u/sec. 55(1)(d) r/w 55(b) of the T.P.Act.,Section 55(6)(b) of the T.P.Act ,Section 73 of the T.P.Act. = Refund of amount paid under agreement of sale - charge - liability of legal heirs =Thus, the CCCAMP Nos.643 and 644 of 2015 are closed and both the appeals are held to be allowed in part and with costs, while confirming the trial Courts decree and judgment in refusing the relief of specific performance of the contract for sale and in granting the alternative relief for the refund of the amounts with interest, by modifying the amount and by modifying from what is awarded against the D.1 to against the D.1 personally also and against D.2 to D.7(R.2 to R.10) on the property of the mother of D.2 to D.7 in the hands of D.2 to D.7(Now R.2 to R.10) for the following:-The Apex Court in Delhi Development Authority Vs. Skipper Construction Company Pvt.Ltd and judgment of another Bench of this Court in Mudureddipalle Sanjeeva Reddy Vs. Butturu Rama Mohan Reddy and also from the expression with reference to the provision similar to it in Rose Vs. Watson following the earlier expression in De Bernales Vs. Wood of right to refund of the amount is safeguarded by giving the purchaser of lien on the property and interest to be allowed from the time of purchase on the amount paid. It is further the Full Bench of the Lahore High Court in Shankri Vs. Milkhasingh held that the power of giving charge over the property covered by the contract for sale is not just kept by any agreement, but by operation of law from the moment of payment of the purchase amount- In Muniappa Vs. Subbaiah it is held on the scope of charge under Section 55(6)(b) of the T.P.Act as akin to the principle to apply to the enforcement of mortgage and substituted securities from the general principle of law in Section 73 of the T.P.Act.- which is to recover against the D.1-Developer personally also and also against the D.2 to D.7 with no personal liability but for on the estate of their mother D.L.Kanthamma which they succeeded, with charge over said property to realize the amount but for to say the executing Court if at all to invoke Section 52(2) C.P.C. for any personal liability against D.2 to D.7 if requirements to that extent satisfied) u/sec. 55(1)(d) r/w 55(b) of the T.P.Act.

HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO          

C.C.C.A.No. 111 of 2009 AND BATCH  

22-04-2016

T.Pattabhi Rama Rao,...Appellant/Plaintiff

Y.Yadava Rao  and others.Respondents/defendants  

!Counsel for the Appellant  in both
                        the appeals: Sri S.Agastya Sharma,

^Counsel for respondents   in both
                          the appeals:Sri G.Madhusudhan Reddy,
                                      Sri C.V.Bhasker Reddy,
                                      Sri C.V.Mahesh Raje

<GIST :  ---

>HEAD NOTE : ---

? Cases referred:                                :
    2008(5) ALD 200
2   AIR 1989 SC 193
3   AIR 1987 SC 1242
4   AIR 1966 SC 735,
5   AIR 1954 SC 458
6   AIR 1953 SC 235
7   (2008)17 SCC 491
8   AIR 1995 SC 167
9    AIR 1988 SC 719(B)
10  1991 (3) SCC 331
11  AIR 1999 SC 1441
12  AIR 2005 SC 439 = (2005)2 SCC 217  
13  AIR 2009 SC 422
14  (2010)10 SCC 512
15  AIR 1995 SC 945
16  2006(7) Supreme 388
17  (1996)4 SCC 593
18  AIR 2005 SC 5303
19  2005(2) ALD 631
20  (2000)6 SCC 420
21  AIR 1971 SC 1238
22  (1999)6 SCC 337
23  (2008)5 SCC 676
24  Civil Appeal No.4841 of 2012, dt.03.07.2012
25  (2012)1 SCC 656
26  (2008)7 SCC 310
27  (2008)1 SCC 45
28  (1996)5 SCC 589
29  2015 Law Suit (SC) 636
30  (2005)7 SCC 534
31  AIR 2008 SC 1786
32  (2005)6 SCC 243
33  AIR 2009 SC 2157
34  (2011)1 SCC 429
35  (2004)6 SCC 649
36  (2002)5 SCC 481
37  (1995)5 SCC 115
38  AIR 1997 SC 1751
39  (1993)1 SCC 519
40  AIR 1968 SC 1413
41  Laws (APH)-1970-3-33
42  (2010) 11 SCC 441
43  (2016) 2 SCC 569
44  (2012) 1 SCC 656.
45  (2004)2 SCC-297
46  2008(1)ALT 10(SC)
47  AIR 2000 SC 573(1)
48  2010(1) ALD 470
49 (1864) 10 HIC 672
50  (1812) 3 Camp. 258
51  AIR 1941 Lah.407(FB)
52  AIR 1937 Madras 714
53  AIR 1917 Madras 880


HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO          

CCCAMP No.643 and 644 of 2015 in C.C.C.A.No. 112 of 2009  
and
C.C.C.A.Nos. 111 AND 112 of 2009

COMMON JUDGMENT :      


        The respective two plaintiffs no other than own brothers by names
T.Pattabhi Rama Rao (for short, TPR) in O.S.No.1689 of 2003 and Sri
T.Krishna Murhty (for short, TKM) in O.S.No.1690 of 2003 on the file of
the VIII Additional Senior Civil Judge(FTC), City Civil Court, Hyderabad,
maintained the two suits supra  against the 7 self-same defendants by
names Y.Yadava Rao, 2. Dr. D.Satyanarayana Rao, 3. Sri D.Suryanarayana  
Rao, 4. Dr.D.Lakshmi Narayana Rao, 5. Sri D.Venkat Narayana Rao, 6. Sri
D.K.Narayana Rao and 7 Sri D.Ram Narayana Rao, of whom the  
defendant Nos.2 to 7 are no other than the legal heirs of the original
owner of the property by name late Smt. D.L.Kanthamma, w/o late Sri
D.B.Narayana, for specific performance of the contract for sale with
alternative prayer for refund of the amounts with interest and for suit
costs and such other reliefs.  On contest by D.1-Developer as well as D.2
to D.7 supra, the learned Judge vide two separate judgments dated
26.03.2009 decreed both the suits in part with costs only against the
D.1-Devoloper supra, for the alternative relief of refund of the amount
holding as Rs.40,000/- in O.S.No.1689 of 2003 and Rs.5,00,000/- in
O.S.No.1690 of 2003, together with interest at 12% p.a. from date of
demand on 10.06.2002 till date of decree and with subsequent interest
from date of decree till realization at 6% p.a. while dismissing the
respective suit claims including for refund against D.2 to D.7.

        2.  It is now impugning the respective two judgments and decrees
of the trial Court, the two independent appeals supra i.e. CCCA No.111
of 2009 against O.S.No.1689 of 2003 and CCCA No.112 of 2009 against
O.S.No.1690 of 2009 are maintained by the self-same
plaintiffs/appellants against the selfsame defendants/respondents.  It is
during pending of the appeals, the 3rd respondent by name Sri
D.Suryanarayana Rao died and his wife and sons as his legal
representatives are brought on record as R.8 to R.10 by names
Smt.D.Jyothsna Kumari, Sri D.Muralidhar Rao and Sri D.Bhadri Narayana
as per orders in CCCAMP No.458 of 2012 in CCCA No.111 of 2009 and as  
per the orders, dated 21.11.2012 in CCCAMP No.516 of 2012 in CCCA  
No.112 of 2009.
        3.  It is during pendency of the two appeals, ad interim injunction
sought by the appellants against the respondents supra from alienating
the plaint/decree schedule property, in CCCAMP No.369 of 2009 and
CCCAMP No.370 of 2009 respectively in the two respective appeals and
the interim injunctions respectively were granted.  So far as CCCAMP
No.369 of 2009 in C.C.C.A.No.111 of 2009 is concerned, there is a
separate application to vacate the stay/interim injunction supra.
Opposing the interim injunction orders supra, counter affidavit of the
R.2 to R.7(D.2 to D.7) were filed. The interim injunction applications as
on date with the orders supra are in force and the applications are still
pending.  The applications are not dealt with separately herein, but for
to dispose of subject to the result of the two appeals.
       
        4. At the request of both the sides and for sake of convenience
from the issues involved in both the matters since identical against self-
same respondents/defendants, both the appeals are taken up together
for common disposal.
       5. It is during the course of common hearing of the appeals referred
supra, on behalf of the plaintiffs/appellants Sri T.Krishna Murthy filed
two applications vide CCCAMP No.643 and 644 of 2015 to mark the copy
of the Development Agreement (for short, the DA) dated 03.12.1998 by
receiving as additional evidence and as exhibit in both the appeals and
said applications are opposed by counter affidavit of R.4 and common
counter affidavit of R.2,3, 5 to 7 through R.6(R.2 to R.7 of the appeal).
These two petitions are taken up with the appeals for hearing and
disposal.

       6. From this background, the common contentions but for one or
two grounds in relation to the respective amounts and payments, in the
grounds of both the appeals are that the trial Court ought to have seen,
appreciated and relied upon the pleadings and evidence of respective
plaintiffs in the respective suits and ought to have held that each of the
plaintiffs proved his case respectively by adducing cogent and
acceptable evidence, in support of the respective pleadings and
consequently ought to have decreed the respective suits, as prayed for.
The trial Court was not justified in ignoring to take cognizance of the
specific pleading of the respective plaintiffs/appellants herein, in
paragraph 7 of the respective plaints to the effect that the respective
plaintiffs performed their part of contract by paying the sale
consideration (Rs.5,40,000/- out of Rs.5,50,000/- in O.S.No.1689 of 2003
and Rs.6,20,000/- in O.S.No.1690 of 2003) to the D.1-Developer herein
under the Agreements of Sale dt.20-10-2000 and informed the D.1-
Developer that respective plaintiffs are ready with balance amount of
Rs.10,000/- in O.S.No.1689 of 2003 and of registration charges and of
registration charges in O.S.No.1690 of 2003 for registering the sale deeds
respectively  in their favour, however, the D.1-Developer and other
defendants failed to perform his part of contract under said two
agreements and the respective plaintiffs are thus entitled to seek
specific performance of the contracts for sale in respect of the
respective plaint schedule properties.  The plaintiff in O.S.1689 of 2003
is ready to pay the megre balance amount of Rs.10,000/- and met
registration charges and also ready to meet registration charges by the
plaintiffs in O.S.No.1690 of 2003, having paid entire consideration to
obtain their respective deeds of conveyance.  The trial Court ought not
to have answered Issue No.1 against the respective plaintiffs/appellants
and in favour of the respondents/defendants. The trial Court ought to
have seen and appreciated the specific pleadings of the respective
appellants/plaintiffs, such as a) the D.1 herein shall construct a building
as per the sanction accorded by the MCH with his own money and
develop the building in terms of the said agreement, b) the D.2 to D.7
herein who are the sons of Smt D.L.Kantamma have also authorized the
D.1-Developer to enter into an agreement of sale with purchasers of the
above said property and in pursuance of the above said respective
agreements, the D.1-Developer is entitled to seek the entire cellar,
ground and the entire first floor consisting of commercial spaces units
along with proportionate area of land on which the building is
constructed, c) for purchase of office space bearing No.106 and 105 in
the first floor admeasuring 1000 sq.ft. and 1050 sq.ft. respectively of
super plinth areas together with an undivided share of land of 25 sq.
yards each in the building constructed in the above mentioned property,
more fully described in the schedule annexed hereto for a total sale
consideration of Rs.5,50,000/- and Rs.6,20,000/- respectively, d) the
respective plaintiffs herein have paid entire sale consideration to the
D.1 herein but for Rs.10,000/- by plaintiff in O.S.1689 of 2003. e)
however, the said D.L.Kantamma shall be joined in execution of Sale
deed along with her sons to convey a better title to the respective
plaintiffs herein and also undertake to get the execution and registration
of the sale deed done in favour of the respective plaintiffs herein and to
convey a better and effective title. f) as per said agreements, the D.1-
Developer has to complete the construction on or before 31-03-2001 and
execute respective registered sale deeds and deliver possession of the
respective property on receipt of full consideration of Rs.10,000/- in one
of the suit claim detailed supra.  In spite of it, the defendants were
postponing from time to time under one or the other pretext to perform
their part and g) the respective plaintiffs have performed their part of
contracts and are ready and willing to perform if anything due to obtain
registered deeds of conveyance in their favour, hence the trial Court
ought to have decreed the respective two suits for specific performance
as prayed for. The trial Court ought to have seen and appreciated that
the pleadings and documentary evidence relied upon by the respective
plaintiffs were specifically stated and solemnly affirmed on oath in the
evidence affidavits and the same is neither rebutted nor shattered in the
cross-examination of PW-1 respectively and as such the trial court ought
to have taken consideration of the same for answering the respective
issue No.1 in favour of the respective plaintiffs. The trial Court ought to
have seen and appreciated that the respective plaintiffs/appellants
adduced cogent and acceptable evidence by marking several documents  
and by examining themselves as PW.1 and proved their respective claim
to decree the suit claims. The trial Court was thus not justified in
observing at the end of paragraph 12 of the respective Judgments to the
effect that the said agreement of sale is signed by vendor No.2
described as duly authorized and neither the plaintiff nor vendor No.1
signed on the agreements of the sale and two witnesses were signed
which itself falsifies the contention of the respective plaintiffs that he
entered into agreement of sale with D-1 to the knowledge of D-2 to D-7,
in respect of the suit schedule property while answering issue No.1;
since D-1 is duly authorized to enter into an agreement with prospective
purchases in respect of the constructed area that had fallen to his share,
as per the very Development Agreement. The trial Court ought to have
seen and appreciated that the documents marked prima-facie
substantiate payment of sale consideration and should have decreed the
suit, as prayed for, in answering the respective issue No.2 in favour of
the respective plaintiffs/appellants, even in respect of alternative relief
against all with a charge on the respective suit schedule property. The
trial Court ought to have seen and appreciated that Ex.A.2,5 and A-7 in
O.S.No.1689 of 2003 and Ex.A.2,5,7 and 9 in O.S.No.1690 of 2003 can be
addressed only to D-1, since payment was made by respective plaintiff
only to D.1, based on Development Agreement entered into by him with
owners which authority is enough to bind them and had it been the
absence of any such authority conferred upon the Developer by owners,
the respective plaintiffs/appellants would not have entered into the
agreements for sale with D-1 nor paid any amount to him, towards part
payment of sale consideration respectively.  In any event, the trial Court
failed to take cognizance of this particular aspect, which is having a
strong bearing on the scope and purview of both the suits for specific
performance of agreement of sale. The trial Court was not justified in
observing at paragraph 13 at page 11 to the effect that the contention of
plaintiff is not supported by either oral evidence or documentary
evidence that D.L.Kanthamma and/or her sons D-2 to D-7 are parties to
Ex.A-1, in view of the subsistence of the Development Agreement
between owner and developer. The trial Court  having taken cognizance
of the clear admission made by D-1-Developer in his written statement
that he entered into agreements for sale with respective plaintiffs and
ought to have appreciated that the admitted facts need not be proved
and accordingly ought to have decreed the respective suits.  The trial
Court was not justified in observing at the end of paragraph 13 that the
respective plaintiffs can rely on the sale agreements to get the relief
against D-1 alone, in view of the admitted fact that D-1 is duly
authorized agent to enter into agreement of sale with respective
purchases in respect of built up area that had fallen to the share of D-1,
as per Development Agreement that was subsisting and existing between
D-1 and the owner, represented by D-2 to D-7, as on the date of
agreement of sale in question and as such, the learned trial judge ought
to have answered the respective issue No.1 in favour the respective
plaintiffs/appellants.  The trial Court thus was not justified in answering
the issue No.1 against the respective plaintiffs, with observation in
paragraph 14 that it finds that issue relating to the relief of specific
performance is confined only against D-1. The Learned Judge was not
justified in observing in paragraph 15 in both the judgments that a
perusal of the documents filed on behalf of  plaintiffs do not disclose
that the respective plaintiff has expressed  readiness and willingness to
perform his part of the obligation for getting the registered sale deeds
from D-1 within the time stipulated in Ex.A-1, though there is proof on
record that followed by legal notice and specific pleadings in plaint and
evidence in support of it in the respective two suits, as stated supra. The
trial Court was not justified in observing further in para-15.(b) that the
respective plaintiffs themselves opted for refund of the sale
reconsideration paid by them and demanding the D.1 to that effect by
addressing letters in the year 2002 basing on which holding  that the
respective plaintiffs failed to establish that they are ready and willing to
perform their part of the contract and to get registered sale deeds in
their favour as per provisions of Sec.16 of the Specific Relief Act. The
trial Court was not justified in observing that the plaintiff failed to
produce any document to show that D.2 to D.7 have got knowledge
about the agreements of sale etc, since D.2 to D.7 have knowledge
regarding purchase of flat by respective plaintiffs, both by personal
interaction and also through letters that were addressed to D.1, while
marking a copy to D.7 (in O.S.No.1689 of 2003) to D.5 (in O.S.No.1690 of
2003), representing D.2 to D.7. The trial Court was not justified in giving
a finding that the respective plaintiffs are entitled for refund of amounts
stated to be paid by them to D.1 as they failed to establish that they
paid to D.1 though material available on record.  The trial Court was not
justified in giving a finding that the plaintiff in O.S.No.1689 of 2003 is
entitled for refund of Rs.40,000/- only and in O.S.No.1690 of 2003 is
entitled for Rs.5,00,000/- only instead of as prayed for, hence to set
aside the respective judgments and decrees by allowing the appeals as
prayed for.

        7. The additional evidence application affidavit petition averments
relevant in this context to refer are the following:
         It is submitted that the Development Agreement dated 03.12.1998
was not marked as Ex.B.1, despite D.5 filed in his evidence affidavit on
behalf of D.2 to D.7 as D.W.1 at the end of evidence affidavit in
O.S.No.1689 of 2003 to the effect that the documents i.e. Development
Agreement dated 03.12.1998 between D.L.Kanthamma and the D.1 as    
Ex.B.1 and certified copy of MCH sanctioned Plan dated 03.12.1998 as
Ex.B.2. The counsel for D.2 to D.7 in trial Court served copy of list of
documents together with copies of Development Agreement dated
03.12.1998 and sanctioned plan dated 03.12.1998 on his counsel and the
same were filed in paper book in the above Appeal at page Nos.65 to 75.
He was under bona fide belief and impression that copies of
Development Agreement dated 03.12.1998 and sanction plan dated  
03.12.1998 were marked as Ex.B.1 and B.2 on behalf of D.Nos.2 to 7. But
only sanctioned plan was marked as Ex.B.1 for the reasons better known
to D.Nos. 2 to 7.  Since parties to the original suit and above appeal
relied upon Development Agreement dated 03.12.1998, in support of
their pleadings and oral evidence, including from the cross-examination
of P.W.1 & D.W.1, it would be in the interest of justice to receive and
mark Development Agreement dated 03.12.1998 as Ex.B.1 in the above  
appeal. Even the D.1-Developer in O.S.No.1690 of 2003 in whose favour
the Development Agreement dated 03.12.1998 was executed by the  
original owner, was cross-examined has D.W.1, based on the
Development Agreement. Despite due diligence before the trial Court,
plaintiff could not get the Development Agreement marked as Exhibit in
the suit O.S.No.1689 of 2003. It is further submitted that original of  said
Development Agreement dated 03.12.1998 was apparently filed by D.2
to 7 along with evidence affidavit of D.W.1 for marking as Ex.B.1.
Hence, may be permitted to submit that the D.W.1 having filed the
original of copy of said Development Agreement ought to have ensured
that the same was marked as an exhibit on their behalf. Since the same
is not marked as an exhibit and the parties to the above appeal relied
upon said Development Agreement in their pleadings and cross-
examination; marking of  said Development Agreement as an exhibit is
just and essential.  Hence, to receive the copy of Development
Agreement as additional evidence and mark the same as an exhibit.

       8. In reply to it, heard the learned counsel for the respondents
which are discussed further.
       9. So far as the R.1 is concerned, as per the orders in
C.C.C.A.M.P.No.345 and 344 of 2012 respectively could not be served
through courier, registered post and telegaram and SMS, Substitute
service by paper publication in Eenadu, Secunderabad Edition was
ordered and complied with, thereby service is held sufficient to R.1. But
he did not appear and contest. Thus it is taken up to decide on merits on
behalf of R.1 from R.2 to R.7 are mainly contesting.
       10. The contentions of the learned counsel for the respondents-
defendants 2 to 7 supra in opposing the respective two appeals is by
supporting the trial Courts partly decreeing the two suits only against
the respondent No.1/D.1, while dismissing against the R.2 to R.10. It is
the submission that D.1 failed to construct as per the Development
Agreement and the same was later cancelled and thereby the R.2 to
R.10 are not bound by the sale agreement with D.1 entered by the two
plaintiffs and once the trial Court having fresh in mind of facts from
recorded the evidence arrived a just conclusion in deciding the lis in
partly decreeing for alternative relief only against D.1 for refund of what
is only proved paid, there is nothing to interfere for this Court while
sitting against in the appeals and that too for no personal liability even
on R.2 to R.10 and thus sought for dismissal of the two appeals as well as
the additional evidence document receiving and exhibiting petitions.

      11. From above rival contentions in deciding both the appeals by
common disposal, the common points that arise for consideration are :-

1.  Whether the respective plaintiffs are entitled to the
decree for main relief of specific performance of the
contract for sale and if so, with what observations?
               
2. Whether the trial Courts respective decrees and
judgment in granting alternative relief for refund of
amounts with interest respectively, that too, against the
D.1 and not against D.2 to D.7 (R.1 to R.7 of whom  R.3
since died represented by R.8 to R.10 as legal heirs) is
unsustainable including on the quantum of the amounts
paid by the respective plaintiffs arrived at by the trial
Court, and if so to what amount? If so, the relief granted
supra only against D.1 is unsustainable and all the
defendants/respondents are equally and jointly liable to
submit the suit reliefs for specific performance of the
contract for sale respectively in favour of the two plaintiffs
or at least for the alternative relief with common liability
against all for refund of the amount with interest and with
any charge over the property for its recovery? If so, the
trial Courts decree and judgment respectively are liable to
be set aside and if so to what extent and with what
observations?

3.    Whether there are any grounds to permit respectively
the copy of the Agreement of Development dated
03.12.1998 to be marked as Exhibit by receiving as
additional evidence on behalf of plaintiffs/appellants
respectively and if so with what observations?

4.     To what result in both the appeals respectively?

POINTS 1 to3:
         12. As per the averments of the respective two plaints Sri
D.B.Narayana, no other than the husband of Smt.D.L.Kanthamma and  
father of D.2 to D.7/R.2 to R.7, was the owner of the premises bearing
No.1-9-628/3 forming part of S.No.59 situated at Zamisthanpur
consisting of plot No.85 admeasuring 990 sq.yards which he purchased
under registered sale deed (D.No.286), dated 20th Aradabhist, for fasili
1358 from one Mir Ahmed Ali S/o Late Nawab Mir Asab Ali and later said
D.B.Narayana, constructed a residential house therein and that reached
to dilapidated stage. While so, said D.B.Narayana breathed last and his
wife Smt. D.L.Kanthamma claimed succeeded the property and during  
her lifetime she applied to the MCH for sanction of construction of
building therein consisting of cellar for parking, ground floor for shops,
first floor for banks and three more floors upto 4th floor for residential
purpose and the MCH approved and sanctioned the plan dated
03.02.1998 covered by Ex.B.1. It was while so, there was a Development
Agreement with the D.1-Developer by Smt.D.L.Kanthamma who was    
authorized by D.2 to D.7 to demolish the old building and to construct
the multi-storeyed building proposed under the approved plan in the
premises. The said Development Agreement, though not specifically
exhibited, covered by part of the pleadings and evidence as the very
written statement of D.5 adopted by D.2 to D.4, D.6 and D.7
respectively they admitted the same, however, by saying pursuant to the
Development Agreement dated 03.12.1998, D.1-Developer was  
permitted to enter into agreement of sale with respect to the built up
area which fallen to his share and D.1-Developer raised framed structure
of cellar, ground, and four floors as per the MCH sanctioned plan dated
03.02.1998 vide No.77/91/98(Ex.B.1) and however D.1-Developer failed
to complete the work having abandoned the same at that stage with no
further progress and thus he surrendered entire built up area at that
stage which comes to his share under the Development Agreement and  
also the balance sale consideration amount received from purchasers,
vide MOU dated 15.09.2004 with D.2 to D.7 however, in saying the
alleged sale consideration between the plaintiff and D.1 not mentioned
in the MOU dated 15.09.2004 in disputing the suit sale agreement
equally of the plaint averments of any tripartite  agreement between
the D.1-Developer and respective plaintiffs and D.L.Kanthamma(Mother
of D.2 to D.7) dated 20.10.2000 which is the suit sale agreement
respectively. It is the suit claim that the D.1-Developer, having
constructed, building as per the Municipal approved plan pursuant to the
Development Agreement supra, cellar, ground and four floors in part
entered into tripartite agreements with the respective plaintiffs along
with Smt. D.L.Kanthamma for the office space with the plaintiff-
T.P.Rama Rao, in O.S.No.1689 of 2003 of the office space bearing
No.106 in First floor Flat measuring 1000 sq.feet of super plinth area
together with undivided share of land of 25 sq.yards for consideration of
Rs.5,50,000/- and also with the plaintiff in O.S.No.1690 of 2003 by name
T.Krishna Murthy for the office space bearing No.105 in first floor
admeasuring 1050sq.feet of super plinth area together with the
undivided share of land of 25sq.yards for consideration of Rs.6,20,250/-
and with undertaking to join Smt.D.L.Kanthamma and her sons also for
execution of the sale deeds and for registration in favour of the two
respective plaintiffs and the D.1-Developer has to complete the
constructions on or before 31.03.2001 and execute sale deed and deliver
possession of the respective flats on receiving balance sale
consideration, however having received entire sale consideration but for
Rs.10,000/- in one month, D.1-Developer has been postponing for
execution of the sale deeds and to deliver possession.  Plaintiffs
demanded many a time by legal notices, dated 10.06.2002, 18.07.2002
and 01.08.2002, however, the D.1-Developer, having failed to execute
the sale deeds in favour of the respective plaintiffs but for given
possession to some of the purchasers, was postponing which made the
plaintiffs ultimately to issue final notice dated 25.08.2002 demanding to
hand over possession of the plaint schedule property respectively and
even for that D.1 failed to hand over possession of the suit property and
execute registered sale deed respectively failed to perform his part of
contract having received amounts pursuant to the two sale agreements
executed in favour of the respective two plaintiffs, which made the two
plaintiffs respectively to file the two suits for specific performance of
the respective two contracts for sale or in the alternative for refund of
the respective sale considerations paid under the agreements, together
interest  at 18%p.a. and for costs.
       
         13. It is necessary to mention that the D.1 filed written statement
by admitting that the property originally belong to the parents of the
D.2 to D.7 by names Sri D.L.Narayana and Smt. D.L.Kanthamma and  
after death of Sri D.L.Narayana, said Smt.D.L.Kanthamma applied for
MCH approved plan to construct the cellar, ground and 4 floors and
having obtained the approved plan entered Development Agreement
with the D.1 for construction of the said multi-storeyed building
proposed under the Development Agreement dated 03.12.1998 and he  
invested huge amounts in construction of the multi-storeyed building and
in the course of construction, several changes and modifications were
made even at the instance of the D.2 to 7 and the D.1 was allotted the
portions of the property entitled by D.2 to D.7 towards their share
(owners share) and D.1 was authorized and empowered to enter into
sale transactions for his share as such the D.1-Developer is entitled to
enter agreements for sale with prospective purchasers and accordingly
entered into various sale agreements having received advance of sale
consideration as per the agreement for sale and from out of the share of
the D.1-Developer, entered into two sale agreements, dated 20.10.2000
with the respective two plaintiffs, to sell office space bearing No.106
admeasuring 1000sq.feet on the first floor with TPR Rao(plaintiff in
O.S.No.1689 of 2003) for total consideration of Rs.5,50,000/- and  for
office space bearing No.105 of first floor admeasuring 1050sq.ft of super
plinth area together with undivided share of land of 25 sq.yards for
total consideration of Rs.6,20,250/- to T.Krishna Murthy(plaintiff in
O.S.No.1690 of 2003); however, the D.2 to D.7 having knowledge about
the agreements and receiving of advance sale consideration, started
harassing the D.1 in one or the other way and it is their non-cooperation
with D.1 due to which he could not execute the sale deeds, however in
saying the D.1 in his own right entered the sale agreements with
respective two plaintiffs of the two suits while denying receiving of
entire sale consideration and entitlement of the specific performance of
the contract for sale respectively with the contest that he received from
the two respective plaintiffs each Rs.40,000/- on the date of the
respective two sale  agreements and the respective plaintiffs each paid
Rs.1,00,000/- by way of cheque on 15.12.2000 and failed to pay the
balance consideration and they are postponing in collusion with the D.2
to D.7 to defeat the interest of the D.1 by alleging as if the plaintiffs
paid entire sale consideration to the D.1 under the agreements. He
contended however, that he has no objections to execute registered sale
deeds in favour of the two respective plaintiffs by saying D.2 to D.7 are
also bound by said agreements for sale in favour of the respective
plaintiffs to execute  registered sale deed with no right of refusal or
avoidance.
        14. It is from respective pleadings including the written statement
further contest of D.2 to D.7 of they are not aware of sale agreements
and alleged payments and it is the plaintiff and the D.1 respectively to
have wrongful gain without knowledge of the D.2 to D.7, brought into
existence the sale agreements and the payments as if made for which
there is no consent of D.2 to D.7 or their mother in her lifetime and
there is no office space in the first floor bearing Nos.105 and 106 of the
suit property in existence and the claim is imaginary and D.1 has no right
to deal with the property and if at all any liability to the respective
plaintiffs it is the D.1 who has to refund the amounts received from the
plaintiffs and nothing beyond and D.L.Kanthamma is not a party to the
respective sale agreements entered by the D.1 with the respective two
plaintiffs and sought for dismissal of the two suit claims.

       15. It is pursuant to which from the respective pleadings and on
hearing, the trial Court in each of the two suits framed the following
issues:-
O.S.No.1689 of 2003:
1. Whether the plaintiff paid entire sale consideration to the D.1
under the agreement and entitled for the relief of specific
performance of contract to execute the registered sale deed in
respect of the suit schedule property and delivery of possession of
the same?

2. Whether the plaintiff is entitled for alternative relief of recovery
of Rs.5,50,000/- with interest?

3. To what relief?

O.S.No.1690 of 2003:
1. Whether the plaintiff paid entire sale consideration to the D.1
under the agreement and entitled for the relief of specific
performance of contract to execute the registered sale deed in
respect of the suit schedule property and delivery of possession of
the same?

2. Whether the plaintiff is entitled for alternative relief of recovery
of Rs.6,20,250/- with interest?

3. To what relief?

          16. In answering the above issues and during the course of trial in
O.S.No.1689 of 2003 (CCCA No.111 of 2009) on behalf of the plaintiff,
the plaintiff T.Pattabi Rama Rao was examined as P.W.1 and placed
reliance upon Exs. A.1 to A.14 viz. Agreement of Sale, dated 20.10.2000,
letter addressed by the plaintiff to D.1, dated 10.06.2002,
representations of plaintiff to D.1 dated 08.07.2002, copy of legal notice
issued by the plaintiff to D.1, dated 27.08.2002 with postal receipt,
acknowledgment of D.1, dated 31.08.2012, GPA executed by plaintiff,
letter issued by the S.B.I. for the payments made by the plaintiffs to
defendants, statement of account issued by the SBI, receipt,
acknowledgments and original bank passbook. On behalf of the
defendants 2 to 7, D.5 D.Venkat Narayana Rao was examined as D.W.1  
and certified copy of MCH sanctioned plan dated 03.02.1998 was
exhibited as Ex.B.1. It is referred about the development agreement to
be marked as filed. Similarly in O.S.No.1690 of 2003(CCCA No.112 of
2009) the plaintiff TKR was examined as P.W.1 and placed reliance upon
Exs.A.1 to A.14 viz; agreement of sale, dated 20.10.2000, letter of
plaintiff to D.1 dated 10.06.2002, postal receipt, acknowledgment dated
15.06.2002, letter of plaintiff to D.1, dated 08.07.2002 with
acknowledgment of D.1, representation of Plaintiff to D.1, dated
18.07.2002 with acknowledgment of D.1, dated 23.07.2002, another
representation of plaintiff to D.1, dated 01.08.2002 with  postal receipt,
office copy of notice of plaintiff to D.1 dated 27.08.2002 with postal
receipt and acknowledgment dated 31.08.2002 and original bank
passbook.  On behalf of the defendants 2 to 7, D.5 D.Venkata Narayana
Rao, was examined as D.W.1 but no documents were exhibited.  It is
from said evidence of the separate trial of both suits and after hearing
covered by the separate judgments on even date by the trial Court, both
the suits were decreed in part against only D.1 as referred supra.
         17. a) So far as the O.S.1689 of 2003, it was observed by the trial
Court that the pleadings and the evidence on behalf of the plaintiff, do
not disclose the readiness and willingness to perform his part of contract
to get the sale deed from D.1 within the time stipulated under the sale
agreement (Ex.A.1) and a perusal of schedule of payments show the
plaintiff paid in all of Rs.5,50,000/- in the year 2000 and alternative
relief is sought for refund of the amount and even the letters of plaintiff
covered by Ex.A.2, 5 and 7 of the year 2002 also to that effect, that in
Baddam Pratap Reddy Vs. Chennadi Jalapathi Reddy , it was held that
in a suit for specific performance, the plaintiff has to comply the
requirements of Section 16 of S.R.Act, and also Form Nos. 47/48 of
appendix-A of CPC and the averments should be proved. In the present
suit, P.W.1 in his cross-examination admits for refund of amounts as his
flat was not completed and he has not verified whether his plot was
completed or not till date which falsifies the pleadings of readiness and
willingness to say could not establish the same for entitlement to the
main relief and the Advocate-Commissioner appointed filed his report
after inspection saying the construction was not completed and for the
premises bearing No.1-9-628/3 on three sides boundaries are not tallied
for no numbers given, there is nothing to show by any documentary
evidence of D.2 to D.7 got knowledge about the Ex.A.1 sale agreement
and even D.L.Kanthamma was shown as one of the vendors in the
agreement, there is no signature of her as admitted by the P.W.1 and
the letters of demands addressed by the respective plaintiffs except
legal notice to all the defendants, were alone to D.1 and thereby not
entitled to the main relief of specific performance of the contract for
sale against the D.1 but for refund of the amount shown paid of
Rs.5,40,000/- by date of Ex.A.2 notice wherein there is demand for
refund, that in the cross-examination of P.W.1 what he claimed of
Rs.5,00,000/- paid other than Rs.40,000/- on 20.10.2000 (date of sale
agreement), for that not produced any documentary evidence that too,
when D.1 in his written statement  and in the cross-examination of
P.W.1 suggested of only Rs.40,000/- paid that amount alone is entitled
to be refunded in partly decreeing for the alternative relief while
rejecting the main relief that too, only against the D.1 for Rs.40,000/-
with interest.
         17(b). Coming to the O.S.No.1690/2003 from the evidence on
record supra and after hearing, the trial Court in answering issues
observed that even the plaintiff claims having received sale
consideration entirely, the D.1 did not execute sale deed; the D.1
denied the same and burden is on the plaintiff and Ex.A.2 letter of
plaintiff to D.1 mentions payment made totally of Rs.6,20,250/- in
demanding to refund the same by 31.07.2002 and there is no mention in
Ex.A.2 dated 10.06.2002 of readiness and willingness to obtain sale deed
having paid entire consideration, so also by subsequent letters dated
08.07.2002 and 18.07.2002 in asking to refund, but for under Ex.A.9
dated 01.08.2002 in demanding to hand over possession of the plot and
in the legal notice Ex.A.11 dated 27.08.2002 to execute sale deed and
deliver possession.  It is after lapse of 1 year from the agreement from
the pleadings and evidence though what he paid of Rs.6,20,000/- in the
year 2000 from the letters addressed to refund the amount and from the
expression in B. Pratap Reddy supra of plaintiff has to comply the
requirements of Section 16 of S.R.Act and Form Nos. 47/48 appendixA
and the averments should be proved and once asked for refund there is
no such compliance of always ready and willing to perform to get
register sale deed from D.1 and in the cross-examination of D.2 to 7,
P.W.1 also admitted about giving notice for refund to say compliance of
Section 16 of the S.R.Act, is not made out, and the Advocate
Commissioner visited the property and submitted report saying
construction was not completed and three sides boundaries not tallied
for no particulars given for the premises bearing No.1-9-628/3 and
plaintiff failed to produce any documentary evidence of D.2 to D.7 got
knowledge about the sale agreement and even D.L.Kanthamma was  
referred as one of the executants along with D.1 she did not sign the
Ex.A.1 agreement, and but for the legal notice issued to all the
defendants, the letters addressed were only to D.1, thereby the plaintiff
is not entitled to the relief of specific performance of the contract of
sale but for alternative relief of refund of Rs.6,20,000/- claimed
however from the evidence on record by dated 08.09.2000 date of
Ex.A.1 sale agreement,  paid Rs.40,000/- by cheque bearing No.446071,
Rs.30,000/- by cheque bearing No.690421 dated 18.09.2000, Rs.50,000/-
by cheque bearing No.690422 dated 18.09.2000, Rs.4,00,000/- by
cheque bearing No.648631, dated 03.10.2000 Rs.30,000/- by cheque
bearing No.690423 dated 02.10.2000 and  Rs.1,00,000/- by cheque
bearing No.648637 dated 14.02.2000 drwan on State Bank of Hyderabad.
On the other hand, D.1 in his written statement contested as if
Rs.40,000/- only paid from the payments, what all the plaintiff could
prove is Rs.5,00,000/- and not of Rs.6,20,000/- as claimed.  Thereby,
plaintiff is entitled to refund only from D.1 for the alternative relief of
Rs.5,00,0000/- with interest by refusing main relief against all and even
the alternative relief against D.2 to D.7.
           18. Before discussing the facts further, it is important to discuss
in relation to the contract for sale and entitlement to the main or
alternative relief, as the case may be, and the requirements of ready
and willing to perform his part of contract and plaintiff has to succeed
on strength of own case and has to come to the Court with clean hands
for the equitable relief and on duty of the appellate Court in
appreciation of evidence, which is as follows:-
         18(i). Under Order 41 Rule 33 CPC, it is the duty of the appellate
Court to consider the entire material on record for re-appreciation of
the same on facts and law and come to an independent conclusion even
to support the decision of the trial court and in particular if to differ,
where it is unsustainable including on any finding and to what extent. It
is apt to refer the legal position on the specific performance of the
contract for sale that plaintiff has to win or lose his case on own
strength with pleading of ready and willing to perform his part of
contract and it is not only readiness but also willingness to aver that is
required to be established not only by plea but also by evidence right
from entering into the contract for sale till the suit filed and even
thereafter till delivery of judgment.  Further Court has to consider the
hardship and also increase in the land values by taking judicial notice
more particularly of the urbanized properties in grant or refusal of the
main relief for specific performance, leave about alternative relief for
refund of amount without prayer cannot be granted.
        18(ii). It is the well-settled proposition of law in general
appreciation of all civil cases, (though not in a suit for specific
performance) from S.B. Noronal V. Prem Kundi  that, pleadings are not
statutes and legalism is not verbatim. Common sense should not be kept
in cold storage, when pleadings are construed. In Ram Sarup Gupta Vs.
Bishur Narain Inter College  referring to the constitution Bench
expression in Bhagwati Prasad V.Chandramaul  Sheodhari Rai V.
Suraj Prasad Singh  and Trojan & Company V. R M N N Nagappa  
Chettiar  it was held that the pleadings should receive a liberal and not
pedantic approach as meant to ascertain the substance and not form. In
Bachhaj Nahar V. Nilima Mandal  at para No.12, it was held in a suit
for injunction based on easementary right, that object and purpose of
pleadings and issues is to ensure that litigants come to trial on clearly
defined issues to prevent cases being expanded on grounds being shifted
during trial.  Though generally no plea, no evidence can be looked into
and for no issue no finding can be given; it is not always the static
principle from the fact that even a plea not made specifically from
deficiency in pleadings, but if covered by implication and evidence let
in and parties know the case, it can be looked into and even to give
finding no issue framed is of no bar to formulate a point and decide.
Burden of proof in such matters, pales significance as what is necessary
is party shall aware of the plea and let in evidence for the Court to give
finding from the hearing covering the lis but not outside the scope.  It
was also held therein that even alternative remedy not pleaded if
entitled, Court can grant it where it is appropriate to do so, like where
there is no legal bar.  In Balasankar Vs. Charity Commissioner,
Gujarat  at para-19-it was held that, burden of proof pales significance
when both parties adduced evidence and it is the duty of the court to
appreciate the entire evidence adduced by both sides in deciding the
lis. Further the party proved in possession of best evidence is bound to
produce the same to throw light on the lis and to unfold any truth and
thereby cannot take shelter on the abstract doctrine of burden of proof
saying burden not on him to prove by filing the same, as laid down in
NIC vs. Jugal Kishore , and in Lakhan Sao Vs. Dharam Chowdhary .
      18(iii). It was also laid down regarding appreciation of evidence
in some of the expressions vividly that, appreciation of evidence is no
doubt from experience and knowledge of human affairs depending upon
facts and circumstances of each case and regard had to the credibility
of the witness, probative value of the documents, lapse of time if any
in proof of the events and occurrence for drawing inferences, from
consistency to the material on record to draw wherever required
necessary inferences and conclusions from the broad probabilities and
preponderance and from the over all view of entire case to judge as to
any fact is proved or not proved or disproved.  In this context in
Vidhyadhar V. Manikrao  it was held where defendants alleged sale
deed executed by another defendant in favour of plaintiff was fictitious
and bogus but not supported the plea by entering into witness box on
oath and having avoided for no reason and plaintiffs case when proved
in the suit for possession held such a contention of defendant with no
proof can be rejected also by drawing inference from not entering
witness box for no reason.  The principle therein is where it warrants
Court can draw adverse inference, no doubt depends on facts and
circumstances as part of appreciation of evidence as to any fact is
proved or not proved or disproved.  Further, as part of appreciation, in
Janaki Vashdeo Bhojwani V. Indusind Bank Ltd.  on the scope of
power of attorney competence to depose in the place of principal held
though it empowers to act on behalf of principal, confines only to the
acts done by the power of attorney holder in exercise of the power of
attorney and would not include to depose in place and instead of
principal in respect of such acts done by the principal and not by power
of attorney holder and principal can have a personal knowledge over
and in respect of which, in appreciation of deposition of such power of
attorney holder with reference to facts and his acts in contra
distinction to acts of principal within his personal knowledge which
power of attorney cannot depose and same proposition is later relied
upon in several subsequent expressions including M/s.Shankar Finance
& Investments V. State of A.P , Mankaur V. Hartar Singh Sangha .
        18(iv). Coming to suit for specific performance of the contract
for sale, it was held by the Apex Court in Jugraj Singh Vs. Lab Singh
and later even in Fakheer Chand Vs. Sudesh Kumar , that the
compliance with readiness and willingness has to be in spirit and
substance and not from mere pleadings and the continuous readiness
and willingness that to be established has to be seen from the conduct
of the plaintiff throughout not only from the pleadings but also from
the evidence on facts and circumstances of the case on hand.  It was
held therein that from raising prices after agreement and delay in
seeking relief by plaintiff is attributable to him are no doubt the
grounds to deny equitable relief for specific performance but for to
suitably compensate the plaintiff.  Fakheer Chand supra relied upon
Kanshi Ram Vs. Om Prakash .  Also in  Aniglace Vs. Ram Latha , it
was held that the basic principles behind Section 16 of the S.R.Act to
consider for person seeking relief are that the plaintiff must manifest
that his conduct has been blemishless throughout.  No doubt mere
pleading about the plaintiffs ready and willingness is not sufficient to
show that he prepared to perform his part of contract as laid down in
1999 (2) L.S.(A.P) 186. In Gomibai V. Uma Rastogi  it was held at para
No.80 of merely because agreement of sale is proved, it is not necessary
to pass decree for specific performance being a discretionary relief to
exercise judiciously by referring to Jugraj Singh and Vidhyadhar among
other expressions supra.  In Motilal Jain V. Ramdasi Devi , it was held
on sufficiency of pleading to comply Section 16(c) of the Act that the
averment as to readiness and willingness in plaint is sufficient if the
plaint on reading as a whole clearly indicates that plaintiff was always
and is still ready and willing to fulfill his part of the obligation as such
averment is not a mathematical formula.  On facts held plaintiff paid
not only 2/3rds of the consideration but also sent three notices after
the agreement expressing readiness and willingness to say same is
apparent therefrom, since delay in filing the suit arisen from third
parties acquiring rights in the subject matter of the suit.  It referred
forms 47 and 48 of I schedule of C.P.C that were relied in R.C.
Chandiok V. Chunnilal  and a subsequent three Judge bench
expression in Sayyed Dastagir V. T.R.Gopalakrishna Shetty .  In the
subsequent expression of the apex Court in Ramesh Rameshwar Prasad  
V. Basutilal , it was held that where plaint contained statement of
readiness and willingness, rejection of plaint on that ground or
dismissal of appeal as if pleaded of not ready and willing wont sustain.
In Church of Christ Charitable Trust and Educational Charitable
Society, rep. by its Chairman V. Ponniamman Educational Trust rep.
by its Chairperson  it was held from para 10 to 14 referring to Forms
47 and 48 of Appendix-A of C.P.C and Order VII Rule 11 C.P.C. that it is
mandatory for the plaintiff to seek the relief to aver all material facts
and in the suit for specific performance not only show cause of action
but also the date of agreement and same not barred by time and if
there is no pleading of readiness and willingness, plaint is even liable to
be rejected.  It also discussed further that a power of attorney unless
coupled with interest saved by Section 202 of the Contract Act, is
revocable referring to Suraj Lamp and Industries Pvt. Ltd. V. State of
Haryana  and in further saying from Para No.6 of the relief for
specific performance is a discretionary one under Section 20 of the Act
as also held referring to the first decision of 1937 Madras in Sirigineedi
Subbarayudu among others in Mohammadia Cooperative Building  
Society Ltd. V. Lakshmi Srinivasa Cooperative Building Society Ltd.
In Silvey V. Arun Varghese  it was held referring to Sections 16(c) and
20 of the Act in para Nos.8 to 14 also referring to Lourdu Mari David V.
Louis Chinnaya Arogiaswamy  that the conduct of the defendant in
specific performance suit of plaintiff cannot even be ignored, while
weighing the question of exercise of discretion for decreeing specific
performance or not.  In Nandkishore Lalbhai Mehta V. New Era
Fabrics  that even in a suit for specific performance, pleading is a
pleading which does not construe as evidence but that is required to be
let in.  In Aniglase Yohannan V. Ramlatha  it was held that indication
in the plaint that plaintiffs conduct had been blemishless throughout is
entitling him to seek for specific performance.  Where the essential
facts contained in the plaint let to an inference of plaintiffs readiness
and willingness, same can be construed as compliance of Section 16(c)
of the Act and for that referred Motilal Jain supra among other
expressions.  In Bal Krishna V. Bhagwan Das  it was held that it is
mandatory for the plaintiff to plead readiness and willingness to
perform the contract while seeking specific performance, which no
doubt depends on judicial discretion to satisfy from facts and
circumstances to grant or not of the equitable relief and any unfair
advantage to plaintiff and where it involves hardship to defendant also
sought in the factors for consideration in exercise of the judicial
discretion and referred Motilal Jain supra and Umabhai V. Nilkant D
Chawan  of conduct of parties as per settled law necessary to
appreciate to arrive at a finding whether plaintiff is all along and still
ready and willing to perform his part of the contract as is mandatorily
required under Section 16(c) of the Act to determine not from bare
averment in the plaint or statement or in examination in chief but from
entire facts and attending circumstances in the evidence brought on
record with reference to pleadings.  No doubt, as held in Azhar
Sulthana V. D.Rajamani  it is not necessary that entire amount of
consideration payable should be kept ready by plaintiff but for able to
secure in support of plea of readiness and willingness.  On facts held
plaintiff failed to establish readiness and willingness all along to
perform her part of contract and it would be unnecessary then to go
into bonafides of the defendants, where plaintiff could not prove his
case by preponderance of probabilities. In J.P.Builders V. A.Ramdas
Rao  on the test to determine readiness and willingness, it is held that
there cannot be a straight jacket formula but for to determine from
entirety of facts and circumstances relevant showing intention and
conduct of plaintiff as a condition precedent for grant of relief with
plea and proof and in the absence of such plea plaint is liable to be
rejected and even pleaded for absence of such proof not entitled to the
relief and also referred Chandiok supra among other expressions. In
P.DSouza V. Shondrilo Nadi  it was held referring to Nirmala
Anand  that agreement providing liquidated damages be attracted only
where defendant commits breach of terms of the contract for plaintiff
in the option to invoke and that no way bars entitlement or not to
reside specific performance and escalation of prices no doubt not a sole
ground to grant or refuse but for one of the factors with reference to it
of unforeseen situation and hardship to the defendant etc., in refusing
the relief.  In N.P.Thirugnanam V. R.Jaganmohana Rao  it was held
referring to Section 16(c) and 20 of the Act of continuous readiness and
willingness on the part of the plaintiff to plead and prove the condition
precedents to consider for grant of the relief for specific performance
and for that availability of consideration amounts conduct of plaintiff
and attending circumstances with reference to plea of readiness and
willingness always be looked into from evidence also and on facts held
failed to make out and a case for disentitlement to the relief of specific
performance.  The Apex Court in K.S.Vydyanadhan V. Vairavan  held
that though time stipulated in the agreement even not made essence of
the contract, it must not lose significance and attention of the Court.
It was held that, it is high time to consider the time stipulated has
some meaning, not for nothing, could such time limit would have been
prescribed; the Court should bear in mind in deciding what is the time
stipulated and what are the steps to be taken by the one or the other
party and what was the part performance done pursuant to it.  The
stipulations in the agreement should be read in combination with
subsequent events and conduct of the parties including in deciding as to
really the party is ready and willing in granting or refusing the relief
and for entitlement or not of the relief from otherwise.  On facts, it
was held total inaction of the plaintiff seeking specific performance
relief, for 2  years in violation of the agreement stipulating time limit
though not essence of the contract, it would be inequitable to give
relief of specific performance to such purchaser and to that conclusion
referred the constitution bench expression in Chandrani V.
Kamalrani  and with reference to it of time essence of the contract is
not with any presumption.  However, the Court may infer that it is to
be performed in a reasonable time from the terms of the contract,
nature of the property and surrounding circumstances relevant including
the time limit specified in the agreement and from conduct of parties
besides urban properties prices have been going up shortly over the last
few decades particularly after 1973 in taking notice of the same as a
relevant circumstance.
        18(v). Thus, it is the settled law from above expressions placed
reliance by one or other of both sides that in a suit for specific
performance, plaintiff has to win or lose his case on his own strength
and not on the weak case of the defendant and in seeking the equitable
relief, he has to come with clean hands to do equity, thereby court has
to look into the case of the plaintiff first and if able to show from his
very case entitlement, then to consider the defence, if at all still
disentitled, even to exercise the discretion only there from no doubt
conduct of the parties and any false plea of the parties can also be
weighed against in arriving to grant or not relief, where even from
plaintiffs making out the case.  It is further to say that, the limitation
prescribed of three years or the suit claim made within that time itself
does not entitle to the equitable relief.  It is because, mean time there
is possibility of value of lands go up made change and even may several
other factors inference.  Besides that the increase in prices and the
hardship of the defendants is also the weighing factors even though
plaintiff otherwise entitled to the relief to refuse the judicial
discretionary relief.
         19. From the above propositions coming to further scope of law on
facts in relation of pleadings and proof, it is also necessary to mention
scope of Order VIII Rules 3 to 5 of C.P.C. and Section 58 of the Evidence
Act and also Section 55(6) of the T.P.Act, which reads as follows:-
R.3. Denial to be specific.

It shall not be sufficient for a defendant in his written statement to deny
generally the grounds
alleged by the plaintiff, but the defendant must deal specifically with each
allegation of fact of
which he does not admit the truth, except damages.

R.4. Evasive denial.

Where a defendant denies an allegation of fact in the plaint, he must not do so
evasively, but
answer the point of substance. Thus, if it is alleged that he received a certain
sum of money, it
shall not be sufficient to deny that he received that particular amount, but he
must deny that
he received that sum or any part thereof, or else set out how much he received.
And if an
allegation is made with diverse circumstances, it shall not be sufficient to
deny it along with
those circumstances.

R.5. Specific denial.

[(1)] Every allegation of fact in the plaint, if not denied specifically or by
necessary implication,
or stated to be not admitted in the pleading of the defendant, shall be taken to
be admitted
except as against a person under disability :

Provided that the Court may in it discretion require any fact so admitted to be
proved
otherwise than by such admission.

[(2) Where the defendant has not filed a pleading, it shall be lawful for the
Court to pronounce
judgment on the basis of the facts contained in the plaint, except as against a
person under a
disability, but the Court may, in its discretion, require any such fact to be
proved.

(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-
rule (2), the
Court shall have due regard to the fact whether the defendant could have, or
has, engaged a
pleader.

(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn
up in
accordance with such judgment and such decree shall bear the date on which the
judgment
was pronounced.



 Section 58 of the Indian Evidence Act:

            Facts admitted need not be proved. No fact need to be proved in any
proceeding
which the parties thereto or their agents agree to admit at the hearing, or
which, before
the hearing, they agree to admit by any writing under their hands, or which by
any rule of
pleading in force at the time they are deemed to have admitted by their
pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be
proved
otherwise than by such admissions.

 Section 55(6) in The Transfer of Property Act, 1882
(6) The buyer is entitled

(a) where the ownership of the property has passed to him, to the benefit of any
improvement in, or increase in value of, the property, and to the rents and
profits thereof;

(b) unless he has improperly declined to accept delivery of the property, to a
charge on
the property, as against the seller and all persons claiming under him, 2[* * *]
to the
extent of the sellers interest in the property, for the amount of any purchase-
money
properly paid by the buyer in anticipation of the delivery and for interest on
such amount;
and, when he properly declines to accept the delivery, also for the earnest (if
any) and for
the costs (if any) awarded to him of a suit to compel specific performance of
the contract
or to obtain a decree for its rescission.

An omission to make such disclosures as are mentioned in this section, paragraph
(1),
clause (a), and paragraph (5), clause (a), is fraudulent.

         20. From the above facts and law, coming to decide the
controversy of the appeal lis from the pleadings, proof, provisions and
the propositions of law on the scope of the S.R.Act, the written
statement of D.1 as referred supra is while admitting execution of the
sale agreement by saying the plaintiff if not entitled to the specific
performance unless ready and willing to pay entire balance
consideration and perform his obligation and that paid only part
payment and failed to pay the entire amount.  Whereas, the written
statement of D.2 to D.7 who adopted the written statement of
D.5(D.W.1) speaks that all the property belongs to their father who died
leaving behind him themselves and their mother D.L.Kanthamma, who
all succeeded and their mother applied for municipal permission from
MCH and obtained permission No.77/91 of 1998, dated 03.02.1998 and
they entered into Development Agreement with D.1 on 03.12.1998 for
construction of multi-storeyed building as per MCH sanctioned plan and
D.1 also was permitted by them to enter into agreements for sale with
respect to the plinth area which has given to the share of D.1 under the
Development Agreement.
         21. Once these facts are clear from the pleadings, the same
tantamounts to admission under Section 58 r/w Sections 17 to 23 of the
Indian Evidence Act and the admitted facts need not be proved so also
from the scope of Order VIII Rules 3 to 5 of CPC with reference to Order
XVIII Rules 3 of CPC and Sections 101 to 103 of the Indian Evidence Act.
The very pleading of the defendants is clear that pursuant to the
Development Agreement dated 03.12.1998, there a multi-storeyed
building to be constructed in their property by D.1-Developer as per the
M.C.H. approved plan, dated 03.02.1998, which is exhibited by D.5 as
D.W.1 in O.S.No.1689 of 2003.  The Development Agreement is definitely
with them and D.5 as D.W.1 also referred the same as filed to exhibit for
who are the custodians of the Development Agreement is the crux to the
lis.  They when withheld the same from exhibiting, even referred in
evidence and what is the scope of the Development Agreement they
have categorically stated in the written statements referred supra,  once
such is the case, non-filing of the Development Agreement leads to
adverse interference against them for they have no right of withholding
irrespective of no burden on them  if at all for such a contest is not
available from the Constitution Bench expressions of the Apex Court in
Gopalakrishnaji ketkar Vs Mahammad Haji Lathief . The non-filing of
the Development Agreement even referred in the evidence affidavit as
filed to exhibit as Ex.B.1 and only the approved MCH plan filed and the
GHMC plan marked in O.S.No.1689 of 2003 as Ex.B.1 equally to file those
at least a copy of it in O.S.No.1690 of 2003, that also gives adverse
inference against them from non-filing of the Development Agreement
with them being the material document. Once such is the case,
therefrom and also from the pleading admissions of as per the approved
municipal plan covered by Ex.B.1, it is the admitted document to read in
both the suit claims from the legal position supra and as per which
according to that D.1 entered the Development Agreement with them on
03.12.1998 and same not seen the light of the day for their non-
production and withholding, even in the evidence of D.W.1(D.5) in chief
examination itself in both the suits what he deposed was the sale deed
No.286, dated 20th Aradabhist (1358 fasili) 1948 AD obtained over the
extent of 990 sq.yards as plot No.85 in Sy.No.59 bearing D.No.1-9-628/3
part of which covered by both the suit schedules under the sale
agreement and the same is covered by Development Agreement, that  
sale deed was obtained from Mir Ahmed Ali, in the name of his mother
D.L.Kanthamma.  It is suffice to say the property was not purchased in
the name of their father but in the name of their mother. In the absence
of showing benami, it is to say their mothers property. It is also suffice
to say it is their mother that obtained Ex.B.1 municipal approved plan
referred supra dated 03.02.1998 of MCH approved plan No.77/91 of 1998
and the Development Agreement they entered or their mother entered,
it is as per the written statement they entered or if not at least they got
knowledge of entering by their mother with D.1, was dated 03.12.1998,
as their father died on 03.11.1983 itself and not alive by the time of
Ex.B.1 approved plan was obtained by their mother as owner pursuant to
the sale in her favour, what he deposed in further chief-examination as
D.W.1 is their mother entered the Development Agreement with D.1
dated 31.02.1998. Even that is the case since their mother is admitted
as owner of the property from the chief examination, it is she that
obtained the approved plan as owner and that it is she that entered into
the Development Agreement with D.1 and it is their written statement
plea of they got knowledge about the same for nothing to their surprise
of the said Development Agreement dated 31.02.1998 to construct by
D.1-Developer in that property pursuant to the approved plan Ex.B.1
multi-storeyed building. It is also as referred supra pleaded by them that
as per the Development Agreement the builder is entitled to enter into
contract for sale so far as his share of the property under the
Development Agreement concerned with prospective buyers pursuant to
which and according to them the builder constructed cellar, ground and
four floors but failed to complete further work like finishing and
completion but for structures raised as a frame.  In this background
coming to the further chief-examination of D.W.1(D.5) pursuant to the
written statement of him adopted by others, from their mother
admittedly died on 29.01.2010 intestate, that D.1 did not make further
completion by left the work of the construction of what constructed was
unfinished after raising the skeleton upto roofs of the floors and even
insisted to complete the left over work, the D.1-Developer expressed his
inability saying due to his financial incapacity. It was in saying so, they
entered into memorandum of undertaking with D.1-Developer dated
15.09.2004. The two sale agreements by D.1 in favour of the respective
two plaintiffs marked as Ex.A.1 in the two suits not even disputed by the
D.2 to 7 in their written statement about their genuineness but for
saying simply got no knowledge that too, when written statement of D.1
already filed, were dated 20.10.2000. At the cost of repetition what
they stated in their written statement is there is no tripartite agreement
covered by the sale agreements along with D.1 and plaintiff respectively
for the sale agreements entered as their mother was not a party. P.W.1
in the cross-examination, no doubt admitted that, Smt. D.L.Kanthamma
was not a signatory but for party to the sole agreements for the
undertaking of D.1 to cause execute and register sale deed also by
joining them. There is no difficulty to that as very written statement of
D.2 to D.7 categorically speaks that after the Development Agreement
between the D.1 and their mother D.L.Kanthamma dated 03.12.1998 to
their knowledge, D.1 was permitted to enter into contract for sale with
respect to the built up area to which he is entitled to towards his share,
with third party-prospective purchasers. Once such is the case, before
their entering into the MOU dated 15.09.2014 with D.1 to surrender the
entire build up area including giving up his existing right if not as on that
date as to did he enter into any sale agreement with any third party
prior to the MOU dated 15.09.2004 as by virtue of the Development
Agreement dated 03.12.1998 to what the share as a Developer in the
Development Agreement, he is entitled that is by D.1-Developer to third
parties that what they clearly pleaded in their written statement i.e. of
D.5(D.W.1) adopted by all others and the admitted pleading need not be
proved and the same is when not explained away, the admission is
binding.  Once there is admittedly the Development Agreement of 1998,
they could have been made a bona fide enquiry in this regard and their
entering with D.1 of MOU dated 15.09.2004 that no way takes away the
existing rights of third parties who are bona fide prospective vendees as
bona fide purchasers and suffice to say the said agreements even
D.L.Kanthamma was not a party though alive by the date of the
agreements dated 20.10.2000 for not a signatory for the name referred
of her is binding on the said D.L. Kanthamma and equally of D.2 to D.7
from their written statement plea of the Development Agreement
enables the builder to enter into sale transactions with 3rd parties to
that extent of the share of the builder to bind the owners even. In this
background, coming to the cross-examination of D.W.1, what all he
stated is that the MOU dated 15.09.2004 between the D.1 and D.2 to D.7
inter se no way referred the sale agreements in favour of the two
respective plaintiffs in the list of purchasers. That MOU is not even seen
the light of the day at least to demonstrate to that effect by its filing.
In the absence of which, a stray oral sentence no way helpful much less
to discharge their burden much less to avoid their liability pursuant to
the Ex.A.1 respective two agreements of sale in favour of the two
plaintiffs, entered by the D.1-Developer equally binding on them and it
is out of the Developers share pursuant to the admitted existing
Development Agreement dated 03.12.1998 executed. It is not their case
of the original Development Agreement dated 03.12.1998 is not with
them so also of subsequent MOU dated 15.09.2004 and no filing leads
adverse inference against them as discussed supra.  It is there that has
to explain though these are the two material documents the burden lies
on them without any right to withhold as held in the three judge Bench
expression of the apex Court in Khetkar supra.
           22.  Having regard to the above, their contest of D.1 has no right
to deal with the property or it might be a collusive outcome between
the D.1 and plaintiff respectively subsequent to the MOU dated
15.09.2004 is unsustainable, as they could not show any of the material
to say the Ex.A.1 two agreements in both the suits dated 20.10.2003 are
subsequent to MOU dated 15.08.2004, or the sale agreements as
collusive and not supported by consideration. In the absence of which,
they being bound by the Ex.A.1 sale agreements, dated 20.01.2000, the
MOU dated 15.08.2004 can at best be called collusive one and even
genuine that no way thereby defeat the rights of the respective
plaintiffs and the binding nature of the same on the property to enforce
against D.1 including against D.2 to D.7 though not personally for the
property in their hands is liable being succeeded the property of their
mother D.L.Kanthamma as her legal heirs to account for the suit reliefs
from the property in their hands that is binding to satisfy the suit claim
of the plaintiff from entitlement to the main relief or the alternative
relief, as the case may be, in the respective two suits for specific
performance of the contract or for refund of the amount, as the case
may be. It is in this context to say prima facie there are payments made
reflected from the bank account even prior to the MOU there are
exchange of legal notices between the plaintiff and D.1 respectively
referring to the sale agreements which are even long prior to the MOU
dated 15.09.2004 to say the MOU no way takes away any existing right of
the respective plaintiff against the D.1 and also on the estate of the
owner who is the mother of D.2 to D.7 in the hands of D.2 to D.7 as they
succeed in so far as the share of the D.1 as developer therein to that
extent to make them liable to recover the refund of the amount if not
for the main relief of specific performance with charge on the property
if at all to grant though not they are personally liable but for to say that
cannot under the guise of the MOU, dated 15.09.2004 be given go by to
the third party rights created under the Development Agreement dated
03.12.1998 in before the MOU entered cancelling the Development
Agreement.
        23. From the discussion supra, coming to further facts even the
Advocate Commissioners report speaks he could not identify for door
numbers of the flats and boundaries not mentioned. Once the plan
covered by Ex.B.1 and the Development Agreement and the subsequent  
MOU cancelling Development Agreement no way different much less  
demonstrate from any evidence of defendants of the sale agreement
Ex.A.1 covered two items of the property of the two suits are not part of
it, in the absence of which and its showing as forming part of it more
particularly in Ex.B.1 marked in one case that demonstrates the trial
Court, it can clearly be said went wrong in saying the Commissioners
report is no way helpful but for to say construction was left unfinished,
instead of concluding from the record it demonstrates the respective
two sale agreements property is part of the property covered by Ex.B.1
plan and the Development Agreement as discussed supra.  The non-filing
of the Development Agreement of 1998 and the non-filing of MOU, the
subsequent cancellation of the Development Agreement, dated
15.09.2004 as discussed supra from above also leads to adverse
inference to the defence of the defendants that was not properly
appreciated by the trial Court in appreciating of whom the burden lies
and how a party in possession of the property, based on evidence has no
right to withhold but for to produce before the Court so as to arrive
truth by the Court apart from their pleading not in dispute about the
property description no way part of the Ex.B.1 plan and Development
Agreement property, that too when categorically pleaded in the written
statement of D.1-Developer is entitled for his share of property under
construction to enter into contract for sale pursuant to the Development
Agreement of 03.12.1998 which is admitted as per the approved plan
dated 03.02.1998 which is the plan obtained by their mother for which
their mother is the owner of the property as per the evidence, though
parties claimed initially of it is that of their father, it is clarified by the
chief examination of D.5(D.W.1) of the property stands in the name of
their mother is suffice so to hold as discussed supra. It is because what
the proof required is not only from positive evidence of plaintiff but also
from the admissions in the pleadings and evidence of defendants to rely
by plaintiff.  It is also because appreciation of evidence is not only from
the evidence covered by respective deposition but also with reference to
surrounding facts and circumstances to draw inference as the whole
process of the pleadings and the controversies is to find out and the
evidence itself adduced to the extent of controversies resolved
therefrom is as part of voyage by the process of trial to arrive the truth
which is the quest and appreciation of evidence is thereby to arrive
where truth lies from the overall evidence irrespective of who let in
what evidence.  As once evidence is brought before the Court, it is
helpful for giving appreciation either in favour or against any of the
contesting parties, that too when burden of proof pales of significance
when both the parties are on the issue from leading of evidence.  Apart
from even no issues specifically found once covered by plea it is
immaterial, as the whole process is to arrive a truth and the conclusion
from the judgment as a final process is to find out where truth lies with
reference to which to decide rights or liabilities and obligations of the
parties.
        24. In fact it is important to say in the cross-examination of
D.5(D.W.1) by plaintiff particularly in O.S.No.1690 of 2003 equally in the
other suit on 05.01.2009 it is brought on record that as per the
Development Agreement dated 03.12.1998 between D.L.Kanthamma,    
mother of the D.2 to D.7 and the D.1-the Developer out of cellar, ground
and 4 floors the share of the D.L.Kanthamma,  represented by their sons
D.2 to D.7 is for 6 cars and 6 scooters parking in the cellar and 6 mulgies
in the ground floor, entire second floor and entire 3rd and part of 4th
floor and remaining is that of the D.1-Developer.  Once such is the case,
the flats of the plaintiffs respectively covered by the two suits are in
first floor viz; flat Nos. 105 and 106 with undivided part of 25 sq.yards
site respectively for the built up area of 1000 sq.ft. in one case and
1050sq.ft in another case respective sq.ft. of built up area besides of
common area.  It is not the case of the defendant either in the written
statement or in the evidence of D.W.1 of first floor by any exchange falls
to them before entering into the sale agreements by D.1 with respective
two plaintiffs covered by Ex.A.1 in two suits dated 20.10.2000. It is
admitted that some of the prospective vendees filed before the some
District Consumer Forums claims against the D.2 to D.7 and D.1 and the
State Commission directed to execute sale deeds in favour of the said
claimants for their respective sale agreement portions. It is subsequently
suggested to D.W.1 that in the list supplied by D.1 while entering the
MOU dated 15.05.2004, it is also referred the two plaintiffs respective
agreements extents. Though the D.W.1 is denying the same, he failed to
produce despite the specific suggestion of plaintiff to demonstrate the
said MOU dated 15.09.2004, that is the reason why as concluded supra,
the non-filing of which leads adverse inference from the withholding,
that too, despite the specific suggestion that too having been in custody
of the document to the extent to draw the inference that had it been
produced, it could reflect the names of the plaintiffs covered by the
suits sale agreement extents in the MOU to bind them. It is therefrom
suggested by the respective plaintiffs to D.W.1 that the defendants all
are also liable to execute sale deeds pursuant to the two sale
agreements in favour of the two plaintiffs in both the suits covered by
Ex.A.1 agreements respectively.  In fact, in the further cross-
examination, D.W.1 stated that after the MOU for saying the plaintiffs
extents not mentioned in the list given by D.1, they did not initiate any
action against the D.1 by police complaint or the like even after they
came to know about the two sale agreements transactions between the
plaintiffs and D.1.  It is suggested that entire sale consideration received
by the D.1 under the two respective agreements from the respective
plaintiffs, for which D.W.1 answered as not aware and not even denial of
the agreements though in the further cross-examination disown their
liability also to submit specific performance by execution of sale deeds
of the suit relief as claimed to bind them along with D.1.  A perusal of
the Ex.A.1 sale agreements clearly show the respective extents in the
first floor (super plinth area) of 1050 sq.ft. as plot 105 and 1000sq.ft. as
plot No.106 respectively with undivided land of 25sq.yards of the multi-
storeyed building under construction. It is referred as building
constructed under the land forming part of the premises of the land
bearing D.No.1-9-628/3 in the boundary descriptions besides the road,
corridor and other appurtenant door numbers of the first floor given
with open space to say the description is clear to the understanding with
all clarity with no any ambiguity even in the commission report so to
say, leave about the Commissioners report is with no value to say
contra from what is discussed supra.  It is important in this context to
further say that the respective two sale agreements were dated
20.10.2010. The sale agreement terms also speak that D.L. Kanthamma  
is one of the parties, no doubt there is no signature of her, but for the
signature of D.1-Developer as vendor No.2 as duly authorized. It is
because written statement of D.2 to D.7 that is of D.5 adopted by them
as referred supra is very clear of as per the Development Agreement
dated 03.12.1998, D.1-Developer is entitled to sell out of his share of
the flats to 3rd parties to bind the parties to the Development Agreement
and what are the properties fallen to D.1 and what are the properties
fallen to them as legal representatives of their mothers property under
the Development Agreement is categorically deposed in the cross-
examination of D.W.1, that also discussed supra that the two sale
agreement extents of the first floor therefore proved fallen to the share
of D.1 and from the written statement plea, D.1-Developer is entitled to
enter contract for sale with third parties to bind not only D.1-Developer
but also for execution of sale deeds by the other party to the
Development Agreement that is owner of the premises Smt.
D.L.Kanthamma, no other than the late mother of D.2 to D.7 as she died
in 2001 after the said Development Agreement of October, 2000 to bind
them as succeeded to the estate to submit the suit reliefs either for
specific performance or for the alternative relief. The estate of
Kanthamma representing by them, though not but for if Kanthamma
alive to make her personally liable, since the estate in their hands is
made liable that is the property covered by the Development Agreement
and once such is the case even there is any cancellation of Development
Agreement inter se that no way takes away the third parties rights in
between accrued including that of the two plaintiffs under the two sale
agreements dated 20.10.2000 in execution of the agreement by D.1 also
representing Smt.D.L.Kanthamma as duly authorized in his signing on
behalf of both of them pursuant to the Development Agreement terms
supra.  It is to say even for specific performance, the D.2 to D.7 cannot
avoid that is also why even in the Consumer State Commission
prospective vendee claims for specific performance is ordered in
directing all to execute sale deeds for the agreements entered by the
D.1-Developer with the prospective vendees to bind D.2 to D.7 also.
          25. From this background, in the agreements when there is
reference of Rs.40,000/- part payment respectively out of the sale
consideration and the subsequent installments for balance of sale
consideration fixed time and also for execution of sale deeds after
31.03.2001 for the payments in between. From this background from the
legal position already discussed supra as to entitlement of the equitable
relief of the specific performance of contract for sale by the receptive
two plaintiffs that is negated by the trial Court and its correctness
concerned, though under Section 16 of the S.R.Act what is required is
the plea of readiness and willingness, both the components, for very
maintainability of the suit that is there and so far as proof concerned
from the law, right from date of agreement till date of decree plaintiff
who seeks for specific performance of the contract for sale supposed to
show always ready and willing to perform his part of the contract.  Even
the suit has to be filed whether on notice of refusal with no lapse of
time and not at the fag end of limitation contemplated by Article 54 of
the Indian Limitation Act, 1963.  The law is very clearly from the several
of the expressions referred supra as to Court has to consider various
factors including the hardship on other side and increase in the value of
property by taking judicial notice that too in case of urbanate property
like the present one, from the delay in seeking performance.  Apart from
it, it is not the mere plea but also the proof of always ready and willing
to perform, that is required Exs.A.1 to A.14 and Ex.B.1 in O.S.No.1689 of
2003 of which the Ex.A.1 and Ex.B.1 already discussed supra, at the cost
of repetition the sale agreement was dated 20.10.2000 and at the cost
of repetition as per the terms of the sale agreement the payments
stipulated for balance excluding Rs.40,000/- paid as advance out of the
sale consideration amount of Rs.5,50,000/- for the flat No. 106 of first
floor 1000 sq.feet with undivided share of land of 25 sq.yards, that to be
paid in three instalments, 1st instalment of Rs.2,50,000/- on or before
dated 20.11.2000(within one month from 20.10.2000 date of Ex.A.1 sale
agreement), 2nd instalment of Rs.1,50,000/- on or before dated
20.01.2001(within two months) and the 3rd instalment of Rs.1,10,000/-
on or before dated 31.03.2001(within three months) and to obtain sale
deed therefrom.
          26. Coming to the payments and readiness and willingness, the
Ex.A.2 letter of plaintiff to D.1-Developer dated 10.06.2002(in both the
suits)  showing the details of advance payment made by him totally in
asking to refund the amount paid entirely of Rs.5,50,000/- by
31.07.2002.  The contents of the letter of plaintiff TPR addressed to D.1
sent by registered post speaks that in relation to the flat No.106 at DLB
Arcade,H.No.1-9-628/3,Vidyanagar,Hyderabad for refund of amounts
pursuant to the sale agreement, dated 20.10.2000 for 1000 sq.feet super
plinth area of the first floor with undivided share in the land
admeasuring 25sq.yards in the building constructed on land forming part
of the premises. As per the terms of the agreement, advance payment of
Rs.5,40,000/- and from the meeting held at owners residence in the new
building premises on 12.05.2002 and at the residence of the vendee TPR,
Bagh Amberpet on 14.05.2002 and on 09.06.2002 from the advance  
payments made so far viz; before the agreement dated 20.10.2000, on
12.09.2000 through SBI cheque No.690415 of Rs.40,000/-, on 04.10.2000
through SBI cheque No.493026 of Rs.2,00,000/-, on the even date of
agreement on 21.10.2000 through SBH, cheque No.648634 of  
Rs.2,00,000/- and later on 14.12.2000 through SBH cheque No.648636 of
Rs.1,00,000/- since total of Rs.5,40,000/- out of Rs.5,50,000/- paid and
on 12.05.2002 D.1-Developer and the authorized representative of the
owner i.e. D.N.Rao (D.5) among others explained reasons for not
progressing with construction of the building/flats as per the agreed
schedule of completion and handing over of flats before 31.12.2000 from
the unexpected problems cropped up consequent to the demise of the
owner Smt.D.L.Kanthamma in completing the registration for the
undivided share of land admeasuring of 25sq.yards of land and thereupon
his authorized representative Sri TKR observed that the present suits is a
sheer violation of the agreement terms dated 20.10.2000 executed by
the D.1-Developer and the owner and for the uncertainty of the period
in resolving the disputes between the owner and the D.1-Developer and
keeping the pressing need of requirement to urgently seek alternative in
view, for no alternative but to speak option of withdrawal from the
agreement subject to refund of Rs.5,40,000/- already paid as referred
supra together with interest at 18%p.a. immediately and copy is marked
to D.5 D. Narayana Rao, owner of D.L.B. Arcade.  Once the same is the
case, there is an indication even of the letter Ex.A.2 dated 10.06.2002
and knowledge of D.2 to 7 along with D.1 of the amount of Rs.5,40,000/-
paid by the plaintiff to D.1 under the agreement (Ex.A.1) so far to be
refunded with interest at 18%p.a. as alternative to withdraw from the
agreement to enforce specific performance.  It clearly speaks but for
Rs.10,000/- entire sale consideration out of Rs.5,50,000/- is paid before
December, 2000 pursuant to the agreement dated 20.10.2000 even the
stipulation under the agreement to pay is by 31.03.2001. It is suffice to
say the plaintiff paid the amounts in advance pursuant to the agreement
and what he claims alternatively is from the problems between the D.1-
Developer and owners (D.2 to D.7) and uncertainty in completion by D.1-
Developer and to hand over to the plaintiff his premises under the
agreement and for execution of sale deed, as an alternative to refund
with interest at 18%p.a. of the amount paid of Rs.5,40,000/- to
withdraw from the sale agreement transaction. It was not complied, as
can be seen, D.1 in his pleading suppressed the same so also D.5.  Once
they got notice of it how they subsequently could enter into MOU dated
15.09.2004 much less to say they are ignorant of the sale transaction
covered by Ex.A.1 with plaintiff TPR who is represented through the
other plaintiff in O.S.No.1690 of 2003 by name TKR as referred supra in
Ex.A.2. Even subsequently under Ex.A.3 another notice issued by the
plaintiff in O.S.No.1689 of 2003 dated 08.07.2002 through TKR-P.W.1 in
another suit as an authorized representative of plaintiff TPR in referring
to the meeting and Ex.A.2 letter saying there is no positive response to
the amount to be refunded with interest as agreed, despite Ex.A.2
notice. Hence to indicate the steps for refund along with interest supra
before 31.07.2002, failing which, plaintiff is constrained to initiate legal
recourse. The notice is given to D.1-Developer and copy marked to D.5.
Another notice Ex.A.4 to D.1-Developer referring to Exs.A.3, A.2 and
Ex.A.1 in relation to the refund saying despite two letters and cut off
date of 31.07.2002, for no arrangements made to refund the amount of
Rs.5,40,000/- with interest at 18% p.a. that comes to Rs.1,72,346.50
paise as on 31.07.2002 total of Rs.7,12,346.50 paise to be refunded,
once again advising to honestly comply with the obligation and settle the
same.  Ex.A.5 is another letter dated 01.08.2002 to D.1 by marked copy
to D.5 referring to Exs. A.1 to A.4 supra saying despite cut off date
31.07.2002 as stipulated, committed default in refunding the amount as
well as withdrawing the earlier offer for refund of advance and necessity
for handing over all the flats as per the Ex.A.1 agreement dated
20.10.2000 on or before 18.08.2002 without prejudice to other remedies
and rights. D.5 written statement adopted by others off D.2 to D.7 and
D.5 deposed as D.W.1 on behalf of all and thus the notice issued to D.5
is clear of D.2 to D.7 got knowledge of the notice contents and later
collusively setup MOU, that not ever seen light of the day. Ex.A.6 is
ultimate legal notice to D.1 dated 27.08.2002 by reiterating all the facts
about the advance paid and to refund with interest, failed to comply
that tantamounts to the offence of cheating liable for legal recourse for
the same, apart from directing the handing over possession of the flat as
else to take criminal action and civil recourse. Ex.A.8 is the registered
postal acknowledgment of D.1, Ex.A.9 General power of attorney
executed by the P.W.1 TPR in favour of TKR, his brother and plaintiff in
another suit O.S.No.1690 of 2003 to lay claim civil and criminal recourse
authorizing him. Ex.A.10 is an important document in support of Exs.A.1
to A.8 supra and it clearly speaks from the S.B.I. account of plaintiff
that as per the cheque referred supra in Exs.A.2 to A.8 bearing cheque
No.648634 for Rs.2,00,000/- encashed by D.1 on 21.10.2000 and another
cheque bearing No.648636 dated 14.12.2000 for Rs.1,00,000/- encashed
by D.1 on 03.10.2000. Ex.A.10 payments and payment of 4,00,000/-
reference to the suit claim in O.S.No.1689 of 2003 of TPR and pursuant
to Ex.A.2 legal notice, it substantiates regarding payment reflected in
Ex.A.10. There are no replies given by any of the defendants either D.5
on behalf of the D.2 to D.7 representing for any of the Ex.A.2 to A.5
letters, leave about A.6 notice and A.8 acknowledgment of D.1. The trial
Court totally ignored these important aspects and went wrong in
directing payment of Rs.40,000/- only and as if there is no other
payment proof filed. In fact, this Ex.A.10 not only reflects the two
payments covered by the cheques encahsed by the D.1 referred in
Exs.A.2 to A.6 but also the plaintiff in other suit TKR, brother of TPR
paid Rs.4,00,000/- and Rs.1,00,000/- by two cheques bearing Nos.
648631 dated 03.10.2000 of Rs.4,00,000/- and 648637 dated 14.12.2000
of Rs.1,00,000/-, out of the payments either in the name of D.1-
Developer or his entitys name Sadguru Constructions of D.1 and D.1
cannot dispute for he did not even come to witness box much less with
oath against oath against the plaintiffs said evidence to rebut said proof,
even burden shifts and there is nothing even to disprove the
documentary evidence for not a case of D.5 of these notices not served
on him by any specific plea much less not with any specific suggestion
even from P.W.1s  cross-examination. It is apart Ex.A.10 speaks said
Ex.A.10 items covered of Rs.3,00,000/- and add paid of the suit claim of
TPR of Rs.3,00,000/- under the two cheques reflected in Ex.A.11 and
also Rs.4,00,000/- and Rs.1,00,000/-=Rs.5,00,000/- referred in Ex.A.10
reflected from Ex.A.11 of appeal suit claim in CCCA No.112 of 2009 of Sri
TKM-the plaintiff from the account when they are the two brothers and
the payments made from the account of TKR on behalf of both covered
by the two agreements and that is the notice issued and even from the
settlement letters issued demanding to refund that was not refunded.  It
is unknown how the trial Court was justified in ignoring the above
documentary evidence without proper appreciation, even in saying
though justified to that extent of from the waiver of the main relief for
specific performance pursuant to the letters Exs. A.2 to A.4, leave about
A.5 and A.6, asked for refund of amount with interest and not with
demand for specific performance. As the main endeavour from the
letters reflected served on D.5 and D.1 is for refund with interest, of the
amounts claimed paid since proved as referred supra, the trial Court
could not here ignored, without even drawing of necessary adverse
inference for non-giving of reply. It is for the reason, though non-giving
of reply does not amount to admission of contents of the notice, adverse
inference can be drawn to the extent that but for truth they could not
have been kept quiet with no reply as no  ordinary prudent person would
keep quiet without reply by denying the averments but for truth as laid
down in Chapala Hanumaiah Vs. Kavuri Venkateshwarlu  and also the
three Judge Bench expression in N.Rangappa Vs. Mohan  in para 15 in
discussing the reverse onus clause burden lies and adding strength to the
same from non-giving of reply to draw adverse inference for had there
been any truth, it could have been replied by denial as the only
inference from any prudent conduct of a human being to deny by giving
reply but for truth is to draw.
         27.  Exs.A.12 and A.14 are the postal receipt and acknowledgment
of original bank passbook of T.Krishnamurthy. In this back ground coming
to the cross-examination of P.W.1 by defendants, though D.1 did not
cross-examine since entitled to the benefit from the cross-examination
done by the D.2 to D.7, the P.W.1 TPR, is the brother of the plaintiff
TKR in other suit O.S.No.1690 of 2003. He, in his chief examination,
specifically mentioned the total sale consideration of Rs.5,50,000/- and
how Rs.5,40,000/- paid by 4 cheques including one for Rs.40,000/-
referred in the sale agreement and the other three of two reflected by
Exs. A.10 and A.11 supra also from Ex.A.14 and the one for Rs.2,00,000/-
dated 04.10.2000 cheque bearing No.493026 drawn on S.B.I. and that is
reflected from Exs.A.2 to A.6 referred supra and the circumstances of
the meeting to address a letter and why withdrawn in demanding to
deliver possession that is what is discussed supra from contents of
Exs.A.2 to A.6. In the cross-examination, learned counsel for D.2 to 7
having taken time from 29.09.2006/17.11.2006 to 13.3.2008 for failure
to do the cross-examination in between including on 17.04.2007 and
P.W.1 as reflected in the certified copy of deposition, on closure
permitted for recall as per the order in I.A.No.80 of 2008 dated
24.04.2008 and P.W.1 was cross-examined only on 01.05.2008, where he  
deposed that he verified the Development Agreement dated 03.12.1998
between the D.1 and Smt D.L.Kanthamma-the owner and therefrom  
entered the agreement Ex.A.1 for the commercial flat and in the Ex.A.1
agreement D.L.Kanthamma referred as first vendor however she did not
sign, but for D.1 as second vendor as authorized signatory thereby there
is no earmarked column for signature of first vendor and on the question
whether he informed Smt D.L.Kanthamma about Ex.A.1 agreement, he  
categorically deposed that he informed to the sons of late
D.L.Kanthamma about the Ex.A.1 agreement and also sent Ex.A.2 notice  
not only to D.1-Developer but also to D.5 on behalf of D.2 to D.7 though
he stated that he did not file any proof about the service of notice, in
denying the suggestion of no such notice sent.  He himself categorically
stated as copy of the notice sent to D.5, though he could not file any
proof regarding service of the notice covered by Exs.A.3,A.4 and A.5 also
to any of the legal representatives of D.L.Kanthamma. He also deposed
that Ex.A.6 legal notice got sent to legal heirs of D.L.Kanthamma i.e.
D.6 and denied the suggestion of no such notice sent or Ex.A.7 receipt is
not pertaining to Ex.A.6.  In fact, the trial Court reflecting the service of
the proof regarding Ex.A.6 notice sent to one among D.2 to D.7 by the
plaintiff under Ex.A.7 in saying but for that there is no proof of sending
the letters Exs.A.2 to A.5.  In fact, Ex.A.2 contents clearly speak the
sittings with the owners and also the D.1-Developer pursuant to the
Ex.A.1 agreement, from the talks to take refund of the amount paid with
interest at 18% p.a. the contents of the notice not even disputed in the
cross-examination of P.W.1 by the defendants dated 01.05.2008.  It is
brought on record in the cross-examination that as per the Development
Agreement dated 03.12.1998, there was an obligation to execute
registered sale deed by the D.2 to D.7 on behalf of the D.L.Kanthamma
as owners, in favour of the vendees of the D.1-Developer, subject to
completion of the built up area allotted to the owners under the
agreement. That agreement not seen the light of the day as discussed
supra by clearly speaks Development Agreement is available with D. 2 to
7 who withheld from its filing in Court.  He deposed that the facts
mentioned in Ex.A.2 are aware and as the construction not completed by
D.1, thereby in asking for refund under Ex.A.1. Once the same is brought
on record, the contents of A.2 are substantiating from the cross-
examination of P.W.1 by the defendants without denying the contents as
to the payments made by the plaintiff and also the meetings with the
owners and the dispute between the D.1-Developer and owners and the
understanding to refund with interest to plaintiff in asking to refund as
agreed from the sitting with the owners and the D.1-Developer at the
premises of the owners apart from at the premises of the plaintiff.  The
trial Court totally ignoring the same in appreciation though this is one of
the vital aspects suffice to show knowledge of D.2 to D.7 of the
agreement which is prior to the MOU from the contents of Ex.A.2 notice
that are substantiated by the cross-examination supra of plaintiff by
defendants. P.W.1 deposed that he does not know about MOU between  
the D.1 and D.2 to D.7 dated 15.09.2004 and any of the built up area
surrendered by the D.1-Developer to the owners and denied the
suggestion of Ex.A.1 is not binding on the D. 2 to 7 for not parties to
Ex.A.1. Once they or their mother through whom they are claiming are
parties to the Development Agreement dated 03.12.1998 and once the
same is reflected in the written statement as referred supra of the
Development Agreement authorized the D.1-Developer to alienate his
share of the properties (flats) to the 3rd party vendees for the owners
also to join and execute the sale deeds, that is enough and defendants
cannot deny much less to say Ex.A.1 sale agreement is not binding, much
less even not referred in the MOU dated 15.09.2004 much less same is
nothing but collusive outcome from the very say with reference to the
contents of Ex.A.2 deposed in the cross-examination of P.W.1 by not
disputing the same, even by any suggestion; leave about Exs.A.3 to A.6,
reiterating the same, so also the amount due and payable from the
understanding to refund by all. The contention of open space bearing
No.106 is not in existence as per the sanctioned plan is untenable
without even filing the Development Agreement, dated 3.12.1998, and
also the cancellation agreement, dated 15.09.2004, as to what flats as
to what space left further without completion since already constructed
structure undisputedly.  The trial Court thereby should have even taken
the waiver of the right by plaintiff under Exs.A.2 to A.4 of enforcement
for specific performance in asking for refund while ordering for refund of
Rs.5,40,000/- with interest at 18%p.a. as claimed in Ex.A.2 notice
content of which and not even in dispute in the cross-examination of
P.W.1 as discussed supra.
         28.  In so far as O.S.No.1690 of 2003 is concerned among the
Exs.A.1 to A.4 and the evidence of P.W.1 TKR, D.W.1(D.5) Sri
D.Narayana pursuant to Ex.A.1 sale agreement, the terms and contents
and executants as referred supra since in detail discussed in O.S.No.1689
of 2003 in the previous paras no way requires repetition but for the
other documents of which Ex.A.2 is similar, to Ex.A.2 letter on
O.S.No.1689 of 2003 dated 10.06.2002, in O.S.No.1690 of 2003 with self-
same terms and contents in asking to refund the amount of
Rs.6,20,000/- so far paid interest at 18% p.a. It is necessary to refer the
contents of Ex.A.2 letter addressed to D.1-Developer by marked copy to
D.5/D.6 D.Narayana Rao, by plaintiff Sri TKR in relation to office space
bearing No.105 of DOB Arcade 1050sq.ft. in the first floor of the (super
plinth) area with undivided share in the land of 25 sq.yards with the
building constructed on the land forming part of the items 1-9-628/3 of
Zamisthanpur for Rs.6,20,000/- and after several discussions on the
subject handing over of the plot very significantly meetings held at the
owners residence (D.2 to D.7) at the above referred new building on
12.05.2002 at the residence of the plaintiff at Bagh Amberpet on
14.05.2002 again on 09.06.2002 from the detailed of advance payments
made of Rs.6,20,000/- viz; Rs.40,000/- under cheque No.446071 dated
8.9.2000 referred in the sale agreement Ex.A.1 dated 20.01.2000, other
payments of Rs.30,000/- and Rs.20,000/- under two cheques bearing
Nos. 690421 and 22 of later even date 18.09.2000 drawn on S.B.I.,
Rs.4,00,000/-by cheque bearing No.648631 dated 03.10.2000 and
Rs.1,00,000/- by cheque No.648637 dated 14.12.2000 drawn on SBH they  
reflected in Ex.A.10 and Ex.A.11 of O.S.No.1689 of 2009 discussed supra
also with reference to Ex.A.14 passbook which are the self-same
documents also filed herein and marked said Ex.A.14 self-same
document as Ex.A.14 herein showing all the other payments covered by
the transactions from the account of T.Krushmamrthy (brother of TPR,
besides cheque No.690423 of Rs.30,000/- dated 03.10.2000 drawn on
SBI. The Ex.A.2 correlated to Ex.A.14 besides Ex.A.10 and A.11 of
O.S.No.1689 of 2003 reflected the Rs.4,00,000/- and Rs.1,00,000/-
herein of the suit and Rs.2,00,000/- and Rs.1,00,000/- of the suit
transactions in O.S.No.1689 of 2003 as discussed supra, the Ex.A.2
referred cheque of Rs.40,000/- dated 08.09.2000 i.e. reflected in the
sale agreement as advance received undisputedly, coming to  other
payment out of Rs.6,20,000/- including Rs.4,00,000/- and Rs.1,00,000/-
supra also reflected under Exs.A.10 and A.11 of the other suit exhibited
documents from the account copy of bank letter discussed supra, the
cheque No.690421 for Rs.30,000/- and 690422 of Rs.20,000/- on
18.09.2000 are reflected from Ex.A.14 bank passbook in this suit
O.S.No.1690 of 2003 at last but one page of the transactions in the last
two lines with cheque numbers and as encashed and even the cheque
No.690423 dated 03.10.2000 for Rs.30,000/- also reflected in the list as
transaction No.2 as encashed.  Thus correlation of Ex.A.2 with Ex.A.14
and with reference to Ex.A.10 and Ex.A.11 of O.S.No.1689 of 2003
clearly proves the payment of Rs.5,40,000/- by TPR plaintiff in
O.S.No.1689 of 2003 and the another payment of Rs.6,20,000/- by
plaintiff  T.Krishnam Murthy in O.S.No.1690 of 2003 and the trial Court
did not properly advert to it. Apart from the above, Ex.A.2 letter further
contents speak for the reasons of not progressing the construction and at
the meeting dated 12.05.2002 with D.1 and D.5/D.6 D.Narayana Rao on
behalf of the owners D.2 to D.7 among other matters explained as the
flat as per the agreed schedule to be completed by 31.12.2000 and from
the unexpected problems cropped up in after demise of the Smt.
D.L.Kanthamma (mother of D.2 to D.7) in completing the registration for
undivided share of the land to an extent of 25sq.yards in the building
constructed in favour of the plaintiff and from the owners of the
property D.2 to D.7 for allotment of the office space bearing No.105
already agreed to be sold to the plaintiff among the other flats to few
others and from the present status is sheer violation of the sale
agreement dated 20.11.2000 executed by the D.1-Developer and the
owner but mindful of the time already spent and the investment already
made on the venture and from the uncertainty of the period involved in
resolving the issue between the owner and the D.1-Developer and
keeping the pressing need to urgently seek an alternative view and
having no other alternative, cause to seek option of withdrawal from the
sale agreement subject to the refund of Rs.6,20,000/- with interest at
18% p.a. as per the rate stipulated in the Ex.A.1 agreement for the
delayed payments and at the meeting held later on 09.06.2002
reiterated the obligation and responsibility to refund of what was
undertaken in the earlier meetings supra, including in subsequent
meetings of 15th and 16th June, 2002, to settle the dues to refund the
amount by 31.07.2002. It is similar to Ex.A.2 of O.S.No.1689 of 2003
discussed supra. Ex.A.3 is the postal receipt of the notice sent to
D.5/D.6 in EX.A.4 and Ex.A.5 another letter dated 08.09.2002 similar to
the contents of Ex.A.3 to A.5 representations of plaintiff in O.S.No.1689
of 2003, Ex.A.6 is acknowledgment of D.1 to Ex.A.5 letter, Ex.A.7
representation of plaintiff again dated 18.07.2002 and acknowledgment
of D.1 to it dated 23.07.2002 is Ex.A.8; another representation of
plaintiff dated 01.08.2002, is covered by Ex.A.10 postal receipt to
D.5/D.6 dated Ex.A.11 office copy of legal notice, dated 27.08.2002,
with postal receipt of D.5/D.6, acknowledgment of D.1 similar to Ex.A.6
to EX.A.8 in O.S.No.1689 of 2003, leave about Ex.A.14 herein is the
original bank passbook as referred supra.
         29. In this regard coming to the cross-examination of P.W.1 in
O.S.No.1690 of 2003 equally on 01.05.2008 though chiefexamination
taken on 31.01.2005, the cross-examination of P.W.1 in O.S.No.1690 of
2003 went on several sitting on 20.11.2006, 22.11.2006, again by recall
from the docket order dated 17.04.2007 treated no further cross-
examination for the counsel for the D.2 to D.7 did not turn up to do
cross-examination, on 13.03.2008 and on 01.05.2008 as per the orders in
the petition I.A.No.79 of 2008 recall allowed and further cross-
examined. A reading of the same shows from the cross-examination,
P.W.1 deposed that at the time of execution of Ex.A.1 sale agreement,
dated 20.10.2000 he personally met Smt. D.L.Kanthamma and by then  
the building was under construction and not completed and under the
agreement he agreed to purchase the commercial space in first floor
bearing No.105 for a consideration of Rs.6,20,000/- and paid advance
Rs.40,000/-  the date of agreement and another sum of Rs.4,80,000/-
paid by then, apart from Rs.40,000/- and the D.1-Developer promised to
hand over possession and postponing and meantime Smt.  
D.L.Kanthamma expired and even by 12.05.2002, the property agreed to
be sold was semi-constructed and even before filing of the suit he
addressed letters including to D.6 besides D.1. It is suggested that he
opted for cancellation of the agreement subject to refund of the amount
with interest at 18% p.a.  He further deposed that he also requested the
owners of the property D.2 to D.7 to arrange the refund of the amount
along with the interest. He denied the suggestion of the payments from
18.09.2000 to 14.01.2000 stated in Ex.A.11 are not true. In fact, the
Ex.A.11 is the legal notice. He denied the suggestion of entries reflected
in Ex.A.14 did not pertain to the payments made to D.1. He deposed
that he does not know the subsequent agreement between the D.1 and
other defendants from the inter se disputes between them and that is
the reason the sale deed could not be executed by them.  He denied the
suggestion of balance sale consideration not paid and thereby sale deed
could not be executed or he is not entitled to the suit reliefs. The P.W.1
is also cross-examined by the D.2 to 7 as referred supra by cause
admitting, plaintiff also requested the D.2 to D.7 to arrange  the refund
of said amount of Rs.6,20,000/- with interest at 18%p.a.  when such is
the case, it is unknown how they can pretend  lack of knowledge of the
transactions even they were demanded by plaintiff before giving of the
legal notice and that too Ex.A.2 contents not even in dispute by them
but for a stray suggestion of but for Rs.40,000/- referred in Ex.A.1 other
payments not made, even the record clearly speaks the payments made  
to D.1 and proved and then the burden is on the defendants particularly
D.1 who did not even come to witness box, much less cross-examined
P.W.1 disputing the same about the amounts received.  Once the
respective plaintiffs could prove and the onus shifts on the defendants
and they could not discharge,  the trial Court could not ignore these
aspects proved for the entitlement to refund that too when the
agreement itself speaks, for delayed payments interest at 18% p.a. is
payable.  In the further cross-examination of P.W.1 by the defendants
dated 01.05.2008 on recall, it is brought on record that the plaintiff
verified the Development Agreement between the D.L.Kanthamma and  
D.1-Developer dated 03.05.1998 before entering into the Ex.A.1
agreement for the commercial building of open space of 105 of first floor
as D.L.Kanthamma as original owner and except the Development  
Agreement he did not verify any other documents and he does not know
whether there was any power of attorney executed by D.L.Kanthamma  
to D.1-Developer. It is also deposed that D.L.Kanthamma did not sign
and the plaintiff also did not sign and there is no column for the first
vendor D.L.Kanthamma in the Ex.A.1 to sign and he informed about the
Ex.A.1 to the sons of D.L.Kanthamma i.e. D.2 to D.7 and he sent Ex.A.2
letter to them as he sent Ex.A.2 notice to D.1 by marking copy to
D.K.Rama Rao (D.6) though there is no proof about serving of Exs. A.2 on
D.6, he denied the suggestion of Ex.A.2 copy not sent to D.6, but for
made endorsement as if sent, for no proof filed in this regard, equally
for Ex.A.6, 7 and 9 sending copies to legal heirs of D.L.Kanthamma for
no notice sent to her during lifetime of D.L.Kanthamma. He deposed
that the open space bearing No.105 was not completed by D.1-Developer
and he did not know whether D.1 not completed the other flats allotted
to the owner towards their share under the Development Agreement
dated 03.12.1998. He deposed that plot No.105 comes to the share of
the D.1-Developer and clause No.10 of the Development Agreement
speaks to execute the agreement in favour of the buyers by the D.1-
Developer, subject to completion of the build up area allotted to the
share of the owners under Development Agreement dated 03.12.1998 to
execute sale deeds and he is aware of the facts. He deposed that he
asked, for refund of amounts, the D.1-Developer as his flat was not
completed and he is not aware of the memorandum of undertaking
between D.1 to D.7 dated 15.09.2004 regarding surrender of the built up
area to the land owner by D.1. He denied the suggestion of Ex.A.1 was
not binding on D.2 to D.7 but for on D.1 and he denied that Ex.A.1 is a
created one to defeat the rights of the land owners or there is no
authority given to D.1-Developer by land owners to enter Ex.A.1
agreement or open space bearing No.105 is not in existence or he is not
entitled to enforce Ex.A.1 agreement.
          30. In fact, at the cost of repetition in the written statement of
D.5 adopted by D.2 to D.7, it is categorically deposed that pursuant to
the Development Agreement, the flats to be taken by the D.1-Developer
can be alienated by him to third party vendees for which the flat owners
also to execute sale deeds and it is also in the cross-examination by
P.W.1 in few lines above referred supra brought on record in the clause-
10 of the said Development Agreement dated 03.12.1998, the owners to
execute the sale deeds in favour of the vendees of the D.1-Developer of
the flats fell to the share of D.1-Developer, provided there is completion
of construction. Even therefrom, only to execute sale deed, the
construction to be completed and not for entering into the agreement
for sale and also same from the written statement admission supra.
When such is the case and when refund of amount by the D.1-Developer,
the entire property can be made liable, if not entitled for specific
performance from the waiver of such right by the plaintiff, by notices
from what is discussed supra, that too having paid the entire amount for
the construction not completed and there is inter se dispute between
the (D.1Developer and owners-D.2 to D.7), that no way takes away
plaintiffs rights to get refund of amounts with interest.
       31. Having regard to the above, the trial Court went wrong, while
ordering alternative relief, in saying as if what is proved the payment
made of only Rs.5,00,000/- though it clearly proved of Rs.6,20,000/-
paid already and entitled to it with 18% p.a interest pursuant to the
terms of the Ex.A.1 agreement for any late payment with such rate to
refund; for ordered at 12% p.a till date of decree and at 6%p.a. later till
realization that too only of Rs.5,00,000/- so also even D.2 to D.7  bound
to submit the reliefs with D.1 for refund of entire amount else to
recover though not personally liable being the legal representatives of
the owner their late mother to make the estate liable which what they
succeeded.  In this regard it is also necessary to mention from the latest
expression of the Apex Court in Unitech Ltd. v. Union of India  under
Sections 269-UA(2)(f)(ii) & 269-UD of the Income Tax Act 1961 that in case
of undervaluation of compulsory purchase of immovable property in case
of transfer by way of an agreement or arrangement which has the effect
of transferring or enabling enjoyment of immovable property, to evade
tax, valuation, to arrive at inference of undervaluation, has to be
proportionate to value of rights transferred. Expression transfer is
wide enough to include within its scope, agreements or arrangements
which have the effect of transferring all important rights in land for
future considerations such as part acquisition of shares in buildings to be
constructed, even though the transfer does not sale, lease exchange.
       32. Though the additional evidence application is filed to receive
copy of the Development Agreement as additional evidence to exhibit in
CCCA No.112 of 2009, the same, for the reasons better known, opposed
by the respondents 2 to 7 (D.2 to D.7) from the counter affidavit of
R.6/D.6 saying the said Development Agreement was between D.1 and  
mother of D.2 to D.7 and the Development Agreement along with the
approved plan was filed and it was not exhibited in the reference in
chief affidavit of D.W.1, and no attempt made from production of
original before asking for exhibiting copy of the Development Agreement
and thereby a copy cannot be permitted to exhibit. The separate
counter affidavit of D.4/R.4 further that the Development Agreement
apart from Development Agreement was cancelled by subsequent MOU    
between the D.1 and D.2 to D.7 dated 15.09.2004 and thereby same
cannot be marked as additional evidence by receiving.  In fact, they did
not deny additional evidence affidavit contents of   the chief-affidavit of
D.W.1(D.5) in O.S.No.1689 of 2003 referred as Ex.B.1 for marking and
thereby filed by plaintiff/appellant in C.C.C.A.M.P.643 of 2015 to
receive the copy to exhibit as additional evidence that was returned
with objection to file original Development Agreement as it is only a
Photostat copy since he is not in possession of the original but for
photostat copy that was furnished by the D.1-Developer and the legal
representatives of the original owner i.e. D.2 to D.7 in the Court below
while filing the chief affidavit of D.W.1 for original Development
Agreement is with the defendants, D.W.1 also cross-examined with
reference of the Development Agreement executed between D.1-
Developer and original owner D.L.Kanthamma (mother of D.2 to D.7) and
even the plaintiff/appellant pending the appeal served notice to
produce the original Development Agreement vide notice dated
23.11.1996 on counsel of defendants/ respondents for which having
received the notice to produce they failed to produce thereby
requirement for adducing secondary evidence is laid and thus it is just
and necessary to receive the photostat copy of the Development
Agreement and to exhibit as additional evidence as Ex.B.1 in CCCA
No.112 of 2009 with notice to produce also enclosed and it is received
and acknowledged and there is no reply filed. it also clearly speaks out
the original was withheld despite notice to produce without production
and not even with any endorsement of the original not with them and if
so what happened to the original as discussed supra and once the
Development Agreement and pursuant to which and also from the
written statement of D.5 and cross-examination suggestions to P.W.1 by
defendants, the defendants also liable under the agreement Ex.A.1
obtained by the plaintiffs that was even signed by D.1-Developer
executed on behalf of the original owner D.L.Kanthamma also by then
alive and signed as authorized signatory for the original owner and D.1-
Developer. It is because even original owner not signed what the written
statement of defendants referred supra speaks, the D.1-Developer is
authorized to alienate the portion fallen to his share of the flats under
construction to third parties to execute sale deeds by them alone to the
prospective vendees and that was also the suggestion referring to clause
10 of the Development Agreement by D.2 to D.7 to P.W.1 in both the
suits as D.1 not completed the finishing work but for skeleton
constructed for his selling to several vendees of the respective portions
fallen to the owner D.L.Kanthamma represented by her sons D.2 to D.7
not handed over by finishing they did not execute the sale deeds as it is
the condition precedent and it is also admitted the respective plaintiffs
are also demanding D.2 to D.7 also to refund. The Development
Agreement is for consideration. The D.1-Developer already invested and
constructed as per the Development Agreement the flats and when no
way prohibits from entering into the sale agreements but for clause 10
speaks at best for execution of sale deed subject to completion of
owners portion by the D.1-Developer. When such is the case, it is as
held by the Apex Court in Suraj Lamp & Industries(p) Ltd. Vs. State of
Haryana  with reference to Section 202 of the Contract Act. It cannot
unilaterally be cancelled of the Development Agreement dated
03.12.1998 by MOU dated 15.09.2004 that too in between the D.1 when
entered sale agreements with the two respective plaintiffs under Ex.A.1
of the two suits dated 20.10.2000 and having received almost entire sale
consideration failed to execute sale deeds despite notices failed to
respond when bound even for the main relief waived by the plaintiffs
from the understanding by the plaintiff with D.1 to 7 respectively and it
is also brought on record of plaintiff was also demanding D.2 to 7 for
refund of the amounts; they all being bound to refund at least for
ordering refund by the Court in the alternative in favour of the plaintiff
respectively with interest at 18%p.a. of the amount paid also from
clause-10 in the Ex.A.1 agreement supra for late payment liability of 18%
p.a. interest at least from Ex.A.2 notice of plaintiff till date of suit and
the subsequent interest from date of suit as pendent-liti till date of
decree and even from date of decree till realization for not an
agricultural transaction but in the business or commercial transaction for
the commercial flat sold and amount received to be refunded under
Section 34 of the C.P.C. and that too having demanded in Ex.A.2 notices
by reiterating the understanding between them to refund with interest
at 18% that is not disputed by any reply even by D.1-Developer the
refund to be ordered is at 18%p.a. from Ex.A.2 notice till date of suit
and thereafter even the Court got a discretion to reduce to 12%p.a.
pending suit till date of decree and thereafter it is not 6% but 12% p.a.
The appellate Court also got the discretionary power under Order LXI
Rule 33 C.P.C to award reasonable rate of interest from the fall in bank
lending rate of interest as laid down by the Apex Court in DDA Vs.
Joginder S. Monga .
         33. In fact, though under Order XLI Rule 27(1)(b) the Court the
power to receive the additional evidence for just decision of the case,
from the objection raised and consent not given for marking though the
Court can mark as a Court document for reference sake as Exhibit from
the  agreement contents not in dispute even from the pleadings and
evidence on record supra, this is not even chosen to take the ordeal with
reference to the provision as the material on record is sufficient to draw
adverse inference against the defendants from their non-filing of the
Development Agreement as per the three Judge Bench expression of the
Apex Court in Ketkar supra that is discussed supra.  Thereby the petition
for additional evidence is closed for that no way necessary to arrive at a
just decision of the case from what is discussed supra, even to  invoke
Order XLI Rule 27 (1)(b) C.P.C. from what is laid down in KRM Reddy
Vs M/s Net work inc., .
Issue No.3:
         34. Thus, the CCCAMP Nos.643 and 644 of 2015 are closed and
both the appeals are held to be allowed in part and with costs, while
confirming the trial Courts decree and judgment in refusing the relief of
specific performance of the contract for sale and in granting the
alternative relief for the refund of the amounts with interest, by
modifying the amount and by modifying from what is awarded against
the D.1 to against the D.1 personally also and against D.2 to D.7(R.2 to
R.10) on the property of the mother of D.2 to D.7 in the hands of D.2 to
D.7(Now R.2 to R.10) for the following:-
        The Apex Court in  Delhi Development Authority Vs. Skipper
Construction Company Pvt.Ltd   and judgment of another Bench of this
Court in Mudureddipalle Sanjeeva Reddy Vs. Butturu Rama Mohan   
Reddy  and also from the expression with reference to the provision
similar to it in Rose Vs. Watson  following the earlier expression in De
Bernales Vs. Wood  of right to refund of the amount is safeguarded by
giving the purchaser of lien on the property and interest to be allowed
from the time of purchase on the amount paid. It is further the Full
Bench of the Lahore High Court in Shankri Vs. Milkhasingh  held that
the power of giving charge over the property covered by the contract for
sale is not just kept by any agreement, but by operation of law from the
moment of payment of the purchase amount.  It is also wayback held by
the Madras High Court as a binding precedent on this Court in Sura
Reddy Vs. Ramanarsu  that lien given by virtue of clause 6(b) of
Section 55 of the T.P.Act can be excluded only by a contract to the
contrary and not otherwise to say the lien is statutorily created to
enforce unless given up by specific clause of exclusion. In Delhi
Development Authority Supra categorically observed that the charge
specified under Section 55(6)(b) of the T.P.Act in favour of power is
statutory charge against the vendor interest in the property to fasten
the charge of such property to enforce and it is observed the interest
payable to the buyer is from the date of payment of purchase money to
the seller to the date of delivery of property or execution of sale deed
or otherwise and the period of limitation to enforce such charge for
recovery on the substituted security is 12 years under Article 62 of the
Limitation Act and not mere three years.  In Muniappa Vs. Subbaiah  it
is held on the scope of charge under Section 55(6)(b) of the T.P.Act as
akin to the principle to apply to the enforcement of mortgage and
substituted securities from the general principle of law in Section 73 of
the T.P.Act.
        35. Accordingly and in the result, while setting aside the trial
Courts decree and judgment respectively in both the suits, the appeals
are partly allowed and with costs as follows:
        a) In CCCA No.111 of 2009 against O.S.No.1689 of 2003 it is now
ordered for refund of amount paid under the Ex.A.1 sale agreement of
Rs.5,40,000/-(Rupees five lakh forty thousand only) with interest at
18%p.a. from the Ex.A.2 letter dated 10.06.2002 till date of suit
i.e.16.09.2003 and thereafter at 12%p.a. as per the discretion exercised
by the trial Court in so arriving the rate of interest for the pendent-liti
till date of decree on the entire amount of the principal sum adjudged
of the advance amount of Rs.5,40,000/- with interest at 18% p.a.
thereon as on the date of suit and from date of decree on such principal
sum adjudged further that is the suit amount to be arrived of the
amount to be refunded of Rs.5,40,000/- with interest at 18%p.a. from
Ex.A.2 letter dated 10.06.2002 to the date of suit 16.09.2003 of
Rs.1,22,796/- comes to Rs.6,62,796/- with subsequent interest at 9%
p.a. from the date of decree till realization; which is to recover against
the D.1-Developer personally also and also against the D.2 to D.7 with no
personal liability but for on the estate of their mother D.L.Kanthamma
which they succeeded, with charge over said property to realize the
amount but for to say the executing Court if at all to invoke Section
52(2) C.P.C. for any personal liability against the D.2 to D.7 if
requirements to that extent satisfied u/sec. 55(1)(d) r/w 55(b) of the
T.P.Act.
          b) In CCCA No.112 of 2009 against O.S.No.1690 of 2003, it is now
ordered for refund of the amount paid under the Ex.A.1 sale agreement
of Rs.6,20,000/-(Rupees six lakh twenty thousand only) with interest at
18%p.a. from Ex.A.2 letter dated 10.06.2002 till date of suit
i.e.16.09.2003 and thereafter at 12%p.a. as per the discretion exercised
by the trial Court in so arriving the rate of interest for the pendent-liti
till date of decree on the entire amount of the principal sum adjudged
of the advance amount of Rs.6,20,000/- with interest at 18% p.a. as on
the date of suit and from date of decree on such principal sum adjudged
further that is the suit amount to be arrived of the amount to be
refunded of Rs.6,20,000/- with interest at 18%p.a. from Ex.A.2 letter
dated 10.06.2002 to the date of suit  16.09.2003 of Rs.1,45,080/- comes
to Rs.7,65,080/-+ with subsequent interest at 9% p.a. from the date of
decree till realization; which is to recover  against the D.1-Developer
personally also and also against the D.2 to D.7 with no personal liability
but for on the estate of their mother D.L.Kanthamma which they
succeeded, with charge over said property to realize the amount but for
to say the executing Court if at all to invoke Section 52(2) C.P.C. for any
personal liability against D.2 to D.7 if requirements to that extent
satisfied) u/sec. 55(1)(d) r/w 55(b) of the T.P.Act.
          c) Consequently, miscellaneous petitions, if any, pending in these
appeals stand closed.
___________________________    
Dr. B. SIVA SANKARA RAO, J  
Dated : 22-04-2016.

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