Bangalore District Court
T.V.Thammanna vs Smt.Shalini Verma on 21 February, 2015
IN THE COURT OF XVIII ADDL.CITY CIVIL JUDGE,
AT BENGALURU CITY. [CCH.NO.10]
Dated this day the 21st February 2015
PRESENT
Sri K.Amaranarayana B.Com., LL.M.
XVIII Addl.City Civil Judge.
O.S.No.1576/2011
Plaintiff: T.V.Thammanna,
S/o T.Venkataramappa,
Aged about 48 years,
R/at No.563, OTF Extension,
Bangarpet Circle,
Kolar - 563 101.
(By Sri D.S.J., Advocate)
/VS/
Defendants: 1. Smt.Shalini Verma,
W/o Late Amar Verma,
Aged about 50 years,
R/at No.1/04, 2nd Floor,
Bannerghatta Road,
Bangalore - 560 030.
2. The Authorised Officer,
HDFC Bank Ltd.,
2nd Floor, B Wing,
Golden Tower,
2 Os.1576/2011
Old Airport Road, Kodihalli,
Bangalore - 560 017.
(By Sri.S.S., Adv for D1
Retired on 18.2.2015)
Date of institution of 25.02.2011
suit Transferred from CCH-8
Nature of the (suit or Specific performance &
pronote, suit for permanent injunction.
declaration and
possession suit for
injunction,) etc.
Date of the 24.2.2012
commencement of
recording of the
evidence.
Date on which the 21.2.2015
Judgment was
pronounced.
Year/s Month/s day/s
Total duration: 03 11 26
(K.AMARANARAYANA)
XVIII Addl.City Civil Judge, Bengaluru.
JUDGMENT
The plaintiff filed this suit against the defendants 1 & 2 prays to pass judgment and decree for the relief of specific 3 Os.1576/2011 performance of contract directing the 1st defendant to execute registered sale deed in his favour in respect of the suit schedule property and in case, defendant No.1 failed to perform, the same may be executed by appointing court commissioner. Further in the event of defendant No.2 proceeds pursuant to the notice issued u/s.13(2) of the Securitisation Act dated 2.11.2009 be direct the 2nd defendant to accept the loan dues and execute the sale deed in favour of plaintiff in respect of suit schedule property and for permanent injunction restraining the 1st defendant, her agents, servants, administrators, henchmen or any other persons claiming under or through her from alienating the suit schedule property infavour of 3rd parties and for costs.
2. Case of the plaintiff in brief is as follows:
The 1st defendant is the absolute owner of the suit schedule property. On 27.2.2008 the 1st defendant had entered in to contract to sell the suit schedule property in favour of plaintiff for a sale consideration of Rs.1,40,00,000/- and received a sum of Rs.75,00,000/- from the plaintiff on the same day and executed agreement of sale. The 1st defendant agreed to receive balance sale consideration at the time of registration. Three months time is fixed for registration. The 1st defendant availed loan of Rs.60 Lakhs from the Centurian Bank of Punjab, MG road, Bangalore by mortgaging the suit 4 Os.1576/2011 schedule property. She has agreed to clear the outstanding loan amount within the stipulated period and under taken to execute the sale deed in terms of agreement. It is agreed between them that in the event 1st defendant fails to clear the outstanding loan as on the date of registration, plaintiff is at liberty to clear the same out of the balance sale consideration payable in respect of suit schedule property. Originally the suit schedule property was purchased by husband of 1st defendant in favour of his two minor children Master Navin Verma and Master Pankaj Verma under registered sale deed dated 4.7.1984. Subequently 2nd son Navin Verma passed away on 4.8.1998 and surviving son Pankaj Verma executed a registered released deed dated 15.2.2002 infavour of 1st defendant as such the 1st defendant became the absolute owner of the suit schedule property. As the 1st defendant failed to clear the loan amount with Centurian Bank of Punjab, the bank has issued noticed u/s.13(2) of Securitisation Act and published in Indian Express and Kannada Prabha dated 26.3.2008. In order to avoid the same, plaintiff had paid little amount and requested them not to take coercive steps. Later plaintiff got issued a letter dated 19.5.2008 to the 1st defendant to execute the registered sale deed in his favour before 27.5.2008 by showing his read and willing to perform his part of contract under the agreement of sale and ready to clear the bank liability out of the balance 5 Os.1576/2011 sale consideration. In pursuance to the notice, 1st defendant approached him and requested for extension of 60 days time and she has also demanded to pay further advance of Rs.10 Lakhs and he had paid the same on 11.6.2008 by way of cash.
In contravention of the agreement the 1st defendant has executed the Gift Deed dated 30.4.2008 registered on 22.5.2008 in favour of her daughter and on 9.2.2011 she revoked the said gift deed. Again plaintiff issued letters dated 11.9.2008 and 29.9.2008 to execute the registered sale deed but she failed to execute the registered sale deed. The Centurion Bank of Punjab is merged with HDFC Bank, Bangalore / 2nd defendant and as the liability in respect of suit schedule property transferred to 2nd defendant bank, he is ready and willing to settle the amount out of the balance consideration. But the 2nd defendant is not ready to accept the loan dues and to return the original documents to him. The 2nd defendant has issued notice u/s.13(2) of Securitisation Act in Indian Express on 2.11.2009. He is ready and willing to clear the debts of 1st defendant, subject to 2nd defendant accepts to execute the sale deed in his favour. The plaintiff is unable to trace the 1st defendant as she is involved in number of criminal cases registered against her. Since the 1st defendant has committed default, the 2nd defendant taken possession of the schedule property under the provisions of Securitisation Act. The 2nd defendant informed the plaintiff 6 Os.1576/2011 that the claim over the schedule property will be settled and the property would be released in the presence of 1st defendant. Plaintiff came to know that the 1st defendant is making attempt to alienate the suit schedule property infavour of third persons. Hence the suit is for above reliefs.
3. The defendants 1 & 2 appeared through their counsel. The 2nd defendant is a formal party. The 1st defendant filed her written statement denying all the plaint averments, besides contending that the suit is not properly valued and the court fee paid is insufficient. She has denied the agreement of sale dated 27.02.2008 as the same is forged, fabricated and concocted by the plaintiff. The suit schedule property is a joint family property and all the members of the family have got common interest, as such question of executing the agreement and receiving advance amount does not arise. For the sake of development of the suit schedule property, release deed was executed in her favour for obtaining loan from Centurian Bank of Punjab. Katha was transferred to her name for specific purpose and she cannot be declared as absolute owner. She had loan transactions with the plaintiff for the past 8 years and during that time plaintiff had obtained her signature in blank stamp papers and misused the same. The plaintiff is nothing to do with the transaction between her and the bank.
7 Os.1576/2011 She is capable to clear the dues with the bank as the building is generating the revenue of more than Rs.2 Lakhs per month. She has filed her objection to the notice issued under section 13(2) of Securitisation Act in respect of suit schedule property. On the above grounds prays to dismiss the suit.
4. Based on the above pleadings, the predecessor in office has framed the following issues:
(1)Whether plaintiff proves that defendant No.1 has executed the agreement of sale dated 27.2.2008 agreeing to sell the suit schedule property for a consideration of Rs.1,40,00,000/- and received advance of Rs.75 Lakhs from him and agreed to execute the registered sale deed in his favour?
(2) Whether plaintiff proves that he has paid further advance amount of Rs.10 Lakhs to defendant No.1 on 11.6.2008 and defendant No.1 executed a new agreement for having received further amount on that date?
(3) Whether defendant No.1 proves that the alleged agreement of sale dated 27.2.2008 is forged, fabricated and concocted document?
8 Os.1576/2011 (4) Whether plaintiff proves his readiness and willingness in performing his part of contract?
(5) Whether the defendant No.1 proves that the suit valuation is improper and court fee paid is insufficient?
(6) Whether plaintiff is entitled for the relief of permanent injunction?
(7) What decree or order?
5. The plaintiff in order to prove his case got examined himself as PW1, got marked Ex.P.1 to P.22 and closed his side. Despite granting sufficient opportunity, 1st defendant has not adduced oral or documentary evidence on her behalf. The 2nd defendant have not filed any written statement and it is a formal party.
6. Heard the arguments of learned counsel Sri.D.S.J., appearing for the plaintiff. The 1st defendant and her counsel remained absent.
7. My answers to the above issues are as follows:
Issue No.1 : Affirmative
Issue No.2 : Affirmative
9 Os.1576/2011
Issue No.3 : Negative
Issue No.4 : Affirmative
Issue No.5 : Negative
Issue No.6 : Negative
Issue No.7 : As per final order
For the following:
REASONS
8. Issue Nos.1 to 3: To avoid repetition of facts and evidence these issues taken together for my consideration. The suit is filed for enforcement of agreement of sale dated 27.2.2008 entered in to between the plaintiff and the 1st defendant. The subject matter of the suit is the property bearing Municipal Corporation No.30, Division No.62/63/30 situated at Bannerghatta Road, Bangalore measuring 35.6 Feet X 66 + 67/2 Feet with right to passage and bounded on East by: Bannerghatta Road, West by: private property, North by: Private Property, South by: Private property. The plaintiff asserts that the 1st defendant being absolute owner agreed to sell the suit schedule property to him for a sale consideration of Rs.1,40,00,000/- and executed agreement of sale on 27.2.2008 by receiving Rs.75 Lakhs as advance. The plaintiff further asserts that 1st defendant received further advance of Rs.10 Lakhs on 11.6.2008 and extended the time to execute the sale deed. The plaintiff has produced the agreement of sale 10 Os.1576/2011 dated 27.2.2008 at Ex.P1. It is to be noted that the 1st defendant denied the very execution of Ex.P1. It is seen from the written statement the 1st defendant did not deny that the suit schedule property is belongs to her. It is contended by the 1st defendant that the suit schedule property is the joint family property and she has no absolute right over the same. Looking to the contention taken by the 1st defendant, the plaintiff is required to prove the execution of Ex.P1. The plaintiff to prove Ex.P1 has relied upon the oral evidence of PW1.
9. PW1 who is no other than the plaintiff has reiterated the averments of plaint. PW1 has specifically stated that the 1st defendant agreed to sell the suit schedule property to him on 27.2.2008 for a sale consideration of Rs.1,40,00,000/- and executed Ex.P1 by receiving Rs.75 Lakhs. PW1 further stated that on 11.6.2008 the 1st defendant had received further advance of Rs.10 Lakhs pursuant to the notice issued by him and extended the time for another 3 months to execute the sale deed. PW1 identified Ex.P1 and the signatures of 1st defendant at Ex.P1(a) & P1(b). PW1 also identified the endorsement on Ex.P1 made by 1st defendant for having received Rs.10 Lakhs and her's signature at Ex.P1(d). It is to be noted that the evidence of PW1 remained unchallenged. Therefore there is no reason to disbelieve the 11 Os.1576/2011 evidence of PW1 and Ex.P1. Thus the evidence of PW1 proves the execution of Ex.P1 & P1(c) by the 1st defendant. Ex.P6 & P8 are the Gift Deed and the Deed of Revocation of Gift Deed. Ex.P7 is the encumbrance certificate. From perusal of Ex.P6 to 8 the 1st defendant is the absolute owner of suit schedule property. Looking to the contents of Ex.P6 & 8, the contention of the 1st defendant that she is not the absolute owner of suit schedule property cannot be accepted. There is nothing on record placed by the 1st defendant supporting her contention that agreement of sale dated 27.2.2008 is forged, fabricated and concocted document.
10. Ex.P1 evident that the 1st defendant entered in to contract with the plaintiff to sell the suit schedule property for a sum of Rs.1,40,00,000/- and received advance amount of Rs.75 Lakhs/-. Ex.P1 further evident that the plaintiff issued notice to the 1st defendant as per Ex.P3 & P4 on 27.5.2008 and the 1st defendant extended the time to execute sale deed by receiving additional advance of Rs.10 Lakhs. The plaintiff agreed to purchase the suit schedule property from the 1st defendant after issuing the public notice in the news paper dated 7.3.2008. Thus it is clear from Ex.P1 there is a contract between the plaintiff and 1st defendant in respect of suit schedule property.
12 Os.1576/2011
11. It is evident from Ex.P1 that 3 months time was fixed to perform the contract. 3 months was elapsed as on 27.5.2008. Ex.P3 & P4 evident that the plaintiff issued notice to the 1st defendant and called upon her to perform her part of contract. Ex.P1(c) evident that the 1st defendant extended 3 months time to perform her part of contract by receiving Rs.10 Lakhs as an additional advance. Ex.P9 evident that the plaintiff issued notice to the 1st defendant through speed post the same has been served on the 1st defendant. Ex.P13 evident that the plaintiff again issued notice on 29.9.2008 calling upon the 1st defendant to execute the sale deed pursuant to agreement of sale. Ex.P20 evident that the plaintiff again called upon the 1st defendant to execute the sale deed. The notice sent by the plaintiff as per Ex.P20 returned unserved. The suit is filed on 25.2.2011 within 3 years from the date of refusal by the 1st defendant. Therefore inview foregoing reasons and under the circumstances it is held that the plaintiff proved the contract entered into between him and the 1st defendant. The 1st defendant failed to prove her contention that Ex.P1 is forged, fabricated and concocted document. The suit filed is within limitation. Hence I answered issue Nos 1 to 3 accordingy.
12. Issue Nos.4 to 7: To avoid repetition these issues taken together for consideration. The plaintiff is under 13 Os.1576/2011 obligation to prove his ready and willingness to perform his part of contract under section 16(c) of Specific Relief Act. The plaintiff has pleaded in the plaint at Para 16 that he is and was ready to perform his part of contract. The plaintiff has relied upon the oral evidence of PW1 and documentary evidence Ex.P3, P9, P13 & P20. PW1 has stated in his evidence that he is ready and willing to perform his part of contract by paying balance consideration. The 1st defendant is not ready and willing to perform her part of contract and avoiding to execute the sale deed by receiving balance consideration. Ex.P3, 9,13 & 20 the notices issues by the plaintiff disclose that the plaintiff called upon the 1st defendant to execute sale deed pursuant to the agreement of sale by receiving balance consideration of Rs.55 Lakhs. The evidence of PW1 and the contents of notices remained unchallenged. Thus the oral evidence of PW1 and the contents of Ex.P3, 9, 13 & 20 clearly establishes that the plaintiff is and was ready and willing to perform his part of contract. The refusal of the 1st defendant to receive the legal notice Ex.P20 is sufficient to hold that she is not ready and willing to perform her's contract. Thus the evidence on record proves the plaintiff's readiness and willingness to perform his part of contract.
13. The defendant No.1 contended that suit is not properly valued and the court fee paid is insufficient. A 14 Os.1576/2011 perusal of the valuation slip would indicate that the plaintiff valued the suit for Rs.1,40,00,000/- for the purpose of court fee and jurisdiction and court fee of Rs.2,77,125/- has been paid on the plaint. The plaintiff valued the relief of injunction for Rs.1000/- and paid court fee of Rs.25/-. The valuation arrived by the plaintiff under section 40 and 26(c) of KCF & SV Act is proper and sufficient. Therefore the contention taken by the 1st defendant is not tenable.
14. Under Section 20 of Specific Relief Act the jurisdiction to grant a decree of specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so, but the discretion of the court is not arbitrary but sound and reasonable and guided y the judicial principles and capable of correction by a court of appeal. On going through the contents of Ex.P1 and the oral evidence of PW1 there is nothing to indicate that the performance of contract would involve hardship on the defendant No.1 which she did not fore see, and its non- performance would involve no such hardship on the plaintiff. There is nothing to indicate that the defendant No.1 at any time exercised the right of forfeiting the earnest money of Rs.85 Lakhs received under agreement of sale Ex.P1. The 1st defendant withheld an amount of Rs.85 Lakhs/- belonging to the plaintiff since 2008 and is bound to execute the sale deed 15 Os.1576/2011 in favour of plaintiff. The plaintiff is ready to get the sale deed by paying the balance consideration of Rs.55 Lakhs. Looking to the over all circumstances, plaintiff is entitled for a decree of specific performance of contract against the 1st defendant.
15. The learned counsel appearing for the plaintiff would submit that the 1st defendant cleared the loan due to 2nd defendant and not pressing any relief against the 2nd defendant and suit against 2nd defendant is liable to be dismissed. Looking to the main relief claimed in the suit granting injunction restraining the 1st defendant from alienating the suit schedule property does not arise. Therefore, in view of foregoing reasons and under the circumstances, it is held that the plaintiff proves that the 1st defendant has executed the agreement of sale dated 27.2.2008 agreeing to sell the suit schedule property. Thus plaintiff is entitled for an order of specific performance of contract as prayed. Hence I answered the issue No. 4 to 7 accordingly and proceed to pass the following:
ORDER The suit filed by the plaintiff is partly decreed with costs. The defendant No.1 is hereby directed to execute the registered sale deed in favour of the plaintiff in respect of suit schedule property by receiving balance sale
16 Os.1576/2011 consideration of Rs.55 Lakhs and put the plaintiff in possession of the same. If the 1st defendant failed to execute the sale deed, the plaintiff can get the sale deed through court by depositing the balance consideration of Rs.55 Lakhs in the court and take possession of suit schedule property.
The suit filed against the 2nd defendant is hereby dismissed.
The relief claimed for grant of permanent injunction restraining the 1st defendant, her agents, servants, administrators, henchmen or any other persons claiming under or through her from alienating the suit schedule property is hereby dismissed.
Draw decree accordingly.
[Dictated to the Judgment Writer on computer, computerised, and print out taken by him, corrected and then pronounced by me in open court, this day the 21st February, 2015].
(K. AMARANARAYANA) XVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE ANNEXURE No. of witnesses examined on behalf of plaintiff:
PW.1 T.V.Thammanna
17 Os.1576/2011 No. of documents marked on behalf of plaintiff:
Ex.P1 : Agreement of sale dated 27.2.2008. Ex.P1(c) : Shara on Agreement of sale.
Ex.P2 : Udayavani Paper dtd.7.3.2008 and relevant page Ex.P3 : Legal notice dated 19.5.2008 Ex.P4 & 5 : Postal receipts. Ex.P6 : Certified copy of Gift Deed dated 30.4.2008. Ex.P7 : Encumbrance certificate Ex.P8 : Revocation of gift deed. Ex.P9 : Letter dated 11.9.2008 Ex.P10 & 14: Speed post receipts. Ex.P11 & 15: Postal receipt. Ex.P12 : Postal acknowledgement Ex.P13 : Letter dated 29.9.2008 Ex.P16 : Unserved RPAD Cover Ex.P17 : HDFC Bank letter dated 23.11.2009 Ex.P18 : Acknowledgment Ex.P19 : Copy of public notice made by High Ground Police. Ex.P20 : Notice dated 19.2.2011. Ex.P21 : Postal cover Ex.P22 : Receipt.
No. of witnesses examined on behalf of defendants:
NIL No. of documents marked on behalf of defendants:
NIL XVIII Addl. City Civil Judge Bangalore City.
18 Os.1576/2011 Judgment pronounced in the open court as per separate judgment. Operative portion of judgment is as follows:
ORDER The suit filed by the plaintiff is partly decreed with costs. The defendant No.1 is hereby directed to execute the registered sale deed in favour of the plaintiff in respect of suit schedule property by receiving balance sale consideration of Rs.55 Lakhs and put the plaintiff in possession of the same. If the 1st defendant failed to execute the sale deed, the plaintiff can get the sale deed through court by depositing the balance consideration of Rs.55 Lakhs in the court and take possession of suit schedule property.
The suit filed against the 2nd defendant is hereby dismissed.
The relief claimed for grant of permanent injunction restraining the 1st defendant, her agents, servants, administrators, henchmen or any other persons claiming under or through her from alienating the suit schedule property is hereby dismissed.
Draw decree accordingly.
XVIII Addl.C.C. & S.J., Bangalore
19 Os.1576/2011