Bangalore District Court
Smt. Shantha Raghuram vs W/O Sri. A.K.Nagendra on 23 July, 2015
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
Dated this the 23rd day of July 2015.
PRESENT: S.V.KULKARNI, B.Com., LLB(Spl)
XI Addl.City Civil Judge, B'lore city.
O.S.No.10092 of 2005
C.C.H.8
Plaintiff: Smt. Shantha Raghuram,
aged about 43 years,
W/O Sri. M.R.Raghuram, Gokul
House, M.S.R.Road
Bangalore -560054
Represented by her duly authorized
power of attorney holder
Sri.M.R.Raghuram
(By Sri.G.B.M. Advocate)
: Vs :
1. Smt. Anuradha Nagendra
Defendant/s: W/o Sri. A.K.Nagendra,
aged about 51 years,
residing at Apartment No.311,
MNangalya Apartments,
Benson Cross Millers Road,
Bangalore.
2. Sri. S.R.Gangadhara,
aged about 28 years,
S/o Sri. Rudrayya,
residing at No.121/Y, 2nd Floor,
16th Main Road, 3rd Block,
Rajajinagar,
Bangalore-10
2 OS. No.10092 of 2005
3. Sri. Meerajawahar Ahmed,
aged about 32 years,
S/o Sri. Syed Sameeulla,
residing at Silur Solur Hobli,
Magadi Taluk,
Bangalore Rural District.
(D.1- expt.,
S.2& D.3- SVK Advocate)
Date of the institution of 15.12.2005
suit:
Nature of the suit: Specific performance
Date of the commencement 19.4.2006
of recording of the evidence:
Date on which the judgment 23.7.2015
was pronounced :
Total Duration Year/s Month/s Day/s
09 07 08
XI Addl.City Civil Judge,
B'lore city.
JUDGMENT
This is the suit filed by the plaintiff against defendants for the relief of specific performance of contract of agreement of sale executed by defendant No.1 dated 18.2.2005 in respect 3 OS. No.10092 of 2005 of suit schedule property and alternatively plaintiff has prayed for refund of earnest money of Rs.25-00 llakhs with interest at 24% p.a from the date of agreement till realization including the costs of suit.
2. The case of the plaintiff as stated in the plaint averments briefly stated as follows:-
Plaintiff's husband has filed this suit against defendant Smt. Aruna Nagendra as a P.A.Holder of plaintiff for specific performance of contract of agreement of sale dated 18.2.2005 . It is alleged by the plaintiff that 1st defendant being absolute owner of suit schedule property as mentioned in the plaint schedule ie., all the piece and parcel of immovable property bearing No. 65 out of Sy.No.49/1 and 51 as shown in the plaint schedule at Bagalakunte village, Yeshwanthapura Hobli, Bangalore North Taluk now coming under the limits of Dasarahalli City Municipal Council, measuring east to west 140 feet and north to south 133 feet in all measuring 18,620 square feet along with one old slope roofed house with all amenities and bounded:-
East by: site No.66;West by: Site No.62,63 and 64
North by: Road and South by: Private property 4 OS. No.10092 of 2005 The plaintiff's husband has been involved at every stage of the transaction and has been instrumental in the plaintiff entering into the subject transaction with the defendant. Photocopy of the power of attorney dated 13.6.2005 (Notary attested GPA as per Ex.P.6. The plaintiff further alleged that defendant No.1 being the absolute owner of suit schedule property agreed to convey the said property in favour of plaintiff for her legal and family necessity for sale consideration amount of Rs.22-00 lakhs and after negotiations between plaintiff and defendant No.1, 1st defendant had executed sale agreement in favour of plaintiff on 18.2.2005 and on that day, plaintiff has paid a sum of Rs.22-00 lakhs towards advance sale consideration amount to 1st defendant and 1st defendant had acknowledged the receipt of part consideration amount and agreed to receive balance sale consideration amount at the time of execution of the sale deed in respect of suit schedule property. However, on the request of the agents of defendant No.1, plaintiff has paid further sum of Rs.3-00 lakhs by way of cash on 19.2.2005 towards additional sale consideration amount.
Accordingly, plaintiff has paid total sum of Rs.25-00 lakhs to 1st defendant and thereby leaving balance sale consideration amount of Rs.17-00 lakhs towards suit schedule property and Rs.80-00 lakhs towards the movables contained in the schedule property. The sale transaction was agreed to be completed within 4 months from the date of agreement of sale 5 OS. No.10092 of 2005 i.e., from 18.2.2005 and sale deed was to be conveyed in favour of plaintiff by the 1st defendant or on before 17.6.2005. After entering into sale agreement, the husband of plaintiff during the month of March 2005 appointed as Architect to inspect the building situated in the schedule property and obtained a quotation for alterations to be carried out on the building and simultaneously husband of the plaintiff got surveyed the ground water in the schedule property from a qualified hydro geologist and after obtaining positive report has engaged the service of M/s Kannan Borewells, a tube well drilling contractor and has got a bore-well dug in the suit schedule property entirely at the costs of the plaintiff and plaintiff has relied upon the document like quotation given by the Architect, ground water survey report and bills issued by M/s Kannan Borewells . It is further alleged by the plaintiff that after having received valuable consideration amount, the defendant No.1 neither contacted plaintiff nor supplied copies of documents of title even after expiry of 3 months and plaintiff constrained to issue legal notice dated 4.6.2005 to the agent of defendant No.1 and thereby informed them about her readiness and willingness to complete sale transaction as entered on 18.2.2005 and called upon the defendant No.1 t5o furnish documents of title in respect of suit schedule property in order to verify the same and to proceed as per the terms of the agreement. On receipt of the 6 OS. No.10092 of 2005 aforesaid notice, the GPA holder of defendant No.1 replied through their reply notice dated 14.6.2005 urging false and untenable contentions to the notice caused by the plaintiff dated 14.6.2005 . Despite having urged the contention that the alleged agreement of sale deemed to have been came to an end on 17.6.2005 though the GPA holder of the 1st defendant continued to interact with the plaintiff's husband and power of attorney holder Sri. M.R.Raghuram and with an intention of concluding the transaction handed over original documents pertaining to the original property to the plaintiff as part performance of contract and they further prayed for extension of 15 days time for the purpose of procuring certain other documents. List of documents handed over by the defendant to the plaintiff is as under and these documents are produced by the plaintiff along with plaint:-
(a) Certified copy of sale deed dated 22/11/1972 executed by M.Maranna in favour of H.T.S.Rao, in respect of Survey No.51.
(b) Certified copy of sale deed dated 8/1/1973 executed by Chikkabeeranna and others in favour of H.T.S.Rao, in respect of Survey No.51.
(c) Original sale deed dated 22/5/1973 executed by H.T.S.Rao in favour of Anuradha Nagendra in respect of Survey No.51. A sketch registered along with the said sale deed is not produced.7 OS. No.10092 of 2005
(d) General Power of attorney dated 8/4/2004, executed by Anuradha Nagendra, in favour of C.Shivaram and Mohammed Mukthar, in respect of site bearing No.65 and other properties.
(e) Index of lands issued by the Tahsildar, Bangalore north Taluk, in respect of Survey Nos.49/1 and 51.
(f) Mutation register extracts bearing M.R.No.16/75-76 and M.R.No.17/75-76, in respect of survey Nos.49/1 and 51 issued by the Village Accountant, Bagalgunte village Panchayat, Bangalore north Taluk.
(g) RTC in respect of survey No.51 for the period 1984-85, issued by the Village Accountant Bagalugunte village panchayat, Bangalore north Taluk.
(h) RTC in respect of survey No.51 for the period 2002-03 issued by the Village Accountant, Bangalore North Taluk.
(i) RTC in respect of survey No.51 for the period 2004-05 issued by the Village Account, Bangalore north Taluk.
(j) Tax paid receipt dated 7/8/1984 issued by the office of the Tahsildar, Bangalore north Taluk.
(k) Tippani copy of survey No.51, issued by the Tahsildar, Bangalore north Taluk.
(l) Akarband copy in respect of No.51, issued by the Tahsildar, Bangalore north Taluk.
(m) Endorsement dated 22/6/2005, issued by the Special Tahsildar, Bangalore north Taluk, stating that there 8 OS. No.10092 of 2005 are no tenancy applications pending in respect of survey No.51.
(n) Encumbrance certificate issued by the Sub-Registrar, Bangalore North Taluk, in S.A.No.4364/86-87 in respect of survey No.51, for the period 1/4/1972 to 14/1/1987.
(o) Encumbrance certificate issued by the Sub-Registrar, Bangalore North Taluk, in S.A.No.29410/03-04 in respect of survey No.51, for the period 01-04-1973 to 16-10-2003.
(p) Encumbrance certificate issued by the Sub-Registrar, Bangalore north Taluk, in No.9012/2005-06, in respect of site No.65 for the period 1/4/2003 to 31/3/2005
(q) Encumbrance certificate issued by the Sub-Registrar, Bangalore north Taluk, in No.25703/04-05 in respect of site No.65 for the period 1/4/2003 to 31/3/2005.
(r) Encumbrance certificate issued by the Sub-Registrar, Bangalore north Taluk, in No.7363/05-06 in respect of site No.65 for the period 1/4/2005 to 24/6/2005.
(s) Assessment extract issued by the City Municipal Council, Dasarahalli, Bangalore.
(t) Undated letter written by Smt.Anuradha Nagendra, addressed to Smt.Shanta Raghuram, stating that the GPA executed in favour of C.Shivram and Mukthar is valid and shall not be cancelled till completion of sale in favour of Smt. Shanta Raghuram.9 OS. No.10092 of 2005
And whereas as defendant No.1 agreed to hand over list of documents to her custody as disclosed from (a) to (h):-
(a) Endorsement from the Assistant Commissioner stating that there are no proceedings pending under section 79A and 79B of the Karnataka Land Reforms Act, 1961 against owners/holders of land in respect of survey Nos.49/1 & 51.
(b) RTC from 1972-73 up to date in respect of survey No.51.
(c) Encumbrance certificate in respect of survey No.51 from 16/10/2003 till date.
(d) Sketch of the property showing the boundaries in respect of lands bearing survey no.51 and 49/1 (from Govt. Approved surveyor and countersigned by the owner Smt.Anuradha Nagendra and the power of attorney holders Sri.C.Shivaram and Sri.Mohammed Mukthar.
(e) Layout plan distinctly showing site No.65 (schedule property in the agreement) and situation of the building thereon, counter signed by the owner Smt.Anuradha Nagendra and the power of attorney holders Sri.C.Shivaram and Sri.Mohammed Mukthar.
(f) Structural / civil drawings in respect of building constructed on site No.65.10 OS. No.10092 of 2005
(g) Latest tax paid receipt in respect of site No.65 and survey No.51.
(h) Original of the conversion order dated 21/11/2003, passed by the Special D.C., Bangalore.
It is further alleged by the plaintiff that the defendant had failed to obtain the document within a period of 15 days as agreed. However on 24.8.2005 the agents of the defendant No.1 called upon plaintiff's husband to arrange for payment of balance sale consideration amount and also required stamp duty and registration fee on 26.8.2005 for the purpose of execution of the sale deed and upon the assurance of 1st defendant, wherein plaintiff and her husband went to the office of Sub Registrar , Bangalore North Taluk along with required financial instruments for payment of stamp duty, registration fees and also to pay balance sale consideration amount to the 1st defendant and on reaching the concerned Sub Registrar office, the GPA holder of 1st defendant expressed their inability to furnish the documents and to get the sale deed executed /registered in favour of plaintiff and they requested some more time to fulfill their obligations in respect of handing over remaining documents to the plaintiff. Though plaintiff was ready and willing to pay balance sale consideration amount and also ready to obtain sale deed by paying by doing her contract obligations. Having realized that the attitude and conduct of the 1st 11 OS. No.10092 of 2005 defendant and her agents, who were delay in payment of statutory dues and also procuring required documents for the purpose of registration and thereby plaintiff herself along with her husband constrained to issue 2nd notice dated 2.9.2005 narrating the events and called upon the 1st defendant to complete her part performance of contract obligation, wherein 1st defendant had received notice dated 2.9.2005 and thereby deputed agents of the defendant No.1, who has caused reply notice on 16.9.2005, wherein the allegations in the reply notice are entirely vague and frivolous and while the counsel issuing reply was being instructed simultaneously, the defendant has paid up to date taxes in respect of suit schedule property for the years 2002 -2006 and also applied for and obtained certain other documents and has furnished the same to the plaintiff and list of documents photocopies of which have been furnished to the plaintiff are listed as under:-
(a) Endorsement dated 14/7/2005 from the Assistant Commissioner stating that there are No proceedings pending under section 79A and 79B of the Karnataka Land Reforms Act, 1961 against owners / holders of land in respect of survey No.51.
(b) Four tax receipts, all dated 8/9/2005, for having paid taxes for the years 2002 to 2006 in respect of the building contained in the suit schedule property along 12 OS. No.10092 of 2005 with four copies of the forms filed by the defendant in the office of the CMC Dasarahalli.
(c) RTC from 1972-73 up to 1999-2000 in respect of survey No.51.
(d) Encumbrance certificate dated 8/9/2005 in respect of site No.65, survey No.51 from 1/4/2005 to 6/9/2005.
(e) Sketch of the property showing the boundaries in respect of lands bearing survey No.51 and 49/1 signed by the owner Smt.Anuradha Nagendra.
(f) Layout plan distinctly showing site No.65 (schedule property in the agreement) and situation of the building thereon, signed by the owner Smt.Anuradha Nagendra.
(g) Structural / civil drawings in respect of building constructed on site No.65.
And after handing over these documents, 1st defendant once again resorted to the old strategy of inviting plaintiff's husband and to the plaintiff to the office of the Sub Registrar by assuring of execution of sale deed and according to the assurance of 1st defendant herself and her husband have visited the Sub Registrar office, Bangalore North Taluk on 25.8.2005, 26.8.2005, 8.9.2005, 14.9.2005 and 15.9.2005 and on 5.10.2005 along with the entire sale consideration amount as per the agreement of sale and also plaintiff is ready to bear the stamp duty and registration expenses, but 1st defendant did not ready to convey the registered sale deed 13 OS. No.10092 of 2005 though plaintiff always ready and willing to perform her part of contract and on the contrary, 1st defendant failed to perform her part of contract by not furnishing the required documents and hence, plaintiff in para No12 of her pleadings, pleaded readiness and willingness in order to obtain sale deed executed from the 1str defendant in respect of suit schedule property and it is further alleged that the plaintiff made several requests and demands to 1st defendant for execution of sale deed and 1st defendant did not come forward to execute the sale deed and thereafter plaintiff was informed by one of the real estate agent that defendant No.1 is trying to alienate the schedule property in favour of 3rd parties and defendant No.1 is not ready to execute sale deed and as such, plaintiff having heard from the real estate agent and plaintiff has no other alternative constrained to file the suit against defendants for the relief of specific performance of contract in respect of sale agreement dated 18.2.2005 and defendants making hectic efforts to enter into agreement to sell the suit schedule property in favour of 3rd parties with sole intention of causing unlawful loss to the plaintiff and hence, plaintiff has filed the suit for the relief of specific performance of contract and also plaintiff sought for the relief of permanent injunction restraining the defendants from selling the schedule property in favour of any 3rd party and hence, plaintiff has pleaded cause of action are arose to her to file the suit in para No.18 of the plaint averments and 14 OS. No.10092 of 2005 hence, plaintiff constrained to file the suit for the relief of specific performance of contract and consequent relief of permanent injunction against defendants and plaintiff filed I.A.No.3 for seeking amendment to the plaint reliefs, wherein plaintiff in her amendment application got amended the plaint prayer in case plaintiff's relief of specific performance is not granted , in such circumstances, plaintiff has prayed for awarding alternative relief of advance amount of Rs.25-00 lakhs from defendant No.1 with interest at 24% p.a from the date of execution of sale agreement till realization of the amount of earnest amount by the defendant No.1. Hence, plaintiff filed this suit for specific performance and for other consequential reliefs.
3. After institution of the suit, it appears from the suit records, wherein GPA holder of the 1st defendant had filed caveat petition before this court in C.P.No.6021/2005 and accordingly, this court ordered to issue notice of I.A.No.1 and suit summons to caveater/defendant on 21.12.2005 and order sheet dated 21.12.2005 shows that defendant called out absent, notice of I.A.No.1 and suit summons served personally and this court noted the absence of 1st defendant and placed 1st defendant as exparte and posted the matter for hearing on I.A.No.1 and thereafter subsequent purchasers of suit schedule property from 1st defendant have filed I.A.No.2 seeking to implead them as defendant No.2 and 3 in 15 OS. No.10092 of 2005 this case and accordingly, this court after hearing I.A.No.1, the said application came to be allowed on 14.11.2006 and defendant No.2 and 3 have been impleaded, who claims to be purchaser of schedule property from 1st defendant under sale deed dated 17.4.2006, wherein defendant No.2 and 3 have filed their written statement, wherein defendant No.2 has filed his written statement and defendant No.3 adopted the written statement filed by defendant No.2 by filing separate memo in this case on 13.3.2007. Defendant No.2 and 3 in their defense contended that suit brought by the plaintiff seeking for imaginary relief of specific performance of contract is not maintainable in law and plaintiff has not approached this court with clean hands and she has suppressed the material facts and as such, plaintiff is not entitled to any discretionary order of specific performance at the hands of this court and defendant No.2 and 3 have denied their knowledge about the execution of GPA in favour of plaintiff's husband and defendant No.2 and 3 have denied the plaint allegations in toto and they also denied their knowledge about the execution of sale agreement in favour of plaintiff on 18.2.2005 and also they further denied payment of Rs.22-00 lakhs as advance amount on 18.2.2005 and further advance of Rs.3-00 lakhs on 19.2.2005 and they further denied that defendant No.1 agreed to convey sale deed after receiving balance sale consideration amount of Rs.97-00 lakhs from the plaintiff on or before 17.6.2005 and defendant 16 OS. No.10092 of 2005 No.2 and 3 also denied that plaintiff's husband appointed Architect for the purpose of carrying out alteration and renovation of existing building in the schedule property and plaintiff's husband obtained ground water survey report in the schedule property and dug bore-well in the schedule property with the aid of M/s Kannan Borewells and it is specifically contended that plaintiff has not approached this court with clean hands and defendant No.2 and 3 have denied the entire plaint averments and they have also denied their knowledge regarding exchange of notices between plaintiff and defendant No.1 and defendant No.2 and 3 have denied specifically the cause of action as alleged in para No.18 of the plaint and it is specifically contended that there was no alleged agreement in existence between plaintiff and defendant No.1 and question of plaintiff and her husband waiting before Sub Registrar will not arise, wherein GPA holders Sri. Shivaram and Sri. Mohammed Mukthar were not arrayed as parties to this suit with an intention to obtain an order behind their back at the hands of this court, wherein Sri. Shivaram and Sri. Mohammed Mukthar, who are GPA holders of 1st defendant and these persons are necessary parties to this suit and as such, the suit is bad for non joinder of necessary parties. The plaintiff is not in possession of the schedule property and as such, valuation made in the plaint is not correct and court fee paid on the plaint is also insufficient. The suit filed by the plaintiff without seeking 17 OS. No.10092 of 2005 proper and appropriate releifs and without impleading necessary proper parties to this suit, wherein the suit is not maintainable. The defendant No.2 and 3 contended that they have purchased the suit schedule property for valuable consideration by clearing the sale consideration amount paid through D.Ds as per the recitals in the sale deed dated 17.4.2006 and by virtue of sale deed, they are in possession of the suit schedule property. Hence, defendant No.2 and 3 have denied the rest other allegations , which are specifically traversed herein and defendant No.2 and 3 contended that plaintiff is not entitled for any relief prayed in the suit much less the relief sought for specific performance of contract, wherein the suit is bad for non joinder and mis joinder of proper parties. Accordingly, on this defense, defendant No.2 and 3 have resisted the suit filed by the plaintiff and prays to dismiss the suit with costs.
4. Based upon these pleadings of the parties, the following issues have been framed in the above case on 8.1.2008, wherein after amendment of the pleadings, additional Issue No.1 and 2 are framed on 15.2.2010:-
1. Whether the plaintiff prove that the defendant No.1 has agreed to sell the schedule property for Rs.1,22,00,000/- and executed an agreement of sale dt: 18.2.2005 and received the advance amount of Rs.25,00,000/- on various dates?18 OS. No.10092 of 2005
2. Whether the plaintiff prove that he has been always ready and willing to perform his part of the contract?
3. Whether the suit is bad for mis-joinder and non-joinder of the necessary parties?
4. Whether the plaintiff is entitled the relief of Specific Performance of contract?
5. Whether the plaintiff is entitled the relief of Permanent Injunction as sought for?
6. What Order of Decree?
ADDITIONAL ISSUES
1. Whether the plaintiff proves that the sale deed dated 17.4.2006 executed in favour of the defendant No.2 and 3 is a sham document and it is not binding upon the plaintiff?
2. Whether the plaintiff is entitled for the alternative relief of the refund of Rs.25-00 lakhs together with interest at the rate of 24% p.a from 18.2.2005?
5. In order to prove their respective cases, the parties to the suit have adduced their respective oral and documentary evidence, wherein plaintiff initially had filed her examination- in-chief in the form of affidavit filed under Order 18 Rule 4 of CPC filed on 19.4.2006 when defendant was placed exparte and thereafter, plaintiff once again filed examination chief affidavit after defendant No.2 and 3 came on record and filed the written statement, wherein P.W.1 got examined in this case 19 OS. No.10092 of 2005 by way of affidavit evidence and in the evidence of P.W.1 document Ex.P.1 to P.6 are came to be marked and with this evidence, plaintiff/P.W.1 closed her side. The plaintiff got examined her husband, who is her GPA holder as P.W.2 in this case, who has filed affidavit evidence in this case and also deposed orally on 24.9.2011 and P.W.2 got marked documents Ex.P.7 to P.27 and also P.W.2 further examined on 23.5.2012 in chief and got marked documents Ex.P.28 to P.30 and closed side.
Thereafter, defendant No.2 is examined as D.W.1 by filing his affidavit evidence and in the evidence of D.W.1, he got marked the documents Ex.D.1 to D.14 and with this evidence, 2nd defendant closes his evidence and thereafter, defendant No.2 and 3 have examined one witness namely Sri. H.M.Ananda Reddy as D.W.2 claims to be attesting witness for the sale deed dated 17.4.2006 obtaining by defendant No.2 and 3 and defendant No.3, who is examined as D.W.3 and has got marked Ex.D.15 to D.20 in his oral evidence on 20.2.2015 and thereafter D.W.3 is cross examined by counsel for plaintiff on 11.3.2015 and with this evidence, closes his side and thereby defendant No.2 and 3 have closed their evidence by examining D.W.1 to 3 and by producing Ex.D.1 to D.20 as documentary evidence and after closure of defendants evidence this case is posted for arguments.
20 OS. No.10092 of 20056. Heard the arguments of learned counsel for the plaintiff and learned counsel appearing for defendant No.2 and 3 and perused the pleadings. The counsel for plaintiff has filed typed copies in English regarding two sale deeds marked at Ex.P.9 and P.10 along with memo filed on 6.7.2015.
In support of his case, the advocate for plaintiff has relied upon the following decisions on 11.6.2015 and 20.6.2015 :-
1. ILR 1985 Kar 1900(Syndicate Bank Vs. Amitha and others)
2. (1995) 2 SCC 31(Jugraj Singh and another Vs.Labh Singh and others)
3. (2008) 5 SCC 796 (Guruswamy Nadar Vs. P.Lakshmi Ammal (dead) through LRs and others
4. (1999) 6 SCC 337 (Syed Dastagir Vs. T.R.Gopala Krishna Setty)
5. (2000) 6 SCC 420 (Motilal Jain Vs. Ramdasi Devi and another)
6. (2000) 6 SCC 402( R.K.Mohammed Ubaidullah and another Vs. Hajee C.Abdul Wahab) In support of his case, the advocate for defendant No.2 and 3 has relied upon the following decisions:-21 OS. No.10092 of 2005
1. 2010(4) KCCR 2743( Sri. G.Raghavendra and another Vs. C.Harish and others)
2. 2005(5) K.L.J 602( Kapoor Constructions, Bangalore Vs. Leela Nagaraj and another)
3. (2011) I SCC 429( J.P.Builders and another Vs. A.Ramadas Rao and another)
4. 2007(2) K.L.J 427(D.B)Smt. Narasamma Vs. Nirannanilatha Mommen John)
5. ILR 2006 Kar 3689 ( S.Kugashankar Vs. Subhash Chand Goel and others)
6. AIR 2009 SC 2157(Azhar Sultana Vs. B.Rajamani and others)
7. AIR 2002 S.C 1279( V.Muthusami (dead) by LRs Vs. Angammal and others)
8. 2011(2) K.L.J.17(G.Raghavendra and another Vs. C.Harish and others)
9. AIR 1981 NOC 130 ( Sheo Ram Vs. Jagjiwan and others )
10. AIR 1972 All 396( Durga Prasad and another Vs. Smt. Lilawati and another)
11. AIR 1982 NOC 18 (KER) (Sanku Balakrishnan Vs. Raman Kujikrishnan and others)
7. On appreciation of oral evidence of P.W.1 and 2 and that of D.W.1 to 3 and on appreciation of documentary evidence relied by the plaintiff marked at Ex.P.1 to P.30 and that of documentary evidence marked for the defendants from 22 OS. No.10092 of 2005 Ex.D.1 to Ex.D. 21 and considering the citations relied on both sides and after considering the arguments contention canvassed by the learned counsel representing the parties, I answer the above issues are as follows:-
Issue No.1: In affirmative;
Issue No.2: In negative;
Issue No.3: In affirmative;
Issue No.4 and 5: In negative;
Addl.Issue No.1: In negative;
Addl.Issue No.2: In negative;
Issue No.6: The suit of the plaintiff filed
for the relief of specific
performance of contract and for
alternative relief of refund of
earnest money deserves to be
dismissed for the following
reasons:-
REASONS
8. Issue No.1 and 2 : It is the specific case of the
plaintiff that defendant No.1 being the absolute owner having possessory title over the suit schedule property, wherein the subject matter of the suit is pertaining to property bearing site No.65 formed in Sy.No.49/1 and 51 of Bagalgunte village, Yeswanthapura Hobli, Bangalore North Taluk as the said property is now coming under the jurisdiction of CMC, Dasarahalli and now is vested within the jurisdiction of 23 OS. No.10092 of 2005 BBMP , wherein this property measuring east-west 140 ft., north-south 133 ft., in all measuring 18,620 square feet and in this property there existed old constructed house measuring 6000 square feet and defendant No.1 had purchased the suit schedule property under two different sale deeds and as such, 1st defendant was having clear and marketable title to alienate the suit schedule property and 1st defendant had agreed to sell the suit schedule property for total sale consideration amount of Rs.1,22,00,000/- in favour of plaintiff and after sale negotiations, agreement of sale came to be executed on 18.2.2005 between plaintiff and 1st defendant and on that day, the plaintiff has paid advance/earnest amount of Rs.22-00 lakhs in the presence of attesting witnesses to 1st defendant and 1st defendant executed sale agreement agreeing to convey the sale deed within 4 months from the date of execution of sale agreement i.e., from 18.2.2005 and thereafter on demand by the 1st defendant, plaintiff paid additional advance amount of Rs.3- 00 lakhs on 19.2.2005 and defendant assured of execution of sale deed on or before 17.2.2005 by handing over/producing the other necessary documents required for registration of sale deed and she agreed to receive the balance sale consideration amount of Rs.97-00 lakhs at the time of execution of sale deed from the plaintiff, but defendant No.1 did not hand over the other required documents to the plaintiff and also defendant No.1 replied false and evasive 24 OS. No.10092 of 2005 reply to the notice caused by the plaintiff dated 14.6.2005 and on 2.9.2005 and hence, plaintiff has filed the suit against defendants for specific performance of contract relying upon sale agreement dated 18.2.2005. Initially, only one defendant Smt.Anuradha Nagendra was arrayed as defendant in this case and she remained absent though she served with summons and accordingly, defendant was placed exparte and thereafter defendant No.2 and 3 have filed impleading application and I.A.No.2 came to be allowed, wherein defendant No.2 and 3 are the purchasers of schedule property from the agents of original defendant through her GPA holders namely Sri.C.Shivaram and Sri.Mohammed Mukthar , who are GPA holders under registered GPA dated 8.4.2004 executed by original defendant in favour of Sri.C.Shivaram and Sri.Mohammed Mukthar in respect of suit schedule properties and other sites formed in Sy.No.49/1 and 51 of Bagalgunte village and accordingly, defendant No.2 and 3 claims to be the purchasers of schedule property under sale deed dated 17.4.2006 from GPA holders original defendant and defendant No.2 and 3 have denied their knowledge about the sale agreement dated 18.2.2005 executed in between plaintiff and defendant No.1 and defendant No.2 and 3 have contended that due to breach of contract by plaintiff, the sale transaction was rescinded and cancelled and defendant No.1 had issued termination notice to plaintiff and thereafter 25 OS. No.10092 of 2005 after verifying the clear title of defendant No.1, they have purchased the schedule property under sale deed dated 17.4.2006 and defendant No.2 and 3 have denied readiness and willingness of plaintiff as required under Sec. 16(c) of Specific Relief Act for obtaining of specific performance relief and defendant No.2 and 3 have claimed that they are bonafide purchasers under sale deed dated 17.4.2006 without knowledge of alleged agreement of sale. Hence, defendant No.2 and 3 resisted the suit by filing the written statement and with this rival contention, the parties to the suit have adduced their respective oral and documentary evidence, wherein plaintiff herself has given evidence as she is examined as P.W.1 through her affidavit evidence filed under Order 18 Rule 4 of CPC and P.W.1 further examined and got marked Ex.P.1 to P.7 in her oral evidence on 24.8.2010 and further P.W.1 also examined on 13.3.2011.
Hence, P.W.1 relying upon her oral evidence and documents Ex.P.1 to P.7 marked through her and prays to decree the suit as prayed for.
9. The counsel appearing for the defendants cross examined P.W.1 on 23.6.2011, wherein P.W.1 admits that she has entered into agreement of sale with Sri.C.Shivaram and Sri.Mohammed Mukthar and herself and her husband together have instructed her counsel to file the suit and P.W.1 stated that prior to filing of the suit, she has issued 26 OS. No.10092 of 2005 legal notice to the agents of defendant No.1 namely Sri.C.Shivaram and Sri.Mohammed Mukthar and they have replied her notice and again after receipt of reply at Ex.P.5, she has caused another notice to the GPA holders of defendant No.1, but she do not remember whether again notice was sent to the agents of 1st defendant and P.W.1 admits that on 2.9.2005 she has issued 2nd notice to GPA holders namely Sri.C.Shivaram and Sri.Mohammed Mukthar and P.W.1 further stated that she has paid sale consideration amount of Rs. 22-00 lakhs and further amount if advance amount of Rs.3-00 lakhs paid to the GPA holders of 1st defendant namely Sri.C.Shivaram and Sri.Mohammed Mukthar and P.W.1 admits that her husband had witnessed/perused the original documents of title in respect of schedule property, but she has not verified the title documents in respect of schedule site and P.W.1 stated that the original owner of property namely Smt.Anuradha Nagendra had written letter about her title in respect of suit schedule property, but P.W.1 do not able to give the date, month and years of the said letter written by Smt.Anuradha Nagendra and even P.W.1 is unable to state whether the said letter was written by Smt.Anuradha Nagendra since now many days earlier to the execution of sale agreement.
10. P.W.1 further cross-examined by counsel for defendant No.2 and 3, wherein P.W.1 denied her knowledge 27 OS. No.10092 of 2005 where 1st defendant was residing at the time of execution of Ex.P.3 and P.W.1 do not remember about the documents given by 1st defendant at the time of execution of Ex.P.3 and P.W.1 admits that she has entered into agreement of sale with Sri.C.Shivaram and Sri.Mohammed Mukthar and she do not know in which survey number, property No.65 existed and she do not know who formed layout in respect of schedule property and even P.W.1 do not know whether the said layout has been approved or not and she do not know how many sites have been formed in Sy.No.49/1 and 51 of Bagalgunte village and P.W.1 is not able to spell the total extent of Sy.No.49/1 and Sy.No.51 of Bagalgunte village and also boundaries of all these two lands and P.W.1 stated that she has requested the agents of 1st defendant namely Sri.C.Shivaram and Sri.Mohammed Mukthar requesting them to execute sale deed in the 1st week of 2005 by sending notice to them, but P.W.1 admits that she has not issued any legal notice to 1st defendant calling upon her to execute sale deed and P.W.1 admits that she has not requested the 1st defendant at any point of time requesting to execute sale deed and P.W.1 admits that at the time of execution of Ex.P.3, Sri.C.Shivaram and Sri.Mohammed Mukthar and Muniraju and one Harikumar were present and she admits that in the schedule property there exists a constructed house measuring 6000 square feet and P.W.1 stated that at the time of execution of sale agreement, possession of schedule 28 OS. No.10092 of 2005 property was not handed over to her and she admits that she did not assured to repair the existing building in the schedule property nor to construct any compound wall . She admits that one Harikumar along with herself had obtained sale agreement and P.W.1 admits that she has not paid any amount in favour of Sri.C.Shivaram and Sri.Mohammed Mukthar on the date of execution of sale agreement towards sale consideration amount and P.W.1 admits that the agents of defendant No.1 namely Sri.C.Shivaram and Sri.Mohammed Mukthar did not asked any amount from the plaintiff towards sale consideration amount and P.W.1 denied her knowledge whether the GPA holders of 1st defendant did any caveat petition against her in respect of schedule property and P.W.1 denied that she has no interest to purchase the schedule property, she did not enquired and requested the agents of defendant No.1 to execute sale deed and P.W.1 stated that 1st defendant had not sold the schedule property to any other 3rd parties and P.W.1 denied that she has filed false suit against defendant No.2 and 3 in order to harass her and P.W.1 denied that she is not entitled for any relief as prayed in the case and P.W.1 denied her knowledge that the 1st defendant on the date of execution of sale agreement till as on today, she was not residing in India and she was settled at America.
29 OS. No.10092 of 200511. The plaintiff got examined her husband as power of attorney holder in this case as P.W.2, wherein the plaintiff's husband has deposed his evidence through affidavit evidence filed under Order 18 Rule 4 of CPC and P.W.2 stated that his wife original plaintiff had executed GPA dated 13.6.2005 in his favour to depose representing the plaintiff herein and on perusal of affidavit evidence of P.W.2, wherein his evidence is also as similar to that of P.W.1 and P.W.2 stated that P.W.1 had obtained sale agreement dated 18.2.2005 and in response to this sale agreement, 1st defendant had agreed to execute sale deed by producing all original documents in respect of schedule property within 4 months and plaintiff had agreed to pay balance sale consideration amount of Rs.97-00 lakhs to 1st defendant after she hand over all original title deeds and also she agreed to pay up to date taxes to the property to be conveyed under sale deed. Hence, P.W.2 deposed that though plaintiff waited for 3 months from 18.2.2005, but defendant No.1 did not come forward to execute sale deed and accordingly, plaintiff constrained to issue reply notice dated 4.6.2005 to defendant No.1, but 1st defendant has falsely replied through her reply notice dated 14.6.2005 and P.W.2 stated that on 24.8.2006, the agents of defendant No.1 called upon plaintiff to arrange for payment of balance amount and also get ready to obtain sale deed from defendant No.1 and accordingly, the plaintiff and her husband approached the Sub Registrar office on 30 OS. No.10092 of 2005 26.8.2005 along with the instrument of finance to be paid towards balance sale consideration amount in order to obtain sale deed from defendant No.1 at the cost of plaintiff, but defendant No.1 did not execute sale deed on 26.8.2005 though plaintiff and her husband are present in the office of Sub Registrar , Bangalore North Taluk and they were also ready with required financial instrument for payment of stamp duty and registration fees and also towards balance sale consideration amount and P.W.2 also deposed that plaintiff again caused legal notice from 2.9.2005 and it is replied by defendant No.1 on 16.9.2005 and defendant No.1 has given false and evasive reply and thereafter, plaintiff again constrained to issue legal notice on 2.9.2005 and it is replied by the defendant No.1 on 16.9.2005 and defendant No.1 has given false and evasive reply and hence, P.W.2 in his affidavit evidence deposed that his wife, P.W.1 was and is ready and willing to perform her part of contract and also P.W.1 along with him were present in the office of Sub Registrar , Bagalgunte village on 25.8.2005 , 26.6.2005, 8.9.2005, 14.9.2005 and 15.9.2005 and lastly on 5.10.2005 , but 1st defendant failed to execute sale deed and on the other hand , she alienated the schedule property in favour of defendant No.2 and 3 during pendency of the suit, wherein defendant No.2 and 3 have purchased schedule property from defendant No.1 under sale deed dated 17.4.2006 during pendency of the suit in gross violation of interim order 31 OS. No.10092 of 2005 passed by this court and thereby the plaintiff has sought for injunction order and as such, the sale deed relied by defendant No.2 and 3 is not binding on plaintiff and if any right accrued to defendant No.2 and 3 under sale deed dated 17.3.2006, it is subject to rights of the plaintiff. Hence, P.W.2 has prayed for annulling the sale deed of defendant No.2 and 3 dated 17.4.2006 and further he sought for direction to defendant No.2 and 3 to join with 1st defendant in execution of the sale deed in favour of plaintiff. Hence, on perusal of evidence of P.W.2, wherein his evidence appears to be corroborative evidence in support of pleadings filed by his wife, original plaintiff in this case and P.W.2 got marked documents Ex.P.7 to P.27 and again P.W.2 is further examined on 23.5.2012 and Ex.P.28 to P.30 are marked.
12. The counsel appearing for defendant No.2 and 3 cross examined P.W.2 on 27.8.2013,wherein P.W.2 denied that he has instructed his counsel to draft the plaint and P.W.2 admits that himself and his wife both together have furnished instructions to their counsel to frame the suit and P.W.2 further admits that his wife plaintiff had deposed in this suit and witness further stated that when plaintiff was examined in the suit, he was setting out side the court hall and P.W.2 stated that they have paid Rs.22-00 lakhs as earnest amount to defendant No.1 on 18.2.2005 and in this regard, he has deposed in his chief examination affidavit at 32 OS. No.10092 of 2005 para No.3 and he denied that defendant No.1 was not residing in the address given in the cause title of the plaint when this suit was filed in the year 2005 and he denied that defendant No.1 went to America in the year 2003 in the month of January and settled therein and P.W.2 admits that they have entered into agreement of sale and he met 1st defendant in the address shown in the plaint for one or two times and P.W.2 do not know about the residential address, where 1st defendant was residing when plaintiff has filed the suit. P.W.2 admits that he has not signed the suit agreement as attesting witness and he further denied that he do not have any idea regarding address of defendant No.1, where she was actually residing when the suit was filed and P.W.2 denied that he has no idea or information about the suit transaction and he is deposing false evidence at the instance of plaintiff and P.W.2 admits that he has not produced any documents to show that he was present before the Sub Registrar on 26.8.2005 and P.W.2 admits that he came to know about the subsequent purchase made by defendant No.2 and 3 after they impleaded in the suit in respect of schedule property and P.W.2 stated that he do not know the residential address of 1st defendant when she is residing presently and he do not know whether defendant No.2 and 3 are in possession of suit schedule property after they purchased under sale deed and he admits that the land survey number is measuring 3 acres 26 guntas in extent 33 OS. No.10092 of 2005 and it is admitted by P.W.2 that one Sri.C.Shivaram and Sri.Mohammed Mukthar had developed Sy.No.51 and formed residential sites in Sy.No.49 and 51 of Bagalgunte village and P.W.2 denied that defendant No.2 and 3 have purchased the schedule property under sale deed for valuable consideration and they are in possession of schedule property and P.W.2 do not know in whose possession the schedule property is lying at present and he further denied that plaintiff and himself have filed false suit against defendant No.2 and 3 in order to harass these defendants and he further denied that plaintiff has no right, title and interest over the suit schedule property and he is deposing false evidence just to favour to the plaintiff herein.
13. Defendant No.2 is examined as D.W.1 in order to lead rebuttal evidence , wherein D.W.1 has filed his examination-in-chief by way of affidavit under Order 18 Rule 4 of CPC and in the evidence of D.W.1, documents Ex.D.1 to D.14 are came to be marked and on perusal of chief examination affidavit of D.W.1, wherein he has denied about the knowledge of suit agreement existed between plaintiff and defendant No.1 and on the contrary, D.W.1 stated that he has purchased the suit schedule property under sale deed dated 17.4.2006 for valuable consideration and hence, D.W.1 in his evidence deposed by reiterating the facts of defense set up in this case and he got marked Ex.D.1 to D.14 34 OS. No.10092 of 2005 and D.W.1 relying upon his oral evidence coupled with Ex.D.1 to D.14, pray for dismissal of the suit.
14. The counsel appearing for the plaintiff cross examined D.W.1, wherein D.W.1 admits that he is not practicing law by personally attending the courts as an advocate, but D.W.1 stated that he is doing law profession in preparation of documents and he admits that he himself and defendant No.3 are friends to each other and he is doing real estate business and prior to execution of sale deed by him in favour of defendant No.3, himself and defendant No.3 have entered into contract with others by execution of sale agreement and sold away properties. D.W.1 denied that suit schedule property site No.65 formed in Sy.No.49/1 and 51 together. However, according to witness, site No.65 comes within the limits of Sy.No.51 of Bagalgunte village, which measures 3 acres 24 ft and he admits that 1st defendant had purchased these two Survey numbers 49/1 and 51 from its previous owner by name Sri. H.T.S.Rao and D.W.1 do not remember the date of sale deed held by defendant No.1 and he admits that prior to his purchase, he has verified the documents in respect of property No.65 like sale deed of defendant No.1, RTC extracts, mutation entries in the name of defendant No.1, conversion order in the name of 1st defendant and approved layout plan regarding formation of sites. Defendant No.1 had not given original sale deed of title 35 OS. No.10092 of 2005 deed and as such, he has obtained certified copy of the sale deed of defendant No.1 and defendant No.1 told him that he is having custody of original sale deed with him and he denied his knowledge that plaintiff has already produced original sale deed given by 1st defendant in the suit and D.W.2 stated that he came to know about the schedule property offered for sale by the local people and thereby he approached the 1st defendant and her agents namely Sri.C.Shivaram and Sri.Mohammed Mukthar for purchase of schedule site and the vendors of schedule sites did not informed him about the existence of suit agreement of sale in favour of plaintiff at that time and he drafted the sale deed Ex.D.1 and the said sale deed was confronted to advocate Sri. V.B.Shivakumar, who had signed the sale deed, but D.W.1 stated that he has not obtained any legal opinion from any consulting lawyer from or from any practicing lawyer prior to purchase of his site and D.W.1 admits that he has not issued any paper publication by causing public notice in respect of his purchase of suit schedule property.
15. D.W.1 further cross-examined on 15.7.2014, wherein he admits that he has not seen 1st defendant at any point of time nor prior to purchase of his property and no sale agreement came to be executed between himself and 1st defendant and whereas he stated that he met GPA holders of 1st defendant in respect of untended purchase of schedule 36 OS. No.10092 of 2005 property and from that day onwards after two months of his visit, the GPA holders/agents of 1st defendant have executed sale deed to him and he has not seen the original GPA executed by defendant No.1 in favour of her agents and according to witness, he has obtained certified copy of GPA from the office of Sub Registrar and he denied that he has not seen the certified copy of GPA on the date of registration of sale deed Ex.D.1 and D.W.1 admits that he has acquainted with property situated adjoining near the schedule property and he denied that he knew plaintiff and her husband and he is aware of the fact about drilling of bore-well by the plaintiff in the schedule site and he denied that he is having knowledge about sale agreement existed in favour of plaintiff executed by 1st defendant and he did not enquired in order to ascertain regarding sale agreement by approaching court of law to ascertain pending litigation in respect of schedule property and D.W.1 stated that he has paid Rs.40-00 lakhs towards his share in the sale transaction in respect of Ex.P.1 and he has paid the said amount on 17.4.2006 at the time of execution of Ex.D.1 and D.W.1 further stated that he is doing agricultural work in his village and also he is doing real estate business and also doing drafting of documents and from all these sources, he had collected the amount required for purchase of schedule property and he denied that there is no passing of consideration as mentioned under Ex.D.1 and he further denied that vendor did not handed over 37 OS. No.10092 of 2005 possession of the schedule property on the day of registration of Ex.D.1 and he further denied that knowingly they have purchased the schedule property and also they knew about the pendency of litigations and he further admits that as an advocate, he should be aware and more cautious while purchasing the immovable property through GPA holders. However D.W.1 voluntarily stated that at the time of his purchase of schedule property and on his enquiry, he noticed that the property to be purchased is free from any hurdles and he denied that without verifying the documents, he has purchased the schedule property in order to defeat the rights of the plaintiff.
16. D.W.2 witness for defendant No.2 and 3 has filed his affidavit evidence stating that he is witness for the sale deed executed in favour of defendant No.2 and 3 and further D.W.2 stated that he had entered into agreement of sale with GPA holders of 1st defendant prior to sale in favour of defendant No.2 and 3 in respect of suit schedule property since he could not mobilise the balance sale consideration amount. The contract entered into agreement was stands cancelled and since it was insisted by purchasers that he should depose in this case and accordingly, he has attended and deposing in this case and D.W.2 stated that on the date of sale deed in favour of defendant No.2 and 3 agreement executed in his favour was destroyed and D.W.2 stated that 38 OS. No.10092 of 2005 layout formed in Sy.No. 49 and 51 by the said GPA holders of 1st defendant and suit property exists in Sy.No.51 of Bagalgunte village, Yeswanthapura Hobli, Bangalore North Taluk and the advance amount given by him at the time of agreement of sale was cleared to him and there was no subsisting right of him in the suit schedule property.
17. The counsel for the plaintiff cross examined D.W.2, wherein he admits that he is doing real estate business and residing in House No.39, HMR Layout,Poornapura, Gokula, Bangalore-54 since last 4 years and he admits that he has entered into agreement of sale on 18.1.2006 with agents of 1st defendant agreeing to purchase the property for sale consideration amount of Rs.1,10,00,000/- and he has paid advance amount of Rs.25-00 lakhs through cheque transaction and D.W.2 stated that he can produce statement of account extract for the year 2006 to show that the said transaction and he was no documents came to be executed regarding cancellation of agreement of sale dated 18.1.2006. Witness volunteers that agreement of sale dated 18.1.2006 was torned out at the time of execution of sale deed and he get back amount of Rs.25-00 lakhs on the day of execution of Ex.D.1 by way of cash and also by way of cheque transaction and he do not remember how much amount received back in cash and for how much amount cheque was given and D.W.2 admits that on 17.4.2006, he was present in the office of Sub 39 OS. No.10092 of 2005 Registrar and on that day, GPA holders of defendant No.1 had assured him of returning the earnest amount paid by him and he went to Sub Registrar office on 17.4.2006 and he knew defendant No.2 and 3 on 17.4.2006 and he also knew P.A.Holders since about 4 years preceding the execution of sale deed and he denied that he do not know anything about recitals of Ex.D.1 and he denied that he did not entered into any contract under sale agreement dated 18.1.2006 with GPA holders of defendant No.1 and D.W.2 denied that he is deposing false evidence by filing false affidavit as defendant No2. instructed him to give evidence as he being the witness for the sale deed Ex.D.1.
18. Defendant No.3 is examined as D.W.3, wherein this witness filed his examination-in-chief in lieu of affidavit under Order 18 Rule 4 of CPC, wherein on perusal of the evidence of D.W.3, wherein he deposed by giving verbatim evidence as per the defense stand taken by defendant No.2 and 3 in this case and in the evidence of D.W.3, documents Ex.D.1 to D.20 are came to be marked. Hence, D.W.3 relying upon his evidence and coupled with documents Ex.D.15 to D.20, wherein D.W.3 stated he owns property at Solur and he has sold the said property and received sale proceeds and he invested the said amount in purchasing the schedule property from agents of 1st defendant and D.W.3 also stated that the said property has been acquired by KIADB and he 40 OS. No.10092 of 2005 has produced documents in order to show that there is acquisition of property in Sy.No.174 and 175 of Solur village and he relied upon Ex.D.16 to Ex.D.19. Hence, D.W.3 pray for dismissal of suit filed by the plaintiff.
19. The learned counsel for plaintiff cross examined D.W.3, wherein he admits that he had partially understood the cross-examination of D.W.1 made in this suit and D.W.3 admits that he doing real estate business and he maintaining poultry form and also running fair price shop and he further stated that he has invested 60% of sale consideration amount for purchasing the schedule property and he admits that property covered under Ex.D.15 is joint family property and he denied that sale proceeds was apportioned amongst all the sharers and he admits that Sy.No.174 and 175 of Solur village of Magadi Taluk were under the acquisition of KIADB and acquiring authority have disbursed the compensation amount in favour of his father and D.W.3 stated that he came to know about the sale of schedule property in the year 2006 and he has paid sale consideration amount by way of D.D and by way of cash payment prior to registration of the sale deed, he has with draw some amount from his bank account, but he do not remember specific date of withdrawal of amount and D.W.3 admits that he has verified documents of title prior to his purchase about the suit schedule property, wherein defendants have given xerox 41 OS. No.10092 of 2005 copies of documents, but they did not handed over original documents for his verification and he admits that 1st defendant had executed GPA in favour of her agents namely Sri.C.Shivaram and Sri.Mohammed Mukthar for sale of schedule property and he admits that he has verified the said GPA executed by 1st defendant in the office of Sub Registrar and he do not remember whether he has verified original GPA executed by 1st defendant and D.W.3 further stated that himself, D.W.1 and vendor namely agents of 1st defendant had given information to prepare Ex.D.1 sale deed and he denied that 1st defendant had executed sale agreement in favour of plaintiff prior to alienation of schedule property under Ex.D.1 and he admits that he had not obtained any legal opinion in writing prior to purchase of schedule property and he also admits that he has not issued any public notice prior to execution of Ex.D.1 and he denied that he had knowledge about the sale agreement existed between plaintiff and defendant No.1 and he denied further that plaintiff and her followers have interfered in their possession on 8.7.2006 while visiting the schedule property and D.W.3 denied that he is deposing false evidence in respect of purchasing schedule property as bonafide purchaser and he has deposed false evidence in his chief examination affidavit in order to cause loss to the plaintiff.
42 OS. No.10092 of 200520. On appreciation of the oral and documentary evidence placed on record by both the parties, wherein it is admitted fact that 1st defendant is the absolute owner in possession of suit schedule property bearing No.65 formed out of Sy.No.49/1 and Sy.No.51 Situated at Bagalgunte village, Yeswanthapura Hobli, Bangalore North Taluk, wherein she has purchased Sy.No.49/1 and Sy.No.51 under two sale deeds dated 23.5.1973 and dated 25.3.1973, wherein the vendor /1st defendant had obtained conversion order in respect of 3 acres 28 guntas of land as per the conversion order dated 21.11.2003 and it is admitted fact proved by documentary evidence relied by the plaintiff herself marked t Ex.P.2, wherein the 1st defendant has appointed her agents namely Sri.C.Shivaram and Sri.Mohammed Mukthar by execution of GPA dated 8.4.2004 and already the 1st defendant had confirmed the execution of the said GPA in favour of her attorney holder namely Sri.C.Shivaram and Sri.Mohammed Mukthar informing the plaintiff as per Ex.P.2 and 1st defendant also confirmed that she has not revoked the said GPA executed by her in favour of her power of attorney holders when this Ex.P.2 was returned to plaintiff and as such, it is a fact proved on record that the plaintiff was well within the knowledge that 1st defendant by execution of registered GPA dated 8.4.2004 had transferred her rights in the schedule property to deal sale transaction through her agents appointed under this registered GPA dated 8.4.2004 43 OS. No.10092 of 2005 and when plaintiff has relied upon Ex.P.2 the letter given by 1st defendant and as such, it is deemed that plaintiff must have constructive knowledge of existence of registered GPA executed by 1st defendant in favour of her P.A.Holders namely Sri.C.Shivaram and Sri.Mohammed Mukthar and plaintiff also took custody of original GPA executed by 1st defendant in her custody when 1st defendant has tendered all original title deeds after execution of sale agreement on 18.2.2005. Hence, there is no dispute regarding execution of sale agreement dated 18.2.2005 by 1st defendant in favour of plaintiff agreeing to convey the schedule property in favour of plaintiff on 18.2.2005 for agreed sale consideration amount of Rs.1,22,00,000/-, wherein defendant No.1 remained exparte in this suit and on perusal of all the notices exchanged between plaintiff and the GPA holders of defendant No.1, wherein plaintiff relied upon Ex.P.4, office copy of legal notice dated 4.6.2005 and defendant No.1's GPA holders have replied this notice as per Ex.P.5 on 14.6.2005 and under Ex.P.5, the GPA holders of defendant No.1 called upon the plaintiff to perform her part of contract by paying balance sale consideration amount of Rs.97-00 lakhs and to get execute sale deed within span of 4 months time stipulated under Ex.P.1 i.e., within 17.6.2005,, but it appears from the documents relied by the plaintiff herein, wherein plaintiff again caused 2nd notice at Ex.P.7 dated 2.9.2005 addressed to the GPA holders of defendant No.1, wherein the GPA 44 OS. No.10092 of 2005 holders of 1st defendant have replied the notice Ex.P.7 by the reply notice dated 16.9.2005. Hence, it appears that the plaintiff without performing her part of the contract in respect of Ex.P.3 and plaintiff did not paying balance sale consideration amount of Rs.97-00 lakhs due to the defendants' GPA holders , wherein plaintiff has indulged in issuance of legal notices before the expiration of 4 months time fixed under contract under Ex.P.3 , wherein plaintiff has got issued legal notice on 4.6.2005 and it appears that plaintiff did not made the GPA holders of 1st defendant as party to this suit and on perusal of Ex.P.3 relied by the plaintiff in this suit for specific performance, wherein this sale agreement dated 18.2.2005, is executed by the agents of 1st defendant namely Sri.C.Shivaram and Sri.Mohammed Mukthar representing 1st defendant on the strength of registered GPA executed in their favour dated 8.4.2004 and as such, the plaintiff did not arrayed the GPA holders /executants of this sale agreement namely Sri.C.Shivaram and Sri.Mohammed Mukthar , who necessary and proper parties to be impleaded in this case representing 1st defendant and wherein the terms of the contract as shown in Ex.P.1 shows that the time schedule of 4 months agreed under Ex.P.1 for completion of the sale transaction is agreed with the understanding and GPA holders of 1st defendant agreed to convey the schedule property for their legal necessity and urgency in alienation of the property and 45 OS. No.10092 of 2005 hence, the time agreed under Ex.P.3 was agreed with understanding and with full knowledge of plaintiff and executants of Ex.P.1 i.e., GPA holders of 1st defendant on 18.2.2005 and as such, it is a fact that GPA holders of 1st defendant had already handed over all the original title deeds to the custody of plaintiff when Ex.P.3 was came to be executed and there was no impediment for the plaintiff to obtain sale deed got executed through GPA holders of 1st defendant within 4 months time from the date of execution of Ex.P.3 i.e., within 17.6.2005, but it appears from the evidence on record, wherein P.W.1 admits herself that she has not issued any demand notice to defendant No.1 and also she never met defendant No.1 in demanding execution of the sale deed and on the contrary, the terms of the contract entered into under Ex.P.3 clearly reveals that time was the essence of contract and also the vendor of the schedule property had retained the right of forfeiting the earnest amount paid under the suit agreement as per Clause No.10 of the agreement Ex.P.3 in the even of purchaser failed to purchase the schedule property within the stipulated period as agreed under Ex.P.1 and the terms of the contract entered under Ex.P.3 shall binds the parties to the agreement of sale and hence, from appreciation of the evidence placed on record, wherein the terms of Ex.P.3 further shows that in case of any breach on the part of the vendor in performing the terms of the contract and if purchaser is ready to perform her part of 46 OS. No.10092 of 2005 the contract, then the vendor is liable to pay double amount paid under this agreement as liquidated damages to the purchaser in lump-sum within one month from the date of expiry of this agreement and Clause No.11 further recited that the purchaser has to deposit balance sale consideration amount in the name of the vendor and got the sale deed in her name and her nominee from the vendor through process of law, but in this case though plaintiff has filed this suit in the year 2005, but plaintiff has not made any attempt to deposit the balance sale consideration amount of Rs.97-00 lakhs to be paid to the vendor, defendant No.1 or through her GPA holders under the registered GPA executed by her dated 8.4.2004. Hence, in the suit for specific performance of contract, wherein if time stipulation is agreed by the parties in the agreement of sale, then it binds the parties to perform their part of obligation within the stipulated time and time fixed under the contract becomes time is the essence of the contract and as per Sec.55 of Contract Act, wherein in this particular case, the time stipulation of 4 months fixed under Ex.P.3 is time was the essence of contract, wherein there was no impediment on the part of defendant No.1 or her GPA holders to postpone the execution of sale deed to be executed in favour of plaintiff, but on the contrary, plaintiff, who was not ready to perform her part of contract has issued legal notice on 4.6.2005 to the GPA holders of the 1st defendant and again caused 2nd notice on 2.9.2005 and even though 47 OS. No.10092 of 2005 defendant No.1's GPA holders have given opportunity to the plaintiff to obtain sale deed by paying balance sale consideration amount within 17.6.2005, but plaintiff did not send the balance sale consideration amount by obtaining either D.D or any other bankers cheque or any other negotiable instrument sent along with 2nd notice by the plaintiff on 2.9.2005 along with Ex.P.7. No such attempt is made by the plaintiff to show that she was all the while ready and willing to perform her part of contract since the date of agreement of sale dated 18.2.2005 till filing of the suit, wherein in suit for specific performance of contract as per the ratio laid down by the Hon'ble Apex Court in respect of Sec.16(c) of Specific Relief Act, wherein the agreement holders must prove continuous readiness and willingness in order to comply the ingredients of Sec.16(c) of Specific Relief Act from the date of execution of sale agreement till the date of decree to be passed in a suit for specific performance, but in this case, plaintiff has not produced any documents showing her financial status by producing bank documents or statement of account in respect of herself and her husband to show that plaintiff had kept amount ready to pay amount towards balance sale consideration amount within the time stipulation of 4 months and as such, plaintiff ha snot produced any such documentary evidence except she pleaded regarding readiness and willingness and deposed the said fact in her oral evidence and husband of plaintiff also 48 OS. No.10092 of 2005 deposed plaintiff's readiness and willingness in his oral evidence and on the contrary, the document Ex.P.3 is executed by the GPA holders of defendant No.1 in favour of plaintiff as can be seen from Ex.P.3, wherein the GPA holders representing defendant No.1 have executed this sale agreement in favour of plaintiff on 18.2.2005. Hence, the plaintiff ought to have impleaded the GPA holders of 1st defendant, who are necessary and proper party to represent defendant No.1 since 1st defendant had transferred her rights in the schedule property by execution of registered GPA conveying the absolute right in respect of schedule property in favour of her appointed agents Sri.C.Shivaram and Sri.Mohammed Mukthar, but whereas the plaintiff has arrayed 1st defendant, who is not necessary party in this case and even it appears that caveat petition has been filed by the GPA holders against plaintiff in respect of suit schedule property as per the caveat petition bearing C.P.No.6021/2005 though counsel for the plaintiff relied upon various citations in support of readiness and willingness under Sec. 16(c) of Specific Relief Act, but from appreciation of the evidence of P.W.1 and 2 and documentary evidence and cross-examination admissions elicited by defendants through P.W.1 and 2, wherein it appears that plaintiff/ P.W.1 and 2 have failed to prove their readiness and willingness in performing their part of contract, wherein time was the essence of contract and plaintiffs have not obtained 49 OS. No.10092 of 2005 sale deed got executed either in favour of plaintiff or her nominee within span of 4 months though 1st defendant through her GPA holders had handed over all original documents to the custody of plaintiff, wherein plaintiff herself has produced all the original title deeds which are handed over to her along with her suit filed in this court. But on the contrary, plaintiff did not paid balance sale consideration amount within a span of 4 months i.e., on or before 17.6.2005 and thereafter, the 1st defendant through her GPA holders constrained to answer the legal notices issued by the plaintiff on 4.6.2005 and on 2.9.2005, wherein 1st defendant and her appointed agents have informed the plaintiff of cancellation of agreement Ex.P.3 and to forfeit the advance amount paid by the plaintiff under the contract so far, but still inspite of the receipt of reply notice of defendant No.1's P.A.Holders, wherein plaintiff had not shown her seriousness in getting the sale deed executed by paying balance sale consideration amount within 17.6.2005 and as such, plaintiff has not produced any iota of evidence to show that she had kept amount ready with her to pay towards balance sale consideration amount when she received reply notice issued by defendant No.1's GPA holders on1 6.9.2005 of plaintiff had kept ready amount of Rs.97-00 lakhs to be paid to 1st defendant or to her GPA holders to conclude the transaction, but plaintiff has not produced any piece of evidence in order to prove her financial capacity to pay the balance sale 50 OS. No.10092 of 2005 consideration amount and as such, plaintiff failed to perform her part of contract and from the oral and documentary evidence it is apparent on record that the plaintiff has committed breach of contract terms and she has not acted diligently in performing her part of contract within span of 4 months fixed under Ex.P.3 and as such, there is breach of contract on the part of plaintiff and on the contrary, defendant No.1 was having perfect title to convey the schedule property and she has already executed registered GPA transferring her rights in the schedule property in favour of her appointed agents Sri.C.Shivaram and Sri.Mohammed Mukthar under registered GPA dated 8.4.2004 and defendant No.1 had already handed over all the necessary title deeds and also property was converted into non agricultural tenure and defendant No.1 was having no impediment to execute sale deed either by herself or through her appointed GPA holders, wherein the contract entered into under Ex.P.3 for Rs.1,22,00,000/- and plaintiff has paid Rs.22-00 lakhs under agreement of sale and she has paid Rs.3-00 lakhs amount on 19.2.2005 and thereafter, plaintiff has not paid any amount either to 1st defendant or to her agent appointed under GPA. Hence, considering the citations relied by the counsel for defendant No.2 and 3 in respect of readiness and willingness, wherein though plaintiff has pleaded her readiness and willingness in respect of compliance under Sec. 16© of Specific Relief Act, but plaintiff 51 OS. No.10092 of 2005 has failed to prove her readiness and willingness by cogent proof and evidence both oral as well as documentary evidence and as such, I hold that though plaintiff has proved Issue No.1 regarding execution of Ex.P.3 by 1st defendant through her GPA holders, but at the same time, plaintiff has utterly failed to prove her readiness and willingness to perform her part of contract strictly in compliance with Sec.16(c) of Specific Relief Act 1963. Hence, after scrutiny of evidence of P.W.1 and 2, wherein plaintiff has utterly failed to prove her continuous readiness and willingness in order to perform her part of contract and as such, plaintiff failed to prove the necessary ingredients of her readiness and willingness, which is most important factor to be proved and established by the plaintiff in a suit for specific performance. Hence, plaintiff proved Issue no.1, but at the same time, she failed to prove Issue No.2 framed in this case and accordingly, Issue No.1 is answered in affirmative and Issue No.2 in negative against plaintiff.
21. Issue No.3: The defendant No.2 and 3 have specifically contended that the suit filed by the plaintiff is bad for mis-joinder and non-joinder of necessary parties in their written statement filed in this suit. The plaintiff has filed this suit for specific performance of contract initially against defendant No.1 only making defendant No.1 as party on the allegations that 1st defendant agreed to sell the suit 52 OS. No.10092 of 2005 schedule property in favour of plaintiff under sale agreement dated 18.2.2005, wherein defendant No.2 and 3 have got impleaded themselves in this suit claiming to be subsequent purchasers/bonafide purchasers of suit schedule property under sale deed dated 17.4.2006 as per I.A.No.2. The counsel for the plaintiff in his arguments contended that as per Sec. 226 of Indian Contract Act 1872, the defendant No.1, who is the original owner of the suit schedule property, wherein defendant No.1 agreed to convey the schedule property in favour of plaintiff under agreement of sale dated 18.2.2005 and as such, defendant No.1, who is a necessary party to this suit for specific performance and as such, defendant is arrayed as party/defendant No.1 while filing the suit by the plaintiff, but on appreciation of the evidence placed on record, wherein on perusal of af suit agreement produced and relied by the plaintiff marked in this case as per Ex.P.3, wherein this sale agreement dated 18.2.2005 is executed on behalf of 1st defendant by her appointed agents/GPA holders Sri.C.Shivaram and Sri.Mohammed Mukthar by virtue of registered GPA executed by 1st defendant in favour of her GPA holders namely Sri.C.Shivaram and Sri.Mohammed Mukthar as per registered GPA marked at Ex.P.12 dated 8.4.2004, wherein the defendant No.1, who is the absolute owner of the suit schedule property i.e., property No.65 and defendant No.1 purchased the property in Sy.No.49/1 and 51 of Bagalgunte 53 OS. No.10092 of 2005 village under registered title deeds from its previous owner late H.T.S.Rao and 1st defendant had transferred her rights by execution of registered GPA dated 8.4.2004, wherein by execution of this registered GPA, 1st defendant had transferred her right, title and interest in order to sell the suit schedule property to the intending purchasers and on perusal of Ex.P.3, wherein the GPA holders of 1st defendant had executed the sale agreement Ex.P.3 on 18.2.2005 on the strength of Ex.P.12 and even plaintiff has caused legal notices prior to institution of the suit, notice dated 4.6.2005 and 2.9.2005 to the GPA holders of 1st defendant and even plaintiff had received a notice of caveat petition filed by the 1st defendant through her GPA holders/caveat petitioners 1 and 2 in C.P.No.6021/2005 and though plaintiff knew that she has not issued any legal notice to defendant No.1 prior to institution of the suit and also plaintiff very well knew about the execution of sale agreement dated 18.2.2005 by the GPA holders of 1st defendant on the strength of registered GPA dated 8.4.2004, wherein the plaintiff ought to have impleaded the GPA holders of 1st defendant namely Sri.C.Shivaram and Sri.Mohammed Mukthar, who are necessary and proper party to array as defendants, who are party to the agreement of sale and GPA holders of 1st defendant had executed Ex.P.3 in favour of plaintiff. Hence, non impleading of the GPA holders by the plaintiff in the suit for specific performance of contract, wherein the suit suffers 54 OS. No.10092 of 2005 from legal infirmity of mis-joinder and non-joinder of necessary parties and though plaintiff had received the notice of the written statement filed by defendant No.2 and 3 raising the plea of mis-joinder and non-joinder of necessary parties, the plaintiff has not made attempt to implead the GPA holders of defendant No.1, who are signatories and party to the agreement of sale in question at Ex.P.3. Hence, the counsel for the defendant No.2 and 3 in his arguments contended that the plaintiff is seeking relief of specific performance of contract based upon Ex.P.3 and also exchanged legal notice issued on 4.6.2005 and on 2.9.2005 and he further relied upon Ex.P.2 undated letter given by 1st defendant informing the plaintiff that 1st defendant had executed registered power of attorney in favour of Sri.C.Shivaram and Sri.Mohammed Mukthar and in the letter Ex.P.2, 1st defendant also informed that she has not revoked Ex.P.12 executed by her in favour of her attorney holders and till completion of sale transaction, the registered GPA subsists legally for the acts and deeds to be done by 1st defendant is delegated her agents under the registered GPA at Ex.P.12 and hence in view of execution of Ex.P.3 by GPA holders of 1st defendant and they are signatories to the agreement becomes necessary party for adjudication of the lis and in this case though plaintiff had relied upon Ex.P.2, the letter executed by defendant No.1 regarding appointing GPA holders by her in respect of schedule property and also 55 OS. No.10092 of 2005 1st defendant also affirmed regarding execution of registered P.A deed in favour of her appointed agents under Ex.P.2, but still plaintiff has framed this suit impleading defendant Smt.Anuradha Nagendra inspite of having knowledge and plaintiff had received original GPA marked at Ex.P.12 to her custody including letter Ex.P.2 undated given by defendant No.1. Hence, the defendants have proved that the suit filed by the plaintiff suffers from legal infirmity of mis-joinder and non-joinder of necessary party and though plaintiff is aware of consequences in a suit for specific performance knowingly without impleading necessary and proper parties to this suit has taken by the risk of proceeding with the suit and plaintiff has deliberately not impleaded the appointed agents of 1st defendant as party defendants instead of defendant No.1 in this suit. Hence, Issue No.3 is proved and established by the defendants as against plaintiff herein and accordingly, Issue No.3 is answered in affirmative.
22. Issue No.4 and 5 and Additional Issue No.1 and 2: The plaintiff has filed this suit for the relief of specific performance of contract relying upon Ex.P.3 dated 18.2.2005, wherein she has presented this plaint originally against Smt. Anuradha Nagendra, wife of A.K.Nagendra makaing her as party defendant and plaint was presented on 15.12.2005 and subsequently defendant No.2 and 3 got impleaded in this suit on the ground that they have purchased the suit 56 OS. No.10092 of 2005 schedule property from GPA holders of 1st defendant under sale deed dated 17.4.2006 and I.A.No.2 came to be allowed on 14.11.2006 and accordingly, defendant No.2 and 3 have come on record on the strength of sale deed dated 17.4.2006. The plaintiff has claimed the relief of specific performance of contract and also challenged the registered sale deed dated 17.4.2006 relied by defendant No.2 and 3 stating that the said sale deed transaction dated 17.4.2006 is not binding upon the plaintiff as it is executed during pendency of the suit and as such, it is hit by Sec.52 of T.P.Act and as such, plaintiff has challenged the validity of Ex.D.1 dated 17.4.2006. On the contrary, defendant No.2 and 3 have contested the suit, whereas defendant No.1 remained exparte and defendant No.2 and 3 have specifically contended that the GPA holders have executed sale deed in their favour on 17.4.2006 on the pretext that the sale agreement Ex.P.3 executed in favour of plaintiff stands terminated and cancelled by lapse of time as plaintiff did not performed her part of contract and the GPA holders of defendant No.1 has given reply notice rescinding the contract and also informed the plaintiff of forfeiting the advance amount and thereafter, defendant No.2 and 3 verified the documents in respect of schedule property and purchased the property after due verification of title of 1st defendant in respect of suit schedule property and hence, defendant No.2 and 3 have claimed their status as bonafide purchasers. After hearing 57 OS. No.10092 of 2005 the arguments of both sides and on perusal of the citations referred by the counsel for plaintiff and counsel for defendant No.2 and 3, wherein this court has already negatived Issue No.2 regarding readiness and willingness and also further held that the time specification agreed by the parties under Ex.P.3 of 4 months from 18.2.2005 till 17.6.2005, wherein the time of 4 months agreed for the performance of obligation of contract by both the parties, who was one with the understanding to perform their act respectively within that time and time was the essence of contract, but after appreciation of the evidence placed on record and while discussion of Issue No.1 and 2, this court already given findings holding that plaintiff has committed breach of contract as she did not proved her continuous readiness and willingness within the time stipulation of 4 months from 18.2.2005 to 17.6.2005 and as such, the GPA holders of defendant No.1 has caused legal notice/reply notice to the notices caused by the plaintiff dated 4.6.2005 and 02.09.2005 vide reply notice as per Ex.P.5 dated 14.6.2005 and as per the reply notice dated 16.9.2005 as per Ex.P.8 respectively. It is a fact proved on record that plaintiff was informed to obtain sale deed by paying balance sale consideration amount of Rs.97-00 lakhs on or before 17.6.2005 in the reply notice issued by 1st defendant's P.A.Holders in Ex.P.5, but plaintiff failed to obtain sale deed after receipt of reply issued by 1st defendant's P.A.Holders at 58 OS. No.10092 of 2005 Ex.P.5. Hence, this court has already recorded findings that the plaintiff failed to prove her readiness and willingness in compliance to Sec.16(c) Specific Relief Act and it is a fact that the GPA holders of 1st defendant on the strength of registered GPA Ex.P.12 have sold the suit schedule property in favour of defendant No.2 and 3 by execution of sale deed dated 17.4.2006 conveying the suit schedule property for sale consideration amount of Rs.1,05,54,000/- as per Ex.D.1 and on perusal of Ex.D.1(certified copy of sale deed) marked in this case dated 17.4.2006, wherein the sale deed recitals on page No.6, Clause No. (d) reveals that the GPA holders of the vendor had entered into an agreement, the purchaser has not come forward in obtaining the sale deed and hence, the agreement of sale came to be terminated except that the vendor has not entered into any agreement/s of sale, arrangement for sale or transfer, Memorandum of Understanding , Lease, mortgage, transfer in respect of schedule property with any other person individually or collectively. Hence, in view of this recitals contained in Clause No.(d), wherein the GPA holders of original owner/vendor of the schedule property, wherein she has terminated the contract by replying the notices and also forfeited the advance amount received in respect of transaction dated 18.2.2005 and after perusal of the clause contained in Ex.P.3, wherein in case of breach of contract terms and conditions, wherein the vendor has right to forfeit the advance amount as per 59 OS. No.10092 of 2005 Clause No.10 of this agreement Ex.P.3 and for this Clause No.10, the plaintiff has admitted the terms stipulated in the agreement and plaintiff has signed this agreement admitting Clause No.10 of Ex.P.3 and it is a fact that plaintiff failed to obtain sale deed within 4 months within 17.6.2005 and as such, time was the essence of contract as per Sec.55 of Indian Contract Act and facts of the case clearly attracts to Sec.55 of T.P.Act and as such, time was the essence of contract, wherein defendant No.1's P.A.Holders constrained to sell the schedule property for their urgent legal necessity and even by perusal of Ex.D.1, wherein they have sold the schedule property for lesser value as agreed under Ex.P.3, wherein defendant No.1 and her GPA holders have sustained loss by selling the suit schedule property in favour of defendant No.2 and 3, wherein plaintiff agreed to purchase for Rs.1,22,00,000/- and it is a fact that defendant No.1 constrained to sell the schedule property for Rs.1,05,54,000/-. Hence, even defendant No.1 has suffered loss to the tune of about Rs.17-00 lakhs by sale of property in favour of defendant No.2 and 3, though plaintiff by filing application, I.A.No.3 under Order 6 Rule 17 read with Sec.151 of CPC and got amended pleadings and prayed for alternative relief of refund of earnest amount paid by her, but the condition recited in Ex.P.3 gives power to defendant No.1 or to her GPA holders for forfeiting the advance amount in case of breach of contract on the part of the purchaser and 60 OS. No.10092 of 2005 in this case, the vendor had forfeited the earnest amount received from the plaintiff as per Clause No.10 of Ex.P.3 and since plaintiff failed to prove her readiness and willingness and on the contrary, it is proved on record that the Ex.P.3 stands cancelled in view of reply notice issued by defendant No.1's GPA holders at Ex.P.5 and P.8. Hence, the sale transaction dated 18.2.2005 under Ex.P.3 stands rescinded/cancelled for breach of contract on the part of plaintiff.
23. The agreement of sale Ex.P.3 and terms and conditions of this agreement provides for forfeiture of earnest amount in case of breach of contract on the part of the purchasers as per Clause No.10 and in case of vendor, Clause No.11 of Ex.P.3 attracts , but in this particular case, plaintiff did not proved her readiness and willingness that too continuous readiness and willingness from the date of Ex.P.3 till filing of the suit and also plaintiff has not established the requirement of Sec.16(c) Specific Relief Act and on the contrary, time was the essence of contract of 4 months agreed under Ex.P.3, but plaintiff could not obtained sale deed by paying balance sale consideration amount of Rs.97-00 lakhs to defendant No.1 or to her agents and though plaintiff has stated in her pleadings and affidavit evidence stating that she was waited before the Sub Registrar office on 26.8.2005, but there is no document produced by 61 OS. No.10092 of 2005 the plaintiff and on the contrary, plaintiff has pleaded vague pleadings in her pleadings that herself and her husband P.W.2 waited in the office of Sub Registrar ,Bangalore North Taluk along with financial instrument for payment of stamp duty, registration fee and also balance sale consideration amount towards the suit schedule property and if really, the plaintiff intends obtain sale deed, the plaintiff must have sent the draft sale deed prepared for the signature of defendant No.1 or her GPA holders when GPA holders of defendant No.1 had replied the notice issued on 4.6.2005, but plaintiff has not made any such attempt in order to sent the balance sale consideration amount by obtaining any negotiable instruments like D.D, pay order, banker cheque and by way of other mode of payments to defendant No.1 or to her appointed agents under Ex.P.12 and hence, the statement made by plaintiff in para No.18 of her plaint averments that on 25.8.2005, 26.8.2005 and on 8.9.2005, 14.9.2005, 15.9.2005 and on 5.10.2005, she visited the office of Sub Registrar , Bangalore North Taluk at the instance of defendant No.1 for the purpose of paying balance sale consideration amount to obtain valid conveyance is not supported by any cogent documentary evidence and on the contrary, plaintiff has not produced any cogent evidence in respect of her readiness and willingness and already defendant No.1 through her appointed GPA holders had replied the notice and informed the plaintiff of revocation of 62 OS. No.10092 of 2005 contract, if plaintiff not complied the execution of sale deed on or before 17.6.2005 and hence, as per Ex.P.5, plaintiff failed to act upon and she could not obtain sale deed by paying balance sale consideration amount to defendant No.1 or to her appointed agents. Hence, Ex.P.5 clearly reveals that the GPA holders of defendant No.1 had clearly informed the plaintiff to comply her part of contract on or before 17.6.2005, otherwise, the sale transaction entered under Ex.P.3 stands terminated/cancelled, but in this case, plaintiff failed to perform her part of contract on or before 17.6.2005 and as per the terms and conditions of Ex.P.3, the defendant No.1or her agents accrued right to forfeit the advance amount paid under Ex.P.3 and also 1st defendant accrued right to rescind the contract for breach of contract on the part of purchaser and there was no necessity for the plaintiff to cause any notice before expiry of 4 months of period agreed under Ex.P.3, but plaintiff got issued legal notice prior to completion of 4 months time fixed under Ex.P.3 on 4.6.2005, but on the contrary, the documents in respect of schedule property were already delivered to the plaintiff and the document mentioned at Ex.P.4 do not required for the purpose of the execution of sale deed and defendant No.1 was having clear and marketable title as on the date of execution of Ex.P.3 and there was no hurdle for the plaintiff to obtain sale deed by paying balance sale consideration amount, but plaintiff failed to prove her readiness and willingness in compliance to 63 OS. No.10092 of 2005 Sec.16(c) Specific Relief Act and as such, the contention of GPA holders of defendant No.1 as urged in reply notice at Ex.P.5 deserves to be accepted in the facts and circumstances of this case and as such, in view of reply notice at Ex.P.5, the purchaser/plaintiff failed to perform her part of contract and as such, the agreement Ex.P.3 stands cancelled for breach of contract on the part of plaintiff and this fact has been made reference in the sale deed Ex.D.1, wherein the sale deed is executed on behalf of 1st defendant by her appointed attorney holders in favour of defendant No.2 and 3 on 17.4.2006, wherein the GPA holders have made reference in this sale deed stating that the previous agreement entered into by GPA holders with plaintiff stands revoked and have executed sale deed for their legal necessity by receiving lesser value of consideration as shown in Ex.D.1. Though plaintiff has relied upon documents marked as per Ex.P.28, P.29 and P.30, but these documents are produced by the plaintiff after lapse of more than 6 years from the date of filing the suit on 24.9.2011 and if really plaintiff had drilled/dug a tube well/bore-well in the schedule site, plaintiff could have proceeded further for installation of submersible electric motor in order to lift the water from the tube-well dug in the schedule property. On the contrary, Ex.P.28, P.39 and P.30 these documents do not reveals in which property the alleged bore-well has been drilled or dug. Hence, it appears that plaintiff has manipulated Ex.P.28, P.29 and P.30 and 64 OS. No.10092 of 2005 produced the documents in the year 2011 in this case, much after filing of the suit and even plaintiff has not produced any documentary evidence to show that she has contacted any architect and obtained any report regarding modification or repairs to the existing building and on the contrary, the GPA holders of defendant No.1 had conveyed property as per Ex.D.1 after termination of contract as per Ex.P.5 and Ex.P.8 on 17.4.2006 and they have sold the schedule property, but plaintiff inspite of the legal notice given by the 1st defendant's GPA holders as per Ex.P.5 and Ex.P.8 still bent upon to file the suit for specific performance of contract . Hence, after scrutiny of oral and documentary evidence placed on record, wherein the plaintiff failed to prove her readiness and willingness and also the sale transaction could not be completed due to fault of the plaintiff and even to frame of suit and non impleading of the GPA holders of defendant No.1, who are necessary party in this case as per Ex.P.12. The suit suffers from legal infirmity and even plaintiff failed to establish her financial status and capacity to pay balance sale consideration amount and she had kept ready the amount payable to defendant No.1 or to her agents at relevant point of time, when GPA holders of defendant No.1 have issued notice as per reply notice Ex.P.5. Hence, plaintiff is not entitled for the relief of specific performance and on the contrary, in view of breach of contract obligation on the part of plaintiff, wherein Ex.P.3 transaction stands 65 OS. No.10092 of 2005 cancelled in the eyes of law and the said agreement cannot be enforceable against defendant No.1 or against subsequent purchasers and on the contrary, defendant No.2 and 3 have given evidence by examining them and also D.W.2 is examined, who was an agreement holder and that agreement of sale dated 18.1.2006 was cancelled and P.W.2 was paid that amount on the date of registration of sale deed and as such, considering the evidence of P.W.1 and 2 and that of D.W.1 to 3, wherein the proved facts and circumstances shows that the plaintiff failed to prove her readiness and willingness as required under Sec.16(c) Specific Relief Act and as such, in view of Ex.P.5 and P.8 the alleged contract entered under Ex.P.3 stands terminated and thereafter, defendant No.1's GPA holders have executed sale deed in favour of defendant No.2 and 3 on 17.4.2006 and GPA holders have accrued right to forfeit the advance amount paid by the plaintiff in view of her failure to complete her part of performance and as such, defendant No.1 suffered loss as she could not get sale consideration amount of Rs.1,22,00,000/-. She was compelled to sell the property for lesser price as shown in Ex.D.1 for an amount of Rs.1,05,54,000/-. Hence, viewed from any angle, the plaintiff has no case on merits. Though counsel for defendant No.2 and 3 raised the question of payment of stamp duty and penalty in respect of Ex.P.3, but this court has already passed order on 8.2.2011, wherein plaintiff has not claimed 66 OS. No.10092 of 2005 any possession over the schedule property under Sec.51(A) of T.P.Act and she has not claimed her possession under part performance of contract and this court has already answered that Ex.P.3 is not attracted with Sec.33 and 34 of Stamp Act and posted the matter for further examination of P.W.1 and hence, the contention of defendant No.2 and 3 raised regarding impounding of Ex.P.3 will not arise at the stage rater it is marked in this case and admitted in evidence. Hence, viewed from any angle, wherein plaintiff failed to prove her case as pleaded in the plaint and also framed a suit without impleading GPA holders of 1st defendant as per Ex.P.12 is not maintainable, whereas GPA holders of defendant No.1, who are party to Ex.P.3 are necessary and proper parties and suit must failed on that count itself. Apart from that plaintiff failed to prove her readiness and willingness, which is mandatory under Sec.16(c) Specific Relief Act and plaintiff also not entitled for alternative relief of refund of earnest amount as this court has already held that there is breach of contract terms on the part of plaintiff herself and in view of Clause No.10 of Ex.P.3, the earnest amount shall have to be forfeited by the vendor and Clause No.10 is binding upon plaintiff and on the contrary, plaintiff failed to prove that sale deed Ex.D.1 is sham document and it is not binding upon her and it reveals from the order sheet, wherein initially there was interim order passed by this court and in view of caveat petition filed by defendant No.1's GPA 67 OS. No.10092 of 2005 holders, emergent notice was issued and notice of I.A.No.1 was issued and thereafter, case was posted to 6.3.2006 and plaintiff pre-pone the matter and this court passed order on I.A.No.1 and I.A.No.1 came to be allowed and defendant is restrained from alienating or encumbering the schedule property in favour of 3rd parties and this order came to be passed on 4.2.2006, but this injunction order is not served personally on defendant No.1 or on her P.A.Holders, wherein the GPA holders as per Ex.P.12 are not party in this suit and hence, there is no document forthcoming produced by the plaintiff to show that this injunction order granted on I.A.No.1 is either served on defendant No.1 personally after 4.2.2006. Hence, after appreciation of over all evidence placed on record, wherein plaintiff failed to prove as pleaded by her and on the contrary, the defendant No.2 and 3 have purchased the property from GPA holders of defendant No.1 after termination of contract entered into under Ex.P.3 under sale deed and hence, the sale deed filed by defendant No2. and 3 cannot be declared as null and void and the same cannot be a sham document. On the contrary, defendant No.2 and 3 have purchased property by paying valid consideration amount as per Ex.D.1 from GPA holders of defendant No.1. Hence, plaintiff also failed to establish Issue No.4 and 5 and Additional issue no.1 and 2 and admittedly defendant No.2 and 3 are in possession of suit schedule property by virtue of sale deed Ex.D.1. Accordingly, Issue No.4 and 5 and 68 OS. No.10092 of 2005 additional Issue No.1 and 2 are answered against plaintiff in negative findings.
24. Issue No.6: In view of my above findings submitted on Issue no.1 to 5 and Additional Issue No.1 and 2 and in view of detailed reasons and observations made on the preceding issue, wherein the suit filed by the plaintiff deserves to be dismissed. However, in the facts and circumstances of the case, the cost of the suit are made easy directing the parties to bear their own costs. Hence, I proceed to pass the following:-
OR D E R The suit filed by the plaintiff for the relief of specific performance of contract based upon Ex.P.3 or for grant of alternative relief of refund of earnest amount paid by her in respect of contract dated 18.2.2005 is hereby dismissed.
However, there is no order as to costs.
Draw decree accordingly.
{Dictated to the Judgment writer , transcribed by her, corrected and then pronounced by me in open court this 23rd day of July, 2015.} 69 OS. No.10092 of 2005 (S.V.KULKARNI) XI ADDL.CITY CIVIL JUDGE BANGALORE CITY.
ANNEXUERE List of witnesses examined for plaintiff:-
P.W.1 Smt. Shantha Raghuram P.W.2 Sri. M.R.Raghuram
List of documents exhibited for plaintiff:-
Ex.P.1 Receipt executed by 1st defendant for having received for the advance amount of Rs.3-00 lakhs from plaintiff dated 19.2.2005 Ex.P.2 Nil dated letter addressed to plaintiff by 1st defendant regarding affirmation of agreement of sale dated 18.2.2005 and GPA executed her in favour of her two agents.
Ex.P.3 Agreement of sale dated 18.2.2005
executed by GPA holder of
defendants in favour of plaintiff.
Ex.p.4 Office copy of Legal notice dated
4.6.2005 .
Ex.P.5 Reply notice dated 4.6.2005 issued by
defendant No.1.
Ex.P.6 General Power of attorney dated
8.4.2004 executed by plaintiff a in
favour of her husband dated
13.6.2005
70 OS. No.10092 of 2005
Ex.P.7 Office copy of Legal notice dated
2.9.2005
Ex.P.8 Reply notice by defendant No.1 dated
16.9.,2005
Ex.P.9 Certified copy of sale deed dated
2.11.1972 by Marannaa in favour of
Sri.H.T.S.Rao in respect of land
measuring 1.32 guntas in Sy.No.51
of Bagalgunte village,Yeswanthapura
Hobli, Bangalore North Taluk
Ex.P.10 Certified copy of sale deed dated
8.1.1973 executed by
Chikkabeeranna and others in favour
of H.T.S.Rao in respect of Sy.No.51.
Ex.P.11 Original sale deed executed by
H.T.S.Rao in favour of Smt.Anuradha
Nagendra in respect of Sy.No.51 of
Bagalgunte village
Ex.P.12 Registered GPA dated 8.4.2004
executed Smt.Anuradha Nagendra in
favour of Sri.C.Shivaram and
Sri.Mohammed Mukthar
Ex.P.13 Index of Lands issued by the
Tahasildar, Bangalore North Taluk
dated 25.2.1983
Ex.P.14 Mutation register extracts in respect of Sy.No.49/1 and 51 Bagalgunte village Ex.P.15 RTC extract of Sy.No.51 for the period 1984-1985 standing in the name of Smt.Anuradha Nagendra 71 OS. No.10092 of 2005 Ex.P.16 RTC extract of Sy.No.51 for the period 2002-2003 in the name of Smt.Anuradha Nagendra Ex.P.17 RTC extract of Sy.No. 51 for the year 2004-2005 in favour of Smt.Anuradha Nagendra Ex.P.18 Tax paid receipt dated 7.8.1984 Ex.P.19 Tippani copy of Sy.No.51 issued by the Tahasildar, Bangalore North Taluk dated 23.6.2005 Ex.P.20 Akarband (settlement) extract dated 23.6.2005 of Sy.No.51 of Bagalgunte village Ex.P.21 Endorsement issued by the Spl.Tahasildar, Bangalore North Taluk in respect of Sy.No.51 of Bagalgunte village dated 22.6.2005 Ex.P.22 Encumbrance certificate issued by the Sub Registrar , Bangalore North Taluk dated 16.1.1987 Ex.P.23 Encumbrance certificate in respect of Sy.No.51 Ex.P.24 Encumbrance certificate issued by Sub Registrar dated 25.6.2005 in respect of site No.65 of Sy.No.51 of Bagalgunte village measuring 140 X 135 ft, Ex.P.25 Certified copy of Encumbrance certificate in respect of site No.65 issued by Tahasildar, dated 25.6.2005 72 OS. No.10092 of 2005 Ex.P.26 Nil Encumbrance certificate in respect of site No.65 issued by Tahasildar, dated 25.6.2005.
Ex.P.27 Extract issued by the City Municipal Council, Dasarahalli, Bangalore regarding payment of development charges.
Ex.P.28 Ground water survey report dated
6.3.2005 issued by Hydro geologist.
Ex.P.29 Bore-well completion report dated
9.3.2005
Ex.P.30 Receipt for having drilled bore-well
dated 9.3.2005 issued by Kannan
Borewell company
List of witnesses examined for defendant:
DW.1 Sri. Gangadghara S.R
D.W.2 Sri.H.M.Ananda Reddy
D.W.3 Sri. Meer Jawahar Ahmed
List of documents exhibited for Defendant:-
Ex.D.1 Certified copy of sale deed dated
17.4.2006 in respect of schedule
property executed by GPA holders of
defendant No.1ifo defendant No.2
and 3
Ex.D.2 Form No.B property extract site
No.65 in Sy.No.51 for the year
201302014 issued by Assistant
73 OS. No.10092 of 2005
Revenue Officer, BBMP
Ex.D.3 to D.8 Tax paid receipts dated 28.8.2010,,
28.8.2010, 8.1.2014,
8.1.2014,8.1.2014 and 8.1.2014
respectively
Ex.D.9 Nil encumbrance certificates for the
period from 1.4.1970 to 31.3.2014
Ex.D.10 Encumbrance certificate of 2 years
from 1.4.2005 to 17.4.2006 dated
18.4.2006
Ex.D.11 Transfer of R.R.No In the name of
defendant No.2 letter of BESCOM
Authority dated 23.01.2014
Ex.D.12 to D.14 KEB receipt dated 7.2.2014 and two electricity demand bills issued by BESCOM authority Ex.D.15 Certified copy of sale deed dated 13.4.2006 executed by defendant No.3 in favour of Mariswamy S.V Ex.D.16 Gazette Notification dated 22.2.2002 Ex.D.17 Letter addressed to defendant No.3 dated 2.2.2004 under RTI Act 2005 Ex.D.18 Determination of compensation in respect of Sy.No.173, 174, of Solur village.
Ex.D.19 LAC disbursement of compensation
Register .
Ex.D.20 Genealogy of family of defendant
No.3
74 OS. No.10092 of 2005
XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
75 OS. No.10092 of 2005