BEEMANENI MAHA LAKSHMIversusGANGUMALLA APPA RAO (SINCE DEAD) BY LRS.

490            SUPREME COURT REPORTS
                         [2019] 7 S.C.R. 490                [2019] 7 S.C.R.


A                      BEEMANENI MAHA LAKSHMI
                                        v.
           GANGUMALLA APPA RAO (SINCE DEAD) BY LRS.
                      (Civil Appeal Nos. 4537-4538 of 2017)
B                                 MAY 09, 2019
              [L. NAGESWARA RAO AND M. R. SHAH, JJ.]
             Specific performance: Agreement to sell – Execution of, by
      appellant-vendor in favour of respondent-vendee for a sale
      consideration – Payment of part consideration by the respondent
C
      and remaining amount was to be paid within three months – Appellant
      agreed to execute the sale deed after measuring the suit land –
      However, respondent did not supply the original sale deed as also
      the order of the tribunal that appellant is holding an excess land –
      Suit by respondent for decree for specific performance of the
D     agreement to sell and in the alternative refund of advance of sale
      consideration with interest – Suit decreed by the trial court directing
      the appellant to execute a sale deed in favour of the respondent –
      Decree upheld by the High Court – On appeal, held: Courts below
      rightly held that it was the appellant who did not perform her part
      of the contract – Failure on the part of the respondent to demonstrate
E
      that he was having sufficient money with him to pay the balance
      sale consideration under the agreement by the date of his evidence
      not much of consequence – Even otherwise the respondent deposited
      the entire balance sale consideration as directed by the trial court
      – It cannot be said that the respondent was not ready and willing to
F     perform his part of the contract – It is to be considered that as and
      when respondent was called upon to make the deposit, he deposited
      the amount to show his bonafides or not – Furthermore, appellant
      cannot be permitted to raise plea on hardship – Thus, the decree
      for specific performance of the agreement to sell by the courts below,
      upheld.
G
            Dismissing the appeals, the Court
             HELD: 1.1 On facts, till the land was measured and the
      final amount was arrived at, there was no obligation on the part of
      the vendee-plaintiff to deposit/pay the balance sale consideration.
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                                       490
BEEMANENI MAHA LAKSHMI v. GANGUMALLA APPA RAO                             491
             (SINCE DEAD) BY LRS.

It is required to be considered along with the fact that all              A
throughout the vendee was insisting that the original sale deed
in favour of the vendor be given to the vendee and that the final
certificate issued by the tribunal be shown and given to the
vendee. It is an admitted position that copy of the sale deed was
not given to the vendee. However, it was the case on behalf of
                                                                          B
the defendant-vendor that the plaintiff was informed that the
original sale deed is produced in the court in the proceedings
initiated by the YS predecessor-in-title and therefore, the vendee
may get the copy from that court. Nothing is on record on which
date the vendor delivered to the vendee the land ceiling papers.
The land in question was subjected to the land ceiling proceedings.       C
The vendor-defendant purchased the suit property by sale deed
dated 6.10.1971 from YS the husband of the sister of the vendor.
From the evidence, it appears that YS was also claiming the
ownership over the land in question. Dispute was that YS executed
the sale deed in favour of the defendant-vendor with a view to
                                                                          D
see that the land is not declared as excess land under the Land
Ceiling Act. It has come on record that the tribunal held in favour
of the vendor and the transaction in her favour was found to be
bonafide. However, the said YS was also continued to claim the
ownership which was not accepted by the land Tribunal. That is
why, the vendee- plaintiff was insisting to deliver the land ceiling      E
papers. The conduct on the part of the plaintiff-vendee to insist
for the original sale deed in favour of the vendor and the delivery
of the land ceiling papers was natural. Any prudent person who
was to purchase the property would definitely insist for the title
papers, so as to be satisfied that the title is clear. Before the trial
                                                                          F
court, the defendant did not produce any final order/certificate
issued by the land tribunal, which came to be produced for the
first time before the High Court along with the application for
additional evidence under Order 41 Rule 27 CPC. The High
Court permitted the appellant to produce the proceedings of the
tribunal. The same came to be considered by the High Court.               G
That on appreciation of evidence and considering the document
Ex. B1-copy of a certified copy of the order of the Land Reforms
Tribunal, the High Court has specifically observed that it cannot
positively be said that the original of Ex. B1 was available with
the vendor by the date of Ex. A1. Therefore, the High Court
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492            SUPREME COURT REPORTS                      [2019] 7 S.C.R.


A     observed that the contention of the appellant that the respondent
      was shown the document relating to land ceiling clearance at the
      time of Ex. A1 cannot be believed or accepted. The said is the
      finding recorded on appreciation of evidence. Therefore, the trial
      court and the High Court specifically observed and held that the
      buyer insisted on the seller producing all the documents
B
      necessary for making out a complete chain of his/her title.
      [Para 10] [502-C-H; 503-A-E]
             1.2 On conjoint reading of Ex. A1 and the reply to the notice
      by the defendant dated 14.04.1987 and the cross-examination of
      the defendant-vendor, both the trial court and the High Court
C     rightly observed and held that it was the appellant-vendor that
      did not perform her part of the contract. Once, the finding is
      recorded that it was the appellant- vendor that did not perform
      her part of the contract, thereafter as rightly observed by the
      High Court, the failure on the part of the vendee to “demonstrate”
D     that he was having sufficient money with him to pay the balance
      sale consideration under Ex. A1 by the date of his evidence is
      not much of consequence and the contention of the appellant-
      vendor that the respondent- vendee was not ready and willing to
      perform his part of the contract cannot be believed or accepted.
      The said finding was confirmed by the High Court. Even
E     otherwise, it is required to be noted that the plaintiff deposited
      the entire balance sale consideration as directed by the trial court
      within the extended period of time. As it was submitted on behalf
      of the defendant before the trial court that the plaintiff does not
      have any capacity to pay the balance sale consideration, to test
F     his bonafides the trial court directed the plaintiff to deposit the
      balance sale consideration which the plaintiff did deposit. Merely
      because the said amount was deposited out of the fund/amount
      received by him by selling the property in the year 1993, by that
      itself cannot be presumed and/or inferred that at the time of
      execution of the agreement to sell and/or thereafter even at the
G     time of the notice, the plaintiff was not having sufficient fund to
      pay the balance sale consideration. An agreement to sell is dated
      30.12.1985 and the plaintiff was directed to deposit the amount
      in the year 1993. It is not expected from the plaintiff that he would
      continue to deposit the same with the bank all these years. What
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BEEMANENI MAHA LAKSHMI v. GANGUMALLA APPA RAO                           493
             (SINCE DEAD) BY LRS.

is required to be considered is as and when he is called upon to        A
make the deposit, he has deposited the amount to show his
bonafides or not? [Para 10] [503-F-H; 504-A-D]
      1.3 The plea raised on behalf of the defendant-vendor on
hardship to be caused if the decree of specific performance of
the contract is passed against the vendor cannot be permitted to        B
be raised now, when no such plea was raised in the written
statement. [Para 11] [504-E-G]
      A. Maria Angelena v. A.G. Balkis Bee AIR 2002 SC
      2385 – relied on.
      1.4 The judgment and decree passed by the trial court for         C
specific performance of the agreement to sell confirmed by the
High Court is upheld. [Para 13]
      K.S. Vidyanadam v. Vairavan (1997) 3 SCC 1 : [1997]
      1 SCR 993 ; P.R.Deb and Associates v. Sunanda Roy
      (1996) 4 SCC 423 : [1996] 3 SCR 163 ; Padmakumari                 D
      v. Dasayyan (2015) 8 SCC 695 : [2015] 5 SCR 56
      – distinguished.
                       Case Law Reference
[1997] 1 SCR 993               distinguished           Para 6.6
                                                                        E
[1996] 3 SCR 163               distinguished           Para 6.8
[2015] 5 SCR 56                distinguished           Para 6.9
AIR 2002 SC 2385               relied on               Para 11
      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4537-            F
4538 of 2017.
      From the Judgment and Order dated 06.08.2007 of the High
Court of Judicature of Andhra Pradesh at Hyderabad in Appeal Suit No.
2638 of 1993 & CMP No. 7692 of 2003.
     Basant R. Sr. Adv., G.V.R. Choudary, K. Shivraj Choudhuri, A.      G
Chandra Sekhar, Ms. Ayushi Goel, Harsh Singhal, Ms. Akshara Naidu,
Vishnu Pazhanganat, Hitesh Kumar Sharma, Advs. for the Appellant.
     Pramod Swarup, Sr. Adv., Mrs. Anjani Aiyagari, Ram Lal Roy,
K. Ram Kumar, Advs. for the Respondents.
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494             SUPREME COURT REPORTS                           [2019] 7 S.C.R.


A           The Judgment of the Court was delivered by
            M. R. SHAH, J.
             1. Feeling aggrieved and dissatisfied with the impugned judgment
      and order passed by the High Court of Judicature Andhra Pradesh at
      Hyderabad dated 6.8.2007 in Appeal Suit No. 2638 of 1993 and CMP
B     No. 7692 of 2003, by which the High Court has dismissed the said appeal
      preferred by the appellant herein – the original defendant and has
      confirmed the judgment and decree of specific performance passed by
      the learned trial Court, the original defendant has preferred the present
      appeals.
C           2. The facts leading to the present appeals in nutshell are as under:
              That the appellant herein – the original defendant purchased the
      suit schedule property admeasuring 17 acres 39 cents situated at village
      Billawaka, Thimmapuram Post, Kakinada Taluk, East Godavari District,
      Andhra Pradesh by a registered sale deed dated 6.10.1971. The land in
D     question was subjected to the provisions of the Andhra Pradesh Land
      Reforms (Ceiling on Agricultural Holdings) Act, 1973, which came into
      force in the year 1975. That vide order dated 20.11.1976, the Land
      Reforms Tribunal held that the appellant is holding an excess land to the
      extent of 0.0013 cents. It appears that a revision application was pending/
E     proceedings before the High Court at the instance of the predecessor in
      title of the suit property. That the appellant herein executed an agreement
      to sell in favour of the respondent herein – the original plaintiff vide
      agreement to sell dated 30.12.1985 and agreed to sell the said property
      (suit property) for a sale consideration of Rs.2,45,000/-. The respondent
      herein – the original plaintiff – purchaser paid the part sale consideration
F     of Rs.55,000/-. The remaining balance amount was required to be paid
      within three months. According to the plaintiff, it was also agreed that
      the appellant has to execute the sale deed after measuring the suit land
      for arriving at the actual sale consideration payable. According to the
      plaintiff, time and again, he demanded the original sale deed in favour of
G     the appellant dated 6.10.1971 as well as the final order passed by the
      Tribunal/final certificate issued by the Agricultural Land Tribunal and
      also requested the vendor to measure the land and execute the sale
      deed. However, as the vendor – the appellant did not execute the sale
      deed, though according to the plaintiff he was ready and willing to pay
      the balance sale consideration and perform his part of contract, nothing
H     further was done and therefore the purchaser – the plaintiff served a
BEEMANENI MAHA LAKSHMI v. GANGUMALLA APPA RAO                                  495
       (SINCE DEAD) BY LRS. [M. R. SHAH, J.]

legal notice upon the appellant dated 6.4.1987. The said notice was            A
replied by the defendant vide reply dated 14.4.1987. That thereafter the
respondent herein – the original plaintiff instituted Original Suit No.16/
1993 in the Court of the Subordinate Judge, Pithapuram praying for a
decree for specific performance of the agreement to sell dated 30.12.1985
by directing the defendant to execute the sale deed in favour of the
                                                                               B
plaintiff by producing the original title deed and non-surplus order in the
land ceiling case of the defendant and her vendor. In the alternative, it
was prayed to pass a decree for a sum of Rs.75,169.75 with interest
from 30.12.1985 on Rs.55,000/-.
        2.1 The suit was resisted by the defendant by filing a written
statement. It was the case on behalf of the defendant that the plaintiff       C
was not ready and willing to perform his part of contract as he was not
having balance of sale consideration and therefore, he could not pay the
amount and obtain the sale deed. It was also the case on behalf of the
defendant that she purchased the land in question from one Y. Somayya
Choudary and the land thereafter held in favour of the defendant and           D
the Land Tribunal held that the said transaction between the defendant
and the Y. Somayya Choudary was a bona fide transaction. According
to the defendant, the same had attained finality. It was the case on
behalf of the defendant that the plaintiff was aware of the aforesaid
transaction and even the order passed by the Land Tribunal. It was also
the case on behalf of the defendant that before entering into the agreement    E
itself, in the beginning, the defendant informed the plaintiff that the sale
deed is filed in the land ceiling proceedings of Y. Somayya Choudary
and after termination of the proceedings the document will be obtained
and delivered to the plaintiff. It was also the case on behalf of the
defendant that the copies of the land ceiling orders were handed over to       F
the plaintiff and having satisfied the plaintiff entered into the agreement
to sell.
      2.2 On the basis of the pleadings of the parties, the learned Trial
Court framed the following issues:
      (1) Whether the plaintiff is ready and willing to perform his part       G
      of the contract and is entitled to seek for specific performance of
      the suit agreement of sale?
      (2) Whether the plaintiff is entitled for the alternative relief of
      refund of advance of sale consideration with interest as claimed?
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496             SUPREME COURT REPORTS                            [2019] 7 S.C.R.


A            (3) To what relief?
             2.3 The plaintiff examined himself as PW1 and marked Exhibits
      A1 to A4. The defendant examined 5 witnesses including herself as
      DW1 and marked Exhibit X1 through DW3. It appears that during the
      course of trial, as it was the case on behalf of the defendant that the
B     plaintiff had no money to pay the balance sale consideration and therefore
      the learned trial Court directed the plaintiff to deposit the balance of the
      sale consideration into the Court to verify his bona fides. That the plaintiff
      deposited the balance sale consideration within the extended time granted
      to him on a petition.
C            3. That thereafter on appreciation of evidence and considering
      the entire material on record including the deposition of DW1 and even
      reply to the notice by DW1, the learned trial Court decreed the suit by
      directing the defendant to execute a sale deed in favour of the plaintiff.
      While decreeing the suit, the learned trial Court specifically observed
      and held that it was the defendant who committed the breach of contract.
D     On appreciation of evidence, the learned trial Court also found that the
      plaintiff was always ready and willing to perform his part of the contract
      and it was the defendant who committed the breach of contract and
      therefore the plaintiff is entitled for the relief of specific performance.
             4. Feeling aggrieved and dissatisfied with the judgment and decree
E     passed by the learned trial Court, the defendant preferred appeal before
      the High Court. The defendant – the appellant herein also filed an
      application for additional evidence under Order 41 Rule 27 of the CPC.
      That the High Court allowed the said application for additional evidence
      partly. That thereafter on appreciation/re-appreciation of the entire
F     evidence on record, by the impugned judgment and order, the High Court
      has dismissed the appeal preferred by the appellant herein – the original
      defendant and has confirmed the judgment and decree of specific
      performance of the agreement to sell dated 30.12.1985 passed by the
      learned trial Court.

G            5. Challenging the impugned judgment and order passed by the
      High Court in dismissing the appeal and confirming the judgment and
      decree of specific performance passed by the learned trial Court and in
      partly rejecting the application for additional evidence under Order 41
      Rule 27 of the CPC, the original defendant – the appellant before the
      High Court has preferred the present appeals.
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BEEMANENI MAHA LAKSHMI v. GANGUMALLA APPA RAO                                  497
       (SINCE DEAD) BY LRS. [M. R. SHAH, J.]

       6. Shri Basant R, learned Senior Advocate has appeared on behalf        A
of the appellant – the original defendant and Shri Pramod Swarup, learned
Senior Advocate has appeared on behalf of the respondent – the original
plaintiff (since dead and now represented by his legal heirs).
      6.1 Shri Basant R, learned Senior Advocate appearing on behalf
of the appellant has vehemently submitted that in the facts and                B
circumstances of the case, both the courts below have materially erred
in decreeing the suit and passing the decree of specific performance of
the agreement to sell dated 30.12.1985.
       6.2 It is further submitted by the learned Senior Advocate appearing
on behalf of the appellant that both the courts below have materially          C
erred in holding that it was the defendant who committed the breach of
the terms of the contract/agreement to sell.
        6.3 It is further submitted by the learned Senior Advocate appearing
on behalf of the appellant that it was the case on behalf of the defendant
from the very beginning that the plaintiff had no capacity to pay the          D
balance sale consideration. It is submitted that even the plaintiff could
not deposit the balance sale consideration at the first instance as directed
by the learned trial Court by which the learned trial Court directed the
plaintiff to deposit the balance sale consideration to show his bonafides.
It is submitted that in fact the plaintiff could deposit the balance sale
consideration within the extended period of time out of the amount received    E
from the property sold by him in the year 1993. It is submitted that
therefore when the plaintiff was not having sufficient fund to pay the
balance sale consideration, both the courts below have materially erred
in passing the decree of specific performance of the agreement to sell
dated 30.12.1985. It is submitted that as such the plaintiff in the cross-     F
examination has specifically admitted that he paid the balance sale
consideration as directed by the learned trial Court from the amount
received by him on sale of the property in the year 1993.
       6.4 It is further submitted by the learned Senior Advocate appearing
on behalf of the appellant that in the agreement to sell there was no          G
condition that the sale deed to be executed only after the property is
measured. It is vehemently submitted by the learned Senior Advocate
appearing on behalf of the appellant that both the courts below have
materially erred in giving much importance to the admission of defendant
no.1 who is an illiterate widow that before execution of the sale deed
the land was to be measured.                                                   H
498             SUPREME COURT REPORTS                              [2019] 7 S.C.R.


A             6.5 It is further submitted by the learned Senior Advocate appearing
      on behalf of the appellant that both the courts below have materially
      erred in not appreciating the fact that prior to the entering into the
      agreement of sale, the plaintiff was aware of the defendant having
      purchased the property from Y. Somayya Choudary and also was aware
      of the land ceiling proceedings. It is submitted that even before entering
B
      into the agreement itself in the beginning the defendant informed the
      plaintiff that the sale deed is filed in the land ceiling proceedings of Y.
      Somayya Choudary and after termination of the proceedings the
      document will be obtained and delivered to the plaintiff. It is submitted
      that in the reply to the notice by the defendant, the plaintiff was specifically
C     informed/told that the sale deed is in the court file of the land ceiling
      proceedings of Y. Somayya Choudary and the plaintiff can obtain a copy
      of the same from the concerned court. It is submitted that therefore
      both the courts below have materially erred in holding that it was the
      defendant who committed the breach of the terms of the contract/
      agreement to sell. It is further submitted that both the courts below have
D
      materially erred in holding that the plaintiff was always ready and willing
      to perform his part of the contract/agreement to sell.
             6.6 It is further submitted by the learned Senior Advocate appearing
      on behalf of the appellant that even otherwise decree for specific
      performance of a contract is a discretionary relief and in the facts and
E     circumstances of the case, more particularly when the plaintiff did not
      come with clean hands, as though was not in possession but stated that
      he is in possession, both the courts below ought not to have granted the
      discretionary relief and ought not to have passed a decree for specific
      performance of the agreement/agreement to sell. In support of his above
F     submission, Shri Basant R, learned Senior Advocate has heavily relied
      upon the decision of this Court in the case of K.S. Vidyanadam v.
      Vairavan, reported in (1997) 3 SCC 1.
             6.7 It is further submitted by the learned Senior Advocate appearing
      on behalf of the appellant that even the High Court has materially erred
G     in dismissing the application for additional evidence under Order 41 Rule
      27 of the CPC by not permitting the appellant to produce the xerox
      copies of the certified copies of the agreement of sale dated 30.08.1993
      executed by the plaintiff in favour of one Vegisina Venkata Satya Ananda
      Gajapathi Raju and the deposition of the plaintiff in O.S. No. 236 of 1994
      on the file of the Principal Senior Civil Judge, Kakinada. It is submitted
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BEEMANENI MAHA LAKSHMI v. GANGUMALLA APPA RAO                                   499
       (SINCE DEAD) BY LRS. [M. R. SHAH, J.]

that if both the aforesaid documents would have been permitted to               A
produce on record as an additional evidence, it can be seen that the
plaintiff was not having sufficient fund to pay the balance sale
consideration.
       6.8 Shri Basant R, learned Senior Advocate appearing on behalf
of the appellant has submitted that even otherwise in the facts and             B
circumstances of the case, the courts below have materially erred in
passing the decree for specific performance of the contract for sale of
immovable property which was after number of years and would cause
undue hardship to the defendant. It is submitted that in the present case
the plaintiff waited till the period of limitation to come to an end and even
did not file the suit for specific performance immediately. It is submitted     C
that therefore the grant of decree for specific performance in the
circumstances would amount to an instrument of oppression giving unfair
advantage to the vendee. In support of his above submission, learned
Senior Advocate has heavily relied upon the decision of this Court in the
case of P.R.Deb and Associates v. Sunanda Roy, reported in (1996)               D
4 SCC 423.
        6.9 It is further submitted by the learned Senior Advocate appearing
on behalf of the appellant that in the present case in the agreement to
sell, it was specifically mentioned that the balance sale consideration
was to be paid within a period of three months from the date of execution       E
of the agreement to sell. It is submitted that admittedly the plaintiff did
not pay the balance sale consideration within three months from the
date of execution of the agreement to sell and therefore the said failure
disentitled the plaintiff to obtain decree of specific performance. In
support of his above submission, learned Senior Advocate has heavily
relied upon the decision of this Court in the case of Padmakumari v.            F
Dasayyan, reported in (2015) 8 SCC 695.
      6.10. Making the above submissions and relying upon the above
decisions, it is prayed to allow the present appeals.
      7. The present appeals are vehemently opposed by Shri Pramod              G
Swarup, learned Senior Advocate appearing on behalf of the
respondent – the original plaintiff.
      7.1 It is submitted by the learned Senior Advocate appearing on
behalf of the respondent that in the present case there are concurrent
findings recorded by both the courts below that there was a failure on
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500             SUPREME COURT REPORTS                            [2019] 7 S.C.R.


A     the part of the defendant – vendor to perform her part of the terms of
      the contract and that the plaintiff was always ready and willing to pay
      the balance sale consideration. It is submitted that the aforesaid findings
      of fact recorded by the learned trial Court as well as the High Court are
      on appreciation of evidence and therefore the same may not be interfered
      with by this Court. It is submitted that in view of the aforesaid findings
B
      of fact recorded by the trial Court, confirmed by the High Court, it cannot
      be said that the learned trial Court and the High Court committed an
      error in passing a decree for specific performance.
              7.2 It is vehemently submitted by the learned Senior Advocate
      appearing on behalf of the respondent that in fact the defendant in reply
C     to the notice – A3 as well as in her deposition has specifically admitted
      that the land was to be measured and only thereafter the sale deed was
      to be executed. It is submitted that as admitted the land was not measured
      and therefore there was no occasion on the part of the plaintiff to pay
      the balance sale consideration at the relevant time. It is submitted that
D     even the defendant – vendor did not give the sale deed in her favour
      executed by Y. Somayya Choudary. It is submitted that Y. Somayya
      Choudary was the husband of the sister of the defendant and only with
      a view to save the property from the Agricultural Land Ceiling Act, he
      executed the sale deed in favour of the defendant. It is submitted that
      the plaintiff insisted for the final certificate issued by the Land Tribunal
E     so as to see that there is a clear title in favour of the defendant – vendor.
      It is submitted that there was a necessity to have the land measured. It
      is submitted that therefore when the vendor neither gave the sale deed
      in her favour nor gave the final certificate/order issued by the Land
      Tribunal nor even got the land measured, there was a cloud on the title
F     which was required to be removed by the defendant as vendor, before
      the plaintiff makes the payment of balance sale consideration. It is
      submitted that as the defendant – vendor failed to clear the cloud by not
      giving the copy of the sale deed in her favour; by not producing the final
      certificate/order issued by the Land Tribunal and by not measuring the
      land till then there was no question of any payment of balance sale
G     consideration by the plaintiff. It is submitted that from the very beginning,
      it was the case on behalf of the plaintiff that the plaintiff was always
      ready and willing to pay the balance sale consideration, subject to the
      defendant’s fulfilling her part of the contract.
            7.3 It is further submitted by the learned Senior Advocate appearing
H     on behalf of the respondent that unless and until the defendant – vendor
BEEMANENI MAHA LAKSHMI v. GANGUMALLA APPA RAO                                  501
       (SINCE DEAD) BY LRS. [M. R. SHAH, J.]

complied with her terms and conditions of the agreement by fulfilling her      A
part of the contract, the plaintiff was not required to deposit any amount
either in the bank or with the Court. It is submitted that as soon as the
learned trial Court directed to deposit, the plaintiff deposited the balance
sale consideration to show his bonafides. It is submitted that merely
because in the year 1993 when the amount was deposited the plaintiff
                                                                               B
might have deposited the said amount out of the fund received by selling
the property in the year 1993 by that itself cannot be said that prior
thereto the plaintiff was unable to pay the balance sale consideration.
       7.4 Making the above submissions and relying upon the decision
of this Court in the case of Narinderjit Singh v. North Star Estate
Promoters Limited, reported in AIR 2012 SC 2035, it is prayed to               C
dismiss the present appeals.
       8. We have heard the learned Senior Counsel for the respective
parties at length.
       9. We have perused and considered in depth the impugned                 D
judgment and order passed by the High Court as well as the judgment
and decree passed by the learned trial Court. At the outset, it is required
to be noted that as such there are concurrent findings of fact by both,
the learned trial Court as well as the High Court that it was the appellant
– vendor who did not perform her part of the contract. The learned trial
Court also observed and held that as the respondent – vendee deposited         E
into Court the amount payable by him as per Ex. A1, which was as per
the order of the trial Court, and therefore his failure to “demonstrate”
that he was having sufficient money with him to pay the balance sale
consideration under Ex. A1 by the date of his evidence is not much of
consequence and the contention of the appellant – vendor that the              F
respondent – vendee was not ready and willing to perform his part of
the contract cannot be believed or accepted. The aforesaid finding has
been confirmed by the High Court.
       10. It is true that in Ex.A1, it was not specifically mentioned that
vendor has to first get the land measured and only thereafter the vendee       G
has to pay the balance sale consideration. It is also true that as per Ex.
A1 – agreement to sell the vendee was required to deposit the balance
sale consideration within a period of three months from the date of
execution of the agreement. However, at the same time, it was the
specific case on behalf of the plaintiff – vendee that it was also agreed
that the vendor has to execute the sale deed after measuring the suit          H
502             SUPREME COURT REPORTS                            [2019] 7 S.C.R.


A     land. The aforesaid is as such admitted by the vendor – the defendant,
      not only in reply to the notice dated 14.04.1987 but as well in her
      deposition. In the reply to the notice on 14.04.1987, the defendant has
      specifically admitted that the sale deed should be executed after
      measuring he land and after arriving at the consideration for the land
      that was arrived at on measurement. Even in the cross-examination,
B
      the defendant – vendor who has been examined as DW1 has specifically
      admitted that at the time of execution of the agreement, it was settled to
      get the land measured and to arrive at the consideration and to deliver
      the original sale deed. It has also come on record that no measurement
      was carried out at any point of time, more particularly after the execution
C     of the agreement to sell. Thus, till the land was measured and the final
      amount was arrived at, there was no obligation on the part of the vendee
      – the plaintiff to deposit/pay the balance sale consideration. It is required
      to be considered along with the fact that all throughout the vendee was
      insisting that the original sale deed in favour of the vendor be given to
      the vendee and that the final certificate issued by the Land Tribunal be
D
      shown and given to the vendee. It is an admitted position that copy of
      the sale deed was not given to the vendee. However, it was the case on
      behalf of the defendant – vendor that the plaintiff was informed that the
      original sale deed is produced in the court in the proceedings initiated by
      Y.Somayya Choudary – predecessor in title and therefore the vendee
E     may get the copy from that court. Nothing is on record on which date
      the vendor delivered to the vendee the land ceiling papers. At this stage,
      it is required to be noted that the land in question was subjected to the
      land ceiling proceedings. It has come on record that the vendor –
      defendant purchased the suit property by sale deed dated 6.10.1971
      from one Y. Somayya Choudary – the husband of the sister of the vendor.
F
      From the evidence, it appears that Y. Somayya Choudary was also
      claiming the ownership over the land in question. Dispute was that Y.
      Somayya Choudary executed the sale deed in favour of the defendant –
      vendor with a view to see that the land is not declared as excess land
      under the Land Ceiling Act. It has come on record that the Land Tribunal
G     held in favour of the vendor and the transaction in her favour was found
      to be bonafide. However, the said Y. Somayya Choudary was also
      continued to claim the ownership which was not accepted by the land
      Tribunal. That is why, the vendee – the plaintiff was insisting to deliver
      the land ceiling papers. The conduct on the part of the plaintiff – vendee
      to insist for the original sale deed in favour of the vendor and the delivery
H
BEEMANENI MAHA LAKSHMI v. GANGUMALLA APPA RAO                                    503
       (SINCE DEAD) BY LRS. [M. R. SHAH, J.]

of the land ceiling papers was natural. Any prudent person who was to            A
purchase the property would definitely insist for the title papers, so as to
be satisfied that the title is clear. Before the learned trial Court, the
defendant did not produce any final order/certificate issued by the Land
Tribunal, which came to be produced for the first time before the High
Court along with the application for additional evidence under Order 41
                                                                                 B
Rule 27 of the CPC. The High Court permitted the appellant to produce
the proceedings of the Land Reforms Tribunal dated 20.11.1976. The
same came to be considered by the High Court and observed that Ex.
B1 is a xerox copy of a certified copy of the order dated 20.11.1976 of
the Land Reforms Tribunal. The High Court has also observed that the
relevant portion of the certified copy (Ex. B1) which contain the details        C
relating to the date when the copy application was filed; when the stamps
were called for and when the copy was made ready are not available in
Ex. B1. The High Court has also observed that if they are available, the
date on which the copy application was made would have known. That
on appreciation of evidence and considering the document Ex. B1, the
                                                                                 D
High Court has specifically observed that it cannot positively be said
that the original of Ex. B1 was available with the vendor by the date of
Ex. A1. Therefore, the High Court observed that the contention of the
appellant that the respondent was shown the document relating to land
ceiling clearance at the time of Ex. A1 cannot be believed or accepted.
The aforesaid is the finding recorded on appreciation of evidence.               E
Therefore, the learned trial Court and the High Court have specifically
observed and held that the buyer insisted on the seller producing all the
documents necessary for making out a complete chain of his/her title.
        Therefore, on conjoint reading of Ex. A1 and the reply to the
notice by the defendant dated 14.04.1987 and the cross-examination of            F
the defendant – vendor, both the learned trial Court and the High Court
have rightly observed and held that it was the appellant – vendor that did
not perform her part of the contract. Once, the finding is recorded that
it was the appellant – vendor that did not perform her part of the contract,
thereafter as rightly observed by the High Court, the failure on the part
of the vendee to “demonstrate” that he was having sufficient money               G
with him to pay the balance sale consideration under Ex. A1 by the date
of his evidence is not much of consequence. Even otherwise, it is required
to be noted that the plaintiff deposited the entire balance sale consideration
as directed by the learned trial Court within the extended period of time.
It is required to be noted that as it was submitted on behalf of the             H
504             SUPREME COURT REPORTS                            [2019] 7 S.C.R.


A     defendant before the learned trial Court that the plaintiff does not have
      any capacity to pay the balance sale consideration, to test his bonafides
      the learned trial Court directed the plaintiff to deposit the balance sale
      consideration which the plaintiff did deposit. Merely because the said
      amount was deposited out of the fund/amount received by him by selling
      the property in the year 1993, by that itself cannot be presumed and/or
B
      inferred that at the time of execution of the agreement to sell and/or
      thereafter even at the time of the notice, the plaintiff was not having
      sufficient fund to pay the balance sale consideration. It is required to be
      noted that an agreement to sell is dated 30.12.1985 and the plaintiff was
      directed to deposit the amount in the year 1993. It is not expected from
C     the plaintiff that he would continue to deposit the same with the bank all
      these years. What is required to be considered is as and when he is
      called upon to make the deposit, he has deposited the amount to show
      his bonafides or not? Therefore, as such, both the learned trial Court as
      well as the High Court have rightly passed a decree for specific
      performance.
D
             11. Now so far as the submission on behalf of the appellant that if
      the decree for specific performance of the contract is passed after number
      of years, it would cause undue hardship to the defendant – vendor and
      the reliance placed upon the decision of this Court in the case of P.R.Deb
      (supra) is concerned, it is required to be noted that in the written statement
E     the defendant has not pleaded any hardship to be caused if the decree of
      specific performance of the contract is passed against the defendant –
      vendor. At this stage, the decision of this Court in the case of A. Maria
      Angelena v. A.G. Balkis Bee, reported in AIR 2002 SC 2385 is required
      to be referred to. In the aforesaid case, the vendor sought to raise the
F     plea of hardship for the first time before this Court and this Court did not
      permit the vendor to raise such a plea of hardship by observing that as
      no plea as to hardship if relief for specific performance is granted was
      raised by the defendant – vendor in written statement nor any issue was
      framed that the plaintiff – purchaser could be compensated in terms of
      the money in lieu of decree for specific performance, such plea cannot
G     be entertained for the first time in appeal by way of SLP, more so, when
      there are concurrent findings that the plaintiff was ready and willing to
      perform his part of the contract has been recorded by the lower courts.
      Therefore, the plea raised on behalf of the vendor on hardship cannot be
      permitted to be raised now, more particularly when no such plea was
H     raised/taken in the written statement.
BEEMANENI MAHA LAKSHMI v. GANGUMALLA APPA RAO                                  505
       (SINCE DEAD) BY LRS. [M. R. SHAH, J.]

       12. Now so far as the reliance placed upon the decisions of this        A
Court by the learned Senior Advocate appearing on behalf of the appellant,
referred to hereinabove, are concerned, none of the decisions shall be
applicable to the facts of the case on hand and more particularly the
findings recorded by the learned trial Court, confirmed by the High Court,
which we also confirm.
                                                                               B
       13. In view of the above and for the reasons stated above, the
present appeals fail and deserve to be dismissed and are accordingly
dismissed. We confirm the judgment and decree passed by the learned
trial Court for specific performance of the agreement to sell dated
30.12.1985, confirmed by the High Court. However, in the facts and
circumstances of the case, there shall be no order as to costs.                C


Nidhi Jain                                                Appeals dismissed.



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