THE HON’BLE SRI JUSTICE GHULAM MOHAMMED & THE HON’BLE SRI JUSTICE G CHANDRAIAH AS No.3093 of 2004 and Cross Objections Judgment: ( per Hon’ble Sri Justice Ghulam Mohammed, J ) This appeal is preferred by the unsuccessful defendant questioning the judgment and decree dated 16-4-2004 passed in OS No.35 of 1997 by the II Additional Senior Civil Judge, Kakinada, East Godavari District, whereby and whereunder the trial Court inter alia decreed the suit directing the defendant-appellant herein to execute the sale deed. Cross appeal is also filed by the plaintiff-respondent herein assailing the judgment of the trial Court to extent of awarding interest @ 18% per annum from 13-2-1993 till the date of deposit on the sale consideration. For the purpose of convenience, the parties hereinafter shall be referred to as arrayed before the trial Court. 2. The plaintiff filed the suit for specific performance of the agreement of sale dated 13-2-1993 executed by the defendant in his favour in respect of the suit schedule property and for other reliefs. It is the case of the plaintiff that the suit schedule property belongs to the defendant and the defendant and his family members are known to him from some time. That the defendant purchased the suit schedule property under a registered sale deed dated 20-4-1967 from Veeramreddy Kondayya and others and that it is his self-acquired property. The defendant along with the suit schedule property also purchased some other extents of land. 3. It is stated that the defendant offered to sell the suit schedule property to the plaintiff at the rate of Rs.2,00,000/- per acre and pursuant to the offer, the plaintiff also agreed to purchase the same at the said rate and after both parties, agreed, the defendant executed the agreement of sale on 13-2-1993 in favour of the plaintiff agreeing to sell the suit schedule property. At the time of execution of the said agreement of sale, the defendant received an amount of Rs.15,000/- from the plaintiff as advance from out of the total sale consideration. At the time of execution of the sale agreement, the defendant represented that he would execute the sale deed in favour of the plaintiff after receiving the balance sale consideration within one year from the date of agreement of sale. The defendant also stated to have assured that he would show his title deeds and other documents relating to the suit schedule property to the plaintiff and satisfy the plaintiff about his marketable title to the suit schedule property and his right to sell the same. That after the execution of the said agreement of sale, the plaintiff has always been demanding the defendant to produce his title deeds and other documents to show his unimpeachable title to the suit schedule property and complete the transaction. That the plaintiff informed the defendant several times that the balance sale consideration is ready and that the plaintiff is also ready to complete the transaction, but the defendant went on representing that the documents are not yet received and, therefore he require some more time for completion of the transaction. The defendant also represented to the plaintiff that he himself would intimate him after the documents are received and that he would execute and register the sale deed after taking all the necessary documents, but the defendant failed to produce the documents and has not completed the transaction even though the plaintiff periodically requested him to receive the money and complete the transaction. It is stated that under those circumstances, the plaintiff got issued a registered legal notice dated 23-12-1996 through his advocate to the defendant calling upon him to produce all his title deeds and other relevant documents showing his unimpeachable and marketable title to the suit schedule property and to execute sale deed on the requisite stamp paper in favour of the plaintiff and deliver the suit schedule property to him after receiving the balance sale consideration. The defendant received the said notice on 24-12-1996. The defendant issued a reply notice on 17-1-1997 through his advocate stating that he requires a photostat copy of the sale agreement, pursuant thereto the plaintiff’s advocate served a photo copy of the sale agreement to the defendant, but there was no reply from the defendant thereafter. That the defendant except asking for a copy of the sale agreement dated 13-2-1993, did not deny any of the averments made by the plaintiff in the legal notice issued by him. 4. It is stated that the plaintiff has been always ready and willing to perform his obligations under the agreement of sale and he has already procured the money that is to be paid to the defendant. Thus the plaintiff is entitled to the relief of specific performance or in the alternative to a money decree for refund of the part consideration amount. 5. The defendant has filed the written statement in the suit. Per written statement, the defendant denied the allegations in the plaint that he agreed to sell the suit schedule property to the plaintiff at the rate of Rs.2,00,000/- per acre. The defendant never agreed to sell the property and there is no need for him to sell the property on 13-2-1993, and that he never signed on any agreement on 13-2-1993 as alleged by the plaintiff and never executed any agreement of sale and that the allegation in the plaint that he received a sum of Rs.15,000/- is absolutely false. It was also denied that the defendant represented to the plaintiff that he will execute the sale deed within one year from the date of agreement of sale. It is further stated that he never had any contact with the plaintiff as alleged by the plaintiff and the plaintiff knew that he submitted a declaration to the Land Ceiling Tribunal, Kakinada. That the plaintiff was also aware of the fact that the defendant has no right to alienate the property or to execute any agreement of sale in view of the pendency of the land ceiling case. That the alleged agreement of sale even if true, is illegal, invalid and not binding on the defendant. It is stated that the defendant was made to sign on one hundred rupees non-judicial stamp paper and two blank papers at the time when the sister of the defendant executed an agreement of sale in favour of the plaintiff. That the plaintiff obtained the signatures on blank papers stating that they are required as security, in case the sister of the defendant failed to comply with the agreement of sale executed by her in his favour. The defendant was an attestor on the agreement of sale executed by his sister in favour of the plaintiff. The suit agreement of sale was brought into existence by misusing the signed blank papers. It was further stated that the defendant never executed any agreement of sale, that he has no right to alienate the property since it is a joint family property of the defendant and his children and there is no need or necessity for alienating the same. The suit claim is barred by law of limitation and the suit was liable to be dismissed. 6. Based on the above pleadings, the trial Court has formulated the following issues:- i) Whether the suit agreement of sale has come into existence in the circumstances pleaded by the defendant ? ii) Whether the suit claim is barred by limitation ? iii) Whether the plaintiff is entitle to the relief of the specific performance ? iv) Whether the sale agreement cannot be enforced in view of the land ceiling proceedings ? v) Whether the plaintiff is entitled to alternative relief ? vi) To what relief ? 7. To prove his case, the plaintiff examined himself as PW-1 and the scribe of the agreement of sale was examined as PW-2. The defendant got himself examined as DW-1. The plaintiff marked Exs.A-1 to A-23 and the defendant got marked Exs.B-1 to B-36. 8. The trial Court on consideration of the entire evidence on record decreed the suit as stated supra. Hence, the present appeal by the defendant and Cross appeal by the plaintiff insofar it relates to payment of interest at 18% per annum on the sale consideration. 9. Sri Anantha Krishna, learned counsel for the appellant vehemently contended that the trial Court erred in rejecting the plea of the defendant that Ex.A-1 agreement of sale is not genuine one but it is a fabricated document brought into existence much subsequently due to certain disputes that have cropped up between the two families of the parties. He further contended that the trial Court failed to appreciate that the suit schedule property was in dispute and was not cleared from the land ceiling proceedings as on the date of Ex.A-1 agreement of sale and therefore the trial Court ought not to have decreed the suit. Learned counsel also contended that the trial Court erroneously rejected the plea of the defendant that his signatures have been obtained as a surety for the due performance of the contract of sale entered into by Smt.Lakshmi Tulasi, sister of the defendant in favour of the plaintiff. Learned counsel further contended that the trial Court failed to consider the mitigating factors and its discretion under Section 20 of the Specific Relief Act, 1963, in proper prospective and, therefore, the appeal deserves to be allowed. In support of his contentions, learned counsel relied on the decisions reported in KALASH PROPERTIES PVT LTD v. LILLY PUSHPAM5, B. RAJAMANI v. AZHAR SULTANA6, CHAND RANI v. KAMAL RANI7, AK LAKSHMIPATHY v. RAI SAHEB PANNALAL HIRALAL LAHOTI8, SHEIK ABDUAL SATTAR v. UNION OF INDIA9, INDERCHAND JAIN (D) through L.Rs. V. MOTILAL (D) through LRs.10, SYED QUADRI v. SYED MUJEEBUDIN11, KS VIDYANADAM v. VAIRAVAN12, NP THIRUGNANAM (D) LRs. vs R. JAGAN MOHAN RAO13, M/s. PR DEB AND ASSOCIATES vs. SUNANDA ROY14. 10. On the other hand, Sri Vedula Venkata Ramana, learned senior counsel appearing on behalf of the learned counsel for the plaintiff contended that the written statement of the defendant does not contain specific denial of the plaint averments except omnibus denial, particularly the averment in para 9 of the plaint relating to readiness and willingness to perform his part of the contract and therefore in view of Order 8, Rules 3, 4 and 5 of CPC, a presumption has to be drawn that the defendant has admitted the plaint averments. He further contended that the present case is a unique case wherein the defendant has taken inconsistent pleas in the written statement, for at one stage he took the plea that he never ever executed Ex.A-1 and at a later stage, he stated that he has signed on the stamped blank papers as surety in relation to the transaction of his sister, who executed agreement of sale in favour of the plaintiff. It is further contended that the burden is on the defendant to prove that the suit document Ex.A-1 is fabricated or his signature on blank stamp paper has been misused and the defendant failed to discharge the burden of proof. Learned counsel also stated that it is not the plea of the defendant that the sale consideration at Rs.2 Lacs per acre is unrealistic or non-prevalent in the market and thus the defendant cannot plead any hardship by reason of the grant of specific performance. Learned counsel further contended that non examination of the sister of the defendant should result in drawing an adverse interference against the case set-up by the defendant that he only given the stamped blank paper by putting his signature as security. It is stated that the trial Court considering all these aspects of the matter rightly granted the discretionary relief and that the appellate Court shall not interfere with the same unless the trial Court has exercised its discretion in a capricious manner. As regards the cross appeal, learned counsel stated that the rate of interest at 18% per annum granted by the trial Court is on the high side, which in fact was not contemplated in Ex.A-1. In support of his contentions he relied on the decisions in MADEMSETTY SATYANARAYANA vs. G. YELLOJI RAO4, MYSORE STATE ROAD TRANSPORT CORPORATION vs. MIRJA KHASIM ALI BAIG15, PRAKASH CHANDRA vs. ANGADLAL16, VIDHYADHAR vs. MANKIKRAO2. 11. Having heard the learned counsel for the contesting parties, the issues that fall for consideration in this appeal are:- 1. Whether the plaintiff is entitled to seek enforcement of specific performance of Ex.A-1 agreement of sale in view of the circumstances pleaded by the defendant ? 2. Whether the trial Court exercised the discretion under Section 20 of the Specific Relief Act properly in decreeing the suit ? ISSUES 1 & 2: 12. In the background of the evidence of the plaintiff examined as PW- 1 and the evidence of defendant examined as DW-1 and other documentary evidence, we proceed to examine the case on hand. According to the plaintiff, the defendant entered into an agreement of sale dated 13-2-1993 agreeing to sell the plaint schedule property to the plaintiff at the rate of Rs.2 lacs per acre and the transaction was reduced into writing in the form of an agreement of sale dated 13-2-1993 under Ex.A-1 and on the same day, the plaintiff stated to have paid a sum of Rs.15,000/- towards part of the sale consideration. As per the recitals of the said agreement of sale, the balance sale consideration is to be paid within one year from the date of the agreement. It is relevant to note the substance of the agreement of sale Ex.A-1 (in telugu) translated in English, reads thus:- “….Being absolute owner of the said land, I am agreeing to sell the said land to the plaintiff at the rate of Rs.2 lakhs per acre subject to measurement. The balance consideration amount shall be paid within one year and on receipt of the same, the defendant would execute sale deed or sale deeds in favour of the plaintiff. The plaintiff is permitted to divide the suit land into plots by obtaining layout from the competent authority and based on the layout plots, the defendant would execute the sale deeds subject to receipt of the sale consideration amount. The receipt of Rs.15,000/- as part consideration amount, is being acknowledged and the plaintiff would pay the balance amount within one year. The defendant has purchased the suit land vide registered sale deed of 1967....” 13. The plaintiff further stated that he issued a registered legal notice dated 23-12-1996 (Ex.A-2) calling upon the defendant to produce all his title deeds and other relevant papers of title and to execute the sale deed in favour of the plaintiff after receiving balance consideration. It is useful to extract the relevant portion of the said legal notice, which reads as under :- “…You offered to sell the suit property to my client at the rate of Rs.2 lakhs per acre and executed an agreement of sale on 13-2- 1993 in favour of my client agreeing to sell the schedule land of Ac.7-35 cents to my client. At the time of execution of the said agreement of sale, you received a sum of Rs.15,000/- from my client from out of the sale consideration as advance. At that time you represented that you would execute the sale deed in respect of the schedule property in favour of my client after receiving the balance consideration amount within one year from the date of agreement of sale i.e. 13-2-1993. You have also stated and assured that you would show your title deeds and all other documents to my client to satisfy my client about your title and right to sell the same. You agreed and consented to convey full and marketable title and you wanted one year time stating that the time is required for enabling you to get all your documents and show you clear title. After the execution of the said sale agreement my client has been demanding you all these days to produce all your documents and show your unimpeacheable title to the property and you have been representing and saying all these days that the documents are not yet received and that therefore you would be require time. You said that you yourself will intimate and inform my client after the documents are all received and that you would execute the sale deed. It is needless to say that my client made the entire balance sale consideration ready for being paid to you and he has always been ready and willing and in fact he is anxious to complete the transaction. It is only on account of your delay the transaction could not be completed till now. You are fully aware about my client’s solvency and that he made the money ready.….” 14. In reply to the said legal notice, the defendant has addressed a letter dated 17-1-1997 (Ex.A-4) requiring the plaintiff to furnish a photostat copy of the agreement of sale so that appropriate reply can be given to the legal notice of the plaintiff. Accordingly, the defendant was supplied with photo copy of the agreement of sale but the defendant failed to give any further reply to the legal notice Ex.A-2, the plaintiff filed the above suit. 15. The case of the defendant is that he did not execute the agreement of sale, however, his signatures were taken on blank stamp papers as security for performance of agreement of sale executed by his sister Lakshmi Tulasi in respect of the transaction of her land in favour of the plaintiff. It is his case that since his sister was selling her property to the plaintiff, at the request of his sister and her husband, he was made to sign on the stamped blank papers as security and nothing was written on the stamp papers at that time when he signed and that he never received any consideration from the plaintiff. 16. The settled law in matters seeking relief under the special enactment i.e. the Specific Relief Act is crystallized by the Supreme Court. In BAL KRISHNA vs. BHAGWAN DAS1, the Supreme Court observed that by virtue of Section 20 of the Act, the relief for specific performance lies in the discretion of the Court and the Court is not bound to grant such relief merely because it is lawful to do so and that the exercise of the discretion to order specific performance would require the Court to satisfy itself that the circumstances are such that it is equitable to grant decree for specific performance of the contract, and while exercising the discretion the Court would take into consideration the circumstances of the case, the conduct of the parties, and their respective interests under the contract. The jurisdiction of the Court to grant specific performance is discretionary and the role of the plaintiff is one of the most important factor to be taken into consideration. While exercising the discretionary jurisdiction in terms of Section 20 of the Act, the Court should meticulously consider all facts and circumstances of the case and that the process of the Court is not used as an instrument of oppression giving an unfair advantage to the plaintiff as opposed to the defendant in the suit. 17. The evidence of the plaintiff is that at the time of execution of Ex.A-1, the defendant assured that he would complete the transaction within one year by receiving the balance sale consideration and handover all documents connected with the suit schedule property to the plaintiff. It is his case that even though one year time was fixed under Ex.A-1, the plaintiff was always informing the defendant that he is ready and willing to complete the transaction, but the defendant was postponing the transaction on one pretext or the other. When all his oral pleas were in vain, he took recourse to legal proceedings by issuing Ex.A-2 legal notice. It has further come in his evidence that he is having ten acres of wet land in Kapavaram village and that he has got sufficient solvency. It is also a matter of fact that the plaintiff purchased lands of the sister of the defendant under Ex.B-2 and B-3. The scribe of Ex.A-1 was examined as PW-2 and he deposed about the writing of the said agreement of sale in presence of plaintiff and defendant. It has come in the evidence of PW-2 that after agreement of sale was written on Rs.100/- stamp paper, the same was read over to both the parties and they agreed, thereafter he asked the defendant to sign in the agreement and the defendant signed in the first two pages correctly, in the last page by mistake he has signed at the place intended for witness under the words “induku sakhulu”. Immediately he has noticed and told the defendant and asked him to sign at the correct place in 3rd page of the agreement and accordingly the defendant signed under the last line in the 3rd page, thereafter, PW-2 put his signature as scribe. Nothing is elicited in his cross examination to discredit his testimony. It is only on 3rd page of Ex.A-1, the signature of the defendant is found at the place meant for the executant and also for the attestor. If really the plaintiff wanted to fabricate an agreement of sale, he could have done so by making use of first two pages and getting it attested by persons favourable to him. But the plaintiff has filed the agreement of sale with the signature of the defendant at the place meant for attestors also. The explanation of the plaintiff is that it is a mistake on the part of the defendant who has signed there. Therefore, the plea of fabrication of agreement of sale by the plaintiff does not appear to be probable. The defendant in his examination stated that he signed the stamped blank papers as security to the transaction of his sister Smt. Lakshmi Tulsi, but he did not choose to seek for return of those stamped blank papers the moment the need ceased i.e. after his sister executed sale deeds in favour of the plaintiff under Ex.B-2 & B-3 in January, 1996 itself while the plaintiff issued notice in December, 1996. The onus to prove that the plaintiff had obtained signatures of the defendant on stamped blank papers on the pretext of security was entirely upon the defendant. 18. The best person to speak about the circumstances under which defendant signed on blank papers and handed over them to the plaintiff was Lakshmi Tulasi, sister of the defendant. DW-1 in his evidence stated that there are no disputes between him and his sister Lakshmi Tulasi, but she was not examined, who is a crucial witness as per the stand taken in the written statement and no other witness also examined by the defendant, in spite of the fact that the burden of proof is exclusively rests on him. In VIDHYADHAR vs. MANKIKRAO2 the Supreme Court observed that where a party does not appear in the witness box and thus avoids cross examination, an adverse inference is liable to be drawn in terms of Section 14 of the Evidence Act. De-hors that, in common parlance, for an agreement of sale, no security is required. If the agreement of sale of the sister of the defendant is defaulted, there is no necessity of any security to safeguard about such default since that will give rise to another suit for specific performance between the plaintiff and the sister of the defendant. 19. It appears, the terms of the agreement of sale between the plaintiff and the defendant is mainly intended to divide the land of the defendant into house plots, obtain an approved layout and sell house plots. The recitals show that the defendant agreed for division of the land into house plots and also apply to panchayat for approval of layout. It is well settled that specific performance of contract will ordinarily be granted even if there is