Specific performance refused = refund order for expenditure incurred = agreement of sale executed for the purpose of loan but not for sale = In the instant case, PW-1 was not clear as to when he paid the amount. Ex.A-29 was not in his favour. There is no recital in that document also, about payment of amount. The defendants 1 and 2 categorically stated that they received a sum of Rs. 2 lakhs, as loan, from the respondents, long ago, for their necessity, and paid the same. In case PW-1 wanted to treat the money paid by him, as the consideration for the land, heavy burden rested upon him, to establish the relevant factors. However, he miserably failed, in this front. Further, DW-1 did not derive any right, much less saleable interest, vis--vis the land, by the time, Ex.A-29 was said to have been executed. Hence, the appeal is partly allowed, upholding the decree, to the extent it has denied the specific performance of agreement of sale, but granting the alternative relief of directing refund of a sum of Rs.15,21,096-10 ps. to the plaintiffs 2, 3 and 4, jointly, leaving it open to them to determine their respective shares, subject to the handing over the original sale deed of the suit property to the 1st defendant. The amount shall carry interest @ 10% per annum from the date of the decree, till the date of its realization.
reported/published in http://judis.nic.in/judis_andhra/=9910
THE HON'BLE SRI JUSTICE L .NARASIMHA REDDY
THE HON'BLE SRI JUSTICE K.G.SHANKER
CCCA No.84 of 2010
(Judgment of the Bench delivered by
the Hon'ble Sri Justice L. Narasimha Reddy)
29-04-2013
Sri Krishna Devloor (D.S. Krishna) (died) per LR ...appellants
Vs.
N. Madhavi and others ...Respondents
Counsel for the appellants : Sri B.V. Subbaiah, Sr. Counsel
Counsel for the Respondents : Sri D. Prakash Reddy, Sr. Counsel
<GIST:
>HEAD NOTE:
?Cases referred
NIL
JUDGMENT: (Per the Hon'ble Sri Justice L. Narasimha Reddy)
This appeal is filed against the judgment and decree dated 22-03-2010
passed by the Court of IX Additional Chief Judge
(Fast Track Court), City Civil Court, Hyderabad. For the sake of convenience,
the parties herein are referred to, as arrayed in the suit.
The deceased-1st plaintiff (hereinafter referred to, as 'PW-1') filed the
suit against the defendants for the relief of specific performance of agreement
of sale, in respect of the suit schedule property, a plot of about 1100 sq.
yards in Jubilee Hills, Hyderabad, or, in the alternative, for a decree, for
refund of Rs.15,21,096-10 ps., with interest.
During the pendency of the suit, PW-1 died.
Smt. D. Vasantha Kumari, the 2nd plaintiff, who is said to be the
2nd wife of PW-1, and respondents 3 and 4 herein (plaintiffs 3 and 4 in the
suit), who are his son and daughter, respectively, through his first wife, were
added as legal representatives. This appeal is filed by the 2nd plaintiff.
The facts pleaded in the plaint, in brief, are that the suit schedule plot
was allotted by the Jubilee Hills Cooperative House Building Society (for short
'the Society') in favour of one, Mr.J. Shashidhar, and the original allottee agreed to transfer the plot as well as his membership in the Society, in favour of the1st defendant,
(hereinafter referred to as 'DW-1'). A letter dated
29-06-1991 (Ex.A-1) is said to have been issued by the original allottee, in
favour of DW-1. She, in turn, is said to have agreed to sell the plot to PW-1,
for a consideration of Rs.2,00,000/-, and accordingly, executed an agreement of
sale (Ex.A-29),
on 04-07-1992 in favour of the 2nd plaintiff, as nominee of PW-1 (much before
she came to be brought on record as legal representative). It was also stated
that the execution of agreement of sale was followed by submission of a letter
and affidavit by DW-1, on 10-12-1994.
According to PW-1, the transaction could not be finalized,
on account of certain organizational and administrative problems in the Society.
It was further pleaded that in supercession of an earlier arrangement, DW-1 has
agreed to sell the plot directly to PW-1, and accordingly addressed a letter
dated 10-08-1996 to the society, (Ex.A-31), and filed affidavit on 28-08-1996
(Ex.A-32). PW-1 is also said to have filed his affidavit, Ex.A-33, expressing
his willingness, on the same day.
PW-1 stated that after the uncertainties prevailing in the society
subsided, they were informed that a sale deed would first
be executed in favour of DW-1, and thereafter, she can execute a sale deed in
favour of her purchaser.
PW-1 is said to have arranged for finances, for
payment of a) dues to the Society, b) purchase of stamps, and c) dues of property tax; in all about Rs.15,00,000/-.
A sale deed was executed by the Society in favour of DW-1 on 04-01-2002
(Ex.A-30). Thereafter, PW-1 addressed a letter dated 20-04-2002 (Ex.A-10) to
the 2nd defendant, the husband of DW-1, calling upon him to arrange for
execution of sale deed, in his favour. The 2nd defendant, however, issued a reply dated
04-05-2002 (Ex.A-14), stating that the agreement of sale, executed in the year
1992, in favour of Smt. D. Vasanta Kumari (2nd plaintiff), was just a measure of security for repayment of the amount,borrowed from PW-1. He has also stated that they were ready to pay the amount,
and neither himself, nor his wife intend to sell the plot. This was followed by
a notice/letter dated 04-09-2002 (Ex.A-16), equivalent to Ex.B-19, addressed to the
2nd defendant. It was also pleaded by PW-1 that apart from payment of
registration charges, he paid the property tax, for the plot in question.
Alleging that the defendants 1 and 2 avoided execution of the sale deed, without
there being any valid legal basis, the suit was filed for specific performance
of agreement of sale, or for refund of the amount.
The defendants 1 and 2 opposed the suit, by filing the written-statement.
It was pleaded that DW-1 never intended to transfer the plot, or membership to
anyone. It was stated that they became acquainted with PW-1 through a common
friend, by name, B.S.Srinivasan, PW-2, and when they were in need of money, for
their industry, PW-1 advanced a sum of Rs.2 lakhs, and as a measure of security,
he obtained certain documents and signed blank papers. It was also their case
that DW-1 did not have any title to the plot of land, as on the date of the
alleged agreement, and there is no question of her executing any agreements of
sale, much less sale deeds. It was also stated that even according to the
documents, relied upon by PW-1, no consideration has been paid, and the whole exercise is speculative in nature.
DW-1 further pleaded that the payment of amounts to the Society was made
by PW-1, on his own accord, without any information to her, and in fact, the
letter of authorization (Ex.A-38), to obtain the registered sale deed, was also
fabricated by PW-1. She pleaded that the so-called letter and affidavit, marked
as Exs.A-31 and 32, were fabricated by PW-1, with oblique motive.
It was also her case that any payment made by PW-1, without authorization from
her, does not give rise to any rights to him. According to her, she has made
construction over the plot, and PW-1 did not have any right or interest over the
property in question. She expressed her readiness and willingness to pay the
amount, borrowed by her, from PW-1.
The trial Court dismissed the suit. Hence, this appeal.
Sri B. V. Subbaiah, learned Senior Counsel for the plaintiffs submits that
the trial Court disregarded the consistent oral evidence and voluminous
documentary evidence adduced on behalf of PW-1 and dismissed the suit.
He submits that once DW-1 admitted the factum of
receipt of amount, and the execution of agreement of sale, Ex.A-29, the decree
for specific performance ought to have been passed.
Learned Senior Counsel submits that the transaction in relation of the
allotment of plots by the Society is such that, whenever a party intends to
transfer the plot, he/she is required to file a letter and affidavit to that
effect, and some times by way of precaution, the signatures of the parties are
taken in the office of the Society, once again on the letter and affidavit, and
that in the instant case, the small discrepancy, that was noticed in the two
signatures, on the letter and affidavit, is projected beyond proportion. He
submits that the letter of authorization to receive the registered sale deed
from the office of the Sub-Registrar has also emerged in similar fashion.
Learned Senior Counsel further submits that though the initial agreement
of sale was in favour of the 2nd plaintiff, she nominated PW-1, as the
purchaser, and DW-1 ought to have executed the sale deed. He further submits
that even if there is any defect or deficiency in the title to the property,
when the agreement of sale was executed, the obligation to execute the sale deed
becomes enforceable, once the vendor acquires absolute title for the property.
It is also pleaded that though there is no proof of payment of consideration, in
the year 1992, the Income Tax returns filed by PW-1, in the year 1997, clearly
disclose that the payment is made. He has also filed a summary of the pleadings
and gist of his arguments.
Sri D. Prakash Reddy, learned Senior Counsel for the defendants, on the
other hand, submits that the case of the plaintiffs is full of contradictions
and inconsistencies, and that the trial Court was virtually left with no
alternative, except to dismiss the suit. He submits that this is a typical
case, where an agreement, which is said to have been executed in favour of one
person, is sought to be enforced by another, that too, without explaining
several discrepancies and lacunae. He contends that PW-1 himself deposed that
the consideration was not paid under Ex.A-29, and that he does not know, as to
whether it is paid, at all. Learned counsel submits that there is nothing on
record to suggest either that Ex.A-29 was executed in favour of the 2nd
plaintiff, at the instance of PW-1, or that the 2nd plaintiff has later on
nominated
PW-1, as the purchaser. He contends that the sole basis for the claim of PW-1
is the letter and affidavit said to have been signed by DW-1, in favour of PW-1,
marked as Exs.A-31 and 32, and on a comparison of the same with the originals
and other relevant documents, the handwriting expert recorded a finding to the
effect that they are fabricated and forged.
Learned Senior Counsel further submits that PW-1 has gone to the extent of
obtaining the original of the sale deed, executed by the Society, in favour of
DW-1, by fabricating a letter of authorization, i.e. Ex.A-38. He pleads that
though DW-1 is the absolute owner of the property, that too, since 2002, PW-1
demanded the 2nd defendant, for execution of sale deed. It is urged that the
2nd plaintiff, who alone filed the appeal, is only the so-called second wife of
PW-1, and the person, in whose name Ex.A-29 is said to have been executed,
whereas the undisputed legal heirs of PW-1, i.e. plaintiffs 3 and 4, did not
file appeal, at all. He contends that the 3rd plaintiff has, in fact, supported
the case of the defendants 1 and 2.
The suit was filed for the relief of specific performance of an agreement
of sale, or, in the alternative, for refund of a sum of Rs.15,21,096-10 ps. The
suit schedule property is a valuable one, and obviously for that reason, the
contest between the parties was very keen. On the basis of the pleadings before
it, the trial court framed the following issues for its consideration:
1. "Whether the Plaintiff is entitled for the relief of specific performance of
suit agreement of sale as prayed for?
2. Whether the Plaintiff is entitled alternatively for a decree for recovery of
Rs.15,21,096-10 Ps together with interest from the defendants as prayed for?
3. Whether the suit agreement and other documents are fabricated and forged"
The deceased-1st plaintiff deposed as PW-1. One,
Sri B.S. Srinivasan, deposed as PW-2, and the Driver of PW-1 deposed as PW-3.
However, his evidence was only as to the question of possession over the suit
schedule property. On their behalf, Exs.A-1 to A-47 were filed.
The 1st defendant deposed as DW-1. A Contractor, engaged by her, for
construction of a compound wall, was examined as
DW-2. The 3rd plaintiff in the suit, i.e. the son of PW-1 deposed as DW-3. The
handwriting expert was examined as DW-4, and Exs.B-1 to B-45 were filed. The
proceedings pertaining to the examination of the documents, by DW-4, were taken
on record, as Exs.C-1 to
C-5.
Though at one stage of the suit PW-1 claimed to be in possession of the
property, he did not stress it beyond a point.
After hearing the elaborate arguments advanced on behalf of the parties
and on a perusal of the record, we are of the view that the following points
arise for consideration in this appeal:
a) Whether there existed any agreement of sale in respect of the suit schedule
property in favour of the
PW-1;
b) Whether PW-1 paid the consideration for the property;
c) Whether PW-1 proved the crucial factors, that constituted the basis for him
to insist on the execution of the sale deed, in respect of the suit schedule
property;
d) Whether the plaintiffs are entitled for the relief of specific performance of
agreement of sale; and
e) Whether the plaintiffs are entitled for the relief of refund of the amount,
claimed in the suit.
Points (a), (b) and (c):
The first three points framed above, in a way, overlap each other. Hence
they are discussed together.
PW-1 was the lone plaintiff in the suit. The facts pleaded by him in the
plaint were that defendants 1 and 2 are his family friends, and through a common
friend, B.S. Srinivasan, i.e. PW-2, the latter mooted the idea of selling the
suit schedule property in the year 1992. By that time, the state of affairs was
that the Society allotted the suit schedule plot in favour of one, Mr.J.
Shashidhar, and he, in turn, is said to have submitted a letter and affidavit
for transfer of the plot in favour of DW-1. The status of DW-1 was that, she
figured as nominee by the original allottee. Beyond that, neither she has paid
the consideration to the Society, nor any document was executed by the Society
in her favour.
In the plaint, PW-1 did not make any mention about the
agreement of sale, said to have been executed by DW-1. The relevant paragraph
reads, as under:
"Para 4: That the Defendant No.1 at a later stage entered into an arrangement
for transfer of membership and allotment of plot in favour of the plaintiff
herein. The plaintiff herein however nominated one Smt. I. Vasantha for the
said purpose. The negotiations for the transaction were held between the
plaintiff on the one hand and the defendant No.1 and her husband defendant No.2
on the other in the presence of a common friend Mr.S. Srinivasan an Auditor the
consideration of Rs.2,00,000/- was agreed. As per the arrangements dated 4-7-
1992, the Defendant No.1 herein had also signed necessary affidavit and
application for submission in the society for transfer of membership and
allotment of plot in the name of I. Vasantha, nominee of the plaintiff herein.
However, in view of the various problems in the society the matter was getting
delayed and the papers were not submitted. Thereafter, the Defendants 1 and 2
made a request for some additional consideration. After the negotiations in the
presence of Mr.S. Srinivasan the figure of Rs.2,60,000/- was agreed. The
plaintiff had paid the said amount of Rs.2,60,000/- to the Defendants".
It is also important to note that the agreement of sale,
Ex.A-29, dated 04-07-1992, was not included in the list of documents, which
contained 38 items. The averments in paragraph 4 of the plaint are, as vague as
they could be. Added to that, PW-1 did not state as to when he paid the amount
of Rs.2,60,000/-. The oral evidence of PW-1 is in no way different. The
relevant portion on this aspect, runs as under:
"...In the year 1991-92 the def.no.1 entered into an agreement with me for
transfer of membership and consequent transfer of allotment of plot in my
favour. It is true at that time S. Srinivasan was the auditor of Def.No.1 and
2. He is also the auditor for me and even now he continues. I am not aware
till what time S. Srinivasan continued as an auditor of D1 and D2. I do not
remember the date of payment of Rs.2.00 lakhs. Since party was known to me I
did not insist for passing a receipt since they have initiated all the necessary
steps with the society. I did not obtain any receipt for Rs.2.00 lakhs or 2.60
lakhs either from the def.no.1 or def.no.2. I did not pay the amount towards
hand loan or on interest."
This evidence proceeds on the assumption that the agreement of sale, Ex.A-
29 was in favour of PW-1 himself. On the question of payment, it is necessary
to take note of the deposition of the other witness, i.e. PW-2. He stated that
he prepared the agreement of sale, Ex.A-29. He further stated on this aspect,
as under:
"...The 1st defendant has agreed to sell the property for Rs.2,15,000/-. I have
no idea when the sale consideration was paid. It was brought to my notice that
the amount was paid. It was only disclosed at the time of filing return under
voluntary disclose scheme in 1997. Till then I am not aware".
A clear suggestion was made to him that the defendants
1 and 2 borrowed a sum of Rs.2 lakhs from PW-1, for their business, and that it
has nothing to do with the sale of plot, in question.
In that connection, PW-2 stated,
"...It is not true to say that I arranged the loan with the plaintiff for
defendants. I do not know when the payment was made under Ex.A29. I only
learnt about it in 1997
on being informed by P.W.1."
A perusal of Ex.A-29, however, discloses that it is in the name of the 2nd
plaintiff, i.e. the sole appellant herein. By that time, she was not married to
PW-1. On the other hand, PW-1 had his wife and two grown up children,
plaintiffs 3 and 4, who are added as respondents 3 and 4 in this appeal. It has
come on record that
PW-1 filed suits against his first wife for declaration, that the properties,
which are in the name of his wife, belong to him.
That only indicates that, he was indulging in benami, or speculative
transactions, and he did not even spare his family members, in this regard.
This is fortified from the fact that his son, the 3rd plaintiff,
did not hesitate to support the case of the defendants 1 and 2,
as a witness.
Since Ex.A-29 is in the name of the 2nd plaintiff, and she was not at all
related to PW-1, by the time, Ex.A-29 was executed, it was she, who could have
sought enforcement thereof, provided she proved the contents thereof, and
payment of consideration. Even that depended upon the existence of saleable
interest in favour of the DW-1, vis--vis the property. That, however, did not
happen. Though PW-1 pleaded that Vasantha Kumari (2nd plaintiff), purchaser
under Ex.A-29 was his nominee, he did not choose to implead her in the suit, as
a party. It is a different matter that she came on record as legal
representative of PW-1.
The alleged promise of DW-1 to sell the suit schedule property is
contained in Ex.A-29. PW-1 does not figure anywhere in it, and there is no other
external record, about payment of consideration, or nomination by PW-1. The
basis for him to require DW-1 to execute the sale deed in his favour are, the
letter and affidavit said to have been submitted by her, marked as Exs.A-31 and
32.
Even otherwise, PW-1 could have enforced his rights, if any, only by
a) proving Ex.A-29, by examining Vasantha Kumari,
2nd plaintiff, the so-called purchaser under it, and establishing payment of
consideration, under it;
b) by proving his nomination by the 2nd plaintiff, that too, with the approval
of DW-1; and
c) proving Exs.A-31 and 32.
Viewed from any angle, the precedence and evidence of Vasantha Kumari, the
2nd plaintiff, becomes pivotal in the suit.
In the first instance, she was said to be a nominee and at the second instance,
she is said to have named PW-1 as her nominee. However, PW-1 did not implead
Vasantha Kumari, much less, did he examine her, as a witness. She came into
picture only after the death of PW-1, claiming to be his second wife. Being not
a party to Ex.A-29, there was no way, that PW-1 could have proved it. Assuming
that there did not exist any controversy about execution of Ex.A-29, PW-1 could
have derived rights only through any document executed in his favour by the 2nd
plaintiff. Since nothing of that sort is forthcoming, there is absolutely no
connectivity between PW-1 and DW-1, in this regard.
If Exs.A-31 and 32 are proved, there may be scope for ignoring for a
while, the lapses on the part of PW-1 in providing necessary links. Ex.A-31 is
a letter, and Ex.A-32 is an affidavit, said to have been submitted by DW-1,
before the Society, expressing her desire to transfer her rights over the plot
in question, in favour of
PW-1. These two would be, in supercession of similar letter and affidavit, said
to have been submitted by DW-1, in favour of the
2nd plaintiff, in the year 1994. It is important to notice that the
2nd plaintiff has been described as sister of DW-1, in the first set of letter
and affidavit, whereas in the second set of letter and affidavit, PW-1 is shown
as the brother of DW-1. The subsequent event is that there was a marriage
between two persons described as brother and sister of DW-1. This was rightly
commented by the trial Court, to demonstrate the dubious nature of the entire
exercise, undertaken by PW-1, and the 2nd plaintiff.
DW-1 categorically denied the execution of Exs.A-31 and 32. Obviously for
that reason, the documents were sent for examination by an expert, i.e. DW-4.
Exs.A-31 and 32 contained two signatures each, of the same individual, in the
name of Madhavi, i.e. DW-1. Another important document which, DW-1 disputed, is
Ex.A-39, the letter of authorization addressed to the Sub-Registrar for
collecting the registered sale deed. After undertaking thorough analysis, and
after comparing with the undisputed signatures, DW-4 found that one signature
each, on Exs.A-31 and 32 and the only signature on Ex.A-39, are not that of DW-
1. With this, the whole edifice of evidence of PW-1 collapses.
The contention of the learned Senior Counsel for the plaintiffs is that,
even if one out of the two signatures on Exs.A-31 and 32 were found to be
genuine, the documents can be taken as proved. A person, who has no regard for
truth, and who is prepared to go to the extent of forging the signatures of the
persons; does not deserve any relief, much less equitable relief of specific
performance of agreement of sale.
So far as payment of consideration is concerned, it is evident that Ex.A-
29 was silent about this. It has only stipulated the amount. Even if that
document is to be taken on its face value and as proved, it was only Vasantha
Kumari, who was supposed to make the payment. The case of PW-1 is that Vasantha
Kumari was only his nominee. If that were to be so, he ought to have
established payment of consideration. The relevant portions of his evidence
were already extracted in the preceding paragraphs of the judgment. PW-1
categorically stated that he cannot state as to when the amount was paid.
Obviously because there is no record to show payment of amount, and the payment
was not reflected in his income tax returns for the relevant period,
he invented a dubious method of making a self declaration, before the
authorities of the Income Tax Department in the year 1997, stating that he paid
the amount of Rs.2 lakhs in the year 1992.
There cannot be any better instance of treating the system of adjudication as
gullible or pliable, than this. If he paid the consideration and nominated
another person as the purchaser, there should have been a recital, to that
effect.
The deposition of PW-2 has added further dimensions to the controversy.
According to him, the amount was paid by the time, the agreement was executed.
If that were to be so, there would have been recital to the effect that the
amount is paid. The person who drafted the agreement is none other than an
Auditor. When PW-1 has stated that he cannot state as to when the consideration
was paid, and there is nothing on record to prove it, it can safely be concluded
that PW-1 failed to prove the payment of consideration under the agreement.
Once the important and pivotal element is missing, there is no way, that the
agreement, even if existing,
can be enforced.
Mere payment of money by one individual to another, does not, by itself,
bring about the transaction of a particular description. It is only when there
exists unity of opinion, or what is commonly known in the realm of contracts, as
consensus ad idem, that it can be treated as a consideration of the contract of
a particular description. The money can certainly constitute the consideration,
in a given transaction. However, it is only when it is paid by one,
to another, with a specific understanding, that it is the consideration for a
contract, that the contract can be said to have come into existence. The money
paid for one purpose, cannot be treated as consideration for another.
Even if a
person pays the amount to another, with an idea that it is the consideration for
purchase of an item of property, law would recognize such event, if only the
person who paid the amount establishes that the one, who received it, was also
of the same idea and understanding.
The doctrines of "privity of consideration"
and "antecedent debt as consideration" and past consideration also come into
play. Assuming that PW-1 paid any amount to DW-1, it was "voluntary", vis--vis
the sale transaction, since DW-1 received it as debt, and not as consideration
(See Chitty on Contracts, Vol. I Chapter III & Mulla - Indian Contract and
Specific Relief Acts, Vol. I, page 104).
In the instant case, PW-1 was not clear as to when he paid the amount.
Ex.A-29 was not in his favour. There is no recital in that document also, about
payment of amount. The defendants 1 and 2 categorically stated that they
received a sum of Rs. 2 lakhs, as loan, from the respondents, long ago, for
their necessity, and paid the same. In case PW-1 wanted to treat the money paid
by him, as the consideration for the land, heavy burden rested upon him,
to establish the relevant factors. However, he miserably failed,
in this front. Further, DW-1 did not derive any right, much less saleable
interest, vis--vis the land, by the time, Ex.A-29 was said to have been
executed.
Therefore, points (a), (b) and (c) are answered against the plaintiff
(appellant).
Point (d):
The relief of specific performance of an agreement of sale is equitable in
nature. Section 20 of the Specific Relief Act enunciates the principle, that
guide the grant or denial of the relief. Even if an agreement is proved, the
Court is required to take into account, the conduct of the parties, the fairness
in the deal, and the entitlement of the plaintiff, while framing the relief. The
Court can never extend its helping hand to a person, who indulges in dubious
transactions, and attempts to deceive the innocent persons. There are several
factors, which militate against the plaintiffs in this case. To illustrate:
a) The only plaintiff, who instituted the suit, did not figure anywhere in the
agreement, Ex.A-29, nor did he refer to the agreement in the plaint, much less
did he file it at the initial stage;
b) the person, in whose name, agreement Ex.A-29 was executed, i.e. Vasantha
Kumari, was neither impleaded as a party, nor was examined as a witness;
c) PW-1 not only failed to prove payment of consideration, but also claimed ignorance about it.
d) the value of the suit schedule property was not less than Rs.1,000/- per sq.yard, at the relevant point of time, and the consideration would have been,more than Rs.10 lakhs in 1991 (the prevailing market value is, in the range of Rs.30,000/-
to 40,000/- per sq.yard, i.e. about Rs.3.5 to Rs.4.5 crores), whereas the consideration mentioned in the agreement of sale is Rs.2 lakhs, that too,without any advance payment, or proof as to subsequent payment;
e) The clear finding of the trial Court to the effect that the documents Exs.A- 32 and A-39, which constituted the basis for the plaintiffs to claim rights, are fabricated; and
f) the conduct of the plaintiff in fabricating a letter of authorization, to get the original sale deed executed
by the Society in favour of DW-1.
These and other factors collectively lead to inescapable conclusion that
the plaintiff is not entitled for the relief of specific performance of
agreement of sale.
DW-1 did not have any saleable interest, much less title by
the time, the so-called agreement of sale, Ex.A-29 was came into existence.
The
point is answered accordingly.
Point (e):
In all fairness, the defendants 1 and 2 admitted that they borrowed a sum
of Rs.2 lakhs from the PW-1, when they are facing financial difficulty in
running an industry.
PW-1 fabricated all the documents, once the Society
executed the sale deed, Ex.A-30, on 04-01-2002, in favour of DW-1.
He swung into action and brought in
existence, the letter of authorization, Ex.A-38, got the original sale deed, and
then started demanding execution of the sale deed in his favour. The letter was
addressed to the 2nd defendant, who admittedly did not have any right in the
property. The latter promptly replied, stating that they have never undertaken
to sell the plot, and repaid the amount, borrowed by them, through a pay order.
However, PW-1 refused to receive the amount. The record discloses that PW-1
took lead in arranging for the purchase of stamps etc., at a time when DW-1 was
not in India, and incurred some expenditure.
Though there is some doubt as to
the aggregate of the amount, which the defendants 1 and 2 owe to PW-1, we are of the view that a decree can be passed for refund of a sum of Rs.15,21,096-10 ps. to the plaintiffs 2, 3 and 4.
Hence, the appeal is partly allowed, upholding the decree, to the extent
it has denied the specific performance of agreement of sale, but granting the alternative relief of directing refund of a sum of Rs.15,21,096-10 ps. to the plaintiffs 2, 3 and 4, jointly, leaving it open to them to determine their
respective shares, subject to the handing over the original sale deed of the
suit property to the 1st defendant. The amount shall carry interest @ 10% per annum from the date of the decree, till the date of its realization.
The miscellaneous petition filed in this appeal shall also stand disposed
of.
There shall be no order as to costs.
________________________
L. NARASIMHA REDDY, J.
______________________
K. G. SHANKAR, J.
Dt.29-04-2013.
THE HON'BLE SRI JUSTICE L .NARASIMHA REDDY
THE HON'BLE SRI JUSTICE K.G.SHANKER
CCCA No.84 of 2010
(Judgment of the Bench delivered by
the Hon'ble Sri Justice L. Narasimha Reddy)
29-04-2013
Sri Krishna Devloor (D.S. Krishna) (died) per LR ...appellants
Vs.
N. Madhavi and others ...Respondents
Counsel for the appellants : Sri B.V. Subbaiah, Sr. Counsel
Counsel for the Respondents : Sri D. Prakash Reddy, Sr. Counsel
<GIST:
>HEAD NOTE:
?Cases referred
NIL
JUDGMENT: (Per the Hon'ble Sri Justice L. Narasimha Reddy)
This appeal is filed against the judgment and decree dated 22-03-2010
passed by the Court of IX Additional Chief Judge
(Fast Track Court), City Civil Court, Hyderabad. For the sake of convenience,
the parties herein are referred to, as arrayed in the suit.
The deceased-1st plaintiff (hereinafter referred to, as 'PW-1') filed the
suit against the defendants for the relief of specific performance of agreement
of sale, in respect of the suit schedule property, a plot of about 1100 sq.
yards in Jubilee Hills, Hyderabad, or, in the alternative, for a decree, for
refund of Rs.15,21,096-10 ps., with interest.
During the pendency of the suit, PW-1 died.
Smt. D. Vasantha Kumari, the 2nd plaintiff, who is said to be the
2nd wife of PW-1, and respondents 3 and 4 herein (plaintiffs 3 and 4 in the
suit), who are his son and daughter, respectively, through his first wife, were
added as legal representatives. This appeal is filed by the 2nd plaintiff.
The facts pleaded in the plaint, in brief, are that the suit schedule plot
was allotted by the Jubilee Hills Cooperative House Building Society (for short
'the Society') in favour of one, Mr.J. Shashidhar, and the original allottee agreed to transfer the plot as well as his membership in the Society, in favour of the1st defendant,
(hereinafter referred to as 'DW-1'). A letter dated
29-06-1991 (Ex.A-1) is said to have been issued by the original allottee, in
favour of DW-1. She, in turn, is said to have agreed to sell the plot to PW-1,
for a consideration of Rs.2,00,000/-, and accordingly, executed an agreement of
sale (Ex.A-29),
on 04-07-1992 in favour of the 2nd plaintiff, as nominee of PW-1 (much before
she came to be brought on record as legal representative). It was also stated
that the execution of agreement of sale was followed by submission of a letter
and affidavit by DW-1, on 10-12-1994.
According to PW-1, the transaction could not be finalized,
on account of certain organizational and administrative problems in the Society.
It was further pleaded that in supercession of an earlier arrangement, DW-1 has
agreed to sell the plot directly to PW-1, and accordingly addressed a letter
dated 10-08-1996 to the society, (Ex.A-31), and filed affidavit on 28-08-1996
(Ex.A-32). PW-1 is also said to have filed his affidavit, Ex.A-33, expressing
his willingness, on the same day.
PW-1 stated that after the uncertainties prevailing in the society
subsided, they were informed that a sale deed would first
be executed in favour of DW-1, and thereafter, she can execute a sale deed in
favour of her purchaser.
PW-1 is said to have arranged for finances, for
payment of a) dues to the Society, b) purchase of stamps, and c) dues of property tax; in all about Rs.15,00,000/-.
A sale deed was executed by the Society in favour of DW-1 on 04-01-2002
(Ex.A-30). Thereafter, PW-1 addressed a letter dated 20-04-2002 (Ex.A-10) to
the 2nd defendant, the husband of DW-1, calling upon him to arrange for
execution of sale deed, in his favour. The 2nd defendant, however, issued a reply dated
04-05-2002 (Ex.A-14), stating that the agreement of sale, executed in the year
1992, in favour of Smt. D. Vasanta Kumari (2nd plaintiff), was just a measure of security for repayment of the amount,borrowed from PW-1. He has also stated that they were ready to pay the amount,
and neither himself, nor his wife intend to sell the plot. This was followed by
a notice/letter dated 04-09-2002 (Ex.A-16), equivalent to Ex.B-19, addressed to the
2nd defendant. It was also pleaded by PW-1 that apart from payment of
registration charges, he paid the property tax, for the plot in question.
Alleging that the defendants 1 and 2 avoided execution of the sale deed, without
there being any valid legal basis, the suit was filed for specific performance
of agreement of sale, or for refund of the amount.
The defendants 1 and 2 opposed the suit, by filing the written-statement.
It was pleaded that DW-1 never intended to transfer the plot, or membership to
anyone. It was stated that they became acquainted with PW-1 through a common
friend, by name, B.S.Srinivasan, PW-2, and when they were in need of money, for
their industry, PW-1 advanced a sum of Rs.2 lakhs, and as a measure of security,
he obtained certain documents and signed blank papers. It was also their case
that DW-1 did not have any title to the plot of land, as on the date of the
alleged agreement, and there is no question of her executing any agreements of
sale, much less sale deeds. It was also stated that even according to the
documents, relied upon by PW-1, no consideration has been paid, and the whole exercise is speculative in nature.
DW-1 further pleaded that the payment of amounts to the Society was made
by PW-1, on his own accord, without any information to her, and in fact, the
letter of authorization (Ex.A-38), to obtain the registered sale deed, was also
fabricated by PW-1. She pleaded that the so-called letter and affidavit, marked
as Exs.A-31 and 32, were fabricated by PW-1, with oblique motive.
It was also her case that any payment made by PW-1, without authorization from
her, does not give rise to any rights to him. According to her, she has made
construction over the plot, and PW-1 did not have any right or interest over the
property in question. She expressed her readiness and willingness to pay the
amount, borrowed by her, from PW-1.
The trial Court dismissed the suit. Hence, this appeal.
Sri B. V. Subbaiah, learned Senior Counsel for the plaintiffs submits that
the trial Court disregarded the consistent oral evidence and voluminous
documentary evidence adduced on behalf of PW-1 and dismissed the suit.
He submits that once DW-1 admitted the factum of
receipt of amount, and the execution of agreement of sale, Ex.A-29, the decree
for specific performance ought to have been passed.
Learned Senior Counsel submits that the transaction in relation of the
allotment of plots by the Society is such that, whenever a party intends to
transfer the plot, he/she is required to file a letter and affidavit to that
effect, and some times by way of precaution, the signatures of the parties are
taken in the office of the Society, once again on the letter and affidavit, and
that in the instant case, the small discrepancy, that was noticed in the two
signatures, on the letter and affidavit, is projected beyond proportion. He
submits that the letter of authorization to receive the registered sale deed
from the office of the Sub-Registrar has also emerged in similar fashion.
Learned Senior Counsel further submits that though the initial agreement
of sale was in favour of the 2nd plaintiff, she nominated PW-1, as the
purchaser, and DW-1 ought to have executed the sale deed. He further submits
that even if there is any defect or deficiency in the title to the property,
when the agreement of sale was executed, the obligation to execute the sale deed
becomes enforceable, once the vendor acquires absolute title for the property.
It is also pleaded that though there is no proof of payment of consideration, in
the year 1992, the Income Tax returns filed by PW-1, in the year 1997, clearly
disclose that the payment is made. He has also filed a summary of the pleadings
and gist of his arguments.
Sri D. Prakash Reddy, learned Senior Counsel for the defendants, on the
other hand, submits that the case of the plaintiffs is full of contradictions
and inconsistencies, and that the trial Court was virtually left with no
alternative, except to dismiss the suit. He submits that this is a typical
case, where an agreement, which is said to have been executed in favour of one
person, is sought to be enforced by another, that too, without explaining
several discrepancies and lacunae. He contends that PW-1 himself deposed that
the consideration was not paid under Ex.A-29, and that he does not know, as to
whether it is paid, at all. Learned counsel submits that there is nothing on
record to suggest either that Ex.A-29 was executed in favour of the 2nd
plaintiff, at the instance of PW-1, or that the 2nd plaintiff has later on
nominated
PW-1, as the purchaser. He contends that the sole basis for the claim of PW-1
is the letter and affidavit said to have been signed by DW-1, in favour of PW-1,
marked as Exs.A-31 and 32, and on a comparison of the same with the originals
and other relevant documents, the handwriting expert recorded a finding to the
effect that they are fabricated and forged.
Learned Senior Counsel further submits that PW-1 has gone to the extent of
obtaining the original of the sale deed, executed by the Society, in favour of
DW-1, by fabricating a letter of authorization, i.e. Ex.A-38. He pleads that
though DW-1 is the absolute owner of the property, that too, since 2002, PW-1
demanded the 2nd defendant, for execution of sale deed. It is urged that the
2nd plaintiff, who alone filed the appeal, is only the so-called second wife of
PW-1, and the person, in whose name Ex.A-29 is said to have been executed,
whereas the undisputed legal heirs of PW-1, i.e. plaintiffs 3 and 4, did not
file appeal, at all. He contends that the 3rd plaintiff has, in fact, supported
the case of the defendants 1 and 2.
The suit was filed for the relief of specific performance of an agreement
of sale, or, in the alternative, for refund of a sum of Rs.15,21,096-10 ps. The
suit schedule property is a valuable one, and obviously for that reason, the
contest between the parties was very keen. On the basis of the pleadings before
it, the trial court framed the following issues for its consideration:
1. "Whether the Plaintiff is entitled for the relief of specific performance of
suit agreement of sale as prayed for?
2. Whether the Plaintiff is entitled alternatively for a decree for recovery of
Rs.15,21,096-10 Ps together with interest from the defendants as prayed for?
3. Whether the suit agreement and other documents are fabricated and forged"
The deceased-1st plaintiff deposed as PW-1. One,
Sri B.S. Srinivasan, deposed as PW-2, and the Driver of PW-1 deposed as PW-3.
However, his evidence was only as to the question of possession over the suit
schedule property. On their behalf, Exs.A-1 to A-47 were filed.
The 1st defendant deposed as DW-1. A Contractor, engaged by her, for
construction of a compound wall, was examined as
DW-2. The 3rd plaintiff in the suit, i.e. the son of PW-1 deposed as DW-3. The
handwriting expert was examined as DW-4, and Exs.B-1 to B-45 were filed. The
proceedings pertaining to the examination of the documents, by DW-4, were taken
on record, as Exs.C-1 to
C-5.
Though at one stage of the suit PW-1 claimed to be in possession of the
property, he did not stress it beyond a point.
After hearing the elaborate arguments advanced on behalf of the parties
and on a perusal of the record, we are of the view that the following points
arise for consideration in this appeal:
a) Whether there existed any agreement of sale in respect of the suit schedule
property in favour of the
PW-1;
b) Whether PW-1 paid the consideration for the property;
c) Whether PW-1 proved the crucial factors, that constituted the basis for him
to insist on the execution of the sale deed, in respect of the suit schedule
property;
d) Whether the plaintiffs are entitled for the relief of specific performance of
agreement of sale; and
e) Whether the plaintiffs are entitled for the relief of refund of the amount,
claimed in the suit.
Points (a), (b) and (c):
The first three points framed above, in a way, overlap each other. Hence
they are discussed together.
PW-1 was the lone plaintiff in the suit. The facts pleaded by him in the
plaint were that defendants 1 and 2 are his family friends, and through a common
friend, B.S. Srinivasan, i.e. PW-2, the latter mooted the idea of selling the
suit schedule property in the year 1992. By that time, the state of affairs was
that the Society allotted the suit schedule plot in favour of one, Mr.J.
Shashidhar, and he, in turn, is said to have submitted a letter and affidavit
for transfer of the plot in favour of DW-1. The status of DW-1 was that, she
figured as nominee by the original allottee. Beyond that, neither she has paid
the consideration to the Society, nor any document was executed by the Society
in her favour.
In the plaint, PW-1 did not make any mention about the
agreement of sale, said to have been executed by DW-1. The relevant paragraph
reads, as under:
"Para 4: That the Defendant No.1 at a later stage entered into an arrangement
for transfer of membership and allotment of plot in favour of the plaintiff
herein. The plaintiff herein however nominated one Smt. I. Vasantha for the
said purpose. The negotiations for the transaction were held between the
plaintiff on the one hand and the defendant No.1 and her husband defendant No.2
on the other in the presence of a common friend Mr.S. Srinivasan an Auditor the
consideration of Rs.2,00,000/- was agreed. As per the arrangements dated 4-7-
1992, the Defendant No.1 herein had also signed necessary affidavit and
application for submission in the society for transfer of membership and
allotment of plot in the name of I. Vasantha, nominee of the plaintiff herein.
However, in view of the various problems in the society the matter was getting
delayed and the papers were not submitted. Thereafter, the Defendants 1 and 2
made a request for some additional consideration. After the negotiations in the
presence of Mr.S. Srinivasan the figure of Rs.2,60,000/- was agreed. The
plaintiff had paid the said amount of Rs.2,60,000/- to the Defendants".
It is also important to note that the agreement of sale,
Ex.A-29, dated 04-07-1992, was not included in the list of documents, which
contained 38 items. The averments in paragraph 4 of the plaint are, as vague as
they could be. Added to that, PW-1 did not state as to when he paid the amount
of Rs.2,60,000/-. The oral evidence of PW-1 is in no way different. The
relevant portion on this aspect, runs as under:
"...In the year 1991-92 the def.no.1 entered into an agreement with me for
transfer of membership and consequent transfer of allotment of plot in my
favour. It is true at that time S. Srinivasan was the auditor of Def.No.1 and
2. He is also the auditor for me and even now he continues. I am not aware
till what time S. Srinivasan continued as an auditor of D1 and D2. I do not
remember the date of payment of Rs.2.00 lakhs. Since party was known to me I
did not insist for passing a receipt since they have initiated all the necessary
steps with the society. I did not obtain any receipt for Rs.2.00 lakhs or 2.60
lakhs either from the def.no.1 or def.no.2. I did not pay the amount towards
hand loan or on interest."
This evidence proceeds on the assumption that the agreement of sale, Ex.A-
29 was in favour of PW-1 himself. On the question of payment, it is necessary
to take note of the deposition of the other witness, i.e. PW-2. He stated that
he prepared the agreement of sale, Ex.A-29. He further stated on this aspect,
as under:
"...The 1st defendant has agreed to sell the property for Rs.2,15,000/-. I have
no idea when the sale consideration was paid. It was brought to my notice that
the amount was paid. It was only disclosed at the time of filing return under
voluntary disclose scheme in 1997. Till then I am not aware".
A clear suggestion was made to him that the defendants
1 and 2 borrowed a sum of Rs.2 lakhs from PW-1, for their business, and that it
has nothing to do with the sale of plot, in question.
In that connection, PW-2 stated,
"...It is not true to say that I arranged the loan with the plaintiff for
defendants. I do not know when the payment was made under Ex.A29. I only
learnt about it in 1997
on being informed by P.W.1."
A perusal of Ex.A-29, however, discloses that it is in the name of the 2nd
plaintiff, i.e. the sole appellant herein. By that time, she was not married to
PW-1. On the other hand, PW-1 had his wife and two grown up children,
plaintiffs 3 and 4, who are added as respondents 3 and 4 in this appeal. It has
come on record that
PW-1 filed suits against his first wife for declaration, that the properties,
which are in the name of his wife, belong to him.
That only indicates that, he was indulging in benami, or speculative
transactions, and he did not even spare his family members, in this regard.
This is fortified from the fact that his son, the 3rd plaintiff,
did not hesitate to support the case of the defendants 1 and 2,
as a witness.
Since Ex.A-29 is in the name of the 2nd plaintiff, and she was not at all
related to PW-1, by the time, Ex.A-29 was executed, it was she, who could have
sought enforcement thereof, provided she proved the contents thereof, and
payment of consideration. Even that depended upon the existence of saleable
interest in favour of the DW-1, vis--vis the property. That, however, did not
happen. Though PW-1 pleaded that Vasantha Kumari (2nd plaintiff), purchaser
under Ex.A-29 was his nominee, he did not choose to implead her in the suit, as
a party. It is a different matter that she came on record as legal
representative of PW-1.
The alleged promise of DW-1 to sell the suit schedule property is
contained in Ex.A-29. PW-1 does not figure anywhere in it, and there is no other
external record, about payment of consideration, or nomination by PW-1. The
basis for him to require DW-1 to execute the sale deed in his favour are, the
letter and affidavit said to have been submitted by her, marked as Exs.A-31 and
32.
Even otherwise, PW-1 could have enforced his rights, if any, only by
a) proving Ex.A-29, by examining Vasantha Kumari,
2nd plaintiff, the so-called purchaser under it, and establishing payment of
consideration, under it;
b) by proving his nomination by the 2nd plaintiff, that too, with the approval
of DW-1; and
c) proving Exs.A-31 and 32.
Viewed from any angle, the precedence and evidence of Vasantha Kumari, the
2nd plaintiff, becomes pivotal in the suit.
In the first instance, she was said to be a nominee and at the second instance,
she is said to have named PW-1 as her nominee. However, PW-1 did not implead
Vasantha Kumari, much less, did he examine her, as a witness. She came into
picture only after the death of PW-1, claiming to be his second wife. Being not
a party to Ex.A-29, there was no way, that PW-1 could have proved it. Assuming
that there did not exist any controversy about execution of Ex.A-29, PW-1 could
have derived rights only through any document executed in his favour by the 2nd
plaintiff. Since nothing of that sort is forthcoming, there is absolutely no
connectivity between PW-1 and DW-1, in this regard.
If Exs.A-31 and 32 are proved, there may be scope for ignoring for a
while, the lapses on the part of PW-1 in providing necessary links. Ex.A-31 is
a letter, and Ex.A-32 is an affidavit, said to have been submitted by DW-1,
before the Society, expressing her desire to transfer her rights over the plot
in question, in favour of
PW-1. These two would be, in supercession of similar letter and affidavit, said
to have been submitted by DW-1, in favour of the
2nd plaintiff, in the year 1994. It is important to notice that the
2nd plaintiff has been described as sister of DW-1, in the first set of letter
and affidavit, whereas in the second set of letter and affidavit, PW-1 is shown
as the brother of DW-1. The subsequent event is that there was a marriage
between two persons described as brother and sister of DW-1. This was rightly
commented by the trial Court, to demonstrate the dubious nature of the entire
exercise, undertaken by PW-1, and the 2nd plaintiff.
DW-1 categorically denied the execution of Exs.A-31 and 32. Obviously for
that reason, the documents were sent for examination by an expert, i.e. DW-4.
Exs.A-31 and 32 contained two signatures each, of the same individual, in the
name of Madhavi, i.e. DW-1. Another important document which, DW-1 disputed, is
Ex.A-39, the letter of authorization addressed to the Sub-Registrar for
collecting the registered sale deed. After undertaking thorough analysis, and
after comparing with the undisputed signatures, DW-4 found that one signature
each, on Exs.A-31 and 32 and the only signature on Ex.A-39, are not that of DW-
1. With this, the whole edifice of evidence of PW-1 collapses.
The contention of the learned Senior Counsel for the plaintiffs is that,
even if one out of the two signatures on Exs.A-31 and 32 were found to be
genuine, the documents can be taken as proved. A person, who has no regard for
truth, and who is prepared to go to the extent of forging the signatures of the
persons; does not deserve any relief, much less equitable relief of specific
performance of agreement of sale.
So far as payment of consideration is concerned, it is evident that Ex.A-
29 was silent about this. It has only stipulated the amount. Even if that
document is to be taken on its face value and as proved, it was only Vasantha
Kumari, who was supposed to make the payment. The case of PW-1 is that Vasantha
Kumari was only his nominee. If that were to be so, he ought to have
established payment of consideration. The relevant portions of his evidence
were already extracted in the preceding paragraphs of the judgment. PW-1
categorically stated that he cannot state as to when the amount was paid.
Obviously because there is no record to show payment of amount, and the payment
was not reflected in his income tax returns for the relevant period,
he invented a dubious method of making a self declaration, before the
authorities of the Income Tax Department in the year 1997, stating that he paid
the amount of Rs.2 lakhs in the year 1992.
There cannot be any better instance of treating the system of adjudication as
gullible or pliable, than this. If he paid the consideration and nominated
another person as the purchaser, there should have been a recital, to that
effect.
The deposition of PW-2 has added further dimensions to the controversy.
According to him, the amount was paid by the time, the agreement was executed.
If that were to be so, there would have been recital to the effect that the
amount is paid. The person who drafted the agreement is none other than an
Auditor. When PW-1 has stated that he cannot state as to when the consideration
was paid, and there is nothing on record to prove it, it can safely be concluded
that PW-1 failed to prove the payment of consideration under the agreement.
Once the important and pivotal element is missing, there is no way, that the
agreement, even if existing,
can be enforced.
Mere payment of money by one individual to another, does not, by itself,
bring about the transaction of a particular description. It is only when there
exists unity of opinion, or what is commonly known in the realm of contracts, as
consensus ad idem, that it can be treated as a consideration of the contract of
a particular description. The money can certainly constitute the consideration,
in a given transaction. However, it is only when it is paid by one,
to another, with a specific understanding, that it is the consideration for a
contract, that the contract can be said to have come into existence. The money
paid for one purpose, cannot be treated as consideration for another.
Even if a
person pays the amount to another, with an idea that it is the consideration for
purchase of an item of property, law would recognize such event, if only the
person who paid the amount establishes that the one, who received it, was also
of the same idea and understanding.
The doctrines of "privity of consideration"
and "antecedent debt as consideration" and past consideration also come into
play. Assuming that PW-1 paid any amount to DW-1, it was "voluntary", vis--vis
the sale transaction, since DW-1 received it as debt, and not as consideration
(See Chitty on Contracts, Vol. I Chapter III & Mulla - Indian Contract and
Specific Relief Acts, Vol. I, page 104).
In the instant case, PW-1 was not clear as to when he paid the amount.
Ex.A-29 was not in his favour. There is no recital in that document also, about
payment of amount. The defendants 1 and 2 categorically stated that they
received a sum of Rs. 2 lakhs, as loan, from the respondents, long ago, for
their necessity, and paid the same. In case PW-1 wanted to treat the money paid
by him, as the consideration for the land, heavy burden rested upon him,
to establish the relevant factors. However, he miserably failed,
in this front. Further, DW-1 did not derive any right, much less saleable
interest, vis--vis the land, by the time, Ex.A-29 was said to have been
executed.
Therefore, points (a), (b) and (c) are answered against the plaintiff
(appellant).
Point (d):
The relief of specific performance of an agreement of sale is equitable in
nature. Section 20 of the Specific Relief Act enunciates the principle, that
guide the grant or denial of the relief. Even if an agreement is proved, the
Court is required to take into account, the conduct of the parties, the fairness
in the deal, and the entitlement of the plaintiff, while framing the relief. The
Court can never extend its helping hand to a person, who indulges in dubious
transactions, and attempts to deceive the innocent persons. There are several
factors, which militate against the plaintiffs in this case. To illustrate:
a) The only plaintiff, who instituted the suit, did not figure anywhere in the
agreement, Ex.A-29, nor did he refer to the agreement in the plaint, much less
did he file it at the initial stage;
b) the person, in whose name, agreement Ex.A-29 was executed, i.e. Vasantha
Kumari, was neither impleaded as a party, nor was examined as a witness;
c) PW-1 not only failed to prove payment of consideration, but also claimed ignorance about it.
d) the value of the suit schedule property was not less than Rs.1,000/- per sq.yard, at the relevant point of time, and the consideration would have been,more than Rs.10 lakhs in 1991 (the prevailing market value is, in the range of Rs.30,000/-
to 40,000/- per sq.yard, i.e. about Rs.3.5 to Rs.4.5 crores), whereas the consideration mentioned in the agreement of sale is Rs.2 lakhs, that too,without any advance payment, or proof as to subsequent payment;
e) The clear finding of the trial Court to the effect that the documents Exs.A- 32 and A-39, which constituted the basis for the plaintiffs to claim rights, are fabricated; and
f) the conduct of the plaintiff in fabricating a letter of authorization, to get the original sale deed executed
by the Society in favour of DW-1.
These and other factors collectively lead to inescapable conclusion that
the plaintiff is not entitled for the relief of specific performance of
agreement of sale.
DW-1 did not have any saleable interest, much less title by
the time, the so-called agreement of sale, Ex.A-29 was came into existence.
The
point is answered accordingly.
Point (e):
In all fairness, the defendants 1 and 2 admitted that they borrowed a sum
of Rs.2 lakhs from the PW-1, when they are facing financial difficulty in
running an industry.
PW-1 fabricated all the documents, once the Society
executed the sale deed, Ex.A-30, on 04-01-2002, in favour of DW-1.
He swung into action and brought in
existence, the letter of authorization, Ex.A-38, got the original sale deed, and
then started demanding execution of the sale deed in his favour. The letter was
addressed to the 2nd defendant, who admittedly did not have any right in the
property. The latter promptly replied, stating that they have never undertaken
to sell the plot, and repaid the amount, borrowed by them, through a pay order.
However, PW-1 refused to receive the amount. The record discloses that PW-1
took lead in arranging for the purchase of stamps etc., at a time when DW-1 was
not in India, and incurred some expenditure.
Though there is some doubt as to
the aggregate of the amount, which the defendants 1 and 2 owe to PW-1, we are of the view that a decree can be passed for refund of a sum of Rs.15,21,096-10 ps. to the plaintiffs 2, 3 and 4.
Hence, the appeal is partly allowed, upholding the decree, to the extent
it has denied the specific performance of agreement of sale, but granting the alternative relief of directing refund of a sum of Rs.15,21,096-10 ps. to the plaintiffs 2, 3 and 4, jointly, leaving it open to them to determine their
respective shares, subject to the handing over the original sale deed of the
suit property to the 1st defendant. The amount shall carry interest @ 10% per annum from the date of the decree, till the date of its realization.
The miscellaneous petition filed in this appeal shall also stand disposed
of.
There shall be no order as to costs.
________________________
L. NARASIMHA REDDY, J.
______________________
K. G. SHANKAR, J.
Dt.29-04-2013.
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