Andhra Pradesh High Court - Amravati
Mogadati Ramatulasamma vs Nandru Nagendramma on 3 January, 2025
APHC010316012016
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3369]
(Special Original Jurisdiction)
FRIDAY,, THE THIRD DAY OF JANUARY
TWO THOUSAND AND TWENTY
TWENTY-FIVE
PRESENT
THE HONOURABLE SRI JUSTICE T
T. MALLIKARJUNA RAO
APPEAL SUIT NO: 1117/2016
Between:
Mogadati Ramatulasamma ...APPELLANT
AND
Nandru Nagendramma ...RESPONDENT
Counsel for the Appellant:
1. P S P SURESH KUMAR Counsel for the Respondent:
1. SURESH KUMAR POTTURI The Court made the following JUDGMENT:
1. The Appeal, under Section 96 of the Code of the Civil Procedure, 1908 (for short, 'C.P.C.'), is filed by the Appellant/ Appellant/Defendant challenging the decree and judgment dated 27.10.2016 in O.S.No.19 of 2014 passed by the learned XVI Additional District and Sessions Judge at Nandigama, Krishna District (for short, 'the trial Court').
2. Respondent is the Plaintiff Plaintiff, who filed the suit in O.S.No.19 of 2014 for Specific Performance erformance of sale agreement dated 07.02.2014 seeking to direct the defendant to receive the balance sale consideration of Rs.11,25,000/-
Rs.11,25,000/ and execute a regular Registered egistered sale deed in respect of plaint schedule property in favour of the Plaintiff at his costs or in alternative to pass a decree for the amount of Rs.3,75,000/- with interest at 24% per annum from the date of 2 transaction till the date of realization. The Appellant herein is the defendant in the suit.
3. Referring to the parties as arrayed in the suit is expedient to mitigate confusion and better comprehend the case.
4. The factual matrix, necessary and germane for adjudicating the contentious issues between the parties inter se, may be delineated as follows:
(a) The Defendant is the sole owner of property No. 4, measuring 145.2 sq. yards, situated in R.S. No. 323 of Jaggaiahpet, along with an RCC roofed building (D.No. 6-591/4, Assessment No.1069006099, Electricity Service Nos. 5528 and 5527) (hereinafter, it would be referred as 'plaint schedule property'). The Defendant purchased this property from Kolagani Kondaiah through a registered sale deed on 17.09.2005. On 07.02.2014, the Defendant offered to sell the property to the Plaintiff for Rs. 15,00,000/- in Bill Maktha. The Plaintiff accepted the offer and paid Rs. 3,75,000/- as earnest money. An agreement of sale was executed the same day, stipulating that the Plaintiff would pay the remaining Rs.11,75,000/- by 07.05.2014, and the Defendant would clear all dues, including taxes, electricity, and water charges.
(b) The Plaintiff holds sufficient funds in the form of security deposits (Nos.0333879 and 0333880) totalling Rs.9,00,000/- and a fixed deposit (No.0333882) of Rs.4,50,000/- in the same bank under her husband's name, with the fixed deposit maturing on 12.02.2014. The Plaintiff has been ready and willing to perform her obligations under the sale agreement since its execution. Despite this, when she approached the Defendant to complete the sale, the Defendant delayed, citing various excuses. On 04.04.2014, Plaintiff issued a legal notice confirming her readiness to pay the balance consideration and complete the sale at her own cost. In response, the Defendant received the notice but sent a caveat petition with false allegations, denying the sale agreement instead of proceeding with the 3 agreement. The Plaintiff later discovered the Defendant's intention to avoid fulfilling her part of the contract for wrongful gain.
5. The Defendant filed a written statement denying the material allegations in the plaint, claiming that the sale agreement was false, fraudulent, and fabricated, lacking any consideration. She contended that in February 2014, with witness, she borrowed an interest-free hand loan from Plaintiff to settle her bank debt. Satyanarayana, Atluri Sridhar, and Pakalapati Kanaka Raju present. During this transaction, the Plaintiff allegedly obtained the Defendant's signatures on blank stamped papers as collateral security. The Defendant asserted that the Plaintiff issued a notice on 04.04.2014 with false claims; there was no contract between the Plaintiff and Defendant, denying the existence of the sale agreement. The legal notice issued by the Plaintiff is not valid in the eye of the Law. She asserted the suit was fictitious, devoid of merit, and filed with malafide intentions, seeking wrongful gain. The Defendant requested the suit be dismissed with costs, asserting no equities favouring the Plaintiff.
6. Based on the above pleadings, the trial Court framed the following issues:
(1) Whether the Defendant offered to sell the schedule property to the Plaintiff for an amount of Rs.15,00,000/- entitled to a sale agreement with the Plaintiff by receiving earnest amount of Rs.3,75,000/- on 07.02.2014? (2) Whether the Plaintiff obtained the Defendant's signature on stamped paper in connection with the borrowal money by the Defendant from the Plaintiff in February, 2014?
(3) Whether the Plaintiff is entitled to the relief of specific performance in pursuance of the agreement of sale dated 07.02.2014? (4) To what relief?
7. During the trial, PWs.1 to 3 were examined on behalf of the Plaintiff and marked Exs.A1 to A3 and Exs.X1 to X4. DWs.1 to 3 were examined on behalf of the Defendant, and no documents were marked on behalf of the Defendant.
48. After completing the trial and hearing the arguments of both sides, the trial Court decreed the suit with costs, directing the Plaintiff to pay the balance sale consideration of Rs.11,25,000/- to the Defendant or deposit the same within 15 days from the date of judgment. On such deposit, thereafter, within 15 days, the Defendant shall execute a regular sale deed and register the same in favour of the Plaintiff at the Plaintiff's costs in pursuance of the sale agreement dated 07.02.2014 regarding the plaint schedule property.
9. I have heard learned counsel appear on behalf of the respective parties at length and have gone through the judgment and findings recorded by the learned trial Court while decreeing the suit. I have also re-appreciated all the evidence on record, including the depositions of witnesses examined.
10. Sri P.S.P.Suresh Kumar, counsel for the Appellant/Defendant, argues that the trial Court erred in not framing an issue on the Plaintiff's readiness and willingness and failing to examine G. Ramesh, the scribe of the agreement, which he claims is fatal to the Plaintiff's case. He further contends that the trial Court misinterpreted the evidence of DW.2 and wrongly concluded on Issues 1 and 2. Learned counsel highlights that the attestor of the sale agreement admitted to signing on blank paper, suggesting that Ex.A1 was not executed with mutual consent. He asserts that the trial Court incorrectly concluded that the non-issuance of a reply was detrimental to the Appellant's case and misinterpreted Exs.X1 to X4 concerning the Plaintiff's readiness and willingness.
11. Per contra, Sri Suresh Kumar Potturi, learned counsel representing the Respondent / Plaintiff, argued that the trial Court appreciated the case facts and reached a correct conclusion. The reasons given by the trial Court do not require any interference.
12. Concerning the pleadings in the suit, the findings recorded by the trial Court and in light of the rival contentions and submissions made on either side before this Court, the following points would arise for determination:
51. Is the trial Court justified in granting relief of specific performance of the sale agreement, dated 07.02.2014?
2. Does the judgment passed by the trial Court need any interference?
POINTS NO.1 AND 2:
13. The First Appellate Court, being the final Court of fact, has jurisdiction to reverse or affirm the trial court's findings. Considering the nature and scope of the First Appellate Court in Vinod Kumar v. Gangadhar 1 , the Hon'ble Supreme Court held that:
15. Again, in B.V. Nagesh v. H.V. Sreenivasa Murthy2, this Court, taking note of all the earlier judgments of this Court, reiterated the principle as mentioned above with these words:
3. How the regular first Appeal is to be disposed of by the appellate Court/High Court has been considered by this Court in various decisions. Order 41 Code of Civil Procedure deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the Judgment of the appellate Court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision, and
(d) where the decree appealed from is reversed or varied, the relief to which the Appellant is entitled.
4. The appellate Court has jurisdiction to reverse or affirm the trial court's findings. The first Appeal is a valuable right of the parties, and unless restricted by Law, the whole case is therein open for rehearing both on questions of fact and Law. The Judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons on all the issues arising along with the contentions put forth and pressed by the parties for the decision of the appellate Court. Sitting as a court of first Appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first Appeal is a valuable right, and the parties have a right to be heard on questions of Law and facts. The judgment in the first Appeal must address all the issues of law and fact and decide on them by giving reasons in support of the findings. (Vide Santosh Hazari v.
1MANU/SC/0946/2014 2 MANU/SC/0768/2010 6 Purushottam Tiwari (Deceased) By L.Rs. MANU/SC/0091/2001 and Madhukar and Ors. v. Sangram and Ors. MANU/SC/0302/2001 The Court of First Appeal has jurisdiction to reverse or affirm the findings of the trial Court. When the Court of First Appeal takes a different view, the Judgment of the first appellate Court must show the conscious application of mind and record its findings based on the evidence adduced by the parties. The judgment must record the reasons why the first appellate Court differs from the Judgment of the Trial Court.
14. Normally, appreciation of the evidence by the trial Court is only interfered with by the Appellate Court if such appreciation of evidence appears to be absurd or there has been a serious challenge to such exercise. This proposition of Law has been so firmly settled that it does not require any reiteration by citing any authority.
15. Given the settled legal position outlined above, I now re-appreciate the evidence on record, taking into account the evidence adduced by both parties, to assess the correctness of the findings recorded by the trial Court.
16. In order to fully appreciate on whom the burden of proof lies, it will be desirable to set out Sections 101, 102 and 103 of the Evidence Act, which reads as follows:
"S. 101 Burden of Proof-- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Section 102 On whom the burden of proof lies-- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
S. 103 Burden of proof as to particular fact---The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person."
17. In this context, the Hon'ble Apex Court in the Raghavamma case held that the burden of proof lies upon the persons to prove a fact, and it never shifts, but the onus of proof shifts. It has been held in Lakshmana Vs. 7 Venkateswarlu3, that initial burden of proving a prima facie case in his favour is cast on the Plaintiffs; when he gives such evidence as will support a prima facie case, the onus shifts to the Defendants to adduce rebutting the evidence to meet the case made out by the Plaintiffs. As the case continues to develop, the onus may shift back again to the Plaintiffs.
18. The initial onus of proof and the legal burden is on the Plaintiff to establish the truth, validity and binding nature of the suit agreement to sell. On behalf of the Plaintiff, she testified as PW.1, and on behalf of the Defendant, she appeared as DW.1. Both parties reiterated their respective pleadings in their chief examinations. The evidence adduced establishes that the Defendant is the rightful and absolute owner of the property in question, having purchased it from Kolagani Kondaiah through a registered sale deed dated 17.09.2005. The Plaintiff also examined her husband, N. Vijaya Rao, as PW.3. PW.2, K. Rama Koti, and the Defendant's husband, R. Ashok Kumar, who testified as DW.3, are shown to be acted as the attestors of Ex.A.1, agreement of sale. PW.2 supported the Plaintiff's case in all aspects. However, DW.2 (Ch. Satyanarayana) and DW.3 corroborated the Defendant's case.
19. PWs.1 to 3 testified that on 07.02.2014, defendant offered to sell the schedule property to Plaintiff for Rs.15,00,000/- in Bill Mattha. According to their evidence, PW.1 accepted the offer and paid the defendant Rs.3,75,000/- as earnest money. Upon receipt of the payment, the Defendant executed Ex.A.1, the agreement in favour of Plaintiff, with Gajji Ramesh acting as the scribe. In contrast, DWs.1 to 3 testified that DW.1 had borrowed Rs.3,75,000/- from Plaintiff without interest, intending to repay her bank debt. This transaction allegedly occurred in February 2014 in the presence of DW.2, Atluri Sreedhar, and P. Kanaka Raju. They further claimed that Plaintiff had obtained the Defendant's signature on blank stamped papers as collateral security, which Plaintiff and her husband then fabricated Ex.A.1. DW.2 3 AIR 1949 PC 278 8 corroborated this by stating that Sreedhar and Kanakaraju, who were teachers, were present during the money transaction. According to the defence, no actual contract of sale was ever formed between the Defendant and the Plaintiff.
20. As the trial Court rightly noted, PW.2 corroborated the Plaintiff's version of events, attesting to the authenticity of Ex.A.1 by signing it as a witness alongside DW.3. This lends weight to the Plaintiff's claim that the Defendant did indeed execute the agreement in question. On the other hand, the Defendant maintains that Plaintiff obtained her signature on blank stamped papers in connection with a financial transaction. In her cross-examination, DW.1 conceded that she had signed Ex.A.1. Even if Defendant's Explanation were to be accepted at face value, a critical point remains: Defendant herself acknowledges that her signature appears on Ex.A.1.
21. In view of the fact that Plaintiff had discharged the initial burden to prove the Ex.A.1 agreement, the onus shifted on the Defendant to controvert the genuineness of the agreement. Against this background fact, I do not find any illegality in the observation of the trial Court that the burden of proof was on the Defendant to prove the circumstances under which Ex.A.1 came to be executed. In light of the evidence of PWs.1 to 3, as detailed above, this Court finds that the Defendant has failed to provide satisfactory or reliable evidence to undermine the testimony of these witnesses regarding the execution of Ex.A.1 by the Defendant and the payment of the consideration. The Defendant has not contested the receipt of the consideration amount as outlined in Ex.A.1. The testimonies of PWs.1 to 3 remain consistent in their account of the Defendant's execution of the Ex.A.1 agreement upon receipt of the agreed consideration. Although PWs.1 to 3 were subjected to extensive cross-examination, nothing substantial was elicited that could discredit their evidence or suggest any inconsistencies. Moreover, PW.2, who is an attesting witness, has no apparent motive to provide false testimony that would harm the Defendant's interests. He stands to gain nothing by supporting the 9 Plaintiff's case unless there is a kernel of truth to the Plaintiff's claim. Therefore, the Defendant must demonstrate that she signed the document without understanding its contents or the nature of the transaction. No valid justification has been provided for lending such an amount to the Defendant without the stipulation of interest. Her failure to provide convincing evidence in this regard weakens her position and supports the Plaintiff's assertion of a valid agreement.
22. The trial Court has rightly noted the evidence provided by DW.2 during cross-examination, where he clearly expressed uncertainty regarding the Defendant's agreement to sell the house property to the Plaintiff on 07.02.2014, as well as the execution of the sale agreement and receipt of Rs.3,75,000/- as an advance on the same day. Furthermore, DW.2's evidence shows that the Defendant's husband is a teacher. DW.1's testimony further reveals that she is educated; she holds the position of Junior Manager at the Visakhapatnam Steel Plant in Jaggayapeta. Given the educational and professional backgrounds of the Defendant and her husband, it is highly improbable that they would have signed blank stamped papers without understanding the full implications. As DWs.1 and 3 are employed in stable positions, with access to their salary certificates, they could easily secure a loan of Rs.3,75,000/- from a financial institution such as a bank. Therefore, this Court finds it difficult to accept the Defendant's contention that they would willingly sign blank stamped papers for such a relatively small sum without comprehending the grave consequences of their actions. The evidence and surrounding circumstances do not lend credence to such a claim.
23. I have carefully and critically analyzed the evidence on record. The evidence on the side of Plaintiff is, by any standards, sufficient to prove the truth, validity, and binding nature of Ex.A.1's agreement of sale. This further reinforces the credibility and reliability of the Plaintiff's evidence and the validity of the Ex.A.1 agreement. Therefore, this Court remains unpersuaded 10 by the Defendant's defence and upholds the evidence presented by the Plaintiff.
24. As per the terms stipulated in the Ex.A.1 agreement, the Plaintiff is obligated to pay the outstanding balance of Rs.11,25,000/- to the Defendant on or before 07.05.2014, and in return, the Defendant is to execute a duly registered sale deed in favour of the Plaintiff at the Plaintiff's expense. Simultaneously, the Defendant is required to settle all outstanding liabilities, including taxes, electricity charges, and water charges. Before initiating the suit, Plaintiff issued a legal notice dated 04.04.2014 (Ex.A.2), expressing her intention to fulfill her contractual obligations. While the Defendant claims to have not received the notice, she subsequently sent the Plaintiff a caveat petition (Ex.A.3). However, a careful examination of Ex.A.2 demonstrates that the Plaintiff, well within the prescribed timeline, had expressed both her readiness and willingness to perform her part of the agreement.
25. The Defendant's counsel questions the Plaintiff's financial capacity to pay the balance sale consideration amount. However, the Defendant failed to elucidate why she agreed with the Plaintiff if she lacked financial capacity. It strains credulity to believe that the Defendant would willingly enter into the sale agreement without conducting due diligence. However, Plaintiff has explicitly stated in the plaint that she holds sufficient funds to fulfill her obligations under the sale agreement. She possesses fixed deposits bearing Nos.0333879 and 0333880, issued by Sapthagiri Grameena Bank, Jaggayyapet Branch, Jaggayyapet, in her name, totalling Rs.9,00,000/-, as well as another fixed deposit bearing No.0333882, amounting to Rs.4,50,000/- issued in the name of her husband.
26. In support of her case, the Plaintiff has produced documents Ex.X.1 to Ex.X.4 through her husband, PW.3. Ex.X.1 is a Fixed Deposit Receipt (F.D.R.) dated 14.11.2014, issued in the name of PW.3, for Rs.8,87,000/-. Ex.X.2 is a Fixed Deposit Receipt dated 12.12.2013, issued in the name of the Plaintiff, 11 for Rs.4,50,000/-. Ex.X.3 is a Fixed Deposit Receipt dated 12.02.2013, also issued in the name of the Plaintiff, for Rs.4,50,000/-. Lastly, Ex.X.4 is the Savings Bank (S.B.) account passbook issued by Sapthagiri Grameena Bank, Jaggayyapet Branch, in the name of PW.3.
27. The Appellant/Defendant's counsel argues that the trial Court incorrectly concluded that the documents Exs.X.1 to X.4 prove that Plaintiff's husband had sufficient funds to pay the outstanding Rs.11,25,000/- to the Defendant within the agreed timeline. The counsel contends that Ex. X.1, a Fixed Deposit Receipt dated 14.11.2014, does not demonstrate that the Plaintiff had the necessary funds to settle the balance by the stipulated date. Even if the amounts in Exs.X.2 and X.3, totalling Rs.9,00,000/-, are considered; they fall short of the required Rs.11,25,000/-, indicating an insufficiency of funds to meet the financial obligation. The Appellant/Defendant's counsel further argues that Plaintiff must prove the availability of funds or show that arrangements were made to obtain them. The learned counsel asserts that the Plaintiff failed to deposit the balance of the sale consideration within the specified time frame and it establishes that he is not ready and willing to perform his part of the contract.
28. In U.N. Krishnamurthy (since deceased) Thr. L.R.s. Vs. A.M.Krishnamurthy4, the Hon'ble Apex Court also held that:
There is a distinction between readiness and willingness to perform the contract; both ingredients are necessary to relieve Specific performance. In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar 5 Cited by Mr Venugopal, this Court said there was a difference between readiness and willingness to perform a contract. While readiness means the capacity of the Plaintiff to execute the agreement, which would include his financial position, willingness relates to the Plaintiff's conduct. This Court took the same view in Kalawati v. Rakesh Kumar.6.
In the said decision, it is further observed that:4
(2022) SCC Online 840 5 (1996) 4 SCC 526 6 (2018) 3 SCC 658 12
23. Section 16 (c) of the Specific Relief Act, 1963, bars the relief of specific performance of a contract in favour of a person who fails to aver and prove his readiness and willingness to perform his part of the contract. Given Explanation (i) to clause (c) of Section 16, it may not be essential for the Plaintiff to actually tender money to the defendant or to deposit money in Court, except when so directed by the Court, to prove readiness and willingness to perform the essential terms of a contract, which involves payment of money. However, Explanation (ii) says the Plaintiff must aver performance or readiness and willingness to perform the contract according to its true construction.
24. To aver and prove readiness and willingness to perform an obligation to pay money in terms of a contract, the Plaintiff would have to make specific statements in the plaint and adduce evidence to show the availability of funds to make payment in terms of the contract in time. In other words, the Plaintiff would have to plead that the Plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the Plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the Plaintiff would have to plead how the funds would be available to him specifically. To cite an example, Plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for the disbursement of adequate funds for timely compliance with the terms and conditions of a contract involving payment of money.
46. In this case, the respondent-plaintiff failed to discharge his duty to prove his readiness as well as willingness to perform his part of the contract by adducing cogent evidence. Acceptable evidence has not been placed on record to prove his readiness and willingness. Further, it is clear from the respondent-plaintiff's balance sheet that he did not have sufficient funds to discharge his part of the contract in March 2003. Making a subsequent deposit of balance consideration after the lapse of seven years would not establish the respondent-plaintiff's readiness to discharge his part of the contract. Reliance may be placed on Umabai v. Nilkanth Dhondiba Chavan [Umabai v. Nilkanth Dhondiba Chavan, (2005) 6 SCC 243] wherein this Court speaking through S.B. Sinha, J. held that deposit of amount in Court is not enough to arrive at the conclusion that Plaintiff was ready and willing to perform his part of the contract. Deposit in Court would not establish the Plaintiff's readiness and willingness within the meaning of Section 16(c) of the Specific Relief Act. The relevant part of the judgment is reproduced below (SCC p. 260, para 45).
1329. In P. Daivasigamani Vs. S.Sambandan 7 , the Hon'ble Apex Court referred to the case of Syed Dastagir v. T.R. Gopalakrishna Setty8, a three- judge Bench of the Apex Court observed that:
12. The ratio in Mademsetty Satyanarayana v. G. Yelloji Rao 9, it has been observed as follows:
"It is significant that this Explanation carves out a contract which involves payment of money as a separate class from Section 16(c). Explanation (i) uses the words "it is not essential for the plaintiff actually to tender to the defendant or to deposit in court any money except when so directed by the court". (emphasis supplied) This speaks in a negative term of what is not essential for the Plaintiff to do. This is more in support of the Plaintiff that he need not tender to the defendant or deposit in Court any money, but the Plaintiff must [as per Explanation (ii)] at least over his performance or readiness and willingness to perform his part of the contract".
18. In Sukhbir Singh v. Brij Pal Singh10 this Court had laid down that Law is not in doubt and it is not a condition that the respondents (Plaintiffs) should have ready cash with them. It is sufficient for the respondents to establish that they could pay the sale consideration. They don't need to always carry the money with them from the date of the suit till the date of the decree. The said principle was followed in the case of A. Kanthamani v. Nasreen Ahmed11, in case of C.S. Venkatesh v. A.S.C. Murthy 12 etc.
30. In Nathulal Vs. Phoolchand13, the Hon'ble Supreme Court observed that:
6.........To prove himself ready and willing, a purchaser does not necessarily have to produce the money or to vouch for a concluded scheme for financing the transaction: Bank of India Ltd. & Ors. v. Jamsetji A. H. Chinoy and Messrs. Chinoy and Company14.
31. Learned counsel for the Respondent relied on the decision in C.S. Venkatesh vs. A.S.C. Murthy (D) by L.R. and Ors.15, wherein the Hon'ble Supreme Court held that:
72022 S.C.C. OnLine SC 1391 8 (1999) 6 SCC 337 9 AIR 1965 SC 1405 10 (1997) 2 SCC 200 11 (2017) 4 SCC 654 12 (2020) 3 SCC 280 13 A.I.R. 1970 SC 546 14 AIR 1950 P.C. 90 at p.96 15 MANU/SC/0142/2020 14 Mere plea that he is ready to pay the consideration, without any material to substantiate this plea, cannot be accepted. The Plaintiff doesn't need to produce ready money, but it is mandatory on his part to prove that he has the means to generate the consideration amount. Except for the statement of PW-1, there is no evidence to show that Plaintiff has the means to make arrangements for payment of consideration under the reconveyance agreement.
32. In light of the above settled legal position, this Court views that mere non-deposit of the balance sale consideration amount cannot be a ground to hold that the Plaintiff is not ready and willing to perform her part of the contract. It is not the Appellant/Defendant case that, despite the direction of the trial Court or this Court, the Respondent/Plaintiff failed to deposit the amount. As already pointed out, Exs.X.2 and X.3 establish that Plaintiff had Rs.9,00,000/- with her much before the stipulated date and Ex.X.1 establishes that she could generate Rs.8,87,000/- within six months of the specified time.
33. The learned counsel for the Defendant asserts that the trial Court placed undue emphasis on the alleged admission made by the Defendant in the cross-examination. Defendant testified during cross-examination that on the date of Ex.A.1 agreement, she did sign the document and receive the money by the sale of the property and that it was not as a hand loan.
34. Learned counsel for the Appellant further relied on the decisions in Reliance General Insurance Company Limited vs. S. Sunitha and Ors.16, and M.Yadagiri Reddy V. V.C. Brahmanna and Ors. 17 , wherein the composite High Court of Andhra Pradesh held that:
9......................... The Law is fairly settled that evidence of a witness is to be read as a whole, and no stray sentence can be taken to say as any admission. To consider as admission, it must be clear from the entire reading of the evidence and not from pick and choose of any sentence alone without reading and understanding on what context the witness so deposed...................16
MANU/AP/0154/2016 17 MANU/AP/0891/2004 15
35. After a thorough and meticulous review of the deposition of DW.1, this Court is firmly disinclined to accept the submission made by the Defendant's counsel that the statement in question constitutes merely a stray sentence elicited during cross-examination. This Court finds that, given the professional stature of DW.1 as a Manager in a Steel Plant, there exists no reasonable possibility that the question posed by the counsel misled her. Moreover, it is essential to highlight that the Defendant has not contended, nor is there any evidence in the record to suggest, that the deposition of DW.1 was improperly recorded. If there were any legitimate concerns regarding the accuracy of the deposition, it was the Defendant's responsibility to raise such issues before the trial Court. However, no such objection appears to have been made, nor has there been any indication that the Defendant sought to address this matter with the trial Court. In the absence of any effort by the Defendant to challenge the deposition or to bring the matter to the trial Court's attention, this Court is compelled to treat the statement in question as a judicial admission. Judicial admissions, once made, carry significant weight and cannot be lightly disregarded.
36. Learned counsel for the Respondent relied on the decision of the Divisional Manager, United India Insurance Co. Ltd. and Ors. V. Samir Chandra Chaudhary18, the Hon'ble Supreme Court held that:
...................... Admission is the best piece of evidence against the persons making admission. As was observed by this Court in Avadh Kishore Das v. Ram Gopal and Ors.19 in the backdrop of Section 31 of the Indian Evidence Act, 1872 (in short, the 'Evidence Act'), it is true that evidentiary admissions are not conclusive proof of the facts admitted and may be explained or shown to be wrong, but they do raise estoppel and shift the burden of proof placing it on the person making the admission or his representative-in- interest. Unless shown or explained to be wrong, they are efficacious proof of the facts admitted. As observed by Phipson in his Law of Evidence (1953 Edition, Para 678), the weight of admission depends on the circumstances under which it was made; these circumstances may always be proved to impeach or enhance its credibility. The effect of admission is that it shifts the onus on the person admitting the fact on the principle that what a party 18 MANU/SC/0414/2005 19 AIR1979SC861 16 himself admits to be true may reasonably be presumed to be so, and until the presumption is rebutted, the fact admitted must be taken to be established.
37. Learned counsel for the Respondent relied on the decision in Avadh Kishore Das V. Ram Gopal and Ors.20, wherein the Hon'ble Supreme Court of India held that:
23. .................... It is true that evidentiary admissions are not conclusive proof of the facts admitted and may be explained or shown to be wrong. Still, they do raise estoppel and shift the burden of proof onto the person making them or his representative-in-interest. Unless shown or explained to be wrong, they are efficacious proof of the facts admitted. Here, the defendant, far from explaining the admission or declaration made by the deceased Mahant, under whom he (Defendant) claims, has affirmed that the entire property in suit is the absolute property of the God, Thakurji, as a juristic person. Therefore, it is too late for the defendant to wriggle out of the same. It cannot be said that defendant had inadvertently affirmed the correctness of the admission/declaration made in the will mentioned above by the deceased Mahant. ...............
38. Even in the absence of such admission in DW.1's cross-examination, this Court is unequivocally satisfied that Plaintiff has successfully established the execution of the sale agreement. This conclusion is substantiated by the testimony of one of the attesting witnesses, whose evidence lends significant credence to the Plaintiff's case. Furthermore, the Defendant has failed to provide a coherent or satisfactory explanation regarding the circumstances under which the agreement was signed. In the absence of any plausible explanation from the Defendant, the Court is compelled to draw an inference in favour of Plaintiff and treat this omission as a circumstance that further strengthens Plaintiff's stand.
39. The learned counsel for the Appellant asserts that the Plaintiff has failed to adhere to the mandatory provisions of the Specific Relief Act, particularly Section 16(c) of the Act. In this regard, he relied on the decision in P. 20 MANU/SC/0003/1978 17 Ravindranath and Another V. Sasikala and Others 21, wherein the Hon'ble Supreme Court held that:
22...............(i) Relief of specific performance of the contract is a discretionary relief. As such, while exercising power to grant specific performance of a contract, the courts need to be extra careful and cautious in dealing with the pleadings and the evidence, particularly led by the plaintiffs.
The plaintiffs have to stand on their own legs to establish that they have made a case for a grant of relief of specific performance of a contract. The Act of 1963 provides certain checks and balances which must be fulfilled and established by the plaintiffs before they can become entitled to such a relief. The pleadings in a suit for specific performance have to be very direct, specific and accurate. A suit for specific performance based on bald and vague pleadings must necessarily be rejected. Section 16(C) of the 1963 Act requires readiness and willingness to be pleaded and proved by the Plaintiff in a suit for specific performance of contract. The said provision has been widely interpreted and held to be mandatory.
X
(v) Even before filing a suit, there is no evidence forthcoming on behalf of the plaintiffs to show that they tendered the balance consideration or a draft sale deed to the defendants 1 to 5 and requested for execution and registration of the sale deed.
40. To consider the said submission, I have gone through the plaint averments. In the plaint, it is stated that Plaintiff has consistently demonstrated her readiness and willingness to perform her part of the sale agreement. Accordingly, she approached the Defendant, requesting that the remaining balance be accepted so that the Defendant may fulfill her obligations under the contract and execute a duly registered sale deed in Plaintiff's name.
41. In E.Anantha Padmanabha Reddy and another V. Chadalavada Srinivasa Rao22, the composite High Court of Andhra Pradesh held that:
28. Therefore, what is required to be seen by the Court is whether the requirements of Section 16(c) are satisfied or not. If these requirements are satisfied otherwise than by way of a parrot-like 21 2024 SCC OnLine SC 1749 22 2019 (2) A.L.D. 85 (D.B.) 18 repetition of the contents of Form Nos.47 and 48, then there can be no objection based on Form Nos.47 and 48.
42. Having regard to the facts and circumstances of the case and the conduct of the parties, I have no hesitation in holding that there was due compliance with section 16(c) r/w Explanation of the Specific Relief Act on the part of the Plaintiff and that it was the Appellant who had raised a contention regarding the forfeiture of the advance amount.
43. Learned counsel for the Appellant contends that the Plaintiff needs to establish that she is always willing and ready to perform her part of the contract. However, Plaintiff failed to pay the balance even according to the Ex.A.1 agreement.
44. In Chunduru Padmavati V. Chunduru Narasimha Rao 23 , the composite High Court of Andhra Pradesh at Hyderabad, held as under:-
"7. It is well settled that in the case of contracts relating to the sale of immovable property, generally, time is not regarded as the essence of the contract. It is, however, open to the parties to make time the essence of the contract by making express provisions on that behalf in the contract. It can also be inferred from the surrounding facts and circumstances of the case. Even though time was not made initially the essence of the contract, it can be made the essence of the contract by subsequent notice. In Chandi Rani v. Kamal Rani, a Constitution Bench of the Supreme Court held that even where time is not of the essence of the contract, the Plaintiff must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract, nature of the property and the object of making the contract. This principle was reiterated in the recent decision of the Supreme Court in K.S. Vidyanadam v. Vairavan, 1997 (2) Supreme 597, where the Apex Court, in keeping with the changing times, has made a bold departure from the traditional rule that time is not of the essence of the contract in the case of immovable properties in the following words:
"Indeed we are inclined to think that the rigour of the rule evolved by Courts that time is not of the essence of the contract in the case of immoveable properties evolved in times when prices and values were stable and inflation was unknown-requires to be relaxed if not modified, particularly in the case of urban immoveable properties. It is high time we do so."23
2000(1) ALT 613 19
45. Whether the Plaintiff was ready and willing to perform her part of the contract is required to be decided in light of the pleadings of the parties, evidence produced by her and her conduct. The thrust of the case set up by the Appellant/Defendant was that the Defendant neither executed the agreement nor received the advance amount. It is significant to note that the Defendant had set up the case of total denial. She pleaded that the agreement for sale (Ex.A.1) was a fabricated document and that Plaintiff had fabricated the same in connection with the business transactions between them. In this case, after taking into consideration the terms of the contract, the conduct of the parties and other material placed before the Court, this Court views that though Plaintiff is ready and willing to perform her part of the contract, the Defendant did not come forward in terms of the agreement, and questioned the genuineness of the Ex.A.1 agreement.
46. The Defendant's counsel further contended that the Plaintiff sought an alternative relief, specifically the refund of the advance amount, and that the Defendant was willing to return the same along with the interest. However, the trial Court did not consider the Defendant's submission by recording its reasons.
47. In P.C.Varghese v. Devaki Amma Balambika Devi and Others24, the Hon'ble Supreme Court held that an alternative plea of refund of the earnest amount and damage could not be a bar to claiming a decree for the specific performance of a contract.
48. After careful consideration, this Court finds no force in the said submission. Simply because the Plaintiff has claimed alternative relief, it cannot be held that the Plaintiff is not entitled to the primary relief of specific performance. The grant of alternative relief will arise if the Plaintiff's claim for specific performance is refused. When the Plaintiff asks for alternative relief, 24 AIR 2006 SUPREME COURT 145 20 there is no legal presumption or assumption that she gives up the primary relief of specific performance of the contract.
49. In the present case, the Appellant had neither pleaded hardship nor produced any evidence to show that it would be inequitable to order specific performance of the agreement. Instead, the important plea taken by the Appellant was that the agreement was fictitious and fabricated, and the Defendant had neither executed the same nor received the earnest money. As mentioned above, the trial Court found this plea to be wholly untenable. No evidence is placed before the Court to show the escalation in the price of the land. However, it cannot, by itself, be grounds for denying relief of specific performance.
50. Section 20(2) of the Specific Relief Act contains the cases in which the Court may properly exercise discretion not to decree specific performance. Three types of cases have been given under subsection (2) in the form of clauses (a), (b) & (c), in which the Court exercises its discretion not to decree specific performance; it is useful to extract the said clauses hereunder:
(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the Plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the Plaintiff or
(c) where the defendant entered into the contract under circumstances which, though not rendering the contract voidable, make it inequitable to enforce specific performance.
51. The instant case does not fall under any of these clauses. Usually, when the trial Court exercises its discretion in one way or another after appreciating the entire evidence and the materials on record, the Appellate Court should only interfere if it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The Appellate Court should also not exercise its discretion against the grant of specific 21 performance on extraneous considerations or sympathetic considerations. Nevertheless, once an agreement to sell is legal and validly proved and further requirements for getting such a decree are established, the Court has to exercise its discretion to grant relief for a specific performance.
52. Since the Defendant's case is one of denial, the Plaintiff's case that she is ready and willing to perform her part of the contract is sufficient to infer that the Plaintiff is ready and willing to perform her part of the contract. Therefore, the argument raised by the learned counsel for the Appellant that the Plaintiff has yet to provide evidence to prove her readiness and willingness to perform the contract is not tenable.
53. In Veeramareddy Nagabhushana Rao V. Jyothula Venkateswara Rao25, the Division Bench of the composite High Court of Andhra Pradesh held that:
20. Once the Defendant has failed to prove that the suit agreement of sale is fabricated, all other defences taken by him, such as readiness and willingness of the Plaintiff and there is no requirement of selling the suit schedule property, are all supplementary, based on which, equitable relief of decreeing the suit cannot be refused to the Plaintiff when it is otherwise legal and justified to do so.
Xxxxxxxxxxxxxxxxxxxxx
32.............. The Plaintiff cannot be denied the equitable relief and, more so, the ease of specific performance being discretionary, and the trial Court, having rightly exercised the said discretion based on the available material, is not liable to be interfered with in Appeal.
54. Moreover, it is the Defendant who had always been trying to wriggle out of the contract by disputing the execution of the agreement of sale. Now, the Defendant cannot take advantage of her wrong and then plead that a grant of decree of specific performance would be inequitable. It is not established by the Defendant that during the period between Ex.A1 and the date of filing of the suit, there was a rise in prices regarding immovable properties like the plaint schedule property, which made the Plaintiff avail of this opportunity.
252011 (1) ALT 600 (DB) 22 Escalation of prices cannot be grounds for denying the relief of specific performance.
55. When the Defendant failed to explain the circumstances which forced her to sign the Ex.A.1 agreement by placing cogent and convincing evidence, the judgment passed by the trial Court cannot be found to be fault. This Court views that once a party to a contract has repudiated the agreement, the other party doesn't need to tender the amount payable under the contract in the manner provided in the contract to claim its specific performance successfully. Once it was held that the Defendant committed a breach in avoiding to execute the agreement, whereas the Plaintiff performed her part of the agreement and was ready and willing to perform her part, the trial Court was justified in exercising its discretion in favour of the Plaintiff by passing a decree for specific performance of agreement against the Defendant.
56. Therefore, in all probabilities, the Defendant herself executed Ex.A.1 agreement of sale in favour of Plaintiff. Once it is accepted that the Ex.A.1 sale agreement is true and its contents are proved, it follows that the consideration has passed and that the case of the Plaintiff stands proved in all respects. Thus, on an overall consideration of the facts and evidence in juxtaposition, an inevitable and safe conclusion can be reached that the Plaintiff discharged the legal burden as well and, therefore, it can safely be held that the suit sale agreement is true, valid and binding and is supported by consideration. As seen from the facts on hand, it is not the case of Defendant that Plaintiff was not ready and willing to get the sale deed registered. It is also not her case that the Plaintiff was not in a position to arrange the required money to get the sale deed registered. Thus, the Plaintiff is entitled to equitable relief from specific performance.
57. In Veeramareddy Nagabhushana Rao V. Jyothula Venkateswara Rao (cited supra), the Division Bench of the composite High Court of Andhra Pradesh referred to the decision of Mysore State Road Transport 23 Corporation V. Mirja Khasim Ali Beg and Another26, wherein the Hon'ble Supreme Court was of the view that once discretion has been exercised by the lower Court in a given set of facts in favour of a party unless that discretion exercised is capricious, the appellate Court would not interfere since another possible result could have come in the suit, had the appellate Court decided the suit.
58. In Prakash Chandra V. Angadlal and Others 27, the Hon'ble Supreme Court observed that the ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. In the present case, the conduct of the Plaintiff has not been such as to disentitle her from the relief of specific performance.
59. The trial Court comprehensively analyzed the pleadings and the evidence of the parties. It held that Plaintiff has succeeded in proving the execution of the Ex.A.1 agreement by the Defendant. After reviewing all the evidence on record, this Court upholds the trial Court's findings that the Defendant executed Ex.A.1 agreement agreeing to the terms and conditions. Based on the facts and circumstances of the case, this Court views that Plaintiff is always ready and willing to perform her part of the contract and that defendant is evading her responsibility. There are no justifiable reasons to arrive at a different conclusion. The learned trial judge used his discretion to grant relief for the specific performance of the agreement, and the said discretion was based on the proper exercise of sound principles. The Defendant's conduct in resisting the execution of the sale deed is entirely incorrect.
60. In Nirmala Anand V. Advent Corporation Private Limited 28 , the Hon'ble Apex Court held that:
26AIR 1977 SC 747 27 AIR 1979 SC 1241 28 2002 0 AIR (SC) 3396 24
6) It is true that the grant of decree of specific performance lies at the discretion of the Court, and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the Court, in its discretion, can impose any reasonable condition, including payment of an additional amount by one party to the other while granting or refusing a decree of specific performance.
Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the Plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase in price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily, the Plaintiff cannot be allowed to have, for her alone, the entire benefit of a phenomenal increase in the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is who the defaulting party is. It is also to be borne in mind whether a party is trying to take undue advantage over the other as well as the hardship that may be caused to the defendant by directing the specific performance. There may be other circumstances in which parties may not have any control. The totality of the circumstances is required to be seen.
61. In light of the potential escalation in house property prices and adhering to the principles set forth in Nirmala Anand's case (as cited above), this Court deems it appropriate to award an additional sum of Rs.3,00,000/- to the Defendant in the interest of justice. It has come to the Court's attention that the Plaintiff deposited the balance sale consideration amount after the decree's passing. However, a certified copy of such a deposit has not been placed. As such, this Court directs that Plaintiff deposit interest within two months from the date of this judgment, at the rate of 18% per annum, on the outstanding balance of Rs.11,75,000/- from 07.05.2014 until the date of deposit. It goes without saying that in the event of the Plaintiff's failure to deposit the outstanding balance, the Plaintiff shall be required to pay the full balance amount along with interest at the rate of 18% per annum.
62. The trial Court's findings are accurate, and there is no need for interference except for the inclusion of interest on the balance sale consideration amount and the awarding additional amount. Having concluded 25 that the judgment of the trial court results from proper appreciation of evidence, I find no illegality or arbitrariness in the impugned judgment. This Court views that the findings arrived at by the trial Court are correct, and the Appellant/Defendant has shown no justifiable reasons for arriving at different conclusions except as indicated above. Accordingly, the points raised in the Appeal are answered.
63. As a result,
(a) The Appeal is partly allowed. The judgment and decree dated dt.27.10.2016 passed in O.S.No.19 of 2014 by the learned XVI Additional District and Sessions Judge, Nandigama, is hereby confirmed, granting the relief of specific performance with costs, and
(b) The judgment and decree dated 27.10.2016 passed in O.S.No.19 of 2014 is modified; the Plaintiff shall deposit interest at the rate of 18% per annum on the outstanding balance of Rs.11,75,000/- from 07.05.2014 until the date of deposit, within two months from the date of this judgment. In the event of the Plaintiff's failure to deposit the outstanding balance, the Plaintiff shall be required to pay the full balance amount along with interest at the rate of 18% per annum.
(c) The Plaintiff is further directed to deposit an additional amount of Rs.3,00,000/- (Rupees Three Lakhs Fifty Thousand Only) within two months from the date of judgment, in addition to the balance sale consideration amount;
(d) Upon such deposits, the defendant shall execute the sale deed in favour of the Plaintiff within one month. Failure to comply will lead to the Court executing the sale deed in favour of the Plaintiff for the plaint scheduled property.
26(e) After the execution of the sale deed, the Defendant is entitled to withdraw the amount deposited in the Court.
(f) In the facts and circumstances, the parties have to bear their costs in the Appeal.
Miscellaneous applications pending, if any, in this Appeal, shall stand closed.
_____________________________ JUSTICE T. MALLIKARJUNA RAO Date: 03.01.2025 MS / SAK 27 THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO APPEAL SUIT NO. 1117 OF 2016 Date: 03.01.2025 SAK