Appellant – Beemaneni Maha Lakshmi
Respondent – Gangumalla Appa Rao (Since Dead) By Lrs
Decided on – 9 May, 2019
CIVIL APPEAL NOS. 45374538 OF 2017
Bench – L. Nageswara Rao, M.R. Shah
Statues Referred:
The Urban Land (Ceiling and Regulation) Act, 1976
Case Referred:
A. Maria Angelena v. A.G. Balkis Bee, AIR 2002 SC 2385
Facts:
The appellant herein – the original defendant purchased the suit schedule property admeasuring 17 acres 39 cents situated at village Billawaka. The land in question was subjected to the provisions of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, the Land Reforms Tribunal held that the appellant is holding an excess land to the extent of 0.0013 cents.
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.
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 However, as the vendor – the appellant did not execute the sale deed, Therefore the plaintiff served a legal notice upon the appellant dated 6.4.1987.
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. Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court, the defendant preferred appeal before the High Court.
The High Court allowed the said application for additional evidence partly. That thereafter on appreciation/reappreciation of the entire evidence on record, by the impugned judgment and order, the High Court has dismissed the appeal and decree of specific performance of the agreement.
Again feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Judicature Andhra Pradesh the appellant filed an appeal in the apex court.
Issues:
i. 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?
ii. Whether the plaintiff is entitled for the alternative relief of refund of advance of sale consideration with interest as claimed?
Appellant’s contentions
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 materially erred in decreeing the suit and passing the decree of specific performance of the agreement to sell dated 30.12.1985.
It is further submitted 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.
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 specific performance of the agreement
It is further submitted 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 further submitted 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.
Respondent’s contentions:
The respondent contends 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 further submitted 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 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.
Judgement:
The apex court passed the judgement that “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 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 raised now, more particularly when no such plea was raised/taken in the written statement.”
“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 herein above, 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 the Supreme Court also confirm”
Held:
The Supreme Court held that In view of the above the present appeals fail and deserve to be dismissed and are accordingly dismissed.
The Supreme Court 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.
Prepared by – Devyansh Narula