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2018 Supreme(AP) 433
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
A. RAMALINGESWARA RAO, J.
P.V. Chowdary and Ors. - Appellant
Versus
Lingala Narasanna and Ors. - Respondent
Appeal Suit No. 1224 of 1999
Decided On : 20-04-2018
Advocate Appeared:
For the Appellant : O. Manohar Reddy
For the Respondent: D. Jagan Mohan Reddy
Headnote:
Civil Law – Contract and Specific Relief – Specific Relief Act, 1963 – Section 16(c) – Suit for specific performance of agreement of sale – Execution of sale – Suit filed for specific performance of agreement of sale executed by first defendant in favour of plaintiff and two others to the extent of share of plaintiff and for delivery of possession or in the alternative for recovery with future interest – Plaintiffs case is that first defendant was absolute owner of property mentioned in the schedule to the plaint he agreed to sell property mentioned in A schedule to plaintiff in favour of plaintiff, Dasari Anjaneyulu and Chinna Nagaraju @ Rs. 19,000/- per cent – Total extent of A schedule property is Acs. 0.25 cents situated in Survey of Dharmavaram Town, Ananthapur District. The purchasers agreed to purchase 1/3rd share of the said property and the first defendant agreed to sell same – On the date of agreement of sale, first defendant received a sum of Rs. 1,00,000/- out of which, an amount of Rs. 33,334/- was paid by plaintiff towards advance money and for execution of agreement of sale in favour of the plaintiff and two others – Plaintiff paid a further amount of Rs. 50,000/- on 12.08.1985 to first defendant for his share of balance consideration – Same was endorsed on the photostat copy of the agreement of sale given to the plaintiff – Plaintiff further stated that he was always ready and willing to perform his part of the contract but the first defendant was evading to perform his part of the contract on some or other ground stating that there were some family disputes – Held, If there is an express stipulation to that effect, the said presumption can be rebutted. He placed reliance on N. Srinivasas case (2009) 5 SCC 182 (supra) in this regard – In the instant case, the first defendant accepted the payment beyond the period stipulated in the contract and he did not issue any notice terminating the contract by stipulating the period thereafter. Further, when a notice was issued by the plaintiff, he refused to receive the same – Suit cannot be held bad for non-joinder of other two purchasers along with the plaintiff since Anjaneyulu and Chinna Nagaraju already got sale deeds executed and in turn, they executed sale deed in favour of in favour of the plaintiff in O.S. Last submission made by learned counsel for the appellants that the trial Court has not exercised its discretion properly while decreeing the suit for specific performance has also to be rejected – Trial Court exercised its discretion and when the said discretion is not clearly wrong on the face of it, it is not proper for this Court to interfere with the said discretion exercised by the trial Court – Appeal is dismissed.
A. RAMALINGESWARA RAO, J.
1. The unsuccessful defendants in O.S. No. 72 of 1997 on the file of the Court of the Senior Civil Judge, Penukonda preferred the present Appeal. The respondent herein, who is the plaintiff in the said suit, filed the suit for specific performance of agreement of sale dated 16.03.1985 executed by the first defendant in favour of the plaintiff and two others to the extent of share of the plaintiff and for delivery of possession or in the alternative for recovery of Rs. 1,07,811/- with future interest @ 12% per annum and for costs of the suit. The plaintiffs case is that the first defendant was the absolute owner of the property mentioned in the schedule to the plaint. He agreed to sell the property mentioned in 'A' schedule to the plaintiff on 16.03.1985 in favour of the plaintiff, Dasari Anjaneyulu and Chinna Nagaraju @ Rs. 19,000/- per cent. The total extent of 'A' schedule property is Acs. 0.25 cents situated in Survey No. 524-IB of Dharmavaram Town, Ananthapur District. The purchasers agreed to purchase 1/3rd share of the said property and the first defendant agreed to sell the same. On the date of agreement of sale, the first defendant received a sum of Rs. 1,00,000/- out of which, an amount of Rs. 33,334/- was paid by the plaintiff towards advance money and for execution of agreement of sale in favour of the plaintiff and two others. The plaintiff paid a further amount of Rs. 50,000/- on 12.08.1985 to the first defendant for his share of balance consideration. The same was endorsed on the photostat copy of the agreement of sale given to the plaintiff. The plaintiff further stated that he was always ready and willing to perform his part of the contract but the first defendant was evading to perform his part of the contract on some or other ground stating that there were some family disputes. The plaintiff also learnt that one Govinda Chowdary filed a suit alleging that he was having share in the family properties of the defendants and the said suit was pending on the file of the Subordinate Judge, Ananthapur, wherein he obtained a temporary injunction in respect of the plaint schedule property. Though, in the agreement, it was stated that the balance consideration had to be paid on or before 30.06.1985, it was agreed that time was not the essence of the contract. The first defendant already executed a regular sale deed in respect of 2/3rd share of the plaint 'A' schedule property but the possession of the same was not delivered to the purchasers, in whose favour the agreement was executed along with the plaintiff. Though the plaintiff made a number of demands to accept the balance sale consideration and execute a regular sale deed, followed by a registered notice, the sale deed was not executed and the notices were also not received by the first defendant. The plaintiff sought for repayment of the amount of Rs. 88,334/- received by the first defendant in case the Court was not inclined to order specific performance, by calculating interest @ 12% per annum from 16.03.1985 to 12.08.1985 on Rs. 33,334/- and from 12.08.1985 to 14.03.1988 and arriving at an amount of Rs. 1,07,811. Accordingly, he sought for specific performance of agreement of sale dated 16.03.1985 and for consequential delivery of possession or in the alternative, to pass a decree for a sum of Rs. 1,07,811/- with future interest @ 12% per annum.
2. The first defendant filed a written statement admitting the execution of agreement of sale dated 16.03.1985, in favour of the plaintiff and two others @ Rs. 19,000/- per cent. It was also admitted that an amount of Rs. 1,00,000/- was received as advance amount, but it was stated that the said amount was paid only by Dasari Anjaneyulu and Chinna Nagaraju and the plaintiff never contributed any amount towards advance amount paid. After execution of the agreement, the other two vendees paid a sum of Rs. 50,000/- each and the plaintiff also paid a sum of Rs. 50,000/- and got an endorsem
