2011 (3) ALD 774
IN THE HIGH COURT OF
JUDICATURE OF ANDHRA PRADESH
AT HYDERABAD
THE
HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO
+ APPEAL SUIT NO.2734
OF 2004
04-03-2011
Chodi Mahalakshmi
….Appellant
Vs.
Koppada Sathiraju and others
….
Respondents
!Counsel
for the Appellant : Sri S.Srinivas Reddy
Counsel
for the Respondents: Sri Y.V.Ravi Prasad
Cases
referred:
- (2008) 7 SCC 310
- (1996) 5 SCC 589
- (1999) 7 SCC 303
- AIR 1957 A.P 585
- 2002 (3) ALT 754
- AIR 1981 SC 2085
- AIR 1975 MADRAS 333
- 1999 (5) ALD 472
- 1998 (5) ALD 387
- AIR 1962 RAJASTHAN 231
- AIR 1989 SUPREME COURT 788
JUDGMENT:
The
first defendant in O.S.No.1 of 1990 on the file of the Court of III Additional
District Judge, Kakinada is the appellant herein. The
suit was filed for specific performance of the contract of sale dated
30-04-1981 executed by the first defendant free of the mortgage said to have
been created by the first defendant in favour of the second defendant.
The
allegations in the plaint goes to show that the schedule property, which is an
extent of Ac.5.85 cents of land, belongs to the first defendant and she agreed
to sell the property for a consideration of Rs.78,000/- on 30-04-1981 and
received a sum of Rs.40,000/- and the possession was delivered. The time for
payment of the balance amount of Rs.38,000/- was fixed as one month i.e.,
before the end of May 1981. The first defendant undertook to discharge the
debts owed by her to the L.M.B and thereafter undertook to give the title deeds
relevant to the schedule property and the possession of the property was
delivered in part performance of the contract. Subsequently,
on 27-10-1981 the plaintiff paid to the husband of the first defendant a sum of
Rs.33,860/- towards balance of sale consideration and he endorsed on the back
of the agreement. He represented that the first defendant is not available
and therefore he has acted on her behalf. In the first week of November 1981 a
sum of Rs.4140/- was paid in full payment of the balance of the sale
consideration and also a sum of Rs.2,000/- towards interest. The
plaintiff was always ready and willing to perform his part of the contract and
the first defendant has not fulfilled the obligation to discharge the loan to
the land mortgage bank and to deliver the title deeds. As the first defendant
avoided, a legal notice was given and the first defendant gave a reply with
false allegations and pleading that the plaintiff is a tenant of the schedule
property and on the date of suit agreement it is issued a only a sum of
Rs.4,000/- as advance of the rent and the plaintiff wanted some documents and
she signed on the papers. The second defendant is a subsequent alienee after the
suit agreement in whose favour a mortgage has been created and filed a suit
O.S.No.357 of 1993 and proceeding in execution. Therefore, the defendants are
liable for the specific performance of the contract or in the alternative for a
refund of the sale consideration of Rs.78,000/-.
The
first defendant filed a written statement denying the allegations in the plaint
about the contract of the sale and receipt of the consideration. The defendant
never executed the alleged agreement of sale. The possession of the plaintiff
in the suit schedule property is only as a tenant not as a purchaser. It was
further pleaded that the plaintiff was cultivating the land on an annual maktha
of 90 bags of paddy and Rs.5000/- as cash for the usufruct of the trees payable
by 15th January on every year. During 1981-1982 the husband of
the first defendant suffered from heart attack and was ill. On 30-04-1981 the
plaintiff paid a sum of Rs.4000/- to the defendant towards the advance of
maktha. The husband of the first defendant was taken to the
hospital of Dr.Jagannadham and Venkata Prasad of Kakinada with the assistance
of Dr.S.V.Ramayya and the plaintiff and one S.Jagga Rao accompanied them.
Further, it is averred in para.10 of the counter-affidavit as follows:-
“ At
the residence of Dr.Jagannadham and Venkata Prasad the defendant asked the
plaintiff to give the amount he brought. The plaintiff brought two
stamp papers of worth Rs.3/- and Rs.2/- each and insisted for the signatures of
the defendant and that of her husband on those blank stamps. Due to
heart trouble the husband of the plaintiff and due to anxiety the defendant
were not able to resist the plaintiff and out of anxiety they signed on those
two blank stamps as directed by the plaintiff. The plaintiff
representing that he required some document as he is the cultivating tenant,
having possession of the suit schedule property, obtained the said signatures
and paid an amount of Rs.4000/- towards the advance magta to the defendant and
went away.”
In the year 1983, the plaintiff fell in
arrears of the rent and the defendants demanded the plaintiff to pay the agreed
rent but in stead of it, the plaintiff created a false story of the agreement
and gave a legal notice. A criminal case was also filed by the
defendants. Proceedings for eviction were also initiated under the
Tenancy Act. Therefore, by playing fraud and exercising undue
influence the plaintiff obtained the signatures of the first defendant and of
her husband and subsequently converted the same into the suit agreement. The
payment of Rs.33,860/- on 27-10-1981 is also denied. The further payment and
interest payment in the last week of November 1981 is also denied. The
suit is therefore liable for dismissal.
The second defendant filed a written statement contending
that the first defendant stood as a co-obligant for the loan obtained by
M/s.Srinivasa Iron Merchants and deposited the title deeds and as the loan
amount was not discharged, the suit O.S.No.357 of 1993 was filed and a
preliminary decree was obtained and the execution proceedings were initiated.
The agreement in favour of the plaintiff is also disputed.
On the
basis of the above pleadings, the following issues have been framed for trial.
1. Whether the agreement dt.30-04-1981 is true, valid and
binding on the defendants?
2. Whether the alleged advance of Rs.40,000/- is true?
3. Whether the plaintiff is in possession of the plaint
schedule property in pursuance of the alleged sale agreement dated 30-04-1981?
4. Whether the alleged payment of Rs.33,860/- on 27-10-1981
by the plaintiff to the husband of the first defendant is true?
5. Whether the plaintiff herein is in possession as tenant?
6. Whether the alleged payment of RS.4140/- by the plaintiff
to the defendant towards full payment of balance sale consideration is true?
7. Whether the alleged payment of Rs.2000/- by the plaintiff
to the first defendant towards interest in the last week of November 1981 is
true?
8. Whether the endorsement dated 27-10-1984 is true, valid
and binding on defendant?
9. Whether the plaintiff is entitled to specific performance
as prayed for?
10. Whether the plaintiff is entitled to the alternative
relief of refund of
Rs.78000/-
11. To what relief?
Later
the following additional issue has been framed:-
12. Whether the equitable mortgage created by the first
defendant in favour of the second defendant over the plaint schedule property
is binding on the plaintiff?
On behalf of the plaintiff, Pws.1 and 2 were examined and
marked Exs.A-1 to A-9. On behalf of the defendants, Dws.1 to 4 were examined
and marked Exs.B-1 to B-4.
After
considering the evidence on record, the learned III Additional District Judge,
Kakinada decreed the suit of the plaintiff disbelieving the payment of
Rs.4140/- and directed the same to be deposited. It was also held that
equitable mortgage in favour of the second defendant is not binding on the
plaintiff. Aggrieved by the said judgment, the present appeal is filed.
Now
the points that arise for consideration are:-
1. Whether the contract of sale pleaded by the plaintiff is
true, valid and binding on the first defendant?
2. Whether the judgment and decree passed by the lower court
in granting specific performance is legal and sustainable?
POINTS:-
The learned counsel for the appellant contends that there
is no proof of execution of the contract of sale by the defendants and mere
admission of the signatures is no proof of the execution of the document or the
contents of the document and this being a suit for specific performance, it is
the burden of the plaintiff to prove the truthfulness and also the entitlement
of relief of specific performance. It was also his further plea that the lower
court having held that the payment of Rs.4,140/- and the interest of Rs.2,000/-
said to have been paid by the plaintiff is not true, should have dismissed the
suit as the plaintiff has not come forward to the court with clean hands.
Further more, there was no payment of money by the plaintiff under the alleged
payment of Ex.A-2 dated 27-10-1981 and consequently it cannot also be taken
into consideration. According to him, the evidence of PW.1 and PW.2 does not
inspire confidence to get the discretionary relief of specific performance. In
fact according to him PW.2 is not at all associated with Ex.A-1 or Ex.A-2 and
is a person impersonating. He relied on a decision reported in Mohammadia
Cooperative Building Society Limited VS. Lakshmi Srinivasa Cooperative Building
Society Limited and others ([1]) and
also another decision reported in Lourdu
Mari David and others Vs. Louis Chinnaya Arogiaswamy and others ([2]). According
to the further claim of the appellant, the plaintiff has been in possession of
the property as a tenant and there was no delivery of possession as on the date
of the agreement and even according to the plaintiff it was subsequent to it
and the plaintiff’s possession is only as a tenant and merely because the
earlier proceedings initiated against the plaintiff are dismissed, the case of
the plaintiff cannot be taken to have been proved. It is also the contention of
the learned counsel for the appellant that the lower court has cast the burden
on the appellant to disprove the execution of the agreement and erred in
relying upon the admission of signatures on Exs.A-1 and A-2 and thereby
inferring the genuineness of the transaction.
Further,
it will be useful to refer to a decision reported in Ram
Kumar Agarwal and another Vs. Thawar Das (dead) through L.Rs ([3]),
where under it was held that a person who falsely claims to have paid a sum of
money and attempts to prove the plea at trial stage, cannot be said to have
been ever ready and willing to pay the sum due under the contract in question.
On the
other hand, the learned counsel for the plaintiff/respondent while supporting
the judgment of the lower court contends that the theory under which the
agreement Ex.A-1
is said to have come into existence is not proved and when there is an
admission of the signatures, the burden is on the party to show as to under
what circumstances the document has come into existence and the plea of tenancy
was not accepted and therefore it would be agitated now and further there was
no plea that the payment made to the husband of the first defendant is not
valid and not binding on the defendants and consequently such a plea cannot be
raised in the appeal. He relied upon a decision reported in Alapati
Sivaramakrishnayya Vs. Alapati Kasiviswanadham and others ([4]) wherein
the court considered about the burden of proof with regard to admission of
signature on a letter. In fact the above judgment refers to an earlier decision
where under the admission of signature on a promissory note was considered. In
fact, in that case during the trial the party has admitted the letter and
contents thereof. The above judgment is also unambiguous about the fact and in
Para.11 their lordships observed as under:-
“Before we discuss the question of burden of proof in a
case of this character, it is necessary to point out that the word “execution”
is hardly apt when used in regard to the drafting of a letter and is only
appropriate in regard to a deed or instrument, as in such cases, certain
formalities are insisted upon by law and they are to be followed by the
executant in order to make the document effective in law. Where,
as in the case of a will, the law requires the attestation by two witnesses of
the signature of the testatory, there can be no execution, as such, unless the
procedure prescribed by the law in regard to attestation is followed. A piece
of paper, though styled a will and though it may contain the alleged testator’s
signature will not be a will unless it has been executed in the manner
prescribed by law.
So
also is the case with other documents where definite formal requirements are
prescribed. Nobody can execute a will by merely drawing up a document containing
directions as to the disposal of his property after his death followed by his
signature. Nobody can be said to have executed a mortgage bond
merely by signing a document called a mortgage deed. But,
in the case of a letter where there can be no possible question of execution in
this sense, proof of a man’s signature under it is surely prima facie proof
that the contents of the letter are attributable to this authorship. If a man
denies that he has written a letter which contains his signature, then surely
he must prove that he alleges i.e., that the letter was got up a blank piece of
paper containing his signature, as also the circumstances in which he happened
to put his signature on such a piece of paper.”
Their lordships have specifically made a
distinction between the admission of signature on a letter and the proof of
execution of a document. Therefore, in such circumstances, the above decision
will not help the counsel for the respondent and the burden of proof cannot
cast on the appellant. In this connection, it is useful to refer to a judgment
reported in Ramnivas Gupta and others Vs. Maliram([5]) where under the judgment
relied on by the counsel for the respondent along with other decisions on the
points were considered and it was found that when execution is denied mere
proof of signature of the executant not sufficient. Person
relying upon such document must further establish that executant affixed his
signature after knowing the contents thereof. In fact, it was also a case
dealing with specific performance of contract. Further more, in a judgment
reported in Ramji Dayawala & Sons (P) Ltd., Vs. Invest Import ([6]) it was held as under:-
“Undoubtedly, mere proof of the hand-writing of a document
would not tantamount to proof of all the contents or the facts stated in the
document. If the truth of the facts stated in a document is in issue mere proof
of the handwriting and execution of the document would not furnish evidence of
the truth of the facts or the contents of the document. The truth or otherwise
of the facts or contents so stated would have to be proved by admissible
evidence i.e. by the evidence of those persons who can vouchsafe for the truth
of the facts in issue.”
It is
also useful to refer to the decision reported in N.Ethirajulu
Naidu Vs. K.R.Chinnikrishnan Chettiar ([7]).
Therefore, in view of the above decision, the approach of the lower court in
placing the burden on the defendant by mere admission of the signatures on
Exs.A-1 and A-2 is not correct and the party seeking specific performance has
to prove the terms of the contract, the contents of the agreement and also the
passing of the consideration. Evidently, as per law of evidence, the burden is
on the person who fails if the evidence is not adduced to prove the fact in
issue. The fact in issue is as to whether the agreement was executed in the
manner alleged by the plaintiff. If there is an evidence on the side of the
plaintiff to probablise the truthfulness of the contents, then the plea of the
defendant has to be put juxtaposition and the court can decide as
to whether the plea of the defendant is true or not. In a suit for specific
performance where a decree is only a discretionary, in the proof of the
substance of the claim of the plaintiff, the burden cannot be cast on the
defendant. In fact as rightly contented by the learned counsel for the
appellant, the lower court has erred in holding that the signatures on Exs.A-1
and A-2 of first defendant and her husband entitles to draw the inference of
the execution is not correct.
The
learned counsel for the respondent also relied on a decision reported in Palika
Sathiraju Vs. Pydah Soma Malleswara Rao([8]) wherein the defendant
having taken a specific plea of tenancy, the burden is on him even if there is
no evidence on the side of the plaintiff as he would fail. The
above proposition of law has no application to the facts of this case since the
suit is one for specific performance of the contract and the question of
relevancy of tenancy and the earlier litigation has no application as even
according to the case of the plaintiff he claims to have come into possession
after the agreement. The decision relied upon by the counsel for the respondent
in Secretary to Government of India, Ministry of Defence,
New Delhi Vs. Indira Devi ([9]), also
does not apply to the facts of this case for the reasons already stated above.
The decision relied in the lower court and repeated before this Court reported
in O.P.Verma Vs. Lala Gehrilal and another ([10]) has
no application in view of the judgments of our own High Court, Madras High
Court and also the judgment of the Supreme Court referred above. The decision
reported in Jiyajeerao Cotton Mills Ltd., and another Vs. The M.P
Electricity Board and another ([11]) about
the permissibility of taking a plea, which was not taken in the writ before the
High Court has no application to the facts of the case. Evidently, in a civil
suit issues are framed and the decision is delivered on the basis of the
pleadings of both parties. The entitlement of a relief in a suit is based on
the fact of enforceability of the agreement. In fact, it is not the case
of the first defendant though she is admitting Ex.A-1 under Ex.A-2 transaction,
receipt of consideration by DW.2 the husband of the first defendant, who is not
a party to the suit, the payment under Ex.A-2 was said to have been made to him
is with her consent or authorisation. In
fact the endorsement under Ex.A-2 does not show that he has received the money
under any authority from the first defendant. Evidently,
even according to the case of the plaintiff when the first defendant is not
available the said amount is said to have been paid to DW.2 and it is not with
her consent. Merely because DW.2 is the husband of the first defendant, it does
not mean that any amount received by him without the consent or the
acknowledgment of the first defendant will bind her. In fact when the parties
are denying the transaction itself, it is for the plaintiff to prove the
truthfulness of the transaction, the authority and the binding nature. It is
not a new plea that is developed in the appeal to be negatived as contended by
the learned counsel for the respondent. The relief of specific
performance can only be granted when once there is a binding acceptance of the
money by the DW.2 on behalf of the first defendant only or when there is
ratification of the same by D-1. When the authority of
DW.2 to receive the said money is not proved then it is not a valid payment
under the agreement and not in performance of the obligation under the
contract. If DW.2 is to be benefited by any act by
himself, the endorsement made on Ex.A-1 will not therefore be a valid
enforceable payment against the first defendant when there is no consent,
authority or ratification from her.
The
lower court has found that payments pleaded at Visakhapatnam to the husband of
the first defendant towards full discharge and interest are not proved. From
the above findings of the lower court under issues 6 and 7, it is quite clear
that the plaintiff has not come to the court with truth andbonafides. If
really the said payments were there and if the plaintiff was prudent enough in
getting an endorsement like Ex.A-2, there is no reason as to why even a receipt
was not taken from DW.2. Therefore, the above fact clearly goes to show that
the plaintiff has come to the court with falsity and not with clean hands; the
preparedness, readiness and the willingness to perform his part of the contract
is doubtful.
According
to the case of the plaintiff, the sale of the property was said to be to
discharge the loan payable by the defendants to the land mortgage bank and on
the date of agreement a sum of Rs.40,000/- was paid and the agreement was
executed on 30-04-1981. As per the evidence of the plaintiff as PW.1,
the talks of the transaction have taken place between him and DW.2 and
according to him the first defendant’s husband offered to sell the property as
there is a L.M.B bank loan and he asked the first defendant’s husband to
discharge the bank debt and sell the property to him. Therefore, when the
plaintiff is aware that a bank loan is existing, any prudent person would have
gathered the particulars of the bank loan and if a consideration of Rs.40,000/-
was paid on the date of agreement and another sum of Rs.33,860/- was paid on
21-10-1981, the purchaser would have definitely asked for discharge of the bank
loan. In this particular case, there is no reason as to why the plaintiff has
not made enquiries about the bank loan nor as to the reason as to why he did
not see that the money paid by him was utilised for discharge of the L.M.B loan
and there is no reason as to why he did not collect the particulars of those
documents. It was also further said to have been represented to him that the
original sale deed was with the L.M.B bank. The talks for sale were said to be
a month prior to the sale agreement. Therefore, from his evidence he neither
made enquiries about the bank loan nor even by the date of evidence he is able
to say whether the said loan was discharged and if so what is the amount that
was given in discharge. Therefore, the very reason for the sale of the property
pleaded by the plaintiff is not proved and the conduct of the plaintiff lacks bonafides in not
making any enquiries. The circumstance has to be kept in mind while he took
plea that he got possession of the property only after the payment of
Rs.33,860/- under Ex.A-2. Evidently, there is no proof of delivery of
possession to him in pursuance of the contract. When such proof is wanting the
other inference has to be drawn by the court according to the case of the
defendant. However, any finding as to the nature of the possession of the
plaintiff is not relevant in the suit since other litigation is pending between
parties.
It is
also to be noted that under Ex.A-1 it was specifically mentioned that
possession should be delivered at the time of execution of the sale deed only.
There is absolutely no reason as to why on the date of Ex.A-2, the possession
has to be delivered. When DW.2 is prudent enough to have an endorsement under
Ex.A-2 about the payment, there is no reason as to why the factum of possession
was not written. This is only an evidence of the plaintiff sofar as the
execution of the agreement is concerned. Sofar as PW.2 is concerned, his
identity as Kamadi Ganga Raju, the attesting witness, is disputed. Evidently,
he is not an attestor or a person present at the time of Ex.A-1 transaction.
Ex.A-1 does not bear his signature. In fact it is a case of the plaintiff that
the attestor and scribe on Ex.A-1 are no more. Therefore, except the interested
evidence of PW.1 surrounded by suspicious circumstances, there is no other
evidence to prove the execution of Ex.A-1 or the probability of its execution
for consideration as alleged by the plaintiff. Even if the evidence of
Pw.2 on Ex.A-2 is to be taken as true, still as already held by me that
endorsement is not made on behalf of the first defendant and it has no validity
and cannot be binding on the first defendant. It cannot also be forgotten that
the first defendant has instituted a criminal case for fabrication of the
document against S. Jagga Rao and others.
A
further question to be taken into consideration is whether the defendant has
probablised the theory of subscribing the signature on blank or stamped
papers. According to the case of the first defendant, her husband
was said to be ill and he was taken to the hospital by DW.3 who was the Doctor
attending to him. According to him, he was first taken to the hospital of
one Venkata Prasad and the plaintiff came along with Kurada Jagga Rao and DW.2
asked for bringing about the money and at that time the signatures were taken
on blank and stamped papers. DW.2 is said to have been
given Rs.4000/- and under those circumstances the documents were
executed. It is his evidence that Venkata Prasad is a General
Physician and not a Cardiologist. It was also elicited that there is a General
Hospital at Kakinada in between the house of Venkata Rao and hospital of
Venkata Prasad and he does not know whether Venkata Prasad is having equipment
to treat heart ailment. On the basis of this evidence, the lower court has
given a strange reasoning to discard the claim of the defendants. The lower
court found fault for not producing the record from the Government hospital at
Kakinada about his admission and also non-examination of Dr.Venkata
Prasad. Evidently, according to the evidence of DW.3 Venkata
Prasad was not at all present when the entire transaction has taken place.
Naturally when any person complains of ill-health and is taken to the hospital,
first preference will be to call the family doctor and then to a Physician and
thereafter to a Cardiologist. The theory of DW.2 being taken to the hospital is
not in doubt. So also there is absolutely no need for DW.3 to speak about the
facts as to his presence at the hospital of Venkata Prasad and taking DW.2 to
the hospital. In fact the burden of proof on this aspect is only to probablise
the contention of the defendant and not to prove the execution of Ex.A-1 with
its contents by DW.3. The lower court has approached the matter in a wrong
perspective and it is useful to refer to the approach in para.15 of the
judgment of the lower court:-
“A careful perusal of the testimony of DWs.1
and 2 clearly reveals that they have admitted their signatures on Agreement of
sale Ex.A-1. DW.2 also admitted the signature of Surada Jagga Rao. Once
the plaintiff establish that Ex.A-1 agreement of sale bear the signature of 1stdefendant
and DW.2, then the onus of proof shifts on the 1st defendant
to establish the circumstances under which they were compelled or forced to
sign on Ex.A-1 agreement of sale. The predominant contention of the 1st defendant
is that the plaintiff obtained their signatures on blank stamp papers on
30-04-1981 in the hospital. To substantiate the same
the 1st defendant mainly relied on the testimony of Dws.2 and 3.”
This
approach as already pointed out above is against the settled principles of law.
Evidently, sofar as Ex.A-1 is concerned except the evidence of PW.1 there is no
other evidence and Ex.A-2
is not a document or endorsement made by the executant of the document and it
has no validity. Further more, the plaintiff’s conduct is not bonafide and
did not act as a prudent and reasonable man to ascertain the particulars of the
loan and did not make any attempt at any time to get it discharged and also
came with a false plea of payment of sale consideration which disentitles him
for the equitable relief of specific performance. The whole approach of the
lower court in deciding the case is erroneous and the judgment of the lower
court is liable to be set aside. The alternative relief of refund of
consideration also does not arise since the payment under Ex.A-2 was made to
DW.2 who is not a party to the suit and the payment of consideration was
Rs.40,000/- under Ex.A-1 is also not proved. Therefore, the judgment passed by
the lower court is liable to be set aside and accordingly the points are
answered.
Therefore,
the Appeal Suit is allowed setting aside the judgment and decree dated
21-04-2004 in O.S.No.1 of 1990 on the file of the Court of III Additional
District Judge, Kakinada and the suit of the plaintiff is dismissed. Each party
shall bear their own costs.
_______________________
N.R.L.NAGESWARA
RAO,J
04-03-2011
LR copy to be marked: YES
TSNR
********
THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR
Appeal Suit No. 732 of 2009
Judgment:
The defendant in O.S. No.1303 of 2005 on the file of the III Addl. Senior Civil Judge (FTC), R.R. District, is the appellant herein.
The parties hereinafter will be referred to as they are arrayed before the lower Court for the sake of convenience.
The plaintiff filed the suit for specific performance contending that the defendant is the absolute owner and possessor of the agricultural lands bearing Survey No.94, admeasuring Ac.1-33 gts., and Sy.No.95 admeasuring Ac.1-21 gts., totally admeasuring Ac.3-14 gts., situated at Kongara Khurd ‘A’ village, Maheshwaram Mandal, R.R. District (hereinafter referred to as ‘suit schedule property’). She offered to sell the same to the plaintiff at Rs.1,65,000/- per acre and out of total consideration of Rs.5,52,750/- the plaintiff paid Rs.1,50,000/- as earnest amount to the defendant on 22.12.2002 and the defendant executed the agreement of sale in Ex.A1 on the same day in favour of the plaintiff. As per the terms of the agreement, the defendant agreed to receive the balance sale consideration amount of Rs.4,02,750/- from the plaintiff on or before 20.03.2003 and agreed to execute a registered sale deed in favour of the plaintiff or his nominees. As per the request of the defendant and believing the version of her family members the plaintiff paid the amount of Rs.60,000/- on 22.05.2003 to the son of the defendant. He has also paid an amount of Rs.2,00,000/- on 04.05.2004 to the defendant and the defendant and her sons passed separate receipts in favour of the plaintiff to that effect. The plaintiff having paid total amount of Rs.4,10,000/- approached the defendant to receive the balance sale consideration amount, but the defendant dodged the matter for some reason or the other and consequently he issued a legal notice on 02.08.2005 under Ex.A5. The defendant in spite of receiving said notice did not give any reply. The defendant filed a caveat on 16.08.2005 suppressing the real facts and in the above circumstances, the plaintiff filed the suit for specific performance. The plaintiff also specifically pleaded that he has always been ready and willing to pay the balance sale consideration.
The defendant filed a written statement denying the allegations made in the plaint. The defendant denied that she agreed to sell the suit land. She has also denied the execution of agreement of sale in Ex.A1 and the allegations of the plaintiff that he paid an amount of Rs.60,000/- on 22.05.2003 and Rs.2,00,000/- on 04.05.2004. It is further averred that the plaintiff is a Government servant working as a RTC driver and therefore the description of his occupation as agriculturist is false. The defendant further contended that she is not the absolute owner and possessor of the suit schedule property and that her husband was the absolute owner of the property and after demise of her husband all his legal heirs inherited the properties and the defendant is only one of the shareholders. The defendant further averred that the plaintiff is stranger to her and that she had never received the alleged legal notice said to have been sent by the plaintiff. However, the defendant admitted that she has filed a caveat. It is also averred that the documents filed by the plaintiff are forged and fabricated and that the suit is barred by time and not maintainable and that any payment made above Rs.20,000/- are to be made through bank transaction as per the RBI guidelines.
Basing on the above pleadings, the lower Court framed the following issues.
1. Whether the defendant executed the agreement of sale dated 22.12.2002 in favour of the plaintiff and agreed to sell the suit property for Rs.4,02,750/-?
2. Whether the plaintiff paid Rs.1,50,000/- on 22.12.2002, Rs.60,000/- on 22.05.2003 to the son of the defendant and Rs.2,00,000/- on 04.05.2004 to the defendant and her sons?
3. Whether the plaintiff is entitled for specific performance of agreement of sale dated 22.12.2002?
4. Whether the plaintiff is entitled for physical and vacant possession of the suit schedule property from the defendant?
5. To what relief?
On behalf of the plaintiff, the plaintiff himself was examined as PW.1 and PWs.2 and 3 were examined and Exs.A1 to A8 were marked. On behalf of the defendant, the defendant herself was examined as DW.1, but no documents were marked.
The lower Court, on appreciation of the entire oral and documentary evidence, came to the conclusion that the stamp paper for Ex.A1 was purchased one day prior to the date of execution of the agreement of sale and there is nothing wrong with regard to purchase of the stamp paper. The lower Court further believed the evidence of PWs.2 and 3 who are the attestors of Ex.A1 and came to the conclusion that the defendant executed the agreement of sale in Ex.A1 and that the plaintiff paid Rs.1,50,000/- on 22.12.2002, Rs.60,000/- on 22.05.2003 to the sons of the defendant and Rs.2,00,000/- on 04.05.2004. The lower Court also came to the conclusion that the defendant is the absolute owner of the land and that the suit land stands in her name as pattadar and that the sons of the defendant P. Lingamaiah and Mahender have knowledge about Exs.A1 to A3 and that the defendant having received the legal notice failed to give reply. Thus, the lower Court decreed the suit.
Learned counsel for the appellant has attacked the judgment of the lower Court on various grounds. His main submission is that the defendant is not the absolute owner of the property and she has no right to alienate the property and in the above circumstances the agreement of sale even if believed to have been executed by the defendant is not valid. It is also submitted that the lower Court has placed burden on the defendant and basing on the weakness in the defendant’s case decreed the suit. His main contention is that a suit cannot be decreed basing on the weakness in defendant’s case. It is further argued that in the absence of examination of any concerned Postman the lower Court ought to have held that Exs.A6 and A7 are not proved. It is further argued that according to the plaintiff there is no other transaction between the parties and in the above circumstances the lower Court ought not to have believed Exs.A2 to A4. It is further argued that the plaintiff has taken a false plea of making a part payment of sale consideration amount and once his version has been disbelieved the suit for specific performance must be dismissed. He placed reliance on the judgment reported in
P. Prabhakar Rao v. Y. Venkata Mohan Rao[1]. He has also relied on the judgment reported in Lourdu Mari David v. Louis Chinnaya Arogiaswamy[2], in support of his contention that the party who makes false allegations cannot avail the equitable jurisdiction of a Court and specific performance being equitable relief. Thus, a party who seeks equitable jurisdiction must come to the Court with clean hands. It is further argued that even if Ex.A1 is accepted as true the plaintiff failed to pay the remaining balance of sale consideration amount in terms of Ex.A1, therefore the lower Court ought to have concluded that the plaintiff was never ready and willing to perform his part of contract. It is further argued that the sons of the defendant are not parties to the suit and therefore even assuming that Exs.A2 to A4 are signed by the sons of the defendant the lower Court ought to have dismissed the suit for non-joinder of necessary parties. It is also argued that the non-examination of the wife of the plaintiff who is a party to Ex.A3 is fatal to the case of the plaintiff. It is further argued that the appellant filed ASMP No.1512 of 2011 in this appeal to summon the report of the handwriting expert from the lower Court on the ground that the said document was not marked in the lower Court and that the plaintiff deliberately not marked the same since the report was going against the plaintiff. As the other side reported no objection the report is marked as Ex.X1. It is further argued that the hand writing expert opined that the finger prints in Ex.A1 are unfit for comparison, and therefore the version of the plaintiff should be rejected.
P. Prabhakar Rao v. Y. Venkata Mohan Rao[1]. He has also relied on the judgment reported in Lourdu Mari David v. Louis Chinnaya Arogiaswamy[2], in support of his contention that the party who makes false allegations cannot avail the equitable jurisdiction of a Court and specific performance being equitable relief. Thus, a party who seeks equitable jurisdiction must come to the Court with clean hands. It is further argued that even if Ex.A1 is accepted as true the plaintiff failed to pay the remaining balance of sale consideration amount in terms of Ex.A1, therefore the lower Court ought to have concluded that the plaintiff was never ready and willing to perform his part of contract. It is further argued that the sons of the defendant are not parties to the suit and therefore even assuming that Exs.A2 to A4 are signed by the sons of the defendant the lower Court ought to have dismissed the suit for non-joinder of necessary parties. It is also argued that the non-examination of the wife of the plaintiff who is a party to Ex.A3 is fatal to the case of the plaintiff. It is further argued that the appellant filed ASMP No.1512 of 2011 in this appeal to summon the report of the handwriting expert from the lower Court on the ground that the said document was not marked in the lower Court and that the plaintiff deliberately not marked the same since the report was going against the plaintiff. As the other side reported no objection the report is marked as Ex.X1. It is further argued that the hand writing expert opined that the finger prints in Ex.A1 are unfit for comparison, and therefore the version of the plaintiff should be rejected.
It is further argued that in the legal notice sent by the plaintiff the plaintiff mentioned therein that the sons of the defendant received the part sale consideration amount under Ex.A3 on 22.05.2003 and subsequently on 04.05.2004 and that the sons of the defendant are not parties to Ex.A1 and that the sons are not summoned by the plaintiff and in the above circumstances the payments made under those documents cannot be accepted. It is further contended that the plaintiff was getting meager salary of Rs.2,000/- and he failed to prove the source of income. It is further contended that the stamp under Ex.A3 was purchased on 05.02.2003 and it was used on 04.05.2004 and when it is found that the stamps were not purchased properly in the name of proper person the same have to be disbelieved. Reliance is placed on a decision reported in Ramanivas Gupta v. Maliram[3].
The learned counsel for the respondent/plaintiff argued that Ex.A1 is the agreement of sale executed in the name of the defendant and it bears the signature of the son of the defendant and that the defendant received an amount of Rs.1,50,000/- on 22.12.2002 and issued receipt under Ex.A2. It is argued that though the defendant agreed to receive the balance of sale consideration on or before 20th March 2003, but admittedly the son of the defendant received Rs.60,000/- on 22.05.2003 and that the defendant and her sons Lingamaiah and Mahender received Rs.2,00,000/- on 04.05.2004 and the conduct of the defendant in receiving the amounts reveal that time is not the essence of the contract. It is further contended that Exs.A3 and A4 are not separate agreements and they are only receipts. It is further argued that PW.3 is from the village of the defendant and he deposed that he had witnessed the execution of Ex.A1 by the defendant and that the evidence of PWs.2 and 3 proves that the defendant executed Ex.A1. It is further contended that the defendant admitted that she has received the legal notice and admittedly no reply was given to the said legal notice. It is further contended that the defendant is the absolute owner of the property, the patta of the land stands in the name of the defendant and that in the caveat filed by the defendant she admitted that she is the absolute owner of the land and in the above circumstances the version of the defendant that it is the joint family property is to be treated as a theory subsequently introduced by her. It is further argued that the sons of the defendant have signed in Ex.A3. It is further argued that the defendant ought to have examined her sons if at all they have not signed in Ex.A3. It is further argued that the plaintiff was working in APSRTC and subsequently he was removed from service and therefore he had shown his profession as agriculture. It is further contended that the evidence of PW.1 shows that he has always been ready and willing to perform his part of contract. It is further argued that PW.2 signed in Ex.A1 at the instace of the defendant and therefore there is nothing wrong in believing the evidence of PWs.2 and 3. It is further argued that the expert opinion shows that the thumb impressions are unfit for comparison that does not mean that the plaintiff’s version is false. It is further argued that the lower Court having considered the entire evidence categorically found that the plaintiff’s version is true and there is nothing to disturb the well reasoned finding of the lower Court.
The points that arise for consideration are; (1) whether the defendant is the absolute owner of the property, (2) whether the defendant executed Ex.A1 agreement of sale,(3) whether the plaintiff made part payment under Ex.A3 and whether the payment made under Ex.A4 is to be treated as part of sale consideration amount.
The defendant contended that she is only a shareholder and that after the death of her husband she along with her sons inherited the property. Admittedly, the defendant filed a caveat. In para 2 of the caveat she has stated as follows.
“I submit that I am the absolute owner and possessor of agricultural land bearing Sy.Nos.94 and 95, admeasuring Ac.1-33 gts., and Ac.1-21 gts., respectively, totally admeasuring Ac.3-14 gts., situated at Kongara Khurd ‘A’ village, Maheshwaram Mandal, R.R. District, and the said agricultural land is our own property and I am enjoying the same since 11 years as owner.”
The defendant was examined as DW.1. In the cross-examination she deposed that the suit land stands in her name and the passbook and title deeds of the suit land are in her custody. She further deposed that her name is shown as pattadar for the last 7 years (prior to her examination on 09.07.2009). Her evidence further shows that she got four sons and her elder son separated from their family and that the remaining sons and herself are living together. She further deposed that she got Ac.2-30 gts., of land in her name. Though the evidence of PW.1 shows that the defendant agreed to take steps to see that patta is mutated in her name in revenue records, but the assertion made by the defendant in her caveat and evidence and the fact that her sons seems to have signed in Ex.A3 support the version of the plaintiff. The above referred admissions made by the defendant make it crystal clear that the defendant is the absolute owner of the property. Since the defendant asserted that she is owner of the property there is no need to make her sons as parties to this suit.
The crucial aspect is whether the defendant has executed Ex.A1 agreement or not. The specific case of the plaintiff who is examined as PW.1 is that the defendant entered into an agreement to sell the suit schedule land and having taken advance of Rs.1,50,000/- executed Ex.A1 agreement and Ex.A2 receipt. The specific case of the defendant is that she has not executed Ex.A1 and it is a fabricated document. If we closely examine the evidence of DW.1 she admitted that PW.2 is the friend of her elder son and resident of their village. She has not deposed anything against PW.2 in her evidence. In the above circumstances, the evidence of PW.2 becomes important. Admittedly, PW.2 and DW.1 are from the same village. According to PW.2 he knows the plaintiff and the defendant and the suit schedule mentioned property and that the defendant offered to sell the land to the plaintiff at Rs.1,65,000/- per acre and that the total consideration was fixed at Rs.5,52,750/- and that the plaintiff agreed to purchase the same and paid an amount of Rs.1,50,000/- as earnest amount to the defendant and that the defendant executed an agreement of sale and that the defendant agreed to receive the balance sale consideration amount on or before 20th March 2003 and execute a registered sale deed in favour of the plaintiff or his nominee. He further deposed that he himself and B. Prabhakar Reddy (PW.3) are the attestors of Ex.A1. He has denied the suggestion that he is doing real estate business. According to him, the son of the defendant Lingamaiah came to him and informed that they are selling the land and asked him to witness the transaction. This version of PW.2 that the son of the defendant Lingamaiah came to him and asked him to witness the transaction is supported by the evidence of DW.1 herself, since she admitted that PW.2 is friend of her son. Of course, the evidence of PW.2 goes to show that by the time he went there, the family members of the plaintiff already settled the bargain and that the matter on Ex.A1 agreement was already typed. He denied the suggestion that Ex.A1 is a created one. He has also denied the suggestion that the defendant never asked to sell the suit schedule property to the plaintiff and that she has not received the consideration. It appears that there is nothing to disbelieve the evidence of PW.2.
PW.3 is another witness. Of course his cross-examination reveals that his surname and the surname of the plaintiff is one and the same. PW.3 has categorically deposed that the son of the defendant Lingaiah was present on the date of execution of Ex.A1. According to him, the other sons of the defendant were also present. As far as execution of Ex.A1 by the defendant is concerned, the evidence of PWs.2 and 3 corroborate the evidence of PW.1. Ex.A1 bears the signature of Lingamaiah, the son of the defendant, and the signature of Lingamaiah on Ex.A1 lends support to the version of PWs.1 to 3. In the above circumstances, it has to be held that the defendant executed Ex.A1 agreement of sale.
As far as the question as to whether Ex.A3 pertains to some other transaction, the main submission of the learned counsel for the appellant is that as per the terms of Ex.A1 the balance amount has to be paid on or before 20th March 2003 and that, admittedly, no amount was paid by the plaintiff before that date and that Ex.A3 does not refer to Ex.A1 and that it is in favour of G. Sugunamma, wife of the plaintiff, and the plaintiff and, therefore, it appears that it pertains to some other transaction. The recitals of Ex.A3 go to show that on 04.05.2004 P. Lingamaiah and Mahadev, both sons of Bikshapati and Smt. Balamma, wife of Bikshapati, residents of Raviryala, Maheshwaram Mandal passed a receipt in favour of B. Sugunamma, wife of Anjan Reddy and B. Anjan Reddy, S/o late Laxma Reddy, acknowledging the receipt of Rs.2,00,000/- paid as per instalments for purchase of land in Sy.Nos.94 and 95 admeasuring Ac.3-14 cents. It also shows that the remaining amount shall be paid at the time of registration and the registration has to be completed on or before
25th May 2004 and if there is any delay in registering the sale deed by retaining Rs.1,00,000/- remaining amount should be paid to them. It bears the signatures of Lingamaiah and Mahender and thumb impression of Balamma. It is written by one Kandula Bhaskar Reddy. With regard to this document also, the case of the plaintiff is that he has paid an amount of Rs.60,000/- on 22.05.2003 to the son of the defendant and also Rs.2,00,000/- on 04.05.2004. His specific case is that the defendant and her sons on receipt of part of sale consideration passed a separate receipt.
25th May 2004 and if there is any delay in registering the sale deed by retaining Rs.1,00,000/- remaining amount should be paid to them. It bears the signatures of Lingamaiah and Mahender and thumb impression of Balamma. It is written by one Kandula Bhaskar Reddy. With regard to this document also, the case of the plaintiff is that he has paid an amount of Rs.60,000/- on 22.05.2003 to the son of the defendant and also Rs.2,00,000/- on 04.05.2004. His specific case is that the defendant and her sons on receipt of part of sale consideration passed a separate receipt.
The case of the defendant is that of total denial. PW.2 is not an attestor of Ex.A3. PW.3 is an attestor of Ex.A3. PW.3 also deposed that the plaintiff has paid an amount of Rs.2,00,000/- on 04.05.2004 to the defendant and the defendant passed separate receipt acknowledging the said amount. He further deposed that himself and B. Ramesh acted as attesting witnesses to the payment of Rs.2,00,000/- on 04.05.2004. The only suggestion given to this witness is that he has also a partner of the plaintiff in real estate business and that no consideration was made by the plaintiff to the defendant. The evidence of PWs.1 and 3 proves that Ex.A3 receipt is also issued by the defendant. Of course Ex.A3 shows that the receipt is issued in favour of B. Sugunamma the wife of the plaintiff and the plaintiff himself and it is also a fact that he does not specifically refer to the earlier agreement Ex.A1. However, the survey numbers and extent of land as shown in Exs.A1 and A3 are one and the same. It has to be seen that on the top of Ex.A3 it was written as receipt and the recitals go to show that the amount of Rs.2,00,000/- was received as part of instalments. It has to be seen that the total amount of consideration or rate at which the land was sold are not mentioned in Ex.A3. Therefore, it appears that in all probabilities it is only a receipt and the amounts were paid in pursuant to Ex.A1 agreement of sale. Merely because it was obtained in the name of the wife of the plaintiff and also the plaintiff and it bears the signature of the sons of the defendant, it cannot be presumed as a separate agreement. Receipt can be obtained not only by the plaintiff but also by any other person on behalf of the plaintiff. Therefore, I hold that the plaintiff has paid the amount as per the recitals under Ex.A3. Since the defendant has received the remaining balance sale consideration amount on 04.05.2004 it has to be held that the time is not the essence of the contract.
Learned counsel for the respondent has relied on the judgment reported in Raja Ratan Gopal Sainchar (Died) and others v. Rajendra Prasad[4], wherein this Court held that acceptance of the money after the stipulated time would itself show acquiescence of the defendant that sale deed would be effected after that date. Reliance is also placed on Motilal Jain v. Ramdasi Devi (SMT) and others[5], wherein it was held that where major portion of the sale consideration was paid the willingness of the plaintiff to pay the remaining amount is apparent.
The further case of the plaintiff is that he has paid an amount of Rs.60,000/- to Mahender one of the sons of the defendant on 22.05.2003. His case is that it is also a part of sale consideration amount. It is styled as receipt. In fact it is a promissory note proforma. The word promissory note is struck off. The recitals of Ex.A4 further go to show that as a part of sale consideration amount Mahender received an amount of Rs.60,000/-. It does not bear the signature of the defendant. It appears that the plaintiff has paid an amount of Rs.60,000/- to Mahender, the son of the defendant under Ex.A4 and there cannot be any doubt about the same. Of course same is also deposed by PW.3. The contention of the plaintiff that he paid Rs.60,000/- towards part of sale consideration cannot be presumed as false contention, but at the same time since Ex.A4 does not bear the thumb impression of the defendant it cannot be said that the amount under Ex.A4 is received by the defendant. In the above circumstances, it has to be held that the defendant has not received Rs.60,000/- as per the recitals of Ex.A4. Thus, the total amount paid by the plaintiff comes to Rs.1,50,000/- and Rs.2,00,000/- i.e., Rs.3,50,000/- and therefore the plaintiff has to pay the remaining balance of sale consideration amount which comes to Rs.2,02,750/- (Rs.5,52,750/- - Rs.3,50,000/-). In the facts and circumstances of the case, I am of the view that the decisions relied on by the learned counsel for the appellant reported in P. Prabhakar Rao v. Y. Venkata Mohan Rao (1 supra) and Lourdu Mari David v. Louis Chinnaya Arogiaswamy (2 supra) are not applicable to the facts of the present case. In those cases the Court found that the plaintiff had set up a false case of payment of sale consideration. Since herein the claim of the plaintiff that he paid amount under Ex.A3 cannot be presumed as false contention, the above referred decisions are not applicable to the present case.
Of course there is another problem, that is Ex.A3 was executed on 04.05.2004, but the stamp paper under Ex.A3 seems to have purchased by the plaintiff on 05.02.2003. The learned counsel for the appellant has relied on the decision reported in Ramanivas Gupta v. Maliram (3 supra). In that case, the stamp paper was purchased for the benefit of another person. Here in this case the stamp paper is purchased in the name of the plaintiff himself. In that case the agreement of sale was found to be brought into existence with an ante date and moreover in that case the plaintiff filed to produce account books and income tax returns though contended that he had shown the amounts made under agreement of sale in the income tax returns and the account books. Thus, it appears that the facts of that case are entirely different.
Each case has to be decided on its own facts and circumstances of the case. As seen from the evidence of DW.1 she has admitted that she came to know about Ex.A1 agreement when she received legal notice. According to her she had informed her sons about the said notice and her sons and advocate informed her that they need not give any reply to the said notice. Thus, it is clear that DW.1 has received the legal notice and when she received legal notice she came to know about the allegations made by the plaintiff that she executed Ex.A1 agreement of sale. In all probabilities, if at all Ex.A1 is not a genuine document, the defendant (DW.1) could not have kept quiet and she would have given a suitable reply to the plaintiff. This circumstance also supports the case of the plaintiff.
It is a fact that the hand writing expert did not compare the thumb impressions of the defendant with the admitted thumb impressions. He has not given any specific opinion. Even if the opinion of hand writing expert is taken into consideration the same cannot destroy the case of the plaintiff and on the basis of the same it cannot be said that the version of the plaintiff is false.
The learned counsel for the appellant has relied on a judgment reported in S. Kanaka Durga Manikyhamba v. Ramapragada Surya Prakasa Rao (died) by LRs[6]. In that case the agreement of sale was entered into in the year 1984. A suit was filed in 1997 i.e., 12 years after the date of agreement. This Court observed that the plaintiff was under an obligation to explain as to how the suit was filed within the limitation. In this case the agreement of sale is dated 22.12.2002. Part payment of sale consideration was made on 04.05.2004 and legal notice was issued on 02.08.2005. Therefore, it cannot be said that the suit is barred by limitation. In the circumstances, the above referred case is not applicable to the facts of the present case.
Learned counsel for the appellant has also relied on the judgment in Pamarti Venkayamma v. Koppisetty Venkata Ratnam[7]. In that case this Court observed that the conduct of the parties and circumstances and surrounding circumstances should be considered. There cannot be any dispute about the principle laid down in that case. The appellant has also relied on a decision reported in G. Veera Brahmam v. Gopalapuram Sammakka[8]. In that case the agreement of sale was dated 02.04.1986, part payments were made on 30.04.1990 and 30.11.1992 and the suit was filed on 31.03.1994, nearly 8 years from the date of agreement. In the above circumstances, it was held that even where plea of limitation was not raised, a duty cast upon the Court to consider the plea of limitation. Reliance is also placed on a decision reported in Ram Kumar Agarwal v. Thawar Das (dead) through LRs[9], wherein the Apex Court held that a person who falsely claims to have paid a sum of money and attempts to prove the same at trial stage, cannot be said to have been ever ready and willing to pay the sum due under the contract in question. Reliance is also placed on a decision reported in Chodi Mahalakshmi v. Koppada Sathiraju[10], wherein this Court observed that proof of execution of agreement of sale is not sufficient and that the person relying upon such document must further establish that executant affixed his signature after knowing the contents thereof. In this case it has to be seen that Ex.A1 bears the signature of Lingamaiah one of the sons of the defendant. Ex.A3 also bears the signatures of both Lingamaiah nd Mahender, the sons of the defendant. In that case there is no other evidence to prove the execution of agreement or probability of its execution for consideration as alleged by the plaintiff. It was further held that false plea of payment of sale consideration disentitles the plaintiff on equitable relief of specific performance.
In the circumstances, I hold that there are no merits in the appeal and the same is liable to be dismissed. In view of the delay for whatever reason it may be and in view of the abnormal increase in the value of lands the plaintiff further directed to pay a sum of Rs.1,00,000/- (Rupees One Lakh) to the defendant in addition to the balance of sale consideration amount.
Accordingly, the Appeal Suit is dismissed. However, in view of my above findings, the impugned judgment and decree passed by the lower Court is modified directing the defendant to execute sale deed within a period of 90 days from the date of receipt of a copy of this judgment by receiving the balance sale consideration of Rs.3,02,750/- (Rupees Three Lakhs Two Thousand Seven Hundred and Fifty only) from the plaintiff. The plaintiff is also directed to deposit the balance sale consideration of Rs.3,02,750/- (Rupees Three Lakhs Two Thousand Seven Hundred and Fifty only) within 60 days from the date of receipt of a copy of this judgment. There shall be no order as to costs.
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B. CHANDRA KUMAR, J.
Date: 27th December 2012
Nsr
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