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HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
A.V. Sesha Sai, J.
Raghupathi Venkata Ratnam Naidu Trust —Appellant
versus
Karri Veera Swami (died),
per L.Rs —Respondent
A.S.No.262 of 2010
Decided on 26.9.2016
For the Appellant:Sri V.L.N.G.K. Murthy, Advocate
For the Respondent:Sri P. Kamalakar and Sri Jitendar Rao, Advocates
IMPORTANT POINTS
(1) Privity of contract between the parties and vendee’s readiness and willingness to perform his part of the agreement for sale are pre-conditions for seeking specific performance of the agreement.
(2) Merely pleading about readiness and willingness to pay the consideration is not enough. It needs to be substantiated by adducing oral and documentary evidence.
Headnote:(a) Specific Relief Act, 1963 – Section 19(e) – Pre-condition - Privity of contract – Section 19 not available in absence of privity of contract between the parties – Exceptions, a beneficiary under a trust created by a contract or a family arrangement - Instantly plaintiff neither proving existence of any privity of contract with the defendants nor adopting procedure contemplated under clause (e) of Section 19 - Held not entitled to specific performance of the suit agreement of sale against the defendants. (Para 8, 9)
(b) Specific Relief Act, 1963 – Section 16(c) – Plaintiff simply pleading that he has always been ready – Not substantiating the same by adducing oral or documentary evidence - Not entitled to any equitable relief of specific performance of agreement of sale. (Para 12, 17)
(c) Specific Relief Act, 1963 – Section 16 – Holder of general power of attorney required to secure lay-out then divide the land into plots and then only enter into agreement to sale – Instantly agreement executed without following the requirement – Agreement held not enforceable. (Para 14)
(d) Specific Relief Act, 1963 – Section 16(c) – Readiness – Plaintiff seeking specific performance of agreement for sale – Held subsequent purchasers can advance contention touching readiness and willingness on the part of plaintiff. (Para 15)
Result: Appeal dismissed.
A.V. Sesha Sai, J.—Plaintiff in O.S.No.298 of 1995 on the file of the Court of the I Additional Senior Civil Judge, Kakinada, East Godavari district is the Appellant in the present Appeal Suit, filed under Section 96 of C.P.C. This Appeal is directed against the judgment and decree dated 15.4.2008 rendered in the said suit.
2. The appellant herein instituted the said O.S.No.298 of 1995 for specific performance of agreement of sale dated 19.8.1989 or in alternative for refund of advance amount with interest and costs. The plaint schedule property is an extent of Ac.6-27 cents in Sy.No.88 of Thimmapuram village, Kakinada Rural Mandal, East Godavari district. Defendants 1 to 26 are the owners of various extents of lands out of the plaint schedule property and Defendant No.27 is their General Power of Attorney holder. The defendants/ respondents resisted the suit by filing written statements. Basing on the pleadings available on record, the learned Senior Civil Judge framed the following issues and additional issue:
(1) Whether the plaintiff is entitled to seek specific performance of the suit agreement of sale against the defendants or in the alternative for refund of the advance amount with interest?
(2) To what relief?
Additional Issue
Whether the suit agreement of sale is binding on Defendant Nos.36 to 38?
3. During the course of trial, on behalf of the plaintiff, P.Ws.1 to 4 were examined and Exs.A1 to A30 were marked and on behalf of the defendants, D.Ws.1 to 3 were examined and Exs.B1 to B39 were marked. The learned Senior Civil Judge, by way of impugned judgment and decree dated 15.4.2008 dismissed the suit for specific performance and ordered refund of advance amount with interest. The said decree reads as under:
(i) that the defendants 2, 6 to 27 and 29 to 38 do pay to the plaintiff trust a sum of Rs.8,61,505/- together with interest @ 12% p.a. from 24.11.1995 the date of suit till the date of decree and thereafter @ 6% p.a. till realization on Rs.4,25,000/- being the amount of advance;
(ii) that a charge be and the same is hereby created on the plaint schedule property till the payment of decreetal amount by D2, D6 to D27 and D29 to D38 to the plaintiff as directed in Clause(i) above;
(iii) that the defendants 2, 6 to 27 and 29 to 38 do pay to the plaintiff a sum of Rs.38,452-00 towards proportionate costs of this suit bearing their own cosrts;
(iv) that the suit for the relief of specific performance of the agreement of sale be and the same is hereby dismissed;
(v) A copy of the plaint schedule hereunto annexed.
4. Heard Sri V.L.N.G.K. Murthy, learned counsel for the Appellant and Sri E.Manohar, learned Senior Counsel and Sri Jitender Rao for Respondents, apart from perusing the material available before the Court.
5. Submissions/contentions of the learned counsel for the Appellant
(1) The judgment and decree rendered by the trial Court are erroneous, contrary to law, weight of evidence and probabilities of the case.
(2) The Court below ought to have decreed the suit for the primary relief in view of Ex.A7 Agreement of Sale dated 19.8.1989 and Exs.A1 to A6 Powers of Attorneys executed by Defendants 1 to 26 in favour of Defendant No.27.
(3) The Court below failed to see that Defendant No.27 executed Ex.A7 Agreement of Sale in favour of S/Sri Darapureddi Dharma Rao and Veerabhadra Rao for the benefit of the Plaintiff Trust and received the amounts also, as such, the Court below ought to have decreed the suit for primary relief.
(4) The Court below failed to see that the plaintiff was always ready and willing to perform its part of contract and the delay, if any, was due to the conduct of the defendants.
(5) The Court below ought to have seen that on receipt of Ex.A14 notice dated 16.12.1992, Defendant No.27 requested time for completion of process of execution of sale deed by making Ex.A11 endorsement dated 18.12.1992.
(6) The Court below ought to have seen that by mistake, the name
