Bangalore District Court
M/S Bkg Enterprises Llp vs M/S Subramanya Construction And ... on 15 October, 2024
KABC170179712020
IN THE COURT OF LXXXV ADDL. CITY CIVIL & SESSIONS
JUDGE, AT BENGALURU (CCH-86) (Commercial Court)
THIS THE 15TH DAY OF OCTOBER 2024
PRESENT:
SRI.ARJUN. S. MALLUR. B.A.L.LL.B.,
(CCH-86)
LXXXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Com.OS.No.265/2020
BETWEEN:
M/S BKG Enterprises LLP
No.2198, BKG House,
KHB Colony, Sandur Taluk,
Bellary District-583 119
Rep. By Its Partner Sri.B.Rudra Gouda
: PLAINTIFF
(Represented by Smt. Monica Patil., Advocate)
AND
M/S Subramanya Construction,
And Development Company Limited,
No.42, 2nd Main, 3rd Cross,
2 Com.OS.No.265/2020
Industrial Suburb,
Yeshwanthpur,
Bangalore -560022.
Rep. By Its Authorized Signatory
Mrs.Anitha Balasubramanyam
: DEFENDANT
(Represented by Sri.Sampath A. Advocate)
Date of Institution of the suit 08-10-2020
Nature of the suit (suit on
pronote, suit for declaration & Refund of advance sale
Possession, Suit for injunction
etc.) consideration
Date of commencement of 03-04-2024
recording of evidence
Date on which judgment was 15-10-2024
pronounced
Total Duration Year/s Month/s Day/s
04 00 07
(ARJUN. S. MALLUR)
LXXXV Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
Suit for refund of advance sale consideration of 3 Com.OS.No.265/2020 Rs.1,00,00,000/- with interest at 18% per annum and additional interest amounting to Rs.2,00,000/- per month at the rate of 2% on the advance amount of Rs.1,00,00,000/- commencing from 28.12.2016 and for liquidated damages amounting Rs.10,00,000/-
2. The case of the plaintiffs in brief is as under:-
The defendant had approached the plaintiff representing himself to be the owner two portions of the land offering the same for sale. The first portion of the land is measuring East to West 120 feet and North to South 80 feet totally measuring 9600 sq.ft bearing old site No.3 present No.59, PID No.27-77-59 situated at Block No.1, Kumar Park West Extension, Railway Parallel Road, BBMP Ward No.27, Bengaluru-560020. The second portion of the land is measuring East to West 19 sq.ft and North to South 80 sq.ft. which is abutting on the first portion of the property which is hereinafter referred as schedule property. After negotiations the plaintiff agreed to purchase the said property and the defendant after obtaining necessary sanction from BDA executed the Registered Sale Deed dated 04.11.2016 with respect to the first portion of the land. In so far as the second portion that is schedule property it was represented to the plaintiff that the said property is free from encumbrances 4 Com.OS.No.265/2020 and plaintiff agreed to purchase the same and an agreement of sale dated 20.12.2016 came to be executed in favour of the plaintiff by the defendant agreeing to sell the schedule property for a total sale consideration of Rs.3,42,00,000/-. The defendant received an advance sale consideration of Rs.1,00,00,000/- which is mentioned under Clause 2(b) and (c) of the agreement of sale. It is submitted that though the defendant represented to the plaintiff that he is in possession of the schedule property in fact there was no sale deed executed by BDA and defendant was required to obtain a sale deed prior to selling the suit schedule property to the plaintiff. The plaintiff believing the representations of the defendant acting in a bonafide manner paid the advance sale consideration so as to enable the defendant to obtain sale deed from BDA which is mentioned under clause 2(b) of the agreement. The advance sale consideration came to be paid in two installments. The first installment of Rs.50,00,000/- after deducting 1% towards TDS was remitted by way of RTGS on 30.11.2016 and the second installment of Rs.50,00,000/- after deducting 1% towards TDS was remitted through cheque dated 20.12.2016 which has been mentioned in the sale agreement. The defendant was required to execute the Registered sale 5 Com.OS.No.265/2020 deed on or before 31.01.2017 and put the plaintiff in possession of the schedule property.
3. Though the defendant was required to execute Registered Sale Deed on or before 31.01.2017 the defendant kept postponing the same and by email dated 29.05.2017 the defendant sought 15 days time to execute the sale deed and the plaintiff through letter dated 22.06.2017 called upon the defendant to execute the sale deed on or before 30.06.2017. It is submitted that the defendant failed adhere to the time lines stipulated under the agreement and during May 2018 the defendant informed the plaintiff that due to some interference by some miscreants in the possession over the schedule property he has filed a suit in O.S.No.3193/2018 before LVIII Additional City Civil and Sessions Judge, Bengaluru City(CCH-59). However no clarity was provided by the defendant with respect to the said litigation and on inquiry the plaintiff came to know that the defendant had filed the suit against BWSSB alleging interference with his possession over the schedule property. It is submitted that the defendant failed to provide any updates on the status of the litigation and as there was no progress with respect to the execution of sale deed, the plaintiff through letter dated 28.05.2018 called upon the defendant to 6 Com.OS.No.265/2020 refund the advance sale consideration with required interest as provided under the agreement. It is submitted that clause 28 of the agreement provides that if the seller fails to execute the sale deed in favour of the purchaser he is required to refund the advance sale consideration with interest at 18% per annun and also is required to pay interest at the rate of 2% per month on the advance sale consideration from the date of receipt of the amount till execution of the sale deed. It is submitted that the pendency of the litigation with respect to the schedule property clearly demonstrated that the defendant had no clear title over the said property and that the defendant had failed to take steps for disposal of the litigation and execute a sale deed in favour of the plaintiff. It is submitted that the defendant had acted in clear breach of the agreement and therefore he is liable to refund the advance sale consideration as prayed and also pay the liquidated damages amounting to Rs.10,00,000/-.
4. The plaintiff issued a demand notice dated 06.12.2019 calling upon the defendant to pay the suit claim within 30 days from the dated of receipt of the said notice. The defendant has issued an untenable reply to the said notice. The plaintiff prior to filing of the suit filed application for Pre Institution Medication under Sec.12(A) 7 Com.OS.No.265/2020 of the Commercial Court Act 2015 under PIM No.60/2020. The defendant though served with notice failed to appear before DLSA Bengaluru urban and the PIM proceedings were closed as a non-starter. Hence the suit.
5. The defendant has filed a detailed written statement wherein he admits entering into the agreement of sale with respect to the schedule property more fully described as a marginal land for a total consideration of Rs.3,42,00,000/- and having received advance sale consideration of Rs.1,00,00,000/-. The defendant had denied all other averments in the plaint and contends that the plaintiff for his requirement had approached the defendant for purchase of the schedule property and the larger portion of the land and on inspection of the property apart from agreeing to purchase the larger portion of the land it was the plaintiff who expressed desire to purchase the marginal land that is suit schedule property as it would facilitate as an easier approach for ingress and egress to the larger portion of the purchased property. It is submitted that after execution of the agreement of sale it was the plaintiff who raised unwanted and unnecessary demands denying the execution of the sale deed with respect to the schedule property and that the litigation with respect to the 8 Com.OS.No.265/2020 schedule property was was only a preventive litigation to restrain any interference in the possession by any third persons and the said litigation did not in any manner affects the rights of the defendant on the schedule property. It is submitted that the plaintiff has not shown due diligence in performing his part of the contract by coming forward to get the sale deed executed by paying balance sale consideration. It is submitted that the defendant was ready and willing to perform his part of the contract and only the plaintiff has not shown due diligence in getting the sale deed executed. On these grounds the defendant seeks for dismissal of the suit with exemplary cost.
6. The plaintiff has filed a rejoinder to the written statement wherein apart from reiterating what has been stated in the plaint the plaintiff contends that in the judgment passed in O.S.No.3193/2018 while dismissing the suit the Court has recorded particular findings that the sale executed by BDA in favour of the defendant with respect to the marginal land i.e., suit schedule property is a bogus document and as per the survey report the marginal land is in the possession of BWSSB whose property is situated next to the marginal land and that BDA without proper verification has executed a bogus sale 9 Com.OS.No.265/2020 deed and that there is judicial findings recorded to the effect that defendant has no right over the schedule marginal land and defendant is not in possession of the schedule property. It is submitted that the judgment passed in O.S.No.3193/2018 carrying the above said findings has reached finality as no appeal is preferred by the defendant against the said judgment and therefore the defendant is liable to refund the advance sale consideration with interest as prayed.
7. On the basis of the above pleadings this Court has framed the following issues:
ISSUES
1) Whether the plaintiff proves that defendant is entitle to refund the advance amount of Rs.1,00,00,000/- paid by plaintiff in pursuance of clauses II (b) & (c) of the agreement / written contract along with interest @ 18% per annum and additional interest @ 2% per month from 28.12.2016 till realization of the amount?
2) Whether the plaintiff further proves that he is also entitle to recover Rs.10,00,000/- from defendant by way of damages?
3) What order or decree?10 Com.OS.No.265/2020
8. The authorized partner of the plaintiff firm B. Rudra Gouda examined himself as P.W.1 and got marked documents at Ex.P.1 to P.22. The authorized signatory of the defendant has examined himself as D.w.1 got marked documents at Ex.D.1 to D.6.
9. The learned counsel appearing for the plaintiff has submitted written arguments with citations. Heard the learned counsel appearing for the defendant. Memo with citations are filed. Perused the entire material on record.
10. My answer to the above issues are as under:-
Issue No.1 : Partly in the Affirmative Issue No.2 : In the Affirmative Issue No.3 : As per final order for the following.
REASONS
11. ISSUE NO.1:- The defendant offering the schedule marginal property for sale and plaintiff agreeing to purchase the same under the agreement of sale dated 20.12.2016 for a total sale consideration of 11 Com.OS.No.265/2020 Rs.3,42,00,000/- and the plaintiff paying advance sale consideration of Rs.1,00,00,000/- which is paid in two installments of Rs.50,00,000/- one through RTGS and another through cheque is not in dispute. It is the specific contention of the plaintiff that the defendant without having any title over the schedule marginal land misrepresented the plaintiff to believe that he is ownership and possession of the schedule property and made the plaintiff to enter into the agreement by paying a huge advance consideration of Rs.1,00,00,000/-. Per contra the defendant would contend that as on the date of agreement he was in actual possession and enjoyment of the schedule marginal land and it is the plaintiff who did not come forward to get the sale deed executed and it is the plaintiff who has defaulted in performing his part of the contract. In response the plaintiff counsel would vehemently submit that as per the findings recorded by the Court in O.S.No.3193/2018 the defendant has no possession over the schedule marginal land and the schedule property does not belong to the defendant at all and it is in actual ownership possession of the BWSSB whose property is situated abutting the schedule property. The court has also recorded a finding that sale deed executed by BDA in favour of the defendant is a bogus document as neither the defendant nor his vendors had 12 Com.OS.No.265/2020 any right over the schedule marginal land.
12. The designated partner of the plaintiff firm examined himself as P.W.1 reiterating the averments made in the plaint. He has got marked documents at Ex.P.1 to P.22. Ex.P.1 is the web page extract with respect to the particulars of the defendant. Ex.P.2 is the certificate under sec.65 B of Indian Evidence Act with respect of Ex.P.1. Ex.P.3 is the original agreement of sale dated 20.12.2016. Ex.P.4 is the letter issued by the defendant for release of the advance amount dated 30.11.2016. Ex.P.5 are the documents with respect to remittance of Rs.1,00,00,000/- along with TDS certificate to the defendant. Ex.P.6 email of the plaintiff dated 12.12.2016. Ex.P.7 is the mail dated 29.05.2017. Ex.P.8 is t he plaintiff reply dated 22.06.2017. Ex.P.9 and P.10 are the certified copies of the plaint and written statements in O.S.No.3193/2018. Ex.P.11 is the letter dated 28.05.2018. Ex.P.12 is the reply letter with email dated 16.07.2018. Ex.P.13 is the demand notice dated 06.12.2019. Ex.P.14 is the reply sent to the demand notice by the defendant. Ex.P.15 is the application under PIM proceedings. Ex.P.16 is the non- starter report. Ex.P.17 is the certified copy of the judgment passed in O.S.No.3193/2018. Ex.P.18 is the online web extract with respect to the particulars of 13 Com.OS.No.265/2020 plaintiff company. Ex.P.19 is the certificate under Sec.65 B of the Indian Evidence Act with respect to Ex.P.18. Ex.P.20 to 22 are the photographs with respect to schedule property.
13. Against the evidence of the plaintiff the authorized signatory of the defendant Lohith C examined himself as D.W.1 and got marked documents at Ex.D.1 to D.6. In fact Ex.D1 to D.5 have been marked during the cross examination of P.W.1 they are the certified copies of the Registered Sale Deeds dated 07.08.2014, 16.03.2015, 14.03.2014, 06.08.2014 and 05.02.2018. The Ex.D5 is the sale deed with respect to the schedule property executed by BDA in favour of defendant. Ex.D.6 is the board resolution authorizing D.W.1 to depose on behalf of the defendant.
14. With this oral and documentary evidence on record the only issue that needs to be considered is whether as on the date of entering into the agreement under Ex.P.3 the defendant had title and possession over the schedule property. My answer to the said issue is in the negative. As already mentioned above plaintiff and defendant entering into an agreement under Ex.P.3 with respect to purchase of the schedule property being the marginal land 14 Com.OS.No.265/2020 abutting the major portion which was previously purchased by the plaintiff from the defendant is not in dispute. The total sale consideration and amount of advance sale consideration received by the defendant is also not in dispute. In other words the subject matter of the agreement of sale at Ex.P.3 is not in dispute between the two parties.
15. The plaintiff contends that it was made to believe by the defendant that the schedule marginal land which is abutting the major portion of the land that was earlier purchased was free from all encumbrances and the defendant was only required to obtain the sale deed from BDA and after obtaining the same he would execute a sale deed in favour of the plaintiff. Admittedly till 22.06.2017 the defendant had not obtained sale deed from BDA to sell the schedule marginal land to the plaintiff. Though the defendant had represented to the plaintiff that it is in possession of the schedule marginal land the documentary evidence on record speaks to the contrary that there is no iota of evidence before the Court to substantiate that the possession of the marginal land was with defendant even though he has not obtained sale deed from BDA.
With respect to the schedule property previously 15 Com.OS.No.265/2020 there was a litigation in O.S.No.3193/2018. The said suit was filed by the defendant against one Vishveshwarayya and BWSSB who were defendants No.1 and 2. The said suit was for a relief of permanent injunction restraining defendant No.1 and 2 interefering with the plaintiff's possession of the schedule property which is the same that was offered to be sold to the plaintiff under Ex.P.3. The said suit came to be duly contested and concerned Court vide judgment dated 22.12.2021 dismissed the suit. The said judgment has reached finality as on today.
16. The plaintiff in the course of evidence has produced certified copy of the judgment which s at Ex.P.17. As the suit in O.S.No.3193/2018 was for the relief of permanent injunction necessarily the plaintiff i.e., the present defendant was required to prove his possession over the schedule property. The Court in O.S.No.3193/2018 had framed issued No.1 casting burden on the plaintiff to prove its lawful possession and enjoyment over the schedule property. In the said suit the sale deed with respect to the schedule property was also tendered in evidence and the concerned Court after analyzing the evidence on record with respect to the possession of the plaintiff has categorically observed that the schedule property did not belong to the BDA they had no right over 16 Com.OS.No.265/2020 the schedule marginal land and the sale deed dated 05.02.2018 is a fabricated document having created without having any right over the schedule marginal land. The concerned Court also has made an observation that possession also did not lie with BDA and present D.W.1 who has examined as P.W.1 in the said suit has categorically admitted that the present defendant was not given possession of the schedule property the marginal land and also there is an observation recorded by the Court that there is no mention about handing over of possession in the sale deed executed by BDA. I deem it just and proper reproduce the observations made by the concerned Court in paras 27 to 29 of the judgment which is as under:
"27. The suit schedule property is not belongs to Bengaluru Development Authority. The Bengaluru Development Authority executed the sale deed on 05.02.2018 in favour of plaintiff is no value at all. The documents produced by the defendant it clearly goes to show that there is no margin land. The suit property is belongs to defendant No.2. Ex.P.5 and Ex.P.6 letters are forwarded to the Executive Engineer, BWSSB. In Ex.D.1 it clearly mentioned on the western side is CHL Reservoir land and Ex.D.3 also mentioned on western side is CHL reservoir land 17 Com.OS.No.265/2020 and BWSSB quarters. The Bengaluru Development Authority officials have created the margin land and executed the registered sale deed in favour of the plaintiff on 05.02.2018.
28. In Ex.P.7 possession was not delivered in favour of the plaintiff and Bengaluru Development Authority has not issued possession certificate in favour of plaintiff and possession certificate not produced by the plaintiff. P.W.1 in his cross-examination also admitted that the Bengaluru Development Authority has not delivered the possession in favour of the plaintiff in respect of the suit schedule property and in this regard there is no recital in the sale deed. Except Ex.P.7 other documents have not been produced by the plaintiff to show that he is in peaceful possession of the suit schedule property.
29. Ex.D.8 to Ex.D.10 are shows that the margin land belongs to defendant No.2. Ex.D.7 it also clearly goes to show that on the western side BWSSB property situated. Bengaluru Development Authority has no power to execute the Ex.P.7 sale deed in favour of the plaintiff. Bengaluru Development Authority having no right, interest over the margin land, the official of the Bengaluru Development 18 Com.OS.No.265/2020 Authority and plaintiff have colluded with each other and created Ex.P.7 sale deed in respect of the suit schedule property. The documents produced by the plaintiff and defendants it clearly goes to show that the suit schedule property is belongs to the defendant No.2. Therefore, Bengaluru Development Authority has no right to execute the sale deed in favour of the plaintiff and plaintiff fails to produce the documents to show that the plaintiff company is in lawful possession and enjoyment over the suit schedule property."
17. From the above observations made in the judgment which as on today having reached finality it is abundantly clear that the defendant neither had the title nor possession over the suit schedule marginal land and it is abundantly clear that the defendant has misrepresented the plaintiff that he is having possession over the schedule marginal land. In fact the sale deed which is produced at Ex.D.5 no where speaks about the possession of the marginal land being handed over to the defendant by BDA. The existence of the property of BWSSB abutting the marginal land is categorically brought out in the evidence of D.W.1 in his cross-examination. Therefore it 19 Com.OS.No.265/2020 can be held without hesitation that as on the date of entering into the agreement of sale dated 20.12.2016 the defendant neither had title nor possession over the marginal land and therefore it is the defendant who has committed breach of the condition of the agreement of sale.
18. Having observed that the defendant has breached the conditions of the agreement of sale as per clause 28 of the agreement the defendant is liable to refund the advance sale consideration with interest at 18% per annum. In fact the learned counsel appearing for the defendant in the course of his argument fairly conceded that the defendant is liable to refund the advance sale consideration but there is no liability to pay the interest as claimed.
19. With regard to the payment of the interest amount for refund of the advance sale consideration the learned counsel for the plaintiff referred to clause 3(ii) of the agreement which provides for payment of interest at 2% per month on the advance sale consideration if execution of sale deed is denied after 31.01.2017. Further clause 2(14) of the agreement also provides that where the seller fails to perform his part of the contract he is 20 Com.OS.No.265/2020 required to pay damages. Clause 28 of the agreement of sale at Ex.P.3 provides that the seller undertakes to refund the advance amount together with cost and expenditure with interest at 18% per annum in case any litigation accrues or arises after execution of the agreement. The payment of interest at 2% per month in only with respect to delayed execution of the sale deed. In the case on hand pursuant to coming to know about the filing of the litigation in O.S.No.3193/2018 the plaintiff vide letter dated 22.06.2017 which is produced at Ex.P.8 has called upon the defendant to execute the sale deed on or before 30.06.2017 failure to which the defendant has been called upon to return the advance sale consideration of Rs.1,00,00,000/- with interest at 12% per annum from the date of receipt of the amount till payment. Also the defendant has been called upon to pay Rs.10,00,000/- as liquidate damages. Neither in the letter at Ex.P.8 nor under any clause of the agreement there is a stipulation with respect to payment of additional interest at 2% per month in case of cancellation of the agreement. The agreement has been virtually cancelled with effect from 30.06.2017 as evident in the letter at Ex.P.8 and also the notice at Ex.P.11. Therefore payment of additional interest at 2% per month from 28.12.2016 by the defendant on the advance sale consideration of Rs.1,00,00,000/- will 21 Com.OS.No.265/2020 not arise. On the other hand the plaintiff would be entitled for refund of the advance sale consideration of Rs.1,00,00,000/- with interest at 18% per annum from 28.12.2016 till realization. Hence for the aforesaid reasons, I answer Issue No.1 partly in the Affirmative.
20. ISSUE NO.2:- The plaintiff has also sought for payment of a sum of Rs.10,00,000/- by the defendant as liquidated damages. Under clause 3(14) of the agreement at Ex.P.3 it has been stipulated that where the seller fails or neglects to perform his part of the contract then he shall pay a sum of Rs.10,00,000/- as liquidated damages. Sec.73 of Indian Contract Act provides for compensation for loss or damage caused by breach of contract. It stipulates that where the contract has been breached the party who suffers on account of such breach is entitled for compensation from the person who has breached the contract for any loss or damage caused to them which would naturally arose on account of such breach. In the case on hand it is abundantly clear and as evident from the judicial observations made in the judgment at Ex.P.17 as on the date of entering into the agreement to sell at Ex.P.3 the defendant neither had title nor had possession over the schedule marginal land. In spite of it by false 22 Com.OS.No.265/2020 representation he has made the plaintiff to believe and enter into agreement of sale and pay advance sale consideration of Rs.1,00,00,000/- which otherwise the plaintiff would have invested or spent for a fruitful purpose. The defendant having breached the terms of the contract is liable to pay for the damages and therefore as stipulated under the clause 3(14) of the agreement at Ex.P.3 the defendant is liable to pay a sum of Rs.10,00,000/- as damages to the plaintiff and accordingly I answer Issue No.2 in the Affirmative.
21. ISSUE NO.3:- Before proceeding to pass the final order it is required to answer one aspect with respect to agreement of sale at Ex.P.3. The Learned counsel for the defendant before addressing the arguments on merits of the suit had filed I.A No.7 under section 33 and 34 of the Karnataka Stamp Act for impounding of the agreement of sale at Ex.P.3 being unregistered and insufficiently stamped instrument. After due contest the said application came to be rejected by this Court observing that as the instrument has been already admitted in the evidence by virtue of Sec.35 of the Karnataka Stamp Act this Court has not power to again go into the issue of admissibility of the instrument. However an observation has been made to the effect that regarding the 23 Com.OS.No.265/2020 impounding of the instrument this Court has all the power to impound the instrument if it is insufficiently stamped even after it is been admitted in the evidence. Yet another argument that was put forth by the learned counsel for defendant is that the agreement at Ex.P.3 being unregistered is not sustainable in law. It is pertinent to mention here that the agreement to sale executed by the defendant in favour of the defendant at Ex.P.3 is admittedly an unregistered instrument. The document is only with respect to an agreement to sell the property and there is no transfer of possession under the said agreement and also there is no transfer any right title or interest in the immovable property in favour of the plaintiff. It is only an agreement undertaking by the defendant to sell the property for a given consideration. Therefore under such circumstances requiring the document to be registered is not mandatory. In this regard the learned counsel for the plaintiff has relied upon the following decisions.
1. (2011) 14 SCC 66, SMS Tea Estates Private Limited vs. Chandmari Tea Company Private Limited.
2. (2008) SCC 564, K.B. Saha and sons Private Limited vs. Development Consultant Limited.
3. (2010) 5 SCC 401,S Kaladevi vs. V.R. 24 Com.OS.No.265/2020 Somasundaram and others.
4. (2019) SCC 1905, Prakash Sahu vs. Saulal and others.
6. (2019) SCC Del 10764, Su-Kam Power Systems Ltd., vs. Kunwer Sachdev and another.
22. I have gone through the above cited decisions and the observations made therein by the Hon'ble Apex Court and Hon'ble Delhi High Court applies to the facts and circumstances of the case on hand.
23. In so far as the payment of duty with respect to the agreement to sale under Ex.P.3 it is pertinent to mention here that the agreement though it is admitted in evidence is insufficiently stamped. The agreement has been executed on a stamp value of Rs.200. The advance sale consideration is Rs.1,00,00,000/- received under the said instrument which is evident from clause 2(b) and (c). The stamp duty payable would be under article 5 (3) (II) which is 10ps for every 100 rupees or part there of on the market value equal to the amount of consideration subject to a maximum of Rs.20,000/- but not less that Rs.500/-.
25 Com.OS.No.265/2020Therefore it is abundantly clear that the agreement executed on stamp value of Rs.200 is insufficiently stamped instrument which needs to be impounded and sent to District Registrar of Stamp and Registration for collection of the appropriate stamp duty with penalty as provided under the rules therein. The plaintiff would be entitled for decree only upon payment of the duty and penalty if any decided by the District Registrar of Stamps and Registration. Hence, with the above observations, I proceed to pass the following...
ORDER Suit of the plaintiff is decreed in part with costs.
The defendant is directed to refund the advance sale consideration of Rs.1,00,00,000/- with interest at the rate of 18% per annum from the date of suit till realization.
The defendant shall also pay liquidated damages of Rs.10,00,000/- to the plaintiff.
The claim of the plaintiff for
additional interest at 2% per month on
26 Com.OS.No.265/2020
the advance amount of
Rs.1,00,00,000/- from 28.12.2016 till realization is rejected.
Draw decree accordingly.
[Dictated to the Stenographer Grade-III, transcribed by her, corrected and signed by me then pronounced in the Open Court, dated this the 15th day of October 2024] (ARJUN. S. MALLUR) LXXXV Addl.City Civil & Sessions Judge, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PLAINTIFF:
PW-1 Sri.Niranjan LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE PLAINTIFF Ex.P.1 Online copy of the web page extract denoting particulars of the defendant company taken from the official website of the ministry of corporate affairs.
Ex.P.2 Certificate u/S 65B of Indian Evidence Act in respect of Ex.P.1.
Ex.P.3 Original agreement of sale dated 20.12.2016.
Ex.P.4 Letter issued by defendant requesting for 27 Com.OS.No.265/2020 release of the advance amount dated 30.11.2016.
Ex.P.5 Documents denoting the remittance of the total amount of Rs.1.00 crore along with TDS certificate for the assessment year 2017-18 / statement of account issued by Canara Bank, Sandur branch.
Ex.P.6 Plaintiff's email dated 12.12.2016.
Ex.P.7 Email dated 29.05.2017.
Ex.P.8 Copy of plaintiff's response dated
22.06.2017.
Ex.P.9 Certified copy of the plaint in
O.S.3193/2018.
Ex.P.10 Certified copy of Written Statement in
O.S.3193/2018.
Ex.P.11 Original letter dated 28.05.2018.
Ex.P.12 Reply letter along with email dated
16.07.2018.
Ex.P.13 Office copy of demand notice dated
06.12.2019.
Ex.P.14 Reply issued by defendant through his
counsel.
Ex.P.15 Medication Application Form filed before
DLSA.
Ex.P.16 Non Starter Report.
Ex.P.17 Certified copy of judgment passed in
O.S.3193/2018.
Ex.P.18 Online copy of the web page extract
denoting particulars of the plaintiff
company taken from the official website of the ministry of corporate affairs.
Ex.P.19 Certificate u/S 65B of Indian Evidence Act in respect of Ex.P.18.
Ex.P.20 to Photographs with respect to schedule 22 property.
28 Com.OS.No.265/2020LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENDANT D.W.1 Lohith C LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE DEFENDANT Ex.D1 to Certified copies of the Registered Sale D.5 Deeds dated 07.08.2014, 16.03.2015, 14.03.2014, 06.08.2014 and 05.02.2018 Ex.D6 Board Resolution of defendant No.1 (ARJUN. S. MALLUR) LXXXV Addl.City Civil & Sessions Judge, Bengaluru.