M/S. Visistha Infra Developers vs Nalli Durga Rao

This Civil Miscellaneous Appeal is preferred against the order dt.24.03.2021 passed in Interlocutory Application No.44 of 2021 in Original Suit

No.12 of 2021 on the file of V Additional District Judge, Bhongir.

The appellant herein is plaintiff in the above suit.

The case of the appellant/plaintiff

The said suit was filed by respondent against the appellant for specific performance of an Agreement of Sale â€" Ex.P.1 â€" dt.04.08.2019

executed in favour of appellant by respondent agreeing to sell the plaint schedule property of Acs.8.9 gts. to appellant for Rs.3,29,00,000/-. According

to appellant, he had paid Rs.42.50 lakhs on different dates between 06.02.2019 and 10.07.2019 and the balance consideration of Rs.2,86,50,000/-

remained to be paid, and it was agreed between the parties that the said amount has to be paid within one year from the date of execution of Ex.P.1

â€" Agreement of Sale.

The appellant further contended that several times he had conveyed its readiness to pay the balance consideration and requested the respondent to

execute the Sale Deed after receiving the said balance consideration, but he did not come forward to do so. Thereafter, the appellant gave Ex.P.2 â€

Legal Notice dt.15.01.2021 on 15.01.2021, which was received by respondent, and a reply was got sent by respondent under Ex.P.4 dt.27.01.2021

styled as ‘letter of request’ wherein the respondent denied the execution of Ex.P.1 and called upon the appellant to furnish an attested Xerox

copy of Ex.P.1.

Interlocutory Application No.44 of 2021

Along with the suit, the appellant filed Interlocutory Application No.44 of 2021 under Order XXXIX Rules 1 and 2 of Civil Procedure Code, 1908

and sought an ad interim injunction restraining respondent from alienating the suit schedule property in any manner or from creating third-party interest

therein. He reiterated the contents of the plaint in the said application.

The stand of the respondent

Counter-affidavit was filed by respondent in Interlocutory Application No.44 of 2021 opposing grant of ad interim relief to the appellant.

The respondent denied that he needed money and he offered to sell the suit schedule property to the appellant and that he had executed Ex.P.1 â€

Agreement of Sale dt.04.08.2019. He alleged that he had also sold Ac.5.00 of land under Ex.R.1 dt.26.07.2017 and also an extent of Ac.0.39 gts.

through another registered Sale Deed Ex.R.2 dt.26.07.2017 in favour of Kondal Reddy and Srinivasulu Reddy, and therefore, there was no question of

any Agreement of Sale being executed by him in favour of appellant.

He admitted that he received Rs.26.40 lakhs from the appellant, but not Rs.42.50 lakhs as is alleged by the appellant.

According to him, the said amount was received by him for another transaction. He alleged that the appellant had created / forged Ex.P.1 and tried

to take undue advantage of the amounts paid by the respondent relating to the other transaction which has nothing to do with the suit schedule

property. He contended that he has only Acs.3.10 gts. left after selling Acs.5.19 gts. under Exs.R.1 and R.2 and he could not have received any

consideration from the appellant for an extent of Acs.8.9 gts.

He denied receipt of cash payment of Rs.10 lakhs and Rs.5 lakhs, and stated that there is a ceiling on payment of more than Rs.2 lakhs in cash,

and the receipts have also been created by the appellant by forging his signatures.

He contended that he had issued a letter of request on 27.01.2021 through his Counsel demanding the appellant to furnish copies of Exs.P.1 and

the receipts, but he did not furnish the said documents to his counsel. He also contended that partners of the appellant on 05.01.2021 attacked the

respondent at his residence and caused him physical injuries for which he lodged a police complaint at the Jubilee Hills, Police Station.

The order of the court below

Before the Court below, the appellant marked Exs.P.1 to P.7, and respondent marked Ex.R.1 and R.2.

By order dt.24.03.2021 the Court below dismissed Interlocutory Application No.44 of 2021 observing that since under Exs.R.1 and R2, the

respondent had already sold Acs.5.29 gts. to third-parties, it is difficult to believe that the respondent had entered into Ex.P.1 Agreement with the

appellant agreeing to sell ‘A’ to ‘C’ Schedule property to it. It also relied on the fact that the counsel for appellant did not supply copy of

Ex.P.1 to respondent in order to enable the respondent to give reply to the suit notice, Ex.P.2.

The instant CMA

Assailing the same, the present Appeal is filed.

Heard Sri K. Durga Prasad, counsel for appellant, and Sri P. Sashidhar Reddy, counsel for respondent.

The counsel for appellant contended that the property sold under Exs.R.1 and R.2 have different survey numbers, that the plaint schedule property

has Sy.No.s 136/AA2 and 137/AA1, but the properties which are sold under Exs.R.1 and R.2 have Sy.No.s 136/AA2/1 and Sy.No.137/A1/A; in the

Caveat filed by the respondent he has admitted that he owned land only in Sy.No.s.136/AA2 and 137/AA1; that respondent did not state that he

owned land in Sy.No. No.136/AA2/1 and 137/A1/A and the story set up by respondent that he had sold out of Acs.8.9 gts. and Acs.5.29 gts. under

Exs.R.1 and R.2, therefore, cannot be accepted.

A specific question was put to the counsel for respondent as to how the respondent could have sold the land in Sy.No.s No.136/AA2/1 and

137/A1/A, which are not stated in the Caveat filed by him in this CMA as belonging to him. There was no satisfactory answer from the counsel for

the said respondent.

This discrepancy in Sy.No.s mentioned in Exs.R.1 and R.2 with those mentioned in the plaint does not appear to have been noticed by the Court

below, and it presumed erroneously that a portion of plaint schedule land was sold by respondent to third parties, which does not appear to be true.

We may also point out that in the counter-affidavit filed in Interlocutory Application No.44 of 2021, the respondent failed to give the Sy.No.s of the

land sold under Exs.R.1 and R.2.

Both Counsel agreed that Sy.No.136/AA2/1 is a sub-division of Sy.No.136/AA2 and that Sy.No.137/AA1 would certainly be a different parcel of

land to that in Sy.No.137/A1/A.

It appears that prima facie the respondent wished to mislead the Court that the land covered by those Sale Deeds is same as the subject matter of

the suit, though it appears to be not so. In this view of the matter, we do not accept the plea of respondent that he had already sold off a portion of the

plaint schedule property under Exs.R.1 and R.2 to third parties.

We may also point out that he had admitted receipt of a sum of Rs.26.40 lakhs from the appellant allegedly for a different transaction, but he did

not chose to mention what is the nature of that transaction. Having received substantial consideration, it is not open to respondent to attempt to breach

the promise of selling the suit schedule property to appellant and selling it to some third party.

In our opinion, the Court below did not properly consider the material record, and therefore, its decision is vitiated.

Accordingly, the Civil Miscellaneous Appeal is allowed; the order dt.24.03.2021 passed in Interlocutory Application No.44 of 2021 in Original Suit

No.12 of 2021 on the file of V Additional District Judge, Bhongir is set aside; and Interlocutory Application No.44 of 2021 in Original Suit No.12 of

2021 on the file of V Additional District Judge, Bhongir is allowed with costs.

Pending miscellaneous petitions, if any, in this appeal shall also stand dismissed.