HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE B.N. RAO NALLA C.C.C.A.No. 431 of 2003 Date: 11-04-2011 Between: B. Kusumanth ……… Appellant and Kummetha Venkat Ram Reddy and another ……… Respondents HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE B.N. RAO NALLA C.C.C.A.No.431 of 2003 JUDGMENT: (Per BPR, J) The appellant is the sole defendant who, by way of this appeal under Section 96 of the Code of Civil Procedure, inter alia, seeks to assail the correctness of the judgment and decree, dated 28-10-2003 in O.S.No.458 of 1998 on the file of the X Additional Chief Judge (Fast Track Court), City Civil court, Hyderabad, in decreeing the suit filed by the plaintiffs-respondents herein, inter alia, seeking for specific performance of the suit agreement. Heard Sri V. Venkataramana, learned senior counsel appearing for the appellant and Sri D. Prakash Reddy, learned senior counsel appearing for the respondents herein. In brief, the facts of the case are that in the suit, the claim is based upon an alleged agreement, dated 20-08-1995, whereunder the defendant agreed to sell the suit property for a total consideration of Rs.12,75,000/- of which an advance of Rs.50,000/- was received on the same day. According to the agreement, certain terms contemplate the payment of consideration and also obtaining of necessary permissions and clearance of the litigation, if any. According to the plaintiffs, even though they have paid substantial amount of Rs.2,50,000/- on 14-09-1995, it had come to their notice that a suit has been filed by one Smt. Nagamma in O.S.No.1847 of 1988 on the file of the IV Assistant Judge, City Civil Court, Hyderabad, and the same was dismissed and against which an appeal in A.S.No.166 of 1996 is pending in this Court. Even though the plaintiffs gave offer and sent notices to the defendant, there is no proper response. Further, in view of certain acts on the part of the defendant in trying to negotiate the property to third parties, the plaintiffs filed a suit in O.S.No.2217 of 1998 on the file of the VII Junior Civil Judge, City Civil court, Hyderabad, which was subsequently withdrawn on 22-09-1998. Since there is refusal on the part of the defendant in proceeding with the completion of the transaction, the plaintiffs filed the suit. Contesting the suit claim, the plea of the defendant was that it is the plaintiffs who had, in fact, committed the breach especially in regard to the payments as per the agreement and further nothing is there to show that the plaintiffs were ready and willing to perform their part of contract. Therefore, having regard to the other proceedings as well in O.S.No.1847 of 1988 and O.S.No.2217 of 1998, the agreement of sale has become unenforceable one and accordingly no relief can be granted. On these and other allegations as contained in the respective pleadings, the Court below framed the following issues: 1) Whether the plaintiff is entitled for specific performance of suit agreement dated 20.08.1995? 2) Whether the plaintiffs committed breach of their agreement and the suit agreement is unenforceable? 3) Whether the plaintiff is entitled for refund of Rs.3 lakhs with interest at 36% p.a. in the event of not being entitled for decree for specific performance? 4) To what relief? During the course of trial, both sides produced their evidence. On behalf of the plaintiffs, PWs.1 and 2 were examined and Exs.A-1 to A-10 were marked. On behalf of the defendant, she herself was examined as DW-1, however no documents were marked. Considering the entire evidence and the material on record, the Court below decreed the suit holding that the plaintiffs are entitled to the relief of specific performance of the said agreement, which was marked as Ex.A-1, and a direction was given to execute and register the sale deed in favour of the plaintiffs. Hence, the appeal. The learned counsel appearing for the appellant herein mainly submitted that there is no question of any breach on the part of the defendant and admittedly on the date of execution of the agreement no litigation was pending and it is only after satisfaction of the title, the plaintiffs have proceeded with the agreement. The proceedings in the other suit filed by one Nagamma would not create any hurdle and therefore, the breach is only on the part of the plaintiffs. Further it was also contended that the plaintiffs have failed to establish their readiness and willingness at all times and also about the availability of the funds etc. The very demand by issuance of notice is after more than one year and four months and therefore, there are certain laches. That apart, the plaintiffs are fully aware of the litigation and they themselves got impleaded and therefore, no discretion can be exercised under Section 20 of the Specific Relief Act. It is also contended that the plaintiffs have sought for two alternative reliefs and yet, the Court below has granted only the relief of specific performance when the circumstances indicate otherwise. The aforesaid submissions were sought to be repelled on behalf of the plaintiffs-respondents herein on the ground that except making such bald and sweeping allegations, nothing has been substantiated in rebuttal by the appellant to convince any breach on their part and therefore, the breach is only on the part of the appellant and thus the Court below has rightly decreed the suit. All other aspects, as pointed out by the appellant, are not of germane nor would have any relevance to the issue. As long as the plaintiffs have made out their case about the agreed terms in pursuance of an agreement and there being no breach on their part, they would be entitled to the relief straightaway than going for any alternative as well. It is also pointed out that admittedly the proceedings in the aforesaid suits were pending of which one appeal is also pending in this Court and hence, nothing can be attributed against the plaintiffs-respondents. In view of these and other submissions made across the bar from both sides, the only point, which ultimately arises for consideration, is as to whether on the facts and circumstances, the plaintiffs are entitled for the relief of specific performance of the agreement. The case of the plaintiff gets culled out in pursuance of an agreement in Ex.A-1, dated 20-08-1995 in respect of which there is no dispute. The plaintiff No.1 herself was examined as PW-1 and PW-2 is another witness in support of the plaintiffs. The other facts, which went undisputed, are regarding the payment of Rs.50,000/- as advance and Rs.2,50,000/- on 14-09-1995, which is evident from the due acknowledgements issued under Exs.A-2 and A-3. Thus by 15-12-1995, the plaintiffs had paid Rs.3,00,000/-. The other requirements of obtaining the income tax clearance certificate and non-encumbrance certificate as contemplated under the agreement apart from the other terms, have remained totally unattended to. There is no dispute to the fact that a suit was filed by one Nagamma in O.S.No.1847 of 1988 in the year 1988 itself and admittedly an appeal in A.S.No.166 of 1996 is also pending. It is also not in dispute that subsequently the plaintiffs have filed another suit in O.S.No.2217 of 1998 and the same was withdrawn at a time when there has been some exchange of notices. The exchange of notices also is not in dispute and there have been demands and counter demands. In rebuttal, except examining the defendant herself as DW-1 and denying about the claims of the plaintiffs and attributing breach to them, nothing has been pointed out. No material is forthcoming in support of the defence to cast any spell on the case of the plaintiffs or at least to attribute a breach on their part. A reading of the documents filed on behalf of the plaintiffs commencing from Ex.A-1 and also the sequel of notices issued from both sides running from Exs.A-4 to A-9, would amply throw the surrounding circumstances which had ultimately lead or compelled the plaintiffs to approach the Court seeking the relief of specific performance. The assertions made by the appellant, both in the pleadings and as well in her depositions as DW-1, are more unassumed and unsupported by any cogent evidence and the material. There is no explanation as to why in defence, she could not have elaborated in the best manner to attribute something against the plaintiffs. Whereas there being total failure on her part, it cannot be said that there is any lapse on the part of the plaintiffs. No doubt, inspite of existence of agreement and proving their own case by the plaintiffs, still the discretion totally vests in the Court under Section 20 of the Specific Relief Act to grant a decree or not. There is also no dispute in regard to the reliefs as sought for by the plaintiffs. But, however, as rightly pointed out by the Court below and especially the reasons given in support thereof, the breach is more on the part of the appellant rather than that of the plaintiffs. We have perused and considered the entire evidence and the material on record and once again we are satisfied with the reasons given by the Court below and we do not find any other reason, much less any attempt has been made on behalf of the appellant to come to any contra conclusion or to show that the findings of the Court below are in any way vitiated apart from perverse or otherwise. We once again reiterate that, as rightly pointed out by the Court below, the plaintiffs are entitled for the relief of specific performance of the agreement. There are no merits in the appeal. The Appeal is, accordingly, dismissed. No order as to costs. _________________ B. PRAKASH RAO, J ________________ B.N. RAO NALLA, J Date: 11-04-2011 YCR