Bangalore District Court
M/S Bagamane Enterprises vs Sri. E.V.Subbaiah on 21 April, 2017
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
Dated this the 21st day of April 2017.
PRESENT: Smt. M.LATHA KUMARI, MA, LLM.,
XI Addl.City Civil Judge, B'lore city.
O.S.No.2606 of 2007
C.C.H.8
Plaintiff/s: 1. M/S Bagamane Enterprises,
No.6, Raheja Chambers,
Museum Road, Bengaluru -560001,
a registered partnership firm
represented by its Managing Partner
Sri. Nitin
2. Sri. Nitin Bagamane,
S/O Sri. B.D.Bhojigowda,
aged about 43 years,
having his office at No.6,
Raheja Chambers
Museum Road, Bengaluru-01
(By Sri. N.Govinda Bhat, advocate)
Vs.
Defendant/s: Sri. E.V.Subbaiah,
s/o late E.L.Venkateshaiah,
aged about 65 years,
residing at No.38, 29th Cross,
7th Block, Jayanagara, Bangalore-82
(By Sri.S.G.A Advocate )
Date of the institution of suit: 29.3.2007
Nature of the suit: Specific performance
2 OS. No.2606 of 2007
Date of the commencement of 8.4.2010
recording of the evidence :
Date on which the judgment 21.4.2017
was pronounced :
Total duration: Year/s Month/s Day/s
10 00 22
XI Addl.City Civil Judge,
B'lore city.
JUDGMENT
This is a plaintiffs suit for specific performance of the agreement of sale dated 31.3.2006 by directing the defendant to execute registered sale deed in favour of plaintiffs, after complying with the terms and conditions of the said agreement of sale by receiving the balance sale consideration of Rs.20,75,00,000/- and the returned demand draft dated 3.7.2006 for Rs.1,00,00,000/- issued in the name of 1st plaintiff and thereby direct the defendant to deliver the vacant physical possession of the suit schedule property. In case of failure on part of defendant, seeking this court to execute the sale deed in favour of plaintiffs. In the alternative direct the defendant to pay to the plaintiffs a sum of Rs.2,00,00,000/- as compensation /damages along with interest thereon at the rate of 18%p.a from the date of suit 3 OS. No.2606 of 2007 till realization, hereinafter referred to as suit schedule property.
2. Brief facts of the plaintiffs case is that, 1st plaintiff is the registered partnership firm and 2nd plaintiff is the Managing partner of the 1st plaintiff entered into an agreement of sale dated 31.3.2006 with the defendant agreeing to purchase the suit schedule property for a sale consideration of Rs.22,75,00,000/-. By mistake in the said agreement of sale, 1st plaintiff is described as Sri.Bagamane Enterprises, instead of as M/S Bagamane Enterprises. On the date of agreement of sale, an amount of Rs.2,00,00,000/- by way of cheque dated 3.4.2006 for Rs.25,00,000/- and another cheque dated 4.5.2006 for Rs.1,75,00,000/- paid to the defendant herein, towards advance sale consideration by way of part performance of contract. The defendant herein by acknowledging the same has encahsed the said cheques and thereby affirmed the said agreement on 3.4.2006 and 4.5.2006. The plaintiffs were always ready and willing to pay the balance sale consideration and purchased the suit schedule property in pursuance of the agreement of sale dated 31.3.2006. It is the defendant, who has not performed his several obligations, to furnish encumbrance certificate pertaining to the suit schedule property for a period of 12 years has undertaken by him in Clause No.14 of the said agreement and also furnish several other documents in 4 OS. No.2606 of 2007 respect of suit schedule property. It is plaintiffs further case that, the period of 90 days stipulated in the agreement to complete the sale transaction was not meant to be strictly adhered , since defendant was required to get encumbrance certificate for 12 years and also documents from City Municipal Council of Pattanagere village like tax demand register extract, katha certificate and tax paid receipts , RTC extract, which are compulsorily required for the purpose of registration of the sale deed. The defendant requested plaintiffs to postpone the execution and registration of sale deed to any date after Ashada Masa of 2006, since both the defendant and plaintiffs regarded Ashada Masa is inauspicious for purchase or sale of immovable properties. The defendant while making such request also, assured plaintiffs to secure all documents pertaining to suit schedule property by the end of Ashada Masa i.e., around 25.7.2006. Plaintiffs also brought to the notice of the defendant that, when they went to the suit schedule property to take measurements, they noticed that there are some constructions on the suit schedule property, which are in occupation of persons. Hence, plaintiffs requested the defendant to evict those occupants and thereby facilitate to deliver vacant physical possession of the suit schedule property on the date of execution of the registered sale deed. Draft sale deeds were also prepared and sent to the defendant for his approval. The plaintiffs also wrote a letter dated 5 OS. No.2606 of 2007 30.6.2006 to the defendant, requesting defendant to obtain necessary documents, which are required for registration of the sale deed and see that persons in possession of the suit schedule property are evicted. The plaintiffs and defendant mutually discussed all these issues and agreed to extend the period of 90 days and to complete the sale transaction after the completion of Ashada Masa. In pursuance of such extension of time by mutual consent, the defendant did not call upon the plaintiffs to pay the balance sale consideration and complete the sale transaction before the expiry of the period of 90 days. When such being the state of affairs, the defendant got issued legal notice dated 3.7.2006 stating that the agreement of sale dated 31.3.2006 terminated and a sum of Rs.1,00,00,000/- out of the advance sale consideration of Rs.2,00,00,000/- is forfeited and thereby enclosed a D.D dated 3.7.2006 for a sum of Rs.1,00,00,000/- drawn in the name of the 1st plaintiff. This stand taken by the defendant is unilateral. The plaintiffs have always ready and willing to perform of their obligations under the agreement of sale dated 31.3.2006. The plaintiffs accordingly sent a reply notice dated 22.7.2006 and also published a public notice in the Deccan Herald Newspaper dated 25.7.2000 asserting their rights in the schedule property in pursuance of said agreement dated 31.3.2006. The defendant sent a rejoinder notice dated 5.8.2006 through his counsel. Since defendant failed to comply his terms of obligations under the agreement 6 OS. No.2606 of 2007 dated 31.3.2006, inspite of plaintiffs being always ready and willing to perform their part of contract to pay the balance sale consideration and to get the sale deed executed , the defendant in July and August 2006 sent feelers to the plaintiffs that if plaintiffs pay more sale consideration, he would sell the suit schedule property to the plaintiffs. The 2nd plaintiff, who is Managing partner of the 1st plaintiff is associated with one company by name M/S Tanglin Developments Ltd.,, which is a subsidiary of M/S Global Technology Ventures Ltd., who in turn agreed in March 2006 itself to provide funds for the purchase of the suit schedule property by the plaintiffs and also issued a letter dated 26.3.2007 to the plaintiffs stating that since March 2006, an amount of Rs.20,75,00,000/- is kept ready apart from stamp duty and registration charges of Rs.3,00,00,000/- in all Rs.27,00,00,000/- is kept in F.D in Corporation Bank, M.G.Road, Bengaluru-560001. The 2nd plaintiff sought for meeting with the defendant to negotiate and purchase the suit schedule property. The defendant went on postponing the meeting by giving one or the other reasons. The defendant is a rich and prosperous business man running a famous and big business in gold and silver articles, having his show room at Avenue road, Bengaluru from several years. The defendant has also invested the profits earned by him in immovable properties in Avenue Road and several other places in Bengaluru. He is a investor in immovable 7 OS. No.2606 of 2007 properties and he does not have any personal needs for the immovable properties, in which, he invested. The suit schedule property being immovable property, the defendant want to sell and make use profits and he does not require the same for his personal needs. The plaintiffs specifically need the suit schedule property for putting up construction on the suit schedule property, because of the unreasonable and untenable stand of the defendant and in view of the breach of the said agreement of sale committed by the defendant, the plaintiffs have suffered huge financial and other losses. The losses arising in this regard is a continuous process. The plaintiffs had plans of commencing the construction immediately after the purchase. So far they have incurred a loss of Rs.2,00,00,000/- on account of breach committed by the defendant. Hence, plaintiffs constrained to file this suit for the reliefs mentioned supra.
3. On issuance of suit summons, defendant appeared through his counsel and resisted this suit of the plaintiffs by filing his written statement asserting that suit is bad for mis- joinder and non-joinder of parties and hence not at all maintainable. The plaintiffs alleged firm of partnership is not a registered partnership concern and hence, the suit brought by the alleged unregistered partnership firm is not maintainable in law. This defendant agreed that, an agreement of sale came to be executed amongst them on 8 OS. No.2606 of 2007 31.3.2006 and also the sale consideration amount of Rs.22,75,00,000/- and receipt of Rs.2,00,00,000/- under two cheques dated 3.4.2006 and 4.5.2006. This defendant denied occupation of suit schedule property by some people and categorically asserted that there is nobody in the suit schedule property, except the watchman appointed by the defendant, a watchman shed, there are no occupants at all in the suit schedule property. The plaintiffs, who are unable to purchase the suit schedule property and who are not ready to comply with the terms and conditions of the agreement have pleaded about these allegations. He has not received a letter dated 30.6.2006 from the plaintiff and it is a cooked up document. The defendant being vendor, Ashada Masa is very auspicious for him. When such being the case, question of postponing the sale on the ground of Ashada Masa does not arise. He also denied alleged mutual oral agreement amongst plaintiffs and defendant with regard to postponing of sale transaction till completion of Ashada Masa. This defendant asserted that, he never agreed to extend the stipulated period of 90 days at any point of time. He admits issuance of lawyer notice dated 3.7.2006 terminating the sale agreement dated 31.3.2006 and also forfeiture of Rs.1,00,00,000/- by returning D.D of remaining Rs.1,00,00,000/- to the plaintiffs herein. Defendant categorically asserts that, the conduct of the plaintiffs is tainted by malafides. The plaintiff had no money to pay the same to the defendant admittedly. They 9 OS. No.2606 of 2007 were never ready and willing to perform their part of alleged contract. Having no other way, the defendant terminated the agreement and forfeited the advance amount in accordance with the terms of the sale agreement. The plaintiffs, who are not having sufficient requisite funds with them want to create false evidence and showed to this court that they had source of finance and they were ready to perform their part of obligation, created letter dated 26.3.2007 alleged to have been issued by M/S Global Technology Ventures ltd., . This is a letter created by the plaintiff colluding with the said company. The relationship between plaintiffs with M/S Tanglin Developments Ltd., and M/S Global Technology Ventures Ltd., are not at all explained by the plaintiffs herein and they have only created this story of Global Ventures to show that they had source of income, even though plaintiffs were not having sufficient amount to purchase the suit schedule property. The defendant has suffered a lot and put to heavy loss as he could not meet his other financial commitments and had to borrow money for his urgent necessity on heavy interest and thereby incurred loss on account of breach committed by the plaintiffs herein. There is no cause of action for the suit and the alleged cause of action is invented. However, plaintiffs are not in a position to pay agreed sale consideration as alleged, the question of demanding more sale consideration by the defendant does not arises and it is also a created story. The plaintiffs have not 10 OS. No.2606 of 2007 come with clean hands before this court, who was seeking discretionary relief of specific performance of contract. The suit is not at all maintainable. Plaintiffs are not entitled for the relief claimed. Hence, pray for dismissal of the suit with costs.
4. Based on these respective pleadings, the following issues are framed by this court as follows:-
1. Whether the plaintiffs prove that the plaintiff No.1 is a registered Partnership Firm?
2. Whether the plaintiffs prove that they have been always ready and willing to perform their part of the contact?
3. Whether the time was the essence of the contract?
4. Whether the suit is bad for non joinder of necessary parties?
5. Whether the suit is hit by the provisions of the Karnataka Lands Reforms Act?
6. Whether the plaintiffs are entitled the relief of Specific Performance of contract?
7. Whether the plaintiffs are entitled the relief of Permanent Injunction as sought for?
8. Whether the plaintiffs are entitled to recover a sum of Rs.2-00 crores as compensation / damages with interest at the rate of 18 % p.a. from the 11 OS. No.2606 of 2007 defendant from the date of the suit to till its realisation?
9. What Order or Decree?
5. On behalf of plaintiffs, 2nd plaintiff got examined himself as P.W.1 and got marked as many as 19 documents Ex.P.1 to P.19 and they also examined one more witness as P.W.2. . On behalf of defendant, defendant got examined himself as D.W.1 and got marked as many as 23 documents Ex.D.1 to Ex.D.23.
6. I have carefully scrutinized entire records before me. Heard arguments and also perused the written synopsis with citations furnished by the learned counsel for the defendant.
7. My findings on the above issues are as under:-
Issue No.1: In negative
Issue No.2: In negative
Issue No.3: In affirmative
Issue No.4: In affirmative
Issue No.5: In negative
Issue No.6: In negative;
Issue No.7: In negative
12 OS. No.2606 of 2007
Issue No.8: In negative;
Issue No.9: As per final order for the following reasons:
REASONS
8. Issue No.1 : It is the case of the plaintiffs that, 1st
plaintiff is a registered partnership firm and 2nd plaintiff is its Managing partner, while entering into an agreement of sale dated 31.3.2006 with the defendant, by mistake, in the said agreement of sale, the 1st plaintiff is described as Sri.Bagamane Enterprises instead of M/S Bagamane Enterprises. Whether plaintiffs have established this contention. In this regard, let me scan through the oral and documentary evidence relied upon by the 2nd plaintiff himself, who got examined himself as P.W.1. In his affidavit evidence, at para No.2, P.W.1 again asserted that, 1st plaintiff is a registered partnership firm, he is Managing partner of the 1st plaintiff, Original partnership deed dated 1.10.2004 constituting the 1st plaintiff partnership firm and the original certificate of registration dated 31.8.2006 issued in the name of 1st plaintiff partnership firm are produced by P.W.1 in support of his contention. On the other hand , the defendant herein, who got issued legal notice dated 3.7.2006 addressed 1st plaintiff as Sri.Bagamane Enterprises and in the written statement at para No.3 asserted that the plaintiffs alleged firm of partnership is not a registered a registered partnership concerned and hence, the suit brought 13 OS. No.2606 of 2007 by the alleged unregistered partnership firm is not maintainable in law.
P.W.1 got marked the partnership deed dated 1.10.2004 as per Ex.P.1. This is a document consisting of 10 pages in all executed on 100 rupees stamp paper executed between 2nd plaintiff herein as a 1st party and his brother Niranjan as 2nd party constituting themselves into a partnership firm. Nowhere in this document, there is a recital to the effect that their partnership firm, which is styled as M/S Bagamane Enterprises is registered before Registrar of Firms. According to this document, Rs.500/- came to be paid towards proper stamp duty on 31.8.2006 before Deputy Commissioner, Stamps, Chikmagalur. Hence, according to plaintiffs, Ex.P.1 came to be executed on 1.10.2004 itself, it was executed on insufficient stamp paper without paying proper stamp duty. Further as per Ex.P.2, this document Ex.P.1 came to be registered on 31.8.2006 itself at the office of Registrar of Firms, Chikmagalur by describing the 1st plaintiff's firm as Bagamane Enterprises. As per this document, the registered office of 1st plaintiff is at Chikmagalur. Admittedly suit sale agreement Ex.P.3 came to be executed on 31.3.2006. Whereas Ex.P.1 came to be registered only on 31.8.2006. Hence, as on the date of Ex.P.3, plaintiffs firm said Bagamane Enterprises was not at all registered in accordance with law. As I have already stated as per Ex.P.3 and also as per the recitals in 14 OS. No.2606 of 2007 Ex.P.3, the principal place of business i.e., its registered office is shown as Chikmagalur City. Whereas P.W.1, who also got marked public notice issued by him in a newspaper, which is as per Ex.P.8 and the public notice is as per Ex.P.8(a). In this public notice, 1st plaintiff has described its registered office at Raheja Chambers, Musium road, Bengaluru-1.Hence, according to this public notice, the registered office of 1st plaintiff is shown as Bengaluru. Whereas according to the certificate of Registration of Firm, Ex.P.2 issued by concerned Registrar and also according to partnership deed, its registered office is shown as Chikmagalur. In the cross-examination of P.W. 1, it is elicited that there is no such partnership firm in existence in the name and style of Bagamane Enterprises. According to P.W.1, 1st plaintiff's firm came into existence on 1.10.2004. He also asserts that, Ex.P.1 came to be executed on 23.8.2006. He denies the suggestion that Ex.P.1 is not at all executed on proper stamp paper. At para No.2 of his cross- examination dated 27.9.2010, P.W.1 deposes that 1st plaintiff's registered office is situated at Chikmagalur and its branch office is at Bengaluru. P.W.1 further deposes that he is not in a position to depose about what is the total amount invested by 1st plaintiff's partners in the 1st plaintiff firm and voluntarily deposes that there exist necessary accounts ledgers in their office. P.W.1 further deposes that 1st plaintiff's bank account is also situated at Chikmagalur itself and he do not exactly remember the name of the said bank. Hence, according to the 15 OS. No.2606 of 2007 version of P.W.1, who is claiming to be the Managing partner of 1st plaintiff's firm is not at all aware of the amount invested by himself and his another partnership in the 1st plaintiff's firm to carry out the business under Ex.P.1 and also he do not even know the bank details of 1st plaintiff firm. P.W.1 further admits that in Ex.P.3, agreement of sale dated 31.3.2006, plaintiff is referred as Sri.Bagamane Enterprises. According to P.W.1, it is so referred by mistake. Whereas P.W.1 himself further admits that in each page of this document, he has signed as proprietor for Bagamane Enterprises and not as Managing partner of 1st plaintiff's firm. Hence, the seal pertaining to 1st plaintiff is styled as Sri.Bagamane Enterprises and P.W.1 is shown as its proprietor. At page No.20 of his cross-examination, P.W.1 deposes that, said seal has been prepared by mistake of the office. He further asserts that, he came to know about the said mistake just 3 to 4 months prior to the date of his evidence. It is also suggested that in the two cheques given to the defendant also, the similar seal styled as for Bagamane Enterprises, proprietor has been affixed. However, P.W.1 deposes before this court that, he cannot say about the same specifically. Hence, what is the exact seal, which was affixed by plaintiff, more particularly P.W.1 herein while issuing cheques in favour of the defendant is also not explained by the P.W.1 herein. However, as per the seal available in Ex.P.3 and also the way, plaintiffs have described themselves in Ex.P.3 establishes that it is only a proprietary 16 OS. No.2606 of 2007 concern firm. Even otherwise as on the date of Ex.P.3, plaintiffs firm was not at all registered nor their partnership deed came to be executed on proper valid sufficient stamp paper . A proper stamp duty of Rs.500/- was only paid on 31.8.2006 and Ex.P.1 was also came to be notarized only on 23.8.2006. Hence, as on 1.10.2004, the document Ex.P.1 was neither prepared on proper stamp paper nor 2nd plaintiff and his other partner, who is described himself as 2nd party nor sworn themselves before concerned Registrar or Notary. Hence, as on the date of Ex.P.3, Ex.P.1 was only a document executed between 2nd plaintiff and his brother describing themselves into a partnership firm. The version of P.W. 1 with regard to his registered office is contradictory to his own document Ex.P.8. Further P.W.1 herein is describing himself as Managing partner . If there is any mistake in preparing the seal of his firm, it is probable that, concerned Managing partner will not use such seal and see that valid seal is accordingly prepared and used in the affairs of their firm. Whereas P.W.1 has not made any such attempts in Ex.P.3, through out 2nd plaintiff has signed the document as proprietor of Sri.Bagamane Enterprises. This is a suit for specific performance based on agreement of sale dated 31.3.2006. Admittedly as on the date of this agreement of sale, the partnership deed Ex.P.1 was not at all registered. It came to be registered only after 5 months from the date of Ex.P.3 as per Ex.P.2. These documents Ex.P.1 to P.3 and also oral testimony 17 OS. No.2606 of 2007 of P.W.1 establishes that 1st plaintiff was not at all a registered partnership firm as on the date of suit document Ex.P.3. Since in a suit for specific performance, plaintiffs gets right to file suit for specific performance based on the agreement of sale, it is probable that all his documents rests on the such date of agreement of sale. The purchaser may do so many activities in pursuance of such agreement of sale. But as on the date of the contract, what was the status of purchaser plays vital importance. In a suit like this, where parties are depends on the terms and conditions of the contract executed in writing, how the purchaser described himself while entering into such contract and how the vendor described himself at that time is very important. Since the parties will understand themselves as per the description available in the primary documents. Since as on the date of Ex.P.3, P.W.1 never described himself as a Managing partner of M/S Bagamane Enterprises and he only described himself as proprietor of Sri.Bagamane Enterprises and plaintiffs have not produced any material before this court to establish that he was described so only by mistake, the version of plaintiffs to the effect that, by mistake in the agreement of sale, 1st plaintiff has been described as Sri.Bagamane Enterprises holds no water. Ex.P.3 is a document, under which, parties proceeded to transact the property to the tune of Rs.22,75,00,000/-. The nature and intent of the transaction must be gathered from the terms of the document itself. How the parties described themselves in 18 OS. No.2606 of 2007 the document agreement of sale while entering into such contract is accordingly becomes important. No oral evidence or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms or description of the parties. Accordingly, this court opines that plaintiffs failed to establish that the 1st plaintiff is a registered partnership firm at the relevant point of time. Accordingly, I have answered Issue No.1 in the negative.
9. Issue No.2: The remedy for specific performance is discretionary remedy. As per Sec.20 of Specific Relief Act, the relief of specific performance being discretionary relief, discretion must be exercised in accordance with sound and reasonable judicial principles. It is not in dispute that the discretion, which is to be exercised here is to be governed by the Rules of law and equity and not in accordance with men's will and affection. Further it is also not in dispute that, in a suit for specific performance of the agreement of sale, Sec.16(c) of Specific Relief Act has to be mandatorily complied by the plaintiffs herein so as to enable the plaintiffs for such discretionary relief. Further plaintiffs have to establish their readiness and willingness right from the date of agreement of sale till the date of the decree. With these principles in background, now let me scan through the oral and documentary evidence relied upon by the plaintiffs to establish their readiness and willingness to perform their part of contract 19 OS. No.2606 of 2007 under the agreement of sale Ex.P.3. Plaintiffs in para No.5 of their plaint, asserted that an amount of Rs.2,00,00,000/- was paid by cheques dated 3.4.2006 for Rs.25,00,000/- and 4.5.2006 for Rs.1,75,00,000/- in pursuance of the agreement dated 31.3.2006. At para No.6 of their plaint, plaintiffs asserted that, they were always ready and willing to pay the balance sale consideration and to purchase the suit schedule property from the defendant herein. It is also asserted that, it is the defendant, who was not performed his several obligations under the said agreement of sale dated 31.3.2006 including his obligation to furnish encumbrance certificate pertaining to the suit schedule property for a period of 12 years as undertaken by him in Clause No.14 of the said agreement and also furnish several other documents mentioned hereafter. What are those several other documents agreed to be furnished by the defendant in pursuance of agreement of sale dated 31.3.2006 has not at all been averred by the plaintiffs in this para of their plaint. At para No.7 of their plaint, plaintiffs asserted that defendant was required to get the encumbrance certificate for a period of 12 years and also documents from City Municipal Council of Pattanagere village, namely tax demand register extract, katha certificate, tax paid receipt and RTC extracts, which are compulsorily required for the purpose of registration of the sale deed. Hence, according to plaintiffs, these documents were required to be produced by the defendant at the time of registration of the sale deed. With this oral 20 OS. No.2606 of 2007 testimony in background, now let me go through the agreement of sale Ex.P.3, Clause No.14. As per Clause No.14, the seller i.e., the defendant herein agreed that he will produce the encumbrance certificate with respect to suit schedule property for a period of 12 years backwards from the date of Ex.P.3 to enable the purchaser i.e., 2nd plaintiff for financial assistance from any banks, financial institutions etc., Further as per Clause No.12 of this document, it is recited that the defendant shall hand over as many as 12 documents in his possession to the seller at the time of registration of the sale deed. This recital in Ex.P.3 2 establishes that defendant was in possession of these 12 documents referred under Clause No.12 and he was only required to hand over the same at the time of registration of the sale deed. Though in the said clause, it is also recited that such other relevant records with respect to the schedule property, what are those other relevant records is not at all specified in the agreement. However, out of these 12 documents, cited under Clause No.12, there is reference about RTC extracts, tax paid receipts, katha extract, which are stated to be required by the plaintiff in para No.6 of his plaint. Hence, whatever, the documents sought by the plaintiffs in para No.6 of his plaint were readily available with the plaintiffs as per Clause No.12 of the agreement Ex.P.3. Further as per Clause No.14, the seller i.e., the defendant was supposed to furnish encumbrance certificate for a period of 12 years backwards from the date of Ex.P.3 so as to enable the 2nd 21 OS. No.2606 of 2007 plaintiff herein for financial assistance from any banks, financial institutions etc. Whether plaintiffs herein preferred any such assistance from any banks or financial assistance etc., is again explained by the plaintiffs themselves in para No.15 of their plaint at page No.10, wherein plaintiffs asserted that the 2nd plaintiff, who is the Managing partner of the 1st plaintiff is associated with one company by name M/S Tanglin Developments Ltd., , which is a subsidiary of M/S Global Technology Ventures Ltd., who in turn had agreed in March 2006 itself to provide funds for the purchase of the schedule property by the plaintiff herein and also stamp duty and registration charges of Rs.3,00,00,000/- to the plaintiffs. Accordingly, said M/S Global Technology Ventures Ltd., kept about Rs.27,00,00,000/- in F.D in corporation bank, M.G.Road, Bengaluru as per their letter dated 26.3.2007. Hence, according to this version of plaintiffs and also in pursuance of the said letter dated 26.3.2007, which is as per Ex.P.10. Plaintiffs were not at all having any intention to approach any financial institutions or banks for the purpose of financial aid. When such being the case, the proposed document, encumbrance certificate was also not at all necessary for the plaintiffs at that time, even otherwise, encumbrance certificate being a public document, plaintiffs were always at liberty to secure such documents and according to partnership deed Ex.P.1, their nature of business is purchasing, selling and management of immovable property, 22 OS. No.2606 of 2007 leasing of immovable property, probably it was not at all difficult for plaintiffs to secure the said document, encumbrance certificate. P.W.1 in his cross-examination, admits that he has not made any such attempts or efforts to obtain the encumbrance certificate from concerned Sub Registrar office within the stipulated period. Even otherwise, the defendant herein has produced various documents including the encumbrance certificate as per Ex.D.19 and Ex.D.20. Ex.D.19 is for a period of 27 years from 1.4.1963 to 31.8.1989 and this document came to be obtained by the defendant on 27.6.2006 and Ex.D.20 is another encumbrance certificate from 1.6.1989 to 31.3.2005 for a period of 16 years. Even this document was obtained by the defendant on 21.6.2006. Hence, within the stipulated period as per Ex.D.19 and Ex.D.20, defendant has not only secured encumbrance certificate, but also for more than 16 years i.e., for almost 45 years backwards from the date of Ex.P.3. However, there was no necessity for the plaintiffs to collect the encumbrance certificate even otherwise, since plaintiffs never intended to approach any financial institutions or banks for the purpose of financial aid. It is the specific contention of plaintiffs that one M/S Global Technology Ventures Ltd., kept Rs.27,00,00,000/- ready with an intention to give the same to the plaintiffs herein. Though plaintiffs asserted that 2nd plaintiff is associated with one M/S Tanglin Developments Ltd.,, which is subsidiary of M/S Global Technology Ventures 23 OS. No.2606 of 2007 Ltd., . Plaintiffs nor P.W.1 have produced any documents to establish his relationship or his association with such M/S Tanglin Developments Ltd., and in turn with M/S Global Technology Ventures Ltd., . However this categorical version of plaintiffs as available in para No.15 of their plaint establishes that plaintiffs were not having any amount with them to purchase the suit schedule property of their own and further they were also not having any amount towards stamp duty to get the sale deed executed . As I have already stated, the burden is on the plaintiffs to establish their readiness and willingness on part of their contract right from the date of Ex.P.3 till they obtained decree. Though it is not necessary for plaintiffs to produce or deposit balance sale consideration amount along with stamp duty expenses before the court, plaintiffs shall produce such documentary evidence, which enables this court to come to the conclusion that plaintiffs were having requisite funds at relevant point of time. Admittedly as on the date of agreement Ex.P.3, plaintiffs not paid any amount to the defendant herein and Rs.2,00,00,000/- advance sale consideration was paid by way of only post dated cheques. One cheque for Rs.25,00,000/- dated 3.4.2006 i.e., almost after lapse of 3 days from the date of Ex.P.3 and another cheque for Rs.1,75,00,000/- on 4.5.2006 i.e., after lapse of one month, one week from the date of Ex.P.3. It is probable that post dated cheques will be issued by purchasers, if they are not having sufficient amounts on the date of 24 OS. No.2606 of 2007 agreement. It is the case of the plaintiffs that they were ready and willing to perform their part of contract by paying the balance sale consideration from the beginning till today. In the cross-examination of P.W.1 at page No.19, P.W.1 deposes that he cannot say about the availability of Rs.2,00,00,000/- as on 31.3.2006. However, he admits that two cheques were post dated. According to him, said cheques were pertaining to Corporation bank, M.G.Road Branch, Bengaluru and he is having passbook at present pertaining to said bank. Inspite of the same, no such passbook has been produced by P.W.1 nor he has produced any documents to show that inspite of availability of Rs.2,00,00,000/- with them, post dated cheques were given to defendant as per his request. No seller will insist for post dated cheques and According to P.W.1, as per his cross-examination at page No.31, the reasons for issuing of 2 post dated cheques by him was defendant requested to issue the said cheques. To establish this version of P.W.1, P.W.1 not at all produced his passbook to show that he was having sufficient amount of Rs.2,00,00,000/- with him as on the date of Ex.P.3 at Corporation Bank, M.G.Road, Bengaluru. Further he is also not aware about the availability of said amount in his bank account and only deposes that he cannot say about the same at present. When such being the case, this version of P.W.1 is nothing but a stale statement. No seller will insist for such post dated cheques and it is probable that properties will be sold by the sellers to meet their other demands or 25 OS. No.2606 of 2007 requirements. When such being the case, sellers insist for advance amount to be paid immediately and not with postdated cheqeus after lapse of one or one and half months from the date of agreement of sale. Inspite of P.W.1 admitting that, he is having passbook pertaining to M.G.Road, branch, he has not produced said passbook before this court. Further he has also not produced any documents before this court to establish availability of Rs.2,00,00,000/- with him apart from remaining balance sale consideration of Rs.20,75,00,000/- as on the date of Ex.P.1. On the other hand, According to him , he requested one M/S Global Technology Ventures Ltd., not only to pay this balance sale consideration, but also bear the stamp duty expenses of Rs.3,00,00,000/-. This version establishes that plaintiffs absolutely not having any amount with them. P.W.1 himself admits that he do not know the capital amount of his firm. Further P.W.1 also do not know the exact sale consideration amount. According to him, it is Rs.23- 00 Crores or Rs.24-00 Crores. At page No.21, P.W.1 deposes that as per Ex.P.3, he was supposed to pay the balance sale consideration of Rs.20,75,00,000/- to the defendant herein within 3 months from the date of Ex.P.3 and according to him, said amount was available with him at Corporation bank, M.G.Road Branch, Bengaluru. When it was suggested to P.W.1 that, whether said amount was available in the bank account of M/S Bagamane Enterprises, P.W.1 deposes on oath that, he cannot say about the same specifically. P.W.1 also deposes 26 OS. No.2606 of 2007 that he do not know whether said amount was available either in his account or in the account of another partner. According to him , he was intending to give balance sale consideration to the defendant by way of D.D. Whereas in the plaint, it is asserted that balance sale consideration was to be paid by way of cheques. With this version of P.W.1, now let me scan through the oral testimony of plaintiff witness P.W.2, who according to plaintiffs is a Director of the M/S Global Technology Ventures Ltd., . This witness, who got examined himself as P.W.2 got marked board resolution dated 6.6.2014 as per Ex.P.12, statement of account dated 16.7.2014 issued by Corporation Bank, M.G.Road, Bengaluru as per Ex.P.13 letter issued by Corporation Bank, M.G.Road Branch, Bengaluru dated 15.7.2014 is marked as Ex.P.14. In his cross-examination it is elicited that, said M/S Global Technology Ventures Ltd., is not doing a money lending business, they have not informed to Registrar of Companies about lending the funds of Rs.27,00,00,000/- to the plaintiffs herein. According to this witness, 2nd plaintiff is one of the Director in M/S Tanglin Developments Ltd., and it is subsidiary to the M/S Global Technology Ventures Ltd., . P.W.2 also admits that he do not have any documents at present to show that 2nd plaintiff is the Director of M/S Tanglin Developments Ltd.,, which is subsidiary to the M/S Global Technology Ventures Ltd., . According to P.W.2, he has no personal knowledge about the transaction that has taken place 27 OS. No.2606 of 2007 between plaintiff and defendant herein in respect of suit schedule property. He has not seen defendant herein at any point of time. Ex.P.12 is the proceedings dated 6.6.2014. According to plaintiffs, P.W.2 kept the amount of Rs.27,00,000/- ready from March 2006 itself. Whereas, no such proceedings or resolution is forthcoming for holding the amount by M/S Global Technology Ventures Ltd., as on March 2006. This is a resolution dated 6.6.2014 i.e., the document prepared during the pendency of the suit that too after lapse of 7 years from the date of Ex.P.3. Plaintiffs themselves have produced another document dated 26.3.2007 as per Ex.P.10, which according to plaintiffs, is a letter addressed by P.W.2 on 26.3.2007 confirming to assist the plaintiffs financially to the tune of Rs.27,00,00,000/-. This letter Ex.P.10 is not at all supported by resolution. In the absence of board resolution, no sanctity can be assigned to this document Ex.P.10. Further according to P.W.1, P.W.2 agreed to extend financial help to the tune of Rs.27,00,00,000/- without charging any interest in respect of such loan amount. P.W.1 also admits that he has not opted to raise any loan from concerned bank. P.W.2himself admits in page No.5 of his cross-examination that during 2006 M/S Global Technology Ventures Ltd., had deposited Rs.27,00,00,000/- in their account and withdrawn this amount subsequently. With this version of P.W.2 in background, now let me scan through the document relied upon by the P.W.1 and P.W.2, which is as per Ex.P.11, 13 and 28 OS. No.2606 of 2007
14. According to Ex.P.11, as on 29.3.2006, the amount available with M/S Global Technology Ventures Ltd., was only Rs.11,90,00,000/-. Maturity period was for one year. Further another Rs.5,00,00,000/- plus Rs.5,00,000,000/- came to be deposited on 29.3.2006. Hence, during March 2006, according to this document, said M/S Global Technology Ventures Ltd., were only having Rs.21,90,00,000/- with them. It is not in dispute that as per Ex.P.3, plaintiffs agreed to pay the balance consideration of Rs.20,75,00,000/- on or before 30.6.2006. Whereas the remaining deposits available in this document are all dated 28.2.2007, 29.3.2007. Hence, according to this document, as on 28.2.2007, the amount was available was Rs.27,00,00,000/- and odd. Further as per Ex.P.14, which is a letter issued by Corporation Bank, M/S Global Technology Ventures Ltd., has deposited a sum of Rs.27,00,00,000/- as F.D on 15.7.2014 for the period of one year i.e., from 15.7.2014 to 15.7.2015. Whether in between March 2006 to July 2014, this amount of Rs.27,00,00,000/- was kept intact is not explained by the plaintiffs herein nor produced any documents to show that all along this Rs.27,00,00,000/- continued to be in F.D on behalf of P.W.2. Whereas, P.W.2 himself admits that they have subsequently withdrawn the F.D amounts. These documents produced and relied upon by the plaintiffs establishes that even M/S Global Technology Ventures Ltd., , who are asserting to assist plaintiffs financially kept amount of Rs.27,00,00,000/- with them only during July 2014 and as per 29 OS. No.2606 of 2007 the document Ex.P.11, whatever the amount deposited was for a period of one year. None of these documents establishes availability of requisite funds of Rs.20,75,00,000/- with plaintiffs herein apart from Rs.3,00,00,000/- towards stamp duty to purchase suit schedule property from the defendant herein. It is not in dispute that the term "Readiness" refers to financial capability of the plaintiffs to pay the balance sale consideration and get the sale deed executed by bearing stamp expenses and the term "Willingness" refers the conduct of the plaintiffs and his willingness to get the sale deed executed from the defendant. Plaintiffs are bound to establish their readiness and willingness only on the basis of documentary evidence. Mere oral testimony of plaintiffs to the effect that they were always ready and willing to perform their part of contract will not establish plaintiffs case for readiness and willingness . Plaintiffs have to produce sufficient documentary evidence like their bank passbooks, if the amount available in their bank account, F.D receipts if sale consideration amount is kept ready by way of F.Ds or loan sanction letter, if any bank is ready to grant loan in favour of the purchasers or any such document. In the case on hand, plaintiffs have relied upon Ex.P.11, 13 and 14. Admittedly none of these three documents establishes plaintiffs readiness and willingness i.e., availability of requisite funds to the tune of Rs.22,75,00,000/- apart from stamp duty as on the date of Ex.P.3 and on all subsequent dates to pay the balance sale 30 OS. No.2606 of 2007 consideration and thereby to get the sale deed executed . That apart, plaintiffs at para No.15 of their plaint categorically asserted that M/S Global Technology Ventures Ltd., had agreed in March 2006 itself to provide funds for the purchase of the suit schedule property and also stamp duty and registration charges of Rs.3,00,00,000/- to the plaintiffs and they kept about Rs.27,00,00,000/- in F.D in Corporation Bank, M.G.Road Branch. Whereas, according to plaintiffs own documents, F.D was kept in bank by P.W.2 herein only during July 2004 for a period of one year. Further as per Ex.P.11, Rs.27,00,00,000/- was not at all available with the plaintiffs even as on 29.3.2006. According to Ex.P.11 as on 29.3.2006 Rs.11,96,00,000/- was deposited for a period of one year, again on 29.3.2006 another Rs.5,00,00,000/- and on 28.3.2006 another Rs.5,00,00,000/- for a period of one year. Admittedly plaintiffs relying upon a letter issued by P.W.2 dated 26.3.2007 as per Ex.P.10. In this letter, said M/S Global Technology Ventures Ltd., asserted that they have kept about Rs.27,00,00,000/- in F.D with the Corporation Bank since March 2006. Whereas P.W.1 was under obligation to pay Rs.20,75,00,000/- to the defendants herein on or before 30.6.2006 and not 26.3.2007. According to Ex.P.11, Rs.27,00,00,000/- were not at all available with M/S Global Technology Ventures Ltd., as on 30.6.2006 including stamp duty of Rs.3,00,00,000/-. Further plaintiffs not placed any documents to show that they were ready to pay the amount 31 OS. No.2606 of 2007 during March 2006 itself. Ex.P.10 is dated 26.3.2007 i.e., after lapse of almost one year from the date of agreement of sale Ex.P.3. These documents produced and relied upon by the plaintiffs establishes that they were not at all having requisite balance sale consideration of Rs.20,75,00,000/- apart from Rs.3,00,00,000/- towards stamp duty charges available with them either on the date of Ex.P.3 or within 3 months from the date of Ex.P.3 or subsequently till today. Further according to plaintiffs as per Ex.P.1, they are having bank accounts at Chikmagalur . Even in Ex.P.1, what is the capital available with the plaintiffs is not at all specifically stated. At page No.2, it is only asserted that capital contributed by the partners is as shown in the books of accounts maintained by the firms. As I have already stated plaintiffs not at all produced said books of account before this court, which requires an adverse inference to be drawn against plaintiffs. Hon'ble Supreme Court of India in a citation reported in 1968 LAWSUIT (SC) 159 observed that "The judges are not computers. In assessing the value to be attached to oral evidence, they are bound to call into aid their experience of life and should test the evidence placed before them on the basis of probabilities.". Admittedly in Ex.P.1, what is the capital contributed by either P.W.1 or his another partner towards his firm is not at all stated nor P.W.1 produced books of accounts to establish the availability of capital. Further P.W.1 though admits that he is having bank account and also bank passbook and income tax returns, he 32 OS. No.2606 of 2007 has not produced any such documents before this court. On the other hand , according to him, he was depending on the financial assistance of one M/S Global Technology Ventures Ltd., . What is his relationship with M/S Global Technology Ventures Ltd., is not explained by the P.W.1 with sufficient documentary evidence. The document Ex.P.10 came into existence after lapse of one year from the date of Ex.P.3. That apart as per Ex.P.11, 13, and 14 neither the M/S Global Technology Ventures Ltd., nor the plaintiffs were having Rs.27,00,00,000/- with them through out. It is not the case of the plaintiffs that said amount of Rs.27,00,00,000/- was kept assigned all along since from March 2006 till today. On the other hand , the documents and the oral testimony of P.W.2 establishes that said Rs.27,00,00,000/- was later withdrawn by them. When such being the case, it is crystal clear that plaintiffs absolutely not produced any documents to show that they possessed requisite funds of Rs.20,75,00,000/- to pay the same to the defendant herein apart from necessary stamp duty. It is the case of the plaintiffs that immediately after the purchase, they were intending to start construction work over suit schedule property, somewhere during July 2006 itself. Probably for such construction, plaintiffs may require huge amount. Plaintiffs absolutely not produced any documents to establish availability of funds with them either to purchase the property or to put up any construction over the same. Ex.P.1 is silent about capital invested by P.W.1 towards 33 OS. No.2606 of 2007 the firm. P.W.1 deposes in his cross-examination that, he cannot say about the total amount invested by 1st plaintiff's firm even approximately. According to him, it is available in the books of accounts maintained by the firm. Whereas, no such books of account are produced before this court. Admittedly, as on the date of Ex.P.3, plaintiffs have not paid any amount and the amount of Rs.2,00,00,000/- paid under two cheques by way of post dated cheques. The documentary evidence relied upon by the plaintiffs discussed supra, more particularly Ex.P.10, 11, 13 and 14 establishes that amount is not available with the plaintiffs continuously, even as on the date of sale agreement, nor subsequently. The learned counsel for defendant relied upon citation of our own Hon'ble High Court of Karnataka reported in 2016(2) KLR 425 (D.B). In this citation, Hon'ble High Court of Karnataka observed that " Unless a person avers and proves that he has performed or has always being ready and willing to perform the essential terms of the contract, which are to be performed by him, he is not entitled to enforce the specific performance of contract." Further Hon'ble High Court observed that " When a person claims that, he is possessed of funds, he has to produce some documentary evidence, which proves his capacity to raise the funds or he possessed the funds." Whereas in the case on hand, plaintiffs neither produced their bank documents, passbook or books of accounts to establish availability of balance sale consideration apart from stamp duty charges nor 34 OS. No.2606 of 2007 established that P.W.2 was having sufficient balance with him through out from the date of Ex.P.3 to till today to pay the balance sale consideration to the defendant through P.W.1 herein. Above all, what is the relationship between plaintiffs herein with alleged M/S Global Technology Ventures Ltd., is again not at all explained by the plaintiffs herein. Non availability of capital amount in their partnership deed Ex.P.1 and also the version of P.W.1 that, he is having no knowledge about the capital invested by them in 1st plaintiff's firm establishes that P.W.1 is only pretending before this court that he is always ready and willing to perform his part of contract. Whereas such pretends will not helps the plaintiffs since Sec.16(c) of Specific Relief Act reads as under:-
"16 Personal bars to relief- Specific performance of a contract cannot be enforced in favour of a person-
(a) Who would not be entitled to recover compensation for its breach; or
(b) Who has become incapable of performing, or violated any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or willfully acts at variance with, or
(c) Who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract, which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant, 35 OS. No.2606 of 2007 Explanation;- For the purposes of clause (c):, (1) Where a contract involved the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court' (2) The plaintiff must aver performance of , or readiness and willingness to perform the contract according to its true construction."
It throws mandatory obligation on plaintiffs to establish their readiness and willingness on the basis of documentary evidence. Money does not exist in vacuum. Though plaintiffs are not required to deposit balance sale consideration amount in the court unless the court directs to the plaintiffs to do so, the responsibility casted on the plaintiffs to establish with sufficient documentary evidence about availability of requisite funds apart from stamp duty charges with them right from the date of Ex.P.3 till the date of decree for specific performance. Admittedly none of the documents including Ex.P.10, 11, 13, and 14 produced and relied upon by the plaintiffs establishes availability of Rs.27,00,00,000/- with alleged M/S Global Technology Ventures Ltd.,. Further plaintiffs also not produced any documents to establish their relationship with P.W.2 herein. All these circumstances establishes that plaintiffs not at all complied the provisions of Sec.16(c) of Specific Relief Act . As I have already stated mere oral 36 OS. No.2606 of 2007 testimony of plaintiff to the effect that they are always ready and willing to perform their part of contract will not make the plaintiffs case proved, unless such oral testimony of plaintiffs is supported by documentary evidence. In the absence of documentary evidence, plaintiffs plea of readiness and willingness amounts to be not proved at all. Without having any amount in the hands, plaintiffs unnecessarily block the property of the defendant herein and thereby made the defendants to frustrate before this court all along for a period of more than one decade. The oral and documentary evidence relied upon by the plaintiffs categorically establishes that plaintiffs were not having sufficient balance sale consideration with them either on the date of Ex.P.3 or subsequent to the same continuously. If M/S Global Technology Ventures Ltd., were having any intention to pay the amount to the plaintiffs herein so as to enable the plaintiffs to purchase the suit schedule property, it is probable that they would not have kept the amount in F.D for a period of one year, knowing that plaintiffs entered into an agreement as per Ex.P.3, agreeing to purchase the suit schedule property within 3 months from the date of Ex.P.3. Further according to oral testimony of P.W.2, they subsequently withdrawn the amount of Rs.27,00,00,000/- kept in F.D. When such being the case, it is crystal clear that requisite funds were not at all available with P.W.2 to lend the same to the plaintiffs herein. According to plaintiffs, said M/S Global Technology Ventures Ltd., ready to extend financial 37 OS. No.2606 of 2007 help to the tune of Rs.27,00,00,000/- without charging single rupee interest. What is the position of P.W.1 either in M/S Global Technology Ventures Ltd., or in M/S Tanglin Developments Ltd., is not at all specifically stated by the plaintiffs nor by P.W.1 . In para No.15 of their plaint, it is only asserted that, 1st plaintiff is associated with one company by name M/S Tanglin Developments Ltd.,. In what way, 1st plaintiff is associated with such company, whether such company by name M/S Tanglin Developments Ltd., is actually in existence, is not explained by the plaintiffs by producing documentary evidence. All these circumstances establishes that plaintiffs oral evidence is not at all supported by the documentary evidence and further plaintiffs without having necessary amount or requisite funds with them trying to purchase the suit schedule property, which is not at all scope of Sec.16(c) of Specific Relief Act. Accordingly, I have answered Issue No.2 in the negative.
10. Issue No.3: It is not in dispute that Ex.P.3 came to be executed on 31.3.2006 by the defendant herein in favour of 2nd plaintiff, who represented himself as proprietor for Bagamane Enterprises as per the seal available in the document Ex.P.3. In Ex.P.3, at Clause No.17, parties agreed that time framed for completion of sale transaction is 90 days from the date of Ex.P.3. Further at Clause No.16, it is also recited that the purchaser i.e., the P.W.1 herein shall promptly 38 OS. No.2606 of 2007 make payment of balance sale consideration at the time of registration of the sale deed. P.W.1, who was examined on behalf of plaintiffs admits in page No.21 of his cross- examination that, as per Ex.P.3, they shall get the sale deed executed within three months by paying the balance sale consideration of Rs.20,75,00,000/-. Inspite of such admission by P.W.1 and recital to the effect in Ex.P.3, at para No.7, plaintiffs asserted that the period of 90 days stipulated in the agreement to complete the sale transaction was not meant to be strictly adhere to in as much as the defendant was required to get the encumbrance certificate and various other documents. Whereas according to Ex.P.3, defendant was supposed to get encumbrance certificate only to enable the plaintiffs to approach bank or financial institutions. Remaining documents according to plaintiffs as per Ex.P.3 were in possession of defendant himself. Whereas plaintiffs never approached any bank or financial institutions for the purpose of loan. According to them, their associate alleged M/S Global Technology Ventures Ltd., were ready to pay the balance sale consideration and also stamp duty to get the sale deed executed . When such being the case, the encumbrance certificate was also not necessary for the plaintiffs herein. Even otherwise, P.W.1, who involved in business of purchase of immovable property , its managements etc., as per Ex.P.1, not made any efforts to obtain such encumbrance certificate from concerned Sub Registrar office. Before purchasing the 39 OS. No.2606 of 2007 property, it is probable that purchaser look for encumbrance certificate just to make himself clear about the title of the property. According to the recitals available in Ex.P.3, plaintiffs concedes that the defendant is the absolute owner in possession of suit schedule property. They have already gone through as many as 12 documents recited in Ex.P.3, which pertaining to suit schedule property, which were in possession of defendant. When such being the case, there was no obligation casted on the defendant except to come and execute the sale deed in favour of the plaintiffs or in favour of their nominees by receiving balance sale consideration of Rs.20,75,00,000/-. The vendor sells property not for his whims and fancies. The property in question i.e., the suit schedule property is situated by the side of Mysore-Bengaluru Highway, which is not at all in dispute. In Ex.P.3, apart from time stipulation of 90 days, there is also a clause stating that in case of any breach on part of plaintiffs, defendant is at liberty to forfeit one crore rupees and return remaining one crore rupees to the plaintiffs. It is the case of defendant that since plaintiffs never approached him even after lapse of 90 days, he was constrained to issue legal notice, which is produced by the plaintiffs themselves as per Ex.P.5 on 3.7.2006. On the other hand, plaintiffs are asserting that on 30.6.2006 itself, they met the defendant and mutually consented to extend the stipulated period of 90 days till completion of Ashada Masa. In this regard, they have also written a letter to the plaintiffs herein 40 OS. No.2606 of 2007 dated 30.6.2006, which is as per Ex.P.4. In this letter, it is stated that, that day morning i.e., on 30.6.2006, P.W.1 visited defendant at his shop at Avenue road and thereby defendant extended his courtesy and also stated that, there are other families, who are in possession of suit schedule property and they are required to be removed. Further it is also stated that the draft sale deed have already been sent to defendant for his approval and thereby request the defendant to obtain the encumbrance certificate for a period of 12 years. According to P.W.1, this letter has been given to defendant personally. Defendant has not at all admitting this document Ex.P.4. To show that Ex.P.4 was actually served on defendant, plaintiffs absolutely not produced any documents in this regard. With this letter, in background, now let me scan through the version of P.W.1. In his cross-examination, P.W.1 admits that he has not produced copy of draft sale deed before this court and he do not remember whether he has delivered copy of draft sale deed prepared by him to the defendant and he do not remember the exact date of draft sale deed, which was kept ready by him. He further deposes that he has to verify in the office that, whether such draft sale deed copy is available. It is not at all the case of the plaintiffs as per plaint that, they prepared the draft sale deed sent the same to the defendant herein for his reference. According to plaint averments, they visited the suit schedule property and came to know that several persons are in possession of property. Whereas P.W.1 41 OS. No.2606 of 2007 pleads his ignorance about date of his visit in respect of suit schedule property. Further it is asserted that on several occasions, they tried to meet defendant herein and in the mean time, they came to know that defendant is also making efforts to sell the suit schedule property. Whereas P.W.1 denies any such averments and deposes that defendant has not made any such efforts to sell the suit schedule property. Hence, the contention taken by the plaintiffs that, defendant was trying to sell the suit schedule property, he failed to secure certain documents etc., are all vague contentions, not at all supported by cogent evidence. Further plaintiffs asserted in their plaint that, defendant also insisted for extra amount to execute the sale deed. Whereas P.W.1 has denied any such demand by defendant herein. Though in the plaint, plaintiffs asserted that, on 30.6.2006, P.W. 1 met the defendant personally, absolutely no material is placed before this court. Whether the letter Ex.P.4 is served personally or through any of the employees of P.W.1 is also not clearly stated by P.W.1. At page 29 of his cross-examination, he was asked whether said letter Ex.P.4 was served by muddam delivery. P.W.1 answered stating that, it was not required to serve Ex.P.4 by muddam. If Ex.P.4 not served on defendant by muddam or by any other postal modes, how Ex.P.4 came to be served on defendant is not at all explained by the P.W.1. P.W.1 admits that Ex.P.4 was got typed in his office as per his instructions. He do not remember whether he has delivered copy of draft sale deed along with 42 OS. No.2606 of 2007 Ex.P.4. This version of P.W.1 makes the document Ex.P.4 a false document prepared in the office of P.W.1 just to suit the circumstances. According to panchanga of the year 2006, which was brought by learned counsel for defendant at the time of arguments on merits, Ashada Masa started only on 26.6.2006. P.W.1 entered into sale agreement with defendant herein on 31.3.2006 agreeing to get the sale deed executed within 90 days. The said 90 days ends on 29.6.2006 i.e., just 3 days subsequent to Ashada Masa. Even other wise, P.W.1 was having 87 days to get the sale deed executed from the defendants, which was much prior to Ashada Masa. To show that during this period, P.W.1 or his associate P.W.2 was having sufficient amount to pay the balance sale consideration to the defendant herein and thereby to get the sale deed executed, absolutely no material is placed before this court. In Ex.P.4, there is reference about draft sale deed. Whereas plaint is silent about the same and P.W.1 not remember whether Ex.P.4 was also enclosed with draft sale deed. P.W.1 herein is not an ordinary person. According to him, he is 1st partner of Sri.Bagamane enterprises involved in business of immovable property from decades. The terms and conditions incorporated in Ex.P3 with an intention on the parties to act upon the same. If time is not essence of the contract as contended by plaintiffs, there was no necessity for parties to incorporate default clause in Ex.P.3 at Clause No.18. Prior to claunse No.17 and 18 in Ex.P.3, a recital styled as "The parties 43 OS. No.2606 of 2007 mutually agree as follows." has been highlighted with capital letters boldly. When such being the state of affairs, the contention taken by P.W.1 that, these clauses were not actually or strictly meant to follow or adhere to appears vague. In this regard, the learned counsel for defendant relied upon citation of Hon'ble Supreme Court reported in AIR 2011 SC 3351. In this citation, Hon'ble Supreme Court observed that "In a suit for specific performance, if there is a recital that time is the essence of the contract and also consequences of non performances within stipulated time, vendor had every right to cancel contract and raise defense that time was essence of contract. In the case on hand, plaintiffs suppressed their books of accounts pertaining to partnership firm established under Ex.P.1. He has also not produced his banks statement, passbook or income tax returns to show the turn over of business under Ex.D.1. Though under Ex.P.3, P.W.1 was under obligation to clear the balance sale consideration of Rs.20,75,00,000/-, on or before 29.6.2006, admittedly no effort has been made by the plaintiffs or P.W.1 to pay the said amount. Even the document Ex.P.4 according to P.W.1 came into existence only on 30.6.2006 and not on or prior to 29.6.2006. Plaintiffs asserted in their plaint that, suit schedule property was not vacant and number of occupant were in possession of the same. Whereas, the defendant herein prefer MFA.No.2389/2010 before Hon'ble High Court of Karnataka and Hon'ble High Court of Karnataka by its order dated 44 OS. No.2606 of 2007 16.11.2010 observed that, some third parties have dumped debris on the suit schedule property and the respondent submitted before Hon'ble High Court that he may be permitted to post a security guard as well to ensure that there is no further dumping on the suit property. Such option was given to plaintiffs herein during 16th November 2010. Inspite of the same, plaintiffs not made any such attempts to appoint security guard nor at that time, it was the contention of the plaintiffs that, there exist number of occupants in the suit schedule property. It is further contention of plaintiffs that, they came to know about such occupants, when they visited the suit schedule property to measure the same. Probably, if purchaser wants to measure the property, he would like to measure the same in presence of the seller so as to enable the seller to know about any discrepancy with regard to measurement. What is the date of such measurement is again not explained by the plaintiffs. The oral testimony of P.W.2 establishes that the amount kept in F.D was later withdrawn by them and again said amount was kept in F.D only during the year July 2014. Whereas plaintiffs were supposed to pay the amount, atleast according to them after completion of Ashada Masa. Even during that period, the amount was not earmarked by P.W.2 for P.W.1. P.W.2 passed resolution not during March 2006 to assist P.W.1 herein, but it was during June 2014 as per Ex.P.12. In plaint, at para No.16, plaintiffs specifically stated that in July and August 2006, the defendant 45 OS. No.2606 of 2007 sent feelers to the plaintiffs demanding more sale consideration. Whereas P.W.1 in his cross-examination, categorically admits that defendant has not made any such demand of more consideration at any point of time. In his cross-examination at page No.31, P.W. 1 deposes that he was ready to go on with the sale transaction entered under Ex.P.3 even during the month of Ashada Masa, but according to him, the defendant was not inclined to proceed during the period of Ashada Masa. It is not the case of plaintiffs that, defendant himself approached P.W.1. According to Ex.P.4, P.W.1 approached defendant only on 30.6.2006, i.e., after lapse of 90 days from the period agreed under Ex.P.3. Ashada Masa commenced on 27.6.2006. Whereas much prior to that, P.W.1 was having all along 87 days. No effort has been made by P.W.1 to get the sale deed executed from the defendant. On the other hand, even according to his own document Ex.P.10, P.W. 2 was ready and willing since March 2006 to give Rs.20,75,00,000/- to P.W.1 apart from Rs.3,00,00,000/- towards stamp duty expenses. Whereas according to Ex.P.11, enclosure found along with Ex.P.10 as on 29.3.2006, P.W.2 was having only Rs.21,90,00,000/- and not Rs.23,75,00,000/-. Further said amount though according to Ex.P.10 kept ready for the plaintiffs, it was later withdrawn by P.W.2 and utilized for their own purpose. Issuance of postdated cheques on the date of Ex.P.3, non production of books of accounts maintained under Ex.P.1 so also the bank details of P.W.1 establishes that 46 OS. No.2606 of 2007 P.W.1 entered into contract with the defendant herein agreeing to purchase the suit schedule property without having even an advance amount available with him. The oral testimony of P.W.1 and P.W.2 establishes that balance sale consideration was not kept ready all along by either P.W.1 or his alleged lender P.W.2. All these attitudes on part of plaintiffs, more particularly P.W.1 not only disentitles him for the reliefs claimed, but also enables the defendant to exercise his rights to cancel the contract as per the recital in Ex.P.3. The property in question is not a small property. Further it is situated on prime location of Bengaluru by the side of Highway. The prices in respect of such property fluctuates every minute depending upon the buyers interest. That is the reason, the time mentioned in agreement was by way of days and not for months together or for years for its compliance. P.W.1 knowing fully well entered into contract with the defendant herein. Further according to him, he was very eager to start construction work on suit schedule property from July 2006 itself. This intention on part of P.W.1 available in his plaint and also oral testimony establishes that, time was the essence of the contract. Only for the reason that, plaintiffs later failed to arrange the balance sale consideration in time cannot turn the terms of the contract according to their convenience. Considering the same and also relying upon the principles laid down by the Hon'ble Supreme Court in the citation referred 47 OS. No.2606 of 2007 supra with regard to time was the essence of contract, I have answered this issue in the affirmative.
11. Issue No.4: As per the agreement of sale dated 31.3.2006 2nd plaintiff herein signed the agreement as proprietor of Sri.Bhagemane Enterprises. Ex.P1, came to be executed between P.W.-1 herein and his another partner B.Niranjan on 1.10.2004. P.w1 failed to establish before this court that 1st plaintiff is a registered partnership firm and he is the managing partner of 1st plaintiff firm. In the cross examination of P.W.1, it is elicited that on the date of Ex.P1, his another partner was not present and he was present at Chickmagalure. Though P.W.-1 asserted in his cross examination that he has signed Ex.P3 as a managing partner of 1st plaintiff firm, the seal available on each page of Ex.P3, establishes that P.W.1 has signed Ex.P.3 as proprietor for Sri.Bhagemane Enterprises. Under such circumstances the presence of his another partner is also necessary in this suit. Whereas 2nd plaintiff has filed this suit describing himself as Managing Partner of 1st plaintiff. In Ex.P1, P.W.1 and his other partner have declared themselves to be constituted as partnership firm. Under such circumstances suit is also bad for joinder of necessary parties i.e., other partner of P.W.-1 and Sri.Bagamane Enterprises, proprietor as per Ex.P.3 has not filed this suit and on the other hand, it is a suit filed by Managing partner of M/S Bagamane Enterprises. All these 48 OS. No.2606 of 2007 circumstances, makes the plaintiffs suit not only bad, but also P.W.1 failed to establish his locusstandi to file this suit in pursuance of the Ex.P.3 representing 1st plaintiff herein. Accordingly I have answered this issue in the affirmative.
12. Issue No.5: The provisions of the Karnataka Land Reforms Act will not prevent the purchaser from filing the suit for specific performance. Accordingly contention of defendant in this regard appears vague and baseless. Accordingly I have answered this issue in the negative.
13. Issue No. 6: The agreement of sale dated 31.3.2006 contains a specific clause that sale transaction shall be completed within 90 days form the date of Ex.P3, and plaintiffs shall pay the balance sale consideration amount on the date of registration accordingly. P.W.-1, admitted these facts in his cross examination. Whereas plaintiffs failed to establish their readiness and willingness to perform their part of contract not only within the stipulated time but subsequently through out. In a suit for specific performance apart from mandatory duty casted on plaintiffs to establish their readiness and willingness to perform their part of contract, the conduct of the plaintiffs also plays a vital role. No where in the plaint plaintiff asserted a draft sale deed was sent to defendant for his approval. Plaintiffs also not produced copy of such draft sale deed before this court. When 49 OS. No.2606 of 2007 such being the state of affairs P.W.-1, deposes that as per Ex.P4, a draft sale deed was given to defendant herein. Plaintiffs have not produced any documents for having served Ex.P4, on the defendant herein. In the cross examination of P.W.-1, at Page No.25 P.W.-1, deposes that within three months from the date of Ex.P3, he has not made any correspondence in writing with the defendant herein. This version of P.W.-1 elicited on oath and also non production of documents for having served Ex.P4, on plaintiff establishes that Ex.P4, is only a document prepared by plaintiffs at their instance. How Ex.P4 was actually served on defendant is also not explained by the P.W.-1. P.W.-1 admits that Ex.P4, came to be prepared in his office. That apart plaintiffs already failed to establish their readiness and willingness to perform their part of contract. The learned counsel for defendant relied upon citation of Hon'ble Madras High Court dated 23-6-2014 passed in Farooque Dadabhoy Vs. Dr. Usha S.Bhatta and argued that the document Ex.P.3 is self explanatory. Further plaintiff was creating records to appear as if he has been ready and willing to perform his part of the contract, even though the documents produced by him establishes that he has not approached the court with clean hands and suppressed material documents and thereby he is making attempt to get a decree for specific performance without spending any amount or without possessing requisite funds and thereby he is not entitled for the reliefs claimed. As I have 50 OS. No.2606 of 2007 already stated the relief of specific performance being equitable relief, the plaintiff who approaches the court must come to the court not only with the clean hands, but also with clean heart and brain. The continuous readiness and willingness on the part of plaintiff is a condition precedent to grant the relief of specific performance. Whereas the documents Ex.P.10, 11, 12, 13 and 14 produced and relied upon by P.W.1 establishes that absolutely, no amount was available with P.W.1 to complete the transaction either on the date of Ex.P.3 or subsequently on all relevant time. In a Metropolitan city like Bengaluru, the price of immovable property is constantly escalating. As per Clause No.16 and 17 in Ex.P.3, the parties were having clear intention to treat time as the essence of the contract. P.W.1 has not produced any such documents before this court to show that he has kept the sale consideration ready with him either on the date of Ex.P.3 or within 90 days from the date of Ex.P.3 or atleast on the date of Ex.P.4 by producing Ex.P.4,P.10, P.11, P.12 and P.13 and P.14, P.W.1 is only intending to create a situation, which is actually not in existence. This conduct on part of P.W.1 disentitles him from claiming the relief of specific performance of contract. Accordingly, I have answered issue No.6 in negative.
14. Issue No.7: At para No.17 of the plaint, plaintiffs asserts that, despite the subsisting date of agreement 51 OS. No.2606 of 2007 31.3.2006 in their favour, the defendant is making hectic attempts to enter into transactions in respect of the suit schedule property with 3rd parties with the intention of depriving the plaintiffs of their valuable rights in the suit schedule property. Admittedly plaintiffs have filed this suit on 29.3.2007. Whereas, according to Ex.P.1, the term of 90 days expires on 29.6.2006. Defendant issued Legal notice on 3.7.2006 terminating the contract as per Ex.P.5. Whereas plaintiffs got issued reply to the said notice dated 3.7.2006 only on July 22, 2006 i.e, after lapse of 20 days from the date of Ex.P.5 as per their document Ex.P.7. In the cross- examination of P.W.1 at page No.22, P.W.1 admits that he has no documents to show that Ex.P.4 was actually served on plaintiffs. He also admits at page No.33 of his cross- examination that, defendant never asked him to make higher payments stating that, then only he can sell the property in his favour. He also admits that within 3 months from the date of Ex.P.3, he has not made any correspondence in writing with defendant herein. At page No.23, P.W.1 categorically admits that defendant has not made any efforts to sell the suit schedule property in favour of anybody till today. This version of P.W.1 establishes that, the plaint averments at para No.17 of the plaint is a false averment of the plaintiffs. Under such circumstances, question of granting any equitable order of permanent injunction in favour of plaintiffs 52 OS. No.2606 of 2007 does not arise. Accordingly, I have answered Issue No.7 also in the negative.
15. Issue No.8: As per the recitals in Ex.P.3, since time is the essence of the contract, the defendant herein was having every right to cancel the contract and forfeit Rs.1,00,00,000/- out of Rs.2,00,00,000/-. P.W.1 admits in his cross-examination that, defendant, who got issued Legal notice on 3.7.2006 as per Ex.P.5 enclosed D.D for Rs.1,00,00,000/- stating that, another Rs.1,00,00,000/- has been forfeited by the defendant in accordance with the terms and conditions of the sale agreement Ex.P.3. P.W1 has produced the said D.D issued by defendant herein for Rs.1-00 crore dated 3.7.2006, it is as per Ex.P.6. The contract under Ex.P.3 came to be failed on account of breach of P.W.1. P.W.1 failed to establish his continuous readiness and willingness to perform his contract under Ex.P.3. His conduct discussed while considering the above issues establishes that, he has not approached the court with clean hands nor with clean heart. The version of P.W.1 and 2 establishes total inaction on the part of P.W.1 to get the sale deed executed in time. P.W.1 having entered into agreement with all full intention to complete the transaction within 90 days, later started asserting that time was not the essence of the contract. In view of escalation of prices in a Metropolitan city like Bengaluru and to cover the latches and breach on the part of 53 OS. No.2606 of 2007 plaintiffs, he cannot later be allowed to take the shelter either as time was not the essence of the contract or to the effect that inspite of his readiness, defendant not performed his part of contract. Plaintiffs failed to establish their readiness and willingness to perform their part of contract. As a clean seller, the defendant herein followed the terms and conditions of the contract cancelled the agreement Ex.P.3 and immediately returned the amount of Rs.1,00,00,000/- by forfeiting another Rs.1,00,00,000/-. P.W.1 deposes in his cross-examination at page No.32 that, he has not made any efforts to refund the amount of Rs.1,00,00,000/- as per Ex.P.6. Plaintiffs having failed to establish their readiness and willingness to perform their part of contract and also by failing to establish that, time was not the essence of the contract and by having admitted the execution of Ex.P.3 and its terms and conditions are also failed to claim any damages from the defendant herein. Ex.P.3 only gives their right for the purchaser to approach the court for the relief of specific performance of contract. Whereas P.W.1 herein has produced paper publication as per Ex.P.8, under which, he has cautioned the general public not to have any transactions of whatsoever nature with defendant herein in respect of suit schedule property asserting that defendant is making attempts to alienate the schedule property. Whereas P.W.1 himself admits in his cross-examination that, defendant has not made any such attempt to alienate the suit schedule 54 OS. No.2606 of 2007 property till today. When such being the case, what is the intention in issuing such a public notice in newspaper is not explained by the plaintiffs herein. By making such public notice, plaintiffs only trying to block the property of defendant for no reason and thereby to make the defendant frustrate. The silence on part of P.W.1 with regard to capital invested by him or his another partner in pursuance of the Ex.P.1 and also absence of recital with regard to capital made by P.W.1 and another in Ex.D.1 establishes that P.W.1 is troubling the sellers by creating fake partnership firm. This is the reason P.W.1 probably do not even know the actual sale consideration amount pertaining to suit schedule property. In his cross-examination, P.W.1 deposes that sale consideration amount fixed in Ex.P.3 is Rs.23,00,00,000/- or Rs.24,00,00,000/- Whereas the actual sale consideration amount is Rs.22,75,00,000/-. Further P.W.1 has not produced his income tax returns. In his cross-examination at page No.23, P.W.1 deposes that he has got about 10 to 12 sister concerns of Bagamane Enterprises and he cannot say about the capital invested on these enterprises. All these versions not only establishes that P.W.1 actually committed the breach, but also his intention was not to purchase the property, but to block the huge property in the eyes of general public and thereby make money. All these circumstances disentitles the plaintiffs for any of the reliefs as claimed from this court. Defendant as a prudent man 55 OS. No.2606 of 2007 acted in accordance with the terms and conditions of the contract entered into between the parties. Penalizing the defendant under such circumstances by way of compensation or damages does not arise. P.W.1 having cautiously entered into the agreement of sale dated 31.3.2006 is bound by the terms and conditions of the contract. Having committed the breach by himself debarred from claiming any such alternative relief. However, since defendant has already returned an amount of Rs.1,00,00,000/- under Ex.P.6, he is at liberty to encash the same by following banking procedure. Accordingly, I have answered this issue in the negative.
16. Issue No.9: The learned counsel for plaintiffs relied upon citation of Hon'ble Supreme Court reported in AIR 1979 S.C 1241, 2007 (10) SCC 231 and also AIR 2008 S.C 1568 and asserted that defendant himself failed to perform his part of obligation and thereby he is entitled for the relief of specific performance of contract. Whereas plaintiffs having failed to comply the mandatory provisions of Section.16© of Specific Relief Act, is not entitled for any such reliefs. Accordingly, the principles of Hon'ble Supreme Court relied upon by the plaintiffs in these citations is not much applicable.He also relied upon another citation reported in AIR 2009 S.C 2157 and asserted that it is not necessary to deposit entire amount of consideration before this court to show his readiness and willingness. Whereas plaintiffs failed to establish his readiness 56 OS. No.2606 of 2007 and willingness on the basis of his own documents Ex.P.10 to P.14. Accordingly, the principles laid down by Hon'ble Supreme Court in this citation is not of much help to the plaintiffs herein. Plaintiffs having failed to perform their part of contract under Ex.P.3 and also for having failed to establish the mandatory provisions of Section.16© of Specific Relief Act and in view of my findings on above issues, they are not entitled for the relief claimed. Accordingly, I proceed to pass the following:-
ORDER Suit dismissed with costs.
However, P.W.1 is at liberty to take back the Ex.P.6 and get the amount of Rs.1,00,00,000/- refunded in pursuance of Ex.P.6 in accordance with bank formalities. Defendant to cooperate with plaintiffs to revalidate Ex.P.6.
Draw decree accordingly.
{Dictated to the Judgment Writer and also dictated on line transcribed by her, corrected and then pronounced by me in open court this 21st day of April 2017} (M.LATHA KUMARI) XI ADDL.CITY CIVIL JUDGE BANGALORE CITY.57 OS. No.2606 of 2007
ANNEXUERE List of witnesses examined for plaintiff:-
PW.1 Sri. Nitin Bagamane
P.W.2: Sri. K.M.Deekshit
List of documents exhibited for plaintiff:-
Ex.P.1 Partition deed dated 1.10.2004
Ex.P.2: Certificate of Registrations of Firms
Ex.P.3: Agreement of sale dated 31.3.2006 in
respect of suit schedule property
Ex.P.4: Legal notice dated 30.6.2006
Ex.P.5: Legal notice dated 3.7.2006
Ex.P.6: D.D dated 3.7.2006
Ex.P.7: Reply notice dated 22.7.2006
Ex.P.8: Daily newspaper Deccan Herald dated
25.7.2006 containing public notice.
Ex.P.9: Rejoinder notice dated 5.8.2006
Ex.P.10: Letter dated 26.3.2007 sent by Global
Technology Ventures Ltd., to plaintiffs
Ex.P. 11: Statement of account in respect of
plaintiffs
58 OS. No.2606 of 2007
Ex.P. 12: Extract of Board resolution dated
6.6.2014 of Global Technoligies
Vednchers Ltd.,
Ex.P.13: Statement of account dated 16.7.2014
issued by Corporation Bank, MG Road,
Bengaluru
Ex.P.14: Letter issued by Corporation Bank
M.G.Road, Bengaluru dated 15.7.2014.
Ex.P..15 to 19: Photos in respect of suit schedule
property
List of witnesses examined for defendants :-
D.W.1 Sri. E.V.Subbaiah
List of documents exhibited for defendants :-
Ex.D.1: Krishi Pass book issued by the Revenue Department dated 12.9.2001 Ex.D.2 to 16 Form No.3(15 in numbers) filed under self declaration scheme before CMC, Rajarajeswari Nagar, Ex.D.17 & 18: Two RTC extracts Ex.D.19: Encumbrance certificate dated 27.6.2006 Ex.D.20 & 21: Two nil encumbrance certificates Ex.D.22 & 23: Two tax paid receipts.
XI ADDL.CITY CIVIL JUDGE, BANGALORE CITY 59 OS. No.2606 of 2007 60 OS. No.2606 of 2007