PENUMASTA NAESHIMHA RAJU Vs. VALLURI JAYA PRAKASA BABU

JUDGEMENT

(1.) Defendant in the suit filed this appeal against the judgment and decree dated 27-9-2002 in O.S No. 12/95 of the Senior Civil Judge, Vizianagaram, granting specific performance of an agreement of sale dated 31-7-1991 in favour of the plaintiff.

(2.) The parties herein will be referred to as arrayed in the suit.

(3.) The undisputed facts briefly stated as under : The defendant who is the absolute owner of the plaint schedule land, ad-measuring Ac.4-00 in S.No.141, Patta No.450 situate in Ardhannapalem in Kothavalasa Panchayat Area, Vizianagaram District offered to sell the same to the plaintiff, who agreed to purchase on the terms and conditions as reduced into writing under an agreement of sale dated 31-7-1991 Ex.A-1, for a consideration of Rs.9,75,000/-, on the premise that the extent being Ac.4-00 and paid a sum of Rs.2,45,000/- as advance on the date of execution of the agreement, and agreed to pay the balance of sale consideration within a period of four months. If the payment is not made within the said period of four months, the plaintiff would pay interest at the rate of 21% per annum. Whereas the defendant agreed to execute the sale deed in favour of the plaintiff or his nominee either by way of one sale deed or sale deeds as desired by the plaintiff. The plaintiff stated that the defendant agreed to get the land measured in the meanwhile through the Government Surveyor. On such survey, if the total extent is found short of Ac.0.05 cents out of Ac.4-00 then the plaintiff would pay entire sale consideration to the defendant. If the shortage is more than Ac.0.05 cents then sale consideration should be reduced proportionately. Though it was agreed that the defendant would deliver possession of the property on registration of the sale deed, the defendant put the plaintiff in possession of the property immediately to enable him to get the land surveyed. Accordingly, the plaintiff got the land surveyed, levelled the same and got planted stones demarcating the plots. In the said process, it was noticed that the total land is ad-measuring Ac.3-78 cents. The plaintiff invested huge amount for the purpose of levelling and plotting, expecting that the defendant would honour the agreement and execute the sale deed within the period of four months. While so, the plaintiff received a caveat petition filed by one Gorapalli Satyam Naidu claiming title over an extent of Ac.1-60 cents of the plaint schedule land. On receipt of the same, the plaintiff contacted the defendant by phone who in turn assured him that he would speak to Sathyam Naidu and settle the issue. The plaintiff also got verified the village records and other revenue records. The plaintiff came to know that on contacting Sathyam Naidu by the defendant, he (Satyam Naidu) objected for sale of the extent over which he claimed a right. As the defendant failed to establish his title to the entire plaint schedule land to the satisfaction of the plaintiff, he made further investigation into the claim of Sathyam Naidu and obtained all documents and after satisfying himself about the title of the defendant to the plaint schedule land, it was agreed that defendant would execute the sale deed for the exact extent found on survey on payment of balance of sale consideration. However, when the plaintiff offered to pay the balance of sale consideration the defendant demanded interest thereon at 21% from the date of the agreement. When the plaintiff declined to pay the same on the ground that delay in taking the sale deed was due to his (defendant) fault, as he has not settled, and agreed to pay the balance of sale consideration and take sale deed as per the terms of the agreement. In spite of convincing the defendant, he was reluctant to execute the sale deed. Therefore, the plaintiff having been left with no other option/alternative got issued a legal notice dated 6-11-1994 demanding the defendant to receive balance of sale consideration and execute the sale deed. The same was replied by the defendant on 17-11-1994 refusing to comply with the demand made by the plaintiff making a reference of notices dated 6-8-1992 and 15-9-1992 got issued by him. The plaintiff despite diligent searches could not produce said notices. Therefore, he could not advert to the contents of the said notices and he would controvert the same at an appropriate time and the plaintiff filed the above suit for specific performance seeking a direction to the defendant to execute the sale deed by receiving the proportionate sale consideration of Rs.8,97,750/- being the value of the land Ac.3-78 cents or in the alternative to refund Rs.2,45,000/- paid as an advance along with interest thereon at 18% per annum from 31-7-1991 till the date of suit and for future interest on Rs.2,45,000/-at 18% per annum from the date of suit till the date of realization.