Bangalore District Court
Sri Venkatesh R S/O H. Ramalchandra Rao vs ) Sri Ashish P.K S/O C.P. Saseendram on 10 April, 2023
KABC0A0030412004
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Sri S. Sudindranath, LL.M., M.B.L.,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
OS No.16749/2004
Dated this 10th day of April 2023
Plaintiff:- Sri Venkatesh R S/o H. Ramalchandra Rao,
Aged about 34 years, C/o Times of India,
No.40/1, SNB towers, M.G. Road,
Bengaluru-01.
(Rep. By - Sri N.S.L, Advocate)
V/S
Defendants:- 1) Sri Ashish P.K S/o C.P. Saseendram,
Aged about 26 years,
R/at No.7/27, II Left, 24th Cross,
Ejipura Main Road, P.O. Vivek Nagar,
Bengaluru-47.
2) Smt. Anandi M D/o Late N. Krishnan,
Aged about 34 years,
R/at No.29, III Cross,
Amarjyothi Layout, Sanjaynagar,
Bengaluru.
3) Sri Bindish S S/o K. Suresh Babu,
Aged about 33 years,
C/o UTI Bank, No.9, M.G. Road,
Bengaluru.
2 OS.No.16749/2004
Judgment
KABC0A0030412004
4) Sri A.M. Dheeraj S/o A.K. Bhaskaran,
Aged abut 33 years,
R/at No.18, Winstan Villa,
24th Cross, Ejipura, Bengaluru.
5) Sri Melvin Xavier Mathews,
S/o Sri P.C. Mathew,
Aged about 27 years,
R/at No.4/1, 4th Cross,
Madiwala New Extn., Madiwala,
Bengaluru-68.
6) Smt. Priya Krishnamurthy,
D/o Sri Krishnamurthy,
Aged about 43 years,
R/at No.A4-427, 5th Main,
BDA Quarters, Domlur,
Bengaluru-71.
7) Sri Sandeep K.P
S/o Sri K.N. Purushothaman,
Aged about 27 years,
R/at No.4, Ejipura Main Road,
9th Cross, Viveknagar,
Bengaluru-47.
8) Sri Suresh N S/o Sri Natarajan S,
Aged about 26 years,
R/at No.719, BDA Qtrs,
6th Main, Domlur, 2nd State,
3rd Phase, Bengaluru-71.
9) Sri K.V. Sarathchandran,
Aged about 65 years,
S/o Late Sri K.V. Mukundan,
R/at No.22, 5th Cross,
3 OS.No.16749/2004
Judgment
KABC0A0030412004
(Old No.45, Masjid Street),
Kodihalli, Bengaluru.
10) Sri Binoy P S/o Balakrishnan,
Aged about 47 years,
R/a No.47, 27th Cross,
VGS Layout, Ejipura Main Road,
Bengaluru-47.
11) Sri Binish P S/o Balakrishnan,
Aged about 45 years,
R/a 47, 27th Cross,
VGS Layout, Ejipura Main Road,
Bengaluru-47.
[
(D1, 3 to 9 by - Sri V.A.A, D2 by - Sri Y.N, D10 & 11
by - Sri V.H, Advocates)
Date of Institution of the suit 16/10/2004
Nature of the (Suit or pro-note, Injunction
suit for declaration and
possession, suit for injunction,
etc.)
Date of the commencement of 12/06/2014
recording of the Evidence.
Date on which the Judgment 10/04/2023
was pronounced.
Year/s Month/s Day/s
Total duration -18- -05- -24-
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
MAYOHALL UNIT: BENGALURU.
4 OS.No.16749/2004
Judgment
KABC0A0030412004
:: JUDGMENT ::
This is a suit filed by the sole plaintiff initially against defendant No. 1 to 9 and defendant No. 10 and 11 were subsequently implemented and initially the suit was filed for bare injunction and subsequently the relief of specific performance was incorporated into the suit.
2. The plaint averments in brief are that, the plaintiff along with defendant No. 1 to 8 entered into sale agreement with defendant No. 9 to purchase the suit schedule property under the sale agreement dated 9-7-2004 under which it was agreed that plaintiff and defendant No. 1 to 8 shall each purchase 1/9th share in the suit schedule property and the total sale consideration fixed was Rs.56,87,505 and each of the purchasers paid advance amount of Rs.1,00,000 and each purchaser had to pay the balance amount of Rs.5,31,945 at the time of registration of the sale deed. It is pleaded that plaintiff was instrumental in getting the sale agreement 5 OS.No.16749/2004 Judgment KABC0A0030412004 registered and after entering into the sale agreement also plaintiff had taken certain initiatives such as getting paper publication in Deccan Herald and contacting the architect and getting the plans and sketches prepared. After the sale agreement defendant No. 1 started brainwashing the other defendants and started negotiation for purchase of the property behind the back of the plaintiff. Pleading that the defendant No. 1 to 8 are trying to purchase the suit schedule property by themselves by leaving the plaintiff, the suit was initially filed for injunction to restrain the defendants from changing or altering the nature of the suit schedule property. Initially, the suit was filed only against defendant No. 1 to 9.
3. Thereafter on 9-1-2007, the plaintiff filed amendment application to incorporate the pleadings that after filing of the suit, he has come to know that behind his back, the defendant No. 9 has executed 9 sale deeds dated 23-9-2004 in favour of defendant No. 1, 3 to 8 and defendant No. 10 & 11 selling 1/9th share each to the said defendants in the suit 6 OS.No.16749/2004 Judgment KABC0A0030412004 schedule property and amendment was also sought to incorporate the additional prayer for specific performance of the sale agreement dated 9-7-2004 to direct the defendant No. 9 to execute sale deed in respect of undivided 1/9th share in the suit schedule property in favour of the plaintiff by receiving the balance sale consideration amount and to put plaintiff in vacant possession of his 1/9th share. After the said amendment was allowed, the plaintiff filed another application to implead defendant No. 10 & 11 on the ground that they have purchased 1/9th share each in the suit schedule property which also came to be allowed. The latest amendment was by filing application on 14-3-2023 to incorporate the prayer to direct defendant No. 1, 3 to 8 , 10 & 11 to join defendant No. 9 in executing the sale deed in respect of undivided 1/9th share in favour of the plaintiff. Therefore, after the amendments, the suit for bare injunction has now been converted into suit with the following prayers; 7 OS.No.16749/2004
Judgment KABC0A0030412004
- Pass judgment and decree against defendant No. 9 for specific performance of the agreement dated 9- 7-2004 to execute the sale deed in favour of the plaintiff and directing defendant No. 1, 3 to 8,10 & 11 to join defendant 9 to execute and register the sale deed in respect of undivided 1/9th share in the suit schedule property by receiving the balance sale consideration.
- On failure of defendant No. 9, 1, 3 to 8 and 10 & 11 to execute the sale deed in terms of the agreement of sale dated 9-7-2004, this Honourable Court be pleased to execute the sale deed through ministerial officers of the court.
- Consequently, direct the defendant No. 1, 3 to 11 to put the plaintiff in vacant physical possession of undivided 1/9th share in the suit schedule property.
4. The suit schedule property is described as follows;
All that piece and parcel of immovable property on site No. 22, old No. 45, 8th B cross, 5th cross as per corporation name board, Kodihalli, Bangalore measuring 65 x 70 feet and bounded as follows. 8 OS.No.16749/2004
Judgment KABC0A0030412004 East by Chikkabyrappa's land, West by 15 feet road, North by Balraj's plot, South by Lakshmipapa and Narayanappa's plot.
5. The defendant No. 1, 3 to 8 filed written statement denying the plaint averments. Although they admitted that initially plaintiff and defendant No. 1, 3 to 8 entered into sale agreement with defendant No. 9 dated 9-7-2004, they contended that, time was the essence of the contract and the contract had to be completed within 45 days and plaintiff and defendant No. 2 themselves voluntarily withdrew from the transaction since they were unable to arrange the funds since they were unable to get the bank loan.
6. The defendant No. 2 filed written statement admitting the sale agreement dated 9-7-2004 but pleaded that after the agreement was entered into, the attitude of defendant No. 1 changed and he started negotiating with defendant No. 9 independently against interest of defendant No. 2 and seeing 9 OS.No.16749/2004 Judgment KABC0A0030412004 the above attitude defendant No. 2 has withdrawn from the transaction and has received back her advance amount of Rs. 1 lakh.
7. The defendant No. 9 filed memo adopting the written statement of defendant No. 1, 3 to 8. The defendant No. 10 and 11 after their impleadment have not filed written statement.
8. On the basis of the above rival pleadings, the following issues were framed :
1) Whether the plaintiff proves that 9th defendant has entered into agreement with plaintiff and defendant No. 1 to 8 on 9-7-
2004 agreeing to sell the suit schedule property to them jointly for Rs. 56,87,505 and received advance consideration of Rs. 9 lakhs?
2) Whether the plaintiff proves that he paid Rs. 1 lakh consideration towards his 1/9th 10 OS.No.16749/2004 Judgment KABC0A0030412004 share to be purchased under the agreement from defendant No. 9?
3) Whether plaintiff proves that after the said agreement he was always ready and willing to jointly purchase suit schedule property with defendant No. 1 to 8 by paying his share of consideration amount to the 9 th defendant?
4) Whether plaintiff proves that defendant No. 1 and 3 to 9 colluding among themselves got registered sale deed from 9 th defendant illegally excluding the plaintiff?
5) Whether plaintiff is entitled for decree of specific performance directing the 9th defendant to execute sale deed of suit property in respect of 1/9th share in favor of this plaintiff?
6) Whether plaintiff is entitled to get recovery of possession of 1/9th share from the defendants?
11 OS.No.16749/2004
Judgment KABC0A0030412004
7) Whether defendant 1 and 3 to 8 prove that subsequent to the agreement dated 9-7- 2004, defendant No. 2 and plaintiff were not willing to purchase the property in terms of the agreement, therefore, new adjustment is made by replacing the other persons in place of plaintiff and second defendant thereby got registered the sale deed from 9th defendant and thus agreement of plaintiff dated 9-7-2004 is not executable ?
8) What order or decree?
9. In the trial the plaintiff examined himself as PW 1 and got marked Ex. P1 which is the copy of the sale agreement dated 9-7-2004. On behalf of the defendants the defendant No. 2 examined herself as DW1 but she did not mark any documents. The defendant No. 1 on behalf of the contesting defendants namely himself and defendant No. 3 to 8 was examined as DW2 and got marked Ex. D1 to D6. 12 OS.No.16749/2004
Judgment KABC0A0030412004
10. Thereafter I have heard the arguments of both sides and perused the records of the case.
11. My answer to the issues are as follows:
Issue No. 1 And 2 : In The Affirmative Issue No. 3 To 6 : In The Negative Issue No. 7 : As Per Finding Issue No. 8 : As Per Final Order For The Following :: REASONS ::
Issue No. 1 to 7
12. These issues require common discussion and hence considered together.
13. The case of the plaintiff is that, the plaintiff along with defendant No. 1 to 8 entered into sale agreement with defendant No. 9 to purchase the suit schedule property under the sale agreement dated 9-7-2004 under which it was agreed 13 OS.No.16749/2004 Judgment KABC0A0030412004 that plaintiff and defendant No. 1 to 8 shall each purchase 1/9th share in the suit schedule property and the total sale consideration fixed was Rs.56,87,505 and each of the purchasers paid advance amount of Rs.1,00,000 and each purchaser had to pay the balance amount of Rs.5,31,945 at the time of registration of the sale deed. It is pleaded that plaintiff was instrumental in getting the sale agreement registered and after entering into the sale agreement also plaintiff had taken certain initiatives such as getting paper publication in Deccan Herald and contacting the architect and getting the plans and sketches prepared. After the sale agreement defendant No. 1 started brainwashing the other defendants and started negotiation for purchase of the property behind the back of the plaintiff. Pleading that the defendant No. 1 to 8 are trying to purchase the suit schedule property by themselves by leaving the plaintiff, the suit was initially filed for injunction to restrain the defendants from 14 OS.No.16749/2004 Judgment KABC0A0030412004 changing or altering the nature of the suit schedule property. Initially, the suit was filed only against defendant No. 1 to 9.
14. Thereafter on 9-1-2007, the plaintiff filed amendment application to incorporate the pleadings that after filing of the suit, he has come to know that behind his back, the defendant No. 9 has executed 9 sale deeds dated 23-9-2004 in favour of defendant No. 1, 3 to 8 and defendant No. 10 & 11 selling 1/9th share each to the said defendants in the suit schedule property and amendment was also sought to incorporate the additional prayer for specific performance of the sale agreement dated 9-7-2004 to direct the defendant No. 9 to execute sale deed in respect of undivided 1/9th share in the suit schedule property in favour of the plaintiff by receiving the balance sale consideration amount and to put plaintiff in vacant possession of his 1/9th share. After the said amendment was allowed, the plaintiff filed another application to implead defendant No. 10 & 11 on the ground that they have purchased 1/9th share each in the suit 15 OS.No.16749/2004 Judgment KABC0A0030412004 schedule property which also came to be allowed. The latest amendment was by filing application on 14-3-2023 to incorporate the prayer to direct defendant No. 1, 3 to 8 , 10 & 11 to join defendant No. 9 in executing the sale deed in respect of undivided 1/9th share in favour of the plaintiff.
15. In support of his case the plaintiff has examined himself as PW1 and reiterated the plaint averments. In support of his case he has got marked only one document that is the copy of suit sale agreement dated 9-7-2004. In his cross-examination he has admitted that as on the date of suit itself he was aware that defendants have purchased suit property. In other words, as on the date of suit itself he was aware of the sale deeds dated 23-09-2004. But instead of filing suit for specific performance he has filed suit for bare injunction initially. Further, in his cross examination, he has denied having sent email to other defendants stating his inability to purchase the suit schedule property.
16 OS.No.16749/2004
Judgment KABC0A0030412004
16. On the other hand, the principal defense of the contesting defendant No. 1, 3 to 8 is that time was essence of the contract and the sale transaction had to be completed within 45 days. But plaintiff and defendant No. 2 were unable to arrange the funds for purchase of the property and more importantly for putting up construction after purchase and therefore they voluntarily withdrew from the transaction and instead of plaintiff and defendant No. 2, defendant No. 10 and 11 have entered into the picture and they entered into fresh sale agreement with defendant No. 9 and accordingly defendant No. 9 has executed 9 sale deeds dated 23-09-2004 which are collectively marked as Ex. P6 alienating 1/9th share each to the defendant No. 1, 3 to 8, 10 and 11. In support of their case, the said contesting defendants have examined defendant No. 1 as DW2 and got marked Ex. D1 to D6.
17. Ex. D1 is the sale agreement dated 30-8-2004 entered into by defendant No. 1, 3 to 8 , 10 and 11 with defendant 17 OS.No.16749/2004 Judgment KABC0A0030412004 No. 9. Ex. D2 is paper publication. Ex. D3 is the receipt issued by defendant No. 2 for having taken back her advance amount of Rs. 1 lakh. Ex. D4 are print out of emails along with CD and these emails are produced to show that defendant No. 2 on behalf of herself and also on behalf of plaintiff intimated to the other defendants that they are both not willing to continue the transaction since they have not obtained the bank loan and it is contended that the copy of the email was also forwarded to the plaintiff's email account and thereby plaintiff has implied his concurrence to the said email. Ex. D5 is certified copy of 9 sale deeds dated 23-09- 2004 under which defendant No. 9 has sold 1/9 th undivided share each to the defendant No. 1, 3 to 8 , 10 and 11. Ex. D6 is the 65 B certificate in respect of the secondary electronic evidence produced in this case.
18. Having considered the material on record, at the outset it is to be noted that there is no dispute between the parties about the sale agreement dated 9-07-2004 whereby plaintiff 18 OS.No.16749/2004 Judgment KABC0A0030412004 and defendant No. 1 to 8 jointly agreed to purchase one-ninth share each in the suit schedule property from defendant No. 9 for total sale consideration of Rs. 56,87,505. In fact, the very defense of the contesting defendant No. 1, 3 to 8 is that subsequent to entering into the said sale agreement and subsequent to each of the purchasers paying advance amount of Rs. 1 lakh, the plaintiff and defendant No. 2 were unable to arrange the funds for proceeding with the transaction due to not obtaining bank loan and therefore they have themselves voluntarily withdrawn from the transaction particularly since time was the essence of the transaction and sale transaction had to be completed within 45 days as per the terms of the agreement dated 9-07-2004 and the defendant No. 2 received back her advance amount of Rs. 1 lakh, but since plaintiff did not come forward to cancel the sale agreement and receive back the advance amount of Rs. 1 lakh, his advance amount has been forfeited by defendant No. 9. The said contention shall be considered infra, but at this stage on the very basis of 19 OS.No.16749/2004 Judgment KABC0A0030412004 the defense taken by the contesting defendant No. 1, 3 to 8 , it is clear that the defendants do not deny the sale agreement dated 9-07-2004 in respect of which specific performance is sought in the present suit and nor do the defendants deny that in pursuance of the said sale agreement, the plaintiff has paid his share of the advance amount of Rs. 1 lakh to defendant No. 9. Therefore, since these facts are undisputed, issue No. 1 and 2 are answered in the affirmative.
19. The crucial question to be considered in the present suit is whether in spite of plaintiff being ready and willing to perform his part of the contract, whether the defendant No. 1, 3 to 8 have in collusion with defendant No. 10 and 11 entered into sale deeds dated 23-09-2004 behind the back of the plaintiff or whether as contended by the contesting defendants they were constrained to do so by finding new persons to replace plaintiff and defendant No. 2 in the sale transaction because the plaintiff and defendant No. 2 were 20 OS.No.16749/2004 Judgment KABC0A0030412004 unwilling to proceed since they were unable to arrange the funds by obtaining bank loan.
20. Since the principal relief sought in the present suit is for specific performance of the suit sale agreement dated 9-07- 2004, at the outset, it is appropriate for this Court to consider whether the suit is barred by limitation because although no issue is framed in this regard, the Learned Counsel for Defendant No. 1, 3 to 8 vehemently argued that due to the delay in seeking amendment of the Plaint, the amendment will not relate back to the filing of the suit, but shall be effective only from the date of amendment application and construed from that date, the relief of specific performance is barred by limitation.
21. I am unable to accept this submission for the simple reason that the sale agreement in respect of which specific performance is sought is dated 9-07-2004 and although suit was initially filed for bare injunction, the plaintiff filed IA for 21 OS.No.16749/2004 Judgment KABC0A0030412004 amendment to incorporate the relief of specific performance on 9-01-2007, which was allowed on 14-06-2007. Therefore, within 3 years from the date of agreement itself, the plaintiff had already filed application for amendment, which was allowed, therefore, even conceding that the amendment shall not relate back to the filing of the suit, but shall be effective only from the date of application or the date of amendment order, the fact remains that even the order allowing the amendment incorporating relief of specific performance is passed within 3 years from the date of suit sale agreement, that is within 3 years from 9-07-2004 and therefore, it cannot be said that the relief of specific performance is barred by limitation.
22. However, just because the suit is within period of limitation and just because the agreement is admitted does not mean that plaintiff is entitled to relief of specific performance because it is necessary for the plaintiff to still 22 OS.No.16749/2004 Judgment KABC0A0030412004 prove that he was always ready and willing to perform his part of the contract.
23. In this regard, it is to be noted that if Ex. P1 is looked into, there is specific recital at page 7 of the said sale agreement that the balance sale consideration has to be paid by the purchasers within 45 days or at the time of execution of sale date, whichever is earlier. Again the intention of the parties to complete the sale transaction within 45 days is evident by the repetition of the same recital at paragraph 6a and 6c. At paragraph 7b of the agreement, it is stated that in the event of default by purchasers, the purchasers shall forfeit the advance amount of Rs. 9 lakhs and default by even a single purchaser shall be treated as default. Further at paragraph 7c of the agreement, it is made clear that specific performance can be enforced by the purchasers jointly and not individually by excluding any one of them. 23 OS.No.16749/2004
Judgment KABC0A0030412004
24. Therefore, it is clear that from the terms of the sale agreement that, the specific agreement between the parties was that the sale transaction shall be completed within maximum period of 45 days and in case the same is not completed, not only the defaulting party, but all the parties shall lose their advance amount.
25. In this background, it was very much necessary for the plaintiff to prove that he was ready with his share of the balance sale consideration amount of Rs. 5,31,945 within 45 days from 9-07-2004. In this regard, in the cross- examination of PW-1 regarding his financial capacity and readiness with the balance sale consideration amount, at page 3 of his cross-examination dated 3-7-2018, he has stated that in the year 2004, his gross salary was Rs. 9 lakhs and after deduction it was Rs. 6,50,000 and he was ready to pay amount of Rs. 8 lakhs including registration expenses to the owner. He has stated that he can produce the salary certificate of the year 2004 and he is ready to produce the 24 OS.No.16749/2004 Judgment KABC0A0030412004 documents to show that he had Rs. 8 lakhs at that point of time, but as already noted Supra, in this case plaintiff has not produced any document except the photocopy of the suit sale agreement dated 9-7-2004. In this regard, the law laid down by the Honourable High Court of Karnataka is that in a suit for specific performance, even where the financial capacity of the plaintiff to pay the balance sale consideration amount is not challenged, it is incumbent upon the plaintiff to produce documentary evidence to show that he had the financial capacity to raise the balance sale consideration at the relevant point of time. This law has been laid down by the Honourable High Court of Karnataka in the case of Punny Akat Philip Raju v. Dinesh Reddy, 2016 SCC OnLine Kar 6806 : ILR 2016 Kar 2252 : (2016) 5 Kant LJ 91 : (2016) 3 KCCR 2372 : (2016) 3 AIR Kant R 836 : (2016) 4 ICC 863 :
2016 AIR CC 3225 : (2017) 170 AIC (Sum 6) 3 at page 2279 :25 OS.No.16749/2004
Judgment KABC0A0030412004 PROOF OF READINESS
32. The proof of readiness necessarily means demonstration of financial ability or capacity to pay the balance sale consideration and take the sale deed. When a person on oath states in the witness box that he is ready with the requisite funds, he must produce some evidence to prove his possession of the required funds. The explanation makes it clear that the proof of requisite funds does not mean he should produce the currency before the Court or he should deposit the money in Court. But at the same time, mere statement on oath in the witness box that he is possessed of the requisite funds would also do not prove possession of funds. The said proof has to be necessarily by way of documentary evidence. The reason being, if, the payment is to be made in cash i.e., by handing over currency, currency is a documentary evidence. The explanation makes it clear that to prove readiness, the plaintiff need not produce the currency before the Court. If the balance consideration is to be deposited in the Court such a deposit is also evidenced by documentary evidence, which is also not necessary by virtue of the explanation.
(Emphasis Supplied) 26 OS.No.16749/2004 Judgment KABC0A0030412004
26. The said law is squarely applicable to the facts of the present case and in fact, in this case the financial capacity of the plaintiff to pay the balance sale consideration amount is specifically challenged. Such being the case, when the entire defence of the defendants is built on the fact that the defendant No. 1, 3 to 8 were constrained to look for replacements to the plaintiff and defendant No. 2 to go ahead with the transaction because plaintiff and defendant No. 2 expressed their inability to go ahead with the transaction due to not obtaining bank loan and therefore, the other defendants were constrained to arrange for defendant No. 10 and 11 to take their place, since if the transaction did not go through within 45 days as per the terms of the sale agreement, they would lose their advance amount of Rs. 1 lakh each, it was expected of the plaintiff to produce documentary evidence to show that he was ready to pay the balance sale consideration amount at the relevant point of time that is within 45 days from 9-7-2004. Further, it is 27 OS.No.16749/2004 Judgment KABC0A0030412004 crucial to note that, in a case of this nature, it is not just necessary for the plaintiff to show that he was ready with the balance sale consideration amount for purchasing his undivided 1/9th share, but more importantly since the very purpose of purchasing 1/9th share each was to put up apartment complex with each party getting one apartment, it was expected of the plaintiff to also further show that he was also ready with the funds for constructing his portion of apartment complex. Having not done so and when the terms of the agreement make it clear that time was essence of the contract and if the sale transaction was not completed within 45 days, not only the defaulting party but all the purchasers would lose Rs. 1 lakh each which was paid as advance amount, it follows that plaintiff has hopelessly failed to prove that he was ready and willing to perform his part of the contract.
27. Once this conclusion is reached, it follows that the plaintiff is not entitled to the relief of specific performance as 28 OS.No.16749/2004 Judgment KABC0A0030412004 prayed for. Accordingly, I answer issue No. 3 and 5 in the negative.
28. In so far as issue No. 4 is concerned, I have already held that the defendant No. 1, 3 to 8 were constrained to look for replacements for plaintiff and defendant No. 2 since they were not willing to proceed with the sale transaction and in order to avoid the risk of losing their respective advance amounts, the defendant No. 1, 3 to 8 have arranged for defendant No. 10 and 11 to replace plaintiff and Defendant No. 2 in the transaction and they have entered into fresh sale agreement as per Ex. D1 and on that basis got sale deeds in their favour as per Ex. D5. Therefore, the sale deeds at Ex. D5 are not the result of collusion but a result of necessity due to plaintiff and defendant No. 2 not being ready to go ahead with the sale transaction. Hence, issue No. 4 is answered in the negative.
29 OS.No.16749/2004
Judgment KABC0A0030412004
29. In so far as issue No. 6 is concerned, when plaintiff is not entitled to relief of specific performance for the reason that he was not ready and willing to perform his part of the contract, it follows that there is no question of granting the relief of recovery of possession of 1/9 th share to the plaintiff and hence issue No. 6 is also answered in the negative.
30. Issue No. 7 casts burden on defendant No. 1, 3 to 8 to prove that subsequent to the sale agreement dated 9-7-2004, plaintiff and defendant No. 2 were not willing to purchase the property. This issue is not necessary for the purpose of the present suit because once it is held that plaintiff has failed to prove his readiness and willingness to perform his part of the contract, the plaintiff is not entitled to relief of specific performance and therefore, there is no need for the contesting defendants to prove that plaintiff voluntarily withdrew from the sale transaction and accordingly issue No. 7 is answered.
30 OS.No.16749/2004
Judgment KABC0A0030412004
31. Before parting, it is necessary to consider whether at least plaintiff is entitled to refund of the advance amount of Rs. 1 lakh, which is admittedly paid by plaintiff to defendant No. 9 under the sale agreement at Ex. P1. Even this relief cannot be granted for two reasons. Firstly, the plaintiff has not sought for alternative relief of refund of advance amount and in terms of section 22 [2] of the Specific Relief Act without there being a specific prayer in respect of the same, it is not possible for the court to grant the relief of refund of advance amount. Secondly, and more importantly it is to be noted that, as per the specific terms of the sale agreement, it was specifically agreed between the parties that the purchasers shall shall lose the advance amount if the sale transaction is not completed within 45 days. I have already held supra that plaintiff has failed to prove his readiness and willingness to perform his part of the contract within the prescribed time period. Consequently, in terms of the sale agreement, defendant No. 9 is entitled to forfeit the advance amount of 31 OS.No.16749/2004 Judgment KABC0A0030412004 Rs. 1 lakh paid by the plaintiff. Hence, for above reasons, plaintiff is not entitled even to relief of refund of advance amount which is admittedly paid by the plaintiff to defendant No. 9.
Issue No. 8:-
32. Having answered issue No. 1 to 7 as above, I proceed to pass the following :
:: ORDER ::
The suit is dismissed, with cost.
Office to draw decree accordingly.
[Dictated using Dragon Professional Speech Recognition Software Version 15.3, transcript revised, corrected, signed and then pronounced by me in open court on this the 10th day of April, 2023] (Sri. S. Sudindranath) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT; BANGALORE.32 OS.No.16749/2004
Judgment KABC0A0030412004 :ANNEXURE:
WITNESSES EXAMINED FOR PLAINTIFF:
P.W.1 : R. Venkatesh S/o H. Ramachandra Rao DOCUMENTS MARKED FOR PLAINTIFF:
Ex.P1 Photocopy of Agreement of Sale
WITNESSES EXAMINED FOR DEFENDANTS:
D.W.1 : Smt. Anandi M D/o Late N. Krishnan
D.W.2 : Ashish P.K S/o C. P. Saseendran
DOCUMENTS MARKED FOR DEFENDANTS:
Ex.D1 : Original Sale Agreement dt: 30/08/2004
Ex.D2 : Sanjevani Newspaper Dt: 26/06/2004 in which
public notice is taken out
Ex.D3 : Receipt Issue by D2
Ex.D4 : Print out of emails (4 Nos) consisting of totally
13 sheets along with C.D
Ex.D5 : Certified copy of sale deed dt: 23/09/2004 (9
Nos)
Ex.D6 : 65B Certificate
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.