Bangalore District Court
Sri.Moinuddin Hussain vs Smt.Seema Shariff on 20 October, 2018
Govt. of Karnataka
C.R.P 67
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGEMENTS IN SUITS.
IN THE COURT OF THE XXVI ADDL. CITY CIVIL
JUDGE AT MAYOHALL BANGALORE.
(CCH-20)
Present:
Sri.D.S.Vijaya Kumar, B.Sc., LL.B.,
XXVI Addl. City Civil and Sessions Judge
Dated this the 20th day of October, 2018
O.S.No.25901/2008
Plaintiffs: 1. Sri.Moinuddin Hussain
S/o. Sri.S.D. Hussaini
Aged about 55 years,
2. Smt.Tasneem Sultana
D/o. Syed Mohammed
Aged about 48 years
Both are residing in Flat
No.301, 3rd Floor,
Green House Apartments
No.38/1, Kemp Road,
Frazer Town,
Bangalore - 560 005.
[By Sri.M.D.R-Advocate]
Vs.
2 O.S.No.25901/2008
Defendants:- 1. Smt.Seema Shariff
W/o. Mr.Nayaz Ahmed
Shariff, Major,
2. Mr.Imran K.Shariff
Major,
Both are r/o. No.12, 2nd
Main Road, Jayamahal
Extension, Bangalore-46.
[By Sri.S-Asst.-Adv]
Date of Institution of 21.06.2008
suit:
Nature of the Suit (Suit Specific Performance
for Pronote, Suit for
Declaration and
Possession, Suit for
Injunction, etc.):
Date of 18.11.2011
Commencement of
recording of
evidence:
Date on which the 20.10.2018
Judgment was
pronounced:
Total Duration:
Years Months Days
10 03 29
(D.S.VIJAYA KUMAR)
XXVI Addl. City Civil and Sessions Judge
Mayo Hall, Bangalore.
3 O.S.No.25901/2008
JUDGMENT
This suit is filed by the plaintiffs against the defendants to execute the sale deed in favour of the plaintiffs in respect of the schedule property on the basis of the Deed dtd.22.06.2005. In default, to execute the sale deed in favour of the plaintiff through court and for court.
2. Brief facts of the case of the plaintiffs are as under:-
The plaintiff's were in search of the residential accommodation. The defendants informed that their flat is for sale. The said flat is the suit schedule property in the suit. After negotiation the defendant agreed to sell and the plaintiff has agreed to purchase for the sum of Rs.15,00,000/- (Rupees fifteen lakhs). The plaintiff has paid the entire amount of sale consideration 4 O.S.No.25901/2008 of Rs.15,00,000/- to the defendant on the date of agreement itself. The plaintiffs also have paid the brokerage commission of 1% of the value of the suit schedule property amount of Rs.15,000/- to the real estate agent. The defendants wanted three months time to get the original documents and accordingly at the instance of the defendants time was stipulated as three months for execution of the registration of the sale deed in favour of the plaintiff. The defendants for the reasons best known to them wanted a lease agreement to be executed instead of an agreement to sell and the plaintiff believing the words of the defendant did not object for the same and executed the lease agreement. However with an understanding that the document meant only agreement to sell. The said documents clearly speaks that the entire 5 O.S.No.25901/2008 sale consideration of Rupees fifteen lakhs is paid on the date of agreement and that there was no need for the plaintiff to pay a heavy amount of rupees fifteen lakhs and take the suit property for a period of three months. Such the said document is only a nominal lease agreement and the parties to the said agreement intended that it is an agreement to sell which is executed only at the request of the defendant. The defendant by way of part performance of the contract have put the plaintiff in possession of the suit schedule property and further under took to pay up to date maintenance charges to the association of the apartment, upto date taxes, electricity and to produce documents at the time of registration of the deed in favour of the plaintiffs. The plaintiffs were repeatedly requesting the defendants to perform their part 6 O.S.No.25901/2008 of contract. However defendants did not adhere to their promise have not handed over the original documents nor have executed the sale deed. The plaintiff were/are ready and willing to perform their part of contract and have already paid the entire sale consideration to the defendants. The defendants have been postponing the same only to cause loss to the plaintiff. Ultimately leaving the plaintiff with no other option has issued a legal notice dated 1/2/2006 calling upon the defendants to execute the registered sale deed in favour of the plaintiff. The said notice was served as the defendants have failed to comply the demands made in the notice nor have replied to the notice. The default and the breach is on the part of the defendants who have failed to perform their part of contract and have dodged the 7 O.S.No.25901/2008 same. Hence this suit is filed for the above said relief. It is submitted that the defendant No.1 has failed a frivolous suit for ejectment against the plaintiff in O.S.No.16913/2006 which is pending.
3. After service of suit summons the defendants appeared through their counsel and have filed the detailed written statement, as under:-
The Defendants have denied the case of the plaintiffs. As the first defendant was staying in the United States and the second defendant had no requirement they had no objection to let out on rent if terms were agreed. Originally this apartment had been in occupation of one Mr.Saleem Ahmed by paying Rs.8,00,000/- (Rupees eight lakhs) on no rent payable and the deemed interest on the deposit being treated as rent. He 8 O.S.No.25901/2008 left subsequently. At this time the plaintiff approached the defendant stating that their house was under construction. Their present landlord was asking them to vacate and requested the defendants to let out the present premises to them. It was in these circumstance that the plaintiff came to occupy the suit schedule property. There was no agreement between the plaintiff and the defendant to sell the suit schedule property. The assertion that there were negotiation for sale and the sale price was fixed for Rs.15,00,000/- (Rupees fifteen lakhs) and the plaintiff paid Rs.15,00,000/- as sale consideration is denied as false. The property is self purchased by these defendants in 2001 for total consideration of Rs.16,00,000/-. It is inconvincible the defendants would sell the property at a loss in the light of rising land prices 9 O.S.No.25901/2008 in Bangalore. The sum of Rs.15,00,000/- was received by the defendants as a deposit to allow the plaintiff to occupy the premises, the deemed interest being treated as a rent payable and paid.
These defendants never had any real estate agent acting for them. These defendants are not the parties to the receipt or transaction with the alleged real estate agent. They have not paid any brokerage commission to the agent. The document is fabricated one and created for the purpose of this case. It is denied that the defendant wanted three months time to get the original document and accordingly at the instance of the defendant No.3 notice time was stipulated as time for execution and registration of the deed of sale of the plaint schedule property in favour of the defendant is denied as false. These defendants and plaintiffs entered 10 O.S.No.25901/2008 into a document entitled Lease Agreement on 22/6/2005 which is clear. By virtue of this document plaintiffs were permitted to get the premises for a very short and specific period, namely 22/6/2005 to September 2005. There is nothing in this document whatsoever to indicate any intention on the part of these defendants to sell the plaint schedule property to the plaintiffs. The assertion that the lease agreement dated 22/6/2005 is only a nominal document is denied as false. There is no agreement to sell was entered into between the plaintiffs and the defendants and the lease deed dated 22/6/2005 is not an agreement to sell. Assertion that the defendants by way of part performance of agreement to sell put the plaintiff in possession is denied. The lease agreement dated 22/6/2005 not being a registered document there is a 11 O.S.No.25901/2008 statutory bar to the plaintiffs even setting up a plea that they are in possession of the plaint schedule property in part performance of an alleged agreement to sell. These defendants have at all times exercised all rights of ownership including payment of maintenance charges, taxes, electricity charges etc., As the plaintiffs had to vacate on 22/9/2005 a month in advance i.e., on 22/8/2005 the second defendant addressed a letter to the plaintiff calling upon them to vacate the plaint schedule property and deliver the vacant possession in terms of the agreement. The plaintiffs even after receiving the notice chose to remain silent. If at all there was an agreement to sell, they would have responded at that time itself. Thereafter the husband of the first defendant who is also power of attorney holder has requested the 12 O.S.No.25901/2008 plaintiff to vacate, to which request they paid no attention. On 12/11/2005 a legal notice was issued on behalf of the defendants inter-alia calling upon them to vacate and deliver the vacant possession. Notice were issued by the plaintiffs on 17/11/2005. There was no response given to this. These defendants have filed O.S.No. 16913/2006 seeking ejectment of the plaintiff from the plaint schedule property. In that suit, defendants have not made an application to implead Mr.Irfan Sherief as third defendant. This suit is filed with malafide intention to harass these defendants. On these grounds the defendants have prayed for dismissal of the suit of the plaintiffs.
4. On the basis of pleadings of both the parties, following Issues are framed :- 13 O.S.No.25901/2008
1. Whether plaintiffs prove the defendants agree to sell the suit schedule property for Rs.15,00,000/- by taking entire sale consideration?
2. Whether plaintiffs prove that instead of executing agreement to sell defendants executed lease agreement?
3. Whether plaintiffs prove that they have put in possession of the schedule property by way of part performance of contract?
4. Whether plaintiffs prove that they were always ready and willing to perform their part of contract?
5. Whether defendants prove that plaintiffs are tenants under them?14 O.S.No.25901/2008
6. Whether plaintiffs are entitled for relief sought for?
7. What order or decree?
5. In support of the plaintiffs case, first plaintiff got examined as PW 1 and also examined two witnesses as PWs.2 and 3 and got marked 2 documents as Exs.P.1 and P.2. In defence, the Power of Attorney Holder of the defendant No.1 is examined as DW.1 and got marked 13 documents as Exs.D.1 to D.13.
6. My answer to the above issues are as follows :-
ISSUE NO.1 :- In the negative
ISSUE NO.2 :- In the negative
ISSUE NO.3 :- In the negative
ISSUE NO.4 :- In the negative
ISSUE NO.5 :- In the affirmative
15 O.S.No.25901/2008
ISSUE NO.6 :- In the negative
ISSUE NO.7 :- As per final order for
the following reasons
REASONS
7. ISSUE NO.1:- Since facts and evidence
relating to these issues are common, for the sake of convenience and brevity they are taken together for discussion and determination.
8. Simple facts of the plaintiffs case are that the defendants agreed to sell the suit schedule Flat bearing No.301, measuring 1,934 sq. Feet of super built area including balconies having municipal no.38/1, Kemp Road, 3rd Floor, Green House Apartments, Frazer Town, Bengaluru, for a sum of Rs.15,00,000/-. The Plaintiffs paid brokerage commission of 1% of the value of the suit property amounting to Rs.15,00,000/- to the Real Estate Agent. The defendants wanted three 16 O.S.No.25901/2008 months time to get the original documents and accordingly in the Agreement three months time was stipulated for execution and registration of the Sale Deed in favour of the plaintiffs. The Defendants however for the reasons best known to them wanted a Lease Agreement to be executed instead of the Sale Agreement and the Plaintiffs believing the defendants did not take objections for the same and accordingly executed the Lease Agreement in respect of the said sale transaction. The understanding in between the parties was that it was the Agreement to sell. The plaintiffs paid entire sale consideration amount of Rs.15,00,000/- to the defendants on the date of the Agreement. But, a nominal Lease Agreement was executed by the defendants in that regard and defendants put the plaintiffs in possession of the suit schedule 17 O.S.No.25901/2008 property by way of part performance. The plaintiffs undertook to pay the maintenance charges to the Association of the Apartment and also upto date taxes, cess, electricity and to produce the documents at the time of registration of the Sale Deed. Thereafter, the defendants failed to perform their part of contract and did not execute the Sale Deed though the plaintiffs were/are always ready and willing to perform their part of contract. The plaintiffs caused a legal notice dtd.01.02.2006 and called upon the defendants to execute and register the Sale Deed. The Defendants received the Legal notice, but failed to comply with the same. Instead, the defendant no.1 filed a frivolous suit for ejectment in OS No.16913/2006. Hence, it is stated that the plaintiffs have filed this suit for the relief of specific performance. 18 O.S.No.25901/2008
9. In support of the suit claim, plaintiff no.1 has examined himself as PW.1 and reiterated the above facts in his affidavit filed for examination in chief. Further, the plaintiffs have examined PWs.2 and 3 as witnesses on their behalf to prove the disputed transaction to be a sale transaction. PWs.2 and 3 have deposed that the intention of the defendants was to sell the suit property for a sum of Rs.15,00,000/- and the defendants have received the entire sum of Rs.15,00,000/- on 22.06.2005.
10. The plaintiffs have produced the certified copy of suit Agreement dtd. 22.06.2005 as per Ex.P.1, which is captioned as 'Lease Agreement'. The plaintiffs have produced a Receipt executed by PW.2 as per Ex.P.2, in which it is stated that PW.2 has received the brokerage 19 O.S.No.25901/2008 of Rs.15,000/- from the Plaintiff No.2 towards purchase of the suit property.
11. On the other hand, the defendants contend that the plaintiffs approached them for taking the suit property on lease for a term of 3 months, stating that the plaintiffs house was under construction and they had three daughters and their present landlord was asking them to vacate and requested the defendants to let out the premises to them and after negotiations the suit property was leased for three months on payment of lease amount of Rs.15,00,000/-. The Defendants have contended that earlier one Salem Ahmed was in occupation of the suit premises by paying interest free/rent free deposit of Rs.8,00,000/-. Since he had got a job in the middle East, he vacated the suit premises and then the plaintiffs approached the 20 O.S.No.25901/2008 defendants. Accordingly, the suit premises was leased to the plaintiffs as per the lease agreement. But, the plaintiffs did not vacate the suit premises after expiry of 3 months of lease term and hence the defendant no.2 caused a legal notice on behalf of the defendant no.1, calling upon the plaintiffs to vacate the suit premises. The Plaintiffs did not vacate the suit premises inspite of due service of notice and earlier to expiry of the lease term also a notice had been sent to the plaintiffs, and since the plaintiffs failed to vacate the suit premises they filed a suit in OS No.16913/2006 against the plaintiffs for ejectment. After the said suit was filed and the defendants Power of Attorney holder adduced evidence and cross examination was completed, the plaintiffs herein have filed this suit for Specific performance on false 21 O.S.No.25901/2008 grounds. Thus the defendants have contended that the transaction in question is purely a lease transaction, but the plaintiffs have concocted Ex.P.2-Receipt and put forth a false and untenable plea that they had entered into a Sale Agreement with the defendants, and that at the instance of the defendants a nominal lease agreement was executed as per Ex.P.1.
12. On behalf of the defendants, their Power of Attorney holder has been examined as DW.1, who has reiterated Written statement averments in the affidavit filed for examination in chief. Further, the defendants have produced the sale deed of the suit premises in favour of the defendant no.1 as per Ex.D.1, Katha certificate as per Ex.D.2, Katha Extract as per Ex.D.3, Tax paid receipt as per Ex.D.4, katha uttara as per Ex.D.5, another tax paid receipt as per 22 O.S.No.25901/2008 Ex.D.6, General Power of Attorney executed by the defendant no.1 in favour of DW.1 as per Ex.D.7, lease agreement dtd.22.06.2005 as per Ex.D.8, notice issued to the plaintiffs on 22.08.2005 as per Ex.D.9, correspondence made with the postal authority as per Ex.D.10, intimation sent by the postal authorities as per Ex.D.11, another notice dtd.03.11.2005 as per Ex.D.12 and reply notice dtd. 01.02.2006 as per Ex.D.13.
13. I have perused the records and considered the rival contentions.
14. Of-course, the sale deed in favour of the defendant no.1 in respect of the suit property dtd.12.05.2006 is subsequent to the Lease agreement dtd.22.06.2005 in favour of the plaintiffs, the said fact has been admitted by 23 O.S.No.25901/2008 DW.1 during his cross-examination. But, PW.1/ Plaintiff No.1 has admitted during his cross examination that the possession of suit premises was given to them as per Ex.P.1 lease agreement dtd.22.06.2005. Ex.D.1 sale deed shows that earlier to the sale deed, there was an Agreement executed in favour of the defendant no.1 in respect of the suit property. Crucial fact to be decided in this case is whether the understanding between the plaintiffs and defendant no.1 was to purchase and sell the suit property for Rs.15,00,000/- and in that connection at the instance of the defendants a nominal lease agreement was executed as per Ex.P.1, instead of Sale Agreement or whether the transaction is a lease transaction. The defendants have of-course flatly denied the plaintiffs claim in that regard. As such, it is for the plaintiffs to 24 O.S.No.25901/2008 establish that the understanding between the parties was to purchase and sell the schedule property for Rs.15,00,000/- and accordingly, the entire sale consideration was paid by them to the defendant and in connection with the said sale transaction, at the instance of the defendants Ex.P.1-lease agreement was executed. When that is so, apart from PW.1's ipse-dixit evidence there is only evidence of PWs.2 and 3. PWs.2 and 3 have deposed that the intention of defendants was to sell the suit property for a sum of Rs.15,00,000/-. PW.3 is not a witness to Ex.P.2-receipt produced before the court. He is also not a witness to Ex.P.1 lease Agreement. In the cross examination of PW.3 his presence during the transaction of Ex.P.1 has been denied, by making a suggestion. Since PW.3 is not a witness to Ex.P.1 Agreement of lease, his 25 O.S.No.25901/2008 evidence contrary to the recitals of the written lease agreement is hard to believe. PW.2 is a witness to Ex.P.1-lease agreement and according to the plaintiffs he is a broker, who negotiated the transaction and the plaintiffs paid a sum of Rs.15,00,000/- to PW.1 towards the brokerage charges. Ex.P.2 receipt produced in that connection, of course states that he received Rs.15,000/- from Plaintiff No.2 towards the purchase of the suit property. But, the defendants are not parties to Ex.P.2 receipt. Therefore, there is no privity of contract between the defendants and the plaintiffs in respect of Ex.P.2 receipt. As such, Ex.P.2 does not bind the defendants in any manner. On the basis of Ex.P.2-Receipt obtained by PW.2 from the plaintiff no.2 to which the defendants are not parties, it is not possible to accept the plaintiff's 26 O.S.No.25901/2008 case that the transaction between the plaintiffs and defendants is a sale transaction. In fact, Ex.P.2 receipt has been obtained on 10.10.2005, though Ex.P.1-Lease Agreement is dtd. 22.06.2005.
15. The plaintiffs case that they entered into a Sale transaction with the defendant no.1 through her Power of Attorney holder, but the defendants wanted the lease agreement executed in that connection instead of sale agreement and therefore, the lease agreement was executed as per Ex.P.1, though the plaintiffs paid the entire sale consideration of Rs.15,00,000/-, is on the face is totally against the natural course of human conduct and therefore, does not inspire confidence. When the plaintiffs were paying a sum of Rs.15,00,000/- to the defendants, if the same was towards the entire 27 O.S.No.25901/2008 sale consideration, it was for the security of the plaintiffs who were making payment, that necessity of obtaining a document arose. As such, it was for the plaintiffs to have got a document as per their whims for the alleged sale transaction. However, quite contrary to the nature of human conduct, they claim that they paid the entire sale consideration of Rs.15,00,000/- to the defendants, but the defendants for the reasons best known to them asked for executing the Lease agreement and hence they executed the lease agreement. Ex.P.1 Lease agreement nowhere mentions about the defendants agreeing to sell the suit property to the plaintiffs. On the contrary, Ex.P.1 categorically describes the transaction as lease transaction and also lease term has been specifically mentioned as from 22.06.2005 to 28 O.S.No.25901/2008 22.09.2005. Not only Ex.P.1 recites the transaction as lease transaction, but also the same has been followed by notices dtd. 22.08.2005 and 03.11.2005 marked at Exs.D.9 and D.12 issued on behalf of the Defendant no.1, calling upon the plaintiffs to vacate the suit premises. When that is so, even though the defendant no.1 caused notices as per Exs.D.9 and D.12 as above, on 22.08.2005 and 03.11.2005 and followed by the same instituted a suit for ejectment in OS No.16913/2006, plaintiffs have kept mum till 21.06.2008 and after the defendants lead evidence in their suit in OS No.16913/2006, the plaintiffs have filed this suit by claiming that the transaction is sale transaction and the relief of specific performance should be granted against the defendants. Of-course, earlier to filing this suit, notice has been sent by the plaintiffs on 29 O.S.No.25901/2008 01.02.2006 as per Ex.D.13 therein claiming that the transaction was sale transaction. I am of opinion that in the light of Ex.P.1 lease Agreement and also evidence discussed above, the plaintiffs case that the defendants agreed to sell the suit property for Rs.15,00,000/- and received the entire sale consideration and insisted for execution of lease agreement by putting the plaintiffs in possession of the suit property by way of part performance of the contract, cannot be accepted. Consequently Issue nos.1 to 3 are answered in the negative.
16. Issue No.4:- Since the plaintiffs have failed to prove that the defendants have entered into the sale transaction with them by receiving the entire sale consideration amount of Rs.15,00,000/-, question of the plaintiffs being ready and willing to perform their part of 30 O.S.No.25901/2008 contract does not arise for consideration. Consequently, issue no.4 is answered in the negative.
17. Issue No.5:- The Defendants have claimed that the plaintiffs are tenants under them. Ex.P.1 produced by the plaintiffs itself show that the plaintiffs have entered into a lease agreement with the defendants in respect of the suit property for a term of 3 months and paid interest free refundable deposit of Rs.15,00,000/- to the Defendant through her Power of Attorney holder. Ex.P.1 has been substantiated by the evidence of DW.1. The Plaintiffs claim that the understanding between the parties was to sell the suit premises has not been proved by them. Whereas Ex.P.1 lease Agreement has been admitted by the plaintiffs which categorically shows that the transaction between the parties 31 O.S.No.25901/2008 is a lease transaction. On the basis of the oral testimony of PWs.1 to 3 which is contrary to the natural course of human conduct and also Ex.P.1 written lease agreement admittedly executed by the plaintiffs, it is not possible to accept their case that they were put in possession of the suit property in part performance of the contract. From the evidence of DW.1 and the admitted Lease agreement at Ex.P.1, it is clearly established that the plaintiffs are tenants under the Defendant no.1. Consequently, Issue No.5 is answered in the affirmative.
18. Issue No.6:-Since the plaintiffs have not proved the transaction between the Defendants and them in respect of the suit property to be a sale transaction, they are not entitled to the relief of specific performance as sought for. 32 O.S.No.25901/2008 Consequently, Issue NO.6 is answered in the negative.
19. Issue No.7:- In the result, I proceed to pass the following order :-
ORDER The Suit of the plaintiff is hereby dismissed with cost.
Draw decree accordingly.
--
(Dictated to the Stenographer, transcript thereof, is corrected and then pronounced by me in the open court on this the 20th day of October, 2018)
--
( D.S.VIJAYA KUMAR) XXVI Addl. City Civil & Sessions Judge Mayo Hall, Bangalore.33 O.S.No.25901/2008
ANNEXURE
1. List of witnesses examined for the plaintiffs:
P.W.1 Mr.Moinuddin Hussain P.W.2 Mr.Sageer Ahmed P.W.3 Mr.Syed Zahid Ali
2. List of witnesses examined for defendants:
D.W.1 Mr.Nayaz A Sheriff
3. List of documents exhibited for the plaintiffs:
Ex.P.1 Copy of lease agreement Ex.P.2 Receipt dt. 10/10/2005 Ex.P.2 (a) Signature of P.W.2
4. List of documents exhibited for defendants:
Ex.D.1 Copy of sale deed of an
apartment
Ex.D.2 Copy of Khatha Certificate
Ex.D.3 Copy of Khatha Extract
Ex.D.4 Copy of tax receipt
Ex.D.5 Copy of letter by BBMP
34 O.S.No.25901/2008
Ex.D.6 Copy of receipt
Ex.D.7 Copy of General Power of
Attorney
Ex.D.8 Copy of lease agreement
Ex.D.9 Copy of notice dt. 22/8/2005
Ex.D.10 Copy of letter dt. 27/9/2005
Ex.D.11 Copy of letter
Ex.D.12 Copy of letter dt. 3/11/2005
Ex.D.13 Copy of notice dt. 1/2/2006
( D.S.VIJAYA KUMAR)
XXVI Addl. City Civil & Sessions Judge Mayo Hall, Bangalore.