Bangalore District Court
S. Murugesh vs Smt. Neelaveni on 21 July, 2015
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
Dated this the 21st day of July 2015.
PRESENT: S.V.KULKARNI, B.Com., LLB(Spl)
XI Addl.City Civil Judge, B'lore city.
O.S.No.3396/ 2008
C.C.H.8
PLAINTIFF: S. Murugesh,
S/o Late A.C. Sampath,
Aged about 39 years,
R/at No.27, 8th Cross,
Manjunathanagar,
Behind Prasanna Chitramandira,
Magadi Road,
Bengaluru-23.
(By Sri. Ramachandra.A, Advocate)
: Vs :
DEFENDANT/S: 1. Smt. Neelaveni,
W/o Late T. Krishnaiah Shetty,
Aged about 76 years
2. Shivamani,
S/o Late T. Krishnaiah Shetty,
Aged about 57 years
Since dead by his L.Rs.
a) Smt. Anusuya,
W/o 2nd defendant
Aged about 48 years
2 OS. No.3396/2008
b) S. Kamalesh,
S/o Late Shivamani,
Aged about 30 years
c) Smt. S. Banu,
D/o Late Shivamani,
Aged about 28 years
d) S. Omprakash,
S/o Late Shivamani,
Aged about 25 years
All are residing at No.14,
2nd Cross, Manjunatha Nagar,
Behind Prasanna Chitramandira,
Magadi Road,
Bengaluru-23.
(By N.R. Associates)
Date of the institution of suit: 28/05/2008
Nature of the suit: Specific performance
Date of the commencement of 29/08/2011
recording of the evidence:
Date on which the judgment 21/07/2015
was pronounced :
Total Duration Year/s Month/s Day/s
07 01 23
XI Addl.City Civil Judge,
B'lore city.
3 OS. No.3396/2008
JUDGMENT
This is the suit filed by the plaintiff against defendants seeking the relief of specific performance of contract in respect of sale agreements Ex.P.1 to P.4 marked in this case in respect of suit schedule property said to have been executed by defendant No.1 and deceased defendant No.2 in favour of plaintiff and as such, plaintiff has filed this suit for the relief of specific performance of contract in respect of sale agreement dated 23.11.2005, 28.5.2006, 26.11.2006 and sale agreement dated 19.5.2007 and prayed for other consequential reliefs.
2. The case of the plaintiff as stated in the plaint averments briefly stated as follows:-
The defendant No.1 and deceased defendant No.2 are the absolute owner of the suit schedule property as described in the schedule of this plaint bearing description of the property reads as under:-
SCHEDULE All the piece and parcel of the property bearing Old No.8, present Municipal Katha NO.98, 1st Cross, Cholurpalya, Kempapura Agrahara, Magadi Road, Bangalore -23 with 7 square building constructed with Cement sheet, measuring 4 OS. No.3396/2008 east-west 35 feet and north-south 30 feet and bounded as under:-
East by: Raja Kaluve;
West by: Property bearing Old No.9 belonging to Bhaskar and others property , North by: Property belonging to Shivamani bearing No.7 House property bearing Municiapl No.1 South by: Road.
It is the case of the plaintiff that defendant No.1 and deceased defendant No.2 being the absolute owners of the suit schedule property offered to sell the same in his favour, wherein plaintiff has accepted the offer and both the parties have agreed to sell the schedule property and plaintiff ready to purchase the same and after sale negotiations held between both the parties, wherein defendant No.1 and deceased defendant No.2 agreed to convey the schedule property in favour of plaintiff for a total consideration amount of Rs.13,10,000/- and accordingly, both the parties have executed sale agreement dated 23.11.2005 and on that day, plaintiff had paid advance amount of Rs.2-00 lakhs as part consideration amount and defendants received the said advance amount from the plaintiff and acknowledgment the receipt of the said amount in the agreement of sale executed 5 OS. No.3396/2008 by them and thereafter, defendants approached the plaintiff and expressed their financial need and received further advance amount of Rs.50,000/- and they undertake to get back the title deeds and obtaining the revenue documents and again defendants requested the plaintiff for extension of time and accordingly, they have received Rs.50,000/- further advance amount and executed 2nd agreement of sale dated 28.5.2006 and requested for a period of another 6 months and accordingly, plaintiff consented for the same and accordingly, defendants had executed one more agreement on 26.11.2006 for the period of 6 months, but defendants did not come forward to execute sale deed though plaintiff demanded them to execute sale deed by receiving balance sale consideration amount of Rs.10,10,000/-, but defendants finally undertake to for extension of time for 11 months and as such, defendants though received advance amount of Rs.3-00 lakhs so far and defendants lastly executed another sale agreement in favour of plaintiff on 19.5.2007 agreeing to execute the sale deed in favour of plaintiff by receiving balance sale consideration amount. The plaintiff further alleged that he was/is ready and willing to perform his part of contract as per the sale agreement executed by the defendants. Though plaintiff requested the defendants to execute sale deed, but defendants did not come forward to execute the sale deed and thereafter, plaintiff constrained to 6 OS. No.3396/2008 cause legal notice dated 14.12.2007 through his counsel and the said notice has been received by the defendants, but they have not come forward to execute the sale deed and they have issued untenable reply and postponed the execution of the sale deed in one or the other reasons and thereafter, defendants have replied the notice dated 4.1.2008 and again plaintiff finally got issued notice dated 19.4.2008 through his advocate to the defendants calling upon them to receive balance sale consideration amount and to execute the sale deed in respect of schedule property and put the plaintiff in possession of the same within one week from the date of receipt of notice, but defendants received the said notice on 21.4.2008, but they did not complied the demand made by the plaintiff in the legal notice. Hence, plaintiff alleging readiness and willingness to perform his part of contract and also stated that there is no breach of contract on the part of plaintiff and it is the defendants, who have committed breach of contract in respect of agreement of sale executed in favour of plaintiff and hence, plaintiff constrained to file the suit for specific performance of contract against defendants.
3. During pendency of suit, defendant No.2 died on 5.9.2009 leaving behind his L.Rs 2(a) to (d) and plaintiff has filed LRs application in order to implead the LRs of deceased defendant No.2 on record and accordingly, LRs application 7 OS. No.3396/2008 filed by the plaintiff came to be allowed and LR No.2(a) to (d) of deceased defendant No.2 are impleaded as per orders on I.A.No.2 filed by the plaintiff in this case. ,
4. Initially, defendant No.1 and 2 after receipt of suit summons appeared through counsel and filed combined written statement admitting their ownership over the suit schedule property as stated by the plaintiff and defendants also admitted that they are the absolute owners of the suit schedule property and during the year 2005, the defendants are interested to alienate the suit schedule property in favour of plaintiff and also they admitted the receipt of part consideration amount of Rs.2-00 lakhs and execution of sale agreement dated 23.11.2005 and they also admits that the agreed sale consideration amount under agreement of sale dated 23.11.2005 was for Rs.13,10,000/- and defendants contended in the agreement of sale dated 23.11.2005 it is clearly mentioned that if any unexpected problems arrives to the defendants to execute the registration of the sale deed in favour of plaintiff , then defendants have to pay double amount of the earnest money received by them with future interest and damages to the plaintiff and defendants further contended that tenant by name Sri.Bhaska, who was occupying the schedule property as a tenant in the month of February 2006 assured of vacating the schedule property in 8 OS. No.3396/2008 favour of defendants, but the said tenant had filed a suit in O.S. No.4126/2006 against defendants for permanent injunction relief not to interfere or forcibly vacated the tenanted property without following due process of law and the said suit filed by the tenant for injunction relief is still pending before CCH No.39 and defendants have produced order sheet copy of that suit along with the written statement and it is contended that after receipt of summons in O.S. No.4126/2006 , the defendants have filed suit for ejectment against the said tenant namely Sri.Bhaskar in O.S. No. 7776/2007 against the said tenant for eviction of the tenant from the schedule property and the said suit is also pending for consideration before CCH No.23 at Bangalore. Due to the above civil litigations pending in respect of suit schedule property between the defendants and the tenant in O.S. No.4126/2006 and suit for ejectment filed by the defendants, wherein defendants were not able to alienate the schedule property and to execute the sale deed in favour of plaintiff and as such, it is not sustainable in the eyes of law by the plaintiff to seek specific performance relief and in this regard, defendants have requested the plaintiff to receive back advance amount of Rs.3-00 lakhs along with interest and damages, but plaintiff never came forward to receive the advance amount of Rs.3-00 lakhs along with interest and damages. The defendants further contended that such being 9 OS. No.3396/2008 the facts of the case and when civil litigations are pending in respect of schedule property and plaintiff never come forward to receive the advance amount from the defendants and simultaneously issued legal notice to defendants on 14.12.2007 demanding for the registration of sale deed and immediately defendants have replied the said notice by reply notice dated 4.1.2008 expressing their inability to convey the sale deed in respect of schedule property in view of pending litigations filed by the tenant and also filed by the defendants for ejectment and even after receipt of reply notice dated 4.1.2008, plaintiff did not come forward to receive the advance amount with interest and damages from the defendants and again he caused legal notice through his counsel on 29.5.2008 again instigating the defendants to execute sale deed. The defendants further contended that after receipt of suit summons of this case, they have deposited advance amount of Rs.3-00 lakhs in Canara Bank, Bangalore on 30.6.2008 and obtained D.D in favour of Registrar of City Civil Court , Bangalore bearing No. 613375 dated 1.7.2008 . Hence, defendants contended that due to civil disputes arisen between defendants and the tenant in O.S. No.4126/2006 and they filed a suit for ejectment in evicting the tenant in O.S. No. 7776/2007, wherein defendants are unable to execute sale deed conveying the schedule property in favour of plaintiff and defendants are 10 OS. No.3396/2008 ready to refund the advance amount along with interest and damages to the plaintiff.
5. After demise of defendant No.2 on 5.9.2009, his LRs 2(a) to 2(d) have been substituted in this suit, wherein the LRs of deceased defendant No.2 namely LR of Defendant No.2 D.2(b) filed fresh written statement in this case on 26.6.2010 and the written statement filed by D.2(b) is adopted by D.2(a), (c) and (d) by filing memo in this case and on perusal of the written statement contentions filed by Lrs D.2(b) and
(c), wherein their contention is also one and the same as original deceased defendant No.2 had taken contentions in the written statement. Hence, D.2(a) to (d) also stated in view of pending litigation in O.S. No.4126/2006 filed by the tenant and also their suit filed for ejectment in O.S. No. 7776/2007, wherein defendants are unable to execute sale deed and they are ready to refund the earnest amount along with interest and damages. Hence, D.2(a) to (d) have also filed similar defense after their impleadment in this case and prays for dismissal of the suit and also prayed for passing of deemed orders and to grant relief in the facts and circumstances of the case.
11 OS. No.3396/20086. Based upon these pleadings, the following issues are framed for trial of the suit :-
1. Whether the plaintiff proves that he has always been ready and willing to perform his part of contract in terms of the agreement of sale dated 23-11-2005?
2. Whether the defendants prove that they are unable to execute the sale deed in terms of agreement of sale dated 23-11-2005 for the reasons stated in para 22 of written statement?
3. Whether the plaintiff is entitled for the relief of specific performance of contract?
4. What decree or order?
7. In order to prove their respective cases, parties have led evidence, wherein plaintiff himself is examined as PW.1 and got marked documents Ex.P.1 to P.18 and closed his side and thereafter, LRs of defendant No.2namely D.2(b) and 2(d) are examined respectively as D.W.1 and D.W.2 and in the evidence of D.W.2, Ex.D.1 to D.5 are came to be marked and with this evidence, defendants side evidence is closed and thereafter, the suit is posted for arguments.
8. Heard the arguments of learned counsel appearing for the plaintiff, wherein the counsel appearing for the defendants 12 OS. No.3396/2008 filed his written arguments in this case on 2.7.2015 and perused the contention raised in the written arguments filed on behalf of defendants and after hearing the arguments of both sides, the suit is posted for judgment.
9. On appreciation of the pleadings filed in this case, on appreciation of oral and documentary evidence placed on record that of P.W.1 and D.W.1 and D.W.2 and documentary evidence marked for the plaintiff from Ex.P.1 to P.18 and Ex.D.1 to D.5 for the defendants and considering the arguments canvassed by the learned counsel on record and after considering the provision of Specific Relief Act and after exercise of discretion under Sec. 20 of Specific Relief Act, I answer the above issues are as follows:-
Issue No.1: In the affirmative;
Issue No.2: In the affirmative;
Issue No.3: In the negative
Issue No.4: The suit filed by the plaintiff
deserves to be decreed partly
against defendants including
the costs of the suit for the
following reasons:-
13 OS. No.3396/2008
REASONS
10. Issue No.1 and 2: These issues are
interconnected to each other and evidence placed on record is common to discuss both these issues. Hence, issue No.1 and 2 are taken up for discussion and also the lis pending between the parties is very narrow and scope of the dispute is to the limited extent, wherein the defendants have admitted the execution of sale agreements Ex.P.1 to P.4 in favour of plaintiff and have specifically contended that in view of pending litigation in O.S. No.4126/2006 and O.S. No. 7776/2007 filed for ejectment of tenants which are pending now and hence, defendants expressed their inability to convey registered sale deed in favour of plaintiff by receiving balance sale consideration amount of Rs.10,10,000/- . Hence, with this rival contention, the parties to the suit have exchanged legal notices through their counsel prior to the institution of the suit and though defendants have replied the notice issued by the plaintiff dated 14.12.2007 by reply notice dated 4.1.2008 informing the plaintiff about the tenant did not vacated the schedule property. On the contrary, the tenant under the defendants filed suit for permanent injunction against defendants No.1 and 2 not to evict him from schedule property unless and until following due process of law and accordingly, defendants in their reply notice dated 4.1.2008 14 OS. No.3396/2008 expressed their inability to execute sale deed in favour of plaintiff and as per the terms of contract, wherein in case of any exigencies arisen, the partiers have agreed to receive the double amount of earnest amount paid and to receive interest and damages in order to get rid of their contractual obligation and in view of this clause contained in agreement of sale dated 23.11.2005, the defendants have resorted this condition as recited in the agreement of sale and sent reply to the defendants, but plaintiff again caused the legal notice to the defendants and filed this suit for specific performance relief by presenting the plaint against defendants seeking the relief of specific performance of contract on 28.5.2008.
11. The plaintiff in order to prove his case has made out in the plaint is examined himself as P.W.1 and deposed through affidavit evidence filed in lieu of examination-in-chief and P.W.1 got marked documents Ex.P.1 to P.18. The said documents marked through P.W.1 are reads as under:-
Ex.P.1 is Agreement of sale executed by defendants 1 and 2 dated 23/11/2005 in favour of plaintiff, Ex.P.2 is Agreement of sale dated 28/05/2006 executed by defendants, Ex.P.3 is Agreement of sale dated 26/11/06 executed by defendants, Ex.P.4 is Agreement of sale dated 19/05/2007 executed by defendants, Ex.P.5 is office copy of 15 OS. No.3396/2008 legal notice dated 14.2.2007 sent to defendant No.1 and 2, Ex.P.6 and 7 are postal receipts, Ex.P.8 and P.9 are two posta acknowledgments of defendant No.1 and 2 for having received legal notice, Ex.P.10 is reply notice of defendants dated 4.1.2008, Ex.P.11 is office copy of legal notice dated 19.4.2008, Ex.P.12 and P.13 are the two postal receipts, Ex.p.14 and P.15 are two postal acknowledgments, Ex.P.16 is certified copy of sale deed, Ex.P.17 is encumbrance certificate issued by Sub Registrar dated 10.4.2012 and Ex.p.18 is Nil encumbrance certificate issued by Secretary, dated 10.4.2012.
Hence, P.W.1 relying upon his oral evidence coupled with documentary evidence marked as per Ex.P.1 to P.18, prayed for grant of specific performance relief.
12. The counsel for defendants cross examined P.W.1 wherein he admits that in all there are 4 agreements of sale came to be executed between him and defendants and P.W.1 denied that after issuance of legal notice by him, defendants approached him and expressed their intention of refunding the earnest money. However, P.W.1 admits that defendants have given reply to his legal notice, but he do not know the contents of the reply notice and P.W.1 denied his knowledge regarding contents of Ex.P.11 issued by the defendants and 16 OS. No.3396/2008 P.W.1 denied his knowledge about filing of suit by tenant against defendants in O.S. No.4126/2006 and even he do not know about the suit filed by the defendants for ejectment of tenant in O.S. No. 7776/2007 pending on the file of CCH No.23 and P.W.1 denied that he is deposing falsely though he is aware of pending litigations filed by the tenant/filed by the defendants/landlord against their tenant respectively and P.W.1 denied his knowledge about the deposit of amount by way of D.D by the defendants for an amount of Rs.3-00 lakhs in this suit.
13. D.2(b) has given evidence through affidavit evidence filed in this case and he is examined as D.W.1. On perusal of his evidence, wherein he has deposed corroborative evidence as per the written statement filed by this Legal Representative in this case on 26.6.2010 after he impleaded in this suit as one of the legal representative of deceased defendant No.2 and D.W.1 admits Ex.P.1 to P.4 and also admitted payment of Rs.3-00 lakhs advance amount by the plaintiff, but D.W.1 stated that against the judgment and decree, there is RFA proceedings pending before the Hon'ble High Court of Karnataka. Hence, D.W.1 stated that he is ready to refund the earnest amount with interest and damages and counsel for plaintiff cross examined P.W.1, wherein he admits that he is one of the consenting witness 17 OS. No.3396/2008 signed Ex.P.1 and also he admits execution of Ex.P.2 to P.4, but D.W.1 denied his knowledge that he is aware of the subsequent agreements entered into as per Ex.P.2 to P.4 and D.W.1 denied that plaintiff was always ready and willing to obtain the sale deed in pursuance of the Ex.P.4 and D.W.1 stated that there are two pending litigations wherein O.S. No. 7776/2007 is pending on the file of CCH No.14 and as such, defendants were not in a position to executer the sale deed and D.W.1 stated that on the date of execution of Ex.P.4, on that day, tenant had already filed a suit against the defendants in O.S. No.4126/2006 and D.W.1 denied that he is deposing falsely that they have intimated the plaintiff in respect of pending litigations. However, D.W.1 admits regarding causing of notice by the plaintiff dated 14.12.2007 and D.W.1 stated that they have informed the plaintiff in writing about the suit filed by the tenant namely Sri.Bhaskar, but according to witness, the defendants have orally informed the plaintiff regarding filing of the suit and D.W.1 denied that due to escalation of prices of properties in Bangalore, they have instigated the tenant to file a suit in O.S. No.4126/2006 and the said suit is filed in collusion and they are avoiding execution of sale deed and rest of the cross-examination is denied by this witness.
18 OS. No.3396/200814. Defendant No.2(b), who is also one of the Legal Representative of late Shivamani( defendant No.2) has deposed through his affidavit evidence filed under Order 18 Rule 4 of CPC and D.W.2 further examined in chief and got marked Ex.D.1 to D.5 in his oral evidence, which are Ex.D.1 is certified copy of judgment in O.S. No.4126/2006 on the file of 39th ACCJ, court dated 26.2.2009, Ex.D.2 is certified copy of decree in O.S. No.4126/2006 on the file of CCH No.40, Ex.D.3 is certified copy of plaint in O.S. No.4126/2006 filed by tenant Sri.Bhaskar against defendant No.2 dated 8.5.2006, Ex.D.4 is the certified copy of appeal memo in RFA No.1819/2013 and Ex.D.5 is the certified copy of order sheet in RFA No.1819/2013 pending litigations in respect of the suit filed by the tenant and also suit filed for ejectment and RFA No.1819/2013.
Hence, D.W.2 by his oral evidence and relying upon Ex.D.1 to D.5 prays to grant relief of refund of earnest amount with interest and damages by rejecting the claim of specific performance prayed by the plaintiff.
15. The counsel for plaintiff cross examined D.W.2, wherein he admits that they have not issued any legal notice to the plaintiff asking him to receive back earnest amount paid by the plaintiff and he admits that the tenant had filed a 19 OS. No.3396/2008 suit for injunction relief and D.W.2 admits that they have executed continuation agreement of sale in favour of plaintiff on 19.5.2007 by extension of time and he identified his signature marked as per Ex.P.4(e) and D.W.2 denied that he is falsely deposing in his evidence stating that the tenant had filed the suit for injunction relief and D.W.2 further denied that in view of escalation of price/market value of the schedule property the defendants are evading their liability to execute sale deed in favour of plaintiff and D.W.2 denied the suggestion that plaintiff was ready and willing to pay balance sale consideration amount. Hence, D.W.2 being the Legal Representative of defendant No.2 has given evidence in this case after his impleading one of the Legal Representative of the defendant No.2.
16. After appreciation of the oral evidence placed on record and perusal of the documentary evidence, wherein the only point that is to be decided by this court, wherein plaintiff proved his readiness and willingness in performing his part of contract as per Sec.16(c) of Specific Relief Act. Plaintiff admittedly was required to pay balance consideration amount of Rs.10,10,000/-, wherein plaintiff has caused legal notice on 14.12.2007 and thereafter, defendants have replied this notice as per Ex.P.10 on 4.1.2008 and again plaintiff caused legal notice on 19.4.2008 as per Ex.P.11. Hence, 20 OS. No.3396/2008 plaintiff caused legal notice on two occasions prior to filing of the suit and showed his readiness and willingness to obtain sale deed from the defendants and on perusal of Ex.P.10, wherein defendants have informed the plaintiff about the pendency of litigations filed by the tenant in O.S. No.4126/2006 pending on the file of CCH No.14 and they filed a suit against their tenant in O.S. No. 7776/2007 pending on the file of CCH No.23 and plaintiff has received this reply notice caused by the defendants. Hence, D.W.1 cannot deny his knowledge about the pending litigations and as such, it is admitted fact that the defendants could not get vacant possession from the tenant in order to proceed to execute sale deed in pursuance of the last agreement executed as per Ex.P.4 dated 19.5.2007. However, defendants have deposited Rs.3-00 lakhs amount by with drawing the old D.D dated 27.5.2010 bearing No. 563375 as it is out of order (lapsed exceeding 6 months of validity) and defendants have substituted fresh D.D bearing No. 613375 for Rs.3-00 lakhs by filing memo on 30.7.2008 in this case. Hence, defendants have deposited an amount of Rs.3-00 lakhs received by them towards earnest amount . Admittedly sale consideration amount agreed was for Rs.13,10,000/-, wherein plaintiff has paid meager sum of Rs.3-00 lakhs so far and still plaintiff has to pay major portion of the balance sale consideration amount. However plaintiff has showed his 21 OS. No.3396/2008 readiness and willingness in obtaining the sale deed, but plaintiff did not complied the terms of the agreement dated 23.11.2005 by depositing the balance sale consideration amount in this suit at the inception of the suit and considering the documents Ex.D.1 to D.5, wherein there is pendency of RFA No.1819/2013 filed by the tenant against the judgment and decree passed in ejectment suit and the matter is ceased before Hon'ble High Court in RFA No.1819/2013 and it is pending for adjudication and suit filed by the tenant in O.S. No.4126/2006 before CCH No.14 also came to be decreed, wherein permanent injunction relief is granted against defendants not to evict the tenant namely Sri.Bhaskar from the schedule property without having recourse to due process of law vide judgment and decree dated 26.2.2009. Hence, it is admitted fact that there are two pending litigations even at this stage, wherein the tenant had preferred RFA against judgment and decree passed in O.S. No. 7776/2007 (Ejectment decree) and RFA is pending before Hon'ble High Court. Hence, in view of clause contained in the agreement dated 23.11.2005, wherein after exercise of discretion under Sec. 20 of Specific Relief Act, there is contract terms agreed by the parties to award damages double the amount of earnest amount paid by the plaintiff in view of hurdles arisen for execution of the sale deed. Hence, after exercise of discretion , wherein it is a fit case to award 22 OS. No.3396/2008 refund of earnest money with interest and damages and as such, plaintiff is not entitled for the relief of specific performance of contract, but plaintiff is entitled for refund of earnest money with interest and damages and as such, with these observations, I hold that plaintiff has proved Issue No.1 against defendants and defendants have also proved Issue No.2 by producing Ex.D.1 to D.5 against plaintiff and accordingly, Issue No.1 and 2 are answered in affirmative.
17. Issue No.3: In view of my above findings on I.A.No.1 and 2 and by exercise of discretion under Sec. 20 of Specific Relief Act, wherein in view of pending litigation, defendants are unable to execute sale deed and as such, plaintiff is not entitled for the relief of specific performance of contract. Hence, I answer Issue No.3 in negative.
18. Issue No.4: In view of my above findings on Issue No.1 to 3, wherein defendants have proved that they are prevented from execution of sale deed in view of injunction order brought by the tenant against them in O.S. No.4126/2006 and also tenant has preferred 1st appeal against judgment and decree in O.S. No. 7776/2007 pending on the file of Hon'ble High Court and as such, after exercise of discretion, this is not fit case to order for specific performance relief and on the contrary, plaintiff can be 23 OS. No.3396/2008 compensated by awarding liquidated damages along with refund of earnest money by awarding reasonable interest on the said amount under the provisions of Specific Relief Act and also in response for terms of agreement of sale dated 23.11.2005. The defendants have deposited Rs.3-00 lakhs by tendering D.D on 30.7.2008 by with drawing the earlier D.D dated 27.5.2010 produced by them and also issued reply notice to the plaintiff informing about the pending litigations. Hence, agreement clause gives awarding double amount of the earnest amount paid by the plaintiff including interest as damages to the plaintiff in case of specific performance relief is not feasible to award. Hence, plaintiff is entitled for getting refund of earnest amount of Rs.3-00 lakhs and double amount of it of additional Rs.3-00 lakhs from the defendants along with interest at bank rate of interest prevailing in the year 2005 at the rate of 10 % p.a from the date of execution of Ex.P.1 from 23.11.2005 till realization. Hence, defendants are directed to pay a sum of Rs.6-00 lakhs to the plaintiff as liquidated damages in lieu of specific performance relief with interest on the amount of Rs.3-00 lakhs at the rate of 10% p.a from 23.11.2005 till realization by the defendants. Hence, with these observations, the suit filed by the plaintiff deserves to be decreed partly against defendants including costs of the suit. Hence, I proceed to pass the following:-
24 OS. No.3396/2008OR D E R The suit filed by the plaintiff is partly decreed for refund of earnest amount with liquidated damages of Rs.3-00 lakhs with interest at 10 % p.a from 23.11.2005 till realization of the amount to the plaintiff and as such, defendants are directed to pay Rs.6-00 lakhs double the amount of earnest amount paid by him with awarded rate of interest at 10% per annum from the date of Ex.P.1 till realization in full to the plaintiff and specific performance relief sought by the plaintiff is rejected.
Defendants are directed to refund the remaining balance of Rs.3-00 lakhs with interest awarded within two months from the date of drawing decree in this case.
Plaintiff is permitted to with draw the amount deposited by the defendants in this case in the form of D.D dated 30.7.2008 after expiry of appeal period.
Draw decree accordingly.
{Dictated to the Judgment writer , transcribed by her, corrected and then pronounced by me in open court this 21st day of July, 2015.} (S.V.KULKARNI) XI ADDL.CITY CIVIL JUDGE BANGALORE CITY.25 OS. No.3396/2008
ANNEXUERE List of witnesses examined for plaintiff:-
P.W.1 Sri. S. Murugesh List of documents exhibited for plaintiff:-
Ex.P.1 Agreement of sale executed by
defendants 1 and 2 dated
23/11/2005 in favour of plaintiff
P.1(a) and (b) Signature of 2nd defendant and
signature of plaintiff
Ex.P.2 Agreement of sale dated 28/05/2006
executed by defendants
Ex.P.2(a) to (f) Signatures of defendants and plaintiff Ex.P.3 Agreement of sale dated 26/11/06 executed by defendants.
Ex.P.3(a) to (f) Signatures of defendants and plaintiff Ex.P.4 Agreement of sale dated 19/05/2007 executed by defendants Ex.P.4(a) to (f) Signatures of defendants and plaintiff Ex.P.5 Office copy of legal notice sent to defendants 1 and 2 dated 14/12/07 Ex.P.6 & 7 Two postal receipts Ex.P.8 & 9 Two postal acknowledgments of D.1 and D.2 for having received the notice 26 OS. No.3396/2008 Ex.P.10 Reply notice of defendants 1 and 2 on 04/01/2008 Ex.P.11 Office copy of legal notice dated 19/04/2008 Ex.P.12 & 13 Two postal receipts Ex.P.14 & 15 Two postal acknowledgments Ex.P.16 Certified copy of the sale deed Ex. P.17 & 18 Encumbrance certificates issued by Sub Registrar dated 10.4.2012 List of witnesses examined for defendant:
D.W. 1 Sri. S. Kamalesh D.W.2 Sri. S.Omprakash
List of documents exhibited for Defendant:-
Ex.D.1 Certified copy of the judgment in O.S. No.4126/2006 Ex.D.2 Certified copy of the decree in O.S. No.4126/2006 Ex.D.3 Certified copy of the plaint in O.S. No.4126/2006 Ex.D.4 Certified copy of the appeal memo in RFA No.1819/2013 Ex.D.5 Certified copy of the order sheet in RFA No.1819/13 XI ADDL.CITY CIVIL JUDGE, BANGALORE CITY 27 OS. No.3396/2008 28 OS. No.3396/2008