Pemmada Prabhakar & Ors vs Youngmen'S Vysya Association & Ors

3. Certain relevant facts are stated for the purpose of appreciating the rival legal contentions urged on behalf of the parties with a view to examine the correctness of the findings and reasons recorded by the High Court in the impugned judgment.

6. According to the plaintiffs, the defendant Nos. 1 and 2 executed the Agreement of Sale dated 03.05.1993 in favour of plaintiff No. 1 agreeing to sell the suit schedule property at the rate of Rs.575/- per sq. yard, the total consideration of which was to be fixed later after taking the actual measurement. Later on, the total land value was fixed at Rs.3,77,967/- for 657-1/3 sq. yards. The defendant Nos. 1 and 2 received advance amount of Rs.5000/- and Rs.10,000/- also. Under the Agreement the plaintiff No. 1 agreed to pay Rs.1,70,000/- to the defendants within 10 days from the day of vacating the tenants from the suit schedule property. Rs.50,000/- was to be paid on 30.11.1993 and that the balance amount of Rs.1,50,000/- was to be paid by 30.3.1994. The defendant Nos. 1 and 2 agreed that they would obtain the signatures of their 3rd brother-the defendant No. 3 by 9.05.1993. Defendant Nos. 7 and 8 are the tenants in the sheds situated in the suit schedule property. The defendant Nos.1 & 2 stated that their sisters were married long ago therefore, they had no interest in the suit schedule property, and that they would also get the sisters’ signatures on the agreement.

7. The 2nd Addl. Senior Civil Judge, Kakinada (the Trial Court) by his judgment dated 12.7.2006 dismissed O.S. No 267/95, in so far as the main relief for the specific performance of sale is concerned. The Trial Court has directed the defendants to refund Rs.5000/- with interest at the rate of 12% p.a. from 5.03.1993 till the date of realization and Rs.10,000/- with the interest rate at 12% p.a. from 6.08.1993 till the date of realization.

9. The Trial Court further held that the Agreement of Sale was not valid as the defendant Nos.3 to 6 and their mother did not give consent to sell the suit schedule property to the plaintiffs. Accordingly, the main relief for specific performance was rejected and the defendants were directed to refund the amount of advance sale consideration to the plaintiffs with interest at the rate of 12% p.a.

10. Being aggrieved by the judgment and decree dated 12.7.2006 of the Trial Court, the plaintiffs filed an appeal being A.S. No. 269 of 2006 before the Court of 3rd Additional District Judge, Kakinada, the First Appellate Court.

11. On 28.04.2010 the First Appellate Court allowed the appeal partly, directing the defendant Nos. 1, 2, 4 and 5 to execute the registered sale deed in favour of the plaintiff’s Association in respect of their 1/6th share each i.e. 4/6th share by receiving their respective shares of the balance sale consideration from the plaintiffs and modified the decree for specific performance of Agreement of Sale.

12. The First Appellate Court vide its order dated 28.4.2010 held that the transaction between the parties is real sale transaction and not mere money transaction and the sale agreement is valid and binding between the parties and the plaintiffs are entitled for the first main relief of specific performance and directed defendant Nos. 1, 2, 4 and 5 to execute sale deed in respect of their 4 shares of the suit schedule property after receiving proportionate sale price.

13. Being aggrieved by the judgment and decree dated 28.04.2010 of the First Appellate Court, the defendants preferred Second Appeal being S.A. No. 815 of 2011 before the High Court of Judicature of Andhra Pradesh at Hyderabad whereby the High Court vide order dated 4.11.2011 dismissed the Second Appeal which is impugned in this appeal.

28. With reference to the above said rival contentions, the following points would arise for our consideration :-

31. The second point is also required to be answered against the plaintiffs for the following reasons:-

50,000/- shall be paid on 30.11.1993., (iii) the remaining sale consideration of Rs.1,50,000/- shall be paid on or before 30.3.1994.”

33. Point No. 3 is also answered in favour of the defendants for the following reasons:-

35. Since, we have answered point Nos. 1 to 4 in favour of the defendants and against the plaintiffs, the appeal of the defendants must succeed. Accordingly, the impugned judgment and decree passed by the High Court in affirming the judgment and decree of the First Appellate Court, is set aside. The judgment and decree of the Trial Court is restored with modification that the defendants shall pay a sum of Rs.6,00,000/- to the plaintiffs as lump-sum compensation within 3 months from the date of receipt of copy of this order. The appeal is allowed in the above said terms. No costs.