A. Marikar vs Sri Satyanarayana Films, a registered Partnership firm represented by its Managing Partner, Konathala Appa Rao

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(AP) 727

HIGH COURT OF ANDHRA PRADESH
THE HONOURABLE MR. JUSTICE G. BHAVANI PRASAD
Smt. A. Marikar
Versus
Sri Satyanarayana Films, a registered Partnership firm represented by its Managing Partner, Konathala Appa Rao
A.S. No. 2378 of 2001
Date of Judgment : 23-10-2009

Advocates appeared:
For the Petitioner:SMT. N.P. Anjana Devi, /Satyanarayana, Advocates. For the Respondent:V.V.L.N. Sarma, Advocate.

Headnote:A) SPECIFIC RELIEF ACT, 1963, Section 20 –Appeal against decree of a specific performance of sale agreement of immovable property which is a vacant site - Challenged mainly on the ground that the time being essence of the contract, plaintiff took no steps to get necessary clearance for the total period of three month but issued a notice and filed a suit at the fag end of stipulated third year – Plaintiff had only paid about only 5 % of the agreed consideration and had also the advantage of taking possession of the land on the date of agreement itself – For the first time the inordinate price escalation is pleaded and it is argued that the plaintiff is not entitled to specific performance – However judicial notice can be taken of the escalation of vacant places in urban areas like the present one which is Vishakhapatnam.
       B) SPECIFIC RELIEF ACT, 1963, Section 20 – The necessary pre-requisites for execution of sale deed like obtaining urban land ceiling and income tax clearances etc. were not fulfilled – No steps were taken by either of the parties to the suit for obtaining these clearances except throwing the blame on each other by exchange of legal notices at the fag end – In the normal circumstances it is for the defendant to take steps for obtaining these licenses and the plaintiff could not be entirely found fault for the same – Judicial notice can be taken of the Government valuation of Rs. 15000/- per square yard –
       C) SPECIFIC RELIEF ACT, 1963, Section 20 – Delay and limitation alone can not be a ground for non-suiting a plaintiff for a specific performance, but delay coupled with the inaction of the plaintiff to demand specific performance for a long time may be one of the facts to be considered suggesting the surrender or waiver of the right of specific performance.
       D) SPECIFIC RELIEF ACT, 1963, Section 20 - Equitable jurisdiction – For deciding the respective inequities to be suffered by the plaintiff and defendant all relevant of each case has to be considered by the court judiciously and fairly- While the defendant should e normally held responsible for obtaining necessary statutory licenses and his silence to demand for payment of the balance consideration are relevant facts, the courts shall also take into account the plaintiff having taken over the possession of he vacant land and made constructions over it and never informing the defendant that balance consideration being kept for his payment or never demanding the defendant to take steps to obtain necessary statutory clearances are relevant considerations.
       E) SPECIFIC RELIEF ACT, 1963, Section 20 - Doctrine of comparative hardship - Process of balancing equities – On facts of the case direction to the plaintiff to pay an additional amount above the consideration agreed upon to the the tune of Rs. 1 crore is considered just and proper.

JUDGMENT :

1. The decree of the suit with costs for specific performance by the judgment and decree dated 18-06-2001 in O.S. No.93 of 1993 on the file of the Principal Senior Civil Judge’s Court, Visakhapatnam led the unsuccessful defendant to file the present appeal.

2. The plaintiff filed the suit for specific performance of the agreement of sale dated 03-06-1989 in respect of the vacant site of 1500 square yards with a compound wall in S.No.11/4F of Butchirajupalem village within Visakhapatnam Municipal Corporation limits. The plaintiff claimed that the defendant executed the suit agreement in favour of the plaintiff, a registered partnership firm represented by its Managing Partner Konathala Apparao agreeing to sell the suit site for Rs.3,80,000/- and delivered possession under the agreement on receiving an advance of Rs.20,000/-. A registered sale deed was agreed to be executed within three months and urban land clearance certificate, income tax clearance certificate, etc., were undertaken to be obtained by the defendant. The plaintiff kept Nalu Appanna as watchman who is living in the suit land in a thatched and A.C. sheet shed and the plaintiff got a compound wall constructed all around at a height of 5 feet for protection against illegal encroachments. The plaintiff was always ready and willing to perform its part of the contract and was demanding the defendant to execute a registered sale deed. But the defendant was postponing on some pretext or the other and did not obtain the clearance certificates as agreed. To the lawyer’s notice dated 06-03-1992 issued by the plaintiff, the defendant gave a reply claiming the consideration to be different and possession to be not delivered. The plaintiff sent a rejoinder on 18-05-1992 enclosing a copy of the sale agreement as requested by the defendant, on which the defendant remained silent and hence, the suit.

3. The defendant resisted the suit contending that the plaintiff has to strictly prove its registration and the authority of Konathala Apparao. The defendant executed the suit agreement, but it was neither duly stamped nor registered as per the law in force. The possession of the suit site was never delivered to the plaintiff and the suit agreement is unenforceable, inoperative and void. The plaintiff had to obtain the clearance certificates and the plaintiff miserably failed to perform its part of the contract though time was essence of the contract under the inadmissible and void document. The defendant never undertook to obtain any clearance certificates and any unauthorised construction of any compound wall does not confer any right, title or interest on the plaintiff. The defendant gave proper and prompt reply to the notice dated 06-03-1992 and the suit is barred by time. The suit has no cause of action and is incorrectly valued. The plaintiff is not entitled to any relief and hence, the defendant sought for the dismissal of the suit with costs.

4. On such pleadings, the trial Court settled the following issues for trial:

1. Whether the plaintiff-firm is registered under Indian Partnership Act ?

2. Whether the suit sale agreement dated 3-6-1989 is not valid and enforceable ?

3. Whether the plaintiff is in possession of the suit schedule property ?

4. Whether the plaintiff performed or ready and willing to perform his part of contract ?

5. Whether the suit is barred by time ?

6. Whether the valuation of the suit is not correct ?

7. Whether the plaintiff is entitled for the specific performance of suit sale agreement dated 3-6-1989 ?

8. To what relief ?

5. P.W.1, P.W.2, D.W.1 and D.W.2 were examined and Exs.A.1 to A.7 and B.1 to B.4 were marked during trial.

6. The trial Court rendered the impugned judgment firstly holding the plaintiff to be a registered firm as proved by Ex.A.1 firm registration certificate and Ex.A.7 copy of Form-

A. The trial Court noted that the plaintiff got Ex.A.2 agreement of sale impounded and paid the stamp duty and penalty imposed by the Colle

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2009 Supreme(AP) 727

HIGH COURT OF ANDHRA PRADESH THE HONOURABLE MR. JUSTICE G. BHAVANI PRASAD Smt. A. MarikarVersusSri Satyanarayana Films, a registered Partnership firm represented by its Managing Partner, Konathala Appa Rao A.S. No. 2378 of 2001 Date of Judgment : 23-10-2009

Cases Referred (19)

HIGH COURT OF ANDHRA PRADESH
THE HONOURABLE MR. JUSTICE G. BHAVANI PRASAD
Smt. A. Marikar
Versus
Sri Satyanarayana Films, a registered Partnership firm represented by its Managing Partner, Konathala Appa Rao
A.S. No. 2378 of 2001
Date of Judgment : 23-10-2009