Bangalore District Court
In Sri. Manju vs In Sri. Palani Swamy on 22 April, 2015
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
Dated this the 22nd day of April 2015.
PRESENT: S.V.KULKARNI, B.Com., LLB(Spl)
XI Addl.City Civil Judge, B'lore city.
O.S.No.5737/2008 C/W 5738 of 2008
C.C.H.8
Plaintiff in Sri. Manju
both suits: S/o Late Malleshaiah,
aged about 45 years,
Residing at No.200,
Halage Vaderahalli village,
Kengeri Hobli, Bangalore South Taluk
(By Sri.R.N., Advocate)
: Vs :
Defendant in Sri. Palani Swamy
O.S.No.5737 of son of Sri. Savi Gounder,
2008: aged about 48 years,
Residing at I.M.Perumal Pati(Post)
Palayur,
Selam-5
Presently residing at No.62/5
2nd Cross, Venkateshwara Layout,
Siddaguntepalya, D.R College Post,
Bangalore-29
(By Sri. T.S. Advocate)
2 OS. No.5737 of 2008
C/w O.S. No. 5738 of 2008
Defendant in Smt. Chinna Ponnu, D/O Mari
O.S.No.5738 of Muthu, aged about 38 years, residing
2008: I.M.Perumal Pati(Post) Palayur,
Selam-5
Presently residing at No.62/5
2nd Cross, Venkateshwara Layout,
Siddaguntepalya, D.R College Post,
Bangalore-29
(Sri. T.S. Advocate)
Date of the institution of 26.08.2008
both the suits:
Nature of the suit in both Specific performance
the suits:
Date of the commencement 8.4.2011
of recording of the evidence
in both the suits:
Date on which the judgment 22.4.2015
was pronounced in both the
suits :
Total Duration in both the Year/s Month/s Day/s
suits 06 07 26
XI Addl.City Civil Judge,
B'lore city.
3 OS. No.5737 of 2008
C/w O.S. No. 5738 of 2008
COMMON JUDGMENT
The plaintiff has filed these two suits against defendant in respective suits, who are husband and wife respectively for the relief of specific performance of contract in respect of sale agreement dated 13.2.2006, wherein plaintiff has prayed for grant of specific performance relief based upon alleged agreement of sale and also prayed for grant of injunction relief not to alienate the suit schedule property and if courts comes to the conclusion that sale agreement cannot be enforced in that suit, plaintiff has prayed for alternative relief of refund of advance sale consideration amount along with interest at 24% p.a including the costs of the suit.
2. The counsel for defendant filed application in I.A.No.3 under Sec. 151 of CPC on 10.9.2013 seeking for clubbing of O.S. No.5738 of 2008 in O.S. No.573 of 2008 for which, the advocate for plaintiff submitted no objections . Hence, I.A.No.3 came to be allowed and O.S. No.5738 of 2008 is clubbed in O.S. No.5737 of 2008. Accordingly, I.A.No.3 is disposed off.
3. The case of the plaintiff as made out in respective plaint filed herein briefly stated as follows:-
4 OS. No.5737 of 2008C/w O.S. No. 5738 of 2008 The plaintiff has pleaded in his plaint averments in O.S.No.5737 of 2008 filed against defendant Sri.Palani Swamy in respect of the suit schedule property as described in the schedule annexed to the plaint, which reads as follows:-
In O.S.No.5737 of 2008 Item No.1:
SCHEDULE All the piece and parcel of properties bearing northern portion of House List No.146/1-F3 katha No.589/1, new katha No.383/494/81 measuring east-west 60 ft., and north-south 45 ft., situated at Hulimavu village, Begur Hobli, Bangalore South Taluk, Bangalore and bounded as under:-
East by: Site No.3 and 4;
West by: D.Nagaraj's property , North by: Private property , and South by: Remaining portion of the same property.
Item No.2:
SCHEDULE All the piece and parcel of properties bearing north- western portion of House List No.146/1-F katha No.589/1, measuring east-west 50 ft., and north-south 45 ft., situated at 5 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 Hulimavu village, Begur Hobli, Bangalore South Taluk, Bangalore and bounded as under:-
East by: Remaining portion of the same property belongs to Chinna Ponnu;
West by: Road , North by: Private property , and South by: Remaining portion of the same property.
In O.S.No.5738 of 2008 SCHEDULE All the piece and parcel of property bearing House No.146/1-F katha No.589/1, measuring east-west 50 ft., and north-south 45 ft., situated at Hulimavu village, Begur Hobli, Bangalore South Taluk, Bangalore and bounded as under:-
East by: Property No.2 West by: 3 ft., passage and remaining portion of the same property belongs to Palani swamy, North by: Private property , and South by: Remaining portion of the same property.
and this property is the subject matter of the suit in O.S.No.5737 of 2008 and in respect of connected suit O.S.No.5738 of 2008, it is filed against defendant namely Smt. Chinna Ponnu, who is the wife of the defendant in O.S.No.5737 of 2008 in respect of the suit schedule property as described in the annexed schedule of the plaint in respect 6 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 of house property bearing House List No.146/1-F katha No.589/1, measuring east-west 50 ft., and north-south 45 ft., and House No.146/1F, katha No.589/1, measuring east- west 50 ft., and north-south 45 ft., situated at Hulimavu village, Begur Hobli, Bangalore South Taluk, Bangalore.
It is the case of the plaintiff that defendant is the absolute owner in possession and enjoyment of the properties bearing northern portion of house List No.146/1- F3 katha No.589/1, new katha No.383/494/81 measuring east-west 60 ft., and north-south 45 ft., situated at Hulimavu village, Begur Hobli, Bangalore South Taluk, Bangalore, which is fully described in the schedule of the plaint and this property referred to as schedule property and in respect of connected suit, the plaintiff stated that defendant is the absolute owner and in possession and enjoyment of the property as shown in the plaint schedule bearing house List No.146-1F, Katha No.589/1 measuring 32 50 ft., and north-south 45 ft situated at Hulimavu village, Begur Hobli, Bangalore South Taluk, Bangalore, which is morefully described in the schedule and herein after referred to as schedule property.
It is the case of the plaintiff in O.S.No.5737 of 2008, the defendant being in need of funds to meet out his family 7 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 and legal necessities offered to sell the suit schedule property in his favour and considering the offer made by the defendant and after due negotiations held, the plaintiff agreed to purchase the schedule property for total sale consideration amount of Rs.64,35,000/- and he entered into agreement of sale with defendant on 13.2.2006 and in between plaintiff and defendant agreement of sale came to be executed and plaintiff had paid a sum of Rs.15-00 lakhs by way of cash to the defendant and defendant acknowledged the receipt of this amount from the plaintiff on 13.2.2006 and agreed to receive balance sale consideration amount within 9 months from the date of agreement of sale subject to production of title documents and other documents required for registration of the sale deed and defendant agreed to convey sale deed within 9 months from the date of execution of agreement of sale and it is admitted by defendant that his wife and children have to affix their signatures as consenting witnesses to the execution of the sale agreement in favour of plaintiff. As per the terms of agreement, 9 months time was stipulated for execution of sale deed and plaintiff was always ready and willing to perform his part of contract and ready to pay the balance sale consideration amount and to get the sale deed executed in his name and plaintiff requested the defendant to receive the balance sale consideration amount and to execute sale deed by defendant avoiding to receive the amount from 8 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 the plaintiff by giving evasive answers and went on postponing execution of sale deed in one or the other pretext. The plaintiff further stated that the defendant did not cooperated with him for execution of the sale deed and went on postponing to execute regular sale deed, wherein plaintiff constrained to cause legal notice dated 7.12.2006 sent through RPAD/UCP to the defendant calling upon the defendant to execute the sale deed within 15 days by receiving balance sale consideration amount after receipt of notice within 15 days from that date. The notice sent to the defendant through RPAD as well as UCP was duly served upon him, wherein the defendant after receipt of legal notice replied the notice issued by the plaintiff by giving untenable reply stating that defendant has borrowed a sum of Rs.20-00 lakhs as hand loan from the plaintiff and signature of defendant and his family members were taken on blank papers, which is false and fabricated story created by the defendant to suppress the fact of execution of sale agreement in favour of plaintiff. The defendant has replied the notice vide reply notice dated 13.12.2006. Thereafter, at the intervention of their elders and well wishers and panchayathdars, wherein defendant approached the plaintiff and informed him that he is ready to execute the sale deed, but the property situated within old C.M.C limits, now the said property is included within BBMP limits by the 9 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 Government and katha of the property is yet to be transferred in his name and further there is restriction on the registration of the schedule property based on Form No.9 and 10 by the Government. Hence, one the properties are regularized under the "Akrama-Sakrama" scheme introduced by the Government of Karnataka by including the area under BBMP jurisdiction wherein the defendant has to execute registered sale deed in favour of plaintiff. The plaintiff believing the words of defendant waited for transfer of katha in his name and for regularization of schedule property under the scheme called "Akrama-Sakrama" and recently, the plaintiff approached the defendant and enquired about the status of the schedule property with balance sale consideration amount, but defendant once again started to give evasive reply and avoiding to meet the plaintiff and to receive the amount towards balance sale consideration amount and to execute registered sale deed in favour of plaintiff. Plaintiff pleaded his readiness and willingness in paying balance sale consideration amount in para No.12 of the plaint and plaintiff made allegations with defendant failed to comply with demands made by him and failed to perform his part of contract and committed breach of contract terms and plaintiff also made allegations that the defendant is making hectic attempt to sell away the said schedule property to 3rd parties for higher price in view of the recent 10 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 hike of prices of immovable properties in and around the schedule property. Hence in the circumstances, the plaintiff had no other go except to file the suit for specific performance of contract against defendant seeking direction to the defendant to execute registered sale deed and in over all the title deeds of the schedule property in favour of plaintiff and also possession of the schedule property in favour of plaintiff after execution of the sale deed and plaintiff has disclosed cause of action in para No.13 of the plaint to file the suit. Hence, plaintiff has filed this suit for specific performance of contract against defendant in main suit in O.S.No.5737 of 2008.
4. The plaintiff has averred in connected suit his pleadings contending that defendant being a need of funds to meet her family and legal necessities offered to sell the schedule property for sale in favour of plaintiff, wherein there was offer and acceptance between plaintiff and defendant after negotiations for sale held, wherein the plaintiff agreed to purchase the schedule property for sale consideration amount of Rs.29,25,000/- and he entered into agreement of sale with defendant on 13.2.2006, wherein plaintiff has paid advance sum of Rs.5-00 lakhs by way of cash to the defendant acknowledged the earnest amount received from the plaintiff of Rs.5-00 lakhs and executed sale agreement agreeing to 11 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 execute the sale deed within 9 months from the date of its execution subject to production of all legal title documents and also required documents of the registration of the sale deed to the plaintiff . The plaintiff offered that always ready and willing to perform his part of contract and ready with balance sale consideration amount for payment to defendant. But defendant though promised to execute sale deed, but defendant went on postponing to execute the sale deed in one or the other pretext and looking to the attitude and conduct of the defendant in prolonging the matter without execution of the sale deed, wherein plaintiff constrained to cause legal notice dated 7.12.2006 sent to the defendant by RPAD /UCP calling upon her to execute sale deed within 15 days from the date of receipt of legal notice and the said notice was duly served upon defendant, wherein defendant has sent untenable reply vide reply notice dated 13.12.2006,wherein defendant in her reply notice contended that the defendant's husband has borrowed a sum of Rs.20-00 lakhs as hand loan and in this regard signatures of defendant and her family members were taken on blank papers, which is false and fabricated story created by the defendant in suppression of true facts of execution of sale agreement in favour of plaintiff. Plaintiff further stated that after intervention of well wishers and panchayathdars, the defendant approached the plaintiff and agreed to execute 12 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 sale deed, but the property is situated within C.M.C limits and katha of the property is yet to be transferred in her name and also further there is restriction on the registration of the schedule property based on Form No.9 and 10 by the Government of Karnataka and once the property is not regularized under the scheme of "Akrama-Sakrama"
introduced by the Government of Karnataka, wherein the area of schedule property included in BBMP jurisdiction. Hence, defendant shall have to execute registered sale deed in favour of plaintiff . The plaintiff waited for long time hoping that defendant would execute sale deed after transfer of katha in her name and plaintiff approached the defendant and enquired about the status of the schedule property with balance sale consideration amount, wherein the defendant again started to give evasive answers/reply and she is avoiding to meet the plaintiff and to receive balance sale consideration amount and plaintiff stated that he was always ready and willing to pay balance sale consideration amount of Rs.24,25,000/- and to meet out registration expenses and to obtain sale deed executed through defendant and inspite of legal notice, the defendant failed to comply the request/demand made by the plaintiff. Hence, plaintiff constrained to file the suit for specific performance of contract against defendants respectively in both the cases based upon alleged agreement of sale dated 13.2.2006.13 OS. No.5737 of 2008
C/w O.S. No. 5738 of 2008
5. In response to the suit summons issued by this court, defendant and his wife appeared in both the cases and defendant and his wife have filed written statement in both the suits separately, wherein defendants in their written statement denied the averments that they offered the schedule property for sale in favour of plaintiff on 13.2.2006 and plaintiff agreed to purchase the schedule property for total sale consideration amount of Rs.64,35,000/- and in another case, the plaintiff agreed to purchase the schedule property for total sale consideration amount of Rs.29,25,000/- and further defendant denied the receipt of Rs.15-00 lakhs as advance amount by way of cash and also in connected suit, the defendant denied the receipt of Rs.5-00 lakhs towards earnest money and further defendants have denied the readiness and willingness averments made by the plaintiff and hence, defendants in their written statement contended that there exists loan transaction and defendants never intended to sell the schedule property in favour of plaintiff, wherein the defendant and his wife and children of the defendant have executed documents in respect of loan transaction, wherein defendants have denied the plaint averments as stated by the plaintiff in respect of execution of sale agreement dated 13.2.2006, wherein defendants have admitted that there was 14 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 exchange of legal notice dated 7.12.2006 and they have replied the notice issued by the plaintiff by giving reply notice dated 13.12.2006 and defendants contended that in the reply notice, they have informed the plaintiff in respect of the transaction transpired between plaintiff and defendants, wherein as per the contention of the defendants, wherein the defendants asked for financial help to plaintiff of Rs.20-00 lakhs, wherein the plaintiff had agreed to lend money in case, defendants executes documents and to furnish the documents by signing blank stamp papers, which are to be returned after the payment of loan and believing the words of the plaintiff, he handed over blank stamp papers to the defendants and accordingly, the defendants have signed the blank stamp papers as insisted by the plaintiff for grant of release of loan and hence, defendants contended that he never agreed before the plaintiff for returning of his original agreement and also defendants never offered to sell the schedule property and defendants further contended that the real estate business has gone to its peak stage during 2006 and touching the value of the landed properties nearly several crores of rupees, wherein it appears that plaintiff had also taking valuation of the properties and their escalation and taking into consideration, he converted the blank signed documents ( stamp papers) of defendant and that of his wife and had fabricated the said document as agreement of sale 15 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 as if it was entered on 13.2.2006 and defendant in both the written statement have denied the execution of alleged sale agreement in favour of plaintiff on 13.2.2006 agreeing to sell the schedule property in favour of plaintiff and defendants in both the cases contended that they are ready to return the loan amount of Rs.20-00 lakhs with bank rate of interest and this fact has been made clear by them in reply notice, but still plaintiff is depending upon forged and fabricated document and has filed this false suit against defendants and it is admitted by the parties that there is exchange of legal notice issued by the plaintiff and defendants have replied the notice vide reply notice dated 13.12.2006. Hence, defendants in both the cases in written statement have denied the execution of sale agreement in favour of plaintiff and on the contrary, defendants contended in both the cases that there exists a loan transaction and has insisted by the plaintiff, the defendant and his family members including children of plaintiff and defendants have agreed to execute the blank signed stamp papers as they are in diary need of money for their legal and family necessity and hence, defendants contended that the alleged transaction entered into dated 13.2.2006 is not one for sale agreement and it is only a security for the loan obtained by the defendant and his wife and defendants in para No.11 of their written statement disclosed true case of the defendant as contending that 16 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 defendant is having work shop, wherein he undertake to repairs the lorry, sprint work, wherein a lorry owner by name one Sri.Chandrashekar used to get the work of his lorry with this defendant for the last 5-6 years, wherein the plaintiff used to leave his vehicles for repairs in the garage of defendant and used to leave the vehicles for nearly 5-6 days for their repairs and even though there was delay in attending the repairing work, he never bothered, but used to insist the defendant to attend his work personally and when this being the situation, wherein the friendship between plaintiff and defendant developed. In the month of February 2006 all of a sudden the health of mother of defendant had became critical and he was forced to attend to her in his native place and at the same time, the vendor of the land to this defendant insisted forthwith to clear of the small balance, which was due to pay to him pertaining to the suit schedule property and defendant was a need a sum of Rs.20-00 lakhs to meet out his legal necessities expressed his willingness and financial constraints with the aforesaid Sri. Chandrashekar and defendant contended that after hearing the words of defendant and by understanding his financial constraints, wherein plaintiff agreed to give loan of Rs.20-00 lakhs and told that he has borrow the said amount from others and this defendant himself offered some documents as security for the loan, wherein the said 17 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 Sri. Chandrashekar insisted to affix his signatures on blank stamp papers and insisted to get the signatures of children of defendant on two stamp papers and as such, alleged signatures with the signature of his wife and children on another two stamp papers were asked to do and to hand over these papers as security documents for the loan availed for Rs.20-00 lakhs as this defendant was need of loan amount and on the assurance of his friend that the blank signed stamp papers will be returned after loan amount is cleared. Hence, defendant denied the plaint allegations in toto and defendant has set up a specific defence that he had raised loan of Rs.20-00 lakhs and plaintiff has obtained these documents for security purpose of the loan advance to the defendant and hence, defendant has denied the entire claim of plaintiff in both the cases set up for specific performance relief and hence, defendants of both the cases have filed their separate written statement denying the plaint allegations in toto and also specifically contended that there exists loan transaction in between plaintiff and defendant and as such, defendants have denied the allegations of plaint that there exists a sale agreement for sale of schedule property involved in both the suits. Hence, defendants in both the cases have filed their respective written statement and prays for dismissal of the suit with costs in the interest of justice and equity.18 OS. No.5737 of 2008
C/w O.S. No. 5738 of 2008
6. Based upon these pleadings, the following issues are framed for trial in both the suit :-
In O.S.No.5737 of 2008
1. Whether the plaintiff proves that the defendant has entered into an agreement to sell the suit schedule property in his favour for consideration of Rs.64,35,000 and received a sum of Rs.15 lakhs as advance and executed an agreement of sale dated 13-2-2006?
2. Whether the plaintiff proves that he has always been ready and willing to perform his part of contract?
3. Whether the plaintiff is entitled for the relief of specific performance of contract?
4. Whether the plaintiff is entitled for the alternative relief of the refund of the advance amount with interest 24% per annum?
5. What decree or order?
In O.S.No.5738 of 2008
1. Whether the plaintiff proves that the defendant has entered into an agreement to sell the suit schedule property in his favour for consideration of Rs.29,25,000 and received a sum of Rs.5 lakhs 19 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 as advance and executed an agreement of sale dated 13-2-2006?
2. Whether the plaintiff proves that he has always been ready and willing to perform his part of contract?
3. Whether the plaintiff is entitled for the relief of specific performance of contract?
4. Whether the plaintiff is entitled for the alternative relief of the refund of the advance amount with interest 24% per annum?
5. What decree or order?
7. In order to prove the above issues, the plaintiff himself is examined as PW.1 in both the cases and got marked Ex.p.1 to P.5 through his evidence and closed side and defendant No.1 in O.S.No.5737 of 2008 is examined as DW.1 and in his evidence, Ex.D.1 to D.27 are marked and closed his evidence, Thereafter, the suit is posted for arguments.
8. The learned counsel appearing for the plaintiff in both the cases has filed written arguments in support of the case filed by the plaintiff on 13.3.2015 and counsel for plaintiff relied upon one decision reported in 1982(1) KLJ page 385 (D.B) in respect of Sec,.20 of Specific Relief Act and learned 20 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 counsel appearing for defendant in both the suits argued orally in respect of these two suits.
9. After hearing the arguments of both sides and after perusal of the written arguments filed on behalf of plaintiff and on appreciation of oral and documentary evidence placed on record and after considering the evidence of P.W.1 and D.W.1 and Ex.P.1 to P.4 filed in both the cases marked for the plaintiff and after scrutiny of Ex.D.1 to D.27, I answer the above issues are as follows:-
Issue No.1 and 2 In negative in both the cases:
Issue No.2 in both Partly affirmative and partly the cases: negative Issue No.3 in both In negative the cases:
Issue No.4 in Partly affirmative and partly
both the cases: negative
Issue No.5 in both The suit of the plaintiff filed theses: for the relief of specific performance deserves to be rejected, wherein plaintiff is entitled for recovery of Rs.20-00 lakhs paid to the defendant with reasonable interest at the rate of 18% p.a from the date of lending i.e., from 13.2.2006 till 21 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 the date of suit and plaintiff is entitled to recover the amount from the date of suit till realization at same rate of interest including the costs of the suit and suit deserves partly decreed with costs for the following reasons:-
REASONS
10. Issue No.1 and 2 in both the cases: It is the specific case of the plaintiff that defendant in O.S.No.5737/2008 is the husband of defendant in O.S.No.5338/2008 wherein defendant in both case are absolute owners of suit schedule property have offered to sell their property for sale as both the defendants, who are spouse are in need of finance for their legal and family necessity in the year 2006 and after sale negotiations held, the plaintiff agreed to purchase the suit schedule property at the rate of Rs.1300 per sq feet for Rs.64,35,000/- and for Rs.29,25,000/- respectively and plaintiff agreeing to purchase the suit schedule property has paid earnest money of Rs.15,00,000/- to defendants Sri S. Palaniswamy defendant in O.S.No.5737/2008 and paid Rs.5-00 lakhs to his wife Smt. Chinnaponnu, defendant in O.S.No.5738/2008 and it was agreed to pay balance sale consideration amount at the time of registration of sale deed and 9 months time was 22 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 agreed to convey sale deed by the defendants. It was also agreed to hand over all original documents at the time of execution of sale deed and defendants have agreed to convey sale deed after getting changed their khata in the BBMP received as suit schedule property comes within the jurisdiction of BBMP during the year 2006 and till then, khata of the suit schedule property was standing in the name of defendant and his wife in CMC records of Bommanahalli. Plaintiff averred his readiness and willingness to obtain sale deed execution from defendants. But defendants have not come forward to execute the sale deed. Hence, plaintiff replying upon legal notice dated 07.12.2006 caused to defendant/his wife and they replied the legal notice vide reply notice dated 13.12.2006 and they denied execution of sale agreement dated 13.02.2006 in favour of plaintiff in their reply notice and defendants have falsely contended that they have barrowed hand loan of Rs.20-00 lakhs for their need and defendant/his wife contended that they have never intended to sell the suit schedule property in favour of plaintiff and defendants in both cases contended specifically that in the year 2006 during February defendant's mother fell sick and he is need of money for her treatment and vendor of defendant insisted for payment of balance sale consideration amount hence defendant availed hand loan of Rs.20-00 lakhs from plaintiff through mediator of one Sri P. Chandrashekar 23 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 of Gottigere with whom the defendant had acquaintance as P. Chandrashekar of Gottigere had a lorry and he used to approach the defendants lorry work shop for repairs. Hence, defendant contended that he approached his friend P. Chandrashekar of Gottigere for financial assistance during February 2006. But he did not lend the loan and assured of lending loan through somebody and he informed through plaintiff herein is ready to lend loan of Rs.20-00 lakhs subject to certain conditions of execution of signatures of defendant and his wife and children on two sets of blank stamp papers towards security purpose and there only he will advance amount and for that condition, defendants agreed to execute blank stamp papers containing signature of defendant, his wife and children as consenting witnesses and accordingly defendant has handed over blank stamp documents duly signed by him, his wife and his children and handed over to plaintiff through P.Chandrashekar of Gottigere and thereafter plaintiff released the amount as loan. Hence defendants in both cases admitted availment of Rs.20,00,000/- as hand loan from plaintiff on 13.02.2006. But defendants have specifically contended that they do not have any intention to sell the suit schedule property. But plaintiff due to increase of value of immoveable property in the year 2006 within Bangalore city limits has created the suit documents to suit his purpose and created the 24 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 documents as agreement of sale. Hence defendants have denied that they agreed to sell the suit schedule property in favour of plaintiff on 13.02.2006.Hence question of execution of sale deed not arises and defendants in their written statement contended that they came to know about the alleged agreement of sale relied by the plaintiff only when they received legal notice caused by the plaintiff dated 07.12.2006 and they called upon the plaintiff to avail that of a copy of sale agreement dated 13.02.2006. Hence, defendants have denied execution of any sale agreement by them in favour of plaintiff dated 13.02.2006 in both cases. However, defendants in both the cases contended that the alleged transaction dated 13.02.2006 with plaintiff is only hand loan transaction and not sale transaction in respect of suit schedule property. However, defendants in their reply notice/written statement they admitted/pleaded that they are ready to repay the amount of Rs.20-00 lakhs with bank rate of interest to plaintiff. Hence with this rival contention the parties to the suit have adduced their respective oral and documentary evidence in both the cases.
11. In order to prove the case of the plaintiff, the plaintiff himself is examined as P.W.1 in both the cases, wherein P.W.1 has filed his affidavit evidence deposed by way of affidavit under Order 18 Rule 4 of CPC wherein on perusal 25 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 of the chief examination of P.W.1 filed in both the cases, wherein P.W.1 has reiterated the facts as stated by him in his pleadings filed in both the cases, wherein P.W.1 stated that defendant in O.S.No.5737 of 2008 , who is the owner of the schedule property as described in plaint schedule and as stated in para No.2 of his chief examination affidavit and defendant in connected suit, who is wife of defendant Sri. Palani Swamy is the owner of the suit schedule property one arrayed in O.S.No.5738 of 2008 agreed to sell the schedule properties in favour of plaintiff for their family and legal necessity and as per the sale offer, the plaintiff agreed to purchase the schedule property for sale consideration amount of Rs.64,35,000/- and in connected suit sale consideration amount mutually agreed for Rs.29,25,000/- and defendant and his wife Smt. Chinna Ponnu had executed sale agreement dated 13.2.2006 in favour of plaintiff agreeing to conveying the suit schedule properties owned by them within 9 months by receiving balance sale consideration amount of Rs.49,35,000/- in main case and balance sale consideration amount of Rs.24,25,000/- in connected suit after change of katha in their name in respect of suit schedule properties in the BBMP records and it is the specific case of the plaintiff that defendant, his wife and children have agreed to sing the agreement of sale as consenting witnesses for the sale 26 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 transaction entered into dated 13.2.2006 . Hence, P.W.1 stated that he has paid Rs.15-00 lakhs as earnest amount to defendant Sri. Palani Swamy and in connected suit, he has paid the Evidence Act of Rs.5-00 lakhs by way of cash to wife of defendant namely Smt. Chinna Ponnu and defendant and his wife Smt. Chinna Ponnu have acknowledged the receipt of advance money paid by plaintiff on 13.2.2006 and executed sale agreement, wherein wife and children of Smt. Chinna Ponnu have singed the sale agreement as consenting witnesses and also agreement of sale is attested by two witnesses, one witness brought by the defendant and another witness is one Sri. P.Chandrashekar resident of Gottigere , who is known witness to plaintiff as well as defendant and plaintiff deposed in his affidavit evidence that he caused legal notice dated 7.2.2006 and defendants have falsely replied denying the sale transaction by reply notice dated 13.12.2006 and defendants contended that the transaction dated 13.2.2006 is hand loan transaction and hence, plaintiff relying upon the alleged agreement of sale executed said to have been by defendant Sri. Palani Swamy and his wife Smt. Chinna Ponnu dated 13.2.2006 in respect of suit schedule properties as defendant and his wife refused to execute sale deed in response to alleged sale agreement and after receipt of reply notice dated 13.2.2006 , he constrained to file the suit based upon suit agreement of sale 27 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 and P.W.1 also deposed that right from the day of execution of sale agreements, he is ready and willing to perform his part of contract and averred readiness and willingness in his pleadings as well as oral evidence filed through affidavit evidence under Order 18 Rule 4 of CPC and P.W.1 stated that defendants have committed breach of contract terms and hence, P.W.1 got marked Ex.P.1 to P.5 in his evidence produced by him in both the suits and the said document produced and relied by the plaintiff are as follows:-
Ex.P.1 is Original agreement of sale dated 13.02.2006, Ex.P.2 is Copy of legal notice dated 7.12.2006, Ex.P.3 is Postal receipt, Ex.P.4 is UCP certificate and Ex.P.5 is Reply notice dated 13.12.2006.
Hence, P.W.1 relying upon his oral evidence filed under Order 18 Rule 4 of CPC and coupled with Ex.P.1 to P.5 marked in both the suits and pray for grant of decree for specific performance of contract and prays to decree in both the suits.
12. The learned counsel for the defendants after clubbing ob these two suits cross examined P.W.1 on 8.4.2004, wherein P.W.1 admits that he has studied up to SSLC education and he can read Kannada language and 28 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 P.W.1 admits that he can read and write English language to some extent and if documents is in English script, he used to get read the contents of the English language in a document wrote through somebody, who knows English language. P.W.1 stated that he knew one Sri. P.Chandrashekar of Gottigere, but further he admits that on the date of execution of sale agreement, the defendant himself introduced his friend Gottigere Sri. P.Chandrashekar to him stating that Sri. P.Chandrashekar of Gottigere approaching the shop of defendants for getting repaired his lorry. However, P.W.1 admits that prior to execution of Ex.P.1, he had knew about Gottigere Sri. P.Chandrashekar as he is used to approach the shop of defendant and other attesting witnesses on the suit agreement was brought by the defendant himself and P.W.1 stated that defendant had quoted sale price for his side of Rs.70-00 lakhs and defendant i.e, his wife in connected suit quoted price for the sale of schedule property owned by her for Rs.34-00 lakhs and after sale negotiations the sale consideration amount was fixed for Rs.64,35,000/- and Rs.29,25,000/- respectively. P.W.1 stated that he has verified the title documents in respect of schedule properties prior to entering into sale agreement except katha certificate, he has verified all other relevant documents and noticed that defendant and his wife have saleable interest and having marketable title in respect of 29 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 suit schedule properties and P.W.1 stated that at the time of his verification of records of schedule property, he noticed that the katha in respect of defendant's name was entered in gramapanchayath records and Form No.9 and 10 were showing the names of defendant issued by the concerned Gramapanchayath and as on the date of sale agreement, the schedule sites have already vested with jurisdiction of C.M.C and he did not enquired into the Sub Registrar office, where sale deed can be executed on the basis of old katha based upon Form No.9 and 10 by the defendant in both the cases.
P.W.1 stated that agreement of sale were prepared and brought by the defendant and his wife for execution and they got typed the agreement of sale and placed before him for execution and he knew the contents of sale agreement, wherein defendants have understood the contents of sale agreement and P.W.1 admits that there is no covenant recited in the suit agreement of sale in respect of handing over any other documents by defendants to the plaintiff and defendants have promised to the plaintiff of furnishing katha extract after effecting change of katha into C.M.C. records. P.W.1 stated that though he requested the defendant to include the clause in agreement of sale to hand over the documents after change of katha certificate, but the said clause has not been inserted and witness volunteers that in the agreement to sell, a general clause is inserted, which 30 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 speaks that the defendants have agreed to furnish all the necessary documents, which are required for registration purpose and documents have to be given at subsequent time and defendants have not agreed in the agreement of sale with specific clause that undertaking to produce katha extract after getting change of katha in their name from existing C.M.C. records to that of change of katha in the BBMP records , but execution of Ex.P.1 was came to be executed by himself, defendant Sri. Palani Swamy and his wife Smt. Chinna Ponnu in the presence of both the attesting witnesses and P.W.1 admits that in the agreement of sale in connected suit O.S.No.5738 of 2008 there is no separate clause recited regarding defendants furnishing katha extract after change of katha entry in their name and P.W.1 admits that the same attesting witnesses , who have signed Ex.P.1 in main suit. The said witnesses have attested the agreement of sale in connected suit and P.W.1 admits that in Ex.P.1 marked in O.S.No.5738 of 2008, the signature of defendant Sri. Palani Swamy is appearing on page No.1 to 3 of Ex.P.1 at serial number on each page and on the last page of Ex.P.1, the signature of defendant Sri. Palani Swamy is appearing parallel to the signature of his wife and P.W.1 stated that he himself and de in both the cases have held discussions about the payment of earnest money and the said fact has to be reflected in the suit agreement of sale and P.W.1 deposed that 31 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 he has paid earnest amount of Rs.15-00 lakhs in main case and Rs.5-00 lakhs in connected suit wherein defendant and his wife insisted for payment of earnest amount only by way of cash and P.W.1 further admits that Ex.P.2 is not recited specifically regarding payment of earnest money in which mode, the payment was to be made to the defendant and P.W.1 admits that Ex.P.1 pertaining to clubbed case O.S.No.5738 of 2008 also not recited specifically with clause showing mode of payment of earnest amount.
13. P.W.1 further cross examined on 2.8.2004, wherein P.W.1 denied that in the year 2006, Sri. P.Chandrashekar of Gottigere approached him and requested him to arrange for a loan of Rs.20-00 lakhs and P.W.1 denied his knowledge regarding defendant and his wife are in need of money in the year 2006 of Rs.20-00 lakhs as defendants wants to spent amount towards medical expenses of his mother and also some amount has to be paid to the vendor of the suit land purchased by defendant Sri. Palani Swamy and P.W.1 denied that defendant had informed Sri. P.Chandrashekar of Gottigere about their diary need of financial help in turn and in turn Sri. P.Chandrashekar of Gottigere had approached him and requested him to finance them and P.W.1 denied his knowledge stating that he do not know when the defendants have asked for loan to Sri. 32 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 P.Chandrashekar of Gottigere, who in turn approached him with request to lend loan to the defendants and thereafter, he informed that defendants should agreed to the two conditions to be imposed for lending the loan and P.W.1 denied that he insisted Sri. P.Chandrashekar of Gottigere to obtain the signature of defendant Sri. Palani Swamy and his children on two blank stamp papers and to obtain the signature of wife of Sri. Palani Swamy on another two blank stamp papers along with her children for the purpose of lending loan. However, P.W.1 volunteers that no such loan transaction had taken place between him and defendants and P.W.1 denied that defendants as they were in need of amount during the year 2006 in the month of February, they executed blank stamp papers putting their signatures of defendant Sri. Palani Swamy and his wife and children and in connected suit also defendant and his wife and his children have executed their signatures on blank stamp paper as security for the loan amount of Rs.20-00 lakhs availed by them and P.W.1 denied that he had instructed the Gottigere Sri. P.Chandrashekar to obtain signature of defendant on the alleged documents and P.W.1 further denied that he has created the suit agreements using the blank stamp papers, which were signed and executed by defendant and his wife and children of defendant and his wife subsequently without notice to the defendants and P.W.1 33 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 posed question that you have agreed to return the blank stamp papers obtaining signatures of defendants and their children of returning the said documents after defendants refunded the amount of loan of Rs.20-00 lakhs, for which, P.W.1 answer that he has not lent any loan to the defendants in the mediation of Gottigere Sri. P.Chandrashekar and P.W.1 admits that Sri. P.Chandrashekar of Gottigere had signed the suit agreements as one of the attesting witnesses and P.W.1 admits that he has caused legal notice on 7.12.2006 to defendants informing about the suit agreement of sale and to execute the sale deed and defendants have replied his notice vide reply notice dated 13.12.2006 and P.W.1 admits that he understood the reply notice issued by the defendants and P.W.1 admits that defendants have denied the execution of exp1 in the reply notice and P.W.1 also admits that defendant in the reply notice stated that they had no intention to sell the schedule property and P.W.1 admits that in Ex.P.1 marked in connected suit of page No.1 to 3, the defendant Sri. Palani Swamy is appearing in first and below that, his wife's signature is appearing and below the signature of his wife, the children of defendant have signed and P.W.1 denied that on Ex.P.1 at page No.4, the signatures of defendant Sri. Palani Swamy himself and defendant's children were obtained and signatures of attesting witness taken by Sri. P.Chandrashekar of Gottigere, whereas P.W.1 34 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 volunteers that signatures on Ex.P.1 in connected suit on page No.4, the parties to the documents and attesting witnesses have signed their signatures in his presence and P.W.1 admits that in Ex.P.1 marked in O.S.No.5737 of 2008 there is no signature of wife of defendant in Ex.P.1 and P.W.1 stated that in Ex.P.1 Sri. Palani Swamy , defendant himself told that there is no need to obtain signature of his wife on Ex.P.1. Hence, he did not obtained signatures of wife of Sri. Palani Swamy on Ex.P.1 in connected suit and P.W.1 denied that there is no sale transaction caused between himself and defendant and defendant had no intention to sell the schedule property and defendants have not accepted any sale agreement in his favour and P.W.1 denied that defendant Sri. Palani Swamy nor his wife had received amount of Rs.15-00 lakhs and Rs.5-00 lakhs under suit agreement Ex.P.1 from him towards earnest money in respect of sale transaction. Hence, the learned counsel for the defendant cross examined P.W.1 in the above manner in respect of Ex.P.1 produced and marked in respect of these two suits.
14. The defendant in main suit Sri. Palani Swamy has given rebuttal evidence for himself and on behalf of his wife, who was defendant in connected suit, wherein D.W.1 filed his affidavit evidence filed under Order 18 Rule 4 of CPC and on 35 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 perusal of the chief examination affidavit, wherein D.W.1 stated that he is running lorry repair garage particularly lorry springs and running garage in the shed, which was constructed in the schedule site, wherein Sri. P.Chandrashekar of Gottigere is the owner of the lorry and he used to leave the lorry for repairs to his work shop and hence, there became friendship between D.W.1 and Gottigere Sri. P.Chandrashekar and D.W.1 stated that in the month of February 2006, as his mother was fell sick in his native place and he had to rush back to his native for providing medical treatment and D.W.1 also stated that his vendor, who has sold the schedule site was insisting for payment ob balance amount and as such, he was cropped up with financial constraints in the month of February 2006 and was diry need of money of Rs.20-00 lakhs and he approached the Sri. P.Chandrashekar of Gottigere and though initially, he was promised to lent money on loan basis, but Gottigere Sri. P.Chandrashekar did not lent money as hand loan. However Sri. P.Chandrashekar of Gottigere assured the defendant and his wife of providing hand loan subject to fulfillment of conditions to be imposed by the intended proposed creditor and Gottigere Sri. P.Chandrashekar contacted the plaintiff with this matter of lending loan and plaintiff agreed to lent money to defendant subject to execution of blank stamp papers signed by the 36 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 defendant and his wife and children as consenting witnesses and hence, D.W.1 stated that he has received amount of Rs.20-00 lakhs paid by the plaintiff as hand loan on 13.2.2006, but D.W.1 admits execution of blank stamp papers signed duly by himself, his wife and his children as security for the loan signed by the plaintiff. Hence, D.W.1 denied execution of sale agreement as per Ex.P.1 for out right of sale of schedule property in favour of plaintiff and on the contrary, D.W.1 stated that there was loan transaction obtained from the plaintiff and D.W.1 stated that there was no intention of selling the property, but whereas plaintiff falsely filed the suit creating document as agreement of sale and hence, D.W.1 stated that he has replied the notice by giving reply on 13.12.2006 and D.W.1 came to the knowledge of alleged agreement of sale only after issuance of legal notice caused by the plaintiff and hence, D.W.1 stated that he is ready to repay the loan amount of Rs.20-00 lakhs with bank rate of interest and D.W.1 stated that Sri. P.Chandrashekar of Gottigere introduced the plaintiff to him and told that the plaintiff herein had lent loan and accordingly, plaintiff was introduced to the defendant and he had further told that the blank signed stamp papers will be returned to the defendant moment, he cleared of the loan. Hence, D.W.1 in his rebuttal evidence denied the execution of sale agreement in favour of plaintiff dated 13.2.2006 and D.W.1 also specifically stated 37 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 that he had no intention to sell the property belongs to him and himself and his wife and on the contrary, he has executed blank stamp papers as insisted by the plaintiff in the mediation of Sri. P.Chandrashekar of Gottigere towards security for the loan advanced by the plaintiff and D.W.1 got marked Ex.D.1 to D.27, wherein Ex.D.1 to D.18 are pertaining to O.S.No.5737 of 2008 and Ex.D.19 to D.27 are connected documents to O.S.No.5738 of 2008 . They are as follows:-
Ex.D.1 is Tax paid receipt dated 8.9.2004 of C.M.C, Bommanahalli for the year 2002-2003. Ex.D.2 is Certified copy of self assessment declaration issued by C.M.C. Bommanahalli, for year 2002-2003. Ex.D.3 is Tax paid receipt dated 8.9.2004. Ex.D.4 is Certified copy of self assessment declaration for the year 2003-2004. Ex.D.5 is Tax paid receipt dated 8.9.2004. Ex.D.6 is Self Assessment declaration for the year 2004-2005. Ex.D.7 is Tax paid receipt dated 8.9.2004. Ex.D.8 is Self assessment declaration particulars for the year 2004-2005. Ex.D.9 is Tax paid receipt dated 8.9.2004. Ex.D.10 is Self assessment declaration of property particulars for the year 2004-2005. Ex.D.11 and 12 are Certified copy of Form No.III issued under Self assessment declaration dated 8.9.2004 issued by Commissioner, C.M.C. Bommanahalli. Ex.D.13 is Tax paid receipt dated 5.4.2007.38 OS. No.5737 of 2008
C/w O.S. No. 5738 of 2008 Ex.D.14 is Cash paid copy of self assessment declaration for the year 2006-2007. Ex.D.15 is Tax paid receipt dated 5.4.2007. Ex.D.16 is Self assessment declaration for the year 2006-2007. Ex.D.17 & 18 are Two tax paid receipts dated 26.3.2009. Ex.D.19 to D.21 are Two tax paid receipt dated 8.9.2004 and another tax paid receipt dated 5.4.2007. Ex.D.22 to D.25 are Four Self assessment declaration for the year 2002-2003, 2003-2004, 2004-2005 and 2006-2007. Ex.D.26 is Form No.III issued under Self Assessment Scheme dated 8.9.2004. Ex.D.27 is Tax paid receipt dated 26.3.2009.
Hence, P.W.1 relying upon his oral evidence and documents Ex.D.1 to D.27 pray for dismissal of the suit.
15. The counsel for plaintiff cross examined D.W.1 on 21.11.2014, wherein D.W.1 admits that he new plaintiff since the year 2006 as he has raised loan from the plaintiff and D.W.1 stated that he has obtained loan amount directly from the plaintiff and D.W.1 admits that he approached the Sri. P.Chandrashekar of Gottigere and asked him to finance loan of Rs.20-00 lakhs and in turn Sri. P.Chandrashekar of Gottigere informed that he is not having such quantum of money, but D.W.1 further stated that his friend by name Manju is ready to finance a loan, but subject to 3 conditions to finance the loan, they are to hand over Xerox copies of 39 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 said documents and to execute blank stamp paper signed by them and D.W.1 admits that he ha snot produced any documents to show that he had entered into sale transaction regarding purchase of site with somebody and to pay balance sale consideration amount to the owners of site and D.W.1 stated that he written statement need of money for medical expenses of his mother and D.W.1 stated that Sri. P.Chandrashekar had purchased stamp papers and at that time, plaintiff was not present and D.W.1 admits that plaintiff caused legal notice and D.W.1 stated that he has replied the notice as per Ex.P.5 and in Ex.P.5 he has not stated anything about Gottigere Sri. P.Chandrashekar. Plaintiff has not obtained his signature on any blank stamp papers and this fact is not stated in Ex.P.5 reply notice and D.W.1 do not know whether he has pleaded in his written statement at para No.14 stating that Sri. P.Chandrashekar of Gottigere had to borrow amount from others and finance him by obtaining document and D.W.1 stated that Sri. P.Chandrashekar of Gottigere had paid amount to him on the next day of obtaining his signatures on blank stamp papers and he further stated that Sri. P.Chandrashekar had introduced the plaintiff Manju to him after lapse of 5 months from the date of borrowing the amount from Sri. P.Chandrashekar and his affidavit evidence he has not stated the fact of introducing the plaintiff Sri. Manju after 5 40 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 months from the date of borrowing loan transaction and D.W.1 stated that he has instructed his counsel regarding information to reply the notice issued by the plaintiff as per Ex.P.2, he has informed the counsel regarding obtaining of signatures on blank papers, blank stamp papers and also obtaining xerox documents.
16. D.W.1 again further cross examined on 16.1.2015, wherein D.W.1 admits that after issuance of legal notice dated 7.12.2006, it written statement served upon him and he came to know that his signatures were obtained on blank stamp papers and thereafter he enquired Sri. P.Chandrashekar about the suit documents and D.W.1 denied that himself and connected suit together after discussion have issued reply notice as per Ex.P.5 and D.W.1 admits that after consulting his advance, he had got issued reply notice to the plaintiff and D.W.1 admits that he has informed his advocate at the time of giving reply notice that his signatures were obtained on blank stamp papers and also he had informed that he had obtained money for the treatment of his wife as she was suffering from illness and D.W.1 denied that he has not stated this fact in his reply notice in Ex.P.1 and D.W.1 stated that in his reply notice bout handing over of signatures of his wife and his children and his family members on blank stamp paper and to hand 41 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 over site documents in reply notice and D.W.1 stated that he has not pleaded anything about the alleged conditions as stated by Sri. P.Chandrashekar imposed for borrowing loan of execution of blank stamp papers and D.W.1 admits that there was no fixed time for repayment of the loan amount and also there was no agreement for payment of interest and D.W.1 admits that if any bank or financial institution lent loan by retaining the title documents, wherein the bank or other financial institutions charged interest on the loan amount and D.W.1 admits that he has obtained alleged loan in the year 2006 and D.W.1 denied the suggestion that Ex.P.1 is the sale agreement executed in favour of plaintiff and D.W.1 denied that he is falsely deposing that the alleged transaction under Ex.P.1 is a loan transaction. He admits that he has not filed any police complaint against plaintiff alleging that plaintiff had obtained signatures of himself and his family members of blank stamp papers and converted the said documents into agreement of sale after receipt of legal notice Ex.P.2 and D.W.1 admits that he has not approached the either plaintiff or Sri. P.Chandrashekar showing his intention of repayment of loan amount and in his reply notice Ex.P.5, he has not stated about his readiness to repay the loan amount and he denied that in Ex.P.5 it is not recited of his intention to repay the alleged loan amount, but he is deposing falsely before this court and D.W.1 admits that in 42 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 his chief examination para No.17, he has stated about the fraud and Sri. P.Chandrashekar had obtained signatures of blank stamp papers and creates suit agreement of sale and hence, he has committed fraud against defendant and D.W.1 admits that he has not filed any police complaint against Sri. P.Chandrashekar of Gottigere and D.W.1 denied that though he has executed Ex.P.1 as out right sale agreement and his wife also executed Ex.P.1 in connected suit as out right sale agreement, but at this stage, defendant/D.W.1 denying the transaction entered into dated 13.2.2006 in order to cause loss to the plaintiff and D.W.1 admits that he has obtained loan amount for the purpose of purchasing site and rest of the cross-examination is denied by D.W.1.
17. After appreciation of the oral evidence placed on record by the P.W.1 and that of D.W.1 and on perusal of Ex.P.1 marked through P.W.1 in both the cases and after perusal of Ex.P.2 and reply notice marked at Ex.P.5 given by the defendant in both the suits, wherein prior to institution of the suit, the plaintiff has caused legal notice as per Ex.P.2 to the defendant in main case and also defendant in connected suit, wherein defendant and his wife received legal notice caused as per Ex.P.2 and have replied the legal notice dated 7.12.2006 as per Ex.P.5, wherein the defendant and his wife denied that they have executed sale agreement said 43 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 to have been executed on 13.2.2006 for sale of schedule property in favour of plaintiff and also denied the receipt of amount of Rs.15-00 lakhs and Rs.5-00 lakhs respectively as part consideration amount towards sale of schedule properties. However, defendant and his wife in the reply notice without prejudice to the contentions taken above, they have called upon the plaintiff to supply/avail the copy of the alleged agreement of sale to answer the legal notice more appropriately, but for this compliance, it appears that plaintiff has not sent or made available the copy of the alleged agreement of sale entered into dated 13.2.2006 . It appears from the oral and documentary evidence , wherein the plaintiff has approached this court for specific performance relief even after he received reply at Ex.P.5, wherein it is material for the plaintiff to examine atleast one of the attesting witness, who have attested Ex.P.1 in both the cases in order to prove Ex.P.1 that it is a out right sale transaction entered into between plaintiff and defendant in respect of these two suits. However, plaintiff did not chosen to examine any one of the attesting witness on Ex.P.1 for the reasons best known to the plaintiff atleast plaintiff, who is having burden of proof of proving Ex.P.1 that Ex.P.1 is out right sale transaction, he could have examined the material and vital witness Sri.P.Chadrashekar for proving Ex.P.1 Though defendant and his wife have admitted the receipt of 44 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 Rs.20-00 lakhs from the plaintiff on 13.2.2006 and also taken specific defence that they have executed by signing blank stamp papers, but still burden is casted upon plaintiff to prove that Ex.P.1 relied by him in both the cases regarding Ex.P.1 are in real sense. It is out right sale transaction entered into between plaintiff and defendant in both the suits, wherein plaintiff must prove and establish that there was consensus ad-idum arrived between the parties at the time of entering into contract and plaintiff further proves that there was sale negotiation held between plaintiff and defendant in respect of schedule property and regarding fixing of sale consideration amount by mutual agreement or consent of the parties, but in this case, it appears that on perusal of Ex.P.1 in both the cases, wherein in Ex.P.1, it is signed by Sri. Palani Swamy as vendor and below that, his sons and daughter have signed as per Ex.P.1(c), (d) and (e) and Ex.P.1(f) and (g) are the signatures of attesting witnesses and Ex.P.1 in main suit is not signed by the defendant in connected suit i.e., Smt. Chinna Ponnu , who is wife of the defendant and on perusal of Ex.P.1 in connected suit marked at Ex.P.1, wherein on page No.1 to 3, there is signatures of defendant Sri. Palani Swamy appearing first and below that, his wife has signed and below the signature of his wife, the sons and daughter of defendants have signed and on last page, i.e., on page No.4 in the vendors column, Smt. Chinna 45 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 Ponnu i.e., defendant in O.S.No.5738 of 2008 has signed and Sri. Palani Swamy defendant in O.S.No.5737 of 2008 has signed as attesting witness and witness No.2 and 3 are namely Lakshminarayana and Sri. P.Chandrashekar of Gottigere and on perusal of Ex.P.1 in both the cases, wherein there is rectification by striking out the recitals in respect of delivery of vacant possession of the schedule property to the purchaser, wherein it appears that the typed text of this clause of page No.3 is pasted with whitener and some typed portion is deleted and it is inserted "vendor undertake" deliver vacant possession of the schedule property to the purchaser at the time of registration. Hence, in Ex.P.1 produced and marked in both the cases are found with rectification in respect of delivery of possession and if really, there was agreement of sale entered into between plaintiff and defendants, wherein the plaintiff ought to have taken signature of defendant and his wife for the corrections made in Ex.P.1 on page No.3 of suit agreement and even it is not initialled by plaintiff for this rectification made on page No.3 of Ex.P.1. Admittedly, the plaintiff is in custody of the alleged original agreement of sale Ex.P.1 till it is produced before the court. But there is no proper explanation given by the plaintiff regarding alteration/rectification of clause regarding handing over of possession by insertion with ink in respect of possession recitals and it appears that this clause regarding 46 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 handing over of possession is materially altered without notice of defendants only with oblique motive of avoiding stamp duty in pursuance of the provision of Karnataka Stamp Act 1957 and plaintiff after receipt of reply as per Ex.P.5 ought to have send copy of alleged agreement of sale as called by the defendant in their reply notice. But plaintiff has not sent any copy of agreement of sale in response to Ex.P.5 and plaintiff has filed this suit based upon Ex.P.2 after receipt of Ex.P.5. hence, non sending of copy of agreement of sale said to have been executed by defendant and his wife also leads to draw an adverse inference against plaintiff that Ex.P.1 transaction more probably, it is loan transaction existed between plaintiff and defendant Sri. Palani Swamy on the intervention of the attesting witness Sri. P.Chandrashekar of Gottigere , who is known witness on both sides, wherein Sri. P.Chandrashekar of Gottigere is known to plaintiff and also he is known to defendant Sri. Palani Swamy and on perusal of the payment made by the plaintiff, wherein Ex.P.1 is silent regarding mode of payment of amount of Rs.15-00 lakhs and Rs.5-00 lakhs in both the agreements. However, defendant in both the cases have admitted that they have received an amount of Rs.20-00 lakhs amount from the plaintiff through intervention of Sri. P.Chandrashekar, who was mediator for the loan transaction. The plaintiff has not produced any bank statement of his 47 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 accounts produced any pass-book to show his financial capacity to pay balance sale consideration amount and though plaintiff has averred the ingredients of Sec.16(c) of Specific Relief Act in his pleadings in both the suits and also deposed in his oral evidence regarding readiness and willingness, but plaintiff has not produced any iota of evidence to show that he was ready and willing to pay balance sale consideration amount and ready with balance sale consideration amount payable to the defendant and his wife, wherein the plaintiff has paid only a sum of Rs.20-00 lakhs in respect of both the transaction, wherein the alleged sale consideration amount works out to Rs.64,35,000/- and in connected suit Rs.29,25,000/- and plaintiff has not produced any iota of evidence to prove his financial capacity to pay the balance sale consideration amount and on the contrary, the defendants in their reply notice they have contended that they came to know about the alleged agreement of sale relied by the plaintiff only after they received notice Ex.P.2 on 7.12.2006. Hence, considering the oral evidence of P.W.1 and D.W.1 and plaintiff has not examined any one of the attesting witnesses for Ex.P.1 and considering Ex.P.1 transaction, wherein it appears that these two agreements of sale appears to have been executed by the defendant and his wife in favour of plaintiff out of the hand loan transaction availed by them for a sum of Rs.20-00 48 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 lakhs and even by going through the clauses contained under Ex.P.1, wherein this agreements of sale are recited with general condition, wherein if really Ex.P.1 transaction is out right sale transaction entered into mutually between plaintiff and defendants. The plaintiff must have obtained title documents from the defendants and produced along with the suit, wherein there is no whisper in Ex.P.1 regarding handing over of title documents in respect of schedule property. On the contrary, the schedule property is owned by defendant and his wife and their names appearing in C.M.C. records and the defendant and his wife have got clear marketable title for sale of property and there was no impediment for them to sell the property during the year 2006 , but plaintiff appears to have made some false allegations regarding change of katha in the name of defendants in the BBMP records as the schedule sites are vested with the jurisdiction of BBMP. Hence, the only question that arises before this court whether the transaction entered under Ex.P.1 is out right sale transaction or it is a hand loan transaction. For this question, the answer of this court on appreciation of the evidence both oral and documentary, wherein it appears to the court that Ex.P.1 executed by the defendants is by way of security for the hand loan transaction availed by the defendant and his wife in the month of February 2006 and as such, I am of the clear 49 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 opinion that Ex.P.1 is not out right sale transaction and plaintiff has utterly filed to establish the necessary ingredients of specific performance of contract within the meaning of Specific Relief Act and also Ex.P.1 in real sense is an agreement to sell, but Ex.P.1 is appears to have been executed by the defendant and his wife towards hand loan transaction and hence, I hold that plaintiff failed to establish that Ex.P.1 produced and relied by him is in real sense an agreement to sell executed by defendant of both the suits agreeing to sell that suit schedule property and on the contrary, Ex.P.1 is a document came into existence out of hand loan transaction existed between plaintiff and defendant in both the suits. Hence, the defence filed by both defendants in both the suits appears to be probable and proximate as against the evidence of P.W.1. P.W.1 has not made any attempt to examine any one of the attesting witnesses before this court. On the contrary, he relied upon his own evidence in support of Ex.P.1. Hence, non examination of attesting witnesses in view of this specific defence alleged by the defendant, it is fatal to the case of the plaintiff and even plaintiff has not proved his readiness and willingness from the date of execution of sale agreement till the date of decree in the suit and plaintiff shall have to establish continuous readiness and willingness from the day one of execution of alleged sale agreement, but in this case, 50 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 there is no case that defendants have obtained any further advance amount from the plaintiff. However, defendants have pleaded that they were in dire need of amount to the tune of Rs.20-00 lakhs in the year 2006 in the month of February 2006 and they approached the Sri. P.Chandrashekar of Gottigere and who in turn approached the plaintiff and made arrangement for advancing the loan and this defence urged by the defendants appears to be proved on record and hence, considering the nature of documentary evidence, wherein Ex.P.1 in my opinion is not an agreement to sell in real sense and on the contrary, the documents executed by the defendants towards receipt of hand loan amount of Rs.20- 00 lakhs from the plaintiff. Hence, plaintiff failed to prove that Ex.P.1 is an agreement of sale executed by both the defendants after receiving earnest amount of Rs.15-00 lakhs and Rs.5-00 lakhs respectively under suit transaction i.e., on 13.2.2006 and plaintiff also failed to prove readiness and willingness and once this court has held that Ex.P.1 transaction is out come of hand loan transaction. The question of readiness and willingness also does not exists for consideration. However, the plaintiff though filed this suit against defendant in both the cases by presenting the plaint on 26.8.2008 much after lapse of two years from the receipt of reply notice at Ex.P.5, wherein plaintiff has not deposited the balance consideration amount in both the cases along 51 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 with the suit by filing application before the court and even plaintiff has not made attempts during pendency of the suit showing his readiness and willingness has not filed an application seeking permission deposit balance sale consideration amount. Hence, considering the over all evidence placed on record and considering the facts and circumstances of this case, I am of the clear opinion that Ex.P.1 transaction is not out right sale transaction and on the contrary, these two documents have come up out of hand loan transaction existed between plaintiff and defendant in both the cases and as such, I answer Issue No.1 and 2 in negative against plaintiff holding that plaintiff had lent amount of Rs.20-00 lakhs as hand loan to the defendant and his wife in the month of February 2006 and in turn plaintiff got obtained blank stamp papers as insisted for execution of their mediator Sri. P.Chandrashekar and as such, Ex.P.1 is not agreement of sale and it is only a security document obtained by the plaintiff and it appears that defendant and his wife had no intention of alienation of property and they have approached the plaintiff through Sri. P.Chandrashekar of Gottigere for financial help. Hence, with these observations, I hold that defence urged by the defendant appears to be more probable for acceptance in this case. Hence, plaintiff failed to prove Issue No.1 and 2 and on the 52 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 contrary, there exist loan transaction between plaintiff and defendant in both the cases.
18. Issue No.3 and 4 in both the cases:- The plaintiff has filed the suit for specific performance relief based upon Ex.P.1 and plaintiff has prayed for grant of main relief of specific performance of contract. After appreciation of oral and documentary evidence, this court in Issue No.1 and 2 has reached to the conclusion that Ex.P.1 is not out right sale transaction and the said documents are not agreement to sell and on the contrary, Ex.P.1 is out come of loan transaction existed between plaintiff and defendant and as such, question of exercising discretion under Sec. 20 of Specific Relief Act does not arises and as such, question of granting of main relief does not arises in this case and on the contrary, the defendant in both the cases in their written statement admits that they are ready to repay the loan amount of Rs.20-00 lakhs availed by them with bank rate of interest and defendants have not deposited sum of Rs.20-00 lakhs long with their written statement filed in this suit proceedings and even D.W.1 has deposed that he is ready to repay mount of Rs.20-00 lakhs at bank rate of interest. The defendants have utilized the loan amount of Rs.20-00 lakhs received from the plaintiff on 13.2.2006 and defendants have utilized the said mount for their legal necessity and 53 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 defendants have not repaid the said amount to plaintiff and defendants have utilized the said amount and plaintiff had filed the suit in the year 2008 against defendants and at that time i.e., in the year 2008, the defendants ought to have deposited the said amount in this case before the court. But defendants have utilized the said amount of Rs.20-00 lakhs for their need and necessity, wherein the said amount has been retained by the defendants for nearly 9 years, wherein if the said amount was invested in any nationalized bank or any schedule banks. The said amount would have been double the amount of investment, wherein after 6 years, the F.D amount could have fetched double amount of investment, but in this case also defendants have utilized Rs.20-00 lakhs amount received by the plaintiff for their legal necessity and hence, the plaintiff is entitled for interest on Rs.20-00 lakhs at the rate of 18% p.a from the date of lending the amount i.e, from 13.2.2006 till realization of the said amount from the defendant herein. Hence, with these observations, the claim of interest made by the plaintiff at 24% p.a is appears to be on higher side and this court considering the facts and circumstances of this case, wherein this court has awarded interest at the rate of 18% p.a on the amount utilized by the defendants in both the cases, wherein interest at 18% p.a in these days, considering the value of rupee and cost of immovable properties, wherein money can 54 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 fetch interest, if it is invested by the plaintiff either in the business or in the banks and hence interest at 18% p.a is fit to be awarded in this case on the amount of Rs.20-00 lakhs. Hence with these observations, plaintiff is entitled for proportionate costs in these suits from the defendants and hence, with these observations, I hold that plaintiff is not entitled for specific performance relief and on the contrary, plaintiff is entitled for recovery of Rs.20-00 lakhs from the defendants in both the cases with interest thereon at 18% p.a from the date of Ex.P.1 i.e., on 13.2.2006 till realization of amount by the defendant and his wife to the plaintiff. Accordingly, Issue No.3 is answered in negative and Issue No.4 is answered partly affirmative and partly negative.
19. Issue No.5 in both the cases: In view of my findings submitted on Issue No.1 to 4 in both the cases, wherein the plaintiff is entitled for recovery of Rs. 20-00 lakhs paid to the defendant with interest thereon as awarded by this court from the defendants in both the suits. It appears from the order sheet that the plaintiff has filed I.A.No.1 under Order 39 Rules 1 and 2 read with Sec.151 of CPC seeking an exparte injunction order against defendants from alienating the suit schedule property in favour of any 3rd parties. However, order sheet of these two suits shown that this court after hearing the counsel for the plaintiff ordered to issue 55 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 emergent notice to defendant in both the cases and after filing of written statement, the matter was posted for plaintiff's evidence and I.A.No.1 filed by the plaintiff is not pressed filed in this suit. However, the plaintiff has succeeded partly in this case and he is entitled to recover the hand loan amount advanced by him by defendant in both the cases, wherein at this stage it is just and necessary to pass an interim order against defendants in both the cases that the defendant in main case and defendant in connected suit shall not alienate the suit schedule properties in favour of any 3rd parties until clearance of the loan amount of Rs.20-00 lakhs with accrued interest thereon to the plaintiff by realization in full and hence, with these observations, it is further ordered to create charge over the schedule property of decretal amount over the properties owned by defendant in both the cases as per Sec.100 of T.P.Act till plaintiff realizes the amount of Rs.20-00 lakhs with interest thereon awarded by this court including the costs of the suit incurred by the plaintiff. Hence, with these observations, Issue No.5 is answered accordingly, and I proceed to pass the following:-
OR D E R The suit of the plaintiff is partly decreed against defendant in both the suits with proportionate costs.56 OS. No.5737 of 2008
C/w O.S. No. 5738 of 2008 The plaintiff's claim of specific performance relief is hereby rejected.
However plaintiff is entitled to recover an amount of Rs.20-00 lakhs with interest at 18% p.a from 13.2.2006 till realization of the said amount from the defendants in both the suits.
Defendant in main suit and defendant in connected suit are hereby directed to pay the amount of Rs.20-00 lakhs towards principal amount with interest accrued thereon at 18% p.a from 13.2.2006 from the date of suit till realization to plaintiff within two months from the date of drawing of the decree.
Defendant in both the suits are restrained by grant of injunction order not to alienate the schedule property till plaintiff recover the amount awarded under decree and also it is ordered to keep charge over the suit schedule property regarding decretal amount and costs of the suit till it is cleared off by the defendants.
Draw decree accordingly.57 OS. No.5737 of 2008
C/w O.S. No. 5738 of 2008 Keep the copy of original judgment in O.S.No.5737 of 2008 and the copy of the same kept in connected suit O.S.No.5738 of 2008.
{Dictated to the Judgment writer , transcribed by her, corrected and then pronounced by me in open court this 22nd day of April, 2015.} (S.V.KULKARNI) XI ADDL.CITY CIVIL JUDGE BANGALORE CITY.
ANNEXUERE List of witnesses examined for plaintiff in O.S.No.5737 of 2008 C/W O.S.No.5738 of 2008 :-
P.W.1 Sri. Manju List of documents exhibited for plaintiff in O.S.No.5737 of 2008 C/W O.S.No.5738 of 2008 :-:-
Ex.P.1 Original agreement of sale dated
13.02.2006
Ex.P.1(a) Signature of defendant
58 OS. No.5737 of 2008
C/w O.S. No. 5738 of 2008
Ex.P.1(b) Signature of defendant on last page of
Ex.P.1
Ex.P.1© to (e) Signatures of children of defendant
as consenting witnesses
Ex.P.1(f) & (g) Signature of attesting witness Ex.P.2 Copy of legal notice dated 7.12.2006 Ex.P.3 Postal receipt Ex.P.4 UCP certificate Ex.P.5 Reply notice dated 13.12.2006 List of witnesses examined for defendant in O.S.No.5737 of 2008 C/W O.S.No.5738 of 2008 :-:
DW.1 Sri. Palani Swamy List of documents exhibited for Defendant in O.S.No.5737 of 2008 C/W O.S.No.5738 of 2008 :-:-
Ex.D.1 Tax paid receipt dated 8.9.2004 of
C.M.C, Bommanahalli for the year
2002-2003
Ex.D.2 Certified copy of self assessment
declaration issued by C.M.C.
Bommanahalli, for year 2002-2003
Ex.D.3 Tax paid receipt dated 8.9.2004
Ex.D.4 Certified copy of self assessment
declaration for the year 2003-2004
Ex.D.5 Tax paid receipt dated 8.9.2004
Ex.D.6 Self Assessment declaration for the
year 2004-2005
59 OS. No.5737 of 2008
C/w O.S. No. 5738 of 2008
Ex.D.7 Tax paid receipt dated 8.9.2004
Ex.D.8 Self assessment declaration
particulars for the year 2004-2005
Ex.D.9 Tax paid receipt dated 8.9.2004
Ex.D.10 Self assessment declaration of
property particulars for the year
2004-2005
Ex.D.11 and 12 Certified copy of Form No.III issued under Self assessment declaration dated 8.9.2004 issued by Commissioner, C.M.C. Bommanahalli, Ex.D.13 Tax paid receipt dated 5.4.2007 Ex.D.14 Cash paid copy of self assessment declaration for the year 2006-2007 Ex.D.15 Tax paid receipt dated 5.4.2007 Ex.D.16 Self assessment declaration for the year 2006-2007 Ex.D.17 & 18 Two tax paid receipts dated 26.3.2009 Ex.D.19 to Two tax paid receipt dated 8.9.2004 D.21 and another tax paid receipt dated 5.4.2007 Ex.D.22 to Four Self assessment declaration D.25 for the year 2002-2003, 2003-2004, 2004-2005 and 2006-2007 Ex.D.26 Form No.III issued under Self Assessment Scheme dated 8.9.2004 Ex.D.27 Tax paid receipt dated 26.3.2009 XI ADDL.CITY CIVIL JUDGE, BANGALORE CITY 60 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008 61 OS. No.5737 of 2008 C/w O.S. No. 5738 of 2008