Bangalore District Court
Sri Kodanda vs Smt. Manjula Venkatesh on 23 March, 2022
KABC010272602018
Form
No.9
(Civil)
Title
Sheet
for
Judgmen
t in PRESENT: SMT. PRASHANTHI G,
B.A.(Law) LL.B.,
XXVII Additional City Civil Judge.
Dated this the 23 rd day of March 2022.
PLAINTIFF: SRI KODANDA,
S/o Late Narasimhappa,
Aged about 77 years,
Residing at No.68, AECS Layout,
3rd Stage, Nagashettihalli,
BENGALURU-560 094.
[By Sri T.R. RAMAKRISHNA, Advocate]
/v e r s u s/
DEFENDANTS: 1. Smt. Manjula Venkatesh,
W/o Late N.Venkatesh,
Aged about 53 years.
2. Sri Vikram C.V.
S/o Late N.Venkatesh,
Aged about 33 years.
3. Sri Vivek C.V.
S/o Late N. Venkatesh,
Aged about 33 years.
All are R/at No.8,
Muneshwara Krupa,
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Amarjyothi Layout,
Sanjaynagar,
BENGALURU-560 094.
[By Sri S. Rajeshekar, Advocate ]
Date of institution of the : 29/09/2018
suit
Nature of the suit : For recovery of money
Date of commencement of : 3/12/2019
recording of the evidence
Date on which the : 23/3/2022
Judgment was
pronounced.
: Year/s Month/s Day/s
Total duration
2 5 25
(Prashanthi. G)
XXVII ACCJ: B'LORE.
The plaintiff has filed this suit against the
defendants for the relief of recovery of money
directing the defendants to pay a sum of
Rs.10,25,000/- [Rupees Ten lakhs & Twenty fie
thousand] to the plaintiff being the balance payment
as per MOU dated 6/2/2018 with interest @ 18% per
annum on the said amount of Rs.10,25,000/- from
the date they become due till the date of realisation;
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and directing the defendants to pay the cost of the
suit.
2. The brief facts of the plaintiff's case are as
follows:
The plaintiff is the senior citizen aged 77 years
and suffering from several health problem. He is a
handicapped and retired also. The defendants are the
investors to the flats are having the habit of financing
the developers at the time of starting of the
construction work. The defendants purchased the
properties from the builders at the low rates and the
same will be sold the huge rates wherein they get
huge profits.
Plaintiff is the absolute owner of the property
bearing site no.68 in the layout formed by the Aircraft
Employees Co-operative Society Ltd., The same came
to the possession of the plaintiff by virtue of the sale
deed. The katha certificates, katha extracts and tax
paid receipts clearly shows that the plaintiff is the
owner of the suit schedule property.
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Plaintiff approached one developer by name
Satish Naidu who is the proprietor of
S.V.Constructions and developers. In order to develop
the property by constructing the residential units
comprising of ground floor and upper floors consisting
of residential units, stilt floor consisting of car parking
slots. The developer agreed the same and develop the
property by constructing the residential units
comprising of the ground floor and upper floors
consisting of residential unit, stilt floor consisting of
car parking area also. Developer agreed to deliver 50%
of the super built up area to be constructed on the
said property with 50% car parking slots in the stilt
floor including the common areas, set back areas,
terrace, garden space to the plaintiff along with 50%
undivided share of the land rights in the said
property.
It is agreed between the developer and plaintiff
that, the ground floor flats constructed in the suit 'A'
schedule property belongs to the plaintiff. The first
floor flats constructed suit 'A' schedule property
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belongs to developer. The second floor west side flat
constructed in the suit 'A' schedule property belong to
the plaintiff, and second floor east side constructed in
the suit 'A' schedule property belongs to the developer.
A Joint Development Agreement was entered
between the plaintiff and said builder on 29/8/2013
specifying the terms and conditions including the rate
payable by the plaintiff to the builder and period of
completion work. That agreement was registered also.
It is agreed between the developer and plaintiff that,
under the agreement, the developer ought to have
completed the construction work in all respect fit for
human habitation and shall complete the
construction within the stipulated period of 15
months from the date of handing over of the said
property to the developer from the plaintiff within the
expiration of the term agreed between the parties.
In the same way, a general power of attorney was
also executed by the plaintiff in favour of the said
developer in order to develop the built up area
together with the proportionate undivided share of
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right, title and interest in the schedule property falling
to the share of the developer.
On 1/9/2013, the plaintiff has handed over the
said vacant site to the developer to start the
construction work. As per the agreement, the
developer ought to have completed the work on or
before 30/11/2014 i.e., 15 month time is fixed.
However, as agreed the developer did not complete the
work within the time. On 31/12/2014, the developer
had carried out the construction work only upto 70%.
On 12/11/2015, a letter was sent by the plaintiff
informing the developer that he has carried out only
70% work and the balance work is yet to be completed
and requested him to complete the balance work as
soon as possible. Even after receiving that notice, the
developer has not made any efforts to complete the
balance work. The plaintiff also requested developer to
complete the balance work and to pay the rents to the
flats coming under his share form 1/12/2014 and to
handover the original approval documents from the
concerned department to his custody. But the
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developer has not paid the rents nor came forward to
complete the construction work inspite of the several
requests.
The plaintiff has been requesting the developer to
complete the balance work. However, developer has
been postponing the same on one or other pretext.
Since all the efforts of the plaintiff become in vain, the
plaintiff constrained to issue a legal notice on
11/1/2016 calling upon the developer to complete
the balance work and paid the rents to the plots
comes under the share of the plaintiff from
1/12/2014 and to hand over the original documents
to the plaintiff within the period of 30 days. Even after
the notice, the developer did not complete the balance
work nor paid the rents and hand over the original
documents. There is no fault on the part of the
plaintiff to complete the construction work. Non-
completion of the work is highly illegal and therefore a
suit in O.S.1612/2016 has been filed by the plaintiff
against the developer seeking injunction not to
alienate his share without sharing the plot.
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When the things are like this, the plaintiff came
to know the fact that, the developer has executed an
agreement of sale in favour of the defendant under the
registered Sale Agreement in respect of the plots
belongs to the share of the developer. The developer
has executed agreement of sale in favour of the
defendant under the registered agreement of sale
dated 12/2/2014. The developer has no right to
execute the agreement of sale in favour of the
defendants and same has been informed by the
plaintiff to the defendants. Without sharing the
agreement between the plaintiff and the developer and
without completion of the construction work, without
handing over the possession of the share of the
plaintiff, the agreement of sale executed by the
developer to the defendants are not valid in the eye of
the law.
Both the defendants and one Tirumalakumar
along with the said developer has started harassing
the plaintiff and his family members. On 13/3/2016,
the defendants along with the Tirumalakumar and
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said developer harassed the plaintiff to put his
signature. Without any alternative, the plaintiff has
put the signature on one letter. On 28/4/2016, the
plaintiff lodged a complaint against both the
defendant and one Tirumalakumar and the said
developer. Thereafter, on 11/5/2016, the police
authority has issued instructions to the defendant
and Tirumalakumar and the said developer that not to
harass the plaintiff. Both the said developer defendant
and Tirumalakumar demanded the plaintiff to pay a
sum of Rs.3,00,000/- to the plaintiff subject to
complete the construction work. As per the
instructions of the police, the plaintiff has issued the
two cheques drawn on Dena Bank, Nagashettihalli
branch of Bengaluru and promised to honour the
same after the completion of the work. However, the
developer did not complete the work.
Meanwhile, it came to the knowledge of the
plaintiff that, without sharing the plots between the
plaintiffs, the said G.Satish Naidu without completion
of the work, without handing over the documents,
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executed the sale deed in respect of plot no.S2 in
favour of one Santosh. After enquiry, plaintiff was
surprised to note that, said Satish Naidu played fraud
and created MOU dated 19/4/2017. By forging the
signature of the plaintiff, MOU has been concocted by
Satish Naidu. Even this fact was also within the
knowledge of the defendant that the plaintiff was not
executed MOU. So, in order to deprive the rights of the
plaintiff, and deprive the legal right of the plaintiff
over 50% share in the property in question, G.Satish
Naidu get registered the sale deed on the basis of the
forged MOU.
The defendants are aware that Satish Naidu
played fraud and forged the signature of the plaintiffs
for wrongful gain and to snatch the property in
question. A complaint was filed before Sanjaynagar
Police who advised the plaintiff to wait, and further
one more complaint has been filed by the plaintiff
against the said developer which was registered as
crime No. 324/2017 punishable under Section 120-B,
406 and 468, 471 and 420 of the IPC.
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After the said development, the defendants
approached the plaintiff in the month of July 2017
and requested to co-operate to get the sale deeds from
the developer, and further the defendants also
promised to the plaintiff to pay the claim amount
which the developer has to be paid and agreed to
complete the construction work and hand over the
documents and transfer the katha in respect of the
share of the plaintiff. On humanity consideration, the
plaintiff has put his signatures on plain documents
i.e., the MOU, sharing agreement and deed of
declaration which are brought by the defendants.
After getting the said documents, the defendants
get registered sale deeds dated 14/12/2017,
14/12/2017 and 1/1/2018 registered in the Sub
Registrar of Gandhinagar from the developer in
respect of the residential apartment bearing F1
situated in the first floor bearing S2 situated in
second floor, and bearing T1 situated in the third
floor. Eventhough the defendants are aware that the
developers have executed the sale deeds in favour of
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the defendants is not valid since the developer has no
right, title and interest over his 50% of the share of
the property and the same was informed by the
plaintiff to the defendant. Without sharing agreement,
without completing the construction work, and
without handing over the possession of the share of
the plaintiff, the sale deeds executed by the said
developer are not valid in the eye of law and same is
informed to the defendants. The defendants have
approached and requested the plaintiffs to release his
rights, interest over the suit 'B' schedule property by
receiving the different value amount and claim
amount of sum of Rs.30 lakhs from the defendant as
against the claim amount of Rs.60 lakhs as per the
details furnished at the time of executing MOU and
the same has been agreed by the plaintiff. On
6/2/2018, the plaintiff has executed MOU in favour of
the defendants. It is specifically agreed between the
defendants and the plaintiff that -
a) That the ground floor flat named G1, the
second floor flat no. S1 with undivided share 293
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square feet and third floor flat no.T2 west side east
facing with undivided share of 270 square feet
constructed in suit 'A' schedule property is to be
belongs to the plaintiff;
b) The first floor flat no.F1, the second floor
flat no.S2 with undivided share of 293 square feet and
3rd floor flat no.T1 east side north facing with
undivided share of 270 square feet constructed in the
suit 'A' schedule property belongs to the defendant.
c) The defendants are undertaken to complete
the balance work on behalf of the above said developer
in the suit 'A' schedule property belongs to the
plaintiff and they have agreed to pay the difference
amount and claim amount of Rs.30 lakhs to the
plaintiff within the period of 5 months.
d) The plaintiff has agreed and undertakes to
file the memo of withdrawal of the suit in
O.S.1612/2016 filed by the plaintiff before the City
Civil Judge, Bengaluru which is filed against the
developer.
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It is submitted that, the original copy of the said
MOU are in the hands of the defendants and xerox
copy is given to the plaintiff.
As per the MOU dated 6/2/2018, the plaintiff
has withdrawn the above suit in O.S.1612/2016 on
15/2/2018. The defendants have promised that they
will get back the two cheques bearing No.489115 and
489116 drawn on Dena Bank which were issued to
the developer on 11/5/2016 to honour the same after
the completion of the work.
As per the MOU dated 6/2/2018, the plaintiff
has received a sum of Rs.19,25,000/- only against the
Rs.30 lakhs and the balance amount of
Rs.10,75,000/- the defendant has not paid as per the
agreement entered between the plaintiff and
defendants. As per the MOU, after the completion of
the work, the plaintiff has been requesting the
defendants to pay the balance amount. However, the
same was postponed by the defendants by one or the
other reasons.
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Instead of making the balance amount, the
defendants started harassing the plaintiff mentally.
Taking advantage of the cheques, the defendants
colluded each other and instructed the builder to file
the complaint against the plaintiff under Section 138
of the Negotiable Instrument Act. As per the
instructions of the defendant, the developer filed
complaint which is pending before XXII ACMM Court.
With an intention to avoid the payment of balance
amount of Rs.10,75,000/- and to further the amount
from the plaintiff, the defendants have started
threatening and demanding the plaintiff to pay a sum
of Rs.27,00,000/- stating that plaintiff should be paid
the loan amount which was borrowed by one Santosh.
Further, the defendants have threatened the plaintiff
if the plaintiff will not paid the sum of Rs.27 lakhs to
the defendants, they will not instruct the builder to
withdraw the complaint in CC No.1602/2018 and
further they will not handover the original documents
to the plaintiff.
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As per the MOU dated 6/8/2018, the defendants
are bound to make the balance payment of
Rs.10,75,000/- to the plaintiff and bound to handover
the original documents from the concerned
departments to the custody of the plaintiff. Therefore,
plaintiff issued a legal notice on 1/9/2018 calling
upon the defendants to pay the balance amount
which was served to the defendants.
Instead of making the balance payment, the
defendant has issued the reply notice stating that they
have agreed to pay the total sum of Rs.30 lakhs as per
the MOU and the defendants have paid a sum of
Rs.19,55,000/- and further they claims to refund a
sum of Rs.19,55,000/- with interest. As per the
agreement, the defendants have to agreed to pay a
sum of Rs.3 lakhs to the plaintiff after the withdrawal
of the suit. Further, the defendants agreed to pay a
sum of Rs.9,75,000/- to the plaintiff within six
months.
After the withdrawal of the suit in
O.S.1612/2016, the defendants have paid only Rs.2
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lakhs to the plaintiff. As per the memorandum of
understanding dated 6/2/2018, the defendants are
bound to make the balance payment. Without any
alternative, the present suit has been filed.
The cause of action for the suit arose on
6/2/2018 when the defendants have entered
agreement and failed to pay the balance amount as
agreed. The entire transaction is within the
jurisdiction of this Court. Therefore, prays to decree
the suit in the ends of the justice.
3. The summons is duly served to the
defendants 1 to 3. Defendants 1 to 3 appeared
through their advocate and filed written statement.
4. The main contentions of the defendants 1
to 3 in the written statement are as under:
These defendants denies each and every
averments of the plaint and contended that there is no
cause of action in order to file the suit. However, the
defendants contended as follows:
The suit schedule property came to be purchased
by the plaintiff under the registered sale deed dated
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20/8/1983. Afterwards, plaintiff entered into Joint
Development Agreement dated 29/8/2013 which was
registered for the purpose of putting up the residential
apartment over the said property with
S.V.Constructions and Developers, represented by its
proprietor Mr.Satish Naidu. After the execution of the
Joint Development Agreement, the plaintiff had
executed a general power of attorney which came to
be registered. After the execution of the Joint
Development Agreement, the proprietor G.Satish
Naidu offered to sell the apartment to be constructed
in the said property. After knowing the intentions of
the developer, these defendants have decided to
purchase 3 flats proposed to be constructed in the
aforesaid property. Accordingly, an agreement of sale
dated 12/2/2014 has been entered between the
developer and the second defendant with respect to
flat No.S2 and also with regard to the F1 and T1, two
separate Sale Agreements have been entered. All these
agreements are registered before Sub Registrar,
Gandhinagar.
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Instead of executing the sale deeds in favour of
the defendants, the developer started to avoid the
execution of the sale deed and postponed the same by
assigning one or the other reason. Subsequently on
the repeated request made by the defendants, a
Supplementary Agreement was also executed on
22/8/2016 after receiving the entire sale
consideration in the respect of the 3 flats mentioned
above and put the defendants in possession of the
same.
As per the understanding between the plaintiff
and developers, the flat bearing S1 on the eastern side
was allotted to the share of the plaintiff. However, in
order to knock off the property of the second
defendant, the plaintiff has falsely claimed that flat
No.S2 is allotted to his share. In addition to that, the
plaintiff used to disturb and interfere with the
peaceful possession and enjoyment of this defendant,
and as such these defendants were forced to approach
the developer requesting him to settle the issue with
the plaintiff. The plaintiff forcibly rented the flats
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fallen to his share though the works were not
completed and started to rent out the parking slots
which are allotted to the share of the defendants. Due
to illegal interference by the plaintiff, the defendants
were forced to request the plaintiff not to interfere
their possession, for which the plaintiff has demanded
Rs.50 lakhs in order to release his right, title and
interest over the three flats. Accordingly, the
defendants have agreed to pay a sum of Rs.15 lakhs
and a Memorandum of Understanding came tobe
entered between the plaintiff and defendant on
29/7/2017. The demand made by the plaintiff with
regard to the existence of the right, title and interest
over the said three flats is a bogus claim. However, the
defendants were forced to pay a sum of Rs.5,00,000/-
by way of RTGS to the account of the wife of the
plaintiff. Thereafter, the defendants have agreed to
pay the balance amount of Rs.9,25,000/- at the time
of withdrawal of suit in O.S.1612/2016 and the
balance amount of Rs.75,000/- was paid by way of
cash so as to enable the plaintiff to pay the fees to his
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advocate. Subsequently, once again the plaintiff
started to demand the additional amount and harass
the defendant before withdrawing the suit. Under the
above circumstances, the defendants are compelled to
pay a additional sum of Rs.1,50,000/- on 7/11/2017.
Inspite of the receipt of the said amount, the
plaintiff colluded with the developer with the intention
to defeat the rights of the defendants and once again
started to claim the rights over the three flats. As a
result of t his, the developer avoided the postpone the
xecution of the sale deed by assigning one or other
letter in favour of the defendant admitting the
interference and promise of the plaintiff and his family
members with regard to the possession of the
defendants. Though the plaintiff has undertook that
he will not interfere with the possession of the
defendants, he started interfering which was
questioned by the developer. For the above said
reason, the plaintiff filed a false complaint before the
jurisdiction police on 28/4/2016. On 11/5/2016, the
police summoned the plaintiff, developer, the above
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named Tirumalakumar for investigation and plaintiff
on that day entered into a compromise with the
developer and addressed the letter to the concerned
jurisdiction police so as to sort out the issues with the
developer. At the time of the settlement, plaintiff
issued two cheques to the developer so as to repay the
refundable deposit paid by the developer to the
plaintiff at the time of the execution of the Joint
Development Agreement and it is not as contended by
the plaintiff.
Since the plaintiff failed to pay the refundable
security deposit, the developer stopped the completion
of the construction work, later on that work has been
completed by the defendants. The plaintiff started to
claim that the defendants are not the owners of the
property and they are the only agreement owners.
Further he contended that he has already filed a suit
in O.S.1612/2016 and pressurized these defendants
to handover the possession of the property.
Subsequently at the instance of the plaintiff and in
collusion with the developer, the developer tried his
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level best to create third party interest in flat no.S2 so
as to defeat the valuable rights of the defendants.
As a first step of interference, one Mr.Santosh
tried to interfere with the physical possession of the
defendant. For which, a complaint was filed before the
jurisdiction police. Subsequently a suit was filed in
O.S.7801/2017 before this Court which is still
pending for consideration. During the pendency of the
s uit, the developer, plaintiff and these defendants
have decide their differences with regard to the
allotment of the flats and as such a deed of
declaration came to be executed on 1/11/2017.
Pursuant to the execution of that document, the
developer and plaintiff executed a registered sale deed
with respect to the flats bearing No.F1 and T1 on
14/12/2017. Thereafter, a registered sale deed was
executed in favour of the defendant no.2 by the
developer and the plaintiff on 1/1/2018 in respect of
the flat bearing No.S2.
Inspite of the executing the sale deeds, the
plaintiff once again started to claim the rights over the
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property contending that O.S.1612/2016 is still
pending and he will not withdraw the suit unless
these defendants pay another sum of Rs.15 lakhs over
and above the Rs.15 lakhs which was agreed to be
paid as per the Memorandum of Understanding dated
29/7/2017. Considering the day to day interference
and usage of the filthy language by the plaintiff and to
put an end to the differences, these defendants are
agteede to pay a total sum of Rs.30 lakhs under
compulsion and accordingly a Memorandum of
Understanding dated 6/2/2018 came to be entered
between them and not as contended by the plaintiff.
The defendants have paid a sum of Rs.7,25,000/- at
the time of execution of the Memorandum of
Understanding dated 29/7/2017. Further, a sum of
Rs.12 lakhs was paid by the defendants in the
following manner. Rs.10 lakhs was paid to the
account of the wife of plaintiff through RTGS. The said
payment was acknowledged by the plaintiff. Another
sum of Rs.2 lakhs was transferred on 30/7/2018 to
the account of Varalakshmi. It was also acknowledged
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by the plaintiff. A sum of Rs.30,000/- was paid to the
advocate for the plaintiff who drafted Memorandum of
Understanding dated 6/2/2018 by way of cheque on
12/2/2018, to the name Sri T.R.Ramakrishna. This
clearly shows that these defendants have paid
additional sum of Rs.19, 55,000/- to the plaintiff.
Inspite of the fact that, the defendants are not liable to
pay any amount, the plaintiff has ventured to harass
these defendants by playing false and frivolous rights
over the aforesaid flats.
These defendants are no way connected to the
pending criminal case in C.C.No.11602/2018 between
the plaintiff and the developer. Therefore, they cannot
request the developer to withdraw the said complaint.
Further, by forging the said document, it appears that
the developer and third party by name Santosh in
collusion with the plaintiff availed loan from Fullerton
Finance Ltd., for which the plaintiff and others are
liable and the defendants are no way connected with
the same.
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In view of the aforesaid facts and circumstances
and in view of deed of declaration executed by plaintiff
and sale deed executed 14/12/2017 and 1/1/2018,
these defendants have become the absolute owners in
the respect of the aforesaid properties. The plaintiffs
have no manner of right, title over the same. These
defendants are not liable to pay any amount to the
plaintiff. The plaintiff has colluded with the developer
and third party Santosh and trying to defeat the
valuable rights of the defendants in order to make
unjust enrichment. Plaintiff has forcibly taken
Rs.19,55,000/- for which he is entitled to refund the
same with the interest at the rate of 18% per annum
from the date of receipt of the amount. Inspite of the
above, the plaintiff has issued a notice on 1/9/2018
by making false and frivolous allegations against the
defendants. In the light of the above circumstances,
the suit is not maintainable and same is liable to be
dismissed with costs.
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There is absolutely no cause of action to initiate
the suit. The cause of action pleaded by the plaintiff is
imaginary.
Along with the written statement, the defendant
also sought for the counterclaim in the above case.
The plaintiff has entered into a Joint
Development Agreement, supplemental sharing
agreement, deed of declaration and inspite of
execution of the sale deeds in favour of these
defendants in respect of flats bearing no. F1, S2 and
T1 constructed on the property bearing site no.68
used to cause nuisance to these defendants and to
harass them and forcibly received Rs.19,55,000/- on
various dates as mentioned above. The plaintiff is not
entitled to claim the said amount. Inspite of having no
manner of the right by taking the advantage of the
position, the plaintiff collected the amount which is
liable to be refunded by the plaintiff. As per the Joint
Development Agreement, deed of declaration and
other documents, the plaintiff has no manner of rights
in order to claim the ownership over the aforesaid
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property. Therefore, the plaintiff is liable to refund the
amount of Rs.19,55,000/- received by him by using
the force, threat and coercion from these defendants
at the rate of 18% per annum from the dtae of
respective payments till realisation.
These defendants have paid the aforesaid
amount due to force and illegal methods adopted by
the plaintiff by pressuring these defendants.
The cause of action for the counterclaim arose on
29/7/2017, the date on which the Memorandum of
Understanding came to be entered and these
defendants have paid a sum of Rs.7,25,000/- to the
plaintiff on 6/2/2018, the date on which the
defendants have paid a sum of Rs.12 lakhs to the
plaintiff and thereby not allowing these defendants to
sell the flats purchased by him though he is not
entitled to any amount in respect of that flats. In the
light of the above facts, these defendants are not liable
to pay any amount to the plaintiff. Accordingly,
prayed to dismiss the suit with exemplary cost and to
allow the counterclaim in the ends of the justice.
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5. After filing of the counterclaim the plaintiff
has filed his rejoinder and contended that the
averments stated in the counterclaim as well as para
no.40 of the written statement is baseless and
absolutely false.
The plaintiff submits that he entered into a Joint
Development Agreement with SV Constructions and
Developers in order to put up the constructions over
the property belonging to them. Pursuant to the Joint
Development Agreement the developer has put up
only 70% of the construction and failed to complete
the building. The plaintiff constrained to cause the
notice to the developer and thereafter a suuit in
O.S.1612/2016 has been filed. During the pendency
of the suit, the defendants entered into the agreement
with the developer in order to purchase the developers
share of the apartment negotiated for amicable
settlement. Accordingly a Memorandum of
Understanding dated 1/12/2017 was entered into
between the plaintiff and developer identifying the
flats falling to the share of the respective parties.
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These defendants amicably settle the terms with the
plaintiff and agreed to pay Rs.30 lakhs to the plaintiff
being the compensation due to delay in completion of
the work. Much prior to the memorandum of
understanding the defendants who took active part
and responsibility to settle the dispute paid
Rs.5,75,000/- on 29/7/2017 and after the
Memorandum of Understanding understanding dated
1/1/2017 paid a further sum of Rs.1,50,000/-.
Believing the versions of the defendants, the plaintiff
withdraw the suit against the developer. Once again,
in continuation of the concluded contract, an
Memorandum of Understanding dated 6/2/2018 has
been entered between the defendants and the plaintiff
under which the defendant agreed to pay a Rs.30
lakhs to the plaintiff. The defendants have paid only
Rs.13 lakhs and further agreed to pay Rs.9,75,000/-
after the completion of the sale transaction or by
finance from the date of Memorandum of
Understanding.
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The defendants have sold two apartments that
have been purchased by them flat no.F1 is yet to be
sold, plaintiff requested the defendants to pay the
balance of Rs.10,25,000/- in the terms of the
Memorandum of Understanding as the five months
period undertaken by them has already expired. The
defendants went on postponing the issue and failed to
pay the balance. The plaintiff was constrained to issue
a notice on 1/9/2018 calling upon the defendant to
pay the balance amount. The defendants caused a
frivolous reply and hence the plaintiff filed this suit.
The Memorandum of Understanding dated 6/2/2018
is lawful and binding on the defendants. The
defendants have specifically undertaken to pay the
same by paying certain amounts. A false counterclaim
has been set up by the defendants to defeat the rights
of the plaintiff on baseless and frivolous ground.
There is absolutely no cause of action for the
counterclaim. Accordingly, prayed to dismiss the
counterclaim in the ends of the justice.
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6. On the basis of the pleadings of the parties,
the following issues are framed for consideration:
(1) Whether the plaintiff proves that he is
entitled for a sum of Rs.10,25,000/- with
interest at the rate of 18% per annum from
the defendants as per the memorandum of
understanding dated 6/2/2018?
(2) Whether the defendants prove that he is
not liable to pay any amount to the
plaintiff?
(3) Whether defendants prove that the suit of
the plaintiff is bad for want of cause of
action?
(4) Whether the defendants are entitled to the
counterclaim as claimed in the suit?
(5) Whether plaintiff is entitled for any reliefs
as sought for?
(6) What order or decree?
7. Plaintiff in order to prove his case, got
examined himself as PW.1 and got marked Ex.P1 to
Ex.P18 and closed his side of evidence. On behalf of
the defendants, second defendant is examined as
DW.1 and got marked Ex.D1 to Ex.D4 through PW.1
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in the cross-examination. For the purpose of the
Court, Ex.C1 is marked.
8. Heard the arguments for plaintiff and
perused entire records of the case.
9. My findings on the above issues are as
under:
Issue No.1) ............ In the negative;
Issue No.2) ............ In the affirmative;
Issue No.3) ............ In the affirmative;
Issue No.4) ............ In the affirmative;
Issue No.5) ............ In the negative;
Issue No.6) ............ As per final order for
the following:
10. ISSUE NO.1 AND 2: It is the case of
the plaintiff that, in view of the memorandum of
understanding entered between the parties dated
6/2/2018, the defendant is still liable to pay an
amount to the tune of Rs.10,25,000/- to the plaintiff.
In support of his case, he has produced Ex.C1 which
is the Memorandum of Understanding entered
between the parties with respect to the said amount.
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11. The learned counsel for the plaintiff
vehemently contended that the contents of the
Memorandum of Understanding is admitted by the
defendants in the cross-examination. Therefore, no
doubt the defendants are liable to pay the remaining
balance amount of the suit claim as per the Ex.C1.
12. In support of the contentions of the
plaintiff, he has narrated with regard to the cross-
examination of the DW.1 with regard to the Ex.C1. In
the cross-examination dated 11/2/2022, he has
clearly admitted that, "Now I am looking the
document styled as deed of Memorandum of
Understanding entered between Kodanda and
Manjula. After seeing the last page of that
document, I cannot identify the signature of
either myself Kodanda or Manjula. The same is
marked as Ex.C1 for the purpose of the Court."
13. Though DW.1 did not identify his signature
in Ex.C1 document and further stated that he cannot
state the Memorandum of Understanding stated in his
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written statement dated 6/2/2018 itself is Ex.C1, he
admitted that, the payments stated in Ex.C1 are the
payments which he has stated earlier. He further
admitted that, as per Ex.C1 only, Rs.17,25,000/- are
paid in favour of Kodanda, and further DW.1 clearly
admitted that there is a recital in Ex.C1 that
Rs.7,95,000/- is to be paid in favour of Kodanda by
DW.1 himself.
14. Though from these admissions, the learned
counsel for the plaintiff vehemently contended that
the Memorandum of Understanding dated 6/2/2018
is proved, it is not completely proved by the party. The
burden is on the plaintiff to prove the Ex.C1 and its
execution voluntarily, without force, without
compulsion and without any fraud, collusion and
misrepresentation from the side of the defendants as
on the date of execution of the document.
15. The learned counsel appearing for t he
defendant specifically contended that even in the
written statement the defendants have specifically
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taken the defence that whatever the payments made
to the plaintiff is under the collusion,
misrepresentation from the side of the plaintiff. So,
Ex.C1 is not proved by the plaintiff. In support of his
contentions, he has produced some of the documents
to show that plaintiff managed to obtain the said
amount from the defendants. Ex.D1 is the letter
issued by the Kodanda to Manjula Venkatesh
undertaking that he will not create any problem with
regard to the rate, disposal of the flats in the aforesaid
address. Further, he clearly admitted that, he will not
misguide the buyers or the clients who came to the
flats in the above mentioned address. DW.1 clearly
identified his signature in Ex.D1 which is marked as
Ex.D1(a) from this Court. In the same way, Ex.D2 is
the complaint filed against the developer G.Satish
Naidu of S.V.Constructions and builders. This is the
complaint filed by the plaintiff against the developer to
the Inspector of Sanjaynagar police contending that
the said developer has not completed the construction
work even after the lapse of the time mentioned in
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joint venture agreement. Ex.P17 is another complaint
filed by Kodanda against Satish Naidu, Vikram,Vivek,
Tirumalakumar who are the defendants in the above
case with respect to the non-completion of the
construction work. Ex.P18 is the acknowledgement
issued by the police with respondent to Ex.P17.
16. As per the defendants, though they have
paid the amount to the plaintiff, it is due to his
torture and due to his force and not they are the
voluntary payments made by the defendants.
17. Actually, there is no dispute with regard to
the both the parties with regard to the ownership of
the plaintiff over the suit schedule property and
entering of the Joint Development Agreement with one
Satish Naidu who is the developer of
S.V.Constructions and developers. As per the Joint
Development Agreement, Satish Naidu has to
complete the constructions within the stipulated
period of 15 months from the date of handing over of
the said property to the developer. However, even after
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the completion of the 15 months, the construction
was not completed, in the meanwhile there are some
differences arose between the plaintiff and the
developer Satish Naidu with regard to the Joint
Development Agreement and completion of the work.
A notice was sent by the plaintiff informing that, only
70% work has been done and the remaining work has
to be complete as expeditiously as possible. However,
even after the legal notice, the developer did not
complete the construction work. A suit was filed in
O.S.1612/2016 by the plaintiff against the developer.
However, it came to the knowledge of the plaintiff that,
the developer has executed some agreement of sale in
favour of the defendant under the registered
agreement of sale in respect of the flats belongs to the
share of the developer.
18. It is pertinent to note here that, in para
no.12 of the plaint averments, the plaintiff has
categorically admitted that 'The plaintiff came to
know that the developer has executed agreement
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of sale in favour of the defendant under the
registered Sale Agreement in respect of the flats
belongs to the share of the developer.' So,
whatever the flats which are sold in favour of the
defendants are the flats belongs to the share of
developer and not plaintiff. According to the plaintiff,
the developer has no right to execute the agreement of
sale in favour of the defendants since the developer
has no right, title and interest over his 50% share of
the property. Now the question is whether the
developer has executed a agreement of sale in favour
of the defendants with respect to the shares of the
plaintiff or whether the agreement of sale was
executed with respect to the flats which belongs to the
share of the developer. In the plaint averments itself,
plaintiff has categorically stated that the developer
has executed agreement of sale in favour of the
defendant under the registered agreement of sale in
respect of the flats belongs to the share of the
developer. So, as per the plaintiff itself, the developer
has executed the agreement and executed sale deeds
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with respect to his shares. This right is given to the
developer as per the Joint Development Agreement
itself.
19. This aspect is further clear in the Joint
Development Agreement produced by the plaintiff
which is marked as Ex.P9. In clause No.11.1 of Joint
Development Agreement, it is clearly mentioned as
follows:
"The owner / first party hereby give his
express consent that the developers/ second
party will be entitled to enter into
agreements with the prospective purchasers
to sell or lease, for up to 50% undivided
share in the land rents in the schedule
property of the developer / second party's
share and the developers / second party will
also be entitled to enter into construction
contracts with prospective purchasers of the
undivided share in the land and receive sale
price and cost of construction without
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rendering any accounts to the owner / first
party.
20. The above clause is very clear that the
developer has the right to execute agreement as well
as sale deeds or lease deed with respect to his share.
When plaintiff himself admits that the developer has
executed agreement with respect to his share, why he
has to prevent the developer or to give trouble to the
defendants contending that he is also having the
rights in properties sold in favour of the defendants.
No doubt, the plaintiff has not produced the sharing
agreement and further contended that the completion
work is not completed, however there is no clause in
the Joint Development Agreement restrains the
developer from executing Sale Agreements, sale deeds
as well as the lease deed in favour of the third party.
In order to facilitate the act of Sale Agreement as well
as sale deed, a general power of attorney was also
executed in favour of the developer wherein clause 4
(c) and (d) clearly shows that the plaintiff himself
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given the right to the developer "to transfer and
convey by way of absolute sale the 50% undivided
share of the rights along with the residential unit
to be constructed in the schedule property falling
under the share of M/s S.V.Constructions and
Developers or any portion or share thereof and
execute necessary deals of the share or
conveyance in favour of the intending
purchasers / transferees and do everything
necessary for completing the sale/ conveyance /
transfer of the same including the execution of
the sale deeds, presentation of the sale deeds and
admitting the execution thereof as well as to sign
and to execute all the forms, affidavits,
applications, statements, declarations, forms,
returns.'
'To receive the consideration of the sale,
transfer, conveyance as also advances, earnest
money deposits, part payments and balance
payments in regard to the sale, conveyance/
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transfer of the rights with respect to 50% of the
share along with the residential unit to be
constructed in the schedule property falling under
the share of M/s S.V.Constructions and
Developers or portions/ shares therein and issue
receipts and acknowledgements therefore.'
21. So, the plaintiff himself delegated the
powers in favour of the developer to execute the
documents in favour of the third party and a general
power of attorney is also executed to that effect which
includes the salable rights and also to receive
consideration. Nowhere in the Joint Development
Agreement, it is mentioned that, without the sharing
agreement or without the completion of the
construction work, the agreements cannot be
executed in favour of the third party. So, as per the
opinion of this Court, whatever the documents
executed in favour of the defendants from the side of
the developer is as per the contents of the Joint
Development Agreement and power of attorney only.
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22. When plaintiff himself admitted that the
developer has executed documents and sold
properties in favour of defendants with respect to his
share only, the plaintiff has no right to object it nor
has the right to give complaints to the defendants as
well as others by harassing them. No doubt, only
because of this harassment, Ex.C1 has been entered
into between the parties. Though the defendants have
made the payments under the Ex.C1 in favour of the
plaintiff, it is clear that, whatever the payments made
by them to the plaintiff is under the compulsion of the
plaintiff. Because, as per the plaintiff's averments
itself, the plaintiff has got no right over the property
sold in favour of the defendants, because those
properties are the shares of the developer.
23. Even in the cross-examination of the PW.1,
he has deposed that on the basis of the general power
of attorney executed by plaintiff in favour of Satish
Naidu a registered sale deed is executed on 1/1/2018
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with respect to S2 apartment in favour of the
defendant no.2.
24. On perusal of all the sale deeds as well as
Sale Agreements produced by the plaintiff which are
marked from Ex.P11 to Ex.P15 documents, it is clear
that all these documents are executed after the
execution of the Joint Development Agreement as well
as after the execution of the general power of attorney.
It is further clear in Ex.P16 which is the information
or request letter issued by the plaintiff in favour of the
defendant that the defendants have purchased 50%
share of builders portion only. So, this also
strengthens the case of the defendants that the
plaintiff who is having no rights over the portions of
the developer, has forced the defendants to execute
Ex.C1 and to extract money from them.
25. As per the Indian Contract Act, all the
agreements are contracts if they are made by the
free consent of the parties competent to contract,
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for a lawful consideration and with a lawful object
and not hereby expressly declared to be void.
26. Section 10 of the Act is very clear in that
regard. So, if at all an agreement is to be valid
agreement or a contract is to be valid contract, then
free consent of the parties is also necessary. It is
further important to note here that, the word consent
is defined under Section 13 of the Act. Two or more
persons are said to be in consent when they agree
upon the same thing in the same sense. Further, the
word free consent comes under Section 14 of the
Indian Contract Act, wherein it is defined as follows:
"Consent is said to be free when it is not
caused by -
1) Coercion as defined in Section 15 or;
2) Undue influence as defined in Section 16;
or
3) Fraud as defined in Section 17;
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4) Misrepresentation as defined in Section
18; or
5) Mistake; subject to the provisions of
Section 20, 21 and 22.
27. So, in order to contend that, there is valid
agreement between the parties, the party has to prove
that the agreement entered between the parties is out
of the coercion, undue influence, fraud,
misrepresentation and mistake and they should agree
upon the same thing in the same sense.
28. If we come to the present case from the
beginning of the case itself, the defendants are
contending that, they have made the payment under
Ex.C1 under the threat of, under the
misrepresentation of the plaintiff. The threat as well
as misrepresentation is clear since the plaintiff has
already filed series of the complaints against the
defendants and the developers. Further,
misrepresentation is established by the conduct of the
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plaintiff though he specifically alleges that, the
property sold in favour of the defendants are not
allotted to his share, he specifically made believe the
thing as true that he is the owner of those properties
sold in favour of defendants.
29. Clause No.1 o f Section 18 of the Indian
Contract Act clearly says the word 'misrepresentation'
means and includes -
"The positive assertion in a manner not
warranted by the information of the person
making it, of what which is not true, though he
believes it to be true."
30. So, in the present case, the plaintiff though
in his pleadings as well as in the request letters
specifically contended that, the properties sold in
favour of the defendants are the shares allotted in
favour of the developer, he by his conduct, by his act,
by giving the complaints against the defendants made
them to believe as he has the rights over the
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properties which are already sold in favour of the
defendants. Therefore, applying Section 18 as well as
Section 14 of the Indian Contract Act, it is clear that
eventhough as per the Ex.C1 only, the part payments
have been made in favour of the plaintiff, those
payments were made only by the misrepresentation of
the plaintiff and not with the free consent which is
mandatory under the Indian Contract Act. Therefore,
the defendants are not liable to pay any further
amount to the plaintiff.
31. So, in this case, Ex.C1 although entered
between the parties, it is entered between the parties
on the basis of the misrepresentation, on the basis of
the coercion and on the basis of fraud played by the
plaintiff over the defendants. Though the part
payment has been made by the defendants in favour
of the plaintiff, which was admitted by DW.1 itself, it
itself does not mean that Ex.C1 is proved.
32. As per the Contract, Act, a contract is to be
valid only if it is entered between the parties without
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force, with valid consent, without misrepresentation,
fraud and coercion from the side of the party who has
executed that agreement along with the other side. As
rightly contended by the defendant in this case also,
the plaintiff who is having no rights over the sold
properties threatened the defendants contending
that, he is having the rights in the property sold in
favour of the defendants, although it is the share
allotted in favour of the developer. From the pleadings
of the plaintiffs and from the request letter filed by the
plaintiff in favour of the defendants, it is much clear
that whatever the properties sold in favour of the
defendants are the shares allotted in favour of the
developer.
33. Merely because the part consideration has
been passed in favour of the plaintiff, the plaintiff
cannot contend that he is entitled to the amount of
Rs.10,25,000/- from the defendants as per Ex.C1.
Unless and until Ex.C1 is proved, the plaintiff is not
entitled to the relief as claimed in the suit.
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34. The learned counsel for the defendants
vehemently contended that, original of the
Memorandum of Understanding between the parties is
not produced before the Court and further in order to
admit Ex.C1 in the evidence, the provisions under
Section 65 and 66 of the Indian Evidence Act are not
complied by the plaintiff. No doubt, whenever a
document is not original or it is a copy of the
document, then if at all the party who want to rely
upon it as to act as per the provisions of Section 65
and 66 of Indian Evidence Act. However, even if the
party comply such provisions, it does not mean that,
that document is proved. The admissibility of a
document in the evidence is entirely different from
proving of a document from the side of the party. In
the present situation, the Court is of the considered
view that, on the basis of the admissions of DW.1, it
cannot be held that Ex.C1 has been entered between
the parties. DW.1 admitted only the part payment and
not entire document. Further he clearly deposed that,
all the payments are made to the plaintiff under the
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compulsion only. Therefore, on perusal of the
documents produced by the defendants such as police
complaints, private complaints before different courts
and further the pendency of another suit are clear
enough to show that the plaintiff has used his force in
order to obtain Ex.C1 from the defendants. The
arguments canvassed by the advocate for the plaintiff
that an handicapped plaintiff who is having only one
eye cannot force or threaten the defendants in order
to execute Ex.C1 cannot be taken into consideration
here because the plaintiff himself admitted that the
property sold in favour of the defendants are the
portion allotted in favour of the developer. Therefore,
whatever the payments made in favour of the plaintiff
under Ex.C1 is only by force of the plaintiff and
therefore he is not entitled to the remaining sum of
Rs.10,25,000/- with interest at the rate of 18% as per
the Memorandum of Understanding dated 6/2/2018.
Thereby, I answer Issue No.1 in the negative and
Issue No.2 in the affirmative.
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35. ISSUE NO.3: In para no.24 of the written
statement, the defendants have categorically
contended that, the cause of action pleaded by the
plaintiff is imaginary one which came to be pleaded
only with an intention to file the present suit which is
otherwise a false and frivolous suit.
36. As per the submissions of the plaintiff and
on perusal of the entire averments of the plaint, it is
clear that, the entire basis for filing of this suit is the
alleged Memorandum of Understanding dated
6/2/2018. As discussed in Issue No.1 and 2, Ex.C1
though executed in between the parties, it is not
executed with the free consent of the parties. The
plaintiff though not entitled for any amount from the
side of the defendants got executed Ex.C1 for the
purpose of the suit only is clear from the above
discussions. Except Ex.C1, the plaintiff has got no
rights to sue against the defendants. However, in the
entire plaint averments clearly shows that only on the
basis of the part payments made by the defendants,
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he has filed this suit. More over, the developer one
Mr.Satish is not added as a party for the effective
adjudication. Therefore, the court is of the opinion
that the plaintiff has no cause of action against the
defendants in order to institute a suit against them.
Accordingly, I answer Issue No.3 in the affirmative.
37. ISSUE NO.4: At the time of filing of the
written statement itself, these defendants have also
sought for the counterclaim. In the counterclaim
itself, the defendants have categorically stated that
they have paid the aforesaid amount due to the force
and illegal methods adopted by the plaintiffs and by
not allowing them to sell the flats. The entire cause of
action for the counterclaim is the date of
Memorandum of Understanding entered between the
parties i.e, on 6/2/2018. No doubt, the plaintiff as
well as the defendant both admitted that an amount
of Rs.19,25,000/- has been paid in favour of the
plaintiff on the basis of Memorandum of
Understanding dated 6/2/2018. No doubt, from the
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discussions in Issue No.1 and 2, it is clear that,
though the plaintiff has no rights over the properties
of the defendants, he attempted to extract money from
the defendants. The misrepresentation, the force, the
complaints filed by the plaintiff against the defendants
made the defendant to execute the Ex.C1 and also
made them to pay the part consideration in favour of
the plaintiff. Therefore, this Court is of the opinion
that whatever the amount paid in favour of the
plaintiff under Ex.C1 is to be refunded in favour of the
defendants with interest. No doubt, the suit is of the
year 2018, the entire transactions between the
plaintiff and the defendants as per Ex.C1 held on
February 2018, therefore a nominal interest of 6% is
to be imposed in favour of the plaintiff to the amount
of Rs.19,25,000/- which was paid in favour of the
plaintiff from the defendants. Therefore, I answer
Issue No.4 in the affirmative.
38. ISSUE NO.5: From the discussions in
Issue No.1 and2, it is clear that the agreement
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entered between the parties is not with consensus ad
idam. The parties are not on the same sense at the
time of executing Ex.C1. The act of misrepresentation,
the force, threat from the side of the plaintiff to obtain
Ex.C1 is established in Issue No.1 and 2. Therefore,
the Court is of the opinion that he is not entitled to
the any relief as stated in the suit. Accordingly, I
answer Issue No.5 in the negative.
39. ISSUE NO.6: From my above discussions
and reasoning, the suit of the plaintiff is liable to be
dismissed. In the result, I pass the following:
The suit of the plaintiff is hereby
dismissed.
Under the above circumstances, no order
as to costs.
Draw a decree accordingly.
***
[Dictated to the Judgment Writer directly on computer, Script corrected, signed and then pronounced by me, in the Open Court on this the 23 rd day of March 2022.] [PRASHANTHI.G] XXVII Additional City Civil Judge.
BANGALORE.
57 CT0028_O.S._7176_2018_Judgment_.doc
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 Kodanda
2. List of witnesses examined on behalf of the Defendant/s:
DW.1 Vikram. C.V.
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P1 Certified copy of the plaint in O.S.1612/2016.
Ex.P2 Certified copy of the order sheet in O.S.1612/2016.
Ex.P3 Office copy of the legal notice dated 1/9/2018.
Ex.P4 Postal receipts 3 in numbers. Ex.P5 to Postal acknowledgements. Ex.P7 Ex.P8 Reply issued by the defendant dated 6/9/2018.
Ex.P9 Certified copy of the Joint development agreement dated 29/8/2013.
Ex.P10 Certified copy of General Power of Attorney dated 29/8/2013. Ex.P11 Certified copy of the agreement of sale dated 12/2/2014.
Ex.P12 Certified copy of agreement of sale of flats dated 12/2/2014. Ex.P13 Certified copy of the agreement of sale of flats dated 12/2/2014. Ex.P14 Certified copy of agreement of sale of flats dated 14/12/2017. 58 CT0028_O.S._7176_2018_Judgment_.doc Ex.P15 Certified copy of agreement of sale of flats dated 14/12/2017.
Ex.P16 Postal receipts.
Ex.P17 Complaint
Ex.P18 Endorsement
4. List of the documents marked for the
defendants:
Ex.D1 Document dated 13/3/2016
Ex.D1(a) Signature of Kodanda, Land owner
Ex.D2 Complaint given by Kodanda
against G.Satish Naidu dated
4/12/2015.
Ex.D3 Document dated 11/5/2016.
Ex.D4 Absolute sale deed dated
1/1/2018.
5. List of the documents marked for the purpose of the court:
Ex.C1 Deed of memorandum of understanding entered between Kodanda and Manjula.
[PRASHANTHI.G] XXVII Additional City Civil Judge.
BANGALORE.
59 CT0028_O.S._7176_2018_Judgment_.doc 23/3/2022 P-TRR D1 to 3 - RS For Jugment..
...Judgment pronounced in the Open Court....
(Vide separate detailed judgment) The suit of the plaintiff is hereby dismissed.
Under the above circumstances, no order as to costs. Draw a decree accordingly.
[PRASHANTHI.G] XXVII Additional City Civil Judge.
BANGALORE.
6 CT0028_O.S._7176_2018_Judgment_.doc 1 6 CT0028_O.S._7176_2018_Judgment_.doc 2 fdfdf