CHENNUPATI SATYANARAYANA Vs. MUNDRU VENKATESHWARLU

JUDGEMENT

(1.) THIS is a plaintiff's appeal against the dismissal of suit for specific performance of an agreement of sale-Ex. A1 dated 17. 11. 1984. The trial Court, while declining to grant specific relief sought for by the plaintiff, has decreed the suit to the extent of refund of advance amount with interest. Since the relief of speci fic performance was denied to the plaintiff, the present appeal is filed. The parties will be referred to as they are arrayed in the suit.

(2.) BRIEF facts. The defendants 1 and 2, who are father and son, are owners of the suit schedule property which consists of two items of agricultural land. The plaintiff alleges that in the suit schedule property mango and cashew nut gardens were existing. The defendants offered to sell the suit schedule property admeasuring Ac. 10-45 cents at the rate of Rs. 11,200/- per acre and out of total sale consideration of Rs. 1,17,040/- , an amount of Rs. 14,000/- was paid by the plaintiff as advance on the date of agreement of sale-Ex. A1, dated 17. 11. 1984. The plaintiff has extracted the gist of several clauses of the agreement of sale in para-3 of the plaint, regarding which, there is any amount of controversy, as the defendants claimed that several such clauses as extracted in para-3 of the plaint are not part of Ex. A1. The plaintiff further alleges that she paid rs. 3,000/- on 24. 12. 1984 towards part payment of balance of sale consideration, but neither there is any receipt nor any endorsement of such part payment on ex. A1. The plaintiff also claims that she purchased non-judicial stamps of worth rs. 3,600/- through a document writer Vaka Gurumurthy at Sub-Treasury, rajahmundry so as to obtain the registered sale deed from the defendants. The plaintiff alleges that number of times she had requested the defendants to clear off the encumbrance on the property and obtain income tax clearance certificate, but the defendants were postponing the execution of sale deed on one pretext or the other. The plaintiff is alleged to have later cancelled the non-judicial stamps and issued a telegraphic notice-Ex. A2 on 26. 2. 1985, followed by another notice dated 21. 3. 1986-Ex. A3. It is alleged that the defendants did not give any reply either to Ex. A2 or to Ex. A3 notices. It is also alleged that there were 185 mango trees, 50 cashew nut trees, 26 sapota trees, 6 big teak-wood trees and 30 small teak-wood trees in the suit schedule property and after exchange of notices in 1986, 6 big teak-wood trees, 15 mango trees were cut away by the defendants causing wrongful loss to the plaintiff to the tune of rs. 36,000/ -. The plaintiff also alleged that she invested Rs. 1,000/- for spraying pesticides in the mango garden in the year 1985 to realize the usufructs. Thus the plaintiff claimed that she is entitled to reimbursement of damage caused to the trees as well as the amount spent on pesticides. Once again the plaintiff issued notice-Ex. A6 on 18. 12. 1986 to the defendants and ultimately filed the present suit as the defendants committed breach of Ex. A1. The plaintiff has alleged that she is ready and willing to deposit the balance of sale consideration before the trial court as and when directed. The relief claimed in the suit is one for specific performance of the agreement of sale or in the alternative a decree for Rs. 68,000/- together with interest @ 12% P. A. by creating charge on the suit schedule property. The said amount of Rs. 68,000/-comprises Rs. 14,000/- towards advance payment under Ex. A1, Rs. 3,000/- said to have been paid on 24. 12. 1984, Rs. 1,000/- said to have been spent on pesticides and Rs. 50,000/- towards damage caused to trees which were cut away by the defendants.

(3.) THE defendants filed a written statement admitting execution of Ex. A1-agreement of sale and also payment of advance amount of Rs. 14,000/- at the time of agreement. They, however, denied that there was any such agreement that the defendants had to clear the encumbrance on the property before execution of sale deed and before receiving balance of sale consideration. The defendants pleaded that on the contrary it was agreed under Ex. A1 that the debts owed by the defendants to Land Mortgage Bank have to be discharged and the discharge vouchers have to be handed over to the plaintiff. They also pleaded that several conditions which are incorporated in para-3 of the plaint are incorrect. It is also alleged that the plaintiff was never ready and willing to obtain registered sale deed, though the defendants demanded her to pay the balance of sale consideration as per Ex. A1, inasmuch as the defendants had entered into ex. A1 only for the purpose of discharging the debts. The defendants denied that an amount of Rs. 3,000/- was paid by the plaintiff on 24. 12. 1984. They also disputed that the plaintiff purchased non-judicial stamps. They also disputed that there was any condition of obtaining income tax clearance certificate as alleged by the plaintiff on the ground that the defendants are only agriculturists and they are not liable to be assessed to income tax. They also alleged that even under Ex. A7-reply dated 8. 1. 1987 the defendants called upon the plaintiff to pay the balance of sale consideration, but she was not ready and willing and with a view to cover up the defaults on her part, and to get back the advance amount, the plaintiff has resorted to making correspondence starting with Ex. A2-telegraphic notice dated 26. 2. 1985. It is asserted that the defendants had replied to the telegraphic notice and therefore did not once again reply to the further notice-Ex. A3 dated 21. 3. 1986. The defendants also disputed the existence of number of trees as alleged by the plaintiff and asserted that all the trees which were existing at the time of agreement of sale still continue to exist except small mango trees which were dried up on account of drought. The claim for damage and also for Rs. 36,000/- is disputed. The plaintiff's contention that she spent Rs. 1,000/- for spraying pesticides is also denied and it is asserted that it is the plaintiff who was never ready and willing. They also disputed that the plaintiff is entitled to any amount with 12% interest and asserted that the breach of contract was committed by the plaintiff. Accordingly they prayed for dismissal of the suit.