Bangalore District Court
Sri. A.R.S.Chandran vs Smt. Kantha Bai on 23 February, 2016
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
Dated this the 23rd day of February 2016.
PRESENT: S.V.KULKARNI, B.Com., LLB(Spl)
XI Addl.City Civil Judge, B'lore city.
O.S.No.4764 OF 2008
C.C.H.8
PLAINTIFF: Sri. A.R.S.Chandran,
S/o A.K.Rajalingaraja,
aged about 38 years,
Residing at No,9/1
G.M.Temple Street, 1st Main Road,
Matadahalli,
Bangalore-32
(By Sri.B.G. advocate
: Vs :
DEFENDANTS: 1. Smt. Kantha Bai
W/O Late A.Panduranga Rao,
aged about 60 years,
2. Smt. Manjula Bai
D/O Late A.Panduranga Rao,
aged about 45 years,
3. Sri. Rajkumar
S/O Late A.Panduranga Rao,
aged about 34 years,
4. Miss.Leela,
D/O Late A.Panduranga Rao,
aged about 34 years,
2 OS. No.4764 of 2008
5. Sri.Lokesh
S/O Late A.Panduranga Rao,
aged about 32 years
All are residing at No.4/1,
II Main Road, Matadahalli,
Bangalore-32
(By Sri. K.P.A.K, advocate)
Date of the institution of suit: 18.7.2008
Nature of the suit: Specific performance
Date of the commencement of 23.8.2011
recording of the evidence :
Date on which the judgment 23.02.2016
was pronounced :
Total duration: Year/s Month/s Day/s
07 07 05
XI Addl.City Civil Judge,
B'lore city.
JUDGMENT
This is the suit filed by the plaintiff against defendants seeking the relief of specific performance of contract in respect of alleged sale agreement dated 13.12.2005 said to have been executed by the defendants in respect of suit schedule property and plaintiff has sought for direction to the defendants to execute sale deed by receiving balance sale 3 OS. No.4764 of 2008 consideration amount and plaintiff has prayed for other consequential reliefs of permanent injunction against defendants as prayed in the plaint.
2. The case of the plaintiff as stated in the plaint averments briefly stated as follows:-
The subject matter of the alleged agreement of sale dated 13.12.2005 is in respect of house property described in the plaint schedule with more particulars along with boundaries , which reads as follows:-
SCHEDULE All that piece and parcel of the House property bearing old No.42 and presently bearing Municipal No.4/1, II Main Road, Division No.97, Matadahalli, Bengaluru -32 measuring on east-west 40 feet or 12.19 meters and north-south 15 feet or 4.57 square meters and bounded as under:-
East by: Private property;
West by: Road;
North by: Private Property, South by: Private Property.
The plaintiff has alleged that the defendants are the absolute owners and are in possession and enjoyment of house property bearing No.4/1 (Old No.42) situated at 2nd Cross, ward No.97, Matadahalli, Bengaluru measuring 40' X 15' 4 OS. No.4764 of 2008 along with building constructed therein consisting of ground and first floor and this property is the house property described in the schedule annexed to the plaint and this property herein after referred to as suit schedule property for the sake of convenience bearing No.4/1.
It is the case of the plaintiff that the defendants had approached him and represented that originally the suit schedule property was the self acquired property of husband of 1st defendant and father of defendant No.2 to 5 i.e., Sri.A.Pandurganga Rao and subsequent to purchase of schedule property by original owner Sri.A.Pandurganga Rao, he had applied for getting katha and revenue records transferred into his name and accordingly, BBMP had transferred katha and other revenuer records in the name of Sri.A.Pandurganga Rao in respect of suit schedule property and defendants had further represented the plaintiff that pursuant Sri.A.Pandurganga Rao getting the katha and other revenue records transferred into his name, he was in peaceful possession and enjoyment of suit schedule property along with defendants and subsequently Sri.A.Pandurganga Rao died intestate leaving behind defendant No.1 to 5, who are wife and children of late Sri.A.Pandurganga Rao as his legal heir, who have succeeded to the estate of the deceased Sri.A.Pandurganga Rao and defendants have inherited the suit schedule property and perfected their title by way of succession 5 OS. No.4764 of 2008 and thereby defendant got mutated their name in the katha extract of the schedule property and katha was entered in the name of 1st defendant and defendants also informed the plaintiff that the suit schedule property is free from all encumbrances, attachments, court or acquisition proceedings or charges of any kind and they have not entered into an agreement of sale with any one else. Hence, on this representation of the defendants, the plaintiff expressing his intention to purchase the schedule property, wherein defendants have decided to alienate the schedule property in order to meet their immediate urgent financial crises and plaintiff being satisfied with the title of the plaintiff over the schedule property as plaintiff was in need of the house property had accepted the offer and agreed to purchase the schedule property after mutual discussion and sale negotiations held between plaintiff and defendants, wherein defendants agreed to sell the schedule property for a total sale consideration amount of Rs.10,00,000/- and accordingly, plaintiff entered into agreement of sale with defendants on 31.12.2005 and under the said agreement, plaintiff has paid a sum of Rs.3,00,000/- as advance sale consideration amount by way of cash and defendants have jointly acknowledged the said amount received by them by signing the sale agreement and plaintiff has relied upon the sale agreement dated 13.12.2005 along with katha extract and katha certificate as per document No.1 to 3. The plaintiff further alleged that after 6 OS. No.4764 of 2008 some time, he came to know that 1st defendant and late Sri.A.Pandurganga Rao had first son by name Smt. Neela and immediately plaintiff requested the defendants to get the consent of Smt. Neela and to present her before the Sub Registrar , office at the time of registration of the sale deed, though the defendants agreed to get the consent of Smt. Neela, but subsequently the defendants have not responded properly. The plaintiff has pleaded his readiness and willingness to perform his part of contract subsequent to entering into agreement of sale and though defendants are duty bound to execute sale deed in favour of plaintiff or in the name of his nominees in respect of suit schedule property by receiving balance sale consideration amount within three months as per the terms of the sale agreement, but the defendants for the reasons best known to them, they have not performed their part of contract obligations. The plaintiff further pleaded that in terms of the continuation of agreement of sale, plaintiff was/is ready and willing to purchase the schedule property by paying balance sale consideration amount as per agreement of sale dated 13.12.2005 and plaintiff in this regard demanding the defendants to execute sale deed by performing their part of contract every now and then during the subsistence of the contract, but the defendants evaded the execution of sale deed and have failed to perform their part of contract and defendants gave deaf ears to the request made by the plaintiff and as such, during such 7 OS. No.4764 of 2008 interregnum the time stipulated under the agreement of sale was completed by efflux of time. The plaintiff has alleged that the time is the essence of contract in view of continuous demand made by him. Inspite of lapse of time stipulated under the agreement of sale, the defendants have been promising and assuring the plaintiff of execution of sale deed and also they further assured of taking consent of Smt. Neela. But thereafter, plaintiff came to know that defendants are purposely evading from carrying out their duties cast upon them and they failed to perform their part of contract only to cause wrongful loss to the plaintiff and defendants are trying to alienate the suit schedule property in favour of 3rd parties so as to deprive the plaintiff of his legitimate right over the schedule property so as to take undue advantage of the innocence of the plaintiff and thereafter, immediately plaintiff caused legal notice to the defendants on 1.4.2008 and thereby expressing his readiness and willingness and also called upon the defendants to confirm about their readiness and willingness about the sale deed in respect of suit schedule property by receiving balance sale consideration amount in terms of agreement of sale dated 13.12.2005 and to execute sale deed by producing necessary and required documents and the said notice was sent to the defendants by way of RPAD and hence, plaintiff relied upon office copy of legal notice dated 1.4.2008 and RPAD receipts produced by him as per document No.4 and 5. The registered notices issued to the defendants were returned unserved with 8 OS. No.4764 of 2008 postal share "Intimation Delivered Not claimed" and he has produced returned postal RPAD cover as per document No.6 to 10 respectively. It is alleged by the plaintiff that he has reliably learnt that the defendants making hectic efforts to dispose of the suit schedule property in favour of 3rd parties disregarding the agreement of sale executed by them in favour of plaintiff and defendants are in hurry to create encumbrance/charge over the suit schedule property. Hence, plaintiff alleging cause of action for filing the suit arose on the date of agreement of sale i.e., 13.12.2015 and subsequently when he has caused legal notice on 1.4.2008 and hence, plaintiff alleging cause of action constrained to file the suit for specific performance of contract seeking direction to the defendants to execute regular registered sale deed in respect of suit schedule property and for consequential permanent injunction relief against defendants restraining them from alienating/creating any 3rd party interest or creating any charge over the suit schedule property in favour of any 3rd parties. Hence, this suit.
3. In response to the suit summons issued in this case, the defendants appeared and filed their written statement and contending that the suit is misconceived besides being speculative and hence, suit is not maintainable either in law or on facts of the case and defendants without prejudice to the above contention, they have denied the execution of 9 OS. No.4764 of 2008 alleged sale agreement with plaintiff on 13.12.2005 agreeing to sell the schedule property for a total sale consideration amount of Rs.10,00,000/- and they have received part sale consideration amount of Rs.3,00,000/- by way of advance from the plaintiff and defendants also denied that they represented to the plaintiff and assured of getting consent of Smt. Neela, who is wife of Sri.Amarnath , the son of original owner Sri.A.Pandurganga Rao to the sale deed to be executed and hence, defendants have denied the contention of the plaintiff that the defendants have executed sale agreement offering the schedule property for sale of Rs.10,00,000/- and agreed to convey sale deed by execution of sale deed within three months by performing their part of contract. Hence,d es have specifically denied the execution and attestation of sale agreement in favour of plaintiff dated 13.12.2005. The defendants further contended that in fact Sri. Harihara Krishnan, the brother-in-law of plaintiff had entered into agreement of sale on 14.6.2005 in respect of suit schedule property with 1st defendant and he has paid Rs.3,00,000/- by way of earnest money/deposit. However the said Sri. Harihara Krishnan despite repeated reminders by the defendants failed to pay balance amount and to get the sale deed registered in his favour with the result, the first defendant forfeited the earnest amount of Rs.3,00,000/-. The plaintiff taking advantage of the relationship with Sri. Harihara Krishnan by coercion and undue influence on 10 OS. No.4764 of 2008 all the defendants and in particular on defendant No.3 and 5, who are mentally weak and highly unstable got the agreement of sale dated 13.12.2005 executed showing consideration as Rs.10,00,000/- though the actual market value of the property was around Rs.50,00,000/- without paying any advance amount and curiously the plaintiff did not get the sale deed executed by paying balance sale consideration amount in time and besides treating the agreement of sale dated 13.12.2005 as cancelled, plaintiff started pestering the defendants for the return of deposit amount of Rs.3,00,000/- paid by his brother-in-law at the time of sale agreement dated 14.6.2005 along with Rs.1,50,000/- being interest and liquidated damages and since defendants for want of funds pleaded their inability to pay the amount and plaintiff by coercion collected from the 4th defendant three cheques bearing No. 828712, 828713 and 828714 dated 10.7.2005, 22.12.2005 and 5.1.2006 for sum of Rs.1,50,000/- each drawn on R.T.Nagar Branch of ICICI Bank, wherein the said cheques were bounded and plaintiff filed criminal case in C.C.No.14340/2006 against 4th defendant and the Hon'ble Court ordered that the 4th defendant to pay a fine of Rs.5,00,000/-, failing which to undergo simple imprisonment for six months and after the above order was confirmed in criminal appeal, wherein 4th defendant has served the sentence of six months granted on conviction. In the aforesaid circumstances, firstly the plaintiff 11 OS. No.4764 of 2008 has not paid any advance amount to the defendants at the time of execution of alleged sale agreement and even in regard to the advance amount paid by Sri. Harihara Krishnan, the brother-in-law of plaintiff of Rs.3,00,000/- at the time of execution of sale agreement dated 14.6.2005 and pursuant to the order made in Crl.A No.931/2007 affirming the order made in C.C.No.14340/2006, wherein 4th defendant has undergone imprisonment of six months and as such, the plaintiff having got the agreement of sale dated 13.12.2005 obtained by exercising coercion and undue influence on defendants and having thereafter treated the agreement of sale as cancelled and sought for payment of the advance amount paid by his brother-in-law Sri. Harihara Krishnan along with damages of Rs.1,50,000/-. Hence, plaintiff is not entitled for specific performance of contract in respect of alleged agreement dated 13.12.2005 and even otherwise admittedly the plaintiff having not paid balance sale consideration amount due under the alleged agreement within stipulated time and get executed sale deed. Hence, the earnest amount has been forfeited and plaintiff has forfeited his right to enforce the agreement against defendants and plaintiff is guilt of inordinate delay, fraud and misrepresentation and as such, viewed from any angle, the plaintiff is not entitled for any discretionary relief of specific performance of contract. Hence, defendants by this defense have resisted the suit and pray for dismissal of the suit.
12 OS. No.4764 of 20084. Based upon these pleadings, the following issues are framed for trial of the suit :-
1. Whether the plaintiff proves that the defendants has entered into an agreement to sell the suit schedule property in his favour for consideration of Rs.10 lakhs and received a sum of Rs.3 lakhs as advance and executed an agreement of sale dated 31-12-2005?
2. Whether the defendants proves that the plaintiff by exercising undue influence and coercion got the agreement of sale dated 31-12-2005 from them?
3. Whether plaintiff proves that he has always been ready and willing to perform his part of contract?
4. Whether the plaintiff is entitled for the relief of specific performance of contract?
5. What decree or order?
5. In order to prove the above issues, the parties to the suit have adduced their respective oral and documentary evidence, wherein plaintiff himself is examined in this case and got marked Ex.P.1 to P.14 and with this evidence, plaintiff side evidence is closed. Thereafter, defendant No.4 is examined as D.W.1 on behalf of defendants and Ex.D.1 the certified copy of judgment and decree in O.S. No.1022/2003 on 13 OS. No.4764 of 2008 the file of CCH No.10 is marked as per Ex.D.1 and with this evidence, defendants evidence is taken as closed. Thereafter the suit is posted for arguments.
6. Heard the arguments of both sides and counsel for plaintiff has relied upon the following three decision filed along with memo dated 9.2.2016 and counsel for defendants also submitted citations along with memo filed on 27.1.2016 and also on 6.2.2016 and counsel for defendants also submitted written submissions filed in the suit on 4.2.2010.
In support of his case, the counsel for plaintiff has relied upon the following decisions:-
1. 2002 (1) SCC 134 (Veerayee Ammal Vs. Seeni Ammal)
2. 2007(1) AIR Karnataka R 146 (Yallappa Vs. Durgappa)
3. 2012 AIR SCW 2999( Narinderjit Singh Vs. North Star Estate Promoters Limited) In support of his case, the counsel for defendants has relied upon the following decisions:-
1. LAWS (SC)-2015-4-59( Padmakumari and others Vs. Dasayyan and others)
2. AIR 1995 Sale Certificate 945 (Jugraj Singh and another Vs. Labh Singh and others);
3. ILR 2014 Karnataka 233((Padmini Raghavan Vs. Mr. H.A.Sonnappa since dead by his LRs and others ) 14 OS. No.4764 of 2008
4. 2010(3) AIR Karnataka R 799(Basappa Munnoli Vs. Balraj Mittal)
7. After receiving the written arguments filed by the defendants and after hearing the reply arguments and on appreciation of the evidence placed on record that of P.W.1 and documents Ex.P.1 to P.14 and rebuttal evidence of D.W.1 and Ex.D.1 and considering the written arguments and arguments of counsel for plaintiff and on appreciation of evidence, I answer the above issues are as follows:-
Issue No.1: In the negative
Issue No.2: In the affirmative:
Issue No.3 In the negative
Issue No.4 In the negative
Issue No.5 Suit filed by the plaintiff deserves to be
dismissed for the following reasons:-
REASONS
8. Issue No.1 and 2: Since these issues No.1 and 2 are the bone of contention raised by the parties in the suit, wherein it is the case of the plaintiff that defendant No.1 to 5 being absolute owners in possession and enjoyment of the suit schedule property having succeeded to the suit schedule property after demise of Sri. A.Panduranga Rao, husband of first defendant and father of defendant No.2 to 5, who died on 15 OS. No.4764 of 2008 14/10/1998 leaving behind defendant No.1 to 5 as his legal heirs and as such defendant No.1 to 5 having marketable title agreed to sell the suit schedule property for their urgent legal necessity and have executed sale agreement dated:
13/12/2005 and defendants agreed to convey the suit schedule property consisting of residential property for total sale consideration of Rs.10,00,000/- and plaintiff has paid part sale consideration amount of Rs.3,00,000/- to the defendants on 13/12/2005 itself and defendants agreed to execute regular sale deed in favour of plaintiff within 6 months from 13/12/2005 by receiving balance sale consideration amount of Rs.7,00,000/- from the plaintiff. But, the defendants have failed to perform their part of obligation though plaintiff was ready and willing to perform his part of contract to get sale deed to defendants by paying sale consideration amount and plaintiff relied upon legal notice caused to the defendants dated: 1/4/2008 and it is also the case of the plaintiff that one of the eldest son of deceased A.Panduranga Rao namely Amarnath died and his wife Neela and his daughter Pooja are having right, title and interest in the suit schedule property and though defendants have agreed to get the consent of wife of Amarnath, daughter in law of A.Panduranga Rao for the sale deed to be executed, but, defendants failed to get the consent of Smt. Neela and hence, time was not the essence of contract though 3 months time has been stipulated in the agreement of sale, hence, 16 OS. No.4764 of 2008 plaintiff relied upon cause of action after issuance of Legal notice dated: 1/4/2008 for the suit for specific performance of contract against defendant No.1 to 5 and plaint was presented by the plaintiffs for specific performance of agreement of sale dated: 13/12/2005. The defendants appeared and denied the case of the plaintiffs and defendants specifically denied the execution of sale in favour of plaintiff and also denied the receipt of earnest amount of Rs.3,00,000/- on 13/12/2005 and they contended that, they have executed sale agreement in favour of plaintiff's brother- in-law one Sri. Hariharakrishnan by executing sale agreement dated: 13/12/2005 for Rs.10,00,000/- and due to breach of terms of contract by Sri. Hariharakrishnan suit sale transaction was cancelled between plaintiffs and K.J.Hariharakrishnan and advance amount of Rs.3,00,000/- was forfeited by the defendants and hence, defendants have denied the execution of alleged sale agreement in favour of plaintiff and on the contrary, they have taken specific contention that plaintiff who is related to K.J.Hariharakrishnan who was pressing for payment of amount of 3 lakhs and in this regard defendants have issued 3 cheques and it was agreed to refund the amount of 3 lakhs along with damages quantified for Rs.1,50,000/- and accordingly, defendants have issued three cheques bearing No. 828712, 828713,828714 dated 10/7/2005, 22/12/2005 and 5/1/2006 for Rs. 1,50,000/- each drawn on ICICI Bank, 17 OS. No.4764 of 2008 R.T.NagarBranch,Bengaluru and since the said cheques were bounced wherein plaintiff filed criminal case in C.C.No.124340/2006 against 4th defendant before criminal court for the offence under section 138 of N.I. Act and in that case, there was conviction order passed against defendant No.4 and also fine of Rs.5,00,000/- was imposed and it was ordered against defendant No.4 that she should pay Rs.5,00,000/- fine amount and on failure to pay said amount, she should undergo 6 months imprisonment for six months and though criminal appeal was preferred against judgment and order of conviction in C.A.961/2007 wherein the order of conviction passed by the trial court was confirmed by dismissal of criminal appeal and accordingly, 4th defendant has undergone imprisonment for 6 months as such plaintiff has got agreement of sale dated: 13/12/2005made by exercising coercion and undue influence on defendants and having thereafter treated the agreement of sale as cancelled and sought for payment of the advance amount paid by his brother-in-law K.J.Hariharakrishnan along with damages of Rs.1,50,000/- and hence, defendants denied the receipt of Rs.3,00,000/- amount paid by the plaintiff on 13/12/2005 and even otherwise, defendants contended that, the plaintiff has failed to prove his readiness and willingness and plaintiff was not having financial capacity to pay balance sale consideration amount of Rs.7,00,000/- and hence, 4th defendant has denied readiness and willingness as pleaded by 18 OS. No.4764 of 2008 the plaintiff and it is contended that, the suit schedule property worth value of Rs.50,00,000/- as on the date of alleged sale agreement and hence, defendants contended that, case made out by the plaintiff and alleged execution of sale agreement is by exercising coercion and undue influence and hence, defendants have denied the case of the plaintiff and also contended that plaintiff was knew about the suit filed by Neela for partition in order to claim share of her husband, deceased Amarnath in the suit schedule property in O.S.No.1022/2005 wherein that suit was filed by Smt. Neela as minor guardian represented by her minor daughter Kum.Pooja on 7/2/2005 itself. Hence, defendants have resisted this suit contending that, alleged agreement of sale is created by plaintiff who is related to K.J.Hariharakrishnan and with this defence parties have adduced their respective original and documentary evidence in support of their respective contentions.
9. Plaintiff himself is examined as P.W.1 by filing affidavit evidence under Order 18 Rule 4 of C.P.C and on perusal of evidence deposed by P.W.1, wherein he has reiterated the facts as stated in the pleadings and P.W.1 deposed that first defendant after demise of her husband with the consent of other legal heirs of Sri. A.Pandurangarao got mutated her name in katha extract vide order dated:
11/2/2003 and defendants have derived title over the suit 19 OS. No.4764 of 2008 schedule property and P.W.1 also stated that previously there was sale transaction entered into with his brother-in-law K.J.Hariharakrishnan, wherein it was mutually agreed terms was reduced into writing by way of entering into contract of agreement of sale dated:1/12/2004 under which the defendants have received 3 lakhs advance sale consideration amount from K.J.Hariharakrishnan and agreed to complete the sale transaction within 6 months and though his brother- in-law K.J.Hariharakrishnan was ready and willing to perform his part of the obligation, but, defendants have failed to perform their part of obligation, as such fresh agreement was entered into between first defendant and K.J.Hariharakrishnan in continuation of the earlier agreement and to the said agreement, P.W.1 1was the witness and pursuance to the sale agreement dated: 14/6/2005, defendants failed to perform their part of contract obligation in order to execute sale deed in favour of his brother-in-law K.J.Hariharakrishnan for the reasons best known to defendants and during interregnum time his brother-in-law expressed his unwillingness to proceed further in terms of agreement of sale dated: 14/6/2005 and as such he had planned to go abroad and as such considering the failure on the part of defendants to perform their part of obligation, wherein he demanded to repay the entire advance amount paid under agreement of sale dated: 14/6/2005 and thereafter defendants approached him and requested to 20 OS. No.4764 of 2008 purchase suit schedule property and he agreed to purchase the same for Rs.10,00,000/- and he has paid advance money of Rs.3,00,000/- so as to enable the defendants to repay the amount payable to K.J.Hariharakrishnan and accordingly, P.W.1 stated that defendants have executed sale agreement on 13/12/2005 and he has paid Rs.3,00,000/- as advance sale consideration amount by way of cash and thereby he agreed to pay balance sale consideration amount to the defendants at the time of execution of sale deed in his favour and hence, P.W.1 deposed regarding execution of sale agreement in his favour on 13/12/2005 and also previous agreement of sale which was cancelled executed in the name of his brother-in-law K.J.Hariharakrishnan dated: 1/4/2005 and 14/6/2005. Hence, P.W.1 has deposed regarding execution of sale agreement dated: 13/12/2005 and also stated that, time was not essence of contract as defendants failed to get the consent of Smt. Neela, wife of Amarnath for the sale deed to be executed by them. Hence, there is delay in issuance of Legal notice and accordingly, P.W.1 stated that he has caused Legal notice on 1/4/2008. Hence, Legal notice sent to the address of defendants, wherein defendants have refused to receive Legal notice. Hence, plaintiff P.W.1 prays to grant a decree of specific performance against defendants 1 to 5 in respect of suit schedule property and P.W.1 stated that time fixed under agreement of sale was not essence of contract and P.W.1 also stated his readiness and willingness 21 OS. No.4764 of 2008 to pay balance sale consideration amount and P.W.1 got marked documents as per Ex.P.1 to 14 marked through his evidence and the said documents Ex.P.1 to 14 are as follows:
Ex.P.1 Agreement of sale dated 13.12.2005
executed by defendant in favour of
plaintiff
Ex.P.2: Katha extract in respect of suit
schedule property
Ex.P.3 Katha certificate in respect of suit
schedule property
Ex.p.4: Legal notice dated 1.4.2008 issued by
advocate for plaintiff to defendants
Ex.P.5 to P.9 Postal receipts
Ex.P.10 to P.14 Unserved postal covers
10. Counsel appearing for defendants cross-examined P.W.1 on 2/2/2012 wherein P.W.1 admits that he is B.Com., graduate and working in Hotel as Receptionist and from 2007 he is paying income tax and in 2005, he was not income tax assessee and P.W.1 stated that, during 22005, his annual income was in between 2-3 lakhs and in the year 2005, his annual income was not Rs.2,00,000/-, hence, he could not paid any tax and P.W.1 admits that he has got bank account in Amarnath Bank and he admits that in the year 2005, in his bank account there was minimum balance of Rs.20,000/-
was standing in his credit at all time and P.W.1 stated that his father had contributed some amount paid towards earnest money to the defendants and remaining amount has been adjusted by him, wherein P.W.1 stated that his father has 22 OS. No.4764 of 2008 contributed 1.5 lakhs out of earnest amount paid by him on 13/12/2005 an defendant remaining 1.5 lakhs he ahs got adjusted the amount on 13/12/2005 and P.W.1 admits that he did not draw Rs.1.5lakhs from his bank account and P.W.1 stated that he ahs adjusted that amount out of different transaction and he ahs obtained amount of Rs.1,50,000/- through cheque transaction and P.W.1 stated that he was intended to pay advance amount to the defendants through cheque transaction as it was stake amount. But, defendants have insisted for payment of cash and accordingly, he has paid the earnest amount of 3 lakhs by way of cash and P.W.1 denied that he has no money at his disposal to pay earnest amount to the defendants and he has not paid any amount on 13/12/2005 and P.W.1 admits that he ahs not pleaded in the pleadings regarding his father has contributed half of the amount paid towards earnest money ie., 1.5 lakhs. P.W.1 admits regarding previous agreement of sale entered into between defendants with his brother-in- law(his wife's brother) namely K.J.Hariharakrishnan on 14/6/2005. But, P.W.1 denied the suggestion that, his brother-in-law did not pay balance sale consideration amount and accordingly, defendants have forfeited the advance amount paid under sale agreement dated: 14/6/2005 and they have cancelled the said agreement of said agreement of sale entered with K.J.Hariharakrishnan.
23 OS. No.4764 of 200811. Counsel for plaintiff further cross-examined P.W.1 on 31/7/2013 wherein P.W.1 denied the agreement of sale dated: 14/6/2005 was cancelled division he insisted the defendants for payment of advance money and obtained cheques in his name and P.W.1 further denied that he ahs received 3 cheques from defendants for Rs.1.5lakhs each which was consisted of 3 lakhs earnest money + 1.5 lakhs towards damages. Counsel for defendants posed a question to P.W.1 that he ahs prosecuted defendant No.4 in cheque bounce case in criminal proceedings and defendant No.4 was convicted in that proceedings for which P.W.1 has answered stating that, there is no nexus between that transaction and suit agreement dated: 13/12/2005 and the witness volunteers that, said cheques were pertaining to hand-loan transaction of the year 2005 between himself and defendant No.4 of this case. P.W.1 denied that he is money lender lending loans on interest basis and P.W.1 denied the suggestion that, he ahs not entered into agreement of sale dated: 13/12/2005 with defendant No.1 to 5 and P.W.1 further denied that, on 13/12/2005 he has not parted with any money towards earnest amount to the defendants and the amount tendered by his brother-in-law K.J.Hariharakrishnan was treated as advance amount and he has not given any documents to show that he was having financial capacity of paying 3 lakhs as on 13/12/2005 and P.W.1 admits that he has not produced that document to 24 OS. No.4764 of 2008 show that he ahs paid 3lakhs to his relative namely K.J.Hariharakrishnan and P.W.1 denied that as his brother- in-law K.J.Hariharakrishnan did not perform his part of contract and defendants have forfeited the advance money paid by K.J.Hariharakrishnan under agreement of sale dated:
14/6/2005 and hence, the defendants were not bound to pay any money to K.J.Hariharakrishnan. It is denied by P.W.1 that defendants were not laible to pay any amount to K.J.Hariharakrishnan and P.W.1 himself has pretended that having paid earnest amount of 3lakhs to his brother-in-law and created suit agreement Ex.P.1 and P.W.1 admits that sale agreement Ex.P.1 was signed by defendant No.4 and 5 only and P.W.1 denied that as his relative ie., brother-in-law K.J.Hariharakrishnan had entered into contract with defendants and that sale transaction was not concluded and as such he could not have entered into any sale agreement with defendants and he ahs created the suit agreement Ex.P.1. P.W.1 stated that he do not know whether daughter- in-law of father of defendant No.2 to 5 had filed a suit and obtained decree for partition and separate possession in osn1022/2005.
12. Again P.W.1 is further cross-examined by counsel for defendants, wherein he admits that he has instructed his counsel to file a suit and on the instructions given by him, his counsel has prepared affidavit evidence and he has read over 25 OS. No.4764 of 2008 the contents of affidavit and also contents of plaint and then signed, verified and filed in this suit. P.W.1 further admits that, in para-7 of the plaint that he has pleaded that first defendant and late A.Panduranga rao had first son by name Amarnath who is no more and the wife of Amarnath namely Neela had not signed the agreement Ex.P.1 and hence, on that count, execution of sale deed was postponed and P.W.1 admits regarding three months time stipulated in agreement Ex.P.1 and P.W.1 stated voluntarily that wife of Amarnath did not sign the agreement of sale. Hence, the sale deed execution was postponed and P.W.1 denied that wife of Amarnath namely Neela had a daughter by name Pooja, who is having right, title and interest over the suit schedule property and he denied that he has not issued any Legal notice to the wife of Amarnath namely Neela and he admits that he has got impeladed the wife of Amarnath and his daughter as party defendants in this suit and P.W.1 stated that, defendants have assured of keeping Smt. Neela and her daughter for execution of sale deed and hence, he has not issued Legal notice in favour of wife of Amarnath and he denied that Smt. Neela never agreed to given her consent by appearing before Sub-Registrar office in execution of sale deed and he deposed voluntarily that fact of matter and P.W.1 denied that the value of suit schedule property during the year 2005 was about 25 lakhs and P.W.1 denied the suggestion that defendants 1 to 5 had not any compelling 26 OS. No.4764 of 2008 circumstances of offering the suit schedule property for sale for consideration of Rs.10,00,000/- in the year 2005 and P.W.1 denied that as he did not get execute sale deed within stipulated period of 3 months and P.W.1 admits that he has not produced documentary evidence to show that he is having financial capacity to pay balance sale consideration amount and to get executed sale deed and he admits that he has not produced any documents to show that he father was ready to pay amount to him and he admits that, he has not obtained money lending licence for money lending business and P.W.1 denied that as he was not knowing defendant No.4 henc,e they could not have been hand-loan transaction and P.W.1 denied that he has not paid any amount to defendants inturn they have not executed any document and on the contrary, Ex.P.1 is created agreement of sale and P.W.1 denied that he has no financial capacity to pay balance sale consideration amount and hence he has not deposited the said amount in this proceedings. P.W.1 further denied that though defendants have not executed any agreement of sale wherein he ahs foisted false suit against the defendants in order to snatch away the property worth Rs.25 lakhs.
13. Defendant No.4 has given rebuttal evidence as he is examined as D.W.1, wherein D.W.1 deposed in her evidence on her own behalf and also on behalf of other defendants, wherein D.W.1 denied the execution and attestation of Ex.P.1 27 OS. No.4764 of 2008 in favour of plaintiff on 13/12/2005 and also she denied the receipt of earnest amount of Rs.3,00,000/- in Ex.P.1 transaction and on the contrary. D.W.1 stated that there was sale agreement entered into by them with brother-in-law of plaintiff namely K.J.Hariharakrishnan on 14/6/2005 and since brother-in-law of plaintiff did not perform his part of contract faield to execute sale deed and accordingly, the said agreement of sale was cancelled, adjusted between defendants and K.J.Hariharakrishnan. Hence, D.W.1 denied the execution of Ex.P.1 in favour of plaintiff and she has also stated that, the suit schedule property worth around Rs.50 lakhs and D.W.1 stated regarding issuance of cheques for Rs.1,50,000/- towards refund of earnest amount in respect of sale agreement dated: 13/12/2005 + liquidated damages accrued for Rs.1,50,000/- of ICICI Bank, R.T Nagar Branch, Bengaluru and the said cheques were bounced and plaintiff has filed a criminal case against her in C.C.No.14340/2006 for payment of cheque amount wherein court has ordered to pay fine of Rs.5,00,000/- and in default to pay that amount, it was ordered to suffer simple imprisonment for 6 months and she preferred criminal appeal which was also dismissed by confirming trial court conviction and accordingly, D.W.1 stated that she has served the imprisonment against her in C.C.No.14340/2006 for 6 months simple imprisonment. Hence, in these aforesaid circumstances, plaintiff has not paid advance amount on the same day of agreement of sale 28 OS. No.4764 of 2008 and even in respect of advance amount paid by P.W.1's brother-in-law K.J.Hariharakrishnan at the time sale agreement dated: 11/6/2005, 9/1/2007 affirming the order made in the criminal case and D.W.1 has stated that criminal appeal was disposed off on 9/1/2007 and she has already undergone simple imprisonment for 6 months. Hence, the plaintiff has got agreement of sale Ex.P. 1 obtained by exercising coercion and undue influence on them and having thereafter treated the agreement of sale cancelled and sought for payment of the advance amount paid by his brother-in-law K.J.Hariharakrishnan along with damages. Hence, D.W.1 denied the execution of Ex.P.1 and also D.W.1 stated that Ex.P.1 has obtained by fraud and D.W.1 stated that plaintiff to get execute the sale deed within prescribed time of 3 months and hence, plaintiff failed to prove the readiness and willingness and D.W.1 also stated that plaintiff is not entitled for discretionary relief of specific performance particularly in the face of decree granted in favour of Smt. Kum. Pooja, daughter of late Amarnath(elder son of A.Pandurangarao) of 1/6th share in O.S.No.1022/2005 in a suit filed by Neela(Leelavathi) on behalf of her daughter on 5/8/2010. Hence, D.W.1 with this affidavit averments, deposed her evidence and prayed for dismissal of suit and she got marked certified copy of judgment in O.S.No.1022/2005 dated: 5/8/2010d on the file of CCH-10 and it is marked at Ex.D.1.
29 OS. No.4764 of 200814. Counsel for plaintiff cross-examined D.W.1 on 9/12/2015, wherein D.W.1 admits that she know plaintiffs as plaintiff's relative ie., brother-in-law of plaintiff K.J.Hariharakrishnan who was residing in the suit schedule property hence, D.W.1 admits that she know the plaintiff of this suit and D.W.1 further admits that defendant No.1 to 5 have executed sale agreement expressing their intention tosell the suit schedule property in favour of K.J.Hariharakrishnan on 1/12/2004 and D.W.1 admits that they have received Rs.3,00,000/- as part consideration amount out of total consideration amount of Rs.10,00,000/- . But, D.W.1 denied the presence of plaintiff herein when sale agreement dated:
1/12/2004 came to be executed and D.W.1 admits that her sister-in-law has also signed the sale agreement dated:
1/12/2004. But, D.W.1 denied that plaintiff is also one of the attesting witness in the sale agreement dated: 1/12/2004. D.W.1 admits that whenever she used to sign any document, she used to sign only after reading the contents of document and D.W.1 admits that defendant No.1 to 3 are signing the documents by affixing their thumb impression and D.W.1 admits that herself and her brother Lokesh are capable to sign the documents. D.W.1 confronted with Ex.P.1 and asked to identify the signature of defendant No.5, wherein she identified the signature of defendant No.5 on Ex.P.1 and she further identified her signature on Ex.P.1 which are marked as per Ex.P.1(a) and (b) respectively.30 OS. No.4764 of 2008
D.W.1 admits that after knowing the contents of Ex.P.1, she has signed Ex.P.1 and witness identified the signature of her brother-in-law on Ex.P.1 at Sl.No. 2 of this Ex.P.1 and further she identified the signature in Ex.P.1 of K.J.Hariharakrishnan signed as consent witness and D.W.1 admits that she has not issued any Legal notice to K.J.Hariharakrishnan and D.W.1 deneid that plaintiff has issued Legal notice to defendants and D.W.1 admits that in the year 2008 they are residing in the address at No.4/1, 2nd main, Matadahalli. R.T.Nagra post, Bengaluru-32 and D.W.1 denied that plaintiff has caused Legal notice prior to filing of this suit dated: 1/4/2008 and sent to their residential address as referred above. But, the defendants have refused to receive Legal notice and D.W.1 stated that she has understood the case filed by the plaintiff for what relief he has filed this suit and D.W.1 stated that she do not attempted to know about her defence filed in this suit by reading written statement filed in this case and D.W.1 stated that she has not acquainted with English language and she do not know reading and writing English language and even D.W.1 stated that she do not know the contents of affidavit evidence. D.W.1 further stated that, after filing of suit by the plaintiff, she has not filed any police complaint against plaintiff herein and D.W.1 admits that contents of Ex.P.1 are true and correct.31 OS. No.4764 of 2008
15. Learned counsel for the plaintiff further cross- examined D.W.1 on 12/1/2016 wherein she admits that she has not issued any Legal notice in respect of cancellation of previous agreement of sale dated: 1/12/2004 to K.J.Hariharakrishnan or to the plaintiff and D.W.1 denied that plaintiff approached herself and her husband and demanded to execute sale deed as he has kept ready sale consideration amount and D.W.1 denied that plaintiff has caused Legal notice dated: 1/4/2008 and she has refused to receive the said notice caused by the plaintiff and D.W.1 admits that Smt. Neela, W/o Amarnatha is not a party to Ex.P.1 sale agreement and according to the witness, Smt. Neela had also obtained decree in partition suit and she further admits that her brother Amarnath had expired and he had left his daughter by name Pooja. D.W.1 further denied that plaintiff was not informed about the existence of legal heirs of deceased brother Amarnath left his wife by name Neela and a daughter Pooja when Ex.P.1 was executed and D.W.1 denied that later on plaintiff came to know about the existence of legal heir of deceased Amarnath ie., wife and daughter and he was pressing the defendants to bring their consent for the agreement of sale Ex.P.1. D.W.1 admits that Smt. Neela had filed a suit claiming her share in the suit schedule property and their relations with Smt. Neela are strained due to filing of this partition suit and D.W.1 denied that as she is not in talking terms with Smt. Neela, hence, 32 OS. No.4764 of 2008 sale transaction could not be concluded. D.W.1 further denied that, she could not execute sale deed as she could not secure the presence of Smt. Neela and her daughter Pooja for execution of sale deed, hence, sale transaction could not be completed due to breach of terms of contract on the part of defendants and D.W.1 admits that she has not filed any complaint against plaintiff herein and D.W.1 denied the readiness and willingness of plaintiff to obtain sale deed and also she denied that plaintiff was ready with amount of Rs.7,00,000/- to pay balance sale consideration amount , but, defendants are not ready to execute sale deed and D.W.1 denied that she deposed false evidence in order to escape from the liability of execution of sale deed. Hence, she is deposing false evidence in this suit.
16. After appreciation of oral and documentary evidence placed on record wherein at the outset Ex.P.1 appears to be suspicious document wherein plaintiff has not come out with specific and clear version that whether Ex.P.1 agreement of sale executed by defendant No.5 in his favour or it is assignment of agreement of sale by K.J.Hariharakrishnan in his favour in respect of suit schedule property. It is the case of the plaintiff that defendant No.1 to 5 agreed to sell the suit schedule property for Rs.10,00,000/- as sale consideration amount and P.W.1 also stated that he has paid part consideration amount of Rs.3,00,000/- on 13/12/2005 33 OS. No.4764 of 2008 by way of cash to the defendants. But, D.W.1 specifically denied the payment of Rs.3,00,000/- amount on 13/12/2005 by the plaintiff and in this regard it is the burden lies upon the plaintiff to prove that he had amount of Rs.3,00,000/- as on 13/12/2005 for payment of part consideration amount and considering the cross-examination of P.W.1 wherein he stated that he ahs got bank account in Amarnath Bank opened in the year 2005 and P.W.1 stated that, always in his account, there was credit balance of Rs.20,000/- was retained by him and P.W.1 stated that his father has contributed Rs.1,50,000/- to pay earnest amount to the defendants and P.W.1 has stated that he has adjusted Rs. 1,50,000/- as he ahs with drawn some amount from cheque transaction and considering the cross-examination and pleadings filed by the plaintiff, wherein he has not disclosed the mode of payment of Rs.3,00,000/- amount to the defendants by way of cash on 13/12/2005 in the pleadings or in his affidavit evidence and considering the cross-examination of P.W.1, wherein his occupation is Receptionist in Hotel and he has not stated the name of the hotel, in which he was working in the year 2005 and he ahs not produced any salary certificate to show his monthly emoluments received by him from his private service in the year 2005. Hence, except Ex.P.1, plaintiff failed to substantiate any cogent documentary evidence in order to prove that he has got Rs.3,00,000/- amount on 13/12/2005 34 OS. No.4764 of 2008 paid towards earnest money and plaintiff has not examined his father in order to prove his contention that plaintiff's father has contributed Rs.1,50,000/- out of earnest money paid by the plaintiff. Hence, plaintiff also not examined his brother-in-law K.J.Hariharakrishnan in order to prove the execution of Ex.P.1, wherein K.J.Hariharakrishnan is a material witness in respect of proof of Ex.P.1, wherein then case pleaded by plaintiff impliedly amount to assignment of agreement of sale by K.J.Hariharakrishnan in favour of present plaintiff and it is admitted fact that defendants have entered into contract with plaintiff's brother-in-law namely K.J.Hariharakrishnan agreeing to sell the suit schedule property and executed sale agreement on 14/6/2005 /1/2/2004 and in that agreement, time was the essence of contract wherein plaintiff's brother-in-law failed to pay the balance sale consideration amount and to get executed sale deed to defendants and accordingly, defendants have cancelled the agreement entered into with K.J.Hariharakrishnan and it is the defence set up by the defendants that there was breach of contract on the part of K.J.Hariharakrishnan and time was the essence of contract as per agreement of sale dated: 14/6/2005 and merely due to breach of contract on the part of K.J.Hariharakrishnan, the said contract came to be revoked and accordingly, sale transaction and agreement of sale entered into dated:
14/6/2005 came to be revoked and cancelled and there is 35 OS. No.4764 of 2008 forfeiture of earnest money of Rs.3,00,000/- and defendants have lead specific defence that plaintiff herein had insisted for refund of earnest money paid by his brother-in-law namely K.J.Hariharakrishnan of Rs.3,00,000/-, wherein after settlement defendant No.4 had issued cheques for Rs.1.5lakhs each in respect of refund of amount of earnest money + damages of 1.5lakhs by issuance of cheques of ICICI bank, R.T. Nagar branch, Bengaluru and said cheques were dishonoured and accordingly, plaintiff herein had prosecuted the defendant No.4 under Section 138 of N.I. Act and there was conviction order passed in Criminal case No.14340/2006 and though defendant No.4 had filed criminal appeal in C.A.931/2007 wherein the said criminal appeal came to be dismissed by confirming the judgment and order of conviction of trail court and accordingly, defendant No.4 underwent imprisonment for 6 months ordered in C.C.No.14340/2006 and this fact is not denied by the plaintiff wherein plaintiff has not pleaded any fact of issuance of cheques by defendant No.4 and filing of criminal case after bouncing of cheques in criminal prosecution against defendant No.4 herein for the offence under section 138 of N.I.Act. P.W.1 in his evidence stated that defendants have executed sale agreement in his favour on 13/12/2005 but, plaintiffs except oral evidence and production of Ex.P.1 to 14, he ahs not got examined any other witnesses in order to prove the transaction. Though D.W.1 admitted the execution of Ex.P.1, but, considering the 36 OS. No.4764 of 2008 document Ex.P.1, wherein plaintiff ahs not obtained any title deeds from the custody of defendants when Ex.P.1 was came to be executed and apart from that, the time fixed in Ex.P.1 is of 3 months to get executed sale deed and it is a fact that after demise of original owner A.Pandurangarao, husband of first defendant and father of defendant No.2 to 5 wherein with the consent of sons and daughters of A.Pandurangarao, katha has been mutated in the name of first defendant in the municipal records after demise of her husband on 11/2/2003 and this suit schedule property belongs to A.Pandurangarao who had purchased the suit schedule property under sale deed dated: 13/9/2006 from his vendor Smt. Shantha Bai, W/o Lakshman RAo Katak and after the demise of A.Pandurangarao, first defendant got entered her name by change of katha entry in her name on 11/2/2003 itself and there was no impediment for the plaintiff to get executed the sale deed as on the date of execution of sale agreement wherein defendants have got perfect title and also documents are rightly available and nothing was to be performed by the defendants on their part, but, it appears that Ex.P.1 is obtained by playing fraud, coercion and mis-representation with defendants , wherein plaintiff and K.J.Hariharakrishnan are related to each other and it is a fact that previously K.J.Hariharakrishnan had entered into contract with defendants for purchase of suit schedule property and he entered into agreement of sale dated: 14/6/2005, but, 37 OS. No.4764 of 2008 K.J.Hariharakrishnan did not proceeded further in response to agreement of sale dated: 14/6/2005 against the defendants and accordingly, defendants due to time was the essence of contract and K.J.Hariharakrishnan did not pay the amount of balance sale consideration amount and accordingly, sale transaction entered into an agreement of sale dated: 214/6/2005 was revoked and cancelled by defendants and now the plaintiffs brother-in-law had instigated the plaintiff through Ex.P.1 to sue against defendants for the same relief of specific performance of contract wherein plaintiff did not enquire whether defendants 1 to 5 alone are having title to execute this agreement of sale and no such enquiry is made by the plaintiff and even plaintiff has not obtained the original title deeds from the defendants at the time of execution of alleged agreement Ex.P.1 and even considering the delay in issuance of Legal notice, wherein Ex.P.1 stipulates 3 months time and time is the essence of contract as per section 55 of T.P.Act wherein plaintiff caused Legal notice on 1/4/2008 after lapse of 3 years from the date of execution of Ex.P.1. Hence, it is admitted fact that A.Pandurangarao had left his eldest son namely Amarnath who died leaving behind his eife namely Neela(Leelavathi) and daughter by name Pooja wherein LRs of deceased Amarnath filed a suit for partition and separate possession in O.S.No.1022/2005(Ex.D.1) for partition relief and they filed the suit on 7/2/2005 and plaintiff could have 38 OS. No.4764 of 2008 made enquiry about the defendants No.1 to 5's title to execute sale agreement but, plaintiff did not made any enquiry and also he did not made enquiry regarding pendency of suit as on the date of alleged agreement of sale dated:13/12/2005 wherein during that time, the suit filed by the plaintiff in O.S.No.1022/2005 was pending before CCH-10 for partition and separate possession and there are recitals found in Ex.P.1 that defendants assured the plaintiff of getting consent for the agreement of sale by Smt. Neela wife of Amarnath and on behalf of her daughter Smt. Pooja for the sale transaction.
Hence, defendant No.4 already suffered conviction in criminal case in C.C.No.14340/2006 and this fact is not denied by the plaintiff and plaintiff already prosecuted defendant No.4 under section 138 of N.I.Act in respect of bouncing of cheques issued by defendant No.4 and previous agreement of sale dated: 14/6/2005 was cancelled between defendant No.1 to 5 and K.J.Hariharakrishnan and plaintiff has failed to prove his readiness and willingness as required under section 16© of Specific Relief Act and plaintiff also not examined his father in order to prove his contention that his father had contributed Rs. 1.5 lakhs to pay towards earnest money on 13/12/2005 and in order to prove the Ex.P.1 plaintiff did not examine his brother-in-law K.J.Hariharakrishnan who is material and vital witness in order to prove genuineness of Ex.P.1 and though defendants have admitted Ex.P.1 and its contents are true and correct, but, the burden rests on the 39 OS. No.4764 of 2008 plaintiff to prove that passing of consideration ie., earnest money of Rs.3,00,000/- paid by him to the defendants on the date of alleged execution of sale agreement. But, considering the evidence of P.W.1 , he has not produced his salary certificate and also not produced bank pass-book or statement of account and also not examined his father and his brother-in-law K.J.Hariharakrishnan in this suit and considering the previous transaction with K.J.Hariharakrishnan by the defendants and that agreement of sale was cancelled between defendants and K.J.Hariharakrishnan and it appears that plaintiff and his relative brother-in-law K.J.Hariharakrishnan had conspired together and created Ex.P.1 alleged agreement of sale against defendant No.1 to 5 in order to snatch available property worth more than Rs.25,00,000/- to 50,00,000/- during the year 2005. If really Ex.P.1 sale transaction genuinely entered into between defendant No.1 to 5 and that of plaintiff, one would have verified the encumbrance certificate obtained from Sub-Registrar office in respect of suit schedule property and also he could have secured original title deed like sale deed in the name of A.Pandurangarao and also other documents. But, no such document or title deeds are handed over by the defendants and only plaintiff has produced katha extract and katha certificate issued by Municipal authorities. Hence, defendants have not handed over any title deeds under part performance of contract and hence, considering 40 OS. No.4764 of 2008 the case pleaded wherein plaintiff has suppressed the material facts and it appears to the court that Ex.P.1 is suspicious document relied by the plaintiff and plaintiff has not examined his brother-in-law K.J.Hariharakrishnan who is material witness in this suit to be examined before the court in order to elicit truth in respect of Ex.P.1 wherein he has signed Ex.P.1 as consenting witness on the document Ex.P.1 and hence, examination of plaintiff's brother-in-law K.J.Hariharakrishnan is material and mandatory for the plaintiff. But, non-examination of consenting witness on Ex.P.1 is fatal to the case of plaintiff to disbelieve Ex.P.1 and also to draw an adverse inference against plaintiff to draw adverse inference u/s 114 (g) of Evidence Act that Ex.P.1 is created and manipulated document against defendant No.1 to
5. hence, Ex.P.1 is suspicious document wherein defendants No.1 to 5 alone have no title exclusively to execute sale agreement. On the otherhand, it is the property left by A.Pandurangarao who died on 14/10/1998 leaving behind him defendant No.1 to 5 and other legal heirs wherein elder son Amarnath died leaving behind his daughter by name Pooja, who had got 1/6th share and as per Ex.D.1 they have obtained their share of 1/6th share in a partition suit filed in O.S.No.1022/2005 before CCH-10. hence, Ex.P.1 cannot be enforceable contract as wife and daughter of Amarnath deceased son of A.Pandurangarao is not a party to Ex.P.1and plaintiff failed to prove his readiness and willingness as 41 OS. No.4764 of 2008 required u/s 16© of Specific Relief Act and plaintiff also not produced any iota of evidence to show that he has got financial capacity to pay Rs.7,00,000/- to the defendants and plaintiff has not made efforts to deposit that amount at the inception of the suit and not produced any bank account statement or pass-book to show that he was having 7 lakhs of money ready with him after lapse of 3 months from the date of Ex.P.1 or as on the date of suit. Though learned counsel for plaintiff has relied upon three decisions in support of his arguments but, these citations relied upon by the plaintiff's counsel are not squarely applicable to the facts of this case wherein this court has come to the conclusion that Ex.P.1 is suspicious document created by the plaintiff and his brother- in-law namely K.J.Hariharakrishnan and on the basis of such created and manipulated agreement of sale this suit has been filed against the defendants.
17. Counsel for the defendants, also relied upon some citations and these citations relate to burden of proof under Indian Evidence Act wherein in a suit for specific performance burden of proof heavily lies on plaintiff purchaser to prove the readiness and willingness and particularly his continuous readiness and willingness to comply Section. 16© of Specific Relief Act in order to seek relief of specific performance decree. Hence, the citations relied on behalf of defendants are applicable to the defence one taken by the defendants and 42 OS. No.4764 of 2008 hence I hold that plaintiff has utterly failed to prove that defendants have executed Ex.P.1 in his favour agreeing to convey the suit schedule property for Rs.10,00,000/- and also plaintiff failed to prove passing of consideration amount towards earnest money on 13/12/2005 to the defendants and on the contrary, considering the defence pleaded by the defendants, wherein their defence filed in this case is more probable for acceptance and as such the defendants have proved that Ex.P.1 is obtained by plaintiff in collusion with his brother-in-law K.J.Hariharakrishnan and Ex.P.1 has obtained under undue coercion etc., wherein it is pertinent to note that property consisting of ground floor and first floor, wherein it is worth value cost or valued at Rs.25,00,000/- to 50,00,000/- as per prevailing market value and no prudent man would sell this property worth fifty lakhs for meager price of Rs.10,00,000. Hence, considering all these facts, Ex.P.1, appears to be suspicious document filed by the plaintiff in this suit and accordingly, issue No.1 is answered in negative against plaintiff and issue No.2 is answered in favour of defendant No.1 to 5.
18. ISSUE NO.3:-Plaintiff has pleaded his readiness and willingness; as required u/s 16© of Specific Relief Act in his pleadings and also P.W.1 lead evidence reiterating facts of his readiness and willingness to get execute sale deed. But, this court has already discussed in Issues No.1 and 2 43 OS. No.4764 of 2008 regarding section 16© of Specific Relief Act, wherein plaintiff has caused Legal notice as per Ex.P.4 on 1/4/2008 after lapse of 3 years against defendants wherein Ex.P.1 held to be suspicious agreement of sale and plaintiff has failed to prove the passing of consideration amount of Rs.3,00,000/- on 13/12/2005 to the defendants and plaintiff also failed to prove the continuous readiness and willingness wherein he has not issued any Legal notice immediately after lapse of 3 months to the defendants as per Ex.P.1 terms and plaintiff has issued notice after lapse of 3 years, hence, on the aspect of delay in causing notice to the defendants also leads to draw an adverse inference against plaintiff and this court while discussing issue No.1 and 2 hold that Ex.P.1 is not genuine agreement of sale wherein defendant No.1 to 5 alone not having exclusive title over the suit schedule property, wherein other sharers are not party to the agreement Ex.P.1. Hence, the on appreciation of oral evidence wherein plaintiff has filed this suit based upon Ex.P.1, who has created and manipulated the agreement of sale against defendants and hence plaintiff also failed to prove his readiness and willingness as mandatory u/s 16© of Specific Relief Act and plaintiff failed to prove Ex.P.1 as it is genuine agreement of sale entered into by defendants with him. Accordingly, issue No.3 is also answered in negative against plaintiff.
44 OS. No.4764 of 200819. Issue No.4:-Plaintiff has filed this suit for the relief of specific performance of contract based upon Ex.P.1 against defendants and this court while discussing issue No.1 to 3 has already given findings holding that Ex.P.1 is not genuine agreement of sale and defendant No.1 to 5 have no exclusive title to alienate the suit schedule property in favour of plaintiff wherein the heirs of Amarnath also having 1/6th interest in the suit schedule property as per Ex.D.1. Henc,e plaintiff is not entitled for any relief of specific performance of contract and even plaintiff failed to prove that he has paid earnest money of Rs.3,00,000/- to defendants and hence, this agreement of sale is prepared and pressed into this suit in active connivance with plaintiff and his brother-in-law namely K.J.Hariharakrishnan wherein so far as agreement of sale standing in the name of K.J.Hariharakrishnan was revoked and cancelled by defendants and hence, this suit filed by the plaintiff at the instigation of brother-in-law to have grudge against defendants in order to snatch away this valuable property and hence plaintiff has failed to prove his case as pleaded in the plaint. As such I hold that, plaintiff is not entitled for any relief of specific performance of contract based upon Ex.P.1. Accordingly, issue No.4 is answered in negative.
20. Issue No.4: In view of my findings arrived and discussed and reasons given on Issue No.1 to 4, the suit filed 45 OS. No.4764 of 2008 by the plaintiff deserves to be dismissed. Hence, I proceed to pass the following:-
OR D E R The suit filed by the plaintiff is hereby dismissed. No order as to costs.
Draw decree accordingly.
{Dictated to the Judgment writer , transcribed by her, corrected and then pronounced by me in open court this 23rd day of February, 2016.} (S.V.KULKARNI) XI ADDL.CITY CIVIL JUDGE BANGALORE CITY.
ANNEXUERE List of witnesses examined for plaintiff:-
P.W.1 Sri.A.R.S.Chandran List of documents exhibited for plaintiff:-
Ex.P.1 Agreement of sale dated 13.12.2005
executed by defendant in favour of
plaintiff
Ex.P.2: Katha extract in respect of suit
schedule property
Ex.P.3 Katha certificate in respect of suit
46 OS. No.4764 of 2008
schedule property
Ex.p.4: Legal notice dated 1.4.2008 issued by
advocate for plaintiff to defendants
Ex.P.5 to P.9 Postal receipts
Ex.P.10 to P.14 Unserved postal covers
List of witnesses examined for defendant:
D.W. 1 Smt. Leelavathi
List of documents exhibited for Defendant:-
Ex.D.1 Certified copy of judgment in O.S. No. 1022/2005 of CCH 10 XI ADDL.CITY CIVIL JUDGE, BANGALORE CITY 47 OS. No.4764 of 2008 48 OS. No.4764 of 2008