Bangalore District Court
And Represented That The Owners Of The ... vs No.1 Informed That The Property In ... on 29 January, 2020
IN THE COURT OF THE XLII ADDL., CITY CIVIL & SESSIONS JUDGE AT
BENGALURU CITY (CCH.NO.43).
PRESENT: Sri.P.SRINIVASA,
B.A.L., LL.M.,
XLII ADDL., CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
Dated this the 29th day of January, 2020.
O.S.No.1428/2008
Plaintif:- Sri.C.Gangadhara Murthy,
S/o.late Shri Chennigappa,
No.322, 3rd A Cross,
III Block, Basaveswara Nagar,
Bangalore -560 079.
(By Adv. G.Krishnamurthy)
v.
Defendants:- 1. Sri.A.Krishnappa,
Since dead by:
Defendants 2 to 5 are the
LRs of defendant No.1.
2. Smt.Shanthamma,
W/o.Sri.A.Krishnappa,
Aged about 63 years,
No.1025, 11th Main,
RPC Layout, Vijayanagar,
Bangalore - 560 040.
3. Sri.B.K.Srinivasa,
S/o.Sri.A.Krishnappa,
Aged about 32 years,
No.1025, 11th Main,
RPC Layout, Vijayanagar,
Bangalore - 560 040.
Judgment
2 O.S.No.1428/2008
4. Smt.K.Sumitra,
W/o.Dr.Kemparaju,
Aged about 39 years,
No.20, 515, ABW Layout,
II Cross, HAL III Stage,
New Tippasandra,
Bangalore - 560 075.
5. Smt.Bharathi,
D/o.Shri.A.Krishnappa,
W/o.Shri.Vasudeva Murthy,
Aged 38 years,
R/at No.1227/68, I Main Road,
MRCR Extension, Vijayanagara,
Bangalore -560 079.
6. T.Hanumanthraya,
S/o.Thimmarayappa,
Aged about 59 years,
Residing at No.4,
3rd Main Road, 10th Cross,
Agrahara Dasarahalli,
Bangalore - 079.
7. Smt.Mangala Gowramma,
W/o.late Suresh,
Aged about 40 years,
8. Sri.Harish,
S/o.late Suresh,
Aged about 23 years,
9. Usha,
D/o.late Suresh,
Aged about 21 years,
10. Smt.Vanaja,
W/o.late Nagaraj,
Aged about 40 years,
11. Sri.Karthik,
S/o.late Nagaraj,
Aged about 22 years,
Judgment
3 O.S.No.1428/2008
12. Kavya
D/o.late Nagaraj,
Aged about 20 years,
13. Smt.Shanthamma,
W/o.late Chennakeshava,
Aged about 39 years,
14. C.Nagarathna,
D/o.late Chennakeshava,
Aged about 12 years,
15. C.Jayanthi,
D/o.late Chennakeshava,
Aged about 10 years,
(Defendants 14 and 15 are minor and they
represented by their mother natural
guardian defendant No.13)
16. Smt.Saroja,
W/o.late Ravi,
Aged about 30 years,
17. Sri.Suhas,
S/o.late Ravi,
Aged about 5 years,
18. Jitheen,
S/o.late Ravi,
Aged about 5 years,
(Defendants 17 and 18 minors and they
are represented by their mother guardian
defendant No.16)
(Defendants 7 to 18 are R/at No.23,
4th Main Road, 10th Cross,
Agrahara Dasarahalli,
Bangalore - 560 079.
19. Smt.Lakshmamma,
W/o.late T.Chandrappa,
Aged about 51 years,
Judgment
4 O.S.No.1428/2008
20. Sri.Yathish,
S/o.late T.Chandrappa,
Aged about 38 years,
21. Sri.Raghavendra,
S/o.late T.Chandrappa,
Aged about 36 years,
22. Sri.Thimmarayagowda @ Mahesh,
S/o.late T.Chandrappa,
Aged about 23 years,
Defendants 19 to 22 are R/at No.4,
3rd Main Road, 10th Cross,
Agrahara Dasarahalli,
Bangalore - 560 079.
(D1 - Dead
D2 to D5 by Adv. K.R.Nagendra
D6 to D22 by Adv. Mailappa.K)
Date of institution of the suit : 20.02.2008
Nature of the suit : Specific Performance of
Contract & Declaration.
Date of commencement of : 03.03.2017
Recording of the evidence
Date on which the Judgment : 29.01.2020
was pronounced
Total Duration : Years Months Days
11 11 09
(P.SRINIVASA)
XLII ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
Judgment
5 O.S.No.1428/2008
JUDGMENT
The plaintiff has filed the above suit for specific performance of contract, declaration that Gift Deeds dated 13.05.2004 (i.e., Ex.P20 to Ex.P23) executed by defendant No.1 in favour of defendants 2 to 5 are null and void and not binding on the plaintiff and costs.
2. The plaintiff's case in brief as under:-
Defendant No.1 is the plaintiff's vendor. The defendant No.2 is the wife of defendant No.1 and defendants 3 to 5 are the children of defendants 1 and 2 herein. Defendants 6 to 22 are the descendent's of Late Thimmarayappa. Said Thimmarayappa and his two sons namely, Maheshwarappa and Chandrappa agreed to sell Land bearing Sy.No.69/2A of Agarahara Dasarahalli, Yeswanthpura hobli, Bengaluru North taluk, measuring 3 acre 10 guntas for a consideration of Rs.3,00,000/- to the defendant no.1 vide., Agreement of Sale dated 18.05.1981. After the death of Thimmarayappa, Maheshwarappa & Chandrappa, their legal representatives namely, T.Hanumantharayappa and others entered into Agreement of Sale with defendant No.1 and received consideration. On account of disputes between the above said parties, defendant No.1 filed CMP.No.16/1998 before the Hon'ble High Court of Karnataka for appointment of an Arbitrator to Judgment 6 O.S.No.1428/2008 resolve the dispute and the Hon'ble High Court of Karnataka was pleased to appoint an Arbitrator and said Arbitrator passed award in favour of defendant No.1. The defendant No.1 approached the plaintiff and represented that the owners of the land bearing Sy.No.69/2A have agreed to sell the property to him as per the award passed by the Arbitrator and he is in need of money to pay the balance amount and also informed that he intended to sell portion of the said property, measuring East to West: 255 feet and North to South: 227 feet (i.e.,"A" schedule property) so as to mobilize the amount and to pay to the owners to get the Sale Deed registered in his favour and requested the plaintiff to help him in purchasing the said property. The plaintiff agreed to purchase "A" schedule property and Memorandum of Understanding was entered on 09.04.1999 and defendant No.1 agreed to sell the "A" schedule property to the plaintiff or his nominees for consideration of Rs.711/- per square feet. The defendant No.1 informed that the property in question was notified for acquisition and same was de-notified on condition that the owners should withdraw all the cases in Hon'ble High Court of Karnataka/Civil Courts and develop the said lands as per the terms and conditions laid down in the Government Order. The defendant No.1 promised to execute an Agreement of Sale after securing Sale Deed in his favour in accordance with the award Judgment 7 O.S.No.1428/2008 and pursuant to securing a clearance certificate from BDA indicating that the land has been de-notified. He also promised to pay the betterment charges. The defendant No.1 also promised that he will see that all the litigations are withdrawn by the owners as per the Government Orders. On the date of execution of Memorandum of Understanding, the plaintiff paid a sum of Rs.13,00,000/- and further amount of Rs.27,00,000/- was paid at the request of the defendants on 24.10.1999 and defendant No.1 has endorsed the same on the Memorandum of Understanding. The defendant No.1 filed Ex.P.No.568/1999 for execution of the award passed by the Arbitrator and the court was pleased to execute the Sale Deed in accordance with the arbitration award made in favour of defendant No.1 on 25.08.1999 in respect of 2 acres 20 guntas, which was available out of 3 acres 10 guntas. The defendant No.1 has utilized the amount paid by the plaintiff to secure the Sale Deed dated 25.08.1999. The defendant No.1 has not paid the betterment charges as per Memorandum of Understanding and also suppressed the existence of road in the middle of the land. In view of the same, the plaintiff and defendant No.1 negotiated with the intervention of the witnesses and entered into an Agreement of Sale in continuation of the Memorandum of Understanding on 12.10.2002. The Agreement of Sale was entered into in respect of land after deducting the area Judgment 8 O.S.No.1428/2008 of the road from "A" schedule property and the extent available was 54,400 square feet. The road was earmarked in the middle of the road by the BDA and therefore, the property agreed to be sold was bifurcated into two units i.e., one portion measuring 250 feet x 160 feet i.e., Item No.1 of "B" schedule property and another portion 180 x 80 feet i.e., Item No.2 of "B" schedule property. The plaintiff agreed to pay enhanced consideration of Rs.750/- per square feet and defendant No.1 agreed to sell "B" schedule property either in the name of the plaintiff or in the name of his nominees in small bits or as per the sketch enclosed to the Agreement of Sale dated 12.10.2002. The defendant No.1 is required to pay betterment charges pursuant to registration of 7,200 square feet as per Clause 6(a) of the Agreement. In view of the same, defendant No.1 agreed to register the suit "B" schedule property in 3 phases as described in the Agreement of Sale. The plaintiff paid a sum of Rs.31,00,000/- under the Agreement of Sale and a sum of Rs.40,00,000/- was paid under the Memorandum of Understanding and in total, the plaintiff has paid Rs.71,00,000/- as on the date of Agreement of Sale. The defendant No.1 also agreed to secure the signatures of his wife and children to the Sale Deeds as consenting witnesses. The defendants 2 and 3 are the signatories to the Agreement of Sale as consenting witnesses. A week or thereafter, a format of Sale Judgment 9 O.S.No.1428/2008 Deed was also finalized and parties agreed that sum of Rs.31,00,000/- paid under the Agreement of Sale will be adjusted as against sale consideration of the second phase of registration as per Clause 6(b) and a sum of Rs.40,00,000/- paid will be adjusted towards third phase of registration as per Clause 6(c). The defendant No.1 requested the plaintiff to pay a sum of Rs.20,00,000/- to execute the Sale Deed as per Clause 6(a) of the Agreement and agreed to make an endorsement in respect of receipt of total consideration. Accordingly, the plaintiff paid another sum of Rs.20,00,000/- on 14.11.2002 and endorsement was also made to that effect. The defendant No.1 has made endorsement for having received a total sum of Rs.91,00,000/-. The defendant No.1 has executed two Sale Deeds in respect of two plots measuring 1200 square feet each on 19.04.2003 in Item No.2 of "B" schedule property in favour of plaintiff's nominees and a sum of Rs.14,80,000/- was paid as desired by defendant No.1. The payment has been endorsed in the Agreement of Sale on the same day. The defendants 2 and 3 have also signed the said Sale Deed as consenting witnesses. The amount payable in respect of aforesaid two Sale Deeds as per the agreement works out to Rs.18,00,000/-, as desired by defendant No.1 a sum of Rs.4,80,000/- each was shown in the Sale Deeds and a sum of Rs.5,20,000/- is noted in the Agreement of Sale. Total amount of Judgment 10 O.S.No.1428/2008 Rs.1,05,80,000/- is noted in the Agreement of Sale. The amount paid as on the date is much more than the agreed sale consideration payable for first phase. At the request of defendant No.1, the plaintiff paid further sum of Rs.5,00,000/- by way of cheque and a sum of Rs.20,00,000/- by cash. The said payment has been endorsed on the Agreement of Sale on 17.03.2004. On 18.03.2004, defendant No.1 executed 3 Sale Deeds in respect of Item No.1 of "B" schedule property in favour of plaintiff's nominees and consideration was paid and adjusted accordingly.
Even after executing 5 Sale Deeds, defendant No.1 failed to pay betterment charges. At the same time, the plaintiff came to know that there are litigations pending in respect of the schedule property initiated by one Veeranna and Srinivasaiah in O.S.Nos.593/2000 and O.S.No.6302/1995 which was suppressed by defendant No.1 at the time of executing the documents. The plaintiff requested defendant No.1 to get the dispute resolved with the aforesaid persons but, defendant No.1 could not resolve the same and requested the plaintiff to negotiate with Veeranna and Srinivasaiah and settle the disputes amicably on his behalf at the cost of defendant No.1. Accordingly, the plaintiff negotiated and by incurring an expense of Rs.51,00,000/- settled the said dispute and said fact is within the knowledge of defendant No.1. Thus, in all, defendant No.1 is having a sum Rs.98,80,000/- in his Judgment 11 O.S.No.1428/2008 custody on account of this property. The defendant No.1 failed to pay the betterment charges and execute the Sale Deeds in respect of remaining properties. In view of the same, the plaintiff could not secure the khatha certificates and develop the property. Under the said circumstances, the Government of Karnataka issued show-cause notice to defendant No.1 on 26.04.2004 for withdrawal of de-notification order. A public interest litigation was filed on 09.02.2005 and same came to be dismissed in view of intervention of the plaintiff and an undertaking given in the said petition on 23.05.2005. On 03.04.2006, the Government of Karnataka withdrew the de-notification order and said order was challenged before the Hon'ble High Court of Karnataka in W.P.No.5406/2006 and same was stayed on 10.04.2006. Subsequently, the plaintiff pursued the matter and ultimately the Government on the recommendation of the BDA, withdrew the said notification on 16.08.2007 excluding 43½ guntas used for formation of road. Immediately after issuance of said notification, the plaintiff again requested defendant No.1 to pay betterment charges and to execute and register the Sale Deed. The defendant No.1 requested the plaintiff to send a draft Sale Deed and accordingly, plaintiff handed over copy of the draft Sale Deed to defendant No.1 on 01.10.2007. In the meanwhile, defendant No.1 instigated his son i.e., defendant No.3 to issue show-cause Judgment 12 O.S.No.1428/2008 notice to one of the purchasers i.e., M.K.Sathya Prasad informing that property purchased is a joint family property and he has share in it and defendant No.1 is suffering from mental weakness. Said M.K.Sathya Prasad issued reply to the said notice. The plaintiff got suspicion about the behaviour of defendant No.1 and applied for encumbrance certificate and came to know that defendant No.1 clandestinely executed Gift Deeds in favour of his wife and children with fraudulent intention to cause unlawful loss to the plaintiff. The defendants knowingly fully well about execution of Memorandum of Understanding, Agreement of Sale and Sale Deeds in favour of plaintiff's nominees, have colluded with one another and fabricated the Gift Deeds to deprive plaintiff's right. The plaintiff has paid substantial amount to defendant No.1 and part performance of the contract has taken place by virtue of execution of Sale Deeds by defendant No.1 in favour of plaintiff's nominees. Hence, Gift Deeds are not binding on the plaintiff and said Gift Deeds are in violation to the Agreement of Sale executed by defendant No.1. The plaintiff learnt that defendant No.1 by suppressing the Memorandum of Understanding and Agreement of Sale executed in favour of the plaintiff, executed an Agreement in favour of one Smt.Savitha Ben Shah, Divya Shah, Nirmal Shah and Dinesh.K.Shah on 29.05.2001 in respect of portion of the land which he had agreed to sell in Judgment 13 O.S.No.1428/2008 favour of the plaintiff. The conduct of defendant No.1 and his family members is unfair and same has to be depreciated by the court. The plaintiff has put up compound wall around the entire property sold and agreed to be sold in favour of the plaintiff and plaintiff is in possession of the same. The defendant No.1 agreed to sell "B" schedule property, totally measuring 54,400 square feet under the Agreement of Sale dated 12.10.2002. As part performance, defendant No.1 has executed Sale Deed in respect of 16,800 square feet, leaving 37,600 square feet. The defendant No.1 is bound to execute and register the Sale Deed in respect of balance area of 37,600 square feet either in the name of the plaintiff or in the name of his nominee. The defendants 2 to 5 are bound to join in executing the Sale Deed in favour of plaintiff. The defendant No.1 has sold 14,400 square feet in favour of plaintiff's nominee in respect of Item No.1 of "B" schedule property and require to execute Sale Deed along with other defendants in respect of 25,600 square feet in the said Item No.1. The defendant No.1 has sold 14,400 square feet under 3 different Sale Deeds in Item No.1 of "B" schedule property and remaining area available in the said item is 25,600 square feet i.e., Item No.1 of suit "C" schedule property. The defendant No.1 has sold 2,400 square feet in Item No.2 of "B" schedule property under two Sale Deeds, the remaining area available in the said item is 12,000 Judgment 14 O.S.No.1428/2008 square feet i.e., Item No.2 of "C" schedule property. The defendants have to jointly execute and register Sale Deed in favour of plaintiff in respect of Item Nos.1 & 2 of "C" schedule properties. The total sale consideration payable by the plaintiff to defendant No.1 in respect of Agreement schedule property and the amount already paid to defendant No.1 on different dates and also the amount spent by the plaintiff on behalf of defendant No.1 to secure the title deeds clear and balance amount payable as follows:
(I) Total Area of Agreement schedule 54,400 sq. ft.
property :
(ii) Sale Deed already registered in respect of area:
Under Item No.1 of Sch.B 14,400 sq.ft.
Under Item No.2 of Sch.B 2,400 sq. ft.
16,800 sq. ft.
(ii) Balance area to be registered: 37,600 sq. ft.
(iii) Amount agreed per sq. ft. 750/- per sq. ft.
(v) Total consideration: (54440 x 750) 4,08,00,000-00
(vi) Amount already paid:
(a) Under MOU,
Agreement to Sell &
Sale Deeds: 1,73,80,000
(b) amount spent by
plaintiff for settling the
pending litigation and
getting title deeds
cleared: 51,00,000
2,24,80,000 2,24,80,000-00
Balance payable 1,83,20,000-00
Judgment
15 O.S.No.1428/2008
The defendant No.1 failed and neglected to comply with the terms of the agreement, having received substantial consideration without any justification. The plaintiff issued legal notice on 03.12.2007 to the defendants and the defendants have issued untenable reply to the said notice and the plaintiff has issued rejoinder to the said reply. The plaintiff is always ready and willing to perform his part of the contract. The plaintiff has paid consideration over and above the terms agreed under the agreement. The defendant No.1 has not paid betterment charges as per agreement and without prejudice to the contention taken above, the plaintiff alternatively submits that if the court comes to the conclusion that a sum of Rs.51,00,000/- paid is not accountable by defendant No.1, the plaintiff will pay the amount immediately on determination. The plaintiff is ready to deposit the entire balance sale consideration of Rs.1,83,20,000/- before this court. The plaintiff makes it clear that he has been making specific to the defendants that he is ready to pay the balance amount and get the Sale Deed registered as per the terms of the Agreement. Hence, the plaintiff has filed the above suit.
3. During the pendency of above suit, defendants 5, 6 to 22 got themselves impleaded in the above suit. The defendants 1 to 22 are represented by their respective counsels. The defendants Judgment 16 O.S.No.1428/2008 1 to 4 have filed common written statement and defendant No.5 has adopted the same and defendants 6 to 22 have filed common written statement. The defendants 1 to 5 admit that defendant No.2 is the wife of defendant No.1 and defendants 3 to 5 are the children of defendants 1 and 2. The defendants 1 to 5 admit execution of Agreement of Sale by Thimmarayappa, Maheshwarappa and Chandrappa in favour of defendant No.1 and filing of CMP.No.16/1998 by defendant No.1 before the Hon'ble High Court of Karnataka and appointment of Arbitrator and passing of award in favour of defendant No.1. The defendants 1 to 5 admit that defendant No.1 and plaintiff agreed to sell and purchase "A" schedule property and entered into Memorandum of Understanding on 09.04.1999. The defendants 1 to 5 also admit that property was notified and later it was de-notified by the Government. The defendants 1 to 5 have denied that defendant No.1 had agreed to pay betterment charges and execute the Agreement of Sale after securing clearance certificate from BDA as false. The defendants 1 to 5 admit receipt of Rs.40,00,000/- under Memorandum of Understanding and also filing of execution petition by defendant No.1 and execution of Sale Deed by the court in favour of defendant No.1. The defendants 1 to 5 have denied plaint averment that amount paid by plaintiff was utilized to secure Sale Deed in favour of defendant No.1. The defendants Judgment 17 O.S.No.1428/2008 admit that betterment charges was not paid by defendant No.1 but, contended that BDA was not receiving the betterment charges and it was engaged in forming road in the property and it was in the process of acquisition hence, betterment charges could not be paid. The defendants 1 to 5 admit execution of Agreement of Sale and sale of 54,400 square feet property and division of property into Item Nos.1 & 2 and also admit that price i.e., sale consideration was enhanced from Rs.711 to Rs.750/-. Further, the defendants 1 to 5 admit that the defendant No.1 had agreed to sell the property either in the name of plaintiff or in the name of his nominee and also admit that as per para 11 of the agreement he had agreed to sell the property within the time stipulated under the agreement and time was the essence of the contract. Further, the defendants 1 to 5 admit that as per Agreement of Sale it was agreed to sell the property in three phases as described in the agreement of sale and also admit receipt of Rs.31,00,000/- under the Agreement of Sale and receipt of total amount of Rs.71,00,000/-. Further, defendants 1 to 5 admit that defendants 2 and 3 are also consenting witnesses to the agreement. The defendants 1 to 5 also admit receipt of amount on 14.11.2002 and endorsement made therein in the Agreement of Sale. Further, the defendants 1 to 5 admit that two Sale Deeds were executed in favour of plaintiff's nominee on 19.04.2003 and Judgment 18 O.S.No.1428/2008 receipt of amount under the said Sale Deed and also admit that defendants 2 and 3 have signed the said Sale Deed as consenting witnesses. The defendants 1 to 5 also admit receipt of Rs.25,00,000/- on 17.03.2004. The defendants 1 to 5 have contended that plaintiff had agreed to register the property within one month at his cost but, he failed to do so and it was also agreed that the betterment charges has to be paid by the prospective purchasers and defendant No.1 is not liable to pay any betterment charges. The suits in O.S.No.593/2000 and 6302/1995 are baseless and plaintiff was informed about the said suits at the time of Agreement of Sale and defendant No.1 has not suppressed the pendency of the said suits. The defendants 1 to 5 also denied the averment that plaintiff spent Rs.51,00,000/- in settling the above said suits. The defendants 1 to 5 have also denied the averment that defendant No.1 is in receipt of a sum of Rs.98,80,000/- in excess as absolutely false. The defendants 1 to 5 have contended that defendant No.1 has rescinded the Agreement of Sale and therefore, execution of Sale Deed doesn't arise for consideration. Further, the defendants 1 to 5 have contended that the plaintiff approached the BDA and got issued notice for withdrawal of de-notification orders. The defendant immediately approached the BDA and filed suitable reply. The plaintiff had instigated some people in the area to file public Judgment 19 O.S.No.1428/2008 interest litigation and notice was issued to defendant No.1. The plaintiff approached defendant No.1 and assured to settle the matter but, when defendant No.1 learnt that same is the act of the plaintiff the defendant refused any help from the plaintiff and finally he took an undertaking before the court and matters were settled. The defendants 1 to 5 have contended that the plaintiff might have instigated his son to issue notice against plaintiff's nominee. The defendants 1 to 5 admit execution of Gift Deeds by defendant No.1 in favour of his wife and children. The defendant No.1 has called upon the plaintiff to take back his amount when the plaintiff was making illegal demands. The defendants have denied plaintiff's averment that plaintiff is ready and willing to perform his part of the contract as false. The defendants have not received sum of Rs.51,00,000/- and Agreement of Sale is also terminated by efflux of time. The plaintiff has not approached the court with clean hands and plaintiff has no money to purchase the suit schedule property. The property value has increased manifolds and court fee paid by the plaintiff is not as per law and on the above said ground, the plaintiff is not entitle for the reliefs claimed. The defendants 1 to 5 have contended that after de- notification on 21.08.1988 the Memorandum of Understanding was executed between the parties and from 21.08.1988 till 03.04.2006 there was no impediment for the plaintiff to get the Judgment 20 O.S.No.1428/2008 suit property registered. On account of plaintiff's inaction, the contract could not be performed. The suit is barred by limitation. Hence, prayed that suit may be dismissed with costs.
4. The defendants 6 to 22 in their written statement have contended that their predecessors-in-title namely, Thimmarayappa by investing joint family funds purchased land bearing Sy.No.69/2A measuring 4 acres 26 guntas situated at Agrahara Dasarahalli, Bengaluru vide., registered Sale Deed dated 22.10.1953. Said Thimmarayappa during his life time sold 1 acre 16 guntas and retained 3 acres 10 guntas with him and died on 21.04.1984, leaving behind his three sons namely, T.Hanumantharaya, T.M.Maheshwaraiah and Chandrappa. The said Thimmarayappa and his two sons namely, T.M.Maheshwaraiah and Chandrappa executed a registered power of attorney in favour of one A.R.Gururao on 07.02.1972 bearing Reg.No.54/71-72, to look after affairs of land bearing Sy.No.69/2, measuring 3 acres 10 guntas. The said GPA Holder made certain transactions with third parties and expired. In the meanwhile, City Improvement Trust Board i.e., now BDA acquired the aforesaid land for the purpose of formation of sites and at that point of time, defendant No.1 came forward and approached the predecessors of defendants 6 to 22 and promised them that he Judgment 21 O.S.No.1428/2008 will look after the affairs of the said land and get the property released from acquisition. The predecessors of defendants 6 to 22 reposed confidence in defendant No.1 and executed General Power of Attorney in his favour for release of said land from acquisition. The defendant No.1 after getting the power of attorney approached the predecessors of defendants 6 to 22 and defendant No.6 and obtained their signature on various blank stamp papers, blank printed forms, blank vakalathnamas and other various papers by saying that said papers are required for him to move before the BDA and Government for releasing the property from acquisition. The defendant No.6 and predecessors of defendants 6 to 22 without knowing the consequences signed the said papers and defendant No.1 has manipulated the said papers and created Agreement of Sale and later without knowledge to the predecessors of defendants 6 to 22 filed Civil Misc. Petition No.16/1998 before the Hon'ble High Court of Karnataka and engaged advocate on behalf of predecessors of defendants 6 to 22 by utilizing the blank signed vakalathnama and got the order for appointment of Arbitrator. The defendants 6 to 22 or their predecessors never knew about the arbitration proceedings and behind their back, arbitration award was passed. Therefore, defendants 6 to 22 have challenged the said award in A.C.No.76/1999 and said case is pending for consideration. Said Judgment 22 O.S.No.1428/2008 A.R.Gururao based on the General Power of Attorney executed in his favour entered into Agreement of Sale in respect of Sy.No.69/2, measuring 3 acres 10 guntas in favour of Karnataka Urban Housing Co-operative Societies, Bangalore and after the death of A.R.Gururao, said Society got the agricultural land converted into non-agricultural purpose and formed sites and allotted the same to its members. The Society members have filed number of cases for releasing the said property from acquisition by BDA. When the Government released the property in the year 1998 by de-notifying the same, the Society issued notice to the defendants for completing the sale transactions pursuant to agreement dated 28.01.1976. the defendants 6 to 22 renewed the agreement on 10.03.1999 and the Society filed O.S.No.4354/1999 and the defendants have entered into compromise accordingly. The defendant No.1 has challenged the said compromise decree in RFA before the Hon'ble High Court of Karnataka. Further, the defendants 6 to 22 have contended that defendant No.1 and plaintiff have colluded with each other with a view to counter blast O.S.No.4354/1999 and A.C.No.76/1999 filed against defendant No.1 in respect of suit schedule property and have filed the above suit falsely. The defendants 6 to 22 are the owners of the suit schedule property and defendant No.1 has no right, title, interest over the suit schedule property and Judgment 23 O.S.No.1428/2008 Agreement of Sale entered in favour of plaintiff doesn't convey any right in favour of the plaintiff and the suit is not maintainable under law. Hence, prayed that suit may be dismissed with costs.
5. The plaintiff has filed reply to the written statement filed by defendants 6 to 22. In the said reply, the plaintiff has contended that defendants 6 to 22 are not parties to the contract and their contentions are not relevant in the above suit and they have been permitted to come on record as interveners to place the disputes inter-se between defendant No.1 and defendants 6 to 22 in the suit. In the present suit, the claim of defendants 6 to 22 cannot be adjudicated and prayed that written statement of defendants 6 to 22 may be rejected.
6. On the basis of above pleadings, below mentioned issues arise for consideration:-
ISSUES
1. Whether the plaintiff proves that he was ready and willing to perform his part of the contract regarding the suit schedule property?
2. Whether defendants No.6 to 22 prove that the 1st defendant had no salable title over the suit schedule properties?
Judgment 24 O.S.No.1428/2008
3. Whether the plaintiff proves that the Gift Deeds executed by the 1st defendant in favour of defendants No.2 to 5 are created documents and they do not bind on him?
4. Whether the plaintiff proves that he has paid a sum of Rs.51,00,000/- to the 1st defendant?
5. Whether the 1st defendant proves that the suit is barred by limitation?
6. Whether the plaintiff proves that he has valued the suit property and has paid sufficient court fee?
7. Whether the plaintiff is entitle for the relief of specific performance?
8. What order or decree?
7. To prove the case of the plaintiff, plaintiff examined himself as PW-1 and got marked Ex.P1 to P45. The defendants 3 & 6 examined as DWs.1 & 2 and got marked Ex.D1 to D5.
8. Heard arguments. The learned counsel for plaintiff has relied upon the following citations reported in:
1. (2007) 10 Supreme Court Cases 231, in the case of P.S.Ranakrishna Reddy v.
M.K.Bhagyalakshmi and another.
2. (2004) 6 Supreme Court Cases 649, in the Judgment 25 O.S.No.1428/2008 case of P.D'Souza v. Shondrilo Naidu.
3. (2008) 4 Supreme Court Cases 464, in the case of Balasaheb Dayandeo Naik (dead) through LRs and others v. Appsaheb Dattatraya Pawar.
4. (2005) 12 Supreme Court Cases 764, in the case of S.Brahmanand and others v.
K.R.Muthugopal (dead) and others.
5. (2006) 3 Supreme Court Cases 634, in the case of Gunwantbhai Mulchand Shah and others v. Anton Elis Farel and others.
6. (2019) 3 Supreme Court Cases 704, in the case of Kamal Kumar v. Premlata Joshi and others.
The learned counsel for the defendants 2 to 5 has relied upon the citation reported in (2004) 7 Supreme Court Cases 251, in the case of Pukhraj D.Jain and otehrs v. G.Gopalakrishna. The learned counsel for the defendants 6 to 22 has relied upon the citations reported in AIR 2002 GUJARAT 209, in the case of Narendrabhai Chhaganbhai Bharatia v. Gandevi Peoples Co.op. Bank Ltd. and others and AIR 1941 PATNA 577, in the case of Mohammad Hanif and another v. Khairat Ali and others.
Judgment 26 O.S.No.1428/2008
9. My findings on the above said issues are as follows:-
Issue No.1:- In the Affirmative.
Issue No.2:- In the Negative.
Issue No.3:- In the Affirmative.
Issue No.4:- In the Negative.
Issue No.5:- In the Negative.
Issue No.6:- In the Affirmative.
Issue No.7:- In the Affirmative.
Issue No.8:- As per final order.
for the following:-
REASONS
10. Issue Nos.1, 3 to 7:- These issues are taken up
together for consideration to avoid repetition of facts, evidence and convenience.
11. Defendant No.2 is the wife of defendant No.1 and defendants 3 to 5 are the children of defendants 1 and 2. The defendants 6 to 22 are the descendent's of Thimmarayappa. There is no dispute regarding the above said relationship. PW-1 in his evidence has stated that Thimmarayappa, Maheshwarappa and Chandrappa entered into an Agreement of Sale on 18.05.1981 in favour of defendant No.1 agreeing to sell land bearing Sy.No.69/2A, Agarahara Dasarahalli, Yeshawanthpura Hobli, Bangalore North, measuring 3 acres 10 guntas for a consideration of Rs.3,00,000/- and after the death of Judgment 27 O.S.No.1428/2008 Thimmarayappa, Maheshwarappa and Chandrapppa, their legal representatives namely, T.Hanumantharaya and others also entered into Agreement of Sale with defendant No.1 and received consideration. Further, PW-1 has stated that on account of dispute between the above said parties, defendant No.1 filed CMP.No.16/1998 before the Hon'ble High Court of Karnataka for appointment of Arbitrator and accordingly, Arbitrator was appointed by the Hon'ble High Court of Karnataka and award was passed by the Arbitrator in favour of defendant No.1. Further, PW.1 has stated that defendant No.1 approached the plaintiff and represented that owners of the land bearing Sy.No.69/2A had agreed to sell the property to him as per the award passed by the Arbitrator and he has no money to pay the balance amount and therefore, intended to sell portion of the above said property measuring East to West:255 feet and North to South: 227 feet (i.e.,"A" schedule property) so as to mobilize the amount and to pay to the owners to get the Sale Deeds registered in his favour and requested the plaintiff to purchase the property and accordingly, plaintiff agreed to purchase the said property. Further, PW-1 has stated that Memorandum of Understanding was entered between plaintiff and defendant No.1 on 09.04.1999. Further, PW-1 has stated that defendant No.1 had informed him that property was notified for acquisition and same was Judgment 28 O.S.No.1428/2008 de-notified on the condition that the land owners should withdraw all cases in the Hon'ble High Court, Civil Court and develop the said land as per the terms and conditions laid down in the Government Order. The defendant No.1 promised to execute an Agreement of Sale after securing Sale Deed in his favour and after securing a clearance certificate indicating that the land has been de-notified and also promised to pay the betterment charges. As per orders passed in Ex.P.No.568/1999, Sale Deed was executed in favour of defendant No.1 on 25.08.1999 in respect of 2 acres 20 guntas which was available out of 3 acres 10 guntas. In support of plaintiff's contention, the plaintiff has produced Memorandum of Understanding and certified copy of Sale Deed dated 25.08.1999 executed by the court in favour of defendant No.1 at Ex.P1 & P24. The defendants 1 to 5 admit execution of Ex.P1 in their written statement therefore, this court can rely upon Ex.P1. Ex.P24 is a certified copy and issued by the competent authority hence, this court can rely upon Ex.P24. From the recitals of Ex.P24 i.e., Sale Deed, it discloses that Thimmarayappa, Maheshwarappa and Chandrapppa entered into an Agreement of Sale on 18.05.1981 in favour of defendant No.1, agreeing to sell property bearing Sy.No.69/2A, measuring 3 acres 10 guntas for sale consideration of Rs.3,00,000/- and after the death of Thimmarayappa, Maheshwarappa and Chandrapppa, Judgment 29 O.S.No.1428/2008 their legal heirs namely, T.Hanumantharaya and others entered into Agreement of Sale with defendant No.1 and received additional consideration and on account of dispute between the parties, defendant No.1 filed CMP.No.16/1998 before the Hon'ble High Court of Karnataka and Hon'ble High Court of Karnataka was pleased to appoint Arbitrator and said Arbitrator passed the award in favour of defendant No.1 and execution petition was filed by defendant No.1 to execute the said award and as per orders of the court in Ex.No.568/1999, Ex.P24 i.e., Sale Deed was executed in favour of defendant No.1 in respect of 2 acres 20 guntas and defendant No.1 acquired title over the same. From Ex.P1, it reveals that defendant No.1 was in need of money to get the Sale Deed executed in his favour from his vendor and agreed to sell "A" schedule property in favour of plaintiff for sale consideration at the rate of of Rs.711/- per square feet and the plaintiff agreed to purchase the same for the said consideration and Rs.13,00,000/- was paid by plaintiff to defendant No.1 under Ex.P1 and on 24.10.1999 another sum of Rs.27,00,000/- was paid to defendant No.1. It is pertinent to note that, defendants 1 to 5 in their written statement admit receipt of above said Rs.40,00,000/- under Memorandum of Understanding. There is no dispute regarding receipt of Rs.40,00,000/- by defendant No.1 under Ex.P1. The plaintiff contends that the amount paid under Judgment 30 O.S.No.1428/2008 MOU was utilized by defendant No.1 to pay the sale consideration to his vendors and get the Sale Deed executed in his name. Per contra, defendants 1 to 5 have contended that amount received under MOU was not utilized to pay the vendors to get the Sale Deed executed in the name of defendant No.1. It is pertinent to note that, Ex.P1 i.e., MOU has come into existence prior to execution of Sale Deed i.e., Ex.P24. In the MOU, it is specifically mentioned that defendant No.1 was in need of money to get the Sale Deed from his vendors and therefore, he intended to sell portion of the property to the plaintiff. There is no reason to disbelieve the above said recital in the MOU. The defendants 1 to 5 have not produced any material evidence before this court to show that defendant No.1 had sufficient funds / money with him to pay his vendors and get the Sale Deed executed in his favour. Therefore, contention of the plaintiff that amount paid under MOU was utilized by defendant No.1 to get the Sale Deed executed in his favour has to be accepted. Ex.P24 i.e., Sale Deed is not set aside by any competent court. Therefore, as per Ex.P24 defendant No.1 is the owner of the above said property.
12. Further, PW-1 has stated that defendant No.1 did not pay the betterment charges as per MOU and also suppressed existence of a road in the middle of the land. In view of the same, Judgment 31 O.S.No.1428/2008 plaintiff and defendant No.1 re-negotiated and entered into an Agreement of Sale on 12.10.2002 and as per the said Agreement of Sale, after deducting the area of the road from "A" schedule property, the extent that was available was 54,400 square feet and the road was earmarked in the middle of the land by the BDA and therefore, the property agreed to be sold was bifurcated into two units i.e., one portion measuring 250 x 160 feet which is Item No.1 of "B" schedule property and another portion measuring 180 x 80 feet, which is Item No.2 of "B" schedule property and sale consideration was fixed at Rs.750/- per square feet. Further, PW-1 has stated that defendant No.1 agreed to sell "B" schedule property either in the name of the plaintiff or his nominees in small bits or as per the sketch enclosed to the agreement. Advocate for the defendants 2 to 5 argued that suit schedule properties are not properly described and site numbers mentioned in the schedule are not assigned by any authority therefore, identification of suit schedule property cannot be made out. It is pertinent to note that, the defendants 1 to 5 in their written statement admit that property was notified by the Government and it was de-notified. It is also pertinent to note that, the defendants 1 to 5 admit formation of road in the middle of the land and reduction of extent of land to 54,400 square feet. The defendants 1 to 5 in their written statement admit execution Judgment 32 O.S.No.1428/2008 of Agreement of Sale in favour of the plaintiff. Further, the defendants 1 to 5 in their written statement admit that consideration was fixed at Rs.750/- per square feet. Further, the defendants 1 to 5 in their written statement admit that defendant No.1 had agreed to sell the property in the name of the plaintiff or his nominees. The defendants 1 to 5 have denied that defendant No.1 agreed to sell the land in small bits as false. Ex.P2 i.e., Agreement of Sale is admitted by defendants 1 to 5 therefore, this court can rely upon the recitals of Ex.P2. From the recitals of Ex.P2, it clearly goes to show that parties came to know that there is a road in existence in the middle of the land hence, the parties re-negotiated and total extent of land was reduced to 54,400 square feet and in two bits and each bit measuring 250 x 160 feet and 180 x 80 feet. Further, in the Agreement of Sale it is specifically mentioned that as per sketch annexed to the Agreement of Sale, both parties have agreed to sell and purchase the property. From the sketch i.e., Ex.P3, it reveals that both the parties have divided the land into two bits and further into sites and also allotted site numbers and fixed the measurements and boundaries. The sketch enclosed along with Agreement of Sale is crystal clear to identify the properties. From the sketch, it clearly goes to show that the parties intended to sell and purchase the property in bits / sites. It is not the case of defendants 1 to 5 that Judgment 33 O.S.No.1428/2008 the suit schedule property is unidentifiable. Both parties have lead their evidence after knowing the suit schedule property. Therefore, above arguments of defendants' counsel cannot be accepted.
13. Further, PW-1 has stated that as per Agreement of Sale defendant No.1 had agreed to register "B" schedule property as described in the Agreement of Sale and he has paid Rs.31,00,000/- under the said Agreement of Sale and in total, he has paid Rs.71,00,000/- to defendant No.1. The defendants 1 to 5 in their written statement admit that defendant No.1 agreed to register the property in three phases as per Agreement of Sale. The defendants 1 to 5 in their written statement admit receipt of Rs.31,00,000/- under the Agreement of Sale and also receipt of total amount of Rs.71,00,000/-. There is no dispute between the parties with respect to above said contention.
14. PW-1 in his evidence has stated that defendant No.1 executed two Sale Deeds in respect of two plots measuring 1,200 square feet each on 19.04.2003 in Item No.2 of "B" schedule property in favour of plaintiff's nominee. Further, PW-1 has stated that on 18.03.2004 defendant No.1 executed three Sale Deeds in respect of Item No.1 of "B" schedule property in the name of plaintiff's nominees and in total, defendant No.1 has executed five Judgment 34 O.S.No.1428/2008 Sale Deeds, to an extent of 16,800 square feet. The defendants 1 to 5 in their written statement admit execution of above said five Sale Deeds i.e., Ex.P25 to P29 in the name of plaintiff's nominees. There is no dispute regarding execution of Sale Deeds i.e., Ex.P25 to P29 and payment of consideration amount in respect of said Sale Deeds.
15. PW-1 in his examination-in-chief has stated that suit schedule property is the self-acquired property of defendant No.1 and defendants 2 & 3 have signed the Agreement of Sale as consenting witnesses and defendant No.1 had agreed to secure the signatures of his wife and signature to the Sale Deed as consenting witnesses. It is pertinent to note that, defendants 1 to 5 in their written statement have not denied plaintiff's contention that suit schedule property is the self-acquired property of defendant No.1. DW-1 in his cross-examination has stated that by selling house situated at Vijayanagar the suit schedule property was purchased. Per contra, the defendants 1 to 5 have not produced any documentary evidence to show that house was sold and amount was raised to purchase the suit schedule property. More over, there is no pleading in the written statement to the effect that house was sold to raise the amount to purchase the suit schedule property. Therefore, evidence of DW-1 cannot be Judgment 35 O.S.No.1428/2008 relied upon and contention of the plaintiff that suit schedule property is the self-acquired property of defendant No.1 has to be accepted. It is pertinent to note that, DW-1 in his cross- examination admits that defendants 2 & 3 have signed Agreement of Sale i.e., Ex.P2 as consenting witnesses. From the recitals of Ex.P2, it clearly goes to show that even though wife and children of defendant No.1 have no right over the suit schedule property but, still they are joined as consenting witnesses to the said Agreement of Sale. Further, PW-1 has stated that as per Clause 6(a) of the Agreement of Sale, defendant No.1 requested the plaintiff to pay a sum of Rs.20,00,000/- and accordingly, he paid an amount of Rs.20,00,000/- to defendant No.1 on 14.11.2002. Further, PW-1 has stated that as per Agreement of Sale he paid Rs.31,00,000/- to defendant No.1 and under Memorandum of Understanding he paid Rs.40,00,000/- to defendant No.1 and totally, he paid Rs.91,00,000/- to defendant No.1. Further, PW-1 has stated both the parties had agreed that sum of Rs.31,00,000/- paid under Agreement of Sale will be adjusted as against the sale consideration of second phase of registration as per Clause 6(b) and a sum of Rs.40,00,000/- paid will be adjusted towards third phase of registration as per Clause 6(c). The defendants 1 to 5 in their written statement admit receipt of Rs.31,00,000/- under Agreement of Sale and Judgment 36 O.S.No.1428/2008 Rs.40,00,000/- under Memorandum of Understanding and Rs.20,00,000/- on 14.11.2002. The defendants 1 to 5 have contended that the plaintiff has not paid the amount as per Clause 6(a) of the Agreement of Sale and he has paid the amount with delay and denied plaint averment that Rs.31,00,000/- paid will be adjusted as against the sale consideration of second phase of registration as per Clause 6(b) and a sum of Rs.40,00,000/- paid will be adjusted towards third phase of registration as per Clause 6(c). It is pertinent to note that, there is no dispute regarding payment of Rs.91,00,000/- by plaintiff to defendant No.1. As per Ex.P2 i.e., Agreement of Sale, Clause 6(a) stipulates that first phase of sale i.e., 7200 square feet has to be registered on or before 30.10.2002 within time the purchaser has to complete formation of road between "A" and "B" schedule land. In the present case, defendant No.1 and plaintiff admit that Rs.20,00,000/- against Clause 6(a) of the Agreement was paid on 14.11.2002. It is pertinent to note that, defendant No.1 has accepted the amount paid by the plaintiff and thereby, has waived the condition laid down in Clause 6(a) of Agreement of Sale. From the recitals of Agreement of Sale i.e., in page 6 it is specifically stated that Rs.31,00,000/- paid shall be adjusted towards payment of sale consideration of second phase and Rs.40,00,000/- paid shall be adjusted towards sale consideration Judgment 37 O.S.No.1428/2008 payable as per Clause 6(c) of the Agreement. Therefore, the documentary evidence prevails over oral evidence of DW-1 hence, above contention of the plaintiff has to be accepted.
16. PW-1 in his evidence has stated that defendant No.1 executed two Sale Deeds in respect of two plots measuring 1,200 square feet each on 19.04.2003 in Item No.2 of "B" schedule property in favour of plaintiff's nominee and a sum of Rs.14,80,000/- was paid to defendant No.1. Further, has stated that total amount paid as on 19.04.2003 to defendant No.1 was Rs.1,05,80,000/- and said amount paid on the said date is much more than the agreed sale consideration payable for first phase. The parties had agreed that excess paid will be adjusted in subsequent registration. Further, PW-1 has stated that at the request of defendant No.1 further a sum of Rs.5,00,000/- by cheque and sum of Rs.20,00,000/- by cash was paid to defendant No.1 and defendant No.1 has endorsed the same on Agreement of Sale on 17.03.2004. On 18.03.2004, three Sale Deeds in respect of Item No.1 of "B" schedule property was executed by defendant No.1 in favour of plaintiff' nominees. As per the said three Sale Deeds, total 14,400 square feet land was sold under the said Sale Deeds and defendant No.1 has failed to execute the Sale Deed in respect of area as per Clause 6(b) of the Agreement and Judgment 38 O.S.No.1428/2008 defendant No.1 is holding excess amount of Rs.47,80,000/-. DW-1 in his cross-examination admits that totally 16,800 square feet is sold to the plaintiff / his nominees. It is an undisputed fact that sale consideration is Rs.750/- per square feet. Therefore, for 16,800 square feet the total sale consideration will be Rs.1,26,00,000/-. In Ex.P2 i.e., Agreement of Sale, as per endorsement dated 18.03.2004 the total amount paid by plaintiff to defendant No.1 as on 18.03.2004 is Rs.1,73,80,000/-. Therefore, after deducting sale consideration of Sale Deeds from the total amount paid, the balance amount of Rs.47,80,000/- is with defendant No.1. Therefore, contention of the plaintiff that excess amount of Rs.47,80,000/- is with defendant No.1 has to be accepted.
17. PW-1 in his evidence has stated that ever after executing five Sale Deeds, defendant No.1 failed to pay betterment charges and at the same time, plaintiff came to know that there are litigations pending in respect of suit schedule property initiated by one Veeranna and Srinivasaiah in O.S.No.593/2000 and O.S.No.6302/1995 and said fact was suppressed by defendant No.1 at the time of executing the documents. Further, the plaintiff requested defendant No.1 to get disputes resolved with the aforesaid persons but, defendant No.1 Judgment 39 O.S.No.1428/2008 could not resolve the same and requested the plaintiff to negotiate with Veeranna and Srinivasaiah and settle the dispute at the cost of defendant No.1. Accordingly, the plaintiff held several negotiations with the said persons and ultimately, resolved the dispute with them by incurring an expense of Rs.51,00,000/- and the same amount is liable to be paid by defendant No.1 to the plaintiff. It is pertinent to note that, defendants 1 to 5 in their written statement admit litigations in O.S.No.593/2000 and O.S.No.6302/1995. Pendency of the above said cases is not in dispute. In the cross-examination of PW-1, advocate for defendants 1 to 5 has suggested that both the cases were closed prior to 2003. From the said suggestion, it goes to show that from 1995 till 2003 the above said cases were pending in respect of the suit schedule property. Hence, the contention of the plaintiff that litigations were pending in respect of the suit schedule property has to be accepted. The plaintiff has contended that he has spent Rs.51,00,000/- for compromising the above cases and he has paid the said amount to above said persons. The plaintiff has not produced any documentary evidence before this court to show that he has spent Rs.51,00,000/- towards settlement of the above said cases. In the absence of any documentary evidence, the contention of the plaintiff that he has spent Rs.51,00,000/- cannot be accepted. Hence, contention of Judgment 40 O.S.No.1428/2008 the plaintiff that he has spent Rs.51,00,000/- towards compromising the above said cases cannot be accepted.
18. PW-1 in his examination-in-chief has stated that out of total area of 54,400 square feet, defendant No.1 has sold 16,800 square feet in favour of plaintiff's nominees vide., Ex.P25 to P29 and defendants 1 to 5 are liable to alienate and execute registered Sale Deed in respect of balance area of 37,600 square feet. The sale consideration amount for the balance area i.e., 37,600 square feet will be Rs.2,82,00,000/- and plaintiff has deposited Rs.1,83,20,000/- before this court and also ready to pay Rs.51,00,000/- if court comes to the conclusion that Rs.51,00,000/- paid by plaintiff is not accountable by defendant No.1. The plaintiff was ready and willing to perform his part of the contract from the inception and has paid consideration over and above the terms agreed under the Sale Agreement. The defendant No.1 has failed to pay betterment charges as per the Sale Agreement and has violated the terms of the Sale Agreement. The plaintiff had issued legal notice on 03.12.2007 to defendants 1 to 3, calling upon them to receive the balance sale consideration and execute Sale Deed. But, defendant No.1 has issued untenable reply and plaintiff has issued rejoinder to the said reply on 18.01.2008. Hence, defendants 2 to 5 may be Judgment 41 O.S.No.1428/2008 directed to execute and register Sale Deed in respect of balance area i.e., 37,600 square feet in favour of plaintiff or his nominees. Advocate for defendants 1 to 5 argued that plaintiff was not ready and willing to perform his part of the contract and the plaintiff has no financial capacity to pay the balance sale consideration and bear the registration costs and relied upon Ex.D1. Admittedly, "readiness" connotes financial capacity of the party who seeks to enforce specific performance and "willingness" refers to plaintiff's personal or mental inclination to seek performance of the contract.
In (2019) 3 Supreme Court Cases 704, in the case of Kamal Kumar v. Premlata Joshi and others, wherein the lordships have held that:
"Contract and Specific Relief - Specific Relief Act, 1963 - Ss.10, 16 and 20 to 23 - Specific performance of contract - Grant of -
Prerequisites to be examined by courts, summarised - Necessity of these essentialities to be pleaded and proved by respective parties, especially readiness and willingness of plaintiff.
- Held, specific relief being discretionary remedy, material questions looked into are: (i)existence of valid concluded contract; (ii)readiness and willingness of plaintiff to perform his part of Judgment 42 O.S.No.1428/2008 contract; (iii) plaintiff performing his part of contract and its extent and manner, and whether such performance is in consonance with terms of contract; (iv) whether it is equitable to grant relief of specific performance regarding suit property or it causes any hardship to defendant, and if yes, how and in what manner such relief can be granted; and (v) entitlement of plaintiff to any other alternative remedy such as refund or earnest money with interest, etc. and on what grounds such relief can be granted - Parties must properly plead and move their respective stand - Once parties plead and prove their respective case, court can exercise its discretionary power."
In the present case, PW-1 in his evidence has categorically stated that he is owning petrol bunk and also running educational institutions and also doing real estate business and his income from 1999 to 2003 was approximately Rs.80,00,000/- per year and he is an income tax assessee. It is also pertinent to note that, the plaintiff has deposited Rs.1,83,20,000/- before this court towards sale consideration. The plaintiff also has stated that he is ready and willing to pay Rs.51,00,000/- also if at all, the court comes to the conclusion that said amount is not accountable by defendant No.1. The conduct of plaintiff in depositing the amount before this court goes to show that plaintiff is financially capable of performing his part of the contract. The defendants 1 to 5 have Judgment 43 O.S.No.1428/2008 produced paper publication issued by Janatha Seva Co-opearative Bank Ltd., to show that plaintiff has defaulted in repaying the loan amounts to the said bank. It is pertinent to note that, in the present case the sale consideration is deposited by the plaintiff before this court therefore, said paper publication is not much helpful to the defendants 1 to 5. Hence, argument of counsel for defendants 1 to 5 that plaintiff has no financial capacity cannot be accepted. Further, PW-1 in his evidence has categorically stated that from the beginning he is ready and willing to perform his part of the contract but, defendant No.1 failed to pay the betterment charges as per Agreement of Sale therefore, defendant No.1 has violated the terms of Agreement of Sale. In support of the said contention, the plaintiff has produced legal notice dated 13.12.2007 at Ex.P5. From the said legal notice, it clearly goes to show that the plaintiff had called upon defendant No.1 to receive balance sale consideration and execute Sale Deed in respect of balance area. Said legal notice corroborates plaintiff's contention that he was ready and willing to perform his part of the contract. Advocate for defendants 1 to 5 argued that there was no bar for the plaintiff to pay the betterment charges and deduct the same from the sale consideration amount and register the Sale Deeds. It is pertinent to note that the defendants 1 to 5 have not issued any notice calling upon the plaintiff to pay Judgment 44 O.S.No.1428/2008 the betterment charges and deduct the same from sale consideration and register the Sale Deed. There is no recital in the Agreement of Sale to the effect that in case defendant No.1 fails to pay the betterment charges, the plaintiff has to pay the same. It is pertinent to note that, in Ex.P2 i.e., Agreement of Sale at clause 8 it is stated that the purchaser may pay the entire sale consideration due on each phase as specified in clause 6 and reserve liberty to get the same registered at a later stage. It is pertinent to note that, as per clause 8 it is not mandatory on the part of the plaintiff to pay entire sale consideration and get the Sale Deed registered at a later stage. Therefore, the above arguments of counsel for defendants 1 to 5 falls to ground. Admittedly, defendant No.1 has failed to pay the betterment charges as stipulated in Ex.P2. The defendants 1 to 5 in their written statement have pleaded that BDA was not receiving the betterment at the relevant point of time. No documentary evidence is produced by the defendants 1 to 5 to substantiate the said claim. Therefore, above pleadings of defendants 1 to 5 cannot be accepted. The plaintiff has produced sufficient material before this court to prove his ready and willingness to perform his part of the contract.
Judgment 45 O.S.No.1428/2008
19. The defendants 1 to 5 in their written statement have pleaded that defendant No.1 has issued notice cancelling the Agreement of Sale executed in favour of the plaintiff. Per contra, the defendants 1 to 5 have not produced any documentary evidence before this court to show that defendant No.1 cancelled the Agreement of Sale. Therefore, above pleading of the defendants 1 to 5 without proof cannot be accepted. Hence, contention of the defendants 1 to 5 that Agreement of Sale was cancelled by defendant No.1 falls to ground.
20. The defendants 1 to 5 in their written statement pleaded that time is the essence of contract. Advocate for defendants 1 to 5 argued that time is essence of contract and plaintiff has failed to perform his part of the contract within stipulated time.
In (2008) 4 Supreme Court Cases 464, in the case of Balasaheb Dayandeo Naik (dead) through LRs and others v. Appsaheb Dattatraya Pawar, wherein the lordships have held that:
"Contract Act, 1872 - S.55 - Time whether essence of the contract - Sale of immovable property - General presumption according to Constitution Bench decision in Chand Rani Case, (1993) 1 SCC 519 that time is not the essence Judgment 46 O.S.No.1428/2008 unless contrary intention is expressed in unequivocal language - Agreement to Sell land providing for execution of sale deed "within 6 months from today and possession of the land is to be handed over at the time of sale deed" -
Another clause in the agreement providing that if seller failed to execute sale deed, purchaser could "get it executed on the basis of this agreement" - If purchaser failed, the "agreement is supposed to be cancelled and the earnest amount will be forfeited" - Inference drawn from these provisions, particularly from the clause which provided for forfeiture of earnest money, that time was not the essence - Held, purchaser entitled to enforce specific performance - Plea of seller rejected that time was of the essence as he sold land under dire need to construct his house but purchaser evaded to complete sale within six months - Seller did not prove his plea on oath - On the contrary, purchaser found ready and willing to perform his part of the deal - Purchaser therefore directed to deposit balance amount and seller directed to execute sale deed - Specific Relief Act, 1963 - Ss.10, Expln. (i) and 12 - Evidence Act, 1872, Ss.101 and 103."
It is settled proposition of law that time is not the essence of the contract unless contrary intention is expressed in unequivocal language. In the present case, clause 6(a) (b) & (c) of the Judgment 47 O.S.No.1428/2008 Agreement stipulates the time period within which the contract has to be performed. As per clause 6(a), 7200 square feet has to be registered on or before 30.10.2002, within which time the purchaser has to complete formation of road between "A" & "B" schedule land. As per clause 6(b) second phase: 50% of the remaining land has to be registered within three months after payment of betterment charges of the sites sold in first phase and after completion of road by the vendor. As per clause 6(c), remaining portion of the land has to be registered within three months from the date of payment of betterment charges of sites sold in second phase and the entire process has to be completed within 6 months from 30.10.2002. It is pertinent to note that, in the present case, though for the first phase the time limit is fixed as 30.10.2002 but, defendant No.1 has accepted part of the sale consideration even after 30.10.2002 and executed Sale Deeds as per Ex.P25 to P29. The above conduct of defendant No.1 goes to show that time is not the essence of contract. Further, as per clause 6(b) & (c), time will start after payment of betterment charges by defendant No.1 and admittedly, defendant No.1 has not paid the betterment charges. Hence, time is not the essence of contract. Therefore, contention of the defendants 1 to 5 falls to ground.
Judgment 48 O.S.No.1428/2008
21. The defendants 1 to 5 have contended that suit is barred by limitation. Advocate for the defendants 1 to 5 argued that on 21.08.1998 the Government had withdrawn 4(1) Notification and the acquisition proceedings were dropped and from 21.08.1998 till 03.04.2006 i.e., date on which de-notification order was withdrawn, the suit schedule property was free for registration but, the plaintiff has failed to get the Sale Deeds registered in his favour. Further, argued that as per Limitation Act, once the limitation starts it will not stop and suit is barred by limitation. Advocate for the plaintiff argued that there were litigations over the suit schedule property and the Government had once again withdrawn the de-notification order and said order was recalled therefore, the period of limitation started after withdrawal of de-notification order was withdrawn as per Ex.P31 i.e., on 16.08.2007 and this suit is filed within the period of limitation.
In (2005) 12 Supreme Court Cases 764, in the case of S.Brahmanand and others v. K.R.Muthugopal (dead) and others, wherein the lordships have held as under:
"A. Limitation Act, 1963 - Art.54 and S.3 - Fixed date for specific performance of contract - Extension of, by conduct of parties - Agreement for sale of property - Landlord undertaking to execute and get registered the sale deed after Judgment 49 O.S.No.1428/2008 vacation of prohibitory interim order in the pending suits filed by a third party T - Eviction decree against tenant pending execution at that time - T's suits dismissed but status-quo order continuing for further two weeks - During the said two weeks' period, landlord delivering possession to purchaser but by a letter suggesting to him that although the suit filed by T who had been put up by the unsuccessful tenants had been dismissed since the said tenants had filed a petition to get injunction till the filing of appeal, it was advisable to await the result of that petition before getting the sale deed registered - Purchaser, consequently, not insisting on performance forthwith - Subsequently, landlord suddenly selling the property to the said tenants and forcibly dispossessing the purchaser - Purchaser then filing suit for specific performance impleading the tenants as well - In such circumstances, the fixed date for performance which was initially covered by first part of Art.54 of the Limitation Act, held, stood varied by the letter of the landlord and thenceforth fell under second part of Art.54 - Hence, counting from the date of forcible dispossession of the purchaser by the landlord the purchaser's suit, held, was within limitation and not liable to dismissal under S.3, Limitation Act - In view of dishonest defence raised by the landlord and collusion of the tenants with him, costs imposed on the landlord in a sum Judgment 50 O.S.No.1428/2008 of Rs.50,000 and on the tenants also in an identical sum - Contract Act, 1872 - S.63 - Extension of time for performance - Permissibility and manner of proof of - Held, permissible and may be proved by oral evidence or evidence of conduct of parties - Specific Relief Act, 1963, S.16
- Constitution of India - Art.136 - Costs - Penal / Exemplary costs - Imposed in the peculiar circumstances of the case."
In (2006) 3 Supreme Court Cases 634, in the case of Gunwantbhai Mulchand Shah and others v. Anton Elis Farel and others, wherein the lordships have held that:
"B. Limitation Act, 1963 - Art.54 -
Applicability - Two Limbs of - Enquiries to be made by court - Case in which no date fixed for performance of contract - Held, in such case court has to find the date on which plaintiff had notice that performance was refused - Specific Relief Act, 1963 - S.10."
22. In Ex.P2 i.e., Agreement of Sale, Clauses 5, 6(a), (b) &
(c) and 7 reads as follows:
"5. It is mutually agreed between the parties that, after registration of each site to the Purchaser and/or his nominee, the Vendor has to pay the betterment charges for the said site to Bangalore City Corporation from out of the sale consideration received by him.
Judgment 51 O.S.No.1428/2008
6. The parties mutually agree that, the Purchaser shall get the entire extent of 54400 Sft land registered in his name or his nominees name in three phases as under:
(a) 1st Phase: 7200 Sft has to be registered on or before 30.10.2002, within which time, the Purchaser has to complete formation of road between A and B schedule land.
(b) 2nd Phase: 50% of the remaining land has to be registered within three months after payment of the betterment charges of sites sold in First Phase and also after completing the formation of the road which portion is marked in green colour and denoted as 'EDIJ', in the annexed sketch, by the Vendor as agreed above.
(c) 3rd Phase: Remaining portion of the land has to be registered within three months from the date of payment of betterment charges of sites sold in Second Phase.
The parties mutually agree that, they co-operate with each other to complete the entire process as above within six months from 30.10.2002.
The Purchaser has this day a sum of Rupees Thirty one Lakhs (Rs.31,00,000/- ) only by cheque bearing No.293465, Dt:12.10.2002, drawn on Andhra Bank, Cooke Town, Bangalore, drawn in favour of the Vendor, as further advance to the Vendor and the Vendor confirm the receipt of total advance sale consideration of Rupees Seventy one Lakhs (Rs.71,00,000/- which is inclusive of Rs.40 Judgment 52 O.S.No.1428/2008 Lakhs paid in terms of MOU Dt:9.4.1999). However, it is made clear that, the amount of Rs.31 Lakhs paid this day shall be adjusted towards the payment of sale consideration of II Phase of registration of sites as per Clause 6(a) of this agreement and the advance sale consideration of Rs.40 Lakhs paid under the MOU shall be adjusted towards the sale consideration payable as per clause 6(c) of this agreement.
7. It is mutually agreed that, in the event of there being any litigation on the Schedule A and B properties either by Government authorities or any private parties, which come in the way of completion of transaction, then the time stipulated herein shall get automatically extended, until the said litigations are settled completely."
From the above said clauses, the intention of the parties can be gathered and it reveals that, after payment of betterment charges by defendant No.1, registration of sites could be made as per clause 6(b) & (c). Further, from clause 7, it reveals that in the event of any litigation either by Government Authorities or any private parties in respect of the suit schedule property, which come in the way of completion of the transaction, then the time stipulated herein shall be automatically extended until said litigations are settled completely. In other words, the time limit fixed under clause 6(a) to (c) will get extended if there are any Judgment 53 O.S.No.1428/2008 litigations in respect of the suit schedule property. It is pertinent to note that, defendant No.1 admits that O.S.No.593/2000 and O.S.No.6302/1995 were pending before the court in respect of the suit schedule property. Advocate for the defendants 1 to 5 has suggested that till 2003 the cases were pending. Therefore, it can be inferred that at the time of Agreement of Sale O.S.No.6302/1995 was pending and it was disposed of in the year 2003. Therefore, till 2003, the period of limitation will not commence. It is pertinent to note that, on 19.04.2003 & 18.03.2004, five Sale Deeds were executed in favour of plaintiff's nominees and as per clause 6(b) defendant No.1 is liable to pay betterment charges of land measuring 7200 square feet in order to register Sale Deeds as per clause 6(b) and similarly, betterment charges of 50% of the land has to be paid by defendant No.1 in order to register Sale Deeds as per clause 6(c). But, defendant No.1 has failed to pay the said betterment charges as stipulated under clause 6(a) to (c). More over, in Ex.P45 defendant No.1 has categorically admitted that on account of civil litigations he could not develop the property. Therefore, till 2004 the period of limitation will not commence. Further, it is pertinent to note that, as per Ex.P44 i.e., show-cause notice dated 26.04.2004 issued by Government to defendant No.1 to withdraw the de-notification order and as per Ex.P40, de-notification order Judgment 54 O.S.No.1428/2008 was withdrawn. From Ex.P40 & P44, it goes to show that litigation was pending in respect of the suit schedule property. As per Ex.P30, (i.e., writ petition No.5406/2006 (LA-BDA)) de-notification withdrawal order was challenged. From Ex.P31, it reveals that on 16.08.2007 de-notification withdrawal order was withdrawn and litigation in respect of suit schedule property came to an end. From Ex.P40, P44, P30 & P31, it goes to show that there were litigations pending in respect of the suit schedule property till 2007 therefore, as per clause 7 of Agreement of Sale, the limitation gets automatically extended till 2007. Hence, present suit filed on 20.02.2008 is within time. Hence, contention of the defendants 1 to 5 that suit is barred by limitation cannot be accepted.
23. Advocate for the defendants 1 to 5 argued that the plaintiff has not valued the suit property properly and court fee paid is insufficient. As per plaintiff's claim, defendants 1 to 5 are liable to execute Sale Deed in respect of 37,600 square feet at the rate of Rs.750/- per square feet. The sale consideration for 37,600 square feet will be Rs.2,82,00,000/-. As per Section 40(a) of the Karnataka Court Fees and Suits Valuation Act, the plaintiff is liable to pay court fee of Rs.3,48,125/- on Rs.2,82,00,000/-. On consequential relief of declaration that gift deeds are not binding Judgment 55 O.S.No.1428/2008 on the plaintiff, the plaintiff has paid Rs.75/- as court fee. Admittedly, plaintiff is not a party to the said Gift deeds hence valuation made by the plaintiff is correct. The plaintiff has paid proper court fee therefore, above contention of defendants' counsel cannot be accepted.
24. Advocate for the defendants 1 to 5 argued that presently market value of the property is not less than Rs.15,000/- per square feet and on account of plaintiff's conduct the contract could not be performed and if the suit is decreed, the defendants 1 to 5 will suffer great hardship and loss. Therefore, the plaintiff is not entitle for relief of specific performance. In (2007) 10 Supreme Court Cases 231, in the case of P.S.Ranakrishna Reddy v. M.K.Bhagyalakshmi and another, wherein the lordships have held that:
"B. Specific Relief Act, 1963 - S.20 - Exercise of discretionary jurisdiction of court under - Agreement of sale of immovable property - Conduct of seller considered - Unwillingness to perform his part of the agreement in view of rise in price of the property - Held on facts, exercise of discretion in favour of seller not called for."
In (2004) 6 Supreme Court Cases 649, in the case of P.D'Souza v. Shondrilo Naidu, wherein the lordships have held that:
Judgment 56 O.S.No.1428/2008 "C. Specific Relief Act, 1963 - S.20(2)(a) & (b) r/w Explns. I & II - Hardship on defendant which he did not foresee - Agreement of sale of immovable property - Vendee seeking specific performance thereof - Escalation of prices - If ground for refusing specific performance - Held, clarifying Nirmala Anand case, (2002) 5 SCC 481, no law in absolute terms has been laid down by the Supreme Court that in all such cases, the court should either refuse to grant specific performance or direct the plaintiff to pay a higher sum - On facts, held, it was not a case where the defendant did not foresee the hardship."
The defendants 1 to 5 have not produced any documentary evidence before this court to show that market value of the suit schedule property is not less than Rs.15,000/- per square feet. In the present case, the plaintiff has made payments to defendant No.1 from time to time in respect of the suit schedule property and inspite of payments made by the plaintiff, defendant No.1 has failed to pay the betterment charges and get the Sale Deed registered in the name of the plaintiff. The above conduct of defendant No.1 goes to show that defendant No.1 is unwilling to perform his part of the contract. Rise in the price of immovable property cannot be a ground for refusal to enforce lawful Agreement of Sale. Therefore, the above arguments of counsel for defendants 1 to 5 cannot be accepted.
Judgment 57 O.S.No.1428/2008
25. PW-1 in his evidence has stated that defendant No.1 has executed Agreement of Sale in favour of the plaintiff and defendants 2 & 3 have signed the said Agreement of Sale as consenting witnesses and knowing fully well about Agreement of Sale and Sale Deeds defendant No.1 has executed Gift Deeds Ex.P.20 to P.23 in favour of defendants 2 to 5 to deprive plaintiff's claim and said Gift deeds are not binding on the plaintiff herein. From Ex.P2, it goes to show that defendants 2 & 3 have signed Agreement of Sale as consenting witnesses and from Ex.P25 to P29, it goes to show that the defendants 2 & 3 have signed the said Sale Deeds as consenting witnesses. From the above said documents, it goes to show that defendants 2 to 5 have knowledge of Agreement of Sale entered between defendant No.1 and plaintiff. Admittedly, Ex.P20 to P23 i.e., Gift Deeds have come into existence subsequent to said Agreement of Sale and it can be inferred that said documents are executed to deprive plaintiff's claim over the suit schedule property. Therefore, Gift Deeds i.e., Ex.P20 to P23 are liable to be set aside and they are not binding on the plaintiff.
Sl Balance Area to Rate Total
No. be registered consideration
1 37,600 square feet Rs.750/- per Rs.2,82,00,000/-
square feet
Judgment
58 O.S.No.1428/2008
As per the above table, the plaintiff is liable to pay
Rs.2,82,00,000/- for 37600 square feet. For 16,800 square feet the sale consideration will be Rs.1,26,00,000/- and admittedly, the plaintiff has paid Rs.1,73,80,000/- to defendant No.1. Therefore, Rs.47,80,000/- amount is paid in excess to defendant No.1. From out of Rs.2,82,00,000/-, Rs.47,80,000/- has to be deducted and remaining balance amount of Rs.2,34,20,000/- is liable to be paid by the plaintiff to defendants 2 to 5. The plaintiff has deposited Rs.1,83,20,000/- before this court. After deducting Rs.1,83,20,000/- from Rs.2,34,20,000/- the plaintiff is liable to pay Rs.51,00,000/- to defendants 2 to 5 excluding the interest earned on the fixed deposit of Rs.1,83,20,000/-. During the pendency of above suit, defendant No.1 died and defendants 2 to 5 are the wife of children of defendant No.1. The defendants 2 to 5 are the legal heirs of defendant No.1 hence, they are bound by the Agreement of Sale and jointly liable to execute Sale Deed in favour of the plaintiff. The citation reported in (2004) 7 SCC 251 relied upon by the defendants 2 to 5 is not applicable to the facts and circumstances of the case. The plaintiff has produced sufficient material evidence to prove his case. In the light of above discussion, I answer Issue Nos.1, 3, 6 & 7 in the Affirmative and Issue Nos.4 & 5 in the Negative.
Judgment 59 O.S.No.1428/2008
26. Issue No.2:-
The defendants 6 to 22 have contended that Thimmarayappa had purchased Sy.No.69/2 from joint family funds and said Thimmarayappa and his two sons executed GPA in favour of A.R.Guru Rao on 07.02.1972 and he entered into Agreement of Sale with Karnataka Urban Housing Co-operative Society, Bangalore. The said land was acquired by the Government, at that point of time, defendant No.1 obtained signatures of defendants 6 ot 22 on the blank papers and created the Agreement of Sale and got the arbitration award passed in his favour behind the defendants' back. The defendants 6 to 22 have filed suit in A.C.No.76/1999, questioning the said award and said A.C.No.76/1999 was dismissed and defendants 6 to 22 have filed MFA.No.2962/2016 before the Hon'ble High Court of Karnataka and said MFA is still pending for consideration. The defendant No.1 is not the owner of the suit schedule property. The defendants 6 to 22 are the owners of the suit schedule property and defendant No.1 has no salable interest in the suit schedule property. It is pertinent to note that, as per Ex.P24, Sale Deed is executed in favour of defendant No.1. Said Sale Deed is not set aside till date. Therefore, the said Sale Deed has to be relied upon by this court. From the said Sale Deed, it reveals that defendant Judgment 60 O.S.No.1428/2008 No.1 is the owner of the suit schedule property and has salable interest in the suit schedule property. The defendants 6 to 22 have contended that by playing fraud Agreement of Sale and award was obtained by defendant No.1. The above suit is one for specific performance of contract therefore, issues regarding fraud etc., cannot be adjudicated in the present case. More over, MFA.No.2962/2016 is pending before the Hon'ble High Court of Karnataka therefore, this court cannot adjudicate the claim of defendants 6 to 22 in the present suit. The citations relied upon by counsel for defendants 6 to 22 in AIR 2002 Gujarat 209 & AIR 1941 PATNA 577, are not applicable to the facts and circumstances of the present case. In the light of above discussion, I answer Issue No.2 in the Negative.
27. Issue No.8:-
In view of my above discussion, I proceed to pass the following:
ORDER Suit of the plaintiff is decreed with costs.
The defendants 2 to 5 are hereby directed to jointly execute and register the Sale Deed in the name of plaintiff or his nominees in respect of "C" schedule property by accepting the balance sale consideration of Rs.2,34,20,000/- within 3 months Judgment 61 O.S.No.1428/2008 from the date of decree. The plaintiff has deposited Rs.1,83,20,000/- before this court. After deducting Rs.1,83,20,000/- from Rs.2,34,20,000/-, the plaintiff is liable to pay Rs.51,00,000/- to the defendants 2 to 5. The defendants 2 to 5 are entitle to receive the interest earned on fixed deposit of Rs.1,83,20,000/- also.
The plaintiff shall bear the stamp duty, registration fees and other expenses for registering the Sale Deed/s before the Sub-Registrar.
It is hereby declared that Gift Deed dated 13.05.2004 executed by defendant No.1 in favour of defendant No.2 Smt.Shanthamma, registered as Document No.RJN-1-00818-2004- 05, stored in CD No.RJND 40 dated 13.05.2004, registered in the Office of the Sub-Registrar, Rajajinagar, Bangalore-10; Gift Deed dated 13.05.2004 executed by defendant No.1 in favour of defendant No.3 Shri.B.K.Srinivasa, registered as Document No.RJN-1-00816-2004-05, stored in CD No.RJND 40 dated 13.05.2004, registered in the Office of the Sub-Registrar, Rajajinagar, Bangalore-10; Gift Deed dated 13.05.2004 executed by defendant No.1 in favour of defendant No.4 Smt.Sumithra, registered as Document No.RJN-1-00817-2004-05, stored in CD No.RJND 40 dated 13.05.2004, registered in the Office of the Sub- Registrar, Rajajinagar, Bangalore-10 and Gift Deed dated Judgment 62 O.S.No.1428/2008 13.05.2004 executed by defendant No.1 in favour of defendant No.5 Smt.Bharathi, registered as Document No.RJN-1-00819- 2004-05, stored in CD No.RJND 40 dated 13.05.2004, registered in the Office of the Sub-Registrar, Rajajinagar, Bangalore-10, are null and void and not binding on the plaintiff.
Draw decree accordingly.
(Dictated to the Judgement Writer, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, this the 29th day of January, 2020) (P.SRINIVASA) XLII Addl., City Civil & Sessions Judge, Bengaluru City.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side:
PW.1 - C.Gangadhara Murthy
(b) Defendants' side:
DW.1 - Dr.B.K.Srinivasa DW.2 - Sri.T.Hanumantharaya II. List of documents exhibited on behalf of:
(a) Plaintiff's side:
Ex.P1 : Indenture of Memorandum of
Understanding
Ex.P1(a) : Signature of defendant No.1
Judgment
63 O.S.No.1428/2008
Ex.P2 : Agreement of Sale dated 12.10.2002
Ex.P2(a) to (d) : Signature of defendant No.1 Ex.P3 : Sketch of suit schedule property Ex.P3(a) : Signature of defendant No.1 Ex.P4 : Registered General Power of Attorney dated 19.04.2003 Ex.P5 : Office Copy of Legal Notice dated 03.12.2007 Ex.P6 to 9 : Postal Receipts Ex.P10 to 12 : Postal Acknowledgements Ex.P13 : Returned RPAD cover Ex.P14 : Reply Notice dated 20.12.2007 Ex.P15 : Rejoinder to Reply Notice dated 18.01.2008 Ex.P16 : Postal Acknowledgement Ex.P17 : Postal Receipt Ex.P18 : Reply Notice dated 20.12.2007 Ex.P19 : Encumbrance Certificate Ex.P20 : Certified copy of Gift Deed in favour of Smt.Bharathidated 13.05.2004 Ex.P21 : Certified copy of Gift Deed in favour of Sri.B.K.Srinivasa dated 13.05.2004 Ex.P22 : Certified copy of Gift Deed in favour of Smt.Shanthamma dated 13.05.2004 Ex.P23 : Certified copy of Gift Deed in favour of Smt.Sumithra dated 13.05.2004 Ex.P24 : Certified copy of Sale Deed dated 25.08.1999 Ex.P25 : Certified copy of Sale Deed dated 19.04.2003 Ex.P26 : Certified copy of Sale Deed dated 19.04.2003 Ex.P27 : Certified copy of Sale Deed dated 18.03.2004 Judgment 64 O.S.No.1428/2008 Ex.P28 : Certified copy of Sale Deed dated 18.03.2004 Ex.P29 : Certified copy of Sale Deed dated 18.03.2004 Ex.P30 : Certified copy of Order passed by the Hon'ble High Court of Karnataka in W.P.No.5406/2006 (LA-BDA) Ex.P31 : Notification dated 16.08.2007 issued by Government of Karnataka Ex.P32 Sale Deed dated 06.11.2007 Ex.P33 : Paper Publication in The New Indian Express dated 29.01.2008 Ex.P34 : Paper publication in Kannada Prabha dated 29.01.2008 Ex.P35 : Statement of Account Ex.P36 : Khatha Certificate Ex.P37 : Khatha Extract Ex.P38 : RTI Application Ex.P39 : Letter dated 03.06.2019 Ex.P40 : Gazette Notification dated 05.04.2006 Ex.P41 : Gazette Notification dated 18.08.2007 Ex.P42 : Sketch Sanctioned Letter Ex.P43 : Sketch Ex.P44 : Show-cause Notice dated 26.04.2004 issued by Government of Karnataka Ex.P45 : Reply to Show-cause Notice
(b) Defendants' side:
Ex.D1 : Paper publication in Prajavani dated 19.07.2019 Ex.D1() to (c) : Relevant publications Ex.D2 : Certified copy of Appeal in Judgment 65 O.S.No.1428/2008 MFA.No.2962/2016 (AA) Ex.D3 : Certified copy of Order Sheet in MFA.No.2962/2016 (AA) Ex.D4 : Certified copy of Order Sheet in O.S.No.4354/1999 Ex.D5 : Certified copy of Amended Plaint in O.S.No.4354/1999 XLII ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU CITY.
Digitally signed by SRINIVASA DN: cn=SRINIVASA,ou=HI GH COURT OF
SRINIVASA KARNATAKA,o=GOVE RNMENT OF KARNATAKA,st=Karnat aka,c=IN Date: 2020.01.31 11:50:23 IST Judgment