AS/896/1995 of Kolla Dalayya (Died) per LRs A- 2 to 6 Vs Raja Madhusudan on 30 December 2014

JUDGMENT:

The unsuccessful plaintiff in O.S.No.35 of 1987 on the file ofSubordinate Judge, at Sompeta (hereinafter referred to as ‘the trialCourt’) preferred this appeal against the decree and judgment dated06.04.1995 whereunder the suit filed by the plaintiff for specificperformance was dismissed. During pendency of the appeal, theplaintiff/appellant died and his legal representatives were brought onrecord as appellants 2 to 6 vide orders in ASMP No.503 of 2013 dated17.09.2014.

For convenience of reference, the ranks given to the parties inO.S.No.35 of 1987 will be adopted throughout this judgment.

2. The plaintiff (since died, per LRs) filed the suit for specificperformance of agreement of sale dated 02.07.1984 and alternativelyfor refund of Rs.42,820/- to the plaintiff, alleging that defendant Nos.2and 3 are the sons of defendant No.1. The plaint schedule property isthe joint family property of defendant Nos.1 to 3. Defendant No.2being the power of attorney holder for defendants 1 and 3 entered intoa sale transaction and executed documents agreeing to sell the jointfamily property of the defendants. The defendant No.3 was alsodealing with the joint family property and his dealings with the jointfamily property are being ratified by the defendants 1 and 2. Defendant No.2 agreed on behalf of the defendants 1 and 3 and on hisown behalf to sell the joint family land in S.No.366 and 367 ofRaghunadhapuram locality of Tekkali, locally known as ‘serilands’which are more fully described in the plaint, at the rate of Rs.10,000/-per acre and received Rs.6,500/- as advance for the benefit of jointfamily. It is further stated that the extent of land agreed to be sold, aftersurvey, excluded the land that is already sold. The land is private land of defendant No.1 who was Zamindar of Tekkali Zamin estate whichwas abolished and taken over by the State Government as per theprovisions of A.P. (Abolitions of Estates) Act, and it was also agreedthat the amount paid by the plaintiff towards advance, shall carryinterest at the rate of 2% per month till the date of execution of the saledeed in favour of the plaintiff.

Defendant No.3 executed an agreement of sale deed dated02.07.1984 at Tekkali in favour of the plaintiff in his own handwritingand got it attested by Pramod Kumar Deb and Lakshmi Kantha Patroincorporating the above terms. Pramod Kumar Deb is the nephew ofthe 1[st] defendant. Subsequently, the plaintiff paid Rs.6,500/- ondifferent occasions upto 15.05.1985 towards part of consideration andit consists of Rs.1,000/- paid by the 3[rd] defendant at Tekkali anddefendant No.2 paid the wife of the 1[st] defendant at Tarla villagethrough Pramod Kumar Deb and Rs.3,000/- paid on 15.05.1985 todefendant No.2. Thus a total sum of Rs.13,000/- was paid by theplaintiff towards part of sale consideration for the land agreed to besold under aforementioned agreement dated 02.07.1984, obtained areceipt from defendant No.2 for Rs.13,000/- acknowledging receipt oftotal amount of Rs.13,000/-.

On 24.07.1985, the plaintiff went to Berhampur and paidRs.5,000/- to the 1[st] defendant at his house in the presence ofdefendants 2 and 3 and Pramod Kumar Deb. Defendant No.2received Rs.7,000/- on 20.09.1985 from the plaintiff as part of price ofthe land agreed to be sold and passed receipt dated 20.05.1985 infavour of the plaintiff. The plaintiff again paid Rs.2,000/- to thedefendant in the presence of defendants 2 and 3 and his sister’s sonPramod Kumar Deb at Berhampur. The receipt dated 03.04.1986 waspassed by the 2[nd] defendant as he was the power of attorney holderfor defendants 1 and 2. Defendant No.2 referred the payment ofRs.2,000/- by the plaintiff towards land transaction mentioned above.

Later the 1[st] defendant wanted the land to be surveyed toascertain the extent of land agreed to be sold to the plaintiff afterexcluding the land already sold authorised Pramod Kumar Deb on14.04.1986 to get their lands covered by S.Nos.366 and 367 measuredwith the help of Taluk Surveyor and their Advocate K.V.Narasayya. The authorisation dated 14.04.1986 was executed on a stamp paper infavour of Pramod Kumar Deb. The same was given to the plaintiff bythe said Pramod Kumar Deb.

One Gaddenna of Tekkali conducted the survey in the presenceof K.V.Narasayya, Advocate. The plaintiff paid Rs.500/- to Gaddennaon 05.05.1986 towards survey charges, besides incurring otherexpenses. The plaintiff is entitled to claim reimbursement of Rs.500/-paid towards survey charges. The plaintiff paid Rs.2,000/- as advancesale price to the 1[st] defendant at the time of performance of ceremonyof Tilak.

The plaintiff has already performed his part of obligation of thecontract and was always ready and willing to perform his part of theobligation under agreement and also performed his part of obligationunder agreement of sale. Despite demands made by the plaintiff toreceive balance of sale consideration and execute registered saledeed, the defendants avoided to execute registered sale deed byreceiving the balance of sale consideration. The plaintiff, along withadvocate K.V.Narasayya, and Pramod Kumar Deb, went to Berhampurand requested the defendants to execute registered sale deed byreceiving balance of sale consideration, but the defendants did notcomply with the legitimate demand of the plaintiff. Having no otheralternative, the plaintiff got issued legal notice dated 22.05.1987 to thedefendants calling upon them to execute registered sale deed byreceiving balance of sale consideration within a week from the date ofnotice. Acknowledging receipt of notice, the defendants got issued areply dated 12.06.1987, belatedly, through their advocate denyingexecution of any agreement of sale and receipt of any amount towards advance of sale consideration, and denying their obligation to executeregistered sale deed by receiving the alleged balance of saleconsideration. Thus, the defendants refused to perform their part ofobligation under the agreement. Hence, the plaintiff filed the suit forspecific performance of agreement of sale and, in the alternative, forrefund of advance of sale consideration paid by the plaintiff on variousdates, at the rate of 24% per annum till the date of refund.

The 1[st] defendant filed written statement denying materialallegations made against the defendants inter alia contending that thedefendants never executed any agreement of sale in favour of theplaintiff for sale of the plaint schedule property. The 3[rd] defendant whois the junior-most member of the family has no right to transact withthird parties regarding sale of property and the 3[rd] defendant neverinformed the defendants about the alleged agreement of sale executedby him to sell the schedule property in favour of the plaintiff; and the 1[st]defendant is the Karta of the joint family and the 1[st] defendant is theonly competent person to execute any document for sale of theproperty. The 2[nd] defendant is the power of attorney holder ofdefendants 1 and 3 and the 2[nd] defendant never informed aboutpayment of Rs.6,500/- to 3[rd] defendant and passing of receipt;however which was lost therefore requested 2[nd] defendant to passreceipt for Rs.6,500/-. Accepting the request, 2[nd] defendant passedreceipt for Rs.13,000/- in favour of plaintiff dated 15.05.1985. Even atthe time of passing receipt dated 15.05.1985, no information was givento the 2[nd] defendant about agreement dated 02.07.1984 to sell theproperty. Thus, there is no agreement to sell the property and even ifthere is any agreement, it is not binding on the defendants. The 1[st]defendant did not receive any amount from the plaintiff or from theother defendants as advance of sale consideration called upon theplaintiff to prove the payment of Rs.5,000/- dated 24.07.1985 and the payment of Rs.7,000/- and Rs.2,000/- dated 20.09.1985 and03.04.1986 respectively, passing of receipt by 2[nd] defendant for thesaid amount.

The ancestors of the plaintiff were tenants of the lands ofdefendants and developed acquaintance with defendant No.1; anddefendant No.2 was taking money from the plaintiff as and whennecessity arose. There is no stipulation to pay interest on anyamounts paid by the plaintiff and in the absence of any specificstipulation for payment of interest, the plaintiff is not entitled to claiminterest on the alleged payments. The alleged agreement dated02.07.1984 is not valid and is not binding on the defendants. Thealleged agreement of sale is vague, ambiguous and uncertain inmaterial particulars, thereby it cannot be enforced even if it is foundtrue. At best, the plaintiff is entitled to recover the amount if anyadvanced by him to any of the defendants from the concerned personwho received the amount.

The defendant got the land surveyed by competent surveyorunder the supervision of K.V.Narasayya, advocate, in the suit forpartition and Pramod Kumar Deb who is the distant relation of thedefendant and the defendant only with a view to ascertain what exactlythe extent of land in S.Nos.366 and 367 so that he can sell the land ashe settled at Berhampur. The value of the schedule property is morethan Rs.30,000 to Rs.40,000/- per acre, but agreeing to sell theproperty at Rs.10,000/- per acre is unbelievable and thereby thedefendant would be put to hardship in case of decree andconsequently the plaintiff is not entitled to claim any relief from the 1[st]defendant and prayed to dismiss the suit.

Defendant Nos.2 and 3 filed Memorandum adopting the writtenstatement filed by the 1[st] defendant.

Basing on the above pleadings, the trial Court framed thefollowing issues:

(i) Whether the agreement to sell dt. 2-7-84 is true, validand binding on the defendants?and binding on the defendants?

(ii) Whether the plaintiff has only paid Rs.6,500/- to the 2[nd]defendant and obtained a receipt for Rs.13,000/-?defendant and obtained a receipt for Rs.13,000/-?

(iii) Whether the various payments said to have been madeby the plaintiff are correct?by the plaintiff are correct?

(iv) Whether the plaintiff is entitled to the relief of specificperformance of the agreement to sell dt. 2-7-84?performance of the agreement to sell dt. 2-7-84?

During the course of trial, on behalf of the plaintiff, PWs.1 to 3were examined, marked Exs.A1 to A12. On behalf of the defendants,the 1[st] defendant was examined as DW1, marked no documents.

Upon hearing argument of both the counsel, considering theoral and documentary evidence on record, the trial Court disbelievedthe agreement of sale while accepting the payment of Rs.22,000/-,granted the relief of refund of the amount while negating the primaryrelief of specific performance of agreement to sell.

The plaintiff being unsuccessful before the trial Court preferredthis appeal, challenging the decree and judgment of the trial Court onvarious grounds.

3. Learned counsel for the plaintiff mainly contended that theplaintiff paid a total amount of Rs.29,000/- but the trial Courtdisbelieved payment of Rs.5,000/- on 24.07.1985 and Rs.2,000/- on05.05.1986 at Berhampur. In fact, there was no cross examination ofPW1 denying payment of the said amounts of Rs.5,000/- andRs.2,000/- on two occasions. Hence, in the absence of denial, the trialCourt ought to have accepted that the plaintiff paid Rs.29,000/- in totalbut the trial Court erred in disbelieving the case of plaintiff, and grantedthe alternative relief of refund of Rs.22,000/- as against the claim ofRs.29,000/-, without any basis, and dismissed the suit for specificperformance on the ground that the plaintiff did not approach the Court with clean hands. Thus, the finding of the trial Court is erroneous andnot based on any material; finally prayed to allow the appeal bygranting the decree of specific performance, and setting aside thedecree and judgment of the trial Court.

Learned counsel further contended that the agreement to sellmay be either oral or in writing and when the terms of the agreementcan be made certain, a decree can be passed in favour of the plaintiffas the plaintiff already paid substantial amount of Rs.29,000/- towardsadvance of sale consideration and apart from that the land proposed tobe sold is to be ascertained only after survey. Merely because theextent of land, its boundaries and other details of property proposed tobe sold is not mentioned in the document, the relief of specificperformance cannot be denied.

4. Though sufficient time was granted to therespondents/defendants, there is neither representation on their behalfnor appearance to advance arguments. In the circumstances, havingno alternative, this Court closed the arguments of the defendants.

5. Considering the contentions of the plaintiff/appellants, perusingthe judgment and decree under challenge, oral and documentaryevidence, the following points arise for consideration:

i)Whether the defendants 1 to 3 agreed to sell the suit schedule property under agreement ofsale in favour of the plaintiff? If so, is Ex-A1agreement of sale enforceable under law?sale in favour of the plaintiff? If so, is Ex-A1agreement of sale enforceable under law?

ii)Whether the plaintiff paid Rs.5,000/- andRs.2,000/- on 24.07.1985 and on 05.05.1986,respectively, at Berhampur. If so, whether theplaintiff is entitled for the discretionary relief ofspecific performance of agreement of sale of theschedule property.Rs.2,000/- on 24.07.1985 and on 05.05.1986,respectively, at Berhampur. If so, whether theplaintiff is entitled for the discretionary relief ofspecific performance of agreement of sale of theschedule property.

iii)Whether the plaintiff was always ready andwilling to perform his part of the obligation underEx.A1 to obtain registered sale deed?willing to perform his part of the obligation underEx.A1 to obtain registered sale deed?

POINT No. (i):

6. The plaintiff’s specific contention is that the defendants 1 to 3,being members of joint family, agreed to sell the suit schedule propertyafter surveying the land and ascertaining the extent of land available,and the 3[rd] defendant (Lalit Kumar Deb) executed Ex.A1–agreement ofsale dated 02.07.1984, and the plaintiff paid Rs.6,500/- on the date ofexecution of Ex.A1 agreeing to sell the schedule property, but thedefendants denied the execution of agreement of sale whilecontending that the 3[rd] defendant is in the habit of receiving amountsas and when necessity arose as the plaintiff’s family is the tenant of thedefendants. Therefore, the amount received under Ex.A1 is as a loanonly and not as advance of sale consideration. They also deniedpayment of amount of Rs.5,000/- on 24.07.1985 and Rs.2,000/- on05.05.1986 at Berhampur. The 1[st] defendant in his written statement,at paragraph No.5, specifically contended that the alleged agreementof sale is vague, ambiguous and uncertain in material particulars andcannot be enforced even if it is found to be true.

According to the plaintiff, the suit document is Ex.A1 dated02.07.1984 and on the strength of Ex.A1, the plaintiff contended thatthe defendants agreed to sell the suit schedule property. At this stage,it is apposite to extract the body of Ex.A1 for better appreciation andthe same is extracted hereunder:

“Received Rs.6,500/- only (Six thousand five hundredonly) from Sri K. Dalaiah for joint family expenditure to bereturned with an interest of Rs.2% per month.

This amount will be adjusted at the time ofsettlement of seri land (the balance of land after survey). The balance of lands shall be sold to him at Rs.10,000per acre.

Witnesses

Lalit Kumar Deb

2.7.84

1. Promod Kumar Deb2.Lakshmi Kanta Patro”2.Lakshmi Kanta Patro”

A bare look at the recitals of Ex.A1, it is clear that Rs.6,500/-was received for joint family expenditure agreeing to repay the samewith interest at 2% per month. However, in the second paragraph, LalitKumar Deb agreed to adjust the amount at the time of settlement ofseri lands to K. Dalaiah at the rate of Rs.10,000/- per acre. But itcannot be construed as agreement to sell.

Section 54 of the Transfer of Property Act, defines the ‘Sale’and ‘Agreement to Sell’. Sale is transfer of ownership in exchange fora price paid or promised or part paid or part promised. Agreement toSell is a contract for sale of immovable property, and the sale of suchproperty shall take place on terms settled between the parties.

Here no terms are settled for execution of registered sale deedin future and no details of property was mentioned except ambiguousstatement of the 3[rd] defendant to adjust the amount at the time ofsettlement of seri lands and agreed to sell the property to Dalaiah atthe rate of Rs.10,000/- per acre. The property agreed to be sold isuncertain and the total sale consideration agreed to be received is alsouncertain. In fact, Ex.A1 does not disclose the intention of thedefendants to execute registered sale deed on a future date on theterms settled between the plaintiff and the defendants. An agreementof sale has to satisfy the requirement of contract under the IndianContract Act to enforce the terms of the agreement. According toSection 2(e) of the Indian Contract Act, agreement means everypromise and every set of promises forming the consideration; andcontract is an agreement enforceable by law.

According to Section 10 of the Indian Evidence Act, allagreements are contracts if they are made by free consent of theparties to the contract, for a lawful consideration and for a lawful objectand are not expressly declared to be void. Therefore, if an agreementis supported by consideration and is accepted by a person competentto accept it, agreement becomes contract. According to Section 29 of the Indian Contract Act, “agreement” the meaning of which is notcertain or not capable of being made certain, are void.

In the present case, as per Ex.A1, the terms of contract areuncertain, ambiguous and not capable of being made certain; andthereby the agreement Ex.A1 is void and the sale cannot be enforcedunder law.

An agreement may be uncertain either because of its terms areambiguous or vague or because it is incomplete. The general rule isthat if the terms of agreement are vague or so indefinite that it cannotbe ascertained with reasonable certainty, whatever be the intention ofparties, there is no agreement enforceable in law. Section 29 of theIndian Contract Act provides that meaning of agreement shall be clearon the face of it but effect can be given to the contract if its meaningcan be found with reasonable clarity. If that is not possible, thecontract cannot be enforced. Therefore, basing on the terms of Ex.A1,the Court has to decide whether the terms of agreement are certain orambiguous, and if the Court finds that the terms can be made certain, itcan be enforced.

An agreement to sell a house, if it did not contain sufficientdetails in the description or the plan as would enable in identifying thepart of the house being sold, cannot be enforced, in view of thejudgment of the Apex Court reported in VIMULESH KUMARIKULASRESHTA v. SAMBHAJI RAO[[1]], and as per the decision ofthe Madras High Court in P. PANNEERSELVAN VS A. BAYLIS

(DECEASED BY L.Rs)[[2]]. It is settled law that if the terms ofagreement are ambiguous or uncertain or not capable of makingcertain, the same cannot be enforced in a Court of law.

In the present case, the extent of land, details of property agreedto be sold, the total sale consideration agreed to be paid and the timefor payment etc., were not mentioned. On the other hand, the 3[rd]defendant received Rs.6,500/- from the plaintiff K. Dalaiah for joint

family expenditure agreeing to repay the same with interest at 2% permonth. It indicates that it is a loan transaction and not an agreement tosell the property. The latter part of Ex.A1 is of total uncertainty withoutdisclosing the requirements to consider the same as agreement to sellin view of the definition of agreement of sale under the Transfer ofProperty Act. Though the plaintiff contended that the property agreedto be sold by the defendants was to be ascertained after survey, andthereafter the balance of sale consideration is to be determined at therate of 10,000/- per acre and accordingly got the land surveyed in thepresence of Pramod Kumar Deb and K.V.Narasayya, advocate, but thecontention of the defendant is otherwise. However, there is nomaterial on record to show that after survey, the land agreed to be soldis ascertained, but the total extent described in the schedule is 4 acresin two lots. The first lot consisting of three items in S.No.366 andsecond lot consisting of three items in S.No.367 with boundaries toeach item of lot No.1 and lot No.2. How the extent is arrived at, andhow the boundaries are fixed is not known to anybody and surveyreport and the plan prepared are not placed on record to identify theproperty. Therefore, the schedule annexed to the plan is not based onany material and there is nothing to establish that the defendantsagreed to sell the suit schedule property to the plaintiff under Ex.A1;except that the 3[rd] defendant agreeing to adjust the amount ofRs.6,500/- at the time of settlement of seri land and agreeing to sell theland at Rs.10,000/- per acre to the plaintiff. Hence, the allegedagreement Ex.A1 is ambiguous, uncertain and not capable of beingmade certain. Therefore, Ex.A1 is void for uncertainty and the same isnot enforceable under law in view of Section 29 of the Indian ContractAct.

According to Section 9 of the Specific Relief Act, in a suit forspecific performance, a party to the suit can raise any defenceavailable to it under any law relating to Contracts. The enforceabilitydue to uncertainty is a part of law of contracts i.e. Section 29 of the Indian Contract Act. Therefore, the defendants are entitled to raise theplea of unenforceability of Ex.A1 due to uncertainty in the terms ofEx.A1 for sale of the schedule property. In view of my foregoingdiscussion, the agreement Ex.A1 is uncertain and not capable of beingmade certain. Consequently, Ex.A1 is void and unenforceable underlaw.

The main contention of the defendants is that the defendantsnever entered into any agreement of sale and the transaction coveredby Ex.A1 is only a money transaction. On the face of it, Ex.A1 is only aloan transaction. Ex.A2 is another receipt passed by 2[nd] defendant. The contents of Ex.A2 also disclose that the 2[nd] defendant receivedRs.6,500/- and through his brother Lalit Kumar Deb, he receivedRs.6,500/-; thus, in total he received Rs.13,000/-. The document issilent as to the purpose of receiving the said amount. There is nothingto indicate that the said amount was received as advance of saleconsideration. Similarly, Ex.A3 dated 20.09.1985 disclose that a sumof Rs.7,000/- from K. Dalaiah was received by the 2[nd] defendant;whereas Ex.A4 shows that 2[nd] defendant received Rs.2,000/- throughPramod Kumar Deb in connection with “land transaction matter”. Except in Ex.A1 and A4, there is no reference about the transaction ofsale of the land. Even in Ex.A4, a vague reference is made that the2[nd] defendant received Rs.2,000/- in connection with the landtransaction not even referred the agreement to sell or proposed sale. Similarly in Ex.A1, the 3[rd] defendant agreed to adjust the amounts atthe time of settlement of seri land and nothing indicating the intentionof parties to sell the property much less the schedule property. In theabsence of proof of intention of the defendants to sell the propertyunder the agreement, it is difficult for this Court to make the terms ofEx.A1 certain.

Prima facie, Ex.A1 is not an agreement for sale as definedunder Section 54 of the Transfer of Property Act, and not even an agreement to sell, since the defendants did not agree to execute aregistered sale deed on the basis of settled terms. The evidence ofPWs.1 to 3 is also silent with regard to the terms settled between theplaintiff and defendants for sale of the schedule property. In thecircumstances, Ex.A1 cannot be construed as agreement to sell oragreement for sale. Assuming for a moment, without conceding, thatEx.A1 is an agreement to sell, still it is unenforceable under lawbecause of its uncertainty and vagueness. Therefore, I hold that Ex.A1is not an agreement to sell as defined under Section 54 of the Transferof Property Act and it is not enforceable under law, in view of the barunder Section 29 of the Indian Contract Act. Accordingly, point No.1 isanswered in favour of the defendant and against the plaintiff.

POINT Nos. (ii) and (iii):

7. As both these points are interconnected, I find it expedient todecide by a common discussion.

According to the plaintiff, he paid Rs.5,000/- and Rs.2,000/- on24.07.1985 and on 05.05.1986, respectively, at Berhampur, to the 1[st]defendant. But the defendants denied receipt of the said amount ontwo occasions. The trial Court also disbelieved the payment ofRs.5,000/- and Rs.2,000/- on 24.07.1985 and on 05.05.1986,respectively, at Berhampur. The said finding is now challenged beforethis Court on the ground that no suggestion was put to PW1 denyingpayment of Rs.5,000/- and Rs.2,000/- on 24.07.1985 and on05.05.1986, respectively, at Berhampur, and it amounts to admissionof fact pleaded by the plaintiff and supported by the evidence of PW1,thereby the finding is liable to be reversed.

In view of the specific contention it is the duty of this Court toadvert to the allegations made in the plaint and in the written statementfiled by the 1[st] defendant so as to come to an independent conclusionuninfluenced by the findings of the trial Court.

As seen from the plaint, on 24.07.1985, the plaintiff went to Berhampur, paid Rs.5,000/- to the 1[st] defendant in the presence ofdefendant Nos.2 and 3. and Pramod Kumar Deb.

It is further contended at Page No.3 of the plaint that the plaintiffpaid Rs.2,000/- towards advance sale price to the 1[st] defendant whenhe attended Tilak ceremony on 05.05.1986. According to theallegations made in the plaint, no receipt was obtained by the plaintifffor the amount of Rs.5,000/- paid on 24.07.1985 and Rs.2,000/- paidon 05.05.1986. The defendant in his written statement denied receiptof those two payments specifically in paragraph No.3 of the writtenstatement, called upon the plaintiff to put the same to strict proof. Thus,the plaintiff affirmed the factum of payment of Rs.5,000/- and Rs.2,000/-on 24.07.1985 and 05.05.1986 and denied by the defendantsspecifically. In such case, the onus of proving the same is on theplaintiff to establish that he paid Rs.5,000/- on 24.07.1985 andRs.2,000/- on 05.05.1986 to the 1[st] defendant.

To substantiate his contention, the plaintiff himself was examinedas PW1. In his examination in chief, he did not state anything aboutpayment of Rs.5,000/- to the 1[st] defendant on 24.07.1985, but testifiedabout the payment of Rs.2,000/- in the month of May 1986 to the 1[st]defendant, but no receipt was passed for the said amount. At best, theexamination in chief of PW1 disclose about payment of Rs.2,000/- inthe month of May 1986, but silent about payment of Rs.5,000/- to the1[st] defendant at Berhampur in the presence of defendants Nos.1 and2, and Pramod Kumar Deb.

In the absence of specific evidence regarding payment ofRs.5,000/- to the 1[st] defendant, failure to suggest to the witness thatRs.5,000/- was not paid on 24.07.1985 is of no consequence. Therefore, failure to cross examine the witness regarding payment ofRs.5,000/- is not fatal to the case of defendants. The plaintiff wasrecalled and examined further on 02.02.1995 (sic 02.01.1995). In thefurther examination in chief, he testified that on 24.07.1985, PW1

himself and PW2 gave Rs.5,000/- to the 1[st] defendant and Rs.2,000/-on 15.05.1986 to the 1[st] defendant. In the cross examination, PW1admitted that no receipts for payment of Rs.5,000/- and Rs.2,000/-were passed. In the further cross examination, the counsel fordefendant could elicit that the payments covered by Exs.A2 weremade to the 2[nd] defendant in the presence of defendant Nos.1 and 3and requested the defendant to pass a receipt but the 1[st] defendantdirected the 2[nd] defendant to issue receipts. On 20.09.1995, a receiptmarked as Ex.A3 was obtained from the 2[nd] defendant. Similarly, areceipt marked as Ex.A2 was obtained on 15.05.1985. If really anyamount is paid to the 1[st] defendant, nothing prevented the plaintiff toobtain receipt for the same from the 3[rd] defendant since defendants 2and 3 are issuing receipts for the amounts received by others also. Therefore, failure to put a suggestion to PW1 that Rs.5,000/- andRs.2,000/- was not paid to the 1[st] defendant is inconsequential and onthe strength of the same, the case of the plaintiff that he paid Rs.5,000/-and Rs.2,000/- on 24.07.1985 and 05.05.1986 cannot be accepted.

PW2 is Pramod Kumar Deb, his evidence is totally silent withregard to the payment of Rs.5,000/- and Rs.2,000/- on two occasions. If really he was present at the time of alleged payment, he would havespoken about the payment of the said amounts. In the absence of anycorroborative evidence to the testimony of PW1 regarding payment ofRs.5,000/- and Rs.2,000/- on two occasions, it is difficult to believe thecase of plaintiff with regard to payment of the said amounts.

The 1[st] defendant was examined as DW1 and he is competent tospeak about those two payments because the plaintiff allegedly paidRs.5,000/- on 24.07.1985 and Rs.2,000/- on 05.05.1986 at Berhampurin the presence of Pramod Kumar Deb.

At the time of examination in chief, he asserted that heacknowledged receipt of Rs.13,000/- from the plaintiff under Ex.A2 andthe amount was received by him through his son and denied receipt of Rs.13,000/- from the plaintiff. Thus, the admission of DW1 inexamination in chief is suffice to establish payment of Rs.13,000/-only. Curiously in the cross examination, a suggestion was put toDW1 that the plaintiff paid Rs.5,000/- on 24.07.1985 and Rs.2,000/- on15.05.1986 personally at Berhampur and got denial of the same.

The tenor of cross examination of DW1 at best shows that theplaintiff paid Rs.5,000/- on 24.07.1985 and Rs.2,000/- on 05.05.1986,but could not establish those two payments by adducing any evidence.

On consideration of the total circumstances of the case includingthe facts elicited, the tenor of the cross examination of DW1, the trialCourt rightly concluded that the plaintiff miserably failed to establishthe payment of Rs.5,000/- on 24.07.1985 and Rs.2,000/- on05.05.1986. Even after re-appraisal of entire evidence, I find no iota ofevidence except ipsi dixit of PW1 and not supported by PW2 who ispresent at the time of alleged payments. Therefore, the statement ofPW1 is not corroborated by any evidence. In the absence of anycorroborative evidence, when the said payments are not supported byreceipts, on the strength of oral testimony of PW1 it is difficult for thisCourt to accept the said payments; more particularly when the 1[st]defendant denied receipt of those payments both in the writtenstatement and evidence. Therefore, I am of the considered view thatthe plaintiff miserably failed to establish those two payments.

To grant relief of specific performance, the plaintiff must not onlyplead but also prove his readiness and willingness, strictly adhering toSection 16(c) of the Specific Relief Act; and that he must approach theCourt with clean hands. In the present case, the plaintiff pleaded thathe paid total consideration of Rs.29,000/- on different occasions, butfailed to establish payment of Rs.5,000/- on 24.07.1985 and Rs.2,000/-on 05.05.1986 to the 1[st] defendant, such plea indicates that theplaintiff approached the Court with unclean hands thereby it is difficultto believe his readiness and willingness to perform his part of obligation under Ex.A1, even if Ex.A1 is accepted as agreement ofsale.

Relief of specific performance is purely discretionary in natureand such relief cannot be granted merely because it is lawful to do soand the Court must exercise such discretion judiciously and capable ofbeing corrected by Court of appeal. When the plaintiff approached theCourt claiming discretionary relief of specific performance making falseallegations of payment of Rs.5,000/- on 24.07.1985 and Rs.2,000/- on05.05.1986, the plaintiff is disentitled to claim such relief of specificperformance.

Before the trial Court, the defendants relied on two decisions ofthis Court reported in 1984 (2) ALJ 50 and AIR 1971 AP 270. In thesetwo decisions, this Court held that when the plaintiff pleaded paymentof certain amount but failed to prove the same, the plaintiff is notentitled to claim the discretionary relief of specific performance anddisbelieved readiness and willingness of the plaintiff to perform hispart of obligation.

In a recent judgment reported in MALLIKA SINGH(DECEASED BY L.RS.) V. OM PRAKASH (DECEASED BY L.RS.)

AND ANOTHER[[3]]His Lordship Satish Kumar Mittal held that, “When the plaintiff while claiming relief of specificperformance pleading certain payments, but the amountswere allegedly paid in connection with some othertransaction, but asking defendant to execute sale deed onreceipt of balance consideration after adjusting the amount,readiness and willingness of the plaintiff cannot be inferred,such conduct of the plaintiff would preclude him for gettingequitable relief of specific performance”.

In another decision reported in RAM KUMAR AGARWAL AND

ANOTHER v. THAWAR DAS (DEAD) (THROUGH L.RS.,)[[4]]Their Lordships Justice S. Rajendra Babu and Justice R.C. Lahoti held inpara 7 as follows:

“A person who falsely alleges to have paid Rupees 2,000/- and also attempts at proving the plea at the stage of the trial cannotbe said to have been ever ready and willing to pay Rupees7,000/- which under the contract it was his obligation to pay. Thepresent one is not a case where a plea as to payment was raisedbonafide but abandoned at or before the trial for inability to prove.”

The principle laid down in the above judgments is fairlyapplicable to the facts of the present case. Hence, the plaintiff isdisentitled to claim the relief of specific performance as he approachedthe Court with unclean hands as held by the Apex Court in LOURDUMARI DAVID AND ORS. VS. LOUIS CHINNAYA AROGIASWAMY

AND ORS.[[5]], wherein the Apex Court held as follows:

“It is settled law that the party who seeks to avail of theequitable jurisdiction of a Court and specific performance beingequitable relief, must come to the Court with clean hands. Inother words, the party who makes false allegations does notcome with clean hands and is not entitled to the equitablerelief…”

After discerning entire evidence available on record, and in viewof the law declared by the Apex Court and this Court, I find no groundto set aside the decree and judgment of the trial Court and to grant adecree in favour of the plaintiff as I find no legal infirmity in thejudgment of the trial Court. Hence, the plaintiff is disentitled to claimthe relief of specific performance.

Conclusion

In view of my foregoing discussion, I find that the plaintiffmiserably failed to establish his readiness and willingness to performhis part of obligation and also approached the Court with uncleanhands setting up a false plea of payment of Rs.5,000/- on 24.07.1985and Rs.2,000/- on 05.05.1986. Therefore, he is disentitled to claimrelief of specific performance and alternatively recovery of Rs.7,000/-along with interest as alternative relief.

Accordingly, point Nos. (ii) and (iii) are held in favour ofdefendants and against the plaintiff.

8. In view of the foregoing discussion, I find no illegality or infirmity in the impugned judgment.

9. Accordingly, the appeal is dismissed. No order as to costs.

Miscellaneous petitions, if any pending in this appeal, shall standclosed.

30[th] December, 2014

KSM

______________________________

M. SATYANARAYANA MURTHY, J

[1]AIR 2009 SC 806AIR 2009 SC 806

[2]AIR 2006 MAD 242AIR 2006 MAD 242

[3]AIR 2004, Punjab and Haryana at page 253AIR 2004, Punjab and Haryana at page 253

[4]AIR 1999 Supreme Court, 3248AIR 1999 Supreme Court, 3248

[5]AIR 1996 SC 2814AIR 1996 SC 2814