M. S. JAYAPAL BABU Vs. MEKALA USMAN BASHA

JUDGEMENT

(1.) This Appeal under Sec. 96 of Code of Civil Procedure (C.P.C.) is filed by the defendant in the suit impugning the judgment dtd. 21/7/2009 of learned V Additional District Judge, Rayachoty in O.S.No.25 of 2008. Respondent Nos.1 and 2 were the plaintiffs in O.S.No.25 of 2008.

(2.) Sri P.Girish Kumar, the learned Senior Counsel for appellant and Smt. D.Padmavathi, the learned counsel for respondents submitted their respective arguments.

(3.) The controversy between the parties is related to an agreement for sale dtd. 27/6/2005. Before the learned trial Court this unregistered agreement for sale was marked as Ex.A.1 on behalf of the plaintiffs. On the same day between the same parties another document titled as a chit came to be executed as per Ex.A.2. These two documents were executed by defendant in favour of the plaintiffs. The contents of the documents and the execution of the documents have not been in dispute. After noticing the contents of these documents, it is appropriate to consider the rival claims. The agreement for sale refers to five items of immovable properties and the schedule appended to the agreement for sale gives full descriptive particulars to these immovable properties. Under the agreement for sale the defendant/appellant agreed to sell 2/3 rd share of him in favour of the plaintiffs. Therefore, in favour of both the plaintiffs he had executed Ex.A.1 as well as Ex.A.2. The total extent of the five items is 60 sarams. Out of them defendant agreed to sell 40.5/2 sarams to plaintiffs. One saram is equal to 270 square feet. Under Ex.A.1 the agreed sale consideration per saram is Rs.45,000.00. However, under Ex.A.2 parties agreed to sell and purchase at the rate of Rs.41,000.00 per saram. It is with reference to change of the amount of sale consideration per each saram alone Ex.A.2 was executed between the parties. Other than that change, Ex.A.2 has no effect on Ex.A.1. In these circumstances, it is sufficient to notice all the terms and conditions that are agreed upon between the parties as incorporated in Ex.A.1. The total consideration for 40.5/2 sarams was fixed at Rs.18,30,000.00 having been calculated at the rate of Rs.45,000.00 per each saram. On the date of execution of Ex.A.1 plaintiffs paid and the defendant received advance sale consideration of Rs.1,00,000.00. With reference to payment of balance sale consideration and the mutual rights and obligations of parties the rest of the terms incorporated in Ex.A.1 are required to be noticed keenly. Under this agreement plaintiffs agreed to pay Rs.3,57,500.00 towards one part of the sale consideration and they agreed to pay it on 15/7/2005 and after making such payment they must obtain a receipt from the defendant. The other term incorporated in Ex.A.1 is with reference to the remaining balance sale consideration of Rs.13,72,500.00. Plaintiffs had agreed to pay the said balance sale consideration within six months from the date of Ex.A.1 dtd. 27/6/2005. Thus, the outer date fixed for payment of Rs.13,72,500.00 was fixed at 27/12/2005. Ex.A.1 reads that defendant on receiving such balance sale consideration within six months from the date of Ex.A.1 would along with his mother execute a regular registered sale deed in favour of plaintiffs. It is further recited in Ex.A.1 that if the plaintiffs failed to pay the remaining balance sale consideration of Rs.13,72,500.00 within the time prescribed, the amount of Rs.1,00,000.00 that was received as advance sale consideration stands forfeited in favour of the defendant. It is further recited that the plaintiffs would not get any rights over the agreement schedule property. It is then recited in Ex.A.1 that if the plaintiffs pay that remaining balance sale consideration of Rs.13,72,500.00 within the time prescribed and if the defendant failed to attend for registration of regular registered sale deed or if the defendant refused to receive such balance sale consideration, then the plaintiffs are entitled to deposit the said balance sale consideration into Court and obtain a regular registered sale deed from the Court and recover the litigation expenses from the defendant.