Bangalore District Court
Mr.Basavana Gowda vs M/S. Jain Heights & on 15 November, 2016
IN THE COURT OF THE XXX ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
DATED THIS THE 15TH DAY OF NOVEMBER 2016
-: PRESENT: -
SRI.M.G.KUDAVAKKALIGER, B,Com., LL.M.,
XXX Addl.City Civil Judge,
Bangalore.
O.S.NO.8005/2013
PLAINTIFF : Mr.Basavana Gowda,
Aged about 55 years,
R/a Shakti Nursing Home,
Taluru Road,
Parvati Nagar,
Bellary-583103.
(By Pleader Sri.Kumara, Adv.)
/VS/
DEFENDANT: M/s. Jain Heights &
Structures Private Ltd.
"SOLUS',7th Floor,1st Cross,
J.C.Road, Opp.Jain College,
Bengaluru. Rep.by its
Managing Director
Mr.Kishore Kumar.
(By Pleader M/s. A.C.C.
Associates, Adv.)
*****
2 O.S.No.8005/2013
DATE OF INSTITUTION 31-10-2013
NATURE OF THE SUIT (Suit on Suit for
Pronote, Suit for declaration and Recovery of
Possession, Suit for injunction, etc.) money.
DATE OF THE COMMENCEMENT
OF RECORDING OF THE EVIDENCE 16-1-2015
DATE ON WHICH THE JUDGEMENT
WAS PRONOUNCED 15-11-2016
TOTAL DURATION YEAR/S MONTH/S DAY/S
:
3 - 14
(M.G.KUDAVAKKALIGER),
XXX ADDL.CITY CIVIL JUDGE,
BANGALORE.
3 O.S.No.8005/2013
JUDGEMENT
1. The plaintiff has filed this suit for recovery of Rs.16,63,200/- with interest at the rate of 18% p.a. from the date of suit till realization.
2. The following are the brief and relevant facts leading to the case of the plaintiff:
That the defendant himself has represented to the plaintiff that he is the Joint Development Agreement holder with one Sri.Y.V.Parthasarathy and others in respect of the property bearing No.2, Old No.9/A, No.8/9, No.23, PID No.48-74-2, situated at 1st Cross, J.C.Road (also called as Mission Road), Municipal ward No.47, Bengaluru measuring east to west 140 ft. and north to south 250 ft. in all 35,000 sq.ft. and the defendant has taken up the construction of the commercial complex consisting of several office spaces having obtained the approved sanction plan and license from the authority concerned. The plaintiff after making surveillance of the area of the proposed construction had agreed to purchase 4 O.S.No.8005/2013 one of the commercial office spaces i.e. G-4, the space which had fallen to the share of the defendant along with other space under the Joint Development Agreement entered into with the owners of the total property in question. Then after negotiations, the plaintiff agreed to purchase commercial office space known as G-4 for a total sale consideration of Rs.72,00,000/- and a Tripartite Agreement dtd.15-9-2009 was entered into between the plaintiff, the defendant and the original owners of the said property. The plaintiff has paid the total sale consideration of Rs.72,00,000/- to the defendant by way of part payments through RTGS. After completion of the construction of the commercial complex, the plaintiff was supposed to occupy the same. At this juncture, the defendant offered a proposal to the plaintiff that defendant wanted to sell the commercial office space belonging to the plaintiff to some third party for a better price of Rs.1,15,98,240/-. As the proposal of the defendant yielded profit of Rs.43,98,240/-, plaintiff has 5 O.S.No.8005/2013 given consent for the same. Thereafter, the defendant has returned Rs.8,63,040/- to the plaintiff making very clear that the plaintiff need not to pay the amount towards BWSSB and BESCOM charges, Maintenance charges, Club Membership charges, legal fees, Car Parking charges, Service Tax and VAT charges, etc. which is supposed to be collected from the third party to whom, the said office space of the plaintiff is intended to be sold. Further, plaintiff has contended that defendant has paid a total sum of Rs.99,35,040/- (including Rs.8,63,040/-
i.e. the excess payment made by the plaintiff) leaving the balance of Rs.16,63,200/- to the plaintiff towards the sale of the said commercial space G-4 to some third parties.
Plaintiff further contended that defendant mailed a Commitment letter from his email account on 19-3-2013 which being self explanatory beckons the fact as to the payments received by the defendant from the plaintiff and in turn the part payments made by the defendant to the plaintiff and mode of payments. Though the commercial 6 O.S.No.8005/2013 office space No.G-4 was agreed to be sold, which is well descried in the Tripartite Agreement dtd.15-9-2009, the defendant has wriggled the description of the office space which was agreed to be sold as per the tripartite agreement by giving the wrong description of the same.
The defendant has eschewed the payment of the said amount. Therefore, plaintiff got issued a legal notice dtd.29-8-2013 calling upon the defendant to pay the balance amount of Rs.16,63,200/-. In spite of receipt of legal notice, the defendant has not paid the said amount.
Hence, the plaintiff has filed this suit for recovery of Rs.16,63,200/- with interest at the rate of 18% p.a.
3. After registration of the suit, suit summons was issued to the defendant. Pursuant to the suit summons, defendant has put appearance through their advocate and filed the written statement contending inter-alia that the suit filed by the plaintiff is neither maintainable in law or on facts since there is no such transactions narrated by the plaintiff. As admitted by the plaintiff, the defendant 7 O.S.No.8005/2013 alone cannot be a party to the above suit and therefore, the suit is liable to be dismissed in limine as non-joinder of necessary parties and mis-joinder of parties. The defendant contended that defendant on behalf of himself and one Y.V.Parthasarathy and others entered into an agreement to sell the commercial office space in unit No.H-04 for a total sale consideration of Rs.67,86,960/- only. The defendant and others have agreed to deposit Rs.8,63,040/- before the BWSSB charges, BESCOM charges, maintenance charges, legal fees, car parking charges ,service tax, vat, etc. though the plaintiff ought to have deposit those charges. Hence, the total sale consideration was Rs.67,86,960/- but not Rs.72,00,000/- as contended by the plaintiff. The defendant has denied that he has offered a proposal to the plaintiff to sell the commercial office space belonging to plaintiff for a sum of Rs.1,15,98,240/- to third parties. The defendant has denied the averments made at para No.8 of the written statement as false and baseless. The defendant has 8 O.S.No.8005/2013 further denied that he has withheld a sum of Rs.16,63,200/- which was agreed to be paid by the defendant. The defendant contended that out of the sale consideration, the defendant has paid Rs.99,35,040/- to the plaintiff by retaining a sum of Rs.16,63,200/- as admitted by the plaintiff in view of the fact that defendant was entitled to a sum of Rs.8,63,040/- which was admittedly deposited by him towards BWSSB, BESCOM charges, etc. as defendant has to pay Rs.8,00,160/- to the plaintiff. The plaintiff who bought the commercial office space for Rs.67,00,000/- and odd has now got a sum of rupees one Crore and odd and thereby he was benefited Rs.40 lakhs and odd in a short span of time. Therefore, the plaintiff has no right to make unnecessary allegations against the defendant which tarnish the image of the defendant but also cause irreparable damages which is liable to be compensated by the plaintiff. There is no cause of action for the plaintiff 9 O.S.No.8005/2013 to file this suit. Hence, defendant prays to dismiss the suit with exemplary costs.
4. On the basis of the rival contentions taken by the respective parties in the above pleadings of both the parties, the following issues have been framed for disposal of the case:
1. Whether plaintiff proves that the defendant agreed to sell the suit properties on 15/09/2009 for Rs.72,00,000/- and subsequently offered to sell the suit property to third party for Rs.1,15,98,240/-
and assured to give the profit of Rs.43,98,240/- by altering the terms of contract under agreement dated:15-09- 2009?
2. Whether he further proves that defendant failed to pay the balance amount inspite of request demands and issuance of legal notice dated:29/08/2013 and that defendant is liable to pay the claim amount of Rs.16,63,200/- with interest of 18% p.a., ?
3. What order or decree?
5. In order to substantiate the case made out by the plaintiff, plaintiff has entered into witness box and filed 10 O.S.No.8005/2013 his affidavit evidence as P.W.1 and got marked as many as 10 documents as per Ex.P.1 to P.10. In order to rebut the case of the plaintiff, One Gururaj K. the Head Liaisoning of the defendant company has entered into witness box as D.W.1 and got marked 2 documents as per Ex.D.1 & D.2. Case posted for arguments.
6. I have heard the arguments on both sides and perused the materials placed on record.
7. On the basis of the evidence both oral and documentary and other materials, I record my findings to the above issues as follows:
Issue No.1: In the affirmative.
Issue No.2: In the affirmative.
Issue No.3: As per the final order for the following:
REASONS
8. ISSUE NOS.1 & 2: These issue Nos.1 & 2 are interlinked, discussion on one issue has its direct bearing on the discussion on another issue. In view to avoid repetition of 11 O.S.No.8005/2013 discussion and facts of evidence, I am going to consider these issues jointly.
9. It is the brief case of the plaintiff that the defendant is the Joint Development Agreement holder with one Sri.Y.V.Parthasarathy and others in respect of the property bearing No.2, Old No.9/A, No.8/9, No.23, PID No.48-74-2, situated at 1st Cross, J.C.Road (also called as Mission Road), Municipal ward No.47, Bengaluru measuring east to west 140 ft. and north to south 250 ft. in all 35,000 sq.ft. and the defendant has taken up the construction of the commercial complex consisting of several office spaces having obtained the approved sanction plan and license from the authority concerned. The plaintiff after making surveillance of the area of the proposed construction had agreed to purchase one of the commercial office spaces i.e. G-4, the space which had fallen to the share of the defendant along with other space under the Joint Development Agreement entered into with the owners of the total property in question. 12 O.S.No.8005/2013 Then after negotiations, the plaintiff agreed to purchase commercial office space known as G-4 for a total sale consideration of Rs.72,00,000/- and a Tripartite Agreement dtd.15-9-2009 was entered into between the plaintiff, the defendant and the original owners of the said property. The plaintiff has paid the total sale consideration of Rs.72,00,000/- to the defendant by way of part payments through RTGS. The plaintiff further averred that after completion of the construction of the commercial complex, the plaintiff was supposed to occupy the same. At this juncture, the defendant offered a proposal to the plaintiff that defendant wanted to sell the commercial office space belonging to the plaintiff to some third party for a better price of Rs.1,15,98,240/-. Thereafter, the defendant has returned Rs.8,63,040/- to the plaintiff making very clear that the plaintiff need not to pay the amount towards BWSSB and BESCOM charges, Maintenance charges, Club Membership charges, legal fees, Car Parking charges, Service Tax and VAT charges, etc. 13 O.S.No.8005/2013 which is supposed to be collected from the third party to whom, the said office space of the plaintiff is intended to be sold. Further, plaintiff has contended that defendant has paid a total sum of Rs.99,35,040/- (including Rs.8,63,040/- i.e. the excess payment made by the plaintiff) leaving the balance of Rs.16,63,200/- to the plaintiff towards the sale of the said commercial space G- 4 to some third parties. Plaintiff further contended that defendant mailed a Commitment letter from his email account on 19-3-2013 which being self explanatory. Though the commercial office space No.G-4 was agreed to be sold, which is well descried in the Tripartite Agreement dtd.15- 9-2009. The defendant has eschewed the payment of the said amount. Therefore, plaintiff got issued a legal notice dtd.29-8-2013 calling upon the defendant to pay the balance amount of Rs.16,63,200/-. In spite of receipt of legal notice, the defendant has not paid the said amount. Hence, the plaintiff has filed this suit for recovery of Rs.16,63,200/- with interest at the rate of 18% p.a. 14 O.S.No.8005/2013 Pursuant to the suit summons, defendant has put appearance through their advocate and filed the written statement contending inter-alia that the suit filed by the plaintiff is neither maintainable in law or on facts since there is no such transactions narrated by the plaintiff. The suit is liable to be dismissed in limine as non-joinder of necessary parties and mis-joinder of parties. The defendant contended that defendant on behalf of himself and one Y.V.Parthasarathy and others entered into an agreement to sell the commercial office space in unit No.H-04 for a total sale consideration of Rs.67,86,960/- only. The defendant and others have agreed to deposit Rs.8,63,040/- before the BWSSB charges, BESCOM charges, maintenance charges, legal fees, car parking charges ,service tax, vat, etc. though the plaintiff ought to have deposit those charges. Hence, the total sale consideration was Rs.67,86,960/- but not Rs.72,00,000/- as contended by the plaintiff. The defendant has denied that he has offered a proposal to the plaintiff to sell the 15 O.S.No.8005/2013 commercial office space belonging to plaintiff for a sum of Rs.1,15,98,240/- to third parties. The defendant has denied the averments made at para No.8 of the written statement as false and baseless. The defendant has further denied that he has withheld a sum of Rs.16,63,200/- which was agreed to be paid by the defendant. The defendant contended that out of the sale consideration, the defendant has paid Rs.99,35,040/- to the plaintiff by retaining a sum of Rs.16,63,200/- as admitted by the plaintiff in view of the fact that defendant was entitled to a sum of Rs.8,63,040/- which was admittedly deposited by him towards BWSSB, BESCOM charges, etc. as defendant has to pay Rs.8,00,160/- to the plaintiff. The plaintiff who bought the commercial office space for Rs.67,00,000/- and odd has now got a sum of rupees one Crore and odd and thereby he was benefited Rs.40 lakhs and odd in a short span of time. Therefore, the plaintiff has no right to make unnecessary allegations against the defendant which 16 O.S.No.8005/2013 tarnish the image of the defendant but also cause irreparable damages which is liable to be compensated by the plaintiff. There is no cause of action for the plaintiff to file this suit. Hence, defendant prays to dismiss the suit with exemplary costs.
10. In order to substantiate the case made out by the plaintiff, he has entered into the witness box filed his affidavit evidence as P.W.1 and marked as many as 10 documents as per Ex.P.1 to P.10. P.W.1 deposed on par with the plaint averments and deposed that the plaintiff has purchased the one of the office space in G-4 in the building of which the defendant has taken up construction of the commercial complex consisting of several office spaces in the immovable property bearing No.2, old No.9/8 No.8/9, No.23, PID No.48-74-2 situated at 1st cross, J.C.Road, Municipal Ward No.47, Bengaluru for a sale consideration of Rs.72 lakhs which includes Rs.8,63,040/- payable to the BWSSB, BESCOM, maintenance charges, Club Membership charges, Car parking charges, service tax 17 O.S.No.8005/2013 and vat, etc. under the tripartite agreement dtd.15-9- 2009. The plaintiff further deposed that such being the situation, the defendant offered a proposal to the plaintiff that he would sell the office space agreed to be sold to the plaintiff to some other third party for better price and agreed to pay Rs.1,15,98,240/- to the plaintiff. The plaintiff agreed and as such, the tripartite agreement dtd.15-9-2009 stood altered in the way stated supra. Out of Rs.72,00,000/- the defendant has totally paid Rs.99,35,040/-(Rs.8,63,040/- + Rs.90,72,000/-) step by step through RTGS to the account of the plaintiff and his wife and withhold the balance amount of Rs.16,63,200/-. The defendant has failed to pay the said amount to plaintiff. Hence. Plaintiff got issued legal notice and filed this suit for the recovery of the said amount with interest and damages. On careful perusal of the entire pleadings, it is quite clear that the defendant has denied all the averments made in the plaint para No.3 to 12. However, the defendant in its written statement has admitted the 18 O.S.No.8005/2013 execution of the tripartite agreement dtd.15-9-2009 between themselves, plaintiff and with the owners of the said property. The defendant has further admitted that the plaintiff had paid total sale consideration of Rs.72,00,000/-(Rs.67,86,960/- + Rs.8,63,040/-). As per the request and submission of the plaintiff, defendant was successful in finding out the prospective purchaser, who has agreed to purchase the commercial office space which was agreed to have been purchased by the plaintiff has been sold in favour of Sri.Krishnagopal Agarwal for a valuable sale consideration, out of the said sale consideration, defendant has paid a sum of Rs.99,35,040/- to the plaintiff by retaining the sum of Rs.16,63,200/- as admitted by the plaintiff, contending that defendant was entitled for a sum of Rs.8,63,040/-, which was admittedly deposited by the plaintiff towards charges of BESCOM, BWSSB, service tax, etc. and further contended that there was a settlement between the plaintiff and defendant along with the brother-in-law of the plaintiff 19 O.S.No.8005/2013 Sri.P.V.Reddy that the defendant after deducting the amount of Rs.8,63,040/-, defendant has to pay a sum of Rs.8,00,160/- to the plaintiff and accordingly when the defendant went to pay the said amount through cheque, the plaintiff refused to receive the same without any reason went out without attaching the sanctity to the said meeting. Thus, the ending of the transaction amicably by the defendant ended in futility. For better appreciation, I cull out the portion of the paragraph No.8 of the written statement which runs as under:
"8. ..........Finally the defendant was successful in finding out a good prospective purchaser who has agreed to purchase the commercial office space which was agreed t have been purchased by the plaintiff and sold the said office space in question in favour of Sri.Krishna Gopal Agarwal for a valuable sale consideration amount. From and out of the said sale consideration the defendant paid a sum of Rs.99,35,040/- to the plaintiff by retaining a sum of Rs.16,63,200/- as admitted by the plaintiff in view of the fact that the defendant was entitled to a sum of Rs.8,63,040/- which was admittedly deposited by him since the plaintiff started disputing certain payments made by the defendant. ........After issuance of the notice, the plaintiff along with his brother-in-law Sri.V.P.Reddy contacted the defendant and at that juncture the plaintiff, the defendant and other arrived to a settlement to the effect that the defendant after deducting the amount of Rs.8,63,040/- deposited by him towards the deposits in BWSSB charges, etc. the defendant has to pay a sum of Rs.8,00,160/- to the plaintiff and accordingly, when the defendant went to pay the said amount through cheque, the plaintiff refused to receive the same for the reasons best 20 O.S.No.8005/2013 known to him and without any reasons whatsoever went out without attaching sanctity to the said meeting though his own brother-in-law tried to end the transaction amicably. Thus, the ending of the transaction amicably by the defendant ended in futility. From the above fact, it is clear that the defendant has got no intention of misappropriating some bodies' money much less the plaintiff's money as contended by the plaintiff. Actually, the defendant is not in any way benefited in the transaction of the plaintiff selling his property/commercial office space and therefore, the question of the defendant misappropriating the plaintiff's money does not arise at all. In the transaction in question it is the plaintiff who is benefited to the larger extent. The plaintiff who bought the commercial office space for a sum of Rs.67,00,000/- and odd has now got a sum of rupees one Crore and odd and thereby he was benefited in a sum of rupees forty lakhs and odd in a short span of time. Therefore, the plaintiff has no right to make unnecessary allegations against the defendant knowing fully well that such allegations not only tarnish the image of the defendant; but also cause irreparable damages which is liable to be compensated by the plaintiff."
11. During the course of the cross-examination, D.W.1 has also admitted with regard to the pleadings in their written statement at para No.8 which runs as under:
"£ÀªÀÄä ¥Àwæ ªÁzÀ ¥ÀvÀæ ¥ÀÄl 8 gÀ°è 16,63,200 gÀÆ. UÀ¼À£ÀÄß ElÄÖPÉÆAqÀÄ 99,37,040 gÀÆ. UÀ¼£À ÀÄß ªÁ¥À¸ÀÄì PÉÆnÖzÃÉÝ ªÉ JAzÀÄ £ÀªÀiÆ¢¹zÀÄÝ ¸ÀjAiÀiÁVzÉ. 8,63,040 gÀÆ. EzÀÄ ¨É¸ÁÌA ZÁeïð¸ï ªÉÄAl£É£À ïì ZÁdð¸ï °ÃUÀ¯ï ¦ü¸ï PÁgï ¥ÁQðAUï ZÁdð¸ï ¸À«ð¸ï mÁåPïì ªÁåmï ZÁdð¸ï JAzÀÄ ªÀÄÄjzÀÄPÉƼÀ¯ î ÁVzÉ JAzÀgÉ ¸Àj. ¨É¸ÁÌA ZÁeïð¸ï ªÉÄAl£É£À ïì ZÁdð¸ï °ÃUÀ¯ï ¦ü¸ï PÁgï ¥ÁQðAUï ZÁdð¸ï ¸À«ð¸ï mÁåPïì ªÁåmï ZÁdð¸ï ªÉÄA§gï ²¥sï ZÁdð¸ï EªÀÅUÀ¼£À ÀÄß ¸ÁªÀiÁ£ÀåªÁV AiÀiÁgÀÄ EªÀiÁgÀv£ÀÛ ÀÄß Rjâ¹ ªÁ¸À G½¢gÀvPÀ AÀÌ vÀ ªÀåQÛUÀ½AzÀ ªÀiÁvÀæ ¥ÀqÉzÀÄPÉƼÀ¯ î ÁUÀÄvÀÛzÉ JAzÀgÉ ¸Àj. F PÉù£À ªÁ¢ zÁªÁ ¸Àév£ÀÛ ÀÄß £À«ÄäAzÀ PÀAæ iÀÄ ¥ÀvÀæ ªÀiÁr¹PÉÆAqÀÄ ¸Áé¢Ãü £À ¥ÀqAÉ iÀÄĪÀÅzÀQAÌ vÀ ¥ÀǪÀðzÀ°Aè iÉÄà ¥Àwæ ªÁ¢ ªÀÄÄSÁAvÀgÀ ¨ÉÃgÉAiÀĪÀjUÉ ªÀiÁgÁl ªÀiÁrzÁÝgÉ JAzÀgÉ ¸Àj."21 O.S.No.8005/2013
12. Added to this, the defendant has sent email communications through the email I.D. of the Kishore Kumar Jain at Jain Heights.com. admitting the sale transaction of the office space of the plaintiff to the third party for a total sale consideration of Rs.1,15,98,240/- and details of the rate per sq.ft., total area and the payment made to the plaintiff through RTGS, cheque and the balance amount to be paid through cheque, amount to be paid through others. The said email copy along with enclosures has been produced before this Court and marked as per Ex.P.9 and P.10 without any objections of the defendant. During the course of cross-examination, D.W.1 has also admitted the same. For better appreciation I cull out the same which runs as under.
"¢B19-3-2013 gÀ CªÀ¢Aü iÀÄ°è ¥ÀæwªÁ¢AiÀÄgÀÄ JµÀÄÖ EªÉÄïï LrUÀ¼£À ÀÄß ºÉÆA¢zÀgÝ ÀÄ JA§ ¥À±æ ÉßUÉ ¥Àwæ ªÁ¢AiÀÄgÀÄ ¸ÀĪÀiÁgÀÄ EªÉÄïï LrUÀ¼£À ÀÄß ºÉÆA¢zÀgÝ ÀÄ JAzÀÄ GvÀgÛ À ¤ÃrgÀÄvÁÛg.É ........... ¥Àwæ ªÁ¢ ¸ÀA¸ÉAÜ iÀÄ J¯Áè ªÀåªÀºÁgÀ ªÀÄvÀÄÛ ªÀ»ªÁlÄUÀ¼£À ÀÄß CªÀgÃÉ £ÉÆÃrPÉƼÀÄvî ÁÛgÉ JAzÀgÉ ¸Àj. 2013 gÀ ªÉüÉUÉ Q±ÉÆÃgïPÀĪÀiÁgïgÀªgÀ ÀÄ JµÀÄÖ EªÉÄïï LrUÀ¼£À ÀÄß ºÉÆA¢zÀgÝ ÀÄ JAzÀgÉ £À£ÀUÉ £É£À¦®è.è ¤.¦.9 gÀ°è Q±ÉÆÃgïeÉÊ£ï Jmï eÉÊ£ï ºÉÊmïì qÁmï PÁªÀiï EzÀÄ Q±ÉÉÆÃgïPÀĪÀiÁgïgÀªjÀ UÉ ¸ÀA§A¢ü¹zÀ EªÉÄïï Lr JAzÀgÉ ¸Àj. ¤.¦.10 gÀ°è 99,35,040 gÀÆ. ZÉPï ªÀÄÄSÁAvÀgÀ £Émï ¥sAÉ iÀħ¯ï ZÉPïì JAzÀÄ £ÀªÀÄÆ¢¹zÁÝgÉ JAzÀgÉ ¸Àj. ¤.¦.10 gÀ°è CªÀiËAmï lÄ © ¥sÉqï 22 O.S.No.8005/2013 vÉÆÃæ CzÀgïì JA§ PÁ®ªÀiï£À°è 16,63,200 gÀÆ. JAzÀÄ £ÀªÀÄÆzÁVzÉ JAzÀgÉ ¸Àj."
13. On careful perusal of the above culled out pleadings and the admissions given by the D.W.1 in his cross-examination, it is quite clear that there is a sale transaction of the sale of the office space to Sri.Krishnagopal Agarwal which alleged to have been agreed to be sold to the plaintiff by the defendant vide tripartite agreement dtd.15-9-2009 for a higher price of Rs.1,15,98,240/- out of which defendant has paid Rs.99,35,040/- to the plaintiff and his wife through RTGS including Rs.8,63,040/- payable by the occupant of the office space towards the BESCOM charges, BWSSB, car parking charges, service tax, vat, etc. and defendant is still liable to pay Rs.16,63,200/- to the plaintiff.
14. No doubt, on careful perusal of the evidence deposed by D.W.1 in his examination-in-chief, he deposed various other things contradictory to the pleadings to deny the claim made by the plaintiff and ultimately admitted to pay 23 O.S.No.8005/2013 Rs.8,00,160/-. At this juncture, it is to be noted that it is the well established principles of law of evidence that any amount of evidence without the pleading cannot be looked into. During the course of cross-examination, D.W.1 himself has admitted as under:
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15. On careful perusal of the entire materials before this Court, it is quite clear that there is a sale transaction of the sale of the office space to Sri.Krishna Gopal Agarwal which alleged to have been agreed to be sold to the plaintiff by the defendant vide tripartite agreement dtd.15-9-2009 for a higher price of Rs.1,15,98,240/- out 24 O.S.No.8005/2013 of which defendant has paid Rs.99,35,040/- to the plaintiff and his wife through RTGS including Rs.8,63,040/- payable by the occupant of the office space towards the BESCOM charges, BWSSB, car parking charges, service tax, vat, etc. and defendant is still liable to pay Rs.16,63,200/- to the plaintiff. The plaintiff has proved his case with all preponderance of probabilities and defendant has utterly failed to prove its case. The case of the defendant in defence is an after thought. The claim of the defendant with regard to the deduction of Rs.8,63,040/- is not justified one as it pertains to payment towards BWSSB, BESCOM Charges, maintenance charges, service tax, vat tax, parking charges, etc. is to be collected from the occupants only. In the instant case, the plaintiff is not an occupant and very defendant himself has admitted with regard to the refund of Rs.8,63,040/- which was also included in refund amount of Rs.99,35,040/-. Therefore, the defendant has utterly failed to prove its case. Hence, I answer issue Nos.1 and 2 in the affirmative. 25 O.S.No.8005/2013
16. In the instant case, the plaintiff has claimed interest at 18% p.a. on the outstanding amount, but the interest claimed by the plaintiff is on the higher side. However, this Court is empowered to award future rate of interest from the date of filing of the suit till realization of the decreetal amount as per the prevailing rates of interest on the bank deposits under various nationalized banks as per the rules and regulations made by the Reserve Bank of India. Under the Interest Act, the party is entitled to claim interest at the 'current rate of interest' which expression is defined in Clause(b) of Sec.2 of the Interest Act, it means that, the highest of the maximum rates at which interest may be paid on different classes of deposits by different classes of schedule banks in accordance with the direction given or issued to the banking companies generally by the Reserve Bank of India under the Banking Regulation Act, 1949. Therefore, if interest at the rate of 12% p.a. on the outstanding amount from the date of filing of the suit till the realization of 26 O.S.No.8005/2013 the entire decreetal amount is awarded it would meet the ends of justice. Hence, this Court is of the opinion that plaintiff is entitled to interest at the rate of 12% p.a. from the date of suit till realization on outstanding amount of Rs.16,63,200/-.
17. ISSUE No.3: In view of the discussions and reasons stated above and my findings to the above issues, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby decreed with costs.
The plaintiff is entitled to recover a sum of Rs.16,63,200/- (Rupees Sixteen Lakhs Sixty Three Thousand Two Hundred only) with interest at the rate of 12% p.a. from the date of suit till realization of the entire decreetal amount from the defendant.27 O.S.No.8005/2013
Defendant is hereby directed to pay the decreetal amount within two months from the date of this judgment.
Draw decree accordingly.
(Dictated to the Judgment Writer on computer, transcribed thereof, corrected, signed and then pronounced by me in the open Court on this THE 15th DAY OF NOVEMBER 2016).
(M.G.KUDAVAKKALIGER).
XXX ADDL.CITY CIVIL JUDGE, BANGALORE.
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF/S:
P.W.1 : Mr.Basavanna Gowda.
WITNESSES EXAMINED FOR THE DEFENDANTS/S:
D.W.1 : Gururaj.K. DOCUMENTS MARKED FOR THE PLAINTIFF/S: Ex.P.1 : Agreement to sell. Ex.P.2 : Construction agreement. Ex.P.3 : Copy of legal notice. Ex.P.4 : Postal receipt. Ex.P.5 : Acknowledgement. Ex.P.6 : statement. Ex.P.7 : Plan. Ex.P.8 : Certificate U/S.65 of Evidence Act. 28 O.S.No.8005/2013 Ex.P.9 : Email. Ex.P.10 : Email. DOCUMENTS MARKED FOR THE DEFENDANTS/S: Ex.D.1 : CC of Sale Deed dtd.21-6-2013. Ex.D.2 : CC of Sale Deed dtd.24-2-2014. (M.G.KUDAVAKKALIGER), XXX ADDL.CITY CIVIL JUDGE, BANGALORE.