Bangalore District Court
M/S.Rajarajeswari Build-Con Pvt.Ltd vs Sri.B.R.Ramakrishna on 4 November, 2022
KABC010216682014
IN THE COURT OF XXXV ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-36)
DATED ON THIS 4th DAY OF NOVEMBER 2022
Present: Sri.M.B.Kulkarni, B.Sc.,L.L.B.,(Spl)
XXXV Addl.CC & SS Judge, Bengaluru.
O.S.No.7720/2014
Plaintiff : M/s.Rajarajeswari Build-con Pvt.Ltd.,
having its office at
No.67/1, Sri Ranga Complex,
Nettakallappa Circle,
Basavanagudi,
Bangalore-560 004.
Rep by its Managing Director
Sri.Ramanlal M Shah
(By Sri.R.S., Advocate)
-Vs-
Defendants : 1. Sri.B.R.Ramakrishna,
S/o.Late B.T.Munirangappa,
Since dead by his L.Rs.
1(a) Smt.Varalakshmi,
W/o.Late B.R.Ramakrishna,
Aged about 62 years.
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(b) Sri.Mohan Ram,
S/o.Late B.R.Ramakrishna,
Aged about 32 years.
(c) Smt.Reena Ram,
D/o.Late B.R.Ramakrishna,
Aged about 29 years.
(d) Smt.Tejaswini,
D/o.Late B.R.Ramakrishna,
Aged about 26 years.
2. Sri.B.R.Nagaraja,
S/o.Late B.T.Munirangappa,
Aged about 64 years.
3. Sri.B.R.Shankara,
S/o.Late B.T.Munirangappa,
Aged about 61 yeas.
4. Smt.B.R.Jayamma,
D/o.Late B.T.Munirangappa,
Aged about 72 years.
5. Smt.B.R.Parvathi,
D/o.Late B.T.Munirangappa,
Aged about 70 years.
6. Smt.Rajeswari,
D/o.Late B.T.Munirangappa,
Aged about 62 years.
7. Sri.B.R.Jagadamba,
D/o.Late B.T.Munirangappa,
Aged about 52 years.
8. Smt.Mangala Gowri,
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W/o.Late Sri.B.R.Ramachandra,
Daughter in law of Late B.T.Munirangappa,
Aged about 49 years.
All are residing at No.3, 2nd cross,
East Line Road, Malleshwaram,
Bangalore-560 003.
9. Smt.B.R.Chandramba,
D/o.Late A.Ramaiah and Smt.Rajamma,
Aged about 54 years.
10. Sri.B.R.Chandrashekar,
D/o.Late A.Ramaiah and Smt.Rajamma,
Aged about 50 years.
Both are residing at No.7(Old No.4), 2nd
Cross, East Link Road, Malleswaram,
Bangalore-560 003.
11. Sri.Chandrashekara Raju,
S/o.Late Sri.Changama Raju,
Aged about years,
R/a No.566, 10th A Main,
5th Block, Jayanagar,
Bangalore-560 011.
Sri.A.M.N Advocate for defendant
Nos.1 to 7, Sri.M.G., Advocate for
defendant No.8, Sri.B.K.W, Advocate for
defendant No.9, Sri.P.P., Advocate for
defendant No.10
Date of institution of the suit : 14-10-2014
Nature of the suit : Specific Performance
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Date of commencement of
recording of the evidence : 01-12-2018
Date on which the judgment : 04-11-2022
was pronounced
Total duration : Years/s Month/s Day/s
07 00 23
(M.B.KULKARNI)
XXXV Addl.City Civil &
Sessions Judge, Bengaluru
JUDGMENT
This is the suit filed by the plaintiff against defendant Nos.1 to 11 for the relief of Specific Performance of Contract as prayed for.
2. Description of the schedule property:-
All that piece and parcel of the entire residential vacant site property bearing Municipal No5 (formerly bearing No.360) situated at 16th Main, 4th T Block, Jayanagar, Bangalore PID No.58-7-5 measuring East to West 75 feet and North to South 60 feet and bounded on the:- East by : Site No.346 & 347
West by : 16th Main Road
North by : Site No.359
South by : Site No.361
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3. In brief, case of the plaintiff is as follows:-
It is averred by the plaintiff that defendant Nos.1 to 10 are the owners of suit property. Originally, the suit property was allotted to one Munivenkatappa by City Improvement Trust Board, Bengaluru, on the basis of lease cum sale agreement, dated 2-1-1958 and he was put in possession of suit property as pr the Government Rule and thereafter, possession certificate was issued to him on 10-2-1958. After completion of lease cum sale period, CITB Bengaluru executed Sale Deed of suit property in favour of above said Munivenkatappa on 11-12- 1980. The said Munivenkatappa was unmarried. During his lifetime, late Munivenkatappa executed his Will Deed in respect of suit property and other properties in favour of his nephews and niece i.e., children of his brother by name Munirangappa (defendant Nos.1 to 8) on 19-2- 1007. In the said will, the testator Munivenkatappa appointed defendant No.2 Mr.Nagaraj as the executor of the Will. Munivenkatappa died on 13-3-1997. Subsequently, the executor of the Will i.e., defendant No.2 presented the Will deed before Sub-Registrar, Basavanagudi for registration and accordingly, will was registered on 6 12-6-1998 and accordingly, the defendant Nos.1 to 10 are in possession and enjoyment of suit property. The defendant Nos.1 to 10 are in possession and enjoyment of suit property. The defendant Nos.1 to 10 for their financial difficulty agreed to sell the suit property in favour of plaintiff on 15-10-2010, for valuable consideration of Rs.2,02,50,000/- (Two Crores Two Lakhs Fifty Thousand), out of which, Rs.22,00,000/- (Twenty Two Lakhs) was agreed to be payable to defendant No.11 who was previous Agreement holder of suit property from defendant Nos.1 to 8. The plaintiff has paid Rs.85 lakhs as advance amount to defendant Nos.1 to 11 by cash and cheque. The time fixed for executing absolute sale deed of suit property was 120 days from the date of claim of the plaintiff for execution of registered sale deed and in case of delay, it was agreed to extend the time mutually. Subsequently, the mother of defendant Nos.9 & 10 by name Smt.Rajamma filed a police complaint against the plaintiff and others on the ground that her signature was forged on Ex.P.2 by some third party impersonating as Rajamma at the instance of plaintiff and others. Thereafter, compromise took place between mother of defendant Nos.9 & 10 Smt.Rajamma and plaintiff and accordingly, Smt.Rajamma agreed to 7 sell her share in suit property to plaintiff and accordingly, she executed agreement of sale on 10-5-2013 by receiving the consideration amount of Rs.8,50,000/- and consented for previous agreement of sale dated 15-10-2010. The mother of defendant Nos.9 & 10 Smt.Rajamma died leaving behind her legal heirs. Later on, the defendant Nos.9 & 10 being L.Rs of late Rajamma also compromised the matter with the plaintiff and executed fresh Agreement of Sale of suit property in favour of plaintiff on 20-11-2013, consenting to the previous both agreements, dated 15-10-2010 and 10-5-2013. The defendants approached the plaintiff and demanded to pay the additional amount of sale consideration of Rs.25 lakhs by way of further advance amount and the plaintiff paid total Rs.1,08,00,000/- to the defendants. Later on, the defendant Nos.1 to 7 turned back and filed O.S.No.768/2013 before CCH-44, Bengaluru for the relief of cancellation of Agreement of Sale of suit property on the ground that the mother of defendant Nos.9 & 10 was impersonated. The plaintiff was ever ready and willing to perform his part of contract and he has sufficient balance amount with him to pay the remaining balance sale consideration to the defendants and the plaintiff requested the defendants number of times to perform their part 8 of contract but the defendants failed to do so. Hence, the plaintiff got issued the legal notice dated 15-3-2014 to the defendants calling upon them to execute the registered sale deed of suit property by receiving the balance sale consideration amount. The defendants have given evasive reply and not performed their part of contract. Hence, this suit for the relief of specific performance as prayed for.
4. In pursuance of suit summons, the defendants appeared through their Counsel and filed their written statement. The defendant No.1 filed their separate written statement, whereas, defendant Nos.2 to 7 and 9 & 10 adopted written statement of defendant No.1. The defendant No.8 filed her separate written statement.
5. The written statement of defendant No.1 is as under:-
The defence of defendant No.1 is total denial of the case of plaintiff. It is contended that the suit is bad for non joinder of number of causes of action and the suit is bad for non joinder of Managing Director of plaintiff as necessary party and also suit is bad for mis joinder of defendant Nos.9, 10 and 11 against whom there is no cause of action. It is contended that the suit is barred by Law of Limitation. It 9 is further contended that the suit is hit by Section 10 of CPC, since one more suit O.S.No.768/2013 is pending before CCH-44, Bengaluru. It is further contended that the Court fee paid by the plaintiff is not proper and correct. It is further contended that the suit document is concocted and created by the plaintiff by fraud and misrepresentation. It is contended that there is no cause of action in this suit. It is further contended that only defendant Nos.1 to 8 are the owners of suit property but not the defendant Nos.9, 10 and 11. It is contended that defendant Nos.9 to 11 have no rights over the suit property. It is contended that there is no any Agreement between defendant Nos.1 to 9 and defendant No.11. It is contended that defendant No.1 is not aware as to how much amount paid by plaintiff to Rajamma. The death of Rajamma is admitted. It is contended that since the plaintiff Company is running in loss which has no financial capacity in its Bank account to pay consideration amount to the defendants and the plaintiff has not performed his part of contract, even if the contract is enforceable under law. It is contended that Rajamma being sister of defendant No.1 filed O.S.No.2841/1999 for the relief of partition and separate possession of her share in the joint family properties before 10 CCH-2, Bengaluru and obtained order of temporary injunction against defendants not to alienate the suit properties. Since the subject matter of this suit and subject matter of O.S.No.2841/1999 are one and the same, the defendants cannot alienate suit property to the plaintiff in view of the existence of temporary injunction order. It is further contended that pending disposal of such suit referred above, the Director of plaintiff Company Mr.Ramanlal Shah contacted parties to the suit and instigated them to enter into compromise and agreed to pay Rs.58 lakhs to defendant Nos.1 to 7 and accordingly, the defendant Nos.1 to 7 executed registered agreement of sale of suit property in favour of plaintiff under the impression that Rajamma was also one of the party to the Agreement. Ramanlal Shah paid only Rs.48 lakhs to defendant Nos.1 to 7 but not Rs.85 lakhs as averred by him in the plaint. It is further contended that the plaintiff Companies Director Ramanlal Shah paid only Rs.10 lakhs to defendant No.1 as against Rs.20 lakhs. Subsequently, defendant No.1 came to know that defendant No.11 was also included in the suit agreement as one of the party. Later on, defendant No.1 came to know that Ramanlal Shah in collusion with defendant Nos.10 & 11 took some unknown lady as if 11 Rajamma and by impersonating her as Rajamma got executed Agreement of sale of suit property dated 15-10-2010 and got her signature over suit document. But, that signature is not the real signature of Rajamma and such agreement is fraudulent one created by forgery and as such, the said document is not binding on defendant No.1. Hence, the defendant No.1 filed O.S.No.768/2013 to get relief of declaration that such Agreement dated 15-10-2010 is forged document and not binding on defendants. The defendant No.1 is not a party to the alleged Agreement dated 10-5-2013 and 20-11-2013. Hence, on these grounds prayed to dismiss the suit.
6. The written statement of defendant No.8 is as under:-
The defendant No.8 is one of the co owner of suit property and she has no intention to sell suit property to the plaintiff. The brother & sisters of defendant No.8 i.e., defendant Nos.1 to 7 concocted and created suit document in collusion with plaintiff and forcibly took signature of defendant No.8 on the Agreement of Sale of suit property which is not binding on her. Defendant No.8 has not received any amount of sale consideration from the plaintiff. Hence, on these 12 grounds prayed to dismiss the suit.
7. On the basis of the pleadings of both the parties to the suit, the following issues are framed by this Court and subsequently, additional issues are also framed:-
ISSUES
1. Whether the plaintiff proves the execution of the Sale Agreement, dated 15-10-2010 by the defendants as pleaded in the plaint?
2. Whether the plaintiff proves the execution of the Sale Agreement, dated 10-5-2013 by the defendants as pleaded in the plaint?
3. Whether the plaintiff proves the execution of the Sale Agreement, dated 20-11-2013 by the defendants as pleaded in the plaint?
4. Whether the plaintiff proves payment of Sale Consideration of Rs.1,08,00,000-00 to the defendants as pleaded in the plaint?
5. Whether the plaintiff has been ready and willing to perform his part of contract?
6. Whether the defendants prove that the suit is bad for mis-joinder of cause of 13 action of 3 (three) agreements?
7. Whether the suit is barred by time?
8. Whether the plaintiff is entitled for Specific Performance of the agreements referred to in issue Nos.1 to 3?
9. What Order or Decree?
Additional Issues framed on 29-09-2022
1. Whether defendant Nos.1 to 7 prove that the suit is bad for non joinder of all the managing Directors of plaintiff Company as necessary parties?
2. Whether defendant Nos.1 to 7 prove that the suit is bad for mis joinder of defendant Nos.9, 10 and 11?
3. Whether defendant Nos.1 to 7 prove that the Court fee paid by the plaintiff is not proper and correct?
4. Whether defendant Nos.1 to 7 prove that the suit is hit by Section 10 of CPC a nd as such, it is not maintainable?
5. Whether defendant Nos.1 to 10 proves that the suit document is concocted and created by the plaintiff by way of impersonation and forgery?
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8. After framing the issues, the matter is posted for plaintiff's evidence.
9. Heard Arguments of both sides and examined evidence placed on record.
10. The Director of plaintiff's Company by name Sri.Ramanlal Shah got examined himself as P.W.1 and got marked documents at Exs.P.1 to P.12 and closed his side of evidence. Thereafter, the matter is posted for defendants evidence. The defendant No.3 Mr.B.R.Shankar got examined in chief as D.W.1 for himself and on behalf of defendant Nos.1 to 7 and got marked documents at Exs.D.1 to D.9 and closed his side of evidence. Rest of the defendants have not adduced their evidence. Hence, their evidence is taken as nil. Thereafter, the matter is posted for arguments of both sides and examined the evidence placed on record.
11. My findings to the above issues are as follows:-
Issue No.1 : In the affirmative
Issue No.2 : In the affirmative
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Issue No.3 : In the affirmative
Issue No.4 : In the negative
Issue No.5 : in the affirmative
Issue No.6 : In the negative
Issue No.7 : In the negative
Issue No.8 : In the affirmative
Issue No.9 : As per final order
Addl.Issue No.1 : In the negative
Addl.Issue No.2 : In the negative
Addl.issue No.3 : In the negative
Addl.issue No.4 : In the negative
Addl.issue No.5 : In the negative
REASONS
12. Issue Nos.1 to 4:- I have taken these four issues together for my common discussion on the ground that they are interlinked with each other and to avoid repetition of reasoning.
It is pertinent to note here that it is not disputed by both parties to the suit that, suit property was originally belonging to one Munivenkatappa the uncle of defendant Nos.1 to 8 and it is also not 16 disputed by both parties to the suit that, the suit property was allotted to him by CITB, Bengaluru on 2-1-1958 and he was put in possession of the suit property as per the possession certificate issued by CITB dated 10-2-1958. It is also not disputed by both parties to the suit that, after completion of lease period, the CITB, Bengaluru executed Sale Deed of suit property in favour of Munivenkatappa on 11-12-1980. It is also not disputed by both the parties to the suit that, the said Munivenkatappa was unmarried and during his lifetime he has executed a Will of suit property and other family properties in favour of his nephews and niece ie., children of his brother by name Munirangappa on 19-2-1997. It is also not disputed by both the parties to the the suit that the Testator Munivenkatappa appointed defendant No.2 Nagaraj as the executor of the Will and after death of Munivenkatappa on 13-3-1977 defendant No.2 presented the said Will document before Sub-Registrar, Basavanagudi and got registered the same and accordingly, as per registration dated 12-6-1998, the defendant Nos.1 to 10 got title over of suit property. Such being the undisputed points, Ex.D.1 produced by D.W.1 in order to prove the Will of Munivenkatappa requires to be accepted as evidence since Will of Munivenkatappa dated 12-6-1998 is 17 not disputed by the other side. The careful perusal of Ex.D.1 will deed of suit property reveals that Testator Munivenkatappa bequeathed suit property to his legatees to the equal extent of share. Hence, defendant Nos.1 to 8 and Rajamma are entitled for 1/9th share in the suit property.
13. It is the case of the plaintiff that the defendant Nos.1 to 11 executed agreement of sale of suit property dated 15-10-2010 for valuable consideration and thereafter, mother of defendant Nos.9 to 10 Smt.Rajamma executed one more fresh agreement of sale dated 10-5- 2013 and subsequently, after the death of Rajamma, the L.Rs of Rajamma i.e., defendant Nos.9 & 10 executed one more fresh agreement of sale of suit property in respect of their share dated 20-11- 2013 in favour of plaintiff. In order to prove such issues, wherein, the burden of proof is on the plaintiff, the plaintiff got examined in chief as P.W.1 and got marked in all 12 documents at Exs.P.1 to P.12, wherein, Ex.P.1 is the copy of resolution passed by the plaintiff Company on 11- 10-2010 at 11-30 a.m., appointing Mr.Ramanlal Shah as Director of Company to negotiate with defendant No.1 B.R.Ramakrishna to purchase suit property and also resolved that he is authorised to deal 18 with suit property and to execute any document of sale deed or lease deed or other necessary documents in respect of business of plaintiff Company. Hence, this document Ex.P.1 authorises P.W.1 to file suit and to depose in this suit on behalf of plaintiff company.
14. Ex.P.2 is the registered Agreement of sale of suit property without possession executed by defendant Nos.1 to 8 and defendant No.11 and one Mrs.Rajamma on 15-10-2010 to sell the suit property in favour of plaintiff for valuable consideration of Rs.2,02,50,000/- wherein, by virtue of such document, Rs.20 lakhs was paid to defendant No.1 Mr.Ramakrishna and Rs.20 lakhs paid to defendant No.3 B.R.Shankar and Rs.10 lakhs to his sister Smt.Rajamma and Rs.3 lakhs each paid to the other defendants by name Sri.Nagaraj, Jayamma, Parvathi, Rajeshwari, Jagadamba and Mangala Gowri. Therefore, by virtue of production of such document, the plaintiff proved the first agreement of sale of suit property dated 15-10-2010. The defendants have not disputed such agreement of sale of suit property as per Ex.P.1 dated 15-10-2010 and it is not the case of defendants that no any such document came into force. The defendant Nos. 1 to 7 19 in their written statement contended that the suit document Ex.P.2 is effected by fraud, misrepresentation etc., is concerned, it will be discussed in the later part of Judgment while dealing with a separate issue framed in that regard.
15. Now, in order to give finding in respect of issue Nos.1 to 4, it is necessary to prove whether really the defendants had executed agreement of sale of suit properties as per issue Nos.1 to 4.
In addition to Ex.P.2, the mother of defendant Nos.9 & 10 and sister of defendant Nos.1 and 3 Smt.Rajamma executed agreement of sale of suit property dated 10-5-2013 in favour of plaintiff's Company as a co-owner of suit property by receiving consideration of Rs.15 lakhs. This document bears the LTM of Rajamma. The mother of defendant Nos.9 & 10 has not disputed Ex.P.3 and it is admitted by the defendant Nos.9 & 10 also. Hence, the admitted facts need not be proved.
16. In addition to that, the plaintiff produced Ex.P.4 i.e., is one more unregistered Agreement of Sale of suit property dated 20-11-2013 executed by L.Rs of above said Rajamma by name B.R.Chandramba and B.R.Chandrashekar, who are children of the above said Rajamma, 20 after her death, in order to ratify first Agreement of Sale of suit property dated 15-10-2010 as per Ex.P.2. Therefore, by virtue of Ex.P.4, the defendant Nos.9 & 10 the L.Rs of Rajamma ratified Exs.P.2 and P.3 and thereby, extended the time limit for the purpose of Specific Performance of Contract by way of renewal of original agreement.
17. If at all really as per the defence of the defendants, Ex.P.2 Agreement of sale dated 15-10-2010 is concocted and created by the plaintiff as alleged by the defendants, by way of fraud, misrepresentation and impersonation etc., nothing prevented the sister of defendant Nos.1 to 7 by name Smt.Rajamma to take legal action against plaintiff and others both under Civil & Criminal Law but instead of taking such legal action, the sister of defendant No.3, Smt.Rajamma by compromising the matter with plaintiff, executed Agreement of Sale dated 10-5-2013 as per Ex.P.3 and ratified the previous Agreement of Sale dated 15-10-2010 and thereafter, renewed the Agreement of Sale dated 15-10-2010. Even after death of Smt.B.R.Rajamma, her children i.e., defendant Nos.9 & 10 by name Chandramba and Chandrashekar not disputed the previous two Agreements of sale dated 15-10-2010 21 and one more Agreement of Sale executed by their mother on 10-5- 2013 and consented for renewal of the suit agreement as per Exs.P.2 and P.3 by virtue of executing a fresh Agreement dated 20-11-2013 and thereby, ratified the previous contracts as per Exs.P.2 and P.3. Therefore, by virtue of Exs.P.2 and P.3, the suit transactions are binding on defendant Nos.9 & 10 and by virtue of Ex.P.2, the suit transaction is binding on defendant Nos.1 to 7.
18. It is pertinent to note here that in pursuance of Exs.P.1 to P.4, Agreement of sale of suit property executed by defendant Nos.1 to 10, the plaintiff called upon the defendants to execute registered Sale Deed of suit property by virtue of legal notice dated 15-3-2014 as per Ex.P.5 to perform their part of contract and in order to prove his readiness and willingness to perform his part of contract, he has produced Ex.P.5 document. In order to prove that such legal notice was duly served upon, defendant Nos.1, 2, 5, 6, 8,9 & 10, plaintiff produced the postal acknowledgments at Ex.P.6 which reveals that such legal notice was duly served upon the defendants. In pursuance of legal notice, the defendant Nos.1, 2, 5, 6, 8, 9 and 10 have forwarded reply to the legal 22 notice through their Advocate as per Ex.P.7 admitting the sale agreement of suit property as per Ex.P.2 dated 15-10-2010. but, denied receipt of the full payment of the sale consideration amount by them from the plaintiff. The defendants in their reply to the legal notice taken defence that the agreement is barred by law of limitation and the plaintiff has violated the terms and conditions of Ex.P.2 agreement and also taken defence that since temporary injunction is granted in O.S.No.2841/2019 not to alienate the suit property, the defendants cannot execute sale deed in favour of plaintiff and also taken a stand that by virtue of O.S.No.768/2013, the defendants challenged the agreement of sale marked at Ex.P.2 as null and void and not binding on that ground of fraud, misrepresentation and impersonation. Therefore, plaintiffs in O.S.No.768/2013 pleaded that they cannot perform their part of agreement. Similarly, the defendant No.8 also forwarded her reply to the legal notice of plaintiff dated 4-4-2014 stating that her signature was obtained on Ex.P.2 - agreement of sale without disclosing true facts and without showing the document to her and such signature was taken forcibly against her will. Therefore, it is not binding on her.
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19. At this juncture, it is pertinent to note here that if at all really, the plaintiff or the defendant Nos.1 to 7 really practiced fraud on Mangala Gowri and took her signature by misrepresentation or by force, she was not supposed to put her signature in the office of Sub-Registrar to Ex.P.2 document, if at all she was not intended to execute Ex.P.2 document. It is further pertinent to note here that if the defendants had taken signature of the defendant No.8 over Ex.P.2 document under threat, nothing prevented the defendant No.8 to file criminal complaint before police or private complaint before JMFC Court to take legal action against defendant Nos.1 to 7 or against plaintiff. It appears that she has not filed criminal complaint and not moved criminal law into motion against the plaintiff and defendant Nos.1 to 7. Therefore, the silence on her part amounts to consent of executing Ex.P.2 and not taken legal action against the plaintiff for alleged fraud and misrepresentation amounts to waiver of her rights to challenge Ex.P.2 document. Therefore, Ex.P.2 document is binding on defendant Nos.1 to 8 as per Ex.P.7 and P.8.
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20. In addition to Exs.P.2 to P.4, the plaintiff produced Ex.P.9 is the reply given by the defendant Nos.9 & 10 to the legal notice of plaintiff on 19-5-2014 admitting the suit transaction of sale agreement dated 10-5-2013 and 20-11-2013 and claiming themselves as L.Rs of late B.R.Rajamma who succeeded to her estate and further stated that they are ready to perform their part of contract subject to payment of remaining balance amount of sale consideration.
21. Ex.P.10 is the reply given by defendant No.11 i.e., the previous holder of agreement of suit property executed between himself and defendant Nos.1 to 8 dated 27-9-2000 and stated that by virtue of Ex.P.2 agreement of sale, he has received consideration amount of Rs.17 lakhs from plaintiff and he has no any further claim over the suit property and he has given up his right in favour of plaintiff and by virtue of Ex.P.2 dated 15-10-2010, the plaintiff has entered into agreement of sale of suit property with defendant No.11 as a purchaser of suit property. Therefore, by virtue of Ex.P.10 document, the defendant No.11 has admitted that he has no claim over suit property. Therefore, the plaintiff has proved the execution of Ex.P.2 agreement of sale 25 executed by defendant Nos.1 to 7 and proved execution of Ex.P.3 agreement of sale dated 10-5-2013 executed by sister of defendant No.1 Smt.B.R.Rajamma and also proved Ex.P.4 one more agreement of sale of suit property dated 20-11-2013 executed by L.Rs of B.R.Rajamma by name Chandramba, Chandrashekar (defendant Nos. 9 & 10) and also by virtue of Ex.P.10 document the plaintiff proved the contract between the plaintiff and defendant No.11 as subsequent purchaser.
22. It is pertinent to note here that the careful perusal of the written statement of defendant Nos.1 to 7 itself goes to reveal that the defendant Nos.1 to 7 have admitted in their pleading that Ex.P.2 agreement of sale came into force between plaintiff and defendant Nos.1 to 7 as on 15-10-2010. Hence, defendant Nos.1 to 7 admitted suit document Ex.P.2. But what is disputed by defendant Nos.1 to 7 is that the plaintiff has not paid Rs.85 lakhs to the defendant Nos.1 to 7 as alleged by him in plaint but paid only Rs.48 lakhs and sought for payment of remaining balance amount. In this connection, it is necessary to examine the evidence of the parties.
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23. It is pertinent to note here that, in the cross-examination of D.W.1 (defendant No.3) has admitted that Ex.P.2 document was executed by defendant Nos.1 to 7 in favour of plaintiff on 15-10-2010. It is not the defence of the defendant Nos.1 to 7 that they have not executed the Ex.P.2 agreement of sale but what is the defence of the defendant Nos.1 to 7 is that the plaintiff brought one unknown lady to sign Ex.P.2 document as if sister of defendant No.1 Smt.Rajamma and took her signature over Ex.P.2 by impersonation as if Rajamma. Such pleading of the defendants cannot be believed and accepted, because as on the date of execution of Ex.P.2 document before Sub-Registrar, Basavanagudi, all the defendant Nos.1 to 7 were present and they put their signature to Ex.P.2 agreement before Sub-Registrar and if at all really the plaintiff has brought some unknown lady and asked her to sign as Rajamma by impersonation, the defendant Nos.1 to 7 should have definitely taken objection for signature of such strange lady. The defendant Nos.1 to 7 without taking such objections on that day and at that time kept quite and consented to execute the Ex.P.2 document. The defendant Nos.1 to 7 being brothers of Rajamma, are aware about the physique of her sister Rajamma and when a third strange lady 27 comes to the spot to sign as if Rajamma definitely the defendant Nos.1 to 7 should have complained about such strange lady stating that she is not their sister Rajamma. Therefore, not taking such objections by defendant Nos.1 to 7, pre-supposes that in all probability, the defendant Nos.1 to 7 themselves brought some unknown lady to the Sub- Registrar office to sign as if Rajamma in order to dupe the share of her sister Rajamma and to get wrongful gain. Therefore, the plaintiff being third party to the family of defendants may not be knowing who is Rajamma and when the defendant No.1 and 3 have taken major role in execution of Ex.P.2 document, it is their duty to bring all his brothers and sisters to the Sub-Registrar office for execution of Agreement of Sale, if at all, their brothers and sisters have consented for the same. If the defendant Nos.1 to 7 bring a strange lady to Sub-Registrar office who is not family member of defendants, the plaintiff by keeping trust and confidence over the defendants might have thought that strange lady may be Rajamma. Therefore, the plaintiff cannot be blamed for the wrongful acts of the defendant Nos.1 to 7 managing to sign Ex.P.2 by unknown lady as is Rajamma. At the cost of repetition, if at all really the plaintiff himself has brought a strange lady to the spot of Sub- 28 Registrar office to sign Ex.P.2 agreement of sale, then the defendant Nos.1 to 7 being brothers of Rajamma should have definitely taken objections for putting signature by such strange lady as if Rajamma. Therefore, silence on the part of defendant Nos.1 to 7 pre-supposes that defendant Nos.1 to 7 themselves in all probabilities created the false signature of Rajamma over Ex.P.2 document in English language when really Rajamma was putting her LTM.
24. It is pertinent to note here that in order to overcome such in inadvertence caused by the defendant Nos.1 to 7, while executing Ex.P.2 agreement of sale and to legalize such Ex.P.2 document, the plaintiff compromised the matter with sister of defendant Nos.1 to 7 Rajamma and by making payment of Rs.15 lakhs to her, the plaintiff got executed a fresh agreement of sale of suit property from Rajamma by virtue of Ex.P.3 document which bears LTM of Smt.B.R.Rajamma and such document Ex.P.3 is not disputed by her children or the other defendants. On the other hand, the children of Smt.B.R.Rajamma i.e., defendant Nos.9 & 10 after death of their mother executed fresh agreement of sale as per Ex.P.4 dated 20-11-2013 ratifying the previous 29 contracts dated 15-10-2010 that is alleged, previous agreement executed by their mother dated 10-5-2013 and also admitted the suit transaction in their reply to the legal notice.
25. It is the defence of defendants that if at all the strange party came to execute Ex.P.2 agreement of sale as if Rajamma, the plaintiff ought to have taken identification of proof of that lady but he has not taken the same. Therefore, it is the allegation of defendant that plaintiff himself has brought a strange lady as if Rajamma to sign in place of real Rajamma. For such defence, P.W.1 has deposed in his evidence that one lady was brought by defendant Nos.1 to 7 to the Sub-Registrar office and introduced him that she is their sister and putting faith and confidence over defendant Nos.1 to 7, he thought that she might be real Rajamma and therefore, he did not ask for her identification proof. It is pertinent to note that if at all really, the strange lady was brought to the spot of the Sub-Registrar office, it is the duty of the Sub-Registrar to seek identification proof of each party to know whether such party is real person executing document or not and it is not the duty of the plaintiff. As discussed supra, the plaintiff being a third person to the 30 family of defendants may not knowing about who is Rajamma, wherein, the plaintiff has dealt with only defendant Nos.2 and 3 regarding sale negotiations of suit property. Therefore, when the defendant Nos.1 to 7 introduced the strange lady to the plaintiff as if their sister, the plaintiff might have under impression that she may be real Rajamma and on the basis of such trust and confidence, the plaintiff might not have taken identification of proof of Rajamma. Therefore, the defendant Nos.1 to 7 cannot blame the plaintiffs for inadvertence made by them, wherein, it is the primary duty of defendant Nos.1 to 7 to complain if a strange lady came the the spot to sign as if Rajamma, wherein, the defendant Nos.1 to 7 are well acquainted with their sister Rajamma to identify her. Therefore, even if for the sake of arguments, Ex.P.2 document was executed by some third person in place of Rajamma, subsequently real Rajamma by executing one more agreement of sale of suit property in respect of her share as per Ex.P.3 dated 10-5-2013 legalized Ex.P.2 document and that Ex.P.3 document relates back to the date of Ex.P.2 document and since the children of Rajamma consented for the execution of agreement of their mother by executing separate agreement as per Ex.P.4 dated 20-11-2013 it can be held that by virtue 31 of Exs.P.2 & P.4, documents, the Ex.P.2 document is renewed and there is novation of contract between plaintiff and defendant Nos.9, 10 and their mother and as such Ex.P.2 document coupled with Exs.P.3 and p.4 are legally enforceable documents.
26. In order to disprove the defence of the defendants and to prove his case, the plaintiff cross-examined D.W.1.(defendant No.3), and got marked document ad Exs.D.1 to D.9. Ex.D.1 is the copy of the Will Deed executed by Munivenkatappa dated 19-2-1997 which was registered on 12-6-1998. Ex.D.2 is the certified copy of death certificate of Munivenkatappa who died on 13-3-1997 and Ex.D.3 is the certified copy of the plaint of O.S.No.2841/1999 filed by Rajamma and her children for partition and separate possession in respect of their joint family properties. Ex.D.4 is the certified copy of amended plaint of O.S.No.2841/199. Ex.P.D5 is the certified copy of written statement of defendant Nos.8, 10,12,13 & 15 filed in O.S.No.2841/1999. Ex.D.6 is the certified copy of criminal complaint lodged by B.R.Chandrashekar S/o.Ramaiah , PSI, Jayanagar Police Station. Ex.D.7 is the certified copy of FIR of Jayanagar police station in Cr.No.169/2011, dated 10-5- 32 2011. Ex.D.8 is the certified copy of charge sheet filed by police in C.C.No.15802/2015 dated 10-5-2011. Ex.D.9 is the certified copy of order sheet of PCR No.17945/2011 by complainant Nagaraj and others against the accused, wherein, D.W.1 has clearly admitted that P.W.1 came the his house and offered to resolve dispute between his family members and accordingly, D.W.1 and his brothers and sisters discussed with P.W.1 and the defendant Nos.1 to 8 agreed to sell suit property in favour of the plaintiff for valuable consideration of Rs.2, 02,50,000/- (Two Crores Two Lakhs Fifty Thousand) and accordingly, agreement of sale came into force dated 15-10-2010.
27. It is further admitted by D.W.1 in the cross-examination that, defendant Nos.1 to 8 signed to such agreement of sale and the defendant No.3 identified his signature over Ex.P.2(agreement). So, the suggestion of plaintiff that defendant No.8 Rajamma has also signed the the agreement of sale dated 15-10-2010 on the very date is admitted by D.W.1. Therefore, in view of such admission by defendant No.3, his defence that the signature of Rajamma is forged and fabricated by impersonation is washed out. Therefore, on the basis of 33 such admission of D.W.1, it can be held that Rajamma also signed Ex.P.2 document agreement of sale on its date of execution personally and such document is not effected by fraud or impersonation.
28. D.W.1 further in his cross-examination admitted that Ex.P.2 agreement of sale is registered one but he came to know about its contents only after filing suit. If at all, really the defendant No.3(D.W.1) was particular about contents of that document before execution of the same, he should have insisted the plaintiff to show that document for his reference before signing that document but it appears that he has signed Ex.P.2 document blindly without knowing its contents. Therefore, when a person signs a document without applying his mind, law presumes that he has admitted the contents of that document.
29. In order to prove that, the Ex.P.2 document is effected by fraud, misrepresentation and impersonation, the burden is on the defendant Nos.1 to 8 to prove the same by adducing the reliable evidence on record but the defendant Nos.1 to 8 have not adduced any evidence to prove such act of forgery, misrepresentation and impersonation of plaintiff in respect of Ex.P.2 document. 34
30. It is not sufficient to plead defence of defendant in written statement unless and until it is proved in accordance with Provisions of Indian Evidence Act. A person who taken a particular defence the burden is on him to prove the same, but in order to prove the alleged fraud, misrepresentation and impersonation of execution of Ex.P.2 document, the defendants have not examined any independent witness and not produced any documentary evidence in that regard. On the other hand, the so called alleged criminal complaint filed before police by defendant No.8 Rajamma against plaintiff came to be withdrawn and Rajamma and her sons defendant Nos. 9 & 10 compromised the matter with plaintiff and executed Exs.P.3 and P.4 documents consenting to sell their share of property to the plaintiff. Therefore, the alleged fraud, misrepresentation and impersonation alleged to have effected while executing Ex.P.2 document is washed out by virtue of the overtact of defendant Nos.8 to 10 in executing Exs.P.3 and P.4 documents. So, also in view of admission of defendant Nos.1 to 7 in their reply to the legal notice regrading the suit transactions, the theory of defence of the defendants in respect of alleged forgery, misrepresentation and execution of Ex.P.3 document by impersonation washed out. Hence, 35 the defence of the defendants cannot be considered in view of such evidence on record.
31. It is the defence of the defendant Nos.1 to 8 that the plaintiff has not paid full amount of sale consideration as per Ex.P.2. It is defence of defendant No.1 that plaintiff paid only Rs. 10 lakhs to him and it is the defence of defendant No.8 that plaintiff has not paid any amount to her as sale consideration. The careful perusal of Ex.P.2 Agreement reveals that Rs.20 lakhs paid to defendant Nos.1 and 3 and Rs.3 lakhs to other defendants and Ex.P.3 reveals that Rs.15 lakhs paid by plaintiff to Rajamma. The defendant Nos.1 to 8 and Rajamma signed to Exs.P.2 and P.3. Hence, the contents of Exs.P.2 and P.3 are bonding on them and they cannot deny it. In order to disprove such allegation short payment. The defendants not placed any rebuttal evidence on record to prove alleged fraud, misrepresentation and act of impersonation. Simply pleading such defence in written statement is not helpful to their case unless placing evidence on record. Hence, the defendant Nos.1 to 8 cannot deny Exs.P.2 and P.3.
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32. It is further deposed by D.W.1 that when defendant went to the office of plaintiff, he came to know that plaintiff company running in loss and due to that plaintiff requested defendants to grant some time for the fulfillment of contract. In that regard to prove such defence the defendant No.3 has not produced any document. It is clearly admitted by D.W.1 in the cross-examination that in order to check whether the plaintiff company is in sound financial state or running in loss, he has not verified the Bank statement of accounts of plaintiff company or not verified in the office of the Registrar of Companies Office to know the financial status of plaintiff company. Therefore, without verifying such financial position of the plaintiff, the defendants cannot take defence that the plaintiff company was running in loss and therefore, the plaintiff has failed to perform his part of contract.
33. It is pertinent to note here that if at all really the plaintiff company was running in loss and the plaintiff was unable to pay the remaining balance sale consideration amount to the defendants, nothing prevented the defendants to issue legal notice to rescind (cancel) the contract and to forfeit the advance amount. D.W.1 has 37 clearly admitted in the cross-examination that the defendants have not issued legal notice to rescind the contract or forfeit the advance amount. Therefore, this admission on part of D.W.1 itself goes to show that in all probability, it is the defendants themselves postponed the performance of contract but not the plaintiff.
34. The plaintiff by virtue of issuing legal notice, as per Ex.P.5 called upon the defendants to receive the balance sale consideration amount and to come to Sub-Registrar office and execute the sale deed of suit property but the defendants have given evasive reply stating that they cannot execute agreement of sale of suit property on the ground that the Court has passed temporary injunction order in O.S.No.2841/1999 and Ex.P.2 suit agreement is barred by limitation etc., In order to prove that the Civil Court passed temporary injunction order preventing alienation of suit property in O.S.No.2841/1999, the defendant has not produced certified copy of such order before this Court. The defendant has produced only certified copy of plaint of O.S.No.2841/1999, whereas, the suit property of this present suit is one of the subject matter of schedule of O.S.No.2841/1999 but not 38 produced certified copy of the order sheet or Judgment of that suit. So also when the defendant Nos.9 & 10 filed a criminal case against plaintiff and defendant Nos.1 to 7 in respect of the alleged forgery, misrepresentation and concoction and creation of Will of Munivenkatappa and also in respect of fraud while execution of Ex.P.2 document by impersonation dated 15-10-2010, in view of execution of Ex.P.4 defendant Nos.9 & 10 admitted the claim of the plaintiff and waived their right to challenge the will of Munivenkatappa and also ratified the contract as per Exs.P.2 and P.3. Therefore, no any value can be attached to the evidence of defendant Nos.9 & 10 regarding filing criminal complaint against plaintiff and defendant Nos.1 to 7 and more over, it appears that in the said criminal complaint, the police filed 'B' report and in order to prove the alleged fabrication of the alleged will of Munivenkatappa and alleged fabrication of Ex.P.2 agreement of sale, effected by impersonation, the defendant Nos.9 & 10 not produced any order of the competent Court of Judicial Magistrate convicting the accused in that criminal case. Therefore, non production of such conviction order against the plaintiff and defendant Nos.1 to 7 as on today, the defence of the defendant Nos.9 & 10 that the suit document 39 Ex.P.2 is affected by fraud, misrepresentation and caused by impersonation cannot be accepted.
35. The careful perusal of Ex.D.7 the FIR and D.9 the certified copy of the order sheet of PCR No.1794/2011 filed before ACMM Court, Bengaluru goes to reveal that criminal case stands dismissed for want of proof. Therefore, defendant Nos.1 to 7 also not proved the criminal case against defendant Nos.9 & 10 as on today.
36. Therefore, in nutshell, the defendants admitted the original agreement of sale of suit property marked at Ex.P.2 followed by Exs.P.3 and P.4 renewal of contract and the only defence of defendant Nos.1 to 10 is that the plaintiff has not paid full amount of sale consideration. According to defendant Nos.1 to 7, they had received only Rs.48 lakhs as consideration amount out of Rs.2,02,50,000/- (Two Crores Two Lakhs Fifty Thousand) but not Rs.85,00,000/- (Eighty Five lakhs) as alleged by the plaintiff in his plaint. The only reasons for not settling the matter between plaintiff and defendants as per the deposition of D.W.1 is that Rajamma is claiming 1/3rd share in the entire sale consideration amount of suit property but the defendant Nos.1 to 7 are not ready to 40 allot 1/3rd to her share and they are ready to pay only 1/9th share in the consideration amount of suit property. Therefore, when the sister of defendant No.3 Rajamma is not accepting proposal of her brothers to receive 1/9th share but claiming 1/3rd share, the matter of specific performance was postponing from time to time and accordingly, there is delay in execution of sale deed by defendants in favour of plaintiff. Therefore, due to the internal dispute between the defendant Nos.1 to 8 particularly defendant Nos.1 to 4 and defendant No.8 and Rajamma, the matter is being delayed. Therefore, the plaintiff cannot be blamed for such delay caused in conclusion of the suit transaction for non performance of his part of contract.
37. In the cross-examination, D.W.1 has shown unawareness about the fact that he does not know whether Rajamma executed separate agreement of sale of suit property to the plaintiff dated 10-5- 2013. Therefore, by virtue of such unawareness an adverse inference can be drawn against the defendants. The defendant NO.3 has not denied such suggestion put to him but, he has shown ignorance about execution of Ex.P.3 document by Rajamma in favour of plaintiff. 41 Therefore, ignorance amounts to consent. Similarly, D.W.1 in his cross- examination shown unawareness regarding the fact that the children of Rajamma by name Chandramba and Chandrashekar entered into separate agreement of sale of suit property with plaintiff as per Ex.P.4, dated 20-11-2013 and to this suggestion also D.W.1 shown unawareness. Therefore, without denying such suggestion simply showing ignorance amounts to consent on his part. Therefore, adverse inference can be drawn against defendant Nos.1 to 8 in respect of Exs.P.3 nd P.4 document and it can be held that the sister of defendant Rajamma and her children ratified the original contract as per Ex.P.2 and renewed the contract by giving their common consent and as such, Ex.P.2 is enforceable under law.
38. Further, in the cross-examination, D.W.1 has deposed that he has not performed his part of contract, because, the plaintiff has not paid full amount of sale consideration. Therefore, in view of such deposition, defendant Nos.1 to 7 admitted to execute sale deed of suit property in favour of plaintiff after receiving the balance sale consideration amount. Therefore, in view of such admission of 42 defendants, the suit deserves to be decreed. Therefore, by issuing direction to the plaintiff to pay the legal share of the defendant Nos.1 to 10, the suit can be disposed of in accordance with law.
39. Before issuing directions to the plaintiff to pay the respective share of the defendant Nos.1 to 10, it is necessary to decide the legal share of the defendant Nos.1 to 10 as per law. If at all, the suit property is a joint family property or ancestral property of the defendant Nos.1 to 10, then the matter would have been decided as per Section 6 of the Hindu Succession Act, the shares of the co-parceners can be decided before amendment of that Section and after amendment of that Section. But, here the facts are entirely different. The property involved in this suit is neither ancestral property of defendants nor joint Hindu family of defendants but it is exclusive self acquired property of their uncle Munivenkatappa who has acquired suit property from CITB under registered Sale Deed which is admitted by the plaintiff and defendants. Therefore, during lifetime of Munivenkatappa who died issue less and unmarried, he had executed a will deed on 19-2-1991 and subsequently died on 13-3-1997 and according to him, Ex.D.1 i.e.,the 43 will deed of Munivenkatappa ultimately came to be registered on 12-6- 1998 after his death goes to reveal that Munivenkatappa has bequeathed suit property in favour of his nephews and niece ie., children of his brother Munirangappa who are defendant Nos.1 to 8 of this suit equally. Therefore, all the children of Munirangappa are entitled to get suit property to the extent of equal share. Munirangappa has got nine children ie., defendant Nos.1 to 8 and Rajamma. Therefore, all the nine children of Munirangappa are entitled to get equal share i.e., 1/9th share each. The sale consideration amount of suit property as per Ex.P.2 is Rs.2,02,50,000/- (Two Crores Two lakhs Fifty Thousand) out of which, Rs. 17 lakhs was given to defendant No.11 who was the earlier agreement holder of suit property i.e., purchaser to whom the defendant Nos.1 to 8 agreed to sell suit property as per the agreement of sale dated 27-09-2000. Therefore, by deducting that amount of Rs.17 lakhs in the above said total sale consideration amount the balance amount remained in the hands of the plaintiff is Rs.1,85,50,000/- and such amount of Rs.1,85,50,000/- can be divided among nine sharers i.e., children of Munirangappa. Therefore, each sharer gets amount of Rs.20,61,000/-. Out of total sale 44 consideration amount remained in the hands of the defendant Nos.1 to 10 amounting to Rs.1,85,00,000/- by virtue of Ex.P.2 already Rs.20 lakhs each was given to defendant No.1 Ramakrishna B.R., Defendant No.3 B.R.Shankar and Rs.15 lakhs was given to Rajamma as per Ex.P.3 and by deducting such amount, defendant No.1 B.R.Ramakrishna and his L.Rs are entitled to get Rs.61,000/- balance sale consideration amount and defendant No.3 B.R.Shankar is also entitled to get Rs.61,000/- balance sale consideration amount who has got equal amount with that of his brother B.R.Ramakrishna, whereas, B.R.Rajamma is entitled to get the balance sale consideration amount of Rs.5,61,000/-. The rest of the defendant by name B.R.Nagaraj, B.R.Jayamma, B.R.Parvathi, B.R.Rajeshwari, B.R.Jagadamba, B.R.Mangala Gowri who have received only Rs.3 lakhs each advance amount are entitled to get the remaining balance sale consideration amount of their share of Rs.17,00,061/- (Seventeen Lakhs Sixty One) each since all the children of B.R.Munirangappa are entitled to get equal share in the suit property as per the will of Munivenkatappa. The Counsel for the plaintiff has relied upon the citations reported in 1979 SC 63, wherein, it is held that the ordinary rule is that specific 45 performance should be granted and it can be denied only when equitable considerations point involved for refusal and the circumstances show that damages would constitute an adequate relief as held in Prakash Chandra Vs.Angadlal, AIR 1979 SC 1241.
40. Therefore, on the basis of such principle laid down by the Hon'ble Supreme Court if the plaintiff proves his case of specific performance, the suit requires to be decreed unless the Court comes to conclusion that in exceptional cases, the award of damages would be the adequate relief. In this suit, this Court is not of opinion that the defendants have made out grounds for refusal of relief of specific performance to the plaintiff but for the reasons of their internal dispute between defendant Nos.1 to 10, they themselves caused delay in performance of their part of contract and there is breach of contract on the part of defendants and hence, the plaintiff suit can be decreed. Hence, I answered issue Nos.1 to 4 accordingly and it is held that the plaintiff has paid only Rs.73 lakhs to the defendants but not Rs.1,08,00,000/- (One Crore Eight Lakhs) as alleged by him in his plaint.
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41. Issue No.5:- It is the case of the plaintiff that he was ever ready and willing to perform his part of contract but it is the defendants who have committed breach of agreement. The burden of proof of issue No.5 is on the plaintiff. In order to prove issue No.5, the plaintiff has produced Ex.P.5 document i.e., office copy of legal notice issued to defendants dated 15-3-2014 calling upon them to perform their part of contract and in order to prove service of such legal notice to defendants he has produced postal acknowledgements marked at Ex.P.6 in common which are served upon defendant Nos.1 to 5, 6, 8, 9 and 10. In pursuance of service of such legal notice, defendant Nos.1 to 5, 6, 8, 9 & 10 given their reply to notice as per Ex.P.7 and defendant No.8 given separate reply to such legal notice dated 4-4-2014 as per Ex.P.8 and the defendant Nos.9 & 10 given reply to notice dated 19-5- 2014 and defendant No.11 given reply to legal notice as per Ex.P.10. By virtue of all thee documents i.e., reply to the legal notice given by the defendants, they have admitted the suit transaction as per Ex.P.2 but contended that due to non payment of the balance sale consideration amount by the plaintiff and also in view of the grant of temporary injunction by Civil Court in O.S.No.2841/1999 and also for time barred 47 agreement they could not perform their part of contract. As could be seen from the documents produced from the defendants at Exs.D.3 to D.5, there is no any document coming forth in respect of grant of temporary injunction against the defendants 1 to 10 from alienating the suit property but the temporary injunction may be against some third party other than defendant Nos.1 to 10. Therefore, the reasons assigned by defendant Nos.1 to 10 in their reply notice that they are prevented from Court order of temporary injunction to perform their part of contract cannot be accepted. More over, there is no time fixed for performance of agreement in Ex.P.2 agreement of sale and the time is fixed 120 days after claim of the plaintiff. The plaintiff claimed performance of contract as per Ex.P.5, dated 15-3-2014. Therefore, since the original agreement of contract as per Ex.P.2 time is not the essence of the contract which can be adjusted as per the convenience of the parties depends upon fulfillment of all the conditions of settlement of a dispute between the parties, the defence of defendant that Ex.P.2 agreement is time bared cannot be accepted.
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42. In respect of one more defence taken by the defendants regarding fraud, misrepresentation in creating Ex.P.2 agreement of sale is already discussed by this Court supra while dealing with the above issues. Therefore, it needs no repetition. Hence, on the basis of such documents on record, the plaintiff has proved his readiness and willingness to perform his part of contract by virtue of Ex.P.5 legal notice and since the defendant No.1 has shown ignorance in his cross- examination that he does not know whether plaintiff company maintained details of its information about further development of its company in the website and also the further ignorance stating that D.W.1 does not know whether already two projects of construction of building by plaintiff are under progress etc., goes to reveal that he has not verified properly regarding financial condition of plaintiff company and he has not placed any material on record to prove that the plaintiff company has no capacity to pay remaining balance of sale consideration amount as on the date of issuance of Ex.P.5 legal notice. Therefore, on the basis of such ignorance shown by the defendant No.3 (D.W.1) by drawing adverse inference against defendants, it can be 49 held that the plaintiff was ever ready and willing to perform his part of contract. Hence, issue No.5 is answered in the affirmative.
43. Issue No.6:- It is the defence of the defendants that the suit is bad for mis joinder of causes of action in respect of three agreements dated 15-10-2010 as per Ex.P.2, 10-5-2013 as per Ex.P.3 and 20-11- 2013 as per Ex.P.4. In this regard, it is pertinent to note here the Provisions of Order 2 Rule 1 &2 of CPC, wherein, it deals with Provisions that as per Rule 1 every suit shall be as far as practicable be framed so as to afford a ground for final decision upon the subject in dispute to prevent further litigation. Therefore, in this suit, the plaintiff in order to avoid further litigations against defendant No.1 and against previous agreement holder defendant No.11 and also against defendant Nos. 9 & 10 and also against , their mother Smt.Rajamma included causes of action in the same suit as per Rule 1 of Order 2 and it is permissible under law and as such, suit is as per law.
44. As per Rule 2 of Order 2 of CPC, it is the Rule that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of causes of action and as per Sub Rule (2) of Rule 2 if the 50 plaintiff omits to sue in respect of any portion of his claim, he shall not be permitted subsequently to sue in that regard and as per Sub Rule (3) of Rule 2, if a person is entitled to more relief than one in the same suit in respect of same cause of action, he can seek all such reliefs in single suit and omitting to seek such relief except with the leave of Court bars future remedy. Therefore, the Joinder of defendant Nos.1 to 11 in this suit to seek common relief against them is permissible under law.
45. Regarding joinder of causes of action Rule 3 of Order 2 speaks as under:-
The plaintiff may unite in the same suit several causes of action against same defendant or different defendants jointly and the plaintiffs having several causes of action in which they are jointly interested against same defendant or different defendants unite such cause of action in the same suit.
Therefore, on the basis of such Rule of Order 2, the cause of action involved in this case against defendant Nos.1 to 7, as per Ex.P.2 dated 15-10-2010 and cause of action against Smt.Rajamma in respect to Ex.P.3 dated 10-5-2013 and cause of action against defendant Nos. 9 & 10 as per Ex.P.4 dated 20-11-2013 can be united together and on 51 the basis of such Provisions of Law, the joinder of causes of action in single suit is just and proper one. Hence, the suit is maintainable.
Therefore, I answered issue No.6 in the negative.
46. Issue No.7:- The defendants taken defence that the suit is barred by limitation. According to defendant Nos.1 to 7, the first agreement of sale came into existence as per Ex.P.2, dated 15-10-2010 and limitation started from that date and the suit is not filed within three years from that date. Hence, it is the defence of defendant Nos.1 to 7 that the suit is barred by limitation. In this regard, it is pertinent to note here that the careful perusal of Ex.P.2 reveals that the parties have not fixed time for performance of contract and time is not essence of the contract. There is recital of Ex.P.2 agreement dated 15-10-2010 is that:-
The defendants shall execute registered sale deed of suit property within 120 days from the date of the claim made by the plaintiff after getting the documents ready for registration of sale deed as per law.
47. It is to be noted that, till date of issuing legal notice by the plaintiff, the internal dispute between the defendants regarding their 52 claim is not settled. Therefore, as per the pleadings of the plaintiff and documentary evidence placed by him on record, he was insisting the defendants time and again to execute the sale deed of the suit property and the defendants postponed the same on one or the other grounds by filing some proceedings before the Court i.e., O.S.No.2841/1999 for partition and O.S.No.768/2013 for declaration that the suit agreement of sale is null and void and not binding on the plaintiff and also by filing criminal complaint against the plaintiff and other defendants as per Ex.D.6 and FIR filed by the police as per Ex.D.7 and the charge sheet filed by the police as per Ex.D.8 and the order passed by ACMM Court, as per Ex.D.9 etc. Therefore, all these legal proceedings prevented the plaintiff from getting absolute registered sale deed of suit property in time and finally after clearance of all legal hurdle, he has issued legal notice as per Ex.P.5 calling upon the defendants to execute registered sale deed of suit property and since the time is not essence of contract and since the terms and conditions of Ex.P.2 sale agreement is to execute registered sale deed within 120 days from the date of claim of the plaintiff, the suit filed by the plaintiff is within limitation period. 53
48. The Counsel for the plaintiff has produced some citations and the second citation furnished by the plaintiff reported in 2020 SC (7) page 460, wherein, it is held that if time is not the essence of contract and if specific date of execution of sale deed is not mentioned in agreement of sale, the limitation period starts from the date of claim of the plaintiff to perform part of contract by defendant i.e., from the date of issuance of legal notice by the plaintiff.
49. Therefore, on the basis of above citation, it is clear that as per Ex.P.5 legal notice, the case on hand falls under second part of Article 54 of Limitation Act and the suit can be filed within three years from the date of claim of the plaintiff for specific performance by issuing legal notice and merely, the legal notice in this case was issued by the plaintiff on 15-3-2014 and the suit is filed on 14-10-2014. Therefore, the suit is filed within limitation period of three years. Hence, the suit is maintainable. Hence, I answered issue No.7 in the negative.
50. Issue No.8:- On the basis of my findings on issue Nos.1 to 7, the plaintiff is entitled for specific performance of contract. Hence, I answered issue No.8 in the affirmative.
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51. Addl.Issue No.1:- It is the defence of the defendants that the plaintiff has not joined all the Managing Directors of its company who are necessary parties to the suit. The burden of proof of this issue is on the defendants and in order to prove such issue, the defendants have not placed any evidence on record to prove how many Directors are working in plaintiff's company apart from one of its Director by name Sri. Ramanlal Shah. In this connection, the defendants have not placed any evidence on record. Therefore, the defendants failed to prove their burden as per the additional issue No.1. Simply taking a bald contention in the written statement without proof cannot be considered as proof of their case unless they discharge their burden by placing cogent and convincing evidence on record.
52. In the cross-examination, D.W.1 he has clearly admitted that D.W.1 is deposing on behalf of himself and other defendants and further shown ignorance about the fact that he does not know whether P.W.1 is managing Director of plaintiff's company or not and further deposed that he has not verified as to who are the Managing Directors of plaintiff's company. Such being the deposition of D.W.1, who has no 55 any knowledge about the internal administration of plaintiff's company, without pleading specific case, taken bald contention and without placing evidence in respect of such defence bald contention of defendant cannot be accepted. Hence, it can be held that on the basis of Ex.P.1 produced by P.W.1 it can be held that P.W.1 is one of the Managing Director of the plaintiff's company authorised to file the suit on behalf of plaintiff company on the basis of the resolution passed by the Board of Directors of plaintiff company as per Ex.P.1. Hence, I answered additional issue No.1 in the negative.
53. Additional issue No.2:- It is the defence of defendants that the suit is bad for mis-joinder of defendant No.9, 10 and 11. It is pertinent to note here that as per Ex.P.2, defendant Nos.1 to 7 are the parties to the agreement of sale and as per Ex.P.3, the mother of defendant Nos.9 and 10 Smt.Rajamma is the party to the second agreement of sale of suit property with plaintiff company and as per Ex.P.4 after the death of Rajamma her L.Rs that is her children are the parties to the third agreement of sale with plaintiff. Therefore, the defendant Nos.9 & 10 and their mother and defendant No.11 being the 56 previous agreement holder of suit property who has agreed to purchase suit property from defendant Nos.1 to 7 being necessary parties to the suit against whom, there is cause of action for the plaintiff. The defendant Nos.9, 10 and 11 are necessary parties to the suit and the defendants failed to prove how they are not necessary parties to the suit. Therefore, the suit is not bad for impleadment of defendant Nos.9, 10 & 11. Hence, I answered additional issue No.2 in the negative.
54. Additional issue No.3:- It is the defence of the defendant Nos.1 to 7 that the court fee paid by the plaintiff is not proper and correct and as such, the suit is not maintainable. The burden of proof of such issue is on the defendants but they have not proved their initial burden as to how the court fee paid by the defendants is not proper and correct. Taking a bald contention by defendants without its proof cannot be considered.
55. As per Section 40 Karnataka Court Fee and Suits Valuation Act, it is the Provision of Law that in case of suit for specific performance of contract, the court fee is required to be payable by the plaintiff on the basis of the consideration amount shown in the 57 agreement of sale. The careful perusal of Ex.P.2 reveals that the total sale consideration amount in respect of suit property is Rs.2,02,50,000/- (Two Crores Two lakhs fifty thousand). Therefore, as per schedule-I of Karnataka Court Fees and Suits Valuation Act, Article 1 Sub Article 16 goes to reveal that if the total sale consideration amount is more than Rs.80 (eighty) lakhs then the court fee required to be paid by the plaintiff is Rs.2,04,7,125/-. + ½ % of the amount exceeding Rs.80,000/- which comes to Rs.3,08,000/-. The careful perusal of the original plaint of this suit goes to reveal that the plaintiff has paid court fee of Rs.3,08,375/- and the office of this Court has properly calculated the court fee while registering the suit and accordingly, the court fee paid by the Court is proper and correct. The defendant has not proved by placing any evidence on record as to how the Court fee paid by the plaintiff is not proper and correct. Hence, I answered additional issue No.3 in the negative.
56. Additional issue No.4:- It is the defence of the defendants that the suit is hit by Section 10 of CPC and as such, it is not maintainable. The careful perusal of Section 10 of CPC goes to reveal 58 that, no person shall proceed with trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between the parties under whom they or any of them claim litigating under the same title whether such suit is pending in the same court or other court in India having jurisdiction to try the suit.
57. On the basis of the above Provision of Law, it is to be noted here that in order to bring the suit under Section 10 of CPC, or to hit the suit under Scion 10 of CPC, the present suit and previous suit must be between same parties and in respect of same properties and in respect of the same relief and the issues involved in both the suits must be one and the same but such Provisions of Section 10 of CPC is not attracted by this suit. Because, in the previous suit O.S.No.2841/1999 wherein Rajamma filed a suit for partition, the defendants are her brothers and her sisters wherein, the plaintiff is not party to that suit and even if for the sake of argument, the plaintiff is impleaded as one of the party, he is not necessary party to suit for partition because he is not joint family member of the defendants. Similarly, the relief sought for by the 59 plaintiffs in O.S.No.2841/199 and O.S.No.768/2013 are different. In O.S.No.768/2013, the plaintiff (defendant Nos.1 to 7 of this suit) sought for relief of declaration of cancellation of agreement of sale of suit property but in this present suit, the relief claimed by the plaintiff is for specific performance of contract. Therefore, the reliefs in both the suits are different but not one and the same, as per Section 10 of CPC. Then thirdly, the issues involved in O.S.No.2841/199 are in respect of the legal right of the plaintiff to get her share by way of partition in the joint family properties and the issues involved in O.S.No.768/2013 are in respect of proof of the case of the plaintiff regarding creation and concoction of agreement of sale of suit property under fraud, misrepresentation and impersonation etc., but the issues involved in the present suit are regarding the specific performance of contract to prove the agreement of sale of suit property by plaintiff against the defendants. Therefore, the issues involved in all these three suits are different. Hence, this suit is not hit by Section 10 of CPC and as such, this issue is answered in the negative.
58. Additional issue No.5:- So far as additional issue No.5 is 60 concerned, already the findings in that regard are discussed while giving finding on issue Nos.1 to 4. Therefore, it needs no repetition but at the cost of repetition in short, it is to be noted here that when the defendant Nos.1 to 10 taken the defence that the suit document Ex.P.2 is concocted and created by the plaintiff by way of impersonation and forgery, the heavy burden is casted on the shoulders of the defendants to prove the same. In order to prove such issue, apart from taking their bald contention, the defendant Nos.2 to 10 have not placed any cogent and convincing evidence on record to prove the alleged fraud, misrepresentation and forgery. They have not produced any documents in that regard and not examined any independent witnesses and even third defendant who got examined himself as D.W.1 has not placed evidence on record as to how Ex.P.2 document is concocted and created by plaintiff. Therefore, in the absence of any evidence placed by the defendants in that regard, additional issue No.5 is answered in the negative.
59. Issue No.9:- On the basis of the above reasons and in the result, I proceed to pass the following:-
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ORDER Suit of the plaintiff is hereby decreed with costs. The defendant Nos.1 to 11 are hereby directed to execute registered Sale Deed of suit property in favour of plaintiff by receiving the remaining balance sale consideration amount from the plaintiff within two months from the date of this Judgment.
The plaintiff is directed to pay the remaining balance sale consideration of amount of Rs.61,000/- each to defendant No.1 - B.R.Ramakrishna and B.R.Shankar and to pay the remaining balance sale consideration to defendant Nos. 9 & 10 i.e., children of B.R.Rajamma by name Chandramba and Chandrashekar amounting to Rs.5,61,000/- and to pay the remaining balance consideration amount of R.17,61,000/- each to defendant No.2 B.R.Nagaraj, defendant No.4 B.R.Jayamma, defendant No.5 B.R.Parvathi, defendant No.6 B.R.Rajeshwari, defendant No.7 B.R.Jagadamba and 62 defendant No.8 B.R. Mangala Gowri.
If the defendant fails to execute registered sale deed of suit property then the plaintiff is directed to deposit such remaining sale consideration amount in the office of the Court before getting execution of decree in accordance with law.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed and typed by her and then corrected and pronounced by me in the open court on this the 4 th day of November 2022) (M.B.KULKARNI) XXXV Addl.City Civil & Sessions Judge, Bengaluru ANNEXURE Witnesses examined on behalf of the plaintiff.
P.W.1 : Sri.Ramanlal Shah 63 Witnesses examined on behalf of the defendants. D.W.1: Sri.B.R.Shankar Documents marked on behalf of the plaintiff. Ex.P.1 : Copy of the authorization letter Ex.P.2 : Sale Agreement dated 15-10-2010 Ex.P.3 : Sale Agreement dated 10-5-2013 Ex.P.4 : Sale Agreement dated 20-11-2013 Ex.P.5 : Copy of the legal notice Ex.P.6 : Seven postal acknowledgments Exs.P.7 to P.10 : Copies of reply Ex.P.11 : Postal cover of B.R.Chandrashekar Ex.P.12 : Brochures Documents marked on behalf of the defendants. Ex.D.1 : True copy of the Will dated 19-2-1997 Ex.D.2 : Certified copy of Death Certificate of Munivenkatappa Ex.D.3 : Certified copy of plaint in O.S.No.2841/1999 64 Ex.D.4 : Certified coy of amended plaint in O.S.No.2841/1999 Ex.D.5 : Certified copy of written statement in O.S.No.2841/1999 Ex.D.6 : Certified copy of the complaint dated 10-5-2011 Ex.D.6 : Certified copy of the complaint dated 10-5-2011
Ex.D.7 : Certified copy of the FIR in Cr.No.169/2011 Ex.D.8 : Certified copy of charge sheet in C.C.No.15802/2015 Ex.D.9 : Certified copy of order sheet in PCR No.17945/2011 (M.B.KULKARNI) XXXV Addl.City Civil & Sessions Judge, Bengaluru