AS/813/1994 of Nalla Devalla Swamy, Vs Vathumilli Veerabhadra Rao, on 26 December 2006

JUDGMENT:-

The plaintiff in O.S.No.356 of 1988 on the file of the court ofPrincipal Subordinate Judge, Kakinada is the appellant herein.

The suit was filed for specific performance of contract of salealleging that the defendants are the owner of the suit schedule propertyand they entered into an agreement of sale on 22-11-1985 agreeing tosell the suit schedule property for a consideration of Rs.95,000/- andreceived a sum of Rs.50,000/-. The balance is to be paid at the time ofregistration. On 14-05-1988 the plaintiff paid a um of Rs.15,000/- and itwas endorsed on the agreement. In spite of repeated demands and legalnotice, the defendants have not executed the sale deed and the plaintiffwas ready and willing to perform the contract and, therefore, the suit wasfiled for specific performance or in the alternative for refund of Rs.65,000/-, which was paid under the agreement.

The defendants filed a written statement admitting the execution ofthe agreement of sale, but denying the readiness and willingness of theplaintiff to perform the contract. It was pleaded that the time forperformance is fixed for three (3) months and the plaintiff has committeddefault. The payment of Rs.15,000/- on 14-05-1988 and endorsement onthe agreement of sale are disputed and it is alleged to be a forged one.As the plaintiff failed to obtain the sale deed, the matter was taken to thepolice and in spite of interference by the police, the plaintiff has not paidthe amount. The plaintiff is residing in the suit premises as a tenant on arent of Rs.150/- even prior to the agreement of sale. The plaintiff was notpaying any amount. Therefore, the defendants pleaded for dismissal ofthe suit.

On the basis of the above pleadings, the following issues andadditional issue have been framed for trial:-1.Whether the payment endorsement dated 14-05- 1988 for Rs.15,000/- is true, valid and binding?

2. Whether the plaintiff is ready and willing to performhis part of contract?

3. Whether the plaintiff is entitled to specificperformance of an agreement of sale?

4. To what relief?

Additional issue:-

Whether the defendants are liable for rents and whether the plaintiffis entitled for a decree of specific performance?

On behalf of the plaintiff PWs.1 and 2 were examined and markedExs.A-1 to A-10. On behalf of the defendants DWs.1 to 3 were examinedand marked Exs.B-1 to B-12.

After considering the evidence on record, the court below did notaccept the payment endorsement of Rs.15,000/- under Ex.A-2 on 14-05-1988 and consequently passed a decree for refund of the considerationof Rs.50,000/- and for adjustment of the rent of Rs.150/- per monthpayable by the plaintiff as a tenant. Aggrieved by the said judgment, thepresent Appeal is filed.

Now the points that arise for consideration are:-

1. Whether the plaintiff is entitled for specific performance of thecontract of sale?contract of sale?

2. Whether the plaintiff is not liable to pay the rents?

3. Whether the plaintiff was always ready and willing to performthe part of the contract?the part of the contract?

4. Whether there are any sufficient grounds to interfere with thejudgment and decree of the lower court?judgment and decree of the lower court?

POINTS:-

There is no dispute about the execution of agreement of sale Ex.A-1dated 22-11-1985. Though the defendants have contended that time isessence of the contract and three months time was fixed, it was notmentioned in Ex.A-1. But, at the same time, the parties by subsequentconduct also can fix the time as being essence of the contract. Apart fromit, even if time is not the essence of the contract, it is for the plaintiff to

plead and prove readiness and willingness to perform the part of thecontract. According to the case of the plaintiff, out of Rs.50,000/- paid thedebts under Exs.A-4 and A-6 were discharged and cash consideration ofRs.20,000/- was paid. Evidently, the property was sold by the defendantsfor discharge of the debts. Therefore, any reasonable prudent man will beanxious to get the sale deed executed at the earliest point of time. From22-11-1985 till 14-05-1988 when the alleged part payment is said to havebeen made, there is nothing on record to show that the plaintiff hasoffered to pay the balance consideration and expressed readiness andwillingness. On the other hand, whether it is true or not, the defendantsclaim that they were ready and the matter was also taken to the police. Itis for the plaintiff to prove his readiness and willingness to get theequitable relief. The conduct of the plaintiff has to be taken intoconsideration whether there was readiness and willingness. It is anadmitted fact under Ex.A-10 a registered sale agreement was executedon 01-07-1986 by the defendants in favour of one Malireddy Appa Raoand the plaintiff is aware of the same and he filed the agreement.Therefore, when the agreement in his favour is subsisting and whenanother alienation has taken place on 01-07-1986, any prudent manwould have questioned the defendants and also Appa Rao, but theplaintiff did not choose to question the same. It was sought to becontended that this agreement has been cancelled by virtue of thepayment of Rs.15,000/- by the plaintiff and a sum of Rs.5,000/- by thedefendants and consequently the agreement is not enforceable. All thesefacts are not pleaded in the plaint or in the legal notice prior to the filing ofthe suit. At the time of arguments, it was sought to be canvassed that thepayment, to a tune of Rs.15,000/-, was given towards the discharge of theliability to Appa Rao under Ex.A-2, which does not fit in with the claim inthe plaint. If really the plaintiff was bona fide and the paymentendorsement and payment of cash of Rs.15,000/- under Ex.A-2 is true,then he should have been definitely pleaded that the said amount waspaid for discharge of a Ex.A-10 agreement. For the reasons best knownto the plaintiff the said Appa Rao was not examined. It is contended by the counsel for the appellant that the defendants admitted that the amounttaken under Ex.A-10 was discharged from the money borrowed from theplaintiff. Evidently, this cannot be related to Ex.A-10 and it was not evensuggested to him that this amount was paid in discharge of Ex.A-10contract amount. Further more, even as per the claim of the plaintiff,under Ex.A-1 cash of Rs.20,000/- was paid and, therefore, the dischargeof the amount from the own money of the defendants cannot be doubted.Therefore, from the conduct of the plaintiff the endorsement of paymentunder Ex.A-2 is surrounded by suspicious circumstances leaving apartthe fact whether there is variation in the signature or thumb marks asnoticed by the lower court. The plaintiff was having knowledge of Ex.A-10and kept quite for a ling time and has come with a false plea andconsequently the relief of specific performance cannot be granted. Thereis no material evidence of readiness and willingness to perform thecontract at all times.

Conclusion

The learned counsel for the appellant contends that during thependency of this appeal, as the property was attached by virtue of theorders of this court, the amount was deposited in the executing court inanother suit and it also shows the bona fides of the plaintiff. When onceEx.A-2 endorsement is found to be a not true one, then the relief ofspecific performance cannot be granted. If the appellant has made anypayment towards satisfaction of the E.P.No.49 of 1993 in S.C.No.141 of1990 on the file of the court of IV Additional Senior Civil Judge,Kakinada, he can recover the same from the defendants. Evidently, theplaintiff is residing in the suit schedule property and the rents which issaid to be Rs.150/- per month cannot be said to be unreasonable.Therefore, the lower court has given several reasons for rejecting theclaim of the plaintiff for specific performance and the relief beingequitable and the discretion exercised by the court below cannot befound to be arbitrary. Therefore, I do not find any reasons to interfere withthe judgment of the court below and appeal is liable to be dismissed.

Accordingly, the Appeal Suit is dismissed. No costs.

16-11-2012TSNR

_______________________N.R.L.NĀGESWARA RĀO,J