JUDGMENT:

1. The Appeal, under Section 96 of the Code of the Civil Procedure, is filed by the appellant/defendant challenging the decree and Judgment dated 04.03.2009 in O.S. No.147 of 2004 passed by the learned V Addi-

tional Senior Civil Judge, Guntur (for short, ‘trial court’).

2. The respondent is the plaintiff, who filed the suit in O.S.No.147 of 2004 seeking Specific Performance of an agreement of sale dated 14.09.2003 or the alternative for a decree for Rs.9,33,200/- together with interest @ 24% p.a.

3. The parties will, hereinafter, be referred to as arrayed before the trial Court.

4. The plaintiff’s case, as can be seen from the material averments in the plaint, is as follows:

Defendant offered to sell the plaint schedule property to the ex-

tent of 2333 sq. yards for a total consideration of Rs.9,33,200/- @ Rs.400/- per sq. yard. The plaintiff showed its willingness to purchase the plaint schedule property. On 14.09.2003, the defendant executed a sale agreement in favour of plaintiff for the consideration of Rs.9,33,200/-. At the time of execution of the sale agreement, the plaintiff paid an amount of Rs.50,000/- by way of a cheque drawn on ICICI Bank dated 14.09.2003 and Rs.3,200/- cash as an advance. The defendant has acknowledged and endorsed the same in the agreement. As per the agreement of sale dated

14.09.2003, the plaintiff was required to pay the remaining balance of sale consideration of Rs.8,80,000/- in two installments, i.e., at Rs.3,00,000/- on or before 31.12.2003 and Rs.5,80,000/- on or before 28.02.2004 with the defendant obligated to register the property in the plaintiff's name upon receiving the full payment. On 27.12.2003, the plaintiff paid a sum of Rs.1,00,000/- by way of cash and Rs.2,00,000/- by way of Cheque bearing No.244567 drawn on HDFC Bank, Vijayawada, dated 27.12.2003 which were also endorsed on the reverse side of the agreement. However, despite plaintiff's efforts to complete the transaction, the defendant delayed the process, and there were indications that the defendant was attempting to sell the property to third parties. The plaintiff published a notice in a newspaper on 05.05.2004, but the defendant still failed to register the sale deed. As a result, the plaintiff had no choice but to file the present suit.

5. (a) The defendant filed a written statement contending inter-alia that defendant did not execute the suit agreement of sale or the endorsement said to be on the reverse of it. The defendant is the absolute owner of the suit property, and there was an agreement of sale on hundred rupees stamp paper dated 14.09.2003 in favour of V.Lakshmi Prasad against which Rs.50,000/- was paid by way of Cheque and the transaction was @ Rs.500/- per sq. yard. However, by the end of the month, the said Lakshmi Prasad expressed his inability to proceed further with the transaction; ac- cordingly, cancellation endorsement was made on the reverse of the stamped agreement, signed by the defendant and Lakshmi Prasad on 30.09.2003. The defendant refunded Rs.50,000/- vide cheque No.294826 drawn on ICICI Bank. The said Lakshmi Prasad requested a cash payment instead of issuing a cheque. Accordingly, the Cheque was cancelled. The defendant paid Rs.50,000/- in cash to him. It was endorsed on the reverse of the Cheque. The said Cheque was written by the scribe of the stamp agreement of sale Sri Shaik Mastan of Pedakakani. The cancelled stamp agreement was entrusted to Lakshmi Prasad.

(b) In another transaction between the defendant and Lakshmi Prasad, in which Lakshmi Prasad borrowed Rs.2,50,000/- and repaid Rs.2,00,000/- vide cheque No.244567 HDFC Bank on 27.12.2003 and promised to pay the balance of Rs.50,000/- and interest of Rs.25,000/- by 28.02.2004. But he did not repay the amount. Accordingly, the defendant addressed a letter on 01.03.2004 demanding Rs.75,000/- from the plaintiff. The said amount is still due. The Cheque from HDFC Bank has nothing to do with the al- leged suit transaction. The Cheque d