Bangalore District Court
Mr.Anand Naik vs Mr.P.Subramani on 2 July, 2019
(C.R.P. 67) Govt. Of Karnataka
TITLE SHEET FOR JUDGEMENTS IN SUITS
Form No.9 (Civil)
Title sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF LVIII ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY (CCH.NO.59)
Dated, this the 02nd day of July, 2019.
PRESENT
Smt.Geetha.K.B, M.A.,LL.B.,
LVIII Addl. City Civil & Sessions Judge (CCH-59),
Bengaluru.
O.S.No. 6758/2015
PLAINTIFF: Mr.Anand Naik,
Aged about 41 years,
S/o.Narayan Naik,
Residing at Flat bearing No.303,
Jay Paradise,
Govindappa lay out, 10th Cross,
Kodihalli, Bangalore-560 008.
(By Sri.Narayana Reddy, Advocate)
VERSUS-
DEFENDANT: Mr.P.Subramani,
Aged about 39 years,
S/o. late Pillapa,
Residing at No.20, 3rd Floor,
Appareddy Palya, Indiranagar,
Bangalore-560 038.
(By Sri.K.Ramegowda, Advocate)
2 O.S.6758/2015
Date of institution of the suit : 03.08.2015
Nature of the suit (suit on pronote, Specific Performance
suit for declaration and possession
suit for injunction, etc) :
Date of the commencement of 22.09.2017
recording of the evidence :
Date on which the Judgment was 02.07.2019
pronounced :
Total duration Year/s Month/s Day/s
03 10 29
JUDGMENT
The plaintiff has filed the suit praying for specific performance of sale agreement dated 26.03.2012 directing defendant to execute registered sale deed in respect of suit 'B' schedule property in favour of plaintiff and to put plaintiff in possession of suit schedule property; for court costs and in alternative if in the event this court comes to the conclusion that specific performance of the agreement cannot be granted, alternatively, direct the defendant to repay advance amount of Rs.7,50,000/- with interest at 18% per annum from the date of suit till repayment and for such other reliefs.
2. The case of plaintiff in nutshell is that one Sri Muniyappa @ Papaiah Reddy was owner of the property bearing No.5, BBMP 3 O.S.6758/2015 Katha No.32 total measuring East to West 23 ft. and North to South 90 ft. i.e., 2070 sq.ft., along with open space measuring East to West 10 ft. and North to South 15 ft., situated at Appareddy Palya, Indiranagar, Ward No.72, Bangalore i.e., the suit 'A' schedule property. Muniyappa died intestate on 06.12.1984 leaving behind his children Sri Pillappa and Smt. Parvathamma. Afterwards, khatha of said property was mutated into the name of his son Pillappa. Pillappa and his wife Sarojamma had three children i.e., P.Anand Reddy, defendant (P.Subramani) and Rathnamma. P.Anand Reddy and the defendant partitioned suit 'A' schedule property and other properties under registered partition deed dated 20.05.2006. The suit 'A' schedule property was divided into two portions. Later Pillappa died intestate on 15.06.2011. Though there was partition, khatha of suit 'A' schedule property was still continued in the name of Pillappa. Defendant and P.Anand Reddy represented plaintiff that they are absolute owners of suit 'A' schedule property and they got absolute right, title and interest in it and offered to sell it to plaintiff for their dire need of money. After deliberate discussions and negotiations, plaintiff agreed to purchase suit 'A' schedule property from defendant and P.Anand Reddy and they have executed an agreement to sell dated 26.03.2012 in favour of plaintiff agreeing to sell for total consideration of Rs.81,00,000/- and they each received 4 O.S.6758/2015 amount of Rs.5,00,000/- each from plaintiff through cheques. Out of the balance of sale consideration, it was agreed that Anand Reddy shall receive amount of Rs.42,00,000/- and defendant shall receive amount of Rs.29,00,000/- from the plaintiff proportionate to the extent of their ownership in suit 'A' schedule property. They have also undertaken that they secure their sister Smt.Rathnamma as a consenting witness to the sale deed and agreed to get khatha bifurcated in their individual names. There were some disturbances in the partition deed. Hence, defendant and Anand Reddy entered into registered Rectification deed dated 30.06.2012. Under said Rectification deed, suit 'A' schedule property was bifurcated into three portions. Accordingly, khatha is bifurcated into khatha Nos.32, 32/1 and 32/2. The khatha No.32 was allotted to Anand Reddy and 32/1 and 32/2 were allotted to defendant. In terms of the agreement of sale, Anand Reddy and defendant got registered Release Deed dated 26.12.2012 from Smt.Rathnamma in respect of suit 'A' schedule property. Plaintiff has paid Rs.4,00,000/- out of the balance sale consideration amount under agreement of sale to Smt.Rathnamma for release of her rights over suit 'A' schedule property. Plaintiff incurred the expenses of registration of this Release Deed and Rectification Deed. Defendant and Anand Reddy postponed the execution of sale deed on one or the other pretext. 5 O.S.6758/2015 Hence, plaintiff got issued legal notice dated 08.10.2012 to defendant and Anand Reddy. It was served upon Sri Anand Reddy, but defendant avoided to receive the notice and thus it was return unclaimed. Sri Anand Reddy complied with the legal notice and has executed registered sale deed in respect of his portion of property measuring East to West 25 ft. and North to South 45 ft. totally measuring 1125 sq.ft., along with common passage right measuring East to West 5 ft. and North to South 45 ft. under registered sale deed dated 30.01.2013 by receiving the balance sale consideration in favour of plaintiff and his brothers. Thus plaintiff paid Rs.5,00,000/- advance amount under the agreement to the defendant and he also paid additional amount of Rs.2,50,000/- towards release of rights of Smt.Ranthnamma in respect of suit schedule 'B' property which is acknowledged by the defendant. Even after receipt of this subsequent amount, defendant has not come forward to execute the sale deed and not produced the relevant documents to plaintiff. Plaintiff is always ready and willing to perform his part of the obligation that is to pay balance sale consideration and to obtain the registered sale deed from the defendant. Defendant earlier was postponed to execute the document and then he keeps on avoiding the execution of sale deed with dishonest intention and thereby caused wrongful loss to plaintiff. Plaintiff 6 O.S.6758/2015 approached the middlemen to resolve the dispute. Several sittings were held between parties from January, 2013 to December, 2014. At last, defendant refused to execute the sale deed. Hence, the suit for appropriate reliefs.
3. Defendant appeared through his counsel and filed written statement wherein he contended that the suit is false, frivolous, vexatious and not at all maintainable either in law or on facts and it is hopelessly barred by Limitation. There is no cause of action for plaintiff to file this suit. Plaintiff undervalued the suit and Court Fee paid is insufficient; this court has no jurisdiction to entertain the suit. The agreement of sale dated 26.03.2012 is illegal, under valued and not at all enforceable in the eye of law. It was got typed only on stamp paper worth of Rs.20/-. On the alleged date of agreement of sale the required stamp duty was not paid on the document, but on 23.03.2015, he might have obtained the certificate under Sec.41 of the Karnataka Stamp Act, 1957. This shows that agreement was not intended to be acted upon. In the alleged sale deed dated 30.01.2013, there is no whisper about the sale agreement dated 26.03.2012. The parties to the sale deed were not parties to this agreement, hence said sale deed is an independent transaction and nothing to do with this agreement of sale. Hence, it 7 O.S.6758/2015 was not acted upon and not intended to be acted upon. The plaintiff intended to grab the property and blackmail the defendant and only to harass him, dragged him to the court of law. He denied all the other averments made in the plaint. But admitted about receipt of Rs.5,00,000/- through the cheque. Plaintiff was not at all ready and willing to complete the sale transaction within the time stipulated in the agreement. Defendant had fulfilled all the obligations mentioned in the agreement including clauses 4.6 and 4.7. Time was the essence of contract. Plaintiff had not come forward to complete the sale transaction and thus the agreement automatically stood terminated and defendant forfeited the advance amount paid by the plaintiff. Plaintiff agreed for it and kept quiet. Surprisingly and at the instigation of some vested interest in the year 2015, he filed the present suit. Except receiving advance amount of Rs.5,00,000/-, defendant has not received any other amount from plaintiff. He does not know about legal notice dated 08.10.2012. In collusion with postal authorities, plaintiff might have obtained endorsement on the postal cover 'as not claimed'. Hence, prayed for dismissal of the suit with costs.
4. Based on the above pleading, the following issues & an additional issue were framed by this court.
8 O.S.6758/2015
1. Whether the plaintiff proves that defendant along with P.Ananda Reddy has jointly executed agreement of sale dt:26.03.2012 in his favour agreeing to sell suit 'A' schedule property for a sale consideration of Rs.81,00,000/- and defendant received advance amount of Rs.7,50,000/- as alleged?
2. Whether the plaintiff proves that under registered rectification deed dt:30.06.2012 executed between defendant and his family members suit 'B' schedule property was allotted to the share of the defendant?
3. Whether the defendant proves that agreement of sale dt:26.03.2012 is a unvalued document not enforceable in law?
4. Whether the plaintiff proves his readiness and willingness to perform his part of the contract?
5. Whether the suit of the plaintiff is barred by limitation?
6. Whether the suit is properly valued for the purpose of payment of court fee?
7. Whether the plaintiff is entitled for the relief specific performance of contract sought for?
8. What order or decree?
Additional Issue Whether the plaintiff is entitled for alternative relief of refund of earnest amount sought for?
5. On behalf of plaintiff, plaintiff is examined as P.W.1, examined a witness as P.W.2, got marked Ex.P.1 to Ex.P.20 and 9 O.S.6758/2015 closed his side. On behalf of defendant, defendant is examined as D.W.1 and closed his side.
6. Heard arguments of both sides.
7. Findings of this court on the above issues are as under
Issue No.1:- Partly in the Affirmative; Issue No.2:- In the Affirmative;
Issue No.3:- In the Negative;
Issue No.4:- In the Affirmative;
Issue No.5:- In the Negative;
Issue No.6:- In the Affirmative;
Issue No.7:- In the Affirmative;
Additional Issue:- In the Affirmative; Issue No.8:- As per the final order for the following:-
REASONS
8. ISSUE No.1:- The contentions of plaintiff is that defendant and Ananda Reddy being the absolute owners of suit 'A' schedule property have agreed to sell suit 'A' schedule property for a sum of Rs.81,00,000/- to plaintiff and received advance amount of Rs.5,00,000/- each and executed agreement of sale dated 26.03.2012. In this regard plaintiff has produced the original agreement for Ex.P.1 dated 26.03.2012. It is stated in the agreement 10 O.S.6758/2015 that defendant and his brother Anand Reddy became owners of suit 'A' schedule property by virtue of registered partition deed and both the defendant and his brother Anand Reddy signed the agreement and two witnesses also signed the agreement. Plaintiff also examined one of the attesting witness to the agreement as P.W.2. He has also stated in his examination-in-chief regarding these facts. In the cross-examination P.W.2 deposed that he acted as mediator between plaintiff and defendant on 26.03.2012 regarding sale transaction between them. He puts signature to the sale agreement in the office of one Narayan Naik situated near ESI, Indiranagar. At the time, plaintiff, defendant, his brother Anand Reddy, Nagappa Naik and Narayan Naik were present and it was signed at about 05.00 p.m.
9. The above facts elicited in the cross-examination of P.W.2 and the facts recited in the agreement established that there was an agreement between plaintiff and defendant and Anand Reddy as per Ex.P1. Moreover, defendant in his written statement categorically admitted about receipt of Rs.5,00,000/- through the cheque mentioned in the sale agreement. In the cross-examination at para No.3 defendant categorically admitted that he and his elder brother put signatures to each page of Ex.P.1. He also admitted that, under 11 O.S.6758/2015 the agreement he received of Rs.5,00,000/- and Rs.29,00,000/- ought to be payable to him regarding sale consideration amount. He also admitted that he is in the habit of reading and understanding the documents and then putting signatures to them.
10. The above facts clearly prove that defendant and his brother P.Anand Reddy jointly executed agreement of sale dated 26.03.2012 in respect of suit 'A' schedule property for a total consideration amount of Rs.81,00,000/- and under the agreement, defendant has received the advance amount of Rs.5,00,000/-.
11. In the plaint, plaintiff contended that there are terms in the agreement that defendant and his brother shall obtain the consent of Smt. Paravathamma and Smt. Rathnamma and their signatures to the sale deed as consenting witnesses as per clause 4.6 of the sale agreement. It is the contention of plaintiff that Rathnamma has executed registered Release deed in favour of Anand Reddy and defendant by receiving Rs.4,00,000/- and said Rs.4,00,000/- was paid by plaintiff to said Smt.Rathnamma on behalf of defendant and his brother Anand Reddy towards part of the sale consideration amount. In this regard plaintiff has produced the certified copy of said registered Release deed as per Ex.P.10 executed by Smt. 12 O.S.6758/2015 Rathnamma in favour of defendant and Anand Reddy. On perusal of this document, this court noticed that it is a registered document and executed on 26.03.2012 by Smt.Rathnamma in favour of defendant and Anand Reddy by receiving D.D. for Rs.4,00,000/- drawn on IDBI Bank, Indiranagar, Bengaluru in respect of suit 'A' schedule property. In this regard, in the cross-examination, D.W.1 at para No.4 admitted that Rathnamma has executed said Release deed as per Ex.P.10 in his favour and in favour of Anand Reddy. She puts signature to release deed releasing her rights in respect of suit schedule property in their favour. He admitted that he was present at the time of registration of said document. He also admitted that there is recital in said document that Rs.4,00,000/- was paid to Smt.Rathnamma through DD. He deposed that said amount of Rs.4,00,000/- was not paid from his bank account and he does not know how said amount came. He denied the suggestion that on his behalf and on behalf of Anand Reddy, said Rs.4,00,000/- was paid by plaintiff through his elder brother Nagappa Naik's account.
12. P.W.2 (Rajendra) is an attesting witness to this Release deed also. In the cross-examination at para No.6, D.W.1 deposed that said Rajendra is their neighbour and he puts signature to Release deed as witness and also puts signature to sale agreement. 13 O.S.6758/2015 He is in cordial terms with said Rajendra. P.W.2 in his affidavit evidence stated about execution of this Release deed on 26.03.2012 and is one of the attesting of witness to it. In the cross-examination P.W.2 deposed that on 26.03.2012 he puts signature to Release deed at Sub-register office, Shivaji Nagar and at that time defendant, his brother Anand Reddy, his sister Rathnamma, plaintiff his brothers and advocate Narayana Reddy was present and it was drafted by advocate Narayana Reddy.
13. The above facts clearly and categorically reveal that Rathnamma executed Release deed by receiving Rs.4,00,000/-; it was paid by plaintiff and his brothers. Defendant has not paid it.
14. Defendant and his brother have not executed the registered sale deed within stipulated time; hence, plaintiff has issued legal notice to defendant and his brother as per Ex.P.2 calling upon them to execute the registered sale deed. This notice is dated 08.10.2012. After receipt of this notice, defendant's brother came forward and executed the registered sale deed. Plaintiff has produced it is certified copy of said sale deed as per Ex.P.14. It is dated 30.01.2013. In this document, it is stated that Anand Reddy had received Rs.2,00,000/- from plaintiff by way of Bankers' cheque 14 O.S.6758/2015 bearing No.003394 dated 26.12.2012 drawn on IDBI Bank, Indiranagar, Bengaluru. Under Ex.P.10, Rathnamma received Rs.4,00,000/- only through the same Bankers' cheque bearing No.003394 dated 26.12.2012 drawn on IDBI Bank, Indiranagar Branch, Bengaluru. The coupled reading of these documents clearly establish that Rs.4,00,000/- paid by plaintiff to Rathnamma is towards part of the sale consideration amount. Out of this, Rs.2,00,000/- was deducted from the share of Anand Reddy and thus remaining amount is to be deducted from the share of defendant.
15. In this regard, learned counsel for the defendant submitted that as per the sale agreement, the sale consideration amount is not being equally distributed amongst defendant and his brother; hence the amount paid to Rathnamma also cannot be equally distributed between defendant and Anand Reddy. However, said arguments cannot be accepted for the simple reason that Rathnamma is the sister to defendant and his elder brother. She has got share in the property equal to that of defendant and Anand Reddy. When she is releasing her rights; then it is to be equally distributed between parties. Defendant was not agreed for it cannot be accepted at this juncture because defendant was present at the 15 O.S.6758/2015 time of execution of Release deed, he is also one of the parties to the Release deed and signed the Release deed. But he has not paid the amount to Rathnamma. Hence, it is to be held that this Rs.2,00,000/- paid Smt.Rathnamma on 26.03.2012 is to be considered as a part of sale consideration amount pertaining to the share of defendant. Moreover, defendant has not taken any such plea in the written statement. Only at the time of arguments, learned counsel for the defendant had taken this contention. The contention of defendant was only denial and not more than that in the written statement. Hence, the above arguments of learned counsel for defendant are not tenable.
16. In the plaint and also in the evidence, defendant has stated that he has paid Rs.50,000/- another advance amount to defendant by way of cash. However, defendant has not admitted the receipt of the said amount in this cross-examination. There is no document to prove the same. However, the learned counsel for plaintiff at the time of arguments files memo that he is restricting his claim of payment of advance amount only to Rs.7,00,000/-. Hence, this Court holds that plaintiff has proved that defendant received total advance amount of Rs.7,00,000/- from the plaintiff. Accordingly, issue No.1 is answered partly in the Affirmative. 16 O.S.6758/2015
17. ISSUE No.2:- In the plaint, plaintiff contended that there were some discrepancies in registered partition deed executed between defendant, his brother and father; hence they entered into the registered Rectification deed dated 30.06.2012 and in the document, suit 'B' schedule property was fallen to the share of defendant.
18. It is to be noted here that suit 'A' schedule property originally belonged to one Muniyappa; after is death, his khatha was mutated into the name of his son Pillappa. Then, Pillappa, defendant and Anand Reddy entered into a registered partition deed dated 20.05.2006 as per Ex.P.6. According to this document 'A' schedule property in the partition deed, which is not the present suit schedule property was fallen to the share of Pillappa; 'B' schedule property in the partition deed that is a portion of suit 'A' schedule property measuring East to West 23 ft. 6 inches and North to South 45 ft. was fallen to the share of Anand Reddy; 'C' schedule property in the said partition deed, i.e., East to West 9.3 ft. and not 57.06 ft. was fallen to the share of defendant. After entering in to this sale agreement, defendant and his brother noticed that there were some discrepancies regarding measurement of this property. At that time already their father Pillppa was no more, their mother - Sarojamma, 17 O.S.6758/2015 Anand Reddy and defendant entered into Rectification deed dated 30.06.2012 and got registered it. Plaintiff has produced certified copies of said partition deed and Rectification deed as per Ex.P.6 and P.7. In this Rectification deed, except the changes in the measurements of the total extent and the property fallen to the share of defendant and the common passage little bit; there were no changes made. According to the Rectification deed, 10 ft.X 45 ft. on Eastern side and 10 ft.X 45 ft. on Western side; totally measuring 450 Sq.ft. in each sides were fallen to the share of defendant and in between said properties, a common passage measuring 5 ft. X 45 ft. was left for the usage. This property is shown as 'C' schedule in the rectification deed. The same property is shown as suit 'B' schedule property in the present plaint. In the cross-examination defendant admitted that this property was fallen to his share in the family partition deed and in the Rectification deed. He admitted that, as khatha could not have been transferred through Ex.P.6, they entered into Rectification deed as per Ex.P.7 on 30.06.2012. He admitted that, on Northern side of said property, the property was sold by his elder brother Anand Reddy and his wife to plaintiff and his brothers is situated. These facts establish that suit 'B' schedule property was fallen to be share of defendant in the Rectification deed as per Ex.P.7. Accordingly, issue No.2 is answered in the Affirmative. 18 O.S.6758/2015
19. ISSUE No.3:- Defendant contended that the agreement of sale is an invalid document and not enforceable in law on the ground that Pravathamma and Rathnamma were also having rights over suit 'A' schedule property; they were not signatoriess to the sale agreement. Hence, it is not a concluded contract. In this regard, he relied on the citation reported in 1994 SCC Online Karnataka 345 Between T.Ramacjandraiah Vs. G.Nagappa Naidu Wherein their held as follows:
"Civil Procedure Code, 1908 - Suit for specific performance is decreed by the trial judge overlooking the fact and law - Appeal - The condition in original allotment agreement to the effect of bar to alienate and provision for damages in sale agreement in case of default was overlooked by trail judge - Held, where the title is imperfect or there is bar to the alienation and therefore, the title cannot be conveyed, it is not competent for a court to order specific performance - the only alternative is to compensate the aggrieved party by way of damages as a decree for specific performance would virtually be legally still-born and no Court can pass a decree that is virtually infructuous."
20. In the instant case as per the contention taken by plaintiff in the plaint and as per the recitals of partition deed and as per admission of the both sides, original owner sri Muniyappa has got a son Pillappa and daughter Parvathamma and they succeeded to his property. As the property was Muniyapp's, Parvathamma being his daughter got a share in this property. Hence, her consent 19 O.S.6758/2015 was required. In this regard in the agreement at clause 4.6, "both parties agreed that vendors agreed to secure to Parvathamma daughter of Muniyappa as consenting witness to the sale deed". In this regard in the sale deed executed by defendant brother as per Ex.P.14. This Parvathamma puts her signature as consenting witness in all the pages. Thus it cannot be said that the agreement between parties is not a complete transaction. Further, learned counsel for defendant contended that the measurement of suit schedule property and measurement in Rectification deed differ. There is 180 sq.ft. difference between both the deeds. Hence, the contract is not enforceable in law. However, it is to be noted here that at the time of entering in to this agreement of sale, as per recitals in the partition deed, total extent of suit 'A' schedule property was 23 ft. X 90 ft. Accordingly, the sale agreement was drafted. Only afterwards this measurement was changed as to 25 ft. X 90 ft. Hence, there is a little bit changes in the extent of property owned by defendant. However, when there is such a slight difference between the measurement and boundaries; always boundaries prevail over the measurement. There was no change in the boundaries of suit 'A' schedule property in the sale agreement as well as Rectification deed. Likewise, there is no change in the boundaries of the property which was fallen to the share of defendant under partition deed and 20 O.S.6758/2015 under Rectification deed. Hence, the said objection of defendant's counsel is also not tenable one. Hence, this Court holds that defendant failed to prove that agreement of sale is an invalid document and not enforceable in law. Accordingly, issue No.3 is answered in the Negative.
21. ISSUE No.4:- Plaintiff in the plaint at para No.14 stated that he is very keen to purchase the suit schedule property at the earliest, and already incurred huge commitment in that regard and he repeatedly requested defendant that he is always ready and willing to perform his part of the obligation i.e., to pay the balance sale consideration amount and to get registered sale deed from the defendant, but defendant postponed it; plaintiff was under the trust that defendant would execute registered sale deed in favor of plaintiff, but to his utter shock, surprise and dismay, the defendant kept avoided the execution of sale deed with dishonest intention and thereby caused wrongful loss to plaintiff.
22. In support of the above pleadings, plaintiff stated the above said facts in his affidavit evidence. In the cross-examination at para No.2, at page No.9 stated that, he and his wife are Software Engineers and from the savings, and from the amount given by his 21 O.S.6758/2015 brothers and from his investments, he paid the amount to defendant's brother for getting the sale deed. He was cross- examined in length pertaining to said Ex.P.14 itself and it was suggested to plaintiff that it was only nominal sale deed; however plaintiff denied those suggestions. In this regard in the cross- examination at para No.2, D.W.1 categorically admitted that towards North side of his property, presently, property of plaintiff and his brothers is situated; it was sold by his elder brother P.Anand Reddy and his wife to plaintiff and his brothers. Thus cross-examination of P.W.1 regarding sale deed executed by brother of defendant at para No.2 and 3 has no value in the eye of law.
23. Plaintiff has produced ICICI bank statement of account extracts of him and his wife, Mutual Funds' statement, HDFC Bank statement of account extract as per Ex.P.15 to P.18. Those documents are produced by him to show that he & his wife have kept some amounts in the bank. It is to be noted here that plaintiff need not keep the entire balance amount payable to defendant in his bank account, but if he proves that he is capable of paying balance sale consideration amount to defendant, that would be sufficient to hold that plaintiff is capable to get registered sale deed from the defendant. In this regard, in the cross-examination at para No.16 22 O.S.6758/2015 D.W.1 denied the suggestion that plaintiff demanded for execution of sale deed several times and also convened panchayaths several times. He also denied the suggestion that, plaintiff is capable of paying amount due to him. However, he categorically admitted that plaintiff is doing Engineering job in a Multi-National Company and his elder brother is doing business near suit schedule property. He does not know that plaintiff's wife is also doing the Engineering job; he does not know the financial status of plaintiff.
24. On perusal of the above facts stated by both parties and attitude of the defendant, they clearly establish that plaintiff is capable to pay the balance sale consideration amount to defendant and since from beginning, he was and is always ready and willing to perform his part of the contract.
25. It is to be noted here that in Ex.P.1 sale agreement, there were several covenants between parties. The covenants to be performed by defendant are that he has to get khatha of suit schedule 'B' property into his name; he has to pay of taxes, rates and all other outstandings pertaining to suit 'B' schedule property up to date of registration of sale deed; he has to satisfy his title to the schedule property by producing title documents before the advocate 23 O.S.6758/2015 of purchaser; he agreed to secure Smt.Parvathamma and his sister Rathnamma as consenting witnesses to sale deed and importantly he has to get khatha registered in his name in respect of the property before date of registration of sale deed.
26. In the instant of case, defendant has not fulfilled any of the above said conditions and informs the plaintiff regarding it. Amongst the above conditions, conditions No.4.6 and 4.7 and very important i.e., the defendant has to got consent of Parvathamma and Rathnamma and to get khatha into his name. However, defendant keep quiet for long time and not informed plaintiff that he got khatha into his name. Even till date of his cross-examination, he has not produced the khatha extract to prove the same.
27. In this regard, learned counsel for plaintiff relied on the citation reported in AIR 1997 SC 463 Between SC Pandurang Ganpat Tanawade and Ganpat Bhairu Kadam and others wherein their lordship held as follows:
"Specific Relief Act (47 of 1963), S.16 - "Ready and willing to perform" - Averment in plaint that purchaser sent registered notices to seller to execute sale deed - Further averment by buyer that as per agreement he is willing to pay fees required for sale deed, costs of registration and balance amount of sale deed - Statement in 24 O.S.6758/2015 deposition before Court by Purchaser that he had sent notices to seller and was willing to pay fees as aforesaid and balance amount immediately - Held, buyer not only averred but also proved that he was ready and willing to perform his part of contract as required under S.16(c)."
28. In this regard, learned counsel for plaintiff relied on another citation reported in (2012) 5 SCC 712 Narinderjit Singh and North Star Estate Promoters Limited wherein their lordship held as follows:
"A. Specific Relief Act, 1963 - S.16(c) - Readiness and willingness of plaintiff to perform his part of agreement of sale of land - To be decided with reference to conduct of parties, attendant circumstances and evidence on record.
-Appellant-defendant seller merely denied plaintiff's claim regarding his readiness and willingness to perform his part of agreement and also alleged that sale agreement was fictitious, without producing any evidence - Concurrent findings of courts below in favour of respondent- plaintiff buyer - Trial court after comprehensively analyzing pleadings and evidence of parties held that plaintiff succeeded in proving execution of agreement of sale and plaintiff's readiness and willingness to perform his part of agreement - But trial court, having declined to grant relief of specific performance by invoking S.20(2)(c), plaintiff filed appeal there against, while defendant failed to question findings rendered in favour of plaintiff by filing appeal or cross- objection in appeal preferred by plaintiff - First appellate court concurred with trial court's findings 25 O.S.6758/2015 regarding execution of agreement and plaintiff's readiness and willingness to perform but disagreed with trial court that plaintiff was not entitled to decree because of rise in price of land, and hence granted the decree - High Court in second appeal affirmed the view of first appellate court - Held, interference under Art.136 of the Constitution, not called for"
29. In the above said judgment, their lordship further held as follows:
"21. In R.C. Chandiok Vs. Chuni Lal Sabharwal11 this 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 reitereated in P.D'Souza Vs. Shondrilo Naidu12."
30. In this regard, learned counsel for plaintiff relied on another citation reported in AIR 2017 SC 3601 Between Parminder Singh and Gurpreet Singh wherein their lordship held as follows:
"Specific Relief Act (47 of 1963), S.16, S.20 - Specific performance of contract - Decree for - Discretion of Court Plaintiff establishing agreement as real, bona fide and genuine and thus capable of enforcement - Defendant failed to perform his part of agreement and thereby committed its beach - Concurrent findings of fact by Trail Court and Appellate Court in favour of plaintiff - No interference. Constitution of India, Art.136" - (Paras 13, 17, 19) 26 O.S.6758/2015
31. In the above said judgment, their lordship further held as follows:
"13. "Here is a case where all the three Courts, namely, Trail Court, first Appellate Court and the High Court concurrently held in favour of the respondent (plaintiff) and accordingly decreed his civil suit. In other words, all the three Courts, on appreciating the evidence in their respective jurisdiction and discretion, held that the defense taken by the appellant (defendant) was not proved. On the other hand, it was held that the respondent was able to prove that the agreement was real, bona fide and genuine and was thus capable of enforcement. Indeed, we find that the Courts below recorded this categorical finding of fact saying that the genuineness of the agreement was even admitted by the defendant's witnesses. The Courts below also recorded a finding that the respondent was ready and willingness to perform his part of the agreement and, in fact, performed his part of the agreement whereas the appellant failed to perform his part of the agreement and thereby committed its breach."
32. In this regard, the learned counsel for plaintiff relied on the citation reported in 2018(1)KCCR 863 C.Padmavathi and R.Punyavathi, wherein their lordship held as follows:
"Whether the plaintiff was always ready and willing to perform her part of contract and she kept on requesting the first defendant to receive the balance sale consideration and execute the sale deed will be within the personal knowledge of the first defendant. The first defendant neither appeared 27 O.S.6758/2015 and filed any written statement nor is examined as a witness for the third defendant to deny such claim of the plaintiff. It is not her case that the plaintiff was incapable of paying the balance sale consideration. In the absence of any such denial by the first defendant, the third defendant contention on that aspect becomes unacceptable".
33. In this regard learned counsel for defendant relied on the citation reported in (2000) 6 SCC 420 Between Motilal Jain Vs. Ramdasi Devi (Smt) and others to held as follows:
"A. Specific Relief Act, 1963 - S,16(c) - Held, averment as to readiness and willingness in plaint is sufficient if the plaint, read as a whole, clearly indicates that the plaintiff was always and is still ready and willing to fulfil his part of the obligations
-Such averment is not a mathematical formula capable of being expressed only in certain specific words or terms - Where appellant-plaintiff had paid about two-thrids of the consideration settled at the time of execution of agreement for sale of suit property and had sent three notices to defendant- respondent, all of which was set out in the plaint, held, High Court erred in setting aside the decree of specific performance and substituting one for compensation -Civil Procedure Code, 1908, Appendix A of First Schedule, Forms 47 & 48."
34. In the above said citation, their lordship further held as follows:
"6. The first ground which the High Court took note of is the delay in filing the suit. It may be apt to bear in mind the following aspects of delay which are relevant in a case of specific performance of contract for sale of immovable property:28 O.S.6758/2015
(i) delay running beyond the period prescribed under the Limitation Act;
(ii) delay in cases where though the suit is within the period of limitation, yet:
(a) due to delay the third parties have acquired rights in the subject-matter of the suit;
(b) in the facts and circumstances of the case, delay may give rise to plea of waiver or otherwise it will be inequitable to grant a discretionary relief.
35. In this regard learned counsel for defendant relied on the citation reported in 1969(3) SCC 445 Between Jagad Bandhu Chatterjee Vs. Smt.Nilima Rani and Others wherein to held that:
"5. In India the general principle with regard to waiver of contractual obligation is to be found in Section 63 of the Indian Contract Act. Under that section it is open to a promise to dispense with or remit, wholly or in part, the performance of the promise made to him or he can accept instead of it any satisfaction which he thinks fit. Under the Indian law neither consideration nor an agreement would be necessary to constitute waiver. This Court has already laid down in Waman Shriniwas Kini V. Ratilal Bhagwandas & Co.2 that waiver is the abandonment of a right which normally everybody is at liberty to waive. "A waiver is nothing unless it amounts to a release. It signifies nothing more than an intention not to insist upon the right". It is well- known that in the law of pre-emption the general principle which can be said to have been uniformly adopted by the Indian courts is that acquiescence in the sale by any positive act amounting to relinquishment of a pre-emptive right has the effect 29 O.S.6758/2015 of the forfeiture of such a right. So far as the law of pre-emption is concerned the principle of waiver is based mainly on Mohammedan Jurisprudence. The contention that the waiver of the appellant's right under Section 26-F of the Bengal Tenancy Act must be founded on contract or agreement cannot be acceded to and must be rejected".
36. In the above said citations the principles noted by their Lordships is that readiness and willingness should be averred and prove by the plaintiff in accordance with law. If he had sent notice to seller and expressed his willingness to purchase the property; that it is sufficient to prove his readiness and willingness.
37. In this regard as discusses earlier, during 2012 itself i.e., on 08.10.2012, plaintiff issued legal notice as per Ex.P.2 to defendant and his elder brother. Defendant intentionally avoided it by not claming the notice. In this regard in cross-examination, he has deposed that he is and was residing in the same address which was mentioned in the postal cover. Hence, plaintiff has proved that he is and was always ready and willing to perform his part of the contract. In the cross-examination at para No.8 defendant admitted that it was his responsibility to get khatha of suit 'B' schedule property into his name and he does not know when he got to the khatha. He has not produced it. He has not given such document to plaintiff. 30 O.S.6758/2015
38. The above discussion proves that plaintiff has proved his readiness and willingness in performing his part of the contract. Accordingly, issue No.4 is answered in the Affirmative.
39. ISSUE No.5:- The sale agreement between plaintiff and defendant was executed on 26.03.2012. Three months time was fixed in the above said agreement to perform the respective obligations between parties. The only obligation upon plaintiff is to arrange the amount for getting sale deed. All other obligations are upon defendant. While discussing issue No.4, this court discussed about those obligations in length. The condition No.4.6 and 4.7 are important obligations and if any event of delay in complaining with such obligations, then the time for completion of the sale shall be extended mutually. Hence, time was not the essence of contract.
40. In the cross-examination at para No.8, defendant categorically deposed that he does not know when exactly he got khatha into his name. He has not informed the fact of change of khatha of 'B' schedule property into his name to plaintiff till the date of he giving above evidence, which was recorded on 02.11.2018. In these circumstances, definitely the period of limitation does not begin to run either from 26.03.2012 or from three months after said 31 O.S.6758/2015 date. In this regard, learned counsel for plaintiff relied on the citation reported in AIR 2005 KAR 292 Saraswathamma and H.Sharad Shrikhande and others wherein their lordship held as follows:
"Limitation Act (36 of 1963), Art.54 - Specific Relief Act (47 of 1963), S.20 - Suit for specific performance of agreement to sell -Limitation - Expression 'date fixed for performance ' under Art.54
-Has to be understood in context of agreement, obligations undertaken by respective parties in agreement - Vendor herself undertaking to put up construction and complete same within 90 days in all respects- Limitation starts to run when flat is reads vacant possession is kept ready to be handed over to vendee and if despite same vendor fails to hand over same."
41. In this regard, learned counsel for plaintiff relied on the citation reported in AIR 1991 KARNATAKA 119 Between Venkoji Rao Vs. M.Abdul Khuddur Kureshi, wherein their lordship held as follows:
"Limitation Act (36 of 1963), Art.54, S.9 - Suit for specific performance of agreement of sell - Limitation - Time for specific performance extended up to certain fixed date - Time again extended up to disposal of suit filed by first purchaser - Suit for specific performance filed within three years from decision in suit by first purchaser - Not time barred
- Suit not hit by S.9 of Limitation Act. Specific Relief Act (47 of 1963), S.20. Specific performance - Suit for
- Limitation.
Relying on the principles noted in the above said citations and for the above said reasons, this court holds that suit is filed within the 32 O.S.6758/2015 period of limitation. Accordingly, issue No.5 is answered in the Negative.
42. ISSUE No.6:- In the written statement, defendant to contentions that suit is not properly valued and court fee is insufficient. Plaintiff has filed the suit specific performance of the agreement and he valued suit U/S.38 of the Court Fee & suits Valuation Act and paid court fee of Rs.15,950/-.
43. As per Sec.38 of Karnataka Court Fee & Suits Valuation Act, the court fee is payable on the market value of the property that is on value of the property of defendant mentioned in the sale agreement. Accordingly, defendant paid the court fee. Hence, this court holds that court fee paid is sufficient and plaintiff has properly valued the suit. Accordingly, issue No.6 is answered in the Affirmative.
44. ISSUE NO.7:- While discussing issue No.1 to 4, this court already held that plaintiff has proved the execution of sale agreement between parities and also plaintiff has proved his readiness and willingness to perform his part of the contract. Defendant has not produced any evidence before the court to show 33 O.S.6758/2015 that the order of specific performance would cause him special damages. Hence, this court holds that plaintiff is entitled for specific performance of the contract as prayed in the plaint. Accordingly, issue No.7 is answered in the Affirmative.
45. ADDITIONAL ISSUE No.1:- In view of findings on issue No.7, this court holds that plaintiff is not entitled for alternative relief of refund of earnest amount as prayed in the plaint. Accordingly, this issue is answered in the Negative.
46. ISSUE NO.8:- In view of findings on issue Nos.1 to 7 and additional issue, this court proceeds to pass the following:
ORDER The suit is decreed with costs.
Specific performance of the agreement is granted in favour of plaintiff against defendant. Defendant is hereby directed to execute the registered sale deed in favour of plaintiff in respect of suit 'B' schedule property by receiving the balance sale consideration amount of Rs.27,00,000/- and to execute registered sale deed in favour of plaintiff before concerned Sub-Registrar and 34 O.S.6758/2015 also put plaintiff in possession of suit 'B' schedule property within thirty days from the date of the judgment.
Draw decree accordingly.
[Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me, in the Open Court on this the 02nd day of July 2019).
(K.B.GEETHA) LVIII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH-59), BENGALURU CITY.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFF:-
P.W.1 Anand Naik
P.W.2 K.Rajendra
LIST OF DOCUMENTS MARKED FOR PLAINTIFF:-
Ex.P.1 Agreement of sale dt:26.03.2012
Ex.P.1(a) Signature of defendant
Ex.P.1(b) Signature of P.W.2
Ex.P.2 Notice
Ex.P.3 & 4 Postal receipts
Ex.P.5 RPAD postal cover
Ex.P.5(a) Notice
Ex.P.6 Certified copy of Deed of Partition dt:20.05.2006
35 O.S.6758/2015
Ex.P.7 Certified copy of Deed of Rectification
Ex.P.8 Bank statement of accounts
Ex.P.9 Special notification letter
Ex.P.10 Certified copy of Release Deed
Ex.P.11 Khatha certificate
Ex.P.12 Khatha extract
Ex.P.13 Property Tax receipt
Ex.P.14 Certified copy of registered sale deed dt.30.01.2013
Ex.P.15 Bank statement of accounts
Ex.P.16 Bank statement of accounts for Smt.Rohini Naik,
dt:01.01.2012 to 28.02.2018
Ex.P.17 Bank statement of mutual funds statement for
plaintiff
Ex.P.18 HDFC Bank statement of accounts
Ex.P.19 Certified copy of registered marriage dt.30.01.2013
Ex.P.20 Provident Fund statement of account for wife of
plaintiff
LIST OF WITNESSES EXAMINED FOR DEFENDANTS:-
D.W.1 P.Subramani
LIST OF DOCUMENTS MARKED FOR DEFENDANTS:-
NIL
(GEETHA.K.B.)
LVIII ADDL.CITY CIVIL AND
SESSIONS JUDGE (CCH-59),
BENGALURU CITY.
36 O.S.6758/2015
Judgment pronounced in open Court
vide separate judgment.
ORDER
The suit is decreed with costs.
Specific performance of the agreement
is granted in favour of plaintiff against
defendant. Defendant is hereby directed to execute the registered sale deed in favour of plaintiff in respect of suit 'B' schedule property by receiving the balance sale consideration amount of Rs.27,00,000/- and to execute registered sale deed in favour of 37 O.S.6758/2015 plaintiff before concerned Sub-Registrar and also put plaintiff in possession of suit 'B' schedule property within thirty days from the date of the judgment.
Draw decree accordingly.
(GEETHA.K.B) LVIII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH-59), BENGALURU CITY.
In this regard a relied on reported (2003) 4 SCC 86 Between M.V.Shankar Bhat and another Vs. Claude Pinto since (Deceased) by Lrs. And Others wherein held to that:
A. Specific Relief Act, 1963 - Ss.20 & 9 - Conditional contract - Sale agreement subject to rectification - Will authorizing executor to sell the property and divide the sale proceeds equally among the co-heirs-legates but enjoining the executor to get the property partitioned if the legatees so desire - Agreement to sell the property entered into by the 38 O.S.6758/2015 respondent executor with proposed appellant purchaser not as sole executor of will but as a legatee and/or one of the heirs of the testator - Agreement made "subject to" ratification of the terms and conditions thereof by the co-heirs who were not parties to the agreement - plaintiff-appellant, a lawyer, also exercised undue influence by raising a scare in the mine of the executor - Held, there was no conclusive contract between the parties and the sale agreement could not be specifically enforced - Hence, court can exercise its discretionary jurisdiction by refusing specific performance - Words and phrases - "Conditional contract"
B. Contract Act, 1872 - S.10 - Agreement subject to ratification by others who are not parties to it is not a conclusive contract.
31. When an agreement is entered into subject to ratification by others, a concluded contract is not arrived at.
Whenever ratification by some other persons, who are not parties to the agreement is required, such a clause must be held to be a condition precedent for coming into force of a concluded contract.
32. The word "subject to" has been defined in Black's Law Dictionary, 5th Edn., at p.1278, inter-alia, as: "subservient, inferior, obedient to; governed or affected by; provided that; provided; answerable for". In Collins' English Dictionary the words "subject to" have been stated to mean as: "under the condition that: we accept, subject to her agreement". 39 O.S.6758/2015
40. In any event, having regard to the facts and circumstances of this case and in particular the subsequent events as well as conduct of plaintiff 1, we are of the opinion that it is not a fit case where the discretionary jurisdiction of this Court in terms of Section 20 of the Specific Relief Act, 1963 should be exercised. [See V.Muthusami Vs. Angammal7 and Nirmala Anand Vs. Advent Corpn. (P) Ltd.8] 1994 SCC Online Kar 345 between T.Ramachandraiah and G.Nagappa Naidu, wherein their lordship held as follows:
Civil Procedure Coe, 1908 - Suit for specific performance is decreed by the trial judge overlooking the fact and law- Appeal - The condition in original allotment agreement to the effect of bar to alienate and provision for damages in sale agreement in case of default was overlooked by trial judge- Held, where the title is imperfect or there is bar to the alienation and therefore, the title cannot be conveyed, it is not competent for a Court to order specific performance - The only alternative is to compensate the aggrieved party by way of damages as a decree for specific performance would virtually be legally still born and no court can pass a decree that is virtually infructuous.