Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 45374538 OF 2017
BEEMANENI MAHA LAKSHMI …APPELLANT
VERSUS
GANGUMALLA APPA RAO
(SINCE DEAD) BY LRS. ...RESPONDENTS
J U D G M E N T
M.R. SHAH, J.
Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court of Judicature
Andhra Pradesh at Hyderabad dated 6.8.2007 in Appeal Suit No.
2638 of 1993 and CMP No. 7692 of 2003, by which the High
Signature Not Verified
Court has dismissed the said appeal preferred by the appellant
Digitally signed by
VISHAL ANAND
Date: 2019.05.10
11:16:15 IST
Reason:
herein – the original defendant and has confirmed the judgment
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and decree of specific performance passed by the learned trial
Court, the original defendant has preferred the present appeals.
2. The facts leading to the present appeals in nutshell are
as under:
That the appellant herein – the original defendant
purchased the suit schedule property admeasuring 17 acres 39
cents situated at village Billawaka, Thimmapuram Post,
Kakinada Taluk, East Godavari District, Andhra Pradesh by a
registered sale deed dated 6.10.1971. The land in question was
subjected to the provisions of the Andhra Pradesh Land Reforms
(Ceiling on Agricultural Holdings) Act, 1973, which came into
force in the year 1975. That vide order dated 20.11.1976, the
Land Reforms Tribunal held that the appellant is holding an
excess land to the extent of 0.0013 cents. It appears that a
revision application was pending/proceedings before the High
Court at the instance of the predecessor in title of the suit
property. That the appellant herein executed an agreement to sell
in favour of the respondent herein – the original plaintiff vide
agreement to sell dated 30.12.1985 and agreed to sell the said
property (suit property) for a sale consideration of Rs.2,45,000/.
The respondent herein – the original plaintiff – purchaser paid
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the part sale consideration of Rs.55,000/. The remaining
balance amount was required to be paid within three months.
According to the plaintiff, it was also agreed that the appellant
has to execute the sale deed after measuring the suit land for
arriving at the actual sale consideration payable. According to
the plaintiff, time and again, he demanded the original sale deed
in favour of the appellant dated 6.10.1971 as well as the final
order passed by the Tribunal/final certificate issued by the
Agricultural Land Tribunal and also requested the vendor to
measure the land and execute the sale deed. However, as the
vendor – the appellant did not execute the sale deed, though
according to the plaintiff he was ready and willing to pay the
balance sale consideration and perform his part of contract,
nothing further was done and therefore the purchaser – the
plaintiff served a legal notice upon the appellant dated 6.4.1987.
The said notice was replied by the defendant vide reply dated
14.4.1987. That thereafter the respondent herein – the original
plaintiff instituted Original Suit No.16/1993 in the Court of the
Subordinate Judge, Pithapuram praying for a decree for specific
performance of the agreement to sell dated 30.12.1985 by
directing the defendant to execute the sale deed in favour of the
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plaintiff by producing the original title deed and nonsurplus
order in the land ceiling case of the defendant and her vendor. In
the alternative, it was prayed to pass a decree for a sum of
Rs.75,169.75 with interest from 30.12.1985 on Rs.55,000/.
2.1 The suit was resisted by the defendant by filing a
written statement. It was the case on behalf of the defendant
that the plaintiff was not ready and willing to perform his part of
contract as he was not having balance of sale consideration and
therefore, he could not pay the amount and obtain the sale deed.
It was also the case on behalf of the defendant that she
purchased the land in question from one Y. Somayya Choudary
and the land thereafter held in favour of the defendant and the
Land Tribunal held that the said transaction between the
defendant and the Y. Somayya Choudary was a bona fide
transaction. According to the defendant, the same had attained
finality. It was the case on behalf of the defendant that the
plaintiff was aware of the aforesaid transaction and even the
order passed by the Land Tribunal. It was also the case on
behalf of the defendant that before entering into the agreement
itself, in the beginning, the defendant informed the plaintiff that
the sale deed is filed in the land ceiling proceedings of Y.
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Somayya Choudary and after termination of the proceedings the
document will be obtained and delivered to the plaintiff. It was
also the case on behalf of the defendant that the copies of the
land ceiling orders were handed over to the plaintiff and having
satisfied the plaintiff entered into the agreement to sell.
2.2 On the basis of the pleadings of the parties, the
learned Trial Court framed the following issues:
(1) Whether the plaintiff is ready and willing to
perform his part of the contract and is entitled to seek
for specific performance of the suit agreement of sale?
(2) Whether the plaintiff is entitled for the alternative
relief of refund of advance of sale consideration with
interest as claimed?
(3) To what relief?
2.3 The plaintiff examined himself as PW1 and marked
Exhibits A1 to A4. The defendant examined 5 witnesses
including herself as DW1 and marked Exhibit X1 through DW3.
It appears that during the course of trial, as it was the case on
behalf of the defendant that the plaintiff had no money to pay the
balance sale consideration and therefore the learned trial Court
directed the plaintiff to deposit the balance of the sale
consideration into the Court to verify his bona fides. That the
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plaintiff deposited the balance sale consideration within the
extended time granted to him on a petition.
3. That thereafter on appreciation of evidence and
considering the entire material on record including the deposition
of DW1 and even reply to the notice by DW1, the learned trial
Court decreed the suit by directing the defendant to execute a
sale deed in favour of the plaintiff. While decreeing the suit, the
learned trial Court specifically observed and held that it was the
defendant who committed the breach of contract. On
appreciation of evidence, the learned trial Court also found that
the plaintiff was always ready and willing to perform his part of
the contract and it was the defendant who committed the breach
of contract and therefore the plaintiff is entitled for the relief of
specific performance.
4. Feeling aggrieved and dissatisfied with the judgment
and decree passed by the learned trial Court, the defendant
preferred appeal before the High Court. The defendant – the
appellant herein also filed an application for additional evidence
under Order 41 Rule 27 of the CPC. That the High Court allowed
the said application for additional evidence partly. That
thereafter on appreciation/reappreciation of the entire evidence
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on record, by the impugned judgment and order, the High Court
has dismissed the appeal preferred by the appellant herein – the
original defendant and has confirmed the judgment and decree of
specific performance of the agreement to sell dated 30.12.1985
passed by the learned trial Court.
5. Challenging the impugned judgment and order passed
by the High Court in dismissing the appeal and confirming the
judgment and decree of specific performance passed by the
learned trial Court and in partly rejecting the application for
additional evidence under Order 41 Rule 27 of the CPC, the
original defendant – the appellant before the High Court has
preferred the present appeals.
6. Shri Basant R, learned Senior Advocate has appeared
on behalf of the appellant – the original defendant and Shri
Pramod Swarup, learned Senior Advocate has appeared on behalf
of the respondent – the original plaintiff (since dead and now
represented by his legal heirs).
6.1 Shri Basant R, learned Senior Advocate appearing on
behalf of the appellant has vehemently submitted that in the facts
and circumstances of the case, both the courts below have
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materially erred in decreeing the suit and passing the decree of
specific performance of the agreement to sell dated 30.12.1985.
6.2 It is further submitted by the learned Senior Advocate
appearing on behalf of the appellant that both the courts below
have materially erred in holding that it was the defendant who
committed the breach of the terms of the contract/agreement to
sell.
6.3 It is further submitted by the learned Senior Advocate
appearing on behalf of the appellant that it was the case on
behalf of the defendant from the very beginning that the plaintiff
had no capacity to pay the balance sale consideration. It is
submitted that even the plaintiff could not deposit the balance
sale consideration at the first instance as directed by the learned
trial Court by which the learned trial Court directed the plaintiff
to deposit the balance sale consideration to show his bonafides.
It is submitted that in fact the plaintiff could deposit the balance
sale consideration within the extended period of time out of the
amount received from the property sold by him in the year 1993.
It is submitted that therefore when the plaintiff was not having
sufficient fund to pay the balance sale consideration, both the
courts below have materially erred in passing the decree of
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specific performance of the agreement to sell dated 30.12.1985.
It is submitted that as such the plaintiff in the crossexamination
has specifically admitted that he paid the balance sale
consideration as directed by the learned trial Court from the
amount received by him on sale of the property in the year 1993.
6.4 It is further submitted by the learned Senior Advocate
appearing on behalf of the appellant that in the agreement to sell
there was no condition that the sale deed to be executed only
after the property is measured. It is vehemently submitted by the
learned Senior Advocate appearing on behalf of the appellant that
both the courts below have materially erred in giving much
importance to the admission of defendant no.1 who is an illiterate
widow that before execution of the sale deed the land was to be
measured.
6.5 It is further submitted by the learned Senior Advocate
appearing on behalf of the appellant that both the courts below
have materially erred in not appreciating the fact that prior to the
entering into the agreement of sale, the plaintiff was aware of the
defendant having purchased the property from Y. Somayya
Choudary and also was aware of the land ceiling proceedings. It
is submitted that even before entering into the agreement itself in
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the beginning the defendant informed the plaintiff that the sale
deed is filed in the land ceiling proceedings of Y. Somayya
Choudary and after termination of the proceedings the document
will be obtained and delivered to the plaintiff. It is submitted that
in the reply to the notice by the defendant, the plaintiff was
specifically informed/told that the sale deed is in the court file of
the land ceiling proceedings of Y. Somayya Choudary and the
plaintiff can obtain a copy of the same from the concerned court.
It is submitted that therefore both the courts below have
materially erred in holding that it was the defendant who
committed the breach of the terms of the contract/agreement to
sell. It is further submitted that both the courts below have
materially erred in holding that the plaintiff was always ready and
willing to perform his part of the contract/agreement to sell.
6.6 It is further submitted by the learned Senior Advocate
appearing on behalf of the appellant that even otherwise decree
for specific performance of a contract is a discretionary relief and
in the facts and circumstances of the case, more particularly
when the plaintiff did not come with clean hands, as though was
not in possession but stated that he is in possession, both the
courts below ought not to have granted the discretionary relief
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and ought not to have passed a decree for specific performance of
the agreement/agreement to sell. In support of his above
submission, Shri Basant R, learned Senior Advocate has heavily
relied upon the decision of this Court in the case of
K.S.
Vidyanadam v. Vairavan, reported in (1997) 3 SCC 1 .
6.7 It is further submitted by the learned Senior Advocate
appearing on behalf of the appellant that even the High Court has
materially erred in dismissing the application for additional
evidence under Order 41 Rule 27 of the CPC by not permitting
the appellant to produce the xerox copies of the certified copies of
the agreement of sale dated 30.08.1993 executed by the plaintiff
in favour of one Vegisina Venkata Satya Ananda Gajapathi Raju
and the deposition of the plaintiff in O.S. No. 236 of 1994 on the
file of the Principal Senior Civil Judge, Kakinada. It is submitted
that if both the aforesaid documents would have been permitted
to produce on record as an additional evidence, it can be seen
that the plaintiff was not having sufficient fund to pay the
balance sale consideration.
6.8 Shri Basant R, learned Senior Advocate appearing on
behalf of the appellant has submitted that even otherwise in the
facts and circumstances of the case, the courts below have
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materially erred in passing the decree for specific performance of
the contract for sale of immovable property which was after
number of years and would cause undue hardship to the
defendant. It is submitted that in the present case the plaintiff
waited till the period of limitation to come to an end and even did
not file the suit for specific performance immediately. It is
submitted that therefore the grant of decree for specific
performance in the circumstances would amount to an
instrument of oppression giving unfair advantage to the vendee.
In support of his above submission, learned Senior Advocate has
heavily relied upon the decision of this Court in the case of
P.R.Deb and Associates v. Sunanda Roy, reported in (1996) 4 SCC
423 .
6.9 It is further submitted by the learned Senior Advocate
appearing on behalf of the appellant that in the present case in
the agreement to sell, it was specifically mentioned that the
balance sale consideration was to be paid within a period of three
months from the date of execution of the agreement to sell. It is
submitted that admittedly the plaintiff did not pay the balance
sale consideration within three months from the date of execution
of the agreement to sell and therefore the said failure disentitled
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the plaintiff to obtain decree of specific performance. In support
of his above submission, learned Senior Advocate has heavily
relied upon the decision of this Court in the case of
.
Padmakumari v. Dasayyan, reported in (2015) 8 SCC 695
6.10. Making the above submissions and relying upon the
above decisions, it is prayed to allow the present appeals.
7. The present appeals are vehemently opposed by Shri
Pramod Swarup, learned Senior Advocate appearing on behalf of
the respondent – the original plaintiff.
7.1 It is submitted by the learned Senior Advocate
appearing on behalf of the respondent that in the present case
there are concurrent findings recorded by both the courts below
that there was a failure on the part of the defendant – vendor to
perform her part of the terms of the contract and that the plaintiff
was always ready and willing to pay the balance sale
consideration. It is submitted that the aforesaid findings of fact
recorded by the learned trial Court as well as the High Court are
on appreciation of evidence and therefore the same may not be
interfered with by this Court. It is submitted that in view of the
aforesaid findings of fact recorded by the trial Court, confirmed by
the High Court, it cannot be said that the learned trial Court and
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the High Court committed an error in passing a decree for specific
performance.
7.2 It is vehemently submitted by the learned Senior
Advocate appearing on behalf of the respondent that in fact the
defendant in reply to the notice – A3 as well as in her deposition
has specifically admitted that the land was to be measured and
only thereafter the sale deed was to be executed. It is submitted
that as admitted the land was not measured and therefore there
was no occasion on the part of the plaintiff to pay the balance
sale consideration at the relevant time. It is submitted that even
the defendant – vendor did not give the sale deed in her favour
executed by Y. Somayya Choudary. It is submitted that Y.
Somayya Choudary was the husband of the sister of the
defendant and only with a view to save the property from the
Agricultural Land Ceiling Act, he executed the sale deed in favour
of the defendant. It is submitted that the plaintiff insisted for the
final certificate issued by the Land Tribunal so as to see that
there is a clear title in favour of the defendant – vendor. It is
submitted that there was a necessity to have the land measured.
It is submitted that therefore when the vendor neither gave the
sale deed in her favour nor gave the final certificate/order issued
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by the Land Tribunal nor even got the land measured, there was
a cloud on the title which was required to be removed by the
defendant as vendor, before the plaintiff makes the payment of
balance sale consideration. It is submitted that as the defendant –
vendor failed to clear the cloud by not giving the copy of the sale
deed in her favour; by not producing the final certificate/order
issued by the Land Tribunal and by not measuring the land till
then there was no question of any payment of balance sale
consideration by the plaintiff. It is submitted that from the very
beginning, it was the case on behalf of the plaintiff that the
plaintiff was always ready and willing to pay the balance sale
consideration, subject to the defendant’s fulfilling her part of the
contract.
7.3 It is further submitted by the learned Senior Advocate
appearing on behalf of the respondent that unless and until the
defendant – vendor complied with her terms and conditions of the
agreement by fulfilling her part of the contract, the plaintiff was
not required to deposit any amount either in the bank or with the
Court. It is submitted that as soon as the learned trial Court
directed to deposit, the plaintiff deposited the balance sale
consideration to show his bonafides. It is submitted that merely
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because in the year 1993 when the amount was deposited the
plaintiff might have deposited the said amount out of the fund
received by selling the property in the year 1993 by that itself
cannot be said that prior thereto the plaintiff was unable to pay
the balance sale consideration.
7.4 Making the above submissions and relying upon the
decision of this Court in the case of Narinderjit Singh v. North Star
, it is
Estate Promoters Limited, reported in AIR 2012 SC 2035
prayed to dismiss the present appeals.
8. We have heard the learned Senior Counsel for the
respective parties at length.
9. We have perused and considered in depth the
impugned judgment and order passed by the High Court as well
as the judgment and decree passed by the learned trial Court. At
the outset, it is required to be noted that as such there are
concurrent findings of fact by both, the learned trial Court as well
as the High Court that it was the appellant – vendor who did not
perform her part of the contract. The learned trial Court also
observed and held that as the respondent – vendee deposited into
Court the amount payable by him as per Ex. A1, which was as
per the order of the trial Court, and therefore his failure to
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“demonstrate” that he was having sufficient money with him to
pay the balance sale consideration under Ex. A1 by the date of
his evidence is not much of consequence and the contention of
the appellant – vendor that the respondent – vendee was not
ready and willing to perform his part of the contract cannot be
believed or accepted. The aforesaid finding has been confirmed
by the High Court.
10. It is true that in Ex.A1, it was not specifically
mentioned that vendor has to first get the land measured and
only thereafter the vendee has to pay the balance sale
consideration. It is also true that as per Ex. A1 – agreement to
sell the vendee was required to deposit the balance sale
consideration within a period of three months from the date of
execution of the agreement. However, at the same time, it was
the specific case on behalf of the plaintiff – vendee that it was also
agreed that the vendor has to execute the sale deed after
measuring the suit land. The aforesaid is as such admitted by
the vendor – the defendant, not only in reply to the notice dated
14.04.1987 but as well in her deposition. In the reply to the
notice on 14.04.1987, the defendant has specifically admitted
that the sale deed should be executed after measuring he land
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and after arriving at the consideration for the land that was
arrived at on measurement. Even in the crossexamination, the
defendant – vendor who has been examined as DW1 has
specifically admitted that at the time of execution of the
agreement, it was settled to get the land measured and to arrive
at the consideration and to deliver the original sale deed. It has
also come on record that no measurement was carried out at any
point of time, more particularly after the execution of the
agreement to sell. Thus, till the land was measured and the final
amount was arrived at, there was no obligation on the part of the
vendee – the plaintiff to deposit/pay the balance sale
consideration. It is required to be considered along with the fact
that all throughout the vendee was insisting that the original sale
deed in favour of the vendor be given to the vendee and that the
final certificate issued by the Land Tribunal be shown and given
to the vendee. It is an admitted position that copy of the sale
deed was not given to the vendee. However, it was the case on
behalf of the defendant – vendor that the plaintiff was informed
that the original sale deed is produced in the court in the
proceedings initiated by Y.Somayya Choudary – predecessor in
title and therefore the vendee may get the copy from that court.
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Nothing is on record on which date the vendor delivered to the
vendee the land ceiling papers. At this stage, it is required to be
noted that the land in question was subjected to the land ceiling
proceedings. It has come on record that the vendor – defendant
purchased the suit property by sale deed dated 6.10.1971 from
one Y. Somayya Choudary – the husband of the sister of the
vendor. From the evidence, it appears that Y. Somayya Choudary
was also claiming the ownership over the land in question.
Dispute was that Y. Somayya Choudary executed the sale deed in
favour of the defendant – vendor with a view to see that the land
is not declared as excess land under the Land Ceiling Act. It has
come on record that the Land Tribunal held in favour of the
vendor and the transaction in her favour was found to be
bonafide. However, the said Y. Somayya Choudary was also
continued to claim the ownership which was not accepted by the
land Tribunal. That is why, the vendee – the plaintiff was insisting
to deliver the land ceiling papers. The conduct on the part of the
plaintiff – vendee to insist for the original sale deed in favour of
the vendor and the delivery of the land ceiling papers was
natural. Any prudent person who was to purchase the property
would definitely insist for the title papers, so as to be satisfied
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that the title is clear. Before the learned trial Court, the
defendant did not produce any final order/certificate issued by
the Land Tribunal, which came to be produced for the first time
before the High Court along with the application for additional
evidence under Order 41 Rule 27 of the CPC. The High Court
permitted the appellant to produce the proceedings of the Land
Reforms Tribunal dated 20.11.1976. The same came to be
considered by the High Court and observed that Ex. B1 is a xerox
copy of a certified copy of the order dated 20.11.1976 of the Land
Reforms Tribunal. The High Court has also observed that the
relevant portion of the certified copy (Ex. B1) which contain the
details relating to the date when the copy application was filed;
when the stamps were called for and when the copy was made
ready are not available in Ex. B1. The High Court has also
observed that if they are available, the date on which the copy
application was made would have known. That on appreciation
of evidence and considering the document Ex. B1, the High Court
has specifically observed that it cannot positively be said that the
original of Ex. B1 was available with the vendor by the date of Ex.
A1. Therefore, the High Court observed that the contention of the
appellant that the respondent was shown the document relating
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to land ceiling clearance at the time of Ex. A1 cannot be believed
or accepted. The aforesaid is the finding recorded on appreciation
of evidence. Therefore, the learned trial Court and the High Court
have specifically observed and held that the buyer insisted on the
seller producing all the documents necessary for making out a
complete chain of his/her title.
Therefore, on conjoint reading of Ex. A1 and the reply
to the notice by the defendant dated 14.04.1987 and the cross
examination of the defendant – vendor, both the learned trial
Court and the High Court have rightly observed and held that it
was the appellant – vendor that did not perform her part of the
contract. Once, the finding is recorded that it was the appellant –
vendor that did not perform her part of the contract, thereafter as
rightly observed by the High Court, the failure on the part of the
vendee to “demonstrate” that he was having sufficient money with
him to pay the balance sale consideration under Ex. A1 by the
date of his evidence is not much of consequence. Even otherwise,
it is required to be noted that the plaintiff deposited the entire
balance sale consideration as directed by the learned trial Court
within the extended period of time. It is required to be noted that
as it was submitted on behalf of the defendant before the learned
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trial Court that the plaintiff does not have any capacity to pay the
balance sale consideration, to test his bonafides the learned trial
Court directed the plaintiff to deposit the balance sale
consideration which the plaintiff did deposit. Merely because the
said amount was deposited out of the fund/amount received by
him by selling the property in the year 1993, by that itself cannot
be presumed and/or inferred that at the time of execution of the
agreement to sell and/or thereafter even at the time of the notice,
the plaintiff was not having sufficient fund to pay the balance sale
consideration. It is required to be noted that an agreement to sell
is dated 30.12.1985 and the plaintiff was directed to deposit the
amount in the year 1993. It is not expected from the plaintiff that
he would continue to deposit the same with the bank all these
years. What is required to be considered is as and when he is
called upon to make the deposit, he has deposited the amount to
show his bonafides or not? Therefore, as such, both the learned
trial Court as well as the High Court have rightly passed a decree
for specific performance.
11. Now so far as the submission on behalf of the appellant
that if the decree for specific performance of the contract is
passed after number of years, it would cause undue hardship to
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the defendant – vendor and the reliance placed upon the decision
of this Court in the case of P.R.Deb (supra) is concerned, it is
required to be noted that in the written statement the defendant
has not pleaded any hardship to be caused if the decree of
specific performance of the contract is passed against the
defendant – vendor. At this stage, the decision of this Court in
the case of A. Maria Angelena v. A.G. Balkis Bee, reported in AIR
2002 SC 2385 is required to be referred to. In the aforesaid case,
the vendor sought to raise the plea of hardship for the first time
before this Court and this Court did not permit the vendor to
raise such a plea of hardship by observing that as no plea as to
hardship if relief for specific performance is granted was raised by
the defendant – vendor in written statement nor any issue was
framed that the plaintiff – purchaser could be compensated in
terms of the money in lieu of decree for specific performance,
such plea cannot be entertained for the first time in appeal by
way of SLP, more so, when there are concurrent findings that the
plaintiff was ready and willing to perform his part of the contract
has been recorded by the lower courts. Therefore, the plea raised
on behalf of the vendor on hardship cannot be permitted to be
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raised now, more particularly when no such plea was
raised/taken in the written statement.
12. Now so far as the reliance placed upon the decisions of
this Court by the learned Senior Advocate appearing on behalf of
the appellant, referred to hereinabove, are concerned, none of the
decisions shall be applicable to the facts of the case on hand and
more particularly the findings recorded by the learned trial Court,
confirmed by the High Court, which we also confirm.
13. In view of the above and for the reasons stated above,
the present appeals fail and deserve to be dismissed and are
accordingly dismissed. We confirm the judgment and decree
passed by the learned trial Court for specific performance of the
agreement to sell dated 30.12.1985, confirmed by the High Court.
However, in the facts and circumstances of the case, there shall
be no order as to costs.
…………………………………….J.
[L. NAGESWARA RAO]
NEW DELHI; ……………………………………J.
MAY 09, 2019. [M.R. SHAH]
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