In this civil miscellaneous appeal, the High Court of Andhra Pradesh dismissed the appeal filed against the order dismissing an application for interim injunction in a specific performance suit. The court held that the appellant failed to demonstrate readiness and willingness to perform by depositing the balance consideration.
No costs awarded.
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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
MONDAY, THE TWENTY NINTH DAY OF MARCH TWO THOUSAND AND TEN
PRESENT
THE HON'BLE SRI JUSTICE K.C.BHANU
CIVIL MISCELLANEOUS APPEAL NO. 55 OF 2008
Between :
Mohammad Saleem .... Appellant.
A N D
Surisetty Samuel Satyanandam …Respondent
THE HON'BLE SRI JUSTICE K.C. BHANU
CIVIL MISCELLANEOUS APPEAL NO. 55 OF 2008
J U D G M E N T:
This Civil Miscellaneous Appeal, under Order XLIII Rule 1 ( r) of the Code of Civil Procedure, 1908, is directed against the order, dated 03.12.2007, in I.A. No.818 of 2007 in O.S.No.1163 of 2007, on the file of I Additional Senior Civil Judge, Visakhapatnam, whereunder and whereby the application filed to grant interim injunction restraining the respondent from alienating the suit schedule property to third parties, pending disposal of main suit, was dismissed.
2. Heard both sides.
3. It is contended by the learned counsel for the petitioner that the petitioner paid an amount of Rs.2,05,000/- on 24.01.2007, and Rs.2,00,000/on 25.01.2007, towards sale consideration, and that he is ready to pay
balance sale consideration.
4. On the other hand, the learned counsel for the respondent contended that the petitioner filed the suit for specific performance of agreement of sale dated 05.02.2007. The respondent filed counter stating that he was ready and willing to perform his part of contract and ready to execute a sale deed. But the petitioner has not been coming forward to execute the sale deed as he has not obtained regularization of property from the municipality.
5. Learned counsel for the respondent also contended that when the respondent has no objection for execution of the sale in pursuance of the terms and conditions of the agreement of sale and the petitioner has not been depositing earnest amount or arrears of amount to the respondent, he question of giving a direction to the respondent not to alienate the property does not arise.
6. The grant of relief of Specific Performance under Section 16 of the Specific Relief Act, 1963, is equitable remedy. The petitioner must come to the court with clean hands. When the petitioner has paid half of the earnest amount at the time of agreement of sale, he must be ready and willing to perform his part of contract by depositing the balance amount into the court to show his bona fidies. After service of notice, the respondent came forward with a plea that he has no objection to execute the sale deed in pursuance of the terms of the agreement. When a specific plea has been taken in the counter that the respondent has no objection for executing a registered sale deed in favour of the petitioner, the petitioner has not raised his little finger to deposit or pay the amount by way of cheque or draft to the respondent to execute a registered sale deed. Instead of that the petitioner filed the above application to grant interim injunction restraining the respondent not to alienate the property. Therefore this attitude on the part of the petitioner would clearly prima facie go to show that he was not ready and willing to perform his part of contract. Therefore, the trial court rightly dismissed the application. The said order needs no interference by this court. Any
observation is made in this appeal, is only for the purpose of disposal of appeal. None of the observations can be construed as a finding of this Court.
7. Accordingly the Civil Miscellaneous Appeal is dismissed. No costs.
_______________ K.C.BHANU. J
MARCH 29, 2010.
YVL
2 issues framed by the court
Whether the appellant was ready and willing to perform his part of the contract by depositing the balance sale consideration.
Whether the lower court erred in dismissing the application for interim injunction restraining the respondent from alienating the suit property.
2 provisions across 2 enactments
Mohammad Saleem
Surisetty Samuel Satyanandam
K.C. BHANU
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
