Bangalore District Court
Sri.B.M.Chandraiah vs S.Manjunath on 5 March, 2020
1
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH NO.23.
DATED THIS THE 5 th DAY OF MARCH, 2020.
PRESIDING OFFICER
PRESENT : Sri.Sadananda M.Doddamani,
B.A., L.LB.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
O.S.No.4376/2002
PLAINTIFF/S: 1. Sri.B.M.Chandraiah,
Aged about 65 years,
S/o Late Patel Mudduveerappa,
# 110/D, III Cross,
V Main, Raghavendra colony,
Bengaluru - 560 018.
(By Sri.CSP, Advocate)
Vs.
DEFENDANT/S: 1. S.Manjunath,
Aged about 36 years,
S/o Late Sathyanarayana,
Vijaya Engineering Services,
# 117-117, Bikasipura village
(layout)
Subramanyapura post,
Bengaluru - 560 061.
2
2. K.D.Kerur,
Aged about 45 years,
S/o Late Dheerendra Acharya,
# 1/1 (Upstairs), IX 'A' main,
Hanumanthanagar,
Bengaluru - 560 019.
3. K.N.Subramanya,
Aged about 44 years,
S/o Late K.Nagesh Rao,
Hangal post, Molakalmuru taluk,
Chitradurga district.
4. Vijaya Engineering Services,
A registered partnership firm,
Represented by its Managing
Partners,
# 112-117, Bikasipura village
(layout)
Subramanyapura post,
Bengaluru - 560 061.
5. B.G.Ramakrishna,
Aged about 42 years,
S/o K.R.Ganesh Murthy,
# 142, Ramanjaneya Layout,
Chikkakallasandra,
Bengaluru - 560 061.
6. Guru Raghavendra Sahakara
Bank Niyamitha,
# 9, Subbaram Chetty road,
Netkalappa circle,
3
Basavanagudi,
Bengaluru - 560 004.
(By Sri.BNA, GHM, MP, MGS,
Advocates)
* * * * *
Date of institution of suit : 08.07.2002
Nature of suit : Specific
performance
Date of commencement
of recording of evidence : 10.02.2005
Date on which the judgment
was pronounced : 05.03.2020
Duration of the suit :Year/s Month/s Day/s
17 07 26
JUDGMENT
1. This is a suit filed by the plaintiff seeking the relief of specific performance of the sale agreement dated 1.2.2001, for possession and declare the sale deed dated 18.4.2002 executed by defendant No. 3 in favour of defendant No.2 is void and not binding on 4 him, for permanent injunction and for damages. So also he sought for alternative relief to refund the advance amount of Rs.4,00,000/- with 2% interest per annum from the date of the agreement of sale till the date of realization.
2. In brief the case of the plaintiff is as under:
That the plaintiff No.1 is the absolute owner in possession of the property bearing No. 112 as detailed in the plaint schedule. It is further contended that the defendant has agreed to sell the suit schedule property for total sale consideration amount of Rs.4,15,000/- (Rupees Four Lakhs Fifteen Thousand only) and received an advance amount of Rs.4,00,000/- (Rupees Four Lakhs only) by way of an account payee cheque bearing No. 334774 dated 10.02.2001. It was agreed that the defendant has to 5 receive the balance sale consideration amount of Rs.15,000/- at any time within two years from the date of sale agreement. It is further contended that in token of security and proof the defendant handed over the original documents of title pertaining to the suit schedule property to the plaintiff. It is further contended that "time is the essence of contract" and the plaintiff was always ready and willing to perform his part of contract, i.e., to pay the balance of the sale consideration amount of Rs.15,000/- and bear equally all expenses in connection with the registration of deed of sale in favour of the plaintiff or his nominee or nominees. It is further contended that the 1 st defendant was never ready and willing to perform his part of sale agreement and always postponing to do so on some pretext or other inspite of request, demand and registered notice dated 6
3.4.2002 issued by the plaintiff to the 1 st defendant. It is further contended that the above referred notice was duly served upon the defendant on 8.4.2002 and so far remained not replied.
3. It is further contended that the plaintiff suspect the conduct of the defendant No. 1 and he himself applied and obtained encumbrance certificate dated 28.5.2002 in respect of the schedule property and was astonished to find that the 3 rd defendant as Power of Attorney of 1 st defendant has sold and conveyed the suit schedule property to the 2 nd defendant for a nominal sum of Rs.90,000/- or no consideration with malafide intention and ulterior motive to defraud the plaintiff and enrich themselves in the bargain. It is further contended that inspite of the 1 st defendant having received almost the entire sale consideration for the sale of the contract from 7 the plaintiff, having delivered the original documents of title in token of security and proof of the sale and having committed himself to the stringent condition as stipulated and agreed to under the annexed deed of sale agreement has connived and conspired with the defendant No. 2 and 3 and conveyed the suit schedule property through the 3 rd defendant as his alleged Power of Attorney in favour of the 2 nd defendant for a nominal or no consideration. So the above said sale deed is vitiated by fraud and not binding on the plaintiff. The said transfer is made with malafide intention and ulterior motive to cheat the plaintiff and make unlawful loss to the plaintiff. It is further contended that the defendant himself specifically agreed with the plaintiff that in the event of any willful default on his part in the compltion of the sale the plaintiff shall be entitled for the specific 8 performance of sale agreement, damages and such other reliefs as may be available to the plaintiff as against him has intentionally executed the sale deed dated 18.4.2002 through the 3 rd defendant in favour of the 2 nd defendant with the oblique motive if possible to delay and drag on delivery of physical possession of the suit schedule property to the plaintiff. It is further contended that the plaintiff has already paid almost entire sale consideration in the purchase of the suit schedule property and ready and willing to perform his part of the sale agreement at any time. He is entitled to the physical possession and enjoyment of the suit schedule property forthwith. The contention of the defendant No. 1 is only to delay and drag on the execution of the sale deed as long as possible and make illegal gain for himself and the plaintiff is entitled to 9 damages or compensation, for wrongful use and enjoyment of the suit schedule property by the defendants from the date of suit until the date of delivery thereof and estimate the damages and compensation at the lowest at Rs.10,000/- per month.
4. It is further contended that the defendant himself agreed in the event of willful default in the completion of the sale transaction the plaintiff shall be entitled to for specific performance of agreement of sale, damages and other reliefs as may be available to him that in the event that such relief could not be granted to him the plaintiff is entitled for the refund of repayment of advance amount of Rs4,00,000/- with interest at the rate of 2% per annum by way of damages for wrongful use and benefit of the said amount by the defendants from the date of deed of sale agreement upto the date of 10 realization. It is further contended that the intention of the defendants is crystal clear to defraud the plaintiff in the sale price of the schedule property already received as advance or to delay and drag on the completion of sale of schedule property as long as possible with intent to cause unlawful loss and injury to him. It is further contended that the defendants with malafide intention further alienate and encumber the suit schedule property and part with possession thereof to any third parties until and unless they are restrained from doing so by issue of permanent injunction restraining them from doing so pending disposal of the suit, etc. In view of his above contentions and other contentions taken in the plaint he prays for to decree the suit.
5. The suit summons sent by this court was duly served upon the defendants and they have appeared 11 before the court through their counsel and filed their detailed written statement by denying all the plaint averments. The defendant No. 4 not filed his written statement. The records would show that during the pendency of the present suit the defendant No. 5 and 6 have been added as parties to the present proceedings and the defendant No. 5 filed his detailed written statement by denying all the plaint averments. The defendant No. 6 not filed his written statement.
6. The defendant No. 1 in his written statement by denying all the plaint averments contended that the suit filed by the plaintiff is not maintainable either in law or on facts and the same is liable to be dismissed. It is further contended that the property bearing No. 112 of Bikasipura belong to the 1 st defendant and property No. 113 belong to the 12 brother of defendant No. 1 by name S.Ranganatha in property No. 112 wherein the fabrication work was done in the name and style of M/s.Vijaya Engineering Services and establishment was registered before the Registrar of Firms. It is further contended that the father of the 1 st defendant by name P.Sathya Narayana and other three sons were partners and the same continued to run in the said name till the death of Sathya Narayana who died on 4.11.2000. After his death the brother of the defendant No. 1 by name Ranganatha started acting detrimental to the interest of others and likely he took advantage of the knowledge of the 1 st defendant and got signature on various blank papers and letter heads of the establishment. It is further contended that during such time he got signature on certain stamp papers of defendant No. 1 and acting hand in glove with the 13 plaintiff with an intention to cheat and also deprive the legal rights over the family property handed over the documents to the plaintiff, so as to enable him to take action against the 1 st defendant. It is further contended that during March 2001 the defendant No. 1 having come to know all the affairs of the plaintiff and his brother Ranganatha, he got issued a letter of resignation dated 28.1.2001 and sought for settlement of accounts. It is further contended that the cheque which was said to have been issued by the plaintiff to the extent of Rs.4,00,000/- was got encashed by Ranganatha and ultimate intention of the same could be learnt only after the plaintiff and his brother Ranganatha's meeting often at the house and also at factory premises. It is further contended that the legal notice as claimed by the plaintiff was never received by the 1 st defendant and it was the hand 14 work of Ranganatha who managed to sign on the postal acknowledgment and see that it is served on the 1 st defendant. In the said context also it was the plaintiff and the said Ranganatha together managed the affairs.
7. It is further contended that the defendant No. 1 has not been benefitted by the transaction at any point of time, muchless the agreement in question. Further it is the plaintiff and Ranganatha who jointly played fraud on defendant No. 1 and tried to take benefit out of the situation. It is further contended that because of the problem posed by the plaintiff and also his brother Ranganatha the defendant No. 1 was forced to enter into transaction with the person Subramanya and borrowed money from him. The said document came to be executed and there was loan outstanding with the said Subramanya and 15 defendant No. 1 was indebted to him. It is further contended that the other cases are pending before the court for which initiative action by the 1 st defendant against Ranganatha who was the root cause for these litigations. It is further contended that the defendant No. 1 was in no way responsible for the alleged transaction and he is not the beneficiary under the agreement. It is of that Ranganatha is the root cause for the litigation and is solely responsible for the action. The defendant No. 1 is not liable to pay any damages, muchless is liable to get the transaction completed as the agreement in question is begotten and used against the 1 st defendant.
8. It is further contended that the plaintiff in collusion with Ranganatha who is the younger brother of the 1 st defendant brought into the 16 existence several documents with a view to make unjust gain for themselves. The plaintiff and Ranganath in collusion brought into existence lease agreement dated 10.5.2001 purported to have been entered into between S.G.Bharathi who is the wife of plaintiff herein with one person R.Ashwath Narayana and Ranganatha. On the basis of the said lease agreement the said S.G.Bharathi who is the wife of plaintiff filed O.S.No.4757/2002 on the file of the City Civil Court, Bengaluru seeking ejectment against Ashwath Narayana and Ranganatha. In the said suit the said Ranganatha consented for decree passed against him. However the suit was contested by R.Ashwath Narayana and the said suit was dismissed by the City Civil Court observing that S.G.Bharathi which was represented by her Power of Attorney holder and husband B.M.Chandraiah and Ranganatha 17 have foisted false case against R.Ashwath Narayana. The proceedings in O.S.No.4751/2002 was unsuccessfully challenged by S.G.Bharathi in RFA No. 874/2007. The said appeal was also dismissed confirming the judgment and decree passed by the trial court in O.S.No.4751/2002. The said document is another instance where the plaintiff and S.Ranganath in collusion have brought into existence purporting to be the deed of sale agreement. The defendant No. 1 denies that he has entered into sale agreement with the plaintiff on 1.2.2001. It is further contended that S.Ranganath who is the younger brother of defendant No. 1 is shown as consenting witness to the concocted and created document. The plaintiff is a money lender engaged in business of money lending along with his wife with variety of money transactions. The suit filed by 18 the plaintiff is not maintainable and the plaintiff is not entitled to the reliefs claimed in the plaint. The plaintiff and S.Ranganath are in the habit of concocted and creating records. S.Ranganatha is the brother of the 1 st defendant is helping the plaintiff in all such matters, etc. In view of his above contentions and other contentions taken in his written statement he prays for to dismiss the suit.
9. The defendant No. 2 by denying all the plaint averments contended that he has purchased the property bearing 117/112-117 new No. 112 muchless the suit schedule property from General Power of Attorney holder of defendant No. 1 by name K.V.Subramani under registered sale deed dated 18.4.2002. It is further contended that the 2 nd defendant has made thorough enquiries with regard to the legality to the title of the suit schedule 19 property and after careful scrutiny of the title deeds of the suit schedule property he has negotiated the terms of the sale and purchased the suit schedule property for valuable consideration. So it is contended that the defendant No. 2 being the bonafide purchaser has acquired the title to the suit schedule property under the sale deed as referred above. It is further contended that after having acquired the suit schedule property the defendant No. 2 got transferred Khatha in respect of the suit schedule property in the records of the City Municipal Counsel and he himself paying the taxes to the concerned authorities. Thus acquiring title to the property defendant No. 2 is in peaceful possession and enjoyment of the same without anybodies let or hindrance. It is further contended that the defendant No. 2 having taken the said premises has let out the 20 same to one Kamalamma who is basically a handicapped person. The said Kamalamma is in occupation and enjoyment of the property as tenant of defendant No. 2. The said tenant Kamalamma expressed before defendant No. 2 her anguish that she will be dispossessed by any point of time by the adamant and rude attitude of the plaintiff, as such she requested him to provide for protection from illegal attack of the plaintiff.
10. It is further contended that when things stood like so all of a sudden the plaintiff without any manner of right, title or interest in respect of the suit schedule property and without issuing any legal notice marked upon to file the present suit for decree of specific performance against defendant No. 1 only at the instance and instigation of Ranganath who is the younger brother of defendant No. 1. It is further 21 contended that the 1 st defendant and Ranganath being the brothers used to carry the business in the name and style of "Vijaya Engineering Services" at the suit schedule premises, i.e., 4 th defendant concern. It is further contended that Ranganath took the signature from the 1 st defendant on various papers said that they are required for the purpose of income tax assessment and joining hands with the plaintiff, the plaintiff has concocted the documents styled as agreement of sale and is attacking the 2 nd defendant who is a bonafide purchaser. The action of the plaintiff is tainted with an ulterior motive just to harass the 1 st defendant, 2 nd and 3 rd defendants who are innocent and bonafide persons. It is further contended that the defendant No. 2 being a bonafide purchaser was not aware of these developments within the family of 1 st defendant. The plaintiff with 22 ulterior motive and only with eye of vengence against the 1 st defendant with hostile attitude is acting detrimental to the interest of the 1 st defendant as well as 2 nd defendant. The 1 st defendant has convinced the 2 nd defendant with regard to the fact that the transaction in question are bonafide and he had no legal impediment for selling the suit schedule property in favour of defendant No. 2, as such by receiving sale consideration to the property the 1 st defendant has executed the sale deed through his Power of Attorney holder, i.e., defendant No. 3 in favour of defendant No. 2 and so also the defendant No. 1 has signed the sale deed as a consenting witness, etc. In view of his above contentions and other contentions taken in the written statement he prays for to dismiss the suit.
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11. The defendant No. 3 in his written statement by denying all the plaint averments contended that he was the Power of Attorney holder of 1 st defendant herein and as he was due to him a good lot of money having borrowed for his business now and then has consented to give the Power of Attorney with regard the property owned by him so as to enable the 3 rd defendant to have control over the property and also recover the money due to him and the circumstances made defendant No. 3 to have Power of Attorney and has in fact recovered the money due by the 1 st defendant by selling the property. Such being the case there is no cause of action against defendant No. 3 as alleged in the plaint. Further there was no impediment or restriction on defendant No. 3 to transact with the property. It is further contended that there is no 24 cause of action against defendant No. 3 and as such no relief can be permissible to be granted. In the circumstances the suit of the plaintiff is liable to be dismissed against defendant No. 3. No case is made out against defendant No. 3 with regard to seeking damages or compensation as alleged and on this account also the suit is liable to be dismissed with cost. It is further contended that the suit is not properly valued and the proper court fee is not paid as per law on the relief sought in the plaint, etc. In view of his above contentions and other contentions taken in his written statement he prays for to dismiss the suit.
12. The defendant No. 5 filed his detailed written statement by denying all the plaint averments, the defendant No. 5 contended that he is a bonafide purchaser of the suit schedule property for value. It 25 is further contended that before purchasing the suit schedule property he has made vigilent enquiries even from the bank and found that the title is proper and perfect, as such he has purchased property in question by paying valuable consideration to its vendor. It is further contended that the title of defendant No. 5 is not disturbed and he is in possession of the property from the date of purchase and it does not suffer from any latches. It is further contended that the defendant No. 5 has been unnecessarily arrayed as a party just in order to coerce him to concede the illegal demand of the plaintiff. In fact the 1 st defendant has no right to enter into any agreement as alleged and he has not entered into any such agreement with the plaintiff and the suit filed is only to harass the 5 th defendant who is a bonafide purchaser, as such the suit is 26 deserves to be dismissed. It is further contended that the plaintiff has no right to make this defendant No. 5 as a party to the present proceedings and if at all he has got any grievance against this defendant he has to file separate suit against him under different cause of action. There is no cause of action against defendant No. 5 and the cause of action which has been shown for the other defendants will not be cause of action for this defendant because as on that date the 5 th defendant had no right of any such nature with regard to the subject property. The defendant No. 5 is a bonafide purchaser for value and whatever the litigation is there in between the plaintiff and other defendants, this defendant No. 5 need not be unnecessarily harrased by impleading him as additional defendant. No allegation has been made against 5 th defendant 27 and his participation in the suit will cause him irreparable loss for no fault of him, etc. In view of his above contentions and other contentions taken in his written statement he prays for to dismiss the suit.
13. Heard the arguments of both sides. The learned counsel representing defendant No. 2 and 5 also filed his written arguments.
14. On the basis of the above rival pleadings of the parties my learned Predecessor-in-office has framed the following as many as 9 issues and 3 additional issues :
(1) Whether the plaintiff proves that the defendant No.1 was agreed to sell the suit schedule property for Rs.4,15,000/- and executed an agreement of sale dated 1.2.2001 28 by receiving an advance amount of Rs.4,00,000/-?
(2) Whether the plaintiff proves that he has been always ready and willing to perform his part of the contract ?
(3) Whether the defendant No.2 proves that he is a bonafide purchaser of the suit schedule property for valuable consideration without notice of the prior agreement ? (4) Whether the suit is properly valued and the court fee paid is just and proper ?
(5) Whether the plaintiff is entitled for the relief of specific performance of contract ?
(6) Whether the plaintiff is entitled for damages or compensation at 29 the rate of Rs.10,000/- for calendar month ?
(7) Whether the plaintiff is entitled for refund of the advance of Rs.4,00,000/- along with interest at the rate of 21% per annum ?
(8) Whether the plaintiff is entitled for permanent injunction ?
(9) To what order or decree ?
Additional Issues:
(1) Whether the defendant No. 5
proves that he is a bonafide
purchaser of the suit schedule
property for valuable consideration
without notice ?
(2) whether defendant No. 1 proves
that plaintiff and R.Ranganath have
in collusion brought into existence
the suit documents, purporting to be
30
the sale agreement, by concocting and creating it ?
(3) whether defendant No. 1 proves that plaintiff is a money lender and hence suit is not maintainable ?
15. The plaintiff in order to establish his case he himself got examined as PW1 and got marked 18 documents from Ex.P1 to Ex.P18 and in support of his case he also got examined one witness as PW2 and closed their side evidence. The defendant No. 1 in order to establish his case he himself got examined as DW1 and got marked 12 documents from Ex.D1 to Ex.D12. The defendant No. 2 in order to establish his case he himself got examined as DW2. The defendant No. 5 in order to establish his case he himself got examined as DW3 and no documents were marked on behalf of defendant No. 2 and 5.
31
16. My findings to the above issues are as under:
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In the Affirmative
Issue No.4 : In the Affirmative
Issue No.5 : In the Negative
Issue No.6 : In the Negative
Issue No.7 : In the Negative
Issue No.8 : In the Negative
Addl. Issue No.1 : In the Affirmative
Addl. Issue No.2 : In the Affirmative
Addl. Issue No.3 : Does not survive
for consideration
Issue No.9 : As per the final order
for the following:
REASONS
17. Issue No. 1 to 3, Additional Issue No. 1 framed on 5.2.2008, additional issue No. 2 framed on 14.6.2011 and additional issue No. 3 framed on 16.1.2013 : Since all these issues are inter-connected 32 with each other, as such they have been taken together for common consideration and discussion in order to avoid repetition of facts and also for the sake of convenience.
18. The plaintiff in order to establish his case, he himself got examined as PW1 and filed his affidavit evidence by way of examination-in-chief. The perusal of affidavit evidence of PW1 would show that it is nothing but replica of plaint averments, as such there is no need to repeat the same facts herein. PW1 in support of his case got marked 18 documents from Ex.P1 to Ex.P18. In view of his oral and documentary evidence he prays for to decree the suit.
19. The plaintiff in order to establish his case got examined one witness as PW2 who claims to be the 33 witness to Ex.P2, agreement of sale dated 1.2.2001 and Ex.P12 receipt. The perusal of the evidence of PW2 would show that he has supported the case of plaintiff, i.e., to say the agreement of sale entered in between plaintiff and defendant No. 1. The defendant No. 1 was agreed to sell the suit schedule property for Rs.4,15,000/-. He further spoken with regard to the factum of advance amount of Rs.4,00,000/- paid by the plaintiff to the defendant No. 1 under Ex.P2 agreement of sale dated 1.2.2001 and also passing of receipt by defendant No. 1 in favour of plaintiff as per Ex.P12 and he has put his signature to the above said two documents as a witness.
20. The defendant No. 1 in order to establish his case he himself got examined as DW1 and filed his affidavit evidence by way of examination-in-chief. 34 The perusal of the affidavit evidence of DW1 would show that it is nothing but repetition of his written statement averments, as such there is no need to repeat the same facts herein. DW1 in support of his case got marked 12 documents from Ex.D1 to Ex.D12. In view of his oral and documentary evidence he prays for to dismiss the suit.
21. The defendant No. 2 in order to establish his case he himself got examined as DW2 and filed his affidavit evidence by way of examination-in-chief, wherein he reiterated the same facts as stated in his written statement, as such there is no need to repeat the same facts herein. In view of his oral evidence he prays for to dismiss the suit.
22. The defendant No. 5 in order to establish his case he himself got examined as DW3 and filed his 35 affidavit evidence by way of examination-in-chief. The perusal of the affidavit evidence of DW3 would show that it is nothing but replica of his written statement averments, as such there is no need to repeat the same facts herein. In view of his oral evidence he prays for to dismiss the suit of the plaintiff.
23. The learned counsel for the plaintiff during the course of his arguments contended that the defendant No. 1 is the absolute owner of the suit schedule property and he has agreed to sell the suit schedule property for total sale consideration of Rs.4,15,000/- to the plaintiff. Accordingly agreement of sale was entered in between the defendant No. 1 and the plaintiff on 1.2.2001 and the defendant has received advance amount of Rs.4,00,000/- out of the total sale consideration of Rs.4,15,000/-. He further contended 36 that the said advance amount was paid by the plaintiff to defendant No. 1 under cheque bearing No.334774 dated 10.2.2001 drawn on Syndicate Bank, Chamarajpet. He further contended that it was agreed between the parties to pay the remaining balance sale consideration amount of Rs.15,000/- on the date of execution of registered sale deed. He further contended that it was agreed between the parties to execute the registered sale deed in respect of the suit schedule property within two years from the date of agreement of sale dated 1.2.2001. In order to substantiate his contention he placed his reliance upon Ex.P2. He further contended that prior to execution of Ex.P2 agreement of sale by defendant No. 1 in favour of plaintiff, the defendant No. 1 has written a letter to the plaintiff his intention to sell the suit schedule property on 15.1.2001. In order to 37 substantiate his contention he placed his reliance upon Ex.P1 letter written by defendant No.1 dated 15.1.2001. He further contended that the father of defendant No. 1 and his three brothers were doing business in the suit schedule property in the name and style of "Vijaya Engineering Services" and at the time of execution of Ex.P2 agreement of sale the suit schedule property was in occupation of the defendant No. 1 wherein they were running business and even they have also issued no objection letter for selling the suit schedule property in favour of the plaintiff. In order to substantiate his contention he placed his reliance upon Ex.P3 no objection letter.
24. He further contended that the plaintiff was / is ever ready and willing to perform his part of contract, i.e., to say he was ready to get execute the registered sale deed by paying remaining balance 38 consideration amount of Rs.15,000/- with expenses for the purpose of getting the sale deed executed. He further contended that inspite of calling on the defendant No. 1 many times he went on postponing the matter on one or the other pretext. He further contended that even after waiting for quite considerable time of one year, but defendant No. 1 did not come forward to execute the sale deed inspite of several visits and demands. So the plaintiff got issued legal notice calling upon defendant No. 1 to execute and register the sale deed. In order to substantiate his contention he placed his reliance upon Ex.P4 office copy of the legal notice. He further contended that the said notice was duly served upon defendant No. 1 and in order to substantiate his contention he placed his reliance upon Ex.P7 postal acknowledgment. He 39 further contended that after enquiry and obtaining encumbrance certificate the plaintiff came to know the sale deed dated 18.4.2002 was executed by the Power of Attorney holder, i.e., defendant No. 3 of defendant No. 1 in favour of defendant No.2. In order to substantiate his contention he placed his reliance upon Ex.P10 certified copy of the above referred sale deed in favour of defendant No. 2. He further contended that Ex.P10 sale deed would show that the suit schedule property was sold in favour of defendant No. 2 for a consideration of Rs.90,000/-. He further contended that the very encumbrance certificate produced by the plaintiff at Ex.P8 and Ex.P9 would show alienation of property by defendant No. 1 through his General Power of Attorney holder, i.e., defendant No. 3 in favour of defendant No. 2 under Ex.P10 sale deed. He further 40 contended that the defendant No. 1 has executed sale deed in favour of defendant No. 2 through his General Power of Attorney in order to overcome his liability to execute the registered sale deed in favour of plaintiff by virtue of Ex.P2 agreement of sale executed by him in his favour by receiving advance amount of Rs.4,00,000/-. So what he contended that the sale deed executed by defendant No. 1 in favour of defendant No. 2 through his General Power of Attorney holder defendant No. 3 is not proper and correct and the said sale deed did not bind the right of the plaintiff in respect of the suit schedule property and also defendant No. 2 do not get any right, title and interest in respect of the suit schedule property. He further contended that the plaintiff has paid major portion of the sale consideration amount, i.e., almost 95% of the sale 41 consideration amount he has paid to defendant No. 1 and he was to pay the remaining balance amount of Rs.15,000/- at the time of execution of the registered sale deed to the defendant No. 1. The plaintiff was always ready and willing to perform his part of contract by paying the balance sale consideration amount of Rs.15,000/-. He further contended that the defendant No. 2 inspite of having knowledge of the defendant No. 1 executed Ex.P2 agreement of sale in favour of the plaintiff has purchased the suit schedule property from him under Ex.P10 sale deed, as such he is not the bonafide purchaser of the suit schedule property and he would not get any right over the same. He further contended that during the pendency of the suit the plaintiff came to know that the defendant No. 2 alienated the suit schedule property in favour of defendant No. 5, i.e., to say he 42 sold the suit schedule property in favour of defendant No. 5, as such the defendant No. 5 has been made as a party to the proceedings. He further contended that the defendant No. 2 executed registered sale deed in favour of defendant No. 5 in respect of the suit schedule property in the year 2004, inspite of having knowledge that he is not having valid right and title in respect of the suit schedule property, as because he is having knowledge of Ex.P2 agreement of sale executed by defendant No. 1 in favour of plaintiff. He further contended that even the defendant No. 5 without making any enquiry with regard to the valid title in respect of the suit schedule property, he has purchased the same from defendant No. 2. As such the defendant No. 5 is also not a bonafide purchaser of the suit schedule property. So what he contended that when 43 there was already agreement of sale executed by defendant No. 1 in favour of plaintiff on 1.2.2001 as per Ex.P2 the subsequent sale deed executed by defendant No. 1 through his General Power of Attorney holder defendant No. 3 in favour of defendant No. 2 and in turn the sale deed executed by defendant No. 2 in favour of defendant No. 5 are not valid sale deeds in the eye of law and also the defendant No. 2 and 5 cannot be said that they are the bonafide purchasers of the suit schedule property. So he contended that in pursuance of defendant No. 1 executing Ex.P2 agreement of sale agreeing to sell the suit schedule property plaintiff is entitled for to get registered sale deed and also possession of the suit schedule property.
25. He further contended that the defendant No. 1 in his written statement has taken untenable 44 contention contending that he has not executed Ex.P2 agreement of sale. So also he contended that his father was running business along with his three sons in the suit schedule premises under the name and style of "Vijaya Engineering Services" and after the death of his father his brother Ranganath was taking care of the entire business. He further contended that the defendant No. 1 in his written statement contended that there was no good relationship with him and his brother Ranganatha and the brother of defendant No. 1 has taken several signatures of defendant No. 1 in blank letter heads, cheques and blank papers and he came to know the misuse of the same by his brother Ranganath, as such he tendered his resignation to the above referred business concern. He further contended that all the above contentions are taken by defendant No. 1 just to 45 overcome from his liability to execute registered sale deed by accepting the remaining balance consideration amount of Rs.15,000/- from the plaintiff. He further contended that the very documents produced by the plaintiff at Ex.P11 and Ex.P13 would goes to show that the advance amount of Rs.4,00,000/- was given to defendant No. 1 and for having received the said amount the defendant No. 1 has passed Ex.P12 receipt. He further contended that even the brother of defendant No. 1 by name Ranganatha is a witness to Ex.P2 agreement of sale. So what he contended that the above said aspect itself would clearly goes to show the defendant No. 1 has agreed to sell the suit schedule property for total sale consideration amount of Rs.4,15,000/- and on the date of execution of Ex.P2 he has received advance amount of Rs.4,00,000/- and 46 agreed to receive balance amount of Rs.15,000/- at the time of execution of the registered sale deed within two years. He further contended that the defendant No. 1 has taken untenable contention in the written statement. What he contended that the defendant No. 1 in his written statement contended that the plaintiff is a money lender and he used to lend money to so many persons by obtaining signed blank papers, signed cheques and some other documents. So far as the said contention of the defendant No. 1 is concerned what he contended that though the defendant No. 1 contended that the plaintiff is a money lender, but in order to prove the said aspect no acceptable evidence has been placed before the court. Per contra the documents produced by the plaintiff and the evidence given by DW1 in his cross-examination would show that he has agreed 47 to sell the suit schedule property for total sale consideration amount of Rs.4,15,000/- and accordingly executed Ex.P2 agreement of sale on 1.2.2001 and the very passbook produced by the plaintiff as referred above would show the amount of Rs.4,00,000/- was paid to the defendant No. 1. He further contended that since the defendant has denied his signature forthcoming in Ex.P2 agreement of sale and also it is the contention of the defendant No. 1 that he has not at all executed Ex.P2 agreement of sale. So the plaintiff filed an application to refer Ex.P2 documents to the Hand Writing Expert to ascertain whether the signature forthcoming in Ex.P2 is that of the defendant or not. He further contended that experts have submitted their report by saying that the admitted signature of defendant No. 1 and disputed signature of defendant No. 2 48 forthcoming in Ex.P2 are altogether different signatures. He further contended that though the Hand Writing Expert has given such a report he was not examined before the court to prove the report submitted by him by saying that the signature forthcoming in Ex.P2 is not of defendant No. 1. So he contended that the said report of the expert cannot be taken into consideration.
26. Per contra the evidence on record would clearly shows the factum of execution of Ex.P2 agreement of sale by defendant No. 1 agreeing to sell the suit schedule property for total sale consideration amount of Rs.4,15,000/-. He further contended that even the plaintiff to prove the execution of Ex.P2 agreement of sale and passing of receipt as per Ex.P12 has got examined one witness as PW2. The evidence given by the said PW2 would show that he has clearly 49 stated before the court with regard to the factum of execution of Ex.P2 agreement of sale by defendant No. 1 in favour of plaintiff and passing of Ex.P2 receipt and he put his signature to both the documents as witness. So he contended that the oral and documentary evidence on record would clearly shows that the plaintiff is entitled for the relief of specific performance of agreement dated 1.2.2001, for possession of the suit schedule property, to declare the sale deeds of defendant No. 2 and defendant No. 5 are not binding upon him, for permanent injunction and also for damages due to lapses on the part of the defendant No. 1 in not executing the registered sale deed within the stipulated time as shown in Ex.P2 agreement of sale. So in view of his above arguments he urged to answer issue No. 1, 2 in the Affirmative and issue No. 3 and additional 50 issue No. 1, 2 and additional issue No. 3 in the Negative.
27. The learned counsel for the defendant No. 1 during the course of his arguments contended that the plaintiff has filed the present suit seeking decree of specific performance of agreement of sale dated 1.2.2001, for possession, for damages and for such other reliefs. He further contended that at any point of time defendant No. 1 has agreed to sell the suit schedule property in favour of the plaintiff. What he contended that the defendant No. 1 has not at all agreed to sell the suit schedule property for total consideration of Rs.4,15,000/- and execute agreement of sale dated 1.2.2001 by receiving advance amount of Rs.4,00,000/- as claimed by the plaintiff. He further contended that it is the contention of the plaintiff that the defendant No. 1 was agreed to sell 51 the registered sale deed within two years by accepting the remaining balance sale consideration amount of Rs.15,000/-. So far as the said contention of the plaintiff what he contended that when the defendant No. 1 has not at all executed alleged Ex.P2 agreement of sale on 1.2.2001 the question of executing registered sale deed within two years by accepting remaining balance consideration amount of Rs.15,000/- does not arise at all. He further contended that the plaintiff falsely contending that on getting encumbrance certificate relating to the suit schedule property he came to know defendant No. 1 executed registered sale deed in favour of defendant No. 2 through his Power of Attorney holder defendant No. 3, as such the same is not binding upon him and filed the present suit in order to knock of the suit schedule property or to get money 52 from the defendant No.1. He further falsely claiming that because of the lapses on the part of defendant No. 1 in not executing registered sale deed within two years he is entitled for damages at the rate of Rs.10,000/-. When the defendant No. 1 has not executed Ex.P2 alleged agreement of sale the question of claiming damages by the plaintiff does not arise at all.
28. He further contended that the father of defendant No. 1 by name Sathyanarayana was running an industry partnership under the name and style of "M/s.Vijaya Engineering Services" in the suit property and his father was used to borrow money from the plaintiff for running industry and his brother Ranganath is working as assistant with the plaintiff. He further contended that the brother of the defendant No.1 by name Ranganath has been 53 associated with the plaintiff relating to money lending. He further contended that after the demise of the father of the defendant No. 1 the brother of defendant No. 1 Ranganath was looking after the entire business of M/s.Vijaya Engineering Services. He further contended that the defendant No. 1 had implicit faith and trust on his brother Ranganath and his brother Ranganath had taken his signature on blank letter head, blank cheques and on blank stamp papers stating that it was required for day to day running of business M/s.Vijaya Engineering Services and also for income tax purpose. He further contended that the brother of the defendant No. 1 Ranganatha who has been nursing grudge against defendant No. 1 has taken undue advantage of his innocence and has manipulated the document and signed blank letter heads of M/s.Vijaya Engineering 54 Services in collusion with the plaintiff. What he contended that the brother of defendant No. 1 Ranganatha with an intention to cheat him and to deprive the legal rights over the family property and also defendant No. 1 handed over the documents to the plaintiff which were given by defendant No. 1 to him so as to enable him to take action against the 1 st defendant. He further contended that soon after defendant No. 1 came to know the affairs of the plaintiff and his brother Ranganath he got issued letter of resignation on 28.1.2001 and sought for settlement of accounts in regard to the industry. He further contended that the cheque which was said to have been issued by the plaintiff to the extent of Rs.4,00,000/- was got encashed by the brother of defendant No. 1 by name Ranganatha and the malafide intention of the same could be learnt only 55 after the plaintiff and his brother Ranganatha was oftenly at the house of plaintiff and also at factory premises.
29. He further contended that the defendant No. 1 has not at all received Ex.P4 notice as claimed by the plaintiff and the signature forthcoming in Ex.P7 postal acknowledgment is not that of the defendant No. 1 and it is manipulated by the brother of defendant No. 1 by name Ranganatha. He further contended that the defendant No. 1 has not at all executed Ex.P2 agreement of sale and even the defendant throughout in his written statement and evidence denied his signature forthcoming in Ex.P2 alleged agreement of sale. He further contended that the plaintiff in proof of alleged Ex.P2 agreement of sale got examined one witness as PW2. So far as the said witness by name A.Gopal Krishna Raju is 56 concerned what he contended that the said witness and another person by name Sri Ranga are putting their signature as witness to the documents created and manipulated by the plaintiff along with the brother of defendant by name Ranganatha. He further contended that the very evidence given by PW2 in the cross-examination would show that though he stated that Rs.4,00,000/- was paid under Ex.P2 alleged agreement of sale but he admitted that he was not present at that time. He further contended that the evidence of PW1 would show that this PW2 A.Gopal Krishna Raju and another person by name Sri Ranga used to take money from the plaintiff for their business purpose and for their personal needs, as such invariably in all the transaction made by the plaintiff in collusion with the brother of defendant Ranganatha they used to put 57 signature to the concocted and created documents. He further contended that even PW1 in his evidence admitted with regard to the factum of receiving money from him by PW2 and another person by name Sri Ranga. He further contended that the brother of defendant No.1 Ranganatha by taking advantage of the signature of defendant No. 1 obtained on signed letter heads, signed blank cheques and signed stamp papers got manipulated Ex.P2 alleged agreement of sale as if the same is executed by defendant No. 1. He further contended that even the alleged advance amount of Rs.4,00,000/- was not at all received by the defendant No. 1 and it is the manipulation of the brother of defendant No. 1 Ranganatha as if the same was received by defendant No. 1 in pursuance of alleged Ex.P2 agreement of sale.
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30. He further contended that the plaintiff and the brother of defendant No. 1 Ranganatha in collusion brought into existence lease agreement dated 10.5.2001 purported to have been entered into between S.G.Bharathi who is the wife of plaintiff with one person by name Ashwath Narayana and Ranganatha who is the brother of 1 st defendant. On the basis of the said lease agreement S.G.Bharathi filed O.S.No.4750/2002 on the file of the City Civil Court, Bengaluru seeking ejectment against Ashwatha Narayana. He further contended that in the said suit Ranganath consented for decree passed against him over the said suit was contested by Ashwath Narayana and the suit came to be dismissed by City Court observed that S.G.Bharathi who was represented by Power of Attorney and Ranganath have posted false case against Ashwath Narayana. 59 He further contended that the judgment and decree passed in the said suit was challenged in RFA No.874/2007 and even the said appeal was came to be dismissed by confirming the judgment and decree passed in O.S.No.4751/2002. So what he contended that the above said aspect itself goes to show how the plaintiff and the brother of defendant No. 1 Ranganatha taking advantage of the signature of defendant No. 1 obtained in blank letter heads, blank cheques and blank stamp papers manipulated the documents. He further contended that in the present suit the same thing was done by the plaintiff and brother of defendant No. 1 as if Ex.P2 alleged agreement of sale was executed by defendant No. 1 in favour of the plaintiff agreeing to sell the suit schedule property. He further contended that the very certified copy of the plaint produced at Ex.D1 60 in O.S.No.2000/2003 would show that the son of plaintiff by name Girish Kumar has filed suit against one Jayachandra for recovery of money and the plaintiff herein was representing his son as Power of Attorney holder. What he contended that even the said suit was also filed against the said person by manipulating the documents by obtaining signature of the said person. He further contended that in the said suit PW2 herein has also given evidence as PW2. The said aspect itself would goes to show that in almost all the transactions made by the plaintiff along with Ranganath who is the brother of defendant No. 1 by got creating and manipulating the documents this PW2 and another person Ranganatha used to put the signature to the said manipulated documents as witnesses. He further contended that the very documents produced by 61 defendant No. 1 at Ex.D3, i.e., certified copy of the lease agreement entered between Bharathi and Ashwath Narayana and Ranganatha would show on the basis of the said manipulated document the above referred O.S.No.4751/2002 was filed. He further contended that being fed up with the attitude of his brother Ranganatha the 1 st defendant lodged complaint with the jurisdictional police as per Ex.D5 and also copy of the complaint to the Manager of Canara Bank wherein he is having his account and also letter addressed to the Registrar of Firms, Bengaluru Urban District for deletion of his name as partner of M/s.Vijaya Engineering Services in official records. He further contended that the very documents produced by defendant No. 1 at Ex.P4, i.e., letter of Ranganath to his brother defendant No. 1 would show that he has accepted resignation letter 62 of defendant No. 1 dated 28.3.2001. So what he contended that the above said aspect itself would clearly shows that the act of plaintiff in collusion with Ranganath who is the brother of defendant No. 1 got created and manipulated the documents on the basis of the signed blank papers, cheques and such other documents. He further contended that the very copy of the paper publication produced at Ex.D8 would show that the defendant No. 1 has tendered his resignation to their industry being fed up with the attitude of his brother. So what he contended that Ranganath who is the brother of defendant No. 1 by taking advantage of blank signature obtained by him of defendant No. 1 got manipulated alleged Ex.P2 agreement of sale. So he contended that the alleged Ex.P2 is not at all executed by defendant No. 1 and the signature forthcoming in the said 63 documents is not that of him. He further contended that even the plaintiff himself got referred the admitted signature of defendant No. 1 and disputed signature of him forthcoming in alleged Ex.P2 to the Hand Writing Expert. The said Hand Writing Expert submitted report saying that the signature forthcoming in Ex.P2 agreement of sale is not that of defendant. What he contended that the said report itself clearly speaks that Ex.P2 is a concocted and manipulated document and the same was got created by plaintiff in collusion with Ranganath who is the brother of defendant No. 1, in order to knock of the suit schedule property and to gain some money from him. He further contended that inspite of the Hand Writing Expert submitting report saying that the signature forthcoming in Ex.P2 alleged agreement of sale is not that of defendant No.1, the plaintiff did 64 not chosen to file any objection to the said report. So what he contended that it is a conclusive proof that Ex.P2 is a concocted and created document and defendant No. 1 has not at all executed the alleged Ex.P2 document.
31. He further contended that the contention of the plaintiff is that the alleged Ex.P2 was executed on 1.2.2001 by receiving advance amount of Rs.4,00,000/- but the very plaint averments and the evidence of PW1 would show that the alleged cheque of Rs.4,00,000/- was dated 10.2.2001. So what he contended that as on the date of execution of alleged Ex.P2 the alleged amount of Rs.4,00,000/- was not at all given to the defendant No. 1. He further contended that it is the contention of the plaintiff that prior to execution of Ex.P2 alleged agreement of sale defendant No. 1 sent a letter as per Ex.P1 65 expressing his intention to sell the suit schedule property. He further contended that the perusal of the said document would show that at the top of the said document date is mentioned as 15.1.2001 and in the bottom of the said document date is mentioned as 15.10.2001. So what he contended that the above said aspect itself would clearly goes to show that the said Ex.P1 is also got manipulated by the plaintiff in collusion with the brother of defendant No. 1 by name Ranganath and even the learned counsel for the plaintiff has not given proper explanation why the two dates is forthcoming in Ex.P1 document. He further contended that even Ex.P3 no objection letter relied upon by the plaintiff is an outcome of manipulation of documents by the plaintiff and Ranganath. So also the signature forthcoming in Ex.P7 postal acknowledgment is not that of defendant 66 No. 1 and it is also the manipulation by Ranganath who is the brother of defendant No. 1. So what he contended that the above aspect itself would clearly goes to show that the report of the Hand Writing Expert is itself a conclusive proof to prove the factum of Ex.P2 alleged agreement of sale is got created by the plaintiff in collusion with the brother of defendant No. 1 by name Ranganath.
32. He further contended that because of the problem posed by the plaintiff and Ranganath the brother of the plaintiff the defendant No. 1 was forced to enter into transaction with defendant No. 3 and borrowed money from him. So he executed Power of Attorney in his favour as he was indebted to him. He further contended that the said defendant No. 3 who is the Power of Attorney holder of defendant No. 1 sold the suit schedule property in 67 favour of defendant No. 2 on 18.4.2002 as per Ex.P10 as because the defendant No. 1 was indebted some amount to him. He further contended that by virtue of the sale deed executed by defendant No. 3 in favour of defendant No. 2 he got changed Khatha in respect of the suit schedule property and himself was paying taxes in respect of the suit schedule property. He further contended that subsequently the defendant No. 2 executed registered sale deed in favour of defendant No. 5 in the year 2004 and now the defendant No. 5 is in peaceful possession and enjoyment of the suit schedule property. So he contended that when things stood like so the whole contention of the plaintiff that the defendant No. 1 has executed alleged Ex.P2 agreement of sale does not arise at all and when the defendant No. 1 has not at all executed alleged Ex.P2 the question of 68 readiness and willingness does not arise and also question of paying damages and restraining him from alienating the property does not arise at all.
33. He further contended that the plaintiff is a money lender and he used to give loan to so many persons by obtaining blank signed stamp papers and signed blank cheques and on the basis of the same he has filed several cases and even he had two sons by name Girish Kumar and Harish Kumar and even in the name of his son Girish Kumar he has given loan and on his behalf he has filed recovery suit which is very evident from Ex.D1, i.e., plaint in O.S.No.2000/2003. He further contended that though the plaintiff denying that he is not a money lender but the very evidence given by him in cross- examination it would show that he has given loan amount to A.Gopal Krishna Raju, i.e., PW2, Sri 69 Ranga and such other persons and the said aspect itself would clearly goes to show that the plaintiff is a money lender. He further contended that at the time of lending money he used to obtain blank signed papers from the parties who have taken loan from him and subsequently he mis-utilised the same. He further contended that the very documents produced by DW1 at Ex.D12, i.e., the judgment and decree passed in O.S.No.1369/2010 would clearly shows that wherein it is held that the plaintiff is a money lender. What he contended that the very oral and documentary evidence on record would clearly shows that the plaintiff is a money lender and on the basis of the signed blank cheques and blank stamp papers obtained by him at the time of lending money and subsequently he used to got create the documents as if executed agreement of sale and such 70 other documents for his convenience. He further contended that the evidence on record would show that the plaintiff is a money lender but the plaintiff without having licence to do the money lending business as required under section 5 of Karnataka Money Lending Act, 1961 is doing the money lending business and even on the said score itself the suit of the plaintiff is liable to be dismissed as not maintainable. So in view of his above arguments he urged to answer issue No. 1 and 2 in the Negative and issue No. 3, additional issue No. 1, additional issue No. 2 and additional issue No. 3 in the Affirmative.
34. The learned counsel for the defendant No. 2 and 5 in his written arguments contended that the plaintiff has filed the present suit on the ground that the 1 st defendant has executed agreement of sale in 71 his favour agreeing to sell the suit schedule property and has also received Rs.4,00,000/- as advance towards the same. He further contended that the main ingredient to be proved in this case by the plaintiff is whether there is any agreement of sale of the suit schedule property as contended by him and the whole case is standing on this point and the plaintiff cannot stand on the evidence given by the defendant but he should prove the point on his own. He further contended that in view of defendant No. 1 denying his signature in Ex.P2 agreement of sale he has sent the same to the Hand Writing Expert to compare the same with the admitted signature of defendant No. 1 found in the case papers. Subsequently the Hand Writing Expert submitted the report by saying that the signature forthcoming in Ex.P2 is not of defendant No. 1. He further 72 contended that inspite of the same, it has not been challenged by the plaintiff till date and the same has become final, as such it is proved that the alleged Ex.P2 agreement of sale is not executed by the 1 st defendant in favour of the plaintiff. When such would be the case the question of considering the other aspects, i.e., to say other issues does not arise at all. He further contended that the very document produced by the plaintiff at Ex.P10, i.e., the sale deed executed by defendant No. 1 through his Power of Attorney holder, i.e., defendant No. 3 in favour of defendant No. 2 would show that the same was executed on 18.4.2002 and on the basis of the same he got entered his name in the revenue documents and he himself paying the taxes. He further contended that subsequently the defendant No. 2 executed sale deed in favour of defendant No. 5 in 73 respect of the suit schedule property in the year 2004 and now the defendant No. 5 is in peaceful possession and enjoyment of the suit schedule property. What he contended that both defendant No. 2 and 5 by ascertaining the valid title of the defendant No. 1 in respect of the suit schedule property the defendant No. 2 has purchased the same from defendant No. 3 who is the Power of Attorney holder of defendant No. 1 and in turn defendant No. 5 after verifying the valid title in respect of the suit schedule property has purchased the same. So he contended that both defendant No. 2 and 5 are bonafide purchasers of suit schedule property and they have been unnecessarily made as parties to the proceedings. He further contended that even there is no relief sought against these defendants. So in view of his above arguments he urged to answer issue No. 74 3 and additional issue No. 1 in the Affirmative by holding that defendant No. 2 and 5 are bonafide purchaser of suit schedule property for valuable consideration without notice of prior agreement.
35. In the light of the arguments canvassed by the respective counsels for the parties, I have gone through the records. Admittedly this is a suit filed by the plaintiff seeking the relief of specific performance of the sale agreement dated 1.2.2001 executed by the 1 st defendant, for possession, to hold the sale deed dated 18.4.2002 executed by 3 rd defendant in favour of 2 nd defendant is void and not binding on the plaintiff, for grant of damages at the rate of Rs.10,000/- and for permanent injunction. In the alternative he sought for refund of payment of Rs.4,00,000/- together with interest thereon at 2% per annum.
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36. It is the specific case of the plaintiff that the defendant No. 1 has agreed to sell the suit schedule property for total sale consideration of Rs.4,15,000/- and accordingly executed agreement of sale as per Ex.P2 on 1.2.2001 and received a sum of Rs.4,00,000/- through cheque bearing No. 334774 dated 10.2.2001. It is the contention of the plaintiff that it was agreed between the parties to complete the sale transaction within two years from the date of execution of Ex.P2 agreement of sale by receiving balance sale consideration amount of Rs.15,000/-. It is the contention of the plaintiff that though he requested the defendant No. 1 to execute the registered sale deed in respect of the suit schedule property by receiving the balance sale consideration of Rs.15,000/-, but the defendant No. 1 went on postponing the execution of registered sale deed on 76 one or the other pretext. So the plaintiff by suspecting the conduct of defendant No. 1 applied and obtained encumbrance certificate as per Ex.P8 and Ex.P9 and then he came to know with regard to the factum of defendant No. 1 through his Power of Attorney holder, i.e., defendant No. 3 executed sale deed in respect of suit schedule property for sale consideration of Rs.90,000/- on 18.4.2002 as per Ex.P10 sale deed in favour of defendant No. 2. So the plaintiff caused legal notice to the defendant No. 1 as per Ex.P4 calling upon him to execute registered sale deed in respect of the suit schedule property by receiving the balance sale consideration amount of Rs.15,000/-. The said notice was served upon defendant No. 1 and to prove the said aspect he has produced postal acknowledgment at Ex.P7. It is the contention of the plaintiff that inspite of having 77 received Ex.P4 legal notice the defendant No. 1 has not come forward to execute the registered sale deed by receiving balance sale consideration of Rs.15,000/- though he is always ready and willing to perform his part of contract.
37. When the plaintiff has come up with the above said stand, it is for the plaintiff to prove the said aspect by placing acceptable oral and documentary evidence. It is the very firm stand of the defendant No. 1 that at any point of time he has executed alleged Ex.P2 agreement of sale in favour of defendant No. 1. It is the contention of the defendant No. 1 that the father of him by name Sathya Narayana along with his sons doing business under the name and style "M/s.Vijaya Engineering Services". After the death of his father Sathya Narayana the brother of defendant No. 1 by name 78 Ranganath was taking care of the entire business. It is the contention of the defendant No. 1 that his brother Ranganath took his signature to the blank letter heads, blank cheques and blank stamp papers on the ground that as they are required for the purpose of business transaction and income tax purpose. It is the contention of the defendant No. 1 that after the death of his father his brother Ranganath was not in good terms with him. So by taking advantage of having obtained signature to blank letter heads, blank cheques and blank stamp papers his brother Ranganath in collusion with the plaintiff got manipulated and created alleged Ex.P2 agreement of sale. It is the contention of the defendant No. 1 that his brother Ranganath was working as Assistant under the plaintiff and they have by got creating so many documents as created 79 in the present suit filed suit against so many persons through the wife of plaintiff and his son and all these suits came to be dismissed. It is the contention of the defendant No. 1 that the plaintiff is doing money lending business and at the time of giving loan he used to obtain signed blank cheques and blank stamp papers from the borrowers and subsequently in collusion with the brother of defendant No. 1 Ranganath they got manipulated and created the documents as if the parties agreed to sell the suit property. So it is the specific stand of defendant No. 1 that Ex.P2 alleged agreement of sale is a concocted and created documents and at any point of time he has not executed the said document and even the signature forthcoming is not that of him.
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38. In the light of the above rival contentions on going through the records it would show that Ex.P2 alleged agreement of sale is dated 1.2.2001. The averments made in the plaint and the evidence of PW1 would show that according to plaintiff the defendant No. 1 on the above said date received Rs.4,00,000/- out of total sale consideration amount of Rs.4,15,000/- under cheque bearing No. 334774 dated 10.2.2001. The important point to be taken note of here is that though alleged Ex.P2 agreement of sale was according to the plaintiff executed on 1.2.2001, but on the said date the consideration amount was not paid to the defendant No.1. The very averments made in the plaint and the affidavit evidence of PW1 would also depicts the said aspect. Even PW1 in his cross-examination at page No. 15 last para he has stated that he paid Rs.4,00,000/- to 81 the account of defendant No. 1 in Syndicate Bank as per Ex.P11. So also in the same para he has admitted that he has issued post-dated cheque, i.e., issued cheque on 10.2.2001 and also admitted that on 1.2.2001 he was not having sufficient amount, as such he has issued post-dated cheque. The above evidence given by PW1 in the cross-examination would clearly shows that no prudent man will execute agreement of sale agreeing to sell the suit schedule property without receiving any advance amount in part performance of the contract. Another important aspect to be taken note of here is that it is the contention of the plaintiff that the defendant No. 1 himself offered to sell the suit schedule property for total sale consideration amount of Rs.4,15,000/- and accordingly he issued Ex.P1 letter dated 15.1.2001. I have gone through the said 82 letter, wherein at the top of the said letter the date is mentioned as 15.1.2001 and in the bottom of the said letter the date is mentioned as 15.10.2001. The point to be taken note of here is that why the two dates has been mentioned in Ex.P1 is not satisfactorily explained by the plaintiff in his evidence or the learned counsel representing the plaintiff during the course of his arguments. Even the said fact has been admitted by PW1 in his cross- examination at page No. 15. The non-explanation on the part of the plaintiff why two dates has been mentioned in Ex.P1 letter goes to create a doubt in the mind of the court about the said letter was really sent by defendant No. 1. As it is already stated above after the death of father of defendant No. 1 the brother of defendant No. 1 Ranganath was taking care of the business and for the said purpose the 83 defendant No. 1 contended that he took his signature to the blank letter heads, blank cheques and blank stamp papers on the ground that the same are required for the business purpose and also for income tax purpose. The plaintiff has produced Ex.P3 no objection letter from the Vijaya Engineering Services. It is the contention of the defendant No. 1 that even the said document without his knowledge has been got created by the plaintiff in collusion with his brother Ranganath. It is the contention of the plaintiff that he caused Ex.P4 legal notice calling upon the defendant No. 1 to execute the registered sale deed by accepting balance sale consideration amount of Rs.15,000/-. But inspite of the same defendant No. 1 has not come forward to perform his part of contract. It is the contention of the defendant No. 1 that Ex.P4 notice was not at all 84 received by him and his brother Ranganath has made arrangement, as the said notice was received by defendant No. 1 and the very signature forthcoming in Ex.P7 postal acknowledgment is of the defendant. The defendant No. 1 has totally denied his signature in Ex.P7. Except the said document there is no other supporting documents to show Ex.P4 notice was duly served upon defendant No. 1, as because it is already stated above the contention of the defendant is that his brother Ranganath was not in good terms after the death of his father and he is in hand in glove with the plaintiff and got created all documents on the basis of the signature obtained of him in blank letter heads, blank cheques and blank stamp papers and even he himself has played on tricks as if Ex.P7 postal acknowledgment was signed by defendant No.1. The learned counsel for the 85 plaintiff during the course of cross-examination of DW1 tried to elicit from his mouth that at the time of executing the alleged Ex.P2 agreement of sale the defendant No. 1 himself has handed over title deeds relating to the suit schedule property, but DW1 stood very firm in his say and he has denied the said suggestion made by the learned counsel representing the plaintiff at page No. 13 of his cross-examination. Per contra DW1 in his cross-examination at page No. 18 stated that after the death of his father, his brother Ranganath was taking care of the business and he handed over all the original title deeds of the suit schedule property to Ranganath. Even nothing worth has been elicited by the learned counsel representing the plaintiff that the defendant No. 1 himself has directly handed over the title deeds relating to the suit schedule property to the plaintiff. 86 The very said evidence given by DW1 in the cross- examination would clearly goes to show that the plaintiff in collusion with the brother of defendant No. 1 Ranganath got manipulated Ex.P2 alleged agreement of sale and Ranganath brother of the defendant and after receiving title deeds relating to the suit schedule property handed over the same to the plaintiff for the best reasons known to them. In this case no doubt DW1 in his cross-examination at page No. 12 admitted depositing of Rs.4,00,000/- to his account, but it is the very specific stand of the defendant No. 1 that all these things have been done by his brother Ranganath in collusion with plaintiff and he does not know when they have deposited the said amount. Merely depositing Rs.4,00,000/- in the account of defendant No. 1, one cannot presume and assume that the same was deposited by plaintiff in 87 pursuance of execution of alleged Ex.P2 agreement of sale the plaintiff has deposited the said amount. As because the whole stand of the defendant in his written statement Ex.P2 alleged agreement of sale is a concocted and created document and the same came into existence by the collusive act of plaintiff and his brother Ranganath.
39. Another important aspect to be taken note of here is that the evidence of PW1 would show that he is an income tax assessee and admittedly the plaintiff has produced IT returns at Ex.P15 to Ex.P18. If according to the plaintiff he has paid Rs.4,00,000/- to defendant No. 1 on the date of execution of alleged Ex.P2 agreement of sale certainly the said aspect would have been reflected in his IT returns as referred above. But admittedly the same has been not shown by plaintiff in his IT returns. At this 88 juncture it would be relevant to quote the evidence given by PW1 in his cross-examination at page No. 24 last three lines and page No. 25 from the top which reads as under:
"I have produced IT returns copy with statement of income submitted in my individual capacity for the years 2000-01 and 2001-02 and are marked as Ex.P15 and Ex.P16.
Similarly IT returns of my HUF with statement of income are marked as Ex.P17 and Ex.P18. Amount of Rs.4,00,000/- paid to defendant No. 1 under the said sale agreement has been declared to IT authorities but it is not disclosed in my IT returns Ex.P15 and Ex.P16. This account was paid from my individual account. I do not have documents to show that I had declared before IT 89 authorities the payment of Rs.4,00,000/- to defendant No. 1."
40. Again PW1 in his cross-examination at page No. 25, 2 nd para wherein he has deposed as under:
"I have not maintained account
books for showing any of the
payments made to Ranganath,
Manjunath, Nagendra and
Gopalakrishna and the amount paid
under said sale agreement."
41. The above said evidence of PW1 would clearly shows that though they have deposited Rs.4,00,000/- in the account of defendant No. 1, but the same is not declared in his IT returns nor in the note book maintained by him. When that would be the case the say of defendant No. 1 has to be accepted that his brother after the death of his father acting 90 detrimental to his interest and colluding with the plaintiff got created so many documents. It is the contention of the plaintiff that defendant No. 1 for having received Rs.4,00,000/- under Ex.P2 alleged agreement of sale passed receipt as per Ex.P12. So he contended that that aspect itself proves the defendant No. 1 agreed to sell the suit schedule property for total sale consideration amount of Rs.4,15,000/- and received advance amount of Rs.4,00,000/- and accordingly passed Ex.P12 receipt. So far as the said contention of the plaintiff is concerned it can be said that even the said receipt also came to be issued on 10.2.2001, but not on 1.2.2001. As it is already stated above no prudent man will execute agreement of sale without accepting advance amount on the date of executing of the agreement of sale. As it is already stated above PW1 91 in his evidence admitted that there was no sufficient amount in his account on the date of execution on 1.2.2001, as such he issued post-dated cheque dated 10.2.2001. So also upon perusal of Ex.P12 receipt it would show that two witnesses have signed the said document. One is Sri Ranga and another person is Gopal Krishna Raju. Both the witnesses in many of the transaction made by the plaintiff along with the brother of defendant No. 1 Ranganatha these two persons are putting their signature as witnesses. PW2 in his cross-examination at page No. 3 admitted that his affidavit evidence was prepared by the counsel of plaintiff and he just signed the same. So also the evidence given by PW2 in his cross- examination would show that wherein he has stated that alleged Ex.P2 agreement of sale entered on 10.02.2001. So also PW2 in his cross-examination at 92 page No. 4, 3 rd para admitted that he was not present at the time of payment of Rs.4,00,000/- to defendant No.1. The above evidence given by PW2 would clearly goes to show that he does not know anything about the alleged Ex.P2 transaction and he is giving evidence before the court only at the instance of plaintiff and looking into the circumstances of the case it cannot be ruled out the hand of the brother of defendant No. 1 Ranganath in the above said aspect. The very evidence given by PW2 in his cross-examination at page No. 5 would show that he also used to take money from plaintiff and also admitted that he has received Rs.2,25,000/- from the plaintiff. So also the evidence given by PW1 in his cross-examination at page No. 17 at 4 th and 5 th para admitted that he has given loan to one Mahalingamma and then subsequently he filed cheque 93 bounce case against the said person. So also PW1 in his cross-examination at page No. 17 admitted that O.S.No.2000/2003 as per Ex.D1 was filed by his son Girish Kumar and he represented the case as Power of Attorney holder of his son. So the above said aspect would clearly goes to show that even Ex.P2 is also got created by the plaintiff in collusion with the brother of defendant No. 1 by name Ranganath. The perusal of alleged Ex.P2 agreement of sale would show that wherein the brother of defendant No. 1 Ranganath put his signature as witness to the said document. Inspite of the same the plaintiff has not made any efforts to examine the said Ranganath before the court to prove the execution of alleged Ex.P2 agreement of sale and receipt of Rs.4,00,000/- out of the total sale consideration amount of Rs.4,15,000/-. Under the above said circumstance 94 the contention of the plaintiff that the defendant No. 1 himself has passed Ex.P12 receipt for having received Rs.4,00,000/- cannot be accepted.
42. It is the contention of the defendant No. 1 that the plaintiff in collusion with his brother got created so many documents and filed cases against so many persons. In the light of the said contention of defendant No. 1 if we look into the evidence on record it would show that PW1 during the course of his cross-examination at page No. 10 admitted that his wife by name B.G.Bharathi filed O.S.No. 4751/2002 against Ranganath and his cousin brother R.Ashwath Narayana for evicting from property No. 14 where defendant No. 1 is residing. He further contended that the very evidence given by PW1 would show that the said suit was dismissed though the brother of defendant No. 1 Ranganath said in the 95 said suit that he has no objection to decree the suit. He further contended that being assailed by the said judgment and decree the plaintiff of the said suit represented by her husband, i.e., plaintiff of the present suit preferred RFA No.874/2007 and even the said appeal was also came to be dismissed. At this juncture it would be relevant to quote the said portion of evidence at page No. 10, 2 nd para which reads as under:
"It is true to suggest that my wife filed O.S.No.4751/2002 against the said Ranganath and his cousin brother R.Ashwath Narayana for evicting them from property No. 14, where defendant No. 1 is residing and that suit was dismissed and as well her RFA No.874/2007 was dismissed."96
43. The above said evidence given by PW1 would clearly supports the stand taken by defendant No. 1 that the plaintiff in collusion with this brother Ranganath got manipulated the documents obtained by them at the time of giving loan to the parties. What he contended that in the above referred suit also the lease deed was got manipulated by plaintiff in collusion with Ranganatha and filed that suit and ultimately the said suit was came to be dismissed. He further contended that even the wife of plaintiff by name S.G.Bharathi also filed O.S.No.1369/2010 against him, his brother Ranganatha and cousin brother Ashwath Narayana. So also the said suit was also filed by the plaintiff herein on behalf of his wife as her Power of Attorney holder. It is the contention of the defendant No. 1 that the said suit was also came to be dismissed. In fact the 97 defendant No. 1 in support of his above contention produced the certified copy of the judgment and decree passed in the above referred suit at Ex.D12. The perusal of the same would show that the said suit filed by the plaintiff herein as PA holder of his wife was came to be dismissed by judgment and decree dated 27.4.2017. Even the above said aspect has been admitted by PW1 in his cross-examination at page No. 10, 3 rd para. So the contention taken by defendant No. 1 as stated above would clearly goes to show the conduct of the plaintiff and the brother of defendant No.1 in filing false suits by got creating and manipulating the documents.
44. As it is already stated above the defendant No. 1 has denied the execution of alleged Ex.P2 agreement of sale on 1.2.2001 and also he specifically denied the signature forthcoming therein 98 is not of him. He further contended that at any point of time he has not handed over the title deeds of the suit schedule property to the plaintiff. It is the specific stand of the defendant No. 1 that after the death of his father Sathya Narayana, his brother Ranganath was taking care of the business run by them under the name and style of "M/s.Vijaya Engineering Services". PW1 in his cross-examination at page No. 20 admitted that the brother of defendant No. 1 Ranganath taking care of defendant No.4 firm, i.e., "M/s.Vijaya Engineering Services". So also the perusal of the evidence given by him in his cross-examination in the same page it would show that he pleaded his ignorance that Ranganath was operating the account of defendant No. 1. So also PW1 in his cross-examination in the same page at 4 th para pleaded his ignorance with regard to the 99 factum that title deeds relating to the suit schedule property are in the custody of Ranganath and also at page No. 21, 4 th para he pleaded his ignorance that D1 had issued blank cheques signed by him to Ranganath as he was looking after all the transaction of defendant No. 1. The above evidence given by PW1 in his cross-examination would clearly goes to show that he has not whole heartedly denied the factum of original title deeds relating to the suit schedule property are handed over to Ranganath and the said Ranganath himself operating the account of defendant No. 1, but he admitted that Ranganath was taking care of the business of defendant No.4 firm. When that would be the case the contention of the defendant No. 1 that the plaintiff in collusion with his brother by obtaining his signature on blank stamp paper got manipulated Ex.P2 alleged agreement of 100 sale cannot be ruled out. So also the above evidence given by DW1 would clearly goes to show that without the knowledge of defendant No. 1 in collusion with Ranganath the plaintiff has deposited Rs.4,00,000/- in the account of defendant No. 1. So looking into the above said aspect it can be said that the plaintiff in the habit of filing false suits in collusion with the brother of defendant No. 1 by name Ranganath by obtaining blank signed stamp papers and such other documents against the persons who have taken money from him.
45. Another important aspect to be taken note of here and also why a doubt may arise to accept the stand taken by the plaintiff in the present suit and the genuinity of Ex.P2 alleged agreement of sale is that according to the plaintiff he has paid Rs.4,00,000/- as advance amount out of total sale 101 consideration amount of Rs.4,15,000/- on 1.2.2001 on the date of execution of alleged Ex.P2 agreement of sale, but the evidence on record would show that in fact the said amount was not paid on the said date and PW1 himself admitted that for the said amount he has given post-dated cheque on 10.2.2001. So the above aspect would clearly shows that almost 95% of the alleged sale consideration amount according to the plaintiff paid to the defendant No. 1 and only amount is to be paid is Rs.15,000/- and for that purpose time duration in the alleged Ex.P2 agreement of sale is two years. The remaining amount is very small amount and why two years has been shown in the alleged Ex.P2 for completion of transaction is not explained either by the plaintiff in the plaint or in his evidence or the learned counsel during the course of his arguments has given proper explanation why 102 two years time fixed for completion of the transaction. Even the perusal of Ex.P2 alleged agreement of sale would show that no reasons has been assigned for fixing two years time to complete the transaction and even the said aspect has been admitted by PW1 in his cross-examination at page No. 29. Another important aspect to be taken note of here is that admittedly Ex.P4 legal notice was issued by the plaintiff to defendant No. 1 on 3.4.2002 and the perusal of Ex.P2 alleged agreement of sale show that it was alleged to be entered on 1.2.2001. From 1.2.2001 till 3.4.2002 absolutely there is no correspondence in between the plaintiff and defendant No. 1 in respect of execution of sale deed in pursuance of alleged Ex.P2 agreement of sale. Even the said aspect has been admitted by PW1 in his cross-examination at page No.30. In his 103 cross-examination he has specifically stated that in between the said period there is no written correspondence with regard to the completion of transaction. The above said circumstance also would clearly goes to creates a doubt in the mind of the court with regard to the execution of alleged Ex.P2 agreement of sale and also the above said aspect as discussed above would clearly supports the stand of defendant No. 1 that the plaintiff in collusion with the brother of defendant No. 1 by name Ranganath are in the habit of got manipulated the signed documents obtained at the time of giving loan to the parties. The very document produced by the defendant No. 1 at Ex.D4, i.e., the letter sent by his brother Ranganath to him would show that the resignation letter tendered by defendant No. 1 to defendant No. 4 business firm was accepted by him 104 on 31.3.2001. So also the very document produced by the defendant No. 1 at Ex.D5, i.e., complaint given to the police and Ex.P7 is the letter sent by D1 to the Manager of Canara Bank and letter sent by D1 to the Registrar of Firms with regard to the unlawful act of the plaintiff in collusion with his brother Ranganath. The perusal of the said documents would clearly shows that the defendant No. 1 being fed up with the act and attitude of his brother in collusion with plaintiff has tendered resignation to defendant No. 4 firm and lodged complaint to the above said authorities. The learned counsel representing the plaintiff during the course of cross-examination of DW1 has not cross-examined about these documents. So the said aspect itself would also support the stand taken by the defendant No. 1 that being fed up with the act and attitude of his brother Ranganath in 105 collusion with plaintiff he has given complaint to the above said authorities.
46. As it is already stated above and also it is the specific stand of defendant No. 1 that alleged Ex.P2 agreement of sale dated 1.2.2001 is a concocted and created document. He has denied his signature forthcoming in the said document. So also the defendant No. 1 has denied the Ex.P1 letter sent to the plaintiff and admittedly as already discussed above there are two dates on the top of the said letter and at the bottom of the said letter and absolutely no explanation by the plaintiff nor his counsel why two dates forthcoming in the said documents. The defendant has also denied passing of Ex.P12 receipt. So when defendant No. 1 has specifically denied his signature in Ex.P2 alleged agreement of sale. The learned counsel for the 106 plaintiff has come up with the application, i.e., I.A.No.21 under Order 26 Rule 10-A r/w section 151 C.P.C. to refer Ex.P2 to the Hand Writing Expert along with the admitted signature of defendant No. 1 to compare the same and to give their opinion as to the disputed signature in Ex.P2. Admittedly the said application was allowed and the disputed documents, i.e., Ex.P2 along with admitted signature of defendant No.1 sent to the Hand Writing Expert. The Hand Writing Expert authorities after comparing the admitted signature and disputed signature forthcoming in Ex.P2 alleged agreement of sale were submitted the report by saying that admitted signature and disputed signature are not belong to the same person. What they stated in their report is that the disputed signature forthcoming in Ex.P2 alleged agreement of sale is not that of defendant 107 No.1. Inspite of the said report goes against the plaintiff, he did not chosen to file any objection to the said report and also he has not made any attempts to summon the person who has given the said report to examine before the court. So the said report itself is a conclusive proof. The said report given by the Hand Writing Expert is a conclusive proof that Ex.P2 alleged agreement of sale is a concocted and created document and the same has been done by the plaintiff in collusion with the brother of the defendant by name Ranganath. The very contents of affidavit enclosed to I.A.No.21 would show that wherein at para No. 5 the plaintiff stated that he was filing the said application as he has no other alternative except to prove the same by referring the signature of Ex.P2 document to the Hand Writing Expert along with the admitted 108 signature of defendant No. 1. The very contention taken by the plaintiff in the affidavit enclosed to the application in the above said para would clearly falsify his stand that Ex.P1 letter alleged to be sent by defendant No. 1 to him and alleged Ex.P12 receipt passed by defendant No. 1 and they are got created and manipulated by the plaintiff in collusion with the brother of defendant No. 1 by Ranganath. If according to the plaintiff if the said Ex.P1 letter is sent by defendant No. 1 and Ex.P12 receipt passed by defendant No. 1 certainly he would have referred the said two disputed documents to the Hand Writing Expert to get their opinion. The above said aspect itself would clearly goes to show that Ex.P2 alleged agreement of sale is a concocted and created document by the plaintiff in collusion with Ranganath who is none other than the brother of 109 defendant No. 1 for the best reasons known to them. When things stood like so the contention of the plaintiff that Ex.P2 alleged agreement of sale dated 1.2.2001 was executed by defendant No. 1 cannot be accepted and when that would be the question of plaintiff always ready and willing to perform his part of contract does not arise at all.
47. The defendant No. 2 and defendant No. 5 in the written statement contended that they are the bonafide purchasers of the suit schedule property for valuable consideration without notice of the earlier agreement. Further the perusal of their written statement would show that the defendant No. 2 denied the case of plaintiff and the defendant No. 5 in his written statement contended that the plaintiff has no right to make him as a party in the present proceedings and also no allegation has been made 110 against him in the suit. So also the defendant No. 5 in his written statement contended that the defendant No. 1 has not entered into any alleged agreement of sale with the plaintiff and the plaintiff has filed the present suit only to harass him. He further contended that there is no cause of action against him and the cause of action shown against the other defendants will not be the cause of action against him.
48. The defendant No. 2 in his written statement contended that he is a bonafide purchaser of the suit schedule property from defendant No. 3 who is a General Power of Attorney holder of defendant No. 1 for valuable consideration of Rs.90,000/- under sale deed dated 18.4.2002. He further contended that after verifying the title deeds of the suit schedule property standing in the name of defendant No. 1 he 111 purchased the same from his General Power of Attorney holder, i.e., defendant No. 3. In this case DW1, i.e., defendant No. 1 herein in his cross- examination at page No. 17 stated that he has obtained loan from Subramani who is none other than defendant No. 3 in the present case. As such for the purpose of repayment of loan amount defendant No. 3 executed sale deed in favour of defendant No. 2 on his behalf as per Ex.P10. At this juncture it would be relevant to quote the said portion of evidence at page No. 17 in the middle portion which reads as under:
" ಸಸಬಬಮಣ ಎನಸನವವರರದ ನನನಸ ಈ ಹರದದ ಸನಲ ಪಡದದದಸದ ಅದರ ಮರಸಪನವತಗನಗ ನಶನನದ ಪ.10 ರ ಕಬಯಪತಬವನಸನ ನನನ ಪರವನಗ ಸಸಬಬಮಣ ಎನಸನವವರಸ ಕದಕರರಲಲ ಗದ ಮನಡಕದರಟಟದದರಸ.
ನಶನನದ ಪ.10 ರಲಲ ನನನ ಛನಯನಚತಬ
ಕರಡಸಬರಸತತದದ ಎನಸನವವದಸ ನಜ . ಸದರ
112
ಛನಯನಚತಬವನಸನ ನಶನನದ ಪ.10(ಎ) ಎರದಸ
ಗಸರಸತಸಲನಯತಸ ."
49. DW1 in his cross-examination at page No. 16
stated that after he executing Power of Attorney in favour of Subramani, i.e., defendant No. 3 herein he is no way concerned with the suit schedule property.
At this juncture it would be relevant to quote the said portion of evidence at page No. 16, 1 st para, last three lines which reads as under:
" ಸಸಬಬಮಣಗದ ನನನಸ ಮಕತರಲ ನನಮ ಮನಡಕದರಟಟ ನರತರ ನನಗರ ಮತಸತ ದನವನ ಆಸತಗರ ಯನವವದದಕ ಸರಬರಧ ಇರಲಲಲ ಎರದಸ ಸನಕಕ ನಸಡದದನದರದ ."
50. Looking into the above evidence given by DW1 in his cross-examination it would clearly states that since he has taken some amount from defendant No. 3, as such he has executed Power of Attorney in favour of him and in turn defendant No. 3 on the 113 strength of the said Power of Attorney executed Ex.P10 sale deed in favour of defendant No. 2 on 18.4.2002. The evidence given by DW1 as referred above would clearly shows that after he executing Power of Attorney in favour of defendant No. 3 he is no way concerned with the suit schedule property. So from the above evidence of DW1 it can be said that defendant No. 2 is a bonafide purchaser of suit schedule property for a valuable consideration. Though the learned counsel representing the plaintiff cross-examined PW2, i.e., defendant No. 2 herein but nothing worth has been elicited to disbelieve his contention that he is a bonafide purchaser of the suit schedule property. The defendant No. 2 who has been examined as DW2 in this case has stated in his evidence that after he having purchased the suit schedule property under Ex.P10 sale deed he got 114 Khatha in respect of the suit schedule property in his name and he himself paying the taxes. Even to disbelieve the said evidence nothing worth has been elicited in his cross-examination by the learned counsel representing the plaintiff. When that would be the case it can be said that defendant No. 2 is a bonafide purchaser of the suit schedule property for a valuable consideration.
51. As it is already stated above defendant No.5 in his written statement and also in his evidence, who has been examined as DW3 has stated that he has purchased the suit schedule property from defendant No. 2 in the year 2004 for valuable consideration. He further stated that after thorough enquiry with regard to the title of the suit schedule property he has purchased the same. So he contended that he is a bonafide purchaser of the suit schedule property 115 for valuable consideration and now he is in possession and enjoyment of the same. The plaintiff in his plaint nor in his evidence has not stated about this defendant No. 5, who has been examined as DW3. So also in the prayer column the plaintiff has not sought any relief against defendant No. 5. Even the learned counsel representing the plaintiff cross- examined him at length but nothing worth has been elicited to disbelieve the say of defendant No. 5 that he is a bonafide purchaser of the suit schedule property. When things stood like so and as it is already discussed above the plaintiff has failed to prove the execution of alleged Ex.P2 agreement of sale, it is needless to say that the defendant No.2 and 5 are bonafide purchasers of the suit schedule property, i.e., to say the defendant No. 2 purchased the suit schedule property from the Power of 116 Attorney of defendant No. 1, who is defendant No. 3 and in turn defendant No. 5 purchased the suit schedule property for a valuable consideration from defendant No. 2. When things stood like so it can be said that the defendant No. 2 and 5 are the bonafide purchasers of the suit schedule property.
52. Now coming to the contention of defendant No. 1 that the plaintiff is a money lender and he has given loan to so many persons, i.e., to say Mahalingamma, A.Gopal Krishna Raju, Sri Ranga and such other persons. It is the contention of the plaintiff that the plaintiff doing money lending business. As such the suit of the plaintiff is not maintainable. Even the learned counsel for the defendant No. 1 during the course of his arguments contended that the evidence on record would clearly shows that the plaintiff is doing money lending 117 business and the very judgment and decree passed in O.S.No.1369/2010 would show that wherein it is observed that the Power of Attorney holder of plaintiff of said case, who is none other than the plaintiff in this case is a money lender. It is the submission of the learned counsel for the defendant No. 1 that the plaintiff herein doing money lending business without obtaining licence as required under section 5 of the Karnataka Money Lenders Act, 1961, as such the suit of the plaintiff is not maintainable.
53. The point to be taken note of here is that the plaintiff has filed the present suit seeking the relief of specific performance of contract, i.e., to say the plaintiff has filed the present suit on the basis of Ex.P2 alleged suit document, agreement of sale dated 1.2.2001 and for such other reliefs. The discussion made above would clearly shows that the plaintiff 118 has failed to prove the execution of alleged Ex.P2 agreement of sale dated 1.2.2001. When the plaintiff has basically failed to prove the main suit document the question of considering the issue that the plaintiff is a money lender, as such the present suit filed by him is not maintainable does not arise. For the foregoing reasons and discussions this court is of the opinion that the plaintiff has failed to prove his stand and the defendant No. 1, 2 and 5 have succeeded to prove the stand taken by them. Accordingly issue No. 1 and 2 are answered in the Negative and issue No. 3, additional issue No. 1 and additional issue No. 2, are answered in the Affirmative. Additional issue No. 3 is answered as it does not survive for consideration.
54. Issue No. 4: The defendants in their written statement contended that the plaintiff has not 119 properly valued the suit and the court fee paid by the plaintiff is incorrect. The perusal of the written statement filed by the defendants would show that though they contended like so but no where in the written statement they stated what is the required court fee to be paid by the plaintiff. Per contra the perusal of the valuation slip enclosed to the plaint would show that the plaintiff has paid total court fee amount of Rs.28,500/- as per section 26(c) and section 40(a) of Karnataka Court Fees and Suit Valuation Act as per the reliefs sought by him in the present suit. Accordingly issue No. 4 is answered in the Affirmative by holding that the suit is properly valued and the court fee paid by the plaintiff is just and proper.
55. Issue No. 6: As it is already discussed in detail in issue No. 1 to 3 and additional issue No. 1 to 3 120 that the plaintiff has failed to prove the alleged Ex.P2 agreement of sale dated 1.2.2001. When that would be the case the question of claiming damages or compensation at the rate of Rs.10,000/- per month does not arise at all. Accordingly issue No. 6 is answered in the Negative.
56. Issue No. 7: The plaintiff in this case sought alternative relief to direct the defendant to refund the advance amount of Rs.4,00,000/- along with interest. As it is already discussed in the above issues the plaintiff has basically failed to prove main suit document, i.e., alleged agreement of sale as per Ex.P2 dated 1.2.2001. When that would be the case the question of refund of Rs.4,00,000/- with interest to the plaintiff does not arise at all. Accordingly issue No. 7 is answered in the Negative. 121
57. Issue No. 8: The plaintiff sought the relief of permanent injunction against the defendants from further alienating or encumbering or part with the possession of the suit schedule property to any third parties in any manner whatsoever. Even the plaintiff is not entitled for the relief of permanent injunction, as because as it is already discussed in the above issues the plaintiff has failed to prove the suit main document, i.e., alleged Ex.P2 agreement of sale dated 1.2.2001. Accordingly issue No. 8 is answered in the Negative.
58. Issue No. 5: In view of my findings to the above issues the plaintiff is not entitled for any reliefs muchless the reliefs as sought by him. Accordingly issue No. 5 is answered in the Negative. 122
59. Issue No.9: In view of my findings to the above issues, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby dismissed.
No order as to cost.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in the open court on this the 5th day of March 2020.) (Sadananda M.Doddamani) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE Witnesses examined for the plaintiff/s :
PW1 - B.M.Chandraiah PW2 - A.Gopalakrishna Raju
Witness examined for the defendant/s :
DW1 - S.Manjunath
123
DW2 - K.D.Kerur
DW3 - B.G.Ramakrishna
Documents marked for the plaintiff/s :
Ex.P1 - Letter dated 15.1.2001
Ex.P2 - Agreement of sale
Ex.P2(a) - Signature of PW2
Ex.P3 - No objection letter
Ex.P4 - Office copy of legal notice
Ex.P5 - Postal receipt
Ex.P6 - Certificate of posting
Ex.P7 - Postal acknowledgment
Ex.P8 - encumbrance certificate
Ex.P9 - encumbrance certificate
Ex.P10 - certified copy of sale deed
Ex.P11 - Pass book
Ex.P12 - Receipt
Ex.P12(a) - Signature of PW2
Ex.P13 - Bank Pass book of Bengaluru City
Co-operative Bank
Ex.P14 - Pass book of SBM
Ex.P15,16 - IT Returns
Ex.P17,18 - IT Returns
124
Documents marked for the defendant/s :
Ex.D1 - certified copy of plaint
Ex.D2 - certified copy of deposition of PW2
Ex.D3 - certified copy of Lease agreement
Ex.D4 - certified copy of letter of S.Ranganath
Ex.D5 - certified copy of police complaint
Ex.D6 - copy of complaint
Ex.D7 - copy of letter
Ex.D8 - Copy of 'Sanjevani'
Ex.D9 - Letter written to 3 rd defendant
Ex.D10 - Certified copy of complaint
Ex.D11 - Copy of account of Thyagaraja Bank
Ex.D12 - Certified copy of Judgment and Decree
in O.S.No. 1369/2010
(Sadananda M.Doddamani)
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
125 Judgment pronounced in the open court (vide separate detailed Judgment) ORDER The suit of the plaintiff is hereby dismissed.
No order as to cost.
Draw decree accordingly.
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.