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Judgment
Plaintiffs are the appellants. OS.239 of 1979 on the file of the II Additional Subordinate Judge, Visakhapatnam was filed by the plaintiffs for specific performance of contract of sale dated 23-9-1978.
For the sake of convenience the parties in this appeal will be referred to as per their status in the suit.
The averments in the plaint, in brief, are as follows:
The plaintiffs are the wives of brothers and their respective husbands are doing business. The plaintiffs have executed a power of attorney in favour of the 2nd plaintiffs husband for filing the present suit. The suit site is 105sq.ft. x 40 ft. in extent and it is situated in Daba Gardens, Visakhapatnam. For the purpose of extending their business, the plaintiffs wanted to purchase the suit site for construction of shops. At that time, the 1st defendant agreed to sell the suit property for a sum of Rs. 1,05,000/- and the plaintiffs also agreed to purchase the same for the said price. Accordingly the 1st defendant executed a contract of sale on 23-9-1978. As per the terms of the contract of sale the plaintiffs paid a sum of Rs. 1,000/- at the time of execution of the contract to the 1st defendant and they agreed to pay a sum of Rs.39,000/-on 27-9-1978 and obtain a receipt from the 1st defendant. The period for completing the contract of sale was fixed as 12 months and the balance of sale consideration of Rs.65,000/- was agreed to be paid at the time of the execution of registration of the sale deed, and on such payment the 1st defendant shall deliver possession of the suit schedule property. It is further stated in the plaint that after the execution of the contract of sale the plaintiffs came to know that the 2nd defendant herein filed a suit in OS No.88 of 1978 on the file of the Subordinate Judge, Visakhapatnam against the 1st defendant and they compromised in the said suit and in pursuance of the compromise the 1st defendant executed a sale deed for an extent of 200 square yards out of the present suit schedule property. After receiving the sum of Rs.39,000/- from the plaintiffs, the 1st defendant filed a petition to record full satisfaction in OS No.88 of 1978 alleging that he paid Rs.25,000/- to the 2nd defendant and that the 2nd defendant agreed to relinquish his rights in the 200 square yards which is part of the suit site and that the said petition was dismissed. The matter was carried in revision to the High Court of Andhra Pradesh by the first defendant. It is also contended that the 1st defendant played fraud on the plaintiffs at the time of contract of sale by riot disclosing about the suit in OS No.88 of 1978 and hence the decree and judgment in OS No.88 of 1978 are not binding on the plaintiffs. The said judgment and decree will not create any right or title in the 2nd defendant for the 200 square yards site. It is also the contention of the plaintiffs that they were always ready and willing to perform their part of the contract and that they got issued a legal notice on 11-6-1979 calling upon the 1st defendant to execute a regular sale deed with a copy marked to the 2nd defendant. Both defendants 1 and 2 gave a reply with untenable pleas. The 3rd defendant who is a tenant is added as a pro-forma party without any relief against him. Hence the plaintiffs filed the present suit for specific performance of the contract of sale dated 23-9-1978.
The 1st defendant resisted the suit contending that the execution of the contract of sale in favour of the plaintiffs is correct and that he received Rs.1,000/- on 23-9-1978 and that when the contract was executed he also received a further sum of Rs.39,000/- on 27-9-1978. At the time of execution of contract of sale it was agreed between the parties that the time for completing the performance shall be only six months and that it was so written in the contract of sale. It was agreed that time shall be the essence of the contract. The plaintiffs failed to obtain the regular sale deed within six months as agreed. The 1st defendant is at liberty to sell the property to somebody and pay Rs.25,000/- to the plaintiffs. The 1st defendant also admitted about the filing of the suit OS.88 of 1978 by the 2nd defendant and about the compromise decree for 200 square yards which is part of the suit site.
The 2nd defendant also filed a written statement contending that on the date of the contract of sale in favour of the plaintiffs dated 23-9-1978 the 1st defendant had no title for the said extent of 200 square yards and that in accordance with the compromise decree the 2nd defendant obtained a decree and sale deed was executed through Court. The 2nd defendant is the owner of 200 square yards out of the suit site and the 1st defendant cannot convey any title to the said site in favour of the plaintiffs and that the contract of sale in favour of the plaintiffs has become impossible for performance since a substantial portion of the suit site has already been conveyed to the 2nd defendant and the 1st defendant has to title to that extent and hence the suit has to be dismissed.
Based on the afore-mentioned pleadings, the trial Court framed issues addressing itself as to whether the plaintiffs are entitled for specific performance of the contract, and whether the contract has become an impossibility of performance and whether the contract of sale is hit by lis pendens.
Based on the oral and documentary evidence the trial Court has dismissed the suit. Hence the present appeal.
Sri P. Sriraghuram, the learned Counsel for the appellants has contended that the plaintiffs were always ready and willing to perform their part of the contract and that the 1st defendant suppressed the earlier suit proceedings and hence the plaintiffs are entitled for a decree for the remaining portion of the site. It is to be noticed that even by the date of agreement of sale the compromise decree has already been passed and the 1st defendant did not have title to convey the suit schedule property. The site in dispute originally belonged to one Ms. Victoria. She executed a contract of sale in favour of the 1st defendant in the year 1970. In 1972 the 1st defendant executed a contract of sale for a portion of the said site in favour of the 2nd defendant. Later the 1st defendant filed a suit for specific performance of the contract against the said Ms. Victoria and obtained a decree. In pursuance of the said decree the Court executed a sale deed in favour of the 1st defendant on 30-6-1975. This title deed in favour of the 1st defendant is Ex.A4. Later the 2nd defendant filed a suit in OS No.88 of 1978 on the file of the Subordinate Judge, Visakhapatnam, for specific performance of contract of sale for a portion of the suit site executed by the 1st defendant in his favour. That suit was compromised and a compromise decree was passed in terms of the said decree against the 1st defendant herein in favour of the 2nd defendant. As per the said decree which is dated 18-9-1979 the 1st defendant was directed to execute a sale deed for 200 square yards of site which is part of the suit schedule site within three months. Within this period the 1st defendant executed a contract of sale for the total extent of the suit site in favour of the plaintiffs on 23-9-1978. The plaintiffs contended that they are not aware of the proceedings in OSNo.88 of 1978 on the date when the 1st defendant executed the contract of sale in their favour. Defendants 1 and 2 contend that they are aware of the said proceedings and it is further contended by the 1st defendant that he took Rs.39,000/- on 27-8-1978 only for the purpose of paying a sum of Rs.26,500/- to the 2nd defendant for relinquishing his right in a portion of the suit schedule property which he got as per the decree in OS No.88 of 1978. It is his contention that he paid the amount to the 2nd defendant as agreed and filed EA No.896 of 1978 in OS No.88 of 1978 for recording full satisfaction. When the above said EA was pending the plaintiffs also filed EA No.1014 of 1978 to implead them as petitioners in EA No.896 of 1978. The Court dismissed both the petitions filed by the plaintiffs and the 2nd defendant herein. The plaintiffs did not pursue the mailer but filed the suit. The 1st defendant herein filed CRP No.668l of 1979 on the file of the High Court of A.P against the order in EA No.896 of 1978 in OS No.88 of 1978 but the said revision was also dismissed. The plaintiffs contended in the trail Court that since the 2nd defendant has no title, they are entitled for specific performance of contract as per the terms of the suit contract. It is their contention that the period agreed for completing the contract is 12 months and there is a correction to that effect in Ex.A2 agreement whereas the defendants contended that it is only six months. Time is the essence of the contract. The plaintiffs in support of their contention examined the scribe of the document as PW3. The power of attorney of the plaintiffs, who was present at the time of Ex.A2, was examined as PW4. PW1, who is the 1st plaintiff, states that both the plaintiffs were not present at the time of execution of Ex.A2. She further states that PW.4 was looking after the transaction. The evidence of PW3, who is the scribe, and the evidence of PW2 with regard to the alteration of time for execution of sale deed has to be considered. PWs.3 and 4 deposed that the said alteration of six months into 12 months was made at the time of execution of Ex.A2. There is so much material to show that PW3 is supporting the plaintiffs in the suit by his evidence. Hence it cannot be said that there is any material alteration regarding the time fixed for the contract.
In, this appeal Sri P. Sriraghuram, learned Counsel for the appellant placed strong reliance on Section 12 of the Specific Relief Act for the purpose of establishing that the plaintiffs are entitled to specific performance of a part of the contract. He placed strong reliance on Section 12(3) (i) and (ii) for the purpose of establishing that the plaintiffs will be entitled to have agreement of sale for the balance of 200 square yards. At this juncture it is necessary to look into the contents of plaint which forms part of the pleadings. In the plaint there is no averment that the plaintiffs are ready and willing to take the sale deed for the balance of 200 square yards. From the record it is clear that they were aware of the earlier suit proceedings wherein they tried to intervene in the execution proceedings. Having knowledge of the earlier proceedings the plaintiffs ought to have prayed for specific performance of part of the contract. On the identical facts the High Court of Kerala in Sanku Balakrishnan v. Roman Kunjikrishnan, AIR 1982 NOC 18 (Kerala) had an occasion to interpret Section 12 of the Specific Relief Act and the enforceability regarding some portion of the property. The Court relying on an earlier judgment of the Bombay High Court reported in Bhaurao Shamrao Bhalme and Others Vs. Mahadeo Raghu Yelekar, held as follows:
"When the Court finds that only a small portion of the contract could be performed, whether the relief of specific performance is to be granted or not cannot be determined automatically in a suit where the plaintiffs pleads only for the specific performance of the whole contract. If the plaintiff seeks performance, in the alternative of that part of the contract that could still be performed, however small that may be, he must plead appropriately, for, it is only on such pleadings that questions calling for decision within the scope of Section 12(3) can be decided by the Court. On appropriate pleading by plaintiff, they will have to be answered by defendant. Where there is no such pleading, relief with regard to enforcement of a portion only will not be granted."
In view of the afore-mentioned decisions and my discussion, I am of the opinion that the plaintiffs are not entitled to specific performance of agreement of sale. The plaintiffs (appellant herein) filed a petition in CMP No.8757 of 1997 in this Court seeking to amend the plaint under Order 6 Rule 17 CPC. By virtue of this amendment the appellants seek an alternative relief of refund of Rs.65,000/- being the advance paid to the 1st defendant as part payment of the purchase money. The trial Court would have granted refund of the advance but for the fact that there was no such prayer in the plaint. Taking into consideration the facts and circumstances of the case I permit the appellants to amend the plaint and also direct the 1st defendant to refund the sum of Rs.65,000/- to the appellants with interest at @ 12% p.a. from the date of the agreement till the date of payment.
With the afore-mentioned direction the appeal is allowed in part. There will be no order as to costs.