Bangalore District Court
Sri M.R. Sampangiramaiah vs Smt. K. Archana on 30 November, 2018
C.R.P.67 Govt. of Karnataka
Form No.9(Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XII ADDL. CITY CIVIL JUDGE, AT
BENGALURU
Dated this the 30th day of November, 2018.
PRESENT: SRI. SATHISHA L.P., B.A.,LL.B.,
XII ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH.No.27), BENGALURU
O.S.No.8313/2011 C/W
O.S.NoS.8522/2011, 8524/2011, 2600/2012, 6716/2013,
8548/2013, AND 2043/2014
O.S.No.8313/2011
PLAINTIFFS : 1. Sri M.R. Sampangiramaiah,
Aged about 62 years,
S/o Late M.S. Ramaiah
Sri Laxmi Venkateshwara Nilaya,
No.9, Bethel Street,
HRBR Layout, Kalyan Nagar,
Bengaluru-43
2. M.S. Rajaram
Aged about 30 years,
S/o M.R. Sampangiramaiah,
Sri Laxmi Venkateshwara Nilaya,
No.9, Bethel Street,
HRBR Layout, Kalyan Nagar,
2 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012,
6716/2013, 8548/2013, AND 2043/2014
Bengaluru-43
(By Sri R. Rajagopalan, Advocate)
VS.
DEFENDANTS : 1. Smt. K. Archana
Aged about 32 years,
W/o R. Nataraj,
Residing at "Shivachethana"
III Cross, I Main,
Amarjyothi Layout,
Sanjaynagar, RMV II Stage
Bengaluru-560094
2. K.V. Krishnamurthy,
Aged about 59 years,
S/o Late Guthigeppa,
Residing at No.78,
D-5 Block, Kendriya Vihar,
Yelahanka, Bengaluru
(By Sri A.S. Advocate)
Date of Institution of the suit : 25.11.2011
Nature of the suit : Suit for Declaration and
Possession
Date of commencement of : 12.02.2014
recording of the evidence
Date on which the Judgment was : 30.11.2018
pronounced
Total Duration Years Months Days
07 00 05
3 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012,
6716/2013, 8548/2013, AND 2043/2014
O.S.No.8522/2011
PLAINTIFFS : 1. Sri M.R. Sampangiramaiah,
Aged about 62 years,
S/o Late M.S. Ramaiah
Sri Laxmi Venkateshwara Nilaya,
No.9, Bethel Street,
HRBR Layout, Kalyan Nagar,
Bengaluru-43
2. M.S. Rajaram
Aged about 30 years,
S/o M.R. Sampangiramaiah,
Sri Laxmi Venkateshwara Nilaya,
No.9, Bethel Street,
HRBR Layout, Kalyan Nagar,
Bengaluru-43
(By Sri R. Rajagopalan, Advocate)
VS.
DEFENDANT : 1. K.V. Krishnamurthy,
Aged about 59 years,
S/o Late Guthigeppa,
Residing at No.78,
D-5 Block, Kendriya Vihar,
Yelahanka, Bengaluru
(By Sri A.S. Advocate)
Date of Institution of the suit : 02/12/2011
Nature of the suit : Suit for Possession
Date of commencement of : 12.02.2014
recording of the evidence
4 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012,
6716/2013, 8548/2013, AND 2043/2014
Date on which the Judgment was : 30.11.2018
pronounced
Total Duration Years Months Days
06 11 28
O.S.No.8524/2011
PLAINTIFFS : 1. Sri M.R. Sampangiramaiah,
Aged about 62 years,
S/o Late M.S. Ramaiah
Sri Laxmi Venkateshwara Nilaya,
No.9, Bethel Street,
HRBR Layout, Kalyan Nagar,
Bengaluru-43
2. M.S.Rajaram
Aged about 30 years,
S/o M.R. Sampangiramaiah,
Sri Laxmi Venkateshwara Nilaya,
No.9, Bethel Street,
HRBR Layout, Kalyan Nagar,
Bengaluru-43
(By Sri R. Rajagopalan, Advocate)
VS.
DEFENDANTS : 1. Smt. K. Anitha
Aged about 35 years,
W/o H. Siddaraju,
Residing at "Siddeshwara Nilaya"
6th Cross, II Main,
Vijayanagara Layout,
Tumkur-02
2. K.V. Krishnamurthy,
Aged about 59 years,
5 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012,
6716/2013, 8548/2013, AND 2043/2014
S/o Late Guthigeppa,
Residing at No.78,
D-5 Block, Kendriya Vihar,
Yelahanka, Bengaluru
(By Sri A.S. Advocate)
Date of Institution of the suit : 02/12/2011
Nature of the suit : Suit for Possession
Date of commencement of : 12.02.2014
recording of the evidence
Date on which the Judgment was : 30.11.2018
pronounced
Total Duration Years Months Days
06 11 28
O.S.No.2600/2012
PLAINTIFFS : 1. Sri M.R. Sampangiramaiah,
Aged about 62 years,
S/o Late M.S. Ramaiah
Sri Laxmi Venkateshwara Nilaya,
No.9, Bethel Street,
HRBR Layout, Kalyan Nagar,
Bengaluru-43
2. M.S. Rajaram
Aged about 30 years,
S/o M.R. Sampangiramaiah,
Sri Laxmi Venkateshwara Nilaya,
No.9, Bethel Street,
HRBR Layout, Kalyan Nagar,
Bengaluru-43
(By Sri Thrimurthy K.P., Advocate)
6 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012,
6716/2013, 8548/2013, AND 2043/2014
VS.
DEFENDANTS : 1. Sri Kiran V. Katekar
Aged about 38 years,
S/o Vittalrao Katekar
R/at No.49, 3rd Cross,
Binny Layout, Attiguppe,
Vijayanagar,
Bengaluru-560040
2. K.V.Krishnamurthy,
Aged about 59 years,
S/o Late Guthigeppa,
Residing at No.78,
D-5 Block, Kendriya Vihar,
Yelahanka, Bengaluru
(By Sri A.S. Advocate)
Date of Institution of the suit : 07.04.2012
Nature of the suit : Suit for Declaration, Injunction
and Possession
Date of commencement of : 12.02.2014
recording of the evidence
Date on which the Judgment was : 30.11.2018
pronounced
Total Duration Years Months Days
06 07 23
O.S.No.6716/2013
PLAINTIFF : K.V. Krishnamurthy,
Aged about 59 years,
S/o Late Guthigeppa,
Residing at No.78,
D-5 Block, Kendriya Vihar
7 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012,
6716/2013, 8548/2013, AND 2043/2014
Yelahanka,
Bengaluru-64
(By Sri A. Sampath, Advocate)
VS.
DEFENDANTS : Sri M.R. Sampangiramaiah,
Aged about 61 years,
S/o Late M.S. Ramaiah
R/o Sri Lakshmivenkateshwara
Nilaya, No.9, Bethel Street,
HRBR Layout, Kalyan Nagar,
Bengaluru-560 043
(By Sri KPT, Advocate)
Date of Institution of the suit : 26.08.2013
Nature of the suit : Money Suit
Date of commencement of : 12.02.2014
recording of the evidence
Date on which the Judgment was : 30.11.2018
pronounced
Total Duration Years Months Days
05 03 04
O.S.No.2043/2014
PLAINTIFF : K.V. Krishnamurthy,
Aged about 62 years,
S/o Late Guthigeppa,
Residing at Flat No.312,
II Floor, Divya MSR Gateway
Old HMT Main Road
Gokul, Bengaluru
(By Sri Sampath A. Advocate)
VS.
8 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012,
6716/2013, 8548/2013, AND 2043/2014
DEFENDANT : Sri M.R. Sampangiramaiah,
S/o Late M.S. Ramaiah
Aged about 61 years,
R/o Sri Lakshmivenkateshwara
Nilaya, No.9, Bethel Street,
HRBR Layout, Kalyan Nagar,
Bengaluru-560 043
(BY Sri KPT, Advocate)
Date of Institution of the suit : 12.03.2014
Nature of the suit : Money Suit
Date of commencement of : 12.02.2014
recording of the evidence
Date on which the Judgment was : 30.11.2018
pronounced
Total Duration Years Months Days
04 08 18
O.S.No.8548/2013
PLAINTIFF : K.V. Krishnamurthy,
Aged about 62 years,
S/o Late Guthigeppa,
Residing at Flat No.312, B-Block
Divya M.S.R. Gateway
Gokul, Mathikere
Bengaluru-560 054
(By Sri Sampath A. Advocate)
VS.
DEFENDANT : Sri M.R. Sampangiramaiah,
Aged about 63 years,
S/o Late M.S. Ramaiah
R/o Sri Lakshmivenkateshwara
Nilaya, No.9, Bethel Street,
9 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012,
6716/2013, 8548/2013, AND 2043/2014
HRBR Layout, Kalyan Nagar,
Bengaluru-560 043
2. Mr. Varghese Mathew,
S/o H.P.Mathew,
Aged about 47 years,
3. Mrs. Sophia Varghese,
Aged about 40 years,
W/o Mr. Varghese Mathew
Defendant No.2 and 3
R/at No.811, Divya M.S.R. Gateway
Gokul, Bengaluru
(D1 by Sri K.P.T. Advocate
D2 & 3 - Exparte)
Date of Institution of the suit : 25.11.2013
Nature of the suit : Suit for Specific Performance
Date of commencement of : 12.02.2014
recording of the evidence
Date on which the Judgment was : 30.11.2018
pronounced
Total Duration Years Months Days
05 00 05
(SATHISHA L.P.)
XII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
10 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012,
6716/2013, 8548/2013, AND 2043/2014
COMMON JUDGMENT
This suit O.S.No.8313/2011 is filed by the plaintiffs against the defendants for the relief of cancellation of sale deed dated 13.04.2009 executed by plaintiffs in favour of first defendant registered as document No.75, in the office of Senior Sub-Registrar, Yeshwanthapura, in respect of schedule property, for vacant possession of schedule D property and for costs and such other reliefs.
2. The brief facts of the plaintiffs' case is that, plaintiffs are owner of the suit schedule property. The first plaintiff came in contact with second defendant in the end of year 2000. Second defendant represented that he is friend of one Mr. G. Vidyaraj, then resident of Basavanagudi and said Vidyaraj was the direct descendent of the Kings of Vijayanagar Empire and stated that said Vidyaraj inherited as a legal heir of the Kings of Vijayanagar, the Gems, which are called as Raja Rathna, Neelangali and Rani Rathna. Further it is averred in the plaint that, second defendant further represented that said Vidyaraj along with the said three Gems, has also other gems, rubies, which are fabulously valuable. 11 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 The second defendant also informed the first plaintiff that said Vidyaraj had authorised the second defendant to sell the rubies to third parties and he induced the plaintiffs to purchase the rubies. Further it is also pleaded that, second defendant in order to convince the first plaintiff, gave photocopy of several documents confirming that the said Vidyaraj was the direct descendent of Vijayanagar Kings and he owned several rubies of the said empire. When the second defendant persuaded the first plaintiff to purchase the rubies, he was constructing residential house and he is having financial constraint and expressed his inability. For that, second defendant represented that he will pay the value of the said gems for the present he will arrange finance from other sources. In the middle of 2005, the second defendant purported to sold a large Ruby, red in colour to the first plaintiff and he further stated that second defendant purchased the said Gem by paying the value to the said Vidyaraj and it is also pleaded that said Ruby was handed over to the plaintiff and it was warned to him unless and until he attains age of 61 years, he should not deal with the said Ruby or he should not sell the same and given 12 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 it in a closed box and same was kept in the pooja room of the plaintiff No.1. Towards the consideration of the said Ruby, he has executed the sale deed dated 13.04.2009 in favour of first defendant and no consideration was passed on to the plaintiffs. On 20.03.2011 plaintiff No.1 opened the box, and then he revealed that it is granite weighing 17 kgs, which is worthless. Defendant No.2 by playing fraud, misrepresentation, coercion has got executed the sale deed in favour of first defendant. After coming to know the conspiracy and cheating by the defendants, he lodged police complaint, case is registered against the defendants and charge sheet is also filed and said case is pending for consideration. The sale deed dated 13.04.2009 executed by the plaintiffs in favour of defendant No.1 is not valid, no consideration is passed on to them. Hence they seek for cancellation of the sale deed.
3. After service of summons, the defendants have appeared before Court and filed detailed written statement denying all the plaint averments and have taken specific 13 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 contention that the alleged Ruby transaction is a story created by plaintiff No.1 and plaintiff No.1 executed the sale deed after receipt of the sale consideration amount and apart from that, he has also due amount and when the cheque issued by plaintiff No.1 is dishonoured and legal notice was issued for the offence U/Sec.138 of N.I. Act, only as counterblast, the plaintiffs have come before the Court with a false and created story to escape the liability. When the sale deed executed by the plaintiffs after the receipt of consideration amount, the relief cannot be granted and seeks for dismissal of the suit.
4. On the basis of the above pleadings, the following issues were framed:-
1. Whether the plaintiffs prove that the 2nd defendant offered to sell him a large red ruby and received Rs.1.5 crores and ultimately it was found to be a ordinary granite weighing 17 Kg and thereby cheated the plaintiffs?
2. Whether the plaintiffs prove that towards money for the ruby, the 2nd defendant got executed sale deed in respect of 'B', 'C' and 'D' properties without paying any consideration amount?14 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014
3. Whether the plaintiffs prove cause of action?
4. Whether the defendant No.2 proves that the sale transaction was a genuine transaction?
5. Whether the court fee paid is sufficient?
6. What order or decree?
5. The plaintiffs and defendants have led common evidence and produced common documentary evidence in all the suits, i.e., O.S.No.8313/2011, O.S.No.8522/2011, O.S. No.8524/2011, O.S.No.2600/2012, O.S.No.6716/2013, O.S. No.8548/2013, and O.S.No.2043/2014. Plaintiff No.1 is examined as P.W.1 and got marked Ex.P.1 to P.19. One Mr. G.A.Biradar is examined as P.W.2 and Mr. B.S.N.Shetty is examined as P.W.3. The defendant No.2 is examined as D.W.1 and got marked Ex.D.1 to D.205, one Mr. Kiran V. Katekar, who is defendant No.1 in O.S.No.2600/2012 is examined as D.W.2, Archana is examined as D.W.3 and Anitha is examined as D.W.4.
6. Learned counsel for plaintiffs has vehemently contended that the sale deed executed by them with respect to 15 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 the schedule property is not supported by any consideration and the defendants have no so much of financial capacity to pay the sale consideration amount and also they have not produced any documents to show that sale consideration is paid with respect to the suit schedule property.
7. Per contra, defendants' counsel contended that the sale deed is registered in accordance with law and the same is executed by plaintiffs and now the plaintiffs cannot dispute that they have not received any money and there was financial transactions between the defendant No.2 and plaintiff No.1 and with an intention to escape from the liability, in the Section 138 of N.I. Act proceedings, plaintiffs have filed this false suit and seeks for dismissal of the suit.
8. Heard the arguments and perused the records.
9. My answer on the above issues are:-
Issue No.1: In the negative Issue No.2: In the negative Issue No.3: In the negative 16 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 Issue No.4: In the affirmative Issue No.5: In the affirmative Issue No.6: As per final order, for the following:-
REASONS
10. Issue Nos.1 and 2:- These two issues are taken together for the convenience.
11. The definite case of the plaintiffs is that, sale deed, i.e., Ex.P.1 is got executed by defendant No.2 in favour of defendant No.1 by misrepresentation, undue influence and coercion. When they plead misrepresentation, coercion and undue influence, they have to plead and prove the elements of misrepresentation, undue influence and coercion. Under Section 15 of Indian Contract Act, coercion is defined. Plaintiffs have not proved nor pleaded the elements of coercion, as defined under Section 15 of the Contract Act. The plaintiffs have also pleaded misrepresentation. Section 18 of the Contract Act defines what is misrepresentation. Here also, plaintiffs have not pleaded the ingredients of misrepresentation and not proved the ingredients 17 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 of misrepresentation in the pleading and Section 16 is defined what is undue influence. Plaintiffs have just mentioned undue influence, have not pleaded nor proved the ingredients of undue influence.
12. The definite case of the plaintiffs is that, no consideration is passed on to them for execution of Ex.P.1, which is sale deed dated 13.04.2009. Admittedly, Ex.P.1 came into existence in pursuance of the agreement dated 19.12.2005, which is marked at Ex.P.17. Nowhere in his pleadings or in his evidence plaintiff No.1 has not disputed Ex.P.17. He never stated that he has not executed Ex.P.17. It is very important to note that in page No.2 at the bottom of Ex.P.17 it is mentioned that:
"The vendor has offered to sell the schedule C flat unto the purchaser at the rate of Rs.2100.00 per sq.ft of super built up area aggregating to a sum of Rs.34,49,607/- (thirty four lakhs forty nine thousand six hundred and seven rupees only) which is rounded off to a sum of 34,50,000/- (Thirty four lakhs fifty thousand rupees only) and the purchaser has agreed to purchase the schedule C flat for total sale consideration of 18 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 Rs.34,50,000/- (Thirty four lakhs fifty thousand rupees only). In consideration of this agreement, the purchaser has this day paid a sum of Rs.34,50,000/- (Thirty four lakhs fifty thousand rupees only) to the vendor by cash and the vendor does hereby acknowledge the receipt of the entire sale consideration."
So, Ex.P.1 came into picture in pursuance of Ex.P.17. Under Ex.P.17 itself the parties were agreed to Rs.34,50,000/- and as on the date of agreement itself, plaintiff No.1 has received entire sale consideration amount. But in the pleading, he never whispered a single sentence about Ex.P.17. It is very much interesting to note that plaintiff No.1 has not disputed any of the documents, except stating that the documents had came into picture only for the ruby transaction.
13. Now coming to the point of receiving the ruby by plaintiff No.1, let us examine the background of plaintiff No.1. Admittedly plaintiff No.1 is not an ordinary person, who hails from a respectable family, born rich and is director of many institutions and his family is known in social service and having a very good 19 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 family background as well as educational background. He has pleaded Vidyaraj and defendant No.2 have sold him a ruby weighing 17 kgs. When the person having so much educational qualification and background, it cannot be believed that he purchased a ruby weighing 17 kgs without at least seeing the same and the condition of defendant No.2 is that it should not be sold or dealt until the plaintiff No.1 reaches the age of 61 years. But it does not mean that he should not see the same. Plaintiff No.1 has lodged police complaint on 27.04.2011 and in the complaint he has mentioned that he has notarized sale agreement on stamp paper dated 24.09.2001, declaration/affidavit dated 09.08.2000, the Illustrative Weekly of India paper cutting article news papers about this ruby and other rubies. But during the course of trial he has not produced all these records. At least he should have produced the photograph of the disputed ruby. He has not mentioned on which date he received the ruby and he has not mentioned why he has not seen the ruby when it was given to him. Plaintiff No.1 who is examined as P.W.1 in his cross-examination has admitted that "I have copy of authorization 20 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 referred in para 4 of the plaint". When such being the case, there is no explanation forthcoming from the plaintiff No.1 that why he has not produced single material with respect to ruby transaction except his oral testimony. If he has notarized copy of sale agreement, declaration and other documents, which are mentioned in his police complaint, definitely he should have produced the same and he has not taken pain to produce at least the photograph of the alleged granite, i.e., ruby and he has stated that he has purchased the said ruby for crores worth by paying the same. When as per his cause of action column, he has opened the box on 20.03.2011, thereafter he came to know that he has been cheated by the defendants and deceased Vidyaraj, then in the ordinary course definitely he should have lodged the complaint immediately after opening of box. But he has not done so. He has lodged the complaint on 27.04.2011. The main relief sought by him for cancellation of sale deed dated 13.04.2009, i.e., Ex.P.1 with respect to suit schedule property on the ground that no consideration is passed. When it is proved before Court that consideration is passed on to him under Ex.P.17, which is not 21 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 disputed by the plaintiff No.1, plaintiffs are not entitled for the cancellation relief and the suit is filed by the plaintiffs only after plaintiff No.1 received notice of cheque bounce issued by defendant No.2 as per Ex.D.171 dated 26.10.2011, Ex.D.174 dated 26.10.2011, and Ex.D.194 dated 07.03.2011, shows that suit of the plaintiffs is only as a counter blast to the Section 138 of N.I. Act case filed by defendant No.2.
14. Plaintiff No.1 himself has admitted in Ex.P.1 sale deed dated 13.04.2009, that the sale consideration amount is received in the agreement entered into between plaintiff No.1 and defendant No.1, under Ex.P.17. In Ex.P.17 it is clearly mentioned that the consideration amount of Rs.34,50,000/- is received by plaintiff No.1 by cash. It is also supported by possession letter dated 13.08.2009 marked as Ex.D.9, the possession is delivered with respect to suit schedule property by plaintiff No.1 in his own letterhead and in that Ex.D.9 also plaintiff No.1 has categorically mentioned that he has received the sale consideration in full and final settlement of the amount towards the suit schedule property 22 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 and he has also received Ex.D.10 from defendant No.1 for taking over the keys. These documents, i.e., Ex.P.17, Ex.D.9 and D.10 have not been disputed by plaintiff No.1 either in the plaint or in the evidence. When he has not disputed these documents, it means that he has admitted. Without disputing these documents, the dispute raised by the plaintiffs with respect to Ex.P.1 that same is executed without receiving the sale consideration amount and only with respect to ruby transaction, cannot be accepted and he is estopped from contending so.
15. The specific case of the plaintiffs is that, defendant No.2 on the guise of selling ruby on behalf of Vidyaraj , has sold a granite weighing 17 kgs. It is to be noted that a man having so much of worldly knowledge and alleged to have paid amount in crores, has received the ruby without seeing the same, cannot be believed at all. His further case is that, defendant No.2 advised as per the say of Vidyaraj, that until and unless plaintiff No.1 reaches the age of 61 years, he should not deal with or sell the ruby. But it is not the case of the plaintiff No.1 that he has not 23 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 seen the ruby at the time of receiving the same. Nowhere in his pleading stated that he has not seen the ruby at the time of receiving the same and even if he say so, that cannot be believed, because that it was not the condition that he should not see and only purchase. The age of the plaintiff No.1 becomes very much relevant. He has not stated in his pleading that what was his date of birth and when he attained the age of 61 years. In his complaint lodged to the police on 27.04.2011, which is marked as Ex.P.5, he has stated that he has opened the box on an auspicious day after reaching 61 years. But he has not mentioned the day on which he opened the box and when he reached 61 years. He has lodged police complaint on 27.04.2011 and in the complaint he has not stated that he has opened the box on 20.03.2011. Even if it is admitted for a moment, there is time gap in lodging the complaint and immediately after receiving the notice issued by defendant No.2 herein for bouncing of cheques, he has lodged police complaint. It is very much relevant to note that complaint is lodged after the death of Vidyaraj. It is come in the evidence that he is familiar with Vidyaraj. Plaintiff No.1 has 24 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 stated that in the middle of 2005 alleged ruby was delivered to him and he opened the box on 20.03.2011. He has not pleaded what was the age when he received the ruby and what was the age when he opened the box and he has categorically pleaded that he kept the alleged ruby in the pooja room. But he has not examined any of his family members regarding the same. When a thing weighing about 17 kgs kept in the pooja room, definitely family members should have observed it and might have enquired plaintiff No.1 about the same and even otherwise he definitely should have disclosed, if he has purchased ruby worth about crores of rupees. When he has not examined any of his family members and when he fails to produce at least a photograph of the alleged ruby and when he miserably fails to produced documents which he has mentioned in his police complaint, i.e., notarized sale agreement, declaration and all these things in order to support his contention, except oral testimony is not sufficient to believe the version of plaintiff No.1. Merely because for Ex.P.1 the amount of sale consideration is paid in cash, now he cannot take undue advantage of the same, in the presence of Ex.P.17, 25 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 Ex.D.9 and D.10. From the appreciation of the entire oral as well as documentary evidence, it is clear that there is financial transaction between plaintiff No.1 and defendant No.2 and when defendant No.2 issued Section 138 N.I. Act notice, plaintiffs have come up with this story and have filed case. Hence it can safely hold that issue Nos.1 and 2 are not proved by the plaintiffs and hence they are answered in 'negative'.
16. Issue No.3:- Plaintiffs in their plaint have pleaded that cause of action has arose on 13.04.2009 when the sale deed was executed and on 20.03.2011. 13.04.2009 is the date of execution of sale deed, i.e., Ex.P.1 and 20.03.2011 is the date when plaintiff No.1 alleged to have opened the box. But it is not substantiated by the plaintiff No.1 that he has opened the box on 20.03.2011, because in the police complaint he has stated that he has opened the box on an auspicious day and only in the suit, i.e., in the cause of action column he has stated that he has opened the box on 20.03.2011. In this regard it is to be noted, what prevented the plaintiff No.1, suppose if he has opened the 26 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 box on 20.03.2011, to mention the same in his police complaint lodged as per Ex.P.5. But in the police complaint he has baldly stated that on the auspicious day he has opened the said box. He has not examined any of his family members to substantiate this and suit is filed by the plaintiffs for cancellation of the sale deed dated 13.04.2009, which is proved as per Ex.P.1. When he seeks for declaration, his suit should be filed within 3 years as per Article 59 of Limitation Act. In the absence of any evidence that he has opened the box on 20.03.2011 and when he has miserably failed that defendant No.2 has on the guise of selling ruby sold granite weighing 17 kgs, it can be safely hold that plaintiff has failed to prove cause of action. Hence this issue is held in the 'negative'.
17. Issue No.4:- It is undisputed fact that plaintiff No.1 was the owner of the suit schedule property and he has sold the same to defendant No.1 as per Ex.P.1 sale deed dated 13.04.2009. The contention of the plaintiff No.1 is that, he has not received any sale consideration amount under Ex.P.1. But in 27 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 the pleading he has not disputed the agreement entered into by plaintiff No.1 and defendant No.1, which is marked as per Ex.P.17. Plaintiff not at all whispered a single word about Ex.P.17 in his pleading and also admits executed of every document and cheque produced in these cases, but his only explanation is that, same was executed or issued in connection with ruby. But in the present suit, he has not at all stated nor disputed that he has not executed Ex.P.17 and Ex.D.9. So when plaintiff No.1 himself has admits Ex.P.17 and Ex.D.9 and the document which is registered duly, then under such circumstance, it can be safely hold that the transaction as per Ex.P.1 is genuine transaction. Hence issue No.4 is held in the 'affirmative'.
18. Issue No.5:- Plaintiff has filed suit for declaration and possession and he has valued the suit U/Sec.38 of Karnataka Court Fees & Suits Valuation Act. Ex.P.1 is suit document, which is for sale consideration of Rs.25,00,000/- and plaintiff has paid sufficient court fee under the provisions of Section 38 of 28 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 Karnataka Court Fees & Suits Valuation Act. Hence it is held in the 'affirmative'
19. This suit O.S.No.8522/2011 is filed by the plaintiffs against the defendant for the relief of cancellation of sale deed dated 13.04.2009 in respect of schedule property, for vacant possession of schedule D property and damages of Rs.16,000/- per month from the date of suit till delivery of possession and for costs and such other reliefs.
20. The brief facts of the plaintiffs' case is that, plaintiffs are owners of the suit schedule property. The first plaintiff came in contact with defendant in the end of year 2000. The defendant represented that he is friend of one Mr. G. Vidyaraj, then resident of Basavanagudi and said Vidyaraj was the direct descendent of the Kings of Vijayanagar Empire and stated that said Vidyaraj inherited as a legal heir of the Kings of Vijayanagar, the Gems, which are called as Raja Rathna, Neelangali and Rani Rathna. Further it is averred in the plaint that, defendant further represented that said Vidyaraj along with the said three Gems, 29 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 has also other gems, rubies, which are fabulously valuable. The defendant also informed the first plaintiff that said Vidyaraj had authorised the defendant to sell the rubies to third parties and he induced the plaintiffs to purchase the rubies. Further it is also pleaded that, defendant in order to convince the first plaintiff, gave photocopy of several documents confirming that the said Vidyaraj was the direct descendent of Vijayanagar Kings and he owned several rubies of the said empire. When the defendant persuaded the first plaintiff to purchase the rubies, he was constructing residential house and he is having financial constraint and expressed his inability. For that, defendant represented that he will pay the value of the said gems for the present he will arrange finance from other sources. In the middle of 2005, the defendant purported to sold a large Ruby, red in colour to the first plaintiff and he further stated that defendant purchased the said Gem by paying the value to the said Vidyaraj and it is also pleaded that said Ruby was handed over to the plaintiff and it was warned to him unless and until he attains age of 61 years, he should not deal with the said Ruby or he should not the sell the 30 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 same and given it in a closed box and same was kept in the pooja room of the plaintiff No.1. Towards the consideration of the said Ruby, he has executed the sale deed dated 13.04.2009 in favour of defendant and no consideration was passed on to the plaintiffs. On 20.03.2011 plaintiff No.1 opened the box, and then he revealed that it is granite weighing 17 kgs, which is worthless. Defendant by playing fraud, misrepresentation, coercion has got executed the sale deed in favour of defendant. After coming to know the conspiracy and cheating by the defendant, he lodged police complaint, case is registered against the defendant and charge sheet is also filed and said case is pending for consideration. The sale deed dated 13.04.2009 executed by the plaintiffs in favour of defendant is not valid, no consideration is passed on to them. Hence they seek for cancellation of the sale deed.
21. After service of summons, the defendant has appeared before Court and filed detailed written statement denying all the plaint averments and has taken specific contention 31 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 that the alleged Ruby transaction is a story created by plaintiff No.1 and plaintiff No.1 executed the sale deed after receipt of the sale consideration amount and apart from that he has also due amount and when the cheque issued by plaintiff No.1 is dishonoured and legal notice was issued for the offence U/Sec.138 of N.I. Act, only as counterblast, the plaintiffs have come before the Court with a false and created story to escape the liability. When the sale deed is executed by the plaintiffs after the receipt of consideration amount, the relief cannot be granted.
The defendant further contended that the defendant had been involved with the plaintiff No.1 in various financial dealings in as much as he was liable to pay substantial amounts to the defendant and hence plaintiff No.1 had issued several cheques and one of the cheque was dishonoured, the defendant confronted the plaintiff No.1 to repay the amount. Plaintiff No.1 summoned the defendant to St. Marks Hotel on Residency Road with all the documents so that the matter could be settled amicably. At the hotel, there was heated exchange between 32 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 plaintiff No.1 and the defendant. Thereafter the cheque was presented and it was dishonoured and Section 138 of N.I. Act notice was issued. On receipt of Section 138 notice, plaintiff No.1 filed false criminal complaint making the ruby theory and seeks for dismissal of the suit.
22. On the basis of the above pleadings, the following issues were framed:-
1. Whether the plaintiffs prove that the defendant offered to sell him a large red ruby and received Rs.1.5 crores and ultimately it was found to be a ordinary granite weighing 17 Kg and thereby cheated the plaintiffs?
2. Whether the plaintiffs prove that towards money for the ruby, the defendant coerced and got executed sale deed in respect of 'A' to 'D' schedule properties without paying any consideration amount?
3. Whether the plaintiffs prove cause of action?
4. Whether the defendant proves that the sale transaction was a genuine transaction?
5. Whether the court fee paid is sufficient?33 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014
6. What order or decree?
23. My answer on the above issues are :-
Issue No.1: In the negative Issue No.2: In the negative Issue No.3: In the negative Issue No.4: In the affirmative Issue No.5: In the affirmative Issue No.6: As per final order, for the following:-
REASONS
24. Issue Nos.1 and 2:- The definite case of the plaintiffs is that, sale deed, i.e., Ex.P.4 is got executed by defendant in his favour by misrepresentation, undue influence and coercion. When they plead misrepresentation, coercion and undue influence they have to plead and prove the elements of misrepresentation, undue influence and coercion. Under Section 15 of Indian Contract Act, coercion is defined. Plaintiffs have not proved nor pleaded the elements of coercion, as defined under Section 15 of the Contract Act. The plaintiffs have also pleaded misrepresentation. Section 18 of the Contract Act defines what is 34 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 misrepresentation. Here also, plaintiffs have not pleaded the ingredients of misrepresentation and not proved the ingredients of misrepresentation in the pleading and Section 16 is defined what is undue influence. Plaintiffs have just mentioned undue influence, have not pleaded nor proved the ingredients of undue influence.
25. The definite case of the plaintiffs is that, no consideration is passed on to them for execution of Ex.P.4, which is sale deed dated 13.04.2009. Plaintiff No.1 has sold flat No.312 under the registered sale deed dated 13.04.2009, which is marked at Ex.P.4. In the said Ex.P.4 it is clearly mentioned that plaintiff No.1 who was the owner of the schedule property has received entire sale consideration as on the date of sale agreement dated 19.12.2017. In Ex.P.4 it is categorically mentioned that:
"The purchaser had paid the entire sale consideration to the sellers under an agreement to sell dated 19.12.2007. Thus the vendors 35 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 acknowledge having received the entire sale consideration."
26. The plaintiffs never disputed nor denied the said agreement and it is very important to note that as per Ex.D.8 possession of flat No.312 i.e., suit schedule property is delivered to the defendant. The same is confirmed by the defendant. Ex.D.8 is in the letterhead of plaintiff No.1. In Ex.D.8 also sale deed dated 13.04.2009 is referred. When the plaintiffs does not dispute the agreement dated 19.12.2007 and Ex.D.8 in the pleading, plaintiffs are estopped from contending or disputing non-receipt of sale consideration amount as per Ex.P.4.
27. Now coming to the point of receiving the ruby by plaintiff No.1, let us examine the background of plaintiff No.1. Admittedly plaintiff No.1 is not an ordinary person, who hails from a respectable family, born rich and is director of many institutions and his family is known in social service and having a very good family background as well as educational background. He has pleaded Vidyaraj and defendant have sold him a ruby weighing 17 kgs. When the person having so much educational qualification 36 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 and background, it cannot be believed that he purchased a ruby weighing 17 kgs without at least seeing the same and the condition of defendant is that it should not be sold or dealt until the plaintiff No.1 reaches the age of 61 years. But it does not mean that he should not see the same. Plaintiff No.1 has lodged police complaint on 27.04.2011 and in the complaint he has mentioned that he has notarized sale agreement on stamp paper dated 24.09.2001, declaration/affidavit dated 09.08.2000, the Illustrative Weekly of India paper cutting article news papers about this ruby and other rubies. But during the course of trial he has not produced all these records. At least he should have produced the photograph of the disputed ruby. He has not mentioned on which date he received the ruby and he has not mentioned why he has not seen the ruby when it was given to him. Plaintiff No.1 who is examined as P.W.1 in his cross- examination has admitted that "I have got the authorization referred in para 4 of the plaint". When such being the case, there is no explanation forthcoming from the plaintiff No.1 that why he has not produced single material with respect to ruby 37 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 transaction except his oral testimony. If he has notarized copy of sale agreement, declaration and other documents, which are mentioned in his police complaint, definitely he should have produced the same and he has not taken pain to produce at least the photograph of the alleged granite, i.e., ruby and he has stated that he has purchased the said ruby for crores worth by paying the same. When as per his cause of action column, he has opened the box on 20.03.2011, thereafter he came to know that he has been cheated by the defendant and deceased Vidyaraj, then in the ordinary course definitely he should have lodged the complaint immediately after opening of box. But he has not done so. He has lodged the complaint on 27.04.2011. The main relief sought by him for cancellation of sale deed dated 13.04.2009, i.e., Ex.P.4 with respect to suit schedule property on the ground that no consideration is passed. When it is proved before Court that consideration is passed on to him which is not disputed by the plaintiff No.1, plaintiffs are not entitled for the cancellation relief and the suit is filed by the plaintiffs only after plaintiff No.1 received notice of cheque bounce issued by defendant as per 38 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 Ex.D.171 dated 26.10.2011, Ex.D.174 dated 26.10.2011, and Ex.D.194 dated 07.03.2011, shows that suit of the plaintiffs is only as a counter blast to the Section 138 of N.I. Act case filed by defendant.
28. The specific case of the plaintiffs is that, defendant on the guise of selling ruby on behalf of Vidyaraj, has sold a granite weighing 17 kgs. It is to be noted that a man having so much of worldly knowledge and alleged to have paid amount in crores, has received the ruby without seeing the same, cannot be believed at all. His further case is that, defendant advised as per the say of Vidyaraj, that until and unless plaintiff No.1 reaches the age of 61 years, he should not deal with or sell the ruby. But it is not the case of the plaintiff No.1 that he has not seen the ruby at the time of receiving the same. Nowhere in his pleading stated that he has not seen the ruby at the time of receiving the same and even if he say so, that cannot be believed, because that it was not the condition that he should not see and only purchase. The age of the plaintiff No.1 becomes very much relevant. He 39 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 has not stated in his pleading that what was his date of birth and when he attained the age of 61 years. In his complaint lodged to the police on 27.04.2011, which is marked as Ex.P.5, he has stated that he has opened the box on an auspicious day after reaching 61 years. But he has not mentioned the day on which he opened the box and when he reached 61 years. He has lodged police complaint on 27.04.2011 and in the complaint he has not stated that he has opened the box on 20.03.2011. Even if it is admitted for a moment, there is time gap in lodging the complaint and immediately after receiving the notice issued by defendant herein for bouncing of cheques, he has lodged police complaint. It is very much relevant to note that complaint is lodged after the death of Vidyaraj. It is come in the evidence that he is familiar with Vidyaraj. Plaintiff No.1 has stated that in the middle of 2005 alleged ruby was delivered to him and he opened the box on 20.03.2011. He has not pleaded what was the age when he received the ruby and what was the age when he opened the box and he has categorically pleaded that he kept the alleged ruby in the pooja room. But he has not examined any of his family 40 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 members regarding the same. When a thing weighing about 17 kgs kept in the pooja room, definitely family members should have observed it and might have enquired plaintiff No.1 about the same and even otherwise he definitely should have disclosed, if he has purchased ruby worth about crores of rupees. When he has not examined any of his family members and when he fails to produce at least a photograph of the alleged ruby and when he miserably fails to produced documents which he has mentioned in his police complaint, i.e., notarized sale agreement, declaration and all these things in order to support his contention, except oral testimony is not sufficient to believe the version of plaintiff No.1. When the plaintiffs fails to prove the ruby transaction and in view of the clear cut documentary evidence, it can be safely hold that plaintiffs have not proved that defendant coerced and got executed the sale deed in respect of 'A" to 'D' schedule properties. Hence issue Nos.1 and 2 are held in 'negative'.
29. Issue No.3:- Plaintiffs in their plaint have pleaded that cause of action has arose on 13.04.2009 when the sale deed 41 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 was executed and on 20.03.2011. 13.04.2009 is the date of execution of sale deed, i.e., Ex.P.4 and 20.03.2011 is the date when plaintiff No.1 alleged to have opened the box. But it is not substantiated by the plaintiff No.1 that he has opened the box on 20.03.2011, because in the police complaint he has stated that he has opened the box on an auspicious day and only in the suit, i.e., in the cause of action column he has stated that he has opened the box on 20.03.2011. In this regard it is to be noted, what prevented the plaintiff No.1, suppose he has opened the box on 20.03.2011, to mention the same in his police complaint lodged as per Ex.P.5. But in the police complaint he has baldly stated that on the auspicious day he has opened the said box. He has not examined any of his family members to substantiate this and suit is filed by the plaintiffs for cancellation of the sale deed dated 13.04.2009, which is proved as per Ex.P.4. When he seeks for declaration, his suit should be filed within 3 years as per Article 59 of Limitation Act. In the absence of any evidence that he has opened the box on 20.03.2011 and when he has miserably failed that defendant has on the guise of selling ruby sold granite 42 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 weighing 17 kgs, it can be safely held that plaintiff has failed to prove cause of action. Hence this issue is held in the 'negative'.
30. Issue No.4:- Admittedly, plaintiffs are disputing receipt of sale consideration amount of Ex.P.4, which is duly registered. In Ex.P.4 also they have mentioned that they have received sale consideration amount under the agreement dated 19.12.2017. Ex.P.4 coupled with Ex.D.8 and agreement dated 19.12.2017, it is clearly shows that sale consideration is passed on to the plaintiffs. When sale consideration is passed on to plaintiffs, it can be safely hold that transaction is genuine one. Hence issue No.4 is held in the 'affirmative'.
31. Issue No.5:- Plaintiffs have filed suit for declaration and possession and they have valued the suit U/Sec.38 of Karnataka Court Fees & Suits Valuation Act. Ex.P.4 is suit document, which is for sale consideration of Rs.26,00,000/- and plaintiffs have paid sufficient court fee under the provisions of Section 38 of Karnataka Court Fees & Suits Valuation Act. Hence this issue is held in the 'affirmative'.
43 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014
32. This suit O.S.No.8524/2011 is filed by the plaintiffs against the defendants for the relief of cancellation of sale deed dated 13.04.2009 in respect of schedule property, for vacant possession of schedule D property and damages of Rs.16,000/- per month from the date of suit till delivery of possession and for costs and such other reliefs.
33. The brief facts of the plaintiffs' case is that, plaintiffs are owner of the suit schedule property. The first plaintiff came in contact with second defendant in the end of year 2000. Second defendant represented that he is friend of one Mr. G. Vidyaraj, then resident of Basavanagudi and said Vidyaraj was the direct descendent of the Kings of Vijayanagar Empire and stated that said Vidyaraj inherited as a legal heir of the Kings of Vijayanagar, the Gems, which are called as Raja Rathna, Neelangali and Rani Rathna. Further it is averred in the plaint that, second defendant further represented that said Vidyaraj along with the said three Gems, has also other gems, rubies, which are fabulously valuable. The second defendant also informed the first plaintiff that said 44 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 Vidyaraj had authorised the second defendant to sell the rubies to third parties and he induced the plaintiffs to purchase the rubies. Further it is also pleaded that, second defendant in order to convince the first plaintiff, gave photocopy of several documents confirming that the said Vidyaraj was the direct descendent of Vijayanagar Kings and he owned several rubies of the said empire. When the second defendant persuaded the first plaintiff to purchase the rubies, he was constructing residential house and he is having financial constraint and expressed his inability. For that, second defendant represented that he will pay the value of the said gems for the present he will arrange finance from other sources. In the middle of 2005, the second defendant purported to sold a large Ruby, red in colour to the first plaintiff and he further stated that second defendant purchased the said Gem by paying the value to the said Vidyaraj and it is also pleaded that said Ruby was handed over to the plaintiff and it was warned to him unless and until he attains age of 61 years, he should not deal with the said Ruby or he should not the sell the same and given it in a closed box and same was kept in the pooja 45 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 room of the plaintiff No.1. Towards the consideration of the said Ruby, he has executed the sale deed dated 13.04.2009 in favour of first defendant and no consideration was passed on to the plaintiffs. On 20.03.2011 plaintiff No.1 opened the box, and then he revealed that it is granite weighing 17 kgs, which is worthless. Defendant No.2 by playing fraud, misrepresentation, coercion has got executed the sale deed in favour of first defendant. After coming to know the conspiracy and cheating by the defendants, he lodged police complaint, case is registered against the defendants and charge sheet is also filed and said case is pending for consideration. The sale deed dated 13.04.2009 executed by the plaintiffs in favour of defendant No.1 is not valid, no consideration is passed on to them. Hence they seek for cancellation of the sale deed.
34. After service of summons, the defendants have appeared before Court and filed detailed written statement denying all the plaint averments and have taken specific contention that the alleged Ruby transaction is a story created by 46 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 plaintiff No.1 and plaintiff No.1 executed the sale deed after receipt of the sale consideration amount and apart from that, he has also due amount and when the cheque issued by plaintiff No.1 is dishonoured and legal notice was issued for the offence U/Sec.138 of N.I. Act, only as counterblast, the plaintiffs have come before the Court with a false and created story to escape the liability. When the sale deed executed by the plaintiffs after the receipt of consideration amount, the relief cannot be granted and seeks for dismissal of the suit.
35. On the basis of the above pleadings, the following issues were framed:-
1. Whether the plaintiffs prove that the 2nd defendant offered to sell him a large red ruby and received Rs.1.5 crores and ultimately it was found to be a ordinary granite weighing 17 Kg and thereby cheated the plaintiffs?
2. Whether the plaintiffs prove that towards money for the ruby, the 2nd defendant coerced him to execute sale deed in favour of the 1st defendant over 'D' schedule property without paying any consideration amount?47 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014
3. Whether the plaintiffs prove cause of action?
4. Whether the defendants prove that the sale transaction was a genuine transaction?
5. Whether the court fee paid is sufficient?
6. What order or decree?
36. My answer on the above issues are :-
Issue No.1: In the negative Issue No.2: In the negative Issue No.3: In the negative Issue No.4: In the affirmative Issue No.5: In the affirmative Issue No.6: As per final order, for the following:-
REASONS
37. Issue Nos.1 and 2:- These two issues are taken together for the convenience.
38. The definite case of the plaintiffs is that, sale deed, i.e., Ex.P.3 is got executed by defendant No.2 in favour of defendant No.1 by misrepresentation, undue influence and 48 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 coercion. When they plead misrepresentation, coercion and undue influence they have to plead and prove the elements of misrepresentation, undue influence and coercion. Under Section 15 of Indian Contract Act, coercion is defined. Plaintiffs have not proved nor pleaded the elements of coercion, as defined under Section 15 of the Contract Act. The plaintiffs have also pleaded misrepresentation. Section 18 of the Contract Act defines what is misrepresentation. Here also, plaintiffs have not pleaded the ingredients of misrepresentation and not proved the ingredients of misrepresentation in the pleading and Section 16 is defined what is undue influence. Plaintiffs have just mentioned undue influence, have not pleaded nor proved the ingredients of undue influence.
39. The definite case of the plaintiffs is that, no consideration is passed on to them for execution of Ex.P.3, which is sale deed dated 13.04.2009. Admittedly, Ex.P.3 came into existence in pursuance of the agreement dated 19.12.2005. Nowhere in his pleadings or in his evidence plaintiff No.1 has not 49 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 disputed the sale agreement. He never stated that he has not executed the agreement. It is very important to note that in the sale deed Ex.P.3 it is mentioned that:
"The purchaser had paid the entire sale consideration to the sellers under an agreement to sell dated 19.12.05. Thus the vendors acknowledge having received the entire sale consideration."
So, Ex.P.3 came into picture in pursuance of the agreement and as on the date of agreement itself, plaintiff No.1 has received entire sale consideration amount. But in the pleading, he never whispered a single sentence about the same. It is very much interesting to note that plaintiff No.1 has not disputed any of the documents, except stating that the documents had came into picture only for the ruby transaction.
40. Now coming to the point of receiving the ruby by plaintiff No.1, let us examine the background of plaintiff No.1. Admittedly plaintiff No.1 is not an ordinary person, who hails from a respectable family, born rich and is director of many institutions 50 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 and his family is known in social service and having a very good family background as well as educational background. He has pleaded Vidyaraj and defendant No.2 have sold him a ruby weighing 17 kgs. When the person having so much educational qualification and background, it cannot be believed that he purchased a ruby weighing 17 kgs without at least seeing the same and the condition of defendant No.2 is that it should not be sold or dealt until the plaintiff No.1 reaches the age of 61 years. But it does not mean that he should not see the same. Plaintiff No.1 has lodged police complaint on 27.04.2011 and in the complaint he has mentioned that he has notarized sale agreement on stamp paper dated 24.09.2001, declaration/affidavit dated 09.08.2000, the Illustrative Weekly of India paper cutting article news papers about this ruby and other rubies. But during the course of trial he has not produced all these records. At least he should have produced the photograph of the disputed ruby. He has not mentioned on which date he received the ruby and he has not mentioned why he has not seen the ruby when it was given to him. Plaintiff No.1 who is examined as P.W.1 in his 51 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 cross-examination has admitted that "I have got the authorization referred in para 4 of the plaint". When such being the case, there is no explanation forthcoming from the plaintiff No.1 that why he has not produced single material with respect to ruby transaction except his oral testimony. If he has notarized copy of sale agreement, declaration and other documents, which are mentioned in his police complaint, definitely he should have produced the same and he has not taken pain to produce at least the photograph of the alleged granite, i.e., ruby and he has stated that he has purchased the said ruby for crores worth by paying the same. When as per his cause of action column, he has opened the box on 20.03.2011, thereafter he came to know that he has been cheated by the defendants and deceased Vidyaraj, then in the ordinary course definitely he should have lodged the complaint immediately after opening of box. But he has not done so. He has lodged the complaint on 27.04.2011. The main relief sought by him for cancellation of sale deed dated 13.04.2009, i.e., Ex.P.3 with respect to suit schedule property on the ground that no consideration is passed. When it is proved before Court 52 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 that consideration is passed on to him under the agreement, which is not disputed by the plaintiff No.1, plaintiffs are not entitled for the cancellation relief and the suit is filed by the plaintiffs only after plaintiff No.1 received notice of cheque bounce issued by defendant No.2 as per Ex.D.171 dated 26.10.2011, Ex.D.174 dated 26.10.2011, and Ex.D.194 dated 07.03.2011, shows that suit of the plaintiffs is only as a counter blast to the Section 138 of N.I. Act case filed by defendant No.2.
41. Plaintiff No.1 has executed the sale deed with respect to suit schedule property dated 13.04.2009, which is marked as Ex.P.3. wherein in Ex.P.3 sale deed it is mentioned that entire sale consideration amount is paid under the agreement dated 19.12.2005 and when he does not dispute the said agreement dated 19.12.2005, then plaintiff is estopped from denying that he has not received the sale consideration to the sale deed dated 13.04.2009 as per Ex.P.3.
42. When the plaintiffs cannot dispute the agreement, when they are estopped from diverting from Ex.P.3 and when 53 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 they have failed to prove the ruby transaction, then it can be safely hold that plaintiffs have failed to prove issue Nos.1 and 2 and hence they are answered in 'negative'.
43. Issue No.3:- Plaintiffs in their plaint have pleaded that cause of action has arose on 13.04.2009 when the sale deed was executed and on 20.03.2011. 13.04.2009 is the date of execution of sale deed, i.e., Ex.P.3 and 20.03.2011 is the date when plaintiff No.1 alleged to have opened the box. But it is not substantiated by the plaintiff No.1 that he has opened the box on 20.03.2011, because in the police complaint he has stated that he has opened the box on an auspicious day and only in the suit, i.e., in the cause of action column he has stated that he has opened the box on 20.03.2011. In this regard it is to be noted, what prevented the plaintiff No.1, suppose he has opened the box on 20.03.2011, to mention the same in his police complaint lodged as per Ex.P.5. But in the police complaint he has baldly stated that on the auspicious day he has opened the said box. He has not examined any of his family members to substantiate this 54 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 and suit is filed by the plaintiffs for cancellation of the sale deed dated 13.04.2009, which is proved as per Ex.P.3. When he seeks for declaration, his suit should be filed within 3 years as per Article 59 of Limitation Act. In the absence of any evidence that he has opened the box on 20.03.2011 and when he has miserably failed that defendant No.2 has on the guise of selling ruby sold granite weighing 17 kgs, it can be safely held that plaintiff has failed to prove cause of action. Hence this issue is held in the 'negative'.
44. Issue No.4:- It is undisputed fact that plaintiff No.1 was the owner of the suit schedule property and he has sold the same to defendant No.1 as per Ex.P.3 sale deed dated 13.04.2009. The contention of the plaintiff No.1 is that, he has not received any sale consideration amount under Ex.P.3. But in the pleading he has not disputed the agreement entered into by plaintiff No.1 and defendant No.1. Plaintiff not at all whispered a single word about agreement in his pleadings and also admits execution of every document and cheque produced in these 55 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 cases, but his only explanation is that, same was executed or issued in connection with ruby. But in the present suit, he has not at all stated nor disputed that he has not executed agreement. So when plaintiff No.1 himself has admits the sale deed-Ex.P.3, which is registered duly, then under such circumstance, it can be safely hold that the transaction as per Ex.P.3 is genuine transaction. Hence issue No.4 is held in the 'affirmative'.
45. Issue No.5:- Plaintiff has filed suit for declaration and possession and he has valued the suit U/Sec.38 of Karnataka Court Fees & Suits Valuation Act. Ex.P.3 is suit document, which is for sale consideration of Rs.25,00,000/- and plaintiff has paid sufficient court fee under the provisions of Section 38 of Karnataka Court Fees & Suits Valuation Act. Hence it is held in the 'affirmative'.
46. This suit O.S.No.2600/2012 is filed by the plaintiffs against the defendants for the relief of cancellation of sale deed dated 13.04.2009 executed by plaintiffs in favour of 56 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 first defendant in respect of schedule property, for vacant possession of schedule D property and for costs and such other reliefs.
47. The brief facts of the plaintiffs' case is that, plaintiffs are owner of the suit schedule property. The first plaintiff came in contact with second defendant in the end of year 2000. Second defendant represented that he is friend of one Mr. G. Vidyaraj, then resident of Basavanagudi and said Vidyaraj was the direct descendent of the Kings of Vijayanagar Empire and stated that said Vidyaraj inherited as a legal heir of the Kings of Vijayanagar, the Gems, which are called as Raja Rathna, Neelangali and Rani Rathna. Further it is averred in the plaint that, second defendant further represented that said Vidyaraj along with the said three Gems, has also other gems, rubies, which are fabulously valuable. The second defendant also informed the first plaintiff that said Vidyaraj had authorised the second defendant to sell the rubies to third parties and he induced the plaintiffs to purchase the rubies. Further it is also pleaded that, second defendant in order to 57 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 convince the first plaintiff, gave photocopy of several documents confirming that the said Vidyaraj was the direct descendent of Vijayanagar Kings and he owned several rubies of the said empire. When the second defendant persuaded the first plaintiff to purchase the rubies, he was constructing residential house and he is having financial constraint and expressed his inability. For that, second defendant represented that he will pay the value of the said gems for the present he will arrange finance from other sources. In the middle of 2005, the second defendant purported to sold a large Ruby, red in colour to the first plaintiff and he further stated that second defendant purchased the said Gem by paying the value to the said Vidyaraj and it is also pleaded that said Ruby was handed over to the plaintiff and it was warned to him unless and until he attains age of 61 years, he should not deal with the said Ruby or he should not the sell the same and given it in a closed box and same was kept in the pooja room of the plaintiff No.1. Towards the consideration of the said Ruby, he has executed the sale deed dated 13.04.2009 in favour of first defendant and no consideration was passed on to the plaintiffs. 58 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 On 20.03.2011 plaintiff No.1 opened the box, and then he revealed that it is granite weighing 17 kgs, which is worthless. Defendant No.2 by playing fraud, misrepresentation, coercion has got executed the sale deed in favour of first defendant. After coming to know the conspiracy and cheating by the defendants, he lodged police complaint, case is registered against the defendants and charge sheet is also filed and said case is pending for consideration. The sale deed dated 13.04.2009 executed by the plaintiffs in favour of defendant No.1 is not valid, no consideration is passed on to them. Hence they seek for cancellation of the sale deed.
48. After service of summons, the defendants have appeared before Court and filed detailed written statement denying all the plaint averments and have taken specific contention that the alleged Ruby transaction is a story created by plaintiff No.1 and plaintiff No.1 executed the sale deed after receipt of the sale consideration amount and apart from that he has also due amount and when the cheque issued by plaintiff 59 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 No.1 is dishonoured and legal notice was issued for the offence U/Sec.138 of N.I. Act, only as counterblast, the plaintiffs have come before the Court with a false and created story to escape the liability. When the sale deed executed by the plaintiffs after the receipt of consideration amount, the relief cannot be granted and seeks for dismissal of the suit.
49. On the basis of the above pleadings, the following issues were framed:-
1. Whether the plaintiffs prove that the 2nd defendant offered to sell him a large red ruby and received Rs.1.5 crores and ultimately it was found to be a ordinary granite weighing 17 Kg and thereby cheated the plaintiffs?
2. Whether the plaintiffs prove that towards money for the ruby, the 2nd defendant got executed sale deed in respect of 'B', 'C' and 'D' properties without paying any consideration amount?
3. Whether the plaintiffs prove cause of action?
4. Whether the defendant No.2 proves that the sale transaction was a genuine transaction?
5. Whether the court fee paid is sufficient?60 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014
6. What order or decree?
50. My answer on the above issues are :-
Issue No.1: In the negative Issue No.2: In the negative Issue No.3: In the negative Issue No.4: In the affirmative Issue No.5: In the affirmative Issue No.6: As per final order, for the following:-
REASONS
51. Issue Nos.1 and 2:- These two issues are taken together for the convenience. The definite case of the plaintiffs is that, sale deed, i.e., Ex.P.2 is got executed by defendant No.2 in favour of defendant No.1 by misrepresentation, undue influence and coercion. When they plead misrepresentation, coercion and undue influence they have to plead and prove the elements of misrepresentation, undue influence and coercion. Under Section 15 of Indian Contract Act, coercion is defined. Plaintiffs have not proved nor pleaded the elements of coercion, as defined under Section 15 of the Contract Act. The plaintiffs have also pleaded 61 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 misrepresentation. Section 18 of the Contract Act defines what is misrepresentation. Here also, plaintiffs have not pleaded the ingredients of misrepresentation and not proved the ingredients of misrepresentation in the pleading and Section 16 is defined what is undue influence. Plaintiffs have just mentioned undue influence, have not pleaded nor proved the ingredients of undue influence.
52. The definite case of the plaintiffs is that, no consideration is passed on to them for execution of Ex.P.2, which is sale deed dated 13.04.2009. Admittedly, Ex.P.2 came into existence in pursuance of the agreement dated 09.03.2009. Nowhere in his pleadings or in his evidence plaintiff has No.1 has not disputed execution of the said agreement. He never stated that he has not executed the agreement. It is very important to note that in Ex.P.2 it is stated that:
"The purchaser had paid the entire sale consideration to the vendors in the following manner: 62 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014
(i) Rs.8,27,500/-(Eight Lakh Twenty Seven Thousand Five hundred Rupees only) under an agreement to sell dated 09.03.09.
(ii) Rs.11,72,500/- (Eleven Lakhs Seventy Two Thousand Five Hundred only) under a demand draft bearing No.083983 dated 9.4.09 drawn from State Bank of Hyderabad, Vijayanagar Branch, Bengaluru
(iii) Thus the vendors having received the entire consideration in the manner stated above have hereby acknowledged the receipt of the full consideration towards the sale of the Schedule D Flat along with the undivided interest described in the Schedule C hereunder."
So, Ex.P.2 came into picture in pursuance of the agreement to sell and plaintiff No.1 has received entire sale consideration amount. But in the pleading, he never whispered a single sentence about execution of agreement. It is very much interesting to note that plaintiff No.1 has not disputed any of the documents, except stating that the documents had came into picture only for the ruby transaction.
63 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014
53. Now coming to the point of receiving the ruby by plaintiff No.1, let us examine the background of plaintiff No.1. Admittedly plaintiff No.1 is not an ordinary person, who hails from a respectable family, born rich and is director of many institutions and his family is known in social service and having a very good family background as well as educational background. He has pleaded Vidyaraj and defendant No.2 have sold him a ruby weighing 17 kgs. When the person having so much educational qualification and background, it cannot be believed that he purchased a ruby weighing 17 kgs without at least seeing the same and the condition of defendant No.2 is that it should not be sold or dealt until the plaintiff No.1 reaches the age of 61 years. But it does not mean that he should not see the same. Plaintiff No.1 has lodged police complaint on 27.04.2011 and in the complaint he has mentioned that he has notarized sale agreement on stamp paper dated 24.09.2001, declaration/affidavit dated 09.08.2000, the Illustrative Weekly of India paper cutting article news papers about this ruby and other rubies. But during the course of trial he has not produced all these records. At least he 64 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 should have produced the photograph of the disputed ruby. He has not mentioned on which date he received the ruby and he has not mentioned why he has not seen the ruby when it was given to him. Plaintiff No.1 who is examined as P.W.1 in his cross-examination has admitted that "I have got the authorization referred in para 4 of the plaint". When such being the case, there is no explanation forthcoming from the plaintiff No.1 that why he has not produced single material with respect to ruby transaction except his oral testimony. If he has notarized copy of sale agreement, declaration and other documents, which are mentioned in his police complaint, definitely he should have produced the same and he has not taken pain to produce at least the photograph of the alleged granite, i.e., ruby and he has stated that he has purchased the said ruby for crores worth by paying the same. When as per his cause of action column, he has opened the box on 20.03.2011, thereafter he came to know that he has been cheated by the defendants and deceased Vidyaraj, then in the ordinary course definitely he should have lodged the complaint immediately after opening of box. But he has not done 65 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 so. He has lodged the complaint on 27.04.2011. The main relief sought by him for cancellation of sale deed dated 13.04.2009, i.e., Ex.P.1 with respect to suit schedule property on the ground that no consideration is passed. When it is proved before Court that consideration is passed on to him under Ex.P.17, which is not disputed by the plaintiff No.1, plaintiffs are not entitled for the cancellation relief and the suit is filed by the plaintiffs only after plaintiff No.1 received notice of cheque bounce issued by defendant No.2 as per Ex.D.171 dated 26.10.2011, Ex.D.174 dated 26.10.2011, and Ex.D.194 dated 07.03.2011, shows that suit of the plaintiffs is only as a counter blast to the Section 138 of N.I. Act case filed by defendant No.2.
54. Plaintiff No.1 himself has admitted in Ex.P.2 sale deed dated 13.04.2009, and the sale consideration amount is received by him under the agreement dated 09.03.2009 in the manner as mentioned in Ex.P.2. When he has not disputed the said agreement dated 09.03.2009, then plaintiff is estopped from denying that he has not received the sale consideration to the 66 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 sale deed dated 13.04.2009 as per Ex.P.2. When he cannot dispute the agreement, when he is estopped from diverting from Ex.P.2 and when he has failed to prove the ruby transaction, then it can be safely hold that issue Nos.1 and 2 are not proved by the plaintiffs and hence they are answered in 'negative'.
55. Issue No.3:- Plaintiffs in their plaint have pleaded that cause of action has arose on 13.04.2009 when the sale deed was executed and on 20.03.2011. 13.04.2009 is the date of execution of sale deed, i.e., Ex.P.2 and 20.03.2011 is the date when plaintiff No.1 alleged to have opened the box. But it is not substantiated by the plaintiff No.1 that he has opened the box on 20.03.2011, because in the police complaint he has stated that he has opened the box on an auspicious day and only in the suit, i.e., in the cause of action column he has stated that he has opened the box on 20.03.2011. In this regard it is to be noted, what prevented the plaintiff No.1, suppose he has opened the box on 20.03.2011, to mention the same in his police complaint lodged as per Ex.P.5. But in the police complaint he has baldly 67 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 stated that on the auspicious day he has opened the said box. He has not examined any of his family members to substantiate this and suit is filed by the plaintiffs for cancellation of the sale deed dated 13.04.2009, which is proved as per Ex.P.2. When he seeks for declaration, his suit should be filed within 3 years as per Article 59 of Limitation Act. In the absence of any evidence that he has opened the box on 20.03.2011 and when he has miserably failed that defendant No.2 has on the guise of selling ruby sold granite weighing 17 kgs, it can be safely held that plaintiff has failed to prove cause of action. Hence this issue is held in the 'negative'.
56. Issue No.4:- Plaintiff No.1 has executed the registered sale deed in favour of defendant No.1 as per Ex.P.2 dated 13.04.2009 with respect to flat No.510. Plaintiffs have not disputed Ex.D.14 the possession letter. Ex.D.14 is executed by plaintiff No.1 herein in favour of defendant No.1 in his letterhead mentioning that he has handed over the possession of suit schedule property, i.e., apartment No.510 and it is also mentioned 68 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 in that document that he has received the entire sale consideration amount of the suit schedule property and another important document which plaintiff No.1 has not disputed, i.e., Ex.D.16, which is receipt executed by plaintiff No.1 in favour of Latha Vittal Rao Katekar for having received Rs.20,00,000/- with respect to the suit schedule property under agreement dated 08.05.2006, which also bears the LTM of plaintiff No.1. No explanation is forthcoming by plaintiff No.1 in his pleading with respect to Ex.D.14 and Ex.D.16. When the plaintiff No.1 has not whispered anything about Ex.D.14 and D.16, plaintiffs are estopped from disputing that they have not received any sale consideration amount towards Ex.P.2. It is very much important to note that in this particular case, sale consideration amount of Rs.11,72,500/- is paid through a demand draft dated 09.04.2009 vide No.083983, which is admitted by plaintiff No.1 during his cross-examination. But he has explained that on the next day defendant No.1 has taken back the same. But when he has executed the receipt and he has failed to get endorsement on the same for having returned the DD and admittedly it is a DD, if it is 69 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 drawn in the name of plaintiff No.1, then certainly he should have got some endorsement from defendant No.1 for having received back the DD. Even in Ex.P.2 there is mention of DD. But plaintiff No.1 has not explained about this. When such being the case, when it is proved that sale consideration amount is paid through DD, which is evidenced in Ex.P.2 and also receipt and the Ex.D.14 the possession letter, the transaction between the defendants and the plaintiffs is genuine one. Hence issue No.4 is held in the 'affirmative'.
57. Issue No.5:- Plaintiff has filed suit for declaration and possession and he has valued the suit U/Sec.38 of Karnataka Court Fees & Suits Valuation Act. Ex.P.2 is suit document, which is for sale consideration of Rs.20,00,000/- and plaintiff has paid sufficient court fee under the provisions of Section 38 of Karnataka Court Fees & Suits Valuation Act. Hence it is held in the 'affirmative' 70 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014
58. This suit O.S.No.6716/2013 is filed by the plaintiff for recovery of Rs.52,00,000/- with interest at the rate of 12% p.a. with costs and such other relief against the defendant.
59. The brief facts of the case is that, plaintiff was a trader of ginger and agricultural produce at Shimoga and later on he shifted to Bengaluru. After coming to Bengaluru, he was working in Siva Priya Promoters Ltd., as Chief Marketing Executive to promote sales and during the year 1999 plaintiff came in contact with the defendant. Then a cordial relationship was developed and plaintiff came to know that defendant entered into joint development agreement with Divya Shree Group and he has also purchased flats in his name and his daughters' names. When the relationship between the plaintiff and defendant became very stronger, defendant sought financial help. In this regard defendant requested Rs.1,00,00,000/- as loan and plaintiff's son-in-law has arranged Rs.62,00,000/- to the defendant on 29.07.2009 and in that regard defendant executed agreement dated 29.07.2009 acknowledging the receipt of 71 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 Rs.62,00,000/-. While executing the agreement and acknowledging the receipt, defendant issued the following cheques:
Sl. Cheque Date When Amount Bank
No. No. payable
1. 030813 15.08.2009 15.08.2009 12,00,000/- Vijaya Bank
2. 030814 25.08.2009 25.08.2009 10,00,000/- Vijaya Bank
3. 030815 23.08.2009 23.08.2009 20,00,000/- Vijaya Bank
4. 030816 26.08.2009 26.08.2009 20,00,000/- Vijaya Bank
Towards the said amount, defendant has paid
Rs.10,00,000/- and he was due of Rs.52,00,000/- in favour of his son-in-law. When the defendant has not paid the amount borrowed by the son-in-law of the plaintiff, son-in-law of the plaintiff visited the defendant and there was heated exchange between the defendant and son-in-law. Later on plaintiff intervened and plaintiff repaid the amount to his son-in-law. In this regard the defendant has issued fresh cheques for Rs.52,00,000/- as under to the plaintiff:
Sl.No. Cheque No. Date Amount Bank
01 601315 21.06.10 12,00,000/- HDFC Bank
02 601314 23.07.10 20,00,000/- HDFC Bank
72 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012,
6716/2013, 8548/2013, AND 2043/2014
03 601316 26.08.10 20,00,000/- HDFC Bank
The defendant did not arrange fund to the cheques issued to the plaintiff. Then after constant pursued, the defendant again in replacing the cheques issued fresh cheques dated 30.04.2011 and 30.06.2011 for Rs.12,00,000/- and Rs.20,00,000/- and requested the plaintiff not to present the cheque dated 26.08.2010 drawn on HDFC Bank bearing No.601316 which was issued on the earlier occasion. Then when the defendant postponed payment of the amount mentioned in the cheque, at the end there was difference of opinion, then defendant asked the plaintiff to meet him in Infantry hotel in Bengaluru. Accordingly there was meeting of plaintiff and defendant on 22.02.2011 at Infantry hotel. In the said meeting the defendant threatened the plaintiff that whatever he can do to recover the amount. Accordingly, the plaintiff presented the cheque bearing No.601316 dated 26.08.2010 drawn on HDFC Bank, was returned unpaid with endorsement "account closed" on 25.02.2011. Thereafter plaintiff got issued a legal notice dated 07.03.2011. After receipt 73 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 of the said notice, the defendant has filed a false complaint before the police. Then plaintiff presented the cheques dated 30.04.2011 and 30.06.2011 for Rs.12,00,000/- and Rs.20,00,000/- and filed Section 138 of N.I. Act cases, which are pending before XIII ACMM at Bengaluru. Even after that defendant does not pay the amount. Hence he seeks for decree to recover the amount.
60. In pursuance of the summons, the defendant has appeared before Court and filed detailed written statement disputing the liability and stated that he is not liable to pay Rs.52,00,000/- and he has not borrowed the amount. Plaintiff has obtained the cheques towards ruby transaction. Further he has admitted payment of Rs.10,00,000/-, but that is also towards ruby transaction. He contended that in the ruby transaction by cheating the defendant, plaintiff has obtained several cheques from him and there is no dues as claimed by the plaintiff. Hence he seeks for dismissal of the suit.
74 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014
61. Basing upon the rival pleadings, the following issues were framed:-
1. Whether plaintiff proves that defendant is due of Rs.52,00,000/-?
2. Whether plaintiff proves that he is entitled for 12% interest from the date of suit till realisation?
3. What order or decree?
62. My answer to the above issues is as under:
Issue No.1: In the affirmative Issue No.2: In the affirmative Issue No.3: As per final order for the following:
REASONS
63. Issue Nos.1 and 2:- These two issues are taken together for convenience. It is the contention of the plaintiff that Rs.62,00,000/- was lent by Siddaraju, who is none other than the son-in-law of the plaintiff, at the instance of the plaintiff. The loan transaction is evidenced by a document dated 29.07.2009, which is marked at Ex.D.18 wherein defendant has agreed the 75 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 receipt of Rs.62,00,000/- as loan. The same is not disputed by the defendant in his written statement. In Ex.D.18 along with signature, LTM of the defendant is also forthcoming. As per Ex.D.18, defendant has issued cheque dated 15.08.2009 for Rs.12,00,000/- bearing No.030813, cheque for Rs.10,00,000/- dated 25.08.2009 bearing No.030814, cheque for Rs.20,00,000/- dated 23.08.2009 bearing No.030815 and another cheque for Rs.20,00,000/- dated 26.08.2009 bearing No.030816. As per the recital of Ex.D.18, the defendant will pay the amount as contained in the cheques on or before the date mentioned in the cheque and after paying the said amount in cash, he will recollect the cheques. It is admitted by the defendant that out of Rs.62,00,000/-, Rs.10,00,000/- is paid. But he has taken contention that Rs.10,00,000/- is paid towards the ruby transaction, which he has not proved at all. But after payment of Rs.10,00,000/- towards loan of Rs.62,00,000/- there remains Rs.52,00,000/- due. In this regard, when the defendant did not pay the loan amount to Siddaraju as per Ex.D.18, then it was the plaintiff who paid the amount to Siddaraju on behalf of the 76 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 defendant. The same is evidenced as per Ex.D.19, D.20 and D.21 the cheques, i.e., cheque dated 15.08.2009 bearing No.030813 issued in favour of Siddaraju is cancelled and the defendant has made endorsement on Ex.D.19 "issued cheque in favour of K.V. Krishnamurthy at HDFC Bank" and Ex.D.20 is cheque bearing No.030815 dated 23.08.2009 also issued by the defendant in favour of Siddaraju, which is mentioned in Ex.D.18 and it is also cancelled and defendant made endorsement that "issued cheque in favour of K.V. Krishnamurthy at HDFC Bank" and Ex.D.21 is also cheque dated 26.08.2009 bearing No.030816 also issued by the defendant in favour of Siddaraju, which is also cancelled and defendant made endorsement that "issued cheque in favour of K.V. Krishnamurthy at HDFC Bank".
64. It is specifically pleaded by the plaintiff that, after he paid the amount to his son-in-law on behalf of defendant, the defendant has issued cheques dated 21.06.2010 and 23.07.2010, which are produced by the plaintiff as per Ex.D.22 and D.23. These cheques also cancelled by the defendant and made a 77 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 specific endorsement that "issued fresh cheque drawn on Vijaya Bank". The cheques dated 21.06.2010 and 23.07.2010 are replaced by new fresh cheques dated 30.04.2011 and 30.06.2011. The cheque issued by the defendant bearing No.601316 dated 26.08.2010 is presented by the plaintiff to the bank and the same is dishonoured, which is produced at Ex.D.17. Ex.D.17 also contains the bank endorsement for having dishonoured the cheque and the cheques dated 30.06.2011 and 30.04.2011 for Rs.20,00,000/- and Rs.12,00,000/- bearing No.57680 and 57678 are also dishonoured when presented. The same have been presented by the plaintiff after the meeting held at Infantry hotel on 22.02.2011. Ex.D.17 is presented and it is dishonoured on 25.02.2011 and after that plaintiff got issued legal notice dated 07.03.2011 for the offence U/Sec.138 of N.I. Act, for which the defendant has replied and also lodged police complaint. The only explanation forthcoming from the defendant is that, the said cheques are issued in connection with the ruby transaction, which is already held in negative by this Court in O.S.No.8313/2011. When the plaintiff is able to prove issuance of cheques through 78 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 valid documents, the defendant has not proved that he has not borrowed the amount and there is clear cut documents executed by him in favour of Siddaraju, which evidenced that he has received amount from Siddaraju and after that, the documents shows that same is repaid by the plaintiff to his son-in-law and the cheques issued under agreement dated 29.07.2009 are cancelled by making necessary endorsement that he has issued cheques in favour of plaintiff shows that loan availed by the defendant from Siddaraju is repaid by the plaintiff on behalf of the defendant. When such being the case, defendant is liable to pay the suit claim. When the defendant has used the money of the plaintiff, certainly he has to pay interest, because, if the plaintiff was having money, then he should have invested the money in business or kept in the bank, then he should have earned profit. Hence defendant has made use of the money of the plaintiff and is liable to pay the interest at 12% p.a. from the date of suit. Hence issue Nos.1 and 2 are held in the 'affirmative'.
79 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014
65. This suit O.S.No.2043/2014 is filed by the plaintiff for the recovery of Rs.66,00,000/- with interest at 15% p.a. from the date of suit till realisation
66. The brief facts of the plaintiff's case is that, he is a businessman doing ginger and other agricultural produce business and registered in APMC, Sagar. Later on he shifted to Bengaluru in the year1998-99 and he was working in Sivapriya Township. Then he came in contact with the defendant. At that time, defendant was proposing to establish a hotel and he was in search of land in and around Bengaluru. Over a period of time the plaintiff and defendant have developed good friendship. After that defendant who came to know the financial capacity of the plaintiff, has sought loan for his personal use and considering the friendship, plaintiff has paid Rs.66,00,000/- to the defendant under agreement dated 24.11.2008 and in the said agreement the defendant has undertaken to repay the amount on or before 05.01.2009 and has issued two post-dated cheques dated 26.12.2008 for Rs.42,00,000/- and dated 05.01.2009 for 80 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 Rs.24,00,000/- bearing No.402348 and 478844 respectively drawn on HDFC Bank and it was agreed by the defendant that he will pay cash and receive back the cheques. Suppose if he fails to pay cash, then plaintiff is at liberty to present the cheques for encashment. There afterwards the defendant failed to repay the amount and again to renew the transaction, he has issued two cheques dated 26.07.2009 bearing No.030801 and 030802 for Rs.42,00,000/- and Rs.24,00,000/- dawn of Vijaya Bank, with the same condition the plaintiff received the cheques. But despite, the defendant failed to repay the amount mentioned in the cheques and again the defendant by canceling the cheques again issued fresh cheques dated 31.03.2010 for Rs.42,00,000/- and Rs.24,00,000/- drawn on Vijaya Bank bearing No.057630 and 057631 to renew the transaction. Then also, the defendant did not repay the amount mentioned in the cheques and then after canceling the above cheques again he issued another two cheques dated 31.03.2011 and 30.04.2011 bearing No.057674 and 057675 for Rs.24,00,000/- and Rs.24,00,000/- drawn on Vijaya Bank respectively, to renew the transaction. Even after 81 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 sufficient time was granted to the defendant, when he did not pay the money and when the plaintiff was in badly need of money, then there was a meeting at Infantry hotel on 22.02.2011 and in the said meeting there was heated exchange between the plaintiff and defendant and defendant declared that he will not repay the amount and if possible the plaintiff could do whatever he could do to recover the amount. After that, plaintiff presented the cheques to the bank and the same was dishonoured for "insufficient funds"
and after issuing legal notice dated 26.10.2011 and he filed case U/Sec.138 of N.I. Act. The defendant is due Rs.66,00,000/- and same is to be recovered. Hence he seeks for decree of the suit.
67. Per contra, defendant who appeared before Court filed written statement contending that plaintiff along with Vidyaraj on the guise of selling valuable ruby, he received the cheques from the plaintiff and the same has been misused by the plaintiff to recover the amount and it is his definite contention that he has not received any amount from the plaintiff as loan nor 82 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 he has issued the cheques towards discharge of the debt and hence he seeks for dismissal of the suit.
68. On the basis of the pleadings, the following issues were framed:
1. Whether the plaintiff proves that he had advanced Rs.66 lakhs to the defendant in terms of agreement dt:24.11.2008 and defendant had issued two cheques for Rs.42 lakhs dt.26.12.2008 and Rs.24 lakhs dt:05.01.2009 in order to repay the said loan amount?
2. Whether the plaintiff further proves that the defendant had replaced earlier cheques by issuing cheques for Rs.42 lakhs and Rs.24 lakhs drawn on Vijaya Bank dt:26.07.2009 and dt:26.07.2009?
3. Whether the plaintiff further proves that the defendant had replaced earlier cheques by issuing cheques for Rs.42 lakhs and Rs.24 lakhs dt:31.03.2010?
4. Whether the plaintiff further proves that the defendant had replaced finally cheque for Rs.42 lakhs and Rs.24 lakhs dt:31.03.2011 and dt:30.04.2011 and said cheques were dishonoured when presented for encashment?
5. Whether plaintiff further proves that defendant is liable to pay Rs.66 lakhs with interest at 15% p.a.?83 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014
6. Whether the plaintiff is entitle for suit claim amount with interest due thereon?
7. Whether the defendant proves that the plaintiff on the representation that he had borrowed money from Professional Money Lender to purchase the Ruby had insisted the defendant to pay the amount and accordingly defendant had paid totally Rs.1.5 Crores to the plaintiff and he is no due of any amount and plaintiff had got acknowledged the liability on several letters by force ad coercion?
8. What Order or Decree?
69. Heard the arguments and perused the records.
70. My findings on the above issues are as follows:
Issue No.1: In the affirmative Issue No.2: In the affirmative Issue No.3: In the affirmative Issue No.4: In the affirmative Issue No.5: In the affirmative Issue No.6: In the affirmative Issue No.7: In the negative Issue No.8: As per final order for the following:84 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 REASONS
71. Issue Nos.1 to 4:- All these issues are taken together for the convenience.
72. The definite case of the plaintiff is that defendant herein has received loan of Rs.66,00,000/- from the plaintiff under agreement dated 24.11.2008. In the clubbed suit, plaintiff is examined as D.W.1 and he has produced the documents. The loan transaction between the plaintiff and defendant dated 24.11.2008 is reflected in Ex.D.198. From Ex.D.198 it is clear that, defendant has received the loan of Rs.66,00,000/- from the plaintiff herein. The agreement is not disputed by the defendant. The only contention of the defendant is that the documents executed by him are in connection with the ruby transaction. As per the finding given in other cases, when the defendant has failed to prove the ruby transaction, we have to hold that Ex.D.198 is executed by the defendant only for the purpose of availing the loan. But careful reading of the recital of Ex.D.198, it is clearly mentioned that defendant has received Rs.66,00,000/- 85 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 by cash from the plaintiff and he has also affixed his LTM along with his signature. As per the terms and conditions of Ex.D.198, the defendant who has received the loan of Rs.66,00,000/-, has to repay the same on or before 05.01.2009 and he has also handed over cheque dated 26/12/2008 for Rs.42,00,000/- bearing No.402348 and another cheque bearing No.478844 dated 05.01.2009 for Rs.24,00,000/- towards the transaction and it is mentioned in the agreement that defendant should pay the money in cash. Suppose if he fails to pay the money, then he can present the cheque to the bank to realize the same. With that condition cheque was issued. The defendant who is examined as P.W.1 in clubbed matters, has never disputed the execution of the document Ex.D.198 and is also not disputed the LTM over the same. It is further case of the plaintiff that, when the defendant has not repaid the loan obtained under Ex.D.198 and subsequently the transaction was renewed by execution of Ex.D.199, which is agreement dated 11.07.2009, wherein the defendant has mentioned that due to some problem he could not repay the amount availed under Ex.D.198. In Ex.D.199 there is a 86 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 reference of execution of Ex.D.198. after canceling the cheques mentioned in Ex.D.198, the defendant again issued fresh cheques to renew the loan transaction of Ex.D.198 and again issued cheques bearing No.030801 for Rs.42,00,000/- and cheque bearing No.030802 for Rs.24,00,000/- dated 26.07.2009. The defendant has not disputed the issuance of cheques covered under Ex.D.199. The cheques issued under Ex.D.199 have been produced before Court as per Ex.D.202 and D.203 and in the said cheques it is mentioned that same is cancelled. The defendant who adduced evidence before Court has also not disputed Ex.D.202 and D.203.
73. Again when he did not repay the amount, he issued the cheques dated 31.03.2010 for Rs.42,00,000/- and Rs.24,00,000/- respectively and they are produced at Ex.D.205 and D.205. The same also cancelled and it is mentioned in the cheques itself that fresh cheques have been issued. When again defendant failed to pay the amount, he again issued fresh cheques which are produced as per Ex.D.169 and Ex.D.175 dated 87 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 31.03.2011 and dated 30.04.2011 for Rs.42,00,000/- and Rs.24,00,000/- respectively. The plaintiff has produced the bank endorsement as per Ex.D.170 with respect to the cheque produced at Ex.D.169 and bank endorsement at Ex.D.176 with respect to the cheque produced at Ex.D.175. So from these records, plaintiff is able to prove that defendant has availed loan of Rs.66,00,000/- and towards the said transaction, the defendant has issued the cheques and also agreements. It is not the case of the defendant that cheques issued by him are realized or he repaid the amount obtained under Ex.D.198 and Ex.D.199 and he has not placed any material before Court to show that he has repaid the loan or these documents have been executed towards ruby transaction. If really these documents are executed by the defendant in connection with the ruby transaction, he has not explained what was the hurdle to him to mention the same in Ex.D.198 and Ex.D.199 and also all the cheques issued in connection with Ex.D.198 and Ex.D.199. Hence I am of the humble opinion that after appreciation of oral as well as documentary evidence, the defendant has availed the loan of 88 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 Rs.66,00,000/- from the plaintiff and he is liable to pay the same. Hence issue Nos.1 to 4 are answered in the 'affirmative'.
74. Issue Nos.5 and 6:- When issue Nos.1 to 4 have been held in affirmative holding that plaintiff has lent Rs.66,00,000/- to the defendant and when the defendant has made use of the amount and usage of the same is deprived to plaintiff, the defendant is liable to pay the interest as claimed by the plaintiff. Hence these issues are held in 'affirmative'.
75. Issue No.7:- The defendant has not disputed the execution of any of the documents produced by the plaintiff in this case and apart from that, defendant has not placed any material before Court that these documents are executed in connection with ruby transaction. When the defendant takes the contention that these documents are executed for ruby transaction, what prevented him in mentioning in anyone of the documents that these documents are executed in connection with ruby transaction and even in the letters written in connection with the loan transactions, he has not whispered a single word about 89 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 ruby transaction. When he claims that he has paid Rs.1.5 Crores to the plaintiff towards ruby transaction, he has not placed single material before the Court to prove his contention. Hence issue No.7 is held in the 'negative'.
76. The present suit O.S.No.8548/2013 is filed by the plaintiff for the relief of specific performance directing the defendants to execute registered sale deed and to convey the schedule 'A' property in favour of plaintiff, directing the defendant No.1 to executed registered sale deed in respect of 'B' schedule property and for possession and for perpetual injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property and in the alternative to direct the defendant No.1 to refund a sum of Rs.2,00,00,000/- along with interest at the rate of 18% p.a. from the date of suit till date of realisation and such other reliefs along with costs.
77. The brief facts of the plaintiff's case is that, plaintiff was a trader in ginger and other agricultural produces at 90 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 Shikaripura. Then he shifted to Bengaluru and he was working as Executive Officer at Sivapriya Developers. Then he came in contact with defendant No.1 during 1999. As the plaintiff and defendant No.1 became close friends, defendant No.1 availed financial assistance from the plaintiff to construct bungalow at Bethel Street and plaintiff on the request of the defendant No.1 has lent a sum of Rs.75,00,000/- and for having received Rs.75,00,000/-, defendant No.1 has issued 2 post dated cheques for Rs.25,00,000/- dated 22.11.2002 and for Rs.50,00,000/- dated 24.05.2003. The further case of the plaintiff is that, later on defendant No.1 paid a sum of Rs.16,00,000/- on 03/11/2003 and replaced the above cheques with new cheques bearing Nos.044318, 044319, 044320, 044321, 044322, 044323, all drawn on Corporation Bank dated 31.03.2004, 30.04.2004, 30.05.2004, 30.06.2004, 30.07.2004, 30.8.2004 for Rs.9,00,000/-, Rs.10,00,000/-, Rs.10,00,000/-, Rs.10,00,000/-, Rs.10,00,000/- and Rs.10,00,000/- and he has also wrote a covering letter in this regard. After that, defendant No.1 again requested the plaintiff to arrange for funds to start the developmental activity and also 91 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 offered to associate the plaintiff with the development and again defendant No.1 availed Rs.1,00,00,000/- from the plaintiff and acknowledged the receipt and he has also issued 4 post dated cheques as follows:
Sl.No. Cheque No. Date Amount
01 491586 30.10.04 25,00,000/-
02 491587 30.12.04 25,00,000/-
03 491588 30.03.05 25,00,000/-
04 491589 30.06.05 25,00,000/-
and also wrote a covering letter for having issued the above post dated cheques.
It is further case of the plaintiff that, defendant No.1 has availed Rs.40,00,000/- from one Anil Kumar, who is none other than son of the plaintiff and in this regard, he has issued four post dated cheques as under:
Sl.No. Cheque No. Date Amount
01 510300 15.03.06 5,00,000/-
02 510301 15.06.06 5,00,000/-
92 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012,
6716/2013, 8548/2013, AND 2043/2014
03 510302 30.06.06 10,00,000/-
O4 510303 15.07.06 20,00,000/-
And also wrote a covering letter dated 04.03.2006. Son of the plaintiff is died on 02.06.2007. The plaintiff claims that defendant No.1 in all is due of Rs.1,99,00,000/- and towards discharge of the same, he has agreed to sell the flat No.4 and 811 in Divyashree Group, suppose if the defendant No.1 fails to repay the dues on or before 30.06.2010. He has also stated that defendant No.1 has handed over the keys of flat No.811 and again took back the keys under the pretext of repairing the ceiling. In this regard defendant No.1 has also executed general power of attorney to the plaintiff to sell the apartment in order to realize the amounts towards the loan. It is further pleaded that, defendant No.1 under a letter dated 17.01.2011 agreed to sell flat No.811 and open site measuring 4300 sq. ft. towards outstanding dues of Rs.2,15,00,000/-, suppose if defendant No.1 fails to repay the amount on or before 31.01.2011 and also requested the plaintiff to arrange for registration of flat No.811 93 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 and vacant site measuring 4300 sq. ft. under the letter. Due to difference of opinion, there was a meeting on 22.02.2011 in Infantry Hotel. There the defendant No.1 quarreled with the plaintiff and threatened that he will not repay the amount and thereafter he sold the flat No.811 to the defendants No.2 and 3. The plaintiff states that defendant No.1 without keeping his promise has sold flat No.811 and plaintiff was always ready and willing to perform his part of contract and he had already paid the sale consideration amount and in order to cheat the plaintiff, defendant No.1 has executed the sale deed in favour of defendants No.2 and 3. Hence he seeks for specific performance and also in the alternative for recovery of the amount.
78. The defendant No.1 who put in appearance before Court has filed written statement disputing the contents of the plaint and submitted that towards ruby transaction, the documents were executed, cheques were issued. He has no dues as claimed in the suit. Further he admits that, he has paid Rs.16,00,000/- to the plaintiff, but states it is paid towards ruby 94 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 transaction only and he admits issuance of 5 cheques drawn on Corporation Bank referred to in para 6 of the plaint is also towards ruby transaction. In the entire written statement except stating that issuance of cheques and execution of documents towards ruby transaction, he has not disputed the execution of documents and cheques. Hence he seeks for dismissal of the suit.
79. Basing upon the pleadings, the following issues have been framed:
1. Whether plaintiff proves that the defendant No.1 has availed loan of Rs.1,00,00,000/-
from him and Rs.40,00,000/- from his son for development of survey No.70 of Poornapura measuring 1 acre 25 guntas and had issued post dated cheques to him and his son and entering to joint development agreement agreeing to settle the dues on or before 30.06.2010?
2. Whether he further proves that the defendant No.1 on 17.01.2011 wrote letter agreeing to execute the sale deed of schedule A flat No.811 and schedule B site measuring 4300 square feet towards outstanding dues of Rs.2,50,00,000/- and assured to repay the amount by 31.01.2011?
95 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014
3. Whether he further proves that the defendant No.1 threatened them on 22.02.2011 by denying the liability and sold flat No.811 to defendants No.2 and 3?
4. Whether he further proves that he was and is ready and willing to perform his part of contract?
5. What order or decree?
80. The learned counsel for plaintiff has vehemently argued that the transaction between plaintiff and defendant No.1 is established through the documentary evidence and defendant No.1 has undertaken that either he will pay the amount borrowed or he will execute the sale deed. Hence when he undertakes to execute the sale deed, he has failed in his promise and hence he may be directed to execute the sale deed in respect of suit schedule property.
81. Per contra, the learned counsel for defendant No.1 has argued that there is no agreement whatsoever to sell the suit schedule property and there is no passing of consideration in this regard. He submits that, if suppose the letter written by 96 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 defendant No.1 in favour of plaintiff agreeing to execute the sale deed, then it requires stamp duty. When it is not engrossed on the stamp paper, the same cannot be considered at all and also submits that plaintiff has not proved that there is due of Rs.2,00,00,000/- by the defendant No.1 in favour of the plaintiff. Hence with these submissions, he seeks for dismissal of the suit.
82. The defendants No.2 and 3 though served with summons, have not appeared before Court and they have been placed exparte.
83. My findings on the above issues are as follows:
Issue No.1: In the affirmative Issue No.2: In the affirmative Issue No.3: In the affirmative Issue No.4: In the affirmative Issue No.5: As per the final order For the following:97 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 REASONS
84. Issue Nos.1 and 2:- The defendant No.1 never disputed the execution of any documents produced before the Court by the plaintiff in D series, except the explanation offered by him is that letters have been written, documents have been executed and cheques have been issued only with respect to ruby transaction. Except this, he has not disputed the signature or LTM on the documents.
85. It is the definite case of the plaintiff that, initially defendant No.1 has availed Rs.75,00,000/- from him and towards the said amount he has issued two post dated cheques dated 22.11.2002 for Rs.25,00,000/- and another cheque dated 24.05.2003 for Rs.50,00,000/-. This is substantiated by Ex.D.178 which is a letter dated 03.07.2002 written by defendant No.1 to the Branch Manager of Vijaya Bank, copy of the said letter marked to plaintiff, wherein he has categorically mentioned that the plaintiff has arranged for finance from his friends to construct his house at Bethel Street, Bengaluru and he has categorically 98 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 mentioned that these cheques are issued to repay the loan to K.V. Krishnamurthy, i.e., plaintiff, to enable him to clear the loan which he has raised from his friends and relatives. So this letter or signature over the said letter is not disputed by the defendant No.1. Further to substantiate his case, plaintiff has also produced the original cheque covered under Ex.D.178 for Rs.50,00,000/- dated 24.05.2003. It is not disputed by defendant No.1. When these documents Ex.D.178 and D.179 are produced from the proper custody, it can be safely hold that plaintiff has proved the transaction.
86. Further it is the case of the plaintiff that, out of Rs.75,00,000/- defendant No.1 has repaid Rs.16,00,000/- and payment of Rs.16,00,000/- is admitted by the defendant No.1 in the written statement and further in Ex.D.182, a letter dated 03.11.2003 written by defendant No.1 to plaintiff, he has categorically mentioned in the letter that he has paid Rs.16,00,000/- towards part payment of Rs.25,00,000/- and balance Rs.9,00,000/- will be paid and has issued another cheque 99 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 for Rs.9,00,000/- drawn on Vijaya Bank, Yeshawanthpura dated 31.03.2004 and under Ex.D.182 towards replacing of Rs.50,00,000/- cheques, he has issued another 5 cheques. The said document is also not disputed by defendant No.1, which bears his signature. The letter dated 26.12.2003 written by defendant No.1 to plaintiff, which is marked as Ex.D.183 reveals that he has availed Rs.1,00,00,000/- from the plaintiff for the development of his property situating at Sy.No.70 of Poornapura Village. He has extended his thanks in Ex.D.183 stating that he has taken pain to arrange finance from his friends and relatives. In the said letter he has mentioned that he has issued 4 post dated cheques towards repayment of the said loan. The said post dated cheques are produced by the plaintiff as per Ex.D.180, D.181, D.184 and D.185. The defendant No.1 has not disputed the issuance of Ex.D.180, D.181, D.184 and D.185 and writing of Ex.D.183 and he has not produced any document before Court for having cleared this loan. Ex.D.186, which is letter dated 04.03.2006 written by defendant No.1 to Anil K.K., who is none other than son of the plaintiff. As per the said letter, he has 100 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 received Rs.40,00,000/- from the said Anil. Ex.D.186 also bears the signature of defendant No.1 and also thumb impression of defendant No.1. In the said letter he has written that he has issued Ex.D.187, D.188, D.189 and D.190 towards payment of the loan availed from Anil to the tune of Rs.40,00,000/-. Defendant No.1 has also not disputed these documents and has not produced any material before Court for having cleared the amount borrowed from Anil. Anil, who is son of plaintiff, is expired on 02.06.2007 and his death certificate is marked at Ex.D.192.
87. The important document which plaintiff relies upon is Ex.D.38, which is letter dated 17.01.2011, which is a handwritten letter in the letterhead of the defendant No.1, wherein he has categorically admitted that he has due to the plaintiff in a sum of Rs.2,15,00,000/- and he has agreed to clear the same by 31st January 2011 and he has further undertaken that in case if he fails to pay the amount, he will arrange for registration of the sale of flat No.811 in Divya MSR Gateway and vacant site of 4300 sq. 101 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 ft. adjacent to Divya MSR Gateway Complex, and he has also wrote that after the registration, plaintiff should return the cheques given for Rs.50,00,000/- for flat No.811 and cheques for Rs.1,50,00,000/- as per the agreement. This shows that he has received sale consideration towards flat and site measuring 4300 sq. ft. He has also written to the plaintiff that plaintiff should intimate the date of registration and he has also mentioned the value of the registration. So by appreciating Ex.D.38, it appears that defendant has dues towards the plaintiff and he agreed to sell the property to plaintiff, which is also supported by his previous letter dated 24.03.2010 which is marked at Ex.D.37. From these documents it is very crystal clear that he agreed to sell the suit schedule property to the plaintiff for the dues. But as per Ex.D.191 he has sold the flat No.811 to defendants No.2 and 3 and executed the sale deed dated 07.07.2011 along with his wife and son. So all these documents shows that defendant No.1 was due to the plaintiff and wrote the letter agreeing to execute the sale deed. Hence issue Nos.1 and 2 are held in the 'affirmative'.
102 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014
88. Issue No.3:- Admittedly, defendant No.1 is due to the plaintiff and after the meeting held at Infantry Hotel, the cheque issued by defendant No.1 was bounced and later on, after issuance of legal notice, defendant No.1 has lodged complaint. He disputes that he has not agreed to sell the flat No.811 and site to plaintiff and these transactions are only towards ruby transaction. If that is so, Ex.D.37 and D.38 are personal communications written by defendant No.1 to plaintiff and especially Ex.D.38 is letter written by defendant No.1 in his own handwriting. But he has not explained why and what prevented him in mentioning the ruby transaction in Ex.D.37 and D.38, when it is personal communication. He has admitted that he has due and he has agreed to sell the flat. When he disputed the same, it is necessarily deemed that he is not ready to execute the sale deed in favour of the plaintiff, because of that reason only he has executed the sale deed in favour of defendants No.2 and 3 and he has not adduced any evidence before Court disputing the Infantry Hotel meeting. When such being the case, it is held that plaintiff has proved issue No.3 and it is held in 'affirmative'. 103 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014
89. Issue No.4:- The plaintiff has paid amount to the defendant No.1 as loan, for which defendant No.1 has agreed to sell the flat and site as per Ex.D.38. There is no short coming from the side of plaintiff. From the appreciation of the materials on record, it shows that he was ready and willing to perform his part of contract, but it is defendant No.1 who has not kept his promise under Ex.D.38. Hence this issue is answered in 'affirmative'.
90. Issue No.5:- Admittedly, defendant No.1 had agreed to sell flat No.811 and vacant site measuring 4300 sq. ft and has executed registered sale deed in favour of defendants No.2 and 3 along with his wife and son. To grant specific performance of contract to direct defendant No.1 to executed registered sale deed in favour of plaintiff so far as suit schedule property is concerned, plaintiff has not made the other signatories of Ex.D.191 as parties to the suit, i.e., Smt. Indra Ramaiah and M.S. Rajaram. They are not parties to the suit and the property is already been sold by defendant No.1 under a registered sale deed 104 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 dated 07.07.2011. When the plaintiff has also sought for alternative relief for refund of sum of Rs.2,00,00,000/- along with interest at the rate of 18% p.a. from the date of suit till date of repayment, if alternative relief sought by the plaintiff is granted, then it will meet the ends of justice.
91. Issue No.6 in O.S.8313/2011, O.S.8522/2011, O.S.8524/2011, O.S.2600/2012, Issue No.3 in O.S.6717/2013, and Issue No.8 in O.S.No.2043/2014:- In view of my findings on the above issues, I proceed to pass the following:-
O RDER The suit of the plaintiffs in O.S.No.8313/2011 is dismissed with costs.
The suit of the plaintiffs in O.S.No.8522/2011 is dismissed with costs.
The suit of the plaintiffs in O.S.No.8524/2011 is dismissed with costs.
The suit of the plaintiffs in O.S.No.2600/2012 is dismissed with costs.105 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 The suit of the plaintiff in O.S.No.6716/2013 is decreed with costs.
Plaintiff is entitled to recover the amount of Rs.52,00,000/- from the defendant with interest at 12% p.a. from the date of suit till realisation and the defendant is directed to pay the amount within 2 months from the date of this judgment.
The suit of the plaintiff in O.S.No.2043/2014 is decreed with costs.
Plaintiff is entitled to recover the amount of Rs.66,00,000/- from the defendant with interest at 15% p.a. from the date of suit till realisation and the defendant is directed to pay the amount within 2 months from the date of this judgment.
The suit of the plaintiff in O.S.No.8548/2013 is decreed in part for alternative relief for refund of Rs.2,00,00,000/- with interest at 18% p.a. with costs.
Defendant No.1 is directed to pay Rs.2,00,00,000/- to the plaintiff along with interest at 18% p.a. from the date of suit within 2 months from the date of this judgment.106 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 Draw a decree accordingly.
Original judgment shall be kept in O.S.No.8313/2011 and copies thereof in the connected suits.
(Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 30th day of November, 2018.) (SATHISHA L.P.) XII ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY SCHEDULE IN O.S.No.8313/2011 SCHEDULE A PROPERTY All that piece and parcel of immovable property bearing Corporation Khatha Numbers 65, 66, 67, 68, 69, 70, 71, 72 and 73, 73/1, 73/2, 73/3, 73/4, 74 and 92 situated at M.S. Ramaiah Road, Old HMT Main Road, Ward No.2, Bengaluru totally measuring 74,196 square feet and bounded by On the East M.S. Ramaiah Main Road On the West Property belonging to Sri Janakiram On the North 40' wide road On the South 25' wide road 107 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 SCHEDULE B PROPERTY All that piece and parcel of immovable property bearing Corporation Khatha Numbers 65, 66, 67, 68, 69, 70, 71, portion of 72, 73, 73/1, 73/2, portion of 73/3, portion of 73/4, and 74 situated at M.S. Ramaiah Road, Old HMT Main Road, Ward No.2,1 Bengaluru totally measuring 65,272 square feet and bounded by On the East M.S. Ramaiah Main Road On the West Property sold to Smt. Mallamma and property belonging to Sri Janakiram On the North 40' wide road and Corporation No.92 On the South 25' wide road and property sold to Smt. Mallamma SCHEDULE C PROPERTY 0.35% share of undivided interest in the schedule property equivalent to 559 sq. ft. with a right to construct and own the schedule "C" property which is the specific subject matter agreed to be conveyed herein which is being the owners share under the Joint Development Agreement SCHEDULE D PROPERTY DIVYA MSR GATEWAY, Flat No.512 on the fifth floor in Block B of the building constructed on schedule B property in terms of the sanctioned plan vide LP No.JC/W/Mall/641/05-06, dated 16/11/2005 issued by the Bengaluru Mahanagara Palike, Bengaluru consisting of hall cum dining, three bed rooms, toilet, kitchen, balconies, etc., along with prorate common areas and 108 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 facilities attributable thereto, with a super built up area of 1575 sq. ft inclusive of car parking lot in the basement for exclusive se of the purchaser. The flooring is vitrified tiles and residential flats.
SCHEDULE IN O.S.No.8522/2011 SCHEDULE A PROPERTY All that piece and parcel of immovable property bearing Corporation Khatha Numbers 65, 66, 67, 68, 69, 70, 71, 72 and 73, 73/1, 73/2, 73/3, 73/4, 74 and 92 situated at M.S. Ramaiah Road, Old HMT Main Road, Ward No.2, Bengaluru totally measuring 74,196 square feet and bounded by On the East M.S. Ramaiah Main Road On the West Property belonging to Sri Janakiram On the North 40' wide road On the South 25' wide road SCHEDULE B PROPERTY All that piece and parcel of immovable property bearing Corporation Khatha Numbers 65, 66, 67, 68, 69, 70, 71, portion of 72, 73, 73/1, 73/2, portion of 73/3, portion of 73/4, and 74 situated at M.S. Ramaiah Road, Old HMT Main Road, Ward No.2,1 Bengaluru totally measuring 65,272 square feet and bounded by On the East M.S. Ramaiah Main Road On the West Property sold to Smt. Mallamma and property belonging to Sri Janakiram 109 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 On the North 40' wide road and Corporation No.92 On the South 25' wide road and property sold to Smt. Mallamma SCHEDULE C PROPERTY 0.36% share of undivided interest in the schedule property equivalent to 585 sq. ft. with a right to construct and own the schedule "C" property which is the specific subject matter agreed to be conveyed herein which is being the owners share under the Joint Development Agreement SCHEDULE D PROPERTY DIVYA MSR GATEWAY, Flat No.312 on the third floor in Block B of the building constructed on schedule B property in terms of the sanctioned plan vide LP No.JC/W/Mall/641/05-06, dated 16/11/2005 issued by the Bengaluru Mahanagara Palike, Bengaluru consisting of hall cum dining, three bed rooms, toilet, kitchen, balconies, etc., along with prorate common areas and facilities attributable thereto, with a super built up area of 1647 sq. ft inclusive of car parking lot in the basement for exclusive se of the purchaser. The flooring is vitrified tiles and residential flats.
SCHEDULE IN O.S.No.8524/2011 SCHEDULE A PROPERTY All that piece and parcel of immovable property bearing Corporation Khatha Numbers 65, 66, 67, 68, 69, 70, 71, 72 and 73, 73/1, 73/2, 73/3, 73/4, 74 and 92 situated at M.S. Ramaiah 110 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 Road, Old HMT Main Road, Ward No.2, Bengaluru totally measuring 74,196 square feet and bounded by On the East M.S. Ramaiah Main Road On the West Property belonging to Sri Janakiram On the North 40' wide road On the South 25' wide road SCHEDULE B PROPERTY All that piece and parcel of immovable property bearing Corporation Khatha Numbers 65, 66, 67, 68, 69, 70, 71, portion of 72, 73, 73/1, 73/2, portion of 73/3, portion of 73/4, and 74 situated at M.S. Ramaiah Road, Old HMT Main Road, Ward No.2,1 Bengaluru totally measuring 65,272 square feet and bounded by On the East M.S. Ramaiah Main Road On the West Property sold to Smt. Mallamma and property belonging to Sri Janakiram On the North 40' wide road and Corporation No.92 On the South 25' wide road and property sold to Smt. Mallamma SCHEDULE C PROPERTY 0.35% share of undivided interest in the schedule property equivalent to 559 sq. ft. with a right to construct and own the schedule "C" property which is the specific subject matter agreed to be conveyed herein which is being the owners share under the Joint Development Agreement 111 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 SCHEDULE D PROPERTY DIVYA MSR GATEWAY, Flat No.502 on the fifth floor in Block B of the building constructed on schedule B property in terms of the sanctioned plan vide LP No.JC/W/Mall/641/05-06, dated 16/11/2005 issued by the Bengaluru Mahanagara Palike, Bengaluru consisting of hall cum dining, three bed rooms, toilet, kitchen, balconies, etc., along with prorate common areas and facilities attributable thereto, with a super built up area of 1575 sq. ft inclusive of car parking lot in the basement for exclusive se of the purchaser. The flooring is vitrified tiles and residential flats.
SCHEDULE IN O.S.No.2600/2012 SCHEDULE A PROPERTY All that piece and parcel of immovable property bearing Corporation Khatha Numbers 65, 66, 67, 68, 69, 70, 71, 72 and 73, 73/1, 73/2, 73/3, 73/4, 74 and 92 situated at M.S. Ramaiah Road, Old HMT Main Road, Ward No.2, Bengaluru totally measuring 74,196 square feet and bounded by On the East M.S. Ramaiah Main Road On the West Property belonging to Sri Janakiram On the North 40' wide road On the South 25' wide road 112 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 SCHEDULE B PROPERTY All that piece and parcel of immovable property bearing Corporation Khatha Numbers 65, 66, 67, 68, 69, 70, 71, portion of 72, 73, 73/1, 73/2, portion of 73/3, portion of 73/4, and 74 situated at M.S. Ramaiah Road, Old HMT Main Road, Ward No.2,1 Bengaluru totally measuring 65,272 square feet and bounded by On the East M.S. Ramaiah Main Road On the West Property sold to Smt. Mallamma and property belonging to Sri Janakiram On the North 40' wide road and Corporation No.92 On the South 25' wide road and property sold to Smt. Mallamma SCHEDULE C PROPERTY 0.36% share of undivided interest in the schedule property equivalent to 1183 sq. ft. with a right to construct and own the schedule "C" property which is the specific subject matter agreed to be conveyed herein which is being the owners share under the Joint Development Agreement SCHEDULE D PROPERTY DIVYA MSR GATEWAY, Flat No.510 on the fifth floor in Block B of the building constructed on schedule B property in terms of the sanctioned plan vide LP No.JC/W/Mall/641/05-06, dated 16/11/2005 issued by the Bengaluru Mahanagara Palike, Bengaluru consisting of hall cum dining, three bed rooms, toilet, kitchen, balconies, etc., along with prorate common areas and 113 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 facilities attributable thereto, with a super built up area of 1183 sq. ft inclusive of car parking lot in the basement for exclusive se of the purchaser. The flooring is vitrified tiles and residential flats.
SCHEDULE IN O.S.No.8548/2013 SCHEDULE-A All that piece and parcel of a three bed room apartment demarcated as apartment No.811 in the 8th floor in the multistoried building called "Divya MSR Gateway" measuring in all 1459 sq. ft. super built up area along with 534 sq. ft of undivided share out of Municipal Katha No.72, (PID No.2-226-72) (old khatha Nos.65 to 73, 73/1 to 4, 74 and 92) pf the Bengaluru Mahanagara Palike, situate at M.S. Ramaiah Road, Old HMT Main Road, Ward No.2 of BMP, Bengaluru, including one covered car parking area marked as No.811 in the basement and including all common rights, common areas, common amenities, privileges, appurtenances and the entire property is bound on the East by: M.S. Ramaiah Main Road West by Property belong to Sri Janakiram North by: 40 feet wide road South by: 25 feet wide road SCHEDULE -B All the piece and parcel of land bearing BBMP khatha No.72, situated a Ward No.2 (Old HMT Main Road) Gokula, 114 O.S.No.8313/2011 C/W 8522/2011, 8524/2011, 2600/2012, 6716/2013, 8548/2013, AND 2043/2014 Bengaluru-560 054, measuring to an extent of 4300 square feet and bounded on:
East by: Mr. Ramamurthy property and Divya MSR Gateway West by: Mr. M.R. Janakiram property North by: 40 feet road South by: Divya MSR Gateway ANNEXURE Common evidence is recorded in all the cases:
I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: M.R. Sampangiramaiah
P.W.2: G.A.Biradar
P.W.3: B.S.N. Shetty
(b) Defendant's side :
D.W.1: K.V. Krishnamurthy
D.W.2: Kiran V. Katekar
D.W.3: Smt. K. Archana
D.W.4: Smt. Anitha K.
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P.1 to Certified copies of sale deeds
P.4:
115 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012,
6716/2013, 8548/2013, AND 2043/2014
Ex.P.5: Certified copy of complaint
Ex.P.6: FIR
Ex.P.7: Certified copy of sale deed
Ex.P.8 to Statements
P.12:
Ex.P.13: No due certificate
Ex.P.14: Letter dated 26.06.2015
Ex.P.15: Certificate issued by Manager
Ex.P.16: Certified copy of charge sheet
Ex.P.17: Agreement of sale
Ex.P.18: Charge sheet
Ex.P.19: Certified copy of complaint in
C.C.No.22698/2011
(b) Defendants side :
Ex.D.1: Statement of P.W.1
Ex.D.2 to Copy of letters
D.4:
Ex.D.5: GPA
Ex.D.6: Letter dated 12.01.2011
Ex.D.7: Reply
Ex.D.8 to 3 letters
D.10:
Ex.D.11 to 3 cheques
D.13
Ex.D.14: Possession letter
Ex.D.15: Letter
Ex.D.16: Receipt
Ex.D.17: Certified copy of cheque
Ex.D.18: Certified copy of agreement
Ex.D.19 to Certified copies of 3 cheques
D.21:
Ex.D.22 & Certified copies of cheques
D.23:
Ex.D.24: Certified copy of reply notice
116 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012,
6716/2013, 8548/2013, AND 2043/2014
Ex.D.25: Reply notice dated 14.11.2011
Ex.D.26 to Photocopies of 4 cheques
D.29:
Ex.D.30: Letter
Ex.D.31: Covering letter
Ex.D.32: Letter
Ex.D.33 to Cheques
D.36:
Ex.D.37: Letter
Ex.D.38: Letter
Ex.D.39: Certified copy of certificate
Ex.D.40: Agreement
Ex.D.41: Cheque
Ex.D.42: Consortium agreement
Ex.D.43: Business agreement
Ex.D.44: Cash receipt
Ex.D.45 & Passbooks
D.46:
Ex.D.47: Purchase bill
Ex.D.48 & Letters
D.49:
Ex.D.50 & FormNo.27
D.51:
Ex.D.52: Form No.3
Ex.D.53: Form No.4
Ex.D.54 to Receipts
D.78:
Ex.D.79: Invoice
Ex.D.80: Sale patti
Ex.D.81: Order form
Ex.D.82: Bill of exchange
Ex.D.83 to Cash bills
D.88:
Ex.D.89: Receipt
Ex.D.90: License
Ex.D.91: Copy of letter
Ex.D.92: Intimation
117 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012,
6716/2013, 8548/2013, AND 2043/2014
Ex.D.93 to Copies of letters
D.103:
Ex.D.104 Letters
to D.108:
Ex.D.109: Notice
Ex.D.110: Receipt
Ex.D.111: Sale invoice
Ex.D.112: Receipt
Ex.D.113 Delivery note
to D.166:
Ex.D.167: Certified copy of judgment in S.C.
No.40/1986
Ex.D.168: Certified copy of certificate
Ex.D.169: Certified copy of cheque
Ex.D.170: Certified copy of bank endorsement
Ex.D.171: Letter
Ex.D.172: Reply dated 14.11.2011
Ex.D.173: Certified copy of PCR No.27109/2011
Ex.D.174: Certified copy of notice
Ex.D.175: Certified copy of cheque
Ex.D.176: Certified copy of bank endorsement
Ex.D.177: Certified copy of PCR
Ex.D.178: Copy of letter
Ex.D.179 Cheques
to D.181:
Ex.D.182: Letter
Ex.D.183: Letter
Ex.D.184 Cheques
& D.185:
Ex.D.186: Letter
Ex.D.187 Cheques
to D.190:
Ex.D.191: Certified copy of sale deed
Ex.D.192: Death certificate of Anil
Ex.D.193: Certificate
Ex.D.194: Legal notice dated 07.03.2011
Ex.D.195: Letter
118 O.S.No.8313/2011 C/W
8522/2011, 8524/2011, 2600/2012,
6716/2013, 8548/2013, AND 2043/2014
Ex.D.196: Postal receipt
Ex.D.197: Delivery information of articles Ex.D.198: Certified copy of agreement Ex.D.199: Agreement Ex.D.200: Certified copy of cheque Ex.D.201: Certified copy of cheque Ex.D.202: Certified copy of cheque Ex.D.203: Certified copy of cheque Ex.D.204: Certified copy of cheque Ex.D.205: Certified copy of cheque XII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.