BEEMANENI MAHA LAKSHMI versus GANGUMALLA APPA RAO (SINCE DEAD) BY LRS. on 9 May 2019

SUPREME COURT REPORTS

[2019] 7 S.C.R.

ABEEMANENI MAHA LAKSHMI

v.

GANGUMALLA APPA RAO (SINCE DEAD) BY LRS.

(Civil Appeal Nos. 4537-4538 of 2017)

BMAY 09, 2019

[L. NAGESWARA RAO AND M. R. SHAH, JJ.]

Specific performance: Agreement to sell – Execution of, byappellant-vendor in favour of respondent-vendee for a saleconsideration – Payment of part consideration by the respondentCand remaining amount was to be paid within three months – Appellantagreed to execute the sale deed after measuring the suit land –However, respondent did not supply the original sale deed as alsothe order of the tribunal that appellant is holding an excess land –Suit by respondent for decree for specific performance of theDagreement to sell and in the alternative refund of advance of saleconsideration with interest – Suit decreed by the trial court directingthe appellant to execute a sale deed in favour of the respondent –Decree upheld by the High Court – On appeal, held: Courts belowrightly held that it was the appellant who did not perform her partof the contract – Failure on the part of the respondent to demonstrateEthat he was having sufficient money with him to pay the balancesale consideration under the agreement by the date of his evidencenot much of consequence – Even otherwise the respondent depositedthe entire balance sale consideration as directed by the trial court– It cannot be said that the respondent was not ready and willing toFperform his part of the contract – It is to be considered that as andwhen respondent was called upon to make the deposit, he depositedthe amount to show his bonafides or not – Furthermore, appellantcannot be permitted to raise plea on hardship – Thus, the decreefor specific performance of the agreement to sell by the courts below,upheld.G

Dismissing the appeals, the Court

HELD: 1.1 On facts, till the land was measured and thefinal amount was arrived at, there was no obligation on the part ofthe vendee-plaintiff to deposit/pay the balance sale consideration.

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BEEMANENI MAHA LAKSHMI v. GANGUMALLA APPA RAO(SINCE DEAD) BY LRS.

Conclusion

It is required to be considered along with the fact that allthroughout the vendee was insisting that the original sale deedin favour of the vendor be given to the vendee and that the finalcertificate issued by the tribunal be shown and given to thevendee. It is an admitted position that copy of the sale deed wasnot given to the vendee. However, it was the case on behalf ofthe defendant-vendor that the plaintiff was informed that theoriginal sale deed is produced in the court in the proceedingsinitiated by the YS predecessor-in-title and therefore, the vendeemay get the copy from that court. Nothing is on record on whichdate the vendor delivered to the vendee the land ceiling papers.The land in question was subjected to the land ceiling proceedings.The vendor-defendant purchased the suit property by sale deeddated 6.10.1971 from YS the husband of the sister of the vendor.From the evidence, it appears that YS was also claiming theownership over the land in question. Dispute was that YS executedthe sale deed in favour of the defendant-vendor with a view tosee that the land is not declared as excess land under the LandCeiling Act. It has come on record that the tribunal held in favourof the vendor and the transaction in her favour was found to bebonafide. However, the said YS was also continued to claim theownership which was not accepted by the land Tribunal. That iswhy, the vendee- plaintiff was insisting to deliver the land ceilingpapers. The conduct on the part of the plaintiff-vendee to insistfor the original sale deed in favour of the vendor and the deliveryof the land ceiling papers was natural. Any prudent person whowas to purchase the property would definitely insist for the titlepapers, so as to be satisfied that the title is clear. Before the trialcourt, the defendant did not produce any final order/certificateissued by the land tribunal, which came to be produced for thefirst time before the High Court along with the application foradditional evidence under Order 41 Rule 27 CPC. The HighCourt permitted the appellant to produce the proceedings of thetribunal. The same came to be considered by the High Court.That on appreciation of evidence and considering the documentEx. B1-copy of a certified copy of the order of the Land ReformsTribunal, the High Court has specifically observed that it cannotpositively be said that the original of Ex. B1 was available withthe vendor by the date of Ex. A1. Therefore, the High Court

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Aobserved that the contention of the appellant that the respondentwas shown the document relating to land ceiling clearance at thetime of Ex. A1 cannot be believed or accepted. The said is thefinding recorded on appreciation of evidence. Therefore, the trialcourt and the High Court specifically observed and held that thebuyer insisted on the seller producing all the documentsBnecessary for making out a complete chain of his/her title.[Para 10] [502-C-H; 503-A-E]

1.2 On conjoint reading of Ex. A1 and the reply to the noticeby the defendant dated 14.04.1987 and the cross-examination ofthe defendant-vendor, both the trial court and the High CourtCrightly observed and held that it was the appellant-vendor thatdid not perform her part of the contract. Once, the finding isrecorded that it was the appellant- vendor that did not performher part of the contract, thereafter as rightly observed by theHigh Court, the failure on the part of the vendee to “demonstrate”Dthat he was having sufficient money with him to pay the balancesale consideration under Ex. A1 by the date of his evidence isnot much of consequence and the contention of the appellant-vendor that the respondent- vendee was not ready and willing toperform his part of the contract cannot be believed or accepted.The said finding was confirmed by the High Court. EvenEotherwise, it is required to be noted that the plaintiff depositedthe entire balance sale consideration as directed by the trial courtwithin the extended period of time. As it was submitted on behalfof the defendant before the trial court that the plaintiff does nothave any capacity to pay the balance sale consideration, to testFhis bonafides the trial court directed the plaintiff to deposit thebalance sale consideration which the plaintiff did deposit. Merelybecause the said amount was deposited out of the fund/amountreceived by him by selling the property in the year 1993, by thatitself cannot be presumed and/or inferred that at the time of execution of the agreement to sell and/or thereafter even at theGtime of the notice, the plaintiff was not having sufficient fund topay the balance sale consideration. An agreement to sell is dated30.12.1985 and the plaintiff was directed to deposit the amountin the year 1993. It is not expected from the plaintiff that he wouldcontinue to deposit the same with the bank all these years. WhatH

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is required to be considered is as and when he is called upon tomake the deposit, he has deposited the amount to show hisbonafides or not? [Para 10] [503-F-H; 504-A-D]

1.3 The plea raised on behalf of the defendant-vendor onhardship to be caused if the decree of specific performance ofthe contract is passed against the vendor cannot be permitted tobe raised now, when no such plea was raised in the writtenstatement. [Para 11] [504-E-G]

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A. Maria Angelena v. A.G. Balkis Bee AIR 2002 SC

2385 – relied on.

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1.4 The judgment and decree passed by the trial court forspecific performance of the agreement to sell confirmed by theHigh Court is upheld. [Para 13]

K.S. Vidyanadam v. Vairavan (1997) 3 SCC 1 : [1997]1 SCR 993 ; P.R.Deb and Associates v. Sunanda Roy(1996) 4 SCC 423 : [1996] 3 SCR 163 ; Padmakumari D

v. Dasayyan (2015) 8 SCC 695 : [2015] 5 SCR 56

– distinguished.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4537-4538 of 2017.

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From the Judgment and Order dated 06.08.2007 of the HighCourt of Judicature of Andhra Pradesh at Hyderabad in Appeal Suit No.2638 of 1993 & CMP No. 7692 of 2003.

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Basant R. Sr. Adv., G.V.R. Choudary, K. Shivraj Choudhuri, A.Chandra Sekhar, Ms. Ayushi Goel, Harsh Singhal, Ms. Akshara Naidu,Vishnu Pazhanganat, Hitesh Kumar Sharma, Advs. for the Appellant.

Pramod Swarup, Sr. Adv., Mrs. Anjani Aiyagari, Ram Lal Roy,K. Ram Kumar, Advs. for the Respondents.

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AThe Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Judicature Andhra Pradesh atHyderabad dated 6.8.2007 in Appeal Suit No. 2638 of 1993 and CMPBNo. 7692 of 2003, by which the High Court has dismissed the said appealpreferred by the appellant herein – the original defendant and hasconfirmed the judgment and decree of specific performance passed bythe learned trial Court, the original defendant has preferred the presentappeals.

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2. The facts leading to the present appeals in nutshell are as under:

That the appellant herein – the original defendant purchased thesuit schedule property admeasuring 17 acres 39 cents situated at villageBillawaka, Thimmapuram Post, Kakinada Taluk, East Godavari District,Andhra Pradesh by a registered sale deed dated 6.10.1971. The land inDquestion was subjected to the provisions of the Andhra Pradesh LandReforms (Ceiling on Agricultural Holdings) Act, 1973, which came intoforce in the year 1975. That vide order dated 20.11.1976, the LandReforms Tribunal held that the appellant is holding an excess land to theextent of 0.0013 cents. It appears that a revision application was pending/Eproceedings before the High Court at the instance of the predecessor intitle of the suit property. That the appellant herein executed an agreementto sell in favour of the respondent herein – the original plaintiff videagreement to sell dated 30.12.1985 and agreed to sell the said property(suit property) for a sale consideration of Rs.2,45,000/-. The respondentherein – the original plaintiff – purchaser paid the part sale considerationFof Rs.55,000/-. The remaining balance amount was required to be paidwithin three months. According to the plaintiff, it was also agreed thatthe appellant has to execute the sale deed after measuring the suit landfor arriving at the actual sale consideration payable. According to theplaintiff, time and again, he demanded the original sale deed in favour ofGthe appellant dated 6.10.1971 as well as the final order passed by theTribunal/final certificate issued by the Agricultural Land Tribunal andalso requested the vendor to measure the land and execute the saledeed. However, as the vendor – the appellant did not execute the saledeed, though according to the plaintiff he was ready and willing to paythe balance sale consideration and perform his part of contract, nothingHfurther was done and therefore the purchaser – the plaintiff served a legal notice upon the appellant dated 6.4.1987. The said notice wasreplied by the defendant vide reply dated 14.4.1987. That thereafter therespondent herein – the original plaintiff instituted Original Suit No.16/1993 in the Court of the Subordinate Judge, Pithapuram praying for adecree for specific performance of the agreement to sell dated 30.12.1985by directing the defendant to execute the sale deed in favour of theplaintiff by producing the original title deed and non-surplus order in theland ceiling case of the defendant and her vendor. In the alternative, itwas prayed to pass a decree for a sum of Rs.75,169.75 with interestfrom 30.12.1985 on Rs.55,000/-.

2.1 The suit was resisted by the defendant by filing a writtenstatement. It was the case on behalf of the defendant that the plaintiffwas not ready and willing to perform his part of contract as he was nothaving balance of sale consideration and therefore, he could not pay theamount and obtain the sale deed. It was also the case on behalf of thedefendant that she purchased the land in question from one Y. SomayyaChoudary and the land thereafter held in favour of the defendant andthe Land Tribunal held that the said transaction between the defendantand the Y. Somayya Choudary was a bona fide transaction. Accordingto the defendant, the same had attained finality. It was the case onbehalf of the defendant that the plaintiff was aware of the aforesaidtransaction and even the order passed by the Land Tribunal. It was alsothe case on behalf of the defendant that before entering into the agreementitself, in the beginning, the defendant informed the plaintiff that the saledeed is filed in the land ceiling proceedings of Y. Somayya Choudaryand after termination of the proceedings the document will be obtainedand delivered to the plaintiff. It was also the case on behalf of thedefendant that the copies of the land ceiling orders were handed over tothe plaintiff and having satisfied the plaintiff entered into the agreementto sell.

2.2 On the basis of the pleadings of the parties, the learned TrialCourt framed the following issues:

(1) Whether the plaintiff is ready and willing to perform his partof the contract and is entitled to seek for specific performance ofthe suit agreement of sale?

(2) Whether the plaintiff is entitled for the alternative relief ofrefund of advance of sale consideration with interest as claimed?

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A(3) To what relief?

2.3 The plaintiff examined himself as PW1 and marked ExhibitsA1 to A4. The defendant examined 5 witnesses including herself asDW1 and marked Exhibit X1 through DW3. It appears that during thecourse of trial, as it was the case on behalf of the defendant that theBplaintiff had no money to pay the balance sale consideration and thereforethe learned trial Court directed the plaintiff to deposit the balance of thesale consideration into the Court to verify his bona fides. That the plaintiffdeposited the balance sale consideration within the extended time grantedto him on a petition.C3. That thereafter on appreciation of evidence and considering

C3. That thereafter on appreciation of evidence and consideringthe entire material on record including the deposition of DW1 and evenreply to the notice by DW1, the learned trial Court decreed the suit bydirecting the defendant to execute a sale deed in favour of the plaintiff.While decreeing the suit, the learned trial Court specifically observedand held that it was the defendant who committed the breach of contract.DOn appreciation of evidence, the learned trial Court also found that theplaintiff was always ready and willing to perform his part of the contractand it was the defendant who committed the breach of contract andtherefore the plaintiff is entitled for the relief of specific performance.

4. Feeling aggrieved and dissatisfied with the judgment and decreeEpassed by the learned trial Court, the defendant preferred appeal beforethe High Court. The defendant – the appellant herein also filed anapplication for additional evidence under Order 41 Rule 27 of the CPC.That the High Court allowed the said application for additional evidencepartly. That thereafter on appreciation/re-appreciation of the entireFevidence on record, by the impugned judgment and order, the High Courthas dismissed the appeal preferred by the appellant herein – the originaldefendant and has confirmed the judgment and decree of specificperformance of the agreement to sell dated 30.12.1985 passed by thelearned trial Court.G5. Challenging the impugned judgment and order passed by theHigh Court in dismissing the appeal and confirming the judgment anddecree of specific performance passed by the learned trial Court and inpartly rejecting the application for additional evidence under Order 41Rule 27 of the CPC, the original defendant – the appellant before theHigh Court has preferred the present appeals.H

6. Shri Basant R, learned Senior Advocate has appeared on behalfof the appellant – the original defendant and Shri Pramod Swarup, learnedSenior Advocate has appeared on behalf of the respondent – the originalplaintiff (since dead and now represented by his legal heirs).

6.1 Shri Basant R, learned Senior Advocate appearing on behalfof the appellant has vehemently submitted that in the facts andcircumstances of the case, both the courts below have materially erredin decreeing the suit and passing the decree of specific performance ofthe agreement to sell dated 30.12.1985.

6.2 It is further submitted by the learned Senior Advocate appearingon behalf of the appellant that both the courts below have materiallyerred in holding that it was the defendant who committed the breach ofthe terms of the contract/agreement to sell.

6.3 It is further submitted by the learned Senior Advocate appearingon behalf of the appellant that it was the case on behalf of the defendantfrom the very beginning that the plaintiff had no capacity to pay thebalance sale consideration. It is submitted that even the plaintiff couldnot deposit the balance sale consideration at the first instance as directedby the learned trial Court by which the learned trial Court directed theplaintiff to deposit the balance sale consideration to show his bonafides.It is submitted that in fact the plaintiff could deposit the balance saleconsideration within the extended period of time out of the amount receivedfrom the property sold by him in the year 1993. It is submitted thattherefore when the plaintiff was not having sufficient fund to pay thebalance sale consideration, both the courts below have materially erredin passing the decree of specific performance of the agreement to selldated 30.12.1985. It is submitted that as such the plaintiff in the cross-examination has specifically admitted that he paid the balance saleconsideration as directed by the learned trial Court from the amountreceived by him on sale of the property in the year 1993.

6.4 It is further submitted by the learned Senior Advocate appearingon behalf of the appellant that in the agreement to sell there was nocondition that the sale deed to be executed only after the property ismeasured. It is vehemently submitted by the learned Senior Advocateappearing on behalf of the appellant that both the courts below havematerially erred in giving much importance to the admission of defendantno.1 who is an illiterate widow that before execution of the sale deedthe land was to be measured.

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A6.5 It is further submitted by the learned Senior Advocate appearingon behalf of the appellant that both the courts below have materiallyerred in not appreciating the fact that prior to the entering into theagreement of sale, the plaintiff was aware of the defendant havingpurchased the property from Y. Somayya Choudary and also was awareof the land ceiling proceedings. It is submitted that even before enteringBinto the agreement itself in the beginning the defendant informed theplaintiff that the sale deed is filed in the land ceiling proceedings of Y.Somayya Choudary and after termination of the proceedings thedocument will be obtained and delivered to the plaintiff. It is submittedthat in the reply to the notice by the defendant, the plaintiff was specificallyCinformed/told that the sale deed is in the court file of the land ceilingproceedings of Y. Somayya Choudary and the plaintiff can obtain a copyof the same from the concerned court. It is submitted that thereforeboth the courts below have materially erred in holding that it was thedefendant who committed the breach of the terms of the contract/agreement to sell. It is further submitted that both the courts below haveDmaterially erred in holding that the plaintiff was always ready and willingto perform his part of the contract/agreement to sell.

6.6 It is further submitted by the learned Senior Advocate appearingon behalf of the appellant that even otherwise decree for specificperformance of a contract is a discretionary relief and in the facts andEcircumstances of the case, more particularly when the plaintiff did notcome with clean hands, as though was not in possession but stated thathe is in possession, both the courts below ought not to have granted thediscretionary relief and ought not to have passed a decree for specificperformance of the agreement/agreement to sell. In support of his aboveFsubmission, Shri Basant R, learned Senior Advocate has heavily reliedupon the decision of this Court in the case of K.S. Vidyanadam v.Vairavan, reported in (1997) 3 SCC 1.

6.7 It is further submitted by the learned Senior Advocate appearingon behalf of the appellant that even the High Court has materially erredGin dismissing the application for additional evidence under Order 41 Rule27 of the CPC by not permitting the appellant to produce the xeroxcopies of the certified copies of the agreement of sale dated 30.08.1993executed by the plaintiff in favour of one Vegisina Venkata Satya AnandaGajapathi Raju and the deposition of the plaintiff in O.S. No. 236 of 1994on the file of the Principal Senior Civil Judge, Kakinada. It is submittedH

that if both the aforesaid documents would have been permitted toproduce on record as an additional evidence, it can be seen that theplaintiff was not having sufficient fund to pay the balance saleconsideration.

6.8 Shri Basant R, learned Senior Advocate appearing on behalfof the appellant has submitted that even otherwise in the facts andcircumstances of the case, the courts below have materially erred inpassing the decree for specific performance of the contract for sale ofimmovable property which was after number of years and would causeundue hardship to the defendant. It is submitted that in the present casethe plaintiff waited till the period of limitation to come to an end and evendid not file the suit for specific performance immediately. It is submittedthat therefore the grant of decree for specific performance in thecircumstances would amount to an instrument of oppression giving unfairadvantage to the vendee. In support of his above submission, learnedSenior Advocate has heavily relied upon the decision of this Court in thecase of P.R.Deb and Associates v. Sunanda Roy, reported in (1996)4 SCC 423.

6.9 It is further submitted by the learned Senior Advocate appearingon behalf of the appellant that in the present case in the agreement tosell, it was specifically mentioned that the balance sale considerationwas to be paid within a period of three months from the date of executionof the agreement to sell. It is submitted that admittedly the plaintiff didnot pay the balance sale consideration within three months from thedate of execution of the agreement to sell and therefore the said failuredisentitled the plaintiff to obtain decree of specific performance. Insupport of his above submission, learned Senior Advocate has heavilyrelied upon the decision of this Court in the case of Padmakumari v.Dasayyan, reported in (2015) 8 SCC 695.

6.10. Making the above submissions and relying upon the abovedecisions, it is prayed to allow the present appeals.

7. The present appeals are vehemently opposed by Shri PramodSwarup, learned Senior Advocate appearing on behalf of therespondent – the original plaintiff.

7.1 It is submitted by the learned Senior Advocate appearing onbehalf of the respondent that in the present case there are concurrentfindings recorded by both the courts below that there was a failure on

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Athe part of the defendant – vendor to perform her part of the terms ofthe contract and that the plaintiff was always ready and willing to paythe balance sale consideration. It is submitted that the aforesaid findingsof fact recorded by the learned trial Court as well as the High Court areon appreciation of evidence and therefore the same may not be interferedwith by this Court. It is submitted that in view of the aforesaid findingsBof fact recorded by the trial Court, confirmed by the High Court, it cannotbe said that the learned trial Court and the High Court committed anerror in passing a decree for specific performance.

7.2 It is vehemently submitted by the learned Senior Advocateappearing on behalf of the respondent that in fact the defendant in replyCto the notice – A3 as well as in her deposition has specifically admittedthat the land was to be measured and only thereafter the sale deed wasto be executed. It is submitted that as admitted the land was not measuredand therefore there was no occasion on the part of the plaintiff to paythe balance sale consideration at the relevant time. It is submitted thatDeven the defendant – vendor did not give the sale deed in her favourexecuted by Y. Somayya Choudary. It is submitted that Y. SomayyaChoudary was the husband of the sister of the defendant and only witha view to save the property from the Agricultural Land Ceiling Act, heexecuted the sale deed in favour of the defendant. It is submitted thatthe plaintiff insisted for the final certificate issued by the Land TribunalEso as to see that there is a clear title in favour of the defendant – vendor.It is submitted that there was a necessity to have the land measured. Itis submitted that therefore when the vendor neither gave the sale deedin her favour nor gave the final certificate/order issued by the LandTribunal nor even got the land measured, there was a cloud on the titleFwhich was required to be removed by the defendant as vendor, beforethe plaintiff makes the payment of balance sale consideration. It issubmitted that as the defendant – vendor failed to clear the cloud by notgiving the copy of the sale deed in her favour; by not producing the finalcertificate/order issued by the Land Tribunal and by not measuring the land till then there was no question of any payment of balance saleGconsideration by the plaintiff. It is submitted that from the very beginning,it was the case on behalf of the plaintiff that the plaintiff was alwaysready and willing to pay the balance sale consideration, subject to thedefendant’s fulfilling her part of the contract.

7.3 It is further submitted by the learned Senior Advocate appearingHon behalf of the respondent that unless and until the defendant – vendor

complied with her terms and conditions of the agreement by fulfilling herpart of the contract, the plaintiff was not required to deposit any amounteither in the bank or with the Court. It is submitted that as soon as thelearned trial Court directed to deposit, the plaintiff deposited the balancesale consideration to show his bonafides. It is submitted that merelybecause in the year 1993 when the amount was deposited the plaintiffmight have deposited the said amount out of the fund received by sellingthe property in the year 1993 by that itself cannot be said that priorthereto the plaintiff was unable to pay the balance sale consideration.

7.4 Making the above submissions and relying upon the decisionof this Court in the case of Narinderjit Singh v. North Star EstatePromoters Limited, reported in AIR 2012 SC 2035, it is prayed todismiss the present appeals.

8. We have heard the learned Senior Counsel for the respectiveparties at length.

9. We have perused and considered in depth the impugnedjudgment and order passed by the High Court as well as the judgmentand decree passed by the learned trial Court. At the outset, it is requiredto be noted that as such there are concurrent findings of fact by both,the learned trial Court as well as the High Court that it was the appellant – vendor who did not perform her part of the contract. The learned trialCourt also observed and held that as the respondent – vendee depositedinto Court the amount payable by him as per Ex. A1, which was as perthe order of the trial Court, and therefore his failure to “demonstrate”that he was having sufficient money with him to pay the balance saleconsideration under Ex. A1 by the date of his evidence is not much ofconsequence and the contention of the appellant – vendor that therespondent – vendee was not ready and willing to perform his part ofthe contract cannot be believed or accepted. The aforesaid finding hasbeen confirmed by the High Court.

10. It is true that in Ex.A1, it was not specifically mentioned thatvendor has to first get the land measured and only thereafter the vendeehas to pay the balance sale consideration. It is also true that as per Ex.A1 – agreement to sell the vendee was required to deposit the balancesale consideration within a period of three months from the date ofexecution of the agreement. However, at the same time, it was thespecific case on behalf of the plaintiff – vendee that it was also agreedthat the vendor has to execute the sale deed after measuring the suit AB

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Aland. The aforesaid is as such admitted by the vendor – the defendant,not only in reply to the notice dated 14.04.1987 but as well in herdeposition. In the reply to the notice on 14.04.1987, the defendant hasspecifically admitted that the sale deed should be executed aftermeasuring he land and after arriving at the consideration for the landthat was arrived at on measurement. Even in the cross-examination,Bthe defendant – vendor who has been examined as DW1 has specificallyadmitted that at the time of execution of the agreement, it was settled toget the land measured and to arrive at the consideration and to deliverthe original sale deed. It has also come on record that no measurementwas carried out at any point of time, more particularly after the executionCof the agreement to sell. Thus, till the land was measured and the finalamount was arrived at, there was no obligation on the part of the vendee– the plaintiff to deposit/pay the balance sale consideration. It is requiredto be considered along with the fact that all throughout the vendee wasinsisting that the original sale deed in favour of the vendor be given to the vendee and that the final certificate issued by the Land Tribunal beDshown and given to the vendee. It is an admitted position that copy ofthe sale deed was not given to the vendee. However, it was the case onbehalf of the defendant – vendor that the plaintiff was informed that theoriginal sale deed is produced in the court in the proceedings initiated byY.Somayya Choudary – predecessor in title and therefore the vendeeEmay get the copy from that court. Nothing is on record on which datethe vendor delivered to the vendee the land ceiling papers. At this stage,it is required to be noted that the land in question was subjected to theland ceiling proceedings. It has come on record that the vendor –defendant purchased the suit property by sale deed dated 6.10.1971from one Y. Somayya Choudary – the husband of the sister of the vendor.FFrom the evidence, it appears that Y. Somayya Choudary was alsoclaiming the ownership over the land in question. Dispute was that Y.Somayya Choudary executed the sale deed in favour of the defendant –vendor with a view to see that the land is not declared as excess landunder the Land Ceiling Act. It has come on record that the Land TribunalGheld in favour of the vendor and the transaction in her favour was foundto be bonafide. However, the said Y. Somayya Choudary was alsocontinued to claim the ownership which was not accepted by the landTribunal. That is why, the vendee – the plaintiff was insisting to deliverthe land ceiling papers. The conduct on the part of the plaintiff – vendeeto insist for the original sale deed in favour of the vendor and the deliveryH

of the land ceiling papers was natural. Any prudent person who was topurchase the property would definitely insist for the title papers, so as tobe satisfied that the title is clear. Before the learned trial Court, thedefendant did not produce any final order/certificate issued by the LandTribunal, which came to be produced for the first time before the HighCourt along with the application for additional evidence under Order 41Rule 27 of the CPC. The High Court permitted the appellant to producethe proceedings of the Land Reforms Tribunal dated 20.11.1976. Thesame came to be considered by the High Court and observed that Ex.B1 is a xerox copy of a certified copy of the order dated 20.11.1976 ofthe Land Reforms Tribunal. The High Court has also observed that therelevant portion of the certified copy (Ex. B1) which contain the detailsrelating to the date when the copy application was filed; when the stampswere called for and when the copy was made ready are not available inEx. B1. The High Court has also observed that if they are available, thedate on which the copy application was made would have known. Thaton appreciation of evidence and considering the document Ex. B1, theHigh Court has specifically observed that it cannot positively be saidthat the original of Ex. B1 was available with the vendor by the date ofEx. A1. Therefore, the High Court observed that the contention of theappellant that the respondent was shown the document relating to landceiling clearance at the time of Ex. A1 cannot be believed or accepted.The aforesaid is the finding recorded on appreciation of evidence.Therefore, the learned trial Court and the High Court have specificallyobserved and held that the buyer insisted on the seller producing all thedocuments necessary for making out a complete chain of his/her title.

Therefore, on conjoint reading of Ex. A1 and the reply to thenotice by the defendant dated 14.04.1987 and the cross-examination ofthe defendant – vendor, both the learned trial Court and the High Courthave rightly observed and held that it was the appellant – vendor that didnot perform her part of the contract. Once, the finding is recorded thatit was the appellant – vendor that did not perform her part of the contract,thereafter as rightly observed by the High Court, the failure on the partof the vendee to “demonstrate” that he was having sufficient moneywith him to pay the balance sale consideration under Ex. A1 by the dateof his evidence is not much of consequence. Even otherwise, it is requiredto be noted that the plaintiff deposited the entire balance sale considerationas directed by the learned trial Court within the extended period of time.It is required to be noted that as it was submitted on behalf of the AB

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Adefendant before the learned trial Court that the plaintiff does not haveany capacity to pay the balance sale consideration, to test his bonafidesthe learned trial Court directed the plaintiff to deposit the balance saleconsideration which the plaintiff did deposit. Merely because the saidamount was deposited out of the fund/amount received by him by sellingthe property in the year 1993, by that itself cannot be presumed and/orBinferred that at the time of execution of the agreement to sell and/orthereafter even at the time of the notice, the plaintiff was not havingsufficient fund to pay the balance sale consideration. It is required to benoted that an agreement to sell is dated 30.12.1985 and the plaintiff wasdirected to deposit the amount in the year 1993. It is not expected fromCthe plaintiff that he would continue to deposit the same with the bank allthese years. What is required to be considered is as and when he iscalled upon to make the deposit, he has deposited the amount to showhis bonafides or not? Therefore, as such, both the learned trial Court aswell as the High Court have rightly passed a decree for specificperformance.D

11. Now so far as the submission on behalf of the appellant that ifthe decree for specific performance of the contract is passed after numberof years, it would cause undue hardship to the defendant – vendor andthe reliance placed upon the decision of this Court in the case of P.R.Deb(supra) is concerned, it is required to be noted that in the written statementEthe defendant has not pleaded any hardship to be caused if the decree ofspecific performance of the contract is passed against the defendant –vendor. At this stage, the decision of this Court in the case of A. MariaAngelena v. A.G. Balkis Bee, reported in AIR 2002 SC 2385 is requiredto be referred to. In the aforesaid case, the vendor sought to raise theFplea of hardship for the first time before this Court and this Court did notpermit the vendor to raise such a plea of hardship by observing that asno plea as to hardship if relief for specific performance is granted wasraised by the defendant – vendor in written statement nor any issue wasframed that the plaintiff – purchaser could be compensated in terms of the money in lieu of decree for specific performance, such plea cannotGbe entertained for the first time in appeal by way of SLP, more so, whenthere are concurrent findings that the plaintiff was ready and willing toperform his part of the contract has been recorded by the lower courts.Therefore, the plea raised on behalf of the vendor on hardship cannot bepermitted to be raised now, more particularly when no such plea wasHraised/taken in the written statement.

12. Now so far as the reliance placed upon the decisions of thisCourt by the learned Senior Advocate appearing on behalf of the appellant,referred to hereinabove, are concerned, none of the decisions shall beapplicable to the facts of the case on hand and more particularly thefindings recorded by the learned trial Court, confirmed by the High Court,which we also confirm.

13. In view of the above and for the reasons stated above, thepresent appeals fail and deserve to be dismissed and are accordinglydismissed. We confirm the judgment and decree passed by the learnedtrial Court for specific performance of the agreement to sell dated30.12.1985, confirmed by the High Court. However, in the facts andcircumstances of the case, there shall be no order as to costs.

Nidhi Jain

Appeals dismissed.

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