Dismissed

Jagdish Pershad agarwal v. Ramanuj Das Darak

Telangana HC18 Aug 2011CCCA/225/2003

Case brief

AI extract

What is this about?

In an appeal against dismissal of a specific performance suit, the High Court upheld the lower Court's rejection of the plaintiff's claim. The Court held the plaintiff's account improbable due to the 14-year delay in enforcing the alleged 1982 agreement despite partial payment, continued rent payments, and lack of defendant signatures on the agreement or receipt. The plaintiff failed to prove exec

What did the court decide?

The application for leave to appeal in specific performance of the agreement of sale was dismissed.

Jagdish Pershad agarwal Vs Ramanuj Das Darak — Partition | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR

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C.C.C.A No. 225 of 2003

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Judgment:

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The plaintiff in the lower Court, whose suit has been dismissed, filed the present appeal challenging the judgment and decree dated 30.12.2002 passed in O.S. No.254 of 1997 by the VII Senior Civil Judge, City Civil Court, at Hyderabad.

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The parties will be referred to as they are arrayed before the lower Court for the sake of convenience.

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The brief facts of the case are as follows. The defendants are the sons of late Sri Ram Karan Darak and late Smt. Rukma Bai. Originally, late Ram Karan Darak was the owner of the suit schedule premises. The plaintiff’s specific case is that after the death of Ram Karan Darak, his wife Rukma Bai and the defendants who are his sons succeeded to the suit schedule property. The plaintiff had entered into the suit schedule premises as a tenant in the year 1975 on a monthly rent of Rs.350/- per month. The rent was being enhanced from time to time and it became Rs.600/- per month as on the date of filing of the suit. The further case of the plaintiff is that the defendants were collecting the rents irregularly once in a year or once in two to three years as per their convenience and the second defendant collected rent for the year 1989-90, 1990-91 and 1991-92 amount to Rs.18,000/at the rate of Rs.500/- per month and also for the years 1992-93 and 1993-94 amounting to Rs.14,400/- at the rate of Rs.600/- per month. His specific case is that he paid rent up to October 1994 and that he was under the bona fide impression that the second defendant would come and collect the rents and, therefore, he waited for payment of

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rents and in the meanwhile the defendants got issued a legal notice on 01.07.1996 making false allegations that he committed default in payment of rents from June 1991 at Rs.500/- per month.

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The further case of the plaintiff is that the mother of the defendants Smt. Rukma Bai on her behalf and also on behalf of the defendants entered into an agreement of sale with him on 23.01.1982 agreeing to sell the suit schedule property for a sum of Rs.1,50,000/and that the plaintiff paid a sum of Rs.75,000/- as advance on the same day and Ex.A1 is the agreement of sale dated 23.01.1982. It is his further case that the defendants were taking time for the purpose of obtaining income tax clearance certificate and no due certificate from the Municipal Corporation of Hyderabad. It is also his case that thereafter at the request of Smt. Rukma Bai, he paid a sum of Rs.50,000/- on 23.08.1987 and that she passed a receipt for the said amount on the same day and Ex.A2 is the said receipt. The further case of the plaintiff is that it was agreed that the balance amount of Rs.25,000/- should be paid to the defendants after they obtained necessary no due certificates and that he, under the bona fide belief and trust in the defendants, waited for the defendants to obtain necessary documents and as there was no response from the defendants, finally he approached them in the last week of June 1996 and requested them to receive the balance of sale consideration and execute the registered sale deed. It is also his case that the defendants, having taken time for executing the registered sale deed, issued a false notice in July 1996 and subsequently filed R.C. No.426 of 1996 on the file of the I Additional Rent Controller, Hyderabad, seeking his eviction on the ground of willful default in payment of rents. The plaintiff’s further case is that though he was always ready and willing to perform his part of contract, but as the defendants did not

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come forward to execute the sale deed and ultimately refused to execute the registered sale deed, he filed the suit for specific performance.

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The defendants filed a detailed written statement and denied the case of the plaintiff. Their specific case is that their mother never executed any agreement of sale nor received advance amount of Rs.75,000/- as claimed by the plaintiff or Rs.50,000/- subsequently. Their specific case is that the plaintiff filed the suit as a counter blast to the notice dated 01.07.1996 got issued on their behalf and for the proceedings initiated by them in R.C. No. 426 of 1996 on the file of the I Additional Rent Controller, Hyderabad, seeking his eviction from the suit schedule premises. Their specific case is that at no point of time, prior to the issuance of legal notice on their behalf, the plaintiff claimed the existence of alleged agreement of sale nor demanded to enforce the rights thereunder and that the present suit has been engineered by the plaintiff by creating forged documents. They have also denied that they are in the habit of collecting rents irregularly. It is also their case that Smt. Rukma Bai had suffered from a severe heart attack in 1984 and she was not in a position to move from the house and therefore the question of her going to the premises of the plaintiff and signing of the receipt on 23.08.1987 on the letter head of the plaintiff does not arise. It is also their case that if at all the defendants agreed to get income tax clearance certificates and other no due certificates from the Municipal Corporation of Hyderabad, as alleged, there is no reason as to why the plaintiff did not choose to call upon the defendants to comply with the same for all these years. It is also their case that the payment of rents from time to time, enhancement of rents after 1994 falsifies the case of the plaintiff. It is also their case that they had pledged the suit schedule property to Punjab National Bank in 1980 and that the said

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Bank issued a registered notice on the address of the suit schedule property and the plaintiff himself had received the said notice and subsequently the plaintiff himself corresponded with the bank admitting that he is in possession of the suit schedule property as a tenant and that he had never taken the plea that he is an agreement of holder.

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Basing on the above pleadings, the following issues were settled by the lower Court for trial.

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1. Whether the suit agreement of sale dated 23.01.1982 by Smt. Rukma Bai is true, valid, genuine and binding on defendants?

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2. Whether the plaintiff is entitled for specific performance of the suit agreement of sale?

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3. Whether the plaintiff is entitled for perpetual injunction?

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4. To what relief?

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On behalf of the plaintiff, plaintiff himself was examined as PW.1 and PWs.2 and 3 were examined and Exs.A1 to A17 were marked. On behalf of the defendants, the second defendant was examined as DW.1 and Exs.B1 to B5 were marked.

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The lower Court, on appreciation of the oral and documentary evidence, came to the conclusion that the version of the plaintiff is improbable and cannot be accepted and, accordingly, dismissed the suit. Challenging the same, the present appeal has been filed.

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Sri Venkata Raghu Ramulu, learned counsel for the appellant/plaintiff, submitted that the plaintiff was admittedly a tenant in the suit schedule premises as on the date of agreement and that the mother of the defendants Smt. Rukma Bai had entered into an agreement of sale and signed in Ex.A1 and received an amount of Rs.75,000/- as advance and subsequently she had also received Rs.50,000/- under Ex.A2 receipt and the balance of amount payable by the plaintiff is only Rs.25,000/-. His main submission is that there

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was cordial relationship between the parties and the defendants had to obtain income tax clearance certificate and no due certificates from the Municipal Corporation of Hyderabad, and unless those documents were obtained it was not possible to finalise the transaction. It is also his submission that since the defendants were receiving rents and also accepting the enhanced rents there was no dispute between the parties till the defendants issued a legal notice on 01.07.1996. It is also his submission that there was no occasion for the plaintiff to demand the defendants to execute registered sale deed prior to the issuance of legal notice dated 01.07.1996. His main submission is that the Court below ought to have accepted the evidence of PW.2, who is the attestor of Ex.A1, and the evidence of PW.3, who is the witness to Ex.A2 receipt and ought to have held that the plaintiff has proved execution of Ex.A1. His further submission is that the Court below committed an error in rejecting the evidence of PWs.2 and 3 only on the ground that they are the relative and close friend of the plaintiff respectively. His main submission is that when the defendants have denied the signature of Rukma Bai in Exs.A1 and A2, they ought to have produced certain documents containing the signatures of Rukma Bai to disprove the case of the plaintiff, and thus, they have withheld the evidence which was in their possession and therefore an adverse inference can be drawn against them. In support of the said contention he has relied on a decision reported in Gopal Krishnaji Ketkar v. Mohammed Haji Lati f^[1] . For the same proposition, he has also relied on the judgment reported in Khushalbhai Mahijibhai Patel v. A. firm of Mohamadhussain Rahimbux^[2] . It is also his submission that if at all the lower Court has come to a conclusion that the defendants who were the sons of Rukma Bai have not signed in Ex.A1, it ought to have decreed the suit to the extent of the share of

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Rukma Bai in favour of the plaintiff. It is also his submission that the evidence of PWs.1 to 3 proves the execution of the agreement of sale by Rukma Bai and further shows that the plaintiff has discharged his initial burden and therefore the burden shifts to the defendants to disprove the same and they failed to do so. His main submission is that the time is not the essence of contract and placing reliance on the judgment of the Apex Court reported in Mademsetty Satyanarayana v. G. Yelloji Rao^[3] , he submitted that on the ground of mere delay the suit for specific performance cannot be dismissed. His main submission is that since the defendants have not adduced any rebuttal evidence, the lower Court committed an error in rejecting the evidence of PWs.2 and 3.

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Ms. Manjari S. Ganu, learned counsel, representing Sri M. Papa Reddy, learned counsel for the respondents, submitted that the case of the plaintiff is utterly false, improbable, unnatural and against the normal human conduct. Her submission is that if at all the mother of the defendants executed an agreement of sale in 1982, in all probabilities the plaintiff would not have kept quiet till 1996 without demanding the defendants to execute a registered sale deed. Her main submission is that the agreement of sale said to have been executed in 1982 did not see the light of the day till 1996 and the plaintiff never whispered about the same till the defendants got issued a legal notice demanding him to vacate the suit schedule premises. Thus, according to her, Exs.A1 and A2 have been introduced as a counter blast to the claim of the defendants seeking eviction of the plaintiff from the suit schedule premises when he failed to pay rents. It is also her submission that no doubt PWs.2 and 3 have supported the case of the plaintiff, but by that itself, it cannot be said that the agreement of sale is genuine or was executed by Rukma Bai. She

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has also taken me through the evidence wherein the plaintiff, who is examined as PW.1, has admitted about the payment of rents and also enhancement of rents even after the date of execution of the alleged agreement of sale. Thus, her main contention is that payment of rents and enhancement of rents from time to time falsifies the case of the plaintiff.

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The points that arise for consideration are whether the findings of the lower Court are perverse and whether the plaintiff’s case is probable.

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It is not in dispute that the suit schedule property originally belonged to Ram Karan Darak, the father of the defendants. Thus, there cannot be any doubt to say that after the demise of Ram Karan Darak, the defendants and their mother Rukma Bai succeeded to the property and they got equal share in the properties of Ram Karan Darak. Thus, admittedly, the defendants, who were majors even as on the date of execution of the alleged agreement of sale, said to have been executed by their mother, were having each 1/4^th share in the suit schedule property. It is an admitted case that the defendants have not signed in the agreement of sale dated 23.01.1982 and their signatures are also not available on Ex.A2 receipt, dated 23.08.1987. In all probabilities, in normal circumstances, when the plaintiff is purchasing a valuable property by paying huge amount as sale consideration, he would have insisted the defendants to sign on Ex.A1 or at least he would have obtained their signatures when an amount of Rs.50,000/- was paid on 23.08.1987. No reasons have been assigned by the plaintiff as to why he failed to obtain the signatures of the defendants in the agreement of sale Ex.A1, dated 23.01.1982 or subsequently on 23.08.1987 in the receipt Ex.A2. It has to be seen that the agreement of sale is dated 23.01.1982. The specific case of

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the plaintiff is that he was waiting to enable the defendants to obtain no due certificate from the Municipal Corporation of Hyderabad with regard to payment of taxes and also non-encumbrance certificate from the registration office and other required certificates from the income tax department. It is true that for finalization of a sale deed, normally the purchaser would insist for which certificates of clearance of property tax, electricity bills etc., but that would be for a reasonable period. Admittedly, the plaintiff did not issue any legal notice to the defendants calling upon them to obtain those certificates at any time. It is not his case that there was any problem in obtaining those documents by the defendants. Admittedly, the plaintiff did not whisper about Ex.A1 till a legal notice under Ex.A3 was issued by the defendants i.e., for more than 14 years. This appears to be most improbable and unnatural conduct. No person who pays huge amount would wait for an abnormal period of time of more than 10 to 12 years for enforcing an agreement of sale.

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The next circumstance in this case is that, admittedly, the plaintiff was continuing to pay rents. He had not only continued to pay the rents but also enhanced the rents from time to time. When the plaintiff had already entered into an agreement of sale for purchase of the property and when the remaining amount was only Rs.25,000/- to be paid by him to the defendants he would not have paid thousands of rupees towards rents to the defendants. It is the case of the plaintiff that defendant No.2 received rent of Rs.18,000/- for the years 1989-90, 1990-91 and 1991-92 at the rate of Rs.500/- per month. It is also his case that he had paid the rent for the period 1992-93 and 1993-94 amounting to Rs.14,400/-, which covers upto October 1994 according to him. Thus, it is surprising to note that when he had already entered into an agreement of sale in 1982 and the balance of amount to be

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paid by him is only Rs.25,000/- there was no need for him to pay Rs.18,000/- i.e., two years rent or three years rent at one time and Rs.14,400/- subsequently.

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Yet, there is another circumstance. It is the case of the defendants that they have mortgaged the property with Punjab National Bank and that the said Bank issued notices to them and the notices were sent to the suit schedule address and those notices were even received by the plaintiff himself. The plaintiff himself has admitted that a telegram was received from Punjab National Bank addressed to defendant No.3 and that there after a letter was also received from the said bank. He admitted that he gave reply to the letter of the Punjab National Bank and Ex.B5 is the said reply dated 05.06.1991. In Ex.B5, the plaintiff had categorically stated that he is the tenant in the suit schedule premises since last 17 years carrying on saree printing works business and that the whole premises is occupied by himself. If at all the plaintiff had entered into an agreement of sale in 1982 and when the bank issued notices alleging that the suit premises was mortgaged by Purushottamdas Dark, Ajay Industrial Aids, showing the address of the suit schedule premises, the plaintiff, in all probabilities, would have certainly claimed rights under Ex.A1. While appreciating the oral evidence adduced by the parties, all the facts and circumstances of the case have to be taken into consideration. It has to be seen whether the case of the plaintiff is probable or not, whether his conduct is natural or not, whether he would have waited for 14 years without demanding the execution of registered sale deed by the defendants. All such circumstances have to be taken into consideration.

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Coming to the evidence of PW.1, PW.1 himself admitted that none of the defendants have signed in Ex.A1 and that he had not seen

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any authorization or power of attorney given by the defendants in favour of their mother to execute the document. He has also admitted that till the date of giving evidence, he has not seen such document. As far as the huge amounts said to have been paid by him, he admitted that he did not withdraw Rs.75,000/- and Rs.50,000/- from any account on the dates on which he is said to have paid to the mother of the defendants. He says that he had no bank account in any bank. He is an income tax assessee. However, he says that he cannot even approximately tell about the turn over of his business. He has deposed that he brought Rs.75,000/- from his friends and neighbouring shop owners. It is also his case that he paid Rs.50,000/from his business account. When he was further cross-examined, he deposed that he does not remember the name of the friend or shop owner from whom he had borrowed the amount of Rs.75,000/-. He had also deposed that neither he remembers the names of the persons nor the quantum of amount paid by them. He had also admitted that he did not give any receipt to his friends or shop owners for the amounts received and he also did not remember how and when he repaid those amounts. He has also admitted that he has no proof to show that he had brought Rs.50,000/- from the business account and paid. Thus, there is no proof of payment of sale consideration under Ex.A1. While referring to PW.2, PW.1 admitted that PW.2 is known to him since 45 years as a friend. Referring to PW.3, he admitted that he knows PW.3 since 35 years and PW.3 is no other than his brother-in-law, who married his close relative. He admitted that he has not taken any amount from PW.3 at the time of execution of Ex.A1. It is also admitted by PW.1 that prior to giving legal notice by the defendants, he had not referred Ex.A1 nor its existence in any of the official records or anywhere else. In view of the above discussion, even they have

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deposed that PW.2 has attested Ex.A1 and PW.3 witnessed Rukma Bai signing in Ex.A2, no credence can be given to their evidence, in view of the facts and circumstances of the case. The maxim “Men may lie, but the circumstances will not lie” squarely apply to the facts of this case. In the circumstances, I have no hesitation to come to the conclusion that the plaintiff has failed to prove his case and the lower Court has rightly appreciated the oral and documentary evidence and came to the correct conclusion and dismissed the suit of the plaintiff and I see no reasons to interfere with the same.

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Accordingly, the CCCA is dismissed with costs throughout.

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______________________ B. CHANDRA KUMAR, J.

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Date: 18.08.2011 Nsr

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