Andhra HC (Pre-Telangana)
Kota Satyanarayana vs Qamarunnisa Begum on 9 August, 2002
Equivalent citations: AIR2003AP63, AIR 2003 ANDHRA PRADESH 63
JUDGMENT P.S. Narayana, J.
1. The plaintiff in O.S. No. 320/80 on the file of Subordinate Judge, Ongole is the appellant. The appellant-plaintiff filed the aforesaid suit for the relief of specific performance for enforcement of agreement of sale, but the trial court had negatived the relief for specific performance of contract of agreement of sale but had decreed the suit so far as it relates to the advance amount of Rs. 20,000/- with interest at 12% per annum from the date of suit till the date of realization is concerned, arid the plaintiff aggrieved by negativing the relief of specific performance had preferred the present Appeal.
2. The parties are referred to as "plaintiff and "defendant" for the purpose of convenience.
3. The respective pleadings of the, parties are as hereunder :
4. The plaintiff pleaded in his plaint that he is a resident of Ongole and associated with business known as 'Andhra Coffee'. Ongole. That the defendant's father and husband are natives of Ongole town where they owned house properties. That the defendant's husband is an executive Engineer, now forking at Khammam. That the defendant entered into an agreement dated, 15-3-1980 to sell to the plaintiff the plaint schedule house for a sum of Rs. 60,000/- and received from the plaintiff on the date of agreement a sum of Rs. 10,000/- as, earnest money. That the agreement was executed and earnest money was paid at Khammam. That the material terms of the agreement are as follows ; "that a further sum of Rs. 10,000/- was to be paid to the defendant on or before 14-4-1990, default in payment of the same would entail forfeiture of earnest money and cancellation of the agreement of sale. That if the second sum of Rs. 10,000/- was paid as stipulated, the balance of Rs. 40,000/- should he paid to the defendant on or before 14-6-1980 and sale deed obtained from her (defendant). Thai since the house stood registered in the name of Md. Meera Mohiuddin. father-in-law of the defendant in the Municipal records, the defendant should get it mutated in her name and a receipt from the Municipal authority in evidence of such mention should be given to the plaintiff before registration of the sale deed. That on 12-4-1980, the plaintiff went to Khammam and paid to the defendant the second instalment of Rs. 10,000/- in terms of the agreement and obtained endorsement, on the agreement under the signature of the defendant. That as the deadline for performance of contract was nearing the plaintiff went to Khammam on 7-6-1980 and requested the defendant to come down to Ongole, receive the balance of consideration Rs. 40,000/- and execute the sale deed after obtaining mutation in the Municipal records and put the plaintiff in vacant possession of the house. That in the presence of her husband, the defendant pleaded for extension of time on the ground that her state of health at that time did not permit her to undertake a journey to Ongole. That as desired by her, Lime was extended upto 14-7-1980. That an endorsement to that effect was made on the agreement affirming the payments of Rs. 10,000/- on 15-3-1980 and another Rs. 10,000/- on 12-4-1980. That the endorsement was signed by the defendant, attested by her husband and scribed by her second son Md. Ahmad Mohiuddin. That while so, on 2-7-1980, one Mohammad Usman sent a telegram from Ongole to Kota Narasimham, father of the plaintiff, which reads like this : Kota Narasimha. 'Andhra Coffee'. Trunk Road. Ongole "Filing suit partition agreement Quamarunnisa Begum. Don't purchase suit property "Md. Usman". The telegram caused, quite naturally, misgiving in the plaintiffs mind. That until the telegram was received, the plaintiff had no reason to entertain any doubt as to the warranty of title given by the defendant. That on 10-7-1980, the plaintiffs father Kota Narasimham went to Khammam to obtain clarification of the intriguing telegram and to request the defendant to come down to Ongole and execute the sale deed in terms of the agreement. That both the defendant and her husband would appear to have assured the plaintiffs father that the threatened suit was intended to blackmail and that he need not apprehend frustration of the contract on that or on any other count. That while giving that assurance, the defendant once again pleaded for extension of time till 14-10-1980 in the presence of her husband the reason, being, as stated in the endorsement on the agreement.. That this endorsement, too like its predecessor, was scribed by her son. signed by the defendant and attested by her husband. That it was again affirmed that she would receive the balance of consideration of Rs. 40,000/- and register the sale deed before 14-10-1980. That on the three occasions in which the plaintiff twice and his father once went to Khammam in connection with this transaction, they were accompanied by Chunduri Ramaswami who negotiated their bargain. That the suit agreement is filed herewith, which together with its endorsements may be read as part of the plaint. That it would appear that in July-August, this year O.P. No. 120/80 was filed in the Court of the Subordinate Judge, Ongole by some five persons viz. Razia Begurn. Md. Usman. Mumtaz Begum. Praveer Begum and Md. Nizamuddin against Md. Magdoom Mohiuddin, Quamarunnisa Begum (defendant) Azzeez Bibi and Md. Zikuddin for partition and separate possession of their 2/7th share in the suit house, respondents 1 and 4 being entitled to 2/7th share each and the third respondent to 1/7th share. That it is learnt that the O.P. (petition for leave to sue as indigent person) was not opposed by the respondents including the 2nd respondent--defendant herein) and the O.P. was numbered as O.S. No. 232/80. That the claim for partition and separate possession of the share of the plaintiff is granted on the following allegations. "Ziauddin (husband of the first plaintiff and father of the other plaintiffs) and defendants, hand 4 are the sons and the third defendant is the daughter of one Md. Meera Mohiuddin who was the owner of the plaint schedule house, that on his death, it devolved on his three sons as to 2/71h share each and on his daughter as to 1/7th share as tenants-in-common, that the sale deed 5-5-1952 executed by the 1st defendant in favour of the 2nd defendant for himself and as guardian of his minor brothers and by Azzeez. Bibi was void and did not convey title to the 2nd defendant (defendant herein), that the house was being enjoyed by the sharers as tenants-in-common and that the suit was filed because the defendants did not respond to their request for an amicable partition. That the plaintiff is not a party to that suit. That the defendant herein is the 2nd defendant there. That after service of summons in the O.P. the defendant and her husband arrived in Ongole and without sending for the plaintiff, at least as a matter of courtesy, she issued a notice dated 16-8-1980 asking the plaintiff to take a sale deed from her after paying the balance of consideration of Rs. 40,000/- on 18-8-1980 or within two days of the receipt of the notice (presumably which ever is earlier) and warning him that in default of compliance with that notice, the second endorsement on that agreement and the agreement itself would stand cancelled. That the second endorsement is the endorsement by which time was extended till 14-10-1980 at the specific request of the defendant. That she would cancel it unless the notice was complied with. That the last and concluding sentence in the notice which has all the overtures of an ultimatum reads as follows :
(Vernacular matter omitted.....Ed.) Given the meaning due to these words, the defendant would want the plaintiff to understand "No interviews, no parleys, pay Rs. 40,000/- and take a sale deed, or forego Rs. 20,000/- and the agreement whatever the impediments in the way of the plaintiff to perform his part of the contract". It is not known how the (Vernacular matter omitted) which compelled her to ask for and obtain extension of time till 14-10-1980, disappeared in the middle of August itself. That she did not appear to have taken cognizance of the altered situation created by the institution of O.S. No. 232/80 disputing her title. That all intents and purposes, the defendant was out to intimidate the plaintiff into the performance of the contract regardless of the pending litigation and its unpredictable results which in one event, might involve the plaintiff in a heavy loss. That the defendant says that, that was her last notice as if there were prior notices. That the ulterior motive of the notice is blatant. That by coercing the plaintiff to perform the contract, she wants to by pass the suit O.S. No. 232/80 by putting the plaintiff in her place there. That the hustle and hurry can be explained only the context of the suit which threw a cloud on her title. That ignoring the over bearing tone of the notice, the plaintiff met the defendant and her husband to appraise himself of the implications of the notice. That the plaintiff felt that it was vain to plead with her that the agreement could not be performed by him as her title was in jeopardy by reason of the institution of the suit. That even so the plaintiff suggested an alternative that he would take the sale deed from her after paying the balance of consideration if she could give as security another house in Ongole which she has in her exclusive right. Bill she did not countenance that proposal. That the defendant's husband was a witness to these parleys. That further, the plaintiff came to know that the defendant applied to the Municipality to mutate the entry in her name as the owner of the house, but the application was rejected as it was opposed by the plaintiff, in O.S. No. 232/80. That the notice and the reply notice are herewith filed and they explain where the parties stand in relation to the agreement. That there is no move from the defendant. That the plaintiff is willing to perform his part of the contract if the defendant can give a marketable title. That the defendant cannot within the bounds of law, terminate the agreement unilaterally and forfeit the amount of Rs. 20,000/- received by her. That after having placed the plaintiffs in this dilemma, the defendant is intent upon, causing further mischief and damage to the plaintiff. That he has information that the defendant is now negotiating the sale of the suit house through brokers at Ongole. That this is a treacherous move which can be countered by the plaintiff by legal action only. Hence this suit for specific performance of the agreement with delivery of possession and compensation for loss sustained meanwhile, or in the alternative, for damages resulting from the breach of the agreement by the defendant.
5. The defendant filed a written statement with the following allegations.
6. That the averments made in the plaint arc true, to the extent of sale agreement pertaining to the schedule house and payment of earnest money of Rs. 20,000/- to be paid on or before 14-6-1980. That later the time was extended mutually by the plaintiff and defendant. But it is not true to say that the defendant had made any efforts to resell the suit schedule house to others or contracted in this regard with any of the brokers in Ongole. That as the O.P. No. 120/80 has been filed by one of the relatives of the defendant's husband claiming a share in the suit schedule house, the plaintiff has refused to finalise the sale transaction event though an assurance has been given by the defendant's husband who is a responsible Deputy Chief Engineer, N.S.C. Project (LC) at Khammam and the same is evident from the contents of the plaint. That it is also not true to say that the defendant is possessing only the suit schedule house and another house which is attached before judgment by this Court. That in fact the defendant is possessing much more huge and valuable immovable properties more than sufficient for the plaintiff's claim if adversely affected due to the result in O.S. No. 232/80 on the file of the Court (i.e., O.P. No. 120/80). That the plaintiff alone is the root cause for the filing of the suit for partition bearing O.S. No. 232/ 80 referred to above just for avoiding to fulfil his part and performance of contract. That before entering into contract with the defendant, he (plaintiff) got himself fully satisfied with the defendant's title over the suit house. That no person can claim any right or interest over the suit house got by the defendant through the registered deed long time back. That the plaintiff is the neighbour of this defendant and he knows perfectly well about the ownership and title of this defendant so far as the suit schedule house is concerned. That by the conduct of the plaintiff it is clear that he intended to go back from his part of performance of contract of the suit schedule house, due to the O.S. No. 232/80. That it does not mean that this defendant has no right to dispose of the suit schedule house and not entitled to dispose of her properties if the circumstances of her family requirement demands so. That at the time of sale agreement with regard to suit schedule house neither there was any cloud on the defendant's right nor any litigation to entertain any doubt in connection to defendant's right. That it is the plaintiffs default in the discharge of his part of the performance of contract even on the assurance for compensation given by the defendant and the husband of this defendant, in case the result in O.S. No. 232/80 has any effect on him (plaintiff). Had the plaintiff abided the terms of the contract to the suit schedule house, that would have been conveyed to him by the defendant through registered document. That is was the plaintiff who intentionally breached the contract. That in case of the defendant's failure in the above said O.S. No. 232/80, the plaintiff could have easily realised the value and damages any resulted therefrom. That the time is the very essence of contract. That due to the non-performance of the part of contract by the plaintiff, the defendant has sustained an irreparable loss and damage as she had to meet her timely needs in the establishment of her son's business. That for the very same purpose the defendant has agreed to sell her suit schedule house to the plaintiff. But when she failed to realize the full consideration from the plaintiff she had to suffer the loss by selling another property which has been attached before judgment in this suit, by this Court. That in spite of all assurances and guarantees, well supported by valuable sources and properties and readiness by the defendant in performing her part of contract, the plaintiff has refused to accept it. Therefore the plaintiff alone is responsible for the termination or cancellation of sale agreement and the earnest money of Rs. 20,000/- as liable to be forfeited. That the plaintiff has no right to enforce the sale agreement as it is binding upon the defendant in view of the conduct of the plaintiff as stated above. That it will not be out of place to mention here that the plaintiff is a Municipal contractor and he is solely responsible for the delay caused in mutation proceedings of suit schedule house. That the plaintiff has successfully managed in the Municipal office to delay the mutation proceedings so as to throw the blame on the defendant and cover his (plaintiffs) failure to pay the balance of Rs. 40,000/- on due date. That the present filing of this suit is nothing but to harass the defendant in one way or the other. That the plaintiff is not entitled for any relief as he is not showing his readiness to perform his part of contract. That, the plaintiff being the defaulter in the performance of the contract he is not entitled to claim any interest on his paid amount, besides the alleged damages. The defendant is rightly entitled to forfeit the aforesaid amount advanced to her, Hence, it is prayed that in the circumstances the suit may be dismissed with exemplary costs.
7. On the respective pleadings of the parties, the following Issues were settled by the trial Court.
1. Whether plaintiff committed breach of the agreement of sale?
2. Whether the plaintiff is entitled to specific performance of the agreement of sale together with damages? Or to damages if specific performance cannot be framed?
3. To what relief?
Before the trial Court, on behalf of the plaintiff, plaintiff had examined himself as PW-1 and Ex. A-1 to Ex. A-8 were marked. On behalf of the defendant, the defendant was examined as DW-1 through Advocate Commissioner and the son of the defendant was examined as DW-2 and Exs. B-1 to B-6 were marked. The trial Court on appreciation of both oral and documentary evidence had negatived the relief of specific performance of agreement of sale, but had ordered refund, and aggrieved by the same, the present Appeal is filed.
8. Sri Subba Rao, the learned Counsel representing the appellant had contended that the agreement of sale is not in dispute and the extension was made at the instance of the defendant only and the plaintiff was always ready and willing to perform his part of the contract. The learned Counsel also submitted that even in the written statement it was pleaded that the time was mutually extended and in such a case it cannot be said that the plaintiff was not ready and willing to perform his part of the contract. The learned Counsel also contended that Ex. A-7 is the notice issued by the defendant giving only two days time and even then in Ex. A-8 the plaintiff had expressed readiness and willingness. The learned counsel also contended that normally time is not the essence of the contract in the case of an agreement of sale relating to immovable property and the general rule is to grant specific performance and even though it is a discretionary relief, the discretion has to be exercised on sound judicial principles. The learned Counsel further contended that the trial Court having observed that it cannot be said that the plaintiff had committed any, breach of contract, should not have negatived the relief for specific performance. Even otherwise, the delay by itself cannot be a ground. The learned counsel had placed strong reliance on Ramesh Chandra v. Chuni Lal, , Sangali Solagan v. Nagamuhu Malavadi AIR 1925 Madras 227. Satyanarayana v. Yelloji Rao. .
9. Sri T. Veerabhadrayya, the learned counsel representing the respondent-defendant had contended that, several of the facts are not in dispute, but the main question itself to be decided is whether the trial Court had exercised the discretion properly in negativing the relief of specific performance and ordering refund only? The learned counsel also submitted that there was immediate need for the sale of the property and the urgency was clearly narrated in the agreement of sale Ex. A-1 itself. The learned counsel further submitted that extension of time, no doubt, is not disputed. Except the evidence of PW-1 there is no other evidence. The learned counsel further stated that the father of the plaintiff himself got the suit O.S. No. 232/80 filed and it is a collusive one since the plaintiff was not ready and willing to perform his part of the contract. The facts and circumstances are to be taken into consideration while appreciating the evidence on record in a suit for specific performance of contract of agreement of sale. The learned counsel also commented that though it is the case of the plaintiff that his father was looking after all these affairs; his father was not examined and none of the attestors had been examined relating to either Ex. A-1 or the endorsements and Ramaswamy also was not examined and in the absence of any evidence, inasmuch as the evidence of DW-1 and DW-2 is clear relating to the facts by virtue of which the plaintiff is not entitled to the relief, the discretion was exercised properly and hence the judgment arid decree of the trial Court are to be confirmed. The learned counsel also placed reliance on Kanshi Ram v. Om Prakash Jawal, .
10. Heard both the counsel.
11. The following points arise for consideration in this Appeal :
1. Whether the plaintiff is entitled to the main relief of specific performance of agreement of sale in the peculiar facts and circumstances?
2. Whether the trial court is justified in granting the alternative relict of refund of amount only?
3. To what relief?
12. In view of the fact that Points 1 and 2 are inter-linked, they can be discussed together.
13. The plaintiff was examined as PW. 1. The agreement was executed on 15-3-1980 and it was marked as Ex. A-1. It is the case of the plaintiff-PW. 1 that he agreed to purchase the suit, property for Rs. 60,000/-and paid Rs. 10,000/- as advance money on the date of Ex.A-1. Further a sum of Rs. 10,000/- was to be paid on or before 14-4-1980 as per the terms and conditions specified in Ex. A-1 and the amount of Rs. 10,000/ - i.e., the second sum of Rs. 10,000/- was paid on 10-4-1980 and an endorsement was made to that effect on the agreement of sale and the said endorsement was marked as Ex. A-2. On 7-6-1980 he had gone to Khammam to invite the defendant to Ongole to receive the balance of sale consideration and execute the sale deed in his favour and then the defendant requested time of one month due to her personal inconvenienee till 14-7-1980 and in proof of the extension of time till 14-7-1980 an endorsement was made in Ex. A-1 itself which was marked as Ex. A-3. The plaintiffs father received a telegram on 2-7-1980 to the effect that there are certain persons having rights in property and the said telegram was marked as Ex. A-4. The defendant again requested for extension of time for registering the sale deed and the time was extended up to 14-10-1980 and the said endorsement is Ex. A-5. The person who had sent the telegram filed O.P. No. 120/80 which was registered as O.S. No. 232/80 and the defendant also was served with summons and after receipt of notice the defendant came to Ongole on 16-8-1980 and issued a notice to him on the same day which was marked as Ex. A-7. The plaintiffs father met the defendant and asked him how he could take the sale deed when the suit was filed and the title itself is doubtful. But however, she insisted that as per the terms and conditions of Ex A-1 the sale deed should be taken/ otherwise the amount already paid will be forfeited and in such circumstances he got issued a reply notice dated 22-8-1980, marked as Ex. A-8. Except the evidence of PW-1 there is no other evidence forthcoming and though PW-1 had narrated several details which are within the knowledge of his father, his father was not examined and none others concerned with Ex. A-1 also had been examined.
14. It is no doubt true that several of the facts are not in dispute between the parties. The defendant had examined herself as DW-1 and she was examined by Advocate-Commissioner and she had deposed that her father Syed Hussain Saheb had to watch company arid she is the only daughter and by the lime of her marriage her husband was studying B.E. and her husband's family had no other property except the suit schedule house and her husband borrowed twice from Hanumantha Rao of Ongole mortgaging suit schedule house and the mortgage was discharged from out of the consideration of the sale of suit schedule house to her and the documents were handed over to the father of the plaintiff and these documents were filed in O.S. No. 232/80. The plaintiff herein was the 5th defendant in the said suit and these documents were marked as Exs. B-1 to B-3. Ex. B-1 is a certified copy of the sale deed dated 5-5-1952 by virtue of which she purchased the plaint schedule property. Ex. 3-2 is a certified copy of mortgage deed dated 4-6-1945 executed by her husband and others in favour of Hanumantha Rao. Ex. B-3 is a certified copy of another mortgage deed executed by her husband and others in favour of Hanumantha Rao dated 25-8-1947. She also further deposed about several details and had made it clear that at no point of time her right or title had been questioned and in fact she proposed to sell the house for the expenses of the education of her children and the marriages of her daughters. She also further deposed that her son told a broker by name Ramaswamy and delivered Exs. B-1 to 13-3 to him and the said Ramaswamy accompanied by the father of the plaintiff came to her and negotiated for the sale. It is also pertinent to note that neither the father of the plaintiff nor the said Ramaswamy had been examined though both of them know better about the transaction. For reasons best known. PW-1 had not chosen to examine them. DW-1 also further deposed about the urgency and how she was in need of money and under what circumstances she had executed Ex. A-1 and also had narrated all the details relating to the payments and also the endorsements. She had specifically staled that she had insisted immediate payment, but however the time was extended and it was extended at the instance of the plaintiffs father since he requested her that he could not raise money and she had never asked for extension of the time either under Ex. A-3 or under Ex. A-5. Mr. Usman, the younger brother of her husband had not sent a wire demanding partition to the effect that they have got claims over the properly. She also specifically denied that there was no collusion between herself and the plaintiffs in O.S. No. 232/80 either to cause Ex. A-1 or to file the suit. She also specifically denied that the father of the plaintiff and the plaintiff had colluded with Osinan and got issued Ex. A-4 and also made them to institute O.S. No. 232/80. No doubt. DW-1 also had further deposed about several other aspects relating to the importance of the locality and the probable price which the said property may fetch. She also further deposed that the plaintiff filed a suit and obtained order of attachment of another building by the side of trunk road and hence she was forced to deposit Rs. 25,000/- to raise that attachment and the plaintiff had not deposited the said amount even in the Court for the last 8 years and the plaintiff got himself added as 5th defendant in O.S. No. 232/80 after a lapse of five years of filing the suit. She also specifically deposed that the plaintiff and the father of the plaintiff are clearly conscious that others have nothing to do with the property but though there is no fault on her part in discharging her obligation under Ex. A-1 the plaintiff failed to discharge his obligation by not paying the balance of sale consideration. No doubt, she had also further deposed about the endorsements and who had scribed the endorsements and other details. Apart from the evidence of DW-1, the evidence of DW-2 also is available.
15. It is 110 doubt true that the learned Counsel for the appellant had stressed on the aspect that the extension of time was mutually agreed and hence absolutely there was no breach of contract on the part of the plaintiff. It is also not in dispute that several endorsements had been made extending time. As can be seen from the sequence of events and also the series of events, the trial Court in fact had discussed in detail the evidence of PW-1, DW-1 and DW-2, Exs.
A-1 to A-8 and also Exs. B-1 to B-G. The Trial Court also was well convinced that the evidence of PW-1 is corroborated in all material particulars by the evidence of DW-2, whereas the plaintiff had not chosen to examine either his father or Ramaswamy. Further, on the material available on record, the trial Court was satisfied that it is the plaintiff and the father of the plaintiff who had collusively got Ex. A-4 and made them to file the fictitious suit O.S. No. 232/80 and further a finding had been recorded that the plaintiff put the defendant into trouble by obtaining an order of attachment relating to other house making her to deposit Rs. 25,000/- and further the trial Court had discussed several other aspects in detail A1 paragraph 8 of the Judgment and had ultimately arrived at the conclusion that in the facts and circumstances of the case, the plaintiff is not entitled to the relief of specific performance. For the reasons recorded in detail by the trial Court, especially the appreciation of evidence of DW-1 and DW-2 and Exs. B-1 to B-6 and also the non -examination of Ramaswamy or the father of the plaintiff, at any stretch of imagination, it cannot be said that the judgment of the trial Court granting only the relief of refund of amount, is not justified. In fact, clear findings had been recorded why the trial Court was not inclined to exercise the discretion in granting the relief of specific performance, it is a peculiar case where for reasons best known the father of the plaintiff and the plaintiff had sought for certain properties, got a suit instituted and not being satisfied by it, had obtained an order of attachment relating to the other house of the defendant and made her to deposit some amount and had put the defendant into lot of trouble. All these aspects are borne out by record and as can be reflected from the evidence of PW-1 and also DW-1 and DW-2 and hence at any stretch of imagination it cannot be said that the discretion was not exercised properly by the trial Court. In fact specific questions were posed to DW-1 relating to the collusive nature of O.S. No. 232/80 and she had deposed categorically under what circumstances she is making such a statement.
16. No doubt, reliance was placed by the learned Counsel for the appellant on the decisions referred (1), (2) and (3) supra. The principles relating to the grant of specific performance or refusing specific performance no doubt are well settled. In the decision referred (4) supra, it was held that specific performance of agreement of sale of immovable property and the relief relating thereto lies within the discretion and such discretion should be exercised in accordance with justice, equity and good conscience and fairness to both the parties. In the light of the view expressed in the above decision, on appreciation of the facts and circumstances, since the trial court had exercised the discretion properly in decreeing the suit for refund only, I do not see any compelling reasons to arrive at a different conclusion or to record different findings in this regard and hence the findings recorded by the trial Court are hereby confirmed, Point No. 3 : In the light of the findings recorded above, in the facts and circumstances of the case, the Appeal is devoid of merits and accordingly the same is dismissed, but without costs.