Dismissed

M/s. Sri Surya Granites v. Sri G. Venkateshwarlu

Telangana HC4 Jun 2013CCCA/227/2008

Case brief

AI extract

What is this about?

Appeals dismissed. The High Court upheld the trial court's finding that the plaintiff failed to prove the existence of an oral sale agreement and that a receipt was manipulated. The eviction suit against the tenant is confirmed with a one-month assurance period granted.

What did the court decide?

Eviction suit confirmed with a stay on eviction for six months; six months time granted to vacate possession by 04.12.2013.

M/s. Sri Surya Granites Vs Sri G. Venkateshwarlu — Specific Performance | Telangana HC (2013)

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*** THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY AND**

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THE HON’BLE SRI JUSTICE S.V.BHATT

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+C.C.C.A.Nos.211, 227 & 228 of 2008

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% Dated 04.06.2013

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C.C.C.A.No.211 of 2008

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# M/s. Sri Surya Granites.

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….Appellant

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$ Sri G.Venkateswarlu.

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….Respondent

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! Counsel for the appellant: Smt. Manjari S.Ganu

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^ Counsel for respondent : Sri D.V.Sita Rama Murthy

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< GIST:

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> HEAD NOTE:

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? Cases referred:

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1. (1990) 4 SCC 147

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2. 1989(2) ALT 653

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3. 1998(6) ALT 399

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THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY

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AND

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THE HON’BLE SRI JUSTICE S.V.BHATT

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C.C.C.A.Nos.211, 227 & 228 of 2008

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COMMON JUDGMENT: (Per LNR,J)

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These three appeals arise out of a common judgment,

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dated 18.06.2008 rendered by the Court of II Additional Chief Judge, City Civil Court, Hyderabad in three separate suits being O.S.Nos.314 of 2004, 461 of 2006 and 64 of 2007. While the appellant figured as plaintiff in O.S.Nos.314 of 2004 and 64 of 2007, it is the sole defendant in O.S.No.461 of 2006.

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For the sake of convenience, the parties are referred to as arrayed in O.S.No.64 of 2007.

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The 1^st defendant, by name G.Venkateswarlu is the owner of premises bearing No.8-3-833/156, plot No.156, Kamalapuri Colony, Phase III, Hyderabad, constructed over an extent of 423.57 square yards. He gave the premises on lease to the plaintiff, M/s. Sri Surya Granites with effect from 01.02.1997. Initially, the rent was Rs.1,000/- per month and later on, it was enhanced.

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The plaintiff states that the 1^st defendant is basically a resident of United Kingdom and he used to entrust the administration and management of the property either to his son or his friend, by name Hanumantha Rao. According to the plaintiff, the 1^st defendant orally agreed to sell the property, when he visited India in January 2002 in the presence of his son i.e., 2^nd defendant and Sri Hanumanth Rao, for a consideration of Rs.18,70,000/-. It was also pleaded that as a sequel to the oral agreement, the 2^nd defendant received a sum of Rs.2,70,000/- as advance, vide receipt, dated 14.05.2002.

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The plaintiff filed O.S.No.4619 of 2004 against the 2^nd defendant for the relief of perpetual injunction in respect of the suit schedule property. Later on, the suit was re-numbered as O.S.No.64 of 2007. It is in that suit that reference was made to the so-called oral agreement of sale and the receipt. Since

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defendants 1 and 2 denied the oral agreement or receipt of any advance, the plaintiff filed O.S.No.314 of 2004 for the relief of specific performance of agreement of sale. Obviously in view of these developments, the 1^st defendant i.e., owner filed O.S.No.461 of 2006 for recovery of possession of the suit schedule premises duly terminating the lease.

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The gist of the contention of the plaintiff was that the 1^st defendant who is the owner of the premises agreed orally to sell the premises and under his authorization, the 2^nd defendant received advance of Rs.2,70,000/-. It was alleged that despite repeated demands, the 1^st defendant refused to execute sale deed and on the other hand, the 2^nd defendant was trying to interfere with its possession of the premises.

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The stand of defendants 1 and 2 was that there was no oral agreement of sale whatever and Ex.A.1 was a fabricated document. According to them, there used to be commercial transactions for supply of granite etc., between the plaintiff and the 2^nd defendant. It was also pleaded that the 2^nd defendant took hand loan of Rs.70,000/- from the son of the plaintiff through a cheque, dated 14.05.2002 and Ex.A.1 was issued in relation thereto. They pleaded that when the cheque was presented, it was noticed that the balance to the credit of the account holder was only Rs.69,000/- and accordingly, the figures in the cheque were altered by the issuer of the cheque. In the suit filed by them, they prayed for eviction of the plaintiff stating that the tenancy was terminated.

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The trial Court dismissed O.S.No.314 of 2004 and 64 of 2007 and decreed O.S.No.461 of 2006, through its common judgment.

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On the basis of the pleadings before it, the trial Court

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framed the following issues for its consideration:

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O.S.No.314 of 2004

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1. Whether the plaintiff has obtained the suit premises on lease on 1-2-1997 from the defendant on monthly rent of Rs.1,000/- per month and that he is doing granite business in the said premises?

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2. Whether the present rent is Rs.3,000/-per month?

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3. Whether the plaintiff has paid part of the property tax under intimation to the defendant represented by V.Hanumantha Rao and carried repairing works in the said premises?

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4. Whether in the presence of G.S.Vijaymohan, Sri V.Hanumantha Rao, Sri K.V.Rao and SriV.Ramakrishna, the defendant had offered to sell the suit property for a sale consideration of Rs.18,70,000/and that the plaintiff paid a sum of Rs.2,70,000/- to G.S.Vijaymohan as a G.P.A. Holder of the defendant on 14-5-2002?

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5. Whether the plaintiff was demanded for vacating the part of the premises occupied by him?

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6. Whether the plaintiff hatched a plan to grab the suit schedule property relying on the receipt Dt:14-5-2002 relying on the alleged receipt?

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7. Whether the defendant is making hectic attempts to alienate the suit schedule properties to third parties?

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8. Whether there is no cause of action to file the suit?

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O.S.No.461 of 2006

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1. Whether the plaintiff is entitled for eviction of the defendant from the suit property?

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2. Whether the defendant is in arrears of rent, if so at what rate?

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O.S.No.64 of 2007

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1. Whether the terms of lease as mentioned by the petitioner are true and correct?

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2. Whether the plaintiff is entitled for perpetual injunction against the defendants?

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For all practical purposes, O.S.No.64 of 2007 filed for

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the relief of injunction became redundant, since the 1^st defendant therein filed O.S.No.461 of 2006 for eviction. The evidence was recorded in the suit for specific performance i.e., O.S.No.314 of 2004. On behalf of the plaintiff, P.Ws.1 to 3 were examined and Exs.A.1 to A.25 were marked. On behalf of the defendants, D.Ws.1 to 4 were examined and Exs.B.1 to

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B.16 were marked. The record pertaining to the opinion of the hand writing expert was taken as Ex.X.1.

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Smt. Manjari S.Ganu, learned counsel for the plaintiff submits that there is sufficient evidence on record to prove the existence of oral agreement and receipt of advance through Ex.A.1 and in that view of the matter, the trial Court ought to have decreed the suit for specific performance. She contends that the defendants were not consistent in their version, as to the circumstances under which the amount covered by Ex.A.1 was received. She submits that though the 2^nd defendant as D.W.3 denied the very execution of Ex.A.1, he admitted the signature thereon in the cross-examination, and still, the trial Court placed the burden upon the plaintiff to prove the contents thereof. Learned counsel further submits that the 1^st defendant as D.W.1 was not consistent as to the dates of arrival to India or the nature of authorization, which he gave to his son-D.W.3. Other subsidiary contentions are also urged.

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Sri D.V.Seetharam Murthy, learned senior counsel appearing for the defendants, on the other hand, submits that the plaintiff, who was inducted as a tenant into the premises, has become ambitious to grab the property and in the process, he has come forward with the theory of oral agreement. He submits that the fictitious nature of the claim of the plaintiff is evident from the fact that not even the date, on which the so-called agreement of sale came into existence, was mentioned. Learned senior counsel submits that Ex.A.1, on which heavy reliance was placed by the plaintiff, was found to be a forged document as to the contents and the trial Court has correctly appreciated and analyzed the evidence on record.

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After hearing learned counsel for the plaintiff and

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learned counsel for the defendants, we find that the following points arise for consideration, in this batch of appeals:

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(a) Whether the plaintiff in O.S.No.314 of 2004 has proved the existence of oral agreement of sale between himself and the 1^st defendant in respect of the schedule property?

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(b) Whether the plaintiff proved Ex.A.1? and

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(c) Whether the plaintiff in O.S.No.461 of 2006 is entitled for a decree of eviction of the defendant therein from the suit schedule property?

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(d) To what relief?

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In O.S.No.314 of 2004, the plaintiff prayed for the relief of specific performance of agreement of sale. The agreement according to him however was oral in nature. It is fairly well settled that (a) it is not necessary that an agreement of sale must be in writing, but (b) where an oral agreement of sale is pleaded in respect of any item of property, heavy burden rests upon the plaintiff to prove every facet of the same through cogent and acceptable evidence. Reference in this regard may be made to the judgment of the Supreme Court in BRIG MOHAN AND OTHERS V. SUGRA BEGUM AND OTHER S^[1] . Their lordships held:

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“There is no requirement of law that an agreement or contract of sale of immoveable property should only be in writing. However, in a case where the plaintiffs come forward to seek a decree for specific performance of contract of sale of immoveable property on the basis of an oral agreement alone, heavy burden lies on the plaintiffs to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immoveable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immoveable property were concluded between the parties orally and a written agreement if any to be executed subsequently would only be a formal agreement incorporating such

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terms which had already been settled and concluded in the oral agreement.”

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In Y.V.NARASIMHA SARMA V. S.APPALARAJ U^[2] ’ ,

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this Court observed:

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“…….Under Section 54 of the Transfer of Property Act, it is not necessary that an agreement for sale should be in writing. There is no prohibition against oral contracts for sale. In every case, where a party comes up with a plea of oral contract of sale, it is the duty of the court to scrutinize the evidence very carefully before accepting that plea. When valuable properties are involved, normally, the parties do not conclude the bargain by oral arrangement but when a party comes to the court pleading that he is entitled to a specific performance based on an alleged oral contract for sale, the burden lies heavily upon him to establish by acceptable and cogent evidence what he pleaded. This rigorous test is warranted in order to prevent miscarriage of justice. The risk of owners of property being defrauded by resourceful litigants in the absence of the court adopting a strict and rigorous test in respect of oral contract for sale, is real.”

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To the same effect is the observation made by this Court in ABDUL RASHEED AND OTHERS V. ABDUL

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HAKEEM^[3] :

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“The burden of proof naturally lies on the plaintiff to prove the alleged agreement by realizable, cogent and convincing evidence. The law, no doubt, recognizes an oral agreement of sale and there is no requirement of law that an agreement of contract of sale of immovable property should only be in writing. However, in a case where the plaintiff comes forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the plaintiff to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immovable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case.”

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This being the requirement of law, it needs to be seen as to whether the plaintiff discharged the same. It is only when necessary foundation is laid in the pleadings that it would be

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possible for the plaintiff to substantiate the same through evidence. Pleadings in this behalf in the plaint in O.S.No.314 of 2004 reads:

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“The defendant visited Hyderabad in the beginning of 2002. The defendant on his last visit orally in the presence of his son and Sri N.Hanmanth Rao and Sri K.V.Rao, s/o late Sri Subbaiah and Sri V.Ramakrishna, s/o Sri V.Madan Mohan Rao offered to sell the suit property for a total sale consideration of Rs.18,70,000/(Rupees eighteen lakhs seventy thousand only) and the plaintiff accepted the said offer. The plaintiff at the request of defendant has paid a sum of Rs.2,70,000/- (Two lakhs seventy thousand only) to his son who is his GPA holder on 14.05.2002 which was agreed to be treated as advance and the balance has to be paid at the time of execution and registration as advance and the balance has to be paid at the time of execution and registration of deed of sale of suit property.”

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The same version was repeated in the paragraph pertaining to cause of action in the prayer. In the written statement, the 1^st defendant flatly denied the very existence of the agreement of sale. He has also explained certain other circumstances.

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One of the essential requirements for any document, or for that matter, any transaction of whatever nature, is the date on which it is said to have taken place. Though not with mathematical precession, the person claiming the relief of specific performance must be able to spell out the timing at which the oral agreement has taken place. This becomes important from the point of view of limitation to file the suit and the scrutiny of evidence that may be adduced by the parties. Unless the date is mentioned, the Court would face a serious disadvantage in requiring the parties to put forward their contention. It is only when the date is mentioned that the defendant would be in a position to take the plea similar to the one of alibi etc. The absence of date of the agreement is prone to tell upon the very existence thereof.

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Hardly any effort was made by the plaintiff as P.W.1 in this behalf. Further, the very basis pleaded by him that the 1^st defendant has authorized his son to receive the consideration etc. was virtually remained unproved, once it was elicited from his cross-examination that he did not see any document in that behalf. Another fatal statement made by him was that talks were held for months together before the agreement was entered into. This only compounds the confusion, which is otherwise existing.

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A serious attempt was made by the plaintiff to prove the agreement by relying upon Ex.A.1, a receipt. Several suggestions were made to the effect that the hand writing was forged and interpolations were made. The evidence of P.W.1 is hardly of any use to the plaintiff. On some aspects, his evidence is an improvement over the version of P.W.1. It was elicited that there is no mention of the so-called agreement in Ex.A.1.

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When the plaintiff is not sure about the date of agreement, it is difficult to discern the existence of the consensus ad idem which is sine quo non for any agreement. It is only when the plaintiff proves that discussion in relation to any transaction has taken place and there exists consensus ad idem between it and the 1^st defendant, that the Court can consider the feasibility of enforcing such agreement. The cumulative effect of the imperfect pleadings and inadequate evidence is that the plaintiff miserably failed to prove the existence of the very agreement. The second point is in a way answered to a substantial extent in point No.1. As observed earlier, the plaintiff pleaded that the property was purchased for a sum of Rs.18,70,000/and a sum of Rs.2,70,000/- was paid as advance under

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Ex.A.1. The plea of the defendants was that the plaintiff advanced a sum of Rs.70,000/- to D.W.2 under a business transaction under a cheque-Ex.B.1. Ex.A.1 is said to be the receipt of that amount. It was further pleaded that when the cheque-Ex.B.1 was presented it was not honoured on the ground that only Rs.69,000/- is available in the Account and that the signatory of the cheque altered the figure to Rs.69,000/- and it was accordingly honoured. The plaintiff did not dispute the issuance of the cheque under Ex.B.1 initially for Rs.70,000/- and thereafter for Rs.69,000/-. Ex.A.1 was sent for hand writing expert. A finding was recorded by D.W.4, the expert, to the effect that the figure ‘2’ was added before Rs.70,000/- and that various interpolations were made in an attempt to link the receipt to the alleged transaction. Once the contentions of Ex.A.1 are found to be interpolated, it cannot be treated as proved.

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There may be instances, where the amounts are paid towards consideration through ordinary receipts or out of just belief, particularly when the parties are not well versed. From the very description in the cause title, it is evident that the plaintiff is a seasoned businessman and the defendants are well educated urban people. In fact, D.W.1 is a resident of United Kingdom. It is just unthinkable that the transaction in relation to an item of immovable property would take place in such a manner between the parties of so much of experience in the field. The record clearly discloses that Ex.A.1 is a manipulated and concocted document. The point is accordingly answered.

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The answer of points 1 and 2 would have a bearing upon the relief claimed in the suit for specific performance of agreement of sale. It is too well established that the Court can grant such relief only when the plaintiff proves the existence of agreement of sale and the equities are in his favour. The very

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language employed in Section 20 of the Specific Relief Act, 1963 is that even where the agreement is proved, grant of relief is not a matter of course and the Court is vested with the discretion in this behalf. It is a different matter that the Court is also required to be cautious in exercising the jurisdiction. In the instant case, the plaintiff failed to prove the very existence of agreement. Therefore, the question of granting relief of specific performance does not arise. The trial Court has taken correct view of the matter.

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Now remains the third point pertaining to eviction. The defendant does not dispute that the plaintiff in that suit is the owner of the property. Notice under Section 106 of the Transfer of Property Act was issued and no grounds to the contrary have been established by the defendant. The attempt made by it to claim the relief of specific performance of agreement of sale did not fructify. The inescapable conclusion is that it is liable to be evicted from the premises.

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Hence, the decree in O.S.No.314 of 2004 is confirmed. As a consequence, O.S.No.64 of 2007 filed by the tenant for injunction deserves to be dismissed. In the result, all the appeals are dismissed.

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Learned counsel for the plaintiff made a request that reasonable time be granted for his client to vacate the premises. The said request is opposed by the learned counsel for the defendants.

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Having regard to the fact that the plaintiff is running an industry, we grant six (6) months time from today to it to vacate the premises subject to the conditions that-

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(a) it shall put the defendants in vacant possession of the suit schedule premises on or before 04.12.2013; and

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(b) it shall pay the rents regularly on or before 5^th of every month;

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The miscellaneous petitions filed in these appeals shall also stand disposed of. There shall be no order as to costs.

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______________________ L.NARASIMHA REDDY, J

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S.V.BHATT, J Date: 04.06.2013 Note: L.R.Copy to be marked. JSU

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THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON’BLE SRI JUSTICE S.V.BHATT