Bangalore District Court
P.S.Balagangadhara vs Smt.Annapurna on 15 February, 2023
KABC010268302017
IN THE COURT OF THE LXIII ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-64) AT BENGALURU
Dated this the 15th day of February 2023
: PRESENT :
Sri.A.V.Patil, B.Com., LL.B.,
LXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
OS No.7463/2017
PLAINTIFF : P.S.Balagangadhara
S/o Late.N.Subbarao,
Aged about 63 years,
Residing at No.205, B, 17 'A',
C/o Narasamma, 14th 'A' Main
Road, Subramanyanagar,
Bengaluru - 560 021.
(By Sri.A.Ambarisha, Advocate)
-V/s-
DEFENDANTS : 1. Smt.Annapurna
W/o Muniyappa,
Aged about 41 years,
2. Kumari.Sushma.M
2 OS No.7463/2017
D/o Late.Muniyappa,
Aged about 21 years,
3. Kumari.Swathi
D/o Late.Muniyappa,
Aged about 18 years,
All are residing at No.221,
1st Cross, Babureddypalya
Extension, R.T.Nagar Post,
Bengaluru - 560 032.
(By Sri.Devdas, Advocate)
Date of institution of the 04.11.2017
suit
Nature of the suit Specific Performance
Date of commencement of 08.06.2018
recording of evidence
Date on which the judgment 15.02.2023
was pronounced
Years Months Days
Total Duration 05 03 11
JUDGMENT
The plaintiff has filed this suit for the relief of specific performance of an agreement of sale dated 01.10.2015. Alternatively prayed for return of advance amount of Rs.10,00,000/- along with interest @ of 3 OS No.7463/2017 21.75% p.a. for the relief of permanent injunction and other reliefs.
2. The plaintiff claims that the defendant has executed agreement of Sale in favor of plaintiff to execute the sale deed in respect of the suit schedule property bearing No.49/1 is fully described in the plaint schedule consisting site and constructed housein favor of plaintiff for valuable Sale Consideration for Rs.35,00,000/-. On the date of execution of sale agreement, the plaintiff has paid an amount of Rs.10,00,000/- to the defendants by way of cash in the presence of witnesses. The defendants agreed to execute the absolute sale deed in favor of plaintiff within 180 days from the date of executing the sale deed. Subsequently, the plaintiff came to know that the loan borrowed by the defendant on 10.01.2008 by mortgaging the schedule property to the Bank of India, Malleshwaram, Bengaluru and all the original documents are given to the Bank at the time of obtaining the loan. Defendant has suppressed the said facts and fail to pay regular monthly installments even after issuance of several reminders by the bank. Sri. 4 OS No.7463/2017 Muniyappa husband of Defendant No.1 died on 10.12.2016 leaving behind the defendant No.1 to 3/wife and children. On 29.07.2016 the defendants have executed extension of agreement stating that they wants time till 30.04.2017 for executing the Sale deed in respect of suit property. The Muniyappa husband of defendant No.1's and defendant No.1 have signed the said Agreement stating that the Muniyappa husband of defendant No.1 is seriously ill and they could not be able obtain khatha in respect of the scheduled property in order to perform the contract as agreed on 01.10.2015. Even after executing the agreement and several requests, the defendants not ready to perform their part of contract and postponing the execution of the Sale deed in favor of plaintiff by taking necessary documents by giving one or the others reasons.
3. In the year 2010 plaintiff has taken voluntary retirement from his service in BMTC, Bengaluru. He could not have house to live, he wanted to purchase house for his personal use in Bengaluru City. Since several years the plaintiff and the husband of defendant No.1 knowing to each other, the plaintiff has raised 5 OS No.7463/2017 funds for the purchase of Schedule Property as the defendants were in need of funds to sell suit schedule property. Both the defendants as well as the plaintiff have agreed to the terms and conditions and the time stipulated in the Agreement. With a malafide intention the defendants have not disclosed the material fact about the mortgaging of the suit schedule property to the Bank of India. To knock away the earnest money of the plaintiff the defendants have not disclosed the material facts. The plaintiff is ready and willing to purchase the suit schedule property. The defendants are avoiding of executing the registered sale deed. Finally the plaintiff got issued legal notice to the defendants on 18.04.2017 to the defendant No.1 through RPAD as well as by an ordinary post, but the same was returned. Again on 26.04.2017, the plaintiff got issued one more notice and it is served upon the defendant No.1 on 27.04.2017. Even after the service of notice the defendants did not complied with the demand made therein. Subsequently, the defendants have made an attempt to alienate suit schedule property in favor of three persons and therefore, plaintiff has filed this suit for Specific performance of 6 OS No.7463/2017 agreement of Sale deed on 01.10.2015. Alternatively if any reasons, the Specific Performance of the Agreement of Sale is not possible, can direct the defendants to pay a sum of Rs.10,00,000/- along with interest @ 21.75% p.a. restraining the defendants from alienating suit property by issuing Permanent Injunction and for other reliefs.
4. In pursuance of service of summons, defendants No.1 to 3 have appeared through their Counsel. Defendants No.1 and 2 have filed written statement together and they have denied all the allegations made in the plaint alleged to have taken place between them and plaintiff and called upon the plaintiff to strict proof of the same. According to them plaintiff is stranger to the defendants. Therefore, there is no question of non- disclosure of material facts. In the year 2008 suit schedule property has been purchased by husband of defendant No.1 in the name of his wife i.e defendant No.1. The plaintiff has filed this suit by suppressing the true and material facts with a malafide intention of making unlawful gain and thereby causing wrongful loss to the defendants. Hence, the suit is liable to be 7 OS No.7463/2017 dismissed for want of bonafides and suppression of material facts.
5. Defendant No.3 has filed written statement separately, she too denied the allegations made in the plaint in toto and called upon the plaintiff to strict proof of the same. However, she admits that the property is already mortgaged to the Bank of India. Therefore, the question of agreeing to sell the suit property to the plaintiff does not arise not at all. The documents relied on by the plaintiff are fabricated, created by the plaintiff and Narasimhamurthy/brother of defendant No.1. In fact, the plaintiff is not at all known to the defendants or her husband late Muniyappa. There is no cause of action to file the suit. The valuation of the suit and payment of Court fee made by the plaintiff is not correct. The suit of the plaintiff is bad of non-joinder of proper parties and misjoinder of unnecessary parties. The plaintiff and brother of defendants No.1/Narasihma Murthy have created fabricated document and played fraud to grab the property. Husband of defendant No.1 and her father late M.Muniyappa suffering from Cancer and other severe ailments and he was not in sound 8 OS No.7463/2017 state of mind and even he was not in a position to move around and he was under regular treatment/dialysis and medication. He was treated in so many hospitals regularly including at Kidwai and other private hospitals, Bengaluru. Narasihmamurthy/ brother of defendant No.1 used to visit the hospitals, at that point of time he used to get signatures of late Muniyappa stating the requirement of same for hospital treatment purposes etc.,. It seems the said Narasimhamurthy has created, fabricated and converted the illegal blank papers into stale alleged agreement by playing fraud and misrepresentation in order to grab the property of defendants. The schedule property is already mortgaged to the bank by availing loan and the defendants who lost their husband and father are entirely depending upon the schedule property. But it is very unfair on the part of the plaintiff and Narasimhamurthy and others who are all resorted into illegal acts to harass the defendants taking undue advantage of the fact that male person in the family died and the defendants being the helpless persons are not in a position to resist the illegal acts of plaintiff and others. There is no any kind of contract or agreement between the parties. This 9 OS No.7463/2017 defendant is not a party to the said agreement. Hence, prayed for dismissal of the suit.
6. Based on the pleadings, the following issues were framed:
1. Whether the plaintiff proves that the defendant agreed to sell the suit property in his favor for a consideration of Rs.35,00,000/- and executed an agreement of sale on 01.10.2015, by receiving Rs10,00,000/- as an earnest money ?
2. Whether the plaintiff proves that the defendant executed an agreement of sale on 29.07.2016, seeking time to execute the sale deed till 30.04.2017?
3. Whether the plaintiff proves that he is ready and willing to perform his part of contract?
4. Whether the plaintiff is entitled to the relief of Specific Performance of Contract as it is prayed?
5. Whether the plaintiff is entitled to the refund of earnest money with interest as it is prayed?
6. What order or decree?
7. In order to prove his case, plaintiff himself examined as PW1 and got marked Ex.P1 to 18. Plaintiff 10 OS No.7463/2017 got examined one more witness as PW2. Defendant No.1 got examined herself as DW1 and got marked Ex.D1 to 5.
8. Heard arguments from Advocate for plaintiff and defendants. Perused the materials placed on record and written arguments.
9. My finding on the above issues are as hereunder :
Issue No.1 to 5 : As in the negative, Issue No.6: As per the final order for the following, REASONS
10. Issue No.1:- In order to prove the claim made by the plaintiff, himself examined as PW1 and has reiterated the allegations made in the plaint. In support of his oral evidence has also produced the documentary evidence at Exs.P1 to 18. Ex.P1 is the original Sale Agreement dated 01.10.2015, Ex.P2 is the office copy of legal notice dated 18.04.2017, Ex.P3 to 5 are the three postal receipts, Ex.P6 is the postal acknowledgment, Ex.P7 is the encumbrance certificate, Ex.P8 is the returned postal cover, Ex.P9 is the statement of Bank account, Ex.P10 to 17 are the letters issued by the Post Office and Ex.P18 is the agreement.11 OS No.7463/2017
11. Per contra, in order to prove the defence taken in the written statement defendant No.1 examined as DW1 and has reiterated the defence taken in the written statement on oath. In support of her oral evidence has also produced the documentary evidence at Exs.D1 to
5. Ex.D1 is the Laboratory requisition slip-1, Ex.D2 is the certificate issued by the Doctor, Ex.D3 is the statement of Bank account, Ex.D4 is the copy of FIR, Ex.D5 is the Death Certificate of Muniyappa.N.
12. This is all the oral and documentary evidence placed by parties to the suit in support of their respective contentions.
13. The Advocate for the plaintiff argued that the defendants have executed Ex.P1/Agreement of Sale in favor of the plaintiff on 01.10.2015 and agreed to sell the suit schedule property for consideration of Rs.35 lakhs out of the total consideration the plaintiff has paid earnest money of Rs.10 lakhs to the defendants and they have agreed to execute the Sale Deed within 180 days from the date of agreement. But the defendants have failed to keep the words. On 29.07.2016, the defendants have executed the 12 OS No.7463/2017 document and extended the time for execution of Sale Deed. Even thereafter, the defendants fail to execute the Sale Deed. Hence, the plaintiff got issued the legal notice and filed the suit. As on the date of Agreement, though the defendants have borrowed the loan from the Bank of India by mortgaging the suit schedule property, the said fact has been suppressed and executed the Agreement of Sale in favor of the plaintiff. The defendant No.1 admitted about her signature on Ex.P1/ Agreement of Sale and Ex.P18/the document executed by extending the time. According to him, the plaintiff proved the Agreement of Sale. The plaintiff is always ready and willing to perform his part of contract as per the Agreement dated 01.10.2015. The plaintiff has sufficient funds to pay the balance consideration shown in the said Agreement. Hence, he prayed to decree the suit as prayed. In support of arguments, has placed reliance on a judgment passed by the Hon'ble High Court of Karnataka in RFA No.10034/2016 dated 23.07.2021 (P.Narendra and another Vs. Katta Subba Rao).13 OS No.7463/2017
14. The learned Counsel for the defendants filed written submission. According to him, the defendants by mortgaging the suit property, borrowed the loan from the Bank of India on 10.01.2018 itself and the original documents are with the Bank. The defendants have denied the entire case of the plaintiff and claimed that the defendants never executed either Agreement of Sale or Extension of Agreement. Without admitting the claim of the plaintiff, it is submitted by the Advocate for the defendant that the material elicited in the cross- examination of PW1 is totally contrary to the pleadings. The pleadings and the evidence is contrary to Ex.P1/Agreement. According to the plaintiff, the Ex.P1 is drafted by the Document Writer and not an Advocate. However, according to PW2, the Ex.P1/Agreement is drafted by the Advocate. In the Ex.P1/Agreement, there is no mention about the borrowing of the loan by the defendants by mortgaging the suit property. In the plaint, it is alleged that after execution of Ex.P1 and before filing the suit, the plaintiff came to know about the borrowing of loan from the Bank of India by mortgaging the suit property. In the cross-examination, PW1 has categorically admitted that he was well within 14 OS No.7463/2017 the knowledge of borrowing of loan by the defendants from Bank of India by mortgaging the suit property at the time of execution of agreement. The alleged Ex.P1 and 18 are created by the plaintiff by obtaining the signature of the defendants on a blank paper. It has come in the evidence of PW1 that as on 01.10.2015, the husband of plaintiff was in Hospital and therefore, the contention of the plaintiff that the defendants executed Ex.P1/Agreement cannot be believed. In addition, the plaintiff fails to prove the contents of Ex.P1 and 18 and no iota of evidence produced to show that the plaintiff had paid Rs.10 lakhs and he has balance amount to the tune of Rs.25 lakhs. The plaintiff has not complied with the provisions of Sec.16(c) of the Specific Relief Act regarding ready and willingness. On the face of the record, Ex.P1 and 18 are not enforceable documents and therefore, the suit of the plaintiff fails. Hence, prayed to dismiss the suit.
15. In have gone through the judgment relied on by the learned Counsel for plaintiff and kept in mind the view taken in the said judgment while appreciating the evidence on record and coming to the final conclusion.
15 OS No.7463/2017I respectfully agree with view taken in the said judgment.
16. Before considering the case on merits it is necessary to the dictum lay down by the Hon'ble Apex Court and Hon'ble High Court of Karnataka. It is settled law that the plaintiff must succeed or fails on his own case and cannot take advantage of the weakness of the defendant's case to secure a decree. Whenever, a party approaches the Court for the relief, based on the pleadings and issues, has to prove his case. A suit has to be decide on the merits and demerits of the party who approaches the Court. Weakness of the defendant cannot be considered as a trump card for the plaintiff. In this regard, a reference may be made by a decision reported in; 1) 1998 SAR (Civil) 390 (Punjab Urban Planning and Dev. Authority V. M/s Shiva Saraswati Iron and Steel Re-rolling MiIlls) and 2) 2004(1) KCCR 662 (K. Gopala Reddy (deceased) by LRs Vs. Suryanarayana and others).
17. In the light of the submission of both sides and material available on record, let me see the issues in detail.
16 OS No.7463/201718. Issue No.1:- It is the definite case of the plaintiff that the defendants agreed to sell the suit property in his favor by executing Ex.P1/Agreement of Sale dated 01.10.2015 for consideration of Rs.35 lakhs and received Rs.10 lakhs as an earnest money. Per contra, it is the definite defence of the defendants that they never executed any Agreement of Sale and not received any earnest money as claimed by the plaintiff in the plaint. It is settled rule of evidence that the burden is on the person who asserts in affirmative. In the present case, plaintiff asserts that the defendants have executed Ex.P1/Agreement agreeing to sell the suit property for consideration of Rs.35 lakhs and received Rs.10 lakhs as an earnest money. Therefore, the entire burden is on the plaintiff to prove the said assertions. If the answer is in affirmative, then the questions of considering other aspects alleged by the plaint arise. If the answer is in negative, the suit is liable to be dismissed.
19. Now, the question is whether the plaintiff able to prove that the defendants executed Ex.P1/Agreement of Sale agreeing to sell the suit property for consideration 17 OS No.7463/2017 of Rs.35 lakhs and received Rs.10 lakhs as an earnest money. In order to prove the said assertion, the plaintiff has placed reliance on the oral evidence of PW1, PW2 and documentary evidence Ex.P1. No doubt it is true that the plaintiff who has been examined as PW1 has reiterated the allegations made in the plaint with regard to the execution of Ex.P1/Agreement and about receipt of advance sale consideration of Rs.10 lakhs in his oral evidence and relied on Ex.P1/Agreement of Sale.
20. Section 61 deals with proof of contents of documents. The contents of documents may be proved either by primary or secondary evidence. Mere marking a document as an 'exhibit' will not absolve the duty to prove the documents in accordance with the provisions of the Evidence Act. The legal position is not in dispute that mere production and making of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence. In this regard it is useful to refer 2003 (8) SCC 745. In AIR 1971 SC 1865 (Sait Tarajee Khim Chand and Ors. Vs. Yelamarti Satyam and Anr.) it 18 OS No.7463/2017 was held that mere marking of document as exhibit does not dispense with its proof.
21. To ascertain as to whether the plaintiff discharged his burden it is necessary to see the plaintiff's pleading, oral evidence and documentary evidence produced on record by the parties to the suit. In pleadings plaintiff has pleaded that defendant has executed a sale agreement in respect of the suit schedule property on 01.10.2015 for sale consideration of Rs.35 lakhs. There are three defendants in the suit and the plaintiff has note pleaded among three defendants which defendant executed a sale agreement dated 01.10.2015. Further plaintiff has pleaded that on the date of executing the sale agreement by the defendants the plaintiff has paid Rs.10 lakhs in the presence of witnesses. The plaintiff has not specifically pleaded among three defendants to which defendant he had paid earnest money of Rs.10 lakhs. It is significant to note there is not pleading in the plaint that who was the owner of the suit property as on the date of the execution of Ex.P1/Agreement and who executed the said document in his favor. In plaint at some places singular 'defendant' word is used and in 19 OS No.7463/2017 some places plural 'defendants' word is used. However, during the course of evidence PW1 has not deposed in accordance pleadings.
22. It is equally important to note that no documents produced by the plaintiff to demonstrate that as on the date of the execution of Ex.P1/agreement defendants were the owners of the suit schedule property and as owners of the suit property defendants have right to execute the sale agreement and therefore, defendants have executed Ex.P1/ agreement.
23. On perusal of Ex.P1/Agreement of Sale it is noticed that it bears date as 01.10.2015. As per the recitals of the said document, the plaintiff is the purchaser, defendant No.1 is the seller and said defendant No.1 alone has right over the said property, sale consideration was fixed as Rs.35 lakhs and the plaintiff paid an earnest money of Rs.10 lakhs to the defendant No.1, time is fixed to execute the Sale Deed is 180 days (6 months) from the date of execution of agreement, the suit property is not mortgaged and free from encumbrance.
20 OS No.7463/201724. As against the recitals of Ex.P1/agreement of sale, in the plaint it is alleged that after execution of Ex.P1/Agreement of Sale, on 10.01.2018 the plaintiff came to know that the loan borrowed by the defendants by mortgaging the schedule property to the Bank of India and all the original documents are given to the Bank at the time of borrowing the loan. To ascertain the truthfulness of the evidence of PW1 in this regard it is necessary to go through the evidence given by the PW1 before the Court on oath. For the sake of convenience, the relevant portion of Para-5 of the cross- examination is extracted and reproduced here under:-
ದಾವಾ ಆಸ್ತಿಯ ದಾಖಲೆಗಳು ಬ್ಯಾಂಕಿನಲ್ಲಿವೆ ಎಂದು ಪ್ರತಿವಾದಿ ಮತ್ತು ಆಕೆಯ ಗಂಡ ಹೇಳಿದ್ದ ರಿಂದಾಗಿ ಆ ಕ್ರಯ ಒಪ್ಪಂದ ಆಗುವ ಮೊದಲು ದಾವೆ ಆಸ್ತಿಯ ದಾಖಲೆಗಳನ್ನು ನೋಡಿರಲಿಲ್ಲ . ಆ ಆಸ್ತಿಯ ಮೇಲೆ ಸಾಲ ಇದೆ ಅದಕ್ಕೋಸ್ಕ ರ ದಾವಾ ಆಸ್ತಿಯ ದಾಖಲೆಗಳು ಬ್ಯಾಂಕಿನಲ್ಲಿವೆ ಎಂದು ಪ್ರತಿವಾದಿ ಮತ್ತು ಆಕೆಯ ಗಂಡ ನನಗೆ ಆಗ ಹೇಳಿದ್ದ ರು. ಆ ದಿನ ನಿಪಿ1 ರ ಪತ್ರ ಬರೆಯಲು ಬೇಕಾದ ಮುದ್ರಾಂಕ ಪತ್ರವನ್ನು ಯಾ ಹಸರಿಗೆ ಯಾವಾಗ ಖರೀದಿಸಲಾಗಿದೆ ಎಂದು ನನಗೆ ಈಗ ಗೊತ್ತಿಲ್ಲ . ಆ ಅಗ್ರಿಮೆಂಟ್ ನಲ್ಲಿ ದಾವಾ ಆಸ್ತಿಯ ಮೇಲೆ ಬ್ಯಾಂಕಿನಲ್ಲಿ ಸಾಲ ಇದೆ ಎಂದು ನಮೂದಿಸಲಾಗಿದೆ.
25. It is evident from the above evidence that the defendant and her husband have stated that the property documents are in the Bank and therefore, he 21 OS No.7463/2017 had not seen any documents prior to entering into Ex.P1/agreement there is mention in the Agreement that the borrowing of loan from the Bank by mortgaging the property. The above reproduced evidence falsifies the allegations made in the plaint that as on the date of execution of Ex.P1/Agreement of Sale, plaintiff was not having knowledge about borrowing of loan by the defendants by mortgaging the suit property.
26. The plaintiff examined witness as PW2, who is none other than the brother of defendant No.1. In his cross-examination, said PW2 clearly deposed that defendant No.1 by mortgaging the property to the Bank of India, borrowed the loan prior to 2015 and as on the date of execution of Ex.P1, the said loan was not cleared. The evidence of PW2 also makes it very clear that as on the date of execution of alleged Ex.P1/agreement the plaintiff was having knowledge that the loan was borrowed by mortgaging the suit property to the Bank. Even knowing the fact, there is no recitals made in that regard in Ex.P1/Agreement in that regard. Contrary to that there is mention in the agreement that the suit property is not mortgaged and 22 OS No.7463/2017 free from encumbrance. The above discussion clearly discloses that basically plaintiff has utterly fails to prove that defendants are the owners of the suit property as on the date of execution of alleged agreement of sale and defendants have executed Ex.P1/ sale agreement in respect of the suit schedule property dated 01.10.2015. Plaintiff also utterly fails to prove the plaint allegations to the effect that after execution of Ex.P1/Agreement of Sale, he came to know that the loan borrowed by the defendants on 10.01.2018 by mortgaging the schedule property to the Bank of India and all the original documents are given to the Bank at the time of obtaining the loan. The said plaint allegations made in the plaint remains intact without any proof.
27. As noted supra it is settled law that marking a document itself is not sufficient to prove the contents of the document. No doubt it is true that the defendant No.1 admitted her signature and the signature of defendant No.2 on Ex.P1, but according to defendant No.1 plaintiff and her brother i.e., PW2 in collusion with each other, taken the signature on a blank stamp paper 23 OS No.7463/2017 and got created Ex.P1 and Ex.P18. Under such circumstances, just because DW1 admitted her signature on Ex.P1 and Ex.P18, itself is not sufficient to prove the contents of the said documents. The burden is on the plaintiff to prove the contents of both the documents. The plaintiff fails to prove the contents of the documents for more than one reason.
28. First of all, the plaintiff has not pleaded anything about who was the owner of the suit property as on the date of the execution of Ex.P1/Agreement. Even in the examination-in-chief, PW1 has not anything in that regard.
29. Secondly, plaintiff has not produced any extract of the suit property to show the ownership of the suit property either as on the date of execution of Ex.P1/agreement of sale or on the date of filing of the suit. In the absence of any evidence with regard to who was the owner of the suit property as on 01.10.2015 and in the absence of specific pleading who entered into agreement with plaintiff and to whom he paid the money, only on bald plaint allegations without any supporting evidence it cannot be said that the plaintiff 24 OS No.7463/2017 entered into agreement with the owners of the suit property.
30. Thirdly, it has come in the evidence of PW1 that, he has not taken any legal opinion from the Advocate and Ex.P1 is drafted by the Document Writer. Whereas, according to the PW2, Ex.P1/document is drafted by the Advocate. There is a serious inconsistency in the evidence of PW1 and 2 with regard to the drafting of Ex.P1/agreement.
31. Fourthly, it has also come in the cross- examination of PW1 that on the instructions taken from defendant and her husband he given instructions to prepare Ex.P1/agreement and defendant No.1 has not given instructions to prepare Ex.P1. PW1 himself has purchased the bond papers to prepare the agreement in the name of defendant No.1. Ex.P1/agreement does not bear the signature of the Document Writer. Even knowing the fact that defendant borrowed loan by mortgaging the property form the Bank of India, PW1 has not made any enquiries with the said Bank and has not taken an permission from the Bank to enter into an Agreement in respect of the property. Even he did not 25 OS No.7463/2017 made any enquiry as to the balance due in respect of the said loan borrowed by the defendants.
32. Contrary to the evidence of PW1, it has come in the cross-examination of PW2 that he and plaintiff visited the Office of Advocate at Malleshwaram, on their instructions Ex.P1/agreement is drafted by Advocate and later they taken the signature in the house of defendant No.1. The material elicited in the cross- examination of PW1 and 2 it is evident that there is no role of any of the defendant to prepare disputed Ex.P1/ agreement. In other words none of the defendants have given instructions to prepare Ex.P1/agreement and PW1 got prepared alleged document on a bond paper purchased by him in the name of defendant No.1. On appreciation of the plaint allegations, the oral evidence of PW1 and 2 coupled with the Ex.P1, in the considered opinion of this Court, the plaintiff has utterly failed to demonstrate that the defendants agreed to sell the suit property in his favor for consideration of Rs.35 lakhs and executed Ex.P1/Agreement of Sale as alleged in the plaint.
26 OS No.7463/201733. Now the next question for consideration is whether plaintiff able to prove that on the alleged date he paid earnest money of Rs.10 lakhs to the defendants. To prove the said fact PW1 has placed reliance on his evidence, the oral evidence of PW2 and Ex.P1. In the plaint the plaintiff pleaded that he paid earnest money to defendants. In the examination chief PW1 has reiterated the said fact. Not specifically stated among three defendants to which defendant he paid the earnest money. It is not the case of the plaintiff in the plaint or in the examination in chief to the effect that he paid the earnest money of Rs.10 lakhs to the defendant No.1. In the cross-examination, PW1 in categorical terms stated that he has not paid the earnest money to the defendant No.1, however paid the earnest money to her husband Muniyappa. After receipt of Rs.10 lakhs, the said Muniyappa put the signature to the Ex.P1 as witness. On appreciation of plaint pleadings and oral evidence PW1 it is evident that plaintiff has not paid the earnest money to the defendant No.1
34. As per Ex.P1, the plaintiff paid the earnest money of Rs.10 lakhs to the defendant No.1. The oral evidence 27 OS No.7463/2017 given by PW1 is contrary to the recitals of Ex.P1. In view of the discussion made in above paragraphs the plaintiff fails to prove execution of Ex.P1.agreement as alleged in the plaint. It has come in the evidence of PW1 that husband of defendant No.1 Muniyappa put the signature to Ex.P1/agreement after receipt of Rs.10 lakhs earnest money as witness. On perusal of Ex.P1/ agreement, it is noticed that no signature of Muniyappa is found. The evidence given by PW1 falsifies that he has paid the earnest money of Rs.10 lakhs to the defendant No.1. If at all he has paid the earnest money to the defendant No.1, nothing was prevented him to plead specifically said fact in the plaint.
35. It is equally important to note that the PW2, in his examination-in-chief has stated that as per the allegation made in the plaint, the earnest money of Rs.10 lakhs has been received by the defendant. Admittedly, in this case, the defendants are more than one and he has not stated which of the defendant has received the earnest money. The evidence of PW2 is also no way helpful to the plaintiff to prove the Agreement as well as the payment made by the plaintiff 28 OS No.7463/2017 to the tune of Rs.10 lakhs towards earnest money. On appreciation of material placed on record, in the opinion of this Court no iota of evidence to demonstrate that he paid Rs.10 lakhs the plaintiff towards earnest money.
36. On appreciation of oral and documentary evidence placed on record plaintiff has proved the signatures of defendant No.1 and 2 on Ex.P1 but utterly failed to prove the contents of Ex.P1. The inconsistencies pointed out in the pleadings, documents and the evidence of PW1 and 2 clearly discloses that the plaintiff has utterly failed to prove the issue No.1 and the allegations made in the plaint in that regard remains intact without any proof. For the reasons discussed above, I answered this issue No.1 in the negative.
In view of my finding on issue No.1 plaintiff fails to prove the contents of Ex.P1/agreement of sale. Hence, this issue No.2 and 3 does not survive for consideration. However, as per Order 14(2) CPC this Court is under obligation to record finding on these issues.
29 OS No.7463/201737. Issue No.2:- It is the definite case of the plaintiff that defendants have executed Ex.P18/Extension Agreement on 29.07.2016, stating that they want time till 30.04.2017 for executing the Sale Deed in respect of the schedule property. The said Extension Agreement is got marked through PW2. On perusal of the said document, it is noticed that there are some corrections in the said document, but there is no initial for the said corrections. The said fact has been admitted by PW2 in his cross-examination. According to plaintiff, the defendants have executed the said Ex.P18/Extension Agreement. In this case, there are in all three defendants Annapurna, Sushma and Swathi. On perusal of Ex.P18/Extension Agreement, it is noticed that the said document has not been signed by defendant No.2 and 3. As noted supra, mere admitting the signature by the defendant No.1, itself is not sufficient to prove the contents of the said document. The burden is on the plaintiff to prove the contents of the document by placing admissible evidence. In the said document, the names of defendants or the plaintiff has not at all been mentioned. On reading of the document it cannot be said that defendants have 30 OS No.7463/2017 executed the Ex.P18/ Extension Agreement as alleged in the plaint. The said allegations made in the plaint remain intact without any proof. Hence, for the reasons discussed above, I answered this issue in the negative.
38. Issue No.3:- In view of my finding on issue No.1 plaintiff fails to prove the contents of Ex.P1/agreement of sale. Even for the sake of arguments it assumed that the plaintiff proved the execution of agreement of sale, the question is whether plaintiff was always ready and willing to perform his part of contract.
39. Plaintiff has filed this suit for the relief of specific performance of contract. The plaintiff has pleaded that he was always ready and willing to perform his part of contract. He is ready to pay the balance consideration and to take the Sale Deed in respect of the schedule property as per the terms of Ex.P1/agreement of sale. Even after repeated requests defendants not ready to receive the balance consideration of Rs.25 lakhs and avoiding executing the Sale Deed in his favor in terms of the Ex.P1/ Agreement of sale. No doubt the PW1 has reiterated the said assertions in his oral evidence 31 OS No.7463/2017 but, absolutely nothing has been produced to prove the said assertion.
40. In R.C. Chandiok v. Chuni Lal Sabharwal (1970) 3 SCC 140, the Hon'ble Apex Court observed that "readiness and willingness cannot be treated as a straitjacket formula and the issue has to be decided keeping in view the facts and circumstances relevant to the intention and conduct of the party concerned". The same view was reiterated in D'Souza v. Shondrilo Naidu, (2004) 6 SCC 649. In N.P. Thirugnanam v. R. Jagan Mohan Rao (Dr) (1995) 5 SCC 115, the Court found that the appellant was dabbling in real estate transaction without means to purchase the property and observed:-
"Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To 32 OS No.7463/2017 adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract."
41. In the light of the views taken by the Hon'ble Apex Court let me peruse the material placed on record by the plaintiff and ascertain whether the amount of balance consideration which he has to pay to the defendants has available with him right from the date of the execution till date of the decree. In order to demonstrate the availability of balance consideration no iota of evidence placed by the plaintiff. In the cross examination, PW1 in categorical terms admitted that he 33 OS No.7463/2017 agreed to pay balance amount within three months. He has not produced any documents to show that he had an amount of Rs.25 lakhs in those three months or as on the date of the filing of the suit. Even after such serious dispute raised by the defendant about readiness of the plaintiff, no steps have been taken by the plaintiff to prove that she was always ready and willing to perform his part of the contract. Mere pleading and giving evidence on oath in examination in chief itself is not sufficient to prove that he had sufficient fund to pay the balance consideration to the defendants. Absolutely nothing has been produced by the plaintiff to show the availability of balance consideration with him to pay the same to the defendant right from the date of agreement till filing of the suit.
42. PW1 in his evidence has produced the account extract maintained in Canara Bank, list of Policy Account issued by the Post Office and seven endorsement issued by Postal Department at Ex.P9 to
17. Ex.P9/account extract pertains for the period from 01.07.2015 to 03.10.2015. As per the said document, as on 31.10.2015, the plaintiff had a balance of 34 OS No.7463/2017 Rs.2,19,435/-. Ex.P10/list of Policy Account issued by the Post Office is no way helpful to the plaintiff to prove that he has required fund with him to complete the sale transaction. Ex.P11 to 17/Postal Department issued 7 endorsements i.e., dated 04.09.2012, 06.06.2013, 06.06.2013, 19.02.2013, 07.06.2013, 02.02.2013 and 07.06.2013 respectively in respect of endorsement produced at Ex.P10. All the above said documents pertain prior to entering into an Ex.P1/Agreement. The burden is on the plaintiff to prove about the possessing of Rs.25 lakhs as on the date of the filing of the suit to complete the transaction. Absolutely no iota of evidence produced by the plaintiff to show that he had Rs.25 lakhs with him to complete the transaction as pleaded in the plaint. If really the amount was available with the plaintiff, nothing was prevented to demonstrate the same by placing admissible positive evidence. It is for the plaintiff to prove that right from the date of agreement the balance consideration is available with him. It is not necessary for the plaintiff to show that he has hard cash but it is for the plaintiff to show that he has so much of money with him and at any point of time he has capacity to pay the balance consideration.
35 OS No.7463/2017On appreciation of material placed on record, having regards to the conduct of the plaintiff and the attending circumstances, in the considered opinion of this Court the evidence placed on record by the plaintiff is not sufficient to prove that he was always ready and willing to perform his part of the contract and he has had sufficient fund to pay the balance consideration to the defendants as per Ex.P1/agreement. The assertion of the plaintiff to the effect that he was always ready and willing to perform his part of the contract remains intact without any proof. For the reasons discussed above I answer this issue No.3 in the negative.
43. Issue No.4 and 5:- In view of my findings on above issues No.1 to 3, the plaintiff is not entitled either for the relief of specific performance of contract or is entitled to the refund of earnest money with interest. Accordingly, I answer the issue No.4 and 5 in the negative.
44. Issue No.6:- In view of my findings on above issues No.1 to 5, I proceed to pass the following:-
36 OS No.7463/2017ORDER The suit filed by the plaintiff against defendants No.1 to 3 for the relief of specific performance of contract or for refund of earnest money with interest is dismissed with costs.
Draw decree accordingly.
(Typed by the Judgment Writer on my dictation, the transcript revised, taken print out, corrected and then pronounced by me in open court on this the 15th day of February 2023) (A.V.PATIL) LXIII Addl. City Civil and Sessions Judge, (CCH-64), Benglauru City.
ANNEXURE
1. List of witnesses examined for the plaintiff:-
PW1 P.S.Balagangadhara PW2 N.Narasimha Murthy
2. List of witnesses examined for defendant:-
DW1 Annapurna
3. List of documents marked for the plaintiff:-
Ex.P1 Sale Agreement dated 01.10.2015
Ex.P2 Office copy of legal notice
Ex.P3 to 5 Three postal receipts
37 OS No.7463/2017
Ex.P6 RPAD acknowledgment
Ex.P7 Encumbrance Certificate
Ex.P8 RPAD returned cover
Ex.P9 Statement of Bank Account
Ex.P10 to 17 Letters issued by the Post Office to the
plaintiff
Ex.P18 Agreement
4. List of documents marked for defendants:-
Ex.D1 Laboratory requisition slip-1
Ex.D2 Certificate issued by the Doctor
Ex.D3 Statement of Bank account
Ex.D4 True copy of FIR
Ex.D5 Death Certificate of Muniyappa.N
(A.V.PATIL)
LXIII Addl. City Civil and Sessions
Judge (CCH-64), Benglauru City.