Bangalore District Court
B.Subramani vs B.Ganesh Prasad on 17 March, 2018
IN THE COURT OF XVIII ADDL.CITY CIVIL JUDGE,
AT BENGALURU CITY [CCH.NO.10]
Dated this day the 17th March 2018
PRESENT
Smt.M.PANCHAKSHARI, M.Com., LL.B.
XVIII Addl.City Civil Judge.
O.S.No.2233/2012
Plaintiff: B.Subramani,
s/o Late N.P.Bylappa,
Aged about 49 years,
r/at No.13/20, 1st cross,
1st Main, Valmikinagara,
Bangalore - 560 026.
[By Sri.M.B.V., Advocate]
/VS/
Defendant: B.Ganesh Prasad,
s/o Late N.P.Bylappa,
Aged about 49 years,
r/at No.13/20, 1st cross,
1st Main, Valmikinagara,
Bangalore - 560 026.
[Sri.M.A., Advocate]
Date of institution of 28.3.2012
suit
Nature of the suit Specific performance
(Suit on pronote, suit
for declaration and
possession suit for
injunction, etc.
Date of the 06.07.2015
2 OS.No.2233/2012
commencement of
recording of the
evidence.
Date on which the 17.03.2018
Judgment was
pronounced.
Year/s Month/s day/s
Total duration: 05 11 19
(M.PANCHAKSHARI)
XVIII Addl.City Civil Judge, Bangalore.
JUDGMENT
The suit of the plaintiff is for the relief of specific performance of contract directing the defendant to execute the absolute sale deed in his favour in respect of the suit schedule property by receiving balance sale consideration of Rs.5Lakhs and if the defendant failed to execute registered sale deed with a liberty to deposit the amount of Rs.5 Lakhs in the court and get the sale deed through the agency of court and for costs.
2. The brief and relevant facts as alleged in the plaint are as follows:
It is the contention of the plaintiff the defendant are brothers and their mother DM.Kamalamma acquired the property bearing No.13/20 (old No.112) situated at 1st cross, 1st main, Valmikinagar, Mysore road, Bangalore measuring east-west 18 feet and north-south 78 feet under registered sale deed dtd.13.10.1955 and was the absolute owner in 3 OS.No.2233/2012 possession and enjoyment of the same. During her life time she had constructed two residential houses ie., front and hind portions with all basic amenities. She died on 3.11.1995. It is further contended that after demise of their mother plaintiff and defendant have partitioned the above said property under registered partition deed dtd.15.3.2000 and as per the said partition deed plaintiff got front portion and defendant got hind portion of the property. Katha of the property have been mutated in their names and they were paying taxes to the authorities.
3. It is further contended that the defendant is a bachelor and incurred heavy debts and intended to sell his portion of property ie., hind portion of the property bearing No.13/20 (old No.112) situated at 1st cross, 1st main, Valmikinagar, Mysore road, Bangalore measuring east-west 18 feet and north-south 39 feet with ground and 1st floor to the plaintiff for sale consideration of Rs.15 Lakhs and executed agreement of sale dtd.13.5.2008 by receiving Rs.10 Lakhs as advance sale consideration. It is further contended that the plaintiff was ever ready and willing to perform his part of contract but the defendant failed to execute the sale deed in his favour. Hence the suit.
4. Defendant appeared through his counsel and filed written statement denying the plaint averments and contended 4 OS.No.2233/2012 that plaintiff had been approached and obtained non-judicial stamp paper from the State Bank of Mysore on 13.5.2008 denomination of Rs.100/- each vide document no.450529, used by the plaintiff as agreement and another paper bearing No.450530 used by the plaintiff as release deed. The plaintiff has misused the two stamp papers for wrongful gain. Defendant had also lodged complaint on 8.12.2008 against the plaintiff with jurisdictional police. Based on the complaint, plaintiff surrendered Blank cheque bearing No.222069 belonging to the defendant, blank on demand paper, signature on blank white paper in the presence of police. It is further contended that plaintiff has executed the stamp paper on 10.12.2008. In the said document the plaintiff has stated that the defendant had received all the documents and there is no connection with regard to the amount and he is not possessing any documents. The plaintiff had misused the non judicial stamp papers dtd.13.5.2008 and filed the suit with dishonest intention. Defendant had not received any amount from the plaintiff and the agreement of sale is impound document as he has not paid sufficient stamp duty. It is further contended that the plaintiff in the habit of using of blank papers fraudulently, and plaintiff did not demanded any demand on 10.2.2012 and the agreement of sale is created by the plaintiff. On the above grounds prays for dismissal of the suit.
5 OS.No.2233/20125. On the basis of the above pleadings the following issues were framed:
1. Whether the plaintiff proves that the defendant has agreed to sell the suit schedule property in his favour for a sum of Rs.15 Lakhs and executed an agreement of sale dtd.13.5.2008 by receiving advance sale consideration of Rs.10 Lakhs?
2. Whether the plaintiff proves that he is and was ready and willing to perform his part of contract?
3. Whether the plaintiff is entitled for the decree of specific performance of contract as prayed?
4. What order or decree?
6. Plaintiff got examined himself and one witness as PW1 & 2, got marked Ex.P1 & 2 and closed his side. The defendant got himself examined as DW1, got marked Ex.D1 to D13 and closed his side.
7. Heard the arguments on plaintiff and defendant. Perused the materials placed on record.
8. My findings on the above issues are as under:
Issue No.1 : In the negative
Issue No.2 : In the negative
Issue No.3 : In the negative
Issue No.4 : As per final order,
For the following:
6 OS.No.2233/2012
REASONS
9. Issue Nos.1 & 2 :- The plaintiff had filed the present suit for specific performance of contract. From the pleadings of the parties it is very much made out that plaintiff and defendant are brothers. Plaintiff contended that defendant had executed the agreement of sale in his favour on 13.5.2008 in respect of the suit schedule property. It is also his contention that he had paid a sum of Rs.10 Lakhs to the defendant by way of cash as advance sale consideration amount. Balance amount was agreed to be paid by the plaintiff at the time of execution of the registered sale deed. The property in question originally belongs to the mother of plaintiff and defendant which was partitioned among them after the death of their mother. It is the contention of the plaintiff that their mother DM.Kamalamma had purchased the suit schedule property through a registered sale deed dtd.3.10.1955 and she died in 3.11.1995. Registered partition deed is entered between plaintiff and defendant is dated 15.3.2000. The fact that suit schedule property being originally belongs to their mother and defendant having acquired right over the suit schedule property by means of partition deed dtd. 15.3.2000 is not denied by defendant. But defendant had denied the very execution of the agreement of sale. Whereby it is his contention that in the year 2008, he was in need of money so when he requested for advancing loan amount plaintiff made arrangement for it payment through way of their common 7 OS.No.2233/2012 friend Mr. Hameed and he was paid a sum of Rs.30,000/- and at the time of payment of the said amount, plaintiff had received one signed blank cheque, two blank 100 rupees stamp papers, blank on demand papers and signed blank white papers. So it is the contention of the defendant that the two blank stamp papers of denomination of Rs.100/- each is misused by the plaintiff whereby in one document plaintiff concocted the agreement of sale and in other document he had created the release deed. It is also his contention that as he had returned the loan amount of Rs.30,000/- along with interest, he demanded the plaintiff to return back the two blank stamp papers, blank cheque and other documents. But he had denied to return it back. So defendant had lodged complaint on 8.12.2008 whereby before police plaintiff had also given undertaking. So it is his contention that plaintiff had misused the blank stamp papers dtd. 13.5.2008 which he had given to the plaintiff for security purpose at the time of availing the loan.
10. Plaintiff in his plaint had not pleaded anything with regard to the fact of defendant having issued cheque for return of advance sale consideration amount in connection to the said cheque plaintiff having filed criminal case against the defendant herein. Plaint averments in Para 10 to 12 makes out that plaintiff having made repeated request for getting the sale deed executed, defendant had failed and neglected to get the 8 OS.No.2233/2012 sale deed executed by receiving balance sale consideration amount. So without any alternative now plaintiff is constrained to file the suit for specific performance of agreement of sale dtd. 13.5.2008 whereby the cause of action contended in the plaint is 15.8.2009 when plaintiff demanded the defendant to execute the registered sale deed by receiving balance sale consideration amount.
11. Plaintiff in order to prove his contention got himself examined as PW1 and in his affidavit filed for examination in chief he had reiterated the plaint averments. Even in the chief examination he had not stated anything with regard to the filing of criminal case against the defendant herein for having issued a cheque towards return of the advance sale consideration amount. Ex.P1 is the agreement of sale and Ex.P2 is the certified copy of the cheque. It is the very same cheque which is produced in CC.No.18138/2012 which has per contention of the plaintiff herein who is the complainant in the said case. The said cheque came to be issued by the accused / defendant towards return of the advance sale consideration amount. In the cross examination PW1 had stated that defendant had executed the agreement of sale in his favour in respect of the suit schedule property and also release deed in respect of 9 guntas of land situated at Nelamangala. Both documents are executed on 13.5.2008. Though the recitals of Ex.P1 makes out part consideration 9 OS.No.2233/2012 amount of Rs.10 Lakhs is paid on the very same day, in the cross examination PW1 had stated that on the date of agreement of sale he had paid a sum of Rs.3,50,000/- and he had paid Rs.2 Lakhs earlier to the date of agreement. It is also his version that he had paid the said amount in cash. But to make out that he was having funds as on 13.5.2008 he has not produced any documents. Even he had not produced his bank statement. As per his version he is an electrician by profession and his wife earning Rs.2000/- per month by preparing plastic covers. Though he had stated in the cross examination that he can produce his bank statement he had not opted to produce it. In his cross examination he had stated that defendant had issued one cheque for Rs.10 Lakhs in the year 2009 which was dishonoured. He had stated that he had filed criminal case with regard to the dishonour of cheque in CC.18138/2012. The certified copy of the cheque in the said case having tendered in the cross examination which is marked as Ex.D1.
12. With regard to the defense as to the fact defendant having borrowed loan of Rs.30,000/- on 13.5.2008 PW1 had denied it. But he had voluntarily answered that a sum of Rs.30,000/- was paid through his friend one Hameed Bai in the month of October 2008. He had also stated that defendant had issued one cheque and executed agreement as security for the loan of Rs.30,000/-. But he denied that defendant had 10 OS.No.2233/2012 handed over two stamp papers worth Rs.100/- each dated 13.5.2008. He had also denied that he had obtained signature of the defendant on those blank stamp papers. The fact that defendant had lodged complaint on 8.12.2008 before Chamarajpet Police and PW1 having called to the station is also made out in para 5 of the cross examination of PW1. He also admitted that he had executed a undertaking in the police station. But further he had deposed that the said under taking was given by Hameed Bai. Same is marked as Ex.D2 in the cross examination of PW1. Release Deed which is also said to have been created by the plaintiff by misusing one of the stamp paper is also tendered in the cross examination and it is marked as Ex.D3.
13. Plaintiff had opted to examine one of the attesting witness to the agreement of sale as PW2 whereby he is none other than the uncle of the plaintiff. As per his version in the evidence affidavit, on 13.5.2008, plaintiff had paid a sum of Rs.2,50,000/- by way of cash. So contrary evidence whereby PW1 in his chief examination had stated that on the date of agreement of sale he had paid a sum of Rs.10 Lakhs to the defendant by way of cash. Whereby in the cross examination in first para he had stated that on the date of agreement of sale he had paid a sum of Rs.3,50,000/- to the defendant and he had voluntarily stated that a sum of Rs.2 Lakhs was paid earlier to the date of agreement. But no where it is made in 11 OS.No.2233/2012 the evidence of plaintiff that when balance amount of Rs.4,50,000/- was paid. PW2 in his chief examination had stated that plaintiff had already paid a sum of Rs.7,50,000/- to the defendant. But in the cross examination PW1 though being uncle to both plaintiff and defendant had stated he do not know how many agreements came to be executed on 13.5.2008. Further in the cross examination also PW2 had specifically stated that on 13.5.2008 sum of Rs.2,50,000/- was paid. Even in the cross examination he had stated that he do not know when Rs.7,50,000/- was paid. On perusal of the Ex.P1 agreement of sale two witnesses had signed the document. Whereby signature of PW2 is marked as Ex.P1()g) and there is one more witness by name Lakshmanmurthy. But PW2 in his cross examination he had stated that when a sum of Rs.2,50,000/- was paid apart from him no other person were present at the spot.
14. Now coming to the evidence of defendant who had been examined as DW1, whereby he admits that he is owner of the suit schedule property and plaintiff is his brother. Further he had stated that he only obtained non judicial stamp papers from State Bank of Mysore on 13.5.2008 each for a denomination of Rs.100 which blank stamp papers were sued by the plaintiff as agreement of sale and rectification deed. Further he had deposed that he had filed complaint against the plaintiff to the jurisdictional police on 8.12.2008 and on 12 OS.No.2233/2012 the basis of the complaint, plaintiff has surrendered certain documents in the presence of police which is blank cheque bearing No.222068, blank on demand document, signed on blank white papers. But he had not handed over blank signed stamp papers of Rs.100/- each. Further he had deposed that plaintiff had executed the stamp papers on 10.12.2009 before jurisdictional police station stating that he will not misuse the blank signed stamp paper in future. But later the plaintiff by playing fraud had misused the blank signed stamp papers and got created the agreement of sale. In support of his evidence he had produced the documents which are marked as Ex.D1 to D13. Ex.D1 to 3 came to be marked in the cross examination of PW1. Ex.D4 is the writ petition filed by the plaintiff herein challenging the cancellation of katha in his name. It is the contention of the defendant that though they are brothers they are not in good terms as they had litigation even in the year 2006. So to make out this fact he had produced Ex.D5 which is certified copy of the order sheet in OS.No.5354/2006, said document is marked as Ex.D6. It is also submitted in the argument addressed on behalf of the defendant that as defendant was a bachelor till 2014, though he was aged more than 50 years, plaintiff though of knocking out the property of the defendant, Marriage invitation card of the defendant is also produced and same is marked as Ex.D7. Xerox copy of the complaint dtd.8.12.2008 is also produced whereby receipt for acknowledging the said complaint is 13 OS.No.2233/2012 marked as Ex.P8. On the basis of the said complaint, police having called the plaintiff to the station endorsement is also issued as per Ex.D9. Defendant had also produced the document dtd. 10.12.2008 which is said to have been entered in between the plaintiff and defendant with regard to the loan amount of Rs.30,000/-. With regard to the said document PW1 had stated that the said undertaking letter was given by Hameed. But it bears the signature of both plaintiff and defendant. Unused blank signed cheque which is also produced which is marked as Ex.D11. Along with it signed blank white paper is also produced which is said to be the documents which were returned by the plaintiff when he had lodged a complaint against plaintiff herein. Blank signed on demand is also produced which is marked as Ex.D12. Ex.D13 is the letter addressed by the defendant to the manager of the State Bank of Mysore wherein it is acknowledged for purchase of two non-judicial stamp papers of Rs.100/-denomination by defendant on 13.5.2008. There is evidence in the cross examination of PW1 in Para 4 that defendant had issued one cheque and executed an agreement as security for the loan of Rs.30,000/-. So then it is for the plaintiff to explain that why blank cheque which is marked as Ex.D11 and cancelled on demand and consideration receipt which is marked as Ex.D123 was got executed by the defendant.
14 OS.No.2233/201215. On perusal of the Ex.P1 agreement of sale whereby no time limit is prescribed in the document and even there is no recitals with regard to transfer of possession or when possession will be transferred. The present suit came to be filed on 28.3.2012 and the CC.No.18138/2012 ie., Ex.D1 is also came to be filed in the year 2012. From Ex.D1 it can be made out that cheque produced in the said case is dated 25.1.2012 whereby averments in the complaint makes out that accused therein did not come forward to execute the sale deed and later he informed that he is not interested to sell the property and issued cheque bearing No.322721 dtd.25.1.2012 for Rs.10 Lakhs. The cause of action for the suit as pleaded in the plaint is 15.6.2009 when the plaintiff demanded the defendant to execute the registered sale deed by receiving balance sale consideration amount. So this itself makes out that at the time of filing the present suit, cheque referred in Ex.D1 judgment came to be dishonoured as per endorsement dtd.31.1.2012. Inspite of cheque having dishonoured, this fact has not been pleaded by the plaintiff in the present suit and issue of cheque for return of earnest money had been suppressed by the plaintiff before this court. Accused in the said case is acquitted for the offences punishable u/s.138 of N.I.Act. whereby it is opined that since the plaintiff had filed the suit against the accused for specific performance of contract and he had paid earnest money of Rs.10 Lakhs to the accused as sale consideration amount and on the strength of 15 OS.No.2233/2012 agreement of sale he got filled the contents of Ex.P1 cheque for Rs.10 Lakhs taking undue advantage of blank signed cheque issued by the accused at the time of borrowing the loan of Rs.30,000/-. So since the complainant is having other remedy of alleged amount in a suit for specific performance of contract which had already been filed pending for adjudication, the complaint can get appropriate relief in the civil suit against the accused. So it is also held that the complainant had failed to prove that Ex.P1 cheque was issued by the accused. Though plaintiff herein had filed the above complaint whereby Ex.P2 cheque is dated 25.1.2012. When the defendant had lodged complaint as per Ex.D8 on 8.2.2008 itself question of issuing Ex.P2 cheque for return of earnest money is itself doubtful. In the copy of the complaint dtd.8.12.2008 which is furnished along with Ex.D8 makes out the defendant had seriously disputed the issuance of cheque for discharge of any liability. In the said complaint he had clearly stated that he had borrowed a sum of Rs.30,000/- in the month of May 2008 and at the time he had issued one blank cheque, one on demand promissory note and two 100 rupees blank stamp papers. So as the plaintiff was also called to the police station on the basis of Ex.D8 complaint it makes out that the plaintiff had come across that the defendant is disputing the alleged agreement of sale and also issuance of the cheque. Inspite of it though the said cheque is disputed, plaintiff herein had filed criminal case against the defendant 16 OS.No.2233/2012 herein in CC.18138/2012 for the offence punishable u/s.138 of N.I.Act.
16. Defendant by his defense and also by his oral evidence had seriously disputed the execution of the agreement of sale whereby he having handed over a signed blank stamp paper to the plaintiff at the time of borrowing the loan of Rs.30,000/- in the month of May 2008, then it is for the plaintiff to make out that a consideration amount had been passed from his to the defendant and inview of payment of the part consideration amount, Ex.P1 agreement of sale came to be executed by the defendant by acknowledging the said amount. When defendant having seriously disputing the said agreement and also he having already lodged complaint in the year 2008 itself plaintiff had remained silent for all these year ie., for a period of 4 years till2012 till filing present suit, and before filing the suit he got the cheque dishonoured, field complaint against the defendant. Though the said complaint came to be filed before filing present suit, nothing has been averred in the plaint with regard to the issuing of the said cheque by the defendant towards repayment of earnest money or with regard to the filing a complaint against the defendant in connection to the disputed cheque. On the other hand, even he had not produced any material documents to make out passing of consideration by him to the defendant as averred in his chief examination ie., payment of Rs.10 Lakhs. On the 17 OS.No.2233/2012 other hand, payment of part consideration itself is doubtful as in the cross examination he had stated that on the date of execution of agreement of sale he had paid Rs.3,50,000/- and prior to that he had paid Rs.2 Lakhs, nothing is explained in his evidence with regard to the payment of Rs.4,50,000/-. Further in the evidence PW2 had stated that on the date of execution of agreement of sale plaintiff had paid a sum of Rs.2,50,000/- and Rs.7,50,000/- was already paid long back. So in the circumstances, probabilities with regard to the execution of very document ie., Ex.P1 is not proved by the plaintiff. So when there is no material evidence to prove the contention of the plaintiff with regard to payment of part consideration amount of Rs.10 Lakhs. When defendant had seriously disputed the execution of the very document and the same having questioned by him in the year 2008 itself by lodging a complaint, there are no probabilities made out by the plaintiff to prove his fact that defendant had executed Ex.P1 agreement of sale by receiving part consideration amount of Rs.10 Lakhs. Hence the plaintiff has failed to prove the said fact.
17. Now coming to the fact of ready and willingness by the plaintiff whereby as discussed supra there are no reasons to believe that plaintiff had paid part consideration amount of Rs.10 Lakhs to the defendant, here it is the contention of the plaintiff that total consideration amount as agreed is Rs.15 Lakhs, out of which Rs.10 Lakhs is paid. The recitals of Ex.P1 18 OS.No.2233/2012 does not makes out anything with regard to the time as to when sale deed has to be executed. it is also averred by the plaintiff that balance sale consideration amount of Rs.5 Lakhs shall be paid at the time of execution of registered sale deed. It is also his contention that in spite of repeated request, defendant had failed to executed registered absolute sale deed by receiving balance sale consideration amount. When the defendant had lodged complaint as per Ex.D8 on .12.2008 and he had called to the police station as per Ex.D9 on 10.12.2008, makes out that plaintiff is having knowledge that the defendant is disputing the very document as in the complaint he had clearly stated that he had issued signed blank stamp papers by holding the said document, plaintiff herein is threatening him. So lodging of the complaint on 8.12.2008 is itself the date of refusal. But to make out the contention of the plaintiff that he was every ready to perform his part of contract, he had not placed any documents to make out that he was having funds of Rs.5 Lakhs with him to get the sale deed executed when he requested the defendant to get is done. He had not produced his account statement nor any other document to make out availability of funds. At this juncture this court wants to rely on the decision reported in ILR 2016 KAR 2252 - Sri.Punny Akat Philip Raju, Since dead by his LRs., Vs. Sri Dinesh Reddy, wherein it is held as follows:
19 OS.No.2233/2012Sec.16(c) Specific Relief Act - Requirement of - plaintiff to satisfy the court that he is ready and willing to pay the balance sale consideration to the defendant - plaintiff to produce the documentary evidence to prove his financial capacity - Court gets no jurisdiction to pass a decree for specific performance unless the plaintiff proves that he is ready and willing to perform his part of the contract
- Absence of material before the court that he plaintiff actually possessed requisite funds to pay the balance sale consideration.
As per the above referred decision unless plaintiff proves that he is ready and willing to perform his part of contract in the absence of any material evidence before court that plaintiff actually possessed requisite funds to pay balance sale consideration amount, then in such circumstances plaintiff is not entitled to the relief of specific performance of contract. Plaintiff has to satisfy the court that he possessed requisite funds. He has to produce the documents which would enable the court to come to the conclusion that he is ready with the requisite balance sale consideration to complete the sale transaction. So if no such document is produced no prudent man would come to the conclusion that the person has proved the possession of funds. So in the circumstances plaintiff has also failed to prove his readiness and willingness to perform his part of contract. Hence I answer issue No.1 & 2 are in the negative.20 OS.No.2233/2012
18. Issue No.3: Plaintiff having failed to prove issue No.1 & 2, he is not entitled for the relief of specific performance of contract as prayed. Hence I hold issue No.3 in the negative.
19. Issue No.4: In the result I pass the following:
ORDER Suit of the plaintiff is hereby dismissed. Parties are directed to bear their own costs. Draw decree accordingly.
[Dictated to the Judgment Writer in the open court, computerised, and print out taken by him, corrected and then pronounced by me, this day the 17th March 2018.
(M.PANCHAKSHARI.) XVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU ANNEXURE
1. No.of witnesses examined on behalf of plaintiff/s:
PW1 : B.Subramani PW2 : B.Somashekar
2. No.of documents marked on behalf of plaintiff/s:
Ex.P1 : Agreement of sale dtd.16.3.2009 Ex.P1(a) to (h): Signatures Ex.P2 : Certified copy of cheque
3. No. of witnesses examined on behalf of defendant/s:
DW1 : B.Ganesh Prasad
4. No. of documents marked on behalf of defendant/s:
Ex.D1 : CC of judgment in CC 18138/2012
Ex.D2 : Copy of undertaking letter given in police station
21 OS.No.2233/2012
Ex.D3 : Release deed executed by defendant
Ex.D4 : CC of order passed in WP.No.25768/2010
Ex.D5 : CC of order sheet in OS.no.5354/2006
Ex.D6 : CC of decree in OS.No.5354/2006
Ex.D7 : Marriage invitation card
Ex.D8 : CC of receipt for lodging the complaint
Ex.D9 : CC of police endorsement
Ex.D10 : Loan repayment letter
Ex.D11 : Cancelled original cheque
Ex.D12 : Cancelled On-demand promissory note & Consideration receipt Ex.D13 : Letter written to the manager XVIII Addl. City Civil Judge Bangalore City.22 OS.No.2233/2012
Judgment pronounced in the open court vide separate judgment. The operative portion of judgment reads thus:
ORDER Suit of the plaintiff is hereby dismissed.
Parties are directed to bear their own costs.
Draw decree accordingly.
XVIII Addl.C.C. & S.J., Bangalore