Andhra Pradesh State Financial Corporation = when the competent court has granted the relief of specific performance of agreement of sale in respect of the subject property in her favour, it is not open to the 1st respondent Corporation to sell the said property in favour of the 5th respondent in the guise of execution proceedings initiated by it. A perusal of the record shows that the agreement of sale alleged to have been executed in favour of the petitioner is an unregistered document and the same was executed subsequent to mortgage of the property in favour of the 1st respondent. In this view of the matter, the 1st respondent has a preferential claim over the property. Further, the 1st respondent Corporation is not a party defendant in the suits filed by the petitioner. As such, the decree obtained by the petitioner is not binding on the 1st respondent. Further, inasmuch as the sale has taken place in pursuance of the mortgage of the property in favour of the 1st respondent, the relief sought for by the petitioner cannot be granted. However, if the petitioner feels aggrieved by the action of the 3rd and 4th respondents, it is open to her to seek appropriate remedy against them in accordance with law. Hence, I do not find any merit in the writ petition to grant the relief as prayed for. The writ petition is, accordingly, dismissed. As a sequel, WPMP.No.5504 of 2013 filed for interim relief shall stand closed. No order as to costs.


WP 4417 / 2013

WPSR 23396 / 2013 
PETITIONERRESPONDENT
YANTRAPRAGADA SEETHA RATHNAM, W.G.DIST.  VSA.P.STATE FINANCIAL CORP.,REP.BY MD.,HYDERABAD, & 4 OTRS.
PET.ADV. : NARESH KUMAR GUNDAPURESP.ADV. : 
SUBJECT: AP STATE FINANCE CORPN.DISTRICT:  WEST GODAVARI


HON’BLE SRI JUSTICE R.SUBHASH REDDY

WRIT PETITION No.4417 OF 2013

ORDER:


          This writ petition is filed for a Mandamus to declare the sale of the land admeasuring Acs.2.00 in R.S.No.173 of Korumamidi Village, Nidadavolu Mandal, West Godavari District, in favour of the 5th respondent, pursuant to sale notice dated 29.07.2011, as illegal and arbitrary.
         
          Originally, the 3rd and 4th respondents were the owners of the aforesaid land.  They obtained loan from the 1st respondent-Andhra Pradesh State Financial Corporation by mortgaging the said land. Inasmuch as the 3rd and 4th respondents failed to pay the said loan amount, the 1st respondent has taken steps to recover the amount. In the said recovery proceedings, the mortgaged property was sold in favour of the 5th respondent. Claiming that she has purchased the aforesaid land from the 3rd and 4th respondents under an agreement of sale dated 09.02.2007, the petitioner filed O.S.No.379 of 2009 on the file of the Principal Senior Civil Judge, Kovvur, against the 3rd and 4th respondents, for specific performance of the said agreement of sale or, in the alternative relief, pass a decree for refund of the amount paid as an advance. By judgment, dated 08.11.2010, the said suit was decreed ex parte granting the alternative relief of refund of the amount paid as an advanceAssailing the said judgment, the petitioner herself filed A.S.No.50 of 2012 on the file of the Additional District Judge, West Godavari District, Kovvur, alleging that instead of granting the decree for specific performance of the agreement of sale, the trial below granted the alternative relief of refund of the advance amount. After detailed consideration of the matter, the appellate Court modified the judgment dated 08.11.2010 passed by the trial Court granting the relief of specific performance and directed the petitioner to deposit the balance sale consideration, upon which the 3rd and 4th respondents were directed to execute the registered sale deed in favour of the petitioner.

          In this writ petition, it is the grievance of the petitioner that 
when the competent court has granted the relief of specific performance of agreement of sale in respect of the subject property in her favour, it is not open to the 1st respondent Corporation to sell the said property in favour of the 5th respondent in the guise of execution proceedings initiated by it.

          A perusal of the record shows that 
the agreement of sale alleged to have been executed in favour of the petitioner is an unregistered document and the same was executed subsequent to mortgage of the property in favour of the 1st respondent. In this view of the matter, the 1st respondent has a preferential claim over the property. 
Further, the 1st respondent Corporation is not a party defendant in the suits filed by the petitioner. As such, the decree obtained by the petitioner is not binding on the 1st respondent. 
Further, inasmuch as the sale has taken place in pursuance of the mortgage of the property in favour of the 1st respondent, the relief sought for by the petitioner cannot be granted. 
However, if the petitioner feels aggrieved by the action of the 3rd and 4th respondents, it is open to her to seek appropriate remedy against them in accordance with law. Hence, I do not find any merit in the writ petition to grant the relief as prayed for.

The writ petition is, accordingly, dismissed. As a sequel, WPMP.No.5504 of 2013 filed for interim relief shall stand closed. No order as to costs.
____________________

R.SUBHASH REDDY, J

20th February, 2013
tk/v v


                                  
HON’BLE SRI JUSTICE R.SUBHASH REDDY

















W.P.No.4417 of 2013


20th February, 2013.
tk/vv


Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515