Bangalore District Court
Sri.K.Dharmendra Singh vs Smt.M.K.Saroja on 19 October, 2019
IN THE COURT OF THE XLII ADDL., CITY CIVIL & SESSIONS JUDGE AT
BENGALURU CITY (CCH.NO.43).
PRESENT: Sri.P.SRINIVASA,
B.A.L., LL.M.,
XLII ADDL., CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
Dated this the 19th day of October, 2019.
O.S.No.8271/2015
Plaintiffs:- 1. Sri.K.Dharmendra Singh,
S/o.Ramanath Singh,
Aged about 39 years,
R/at No.113, 1st Floor,
Srinivasa Reddy Building,
10th Main, 30th Cross,
J.P.Nagar 1st Phase,
Bengaluru - 560 078.
2. Smt.Krishna Singh
W/o.K.Dharmendra Singh,
Aged about 34 years,
R/at No.113, 1st Floor,
Srinivasa Reddy Building,
10th Main, 30th Cross,
J.P.Nagar 1st Phase,
Bengaluru - 560 078.
(By Adv. S.V.Ramachandra)
v.
Defendants:- 1. Smt.M.K.Saroja,
W/o.Sri.Sounderajan,
Aged about 63 years,
R/at No.1109/2,
47th Cross, 9th Main,
J.P.Nagar 1st Phase,
Bengaluru - 560 078.
Judgment
2 O.S.No.8271/2015
2. Sri.G.Satish Chandra,
S/o.A.Govindappa,
Aged about 40 years,
3. Sri.G.Ganapathi,
S/o.A.Govindappa,
Aged about 38 years,
Defs.2 & 3 are R/at No.1031/D,
2nd Floor, 40th Cross,
4th 'T" Block, Jayanagara,
Bengaluru - 560 041.
(D1 by Adv. H.S.Somnath
D2 & D2 by Adv. Shivarudrappa
Shettiar
Date of institution of the suit : 29.09.2015
Nature of the suit : Specific Performance of
Contract, Declaration &
Permanent Injunction
Date of commencement of : 09.03.2018
Recording of the evidence
Date on which the Judgment : 19.10.2019
was pronounced
Total Duration : Years Months Days
04 00 20
(P.SRINIVASA)
XLII ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
JUDGMENT
The plaintiffs have filed the above suit for specific performance of contract, declaration that Sale Deed dated Judgment 3 O.S.No.8271/2015 01.01.2015 executed by defendant No.1 in favour of defendants 2 & 3 in respect of the suit schedule property is null and void and not binding on the plaintiffs, for permanent injunction restraining defendant No.1, her agents, P.A.Holders or anybody acting on her behalf from alienating, encumbering or creating charge or third party interest over suit schedule property and costs.
2. The plaintiffs' case in brief as under:-
It is the case of the plaintiffs that, property bearing No.1109/2, totally measuring 4089.75 square feet was acquired by defendant No.1 from her mother vide., registered Gift Deed
03.10.2006 and the revenue records of the said property stands in her name and she is the absolute owner and in possession of the entire property. In order to meet legal necessities and to discharge legal debts, defendant No.1 offered to sell portion of the above said property, measuring 851 square feet i.e., suit schedule property to the plaintiffs. The plaintiffs agreed to purchase the same and both parties fixed the sale consideration at Rs.46,00,000/- and both entered into an Agreement of Sale on 25.06.2014. The plaintiffs paid total sum of Rs.5,00,000/- as advance amount to defendant No.1 and agreed to pay balance sale consideration of Rs.41,00,000/- at the time of registration of the Sale Deed and defendant No.1 agreed for the same. Further, Judgment 4 O.S.No.8271/2015 defendant No.1 agreed to discharge loan of Rs.50,00,000/- which she had borrowed from M/s.Surabhi Chits Ltd., Jayanagar by executing mortgage deed in respect of entire property within 60 days from the date of Agreement of Sale and intimate the same to the plaintiffs. Inspite of expiry of 60 days, defendant No.1 failed to discharge the said loan and failed to go for registration of the sale deed by receiving balance sale consideration. Inspite of repeated demands made by the plaintiffs, defendant No.1 failed to complete sale transaction as per the terms of Agreement of Sale. After coming to know that defendant No.1 is trying to alienate the suit schedule property to third parties for higher price, the plaintiffs demanded defendant No.1 to execute registered Sale Deed by receiving balance sale consideration but, defendant No.1 failed to discharge loan and execute the Sale Deed in favour of the plaintiffs. In this regard, plaintiffs made repeated requests through phone call and personal approach but, defendant No.1 failed to clear outstanding loan and produce the discharge deed and encumbrance certificate to complete the sale transaction as agreed in the Agreement of Sale. Hence, the plaintiffs issued legal notice on 07.10.2014 calling upon defendant No.1 to discharge loan and receive the balance sale consideration and execute Sale Deed. But, defendant No.1 issued reply dated 09.10.2014 stating that she is unable to discharge the Judgment 5 O.S.No.8271/2015 loan and she is dependent upon the balance sale consideration amount from the plaintiffs to discharge the loan. Further, defendant No.1 issued legal notice on 27.10.2014 threatening that plaintiffs are not complying with the demand made by defendant No.1 in her reply notice and she will be cancelling/terminating the Agreement of Sale dated 25.06.2014 and forfeit the advance amount received from the plaintiffs. The plaintiffs have issued reply on 05.11.2014 to the said notice and demanded defendant No.1 to clear the outstanding loan and execute Sale Deed in favour of the plaintiffs. Inspite of two legal notices and two reply notices, defendant No.1 failed to comply her legal obligation as per Agreement of Sale. On 27.10.2014, defendant No.1 issued a rejoinder to the legal notice dated 27.10.2014 and stated that defendant No.1 is ready to discharge the mortgage by raising a loan from the third parties subject to condition that the plaintiffs show evidence that they possess Rs.41,00,000/-. The plaintiffs issued reply to said rejoinder by furnishing the bank account at State Bank of India and having sufficient finds in their bank account. Inspite of the same, defendant No.1 has not cleared the loan with M/s.Surabhi Chits Funds. On 26.11.2014, the plaintiffs have issued one more legal notice to cover up her latches and put the blame on the plaintiffs. After filing of the above suit, the plaintiffs came to know that Judgment 6 O.S.No.8271/2015 defendant No.1 has alienated the suit schedule property in favour of defendants 2 and 3 and has executed Sale Deed on 01.01.2015 in favour of defendants 2 & 3. The subsequent purchasers are not bonafide purchasers. The defendants in collusion with each other have created the Sale Deed dated 01.01.2015. Said sale transaction is null and void and not binding on the plaintiffs. Hence, the plaintiffs have filed the above suit.
3. In response to the suit summons, defendants 1 to 3 have appeared before the court through their respective counsels. Defendant No.1 has filed her written statement and defendants 2 and 3 have filed common written statement before this court. It is the case of defendant No.1 that property bearing No.1109/2 totally measuring 4809 square feet belongs to her and she intended to sell suit schedule property and the plaintiffs approached defendant No.1 through real estate agents and offered to purchase the same. After negotiations between the parties, both parties entered into Agreement of Sale dated 25.06.2014 for a total sale consideration of Rs.46,00,000/- and the plaintiffs paid Rs.5,00,000/- in total as advance amount to defendant No.1. Both the parties agreed that the entire sale transaction should be completed within 60 days from the date of Agreement. Therefore, time is the essence of the contract.
Judgment 7 O.S.No.8271/2015 Further, defendant No.1 has contended that defendant No.1 intended to alienate the suit schedule property with the sole purpose and object to discharge her loan commitment of Rs.50,00,000/- which she had incurred from M/s.Surabhi Chits Ltd., and same was stipulated in clause 5 of the Sale Agreement. From the date of Sale Agreement, defendant No.1 was ready and willing to perform her part of the contract and in this regard, defendant and her son several times called upon the plaintiffs and requested the plaintiffs to come with balance sale consideration of Rs.41,00,000/- but the plaintiffs failed to come with balance sale consideration. Further, defendant No.1 has contended that several times she requested the plaintiffs to directly pay the remaining balance sale consideration amount to M/s.Surabhi Chits Ltd., and to clear the loan and balance remaining amount if any would be cleared by this defendant simultaneously. The plaintiffs by paying a meager amount as advance sale consideration amount are trying to block entire property of defendant No.1. The plaintiffs have no money to complete the sale transaction hence, plaintiffs are resorting to unwarranted tactics. As per sale agreement dated 25.06.2014, the plaintiffs are suppose to complete the sale transaction within 60 days i.e., on or before 25.08.2014. The plaintiffs have failed to complete the sale transaction on time and issued notice on 07.10.2014 seeking Judgment 8 O.S.No.8271/2015 specific performance of the contract. The defendant No.1 has issued detailed reply on 09.10.2014 to the aforesaid notice of the plaintiffs communicating her complete readiness and willingness to complete the sale transaction provided the plaintiffs show proof and availability of balance sale consideration amount with them and called upon the plaintiffs to complete the sale transaction within 7 days from receipt of the reply notice. The plaintiffs failed to comply the said reply notice dated 09.10.2014. Therefore, on 27.10.2014, defendant No.1 issued legal notice and cancelled/ removed / terminated sale agreement dated 25.06.2014 and forfeited the advance amount. The plaintiffs have issued reply notice on 05.11.2014 urging baseless grounds and questioning the termination of sale agreement dated 25.06.2014 by defendant No.1 and stated that they are ready and willing with balance sale consideration amount. On 12.11.2014, defendant No.1 issued a rejoinder to the termination notice dated 27.10.2014, intimating the plaintiffs that defendant No.1 is ready to discharge the mortgage loan by repaying amount to M/s.Surabhi Chit Ltd., by raising loan from third party subject to condition that the plaintiffs show the availability of Rs.41,00,000/- with them. The plaintiffs failed to show the availability of funds with them and instead issued a reply on 20.11.2014 stating that they have bank accounts in State Bank of India and failed to Judgment 9 O.S.No.8271/2015 produce bank statement extracts to show availability of funds in their accounts. Further, the plaintiffs contended that they have a site in BSK 6th Stage and they have entered into an Agreement of Sale with one Bhaskar. The plaintiffs failed to produce document to show the availability of sale consideration amount with them to complete the sale transaction. On 26.11.2014, defendant No.1 issued another notice to the plaintiffs, communicating that though she had cancelled and terminated the sale agreement dated 25.06.2014 and forfeited the advance amount as a noble gesture defendant No.1 is ready and willingness to afford the plaintiffs another last chance to complete sale transaction provided plaintiffs pay the balance sale consideration to this defendant within 15 days from the receipt of the notice. Along with said notice, defendant No.1 had furnished copy of No Objection Certificate dated 24.11.2014 issued by M/s.Surabhi Chits Ltd., communicating their no objection to defendant No.1 to sell the suit schedule property to the plaintiffs as per sale agreement dated 25.06.2014. The plaintiffs have received aforesaid notice on 27.11.2014 and till this date have not issued any reply to the said notice and on 29.09.2015 have filed the present suit without any cause of action. The plaintiffs have remained silent from 27.11.2014 till 29.09.2015, the said conduct of the plaintiffs clearly establishes that they are not ready and willing to perform Judgment 10 O.S.No.8271/2015 their part of the contract. In view of No Objection Certificate issued by M/s.Surabhi Chits Ltd., there was no hindrance or impediment for the plaintiffs to complete the sale transaction as per the terms and conditions of the Agreement of Sale dated 25.06.2014. Inspite of sufficient time and opportunities, the plaintiffs failed to pay the balance sale consideration and get the Sale Deed registered in their names. Therefore, on 01.01.2015, defendant No.1 sold the suit schedule property to defendants 2 and 3 vide., Sale Deed dated 01.01.2015 for valuable consideration. The plaintiffs are not entitle for any reliefs claimed. Hence, prayed that suit may be dismissed with costs.
4. The defendants 2 and 3 in their written statement have contended that they are the absolute owners of the suit schedule property. Further, they have contended that they are the bonafide purchasers of the suit schedule property for valuable consideration and the plaintiffs have failed to perform their part of the contract and plaintiffs were not ready and willing to perform their part of the contract in time. Therefore, sale agreement dated 25.06.2014 was cancelled by defendant No.1. Further, have contended that there is no cause of action to file the above suit. Hence prayed that suit may be dismissed with costs.
Judgment 11 O.S.No.8271/2015
5. On the basis of above pleadings, below mentioned issues arise for consideration:-
ISSUES
1. Whether the plaintiffs prove that, they are/were ready and willing to perform their part of contract as contended in the plaint?
2. Whether the plaintiffs prove that, defendant No.1 is liable to execute Sale Deed in favour of plaintiffs in respect of suit schedule property by receiving balance consideration amount of Rs.41,00,000/-?
3. Whether plaintiffs prove that, Sale Deed executed by defendant No.1 in favour of defendants 2 and 3 with respect to suit schedule property is null and void and not binding on the plaintiffs?
4. Whether defendant No.1 proves that plaintiff failed to perform his part of the contract and defendant No.1 is entitle to forfeit the advance amount of Rs.5,00,000/- as contended in his written statement?
5. Whether the defendant Nos.2 and 3 prove that, they are bonafide purchasers of suit schedule property for valuable consideration from defendant No.1 as contended in their written statement?
6. Whether the plaintiffs are entitle for the relief of injunction?
Judgment 12 O.S.No.8271/2015
7. Whether the plaintiffs are entitle for the relief of specific performance?
8. Whether plaintiffs are entitle for the reliefs claimed?
9. What order or decree?
6. To prove the case of the plaintiffs, plaintiff No.1 examined as PW-1 and got marked Ex.P1 to P39 and examined one witness as PW-2. The defendant No.3 examined as DW-1 and GPA Holder of defendant No.1 examined as DW-2 and got marked Ex.D1 to D10.
7. Heard arguments. The learned counsel for plaintiffs has relied upon the following citations reported in:-
1. AIR 2017 Supreme Court 5052, in the case of Nadiminti Suryanarayan Murthy (Dead) through LRs v. Kothurthi Krishna Bhaskara Rao and others.
2. AIR 2017 SC 3601, in the case of Parminder Singh v. Gurpreet Singh.
3. AIR 2001 Supreme Court 1392, in the case of Tek Chand and others v. Deep Chand and others.
4. LAW (KAR) 2017 1 47, in the case of Maruti S/o.Fakirappa Chivagol v.
Shri.Shrishailappa S/o.Chanappa Judgment 13 O.S.No.8271/2015 Metgud.
5. AIR 2000 Supreme Court 191, in the case of Manzor Ahmed Magray v. Gulam Hassan Aram and others.
6. AIR 1997 PATNA 10, in the case of Munarma Devi @ Manorama Devi v.
Gango Devi @ Gangia Devi and other.
7. AIR 1954 S.C. 75, in the case of Durga Prasad and another v. Deep Chand and others.
The learned counsel for defendants 2 and 3 has relied upon the following citations reported in
1. (2013) 15 Supreme Court Cases 27, in the case of I.S.Sikandar (Dead) by LRs. v.
K.Subramani and others.
2. (1928) 30 BOMLR 1242, in the case of Ardeshir H.Mama v. Flora Sassoon.
3. (1995) 5 Supreme Court Cases 115, in the case of N.P.Thirugnanam (Dead) by LRs v. Dr.R.Jagan Mohan Rao and others.
4. (1996) 4 Supreme Court Cases 526, in the case of His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar.
5. (2000) 2 Supreme Court Cases 428, in the case of Ram Awadh (Dead) by LRs and others v. Achhaibar Dubey and Judgment 14 O.S.No.8271/2015 another.
6. (2011) 12 Supreme Court Cases 18, in the case of Saradamani Kandappan v.
S.Rajalakshimi and others.
8. My findings on the above said issues are as follows:-
Issue No.1:- In the Negative.
Issue No.2:- In the Negative.
Issue No.3:- In the Negative.
Issue No.4:- In the Affirmative.
Issue No.5:- In the Affirmative.
Issue No.6:- In the Negative.
Issue No.7:- In the Negative.
Issue No.8:- In the Negative.
Issue No.9:- As per final order.
for the following:-
REASONS
9. Issue Nos.1 to 8:- These issues are taken up together for consideration to avoid repetition of facts, evidence and convenience.
10. PW-1 in his examination-in-chief has stated that property bearing No.1109/2, totally measuring 4089.75 square feet was acquired by defendant No.1 Vide., registered Gift Deed 03.10.2006. In support of the said contention, the plaintiffs have produced certified copy of the Gift Deed dated 03.10.2006 at Judgment 15 O.S.No.8271/2015 Ex.P1. Ex.P1 is a registered document and bears seal and signature of competent authority and it is not disputed by defendant No.1 hence, Ex.P1 is admissible in evidence and can be relied upon by this court. From the recitals of Ex.P1, it reveals that defendant No.1 has acquired property bearing No.1109/2, totally measuring 4089.75 square feet from her mother under registered Gift Deed 03.10.2006. It is also pertinent to note that, defendant No.1 in her written statement admits her title over the said property. Hence, as per Ex.P.1 defendant No.1 has acquired title over the property bearing No.1109/2, totally measuring 4089.75 square.
11. PW-1 in his examination-in-chief has stated that in order to meet legal necessity and to discharge legal debts defendant no.1 offered to sell suit schedule property and the plaintiffs agreed to purchase the same for sale consideration of Rs.46,00,000/- and both parties entered into Agreement of Sale dated 25.06.2014. In support of said contention, the plaintiffs have produced original Agreement of Sale dated 25.06.2014 at Ex.P4. It is pertinent to note that, defendant No.1 in her written statement and evidence admit execution of Ex.P4. Therefore, this court can rely upon Ex.P4. From the recitals of Ex.P4, it reveals that defendant No.1 had agreed to sell suit schedule property to Judgment 16 O.S.No.8271/2015 the plaintiffs for a total sale consideration of Rs.46,00,000/- and both parties entered into Agreement of Sale dated 25.06.2014. Therefore, contention of the plaintiffs that, plaintiffs and defendant No.1 entered into Agreement of Sale dated 25.06.2014 has to be accepted.
12. PW-1 in his examination-in-chief has stated that at the time of execution of Agreement of Sale dated 25.06.2014 the plaintiffs paid Rs.5,00,000/- as advance amount to defendant No.1. Ex.P4 i.e., Agreement of Sale which is admitted by defendant No.1 contains the recitals regarding payment of advance amount of Rs.5,00,000/- by the plaintiffs to defendant No.1 and acknowledgement of the same by defendant No.1. More over, defendant No.1 in her written statement admits receipt of advance amount of Rs.5,00,000/- from the plaintiffs. Further, DW.2 in his cross-examination admits receipt of advance amount from the plaintiffs. There is no dispute regarding payment of advance amount of Rs.5,00,000/- by the plaintiffs to defendant No.1.
13. The main dispute between the parties is regarding ready and willingness of the parties. Advocate for plaintiffs argued that defendant No.1 had mortgaged entire extent of the property with M/s.Surabhi Chits Ltd., and raised loan of Rs.50,00,000/- from Judgment 17 O.S.No.8271/2015 M/s.Surabhi Chits Ltd., and as per Clause 5 of the Agreement of Sale, defendant No.1 is bound to repay the loan amount and redeem the mortgage and inform the same to the plaintiffs before registration of the Sale Deed and defendant No.1 failed to clear the said loan amount therefore, defendant No.1 has failed to perform her part of the contract. Advocate for defendant No.1 argued that defendant No.1 had mortgaged the entire extent of 4089.75 square feet with M/s.Surabhi Chits Ltd., and had raised a meager loan amount of Rs.50,00,000/- and defendant No.1 had obtained No Objection Certificate from M/s.Surabhi Chits Ltd., to sell the suit schedule property in favour of the plaintiffs and same was communicated to the plaintiffs but, the plaintiffs failed to pay balance sale consideration amount and get the Sale Deed registered in their names. The plaintiffs failed to show availability of balance sale consideration amount of Rs.41,00,000/- with them. Further, argued that the entire property values more than 15-20 crores and there was no impediment for the plaintiffs to pay balance sale consideration amount and get Sale Deed registered in their names. The plaintiffs have no money and were not ready and willing to perform their part of the contract. It is not in dispute that as per Agreement of Sale both parties have to complete the sale transaction within 60 days from the date of agreement. The Agreement of Sale is dated 25.06.2014 and sale Judgment 18 O.S.No.8271/2015 transaction has to be completed within 25.08.2014. In the plaint, the plaintiffs have stated that they were demanding defendant No.1 to execute Sale Deed personally and through phone. It is pertinent to note that, plaintiffs have not specifically pleaded the dates on which they personally met defendant No.1 and demanded her to execute the Sale Deed. The plaintiffs have produced two phone bill receipts dated 18.10.2014 and 30.04.2014 respectively at Ex.P23 & P24. There is no pleading or evidence to the effect that telephone number mentioned in Ex.P23 & P24 belongs to defendant No.1 hence, Ex.P23 & 24 cannot be accepted. Except self serving statement by plaintiffs no material evidence is produced by the plaintiffs to show that they personally and through phone demanded defendant No.1 to perform her part of the contract. Admittedly, total extent of property measures 4089.75 square feet. PW-2 is a Real Estate Agent and he admits that value of the property is Rs.15,000/- per square feet. From the above evidence, it can be inferred that value of the entire property belonging to defendant No.1 is substantially high. Admittedly, defendant No.1 has mortgaged the property with M/s.Surabhi Chits Ltd., and raised loan of Rs.50,00,000/-. In order to establish that defendant No.1 has marketable title over the suit schedule property, defendant No.1 has produced No Objection Certificate issued by M/s.Surabhi Chits Judgment 19 O.S.No.8271/2015 Ltd., at Ex.D1. Advocate for plaintiffs argued that defendant No.1 has not examined the concerned person from M/s.Surabhi Chits Ltd., to prove Ex.D1 hence, it cannot be relied upon. It is pertinent to note that, PW-1 in his cross-examination admits Ex.D1 therefore, above argument of plaintiffs' counsel is not sustainable. From Ex.D1, it clearly goes to show that M/s.Surabhi Chits Ltd., had issued No Objection Certificate for alienation of the suit property in favour of the plaintiffs. In view of No Objection Certificate, defendant No.1 had established her marketable title over the suit schedule property. It is pertinent to note that, both PWs.1 & 2 in their cross-examination admit receipt of No Objection Certificate issued by M/s.Surabhi Chits Ltd., therefore, there was no impediment for the plaintiffs to pay the balance sale consideration and get the Sale Deed registered in their names. Therefore, contention of the plaintiffs that defendant No.1 failed to discharge the loan and produce the discharge deed to them falls to grounds. It is pertinent to note that, defendant No.1 had issued legal notice dated 26.11.2014 along with No Objection Certificate of M/s.Surabhi Chits Ltd., to the plaintiffs and called upon them to pay balance sale consideration amount and get Sale Deed executed in their names within 15 days from the date of receipt of the notice. Inspite of said intimation to the plaintiffs, the plaintiffs have failed to pay balance sale consideration Judgment 20 O.S.No.8271/2015 amount and get the Sale Deed executed in their names. Therefore, adverse inference has to be drawn against the plaintiffs. Advocate for defendants 2 and 3 argued that in the Agreement of Sale there is no recital to the effect that defendant No.1 firstly has to clear the loan and then only plaintiffs are liable to pay the balance sale consideration amount and get the Sale Deed registered in their names.
In (2011) 12 Supreme Court Cases 18, in the case of Saradamani Kandappan v. S.Rajalakshmi and others, wherein para 54 reads as follows:
"54. The order of performance of reciprocal promises does not depend upon the oder in which the terms of the agreement are reduced into writing. The order of performance should be expressly stated or provided, that is, the agreement should say that only after performance of obligations of the vendors, under Clause 3, the purchaser will have to perform her obligations under Clause 4. As there is no such express fixation of the order in which the reciprocal promises are to be performed, the appellant's contention is liable to be rejected."
From the above judgment, it is clear that order of performance of reciprocal promises does not depend upon the order in which the terms of the agreement are reduced into writing. In the present Judgment 21 O.S.No.8271/2015 case, Agreement of Sale does not contain any recital to the effect that firstly defendant No.1 has to clear the loan of M/s.Surabhi Chits Ltd., and produce the discharge deed and then only the plaintiffs have to pay the balance sale consideration amount to defendant No.1 and get the Sale Deed registered in their names. There is no order of performance expressly stated in the Agreement of Sale. The plaintiffs must always be ready to perform their part of the contract. Therefore, contention of the plaintiffs that firstly defendant No.1 has to discharge loan of M/s.Surabhi Chits Ltd., and produce the discharge deed and then only the plaintiffs are liable to pay the balance sale consideration amount to defendant No.1 cannot be accepted. It is pertinent to note that, the plaintiffs have issued their first notice on 07.10.2014 i.e., after expiry of 60 days, calling upon defendant No.1 to repay the loan amount and execute Sale Deed in their favour. No explanation given by the plaintiffs for failure to issue any legal notice within 60 days from the date of Agreement of Sale, calling upon defendant No.1 to perform her part of the contract. Therefore, adverse inference has to be drawn against the plaintiffs.
14. Advocate for defendants argued that plaintiffs have no money with them and they are unable to show the availability of Judgment 22 O.S.No.8271/2015 balance sale consideration with them therefore, plaintiffs are not ready and willing to perform their part of the contract hence, defendant No.1 terminated the Agreement of Sale dated 25.06.2014 and forfeited advance amount of Rs.5,00,000/-. Advocate for the plaintiffs argued that the plaintiffs are always ready and willing to perform their part of the contract. In (1996) 4 Supreme Court Cases 526, in the case of His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar , wherein the lordships have held as under:
"Specific Relief Act, 1963 - Ss.16(c) and 20 - Suit for specific performance of contract for sale of land
- Readiness and willingness of plaintif to perform his part of the contract - To be ascertained from the conduct of the party and attending circumstances - Meaning of 'readiness' and 'willingness' and distinction between - Where plaintif neither had sufcient funds to pay the consideration amount nor was he acting promptly within the stipulated time where time was of the essence of the contract, held, he was neither ready nor willing to perform his part of the contract - Hence plaintif not entitled to decree for specific performance of the contract".
The plaintiffs have to prove their ready and willingness to perform their part of the contract. Admittedly, the plaintiffs are liable to Judgment 23 O.S.No.8271/2015 pay balance sale consideration of Rs.41,00,000/-. Admittedly, the plaintiffs have not deposited the balance sale consideration amount of Rs.41,00,000/- before this court at the time of filing of the suit or during pendency of the suit. It is pertinent to note that, defendant No.1 had issued rejoinder to his notice dated 27.10.2014 as per Ex.P15 and called upon the plaintiffs to give evidence regarding availability of balance sale consideration amount of Rs.41,00,000/- with them. In reply to the said notice, the plaintiffs have issued reply as per Ex.P16 and baldly stated the bank account numbers. The plaintiffs have not furnished copies of their statements of accounts to defendant No.1 along with said notice. Therefore, adverse inference has to be drawn against the plaintiffs. In order to prove the financial capacity of the plaintiffs, the plaintiffs have produced statement of accounts of plaintiffs 1 and 2 at Ex.P13 & P14, copy of Sale Deeds dated 28.06.2014, Sale Deed dated 12.02.2004, Sale Deed dated 23.11.2016 and Income Tax Return acknowledgements at Ex.P28 to P39. As per Ex.P13 plaintiff No.1 had nominal balance amount in his account from 02.04.2014 till 17.11.2014 and on 17.11.2014 plaintiff No.1 had balance of Rs.1,51,794/- only. As per Ex.P14, plaintiff No.2 had nominal balance amount in her account from 01.04.2014 till 21.10.2014 and on 21.10.2014, she had only Rs.11,403/-. On 18.11.2014, the bank balance of plaintiff No.1 Judgment 24 O.S.No.8271/2015 raises to Rs.21,51,794/-. PW-1 in his cross-examination categorically admits that he had borrowed Rs.20,00,000/- from his friends and deposited the same in his account. Rs.20,00,000/- shown in plaintiff No.1's account on 18.11.2014 is the amount borrowed from his friend. Therefore, as on 18.11.2014, plaintiff No.1 had Rs.21,51,794. Further, PW-1 in his cross-examination admits that he transferred Rs.21,50,000/- from his account to the account of plaintiff No.2 i.e., his wife. Taking into account above evidence of PW-1, the remaining balance in the account of plaintiff No.1 will be Rs.1,794/-. Therefore, totally plaintiffs 1 and 2 had approximately Rs.21,00,000/- only in both the accounts. From Ex.P13 & P14 it cannot be inferred that the plaintiffs had total balance sale consideration of Rs.41,00,000/- in their accounts. Therefore, Ex.P13 & P14 produced by the plaintiffs to prove their financial capacity are not helpful to them. Further, the plaintiffs have produced Sale Deeds before this court to show that they have financial capacity to purchase the suit schedule property. It is pertinent to note that, the property mentioned in Ex.P28 is purchased for Rs.80,000/-, property mentioned in Ex.P29 is purchased for Rs.3,50,000/- and property mentioned in Ex.P30 is purchased for Rs.1,65,000/-. The properties purchased under Ex.P28 to P30 are not valuable properties as compared to the suit schedule property. The sale consideration mentioned in the said Judgment 25 O.S.No.8271/2015 Sale Deeds is not sufficient to show the availability of balance sale consideration amount with the plaintiffs. Hence, Ex.P28 to P30 are not helpful to the plaintiffs. Further, plaintiffs have produced one Sale Deed dated 23.11.2016 at Ex.P31 and said Sale Deed is come into existence after filing of the above suit. The said Sale Deed alone is not sufficient to prove the availability of Rs.41,00,000/- with the plaintiffs. The income tax returns produced by the plaintiffs before this court discloses that plaintiffs had annual income approximately Rs.6,54,000/- only for the year 2014-15. Similarly, the plaintiffs had total income approximately Rs.8,00,000/- for the year 2015-16 and for the year 2016-17 plaintiff No.1 had income approximately Rs.5,21,000/-. The income tax returns produced at Ex.P32 to P39 are not sufficient to show that plaintiffs had balance amount of Rs.41,00,000/-. PW-1 in his evidence has stated that his father had deposited amount in fixed deposits. Further, PW-1 has stated that he intended to sell one of his properties and raise amount to purchase the suit schedule property. The plaintiffs have not produced any documentary evidence to show that plaintiff No.1's father had deposited amount in fixed deposits. It is pertinent to note that, there is no pleading in the plaint to the above said effect. More over, no documentary evidence is produced by the plaintiffs to show that plaintiff No.1 had made arrangements to alienate his Judgment 26 O.S.No.8271/2015 BDA property and raise amount to purchase the suit schedule property. Except self serving statement of the plaintiffs, no documentary evidence is produced by them hence, evidence of PW-1 that plaintiff No.1's father had amount in fixed deposits and he intended to sell BDA property to purchase the suit schedule property cannot be accepted. The plaintiffs have failed to prove their financial capacity, readiness and willingness to purchase the suit schedule property. DW-2 in his evidence has categorically stated that inspite of issuance of notice and reply notices, the plaintiffs failed to show availability of funds with them to purchase the suit schedule property. Further, DW-1 has stated that even though defendant No.1 had terminated the agreement of contract and forfeited the advance amount of Rs.5,00,000/- as per Ex.P19 but, still as a last opportunity defendant No.1 called upon the plaintiffs to pay the balance sale consideration and get the Sale Deed registered in their names as per Ex.P19 but, the plaintiffs failed to do so. Therefore, defendant No.1 is entitle to forfeit the advance amount. From the records, it is clear that inspite of sufficient opportunities the plaintiffs failed to show the availability of balance sale consideration amount with them and get the Sale Deed registered in their names. Therefore, defendant No.1 is entitle to terminate the Agreement of Sale and forfeit the advance amount. The plaintiffs have contended that defendants 2 Judgment 27 O.S.No.8271/2015 and 3 are not bonafide purchasers and defendants in collusion have created Sale Deed. Per contra, DW-1 in his evidence has categorically stated that defendants 2 and 3 have purchased the suit schedule property for valuable consideration and they are the bonafide purchasers and have put up constructions over the suit schedule property. Ex.P2 is the Sale Deed of the defendants 2 and
3. From the recitals of Ex.P2, it reveals that defendants 2 and 3 have purchased the suit schedule property on 01.01.2015. in other words, defendants 2 and 3 have purchased the property after termination of Agreement of Sale dated 25.06.2014 i.e., Ex.P4 by the plaintiffs. The defendants 2 and 3 have paid sale consideration amount of Rs.46,00,000/- and purchased the suit schedule property. The sale consideration amount under Agreement of Sale and Sale Deed of defendants 2 and 3 are one and the same. The defendants 2 and 3 have purchased the suit schedule property for market value. The Sale Deed i.e., Ex.P2 corroborates payment of sale consideration amount by defendants 2 and 3 to defendant No.1. Further, the defendants have produced discharge deed at Ex.D9, to show that sale consideration paid by defendants 2 and 3 was utilized by defendant No.1 to repay the loan amount of M/s.Surabhi Chits Ltd. The defendants 2 and 3 have also produced sanctioned plan and photographs to establish that defendants 2 and 3 have put up Judgment 28 O.S.No.8271/2015 residential construction over the suit schedule property. The evidence produced by defendants 2 and 3 clearly establishes that defendants 2 and 3 are bonafide purchasers of the suit schedule property.
15. Advocate for defendants 2 and 3 argued that the defendant No.1 has cancelled / terminated the Agreement of Sale i.e., Ex.P4. Therefore, present suit is not maintainable without seeking declaratory relief i.e., termination of Agreement of Sale is bad in law.
In (2013) 15 Supreme Court Cases 27, in the case of I.S.Sikandar (dead) by LRs. v. K.Subramani and others, wherein the lordships have held as under:
"A. Specific Relief Act, 1963 - Ss.9, 16(b) and 34 - Suit for specific performance - Maintainability - Subsistence of contract essential precondition - Plaintif having failed to perform his part of the agreement, agreement already terminated by defendant vendor - In absence of plaintif's prayer seeking declaratory relief that termination of agreement was bad in law, held, suit for specific performance not maintainable".
From the above citation, it is clear that in cases where Agreement of Sale is terminated, the plaintiffs are liable to seek declaratory relief that termination of Agreement of Sale is bad in law. In the Judgment 29 O.S.No.8271/2015 present case, the plaintiffs have not sought any declaratory relief that termination of Agreement of Sale by defendant No.1 is bad in law. Therefore, on the said ground also the above suit is not maintainable. The learned counsel for plaintiffs has relied upon the following citations reported in:-
1. AIR 2017 Supreme Court 5052
2. AIR 2017 SC 3601
3. AIR 2001 Supreme Court 1392
4. LAW (KAR) 2017 1 47
5. AIR 2000 Supreme Court 191
6. AIR 1997 PATNA 10
7. AIR 1954 S.C. 75 The above citations relied upon by the plaintiffs' counsel are not applicable to the facts and circumstances of the present case. In the light of above discussion, I answer Issue Nos.1, 2, 3, 6 to 8 in the Negative and Issue Nos.4 & 5 in the Affirmative.
16. Issue No.9:-
In view of my above discussion, I proceed to pass the following:
ORDER Suit of the plaintiffs is dismissed with costs.
Judgment 30 O.S.No.8271/2015 Draw decree accordingly. (Dictated to the Judgement Writer, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, this the 19th day of October, 2019) (P.SRINIVASA) XLII Addl., City Civil & Sessions Judge, Bengaluru City.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side:
PW.1 - Sri.K.Dharmendra Singh PW.2 - Sri.V.Narendra Raju
(b) Defendants' side:
DW.1 - Sri.G.Ganapathi DW.2 - Sri.Soundar Rajan II. List of documents exhibited on behalf of:
(a) Plaintiff's side:
Ex.P1 : Certified copy of Gift Deed dated
03.10.2006
Ex.P2 : Certified copy of Sale Deed dated
01.01.2015
Ex.P3 : Encumbrance Certificate
Ex.P4 : Original Agreement of Sale dated
25.06.2014
Ex.P4(a) : Signature of PW-1
Ex.P4(b) : Signature of M.Sundar Rajan
Ex.P4(c) : Signature of Darshan
Judgment
31 O.S.No.8271/2015
Ex.P4(d) : Signature of defendant No.1
Ex.P4(e) : Signature of plaintiff No.1
Ex.P4(f) : Signature of plaintiff No.2
Ex.P5 : Legal Notice dated 07.10.2014
Ex.P6 : Postal Receipt
Ex.P7 : Postal Acknowledgement
Ex.P8 : Reply dated 09.10.2014
Ex.P9 : Legal Notice dated 27.10.2014
Ex.P10 : Reply dated 05.11.2014
Ex.P11 : Postal Receipt
Ex.P12 : Postal Acknowledgement
Ex.P13 & 14 : Statement of Accounts
Ex.P15 : Rejoinder dated 12.11.2014
Ex.P16 : Reply dated 20.11.2014
Ex.P17 : Postal Receipt
Ex.P18 : Postal Acknowledgement
Ex.P19 : Legal Notice dated 26.11.2014
Ex.P20 : Postal Cover
Ex.P21 & 22 : Encumbrance Certificates
Ex.P23 & 24 : Public Telephone Receipts
Ex.P25 & 26 : Photographs
Ex.P27 : CD
Ex.P28 : Certified copy of Sale Deed dated
28.06.2014
Ex.P29 : Certified copy of dated dated
28.06.2014
Ex.P30 : Certified copy of Sale Deed dated
12.02.2004
Ex.P31 : Certified copy of Sale Deed dated
23.11.2016
Ex.P32 to 39 : Income Tax Return
Acknowledgements
Judgment
32 O.S.No.8271/2015
(b) Defendants' side:
Ex.D1 : No Objection Certificate dated
24.11.2014
Ex.D2 : BBMP Sanctioned Plan
Ex.D3 to 5 : Photographs
Ex.D6 : CD
Ex.D7 : General Power of Attorney
Ex.D8 : Certified copy of Memorandum of
Mortgage by Deposit of Title Deeds
dated 19.01.2012
Ex.D9 : Certified copy of Deed of Discharge
dated 02.02.2015
Ex.D10 : Encumbrance Certificate
XLII ADDL., CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY.
Digitally signed by
SRINIVASA
DN:
cn=SRINIVASA,ou=HIGH
COURT OF
SRINIVASA KARNATAKA,o=GOVERN
MENT OF
KARNATAKA,st=Karnatak
a,c=IN
Date: 2019.10.23 17:00:30
IST
Judgment