Bangalore District Court
) C.R.Shivakumar vs ) H.C.Rajendra on 11 October, 2018
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BANGALORE [CCH.No.42]
PRESENT: SRI.BASAVARAJ B.COM., LL.M.
XLI Addl. City Civil Judge
Dated this the 11th day of October 2018
O.S.No.6914/2005
PLAINTIFFS : 1) C.R.Shivakumar
S/o Late C.B.Rudrappa
67 years
No.1108, 24th Main
1st Phase, J.P.Nagar
Bangalore-560 078
Since deceased by LRs
a) Harsha.C.S.
S/o Late C.R.Shivakumar
Aged about 45 years
R/at No.C-304
Sharada Nivas Apartments
6th Main, 15th Cross
Indiranagar
Bangalore-560 038
b) Samyuktha.C.S.
W/o Dinesh Kuncham
Aged about 35 years
"The Greens" Al Thayyal Building 4
Apartment 117, Street No.5
Dubai, U.A.E.
2) Smt.Usha Shivakumar
W/o C.R.Shivakumar
62 years
No.1108, 24th Main
2 OS No.6914/2005
1st Phase, J.P.Nagar
Bangalore-560 078
Since deceased by LRs
Plaintiff No.1, Plaintiff No.1(a) and 1(b)
(By Sri.H.S.S., Advocates)
V/s.
DEFENDANTS : 1) H.C.Rajendra
S/o Late H.M.Channabasappa
Major, U.R.Irrigation and
Bearing (P) Ltd.,
Whitefield Road, P.B.No.4849
Bangalore-560 048
2) The Bangalore Development
Authority
B.D.A.Complex, T.Chowdaiah Road
Kumara Park West
Bangalore-560 020
By its Commissioner
(D1 By Sri.H.R.N.,
D2 By Sri.S.B., Advocates)
Date of Institution of the Suit: 12.09.2005
Nature of the suit
(Suit on Pronote, suit for Specific Performance &
declaration & possession, suit Permanent Injunction
for injunction)
Date of commencement of 21.11.2007
recording of evidence:
Date on which the Judgment 11.10.2018
was pronounced:
3 OS No.6914/2005
Total Duration: Year/s Month/s Day/s
13 00 30
JUDGMENT
The plaintiffs filed this suit for specific performance of the contract dated 28.3.1980 directing the defendant No.1 to execute the sale deed and do all acts necessary to ensure their title over it at their cost, for permanent injunction restraining the 1st defendant from interfering with their peaceful possession and enjoyment of the suit schedule property and to pass such other reliefs.
2. The suit schedule property as described in the plaint is as under:-
SCHEDULE A building site bearing No.1108, Sarakki I Stage, Bangalore measuring east to west: 27.43 meters and north to south: 18.29 meters and bounded on:
East by : By Road West by : By Site No.1110 4 OS No.6914/2005 North by : By Site No.1109 South by : By Site No.1107
3. The plaint averments in brief is as under:
The 2nd defendant allotted schedule site to the 1st defendant. Pursuant to the allotment, the 2nd defendant entered into an agreement with the 1st defendant on 10.8.1978 and handed over possession of schedule site to the 1st defendant on 16.3.1979 and he was so put in possession of the schedule site as a tenant for a period of 10 years from the date of taking such possession with a condition that he shall not alienate it during that period with a further term that it shall, at the end of ten years period, sell it to him at his expenses.
The 1st defendant was a permanent resident of Nandinathapura, Periyapatna Taluk, Mysore District managing an agricultural farm. His agricultural farm interests required that he reside in the farm itself. 5 OS No.6914/2005 Therefore, it was impossible for him to take up residence in Bangalore. Further, he required the funds by the sale of the schedule site for the development activities he had under taken in his farm. Consequently, he offered to sell the schedule site to the plaintiffs, who are his close relatives, subject to certain terms and conditions under which he was holding it from the 2nd defendant.
Pursuant to the said offer and acceptance by the plaintiffs, by registered agreement of sale dated 28.3.1980 the 1st defendant agreed to sell the schedule site to the plaintiffs for a consideration of Rs.65,000/- only in full and final settlement. Out of the said consideration amount, the plaintiffs paid him the same day an amount of Rs.15,000/-, which he has acknowledged in the deed. The balance amount was payable on or before 1.9.1980. The said consideration agreed upon was more than the prevailing rate then. 6 OS No.6914/2005
It was stipulated in the agreement that as the title will be rendered absolute by the 2nd defendant only on the expiry of the lease period i.e. on and after 16.3.1989, he would execute the sale deed in their favour thereafter. He also undertook to apply to the 2nd defendant to grant him permission to affect the sale of the schedule site without waiting for the expiry of the lease period and he had not done it.
Defendant No.1 also agreed to execute a General Power of Attorney in favour of 1st plaintiff to apply from the 2nd defendant for permission to construct building thereon and to sign all necessary papers for obtaining sanction from various authorities in that behalf or effectuate the construction. The taxes were agreed to be paid by the plaintiffs. One of the witnesses to the said agreement B.M.Chandrashekar - the father-in-law of the 1st defendant.
In pursuance to the term of agreement, the 1st defendant executed a registered General Power of 7 OS No.6914/2005 Attorney on the same day appointing the 1st plaintiff to do all acts connected with the construction of a residential building on the schedule site from the inception to the conclusion and thereafter to let out the building and continue to deal with it as its owner doing all acts necessary for the said purpose.
In pursuance of the aforesaid facilities and the authority, the plaintiffs got a residential building constructed in the year 1981 on the schedule site at a total cost of about Rs.3,00,000/- and performed the House Warming Ceremony.
The plaintiffs have paid the building tax to the 2nd defendant, property taxes to the BBMP, Bangalore Water Supply & Sewerage Board, Bangalore. AEH Installation serviced by Bangalore Electric Supply Co., Bangalore.
From the date of aforesaid agreement till this day the plaintiffs have been in peaceful possession and enjoyment of the schedule site with the building. The 8 OS No.6914/2005 defendant has not spent any amount on the construction or paid any tax/s to the various authorities. The 1st plaintiff has paid income tax to the department notionally assessing the value of the building.
In about the year 1994, the defendant issued a receipt titled "TO WHOM IT MAY CONCERN" confirming that he has agreed to sell the schedule site to the plaintiffs and that the agreement in respect of it had registered on 30.3.1980 having received at the time of the agreement Rs.15,000/- only and handing over possession as also acknowledging the receipt, during October and November, 1980 of Rs.50,000/-.
The plaintiffs have been ready and willing to perform their part of contract throughout the period for securing the sale deed from the 1st defendant by defraying the expenses towards stamp duty and registration charges etc. at their cost. Even now they are ready to do so.
9 OS No.6914/2005
No date has been fixed for the performance of the contract. The 1st defendant had undertaken to apply to the 2nd defendant seeking permission to execute the sale deed in their favour. Taking advantage of the personal problems which the plaintiffs were facing in their personal lives, the 1st defendant went on evading to fulfill the terms of the contract, though he was promising to comply with them. By letter dated 9.7.2005 sent by registered post, acknowledgement due the plaintiffs informed the 1st defendant that it was time for him to act in the matter, concluding it with the fond hope that he 'Will complete the registration within the next two weeks from the date of this letter'.
By the reply dated 19.7.2005 while acknowledging the receipt of said letter stated supra, the 1st defendant made false and untenable allegations. The tenor of the reply leaves no doubt in their minds that the 1st defendant has refused performance of the contract. 10 OS No.6914/2005
The 1st plaintiff, bonafide and reasonably, brought to the notice of the 2nd defendant and tried to secure the deed of sale directly from it, however in vain. They have since learnt that the 1st defendant is making hasty attempts to secure a sale deed of the schedule site from the 2nd defendant hors the contract and the obligations he was towards the plaintiffs' vis-à-vis the schedule site. They have learnt that the 1st defendant has approached the 2nd defendant by his letter dated 2.8.2005 seeking 'absolute sale deed' in respect of the schedule site, referring to the agreement in question and making false, untenable and unsustainable imputations concerning the entire transaction stated above. Hence prays to decree the suit.
4. Upon service of summons, the defendant No.1 appeared before the court through his counsel and filed written statement contending that the suit schedule property was allotted and possession was delivered to the 1st defendant 11 OS No.6914/2005 is true. The 1st defendant was resident of Nandinathapura, Mysore District and was managing agricultural farm is true. There was no need to sell the suit schedule property. He did not enter into any such agreement with respect to the suit schedule property with the plaintiffs.
The 1st defendant had agreed to execute a General Power of Attorney in favour of 1st plaintiff and he executed a registered General Power of Attorney in favour of 1st plaintiff to do all acts connected with the construction of the building is correct.
Since the 1st plaintiff was a builder, he entrusted him to construct a house on the suit schedule property. The 1st plaintiff had taken signatures of the 1st defendant on certain documents with respect to the construction work. The taxes were also paid by the 1st defendant himself.
The plaintiffs got a residential building constructed in the year 1981 on the schedule site at the cost of about Rs.3,00,000/- at the instance of the 1st defendant. He constructed the residential house through the plaintiffs, the 12 OS No.6914/2005 plaintiff No.1 was entrusted with the construction work. The entire construction cost was borne by the defendant No.1. The 1st defendant further denies that the plaintiffs have been in peaceful possession of the residential building thereon constructed by them. He had authorized the plaintiff's to put any tenant in the suit schedule property and to collect the rents and take care of the building on his behalf. However, the plaintiffs appear to have occupied the building recently with a malafide intention.
The plaintiffs have paid the same out of the rents derived from the schedule property. The defendant No.1 had authorized the plaintiffs accordingly. He is the allotte of the suit schedule site. He paid entire amount to the BDA. Since he was looking after his farm at Nandinathapura he had some difficulty to look after the construction work at Bangalore. The plaintiffs are related to the father-in-law of the defendant No.1. They were close to his father-in-law and had jointly participates with him in few building ventures, as the plaintiff No.1 is an architect by profession and has been in 13 OS No.6914/2005 construction business. Hence, the defendant No.1 also entrusted the construction work to the plaintiff. Accordingly, the plaintiffs took some signatures stating that the same are very much needed to file different application before different authorities to get license for construction, electricity, water and sanitary etc. since they were close to the father-in-law of the defendant No.1 the defendant No.1 put his signature on certain papers under those circumstances the plaintiffs also got the registered papers of attorney on the pretext that the statutory authorities do not recognize the plaintiffs whenever they approach for some clearance with regard to construction. The plaintiffs used to visit his farm house regularly.
The defendant No.1 had sufficient amount with him. He paid entire construction cost and other charges, which were required at the time of construction to the plaintiffs. He had also authorized the plaintiffs to put a tenant in the schedule premises since they are the residents of Bangalore.
The plaintiffs promised to collect the rents and pay the same regularly to defendant No.1. Since they were very close 14 OS No.6914/2005 the defendant No.1 agreed for the same. But, the plaintiffs failed to pay rents with respect to the suit schedule property after their occupation that the scrumptiously.
The real estate values in the Bangalore and surrounding areas have been increasing day by day. It is very difficult for the middle class people to get residential sites in Bangalore that too in areas developed by the BDA. Hence, the plaintiffs with a malafide intention have come up with this case based on got up documents.
He neither had entered into an agreement of sale with respect to the suit schedule property with the plaintiffs nor had executed any receipts further. The suit is barred by limitation. Hence, prayed to dismiss the suit.
5. The defendant No.2 appeared before the court through his counsel and filed written statement contending that the suit schedule property was allotted initially in favour of the 1st defendant and lease cum sale deed was executed in favour of the 1st defendant by him on 10.8.1978 with the 15 OS No.6914/2005 condition that the 1st defendant shall not dispose of the said site for a period of 10 years. The averments made by the plaintiffs stating that an agreement to sell was executed by the 1st defendant in favour of the plaintiffs with respect to suit schedule property is not within the knowledge of him.
The defendant No.2 has no power to execute the absolute sale deed in favour of plaintiff on the basis of the agreement to sell executed by 1st defendant in favour of plaintiff.
The 1st defendant has approached the defendant vide letter dated 2.8.2005 and requested to execute absolute sale deed in his favour is true. The defendant has no power to execute an absolute sale deed in favour of the plaintiffs and the defendant has all powers to proceed further and execute an absolute sale deed in favour of the 1st defendant. Hence, prayed to dismiss the suit.
6. On the basis of the pleadings of the parties, my predecessor in office framed the recasted issues as under: 16 OS No.6914/2005
1) Whether the plaintiffs prove that the 1st defendant executed a registered agreement of sale dated 28.3.1980 in their favour?
2) Whether the plaintiffs are entitled to specific performance of the contract?
3) Whether the plaintiffs are entitled to the permanent injunction sought for?
4) To what decree or order?
7. The 1st plaintiff in order to prove the case examined himself as PW1 and got marked Ex.P.1 to P.55. The 2nd plaintiff examined herself as PW2 and got marked Ex.P.56 to P.64. The plaintiffs also examined 6 witnesses as PW3 to PW8. During the pendency of the suit, the plaintiffs No.1 and 2 are died and hence their LRs are brought on record as plaintiff No.1(a) and 1(b). During the course of cross-examination of DW1, the Advocate for the plaintiffs confronted one document and got marked the same as 17 OS No.6914/2005 Ex.P.65. Plaintiff No.1(a) examined himself as PW9 and got marked Ex.P.66 to 69. The plaintiffs examined Handwriting and Finger Print Expert as CW1 and got marked his report as Ex.C.1. The defendant No.1 examined himself as DW1 and got marked Ex.D.1 to D.22.
8. Heard the arguments and perused the records of the case.
9. My findings to the above issues are as under:
Recasted Issue : In the negative
No.1 to 3
Recasted Issue : As per the final order,
No.4 for the following;
REASONS
10. RECASTED ISSUE NO.1 TO 3:- Since these
issues are interconnected with each other hence in order to avoid repetition of facts and evidence they are taken together for common discussion.
18 OS No.6914/2005
11. The 1st and 2nd plaintiff filed their affidavits in lieu of examination-in-chief of PW1 and PW2 respectively and got marked Ex.P.1 to P.64. Ex.P.1 - registered agreement of sale dated 28.3.1980, Ex.P.2 - Possession certificate issued to defendant No.1, Ex.P.3 - C/c of General Power of Attorney dated 28.3.1980 executed by defendant No.1 in favour of plaintiff No.1, Ex.P.4 - License issued to plaintiff No.1 by defendant No.2, Ex.P.5 - Copy of letter dated 9.7.2005 sent to defendant No.1, Ex.P.6 - Letter dt.19.7.2005 sent to plaintiff No.1 by defendant No.1, Ex.P.7 - PF Pass book standing in the name of 2nd plaintiff, Ex.P.8 to 10 - passport, ration card and SBM Pass book of 1st plaintiff respectively, Ex.P.11 - Letter written by Canara Bank to plaintiff No.1, Ex.P.12 to 15 - telephone bills, Ex.P.16 - Letter written by Canara Bank to plaintiff No.1, Ex.P.17 & 18 - marriage invitation card and marriage registration certificate of son of plaintiffs, Ex.P.19 - Letter written to 1st plaintiff by the Government, Ex.P.20 to 22 - 3 telephone bills, Ex.P.23 - Letter written by Eastern Railway to plaintiff No.1, Ex.P.24 - 19 OS No.6914/2005 ration card of 1st plaintiff, Ex.P.25 to 27 - letters written by SBM to 1st plaintiff, Ex.P.28 - Marriage registration certificate of daughter of 1st plaintiff, Ex.P.29 - letter written by Karnataka Cricket Association, Ex.P.30 - Letter written by Income tax department, Ex.P.31 - Certificate issued by BESCOM, Ex.P.32 - Regd. Agreement certificate, Ex.P.33 to 50 - tax paid receipts, Ex.P.51 - letter regarding gas connection in the name of daughter-in-law of 1st plaintiff, Ex.P.52 - endorsement issued by BDA, Ex.P.53 - voters list, Ex.P.54 - another ration of 1st plaintiff, Ex.P.55 - C/c of sale deed, Ex.P.56 - complaint lodged by 1st plaintiff to the police, Ex.P.57 - acknowledgment of complaint lodged, Ex.P.58 - Pass port of 2nd plaintiff, Ex.P.59 - Canara Bank pass book of 2nd plaintiff, Ex.P.60 - License issued by Corporation to run Beauty parlour by the 2nd plaintiff and Ex.P.61 to 64 - photographs of House Warming Ceremony
12. The plaintiffs also examined 6 witnesses as PW3 to PW8. During the pendency of the suit, the plaintiffs No.1 and 20 OS No.6914/2005 2 are died and hence their LRs are brought on record as plaintiff No.1(a) and 1(b). During the course of cross- examination of DW1, the Advocate for the plaintiffs confronted sale deed dated 10.4.2002 and got marked the same as Ex.P.65. Plaintiff No.1(a) filed his affidavit in lieu of examination-in-chief of PW9 and got marked Ex.P.66 to 69. Ex.P.66 - Letter written by defendant No.1 to the BDA dated 10.1.1978, Ex.P.67 - lease cum sale agreement dated 28.6.1978, Ex.P.68 - Letter written by Secretary, BDA to the Sub-Registrar and Ex.P.69 - Affidavit of defendant No.1 given to BDA. The plaintiffs examined Handwriting and Finger Print Expert as CW1 and got marked his report as Ex.C.1. The defendant No. 1's counsel cross-examined PW 1 to 9 and CW1.
13. The defendant No.1 filed his affidavit in lieu of examination-in-chief of DW1 and got marked Ex.D.1 to D.22. Ex.D.1 & D2. - Copy of letters given to defendant No.2, Ex.D.3
- A copy of affidavit of defendant No.1 given to defendant 21 OS No.6914/2005 No.3, Ex.D.4 - A copy of indemnity bond executed by defendant No.1 in favour of defendant No.2, Ex.D.5 - copy of declaratory affidavit of 2nd plaintiff given to defendant No.2, Ex.D.6 - copy of endorsement issued by defendant No.2, Ex.D.7 - C/c of IA in OS.25852/2007 on the file of CCH-21, Ex.D.8 - C/c of affidavit filed along with IA in OS.25852/2007 on the file of CCH-21m, Ex.D.9 - Copy of application given to 2nd defendant, Ex.D.10 to 12 - Allotment of Site letter by Government of Karnataka, Ex.D.13 - pass book, Ex.D.14 - tax paid receipts, Ex.D.15 - water bills, Ex.D.16 - notice regarding self assessment, Ex.D.17 - self assessment of tax, Ex.D.18 - possession certificate, Ex.D.19 - letter written to 2nd defendant regarding issue of absolute sale deed, Ex.D.20 - C/c of Absolute sale deed, Ex.D.21 - C/c of lease cum sale agreement and Ex.D.22 - c/c of Absolute sale deed. The plaintiffs' counsel cross-examined the DW1.
14. It is admitted fact that the plaintiff No.1 and plaintiff No.2 are husband and wife respectively. It is 22 OS No.6914/2005 admitted fact that the plaintiffs and defendant No.1 are relatives. It is admitted fact that the defendant No.2 allotted the suit schedule property to the defendant No.1 under the lease cum sale agreement dated 28.06.1978 and issued possession certificate and handed over possession of the suit schedule property to him with a condition of non-alienation clause for a period of 10 years. It is admitted fact that the defendant No.1 executed Ex.P.3 - General Power of Attorney dated 28.3.1980 in favour of the plaintiff No.1 for construction of residential house in the suit schedule property.
15. It is the case of the plaintiffs that the defendant No.1 entered into agreement of sale dated 28.3.1980 agreeing to sell the suit schedule property for total sale consideration of Rs.65,000/- and on the same day he has received the advance sale consideration of Rs.15,000/-. 23 OS No.6914/2005
16. The learned Advocate appearing for the plaintiffs argued that the defendant No.1 agreed to sell the suit schedule property in favour of the plaintiffs by entering into agreement of sale dated 28.3.1980 for total sale consideration of Rs.65,000/- by receiving the advance sale consideration of Rs.15,000/-
17. The learned Advocate appearing for the defendant No.1 argued that the defendant No.1 has not executed agreement of sale dated 28.3.1980 and the defendant No.1 only executed the General Power of Attorney dated 28.3.1980 in the office of the Sub-Registrar and when the defendant No.1 executing the said General Power of Attorney, then the plaintiffs obtained signature of the defendant No.1 on certain documents without the knowledge of him and made use of the same to create the agreement of sale.
18. It is stated in the plaint that the defendant No.1 entered into agreement of sale dated 28.3.1980 agreeing to 24 OS No.6914/2005 sell the suit schedule property for total sale consideration of Rs.65,000/- to them and on the same day the defendant No.1 received Rs.15,000/-. The defendant No.1 denied the same and contended that the plaintiff No.1 had taken his signatures on certain documents stating that they require the same for the construction work in the suit schedule property.
19. The Ex.P.1-argreement of sale dated 28.03.1990 reveals that the defendant No.1 executed the same agreeing to sell the suit schedule property in favour of the plaintiffs No.1 and 2 for total sale consideration of Rs.65,000/- and on the very same day the defendant No.1 received the advance sale consideration of Rs.15.000/-, but it do not contain the signature of the plaintiff No.2. It is elicited in the cross- examination of PW1 that the plaintiff No.2 has not signed the Ex.P.1 and she has visited the office of Sub-Registrar after the execution of Ex.P.1. The PW2 in her examination-in-chief itself deposed that on 28.3.1980 she was participated in out door shooting and agreed to come to the Sub Registrar Office 25 OS No.6914/2005 before 2.00 p.m., but the shooting got delayed and when she went to the Office of Sub-Registrar, then the registration was already completed. The PW3 - S.V.Srinath, who is the Advocate and the scribe of Ex.P.1 deposed that the plaintiff No.2 has not signed the Ex.P.1. As the defendant No.1 disputed the execution of Ex.P.1 contending that the plaintiff No.1 had taken signatures of him on certain documents with respect to the construction of work as admittedly the defendant No.1 executed Ex.P.3- Power of attorney dated 28.03.1990 in favour of the plaintiff No.1 for construction of the building in the suit schedule property. Since the signature on Ex.P.1 is in a different manner when compared to the Ex.P.3 and the defendant No.1 disputed the Ex.P.1, hence the plaintiffs got appointed the Handwriting and Finger Print Expert for comparison of signature of defendant No.1 on Ex.P.1 and also the admitted signatures of the defendant No.1 on Ex.P.2 - Possession Certificate, Ex.P.66 - letter of the defendant No.1 to the BDA, Ex.P.67 - lease cum sale agreement issued by defendant No. 2 in favour defendant 26 OS No.6914/2005 No.1, Ex.P.68 - letter of the Sub - Registrar and Ex.P.69 - affidavit of the defendant No.1 given to defendant No.2 and received the report as per Ex.C.1 and the Handwriting and Finger Print was examined as CW1 and he has given his opinion that the admitted signatures of the defendant No.1 on Ex.P.2, P.66, P.67, P.68, P.69 tallies with the signatures on Ex.P.1 and during the course of the cross-examination of the CW 1 by the defendant No. 1's counsel nothing worth was elicited. So, it is clear that the defendant No.1 executed the Ex.P.1 agreeing to sell the suit schedule property in favour of the plaintiff No.1 only and the defendant No.1 has received the advance sale consideration of Rs.15,000/- on the same day from him.
20. It is further case of the plaintiffs that they were always ready and willing to perform their part of contract. The plaintiffs counsel argued that the defendant No.1 has given acknowledgment regarding receipt of Rs.50,000/- from the plaintiff, but the same is not available or lost and hence 27 OS No.6914/2005 the plaintiffs even now ready to pay the same with interest. The defendant No.1's counsel argued that the plaintiffs have not paid Rs.50,000/- to the defendant No.1 and thereby the plaintiffs were not ready and willing to perform their part of contract.
21. Section 16(c) of Specific Relief Act reads thus:
"Personal bars to relief: Specific performance of a contract cannot be enforced in favour of a person:
a).......
b).......
C)Who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract, which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant."
22. So, as per the above provision the plaintiffs, who are seeking Specific Performance of contract must plead in 28 OS No.6914/2005 the plaint and also prove the same through the oral and documentary evidence regarding their ready and willingness to perform their part of contract.
23. It is further case of the plaintiffs that under the Ex.P.1 they are liable to pay the amount of Rs.50,000/- on or before 1.9.1980 and accordingly paid the said amount and for that they have got acknowledgment. The defendant No.1 in the written statement denied the receipt of Rs.50,000/- from the plaintiffs. The plaintiffs though contending in the plaint the defendant No.1 issued a receipt titled as "To Whom it may concern" confirming the agreement of sale in the year 1994 and acknowleded the receipt of Rs.50,000/- in October and November 1980 but they have not produced any such acknowledgment or receipt before the court and on the other hand it is elicited in the cross-examination of PW1 as under:
" I do not have any document to show the payment of balance sale consideration of Rs.50,000/- on or before 1.9.1980.29 OS No.6914/2005
vÁ.28.03.1980 gÀ £ÀAvÀgÀ MAzÀ£Éà ¥ÀæwªÁ¢UÉ ºÀt PÉÆlÖ §UÉÎ £À£Àß°è zÁR¯É E®è."
24. So, from the above, it is clear that there is no document regarding payment of Rs.50,000/- to the defendant No.1. As stated above the defendant No.1 denied the receipt of remaining sale consideration of Rs.50,000/- on or before 1.9.1980. The PW7 - M.R.Narasimha Murthy, who is the Chartered Accountant deposed that in the year 1993 he has directed the 1st plaintiff to obtain acknowledgment confirming the payment of balance sale consideration of Rs.50,000/- towards the Ex.P.1 and the same was given to him by the 1st plaintiff, after some time it was returned to the 1st plaintiff. PW8 - Sham Kumar Goshal deposed that when he met the 1st plaintiff in summer of 1994 in the suit schedule property, then he was informed that the plaintiff No.1 has already paid the entire sale consideration for the site of his house and just than he has obtained acknowledgment from the 1st defendant as per the advise of his auditor. In the absence of alleged acknowledgment given by the defendant No.1 the evidence of 30 OS No.6914/2005 PW7 and PW8 in no way helpful to the case of the plaintiff. So, from this it is very clear that the plaintiffs have not shown that the balance sale consideration of Rs.50,000/- was paid on or before 1.9.1980 as per Ex.P.1.
25. In this regard, the defendant No.1's counsel relied on the ruling reported in ILR 1992 KAR 2294 (Chinnaswamy V/s Profulla), wherein their lordship held as under:
"A person seeking specific performance must be always ready and willing to perform her part of the agreement. No doubt in the matter of agreement of sale of immovable property time is not of the essence of the agreement unless it is specifically agreed to by the parties and followed by their conduct but the intended purchaser cannot drag on for an unreasonable length of time...... A person seeking specific performance of an agreement must approach the Court with clean hands. He or she should not suffer from or give rise to unrighteous conduct in a suit for specific performance, the plaintiff 31 OS No.6914/2005 who seeks specific performance of the agreement must not only adhere to the essential terms of the agreement, but not also suffer from lack of probity and lack of bonafides. Apart from the fact that the plaintiff must always be ready and willing to perform his/her part of the agreement, his/her conduct must be above board.... Hardship is not the only deciding factor in considering the question as to whether a decree for specific performance should or should not be granted. Several other circumstances enumerated in Section 16 and also Section 20 of the Act are to be taken into consideration.
A person seeking specific performance must be always ready and willing to perform her part of the contract. In the instant case, the plaintiff having failed to pay the aforesaid two sums if not on the date of the agreement atleast when reasonable period from the date of agreement, who are of the view that the plaintiff committed breach of terms of agreement and the suit also go to demonstrate that the plaintiff was not ready 32 OS No.6914/2005 and willing to perform her part of the agreement."
26. Further, the defendant No.1's counsel relied on the ruling reported in AIR 1999 Supreme Court 3029 (Syed Dastagir V/s T.R.Gopalakrishna Setty), wherein their lordship held as under:
"Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. Same plea may be stated by different persons through different words then how could it be constricted to be only in any particular nomenclature or word. Unless statute specifically require for a pleas to be in any particular form, it can be in any form. No specific phraseology on language is required to take such a plea. The language in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been ready and is willing to performed or has always been ready and wiling to perform his part of contract. So, the 33 OS No.6914/2005 compliance of readiness and willingness has to be in spirit and substance and not in letter and form. So, to insist for mechanical production of the exact words of statute is to insist for the form rather than essence. So, absence of form cannot dissolve an essence if already pleaded. In the instance case the pleading recites that all balance amount of the consideration under the contract has been paid by the plaintiff of which there is an endorsement by the defendant except the balance amount of Rs.120/-, about which also there is a specific plea that he has tendered the same in the Court. It is true in the pleading the specific word "ready and willing to perform" n the nomenclature is not there but can aforesaid plea could be read that plaintiff was not ready and willing to perform his part of the obligation and in other words, can it be said he ahs not pleaded that he is 'ready and wiling" to perform his part, the Court cannot draw any inference in obstruct or to give such hyper technical interpretation to defeat a claim of specific performance which defeats the very 34 OS No.6914/2005 objection for which the said Act was enacted. The Section makes it obligatory to a plaintiff seeking enforcement of specific performance, that he must not only come with clean hands but there should be a plea that he has performed or has been and is ready and willing to perform his part of the obligation. Unless this is there Section 16© creates a bar to the grant of this discretionary relief. For, this it is not necessary to plea by any specific words, if through any words it reveals the readiness and willingness of the plaintiff to perform his part of obligation, then it cannot be said there is a non-compliance of the said Section".
27. Further, the defendant No.1's counsel relied on the rulings reported in AIR 1993 Supreme Court 1742 (Smt.Chand Rani (dead) by LRs V/s Smt.Kamal Rani (dead) by LRs), where their lordship held as under:
" As regards the readiness and willingness, it is clear from the various documents that 35 OS No.6914/2005 the plaintiff, at all material times, was ready and willing to perform his part of the contract. Repeated notice were issued supported by telegrams, calling upon the defendant to complete the sale. Even latterly, notice was issued through advocate that the plaintiff never refused to make the payment and was ready to make the payment. Again, by September 24, 1977, this stand was resorted through advocate's notice. Delivery of possession was insisted upon because that was a part of the agreement that such possession must be handed over by September 30, 1971. The suit agreement must be read as a whole and the sequence of events ought to have been ascertained properly and as laid down in Nathulal v. Phoolchand [ 1969 (3) SCC 120 :
1970 (2) SCR 854]"
28. Further, the defendant No.1's counsel relied on ruling reported in 2008(3) KCCR 1756 (Bal Krishna and another V/s Bhagwan Das (dead) by LRs and others), wherein their lordship held as under:
36 OS No.6914/2005
8. Section 16 of the Specific Relief Act, 1963 (hereinafter referred to as the Act) corresponds with Section 24 of the old Act of 1877 which lays down that the person seeking specific performance of the contract, must file a suit wherein he must allege and prove that he has performed or has been ready and willing to perform the essential terms of the contract, which are to be performed by him. The specific performance of the contract cannot be enforced in favour of the person who fails to aver and prove his readiness and willingness to perform essential terms of the contract. Explanation
(ii) to clause (c) of Section 16 further makes it clear that plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.
The compliance of the requirement of Section 16(c) is mandatory and in the absence of proof of the same that the plaintiff has been ready and willing to perform his part of the contract suit cannot succeed. The first requirement is that he must aver in plaint and thereafter prove those averments made 37 OS No.6914/2005 in the plaint. The plaintiff s readiness and willingness must be in accordance with the terms of the agreement. The readiness and willingness of the plaintiff to perform the essential part of the contract would be required to be demonstrated by him from the institution of the suit till it is culminated into decree of the court. It is also settled by various decisions of this Court that by virtue of Section 20 of the Act, the relief for specific performance lies in the discretion of the court and the court is not bound to grant such relief merely because it is lawful to do so. The exercise of the discretion to order specific performance would require the court to satisfy itself that the circumstances are such that it is equitable to grant decree for specific performance of the contract. While exercising the discretion, the court would take into consideration the circumstances of the case, the conduct of parties, and their respective interests under the contract. No specific performance of a contract, though it is not vitiated by fraud or misrepresentation, can be granted if it would give an unfair 38 OS No.6914/2005 advantage to the plaintiff and where the performance of the contract would involve some hardship on the defendant, which he did not foresee. In other words, the court s discretion to grant specific performance is not exercised if the contract is not equal and fair, although the contract is not void.
29. Further, the defendant No.1's counsel relied on ruling reported in (1995) 5 Supreme Court Cases 115 (N.P.Thirugnanam (dead) by LRs V/s Dr.R.Jagan Mohan Rao and others), wherein his lordship held as under:
"It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under s.20 of the Specific Relief Act 1963 (for short, 'the Act'). Under s.20, the court is not bound to grant the relief just because there was valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and 39 OS No.6914/2005 prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As 40 OS No.6914/2005 stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract.
30. So, as held by the lordships in the above rulings relied by the plaintiff's counsel the ready and willingness to perform the part of contract by the purchaser is mandatory one and the same has to be complied in spirit and substance and the conduct of him must be above board in all materials times and the plaintiff No. 1 except averring in the plaint he did not place any scrap of paper to show that he was ready and willing to perform part of contract by paying the remaining balance consideration of Rs.50.000/- on or before 01.09.1980 and thereby the plaintiff No.1 committed breach of contract and hence it has to be held that he was not ready and willing to perform his part of contract. 41 OS No.6914/2005
31. It is further case of the plaintiffs that the defendant No.1 agreed to execute the sale deed after the expiry of lease period i.e. on and after the 16.3.1989 and the time is not the essence of contract.
32. The plaintiffs' counsel argued that time is not the essence of contract as the defendant No.1 has to execute the sale deed in favour of the plaintiffs after executing the sale deed by the defendant No.2. When the plaintiffs filed application before the defendant No.2 to execute the sale deed directly in their favour, then the defendant No.2 issued endorsement stating that it is not liable to execute the sale deed in favour of the plaintiffs and hence the plaintiffs issued legal notice to the defendant No.1 and thereafter filed this suit.
33. The defendant No.1's counsel argued that the contents of Ex.P.1 makes it clear that the time is essence of contract and the seeking for execution Sale Deed by the 42 OS No.6914/2005 plaintiff No.1 starts from 16.03.1989 till 15.03.1992 and not after the execution of Sale Deed by the defendant No. 2 in favour of defendant No.1 and hence the plaintiffs have to file the suit within 3 years from 16.03.1989.
34. The Section 55 of Indian Contract Act reads thus:
"Effect of failure to perform at a fixed time, in contract in which time is essential: When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promise, if the intention of the parties was that time should be of the essence of the contract Effect of such failure when time is not essential: if it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or 43 OS No.6914/2005 before the specified time; but the promise is entitled to compensation from the promisor for any loss occasioned to him by such failure.
Effect of acceptance of performance at time other than that agreed upon: If, in case of a contract voidable on account of the promisor's failure to perform his promise at the time agreed, the promise accepts performance of such promise at any time other than that agreed, the promise cannot claim the time agreed, unless, at the time of such acceptance he gives notice to the promisor of his intention to do so".
35. So, as per the above provision, when one party fails to perform the contract in time, then it provides two different remedies one is a case when the time of performance is the essence of contract and the other is when the time is not the essence of contract.
44 OS No.6914/2005
36. The defendant No.1's counsel relied on the ruling reported in AIR 1993 Supreme Court 1742 (Smt.Chand Rani (dead) by LRs V/s Smt.Kamal Rani (dead) by LRs), wherein it is held as under:
"In the case of sale of immovable property there is no presumption as to time being the essence of contract. Even if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the conditions are:
1) from the express terms of the contract
2) from the nature of the property and
3) from the surrounding circumstances, for example: the object of making the contract."
37. Further, the defendant No.1's counsel relied on the ruling reported in AIR 1997 Supreme Court 1751 (K.S.Vidyanadam and others V/s Vairavan), wherein it is held as 'while exercising the discretion the court should also bear in mind that when the parties prescribed certain time limit for taking steps by one or the other party, it must have some 45 OS No.6914/2005 significance and the said time limits could not be ignored altogether on the ground that time had not been made the essence of contract relating to immovable properties'.
38. The para No.2 of Ex.P.1 at Page No.2 reads thus:
"The title will be rendered absolute by the Bangalore Development Authority only on the expiry of the lease period and that is on and after 16.3.1989 and the vendor undertakes to execute a sale deed in favour of the Vendees immediately thereafter. However, the Vendor shall also apply to the Bangalore Development Authority to grant him permission to effect a sale of the property in favour of the Vendees on such terms and conditions that they may impose and in the event of permission being granted undertakes to effect a sale of the property forthwith without waiting for the expiry of the lease period on 16.3.1980."
39. As per the above clause and relying on the above decisions relied by the defendant No.1's counsel the terms of 46 OS No.6914/2005 Ex.P.1 discloses that irrespective of the fact that whether the defendant No.2 executes sale deed in favour of the defendant No.1 or not as on 15.3.1989 the non-alienation period of 10 years will complete as mentioned in Ex.P.2 - possession certificate. As mentioned in Ex.P.1 the time for executing the sale deed by the defendant No.1 in favour of the plaintiff No.1 starts from 16.3.1989 till 15.3.1992. As rightly argued by the defendant No.1's counsel that in Ex.P.1 it is not mentioned the defendant No.1 has to execute the Sale Deed in favour of the plaintiffs after executing Sale Deed by the defendant No. 2 and hence the plaintiff No. 1 cannot contended that he is entitled to get the Sale Deed after execution of Sale Deed by the defendant No. 2 in favour of defendant No.1. If such being the true contention of the plaintiff No.1 then he would not have filed this suit and he would have waited to file the suit till the execution of Sale Deed by the defendant No.2 in favour of defendant No.1. So, the terms of Ex.P.1 makes the same as the time is essence of contract.
47 OS No.6914/2005
40. The defendant No.1's counsel relied on the ruling reported in ILR 2005 KAR 2421 (K.Narayanareddy V/s Ramakrishna Reddy), wherein his lordships held as under:
"A) SPECIFIC RELIEF ACT, 1963 - SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT UNDER - HELD: It is for the plaintiff to come forward to perform his part of the obligation either by way of issuing legal notice seeking for execution of the sale deed or to make a demand for execution of the sale deed before the expiry of three years as required under Art. 54 of the Limitation Act.".
41. As held by their lordships in above said ruling relied by the defendant No. 1's counsel in the plaint it is not whispered that from 16.3.1989 till 15.3.1992 the plaintiff No.1 either orally requested the defendant No.1 to execute the sale deed or sent any legal notice to him to execute the sale deed. So, relying on the above rulings relied by the defendant No.1's counsel though the suit schedule property is a immovable property but the time is essence of contract. 48 OS No.6914/2005
42. It is the case of the defendant No.1 that the suit of the plaintiffs is barred by limitation. The plaintiffs counsel argued that when the defendant No.2 refused to execute the sale deed directly in favour of the plaintiffs, then it has become necessary to file the suit. The defendant No.1's counsel argued that as per Ex.P.1 from 16.3.1989 the defendant No.1 if any was under the obligation to execute the sale deed, but this suit is filed on 22.7.2005 and hence the suit is barred by limitation.
43. The Article 54 of the Limitation Act reads thus:
Description of Period of Time from which suit limitation period begins to run
54. For specific Three years The date fixed for the performance of a performance, or if no contract such date is fixed, when the plaintiff has notice that performance is refused.49 OS No.6914/2005
44. The plaintiffs' counsel further relied on the ruling reported in ILR 1992 KAR 429 (Guru Rao V/s Subba Rao), wherein their lordship held as under:
"In a case where the agreement fixed the date of performance of the agreement, whether that date has expired or not, if the very agreement is denied, the person in whose favour the agreement is executed is required to exercise his right within a period of three years from the date of knowledge or notice of the fact that the agreement is denied. Therefore, filing of suit by plaintiff seeking possession of the suit schedule property from the defendant, who was in possession of it pursuant to the agreement of sale and the possession was sought on the basis that it was illegal possession, amounted to repudiating the agreement of sale. Therefore, the defendant is required to enforce the agreement within a period of three years from the date of knowledge of the denial of the agreement".50 OS No.6914/2005
45. So, as per the above provision and as held in the above ruling, if the date is fixed for execution of the Sale Deed, then there is 3 years time for getting the Sale Deed from that date and if the date not fixed then there is 3 years time for getting the Sale Deed from the date of refusal.
46. Admittedly, at the time of Ex.P.1 the suit schedule property is a site property. As stated above, as per Ex.P.1 for seeking the execution of sale deed by the plaintiffs from the defendant No.1 starts from 16.3.1989 and they have got time for seeking to execute the Sale Deed till 15.3.1992. The plaintiffs filed this suit on 22.7.2005 showing the cause of action stating that they have issued the notice for performance of contract on 9.7.2005 and for that the defendant No.1 issued the reply refusing the performance of contract. The plaintiffs have to seek the execution of sale deed from the defendant No.1 from 16.3.1989 till 15.3.1992. Hence, relying on the above decisions relied by the defendant No.1's counsel the suit is barred by limitation. 51 OS No.6914/2005
47. It is the case of the plaintiffs that under the Ex.P.3 the plaintiffs were put in possession of the suit schedule property as part performance and thereafter they have constructed building in it and residing there and the defendant No.1 is trying to interfere with their possession and enjoyment of it.
48. The plaintiffs' counsel argued that in pursuance of Ex.P.1 the defendant No.1 put the plaintiffs in possession of the suit schedule property and thereafter the plaintiff No.1 constructed building in it. The plaintiff No.1 is only an architect and he never takes up the construction work for others. The possession of the plaintiff No.1 is as part performance as contemplated under Section 53A of the Transfer of Property Act.
49. The defendant No.1's counsel argued that there is no mentioning about the delivery of possession of the suit schedule property to the plaintiff No.1 in Ex.P.1 and also no 52 OS No.6914/2005 document to show that the suit schedule property was delivered to the plaintiff No.1 to attract Section 53A of Transfer of Property Act. When the plaintiffs have not paid Rs.50,000/- towards balance sale consideration and hence it cannot be believed that they have constructed building in the suit schedule property. The plaintiff No.1 constructed the building on behalf of the defendant No.1 and the entire construction cost was borne by him and the plaintiffs let out the suit schedule property on behalf of the defendant No.1 and used to give the rent amount to the defendant No.1.
50. The Section 53A of Transfer of Property Act reads thus:
"53A. Part performance.--Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the 53 OS No.6914/2005 property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that 2[***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."54 OS No.6914/2005
51. So, as per the above provision to constitute part performance there must be a written contract and under that contract the transferee has to take possession of the property and in pursuance of the said contract the transferee has to perform his part of contract or is ready and willing to perform his part of contract.
52. The plaintiff No.1 to claim the benefit under Section 53A of Transfer of Property Act in pursuance of the agreement of sale he has to take possession of the property and there must be document for taking possession of it. As stated above, in Ex.P.1 there is no mention of taking possession of the suit schedule property by the plaintiff No.1. Admittedly, the defendant No.1 handed over possession of the suit schedule property to the plaintiff No.1 under the Ex.P.3
- General Power of Attorney. Taking possession of the suit schedule property under the Ex.P.3 do not amounts to taking of possession of it under the Ex.P.1. During the course of the cross-examination of the PW1 it is elicited as under: 55 OS No.6914/2005
".............Likewise I do not have any document to show handing over possession of the suit schedule property to me either on the date of Ex.P.1 or subsequently ........... D vÁjÃTãÀ £ÀAvÀgÀ ¸ÀévÀÛ£ÀÄß £À£Àß ¸Áé¢üãÀPÉÌ PÉÆlÖ §UÉÎ ¥ÀævÉåÃPÀ zÁR¯ÉUÀ¼ÀÄ K£ÀÄ E®è. vÁjÃRÄ. 28.03.1980 gÀAzÀÄ ¸ÀévÀÛ£ÀÄß ¸Áé¢üãÀ PÉÆlÖ §UÉÎ zÁR¯É E®è.
53. So, there is no document in favour of the plaintiff No.1 regarding taking of possession of the suit schedule property from the defendant No.1 on the date of Ex.P.1 or subsequently. The Ex.P.3 is the General Power of Attorney, under which the plaintiff No.1 is authorized to construct building in the suit schedule property and in that it is mentioned that the plaintiff No.1 is appointed as his attorney to do all acts connected with construction of house on the site and also to let out the same thereafter. In the plaint also the same is mentioned. It is elicited in cross-examination of PW1 as under:
56 OS No.6914/2005
" I am an Architect. I do consultation work. Besides that I under take contract work of close friends and relatives...........
54. So, the plaintiff No. 1 also under takes contract work of building of friends and relatives. Admittedly the defendant No. 1 is the relative of the plaintiffs. Further it is elicited in the cross-examination of PW1 as under:
" zÁªÁ ¸ÀéwÛ£À°è ºÁ° ¸ÀÄzÀ±Àð£ï JA§ ¨ÁrUÉzÁgÀgÀÄ EzÁÝgÉ. PÀlÖqÀzÀ°ègÀĪÀ JgÀqÀÄ gÀÆAUÀ¼ÀÄ £À£Àß ¸Áé¢üãÀzÀ°è EªÉ. DzÀgÉ ¸ÀÄzÀ±Àð£ï ªÀÄvÀÄÛ £ÀªÀÄä £ÀqÀÄªÉ DVgÀĪÀ °Ã¸ï rÃqï£À°è ¥ÀÇtð PÀlÖqÀ ¸ÀÄzÀ±Àð£ï CªÀjUÉ °Ã¸ï DVgÀĪÀ §UÉÎ §gÉ¢zÉ. £Á£ÀÄ gÁeÉÃAzÀæ CªÀgÀ ¥ÀªÀgï D¥sï DmÁ¤ð DV °Ã¸ï rÃqï ªÀiÁrPÉÆnÖzÉÝÃ£É JAzÀÄ ºÉýzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÀÄzÀ±Àð£ï D PÀlÖqÀzÀ°è ºÉÆÃmÉ¯ï £ÀqɸÀÄvÁÛgÉ. ¸ÀÄzÀ±Àð£ï «gÀÄzÀÞ ¨ÁrUÉ ¸ÀjAiÀiÁV PÉÆqÀÄwÛ®è. PÀlÖqÀ SÁ° ªÀiÁr JAzÀÄ 1£Éà ¥ÀæwªÁ¢ gÁeÉÃAzÀæ NJ¸ïB£ÀAB6922B2010 gÀ°è zÁªÁ ºÀÆrzÁÝègÉ."57 OS No.6914/2005
55. So, the above answer of PW1 during the course of cross-examination discloses that the tenant by name Sudarshan is running hotel in most of the portions of the suit schedule property and in this regard there are no pleadings in the plaint. Though the plaintiffs produced many documents showing their address to the suit schedule property when the possession of the suit schedule property was not under Ex.P.1 as per section 53A transfer of property Act then these documents will not prove the case of the plaintiffs that they are in possession and enjoyment of the suit schedule property in pursuance to Ex.P.-1.
56. The PW1 and PW2 denied that the defendant No.1 has given the amount for construction of building in the suit schedule property. The PW5 - N.Ramanna, who is said to be the Civil Engineer working under the plaintiff during 1969 to 1992 deposed that he has supervised the construction of building in the suit schedule property, which was constructed by the 1st plaintiff for his own use, but during the course of 58 OS No.6914/2005 cross-examination he deposed that he do not know that who was giving the amount for construction of the said building. The PW6 - R.Vishwanath, who is the contractor, deposed that the 1st plaintiff entrusted him the work of construction of building in the suit schedule property for his own use and all the payments of the work was made by 1st plaintiff through the PW5. As stated above, when the PW5 deposed in the cross-examination that he do not know who was giving the amount for construction of building, then the evidence of the PW5 and PW6 is in no way helpful to the case of the plaintiff. On the other hand, as stated above, the defendant No.1 contended that he has given the amount for construction of building in the suit schedule property and in this regard the defendant No.1 produced Ex.D.13 - Pass book of Sate Bank of Mysore which is not disputed by the plaintiffs. There is force in the arguments of defendant No.1's counsel that when the plaintiff No.1 unable to pay the balance sale consideration of Rs.50,000/- to the defendant No.1, then he cannot construct building in the suit schedule property. 59 OS No.6914/2005
57. In this regard, the plaintiffs' counsel further relied on the rulings reported in (2017) 4 Supreme Court Cases 723 (Vasanthi V/s Venugopal (dead) through Legal Representatives), wherein their lordships held as under:
"It was however underlines that if the condition precedent, as enumerated, in Section 53A of the Act, are complied with, the law of limitation would not come in the way of the said person to avail the benefit of the protection to his possession as extended thereby even though a suit for specific performance of a contract by him had gone barred by limitation. Explicitly therefore, though mere expiry of the period of limitation for a suit for specific performance may not be a bar for a person in possession of an immovable property in part-performance of a contract for transfer thereof for consideration to assert the shield of Section 53A of the TP Act, it is nevertheless imperative that to avail the benefit of such protection, all the essential prerequisites therefore would have to be obligatorily complied with."60 OS No.6914/2005
58. In this regard, the defendant No.1's counsel relied on the ruling reported in ILR 1992 KAR 429 (Gururao V/s Subba Rao), wherein it is held as under:
"HELD: Section 53A incorporates doctrine of equity. Therefore, in order to invoke the protection under the doctrine of part performance, the person invoking, must possess the right to enforce the agreement of sale. If the right under the agreement is lost by Law of Limitation, even it is lost during the pendency of the suit, it is open to the party to take advantage of the same and the Court to take note of it. The delay defeats equity. When the person in possession of the suit property loses his right to remain in possession, he cannot resist the suit of the true owner for possession of the same."
59. Further the defendant No.1's counsel relied on the ruling reported in 2008(1) KCCR 27 (Venkatesh and others V/s D.A.C.Venkoosa), wherein his lordship held as under:
"The Court held that the readiness and willingness is not only the requirement 61 OS No.6914/2005 contemplated under Section 16(c) of the Specific Relief Act, but it is also requirement of Section 53A of the Transfer of Property Act.
The Court also held further that the readiness and willingness is not only by formal pleading but is required to be shown by both capacity as well as by mental attitude.
As regards to part performance of the contract, learned Counsel for the plaintiff submitted that, Ex.P.7 is alleged agreement alleged to have been entered between the vendor of the plaintiff and the deceased Balappa. In the entire agreement, there is no reference of the deceased Balappa having been put in possession in part performance of the agreement not even a whisper that the change of status from that of tenant to the agreement holder. He relied on Section 53A of the Transfer of Property Act and submitted that, a perform put in possession in part performance of the contract cannot continue in possession without showing his 62 OS No.6914/2005 readiness and willingness to perform his part of contract.
Merely because, the defendant collected rents from the other tenants, does not either prove their possession under Section 53A of the Transfer of Property Act, nor is proved any title in them. Neither under Ex.P.7 - the agreement nor any other evidence shows that the Balappa was put in possession""
60. So, as held by their lordships in the above rulings, the plaintiff No.1 must be in possession of the suit schedule property under the agreement of sale or under any document. I already came to the conclusion that the plaintiff No,1 was not always ready and willing to perform his part of contract and the suit is barred by limitation. When such being the case, The plaintiff No.1 cannot take shelter under Section 53A of Transfer of Property Act and contend that he is in possession of the suit schedule property in pursuance of Ex.P.1.
63 OS No.6914/2005
61. When the plaintiff No. 1 failed to prove his possession over the suit schedule property in pursuance of the agreement of sale, then question of considering the interference by the defendant No.1 does not arise for consideration.
62. The defendant No.1's counsel argued that the Ex.P.1 is alleged to be enter before completion of non- alienation period of 10 years and hence it is not valid and unenforceable contract and it suffers from the defect, which makes the contract invalid and unenforceable.
63. The learned Advocate appearing for the defendant No.2 argued that when the suit schedule property was allotted to the defendant No.1 on the condition of non- alienation period of 10 years and before completion of the same the defendant No.1 cannot enter into agreement of sale with the plaintiffs. If the defendant No.1 has got any reasonable grounds, then as per the Allotment Rules of BDA 64 OS No.6914/2005 would have obtained the sale deed from the BDA before completion of 10 years and then the defendant No.1 would have entered into agreement of sale or would have executed registered sale deed in favour of the plaintiffs and hence the Ex.P.1 is invalid and unenforceable.
64. The Defendant No.2's counsel produced the BDA(allotment of sites) ( Amendment) rules 2005 and in that the rule No. 14 reads thus:
Restrictions, conditions on sales of sites-
(1) The allottee shall not alienate the site within the lease period of ten years except mortgaging the site in favour of Government of India or the State Government or any financial institutions for the purpose of securing loan for the construction of building. (2). If the site is alienated within the lease period except for the purpose specified in sub-
rule(1) the authority after a due notice to the lease, shall cancel the allotment, resume the site and forfeit the amount paid by the lessee. (3) Not withstanding anything contained in these rules if the lessee applies for reasons beyond hi 65 OS No.6914/2005 control or by reasons of his insolvency or impecuniosities to sell the site or the site with the building constructed thereupon the authority may, with the previous approval of the Government either-
(a) Require him to surrender the site, whereupon no building is constructed. The authority after such surrender shall pay to the lessee the allotted value of the site together with the interest at the rate of 12% per annum thereon;
(b) Where the building is contracted on the site so allotted the authority shall permit him to sell the building provided the lessee pays to the authority an amount calculated at 12% per annum on the allotted value of the site".
65. So, as per the above allotment rules of BDA the allottee is not entitled to alienate the same within the non alienation clause and for any reason allottee wants to sell the site it is with the approval of the Government subject to payment of certain amount.
66 OS No.6914/2005
66. As stated above, the Ex.P.1 was entered in between the plaintiff No.1 and defendant No.1 before the completion of non-alienation period of 10 years and then the defendant No.1 was not having right to transfer the same in any manner in that period and hence Ex.P.1 becomes invalid and unenforceable contract without complying the respective BDA Allotment Rules.
67. In this regard, the defendant No.1's counsel and also the counsel for the defendant No.2 relied on the ruling reported in AIR 2016 Supreme Court 737 (Satish Kumar V/s Karan Singh and another), wherein their lordship held as under:
"The jurisdiction to order specific performance of contract is based on the existence of a valid and enforceable contract. Where a valid and enforceable contract has not been made, the Court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract 67 OS No.6914/2005 invalid or unenforceable. The discretion of the Court will not be there even though the contract is otherwise valid and enforceable. In the present case, the defendant agreed to sell his right by receipt-cum-agreement and the plot to be allotted at a price of Rs.4,60,000/- and the High Court passed decree for specific performance without noticing the fact that during the pendency of the lis DDA allotted the plot in question in favour of the deceased father of the defendant (original plaintiff) by executing a lease deed putting a condition that the plot in question will remain non-transferable for a period of ten years. Held, the order of High Court cannot be sustained in law in as much as no decree for specific performance can be passed on the basis of the alleged receipt-cum-agreement."
68. The defendant No.2's counsel relied on the ruling reported in ILR 1995 KAR 570 (Ramachandraiah V/s Nagappa Naidu), wherein their lordship held as under: 68 OS No.6914/2005
"In this case, the Court was concerned with a situation wherein the vendor had an imperfect title even though he claimed that he has acquired interest in the property and the question arose as to whether he could be compelled to transfer that limited interest to the vendee. The Court after considering the scope of Section 18-A of the Specific Relief Act held that in the absence of the vendor having a perfect title, that it was not permissible to enforce an order for specific performance in respect of such a title. It is obvious, that the interest that can be conveyed is necessarily a 100% interest which the vendor possesses and where the title is imperfect or where as in the present case there is bar to the alienation and therefore, the title cannot be conveyed, it is not competent for a Court to order specific performance."
69. So, as held by their lordships in the above said rulings, during the non-alienation period the defendant No.1 had no title to the suit schedule property before entering into 69 OS No.6914/2005 the agreement of sale, then it makes the Ex.P.1 invalid and unenforceable contract as on that date the defendant No.1 was only a lessee of the suit schedule property.
70. So, to put it in nutshell though the plaintiff No.1 proved that the defendant No.1 executed the Ex.P.1 - agreement of sale agreeing to sell the suit schedule property for Rs.65,000/- in favour of him and on the same day he has received the advance sale consideration of Rs.15,000/-, but the plaintiff No.1 failed to pay the balance sale consideration of Rs.50,000/- on or before 1.9.1990 to the defendant No.1 and thereby the plaintiff No. 1 was not ready and willing to perform his part of contract and as per the clause of Ex.P.1 the getting of the sale deed starts from 16.3.1989 till 15.3.1992 after completion of non alienation clause of 10 years and under the Ex.P.1 or any other document the defendant No.1 has not put the plaintiff No.1 in possession of the suit schedule property and in the period between 16.03.1989 and 15.03.1992 plaintiff No.1 either 70 OS No.6914/2005 requested the defendant No. 1 to execute the sale deed or issued notice to execute the sale deed and filed this suit on 22.07.2005, which is barred by limitation and thereby viewed from any angle the plaintiff No.1 is not entitle for specific performance of contract and permanent injunction.
71. So, from the discussion made above, I am of the opinion that the plaintiffs proved that the defendant No.1 agreed to sell the suit schedule property under the agreement of sale dated 28.3.1990 for total sale consideration of Rs.65,000/- and on the very same day he has received the advance sale consideration of Rs.15,000/- from the plaintiff No.1 and the plaintiffs are not entitle for specific performance of contract and permanent injunction as the plaintiff No.1 was not ready and willing to perform his part of contract and suit is barred by limitation. Hence, recasted Issue Nos.1 to 3 are answered in the negative.
71 OS No.6914/2005
72. RECASTED ISSUE NO.4:- In view of my findings on recasted Issue Nos.1 to 3 in the negative and against the plaintiffs, the plaintiffs are not entitle for the reliefs sought for and in the result, I proceed to pass the following:-
ORDER The suit of the plaintiffs is dismissed with costs.
Draw decree accordingly.
(Dictated to the judgment writer on computer, thereafter corrected and then pronounced by me in the open court, on this the 11th day of October 2018).
( BASAVARAJ ) XLI ADDL.CITY CIVIL JUDGE BANGALORE ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 : C.R.Shivakumar
P.W.2 : Smt.Uma Shivakumar
P.W.3 : S.V.Srinath
72 OS No.6914/2005
P.W.4 : U.S.Shankar
P.W.5 : N.Ramanna
P.W.6 : R.Viswanath
P.W.7 : M.R.Narasimha Murthy
P.W.8 : Shyamal Kumar
P.W.9 : C.S.Harsha
b) Defendants' side:
D.W.1 : H.C.Rajendra
II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 Regd. Agreement of sale dated
28.3.1980
Ex.P.1(a) to (g) Signature of defendant No.1 Ex.P.2 Possession certificate issued to defendant No.1 and later on handed over to PW1 Ex.P.3 C/c of General Power of Attorney dated 28.3.1980 executed by defendant No.1 in favour of PW1 Ex.P.4 License issued to PW1 by defendant No.2 73 OS No.6914/2005 Ex.P.5 Copy of letter dated 9.7.2005 sent to defendant No.1 Ex.P.6 Letter dt.19.7.2005 sent to PW1 by defendant No.1.
Ex.P.7 PF Pass book standing in the name of 2nd plaintiff Ex.P.8 Passport of 1st plaintiff Ex.P.9 Ration card of 1st plaintiff Ex.P.10 SBM Pass book of 1st plaintiff Ex.P.11 Letter written by Canara Bank to plaintiff No.1 Ex.P.12 to 15 4 Telephone bills Ex.P.16 Letter written by Canara Bank to plaintiff No.1 Ex.P.17 Marriage invitation card of son of 1st plaintiff Ex.P.18 Marriage Registration Certificate of son of 1st plaintiff Ex.P.19 Letter written to 1st plaintiff by the Government Ex.P.20 to 22 3 Telephone Bills Ex.P.23 Letter written by Eastern Railway to plaintiff No.1.
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Ex.P.24 Ration card of 1st plaintiff Ex.P.25 to 27 Letters written by SBM to 1st plaintiff Ex.P.28 Marriage registration certificate of daughter of 1st plaintiff Ex.P.29 Letter written by Karnataka Cricket Association Ex.P.30 Letter written by Income tax department Ex.P.31 Certificate issued by BESCOM Ex.P.32 Regd. Agreement certificate Ex.P.33 to 50 Tax paid receipts Ex.P.51 Letter regarding gas connection in the name of daughter-in-law of 1st plaintiff Ex.P.52 Endorsement issued by BDA Ex.P.53 Voters list Ex.P.54 Another ration of 1st plaintiff Ex.P.55 C/c of sale deed Ex.P.56 Complaint lodged by 1st plaintiff to the police Ex.P.57 Acknowledgment of complaint lodged Ex.P.58 Pass port of 2nd plaintiff 75 OS No.6914/2005 Ex.P.59 Canara Bank pass book of 2nd plaintiff Ex.P.60 License issued by Corporation to run Beauty parlour by the 2nd plaintiff Ex.P.61 to 64 Photographs of House Warming Ceremony Ex.P.61(a) to Negatives 64(a) Ex.P.65 C/c of sale deed dated 10.4.2002 Ex.P.66 Letter written by defendant No.1 to the BDA dated 10.1.1978 Ex.P.66(a) Signature of defendant No.1 Ex.P.67 Lease cum sale agreement dated 28.6.1978 Ex.P.67(a) Signature of defendant No.1 Ex.P.68 Letter written by Secretary, BDA to the Sub-Registrar Ex.P.68(a) Signature of defendant No.1 Ex.P.69 Affidavit of defendant No.1 given to BDA Ex.P.69(a) Signature of defendant No.1
b) Defendants' side :
Ex.D.1 Copy of letter given to defendant 2 76 OS No.6914/2005 Ex.D.2 Another copy of letter given to defendant No.2 Ex.D.3 A copy of affidavit of defendant No.1 given to defendant No.3 Ex.D.4 A copy of indemnity bond executed by defendant No.1 in favour of defendant No.2 Ex.D.5 A copy of declaratory affidavit of 2nd plaintiff given to defendant No.2 Ex.D.6 A copy of endorsement issued by defendant No.2 Ex.D.7 C/c of IA in OS.25852/2007 on the file of CCH-21 Ex.D.8 C/c of affidavit filed along with IA in OS.25852/2007 on the file of CCH-21
Ex.D.9 Copy of application given to 2nd defendant Ex.D.10 to 12 Allotment of Site letter by Government of Karnataka Ex.D.13 Pass book Ex.D.14 7 tax paid receipts Ex.D.15 Water bills Ex.D.16 Notice regarding self assessment 77 OS No.6914/2005 Ex.D.17 Self assessment of tax Ex.D.18 Possession Certificate Ex.D.19 Letter written to 2nd defendant regarding issue of absolute sale deed Ex.D.20 C/c of Absolute sale deed Ex.D.21 C/c of lease cum sale agreement Ex.D.22 C/c of Absolute sale deed III.List of witnesses examined on behalf of Court Commissioner:
C.W.1 : R.Narayanappa
III. List of documents exhibited on behalf of Court
Commissioner:
Ex.C.1 : Court Commissioner Report
Digitally signed
by BASAVARAJ ( BASAVARAJ )
DN:
cn=BASAVARAJ, XLI ADDL.CITY CIVIL JUDGE
ou=GOVERNME BANGALORE
NT OF
BASAVARAJ KARNATAKA,o=
HIGH COURT
OF
KARNATAKA,st
=Karnataka,c=I
N
Date:
2018.10.11
17:23:53 IST
78 OS No.6914/2005