(Prayer: AGGRIEVED by the judgement and Decree passed by the Additional District Judge, Hindupur in 0 S.No.55 of 2012, dated, 07-09-2016, decreeing the suit of the Respondent/plaintiff, the Appellants/Defendants
IA NO: 1 OF 2016(ASMP 2762 OF 2016
Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings including Execution proceedings in pursuance of the Judgment and Decree passed in O.S.No. 55 of 2012, dated, 07.09.2016 on the file of the Court of the Additional District Judge, Hindupur pending disposal of the aobve appeal, and also be pleased to pass
IA NO: 1 OF 2017(ASMP 436 OF 2017
Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased vacate the interim order dated 02.01.2017 in ASMP No.2762/2016 in As no.1135/2016)
A. Hari Haranadha Sarma, J.
Introductory:
1. This is an appeal filed under Section 96 r/w Order XLI Rule 1 of the C.P.C. by the defendants in the suit in O.S.No.55 of 2012 on the file of the Court of the Additional District Judge, Hindupur. The respondent herein is the plaintiff before the Trial Court.
2. For the sake of convenience, the parties will be hereinafter referred to as the plaintiff and the defendants, as per their ranking before the Trial Court.
Case of the plaintiff:
3. [i] Defendant No.1 has right and possession over the suit schedule property. Although defendant Nos.2 to 5 have no existing interest over the suit schedule property, all have agreed to execute a registered sale deed in respect of the suit schedule property for a consideration of Rs.70,00,000/- @ Rs.35,00,000/- per acre. An agreement of sale dated 17.06.2012 was executed in favour of the plaintiff. An amount of Rs.16,50,000/- was paid towards part payment. Three months‟ time was fixed for payment of balance sale consideration, fixation of boundaries and execution of the sale deed.
[ii] Defendant No.1 has sent a letter through registered post dated 06.07.2012 to the plaintiff, describing the agreement as dated 17.03.2012, though the suit agreement is dated 17.06.2012 as if the time had expired. Immediately the plaintiff approached defendant No.1 and questioned about the changing the date of the sale agreement from 17.06.2012 to 17.03.2012.
[iii] Defendant No.1 accepted the mistake and received Rs.13,00,000/- on 14.07.2012 from the plaintiff and endorsed the same on the reverse of the agreement of sale. Defendant Nos.2 to 4 have also affixed their signatures.
[iv] The plaintiff was ready with the balance sale consideration and to get the sale deed executed, but the defendants postponed the same on one pretext or the other.
[v] The plaintiff got issued legal notice dated 03.08.2012 to the admitted address, calling upon the defendants to come forward to discharge their obligations under the agreement of sale and execute the registered sale deed by receiving the balance sale consideration. But the notices were returned as the defendants were not available in the addresses.
[vi] Further, second legal notice dated 25.10.2012 was issued by way of reminder to the original address and to the changed address. In the second notice, the defendants were asked to execute the registered sale deed on 01.11.2012 by making themselves available before the Sub-Registrar office, Hindupur. Since the same was not complied with by the defendants, the suit is filed for specific performance of agreement terms by way of direction to execute a registered sale deed in respect of the schedule property and for incidental reliefs.
4. A common written statement was filed on behalf of the defendant Nos.1 to 3 and the same was adopted by defendant Nos.4 and 5.
Case of the defendants:
5. [i] Defendant No.1 purchased the property from one Smt. Sanjeevamma, W/o. Krishnareddygari Amnereddy, under registered sale deed dated 13.04.1988 vide document No.938 of 1998. Defendant Nos.1 to 5 have been living under one roof.
[ii] One K. Anandachari was the mediator between defendant No.1 and the plaintiff for the sale of the suit schedule property. Bargain was settled for Rs.70,00,000/- at the rate of Rs.35,00,000/- per acre. The agreement of sale was executed at Kurnool, in the house of the defendants, on 17.03.2012, on which date the stamp was purchased by the plaintiff and the plaintiff was accompanied by a document writer.
[iii] The witnesses who attested the agreement of sale did not sign on the date of the agreement of sale. The date on the agreement of sale was materially altered from 17.03.2012 to 17.06.2012. The document was materially altered with a mala fide intention just before the filing of the suit.
[iv] In fact, the defendant No.1 sent a letter informing that three months‟ time stipulated under the agreement had lapsed. Time was not extended after receipt of Rs.13,00,000/-. The readiness and willingness of the plaintiff is incorrect. The allegations contra by the plaintiff are false. As per the agreement dated 17.03.2012, the time stipulated expired by 18.06.2012 and defendant No.1 is not liable to return the amount even as per the agreement.
[v] The defendants have preferred a Police complaint regarding the fraud. They have retained the photocopy of the agreement of sale dated 17.03.2012. The readiness and willingness of the plaintiff and the postponement of the execution of the sale deed by the plaintiff etc. are all false and the suit is liable to be dismissed.
Issues:
6. Issues framed by the learned Trial Court are:
1) Whether the suit agreement dated 17.06.2012 executed by the defendants in favour of the plaintiff is valid and binding on the defendants?
2) Whether the suit agreement dated 17.06.2012 is materially altered as pleaded by the defendants in their written statement?
3) Whether the payment of Rs.13,00,000/- made by the plaintiff on 14.07.2012 is true and correct?
4) Whether the plaintiff is entitled for specific performance of the suit agreement of sale dated 17.06.2012 as prayed for?
5) To what relief?
Evidence:
Oral evidence:
On behalf of the plaintiff:
7. Plaintiff was examined as P.W.1. One K. Anandachari, said to be the mediator who settled the deal, was examined as P.W.2. He is one of the attestors of the agreement of sale. One S. Abdulla, a document writer who scribed the agreement of sale, was examined as P.W.3.
On behalf of the defendants:
8. Defendant No.1 was examined D.W.1. One Guduru Madhusudhana Naidu, third party, was examined as D.W.2 and defendant No.4 was examined as D.W.3.
Documentary evidence:
On behalf of the plaintiff:
9. Ex.A1 is the agreement of sale for Rs.70,00,000/-, Ex.A2 is the part-payment endorsement dated 14.07.2012, Ex.A3 is the letter dated 06.07.2012 of defendant No.1, Ex.A4 is the legal notice got issued by the plaintiff, Ex.A5 is the postal receipt obtained by Ex.A4, Ex.A6 is the returned postal covers pertaining to Ex.A4, Ex.A7 is another legal notice dated 25.10.2012, Ex.A8 is the postal receipt dated 25.10.2012 and Ex.A9 is the acknowledgment dated 29.10.2012 of defendant No.2.
On behalf of the defendants:
10. Ex.B1 is the photostat copy of the agreement. Ex.B2 is the letter dated 06.07.2012 of defendant No.1 corresponding to Ex.A3. Ex.B3 is the acknowledgment pertaining to Ex.B2. Ex.B4 is the petition / complaint sent to the Sub-Inspector of Police, Parigi. Ex.B5 is the postal acknowledgment of the Sub-Inspector of Police, Parigi. Ex.B6 is the postal acknowledgement of the Sub Registrar, Hindupur. Ex.B7 is the hall ticket for the post of Junior Assistant of defendant No.4 / D.W.3, to show that he was not present on the date of the agreement of sale and Ex.B8 is the O.M.R. answer sheet pertaining to Ex.B7 of defendant No.4 / D.W.3.
11. Learned Trial Court, after referring to the oral and documentary evidence of both sides, decreed the suit, accepting the case of the plaintiff and rejecting the objections of the defendants.
The Reasons assigned by the learned Trial Court are:
12. [i] The fabrication in the agreement of sale is not made out. The defendant failed to prove the pleaded material alteration.
[ii] Receipt of Rs.13,00,000/- on 14.07.2012 is admitted. The D.W.1, who is a party to the suit, has admitted receipt of the amount and endorsement of the same on the back of the agreement, which shows that the agreement was in force. If the contract was rescinded, there can be no occasion for receiving Rs.13,00,000/-. There is no mention for forfeiture of Rs.16,50,000/- paid initially.
[iii] Receipt of Rs.13,00,000/- on 14.07.2012 indicates the consent for continuation of the agreement.
[iv] The part-payment of Rs.13,00,000/- made by the plaintiff is proved.
Arguments in the appeal:
For the appellants / defendants:
13. [i] The issues are wrongly framed and purport of Exs.B1 to B8 documents is not properly considered.
[ii] The material alteration of Ex.A1 agreement of sale is not properly appreciated by the Trial Court.
[iii] The readiness and willingness of the plaintiff is not proved by the plaintiff, but the suit has been erroneously decreed.
[iv] The Trial Court erred in not comparing Ex.A1 with Ex.B1. If Ex.B1 is compared with Ex.A1, the contention of the defendant as to fabrication and material alteration of Ex.A1 becomes acceptable.
[v] The evidence of D.W.3 is simply brushed aside.
14. Heard both sides. Perused the impugned judgment and decree, material record and grounds urged in the memorandum of appeal. Thoughtful consideration is given to the arguments advanced by both sides.
15. The points that arise for determination in this appeal are:
1) Whether the agreement of sale dated 17.06.2012 has been properly proved and whether the same is binding on the defendants?
2) Whether the agreement of sale dated 17.06.2012-Ex.A1 is materially altered and whether such alteration has any effect or causes prejudice / disadvantage to the defendants and advantage to the plaintiff?
3) Whether the plaintiff is able to show his readiness and willingness all through and entitlement for a decree of specific performance?
4) Whether the judgment and decree dated 07.09.2016 passed by the learned Additional District Judge, Hindupur is sustainable in law and on facts or requires any interference; if so, on what grounds and to which extent?
5) What is the result of the appeal?
16. Before adverting to the discussion on the points framed, this Court finds it proper to refer to certain facts which are not in dispute (Admitted facts).
(i). Defendant No.1 alone is the owner of the property.
(ii). Other defendants have subscribed their signatures to Ex.A1-agreement of sale.
(iii). Common written statement is filed by defendant Nos.1 to 3 and adopted by defendant Nos.4 and 5.
(iv). Common cross-examination of plaintiff witness was done on behalf of all the defendants.
(v). Total sale consideration is Rs.70,00,000/- @ Rs.35,00,000/- per acre.
(vi). Advance sale consideration of Rs.16,50,000/- was paid under the agreement of sale and Rs.13,00,000/- was paid on 14.07.2012 and an endorsement was also made acknowledging the receipt of the said amount under Ex.A2.
Facts in dispute:
17. [i] Date of agreement of sale, whether it is 17.03.2012 or 17.06.2012.
[ii] Place of execution of agreement of sale, whether at Kurnool or at Hindupur.
[iii] Readiness and willingness of the plaintiff to have the sale deed executed, being ready with the balance of sale consideration.
Point Nos.1 and 2:
Analysis and Reasoning:
18. Point Nos.1 and 2 are interlinked. Therefore, they are being discussed and answered together.
19. [i] Plaintiff was P.W.1, reiterated the stand taken in the plaint and relied on Ex.A1 to Ex.A9 documents, viz., agreement of sale, part-payment endorsement, letter from the defendants, legal notices got issued by the plaintiff to the defendants and supporting material thereof.
[ii] The cross-examination done on P.W.1 on behalf of the defendants would show that one K. Anandachari acted as a mediator. Rs.16,50,000/- was paid on the date of agreement. Three months‟ time was fixed to pay the balance sale consideration and at the time of registration. P.W.1 denied the execution of the agreement of sale at Kurnool, while asserting that it was executed at Hindupur and claiming that the stamp papers were brought from the Sub-Registrar Office at Hindupur.
[iii] It was admitted by P.W.1 that the stamp papers were purchased on 17.03.2012, but P.W.1 denied that the agreement was executed on the date of purchase of the stamp papers. It is elicited that one S. Abdulla is the document writer who scribed the document. It was suggested that the word „June‟ month is added after scribing the agreement and before filing the suit.
[iv] P.W.1 pleaded ignorance about the complaint, if any, given to the Parigi Police with regard to the material alteration and denied that a photocopy of the agreement was given to the defendants.
[v] P.W.1 asserted that the defendants did not come forward for survey and preparation of pass books. Hence, the matter was delayed.
20. [i] P.W.2 / K. Anandachari, admittedly a mediator, stated in his evidence that on 17.06.2012, the defendants came to Hindupur and executed an agreement of sale in favour of the plaintiff and that an advance sale consideration of Rs.16,50,000/- was paid. One S. Abdulla scribed the agreement and read over the same, upon which the defendants signed the agreement of sale.
[ii] During the cross-examination of P.W.2, it is elicited that P.W.2 went to Kurnool for some talks with the defendants. It was suggested to P.W.2 that on the date of agreement of sale, the daughter of defendant Nos.1 and 2 by name Sarada and Madhusudhana Naidu were present in the house and that they alone attested the Ex.A1 on 17.03.2012.
[iii] He has denied the suggestion that Ex.A1 was not executed at Hindupur. It was suggested to P.W.2 that after receipt of the notice from defendant No.1, the plaintiff and P.W.2 and another created / inserted the date and month in the agreement along with the another attestor.
21. [i] P.W.3-S. Abdulla, the document writer, also stated in tune with the evidence of P.Ws.1 and 2 as to the agreement of sale and payment of advance sale consideration of Rs.16,50,000/-.
[ii] He has denied the suggestions as to visiting Kurnool and execution of Ex.A.1 at Kurnool.
[iii] He has specifically denied the suggestion as to keeping the date and month blank, putting the date beneath the signature and that the agreement was subsequently altered just before filing of the suit.
22. [i] Defendant No.1, as D.W.1, reiterated her defence while admitting execution of the agreement of sale, claiming that the same is executed at Kurnool on 17.03.2012, but denied its execution at Hindupur on 17.06.2012. She has specifically asserted that by 16.06.2012, the time had lapsed and accordingly the agreement stands cancelled. In addition, D.W.1 asserted that the plaintiff was not ready and willing. However, she admitted payment of Rs.13,00,000/- on 14.07.2012.
[ii] During cross-examination, D.W.1 admitted that the suit schedule property was agreed to be sold for Rs.70,00,000/- @ Rs.35,00,000/- per acre. After the scribe read over the contents, the document was executed, but she has volunteered that the non-mentioning of the date was raised and the writer explained that it was not necessary. She has admitted that her husband retired as R.T.C. Depot Manager and that the other defendants are graduates.
[iii] It was suggested to D.W.1 that the plaintiff approached with the balance sale consideration. She has admitted that they had no pattadar passbooks or revenue title deeds for the suit schedule property and that till filing of the suit, they did not try for title deeds and pattadar passbooks but volunteered that after filing of the suit, they approached the MRO and the MRO declined in view of the pendency of the Court case.
[iv] D.W.1 has also admitted that no notice was issued to the plaintiff asking them to come forward for registration with full payment, but the plaintiff himself has sent the notice and the plaintiff had sent the second notice stating that the defendants had not obtained pattadar passbooks and revenue title deeds and demanded compliance with the terms of the agreement.
23. D.W.2, a third party, stated that the agreement was executed on 17.03.2012. He has admitted that D.W.1 had friendship with his father and he has also admitted that the agreement was executed on 17.06.2012. However, he immediately stated that it was executed on 17.03.2012. This indicates the possibility of D.W.2 being interested in the defendant and becomes relevant to suspect his neutrality.
24. [i] D.W.3 is defendant No.4. He claims that the agreement was executed at Kurnool and that part-payment of Rs.13,00,000/- was made on 14.07.2012. He adds that he attended the Junior Assistant recruitment test at Secunderabad and Ex.B7 is the hall ticket. Ex.B8 is the OMR answer script.
[ii] During cross-examination he has stated that the suit schedule property is that of his mother. It was suggested to him that he took the hall ticket but did not attend the examination. Marking of Ex.B7 and Ex.B8 was objected to. The Court found that the electronic documents were admitted without proof under Section 90-A of the Indian Evidence Act, 1872, as the electronic records were produced within five years and a presumption may be drawn in respect thereof and as per Section 65-B of the Indian Evidence Act, 1872, electronic documents are admissible.
Findings:
25. In Ex.A1, there is clear mentioning of the date, month, and year as 17.06.2012. In Ex.B1 there is no such mention. In Ex.B1, the photostat copy relied on by the defendant, the words “June 17” are missing. By relying on the date of purchase of the document as 17.03.2012, the defendants would argue that the document was executed on 17.03.2012 but not on 17.06.2012. Three months time contemplated for performance is expired, according to them. The defendants are not disputing the part- payment endorsement. The part-payment endorsement, Ex.A2, is dated 14.07.2012. By the date of Ex.A2, the defendants had sent a letter, Ex.B2, dated 06.07.2012. If the defendants are serious about the fabrication or material alteration of the date from 17.03.2012 as 17.06.2012, the reason for the defendants accepting payment and making an endorsement under Ex.A2 is not explained. A substantial amount of Rs.13,00,000/- towards part-payment of the balance sale consideration was received and the same is not in dispute. Since Ex.B2 letter is dated 06.07.2012 and part-payment endorsement, Ex.A2 is dated 14.07.2012, which is subsequent to Ex.B2, the allegation that there is fabrication or material alteration of the date of the agreement becomes unacceptable and inconsequential.
26. How the defendants got custody of the photostat copy is not elicited / proved. Alteration of the date will be advantageous to whom and whether the same will work as a disadvantage to the defendants is a question.
27. If the stand of the defendants that the advance stands forfeited and the agreement stands cancelled due to the lapse of three months‟ time, the plaintiff has no occasion to pay Rs.13,00,000/- and the defendants cannot receive the same in respect of a cancelled agreement. If it is not in continuation of the agreement and not in terms of the agreement, why Rs.13,00,000/- was received by the defendant is not explained. Therefore, the argument that the date was altered for the benefit of the plaintiff is not acceptable. The argument of the plaintiff is that, in the photostat copy, the date and month are got blocked and that it is a manipulation by the defendants. However, in the factual scenario, as to receiving of Rs.13,00,000/- was subsequent to Ex.B2 letter of the defendants, the argument that there is material alteration becomes unacceptable.
28. It is not as if the plaintiff has lost the limitation to litigate or file the suit and to save the limitation, the date is altered. Material alteration shall be understood with reference to changing/ altering the liabilities, particularly to save limitation or impose greater liability etc. Two persons P.Ws.2 and 3, the attestor and scribe, have consistently stated about the date on which Ex.A1 was executed. It is not the case of the defendants that P.Ws.2 and 3 are not the attestor and scribe of Ex.A1. They have relied on the evidence of D.W.2, said to be another attestor. The consistency in the evidence of P.Ws.2 and 3 as to contents and assertions, if seen with reference to the evidence of D.W.2 and the long acquaintance of D.W.2 with D.W.1, the evidence of P.Ws.2 and 3 becomes more reliable.
29. Upon appreciation of the evidence of P.Ws.2 and 3, particularly in the light of the recitals in Exs.A1 and A2, in comparison to the recitals in Ex.B1 and the conduct of the defendants in accepting part-payment under Ex.A2 after Ex.B2 notice, this Court is unable to accept the contention of the defendants that there is material alteration.
30. In view of the discussion made above, point Nos.1 and 2 are answered in favour of the plaintiff and against the defendants, concluding that the agreement of sale is properly proved by the plaintiff and the defendants failed to prove the material alteration, having admitted the document.
Point No.3:
31. The plaintiff has asserted that he carried the balance sale consideration and was ready to get the sale deed executed. The reasons canvassed by the plaintiff are that the defendants had to get the pattadar passbooks and title deeds in their favour in respect of the land in their possession, for which they were not ready and they postponed getting the same.
32. It is clearly admitted by D.W.1 that till filing of suit they did not get the pattadar passbooks and after the suit, when they applied to the MRO, the MRO declined to issue the same, stating that the litigation is pending. The plaintiff has got issued two other legal notices covered by Exs.A4 and A7, demanding the defendants to come forward for registration. It is relevant to note that under Ex.A7, the second legal notice, the plaintiff has also asked the defendants to be present at the Sub-Registrar Office. There is clear manifestation of readiness and willingness on the part of the plaintiff to extend the benefit of equitable relief of specific performance in favour of the plaintiff.
33. Upon application of the test contemplated under section 16(c) or Section 20 of the Specific Relief Act, 1963, as applicable in respect of the transaction of the year 2012 in the present case, this Court is of the view that the plaintiff is able to satisfy this Court about his entitlement for specific performance.
34. In this context, the authorities relied on by the appellants / defendants vide R. Kandasamy (since dead) & Others vs. T.R.K. Sarawathy and another (Civil Appeal No.3015 of 2013; (2025) 3 SCC 513) vide para 14, that time can be considered as the essence of the contract in respect of immovable properties, although generally not found are not applicable to the present context of the case. There cannot be a second view that, in certain cases relating to contracts of sale of immovable properties even time can be the essence of the contract, but that shall necessarily be understood with reference to the facts and circumstances of the case and evidence placed before the Court. It is relevant to note that even in the same judgment, the Hon„ble Apex Court observed that relief of specific performance is equitable and the same is discretionary. In the present case, the plaintiff‟s readiness and willingness are manifested and the reasons for delay are explained with reference to the conduct of the defendants.
35. It is not out of place to observe that the plaintiff / respondent in this appeal, while filing an application for vacating the interim order, has clearly asserted that the balance sale consideration of Rs.40,50,000/- had been deposited and sought permission for withdrawal of the same or to vacate the same, and this Court, by order dated 04.04.2017 permitted the plaintiff / respondent to withdraw the balance sale consideration deposited. This indicates the readiness and willingness of the plaintiff to have the relief of specific performance of the agreement / contract covered by Ex.A1.
36. In view of the above discussion, the point framed is answered in favour of the respondent / plaintiff and against the defendants / appellants, concluding that the plaintiff is entitled for specific performance of the agreement of sale dated 17.06.2012 under Ex.A1.
Point No.4:
37. In view of the discussion made above and the conclusions drawn under point Nos.1 to 3 above, this Court finds that there no grounds to interfere with the judgment and decree dated 07.09.2016 passed by the learned Additional District Judge, Hindupur, in O.S.No.55 of 2012. Accordingly, the same is found fit to be confirmed.
Point No.5:
38. For the reasons stated and conclusion drawn under point Nos.1 to 4, the appeal is liable to be dismissed.
39. Accordingly, the Appeal Suit is dismissed and the judgment and decree dated 07.09.2016 passed by the learned Additional District Judge, Hindupur, shall stand confirmed. The plaintiff shall redeposit the balance sale consideration that was withdrawn by him pursuant to the orders of this Court. There shall be no order as to costs.
40. As a sequel, miscellaneous applications pending, if any, shall stand closed.
