Dismissed

Kallepalli Satyanarayana Raju v. Josyula Prabhakara Sastry

Andhra Pradesh HC19 Feb 2020CRP/2169/2019

Case brief

AI extract

What is this about?

Single judge dismissed civil revision petitions challenging the trial court's extension of time for deposit of balance sale consideration. The court held that pendency of appeals did not preclude plaintiffs from proving readiness and willingness to deposit funds.

What did the court decide?

Civil Revision Petitions C.R.P. Nos.2171, 2169, 3027 and 3078 of 2019 dismissed. Pending interlocutory applications closed.

Kallepalli Satyanarayana Raju Vs Josyula… — Specific Performance | Andhra Pradesh HC (2020)

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THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR

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C.R.P. Nos.2171, 2169, 3027 and 3078 of 2019

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COMMON ORDER :

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C.R.P. Nos.2171 and 2169 of 2019

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Assailing the orders dated 25.6.2019 passed in I.A. No.13 of 2019 in O.S. No.524 of 2005 and in I.A. No.12 of 2019 in O.S. No.521 of 2005 on the file of the II Additional Senior Civil Judge, FAC V Additional Senior Civil Judge, Vijayawada, the present Civil Revision Petitions are filed.

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The facts in issue show that the 1^st respondent-plaintiff filed the above suits for specific performance of an agreement of sale, which were decreed on 22.10.2018 with a direction to the plaintiff to pay balance sale consideration of Rs.1,76,972/and Rs.1,51,972/- respectively within three months from the date of decree and get the document registered. Defendants 2 to 4 and defendant No.1 respectively were directed to execute the registered sale deeds in favour of the plaintiffs and also to deliver possession of the plaint schedule properties to the plaintiffs. It is averred in the affidavit filed in support of the I.A that though the decree was passed on 22.10.2018, defendants did not approach the plaintiff for payment of balance sale consideration. It is stated that as the period of three months was expiring, they got issued a notice to defendants informing lapse of time and also their willingness to deposit the amount in any of the accounts of defendants 2 to 4 and defendant No.1 respectively or deposit the amount to the

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credit of the suit. The said notice was issued on 3.1.2019 through registered post, but, however, the same was not received, though it was sent to the correct address. As the period of three months was going to lapse and there was no cooperation from the defendants 2 to 4 and defendant No.1 respectively, they filed I.A. No.13 of 2019 in O.S. No.524 of 2005 and I.A. No.12 of 2019 in O.S. No.521 of 2005 respectively seeking extension of time to deposit the amount. The said petitions were allowed on 25.6.2019; against which, the defendants 1 to 4 in O.S. No.524 of 2005 preferred C.R.P. No.2171 of 2019 and defendant No.1 in O.S. No.521 of 2005 preferred C.R.P. No.2169 of 2019.

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Sri P.N.Murthy, learned counsel for the petitioners, would contend that the conduct of the plaintiff in both suits in not paying the balance sale consideration within the time prescribed has to be viewed with suspicion. It is said that challenging the decrees, appeals came to be filed, in which notices were ordered to the plaintiffs and only after service of notices, these applications came to be made seeking extension of time. If really their intention was to make payment, definitely they would not have waited till the expiry of three months. According to him, their conduct in filing the application on 21.1.2019 and also filing vakalat in the appeals on 21.1.2019 itself shows their conduct. Having regard to the above, it is urged that the reasoning given by the trial court in accepting the plea of the plaintiffs for extension of time when the appeals are filed and when the appellate court is seized of the matter, cannot be accepted.

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On the other hand, Sri V.S.R.Anjaneyulu, learned counsel for respondent-plaintiff, would contend that in view of the judgment of the Apex Court in Ravi Setia v. Madan Lal¹ , there is no illegality or irregularity in the order of the trial court. According to him, a reading of the affidavit would disclose that they not only sought for extension of time, but also expressed their willingness to perform their obligation. Though they issued a notice on 3.1.2019, there was no response from the defendants. Left with no option, they made the present applications which were rightly allowed.

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As seen from the record, the suit was decreed on 22.10.2019 with a direction to the defendants 2 to 4 in O.S. No.524 of 2005, who are the legal representatives of defendant No.1, and to the defendant No.1 in O.S. No.521 of 2005, to execute a registered sale deed in respect of the plaint schedule property by receiving balance consideration of Rs.1,76,972/- and 1,51,972/- respectively from the plaintiffs within three months from the date of decree. Failing which, the plaintiffs were entitled to execute the same under due process of law. The Court also directed D2 to D4 and D1 respectively to deliver possession of the plaint schedule property and they were restrained from alienating the properties to others. Challenging the same, appeals came to be filed vide A.S. No.316 of 2018 and A.S. No.315 of 2018 before the XIII Additional District Judge, Vijayawada. Notices came to be issued in the said appeals, but no order of any stay or direction by the appellate court is placed on record.

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1 AIR 2019 SC 4791

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The material on record also shows that when the defendants did not approach the plaintiffs in both suits to accept the consideration and as the time of three months was getting closure, they issued a legal notices on 3.1.2019 to the defendants by registered post with acknowledgment due expressing their willingness to deposit the amount in any of the accounts of defendants 2 to 4 and defendant No.1 respectively or to the credit of the suit. Though it was sent to the correct address, but, for the reasons best known, they avoided to receive the same, because of that, an application came to be filed on 21.1.2002 seeking extension of time.

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The question is whether the trial court was justified in extending the time. Issue identical to the case on hand came up for consideration before the Apex court in Ravi Setia’s case (supra). It was as case where plaintiff failed to offer any reasonable explanation as to why balance consideration was not deposited within the time granted. Filing of explanation seeking extension of time after the expiry of prescribed period, was coupled with frivolousness grounds taken in the application for extension namely that the money would lie in the bank earning interest, which is reflective of lack of readiness and willingness. Dealing with the same, the Apex Court in para 10 of the said judgment held as under :

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“10. The grant of relief for specific performance under Section 16(1)(c) of the Act is a discretionary and equitable relief. Under Section 16(1)(c), the plaintiff has to demonstrate readiness and willingness throughout to perform his obligations under the contract. The plea that the amount would lie in the bank without interest is unfounded and contrary to normal banking practice. To our mind, this is sufficient evidence of the incapacity or lack of

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readiness and willingness on part of the plaintiff to perform his obligations. Undoubtedly, the time for deposit could be extended under Section 28 of the Act. But the mere extension of time for deposit does not absolve the plaintiff of his obligation to demonstrate readiness and willingness coupled with special circumstances beyond his control to seek such extension. The plaintiff did not aver in the application that he was ready and willing to perform his obligations and was prevented from any special circumstances from doing so. The pendency of an appeal by the defendant did not preclude the plaintiff from depositing the amount in proof of his readiness and willingness. Readiness has been interpreted as capacity for discharge of obligations with regard to payment. The High Court has rightly observed that there was no stay by the Appellate Court of the decree under appeal to justify non-deposit during the pendency of the appeal. The grant of extension of time cannot ipso facto be construed as otherwise demonstrating readiness and willingness on part of the plaintiff. The plaintiff was required to plead sufficient, substantial and cogent grounds to seek extension of time for deposit because otherwise it becomes a question of his conduct along with all other attendant surrounding circumstances in the facts of the case. We therefore find no infirmity in the order of the High Court concluding that the plaintiff in the facts and circumstances was not ready and willing to perform his obligations.”

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From a reading of the above it is very clear that mere extension of time for deposit does not absolve the plaintiff from his obligation to demonstrate readiness and willingness. Further, pendency of the appeal by the defendant does not preclude the plaintiff from depositing the amount in proof of his readiness and willingness. It was also a case where there was no stay or any order from the appellate court. The court went on to hold that grant of extension of time cannot ipso facto be construed as otherwise demonstrating readiness and willingness on part of the plaintiff.

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In the instant case, as seen from the notice and also from the averments in the petition, the plaintiff not only sought time for

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depositing amount, but he gave reasons as to why the amount could not be deposited within the time. Apart from that, the notice as well as the application filed before the Court show their willingness to perform their obligation as per the terms of the decree. The notices issued by the plaintiffs to defendants 2 to 4 and defendant No.1 respectively seeking their account numbers for depositing the amounts were not answered, though it was sent to the correct address. From the judgment of the Apex Court, it is very clear that mere filing of an appeal does not prevent the plaintiff to make an application seeking time; provided, he satisfies the other requirements, namely, expressing his readiness to perform his obligation, which is reflected in the documents filed. More over, it is also to be noted here that the applications seeking extension came to be filed before the expiry of three months time fixed by the trial court in the judgments in the main suit.

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Hence, I see no reason to interfere with the orders passed by the trial court extending time for deposit of the amounts.

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Accordingly, Civil Revision Petition Nos.2171 and 2169 of 2019 are dismissed. No order as to costs.

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Consequently, interlocutory applications pending, if any, shall stand closed.

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C.R.P. Nos.3027 and 3078 of 2019

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Assailing the order dated 25.6.2019 passed in I.A. No.26 of 2019 in O.S. No.524 of 2005 and in I.A. No.27 of 2019 in O.S. No.521 of 2005 on the file of the II Additional Senior Civil Judge, FAC V Additional Senior Civil Judge, Vijayawada, wherein the

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petitions filed by the defendant No.1 in both suits to rescind the contracts of sale dated 28.2.2002 by annulling the decrees dated 22.10.2018 were dismissed, the present Civil Revision Petitions are filed.

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Consequent to the above order in C.R.P. Nos.2171 and 2169 of 2019 and as I.A. No.13 of 2019 and I.A. No.12 of 2019 respectively were filed within time and as they were allowed, the trial court has rightly refused to rescind the contract of sale dated 28.2.2002 by annulling the decree dated 22.10.2018.

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Hence, I see no reason to interfere with the orders passed by the trial court dismissing the petitions to rescind the contracts of sale.

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Accordingly, C.R.P. Nos.3027 and 3078 of 2019 are also dismissed. No order as to costs.

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Consequently, interlocutory applications pending, if any, shall stand closed.

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______________________________ JUSTICE C. PRAVEEN KUMAR

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Date : 19.02.2020

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skmr

Kallepalli Satyanarayana Raju v. Josyula Prabhakara Sastry

Case brief

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Kallepalli Satyanarayana Raju v. Josyula Prabhakara Sastry

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