approached the Court with unclean hands and with false averments - not entitled for the discretionary and equitable relief of specific performance = Total sum of Rs.1,55,000/- was said to have been paid under Exs.A.5 to A.10 receipts by way of cash. Even though Chairman of the plaintiff as PW.1 stated about cash payments under those receipts, attestor therein as PW.2 stated that the amounts thereunder were paid by way of cheques. In view of the said basic discrepancy, the Courts below rightly disbelieved payments under Exs.A.5 to A.10 receipts. This is a question of fact, which this Court in this second appeal may not entertain. When the plaintiff approached the Court with unclean hands and with false averments, the plaintiff is not entitled for the discretionary and equitable relief of specific performance of Ex.A.3 agreement for sale.

published in  http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=SA&mno=256&year=2013

SA 256 / 2013

SASR 15716 / 2012

PETITIONER RESPONDENT M/S.NARNE ESTATES PVT LTD   VS ALWAL BALREDDY PET.ADV. : HARI HARAN RESP.ADV. :  SUBJECT: SPECIFIC PERFORMANCE OF CONTRACT(IMMOVABLE PROPERTY) DISTRICT:  NALGONDA

HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

S.A.No.256 of 2013

JUDGMENT:

   

        Unsuccessful plaintiff in both the Courts below is the appellant in this second appeal.  The plaintiff filed the suit for specific performance of Ex.A.3 agreement for sale dated 06.12.1996 said to have been executed by the defendant for Ac.6.37 ¾ guntas of land in Padamati Somaram village, Bibinagar Mandal, Nalgonda District for Rs.2,02,344/-.  On the date of agreement, an amount of Rs.60,000/- by crossed cheque was said to have been paid.  It is the plaintiff’s further case that out of balance of sale consideration, Rs.1,55,000/- was paid to the defendant on different occasions under Exs.A.5 to A.10.  After issuing notices Exs.A.11 and A.12, the suit is laid by the plaintiff.  The defendant’s plea is one of total denial.  After trial, the trial Court dismissed the suit for relief of specific performance of Ex.A.3, but directed the defendant to refund Rs.1,00,000/- to the plaintiff with interest at 18% per annum.  On appeal by the plaintiff, the lower appellate Court dismissed the appeal.

       2. Both the Courts below came to the conclusion that though Ex.A.3 suit agreement and Ex.A.4 receipt are true, Exs.A.5 to A.10 are false.  Under Ex.A.3 suit agreement, a sum of Rs.60,000/- was paid by way of crossed cheque.  The plaintiff is stated to have paid Rs.40,000/- to the defendant under Ex.A.4 receipt by way of cash.  Total sum of Rs.1,55,000/- was said to have been paid under Exs.A.5 to A.10 receipts by way of cash.  Even though Chairman of the plaintiff as PW.1 stated about cash payments under those receipts, attestor therein as PW.2 stated that the amounts thereunder were paid by way of cheques.  In view of the said basic discrepancy, the Courts below rightly disbelieved payments under Exs.A.5 to A.10 receipts. This is a question of fact, which this Court in this second appeal may not entertain.  When the plaintiff approached the Court with unclean hands and with false averments, the plaintiff is not entitled for the discretionary and equitable relief of specific performance of Ex.A.3 agreement for sale.

       3.  Inspite of there being a question of law on the point of limitation, this second appeal is not liable to be admitted in view of factual finding on Exs.A.5 to A.10 receipts.  Inspite of possibility of a positive finding in this appeal in favour of the plaintiff on the point of limitation, the plaintiff cannot be successful in obtaining decree for specific performance in view of factual finding on Exs.A.5 to A.10.  Therefore, this second appeal fails and accordingly is dismissed.  No substantial questions of law arise for determination in this second appeal.

       4.  In the result, the second appeal is dismissed.

____________________________

SAMUDRALA GOVINDARAJULU,J

Dt.15^th March, 2013

PNV