THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.2 OF 2001 Date: 23-02-2011 Between: Tatavarthi Sarveswararao .. Appellant And Koppisetti mangadevi .. Respondent THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.2 OF 2001 JUDGMENT: The appeal is directed against the judgment and decree dated 30.08.2000 passed by the learned Senior Civil Judge, Amalapuram, East Godavari District. The plaintiff in O.S.No.85 of 1992 on the file of the Senior Civil Judge, Amalapuram, is the appellant herein. The suit was filed for specific performance of the contract of sale dated 16.10.1991 or in the alternative for refund of the advance money. 2. The allegations in the plaint goes to show that the defendant is the owner of the schedule property and she agreed to sell the same for a consideration of Rs.85,000/- and executed a contract of sale on 16.10.1991 having received Rs.50,000/- as advance the balance was agreed to be paid within six months i.e. on or before 15.04.1992. The plaintiff was ready and willing to perform the contract and offered to pay the money and the defendant has been postponing the same on one pretext or the other. The plaintiff got issued a notice but the defendant gave a reply with false allegations. Hence, the suit for specific performance or in the alternative for refund of the advance amount with damages of Rs.30,000/-. 3. The defendant filed written statement denying the allegations in the plaint and contending that the suit agreement is a rank forgery and no advance was paid as claimed in the plaint. There was no need for the defendant to sell the schedule property. The husband of the defendant received a registered notice on 18.03.1992, which was issued by the father of the plaintiff alleging that a sum of Rs.25,000/- was borrowed by him and a promissory note was executed. So also the mother and brothers of the plaintiff got issued notices alleging that the husband of the defendant borrowed moneys. A reply notice was given to the plaintiff with all the particulars, alleged readiness and willingness to perform the part of the contract, is not correct. Therefore, the defendant pleaded for dismissal of the suit. 4. On the basis of the above pleadings, the following issues were framed for trial: 1. Whether the suit agreement of sale dated 16.10.1991 is true, valid and binding on the defendant? 2. Whether the plaintiff is entitled for specific performance of the suit agreement of sale? 3. To what relief? 5. On behalf of the plaintiff, P.Ws.1 to 3 were examined and marked Exs.A-1 to A-7 and on behalf of the defendant, D.W.1 was examined and no documents were marked. 6. After considering the material and the evidence on record, the learned Senior Civil Judge, Amalapuram dismissed the suit of the plaintiff and aggrieved by the said judgment and decree, the present appeal is filed. 7. The points that arise for consideration are: 1. Whether the suit agreement of sale dated 16.10.1991 is true? 2. Whether the plaintiff is entitled for the specific performance of the contract or in the laternative refund of the advance money? 3. Whether the judgment and decree passed by the learned Senior Civil Judge is legal and sustainable? POINTS 1 to 3: 8. This being a suit filed for specific performance of the contract of sale, the execution of which is denied by the defendant, the burden is on the plaintiff to prove the execution. According to the case of the plaintiff a sum of Rs.50,000/- was paid on the date of agreement Ex.A- 1 and time for performance was fixed at six months. The agreement of sale was said to have been executed at the house of the plaintiff. It was also claimed by the plaintiff that in proof of the truthfulness of the transaction the plaintiff has filed the original sale deed Ex.A-4 and the plea of the defendant is not correct. Admittedly, the plaintiff has not alleged in the plaint about several suits filed by his family members against the husband of the defendant. In cross-examination, it was elicited from P.W.1 that he filed a suit against the husband of the defendant and it was decreed. He denied at the knowledge of his brother and mother filing the suits and also the factum of the husband of the defendant filing Insolvency Petition but he admits that when the husband of the defendant was brought under arrest in execution he represented that he will file the Insolvency Petition. He is not able to say whether the debts said to have been borrowed by the husband of the defendant is prior to Ex.A-1 or subsequently. Evidently, the plaintiff is a businessman and husband of the defendant used to purchase silver ornaments for sale. In cross-examination, he asserted that the husband of the defendant represented to him that the debts incurred by the husband of the defendant have become more and, therefore, they wanted to sell the shop and also promised to discharge his promissory note debt subsequently and as such he paid advance of Rs.50,000/-. Therefore, from the above circumstances, it is quite clear that the husband of the defendant was indebted to the plaintiff and others. Suits were also said to have been filed, evidently, after the demand by the plaintiff for the said amounts and the refusal by the husband of the defendant. Therefore, it is quite possible for any prudent person to have insisted for discharge of the debts due to him and no person would have paid Rs.50,000/- as advance to the defendant when the family of the plaintiff and the plaintiff himself have to get money from the husband of the defendant. In fact, when the plaintiff is aware that the sale itself is for discharge of the debts, he would have definitely asked for the discharge of his debt. Therefore, this circumstance clearly creates a cloud over the truthfulness of the version of the plaintiff. 9. P.W.2 is the attestor of the agreement and the scribe is said to be one Janaki Rao. P.W.2 does not speak about the presence of the husband of the defendant. The reason for P.W.2 to visit the house of the plaintiff is not clear and was not able to say for what purpose he has gone to the house of the plaintiff on that day. He also stated that by the time he went, Ex.A-1 was completely written. Therefore, the talks, if any, might not have taken place in his presence. He claims that the defendant gave some documents to the plaintiff at the time of Ex.A-1 but evidently, he was not able to confirm as to what were the documents. According to him, his acquaintance with the defendant is also not very much and after the agreement he claims to be seen the defendant for the first time in the Court. Except this evidence, the plaintiff has not adduced any other evidence to prove the truthfulness of the transaction nor the probable reason for sale of the property. 10. Though the original sale deed Ex.A-4 is said to have been given to the defendant at the time of the transaction, it was not filed along with the plaint. Even in the evidence, P.W.1 did not state so at the earliest point of time. Learned counsel for the appellant contends that the agreement refers to the handing over of such a document. If such is the case and if the plaintiff is in custody of the said document, the document should have been produced along with the plaint. It is quite possible that since the husband of the defendant has borrowed heavily from others, this document might have been in custody of somebody and produced before the Court by the plaintiff. 11. The contention of learned counsel for the defendant is since the husband of the defendant indebted and has gone in insolvency the members of the family of the plaintiff in order to grab the property of the defendant, the agreement was brought into existence. 12. This contention appears to be probable since when the family of the plaintiff has to get money from the defendant’s husband without deducting the payments, the advance of Rs.50,000/- would not have been given. It was suggested to her that even the written statement was not filed by her and the signature was written in English whereas she does not know signing in English. This cannot be taken into consideration since she has sworn on oath the facts about the contract. If really, the husband of the defendant was present at the time of the agreement, there is no reason as to why his signature was not taken by the plaintiff. Added to that, the lower Court has expressed a doubt about the genuineness of the agreement since the stamps, which were relied on by the plaintiff, were released in September, 1990 and the plaintiff is said to have purchased the same on 16.10.1991 and evidently, they have not purchased on the date of agreement and they were ante-dated stamps. It is also suspicion against truthfulness of the agreement. The learned Senior Civil Judge has given sufficient reasons to doubt the genuineness of the contract of sale and the evidence adduced on behalf of the plaintiff clearly throws a doubt about the genuineness and there are several improbabilities about his truthfulness and I do not find any reason to interfere with the judgment and decree dated 30.08.2000 passed by the learned Senior Civil Judge, Amalapuram. Accordingly, the points are answered. 13. In the result, the appeal is dismissed but under the circumstances no costs. ________________________ N.R.L.NAGESWARA RAO, J -02-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.2 OF 2001 Date: -02-2011 MR