Bangalore District Court
Shri Ravi D Kadabi vs Shri M.Munikrishnappa on 23 July, 2018
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 23rd day of July, 2018.
O.S.No.1827/2015
Plaintiff:- Shri Ravi D Kadabi,
S/o.late Shri Dhanpal D Kadabi,
Age: 49 years,
R/at No.30/1, 'Rathnatraya',
Palace Cross Road,
Bangalore - 560 020.
(By Sri.N.Jagadish Baliga, Adv.)
v.
Defendant:- Shri M.Munikrishnappa,
S/o.Shri Marishamappa,
'Sirigandha', No.26/2,
1st Main Road,
(Near Bethesda School),
Kengeri Satellite Town,
Bangalore - 560 060.
(By Sri.Ganesh Bhat.Y.H., Adv.)
Date of institution of the suit : 24.02.2015
Nature of the suit : Recovery of Money
Date of commencement of : 18.02.2017
Recording of the evidence
Judgement
O.S.No.1827/2015
Date on which the Judgment : 23.07.2018
was pronounced
Total Duration : Years Months Days
03 03 29
(P.SRINIVASA)
XLII ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
JUDGEMENT
The plaintiff has filed the above suit for recovery of money and costs.
2. The plaintiff's case in brief as under:-
The defendant is the absolute owner of the property bearing site No.59, situated at Valagerahalli Village, Kengeri Hobli, Bengaluru South Taluk. The defendant sold the said property to the plaintiff and his wife for valuable consideration and executed registered Sale Deed dated 13.04.2011 in their favour. Later, the plaintiff came to know that layout formed by the defendant including the site no.59 was acquired by BDA and there are litigations pending before the court. Therefore, the plaintiff approached the defendant and expressed his displeasure over the property transaction and the defendant suggested that if the plaintiff is not interested in the property, the defendant is willing to purchase the said property. Hence, the plaintiff sold O.S.No.1827/2015 the property to the defendant for sale consideration of Rs.18,00,000/- on 21.12.2013 and executed registered Sale Deed in favour of the defendant herein. After deducting Rs.1,00,000/- towards registration and incidental charges, the defendant issued 5 cheques for Rs.17,00,000/- drawn on Vijaya Bank, Kengeri Satellite Town Branch towards the above said transaction namely, cheque bearing No.412730 dated 10.02.2014 for Rs.50,000/-, cheque bearing No.412726 dated 05.04.2014 for Rs.5,00,000/-, cheque bearing No.412727 dated 10.04.2014 for Rs.5,00,000/-, cheque bearing No.412728 dated 15.04.2014 for Rs.5,00,000/-, cheque bearing No.412731 dated 10.04.2013 for Rs.1,50,000/-. The defendant had issued above said post dated cheques towards total sale consideration but, in the Sale Deed dated 21.12.2013, the defendant has mentioned that payment of sale consideration is made by way of cash. Since the property was under litigation the plaintiff agreed for all demands of the defendant. On verification, the plaintiff came to know that one cheque bearing No.412731 dated 10.04.2013, for Rs.1,50,000/-, was issued by the defendant, by wrongly mentioning the year in the cheque as 2013 instead of 2014. Immediately, the plaintiff approached the defendant for necessary corrections in the cheque but, the defendant refused to correct the same but, admitted the liability and promised to pay the amount covered O.S.No.1827/2015 under the cheque. The defendant failed to comply with plaintiff's demands. Hence, the plaintiff sent SMS to the defendant to rectify the year in the said cheque but, the defendant has not responded to plaintiff's demand. On 18.12.0214, the plaintiff issued legal notice to the defendant demanding payment of amount of Rs.1,50,000/- covered under the said cheque. After service of said notice, the defendant has issued untenable reply to the plaintiff. The plaintiff could not present the said cheque for collection and presented the remaining cheques for encashment and same were returned as unpaid. Hence, the plaintiff has filed criminal complaint under Section 138 of N.I.Act against the defendant with respect to other cheques that were dishonoured by the bank. The defendant is liable to pay Rs.1,50,000/- together with interest at the rate of 18% p.a. from the date of transaction till realization. Hence, the plaintiff has filed the above suit.
3. In response to the suit summons, the defendant has appeared before the court through his counsel and has filed the written statement contending that plaintiff has suppressed the material facts before this court hence, suit is liable to be dismissed. Further, the defendant has contended that plaintiff has not added his wife as a party hence, suit is bad for non- joinder of necessary party and liable for dismissal. The defendant O.S.No.1827/2015 has admitted that property bearing site No.59 originally belonged to him and it was jointly purchased by the plaintiff and his wife on 13.04.2011 for Rs.9,60,000/- vide., registered Sale Deed dated 13.04.2011. Subsequently, the plaintiff and his wife who were in need of funds and family necessity sold the said property to the defendant vide., registered Sale Deed dated 21.12.2013. The plaintiff and his wife have acknowledged receipt of sale consideration amount of Rs.18,00,000/- by way of cash in the presence of the witnesses in the said Sale Deed. The defendant has denied the averment that layout formed by him and property bearing site no.59 were acquired by BDA and there were litigations pending in the court during the relevant period. The defendant has denied the averment that the plaintiff did not want to have property which is under litigation and wanted to sell the property and agreed to defendant's demands and executed Sale Deed. The defendant has denied the averment that he had issued five cheques for Rs.17,00,000/- by deducting Rs.1,00,000/- towards registration and incidental expenses. The defendant has denied the averment that in the cheque bearing No.412731 year is mentioned as 2013 instead of 2014 and the plaintiff immediately approached the defendant and requested the defendant to rectify the said mistake. The defendant has denied the averment that he had admitted his liability through O.S.No.1827/2015 SMS. The defendant has denied that he is liable to pay Rs.1,50,000/- along with interest at the rate of 18% p.a. to the plaintiff. There is no cause of action to file the above suit. Hence, prayed that suit may be dismissed with costs.
4. On the basis of above pleadings, below mentioned issues arise for consideration:-
ISSUES
1. Whether plaintiff proves that defendant is due in a sum of Rs.1,50,000/- towards sale transaction as claimed in para-3 of the plaint?
2. Whether defendant proves that suit is bad for non-
joinder of necessary parties?
3. Whether plaintiff is entitled for interest? If so, at what rate?
4. Whether plaintiff is entitled for the relief sought for?
5. What order /decree?
5. To prove the case of the plaintiff, the plaintiff examined himself as PW-1 and got marked Ex.P1 to P11. The defendant examined himself as DW-1 and got marked Ex.D1.
6. Heard the arguments. The learned counsel for the defendant has relied upon the following citations:
O.S.No.1827/2015
1. (2009) 12 Supreme Court Cases 101, in the case of Vishwanath Bapurao Sabale v. Salinibai Nagappa Sabale and others.
2. LAWS (KAR) 2016 4 page 85, in the case of Pramada v. Vijaykumar.
3. (2015) 7 Supreme Court Cases 178, in the case of Tomaso Bruno and another v.
State of Uttar Pradesh.
4. (2014) 4 KCCR 3833, in the case of Raju and others v. Baburao and others.
7. My findings on the above said issues are as follows:-
Issue No.1:- In the Negative.
Issue No.2:- In the Affirmative.
Issue No.3:- In the Negative.
Issue No.4:- In the Negative.
Issue No.5:- As per final order.
for the following:-
REASONS
8. Issue Nos.1 to 4:- These issues are taken up together for consideration to avoid repetition of facts, evidence and convenience.
PW-1 in his evidence has stated that originally the defendant was the absolute owner of the property bearing site no.59 and the defendant sold the same to the plaintiff and his wife and plaintiff and his wife purchased the said property vide., registered Sale Deed dated 13.04.2011. In support of the same, O.S.No.1827/2015 the plaintiff has produced the Sale Deed dated 13.04.2011 at Ex.P2. From the recitals of Ex.P2, it clearly goes to show that the defendant has sold the property bearing site no.59 to the plaintiff and his wife for valuable consideration of Rs.9,60,000/-. It is pertinent to note that, the defendant in his written statement admits that property bearing site no.59 originally belonged to him and he had sold the same in favour of plaintiff and his wife as per Ex.P2. There is no dispute regarding execution of Ex.P2 by the defendant in favour of plaintiff and his wife.
9. Pw-1 in his evidence has stated that the plaintiff has paid the market value but, in the Sale Deed i.e., Ex.P2, lesser sale consideration amount is mentioned. It is pertinent to note that, there is no pleading by the plaintiff that he has paid more amount to the defendant and lesser amount is shown in the Sale Deed. Any amount of evidence without pleadings will not serve any purpose. Hence, contention of the plaintiff that market value was paid and lesser value was shown in the Sale Deed cannot be accepted.
10. PW-1 in his evidence has stated that he came to know that layout formed by the defendant including the property bearing site no.59 was acquired by BDA and there are litigations pending in the court in respect of the said property. It is pertinent to note that, DW-1 in his cross-examination admits that O.S.No.1827/2015 he had formed 70 sites in Sy.No.59, measuring 2½ acres and in the year 2000, BDA had acquired the entire extent of 2½ acres. Further, he had filed writ petition before the Hon'ble High Court of Karnataka and in the said writ petition, Hon'ble High Court of Karnataka de-notified the said acquisition proceedings. Further, stated that BDA allottees had field writ petition against de-notification order and as a result, de-notification was withdrawn by the Government and the defendant filed writ petition challenging the said order of the Government. From the above evidence of the defendant, it is clear that there are disputes with respect to property between defendant and BDA. Therefore, contention of the plaintiff that layout formed by the defendant and property purchased by the plaintiff was under
litigation has to be accepted.
11. PW-1 in his evidence has stated that he approached the defendant and expressed his displeasure over suppression of pending litigation at the time of sale transaction and the defendant expressed his desire to re-purchase the said property by paying consideration amount received by him. The plaintiff sold the property and re-conveyed the said property to the defendant under registered Sale Deed dated 21.12.2013 for total sale consideration of Rs.18,00,000/-. Out of total sale consideration, Rs.1,00,000/- was deducted towards registration O.S.No.1827/2015 and incidental expenses and the defendant was liable to pay Rs.17,00,000/- to the plaintiff and accordingly, the defendant issued five post dated cheques namely, cheque bearing No.412730 dated 10.02.2014 for Rs.50,000/-, cheque bearing No.412726 dated 05.04.2014 for Rs.5,00,000/-, cheque bearing No.412727 dated 10.04.2014 for Rs.5,00,000/-, cheque bearing No.412728 dated 15.04.2014 for Rs.5,00,000/-, cheque bearing No.412731 dated 10.04.2013 for Rs.1,50,000/-. Further, PW-1 has stated that on verification the plaintiff came to know that in the cheque bearing No.412731 for Rs.1,50,000/-, year is mentioned as 2013 instead of 2014 and the plaintiff immediately approached the defendant for rectification, the defendant refused to correct the year but, admitted his liability. The plaintiff sent SMS to the defendant and in reply the defendant sent SMS admitting his liability and promised to pay the amount covered under the cheque. DW-1 in his evidence has denied that he had issued five cheques towards sale consideration as contended by plaintiff and also denied that he had sent SMS admitting his liability to the plaintiff. DW-1 in his evidence has stated that he has paid Rs.18,00,000/- to the plaintiff by way of cash. The plaintiff has produced original cheque bearing No.412731 dated 10.04.2013 for Rs.1,50,000/- at Ex.P1, certified copy of Sale Deed at Ex.P3, copy of SMS at Ex.P4 and call details at Ex.P5.
O.S.No.1827/2015 Further, PW-1 has produced legal notice at Ex.P6 and defendant's reply at Ex.P7. The plaintiff says that sale consideration was not paid by the defendant and the defendant issued five cheques towards payment of sale consideration. Per contra, the defendant has stated that he has paid the sale consideration by way of cash in the presence of the witnesses. Ex.P3 is the Sale Deed executed by plaintiff and his wife in favour of defendant herein. Execution of Ex.P3 by plaintiff and his wife in favour of defendant is admitted by the plaintiff herein. Therefore, this court can rely upon Ex.P3. From the recitals of Ex.P3 i.e., Sale Deed, it discloses that the defendant has paid the sale consideration Rs.18,00,000/- by way of cash to the plaintiff and his wife herein in the presence of witnesses. Further, the plaintiff and his wife have acknowledged the receipt of said sale consideration of Rs.18,00,000/- from the defendant herein. The onus is on the plaintiff to rebut the recitals mentioned in the Sale Deed. The plaintiff has not produced any material evidence to rebut the same. The plaintiff has failed to examine the attesting witnesses before this court to show that sale consideration of Rs.18,00,000/- by way of cash was not paid to him. The plaintiff has also failed to examine his wife as witness before this court. Therefore, adverse inference has to be drawn against the plaintiff. Except self serving statement by the plaintiff, the O.S.No.1827/2015 plaintiff has not produced any material evidence to prove the above said contention. The plaintiff has produced copies of SMS messages and call records before this court at Ex.P4 and P5. In the said SMS messages, the defendant herein has not specifically acknowledged the liability of Rs.17,00,000/- towards sale consideration. Therefore, said SMS messages and call details produced by the plaintiff are not helpful to him. PW-1 in his evidence has stated that in Ex.P1 i.e., cheque, year is wrongly mentioned as 2013 instead of 2014. The defendant in his evidence has stated that he had issued cheque i.e., Ex.P1 to the plaintiff prior to execution of the Sale Deed by way of security and the plaintiff herein had failed to return the said cheque to him. PW-1 in his cross-examination states that he has obtained B.E. Engineering Degree and his wife has obtained B.Sc. Degree. From the above evidence, it is clear that plaintiff and his wife are well educated and have worldly knowledge. Therefore, contention of the plaintiff that later he came to know that year is wrongly mentioned as 2013 instead of 2014 cannot be accepted. PW-1 in his evidence has stated that he has issued legal notice as per Ex.P6, calling upon the defendant to pay the part of sale consideration amount i.e., Rs.1,50,000/-. It is pertinent to note that, the defendant has issued reply to the plaintiff as per Ex.P7 and has denied the liability and has stated that the said cheque O.S.No.1827/2015 was issued as security. The plaintiff has failed to prove that Ex.P1 was issued towards payment of sale consideration. Therefore, Ex.P6 i.e., notice is not helpful to the plaintiff herein.
12. DW-1 in his evidence has stated that plaintiff's wife is one of the co-vendor and the plaintiff has not impleaded his wife in this case hence, suit is bad for non-joinder of necessary party. From Ex.P3, it goes to show that plaintiff and his wife have jointly sold the suit schedule property in favour of the defendant herein and executed Sale Deed jointly in favour of the defendant. Plaintiff's wife was co-owner of the property and she has executed the sale deed along with plaintiff herein. Therefore, Plaintiff's wife is a necessary party and in her absence above suit cannot be adjudicated effectively. In the plaint, the plaintiff has not impleaded his wife as a party. Therefore, suit is not maintainable and suit is bad for non-joinder of necessary party.
13. The learned counsel for the defendant has relied upon the following citations:
1. (2009) 12 Supreme Court Cases 101, in the case of Vishwanath Bapurao Sabale v.
Salinibai Nagappa Sabale and others.
2. LAWS (KAR) 2016 4 page 85, in the case of Pramada v. Vijaykumar.
3. (2015) 7 Supreme Court Cases 178, in the case of Tomaso Bruno and another v. State of Uttar Pradesh.
O.S.No.1827/2015
4. (2014) 4 KCCR 3833, in the case of Raju and others v. Baburao and others.
The above said citations are not applicable to the facts and circumstances of the case. The plaintiff has claimed interest at the rate of 18%. The plaintiff has not produced any documentary evidnece to show that defendant had agreed to pay interest at the rate of 18% p.a. The plaintiff has failed to prove that defendant is liable to pay Rs.1,50,000/-. Hence, plaintiff is not entitle to any interest or relief. In the light of the above discussion, I answer Issue Nos.1, 3 and 4 in the Negative and Issue No.2 in the affirmative.
Issue No.5:-
In view of my above discussion, I proceed to pass the following:
ORDER Suit filed by the plaintiff is dismissed with costs. 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 23rd day of July, 2018) (P.SRINIVASA) XLII Addl., City Civil & Sessions Judge, Bengaluru.
O.S.No.1827/2015 ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side:
PW.1 - Sri.Ravi D Kadabi
(b) Defendant's side:
DW.1 - Sri.Munikrishnappa II. List of documents exhibited on behalf of:
(a) Plaintiff's side:
Ex.P1 : Cheque bearing No.412731 dated
20.04.2013
Ex.P1(a) : Signature of defendant
Ex.P2 : Certified copy of Sale Deed dated
13.04.2011
Ex.P3 : Certified copy of Sale Deed dated
21.12.2013
Ex.P4 : Copy of SMS along with Certificate
under Section 65-B
Ex.P5 : Mobile Statements
Ex.P6 : Legal Notice dated 18.12.2014
Ex.P7 : Reply Notice dated 06.01.2015
Ex.P8 : Certified copy of Order passed in
W.P.No.24393/2013(LA-BDA)
connected with
W.P.No.50415/2012(LA-BDA) and
W.P.No.22779/2013 (LA-BDA)
Ex.P9 : Certified copy of Sale Deed dated
13.04.2011
Ex.P10 : Certified copy of Sale Deed dated
13.04.2011
Ex.P11 : Certified copy of Sale Deed dated
13.04.2011
O.S.No.1827/2015
(b) Defendant's side:
Ex.D1 : Certified copy of Common Judgment
passed in C.C.Nos.15703, 23587,
25062 & 25455/2014
XLII ADDL., CITY CIVIL & SESSIONS JUDGE
BENGALURU.
Digitally signed by
SRINIVASA
DN:
cn=SRINIVASA,ou=HIGH
COURT OF
SRINIVASA KARNATAKA,o=GOVERNM
ENT OF
KARNATAKA,st=Karnataka,
c=IN
Date: 2018.07.25 10:30:03
IST