Y V NARASIMHA SARMA Vs. S APPALA RAJU

JUDGEMENT

(1.) In the suit from out cf which this appel arises, the plaintiff, respondent herein, sought a decree against the appellants herein who are deiendants 1 to 3 for specific performance of an oral contract for sale entered into on 16-11-79 for purchase cf the suit property comprising a terraced and tiled house with an appurterant vacant site of about two and half acres situate at Dasannapeta, Vizianagaram town belonging to the first defendant. The plaintiff asked for an alternative relief by way of a decree for Rs. 75,000/- towards damages. The plaintiff and defendants 2 and 3 are residents of Vizianagaram. The first defendant, the owner of the suit property is a resident of Anandapuram village about 20 Kms. from Vizianagaram. The case of the plaintiff as averred in the plaint is that the first defendant offered to sell the suit house to him through P.W-2 Simhambhatla Laksbminadha Rao alias Sidhanthi of Vizianagaram and so they both went to Anandapuram on 7-11-79, met the first defendant at his house and enquired about the sale of the suit property. The first defendant promised that he would come to Vizianagaram on 10-11-79 and finalise the transaction. He came to Vizianagaram on 10-1-79 to the house of P.W-2 and had preliminary negotiations, and fixed the date 16-11-79 "for completion of the sale negotiation." On 16-11-79 'at about 2 P.M., the plaintiff and the first defendant met at the house of P.W-2 Sidhanthi. The first defendant finally agreed to sell the suit property for Rs. 75,000/-and when the plaintiff offered and advance of Rs. 2,000/- the fust defendant stated that the plaintiff would come to his house at Anandapuram along with P. W-2 on 21-11-79 "pay him an advance of Rs. 20,000/- or Rs. 25,000/-" and asked the plaintiff to bring to non-judicial stamp papers worth Rs. 5/- each for drafting formal agreement of sale (locally known as Kraya Puroni) in duplicate. To this suggestion, the plaintiff replied that he cannot adjust more than Rs. 20,000/- by that day and the first defendant agreed to the same. It was further averred that on 18-11-79 the first defendant came to Vizianagaram and sent word to the plaintiff through PW-2 Sidhanthi that the amount of Rs. 20,000/- may be brought either in currency notes of the denominations of ten each or fifty or alternatively by means of a draft drawn en the Co-operative Central Bank. Vizianagaram in favour of the 1st defendant. On 21-11-79, the plaintiff obtained a demand draft for Rs. 20,000/- on the said bank and proceeded to Anandapur village along with PW-2 in a taxi taking with him two non-judicial stamp papers. When they met the first defendant at his house at 3 PM on 21-11-79, the latter insisted upon payment of Rs. 25,000/- as advance instead of Rs. 20,000/- as earlier agreed to. The plaintiff stated that he would adjust the additional sum of Rs. 5,000/- within a few hours and requested the first defendant to come along with him to Vizianagaram where the money would be paid. Alternatively he offered to bring that sum from Vizianagaram in a few hours by rushing there in the same taxi. It was alleged that because of the mischievous intervention of defendants 2 & 3 who meanwhile perhaps made higher officers, the first defendant evaded to execute the agreement of sale and receive the advance. The plaintiff got issued a registered notice Ex. A-4 on 22-11-79 through his advocate to which a reply notice Ex. A-8 was sent by the first defendant stating that there was no oral agreement for sale on 16-11-79 and that he entered into an agreement of sale with defendants 2 and 3 agreeing to convey the property and obtained an advance of Rs. 30,000/-. After issuing a rejoinder Ex. A-9 to the first defendant making a copy of the same to the defendants 2 and 3, the suit was instituted stating that the plaintiff was always willing and ready to perform his part of the contract, and defendants 2 and 3 are not at all bona fide purchasers for valuable consideration and as such they are bound by the terms and conditions of the oral contract entered into by the first defendant with the plaintiff on 16-11-79.

(2.) Resisting the suit the first defendant filed written statement averring that the property was worth one lakh rupees and he was getting offers from all intending purchasers and the offer was open to all and not exclusively to the plaintiff alone. He admitted that negotiations were carried on by him with the plaintiff but ultimately the same fell through as the plaintiff could not come up to his demand, that he was not willing to part with the house for less than Rs. 90,000/- and any intending purchaser must given an advance of Rs. 30,000/-. The offer of the plaintiff for Rs. 75,000/- was not accepted by him. Defendants 2 and 3 offered Rs. 85,000/- and paid an advance of Rs. 30,000/- under a written contract for sale executed on 24-11-79 in duplicate, Exs. B-1 and B-3. It was also pleaded that the plaintiff was aware that the defendants 2 and 3 were also trying to purchase the suit property and having been frustrated in his attempts to secure the property the plaintiff came up with a false plea about a prior oral agreement of sale in his favour. The discussions with the plaintiff never passed beyond the stage of negotiations and they did not fructify into an oral agreement of sale. P. W-2 Sidhanthi, who is alleged to be the mediator and negotiator of the oral agreement is plaintiff's man and was not employed or commissioned by the first defendant to arrange the sale of the suit house.

(3.) The second defendant in his written statement pleaded that in order to have a wrongful gain for himself, the plaintiff concocted the oral agreement for sale. He and the third defendant offered a sum of Rs. 85,000/- to the first defendant and paid an advance of Rs. 30,000/- and the deal was concluded on 24-11-79, and an agreement in writing was executed on that day. The plaintiff was aware that the defendants were carrying on negotiations for purchasing the property.