Bangalore District Court
Anuradha Subramaniam vs Kishore S on 19 March, 2025
1 O.S.No.437/2023
KABC010015122023
IN THE COURT OF I ADDITIONAL CITY CIVIL &
SESSIONS JUDGE AT BENGALURU ( CCH.No.2)
PRESENT :- Sri. B.P.Devamane, LL.M.
I Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 19th day of March 2025.
O.S. No.437 / 2023
PLAINTIFF:- Smt. Anuradha Subramaniam,
Aged about 46 years,
W/o. Subramaniam Vairavan,
R/at NO.204-A, Royal Residency,
No.8, Brunton Road, Museum Road,
Bengaluru-560 025.
(By Sri.Vishnu Hegde, Adv.)
- VS -
DEFENDANTS:- 1. Sri. S. Kishore,
Aged about 51 years,
S/o. H.Satyanarayan,
R/at No.504, 6th Cross, 6th Main,
S.T.Bed, Koramangala,
Bengaluru-560 034.
Also having address at
Hotel Guest - Koshre S,
Royal Orchid Central, Manipal Central,
47/1, Dickenson Road, Manipal Centre,
Bengaluru-560 042.
2 O.S.No.437/2023
[2. The Chief Manager,
Karnataka Bank Limited,
Assets Recovery Management Branch,
1st Floor, FKCCI Building, K.G.Road,
Bengaluru-560 009]
[Deleted as per order dated 25.07.2024]
3. M/s. Meridian Exports Pvt. Ltd.,
A Registered Company,
Rep. By its Director,
Sri. Kishore S,
No.511, Barton Center, M.G.Road,
Bengaluru-560 001.
(By Sri.Badri Vishal, Adv. for D1 & D3)
***
Date of Institution of the suit 16.01.2023.
Nature of the Suit (suit for pronote,
Suit for declaration & possession, Specific Performance.
Suit for injunction, etc.):
Date of the commencement of 02.08.2024.
recording of the Evidence:
Date on which the Judgment was 19.03.2025.
pronounced:
Year/s Month/s Day/s
Total duration:
2 2 3
(B.P.Devamane)
I Addl. City Civil & Sessions Judge,
Bengaluru.
3 O.S.No.437/2023
JUDGMENT
The plaintiff has filed this suit for specific performance of agreement of sale.
2. Description of the suit schedule property:
All piece and parcel of property bearing Municipal No.504, site No.504 situated at 6th Cross, 6th Main, S.T.Bed, Koramangala, New Egipura Ward No.148, Bengaluru, PID No.67-76-504, measuring east to west 15.25 meters and north to south 24 meters in all 366 sq. mters or 3939.624 sq. ft. consisting of ground, first, second and third floors bounded east - road, west - property bearing No.505, north - shop sites and south - road.
3. Case of the plaintiff in brief is that, defendant No.1 is the owner of the suit schedule property, which was acquired by him through auction sale conducted by BDA on 22.10.1993. On 27.11.1993, possession certificate was issued and on 28.11.1996, registered sale deed came to be executed in favour of the defendant No.1 by the BDA. The defendant No.1 who is the owner of the suit schedule property approached plaintiff for sale of the suit schedule for consideration and represented before the plaintiff and her husband that, he is having right, title and possession over the suit schedule property. Believing the promises of defendant No.1, the plaintiff agreed to purchase the suit schedule property from the defendant No.1 subject to immediate clearance of the lien over the schedule property by the defendant No.1 in the loan account of the 3rd defendant. Accordingly, on 10.02.2022, defendant No.1 has executed registered agreement of sale, promising to convey the suit 4 O.S.No.437/2023 schedule property in favour of plaintiff for agreed sale consideration of Rs.4,30,00,000/- to the entire suit schedule property including building thereon. Plaintiff has issued cheques as well as through RTGS payments to the tune of Rs.1,57,06,000/- to the defendant No.1 for the purpose of sale of the suit schedule property in favour of plaintiff. After verification of account, even after issuing 3 cheques, defendant No.1 has not presented the said cheques totaling to Rs.17,00,000/- for the reasons known to the defendant No.1. Plaintiff is always ready and willing to perform her part of contract by paying balance sale consideration of Rs.2,89,94,000/- subject to the terms and conditions stated in the agreement of sale dated 10.02.2022.
3a) The defendant No.1 promised to clear the loan since there is mortgage of suit schedule property in favour of defendant No.2 M/s.Karnataka Bank Ltd., Overseas Branch. Plaintiff met with defendant No.1 along with well wishers from both sides and requested to discharge mortgage as well as to receive the balance sale consideration by executing the registered sale deed in favour of the plaintiff. During the 1st week of March 2022, defendant No.1 promised that, he will take immediate steps to clear the necessary dues of defendant No.2 bank since he has got OTS scheme and intimate the plaintiff after immediate discharge of mortgage of the suit schedule property. The plaintiff and her husband also requested several times even before 31.03.2022 and thereafter to complete agreed sale transactions. Even after receiving huge amount, defendant No.1 deliberately failed to clear the outstanding due amount by discharging mortgage over the suit schedule property. Thereafter, plaintiff decided to approach defendant No.2 Karnataka 5 O.S.No.437/2023 Bank relating to discharge of the suit schedule property as the suit schedule property still under mortgage in favour of defendant No.2. Plaintiff recently found that, defendant No.2 proceeded to e-auction the suit schedule property on 18.01.2023. As per the auction notice dated 31.12.2022, a sum of Rs.2,56,18,790/- payable by defendant Nos.1 and 3 to defendant No.2. Defendant No.2 has taken possession of the suit schedule property on 02.12.2021. Hence, the plaintiff has filed this suit immediately.
3b) The plaintiff is always ready and willing to perform her part of contract. It is found that, the defendant No.1 is not in position to clear outstanding dues of defendant No.2 bank. Therefore, plaintiff has also made lawful proposal and requested defendant No.2 to receive the payable due amount of 2 nd defendant and to issue sale certificate / registered sale deed in favour of the plaintiff. Thus, plaintiff also expressed her readiness and willingness to deposit the balance sale consideration amount in the defendant No.2 bank to avoid further complications and multiplicity of proceedings. On 19.10.2022, the plaintiff issued legal notice to the defendants. Defendant No.1 received notice and issued frivolous and untenable reply with malafide intention to knock away huge investment of the plaintiff. The defendant No.1 has no right to cancel the agreement of sale unilaterally and the said agreement of sale dated 10.02.2022 is valid till today. Hence, the plaintiff has filed this suit for specific performance, mesne profits and damages.
4. On service of summons, the defendant Nos.1 and 3 appeared through their counsel and filed common written statement denying the case of the plaintiff. It is contended that, the plaintiff has not approached the Court with clean hands and suppressed the 6 O.S.No.437/2023 material facts. It is admitted that, the defendant No.1 is the owner of the suit schedule property. It is also admitted that, he acquired the suit schedule property under auction sale from BDA as contended in the plaint. It is denied that, defendant No.1 approached the plaintiff and plaintiff agreed to purchase the suit schedule property and defendant No.1 executed agreement of sale agreeing to sell the suit schedule property.
4a) It is contended that, husband of the plaintiff by name Sri.Subramaniam Vairavan is his classmate and family friend since 1989. He is into money lending business without holding valid money lender's licence and he has lent crores of rupees to many individuals in Bengaluru. On the instructions of said Sri.Subramaniam Vairavan, plaintiff had paid a sum of Rs.1,12,06,000/- over a period of time between 25.03.2021 to 10.02.2022 to the defendant No.1. The defendant No.1 promised to repay the said loan amount within a period of 3 years from the date of last loan received by him. At the behest of said Sri.Subramaniam Vairavan, the defendant No.1 executed agreement of sale dated 10.02.2022 as a collateral security for the loan availed by him from the plaintiff and her husband. Defendant No.1 never intended to sell the suit schedule property in favour of the plaintiff and said agreement of sale termed was in fact a loan agreement between plaintiff and defendant No.1. At the time of executing agreement of sale, defendant No.1 handed over 8 cheques with no date and name on them, but however, amounts have been filled in the said cheques totally amounting to Rs.1,54,00,000/- as security for repayment of loan. The details of 8 cheques is as under:
Sl.No. Cheque No. Amount in Rs. Bank Branch
1. 188536 42,00,000 State Bank of India St. Marks Road
Bengaluru.
7 O.S.No.437/2023
2. 188545 3,00,000 State Bank of India St. Marks Road
Bengaluru.
3. 188563 25,00,000 State Bank of India St. Marks Road
Bengaluru.
4. 188573 5,00,000 State Bank of India St. Marks Road
Bengaluru.
5. 188574 5,00,000 State Bank of India St. Marks Road
Bengaluru.
6. 188575 4,00,000 State Bank of India St. Marks Road
Bengaluru.
7. 188564 40,00,000 State Bank of India St. Marks Road
Bengaluru.
8. 188565 30,00,000 State Bank of India St. Marks Road
Bengaluru.
4b) The plaintiff was also aware that, Karnataka Bank Ltd., / defendant No.2 had initiated proceedings for recovery of loan from defendant No.1 & 3 on the suit schedule property through public auction as per the provisions of SARFAESI Act. In the agreement of sale dated 10.02.2022, consideration amount is shown as Rs.4,30,00,000/- and even the market value of the suit schedule property is more than Rs.9,50,00,000/- and therefore, by no stretch of imagination, it can be concluded that, these defendants had agreed to sell the suit schedule property for mere sum of Rs.4,30,00,000/-, which is half of the market value of the suit schedule property. The reserve / base price of the suit property as per the sale notice of the suit schedule property dated 31.12.2022 issued by Karnataka Bank Limited is Rs.8,11,00,000/-, which clearly goes to show that the prevailing market value of the suit schedule property is more than the said reserve / base price.
4c) The contents of para-5 of the plaint that, this defendant No.1 has executed sale agreement agreeing to sell the suit schedule property for sale consideration of Rs.4,30,00,000/- is denied. It is 8 O.S.No.437/2023 also denied that, plaintiff has issued 3 cheques bearing Nos.000019, 000020, 000021 to the defendant No.1 and defendant No.1 has not presented said cheques for the reasons best known to him. Alleged agreement of sale dated 10.02.2022 is a loan agreement though it is styled as agreement of sale. In addition to the agreement of sale dated 10.02.2022, another memorandum of understanding dated 10.02.2022 was executed by the plaintiff in favour of the defendant No.1. As per memorandum of agreement, this alleged agreement of sale is only a document for security of the loan. It is denied that, 1 st defendant promised to discharge mortgage on the suit schedule property on or before 31.03.2022 and execute the sale deed.
4d) The defendant Nos.1 and 3 availed mortgage loan from Karnataka Bank / defendant No.2 for business commitments and since the amount could not be arranged to repay the loan, the said bank took possession of the suit schedule property through due process of law under SARFAESI Act on 02.12.2021. Thereafter, defendant No.1 approached said bank for settlement and said bank gave OTS offer of Rs.2,75,00,000/- and these defendants accepted the offer given by Karnataka Bank Limited. At that point of time, husband of the plaintiff upon coming to know the said fact, convinced defendant No.1 that, he would advance said loan at the rate of simple interest at 12% p.a. and defendant No.1 acted in good faith completely trusting the words of husband of the plaintiff and executed agreement of sale dated 10.02.2022 as security of the loan and later on, defendant No.1 came to know about the sinister designs and oblique motives of the husband of the plaintiff behind advancing loan to the defendant No.1 and intention of the plaintiff and her husband to knock of the suit schedule property under the 9 O.S.No.437/2023 guise of bailing out these defendants out of the loan availed from Katakana Bank Limited / defendant No.2.
4e) Plaintiff and her husband had advanced a sum of Rs.1,40,00,000/- out of promised amount of Rs.2,75,00,000/- and started pestering defendant No.1 to repay the loan amount advanced by the plaintiff and her husband before expiry of period of 3 years. As the defendant No.1 was going through financial crunch, he could not arrange for loan amount. Plaintiff and her husband resorted to illegal acts of making threatening phone calls through anti social and goonda elements and thereafter, plaintiff has filed this false and frivolous suit for specific performance by suppressing real facts. It is denied that, plaintiff is always ready and willing to perform her part of contract. It is further contended that, agreement of sale dated 10.02.2022 is captioned as agreement of sale, but it is nothing but a loan agreement for all practical purposes. It is denied that, plaintiff was ready and willing to deposit balance sale consideration amount with defendant No.2 bank.
4f) It is contended that, plaintiff filed IA No.2 under Sec.151 of CPC r/w Order 39 Rule 10 of CPC seeking permission of the Court to deposit an amount of Rs.2,56,18,791/- to the loan account of the 1st defendant, in 2nd defendant's bank. This Court allowed the said IA. Aggrieved by the same, defendant Nos.1 and 3 approached Hon'ble High Court in W.P.No.1837/2023. The Hon'ble High Court modified the order of this Court and disposed the writ petition. Plaintiff has filed false suit. On these grounds, the defendant Nos.1 and 3 prayed to dismiss the suit.
10 O.S.No.437/20235. Defendant No.2 Karnataka Bank filed written statement contending that, this defendant No.2 is not a party to the agreement of sale dated 10.02.2022 and it has been executed without the knowledge and consent of this defendant No.2 bank. Further, it is contended that, as per the order of the Hon'ble High Court in W.P.No.1837/2023 challenging the order of this Court on IA No.2, Hon'ble High Court has appropriated and adjusted the amounts in deposits to the pending dues and there is surplus balance amount of Rs.4,93,864/-. In lieu of compliance of order of the Hon'ble High Court dated 15.06.2023, entire outstanding liability of defendant No.3 with defendant No.2 has been cleared and loan account of defendant Nos.1 and 3 has been closed in the books of accounts maintained by defendant No.2 bank. Hence, relief sought against this defendant No.2 has become infructuous. Thereafter, as per the order of this Court dated 25.07.2024, this defendant No.2 has been deleted from this suit.
6. Heard arguments from both sides. Perused the materials on record.
7. Based on the pleadings, Court has framed following issues :-
ISSUES
1. Whether the plaintiff proves that, the defendant No.1 entered into agreement of sale dated 10.02.2022 for Rs.4,30,00,000/- in respect of the suit schedule properties by receiving Rs.1,57,06,000/- towards part sale consideration ?
2. Whether the plaintiff proves that, she was always ready and willing to perform her part of contract ?11 O.S.No.437/2023
3. Whether the defendant No.1 proves that, he has executed the agreement of sale dated 10.02.2022 for the security of the loan availed by him from the plaintiff ?
4. Whether the plaintiff is entitled for the reliefs as claimed ?
5. What order or decree ?
8. In order to prove the case, the plaintiff examined as PW.1 and got marked the documents at Ex.P.1 to Ex.P.24. On the other hand, the 1st defendant examined as DW.1 and got marked the documents at Ex.D.1 to Ex.D.11.
9. Heard arguments. Perused the materials on record.
10. My findings on the above issues are as under:-
Issue No.1, 2, 4 : In the Negative,
Issue No.3 : In the Affirmative,
Issue No.5 : As per the final order,
for the following:
REASONS
11. ISSUE Nos.1 to 3: All issues are interconnected with
each other; hence they are taken together for discussion in order to avoid repetition.
12. Plaintiff filed affidavit in lieu of her examination-in-chief reiterating the plaint averments and examined as PW.1. As per the case of the plaintiff, defendant No.1 is the absolute owner of the suit schedule property and he intended to sell the same and promising to sell the suit schedule property, executed agreement of sale as per 12 O.S.No.437/2023 Ex.P.1. Defendant No.1 admitted the execution of Ex.P.1 agreement of sale, but contended that, it is a security document for the loan availed by him from the plaintiff and it is not a genuine agreement of sale. As per the case of the defendant No.1, he availed loan from plaintiff and her husband, who is his classmate and family friend agreeing to repay the said loan within 3 years.
13. On perusal of the pleadings and materials available before the Court, it is admitted that, defendant No.1 is the owner of the suit schedule property. As per the plaintiff, Ex.P.1 is the agreement of sale and as per the defendant No.1 Ex.P.1 is a document for the security of the loan availed by him from the plaintiff.
14. Learned counsel for plaintiff argued that, admittedly, defendant No.1 is a businessman and he has executed this Ex.P.1 document, which is registered before the Sub-Registrar. He is knowing the consequences of that document, has executed in favour of the plaintiff. Further, Ex.D.7 memorandum of agreement relied by defendant No.1 is a created document, duty and penalty on the said document is not paid by the defendant No.1, hence, that document cannot be looked into. Defendant No.1 has admitted the execution of Ex.P.1 agreement of sale, hence, prayed to decree the suit. He has relied upon the following rulings:
1. AIR 2022 SC 1555 in the case of Kirpal Kaur and another Vs Ritesh and others.
2. (2012) 5 SCC 712 in the case of Narinderjit Singh Vs North Star Estate Promoters Limited.
3. (2019) 11 SCC 787 in the case of Sunkara Lakshminarasamma (Dead) by LRs, Vs Sagi Subba Raju and others.13 O.S.No.437/2023
4. Judgment passed by the Hon'ble High Court of Karnataka, Dharwad Bench in RFA No.100383/2017 dated 08.04.2024.
5. ILR 2007 KAR 2807 in the case of C.K.Ravi Prasanna Vs T.K.Gowramma.
6. 2024 INSC 493 in the case of G.M.Shahul Hameed Vs Jayanthi R.Hegde (Civil Appeal No.1188/2015).
7. 2024 INSC 704 in the case of Bidyut Sarkar and another Vs Kanchilal Pal (Dead) through Lrs and another (Civil Appeal Nos.10509-10510/2013)
15. Learned counsel for the defendant Nos.1 & 3 argued that, admittedly, this defendant No.1 had mortgaged the suit schedule property in favour of 2nd defendant bank and raised loan. Due to financial constraints, he could not repay the loan in time, at that time, defendant No.2 bank took the suit schedule property for sale under SARFAESI Act, at that time, the defendant No.1 availed loan from the plaintiff and her husband and for the security of the same, 1 st defendant has executed this Ex.P.1 document. On the same day in the presence of witnesses i.e., witnesses of Ex.P.1, this plaintiff has executed a memorandum of agreement as per Ex.D.7 stating that, this Ex.P.1 is a security document for the loan availed by defendant No.1. Learned counsel for defendant No.1 has drawn the attention of this Court that, in Ex.P.1 it is mentioned that, the stamp duty and registration charges are to be borne by the vendor, which is a strange averment. It is general practice that, purchaser used to pay the stamp duty and registration charges, but in Ex.P.1, it is contrary to the general practice, which shows that, defendant No.1 was in need of loan and he has put signature as per the say of the plaintiff. He has further argued that, as per the sale notice Ex.D.1 issued by defendant No.2 bank, reserve price of suit property was Rs.8,11,00,000/-, but in the alleged agreement of sale Ex.P.1, sale 14 O.S.No.437/2023 consideration of the suit property is mentioned as Rs.4,30,00,000/-. He has further argued that, husband of this plaintiff is a professional money lender without having any licence. As per Ex.D.4, he has filed similar suit for specific performance. Husband of the plaintiff has filed several cheque bounce cases under Sec.138 of N.I.Act as per Ex.D.8 to Ex.D.10. Husband of the plaintiff was always accompanying the plaintiff to the Court, who made to file this case through his wife, which shows that, this is only a loan transaction and by misusing Ex.P.1 document, they are trying to grab the valuable property of the defendant No.1, hence, prayed to dismiss the suit. He has relied upon the following rulings:
1. (1982) 1 SCC 4 in the case of Smt.Gangabai W/o. Rambilas Gilda.
2. (2004) 4 SCC 794 in the case of Parvinder Singh Vs Renu Gautam and others.
I have gone through the above rulings.
16. On perusal of Ex.P.1 agreement of sale, payment made by the plaintiff to the defendant No.1 is not a single payment, but it is commenced from 25.03.2021 till February 2022 on different intervals and on different mode i.e., some payments are made through RTGS, some payments are made through cheques, money transfers etc. The last payment mentioned in Ex.P.1 is dated 10.02.2022. As per the evidence of PW.1 as on the date of execution of Ex.P.1, on 10.02.2022, the plaintiff was aware regarding auction sale initiated by defendant No.2 bank in recovery of the loan amount by selling suit property in public auction. Inspite of it, in Ex.P.1, time for completion of the transaction, is mentioned as 3 years. It shows that, as on 10.02.2022, the plaintiff was aware that, the defendant No.2 has taken steps to recover the loan amount 15 O.S.No.437/2023 by selling the suit schedule property, inspite of it, period for completing the sale transaction is mentioned as 3 years.
17. In Clause-2 and Clause-6.1 of Ex.P.1 agreement of sale, it is mentioned as under:
2) TIME FOR COMPLETION:
The sale shall be completed within Three years from this date, however the Vendor shall furnish the following documents to make out good and marketable title within the stipulated time;
6) EXPENSES:
6.1) The expenses relating to Stamp Duty and registration charges
in regard to the Deed of Conveyance shall be borne by the Vendors:
Clause-6.1 mentioned in Ex.P.1 is a strange clause, because in general practice, the vendee i.e., buyer to bear the stamp duty and registration charges, but in this case, it is mentioned that, this vendor shall bear the stamp duty and registration charges, which appears to be not normal.
18. Defendant No.1 has produced the memorandum of agreement as per Ex.D.7. At the time of marking of the said document, the plaintiff has not raised any objections, but later has filed an application to impound the said document and to direct the defendant No.1 to pay duty and penalty. Defendant No.1 failed to pay the duty and penalty and make good the document.
19. In the ruling reported 2022 livelaw (sc) 970 in the case of Sirikonda Madhava Rao vs N.Hemalatha and others, wherein, it is held that, once a document has been admitted in evidence, such admission cannot be called in question at any stage of the suit or 16 O.S.No.437/2023 proceedings on the ground that the instrument has not been duly stamped. Objection as to admissibility of a document on the ground of sufficiency of stamp, has to be raised when the document is tendered in evidence. Thereafter, it is not open to the parties, or even the court to re- examine the order or issue.
20. In Para-8 of the written statement, the defendant has stated regarding this memorandum of agreement. The defendant No.1 has contended that, as on the date of agreement of sale dated 10.02.2022, plaintiff has executed memorandum of agreement in favour of defendant No.1 as per the terms and conditions. This Ex.D.7 document supports the defence of the defendant Nos.1 and 3 that, defendant No.1 has executed the agreement of sale Ex.P.1 as security of the loan availed by him from the plaintiff. The defendant No.1 has not examined the witnesses of this Ex.D.7 document to prove the same. At the same time, plaintiff has also not examined any witnesses of Ex.P.1 agreement of sale. In this case, witnesses to both Ex.P1 and Ex.D.7 are same.
21. It is the specific case of the defendant No.1 that, husband of plaintiff is a professional money lender without having valid licence. He used to lend loan by getting executed agreement of sale or cheques etc. Defendant No.1 has produced certified copies of order sheet and plaint in O.S.No.1942/2023 as per Ex.D.3 and Ex.D.4. On perusal of Ex.D.4 certified copy of plaint in O.S.No.1942/2023, husband of plaintiff by name Sri.Subramaniam Vairavan has filed suit for specific performance in respect of immovable property. Ex.D.8 to Ex.D.10 are certified copies of private complaints filed by this Sri.Subramaniam Vairavan against different persons under Sec.138 of the N.I.Act. On perusal of Ex.D.8 17 O.S.No.437/2023 certified copy of the complaint in PCR No.19379/2021, it is mentioned that, brother of the accused by name A.Madan Kumar had entered into registered agreement of sale dated 14.01.2020 in favour of this complainant i.e., Sri.Subramaniam Vairavan. In that case, accused was not interested in selling the property and after negotiation, there was a compromise and agreed to pay Rs.25,00,000/-, but he failed to repay the said amount and issued cheque for the said amount and cheque amount also not paid. Thereafter, this Sri.Subramaniam Vairavan filed complaint under Sec.138 of the N.I. Act as per Ex.D.8.
22. Defendant No.1 filed affidavit in lieu of his examination- in-chief reiterating the written statement averments and examined as DW.1. Ex.D.2 is the stop payment letter dated 31.10.2022 issued by this defendant No.1 to State Bank of India, Main Branch, St. Marks Road, regarding 8 cheques as mentioned in his written statement. It is the case of the plaintiff that, she has not received any cheques from the defendant No.1. On perusal of Ex.D.2, defendant No.1 has clearly mentioned that, he issued the following 8 cheques to Mrs.Anuradha Subramaniam as security towards the loan availed by him. This Ex.D.2 letter issued by the defendant No.1 to the bank on 31.10.2022, prior to filing of this suit. It is the specific case of the defendant No.1 that, he had issued these 8 cheques by mentioning the amount, without mentioning the name totaling to Rs.1,54,00,000/-. In the cross-examination of DW.1, advocate for the plaintiff suggested that, till today, said cheques are not presented in the bank. Advocate for the plaintiff suggested that, on 31.10.2022, he has issued stop payment letter, for which, DW.1 admitted. Relevant portion of the cross-examination of DW.1 reads 18 O.S.No.437/2023 that; ಈ ಚೆಕ್ಕು ಗಳನ್ನು ಇಲ್ಲಿಯವರೆಗೂ ಯಾರು ಬ್ಯಾಂಕಿಗೆ ಹಾಜರುಪಡಿಸಿಲ್ಲ ಎನ್ನು ವುದು ನಿಜ. ನಾನು ದಿಃ31.10.2022 ರಂದು ಈ ಚೆಕ್ಕು ಗಳ ಬಗ್ಗೆ ಸ್ಟಾ ಪ್ ಪೇಮೆಂಟ್ ಲೆಟರ್ ಕೊಟ್ಟಿದ್ದೇನೆ ಎನ್ನು ವುದು ನಿಜ. ನಾನು ಸದರಿ ಚೆಕ್ಕು ಗಳನ್ನು ಸಾಲದ ಮರುಪಾವತಿಗಾಗಿ ಕೊಟ್ಟಿದ್ದರೇ ಅವುಗಳ ಪೇಮೆಂಟ್ ಸ್ಟಾ ಪ್ ಮಾಡುವ ಅವಶ್ಯಕತೆ ಇರುವುದಿಲ್ಲ ಎನ್ನು ವುದು ಸರಿಯಲ್ಲ. ಈ ಚೆಕ್ಕು ಗಳು ದುರುಪಯೋಗ ಆಗಬಾರದು ಎಂದು ಸ್ಟಾ ಪ್ ಪೇಮೆಂಟ್ ಲೆಟರ್ ಕೊಟ್ಟಿದ್ದೇನೆ ಎನ್ನು ವುದು ನಿಜ. ನಿಪಿ.1ರಲ್ಲಿ ಸದರಿ ಚೆಕ್ಕು ಗಳ ಬಗ್ಗೆ ಬರೆಯಲು ನನಗೆ ಯಾವುದೇ ತೊಂದರೆ ಇರಲಿಲ್ಲ ಎಂದರೆ ಸಾಕ್ಷಿ ಅದಕ್ಕೆ ವಾದಿ ಒಪ್ಪಲಿಲ್ಲ ಎನ್ನು ತ್ತಾ ರೆ.
23. The plaintiff has produced the income tax returns for the assessment year 2023-24 with acknowledgment as per Ex.P.15. Ex.P.15(a) is the portion of the said document i.e., other receivables, wherein, it is mentioned in the other receivables Column that, this plaintiff is due of Rs.1,12,06,000/- from S.Kishore i.e., present defendant No.1. There is another person by name Vaibhav Kapoor and in front of name of Vaibhav Kapoor, it is mentioned as property advance of Rs.2,88,00,000/-, but in front of name of this defendant No.1, it is only the amount is mentioned and it is receivable amount.
24. Ex.P.16 is the income tax returns for the assessment year 2024-25 along with acknowledgment. In the said document, in the column of advance for property purchase, it is shown as Rs.1,44,00,000/- from this defendant No.1 Kishore. It is the case of the defendant No.1 that, this document Ex.D.16 created after filing of this suit for the purpose of this suit. In Ex.P.15, which is for the period from 01.04.2022 to 31.03.2023, the amount of Rs.1,12,06,000/- is shown as other receivable from this defendant No.1. If really, this amount was paid as advance amount for purchase of property, question of showing it as receivable do not arise.
19 O.S.No.437/202325. PW.1 in her cross-examination has stated that, the payments mentioned in Ex.P.1 are made between 15.05.2021 to 10.02.2022. PW.1 admitted that, eventhough, the payments were made prior to 10.02.2022, but in the agreement, it is mentioned that, payments are made as on the date of agreement. In the cross- examination of PW.1 in page-7, she has admitted that, generally in case of sale of immovable property, there would an agreement for the purpose of stamp duty and another agreement for actual transaction. Relevant portion of the cross-examination of PW.1 reads as under:
ಸಾಮಾನ್ಯವಾಗಿ ಸ್ಥಿರ ಆಸ್ತಿಯ ವ್ಯವಹಾರದಲ್ಲಿ ಸ್ಟಾಂಪ್ ಡ್ಯೂ ಟಿ ಕಟ್ಟಲು ಗೈಡೆನ್ಸ್ ವ್ಯಾ ಲ್ಯೂ ಗೆ ಒಂದು ವ್ಯವಹಾರ ಮತ್ತು ಆಕ್ಚು ಯಲ್ ಮಾರ್ಕೆಟ್ ವ್ಯಾ ಲ್ಯೂ ಗೆ ಇನ್ನೊಂದು ವ್ಯವಹಾರ ಆಗುತ್ತದೆ ಎನ್ನು ವುದು ನಿಜ. ನಿಪಿ.1 ಕರಾರು ಪತ್ರದಲ್ಲಿ ದಾವಾ ಆಸ್ತಿಯ ಗೈಡೆನ್ಸ್ ವ್ಯಾ ಲ್ಯೂ ಮಾತ್ರ ನಮೂದಿಸಲಾಗಿದೆ ಎನ್ನು ವುದು ಸರಿಯಲ್ಲ. ನಿಪಿ.1 ಕರಾರು ಪತ್ರದ ಕಾಲಕ್ಕೆ ದಾವಾ ಆಸ್ತಿಯ ನಿಜವಾದ ಮಾರುಕಟ್ಟೆ ಬೆಲೆ 9 ಕೋಟಿಗೂ ಹೆಚ್ಚಾ ಗಿತ್ತು ಎನ್ನು ವುದು ಸರಿಯಲ್ಲ.
26. PW.1 admitted that, in Ex.D.1 sale notice, the reserve price of the property is mentioned as Rs.8,11,00,000/-,
27. In the cross-examination of DW.1, advocate for the plaintiff suggested that, prior to 25.03.2021, defendant No.2 Karnataka Bank had advanced loan of Rs.4,00,00,000/- and attached the property and taken possession of the same. Relevant portion of the cross-examination of PW.1 reads as under:
ದಿಃ25.03.2021ಕ್ಕೆ ಮುಂಚೆ ದಾವಾ ಆಸ್ತಿಯ ಬಗ್ಗೆ ಕರ್ನಾಟಕ ಬ್ಯಾಂಕಿನಲ್ಲಿ ಸುಮಾರು 4 ಕೋಟಿ ರೂಪಯಿ ಸಾಲದ ಬಾಕಿ ಇತ್ತು . ಆ ಸಾಲವನ್ನು ಒಂದೇ ಕಂತಿನಲ್ಲಿ ತೀರಿಸಲುನನಗೆ ಸಾಧ್ಯವಿರಲಿಲ್ಲ ಎನ್ನು ವುದು ನಿಜ. ದಿಃ 25.03.2021 ಪೂರ್ವಕ್ಕೆ ಕರ್ನಾಟಕ ಬ್ಯಾಂಕಿನವರು ದಾವಾ ಆಸ್ತಿಯನ್ನು ಅಟ್ಯಾ ಚ್ಮಾಡಿ ಸ್ವಾ ಧೀನ ಪಡೆದಿದ್ದರು ಎನ್ನು ವುದು ನಿಜ.20 O.S.No.437/2023
As discussed above, admittedly, the property was put to auction and taken possession by defendant No.2 Bank prior to 25.03.2021, then why 3 years period for completion of sale transaction was mentioned in Ex.P.1 agreement of sale is not explained.
28. As per the defendant No.1, on 02.12.2021, defendant No.2 Karnataka Bank took possession of the suit schedule property under the SARFAESI Act for recovery of loan amount. Thereafter, defendant No.1 approached defendant No.2 bank for settlement and bank gave OTS offer of Rs.2,75,00,000/-, for which, defendant No.1 accepted. Thereafter, defendant No.1 approached husband of the plaintiff for loan, for which, husband of the plaintiff agreed to advance the loan at simple rate of interest at 12% per annum and for the security of the said loan, husband of the plaintiff forced the defendant No.1 to execute agreement of sale, accordingly, on 10.02.2022 he executed the agreement of sale as per Ex.P.1 for the security of the same.
29. In this case, if the plaintiff was always ready and willing to purchase suit schedule property for an amount of Rs.4,30,00,000/-, they could have paid the entire amount of Rs.2,75,00,000/- to defendant No.2 bank under the OTS scheme and they could have paid the remaining amount to the defendant No.1 if the defendant No.1 intended to sell the suit schedule property. The plaintiff is aware that, defendant No.2 bank had took possession of the suit schedule property and proceeded to sell the same in public auction.
Under these circumstances, why the period of 3 years is mentioned in Ex.P.1 agreement of sale, is not explained. Hence, it cannot be held that, the plaintiff was always ready and willing to perform her 21 O.S.No.437/2023 part of contract as mentioned in the agreement of sale. Under the above circumstances, I answer issue Nos.1 and 2 are in the Negative and issue No.3 is in the Affirmative.
30. ISSUE NO.4: In this case, after the order on IA No.2 by this Court and after the order of the Hon'ble High Court in W.P.No.1837/2023, both plaintiff and defendant No.1 have deposited the amount in defendant No.2 Karnataka Bank towards the loan account of defendant No.1. In the cross-examination of DW.1, counsel for the plaintiff suggested regarding the payment. Relevant portion of the cross-examination of DW.1 at page-3 reads as under:
ನಿಪಿ.1 ಕರಾರು ಪತ್ರದಡಿಯಲ್ಲಿ ವಾದಿಯಿಂದ 1 ಕೋಟಿ 12 ಲಕ್ಷ ರೂಪಾಯಿಗಳನ್ನು ಕರಾರು ಪತ್ರ ಬರೆಯುವ ಮುಂಚೆ ಪಡೆದಿದ್ದೇನೆ. ಕರಾರು ಪತ್ರ ಬರೆದ ನಂತರ 37 ಲಕ್ಷ ರೂಪಯಿಗಳನ್ನು ಪಡೆದಿದ್ದೇನೆ. ಇದರ ಹೊರತಾಗಿ ನ್ಯಾ ಯಾಲಯದ ಆದೇಶದಂತೆ ವಾದಿ ನನ್ನ ಕರ್ನಾಟಕ ಬ್ಯಾಂಕಿನಲ್ಲಿನ ಸಾಲದ ಖಾತೆಗೆ 1 ಕೋಟಿ 44 ಲಕ್ಷ ರೂಪಾಯಿಗಳನ್ನು ಜಮೆ ಮಾಡಿದ್ದಾ ರೆ ಎನ್ನು ವುದು ನಿಜ. ಸಾಕ್ಷಿ ಮುಂದುವರೆದು 37 ಲಕ್ಷ ರೂಪಾಯಿ ಅಲ್ಲ 27 ಲಕ್ಷ ಪಡೆದಿದ್ದೇನೆ ಎನ್ನು ತ್ತಾ ರೆ. ವಾದಿಯಿಂದ ಚೆಕ್ಕು ಮನಿಟ್ರಾ ನ್ಸಫರ್ ಮೂಲಕ ನನಗೆ ಒಟ್ಟು 1 ಕೋಟಿ 40 ಲಕ್ಷ ರೂಪಾಯಿ ಸಂದಾಯವಾಗಿದೆ ಎಂದರೆ ಸಾಕ್ಷಿ 1 ಕೋಟಿ 39 ಲಕ್ಷ 6 ಸಾವಿರ ಸಂದಾಯವಾಗಿದೆ ಎನ್ನು ತ್ತಾ ರೆ. ವಾದಿಯಿಂದ ನನಗೆ ಮತ್ತು ನನ್ನ ಸಾಲದ ಖಾತೆಗೆ ಸೇರಿ ಒಟ್ಟು 2 ಕೋಟಿ 84 ಲಕ್ಷ 6 ಸಾವಿರ ಸಂದಾಯವಾಗಿದೆ ಎನ್ನು ವುದು ನಿಜ.
31. As admitted by defendant No.1, till today, the plaintiff has paid total sum of Rs.2,84,06,000/- to the defendant No.1 i.e., under Ex.P.1 agreement of sale and deposit of amount to the loan account of the defendant No.1 in defendant No.2 Karnataka Bank. This plaintiff and defendant No.1 have deposited excess amount with defendant No.2 bank. After the orders of the Hon'ble High Court in W.P.No.1837/2023, defendant No.2 bank has deposited excess / surplus amount of Rs.4,93,864.31 before this Court along with keys, 22 O.S.No.437/2023 title deeds and documents of suit property before this Court. The Hon'ble High Court has directed this Court to decide who is entitled for which relief. As discussed above, admittedly, the plaintiff has paid the amount to the defendant No.1 and also deposited amount to the loan account of defendant No.1 with defendant No.2 bank. As per the case of the defendant No.1, he has availed loan from the plaintiff with simple interest at the rate of 12% per annum. Hence, the defendant No.1 is liable to repay the said amount to the plaintiff.
32. In this case, plaintiff has not prayed for refund of money alternatively. Plaintiff has filed this suit by paying huge amount of Court fee. During the pendency of suit, plaintiff has deposited Rs.1,44,00,000/- with 2nd defendant bank. Hence, on technical grounds if the suit is dismissed without ordering refund of money, which is already paid to 1st defendant, plaintiff will be put to hardship and injustice. Looking to the facts and circumstances of the case, in the considered opinion of this Court, it is just and proper to direct 1 st defendant to refund Rs.2,84,06,000/- to the plaintiff along with simple rate of interest at 12% p.a. Surplus amount of Rs.4,93,865/- deposited by 2nd defendant bank in the Court is liable to be paid to the plaintiff and the said amount shall be deducted from Rs.2,84,06,000/-, which comes to Rs.2,79,12,135/-. Accordingly issue No.4 is answered .
33. POINT No.5:- In view of the aforesaid discussions, I proceed to pass the following :-
ORDER The suit of the plaintiff is dismissed regarding relief of specific performance.23 O.S.No.437/2023
Amount of Rs.4,93,865/- deposited by defendant No.2 bank in the Court shall be paid to the plaintiff.
The defendant No.1 is directed to refund Rs.2,79,12,135/- with interest at 12% per annum from the dates of amounts received by defendant No.1 under Ex.P.1 and from the date amount deposited by plaintiff in defendant No.2 bank, till realisation, to the plaintiff.
Original documents and keys regarding suit schedule property deposited by defendant No.2 bank in the Court shall be given to the custody of defendant No.1.
The defendant No.1 is directed to make payment of the above said amount to the plaintiff within two months from the date of this judgment, failing which, the plaintiff is at liberty to recover the same by following due process of law.
Defendant Nos.1 and 3 shall bear cost.
Draw decree accordingly.
(Dictated to the Stenographer-III, computerised by her, corrected and then pronounced by me in the open Court on this the 19th day of March, 2025) (B.P.Devamane) I Addl. City Civil & Sessions Judge, Bengaluru.24 O.S.No.437/2023
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PLAINTIFF:
PW.1 : Smt.Anuradha Subramaniam.
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF PLAINTIFF:
Ex.P.1 : Agreement of sale dated 10.02.2022.
Ex.P.2 : Certified copy of the sale deed dated
19.03.1993.
Ex.P.3 : EC.
Ex.P.4 : Office copy of legal notice.
Ex.P.5 : Postal receipts.
Ex.P.6 : Returned RPAD cover.
Ex.P.7 : HDFC bank statement of plaintiff account.
Ex.P.8 : HDFC bank statement of Sri.Subramaniyam.
Ex.P.9 : Certified copy of gazette notification regarding
S.R.Value of suit property.
Ex.P.10 : Digital certified copy of sale deed dated
30.03.2016.
Ex.P.11 : Digital certified copy of sale deed dated
20.05.2010.
Ex.P.12 : Certificate under Sec.65B of Evidence Act.
Ex.P.13 : Reply notice.
Ex.P.14 : CC of the Gift deed.
Ex.P.15 : Income tax returns for 2023-24 with
acknowledgment.
Ex.P16 : Income tax returns for 2024-25 with
acknowledgment.
Ex.P.17 : Digital certificate copy of the sale deed dated
06.04.2023.
Ex.P.18 : Digital certified copy of sale deed dated
06.04.23.
Ex.P.19 : Digital certified copy of sale deed dated
05.04.2021.
25 O.S.No.437/2023
Ex.P.20 : Digital certified copy of sale deed dated
23.10.2017.
Ex.P.21 to : ECs.
23
Ex.P.24 : Certificate under Sec.65B of Evidence Act.
LIST OF WITNESSES EXAMINED ON BEHALF OF DEFENDANT:
DW.1 : Sri.S.Kishore.
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF DEFENDANT:
Ex.D.1 : Sale notice.
Ex.D.2 : Endorsement of stock payment letter dated
31.10.2022.
Ex.D.3 : Certified copy of the order sheet in
O.S.No.1942/2023.
Ex.D.4 : Certified copy of the plaint in O.S.No.1942/23.
Ex.D.5 : Certified copy of IA u/o 39 Rule 1 & 2 of CPC in
O.S.No.1942/23.
Ex.D.6 : 4 applications under Sec.151 of CPC for
extension of TI order in O.S.No.1942/2023.
Ex.D.7 : Memorandum of Understanding dated
10.02.2022.
Ex.D.8 : Certified copy of complaint in PCR
No.19379/2021.
Ex.D.9 : Certified copy of complaint in PCR
No.16869/2021.
Ex.D.10 : Certified copy of complaint in PCR
No.16866/2021.
Ex.D.11 : Digital certified copy of agreement of sale dated
14.01.2020.
Ex.D.11(a) : Certificate.
(B.P.Devamane)
I Addl. City Civil & Sessions Judge,
Bengaluru.