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

Court has dismissed the said appeal preferred by the appellant

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

Estate  Promoters Limited, reported in  AIR  2012  SC  2035, it is

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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