Telangana High Court
B. Shilpadhar Reddy, And 2 Others vs Gone Srinivas Reddy, And 2 Others on 19 February, 2021
Author: M.S.Ramachandra Rao
Bench: M.S.Ramachandra Rao, T.Vinod Kumar
HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.VINOD KUMAR
CIVIL MISCELLANEOUS APPEAL NO.1004 OF 2019
J U D G M E N T:
(Per Sri Justice M.S.Ramachandra Rao) This Appeal is filed against the order dt.14.10.2019 in I.A.No.395 of 2019 in O.S.No227 of 2019 of the II Additional District Judge, Ranga Reddy District at L.B.Nagar.
2. The appellants are plaintiffs in the suit.
3. The appellants filed the said suit for specific performance of an agreement of sale Ex.P1 dt.24.01.2013 and for recovery of possession of the suit schedule property which is the subject matter of the said agreement of sale.
4. The suit schedule property is an extent of Acs.5.05 Gts., in Sy.Nos.95 to 99 of Medipally Village, Ghatkesar Mandal, Ranga Reddy District (presently Medchal - Malkajgiri District).
5. The respondents/defendants are admittedly the owners of the suit schedule property.
Contentions of the appellants/plaintiffs in the suit
6. The appellants contended that the respondents agreed to sell the suit schedule property for a sale consideration of Rs.2.4 Crores per acre; that they had paid a sum of Rs.2.45 Crores at the time of execution of the 2 agreement, and that the balance consideration is payable in three (3) quarterly instalments within 9 months from the date of release of the approved layout by HMDA. They also contended that the fee and other expenses for obtaining approved layout from the HMDA were paid by the appellants though the Application for such layout was made by the respondents and that the appellants had incurred an expenditure of Rs.60,00,000/- for the said purpose. They also alleged that they had paid a sum of Rs.3.42 Crores to the respondents from time to time on account of the above agreement of sale.
7. According to the appellants, the respondents did not pursue the layout approval with the HMDA authorities; that there were also certain Court cases pending in respect of the suit land; and so the appellants requested the respondents to clear the Court cases so that the balance sale consideration amount can be paid, but the respondents did not react.
8. The appellants contended that they are always ready and willing to abide by the terms and conditions of the agreement of sale; that they had also issued Ex.P2 legal notice on 04.11.2018 calling upon the respondents to receive the balance sale consideration amount and come forward for registration of regular sale deed in favour of the appellants; that the said legal notice was returned unserved with an endorsement that no such person was residing in the said address; and the respondents have avoided service of the said legal notice in collusion with the postal authorities.
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9. The appellants contended that the respondents were proceeding to alienate the suit land to third parties, that they have in all paid part consideration of Rs.7.1 Crores and they are ready and willing to pay the balance consideration amount.
I.A.No.395 of 2019
10. Along with the suit, the appellants also filed I.A.No.395 of 2019.
11. The appellants reiterated the contentions in the plaint and alleged that the respondents were trying to alienate the suit schedule property to third parties and so temporary injunction should be granted under Order XXXIX Rules 1 and 2 CPC restraining the respondents from alienating or changing the nature and identity of the suit land pending disposal of the suit.
The stand of the respondents 1-3
12. Written statement was filed by respondents 1 to 3.
13. According to them, the suit schedule property is not available to grant the alleged relief prayed by the appellants. They also contended that they had obtained layout from the HMDA and divided the subject land into plots by spending huge amount and the appellants were aware of this.
14. They admitted the execution of Ex.P1 agreement dt.24.01.2013 with the appellants and also admitted receipt of a consideration of Rs.2.45 Crores on the date of the agreement.
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15. They alleged that the balance consideration was payable in three quarterly instalments within 9 months from the date of release of the approved layout from the HMDA.
16. According to them, the respondents are also supposed to contribute for obtaining HMDA approved layout, but they paid only part payment of the said contribution. They denied that the appellants have paid Rs.60,00,000/- towards expenditure for obtaining approval.
17. According to them, draft layout was granted in October, 2015 and that according to the draft layout, they made house plots. They denied receipt of Rs.3.22 Crores consideration from the appellants on account of the agreement of sale. According to them, payments were not made within the time stipulated in the agreement, but were made over a long period of time till 2017. They also alleged that some of the receipts filed by the appellants are not connected to the transaction and are created.
18. According to them, all Court cases and litigations pending as on the date of entering into Ex.P1 agreement were disclosed to the appellants and knowing fully well of the same, the appellants came forward to enter into the agreement. It is claimed that the respondents had succeeded in most of the litigations and whatever was the residue were only false and frivolous ones and did not affect the respondents' rights and possession.
19. According to the respondents, the appellants were only land brokers and dealers and had no interest in retaining the land and there 5 was a clear understanding that the developed lands would be sold by them and on that basis the agreement of sale was to be taken forward. They contended that the appellants had nominated purchasers of each of the plot and as per the request and direction of the appellants, each of the respondents had registered individual plots in favour of the nominees of the appellants. A statement was annexed to the written statement that 13 plots comprising an area of 2540 square yards were sold by respondents 1 and 2 to the nominees of the appellants.
20. According to them, the alienations made by the respondents to the nominees of the appellants as above amount to fulfillment of the obligations towards the appellants in toto.
21. It is also pointed out that one of the plots was registered by the 2nd respondent in favour of the son of the 2nd appellant and it is stated that though the document mentions the consideration of Rs.17,08,000/-, no payment was in fact made for alienation of the said plot. According to the respondents, the appellants had suppressed these facts and so they are not entitled to seek specific performance or injunction.
22. It is alleged that the respondents, after obtaining draft approval layout from the HMDA, to avoid complications and disputes, partitioned the plots as per their entitlement under a registered partition deed Ex.R11 dt.21.03.2016 and this was to the knowledge of the appellants and their representatives.
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23. It was denied that the appellants were ready and willing to abide by the terms and conditions of the agreement of sale and it is pointed out that the entire sale consideration had to be paid in 9 months from the date of the layout approval, i.e., 23.04.2015, but the appellants went on paying in installments up to 2017 and had thus committed default of their obligations under the agreement.
24. They also pointed out that there is a discrepancy in the amount of sale consideration paid by the appellants because in the plaint they had stated that they paid Rs.7.1 Crores, but in the legal notice Ex.P2 dt.04.11.2018, they had stated that only Rs.3.4 Crores was paid.
25. According to the respondents, the HMDA through a letter dt.23.04.2015 accorded approval for draft layout to an extent of plotted area of 25,503 square yards and the area covered under the roads in the said draft layout was 12,064 square yards and the area of 4,118 square yards was earmarked for social infrastructure and open area. They allege that the appellants as per the agreement are entitled to only proportionate area. They also claimed that the area of 6,498 square yards is affected by the proposed 200 feet wide road as per Zonal Development plan and the said area also has to be deducted from the area offered to be sold to the appellants.
26. It is also pointed out that a sale deed dt.29.12.2017 was executed in favour of the 1st appellant for 244 square yards vide Document No.8074/2017 and even for this transaction, consideration was not paid. 7
27. Thus, the stand of the respondents is that the entire extent of land promised to be sold to the appellants has been duly registered in favour of the appellants or their nominees as per the agreed terms and the agreement of sale stands discharged and fulfilled. According to them, the filing of the suit is an attempt by the appellants to take the remaining extent of the land of the respondents and so this suit should be dismissed. Counter in I.A.No.395 of 2019
28. Counter affidavit was filed in I.A.No.395 of 2019 reiterating these pleadings in the written statement.
29. It is contended that the appellants have no prima facie case or balance of convenience and there is no equity also in their favour. The respondents contended that they are still owners of the rest of the plots made out in the remaining area together with all amenities and roads and common areas admeasuring Acs.4.34 Gts., out of Acs.9.39 Gts., and any interim order granted would cause prejudice to them. Events which occurred in the Court below
30. Initially on 15.03.2019 the Court below granted an order of status quo.
31. Thereafter, Exs.P1 to P21 were marked by the appellants and Exs.R1 to R27 were marked by the respondents.
8Order of the trial Court in I.A.No.395 of 2019
32. By order dt.14.10.2019, the Court below vacated the said status quo order granted on 15.03.2019 in I.A.No.395 of 2019 and dismissed the said I.A.
33. After noting that the respondents had agreed to convey Acs.5.05 Gts., out of Acs.9.39 Gts., covered by Sy.Nos.95 to 99 of Medipally Village to the appellants and that the respondents agreed to sell the land at Rs.2.4 Crores per acre and received Rs.2.45 Crores on the date of the agreement from the appellants, the trial Court observed that the balance of sale consideration was to be paid in three quarterly instalments in 9 months from the date of approval given by the HMDA. It also noted that there was a covenant in the agreement about the property being the subject matter of several litigations and that during the period of agreement if any dispute/litigation arises, the stipulated time period would not be applicable to the agreement.
34. The Court below then went on to hold that Court cases are pending and so the 9 month period fixed in the agreement to pay the balance consideration cannot apply. It however held that the appellants cannot claim Acs.5.05 Gts., out right and have to share the plotted land by foregoing the lands occupied by roads, open spaces and social infrastructure.
35. It then referred to the claim of the appellants in the paragraph dealing with the cause of action in the plaint that they had paid Rs.7.1 9 Crores under the agreement, and observed that as per Ex.P2 notice dt.04.11.2018 they stated that they had paid Rs.4.58 Crores; Exs.P4 to P11 and P13 to P21 were the documents evidencing the payment of amounts to the respondents, but out of these, Exs.P11, P15, P16 to P20 and P21 are the payments made by third parties whose names are not referred in the plaint and so they cannot be considered as payments made to the respondents. It then concluded that the appellants had so far paid Rs.3,05,68,000/- and it does not tally with the payments mentioned in the plaint and Ex.P2.
36. It then referred to Exs.R1 to R10 and Exs.R12 to R23 sale deeds said to have been executed by the respondents and noted that Ex.R10 sale deed dt.29.12.2017 stands in the name of the 1st appellant and another sale deed Ex.R22 stands in the name of the son of the 1st appellant.
37. It then concluded that the appellants had knowledge about the sale of plots by the respondents even in 2016 or at least by the date of Ex.R10, but they did not mention about it in the plaint and that in spite of having knowledge about non-availability of their share of plotted area out of Acs.5.05 Gts., they had filed the suit contending that they are entitled for the same from the respondents.
38. It recorded that the total extent of the land of the respondents was Acs.9.39 Gts., i.e., 399 guntas, out of which Acs.5.05 Gts., equivalent to 255 guntas was sold to the appellant under Ex.P1 agreement; the draft layout Ex.R26 was made only for Acs.9.39 Gts.; the plotted area in this is 10 shown as 22,817 square yards + area covered by mortgaged plots- 3911 + 1271 = 27,999 square yards. It held that the appellants are entitled for the plotted area of 17894.0977 square yards only.
39. It then referred to the contentions of the respondents that they had so far executed several sale deeds in favour of the appellants and their nominees, which is equivalent to the share of the lands of the appellants.
40. The Court below also noted that Ex.P27 shows that there was a pending suit relating to the land in question and Ex.R24 shows that no final approval of layout was given till 26.06.2019 and the appellants, having obtained Ex.R10 sale deed, have to prove that pending Court cases became hindrance to perform balance of contract of sale by paying the rest of the amount.
41. It observed that the appellants failed to prove that they paid Rs.7.1 Crores or Rs.4.58 Crores to the respondents and they had approached the Court with unclean hands and they are not entitled to the relief of temporary injunction.
The present Appeal
42. Challenging the same, the present Appeal is filed.
43. Heard Sri Vedula Venkataramana, learned Senior Counsel appearing for M/s. Bharadwaj Associates and Sri V.Hari Haran, learned counsel for the respondents.
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44. The learned counsel for the appellants pointed out that the approach of the trial Court is utterly perverse and contrary to the material on record.
In particular, he pointed out that the obligation to pay the balance consideration arises, as per Ex.P1 agreement of sale dt.24.01.2013, 9 months from the date of release of the approved layout by the HMDA; that admittedly final layout had not yet been sanctioned by the date of passing of the order by the Court below; and even otherwise because of pendency of litigation even according to the trial Court, the time stipulated for payment would be extended.
According to him, what was the actual consideration actually paid by the appellants and whether the receipts produced by the appellants are genuine or not is a matter for trial and the Court below erred in saying that the appellants failed to prove that they had paid Rs.7.1 Crores or Rs.4.58 Crores to the respondents.
He also pointed out that the draft layout was applied under Ex.R26 for Acs.9.39 Gts., and under Ex.P1 agreement to sell Acs.5.05 Gts. was promised to be sold to the appellants, and the agreement to sell nowhere mentions that there would be any reduction in the area agreed to be sold. He contended that so the Court below could not have come to the conclusion that only 17894.0977 square yards was agreed to be sold.
He also referred to the total area of the plots admitted to have been sold by the respondents in the written statement and stated that the total 12 area of 13 plots claimed to have been sold by the respondents to the nominees of the appellants comes only to 2540 square yards and so, for the balance extent, the respondents cannot say that the entire agreement to sell was fully performed and the Court below could not have accepted such a defence at all.
45. Sri V.Hariharan, learned counsel for the respondents supported the order passed by the Court below. He further stated that final layout has been sanctioned in the year 2020 after the lower Court disposed of I.A.No.395 of 2019 on 14.10.2019.
The consideration by the Court
46. We have noted the contentions of both sides.
47. We shall first refer to the terms of the agreement of sale dt.24.01.2013.
48. Clause (1) of the said agreement records that the respondents have agreed to sell the suit schedule property to the appellants at Rs.2.4 Crores per acre and that a sum of Rs.2.45 Crores was received by the respondents from the appellants towards part sale consideration.
49. Clause (2) refers to the application made by the respondents to the HMDA for approval of layout in respect of Acs.9.39 Gts. in Sy.Nos.95 to 99 of Medipally Village and the pendency of the same with HMDA. It also records that the appellants have agreed to pay balance sale consideration to the respondents in three quarterly equal instalments 13 within 9 months from the date of receipt of the approved layout by the HMDA.
50. Prima facie in our opinion, the words "from the date of release of the approved layout by the HMDA" mean that the balance sale consideration should be paid within 9 months from the date of release of "final layout" and not draft layout Ex.R26 which was allegedly released in October, 2015.
51. Moreover, Clause (2) also refers to certain litigations in respect of the suit schedule property and categorically states that during the period of the suit agreement if any dispute or litigation arises in respect of the property, the time period stipulated will not be applicable to the agreement.
52. Even the Court below agrees in para 11 of its order that the respondents have admitted about pending cases and so the 9 month period to pay the balance amount is not applicable.
53. Clause (7) of the agreement states that the respondents will have to forego the land towards formation of 200 feet road and in para 11 the Court below agreed that the respondents cannot ask the appellants to share the loss of land and the appellants cannot be affected by the same.
54. But it has given a finding, in our opinion, erroneously that the appellants cannot claim Acs.5.05 Gts., out right and they have to share the plotted land by foregoing lands occupied by roads and open spaces 14 and social infrastructure. We do not see any basis for coming to this conclusion.
55. Clause 8 of the agreement states that the appellants and the respondents had agreed to divide / share the land / plotted area according to the extents mentioned in the schedule of property immediately after release of the approved layout and development of the land. This prima- facie cannot mean that such division can be made in a way which would reduce the land agreed to be sold to the appellants. This is because Clause 8 itself states that the division or sharing of the plotted area should be according to the extent mentioned in the "schedule of property" and the schedule of property admittedly mentions Acs.5.05 Gts.
56. No doubt, Clause 9 of the agreement contemplates that the respondents should execute registered sale deeds in respect of the schedule property or the plots made therein in favour of the appellants or their nominees periodically on receipt of sale consideration to the extent of land / plots covered by these sale deeds.
57. As per the respondents only 13 registered sale deeds covering only a total area of 2540 square yards were executed in that manner including the sale deed Ex.R22 dt.06.06.2016 in favour of the son of the 2nd appellant and the sale deed Ex.R10 dt.29.12.2017 in favour of the 1st appellant.
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58. If according to the trial Court, the appellants are entitled to a plotted area of 17894.0977 square yards, the sale of a mere 2540 square yards by the respondents in favour of third parties or appellant No.1 or son of appellant No.2 cannot be said to exhaust the entire area agreed to be sold by the respondents to the appellants.
59. Thus, the plea of the respondents that by executing these 13 sale deeds they have completely transferred the land agreed to be sold under Ex.P1 to the appellants is primafacie dishonest and false.
60. Moreover, when the sale deed Ex.R10 dt.29.12.2017 in favour of appellant No.1 and the sale deed Ex.R.22 dt.06.06.2016 specifically mentioned about receipt of consideration by the respondents, it is prima facie not open to the respondents to plead that no such consideration was paid for those two transactions. This is also, in our opinion, is prima facie a false plea raised by the respondents.
61. Having agreed to sell Acs.5.05 Gts. under Ex.P1 to the appellants, the respondents cannot, prima facie, also execute any registered partition deed dt.21.03.2016 (Ex.R11) as is mentioned in para 8 of the written statement behind the back of the appellants and divide the available land among themselves and cheat the appellants out of the land which the respondents have agreed to sell.
62. The respondents cannot also complain about the payment of sale consideration over a period of time till 2017 by the appellants because the time limit specified in Clause 2 of 9 months will not apply till a 16 'final layout' is sanctioned by the HMDA. It was not open also to the respondents to proceed to sell the area which the appellants were entitled to get under Ex.P1 agreement even prior to the approval of the final layout which they were proposing even according to their written statement / counter.
63. Merely because there is a discrepancy in the amount mentioned in the cause of action paragraph in the plaint and in Ex.P2 legal notice dt.04.11.2018, it cannot be said that the appellants have come to Court with unclean hands overlooking the prima-facie dishonest conduct of the respondents as pointed out above.
64. Several receipts had been produced by the appellants along with the plaint which are also marked as Ex.P4 to P11, P17 to P21 and if these payments, as also the payments which the respondents received from the 13 plots allegedly sold at the instance of the appellants, are taken into account, it cannot be denied that the respondents have received a substantial portion of sale consideration from the appellants.
65. We are therefore of the opinion that the approach of the Court below was perverse and it did not properly appreciate the material on record in coming to the conclusion that the appellants are not entitled to interim relief pending disposal of the suit in I.A.No.395 of 2019.
66. Accordingly, this Appeal is allowed with costs of Rs.10,000/- (Rupees ten thousand only) to be paid by the respondents to the appellants; order dt.14.10.2019 in I.A.No.395 of 2019 in O.S.No.227 of 17 2019 of the II Additional District Judge, Ranga Reddy District at L.B.Nagar is set aside; and the said I.A. is allowed; and the respondents are restrained from changing the nature of the suit schedule property or inducting third parties into the said property by alienating the same in any manner pending disposal of the suit.
67. However the Court below shall decide the suit on merits after trial without being influenced by any findings or observations made in this order.
68. Pending miscellaneous petitions, if any, in this CMA shall stand closed.
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M.S.RAMACHANDRA RAO, J
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T.VINOD KUMAR, J
Date: -02-2021
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