Bangalore District Court
K. Gopal Raju vs M/S Synergy Holding on 1 February, 2022
KABC010213222012 TITLE SHEET FOR JUDGEMENTS IN SUITS
IN THE COURT OF V ADDL.CITY CIVIL COURT
AT BENGALURU
(CCH.No.13)
Present: Sri. C.D. KAROSHI, B.A., LL.M.
V ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU
Dated this the 1st day of February, 2022
O.S. No.1383/ 2012
C/w
O.S. No.7947/2012
Cause title in O.S. No.1383/2012
PLAINTIFF: : K. Gopal Raju,
S/o Late A.S. Kupparaju,
Aged about 60 years,
R/at No.104, R.V. Layout,
Kumarapark West Extension,
Bengaluru-20.
(By Sri.ABP Advocate)
/VS/
DEFENDANTS: 1. M/s Synergy Holding,
A Partnership Firm
with its office at No.3/13,
10th Floor, Tower Block,
Unity Buildings,
J.C. Road,
Bengaluru-02.
Rep. by its managing partner
Mr. V. Srinivas Raju
2. V. Srinivas Raju,
S/o Late Varada Raju,
Aged about 53 years
3. Goutham.S. Varad,
S/o Srinivas Raju,
Aged about 29 years
4. Shruti.S. Raju,
D/o Srinivas Raju,
Aged about 27 years
2
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O.S. No.7947/2012
Defendants 2 to 4 are
R/at No.12, 10th Main Road,
Rajmahal Villas Extension,
Sadashivnagar,
Bengaluru-80.
5. M/s Unnati Projects Ltd.,
A Company registered under the Companies
Act, Having its office
At No.No.3/13,
10th Floor, Tower Block,
Unity Buildings,
J.C. Road,
Bengaluru-02.
Rep. by its managing director
Mr. V. Srinivas Raju
(By Sri. YKNS, advocate)
Date of Institution of the 16/02/2012
suit
Nature of the suit Suit for declaration and injunction
Date of Commencement of 20/03/2014
recording of evidence
Date on which judgment 01/02/2022
was Pronounced
Total Duration Year/s Month/s Day/s
09 11 15
Cause title in O.S. No.7947/2012
PLAINTIFFS: 1. M/s Synergy Holding,
A Partnership Firm
with its office at No.3/13,
10th Floor, Tower Block,
Unity Buildings,
J.C. Road,
Bengaluru-02.
Rep. by its managing partner
Mr. V. Srinivas Raju
3
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O.S. No.7947/2012
2. Sri. V. Srinivasaraju,
S/o Late Varadaraju,
Aged about 57 years,
R/at No.12, 10th Cross,
RMV Extension, Sadashivanagar,
Bengaluru-80
3. Smt. Revathi.S. Raju,
W/o Sri. V. Srinivsaraju,
Aged about 52 years,
R/at No.12, 10th Cross,
RMV Extension, Sadashivanagar,
Bengaluru-80
(By Sri. YKNS, advocate)
/VS/
DEFENDANTS: 1. K. Gopalaraju,
S/o Sri.A.S. Kupparaju,
Aged about 65 years
2. Pradeep.G. Raju,
S/o Sri. K. Gopalaraju
Both are R/at No.104, R.V. Layout,
Kumara Park West Extension,
Bengaluru -20.
(By Sri.ABP Advocate)
Date of Institution of the 08/11/2012
suit
Nature of the suit Suit for Specific Performance/Refund of
advance amount
Date of Commencement of 20/03/2014
recording of evidence
Date on which judgment 01/02/2022
was Pronounced
Total Duration Year/s Month/s Day/s
09 02 23
( C.D.KAROSHI )
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
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O.S. No.7947/2012
-: COMMON JUDGEMNT :-
The plaintiff in O.S. No.1383/2012 has sought the
relief of declaration and direction to the defendants pertain to
agreement to sell dated 16/11/2009 and original sale deed
dated 22/08/1968 in respect of the suit schedule property
along with cost of the suit.
The plaintiffs in O.S. No.7947/2012 have sought the
relief of specific performance of contract against the
defendants and in the alternative to refund entire advance
amount together with interest and cost of the suit.
2. Records reveal that in view of the orders on I.A.
No.II dated 12/12/2013 passed by this court in O.S.
No.7947/2012 in order to conserve judicial time the said suit
came to be clubbed with O.S. No.1383/2012 pending before
this court and both the parties were being directed to lead
their evidence in O.S. No.1383/2012 and to pass common
judgment in accordance with law.
3. The brief facts of O.S. No.1383/2012 are as
under :
That, the plaintiff is the owner in possession of the
property bearing Sy.No.5 measuring 8202 square meters
situated at Agrahara Dasarahalli, Magadi Road,
Yeshwanthpura Hobli, Bengaluru North Taluk now numbered
as municipal No.14, 5th Main Road, Agarahara, Dasarahalli,
Bengaluru.
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O.S. No.7947/2012
Further it is averred that the plaintiff purchased the
schedule property along with one V. Varadaraju under a
registered sale deed dated 22/08/1968 which was registered
on 25/09/1969 in the office of Sub-registrar, Srirampuram,
Bengaluru. Further after the death of said Varadaraju, in a
partition took place amongst the plaintiff and two sons of
Varadaraju dated 08/03/1979 the schedule property was
allotted to the plaintiff, but the original sale deed is in the
possession of 5th defendant who said to have collected the
same in connection with proposed agreement to sell dated
16/11/2009, as such defendant No.1 and 5 are liable to
return the said documents to the plaintiff.
Further it is averred that the 2 nd defendant has been
representing to him and other, the partners of the defendant
No.1 are himself and his children i.e. defendant No.3 and 4
and defendant No.5 is the company established by defendant
No.2 wherein he is the managing director. The defendants
evinced interest to purchase the schedule property,
accordingly in the letter dated 14/11/2008 the 1 st defendant
indicated the terms of the transaction and paid a sum of Rs.2
Crores as advance out of total consideration of
Rs.7,84,08,000/-, accordingly after the other terms were
settled an agreement to sell dated 16/11/2009 came to be
entered between the plaintiff and 1 st defendant which was also
registered in the office of senior sub-registrar, Rajajinagar,
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O.S. No.7947/2012
Bengaluru, wherein the 1st defendant offered to pay the
balance sale consideration of Rs.5.84 crores by way of six post
dated cheques as stated in para 6 of the plaint.
Further it is averred that as per clause 8 of the
agreement in the event of default on the part of the purchaser
defendant in making the payment within the agreed time as
per Clause 1, the plaintiff shall have unfettered right to
cancel the agreement by issuing notice to the defendant and
on such cancellation the vendor shall forfeit the consideration
amount and shall refund balance of 75% of the consideration
amount within 45 days from the date of issuance of notice or
in the alternative if the vendor has made payment of the
amount for purchase of lands or any other immovable
property, then the vendor plaintiff shall refund balance of
advance, only after receipt of sufficient amount of advance on
the sale of the schedule property and not until then.
Further it is averred that, in clause 9 of the said
agreement it is stated that time is the essence of the
agreement, accordingly the entire consideration as stated in
Clause 1 had to be discharged according to the said clause
without any delay for any reason. Further out of the aforesaid
six cheques issued by the 1 st defendant one was cleared, but
five other cheques were returned for insufficient funds as per
the endorsements with particulars stated in para 10 of the
plaint.
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O.S. No.7947/2012
Further it is averred that the 1 st defendant committed
breach of payment schedule in terms of clause 1 of the
agreement to sell dated 16/11/2009, by letter dated
05/01/2011 addressed to the 1st defendant, the plaintiff
cancelled the agreement dated 16/11/2009 and offered to
pay back the 75% of the advance amount within 45 days from
the date of notice after forfeiting the 25% of the amount as per
the Clause 8 of the agreement. The plaintiff further called
upon the defendant to return original sale deed dated
22/08/1968 pertaining to the schedule property and other
three properties and to take back original pay order of Rs.2
Crores. Further it is averred that in view of the registered
agreement to sell dated 16/11/2009 the plaintiff has lost
several other offers of purchase and joint development
projects and thereby suffered great financial loss and mental
agony, therefore plaintiff is entitled to and he is justified in
invoking the forfeiture clause in the agreement to sell dated
16/11/2009 by way of compensation towards monetary loss
and mental agony.
The 1st defendant after committing the default in
payment sent pay order along with letter dated 11/12/2010,
but the plaintiff had not realized the same since it was
purchased by a third party, accordingly the plaintiff gave
appropriate reply stating that agreement to sell dated
16/11/2009 is cancelled on valid grounds, but the defendant
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O.S. No.7947/2012
in his legal notice dated 17/11/2011 claimed that a sum of
Rs.5.5 crore is paid to the plaintiff in which alleged payment
of Rs.50 lakhs to Pradeep.G. Raju i.e. son of plaintiff is
included. Further when the plaintiff was called upon to
receive the alleged balance consideration of Rs.2,34,00,000/-
and to execute the sale deed in favour of 1 st defendant, the
plaintiff gave reply by denying the claim stating that the said
agreement to sell is already cancelled on 05/01/2011. The
plaintiff also caused a public notice in daily news papers
about cancellation of agreement to sell notifying that the 1 st
defendant had no right, title or interest over the schedule
property, therefore if any party had entered in to a JDA or
agreement in question the same is not binding. But the 2 nd
defendant states that he has made commitments and
insisting on performance which shows that the defendants
have entered into agreements with some third parties in
respect of the schedule property.
Further in a daily news paper dated 29/11/2011 a third
party caused a public notice stating that 1 st defendant has
entered in to memorandum dated 11/12/2010 under which
there is an agreement to purchase the schedule property,
accordingly plaintiff issued a reply dated 03/12/2011 to the
counsel who caused the public notice. Further the 1 st and 2nd
defendants did not respond to the letters dated 20/11/2011
and 26/12/2011 respectively issued by the plaintiff,
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O.S.No.1383/2012
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O.S. No.7947/2012
therefore plaintiff prepared to deposit Rs.2 crore when the 1 st
defendant executes the Deed of Cancellation in respect of
agreement to sell dated 16/11/2009 and to return original of
the title documents by executing Deed of Cancellation before
the sub-registrar Rajajinagar on 05/01/2011with an offer to
refund a sum of Rs.3.04 crores and in default by the 1 st
defendant the said amount will be dedicated to the Prime
Ministers' Relief Fund. This being the fact the defendants
failed to respond to the plaintiff for registering the Deed of
Cancellation of agreement to sell dated 16/11/2009, therefore
plaintiff has filed the present suit. Cause of action arose to
file the suit as stated in para 21 and 22 of the plaint. On
these grounds prayed for decreeing the suit.
4. The defendants appeared in O.S. No.1383/2012 and
filed written statement contending that suit of the plaintiff is
devoid of merits and deserves to be dismissed in limine. The
averments made in para 3 of the plaint is admitted as true.
The averments made in first part of para 4 of the plaint is
true and correct, but remaining part is denied as false.
Further contend that as per the claim of the plaintiff the 2 nd
defendant had taken the sale deed dated 22/08/1968 for the
purpose of verification by his advocate in connection with
proposed agreement to sell does not appeal to the common
sense of a ordinary prudent man as true. The very document
under which the late father of 2nd defendant acquired the
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O.S. No.7947/2012
properties along with the plaintiff and thereafter 2 nd defendant
got his share under a partition effected way back in the year
1979 between the plaintiff and 2nd defendant and his brother
as such there was no occasion for the 2 nd defendant to take
original document for the purpose of verification. Further
contend that original document was handed over to the 2 nd
defendant by the plaintiff for the reason that the plaintiff had
already received a substantial sum of money towards the
advance sale consideration and 2nd defendant had also spend
huge sum towards litigation in respect of the schedule
property. The averments made in para 5 and 6 of the plaint
are partially true.
Further contend that the 1st defendant admits issuance
of six post dated cheques as referred in Clause 1, but the
same were issued at the instance of plaintiff as it was agreed
between the parties that plaintiff shall not deposit the same
unless 1st defendant inform about the same and it was the
clear understanding between the parties, but the plaintiff did
not choose to issue any notice to the 1st defendant regarding
alleged dishonour of cheques and kept quiet without
knowledge of the 1st defendant with an oblique intention of
setting up a ground for cancellation of agreement despite
receipt of almost half the sale consideration amount.
11
O.S.No.1383/2012
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O.S. No.7947/2012
With regard to the averments made in para 8 of the
plaint pertains to clause 8 of the agreement is concern the
said clause was inserted by the plaintiff with an ulterior
motive to make a wrongful gain out of the real, however
plaintiff could enforce the said clause only after failure or on
default of 1st defendant to pay balance sale consideration after
demand from the plaintiff before the court, but the plaintiff
has kept quite all along without any demur regarding
dishonour of cheques and decided to cancel the agreement
without any notice.
Further the plaintiff had received a sum of Rs.2 crore
much prior in date to the date of agreement and thereafter
also received a sum of Rs.1 crore as stated in para 7 of the
plaint and in addition, has also received Rs.50 lakhs. Further
it has not been agreed that time is essence of the contract.
Further the contents of para 11 of the plaint are baseless and
untenable under law. Further despite having knowledge
about the interest created in the suit schedule property in
favour of M/s PIUS Jhelum Traders and Developers Pvt. Ltd.,
the plaintiff has not chosen to make it party to the suit,as
such the suit is liable to be dismissed for non joinder of
necessary parties. The contents of para 11(a) of the plaint are
all false and baseless. The plaintiff has not come to the court
with clean hands.
12
O.S.No.1383/2012
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O.S. No.7947/2012
With regard to contents of para 12 of the plaint is
concern the plaintiff has deliberately not realized, so if the
reason for not realizing the pay order annexed with letter
dated 11/12/2010 was for the same being not in the
stipulated time, if that being the case the plaintiff would not
have received the payment towards the cheque bearing
No.703101 for Rs.1 crore as averred in para 7 of the plaint.
So 1st defendant unnecessarily kept on corresponding the
plaintiff and he gave appropriate reply stating that
agreement of sell is cancelled on valid grounds, the defendant
mischievously deposited Rs.2 crores in the account of plaintiff
with Corporation Bank which exhibits the attitude and
conduct of the plaintiff so as to exert more pressure upon the
defendants to part with more money than what was agreed
under the agreement.
The contents of para 14 of the plaint are baseless and
untenable under the law. Further contend that in the said
para plaintiff has not denied payment of Rs.50 lakhs received
by his son but states that he does not have knowledge and
states that same is not relates to the agreement to sell in
question which establishes the conduct and intention of the
plaintiff, so if the plaintiff was genuine in his stand there was
no reason for him to wait till 05/01/2011 to allegedly cancel
the agreement to sell. Further if the time is the essence of
contract then the plaintiff ought to have cancel the agreement
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O.S. No.7947/2012
for sale as soon as the first cheque is returned unpaid on
29/06/2010 or at the most on return of the last cheque on
09/11/2010. The averments made in para 15 of the plaint
regarding causing public notice in daily news papers about
cancellation of agreement are also baseless and untenable in
the eye of law. Further the averments made in para 16, 17,
20 and 21 of the plaint are self serving statements and
untenable under law including cause of action for the suit.
The averments made in para 18 of the plaint are also
baseless, self serving statements and untenable under the
law, as the plaintiff after a lapse of nearly 4 years from
receiving more than Rs.2.5 crores + Rs.1 crore more on
04/12/2009 and Rs.2 crores further more on 08/12/2011 as
advance sale consideration and having utilized the same for
all these years has come up with a proposal to deposit a
portion of the same on the condition of cancellation of
agreement by the defendants which is unfair and
unacceptable under law. With regard to the averments made
in para 19 of the plaint shows the plaintiff has made all out
efforts to coerce and pressurize the defendants to accept his
untenable demands.
Further contend that when the plaintiff had lost all
hopes and was not in a position to fight for his right against
BDA for protecting his property, the 2 nd defendant who is none
other than the nephew of the plaintiff come forward to help
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O.S. No.7947/2012
the plaintiff in finding a purchaser to the property, but due to
the action of the BDA no one ventured to take risk. Further
the BDA had acquired the property as such plaintiff had no
right to enter in to agreement to sell, accordingly the 2 nd
defendant made all arrangements to file W.P. No.18676/2007
on 26/11/2007 challenging the notification and action of the
BDA which was allowed on 24/03/2008.
Further the BDA filed writ appeal No.1070/2008 dated
09/07/2008 against the plaintiff challenging the order passed
in W.P., wherein though the plaintiff received notice but the
same was forwarded to the 2nd defendant to defend the same
at his cost. Further contend that, on 18/05/2007 the BDA
forcefully took possession of the property by demolishing the
construction standing thereon which could be witnessed from
the article published in the Deccan Herald Newspaper dated
19/05/2007. When illegally and forcibly took possession of
the property plaintiff was desperately trying to sell the
property to the prospective purchasers at Rs.300/- square
feet which was pleased to dismiss the writ appeal filed by BDA
by its order dated 26/09/2008.
Further contend that the BDA challenged the order
dated 26/09/2008 dismissing the writ appeal before the
Hon'ble Supreme Court by filing Special Leave Petition (SLP)
bearing CC No.7417/2009 and the 2nd defendant made
arrangements to defend the order under challenge before the
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O.S. No.7947/2012
Hon'ble Supreme Court at his cost and had borne all the
expenses for the litigation at all courts and the plaintiff has
spent nothing and on 17/09/2009 the Supreme Court also
dismissed the SLP and thus the orders passed by the Hon'ble
High Court in writ petition and writ appeal became final.
Further contend that, on 16/11/2009 agreement to sell
was entered in to between the parties on the matter being
decided by the Hon'ble Apex Court, however, due to
inadvertence in preparation of document the above sum of
Rs.50 lakhs paid to Mr. Pradeep G. Raju son of the plaintiff
could not be incorporated in the agreement for sale dated
16/11/2009, thereafter on 04/12/2009 a sum of Rs.1 Crore
was paid to plaintiff towards part payment of the balance sale
consideration.
Further contend that, till the defendants entered in to a
memorandum of understanding with M/s PIUS Jhelum
Traders and Developers Pvt. Ltd., on 11/12/2010 there was
absolutely no differences between the plaintiff and the
defendants and when the plaintiff came to know about the
defendants entering MOU he started raising one or the other
issue and at the first plaintiff refused to receive the pay order
dated 08/12/2010 for Rs. 2 Crores on the pretext that he will
receive the same only after getting clarification on the tax
payable on capital gains.
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O.S. No.7947/2012
Further contend that, plaintiff caused a letter dated
05/01/2011 communicating the fact that he has unilaterally
cancelled the agreement to sell and when the 2 nd defendant
questioned his action, plaintiff assured the 2 nd defendant of
proceeding further with the sale transaction after getting
clarification on capital gains and obtained the opinion dated
11/02/2011. Further it is very clear from the above facts that
the transaction between the plaintiff and defendants is
beyond the terms of agreement to sell dated 16/11/2009 and
now plaintiff cannot unilaterally cancel the agreement on
flimsy grounds.
Further contend that, the defendants have already paid
a substantial sum of Rs.5.5 crores to the plaintiff out of the
total sale consideration of Rs.7.84 crores and the plaintiff has
enjoyed the said sum and thereafter has filed the present suit
which is not only bad in law and on facts but also unethical.
Further contend that, the plaint memorandum running
contrary to the facts set out herein above which are not
specifically traversed herein are denied as false and baseless,
as such viewed from any angle the plaintiff deserves no relief
and there are no bona fides on the part of the plaintiff in filing
the suit and the suit is vexatious and is liable to be dismissed
with costs.
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O.S. No.7947/2012
Further the suit of the plaintiff is premature and highly
misconceived as the plaintiff has not issued any notice for the
alleged cancellation of the agreement of sale dated
16/11/2009 on the ground that the cheques issued by the
defendants under the said agreement have been returned
unpaid. The defendants have been always and even now are
ready and willing to perform their part of the obligations
under the agreement and to purchase the property by paying
the balance sale consideration as agreed to between the
parties. The plaintiff has committed breach of the agreement
and plaintiff never expressed his desire or intention to refuse
to sell the property till he issued the notice as mentioned
above. Further in view of the refusal by the plaintiff to
complete the sale transaction the defendants reserve their
right to file a separate suit for specific performance of the
agreement and to complete the sale transaction and for other
relief. On these grounds prayed for dismissal of the suit
with exemplary costs.
5. The brief facts of O.S. No.7947/2012 are as
under :
That 1st plaintiff is a registered partnership firm and
plaintiff No.2 and 3 are the partners. The 1 st defendant is the
owner of the land bearing Sy.No. 5 measuring 8202 square
meters situated at Agrahara Dasarahalli village,
Yeshwnathapura Hobli, Bengaluru North Taluk, bearing
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O.S. No.7947/2012
municipal No.14, 5th Main Road, Agrahara Dasrahalli village,
Bengaluru. Further it is averred that the defendant No.1 Sri.
V. Varadaraju, father of V. Srinivas Raju and plaintiff No.2
purchased the schedule property along with other three
properties under a registered sale deed dated 22/08/1968.
After the death of Varadaraju there was a partition among the
1st defendant and two sons of late Varadaraju evidenced by
palupatti dated 08/03/1979 and under the said partition
schedule property has been allotted to the 1 st defendant
thereby he became the owner of the schedule property. But in
the year 1971 the Government of Karnataka through BDA by
its final notification dated 28/10/1971 purported to acquire
the schedule property and subsequently passed a resolution
dated 26/12/1979 and purported to handed over possession
of the said property to the Bengaluru City Corporation for
further development, accordingly the City Corporation issued
a letter dated 20/12/1983 asking the 1 st defendant to pay
betterment charges and property tax and then issued katha in
favour of 1st defendant along with municipal property No.14.
Further it is averred that on 18/05/2007 the BDA has
forcibly and illegally took possession of the property by
demolishing the construction standing there on which was
published in Deccan Herald dated 19/05/2007. This being
the fact the 1st defendant tried to sell the property to the
prospective purchasers at Rs.300 square feet though BDA has
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already issued final notification for acquisition of land,
therefore 1st defendant had lost all hopes of selling the
property and he was not in a position to assert his rights and
to put forward his rights against BDA to protect the property,
at that time the 2nd plaintiff who is none other than brother-
in-law of 1st defendant come forward to help the 1 st defendant
in finding a purchaser and after discussion they reduced the
same in to writing dated 28/06/2007, but due to forcible
action of BDA no one ventured to take risk and purchase the
property.
Again the 1st defendant consistently requested the 2 nd
plaintiff to purchase the property from the 1 st defendant
though 1st defendant had no right to sell or enter in to
agreement in view of the acquisition of the property by the
BDA. Thereafter 2nd plaintiff made arrangements at his cost to
file W.P. No.18676/2007 in the name of 1 st defendant by
challenging the acquisition proceedings and it came to be
allowed on 24/03/2008. Further the BDA filed Writ Appeal
No.1070/2008 against the 1st defendant challenging the
orders passed in W.P. wherein also the 1 st defendant
forwarded the notice to the 2 nd plaintiff to defend him in writ
appeal, but after hearing, writ appeal filed by the BDA came to
be dismissed.
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Further it is averred that without entering into
agreement to sell, the 1st defendant requested the 2nd plaintiff
to pay a sum of Rs.50 lakhs towards advance amount as
defendants were in dire need of funds, considering the
relationship and request, a sum of Rs.50 lakhs was paid by
the 2nd plaintiff to the 2nd defendant Pradeep Raju
S/o K. Gopal Raju under two cheques drawn on Bank of India
and cheques were encashed, but the 1st defendant and his son
further requested for payment of Rs. 2 crores as further
advance sale consideration, so though there was no
agreement in writing but on the trust the 2nd plaintiff paid a
sum of Rs. 2 crores to the 1 st defendant by RTGS transfer
dated 14/11/2008 even before execution of agreement of sale
dated 16/11/2009.
Further it is averred that the BDA has again challenged
the orders passed in writ appeal before the Hon'ble Apex
Court by filing SLP wherein also the 2 nd plaintiff has borne all
the expenditure and on 17/07/2009 the said SLP came to be
dismissed as such 1st defendant continues to be the owner of
the schedule property subject to rights of the plaintiffs and
thereafter the 2nd plaintiff has constructed the compound wall
covering the schedule property along with his property and
since then 2nd plaintiff is in physical possession of the
schedule property. Further though the agreement to sell was
a total sale consideration of Rs.7,84,00,000/-, but due to
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inadvertence in the preparation of the document a sum of
Rs.50 lakhs paid to Sri. Pradeep Raju, thereafter the 1 st
defendant received the payment of Rs.1 crore through a
cheque on 04/12/2009 and Rs.2 crores through bank pay
order on 08/12/2010 towards further part payment. So in all
plaintiffs have paid Rs.5,50,00,000/- to the defendants
towards part payment of sale consideration and balance
consideration payable is Rs.2,34,00,000/- only.
Further it is averred that under the agreement of sale
dated 16/11/2009 there is provision for nominating the
purchaser/by the plaintiff or for assigning the rights of the
plaintiffs to others. The plaintiffs wanted to develop the
property including suit schedule property with the help of
M/s PIUS JHERUM Properties and Developers Pvt. Ltd.,
entered in to MOU dated 11/12/2010 and plaintiffs offered to
pay balance consideration to the 1 st defendant, but he started
raising untenable objections and refused to receive pay order
for Rs. 2 crores and thereby tried to avoid obligations.
Thereafter the 1st defendant sent a letter dated 05/01/2011 to
the 2nd plaintiff informing that he has unilaterally cancelled
the agreement dated 16/11/2009 and when the 2 nd plaintiff
questioned the same he assured that 1 st defendant is
interested to sell the property and requested to proceed
further with the sale transaction after getting clarification on
capital gain tax.
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O.S. No.7947/2012
Further they fixed the date for registration of the sale
deed to be completed on 03/05/2011, accordingly 2 nd plaintiff
got prepared the same through his advocate and sent it to the
1st defendant for approval, but again he refused stating that
he has cancelled the agreement dated 16/11/2009 though the
same could not have been cancelled unilaterally by the 1 st
defendant and there is no valid ground for the same. This
being the fact the plaintiffs have already paid a substantial
sum of Rs.5,50,00,000/- to the defendants out of total sale
consideration of Rs.7,84,00,000/- agreed to be paid to the 1 st
defendant which is more than 70% of the agreed amount, but
the 1st defendant enjoying the said substantial sum of money
and refused to execute the sale deed by receiving the balance
amount inspite of demands made by the plaintiffs and
postponing the same.
Further it is specifically averred that plaintiffs have been
always ready and willing to perform their part of obligation
under agreement dated 16/11/2009 including payment of
balance sale consideration and to get the sale deed registered
in their favour by incurring necessary expenditure, but the 1 st
defendant failed to perform his part of obligation as per the
terms of the agreement. This being the fact the 1 st defendant
filed O.S. No.1383/2012 before this court against the present
plaintiff and others seeking declaration that he has cancelled
the agreement dated 16/11/2009 seeking direction to execute
23
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O.S. No.7947/2012
the Deed of Cancellation and to redeliver the original title
deeds pertains to the schedule property. The plaintiffs got
issued legal notice dated 17/11/2011 calling upon the 1 st
defendant to execute sale deed by receiving the balance sale
consideration of Rs.2,34 crores, but he sent a reply taking
same stand as he has already cancelled the agreement and
thereby committed breach of agreement though it is valid and
enforceable in law, as such 1 st defendant is legally bound to
complete the sale transaction. Cause of action arose to file the
suit on 16/11/2009 when the agreement to sell was entered
and thereafter when legal notice was issued, reply notice was
given by the 1st defendant and on the date of breach of terms
of agreement. On these grounds prayed for decreeing the
suit.
6. The 1st plaintiff in main suit being the 1 st defendant
in connected suit has filed written statement contending that,
averments made in para 1 to 3 of the plaint do not call for any
response, but averments made in para 4 to 6 of the plaint are
specifically denied, except that a meeting was held on
28/06/2007 and sale of the property in question was
discussed and there was no discussion about the agreement.
Further contend that averments made in para 7 of the plaint
are not related to the alleged transaction of agreement to sell
dated 16/11/2009. Though the plaintiffs are aware of the
payment of Rs.50 lakhs referred in para 7 of the plaint
24
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O.S. No.7947/2012
regarding payment to the 2nd defendant by RTGS has been
repaid on 31/01/2012, but they have deliberately suppressed
the facts to mislead, as such they are not entitled for the
discretionary relief of specific performance. Further the
defendants deny the averments made in para 7 of the plaint
pertains to alleged payments, as the cheques at Sl.No.2 to 6
came to be dishonored for want of sufficient funds,
accordingly 1st defendant has cancelled agreement to sell
dated 16/11/2009 by issuing a letter dated 05/01/2011
invoking Clause 8 of the agreement. The plaintiffs have
received the said letter but have not replied on the other hand
they have suppressed the said facts, therefore plaintiffs are
only entitled to refund of money paid after deducting 25% of
the consideration amount subject to the condition that title
deed in original has to be returned to the 1 st defendant.
The averments made in para 8 and 9 of the plaint are
not wholly true and denied by the defendants as the averments
in para 9 of the plaint are contrary to Clause 2(g) of the agreement
to sell dated 16/11/2009. Further the agreement to sell is a
registered document as such plaintiffs are dishonest in claiming
contrary to a registered document to which the 1 st plaintiff is a
party. The averments made in para 10 of the plaint due to
inadvertence the payment of Rs.50 lakhs has not been incorporated
in the agreement to sell is denied as false, as the same is not at
all connected with the agreement in question and already paid
by the 2nd defendant.
25
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O.S. No.7947/2012
Further contend that averments made in para 11 of the
plaint are denied as plaintiffs have not made payments as per
the terms stated in para 1 on page 9 of the agreement to sell
as cheques referred at item No.2 to 6 are bounced with
endorsement of the bank that there is no sufficient balance in
the account of the drawer, therefore 1st defendant was
competent to cancel the agreement as per Clause 8 which the
1st defendant has done by issuing letter dated 05/01/2011,
but plaintiffs have deliberately suppressed the fact of
dishonour of the cheques nor replied to the said letter and
filed the suit with false and misleading averments. Further
the defendants deny the fact that plaintiffs have paid Rs.5.5
Crores out of total sale consideration of Rs.7,84,00,000/-.
Further in the letter dated 05/01/2011 1st defendant has
clearly stated regarding default committed by the plaintiffs
and they have neither replied nor made reference in the letter
of 2nd plaintiff dated 09/11/2011 as well as legal notice dated
17/11/2011, as such plaintiffs have admitted their default
and they never ready and willing to perform their part of
obligations under the agreement to sell dated 16/11/2009 or
plaintiffs had capacity.
The averments made in para 15 of the plaint are denied,
as the 1st defendant had sent reply dated 28/11/2011 to the
legal notice by reiterating his stand in the letter dated
05/01/2011 regarding cancellation of agreement to sell, as
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O.S. No.7947/2012
such it is denied that the said agreement to sell dated
16/11/2009 is subsisting and enforceable as alleged by the
plaintiffs, therefore defendants are not liable to execute any
sale deed.
Further contend that, 2nd plaintiff is a deceitful person,
though he promised in a letter dated 14/11/2008 that
transaction would be completed within 9 months, but he
failed to do so and also suppressed the same in the plaint.
On the other hand he has deceptively taken original title deed
from 1st defendant on 07/11/2009 and gave acknowledgment
dated 09/11/2009 stating that it was required for producing
it before the legal advisor and return, but the said fact also
been suppressed in the plaint. Further the defendants
specifically contend that plaintiffs have not adhered to the
terms of payment as per the agreement to sell, as after the
cheques at Sl.No.2 to 6 bounced, a pay order for Rs. 2 crores
purchased by a third party and it was refused by the 1 st
defendant, but again the 2nd plaintiff credited the said amount
in the account of 1st defendant which came to know after he
issuing termination letter dated 05/01/2011 and again called
upon him to take back the amount by way of letter dated
21/01/2011, which has been suppressed by the plaintiffs.
Further the plaintiffs have also caused public notice
dated 29/11/2011 which has been refuted by the 1 st
defendant in his letter dated 03/12/2011. In another letter
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O.S. No.7947/2012
dated 26/12/2011 1st defendant called upon the 2nd plaintiff
to execute a deed of cancellation of agreement to sell and get
it registered in view of default committed by the plaintiffs, but
the plaintiffs have suppressed the said fact and also never
been ready and willing to perform their part of obligation, but
filed the suit by suppressing the several material facts. On
these grounds prayed for dismissal of the suit with cost.
7. On the basis of the above pleadings, my learned
predecessor in office has framed the following issues in both
the suits:-
Issues in O.S. No.1383/2012
1) Whether the plaintiff to prove that he has
rightfully cancelled the registered agreement to
sell dated 16/11/2009 in respect of the suit
schedule property as pleaded in plaint?
2) Whether the plaintiff is entitled for all reliefs
claimed in the suit?
3) What decree or order?
Issues in O.S. No.7947/2012
1) Whether the plaintiffs to prove, prior to
entering into sale agreement dated
16/11/2009, the 2nd plaintiff paid
nd
Rs.50,00,000/- to the 2 defendant by way of
cheque the same was encashed by the 1 st
defendant through the 2nd defendant the said
amount paid only to sale transaction
agreement dated 16/11/2009?
28
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O.S. No.7947/2012
2) Whether the plaintiffs to prove that they are
always ready and willing to perform their part
of contract?
3) Whether the 1st defendant to prove, the
plaintiffs deceptively credited an amount of
Rs.2,00,00,000/- into the account of 1st
defendant as contended in written statement?
4) Whether plaintiffs are entitled for reliefs
claimed in the suit?
5) What decree or order?
8. In order to prove their case, the plaintiff in main
suit O.S. No.1383/2012 examined himself as P.W. 1 and got
marked the documents at Ex.P.1 to 48. Further he has also
examined his son/the defendant No.2 in O.S. No.7947/2012
as P.W. 2. On the other hand, the plaintiff No.2 being the
managing partner of plaintiff M/s Synergy Holdings
Partnership firm in connected suit O.S. No.7947/2012 and
also arrayed as defendant No.2 in main suit examined
himself as DW-1 and got marked documents at Ex.D.1 to
D.26.
9. Heard and perused the written arguments along
with the material on record. The learned counsel for plaintiff in O.S.
No.1383/2012 and defendants in O.S. No.7947/2012 has relied on the
decisions reported in 1. (2013) 15 SCC 27 (I.S. Sikander (Dead by Lrs case),
2. (1993) 1 SCC 519 (Chand Rani (Dead) by L.Rs case), 3. (1996) 4 SCC 423
(P.R. DEB and associates case), 4. (2009) 17 SCC 27 (Azhar Sultana case),
5. (2011) 1 SCC 429(J.P. Builders and another case), 6. (2012) 2 SCC 300
(J. Samuel and others case), 7. (2015) 8 SCC 695 (Padmakumari and others
case), 8. (2015) 5 SCC 355 (Pemmada Prabhakar and others case), 9.
(1998) 5 SCC 381(Ganesh Shet case), 10. (1996) 5 SCC 589 (Lourdu Mari
David and others case) and 11. (2001) 6 SCC 600 (A.C. Arulappan case).
29
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O.S. No.7947/2012
Similarly the learned counsel for defendants in O.S. No.1383/2012
and plaintiffs in O.S. No.7947/2012 has also relied on the decisions
reported in AIR 1996 SC 2510 (Sukhbir Singh case), AIR 2012 SC 2035
(Narinderjith Singh Case), 2014 AIR SCW 5795 (K. Prakash case) and AIR
2017 SC 1236 (Mrs. A. Kanthamani case).
10. My findings on the issues in O.S.
No.1383/2012 are as under:-
Issue No.1: In the affirmative
Issue No.2: Partly in the affirmative.
My findings on the issues in O.S. No.7947/2012 are
as under:-
Issue No.1: In the negative
Issue No.2: In the negative.
Issue No.3: In the negative
Issue No.4: Partly in the affirmative
Issue No.3&5 As per final
in both the suits :- order for the following:-
:R E A S O N S:
11. Issue No.1 in O.S.No.1383/2012 and Issue No.1
to 3 in O.S. No.7947/2012 :- I take these issues altogether
for my discussion as they are inter related to each other and
for the sake of convenience.
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O.S. No.7947/2012
12. It is worth to note that the plaintiff in O.S.
No.1383/2012 has filed the suit against the defendants for
the following reliefs:-
i. Declaring that the plaintiff has rightfully
cancelled the registered agreement to sell dated
16/11/2009 in respect of the suit schedule
property.
ii. Direct the defendants to execute and
register the Deed of Cancellation of the
agreement to sell dated 16/11/2009 in respect of
the suit schedule property.
iii. If the defendants fails to execute the
Deed of Cancellation of the registered agreement
to sell dated 16/11/2009, this Hon'ble Court
may be pleased to get the same executed and
registered through its process.
iv. Direct the defendants to deliver the
original title deed/sale deed dated 22/08/1968,
registered as document No. 3684 of 1968-69 in
Book I, Volume 117 at pages 142-144
on25/09/1998 in respect of the suit schedule
property to the plaintiff, in respect of the suit
schedule property bearing Sy.No. 5, measuring
88281 square feet situated in Agrahara
Dasarahalli, Yeshwanthapura now municipal
No.14, 5th Road, Agrahara Dasarahalli,
Bengaluru.
Similarly, the plaintiffs in O.S. No.7947/2012 have filed
the suit against the defendants for the following reliefs:-
a. ordering and directing the 1st
defendant to execute necessary sale
deed in favour of the plaintiff and to get
the same duly registered by receiving
the balance of sale consideration and to
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O.S. No.7947/2012
confirm the delivery of possession of the
schedule property in favour of the
plaintiff
b. In case the 1 st defendant fails
to execute the necessary sale deed and
to get it registered and to complete the
sale transaction as above, then to get
the sale transaction complete through
this Hon'ble Court through duly
authorized officer of this Hon'ble Court.
c. alternatively, if for any reason,
this Hon'ble Court comes to the
conclusion that specific performance of
the agreement is not possible then to
order the defendants to refund the
entire amount received from the plaintiff
to the plaintiffs together with interest at
24% p.a. from the date of payment up to
the date of repayment.
d. direct the defendants to pay
the cost of the suit to the plaintiffs in
respect of the suit schedule property
bearing Sy.No. 5, measuring 88281
square feet situated in Agrahara
Dasarahalli, Yeshwanthapura now
municipal No.14, 5th Road, Agrahara
Dasarahalli, Bengaluru.
13. Records reveal that the defendants appeared in
both the suits and filed their respective written statements.
Further after framing issues, since subject matter as well as
parties to both the suits are one and the same, accordingly in
view of clubbing orders passed by this court the parties to
both the suits adduced common evidence so as to pass
common judgment as observed supra.
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14. In connection with O.S. No.1383/2012 the learned
counsel for plaintiff therein has filed detailed written
arguments by reiterating pleadings, oral and documentary
evidence on record and relying on decisions referred in para 9
supra prayed for decreeing the said suit by dismissing O.S.
No.7947/2012.
15. It has been held by the Hon'ble Apex Court in the
case of I.S. Sikandar dead by L.Rs that, Section 9, 16B and
34 of specific relief Act- Maintainability held that subsistence
of contract is essential precondition - plaintiff having failed
to perform his part of the agreement, already terminated
by defendant vendor then in absence of plaintiffs prayer
seeking declaratory relief that termination of agreement
was bad in law , hence suit for specific performance not
maintainable, in the said decision also observed that terms of
the agreement, conduct of parties and surrounding
circumstances should be examined by the court.
Further in the case of Chand Rani dead by L.Rs the
constitution bench of Hon'ble Apex Court observed that as a
general proposition of law that in case of immovable
property there is no presumption as to time being the
essence of contract and even if it is not of the essence of
the contract the court may infer that it is to be
performed in a reasonable time if the conditions are
evident.
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Further in the remaining decisions referred at Sl.No. 3
to 11 referred supra the Hon'ble Apex Court has observed that
according to Section 16(c) of the Specific Relief Act in a suit
for specific performance of contract in absence of specific
averment regarding always ready and willingness to
perform essential terms of contract the decree of specific
performance cannot be granted and also observed that,
discretionary power of the court to grant decree how should
be exercised under Section 20 of the Act.
16. Per contra, in connection with O.S. No.7947/2012
the learned counsel for plaintiffs therein has also filed detailed
written arguments/additional arguments by reproducing
pleadings, oral and documentary evidence on record and
relying on decisions referred in para 9 supra prayed for
decreeing the said suit by dismissing O.S. No.1383/2012.
17. It has been held in the case of Sukhbir Singh and
others that since the respondents attended the sub registrar
office to have the sale deed executed and waited for the
petitioners to attend the office of the sub registrar is a
positive fact to prove that they had necessary funds to
pass on consideration and had with them the needed money
for payment at the time of registration.
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Further in the case of Narinderjit Singh the Hon'ble
Apex Court observed that the respondent purchaser pleaded
that consideration offered was refused by the appellant
seller on the ground that agreement was fabricated, but
no evidence was adduced to substantiate its assertion , as
such in absence of appeal against finding of the trial court on
ready and willingness refused to interfere with stating that
escalation of price is not the ground to deny the specific
performance of agreement to sell.
In the case of K. Prakash Vs. B.R. Sampath Kumar also
the Hon'ble Apex Court observed that the power under
Section 20 of the Act to be exercise by the court is
discretionary and not arbitrary as such subsequent raise in
price would not be treated as hardship entailing refusal of
decree for specific performance.
Further in another decision AIR 2017 SC P 1236 in
case of A. Kanthamani referred supra by the counsel for
defendants the Hon'ble Apex Court has distinguished the
facts of the case in I.S. Sikandhar (dead by L.Rs.) (2013)
15 SCC 27 and held that Section 16 of the Act- mere fact that
plaintiff did not seek declaration that termination of
agreement is bad - cannot be a ground to dismiss the suit as
not maintainable.
35
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O.S. No.7947/2012
18. So in the light of the principles enunciated in the
decisions referred supra as well as facts and circumstances
of the case this court has to appreciate the oral and
documentary evidence on record and to see that, in whose
favour preponderance of probability lies.
19. In order to prove his case the plaintiff in O.S.
No.1383/2012 has filed an affidavit in lieu of oral evidence by
reiterating the entire averments of the plaint as stated in para
2 supra, examined himself as P.W. 1 and got marked the
documents at Ex.P.1 to P.48, as such I feel that again it is not
necessary to reproduce the same.
20. During the course of cross-examination by the
counsel for defendants it has been elicited that himself and
Varadaraju have jointly purchased the property bearing
Sy.No. 5, 6 and 8 on 22/08/1968 and in a partition Sy.No. 5
was allotted to him, but pleads ignorance about filing of writ
petition, writ appeal as well as SLP and their dismissal of the
said petitions. Further admits that there was a minutes of
meeting on 28/06/2007 between himself and Srinivasraju as
per Ex.D.1 and thereafter on 24/10/2008 himself and
Srinivasraju agreed to sell the schedule property for total
consideration of Rs.7,84,00,000/-. Further admits that Rs.2
Crores was deposited by Srinivasraju on 14/11/2008 and an
amount of Rs.1,00,00,000/- was paid through cheque on
04/12/2009 towards sale consideration and contents of
36
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O.S. No.7947/2012
Ex.P.4 are true and correct, but when a suggestion was put to
the witness that another amount of Rs.50 lakhs given to
Pradeep Raju relates to the present property transaction as
advance, he denied as false. Again when a question was put
to the witness that defendants are ready to pay balance sale
consideration now also and to purchase the property, the
witness answered as he is not ready to give the property to the
defendants. Further though P.W. 1 admits that he has
accepted pay order dated 08/12/2010 for an amount of Rs.2
crores but states that thereafter he rejected the same and out
of six cheques at Ex.P.6, 8, 10, 12 and 14 came to be
dishonored and also informed to Srinivasraju through
telephone.
21. In his further cross-examination again states that
he has refused the DD of Rs.2 crores given by PIUS Jhelum
Traders and Developers Pvt., Ltd., as he has no transaction
with third party who purchased the said D.D. Further states
that he has cancelled the agreement on 05/01/2011, but
denied the suggestion that he has intentionally cancelled the
agreement for sale at Ex.P.4 as the value of the property
increased so as to defeat the right of the defendants. Further
though the witness answered that at the time of agreement
there was an offer for Rs.1200 to 1400 per square feet from
the third party, but denied the suggestion that he was ready
to sell the property for lower rate of Rs.300/- square feet.
37
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O.S. No.7947/2012
Further denied the suggestion that time is not the essence of
contract as per the agreement.
22. Further when a specific question was put to the
witness that whether he has any problem or loss for
completion of the transaction, witness answered as the
payment was not made in time, he suffered loss and after
returning of original sale deed he is ready to refund the
amount of Rs.2 crores and denied the suggestion that
defendants have been ready and willing to perform their part
of contract even now as per the terms of Ex.P.4 and with
malafide intention only he is avoiding the same.
23. So also P.W. 2 who is none other than son of P.W. 1
who has been arrayed as defendant No.2 in connected suit
O.S. No.7947/2012 has also filed an affidavit in lieu of oral
evidence stating that the plaintiffs in O.S. No.7947/2012
have falsely contended regarding payment of Rs.50,00,000/-
as part of the sale consideration in pursuance of agreement to
sell dated 16/11/2009, but it was not the part of sale
consideration as such the same has already been paid back
to the defendant No.5 Unnathi Projects by way of RTGS on
31/01/2012 itself as per the entries in Ex.P.44 pass book, but
the said repayment has been deliberately not disclosed.
38
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O.S. No.7947/2012
24. In his cross-examination pleads ignorance about
details of Ex.P.4 agreement, sale consideration amount and
receipt of advance amount by his father but states that he is
aware of Ex.P.1 letter, wherein 2nd and 3rd condition are not
correct as to advance amount of Rs.2 Crores was not paid in
time and though admits about receipt of Rs.50,00,000/- and
litigations filed by the BDA ended in his favour, but denied the
suggestion that the said amount was paid on account of suit
transaction and in collusion with his father they have
transferred the same to Srinivasraju's account, again says
that it relates to repayment of loan amount
25. On the other hand the defendant No.2 in O.S.
No.1383/2012 being the Manging partner of 1st and 5th
defendant firm also filed an affidavit in lieu of oral evidence by
reproducing the entire contentions taken their written
statement filed in the main suit as well as averments made in
the plaint in connected O.S. No.7947/2012, examined himself
as D.W. 1 and got marked the documents at Ex.D.1 to D.26,
as such I feel that again it is not necessary to reproduce the
same.
26. During the course of cross-examination of D.W. 1 it
has been elicited that he is the managing director of Synergy
Holdings Partnership Firm and Ex.P.4 agreement was being
drafted by an advocate Mr. Aravind as minutes of meeting
begun in the year 2007. Further states that before the
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O.S. No.7947/2012
custody of Sri. Kusuma Muniraju the sale deed was in his
custody i.e. in the year 2008-09 and he has taken the same
from Gopalraju and gave an acknowledgment as per Ex.P.2
and P.3 dated 07/11/2009. Further admits that one of the
property involved under Ex.D.13 MOU the schedule 'B" is the
property of the plaintiff and he has not requested Mr. Kusuma
Muniraju to return the sale deed.
27. Further D.W. 1 has specifically admitted the fact
that six cheques referred in Ex.P.4 are the post dated
cheques, he has signed those cheques in the capacity of
Managing Partner of 1st defendant and one cheque came to be
honored, rest of the cheques were to be honored after taking
concurrence of them, but denied the suggestion that he has
given false statement that cheques should be presented with
their concurrence, again admits that there is no stipulation in
the agreement for presenting the cheques with concurrence
and Gopalraju presented the cheques within the validity
period.
28. Further D.W. 1 has specifically admitted the fact
that, the cheques at Ex.P.6, 8,10, 12 and 14 were returned
for want of sufficient funds, but he has not informed about
issuance and return of cheques to the PIUS Jhelum Traders
company, plaintiff has sent as letter dated 05/01/2011 as per
Ex.P.17 canceling the agreement at Ex.P.4 and another letter
dated 21/01/2011 as per Ex.P.19, but though he informed
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O.S. No.7947/2012
his counsel regarding letter of cancellation, he is aware of
contents of Ex.P.23 reply, has not replied in writing to Ex.P.17
and 21 as he approached the plaintiff personally. Further
admits that he has no document to show that there is a
contract between the plaintiff and PIUS Jhelum Traders and
Developers Pvt. Ltd., Further when a suggestion was put to
the witness that the payment of Rs.25,00,000/- each paid to
Pradeep Raju as well as payment of Rs.2 crores are not the
part of the suit transaction, he denied as false.
29. Further admits that after issuance of public notice
under Ex.P.24 and 25 in Kannada and English News papers
he has sent a letter as per Ex.P.26 with a request to refund a
sum of Rs.2 crores and the registered agreement of sale came
to be reversed or cancelled only by another registered
agreement, but denied the suggestion that along with Ex.P.31
letter a draft of cancellation of agreement was being sent by
the plaintiff calling upon him to the office of sub-registrar to
execute cancellation of agreement for sale on 05/01/2012.
30. Again D.W. 1 on page No.13 of his cross-
examination specifically admits that Pradeep.G. Raju has
repaid amount of Rs.50 lakhs and he has received the same
as entered in Ex.P.44 passbook stating the said repayment
was made as it was not reflected in suit transaction, but
denied the suggestion that Ex.D.18 was created after filing of
the suit by putting a back date. Further admits that he has
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O.S. No.7947/2012
not made any efforts to get back the original sale deed of the
year 1968 but denied the suggestion that Synergy Holdings
has neither sufficient funds in the account to encash those
cheques which came to be bounced nor has financial capacity
to purchase the property of Gopalraju. Further denied the
suggestion that he took back the pay order of Rs. 2 crores
from Gopalraju and then deposited in his account without
permission and intimation. Again admits that he has not
made any attempt to re validate the cheques issued to Mr.
Gopalraju when they were bounced and thereafter only
suggestions made by referring contents of affidavit filed in lieu
of oral evidence para wise and denied by the witness.
31. It is pertinent to note here that on careful scrutiny
of the oral and documentary evidence along with oral and
written submissions filed by the learned counsel for the
parties we can find that so far as in respect of ownership of
the plaintiff by name K. Gopalraju in O.S. No.1383/2012 over
the schedule property bearing Sy.No. 5, measuring 8202
square meters situated in Agrahara Dasarahalli,
Yeshwanthapura now municipal No.14, 5th Road, Agrahara
Dasarahalli, Bengaluru is concern there is no dispute. It is
also not in dispute that said K. Gopalraju has jointly
purchased the schedule property and other properties along
with V. Varadaraju under a registered sale deed dated
22/08/1968 is concern there is no dispute. It is an admitted
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O.S. No.7947/2012
fact that the property bearing Sy.No. 5 to the extent 1 acre
38 guntas was being allotted in favour of the plaintiff K.
Gopalraju in a family partition dated 08/03/1979 took place
between the plaintiff and sons of V. Varadaraju.
32. Further it is also an undisputed fact that, the BDA
had acquired the property, aggrieved by the same the plaintiff
K. Gopalraju filed W.P. No.18676/2007 on 26/11/2007
challenging the notification and action of the BDA which was
allowed on 24/03/2008 in part with liberty to the BDA to
resort fresh acquisition proceedings. Further the writ appeal
No.1070/2008 filed by the BDA came to be dismissed and
thereafter BDA challenged the order dated 26/09/2008
dismissing the writ appeal before the Hon'ble Supreme Court
by filing Special Leave Petition (SLP) bearing CC
No.7417/2009 and the said SLP also came to be dismissed
on 17/09/2009. In such circumstances I find that there
was/is no impediment to proceed with both the suits on
merits and to pass common judgment.
33. It is to be noticed that execution of Ex.P.4
registered agreement to sell dated 16/11/2009 for a total sale
consideration of Rs.7,84,00,000/- in respect of the suit
schedule property between the plaintiff and defendants M/s
Synergy Holdings, is concern there is no dispute. Further as
per Clause 2 of Ex.P.1 letter and Clause 1 on page 9 of Ex.P.4
agreement to sell, out of the sale consideration amount
43
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O.S. No.7947/2012
referred supra, an amount of Rs. 2 Crores has already been
paid by the defendants as advance by way of RTGS dated
14/11/2008. It is also not in dispute that as per the
particulars of balance sale consideration amount shown in
Clause1(b) of Ex.P.4 agreement to sell, another amount of
Rs.1 crore has also been paid by the defendants by way of
cheque bearing No.703101 dated 30/11/2009 drawn on UCO
bank, Mid Corporate Branch.
34. But, it is the specific case of the plaintiff that the
defendants have neither made further payment towards
balance sale consideration amount as per the terms of
agreement to sell dated 16/11/2009 even after dishonour of
remaining five cheques nor ever ready and willing to perform
their part of obligation within the stipulated time shown in
clause 7 and 9 of the agreement or come forward to execute
regular sale deed with balance amount, accordingly by
invoking clause 8 of the agreement to sell the plaintiff got
issued Ex.P.17 legal notice and thereby cancelled the
agreement to sell dated 16/11/2009 as such the same does
not exist and becomes unenforceable.
35. Per contra, it is the specific case of the defendants
that they have already paid a substantial sum of
Rs.5,50,00,000/- to the plaintiff out of total sale consideration
amount which is more than 70% of the agreed amount but
plaintiff is enjoying the said money and refused to execute the
44
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O.S. No.7947/2012
sale deed by receiving balance amount, though they are
always been ready to perform their part of obligation as such
the plaintiff cannot unilaterally cancel the agreement on
flimsy grounds and also disputed the alleged memo with
compromise petition dated 14/12/2019 filed by the parties.
36. It is also well settled as held by the Hon'ble Apex
Court in the decision (2013)15 SCC 27 referred supra that to
maintain a suit for specific performance subsistence of
contract is a essential precondition, plaintiff having failed to
perform his part of agreement and already terminated by the
defendant vendor then in absence of plaintiff prayer seeking
declaratory relief that termination of agreement is bad in law,
then the said suit is not maintainable. But as already
referred supra again the Hon'ble Apex Court in the case of
Mrs. A. Kanthamani Vs. Mrs. Nasreen Ahamed distinguished
the said fact and held that the plea of maintainability of the
suit must have been raised in the written statement otherwise
the mere fact that plaintiff did not seek the relief of
declaration that termination of agreement is bad, cannot be a
ground to dismiss the suit.
37. It is relevant to point out that, in a case for specific
performance of contract, the person claiming the benefit of
part performance must always be shown to be ready and
willing to perform his part of contract from the date of
agreement till execution of regular sale deed, if failed to prove
45
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O.S. No.7947/2012
the same, then he will not qualify for the protection of the
doctrine of part performance as per the principles enunciated
in the previous decisions as referred in para 9 supra by the
counsel for plaintiff at Sl.No.2 to 8. Further in view of latest
amendment and decision of the Hon'ble Apex Court reported
in AIR 2021 SC 5581 (Sughar Singh case) now the specific
performance is no longer a discretionary relief under Section
20 of the Act. However, in the said decision further observed
that Section 10(a) though may not be applicable
retrospectively but can be guide on discretionary relief, that
too subject to establishment of ready and willingness to
perform his part of the contract.
38. In this connection if we go through the prayer
column of the plaint in O.S. No.7947/2012 for the relief of
specific performance we do not find the specific prayer about
the relief of declaration on termination of agreement as bad in
law. Further on perusal of contents of written statement filed
by the 1st defendant Gopalraju though we can find that there
is a plea to the effect that he has cancelled the agreement to
sell dated 16/11/2009 by issuing Ex.P.17 letter dated
05/01/2011 as per Clause 8 of the agreement as such there
is no subsisting enforceable agreement, but there is no
specific plea regarding maintainability of the suit on the said
aspect. For these reasons it can be said that, on that ground
alone suit of the plaintiffs in O.S. No.7947/2012 for the relief
46
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O.S. No.7947/2012
of specific performance cannot be dismissed, it depends upon
proof of ready and willingness on the part of the plaintiffs.
39. It is worth to note that, as observed by the
Hon'ble Apex Court in (2013)15 SCC 27 if time was essence
of agreement, then conduct of the parties and surrounding
circumstances should be examined by the Court. So having
regard to the facts and circumstances of the case before
considering the plea of plaintiff/owner of the schedule
property regarding cancellation of agreement to sell dated
16/11/2009, this court has to see that whether the
agreement holder/plaintiffs in O.S. No.7947/2012 are able to
establish the fact that they always ready and willing to
perform their part of obligations or not? Section 16(c) of the
Specific Relief Act, 1963 requires that the party seeking the
relief of specific performance is not only to plead, but is also
required to prove that, he is always ready and willing to
perform the essential terms of the contract till execution of
sale deed. It is also equally settled that the conduct of the
defendant cannot be ignored by weighing the question of
exercise of discretion as a guide as held by the Hon'ble Apex
Court in the case of Sughar Sing referred supra for decreeing
or denying a decree for specific performance.
40. In this regard it is averred in para 12 and 13 of
the plaint in O.S. No.7947/2012 that, plaintiffs have already paid
a substantial sum of Rs.5,50,00,000/- which is more than 70%
47
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of the agreed amount of Rs.7,84,00,000/- and also they have
been always ready and willing to perform their part of obligations
under the agreement dated 16/11/2009 including to pay the
balance sale consideration, but the 1 st defendant himself failed
and evaded to perform their part of contract to complete the sale
transaction. In para 15 again it is averred that when the 1 st
defendant filed O.S. No.1383/2012 seeking declaration that 1 st
defendant has cancelled the agreement to sell, plaintiffs got
issued legal notice dated 17/11/2011 calling upon the 1 st
defendant to execute the sale deed in favour of plaintiffs by
receiving balance sale consideration of Rs.2,34,00,000/-, but the
defendants sent a reply stating that the agreement has already
been cancelled on 05/11/2011, therefore plaintiffs have filed the
present suit.
41. But, in this connection if we go through the cross-
examination of D.W. 1/Managing Director of the said partnership
firm we can find that he has categorically admitted the fact that
out of six post dated cheques referred in Ex.P.4 signed by him,
only one cheque came to be honored and deposed that rest of the
cheques were to be honored after taking concurrence, but again
admits that there is no such stipulation for presenting the
cheques with concurrence and the Gopalraju/owner of the
schedule property presented the cheques within the validity
period. So on perusal of Ex.P.5 to 14 depict that rest of the post
dated cheques presented by Gopal Raju for encashment came to
be dishonored for want of sufficient funds and as admitted by
48
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O.S. No.7947/2012
D.W. 1 he has not made any attempt to re validate the said
cheques, but denied the suggestion that because of his
continuous default the plaintiff is justified in canceling the
agreement for sale.
42. On page No.13 of his cross-examination D.W. 1 again
admits that plaintiff's son Pradeep Raju has repaid the amount of
Rs.50 lakh and he has received the same as per the entries
made in Ex.P.44 passbook. In his further cross-examination on
page No.19 admits that he has requested for refund of Rs.2
crores as per Ex.P.26 letter referred supra and after receipt of
Ex.P.17 letter dated 05/01/2011 pertains to cancellation of
Ex.P.4 agreement as well as another letter dated 21/01/2011 as
per Ex.P.19,he has neither replied nor sent rejoinder to Ex.P.23
or made efforts to get re validate the dishonored cheques/make
payment of balance sale consideration amount as per the terms
of Ex.P.4 agreement to sell in question. So, absolutely there is no
explanation on these aspects by the agreement holders to the
effect that why they kept mum from the date of dishonour of
remaining five cheques till receipt of Ex.P.17 and 21 notice
pertains to cancellation of agreement in question and why they
did not reply except notice under Ex.D.18 or come forward to
perform their part of obligations during the stipulated period as
stated in Clause 5 in Ex.P.1 and Clause 1(b) of Ex.P.4 agreement
to sell dated 16/11/2009, as such an adverse inference can
validly be drawn against them/Synergy Holdings.
49
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O.S. No.7947/2012
43. So, the aforesaid pleadings, material oral and
documentary evidence indicate that as per Ex.P.1 letter issued by
the Synergy Holdings pertains to proposed agreement to sell
dated 16/11/2009 time was the essence of contract as entire
transaction shall be completed and registration shall take place
within 9 months time. Further as per Clause 1(b) on page No.9 of
Ex.P.4 r/w Clause No.7 and 9 also time was essence of contract.
In the case on hand admittedly there is no understanding
between the parties in execution of regular sale deed by
extending time to perform their part of contract as contended by
the defendants, on the other hand clause 7 of the agreement
reflects that both the parties agreed as to under no
circumstances or for any reasons, there shall be extension of
time for making the payment.
44. This being the fact, it is evident that, except
prepayment of Rs.2 crores by way of RTGS dated 14/11/2008
and post payment of Rs.1 crore by way of cheque No.713101
dated 30/11/2009 towards advance sale consideration the
agreement holders/defendants M/s Synergy Holdings have
neither able to show their financial capacity during the said
period except producing Ex.D.24 to 25/ cheque and statement
of account which were being marked subject to objections nor
made payment of balance sale consideration amount as
required under cheques shown at Sl.No.2 to 6 in Clause 1(b) of
Ex.P.4 agreement within the stipulated time mentioned therein or
shown their interest to believe that they are always ready and
50
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willing to perform their part of obligations in terms of Ex.P.4
agreement to sell dated 16/11/2009.
45. On the other hand the plaintiff Mr. Gopalraju being
the owner of the property in question has not only able to
establish by making his version reasonably probable by adducing
oral and documentary evidence to believe that though he has
been ready and willing to perform his part of contract as per the
terms of Ex.P.4 agreement to sell (without possession) within the
stipulated period but the defendants themselves did not turn up
in payment of balance sale consideration amount and evaded for
want of sufficient funds in their account as per the bankers
memo at Ex.P.5,7, 9,11 and Ex.P.13 endorsement pertains to
return of outdated cheque. In the case of Sughar Singh referred
supra in view of recent amendment to the Act the Hon'ble
Supreme Court observed that though the amendment may not be
applicable retrospectively and it can be guide on discretionary
relief. In the said case the vendee has specifically stated in his
deposition that he was ready and willing to perform his part of
obligation and there was no findings that he was not having any
means to generate consideration amount, accordingly held that
he is entitled to the relief of specific performance.
46. It is settled as held by Constitution Bench of the
Hon'ble Supreme Court in the case of Chand Rani that, as a
general proposition of law, in the case of sale of immovable
property there is no presumption as to time being the essence of
51
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O.S. No.7947/2012
the contract. Even if it is not of the essence of the contract, but
the court may infer that it is to be performed in a reasonable
time if the conditions are evident from the express terms of the
contract, from the nature of the property and from the
surrounding circumstances. In the case on hand it is evident that
defendant No.1 firm has never made further efforts to perform its
part of contract till date.
47. In this regard, in the case on hand P.W. 1 the owner of
the property in question states that though he presented the
cheque for encashment within the validity period but rest of 5
cheques came to be dishonored and defendants failed to make
balance payment for that reason he suffered loss and thereby got
cancelled the agreement to sell dated 16/11/2009 by issuing
Ex.P.17 notice dated 05/01/2011 for cancellation of agreement
to sell by registered post by invoking Clause 8 of the agreement,
which remained un replied and un rebutted. Thereafter when
P.W. 1 came to know about deposit of Rs.2 crores towards part
payment balance consideration, he has given reply under Ex.P.19
stating that the purchaser of the DD is no way connected either
personally or with business dealings, but the defendants
purchased it by altogether a third party without his consent that
too after agreement is lapsed long back and service of notice
withdrawing terms of the sale agreement. Further when the
defendants issued another legal notice under Ex.P.21 on
19/11/2011 again the plaintiff has suitably replied by referring
Ex.P.17 cancellation of agreement as per Clause 8 and lastly
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plaintiff K. Gopalraju got issued Ex.P.31 notice calling upon the
defendants to appear before the Sub-registrar, Rajajinagar for the
purpose of executing cancellation of agreement and to receive the
cheques mentioned therein through his son Sandeep Raju as per
power of attorney/Ex.P.48, failing which the said cheques will be
forwarded to the Prime Ministers Relief Fund, but it shows that
defendants did not turn up, accordingly the proposed vendor has
already produced list dated 13/08/2014 along with the said two
cheques towards refund of advance amount of Rs.3,04,00,000/-
and power of attorney as per Ex.P.46 to 48 before this court. For
these reasons evidence of D.W. 1 cannot be accepted as worthy of
credence.
48. It is to be noticed that, on careful evaluation of the
agreement to sell, legal cum reply notices as well as letter
correspondences at Ex.P.15 to 31 and cross-examination of
D.W.1, it is evident that, though the P.W. 1 expressed his ready
and willingness to perform his part of contract from the date of
agreement till the date of cancellation of agreement to sell under
Ex.P.17 letter, but the defendants themselves evaded and failed
to perform their part of contract and also acknowledged their
delay and latches in performing their part of contract as per
Ex.P.30 letter dated 14/12/2011 even after lapse of two years
from the date of execution of agreement to sell in question. It is
settled that as per Section 54 of T.P. Act the contract for sale of
immovable property does not create any interest and it is not a
concluded contract, accordingly the plaintiff being the owner has
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issued Ex.P.17 letter dated 05/01/2011 by canceling the
agreement to sell in question by invoking Clause 8 of the
agreement. In such circumstances when the defendants did not
turn up for registration of cancellation of agreement to sell dated
16/11/2009 bilaterally then the plaintiff cannot get it registered
unilaterally and only option left with him to approach the court
to get the same declared as he has cancelled the registered
agreement to sell dated 16/11/2009 in respect of the schedule
property since the defendants failed to perform their part of
obligations as required under Section 27 and 31 of the Specific
Relief Act seeking direction to the defendants to execute the same
in accordance with law and also paid necessary court fee as
required under Section 24 of the CF&SV Act which has already
been confirmed by our Hon'ble High Court in W.P.
No.8310/2012 dated 25/04/2014.
49. It is also evident that plaintiff in O.S. No.1383/2012
has filed the suit within three years from the date of issuing
Ex.P.17 letter cum notice dated 05/01/2011 for cancellation of
agreement to sell in question when first become known to him
as required under Art.59 of Limitation Act, 1963. It is also
evident from the perusal of Ex.P.17 that the said notice got
issued by the plaintiff proposed vendor through registered post,
was duly served upon the defendant No.1 Synergy Holdings
Partnership firm as required under the Clause 8/terms of
agreement to sell in question which remained unrebutted. It is to
be noticed that, Ex.D.2 notice under Order 12 Rule 8 of Code of
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O.S. No.7947/2012
Civil Procedure was not issued at the earliest point of time.
Further, entries in Ex.D.25 and 26 statement of account neither
shows sufficient funds nor pertains to relevant dates mentioned
on Ex.P.6, 8, 10, 12, 14 and Ex.D.24 alleged post dated cheques
towards balance amount. For these reasons Ex.P.35 to 41 public
notice correspondences took place during pendency of the suit
and Ex.D.10 and 13 to 26 are not helpful to the case of the
defendants.
50. This being the fact the plaintiff proposed vendor has
got every right to get cancel the said agreement and to forfeit
25% of advance sale consideration amount of Rs.3 crores referred
supra and to refund balance of 75% within 45 days from the date
of issue of notice referred supra subject to compliance as stated
in 2nd part of the Clause 8 of the agreement. In the case on hand
it is an admitted fact that the plaintiff vendor though rightly got
cancelled Ex.P.4 agreement to sell dated 16/11/2009 by issuing
notice as per Ex.P.17, but has neither refunded 75% of the
advance sale consideration amount already received by the
defendant No.1 proposed purchaser nor deposited the same in
the court, on the other hand P.W. 1 has stated in his cross-
examination that he is ready to refund Rs.2 crores only after
returning of original sale deed, which cannot be done at this
stage for the reasons assigned below. Therefore plea of the
plaintiff proposed vendor pertains to forfeiture of 25% of advance
sale consideration amount cannot be accepted.
55
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51. It is worth to note that though the learned counsel for
plaintiff in O.S. No.1383/2012 also argued that the application
filed under Section 151 of CPC to assess the damages to be paid
by the defendant No.2 and 5 can be disposed off along with main
suit, but other side has filed objections to consider the same.
Further the defendants would also contend that now they are not
in possession of the original sale deed dated 22/08/1968. In
this regard if we go through the orders passed by the Hon'ble
High Court in W.P. No.62110/2016 dated 10/03/2021 we can
find that writ petition filed by the plaintiff K. Gopalraju came to
be allowed with a direction to the defendant No.2 and 5 to deposit
the original sale deed dated 22/08/1968 before this court within
four weeks subject to out come of the suits in question .
Accordingly, this court observed that it requires separate enquiry
and directed the office to register the said application as separate
misc. petition and put up for enquiry subject to compliance and
final result of the suits. This being the fact question of calling for
the original sale deed dated 22/08/1968 received by defendant
No.2 under Ex.P.2 and 3 and considering the application for
assessing damages at this stage does not arise.
52. As could be seen from the perusal of material on record that
on 16/11/2019 the counsel for both the parties also filed a
memo with compromise petition stating that there is chance of
settlement, accordingly case was referred to national Lok Adalath
held on 14/12/2019, but since the defendants did not turn up
and also disputed the said compromise, as such the same
56
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O.S. No.7947/2012
cannot be accepted and liable to be rejected. Therefore having
regard to the facts and circumstances of the case, oral as well as
written arguments filed by the learned counsel for the parties in
both the suits partly holds good. Hence, I answer Issue No.1 in
O.S.No.1383/2012 in the affirmative and Issue No.1 to 3 in
O.S. No.7947/2012 are in the negative.
53. ISSUE No.2 in O.S.No.1383/2012 and ISSUE No.4
in O.S. No.7947/2012:-
In view of my findings on Issue No.1 in O.S.No.1383/2012
and Issue No.1 to 3 in O.S. No.7947/2012 the plaintiff proposed
vendor is entitle for the relief of declaration as he has rightly got
cancelled the registered agreement to sell dated 16/11/2009 in
respect of the schedule property and consequently defendants to
execute registered Deed of Cancellation of agreement to sell dated
16/11/2009 as sought for and to return original sale deed dated
22/08/1968 subject to refund of earnest money by the P.W. 1
and completion of enquiry in Misc.Petition No.99/2022 on the
file of this court for assessing damages only after payment of
necessary court fee thereon. In the result the defendant No.1
proposed purchaser is not entitled for the relief of specific
performance of contract.
54. It is pertinent to note here that, in the case on hand
admittedly there is no dispute about execution of Ex.P.4
registered agreement to sell dated 16/11/2009 for a total sale
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O.S. No.7947/2012
consideration amount of Rs.7,84,00,000/-. Further it is evident
that though the defendants paid an amount of Rs.3,00,00,000/-
as advance sale consideration amount but failed to prove their
financial capacity for payment of balance amount of sale
consideration within the stipulated period as per Clause 1(b) of
the agreement and also failed to establish that they are always
ready and willing to perform their part of obligation, accordingly
this court declined to grant the relief of specific performance but
entitle to refund of advance sale consideration amount with
interest for the reasons referred below.
55. In this regard our Hon'ble High court has held in the
case of Khamarunnisa //Vs// Mudalappa reported in ILR 2003
KAR 4535 at point (c) that Section 21 of Specific Relief Act
stipulates how court should exercise its power to award
compensation / damages for any breach of contract - On facts
held - Relief of return of earnest money in a suit for specific
performance - even if the suit is dismissed, in exercise of the
discretionary power without there being a specific pleading to
that effect can also be granted. Admittedly the plaintiffs in O.S.
No.7947/2012 have also prayed alternatively to order for refund
of advance amount with interest as required under Section 22 of
the Specific Relief Act. So out of total sale consideration
amount of Rs.7.84 crores receipt of Rs.2 crores prior to Ex.P.4
agreement and Rs.1 crore after agreement as shown in Ex.P.4(1)
(b) P.W. 1 has received Rs.3 crores only as advance sale
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O.S. No.7947/2012
consideration amount. So as against Ex.P.16/Ex.D.14 notice
with copy of pay order of Rs.2 crores dated 01/12/2010 issued
by the third party M/s PIUS Jhelum Traders and Development
Pvt. Ltd., is concern, in para 30 of the evidence of P.W. 1 states
that defendant No.2 has taken back the said pay order. Further
evidence of P.W. 2 and Ex.P.44 pass book entry supported for
return of Rs.50 lakhs relied by the defendants. Therefore,
having regard to the facts and circumstances of the case I have
to hold that though the plaintiffs in O.S. No.7947/2012 are not
entitle for the relief of specific performance, but as required
under Section 21 r/w 22 of the Act are certainly entitle to get
back the earnest money of Rs3,00,00,000/- paid by them with
interest at the rate of 18% p.a. as per the payments made pre
and post agreement to sell dated 16/11/2009. Consequently,
the suit of the plaintiff in O.S. No.1383/2012 deserves to be
partly decreed without cost and O.S. No.7947/2012 deserves to
be partly decreed without cost. Hence, I answer Issue No.2 in
O.S.No.1383/2012 and Issue No.4 in O.S. No.7947/2012 are
partly in the affirmative.
56. ISSUE No.3&5 :- For the forgoing reasons, I proceed
to pass the following:
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O.S. No.7947/2012
O R DE R
The suit of the plaintiff in
O.S. No.1383/2012 is partly decreed.
It is ordered and declared that
the plaintiff has got cancelled the
registered agreement to sell dated
16/11/2009 in respect of the suit
schedule property.
Consequently the defendants are
directed to execute registered Deed of
Cancellation of agreement to sell dated
16/11/2009 in respect of the suit
schedule property within 90 days from
the date of decree, failing which the
plaintiff is entitled to get execute the
same in accordance with law.
The relief in respect of seeking
direction to deliver original sale deed
dated 22/08/1968 requires separate
enquiry along with application/Misc.
Petition No.99/2022.
Similarly the suit of the plaintiffs
in O.S. No.7947/2012 is partly
decreed.
In the result, the defendant in
O.S. No.7947/2012 is hereby directed
to refund entire advance sale
consideration amount of
Rs.3,00,00,000/- received from the
plaintiffs along with interest at the rate
of 18% p.a., i.e. from the date of Ex.P.1
on Rs.2,00,00,000/- and from the
date of Ex.P.4 agreement to sell on
Rs.1,00,00,000/- till its realization
within three months.
Consequently, the relief of
specific performance of contract
stands dismissed.
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There shall be no order as to
costs.
Draw decree accordingly.
Office to send a copy of decree to
the Sub-registrar concerned as
required under Section 31(2) of Specific
Relief Act 1963, for information.
Office to keep the original
judgment in the main suit and copy
thereof in the connected suit.
(Typed to my dictation by the Stenographer directly on computer, corrected, signed by me and then pronounced
in the open Court this the 1st day of February, 2022.)
( C.D.KAROSHI )
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
******
:COMMON ANNEXURE (Clubbed Evidence):
WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW.1 : Gopala Raju
PW.2 : Pradeep.G. Raju
WITNESSES EXAMINED FOR THE DEFENDANTS:
DW.1 : V. Srinivasaraju
DOCUMENTS EXHIBITED FOR THE PLAINTIFFS:
Ex.P.1 Letter of the 1st defendant dated 14/11/2008
addressed to plaintiff
Ex.P.2 Acknowledgment issued by the 2nd defendant
having received the original sale deed dated
22/08/1968 on 07/11/2009
Ex.P.3 Acknowledgment dated 09/11/2009
Ex.P.4 Registered sale agreement dated 16/11/2009
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O.S. No.7947/2012
Ex.P.5 Endorsement issued by the UCO Bank dated
13/07/2011
Ex.P.6 Cheque dated 30/12/2009 issued in favour of the
plaintiff
Ex.P.7 Endorsement issued by the UCO bank dated
30/06/2010 for dishonor of cheque
Ex.P.8 Cheque dated 30/01/2020 in favour of the plaintiff
Ex.P.9 Bank endorsement dated 11/11/2010 for dishonor
of cheque
Ex.P.10 Cheque dated 27/09/2010 issued in favour of the
plaintiff
Ex.P.11 Bank endorsement dated 08/10/2010
Ex.P.12 Cheque dated 09/04/2010 in favour of plaintiff
Ex.P.13 Bank endorsement dated 09/11/2010
Ex.P.14 Cheque dated 09/05/2010 in favour of plaintiff
Ex.P.15 Public notice published in Times of India dated
27/10/2010
Ex.P.16 Letter addressed by 2nd defendant in favour of the
plaintiff dated 11/12/2010
Ex.P.17 Notice dated 05/01/2011
Ex.P.18 Postal acknowledgement
Ex.P.19 Letter addressed b the plaintiff to the 2 nd defendant
dated 21/01/2011
Ex.P.20 Postal acknowledgement
Ex.P.21 Legal notice dated 19/11/2011 issued by 2 nd
defendant in favour of the plaintiff
Ex.P.22 Postal receipt
Ex.P.23 Reply notice dated 28/11/2011
Ex.P.24 Paper publication in Prajavani dated 23/11/2011
Ex.P.25 Paper citation in Times of India dated 23/11/2011
Ex.P.26 Letter addressed by the 2nd defendant in favour of
the plaintiff dated 29/11/2011
Ex.P.27 Paper publication in Times of India dated
30/11/2011
Ex.P.28 Reply to the public notice dated 03/12/2011
Ex.P.29 Postal receipt
Ex.P.30 Letter addressed by the 2nd defendant in favour of
the plaintiff dated 14/12/2011
Ex.P.31 Letter written by the plaintiff to the 2nd defendant
dated 26/12/2011
Ex.P.32 Postal receipts
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Ex.P.33 Copy of the challen issued by the Corporation
Bank dated 19/01/2011
Ex.P.34 Paper publication in Times of India dated
23/02/2013
Ex.P.35 Copy of legal notice dated 25/02/2013
Ex.P.36 Postal acknowledgment
Ex.P.37 Paper publication in Times of India dated
07/04/2012
Ex.P.38 Office copy of the notice addressed to Kusuma.R.
Muniraju dated 11/04/2012
Ex.P.39 Postal acknowledgement
Ex.P.40 Paper publication in Times of India dated
22/07/2013
Ex.P.41 Office copy of the notice dated 26/07/2013
addressed to R. Sunitha
Ex.P.42 Letter dated 07/07/2006 written by K. Gopal Raju
to B.Srinivas Raju
Ex.P.43 Endorsement issued by BBMP dated 22/06/2006
Ex.P.44 Pass book of Corporation Bank
Ex.P.45 Certified copy of the sale deed dated 06/08/2013
Ex.P.46&47 Two cheques
Ex.P.48 Registered power of attorney
DOCUMENTS EXHIBITED FOR THE DEFENDANTS:-
Ex.D.1 Copy of minutes of the Meeting held
on 28/06/2007
Ex.D.2 Office copy of notice dated 02/11/2015
Ex.D.3&4 Acknowledgments
Ex.D.5 Certified copy of the sale deed dated 22/08/1968
Ex.D.6 Certified copy of the agreement to sell dated
16/11/2009
Ex.D.7&8 Copy of Deccan Herald News Paper dated 19/05/2007
The copy of this news item is certified by the publisher
(Printers Mysore Pvt. Ltd.,) and Gate Pass (General)
Ex.D.9 Receipt issued by the plaintiff
Ex.D.10 Minutes of meeting
Ex.D.11 Certified copy of judgment in W.A.1070/2008
Ex.D.12 Certified copy of the order in W.P. No.18676/2007
Ex.D.13 Memorandum of understanding dated 11/12/2010
&13(a) with sketch
Ex.D.14 Copy of letter dated 11/12/2010
Ex.D.15 Letter dated 20/04/2011
Ex.D.16 Letter dated 01/06/2011
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Ex.D.17 Letter dated 29/10/2011
Ex.D.18 Letter dated 09/11/2011
Ex.D.19 Provisional receipt of Times of India Group
Ex.D.20 Certified copy of the sale deed dated 20/01/2011
Ex.D.21 Certified copy of the sale deed dated 19/08/2011
Ex.D.22 Certified copy of the sale deed dated 12/09/2011
Ex.D.23 Certified copy of the sale deed dated 28/05/2012
Ex.D.24 Cheque bearing No.142003 dated 05/01/2012 drawn
on Bank of India
Ex.D.25 UCO Bank statement of the witness
Ex.D.26 Bank of India Statement
( C.D.KAROSHI )
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
64
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O.S. No.7947/2012
Operative portion of the judgment
pronounced in open court vide
separate judgment:-
ORDER
The suit of the plaintiff in O.S. No.1383/2012 is partly decreed.
It is ordered and declared that the plaintiff has got cancelled the registered agreement to sell dated 16/11/2009 in respect of the suit schedule property.
Consequently the defendants are directed to execute registered Deed of Cancellation of agreement to sell dated 16/11/2009 in respect of the suit schedule property within 90 days from the date of decree, failing which the plaintiff is entitled to get execute the same in accordance with law.
The relief in respect of seeking direction to deliver original sale deed dated 22/08/1968 requires separate enquiry along with application/Misc. Petition No.99/2022.
Similarly the suit of the plaintiffs in O.S. No.7947/2012 is partly decreed.
In the result, the defendant in O.S. No.7947/2012 is hereby directed to refund entire advance sale consideration amount of 65 O.S.No.1383/2012 C/w O.S. No.7947/2012 Rs.3,00,00,000/- received from the plaintiffs along with interest at the rate of 18% p.a., i.e. from the date of Ex.P.1 on Rs.2,00,00,000/- and from the date of Ex.P.4 agreement to sell on Rs.1,00,00,000/- till its realization within three months.
Consequently, the relief of specific performance of contract stands dismissed.
There shall be no order as to costs.
Draw decree accordingly. Office to send a copy of decree to the Sub-registrar concerned as required under Section 31(2) of Specific Relief Act 1963, for information.
Office to keep the original judgment in the main suit and copy thereof in the connected suit.
[ C.D. KAROSHI ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU 66 O.S.No.1383/2012 C/w O.S. No.7947/2012