A MARIKAR Vs. SRI SATYANARAYANA FILMS

JUDGEMENT

(1.) The decree of the suit with costs for specific performance by the judgment and decree dated 18.6.2001 in OS No.93 of 1993 on the file of the Principal Senior Civil Judge's Court, Visakhapatnam led the unsuccessful defendant to file the present appeal.

(2.) The plaintiff filed the suit for specific performance of the agreement of sale dated 3.6.1989 in respect of the vacant site of 1500 square yards with a compound wall in S.No.11/4F of Butchirajupalem Village within Visakhapatnam Municipal Corporation limits. The plaintiff claimed that the defendant executed the suit agreement in favour of the plaintiff, a registered partnership firm represented by its Managing Partner Konathala Apparao agreeing to sell the suit site for Rs.3,80,000/- and delivered possession under the agreement on receiving an advance of Rs.20,000/-. A registered sale deed was agreed to be executed within three months and urban land clearance certificate, income tax clearance certificate, etc., were undertaken to be obtained by the defendant. The plaintiff kept Nalu Appanna as watchman who is living in the suit land in a thatched and A.C. sheet shed and the plaintiff got a compound wall constructed all around at a height of 5 feet for protection against illegal encroachments. The plaintiff was always ready and willing to perform its part of the contract and was demanding the defendant to execute a registered sale deed. But the defendant was postponing on some pretext or the other and did not obtain the clearance certificates as agreed. To the lawyer's notice dated 6.3.1992 issued by the plaintiff, the defendant gave a reply claiming the consideration to be different and possession to be not delivered. The plaintiff sent a rejoinder on 18.5.1992 enclosing a copy of the sale agreement as requested by the defendant, on which the defendant remained silent and hence, the suit.

(3.) The defendant resisted the suit contending that the plaintiff has to strictly prove its registration and the authority of Konathala Apparao. The defendant executed the suit agreement, but it was neither duly stamped nor registered as per the law in force. The possession of the suit site was never delivered to the plaintiff and the suit agreement is unenforceable, inoperative and void. The plaintiff had to obtain the clearance certificates and the plaintiff miserably failed to perform its part of the contract though time was essence of the contract under the inadmissible and void document. The defendant never undertook to obtain any clearance certificates and any unauthorised construction of any compound wall does not confer any right, title or interest on the plaintiff. The defendant gave proper and prompt reply to the notice dated 6.3.1992 and the suit is barred by time. The suit has no cause of action and is incorrectly valued. The plaintiff is not entitled to any relief and hence, the defendant sought for the dismissal of the suit with costs.