Bangalore District Court
M S Indian Wood And Industries vs Ms Hajee Ebrahim Sai Wakf on 5 February, 2025
KABC010258912014
IN THE COURT OF XXXI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AT BENGALURU
Dated this the 5th day of February 2025
Present : SRI.VEDAMOORTHY B.S., B.A.(L)., LL.B.,
XXXI Addl. City Civil & Sessions Judge, Bengaluru (CCH-14)
O.S.No.9403/2014
PLAINTIFF : M/s. Indian Wood & Industries,
A Partnership Firm registered under
the Partnership Act, 1932 having its
Registered Office at Wood House,
No.526, 2nd Floor, 5 Block,
Ranka Apartment, Lalbagh Road,
Bangalore - 560 027.
Represented herein by its
Managing Partner, Mr.Kurian Thomas.
(By Sri.Ajesh Kumar S., Advocate)
V/s
DEFENDANT : Hajee Ebrahim Sait Wakf,
a Private Wakf, having Office at No.47,
2nd Floor, Greams Road,
Thousand Lights, Chennai - 60 006,
represented by its Muthavalli,
Mr.M.Fuaad Musvee,
Son of late Ebrahim Musvee.
(By Sri.C.K.Nandakumar, the learned
Senior Counsel and Smt.Tahura Anzar,
Advocate)
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O.S.No.9403/2014
Date of institution of the suit. 04.12.2014
Specific Performance of
Nature of the suit Contract & Permanent
Injunction
Date of the commencement of 18.06.2019
recording evidence
Date on which the Judgment 05.02.2025
was pronounced
Years Months Days
Total duration
10 02 01
(VEDAMOORTHY B.S.)
XXXI Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
The plaintiff has filed this suit against the defendant for judgment and decree of Specific Performance of Contract i.e., the Agreement to Lease dated 25.03.1998 and the Lease Deed dated 01.07.1999 and Permanent Injunction restraining the defendant, its agents, assignees, nominees or any person acting on its behalf or claiming through it from breaching or violating any of the terms and conditions of the Judgment and Decree dated 11.10.1996 passed in Misc. No.11/1996 by the XVII Additional City Civil Judge and 3 O.S.No.9403/2014 Sessions Judge, Bengaluru, Agreement to Lease dated 25.03.1998 and the Leased Deed dated 01.07.1999 with costs.
2. The suit schedule property is the land ad-measuring 48,986 square feet forming eastern portion of the total land ad-measuring 78,986 square feet together with buildings and structures thereon situated at No.4, Madras Bank Road, Civil Station, Bangalore the land falling between St.Mark's Road and Lavelle Road and bounded on North by Madras Bank Road, South by Private Property, East by A Private Property and West by Schedule B Property.
3. The brief facts of the case of the plaintiff are that the defendant is the owner of the suit schedule property. Since 03.08.1964, the plaintiff is the tenant in the suit schedule property under the defendant. In Misc. No.11/1996, the XVII Additional City Civil and Sessions Judge, Bengaluru vide Judgment and Decree dated 11.10.1996, permitted the defendant to let out the suit schedule property to the plaintiff for an initial period of 60 years and to execute the 4 O.S.No.9403/2014 Lease Deed in respect of the suit schedule property in favour of the plaintiff in terms of Memorandum of Understanding dated 19.08.1995 executed between the plaintiff and the defendant. In pursuance, in compliance and execution of the directions made in the above proceedings, the defendant entered into an Agreement to Lease dated 25.03.1998 agreeing to execute a Lease Deed in favour of the plaintiff as per the terms of the Memorandum of Understanding dated 19.08.1995 for an initial period of 60 years commencing from 01.04.1995 and expiring on 01.04.2054. As per the said Agreement to Lease, the plaintiff has an option for the renewal of the lease for further period on such terms and conditions as mutually agreed upon. In order to carryout the objectives contained in the Agreement to Lease Dated 25.03.1998, the parties there to have applied and obtained permission from the competent authorities under Section 269-UL(1) of the Income Tax Act to grant No-objection Certificate for the transfer of the suit schedule property in terms of the Agreement to Lease. In view of certain delay caused for fulfilling the objectives of the Memorandum of 5 O.S.No.9403/2014 Understanding dated 19.08.1995 and to obtain the statutory permissions to execute a Lease Deed, the plaintiff and the defendant have entered into a Supplemental Agreement dated 17.10.1998 extending the time for performance of the obligations and to execute the Lease Deed. It was followed by a further Supplemental Agreement dated 30.03.1999 extending further time for execution of the Lease Deed. In order to give effect to the said documents, on 01.07.1999, the plaintiff and the defendant have executed a Lease Deed. Thereby, the Judgment and Decree in Misc. No.11/1996 dated 10.10.1996 got executed. The defendant vide letter dated 04.09.1999, admitted the receipt of money from the plaintiff and confirmed that the plaintiff has fulfilled all the obligations as contained in the Memorandum of Understanding dated 19.08.1995. The defendant has also admitted to execute the Lease Deed printed on stamp paper of Rs.100/-. The time for admitting the execution of Lease Deed was extended by the parties from time to time. Thereafter, the defendant has raised invoices and the plaintiff was promptly making payments of rent to the 6 O.S.No.9403/2014 defendant. The plaintiff has performed its obligations under the aforesaid Lease Deed dated 01.07.1999 by paying the rents to the defendant up to date without any delay or default.
4. What made the plaintiff to file this suit is that in spite of the plaintiff called upon the defendant to come forward and admit the execution of the Lease Deed dated 01.07.1999 before the Sub-Registrar and to give effect to the same, the defendant for the best reason known to it is delaying the same on the ground of personal inconvenience. It was agreed that the plaintiff shall get the Lease Deed adjudicated and thereafter, the defendant shall admit its execution before the jurisdictional Sub-Registrar. On 31.05.2014, the authority adjudicated the stamp duty of Rs.77,07,665/- and fine of Rs.3,85,335/- on the said Lease Deed. The plaintiff has paid the said amount to the appropriate authority. One Diwakar Rao filed the suit in O.S.No.25633/2014 against the plaintiff herein. The said suit was compromised between them. The plaintiff is always ready and willing to perform his part of contract. But, the 7 O.S.No.9403/2014 defendant is not coming forward to admit the execution of the Lease Deed before the Sub-Registrar. On 24.11.2014, the defendant issued a Legal Notice to the plaintiff and making attempts to legitimize the claim of the Diwakar Rao to stay in the suit schedule property. In view of the judgment and decree in Misc.No.11/1996 and Agreement to Lease dated 25.03.1998, the defendant is liable to admit the execution of the Lease Deed dated 01.07.1999.
5. After due service of summons to the defendant, the defendant has appeared before this Court and filed the written statement contending that the suit is barred by limitation. The Court feet paid is insufficient. The plaintiff has already sold the interest in the suit schedule property to the third parties. The suit is bad for non-joinder of necessary parties.
6. The defendant in the written statement has admitted the facts that the defendant has obtained permission from the XVI Additional City Civil and Sessions Judge, Bengaluru in Misc. No.11/1996 to execute the Lease Deed in favour of 8 O.S.No.9403/2014 the plaintiff; the defendant under an Agreement to Lease dated 25.03.1998 has agreed to lease the suit schedule property to the plaintiff for 60 years from 01.04.1995 to 01.04.2054 with other terms and conditions; it was declared to the Income Tax Authorities; execution of Supplemental Agreement dated 17.08.1998 between the plaintiff and the defendant, Agreement dated 30.03.1999 executed between the plaintiff and the defendant, Lease Deed dated 01.07.1999 executed by the defendant in favour of the plaintiff; the plaintiff paid the premium to the defendant and the defendant has acknowledged the receipt of money from the plaintiff by a Letter dated 04.09.1999. The other plaint averments are denied as false.
7. The defences of the defendant are that the plaintiff was never diligent in discharging his obligations under the alleged Lease Deed. The plaintiff is only interested in making unlawful gain by leasing out the suit schedule property to Hotel Airlines. The defendant has already terminated the tenancy of the plaintiff on the suit schedule property by issuing the Notice dated 24.11.2014. It was served on the 9 O.S.No.9403/2014 plaintiff. The plaintiff was never in possession of the suit schedule property. Even at the time of execution of alleged Lease Deed, Hotel Airlines was in possession and enjoyment of the suit schedule property. The orders in Misc. No.11/1996 is not a decree which can be enforceable. The plaintiff has not paid the Stamp Duty as alleged. Therefore, the alleged Lease Deed dated 01.07.1999 is liable to be impounded. The plaintiff executed Memorandum of Understanding dated 04.08.1995 with M/s Esteem Enterprises represented by S.N.S.Rao to contribute 50% of the premium of Rs.30,00,000/- in respect of the suit schedule property. The plaintiff played fraud upon the defendant by not disclosing the execution of the said document. The said act of the plaintiff is contrary to the permission granted by this Court. The defendant learn that the plaintiff has entered into an Agreement of Sale dated 10.02.2001 with Mr.P.Dayananda Pai agreeing to sell 50% of the super built up area of the proposed development. The execution of the said document is also contrary to the terms and conditions of Memorandum of Understanding dated 10 O.S.No.9403/2014 19.08.1995 and the Agreement to Lease dated 25.03.1998 entered into between the plaintiff and the defendant. The plaintiff has no right, title or interest to enter into such Agreement of Sale. Therefore, the plaintiff is not entitled for the relief of Specific Performance of Contract. Mr.P.Dayananda Pai has assigned all his right and interest acquired under the Agreement of Sale dated 10.02.2001 in favour of M/s Dynasty Developers Pvt. Ltd., now known as M/s Embassy Property Developments Pvt. Ltd., by an Agreement of Assignment dated 12.11.2007. It is also not permissible as the plaintiff is not the owner of the suit schedule property. He has no right to execute any agreements of sale to third party. Thus, the plaintiff has played fraud on the defendant. The plaintiff has approached this Court not with clean hands. He has suppressed the materials facts before this Court. He has created documents with malafide intention to cause hardship and prejudice to the defendant. Hence, prayed to dismiss the suit.
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O.S.No.9403/2014
8. Based on the above pleadings of the parties, the following issues and the additional issues are framed.
1. Whether the plaintiff proves that he is ready and willing to perform his part of contract as per the terms and conditions set out in the lease agreement dated 25.03.1998 and lease deed dated 01.07.1999 ?
2. Whether the defendant proves that the plaintiff was never diligent in discharging his obligations as per the lease agreement ?
3. Whether the plaintiff is entitle for the decree as prayed for ?
4. What decree or order ?
ADDITIONAL ISSUE FRAMED ON 10.09.2015
1. Whether the plaintiff has paid the proper Court fee ?
ADDITIONAL ISSUES FRAMED ON 05.02.2024
1. Whether the defendant proves that the plaintiff has executed a MOU dated 04.08.1995 with M/s Esteem Enterprises 12 O.S.No.9403/2014 in respect of suit property and thereby played fraud upon the defendant ?
2. Whether the defendant proves that contrary to the terms and conditions of the Memorandum of Understanding dated 19.08.1995 and Agreement of Lease dated 25.03.1998 executed between the plaintiff and the defendant, the plaintiff entered into an Agreement of Sale dated 10.02.2001 with P.Dayananda Pai agreeing to sell 50% of the super built up area of the proposed development to defraud the defendant for which, the plaintiff has no right ?
3. Whether the defendant proves that Mr.P.Dayananda Pai had in turn executed an agreement of assignment dated 12.11.2007 in favour of M/s Dynasty Developers Pvt. Ltd in respect of suit property and thereby played by fraud on the defendant ?
ADDITIONAL ISSUES FRAMED ON 27.09.2024
1. Whether the suit is barred by limitation ? 13
O.S.No.9403/2014
9. To prove the above issues and the additional issues, the plaintiff has produced the oral evidences of its Managing Partner by name Kurien Thomas as PW1. He has produced the documentary evidences Ex.P1 to to Ex.P71, Ex.P77 to Ex.P83. During cross-examination of PW1, Ex.D1 to Ex.D7, Ex.D44 and Ex.D45 are got marked through confrontation on behalf of the defendant. The defendant has produced the oral evidences of its Muthavalli by name M.Fuaad Musvee as DW1. The defendant has produced the documentary evidences Ex.D8 to Ex.D43. During cross-examination of DW1, Ex.P73 to Ex.P76 are got marked through confrontation on behalf of the plaintiff. One B.S.Mohan is cross-examined on his affidavit dated 26.04.2024.
10. Heard the arguments of the learned Counsel for the plaintiff and the learned Senior Counsel Sri.C.K.Nandakumar for the defendant. The learned Counsels for the plaintiff and the defendant have filed their written submissions.
11. The arguments of the learned Counsel for the plaintiff are that Ex.P2, Ex.P23 and Ex.P61 are not Rent 14 O.S.No.9403/2014 Agreements simplicitor. Under the said documents, the possession of the suit schedule property had been handed over to the plaintiff. Therefore, the plaintiff is entitled to protect his right under Section 53A of the Transfer of Property Act. Though, Ex.P23 and 61 are unregistered documents, they can be relied in a suit for specific performance of contract under Section 49 of the Registration Act as a contract of lease. The plaintiff has performed all his obligations as agreed under the said documents. The plaintiff has paid the premium amount to the defendant, surrendered 30,000 square feet of land to the defendant, the defendant has obtained the No- objection Certificate from the Income Tax Department as agreed, the plaintiff has entered into Lease Deed dated 01.07.1999, the plaintiff was paying the monthly rent to the defendant regularly and the plaintiff, the plaintiff was paying building tax to the concerned authority, the plaintiff has paid the electricity bills, the plaintiff has obtained Trade License, Trade Mark Certificate and the plaintiff has paid the Stamp Duty on Ex.P61. But, the 15 O.S.No.9403/2014 defendant has received duel payment from Diwakar Rao, issued No-objection Letter to him, assisted him to obtain the Trade License Certificate, issued Termination Notice and refused to receive the rent. The defendant has misused its dominant position. The plaintiff filed this suit with in 3 years as per Article 54 of the Limitation Act.
12. In support of the above arguments, the learned Counsel for the plaintiff has relied the following judgments:-
i. The judgment of the Hon'ble Supreme Court in the case between S.Kaladevi V/s V.R.Somasundaram and others [(2010) 5 SCC 401].
ii. The judgment of the Hon'ble Supreme Court in the case between K.B.Saha and Sons Private Limited and Development Consultant Limited [(2008) 8 SCC 564].
iii. The judgment of the Hon'ble Supreme Court in the case between R.Hemalatha V/s Kashthuri [(2023) 10 SCC 725].
iv. The judgment of the Hon'ble High Court of
Karnataka in the case between
S.V.Narayanaswamy V/s Smt.Savithramma, 16 O.S.No.9403/2014 since deceased by her LR's and others (ILR 2014 KAR 4185).
v. The judgment of the Hon'ble Kerala Court in the case between Jacobs Private Limited V/s Thomas Jacob (AIR 1995 Ker 249).
vi. The judgment of the Hon'ble Supreme Court in the case between Sardar Govindrao Mahadik and another V/s Devi Sahai and others [(1982) 1 SCC 237].
vii. The judgment of the Hon'ble Supreme Court in the case between Union of India and another V/s K.C.Sharma and Company and others [(2020) 15 SCC 209].
viii. The judgment of the Hon'ble Supreme Court in the case between Bichitrananda Behera V/s State of Orissa and others [(2023 SCC OnLine SC 1307].
ix. The judgment of the Hon'ble Supreme Court in the case between Union of India and others V/s N.Murugesan and others [(2022) 2 SCC 25].
x. The judgment of the Hon'ble Supreme Court in the case between Chairman, State Bank of India and another V/s M.J.James [(2022) 2 SCC 301].
17
O.S.No.9403/2014
xi. The judgment of the Hon'ble Supreme Court
in the case between Ghanshyam V/s
Yogendra Rathi [(2023) 7 SCC 361].
xii. The judgment of the Hon'ble Supreme Court in the case between Samruddhi Co-operative Housing Society Limited V/s Mubai Mahalaxmi Construction Private Limited [(2022) 4 SCC 103].
xiii. The judgment of the Hon'ble Supreme Court in the case between Laxmi Pat Surana V/s Union Bank of India and another [(2021) 8 SCC 481].
xiv. The judgment of the Hon'ble Supreme Court in the case between Kalavakurti Venkata Subbaiah V/s Bala Gurappagiri Guruvi Reddy [(1999) 7 SCC 114].
xv. The judgment of the Hon'ble Supreme Court in the case between Ameer Minhaj V/s Dierdre Elizabeth (Wright) Issar and others [(2018) 7 SCC 639].
xvi. The judgment of the Hon'ble Supreme Court in the case between R.Kandasamy (Since Dead) and others V/s T.R.K. Sarawathy and another [2024 SCC OnLine SC 3377].
18
O.S.No.9403/2014 xvii. The judgment of the Hon'ble Supreme court in the case between Boramma V/s Krishna Gowda and others [(2009) 9 SCC 214].
xviii. The judgment of the Hon'ble Supreme court in the case between Siddamsetty Infra Projects Pvt. Ltd. V/s Katta Sujatha Reddy and others [2024 SCC OnLine SC 3214].
xix The judgment of the Hon'ble Supreme court in the case between Bachhaj Nahar V/s Nilima Mandal and others [(2008) 17 SCC 491].
13. The arguments of the learned Senior Counsel for the defendant are that the plaintiff has neither pleaded nor proved the readiness and willingness to perform its part of contract agreed in Ex.P23 and Ex.P61. The defendant has written Ex.P7 to the plaintiff requesting him to make arrangements to pay the Stamp Duty on Ex.P61 and to get it registered. But, the plaintiff was silent for fifteen years. The plaintiff has not paid the stamp duty for fifteen years. The plaintiff has not called upon the defendant for registration of the Lease Deed and the General Power of Attorney. There was no communication in that regard. The plaintiff has slept 19 O.S.No.9403/2014 over his rights of presentation of the Lease Deed for its registration till the period specified under Sections 23 and 25 of the Registration Act is elapsed. The plaintiff has not made any attempt to develop the suit schedule property. Therefore, the plaintiff has breached the terms and conditions of the Agreement to Lease and the Lease Deed. The plaintiff is also silent on these regards. The delay in performing his part of contract attribute to the consequence that the suit is barred by limitation.
14. The learned Senior Counsel for the defendant has relied the following judgments :-
i. The judgment of the Hon'ble Supreme Court in the case between Pydi Raman @ Ramulu V/s Davarasety Manmadha Rao [(2024) 7 SCC 515].
ii. The judgment of the Hon'ble Supreme Court in the case between K.M.Manjunath V/s Erappa G. Dead through LRs [(2022) SCC OnLine SC 2316].
iii. The judgment of the Hon'ble Supreme Court in the case between Park Street Properties Private Limited V/s Dipak Kumar Singh and 20 O.S.No.9403/2014 another [(2016) 9 SCC 268].
iv. The judgment of the Hon'ble Supreme Court in the case between I.S.Sikandar (Dead) by LR's V/s K.Subramani and others [(2013) 15 SCC 27].
v. The judgment of the Hon'ble Supreme Court in the case between M/s Payal Vision Ltd., V/s Radhika Choudhary in Civil Appeal No.6734/2012.
vi. The judgment of the Hon'ble Supreme Court in the case between Anthony V/s K.C.Ittop and Sons and others [(2000) 6 SCC 394].
vii. The judgment of the Hon'ble Supreme Court in the case between Delhi Motor Company and others V/s U.A.Basrurkar (Dead) by his Legal Representative and others [(1968) SCC OnLine SC 202].
viii. The judgment of the Hon'ble High Court of Karnataka in the case between Smt.G.Kusuma Devi V/s Smt.Gowramma and others [(2006) SCC OnLine Kar 456].
ix. The judgment of the Hon'ble High Court of
Delhi in the case between Nexgen
Edusolutions Pvt. Ltd., V/s Aspire
Investments Pvt. Ltd. [(2015) SCC OnLine 21 O.S.No.9403/2014 Del 12431].
x. The judgment of the Hon'ble Supreme Court in the case between K.S.Vidyanadam and others V/s Vairavan [(1997) 3 SCC 1].
xi. The judgment of the Hon'ble Supreme Court in the case between Smt.Sandhya Rani Sarkar V/s Sudha Rani Devi and others [(1978) 2 SCC 116].
xii. The judgment of the Hon'ble Supreme Court in the case between Parakunnan Veetill Joseph's Son Mathew V/s Nedumbara Kuruvila's Son and others [1987 (Supp) SCC 340].
xiii. The judgment of the Hon'ble Supreme Court in the case between K.G.Arumugham and others V/s K.A.Chinnappan and others [(2005) 2 SCC 793].
xiv. The judgment of the Hon'ble Supreme Court in the case between Her Highness Maharani Shantidevi P.Gaikwad V/s SA Vjibhai Haribhai Patel and others [(2001) 5 SCC 101].
xv. The judgment of the Hon'ble High Court of Madras in the case between Indravathi V/s Kamala [2000 (IV) CTC 278].22
O.S.No.9403/2014 xvi. The judgment of the Hon'ble Supreme Court in the case between S.P.Chengalvaraya Naidu (Dead) by LRs V/s Jagannath (Dead) by LR's and others [(1994) 1 SCC 1].
xvii. The judgment of the Hon'ble Supreme Court in the case between Central Board of Secondary Education V/s Vineeta Mahajan (Ms) and another [(1994) 1 SCC 6].
15. Perused the materials available on record.
16. Upon considering the pleadings of both parties, evidences both oral and documentary produced by them, the arguments both oral and written submissions and the judgments relied by the learned Counsels for the plaintiff and the defendant which are applicable to the facts and circumstances of the present case on hand, my answers to the above issues and the additional issues are as follows;
Issue No.1 : In the Negative,
Issue No.2 : In the Affirmative,
Issue No.3 : In the Negative,
Addl. Issue No.1
dated 10.09.2015 : In the Negative,
Addl. Issue No.1
dated 05.02.2024 : In the Negative,
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O.S.No.9403/2014
Addl. Issue No.2
dated 05.02.2024 : In the Negative,
Addl. Issue No.3
dated 05.02.2024 : In the Negative,
Addl. Issue No.1
dated 27.09.2024 : In the Affirmative,
Issue No.4 : As per final order for the
following;
REASONS
17. ISSUES No.1 AND 2 :- In the pleadings, both the plaintiff and the defendant have made allegations and counter allegations between each other with regard to the readiness and willingness to perform their respective parts of the terms and conditions of the contracts i.e., the Agreement to Lease dated 25.03.1998 and the Lease Deed dated 01.07.1999. Therefore, these two issues are inter- related. To avoid the repetition of reasons and for better appreciation of the evidences produced by the plaintiff and the defendant on these two issues, these two issues are taken together for consideration.
18. Before to give the findings on these two issues, it is relevant to consider two important aspects of the matter. 24
O.S.No.9403/2014 One is the admitted and the undisputed facts in the present case on hand. Another is the findings on admissibility of the Agreement to Lease dated 25.03.1998, two Supplemental Agreements dated 17.10.1998 and 30.03.1999 and the Lease Deed dated 01.07.1999 in evidence. Because, the Agreement to Lease dated 25.03.1998 and two Supplemental Agreements dated 17.10.1998 and 30.03.1999 were marked as exhibits during examination-in-chief of PW1 subject to the objections of the learned Counsel for the defendant and during the arguments, the learned Senior Counsel for the defendant has argued that the Lease Deed dated 01.07.1999 is insufficiently stamped and unregistered document.
19. The admitted and undisputed facts in the present case :-
19.1 The defendant is the owner of the suit schedule property. The defendant filed Misc. Case No.275/1964 before the District Judge, Bengaluru under Section 34 of the Indian Trust Act praying for permission to enter into a long term lease with Thomas in respect of a property measuring 78,986 square feet in Premises No.4, Madras Bank Road, 25 O.S.No.9403/2014 Civil Station, Bengaluru. Vide order dated 03.08.1964, the District Judge, Bengaluru directed the defendant to enter into the proposed term lease with K.Thomas. Ex.P14 is the certified copy of the said Order. Ex.P15 is the certified copy of the Order of the House Rent Controller dated 17.12.1964 directing the defendant to deliver the possession of the allotted premises to K.Thomas. Thereafter, The defendant inducted the plaintiff as a tenant in the said property through a registered Agreement of Lease dated 11.11.1965 for a period of 20 years commencing from December 1964 with an option for the plaintiff to renew the lease after the expiry of the first 10 years. Ex.P25 is the said registered Agreement of Lease dated 11.11.1965. Ex.P17 is the another registered Agreement of Lease dated 09.04.1976 to continue the lease of the plaintiff for further period of 10 years commencing from 01.12.1975. The period of lease of 30 years was expired on 01.12.1994.
19.2 Thereafter, the defendant and the plaintiff have entered into a Memorandum of Understanding dated 19.08.1995 mutually agreeing to continue the tenancy of the 26 O.S.No.9403/2014 suit schedule property by the plaintiff under the defendant on fresh terms and conditions mentioned therein and the defendant shall execute a Lease Deed in favour of the plaintiff for a period of 60 years commencing from 01.04.1995. Ex.P2 is the said Memorandum of Understanding. Thereafter, the defendant filed Misc.
No.11/1996 under Sections 34 and 36 of the Indian Trust Act before the XVII Additional City Civil Judge, Bengaluru for permission to the defendant to lease the suit schedule property for a period of 60 years in favour of the plaintiff in terms of Memorandum of Understanding dated 19.08.1995. The Court vide order dated 11.10.1996 allowed the said petition permitting the defendant to lease the suit schedule property herein in favour of the plaintiff for a period of 60 years in terms of the Memorandum of Understanding dated 19.08.1995. Ex.P1 is the certified copy of the said Order. In furtherance to the said order passed in Misc. No.11/1996, on 25.03.1998, the Agreement to Lease was executed between the defendant and the plaintiff. Ex.P23 is the said Agreement to Lease dated 25.03.1998. Under the said 27 O.S.No.9403/2014 Agreement to Lease, the plaintiff and the defendant have agreed to execute and register the Lease Deed in respect of the suit schedule property within 90 days from the date of the receipt of all statutory clearance including the receipt of the necessary No-Objection Certificate under Section 269UL of the Income Tax Act, 1961 from the Appropriate Authority i.e., Income Tax Department respect of the said agreement; the Stamp Duty, Registration Fees, Legal Fees and all incidental charges and expenses for the registration of the Lease Deed shall be borne exclusively by the plaintiff. Thereafter, through Supplemental Agreement dated 17.10.1998, the said period was extended till 30.03.1999 at the request of the plaintiff for registration of the Lease Deed. Ex.P26 is the said Supplemental Agreement dated 17.10.1998. By executing another Supplemental Agreement dated 30.03.1999, again the said period was extended till 30.06.1999 at the request of the plaintiff for registration of the Lease Deed as the plaintiff was unable handover the vacant possession of 30,000 square feet of the property to the defendant. Ex.P27 is the said Supplemental Agreement 28 O.S.No.9403/2014 dated 30.03.1999. Ultimately, on 01.07.1999, the Lease Deed was executed by the defendant in favour of the plaintiff in respect of the suit schedule property. Ex.P61 is the said document. Ex.P70 and Ex.P71 are the two Sketch of the Building relating to the Hotel of the plaintiff. To enforce Ex.P23 and Ex.P61, the plaintiff filed the present suit.
20. The findings on the admissibility of the Agreement to Lease dated 25.03.1998, two Supplemental Agreements dated 17.10.1998 and 30.03.1999 and Lease Deed dated 01.07.1999 i.e., Ex.P23, Ex.P26, Ex.P27 and Ex.P61 :-
20.1 The Supplemental Agreement dated 17.10.1998 is marked as Ex.P26. The Supplemental Agreement dated 30.03.1999 is marked as Ex.P27. Both the said documents were marked as exhibits during examination-in-chief of PW1 subject to the objection of the learned Counsel for the defendant. The learned Counsel for the defendant has not stated what is his objections to mark/admit the said documents in the evidence of the plaintiff. In fact, in the written statement filed by the defendant, the defendant has admitted the execution of Ex.P26 and Ex.P27. During cross-29
O.S.No.9403/2014 examination, DW1 has admitted that he has affixed his signatures to Ex.P26 and Ex.P27. It appears from the contents of the said documents that by the execution of the said documents, the time stipulated under Ex.P23 to execute and register the Lease Deed in respect of the suit schedule property between the plaintiff and the defendant was extended. Such being the circumstances, the registration of the said documents is not compulsory nor the said documents are insufficiently stamped documents. Therefore, the marking of Ex.P26 and Ex.P27 subject to objection has no consequence.
21.2 Ex.P23 was also marked as exhibit during examination-in-chief of PW1 subject to the objections raised by the learned Counsel for the defendant. The only objection raised by the learned Counsel for the defendant to mark the said document as exhibit at that point of time was that it was not registered. The arguments of the learned Counsel for the plaintiff was that it was only an agreement and not a Lease Deed. With the said objections, the said document was marked as Ex.P23. But, during the arguments, the 30 O.S.No.9403/2014 learned Senior Counsel for the defendant has also contended that Ex.P23 is insufficiently stamped document and therefore, it cannot be considered. The said arguments of the learned Senior Counsel for the defendant cannot be considered at this stage of the proceedings in view of Section 35 of the Karnataka Stamp Act.
20.3 During marking of Ex.P61 in the examination-in- chief of PW1 as exhibit, the learned Counsel for the defendant has raised the objection. Considering the orders of this Court passed on I.A.No.V dated 18.04.2017, the said objection was overruled. In Ex.P61, the competent authority under the Karnataka Stamp has certified under Section 39 of the Karnataka Stamp Act that the said document is duly stamped. Therefore, there is no merits in the arguments of the learned Counsel for the defendant that Ex.P61 is not admissible in evidence for want of sufficient stamp duty on the said document.
20.4 It appears from the contents of Ex.P23 that it is an Agreement to Lease. It appears from the contents of 31 O.S.No.9403/2014 Ex.P61 that it is a Lease Deed. The period of lease under the said documents is for 60 years. Under Section 107 of the Transfer of Property Act, the lease of immovable property for any term exceeding one year can be made only by a registered instrument. Under Section 17(1)(d) of the Registration Act also, the registration of the document of lease of immovable property for any term exceeding one year is compulsory. Therefore, the registration of Ex.P23 and Ex.P61 are compulsory. But, Ex.P23 and Ex.P61 are not registered. Under the present suit, the registration of Ex.P61 is one of the terms and conditions of which, the plaintiff is seeking the relief of Specific Performance of Contract. 20.5 Ex.P23 and Ex.P61 are the documents executed before The Registration and Other Related Laws (Amendment) Act, 2001 was come into force. Therefore, they are admissible in evidence in this suit as a contract between the plaintiff and the defendant, for the purpose of Section 53A of the Transfer of Property Act and to consider the lease as a monthly lease. The reasons for the above findings are based on the following provisions of law and the judgments. 32
O.S.No.9403/2014 20.6 In Section 49 of the Registration Act before The Registration and Other Related Laws (Amendment) Act, 2001 was come into force, the effect of non-registration of the document required to be registered is stated as follows :-
"49. Effect of non-registration of documents required to be registered.- No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall -
(a) affect any immovable property
comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any
transaction affecting such property or conferring such power, unless it has been registered:
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of part performance of a contract for the purpose of Section 53A of the Transfer of Property Act, 1882.33
O.S.No.9403/2014 20.7 Section 53A of the Transfer of Property Act before The Registration and Other Related Laws (Amendment) Act, 2001 was come into force reads as follows :-
53A. PART PERFORMANCE :- Where any person contract to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.
and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract. and the transferee has performed or is willing to perform his part of the contract, then, not withstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed thereof by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other 34 O.S.No.9403/2014 than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
20.8 Section 17(1A) of the of the Registration Act after The Registration and Other Related Laws (Amendment) Act, 2001 was come into force reads as follows :-
(1-A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53-A of the Transfer of Property Act, 1882, shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001, and if such documents are not registered on or after such commencement then, they shall have no effect for the purposes of the said section 53-A. 20.9 The Hon'ble Supreme Court in its judgment in the case between Som Dev & others V/s Rati Ram & Another [2006 (10) SCC 788] held that "... the introduction of sub-section (1A) of Section 17 of the Registration Act made prospective from the date of coming into force of the The 35 O.S.No.9403/2014 Registration and Other Related Laws (Amendment) Act, 2001 insisting that documents containing contracts to transfer for consideration any immovable property for the purpose of Section 53A of the Transfer of Property Act, shall be registered if they have been created after the commencement of sub-section (1A) of Section 17 of the Transfer of Property Act.
20.10 In the judgment relied by the learned Counsel for the plaintiff in the case between Ameer Minhaj V/s Dierdre Elizabeth (Wright) Iassar and others [(2018) 7 SCC 639], the facts and circumstances are that three documents were produced by the plaintiff before the trial Court. One is an Agreement of Sale dated 12.11.1995. Another is Power of Attorney dated 02.05.1996. One more document is Agreement of Sale dated 09.07.2003. They were unregistered documents. Whether the said documents could be received in evidence was the question before the trial Court. The trial Court after considering the amendments made through The Registration and Other Related Laws (Amendment) Act, 2001 held that the agreement to sell dated 12.11.1995 having been executed prior to cut of date, 36 O.S.No.9403/2014 was admissible and could be marked as an exhibit and the agreement to sell dated 09.07.2003 was executed after coming into force of Section 17(1A) of the Registration Act, it was required to be registered. The Hon'ble Supreme Court after interpreting Sections 17(1A) and of the Registration Act held that the trial Court was right in overturning the objection regarding the marking and exhibiting the documents.
20.11 In the judgment relied by the learned Counsel for the plaintiff in the case between S.Kaladevi V/s V.R.Somasundram and others [(2010) 5 SCC 401] the Hon'ble Supreme Court held that :-
"12. The main provision in Section 49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. The proviso, however, would show that an unregistered document affecting immovable property and required by the 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in 37 O.S.No.9403/2014 a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. By virtue of the proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs.100 and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of the 1908 Act."
20.12 In another judgment relied by the learned Counsel for the plaintiff in the case between K.B.Saha and Sons Private Limited V/s Development Consultant Limited [(2008) 8 SCC 654] the Hon'ble Supreme Court held that :-
"34. From the principles laid down in the various decisions of this Court and the High Courts, as referred to herein above, it is evident that :
1. A document required to be registered, if 38 O.S.No.9403/2014 unregistered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction of effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc., any right, title or interest in immovable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."
20.13 In one more judgment relied by the learned Counsel for the plaintiff in the case between R.Hemalatha V/s Kashthuri [(2023) 10 SCC 725].
"23. Thus, as per the proviso to Section 49, an unregistered document affecting the immovable property and required by the Registration Act to be registered may be received as evidence of a contract in a suit for specific 39 O.S.No.9403/2014 performance under Chapter II of the Specific Relief Act, 1877, or as evidence of any collateral transaction not required to be effected by registered document.
24. .............
25. At this stage, it is required to be noted that the proviso to Section 49 came to be inserted vide Act No.21 of 1929 and thereafter, Section 17(1A) came to be inserted by Act No. 48 of 2001 with effect from 24.09.2001 by which the documents containing contracts to transfer or consideration any immovable property for the purpose of Section 53 of the Transfer of Properties Act is made compulsorily to be registered if they have been executed on or after 2001 and if such documents are not registered on or after such commencement, then there shall have no effect for the purposes of said Section 53A. So, the exception to the proviso to Section 49 is provided under Section 17(1A) of the Registration Act. Otherwise, the proviso to Section 49 with respect to the documents other than referred to in Section 17(1A) shall be applicable."
20.14 In the judgment relied by the learned Counsel for the defendant in the case between Smt.G.Kusuma Devi V/s Smt.Gowramma and others (2006 SCC OnLine Kar 456], the Hon'ble High Court of Karnataka held that :- 40
O.S.No.9403/2014 "39. Thus, it is clear from the aforesaid dictums laid down by the Apex Court that non-
registration of the lease deed cannot create lease for a period exceeding one year. Thus, in view of non-registration of the document, no lease exceeding one year is said to have been created. However, the presumption is that the lease not exceeding one year stood created by conduct of parties. In this matter also, though the lease deed specifies the period of lease as thirty (30) years, in view of non-registration of the lease deed (Ex.D3) no lease exceeding one year is said to have been created. Thus, the tenancy in question would be only month to month tenancy and not the tenancy beyond one year."
20.15 In the judgment relied by the learned Counsel for the defendant in the case between Nexgen Edusolutions Pvt. Ltd., V/s Aspire Investments Pvt. Ltd., [(2015 SCC OnLine Del 12431), the Hon'ble High Court of Delhi held that :-
"23. The effects of non-registration of a lease- deed are automatic and applicable irrespective of the nature of tenancy or the purpose for which the same has been let. The educational institution cannot be treated any differently. The consequences of non-registration are the mandate of law and not dependent on the conduct of parties. If the lease deed is nor registered, the 41 O.S.No.9403/2014 consequences would follow irrespective of the nature of lease or conduct of parties."
21. To prove Issue No.1, the plaintiff has produced the oral evidences of its Managing Director Kurien Thomas as PW1. He has filed his affidavit by way of examination-in-chief. He has deposed in his said affidavit that on 03.08.1964, the defendant originally demised the vacant land measuring 78,986 square feet to the plaintiff. Since then, the plaintiff continued as a tenant in the said property. Out of the said property, the plaintiff returned 30,000 square feet of the land to the defendant under written agreements. On 19.08.1995, a Memorandum of Understanding was executed between the plaintiff and the defendant for lease commencing from 01.04.1995 in respect of the suit schedule property. In pursuant to the said Memorandum of Understanding, permission was granted to the defendant in Misc.No.11/1996 passed by the XVII Additional City Civil Judge, Bengaluru dated 11.10.1996 to lease the suit schedule property to the plaintiff. In view of the same, the Agreement to Lease was executed on 25.03.1998 between the plaintiff and the defendant. Since 03.08.1964, the 42 O.S.No.9403/2014 plaintiff continued to be in possession of the suit schedule property. Upon considering the application of the parties, the appropriate authority of Income Tax Department by its order dated 22.07.1998 issued No-objection Certificate to the defendant to lease the suit schedule property to the plaintiff. Supplementary Agreements were executed on 17.10.1998 and 30.03.1999 between the plaintiff and the defendant. Lease Deed dated 01.07.1999 was also executed by the defendant in favour of the plaintiff. The defendant has admitted and acknowledged it vide its Letter dated 04.09.1999. On 31.05.2014, the plaintiff has paid the stamp duty of Rs.80,93,000/- towards adjudication of the stamp duty on the Lease Deed before the jurisdictional Sub- Registrar by way of Demand Draft. On 04.09.1999, the defendant issued the Letter to the plaintiff confirming the possession of the leased land is retained with the plaintiff and acknowledging the receipt of the payment made by the plaintiff. On 21.02.2006, the defendant issued a letter to the plaintiff informing that the lease rent payable by the plaintiff as per the lease shall be increased from 01.04.2006. On 43 O.S.No.9403/2014 02.01.2013, the defendant issued a letter to the plaintiff requesting to reconcile the accounts on the property leased to the plaintiff as per Lease Agreement dated 01.07.1999. The defendant has issued the receipts of rent since 24.08.1995 and raised the invoices since 2011 for the payments of the rent to the plaintiff. The Tax Deducted at Source Exemption Certificate issued by the Income Tax Authority shows that the plaintiff was directed not to deduct TDS on the lease rent. After the defendant issued the Notice dated 24.11.2014 to the plaintiff, the defendant has stopped the receiving of the rent since January 2015. Before issuance of Notice dated 24.11.2014, the defendant never issued notice for breach to the plaintiff. The plaintiff made several request to the defendant to come forward and admit the execution of the Lease Deed before the jurisdictional Sub-Registrar for its registration. The plaintiff is ready to spend the registration charges. He is having sufficient money in his account. He is also ready and willing to register the Lease Deed and fulfill his par of contract as per the terms of the Lease Deed. But, the defendant has failed and neglected 44 O.S.No.9403/2014 to fulfill his part of contract and thereby, the defendant has breached the terms of the lease. The defendant was claiming personal inconvenience and caused the delay in registration of the Lease Deed. The plaintiff and his Manager Mr.Boven Thomas have continuously and over a long period of time met the defendant and its Manager seeking registration of the Lease Deed. Because, it was agreed to get the Lease Deed register, the plaintiff got the stamp duty on Lease Deed adjudicated and paid to avoid the technicalities or disputes. The defendant has never refused to registered the Lease Deed. But, the defendant was postponed it from time to time. The first refusal of the defendant was on 24.11.2014 when he issued the Notice to the plaintiff. The plaintiff has not sub-leased the suit schedule property. The plaintiff has not sold the suit schedule property to anybody. The plaintiff is in possession and enjoyment of the suit schedule property. The plaintiff allowed Diwakar Rao to run and operate the day-to-day business of the hotel of the plaintiff on license basis. The defendant was aware of the said fact. The plaintiff by issuing Notice dated 23.04.2012 terminated 45 O.S.No.9403/2014 the said license of Diwakar Rao. Thereafter, he filed the suit in O.S.No.25633/2014 before City Civil Court. The plaintiff filed the written statement in the said proceedings.
22. The documentary evidences produced by the plaintiff in support of the above oral evidences deposed by PW1 are the Letters dated 04.09.1999, 21.02.2006, 02.04.2013 written by the defendant to the plaintiff at Ex.P7 to Ex.P9 respectively, Rent Receipts at Ex.P10, the Letters written by the plaintiff to the defendant along with the Demand Drafts for payment of the monthly rent at Ex.P11, the Postal Acknowledgments at Ex.P12, TDS Certificates at Ex.P13, the office copy of the Legal Notice issued by the plaintiff to Diwakar Rao and others at Ex.P19, the Statutory Notice issued by the defendant to the plaintiff and others at Ex.P20, the certified copy of the Order Sheets in O.S.No.25633/2014 at Ex.P21, the certified copy of Order of the Appropriate Authority under Income Tax Act passed under Section 269- UL(1) of the Income Tax Act at Ex.P22, the Invoices for payment of rent to the defendant at Ex.P28 to Ex.P60, the Memorandum Acknowledging Receipt of Documents dated 46 O.S.No.9403/2014 03.02.2018 at Ex.P65, the Statement of Account of the plaintiff at EX.P66, the Details of the Lease Rent paid by the plaintiff to the defendant as Ex.P67, the Certificates of Registration of Trade Mark at Ex.P68 and Ex.P82, the Proforma of additional information to be furnished in triplicate along with its Annexures at Ex.P73 and Trade License at Ex.P83.
23. To prove Issue No.2, the defendant has produced the oral evidences of its Muthavalli by name M.Fuaad Musvee as DW1. He has filed his affidavit by way of his examination-in- chief wherein, he has deposed that the plaintiff is in illegal possession of the suit schedule property. The plaintiff was never in possession of the suit schedule property. Hotel Airlines owned by Diwakar Rao is in possession of the suit schedule property even this day. The defendant has already terminated the tenancy of the plaintiff by issuing notice dated 24.11.2014. The plaintiff has received the said notice. Even after lapse of 20 years, the plaintiff did not take any steps to pay the stamp duty and complete the registration of the Lease Deed. The plaintiff has paid a sum of 47 O.S.No.9403/2014 Rs.10,00,000/- to the defendant. It is acknowledged by the defendant vide letter dated 04.09.1999. The plaintiff was the defaulter in making payment towards rent. Only from May 2012, the plaintiff chosen to pay the rent to the defendant. The plaintiff has paid the stamp duty belatedly for the purpose of filing of this suit. The stamp duty paid by the plaintiff is inadequate and deficit. The plaintiff has never been diligent in discharging his obligations under the alleged Lease Deed. The plaintiff is only interested to make unlawful gain by sub-leasing the suit schedule property to the third parties or by entering into Sale Agreements without having any right, title or interest in the suit schedule property. The plaintiff was not ready and willing to perform his part of obligations under the Lease Deed.
24. In support of the above oral evidences of DW1, the defendant has produced the documentary evidences Ex.D8 to Ex.D45. Among them, Ex.D8 to Ex.D18 are the Photographs, Ex.D19 is the Compact Disc, Ex.D20 is the Certificate under Section 65B of the Indian Evidence Act, Ex.D21 is the Statutory Notice under Section 106 of the 48 O.S.No.9403/2014 Transfer of Property Act, Ex.D22 to Ex.D25 are the Postal Receipts, Ex.D26 to Ex.D29 are the Postal Acknowledgments, Ex.D30 is the Minutes of Meeting held on 12.03.1995, Ex.D31 is the copy of the Letter dated 14.08.2014 issued by the Corporation Bank to S.Diwakar Rao, Ex.D32 is the Certificate issued by the Charted Accountant, Ex.D34 is the Certificate of Registration of Airlines Hotel, Ex.D35 is the Online Document of GST, Ex.D38 is the Form No.26AS under Income Tax Act, Ex.D39 is the Certificate under Section 65B of the Indian Evidence Act, Ex.D41 is the Tax Paid Receipt for the period 2024- 2025, Ex.D42 is the certified copy of the Notice in W.P.No.11835/2014 and Ex.D43 is the Certificate under Section 65B of the Indian Evidence Act.
25. PW1 and DW1 are cross-examined by their respective adverse parties. There are some admissions in their cross- examination. PW1 has deposed in his examination-in-chief that Ex.P7 is the Letter issued by the defendant to him. Under the said Letter, the defendant has admitted the receipt of on-refundable premium amount of Rs.20,00,000/- 49
O.S.No.9403/2014 and possession of 30,000 Square Feet of land from the plaintiff. The defendant informed the plaintiff under the said letter for arrange for early payment of the necessary stamp duty and registration of Lease Deed printed on stamp paper of Rs.100/- which they have signed and handed over to the plaintiff on the said date. PW1 has deposed in his cross- examination that he has not replied to the said Letter Ex.P7 and he has not given intimation to the defendant before the payment of stamp duty. The arguments of the learned Senior Counsel for the defendant are that though, the defendant by issuing Ex.P7 has expressed his readiness and willingness to perform his part of the contract by appearing before the jurisdictional Sub-Registrar for registration of the Lease Deed, the plaintiff has not come forward to get the Lease Deed registered by paying the stamp duty on the said document. The learned Senior Counsel for the defendant has further argued that the plaintiff after payment of the stamp duty on Ex.P61 has not informed the defendant to appear before the jurisdictional Sub-Registrar to admit the execution of the said document for its registration. 50
O.S.No.9403/2014
26. During cross-examination, DW1 has admitted that he and the plaintiff have jointly applied for the Income Tax Department for clearance under Section 269-UL(1) of the Income Tax Act and pursuant to it, the order was issued as per Ex.P22. He has deposed in his cross-examination that as per Ex.P2, Ex.P23, Ex.P26, Ex.P27 and Ex.P61, the plaintiff is liable to pay the property tax on the building situated in the suit schedule property and he never issued any notice to the plaintiff for non-payment of property tax in respect of the buildings in the suit schedule property. He has further deposed that as per Ex.P10 and Ex.P11, he has received all the payments from the plaintiff. He has admitted that as per the invoices raised by him at Ex.P28, the defendant has received all the amounts from the plaintiff; prior to November 2014, he has not issued any notices to the plaintiff for non-payment of rent; he has received the premium of Rs.30,00,000/- from the plaintiff and Ex.P13 was issued at his instance.
27. The learned Counsel for the plaintiff during his augments has submitted that his possession is protected 51 O.S.No.9403/2014 under Section 53A of the Transfer of Property. But, in the present case on hand, the plaintiff cannot seek the benefit of Section 53A of the Transfer of Property Act because, it is only considered as a "shield" as it only provides protection to a transferee in possession of property against the transferor, allowing them to defend their possession and not as a tool to initiate a claim. The Hon'ble Kerala High Court in the case between Jacobs Private Limited V/s Thomas Jacob [(1994) SCC OnLine Ker 228] relied by the learned Counsel for the plaintiff held that, "9. In the above background we have to consider the resistance offered by the first defendant on the strength of Sec. 53-A, of the T.P.Act. The following postulates are sine qua non for basing a claim on Sec. 53-A(1) The contract should have been in writing signed by the transferor, (2) The transferee should have got possession of the immovable property covered by the contract. (3) The transferee should have done some act in furtherance of the contract. (4) The transferee has either performed his part of the contract or is willing to perform his part of the contract. Section 53-A makes it clear by employing the word "then" after laying down the pre-requisites that a transferee can seek refuge under it only after 52 O.S.No.9403/2014 satisfying the above pre-requisites. In other words, the bar envisaged in the section against enforcement of the transferor's right can be exercised only on compliance with the postulates. The said bar is intended to be used by a transferee only as a shield and not as a sword."
28. This is a suit filed before the Specific Relief (Amendment) Act, 2018 [Act No.18 of 2018] was come into force. In the judgment relied by the learned Counsel for the defendant in the case between Pydi Ramana Alias Ramulu V/s Davarasety Manmadha Rao [(2024) 7 SCC 515], the Hon'ble Supreme Court held that the amendment to the Specific Relief Act by Act 18 of 2018 is prospective in nature and it cannot be applied to those transaction which took place prior to amendment. Later, the Hon'ble Supreme Court in the judgment relied by the learned Counsel for the plaintiff in the case between Siddamsetty Infra Projects Pvt. Ltd. V/s Katta Sujatha Reddy and others [(2024) SCC OnLine SC 3214] held that the 2018 Amendment to Specific Relief Act does not apply retrospectively and the suit filed before 2018 Amendment Act shall be decided based on Section 10 before the amendment.
53
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29. As per Section 16(c) of the Specific Relief Act before amendment of 2018, the plaintiff shall aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, or other than the terms of the performance of which has been prevented or waived by the defendant. As per Explanation (ii) to Section 16(c) of the Specific Relief Act, the plaintiff must aver performance of, or readiness and willingness to perform the contract according to its true construction.
30. In the judgment relied by the learned Counsel for the defendant in the case between Pydi Ramana Alias Ramulu V/s Davarasety Manmadha Rao [(2024) 7 SCC 515], the Hon'ble Supreme Court held that "13. In order to obtain a decree for specific performance, the plaintiff must aver and prove that he has performed his part of the contract and has always been ready and willing to perform the terms of the contract which are to be performed by him. Section 16(c) of the Specific Relief Act mandates "readiness and willingness" of the plaintiff to be averred and proved and it is a 54 O.S.No.9403/2014 condition precedent to obtain the relief of specific performance.
"14. There is a distinction between the terms "readiness" and "willingness". "Readiness" is the capacity of the plaintiff to perform the contract which includes his financial position to pay the sale consideration. "Willingness" is the conduct of the party."
31. The Hon'ble Supreme Court in its judgment in the case between C.S.Venkatesh V/s A.S.C.Murthy (AIR 2020 SC
930) held that "16. The words 'ready and willing' imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances."
32. In the light of Section 16(c) of the Specific Relief Act, 55 O.S.No.9403/2014 Explanation (ii) of it and the above judgments, I read the pleasings and the evidences of both parties to this suit again. The plaintiff with specific averments in the plaint has stated that the defendant vide letter dated 04.09.1999, admitted the receipt of money from the plaintiff and confirmed that the plaintiff has fulfilled all the obligations as contained the Memorandum of Understanding dated 19.08.1995; the defendant has also admitted to execute the Lease Deed printed on stamp papers of Rs.100/-; the time for admitting the execution of Lease Deed was extended by the parties from time to time; thereafter, the defendant has raised invoices and the plaintiff was promptly making payments of rent to the defendant; the plaintiff has performed his obligations under the aforesaid Lease Deed dated 01.07.1999 by paying the rents to the defendant up to date without any delay or default; in spite of the plaintiff called upon the defendant to come forward and admit the execution of the Lease Deed dated 01.07.1999 before the Sub-Registrar, the defendant for the best reason known to it, is delaying the same on the ground of personal 56 O.S.No.9403/2014 inconvenience and to give effect to the same; it was agreed that the defendant shall get the Lease Deed adjudicated and thereafter, the plaintiff shall admit execution before the jurisdictional Sub-Registrar; on 31.05.2014, the authority adjudicated the stamp duty of Rs.77,07,665/- and fine of Rs.3,85,335/- on the said Lease Deed; the plaintiff has paid the said amount to the appropriate authority and the plaintiff is always ready and willing to perform his part of contract but, the defendant is not coming forward to admit the execution of the Lease Deed before the Sub-Registrar. From these plaint averments, the plaintiff has averred his readiness and willingness to perform his part of contract.
33. Ex.P61 is the Lease Deed executed between the plaintiff and the defendant in furtherance of the terms and conditions enumerated under Ex.P23. There are several terms and conditions agreed between the plaintiff and the defendant in Ex.P23 and Ex.P61 out of which, some of the terms and conditions are pre-requisites for execution and registration of Ex.P61 and some of the terms and conditions are required to be performed after execution and 57 O.S.No.9403/2014 registration of the said document. One among such conditions is payment of the non-refundable premium amount by the plaintiff to the defendant. It appears from the contents of Ex.P23 that the plaintiff has agreed to pay a sum of Rs.30,00,000/- to the defendant as a non-refundable premium in consideration of the lease out of which, on the date of execution of Ex.P2 itself, the plaintiff has paid Rs.10,00,000/- to the defendant by way of Demand Drafts. The said payment was acknowledged by the defendant in Ex.P2, Ex.P23 and Ex.P61. As per the contents of Ex.P23, the defendant has received Rs.10,00,000/- from the plaintiff demand drafts and the defendant has acknowledged its receipt in Ex.P23. As per the contents of Ex.P7 and Ex.P61, before execution of Ex.P61 on 04.09.1999 itself, the defendant has received Rs.10,00,000/- from the plaintiff through Demand Drafts and the defendant has acknowledged the receipt of the same in Ex.P61. Thus, the plaintiff has paid the entire non-refundable premium of Rs.30,00,000/- from the plaintiff as agreed in Ex.P2, Ex.P23 and Ex.P61. Whether it is paid by the plaintiff as contended 58 O.S.No.9403/2014 by him or partly paid by the plaintiff and partly paid by Diwakar Rao as contended by the defendant is immaterial. However, the defendant in the documents has acknowledged the receipt of the non-refundable premium of Rs.30,00,000/- from the plaintiff and thereby, the plaintiff has performed his said part of contract as agreed in Ex.P23.
34. As per the terms and conditions agreed between the plaintiff and the defendant in Ex.P23, another term and condition is that the parties to the said document shall execute and register the Lease Deed within 90 days from the date of receipt of all statutory clearances including the receipt of the necessary "No-objection Certificate" under Section 269 UL of the Income Tax Act from the Appropriate Authority, Income Tax Department in respect of the said Agreement. Ex.P22 is the Order issued by the Appropriate Authority, Income Tax Department and the same has been acknowledged by both parties in Ex.P61. DW1 during his cross-examination has admitted that he and the plaintiff have jointly applied the Income Tax Department for clearance under Section 269-UL of the Income Tax Act and 59 O.S.No.9403/2014 pursuant to which, the order was issued as per Ex.P22. Thereby, the plaintiff has performed his said part of contract as agreed in Ex.P23.
35. As per the terms and conditions agreed between the plaintiff and the defendant in Ex.P23, another term and condition is that the plaintiff ought to have been surrender vacant possession of 30,000 square feet of the land out of 78,977 Square Feet to the defendant by demolishing all or any of the existing building and structure thereon before registration of the Lease Deed completed. It appears from the contents of Ex.P7 that on the date of execution of Ex.P61, the plaintiff has handed over the vacant possession of 30,000 square feet land to the defendant and thereby, the plaintiff has also performed his said part of contract as agreed under Ex.P23.
36. As per Ex.P23 and Ex.P61, the tenancy of the plaintiff on the suit schedule property was commenced from 01.04.1995 and the plaintiff ought to have been paid the monthly rent as stipulated therein. Admittedly, the plaintiff 60 O.S.No.9403/2014 has paid the monthly rent to the defendant as agreed till the defendant issued Notice of termination of lease dated 24.11.2014 to the plaintiff for which, the defendant has issued the Receipts as per Ex.P10 and the Vouchers as per Ex.P28 to Ex.P60. DW1 has admitted the issuance of the said documents by him to the plaintiff. DW1 has deposed that prior to November 2014, he has not issued any notices to the plaintiff for non-payment of rent. Thereby, the plaintiff has also performed his said part of contract as agreed under Ex.P23 and Ex.P61.
37. It appears from the contents of Ex.P61 that the plaintiff and the defendant before execution of the said document have complied with all the terms and conditions agreed between them in Ex.P23 which were pre-requisite to execute and register the Lease Deed in respect of the suit schedule property. Because in Ex.P61, it is specifically stated that the parties thereto have deemed it fit to execute the said Deed in pursuance of the Agreement dated 25.03.1998 i.e., Ex.P23. The performance of all other terms and conditions agreed between the plaintiff and the defendant under Ex.P23 were 61 O.S.No.9403/2014 post execution i.e., after execution and registration of Ex.P61. Admittedly, the defendant has executed Ex.P61 as per the terms and conditions of Ex.P23. The only terms and conditions required to be performed as per the terms and conditions was payment of Stamp Duty on Ex.P61 and its registration before the jurisdictional Sub-Registrar. The defendant by writing Ex.P7 has requested the plaintiff to make arrangements to do the same.
38. As per the terms and conditions agreed between the plaintiff and the defendant under Ex.P23 and Ex.P61, the Stamp Duty, Registration Fees, Legal Fees and all incidental charges and expenses of the registration of the Lease Deed shall be borne by the plaintiff. Though, the plaintiff has performed all the above terms and conditions of his part of the contract, he has not performed this part of contract. If the said part of contract is not performed, the object and purpose of the contract will be frustrated. At the time of execution of Ex.P61, the Stamp Duty paid on the said document was Rs.100/-. It appears from the contents of Ex.P61 that on 29.05.2014, the said document was 62 O.S.No.9403/2014 impounded by the District Registrar and the Deputy Commissioner of Stamps, Shivajinagar, Bengaluru under Section 33 of the Karnataka Stamp Act. It further appears from the contents of the said document that after adjudication of the said document, on 31.05.2014, the plaintiff has paid the Stamp Duty and Penalty on the said document. Till then, the plaintiff has neither paid stamp duty on the said document nor presented it before the jurisdictional Sub-Registrar's Office for registration.
39. The only allegation of the plaintiff made in the plaint against the defendant is that the plaintiff called upon the defendant to come forward and admit the execution of the Lease Deed dated 01.07.1999 before the Sub-Registrar; the defendant for the best reason known to it is delaying the same on the ground of personal inconvenience and to give effect to the same; it was agreed that the plaintiff shall get the Lease Deed adjudicated and thereafter, the defendant shall admit execution before the jurisdictional Sub- Registrar. But, the oral evidences of PW1 deposed in his examination-in-chief are that he made several requests to 63 O.S.No.9403/2014 the defendant to come forward and admit the execution of the Lease Deed before the jurisdictional Sub-Registrar by registering the same and he is ready to spend the registration charges and having sufficient money in his account and also he is ready and willing to register the same and fulfilling his part of contract as per the terms and conditions of the Lease Deed. But, the defendant failed and neglected to fulfill his part of contract and thereby, the defendant has breached the terms of the lease.
40. To prove the fact that the plaintiff called upon the defendant to come forward and admit the execution of the Lease Deed dated 01.07.1999 before the Sub-Registrar; the defendant for the best reason known to it is delaying the same on the ground of personal inconvenience and to give effect to the same, the plaintiff has not produced any documentary evidences. It appears from the contents of Ex.P7 that on the date of execution of Ex.P61 itself, the defendant by writing a letter has informed the plaintiff arrange for early payment of the necessary Stamp Duty and registration of the Lease Deed executed between them. 64
O.S.No.9403/2014 Admittedly, the plaintiff has not replied to the said letter of the defendant. Though, the provisions of Karnataka Stamp Act does not stipulate the specified time within which, the proper Stamp Duty shall be paid on the document, under Section 23 of the Registration Act, the time specified for presenting the document for registration is four months from the date of execution. Admittedly, after execution of Ex.P61 and before filing of this suit, the plaintiff has neither issued any written communication nor any notice to the defendant that he is ready with money to pay the Stamp Duty on Ex.P61 and to spend the registration charges as agreed therein and to come and admit the execution of Ex.P61 before the office of the jurisdictional Sub-Registrar. It is not the case of the plaintiff that within the said stipulated period of four months from the date of the execution of Ex.P61, he has presented it for its registration or thereafter as contemplated under Section 25 of the Registration Act. The plaintiff has also not informed the defendant that he has presented Ex.P61 for its registration and to come and admit its execution before the 65 O.S.No.9403/2014 jurisdictional Sub-Registrar.
41. To prove the fact averred in the plaint that it was agreed that the plaintiff shall get the Lease Deed adjudicated and thereafter, the plaintiff shall admit execution before the jurisdictional Sub-Registrar, the plaintiff has not produced any evidences. It is further averred by the plaintiff in the plaint that he having got the Stamp Duty adjudicated for the Lease Deed was on the firm belief that the defendant would come around the bench any day and admit execution of the said Lease Deed. PW1 in his cross-examination has admitted that he has not given intimation to the defendant before payment of the Stamp Duty dated 30.01.2014 on Lease Deed. It is not the case of the plaintiff that even after payment of Stamp Duty and Penalty on Ex.P61, he informed the plaintiff that he did so.
42. To prove the oral evidences of PW1 that the plaintiff had sufficient money in his account to pay the Stamp Duty on Ex.P61 and to spend the registration charges, he has also not produced any documentary evidences. Till Ex.P61 was impounded on 29.05.2014, the plaintiff has not 66 O.S.No.9403/2014 submitted the said document for adjudication before the competent authority. The plaintiff has also not presented Ex.P61 before the jurisdictional office of the Sub-Registrar as per Sections 23 and 25 of the Registration Act and not taken any steps to enforce the appearance of the defendant under Section 38 of the Registration Act to admit the execution of Ex.P61 before the jurisdictional Sub-Registrar. The above conducts of the plaintiff clearly shows that the plaintiff was not ready and willing to perform his part of contract as contended by him and he was never diligent in performing his part of contract. For the above reasons, the plaintiff has not proved that he is ready and willing to perform his part of contract as per the terms and conditions set out in the lease agreement dated 25.03.1998 and lease deed dated 01.07.1999. On the other hand, the defendant has proved that the plaintiff was never diligent in discharging his obligations as per the lease agreement. The conduct of the defendant that the defendant has received the rent from the plaintiff till the defendant issued Termination Notice, the defendant received due payments 67 O.S.No.9403/2014 from Diwakar Rao and the defendant allowed Diwakar Rao to obtain the Trade License are not facts and circumstances to be considered in this case. Hence, I answer Issue No.1 in the Negative and Issue No.2 in the Affirmative.
43. ADDITIONAL ISSUE No.1 FRAMED ON 10.09.2015 :-
One of the defences of the defendant in the written statement is that the plaintiff has not paid proper Court fee.
Therefore, this issue is framed by this Court.
44. I read the Valuation Slip filed by the plaintiff along with the plaint. It appears from the said Valuation Slip that the plaintiff valued the suit under Section 41 of the Karnataka Court Fees and Suits Valuation Act. The valuation of the suit as Rs.8,38,652/- based on 12 months rent involved in all the lease deeds. The plaintiff has paid the Court fee of Rs.53,000/-.
45. This suit of the plaintiff against the defendant is for Specific Performance of contract i.e., Agreement of Lease dated 25.03.1998 and Lease Deed dated 01.07.1999 and consequential relief of permanent injunction. Section 41 of 68 O.S.No.9403/2014 the Karnataka Court Fees and Suits Valuation Act read as follows:
41. Suits between landlord and tenant : (1) In the following suits between landlord and tenant in Civil Courts, namely :
(a) for the delivery by a tenant of the counterpart of a lease or for acceptance of patta in exchange for muchalika;
(b) for enhancement of rent;
(c) for the delivery by a landlord of a lease or for obtaining a patta in exchange for a muchalika;
(d) for recovering occupancy of immovable property from which a tenant has been illegally ejected by the landlord:
(e) for establishing or disproving a right of occupancy;
Fee shall be levied on the amount of rent for the immovable property to which the suit relates, payable for the year next before the date of presenting the plaint.
(2) In a suit for recovery of immovable property from a tenant including a tenant holding over after the termination of a tenancy, fee shall be computed on the premium, if any, and on the rent payable for the year next before the date of presenting the plaint.
69
O.S.No.9403/2014 Explanation : Rent included also damages for use and occupation payable by a tenant holding over.
46. If the reliefs claimed by the plaintiff in the present suit are considered along with Section 41 of the Karnataka Court Fees and Suits Valuation Act, prima-facie it appears that the plaintiff has wrongly valued the relief of specific performance of contract under Section 41 of the Karnataka Court Fees and Suits Valuation Act. Because, the relief of specific performance of contract claimed by the plaintiff in present suit is not within the ambit enumerated under Section 41 of the Karnataka Court Fees and the Suits Valuations Act. The plaintiff ought to have been valued the suit under Section 40 of Karnataka Court Fees and Suits Valuation Act. For the relief of specific performance of contract as prayed by the plaintiff in this suit, Section 40(3) of the Karnataka Court Fees and Suits Valuation Act is applicable. Section 40(3) of the Karnataka Court Fees and Suits Valuation Act reads as follows:
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40. Suits for specific performance :- In a suit for specific performance, whether with or without possession, fee shall be payable -
(a)
(b)
(c) in the case of contract of lease, computed on the aggregate amount of the fine or premium, if any and of the average of the annual rent agreed to be paid;
(d)
(e)
47. Under the Lease Agreement dated 25.03.1998, the aggregate premium is Rs.30,00,000/- and the average annual rent is Rs.28,16,200/-. Likewise, under Lease Deed dated 01.07.1999, the aggregate premium is Rs.30,00,000/- and the average annual rent is Rs.28,16,200/-. Under the above two documents, the total aggregate premium is Rs.60,00,000/- and the total average annual rent is Rs.56,32,400/-. Thus, the plaintiff shall pay the Court fee on Rs.1,16,32,400/-. Under Article (1)(xvi) of Schedule-I of the Karnataka Court Fees and Suits Valuation Act, the plaintiff shall pay Court fee of Rs.2,65,287/-. The plaintiff has paid the Court fee of Rs.53,000/-. The plaintiff is due to pay 71 O.S.No.9403/2014 Court of fee of Rs.2,12,287/- for the relief of specific performance of contract.
48. Though, the plaintiff has claimed the consequential relief of permanent injunction, he has not valued the said relief and he has not paid the Court fee on the said relief. The plaintiff ought to have been valued the said relief under Section 26(c) of the Karnataka Court Fees and Suits Valuation Act and paid the Court fee of Rs.25/-. For the above reasons, the plaintiff is due to pay total Court fee of Rs.2,12,312/-. Under these circumstances, it is held that the plaintiff has not paid the proper Court fee. Hence, I answer Additional Issue No.1 framed on 10.09.2015 in the Negative.
49. ADDITIONAL ISSUES No.1 TO 3 FRAMED ON 05.02.2024 :- The findings on these issues are inter- related. Therefore, these issues are taken together for consideration.
To prove these issues, the 1 st defendant has produced the oral evidences of its Mutthavalli by name M.Fuaad 72 O.S.No.9403/2014 Musvee as DW1. He has deposed in his affidavit filed by way of his examination-in-chief that the plaintiff has executed Memorandum of Understanding dated 04.08.1995 with M/s Esteem Enterprises represented by S.N.S.Rao to contribute 50% of the premium of Rs.30,00,000/- in respect of the suit schedule property; the plaintiff has played fraud upon the defendant by not disclosing the execution of the said documents; the said act of the plaintiff is contrary to the permission granted by this Court; the defendant learn that the plaintiff has entered into an Agreement of Sale dated 10.02.2001 with P.Dayananda Pai agreeing to sell 50% of the super built up area of the proposed development; the execution of the said document is also contrary to the terms and conditions of Memorandum of Understanding dated 19.08.1995 and Agreement of Lease dated 25.03.1998 entered into between the plaintiff and the defendant; the plaintiff has no right, title or interest to entered into such Agreement of Sale; therefore, the plaintiff is not entitled for the relief of specific performance of contract. P.Dayananda Pai has assigned all his right and interest acquired under 73 O.S.No.9403/2014 the Agreement of Sale dated 10.02.2001 in favour of M/s Dynasty Developers Pvt. Ltd., now known as M/s Embassy Property Developments Pvt. Ltd., by an Agreement of Assignment dated 12.11.2007; it is also not permissible as the plaintiff is not the owner of the suit schedule property; he has no right to execute any agreements of sale to third party and thus, the plaintiff has played fraud on the defendant.
50. In support of the above oral evidences, the defendant has produced the copies of the Memorandum of Understanding dated 04.08.1995 executed between K.Thomas and S.N.S.Rao as Ex.D33 and the Public Notices issued in Prajavani and Deccan Herald Newspapers dated 29.05.2010 as Ex.D36 and Ex.D37. These are the only three documents produced by the defendant to prove these Issues.
51. Ex.D33, Ex.D36 and Ex.D37 are Xerox copies of the documents and they were marked through DW1 with the objections of the learned Counsel for the plaintiff to mark the said documents in evidence. The objections of the learned Counsel for the plaintiff was that the said 74 O.S.No.9403/2014 documents are the Xerox copies of the documents and they cannot be admitted as secondary evidence without producing the original documents. Per contra, the arguments of the learned Counsel for the defendant were that the originals of the said documents are with the plaintiff and in spite of the orders of this Court, the plaintiff has not produced the originals of the said documents. Moreover, this Court allowed the defendant to produce the secondary evidences of the said documents before this Court.
52. It appears from the records that the defendant has filed I.A.No.XVII under Order XI Rule 14 of the Code of Civil Procedure to produce the documents including the Memorandum of Understanding dated 04.08.1995. The said I.A. was rejected by this Court vide order dated 22.01.2024 and the said order was confirmed by the Hon'ble High Court of Karnataka in W.P.No.4267/2024 dated 13.03.2024. It appears from the orders of this Court dated 22.01.2024 that as the plaintiff has not disclosed the existence of the Memorandum of Understanding dated 04.08.1995 in his objection and as per the version of the defendant that the 75 O.S.No.9403/2014 plaintiff has not admitted the execution of the Sale Agreement dated 04.08.1995, the plaintiff cannot be directed to produce the said documents. This Court vide order dated 07.06.2024 while passing the orders on I.A.No.XX permitted the defendant to produce the secondary evidences the Memorandum of Understanding dated 04.08.1995 and the Public Notices published in Prajavani and Deccan Herald Newspapers subject to the objections raised by the learned Counsel for the plaintiff and its appreciation.
53. Section 65 of the Indian Evidence Act say under which cases, the secondary evidence relating to the documents may be given. Section 65 of the Indian Evidence Act reads as follows :-
65. Cases in which secondary evidence relating to document may be given.- Secondary evidence may be given of the existence, condition or contents of a document in the following cases :-
(a) When the original is shown or appears to be in the possession or power -
of the person against whom the document is sought to be proved, of any person out of reach of, or not subject to, the process of the Court, or 76 O.S.No.9403/2014 of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) When the original is of such a nature as not to be easily movable;
(e) When the original is a public document within the meaning of section 74;
(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;
(g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.77
O.S.No.9403/2014 In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible.
In case (b), the written admission is admissible. In case (e) or (f), a certified copy of document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
54. In the light of the above provision, I read the pleadings and the evidences produced by both parties to this suit both oral and documentary. The specific pleadings of the defendant is that the Memorandum of Understanding dated 04.08.1995 was entered into between the plaintiff and M/s Esteem Enterprises represented by S.N.S.Rao to contribute 50% of the premium of Rs.30,00,000/- in respect of the suit schedule property. DW1 has deposed the said facts in his affidavit filed by way of examination-in-chief. The defendant has produced the Xerox copy of the said Memorandum of Understanding dated 04.08.1995 as Ex.D33. Prima-facie it appears from the contents of the said document that K.Thomas as Managing Partner of M/s India Wood and 78 O.S.No.9403/2014 Industries and S.N.S.Rao have executed the said document. PW1 has admitted in his cross-examination that Diwakar Rao, S/o S.N.S.Rao has filed a suit in O.S.No.25633/2014 to enforce the Memorandum of Understanding dated 04.08.1995. The Xerox copy of the said the Memorandum of Understanding dated 04.08.1995 was confronted to PW1 during his cross-examination by the learned Counsel for the plaintiff for which, he has deposed that he has to search for the said document. Ex.D44 is the certified copy of the Written Statement filed by the plaintiff herein before the Court in O.S.No.25633/2014. It appears from the contents of the said document that the plaintiff herein has denied the execution of the Memorandum of Understanding dated 04.08.1995. The defendant neither in his written statement nor DW1 in his oral evidences has disclosed the custody of the original of the Memorandum of Understanding dated 04.08.1995 with the plaintiff. Therefore, mere filing application to summon the original document from the plaintiff is not sufficient to lay down the foundation to produce the secondary evidence of a document. 79
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55. DW1 has deposed in his cross-examination that he has not seen the original of Memorandum of Understanding dated 04.08.1995 and therefore, he has no personal knowledge to say that Ex.D33 is the Photo copy of the original. He has further deposed that Ex.D33 was in O.S.No.25633/2014 produced by Diwakar Rao. In the light of the said oral evidence of DW1, I read the certified copy of the Plaint in O.S.No.25633/2014 produced by the plaintiff herein before this Court in O.S.No.1281/2016 as Ex.D39. It appears from the contents of the said Plaint that Diwakar Rao has produced the original of the Memorandum of Understanding dated 04.08.1995 before the Court. It is an admission of Diwakar Rao in a judicial proceedings which has evidentiary value. Ex.D33 is Photo copy. Unless the defendant get Ex.D33 from any one else, it cannot be available to the defendant to receive the said document as the original of the same was produced by Diwakar Rao before the Court. The defendant has not stated that who gave Ex.D33 to him. The defendant has not taken any steps to summon the original Memorandum of Understanding 80 O.S.No.9403/2014 dated 04.08.1995 either from Diwakar Rao or from the Court in which, Diwakar Rao produced the said document. Therefore, the defendant has not made out sufficient reasons to consider Ex.D33 as a secondary evidence of Memorandum of Understanding dated 04.08.1995. When Ex.D33 cannot be considered as a secondary evidence of the document, it cannot be relied as a proof of the fact in issue that the plaintiff has executed a Memorandum of Understanding dated 04.08.1995 with M/s Esteem Enterprises in respect of the suit property and thereby played fraud upon the defendant.
56. I read the contents of Ex.D36 and Ex.D37. The contents of the said documents are that M/s AZB and Partners, Advocates and Solicitors have issued a Public Notice on behalf of their client M/s Embassy Property Developments Pvt. Ltd., stating that K.Thomas and Kurien Thomas of Indian Wood and Industries by an Agreement of Sale dated 10.02.2001 have agreed to sell 50% of the super built up area which they would be entitled to in the development on the property known as "Airlines Hotel", 81 O.S.No.9403/2014 bearing No.4, Madras Bank Road, Bangalore - 01 measuring 48,977 Square Feet to Mr.P.Dayanada Pai who in turn has assigned all its right, title and interest under the said agreement for Sale dated 10.02.2001 in favour of M/s Dynasty Developers Pvt. Ltd., known as M/s Embassy Property Developments Pvt. Ltd., by an Agreement of Assignment dated 12.11.2007. Accordingly, M/s Embassy Property Developments Pvt. Ltd., (Formerly M/s Dynasty Developers Pvt. Ltd.) are entitled to 50% of the super built up area in the building to be constructed on the property known as "Airlines Hotel", bearing No.4, Madras Bank Road, Bangalore - 01 which would fall to share of K.Thomas and Kurien Thomas of Indian Wood and Industries vide Assignment Agreement dated 12.11.2007. What can be proved by the said documents is only the admission of the facts by M/s Embassy Property Developments Pvt. Ltd. that K.Thomas and Kurien Thomas of Indian Wood and Industries by an Agreement of Sale dated 10.02.2001 have agreed to sell 50% of the super built up area which they would be entitled to in the development on the property 82 O.S.No.9403/2014 known as "Airlines Hotel", bearing No.4, Madras Bank Road, Bangalore - 01 measuring 48,977 Square Feet to Mr.P.Dayanada Pai who in turn has assigned all its right, title and interest under the said agreement for Sale dated 10.02.2001 in favour of M/s Dynasty Developers Pvt. Ltd., known as M/s Embassy Property Developments Pvt. Ltd., by an Agreement of Assignment dated 12.09.2007.
57. Now, the question is whether Ex.D3 and Ex.D37 can be considered as secondary evidence relating to the Newspapers dated 21.05.2010. The answer is in the negative. The reasons are that Ex.D36 and Ex.D37 are the Xerox copies of the Public Notices published in Prajavani and Deccan Herald Newspapers dated 21.05.2010 which contain only the seal and signature of the Printers (Mysore) Pvt. Ltd. They are not the certified copies of the originals. Newspapers are the documents which are printing as number of documents and all are made by one uniform process. The defendant has not laid any foundation to permit him to produce the secondary evidence of the Newspapers dated 21.05.2010 as Ex.D36 and Ex.D37. Therefore, Ex.D36 and Ex.D37 cannot be 83 O.S.No.9403/2014 considered as a secondary evidence of the Newspapers dated 21.05.2010.
58. At the instance of the defendant, the summons was issued to M/s Embassy Property Developments Pvt. Ltd. to produce the originals of the Sale Agreement dated 10.02.2001 and Assignment Agreement dated 12.11.2007. In response to the said summons, the Deputy General Manager of M/s Embassy Property Developments Pvt. Ltd. has appeared before this Court and filed his affidavit stating that the said company does not have any such documents. He was called by this Court for cross-examination on behalf of the defendant. During his cross-examination, nothing has been elicited in his cross-examination to disbelieve the contents of his affidavit filed before this Court. For the above reasons, the defendant has not proved that contrary to the terms and conditions of the Memorandum of Understanding dated 19.08.1995 and agreement of Lease dated 25.03.1998 executed between the plaintiff and the defendant, the plaintiff entered into an Agreement of Sale dated 10.02.2001 with P.Dayananda Pai agreeing to sell 50% of the super built 84 O.S.No.9403/2014 up area of the proposed development to defraud the defendant for which, the plaintiff has no right and Mr.P.Dayananda Pai had in turn executed an Agreement of Assignment dated 12.11.2007 in favour of M/s Dynasty Developers Pvt. Ltd in respect of suit property and thereby played by fraud on the defendant. Hence, I answer Additional Issues No.1 to 3 framed on 05.02.2024 in the Negative.
59. ADDITIONAL ISSUE No.1 DATED 27.09.2024 :- One of the defences of the defendant is that the suit is barred by limitation. In the light of the said defence, I perused the plaint averments.
60. As stated above, this suit is filed by the plaintiff against the defendant for Specific Performance of Contract i.e., the Agreement to Lease dated 25.03.1998 and the Lease Deed dated 01.07.1999 and Permanent Injunction. In para III of the plaint, the cause of action averred by the plaintiff are that the cause of action for this suit arose on 11.10.1996, when the judgment and decree in Miscellaneous No.11/1996 was passed; on 25.03.1998, when the Agreement of Lease 85 O.S.No.9403/2014 was executed between the plaintiff and the defendant; on all the dates when the plaintiff and the defendant submitted application; on 22.07.1998, when permissions were obtained from the Statutory Authorities; on 01.07.1999, when Lease Deed was executed between the plaintiff and the defendant; on 04.09.1999, when the defendant admitted and acknowledge the execution of the Lease Deed; on 24.11.2014, when the defendant issued the Legal Notice on the plaintiff and on all other dates as referred in the plaint which is a continuing cause of action till date.
61. As per the pleadings of the plaintiff, the cause of action are that on 01.07.1999, the plaintiff and the defendant have executed a Lease Deed; the defendant vide letter dated 04.09.1999, admitted the receipt of money from the plaintiff and confirmed that the plaintiff has fulfilled all the obligations as contained the Memorandum of Understanding dated 19.08.1995; the defendant has also admitted to execute the Lease Deed printed on stamp papers of Rs.100/-; the time for admitting the execution of Lease Deed was extended by the parties from time to time; thereafter, the 86 O.S.No.9403/2014 defendant has raised invoices and the plaintiff was promptly making payments of rent to the defendant; the plaintiff has performed his obligations under the aforesaid Lease Deed dated 01.07.1999 by paying the rents to the defendant up to date without any delay or default; in spite of the plaintiff called upon the defendant to come forward and admit the execution of the Lease Deed dated 01.07.1999 before the Sub-Registrar, the defendant for the best reason known to it is delaying the same on the ground of personal inconvenience and to give effect to the same; it was agreed that the plaintiff shall get the Lease Deed adjudicated and thereafter, the plaintiff shall admit execution before the jurisdictional Sub-Registrar; on 31.05.2014, the authority adjudicated the stamp duty of Rs.77,07,665/- and fine of Rs.3,85,335/- on the said Lease Deed; the plaintiff has paid the said amount to the appropriate authority; the plaintiff is always ready and willing to perform his part of contract; but, the defendant is not coming forward to admit the execution of the Lease Deed before the Sub-Registrar and on 87 O.S.No.9403/2014 24.11.2014, the defendant issued a Legal Notice to the plaintiff terminating the tenancy of the plaintiff.
62. The oral arguments of the learned Senior Counsel for the defendant are that in-furtherance of the order of the Court dated 11.10.1996 passed in Misc. No.11/1996 and the Agreement to Lease dated 25.03.1998 executed between the plaintiff and the defendant, on 04.09.1999, the Lease Deed was executed between them. On the very same day, the defendant informed the plaintiff through Ex.P7 to arrange for early payment of necessary stamp duty and registration of the Lease Deed that they have singed and handed over to him on the said date. Thereafter, till filing of the present suit, the plaintiff never made any attempt to pay the stamp duty and to present the Lease Deed for its registration. Except oral evidences of PW1, the plaintiff has not produced any other evidences to prove the facts that in spite of the plaintiff called upon the defendant to come forward and admit the execution of the Lease Deed dated 01.07.1999 before the Sub-Registrar, the defendant for the best reason known to it is delaying the same on the ground of personal 88 O.S.No.9403/2014 inconvenience and to give effect to the same and it was agreed that the plaintiff shall get the Lease Deed adjudicated and thereafter, the plaintiff shall admit execution before the jurisdictional Sub-Registrar. In view of Article 54 of the Limitation Act, the plaintiff ought to have been filed the suit within 3 years. Therefore, the suit is barred by limitation.
63. In support of the above arguments, the learned Counsel for the defendant has relied the judgment in the case between K.S.Vidyanadam and others V/s Vairavan [(1997) 3 SCC 1], the Hon'ble Supreme Court of the Hon'ble Supreme Court held that:
"10. It has been consistently held by the Courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation not with 89 O.S.No.9403/2014 standing the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time-limit(s) specified in the agreement have no relevance and can be ignored with impunity? It would also mean denying the discretion vested in the Court by both Sections 10 and 20."
64. Per-contra, the learned Counsel for the plaintiff argued that under Agreement of Lease dated 25.03.1998 and the Lease Deed dated 01.07.1999, the date is not fixed for the performance of contract. Such being the circumstances, as per Article 54 of the Limitation Act, the period of limitation is 3 years from the date when the plaintiff has noticed that the performance is refused by the defendant. In the present case on hand, the defendant did continuous breach of contract and the defendant by issuing the Notice of termination of lease dated 24.11.2014 has refused to perform his part of contract and therefore, the period of limitation begins to run from the date of service of the said Notice of the termination 90 O.S.No.9403/2014 of lease. From the said date, the suit is within the period of limitation. In support of the above arguments, the learned Counsel for the plaintiff has relied the following judgments :-
(i) The judgment of the Hon'ble Supreme Court in the case between Rathnavathi & another V/s Kavita Ganashamdas [(2015) 5 SCC 223] wherein, it is held that:
"A mere reading of Article 54 of the Limitation Act would show that if the date is fixed for performance of the agreement, then non- compliance with the agreement on the date would give a cause of action to file suit for specific performance within three years from the date so fixed. However, when no such date is fixed, limitation of three years to file a suit for specific performance would begin when the plaintiff has noticed that the defendant has refused the performance of the agreement."
ii. The judgment of the Hon'ble Supreme Court in the case between Siddamsetty Infra Projects Pvt. Ltd. V/s Katta Sujatha Reddy and others [(2024) SCC OnLine SC 3214] wherein, it is held that:
"22. The provision has two parts. The first part deals with situations where the contract fixes a date for performance. The period of limitation of three years runs from the date fixed for completion of performance. The second part deals 91 O.S.No.9403/2014 with situations where the contract does not fix a date for the performance of contract. In such situations, the period of limitation runs from the date when the plaintiff has notice that the defendant has refused performance."
(iii) The judgment of the Hon'ble Supreme Court in the case between Samruddhi Co-Operative Housing Society Ltd. V/s Mumbai Mahalaxmi Construction Pvt. Ltd. [(2022) 4 SCC 103] wherein, it is held that:
"Section 2 of the Limitation Act, 1963 provides for the computation of limitation in the case of a continuing breach of contract or tort. It provides that in case of a continuing breach of contract, a fresh period of limitation begins to run at every moment of time during which the breach continues."
(iv) The judgment of the Hon'ble Supreme Court in the case between Laxmi Pat Surana V/s Union Bank of India & another [(2021) 8 SCC 481] wherein, it is held that:
"Ordinarily, upon declaration of the loan account/debt as NPA that date can be reckoned as he date of default to enable the financial creditor to initiate action under Section 7 IBC. However, Section 7 comes into play when the corporate debtor commits "default". Section 7, consciously uses the expression "default" - not the date of notifying the loan account of the 92 O.S.No.9403/2014 corporate person as NPA. Further, the expression "default" has been defined in Section 3(12) to mean non-payment of "debt" when whole or any part of installment of the amount of debt has become due and payable and is not paid by the debtor or the corporate debtor, as the case may be. In cases where the corporate person has offered guarantee in respect of loan transaction, the right of the financial creditor to initiated action against such entity being a corporate debtor (corporate guarantor), would get triggered the moment the principal borrower commits default due to non-payment of debt. Thus, when the principal borrower and/or the (corporate) guarantor admit and acknowledge their liability after declaration of NPA but before the expiration of three years therefrom including the fresh period of limitation due to (successive) acknowledgments, it is not possible to extricate them from the renewed limitation accruing due to the effect guarantor (corporate debtor), as the case may be, acknowledge their liability to pay the debt. Such acknowledgment, however, must be before the expiration of the prescribed period of limitation including the fresh period of limitation due to acknowledgment of the debt, from time to time, for institution of the proceedings under Section 7 IBC. Further, the acknowledgment must be of a liability in respect 93 O.S.No.9403/2014 of which the financial creditor can initiate action under Section 7 IBC."
65. It is clear from Article 54 of the Limitation Act and the first two judgments relied by the learned Counsel for the plaintiff that Article 54 of the Limitation Act prescribes a period of limitation of 3 years for a suit for specific performance of contract. Such period is to be reckon from the date fixed for performance of the contract and in case no date for such performance is fixed, then from the date the plaintiff has noticed that the performance is refused by the defendant. In Ex.P23, the time stipulated to execute and register the Lease Deed was within 90 days from the date of receipt of all statutory clearances including the receipt of the necessary "No objection Certificate" under Section 269 UL of the Income Tax Act from the Appropriate Authority, Income Tax Department in respect of the said agreement. It appears from the contents of Ex.P22 that on 22.07.1998, the Order under Section 269-UL(1) of the Income Tax Act was passed by the Appropriate Authority, Income Tax Department. It appears from the contents of Ex.P26 that before its execution itself, Ex.P22 was already received. It further 94 O.S.No.9403/2014 appears from the said document that at the request of the plaintiff, the defendant has extended the time for execution and registration of the Lease Deed and to hand over the vacant possession of 30,000 square feet property by the plaintiff to the defendant till 31.03.1999. It appears from the contents of Ex.P27 that by executing Supplemental Agreement dated 30.03.1999, at the request of the plaintiff, the defendant has extended the time for execution and registration of the Lease Deed and to hand over the vacant possession of 30,000 square feet property by the plaintiff to the defendant till 30.06.1999.
66. Thereafter, Ex.P61 was executed on 01.07.1999. It was executed in furtherance of the terms and conditions agreed between the parties. In Ex.P61, no time is specified for registration of the said document. It appears from the contents of the said document that as on the date of its execution, the plaintiff and the defendant have deemed it fit to execute the said document in pursuance of Agreement of Lease dated 25.03.1998. Therefore, it is clear from the said contents of Ex.P61 that before its execution, all the pre- 95
O.S.No.9403/2014 requisites to execute the Lease Deed are performed by both parties to Ex.P23. The only part of the obligation to be performed by the plaintiff as on the execution of Ex.P61 was payment of Stamp Duty and to present the document before the jurisdictional Sub-Registrar for its registration. On 04.07.1999, the defendant issued the Letter to the plaintiff as per Ex.P7 requesting him for early payment of necessary Stamp Duty and registration of the Lease Deed signed by them. It shows that the defendant was ever ready to perform its part contract i.e., to admit the execution of Ex.P61 before the jurisdictional Sub-Registrar. Thereafter, till filing of this suit, the plaintiff never demanded the defendant that the plaintiff has paid the Stamp Duty or he is ready to pay the Stamp Duty on Ex.P61, presenting it for its registration process and to admit the execution of Ex.P61 before the jurisdictional Sub-Registrar. All other terms and conditions specified in Ex.P23 and Ex.P61 were required to be performed only after the registration of Ex.P61 and during the subsistence of the lease. The payment of monthly rent by the plaintiff to the defendant even after execution of 96 O.S.No.9403/2014 Ex.P61 cannot be considered as an acknowledgment of liability of the defendant to admit the execution of Ex.P61 before the jurisdictional Sub-Registrar. Therefore, the principles of law relied by the learned Counsel for the plaintiff in Lakshmi Pat Surana's case is not applicable to the present case on hand.
67. As stated above, the only part of obligation that was pending to perform under Ex.P23 was the payment of Stamp Duty on Ex.P61 and its registration by the plaintiff. All other terms and conditions specified in Ex.P23 and Ex.P61 were required to be performed only after the registration of Ex.P61 and during the subsistence of the lease. Unless Stamp Duty has been paid on Ex.P61 and it is registered before the jurisdictional Sub-Registrar admitting its execution by the plaintiff and the defendant, the performance of the other parts of the contract by the defendant as agreed in Ex.P23 and Ex.P61 does not arise. Therefore, there is no continuing breach of any terms of contract as agreed in Ex.P23 and Ex.P61 by the defendant as argued by the learned Counsel for the plaintiff. Therefore, 97 O.S.No.9403/2014 the principles of law relied by the learned Counsel for the plaintiff in the case between Samruddhi Co-Operative Housing Society Ltd. V/s Mumbai Mahalaxmi Construction Pvt. Ltd. [(2022) 4 SCC 103] is not applicable to the present case on hand.
68. To the present case on hand, the first part of Article 54 of the Limitation Act is applicable and the period of limitation begins to run from 30.06.1999 i.e., the time specified in Ex.P23 and Ex.P27. Therefore, the cause of action arose on 30.06.1999 when the specific date to perform for execution and registration of Ex.P61 was fixed in Ex.P23 and Ex.P27. From the said date, the suit of the plaintiff is not within 3 years. Therefore, the suit of the plaintiff is barred by limitation. Hence, I answer Additional Issue No.1 dated 27.09.2024 in the Affirmative.
69. ISSUE No.3 :- The plaintiff has filed this suit against the defendant for Specific Performance of Contract i.e., the Agreement to Lease dated 25.03.1998 and the Lease Deed dated 01.07.1999 and Permanent Injunction restraining the 98 O.S.No.9403/2014 defendant, its agents, assignees, nominees or any person acting on its behalf or claiming through it from breaching or violating any of the terms and conditions of the Judgment and Decree dated 11.10.1996 passed in Misc. No.11/1996 by the XVII Additional City Civil Judge and Sessions Judge, Bengaluru, Agreement to Lease dated 25.03.1998 and the Leased Deed dated 01.07.1999. For the reasons stated in Issues No.1 and 2, the plaintiff has not proved that he is ready and willing to perform his part of contract as per the terms and conditions set out in the lease agreement dated 25.03.1998 and lease deed dated 01.07.1999 and the defendant has proved that the plaintiff was never diligent in discharging his obligations as per the lease agreement. For the reasons stated in Additional Issue No.1 framed on 27.09.2024, the suit of the plaintiff is barred by limitation. Therefore, the plaintiff is not entitled for the reliefs as prayed in this suit. Hence, I answer Issue No.3 in the Negative.
70. ISSUE No.4 :- In view of the findings on Issue No.3, the suit of the plaintiff is liable to be dismissed with costs. 99
O.S.No.9403/2014 For the reasons stated in Additional Issue No.1 dated 10.09.2015, the plaintiff is liable to pay deficit Court fee of Rs.2,12,312/- (Rupees Two Lakhs Twelve Thousand Three Hundred and Twelve only) to the Court. Hence, I proceed to pass the following;
ORDERS The suit of the plaintiff is hereby dismissed with costs.
The plaintiff is directed to pay deficit Court Fee of Rs.2,12,312/- (Rupees Two Lakhs Twelve Thousand Three Hundred and Twelve only) within 3 months from the date of this Order failing which, the same shall be recovered as arrears of land revenue from the property of the plaintiff.
Draw the decree accordingly.
I.A. filed by the plaintiff under Section 151 of the Code of Civil Procedure seeking an order of this Court to permit the plaintiff to deposit the rent in respect of the suit schedule property was pending for consideration. In view of the dismissal of this suit, the said I.A. does not survive 100 O.S.No.9403/2014 for consideration. Accordingly, the said I.A. is disposed of.
(Typed by the Stenographer in the Court Computer on my direct dictation, printout taken, corrected and then pronounced by me in the open court today on this the 5th day of February 2025).
(VEDAMOORTHY.B.S) XXXI Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for Plaintiff :-
PW1 : Kurien Thomas.
List of documents exhibited for Plaintiff :-
Ex.P1 : Certified copy of Orders,
Ex.P2 : Memorandum of Understanding,
Ex.P3 : Partnership Deed,
Ex.P4 : Re-Constituted Partnership Deed,
Ex.P5 : Acknowledgment of Registration of
Firm,
Ex.P6 : Death Certificate,
Ex.P7 : Letter dated 04.09.1999,
Ex.P8 : Letter dated 21.02.2006,
Ex.P9 : Letter dated 02.04.2013,
Ex.P10 : Rent Receipts,
Ex.P11 : Letters,
Ex.P12 : Postal Acknowledgments,
Ex.P13 : TDS Certificates,
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Ex.P14 : Certified copy of the Orders,
Ex.P15 : Certified copy of Order,
Ex.P16 : Letter dated 18.06.1968,
Ex.P17 : Agreement of Lease,
Ex.P18 : Certified copy of the Orders,
Ex.P19 : Office copy of the Legal Notice,
Ex.P20 : Statutory Notice,
Ex.P21 : Certified copy of Order Sheet,
Ex.P22 : Certificate under Section 269-UL(1) of
Income Tax Act,
Ex.P23 : Agreement to Lease,
Ex.P24 : Partnership Deed,
Ex.P25 : Agreement of Lease,
Ex.P26 & 27 : Supplemental Agreements,
Ex.P28 to 60 : Invoices,
Ex.P61 : Deed of Lease,
Ex.P62 : General Power of Attorney,
Ex.P63 & 64 : Re-Constituted Partnership Deed,
Ex.P65 : Memorandum of Acknowledging
Receipt of Documents,
Ex.P66 : Statement of Account,
Ex.P67 : Details of Lease Rent Paid,
Ex.P68 : Certificate of Registration of Trade
Mark,
Ex.P69 : Certificate,
Ex.P70 & 71 : Sketch,
Ex.P73 : Proforma,
Ex.P74 to 76 : Certified copies of the Lease Deeds, 102 O.S.No.9403/2014 Ex.P77 : Xerox copy of Affidavit, Ex.P78 : Printout of Case Status, Ex.P79 : Affidavit cum Certificate, Ex.P80 : Certified copy of Order Sheet, Ex.P81 : Certified copy of the Orders, Ex.P82 : Certificate of Registration of Trade Mark, Ex.P83 : Trade License Certificate.
List of witnesses examined for the Defendant :-
DW1 : M.Fuaad Musvee.
List of documents exhibited for the Defendant :-
Ex.D1 to 18 : Photographs,
Ex.D19 : Compact Disc,
Ex.D20 : Certificate,
Ex.D21 : Statutory Notice,
Ex.D22 to 24 : Postal Receipts,
Ex.D25 to 29 : Postal Acknowledgments,
Ex.D30 : Minutes of Meeting,
Ex.D31 : Copy of Letter dated 14.08.2014,
Ex.D32 : Certificate,
Ex.D32(a) & (b) : Statements,
Ex.D33 : Copy of Memorandum of
Understanding,
Ex.D34 : Copy of Certificate of Registration,
Ex.D35 : GST Document,
Ex.D36 & 37 : Copies of Public Notices,
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Ex.D38 : Form No.26AS,
Ex.D39 : Certificate,
Ex.D40 : Certified copy of Decree,
Ex.D41 : Tax Paid Receipt,
Ex.D42 : Notice,
Ex.D43 : Certificate,
Ex.D44 : Certified copy of Written Statement, Ex.D45 : Certified copy of I.A. (VEDAMOORTHY.B.S) XXXI Addl. City Civil & Sessions Judge, Bengaluru.
Digitally signed by VEDAMOORTHY VEDAMOORTHY B S BS Date:
2025.02.05 17:02:59 +0530