T. Suresh vs Chakrapani

A.V. Chandrashekara, J.—Plaintiff of an original suit bearing O.S. No. 424/2005 which was pending on the file of the Court of II Addl. Civil Judge (Sr. Dn.), Bellary, is before this Court, as the suit filed for the relief of specific performance has been dismissed and the same being confirmed by the learned Judge of Fast Track Court-II, Bellary in R.A. No. 28/2008. Respondents herein are defendants 1 to 3 in the said suit. Parties will be referred to as plaintiff and defendants 1 to 3 as per the ranking given in the trial Court.

Defendants 1 and 2 are the sons of one Sudhama. They were the owners of the schedule land measuring 4 acres in Sy. No. 310-D of Bellagal Village, Bellary District. According to the plaintiff, both of them had agreed to sell the entire suit schedule property for a sum of Rs. 6 lakhs by executing an agreement of sale on 27.06.2005 and had received a sum of Rs. 2.25 lakhs as advance on the same day. According to the plaintiff, the defendants had agreed to sell the schedule property at the rate of Rs. 1.5 lakhs per acre after getting the same properly surveyed and issued, within three months.

The defendants had agreed to execute a regular sale within three months from the date of the agreement of sale. Inspite of several demands, the defendants went on postponing to execute the sale deed and hence the plaintiff got issued a legal notice to Defendants 1 and 2 on 24.10.2005 calling upon them to execute a regular sale deed, failing which there were constrained to file a suit for specific performance of the contract.

In spite of the receipt of the notice, the defendant did not come forward to execute a regular sale deed. On the other hand, they wanted the plaintiff to furnish them a copy of the alleged agreement of sale in order to reply effectively, vide reply dated 03.11.2005. Later on, plaintiff chose to file a suit for the relief of specific performance on 25.01.2005.

Plaintiff came to know that defendant Nos. 1 and 2 had sold the land in question to defendant No. 3 for a lesser price and that it was collusive transaction. Hence, the purchaser was also made as a party.

Defendant No. 1 filed detailed written statement denying all the material averments inclusive of execution of the agreement of sale, receipt of advance money of Rs. 2.25 lakhs and agreeing to execute the regular sale deed within three months by receiving the balance of consideration. According to them, plaintiff did not furnish the alleged agreement of sale to them in order to reply the notice. They have averred that the land in question has been sold in favour of defendant No. 3 through a registered sale deed No. 5753 of 2006 on the basis of a registered agreement of sale bearing No. 5315 of 2005-06.

Defendant No. 3 chose to file detailed written statement denying all the material averments. According to him, he is a bona fide purchaser for value without notice from defendant Nos. 1 and 2. He is stated to have made all bona fide enquiries before purchasing the property in question. He is stated to have purchased entire extent for a sum of Rs. 1,10,000/-. On the basis of the above pleadings, following issues came to be framed.

i) Whether the plaintiff proves that, on 27.06.2005 the defendants No. 1 and 2 have executed agreement of sale and received earnest money of Rs. 2,25,000/- out of sale consideration?

ii) Whether the plaintiff proves that, the defendants No. 1 and 2 have executed sale deed dated 21.10.2005 in favour of defendant No. 3 by suppressing the sale agreement and defendant No. 3 purchased schedule property knowing and having knowledge of the agreement made in favour of plaintiff and defendant No. 3 is not a bonafide purchaser?

iii) Whether the plaintiff proves that, he is ready and willing to perform his part of contract and defendant are failed to perform their par of contract?

iv) Whether defendant No. 3 proves that, he is a bonafide purchaser for value?

v) Whether the plaintiff is entitled to the relief of specific performance of contract as claimed in the plaint?

vi) What order or decree?

Plaintiff is examined as P.W.1 and three witnesses have been examined on his behalf. Mr. Chakrapani is examined as D.W. 1 and Mr. P. Venkateshwara Rao is examined as D.W.2. 14 exhibits have been got marked on behalf of the plaintiff and 3 exhibits have been got marked on behalf of the defendants. Ultimately, suit came to be decreed in part rejecting the relief of specific performance. Defendant Nos. 1 and 2 have been directed to pay a sum of Rs. 2.25 lakhs to the plaintiff with 6% p.a. thereon from the date of agreement of sale till realization, vide considered judgment dated 18.12.2007.

The said judgment and decree had been challenged by filing an appeal u/s 96 of CPC in R.A. No. 28/2008 before the Court of FTC at Bellary. The said appeal has also been dismissed after contest. Hence, the plaintiff is before this Court challenging the concurrent findings.

The learned counsel for the appellant has submitted his arguments in regard to admission of the matter. Perused the records. Several questions of law have been proposed to be considered as substantial questions of law.

Issue No. 1 relating to due execution of agreement of sale has been answered in the affirmative. Issue Nos. 2 and 3 have been answered in the negative holding that plaintiff has failed to perform his part of the contract and that defendant No. 3 did not have any notice about the alleged agreement of sale entered into between plaintiff and defendant Nos. 1 and 2 earlier Issue No. 4 has been held in the affirmative stating that defendant No. 3 is a bona fide purchaser and hence, defendant Nos. 1 and 2 have been directed to return the advance amount. These findings virtually have been affirmed by the first appellate Court by reassessing the entire evidence placed on record. Nothing has been culled out from the mouth of the subsequent purchaser to discredit his deposition. Though D.W.2 has been cross-examined at length, nothing has been elicited from his mouth to discredit his deposition in regard to the bona fide enquiries made prior to the purchase of schedule land from defendant Nos. 1 and 2.

P.W.1 himself has admitted that he is doing business and also doing real estate business. One Mr. Khaleel Ahmed is a broker engaged by him. The said Khaleel helps him in doing real estate business. It is his case that he purchases property and converts them into non-agricultural land and thereafter forms layouts and sells them as plots. According to him, defendant No. 1-Chakrapani was brought by Khaleel Ahmed to his office on 20.06.2005. While granting equitable relief of specific performance, the Courts will have to keep several factors in mind. Plaintiff, being a person engaged in real estate business and defendant No. 3 having purchased the property being bona fide purchaser, the trial Court has refused to exercise the discretion to grant the equitable relief of specific performance. The said discretion has not been interfered with the first appellate Court also keeping in mind the parameters found u/s 20(2) of the Specific Relief Act. The first appellate Court has held point No. 4 in the affirmative stating that the trial Court has exercised the discretion judiciously granting the alternative relief of refund of money. The first appellate Court has chosen to frame the following 6 points for consideration as found in page No. 12 and has held points Nos. 1, 2 and 4 in the affirmative and point Nos. 3 and 5 in the negative.

i) Whether the plaintiff/appellant has established that, there was a breach of agreement Ex. P1 by the defendant No. 1 and 2/respondent No. 1 and 2 in executing this registered sale deed in favour of respondent No. 3 as per Ex. P8 by suppressing the previous agreement?

ii) Whether the plaintiff/appellant has established his readiness and willingness to perform his part of contract?

iii) Whether the findings given by the trial Court on issue No. 2 to 4 are erroneous?

iv) Whether the trial Court exercised the discretion, judicially granting the alternative relief?

v) Whether the judgment and decree of the trial court needs to be interfered with?

vi) What order?

The first appellate Court, being the final Court of facts, has reassessed the entire evidence and has tested the same on the touchstone of intrinsic probabilities. In this view of the matter, no good grounds are made out to interfere with the well considered judgment of the trial Court which is affirmed by the first appellate Court. The questions of law proposed in the appeal memo are not the substantial questions of law in essence u/s 100 of CPC. Even otherwise, no substantial questions of law arise in this case so as to interfere with the well considered judgment of the trial Court as well as the first appellate Court. Since the appeal is devoid of merits, it is liable to be dismissed as unfit for admission.

ORDER

The appeal filed u/s 100 of CPC is dismissed as unfit for admission by upholding the judgments of the trial Court as well as the first appellate Court.

There is no order as to costs.