Karnataka High Court
Mrs Lilly Balappa vs Smt Shayamallamma W/O Sri. Appaianna on 30 September, 2022
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF SEPTEMBER 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A. NO.736/2008 (SP)
C/W
R.F.A. NO.1522/2010 (PAR/INJ)
R.F.A. NO.1523/2010 (PAR/INJ),
R.F.A. NO.1524/2010 (INJ),
R.F.A. NO.1525/2010 (INJ),
R.F.A. CROB.32/2008
IN R.F.A. NO.736/2008:
BETWEEN:
1. MRS. LILLY BALAPPA
W/O LATE BALAPPA
AGED 66 YEARS,
R/AT NO.108, KAMMANAHALLI MAIN ROAD
M.S. NAGAR,
BANGALORE-560 034.
2. MRS. CATHELINE N CHETTY
W/O MR. NOEL CHETTY
AGED ABOUT 38 YEARS,
R/AT DAIVIK 4-30-8,
KAMINOEGE, SETAGAYA-KV
TOKIYO 15 800 93
JAPAN
2
3. MR. DOMINIC BALAPPA
S/O LATE BALAPPA
AGED ABOUT 37 YEARS,
R/AT 1604-E-LEE-AVE, SHER WOOD
AR 72120
UNITED STATES OF AMERICA.
4. MR. ARUL BALAPPA
S/O LATE BALAPPA
AGED ABOUT 34 YEARS,
R/AT 35/61, KOOYONGE ROAD,
ARMADALE, VICTORIA 3413
AUSTRALIA
5. SRI AUGUSTINE BALAPPA
S/O LATE BALAPPA
AGED ABOUT 27 YEARS,
RESIDING AT NO.286,
WEST 1060 SOUTH,
OREM, UTAH 84058
UNITED STATES OF AMERICA
APPELLANTS NO.2 TO 5 ARE
REPRESENTED BY THEIR
POWER OF ATTORNEY HOLDER
MRS LILLY BALAPPA, W/O LATE BALAPPA
R/AT NO 108, KAMMANAHALLI MAIN ROAD,
M.S NAGAR, BANGALORE-560 034
6. MR. M. RAJAPPA
S/O MARISWAMAPPA
AGED ABOUT 47 YEARS
R/AT NO.163/A, II CROSS,
6TH MAIN, JP NAGAR, III PHASE
BANGALORE-560 078
...APPELLANTS
(BY SRI ANANDARAM.K, ADVOCATE)
3
AND:
1. SMT. SHAYAMALLAMMA
W/O SRI. APPAIANNA
AGED ABOUT 48 YEARS
R/AT NO.1, HORAMAVU MAIN ROAD,
2ND MAIN, MUNIREDDY LAYOUT,
DODDABANASWADI,
BANGALORE-560043
2. SRI APPAIANNA
FATHER'S NAME NOT KNOWN
AGED ABOUT 52 YEARS
R/AT NO.1, HORAMAVU MAIN ROAD,
2ND MAIN, MUNIREDDY LAYOUT,
DODDABANASWADI,
BANGALORE-560043
3. LT. COL. R.C. SHARMA
S/O SRI S N SHARMA
AGED ABOUT 52 YEARS
NO.16/198, TURF VIEW,
KOLKATTA-700 022
4. MRS. CHANDER KANTA SHARMA
W/O COL R C SHARMA
AGED ABOUT 47 YEARS
NO.16/198, TURF VIEW,
KOLKATTA-700 022
5. MR. ERROL PINTO
S/O LATE GEORGE ARIL PINTO
MAJOR, NO.32/A/21, TAKSHILA
OFF MAHAKALI CAVES ROAD
ANDHERI EAST,
MUMBAI-400 093
4
6. MRS. SAGHEERA SAJIDA
D/O MR. SYED ZIAUL HUQ.
AGED ABOUT 36 YEARS
R/AT NO.74, 17TH CROSS,
7TH MAIN, ITI LAYOUT,
WILLIAMS TOWN POST,
BANGALORE-33.
7. MRS. FAREEDAUNNISA
D/O MR. SYED ZIUAL HUQ
AGED ABOUT 25 YEARS
R/AT KGN KARNATAKA TIMBERS
SUBBANNA PALYA,
BANASWADI MAIN ROAD
BANGALORE-560 043
8. MRS. SUNITHA SHOWKEEN
W/O SRI SATISH SHOWKEEN
AGED ABOUT 38 YEARS
R/AT NO 13/2-2, 5TH D' MAIN,
I BLOCK KORAMANGALA,
3 STAGE, BANGALORE-560 038
9. SRI CHAKRAVARTHI SUNDRACHER SRIDHAR
S/O LATE C K SUNDARACHAR
AGED ABOUT 59 YEARS
C/O K R ANTHARAMAN,
70A, 1 FLOOR, 37TH CROSS,
9TH BLOCK, JAYANAGAR,
BANGALORE - 16
10. LT COL K C SEHGAL
S/O LATE SEHGAL
AGED ABOUT 63 YEARS
NO 358, SECTOR 29
ARUN VIHAR, NOIDA
UTTAR PRADESH
5
11. MRS. SHWETHA SINGH
D/O LT COL K C SEHGAL
AGED ABOUT 28 YEARS
02 MILANVIHAR, II ABHAJ KHAKD
III INDIRAPURAM
GHAZIBAL, UTTAR PRADESH
12. SRI SUNIL GUPTA
S/O SRI G S GUPTA
AGED ABOUT 43 YEARS
NO 26, MAGRATH ROAD
BANGALORE-560 025
13. MRS. MARY @ MEERA
D/O MR. P C KUNYECHAN
AGED ABOUT 55 YEARS
NO.1344, I MAIN,
1ST CROSS REGI NILAYAM,
YESHWANTHPUR
BANGALORE-560022
...RESPONDENTS
(BY SRI V.B.SHIVAKUMAR, ADVOCATE FOR C/R1;
SRI A.MOHANRAM, ADVOCATE FOR C/R3, R4, R7, R8,
R10 AND R11; M/S.KESVY AND CO., ADVOCATE FOR
R2; SRI A.M.VIJAY, ADVOCATE FOR R5; M/S.INDUS
LAW, FOR R7 AND R9; (SRI YESHU MISHRA, M/S.INDO
LEGAL INC, FOR R12); SRI D.S.MALIPATRI, ADVOCATE
FOR R13; SRI GOPAL V. BILALMANE, ADVOCATE FOR
R6)
THIS RFA IS FILED U/S 96 OF THE CPC AGAINST
THE JUDGEMENT AND DECREE DT. 27.3.2008 PASSED
IN O.S.NO.10709/89 ON THE FILE OF THE IV ADDL.
CITY CIVIL & SESSIONS JUDGE, MAYO HALL UNIT,
BANGALORE, DISMISSING THE SUIT FOR SPECIFIC
PERFORMANCE OF CONTRACT.
6
******
IN R.F.A. NO.1522/2010:
BETWEEN:
SMT RENU SEHGAL
W/O. COL K C SEHGAL
SINCE DEAD BY LR'S
1(a)LT. COL. K.C. SEHGAL
AGED ABOUT 65 YEARS
S/O LATE H R SEHGAL
R/O NO.358, SECTOR-29,
ARUN VIHAR, NOIDA,
UTTAR PRADESH
1(b) SMT.SHWETHA SINGH
D/O LT.COL.K.C.SEHGAL
AGED ABOUT 30 YEARS
RESIDENT OF NO.D-2, MILKAN VIHAR II
DB HOUSE, UTTAR PRADESH
REPRESENTED BY THEIR
POWER OF ATTORNEY HOLDER:
SMT. CHANDRAKANTHA SHARMA
W/O LT. COL. R.C. SHARMA
AGED ABOUT 58 YEARS,
R/O J-140, SENA VIHAR
KAMMANAHALLI MAIN ROAD,
BANGALORE-560 043.
...APPELLANTS
(BY SRI. A MOHAN RAM, ADVOCATE)
AND:
SMT. SHYAMALAMMA
7
W/O APPAYANNA
AGED ABOUT 51 YEARS
R/O DODDABANASWADI VILLAGE
KRISHNARAJAPURAM HOBLI
BANGALORE-560 043
...RESPONDENT
(BY SRI. V.B. SHIVAKUMAR, ADVOCATE)
THIS RFA IS FILED U/S 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 2.6.2010 PASSED IN
O.S.NO.15141/2006 ON THE FILE OF THE IV ADDL. CITY
CIVIL & SESSIONS JUDGE, BANGALORE, (CCH 21),
DISMISSING THE SUIT FOR PERMANENT INJUNCTION.
*****
IN R.F.A. NO.1523/2010:
BETWEEN:
SMT. SUNITHA SHOWKEEN
W/O SQDN. LDR. SATISH SHOWKEEN
NO.4529, ADOBE DRIVE, FORT WORTH
TEXAS -76123, U.S.A.
REPRESENTED BY HER
POWER OF ATTORNEY HOLDER
SMT. CHANDRAKANTHA SHARMA
W/O LT. COL. R.C. SHARMA
AGED ABOUT 58 YEARS,
R/O.J-140, SENA VIHAR,
KAMMANAHALLI MAIN ROAD,
BANGALORE-560 043.
...APPELLANT
(BY SRI. A.M. VIJAY, ADVOCATE)
8
AND:
SMT. SHYAMALAMMA
W/O. APPAYANNA
R/O DODDABANASWADI VILLAGE,
KRISHNARAJAPURAM HOBLI,
BANGALORE-560 043.
...RESPONDENT
(BY SRI. V.B. SHIVAKUMAR, ADVOCATE)
THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 02.06.2010 PASSED IN
O.S.15143/2006 ON THE FILE OF THE IV-ADDL. CITY
CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT,
BANGALORE, DISMISSING THE SUIT FOR PERMANENT
INJUNCTION.
*****
IN R.F.A. NO.1524/2010:
BETWEEN:
SMT. CHANDRAKANTHA SHARMA
W/O LT. CO. R.C.SHARMA,
AGED ABOUT 58 YEARS,
R/O J-140, SENA VIHAR,
KAMMANAHALLI MAIN ROAD,
BANGALORE-560043
...APPELLANT
(BY SRI. A.M. VIJAY AND SRI A.MOHAN RAM,
ADVOCATES)
9
AND:
SMT. SHYAMALAMMA
W/O APPAYANNA
AGED ABOUT 51 YEARS,
RESIDENT OF DODDABANASWADI VILLAGE,
KRISHNARAJAPURAM HOBLI,
BANGALORE-560 043.
...RESPONDENT
(BY SRI. V.B. SHIVAKUMAR, ADVOCATE)
THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 02.06.2010 PASSED IN
O.S.15142/2006 ON THE FILE OF THE IV-ADDL. CITY
CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT,
BANGALORE, DISMISSING THE SUIT FOR PERMANENT
INJUNCTION.
******
IN R.F.A. NO.1525/2010:
BETWEEN:
LT. COL. R.C SHARMA
S/O S N SHARMA
AGED ABOUT 61 YEARS
NO.J-140, SENA VIHAR,
KAMMANAHALLI MAIN ROAD,
BANGALORE-560043
REPRESENTED BY HIS POWER
OF ATTORNEY HOLDER:
SMT. CHANDRAKANTHA SHARMA,
W/O LT. COL. R.C SHARMA
AGED ABOUT 58 YEARS
R/O J-140, SENA VIHAR
10
KAMMANAHALLI MAIN ROAD
BANGALORE-560 043.
...APPELLANT
(BY SRI. A.M. VIJAY AND
SRI A.MOHAN RAM, ADVOCATES)
AND:
SMT. SHYAMALAMMA
W/O APPAYANNA
AGED ABOUT 51 YEARS,
RESIDENT OF DODDABANASWADI VILLAGE,
KRISHNARAJAPURAM HOBLI,
BANGALORE-560 043.
...RESPONDENT
(BY SRI. V.B. SHIVAKUMAR, ADVOCATE)
THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 02.06.2010 PASSED IN
O.S.15140/2006 ON THE FILE OF THE IV-ADDL. CITY
CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT,
BANGALORE, DISMISSING THE SUIT FOR PERMANENT
INJUNCTION.
*****
IN R.F.A.CROB. NO.32/2008:
BETWEEN:
1. LT COL R C SHARMA
S/O SRI S.N. SHARMA
AGED ABOUT 60 YEARS
R/AT J-140, SENA VIHAR
KAMMANAHALLI MAIN ROAD,
B'LORE-560 043
(REPRESENTED BY HIS POWER OF
ATTORNEY HOLDER
11
SMT. CHANDERKANTA SHARMA
W/O LT. COL.R.C.SHARMA)
2. SMT CHANDERKANTHA SHARMA
W/O LT COL R C SHARMA
AGED ABOUT 56 YEARS
RES/AT J-140, SENA VIHAR
KAMMANAHALLI MAIN ROAD
BANGALORE-560043
3. SMT FAREEDUNNISA
W/O SYED ATHAULLAH
D/O SYED ZIA UL HUQ
AGED ABOUT 38 YEARS
R/AT 158/1-1,
NARAYANA PILLAI STREET
BHARATI NAGAR, BANGALORE
4. SMT SUNITHA SHOWKEEN
W/O SQDN. LDR. SATISH SHOWKEEN
AGED ABOUT 47 YEARS
NO.4529, ADOBE DRIVE,
FORT WORTH
TEXAS-76123, U.S.A
REPRESENTED HEREIN BY THE POWER OF
ATTORNEY HOLDER
SMT. CHANDERKANTHA SHAMRA
W/O LT. COL. R.C. SHARMA)
5) RENU SEHGAL
(SINCE DEAD BY HER LRS)
5(a) LT. COL. K.C. SEHGAL
S/O LATE H.R. SEHGAL
AGED ABOUT 63 YEARS
NO.358, SECTOR-29,
ARUN VIHAR,NOIDA, UTTAR PRADESH
12
5(b) SMT.SHWETHA SINGH
D/O LT COL. K.C.SEHGAL
W/O SRI. ROHIT SINGH
AGED ABOUT 28 YEARS
R/AT D-2, MILAN VIHAR-II,
ABHAY KHAND III, INDIRAPURAM,
GHAZIABAD
UTTAR PRADESH
(CROSS OBJECTIORS 5(a) & 5(b) ARE
REPRESENTED BY THEIR
POWER OF ATTORNEY HOLDER
SMT. CHANDERKANTHA SHARMA
W/O LT.COL.R.C.SHARMA)
...CROSS OBJECTORS
(BY SRI. A MOHAN RAM AND SRI A.M.VIJAY,
ADVOCATES)
AND:
1. SRI RAJAPPA
S/O MARISWAMAPPA
AGED ABOUT 47 YEARS
R/AT NO.163/A,
2ND CROSS, 6TH MAIN
J.P.NAGAR, IIIRD PHASE
BANGALORE-560 078
2. SRI A BALAPPA
SINCE DEAD BY HIS LRS
2(a) SMT. LILLY BALAPPA
W/O LATE BALAPPA
AGED ABOUT 66 YEARS
2(b) SRI DOMINIC
S/O LATE BALAPPA, AGED ABOUT 37 YEARS
13
2(c) SRI AUGUSTINE
S/O LATE BALAPPA
AGED ABOUT 27 YEARS
2(d) SMT CAHTOLIC
D/O LATE BALAPPA
AGED ABOUT 38 YEARS
2(e) SRI ARUL
S/O LATE BALAPPA
AGED ABOUT 34 YEARS
RESPONDENTS 2(a) to 2(e) ARE
RESIDENTS OF 108,
KAMMANAHALLI MAIN ROAD
M.S.NAGAR,
BANGALORE-560005.
3. SMT SHYAMALAMMA
W/O APPAIANNA
AGED ABOUT 48 YEARS
R/O DODDABANASWADI VILLAGE,
KRISHNARAJAPURAM HOBLI,
BANGALORE EAST TALUK
4. SRI APPAIANNA
S/O MUNISWAMY REDDY
AGED ABOUT 58 YEARS
R/O DODDABANASWADI VILLAGE
KRISHNARAJAPURAM HOBLI
BANGALORE EAST TALUK-560 045
5. MR. ERROL PINTO
S/O LATE GEORGE ARIL PINTO
NO.32/A/21, TAKSHILA, MAHAKALI
CAVES ROAD
14
ANDHERI EAST
MUMBAI-400 093
6. SMT. SAGHEERA SAJIDA
D/O SYED ZIA UL HUQ
AGED ABOUT 40 YEARS
NO.74, 17TH CROSS,
7TH MAIN, ITI LAYOUT,
WILLIAMS TOWN POST,
BANGALORE-560 005
7. CHAKRAVARTHI SUNDARACHAR SRIDHAR
S/O LATE C.K SUNDARACHAR
AGED ABOUT 59 YEARS
C/O K.R. ANANTHARAMAN,
NO.70-A, 1ST FLOOR,
37TH CROSS, 9TH BLOCK,
JAYANAGAR,
BANGALORE-560 011
8. SUNIL GUPTA
AGED ABOUT 41 YEARS
S/O G S GUPTA
NO.26, MAGRATH ROAD
BANGALORE-560025
9. MRS. MARY @ MEERA
D/O P C KUNYECHAN
AGED ABOUT 55 YEARS
NO.1344, 1ST MAIN, 1ST CROSS,
REGINILAYAM, YESHWANTHPUR
BANGALORE-560 022
...RESPONDENTS
(BY SRI. S.N. PRASHANTH CHANDRA, ADVOCATE FOR R1;
R2(A-E), R7 AND R9 UNREPRESENTED;
SRI V.B.SHIVA KUMAR, ADVOCATE FOR R3;
SRI SHANMUKAPPA, ADVOCATE FOR R4;
15
VIDE ORDER DATED 19.07.2010, APPEAL AGAINST R6
DISMISSED; SRI ABHINAV, ADVOCATE FOR R8)
THIS RFA.CROB. IS FILED U/O XLI RULE 22 OF
CPC AGAINST FINDINGS ON ADDL. ISSUE NO.1 IN THE
JUDGEMENT AND DECREE DATED 27.03.2008 PASSED
IN O.S.NO.10709/1989 ON THE FILE OF THE IV
ADDL.CITY CIVIL AND SESSIONS JUDGE, MAYO HALL
UNIT, BANGALORE, NEGATIVELY ANSWERING THE
ADDL.ISSUE NO.1 AND THE CROSS OBJECTORS HEREIN
PRAYS TO SET ASIDE THE FINDINGS ON ADDL. ISSUE
NO.1.
******
THESE APPEALS AND RFA CROB. HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT ON 22.08.2022,
COMING ON FOR 'PRONOUNCEMENT OF JUDGMENT'
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
1. The parties are referred to as per their original rankings before the Trial Court.
2. All these appeals are by the unsuccessful plaintiffs challenging the validity of the judgments and decrees as depicted in the table below:
16O.S.No. Name of the plaintiffs RFA No. 10709/1989 Sri M. Rajappa and 619/1996 another 736/2008 15141/2006 Smt. Renu Sehgal dead 1522/2010 by LRs., Lt. Col. K.C. Sehgal and another 15143/2010 Smt. Sunitha Showkeen 1523/2010 15140/2006 Lt. Col. R.C. Sharma 1525/2010 15142/2006 Smt. Chandrakantha 1524/2010 Sharma Cross Objection Additional RFA No No defendants 32/2008 Lt. Col. R.C. 32/2008 Sharma
3. Among the above, RFA No.736/2008 is filed by the plaintiffs (hereinafter referred to as 'intended purchasers' for short) in O.S.No.10709/1989 against Smt. Shyamalamma and Appaianna (herein after referred to as 'vendors' for short).
174. One of the purchaser of the individual site has also filed RFA CROB No.32/2008 on the following grounds and prayer:
GROUNDS The learned Trial Judge ought to have referred the General Power-of Attorney, dated 12.04.1989, to the opinion of a handwriting expert, as prayed for in IA No.27 and has grossly erred in rejecting the said application.
Even after holding that the Trial Court itself can compare the disputed signatures of the Respondent No.3 on Exhibit 'D 126 with her admitted signatures on other documents, in exercise of the powers under Section 73 of the Indian Evidence Act, the learned Trial Judge has gravely erred in ignoring to give any finding at all in the impugned Judgment, dated 27.03.2008.
The learned Trial Judge has failed to appreciate the clear admission made by DW-1 that her signatures on Exhibit 'D 126' 18 and those in her Written Statement are similar.
The finding of the learned Trial Judge while answering Additional Issue No.1 that the Respondents 1 & 2/Plaintiffs themselves got the General Power-of-Attorney (Exhibit 'D 126') from the 3rd Respondent/1st Defendant to the name of A. Felix, that A. Felix is a stranger to the 3rd Respondent/1st Defendant and further the Respondents 1 & 2 themselves got the sale deeds executed in favour of these Cross- Objectors, is erroneous and has been arrived at without there being any basis whatsoever.
The learned Trial Judge has grossly erred in not giving any plausible reasoning or finding whatsoever as to the validity of the registered sale deeds executed by the 3rd Respondent/1st Defendant (through her Power of-Attorney holder) in favour of these Cross-Objectors, although this Hon'ble Court had specifically directed the Trial Court to do so in RFA No.619/1996.19
The learned Trial Judge has grossly erred in holding that the Respondents 1 & 2/Plaintiffs and these Cross-Objectors are hand in glove, without there being any basis or any material whatsoever. Such a finding, it is respectfully submitted, is wrong, baseless and totally extraneous to the facts of the case.
The Cross-Objectors have placed ample materials before the learned Trial Judge to hold that the General Power-of Attorney, dated 12.04.1989, was validly executed by the 3rd Respondent/1st Defendant and that the registered sale deeds executed in respect of the different house sites are valid and binding on the 3rd Respondent/1st Defendant.
The learned Trial Judge ought to have appreciated that although the execution of the General Power-of-Attorney, dated 12.04.1989, and the subsequent execution of the registered sale deeds in favour of the Cross Objectors during the year 1989 was 20 well within the knowledge of the 3rd Respondent/1st Defendant, she had never challenged the validity or otherwise of those documents before any Court of law by initiating civil or criminal proceedings.
The learned Trial Judge ought to have appreciated the sworn testimony of the 3rd Respondent/10th Defendant in the proper perspective, which discloses that she is a worldly wise woman and that such a person would not have executed the General Power-of-Attorney (Exhibit 'D-126) in the manner contended by her.
The learned Trial Judge ought to have drawn an inference against the 3rd Respondent/1st Defendant as apparently no steps were taken by her questioning the validity of the above documents.
The learned Trial Judge ought to have appreciated that it not necessary for the Respondents 1 & 2/Plaintiffs to amend the Plaint and seek any relief against the Cross- Objectors, more-so in the light of the 21 observations made by this Hon'ble Court in the Order of remand in RFA No.619/1996 that required of the learned Trial Judge to examine the validity of the registered sale deeds in favour of the Cross Objectors.
The learned Trial Judge ought to have appreciated that the stand taken by the 3rd Respondent/1st Defendant that A. Felix was a fictitious person stood belied when the Cross-Objectors have furnished positive proof in the form of Exhibit 'D-128", the extract of burial issued by the Holy Ghost Church, where his burial service was held and also his death certificate( Ex.D-127) The learned Trial Judge ought to have appreciated that by the mere fact that the 3rd Respondent/1st Defendant had got issued the legal notice (at Exhibit 'P-3') to A. Felix, besides the Plaintiffs, would go a long way in disproving the stand taken by her that A. Felix is a fictitious person.
The learned Trial Judge ought to have held from the material available on record that 22 the stand taken by the 3rd Respondent/1st Defendant that she is estranged from her husband (the Respondent No.4) is false and a concocted one.
For all the aforesaid reasons, there was ample material for the learned Trial Judge to hold that the Cross Objectors were bonafide purchasers for value without notice of the Agreement of Sale, dated 04.11.1988 and further the registered sale deeds executed in their favour are valid.
No other Appeal, Petition or Cross Objections are filed by the Cross Objectors questioning the impugned Judgment & Decree either before this Hon'ble Court or any other Court of law.
The Cross Objectors had notice of the filing of RFA No.736/2008 when they were served with the copy of the Memorandum of Appeal on 12.06.2008 and hence the above Cross Objections have been filed within the period of limitation.
23The subject matter of the Suit in OS No.10709/1989 has been valued at Rs.5,50,000/- and a Court fee of Rs.55,000/ has been paid on the Plaint. A similar Court fee of Rs.55,000/ is herewith paid in accordance with Section 49 of the Karnataka Court Fees & Suits Valuation Act, 1958.
PRAYER WHEREFORE, the Cross Objectors pray that this Hon'ble Court may be pleased to:
a. Call for records in OS NO.10709/1989 on the file of the learned IV Addl. City Civil Judge, Mayo Hall, Bangalore:
b. Set aside the findings of the learned IV Addl. City Civil Judge, Mayo Hall, Bangalore, in OS No.10709/1989, in the Judgment & Decree, dated 27.03.2008, on Additional Issue No.1 and thereby hold that the Cross Objectors are bonafide purchasers for value of the house sites, without noticing the Agreement of Sale, dated 04.11.1988 and to further hold that the registered sale deeds executed in their favour are valid and binding on the Respondent NO.3/Defendant No.1;24
C. Grant such other relief that this Hon'ble Court may deem fit, in the interest of justice and equity."
5. Shorn of unnecessary details, the pleadings in the Trial Court reveal that vendors are the owners of the landed property bearing Sy.Nos.102/4 and 102/3, measuring 2 acres 20 guntas of Horamavu village, Krishnarajapuram Hobli, Bengaluru South Taluk, more fully described in the schedule to the plaint (herein after referred to as 'suit schedule properties' for short).
Vendors agreed to sell the same in favour of the intended purchasers, who entered into an agreement on 04.11.1988. Sale consideration was fixed in a sum of Rs.2,20,000/- per acre. Time to conclude the sale consideration was fixed as seven months. It is contended in the plaint that intended purchasers were put in possession of the properties as part performance of the contract by receiving a sum of Rs.2,00,000/- as 25 advance amount. It further reveals that in all, plaintiff received the sale consideration in a sum of Rs.3,75,000/- out of total consideration of Rs.5,50,000/-
which reads as under;
"a) Rs.2,00,000/- paid at the time of the Agreement of Sale dated 4-11-88;
b) Rs.50,000/- on 30-11-88;
c) Rs.10,000/- on 24-12-88;
d) Rs.15,000/- on 10-1-89;
e) Rs.35,000/- on 31-1-89;
f) Rs.50,000/-(2 cheques for Rs.25,000/- each) on 18-2-89;
g) Rs. 10,000/- on 29-3-89;
h) Rs. 5,000/- under voucher on 13-4-89."
6. When the matter stood thus, a legal notice was issued by the vendors on 24.04.1989. The notice was addressed to the intended purchasers and one Mr. A. Felix. The contents of the notice reveal that vendors were not interested in continuing with the sale 26 agreement, as intended purchasers did not perform their portion of the contract.
7. The relevant portion of the legal notice in this regard is culled out hereunder for ready reference:
"Under instructions from my clients Smt. Shyamalamma, wife of Appayyanna, major, residing at Doddabansaswadi. Bangalore-43, I cause this notice to you as follows:
My client is the owner in possession and enjoyment of the land bearing Survey No.102/4, and 102/3 situated at Horamavu Village, K.R.Puram Hobli, Bangalore South Taluk measuring 2acre and 20 guntas. The same is an agricultural land and the same was purchased for valuable consideration and got the sale deed in her favour on 28-9-1987.
That the first and second of you have approached my client in the matter of purchasing the above said properties at the rate of Rs.2,00,000/- per acre. My client at the first instance was not inclined to sell the property but on the persuasion of one Thayanna and Anjanappa, of Banaswadi, my client agreed to alienate the entire property by taking sale deed and you have got an 27 agreement typed and brought the same and get the signature of my client on 13th July 1988 and the said agreement was in the name of the first of you and in the name of another person namely Raja Reddy. Subsequently the said agreement was came to be cancelled at the instance of first and second of you. Later, you got another re-agreement from my client on 4th November 1989 in the name of first and second of you, though both of you orally agreed to get the sale transaction completed within the period of three months by paying the entire sale consideration, but you did not acted upon and you got postponing the same by saying one or the other pretext and by getting the signatures of my client on number of blank papers.
My client instructed me to state that there is no bonafide on your part and your transactions seems to be somewhat flimsy and my client is not interested in keeping your contract further, hence the agreements dated 4-11-1988 stands cancelled for non-performance of the your part of contract as agreed between your said and my client. Hence returns all the paper which are in your custody to my client forthwith which bears the signature of my client.
28My client further instructs me to state that when she is admitted in the Hospital at Srinivasa Nursing home for Stomach paid on 13th April 1989, the first and second of you came to the Hospital in the matter as signing for a paper, my client did not adhered to the said demand and thereupon you made my client to make believe your words to complete the sale transaction and got signature to a stamped paper during the absence of my client's husband's presence in the hospital. Immediately when my clients' husband came to the Hospital, he was informed about the signature and immediately my client's husband approached the first and second of you in the matter of getting the signature and give the copy of the same. But the second and first of you want on postponing the issue of the copy of the stamped paper where the signature of my client was obtained. Subsequently, when my client's husband got the doubt upon the postponing of giving of the copy of the document and my client reliably learnt that the same has been converted as a power of Attorney in favour of third of you though you are a stranger to my client. Even if the same has been converted as document either in favour of third of you or in favour of anybody, the same does not binds upon my client and it has no validity in the 29 eyes of law as the same has done behind the back of my client.
My client further instructs as that how can the said blank paper converted into a General Power of Attorney and without the presence of my client how could it be signed by a Notary. Hence my client has no faith upon all of you in view of the above stated facts and circumstances and the transaction between yourself and my client has been got cancelled by my client and any document which is holding by either of you, shall be returned forthwith. The advance amount received by my client to the sum of Rs.2,00,000/-in hereby forfeited for not completing the sale transaction within the period of three months from the date of the first agreement. You are all hereby called upon not to act upon the strength of any document in respect of schedule property and if you do so, you will be doing so without any right, title or interest and for which my client is no held responsible.
My client cancel all the agreements and got prepared any power of attorneys either in favour of all of you or acting by a third party on the strength of the alleged document and resiles from the contract.
30Wherefore, I am instructed by my client to call upon all of you to return the documents, blank signed papers which bears signatures of my client or whichever the papers/documents got an by you in respect of the schedule property within 8 days form date of receipt of this notice, and all transactions in respected the schedule property stands cancelled by my client and also my client forfeits the advance amount received in view of non performance of contract by first and second of you. You are already hereby ceased to transacted any thing in respect to schedule property, on the strength of the alleged papers. Despite this notice, if you act on the strength of any document you all will be doing so at your costs and risks, besides being liable for costs and consequent to my client which will be incurred in the matter of moving the competent courts of both civil and criminal against all of you., which please note.
Notice charges of Rs.500/- is payable by you to my client.
Schedule: The properties bearing Sy.No.102/2 and 102/4 situated at Hormavau, K.R. Puram Hobli, Bangalore South Taluk measuring 2 acres 20 guntas.
31Note: notice are already sent to the concerned Sub-Registrar and village Account for necessary action in the matter."
8. Intended purchasers and Mr. A. Felix replied to the notice dated 24.04.1989 (Ex.P.3). In reply, the payments made by the intended purchasers as referred to supra was mentioned and contended that a sum of Rs.3,75,000/- has already paid out of Rs.5,50,000/-, which shows that intended purchasers were always ready and willing to perform their part of contract and they had time of seven months to conclude the contract of sale. They also replied that another sum of Rs.1,00,000/- was paid by drawing a cheque in favour of the husband of the first vendor and the same did not encash and there was a stop payment issued by the intended purchasers in view of the legal notice dated 24.04.1989.
9. It is also contended that the second vendor is signatory to the power of attorney in favour of Mr. A. 32 Felix and therefore, the intended purchasers demanded for conclusion of the sale transaction.
10. On receipt of the reply (Ex.P.4), the vendors issued a rejoinder on 20.05.1989 (Ex.P.5). In Ex.P.5 the contents of reply notice vide Ex.P.4 were refuted and the intended purchasers maintained that agreement of sale stands rescinded.
11. However, on 28.08.1989 a notice (Ex.P.7) was caused to the vendors by intended purchasers along with a bankers cheque in a sum of Rs.1,77,000/- dated 17.07.1989 (Ex.P.6). In the said notice, reiterating the contents of the earlier reply notice, it was contended that after Ex.P.5, there was a meeting and the vendors agreed to conclude the sale transaction by receiving a sum of Rs.1,77,000/- (Rs.1,75,000/- towards balance consideration, Rs.2,000/- expenditure for serving legal notice etc). Another notice said to have been issued by the intended purchasers on 17.09.1989 with the copy of 33 the notice dated 28.08.1989 which was duly replied vide Ex.P.8 by the vendors. So also on 11.09.1989 (Ex.P.9), second vendor got issued a notice to the Advocate of the intended purchasers in reply to the notice dated 28.08.1989 (Ex.P.9).
12. In view of exchange of notices left with no alternative, intended purchasers filed the aforesaid suit on 04.12.1989 seeking for specific enforcement of the suit agreement.
13. On receipt of suit summons, first vendor and second vendor filed separate written statements denying the plaint averments except admitting the suit agreement. While the first vendor stated that amounts paid to the second vendor is not towards the agreement and the second vendor being the husband of the first vendor is addicted to bad vices and therefore, payment of amount to the second vendor is not proper tender pertains to the suit agreement and sought for dismissal 34 of the suit. So also second vendor in his written statement denied the plaint averments in toto.
14. On the basis of the pleadings, Trial Court framed necessary issues and dismissed the suit of the plaintiffs by judgment dated 27.03.2008.
15. Being aggrieved by the same, the plaintiffs approached this Court in RFA No.619/1999. In the interregnum, based on the power of attorney said to have been executed by the first vendor in favour of Sri A. Felix, few sites were purchased by the prospective purchasers. They were not impleaded in the suit and therefore taking note of the same, Division Bench of this Court in RFA No.619/1999 passed the following order:
"This appeal is directed against the Judgment and Decree dt 27-8-96 in O.S. No. 10709/ 89 passed by the IV Addl. City Civil Judge, Mayo Hall Bangalore partly decreeing the suit of plaintiff and directing the defendents to pay to the plaintiff a sum of Rs.3,75,000/- with interest.35
2. During the pendency of this appeal, we allowed impleading applications filed by respondents 3 to 8. In view of this development, an opportunity is required to be given to all the parties concerned with regard to the validity of sale deeds in favour of impleading applicants and its binding nature on the parties. Keeping open all questions between the parties the matter is required to be remanded to the Trial Court for fresh disposal. In view of the fact that more than 1½ decade is spent on this litigation, it is necessary to issue direction to the Trial Court the matter within a time frame.
For the reasons stated above the following:
(i) Appeal is allowed.
(ii) The impugned Judgment and Decree of the Trial Court is here by set-aside.
(iii) The matter is remanded to the Trial Court for fresh disposal in accordance with law after providing an opportunity to both the parties.
Within a time frame of six months from the date of receipt of copy of this Judgment.
(iv) The parties is directed to appear before the Trial Court on 28.09.2007 at 11.00 AM.
36(v) Office is directed to return the records to the Trial Court forthwith.
(vi) Both the parties are directed to maintain status-quo till the disposal of the suit.
(vii) Ordered accordingly"
16. After remand of the matter purchasers were impleaded in the suit and the suit was adjudicated afresh. The purchasers of individual sites filed separate written statement stating that first vendor being the owner executed a power of attorney in favour of Mr.A. Felix, who formed a residential layout in the suit property and sold the individual sites to them.
Therefore, their interest is to be protected. Practically the same stand is taken by almost all the purchasers.
17. Post remand, first vendor also filed additional written statement denying the power of attorney said to have been executed in favour of Mr. A. Felix. First vendor also specifically pleaded that Mr. A. Felix is a stranger to the first vendor and a fictitious person, and 37 his action would not bind her. She also stated that the said power of attorney is a bogus document and she does not know the person by name Lt.Col. R.C. Sharma for any other matter. She further denied that, she has not appeared before the notary public and has not executed any power of attorney in favour of Mr. A. Felix.
18. Thereafter, the Trial Court raised following issues and additional issue:
ISSUES
1) Do plaintiffs prove that first defendant agreed to sell the suit lands for Rs.2,20,000/- per acre on 4/11/88 and delivered the possession of said lands?
2) Do they further show that first defendant has totally received Rs.3,75,000/- towards consideration as averred in para 4 of the plaint?
3) Do they show that they have been ever ready and willing to perform their part of contract?38
4) Do they further show that first defendant committed breach of contract?
5) Does first defendant show that plaintiffs have committed breach of contract and as such she cancelled the contract and Rs.2,00,000/- received by her became liable to be forfeited as alleged in para 7 of the written statement?
6) Whether plaintiffs are entitled for relief of specific performance and to get the sale deed from first defendant?
7) To what decree or order?"
ADDITIONAL ISSUES "1. Whether the additional defendants prove that they are bona-fide purchases without noticing the sale agreement dt: 4.11.1988?
2. Whether the 1st defendant will be put to much hardship in case Specific Performance of contract Is ordered?"39
19. Post remand, parties were given opportunity to lead further evidence. On behalf of intended purchasers, first plaintiff lead additional evidence which reads as under:
"M. Rajappa, aged about 54 yeas. S/o Mariswamappa residing at NO.163/A, II Cross, 6th Main, J.P.Nagar, III Phase, Bangalore 78 do hereby solemnly affirm and state on oath as follows:
I am the appellant No.1 herein and I know the facts of the case and deposing hereto for self and also on behalf of the LR's of the appellants herein.
I submit that I have filed the above appeal against the impugned Judgement and award passed by the Trial Court and the appeal filed by us may kindly be read as part and parcel of this affidavit to avoid repetition of the facts.
I submit that at the time of leading of evidence by appellant No.2 he could have produced the said documents mentioned in the application and 40 between he could not produce the same till the passing of the judgement and decree and we have preferred the above appeal; and during the pendency of the above appeal appellant No.2 had expired and when I am searching for other documents I found these documents and immediately I contacted my counsel and he instructed me to file this application. I submit that that document is very essential to clinch the issues involved in the above case to prove my appeal. I submit that those documents are subsequent document and the same could not be produced by appellant No.2 and there is no deliberate or negligence on his part but for the bonafide reasons stated supra, If this application is allowed no prejudice would be caused to the other side and on the contrary 1 will suffer injustice and hardship.
WHEREFORE, I pray that this Hon'ble Court be pleased to allow the annexed application as prayed for in the interest of justice and equity."41
20. P.W.1 was cross-examined on behalf of the vendors and also on behalf of the individual site purchasers. PW-1 has admitted in his evidence that first plaintiff is his relative and he was introduced to second defendant Appayyanna by Rajareddy. He has admitted that on 13.7.1988 there was separate agreement between Raja Reddy and DW-1 Shamalamma. He has further admitted that the said agreement and to that first plaintiff Rajappa was also a party. He has further admitted that plaintiffs are running a business on Commercial Street jointly and payments shown under Ex.P-1 were made not only to DW1 but also payments were received by second defendant since first defendant was carrying pregnancy of five months. He has further admitted that DW1 is the absolute owner of the suit property and the defendant No.3 has no interest in the said property. He has further stated that the defendants are the owners of the suit property and he has seen the documents in support 42 of their joint ownership. He has submitted that the original document is in his possession. He has stated that he will produce the same. He has denied the suggestion that second defendant is nothing to do with Ex.P1 and that in order to harass him a false case has been impleaded. He has further admitted that a cheque of Rs.1,00,000/- was issued in the name of the defendant. For the oral request made to the Banker to stop payment, there is no document to show that second defendant had received cheque of Rs.1,00,000/-.
He has stated that he has received endorsements in respect of payments made. He has denied the suggestion that he is deposing falsely that he had issued cheque for Rs.1,00,000/- to second defendant.
21. In the cross-examination of P.W.1 by the counsel for the first defendant P.W.1 has stated first plaintiff is the younger brother of my sister's husband.
When the sale Agreement was executed in the year 43 1988, the first defendant was doing the business of sale of lands. He has further admitted that first plaintiff and himself were doing the Real-Estate Business work. One Rajareddy whose name is mentioned in the first agreement is a Broker. The land-lords who are defendants 1 & 2 had sought for further amt. Rajareddy told me that he had no amount and the said land may be given to anyone else. He has further admitted that the suit Agreement is in-between the first defendant., himself & the first plaintiff. He has further admitted that that in the sale agreement Ex.P.1, the signature of the second defendant is not there, but it is there in the witness column as an Executor. He has further admitted that prior to the sale agreement at Ex.P.1, there was an Agreement to sell, in between Rajareddy & the first defendant Shamalamma. At the time of the sale agreement, Rajareddy came to me & requested to purchase the suit schedule property. He has further admitted that, he has paid a cheque for Rs.70,000/- to 44 first defendant. He has further admitted that he has also paid Rs.30.000/- by way of cash for the suit transaction.
He has utilized the income for his business on some other lands. He does not have any other documents except Exs.P.1 & Ex.P.2 to show that he has paid Rs.2,00,000 to the first defendant. Regarding the payment of balance of Rs.1,75,000/- made by him, he has no other documents except Exs.P.1 & P.2. He has not addressed any letter to first defendant stating that he has paid the amount to the second defendant but he has orally intimated to first defendant. Ex.P.1(a) to P.1(e) are in his hand writing. He has taken the signature of the first defendant on Ex.P.1 as per Ex.P.1(a).
22. He also admits that the suit schedule property has not been converted so far and that he had verified the documents of first defendant before he subscribe his signature to Ex.P.1 and he was convinced 45 about the title of the first defendant to the suit property.
He further admits that as per Ex.P.1 balance consideration amount was to be paid to the 1"
defendant. He further admits that he had sent Demand Draft vide Ex.P.6 along with a notice at Ex.P.7. He further admits that 1" defendant had sent a notice intimating that the sale agreement was cancelled before he could send Ex.P.6. It is further admitted by him that in the agreement there is no mention that no where it is mentioned that balance consideration amount can be paid by way of instalments and he had agreed for the payment of balance consideration in one lump sum. He has answered that cheque Ex.P-2 was issued in the name of the 2nd defendant, which is signed by him. He admits that to get the income tax clearance certificate they had to furnish the sale deed. He denied the suggestion that he will not be put to any injury if the present suit is dismissed.46
23. Post remand D.W.1 filed further affidavit contended that she is the owner of the suit property and she has possessed the suit property for her family necessities. She further stated that appreciating the case of the parties, the Trial Court at the first instance passed a decree and ordered to refund, against which the plaintiffs preferred RFA No.619/1996 which was allowed and the matter was remanded to the Trial Court.
24. She further stated that the plaintiffs and second defendant coerced and compelled to execute the sale agreement. She further deposed that she is able to sign in English language, but she does not know English language, so also she is not well versed in reading and writing of English language.
25. She was hospitalized on 13.04.1989 in Srinivasa Nursing home and she was under treatment with regard to a tumour and pregnancy related problems. She came to know that the signatures 47 obtained by plaintiffs on blank papers have been converted into a power of attorney. Immediately, after her discharge from the hospital, she contacted her Advocate and got issued the legal notice on 24.04.1989, wherein, she made a specific allegation that plaintiffs and second defendant have colluded and used the name of Mr. A. Felix for the purpose of committing fraud and sought for dismissal of the suit.
26. Thereafter, in this regard, she had specifically contended that she has filed O.S.No.4248/1997 wherein the suit came to be decreed by holding that she is in possession of the suit property and the said injunction order is in force. She specifically deposed that she is not acquainted with Mr. A. Felix and also pleaded that she has to her hardship in enforcing the suit agreement and sought for dismissal of the suit.
27. In her cross-examination it is elicited that she has not filed any suit against her husband claiming 48 maintenance. She denied that her husband is a water supplier. She admits that she has not produced any documents to show that herself and her husband are living separately since 18 years. She denied the suggestion that her husband's name is found in the Voters' List of her house. She denied that she is owning 3 acres 30 guntas of land in Banasavadi village. She also denied that number of houses are there in the name of her husband. She denied that she has sold 1 acres of land to additional defendants through her power of attorney Mr. A. Felix. She denied that out of the sale consideration of Rs.3,75,000/- she has constructed a house. She has answered that her mother tongue is Telugu, but she only knows how to sign in English and she has studied upto 3rd standard.
28. She further admits that she was living with her brother by name Gopalareddy who died about 3 years earlier from the date of cross-examination. She 49 admits that she did not file any police complaint against her husband for his habits and torture. She also admits with regard to the alleged collusion of her husband with plaintiffs in taking her signatures on the blank papers.
She has answered that she does not know the person by name Mr. A. Felix and he is a fictitious person. She admits that she has not taken any action against the Sub Registrar for having registered the sale deeds by Mr. A. Felix acting as her power of attorney. She has stated that she has grown crops in the suit property.
She admits that she has given application to Horamavu Group Panchayath for cancelling the khatha made in favour of additional defendants. But, no reply is received. She admits that she came to know execution of sale deed by Mr. A. Felix in favour of additional defendants in the year 1997 and she has not filed any separate suit against Mr. A. Felix seeking cancellatioin of power of attorney nor lodged police complaint against Mr. A. Felix. She denied that she is not in possession of 50 suit property. She admits that she has not issued notice disclaiming the contents of Ex.P.3. She denied that her husband actively participated in the marriage of her first daughter. She admits that total extent of land in Sy.No.102/3 and 104/4 is 2 acres 31 guntas and sale agreement is only in respect of 2 acres 20 guntas.
29. Second vendor was also examined earlier to the remand of suit and on behalf of defendants, one Dayanna was also examined as D.W.3. Post remand, one Chandrakantha Sharma and Fareedunnisa were examined as D.Ws.4 and 5.
30. On cumulative consideration of the oral and documentary evidence on record, the learned Trial Judge passed a judgment in O.S.No.10709/1989 dismissing the suit of the plaintiffs in toto. So also the suits filed by the purchaser of individual sites were dismissed. Being aggrieved by the judgment and decree passed in the 51 aforesaid suits, the plaintiffs are before this Court in these appeals.
31. In RFA No.736/2008, the appellants.
Plaintiffs in O.S.No.10709/1989 have raised following grounds:
The Court below committed a serious error in not decreeing the suit of the plaintiffs as prayed for and in not granting relief of specific performance of the contract and in dismissing the said relief. The Court below has not properly appreciated the pleadings in the suit, the oral and documentary evidences produced on record and thus the entire judgment and decree is vitiated and is liable to be set aside.
The Court below erred in dismissing the suit. There were eight issues framed by the Court. While the Court upheld the case of the appellants on issues No. 1 and 2, it grossly erred in arriving at erroneous conclusion on issues No. 3, 4 and 5 and additional issue No. 2. Having decided issue 52 nos, it ought to have similarly held other issues in favour of the appellant.
Issue No.3 is whether the plaintiffs were ready and willing to perform their part of contract. The Court below failed to appreciate the facts in the proper prospective and arrived at erroneous conclusion. The Court below was wrongly influenced by the fact that the plaintiffs/appellants have not performed their part of the contract, it has not properly appreciated the various documents and arguments canvassed by the appellants to support their contention.
The Court below failed to note that the date of the transaction is 4/11/1988 and that the cancellation by the 1" respondent was in April 1989, ie much before the lapse of seven months time stipulated in sale agreement for performance of the contract and execution of the sale deed, the court also failed to note that the possession of the schedule property was with the appellants, that, the plaintiffs had paid in all Rs 53 3,75,000/ (Rupees Three Lakhs Seventy Five Thousand Only) as against the total sum of Rs 5,50,000/- (Rupees Five Lakhs Fifty Thousand Only) to the first respondent by Marc/April 1989. In the light of the above the Court ought to have held that the plaintiffs are ready and willing to perform their part of the contract.
The Court below failed to analyze issue no. 4 as to whether the first respondent committed breach of contract, in the proper prospective. The Court appears to have misdirected itself to hold that it is the plaintiffs who had set up one Mr. Felix and got executed the General Power of Attorney and through him sold away portion of the schedule property. There was no documentary proof or otherwise available to observe so Admittedly, the 1 respondent was a signatory to the said General Power of Attorney and she was the person responsible for executing the sale deed.
Other than feigning ignorance even after admitting the signatures, the first respondent had not taken any action to 54 prevent the alleged misuse of appellants signatures by the said Felix or the plaintiffs.
The agreement stipulates that the time agreed between the parties is seven months from 4/11/1988; that the respondent shall hand over physical possession of the schedule property, further that if the first respondent fails to perform the sale formalities. the respondents 1 and 2 shall pay double the amount to the purchasers. The court ought to have appreciated that modus operandi of the respondents 1&2 is to defeat the objective of the sale agreement and also benefit commercially there from.
Even otherwise, the conduct of the first respondent was far from satisfactory. At one stretch she alleges strained relationship and separate living with the second respondent, her husband, but on the other side she claims she is living with her husband The Court ought to have appreciated that the second respondent was being set up by the first respondent to undo 55 her admission of the transaction. The respondents 1 & 2 were colluding with each other and denied the sale transaction, only to make unjust enrichment at the cost of the plaintiffs The Court also failed to appreciate that the termination of the sale agreement was much before the time stipulated under the contract. There was no occasion to do so unless with malafide intention. The Courts observation that plaintiffs paid the amount only when the defendants demanded and not earlier is again incorrect. When the time stipulated in the agreement is seven months and the time was still running, there is no occasion for respondents demanding for the money earlier. Therefore its observation that the plaintiffs were not ready is incorrect.
The Court below seems to have proceeded on the surmise that the plaintiffs have got issued the General Power of Attorney from first respondent and subsequently the sale deeds executed in favour of respondents 3 56 to 13. The entire discussion and basis of the judgment is based on this erroneous surmise.
The General Power of Attorney was executed on 12/4/1989 in favour of Felix. The legal notice for termination of contract was issued on 24/5/1989. Some of the sale deeds in favour of the respondents have been executed before termination. It is therefore clear that it was a ploy by the respondents 1 and 2 to nullify the effect of the sale agreement and later on to feign ignorance so as to claim double benefit. The court below ought to have viewed it very seriously against the 1" respondent Ex. P-3 is a legal notice issued by the first respondent to plaintiffs and it is beginning of the cause of action to the suit. On a careful reading of Ex P-3 it is clear that the first and the second respondents had set up a clever strategy to defraud the plaintiffs. It was the beginning of strain in the relationship At one stretch, the first respondent pleads ignorance of the sale 57 agreement dated 4/11/1988 and on other cancels the agreement. This by itself probablises the stand of the plaintiffs that the first respondent committed breach of contract. It is apparent from the contents of Ex P - 3 and 5, the legal notice and the rejoinder that the first respondent was trying to suppress the material truth and it was only to cover up her lapses. The illegal motive of the 1 and 2 respondents was clear from their game plan.
The Court below has rightly observed about Agreement of Sale Ex.P1 dated 4/11/1988 and after recording such a correct finding committed an error in recording a finding that the plaintiffs have failed to prove that they were put in possession of the suit property under Ex-P1.
The Court below is simply carried away by the evidence of the 1" defendant, where under she has stated that she is cultivating in the Schedule property by herself through labourers and maintaining her family members and according to the Court below 58 the said statement is sufficient to show that she is thus in possession of the schedule property and not the plaintiffs and this approach is wholly illegal and contrary to the well-recognized principles of appreciation of evidence.
Admittedly the schedule property is converted for residential purposes, further, it has come within the BBMP limits now, the stand of the respondent no1 that she is in cultivation of the Schedule Property cannot be accepted and is beyond imagination. Moreover, the respondent no1 and 2 are residing in a adjacent portion of the Schedule Property. measuring 11 guntas falling under the said order of conversion. The said theory of personal cultivation is setup and concocted only to give credence to her otherwise false case that she has not sold the sites to the respondents 3 to 11 through Felix The court gave more importance to the memo dated 30/8/2007 filed by the appellants vide Ex D-55 and 56, it was only 59 for the purpose of settlement and only to apprise this Hon'ble Court about the stage and nature of development that the said memo was filed, nothing more could have been attributed to it, court below could not given much reliance to it Even otherwise it would be clear from the follow up of events that the strategy of the respondents 1 and 2 was to make unlawful gain at the cost of the appellants. The respondents 1 and 2 are living together and come to the court, together.
The Court below has not kept in mind the settled legal position in the matter of granting specific performance. The Court below failed to notice that the relief of specific performance is discretionary but exercise of the said discretion should not be arbitrary and opposed to the judicial principles. The Court below failed to appreciate the principles envisaged Sec 20 of Specific Relief Act. The court below ought to have examined all the options available to the parties before arriving at the 60 conclusion. It failed to exercise proper discretion as provided under section 20 Specific Relief Act. Section 20 creates a estoppels against the respondent No. 1. The protection given under section 20 is clearly available to the appellants and the respondent No. 1 ought to have been injuncted from exercising possessory rights over the schedule property.
The Court below failed to notice that the 1"
respondent in categorical words has stated in her evidence at places more than once that she was willing to receive balance sale consideration and execute sale deed provided the plaintiffs had paid money within three months from the agreement of sale, but the period stipulated under the agreement of sale was Seven months, which clearly go to show that she had intention of selling the property and did not want to retain the property for herself. But she was putting lame excuses that the period agreed upon for completion of sale transaction was three months, whereas Ex.P1, the period stipulated was Seven 61 months. Oral evidence led by 1" defendant was inadmissible in law as it falls within section 92 of the Evidence Act and this aspect has been completely missed by the learned trial Judge in arriving at the conclusion The Court below further failed to notice that the 1" defendant had purchased the suit property in the year 1987, which is prior to one year from the date of Ex.P-1 and admittedly before entering in to the said agreement with the Plaintiffs, she had entered into an agreement of sale in favour of Raja Reddy and as the said Raja Reddy could not complete the sale transaction, it is with his consent the agreement of sale came to be executed by her, which clearly demonstrated that the intention of the 1"
defendant was to sell the property and utilize the proceeds for the family and therefore, this plea of hardship which is not pleaded and accepted by the Court below is on the whole cannot be countenanced and untenable and the Court below committed a 62 serious error in refusing to grant specific performance on that ground.
The Court below failed to notice that under Sec. 10 of the Specific Relief Act unless and until contrary is proved the Court shall presume that the breach of contract to transfer the immovable property cannot be adequately relieved by compensation in money and therefore, grant of specific performance in the real sense and it is for the defendants to make out a case why specific performance should not be granted. In the instant case no such material is placed by the defendants to justify refusal of relief of specific performance when law presumes that the damages is not adequate in case of breach of agreement to transfer immovable property.) The Court below has not kept in its mind the law relating to granting specific relief and the exercise of discretion of the Court in refusing specific performance is arbitrary. fanciful and perverse and therefore calls for interference by the Appellate Court as such on proper appreciation of the materials on record the 63 judgment and decree of the Court below is liable to be set aside and specific relief ought to be granted it also failed to appreciate the principles of Section 53-A of Transfer of Property Act. The sale agreement dated 4/11/1988 covenants for handing over possession of the suit schedule property to the plaintiffs; it is the case of the plaintiffs that they are already in possession in pursuance of the sale agreement The respondent no 1 & 2 are residing in the neighbouring plot to the Schedule whereas, the appellants are residing elsewhere. The respondents 182 have taken advantage of this to interfere with their peaceful possession and create third party rights To sum up, it is a clear ploy by the respondents no 1 & 2 to undo what they were obliged to do under the sale agreement dated 4/11/1988and unjustly enrich there from The court below ought to have considered these aspects to for arriving at the conclusion and accordingly allowed the 64 prayer for specific performance of sale agreement.
Without prejudice to the above, the court below having refused the decree for specific performance, ought to have ordered for refund of the sale consideration amount paid with interest and awarded damages as contemplated under Sec 21 of the Specific Relief Act. It is clear from the conduct of the respondents 1&2 that they have unjustly enriched at the cost of the appellants. The respondents cannot have both the land and the money received for sale.
Viewing from any angle, the Judgement and Decree suffers from irregularity, lacks proper appreciation of material available before it and therefore is liable to be set aside. The appellants crave leave of this Hon'ble Court to raise such additional grounds at the time of hearing and arguing the matter.
65The impugned judgment is delivered on 27th March 2008. The appeal filed is therefore in time.
Likewise, the plaintiffs (purchasers of individual sites in the aforesaid suits) have also raised following grounds:
Grounds in RFA.NO.1522/2010:
The impugned judgment is opposed to the facts of the case and the law applicable to the same.
The learned trial judge ought to have held from Exhibits P-3 to P-5, P10, 11, 15 to 16 would go a long way in establishing that the Plaintiff was indeed in possession of the Suit schedule property as on date of filing of the Suit.
The learned trial judge, after placing heavy reliance on the findings, regarding the alleged possession of the Respondent, made in the judgment passed in OS No.10709/1989, ought to have also taken note of the observations that were made in 66 the said judgment with regard to the execution of the Power of-Attorney by the Respondent in favour of A. Felix.
The learned trial judge has erred in holding that since the land in Sy No. 102/3 was not converted for non-agricultural purposes, the Appellant/Plaintiff cannot be said to be in possession of the said property.
The learned trial Judge grossly erred in holding that Exhibit P-3- the certified copy of the GPA executed by the Respondent in favour of A. Felix was not proved since the original was not produced, despite the specific statement on oath by PW-1 during her examination-in-chief that the original of the said document had been produced in OS No.10709/1989. Thus, the learned trial judge ought to have dispensed with the production of the original GPA when no objection whatsoever was raised by the Respondent when the certified copy of the same was marked as Exhibit P-3.67
The learned trial judge ought not to have made any observation with regard to the purport of Exhibit P-3, more-so in view of the fact when the validity or otherwise of the same is being subject to scrutiny before this Hon'ble Court in Cross-Objection No.32/2008.
The learned trial judge ought to have refrained from making any observation touching the title and possession of the Appellant over the Suit schedule property, more-so in the light of the pendency of the Appeal and Cross-Objection against the judgment in OS No. 10709/1989 before this Hon'ble Court. The fact of the pendency of the Appeal and Cross-Objection has been borne out from the deposition of both PW-1 as well as DW-1.
The learned trial judge ought to have appreciated that any adverse observation with regard to the possession or title of the Appellant would prejudice her case in Cross Objection No.32/2008, which is pending on the files of this Hon'ble Court.68
The learned trial judge has refused to accept the relevant material furnished by the Appellant in support of her case and has perfunctorily relied upon the documents produced by the Respondent, although they are largely unnecessary for the purposes of deciding the issues on hand.
The learned trial judge has failed to take note of the clear admission of the Respondent during her cross-examination that she had not filed any suit or legal proceeding challenging the validity of the registered sale deed executed in her favour by the Respondent and also the General Power-of-Attorney executed by the Respondent in favour of A. Felix. Under the said circumstances, it should have been observed that the said documents have remained unchallenged even as on today.
Viewed from any angle, the impugned judgment is unsustainable and hence deserves to be set aside.69
No other appeal or legal proceeding has been filed by the Appellant challenging the impugned judgment, either before this Hon'ble Court or any other Court of law.
The above Appeal is filed in time.
The relief of temporary injunction was valued before the trial Court at Rs.1000/- and a fixed Court fee of Rs.25/- was paid thereon in accordance with Section 26 (c) of the Karnataka Court Fee and Suits Valuation Act, 1958. The Appellant herewith prays a fixed Court fee of Rs.25/- is herewith paid in accordance with Section 49 of the said Act.
GROUNDS IN RFA.NO.1523/2010:
The impugned judgment is opposed to the facts of the case and the law applicable to the same.
The learned trial judge ought to have held from Exhibits P-4 to P-7 and Exhibit P-10 would go a long way in establishing that the Plaintiff was indeed in possession of the Suit 70 schedule property as on date of filing of the Suit.
The learned trial judge, after placing heavy reliance on the findings, regarding the alleged possession of the Respondent, made in the judgment passed in OS No. 10709/1989, ought to have also taken note of the observations that were made in the said judgment with regard to the execution of the Power of-Attorney by the Respondent in favour of A. Felix.
The learned trial judge has erred in holding that since the land in Sy. No. 102/3 was not converted for non-agricultural purposes, the Appellant/Plaintiff cannot be said to be in possession of the said property.
While in the instant Suit the learned trial judge holds that since the General Power- of-Attorney (executed by the Respondent in favour of A. Felix) is not produced, the same has not been proved, the learned judge refuses to accept the validity of the certified copy of the very same General Power-of-Attorney that was produced in OS 71 No.15141/2006 (as Ex. P-3), which was dismissed on the same day, on the ground that the original of the said document is not produced. This approach of the learned trial judge is inconsistent.
The learned trial judge ought to have taken judicial note of the production of the GPA as Exhibit P-3 in OS No. 15141/2006, particularly when the witnesses examined on behalf of both the sides as PW-1 & DW-1 in the present Suit and OS No.15141/2006 are one and the same and more importantly when the other three Suits, that were filed by the site-owners against the very same Respondent on the same sets of facts, were decided on the very same day (i.e 02.06.2010).14. The learned trial judge ought to have refrained from making any observation touching the title and possession of the Appellant over the Suit schedule property, more-so in the light of the pendency of the Appeal and Cross-
Objection against the judgment in OS No 10709/1989 before this Hon'ble Court. The fact of the pendency of the Appeal and 72 Cross-Objection has been borne out from the deposition of both PW-1 as well as DW-
1. The learned trial judge ought to have appreciated that any adverse observation with regard to the possession or title of the Appellant would prejudice her case in Cross Objection No.32/2008, which is pending on the files of this Hon'ble Court.
The learned trial judge has refused to accept the relevant material furnished by the Appellant in support of her case and has perfunctorily relied upon the documents produced by the Respondent, although they are largely unnecessary for the purposes of deciding the issues on hand.
The learned trial judge has failed to take note of the clear admission of the Respondent during her cross-examination that she had not filed any suit or legal proceeding challenging the validity of the registered sale deed executed in her favour by the Respondent and also the General Power-of-Attorney executed by the 73 Respondent in favour of A. Felix. Under the said circumstances, it should have been observed that the said documents have remained unchallenged even as on today.
Viewed from any angle, the impugned judgment is unsustainable and hence deserves to be set aside.
No other appeal or legal proceeding has been filed by the Appellant challenging the impugned judgment, either before this Hon'ble Court or any other Court of law.20. The above Appeal is filed in time.
The relief of temporary injunction was valued before the trial Court at Rs.1000/- and a fixed Court fee of Rs.25/- was paid thereon in accordance with Section 26 (c) of the Karnataka Court Fee and Suits Valuation Act, 1958. The Appellant herewith prays a fixed Court fee of Rs.25/- is herewith paid in accordance with Section 49 of the said Act.
GROUNDS IN RFA.NO.1524/2010:
The impugned judgment is opposed to the facts of the case and the law applicable to the same.74
The learned trial judge ought to have held from Exhibits P-2 to P-7 and P11 would go a long way in establishing that the Plaintiff was indeed in possession of the Suit schedule property as on date of filing of the Suit.
The learned trial judge, after placing heavy reliance on the findings regarding the alleged possession of the Respondent, made in the judgment passed in OS No. 10709/1989, ought to have also taken note of the observations that were made in the said judgment with regard to the execution of the Power of-Attorney by the Respondent in favour of A. Felix.
The learned trial judge has erred in holding that since the land in Sy No. 102/3 was not converted for non-agricultural purposes, the Appellant/Plaintiff cannot be said to be in possession of the said property.
While in the instant Suit the learned trial judge holds that since the General Power- of-Attorney (executed by the Respondent in 75 favour of A. Felix) is not produced, the same has not been proved, the learned judge refuses to accept the validity of the certified copy of the very same General Power-of-Attorney that was produced in OS No.15141/2006 (as Ex. P-3), which was dismissed on the same day, on the ground that the original of the said document is not produced. This approach of the learned trial judge is inconsistent.
The learned trial judge ought to have taken judicial note of the production of the GPA as Exhibit P-3 in OS No.15141/2006, particularly when the witnesses examined on behalf of both the sides as PW-1 & DW-1 in the present Suit and OS No. 15141/2006 are one and the same and more importantly when the other three Suits, that were filed by the site-owners against the very same Respondent on the same sets of facts, were decided on the very same day (i.e
02.06.2010).
The learned trial judge ought to have refrained from making any observation touching the title and possession of the 76 Appellant over the Suit schedule property, more-so in the light of the pendency of the Appeal and Cross-Objection against the judgment in OS No. 10709/1989 before this Hon'ble Court. The fact of the pendency of the Appeal and Cross-Objection has been borne out from the deposition of both PW-1 as well as DW-1..
The learned trial judge ought to have appreciated that any adverse observation with regard to the possession or title of the Appellant would prejudice her case in Cross Objection No.32/2008, which is pending on the files of this Hon'ble Court.
The learned trial judge has refused to accept the relevant material furnished by the Appellant in support of her case and has perfunctorily relied upon the documents produced by the Respondent, although they are largely unnecessary for the purposes of deciding the issues on hand.
The learned trial judge has failed to take note of the clear admission of the Respondent during her cross-examination 77 that she had not filed any suit or legal proceeding challenging the validity of the registered sale deed executed in her favour by the Respondent and also the General Power-of-Attorney executed by the Respondent in favour of A. Felix. Under the said circumstances, it should have been observed that the said documents have remained unchallenged even as on today.
Viewed from any angle, the impugned judgment is unsustainable and hence deserves to be set aside.
No other appeal or legal proceeding has been filed by the Appellant challenging the impugned judgment, either before this Hon'ble Court or any other Court of law.
The above Appeal is filed in time.
The relief of temporary injunction was valued before the trial Court at Rs.1000/- and a fixed Court fee of Rs.25/- was paid thereon in accordance with Section 26 (c) of the Karnataka Court Fee and Suits Valuation 78 Act, 1958. The Appellant herewith prays a fixed Court fee of Rs.25/- is herewith paid in accordance with Section 49 of the said Act.
GROUNDS IN RFA.NO.1525/2010:
The impugned judgment is opposed to the facts of the case and the law applicable to the same.
The learned trial judge ought to have held from Exhibits P-4 to P-8 would go a long way in establishing that the Plaintiff was indeed in possession of the Suit schedule property as on date of filing of the Suit.
The learned trial judge, after placing heavy reliance on the findings, regarding the alleged possession of the Respondent, made in the judgment passed in OS No. 10709/1989, ought to have also taken note of the observation that were made in the said judgment with regard to the execution of the Power of Attorney by the Respondent in favour of A. Felix.
The learned trial has erred in holding that since the land in Sy No. 102/3 was not 79 converted for non-agricultural purposes, the Appellant/Plaintiff cannot be said to be in possession of the said property.
While in the instant Suit the learned trial judge holds that since the General Power- of-Attorney (executed by the Respondent in favour of A. Felix) is not produced, the same has not been proved, the learned judge refuses to accept the validity of the certified copy of the very same General Power-of-Attorney that was produced in OS No. 15141/2006 (as Ex. P-3), which was dismissed on the same day, on the ground that the original of the said document is not produced. This approach of the learned trial judge is inconsistent.
The learned trial judge ought to have taken judicial note of the production of the GPA as Exhibit P-3 in OS No.15141/2006, particularly when the witnesses examined on behalf of both the sides as PW-1 & DW-1 in the present Suit and OS No.15141/2006 are one and the same and more importantly when the other three Suits, that were filed by the site-owners against the very same 80 Respondent on the same sets of facts, were decided on the very same day (i.e 02.06.2010).
The learned trial judge ought to have refrained from making any observation touching the title and possession of the Appellant over the Suit schedule property, more-so in the light of the pendency of the Appeal and Cross-Objection against the judgment in OS No.10709/1989 before this Hon'ble Court. The fact of the pendency of the Appeal and Cross-Objection has been borne out from the deposition of both PW-1 as well as DW-1.
The learned trial judge ought to have appreciated that any adverse observation with regard to the possession or title of the Appellant would prejudice her case in Cross Objection No.32/2008, which is pending on the files of this Hon'ble Court.
The learned trial judge has refused to accept the relevant material furnished by the Appellant in support of her case and has perfunctorily relied upon the documents 81 produced by the Respondent, although they are largely unnecessary for the purposes of deciding the issues on hand.
The learned trial judge has failed to take note of the clear admission of the Respondent during her cross-examination that she had not filed any suit or legal proceeding challenging the validity of the registered sale deed executed in her favour by the Respondent and also the General Power-of-Attorney executed by the Respondent in favour of A. Felix. Under the said circumstances, it should have been observed that the said documents have remained unchallenged even as on today.
Viewed from any angle, the impugned judgment is unsustainable and hence deserves to be set aside. 19. No other appeal or legal proceeding has been filed by the Appellant challenging the impugned judgment, either before this Hon'ble Court or any other Court of law.
The above Appeal is filed in time.
82The relief of temporary injunction was valued before the trial Court at Rs.1000/- and a fixed Court fee of Rs.25/- was paid thereon in accordance with Section 26 (c) of the Karnataka Court Fee and Suits Valuation Act, 1958. The Appellant herewith prays a fixed Court fee of Rs.25/- is herewith paid in accordance with Section 49 of the said Act."
32. Reiterating the grounds urged in the appeal memorandum, Sri Anandram K., learned counsel for appellants 1 to 6 in RFA No.736/2008 vehemently contended that the intended purchasers/plaintiffs were non suited by the Trial Court only on the ground of un- preparedness and un-readiness to perform their portion of the contract. He also contended that the Trial Court recorded a fusty finding in favour of the appellants insofar as the validity of the agreement marked at Ex.P.1 and so also payment of a sum of Rs.3,75,000/-
referred to supra which includes the payment made by the second vendor - husband of the first vendor. He 83 also invited the attention of this Court on the finding of validity of the agreement at Ex.P.1 and payment of major portion of the sale consideration in a sum of Rs.3,75,000/- is not challenged by the vendors (defendants) by filing separate appeal or filing cross objections. Thus, the appellants are required to persuade this Court only with regard to the finding of the Trial Court that intended purchasers - plaintiffs were not ready and Willing to perform their part of contract in paying the balance sale consideration. He further argued that the said finding of Trial Court is per se against the material evidence on record and thus sought for allowing the appeal.
33. In support of his arguments, he relied on the following decisions for ready reference:
1. AIR 2021 SC 5581 - Sughar Singh V. Hari Singh (Dead) Through LRs. and Others.
2. (2019) 8 SCC 62 - R.Lakshmikantham v. Devaraji 84
3. (2017) 4 SCC 654 - A.Kanthamani V. Nasreen Ahmed.
4. (1997) 4 SCC 481 - Bibi Jaibunisha v. Jagadish Pandit & Others.
5. (2008) 11 SCC 45 - Silvey & Others v. Arun Varghese and Another.
6. (2008) 4 SCC 464 -Balasaheb Dayandeo Naik (Dead) Through LRs and Others v. Appasaheb Dattaraya Pawar.
7. (2004) 8 SCC 689 - Swarnam Ramachandran (Smt.) and Another v. Aravacode Chakungal Jayapalan.
34. It is their submission in chorus that mere filing of individual suits by them, did not act as a deterrent for the learned Trial Judge to record a finding with regard to their rights as per the direction issued by the Division Bench of this Court in RFA No.619/1996 and as such, the impugned judgment to that extent suffers from legal infirmity and sought for remand of the case to the Trial Court to record a finding as per the directions passed in RFA No.619/1996.
8535. In view of the rival contentions of the parties and on perusal of the materials on record, the following points would arise for consideration:
1) Whether the appellants/plaintiffs have made out a case that they were ready and willing to perform their portion of the contract as per Ex.P.1 and thus they are entitled for specific enforcement of sale agreement dated 04.11.1989?
2) Whether the respondent Nos.1 to 9 have make out a case for remand of the matter for recording a specific finding insofar as their rights are concerned as per the directions issued by this Court in RFA No.619/1999?
3) Whether the impugned judgment suffers from legal infirmity or perversity and thus calls for interference?
4) What order?
36. Having heard the parties at length and on cumulative reconsideration of the oral and documentary 86 evidence on record, following admitted points would emerge:
There was a contract between the intended purchasers (plaintiffs) and vendors (defendant Nos.1 and 2) on 04.11.1988 (Ex.P1) and a sum of Rs.2,00,000/- was paid by the plaintiffs as advance amount on 04.11.1988 for sale of suit property for consideration in sum of Rs.5,50,000/- at the rate of Rs.2,20,000/- per acre.
Subsequently, the plaintiffs have made two payments which has been denied by the first vendor, but the Trial Court has recorded a categorical finding that the payment made to the second vendor husband is to be construed as further consideration towards the Ex.P.1. The vendors having not challenged the said finding by filing necessary appeal or cross-objection, payment of Rs.3,75,000/- towards the sale consideration stands proved.
Mr. A Felix has formed unregistered layout and sold the sites to the general public, few of them are respondents and some others purchasers were not impleaded as parties to the suit.87
Suit of the plaintiffs came to be partly decreed at the first instance by the judgment and decree dated 27.08.1996 as under:
"The suit of the plaintiffs is partly decreed. Plaintiffs prayer for specific performance of contract is dismissed.
The plaintiffs are entitled for sum of Rs.2,00,000/- against the defendant No.1 with proportionate costs and interest at 10% p.a., from the date of filing of the suit.
Draw decree accordingly."
37. Being aggrieved by the same, plaintiffs/appellants filed RFA No.619/1996. The said appeal was disposed of by order dated 05.09.2007 as referred to supra.
38. After the remand order came to be passed, suit was re-adjudicated before the Trial Court.
8839. In the case of Smt. Padmini Raghavan Vs. Mr. H.A. Sonnappa reported in ILR 2014 KAR 233 this Court at Paras 40 to 54, which reads as under:
"40. In a suit for specific performance the plaintiff should not only plead and prove the terms of the agreement, but also plead and prove his readiness and willingness to perform his obligation under the contract in terms of the contract.
41. Section 16 of the 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 violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or 89
(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.
Explanation.- For the purposes of clause (c),-
(i) where a contract involves 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;
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.
42. This provision has been the subject matter of interpretation by the Apex Court on several occasions:
43. The law on the point is well settled. The Supreme Court in the case of N.P.THIRUGNANAM (DEAD) BY LRS vs DR R.JAGAN MOHAN RAO AND OTHERS [(1995) 5 SCC 115] has held as under: -
90"5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act 1963 (for short, 'the Act'). Under Section 20, the court is not bound to grant the relief just because there was valid agreement of sale.
Section 16(c) of the Act envisages that plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the 91 contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract."
44. The Supreme Court in the case of HIS HOLINESS ACHARYA SWAMI GANESH DASSJI vs SITA RAM THAPAR [(1996) 4 SCC 526] has held as under: -
"2. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the 92 purchase price. For contract, the conduct has to be properly scrutinised. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the execution of the agreement, i.e., by 27.2.1975. The draft sale deed was not returned after being duly approved by the petitioner. The factum of readiness and willingness to perform plaintiff's part of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to abide for the time which disentitles him as time is the essence of the contract."
45. The Supreme Court in the case of RAM AWADH (DEAD) BY LRS AND OTHERS Vs 93 ACHHAIBAR DUBEY AND ANOTHER [2000 (2) SCC 428] interpreting section 16 of the Specific Performance Act 1963 has held as under: :
"6. The obligation imposed by Section 16 is upon the court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c) thereof. A court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit. We are of the view that the decision in Jugraj Singh's case is erroneous.
46. The Apex Court in the case of P.D'Souza v. Shondrilo Naidu [ 2004 (6) SCC 649] has held as under :
94"It is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of the contract. The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf."
47. The Supreme Court in the case of ANIGLASE YOHANNAN V. RAMLATHA (2005) 7 SCC 534 [SCC p 540, para 12) has held as under:
"12. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the 95 plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief."
This Court further held that the averments relating to readiness and willingness are not a mathematical formula which should be expressed in specific words and if the averments in the plaint as a whole, do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract, the fact that the wording was different, will not militate against the readiness and willingness of the plaintiff. The above observations cannot be construed as requiring only a pleading in regard to readiness and willingness and not `proof' relating to readiness and willingness. In fact, in the very next para, this Court clarified that Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. Therefore, the decision merely reiterates the need for both pleadings and proof in regard to readiness and willingness of the plaintiff.
48. The Supreme Court in the case of M.M.S. INVESTMENTS, MADURAI AND OTHERS Vs 96 V.VEERAPPAN AND OTHERS [2007 AIR SCW 4809] has held as under:-
"5. Questioning the plea of readiness and willingness is a concept relatable to an agreement. After conveyance the question of readiness and willingness is really not relevant. Therefore, the provision of the Specific Relief Act, 1963 (in short the 'Act') is not applicable. It is to be noted that the decision in Ram Awadh's case (supra) relates to a case where there was only an agreement. After the conveyance, the only question to be adjudicated is whether the purchaser was a bona fide purchaser for value without notice. In the present case the only issue that can be adjudicated is whether the appellants were bona fide purchasers for value without notice. The question whether the appellants were ready and willing is really of no consequence. In Ram Awadh's case (supra) the question of the effect of a completed sale was not there.
Therefore, that decision cannot have any application so far as the present case is concerned. Once there is a conveyance the concept would be different and the primary relief could be only cancellation."
9749. The Supreme Court in the case of AZHAR SULTANA vs B. RAJAMANI AND OTHERS [AIR 2009 SC 2157] has held as under:-
"18. Section 16(c) of the Specific Relief Act, 1963 postulates continuous readiness and willingness on the part of the plaintiff. It is a condition precedent for obtaining a relief of grant of specific performance of contract. The court, keeping in view the fact that it exercises a discretionary jurisdiction, would be entitled to take into consideration as to whether the suit had been filed within a reasonable time. What would be a reasonable time would, however, depend upon the facts and circumstances of each case. No hard and fast law can be laid down therefor. The conduct of the parties in this behalf would also assume significance.
50. The Supreme Court in the case of MAN KAUR (DEAD) BY LRS vs HARTAR SINGH SANGHA [(2010) 10 SCC 512] has held as under:-
"12. Section 16(c) of the Specific Relief Act 1963 (`Act' for short) bars the specific performance of a contract in favour of a plaintiff "who fails to aver and prove that he has performed or has always 98 been ready and willing to perform the essential terms of the contract which are to be performed by him (other than terms of the performance of which has been prevented or waived by the defendant).
Explanation (ii) to section 16 provides that for purposes of clause (c) of section 16, "the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.
Thus in a suit for specific performance, the plaintiff should not only plead and prove the terms of the agreement, but should also plead and prove his readiness and willingness to perform his obligations under the contract in terms of the contract.
51. Thus, Section 16(c) of the Act envisages that plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant 99 the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief.
52. Thus in a suit for specific performance, the plaintiff should not only plead and prove the terms of the agreement, but should also plead and prove his readiness and willingness to perform his obligations under the contract in terms of the contract. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the 100 same, he must fail. It is indisputable that in a suit for specific performance of contract, the plaintiff must establish his readiness and willingness to perform his part of the contract. The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till the date of the decree, he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to 101 the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract.
53. Readiness and willingness refer to the state of mind and conduct of the purchaser, as also his capacity and preparedness on the other. One without the other is not sufficient. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. In so far as willingness is concerned, it reflects the mental attitude of the plaintiff to part with or pay the balance sale consideration agreed to be paid. If there are any reservations without any justification, or it is made conditional on the happening of any event which is not agreed upon, it shows his unwillingness to perform his part of the contract. The obligation imposed by Section 16 is upon the court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c) thereof. A 102 court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the court to determine whether it has or has not been complied with.
54. Therefore, it is necessary to see whether there is a proper plea which satisfies the requirement of Section 16(c) of the Specific Relief Act, 1963. In para 4 it is stated that the plaintiff was ever ready and willing to perform his part of the obligation and he was ever ready with the balance sale consideration amount and that the plaintiff requested the defendant more than a dozen times to come and execute the sale deed. In para 5 of the plaint the plaintiff has averred that right from the date of execution of the agreement he was ready to perform his part of the obligation as 103 contemplated under the agreement. On the other hand the defendant had evaded to execute the sale deed on one pretext or the other. The plaintiff during 1993 had got issued two legal notices to the defendant. Though the defendant received the said notice, she never replied nor complied."
40. Post remand there was no amendment to the plaint except that the impleading applicants were made as parties. P.W.1, ofcourse filed an additional affidavit and cross-examined as referred to supra.
41. It is pertinent to note that by the time remand order came to be passed, portion of the suit property was already sold in favour of the additional defendant Nos.1 to 10 by Mr. A. Felix, under the alleged power of attorney of first vendor. Second vendor is a witness to the said power of attorney. Therefore, the plaint needed an amendment with necessary pleadings.
Further, plaintiffs did not challenge the sale made by Mr. 104 A. Felix in favour of additional defendant Nos.1 to 10.
In other words, plaintiffs were though aware of subsequent development of suit property did not choose to amend the plaint and continued the suit as per its original pleadings and prayer.
42. In this regard, it is pertinent to bestow attention to Section 12 of the Specific Relief Act, which reads as under:
"12. SPECIFIC PERFORMANCE OF PART OF CONTRACT:
(1) Except as otherwise hereinafter provided in this section, the court shall not direct the specific performance of a part of a contract.
(2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in value and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so much of the contract 105 as can be performed, and award compensation in money for the deficiency.
(3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either--
(a) forms a considerable part of the whole, though admitting of compensation in money; or
(b) does not admit of compensation in money;
he is not entitled to obtain a decree for specific performance; but the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party--
(i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and in a case falling under clause (b), 7[pays or has paid] the consideration for the whole of the contract without any abatement; and
(ii) in either case, relinquishes all claims to the performance of the remaining part of the 106 contract and all rights to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant.
(4) When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part."
43. In view of above provision of law plaintiffs should have amended the plaint resorting to the Section 12 of the said Act. At one breath, the plaintiffs contend that Mr. A. Felix is not known to them and they have nothing to do with the sale transaction said to have taken place between additional defendant Nos.1 to 10 and Mr.A. Felix. At the same time, plaintiffs have got issued the joint reply (including Mr. A.Felix) vide Ex.P.4 even at an undisputed point of time. Therefore, the 107 conduct of the plaintiffs in stating that they are no way concerned with Mr. A. Felix cannot be countenanced in law. Further, cross-examination made by plaintiffs to D.Ws.1 and 2 clearly show that they were aware of Mr. A. Felix being involved in the sale transaction.
44. In this factual background, the case of the plaintiffs needs to be assessed insofar as their real intention to conclude the sale agreement under Ex.P.1.
Admittedly, after the exchange of notices and rejoinder, plaintiffs did not get the sale deed registered by paying balance amount. Further, they got sold the sites to the additional defendant Nos.1 to 10 through Mr. A. Felix.
Whether Mr. A. Felix appropriated the sale consideration or paid to the vendors or to the plaintiffs is not forthcoming on record. Admittedly, Mr. A. Felix was no more by the time the Trial took place. When Mr. A. Felix died is also not forthcoming on record. Be it what it may. The role of Mr. A. Felix in forming an unauthorized 108 layout in the suit property was not objected to by the plaintiffs nor any injunction is sought against Mr. A. Felix by the plaintiffs. Therefore, it would be inferred that the plaintiffs were aware of the transactions carried out by Mr. A. Felix and kept quiet. Therefore, the doctrine of acquiescence by waiver would come in reply.
45. The obvious inference that could be made in the above circumstances is that the plaintiffs acquiesces their right and allowed Mr. A. Felix to form unauthorized layout in the suit property and did not take any action would amount to waiver. Accordingly, based on doctrine of acquiescence and waiver the right to enforce the contract in entirety is lost by the plaintiffs.
46. This aspect of the matter is relevant while appreciating the finding recorded by the Trial Court that Ex.P.1 is a speculative contract and plaintiffs were not ready and willing to perform their portion of the contract.
10947. It is also necessary for this Court to cull out clauses in Ex.P.1 which reads as under:
"Now in need of funds the vendor has offered a portion of land measuring 2 acres 20 guntas of Horamavu Village, Bangalore South Taluk, more fully described in the schedule hereunder, at the rate of Rs.2.20,000/-( Rupees Two Lakh Twenty thousand only) per acre, to which the purchasers herein have agreed to purchase the at the rate mentioned above, and in pursuance of this agreement of sale executed by the vendor in favour of the purchaser, the have paid an advance consideration of Rs.2,00,000/- before the under mentioned witnesses, and the receipt of which is hereby acknowledged by the vendor.
The vendor agreed to receive the balance sale consideration as per calculation periodically within seven months from this day, for which the purchasers have also agreed.
The time agreed between the parties to this agreement is only seven months from the date of this agreement.110
The Vendor is liable to produce all the records relating to the schedule property whenever the purchasers demand the same. And this day the vendor is handed over the physical possession of the schedule property.
The Vendors is also liable to execute the sale deed or (The other deeds in favour of the purchasers or their nominee/s.) (Emphasis supplied) The Vendor is also agreeable and liable to sell the schedule property as a whole or in bits."
48. If these clauses are perused, there was no necessity for Mr. A. Felix to enter into the contract between plaintiffs and their vendors. Admittedly, the vendors have cancelled the sale agreement in their rejoinder notice, referred to supra. The plaintiffs have managed to get power of attorney in the name of Mr. A. Felix and started selling the individual site to general public who are additional defendant Nos.1 to 10. In this 111 regard, the defence taken by the first vendor that Mr. A. Felix is a fictitious person and the power of attorney executed by her in favour of Mr. A. Felix is a bogus document assumes considerable significance. It is pertinent to note that special power of attorney marked at Exs.D.77 to D.79 are not proved. Admittedly, these documents are produced by D.W.4, but not even a copy of the power of attorney was produced by the plaintiffs.
Plaint averments are also silent at the first instance and even after remand, plaint was not amended so as to meet the power of attorney which is said to have been executed by the first defendant in favour of Mr. A. Felix.
The silence on the part of the plaintiffs even after the remand and inaction of the plaintiffs in non-amending the plaint challenging the power of attorney said to have been executed by first vendor in favour of Mr. A. Felix speaks much about the conduct of plaintiffs. In this regard, the argument of the first vendor that the contract is incapable of enforcement for more than one 112 reasons; firstly it was rescinded by the vendors by issuing a rejoinder notice and secondly being speculative in nature assumes importance.
49. Trial Court no doubt bestowed its attention on to the said aspect of the matter in recording a finding while answering issue No.6 and additional issue No.2 has held as under.
Issue No.6 & Addl. Issue NO.2:
"These issues are interlinked each other. Hence, I proceed to give finding together. In this case, as the plaintiffs themselves were not ready and willing to pay the entire balance sale consideration at one lump sum and to obtain the sale deed from the 1st defendant, they are not entitled for specific performance of contract. As on today, the value of the suit property is more than crores. The delay in not disposing this case is mainly due to the alleged power of attorney obtained by the plaintiffs in the name of A. Felix and also due to execution of sale deeds in favour of additional defendants arid others in respect of sites said to have been formed survey No. 102/3. At this stage, if the 1st defendant is 113 directed to execute the sale deed, the 1st defendant will be put to much hardship and inconvenience than the plaintiffs. The plaintiffs are the real estate agents. They are purchasing lands for forming layouts and to sell the same to the needy persons. As the plaintiffs already received the amount from the additional defendants as sale consideration, they will not be put to much hardship. The plaintiffs have produced certified copy of the plaint in OS No. 15692/05 as per Ex. P.10. By perusing Ex.P.10, it is clear that the brother of the 2nd defendant herein filed a suit for partition against the defendants herein and his mother. The subject matter of this suit is also subject matter in that suit. Hence, I come to the conclusion that plaintiffs are not entitled for specific performance of contract."
50. In the light of the above discussion, this Court re-appreciated the materials on record and the arguments put forth on behalf of the parties .
51. On such re-appreciation, it is seen that there is no dispute as to the agreement entered into between 114 plaintiffs and defendant Nos.1 and 2. However, at the time of the agreement a sum of Rs.2,00,000/- was paid.
Material on record discloses that Rs.1,00,000/- was paid towards the part consideration out of Rs.5,50,000/-
being the total sale consideration and Rs.1,00,000/- was appropriated towards the earlier sale agreement .
52. In the agreement, no doubt the time fixed for completion of contract is seven months. The first defendant however stated that even though seven months time is fixed in the agreement, plaintiffs agreed to complete the transaction in three months. In the meantime, material on record disclose that the first defendant was admitted to the hospital as she was pregnant. At that juncture, few signatures of first defendant are obtained. Contention taken by the defendant No.1 is that her signatures were obtained on blank stamp paper and that was converted into the power of attorney in the name of Mr. A. Felix. The said 115 document according to first defendant is a fraudulent and bogus document. First defendant has also specifically stated that she did not appear before the Notary as she was inpatient in the hospital at Jayanagar.
Admittedly, said power of attorney is a notarized power of attorney. When the said power of attorney came to the knowledge of the first defendant, she got issued a notice terminating the contract under Ex.P.1. Said notice is marked at Ex.P.3 as referred to supra. After receipt of Ex.P.3 plaintiffs including Mr.A.Felix issued reply vide Ex.P.4. In other words, in view of the joint reply issued by the Plaintiffs including on behalf of Felix, they cannot plead that they are not aware of Mr. A. Felix.
53. Mr. A. Felix on the strength of the power of attorney formed layout and carved out individual sites in the suit property. Material on record clearly establish that it is an unauthorized layout. When such is the factual aspect, plaintiff terminated the suit agreement 116 by issuing a rejoinder as referred to supra. Admittedly, the agreement itself contain clauses that defendants would be obliged to execute a sale deed in favour of individual site owners. When that being so, the power of attorney in favour of Mr. A. Felix is a surplusage.
Material on record also disclose that the defendants cancelled the agreement not on the ground that the amount received by Mr. A. Felix is not paid to the defendants. But, cancellation is on the ground that plaintiffs did not pay the balance sale consideration and defendants realized that the contract entered into by the plaintiffs in Ex.P.1 is a speculative contract. More so, when Mr. A. Felix has started collecting money from the intended buyers of the individual sites and plaintiffs failed to make the balance sale consideration to the defendant Nos.1 and 2.
54. Therefore, in the background of the above factual aspects, recording a finding by the Trial Court 117 that plaintiffs were not ready and willing to perform their portion of the contract assumes greater significance.
55. Further, in the case of Smt. Padmini Raghavan supra, mere having capacity to pay the balance consideration by itself cannot be considered as readiness and willingness. It is one thing that a person may have sufficient money with him; but his willingness to perform the contract is another thing. Plaintiffs seeking specific enforcement of a contract must establish both readiness and willingness by placing cogent evidence on record. The intention of the parties assumes importance and the intention can be inferred by cumulative consideration of the circumstances of that particular case.
56. When the said test is applied, plaintiffs having replied the notice at Ex.P.3 including that of Mr. A. Felix, turning around before the Court and say that Mr. A. Felix is not acquainted to them and Mr. A. Felix 118 acted on the basis of power of attorney said to have been executed by the first defendant shows the intention of the plaintiffs in not performing their portion of the contract.
57. Admittedly, the individual site owners were not made as parties to the suit. Therefore, they got impleaded in RFA No.619/1996. After considering the said aspect of the matter, this Court passed an order in RFA No.619/1996 as referred to supra and remanded the suit for fresh consideration. It is an admitted fact on record that post remand, the plaintiffs did not amend their plaint at least seeking remaining portion of the land to be conveyed by a decree of specific performance by resorting to the powers vested in the Court under Section 12 of the Specific Relief Act. No evidence is also placed on record by the plaintiffs as to how many sites that were carved out in the suit property by Felix and how many of them have been sold to different persons.
11958. On the contrary, the individual site owners themselves got impleaded in the suit and they laid their claim. In the absence of any such pleading and proof, taking note of the conduct of the plaintiffs, assumes importance as is held in the case of Silvi Supra relied on by the plaintiff themselves. The above conduct of the plaintiffs, has been rightly appreciated by the Trial Court and dismissed the suit of the plaintiffs in toto.
59. Learned counsel for the appellants to strengthen his arguments, relied on the judgments referred to supra. There cannot be any dispute as to the legal principles enunciated in the aforesaid judgments.
However, facts and circumstances of each case will have to be looked into separately and the principles of law ought to be applied accordingly.
60. In the case of Sughar Singh v. Hari Singh(dead) through LRs. and Others, reported in 120 AIR 2021 SC 5581, the Hon'ble Apex Court in para 44 to 48 has held as under:
"44. Even the observations made by the High Court that Forms 47 and 48 of the Appendix A to the CPC provide for making an averment that the plaintiff has been "and still is ready and willing specifically to perform the agreement on his part"
or that "the plaintiff is still ready and willing to pay the purchase money of the said property to the defendant" and that "there is non-compliance of Section 16(c) of the Specific Relief Act and the plaint does not even contain any averment that the plaintiff ever required defendant no. 1 to attend the office of the Sub-Registrar to execute the sale deed within time agreed are too technical in the facts and circumstances of the case. The overall circumstances and the conduct on the part of the parties are relevant consideration for the purpose of deciding the aforesaid issues and the prayer of the plaintiff in whose favour the execution of the agreement to sell has been held to be proved. The High Court has given unnecessary stress on the word "still".
12145. Even while proving the readiness and willingness the plaintiff is not required to make any averment that the plaintiff required executant of the agreement to sell to attend the office of the Sub-Registrar to execute the sale deed within the time agreed. Even as held by this Court in the case of C.S. Venkatesh v. A.S.C. Murthy (Dead) By Lrs. reported in (2020) 3 SCC 280 to adjudge whether the plaintiff is ready and willing to perform his part of contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to filing of the suit along with other attending circumstances in a particular case. It is also further observed that whether the plaintiff was ready and was always ready to perform his part of contract may be inferred from the facts and circumstances of a particular case. It is further observed that it is not necessary for the plaintiff to produce ready money but it is mandatory on his part to prove that he has means to generate consideration amount. In the present case even it was not the case on behalf of the defendants and even there is no finding by the High Court that the plaintiff was not having any means to generate consideration amount. It is required to be noted that as per the last extension 122 and the document executed the balance amount of sale consideration i.e. Rs. 16,000/- was to be paid at the time of execution of the sale deed and earlier out of Rs. 56,000/- of total sale consideration, Rs. 40,000/- was already paid and there were two extensions at the instance of the original defendant No. 1 who was his father-in- law.
46. Now, so far as the finding recorded by the High Court and the observations made by the High court on Section 20 of the Act and the observation that even if the agreement is found to be duly executed and the plaintiff is found to be ready and willing to perform his part of the Agreement, grant of decree of specific performance is not automatic and it is a discretionary relief is concerned, the same cannot be accepted and/or approved. In such a case, many a times it would be giving a premium to the dishonest conduct on the part of the defendant/executant of the agreement to sell. Even the discretion under Section 20 of the Act is required to be exercised judiciously, soundly and reasonably. The plaintiff cannot be punished by refusing the relief of specific performance despite 123 the fact that the execution of the agreement to sell in his favour has been established and proved and that he is found to be always ready and willing to perform his part of the contract. Not to grant the decree of specific performance despite the execution of the agreement to sell is proved; part sale consideration is proved and the plaintiff is always ready and willing to perform his part of the contract would encourage the dishonesty. In such a situation, the balance should tilt in favour of the plaintiff rather than in favour of the defendant - executant of the agreement to sell, while exercising the discretion judiciously.
47. For the aforesaid, even amendment to the Specific Relief Act, 1963 by which section 10(a) has been inserted, though may not be applicable retrospectively but can be a guide on the discretionary relief. Now the legislature has also thought it to insert Section 10(a) and now the specific performance is no longer a discretionary relief. As such the question whether the said provision would be applicable retrospectively or not and/or should be made applicable to all pending proceedings including appeals is kept 124 open. However, at the same time, as observed hereinabove, the same can be a guide.
48. Even otherwise it is required to be noted that as such on applicability of Section 20 of the Act, no issue was framed either by the learned Trial Court or by the learned First Appellate Court or even by the High Court. The same has been dealt with by the High Court for the first time in a Second Appeal under Section 100 of the CPC. Even otherwise no cogent reasons have been given as to why the decree of specific performance shall not be passed in favour of the plaintiff."
61. As could be seen from the aforesaid paragraphs, the Courts dealing with a prayer for specific enforcement of contract of sale, necessarily look into the amendment made to the Specific Relief Act vide Section 10(A) as a grading principle.
62. In the case of R.Lakshmikantham v.
Devaraji, reported in (2019) 8 SCC 62, the Hon'ble Court in para No.11 it has been held as under:
12511. The High Court order is not correct in stating that readiness and willingness cannot be inferred because the letters dated 18-12-2002 and 19-12-
2002 had not been sent to the defendant. The High Court also erred in holding that despite having the necessary funds, the plaintiff could not be said to be ready and willing. In the aforesaid circumstances, the High Court was also incorrect in putting a short delay in filing the suit against the plaintiff to state that he was not ready and willing. In India, it is well settled that the rule of equity that exists in England, does not apply, and so long as a suit for specific performance is filed within the period of limitation, delay cannot be put against the plaintiff -- See Mademsetty Satyanarayana v. G. Yelloji Rao [Mademsetty Satyanarayana v. G. Yelloji Rao, AIR 1965 SC 1405] (para 7) which reads as under: (AIR p. 1409) "7. Mr Lakshmaiah cited a long catena of English decisions to define the scope of a court's discretion. Before referring to them, it is necessary to know the fundamental difference between the two systems-- English and Indian--qua the relief of specific performance. In England the relief of specific performance pertains to the domain of equity; in India, to that of statutory law. In England there is no period 126 of limitation for instituting a suit for the said relief and, therefore, mere delay -- the time lag depending upon circumstances
-- may itself be sufficient to refuse the relief; but, in India mere delay cannot be a ground for refusing the said relief, for the statute prescribes the period of limitation. If the suit is in time, delay is sanctioned by law; it is beyond time, the suit will be dismissed as barred by time; in either case, no question of equity arises."
63. In the case of A. Kanthamani v. Nasreen Ahmed , (2017) 4 SCC 654, the Hon'ble Court has held as under:
"30. Coming first to the submission of the learned counsel for the appellant about the maintainability of the suit, in our considered view, it has no merit for more than one reason:
30.1. First, as rightly argued by the learned counsel for the respondent, the objection regarding the maintainability of the suit was neither raised by the defendant in the written statement nor in the first appeal before the High Court and nor in grounds of appeal in this Court.127
30.2. Second, since no plea was raised in the written statement, a fortiori, no issue was framed and, in consequence, neither the trial court nor the High Court could render any finding on the plea.
30.3. Third, it is a well-settled principle of law that the plea regarding the maintainability of suit is required to be raised in the first instance in the pleading (written statement) then only such plea can be adjudicated by the trial court on its merits as a preliminary issue under Order 14 Rule 2 CPC.
Once a finding is rendered on the plea, the same can then be examined by the first or/and second appellate court. It is only in appropriate cases, where the court prima facie finds by mere perusal of plaint allegations that the suit is barred by any express provision of law or is not legally maintainable due to any legal provision; a judicial notice can be taken to avoid abuse of judicial process in prosecuting such suit. Such is, however, not the case here.
30.4. Fourth, the decision relied on by the learned counsel for the appellant in I.S. Sikandar [I.S. Sikandar v. K. Subramani, (2013) 15 SCC 27 128 : (2014) 4 SCC (Civ) 365] turns on the facts involved therein and is thus distinguishable.
30.5. Lastly, the suit filed by the respondent seeking specific performance of the agreement dated 5-3-1989 was maintainable for the reason that the cause of action to file the suit arose on the expiry of period mentioned in the agreement (31-12-1989) for its performance as provided in Article 54 of the Limitation Act and it was rightly filed immediately within 10 days on 10-1-1990."
64. In the case Silvey and Others v. Arun Varghese and another case supra , para 4, para 5 and 9 to 14 it has been held as under:
"4. The trial court held on the materials that time was not of essence of the contract and that the plaintiffs had the requisite capacity to raise funds for the purchase of the property covered by Exhibit A-1. But, the trial court held that plaintiffs had not taken prompt steps for enforcement of the obligations under Exhibit A-1 agreement for sale. But, it did find that the defendants had not yet obtained the certificates of registration from the Rubber Board as envisaged by the agreement for 129 sale and they had not even obtained possession certificates, since obviously there was considerable dispute about the properties covered in the survey number, of which the plaint schedule properties formed a part. The trial court stating that in view of the delay in the plaintiffs approaching the court, the plaintiffs have not shown themselves to be ready and willing to perform their part of the contract and in the matter of exercise of discretion, specific performance should be refused to the plaintiffs since the defendants have, on the basis that the plaintiffs were not any more interested in purchasing the property, expended amounts for improvement of the property. Thus stating that the discretion has to be exercised against the plaintiffs, the trial court dismissed the suit for specific performance. But the trial court granted a decree for recovery of the advance of Rs 50,000 paid by the plaintiffs to the defendants at the time of entering into Ext. A-1 agreement along with interest at the rate of 6% per annum thereon from the date of suit till date of realisation. It is feeling aggrieved by the refusal to grant the plaintiffs a decree for specific performance that the plaintiffs have filed appeal before the High Court.130
5. In appeal, the High Court reversed the judgment and decree of the trial court and held that the suit was to be decreed in favour of the plaintiffs for specific performance as prayed for.
9. The High Court has found that the plaintiffs can be said to have been always ready and willing to perform their part of the contract from the inception of the contract to the date of the decree of the trial court, relying on the principles highlighted in Ardeshir H. Mama v. Flora Sassoon [(1927-28) 55 IA 360 : AIR 1928 PC 208] .
10. In Raineri v. Miles [1981 AC 1050 : (1980) 2 WLR 847 : (1980) 2 All ER 145 (HL)] (All ER at p. 155e-g) it was held as follows:
"In the instant case the date for completion was not expressed to be of the essence, and it has not been suggested (though I think it might possibly have been) that the surrounding circumstances nevertheless so rendered it. In that state of affairs the appellants submit that the law as it has stood ever since 1875 exculpated them from all liability for the foreseeable damage sustained by the respondents as a direct result of their failure to keep their word. My 131 Lords, were this indeed right the respondents would suffer a substantial injustice. The fact that time had not been declared to be of the essence does not mean that the express date for completion could be supplanted by the court's treating it as a mere 'target' date and, in effect, enabling the defaulting party to insert into the contractual provision some such words as '... or within a reasonable time thereafter'."
11. As rightly noted by the High Court, the plaintiffs have pleaded in terms of Section 16-C of the Specific Relief Act, 1963 (in short "the Act") that they have always been and are ready and willing to perform their part of the contract. Plaintiff 2 as PW 1 has also spoken about this fact. The case of the plaintiffs was that the defendants were not ready with the document as contemplated in Clause 2 of Ext. A-1 which resulted in the delay in the performance of the contract and in the plaintiffs seeking the performance of the contract by the defendants.
12. The High Court has noticed that the agreement in respect of the adjacent land was entered into much before the agreement in question. It has also been noticed by the High 132 Court that there was no impediment on the plaintiffs obtaining a sale deed in respect of adjacent land or that they apprehended it at any point of time that they were not going to get an assignment to the extent. The assignment in fact was obtained in respect of the adjacent land. The High Court also highlighted, in our opinion rightly, that the defendants had not performed their part of the contract under Ext. A-1 as they had not obtained requisite licence for planting rubber plant, except in case of Defendant 3. None of the other defendants had obtained the registration book for registration as a rubber estate with the Rubber Board as envisaged by Clause 7 of the agreement for sale.
13. DW 1 accepted that possession certificates could not be obtained by the defendants in view of the nature of the property involved in the context of the Kerala Land Reforms Act and the Kerala Private Forest (Vesting and Assignment) Act. The defendants never responded to the letter, Ext. A-2 issued by the plaintiffs seeking performance of the contract. No response was also sent to the letters, Exts. A-2 to A-10. Ext. A-6 was a letter sent through registered post which was refused. The 133 lawyer's notice, Ext. A-11 was also not responded to.
14. As regards the false plea of the defendants, the effect needs to be noted. It was pleaded that Defendant 3 had gone to the house of Plaintiff 2 in Alleppey prior to receiving any letter from the plaintiffs and had spoken that they had told him that they were not keen on enforcing the application under Ext. A-1. But when examined as DW 1, the said Defendant 3 admitted that he had never met the plaintiff as pleaded in the written statement and that he or any other defendant had never gone to Alleppey to meet Plaintiff 2 at his residence to speak about the performance of the contract. The plea stated in the written statement was abandoned in evidence. In Lourdu Mari David v. Louis Chinnaya Arogiaswamy [(1996) 5 SCC 589] it was noted that the conduct of the defendant cannot be ignored while weighing the question of exercise of discretion for decreeing or denying a decree for specific performance. The High Court has, after analysing the factual position, come to the conclusion that the defendants were really not ready to perform their obligation in terms of the contract and had taken a false plea in the written statement."
13465. The legal principles enunciated in the aforesaid decision when applied to the case on hand, this court is of the considered opinion that, when the suit of the plaintiffs earlier came to be decreed in part by ordering return of the advance money and when the matter was remanded to the Trial Court dismissing the suit of the plaintiff in toto is incorrect while maintaining the finding of the Trial Court that the plaintiffs failed to establish readiness and willingness to conclude the contract.
66. Therefore, to that extent, the appeal should succeed in ordering for refund of a sum of Rs.3,75,000/-
with reasonable interest as per the legal principles enunciated in the ruling of the Division Bench of this Court in the case of M/s. Wellasley Corporation Limited and another v. Smt. Kalavathi and others, reported in 2014 SCC OnLine KAR 6730.
13567. Having said thus, in view of the fact that the learned Trial Judge failed to record a finding as per the directions of this Court in RFA No.619/1996 as referred to supra, the impugned judgment also needs to be interfered with insofar as the said finding is concerned.
68. Mere filing of separate suits by the individual site purchasers did not absolve the responsibility of the learned Trial Judge to record a finding as directed by this Court in RFA No.619/1996 referred to supra.
Therefore, to that extent also, the impugned judgment needs to be set aside and the matter needs to be remanded to the Trial Court for recording a finding as directed in RFA No.619/1996. Accordingly, point No.1 is answered in the Negative, Point No.2 in the Affirmative and Point No.3 in the Partly affirmative.
69. REGARDING POINT NO.4: In view of finding of this court on Point Nos.1 to 3 as referred to supra, following order is passed:
136ORDER Appeals are allowed in part.
Plaintiffs/appellants are entitled for refund of Rs.3,75,000/- with interest at the rate of 12% per annum from defendant Nos.1 and 2 in respect of Ex.P.1 from the date of Ex.P1 till realisation.
Impugned judgment is set-aside only with regard to non recording of the finding by the Trial Court, as directed by this Court in RFA No.619/1996 and the matter is remitted to record a specific finding as directed in RFA No.619/1996.
Consequently, appeals filed by the individual site owners are also allowed and impugned judgments therein are set-aside and the matters are remitted to the Trial Court for fresh disposal in accordance with law, inasmuch as the finding that would be recorded in O.S.No.10709/1989 will have a bearing on the results of the suits filed by the individual site owners in 137 O.S.Nos.15141/2006, 15143/2010, 15140/2006 and 15142/2006.
Accordingly, O.S.No.10709/1989 and O.S.Nos.15141/2006, 15143/2010, 15140/2006 & 15142/2006 are remitted to the Trial Court.
In view of above, RFA Cross Objection No.32/2008 stands disposed of.
Parties to the suit i.e., defendants and individual site owners shall appear before the Trial Court positively on 21.10.2022 without further notice.
Trial Court may consider clubbing of O.S.No.10709/1989 and O.S.Nos.15141/2006, 15143/2010, 15140/2006, 15142/2006 for the sake of convenience and record a finding in O.S.No.10709/1989 and in O.S.Nos.15141/2006, 15143/2010, 15140/2006 15142/2006 and dispose of them in accordance with law as early as possible.138
Pending interlocutory applications consigned to records.
Counsel for cross objector is entitled to return of original documents after keeping a photo copy thereof.
Sd/-
JUDGE MR