Andhra Pradesh High Court - Amravati
Varam Chinna Venkatesulu vs Indian Financial Association on 27 September, 2022
THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
Appeal Suit No.189 of 2017
JUDGMENT:
This appeal, under Section 96 CPC, is preferred by the unsuccessful plaintiff aggrieved by the judgment and decree, dated 29.12.2016, passed in O.S.No.26 of 2011 on the file of the Court of I Additional District Judge, YSR Kadapa District.
2. Heard Sri V.R.Reddy Kovvuri, learned counsel for the appellant/plaintiff and Sri Solomon Raju, learned counsel for the respondents/defendants.
3. The case of the plaintiff, in brief, is that the defendants claim to be owners of the property mentioned in the schedule having purchased the same from Paidikaluva Danam under registered sale deed, dated 28.08.2002, vide document No.4988 of 2002. They approached the plaintiff and expressed their intention to sell the same to the plaintiff at Rs.12,000/- per cent and entered into an agreement of sale with the plaintiff on 18.09.2010. On the date of the agreement, the plaintiff paid an advance of Rs.3,00,000/-. The defendants agreed to get the property surveyed by a government surveyor. Time fixed is 10.02.2011 to perform their part of contract under the agreement. As per the agreement, after the defendants 2 BSB, J A.S.No.189 of 2017 fulfill the obligations under the contract, then only, the plaintiff has to pay the balance of sale consideration to get the property registered either in the name of the plaintiff or his nominee. Both the defendants failed to get the property measured by a surveyor in spite of repeated demands made by the plaintiff within the time fixed under the agreement. The defendants failed to produce any Encumbrance Certificate. The plaintiff has been requesting the defendants to execute and register a sale deed in favour of the plaintiff, but the defendants have been postponing the same on one pretext or the other. The plaintiff got issued a legal notice, dated 05.02.2011, requiring the defendants to appear before the Sub- Registrar, Kadapa, to execute and register a regular sale deed at his expenses. However, the defendants refused to receive the said notices and returned the notice covers and failed to appear before the Sub-Registrar, Kadapa, on 09.02.2011. The plaintiff sent another notice requiring the defendants to appear before the Sub- Registrar, Kadapa, on 09.02.2011, to execute and register a regular sale deed at his expenses. The plaintiff appeared before the Sub- Registrar on 09.02.2011, but the defendants did not turn up. Thus, the intention of the defendants goes to show that they are evading execution of the registered sale deed in favour of the plaintiff. Instead of appearing before the Sub-Registrar, the defendants gave a reply through their counsel, on 09.02.2011, with all false 3 BSB, J A.S.No.189 of 2017 allegations and contending that they had returned the token advance amount of Rs.3,00,000/- to the plaintiff, however, the plaintiff failed to return the copy of sale agreement executed by the defendants. The plaintiff understood that the defendants are not showing any interest to perform their part of the contract, for the reasons best known to them, and as such, the plaintiff is constrained to file the suit seeking the relief of specific performance of agreement of sale and in the alternative for refund of the advance amount together with penalty of equal amount.
(b) The defendants filed a written statement denying the plaint averments and contending that the suit is barred by law of limitation. The plaint schedule property of an extent of Ac.1.00 cents is situated in Survey No.18/3 of Ramaraju Palli village fields of Kadapa. The defendants entered into an agreement with the plaintiff for consideration of Rs.12,000/- per cent and the defendants received an amount of Rs.3,00,000/- from the plaintiff on 18.09.2010 towards token advance. On the same day, the plaintiff prepared the sale agreement on a non-judicial stamp paper worth Rs.50/- fixing the deadline as 20.12.2010 for execution of the agreement. As per the said agreement, if the registration process is not done on or before 20.12.2010, the same agreement would become void. While so, the plaintiff subsequently tampered the agreement date by changing the date as February 10, 2011. 4
BSB, J A.S.No.189 of 2017 Hence, the said document is invalid and forged. The plaintiff has not complied with the terms and conditions of the agreement, dated 18.09.2010, by getting the registration process done at his cost before the stipulated date, that is, 20.12.2010, and as such, the agreement has lapsed and become invalid. However, on humanitarian grounds, the defendants returned the advance amount of Rs.3,00,000/- to the plaintiff on 22.12.2010. But, the plaintiff failed to return the copy of original sale agreement executed by the defendants previously. Further, the schedule property is an assigned D.K.T land which cannot be alienated and the same is not liable for registration and the church authorities have resolved to construct an old age home, school building and community hall etc., for the poor people in the schedule property. There is no cause of action to file the suit and the suit is liable to be dismissed with costs.
4. On the basis of the above pleadings, the trial Court framed the following issues for trial:
(i) Whether the agreement of sale, dated 18.09.2010 is true, valid and binding on the defendants?
(ii) Whether the due date/last date mentioned in the agreement of sale, dated 18.09.2010, is 20.12.2010 is tampered as 10.02.2011?
(iii) Whether the defendant returned the token advance amount of Rs.3,00,000/- to the plaintiff on 23.02.2012?5
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(iv) Whether the suit schedule property is D.K.T land not liable for alienation?
(v) Whether the plaintiff is entitled for specific performance of agreement of sale, dated 18.09.2010 and execution of the registered sale deed in terms of the agreement of sale?
(vi) Whether the plaintiff is entitled for suit claim amount of Rs.6,00,000/- as prayed for?
(vii) Whether the plaintiff is entitled for permanent injunction as prayed for?
(viii) To what relief?
5. On behalf of the plaintiff, PW1 was examined and exhibits A1 to A8 were marked. On behalf of the defendants, DWs 1 to 4 were examined and exhibits B1 and B2 were marked.
6. Having heard the submissions of both sides, the trial Court decreed the suit for recovery of Rs.6,00,000/- with interest at 12% per annum from the date of the suit till the date of payment on the advance amount of Rs.3,00,000/- and rejected the relief of specific performance of contract and permanent injunction.
7. Hence, the aggrieved plaintiff is before this Court in this appeal. The appellant/plaintiff mainly contended in the grounds of appeal that the defendants failed to file a scrap of paper to substantiate the suit schedule property was assigned in their favour or in favour of their vendors, that the defendants having agreed to sell the property in favour of the plaintiff cannot go back from the terms of the agreement, that the trial Court failed to notice that it is 6 BSB, J A.S.No.189 of 2017 not open for the vendor to plead lack of title for himself in a suit for specific performance and thereby, committed gross illegality in refusing to grant specific performance on the ground that the schedule property is an assigned land and that the same cannot be transferred as it is prohibited under the provisions of A.P Assigned Lands (Prohibition of Transfers) Act, 1977, that the trial Court failed to observe that the defendants could not prove and establish that they have returned the advance amount and the reasoning assigned by the trial Court for dismissing the claim of the plaintiff seeking specific performance of the agreement of sale is totally unsustainable.
8. Insofar as execution of agreement of sale is concerned, the defendants have taken dual stands diagonally opposite and inconsistent by saying on one hand that the agreement of sale was entered into with the plaintiff for the land in Sy.No.18/3 for an extent of Ac.1.00 cents for a consideration of Rs.12,000/- per cent and an amount of Rs.3,00,000/- was received as token advance on 18.09.2010, on the other hand, it is also pleaded in the written statement that it is totally false that the plaintiff filed the suit against the defendants for specific performance of agreement of sale, dated 18.09.2010. When it comes to the evidence also, DWs 1 & 2 spoke about execution of the agreement. In the chief examination itself, DW1, as in the written statement, admitted 7 BSB, J A.S.No.189 of 2017 execution of the agreement as well as receipt of advance amount of part of consideration. He identified his signatures on exhibit A1, agreement of sale, dated 18.09.2010 on each page (exhibit A1 is two sheets of paper). However, DW2 in his evidence in chief examination itself deposed that the 2nd defendant never executed the agreement of sale. In fact, exhibit A1 contains the signatures of DWs 1 & 2. In his cross-examination, he denied his signature on vakalat, summons received by him and also the postal acknowledgment and in continuation thereof, he denied his signature on exhibit A1 also. That apart, in the written statement, there is also a specific pleading taken to the effect that the amount of advance was returned to the plaintiff since sale deed was not got executed before the stipulated date, i.e., 20.12.2010, which was originally agreed between the parties for performance. For the time being, not going into the aspect of the stipulated date, it is clearly pleaded that the amount received as advance was returned to the plaintiff. It unambiguously indicates execution of the agreement of sale and receipt of consideration there under as pleaded by the plaintiff. An issue was also framed at serial No.3 as to 'whether the defendant returned the token advance amount of Rs.3,00,000/- to the plaintiff on 23.02.2012?'. Therefore, there is no hesitation in holding that there is clear admission of the defendants about execution of the agreement of sale under exhibit 8 BSB, J A.S.No.189 of 2017 A1 and also receipt of part of consideration amount in advance on the date of the agreement itself agreeing to sell at the rate of Rs.12,000/- per cent of the property of an extent of Ac.1.00 cents.
9. However, the suit is resisted on two counts mainly. They are
(i) lapse of agreement on 20.12.2010 and (ii) suit schedule property is inalienable as it is a D.K.T patta land.
10. Coming to the first aspect, it is pleaded in the written statement that originally the date fixed for performance is stipulated as '20.12.2010', but, it is tampered as '10.02.2011'. In this regard, a perusal of exhibit A1 shows that the entire contents of the document were typewritten except at three places, where space was left for the date to be filled in, and accordingly, the date was noted as 'Feb 10, 2011' at three places and nowhere, there is any correction or overwriting. Even for observation with a naked eye, no element of altering the date can be seen from page No.1 of the agreement. Even when DW1 admitted his signature on page No.1 in his cross-examination, he has not pointed out anything regarding fabrication of the date mentioned at three places by hand with pen. Moreover, the serial number of the stamp papers used for fill filling pages of the same document are in the same serial order bearing same date. As such, the defence taken that date for performance was tampered is not tenable. Before expiry of the last date for 9 BSB, J A.S.No.189 of 2017 performance of the agreement, the plaintiff got issued a legal notice to receive the amount of balance sale consideration and execute the sale deed. It is not even the case of the defendants that the plaintiff is not ready and willing to perform his part of contract. In fact, no issue was also framed for want of denial as to whether the plaintiff is ready and willing to perform his part of contract. According to the defendants, the plaintiff failed to perform his part of contract on or before 20.12.2010 and thereby, the agreement has become invalid and unenforceable and is barred by limitation. Since it is already held that the stipulated date for performance is not 20.12.2010, but 10.02.2011, it cannot be held that the plaintiff was not ready before the stipulated date. In fact, the plaintiff obtained No Objection Certificate under exhibit A7 also. It is not even the case of the defendants that the plaintiff has no capacity to pay the balance sale consideration to contend that the plaintiff was not ready on his part.
(b) Though the defendants pleaded that the amount of advance was returned to the plaintiff on 20.12.2010, there is absolutely no iota of evidence. When everything regarding entering into agreement is done in writing, it is unbelievable that such huge amount would be paid without taking any receipt showing refund of the amount and canceling the agreement. Without any hesitation, it can be observed that the defendants failed in proving that the amount of advance was returned on 20.12.2010 or any other date 10 BSB, J A.S.No.189 of 2017 so far. Considering all these facts, it is clear that in spite of the plaintiff being ready to get the sale deed registered and perform his part of contract, the defendants failed to perform their part of contract.
11. Insofar as the nature of the land is concerned, if the property was allotted to the vendor of the defendants under exhibit A2 as an assigned land, imposing a condition of inalienability, the defendants failed to explain how they could secure a registered sale deed from their vendor. But, it is to be noticed that in the schedule to the agreement, the land is described as "Sarkar Punji", meaning thereby, it is a government land. The same description is given in exhibit A2 as well. Alienability of assigned land depends on the terms and conditions in the patta issued. The contents of exhibit A2 do not speak clearly about the manner of acquisition of title to the vendor. When there is no prohibition for sale of land under exhibit A2, how the alienation is challenged now by the defendants is unexplained, since the nature of land is not changed after exhibit A2. It is contended that the fact that the plaintiff obtained NOC under exhibit A7 itself indicates regarding inalienability. On issue of exhibit A7, inalienability cannot be an issue at all to transfer the property. The defendants have not challenged the correctness of issuance of exhibit A7. It is only DW4 who expressed his doubt about it and said that he cannot confirm as to whether it was issued 11 BSB, J A.S.No.189 of 2017 by the authority concerned or not. DW3 who is the Sub-Registrar voluntarily deposed in his evidence in chief examination that in the year 2012, the R.D.O sent a letter to their office mentioning that the land in Sy.No.18/3 is not a government land and the land can be transferred and a document can be registered. He further stated that exhibit A7 is the letter received from R.D.O., but, as per their records, the date of proceedings is 10.02.2012 and received in their office on 05.03.2012. However, he further deposed confirming the suggestion that by the date of registration, i.e., 28.02.2002, the land was a government land. He further stated that no gazette proceeding was received in their office notifying the disputed land as patta land and that as per the list of survey numbers received from the revenue department in the year 2007, the disputed land is a D.K.T patta land. But he could not give the date and number of the proceedings received in the year 2007. He speaks from his personal knowledge that the land in sy.Nos.18/1 and 18/2 are government lands. Whatever he deposed from his memory, not supported by any document, cannot be taken as gospel truth. Whatever he admitted from the record is that exhibit A7 was received and as per which the land in Sy.No.18/3 is not a government land and can be transferred and a document can be registered.
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12. Insofar as the evidence of DW4, who is the Tahasildar is concerned, he deposed in his chief examination that the land in Sy.No.18, totally consists of Ac.17.24 cents and the entire land is a government land. But, no record to that effect is filed except giving his oral evidence. He further stated that his predecessors-in-office, in the year 2007, sent a letter to the Sub-Registrar, Kadapa, showing Sy.No.18/3 as a D.K.T land. This part of evidence also is not supported by any documents. Without any record, he gave evidence saying that the entire land in Sy.No.18 was allotted to poor sections of people and in that process, land in Sy.No.18/3 was allotted to Pydikaluva Danam, who belongs to Schedule Caste community. He further stated that as per the letter of his department, dated 31.03.2007, issued by Tahasildar, Kadapa, to the Joint Sub Registrar, Kadapa, the entire land in Sy.No.18 is a government land and the same is not transferable. He further stated that no NOC is required for registering patta land. In his cross-examination, he could not say when Sy.No.18 was subdivided nor could he say number of sub divisions in Sy.No.18. He admitted that he was giving evidence based on 10-1 Register. However, he further stated that by then, 10-1 accounts were not in existence and the government abolished them about 15 years back. During cross-examination conducted on the same day when the chief examination was conducted, he stated that he had never deposed 13 BSB, J A.S.No.189 of 2017 that Pydikaluva Danam belongs to SC community. Thus, there are contradictory statements given by him in his chief examination and cross-examination. He voluntarily expressed his inability to confirm whether exhibit A3 is genuine document or not. Thus, his evidence is not of much use to ascertain whether the suit schedule land is a government land and thereby, there is prohibition of sale as on the date of execution of exhibit A2 or as on the date of execution of the suit agreement of sale under exhibit A1.
13. Thus, the defendants could not establish that the plaint schedule property is inalienable. The relief of granting specific performance is a discretionary relief, which means such discretion should be judicious and governed by fairness and must not be arbitrary. Normally, a contract must be honoured for its enforcement as both parties willfully enter into it, unless it is shown as unenforceable or if there are any laches on the part of the plaintiff disentitling him for specific performance Court should not decline to grant specific performance merely because discretion is vested with the Court either to grant or to refuse to grant such relief.
14. Learned counsel for the appellant/plaintiff relied on a decision in Mettapalli Venkata Rao and Ors. vs. Kotla Alivelu 14 BSB, J A.S.No.189 of 2017 Mangatayaramma and Ors.1, wherein, at paragraph No.16, it was held as follows:
"16. ........ In a suit for specific performance filed by the purchaser, the vendor cannot put forward the plea that he had no title or defective title, but if the suit is by the vendor, the purchaser can plead that the vendor had no title or had defective title as a defence. The present suit is one filed by the purchaser and the plea now put forth by the appellant No. 1 as to the defect in his title is unavailable to the appellants and specific performance cannot on that ground be denied."
The appellant further relied on a decision in Tirumalasetty Santhamma and Ors. vs. Yenuganti Venkaiah 2, at paragraph No.9, it was held as follows:
"9). Assuming for a moment for the sake of argument that there is partition among the defendant and his two sons as contended by the defendant, in my opinion, the position does not change with regard to the relief to be granted by the Court in this suit. The oldest principle laid down by Division Bench of this Court in Abdul Hakeem Khan Vs. Abdul Mannan Khadri AIR 1972 AP 178 is to the following effect:
10) The reason for the absence of or had defective title is obvious. It is settled law that if a person executes an agreement to sell property, the vendor is not entitled to 1 1997 (4) ALD 121 (D.B) 2 2013 (5) ALD 484 15 BSB, J A.S.No.189 of 2017 put forward, in a suit for specific performance by the purchaser the defence that the vendor had no title. It is open to the purchaser to set up a defence that the vendor had no title or has defective title in a suit for specific performance by the vendor. But the vendor cannot set up defective in his own title as a defence in a suit for specific performance by the purchaser. In Balushami Aiyar V. Lakshmana Aiyar, ILR 1921 Mad 172 (FB) it is observed:
"Where a person sues for specific performance of an agreement to Coney and simply impleads the party bound to carry out to the agreement there is no necessity to determine the question of the vendors title and the fact that the title which the purchaser may acquire might be defensible by a third party is no ground for refusing specific performance if the purchaser is willing to take such title as the vendor has. But where a party seeking specific performance seeks to bind the interests of persons not parties to contort alleging grounds which under Hindu law would bind their interests and enable the vendor to give a good title as against them and makes them parties, it is difficult to see how the question as to the right of the contracting party to convey any interest except his own can be avoided and a decree passed, the effect of which will merely be to create a multiplicity of suits The said decision was rendered by Division Bench of this Court basing on Full Bench decision of the Madras High Court. The principle is that it is not open to the vendor to plead lack of title for himself in a suit for specific performance and that at the same time it is open to the purchaser to plead so. On the other hand, the appellants' 16 BSB, J A.S.No.189 of 2017 counsel placed reliance on latter Division Bench decision of this Court in Toufiq AH Mirza V. Baderunnisa [2002 (5) ALT 628 (D.B.)] in support of his contention. This latter decision of Division Bench of this Court has no application to facts of this case having regard to factual context in which the said decision was rendered by the Division Bench. The said decision was rendered when the question was as to whether a decree for specific performance could be granted by the Court in a case where the plaintiff admits lack of title in the person from whom the properties are sought to be purchased. This position does not arise in the case on hand. The plaintiff is not admitting the defendant lacking title for the suit property sold to him under Ex. A1 agreement. In the latter decision, there was a specific averment in the plaint to the effect that the first defendant therein was not the owner but agreement holder from the owner who is the 2nd defendant therein. In those circumstances, the Division Bench of this Court rendered the above pronouncement. The said factual context has no application to this case. Thus, the appellants fail both on facts as well as in law under Section 17 of the Specific Relief Act, 1963.
15. In the present case, as can be seen from the pleadings of both parties and the evidence discussed above, since the beginning, the defendants are trying to avoid performance of contract of sale and even went to the extent of blowing hot and cold at the same time to deny execution of the agreement. It is not just a party approaching a Court seeking equitable relief of specific performance 17 BSB, J A.S.No.189 of 2017 must come with clean hands, the defendant who is opposing to grant equitable and discretionary relief must also come with clean hands so as to seek a Court to exercise discretion against the plaintiff and in favour of the defendants for refusing to grant specific performance.
16. DW1 admitted in his cross-examination that their association used to purchase the property and sell to others. Therefore, it is not for the first time the association has developed the idea of selling its properties. Though the defendants pleaded that they intended to use the schedule property for construction of old-age homes, schools etc., there is no iota of evidence that the association has ever taken any such resolution at all. Considering all these facts, as a whole, it is a case where a Court should exercise its discretion to grant specific performance instead of being swayed away by the terms of the contract incorporating payment of damages apart from refunding the amount of advance sale consideration. Without properly appreciated the evidence on record, the trial Court erred in declining specific performance and granting refund of the amount of sale consideration with interest and amount of damages as stipulated in the agreement. Therefore, the decree and judgment impugned in this appeal are liable to be set aside. The suit is liable to be decreed for specific performance as prayed for.
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17. Further, since long time had elapsed between the date of agreement of sale and the date of decree, and the value of the property increases by manifold by now, keeping in view the fact that the defendants have in their possession both property and the advance amount of Rs.3,00,000/-, this Court directs reasonable term of payment of interest on the balance of sale consideration. This view is fortified by a decision of this Court in Pydi Ramana @ Ramulu v. Devarasetty Hanumatha Rao3, wherein under similar circumstances, while granting specific performance, this Court directed the plaintiff to pay twice the amount of sale consideration stipulated the agreement, relying on the decision of the Supreme Court in Gobind Ram v. Gian Chand 4 and also referring to the divergent views taken in Nirmalaanand v. Advent Corporation (P) Ltd. and others5.
18. In the result, the appeal is allowed and the suit is decreed directing the defendants to execute registered sale deed on deposit of balance consideration of Rs.9,00,000/- with interest at the rate of 12% per annum from the stipulated date, that is, 10.02.2011 till the date of deposit, which shall be made on or before 27.11.2022. If the defendants fail to execute the registered sale deed, the 3 2011 (2) LS 355 4 (2000) 7 SCC 548 5 AIR 2002 SC 2290 19 BSB, J A.S.No.189 of 2017 plaintiff is at liberty to get the sale deed executed by Court through due process of law.
There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this appeal shall stand closed.
_________________ B. S. BHANUMATHI, J 27rd September, 2022 RAR