Andhra HC (Pre-Telangana)
D.N. Raju vs Smt. Santosh Verma And Anr. on 13 December, 2006
Equivalent citations: AIR2007AP127, 2007(3)ALD44, 2007(4)ALT492, AIR 2007 ANDHRA PRADESH 127, 2007 (3) ALL LJ NOC 432, 2007 (3) ABR (NOC) 518 (AP), 2007 AIHC NOC 270, (2007) 3 CIVILCOURTC 776, (2007) 4 ANDH LT 492, (2007) 3 ANDHLD 44, (2007) 4 RECCIVR 450
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. The unsuccessful plaintiffs in O.S. No. 602 of 1994 and batch, on the file of the Principal Junior Civil Judge (East and North), Ranga Reddy District, at L.B. Nagar; are the appellants. They filed the respective suits against the respondents 1 and 2, for the relief of specific performance of a common agreement of sale. According to them, the 1st respondent is the absolute owner of the property in the suit schedule. and through her G.P.A., she executed an agreement of sale (Ex.A-1). dated 22-10-1982, for sale of individual plots, to the in dividual appellants, through the medium of the 2nd respondent-Co-operative Housing Society Ltd. They pleaded that they paid the entire consideration for the suit schedule property and the 1st respondent went on postponing the execution of sale deeds, stating that permission from the Government is to be obtained. Reference is made to the notices got issued on their behalf, from time to time, and ultimately claimed the relief of specific performance of the agreement of sale.
2. The G.P.A. of the 1st respondent, who executed the agreement of sale, filed a writ-ten-statement, stating that the G.P.A. (Ex.C-11), dated 25-6-1982, executed in his favour was cancelled by the principal, and as such, he cannot take any stand in the suit. One G.V. Ramakrishna Rao, who is said to have been appointed as G.P.A. by the 1st respondent filed a written-statement. It was pleaded that the suit schedule property is part of urban agglomeration of Hyderabad, and with a view to protect the surplus land, an agreement of sale was executed on 3-11 -1980 (Ex.B-2), in favour of the 2nd defendant. He denied the execution of any agreement of sale in favour of the appellants, and stated that the suit agreement dated 22-10-1932 is a fabricated document, brought into existence with the collusion of the erstwhile G.P.A. Seshu Babu. It is also stated that the 2nd defendant-Society never had a President by name Amar Babu, and that the suit agreement is not binding upon the 1st defendant. He has also made a reference to an earlier agreement of sale, in favour of his mother, Smt. Bala Tripura Sundari Devi and others, and ultimately prayed for the dismissal of the suit.
3. Additional written-statements were filed by Seshu Babu and well as Ramakrishna Rao: The first one was mostly devoted to painting out the defect in the cancellation of the G.P.A., in his favour. In the second one, a plea was taken as to the gem unity of the agreement of sale, particularly with reference to the purchase of stamp papers, in the name of a third party.
4. Through a common judgment dated 26-12-2002, the trial Court dismissed the suits. Aggrieved thereby, the appellants filed A.S. Nos. 96 of 2003 and batch, in the Court of III Additional District and Sessions Judge, Ranga Reddy District, at L.B. Nagar. The lower Appellate Court dismissed the appeals. Hence, these second appeals.
5. Sri N.V.S.R. Gopala Krishnamacharyulu, learned Counsel for the appellants, submits that the trial Court dismissed the suit on the ground that Ex.A-1 was not genuine, but a fabricated one. and though the lower Appellate Court treated it as genuine, it dismissed the appeal, only on the ground that there was inaction on the part of the appellants for a period of 11 years, in pursuing the remedy. He contends that the lower Appellate Court committed an error in law, in dismissing the appeal, on the ground that the remedy was claimed at a belated stage, though the suit was filed within limitation. He submits that the trial Court had drawn several inferences contrary to record, and the lower Appellate Court completely ignored the correspondence, that ensued from the date of Ex.A-1, till the date of filing of the suit.
6. Sri M. Chandrasekhar Rao, learned Senior Counsel appearing for Sri D. Gopala Rao, learned Counsel for the 1st respondent, submits that no substantial question of law arises for consideration in this batch of second appeals, and that they are liable to be dismissed. He contends that Ex.A-1 is a document, fabricated with the collusion of erstwhile G.P.A., to the detriment of his principal, the 1st respondent herein. He points out that even otherwise Ex.A-1 was not proved, since, neither witnesses, nor anyone connected with it; were examined.
7. None appears for the 2nd respondent.
8. The relief was claimed by the appellants against the 1st respondent alone. The 2nd respondent in fact figured as a purchaser under Ex.A-1, along with the appellants. Ex.A-1 was said to have been executed by the 1st respondent, through her G.P.A. Seshu Babu. Therefore, the 1st respondent was impleaded in the suits, through her G.P.A. By the time the suits came to be filed, the G.P.A. in favour of Seshu Babu was cancelled. Therefore, the actual contest was through another G.P.A. by name G.V. Ramakrishna Rao, who was examined as DW-1.
9. On the basis of the pleadings before it, the trial Court framed the following issues:
1) Whether the suit sale agreement dated 22-10-1982 is true, valid and enforceable?
2) Whether the second defendant society was a party to the alleged suit sale agreement, represented by any competent authority?
3) Whether the suit sale agreement is opposed to bye-laws and hit by Section 23 of the Contract Act?
4) Whether the suit is not maintainable for want of notice Under Section 126 of A.P. Co-operative Societies Act?
5) Whether the suit is barred by limitation?
6) Whether the plaintiff is entitled to the specific performance of the contract of sale?
10. The plaintiff, in one of the suits, deposed as PW-1, and through him Exs.A-1 to A-15 were marked. On behalf of the respondents DWs 1 to 5 were examined, and Exs. B-l to B-36 were marked. The G.P.A., who is said to have executed Ex.A-1, deposed as CW-1. Ex.C-1 to C-20 were also taken on record. The trial Court answered all the issues against the appellants.
11. In A.S. No. 96 of 2003 and batch, filed by the appellants, the lower Appellate Court framed the following two points, viz.
1) Whether Ex.A-1 sale agreement, dated 22-10-1982 is genuine and enforceable, and
2) Whether the suit is barred by limitation.
The lower Appellate Court answered the first facet of point No. 1 in favour of the appellants, and the second facet against them. The second point was answered in favour of the appellants. In the result, the appeals were dismissed. Neither any cross-objections have been filed, nor any submissions were advanced on behalf of the 1st respondent, as regards the findings and observations of the lower Appellate Court, made against her.
12. In view of the arguments, advanced on behalf of the parties, this Court is of the view that the following questions of law arise for consideration, viz.
1) Whether in a suit for specific performance, found to have been filed within the period of limitation: the relief can be denied only on the ground that there was delay in availing the remedy?
2) Whether the principal, who executed a G.P.A., can disown his or her liability, arising out of the transactions, entered through the power of attorney?
13. The trial Court had discussed the issues 1, 2, 3 and 4 together, and it recorded the findings thereon as under:
In view of the discussion made above, I hold issue No. 1 against the plaintiffs saying that the agreement of sale dated 22-10-1982 is invalid and unenforceable. I hold issue No. 2 stating that the defendant No. 2 society was not party to the Agreement of Sale and it was not represented by competent person. I hold issue No. 3 against the plaintiffs saying that, the agreement of sale under Ex.A-1 is opposed to the bye-laws of the society and hit under Section 23 of Contract Act, and I hold issue No. 4 against the plaintiffs stating the suit is bad for not issuing prior notice under Section 126 of A.P. Co-operative Societies Act.
14. The finding on issue No. 1 that Ex. A-1 is a fabricated document; has its own shadow on issues 5 and 6, and thereby the suit was dismissed. The trial Court suspected the genuinely of Ex.A-1 only on the ground that the No."2", in the year 1982, on the stamp paper, was smudged, or not clear. The lower Appellate Court did not agree with the findings recorded by the trial Court. It did not attach much importance to that, and denied the relief only on the ground that the transaction under Ex.A-1 was unfair. The observation runs thus:
...Be that as it may, I consider that, though the number "2" in the year 1982 on Ex.A-1 stamp paper though appears to have erased, but it indicates it is in the year 1982. These relevant circumstances referred supra, in my view are enough exposing the unfairness of the transaction under Ex.A-1 sale agreement. More so, the conduct of the plaintiffs keeping quiet for 11 years and started litigation by issuing Ex.A-3 notice also exposes their un-readiness to perform their part of contract, particularly in the light of their specific plea that they have paid the entire sale consideration....
15. On point No. 2 i.e. limitation, the lower Appellate Court found that the suit was filed within time.
16. Once the suit is found to have been filed within limitation, denial of plea on the ground that it is filed after several years from the date of the relevant agreement; cannot be countenanced. It is no doubt true, that the relief of specific performance is discretionary in nature. Whenever it is denied, by using the discretion, such denial must be guided by settled principles of law, and not by ipse dixit of the Court. This is clear from Section 20 of the Specific Relief Act.
17. Article 54 of the Limitation Act prescribes the period of limitation for institution of the suits, and indicates the starting point for computation. The limitation starts from the date, meant for execution, and where no such date is agreed upon, from the date of refusal, by the concerned party. It was found that Ex. A-3 was issued on 3-9-1993, calling upon the 1st defendant to perform his part of the contract within 15 days, and that the suit was filed within one year from the date of issue. The lower Appellate Court felt that there was hardly any initiative on the part of the plaintiffs from the date of agreement Ex.A-1, i.e. 22- IO-1982, to the date of Ex.A-3 i.e. 3-9-1993. The record, however, discloses that the correspondence ensued between the parties, with almost a uniform periodicity in the form of replies, given by the G.P.A. through Exs. A-4, A-5 and A-6. These letters were addressed in October, 1985, September 1988 and March 1991, expressing his inability to register the sale deeds. Ex.A-6 reads as under:
In continuation of my letters dt. 1-10-1985 and 2-9-1988, I request you to wait for some time to get the sale deed registered in your name of Plot No. 4, admeasuring 250 sq. mtrs. situated in Survey No. 19 & 20 Habshiguda, R.R. District.
As you are already in possession of the said plot of land after paying the entire sale consideration under agreement of sale dated 22-10-1982, no harm is caused to you if there is some amount of delay in getting the necessary permission from the Special Officer, Urban Land Ceiling Authority. Kindly bear with me for some more time.
18. The only objection raised on behalf of the respondents is that CW-1, the author of the said letters voluntarily vouched for the genuinity of the said letters. Nothing was elicited through this witness, by the respondents, to discredit his version.
19. With the evidence of CW-1, Ex. A 1 also stood proved. The small doubt expressed by the trial Court about its genuinely, stood cleared and wiped away with the observation of the lower appellate Court. Therefore, it emerges that Ex.A-1 was proved. The plaintiffs' demand for execution of sale deeds, from time to time, was not acceded to, on one pretext or the other, as is evident from Exs. A-4, A-5 and A-6, and that the suit was filed within limitation, Therefore, there was no basis for dental of relief to the plaintiffs.
20. Coming to other question, it has to be seen that the 1st respondent, who deposed as DW-2, categorically admitted that CW-1 was her GPA, till the same was cancelled in the year 1990, through Ex.B-6. In her affidavit filed in lieu of chief-examination, she made reference to a transaction entered into by her, through CW-1, as her GPA. It is obviously for this reason that in the cross-examination, she stated that she has nothing to do with the suit schedule property. She was not even aware whether the appellants are the members of the 2nd respondent society. The relevant excerpts of her evidence read as under:
I am no more interested in the suit land. I am aware that the proceedings were pending with regard to the suit land on the file of the High Court. I do not know the minute details...
Vide agreement dated 2-11-1980, I agreed to sell the suit land to Rajyalaxmi Housing Co-operative Society in view of the law prevailing at that time...
It is true that Seshu Babu (CW-1) as my GPA sold two plots out of permissible land to Mr./Mrs. Chibber, at the rate of Rs. 40/-per sq.yard. I have received part of the sale consideration from Seshu Babu. It is not true to suggest that Seshu Babu paid entire sale consideration to him. It is not true that in my affidavit I have mentioned that I have received the entire sale consideration as mentioned in the sale deed through C.W.I. I do not know whether Seshu Babu sold the suit land to the plaintiffs in O.S. No. 602 of 1994 and batch.
21. From the above, it is clear that DW-2 executed the GPA in favour of CW-1, and several transactions, undertaken by him, had her approval. Though she stated in her affidavit in lieu of chief-examination that she did not authorize CW-1 to execute Ex.A-1, the same stood belied, in view of her admissions in the cross-examination. That, however, is a factual aspect, which cannot be the basis for adjudication of a Second Appeal. The point is that once there existed subsisting GPA in favour of CW-1, executed by DW-2, the latter cannot avoid her liability under it. In case, she was of the view that Ex.A-1 is not binding upon her, the only course open to her was to file a suit for cancellation of Ex.A-1. No steps were taken in that direction. On the other hand, she has stated in the open Court that she has no concern about the suit schedule land. Therefore, the relief of specific performance ought not to have been denied to the appellants.
22. For the foregoing reasons, the Second Appeals are allowed and the judgments and decrees under appeals are set aside. Consequently, the suits filed by the appellants herein shall stand decreed. There shall be no order as to costs.