Bangalore District Court
Mr. Sarvesha Y vs Dr. M.C. Koshy on 9 April, 2018
IN THE COURT OF THE XXIX ADDL. CITY CIVIL
& SESSIONS JUDGE AT BANGALORE CITY. (CCH 30)
Dated this the 9th day of April 2018
PRESENT: SMT. NAGAJYOTHI. K.A., LL.M.,
XXIX ADDL CITY CIVIL & SESSIONS JUDGE, BANGALORE.
O.S.No. 1689/2015
PLAINTIFFS: 1. Mr. Sarvesha Y,
S/o. Late Yellappa Reddy,
Aged about 37 years.
2. Mrs. Ashwini R,
W/o. Mr. Sarvesha Y,
Aged about 32 years.
Both are residing at No.67,
'Sri Renuka Nilaya',
Koramangala,
Bengaluru - 560 095.
(P.1 & 2 : VBR, Advocate)
Vs.
DEFENDANT: Dr. M.C. Koshy,
S/o. Late V.K. Chako,
Aged about 69 years,
Presently residing at No.1,
Cliff Street, Marblehead,
MA 09145-3060 and having his
Indian address at No.814,
10th Main, 3rd Block,
Koramangala,
Bengaluru - 560 034.
(D : LSV/MS, Advocate)
Date of institution of the suit 20/02/2015
Nature of the suit (suit on
pronote. Suit for declaration and Specific Performance of Contract
possession suit for injunction,
etc.)
Date of the commencement of 25/02/2016
recording of the evidence.
2 O.S.No.1689/2015
Date on which the judgment 09/04/2018
was pronounced
Total duration Year/s Month/s Day/s
03 01 19
JUDGMENT
This suit is filed against the defendant for judgment and decree in favour of the plaintiffs for directing the defendant to execute and register an absolute sale deed in respect of the schedule property in favour of the plaintiffs and deliver vacant possession thereof, as per the terms of the sale agreement dated 25.09.2014, by receiving the balance sale consideration amount or alternatively, directing the defendant to repay the plaintiffs the advance sale consideration amount and other expenses amounting to Rs.35,16,000/-, along with interest at the rate of 18% per annum from the date of receipt of the advance sale consideration, till the date of realization by way of compensation and damages, and for such other reliefs.
2. It is averred in the plaint that, defendant is the absolute owner of the immovable property with house thereon bearing No.814, Block-III, 10th Main, Koramangala Extension, Bengaluru
- 560 034, measuring 2400 sq.ft. with built up area measuring approximately 2310 sq.ft., is the 'schedule property'. The defendant due to legal necessities, offered to sell the schedule property to the plaintiffs for valuable sale consideration. After negotiations and discussions, the plaintiffs agreed to purchase 3 O.S.No.1689/2015 the schedule property for a total consideration of Rs.3,30,00,000/-. Thereafter, the plaintiffs and the defendant entered into an agreement to sell (agreement) dated 25.09.2014. Pursuant to the said agreement dated 25.09.2014, the plaintiffs paid the defendant an advance sale consideration of Rs.34,00,000/- by way of cheque favouring Mr. Kevin M. Koshy, vide cheque bearing No.086917, dated 31.07.2014 drawn on Corporation Bank, Koramangala, Bengaluru, The defendant acknowledged the same. The plaintiffs were required to pay the balance sale consideration at the time of execution and registration of the sale deed. It was agreed between the parties that execution and registration of the sale deed and handing over of possession of the schedule property would be completed within a period of 6 months from the date of agreement i.e., on or before 24.03.2015. As per the terms of the agreement, the defendant was required to make available to the plaintiffs all the original documents relating to the schedule property for their verification and inspection at any such time as requested by the plaintiffs before the date of execution and registration of sale deed. At the time of execution of the sale agreement, the defendant had represented to the plaintiffs that he is the sole and absolute owner of the schedule property and he possesses all documents of title pertaining to the schedule property. He had misplaced the original sale deed and that he would take certain time to locate the same. Subsequently, the plaintiffs were informed by the 4 O.S.No.1689/2015 defendant that he had kept the original sale deed at his residence in USA. When the plaintiffs expressed their inhibition to execute/sign the sale agreement, without looking into the original sale deed, the defendant represented to him that he would file a police complaint and obtain certified copy of the sale deed. On the basis of the said police complaint and on verifying the certified copy of the sale deed, the plaintiffs agreed to execute the sale agreement. It was however agreed between the parties that only after the defendant furnished the original sale deed to the plaintiffs would they be ready and willing to purchase the schedule property and get it registered, accordingly. Plaintiffs also took out newspaper publications in English and Kannada daily newspapers. In The Hindu and Udayavani newspapers on 05.09.2014, expressing their intention to purchase the schedule property and called for objections, if any, from the general public in respect of the schedule property. The plaintiffs did not received any objections from any one pursuant to the said newspaper publication. From the date of execution of the agreement, the defendant has not come forward to fulfill his obligations of the agreement by getting the originals verified and to get the sale deed executed and registered. On the plaintiffs side enquiring about the said conduct of the defendant and upon demanding him to execute a sale deed in respect of the schedule property. The defendant refused to execute the sale deed on the ground that the property value had increased and he further 5 O.S.No.1689/2015 demanded the plaintiffs to pay additional sale consideration amounts. Even after repeated requests and demands, the defendant evaded and delayed the execution of the sale deed on one pretext or the other. Subsequently, on or about the last week of December, 2014 or first week of January, 2015, the defendant contended that he had infact lost the original sale deed and that he will execute sale deed without the originals. The plaintiffs were availing bank loan to purchase the schedule property and furnishing the original documents were necessary for them to get the bank loan. The plaintiffs thereafter made various representations to banks and NBFCs and even made arrangements to pay the defendant the entire balance sale consideration amount. On or about the first or second week of January, 2015, the plaintiffs were informed that the defendant is making frantic efforts to alienate the schedule property in favour of third parties by entering into agreements for sale/sale deeds to the detriment of the plaintiffs. The third parties have inspected the property and have already attempted to take possession of the schedule property including the house appurtenant thereto. One Mrs. Susan, a relative of the defendant, who was also involved in the communication with the plaintiffs pertaining to the sale transaction, wrote an e-mail to the plaintiffs on 09.02.2015, stating that the defendant was no longer interested in selling the property to the plaintiffs and offered to refund the advance sale consideration. However, these terms were not 6 O.S.No.1689/2015 agreeable to the plaintiffs, as they had invested substantial time and money in intending to purchase the schedule property. The plaintiffs have also liquidated various savings for the purpose of this sale transaction and are suffering adversely due to the evasive tactics of the defendant. The plaintiffs have infact alienated their other immovable property and they have saved the said sale proceeds with a fond hope of purchasing a premier residential property in a prime locality in Bengaluru. Immediately thereafter, the plaintiffs got issued a legal notice dated 09.02.2015. The defendant through his advocate Mr. C.M. Raghunath, got issued a reply by an e-mail to the plaintiffs' advocates on 19.02.2015, wherein it was mentioned that the defendant was not willing to execute and register the sale deed in favour of the plaintiffs and that he would refund the advance sale consideration received by them. Hence, this suit.
3. The defendant has appeared through his counsel and submitted in the written statement that, suit filed by the plaintiff is not maintainable either in law or in facts, as such the suit is liable to be dismissed in limine. The suit is filed by the plaintiffs even before the expiry of the agreed period of 6 months from the date of the agreement i.e., 25.03.2015, it speaks their intention to lock up the property in litigation after paying mere 10% of the agreed value of the property. The plaintiffs are not entitled for the relief of specific performance of the agreement of sale dated 25.09.2014 since the plaintiffs have sought for alternative relief 7 O.S.No.1689/2015 of return of advance amount of Rs.34,00,000/-. When the plaintiffs themselves have sought for return of advance money paid by them, they are not entitle for the relief of specific performance of an agreement of sale. The defendant states that, because the original documents are lost, there was never any assurance to locate the same and furnishing it to the plaintiff for their verification. The said allegations are made by the plaintiffs in order to prejudice the mind of this court and after the plaintiffs deliberate breach of the agreement. The defendant reconsidered his decision to sell the suit schedule property to any person much less in favour of the plaintiffs, and therefore, the question of third parties inspecting the schedule property does not arise. They had caused the legal notice to set-up a pretense of being ready and willing and therefore, the defendant, as matter of bonafide good gesture offered to refund the advance paid though the defendant would have been justified in claiming damages and recompense for the same. The conduct of the plaintiffs clearly goes to show that, they did not have sufficient money with them to purchase the suit schedule property, and n order to show that they held sufficient money with them, no documents are produced before this court. Time was made the essence of the agreement, and the plaintiffs, who have not been ready and willing to complete the sale transaction, have set-up the false plea about the loss of the original documents and caused the legal notice even before the expiry of the agreed period. The 8 O.S.No.1689/2015 plaintiffs are disentitled to claim specific performance in view of their failure to adhere to the time mentioned in the agreement. The plaintiffs, who have chosen to doubt the defendant's title to the schedule property for want of custody of the original documents despite the fact they entered into the sale agreement with the knowledge that the defendant had lost the original documents, are not entitled for specific performance of the agreement of sale. The plaintiffs' predominant intention is to embroil the defendant in litigation and take undue advantage of the price escalation. The defendant will be put to irreparable loss and injury, if the defendant is directed to execute the sale deed for the schedule property in favour of the plaintiff, and the plaintiff, who has refused the offer of refund the advance at the earliest time, will not be put to hardship, if the plaintiff is directed to take the offer of the refund without interest. However, the plaintiffs' claim for refund along with interest at the rate of 18% p.a. is unconscionable, a deliberate and an unrighteous claim and is untenable in law. The defendant has not utilized the advance amount received from the plaintiff, and he has always been willing and ready to refund the amount. As such, plaintiffs' assertion for the refund with interest and for payment of an additional sum of Rs.1,16,000/- is denied as false and untenable in law. The averments which are not specifically denied herein are all hereby denied as false. Hence, prays for dismissing the suit with exemplary costs.
9 O.S.No.1689/2015
4. In proof of their case, the 1st plaintiff has got examined himself as P.W.1 and relied upon the documents Exs.P.1 to P.22. The defendant was examined as D.W.1. Exs.D.1 to D.3 were marked.
5. Heard arguments.
6. Considering the facts and circumstances and the material available in the matter, my predecessor has framed the following issues as under -
ISSUES (1) Whether the plaintiffs prove that, the defendant executed an agreement of sale in respect of the suit schedule property on 25.09.2014 and thereby agreed to sell the suit schedule property for consideration of Rs.3,30,00,000/-?
(2) Whether the plaintiffs further prove that, on 25.09.2014 they have paid Rs.34,00,000/- to the defendant towards advance amount and it was agreed that the sale deed should be completed within a period of six months i.e., on or before 24.03.2015 by paying remaining sale consideration of Rs.2,96,00,000/- to the defendant?
(3) Whether the plaintiffs prove that, they were and are always ready and willing to perform their part of contract?
(4) Whether the plaintiffs proves that the defendant has failed to execute the sale deed in favour of the plaintiffs in respect of the suit schedule property as per agreement dated 25.09.2014?
(5) Whether the plaintiffs are entitled for the relief of specific performance of the contract in respect of the suit schedule property as prayed in the plaint? (6) In the alternative whether the plaintiffs are entitled for recovery of Rs.35,16,000/- with future interest at the rate of Rs.18% from the defendant as prayed in the plaint?
(7) What order or decree?
10 O.S.No.1689/2015
7. My findings to the above issues are as under:-
Issue No.1 : In the Affirmative.
Issue No.2 : In the Affirmative.
Issue No.3 : In the Affirmative.
Issue No.4 : In the Affirmative.
Issue No.5 : In the Negative.
Issue No.6 : In the Affirmative.
Issue No.7 : As per final order for the following:
REASONS
8. Issue No's.1 & 2:- It is a suit for specific performance of contract. Defendant is the owner of the schedule property. It is contended by the plaintiff that, they have an agreement for sale on 25.09.2014 in respect of the suit schedule property for the amount of Rs.3,30,00,000/-. As an advance amount, he has paid Rs.34,00,000/- to the defendant and it was agreed to complete sale transaction within 6 months. Whereas, as per the contention of the plaintiff, defendant failed to produce the title- deed of the document, hence caused the delay. However, defendant alleges the plaintiffs are not ready with the balance amount. Hence, they decided to cancel the agreement for sale. So, the agreement for sale, advance amount paid and amount of transaction are admitted by both sides. It is also admitted that, it is the defendant first cancelled the sale agreement and agreed to return Rs.34,00,000/- amount with interest. In view of the admission in the plaint and written statement pleadings, I consider the Issue No's.1 & 2 in the 'Affirmative'.
9. Issue No's.3 & 4:- The matter of dispute is only with respect to production of the original title-deed. At the time of 11 O.S.No.1689/2015 execution of the agreement for sale, defendant only shows the certified copy of the sale deed. Plaintiff alleges that. defendant assured that he will produce the original title deed before the execution of sale deed. Whereas, the defendant's strong contention is much before the agreement for sale itself, it was brought to the knowledge of the plaintiff that the original title- deed was lost or misplaced and hence at the time of agreement for sale itself, defendant gave the paper publications in respect of loss of sale deed, and also called for production of document. Hence, it was argued, so the question of condition of giving original title-deed from defendant's side does not arises. Whereas, it is pertinent to note that, the transaction is for amount of Rs.3,30,00,000/-. Defendant purchased the schedule property in the year 1988. The certified copy of the document shows he was purchased the schedule property for the amount of Rs.52,00,000/- on 04.04.1988 from George Mathew. The agreement for sale referred in the suit was executed on 25.09.2014. The condition No.2 shows the agreement of sale was entered into on 09.08.2014, in view of stamp duty, Ex.P.1 was executed. The condition No.8 of the agreement for sale, is crucial to the case, it is as follows:
"The original documents of title pertaining to the schedule property shall be delivered to the purchasers at the time of registration of the sale deed. However, the vendor shall produce the same for inspection any time required by the purchasers before the registration."12 O.S.No.1689/2015
This document is signed by the plaintiffs and defendant. So, condition No.8 of the agreement of sale clearly reveals the defendant's contention that, plaintiff is aware of document is lost, does not holds water. Further, the documents of e-mail communications, they are marked as Exs.P.9, P.14, P.20, P.21 & P.22 are relevant to the case. Ex.P.22 is the e-mail dated 02.02.2015 sent by the defendant's side refers that, he was searched for the original but was not found it. So, only option is keep the place and not sell it. The crucial sentence is as follows:
"Even if it his fault for losing the originals, he thinks God is telling him not to sell. So let's close the deal with you."
So, herein the defendant put the nail to the transaction by expressing his intention to close the transaction. Prior to that, the e-mail letter of October 15, 2014 from defendant's side reads as follows:
"I was disappointed the bank has not cleared the loan to you yet and also there was a time limit on the document. Please do not ask about the originals again. I had indicated that to you earlier. If you cannot proceed without it then tell me so."
E-mail of October 28, 2015 is the plaintiffs response to the letter, where it referred that he has contacted his advocate, who advised him and also with the examples told that not to proceed with the matter till he get the original sale deed and also sent the paper cutting of the referred instance. October 20, 2014 is the response letter of defendant to the plaintiff saying that, "we have gone over this issue a number of times. Lawyers will always 13 O.S.No.1689/2015 scare you to justify their fees. Bank has approved your loan just goes to show that the transaction is completely above board". October 21, 2014 is the letter of the defendant to the plaintiff, where it says the plaintiff explained the defendant about the importance of title deeds and he can also go back for the deeds as they were lying somewhere in the house. The word referred as follows:
"Also, I had asked you multiple times before Dr. Koshy came to India about the original title deeds and you mentioned he has them 100%."
So, this word shows the plaintiff obtained the assurance from the defendant's side on getting the original title-deed of the schedule property. Ex.P.20 is the e-mail letter dated 20.08.2014 by the plaintiff to the defendant, where it mentioned the word as follows:
"Please get all the papers you have, specifically the originals pertaining to this particular property."
For this, the defendant in e-mail dated 22.08.2014 informs they are coming back to Bengaluru on September 27th night. If the deal goes through, they will move their stuff out of there before 26th. So, till August 22, 2014, the defendant is assured of delivering possession of the schedule property also.
10. Even, while arguing the case, the learned counsel for the plaintiff stresses on these e-mail letters, which clearly shows the assurance given by the defendant on possessing the documents. Whereas, there is no reliable document on defendant's side for informing the plaintiff that he was not possessing the original document and it was lost prior to the 14 O.S.No.1689/2015 execution of agreement for sale. Whereas, before contending the same, defendant has the burden to give explanation on adding para-8 in the agreement for sale on furnishing the original title- deeds. Defendant rely upon the paper publication issued for loss of title-deeds, they are Ex.D.2 in Indian Express daily newspaper dated 12.09.2014 (Ex.P.1 dated 25.09.2014). Whereas, it is also pertinent to note that, the point No.2 of Ex.P.1 says the original agreement for sale was entered into on 09.08.2014. So, if I consider this date, it shows the paper publication made after completion of negotiation for agreement for sale. The paper publication reads as "I have lost all the original documents, I have lodged complaint before the jurisdictional police station. If any person finds the same, handover the same to me in the address given i.e., of Koramangala, not of USA. Whereas prior to that, it is plaintiff who gave paper publication in Kannada Prabha and Udayavani daily newspapers of 05.09.2014, saying that the plaintiffs entered into agreement for sale of the suit schedule property. If anyone has objection must notifying the plaintiffs within 15 days from publication, the notice was published by the advocate. So, before the defendant's notice, plaintiff issued the paper publication notice informing the agreement for sale to the general public. In respect of the original document, the same defendant replied in the cross-examination as follows:
"I do not know which is original which is the certified copy, I am a layman in respect of the documents."15 O.S.No.1689/2015
Whereas, admittedly defendant is not entered into deal himself. He has taken the assistance of one Susan well versed in legal technicality. Exs.D.2 & D.3 are the paper publications dated 12.09.2014, publishing that, he lost the original documents. He says before 10.09.2014, he lost the original documents. He cannot specify the exact date. He admitted that, as per para-3 of the affidavit, he informed the plaintiff that he lost the original documents and in clause (8) of the agreement/Ex.P.1, he undertakes that he will produce the original documents to the plaintiff. For this, he gives explanation since he thought that the certified copy of the document is also the original document, he undertakes in Ex.P.1 for producing the original document, despite knowing that he lost the original documents. The person who contacted on behalf of the defendant is Susan is a professional broker and she is also his relative. It is admitted that the letter/Ex.P.14 informing that, they are returning the advance amount with interest of Rs.2.5 lakhs. Plaintiff in respect of the same replies that, the oral transaction of the agreement for sale, was negotiated for one month and after that, within 2 months, the agreement for sale was executed. He says that, in the month of September, 2014 first week, the defendant came to Bengaluru and then he contacted him personally. Then, the defendant told him that he came in hurry, so he was not able to get original sale deed. He specifically denied the suggestion that, prior to execution of agreement for sale, he was in knowledge that 16 O.S.No.1689/2015 the original sale deed of defendant was lost. But, volunteered the defendant told him that, he has given police complaint in respect of loss of documents. He was not knowing the complaint was given on 15.09.2014. The copy of the same was not produced. Further, he also replies that, the defendant told him that he is giving the complaint for the purpose of obtaining the certified copy of the agreement for sale, on the basis of which the plaintiff can avail the loan. However, he denied the suggestion that, defendant is ready to handover the key in the month of September 2014 itself. He further says that he was ready to get execute the sale deed in the month of September 2014. But, the defendant told him of producing the document in the month of December, 2014. So, his knowledge of loss of documents also specifically explained by the plaintiff that, it is for the purpose of enabling the plaintiff to obtain the loan and it also corroborates by the e-mail letters of the plaintiff i.e., even till the end of 2014 he was communicating for original documents, as it was necessary as per the advise of his advocate. It is pertinent to note that, herein the defendant himself makes suggestion that, defendant informed him that he will search for the document at his house at America. Plaintiff denied the suggestion. Further, he also denied the suggestion that, soon after returning from America, it was informed him that he was not found original title- deed. It is admitted that, defendant delivered the copy of sale deed and tax receipts to the plaintiff for obtaining the legal 17 O.S.No.1689/2015 advise. He was not obtained the written advise. Around in the month of June, 2014, he obtained the legal advise. Then, he was told that he can continue the proceedings, provided has to get the original document for verification. He specifically denied the suggestion that, his advocate advised him not to purchase the property. He denied the suggestion that, he is giving wrong answers against his own contention in his e-mail letters. So, all these evidence clearly shows that, in respect of original document, plaintiff is continued to insist for the original document. Whereas, the defendant failed to prove that, he could have lost the document before the agreement for sale. The suggestion of the defendant and contents of e-mail letters clearly corroborates that the defendant assured the plaintiff that he will search and provide the original document, and on that assurance, he entered into the agreement for sale.
11. To prove his ready and willingness, the above referred e-mail letter corroborates for insistence for original documents of 1994. It is also pertinent to note that, it is not a small amount. Even in the cross-examination, P.W.1 replies that, for his ready and willingness, he was produced the bank statement documents to corroborate his financial conditions and his capacity to purchase the property of Rs.3,30,00,000/-. Ex.P.9 is the letter of HDFC Bank dated 16.02.2015, which assures the plaintiff for providing house loan to the tune of Rs.2,00,00,000/- and loan approval is subject to legal and technical clearance of the 18 O.S.No.1689/2015 property being financed. The account was opened on 21.02.2013. On 05.02.2015, the balance amount is Rs.41,18,838/-. The statement of Vijaya Bank shows the balance is Rs.40,00,000/-. The Employees Provident Fund shows deposit of Rs.20,00,000/-. So, as per the sale deed, Rs.34,00,000/- were already paid. So, the balance amount of Rs.2,95,000/-, in which HDFC Bank issued loan of Rs.2,00,000/- and the above referred document is released to capacity to pay the balance amount of Rs.96,00,000/-. He says that, as per Exs.P.16 to P.18/bank statements, he may get Rs.2,00,00,000/-. Ex.P.16 shows he was depositing amount from the alienation of the property. Ex.P.18 is his salary account. He was working as Senior Manager in Aruba Company, since last 4 years. He specifically denied the suggestion that, he has no capacity to pay the balance amount within 6 months from the date of agreement for sale. He also denied the suggestion that, he was not ready to comply the agreement. It is pertinent to note that, it is the defendant admitted himself that, he was cancelled the agreement within the completion of the period of agreement for sale. Truly, if the defendant could have waited for the period of 6 months in the agreement for sale, he could have argued that he has given complete opportunity for get ready himself for the agreement. Whereas, herein when plaintiff going on insisting for the original document, defendant started avoiding the completion of the transaction. So, the contention of the 19 O.S.No.1689/2015 defendant itself shows the defendant is not ready to comply the obligation from his side. Admittedly, the transaction also reveals the plaintiff has communicated with the defendant on gathering the sale amount by obtaining the loan from HDFC bank. The Bank Authorities also has it's own rules and regulations for sanctioning the loan. Moreover, it is not a small amount, so one has to arrange from other sources. Moreover, the transaction with the Bank Authorities shows from the initial stage itself, he has tried to get the loan. Whereas, because of the defendants failure to get the original document, he cannot go further even for sanctioning loan. Hence, on this count, I hold Issue No.3 in the 'Affirmative'.
12. Admittedly, it is the defendant who cancelled the sale agreement before completion of the time limit. It is argued by the plaintiff that, since the defendant was assured of getting more money if it was sold to 3rd person. It is pertinent to note that, the cross-examination of D.W.1 on this count. Herein, the defendant replies that, basically he was from Trivendram, Kerala. Till the age of 28, he was at Kerala. He had one brother and two sisters. At present, his sisters at Kerala and his brother at Chicago. So, none of his siblings at Bengaluru. He completed his MBBS at Trivendram. For his further studies, he went to America at the age of 28. Ever since then he was residing at America. He used to visit Bengaluru for 2 - 3 times. He got USA citizenship, about 20 years back. He never stayed at Bengaluru for studies and 20 O.S.No.1689/2015 occupation purpose. He has three children. All are at USA and they also get USA citizenship. Whenever he visit India, he was not visiting anyone and use to stay at Bengaluru. He has no ancestral property at Trivendram. He has several first cousins at Bengaluru. He denied the suggestion that, he has no close relative at Bengaluru. When he purchased the property, he was citizen of USA. When he was in USA, his watchman stays in this house and whenever he visit India, he stays in the schedule house for 2 - 3 weeks. Before U.S. Government, he declared owning house property at Bengaluru but not produced any document to corroborate the same. He has independent practice as well as associative in other hospital at USA. There is no definite plan for his retirement. So far, he was not filed any application for surrendering U.S. citizenship and also there is no such necessity. He was owning two houses in USA. So, all these facts clearly shows he has no intention or necessity for staying at Bengaluru. Even then, he denied the suggestion that, he has no intention for retiring from service and staying at Bengaluru. He was also denied the suggestion that, he has many good reasons to remain at U.S. But the contents of cross-examination clearly shows he was not in need of suit schedule property. D.W.1 is suggested as follows:
"Are you ready to execute the sale deed if plaintiff pays the balance sale consideration amount even in the absence of original document. The answer is I am not ready."21 O.S.No.1689/2015
He denied the suggestion that, he was never intend to settle at India and only to defeat the plaintiff's contention, he has given false statement. It is also suggested that, plaintiff is ready to get execute the sale deed and give the balance amount and if he assure him of indemnifying. When it was suggested that, plaintiff has spent more money towards paper publication and legal expenses. Witness also replies that, he also spent more money on legal expenses. It is also pertinent to note that, when D.W.1 asked question in respect of documents/Exs.P.16 to P.19, he refused to go through the documents. It is admitted that, under the sale agreement, plaintiff has no other obligation except making payment of balance sale consideration amount within 24.03.2015. Prior to that, in the month of February, the defendant cancelled the sale agreement. It is also pertinent to note that, witness submits that purpose of alienation of the property is to perform the marriage of his children, as they are in marriage age. On his personal necessity, he intends to sell the property. Whereas, this matter was not even averred in either in the agreement for sale or in the written statement. Instead of it, it was demonstrated, he has no such financial difficulty. E-mail letters referred him as a gentleman, not insisting the balance amount. However, his own reply in the further cross- examination is as follows:
"Since the plaintiff want to buy the property on lesser value, he referred in para-4 of his affidavit that, plaintiff is not ready and willing to perform his end of bargain."22 O.S.No.1689/2015
So, lesser value shows he needs more profit from the transaction. He says he kept the advance amount in separate account in Koramangala branch, but no such document produced to corroborate the same. Subsequent e-mail letter, till now he was not returned the advance amount and of Rs.2.5 lakhs interest. He was not even knowing the sale agreement conditions. During the drafting of Ex.P.1, he has no impediment to mention that he was going to produce the certified copy of originals. He denies the suggestion that, condition No.8 was added only because of his assurance to get the original documents. He denied the suggestion that, during the execution of Ex.P.1, he told the plaintiff that he receives the offer for higher sale consideration from the third party. But, further admitted himself that, it is true to suggest that, I told the plaintiff that my very own neighbour of the suit schedule property offered me high price for purchasing the suit schedule property. So, his expecting more profit is also corroborated. Further, he denied the suggestion that, he himself withhold the original document and cancelled the Ex.P.1. It is denied that, he gave the paper publication only to assist the plaintiff to avail the bank loan. So, comparing this evidence with the e-mail letters clearly shows defendant himself is not interested in executing the sale deed in favour of the plaintiff. So, on all these reasons, I hold Issue No.4 in the 'Affirmative'.
23 O.S.No.1689/2015
13. Issue No's.5 & 6:- Here, in this case plaintiff also seeks for alternative relief and in support of the same, he was also produced the citations. The citation 2008 (4) SCC 464 in the case of Balasaheb Dayandeo Naik (Dead) through LRs & others Vs. Appasaheb Dattatraya Pawar, which reads thus:
"On the contrary, purchaser found ready and willing to perform his part of the deal - Purchaser therefore directed to deposit balance amount and seller directed to execute sale deed - Specific Relief Act, 1963 - Ss.10, Expln. (i) and 12 - Evidence Act, 1872, Ss. 101 & 103."
Further, he was also quoted the citation (2005) 8 SCC 486 in the case of P.C. Varghese Vs. Devaki Amma Balambika Devi & others, which reads thus:
"Specific Relief Act, 1963 - Ss.20, 21 & 22 - Alternative plea of refund of earnest amount and damages - Effect - Held, same cannot by itself be a bar to claim a decree for specific performance of contract."
14. However, the learned counsel for the defendant argues much on plaintiffs ready and willingness and the document on deposit of amount. In respect of provident fund, it is argued that this amount cannot be released till the completion of 5 years. Ex.P.18 shows different deposits in one bank and it was credited after the date February 2015. Ex.P.9 is the bank letter, it is only an offer and not assurance. However, even if I consider on these arguments, it does not shows plaintiff is a financial weak person and has no capacity to undertake the transaction of Rs.2,96,000/-. When the defendant's document itself reveals that the defendant is a gentleman of not insisting for balance 24 O.S.No.1689/2015 money. Whereas, in respect of all these evidence, clinching point is defendant continuously argues on loss of original document. So, in view of this, plaintiff also cross-examined the witness. If the defendant is going to indemnifying, plaintiff is ready to pay the balance amount. So, in such circumstances, it clearly shows the execution of sale deed is not a relief to the plaintiff and there is also possibility of apprehension remains even after the court order which may cause obstacle on execution of decree. Hence, on all these reasons, the alternative relief is the only proper consideration. Further, even Section 41(a) & (d) of Specific Relief Act also provides it is not specifically enforceable. Of course for gathering the amount, plaintiff has taken more pain. Further he is continuous touch with defendant and even ready to bear his flight charge and also suffered legal expenses. So, appreciating all these, I consider the additional expense also.
15. The defendant's counsel has referred the citation ILR 2014 Kar. 233 in the case of Smt. Padmini Raghavan Vs. Mr. H.A. Sonnappa, since dead by his LRs and Others , which reads thus:
"(a) In the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not the essence of the contract, the Court may infer that it is to be performed within a reasonable time, if the conditions are evident from the express terms of the contract, from the nature of the property and from the surrounding circumstances. (Para
119)
(b) Where time is not the essence of the contract, but still when stipulations of time is provided in the contract, the significance or meaning of such stipulation as to time cannot be completely ignored. The Court while exercising the discretion should also bear in mind that when the parties prescribe certain time limits for taking steps by one or the other party, it must have some 25 O.S.No.1689/2015 significance and that the said time limits cannot be ignored altogether on the ground that time has not been made the essence of the contract. While in England, more delay or laches may be a ground for refusing to give the relief of specific performance, in India mere delay without such conduct on the part of the plaintiff as would cause prejudice to the defendant does not empower a Court to refuse such a relief. If the conduct or neglect of the plaintiff is directly responsible in inducing the defendants to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such a relief, the Court will be well within it's jurisdiction to refuse specific performance". (Para 119) However, herein the defendant himself cancelled the agreement.
So, the above ratio does not applies to the case in hand.
16. The defendant's counsel has referred the citation (2008) 12 SCC 145 in the case of Bal Krishna and another Vs. Bhagwan Das (Dead) by LRs and others, which reads thus:
"14. It is also settled by various decisions of this Court that by virtue of Section 20 of the Act, the relief for specific performance lies in the discretion of the court and the court is not bound to grant such relief merely because it is lawful to do so. The exercise of the discretion to order specific performance would require the court to satisfy itself that the circumstances are such that it is equitable to grant decree for specific performance of the contract. While exercising the discretion, the court would take into consideration the circumstances of the case, the conduct of parties, and their respective interests under the contract. No specific performance of a contract, though it is not vitiated by fraud or misrepresentation, can be granted if it would give an unfair advantage to the plaintiff and where the performance of the contract would involve some hardship on the defendant, which he did not foresee. In other words, the court's discretion to grant specific performance is not exercised if the contract is not equal and fair, although the contract is not void."
Whereas, herein the defendant has not put forth any hardship in respect of performance of agreement for sale. Even if I consider the hardship, it is only that he may loose some more expected profit.
26 O.S.No.1689/2015
17. The defendant's counsel has referred the citation (2013) 15 SCC 27 in respect of I.S. Sikandar (Dead) by LRs. Vs. K. Subramani and others, which reads thus:
"As could be seen from the prayer sought for in the original suit, the plaintiff has not sought for declaratory relief to declare the termination of agreement of sale as bad in law. In the absence of such prayer by the plaintiff the original suit filed by him before the trial court for grant of decree for specific performance in respect of the suit schedule property on the basis of agreement of sale and consequential relief of decree for permanent injunction is not maintainable in law."
I consider of this ratio. There is no prayer for declaration of cancellation. So, without fulfilling his obligation on providing original document, the defendant cannot expect the further step from the plaintiff's side. It is no doubt that, plaintiff brought to the knowledge of the defendant that he will get the major share from the loan amount. When the legal opinion is not in favour of the plaintiff to proceed further without providing title deed, certainly plaintiff insisted for the same. As a common man, no one is ready to foresee the future loss. So, appreciating all the above ratios, it shows it is proper for considering the alternative relief. Accordingly, I hold Issue No.5 in the 'Negative' & Issue No.6 in the 'Affirmative'.
18. Issue No.7:- In view of the reasons stated supra, I proceed to pass the following:
ORDER The suit is decreed on alternate relief with cost.27 O.S.No.1689/2015
Plaintiffs are entitled for alternate relief of Rs.35,16,000/- with interest at the rate of 18% p.a. from the date of suit till the realization, by way of compensation and damages.
Draw the decree accordingly.
(Dictated to the Judgment Writer, transcribed and typed by him, corrected and then pronounced by me in the open court, on this the 9th day of April, 2018) (NAGAJYOTHI.K.A) XXIX Addl. City Civil Judge, Bangalore City.
ANNEXURE List of witnesses examined for the plaintiffs' side:-
P.W.1 Sarvesha Y List of documents exhibited for the plaintiffs' side:-
Ex.P.1 Agreement of Sale dated 25.09.2014.
Ex.P.1(a) Signature of the defendant.
Ex.P.2 Khatha certificate.
Ex.P.3 Khatha extract.
Ex.P.4 CC of registered sale deed dated 04.04.1988.
Ex.P.5 Encumbrance certificate for the period from
01.04.1970 to 31.03.2004.
Ex.P.6 Encumbrance certificate for the period from
01.04.2004 to 15.02.2015.
Ex.P.7 Udayavani daily newspaper dated 05.09.2014.
Ex.P.8 The Hindu daily newspaper dated 05.09.2014.
Ex.P.9 Loan sanction letter of HDFC dated 16.02.2015.
Ex.P.10 Office copy of notice dated 09.02.2015.
Ex.P.11 Speed post.
Ex.P.12 Reply dated 16.02.2015.
Ex.P.13 Returned unserved postal cover for having sent to
defendant.
Ex.P.14 E-mail sent by defendant dated 17.02.2015.
Ex.P.15 CC of account statement in Vijaya Bank.
28 O.S.No.1689/2015
Ex.P.16 FD receipt of 2nd plaintiff in Corporation Bank.
Ex.P.17 Provident Fund online statement.
Ex.P.18 CC of FD summary statement in HDFC Bank.
Ex.P.19 CC of statement of account of savings account of
HDFC.
Ex.P.20 E-mail dated 22.08.2014 and the defendant sent E-
mail reply to the 1st plaintiff on 22.08.2014. Ex.P.21 E-mail letter transaction held between defendant and 1st plaintiff on 12.10.2014, 15.10.2014, 20.10.2014 & 21.10.2014.
Ex.P.22 Defendant sent E-mail to the 1st plaintiff on 02.02.2015.
List of witnesses examined for the defendant's side:-
D.W.1 M.C. Koshy List of documents exhibited for the defendant's side:-
Ex..D.1 Notarized copy of passport marked after comparing it with the original document. (Plaintiff also consented). Ex.D.2 Paper publication in Indian Express newspaper dated 12.09.2014.
Ex.D.3 Paper publication in Kannada Prabha newspaper dated 12.09.2014.
XXIX Addl. City Civil Judge, Bangalore City.
29 O.S.No.1689/2015Judgment pronounced in open Court, vide separate judgment.
ORDER The suit is decreed on alternate relief with cost.
Plaintiffs are entitled for
alternate relief of
Rs.35,16,000/- with interest at
the rate of 18% p.a. from the
date of suit till the realization,
by way of compensation and
damages.
Draw the decree accordingly.
XXIX Addl. City Civil Judge,
Bangalore City.