IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) TUESDAY, THE 18th DAY OF JANUARY TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE N. RAVI SHANKAR C.C.C.A.No.103 of 1998 BETWEEN: Sri Sardar Company … APPELLANT (S) And Panch Lok Builders … RESPONDENT(S) THE HON’BLE SRI JUSTICE N. RAVI SHANKAR C.C.C.A.No.103 of 1998 JUDGMENT: Appellant is the plaintiff in O.S.No.560 of 1991 which is a specific performance suit on the file of the Court of VII Senior Civil Judge, City Civil Court, Hyderabad (trial Court). The trial Court after a contest dismissed the said suit by its judgment and decree dated 02.03.1998. Questioning the same, the plaintiff has come up with this appeal. 2. To state and decide the points which arise in this appeal the respective cases of the parties should be noted and hereafterwards, for convenience, they shall be referred to as they are arrayed in the suit. The case of the plaintiff is that it is a registered partnership firm and that on 28.12.1987 it entered into an oral agreement of sale with the defendant which is a builder to purchase flat No.6 in the first floor of the complex to be built by it. According to the plaintiff the total sale consideration for the said flat was Rs.1,40,000/- and it says that it paid Rs.20,000/- on 28.12.1987 i.e. the date of agreement itself and another sum of Rs.20,000/- on 10.05.1988 to the defendant i.e. in all Rs.40,000/- towards advance sale consideration and defendant received the said amounts and agreed to sell the flat in question. The grievance of the plaintiff is that subsequently the defendant failed to perform its part of the contract though it was throughout ready and willing to perform its part of the contract by paying the balance sale consideration and subsequently after issuing the legal notices it has been constrained to file the suit. 3. The version of the defendant is that though it agreed to sell the flat it did not specify which flat was to be sold and that the plaintiff’s version that the cost of the flat was Rs.1,40,000/- is not correct and the defendant says that the total cost of the flat was much more and it was to be calculated at the rate of Rs.260/- per sq. ft. It should be mentioned here that according to the plaintiff the area of the flat is 1000 sq. ft. and thus according to the defendant the total cost of the flat works out to Rs.2,60,000/-. The details are not necessary but the defendant’s plea is that the plaintiff was never ready to perform its part of the contract and consequently the transaction failed and it sold away all the flats to third parties and therefore the plaintiff is not entitled to any relief. It must be further noted here that though the defendant denied the receipt of Rs.20,000/- on 28.12.1987 it admitted the receipt of Rs.20,000/- on 10.05.1988 but pleaded that in view of the failure of the plaintiff to perform its part of the contract, it forfeited the said amount. 4. It would be relevant now to note the issues framed by the trial Court and the findings recorded by it. The trial Court framed in all the following seven issues in para-3 of its judgment and they are reproduced below. (1) What is the agreed rate per square feet between the parties? (2) Whether the plaintiff paid Rs.20,000/- as advance on 28- 12-1987 as pleaded? (3) Whether the receipt dated 16-5-88 is manipulated to the extent of mentioning flat number as contended by the defendant? (4) Which of the parties committed default in performing the contract? (5) Whether the plaintiff is entitled to a decree for the specific performance prayed for? (6) Whether the plaintiff is entitled to a decree for the permanent injunction prayed for? (7) To what relief? 5. After considering the oral and documentary evidence let in by both sides the trial Court answered issues 1, 2 and 4 in favour of the plaintiff but answered issue No.3 in favour of the defendant holding that there was interpolation in Ex.A.1 receipt regarding flat number and that flat No.6 was not the flat which was agreed to be sold but the defendant however agreed to sell a flat in the complex to be built. However, with regard to issues 5 and 6 it discussed the same in para-10 of its judgment and answered them against the plaintiff. The reasons given by the trial Court for answering issues 5 and 6 against the plaintiff are that by the date of the suit the defendant sold away all the flats and the plaintiff was not in a position to show that any flat is still available for sale in the complex built by the defendant. It then held that in the above view taken by it the agreement has become impossible of performance and consequently even if a decree is granted in favour of the plaintiff it cannot execute it. Holding so, the trial Court answered the issue No.7 regarding the relief also against the plaintiff and dismissed the suit. 6. It should now be noted here that the defendant did not file any cross-appeal or cross-objections questioning the findings of the trial Court on issues 1 to 4 which went against it and it therefore follows that the said findings of the trial Court on the said issues cannot be disturbed now. The scope of this appeal is thus limited to issues 5 to 7. Even among those issues, issue No.6 relates to the question of granting relief of perpetual injunction in favour of the plaintiff to restrain defendant from alienating the flat and that issue does not now survive for consideration. It may be noted that if plaintiff is entitled to a decree on issues 5 and 7 it can also in its pleadings seek recovery of possession of the flat which it says was agreed to be sold to it and therefore only the said issues 5 and 7 are taken up as points that arise in this appeal. 7. The details of oral and documentary evidence let in by both sides are given in the appendix of evidence given at the foot of the trial Court’s judgment and therefore they are not repeated here. 8. The learned counsel appearing for the plaintiff basing upon the grounds of appeal reiterated in his arguments that the trial Court was wrong in holding that all the flats were sold away and therefore it is not entitled to any relief. He further argued that the evidence on record shows that still there were flats which were available on the date of filing of the suit and consequently the trial Court ought to have granted the relief in respect of one of these flats. On the other hand, the learned counsel appearing for the defendant pointed out that the conclusions recorded by the trial Court on issues 5 and 7 plus the reasons given by it for refusing the relief of specific performance are well founded and consequently the judgment and decree under appeal need not be interfered with. The points are now taken up. Issue No.5: (Taken as point in this appeal) 9. D.W.1 Govind Kumar is the Managing Partner and D.W.2 Ashok Kumar is one of the partners of the defendant firm, while P.W.1 Sajan Lal is a partner of the plaintiff firm. There is no dispute regarding the constitution of the said partnership firms as discussed by the trial Court. Basing on the evidence of D.Ws.1 and 2 and certain answers given by P.W.1, the trial Court held that by the date of the suit which was presented on 27.04.1991 the defendant firm sold away all the flats. The plaintiff is questioning this finding of the trial Court now in this appeal. In my opinion this finding of the trial Court cannot be said to be incorrect for the following reasons. Answering questions about the sale of all the flats in the complex, P.W.1 in his cross-examination stated “I do not know whether in the said complex no flat is available now and that as I refused to pay at Rs.260/- per sq. ft, the suit flat was also sold”. At another stage, he stated “if the defendant sold all the flats prior to the suit he did it illegally”. These answers of the P.W.1 i.e. the partner of the plaintiff firm show that he is not aware about the sale of all the flats and the plaintiff has also not let in any evidence to show that any flat is still available for sale in the complex. D.W.1 in his chief examination itself stated that as the plaintiff did not get ready to complete the transaction @ Rs.260/- per sq. ft. they sold away all the flats to third parties and no flat is available now. Similarly, D.W.2 also confirmed the same. Thus the trial Court basing on the above evidence concluded that the defendant sold away all the flats by the date of the suit and there is no compelling reason to disturb its finding on this aspect. 10. It may then be noted that even assuming for a moment that the plaintiff’s version that defendant agreed to sell flat No.6 is correct, the evidence shows that it was sold away to third parties by the defendant by the date of the suit. The said third party purchaser may be a bona fide purchaser for consideration. In such an event it was the duty of the plaintiff to implead the purchaser of the said flat also to the suit as contemplated under Section 19(b) of the Specific Relief Act. The plaintiff has not impleaded that third party purchaser. In other words the failure of the plaintiff to implead that third party purchaser becomes a ground for refusing the relief to it inasmuch as the rights of the third party purchaser have also to be adjudicated in order to decide the question whether the plaintiff’s claim for the relief of specific performance can be upheld or not. 11. It may then be noted that even assuming for a moment that flat No.6 was the flat which was not agreed to be sold but a flat in the complex built by the defendant, the duty of the plaintiff is to implead all the purchasers by establishing the identity of the flat which was agreed to be sold and then claim relief against one of them who has purchased that identified flat by pleading and proving that such a purchaser was not a bona fide purchaser as contemplated under Section 19(b) of the Specific Relief Act. The plaintiff did not do this also. In other words, to repeat, as the evidence shows that the defendant has sold away all the flats by the date of the suit the plaintiff cannot be granted any relief as it failed to implead the purchaser of flat No.6 claimed by him as a party to the suit or the purchasers of one or all the flats by establishing the identity of the flat other than flat No.6 which was agreed to be sold to him. Thus, the finding of the trial Court that any decree granted for specific performance would become infructuous or cannot be executed has to be upheld. Accordingly, the finding of the trial Court on this issue No.5 is confirmed. Issue No.7: (Taken as point in this appeal) 12. In view of the finding under issue No.5, it follows that this appeal must fail and the same is accordingly dismissed with costs. The trial Court ordered the defendant to refund the amount of Rs.40,000/- said to have been received by it from the plaintiff towards part of sale consideration. As the defendant did not file any cross-appeal or cross-objection questioning that refund on any ground, it follows that the said finding cannot be disturbed. ______________________ N. RAVI SHANKAR, J 18th January, 2011. CVRK