Bangalore District Court
Sri.D.K.Adikesuvulu vs Sri. H.S.Subba Setty on 25 March, 2017
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
Dated this the 25th day of March 2017.
PRESENT: Smt. M.LATHA KUMARI, MA, LLM.,
XI Addl.City Civil Judge, B'lore city.
O.S.No.1203 of 2005
C.C.H.8
Plaintiff/s: Sri.D.K.Adikesuvulu,
Since dead by L.Rs
1(a) Smt. D.A.Sathyaprabha
W/O Late D.K.Audikesuvulu,
Aged about 60 years,
No.7/21, 1st Cross, 9th Main,
R.M.V. Extension,
Bengaluru-80
1(b) Smt. D.A.Thejeswari
W/O K.M.Srinivasamurthy
D/O Late D.K.Adikesuvulu,
Aged about 43 years,
No.5 /25, 3rd Cross, 1st Block
Jayanagar
Bengaluru-11
1(c) Smt. D.A.Kalpaja
W/O R.Premchander
D/O Late D.K.Audikesuvulu,
Aged about 42 years,
No.7/21, 1st Cross, 9th Main,
R.M.V. Extension,
Bengaluru-80
2 O.S. No.1203 of 2005
1(d) Sri. D.A.Srinivas
S/O Late D.K.Audikesuvulu,
Aged about 40 years,
No.7/21, 1st Cross, 9th Main,
R.M.V. Extension,
Bengaluru-80
(By Sri. H.Kumarswamy, advocate)
Vs.
Defendant/s: 1. Sri. H.S.Subba Setty
S/O Late H.V.Sriranga Setty,
Aged about 67 years,
Residing at B.M.Road,
Sakaleshpur
2. Sri. H.S.Srinivas
S/O Late H.V.Sriranga Setty,
Aged about 65 years,
Residing at B.M.Road,
Sakaleshpur
3. Sri. H.S.Gopal
S/O Late H.V.Sriranga Setty,
Aged about 61 years,
Residing at # 12/3. Cambridge Road,
Udani Layout,
Bengaluru.
4. Sri. H.S.Sridhar
S/O H.S.Subba Setty,
Aged about 35 years,
Residing at B.M.Road,
Sakaleshpur.
3 O.S. No.1203 of 2005
5. Sri. H.S.Chetan
S/O Sri. H.S.Srinivas
Aged about 31 years,
Residing at B.M.Road,
Sakaleshpur.
6. Sri. H.G.Raghuveer,
S/O Sri.H.S.Gopal,
Aged about 27 years,
Residing at # 12/3.
Cambridge Road, Udani Layout,
Bengaluru.
7. M/S Sabari Trust,
A private Family Trust,
Registered under the Indian Trust Act,
1982, having its Registered Office
# 21, Cunningham Road,
Bengaluru-52.
Represented by its Managing Trustee,
Sri. H.S.Gopal
S/O Late H.V.Sriranga Setty,
Aged about 61 years,
Residing at # 12/3.
Cambridge Road,
Udani Layout, Ulsoor,
Bengaluru-08.
(By Sri.V.G/MSB, Advocate for D.1 to
D.7)
Date of the institution of suit: 14.2.2005
Nature of the suit: Specific performance
4 O.S. No.1203 of 2005
Date of the commencement of 19.12.2009
recording of the evidence :
Date on which the judgment 25.3.2017
was pronounced :
Total duration: Year/s Month/s Day/s
12 01 11
XI Addl.City Civil Judge,
B'lore city.
JUDGMENT
This is a plaintiff's suit through his power of attorney holder Sri. M.Sekhar for specific performance of the agreement of sale dated 27.3.2002 in respect of property measuring 12000/180000 square feet share of undivided right and interest in property bearing Municipal Corporation No.17 property bearing No.57 Richmond Road, Civil Station, Bengaluru consolidated into one unit bearing No.17 of M.G. Road, Bengaluru -1 hereinafter referred to as "B" schedule property. Subsequent to the filing of the suit, plaintiff got amended his plaint and also prayer column sought for alternative relief of refund of amount with interest and damages and also sought for direction to the defendants to execute G.P.A empower any person nominated by the pr or by this court to execute the conveyance in respect of plaint 5 O.S. No.1203 of 2005 "B" schedule property. Further praying to declare the termination of the agreement in question dated 27.3.2002 made by the defendants in pursuance of the letter dated 21.7.2004 as illegal and void.
2. Brief facts of the plaintiffs case is that, defendants are the true and absolute owners of immovable property bearing No.17 situated at M.G.Road, Bengaluru offered the said property for joint development in favour of M/S Sreenivasa Builders, an unregistered partnership firm, for which, plaintiff was the managing partner. The said form is in dissolution in view of suit filed by his other partners Mr.K.Srinivasulu Reddy and others in O.S.No.6955/1997. In view of this dispute between the partners of M/S Sreenivasa Builders, the work assigned by defendants herein in favour of said form M/S Sreenivasa Builders is not yet completed even after lapse of years together. When such being the case, plaintiff at the instance of the defendants, taken all steps to resolve all the disputes between the said partners of the firm through common friends. 3rd defendant also participated in several meetings with plaintiff and said Mr.K.Srinivasulu Reddy in the matter of arriving compromise between the partners of the firm. Said compromise was not progress. At that time, defendant No.1 to 3 have approached the plaintiff somewhere during 1st week of March 2002 and persisted the 6 O.S. No.1203 of 2005 plaintiff to enter into an agreement in respect of their 40% share in M.G.Road property, which is the subject matter of the suit i.e., "B" schedule property in order to meet their urgent financial commitments. The plaintiff expressed his inability to enter into any such agreement of sale in view of the restraint order made in MFA No.579/1998 and other connected appeals. However, after protracted deliberations, plaintiff and defendant No.1 to 3 orally agreed to enter into agreement of sale in respect of plaint "B" schedule property with a stipulation to complete the sale on or before July 2002. Further it was agreed between the parties that the said proceedings are nor resolved or terminated by the said date. It was agreed to complete the sale of the said property only after the resolution of the dispute between the parties to the suit or earlier termination of the proceedings by the order of the court. With this understanding, the plaintiff and defendant No1. to 3 on the same day, finalized the said terms and conditions of sale. Defendant No.1 to 3 requested the plaintiff to pay a sum of Rs.50,00,000/- by way of advance, but no amount was paid on that day. However, sale consideration amount was fixed at Rs.3,32,50,000/- on 12.3.2002, a sum of Rs.20,00,000/- was paid by the plaintiff to the defendants and further sum of Rs.11,50,000/- was paid on 20.3.2002. These amounts were given to the defendants pending execution of the agreement of sale. In 7 O.S. No.1203 of 2005 pursuance of these understanding, a agreement of sale dated 27.3.2002 came to be executed between plaintiff and defendants. The defendants agreed to sell and plaintiffs agreed to purchase plaint "B" schedule property for a sale consideration of Rs.3,32,50,000/-. This plaint "B" schedule property is one such portion of the land and building allotted to the share of the defendants under the Memorandum of Understanding dated 19.7.1996. On the date of agreement of sale, a further sum of Rs.10,00,000/- by way of cheque dated 27.3.2002 drawn in favour of 7th defendant has been paid. In all a sum of Rs.41,50,000/- was paid by the plaintiff to the defendants as earnest money under the said agreement. Defendants have acknowledged the same under the said agreement. The said agreement provides stipulation as to payment of balance sale price and completion of sale of plaint "B" schedule property under Clause No.2(a) and Clause No.2(b), a plaintiff agreed to payrs.25,00,000/- on or before 15.4.2002, another Rs.25,00,000/- on or before 15.5.2002 and another Rs.25,00,000/- on or before 15.6.2002 and balance of Rs.2,16,00,000/- at the time of registration on or before July 2002, whichever is earlier. As per Memorandum of Understanding dated 19.7.1996, defendant was due of Rs.81,00,000/- to M/S Sreenivasa Builders. It is plaintiff's further case that, he made arrangement to pay balance sale 8 O.S. No.1203 of 2005 consideration of Rs.1,35,00,000/- due to the defendants under the said agreement by 12 installments between 8.12.2002 to 24.12.2002 and this arrangement was accepted by the defendants. The defendants further agreed that plaintiff to make the remaining balance amount Rs.81,00,000/-, out of the same to M/S Sreenivasa Builders at the time of registration of the absolute sale deed towards extra work carried out by M/S Sreenivasa Builders in M.G.Road property and also another property situated at Indira Nagar belongs to defendants herein. The plaintiff by his letter dated 3.2.2003 informed the defendants that a considerable amount has already been paid to the defendants and making necessary arrangements for balance payment before 15.2.2003. Again by letter dated 22.3.2003 the accountant of the plaintiff informed the defendants that they have settled majority portion of the sale consideration for payment of balance amount, they have requested their bankers and they have assured them that they would disburse the amount by the end of this month. Accordingly, the payment will be made at the time of registration. These letter were received by the 3rd defendant by hand on the said date itself. When such being the case, by letter dated 21.7.2040, defendants pointed out that said M/S Sreenivasa Builders, firm in dissolution has not handed over to them, the possession of the 40% of the built area of M.G.Road in 9 O.S. No.1203 of 2005 terms of the Joint Development Agreement. The Memorandum of Understanding has made between said firm and 3rd defendant was without the knowledge of other trustees and beneficiaries. That the said Memorandum of Understanding are controversial to the terms of the Joint Development Agreements and also subject matter of suits in O.S.No.7866 and 7867/1996 filed by Mr.K.Srinivasulu Reddy and others. When such suits are pending, the agreement of sale in question was made at the instance of the plaintiff. Though the agreement shows payment of Rs.41,50,000/- made as advance, plaintiff has paid only Rs.40,00,000/- as earnest deposit on 23.2.2002, that the plaintiff agreed to pay balance sale consideration amount of Rs.2,91,00,000/- and to complete the sale transaction as per Clause No.2(a) of the agreement. Plaintiff failed to keep up the commitment as agreed, the defendants were made to run for time and again for payment. They have received only a sum of Rs.1,61,00,000/- under the said agreement. That the defendants have agreed with the plaintiff to pay a sum of Rs.81,00,000/- out of the total sale consideration to the said firm M/S Sreenivasa Builders and plaintiff agreed to buy the properties as is where is condition. Whereas, plaintiff failed to fulfill his obligation under the agreement. He had defaulted in making payment of balance consideration. In view of these reasons, the defendants as agreed have 10 O.S. No.1203 of 2005 forfeited Rs.25,00,000/- towards liquidated damages for breach of agreement, they are desirous to refund Rs.1,36,00,000/- out of the amount payable to them by the said firm under the Joint Development Agreements in respect of M.G.Road and Indiranagara properties. Thereafter, plaintiff by his letter dated 6.8.2004 intimated the defendants that they could not cancel or terminated the agreement of sale as the said agreement was concluded one asserting that, defendants are trying to alienate "B" schedule property in favour of the 3rd party. Hence, plaintiff constrained to file this suit for the reliefs mentioned supra.
3. During the pendency of the suit, plaintiff died, his LRs brought on record.
4. On issuance of suit summons, defendant No.1 to 7 appeared through their counsel and resisted the suit of the plaintiff by filing their written statements asserting that the suit as brought out by the plaintiff is not at all maintainable. Defendants also asserted that they do not admit the power of attorney is empowered to institute the suit and prosecute the matter. The power of attorney does not disclose the reason for having executed the same and he does not specify as to why the plaintiff is unable to institute the suit and prosecute 11 O.S. No.1203 of 2005 the matter personally. They also denied execution of any such power of attorney by the plaintiff in favour of Shekar was filed the suit. Defendants asserted that, plaintiff himself committed breach of the agreement terms leading to termination of the agreement as also revocation of power of attorney pursuant to the notice dated 21.7.2004. The 7th defendant is private family trust registered under the Trust Act represented by its Managing Trustees, defendant No.1, 3 and 4. Defendant No.2, 5 and 6 are the beneficiaries of the trust. 7th defendant trust is the true and absolute owner of the entire extent of M.G.Road property i.e. plaint "A" schedule property. The defendants offered plaint "A" schedule property for joint development in favour of M/S Sreenivasa Builders , which is a unregistered partnership firm of which, the plaintiff is the managing partners. However, said firm is in dissolution and O.S. No.6955 of 1997 is accordingly, pending against said firm. In view of the dispute between the partners of M/S Sreenivasa Builders, the schedule "A" property belonging to the defendants have not been developed and completed even after lapse of 14 years and as a result, the defendants have been put to untold hardship. The firm in dissolution has not handed over possession of 40% of built area in terms of Joint Development Agreement. At the instance of plaintiff, 3rd defendant representing 7th defendant Trust without the knowledge of other proceedings and beneficiaries entered into a 12 O.S. No.1203 of 2005 Memorandum of Understanding , which is contrary to the terms of Joint Development Agreement in respect of both M.G.Road project and also Indiranagara Project. Sri. Srinivasa Reddy and others questioned the said Memorandum of Understanding and sought to declare the same not binding on them, the suits are pending adjudication in O.S. No.7866/ and 7867/1996 before the City Civil Judge, Bengaluru. When these disputes were pending, plaintiff approached the defendants for purchase of 40% share of super built area i.e, "B" schedule property for a total consideration of Rs.3,32,50,000/-. Though Rs.Rs.41,50,000/- was agreed to be paid as earnest money only Rs.40,00,000/- was paid on 23.2.2002, plaintiff agreed to pay balance amount of Rs.2,91,00,000/- as per Clause No.2(a) and agreed to complete the entire sale transaction on or before July 2002. The plaintiff failed to keep up his commitment, the defendants have received total sum of Rs.1,61,00,000/- against Rs.3,32,50,000/- from the plaintiff. Even these payments were not made in accordance with the terms of the sale agreement and it was paid belatedly. The defendant had agreed to deduct a sum of Rs.81,00,000/- being the amount towards extra specification to be paid at the time of registration of sale deed M/S Sreenivasa Builders towards M.G.Road project as also Indiranagara project. The reply dated 3.2.2003 and 22.3.2003 clearly demonstrates that plaintiff had no funds to answer the 13 O.S. No.1203 of 2005 commitment inspite of correspondence made by the defendants to the plaintiff, plaintiff not at all bothered to arrange balance sale consideration and thereby to get the sale deed executed . Having no other way, defendants issued notice dated 21.7.2004 and thereby terminated the contract and also forfeited a sum of Rs.25,00,000/- towards liquidated damages as per Clause No.6(a) of the agreement. In the said notice, it was also specified that, defendants have received Rs.1,61,00,000/- in all and a sum of Rs.1,36,00,000/- to be refunded by the defendants shall be adjusted as of date of issuance of notice, from date of the amounts payable to the defendants as against M.G.Road project and Indiranagara Project in terms of the Joint Development Agreement executed by the 7th defendant in favour of M/S Sreenivasa Builders. The said adjustment was sought, since the plaintiff had taken up the responsibility to clear a sum of Rs.81,00,000/- out of the sale consideration and pay to M/S Sreenivasa Builders, a firm in dissolution as a partners. Since plaintiff himself committed breach of the contract, the defendants left with no alternative, except to terminate the contract. Hence, pray for dismissal of the suit.
Further defendants sought for counter claim to declare the Memorandum of Understanding dated 19.7.1996 and also judgment and decree dated 19.8.1999 passed in O.S.No.11049/98 is not binding on them.
14 O.S. No.1203 of 20055. Based on these respective pleadings, the following issues are framed by this court as follows:-
1. Whether the plaintiff prove that he has been always ready and willing to perform his part of the contact in respect of schedule 'B' property?
2. Whether the plaintiff prove that the termination of agreement dtd: 27.3.2002 by the defendants is illegal and void?
3. Whether the plaintiff is entitled the relief of Specific Performance of contract in respect of the schedule 'B' property?
4. In the alternative, whether the plaintiff is entitled for the refund of Rs.1,71,50,000/-
together with the interest @ 18% p.a. on Rs.78,74,500/- from the date of the suit to till its realisation?
5. Whether the plaintiff is entitled for the damages /compensation of Rs.3,00,00,000/- with interest @ 18 % p.a. from the defendants?
6. Whether the defendants 1, 2 & 4 to 6 prove that M.O.U dtd: 19.7.1996 entered into between M/S Srinivasa Builders and the defendant No.3 representing defendant No.7 is illegal, null and void and not binding upon them?
15 O.S. No.1203 of 20057. Whether the defendants 1, 2 & 4 to 6 prove that the Judgment and Decree passed in O.S. No.11049/98 dtd: 19.8.1989 passed by the 26th A.C.C. & S.J. Bangalore is collusive and not binding on them?
8. To what reliefs the parties are entitled?
9. What Order or Decree?
6. Plaintiff's power of attorney holder got examined himself as P.W.1 and got marked as many as 13 documents Ex.P.1 to P.13. On behalf of defendants, 3rd defendant got examined himself as D.W.1 and got marked as many as 5 documents Ex.D.1 to Ex.D.5.
7. I have carefully scrutinized entire records before me. Heard arguments.
8. My findings on the above issues are as under:-
Issue No.1: In negative;
Issue No.2: In negative:
Issue No.3: In negative:
Issue No.4: In negative:
Issue No.5: In negative:
16 O.S. No.1203 of 2005
Issue No.6 & 7: In negative
Issue No.8: The parties are not entitled for any relief.
Issue No.9: As per final order for the following reasons:
REASONS
9. Issue No.1 : It is not in dispute that the defendant
No.1 to 3 are brothers and 4 to 6 are sons of defendant No.1 to 3 and 7th defendant is the private family trust of defendant No.1 to 6. It is also not in dispute that defendants being absolute joint owners of property bearing No.25 to 34 situated at old Madras road, Indiranagara property bearing Municipal No.17 situated at Mahathma Gandhi road, i.e., "A" schedule property. It is further not in dispute that both these M.G.Road and Indiranagara properties were the subject matter of the Joint Development Agreements dated 24.1.1990, under which, the defendants permitted M/S Sreenivasa Builders, for which, plaintiff herein is the Managing Trustee to develop the M.G.Road property into Multi storeyed commercial complex and Indiranagara property into residential complex. The said firm and defendants apportion ate these properties in pursuance of Memorandum of Understanding dated 19.7.1996. It is also not in dispute that as per the said Memorandum of Understanding , "B" schedule property, which 17 O.S. No.1203 of 2005 belongs to the defendants herein, agreed to be purchased by the plaintiff under sale agreement dated 27.3.2002 for a total sale consideration of Rs.3,32,50,000/-. The plaintiff himself agreed in his plaint that as per the said sale agreement, the date fixed for payment of balance was either on the day of registration or on or before July 2002. Hence, as per the very sale agreement, under which, plaintiff is claiming relief of specific performance was bound to clear the balance sale consideration on or before July 2002. Admittedly this is not a suit filed by the plaintiff D.K. Adikesuvulu personally. This is a plaintiff's suit through his power of attorney holder by name Shekar, who filed this suit on 14.2.2005. The defendants contended that plaintiff was not at all having sufficient funds to pay the same at a relevant point of time. Inspite of the same, considering the request of the plaintiff, further advance was accepted at belated stage. Inspite of the same, plaintiff not at all performed his part of contract and get the sale deed executed by paying the balance sale consideration. Hence, they have terminated the agreement dated 27.3.2002 and hence, plaintiff is neither entitled to specific performance nor for alternative releifs as claimed. It is not in dispute that in a suit for specific performance, the continuous readiness and willingness on the part of plaintiff is a condition precedent to grant the relief of specific performance. The duty casted on this court to consider the readiness and willingness on part of 18 O.S. No.1203 of 2005 plaintiff while granting or refusing to grant the relief. Further to adjudicate whether the plaintiff is ready and willing to perform his part of contract , the conduct of the plaintiff prior and subsequent to the filing of the suit also very vital. The amount of consideration, which plaintiff has to pay to the defendants must all necessity be proved to be available with him at all the relevant point of time i.e., right from the date of execution till the date of decree. He must prove that he is ready and has always been willing to perform his part of contract. The learned counsel for plaintiff relied upon the citation of Hon'ble Supreme Court reported in 2010(10) SCC 512. In this citation, Hon'ble Supreme Court observed that Sec.16(c) of Specific Relief Act 1963 bars the specific performance of a contract in favour of a plaintiff, who fails to aver and prove that he has performed or has always been ready and willing to perform his essential terms of the contract, which are to be performed by him. With these principles of Hon'ble Supreme Court in background, now let me scan though the oral and documentary evidence relied upon by the plaintiff. Though this is a plaintiff suit for specific performance, plaintiff neither filed this suit personally against defendants nor stepped into the witness box. A power of attorney holder Shekar, who has signed the plaint and instituted this suit admittedly he is not a signatory to the suit document i.e., agreement of sale dated 27.3.2002. It is not the case of the plaintiff and defendants as per their pleadings 19 O.S. No.1203 of 2005 that, said Shekar the alleged power of attorney holder accompanied the original plaintiff all along through out this transaction and thereby having personal knowledge of the transaction and thereby he is capable of not only filing this suit, but also deposing on behalf of plaintiff. It is no doubt true that, if the power of attorney holder has done any act or handled any transaction in pursuance of the power of attorney granted by the principal, such power of attorney holders may be examined as a witness to prove those acts or transactions. If the principal alone has personal knowledge of such entire transaction and he has been handled all those transactions by participating in the transactions, his evidence before the court is inevitable in a suit for specific performance. Under such circumstances, when a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct. With these principles in background, now let me scan through the oral testimony of plaintiff's power of attorney holder P.W.1. P.W.1 by stating that he is the special power of attorney of plaintiff well acquainted with the facts involved in the suit reiterated entire plaint averments in his chief affidavit. At para No.2 of his affidavit, P.W.1 avers that he has given evidence based on the document produced in this suit and also based on his personal knowledge. Further according to 20 O.S. No.1203 of 2005 him, he has woring as an Office Manager in M/S Sreenivasa Builders. The discussion regarding sale of "B" schedule property between plaintiff and defendant No.1 to 3 were held in M.G.Road office, most of the time and on some times, at Sankey road, he has attended of such meetings and discussions at the instance of plaintiff and plaintiff has utilized his service through out the sale transaction and therefore, plaintiff has conferred with Special power of attorney to him to file this suit. He has produced such Special power of attorney as per Ex.P.6. Whereas in this document Ex.P.6, there is absolutely no reason assigned by the plaintiff for appointing P.W.1 as his power of attorney holder and also there is no reason to the effect that, P.W.1 accompanied plaintiff in all meetings pertaining to sale transaction of suit schedule property. The sale agreement in question, is as per Ex.P.3. The execution of this document by defendants in favour of plaintiff herein is not in dispute. At page No.5, the sale consideration amount agreed is shown as Rs.3,32,50,000/-. Further at Clause No.2(a), it is stated that defendants have acknowledged Rs.41,50,000/- and thereby plaintiff agreed to pay the balance sale consideration of Rs.2,91,00,000/- on various dates i.e., on or before 15.4.2002, Rs.25,00,000/-, another Rs.25,00,000/- on 15.5.2002, another Rs.25,00,000/- on 15.6.2002 and finally Rs.2,16,000/- at the time of registration or on or before July 2002. Further in this agreement, at page 21 O.S. No.1203 of 2005 No.2, it is also agreed and defendants authorized the plaintiff to pay Rs.81,00,000/- in all out of the balance sale consideration at the time of registration of sale deed in favour of M/S Sreenivasa Builders towards extra specification works done by the said builders in respect of both M.G.Road commercial complex and Indiranagara residential apartment. Though plaintiff was supposed to clear Rs.75,00,000/- on 15.6.2002, according to his own plaint averments, at para No.25, plaintiff has not cleared the said amount as agreed and according to him, he made arrangements to pay the said amount under 12 installments between 8.12.2002 and 24.12.2002. Though time stipulated to clear the balance sale consideration before July 2002, plaintiff not at all paid earlier 3 installments of Rs.25,00,000/- each from April to June 2002 nor the final balance consideration amount of Rs.2,16,00,000/- on or before July 2002. When such being the state of affairs, whether plaintiff was having these money with him or he had capacity to arrange and pay such money is another point to be considered at the stage. P.W.1 except producing the sale agreement herein, demand notice, reply notice issued by the parties herein as per Ex.P.4 and P.5 and certified copies of suits pending between the parties not placed any other documents before this court to establish financial capacity of the plaintiff at the relevant point of time. In his cross-examination, P.W.1 admits that plaintiff was supposed 22 O.S. No.1203 of 2005 to pay Rs.25,00,000/- on 15.4.2002, another Rs.25,00,000/- on 15.5.2002 and another Rs.25,00,000/- on 15.6.2002. P.W.1 deposes that the said amount has been paid after lapse of one week. He also admits that as per sale agreement, plaintiff was supposed to pay the balance consideration of Rs.2,16,00,000/- on July 2002. At page No.30 of his cross- examination, P.W.1 categorically deposes that his accountant informed defendants in writing on 22.3.2003 and stating that they have made arrangements through bank to pay the balance sale consideration. Whereas P.W.1 not at all produced any such documents issued by the bank assuring financial assistance to the plaintiff herein to purchase the suit schedule property in pursuance of Ex.P.3. As I have already stated, the plaintiff himself relied upon the citation of Hon'ble Supreme Court and in this citation, Hon'ble Supreme Court observed that, plaintiff has to prove that he was always ready and willing to perform his part of obligation in terms of contract and to establish the same, plaintiff should step into the witness box and give evidence that he has all along been ready and willing to perform his part of contract and subjected himself for cross-examination on that that issue. As plaintiff cannot obviously examined in his place, his power of attorney holder, who did not have personal knowledge either of the transaction or of his readiness and willingness. According to oral testimony of P.W.1, his accountant informed about the 23 O.S. No.1203 of 2005 arrangement made by the plaintiff in concerned bank towards balance sale consideration. Hence, P.W.1 being Manager is not having personal knowledge about the said transaction. Further P.W.1 is not a signatory to the document Ex.P.3. Though he asserted that he participated in all meetings, the absence of his signature as a witness on Ex.P.3 makes him only a 3rd party. In this suit, who has no knowledge about the transaction in question and also readiness and willingness on behalf of plaintiff. Money admittedly does not exist in vacuum. If plaintiff asserts that, he was all along ready and willing to perform his part of contract, he has to produce documentary evidence to establish availability of requisite funds with him not only on the date of entering into such contract, but also on all subsequent dates till he obtains the decree. The non payment of amount during April 2002 to June 2002 as agreed in the agreement Ex.P.3 at Clause No.2(a), and delay caused by the plaintiff in making said payment establishes that, he was not having sufficient funds to complete the transaction on his part. Ex.P.3 is a simple contract, under which, plaintiff is bound to make payment and defendants in turn by receiving amount from plaintiff shall execute the sale deed in respect of "B" schedule property in favour of plaintiff and such transaction shall take place on or before July 2002. Admittedly plaintiff not at all stepped into the witness box. His power of attorney holder, who is stranger to the transaction, not 24 O.S. No.1203 of 2005 produced any scrap of paper before this court to establish either financial capacity of the plaintiff to purchase the "B" schedule property or availability of requisite funds with plaintiff at the relevant point of time. Mere stepping into the witness box and deposing on behalf of plaintiff that, plaintiff is always ready and willing to perform his part of contract will not establish plaintiff's case of readiness and willingness under the contract. Plaintiff has to produce documentary evidence in support of such oral evidence. In the absence of such document, it is as good as plaintiff's case not being proved. P.W.1 admits in his cross-examination that, plaintiff has not paid Rs.81,00,000/- to the M/S Sreenivasa Builders till today as agreed in the agreement Ex.P.3. He also admits that as per recital in Ex.P.3, the time fixed for execution of sale deed was July 2002. In his cross-examination, it is further elicited that amount agreed and reflected in para No.25 of the plaint also not paid at relevant point of time. P.W.1 in support of this issue got marked 13 documents. None of these documents Ex.P.1 to P.13 speaks about plaintiff's financial capacity to perform his part of contract. Hence, there is absolutely no scrap of paper produced by plaintiff's Special power of attorney, P.W.1 to establish the financial capacity of the plaintiff and also possession of requisite funds with plaintiff at relevant point of time. Considering this oral and documentary evidence and also relying upon the principles laid down by Hon'ble 25 O.S. No.1203 of 2005 Supreme Court in the citation relied upon by the plaintiff himself, I answer Issue No.1 in the negative.
10. Issue No.2: It is the case of the defendants that since plaintiff was not having sufficient amount with him to conclude the contract, they were constrained to terminate the contract by issuing notice. P.W.1 himself got marked said notice dated 21.7.2004. at para No.10 of this notice, defendants avers that inspite of repeated requests and personal approach, plaintiff has not made payments. He failed and neglected to keep up a commitment as agreed upon and also defaulted in making payment of the amount of Rs.2,91,00,000/- apart from another sum of Rs.1,50,000/-. They have no other alternative, but to cancel the said agreement of sale. Hence, according to plaintiff, this notice was issued on 21.7.2004. It is not in dispute that that as per sale agreement, Ex.P.3, plaintiff agreed to pay the balance sale consideration on or before July 2002 and further plaintiff also agreed to pay another Rs.81,00,000/- on behalf of defendants out of this sale consideration amount to M/S Sreenivasa Builders towards extra specifications work carried out by said builders. Even after lapse of 2 years from July 2002, plaintiff failed to pay the balance sale consideration. P.W.1 categorically admits in his cross-examination that, plaintiff agreed to get the sale deed executed on or before July 2002. plaintiffs themselves failed 26 O.S. No.1203 of 2005 to establish their readiness and willingness to perform their contract. Under such circumstances, as per the recital in the very sale agreement, the defendants got issued the notice as per Ex.P.4, which is in accordance with the terms of the contract between the parties. Accordingly, I have answered this issue in the negative.
11. Issue No.3: As I have already stated unless plaintiff establishes his readiness and willingness to perform his part of contract, he is not entitled for the relief of specific performance of contract. Plaintiffs having personal knowledge about the sale transaction in question, failed to step into the witness box . On the other hand , got examined his power of attorney holder, who is neither a signatory to the contract nor having knowledge about the transaction. In the absence of oral testimony of plaintiff, entire case of the plaintiff not only appears vague , but also baseless. That apart, the failure is on part of the plaintiff himself, having committed breach, plaintiff cannot seek the discretionary relief of specific performance. Accordingly, I have answered Issue No.3 in the negative.
12. Issue No.4: The defendants herein got issued legal notice as per Ex.P.4 on 21.7.2004. At para No.9 of their notice, defendants specifically asserted that since plaintiff failed to perform his part of contract, as per the agreement, after 27 O.S. No.1203 of 2005 forfeiting a sum of Rs.25,00,000/- out of Rs.1,61,00,000/- a sum of Rs.1,36,00,000/- to be refunded to the plaintiff by them and said amount, they requested to adjust as of date, from out of the amount payable to defendants as against M.G.Road project and Indiranagara project in terms of Joint Development Agreement executed by 3rd defendant herein on behalf of 7th defendant. It is not in dispute that defendants being the owners of both M.G.Road property and Indiranagara property entered into Joint Development Agreement with M/S Sreenivasa Builders, for which plaintiff himself is a Managing Director to construct commercial complex at M.G.Road property and residential building at Indiranagara property. It is also not in dispute, under the said agreement, plaintiff agreed to pay Rs.81,00,000/- to the M/S Sreenivasa Builders towards extra specification work on behalf of defendants herein. Inspite of issuance of such notice as per Ex.P.4, plaintiff not at all approached the court immediately and he has filed this suit even after lapse of 6 months from said notice. Plaintiff admittedly not at all stepped into the witness box . Plaintiffs own document i.e., the agreement of sale Ex.P.3 states about Rs.81,00,000/- to be paid to M/S Sreenivasa Builders. There is also recital that schedule "B" is in uncompleted condition and he is purchasing the schedule "B" property with a stipulation, out of the advance paid by the purchaser under this agreement. Vendor shall be entitled to 28 O.S. No.1203 of 2005 forfeit a sum of Rs.25,00,000/- and refund the balance amount. Whereas plaintiff by committing default in payment of the balance sale consideration , now not entitled to seek refund of the advance sale consideration amount along with interest. This version of plaintiff is contrary to the terms of his own document Ex.P.3. Since the plaintiff, who is having personal knowledge about all these transactions and the original Joint Development Agreement entered among parties is not before the court and not subjected himself for cross- examination, is claim is required to be rejected. That apart in view of defendants notice much prior to the filing of the suit as per Ex.P.4, plaintiff has not at all given the details of adjustment to be made on his behalf with regard to amount. Under such circumstances, plaintiff is also not entitled for the alternative relief claimed. Hence, I answer Issue No.4 in negative.
13. Issue No.5: Since plaintiff failed to establish his readiness and willingness to perform his part of contract and made the defendants to frustrate before this court all along for more than decade is neither entitled for the reliefs claimed nor for any damages. Accordingly, I have answered Issue No.5 also in the negative.
29 O.S. No.1203 of 200514. Issue No.6 & 7: These two issues are taken up together for consideration to avoid repetition of facts and circumstance of this case.
The defendant No.1 to 7 who resisted the suit of the plaintiff also sought for counterclaim to declare that the memorandum of understanding dt19-7-1996 is not binding on them so also the judgment and decree dated 19-8-1999 passed in O.S.No.11049/1998. Though 3rd defendant got examined himself as D.W.-1 and got marked as many as five documents, later remained absent and not at all subjected himself for cross examination accordingly D.W.-1 came to be discharged by order dated 30-8-2013. Again in pursuance of interim applications No.8 & 9 filed by defendant No.1 to 7, this court permitted 3rd defendant to face cross examination by order dated 8-1-2014. In spite of such order again D.W.-1 failed to appear before this court and subject himself for cross examination accordingly cross of D.W.-1 again came to be closed on 14-3-2014. Further defendants filed similar applications in IANo.10 & 11 on 11-4-2014 which came to be rejected by this court by order dated 25-9-2014. Accordingly there is no oral or documentary evidence available on behalf of defendants in support of their defence. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined 30 O.S. No.1203 of 2005 by the other side, a presumption would arise that the case set up by him is not correct. Under such circumstances defendants are not at all entitled for the counter claim as prayed. Accordingly, I have answered this issue also in negative.
15. Issue No.8: In view of my findings on issue No.1 to 7, parties are not at all entitled for any reliefs claimed. Accordingly I have answered this issue.
16. Issue No.9: In view of my findings on issue No.1 to 8, I proceed to pass the following orders.
ORDER Suit dismissed with costs.
Draw decree accordingly.
{Dictated to the Judgment Writer transcribed by her, corrected and then pronounced by me in open court this 25th day of March 2017} (M.LATHA KUMARI) XI ADDL.CITY CIVIL JUDGE BANGALORE CITY.
31 O.S. No.1203 of 2005ANNEXUERE List of witnesses examined for plaintiff:-
PW.1 Sri.M.Shekar List of documents exhibited for plaintiff:-
Ex.P.1 Encumbrance certificate in respect of suit schedule property Ex.P.2: Certified copy of sale deed dated 24.12.2002 Ex.P.3: Agreement of sale executed between plaintiffs and defendants dated 27.3.2002 Ex.P.4: Legal notice dated 21.7.2004 Ex.P.5: Reply notice dated 11.11.2004 Ex.P.6: GPA executed by plaintiff in favour of P.W.1 Ex.P.7: Memorandum of Understanding between plaintiffs and defendants dated 19.7.1996 Ex.P.8: Certified copy of plaint in O.S. No.7866/1996 Ex.P.9 Certified copy of written statement in O.S. No.7866/1996 32 O.S. No.1203 of 2005 Ex.P.10: Certified copy of judgment and decree in O.S. No.7866/1996 Ex.P.11: Certified copy of orders in MFA No.579/1998 Ex.P.12: Certified copy of judgment and decree in O.S. No.3575/2003 Ex.P.13: Income tax assessment order in respect of Srinivasa Builders.
List of witnesses examined for defendants :-
D.W.1: Sri. H.S.Gopal List of documents exhibited for defendants :-
Ex.D.1: Certified copy of Trust deed dated
1.2.1979
Ex.D.2: Certified copy of sale deed dated
16.8.1979
Ex.D.3: Certified copy of sale deed dated
24.11.1983
Ex.D.4: Copy of legal notice dated 11.11.2004
Ex.D.5: Reply notice dated 21.7.2004.
XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
33 O.S. No.1203 of 2005