Andhra Pradesh High Court – Amravati
K.Sudhakar vs P.Subba Raja Kumari on 7 February, 2025
APHC010157232003
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
FRIDAY ,THE SEVENTH DAY OF FEBRUARY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
FIRST APPEAL NO: 3648/2003
Between:
K.sudhakar ...APPELLANT
AND
P Subba Raja Kumari and Others ...RESPONDENT(S)
Counsel for the Appellant:
1. NIMMAGADDA SATYANARAYANA
Counsel for the Respondent(S):
1. D S SIVADARSHAN
2. K V BHANU PRASAD
The Court made the following:
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
APPEAL SUIT No.3648 OF 2003
JUDGMENT:
–
This Appeal, under Section 96 of the Code of Civil Procedure [for short
„the C.P.C.‟], is filed by the Appellant challenging the decree and judgment,
dated 09.06.2003 in O.S.No.41 of 1999 passed by the Additional Senior Civil
Judge, Eluru [for short „the trial Court‟].
2. The appellant herein is the plaintiff and 1st respondent herein is the
defendant in O.S.No.41 of 1999. It is to be noted here during the pendency of
the appeal, the respondent Nos.2 and 3 are added as parties in the appeal
and the 1st respondent died and her legal representatives are brought on
record as respondent Nos.4 to 7.
3. The appellant/plaintiff filed the suit for specific performance of
agreement of sale, dated 15.02.1996 and for delivery of possession or in the
alternative, for return of the sale consideration with interest and for costs.
4. Both the parties in the Appeal will be referred to as they are arrayed
before the trial Court.
5. The brief averments of the plaint in O.S.No.41 of 1999 are as under:
The defendant is the absolute owner of the plaint schedule site for an
extent of 700 sq. yards in Vatluru, Pedapadu Mandal, West Godavari District.
The defendant got the property by succession as sole legal heir of her father
late Vegunta Anjaneyulu. She intended to sell the site and after some
negotiations, bargain was settled down between the plaintiff and the
defendant. She agreed to sell the plaint schedule site to the plaintiff at
Rs.445/- per sq. yard. The defendant received a sum of Rs.50,000/- as
advance on 15.02.1996 and executed a sale agreement on 15.02.1996 in
favour of the plaintiff duly acknowledged the receipt of Rs.50,000/-. The
defendant should get the site measured on or before 20.04.1996 and the
plaintiff should pay the value of the site for measured extent at Rs.445/- per
sq. yard and the defendant should be bound to execute a registered sale deed
for the site in favour of the plaintiff and the defendant agreed to deliver
possession of the property at the time of registration. If the defendant failed to
measure the property and the plaintiff failed to pay the remaining sale
consideration, the remaining sale consideration shall be paid with interest at
24% per annum with yearly compound, but the defendant is ready and willing
to perform her part of contract. Time is not essence of the contract. The
plaintiff is always been ready and willing to perform his part of contract to pay
the balance sale consideration to the defendant and to obtain the sale deed in
his favour at his expenses. The plaintiff paid a further sum of Rs.90,000/- to
the defendant on 22.10.1997 to her son-in-law Chilaka Rambabu who
endorsed the said payment of Rs.90,000/- out of the said sale consideration
on the back of the second sheet of stamp of the sale agreement and duly
signed acknowledging the said payments. Thus, the plaintiff received an
amount of Rs.1,40,000/- towards sale consideration under the said
agreement. The plaintiff got issued a legal notice on 15.04.1999 through his
counsel to the defendant demanding the execution of the registered sale deed
on receipt of balance sale consideration and to perform her part of contract.
The defendant having received the said notice simply kept quiet and failed to
execute a regular sale deed and failed to give any reply so far. If for any
reason this Court is not inclined to grant the main relief of specific
performance of agreement of sale, dated 15.02.1996, then the plaintiff is
entitled to refund the advance sale consideration of Rs.1,40,000/- with interest
at 18% per annum.
6. The brief averments in the written statement filed by the defendant
are as follows:
The defendant is the absolute owner of plaint schedule site for an extent
of 700 sq. yards, situated at Vatluru village of Pedapadu Mandal and the
defendant agreed to sell the same to the plaintiff at Rs.445/- per sq. yard and
that the defendant has also received an amount of Rs.50,000/- as advance
and executed an agreement of sale, dated 15.02.1996 in favour of the plaintiff.
The defendant denied that the plaintiff is always ready and willing to perform
his part of contract to pay the balance sale consideration to the defendant and
to obtain the sale deed in his favour and that the defendant is bound to get the
site measured as per the terms and conditions of the sale agreement. The
defendant admitted that the plaintiff got issued a legal notice on 15.04.1999
through his counsel demanding execution of the registered sale deed on
receipt of balance sale consideration and to perform her part of contract. The
defendant having received the said notice got issued a reply on 03.05.1999.
The defendant contended that as per the recitals of the agreement of sale,
dated 15.02.1996, the time fixed for performance of contract was 20.04.1996
but the plaintiff did not come forward even in spite of several demands from
the defendant to pay back the remaining amount and to get the sale deed
registered. The defendant made several efforts to complete the sale
transaction but in vain. The plaintiff has no financial capacity to purchase the
said site. There is no concluded contract between the plaintiff and defendant.
Chilaka Rambabu is not at all authorized by the defendant to collect any
amount on her behalf. The claim of the plaintiff is untenable. The plaintiff filed
the suit after issuance of notice with ulterior motive of causing harassment and
to deceive the defendant apart from causing huge monetary loss.
7. Based on the above pleadings, the trial Court framed the following
issues:
(1) Whether the plaintiff is entitled for specific performance of agreement
of sale and for possession as prayed for?
(2) Whether the plaintiff is entitled for alternative relief as prayed for?
(3) To what relief?
8. During the course of trial in the trial Court, on behalf of the Plaintiff,
PW1 was examined and Ex.A1 to Ex.A5 were marked. On behalf of the
Defendant, DW1 and DW2 were examined and Ex.B1 was marked.
9. After completion of the trial and hearing the arguments of both sides,
the trial Court decreed the suit in part vide its judgment, dated 09.06.2003 by
granting relief of refund of advance amount, against which the present appeal
is preferred by the plaintiff in the suit questioning the Decree and Judgment
passed by the trial Court for not granting the primary relief of specific
performance of agreement of sale.
10. Heard Smt. Nimmagadda Revathi, learned counsel for the appellant
and heard Sri D.S. Sivadarshan, learned counsel for the respondents.
11. Learned counsel for the appellant would contend that the decree
and judgment insofar as it went against the appellant are contrary to law, facts
and circumstances of the case. She would further contend that the trial Court
erred in not properly exercising its discretion though the relief of specific
performance is a discretionary relief. She would further contend that the trial
Court came to a wrong conclusion and granted alternative relief of refund of
advance amount without granting the main relief of specific performance of
agreement of sale. She would further contend that the appeal may be allowed
by setting aside the finding given by the learned trial Judge that the plaintiff is
entitled alternative relief of refund of advance amount and by granting main
relief of specific performance of agreement of sale, dated 15.02.1996.
12. Per contra, learned counsel for the respondents would contend that
on appreciation of the entire evidence on record, the learned trial Judge rightly
rejected the main relief of specific performance of agreement of sale and
granted the alternative relief of refund of advance amount and there is no
need to interfere with the findings given by the learned trial Judge.
13. Now the points for determination in the appeal are:
1) Whether the plaintiff is entitled the main relief of specific
performance of agreement of sale, dated 15.02.1996?
2) Whether the trial Court is justified in rejecting the main relief of
specific performance of agreement of sale and whether the trial
Court is justified in granting alternative relief of refund of advance
amount?
3) Whether the decree and judgment passed by the trial Court
needs any interference?
14. Point No.1:
Whether the plaintiff is entitled the main relief of specific
performance of agreement of sale, dated 15.02.1996?
The case of the plaintiff is that the defendant is owner of the plaint
schedule site and she agreed to sell the plaint schedule site for an extent of
700 sq. yards to the plaintiff at Rs.445/- per sq.yard. The plaintiff further
pleaded that the defendant received a sum of Rs.50,000/- towards advance
on 15.02.1996 and executed a stamped sale agreement, dated 15.02.1996 in
favour of the plaintiff and duly acknowledged the receipt of Rs.50,000/- in the
agreement itself. The plaintiff further pleaded that though he is ready and
willing to perform his part of contract, the defendant failed to discharge her
part of contract to measure the plaint schedule site and that after issuance of
legal notice, the plaintiff approached the Court for granting relief of specific
performance of agreement of sale.
15. The agreement of sale is marked as Ex.A.1. The recitals
incorporated in Ex.A.1 are as follows:
(i) The defendant herein agreed to sell the plaint schedule site to the
plaintiff at Rs.445/- per sq. yard;
(ii) The defendant should get the site measured on or before 20.04.1996
and the plaintiff should pay the value of the site for measured extent at
Rs.445/- per sq. yard and the defendant should be bound to execute a
regular sale deed for the site in favour of the plaintiff; and
(iii) If the defendant failed to measure the property and the plaintiff failed
to pay the remaining balance sale consideration, the remaining balance
sale consideration shall be paid with interest at 24% per annum with
yearly compound, if the plaintiff is not ready to discharge his part of
contract, but the defendant is ready and willing to perform her part of
contract.
16. The execution of Ex.A.1 agreement of sale and the terms and
conditions mentioned in Ex.A.1 and receipt of advance amount of Rs.50,000/-
by the defendant are not at all disputed by the defendant. The recitals in
Ex.A.1 are also not in dispute by the defendant.
17. In the case of K.S. Vidyanandam v. Vairavan 1, the Apex Court
held as follows:
Grant of the relief of specific performance is discretionary and the Court
is not bound to grant it. This Court further held that though time is not of
essence to a contract relating to transfer of property, such contracts
need to be completed within a reasonable time period. Thus, the time
element cannot be completely ignored.
In a suit for Specific Performance of a contract, the Court is required to
pose unto itself the following questions, namely:-
(i) Whether there is a valid agreement of sale binding on both the vendor
and the vendee and
(ii) Whether the Plaintiff has all along been and still is ready and willing
to perform his part of the contract as envisaged under Section 16(c) of
the Specific Relief Act, 1963.
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
1
(1997) 3 SCC 1
Ram Thapar8 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 Kumar9.
Even in a first appeal, the first Appellate Court is duty bound to examine
whether there was continuous readiness and willingness on the part of
the Plaintiff to perform the contract. This proposition finds support
from Balraj Taneja v. Sunil Madan10, and H.P. Pyarejan v.
Dasappa11 where this Court approved the views taken by the Privy
Council in Ardeshir Mama v. Flora Sassoon4.
In Malluru Mallappa v. Kuruvathappa12, this Court observed and held:
(SCC pp.317-19, paras 13-14 & 18)
“13. It is a settled position of law that an appeal is a continuation of
the proceedings of the original court. Ordinarily, the appellate
jurisdiction involves a rehearing on law as well as on fact and is
invoked by an aggrieved person. The first appeal is a valuable right of
the appellant and therein all questions of fact and law decided by the
trial court are open for reconsideration. Therefore, the first appellate
court is required to address itself to all the issues and decide the case
by giving reasons. The court of first appeal must record its findings
only after dealing with all issues of law as well as fact and with the
evidence, oral as well as documentary, led by the parties. The
judgment of the first appellate court must display conscious
application of mind and record findings supported by reasons on all
issues and contentions.”
18. Admittedly, in the case on hand, there was a valid agreement of
sale between both parties, the same is binding on both parties, therefore, the
terms and conditions in Ex.A.1 agreement of sale are binding on both parties
viz., plaintiff and defendant. The execution of Ex.A.1 agreement of sale under
receipt of advance amount of Rs.50,000/- on the date of agreement of sale is
undisputed by the defendant. Admittedly, in the case on hand, time is not
essence of contract. On the date of agreement of sale from out of
Rs.3,11,500/-, an amount of Rs.50,000/- was received by the defendant. It
was agreed by both parties that the defendant should get the site measured
on before 20.04.1996 and the plaintiff should pay the remaining balance sale
consideration for the measured site at Rs.445/- per sq. yard. Of course, it is
also the duty of the plaintiff to be present at the time of measurements of the
site and to cooperate for measurements. Admittedly, the site was not
measured on or before 20.04.1996. The defendant i.e., D.W.1 admitted in her
evidence in cross examination that she has to measure the site mentioned in
Ex.A.1 and the plaintiff has to pay amount to the actual extent exist, she did
not issue any notice to plaintiff complaining that the plaintiff is not ready and
willing to execute his part of contract and that he has no amount to pay the
balance sale consideration, one Chilaka Rambabu is her third son-in-law, she
has no disputes with the said Rambabu. The plaintiff admitted in his evidence
in cross examination that he has no dispute regarding the measurements of
the suit schedule site, the total sale consideration is Rs.3,11,500/- and he paid
Rs.50,000/- as advance to the defendant at the time of execution of Ex.A.1
agreement of sale. He further admits as per terms in Ex.A.1 he has to pay the
remaining balance sale consideration on or before 20.04.1996, he has not
deposited the remaining balance sale consideration amount in any bank
before stipulated date. He did not convey the same to the defendant.
19. In the case on hand, within a stipulated period of time i.e., on or
before 20.04.1996 there is no exchange of notices in between both the parties
to the contract. The defendant did not issue any legal notice to the plaintiff on
or before 20.04.1996 that she is ready for measuring the site and insisted the
plaintiff for his presence at the time of measurements likewise, the plaintiff
also did not issue any legal notice to the defendant within the stipulated date
i.e., on or before 20.04.1996 that he is ready to pay the balance sale
consideration and also ready for measurements. It is relevant to say that for
measuring the schedule site, the presence of both parties to the contract is to
be required. After lapse of more than three years from the date of Ex.A.1
agreement of sale i.e., on 15.04.1999, the plaintiff got issued a legal notice to
the defendant through his counsel to measure the suit schedule site and he is
ready to pay the balance sale consideration. Ex.B.1 goes to show that on
03.05.1999 the defendant got issued a reply notice through her Advocate by
informing that she is always ready and willing to measure the site and she is
ready and willing to receive the balance sale consideration and she is ready to
execute the registered sale deed in terms of the contract of agreement of sale
under Ex.A.1 and has thrown the blame on the plaintiff. Admittedly, in the case
on hand, within a stipulated time i.e., on or before 20.04.1996 the defendant
has not issued any notice to the plaintiff by informing that she is ready for
measurements of site but the plaintiff is not coming forward to discharge his
obligation. When elicited in cross examination, P.W.1 admits that he has no
dispute regarding the measurements of the suit schedule site, the total
consideration is Rs.3,11,500/-, he paid Rs.50,000/- as advance to the
defendant at the time of execution of Ex.A.1. As per terms in Ex.A.1 he has to
pay the remaining balance sale consideration on or before 20.04.1996.
Admittedly, the plaintiff did not issue any legal notice within a stipulated period
of time i.e., on or before 20.04.1996 to the defendant by informing his
readiness to pay the balance sale consideration and he is also ready for
measurements. Admittedly, in the case on hand, there is no exchange of
notices in between both the parties within a stipulated time. After lapse of
three years from the date of agreement of sale i.e., on 15.04.1999 the plaintiff
leisurely issued a legal notice to the defendant and the defendant also issued
a reply notice by denying the contents of legal notice.
20. Law is well settled that the remedy for specific performance is an
equitable remedy. The Court while granting decree of specific performance
exercises its discretionary jurisdiction. Section 20 of the Specific Relief Act
specifically provides that the Court‟s discretion to grant decree of specific
performance is a discretionary but not arbitrary.
21. The parameters for the exercise of discretion vested by Section 20
of the Specific Relief Act, 1963 cannot be entrapped within any precise
expression of language and the contours thereof will always depend on the
facts and circumstances of each case. The ultimate guiding test would be the
principles of fairness and reasonableness as may be dictated by the peculiar
facts of any given case, which features the experienced judicial mind can
perceive without any real difficulty.
22. In the case on hand, the plaintiff approached the trial Court for
seeking relief of specific performance of agreement of sale, dated 15.02.1996.
Admittedly, a paltry amount of Rs.50,000/- was paid from out an amount of
Rs.3,11,500/- on the date of agreement of sale. It was agreed by both the
parties that the remaining balance sale consideration shall be paid on or
before 20.04.1996 otherwise; it will carries interest at 24% per annum with
compoundable rests. As stated supra, the plaintiff did not choose to issue any
legal notice within a stipulated period of time by informing his readiness and
willingness to pay the remaining balance sale consideration and also he is
ready for measuring the suit schedule site. The defendant also did not issue
any legal notice within a stipulated time that she is ready for measuring the
site.
23. The plaintiff pleaded in the plaint that though he is ready and willing
to perform his part of contract, the defendant did not come forward to execute
a sale deed. Admittedly, the said alleged bald plea is not at all proved by the
plaintiff.
24. It was contended by the learned counsel for the appellant that the
learned trial Judge came to a conclusion that “the defendant did not get
measured the site within a stipulated period of time and that there are latches
on the part of the defendant in not measuring the site.” She would further
contend that the said finding is not at all challenged by the defendant by way
of cross objections, therefore, this Court has no need to interfere into the said
finding given by the learned trial Judge.
25. It is well settled that in a first appeal, the first appellate court is
duty bound to examine all the aspects and first appellate court has to
scrutinize the oral and documentary evidence on record. The first appeal
is a valuable right of the appellant and therein all questions of facts and
law decided by the trial court are open for reconsideration. Therefore,
the first appellate court is required to address itself to all the issues and
decide the case by giving reasons. The court of first appeal must record
its findings only after dealing with all issues of law as well as fact and
with the evidence, oral as well as documentary, led by the parties. The
judgment of the first appellate court must display conscious application
of mind and record findings supported by reasons on all issues and
contentions.
Therefore, I am unable to accept the contention of the learned counsel
for the appellant that since no cross objections are filed by the appellant
against the said finding given by the learned trial Judge, the First Appellate
Court is not bound to examine the said aspect.
26. Learned counsel for the appellant relied on Narindeerjit Singh v.
North Star Estate Promoters Limited 2 wherein the Apex Court held that
“readiness and willingness cannot be treated as a straitjacket formula and the
issue has to be decided keeping in view the facts and circumstances relevant
to the intention and conduct of the party concerned.”
Admittedly, in the case on hand, within a stipulated period of time, the
plaintiff has not issued any legal notice informing that he is ready and willing to
perform his part of contract.
2
AIR 2012 Supreme Court 2035
Law is well settled that “the Court should bear in mind that when the
parties prescribed certain time limit for taking steps by one party or the other
party, it must have some significance and that the said time limit cannot be
ignored altogether on the ground that the time has not been made the
essence of the contract relating to immovable property.”
Therefore, in the case on hand, except paying paltry amount of
Rs.50,000/- on the date of contract, nothing was paid by the plaintiff. Though
the plaintiff pleaded that he paid an amount of Rs.90,000/- to the son-in-law of
the defendant viz., Chilaka Rambabu, the said alleged payment is strongly
disputed by the defendant and the same is not at all proved by the plaintiff.
27. 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 contract. In view of
Explanation (i) to clause (c) of Section 16, it may not be essential for the
plaintiff to actually 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) to Section 16(c) of the 1963 Act
says the plaintiff must aver performance or readiness and willingness to
perform the contract according to its true construction.
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 obligation 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.
In the present case, of course, there is an averment in the plaint that the
plaintiff was all along ready and willing to perform his obligations under the
contract. The question is whether the plaintiff has proved his readiness and
willingness to perform his obligation under the contract.
28. In a suit for Specific Performance of a contract, the Court is required
to pose unto itself the following questions, namely:- (1) Whether there is a
valid agreement of sale binding on both the vendor and the vendee; and (2)
Whether the Plaintiff has all along been and still is ready and willing to perform
his part of the contract as envisaged under Section 16(c) of the Specific Relief
Act, 1963.
There is a distinction between readiness and willingness to perform the
contract and both ingredients are necessary for the relief of Specific
Performance. 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.
Even in a first appeal, the first Appellate Court is duty bound to examine
whether there was continuous readiness and willingness on the part of the
plaintiff to perform the contract.
In the case on hand, the plaintiff approached the Court for seeking relief
of specific performance of agreement of sale, dated 15.02.1996. Admittedly,
within a stipulated period of time either the plaintiff or the defendant did not
exchange any legal notices by informing their readiness and willingness. As
stated supra, a paltry amount of Rs.50,000/- has been only paid by the plaintiff
on the date of agreement of sale from out of Rs.3,11,500/-. After three years
from the date of agreement of sale, leisurely the plaintiff got issued a legal
notice by informing his readiness to perform his part of contract. The
defendant denied the contents in the legal notice.
29. In P. D’Souza vs. Shondrilo Naidu3, the Apex Court held as follows:
“It is indisputable that in a suit for specific performance of contract the
plaintiff must establish his readiness and willingness to perform his part
of contract. The question as to whether the onus was discharged by the
plaintiff or not will depend upon the facts and circumstance of each case.
No strait-jacket formula can be laid down in this behalf….
…. The readiness and willingness on the part of the plaintiff to perform
his part of contract would also depend upon the question as to whether
the defendant did everything which was required of him to be done in
terms of the agreement for sale.”
Section 16(c) of the Specific Relief Act, 1963 mandates “readiness and
willingness” on the part of the plaintiff and it is a condition precedent for
obtaining relief of grant of specific performance. It is also clear that in a
suit for specific performance, the plaintiff must allege and prove a
continuous “readiness and willingness” to perform the contract on his
part from the date of the contract. The onus is on the plaintiff.
It has been rightly considered by this Court in R.C. Chandiok & Anr. vs.
Chuni Lal Sabharwal & Ors., (1970) 3 SCC 140 that “readiness and
willingness” cannot be treated as a straight jacket formula. This has to
be determined from the entirety of the facts and circumstances relevant
to the intention and conduct of the party concerned.
It is settled law that even in the absence of specific plea by the opposite
party, it is the mandate of the statute that plaintiff has to comply
with Section 16(c) of the Specific Relief Act and when there is non-
compliance with this statutory mandate, the Court is not bound to grant
specific performance and is left with no other alternative but to dismiss
the suit. It is also clear that readiness to perform must be established
throughout the relevant points of time. “Readiness and willingness” to
3
(2004) 6 SCC 649
perform the part of the contract has to be determined/ascertained from
the conduct of the parties.
In the case on hand, the suit agreement is dated 15.02.1996.
Admittedly, there is no exchange of notices in between both the parties prior
to 20.04.1996 which date fixed for performance of contract in between both
the parties. The plaintiff pleaded in the plaint that even though the defendant
is bound to get the site measured as per the terms and conditions of the
agreement of sale, she has been simply putting off the matter on some pretext
or other and promising to fulfil her obligation under the agreement putting forth
some excuse or other, in spite of repeated requests from the plaintiff and the
elders, who settled the bargain. Admittedly, the same is not at all proved by
the plaintiff by adducing any cogent evidence except relying on self-testimony
of the plaintiff as P.W.1 nothing was proved by the plaintiff. The plaintiff
contended that the defendant did not get ready for measuring the site and that
there are latches on the part of the defendant in not measuring the site. There
are clear admissions of the plaintiff in his evidence in cross examination that
he has no dispute regarding the measurements of the suit schedule site, the
total consideration is Rs.3,11,500/-, he paid Rs.50,000/- as advance to the
defendant at the time of execution of Ex.A.1 and as per terms in Ex.A.1 he
has to pay the remaining balance sale consideration on or before 20.04.1996.
If he is not really disputing with the measurements of the site, what prevent
the plaintiff for not paying the remaining balance sale consideration of
Rs.2,61,500/- within a stipulated time. Admittedly, on the date of agreement
from out of Rs.3,11,500/-, a paltry amount of Rs.50,000/- was paid. Except
sole testimony of the plaintiff as P.W.1, no other evidence is produced by the
plaintiff to prove there are no latches on his part and the entire latches are on
the part of the defendant. It is the contention of the plaintiff that though he is
ready and willing to perform his part of contract, the defendant failed to
discharge her obligation to measure the site and to execute a regular sale
deed. As stated supra, the same is not at all proved by the plaintiff.
In the plaint it was pleaded by the plaintiff that an amount of
Rs.90,000/- was paid on 22.10.1997 that much after a lapse of 1 ½ year from
the date of stipulated time in the agreement of sale, to the son-in-law of the
defendant viz., Chilaka Rambabu and obtained endorsement by Chilaka
Rambabu on the back of Ex.A.1 agreement of sale, the same is strongly
disputed by the defendant. It is not the case of both parties that the defendant
authorized Chilaka Rambabu to receive any part payment on behalf of the
defendant. It was suggested to defendant i.e., D.W.1 in her evidence in cross
examination by the learned counsel for the plaintiff that the plaintiff paid an
amount of Rs.90,000/- to Chilaka Rambabu on behalf of the defendant, the
said suggestion is denied by D.W.1. Therefore, the burden is on the plaintiff to
prove the said alleged part payment of Rs.90,000/-, at least the plaintiff ought
to have taken steps to summon Chilaka Rambabu to prove the said alleged
payment of Rs.90,000/-, but no steps have been taken by the plaintiff for the
reasons best known to him. Admittedly, Chilaka Rambabu is no way
concerned with Ex.A.1 agreement of sale transaction. The plaintiff came with
a false plea that he paid Rs.90,000/- to the defendant through Chilaka
Rambabu. As stated supra, the same is not at all proved by the plaintiff since
the defendant denied the said payment.
30. Learned counsel for the appellant placed a reliance of Zarina
Siddiqui vs. A. Ramalingam alias R. Amaranathan4 wherein the Apex Court
held as follows:
In Nirmala Anand vs. Advent Corpn. (P) Ltd., (2002) 8 SCC 146, a three-
Judge Bench of this Court on a similar issue held as under :-
“6. It is true that grant of decree of specific performance lies in
the discretion of the court and it is also well settled that it is not
always necessary to grant specific performance simply for the
reason that it is legal to do so. It is further well settled that the
court in its discretion can impose any reasonable condition
including payment of an additional amount by one party to the
4
(2015) 1 Supreme Court Cases 705
other while granting or refusing decree of specific performance.
Whether the purchaser shall be directed to pay an additional
amount to the seller or converse would depend upon the facts
and circumstances of a case. Ordinarily, the plaintiff is not to
be denied the relief of specific performance only on account of
the phenomenal increase of price during the pendency of
litigation. That may be, in a given case, one of the
considerations besides many others to be taken into
consideration for refusing the decree of specific performance.
As a general rule, it cannot be held that ordinarily the plaintiff
cannot be allowed to have, for her alone, the entire benefit of
phenomenal increase of 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 as to 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 on
which parties may not have any control. The totality of the
circumstances is required to be seen.”
In the case on hand, the plaintiff approached the court for seeking
specific performance of agreement of sale with false plea that he paid an
amount of Rs.90,000/- to the son-in-law of the defendant viz., Chilaka
Rambabu on behalf of the defendant, the same is not at all proved by the
plaintiff. Therefore, the plaintiff approached the trial court for seeking relief of
specific performance of agreement of sale with a false plea with unclean
hands.
31. The relief of specific performance under the Specific Relief Act,
1963, is discretionary in nature. Section 20 of the Act explicitly stated that the
court is not bound to grant such relief merely because it is lawful to do so. The
equitable remedy sought by the plaintiff cannot be granted in the light of his
conduct and the circumstances of the case.
32. In the case on hand, the plaintiff approached the court with unclean
hands with a false plea that he paid an amount of Rs.90,000/- to the
defendant through one Chilaka Rambabu who is no way concerned with
Ex.A.1 agreement of sale transaction. The plaintiff has not proved the said
plea by adducing oral or documentary evidence. The plaintiff also did not take
any steps to summon the said Chilaka Rambabu to prove the said alleged part
payment. As noticed supra, a paltry amount of Rs.50,000/- was only paid by
the plaintiff from out of Rs.3,11,500/- on the date of agreement of sale and the
plaintiff has issued a legal notice after lapse of 3 years from the date of
agreement of sale. The plaintiff issued a legal notice after a lapse of 2 years
11 months and 25 days of stipulated period of time filed by both the parties to
the agreement.
33. Considering the conduct of the plaintiff of making false statement in
the plaint and also the false plea about the alleged part payment of
Rs.90,000/- to the son-in-law of the defendant viz., Chilaka Rambabu on
behalf of the defendant, the plaintiff is disentitled the relief of specific
performance of agreement of sale. On appreciation of the entire evidence on
record, the learned trial Judge rightly awarded consequential relief of refund of
advance amount. Therefore, I do not find any illegality in the said finding given
by the learned trial Judge except the interest portion.
34. In the result, the appeal suit is dismissed, but rate of interest in
alternative relief awarded by trial Court is modified as the plaintiff is entitled
interest at 12% per annum on Rs.50,000/- from the date of receipt of advance
sale consideration till date of decree and thereafter at 6% per annum from the
date of decree till date of realization. The rest of the judgment holds good.
Considering the facts and circumstances of the case, each party do bear their
own costs in the suit as well as in the appeal.
As a sequel, miscellaneous petitions, if any, pending in the Appeal shall
stand closed.
_________________________
V. GOPALA KRISHNA RAO, J
Date: 07.02.2025
PGR
