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Kommisetti Venkatasubbayya Vs. Karamsetti Venkateswarlu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No.576 of 1968
Judge
Reported inAIR1971AP279
ActsSpecific Relief Act, 1877 - Sections 23; Indian Contract Act, 1872 - Sections 51
AppellantKommisetti Venkatasubbayya
RespondentKaramsetti Venkateswarlu and ors.
Appellant AdvocateA. Gangadhara Rao, Adv.
Respondent AdvocateK. Raghava Rao and ;N. Subba Reddy, Adv.
Excerpt:
property - false plea - section 23 of specific relief act, 1877 and section 51 of indian contract act, 1872 - suit for specific performance and recovery of possession dismissed - dismissal on grounds of unwillingness of plaintiff to perform his part of contract and claim of payment which was proved to be false - second appeal filed contending finding of lower court that plaintiff unwilling to perform part of contract not true - claim of plaintiff to have paid substantial part proved to be false by both courts - plaintiff is ready to pay entire balance of purchase money he is not entitled to decree for specific performance - held, lower court justified in refusing to exercise discretion in favour of plaintiff who had set up false plea of payment of money. - 1. the plaintiff is the appellant. his filed a suit for specific performance of an agreement of sale ex, a-1 executed by the 1st defendant on behalf of himself and the 2nd defendant on 24-4-1960 agreeing to sell a house site in kavali. he paid rs. 50/- on the date of execution of the agreement and he avers that he paid a further sum of rs. 1500/- on 14-10-1960 receiving which the defendants put him in possession of the suit site. he says that he has been ready and willing to perform his part of the contract and called upon the defendants by a notice dated 10-10-1961 (ex. a-13) to execute a sale deed after receiving the balance of the purchase money. 2nd defendant however sole the suit site to 3rd defendant under ex. b-9 dated 14-11-1963 and the 3rd defendant in turn sold the same to 4th.....
Judgment:

1. The plaintiff is the appellant. His filed a suit for specific performance of an agreement of sale Ex, A-1 executed by the 1st defendant on behalf of himself and the 2nd defendant on 24-4-1960 agreeing to sell a house site in Kavali. He paid Rs. 50/- on the date of execution of the agreement and he avers that he paid a further sum of Rs. 1500/- on 14-10-1960 receiving which the defendants put him in possession of the suit site. He says that he has been ready and willing to perform his part of the contract and called upon the defendants by a notice dated 10-10-1961 (Ex. A-13) to execute a sale deed after receiving the balance of the purchase money. 2nd defendant however sole the suit site to 3rd defendant under Ex. B-9 dated 14-11-1963 and the 3rd defendant in turn sold the same to 4th defendant under Ex. B-6 dated 21-5-62 (sic) 4th defendant also alienated the site in favour of 5th defendant under Ex.B-7 dated 27-9-1963. The 5th defendant trespassed on the land on 11-11-1963. The plaintiff has therefore filed the suit for specific performance and recovery of possession of the suit site. While the second defendant remained ex parte, 1st defendant pleaded that time was the essence of the contract and the plaintiff recessed the contract and that he therefore sold it to the 3rd defendant. Defendants 3 to 5 claimed to be bona fide purchasers for value without notice of the agreement of sale in favour of the plaintiff and prayed for the dismissal of the suit.

2. The trial Court, on a review of the evidence, found that time was not the essence of the contract that there was no rescission of the contract by the plaintiff, that defendants 3 to 5 re not bona fide purchasers for value, that plaintiff was put in possession of the suit site in pursuance of the agreement and that he was also ready and willing to perform his part of the contract. But it held that the plaintiff did not pay Rs. 1500/- on 14-10-1960 as pleaded by him. In view of the above finding, the plaintiff's suit was decreed subject to the condition that he paid not only the balance of the consideration but also Rs.1500/-. Defendants 3 to 5 preferred an appeal as also the plaintiff. Both the appeals were disposed of by a common judgment. During the pendency of the appeal the 5th defendant dies and defendants 6 to 8 were brought on record as L.Rs The Lower appellate Court agreed with the finding of the trial court that the plaintiff did not pay Rs.1500/-. It also found, disagreeing with the trial court that the plaintiff was not willing to perform his part of the contract on and form October, 1961. In that view, it allowed the appeal preferred by defendants 3 to 5 and dismissed the plaintiff's appeal.

3. The plaintiff in the appeal contends that the finding of the lower court that the plaintiff was not ready and willing to perform his part of the contract on and form October, 1961 is perverse, In fact he had given a notice, Ex. A-13 dated 10-10-1961 expressing his readiness and willingness to perform his pat of the contract to which defendants did not choose to reply. The mere fact that he had withdrawn a sum of Rs.1400/- from the bank and that his time of the institution of the suit does not warrant the conclusion that he was not willing to perform his part of the contract. It is not necessary to go into this question in view of my finding on the other grounds on which the decree of dismissal of the suit rests.

4. The plaintiff had averred in the plaint that he had paid a sum of Rs.1500/- on 14-10-1960 and has stated in para 8 of the plaint that

'the plaintiff has still to pay the 1st defendant Rs,14-10-50 after deducting the sum of Rs.1500/- already paid to him. The plaintiff us ready to pay that amount and bear half of the stamp and registration expenses for the execution of the sale deed.'

The statement that he had already paid Rs.1500/- has now been found to be not true by both the courts and that finding of fact cannot be disturbed and in fact was not seriously challenged by Mr.A.Gangadhara Rao, learned counsel for the appellant. That being so, it must be taken that the averment in that plaint that he laid paid a sum of Rupees 1500/- on 14-10-1960 is not true. In stating that he was reedy and willing to perform his part of the contract, it must be taken that he was ready and willing to pay Rs.272-50 Ps. which was the balance payable according to him under Ex. A-1 and not that he was ready and willing to pay Rs., 1772-50 Ps. which was due and payable by the plaintiff according to the finding of the court below. Unless the readiness and willingness of the plaintiff was to pay the entire balance of the purchase money. he is not entitled to a decree for specific performance. In issuing the demand notice dated 10-10-1961 also what he could have mean was that he was ready and willing to pay 272-50 Ps. and not Rs.1771-50 Ps. that was really due from him. Irrespective of any other fact, the averment in the paint and the notice is sufficient to hold that he was not ready and willing to perform his part of the obligation under Ex. A-1. That apart, the plaintiff who seeks equitable remedy of specific performance must come to the court with clean hands. He held by a Division Bench of the Madras High Court in Subbarayudy v. Tatayya, 1937 Mad WN 1158 that where the plaintiff seeking the releif of specific performance puts forth a false plea, he would be disentitled to the quitable and justified relief of specific performance. Reliance was placed by Mr. Gangadhara Rao, learned counsel for the appellant on a judgment of this court in Buchiraju v.Sri Ranga Satyanarayana, AIR 1967 Andh Pra 69. But, that case was carried in appeal to the Supreme Court and the Supreme Court by a judgment in Civil Appeal No. 1076 (N) of 1966 (SC) reversed the decision of this court and held as follows:-

'The plaintiffs had set up a false case that they had offered on June 4, 1953 to the first defendant the balance of the purchase price due, and they sought to support that case by leading evidence which was to their knowledge false. It is true that the trial court and the District Court have held that after June 4, 1953 the plaintiffs were read and willing to perform their part of the contract and under the terms of the agreement of sale, time was not of the essence, but having regard to their conduct the plaintiffs were not entitled to a decree for specific performance. the question whether in the circumstances of the case the claim of the plaintiff for specific performance may be decrees being within the discretion of the trial court and the District Court the High Court could not interfere with the exercise of the discretion unless the order was shown to be arbitrary or patently, erroneous in law. ... ... ... ... ... ... ... ... ... ... ...

the exercise of discretion (by the trial Court and District Court) against the claim made by the plaintiff was not arbitrary but was reasonable and guided by judicial principles. The High Court could not, sitting in second appeal, interfere with the exercise of jurisdiction merely because the District Court refused relief on specific performance also on the ground of delay.'

In this case, the lower appellate court has refused to exercise the discretion in favour of the plaintiff who had set up false plea of payment money. The plaintiff, in my view, was not only disentitled to the discretionary relief on the ground that he has set up a false plea but also on the ground that that discloses that he was not ready and willing to perform his part of the contract.

5. The second appeal therefore fails and is accordingly dismissed with costs, No leave.

6. Appeal dismissed.


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