APHC010585152010

IN THE HIGH COURT OF ANDHRA

PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

[3365]

FRIDAY, THE TWENTY FIRST DAY OF JUNE

TWO THOUSAND AND TWENTY FOUR

PRESENT

THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR

FIRST APPEAL NO: 754/2010

Between:

Sajja Subhash Chandra Bose ...APPELLANT

AND

Mr. Kota Suryanarayana and Others ...RESPONDENT(S)

Counsel for the Appellant:

1. V V N NARAYANA RAO

Counsel for the Respondent(S):

1. P NARASIMHA RAO

2. ACHANTA SRINIVAS

2

Dr. VRKS, J

A.S.No.754 of 2010

SUBMITTED FOR APPROVAL :

THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

1. Whether Reporters of Local Newspapers

may be allowed to see the Judgment? Yes/No

2. Whether the copy of Judgment may be

marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to Yes/No

see the fair copy of the Judgment?

______________________________

Dr. V.R.K.KRUPA SAGAR, J

3

Dr. VRKS, J

A.S.No.754 of 2010

* HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

+ FIRST APPEAL NO: 754/2010

%21.06.2024

# Between:

Sajja Subhash Chandra Bose ...APPELLANT

AND

Mr. Kota Suryanarayana and Others ...RESPONDENT(S)

! Counsel for the Appellant : Sri V.V.N.Narayana Rao

^ Counsel for Respondent(S) : Sri P.Narasimha Rao

< Gist:

> Head Note:

? Cases referred:

1. (2015) 1 SCC 597

2. (2022) 7 SCC 384

3. (2021) 11 SCC 200

4. AIR 1995 SC 491

5. (2009) 7 SCC 363

6. AIR 2011 SC 3234

7. 2002 (0) SCJOnline(AP) 2229

4

Dr. VRKS, J

A.S.No.754 of 2010

8. 1998 (0) SCJOnline(AP) 741

9. AIR 1999 SC 3571

10. 1999 (0) SCJOnline(SC) 62

11. 2002 (0) SCJOnline(AP) 2102

12. 1997 (1) SCJ 415

13. AIR 2008 SC 403

14. (2009) 2 SCC 582

15. (2023) 10 SCC 725

The Court made the following:

5

Dr. VRKS, J

A.S.No.754 of 2010

THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

APPEAL SUIT No.754 of 2010

JUDGMENT:

An agreement for sale is the cause of controversy.

Seeking specific performance of the agreement for sale, the

purchaser filed O.S.No.99 of 2007 before the learned VII

Additional District and Sessions Judge, (Fast Track Court) at

Vijayawada. After due contest, judgment and decree were

passed in favour of the plaintiff. What is to be noticed is that in

the said suit the plaintiff/purchaser primarily sought the relief of

specific performance of the agreement for sale and made an

alternative prayer for refund of advance sale consideration along

with interest. The learned trial Court by its judgment dated

02.09.2010 granted the alternative relief. Feeling prick for not

getting the primarily relief the plaintiff in the suit preferred this

appeal under Section 96 C.P.C. Respondent Nos.1 to 4 in this

appeal are the defendants in the suit. In this appeal the appellant

prays this Court to grant him the relief of specific performance of

agreement for sale.

2. Sri V.V.N.Narayana Rao, the learned counsel for

appellant/plaintiff and Sri P.Narasimha Rao, the learned counsel

for respondents argued their respective contentions.

6

Dr. VRKS, J

A.S.No.754 of 2010

3. Prefatory facts:

As could be seen from the record, the facts are that the

appellant and the respondents are strangers to each other. A plot

of land in an extent of 512.55 square yards with a terraced

building therein door No.31-4-4 in Municipal Ward No.27 in

Gadde Purnachandra Rao street of Maruthi Nagar, Machavaram

area of Vijayawada is a property owned by respondent No.1. His

ownership was by virtue of certain relinquishment deeds dated

27.02.1974 and 21.12.1988 executed by the relevant family

members. It is this property he offered for sale and the appellant

agreed to purchase. The family of respondent No.1 consists of

his wife/respondent No.4 and their two sons being respondent

Nos.2 and 3. It is undisputed that respondent Nos.2 to 4 have no

rights over the property of respondent No.1, but the intending

purchaser/appellant requested the first respondent to join the

execution by his family members also. Accordingly, all the

respondents together executed an unregistered non-possessory

agreement for sale dated 13.11.2000 which was marked as

Ex.A.1 by the trial Court. Under this agreement respondents

agreed to sell the above referred property to the appellant.

Rs.20,00,000/- was settled as the sale consideration. Under

three different cheques a total amount of Rs.2,50,000/- was paid

by the appellant and was received by the respondents. This

money was towards part of the sale consideration. The balance

sale consideration of Rs.17,50,000/- was to be paid by the

appellant on or before 12.11.2001. Thus, one year time was

prescribed for payment of this balance sale consideration. It is

7

Dr. VRKS, J

A.S.No.754 of 2010

agreed that on making such payment of balance sale

consideration the respondents would execute a regular registered

sale deed. In this agreement for sale, it is also mentioned that if

the purchaser delayed his payment, he had to pay 12% interest

per annum over the balance sale consideration. It is also

stipulated that if the vendors delayed their execution of sale deed,

they would pay 12% interest per annum over the advance sale

consideration they had received and the accrued interest could

be deducted by the purchaser from the balance sale

consideration and then pay the balance sale consideration to the

respondents. This agreement for sale refers to certain litigation in

the Courts. It is mentioned that O.S.No.139 of 1988 and

O.S.No.709 of 1991 were tried and disposed of by learned

Principal Senior Civil Judge, Vijayawada whereunder the

agreement referred property was found to be exclusively

belonging to respondent No.1. Here itself it is to be recorded that

this agreement for sale does not contain any other recital about

pendency of any appeals or other cases pertaining to those two

suits referred therein. It is also mentioned in Ex.A.1 that the

vendors agreed to deliver the original settlement deeds and the

relinquishment deeds and Court records at the time of execution

of regular registered sale deed. It is also agreed, by the time of

execution of regular registered sale deeds the vendors would get

the tenants vacate the subject matter property and they would

deliver vacant possession of the property to the purchaser. A sort

of a warranty was also mentioned in this agreement for sale to

the effect that vendors were telling the purchaser that the present

property was not alienated earlier to anyone and there were no

8

Dr. VRKS, J

A.S.No.754 of 2010

Court attachments or injunctions and there were no disputes

concerning joint rights of anyone before any Courts and there

were no mortgages or other earlier agreements nor this property

was subjected to any sort of liabilities.

4. Be it noted that the date of this agreement is 13.11.2000.

The bargain was to translate itself into a regular registered sale

deed on or before 12.11.2001. On 11.09.2002 which is about

nine months after the outer limit prescribed in Ex.A.1, the

appellant paid Rs.10,000/- and respondent No.1 received the

same and to this effect a written acknowledgment was made as

per Ex.A.6. Years thereafter on 15.06.2007 appellant got issued

a registered notice to respondents as per Ex.A.2 demanding them

to receive the balance sale consideration and execute the

registered sale deed. On 26.06.2007 the respondents got issued

a reply notice through their lawyer as per Ex.A.3.

5. In this reply notice respondents/defendants categorically

admitted about the bargain between parties and the settlement of

sale consideration at Rs.20,00,000/- and execution of subject

matter agreement for sale by the respondents in favour of the

appellant and admitted receipt of Rs.2,50,000/- towards advance

of part of sale consideration and admitted the remaining terms

mentioned in agreement for sale. They stated that the entire fault

in not obtaining registered sale deed rests with the

appellant/plaintiff and that the agreement for sale stood lapsed

and it is barred by limitation and they also denied the other

allegations made in Ex.A.2-notice.

9

Dr. VRKS, J

A.S.No.754 of 2010

6. It was in the above circumstances, the appellant/plaintiff

had to file O.S.No.99 of 2007. The essence of pleadings on both

sides contains the above referred facts. There are other facts

about which reference would be made at appropriate stage.

7. Learned trial Court settled the following issues for trial:

1. Whether the plaintiff is entitled for specific performance

of suit as prayed for?

2. To what relief?

8. It further mentioned that those issues have essentially

raised the following points for consideration:

1. Whether the time was essence of the contract?

2. Whether the plaintiff was ready and willing to perform

his part of contract?

3. Whether the suit is barred by limitation?

9. Both sides led their oral and documentary evidence.

Plaintiff testified as PW.1 and the scribe of Ex.A.1-agreement for

sale dated 13.11.2000 testified as PW.2 and Exs.A.1 to A.6 were

marked. Defendant No.1 testified as DW.1 and Exs.B.1 to B.5

were marked.

10. On considering the arguments advanced on both sides and

the evidence placed before it, the learned trial Court recorded that

existence and execution and the validity of agreement for sale as

per Ex.A.1 and the terms of agreement for sale and the advance

sale consideration being paid and received and the vendors

10

Dr. VRKS, J

A.S.No.754 of 2010

receiving Rs.10,000/- under Ex.A.6, after lapse of time prescribed

in Ex.A.1-agreement for sale and exchange of notices between

parties prior to the institution of the suit are all facts found

undisputed from pleadings and evidence. While considering the

aspects whether time is essence of the contract or not and

whether the purchaser-plaintiff was ready and willing to perform

his part of contract, the learned trial Court held that in Ex.A.1-

agreement for sale the earlier litigation concerning this property

between the vendors and others did not stand concluded by the

time of Ex.A.1-agreement for sale and there were appeals

preferred and pending and it was because of that reason though

the purchaser-plaintiff has been ready and willing to perform his

part of the contract, the vendors were not ready and willing to

perform their part of the contract and they were asking the plaintiff

to wait till disposal of the said appeals before the superior Courts.

In the light of those facts, learned trial Court observed that the

defendants by their conduct extended the period of time

stipulations. Having so held, it stated that since the time was

extended, the question of limitation did not arise as the suit was

laid well within three years from the date of Ex.A.3-reply notice of

defendants wherein they declined to execute registered sale

deed. What prompted the trial Court in not granting the primary

relief of specific performance and what convinced it to grant the

alternative relief of refund of advance sale consideration along

with interest was narrated at paragraph No.18 of the impugned

judgment which reads as below:

11

Dr. VRKS, J

A.S.No.754 of 2010

“It is well established principle that the relief of specific

performance is a discretionary relief and the court has to

exercise its discretion having regard to the facts and

circumstances of the case and other relevant factors. It is

evident from the Ex.Al that the agreement was entered on

13-11-2000 and only during 2007, the plaintiff has issued

notice. Due to lapse of time there is much hike in the prices

of immovable property. Therefore, though by the conduct of

the parties it cannot be said that the suit is barred by

limitation but I am not inclined to say that the plaintiff is

entitled for specific performance of the contract. Therefore,

having regard to the facts and circumstances of the case

and the conduct of the parties a conclusion can be arrived

that the plaintiff is not entitled for discretionary relief of

specific performance of contract but the plaintiff is entitled

for the alternative relief for the refund of the earnest money

and with interest at 12% p.a as agreed under Ex.A1.

Accordingly, this issue is answered.”

11. Thus, in the view of the learned trial Court though the lapse

of time has not resulted in applying the principles of limitation or

laches the fact remained that there was lapse of time and during

that period there was rise in the prices of immovable properties

and it is for that reason it declined to grant the specific

performance, but granted the alternative relief of refund of sale

consideration.

12. In this appeal the main challenge of the appellant is on that

reasoning of the learned trial Court.

12

Dr. VRKS, J

A.S.No.754 of 2010

13. Learned counsel for appellant argued that the learned trial

Court ought to have granted the primary relief of specific

performance. Mere rise in prices by itself cannot be a ground for

refusing specific performance and cited K.Prakash v.

B.R.Sampath Kumar

1

. At paragraph No.18 their Lordships held

that subsequent rise in the price will not be treated as a hardship

entailing refusal of the decree for specific performance. Rise in

price is a normal change of circumstances and, therefore, on that

ground a decree for specific performance cannot be reversed.

After referring to the earlier binding precedent, their Lordships at

paragraph No.19 laid down the wisdom to be followed stating that

the Court may have to take notice of the increase in the prices

and consider the relative hardship and find out whether in the

facts and circumstances of the case Court shall exercise

discretion and impose any reasonable condition including

payment of additional amount by one party to the other either by

granting specific performance or refusing specific performance. It

may also direct the purchaser to pay additional amount to the

seller. That ordinarily, the plaintiff is not to be denied the relief of

specific performance only on account of the phenomenal increase

of price during the pendency of litigation. While balancing the

equities, one of the considerations to be kept in view is as to who

is the defaulting party. It is also to be borne in mind whether a

party is trying to take undue advantage over the other as also the

hardship that may be caused to the defendant by directing

specific performance. There may be other circumstances on

1

(2015) 1 SCC 597

13

Dr. VRKS, J

A.S.No.754 of 2010

which parties may not have any control. The totality of the

circumstances is required to be seen.

14. Learned counsel for appellant submits that when once it is

found by a Court that the subject matter agreement for sale is a

valid and enforceable contract and the receipt of a part of

advance sale consideration is found to be true, there remains

nothing on part of the plaintiff-purchaser to prove and the Courts

ought to grant the primary relief and placed reliance on

P.Ramasubbamma v. V.Vijayalakshmi

2

. That the pendency of

litigation before superior Courts between the purchasers and

others with reference to the subject matter property is a matter of

fact on record and in such cases blame cannot be laid on the

shoulders of the plaintiff/appellant and there shall be no

consideration of escalation of prices and at any rate, escalation of

prices by itself shall not be a ground to deny specific performance

and in this regard the learned counsel places support on the ratio

laid down in A.R.Madana Gopal v. Ramnath Publications

Private Limited

3

.

15. As against this, the learned counsel for respondents raised

various contentions. It is contended that:

 an agreement for sale is a bilateral contract requiring

signatures of both parties on the document and that Ex.A.1

does not contain the signature of purchaser

plaintiff/appellant and therefore, it cannot be enforced.

2

(2022) 7 SCC 384

3

(2021) 11 SCC 200

14

Dr. VRKS, J

A.S.No.754 of 2010

 That Ex.A.1 is an unregistered agreement for sale dated

13.11.2000. In State of Andhra Pradesh by Act 4 of 1999

with effect from 01.04.1999 Section 17 of the Registration

Act, 1908 was amended and now as per Section 17(g) of

the Act an agreement for sale of immovable property of

value Rs.100/- and upwards is a compulsorily registerable

document. Since Ex.A.1 is unregistered, the suit for

specific performance ought to have been dismissed by the

trial Court. The document which is compulsorily

registerable and is not registered is inadmissible in

evidence. For this purpose, learned counsel cited Sardar

Singh v. Smt. Krishna Devi

4

and Suraj Lamp and

Industries (Private) Limited Through Director v. State of

Haryana

5

.

 Learned counsel for respondents further argued that the

plaintiff did not examine the attestors to Ex.A.1 and the

plaintiff incorrectly mentioned the name of the scribe and

these facts do indicate the failure of plaintiff in establishing

his case and in such circumstances, the suit ought to have

been dismissed and at any rate this appeal shall be

dismissed.

 Learned counsel contended that the pendency of appeals

is a matter of knowledge between parties and therefore, the

timelines stipulated in Ex.A.1-agreement for sale ought to

have been obliged by plaintiff and within the time as the

plaintiff failed to come forward for specific performance, the

4

AIR 1995 SC 491

15

Dr. VRKS, J

A.S.No.754 of 2010

agreement for sale stood lapsed and is barred by limitation

and time was the essence of the contract and in such a

case granting specific relief to the plaintiff who violated the

timelines is incorrect.

 The learned counsel further argued that rise in prices has

to be taken notice of judicially and the trial Court did it

rightly and this Court need not interfere and cited

Mrs. Saradamani Kandappan v. Mrs. S.Rajalakshmi

6

,

P.Purushotham Reddy v. M/s. Pratap Steels Ltd.

7

and

Sardar Amarjeet Singh v. Nandu Bai

8

.

 Learned counsel submits that though no cross appeal or

cross objections are filed, respondents/defendants are

entitled to canvass all and every point or their objection and

placed reliance on Shri Ravinder Kumar Sharma v. The

State of Assam

9

and Anil Kumar Gupta v. Municipal

Corporation of Delhi

10

.

 Learned counsel contends that in terms of Section 16(c) of

the Specific Relief Act, 1963, it is up to the plaintiff-

purchaser to plead and prove readiness and willingness

throughout and any violation shall result in refusal of the

relief and cited Palika Satyavathi v. Singireddy Ramana

Murthy

11

and K.S. Vidyanadam v. Vairavan

12

.

5

(2009) 7 SCC 363

6

AIR 2011 SC 3234

7

2002 (0) SCJOnline(AP) 2229

8

1998 (0) SCJOnline(AP) 741

9

AIR 1999 SC 3571

10

1999 (0) SCJOnline(SC) 62

11

2002 (0) SCJOnline(AP) 2102

12

1997 (1) SCJ 415

16

Dr. VRKS, J

A.S.No.754 of 2010

 Learned counsel submits that while applying the precedent

to a case at hand, Courts have to necessarily follow the

mandate that a decision is an authority for what it actually

decides. What is of the essence in a decision is its ratio

and not every observation found therein nor what logically

flows from the various observations made in the judgment.

For this the learned counsel cited Oriental Insurance Co.

Ltd. v. Smt. Raj Kumari

13

.

 Learned counsel for respondents contends that Ex.A.1 is

only an agreement and not a contract and it cannot be

enforced.

16. From the grounds urged in the appeal and from the

material that is placed on record and on considering the rival

arguments, the following points fall for consideration:

1. While a contract being bilateral whether under law

its enforceability requires signature of both parties

to the contract and whether an agreement for sale

signed by only vendor and not by vendees cannot

be enforced?

2. Whether in a suit for specific performance of an

agreement for sale an unregistered agreement for

sale can be considered or not?

3. Whether parties to the agreement for sale are aware

of existence of pending litigation and whether the

delay in enforcing the agreement for sale because of

13

AIR 2008 SC 403

17

Dr. VRKS, J

A.S.No.754 of 2010

pendency of litigation can be attributed to the

purchaser alone depriving him of the relief of

specific performance?

4. Whether the trial Court is incorrect in refusing to

grant specific performance on the ground of

escalation of prices?

5. To what relief?

Point No.1:

17. An agreement for sale is a contract as mentioned in

Section 54 of the Transfer of Property Act, 1872. An agreement

for sale comes into existence when the vendor agrees to sell and

the purchaser agrees to purchase for an agreed consideration on

agreed terms. It can be oral. It can be by exchange of

communications which may or may not be signed. It may be by a

single document signed by both parties. It can also be a

document in two parts, each party signing one copy and then

exchange the signed copy as a consequence of which the

purchaser has the copies signed by the vendor and the vendor

has a copy signed by the purchaser or it can be by the vendor

signing the document and delivering it to the purchaser who

accepts it. In the context of the above realities in life, their

Lordships of the Hon’ble Supreme Court of India in Aloka Bose

v. Parmatma Devi

14

(cited by the learned counsel for appellant)

held that in India, an agreement for sale signed by the vendor

alone and delivered to the purchaser, and accepted by the

14

(2009) 2 SCC 582

18

Dr. VRKS, J

A.S.No.754 of 2010

purchaser, has always been considered to be a valid contract. In

the event of breach by the vendor, it can be specifically enforced

by the purchaser. In the case at hand, the subject matter

property is owned by the respondents/defendants and Ex.A.1-

ageement for sale is signed by the respondents/defendants. It is

their former statement. They mentioned in it that they agreed to

sell and the purchaser-plaintiff agreed to purchase the property.

It is they who delivered this Ex.A.1 to the appellant/plaintiff. That

it was accepted by the appellant/plaintiff is crystal clear from the

fact that he paid an advance consideration of Rs.2,50,000/- which

the executants had endorsed in Ex.A.1 itself and admitted it in

Ex.A.3-reply notice and admitted it in their written statement and

admitted it in their evidence also. Thus, the facts are governed

by the ratio laid down by the Hon’ble Supreme Court of India.

Nothing contrary is brought to the notice of this Court by the

learned counsel for respondents. It is in these circumstances,

this Court holds that Ex.A.1-agreement for sale signed by

vendors alone brought out an enforceable contract between the

parties. Hence, the contention of the respondents is negatived.

Point No.1 is answered in favour of the appellant/plaintiff.

Point No.2:

18. Learned counsel for respondents is right to the extent of

saying that in State of Andhra Pradesh an agreement for sale of

immovable property is a compulsorily registerable document. The

precedent cited by the learned counsel for respondents is to the

effect that a document which is compulsorily registerable but is

19

Dr. VRKS, J

A.S.No.754 of 2010

not registered is inadmissible in evidence. Such proposition is

laid down based on what is contained in Section 49 of the

Registration Act, 1908. However, when a compulsorily

registerable agreement for sale is put forth for enforcing it by way

of specific performance, whether its non-registration is inhibited

by law or not is a point that is relevant for consideration here. In

the case at hand, Ex.A.1 is an agreement for sale and it is

unregistered. The prayer in the suit made by the

appellant/plaintiff is for specific performance of this unregistered

agreement for sale. Section 49 of the Registration Act, 1908 is

required to be noticed and it reads as mentioned below:

“49. Effect of non-registration of documents required to

be registered:-

No document required by section 17 [or by any provision of

the Transfer of Property Act, 1882 (4 of 1882),] [Added by

Act 21 of 1929, Section 10.] to be registered shall (a) affect

any immovable property comprised therein, or (b) confer any

power to adopt, or (c) be received as evidence of any

transaction affecting such property or conferring such

power, unless it has been registered: Provided that an

unregistered document affecting immovable property and

required by this Act, or the Transfer of Property Act, 1882 (4

of 1882), to be registered may be received as evidence of a

contract in a suit for specific performance under Chapter II

of the Specific Relief Act, 1877 or as evidence of any

collateral transaction not required to be effected by

registered instrument.”

20

Dr. VRKS, J

A.S.No.754 of 2010

19. Thus, the proviso provided in the section clearly states that

an unregistered agreement for sale can be received in evidence

in a suit for specific performance. In this case, Ex.A.1-agreement

for sale was rightly received in evidence by the learned trial

Court. A suit based on such agreement for sale is a validly

constituted suit. Learned counsel for appellant cited

R.Hemalatha v. Kashthuri

15

. That is also a suit for specific

performance of agreement for sale. That arose from Tamil Nadu

State. There was Tamil Nadu Amendment Act, 2012 making

agreement for sale a registerable document as it amended

Section 17 of the Registration Act. It was in such facts and

circumstances their Lordships held that the said amendment of

Tamil Nadu was only for Section 17 and not for Section 49 and

therefore, concluded that a suit based on unregistered agreement

for sale seeking specific performance is maintainable. In the

case at hand also, it is undisputed that in the State of Andhra

Pradesh Section 49 of the Registration Act, 1908 as enacted by

the Parliament has not undergone amendment for the State and

therefore the ratio in the above cited ruling governs the case at

hand also. Nothing contrary is brought to the notice of this Court

by the learned counsel for respondents.

20. However, the learned counsel for respondents submits that

Section 49 of the Registration Act, 1908 refers to the Specific

Relief Act, 1877 and since that Act was repealed and Specific

Relief Act, 1963 had come into force and since the same is not

incorporated in Section 49 of the Registration Act, the proviso

15

(2023) 10 SCC 725

21

Dr. VRKS, J

A.S.No.754 of 2010

contained therein cannot be applied. This argument does not

stand to scrutiny for the following reasons:

Section 3 of the Specific Relief Act, 1963 reads as below:

“3. Savings:-

Except as otherwise provided herein, nothing in this Act

shall be deemed—

(a) to deprive any person of any right to relief, other than

specific performance, which he may have under any contract;

or

(b) to affect the operation of the Indian Registration Act, 1908,

on documents.”

Section 8 of the General Clauses Act, 1897 reads as

below:

“8. Construction of the references to repealed enactments:-

(1) Where this Act, or any Central Act or Regulation

made after the commencement of this Act, repeals and re-

enacts with or without modification, any provision of a former

enactment, then references in any other enactment or in any

instrument to the provision so repealed shall, unless a different

intention appears, be construed as references to the provision

so re-enacted.

(2) Where before the fifteenth day of August, 1947, any

Act of Parliament of the United Kingdom repealed and re-

enacted with or without modification, any provision of a former

enactment, then references in any Central Act or in any

Regulation or instrument to the provision so repealed shall,

22

Dr. VRKS, J

A.S.No.754 of 2010

unless a different intention appears, be construed as

references to the provision so re-enacted.”

The operational effect of the above stated legislative

provisions is that the reference made to an earlier enactment

shall be construed as reference made to the substituting new

enactment. Thus, in terms of law, the Specific Relief Act, 1877

has to be read as the Specific Relief Act, 1963 while reading

Section 49 of the Registration Act, 1908. In that view of the

matter, the argument raised by the learned counsel for

respondents cannot be sustained.

21. It is in these circumstances, this Court records that Ex.A.1

though an unregistered agreement for sale, the same is valid and

is enforceable for the purpose of suit for specific performance.

Hence, the point is answered against the respondents and in

favour of the appellant.

Point Nos.3 to 5:

22. With reference to the right, title and ownership over the

subject matter immovable property owned by respondent No.1

the same was the subject matter of litigation between him and

others and certain suits in O.S.No.139 of 1988 and O.S.No.709 of

1991 were filed and the judgments in those two suits finally

concluded that the property exclusively belonged to respondent

No.1 herein. However, the said litigation did not stop there. The

written statement of respondent No.1 and the evidence of

respondent No.1 as DW.1 in his cross-examination disclosed the

following facts:

23

Dr. VRKS, J

A.S.No.754 of 2010

That the title of respondent No.1 decided by the judgments

of trial Courts are finally carried to the Hon’ble High Court and

Ex.A.5 is copy of the judgment dated 05.12.2006 of this Court

whereunder the appeal preferred against O.S.No.709 of 1991

became A.S.No.2207 of 2000 and the appeal preferred against

O.S.No.139 of 1988 became A.S.No.2208 of 2000 and those

appeals were disposed of confirming the title and ownership of

respondent No.1 herein. It was therefore under Ex.B.2 warrant

for delivery in E.P.No.56 of 2007 respondent No.1 herein

obtained the subject matter property on 03.09.2007. Even

according to the evidence of DW.1, mutation of entries in relevant

records was obtained thereafter under Ex.B.3. Thus, pendency

of litigation concerning the subject matter immovable property is a

matter of fact available from the record. Section 52 of the

Transfer of Property Act stipulates that where an immovable

property is subject to Court litigation, alienations and

encumbrances are prohibited without obtaining the permission of

the Court. Respondent No.1 being the owner of these properties

and his property being subjected to litigation it was for him to

obtain any permission from the Court to alienate the properties. It

is not his case that he had obtained any such permission of the

Court where the litigation was pending. It is in the light of these

facts and circumstances, the facts available in the present case

are to be considered. The evidence of PW.1 is that he was

asking his vendors to come forward and receive the balance sale

consideration and execute the registered sale deed and the

vendors were telling that they could not do it because of pending

litigation and asked him to wait. Since the fact was that there was

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A.S.No.754 of 2010

a pending litigation and since the law is that it inhibits the persons

from transacting with this property, any purchase would affect the

intending purchaser. When the intending purchaser expressed

his readiness and willingness to purchase this property soon after

the termination of the litigation it cannot be said that he was

asking for enforcement delayedly. The litigation over the

immovable property is not at the instance of the purchaser. Even

if the purchaser waits till the completion of litigation his conduct

should be considered as one which is in accordance with law.

Even if the contention of the respondents is accepted that the

appellant also knows about the pending litigation that by itself

does not allow either of the parties to circumvent Section 52 of

the Transfer of Property Act. Therefore, the acts of third parties in

litigating about this property shall be considered as a legal

obstacle inhibiting parties on both sides from materializing their

bargain into a registered sale deed. Therefore, non-observance

of timelines prescribed in Ex.A.1 was out of a legal cause for

which neither of the parties could be blamed. Even otherwise as

rightly held by the learned trial Court, the timelines were

abandoned by the respondents themselves by virtue of their

conduct in accepting Rs.10,000/- under Ex.A.6 towards some

more part of the balance sale consideration. That is a correct

finding. It has to be borne in mind that when a bilateral contract is

in place between the parties it cannot be countenanced that only

one party holds the burden to move a step forward and not the

other. During cross-examination of PW.1 these respondents

elicited that Ex.A.5-order of the Hon’ble High Court was handed

over by the respondents to the appellant. That makes it very

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A.S.No.754 of 2010

clear that the parties were in conversation with each other and

when the other matters with this Court were disposed of, very

fairly the respondents handed over a copy of it to the appellant.

When the litigation was pending before the Courts respondents

were willing to sell their property, but when they were asked

under Ex.A.2 to come forward and receive balance sale

consideration and execute the registered sale deed, they started

evading it. Therefore, the finding of the trial Court that the

appellant/plaintiff has always been ready and willing to perform

his part of the contract is a valid finding arrived at on facts which

on reappreciation of evidence, this Court endorses its

concurrence. Since the appellant has always been ready and

willing to perform his part of the contract, the respondents are

obliged to comply with the terms of the agreement and execute a

registered sale deed in favour of the appellant.

23. Rise in prices is a matter of fact. What was the actual price

of this property by the time the suit was laid was to be shown by

the respondents. They did not exhibit any document showing its

price. The contention of the learned counsel for respondents that

the property is worth now Rs.2.5 Crores is not borne out through

any evidence. Even if there is rise in prices it is obligated on part

of the Courts to see what equity and justice demands in such

circumstances. The precedent quoted by both sides do indicate

that the Courts have to consider that rise in prices is a normal

circumstance. Equity demands consideration of this rise in

prices. To do justice in such circumstances Courts have to

necessarily consider the conduct of the parties. If the purchaser

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A.S.No.754 of 2010

is at fault the consequence should be in one way. If the vendors

are at fault the consequence should be in the other way. In the

case at hand, till Ex.A.2-notice is served by appellant there was

no refusal to oblige by the terms of the contract on part of the

respondents. For the first time they expressed their refusal to

execute the sale deed and informed it under Ex.A.3-reply notice

and that forced the appellant to seek the relief in the Court. It is

already noticed that Ex.A.1 by its terms mentioned payment of

interest and it governs two eventualities. One on part of the

purchaser and the other on part of the vendors. It is in the light of

such circumstances, learned counsel for appellant suggested that

in the event of this Court granting specific performance, the

appellant is ready to pay the agreed interest in terms of Ex.A.1

over the balance sale consideration from 12.09.2002 which is the

next day of Ex.A.6-part payment. In the opinion of this Court that

fair proposal really satisfies the equity. The finding of the trial

Court that only because of the rise in prices it could not grant

specific performance is objectionable at law. Their Lordships of

the Hon’ble Supreme Court of India have categorically held that

mere rise in prices by itself shall not deprive the eligible purchaser

from securing the relief of specific performance. The case facts

eminently fall within the conspectus of the said ratio. Thus, to

that extent the trial Court finding is incorrect. The contentions

raised on behalf of the respondents are incorrect. Point Nos.3 to

5 are answered against the respondents and in favour of the

appellant.

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24. In the result, the impugned judgment of the learned trial

Court shall be modified and hence, this Appeal is allowed.

Appellant/plaintiff is entitled for specific performance of

agreement for sale. Therefore, O.S.No.99 of 2007 stands

decreed in the following terms:

Appellant/plaintiff shall deposit the balance sale

consideration with 12% interest per annum from 12.09.2002

before the trial Court on or before 20.09.2024 with due intimation

to the respondents. The respondents shall execute a registered

sale deed in favour of the appellant and receive the deposited

balance sale consideration on or before 20.10.2024. In the event

of failure on part of the respondents/defendants, the

appellant/plaintiff is entitled to have the registered sale deed

obtained through process of the learned trial Court. There shall

be no order as to costs.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

________________________

Dr. V.R.K.KRUPA SAGAR, J

Date: 21.06.2024

Note: LR copy to be marked

(B/o)

Ivd

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Dr. VRKS, J

A.S.No.754 of 2010

THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

APPEAL SUIT No.754 of 2010

Date: 21.06.2024

Ivd