Bangalore District Court
M/S.Techno Art Constructions vs Sri.D.Ramesh on 1 October, 2018
IN THE COURT OF XXXV ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-36)
DATED ON THIS THE 1st DAY OF OCTOBER 2018
Present: Sri.Manjunath.G.A., B.A.L.,L.L.B.,
XXXV Addl.CC & SS Judge, Bengaluru.
O.S.No.758/2015
Plaintiff : M/S.Techno Art Constructions
Pvt.Ltd.,
(A company incorporated under the
Companies Act, 1956)
Registered office at:
# 19 & 19/1, III Floor,
South End Road,
Basavanagudi, Bengaluru-560 004.
Rep.by its Managing Director
Sri.M.S.Nagaraja Rao,
Aged 70 years.
(By Sri.S.V.S., Advocate)
-Vs-
Defendants : 1. Sri.D.Ramesh,
Aged about 55 years,
S/o.Late B.K.Devaraj,
Residing at No.11/12,
5th Main, 5th Block,
Jayanagar, Bengalru-560 011.
2. Mr.Nawaz,
Aged about 37 years,
S/o.Sri.Gouse Pasha,
Residing at No.13,
Kaggalipura Village,
Kanakapura Main Road,
Bengaluru South Taluk.
2 O.S.No.758/2015
3. Mr.Shoukath,
Aged about 35 years,
S/o.Sri.Abdul Sattar,
Residing at No.26047,
Nagamma Layout,
7th Cross, 1st Main,
R.T.Nagar Post,
Bengaluru-560 032.
4. The Sub Registrar,
Basavanagudi (Banashankari)
Bengaluru.
(By Sri.M.L.G, Advocate for
defendant No.1
By Sri.ADGP., Advocate for
defendant Nos.2 & 3)
Date of institution of the suit : 22-01-2015
Nature of the suit Declaration & Injunction
Date of commencement of 17-08-2017
recording of the evidence :
Date on which the judgment : 01-10-2018
was pronounced
Total duration : Years/s Month/s Day/s
03 08 09
(MANJUNATH.G.A.)
35th Addl. City Civil & Sessions
Judge, Bengaluru.
JUDGMENT
The Plaintiff - Company has filed this suit against the defendants, seeking cancellation of a Sale Agreement dated 3 O.S.No.758/2015 25-11-2014, for a permanent injunction against defendant Nos.1 to 3 and for a mandatory injunction against defendant No.4.
2. In brief, the case of Plaintiff - Company is as follows:-
The Plaintiff - Company has purchased the suit schedule property by way of a registered Sale Deed, dated 19-09-2009 from defendant No.1 and Maya Ventures Private Limited. Based on the Sale Deed, Khata is effected in the name of the plaintiff. The plaintiff is paying tax to the suit property. The plaintiff is the owner and in possession of the suit property.
Defendant No.1 herein was the owner of converted land bearing Sy.No.70 of Kanakapura Main Road, Jaraganahalli Village, J.P.Nagar 6th Phase, Bengaluru measuring 81,897 Sq.ft. Defendant No.1 entered into Joint Development Agreement with Maya Ventures Private Ltd., for development of the said land into multi-dwelling residential apartment. The Joint Development Agreement project had been developed in full and occupancy certificate was issued by concerned authority. The agreed owners' developed area, delivered 4 O.S.No.758/2015 23276.31 Sq.ft in favour of the first defendant. The first defendant in respect of the said property entered into a registered Partition Deed with his wife and two daughters on 3-8-2009. A Rectification Partition Deed also came to be executed on 20-10-2009 between them. Thus, defendant No.1 had dealt with all the 13 sites fell to his share. In spite of the same, he is indulging in executing Sale Deeds, Sale Agreements, GPAs etc., in favour of 3rd parties. The plaintiff is in the habit of selling one property to two or three persons. In that regard, a criminal case is also pending before the Chief Metropolitan Magistrate, Bengaluru.
Defendant No.1 has no right over the suit schedule property. Because, he has already executed a sale Deed in favour of Plaintiff - Company. But, defendant No.1 colluding with defendant Nos. 2 and 3 executed a registered Sale Agreement on 25-11-2014 for a sum of Rs.40,00,000-00. The defendant No.1 is neither the owner nor in possession of the suit property. The alleged Sale Agreement, dated 25-11-2014 is a created one and not binding on the Plaintiff - Company.
Defendant No.4 without following Rules, Regulations and Circulars issued by the Government has registered the 5 O.S.No.758/2015 Sale Agreement. On 26.11.2014, defendant Nos. 1 to 3 came near the suit schedule property and tried to interfere with the possession of the plaintiff. When the Plaintiff - Company complained about the illegal activities to the police, defendant Nos. 1 to 3 openly challenged saying that they will come with a regular Sale Deed and will take possession forcibly. Therefore, it is prayed to decree the suit.
3. Though defendant No.1 has appeared through his Advocate has not chosen to file written statement. Defendant Nos.2 and 3 are placed exparte.
4. The Learned ADJP appeared for defendant No.4 and filed written statement denying all the plaint averments.
It is contended that as per the Provisions of Registration Act, defendant No.4 has registered the Sale Agreement. The suit against him is not maintainable. Therefore, it is prayed to dismiss the suit.
5. Based on the said pleadings, the following issues have been framed:-
6 O.S.No.758/2015
Issues
1. Whether the plaintiff proves that it is absolute owner of the suit schedule property having right, title and interest as alleged in the plaint?
2. Whether the plaintiff proves that the Agreement dt.25-11-2014 (wrongly typed as 25-11-2015) is void and not binding on the plaintiff?
3. Whether the plaintiff proves that the defendants 1 to 3 interfered with its peaceful possession and enjoyment over the suit schedule property as alleged in the plaint?
4. Whether the plaintiff is entitled for Mandatory Injunction against defendant No.4?
5. Whether defendant No.4 proves that the suit filed against him is not maintainable under law?
6. What Order or Decree?
6. On behalf of the Plaintiff - Company Sri.M.N.Karthik is examined as P.W.1 and got marked Exs.P.1 to P.18. Defendant No.4 though filed written statement not contested the suit.
7. My answer to the above issues are as follows:-
Issue No.1 : In the affirmative
7 O.S.No.758/2015
Issue No.2 : In the affirmative
Issue No.3 : In the affirmative
Issue No.4 : In the affirmative
Issue No.5 : In the affirmative
Issue No.6 : As per final order for the
following:-
REASONS
8. Issue Nos.1 to 3:- Mr.M.N.Karthik, the Director of the Plaintiff - Company is examined as P.W.1. He has clearly deposed that defendant No.1 has executed a Sale Deed in favour of the Plaintiff - Company on 19-9-2009. The original Sale Deed is marked at Ex.P.1. It reveals that defendant No.1 who was the earlier owner has executed the Sale Deed in favour of the Company for a sale consideration. The recitals disclose that defendant No.1 has received the entire sale consideration and handed over possession of the suit property in favour of the Plaintiff - Company. P.W.1 has further deposed that based on Ex.P.1 - Sale Deed, khata is changed into the name of the Company and Company is paying taxes regularly. The certificate issued by BBMP is marked at Ex.P.2. Khata extract of BBMP is marked at 8 O.S.No.758/2015 Ex.P.3. The tax paid receipts are marked at Exs.P.4 & P.5. The Plaintiff - Company is also paying maintenance charges as per Exs.P.6 & P.7. P.W.1 has deposed that the Company is the owner and it is in possession of the suit schedule property. P.W.1 has further deposed that defendant No.1 has executed a registered Sale Agreement in favour of defendant Nos.2 and 3 for a sum of Rs.40,00,000-00. The said registered Sale Agreement is marked at Ex.P.14. The suit schedule property referred to in Ex.P.14 and the property referred in Ex.P.1 registered Sale Deed are one and the same. Defendant No.1 had executed the Sale Deed in favour of Plaintiff - Company on 19-09-2009 as per Ex.P.1. From that day onwards, the Plaintiff - Company is the owner. But, defendant No.1 though he is not the owner in possession of the suit property has executed Ex.P.14 in favour of defendant Nos.2 and 3. As on the date of Ex.P.14, i.e., on 25-11-2014, defendant No.1 was neither the owner nor in possession of the suit schedule property. Therefore, he had no right to execute registered Sale Agreement in favour of defendant Nos. 2 and 3.
9 O.S.No.758/2015
9. Subsequent to filing of the suit, defendant Nos. 2 and 3 have executed cancellation of Sale Agreement in favour of defendant No.1 as per Ex.P.15 on 16-9-2016. Ex.P.15 is also a registered document. It appears defendant No.1 has returned advance amount of Rs.20,00,000-00 to defendant Nos. 2 and 3. Accordingly, the entire sale transaction was cancelled. It appears defendant No.1 by realizing his mistake has entered into cancellation of Sale Agreement as per Ex.P.15. But, defendant No.1 had no moral courage to appear before the court and to plead these facts.
10. Maya Venture Private Ltd., has also issued a payment voucher in favour of defendant Nos. 2 and 3 after cancellation of the registered Sale Agreement as per Ex.P.16. In fact, defendant No.1 has written a letter to Mr.Karthik M.N., Director of Maya Ventures Private Limited informing about the cancellation of registered Sale Agreement as per Ex.P.17.
11. P.W.1 has deposed before the court on the strength of Ex.P.18, the Board Resolution. The oral and documentary evidence placed on record by the Plaintiff - Company is not 10 O.S.No.758/2015 challenged. Though, defendant No.1 has appeared through his Advocate has not chosen to file written statement and to contest the suit. As already said, defendant Nos.2 and 3 are placed exparte. Defendant No.4 has filed written statement but has not chosen to cross-examine P.W.1. Defendant No.4 has not adduced evidence to disprove the case pleaded by the plaintiff. By placing acceptable evidence, the Plaintiff - Company has proved that it is the owner of the suit schedule property. Further, the Plaintiff - Company has proved that the registered Sale Agreement executed by defendant No.1 in favour of defendant Nos.2 and 3 is a void document. Therefore, the Sale Agreement, dated 25-11-2014 is not binding on the Plaintiff - Company.
12. P.W.1 has clearly deposed about the interference caused by defendant Nos. 1 to 3. The very attempt of defendant No.1 executing registered Sale Agreement in favour of defendant Nos. 2 and 3 will itself amounts to interference. Hence, Issue Nos.1 to 3 are answered in the affirmative.
13. Issue Nos.4 & 5:- In the written statement, it is contended that suit against defendant No.4 is not 11 O.S.No.758/2015 maintainable. Section 86 of the Registration Act, 1908 reads like this:-
86. Registering officer not liable for thing bona fide done or refused in his official capacity.- No registering officer shall be liable to any suit, claim or demand by reason of anything in good faith done or refused in his official capacity."
14. It is true that as per Section 86 of the Registration Act, 1908, a suit shall not lie against defendant No.4. But, the plaintiff is not seeking any relief against defendant No.4 except a Mandatory Injunction to delete the entries. As per Ex.P.1, the Plaintiff - Company is the owner of suit schedule property. Defendant No.1 having no right over suit schedule property as on 25-11-2014 executed registered Sale Agreement as per Ex.P.14. Though, plaintiff is not a party to Ex.P.14 registered Sale Agreement, his property is involved in the said document. Plaintiff - Company is an aggrieved party. The defendants or some third parties may misuse the entries in the Sub-registrar office. Because, based on the registration of Sale Agreement, encumbrance will be entered in the encumbrance certificate. There are chances of misusing such entries. Therefore, the entries in respect of registered Sale 12 O.S.No.758/2015 Agreement are have to be deleted. In this regard, a direction in the form of Mandatory Injunction has to be issued against defendant No.4. For this reason, the court is of the opinion that suit against defendant No.4 is maintainable. Accordingly, both the issues are answered in the affirmative.
15. Issue No.6:- In view of my answering to issue Nos.1 to 5, I proceed to pass the following:-
ORDER Suit of the Plaintiff - Company is decreed with cost.
The registered Sale Agreement, dated 25.11.2014 executed by defendant No.1 in favour of defendant Nos.2 and 3 in respect of the suit property is hereby cancelled and the same is not binding on the plaintiff.
By way of Mandatory Injunction, defendant No.4 is directed to cancel the entries 13 O.S.No.758/2015 pertaining to the registered Sale Agreement, dated 25-11-2014.
By way of Permanent Injunction, defendant Nos. 1 to 3 are restrained from interfering with the possession of the plaintiff over the suit schedule property permanently.
By way of Permanent Injunction, defendant Nos.1 to 3 are restrained from creating any document in respect of the suit schedule property.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed and typed by her and then corrected and pronounced by me in the open court on this the 1st day of October 2018).
(MANJUNATH.G.A.) XXXV Addl.City Civil & Sessions Judge, Bengaluru.
ANNEXURE Witnesses examined on behalf of the plaintiff.
P.W.1 : Sri.M.N.Karthik 14 O.S.No.758/2015 Witnesses examined on behalf of the defendants.
- Nil -
Documents marked on behalf of the plaintiff.
Ex.P.1 : Certified Copy of Sale Deed,
Dated:19-09-2009
Ex.P.2 : Certificate issued by BBMP
Ex.P.3 : Khata extract of BBMP
Ex.P.4 : Acknowledgement for the year 2014-15
Ex.P.5 : The property tax receipt
Ex.P.6 : Receipt for payment of maintenance of
the suit property dated: 21-11-2014
Ex.P.7 : Bill, dated 14-10-2014.
Ex.P.8 : Certified copy of the Deed of Partition,'
Dated 3-8-2009.
Ex.P.9 : Rectification Deed, dated 20-10-2009
Ex.P.10 : The sharing letter issued by developers
To the D.1, dated 27-12-2008 (2 pages) Ex.P.11 : The sharing letter issued by developers To the D.1, dated 20-01-2009 (4 pages) Ex.P.12 : Certified copy of the Agreement submitted before Arbitration, dated 17.08.2016.
Ex.P.13 : Certified copy of the Registered Arbitral Award, dated 31-8-2016.
Ex.P.14 : Original Registered Sale Agreement, Dated 25-11-2014.
15 O.S.No.758/2015Ex.P.15 : Registered original cancellation of Sale Agreement, dated 16-9-2016.
Ex.P.16 : Payment voucher in the name of defendant No.1, dated 23-09-2016 Ex.P.16(a) : Signature on E.P.16 of defendant No.1 Ex.P.17 : Letter address to the defendant No.1, dated 26-09-2016.
Ex.P.17(a) : Signature of the defendant No.1 on Ex.P.17.
Ex.P.18 : Board Resolution Documents marked on behalf of the defendants.
-Nil-
(MANJUNATH.G.A.) XXXV Addl.City Civil & Sessions Judge, Bengaluru