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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
Subba Reddy Satti, J.
Gampala Naga Raju – Petitioner
Versus
Shaik Nazeerunnisa – Respondent
Second Appeal No.562 of 2018
Decided On : 01-04-2022
Specific Relief Act, 1963 - Section 17 – Suit for performance of agreement of sale - Decreed – Second Appeal - Plaintiff filed suit seeking specific performance of agreement of sale or alternatively for refund of advance sale consideration with interest and costs etc - In plaint, it was contended inter alia that defendants 1 and 2 entered into a contract of sale agreeing to sell plaint schedule property on bill contract rate by receiving advance sale consideration that as per terms of agreement of sale, balance sale consideration is to be paid by plaintiff within 30 days and thereafter, defendants have to execute registered sale deed either in favour of plaintiff or his nominees; that if plaintiff fails to pay balance consideration within stipulated time of 30 days, defendants are entitled to interest @24% p.a. on balance sale consideration; that plaintiff is always ready and willing to perform his part of contract, but defendants failed to perform their part of contract - Held, Trial Court partly decreed suit by granting relief of refund of amount with interest - First appellate Court, independently considered material available on record, both oral and documentary and dismissed the appeal vide judgment and decree - Findings of fact recorded by Courts below are neither perverse nor contrary to evidence available on record, which warrants no interference of this Court under Section 100 of CPC - Though it was contended execution of sale agreement is admitted by D1 and D2, since D3 and D4 are also having share in suit schedule property unless D3 and D4 are consented to alienate their share in schedule property agreement of sale do not bind them - In fact, a careful consideration of evidence on record manifests that plaintiff is also aware of share of D3 and D4. Evidence of P.W.2 and P.W.3 also makes it clear about interest of D3 and D4 - Appeal dismissed.
JUDGMENT:
The plaintiff is the appellant in the above second appeal. The present second appeal is filed against the judgment and decree dated 29.11.2017 in A.S.No.14 of 2015 on the file of XI Additional District and Sessions Judge, Tenali, confirming the judgment and decree dated 05.12.2014 in O.S.No.259 of 2011 on the file of Principal Senior Civil Judge, Tenali.
2. For the sake of convenience, the parties shall be referred to as they are arrayed in the O.S.No.259 of 2011.
3. The plaintiff filed the suit seeking specific performance of agreement of sale dated 23.07.2011 or alternatively for refund of advance sale consideration of Rs.90,000/- with interest and costs etc. In the plaint, it was contended inter alia that defendants 1 and 2 entered into a contract of sale dated 23.07.2011 agreeing to sell the plaint schedule property on bill contract rate of Rs.4,10,000/- by receiving advance sale consideration of Rs.90,000/-; that as per the terms of agreement of sale, balance sale consideration is to be paid by the plaintiff within 30 days and thereafter, defendants 1 and 2 have to execute registered sale deed either in favour of plaintiff or his nominees; that if the plaintiff fails to pay balance consideration within the stipulated time of 30 days, defendants 1 and 2 are entitled to interest @24% p.a. on balance sale consideration; that the plaintiff is always ready and willing to perform his part of contract, but defendants 1 and 2 failed to perform their part of contract; that plaintiff got issued legal notice dated 02.08.2011 calling upon the defendants 1 and 2 to execute sale deed by receiving balance sale consideration; that defendants 3 and 4, being daughters of 1st defendant and sisters of 2nd defendant, got issued a reply notice dated 11.08.2011; that defendants 1 and 2 also got issued a reply notice dated 19.08.2011, wherein it was stated that they alone cannot sell the entire schedule property and ready to return the amount of Rs.90,000/- and further requested the plaintiff to return the agreement amount; that the terms of agreement of sale dated 23.07.2011 are binding on defendants 3 and 4 and hence, filed the suit.
4. Defendants 1 and 2 filed written statement and contended inter-alia that they informed even before the execution of agreement of sale about the share of defendants 3 and 4 in the schedule property, however, defendants 3 and 4 did not agree to sell their share; that defendants 1 and 2 are ready to return the advance of Rs.90,000/- and in fact, the same was informed through legal notice dated 19.08.2011 and prayed to dismiss the suit.
5. Defendants 3 and 4 filed written statement and contended that the plaint schedule property belonged to their father Shaik Namruddin and after his death, all the defendants succeeded to the property; that defendants 1 and 2 have no exclusive right to alienate the schedule property and prayed the Court to dismiss the suit.
6. During the course of trial, plaintiff examined himself as P.W.1, got examined P.Ws.2 and 3 and Exs.A-1 to A-11 were marked. On behalf of defendants, 2nd defendant examined himself as D.W.1, 4th defendant examined herself as D.W.2 and Exs.B-1 to B-6 were marked.
7. The trial Court on consideration of oral and documentary evidence vide judgment dated 05.12.2014 granted alternative relief of refund of Rs.90,000/- with interest @ 24% p.a. from 23.07.2011 till the date of filing of suit and subsequent interest @12% p.a. from the date of suit till the date of decree and thereafter with interest @6% p.a. till realization against defendants 1 and 2. Suit claim against defendants 3 and 4 was dismissed without costs.
8. Aggrieved by the said judgment and decree, the plaintiff filed A.S.No.14 of 2015 on the file of XI Additional District and Sessions Judge, Tenali. The first appellate Court, being final fact finding Court, after framing necessary points for determination, dismissed the appeal vide judgment dated 29.11.2017. Aggrieved by the said judgment and decree, th
SupremeToday
Agreement of sale is unenforceable where defendants had no absolute right and title over suit schedule property to sell the same and plaintiff was aware of same.
In specific performance cases, mutual obligations must be met; time is not of essence if one party defaults, necessitating performance from both sides.
The continuous readiness and willingness of the plaintiff to perform her part of the contract is a condition precedent to grant the relief of specific performance.
The plaintiff must demonstrate continuous readiness and willingness, including financial capacity, to qualify for specific performance under Section 16(c) of the Specific Relief Act.
The central legal point established in the judgment is that a party seeking specific performance must demonstrate readiness and willingness to perform the contract within the stipulated period, and a....
Specific performance of a contract involving joint family properties requires consent from all co-sharers; failure to implead necessary parties renders the agreement unenforceable.
The plaintiff must prove readiness and willingness to perform a contract under Section 16(c) of the Specific Relief Act, and failure to do so negates entitlement to specific performance.
The deceased plaintiff's failure to prove readiness and willingness to perform the contract and the lack of evidence to support the claim led to the setting aside of the lower courts' decisions.
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