Karnataka High Court
Sri J M Jayakumar vs Sri B S Chandrashekhara Murthy on 24 April, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
DATED THIS THE 24TH DAY OF APRIL 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
R.F.A.NO. 1006/2012
BETWEEN:
1. SRI J M JAYAKUMAR
S/O LATE JAGALUR MAHALINGAPPA
AGED ABOUT 64 YEARS
MAHAVIRNAGAR, B D ROAD
CHITRADURGA-577501
2. SRI KEVALCHAND
S/O SIRDARLAL
AGED ABOUT 60 YEARS
MAHAVEER NAGAR, B D ROAD,
CHITRADURGA-577 501.
..APPELLANTS
(BY SRI PARAS JAIN, ADV.,)
AND:
SRI B S CHANDRASHEKHARA MURTHY
S/O LATE B. SADASHIVAPPA
AGED ABOUT 54 YEARS
R/AT "SHIVAKRUPA", 3RD CROSS
(EAST) J C R EXTN, CHITRADURGA-577 501.
... RESPONDENT
(BY SRI ASHOK R KALYANASHETTY, ADV., FOR
CAVEATOR RESPONDENT)
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THIS RFA IS FILED U/SEC.96, OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED:17.04.2012
PASSED IN O.S.19/2008 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE, AND ADDL. MACT,
CHITRADURGA, DISMISSING THE SUIT FOR SPECIFIC
PERFORMANCE.
THIS RFA COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Plaintiffs are in appeal assailing the judgment and decree passed by the II Addl. City Civil Judge, Chitradurga, dated 17.04.2012 in O.S.No.19/2008, whereunder plaintiffs suit for specific performance of contract has been dismissed and it has been held that plaintiffs are entitled for recovery of sum of ` 2,50,000/- with interest at the rate of 18% p.a. from 13.02.2006 till realisation.
2. Plaintiffs filed suit for specific performance of contract and for a direction to the defendant to execute absolute sale deed in respect of suit schedule property by receiving balance consideration of ` 12,50,000/- and for possession of suit schedule property, contending interalia that on 19.04.2006 defendant had entered into an 3 agreement with plaintiffs for selling converted land bearing Survey No.88/1A/2 of Kelagote village, Chitradurga Taluk measuring 2 acres (hereinafter referred to as 'suit schedule property' for brevity) for a total sale consideration of ` 15,00,000/-. It was contended that plaintiffs had paid an advance amount of ` 50,000/- on date judgment and subsequently ` 1,00,000/- was paid on 23.04.2006 and another sum of ` 1,00,000/- on 13.06.2006 and thus in all a sum of `2,50,000/- was paid towards agreed sale consideration of ` 15,00,000/-. It was contended that plaintiffs were always ready and willing to perform their part of contract and paying the balance sale consideration of `12,50,000/- and defendant was avoiding and evading to receive the balance sale consideration execute sale deed and postponing sale transaction on one pretext or the other. Plaintiffs got a legal notice issued on account of defendant refusing to complete sale transaction, suit in question was filed.
3. Defendant appeared on service of suit summons and filed written statement denying the averments made in 4 plaint. It was contended by defendant that he had never agreed to sell the suit schedule property and on account of developments made in the land by him plaintiffs came forward to purchase suit schedule property for ` 56,00,000/-. However, deal was not finalized. There was no agreement entered into between the parties and sum of `2,50,000/- was only paid towards steps taken to negotiate and finalise the deal and on account of same not being finalized, defendant offered the money to plaintiff and same was not accepted by plaintiffs. All other averments made in the plaint came to be denied. During the pendency of suit an application was filed under Order 7 Rule 11 CPC on the ground that suit is not maintainable in view of Section 9 of the Specific Relief Act, 1963 Trial Court by order dated 24.01.2009 allowed the said application and rejected the plaint.
4. Being aggrieved by the same, plaintiffs filed an appeal in RFA No.449/2009 before this Court and by order dated 26.02.2010 allowed the appeal and judgment and decree passed by the trial court came to be set aside and 5 matter was remitted back to Trial Court for adjudication on merits by keeping open all the contentions of parties. Thereafter parties have tendered their evidence before Trial Court, both oral and documentary and on appreciation of same, trial court dismissed the suit with a direction to the defendant to repay a sum of ` 2,50,000/- with interest at the rate of 18% p.a. from 13.02.2006 till payment.
5. I have heard the arguments of Sriyuth Paras Jain for plaintiff and Sri.Ashok Kalyanashetty for defendant. Perused the judgment & decree passed by trial court as also records secured from trial court.
6. Sri Paras Jain, learned counsel appearing for the plaintiffs/appellants would contend that judgment and decree passed by Trial Court is without appreciation of evidence in proper perspective and contends that admittedly receipt dated 19.04.2006, which came to be marked as Exhibit P-3 as also two endorsements made thereunder Exhibits P-3(a) and P-3(b), which would clearly 6 indicate that defendant had agreed to sell the suit schedule property in favour of plaintiffs. He would contend that undisputedly defendant is the owner of suit schedule property and defendant being an Advocate knows or well conversant with the contents of Exhibit P-3. He would also contend that defendant does not dispute receipt of amounts reflected in Exhibit P-3 and in view of this categorical evidence tendered by plaintiffs by examining P.W.2 and P.W.3, plaintiffs have been able to demonstrate before the trial court that there was a contract of sale between parties on 19.04.2006, under which defendant had agreed to sell suit schedule property in favour of plaintiffs for a total consideration of `15,00,000/-. He would draw the attention of Court to the evidence of P.W.2 and P.W.3 to contend that they have categorically stated that sale consideration agreed to between the parties for sale of suit schedule property by defendant to plaintiffs was ` 15,00,000/-. He would contend that defendant in order to improve upon his defence has produced Exhibit D-1, which is a fabricated document particularly page 1 of the document and 7 contends that even otherwise said document would clearly indicate that it was a transaction for sale of suit schedule property between the parties and assuming that plea of defendant is to be accepted for a moment that there is a change of page from Exhibit P-2 or D-1 as contended by him, even then said document namely page 2 of Exhibit P-2 or D-1 would clearly indicate that there was a transaction between the parties with regard to sale of suit schedule property and this aspect has not been considered by the trial court in proper perspetive. He would contend that plaintiffs have produced cogent evidence to prove and substantiate that agreement of sale in question between parties was oral and same is supported by advance receipt issued by defendant and non consideration of oral evidence of two independent witnesses present at the time of oral agreement between plaintiff and defendant and in whose presence plaintiffs had paid the monies in favour of defendant, has been erroneously disbelieved by Trial Court and as such he seeks for setting aside the judgment and decree passed by Trial Court.
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6.1. He would further elaborate his submission by contending that trial court failed to consider the fact that defendant does not dispute the execution of Exhibits P-3 and endorsements made as P-3(a) and P-3(b) for having received further advance amount from plaintiff which would clearly indicate that he had received sale consideration partly for sale of suit schedule property and the evidence read in its entirety would clearly support the claim of parties and when there was no other transaction between the parties and when defendant has not either pleaded or proved about there being any other transaction between the parties, Trial Court ought to have accepted the plea put forward by plaintiffs and decreed the suit as prayed for.
6.2. He would draw the attention of the Court to Exhibit P-3 together with evidence of D.W.1 to contend that D.W.1 has admitted that writing found in Exhibit P-3 was made by him which would clearly indicate that defendants had agreed to sell suit schedule property in favour of plaintiffs and had thus received an advance amount of 9 ` 2,50,000/-. He would also contend that D.W.1 has admitted that other purchasers were approaching defendant to sell the suit schedule property and as such, plaintiffs had paid a sum of ` 1,00,000/-, so that defendant may not sell the property to others, which would indicate that defendant intended to sell the suit schedule property in favour of plaintiffs only.
6.3. He would also contend that in reply notice defendant had agreed that he intended to sell suit schedule property in favour of plaintiffs and this has not been considered by Trial Court in proper perspective. He would also draw the attention of Court to Exhibit D-1 whereunder defendant is said to have accepted that he had agreed to sell suit schedule property and plaintiffs had agreed to purchase the same. He would further contend that Trial Court ought not to have disbelieved the evidence of plaintiffs with regard to permission granted by defendant to enter upon the suit land, remove debris, level the land and marking of same for formation of sites, since oral evidence of plaintiffs have remained unimpeached. He would also 10 draw the attention of Court to the evidence of defendant to contend that defendant had agreed to sell suit the schedule property and had received an advance amount towards sale consideration, acknowledged the same in writing, admitted the execution of Exhibit P-3. He would contend that when execution of Exhibit P-3 is not being disputed and when contents of Exhibit P-3 would clearly indicate that recipient has received amount as advance agreeing to sell suit schedule property trail court ought t have held that contract between parties was concluded. He would further contend that if there was no agreement between the parties to sell suit schedule property or an understanding between them then there was no occasion for the defendant to receive further advance amounts i.e., for second and third time and this evidence itself was sufficient to arrive at a conclusion that there was a contract between the parties to sell or purchase suit schedule property.
6.4. He would further contend that relief sought for ought to have been granted by the Trial Court and 11 discretion vested in it ought to have been exercised in favour of plaintiffs particularly under Sub-Section (3) and sub Section 4, of Section 20 of Specific Relief Act since plaintiffs had done substantial act and had suffered loss in consequence of such a contract. He would contend that merely because defendant pleads that contracts should not be enforced, decree in favour of plaintiffs could not have been refused.
6.5. He would also submit that defendant had come to Court with unclean hands namely he had retained amount paid by plaintiffs as advance amount, without any justifiable cause and if really, there was no contract between the parties as contended by defendant, he ought to have returned or refunded the amount at the first available opportunity and contends that it is a fraud committed by defendant on the plaintiff as well as on Court. He would also submit that defendant having entered the witness box and on being administered the oath ought to have spoken truth and his evidence would establish that he has even gone to the extent of denying the very existence of contract 12 between the parties and he has also denied there being an agreement of sale between the parties and as such, he contends that defendant is not entitled to any protection at the hands of Court and relief should be denied to defendant. He would also contend that in a suit for specific performance it would be ordinarily decreed until and unless defendants makes out a case under Clause (a) to (c) of Sub- Section (2) of Section 20 of Specific Relief Act, and mere inadequacy of consideration or mere escalation in the price of the land would not be a ground to reject the claim for specific performance. He would also reiterate his submission by contending that plaintiffs have always been ready and willing to perform their part of the contract and trial court has erroneously not considered these aspects and as such, it has resulted in great prejudice to plaintiffs. Hence, he prays for allowing the appeal and decreeing the suit as prayed for.
6.6. In support of his submission he has relied upon following judgments:
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1. AIR 1994 SC 853: S.P. CHENGALVARAYA NAIDU (DEAD) BY LRS. VS. JANNATH (DEAD) BY LRS. AND OTHERS.
2. 2010 (2) SCC 114: DALIP SINGH VS. STATE OF UTTAR PRADESH AND OTHERS
3. 1979 (4) SCC 393: PRAKASH CHANDRA VS.
ANGADLAL AND OTHERS
4. AIR 2007 SCW 1383: P.S. RANAKRISHNA REDDY VS. M.K.BHAGYALAKSHMI & ANR.
5. 2004 (6) SCC 649: P.D'SOUZA VS.
SHONDRILO NAIDU
6. 2002 (10) SCC 82: T. MOHAN VS.
KANNAMMAL AND ANOTHER
7. Per contra, Sri Ashok R. Kalyanashetty, learned counsel appearing for defendant would support the judgment and decree of the trial court insofar as refusing the relief of specific performance in favour of plaintiffs and would also contend that trial court was not justified in directing the defendant to repay advance amount of ` 14 2,50,000/- that too with interest at the rate of 18% p.a. from the date of receipt till date of payment, when admittedly defendant had notified plaintiffs to take back the amounts and it is the plaintiffs who had refused to receive the same and when defendant had made honest attempts to return the said amount to plaintiffs. Defendant at this juncture cannot be made to repay said amount with interest at the rate of 18% p.a and at the most trial court could have directed repayment of the amounts received by defendant with interest @ 6% p.a. and it would have met the ends of justice.
7.1 He would also contend that agreement is a bundle of facts and submits that a perusal of Exhibit P-3 itself would clearly indicate that consideration amount for sale of suit land was not finalized even as on the date of executing Exhibit P-3 and as such, there was no concluded contract between parties. He submits that even plaintiffs also does not dispute the fact that there was any concluded contract between the parties, inasmuch as Exhibit P-1 itself would not indicate that it is a concluded contract and the 15 witnesses examined on behalf of plaintiffs P.W.2 and P.W.3 also did not state about any concluded contract having taken place between parties and as such decreeing the suit does not arise. He draws the attention of the Court to Exhibit P-2 which would indicate that there was no consideration amount agreed upon for sale of suit land.
7.2 He would also submit that Exhibit P-3 cannot be relied upon for any other purposes except treating it as a receipt in view of undertaking given by plaintiffs themselves before this Court in W.P.No.35332/2010 as per Exhibit D- 23, which order came to be passed by this Court while adjudicating the claim of plaintiffs seeking for production of said receipt for being marked as an agreement which was objected to by the defendant on the ground that it is insufficiently stamped, which came to be sustained by Trial Court and when assailed before this Court it was agreed to by the plaintiffs themselves that it would be marked only as a receipt and not as an agreement and as such, he contends that it would not be permissible for plaintiffs now 16 to contend that Exhibit P-3 is to be treated as an agreement entered into between the parties or to draw sustenance from the said document to contend that there was an agreement of sale of suit land between the parties by referring to a recital found in Exhibit P-3.
7.3 He would also submit that nowhere in the plaint, plaintiffs stated whether the agreement between parties was oral or written agreement and it is a plea now put forward in this appeal without any pleading. He draws the attention of Court to paragraph 3 of the plaint to be compared along with paragraph 2 of Exhibit P-1, to contend that it would clearly indicate that there has been inconsistency namely where plaintiffs state that plaintiffs had insisted for agreement on a stamp paper in the legal notice and whereas in the plaint it has been stated that plaintiffs accepted the plea of defendant about there being no need for a formal agreement on a stamp paper of ` 200/- since defendant was an advocate and his writing on receipt is as good as an agreement, to contend that inconsistency is glaring. Hence, he submits that plaintiffs 17 themselves are doubtful about any contract between the parties to the suit being in existence. He would also draw the attention of the Court to the evidence of P.W.1 namely cross-examination, whereunder plaintiffs have admitted that in Exhibit P-3 there is no mention with regard to the sale consideration which would indicate that there was no concluded contract between the parties. He would also submit that plaintiffs themselves have not stated about consideration amount being reflected in the said receipt Exhibit P-3 which would indicate that parties were not ad- idem with regard to sale consideration for sale of suit land.
7.4. Sri Ashok R. Kalyanashetty, learned counsel appearing for defendant would contend that Sub-Section (3) of Section 20 of the Specific Relief Act, 1963 is not attracted to the facts and circumstances of the case, since plaintiffs have utterly failed to establish the substantial acts done by them or having suffered loss as a consequence of contract entered into between them and defendant. Elaborating his submission in this regard, he contends that plea put forward by plaintiff in paragraph 7 which is to the effect 18 that debris in suit schedule property was cleared by them, has not been proved. But on the other hand PW-5 himself admit in his cross-examination that possession of suit schedule property was with defendant and even otherwise, averments found in paragraph 9 of the plaint is contrary to the averments found in paragraph 7 and there being inconsistency in plaintiffs stand itself with regard to possession of suit land being with plaintiff and there being no material placed by plaintiffs for having carried out substantial acts or having expended amount on suit land causing loss to plaintiffs, trial court has rightly not exercised its jurisdiction under Sub-Section (3) of Section 20 to decree the suit in favour of plaintiffs.
7.5. He would also contend that defendant has examined D.W.2 to establish that on account of there being no concluded contract money which was with defendant was sought to be refunded through said witness and another person by name Sri.Rudraiah.M.V. and when they went to the shop of second plaintiff to refund the amount 19 he refused to receive the same and immediately thereafter notice has been got issued by plaintiffs as per Exhibit P-1 i.e., on 19.12.2006 and thereafter suit has been filed in the year 2008 and defendant as expected of a prudent person filed an application seeking permission of trial court to deposit the amount on 27.08.2011, which would clearly indicate the bonafides of defendant to return the amount and as such, he contends that trial court was not justified in directing the defendant to pay the interest on the said amount of ` 2,50,000/- at the rate of 18% p.a. which is highly exorbitant.
7.6. He would draw the attention of the Court to evidence of P.W.2 and P.W.3 to contend that trial court has rightly not accepted the said evidence, since P.W.2 pleaded his lack of knowledge with regard to suit transaction and P.W.3 being related to first plaintiff, his evidence cannot be eschewed and rightly so trial court has not accepted the same and hence he prays for affirming the finding recorded by Trial Court.
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7.7. Insofar as contents of first page of Exhibit P-2 is concerned, he would submit that it has been inserted by plaintiffs subsequently and to establish that first page of Exhibit P-2 was not issued by the signatory to said notice namely through Sri Madhusudana - Advocate, he came to be examined on behalf of defendant as D.W.3, who categorically stated that first page of Ex.P2 was not issued by him and it is Exhibit D-1 which came to be issued by him on behalf of his client namely defendant herein. He draws the attention of Court to the evidence of P.W.1 namely cross-examination dated 07.02.2011, whereunder P.W.1 admits the receipt of Exhibit D-1 and contends this itself is sufficient to arrive at a conclusion that it is Exhibit D-1 which is the original reply notice issued to plaintiffs and not Exhibit P-2, which was produced before trial court by plaintiffs.
7.8 He would further contend that there being no concluded contract between the parties defendant has expended monies for developments of his land, formed a 21 layout and has sold sites and there being no equities in favour of plaintiffs and even according to admission of plaintiffs the transaction in question being speculative in nature, trial court has rightly refused to exercise the discretionary power to grant the relief of specific performance in favour of plaintiffs and it does not call for any interference. He would also elaborate his submission by contending that defendant has already sold portions of suit property namely sites and same being fully developed and plaintiffs having failed to enter into a concluded contract with defendant, trial court has rightly held that there is no concluded contract between the parties and as such, it has refused to exercise the discretionary power vested under Section 20 of the Specific Relief Act, 1963 to decree the suit. Hence, he prays for affirming the findings of Trial Court insofar as refusal of decree for specific performance and prays for modification of judgment and decree of Trial Court insofar as directing the defendant to refund the advance amount received with interest @ 18% 22 p.a. and for reducing the interest to 6% p.a. instead of 18% p.a. 7.9. He has also brought to the notice of Court that P.W.1 has admitted that all details regarding suit transaction was negotiated by 1st plaintiff and PW1 has admitted that he will not be examining first plaintiff as per memo filed on 12.10.2011 which would clearly indicate that it was the first plaintiff who was conversant with the facts of present case as also alleged transaction between the parties and when plaintiffs themselves have failed to examine the said witness, evidence of P.W.1 cannot be eschewed as it would be a hear say evidence and as such, he prays for dismissal of the appeal filed by plaintiffs.
8. Trial Court on the basis of pleadings of the parties formulated following issues for its adjudication:
1. Whether the plaintiffs prove that, defendant has entered into sale agreement dated 19.04.2006 for a sum of ` 15,00,000/- lakhs 23 and received part consideration of `2,50,000/-
periodically?
2. Whether the plaintiffs prove that, they are always ready and willing to perform their part of contract?
3. Whether there is no cause of action for the suit?
4. Whether the valuation is not proper?
5. Whether the plaintiffs are entitled for the relief claimed?
6. What decree or order?
9. Plaintiff got himself examined as P.W.1 and also examined two witnesses as P.W.2 and P.W.3 and in all produced 11 documents and got them marked as Exhibits P-1 to P-11. Defendant in order to establish the defense set up by him in plaint, got himself examined as D.W.1 and also examined four witnesses as D.W.2 to D.W.5 and in all produced 23 documents by getting them marked as 24 Exhibits D-1 to D-23. After considering the pleadings and scrutinizing the evidence and on appreciation of same, trial court by its judgment and decree dated 17.04.2012 dismissed the suit for specific performance and directed the defendant to refund the amount of ` 2,50,000/- with interest at 18% p.a. It is this judgment and decree which is assailed in this appeal.
10. Having heard the learned Advocates appearing for the parties and on perusal of judgment and decree passed by Trial Court and also records secured from trial court, I am of the considered view that following points would arise for my consideration:
1. Whether judgment and decree passed by Trial Court in O.S.No.19/2008 dismissing the suit of plaintiffs for specific performance of the contract, suffers from any infirmities either on facts or in law calling for interference by this Court?25
2. Whether there has been any improper appreciation of evidence or non-appreciation of evidence or non-consideration for material evidence available on record and thereby judgment and decree passed by Trial Court is vitiated?
3. Whether Trial Court was justified in directing defendant to repay the amount of ` 2,50,000/-
with interest at the rate of 18% p.a. from 13.02.2006 till realization? if not, to what interest plaintiffs would be entitled to or to what reliefs the parties are entitled to?
FACTUAL MATRIX:
11. In the suit in question plaintiffs contended that on 19.04.2006 they have entered into an agreement with defendant for purchasing suit schedule property for a total consideration of ` 15,00,000/- and under the said agreement plaintiffs had paid an advance amount of ` 50,000/- to defendant which was duly acknowledged under 26 receipt dated 19.04.2006. It was also contended that subsequently on 23.04.2006 and 13.06.2006 a sum of ` 1,00,000/- each was paid as sale consideration and defendant has acknowledged its receipt in the same receipt dated 19.04.2006. Defendant has not disputed the fact of executing the receipt dated 19.04.2006 as also the receipt of further advance amount i.e., a sum of ` 50,000/- and `1,00,000/- each on dates mentioned in the said receipt dated 19.04.2006 i.e., on 23.04.2006 and 13.06.2006.
These facts are not in dispute between the parties. Plaintiffs contended on the one hand at the time of advance being paid to defendant two witnesses namely Maheshwarppa and Jayadevappa were present and they have witnessed the payment of advance amount as also the payment of subsequent amounts on 23.04.2006 and 13.06.2006. Receipt dated 19.04.2006 came to be marked as Exhibit P-
3. Endorsement made on 23.04.2006 and 13.06.2006 came to be marked as Exhibit P-3(a) and P-3(b).
27RE. POINT NOS. 1 AND 2:
12. Prior to institution of suit in question plaintiffs got issued a legal notice to defendant on 19.12.2006, which came to be produced and marked as Exhibit P-1. At paragraph 3 of said legal notice it has been stated that plaintiffs had initiated for agreement being executed on a stamp paper but defendant informed them that he would execute a registered sale deed. Said plea in Ex.P1 reads as under:
"3. My clients and yourself were in cordial terms, though my clients insisted for Agreement on stamped paper you told my clients that you are going to execute Registered Sale Deed in respect of the schedule land on any earlier date."
However, in the plaint it has been specifically contended that defendant had entered into an agreement with the plaintiffs. Said plea raised by the plaintiffs in the plaint reads to the following effect:
"3. The plaintiffs have entered into agreement with the defendant for purchase of converted land bearing Survey No.88/1A/2 of Kelagote Village, Chitradurga Taluk, admeasuring to 2 acres, more fully described in the schedule hereunder, on 28 19/4/2006 and under said agreement the plaintiffs paid an advance of Rs.50,000 (rupees Fifty thousand only) to the defendant and the defendant has acknowledged the receipt of the same. The defendant being an Advocate, stated that there is no need for a formal agreement on stamp paper of Rs.200/- and his writing is as good as an agreement. Further the plaintiffs and the defendant know each other and they have trust in one another. Under such circumstances the plaintiffs with out insisting for agreement for sale on stamp paper of Rs.200/-, accepted the contention of the defendant and accepted his writing as an agreement."
13. At the first instance it requires to be noticed that the plea of plaintiffs is inconsistent, namely plea in the plaint is not in consonance with plea put forward in legal notice Ex.P-1. In the evidence of P.W.1 no explanation is forthcoming with regard to this inconsistency. The affidavit filed in lieu of examination-in-chief is silent on this aspect.
14. Plaintiffs have contended that there was an agreement entered into between the parties as noted hereinabove. Undisputedly, other than Exhibit P-3-receipt, there is no other document which has come into existence in respect of suit schedule property. In view of both the learned Advocates having raised the contentions with 29 regard to Exhibit P-3, it would be appropriate to note the contents of Exhibit P-3 itself and it reads as under:
Ex.P3 " Receipt Received fifty thousand rupees from J.M.Jayakumar S. Keval Chand towards part purchase amount in respect of purchasing alienated land of 2 acres in Sy. No. 88/1A/2 of Kelagote Village, Chitradurga (Jr).
Chitradurga (Sd/-) Ex.P3(a)
Date 19-4-2006
Received one lakh rupees on 23-4-2006
towards above transaction.
Chitradurga (Sd/-) Ex.P3(b)
Date 23-4-2006
Received one lakh rupees on 13.06.2006
towards above transaction.
Chitradurga
Date 13.6.2006"
15. A perusal of said receipt would indicate that defendant has acknowledged on 19/4/2006 receipt of ` 30 50,000/- from plaintiffs towards "part purchase amount in respect of purchasing alienated land of 2 acres in survey No.88/1A/2". Signature of the defendant has been marked as Exhibit P-3(a). Subsequently an endorsement is said to have been made by the defendant on 23.04.2006 for having received ` 1,00,000/- from 2nd plaintiff - P.W.1. Said endorsement has been marked as exhibit P-3(b). Again on 13.06.2006 further endorsement is made by the defendant for having received a further sum of ` 1,00,000/- as per endorsement marked as Exhibit P-3(c). As noted hereinabove there is no dispute with regard to execution of receipt -Ex-P-3 by the defendant. It is the specific case of plaintiffs, that defendant had agreed to sell the land bearing survey No.88/1A/2 in favour of plaintiffs for a sum of `15,00,000/-. Receipt - Exhibit P-3 or endorsements made subsequently thereto would not indicate as to whether parties were at ad-idem with regard to total sale consideration amount in other words it does not indicate that parties had entered into a contract, which can be construed as concluded contract. Hence, plea put forward 31 by the parties in this regard has to be examined alongwith oral evidence available on record. It is an oath against oath. On the one hand plaintiffs have contended that sale consideration agreed upon between the parties for sale of suit property was `15,00,000/-, Whereas defendant contends that it was `56,00,000/-. In order to prove that there was a concluded contract between the parties for sale of suit schedule property by defendant in favour of plaintiffs for consideration of ` 15,00,000/-, two witnesses have been examined by plaintiffs namely P.W.2 and P.W.3 i.e., Sriyuths Maheshwarappa and P.S.Jayadevappa. Said evidence has been discarded by Trial Court in its entirety.
The reason assigned by trial court to discard evidence of P.W.2, namely Maheshwarappa is that he is an LIC Development Officer and under him son of second plaintiff has been working as an LIC agent. This fact is not in serious dispute. P.W.1 himself admits in his cross- examination that his son Aravind Kumar is an LIC agent. In so far as evidence of Sri. Maheshwarappa, P.W.2 is concerned, Trial Court has disbelieved his statement on the 32 ground that he is closely related to first plaintiff. Whether trial court was justified in not accepting the version of plaintiffs that there was no concluded contract between parties and whether evidence tendered by PW2 and PW3 which came to be discarded by the Trial Court is to be accepted or not, is being evaluated by this Court by reappreciation of said evidence in following paragraphs.
16. It is the specific contention of the plaintiffs that the contract between the parties is a concluded contract. The offer given by the plaintiffs was accepted by the defendant and as such, the contract in question is a concluded contract. As already noticed hereinabove, in the legal notice issued prior to the institution of the suit as per Ex.P1, it has been specifically contended that plaintiffs insisted for execution of an agreement on a stamp paper and defendant informed that a regular sale deed could be executed at an early date and as such, there was no agreement of sale entered into between the parties. Whereas in the plaint, it has been contended that defendant being an advocate, had informed the plaintiffs 33 that there was no need for a formal agreement required to be entered on stamp paper of ` 200/- and his writing is good as an agreement. Thus, the inconsistency between the contentions raised in the legal notice to that of the averment made in the plaint is writ large on the face of it. There is no explanation whatsoever offered by the plaintiffs with regard to this inconsistency. However, it is also to be noticed that defendant does not deny the fact that he has not executed the receipt dated 19.04.06 as per Ex.P3 after having received a sum of ` 50,000/- from the plaintiffs which was towards sale of the land of 2 acres in Sy.No.88/1A/2 namely the suit schedule property. Defendant also does not dispute the fact that subsequently on 23.04.06 and 13.06.06, he received a sum of ` 1 lakh each as per Ex.P3(b) and Ex.P3(c) towards sale consideration. It is in this background, it requires to be examined as to whether there was a concluded contract between the parties. Mere offer would not suffice for a contract to hold the same to be a concluded contract. Both parties are required to be ad-idem. The offer and 34 acceptance should be specific and absolute between the parties. It is at this juncture, Section 7 of the Indian Contract Act requires to be noticed, which reads as under:-
7.Acceptance must be absolute.- In order to convert a proposal into a promise the acceptance must -
(1) be absolute and unqualified;
(2) be expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted, and the acceptance is not made in such manner, the proposer may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner, and not otherwise, but, if he fails to do so, he accepts the acceptance.35
17. For a proposal to get converted itself into a promise, the acceptance must be absolute and unqualified.
In other words, the parties should be ad-idem insofar as the proposal as well as its acceptance. In the instant case, on the one hand, plaintiffs claim that sale consideration agreed to was ` 15 lakhs for sale of the suit schedule property. Defendant contends that consideration amount was not agreed upon at the time of execution of Ex.P3 and it was specifically made known to the plaintiffs that the sale consideration would be ` 2 lakhs per site which consists of 28 sites and in all, consideration would be ` 56 lakhs. Except, the self serving testimony of the respective parties, there is no documentary evidence available on record in this regard. Thus, it is an oath against oath as already observed hereinabove. It is in this background, oral evidence tendered by the parties acquires significance and same requires to be re-appreciated by this Court and said exercise is being carried out herein below;
18. PW-1 contended at the first instance that the entire sale transaction took place between the plaintiffs and 36 the defendant. He admits that it was the 1st plaintiff Sri.J.M.Jayakumar who was handling the matter and he is aware of the factual matters. Neither in the notice Ex.P1 nor in the plaint, said fact was pleaded by the plaintiffs. However, only during the cross-examination of PW.5, it has been so stated which would be dealt by me at a later stage. In order to substantiate that there was a concluded contract between the parties namely, sale consideration was agreed upon to be as ` 15 lakhs for sale of suit schedule property, plaintiffs contended in paragraph-3 of the plaint that at the time of the said agreement entered into, Sri.Maheshwarappa and Sri.P.S.Jayadevappa were present. It is also stated at the time of execution of Ex.P3 these two persons were present. These two persons have been examined as PW-2 and PW-3. Their evidence being crucial and having a direct bearing on the plaintiffs claim same is analysed herein below.
19. PW-2 at the time of his examination-in-chief has stated that he has retired from Life Insurance Corporation of India as a development officer. It is not in dispute that 37 2nd plaintiff's son is an LIC agent and the development officer who deals with the said LIC agent, namely the son of PW-1 is none other than this Maheshwarappa PW-2. In his cross-examination dated 22.09.11, he has admitted that son of PW2 is working with him as LIC agent. His admission is to the following effect:-
¸ÀĪÀiÁgÀÄ 15 CxÀªÁ 16 ªÀµÀðUÀ½AzÀ 2£Éà ªÁ¢AiÀÄ ªÀÄUÀ CgÀ«AzÀPÀĪÀiÁgï £À£Àß §½ J¯ïL¹ JeÉAmï DV PÉ®¸À ªÀiÁqÀÄwÛzÁÝ£É.
20. Ex.P3 which is a receipt relied upon by the plaintiffs to contend that there was an agreement between the parties namely the plaintiffs and the defendant for sale/purchase of the suit schedule property is written on a letter head of Sri.Aravind Kumar who is an LIC agent said letter head is inscribed with LIC name and logo. It does not contain the signatures of either PW-2 or PW-3. If really PW-2 and PW-3 were present on the date of execution of Ex.P3, nothing prevented the plaintiffs to obtain their signatures as witnessess atleast. Same is not forthcoming. No explanation is offered for not obtaining their signatures. In his examination-in-chief, PW2 states that defendant had 38 agreed to sell the site formed in the suit schedule property to the plaintiffs for a consideration of ` 15 lakhs and towards part sale consideration ` 50,000/- was received by the defendant in his presence. At the same time he admits in his cross-examination dated 22.09.11, that he is not aware of the time at which Ex.P3 was written. In fact, he states that he is not aware as to who is the scribe of Ex.P3. In his own words, his admission is to the following effect;-
¤¦-3 ¯Élgï ºÉqï AiÀiÁgÀ PÉÊAiÀÄ°èvÀÄÛ JA§ ¥Àæ±ÉßUÉ ¸ÁQëAiÀÄÄ £À£ÀUÉ UÉÆwÛ®è JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. In fact, PW-2 states that except the receipt of ` 50,000/- by the defendant from 2nd plaintiff, he is not aware of any other facts. In the very same cross-examination dt:22/9/2011, he admits that he did not participate in the discussion which took place between plaintiffs and the defendant. His admission in the cross-examination of even date is to the following effect:-
¤¦-3 gÀ°è d«ÄãÀÄ ªÀiÁgÁl ªÀiÁqÀĪÀ ¨Á§ÄÛ JAzÀÄ EgÀĪÀÅ¢®è JA§ ¥Àæ±ÉßUÉ ¸ÁQë £À£ÀUÉ UÉÆwÛ®è JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. ¤¦-3 £ÀÄß §gÉzÀ £ÀAvÀgÀ N¢ ºÉýzÀgÀ JA§ 39 ¥Àæ±ÉßUÉ ¸ÁQë £À£ÀUÉ UÉÆwÛ®è JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. ªÁ¢UÀ½UÀÄ ªÀÄvÀÄÛ ¥ÀæwªÁ¢UÀÄ D ¢£À K£ÀÄ ªÀiÁvÀÄPÀvÉ £Àr¬ÄvÀÄ JAzÀÄ D ªÀiÁvÀÄPÀvA É iÀÄ°è £Á£ÀÄ ¨sÁUÀªÀ»¹gÀĪÀÅ¢®è.
21. In fact, this witness is not at all aware as to what are the contents of the affidavit filed in his examination-in-chief. When he was specifically asked as to whether he is aware of the facts found in Exhibit P-3 finds a place in his affidavit filed in lieu of examination-in-chief or not, he states that he is not aware of it. His admission is to the following effect:-
£À£Àß eÉÆvÉVzÀÝ ¦.J¸ï.dAiÀÄ¥Àà JA§ÄªÀªÀgÀÄ F zÁR¯ÉUÉ ¸ÁQëAiÀiÁV ¸À» ªÀiÁrzÁÝgÉÆà E®èªÉÇà £À£ÀUÉ UÉÆwÛ®è. £À£Àß ¥ÀæªÀiÁt ¥ÀvÀæzÀ°è ºÉýgÀĪÀ CA±ÀUÀ¼ÀÄ ¤¦-3 gÀ°è §gÉ¢zÉAiÀÄ £ÉÆÃr ºÉý JA§ ¥Àà±ÉßUÉ ¸ÁQë £À£ÀUÉ UÉÆwÛ®è JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ.
Thus, the evidence of PW-2 requires to be examined with at most circumspection and his evidence is not susceptible for being accepted.
22. Now turning my attention to evidence of PW-3 i.e., P.S.Jayadevappa to find out as to whether he has 40 corroborated the evidence of PWs 1 and 2, it would emerge that at the time of defendant allegedly expressing his intention to sell the suit schedule property, he (defendant) did not inform PW-3 either the consideration amount he proposed to sell or any other person being present at the said point of time. In his cross-examination dated 12.10.11, he admits to the following effect:-
¥ÀæwªÁ¢AiÀÄÄ F ¸ÀévÀ£ Û ÀÄß ªÀiÁgÁl ªÀiÁqÀÄvÉÃÛ £ÉAzÀÄ £À£ÀUÉ ºÉýzÁUÀ ¨ÉÃgÉ AiÀiÁgÀÄ EgÀ°®è DzÀgÉ JµÀÄÖ ¨É¯ÉUÉ ªÀiÁgÁl ªÀiÁqÀÄvÉÛãÉAzÀÄ ºÉýgÀ°®è.
23. He had admitted that defendant had not informed the sale price or sale consideration for sale of suit property. In his examination-in-chief, said witness states that defendant had expressed to sell 28 sites formed in 2 acres of land. He does not state that 2 acres of land was agreed to be sold by the defendant to the plaintiffs as an agricultural or alienated land. It is the specific contention of PW-3 that what was agreed to be sold by the defendant to the plaintiffs was 28 sites formed in 2 acres of land in Sy.No.88/1A/2 of Kelagote village, Chitradurga taluk.
Evidence of PW-3 indicates that discussion centred around 41 sale of the said 28 sites took place in the presence of both the plaintiffs as well as PW-2 i.e., Maheshwarappa & himself. He states at the time of execution of Ex.P3 by the defendant acknowledging receipt of ` 1 lakh, he along with PW-2 and the plaintiffs were present. He has identified the receipt Ex.P3, which was said to have been executed in his presence. Having said so, in his examination-in-chief and giving a complete go by to the said evidence, in his cross- examination dated 12.10.11, he states that he is not aware as to whether the consideration amount was incorporated in Ex.P3 or not, when Ex.P3 was confronted to him. In his cross-examination, he admits that he had not read the contents of receipt Ex.P3 after it was executed. In his own words, his admission reads to the following effect;
¸ÁQëUÉ ¤¦-3 £ÀÄß vÉÆÃj¹zÁUÀ CªÀgÀÄ CzÀ£ÀÄß £ÉÆÃr £Á£ÀÄ CzÀ£ÀÄß N¢gÀ°®è.
24. This witness PW-3 should also be considered as an interested witness namely, he had been brought in to speak on behalf of the plaintiffs. He is a stooge witness. In his cross-examination dated 12.10.11, he admits that 42 whenever he was having short fall of cash, he would seek assistance from his brother Sri.P.S.Channabasappa and said Channabasappa and 1st plaintiff are family friends. His admission is to the following effect:-
£Á£ÀÄ FUÉÎ 30 ªÀµÀðUÀ½AzÀ AiÀiÁªÀÅzÉà PÉ®¸À ªÀiÁqÀÄwÛ®è. £À£Àß fêÀ£ÀzÀ DzsÁgÀPÉÌ £À£ÀUÉ gÀÆ.20,000/- ªÀÄ£É ¨ÁrUÉ §gÀÄvÀÛzÉ. ¸ÁPÁUÀ¢zÀÝ°è £ÀªÀÄä CtÚ ¦.J¸ï.ZÀ£Àߧ¸À¥Àà ºÀt PÉÆqÀÄvÁÛ£É. £ÀªÀÄä CtÚ ZÀ£Àߧ¸À¥Àà ªÀÄvÀÄÛ MAzÀ£Éà ªÁ¢ PÀÄlÄA§ ¸ÉßûvÀgÀÄ. In the light of this admission given by PW-3 in his cross- examination, his evidence also cannot be eschewed
25. Now let me examine as to the evidence of PW-1 alone is sufficient enough to accept his plea about there being a concluded contract between the parties with regard to sale of suit schedule property.
26. 2nd plaintiff got himself examined as PW-1. He has reiterated the averments made in the plaint in his affidavit filed in lieu of examination-in-chief. In fact, he is not at all aware of the averments made in the plaint, as is evident from his admission in his cross-examination dated 43 07.02.11. Infact, he states that he is not aware of the contents of the affidavit filed in lieu of his examination in chief. He also states that the matter was taken care of or looked after by 1st plaintiff-Jayakumar and as such he is not aware of it. His admission reads to the following effect:-
F PÉù£À §UÉÎ «ZÁgÀ ¤ªÀÄUÉ UÉÆwÛzÉAiÉÄ JAzÀgÉ ¸ÁQë ªÉÆzÀ®Ä dAiÀÄPÀĪÀiÁgï £ÉÆÃrPÉƼÀÄîwÛzÀÝgÀÄ. £À£ÀUÉ UÉÆwÛ®è JAzÀÄ GvÀÛj¹zÁÝgÉ. AiÀiÁªÀ AiÀiÁªÀ zÁR¯ÉUÀ¼À£ÀÄß ºÁQgÀÄvÉÛÃªÉ JAzÀÄ £ÀªÀÄä ªÀQîgÀ£ÀÄß £Á£ÀÄ PÉý w½zÀÄPÉÆArgÀĪÀÅ¢®è. °¸ïÖ £À°è vÉÆÃj¸À¯ÁzÀ f¯Áè zÁR¯ÉUÀ¼À£ÀÄß £ÁåAiÀiÁ®AiÀÄPÉÌ ºÁeÁgÀÄ¥Àr¹®è JAzÀgÉ £À£ÀUÉ UÉÆwÛgÀĪÀÅ¢®è. zÁªÁzÀ°è K£ÀÄ K£ÀÄ §gɹgÀÄvÉÛÃ£É RÄzÁÝV UÉÆwÛgÀĪÀÅ¢®è. ¥ÀæªÀiÁt ¥ÀvÀæzÀ°è PÀÆqÀ K£ÀÄ §gÉ¢zÉ UÉÆwÛgÀĪÀÅ¢®è.
27. Thus, it was incumbent upon the plaintiffs to examine the 1st plaintiff. However, a memo came to be filed on 12.10.11 before the trial court indicating that plaintiffs have no intention of examining 1st plaintiff. Said memo is available in the trial court records. PW-1 namely 2nd plaintiff admits that he is carrying on textile business as also business in real estate and he is an income tax assessee. In his cross-examination dated 20.08.11, PW-1 also admits he did not inform defendant to state that 44 amounts received by him on 23.04.2006 and 13.06.2006 was towards sale consideration and also admits that it has not been so reflected in Ex.P3. He also admits that in Ex.P3, the total consideration amount for sale of the property has not been reflected. It is no doubt true the contents of the document speaks for itself. He also admits that he did not request the defendant to incorporate that the amount paid by him under Ex.P3 is to be reflected as a sale consideration and he did not have any impediment to state so. He goes to the extent of contending that on other dates i.e., 23.04.06 and 13.06.06, when a sum of ` 1 lakh each was paid as per endorsements Ex.P3a and Ex.P3b, these two witnesses namely PWs 2 and 3 were present.
However, PW-2 in his examination-in-chief does not states so. PW-3 also does not state that further sum of Rs.2 lakhs was paid in his presence. As already noticed hereinabove, PW-1 seems to be ignorant of the sale transaction and his admission is to the following effect:-
"F ªÀåªÀºÁgÀzÀ §UÉÎ £À£ÀVAvÀ®Æ dAiÀÄPÀĪÀiÁgïUÉ ºÉZÁÑV UÉÆwÛzÉ JAzÀgÉ ¤d."45
28. PW-1 is not a person who does not possess any worldly knowledge as contended by him. He is a businessman carrying on textile business and also real estate business. He is an income tax assessee. He is aware of the nature of the transaction which he claims to have entered into with the defendant. He is not an illiterate person. In fact, he is aware as to how the transaction relating to immovable property is required to be carried out. In his cross-examination, he admits to all these facts. His admission reads as under:-
"£À£ÀUÉ PÀgÁgÀÄ, PÀæAiÀÄzÀ PÀgÁgÀÄ, PÀæAiÀÄ ¥ÀvÀæ ªÀÄvÀÄÛ gÀ¹Ãw JAzÀgÉ J£ÀÄ JAzÀÄ UÉÆwÛzÉ. ¤¦-3 gÀ°è PÀæAiÀÄzÀ PÀgÁj£À°è EgÀ¨ÉÃPÁzÀAvÀºÀ ªÀÄÄRåªÁzÀ CA±ÀUÀ¼ÀÄ EgÀĪÀÅ¢®è JAzÀgÉ ¤d."
29. This evidence would clearly go to show that PW- 1 was aware of the nature of transaction and though being aware of the said transaction, the ingredients of the sale was not incorporated in Ex.P3. In other words, this would clearly indicate that there was no ad-idem between parties with regard to sale consideration for sale of the suit 46 schedule property. Infact he has admitted that Exhibit P-3 does not contain the ingredients of a sale transaction.
30. In the background of evidence of the plaintiffs and their witnesses, evidence of the defendant is to be scrutinized or re-appreciated. It would emerge that undisputedly when Exhibit P-3 was executed by defendant in favour of the plaintiffs, there was no meeting of minds between the parties with regard to the sale consideration. The ingredients of sale transaction namely, offer and acceptance resulting in a concluded contract between the parties cannot be found under Ex.P3. No further steps have been taken by the defendant pursuant to Exhibit P-3 to indicate that there was ad idem between the parties or in other words plaintiffs have failed to establish that factually steps had been taken by the defendant, to arrive at a conclusion that defendant had offered to sell the suit schedule property to plaintiffs for a total consideration of ` 15 lakhs as pleaded and as such Exhibit P-3 had been executed by the defendant. Though PW-2 and PW-3 have been examined by the plaintiffs to prove the alleged sale 47 transaction, they have utterly failed in their attempt, in as much as, the cross-examination noted and extracted hereinabove would clearly indicate that they have pleaded their ignorance to the transaction that took place between the plaintiffs and the defendant and they have not been able to withstand the cross examination and defendant has been successful in demonstrating that said evidence is not to be believed.
31. In fact, trial court in the background of the plea put forward by plaintiffs at paragraph-3 of the plaint and the evidence tendered by PW-1 has gone one step forward to ascertain as to whether there was any oral agreement entered into between the parties and has answered the same in the negative at paragraph-21 of its judgment after analyzing the entire evidence available on record. Said finding cannot be construed either as perverse or contrary to the facts and records. There is neither improper appreciation of evidence nor there is lack of appreciation of evidence available on record and as such, there is no 48 perversity in the conclusion arrived at by the trial court at the time of analyzation of the entire evidence both oral and documentary evidence available on record.
32. It would also be relevant to note at this juncture itself that the very document Ex.P3 is stated to have been objected for being marked as agreement of sale by the plaintiffs at the time of marking of the document and the said objection was on the ground of non payment of requisite stamp duty and penalty. Trial court by its order dated 04.10.10 directed the plaintiffs to pay stamp duty and penalty as per Article 20 of the Karnataka Stamp Act, 1958. Aggrieved by this order, plaintiffs had approached this Court in W.P.No.35332/10 and this Court by order dated 13.07.11 by recording the submission made by the learned counsel appearing for the petitioners (plaintiffs) that it would be relied upon as a receipt only, allowed the writ petition by setting aside the order dated 04.10.10 passed by the trial court. It has been held by this Court as under:-
49
5. Learned counsel appearing for the respondent submits that as the counsel for the petitioners has made it clear that it is only a receipt and that the same is stated to be relied upon as a document, the petition may be disposed of permitting the petitioner to mark the receipt in evidence but not to evidence the agreement reached between the parties as alleged in the plaint.
33. In other words, plaintiffs themselves were clear and this Court had also made it clear that what was being permitted to be marked was to be treated only as a receipt and not as an agreement of sale. It is in this back ground, the entire evidence of PWs 1 to 3 came to be examined by the trial court namely the receipt marked as Exhibit P-3 and not as an agreement of sale and as such it has been held that there has been no agreement between the parties with regard to sale of the suit schedule property. Under Ex.P3, no sale consideration is fixed and the time for performance of the contract is also not fixed and thus, the ingredients of the agreement of sale being conspicuously absent under Ex.P3 and plaintiffs having failed to establish 50 and prove that there was an oral agreement of sale between the parties, trial court has rightly concluded that plaintiffs are not entitled for grant of equitable relief namely to exercise the discretion to decree the suit for specific performance.
34. Though learned advocates appearing for both the parties both before the trial court as well as before this Court have strenuously and vehemently contended with regard to the authenticity of the first page of Ex.P2 vis-a-viz Ex.D1, I am of the considered view that it would recede to the background and would be of no consequence whatsoever in view of the discussion made hereinabove with regard to the execution of Ex.P3 with reference to the pleadings and the evidence tendered by the parties, the matter is laid to rest insofar as the contentions raised by both the parties with regard to the fabrication of first page of Ex.P2.
35. In view of the author of Ex.P2 and Ex.D1 namely the learned advocate L.Madhusudhana having 51 been examined by the defendant as DW-3 whereunder he has stated that he has signed all the pages of reply notice and also admitted that sometimes he would have attested the signatures on all the pages of the legal notice, nothing much can be turned out by either of the parties to buttress their respective contentions with regard to the agreement of sale. When the trial court as well as this Court has held that there was no such agreement entered into between the parties and there was no concluded contract between the parties, this plea becomes insignificant.
36. In that view of the matter, the judgments of the Hon'ble Apex Court relied upon by the learned counsel appearing for the plaintiffs in the case of DALIP SINGH vs. STATE OF UTTAR PRADESH AND OTHERS reported in 2010(2) SCC 114 and in the case of S.P.CHENGALVARAYA NAIDU (DEAD) BY L.RS. vs. JAGANNATH (DEAD) BY L.RS. AND OTHERS reported in AIR 1994 SC 853 would not be any assistance to the plaintiffs. Though learned advocates appearing for both the parties have contended that under Section 20 of the Specific Relief Act the suit ought to be 52 decreed or under sub-section (3) of Section 20, the suit ought not to be decreed, I am of the considered view that the trial court has rightly refused to exercise the discretion vested in it to deny the relief for decreeing the suit for specific performance.
37. Though Sri.Paras Jain, learned counsel appearing for the plaintiffs would contend that mere inadequacy of the consideration or the mere fact that contract if ordered to be performed by the defendant would be onerous on the defendant or the escalation of the prices of the suit schedule property would not be a ground to reject the decree for specific performance and though there being no dispute with regard to the said proposition, I am not inclined to accept said submissions for reasons more than one; namely, it requires to be noticed in the instant case that plaintiffs contended in their evidence that defendant had approached the plaintiffs to sell the suit schedule property in order to perform his daughter's marriage and drawing sustenance from the cross examination of DW-1 wherein it has been elicited by the 53 learned counsel appearing for the plaintiffs that during May 2006, marriage of the defendant's daughter took place i.e., after the execution of Ex.P3 on 19.04.06 and before the receipt of the last payment of ` 1 lakh i.e., on 13.06.2006 as per Ex.P6. In other words, during this interregnum period i.e., between 19.04.06 to 13.06.06, the marriage of the defendant's daughter undisputedly took place and as such for said purpose defendant had agreed to sell suit schedule property to plaintiffs for `15 lakhs. As to whether the defendant was in such a financial distress which forced him to sell the suit schedule property to perform his daughter's marriage is the question which would peg the issue and when the evidence on hand is examined, the answer has to be in the negative, in as much as PW-3 in his cross-examination dated 12.10.11 admits that near Ramagiri in Holalkere taluk bus-stand, defendant is having a shopping complex. However, he states that he is unaware as to whether defendant is getting rental income of ` 40,000/-. He also states in his cross-examination that 54 the defendant is financially well of. Hence, contention of plaintiffs in this regard cannot be accepted.
38. PW-1 in his cross-examination dated 20.8.2011 admits that he is also financially well off and he had formed a layout which is named as `Mahaveera Nagar' and he has constructed a residential building in the said layout. 1st plaintiff is also undisputedly an income tax assessee. No where PW-1 states in his cross-examination that defendant was in financial distress which allegedly forced him to sell suit schedule property. On the other hand, evidence available on record would clearly indicate that both the plaintiffs are financially well of and they are doing business of real estate and 1st plaintiff is also having a shopping complex at Lakshmi Bazar, a lodge behind Roopam Talkies, another shopping complex behind KSRTC bus stand, Chitradurga, a lodge near the said bus stand. These facts would clearly indicate that it is plaintiffs who are financially well of and defendant was also not placed in a situation to sell the suit schedule property in favour of plaintiffs to perform marriage of his daughter. As such, 55 trial Court has refused to exercise the discretion vested in it, to grant decree for specific performance and rightly so.
39. One another factor which requires to be noticed is that plaintiffs contented that possession of suit schedule property was delivered to them and they have expended considerable amount viz., ` 2 lakhs for removing shrubs, making the land level for formation of layout and as such, plaintiffs were likely to suffer loss rather than defendant, if a decree for specific performance is not granted in their favour.
40. PW-1, at paragraph-9 of plaint would specifically contend that plaintiffs were never in possession of suit schedule property. It has been pleaded in paragraph-9 of the plaint to the following effect:
"When all efforts of the plaintiff to gain possession and title over the schedule land failed, the plaintiffs got issued a Legal Notice on 19/12/2006, calling upon the defendant to accept the balance sale consideration, and to execute the sale deed of the schedule land in 56 their favour before the Sub-Registrar Chitradurga."
41. This averment made in paragraph-9 of the plaint is diametrically opposite to what is pleaded in paragraph-7, wherein plaintiffs have pleaded that after they have spent more than ` 2 lakhs for formation of layout, in addition to that, having spent their precious manpower on the said project. PW-1 in his cross-examination dated 6.9.2011 conceded that possession of the suit schedule property is with the defendant, which is to the following effect :
"zÁªÁ ¸ÀévÀÄÛ ªÉÆzÀ°¤AzÀ®Æ ¥ÀæwªÁ¢AiÀÄ ¸Áé¢üãÀzÀ°èzÉ JAzÀgÉ ¤d. ¥ÀæwªÁ¢AiÀÄÄ £ÀªÀÄUÉ ¸Áé¢üãÀ ©lÄÖPÉÆnÖzÀÝ §UÉÎ £ÀªÀÄä §½ gÀ¹Ãw ©lÄÖ ¨ÉÃgÉ AiÀiÁªÀÅzÉà zÁR¯É EgÀĪÀÅ¢®è."
42. In fact, PW-1 admits that defendant has formed 28 sites measuring 30' x 50' each in suit schedule property in his cross-examination dated 20.8.2011. Further, plaintiffs admit that they intended to purchase suit 57 schedule property with an intention to form sites and sell it for profit to others. Thus, evidence on record would clearly indicate that there were no substantial acts made by the plaintiffs over the suit schedule property which had resulted or caused loss to them as a consequence of an alleged contract which requires to be accepted by this Court by granting a decree for specific performance. When plaintiffs themselves admit that contract in question was entered into by them for the purposes of formation of sites and selling it to third parties, it would clearly indicate that it is a case of speculation which the plaintiffs intended and as such, I am of the considered view that trial Court has rightly refused to exercise its discretion to decree the suit for specific performance. In view of said discussion made herein above, I am of the considered view that Point Nos.1 and 2 formulated herein above requires to be answered in favour of defendant and against plaintiffs, since judgment and decree passed by the trial court does not suffer from any infirmities either on facts or in law and there being no other contrary material available on record to hold that 58 judgment and decree passed by trial court has resulted in perversity.
Re: Point No.3 :
43. Sri Ashok Kalyanashetty, learned counsel appearing for defendant has contended that trial Court was not justified in directing the defendant to pay interest at the rate of 18% p.a. on the amount of ` 2,50,000/- received by defendant from plaintiffs under Ex.P-3, while directing refund of said amount, by contending that it is too harsh or excessive or exorbitant and reiterating his submissions in this regard, learned counsel contended that defendant had filed an application before trial Court on 6.9.2011 under Section 151 of C.P.C. for issuance of order for depositing ` 2,50,000/-. The affidavit supporting said application which has been filed on 6.9.2011 would indicate that defendant intended to deposit said amount before trial Court. The said application was not opposed by plaintiffs.
Though argument of Sri Ashok Kalyanashetty, learned counsel for defendant would look attractive at first sight, 59 but same does not merit acceptance for the reasons more than one. Undisputedly, plaintiffs got issued a legal notice on 19.12.2006, which came to be replied by defendant on 23.12.2006. It has been stated in reply that though defendant requested plaintiffs to take back amount of ` 2,50,000/- and return the receipt, same was not done by plaintiffs and legal notice as per Ex.P-1 came to be issued. In reply notice-Ex.D-1, defendant does not state as to what steps he took to return said amount along with reply notice it could have been refunded. After filing of suit, in written statement filed on 16.9.2008 (i.e., two years after Ex.D-2), it has been contended in paragraph 10 that plaintiffs themselves had sent word through Sri K.N.Vishwanathaiah, Advocate, Chitradurga, for return of money, but plaintiffs with an ulterior motive, have not received amount. The same is inconsistent, inasmuch as, even according to defendant, when plaintiffs themselves have sent a word through Sri K.N.Vishwanathaiah, nothing prevented defendant to hand over said amount to Sri.K.N.Vishwanathaiah or in the alternative, defendant 60 could have returned the said amount through reply notice, by sending it through Demand Draft, cheque or otherwise. Defendant did not take any such steps undisputedly. Said Sri K.N.Vishwanathaiah has been examined as DW-2. Affidavit filed in examination-in-chief is as vague as vagueness could be. He does not state that amount of `2,50,000/- was handed over to him by defendant for being returned to the plaintiffs. He does not state anything with regard to rate of interest which allegedly plaintiffs said to have claimed from defendant. Even according to defendant, last installment of Rs.1 lakh was paid by PW-1 i.e. 2nd plaintiff on 13.6.2006 and said K.N.Vishwanathaiah
- DW-2 was approached by plaintiffs only during February 2007. In other words, defendant without taking any effective steps as expected of a prudent person, particularly, he himself being an advocate, had retained money of plaintiffs from 2006 to 2007 without any justifiable cause. As such, defendant was not justified in retaining the said amount. Mere filing of an application would not absolve the defendant of his liability or 61 responsibility, particularly when defendant having filed such an application, having not pursued the same to its logical end, defendant cannot now before this Court attempt to take shelter under the said application filed on 6.9.2011 to stave off his liability to pay interest to plaintiffs after having retained the said amount from 2006 onwards, till it was deposited before the trial Court on 10.5.2012. Undisputedly, defendant has not given any information about such deposit to plaintiffs either before this Court or before trial Court. Even otherwise, trial Court has considered the plea of defendant with regard to refund of amount retained by defendant and on account of there being no contract between parties and defendant having retained said amount of ` 2,50,000/- undisputedly paid by plaintiffs to defendant, he is bound to refund the said amount received from plaintiffs and in that view of the matter, trial Court in paragraph -42 of its judgment in question has noticed that both plaintiffs being businessman, would have invested the same in a prudent manner and earned profit, which they have been deprived 62 of on account of defendant retaining the said amount, particularly when having contended that there being no contract between parties, he would not be entitled to retain the said amount. As such, it has ordered refund of said amount with interest @ 18% p.a. by taking note of the fact that when suit was at the stage of conclusion, an application under Section 151 of C.P.C. came to be filed by defendant seeking permission to deposit the said amount and make a show of, of his inclination to deposit the amount which undisputedly was not exhibited for a period of three years. As such, trial Court was fully justified in awarding interest @ 18% p.a. on said amount of `2,50,000/-and as such the judgment and decree passed by the trial court does not suffer from any infirmity whatsoever. As such, contention of Sri Ashok Kalyanashetty, learned counsel for defendant that interest awarded by trial Court is exorbitant, cannot be accepted and as such, point No.3 formulated herein above has to be answered in favour of plaintiffs and against the defendant. 63
44. For the reasons aforesaid, following order is passed:
ORDER
(i). Appeal is hereby dismissed. Judgment and decree passed by II Addl.Senior Civil Judge, Chitradurga, in O.S.No.19/2008, dated 17.4.2012 is hereby affirmed.
Parties to bear their respective costs. Registry is directed to draw the decree accordingly.
(ii). Registry is directed to return records to jurisdictional Court forthwith.
(iii). In view of Appeal having been disposed of on merits, question of considering I.A.No.2/2012 for stay does not arise. It stands rejected.
Sd/-
JUDGE DR/*bk/srl