VARRA TRIMURTHULU Vs. BUDDARAJU VENKATA

JUDGEMENT

(1.) This is defendant's appeal. The appellant owns Ac.10.00 cents of land. He and the respondent have been friends since the time of their childhood. The respondent owns Ac.30.00 cents of land. He also does business in prawn and fish feeds. The appellant has been a customer for purchase of the said feed for the use of the same in his own fish tanks. Controversy between them arose with reference to an agreement for sale said to have been executed by the appellant in favour of the respondent concerning the plaint schedule mentioned immovable properties. Ex.A.2 is the registered sale deed dtd. 22/3/1995 under which the appellant had come to own the plaint schedule properties. It is stated that the appellant executed Ex.A.1-registered agreement for sale dtd. 8/8/2002 in favour of respondent. In the context of the above facts, the respondent herein filed O.S.No.56 of 2004 before learned III Additional District Judge, (Fast Track Court), Bhimavaram praying for specific performance of the said agreement for sale and for delivery of possession of the property and in the alternative, he prayed for refund of advance sale consideration he had paid along with interest thereon and for costs and such other relies. Contesting the claim, the appellant as defendant filed his written statement wherein he denied the plaint levelled allegations and mentioned that he never intended to sell the property. As he borrowed Rs.50,000.00 from the plaintiff, the plaintiff exercising undue influence obtained the alleged agreement for sale towards security for repayment of the debt. That this agreement for sale was never intended to be acted upon. That the said agreement is a fabricated document. He sought dismissal of the suit with costs.

(2.) Learned trial Court settled the following issues for its consideration:

(3.) At the trial, plaintiff testified as PW.1 and the defendant testified as DW.1. The disputed agreement for sale was marked as Ex.A.1. The sale deed showing the ownership of the property by the defendant is marked as Ex.A.2. The brother of the plaintiff who was one of the attestors to the document testified as PW.2 and the scribe of the disputed document testified as PW.3. Prior to the institution of the suit, plaintiff got issued a notice dtd. 6/8/2003 to the defendant calling upon him to receive the balance sale consideration and come forward and execute the registered conveyance as stipulated in Ex.A.1. The said notice is Ex.A.3. It was received by the defendant as evidenced by Ex.A.4-postal acknowledgment. During the trial proceedings, defendant admitted that he had received Ex.A.3-notice but did not give reply notice but he took elders as mediators to the plaintiff and the elders questioned the plaintiff about Ex.A.3-notice and in their presence plaintiff stated to them that he would not file any suit. However, he filed the suit. It is to prove such mediation through elders, the defendant got examined DWs.2 to 6. In the written statement he stated that he borrowed Rs.50,000.00 from the plaintiff and as a security plaintiff obtained Ex.A.1 from him. During the course of trial, he put forwarded a contention stating that he has been purchasing fish and prawn feed on credit basis and towards security of repayment of those amounts the plaintiff obtained Ex.A.1. To sustain such a contention of purchase of feed by him from the plaintiff, the defendant exhibited Exs.B.1 to B.51. Learned trial Court considered the rival contentions and in detail scrutinized the oral evidence on both sides and held that Ex.A.1-agreement for sale was true, valid and supported by consideration and it was not a document brought into existence by fabrication and the theory of the defendant that his signatures were obtained on blank stamp papers was incorrect. It categorically recorded a finding that the plaintiff has always been ready and willing to perform his part of the contract and the fault lies with the defendant. In such circumstances, in the opinion of the trial Court, the plaintiff was entitled for the primary relief of specific performance of the agreement for sale and accordingly it granted the same directing the plaintiff to deposit the balance sale consideration of Rs.21,000.00 within one month and the defendant to execute the registered sale deed and it prescribed a period of three months for completing this task. Since the primary relief was granted, the alternative relief of refund of money could not be granted and therefore was not granted. The defendant in the suit was not satisfied with this judgment and decree and he appealed to this Court under Sec. 96 C.P.C.