Bangalore District Court
Mr. Deepak .P. Sakaria vs Mr. Atul C. Doshi on 31 March, 2017
IN THE COURT OF XV ADDITIONAL CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY( CCH.No.3)
Dated this the 31st day of March, 2017
Present: Dr. A.GURUMURTHY, Ph.D
XV Additional City Civil & Sessions Judge,
Bangalore
O.S.No. 4172/2013
Plaintiff: Mr. Deepak .P. Sakaria, aged
about 19 years, S/o Mr. T.
Praveen Kumar, residing at
No.9, 'Babli Kunj', Jain Temple
Cross Road, V.V.Puram,
Bangalore-560004.
(By Sri.P.D.S, Advocate)
// VS //
Defendant: Mr. Atul C. Doshi, aged about
45 years, S/o Mr. Chandulal S.
Doshi, residing at Flat No.201,
2nd Floor, 'Soundarya Arcade',
Sheshadripuram, Bangalore-
560020.
(By Sri.M.N.N, Advocate)
Date of Institution of the
suit: 12/6/2013
Nature of the Suit (suit for Specific performance
pronote, Suit for
declaration and
possession, Suit for
2 O.S.No.4172/2013
injunction, etc.):
Date of the 27/1/2017
commencement of
recording of the Evidence:
Date on which the 31/03/2017
Judgment was
pronounced:
Total duration: Year/s Month/ Day/s
03 09 19
JUDGMENT
Plaintiff has filed this suit for the relief of specific performance of agreement of sale dated 9/1/2013 and to direct the defendant to execute the registered sale deed in favour of the plaintiff and to put him in possession of the suit property. Alternatively, in case of failure on the part of the defendant, to direct the staff to execute the sale deed in favour of the plaintiff in respect of suit property & to put the plaintiff in possession of the suit property. If for any reason, court comes to a conclusion that plaintiff is not entitled for the relief of specific performance of the sale agreement, alternatively, direct the defendant to refund a sum of Rs.35,00,000/- with interest @ 12% per annum from the date of receipt of money 3 O.S.No.4172/2013 till the date of repayment and to award damages of Rs.8,00,000/-.
2. Pleadings in brief.
It is the case of the plaintiff that defendant is the absolute owner of sites No.77 & 78, carved out in Sy.No.40 of Dasarahalli village, K.R.Puram Hobli, Bangalore South Taluk, measuring east-west 46 feet and north-south 60 feet, morefully described in the suit schedule.
3. It is the case of the plaintiff that in the year 2013, defendant has offered to sell the suit property to the plaintiff, to repay the loan to Rajesh Kumar and to meet his family necessities. In that regard, defendant has agreed to sell the suit property to the plaintiff for sum of Rs.42,00,000/- and he had entered into a sale agreement on 9/1/2013. On the day of execution of sale agreement, plaintiff' has given 3 cheques to the defendant for Rs.35,00,000/- bearing cheques No.193045, 193046, 193047 for Rs.30,00,000/-, 2,00,000/- and 3,00,000/- respectively drawn on State Bank of India, 4 O.S.No.4172/2013 Vishveshwarapur Branch, Bangalore. The cheque bearing No. 193045 has been issued in favour of Sri. Rajesh Kumar, at the instance of defendant and remaining two cheques referred supra were given to the defendant. Rajesh Kumar and defendant have encashed those three cheques and at the time of execution of sale agreement, defendant had agreed to hand over the original title deeds of suit property to the plaintiff i.e. after taking back those documents from Sri.Rajesh Kumar and that Rajesh Kumar was one of the consenting witness to the sale agreement and at the time of execution of sale agreement, two months time has been fixed to execute the sale deed, subject to furnishing of title documents, as required by the plaintiff's counsel to satisfy the marketable title of the defendant. As per clause 3.1 of the sale agreement, plaintiff has to pay the balance consideration of Rs.7,00,000/- to the defendant within two months from the date of sale agreement and he has kept ready that amount in his bank account to pay the balance consideration amount to the defendant and also arranged money to bear the registration and other incidental expenses. It is pleaded that, to register the sale deed in 5 O.S.No.4172/2013 respect of any immovable property the vendor has to obtain and produce latest katha extract, katha certificate, encumbrance certificate and tax paid receipts. In the instant case, defendant was under obligation to secure those documents and to discharge the mortgage. It is alleged that after execution of sale agreement, plaintiff had insisted the defendant to execute the sale deed on all several occasions and on all those occasions, defendant had assured that he will execute the sale deed by furnishing necessary documents and postponed the execution of sale deed in favour of plaintiff, in respect of suit property on one reason or the other. It is brought to the notice of the defendant that plaintiff has already paid substantial sale consideration of Rs.35,00,000/- to the defendant and he is ready and willing to pay the balance sale consideration of Rs.7,00,000/- and to get the sale deed from the defendant. Inspite of it, defendant has not came forward to execute the sale deed in favour of plaintiff, in respect of suit property. At last, on 5/4/2013 plaintiff has got issued a legal notice to the defendant, calling upon the defendant to execute the sale deed by receiving balance 6 O.S.No.4172/2013 consideration of Rs.7,00,000/-. After receipt of notice, defendant has given an untenable reply on 11/5/2013. After issuing reply to the legal notice, defendant has started constructing an house in the suit property, knowing fully well that sale agreement executed by him in favour of plaintiff is still in subsisting. It is alleged that defendant has taken up construct work in the suit schedule property only with an ulterior motive to defeat the rights of plaintiff.
4. It is further pleaded that as per clause 9 of the sale agreement, in the event of breach, parties are entitle to seek specific performance and to recover all costs, expenses and loss incurred. As such, plaintiff is entitle for specific performance of the sale agreement dated 9/1/2013 and to obtain the sale deed from the defendant in respect of suit property and contended that cause of action arisen to the suit on 9/1/2013, when defendant has executed sale agreement in favour of the plaintiff. Cause of action also arisen on 11/5/2013, when defendant has given reply.
7 O.S.No.4172/2013
5. Defendant has filed written statement and contended that suit is not maintainable either on facts or on law and it is admitted that defendant is the absolute owner of suit property, as pleaded in para 3 of the plaint and partly denied averments made in para 4 to 7 of the plaint and admitted that he had mortgaged the suit property in favour of one Sri. Rajesh Kumar and he was decided to sell away the suit property. After knowing about the same, plaintiff has approached the defendant and he had offered to purchase the suit property. After due discussion, defendant has agreed to sell the suit property to the plaintiff for a sum of Rs.42,00,000/-, as he was in urgent need of Rs.30,00,000/- to pay off the loan from Sri. Rajesh Kumar, as he has already undertaken to clear the loan balance in the first week of January 2013 and accordingly defendant had executed a sale agreement in favour of the plaintiff on 9/1/2013 and on the same day, plaintiff has given him a cheque for Rs.30,00,000/- bearing cheque No.193045 drawn on State Bank of India, Visveshwarapura Branch, Bangalore in favour of Rajesh Kumar at the instance of the defendant on the same day, 8 O.S.No.4172/2013 plaintiff has given two more cheques in favour of defendant bearing No.193046 & 193047 for Rs.2,00,000/- and Rs.3,00,000/- respectively. It is alleged that the cheque issued by the plaintiff in favour of Rajesh Kumar for Rs.30,00,000/- was dishonored. Soon after dishonour of the cheque, Rajesh Kumar informed the same to the defendant and insisted the defendant to pay the loan amount immediately. In that connection, defendant has borrowed hand loan from Srinivas Deepal, Gandhi and from Abhay Kumar and paid Rs.30,00,000/- to Rajesh Kumar and cleared off the debts. Immediately, defendant had informed the plaintiff as to the dishonour of the cheque and he had requested the plaintiff to cancel the sale agreement. Initially, plaintiff has agreed for the same and asked the defendant to return Rs.5,00,000/-. Defendant has agreed to repay the same. Later, defendant has came to know that Rajesh Kumar has once again presented the cheque and the same was honoured subsequently. After knowing about the same, defendant has collected that money back from Rajesh Kumar and tried to hand over the same to the plaintiff. At that time, 9 O.S.No.4172/2013 plaintiff was in Rajastan and he took some time to come back to Bangalore. In the meanwhile, defendant has contacted the plaintiff on several occasions and asked him to accept the entire advance amount of Rs.35,00,000/- and to cancel the sale agreement dated 9/1/2013. In that regard, plaintiff took time on one pretext or the other and he was kept quite for some days and then issued a legal notice on 16/4/2013. On receipt of legal notice, defendant was shocked and gave reply on 11/5/2013 along with copy of the Demand Draft bearing No.694075 for Rs.35,00,000/- drawn on City Union Bank Limited in favour of the plaintiff and requested the plaintiff to accept the D.D and to cancel the sale agreement. Defendant has denied averments made in para 8 of the plaint that plaintiff was always ready and willing to perform his part of contract and it is further denied that defendant has took time to secure certain documents and requested the plaintiff to grant some more time to obtain and handover certain documents, etc. As far as averments made in para 12 and 13 of the plaint is concerned, defendant has denied the allegations made in the plaint that soon after giving reply, 10 O.S.No.4172/2013 defendant has started construction etc. and it is pleaded that he has started construction prior to issuance of reply to the plaintiff and he has already constructed ground floor, 1st floor an 2nd floor and denied rest of the averments made in para 12 and 13 of the plaint and undertaken to repay Rs.35,00,000/- to the plaintiff with a nominal interest and at last it is contended that there is no cause of action for the suit and prayed the court to dismiss the suit.
6. Based upon pleadings, the following issues have been framed:
ISSUES
1. Whether plaintiff proves that defendant has agreed to sell the suit property to the plaintiff for a sum of Rs.42,00,000/- and executed a sale agreement in favour of the plaintiff on 9/1/2013 and received sale advance of Rs.35,00,000/- on the same day?
2. Whether plaintiff further proves that on 9/1/2013 delivered the possession of suit schedule property to the plaintiff and now plaintiff is in actual possession and enjoyment of the suit property?11 O.S.No.4172/2013
3. Whether plaintiff further proves that he is always ready and willing to perform his part of contract as prayed in para 8 of the plaint?
4. Whether plaintiff further proves that he is entitled for the relief of specific performance of the sale agreement dated 9/1/2013?
5. Whether plaintiff further proves that he is entitled for damages as prayed for?
6. What order?
7. After framing of issues GPA holder of the plaintiff has entered the witness box and he has been examined as PW.1 and at his instance 11 documents were got marked and closed plaintiff's side evidence. Thereafter, defendant has entered the witness box and he has been examined as DW.1 and at his instance 6 documents were got marked and closed defendants side evidence.
8. Heard arguments.
9. My findings on the above issues are as under:
ISSUE No.1 : In the affirmative.
ISSUE No.2 : Deleted.
ISSUE No.3 : In the negative.12 O.S.No.4172/2013
ISSUE No.4 : Party in the affirmative.
ISSUE No.5 : In the affirmative.
ISSUE No.6 : As per final order for the following:
REASONS
10. ISSUE No.1 & 3 : These two issues are taken together for common discussion to avoid repetition and overlapping, since these two issues are intrinsically interrelated to each other.
11. It is the case of the plaintiff that defendant is the absolute owner of suit property and he had offered to sell the suit property to the plaintiff for a sum of Rs.42,00,000/- and executed a sale agreement on 9/1/2013 and on the same day, plaintiff has paid a sum of Rs.35,00,000/- to the defendant and out of 3 cheques one cheque has been issued in favour of Rajesh Kumar at the instance of defendant for a sum of Rs.30,00,000/- bearing Cheque No.193045 drawn on SBI, Visveshwarpura Branch, Bangalore, to discharge the loan of the defendant and another two cheques were issued in favour of the defendant for Rs.2,00,000/- and Rs.3,00,000/-
respectively bearing cheque No.193046 and 193047 and those 13 O.S.No.4172/2013 two cheques were also drawn on SBI, Visveshwarapura Branch, Bangalore. The said Rajesh Kumar was one of the attesting witness to the sale agreement dated 9/1/2013. At the time of entering into sale agreement, defendant has agreed to execute the sale deed within two months by receiving balance sum of Rs.7,00,000/- and he has undertaken to produce the title document as required by plaintiff's counsel and then encashed all those 3 cheques. Later, defendant has not come forward to execute the sale deed. Hence, this suit for specific performance of the sale agreement dated 9/1/2013. It is the definite case of the plaintiff that plaintiff was always ready and willing to perform his part of contract and defendant has committed a breach of contract.
12. It is the case of the defendant that in the month of Jan 2013 he was in urgent need of money to discharge the loan borrowed from Rajesh Kumar and he has undertaken to discharge the loan in the 1st week of January 2013. In that regard, he had agreed to sell the suit property to the plaintiff for a lesser price of Rs.42,00,000/-, though it was fetches little 14 O.S.No.4172/2013 higher price and it was well informed to the plaintiff that he has to pay Rs.30,00,000/- as on the date of sale agreement itself. Plaintiff has agreed for the same and in that regard, defendant had executed a sale agreement in favour of plaintiff on 9/1/2013 and on the same day, plaintiff has given 3 cheques. One cheque in favour of Rajesh Kumar for Rs.30,00,000/- bearing cheque No.193045 towards mortgage money and another two cheques of Rs.2,00,000/- and Rs.3,00,000/- in favour of the defendant bearing cheque No.193046 & 193047, towards part payment of sale consideration amount.
13. It is the definite case of the defendant that time was the essence of the contract and plaintiff has to pay Rs.30,00,000/- to Rajesh Kumar on 9/1/2013 itself. Subject to that condition only he had agreed to sell the suit property to the plaintiff for a sum of Rs.42,00,000/-. It is alleged that Rajesh Kumar has presented the cheque for encashment on 11/1/2013 and the same was brought to the notice of the defendant on the same day. Immediately, defendant has 15 O.S.No.4172/2013 contacted the plaintiff and informed about the dishonour of the cheque. On 11/1/2013, soon after dishonour of the cheque issued by the plaintiff, Rajesh Kumar has insisted him to pay the cheque amount.
14. It is contended that to retain his reputation in the society, he had arranged Rs.30,00,000/- from his friends and paid the same to Rajesh Kumar on the next day i.e. 12/1/2013 and then informed the same to the plaintiff and he had requested the plaintiff to cancel the sale agreement. It is further alleged that plaintiff has agreed to cancel the sale agreement and postponed the matter on one pretext or the other. On several occasions, defendant has requested the plaintiff to receive his money and to cancel the sale agreement. On all those occasions, plaintiff has postponed the same. In the meanwhile, defendant has came to know that Rajesh Kumar has re-presented the cheque and encashed the same. Soon after knowing about the same, defendant has informed the plaintiff to receive back his money and to cancel the sale 16 O.S.No.4172/2013 agreement and then started constructing house in his own site.
15. It is the case of the defendant that plaintiff has not made necessary arrangement to honour the cheque issued in favour of Rajesh Kumar. Thereby, plaintiff had committed breach of contract and contended that plaintiff is not entitle for the relief of specific performance of the sale agreement dated 9/1/2013. However, it is pleaded that defendant has agreed to return the advance amount with bank interest and he had informed the same to the plaintiff in his reply.
16. On scrutiny of pleadings, it is ascertained that plaintiff has contended that defendant had agreed to furnish all the relevant documents, which plaintiff's counsel requires within 2 months from the date of sale agreement and at the same time, plaintiff has agreed to pay the balance consideration amount. It is alleged that defendant has failed to furnish the document which he was agreed to furnish to the plaintiff as per the terms of sale agreement, within the stipulated period of two months. Thereby, defendant has 17 O.S.No.4172/2013 committed breach of contract, though plaintiff was always ready and willing to perform his part of contract. It is relevant to note that defendant has all along contended that time is the essence of the contract, as per the terms of sale agreement plaintiff has to pay Rs.30,00,000/- to Rajesh Kumar on 9/1/2013 itself. As per the terms of sale agreement, the plaintiff has not paid Rs.30,00,000/- to Rajesh Kumar on 9/1/2013 and it amounts to breach of contract. It is contended that in view of the breach of contract, plaintiff is not entitle for the relief of specific performance.
17. Keeping the rival contentions of both side parties in mind, this court carefully scrutinized the recitals made in the sale agreement dated 9/3/2013. Relevant portion of the sale agreement reads as under:
"As per the terms of sale agreement¸ "the purchaser shall pay the balance consideration to the vendor at the time of registration of absolute deed of sale and the sale shall be completed within two months from the date of this agreement subject to obtaining and furnishing the title document as required by the counsel of the purchaser, 18 O.S.No.4172/2013 to satisfy the marketable title of the vendor and the vendor shall make out and convey a good, marketable and subsisting title in regard to the schedule property to the purchaser."
"The vendor has this day delivered all the original Title Deeds taking return from Sri. Rajesh Kumar S/o Achalchand Ji as the entire mortgage amount has been paid by the purchaser as per the instructions of the vendor relating to the schedule property to the purchaser and agrees to hand over other original documents or incidental documents as per the requirements of the counsel of the purchaser at the time of the registration of the absolute sale deed of the schedule property."
"The vendor shall deliver vacant possession of the suit property to the purchaser on the date of registration of the absolute sale deed or as mutually agreed by the parties to this agreement."
Consequences of breach:
"In the event of either party to this agreement committing breach¸the aggrieved party shall be entitled to enforce specific performance of this contract and also recover all costs, expenses and losses incurred by the aggrieved party, as a consequences of such breach from committing breach."19 O.S.No.4172/2013
18. On careful scrutiny of the recitals, terms and conditions and consequences of breach of contract, as agreed by parties under the sale agreement dated 9/3/2013, this court has observed that both parties have unanimously agreed to complete the sale transaction within two months from the date of sale agreement in an unambiguous terms subject to furnishing of title documents. It is most important to note that in the same sale agreement at para 5 plaintiff has acknowledged receipt of all original title deeds from the vendor on the same day i.e. on 9/1/2013 itself. The relevant portion of sale agreement is reads as under:
"The vendor has this day delivered all the original Title Deeds taking return from Sri. Rajesh Kumar S/o Achalchand Ji."
19. More so, during the course of cross examination, PW.1 has categorically admitted that vendor has delivered all original title deeds to him on the day of execution of sale agreement itself. The relevant admission made by PW.1 reads as under:
"It is true that at the time of execution of sale agreement in favour of the plaintiff, 20 O.S.No.4172/2013 defendant has delivered all original documents pertaining to suit property to the plaintiff."
20. In the plaint at the flag end of para 8 plaintiff has pleaded that defendant has to arrange and to furnish ancillary documents like tax paid receipts, encumbrance certificate, etc. to the plaintiff within two months, but defendant has not furnished those documents to the plaintiff's counsel, to ascertain the marketable title of the defendant. Keeping the same in mind, this court has scrutinized the relevant portion of the sale agreement and it is ascertained that, defendant has to furnish such ancillary/incidental documents to the plaintiff at the time of registration of the absolute sale deed of the schedule property. The relevant portion of the sale agreement dated 9/3/2013 reads as under:
".....agrees to hand over other original documents or incidental documents as per the requirements of the counsel of the purchaser at the time of the registration of the absolute sale deed of the schedule property."21 O.S.No.4172/2013
21. It is regret to note that plaintiff has conducted lengthy cross examination against DW.1 to elicit that defendant has not obtained and furnished incidental documents to the plaintiff within two months from the date of sale agreement. But in fact, stipulation mentioned in the sale agreement is not like that. In fact, defendant has agreed to furnish an incidental documents to the plaintiff at the time of registration of the absolute sale deed in favour of plaintiff in respect of suit property and not earlier. It can be seen in the recitals of the sale agreement dated 9/3/2013, referred supra.
22. On overall scrutiny of recitals of sale agreement dated 9/1/2013 and admission made by PW.1, this court has observed that defendant has delivered all original title documents to the plaintiff at the time of execution of sale agreement itself and he has agreed to furnish incidental documents to the plaintiff only at the time of registration of the documents. Based upon recitals made in the sale agreement and admission made by PW.1 referred supra, this court has come to a conclusion that defendant has delivered the original 22 O.S.No.4172/2013 title documents to the plaintiff on the day on which sale agreement has been executed and he was bound to furnish incidental charges only at the time of registration of the absolute sale deed and not earlier. Non furnishing of incidental documents to the plaintiff within two months from the date of sale agreement will not amounts to breach of contract on the part of defendant, since stipulation was otherwise.
23. As far as essence of time is concerned, in the sale agreement at para 3.1 it has been specifically mentioned that the vendor shall make out the sale shall be completed within two months from the date of this agreement and attached a stipulation has to consequences of breach of contract at para 9 of the sale agreement. On club reading of para 3.1 & para 9 of the sale agreement¸ it is explicitly clear that both parties have unanimously agreed to complete the sale transaction within two months. Of course, there was a condition to furnish original title deeds to the purchaser in the sale agreement. It is interesting to note that in the same sale 23 O.S.No.4172/2013 agreement, purchaser has acknowledged the delivery of original title documents to him. In view of delivery of original title deeds to the plaintiff on the day of execution of sale agreement¸ sale transaction shall be completed within two months from the date of sale agreement. As per the recitals made in the sale agreement, it is the purchaser, who has to arrange balance consideration and to approach the vendor to come forward to execute the sale deed. In the instant case, absolutely there is no believable or acceptable evidence on record, to believe that plaintiff has made arrangements to pay balance consideration of RS.7,00,000/- to the defendant and even no notice has been issued to the defendant, within the stipulated period of two months, calling upon the defendant to receive the balance consideration amount and to execute the sale deed. It is needless to say that plaintiff is the interested party in the suit property. Such being the case, plaintiff has to take initiation to insist the defendant to receive the balance consideration and to execute the sale deed. Evidence on record discloses that plaintiff has not taken any steps to obtain sale deed from the defendant, within two months date 24 O.S.No.4172/2013 of sale agreement. It shows, latches on the part of plaintiff. Plaintiff has not produced passbook to show that he has arranged balance consideration amount of RS.7,00,000/- and he was always ready and willing to perform his part of contract. It is mandatory on the part of purchaser to arrange balance sale consideration at the earliest before the expiry of stipulated time and he has to bring the same to the notice of the vendor and he has to take all necessary steps to get the sale deed from the vendor. In the instant case, absolutely there is no oral or documentary evidence before the court to hold that plaintiff has taken all steps to obtain the sale deed from the defendant within the stipulated period of two months, as mentioned in the sale agreement dated 9/1/2013.
24. Apart from it, plaintiff has not paid sum of Rs.30,00,000/- to Sri. Rajesh Kumar on 9/1/2013, as mentioned in the sale agreement, to discharge the loan availed by the defendant from Rajesh Kumar. In the sale agreement, it was mentioned that plaintiff has paid Rs.30,00,000/- to Sri. Rajesh Kumar at the instance of defendant. But in fact, the 25 O.S.No.4172/2013 cheque issued by plaintiff to Rajesh Kumar for Rs.30,00,000/- bearing cheque No.193045 drawn on State Bank of India, Visveshwarapuram Branch, Bangalore, payable on 9/1/2013 has been dishonoured and the same has been categorically admitted by PW.1. The relevant admission made by PW.1 reads as under:
"It is true that plaintiff has issued a cheque for Rs.30,00,000/- in favour of Rajeshkumar, at the instance of defendant on 9/1/2013 and the same has been dis-honoured."
25. It is most important to note that plaintiff was fully aware that defendant was in badly need of money to discharge the loan borrowed from Rajesh Kumar and that loan has to be discharged on 9/1/2013 itself. Plaintiff has agreed and accepted to discharge the loan of Rajesh Kumar on the day of execution of sale agreement and the same has been mentioned in the sale agreement that sum of Rs.30,00,000/- has been paid to Rajesh Kumar, but in fact, the plaintiff has not paid Rs.30,00,000/- to Rajesh Kumar on 9/1/2013, as mentioned in the sale agreement. Even the cheque issued by the plaintiff 26 O.S.No.4172/2013 for Rs.30,00,000/- to the creditor of the defendant has not been honoured on 9/1/2013 and in fact the said cheque was dishonoured. It can be seen in the admission made by PW.1 referred supra. At the time of entering into agreement itself, defendant has brought to the notice of the plaintiff that he is in badly need of money to discharge the loan of Rajesh Kumar and he has insisted the plaintiff to pay Rs.30,00,000/- to Sri. Rajesh Kumar on 9/1/2013 itself and the same has been mentioned in the sale agreement and the same has been categorically admitted by PW.1 in the course of cross examination. The relevant admission made by PW.1 reads as under:
"It is true that on 9/1/2013, defendant was in bad need of money to clear the debt payable to Sri. Rajesh Kumar, as such, he has agreed to sell the suit property for lower price."
26. In short, plaintiff was fully aware that defendant was in badly need of money to discharge his loan, plaintiff has not taken necessary care, to enable Rajesh Kumar to encash the cheque on 9/1/2013 or on the subsequent day. Due to negligence on the part of plaintiff, the cheque issued by him to 27 O.S.No.4172/2013 Rajesh Kumar has been dishonoured, it amounts to breach of contract. Further, plaintiff has not issued any legal notice to the defendant within two months from the date of sale agreement, calling upon the defendant to receive the balance sale consideration of Rs.7,00,000/- and to execute the sale deed. It is a serious lapse on the part of plaintiff, for not taking necessary initiation to insist the defendant to execute the sale deed within stipulated period of two months. There is an apparent and glittering lapse on the part of plaintiff for not calling upon the defendant to execute the sale deed within stipulated period of two months. It is an admitted that plaintiff had issued legal notice to the defendant in the month of April, 2013 instead of issuing legal notice in the last week of February or in the first week of March 2013. The averments made in the reply given by defendant in the month of May 2013, makes it abundantly clear that defendant has informed the plaintiff that the time limit to execute the sale deed has already been elapsed, as such, he is not bound to execute the sale deed and he has agreed to return the money and he has also enclosed xerox copy of the bankers' DD for 28 O.S.No.4172/2013 Rs.35,00,000/- and a request has been made to the plaintiff to receive the sale advance of Rs.35,00,000/- from him in the form of D.D and to return the original documents. It is relevant to note that defendant has also agreed to pay bank interest on the sale advance amount. Inspite of receipt of reply from defendant, plaintiff has not chosen to act upon the request of the defendant for the reasons best known to him.
27. On over all scrutiny of pleadings, oral and documentary evidence placed on record, this court has observed that defendant has started constructing a house in the suit property only after the lapse of two months from the date of execution of sale agreement and not earlier. Once defendant has came to know that the cheque issued by plaintiff was dishonoured through his friend Rajesh Kumar¸ he had made some other arrangements to clear the loan of Rajesh Kumar. Subsequently, defendant has came to know that Rajesh Kumar has re-presented the cheque and encashed the same later. Once he came to know about the encashment of plaintiff's cheque by Sri. Rajesh Kumar, he took back that 29 O.S.No.4172/2013 money and informed to the plaintiff that he will return the entire sale advance of Rs.,35,00,000/- to plaintiff with bank interest.
28. It is relevant to note that after 9/1/2013 some personal communications were took place between plaintiff and defendant through phone. As per the say of defendant, plaintiff has initially agreed to cancel the sale agreement and agreed to take back the money. When defendant tried to meet plaintiff personally to pay back the advance amount and to take back the original documents, plaintiff has informed the defendant that he was not in station and he was held up in Rajastan. In that connection, some communication was took place between plaintiff and defendant. The communication took place between plaintiff and defendant is crucial. Plaintiff and defendant are alone aware of those communications. The communications took place between plaintiff and defendant soon after the dishonour of cheque, throws glittering light on the dispute. Plaintiff is fully aware that if he once enters witness box truth will come to the light. To prevent the same, 30 O.S.No.4172/2013 plaintiff has deliberately not entered the witness box, though he is having good health and doing business in Bangalore and gave GPA to his uncle to give evidence on his behalf. PW.1 being the GPA holder of the plaintiff, has expressed his innocence and ignorance to the relevant questions, touching the point in issue. During the course of cross examination, PW.1 has categorically admitted that plaintiff is residing in Bangalore and he is available in Bangalore and there is no difficulty for him to give evidence in this case. The relevant admission made by PW.1 reads as under:
"It is true that plaintiff is still residing in Bangalore and he has no difficulty to give evidence in this case....It is true that I was neither party nor consenting witness to the agreement dated 9/1/2013 (Ex.P.2)."
29. Admissions made by PW.1 referred supra, makes it abundantly clear that plaintiff has deliberately not entered the witness box to withhold the truth and examined his GPA holder. More so, no notice has been issued to the defendant within two months from the date of sale agreement, calling 31 O.S.No.4172/2013 upon him to receive the balance consideration amount and to execute the sale deed in terms of sale agreement dated 9/1/2013. The relevant admissions made by PW.1 is reads as under:
"No notice has been issued to the defendant within two months from the date of Ex.P.2, informing the defendant that we have arranged balance sale consideration amount and ready to obtain the registered sale deed from the defendant."
30. On over all scrutiny of averments made in the plaint, recitals made in the sale agreement dated 9/1/2013, admissions made by PW.1 referred supra, this court has come to a conclusion that time is the essence of the contract and plaintiff was bound to make payment of Rs.30,00,000/- to the defendant's creditor on 9/1/2013 itself or atleast on the next day. It is regret to note that the cheque issued by plaintiff to the creditor of the defendant for Rs.30,00,000/- was returned dis-honoured and it can be seen in the admission made by PW.1, which reads as under:
32 O.S.No.4172/2013
"It is true that plaintiff has issued a cheque for Rs.30,00,000/- in favour of Rajeshkumar, at the instance of defendant on 9/1/2013 and the same has been dis-honoured."
31. Apart from it, plaintiff has not taken necessary steps to arrange to make payment of balance consideration of Rs.7,00,000/- to the defendant and not informed his ready and willingness to perform his part of contract to the defendant well within the stipulated period of two months.
32. View from any angle¸ plaintiff has failed to prove that he is always ready and willing to perform his part of contract. On the other hand, soon after the expiry of stipulated period of two months, defendant has brought to the notice of the plaintiff that stipulated period has been expired and he is not ready to execute the sale deed and requested the plaintiff to receive back the sale advance amount and to return the original documents. Of course, after expiry of the stipulated period of two months, defendant has started constructing an house in the suit property and he has completed the construction of four storied building in the suit property. 33 O.S.No.4172/2013 Based upon admissions made by PW.1 referred supra and by virtue of the recitals made in the sale agreement dated 9/1/2013, this court has come to a conclusion that plaintiff has proved issue No.1 in the affirmative and issue No.3 is answered in negative.
33. ISSUE NO.2 : On scrutiny of issues, it is observed that issue No.2 will not survive for consideration, since there is no pleading regarding delivery of possession to the plaintiff and the said issue has been framed by oversight. As such, issue No.2 is deleted.
34. ISSUE No.4 & 5: These two issues are taken together for common discussion to avoid repetition and overlapping, since these two issues are intrinsically interrelated to each other.
35. In the course of arguments, learned counsel representing the plaintiff has stoutly argued that plaintiff has satisfactorily proved that defendant has agreed to sell the suit 34 O.S.No.4172/2013 property to the plaintiff for a sum of Rs.42,00,000/- and he had executed a sale agreement on 9/1/2013 and on the same day he has paid sum of Rs.35,00,000/- to the defendant by way of three cheques. Out of 3 cheques, he has issued one cheque for Rs.30,00,000/- in favour of Rajesh Kumar at the instance of defendant and he had issued two cheques in favour of defendant for Rs.2,00,000/- & Rs.3,00,000/- and those 3 cheques were encashed by defendant and his vendor and at the time of execution of sale agreement, defendant has furnished original title deeds to the plaintiff and undertaken to furnish the incidental documents to the satisfaction of his counsel within two months from the date of sale agreement, but as per the promise, defendant has failed to furnish the incidental documents to the plaintiff and not came forward to execute the sale deed in favour of plaintiff, though the plaintiff was always ready and willing to perform his part of contract and ready to pay the balance sale consideration of Rs.7,00,000/- to the defendant. Inspite of receipt of legal notice from the plaintiff. Incidentally, it is argued that plaintiff is entitle for specific performance of the sale agreement dated 35 O.S.No.4172/2013 9/1/2013 on the ground that defendant has committed breach of contract and failed to execute the sale deed in favour of the plaintiff in terms of the sale agreement. In this regard learned counsel representing the plaintiff has relied upon the following citations and incidental observations reported in:
ILR 1995 KAR 492 CONTRACT ACT, 1872 (Central Act No.9 of 1872) - Section 55
- Time as the essence of contract : not mere fixation of a time period, but absolutely clear & unmistakable intention of parties - Time not be treated essence of contract where certain acts to be performed by one of the parties, non- completion thereof within time fixed due to involvement of third parties in completion thereof.
AIR 2002 SUPREME COURT 771:
(A) Specific Relief Act (47 of 1963), S.16(C) - Agreement to sell
- Suit for specific performance - Question whether or not time was essence of contract - Finding as to, by High Court -
Recorded without considering the law laid down by Constitution Bench of the Supreme Court in Chand Rani v. Kamal Rani, 1993 AIR SCW 1371 : AIR 1993 SC 1742 - Not proper.
AIR 2002 SUPREME COURT 2385:
"Specific Relief Act (47 of 1963), S.16(c) - Constitution of India, Art.136 - Suit for specific performance of contract - Grant of compensation in lieu of specific performance - No plea as to hardship if relief for specific performance is granted raised by defendant -vendor in written statement - No issue 36 O.S.No.4172/2013 framed that plaintiff-purchaser could be compensated in terms of money in lieu of decree for specific performance - Plea cannot be entertained for first time in appeal by way of SLP - Moreso, when concurrent finding that plaintiff was ready and willing to perform his part of contract had been recorded by lower courts - And there is no reason to interfere with said findings."
ILR 2000 KAR 3536:
"Specific Reliefs Act, 1963 (Central Act No.47 of 1963) - Section 16 - Contract Act, 1872 (Central Act No.9 of 1872) - Section 55 - Whether Time is the essence of contract in suit for specific performance has to be ascertained by looking to other provisions of the contract. If those terms indicate that the completion of the transaction within the time specified was intended to be a "fundamental Requirement", then only it has to be held that the Time is the essence of Contract."
AIR 1990 SUPREME COURT 867:
(B) Transfer of Property Act (4 of 1882), S.44 - Suit under -
Appellant/ plaintiff and his brother holding disputed dwelling house, belonged to an undivided family - property not divided by metes and bounds - Appellant's brother dying intestate - Transfer of brother's share by his widow and sons - Wound come within mischief of second paragraph of S.44 - Vendee taking possession of house - Irreparable injury likely to be caused to plaintiff - Balance of convenience was also in his favour - Interim mandatory injunction against vendors and vendees regarding possession can be issued." AIR 1973 SUPREME COURT 2457:
"Specific Relief Act (47 of 1963) S.20, S.23, S.10 Expln.- Presumption under S.10 - Provision for damages or penalty for breach is not sufficient to rebut the presumption."
AIR 2008 SUPREME COURT 2050:
37 O.S.No.4172/2013
AIR 2008 SUPREME COURT 2050:
Specific Relief Act (47 of 1963), S.16(c) - Specific performance
- Contract for sale - Readiness and willingness - Agreement of sale stipulating payment of interest on balance sale consideration till it is paid - averment made in plaint that plaintiff is and was always ready to pay balance consideration and to comply with terms of sale agreement - Refusing decree on ground that willingness to pay interest is not averred - Improper - It is contrary to facts and material on record.
INCIDENTAL OBSERVATION:
There is a specific statement that the plaintiff was willing to comply with the terms of the sale Agreement which were applicable and was so ready even before. One of the terms in the Agreement related to payment of interest. Therefore the conclusion of the High Court that there is no specific plea regarding readiness to pay interest is contrary to the factual scenario, in view of the categorical averment made in the plaint.
The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entities him to get the relief on perusal of the plaint he should not be denied the relief.
AIR 2012 SUPREME COURT 2035 (A) Specific Relief Act (47 of 1963), S.16(c) - Specific performance of Agreement to sell - Readiness and willingness
- Respondent-purchaser pleading that consideration offered 38 O.S.No.4172/2013 was refused by appellant seller on ground that Agreement was fabricated - Appellant however adducing no evidence to substantiate its assertion - Concurrent finding about readiness and willingness recorded in favour of respondent -
Mere absence of specific pleading about continued readiness and willingness to perform its part of Agreement and availability of funds necessary for payment - Cannot be ground to upset concurrent finding in second appeal - Supreme Court also refused to interfere considering fact that appellant had merely set up case of total denial and had not even filed appeal against finding recorded by trail Court on issue of readiness and willingness.
However, mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not constitute an unfair advantage to the plaintiff over the defendant or unforeseeable hardship on the defendant.'' AIR 2016 SUPREME COURT 4564 (A) Specific Relief Act (47 of 1963), S.20- Specific Performance- Agreement for sale of joint property- Executed by defendants 1 to 6-Sister and her husband, defendants 7 and 5, interested in property, not joined- Property already mortgaged with Co-operative bank- Under agreement vendors agreed to make good marketable title - And to exercise proper conveyance by joining necessary person so as to convey absolute title or to redeem any charge or encumbrance-plaintiff, purchaser always ready and willing to perform its obligation-Discharged mortgage with bank by paying amount three times the amount of agreed consideration with clear understanding that defendants 1 to 8 would thereafter execute sale deed- In facts and circumstances grant of decree to the extent of share of defendants 1 to 6 in favour of plaintiff- Held. Not liable to be interfered with.
39 O.S.No.4172/2013ILR 2001 KAR 2628:
"Civil Procedure Code, 1908 (Central Act No.V of 1908) order III rules 1 and 2 Evidence At, 1872 (Central Act No.1 of 1872)
- Section 118 - Trial Court did not permit the power of attorney of the plaintiff to be examined for and on behalf of the plaintiff as substitute for plaintiff. In revision High Court HELD - There is no express bar made in the Civil Procedure Code debarring the power of Attorney to be examined. It s also not necessary in law, that always a party to the proceedings should examine himself. It is open for the party to give evidence through the power of attorney and such evidence would be valid substituted evidence of the plaintiff."
36. Based upon law laid down by the Hon'ble Supreme Court of India in the citations referred supra, learned counsel representing plaintiff has prayed the court to decree the suit and direct the defendant to execute the registered sale deed in favour of plaintiff in respect of suit property by receiving balance sale consideration of Rs.7,00,000/-.
37. Learned counsel representing the defendant has argued that time is the essence of the contract and the same has been specifically mentioned in the sale agreement and it is mandatory on the part of plaintiff to arrange the balance 40 O.S.No.4172/2013 consideration within two months from the date of sale agreement and he has to inform the same to the defendant. In the instant case, plaintiff has not examined any witness or produced any document to show that, he had arranged balance sale consideration and he was always ready and willing to perform his part of contract. On the other hand, plaintiff kept quite for four months and then issued legal notice in the month of April 2016 i.e. after lapse of two from the date fixed for completion of the sale transaction. Noticing the lapse on the part of plaintiff, defendant has expressed his unwillingness to execute the sale deed and informed the same to the plaintiff in his reply to the legal notice and requested the plaintiff to receive the sale advance amount and to return the original documents and he has also enclosed the xerox copy of the D.D for Rs.35,00,000/- and it is further informed that defendant is ready to pay the bank rate of interest on the sale advance amount. Inspite of it, plaintiff has not came forward to receive the D.D for Rs.35,00,000/- from the defendant and adopted dragging tactics to cause harassment to the defendant. It is further argued that defendant has not 41 O.S.No.4172/2013 committed breach of contract and in fact, plaintiff has committed breach of contract and the cheque issued by the plaintiff for Rs.30,00,000/- in favour of Rajesh Kumar was dishonoured. Once the cheque issued by plaintiff was dishonoured, it amounts to breach of contract and even not made arrangements to pay the balance consideration amount to the defendant within two months, as per the terms of sale agreement and no notice has been issued to the defendant within two months from the date of sale agreement¸ informing the defendant about his ready and willingness to perform his part of contract and he has made arrangements to pay the balance consideration of Rs.7,00,000/- to the defendant. On the other hand, defendant has delivered all original title documents to the plaintiff on the day of execution of sale agreement itself and the same has been acknowledged by the plaintiff in the sale agreement and the same has been admitted by PW.1 in his cross examination. Thereby, defendant has discharged his part of obligation, arising out of agreement and he has to produce incidental documents only at the time of execution of absolute sale deed in favour of the 42 O.S.No.4172/2013 plaintiff in respect of suit property and at no point of time defendant has agreed to deliver incidental documents within two months from the date of sale agreement. Such being the case, plaintiff has wrongly interpreted the language employed in the sale agreement and contended that defendant was bound to furnish the incidental documents to the plaintiff within two months from the date of sale agreement. But in fact, terms of sale agreement or otherwise and those terms were not properly understood by the plaintiff. As per the terms of sale agreement defendant was bound to execute the sale deed in favour of plaintiff in respect of suit property within two months from the date of sale agreement and not later. In the instant case, plaintiff has not came forward to get the sale deed from the defendant in respect of suit property within two months from the date of sale agreement dated 9/1/2013. Wherefore, plaintiff is not entitle for the relief of specific performance of the sale agreement dated 9/1/2013. However, plaintiff is entitle for the alternative relief, as prayed in the plaint. Incidentally, it is further argued that after lapse of period prescribed in the sale 43 O.S.No.4172/2013 agreement, defendant has constructed four storied building. In the above circumstances, if the court grants specific relief, it will cause irreparable loss, damage and hardship to the defendant. On the other hand, if alternative relief is granted, no hardship will be caused to the plaintiff and it will safeguard the interest of defendant and it will be an equitable relief to both parties. In this regard, the learned counsel representing the defendant has relied upon the following citations and incidental observations reported in:
AIR 2002 SUPREME COURT 1279 :
(B) Specific Relief Act (47 of 1963). S. 20 - Decree for specific performance - Grant of - is a discretionary one - Comparative hardship to be looked into. 1999(5) SCC 77, 2001(5) SCC
10.Rel. on.
(C) Specific Relief Act (47 of 1963), S.20 - Suit for specific performance of agreement for sale - Decree for - Grant of - Plaintiff subsequent purchaser - Defendants found to be bonafide purchasers for valuable consideration without notice of agreement for sale in favour of plaintiff - Were in possession of suit land by investing considerable sum for improvement - Decree for specific relief of contract would involve hardship on defendants as compared to plaintiff - Specific performance of agreement - Cannot be enforced in favour of plaintiff - However, plaintiff could be compensated by decree of compensation - Defendants directed to pay Rs.3000/- to plaintiff with interest @ 12% from date of filing of suit till date of payment.
44 O.S.No.4172/2013INCIDENTAL OBSERVATION:
"20. Now the question is to what relief is plaintiff is entitled? It is entitled position of law that grant of a decree for specific performance is a discretionary one. This Court in K. Narendra V. Raviera Apartments (P) Ltd. (1999(5) SCC 77) held that section 20 of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so, the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles. It was further held that if performance of a contract involve some hardship on the defendant which he did not foresee while non performance involving no such hardship on the plaintiff, is one of the circumstances in which the Court may properly exercise discretion not to decree specific performance and the doctrine of comparative hardship has been statutorily recognized in India."
AIR 1993 SUPREME COURT 1318:
"Specific Relief Act (47 of 1963), Ss. 16, 20 - Agreement to sell
- Suit for specific performance - Execution of mortgage deed - Plaintiff paying mortgage money on assignment of mortgage debt created by defendant - Defendant in turn agreeing to sell certain property on its failure to pay off amount advanced - Specific performance of such agreement cannot be ordered as it was not agreement of sale purely - However, Supreme Court decreed suit for repayment of monies paid against mortgage with secured interest thereon - Compensation in lieu of specific performance, also awarded to plaintiff. Compensation - Granted in lieu of specific performance of agreement to sell.
Sale - Agreement for - Specific performance - Compensation granted in lieu of.
AIR 1987 SUPREME COURT 2328:45 O.S.No.4172/2013
"Specific Relief Act (47 of 1963), S.20 - Agreement to sell - Specific performance - Grant of - Duty of Court - Court should see that litigation is not used as instrument of oppression to have unfair advantage to plaintiff. Appeal Suit No.525 of 1971, D/-1-4-1975 (ker.) Reversed."
"S.20 preserves judicial discretion Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff."
AIR 1987 SUPREME COURT 1641:
"Specific Relief Act (47 of 1963), Ss.20, 10 - Contract for sale of land - Breach by vendor - Suit for specific performance - Godowns and other costly structures already bu8ilt on disputed land by vendor- Grant of decree of specific performance world result in special hardship to vendor - Vendor, therefore, directed to pay present value of the disputed land instead of executing sale.
1998(6) KAR. L.J 547:
SPECIFIC RELIEF ACT, 1963, Section 20 - Agreement to sell - Specific performance - Hard and unconscionable bargain - Comparative hardship - Grant of decree rests in discretion of Court and cannot be claimed as a matter of right - Where vendor, being hard pressed for money at relevant time for arranging his daughter's marriage, was compelled to agree to sell his dwelling house for low price, Court can rightly refuse to decree specific performance, as that would render vendor homeless - Decree for refund of earnest money to vendee, with interest at 10% to one of specific performance would serve ends of justice.46 O.S.No.4172/2013
HELD: The Trial Court had only gone into the aspect of comparative hardship because the defendant had pleaded it and because it was a relevant consideration. It is well-settled law that in cases where specific performance is asked for, that if it is possible to monetarily compensate the party, then a Court may refuse passing of the decree which would cause grater hardship. It is in exercise of this very principle that the Trial Court refused the decree.... The evidence has conclusively established that the value of the property was at least three times that which was recorded and this itself would indicate that something was seriously wrong with the transaction."
AIR 1998 CALCUTTA 252 :
"(B) Specific Relief Act (47 of 1963), S.20 - Specific performance of contract - Refusal to grant relief - Relevant factors - Company under management of respondent's husband and father-in-law heavily indebted to appellant -
Respondent / wife entered into agreement to sell premises for total consideration of Rs.1 lakh - Failure to complete sale - Suit for specific performance filed by appellant - Transaction found to be in nature of distress sales for inadequate consideration - No mutual agreement between parties - Respondent, widow and only source of income was rent she realized from ground floor - Appellant firm in property business and only interested in acquiring landed property - Non performance of contract not causing much hardship to appellant - Enforcement of contract held, inequitable - Discretion to refuse, relief, reasonable and judicial - No interference."
INCIDENTAL OBSERVATION:
5. By a judgment delivered on 6th December 1990 the learned Judge decided issues 1,2,3 and 4 in the appellant's favour.
However, in exercise of his discretion under Section 20 of the Specific Relief Act, 1963, the learned Judge refused to grant specific performance of the agreement but passed a decree in 47 O.S.No.4172/2013 favour of the plaintiff for a sum of Rs.1 lakh with interest @ 12% from the date of the filing of the suit till repayment. The appellant was also granted the costs of the suit."
38. Perused pleadings, oral and documentary evidence of both side parties, admission made by PW.1 & DW.1, in the light of law laid down by the Hon'ble Supreme Court of India, in the citations referred supra, relied upon by both side parties and observations made therein and observed that, plaintiff has failed to prove that he had discharged his obligation, arising out of the sale agreement dated 9/1/2013 effectively and he has further failed to prove that he has taken due care to arrange funds, before issuing cheque for Rs.30,00,000/- in favour of defendant's creditor Sri.Rajesh Kumar. Due to negligence on the part of plaintiff¸ the cheque issued by him, in favour of Sri. Rajesh Kumar was dishonoured. It is important to note that plaintiff was fully aware of the fact that defendant was in badly in need of money to discharge his loan, payable to Rajesh Kumar and he had insisted the plaintiff to pay sum of Rs.30,00,000/- to Sri. Rajesh Kumar on 9/1/2013 itself. It is regret to note that the 48 O.S.No.4172/2013 cheque issued by plaintiff to Sri. Rajesh Kumar for Rs.30,00,000/- on 9/1/2013 was dishonoured on 11/1/2013 and the same was brought to the notice of the plaintiff. In the course of cross examination¸ PW.1 has categorically admitted the same. It is necessary to hold that dishonour of cheque issued by the plaintiff, amounts to breach of contract by him. Apart from it, plaintiff has not taken effective steps to arrange the balance payment within two months from the date of sale agreement and not informed the same to the defendant and no notice has been issued to the defendant, calling upon him to come forward to execute the sale deed within two months from the date of sale agreement by receiving balance sale consideration amount. Such lapses on the part of plaintiff will not enable him to claim for specific performance of the sale agreement dated 9/1/2013. However, plaintiff is entitle for the alternative relief of refund of sale advance of Rs.35,00,000/- with bank interest from the date of encashment of cheques till the date of payment. At this stage, it is relevant to note that rightly or wrongly defendant has construed four storied building on his site and the said 49 O.S.No.4172/2013 building is lying vacant for few years, in view of the interim order. In view of that order, defendant has already suffered loss. In such circumstances, if defendant is asked to demolish the newly constructed building, it will be a great loss to the defendant and his life will be ruined. To prevent such untoward incidents and to protect the interest of both parties, this court is of the opinion that the loss caused to the plaintiff can be compensated by awarding general and special damages. There is a glittering mistake on the part of defendant that, his creditor Sri. Rajesh Kumar has re- presented the dishonoured cheque and encashed the same on 16/1/2013, without the notice and knowledge of defendant. Once, defendant came to know that his creditor has encashed the cheque issued by the plaintiff, it is his bounded duty to return that money to the plaintiff immediately. In the instant case, defendant has not returned that money to the plaintiff immediately and he has utilized that money for his personal use. Therefore, defendant is liable to pay special damages of Rs.5,00,000/- to the plaintiff.
50 O.S.No.4172/2013
39. It is relevant to note that soon after giving reply to the legal notice, defendant has filed a caveat petition, anticipating that plaintiff will file a suit against him for specific performance of sale agreement dated 9/1/2013 and to prevent the plaintiff from taking interim orders. At the time of filing caveat petition or at the time of filing written statement or soon after filing the written statement, defendant could have been deposited the sale advance amount in the court to show honesty. But in the instant case, defendant has not chosen to do so and he has deliberately utilized the sale advance amount for his personal use. Wherefore, defendant is liable to pay general damages of Rs.5,00,000/- to the plaintiff¸ to compensate the loss incurred by the plaintiff. Accordingly, this court proceed to answer issue No.4 in partly affirmative and issue No.5 in affirmative.
40. ISSUE NO.6 : By virtue of precise discussion held while answering issues No.1 to 5 and for the reasons there under, this court proceeds to pass the following: 51 O.S.No.4172/2013
ORDER Suit is decreed with cost.
The alternative prayer has been allowed. Defendant is hereby directed to return the sale consideration advance of Rs.35,00,000/- to the plaintiff with interest @ 12% per annum from the date of encashment of cheques till repayment.
In addition defendant has to pay general damages of Rs.5,00,000/- and special damages of Rs.5,00,000/-. In all he has to pay damages of Rs.10,00,000/- to the plaintiff within 3 months from the date of judgment. Draw decree accordingly.
(Dictated to Judgment Writer; transcript thereof corrected, initialed and pronounced in open court on this the 31st day of March, 2017) (A.GURUMURTHY) XV Addl.City Civil & Sessions Judge, Bangalore.
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1 : Dinesh Kumar WITNESSES EXAMINED FOR THE DEFENDANT:
DW.1 : Atul C. Doshi.52 O.S.No.4172/2013
DOCUMENTS MARKED ON BEHALF OF PLAINTIFF:
Ex.P.1 : GPA Ex.P.2 : Registered Agreement of Sale executed by Atul C. Doshi in favour of plaintiff.
Ex.P.3 : Legal Notice dt.5/4/2013.
Ex.P.4 & P.5 : Two returned RPAD covers. Ex.P.6 : Copy of legal notice dt. 16/4/2013. Ex.P.7 : Reply to legal notice.
Ex.P.8 : four photographs pertaining to suit property. Ex.P.9 : Bank Statement Ex.P.10: Counter Foil challan dt. 4/4/2013. Ex.P.11: Income Tax Returns for the year 2013-14.
DOCUMENTS MARKED ON BEHALF OF THE DEFENDANT:
Ex.D.1 to D.5 : Five photographs pertaining to apartment constructed in the suit property.
Ex.D.6 : CD
(A.GURUMURTHY)
XV Addl.City Civil & Sessions Judge,
Bangalore.
53 O.S.No.4172/2013
Judgment pronounced in open court.
Vide separate order.
ORDER
Suit is decreed with cost.
The alternative prayer has been allowed.
Defendant is hereby directed to return
the sale consideration advance of
Rs.35,00,000/- to the plaintiff with interest @ 12% per annum from the date of encashment of cheques till repayment.
In addition defendant has to pay general damages of Rs.5,00,000/- and special damages of Rs.5,00,000/-. In all he has to pay damages of Rs.10,00,000/- to the plaintiff within 3 months from the date of judgment.
Draw decree accordingly.
(A.GURUMURTHY) XV Addl.City Civil & Sessions Judge, Bangalore.54 O.S.No.4172/2013