Nos.1125, 1126, 1130/A and 1131/A, for a total sale consideration of
Rs.91,65,600/-(Rupees Ninety One Lakhs Sixty Five Thousand Six Hundred
only) (@ Rs.15,20,000/- per acre).
NOW THIS AGREEMENT OF SALE WITNESSETH
1.In pursuance of this Agreement of Sale for Rs.91,65,600/- (Rupees Ninety One
Lakhs Sixty Five Thousand Six Hundred only) as advance of the sale
consideration towards the schedule property.
2. The purchaser has agreed to pay the sum of Rs.51,65,600/- (Rupees Fifty
One Lakhs Sixty Five Thousand Six Hundred only) on or before 30th August,
2003 and the balance sale consideration of Rs.10,00,000/- (Rupees Ten Lakhs
only) shall be paid at the time of registration and purchaser hereby agrees to get
the land registered in his name on or before 15th October, 2003.
3. If the purchaser fail to pay the above said sum of Rs.51,65,600/- (Rupees Fifty
One Lakhs Sixty Five Thousands Six Hundred only) within the above stipulated
time (i.e., on or before 30th August, 2003), the purchaser hereby agrees to pay
36% interest per annum for the remaining balance amount. And agrees to get the
land registered in his name on or before 15th October, 2003.
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A.S.Nos.431, 494, 523 & 576 of 2014
4. That the vendor has agreed to execute the sale deed in favour of the
purchaser at the purchaser’s own cost on receipt of the balance sale
consideration.
5. That the stamp duty and registration charges required for the sale deed shall
be borne by the purchaser only.
6. That the vendor and the purchaser hereby declare and state that the
consideration agreed is most reasonable and they further declare and state that
they shall not dispute on the same.
7. If the vendor failed to comply any of the terms of the agreement or failed to
execute the registered sale deed in favour of the purchaser herein the purchaser
will be entitled enforce by way of specific performance holding the vendor liable.
8.If the purchaser fail to comply with the terms of this agreement or fails to pay
the balance sale consideration as stipulated above or on the extended date the
vendor is entitled to enforce the terms of this agreement by way of specific
performance holding the purchaser liable for all costs and expenses arising
thereof and the vendor shall have full rights to sell the schedule property at his
own will and discretion.
In witness where of the parties above named have set their hands on the
day, month and year firms above mentioned.
Vendor Purchaser
Witnesses:
1.
2.
Point No.1:
35. Admittedly, even as per the 1st defendant, there is no dispute with
regard to execution of Ex.A1-Agreement of Sale dated 24.07.2003 by him and
the receipt of Rs.30,00,000/- as advance towards the sale consideration in
respect of the suit schedule property. Though, the above referred terms
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NJS, J & JS, J
A.S.Nos.431, 494, 523 & 576 of 2014
stipulates the time within which the balance sale consideration i.e.,
Rs.51,65,600/-, has to be paid, a reading of Clause No.8 contemplating
extension of date by the vendor for payment of balance consideration would
make it clear that time is not of the essence of the contract. The learned
counsel for the 1st defendant had also not emphasized much that time is of the
essence of the contract. A further reading of Clause / Conditions 7 and 8 in
the Agreement of Sale goes to show that both the purchaser / plaintiff and the
vendor / 1st defendant have the right to enforce the agreement by way of
Specific Performance, in the event of failure on their part in complying with the
terms of the agreement. The vendor was also conferred with a specific right to
sell the schedule property at his own will and discretion. While it is the case of
the 1st defendant that as there is a failure on the part of the plaintiff in payment
of balance sale consideration within the stipulated time, the Agreement of Sale
dated 24.07.2003 was terminated / cancelled vide Ex.B3, Notice dated
16.04.2004, it is the contention of the plaintiff that payment of Rs.49,00,000/-
by way of Demand Drafts to the 1st defendant’s mother i.e., the 2nd defendant
and his sons as also other relatives of the 1st defendant, and receipt of the
same without any demur would establish that the said termination notice was
issued only with a view to evade the execution of the regular Sale Deed and
the same is not tenable. In this context, it may be appropriate to mention here
that though in the affidavit filed in lieu of the chief examination, the plaintiff /
P.W.1 stated that he did not receive Ex.B3-Notice dated 16.04.2004
cancelling Ex.A1, in the cross examination, it was elicited that the notice was
served and the acknowledgments in respect of the same were exhibited vide
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A.S.Nos.431, 494, 523 & 576 of 2014
Ex.B5. The learned Trial Court, had also recorded a categorical finding at
Para No.28 (iv) while answering additional issues 2 and 3, that it cannot be
said that the plaintiff has not received any such termination notice.
36. While contending that the said finding is not challenged by the
plaintiff by way of Appeal / cross examination, the learned Senior Counsel
contended that in the absence of any prayer seeking declaration that the
cancellation of Agreement of Sale Ex.A1 is illegal, the Trial Court was not
right in decreeing the Suit for Specific Performance.
37. In I.S.Sikandar referred to supra, the Hon’ble Supreme Court was
dealing with an appeal filed against the Judgment and order dated
08.12.2008 passed by the High Court of Karnataka, whereby the Judgment
and Decree of the Trial Court was reversed and a decree for Specific
Performance of the Agreement of Sale in favour of the plaintiff was
granted. The plaintiff who was respondent No.1 before the Apex Court
instituted O.S.No.2012 of 1985 before the XI Additional City Civil Judge,
Bangalore City for grant of a decree for Specific Performance in respect of
the suit schedule property on the basis of an Agreement of Sale dated
25.12.1983 and also for grant of Permanent Injunction.
38. It is the case of the plaintiff therein that the defendants got issued a
legal notice calling upon the plaintiff to comply with his part of contract by
paying balance sale consideration, failing which legal action will follow, for
which the plaintiff issued a reply calling upon the defendants to execute the
conveyance deed and receive the balance sale consideration by securing
30
NJS, J & JS, J
A.S.Nos.431, 494, 523 & 576 of 2014
draft sale deed. However, the defendants subsequently declined to accede to
his request and stated that the Agreement of Sale was rescinded by the
defendant. After formulating the issues for consideration, the learned Trial
Judge partly decreed the suit, however without granting the relief prayed for
grant of decree for specific performance. Aggrieved by the same, the plaintiff
carried the matter to the High Court, which allowed the appeal and passed the
decree of specific performance in favour of the plaintiff/appellant. On appeal,
the Hon’ble Supreme Court of India formulated the questions of law, including
that “whether the original suit filed by the plaintiff seeking a decree for specific
performance against defendants in respect of the suit schedule property
without seeking the declaratory relief with respect to the termination of
Agreement of Sale, rescinding the contract, is maintainable in law and
answered the same at para Nos.37 and 38, which reads as follows:
“37. As could be seen from the prayer sought for in the original suit, the plaintiff
has not sought for declaratory relief to declare the termination of agreement of
sale as bad in law. In the absence of such prayer by the plaintiff the original suit
filed by him before the trial court for grant of decree for specific performance in
respect of the suit schedule property on the basis of agreement of sale and
consequential relief of decree for permanent injunction is not maintainable in law.
38. Therefore, we have to hold that the relief sought for by the plaintiff for grant of
decree for specific performance of execution of sale deed in respect of the suit
schedule property in his favour on the basis of non-existing agreement of sale is
wholly unsustainable in law.”
The Hon’ble Supreme Court of India while answering the other
questions of law ultimately allowed the appeal and set aside the judgment and
decree of the High Court.
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A.S.Nos.431, 494, 523 & 576 of 2014
39. In Mohinder Kaur case (referred to supra) the unsuccessful
defendants aggrieved by the concurrent findings and decree granting specific
performance of the agreement, carried the matter by way of appeal to the
Hon’ble Supreme Court of India. It was urged that the suit for specific
performance simplicitor was not maintainable in the absence of any challenge
to the cancellation of the agreement and seeking consequential declaratory
relief. The Hon’ble Supreme Court of India while observing that the
Agreement of Sale was cancelled by the appellant and the respondent-plaintiff
never challenged the communication of cancellation, by referring to the
decision in I.S.Sikindar(Dead) by LRs., v. K.Subramani and Others 12 ,
allowed the appeal and set aside the impugned orders.
40. In the present case, no such declaratory relief that Ex.B3 dated
16.04.2004 i.e., Notice of termination is bad in law was specifically sought for,
except a Decree directing the defendants to execute a Registered Sale Deed
in favour of the plaintiff in respect of the plaint schedule land in terms of the
suit Agreement of Sale and in default of compliance thereof by the defendant,
to execute such Sale deed through Court and put the plaintiff in possession of
the suit property.
41. In the light of the above referred judgments of the Hon’ble Supreme
Court, the contention advanced on behalf of the 1st defendant / appellant that
in the absence of the prayer seeking a declaration that the Notice of
Termination dated 16.04.2004 (Ex.B3) as bad in law, the learned Trial Judge
12
(2013) 15 SCC 27
32
NJS, J & JS, J
A.S.Nos.431, 494, 523 & 576 of 2014
went wrong in decreeing the suit in favour of the plaintiff, merits acceptance.
The point No.1 is answered in favour of the 1st defendant in O.S.No.37 of
2004.
Point No.2:
42. Referring to the oral and documentary evidence adduced on behalf of
both sides, the learned Senior Counsel contended that though the plaintiff
received the Cancellation Notice dated 16.04.2004 (Ex.B3), the said aspect
was not stated in the plaint. He submits that non-disclosure of the said crucial
aspect amounts to suppression of fact and the learned Trial Court, in the light
of the suppression of the receipt of Termination of Notice (Ex.B3) should have
rejected the relief for Specific Performance of Agreement of Sale on the
ground that, the plaintiff approached the Court with unclean hands and as
such not entitled to the equitable relief of Specific Performance.
43. On an appreciation of the oral evidence, it is clear that the plaintiff
feigned ignorance / issuance of Ex.B3-Terimination Notice dated 16.04.2004,
much less, the receipt of the same. In Para No.9 of the plaint in O.S.No.37 of
2004, it was inter alia stated as follows:
“The plaintiff was shocked to receive a caveat copy from the defendant No.1 on
23.06.2004 which indicated as though the defendant have given a notice dated 16.04.2004
and that it was served on the plaintiff herein. No such notice was ever addressed or
received by the plaintiff herein.”
44. The plaint averments were reiterated in the plaintiff’s chief examination
affidavit and in the cross examination, he stated that he did not receive Notice
dated 16.04.2004, that the signatures contained in three postal
33
NJS, J & JS, J
A.S.Nos.431, 494, 523 & 576 of 2014
acknowledgments shown to him are not his signatures. However, he had not
denied the factum of receipt / service of Ex.B3-Termination Notice dated
16.04.2004 sent through registered post, nor disputed the correctness of the
addresses to which the Notices were sent. In such circumstances, and in view
of the documentary evidence, Exs.B4 and B5 (Postal receipts and
acknowledgments), this Court has no hesitation to hold that the Termination
Notice dated 16.04.2004 was received by the plaintiff and without disclosing
the same, the suit was filed by suppressing the facts and with unclean hands
and as such, the conduct of the plaintiff disentitles him from securing the relief
of Specific Performance. Yet another important aspect is the false pleas
taken by the plaintiff which comes in the way of granting a decree for specific
performance.
45. In the plaint, it is averred as though, the 1st defendant executed the
Agreement of Sale(Ex.A1) dated 24.07.2003 on his behalf and representing
the interest of his mother to the sale transaction as revealed in Letter dated
31.12.2003 (Ex.A2). While nothing concrete could be conceived as sought to
be projected, the said Letter was disputed and as per the evidence of the
Expert (P.W.9), the signature in the Letter tallies with the signature of 1 st
defendant. Except the said evidence, which is a weak piece of evidence,
nothing was brought on record in corroboration to give weight to it and to
conclude that the Agreement of Sale was executed covering her interest also.
46. Further, it is not the case of the plaintiff, as seen from the plaint, that the
subject matter land is the exclusive property of the 1st defendant nor was that
34
NJS, J & JS, J
A.S.Nos.431, 494, 523 & 576 of 2014
the Agreement of Sale dated 24.07.2003, executed in his favour was within
the knowledge of the 2nd defendant. Whereas in the legal notice dated
21.08.2004 (Ex.A7) got issued to the defendants 1 and 2, it is stated as
follows:
“To
1. Iska Vijaya Kumar Reddy,
S/o.Anjaneyulu Reddy,
24/A, Sanjeeva Reddy Nagar,
Hyderabad – 500 038.
2. Iska Sreedevamma,
W/o.Anjaneyulu Reddy,
24/A, Sanjeeva Reddy Nagar,
Hyderabad – 500 038.
We are instructed by our client Sri N.Vijayakrishna, son of Malakondaiah,
residing at Ramnagar 1st line at Ongole of Prakasam District to issue both of
you the notice as follows:
No.1 of you 1st the son of No.2 of you. No.2 of you is residing with No.1 of
you and is under his care and protection. The Notice schedule property is
originally the property of Iska Anjaneyulu Reddy, the father of No.1 of you
and the husband of No.2 of you. It is represented to have devolved upon both
of you by way of a bequeath. No.1 of you is also managing and administering
the properties of No.2 of you under her authority.
While so, where the notice schedule property is found not expedient or
convenient for your enjoyment, both of you have offered to sell the said
property to our client, for the beneficial prospects. No.2 of you have stated to
our client that the said transaction can be settled at the absolute discretion of
No.1 of you and that her presence & consultation is not necessary. By then
No.2 of you is very old and is suffering with ailments and is not in a position to
move on that the bargain for the price of the schedule property is made with
No.1 of you and eventually it is settled & agreed at Rs.15,20,000/- per acre.
Thus the total price amount of the schedule property was agreed at
Rs.91,65,600/-. However, it is further agreed that the final price amount will
be ascertained after physical verification and measurement of the schedule
land in the presence of our client.
There upon having created confidence on both of you, No.1 of you
himself got prepared an Agreement of Sale for the schedule property on 24-
35
NJS, J & JS, J
A.S.Nos.431, 494, 523 & 576 of 201407-2003 and handed over the said document to our client and our client had
received it. Even without verification of the total contents therein, out of the
said confidence. As on the date of the said agreement, out client has already
paid an advance amount and Rs.30,00,000/- to No.1 of you. The said
transaction was also informed to No.2 of you on the same day of the
Agreement and No.2 of you even t hen reiterated that she need not be
consulted or informed. The other family members of No.1 and 2 of you were
also aware of the above said transaction and its lucrativeness.
Thereafter our client had made certain payments towards the sale
consideration, which are paid at the instance and instructions of No.1 of you
the particulars of which are detailed hereunder.”
47. A reading of the above extracted portion of the notice indicates that
some discussions took place with the plaintiff and both defendants 1 and 2
offered to sell the property in question to the plaintiff and the 2 nd defendant /
mother of the 1st defendant purportedly stated that the transaction can be
settled at the absolute discretion of the 1 st defendant and her presence and
consultation is not necessary. Further, that the plaintiff without verification of
the contents of the Agreement of Sale dated 24.07.2003 signed the same. If
that be the case, no reasons are forth coming as to why no steps were taken
to obtain an agreement or consent from the 2nd defendant for selling the
property in question, in continuation / consonance with the Agreement of Sale
Ex.A1 dated 24.07.2003, more particularly when the plaintiff is aware that the
property in question belongs to 1 st defendant and 2nd defendant. That apart,
the version in the plaint is contrary to the version in the legal notice and
amounts to taking a false plea. On this ground alone, the relief of specific
performance which is discretionary in nature is liable to be rejected.
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48. In Lourdu Mari David case (referred to supra), the Hon’ble Supreme
Court of India dealt with an appeal arising under the provisions of the Specific
Relief Act. It reiterated that the party who seeks to avail the equitable
jurisdiction of a court and specific performance being equitable relief, must
come to the court with clean hands and that the party who makes false
allegations does not come with clean hands and is not entitled to the equitable
relief. While opining that the Courts below rightly refused to exercise the
discretion of legal principles to grant specific performance, the Hon’ble Court
dismissed the appeal holding that a person who has come to Court with a
false plea is not entitled to the equitable relief of specific performance.
49. At this juncture, it may be appropriate to refer to the contention
advanced on behalf of the plaintiff with regard to issuance of Ex.B3-
Termination Notice that the same was issued straightaway by merely stating
that the plaintiff has not adhered to the time schedule stipulated in the
Agreement of Sale. He submits that even as per Clause No.8 of Ex.A1, the 1 st
defendant can only seek enforcement of the terms of the Agreement by way
of Specific Performance and the Agreement cannot be terminated. He also
submits that Ex.B3-Termination Notice, in the light of the agreement
conditions is not valid in law and the learned Trial Judge rightly appreciated
that the termination of contract by the 1st defendant vide Ex.B3-Termination
Notice dated 16.04.2004 is not valid, as the time is not the essence of the
contract.
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50. However, this Court is not inclined to accept the said submissions as
the plaintiff had not only suppressed the receipt of the said termination notice,
but also not sought relief of declaration that the notice is illegal and not valid in
Law. It may be pertinent to refer to one more significant aspect here that the
learned Trial Court did not examine specific plea raised by the 1st defendant in
the written statement that there is no enforceable agreement in view of the
Termination Notice dated 16.04.2004, which is sine-quo-non for granting
decree for specific performance. In any event, as the plaintiff approached the
Court by pleading a false case, suppressing the facts i.e., the receipt of the
Termination Notice dated 16.04.2004, is not entitled for the decree for Specific
Performance. The learned Trial Court, without examining these aspects in the
correct perspective, let alone by framing an appropriate issue, granted the
relief of Specific Performance and the same is not sustainable. The Point
No.2 is answered accordingly.
Point No.3:
51. Insofar as the readiness and willingness on the part of the plaintiff, the
learned Senior Counsel for the 1st defendant contended that the plaintiff has
not only plead but also prove that he is ready as also willing to perform the
obligation with regard to payment of the sale consideration. In this regard, the
plaintiff in his chief affidavit deposed that he is possessed of cash to pay the
entire balance of the sale consideration any day and even ready to deposit
the same as and when so ordered by the Court. Though, nothing is elicited in
the cross examination with regard to his financial capacity or readiness and
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willingness to deposit the balance sale consideration, it is for the plaintiff to
establish that he is not only ready with the money, but also ready to deposit
the same and perform his part of the obligation by adducing evidence. Except
a mere statement that he is ready, no evidence was produced evidencing the
availability of the amount in his bank account. None of the witnesses
examined by him testified about the readiness or financial capacity of the
plaintiff to pay the balance sale consideration, except denying the suggestion
that he has no capacity to pay (P.W.3).
52. In Shenbagam‘s case referred to supra, the Hon’ble Supreme Court of
India was dealing with an appeal filed against the judgment of the learned
Judge of the High Court of Judicature at Madras. The defendants in a suit for
specific performance aggrieved by the order of the trial Court granting decree
for specific performance filed an appeal and the 1st Appellate Court affirmed
the order of the trial Court. In the Second Appeal, the High Court confirmed
the same. Before the Hon’ble Supreme Court of India, it was inter alia
contended that the trial Court failed to frame an issue on (i) Whether the
respondent-plaintiff was ready and willing to performance his part of
agreement to sell (ii) Whether the respondent was ready to perform the
contract and merely noted that he had sufficient means to purchase the suit
property etc. The Hon’ble Court after a detailed analysis of the matter with
reference to a catena of decisions allowed the appeal and set aside the order
of the High court of Judicature at Madras. In para-19 the Hon’ble Supreme
Court of India opined that the failure of the trial Court to frame an issue
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A.S.Nos.431, 494, 523 & 576 of 2014
relating to the readiness and willingness of the plaintiff to perform the contract
is also critical in declining the remedy of specific performance. Reference
was also made to the decision of the Hon’ble Supreme Court of India in
P.Meenakshisundaram v P. Vijayakumar13, wherein at para No.8 it was inter
alia held that “as regards suit for specific performance, the law is very clear
that the plaintiff must plead and prove his readiness and willingness to
perform his part of the contract all through i.e., right from the date of the
contract till the date of hearing of the suit.”
53. It also referred to J.P.Builders v. A.Ramdas Rao14, wherein it was
held that in a suit for Specific Performance, the plaintiff must allege and prove
continuous “readiness and willingness” to perform the contract on his part
from the date of the contract and the onus is on the plaintiff. Referring to the
opinion expressed in Sub-Para No.27 of Para No.14 of the said judgment that
readiness and willingness to perform the part of the contract has to be
determined / ascertained from the conduct of the parties, in Para No.15, the
Hon’ble Supreme Court explained that the ‘readiness’ refers to the financial
capacity and ‘willingness’ refers to the conduct of the plaintiff wanting the
performance. In Para No.29, the Hon’ble Apex Court, opined that the
foundation of a suit for Specific Performance lies in ascertaining whether the
plaintiff has come to the court with clean hands and has, through his conduct,
demonstrated that he has always been willing to perform the contract and
further that in evaluating whether the respondent was ready and willing to
13
(2018) 15 SCC 80
14
(2011) 1 SCC 429
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perform his obligations under the contract, it is not only necessary to pay the
balance consideration, but also assess his conduct throughout the transaction
(Para No.30).
54. In U.N.Krishnamurthy‘s case referred to supra wherein the Hon’ble
Supreme Court of India was dealing with an appeal against a judgment and
decree of the High Court of Judicature at Madras, confirming the judgment
and decree of the learned Principal District Judge, granting relief of specific
performance of Agreement of Sale. The Hon’ble Apex Court while formulating
the question for determination as to whether the respondent-plaintiff has
proved his readiness and willingness to perform his part of contract or not,
interpreting Section 16(c) of the Specific Relief Act, 1963 at para No.24 opined
as follows:
“24. To aver and prove readiness and willingness to perform an obligation to pay
money, in terms of a contract, the plaintiff would have to make specific statements
in the plaint and adduce evidence to show availability of funds to make payment in
terms of the contract in time. In other words, the plaintiff would have to plead that
the plaintiff had sufficient funds or was in a position to raise funds in time to
discharge his obligation under the contract. If the plaintiff does not have sufficient
funds with him to discharge his obligations in terms of a contract, which requires
payment of money, the plaintiff would have to specifically plead how the funds
would be available to him. To cite an example, the plaintiff may aver and prove,
by adducing evidence, an arrangement with a financier for disbursement of
adequate funds for timely compliance with the terms and conditions of a contract
involving payment of money.”
Referring to earlier legal precedents the Hon’ble Apex Court at Para
No.45 held as follows:
“45. It is settled law that for relief of specific performance, the Plaintiff has to prove
that all along and till the final decision of the suit, he was ready and willing to
perform his part of the contract. It is the bounden duty of the Plaintiff to prove his
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A.S.Nos.431, 494, 523 & 576 of 2014readiness and willingness by adducing evidence. This crucial facet has to be
determined by considering all circumstances including availability of funds and
mere statement or averment in plaintiff of readiness and willingness, would not
suffice.”
The Hon’ble Supreme Court of India while concluding that the
respondent-plaintiff failed to discharge his duty to prove his readiness as well
as willingness to perform his part of contract by adducing cogent evidence,
set aside the orders passed by the trial Court as also the High Court and
allowed the appeal.
55. In the case of N.P. Thirugnanam (Dead) referred to supra, dismissing
the Special Leave Petition arising out of the matter under the Specific Relief
Act and while not interfering with the conclusions arrived by the trial Court as
well as the Division Bench of the High Court of judicature at Madras in
concluding that the plaintiff was not ready and willing to perform his part of
contract the Hon’ble Apex Court held as follows:
“5. It is settled law that remedy for specific performance is an equitable remedy
and is in 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 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 the 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 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 ill
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A.S.Nos.431, 494, 523 & 576 of 2014date 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 interfere
from the facts and circumstances whether the plaintiff was ready and was always
ready and willing to perform his part of the contract.”
56. In the case on hand, this crucial aspect as to readiness and willingness
on the part of the plaintiff, was not properly appreciated, much less by framing
an issue in that regard. That apart, the burden lies on the plaintiff about his
readiness to perform his obligations and establish that he was financially
capable of paying the balance consideration.
57. However, the plaintiff had not led any evidence that he was ready and
willing to perform his obligations under the agreement and in those
circumstances, more particularly, in the light of the legal position, the plaintiff
is not entitled for the relief of specific performance of Agreement of Sale. The
point is answered accordingly.
Point No.4:
58. Before answering the point, it may be relevant to refer to one of the
contentions advanced on behalf of the defendants 2 to 5 that the agreement
in question (Ex.A1) is not binding on them as they are not signatories to the
said agreement as also that the land sought to be sold through it belongs to
joint family. It is also contended that the Pattadar Passbook and Title Deed
i.e., Ex.A11, is not a document of title of the 1st defendant in respect of the
subject matter property. To appreciate the said contentions, a reference to
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the plaint averments and the evidence of the respective parties have to be
made. As per Para No.4 of the plaint in O.S.No.37 of 2004, it is the case of
the plaintiff that the 1st defendant represented that besides himself, his mother
Smt.Sreedevamma / the 2nd defendant, none else have any right, interest or
possession over the suit schedule property. In the chief affidavit, he reiterated
the same contents of the plaint. However, in the cross examination, he
deposed as follows:
“By the date of Ex.A1, I do not know whether the second defendant was having half
share in the suit schedule land. It is true it was mentioned in the plaint that at the time of
entering into the agreement I came to know through first defendant that the second
defendant is having half share in the plaint schedule land.”
59. The said statement is contrary to the contents of suit notice Ex.A7.
P.W.3, in his cross examination states that he does not know whether the
schedule property is the self acquired property or ancestral property of
defendant No.1. P.W.8, who deals with land transactions states that all the
defendants signed in Ex.A1. In cross examination for defendant No.2 he
states that plaint schedule property is ancestral property; but denies the
suggestion that the defendant No.1 is not the absolute owner of the plaint
schedule property. Irrespective of the fact whether the 1st defendant
represented that he and his mother / 2nd defendant alone have rights in the
property in question, it is for the plaintiff, being the purchaser of the property
to ascertain the correctness of the ownership or otherwise of the title before
entering into Agreement of Sale.
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60. From a reading of the plaint averments, it appears as though the
plaintiff is aware even as on the date of entering into Agreement of Sale
(Ex.A1) dated 24.07.2003, that atleast 2nd defendant has a right over the
property in question. In such an event, it is incumbent on the part of the
plaintiff to enter into an Agreement of Sale with the 1st defendant along with
his mother / 2nd defendant and nothing came out in the evidence explaining
the reasons as to why Ex.A1-Agreement was entered into with the 1st
defendant alone and nothing was mentioned therein to the effect that the
agreement is being entered into on behalf of the 2 nd defendant also, leave
apart whether the defendants 3 to 5 have also share in the property in
question, more particularly when the Agreement of Sale dated 24.07.2003
was executed at Hyderabad and prior to that negotiations / discussions took
place between the plaintiff and defendant Nos.1 & 2 as per the contents of
Ex.A7.
61. In the affidavit filed in lieu of the chief examination, the 2nd defendant /
D.W.2 categorically stated that defendant No.1 could not have represented
her interest for sale of the suit schedule property, as she had not expressly
authorized him to do so and that she was not aware of the Agreement of Sale
dated 24.07.2003 (Ex.A1) and as to what transpired between the plaintiff and
defendant No.1. Further, that the plaintiff is not entitled to enforce the suit
agreement against her as she was not party to the Agreement of Sale dated
24.07.2003 (Ex.A1). In the lengthy cross examination, nothing could be
elicited to establish that the Agreement of Sale (Ex.A1) was executed by 1st
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A.S.Nos.431, 494, 523 & 576 of 2014
defendant with her consent / authorization, let alone a suggestion in that
regard. Nothing worth mentioning was brought on record to arrive at a
conclusion that she is speaking falsehood and her evidence is not trust
worthy.
62. Further, it is not in dispute that the Agreement of Sale was executed by
the 1st defendant only, but Ex.A11 i.e., Pattadar Pass Book and Title Deed in
favour of the 1st defendant would alone is not conclusive proof that he is the
sole owner of the subject matter property. In P.Kishore Kumar‘s case, the
Hon’ble Supreme Court reiterated the settled position in Law that revenue
records are not documents of title. That apart, the sons of the 1 st defendant
filed O.S.No.243 of 2004 seeking Partition of the plaint schedule properties
therein which includes the subject matter land in question. In this regard,
though the learned counsel for the plaintiff argued that the said suit is
collusive in nature and only with a view to avoid the execution of Sale Deed
pursuant to the Agreement of Sale (Ex.A1) dated 24.07.2003, the same was
filed, nothing worth mentioning was elicited in the cross examination of D3 to
D5. It is also not the specific case of the plaintiff that the subject matter
property belongs to exclusively to the 1st defendant. Had it been so, he would
not have made defendant No.2 as a party to the suit and seek a direction to
execute a Registered Sale Deed in favour of the plaintiff. Though, the
material on record goes to show that certain amounts were paid to the 2 nd
defendant, purportedly on the instructions of the 1st defendant, even as per
the evidence of the plaintiff’s witnesses (P.Ws.3 and 8) to avoid income tax
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issues, the amounts were paid to the kith and kin of the 1st defendant.
However, in the absence of any agreement executed by the 2nd defendant for
sale of her share in the subject matter property, no decree for specific
performance of Agreement of Sale in respect of the property which included
her undivided share, could have been granted by the learned Trial Court.
63. One of the submissions made on behalf of the plaintiff is that
Agreement of Sale dated 24.07.2003 will have first charge. But it is not in
dispute that the children (D3 to D5) of the 1st defendant are not signatories to
the said Agreement of Sale and as such, the rights claimed by them will not
be effected. Further, the finding recorded by the learned Trial Judge, to the
effect that the suit in O.S.No.243 of 2004 is collusive in nature, is not valid.
Even otherwise, unless the preliminary decree dated 27.04.2011 is declared
as nullity by a competent Court, it will remain legally valid and in those
circumstances, no decree for specific performance in respect of the subject
matter property can be granted. The learned District Judge, in the considered
view of this Court overlooked these crucial aspects and the order under
challenge warrants interference by this Court.
64. Coming to the findings recorded by the learned Trial Court with
reference to the amount of Rs.79,00,000/- stated to have been paid towards
the sale consideration of the subject matter land, the 1st defendant himself
admitted the receipt of Rs.30,00,000/-. So far as the amount to a tune of
Rs.49,00,000/- transmitted by way of Demand Drafts into the accounts of the
kith and kin of the 1st defendant as per the instructions purportedly given by
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him, the evidence on record clearly establishes that amounts were credited to
the bank accounts of the 2nd defendant and other relations of 1st defendant. It
is not the case of the 1st defendant that there are other transactions between
plaintiff and the 1st defendant and the amounts paid pertain to the said
transactions. Obviously, to evade payment of tax, the arrangement of paying
the sale consideration through Demand Drafts as per the instructions of the 1 st
defendant was made. Such an arrangement would not bind the defendants 2
to 5, in the absence of any evidence brought on record that the same is within
their knowledge. Be that as it may. The plaintiff could not succeed in
establishing that except Ex.D1, no others have right / interest over the subject
matter property. The learned Trial Court without proper appreciation of the
evidence, recorded its conclusions which are not valid. In such circumstances,
the decree directing the payment of balance sale consideration of
Rs.12,65,000/- to the 1st defendant and to obtain a Registered Sale Deed
from him, is unsustainable.
65. In Balmukand (referred to supra) case, the suit for specific
performance of contract of sale instituted by the appellant before the Hon’ble
Supreme Court of India was dismissed. Upon appeal, the High Court of
Punjab while upholding the dismissal of claim for specific performance,
modified the decree of trial Court and ordered the defendants to repay the
plaintiffs the earnest money. Aggrieved by the rejection of the claim for
specific performance further appeal was filed. In the attending facts and
circumstances of the case, the Hon’ble Supreme Court of India while
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observing that the adult members of the family are well within their rights in
saying that no part of the family property could be parted with or agreed to be
parted with by the Manager on the ground of alleged benefit to the family
without consulting them, was not inclined to interfere with the orders passed
by the Courts below, and dismissed the appeal.
66. Insofar as the findings recorded by the learned Trial Court in respect of
the other documents, Ex.A3 is a letter dated 16.03.2004 and A4 is an undated
letter allegedly written by the 1st defendant to the plaintiff. However, as seen
from the oral and documentary evidence, nothing was elicited to drive home
that the letters were written by the 1st defendant. More particularly, as Ex.A3
does not bear the signature, except an initial and Ex.A4 is unsigned. In such
circumstances, the view of the learned Trial Judge that the same can be taken
into consideration along with Ex.A2 dated 31.12.2003 is not tenable. So far as
the finding recorded in respect of Ex.A2, no doubt, as per the evidence of the
hand writing Expert (P.W.9), the hand writing / signature of the defendant
No.1 tallies with his signatures on the contemporaneous documents. Ex.A2,
as opined earlier, is a weak piece of evidence. No evidence in corroboration
of the same was adduced. The plaintiff could not prove the payment of Rs.9
lakhs on 10.10.2003 and Rs.10 Lakhs on 30.10.2003 referred to therein.
67. The Hon’ble Supreme Court in Chennadi Jalapathi Reddy‘s case
referred to supra, summarized the law with regard to probative value of the
report and testimony of expert witness under Section 45, 46 etc., of the Indian
Evidence Act and reiterated that the Court must be cautious while evaluating
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A.S.Nos.431, 494, 523 & 576 of 2014
the expert witness, which is weak type of evidence and not substantive in
nature, that it may not be safe to solely rely upon such evidence and the Court
may seek independent and reliable corroboration in the facts of the given
case. It also opined that mere expert evidence as to a fact is not regarded as
conclusive proof of it. Reference to the decision of the Constitution Bench of
the Apex Court in Shashi Kumar Banerjeev Subodh Kumar Banerjee 15 is
also made, wherein it is observed that the evidence of handwriting expert can
rarely be given precedence over substantive evidence. In the facts of the said
case, the Hon’ble Supreme Court of India while holding that the appellant /
plaintiff complied with all the requirements for grant of specific performance of
the Agreement of Sale, reversed the judgment of the erstwhile High Court of
Andhra Pradesh at Hyderabad and restored the order of the trial Court
granting decree of specific performance of agreement of sale.
68. In the light of the expression of the Apex Court, the findings recorded by
the learned Trial Court in respect of Ex.A2 as also Exs.A3 and A4 cannot be
upheld. The various contentions advanced on behalf of the plaintiff /
respondent No.1, merits no appreciation, in view of the conclusions arrived at
with reference to Points 1 to 3.
69. In so far case law cited by the counsel for the plaintiff, decision of the
High Court in Baddam Prathap Reddy (referred to supra) was set aside by
the three (3) Member Bench of the Hon’ble Supreme Court of India in
Chennadi Jalapathi Reddy case (referred to supra).
15
AIR 1964 SC 529
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70. In Govindbhai Chotabhai Patel‘s case (referred to supra), the Hon’ble
Supreme Court of India was dealing with the order passed by the Hon’ble
High Court of Gujarat in a Second Appeal. The issue is with regard to the
execution of an alleged Gift Deed disputed by the plaintiffs-appellants and
where the suit properties are ancestral properties and the father of the
plaintiffs-appellants had no right to execute the Gift Deed etc. The High Court
after framing substantial questions of law set aside the judgment and decree
passed by the 1st appellate Court confirming the order of the trial Court after
referring to the relevant legal precedents on the issue, the Hon’ble Supreme
Court of India dismissed the appeal. The said decision is not applicable to the
facts of the case.
71. In C. Haridasan’s case(referred to supra), the two Member Bench of
the Hon’ble Supreme Court of India was dealing with the appeal against the
judgment of the High Court of Kerala at Ernakulam, whereby the High Court
allowed the regular First Appeal preferred by the original defendants and set
aside the judgment and decree passed by the trial Court decreeing the suit for
specific performance. Aggrieved by the same, the original plaintiff carried the
matter by way of appeal to the Hon’ble Supreme Court of India. Lordship Mr.
Justice M.R.Shah(as he then was) set aside the order passed by the High
Court and restored the order passed by the trial Court decreeing the suit for
specific performance of agreement of sale. However, exercising the powers
under Article 142 of the Constitution of India, apart from sale consideration
mentioned in the agreement of sale and the amount already deposited by the
plaintiff, further a sum of Rs.10,00,000/- was directed to be paid to the
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A.S.Nos.431, 494, 523 & 576 of 2014
defendants. Whereas, Ladyship Mrs. Justice B.V.Nagarathna dissenting with
the view of Lordship Mr.Justice M.R.Shah, has rendered a separate judgment,
affirmed the impugned judgment of High Court of Kerala setting aside the
judgment and decree passed by the trial Court, by which the suit for specific
performance of agreement of sale filed by the plaintiff was decreed. In view of
the difference of opinion, the matter requires adjudication by a larger Bench of
the Hon’ble Supreme Court of India.
72. In the light of the conclusions arrived at by this Court that the plaintiff
failed to establish his readiness and willingness for payment of the said
amount, which the learned Trial Court failed to examine let alone by framing
an issue and his conduct in suppressing the facts and taking false pleas, the
relief of specific performance of the Agreement of Sale, cannot be granted.
The Judgment and Decree of the learned Trial Court without adhering to
these aspects is erroneous, legally not valid and warrants interference by this
Court. Point is answered accordingly.
73. However, the relief of Specific Performance is discretionary in nature
and while examining the relief, the Court is required to grant equitable relief in
the given facts and circumstances of the case. On a thorough scrutiny of
record with reference to the oral and documentary evidence, it is not in
dispute that the 1st defendant paid Rs.30,00,000/- as advance in respect of
Agreement of Sale dated 24.07.2003 (Ex.A1). The crucial fact however, ie.,
non-production of the relevant books of accounts with regard to the payments
made to the kith and kin of the 1st defendant and others who are purportedly,
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A.S.Nos.431, 494, 523 & 576 of 2014
the shareholders of Viskas Finewest Leasing Pvt. Ltd., though DDs and the
evidence of Bank officials establishes the said payments to a tune of
Rs.49,00,000/-, at the behest of the 1st defendant and he is solely responsible
and accountable to the said amount. After payment of substantial amount,
still a sum of Rs.12,65,600/-, apart from the interest for the delayed payment
is due. Taking over all facts and circumstances, this Court is of the considered
view that the plaintiff is entitled the amount paid by him, however, with
interest.
74. In the result, this Court in the light of the legal position and the
conclusions arrived at supra, holds that the Decree and Judgment dated
26.06.2014 of the learned Trial Court insofar as O.S.No.37 of 2004 granting
the relief of specific performance is not sustainable and is accordingly set
aside. The 1st defendant shall refund an amount of Rs.79,00,000/- to the
plaintiff from the date of respective payments with interest @ 24% p.a., within
a period of two (2) months from the date of receipt of a copy of this order. The
plaintiff shall also be entitled to future interest @ 12% p.a., till the date of
realization.
75. Insofar as, Decree and Judgment dated 26.06.2014 of the learned Trial
Court in O.S.No.62 of 2006 is concerned, this Court see no reason to interfere
with the same as the plaintiff therein i.e., Iska Vijaya Kumar Reddy failed to
establish his case and A.S.No.523 of 2014 is therefore dismissed.
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76. Accordingly, A.S.No.494 of 2014 is allowed in part. In the light of the
conclusions arrived at in the said appeal, A.S.Nos.431 and 576 of 2014 are
disposed of. No order as to costs.
Consequently, the Miscellaneous Applications pending, if any, shall also
stand dismissed.
_____________________
NINALA JAYASURYA, J
____________________
SUMATHI JAGADAM, J
BLV
Dt. 04.2025.
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THE HONOURABLE SRI JUSTICE NINALA JAYASURYA
THE HONOURABLE SMT. JUSTICE SUMATHI JAGADAM
APPEAL SUIT Nos: 431, 494, 523 & 576 of 2014
Date: 10.04.2025
BLV
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