Bangalore District Court
On 23.01.2014 And On That Day The 1 St vs The Plaintiff Has Paid Rs.17 on 19 July, 2021
O.S.No. 4059/2014
1
IN THE COURT OF THE XXXIV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU
Dated this the 19th day of July, 2021
Present :
Sri. G.Raghavendra, B.Sc., LL.B.,
XXXIV Addl. City Civil & Sessions Judge,
Bengaluru.
O.S. No.4059/2014
Between:
Sri. Yeshvanth,
S/o Sri. K.Lakshmipathy,
Aged about 30 years,
R/at No.25/1, 8th Main Road,
Dathatreyanagar,
Hosakerehalli,
BSK 3rd Stage,
Bangalore - 560 085. .. PLAINTIFF
(By: Sri.S.K. Shetty, Advocate)
And
1. Mr. D.S. Joseph,
S/o Sri. Samuel
Major,
C/o Anitha Joseph,
No.64, 1st Floor, 2nd Cross,
1st Main, Near Parivar Avenue,
Kammanahalli Main Road,
Kacharakanahalli Post,
Bangalore - 560 084.
Also Residing at
No.103/4, 2nd Cross,
Ottiapakkam, Tambaram Post,
Chennai - 600 071.
O.S.No. 4059/2014
2
2. State Bank of India
Dooravaninagar Branch,
ITI Campus, Dooravaninagar,
Bangalore - 560 016
Rep. By Authorized Officer .. DEFENDANTS
(Ex parte)
Date of Institution of the suit : 05/06/2014
Nature of the suit : Specific Performance
Date of commencement of : 14.10.2019
recording of evidence.
Date on which the judgment : 19.07.2021
was pronounced.
Total Duration Years Month Days
07 01 14
XXXIV Addl. City Civil & Sessions Judge
Bengaluru.
JUDGMENT
This suit under Order VII Rule 1 and 2 read with Section 26 of Code of Civil procedure, 1908 (CPC) is filed by the plaintiff for a judgment and decree against the defendant No.1 directing him to execute the registered Sale Deed in respect of the schedule property, on failure to order for the registration of the sale deed O.S.No. 4059/2014 3 through the agency of the Court in accordance with law, for permanent injunction restraining the defendants, their agents, representatives, or any person or persons claiming through or under them from alienating the suit schedule property and such other suitable orders deems fit to grant in the circumstances of the case with cost of the suit.
2. The brief facts of the case of the plaintiff is as under:
The 1st defendant is the absolute owner of the suit schedule property. The 1st defendant approached the plaintiff and persuaded him to purchase the schedule property and accordingly entered into an Agreement of Sale with the plaintiff on 18.08.2011 agreeing to sell the same and also agreed to furnish all documents pertaining to the schedule property. Both the parties fixed the sale consideration amount at Rs.42,50,000/. The 1 st defendant has received an advance amount of Rs.5,00,000/ (Rs. Five lakh only) on 18.08.2011 and has agreed to complete the sale transaction within 3 months from the date of agreement of sale.
On 7.10.2013 the 1st defendant requested for additional amount. The plaintiff has paid the amount of Rs.17,70,000/ on O.S.No. 4059/2014 4 07.10.2013 and agreement time was extended for further period of 15 days from the date of the renewal agreement dated 07.10.2013. There after also, the 1st defendant failed and neglected to furnish documents and has not come forward to receive the balance of sale consideration and execute the sale deed. In spite of repeated requests by the plaintiff, the 1st defendant failed to act as per the request made.
After some time, the plaintiff has learnt that the 1 st defendant has taken a housing loan from the 2 nd defendant and entire documents are pledged with the 2nd respondent, the Bank also issued notice to the 1 st defendant under Section 13(2) of SARFAESI Act, 2002. Plaintiff requested the 1 st Defendant to clear the Bank loan and execute the sale deed in favour of Plaintiff and also requested that if 1st defendant registers the sale deed in favour of plaintiff, plaintiff will clear the loan account. But the 1 st defendant did not do so. Again on 23.01.2014, 1 st defendant has received Rs.1,00,000/ through DD and Rs.70,000/ cash. In total the 1st defendant has received Rs.1,70,000/ from the plaintiff on 23.01.2014 and on that day the 1 st defendant stated that he want to pay the amount to the bank. In total the plaintiff O.S.No. 4059/2014 5 had paid a sum of Rs.19,40,000/ (Rs. Nineteen Lakh Forty Thousand only). The 2nd defendant bank has issued the public notice for the sale of schedule property. The Plaintiff has challenged the sale notice before the Debt Recovery Tribunal in I.R. No.1073/2014 and Hon'ble Judge directed the plaintiff to deposit the remaining amount to loan account of the 1 st defendant. The Plaintiff has paid Rs.17,00,000/ (Rs. Seventeen Lakh only) to 1st defendant loan account. The Plaintiff till today has paid the amount of Rs.36,40,000/ towards the sale transaction. That the plaintiff had always been ready and willing to perform his part of the contract by paying the balance sale consideration amount and is always ready and willing to pay the balance sale amount to the defendant and to get the sale deed registered in his favour in respect of the suit schedule property.
The Plaintiff has issued legal notice dated 30.04.2014 calling upon the 1st defendant to come and execute the sale deed within 15 days from the date of receipt of the legal notice, through RPAD. The 1st defendant has not received the notice.
O.S.No. 4059/2014 6
3. After the institution of the suit, suit summons was issued and served to the defendants. Though summons was duly served on the defendants, they failed to appear before the court. Hence, they are placed ex parte.
4. In order to prove the case, the Plaintiff examined himself as PW.1 and marked 16 documents as Ex.P1 to Ex.P16.
5. Heard the arguments of the learned counsel for the plaintiff.
6. On the basis of the plaint averments, evidence and on submission of the counsel for the plaintiff, the following points arose for my consideration.
POINTS
1) Whether the Plaintiff is entitled for the relief as sought for?
2) What Order or Decree?
7. My answer to the above points for consideration are as under:
Point No.1: In the Affirmative.
Point No.2: As per final order for the
following:
O.S.No. 4059/2014
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REASONS
8. Point No.1: To prove the case, the Plaintiff examined himself as P.W.1 and in his examination in chief evidence affidavits filed as per order XVIII Rule 4 of CPC has reiterated the plaint averments.
9. The plaintiff has relied on the following documents to prove his case.
Ex.P1 is original agreement of sale executed by first defendant in favour of plaintiff in respect of suit schedule property. By perusal of recitals of Ex.P1, it can be seen that first defendant has agreed to sell the suit schedule property for Rs.42,50,000/ by receiving Rs.5 lakh as advance and further agreed to execute registered sale deed within three months from the date of agreement by receiving balance sale consideration of amount Rs.37,50,000/.
Ex.P2 is renewal sale agreement dated 7.10.2013 entered into between first defendant and plaintiff. In Ex.P2, defendant No.1 has agreed that he had received Rs.13,70,000/ and will complete transaction within 15 days from the date of said agreement.
O.S.No. 4059/2014 8 Ex.P3 and P4 are copies of legal notice dated 30.4.2014 issued by Plaintiff through his Advocate to defendant no.1 stating that first defendant had already received Rs.19,40,000/ from plaintiff and called upon first defendant to receive the remaining amount and to execute the registered sale deed within 15 days from the receipt of legal notice.
Ex.P13 is public notice for sale of suit schedule property by defendant No.2.
Ex.P14 is certified copy of order sheets, application under Section 17(1) and 17(3) of Securitization and Reconstruction of Financial Assets Enforcement of Security Interest Act, application under Section 22 (2) (H) of Debt Recovery of debts due to Banks and Financial Institution Act, 1993 etc. in IR No.1073/2014 on the file of Debt Recovery Tribunal, Bengaluru. By perusal of order sheet in IR No.1073/2014 dated 30.6.2014, it can be seen that Advocate for R1 of said petition (Defendant No.2 of this suit) has submitted that entire loan amount has been paid by petitioner(Plaintiff) and Counsel for petitioner, and Counsel for R2(Defendant No.1 of this suit) conceded to dispose of the said IR O.S.No. 4059/2014 9 and DRT, Bengaluru, has disposed of said IR subject to result of original suit bearing FR No.4042/2014 (This suit).
10. The plaint averments and oral and documentary evidence produced by the plaintiff substantiate the case of the plaintiff. The pleadings and evidence of plaintiff remained unrebutted, unchallenged and uncontroverted. In Ex.P1 it was agreed that if the Vendor fails to execute proper conveyance deed/s by receiving the balance sale consideration, then the Vendor is liable to pay back the advance amount received by him as damages. But, the defendant No.1 who can say how the plaintiff is not entitled for the reliefs as sought for in the plaint though served with suit summons did not appear and contested the case of the plaintiff. I also do not see any reason to disbelieve the evidence of the PW.1.
11. Point No.2: In view of the answer, I arrived to point No.1, I proceed to pass the following : O.S.No. 4059/2014 10 ORDER This suit under Order VII Rule 1 and 2 read with Section 26 of Code of Civil procedure, 1908 (CPC) filed by the plaintiff is decreed with costs.
The plaintiff shall pay balance sale consideration if any after calculating amount paid to defendant No.2 in IR No.1073/2014 on the file of Debt Recovery Tribunal, Bengaluru, to the first defendant within two months from the date of this order and first defendant is directed to receive the said sum and execute the registered Sale Deed in respect of suit schedule property in favour of plaintiff.
Draw decree accordingly.
(Dictated to the Judgment Writer directly on computer, typed by him, corrected, signed and pronounced in the open court on this the 19 th day of July, 2021).
(G. RAGHAVENDRA) XXXIV Addl. City Civil & Sessions Judge Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PLAINTIFF:
P.W.1: Sri. Yeshwanth.
O.S.No. 4059/2014
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LIST OF EXHIBITS MARKED ON BEHALF OF PLAINTIFF:
Ex.P1: Original Agreement of Sale dated 18.08.2011. Ex.P2: Renewal Sale Agreement dated 07.10.2013.
Ex.P3 : Legal Notice dated 30.04.2014.
Ex.P4 : Postal Cover,Returned Acknowledgment & Legal
Notice.
Ex.P5 : Encumbrance Certificate
Ex.P6 : Order passed by District Registrar & Deputy
Commissioner of Stamps.
Ex.P7 & 8 :Bank Challan / Account Voucher. Ex.P9: Receipt issued by State Bank of Mysore. Ex.P10: Request letter dated 25.4.2016. Ex.P11: Letter dated 31.8.2016 issued by State Bank of Mysore Ex.P12: Letter dated 27.6.2016 issued by the Bank. Ex.P13: Public Sale Notice issued by State Bank of Mysore. Ex.P14: C.C. of Order sheets in IR 1073/14 before DRT, Bangalore.
Ex.P15: C.C. of sale deed dated 6.1.2005 Ex.P16: Letter dated 25.11.2019 issued by State Bank of Mysore LIST OF WITNESS EXAMINED ON BEHALF OF DEFENDANTS:
NIL O.S.No. 4059/2014 12 LIST OF EXHIBITS MARKED ON BEHALF OF DEFENDANTS: NIL XXXIV Addl. City Civil & Sessions Judge Bengaluru.