RAGHAVA CONSTRUCTIONS Vs. CHITRAM MOVIES

JUDGEMENT

(1.) This appeal has been preferred by the plaintiff, in somewhat extraordinary circumstances, against the judgment and decree passed in the suit instituted for specific performance of agreement of sale. The plaintiff is a partnership firm registered under the Indian Partnership Act and so was the defendant. The defendant owned a house property situated at Road No. 17 of Jubilee Hills locality at Hyderabad, standing on a plot of land of an extent of 1147 Sq. yds. The defendant has purchased the said house property through a registered sale deed bearing No. 5426/2002 executed on 27.9.2002. The said house property was offered for sale for a total sale consideration of Rs. 8,31,00,000/- (Rupees Eight Crores Thirty One Lakhs Only) and accepting the same the plaintiff firm paid an amount of Rs. 15.00 lakhs upfront as token advance through a cheque bearing No. 024816 dated 23.12.2009 drawn on Vijaya Bank, Vijayanagar Colony, Hyderabad. The defendant firm acknowledged the receipt of the said money by passing on a receipt on 23.12.2009 stipulating the terms and conditions mutually agreed to by and between the parties. The plaintiff firm was required to pay a further sum of Rs. 2,35,000/- within ten days time. It was agreed by the defendant to execute the necessary sale deed after receiving the balance sale consideration within three months from 23.12.2009. It is also stipulated that, if the plaintiff firm fails to pay the remaining amount of Rs. 2,35,000/- within 10 to 15 days, the token advance amount will be cancelled. According to the plaintiff, the house property in question was mortgaged earlier in favour of South Indian Bank by the defendant and the said bank raised a demand for payment of a sum of Rs. 1,58,00,000/-. Therefore, the plaintiff has asserted that, it has obtained a demand draft in favour of South Indian Bank in a sum of Rs. 1,58,00,000/- on 6.1.2010, as desired by the defendant and he has also drawn a cheque for a sum of Rs. 77,00,000/- in favour of the defendant firm representing the balance amount of Rs. 2,35,000/- agreed to be paid on 23.12.2009. However, the defendant firm has declined to entertain the plaintiff and consequently it did not accept the demand draft and the cheque set out supra. It is the case of the plaintiff that, on 22.1.2010 they got issued a legal notice calling upon the defendant firm to perform its part of the obligation by executing registered sale deed duly conveying the title to the house property agreed to be sold by the defendant after receiving the balance sale consideration amount within a month's time. But however, it appears, the defendant started negotiating with third party for sale of the house property in question and thus started creating a third party interests in the house property agreed to be sold by the defendant. In those set of circumstances, suit OS No. 47 of 2010 came to be instituted on 29.1.2010 seeking the following reliefs:

(2.) It will also be appropriate to notice that the plaintiff filed Interlocutory Application No. 393 of 2010 in the said suit seeking grant of an injunction to restrain the defendant firm from alienating the suit property or creating third party interests thereon. It will be appropriate to notice that, on behalf of the defendant firm, Sri Dharma Teja, the Managing Partner has filed a detailed counter and additional counter to the averments contained in the affidavit filed in support of IA No. 393 of 2010. It is agreed that the defendant firm has consented to sell the house property for a total sale consideration of Rs. 8,31,00,000/- and that the plaintiff has paid a token advance amount of Rs. 15,00,000/- on 23.12.2009. It is agreed that the suit property is mortgaged earlier in favour of South Indian Bank, S.D. Road Branch, Secunderabad and an amount of Rs. 2,35,00,000/- is required for discharging the outstanding liability towards the South Indian Bank and thus retrieve the original documents from the said bank. It is stated in Paragraphs 3 and 4 of the counter-affidavit, inter alia as under:

(3.) In Paragraph 5 of the counter-affidavit, it is pleaded by the defendant that, though it had an option to forfeit the token advance amount of Rs. 15,00,000/-, but still, it agreed to refund the same and accordingly drawn the demand draft bearing No. 552606 dated 21.1.2010 for an amount of Rs. 15,00,000/- and as the petitioner did not come forward for collecting the same, he had sent a copy of the said demand draft (not the original) under a covering letter dated 23.1.2010. The defendant further alleged that the plaintiff made an unjust demand to pay an additional sum of Rs. 10,00,000/- failing which the defendant has been threatened with litigation. It will also be appropriate to notice what the defendant has set out in Paragraph 6 of his counter-affidavit filed in IA No. 393 of 2010. The relevant portions read as under: