Karnataka High Court
Smt J Roopa vs Smt Sowbhagya on 26 August, 2010
Bench: K.L.Manjunath, B.Manohar
1 IN THE HIGH COURT or KARNATAKA AT BAEGALQRE DATED THIS THE 26" DAT or AUGUST, 2o19:Tr PRESENT b ]E THE HON'BLE M. JUsTIcE_g,L. MANEEEETEET T AND . « E . . . THE HON'BLE MR. $fiS?IdE E.M3N§gg#,_ E REGULAR FIRST AppEAr?E§_594}2aEQ5(Ep) BETWEEN: A. x 2 J.Roopa w/o Gopalakriéhna,AE 28 years, R[at,Eo.156;\4"yQf¢s$[f' II Main Road, Shgvip lya,,jr 'W Maha1akshmip§ram}_,"g,'._r E , Bangalore-9$:--g" W=VV ~_ _§ .. APPELLANT (By AdvocéEeqSrif$pSeshagiri Rao) AND: Sowbfiégya w/bufi,ChEnnagangaiah, '"*57 years, R/at N6 738, I 'F" Cross, .'3mvStage,,§W Block, 15" Main Road, '§a3ava$hwaran§gar, Bang;1¢ree79,* .. RESPONDENT
(By Afivdhate Sri.D.R.Sundaresha) '*.TrThis Regular First Appeal is filed under Order- ~4i Rule»; of CPC against the judgment and decree ~détéd 31.3.2010 passed in O.S.No.5766/2006 on the V"=.gi1e of the xxv Addl. City Civil & Sessions Judge, 5/..
2 Bangalore, decreeing the suit for recovery of money and rejecting the suit for specific performance of contract.
This .Appeal is coming' on for' orders_wthis1 day, MANJUNATH J. delivered the following: ' "*-"
Legality and correctness! of "the. 5§d§e§ng;tand"
decree passed in o.s.No.5%§6{2oo6Vdeged 3lm3;2010-by the XXV Addl. City Civil & Sessions Judge, hangalore.
2. Though the matter is listed for consideration of an applicationff,filedi*@forEAxgrantu of temporary injuncticn,--_ both the parties requested the court'Ftov dispose} of the appeal on merits. therefore. on the request of the counsel for both the parties, this appeal is heard on merits. fV*3. The appellant instituted the aforesaid suit to »i}grant a decree for specific performance of agreement {f"e£ sale dated 12.8.2605 and 12.1.2606 directing the ' "defendant to execute the sale deed in respect of "=piaint A-schedule property failing which requests the '3"?
4 lacs as advance and balance sale consideration was agreed to be paid within six months from" said date and the defendant also agreed_ftof pet 'the plaintiff in possession of thewprope'r*tv--;}::j~.Vat-.1:
of registration of the sale de'ed.:_-~-sf
4. It is the further sjthatiiat the time of negotiationwsi'mo'fr_:';the property it was informed to the t_h.at_'.::.v"'p_roperty of the defendant is ft. and north---
south 30 was also physically measured. iiii ioffxexecuting the agreement at about defendant's husband Channagangaiahvi and A*oth'er members of the family were present a_and~na sn:'t:""'of Rs.5 lacs was paid as advance "presence of family members and Gzirija Shankar friend of defendant has also attested docizment as an attesting witness. At the time of if drafting the agreement measurement of the site was as 30' x 40' instead of 30' x 52'. When the ~ ,:.same was questioned, it was informed to the plaintiff 8/ 5 by the defendant that what has been granted to the defendant by the EDA is only 30' x 40' and there is marginal land east-west 12' and that she has enclcsed the marginal land also and further submitted that sheK has been negotiating with the EDA is get the marginalV"
land in her favour and that she would deceive the plaintiff and that she would execute the sale deed for 30' x 52' after getting théy%Qrginal land from the sun. Therefcxe, p1sint1fs_s1gned the document on 12.3.2005. rmt is iuefisst stated that a sum of Rs.l lac was §§iacg§ egnfigfififi; e sen of Rs.2.20 lacs was paid on 23_9.é603e e sfim'cf Rs.3 lacs was paid on 19.10.2005 and e sen ct hs.2 lacs on 23.11.2005 was paid by was of cash.: According to the plaintiff, in ail 'Rs 13.20 Elacs was received by the defendant the back of the agreement dated 7; i2.3.2005;l She further states that in the first week 1ficfedanuary}2006 she met the defendant and her husband i¢;and2:eqnested the defendant to execute the sale deed las she was ready and willing to take the sale deed by 6%"
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paying balance sale consideration. Accordingly, another agreement dated 12.1.2006 came into existence as a continuation of the earlier agreement on 12.8.2005 in respect of the marginal land. 'is as the case of the plaintiff that plaintiff was ready and) willing to perform his part; of 7the" contract;%"
defendant went on postponing to execute the sale deed and later on further advances were also paid and she narrates how further advances eereHPaidu According to the plaintiff, in are a see cf 2s.19,70,000/-- was paid as stasaq in para5i0 ape; cf the plaint. Since the defendant Wdifi inot_'execute the sale deed, plaintiff gotissnéa a iegal notice on 22.4.2006 for which _an nuntenehle ireply was sent on 15.5.2006, therefore aplaintiff filed suit to enforce the ag:scficnt"5ca;sc" 12.3.2005 and 12.1.2006 describing Vkg the propertyl agreed to be sold under the first .f:'agr¥eenxe_ntVV"'as A-schedule property and describing the "",gpropert§ agreed to be sold under second agreement as %"'s.i a¥schedu1e. .
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5. Defendant appeared before the court and filed the written statement. According to the _4.de:E_rendant, she is an illiterate lady and she is the owner of the property and paccord.iri9"'i:§§.,,,,;;1er is no transaction between'-._ '=p1axin'titff'=::y and. -- defendant. One Girija Shanipar who used to advance loan to whenever her husband approached III Floor of the building. 'signatures were obtained by promise that the documents " the defendant would be returned:7__aft.erV'the:V"loan"-is discharged. Believing the representation V of Shankar she has signed the. 4'documet';é:t'v and that Girija Shankar hand"-in-glove with the to make unlawful gain, mis-used the documents.' by the defendant and filed suit on false 'Iand: . frivolous grounds . She further contends if the plaintiff has paid any amount to Naveen Ki.1:n"a-rifis not binding on her as the said amount cannot "la-e"V'treated as amount paid to the defendant. It is a&/' 8 also the case of the defendant that plaintiff has no financial capacity and was not ready and willing to fulfil the terms of the agreement of sale and'-._su_it is instituted at the instance of Girija3V_:WSha11.}{a-3:._"'by suppressing the real facts._mVbAccerdi--ng.i'»toV plaintiff has not come with c3,ea:n..hands'..x"It:"ieis*::Vralso"~. -' contended by the defendant'.-'Vpt.l__-iatl' of any transaction nor property, market value of the value of the building and make unlawful gain; was also filed on the ground ybcvo«ns_ideration of the property is more thanilthe in the plaint and the plaintiff has suppressed the value of the property. "A2fheref_ore_v,:' eppdefendant requested the court to dismiss the' Sufi? 3 ..
Basedfon the above pleadings, following issues weire vfraemed by the court below:
1 . Whether the plaintiff proves that defendant " entereé into agreement for sale dated 12 . 8 . 2005 in respect of A and B Schedule 6/ 9 property and paid Rs.5,00,000/- as earnest money on the date of execution of agreement for sale? V"
2. Whether plaintiff further prayésfg that defendant executed another agreeflent'for sale dated 12.1.2006? V 'T' r-- "
3. Whether plaintiff proyesppthat¥'plaintiff7 on_i various dates paid the amounts as mentioned*"
in endorsement in agreement for,sale?
4. Whether plaintiff preyes that she was and is always ready and willing to perform her part of contract? V' ' * "
5. Whether' defendant, prdyesphthat agreement for sale was _executed aforl security of loan advanced at the behest of Girija Shankar? entries mags been made and agreement for sale has -been 'created .by plaintiff on blank signatures given by defendant?
6. Whether" defendant: prbves that fraudulent
7. Whether" plaintiff is entitled for specific _ performance of contract?
V".3F What order or what relief?
A".Addl}f1ssfieE Whether the relief as claimed by 'the plaintiff by way of amendment is barred by Limitation?
f'7ff ifi order to prove their respective contentions, ff",r'f,plaintiff got herself examined as PW-1, Girija V'"a_§hankar was examined as ?W-2, one Gopalakrishna was <9"
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examined as PW-3 who is none other than the husband of the plaintiff, and one Kranthi Kumar was examined as PW--4 and also relied upon fiwsffifl tol5. On behalf of the de£endant,:""herfa'hushandfi Channagangaiah was examined as :;a:~z~l-1?,_¢ni ¢'§;:ound'.. --:
that the defendant was unV_--'w.ellV"'and V fventier into the witness box. s appreciating the entire evidence let_in by the parties held that issues 1 to 4 in: 5 to '7 and Addl. Issue uuitimately suit came to be thiepppppdelfendant to refund an amount of__ interest at 6% from the date of of realisation. Court exercisfingae. dis-::.retio':nary power refused to grant lspeciafic fperfermance on the ground that it would causeV"f.--._£ioVr'e"_~v.,,__hardship to the defendant than the :9i.aint'i"f£.-lifv"relief is not granted to the Plaintiff. .«_ag§'rieved by the judgment of non-wgrant of V<iecree"'Afor specific performance, present appeal is T i'l"e'd.
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8. We have heard. Mr.T.Seshagiri Rao, counsel for the appellant and Mm.D.R.Sundaresh, counsel for the respondent.
9. The main contention of the appellantVhefore.us, is that the trial court has comitted an error in not_w granting relief of specific performance even though the plaintiff has proved pi aacarding to him, when the agreemeat executed ty the detendant has been proved and when the plaint$f£efia§-further proved that she was ready and willing to perform her part of the contract;«e;iai court had no jurisdiction to deny the relief lof 'specific iperformance and the trial court has committed serious error in cflxecting the :defendant to refund the advance. He further contends that even if the court had come to the conclusion v"<that Agreater, hardship would be caused to the rafdefendant_if she is directed to execute the sale deed econittheiflground. that the consideration shown in 'the iT3fireement Rs.48,20,00D/- is not the actual market :3 'value, the court should have considered the W E2 transaction as a distress sale and if a party in her urgency has agreed to sell the property forV_d~.1}:re_ need for a lesser amount, same cannot be reject the relief of specific perforsiafnycei ~on_r ground that the sale considerationsA.}i.s2_nolt'- r:aar'ket"~.A I value of the property. _. _ V V
10. Per contra, counse'l,g""l.for i:h_e'.= respondent Mr.Sundaresh contendsthat:i'"trial\'"-.court"'is justified in refusing to grantlll of specific performance sint'3s'_'--val_ue.-Z: of=,At'he___proVperty as on the date of notlvlllllless than a crore of rupees. property is situated in Basavesh_w_raran"ag_ar_.V'-- it has a three storied . 2,)-s,§7>&;.fi!intiif'f""'had no money to Purchase the property. not placed any material to show that ' V....'»she and willing to perform her part of the ~l.l'_:':..-:.o'r.tract; _ taking undue advantage of the situation has placed, filed a false and frivolous caisefi therefore trial court is justified in refusing grant discretionary relief of specific
6)/.
E3 performance. He further contends that even though plaintiff has not proved issue No.4 by._p-gioducing cogent evidence, still the trial court. held issue No.4 in favour ofmthe further contends that even though_---npci .:
objections are filed by<l'l--'...he V"£3'._e'f«.?.v1'1d.a';1'i:1'»{-,%:'_V_V.Vstglilliiilby making use of the provisions"-V'.V:o.§__Orderjfill::}Rt:1e--22 of CPC he can urge that finding on issue No.4 as bad be reversed by this court. _ plaintiff hand in glove filed the suit to suite heir' <:onve11i.enc'e.e.T:'Acciording to him, plaintiff has a6.mitted_ in ~cr'_oss--examination that she does not kn-afwiv the value of the building or site on the date «ofu agreement and the defendant has placed mate~ria.1 what was the value of the property as on uthe"'--VAda't.e of the agreement. He further contends 'ithough nw--1 has stated that the value of the as on the date of agreement of sale was not .348 lacs and it was more than Rs.85 lacs, for the 8*"
E4 reasons best known to the plaintiff's counsel he does not touch upon the market value of the propert§ while cross-«examining DW-1. Therefore he market value of the property was contended 'gbyj defendant has not been denied is, -: placed before the court *that* the g§alfi§ got the property as on the; date: dg.padtesednt} was only Rs.48,20,000/-. Since:"evi.de:nce"--.VoA.t:'i)W--l in regard to the market value. of" the _t;d§d§ty; has not been challenged. hyflnthep plaintifiri or "her counsel, trial court 5.s___ that the defendant would putAllVtvef_hiore..l_Th--ardship in directing her to sell the property north more than Rs.8S lacs for a .paultrg! sum of,pRs.e8 lacs. Mr.Sundaresh further subAm:i«ts that::*#;he contention of the counsel for the appellant*that the sale is a distress sale would only v5_ show that amount of Rs.48,20,090/M is not the actual .xVfiarketl value. He further contends that when the hkp appellant now contends that the transaction is a "distress sale, appellant has not laid any foundation @/ 15 either by pleading or letting evidence that the sale consideration agreed was on account of distress sale. The said contention could have been considered by the court provided the appellant had paidf"theH entire consideration of Rs.48,20,000/~ forthwithQ*®When"the, agreement is of" the year 2005 :and iii rthesrsuit} iepfi filed in the year 2006 and efitgee consideration is not paid, purpose of distress_ sale twafiia also be taken away and that the tfie§g§,af.ais£§¢ss sale has been invented by the appellae%--§#"erder to over--come of the judgment end.deQ%§el§¥'the;£rial court. In the circemstances; he requests the court to dismiss the appeal{Vfl"
gilp. Heuing'"heardf the counsel for the parties, the only point that arises for our consideration in this 'V=appeal_is;.lg' . "Whether the trial court is justified in not »x'&irecting the defendant to execute the sale deed xinT' respect of plaint A and B schedule Rsproperties?"
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12. Having heard the counsel for the parties, it is not in dispute that the defendant is the owner of the plaint schedule property. As on the wdate of agreement dated 12 . 8 . 2005 Bwschedule : not owned by the defendant and marginal land has been allottedvtioher"--hy.'the'V.i_:Bl5i=L:.and"' J she has spent enormous iiirfiarginal land measuring 12' x,----§0' her"vca.s}e that she did not enter into ah the plaintiff and that she cioouments in favour of one Girijaiziaoney lender and who is in vei;-Ay._ the plaintiff. She has also denied'-gtlae xvaluegfiofééithe property on the date of agreement "of In this back-ground, what is 'required considered by this court is whether the ~. *:$r'a1ue of the suit property was Rsy.48,'.2£),Cl:(&).O'/;- only. Whether the transaction between "plaintiff and defendant can be treated as a d;i.,st--ress sale and whether the property as on the date agreement was worth more than Rs.85 lacs and We E7 whether the trial court is justified in not directing the defendant to execute the sale deed in respect of property for a sum of Rs.48,20,990/- as against its market value of Rs.85 lacs.
13. Though the defendant Vhas tdéniedr the :agreement entered into between the partiesg'ejidence on record discloses that the fiéisementflhaé been entered into between the parties, since defenfiefifi has admitted her signature on gone ofi the dopafifintsr When once the defendant has adnittedfnéx signature in some places on Ex.P-$ §"3; this court has come to the conclusion that an agreemene beg been entered into between the plaintiff and the defendant. Ex.P--1 is the agreement ;inarespect,of the property measuring east--west 40 ftm and '-30 ft.. In the schedule mentioned in i 7 »Ex.Pe1g it_ is }clearly mentioned that there exists ~f house property of 30 sq. RC C roof building. '['9nepe;£y is admittedly situated in Basaveshwaranagar. "*I£ a site measuring 39' x 40' in Basaveshwaranagar, h"»hest of Chord Road which is known to be one of the 6/ 18 best locality with 30 sq. RCC roof building, is it possible for any party to sell for a paultry sum of Rs.48,20,000/-. This court has to examine the actual value of the property or the nature of evidence let in by the parties to know the aezue of the prépertyg ; Another agreement of sale. ExfB§2,>iit.:i§yMdetedA 12.1.2006. It is in Vrespect' of efig§,~fiyopérty measuring east-west Vfiap ft."=enawggor£fi;$o£th 30 ft_ with 30 sq. RCC roof building. (Consideration to be payable for the ercess land is also not mentioned in Ex.P--2. Theieferei whet is to be considered while considering the market value is the actual extent of the site and building thereon. The property measuring east-west' 30 aft. and north--south 52 ft., total measurement of the property would be 1560 sft. along with §0«sg},RCC roof building. PW-1 has stated as "-.Vg property at that time."
hereunderi "l "'V'I< fies not aware of the market value of the / 6%"
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By looking into the entire evidence of ?W-1 it is clear that she is only a name--lender to the agreement and she does not know the actual transaction between the defendant and herself. Ex.Pm10 is the photograph of the building which has been taken from the reari side of the building which the".
construction put up by the defendant g Building is of a quality construction,$"tdrrlng the* "bear 2005 construction value in '3s5g$i§e§5 is rrespect of RCC roof of good guality could not hate been less than Rs.80,000/- is to be calculated ._perV'7Tsqg.7ggas_T"'vc_o*st of construction of the building ina?0O5} fsrffihé building of 30 sq. it comes to Rs,Z#ulacsfW_if the value of the building itself comes to Rs,24 lacs, then this court has to examine what_Would re the value of the vacant site in respect V?" of ISEO fsfti. Admittedly the suit property is jisituated in West of Chord Road, Bangalore which is "FL fiery near to the Bangalore City Railway Station and Bangalore Central Bus Stand and it is known to be 8/ 20 upper middle class locality and there is a great demand for site and building. The market value of the site in that area in the year 1985 aguxa not be less than p.s.5ooo/- to Rs.6oo0_/rrr.Per_~'é'q".~~'f'_££":"
same is considered 'the value; o£"fthe_"site;\_itse1fF' would be more than Rs.70"lacsthwthe¥éforeW if Dfirl has deposed that as on the date of acreenent, value of the property was note than Rstfifi lacs, it cannot be said that there "is ;any,iexa§§eration in his evidence. According to dwgln value of the property as on the date of aaegeggfig figs Bs.h5 lacs which portion of the evidenea ;g culled out by us as hereunder:
"We will he put to hardship if property is lost or sold or ordered to be sold. I submit on oath __ that ithe marketv value of the property' in the "W.year:y20Q5 is "more """ than Rs.85 lacs and no e_. qpestion_* of selling the property to the '§;;laint..if»f'Aet.f'or sum of p.s.4s,2o,ooo/--. Mr.G:i.rija ~shank'ar_"_v».__u'::§ed to advance loan has created this document and it is he who created the documents Exs.P&1"& 2 to make unlawful gain."
ujs¢g_£a:y as this piece of evidence is concerned, 'h"7_ oh; plaintiff's counsel has not at all cross--examined .h',_ EH41} When there is no cross--examination in regard 6/ 23 to the market value of the property by the plaintiff or by her counsel, this court has to accept 'that the market value of the property as on of agreement was not less than Rs.85 _1.ac:s.,xW:therefo,re.,__ plaintiff' s counsel did not touch. or'.._ evidence and did not chal1,_enge"._!t'he 1 the contrary, plaintiff's counsiel_V"v'has to m§--1 as hereunder: i in if "It is false to property is sold to a_third;_party,__"«Jj--.,_wou'.1d get more money and if the paropeirtgf "Vise .sold------~for Rs . 48, 20, 000/- to the , «._I...__wou.'!.d'*«,be_ put to loss." From ciliear that if the property was agreed to a third party, property would fetch a*xI}ore','-- money and if it is sold for t§"'t*n¢_~ plaintiff, defendant would be «.:"_Ihis suggestion is made to DW-l on court is also required to be ~ifjv»~c.on~sidered__A'3~ that from 2007 onwards value of the p--r"ope.rty in Bangalore has been reduced on account of recesfsion in real estate. If the suggestion is made the plaintiff's counsel on 19.8.2009 that if the 69/
22. same is soid it would fetch more value than Rs . 48 , 20 , 000/-- , naturally when the property was agreed to be sold in favour of the {when there was a boom in the real estate_"=Jou*siness" _m__ Bangalore, value of the property a4n'y.: of.._ imagination cannot be considering the hardship to the defendant and that in the agreement is not__the as rightly directed o.n'l3}B the advance sale considerationpgg "'1'xerV'fV By refusing to grant relief of speciifuizs _p pegrfornman-ce .
14. Though vléarvned counsel for the plaintiff ;¢§:onten'c1s' that. it wasiva distress sale, no material is pliaced plaintiff in her evidence that V"-~ie'defendant to sell the property for a sum of *«.i«i..j'jv.i%sV.'~48,20;0VQ1~0/~» as she was in distress. This court x_e45{.a:mined in the back-drop of the written statement of the defendant that defendant had taken V"V3,¢'an from Girija Shankar, Girija Shankar had obtained 6/ 23 document from the defendant and plaintiff has made use of the same at the instance of Girij_aa.y_:S.ha._nkar. Though the appellant's counsel contends»thatff:s.ale.'is a distress sale, as rightJ,y__ cute if Mr.Sundaresh there is no proper p'1e'ading Ié~;iee¢nc§"'~. "
to show that the defendan:§,___qpas"A'v-aggreedif the property for a sum of fine was in distress. By considering. advanced by the counsel fa'!-y"' the defendant agreed to sale would only discVJ_._ose"',t'1xai;:_ of the property was not - but it was much more.
Therefore, *yconsidering=' the arguments of the a_ppel1a.nt'V's counsel, 'this court has to confirm the .VpAand,T"decree of the trial court. In the circum'st'ance%'5_,V';;Vwe do not see any infirmity in the judgment andfsdecree o the trial court. However, we " the trial court did not consider the V4"a.__adva'n:cbe"A amount paid by the plaintiff in a sum of R--sf."i'9,7G,00O/-. When the defendant had made use of 6/ 24 Rs.19,70,0€}0/-- of the plaintiff, it would be unfair for the court to direct interest on the sum. Considering the actual market value of gti1et'VV'.;Ioiro.Fnerty and that the plaintiff had paid faaeQ'sun'",of_ Rs.19,70,000/~, we are of the fqp:nienfu;het_?the_i judgment and decree of ttheu coagir-ti. 'ii-;oij"1',>e modified by holding that in eeei;i¢n he the refund of Rs.19,'70,000/- with the date of suit till the date defendant is also to be damages of Rs.S lacs towards. C__t»he incurred by the plaintiff; andallas"=-xicoffipen-sat.-'ion for having used the said amount "Joy" the 'defendant .
result; """ "this appeal is allowed in part. Judgments. decree of the trial court in refusing to i'-~aV'grant' specific performance is affirmed. In ~ifjvmod-if:i.cat.io~n of the decree of the trial court to sum of Rs.19,20,000/- with interest at 6% from the date of suit till the date of d*realization, we hold that the plaintiff is entitled «E»/A 25 for a sum of Rs.19,?D,000/-- with interest at 6% p.a. from the date of suit till the date of realisation. In addition appellantwplaintiff is entitled for a sum of Rs.5 lacs as liquidated damages. Wdwe dirent the defendant to pay the aforesaid anount within a period 5 of three months. If the amount is finot' paid uor deposited within a period of three months firom todey, aforesaid, amount shails caf£y{ interest eat 18% p.a. from today.
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