Decided on October 11,1963



Kumarayya, J. - (1.) This appeal is directed against the Judgment and Decree of Fourth Additional Judge, City Civil Court, Hyderabad, in O.S. No. 30 of 1958. That suit was for specific performance of contract of sale in relation to plots of land of which the plaintiff happened to be the hightest bidder in public auction. The relief claimed by him was that, the defendants be directed to execute a sale deed duly registered in his favour and deliver vacant possession of the suit plots Nos. 2 and 3 to him and also pay mesne profits accrued meanwhile. The learned Judge did not grant the relief prayed for, but granted a money decree instead, representing compensation amount for breach of contract, as contemplated by section 19 of the Specific Relief Act and also expenses of notice incurred by the plaintiff. The plaintiff has therefore come up in appeal.
(2.) The facts of the case may be shortly stated. Defendants Nos. 1 and 2, through their authorised auctioneer, defendant No. 3, put their plots at Narayanguda opposite to the Deepak Mahal Talkies, to public auction. Plots 1 and 4 were first taken up and one Harprasad became the highest bidder therefor. The suit plots. 2 and 3, thereafter were knocked down in favour of the plaintiff, who happened to be the highest bidder at Rs. 12,000. A haraj-patti (auction list-Exhibit P-5) was formally drawn at the time of bidding, which would show that the auction was finalised at that bid. The plaintiff immediately offered to pay the earnest money in terms of the auction sale (Exhibit P-6), but the defendants told him that it will 'be accepted along with the one-fourth money regarding plots 1 and 4, payable by Harprasad, later on. The plaintiff offered the amount for a second time the very next day to defendant No. 3, who took him to defendant No. 1. Defendant No. 2 also was present at that time. The first defendant refused to accept the earnest money, on the ground that the auction was not finalised, and asked the plaintiff to do what he liked. In vain did the plaintiff thereafter give notice, Exhibit P-3(1) dated 3Oth August, 1954, to the third defendant and sent copies thereof to the other defendants, calling upon them to obtain from him the one-fourth amount of earnest money within 24 hours and pass a receipt therefor and accept the balance within a period of one week thereafter in accordance with the conditions of the auction sale, Exhibit P-6, and execute a sale deed duly registered in favour of the plaintiff. He made it clear that if they failed to do so they would be liable for all costs of litigation besides damages. Defendants Nos.1 and 2 did not choose to give any reply.
(3.) Defendant No. 3, however, sent his reply informing him that he accepts all the facts given in the notice as correct but that since defendants 1 and 2 are refusing to accept the amount and give effect to the transaction, he was helpless in the matter and cannot therefore, obtain the earnest money from the plaintiff and get the sale deed executed and registered. Clear and unequivocal though the denials appeared to be, the plaintiff's case is that, he could not immediately resort to legal remedy, as he was greatly worried sue to the serious and continued illness of his wife. At that troubled moment he had also to suffer the mortification of his residential house being brought to the ground by the Municipality after the latter had given previous notice of the same. However, a few months after the notice, on 13th April, 1955, when he was going towards Secunderabad, to his surprise he found that the foundations were being laid and construction was being raised on the suit plots. Defendant No.1 was at the spot. He immediately remonstrated why he was raising the construction on plots auctioned to him. The first defendant reiterated his determination that he would not give the plots to him and that it was open to the plaintiff to move the way he liked in the matter. Five days thereafter, on 18th April, 1955, the plaintiff brought the suit and applied for a temporary injunction restraining the defendants from raising the construction.;

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