Karnataka High Court
Smt Susheela Sharma vs Smt Yellanda Thomas on 11 March, 2014
Bench: K.L.Manjunath, Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF MARCH 2014
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE RAVI MALIMATH
REGULAR FIRST APPEAL NO.666 OF 2009(SP)
BETWEEN:
Smt.Susheela Sharma
W/o Rukmananada Sharma
Aged about 44 years
R/at G-11, Golden Arc apartment
Kasturba Road,
Behind Hotel Rama
Lavelle road,
Bangalore - 560 045. ...APPELLANT
(By Sri K.G.Sadashivaiah, Advocate & Sri N.G.Vijay
Kumar, Advocate)
2
AND:
Smt.Yellanda Thomas
W/o Mulakkal George Thomas
Aged about 52 years
R/at 13/1, Mulakkal,
J.R.Manor, Yennur Garden
Hennur Main Road,
Bangalore - 560 045. ...RESPONDENT
(By Sri Gangadhar Aithal, Advocate for C/R)
*****
This RFA is filed under Section 96 of CPC, against
the Judgment and decree dated 08.04.2009, passed in
O.S.No.244/2005 on the file of the XIII Addl. City Civil
Judge, Mayohall Unit, Bangalore, dismissing the suit for
direction to execute sale deed, permanent injunction
and delivery of vacant possession.
This RFA coming on for final hearing this day,
K.L.Manjunath J., delivered the following:-
JUDGMENT
The appellant is questioning the legality and correctness of the judgment and decree passed by the City Civil Judge, Bangalore in O.S. No.244/2005, dated 08.04.2009, wherein the court below has dismissed the 3 suit filed by the appellant for specific performance of the contract.
2. We have heard the learned counsel appearing for the parties.
3. The facts leading to this appeal are as hereunder:
The suit was filed by the plaintiff to direct the defendant to execute the sale deed in respect of the suit schedule property in terms of the agreement dated 14.12.2004, by receiving the balance sale consideration of Rs.1,00,000/- and to direct the defendant to deliver vacant physical possession of the suit property.
4. The suit schedule property is situated in survey No.56, of Kothanur Village, K.R.Puram, Hobli, Bangalore South Taluk, measuring 13 guntas, consisting of ACC Sheet Roofed House, borewell and the entire property is enclosed by a stone-slab fence, 4 bounded on east by the remaining portion of the same survey number, west by road, north and south by the remaining portion of the same survey number. The dimension of the property has not been disclosed in the schedule.
5. According to the plaint averments, the defendant being the owner of the suit schedule property agreed to sell the schedule property in her favour for a total sale consideration of Rs.39,60,000/-. Accordingly, an agreement was entered into between them on 14.12.2004. A sum of Rs.1,00,000/- was paid by means of Cheque bearing No.027218, dated 12.12.2014 and a sum of Rs.10,000/- by cash as advance, for which a separate receipt was also issued by the defendant. According to the plaintiff, the entire sale transaction was required to be completed within 15 days from 14.12.2004. It was further contended that a sum of Rs.4,00,000/- was paid by means of a Cheque drawn on 5 Citi Bank, Bangalore on the date of the agreement. Thus, in all a sum of Rs.5,10,000/- was received as advance consideration. It is further contended by the plaintiff that a sum of Rs.16,00,000/- was paid in cash on 16.12.2004, for which the defendant executed a receipt and delivered vacant possession of the suit property and performed other part of the contract. Again on 20.12.2004, a further sum of Rs.1,00,000/- was paid in cash and on 20.12.2004, draft sale deeds were exchanged between the parties and the sale deed was finalized to be registered on 28.12.2004.
6. Contending that the defendant requested the plaintiff a sale consideration of Rs.16,50,000/- to be paid under three demand drafts. One for Rs.9,20,000/- to be purchased in the name of one Mulakkal Thomas George, one for a sum of Rs.1,30,000/- in favour of Jennifer Ashok Kumar and one for Rs.6,00,000/- in favor of the defendant as stated in para-11 of the plaint. 6 According to her, the entire Rs.38.50,000/- was paid. What was to be paid was only Rs.1,00,000/- and that she was always ready and willing to perform her part of the contract. Since the defendant did not come forward to execute the sale deed, she lodged a complaint on 29.12.2004 and that the plaintiff was also dispossessed from the suit schedule property. Therefore, she filed the suit for specific performance of the agreement.
7. The defendant contested the suit. She admitted the execution of the agreement for a sale consideration of Rs.39,60,000/- payable by the plaintiff to her. According to her, no agreement came to be executed on 14.12.2004. On the contrary, it was executed on 13.12.2004. She denied the receipt of Rs.16,00,000/- in cash on 16.02.2004. According to her the plaintiff has fraudulently manipulated the letter addressed by the defendant to her the manner in which the payments are to be made to her and taking 7 advantage of the space available in between the tabular column and the signature of the plaintiff she has interpolated as if she has paid Rs.16,00,000/- in cash as advance. According to her, she has not received a sum of Rs.16,00,000/- on 16.12.2004 and the plaintiff did not possess the said money. She admitted the receipt of Rs.1,00,000/- on 28.12.2014. She further admitted that she has received the money by means of a demand draft on 27.12.2004. She contended that in all she has received a sum of Rs.22,60,000/- and not Rs.38,60,000/- as contended by the plaintiff. She contends that by creating and manipulating the receipt, the plaintiff is trying to knock off the valuable property. In the circumstances, she requests the Court to dismiss the appeal.
8. Based on the above pleadings, the following issues were framed by the court below:
8
"1. Whether the plaintiff proves that she was always ready and willing to perform her part of the Agreement dated 14.12.2004?
2. Whether the plaintiff proves that she is entitled to get the sale Deed executed from the defendant and on her failure through the Court?
3. Whether the plaintiff proves the alleged constructions by the defendant?
4. Whether the plaintiff is entitled to the relief claimed?
5. What decree or order?
Additional Issue:
Whether the plaintiff is entitled for delivery of vacant possession of the suit schedule property from the defendant as sought for?"
9. To prove their respective contentions, two witnesses were examined on behalf of the plaintiff. PW-1 9 who is the plaintiff Smt. Susheela Sharma and PW-2 is one Shri.V.Hanumantharaju, who was the attestor to Exhibit-P9 the acknowledgement for having paid Rs.16,50,000/- by way of three demand drafts. The plaintiff has relied upon Exhibit P1 to P21. the defendant alone was examined as DW-1. the trial court after considering the entire evidence let in by the parties held issue nos. 1 to 4 and additional issues in negative and dismissed the suit. Challenging the legality and correctness of the same, the present appeal is filed.
10. Shri.K.G.Sadashivaiah, learned counsel for the appellant submits that the trial court has committed an error in not considering Exhibit-P7 and P8 properly. According to him, the findings of the trial court that there is an interpolation of Exhibit-P7 is incorrect. According to him, the plaintiff has paid Rs.16,00,000/- as further advance under Exhibit-P7 on 16.12.2004. Accordingly, Exhibit-P7 came into 10 existence. The trial Court without proper appreciation to finding has erroneously come to the conclusion that Exhibit-P8 is on account of fraud played by the plaintiff and there is manipulation of the record by interpolating the alleged payment of Rs.16,00,000/-. He further contends that the trial court was required to grant a decree for specific performance of the contract or in the alternative, he contends that atleast the trial court was required to direct for refund of Rs.22,60,000/- by moulding the relief. In the circumstances, he requests the Court to reappreciate the entire evidence and set-aside the judgment and decree of the trial court.
11. Per contra, Shri.Gangadhar Aithal, learned counsel appearing the respondent submits that none of the grounds urged by the appellant are tenable.
According to him Exhibit-P7 and P8 are fabricated/manipulated documents. When the plaintiff 11 has not approached the court with clean hands, the trial court is justified in dismissing the suit without granting the specific performance. According to him, granting a decree for specific performance is a discretionary relief which can be granted by the Court to a person who approaches the court with clean hands. When the plaintiff has not approached the Court with clean hands and when the plaintiff has manipulated the records by interpolating Exhibits-P7 and P8, the plaintiff is not entitled to claim the relief for specific performance.
12. He further submits that the plaintiff has utterly failed to show that she paid Rs.16,00,000/- in cash on 16.12.2004. At the first instance, there is nothing on record to show that she had Rs.16,00,000/- in cash with her and no witnesses are examined to show that she paid Rs.16,00,000/- in cash to the defendant on 16.12.2004. If really the cash of Rs.16,00,000/- was 12 paid to the defendant, the plaintiff should have placed the material to show that she had ready cash with her and it was paid in the presence of a witness. For the reasons best known to the plaintiff, she has not placed any material to show that she had ready cash of Rs.16,00,000/-. That no man of prudence would give Rs.16,00,000/- in cash without their being witnesses. He further submits that if Exhibit-P7 and P8 are read together, it further discloses that the theory of the plaintiff that she paid Rs.16,00,000/- on 16.12.2004 and further a sum of Rs.1,00,000/- on 20.12.2004 would negative the contention of the plaintiff case. Exhibit-P7 and P8 are read together even by man of ordinary prudence he would come to the conclusion that they are got up documents and would not convey any meaning.
13. Taking us through ground no.7, he submits that the contention of the plaintiff that she has paid 13 Rs.38,60,000/- as advance is incorrect. He further submits that the Advocate for the appellant while cross- examining DW-1 has made a specific suggestion to the defendant that - whether you are willing to execute the sale deed if Rs.17,00,000/- is paid to you by the plaintiff? The very suggestion made by the plaintiff's counsel to DW-1 that whether the defendant is willing to execute the sale deed on payment of Rs.17,00,000/- would demonstrate the theory of the plaintiff that she has paid cash of Rs.16,00,000/- false.
14. He further submits that when the plaintiff contends that she has paid Rs.38,60,000/- to the defendant in ground no.7 of the appeal memo, she would not restrict for refund of Rs.22,60,000/- only. Therefore, he contends that the very contention of the plaintiff proves that all is not well in the present case and that in order to knock off the valuable property of the defendant an attempt is made by the plaintiff by 14 manipulating Exhibit - P7 and P8 and therefore he submits that the plaintiff is not entitled for refund of any amount.
15. After hearing the learned counsel for both the parties, the following points arise for consideration in this appeal:
i) Whether the appellant / plaintiff has proved that she has paid a sum of Rs.38,60,000/- as against the full sale consideration of Rs.39,60,000/-?
ii) Whether the plaintiff is entitled for the relief of specific performance or refund of advance money if so, to what extent?
16 The facts that are undisputed in this appeal to the following extent. The parties admit the execution of the sale agreement as per Exhibit-P6, which is dated 14.12.2004. The defendant had agreed to sell her property at Rs.300/- per sq. feet for a sum of 15 Rs.39,60,000/-. Time is the essence of contract. The entire sale transaction has to be completed within 15 days from 14.12.2004. The actual dispute between the parties is only with regard to payment of Rs.16,00,000/- in cash on 16.12.2004. According to the plaintiff she paid a sum of Rs.16,00,000/- on 16.12.2004 to the defendant after securing an acknowledgment vide Exhibit-P7. According to the defendant, the plaintiff had no money to pay Rs.16,00,000/- and no such document was executed by the defendant and that the plaintiff has misused the document executed by the defendant vide Exhibit-P7 by interpolating to the extent of making an acknowledgment for having paid Rs.16,00,000/- in cash in advance. According to him the trial court has rightly rejected the contention of the plaintiff because, the plaintiff has not proved the payment of Rs.16,00,000/- .It is the specific contention of the defendant that the 16 plaintiff did not possess Rs.16,00,000/- in cash to pay on 16.12.2004.
17. In order to appreciate the case of the plaintiff that she paid Rs.16,00,000/- in cash as further advance on 16.12.2004 she has not placed any material to show that had ready cash of Rs.16,00,000/- with her. She has also not chosen to examine any person to show Rs.16,00,000/- was paid to the defendant in cash on 16.12.2004, she has only relied upon Exhibit - P7,. We have perused Exhibit-P7 a typed document which has got two parts. One is a tabular column which reads as 'details for payment' and below that we found the signature of the defendant which is marked as Exhibit- P7(a), which is a typed document. It has got two parts, one in tabular column, which reads as 'details for payment' and below that we found the signature of the defendant which is marked as Exhibit-P7(a). In between 17 the signature of the defendant and the tabular column in a typewriter the following sentence are included:
"Received total Rs.16,00,000/- (rupees sixteen lakhs only) on 16.12.2004 as above stated manner from Smt.Susheela Sharma. I delivered possession of said properties to Smt.Susheela Sharma on this day, bearing Sy.No.56, situated at Kothnur Village, K.R. Pura Hobli, Bangalore South Taluk, measuring 110 feet x 120 feet." (emphasis supplied by us)
18. From reading of the portion emphasized by us it is clear that the defendant has received Rs.16,00,000/- on 16.12.2004. As stated above, if we read this portion of the document then necessarily we have to refer to the tabular column which discloses the various payments payable by the plaintiff to the defendant, it does not even tally with the amount of Rs.16,00,000/- as stated in the above portion which is altogether in a different ink.18
19. According to the plaintiff, the payment of Rs.16,00,000/- was paid to the defendant at her house. Admittedly, the defendant is an NRI and she was a resident of Kuwait and she had come to Bangalore to sell the property. At the relevant point of time, she was not residing in Bangalore. When such being the case if the cash was paid on 16.12.2004, the plaintiff could not have typewriter in her house to type receipt of Rs.16,00,000/-. The tabular portion of Exhibit-P7 is not in a typewriter but it is a computer print out. If really Rs.16,00,000/- was paid to the defendant at her house the same would also be in computer printing the said portion.
20. On perusal of the portion of payment of Rs.16,00,000/- one can easily make out that it is an interpolation made subsequent to obtaining Exhibit-P7 from a computer print out, making use of the space 19 available between the signature found below the tabular form by inserting five lines in between the tabular form and the signature of the defendant.
21. We have also seen Exhibit-P8 this is a receipt stated to have been issued on 20.12.2004. Even this document is manipulated in two places and two sentences are inserted as hereunder:
"a sum of Rs.22,10,000/- (rupees twenty two lakhs ten thousand only),"
22. A careful perusal of Exhibit-P8 discloses that again this documents is manipulated. As per Exhibit-P8 and P9, which are different typewriter and different ink though a sum of Rs.1,00,000/- was paid on 20.12.2000, Rs.22,10,000/- and Rs.23,10,000/- as per Exhibit-P8(d) and P8(e) are interpolated to make out the case as if she paid Rs.16,00,000/- on 16.12.2004. 20
23. The trial court after appreciating the entire evidence has rightly come to the conclusion that Exhibit-P8(d) and P8(e) are interpolated. Similarly Exhibit-P7 is also interpolated and made use by the plaintiff to suit her convenience. When the defendant was examined as DW-1 the appellant's counsel has put a question as hereunder:
"Q. Are you ready to receive 17,00,000/- and then to execute the sale deed in favour of the plaintiff? A. No. It is too late."
24. If really Rs.16,00,000/- was paid on 16.12.2004 and what was to be paid by the plaintiff was only Rs.1,00,000/- there was no necessity for the plaintiff's counsel to suggest that the plaintiff was willing to pay Rs.17,00,000/- instead of Rs.1,00,000/-. From the suggestion, it is clear that it was well within the knowledge of the plaintiff's counsel that what was 21 paid to the defendant was only Rs.22,60,000/- and not Rs.38,60,000/- as contended by the plaintiff.
25. In ground no.7, of the appeal memo, the appellant has stated as hereunder:
"7. The Trial Court also committed a serious mistake of law in not considering the fact that the respondent had admitted to have received a sum of Rs.22,60,000/-. In the absence of any proof that the respondent had suffered any damage or loss, the respondent could not have forfeited any amount. It was for the Trial Court to have worked out equities by directing the respondent to refund the admitted amount of Rs.22,60,000/- along with interest from the date of the suit. The impugned judgment of the Trial Court is therefore oppressive and..."
26. From the above grounds, it is clear that if really the plaintiff had paid Rs.38,60,000/- as advance sale consideration she would not have requested this Court to refund only Rs.22,60,000/- instead of 22 Rs.38,60,000/-. From the above discussion, it is clear that the plaintiff-appellant has failed to make out that Rs.16,00,000/- was paid in cash on 16.12.2004 to the defendant at her house. When the plaintiff has failed to prove the payment of Rs.16,00,000/- and when she has wrongly claimed the said payment, the question of granting any decree for specific performance in favour of such person would not arise at all.
27. As rightly pointed out by the counsel for the respondent granting of decree of specific performance is a discretionary power of the court. This discretion has to be exercised by the Court with all due diligence and care and such a discretion cannot be granted to person who has not approached the court with clean hands and that too in the background that the appellant without paying a sum of Rs.16,00,000/- is making a claim as if she has paid Rs.16,00,000/-. In the circumstances, we are of the view that the Trial Court is 23 justified in rejecting the request of the plaintiff to grant a relief of specific performance.
28. Having held so, the next point to be considered by us is -
"Whether the plaintiff is entitled for refund of advance sale consideration? If so, to what extent?
29. Admittedly, on account of non-execution of the sale deed by the defendant in favour of the plaintiff, the value of the property has been appreciated by manifold. When the property was agreed to be sold, it was in the outskirt of the city limits, now it is well- within the city limits and has become a well developed and valuable property. On account of non-granting of a decree, the defendant has not suffered any loss or damages. Therefore, the plaintiff's counsel submits that 24 atleast Rs.22,60,000/- paid to the defendant be refunded to the plaintiff with interest.
30. Per contra, Shri.Gangadhar Aithal, learned counsel placing reliance on the judgment of Hon'ble Supreme Court in Sathish Batra vs. Sudhir Rawal in Civil Appeal No.7588/2012, dated 18.10.2012 contends that the defendant is entitled to forfeit a sum of Rs.5,10,000/- which was paid at the time of the agreement and that based on this the Hon'ble Court may direct the defendant/respondent to refund Rs.16,50,000/- without any interest.
31. On perusal of the judgment relied upon by the Hon'ble Supreme Court and on considering the facts of this case, we are of the view that due to non-granting of a decree for specific performance, the value of the property has been increased manifold. We are of the view that the entire amount of Rs.22,60,000/- is 25 ordered to be refunded to the appellant/plaintiff with interest @ 6% per annum from the date of suit till the date of payment.
32. In the result, we allow this appeal in part and in modification of the judgment and decree of the trial court, the suit of the plaintiff in O.S. No.244/2005, dated 08.04.2009 is hereby decreed in part directing the defendant / respondent to pay a sum of Rs.22,60,000/- with interest @ 6% per annum from the date of the suit till the date of payment.
Parties to bear their costs.
Sd/-
JUDGE Sd/-
JUDGE JJ