The Director of Income Tax [Exempetions] vs. Share India

[ 3208 ] IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD MONDAY, THE TWENTY THIRD DAY OF DECEMBER TWO THOUSAND AND TWENTY FOUR PRESENT THE HONOURABLE SMT JUSTICE P.SREE SUDHA APPEAL SUIT NO: 258 OF 2015 Appeal under Section 96 of CPC against the Judgment and Decree dated 24- 12-2014 made in O.S.No.4 of 2003 on the file of the Court of the lV Additional District Judge, Ranga Reddy District, LB Nagar. Between: B. Chandra Reddy, S/o. Ram Reddy, Aged 63 years, Occ. Business, Fl/o. H.No. 2-5-1 12, Bharatnagar, Uppal Village and Mandal, R.R. District ...Appellant / Plaintift AND 1. T. Pratap Reddy, S/o Late T Ramchandra Reddy, Aged 75 years, Occ. Agriculture, Rl/o. H. No. 3-4-529 I 3, Narayanaguda, Hyderabad 2. T. Pusha, Wo. T. Pratap Reddy, Aged 69 years, Occ. Agriculture, Rl/o. H.No. 3-4-52913, Narayanaguda, Hyderabad 3. P. Dass, S/o. P. Narasaiah, Aged 68 years, Occ. Agriculture R/o. H.No. 3-1 - 73, Ramantapur Village, Uppal Mandal, R.R. District 4. Amid, S/o. Late M.A. Sattar, Aged Major, Occ. Business, P.Jo.3-131111, Ramantapur Village, Uppal Mandal, R.R. District 5. Shaman Sultana,, W/o Late M.A. Saftar, No.3-131111 , RamantapurVillage, Uppal Mandal, Ranga Reddy District. 6. Mohd. Mohida, S/o. M.A. Sattar, Aged 36 years, Occ. Business, No 3-131111 , Ramantapur, Uppal, Ranga Reddy District 7. Nazaran Sultana,, D/o. Late M.A. Sattar, Aged 37 years, Occ Not known, Rl/o. 31131111, Ramantgapur Village, Uppal Mandal, R.R. District 8. Nuzhat Sultana, D/o. Late M.A. Sattar, Aged 41 years, Rl/o. 31131111 , Ramantgapur Village, Uppal Mandal, R.R. District 9. Jabeen Sultana, D/o. Late M.A. Sattar, Aged 40 years, Rl/o. 31131111, Ramantgapur Village, Uppal Mandal, R.R. District ...Respondent / Defendants /

t.A. Counsel for the Appellant : Sri P Vijaya Lakshmi Counsel forthe Respondent No 1 : Sri S M Rafee Counsel forthe Respondent No 2 : Sri N Bhasker Rao The Court delivered the following Judgment : NO:2 oF 201 MP. NO:762 0F 2015 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit fired in support of the petition, the High court may be pleased to direct theRespondentnottoalienateorcreatechargeoverthesuitpropertyi.e.land admeasuring Ac.5.00 Gts forming part of Sy' No' 572' 573 and 574' Ghatkesar village and Gram Panchayat, Ghatkesar Mandal' R'R District pending the appeal' I

-) THE HONOURABLE SMT. JUSTICE P.SREE SUDHA APPEAL SUIT No.258 of2O15 JUDGMENT: This appeal is fited against the Judgment and decree d.ated 24.L2.2O14 rn O.S.No.4 of 2OO3 passed by the learned tV Additionat District Judge, Ranga Reddy District at L.B.Nagar. 2. The suit uide O.S.No.4 ot 2OO3 was filed by the appellant/plaintiff against respondents/defendants for Specific Performance of Agreement of sale and for Perpetual Injunction. The trial Court after considering the arguments of both sides dismissed the suit. Aggrieved by the said Judgment, plaintiff in the suit preferred the present appeal. 3. Heard both sides. Perused the record. 4. For the sake of convenience, the parties herein are referred to as "plaintifl" and "defendants" as arrayed in the trial Court. I

.1 5. P.W. I was examined on behalf of plaintiff and D.Ws. 1 and 2 were examined on behalf of defendants. Exs.Al to A7 were marked on behalf of plaintiff and no documentary evidence was adduced on behalf of defendalts. 6. The brief facts of the case are that defendant Nos.l to 4 and father of defendant No.4 by name M.A.Sattar were the owners and possessors of land admeasuring Ac.5.O0 in Sy.Nos.572, 573 and 74 of Ghatkesar Village and Mandal, R.R District bounded on North: 100,Wide road, South: 40, Wide road, East: Nala and West: Existing Huda Layout (hereinafter relerred as .suit schedule property,). plaintiff entered into an agreement of sale dated 25.04.1996 with defendant Nos. 1 to 3 and father of defendant No.4 with consideration of Rs.3.9 lakhs per acre totaling to Rs.19.5O lakhs. On the date of agreement of sale, plaintiff paid Rs.S lakhs and agreed to pay the balance amount in three installments. The neighbor of the suit schedule property, Mr.G.Mohan instituted a suit for perpetual injunction in O.S.No.296 of 1996 against defendant No.l and plaintiff. Defendant Nos. 1 to 3 and father of defendant No.4 also

) instituted a suit for declaration and injunction in O.S.No.SS1 of 1996. The litigation went up to September' 1999. Plaintiff was ready and wiiling to perform his part of contract by paying balance sale consideration of Rs'14'6 lakhs. During the pendency of litigation, defendants have been postponing the registration by assuring the plaintiff to wait for verdict of the titigation, and the time for performing the contract was mutually extended from time to time' Defendant Nos.1 to 3 and M'A.Sattar had been dodging the matter under one pretext or the other, even after the litigation is completed. In the meanwhile, M'A'Sattar' who was vendor No.4 in the agreement died and inspite of his best efforts, plaintiff could not find his legal representatives. 7. Plaintiff filed copy of the plaint and written statement in O.S.No.296 of 1996 and a-lso filed copy of the plaint in O.S.No.SS1 of 1996. Common judgment was passed in O.S.Nos.296 and 551 of 1996 on 2l'O9'1999' Injunction was granted in favour of plaintiff and suit for declaration was dismissed and the said judgment was not challenged

6 and it attained finality. As there was road widening from Hyderabad to Warangal, the suit schedule property was acquired by Government for road widening. In September, 2OO2, many people contacted plaintiff and expressed their intention to purchase the suit schedule property from defendants, as such plaintiff gave paper publication on 24.09.2OO2 and also issued legal notice dated 01. 1O.2OO2. In a reply dated 13. 10.2002, defendants refused to perform their part of contract. plaintiff left with no other option and thus he approached the Court and filed suit for specific performance of contract. He further stated that from the date of refusal i.e., from t3.7O.2OO2, he filed the suit within limitation and thus requested the Court to direct the defendalts to register sale deed and he sought for alternative relief of refund of the amount with interest. 8. In the written statement filed by defendants, they denied alt the allegations arrd stated that suit for specific performance is barred by limitation and plaintiff failed to perform the duties within stipulated time as per terms arrd conditions of agreement of sale. plaintiff could not pay the

1 balance sale consideration within three installments as such the amount given by him is forfeited. Pendency of the other suits a-re no way connected with the present suit and its cause of action. Plaintiff is estopped from claiming the suit property as per law and the facts of the case and he hled the details of the case only to mislead the Court and thus requested the Court to dismiss the suit. 9. P.W.l in his cross-examination admitted that total sale consideration is Rs.19.5 lakhs. Plaintiff and defendants orally entered into agreement on 14.04.1996 and paid some consideration of Rs.4O,O00/- or Rs.50,000/- and obtained receipt and the balance has to be paid in three equal installments on 14.O7 .1996, 14.10.1996 and 14.01.1997. He has to pay Rs.4,88,000/- and odd for each installment, but he did not pay the same and he has not even issued notice to defendants informing them t}lat he is ready with the installment amount. He has not filed any proof regarding his financial capacity to pay balance of sale consideration by 14.01. 1997 . He is not an income tax assesse. He was having bank account by the I : I I

8 date of Ex.Al, but he did not file the same. As per the agreement, the balance has to be paid in nine months from 14.04.1996. In page No.3 of the agreement, it was mentioned that if the balance of sale consideration is not paid within stipulated time, he has to pay penal interest of 2o/o. Mohan liled suit for injunction against defendant Nos. 1 to 4 and defendant No.l filed written statement in the said suit and the suit was decreed on 21.09.1999. He is not a party in O.S.No.SS I of 1996. Ex.A2 does not disclose any survey number in the schedule. The schedule property disclosed the southern boundary as the plaintifl,s land in Sy.No.572 part, S73 part and 574 pafi. He has not issued any notices to defendants from September 1999 to October 2022 informing that he was ready to perform his part of contract. He has not issued any notice stating that in view of pendency of O.S.Nos.296 and S51 of 1996, he could not pay the balance sale consideration as per the agreement. It was suggested that he has no financial capacity to pay the balance of sale consideration, but he denied it. I

Defendant No.4 stated that his father died on 23.10.200 1 9 10. Defendant Nos. I and 4 were not cross examined. leaving behind him, his mother and his sisters as legal heirs. They obtained Family Members Certificate from the Office of Tahsildar, Uppal Mandal, on l2.O1.2OlI vide Proc.No.C/Spl./2011 ard filed it as Ex.B1. 1 1. Perusa-l of the record shows that plaintiff and defendant Nos. 1 to 3 and father of defendant No.4 executed agreement of sale on 25.O4.1996. In the agreement it was stated that vendors who are the absolute owners of the suit schedule property in Sy.Nos.572 part,573 part and 574 part admeasuring Ac.5.0O guntas, purchased the same vide Doc.No.359l/93, at Uppal, S.R.O. It was agreed for an amount of Rs.19.5 lakhs and on the same day, plaintiff paid Rs.5 lakhs and the oral agreement was entered on from 14.04.1996 and the balance of sale consideration has to be paid in nine months from the date of oral agreement i.e., from 14.O4.1996 in three equal installments i.e., 14.O7.1996, 14.1O.1996 and 14.01.1997 is final. It was / 14.04.1996 and the period of agreement is nine months I

also stated that they failed to execute registered sale deed within stipulated time and thus he filed suit for specific performance and also for damages. It is further stated that if the vendors fails to execute the sale deed within stipulated time, they shall pay 2Zo interest on remaining balance ol sale consideration. 12. l,earned counsel for appellant mainly contended that in view of the pendency of the suits, appellant couid not pay the balance of sale consideration and he is ready to pay the said amount as such he gave legal notice on 01.IO.2OO2 expressing his readiness and willingness to pay ba.lance of sale consideration and requested the respondents to register sale deeds in three days. Respondents gave reply on 13.10.2002 and, stated that agreement of sale is not valid as it was not enforced. O.S.Nos.SS I and.297 of 1996 are no way connected with the present case. In the agreement, it was specifically mentioned ih.a ..,,i..: amount has to be paid in three rnstallments, as such the agreement of sale is barred. t0 He srx -years and the agreement of sale kept quiet for all I I I I

il automatically cancelled and the amount is forfeited, then plaintiff filed the suit for specific performance. 13. A perusal of agreement clearly shows that within the stipulated time, balance of sale consideration has to be paid in three installments on or before 14.01.1997 and the said date is final. The vendors failed to execute register sale deed and thus he filed suit for specific performance and for damages. The time limit was specilically mentioned. In clause (1) it was mentioned that if the purchaser fails to pay balance of sale consideration within stipulated time, he has to pay the interest at 2o/o for the balance amount. It cannot be said that he has to pay the amount at any point of time according to his convenience. Agreement was executed on 25.O4.1996 and he gave notice on 01.1O.2OO2 regarding his readiness and willingness to pay the amount i.e., after 7 years. 14. The counsel emphasized that in view of the pendency of the suits before the Court, he could not pay the amount. He argued that the land acquired by the Government is passa€e for the suit schedule property as such he was I

t2 contesting the suits and because of the said reason he could not pay the balance amount. He has not stated the said fact either in the plaint or in the legal notice. It was opposed by respondents that regarding penal interest, he has not stated anything either in the plaint or in the legal notice or in the evidence and it was taken up for the first time in the appeal at a belated point of time according to his convenience. Thus, the argument of the appellant counsel that in view of the payment of penal interest he can pay the balance amount at any point of time cannot be accepted. 15. Admittedly, within the time period he could not pay the balance of sale consideration as per the terms of agreement ol sale and thus he is not entitled for specific relief as claimed by him. Learned counsel further stated that suit filed by him is within the limitation Ernd he can file the suit either w.ithin three years from the date of agreement of sale or from the date when respondents refused in reply to the notice. Therefore, filed the suit and this it is within the limitation.

n 1l 16. Both the counsel relied upon several citations on the above aspects. In a citation {iled by respondents reported in J.P. Builders and another Vs A.Ramados Rao and anotherl, it was held as follows: 21- Among th,e three clauses, u)e ore more concented about clause (c). " Readtness and tttilltngness" ts enshrined in cLouse (c) u,thich wos not present tn the old. Act of 1877. Howeuer, tt was later inserted tuith ttLe recommendotions of the 9tn Latu Commission's Report. This cLause prouides that the person seektng specific performance must proue that he has perfonned or has been readg and. tuilting to perform the essentiol terms of the controct ttthich ore to be performed bg him. 22. The utords "readg" and "ttttLling" impty that the person uas prepared to carrA out the tenns of the contract. The distinction bettteen "reodiness" and "tuillingness" i"s that the former refers to finoncial capacitg and the lqtter to the conduct of the plaintiff u,runting performance. Generally, readiness is backed bg u.tillingnes s. 17. Learned counsel for respondents further stated that it is for the plaintiff to prove that he is always ready and willing to perform the contract and he has to prove '(2or r) I scc 429

t4 continuous readiness lrom the date of agreement till the date of hearing of the suit. It was specifically mentioned in Section 16 (c) of the Specilic Relief Act. He also relied upon judgments in Jugraj singh and. .,nother vs Labh singhz, N'P'Thirugnqnam (died) bg lRs I/s Dr.R..ragan Mohan Rqo q.nd Otherss for the said propositions. 18. In a citation reported in Smt.Cho.nd. Ranl (dead) bg IRs vs Kamqr Rani (dead) bg LRst, it was stated that contract has to be performed within reasonable time in view of the conditions of the contract i.e., from the express terms of the contract, from the nature of the property and from the surrounding circumstances, for example the object of making the contract. 19. Learned counsel for appellant also relied upon certain citations to emphasize that there is a delay in fiIing the suit for specific performance which considered in his favour. The Hon,ble Apex Court in the case of 2 atR I995 sc ga5 ' AIR t996 SC I t6 . AIR I993 SC I 742 \

l5 P,Daiaasiganrrcrni Vs.S.Sambandanrs has laid down the following pa-rameters for grant ol relief of specific performance: D Wlwtlrcr there eists a ualid and oncluded contract betueen the parties for sale/ purchase of the suit property. D Whether the plaintiff has been readg and uilling to perform his part of contract and uhether LLe is still readg and willing to perform his part as mentioned in the contract. ) Wtether tle plaintiff hos in fact, perfonned his port of the contract and, if so, hotu and to what ertent and in uthat manner he has performed and uhether such performance uas in conformitg uith the terms of the contract. Y Whether it uill be equitoble to grant the relief of specific perfortnance to the plainttff against the dekndant in relation to suit propertA or it uill cause anA kind of hardship to the defendant and, if so, how arud in what manner and the extent if such relief is euentually granted to the plaintiff. ) Whether tl'Le plaintiff is entitled for grant of ang otLer altematiue relief, namely, refund of eamest moneA etc. and, if so, on tuhat grounds. It is also laid down in the same Judgment th.at "Readiness and uLillingness cre not one, but two separate elements. Readiness means the capacitg of the plainttff to perform the contract, uthich tuouLd include the financial position to pay the purchase pice. Witlingness refers to the intention of the plaintiff as a purchq"ser to perfonn his part of tle contract. Willingness is infened bg scrutiniziftg the conduct of the I 5 AIR 2o2z scc 5oo9 I

20 agreement, balance of 16 plaintiff filed Rs.5 Rs.4 lakhs within plaintiff/purchaser, including attend.ing circumstances. Continuous readiness and u_tillingness on the part of the plaintiff/ purchaser from the date the balance sale consideration was payable in terms of the agreement to sell, till the decision of the suit, ts a corudition preced.ent for grant of reltef of speciftc performance.o Now it is for the Court to consider the arguments of both sides. In rriew of the citations referred by both the parties, there is no dispute regarding the agreement of sale executed way back in the year 1996. It was also mentioned in the agreement of sale that balance is to be paid within the period of nine months On the date of lakhs and agreed to pay nrne months in three rnstallments but tailed to do so. He mainly contended that even he failed to pay balance of sale considerations, he is at liberty to pay the same with interes t at 2Vo on the balance amount, but he has not raised the issue either in the legal notice or in the plaint or in his evidence at any point of time. The said aspect was raised during the

E t1 pendency of the appea-l lor the first time' His another contention is that in view of the pendency of O.S.Nos.296 and 551 of 1996, he could not pay the balance amount. The trial Court clearly observed that in the judgment, the plaintiff came to know about the suit in July 1997 and he has to pay the balance amount by 14.01.1997 prior to the filing of the said suits, as such the argument regarding pendency of other suits cannot be accepted- Moreover, it was clearly stated that the suits are not concerned with the present case. Therefore, the pendency of other suits cannot be the reason for non-payment of balance of sale consideration by plaintiff and it is in clear in violation of the terms and conditions of the agreement of sale. He has not issued any notices to defendalts that he could not pay the balance of sale consideration in view of the pendency of the suits and he would pay after the disposal of the suits. t For the first time in his notice given in the year 2OO2, he expressed his readiness and willingness and this clearly shows that he was not ready and willing to perform his part of contract. Moreover, he could not Iile the suit within I I

t8 three years, as such the suit is not barred by limitation. He also stated that in view of death of defendant No.4, he could not secure the details of LRs and thus there was some delay. All the reasons stated by plaintiff are not convincing. He clearry violated the terms and conditions of agreement of sale. He cannot take advantage of one clause mentioned in agreement of sale and it is for him to pay the balance u,ithin the reasonable period of time, but he railed to do so and there was no explanation of both the parties in view of the intere st of 2o/o. It was clearly stated that vendee can file the suit for specific performance if the vendors failed to pay the sale consideration within stipulated time, it is applicable to vendors also. plaintiff performed part of contract and agreement period is nine months and he tailed to pay the balance and it was clearly stated that the date 14.01.1997 is final and it carnot be extended any further and thus the argument of the appellant Counsel is not tenable. Therefore, this Court finds that there are no merits in the appeal and is liable to be dismissed.

I9 2I. In the result, the Appeal Suit is dismissed conlirming the Judgment ald decree d.ated 24.I2.2O14 in O.S.No.4 of 2003 passed by the learned IV Additional District Judge, Ranga Reddy District at L.B.Nagar. There shall be no order as to costs. Miscellaneous petitions pending, if any, shall stand closed. Sd/. K. SRINIVASA RAO JOINT REGISTRAR SECTION OFFICER One Fair Gopy to the Hon'ble Smt' Justice P Sree Sudha (Firr Her LordshiP's Kind Perusal) 1. The lV Additional District Judge, Ranga Reddy District, LB Nagar (with records, if any) 2. 11 LRCoPies 3. The Under Secretary, Union of lndia Ministry bf Law, Justice and Company Affairs, New Delhi 4.TheSecretary'AdvocatesAssociationLibrary,HighCourtfortheStateof Telangana, H-iOh Court Buildings at Hyderabad 5. One CC to Sri P Vijaya Lakshmi, Advocate [OPUC] 6. One CC to Sri S M Rafee' Advocate [OPUC] 7. One CC to Sri N Bhasker Rao, Advocate IOPUC] 8. Two CD CoPies [, To, & I I //TRUE COPY// /

HIGH COURT DATED:2311212024 JUDGMENT + DECREE AS.No.258 of 2015 DISMISSING THE APPEAL c) cd'( J[N .k t l) .i 4 2[?5 q 1 o.f O DE i) STAT€ 3 01 o w I Y,P ( 2 DRAFTS )

[ 3208 ] IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD MONDAY, THE TWENTY THIRD DAY OF DECEMBER TWO THOUSAND AND TWENTY FOUR Between: B. Chandra Reddy, S/o. Ram Reddy, Aged 63 years, Occ. Business, R:/o H.No. 2-5-1 12, Bharatnagar, Uppal Village and Mandal, R.R. District ...Appellant / Plaintiff AND 'l . T. Pratap Reddy, S/o Late T Ramchandra Reddy, Aged 75 years, Occ. Agriculture, Rl/o. H. No. 3-4-5n B, Narayanaguda, Hyderabad 2. T. Pusha, Wo. T. Pratap Reddy, Aged 69 years, Occ. Agriculture, Rl/o. H.No. 3-4-52913, Narayanaguda, Hyderabad 3. P. Dass, S/o. P. Narasaiah, Aged 68 years, Occ. Agriculture Fl/o. H.No. 3-1- 73, Ramantapur Village, Uppal Mandal, R.R. District 4. Amid, S/o. Late M.A. Sattar, Aged Major, Occ. Business, No.3-131111 , Ramantapur Village, Uppal Mandal, R.R. District 5. Shaman Sultana,, Wo Late M.A. Sattar, No.3-131111 , Ramantapur Village, Uppal Mandal, Ranga Reddy District. 6. Mohd. Mohida, S/o. M.A. Sattar, Aged 36 years, Occ. Business, No 3-131111' Ramantapur, Uppal, Ranga Reddy District 7. Nazaran Sultana,, D/o. Late M.A. Sattar, Aged 37 years, Occ Not known, Rl/o. 311311 11, Ramantgapur Village, Uppal Mandal, R.R. District 8. Nuzhat Sultana, D/o. Late M.A. Sattar, Aged 41 years, Rl/o. 31131111' Ramantgapur Village, Uppal Mandal, R.R. District 9. Jabeen Sultana, D/o. Late M.A. Sattar, Aged 40 years, Rl/o. 31131111 ' Ramantgapur Village, Uppal Mandal, R.R. District ..,Respondent / Defendants Appeal under Section 96 of CPC against the Judgment and Decree dated 24' 12-2014 made in o.S.No.4 0f 2003 0n the file of the court of the lv Additional District Judge, Ranga Reddy District, LB Nagar. PRESENT THE HONOURABLE SMT JUSTICE P.SREE SUDHA APPEAL SUIT NO: 258 OF 2015

ORDER: This appeal coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Lower Court and the material papers in the case and upon hearing the arguments of Sri P Vijaya Lakshmi, Advocate for the Appellant and of Sri S M Rafee, Advocate for the Respondent No. 1 and Sri N Bhasker Rao, Advocate for the Respondent No. 2. This Court doth Order and decree as follows:- 1. That the Appeal Suit be and hereby is dismissed confirming the Judgment and Decree daled 24-12-2014 in O.S.No.4 of 2003 passed by the lV Additional District Judge, Ranga Reddy District at LB Nagar; and 2. That there shall be no order as to costs in this appeal; Sd/- K. SRINIVASA RAO JOINT REGISTRAR //TRUE COPY// V SECTION OFFICER To, 1. The lV Additional District Judge, Ranga Reddy District, LB Nagar (with records, if any) 2. Two CD Copies &

/ / HIGH COURT DATED:2311212024 DECREE AS.No.258 of 2015 DISMISSING THE APPEAL I tr6