- (1.) Leave granted.
(2.) Appellant is the owner of a cinema theatre. An agreement of sale dated 28.03.2001 was entered into by and between the parties hereto in respect of the said property for a consideration of Rs. 64 lakhs. Respondent made part payment of Rs. 32,97,000/- of the said amount. A suit for specific performance of the contract was filed as no deed of sale was executed in terms of the said agreement dated 28.03.2001.
(3.) During hearing of the said suit, a receipt was filed showing payment of a sum of Rs. 4,03,000/- to the appellant herein. The said receipt was marked as Exhibit A.15. On the said basis, allegedly, possession of the theatre was obtained by the respondent. The learned Trial Judge, however, dismissed the said suit by an order dated 29.04.2006 inter alia opining: "45. Therefore, in the circumstances I find that there is no evidence produced by the plaintiff which is sufficient to outweigh the opinion and the evidence of D.W.4. Further it is to be seen that though after execution of Ex. A.15 he came to know about huge debts by defendant under the said mortgage deeds, taxes dues and other statutory liabilities and that defendant were not cooperating and adopted evasive attitude in clearing the debts, dues and other liabilities and were not allowing him to discharge the mortgage debt to the Union Bank of India, he kept quite till filing of the suit, without even issuing a notice to the defendant. Even if he was in possession as claimed by him with effect from the date of Ex.A.15, in view of the huge debts and liabilities, which to his knowledge the defendant was not in a position to discharge and not making any efforts to discharge the same he would not have kept quite in the normal circumstances without issuing any notice to the defendant. Thus there is no mention about this Ex.A.15 dated 18.09.2002 in the written form anywhere till he filed the plaint on 05.12.2002. Therefore, these circumstances also render the oral evidence of P.W.1 and P.W.2 highly doubtful on this aspect. Therefore, in these circumstances I find that the evidence of D.W.4 and the contents of Ex.C.4 opinion and Ex.C.5 reasons for opinion are sufficient to prove that the signature of D.W.1 is forged in Ex.A.15. Therefore in the circumstances it shall be held that the contention of the plaintiff and the evidence of P.W.1 that on 18.09.2002 he paid Rs. 4,03,000/- towards part of sale consideration and D.W.1 delivered possession of plaint schedule theater to him is not true. Therefore, in the circumstances it also shall be held that the plaintiff failed to prove that he came into possession of the plaint schedule property in pursuance of the part performance of the contract covered by Ex.A.4." It was furthermore opined: "Therefore, following this decision of the Honourable High Court of Andhra Pradesh it shall be held that the plaintiff, since failed to prove that he paid Rs. 4,03,000/- towards part payment of sale consideration of D.W.1 and she delivered possession of plaint schedule to him on 18.09.2002 and passed Ex.A.15 receipt. It shall be held that though the time is not the essence of the contract and the plaintiff is justified in not making further remaining part of sale consideration by 31.12.2001, since he approached the court with unclean hands he cannot be granted a decree for specific performance. Since it is a specific case that he came into possession of plaint schedule property in part performance of Ex. A.4 agreement of sale, on 18.09.2002 under Ex. A.15 and failed to prove the same, it is irrelevant and not necessary to decide how he came into possession of the plaint schedule property. Therefore, in the circumstances he is also not entitled for protection under section 53-A of Transfer of Property Act and hence is not entitled to seek perpetual injunction." ;