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IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
B. Siva Sankara Rao, J.
T. Pattabhi Rama Rao - Appellant
Versus
Y. Yadava Rao & Others - Respondents
CCCAMP No. 643 & 644 of 2015 in C.C.C.A. Nos. 111 & 112 of 2009
Decided On : 22-04-2016
Civil Law – Civil Suit – Transfer of Property Act – Section 73 – Dismissal of Suit – The defendant Nos.2 to 7 are no other than the legal heirs of the original owner of property by name late Smt. D.L. Kanthamma, w/o late Sri D.B. Narayana, for specific performance of the contract for sale with alternative prayer for refund of amounts with interest and for suit costs and such other reliefs. On contest by D.1-Developer as well as D.2 to D.7 supra, the learned Judge vide two separate judgments dated 26.03.2009 decreed both the suits in part with costs only against the D.1-Devoloper supra, for the alternative relief of refund of the amount holding as Rs.40,000/- in O.S. and Rs.5,00,000/- in O.S. No. 1690 of 2003, together with interest at 12% p.a. from date of demand on 10.06.2002 till date of decree and with subsequent interest from date of decree till realization at 6% p.a. while dismissing the respective suit claims including for refund against D.2 to D.7 – Held, apex Court in Delhi Development Authority Vs. Skipper Construction Company Pvt. Ltd., AIR 2000 SC 573(1) and judgment of another Bench of this Court in Mudureddipalle Sanjeeva Reddy Vs. Butturu Rama Mohan Reddy (2010(1) ALD 470) and also from the expression with reference to the provision similar to it in Rose Vs. Watson (1864) 10 HIC 672) following the earlier expression in De Bernales Vs. Wood (1812) 3 Camp. 258) of right to refund of the amount is safeguarded by giving the Purchaser of lien on the property and interest to be allowed from the time of purchase on the amount paid. It is further the Full Bench of the Lahore High Court in Shankri Vs. Milkhasingh (AIR 1941 Lah.407(FB) held that the power of giving charge over the property covered by the contract for sale is not just kept by any agreement, but by operation of law from the moment of payment of the purchase amount. It is also wayback held by the Madras High Court as a binding precedent on this Court in Sura Reddy Vs. Ramanarsu (AIR 1937 Madras 714) that lien given by virtue of clause 6(b) of Section 55 of the T.P. Act can be excluded only by a contract to the contrary and not otherwise to say the lien is statutorily created to enforce unless given up by specific clause of exclusion. In Delhi Development Authority Supra categorically observed that the charge specified under Section 55(6)(b) of the T.P. Act in favour of power is statutory charge against the vendor interest in the property to fasten the charge of such property to enforce and it is observed the interest payable to the buyer is from the date of payment of purchase money to the seller to the date of delivery of property or execution of sale deed or otherwise and the period of limitation to enforce such charge for recovery on the substituted security is 12 years under Article 62 of the Limitation Act and not mere three years. In Muniappa Vs. Subbaiah (AIR 1917 Madras 880) it is held on the scope of charge under Section 55(6)(b) of the T.P. Act as akin to the principle to apply to the enforcement of mortgage and substituted securities from the general principle of law in Section 73 of the T.P. Act – Appeals are partly allowed (Paras 34 and 35)
1. The respective two plaintiffs no other than own brothers by names T. Pattabhi Rama Rao (for short, TPR) in O.S. No. 1689 of 2003 and Sri T. Krishna Murhty (for short, TKM) in O.S. No. 1690 of 2003 on the file of the VIII Additional Senior Civil Judge(FTC), City Civil Court, Hyderabad, maintained the two suits supra against the 7 self-same defendants by names Y. Yadava Rao, 2. Dr. D. Satyanarayana Rao, 3. Sri D. Suryanarayana Rao, 4. Dr. D. Lakshmi Narayana Rao, 5. Sri D. Venkat Narayana Rao, 6. Sri D.K. Narayana Rao and 7 Sri D. Ram Narayana Rao, of whom the defendant Nos.2 to 7 are no other than the legal heirs of the original owner of the property by name late Smt. D.L. Kanthamma, w/o late Sri D.B. Narayana, for specific performance of the contract for sale with alternative prayer for refund of the amounts with interest and for suit costs and such other reliefs. On contest by D.1-Developer as well as D.2 to D.7 supra, the learned Judge vide two separate judgments dated 26.03.2009 decreed both the suits in part with costs only against the D.1-Devoloper supra, for the alternative relief of refund of the amount holding as Rs.40,000/- in O.S. No. 1689 of 2003 and Rs.5,00,000/- in O.S. No. 1690 of 2003, together with interest at 12% p.a. from date of demand on 10.06.2002 till date of decree and with subsequent interest from date of decree till realization at 6% p.a. while dismissing the respective suit claims including for refund against D.2 to D.7.
2. It is now impugning the respective two judgments and decrees of the trial Court, the two independent appeals supra i.e. CCCA No.111 of 2009 against O.S. No. 1689 of 2003 and CCCA No.112 of 2009 against O.S. No. 1690 of 2009 are maintained by the self-same plaintiffs/appellants against the selfsame defendants/respondents. It is during pending of the appeals, the 3rd respondent by name Sri D. Suryanarayana Rao died and his wife and sons as his legal representatives are brought on record as R.8 to R.10 by names Smt. D. Jyothsna Kumari, Sri D. Muralidhar Rao and Sri D. Bhadri Narayana as per orders in CCCAMP No.458 of 2012 in CCCA No.111 of 2009 and as per the orders, dated 21.11.2012 in CCCAMP No.516 of 2012 in CCCA No.112 of 2009.
3. It is during pendency of the two appeals, ad interim injunction sought by the appellants against the respondents supra from alienating the plaint/decree schedule property, in CCCAMP No.369 of 2009 and CCCAMP No.370 of 2009 respectively in the two respective appeals and the interim injunctions respectively were granted. So far as CCCAMP No.369 of 2009 in C.C.C.A.No.111 of 2009 is concerned, there is a separate application to vacate the stay/interim injunction supra. Opposing the interim injunction orders supra, counter affidavit of the R.2 to R.7(D.2 to D.7) were filed. The interim injunction applications as on date with the orders supra are in force and the applications are still pending. The applications are not dealt with separately herein, but for to dispose of subject to the result of the two appeals.
4. At the request of both the sides and for sake of convenience from the issues involved in both the matters since identical against self-same respondents/defendants, both the appeals are taken up together for common disposal.
5. It is during the course of common hearing of the appeals referred supra, on behalf of the plaintiffs/appellants Sri T. Krishna Murthy filed two applications vide CCCAMP No.643 and 644 of 2015 to mark the copy of the Development Agreement (for short, the DA) dated 03.12.1998 by receiving as additional evidence and as exhibit in both the appeals and said applications are opposed by counter affidavit of R.4 and common counter affidavit of R.2, 3, 5 to 7 through R.6(R.2 to R.7 of the appeal). These two petitions are taken up with the appeals for hearing and disposal.
6. From this background, the common contentions but for one or two grounds in relation to the respective amounts and payments, in the grounds of both the appea
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