AI Structured Summary
Not yet generated for this judgment
Judgment
This revision is filed challenging the order dated 23.02.2017 in E.A.No.33 of 2016 in E.P.(SR).No.3027 of 2016 in O.S.No.19 of 2016 passed by the IX Additional Chief Judge, City Civil Court, Hyderabad.
The facts of the case, in brief, are as follows:
(a) The respondent/plaintiff filed a suit in O.S.No.19 of 2016 on the file of the X Additional Chief Judge FAC IX Additional Chief Judge, City Civil Court, Hyderabad, seeking specific performance of agreement of sale to direct the petitioner/defendant to execute sale deed in favour of the plaintiff in respect of the suit schedule property by receiving balance sale consideration of Rs.1,10,00,000/- within the time fixed by the Court below. Under judgment dated 18.04.2016, the Court below decreed the suit. The decree is extracted below:
That the suit of the plaintiff be and the same is hereby decreed without costs.
That the plaintiff shall pay the balance consideration of Rs.1,10,00,000/- on or before 15.7.2016.
That the defendant shall execute the registered sale deed on payment of such amount on or before 15.7.2016 and handover the vacant possession.
That the plaintiff is not entitled for specific performance if he has not performed his obligation of paying the balance consideration on or before 15.7.2016 and shall work out his remedy for refund of advance sale consideration by appropriate proceedings.
That there shall be no costs.
(b) The respondent/decree holder filed EA.No.33 of 2016 in EP(SR).No.3027 of 2016 to permit him to deposit the balance sale consideration of Rs.1,10,00,000/- in terms of the decree dated 18.04.2016. In the affidavit filed in support of the EA, the respondent/decree holder stated that he is a Non-Resident Indian and came to India on 11.07.2016 to get the sale deed registered. He issued a notice through his counsel to the petitioner/judgment debtor to appear before the Sub-Registrar on 14.07.2016 at 11 AM for getting the sale deed registered in pursuance of the decree. The judgment debtor having received the notice, did not appear before the Sub-Registrar, though he was ready and willing to pay the balance sale consideration. The decree holder paid the entire registration fee on Rs.12,60,000/- and also obtained a DD for Rs.21,000/- in favour of the Commissioner, GHMC and waited at the Sub-Registrar office on 14.07.2015 and also on 15.07.2016 but judgment debtor did not appear. The decree holder informed the same to the Court below by way of memos vide S.R.No.2693 of 2016 dated 16.07.2016, S.R.No.2720 of 2016 dated 19.07.2016 and S.R.No.2721 of 2016 dated 19.07.2016. The decree holder filed EP, which was returned with objections on 09.08.2016. The EP was filed as the judgment debtor neither received the balance sale consideration nor delivered physical possession of the suit schedule property. Hence, the decree holder requested the Court below to permit him to deposit the balance sale consideration to the credit of the suit.
(c) In the counter to EA.No.33 of 2016, the judgment debtor stated that the petition is not maintainable in law or on facts. The balance sale consideration was payable by the decree holder on or before 15.07.2016, upon which the sale deed shall be executed and physical possession to be delivered. The decree holder has not deposited the amount on or before 15.07.2016 as per the decree. The decree holder posted a letter containing a blank A4 paper to him on14.07.2016 with a malafide intention and he received the said letter at 5 PM. Hence, the question of attending the SRO does not arise. Mere payment of registration fees and charges in favour of the Commissioner, GHMC, cannot be taken into consideration.
The Court below passed the impugned order allowing the petition in E.A.No.33 of 2016 filed by the decree holder. It was held that the decree holder has shown bonafides by paying the registration fees and in respect of balance sale consideration, cheques were issued in the name of the judgment debtor along with the account statement and draft sale deed. The decree holder was permitted to deposit Rs.1,10,00,000/- to credit of the suit for execution of the registered sale deed within 15 days.
Mr. Vedula Venkataramana, learned senior counsel appearing for the petitioner/judgment debtor, submitted that the order passed by the Court below is erroneous and unsustainable. The Court below could not have travelled beyond the decree. The decree passed by the Court below is a conditional decree. The respondent/decree holder did not pay the balance sale consideration on or before 15.07.2016. As per point No.4 of the decree, it was specifically pointed out that the plaintiff/decree holder is not entitled for specific performance if he does not perform his obligation of depositing the balance sale consideration on or before 15.07.2016 and he shall work out his remedy for refund of advance sale consideration by way of appropriate proceedings. The decree, being conditional, has become unenforceable, since the plaintiff/decree holder failed to pay the balance sale consideration on or before 15.07.2016. The plaintiff/decree holder has not filed any application for extension of time under Section 28(3) of the Specific Relief Act. The executing Court does not have power to permit the petitioner to deposit the balance sale consideration as the same would amount to traveling beyond the scope of the decree.
On the other hand, Mr. Mayur Mundra, learned counsel for the respondent/decree holder, submitted that the application filed in EA.No.33 of 2016 under Section 151 CPC is maintainable in law. Such application is not filed for extension of time. There was a direction in the decree to the respondent/decree holder to pay the balance sale consideration on or before 15.07.2016. In compliance thereof, the respondent/decree holder addressed a letter dated 14.07.2016 to the petitioner/judgment debtor to appear before the Sub-Registrar Office for the purpose of registering the sale deed by receiving the balance sale consideration. The respondent/decree holder had made all arrangements for registration of the sale deed well before 14.07.2016. Hence, there are no merits in this revision petition and the same is liable to be dismissed.
Heard the learned senior counsel for the petitioner and the counsel for the respondent.
The decree does not say as to how the balance sale consideration has to be paid by the respondent/decree holder to the petitioner/judgment debtor on or before 15.07.2016. On 14.07.2016, the respondent/decree holder paid the registration fees of Rs.12,60,000/- and DD for Rs.21,000/- in favour of the Commissioner, GHMC. The record discloses that the letter dated 14.07.2016 was addressed by the respondent/decree holder to the petitioner/judgment debtor. The petitioner/judgment debtor contended that he received the letter at 5 PM on 14.07.2016 but it contained a blank paper. The respondent/decree holder filed memos vide S.R.Nos.2720 and 2721 of 2016 dated 19.07.2016 in proof of the fact that he addressed letter to the petitioner/judgment debtor to appear before the Office of the Sub-Registrar for the purpose of registering the sale deed. The Court below having noted that the respondent/decree holder has shown bonafides, allowed the EA. Before formally filing the execution petition, the respondent/decree holder filed an application under Section 151 CPC in EA.No.33 of 2016 for depositing the amount.
On directions of this Court, the counsel for the respondent filed documents which were part of the lower Court record vide USR.No.39104 of 2017 dated 14.07.2021. The documents disclose that legal notice dated 13.07.2016 was addressed by the respondent intimating the petitioner that the respondent is ready to pay balance sale consideration of Rs.1,10,00,000/-, registration charges of Rs.12,60,000/- have been paid to the registration department and DD for Rs.21,000/- had been obtained in favour of the Commissioner, GHMC. The notice sent through RPAD was served on the petitioner. It is not dispute that the petitioner has signed the acknowledgement card on 14.07.2016 at 5 PM. The four cheques, all dated 14.07.2016, drawn on Canara Bank, Pathergathi Branch for total sum of Rs.1,20,00,000/- have made ready by the respondent. The statement of the bank accounts of the respondent proves that the respondent has sufficient funds to honour the cheques. The documents clearly show that the respondent was ready and willing to pay the balance sale consideration of Rs.1,10,00,000/- and get the sale deed registered on or before 15.07.2016.
It was contended by the petitioner that immediately after the receipt of legal notice dated 13.07.2016 issued by the respondent, he gave a reply notice through legal notice dated 14.07.2016 stating that he received an empty A4 size paper in the postal cover sent by the respondent.
This Court finds such contention is unacceptable in view of the fact that the respondent file a memo before the Court below on16.07.2016 as party-in-person stating that he was ready with the balance sale consideration, paid registration charges and obtained DD in favour of the Commissioner, GHMC and waited at the office of the Sub-Registrar on 14.07.2016 and 15.07.2016 for the petitioner to register the document. Further memos dated 19.07.2016 and 01.08.2016 were filed by the respondent through his counsel reiterating the contents of memo dated 16.07.2016.
Learned counsel for the respondent relied on the following decisions:
ASIA BEGUM (DIED) BY LRs. v. MAHMUDA BEGUM 2010 (1) ALD 389; DAPARTHI SEETHARAMAYYA v. KURKURI CHINNA SATYAM 2014 (1) ALD 762 (DB); VALLEPU ANKAMMA v. PALLAPU KONDAIAH 2014 (3) ALD 126 and L. VENKATA KRISHNA REDDY v. M. ANJAPPA (DIED) PER LRS 2009 (4) ALD 222.
The decisions in ASIA BEGUM’s case (2010 (1) ALD 389 supra) and VALLEPU ANKAMMA’s case (3 supra) are distinguishable on facts.
In DAPARTHI SEETHARAMAYYA’s case (2014 (1) ALD 762 (DB) supra), it was held as under:
“…Though there are certain precedents to the effect that the readiness and willingness must be continuous in nature, it is essential that at least when the money became payable under the agreement or when the plaintiff called upon the defendants to execute the sale deed, he must show to the satisfaction of the Court that he was possessed of the requisite amount ...”
In L. VENKATA KRISHNA REDDY’s case (2009 (4) ALD 222 supra) it was held as under:
“As a matter of fact, Section 28 of the Specific Relief Act, 1963, does not enable the decree-holder to seek extension of time but it is the discretion to be exercised by the Court in an application by the judgment-debtor to rescind the contract having regard to the facts and circumstances of the case. Therefore merely on the ground that the decree-holders failed to seek extension of time, the Revision petitioners/judgment-debtors are not entitled to rescission of contract under Section 28 of the Specific Relief Act.”
The contention of the learned senior counsel that there is no application filed under Section 28(3) of the Specific Relief Act for extension of time, as such, the Court below could not have permitted the respondent/judgment debtor to deposit the balance sale consideration is without merit. It is immaterial whether the balance sale consideration is deposited to the credit of the suit or EP. The respondent/judgment debtor chose to file EA.No.33 of 2016 in order to comply with the conditions in the decree. This Court does not find any illegality in the said procedure adopted by the respondent/decree holder.
The Court below, on being satisfied, that the respondent/decree holder had made arrangement for payment of stamp duty, registration fees and DD in favour of the Commissioner, GHMC, allowed the EA under the impugned order. This Court does not find any illegality or error in the order passed by the Court below.
The civil revision petition is devoid of merits and it is accordingly dismissed. Pending miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.