Karnataka High Court
Manchalal And Anr. vs Shah Manikchand And Ors. on 21 September, 1987
Equivalent citations: AIR1988KANT221, ILR1987KAR3568, AIR 1988 KARNATAKA 221, ILR 1987 KANT 3568
JUDGMENT Nesargi, J.
1. This is a defendants' appeal.
2. Respondents plaintiffs filed O.S. No. 157/74 on the file of the Principal Civil Judge, Bangalore City, claiming a decree in a sum of Rs. 3 1,500/- made up as follows:
i) Advance paid to the defendants as per the agreement - Rs. 25,000/-
ii) Damages Rs. 5,000/- iii) Interest from 18-9-1973 to 18-3-1974 Rs. 1,500/-
3. The substantial facts are not in dispute. The defendants are the owners of the property mentioned in the schedule. An agreement of sale was entered into between the plaintiffs and the defendants on 8-10-1973 as per Exhibit P-7. On 17-9-1973 the plaintiffs had paid Rs. 24,000/- by cheque on Karnataka Bank and Rs. 1,000/- in cash to the defendants as part of the consideration. As per the terms of Exhibit P-7, the sale transaction was to be completed within two months from 18-10-1973. The remaining two terms, which are in dispute, are that in case the plaintiffs failed to perform their part of the contract, the amount of advance was to be forfeited. In case, the defendants failed to perform their part of the contract, they had to refund Rs. 25,000/- and also to pay damages of Rs. 25,000/-.
4. The case of the plaintiffs is that as the defendants did not evince such interest as to make them believe that they were ready to perform their part of the contract, they issued a telegram as per the original of Exhibit P-1 on 13-12-1973 and not. receiving any reply from the defendants, they issued another telegram as per the original of Exhibit P-2 dt. 17-12-1973 to the defendants at the address, No. 83, Rangaswamy Temple Street, Bangalore-2. They had also sent a registered notice to the defendants at the same address. On the other hand, the defendants issued a registered notice dt. 24-12-1973 (Exhibit D-1) informing the plaintiffs that the plaintiffs had committed breach of contract and therefore, the, advance of Rs. 25,000/- had been forfeited. The plaintiffs sent a suitable reply dt. 7-1-1974 (Exhibit. P-4) refuting the contents of Exhibit D-1 and referring to their earlier -telegrams and registered notice and pointed out that the defendants had failed top perform, their part of the contract. It is in view of these facts that the plaintiffs filed the suit on 2-4-1974.
5. The 1st defendant remained ex parte Defendant 2 contended not only on behalf of himself but also his brother Defendant I that they had, on many occasions, called upon the plaintiffs to perform their part of the contract but the plaintiffs have failed to oblige them, they had not received any telegraphic messages as averred by the plaintiffs, they had not received any registered notice from the plaintiffs and in view of these facts they issued the registered notice Exhibit D-1 to which a false reply as per Exhibit P-4 has been sent. It is alternatively contended that the plaintiffs are not entitled to interest or damages.
6. The trial Court has raised the following issues :
(1)Whether the plaintiff was ready and willing to perform his part of the contract, within the time stipulated?
(2) Whether he proves that the defendants have defaulted in executing the sale deed on their own account?
(3) Whether the defendants prove that they were always ready and willing to perform their part of the contract in terms of the agreement?
(4) Whether the plaintiff is entitled to recover the suit claim with damages and interest?
(5) To what decree?
It has held that plaintiffs were ready and willing to perform their part of the contract and the defendants had committed breach of the contract. It has also held that the defendants were not ready and willing to perform their part of the contract in terms of the agreement Exhibit P-7.
7. The trial Court has decreed the suit of the plaintiffs in a sum of Rs. 26,500/- with proportionate costs and future interest at six per cent per annum on As. 25,000/-.
8. In support of its conclusion that the plaintiffs are entitled in a sum of Rs. 26,500/-, it has rejected the claim of the plaintiffs in regard to the item of damages and has accepted the claim of the plaintiffs in respect of the item of interest of Rs. 1500/- from 18-9-1973 to 18-3-1974.
9. The plaintiffs have examined three witnesses. P.W. 2 is plaintiff No. 1. P.W. 1 is a Clerk in the Telegraph Office who has sworn that Exhibits P-1 and P-2 are the certified true-copies of the originals of telegrams handed over for despatch on 13-12-1973 and 17-12-1973 respectively. He has sworn that his officer K. K. Mohamed Gouse has issued Exhibits P-1 and P-2 under his signature certifying that they are true-copies of the originals. He has identified the said signatures on Exhibits P-1 and P-2 at Exhibits P-l (a) and P-2(a) and also in the Receipt Exhibit P-3 isued for receipt of the charges for issuing the certified copies of Exhibits P-1 and P-2. Nextly, he has sworn that the original telegrams have been destroyed after three months as per Rules.
10. P.W. 3 is one Sohanraj who is the younger brother of the 1st plaintiff. His evidence does not appear to be of much significance. Defendant No. I (D.W. 2) has sworn that he is residing in Rangaswamy Temple Street, in premises bearing No. 66, N.M. C. Lane, 5th Cross and the 2nd defendant is residing at premises No. 2, 5th Cross, Rangaswarny Temple Street. He has sworn that neither he nor the other defendant received any telegrams or registered notice said to have been sent by the plaintiffs. He has contended that he approached the plaintiffs but the plaintiffs did not possess means to go ahead with the sale transaction by paying the balance amount deducting an amount of Rs. 25,000/- from the consideration amount of Rs. 2,90,000/-. Hr, has, in his cross examination, admitted that the suit summons 'Exhibit P-8 was received by Defendant 2 and the signature of Defendant No. 2 is at Exhibit P-8(a) and that he has not received any telegrams as per Exhibits P- I and P-2.
11. The cause-title of the plaint discloses the address of the both the defendants as residing at No. 83,,Rangaswamy Temple Street, Bangalore-2. There is no contention in the Written Statement making out that the defendants have been residing at some other address. That case of defendants has come out, for the first time when Defendant I examined himself on 21-9-1976 as D.W. 2. The fact that Exhibit P-8 has been received by Defendant 2 personally, as per, the endorsement of the Serving Officer on Exhibit P-8 and the proof of Exhibit P-8(a) on Exhibit P-8 leads to the conclusion that the said summons had been served on Defendant 2 at the address shown therein and which is the address found in the cause-title. There is no evidence produced by the defendants to the effect that Exhibit P-8 was served on Defendant 2 in some other place. Therefore, an argument, of possibility of Exhibit P-8 having been served on Defendant 2 at a place other than the address shown therein cannot be entertained. Hence, we hold that the evidence of Defendant 1 that he and Defendant 2 have been residing in an address other than one described in the cause-title cannot be relied upon as it is patently an after thought.
12. Exhibits P-1 and P-3 disclose that they are certified copies of telegrams despatched to the defendants at the address given in the cause-title, No. 83, Rangaswamy Temple Street, Bangalore-2. These are prepared and issued on 17-12-1973 itself. The evidence of P.W. 1 establishes that the originals of Exhibits D-1 and P-2 were very much in existence on 17-12-1973 because they have been destroyed three months thereafter. Exhibits P-1 and P-2 have been secured by the plaintiffs on 17-12-1973 itself as is clear from the Receipt Exhibit P-3. Section 65(c) of the Evidence Act lays down that secondary evidence may be given on proof of the fact that the original has been destroyed or lost It is now satisfactorily proved that the originals of Exhibits P-1 and P-2 have been destroyed. Therefore, Exhibits P-1 and P-2 became evidence in this case.
13. Now it is to be seen whether the dispatch of Exhibits P- 1 and P-2 and receipt of the messages contained in Exhibits P-1 and - P-2 by the defendants is, in law, established because of the contention of the defendants that they have not received telegrams as per Exhibits P-1 and P-2. Section 88 of the Evidence. Act reads as follows:
"Presumption as to telegraphic messages. The Court may presume that a message, forwarded from a telegraph office to the person to whom such message, purports to be addressed, corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the Court shall not make any presumption as to the person by whom such message, was delivered for transmission."
A plain reading of this section shows that a presumption arises to the effect that the messages contained as per Exhibits P-1 and P-2 were delivered to the addressees mentioned therein who, we have already shown, are the defendants. The defendants have not produced any documentary evidence by way of rebuttal, such documentary evidence could have been the messages they had actually received. On the other hand, they were examined only P.W. 2 (defendant 1) whose evidence is not sufficient to rebut this presumption. Therefore, we agree with the conclusion of the trial Court though not its reasoning that telegraphic messages as contained in Exhibits P-1 and P-2 were sent by the plaintiffs and were received by the defendants. That leads to a definite conclusion that even on receipt of these messages, the defendants did not raise their little finger to perform their part of the contract in terms of Exhibit P-7. The messages in Exhibits P- 1 and P-2 read as follows:
Exhibit P-1:
"After Agreement Between Us Dated Eighteenth October Regarding Sale Of Your House Property Bearing Number 28 Bettappa Lane Bangalore-2 Stop Time Stipulated Drawing Near Stop You Are Evading To Complete Sale Deed Despite Repeated Requests Stop Take Notice That If On Or Before 15th You Fail To Do The Needful Clause -Ten Of The Agreement Will Be Enforced ......
Manikchand Hemraj And Ugambai."
Exhibit P-2:
"Agreement Between Us Di. 18th Oct., 1973 For Sale Of Entire House Number 28 Bettappa Lane Chowdeswari Temple Street Cross Bangalore Stop We Are Ready To Pay The Balance Of Sale Price And Draft Sale Deed Ready Stop You Are Evading To "Complete The Sale On Untenable Grounds Stop Last Date For Completing The Sale Is 17th December 1973 Stop Finalise The Sale By Receirving The Balance On 17th Dec.,1973 stop Intimate Your Readiness To Complete The Sale By Reply Wire Stop If No Reply Is Received And You Do Not Complete The Sale As Mentioned Above Agreement Will Be Enforced.......
Sha Manickchand C Hemraj Ugarri Bai."
A reading of the foregoing leaves no doubt in our minds that the plaintiffs have clearly informed the defendants that they were ready and willing to perform their part 6f the contract and called upon the defendants to perform their part of the contract. Therefore, the conclusion of the trial Court that the plaintiffs were ready and willing to perform their part of the contract has to stand. It necessarily follows that the defendants have failed to discharge the burden cast on them .by issue No. 3.
14. The case of the plaintiffs in regard to the refund of Rs. 25,000/- is very well ~supported by the explicit term contained in Exhibit P-7. The question would be whether the plaintiffs are entitled to interest on that amount from, 18-9-1973 to 18-3-1974? The agreement Exhibit P-7 is dt. 18-10-1973. Therefore, the plaintiffs cannot claim any interest for the period anterior to 18-10-1973. The relevant term in Cl. 10 of Exhibit P-7 does not make out that there was an agreement between the parties for payment of interest on the advance amount, by the defendants to the plaintiffs in case of refund of the advance. On the other hand, a specific term for payment of damages of Rs. 25,000/- is contained. Therefore, the ordinary principle of granting interest under S. 34 of C.P.C. would not be attracted as the parties are, in law, bound by the terms of the contract contained in Exhibit P-7. Hence, the trial Court could not have granted interest on the amount of Rs. 25,000/- which represents nothing but the-amount to be refunded as per Exhibit P-7.
15. The trial Court, has in regard to the damages, reasoned that the plaintiffs were not, in law, entitled to claim damages and interest as well and that the plaintiffs had, failed to establish the quantum of damages sustained by them as amounting to Rs. 5,000/-. The part of the decree which has gone against the plaintiffs (denying damages of Rs. 5000/-) has not been challenged by the plaintiffs either by way of an appeal or cross-objections. Hence, it has to stand.
16. In view of the foregoing, the defendants, in this appeal, can succeed only to the extent of Rs. 1500/- the amount of interest granted to the plaintiffs as against them. The records of this appeal show that originally an interim order of stay staying the operation of the decree except in regard to cost had been granted and the same came to be vacated and further, pursuant to that order, the whole of the decretal amount was deposited by the defendants in the trial Court and was withdrawn by the plaintiffs on 10-91977. It, therefore, follows that Rs. 1500/- granted as interest also has been withdrawn by the plaintiffs on that date.
17. In view of the foregoing reasons, we allow this appeal partly with proportionate costs we set aside the decree granting interest in a sum of Rs. 1500/- and confirm the remaining part of the decree.
18. Appeal partly allowed.