VANIMISATTI ANIL KUMAR Vs. JAYAVARAPU KRISHNA MURTY

JUDGEMENT

(1.) Defendants 2 and 4 to 6 in Original Suit No. 65 of 1984, on the file of the Subordinate Judge's Court, Kovvur, West Godavari, are the appellants in this appeal. Respondents 1 and 2 herein are the plaintiffs in that suit. That suit was filed by the plaintiffs for (a) specific performance of the suit agreement of sale dated 31-8-1981, executed by the 1st defendant for himself and on behalf of the minor-2nd defendant in favour of plaintiffs 1 and 2 for Rs. l,02,900.00 agreeing to sell the house property with site bearing Door No. 53, in the Temple Street, in 10th Ward of Jangareddigudem, Polavaram Taluk, West Godavari District; (b) for recovery of a sum of Rs. 10,000.00 towards damages for the diala-tary tactics adopted by the defendant in completing the sale transaction in time; (c) alternatively for a decree for refund of Rs. 78,900.00; (d) for .a further sum of Rs. 1,00,000.00 as damages for breach of con- tract and also for a declaration that the 3rd defendant, who is a subsequent-purchaser of a part of the suit schedule property from defendants 1 and 2 under a registered sate deed dated 10-12-1987, is not a bona fide purchaser for value and that the said sale deed in favour of the 3rd defendant is not at all supported by consideration.

(2.) Plaintiffs are brothers and members of a Joint Hindu Family. The 2nd defendant is the undivided son of the 1st defendant. They are members of a Joint Hindu Family, of which the 1st defendant is the manager. The plaint schedule property and the adjacent terraced building are the joint properties of defendants 1 and 2 and the same was mortgaged to one Kola Ramarao of Eluru for Rs. 30,000 on 27-7-1979 by defendants 1 and2 in order to discharge the Antecedent debts of the joint family. In order to discharge the Antecedent debts, including the mortgage debt to Kola Ramarao and also in order to settle down permanently in the Tirunalveli Ashram, in Tamil Nadu State, defendants 1 and 2 wanted to dispose of their joint family property at Janagaraddigudem and at Tade-palligudem, they published a notice in the daily newspaper 'Andhra Prabhat', dated 14-10-1980, putting the suit property for sale. They also informed others in the surroundings about their intention, to sell the above property. Plaintiffs, coming to know about the intention of defendants 1 and 2, and after seeing the publication in the newspaper, approached defendants with a view to purchase the plaint schedule property. First defendant informed the plaintiffs that he is selling the property in order to discharge the antecedent debts of his family and also with a view to permanently shift to Tirunalveli in Tamil Nadu State. Plaintiffs, on enquiries, also came to know about the mortgage of the schedule proper in favour- of one Kola Ram-rao, and the other liabilities of the defendants to their creditors. The plaint schedule property was in a very neglected condition, which required heavy expenditure for repairs and renovation. Defendants are also related to the plaintiffs. Plaintiffs approached the defendants through one T.V.A. Narasimha Rao, one T. V. A. Jagannadha Rao (D.W.2) T. Baipiraju and M. Nageswara Sastry (P. W. 2). T. V. A.: Narasimharao and T. V. A. Jagannadha Rao, mentioned above, are the brothers of the wife of the 1st defendant, Bapiraju is the mother-in-law of the 1st defendant. T. V. A. Narasimha Rao is also the father-in-law of the second plaintiff. On 31-8-1981, a settlement was reached between the plaintiffs and defendants, in the presence of the mediators mentioned above, whereby the plaintiffs agreed, to purchase and the defendants agreed to sell the plaint schedule property for Rs. 1,02,900.00; defendants should discharge the mortgage debt due to Kola Ramarao. The said settlement was reduced to writing in Ex. A.1 as a sale agreement on that day, i.e. 31-8-1381, which was attested by T. Bapiraju, T.V.A. Narasimharao and T. V. A. Jagannadharao (D.W. 2). P.W. 2 is the scribe of the said agreement, which was executed at Jangareddigudem. It was scribed by Makkapati Nageswara Sastry. The terms of the said agreement, Ex. A.1, amongst others, are as under:-- a) The price shall be Rs. 1,02,900.00; b) An advance of Rs.22,900.00 should be paid at the time of agreement of sale; c) Out of the balance of Rs. 80,000.00, the plaintiffs have to pay Rs. 10,000.00 oh or before 1-10-1981 and the balance of Rs. 70,000.00 by the end of December, 1981; d) If the plaintiffs fail to pay the balance, by 31-12-1981, the same has to be paid with interest at Rs. 1.00 per mensum; e) The area of the site agreed to be sold is 566 square yards. On measurement, excluding the three terraced shops on the east, if the site is less, the price has to be proportionately reduced; f) The site has to be measured before Registration and the area is to be arrived at, and the price has to be paid proportionately; g) In taking measurements, the half share of the well in the south-western corner and the compound wall on the western side, have to be included; h) If the defendants are absent from Jangareddigudeni to register the document, they agreed to come to Jangareddigudem to register the document, on prior written intimation of the date fixed for registration; and i) Possession of the schedule property shall be delivered at the time of registration; j) The stair-case along the northern wall' of the northern godown, out of the three godowns on the east retained by the defendants and intended to reach the terraced roof of the godowns, and the sun-shade extending to the north of the said northern wall, shall be removed by the plaintiffs at their cost, without causing any damage to the northern wall, and the defendants shall not raise any objection for the removal of the above items; k) The defendants shall not object if the plaintiffs close the window by fixing metal-sheets or wooden sheets to that wall, if in the opinion of the plaintiffs' the window causes nuisance to the right of privacy, and the defendants shall not object for that course; and l) The defendants shall convey the property free from all encumbrances.

(3.) In accordance with the above terms of the agreements, plaintiffs paid a total amount of Rs.78,900.00, by 2-6-1992, to the first defendant as per the endorsements, Exs. A.3 to A.9, made on Ex. A. 1, by the 1st defendant in his own hand and duly signed by him. The plaintiff's are always ready and willing to perform their part of the contract, but the defendants have been postponing the same on some pretext or the other. First defendant also promised to discharge the mortgage debt due to Kola Ramarao and obtain return of the mortgage deed and execute the sale deed in respect of the suit schedule property before leaving to Tirunalveli. Plaintiffs could not secure the presence of the defendants as they are staying at Tirunalveli, in order to measure the site for arriving at the exact amount of balance of consideration to be paid for obtaining the sale deed. After the 1st defendant returned from Tirunalveli, in the presence of mediators, plaintiffs demanded execution of the sale deed by discharging the mortgage debt due to Kola Ramarao and after measuring the site. First defendant failed to comply with the same. Kola Ramarao gave a notice Ex. A. 10 to the first defendant as well as plaintiffs demanding payment of the amount due to him under the mortgage. After receipt of notice, plaintiffs again demanded the first defendant to discharge the mortgage debt and obtain return of the mortgage bond, receive the balance of sale consideration as per the terms of the agreement and execute the sale deed in their favour. Defendants failed to discharge the mortgage debt and also did not comply with, the terms o Ex. A.1 agreement by executing the sale deed in favour of the plaintiffs. Plaintiff, therefore, issued a registered notice on 21-11-1983 under Ex. A.12 to the defendants, demanding discharge of the mortgage debt and for complying with the other terms of the sale agreement, Ex. A. 1. This notice was received by the defendants on 30-11-1983, and the defendants gave a reply under Ex. A. 13, dated 9-12-1983, admitting the execution of the agreement of sale, Ex. A. 1 and also the receipt of part of sale consideration. In their notice, the plaintiffs denied the other averments in the reply notice of the defendants, viz., that they (plaintiffs) threatened the 1st defendant for execution of the sale deed in their favour. Plaintiffs also denied (hat they approached the 1st defendant through one K. Vidyadhara Rao, in the last week of September, 1983 in the presence of Sarvasri A. Venkataratnam, T. V, A. jagannadha Rap, and T, V. A. Narasimha Rao to settle the dispute. They denied all those allegations made by the defendants and also stated that they are all false and concocted. Plaintiffs categorically stated that there was no such settlement as claimed by the defendants, and the claim of the defendants that the sale agreement along with the alleged letter of settlement was kept with T. V. A. Jagannadharao is false. Plaintiffs claimed that as there is a steep rise in the prices of properties the defendants are evading execution of sale deed in terms of Ex. A.1, agreement. Plaintiffs are always ready and willing to deposit the balance of sale consideration as and when required to do so by the Court. Plaintiffs claim that mere decree for specific performance of the contract of sale, Ex. A. 1 will not meet the ends of justice, as the defendants postponed execution of the sale deed by setting up a false case of cancellation of the agreement by a subsequent settlement, and successfully deprived the plaintiffs of the possession of the suit schedule property for more than three years. Plaintiffs, therefore, claimed a sum of Rs. 10,000.00 by way of compensation from the defendants, in addition to the specific performance of the contract, on account of the loss sustained by them.