Bangalore District Court
Sri.M.Preetham Kumar vs Smt.Venkatalakshmamma on 11 October, 2017
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF XXXIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AT BENGALURU CITY.
CCH 33
PRESENT:
Sri. D.Y. BASAPUR, B.Com., LL.B (Spl.)
XXXIII ADDL. CITY CIVIL AND SESSIONS JUDGE
BENGALURU.
DATED: THIS THE 11TH DAY OF OCTOBER, 2017
O.S.No.8519/2016
Plaintiff : Sri.M.Preetham Kumar,
S/o.Babu Achari,
Aged about 46 years,
R/at No.2, Varadhana,
30th Cross, Kilari Road,
Bengaluruthe560 053.
(Rep. by Sri GK., Advocate.)
V/S.
Defendant: : 1. Smt.Venkatalakshmamma,
D/o.thirumalaiah,
Aged 48 years,
R/at.No.-45B,
Janapriya Abodes,
Kenchenahalli,
Bengaluru - 560 098.
Also at:
R/at.No.164,
MIG-C, Building No.8,
Ground Floor, KHB Colony,
Kengeri Satellite Town,
Bengaluru - 560 060.
Also at:
R/at.No.110,
2
K.K.Layout,
Near Ambedkar College,
3rd Cross, Nagarbhavi,
Mallathahalli,
Bengaluru - 560 056.
Date of Institution of the suit: 15.12.2016
Nature of the Suit (Suit for
pronote, suit for declaration
Specific Performance
and possession, Suit for
injunction, etc,) :
Date of the commencement 1.4.2017
of recording of the Evidence:
Date on which the Judgment 11.10.2017
was pronounced:
Total Duration : Year/s Month/s Day/s
- 09 26
(D.Y. BASAPUR)
XXXIII ADDL. CITY CIVIL & SESSIONS JUDGE
BANGALORE.
JUDGMENT
Plaintiff has filed suit for specific performance against the defendant to execute sale deed in terms of agreement of sale dated 7.5.2014 alternatively for refund of earnest money.
CCH-33 3 OS.8519/2016
2. Brief facts of the plaint are as under:
Defendant is the owner of the schedule property. She has entered into agreement to sell the schedule property for a sum of Rs.20 lakhs and executed the agreement of sale on
3.4.2014 and received earnest money of Rs.9,20,000/- on various dates. The defendant agreed to execute the sale deed within 6 months and shall get vacate possession of the schedule property by evicting the tenant and also hand over the original sale deed dated 15.10.2004. Plaintiff is always ready and willing to perform his part of contract. But in spite of the request and notice issued to defendant she did not heed to his request. When this being the fact, defendant lodged false complaint in the month of December 2014. Plaintiff is ready to pay the remaining balance of Rs.10,80,000/-. Hence, filed this suit.
3. In response of service of summons, Defendants appeared through her counsel and filed written statement. 4
4. Brief facts of the written statement filed by defendant is as under:
Defendant admitted the ownership of the schedule property but denied the various allegations in the plaint averments. She has contended that she never entered into agreement of sale of the schedule property and received earned money of Rs.9,20,000/- and agreed to execute the sale deed within 6 months. Defendant contended that she had purchased the suit property from one Sheshadri and since execution of sale deed, the defendant is always being trying to contact Sheshadri to persuade him to hand over the original documents of the schedule property. However, the said Sheshadri who is hand in glove with the plaintiff had colluded and has filed the above suit in order to gain unlawfully. Original documents are in custody of plaintiff. She denied that plaintiff was ever ready and willing to perform his part of contract. Defendant denied that being unable to secure the vacant possession of the schedule property from the tenant and to secure the documents specified in the agreement, defendant is failing to fulfill her part of contract. She never CCH-33 5 OS.8519/2016 lodged complaint against the plaintiff. Hence, prays for dismissal of the suit.
5. On the basis of above pleadings, following issues are framed:-
ISSUES
1. Whether the plaintiff proves that on 7.5.2014 the defendant agreed to sell the schedule property for a sum of Rs.20,00,000/- and received earned money of Rs.9,20,000/-?
2. Whether the plaintiff proves that he was/is ready and willing to perform her part performance of contract?
3. Whether the plaintiff is entitled for the relief?
4. What order or decree?
6. To prove the case plaintiff along with two witnesses got examined as P.Ws.1 to 3 and got marked the documents Exs.P.1 to P.10. On behalf of the defendant, she examined herself as D.W.1 but no documents were marked. 6
7. Heard the arguments on both sides.
8. My findings on the above issues are as under:
Issue No.1: In the affirmative Issue No.2: In the affirmative Issue No.3: In the affirmative Issue No.4: See the final order, for the following:
REASONS
9. Issue No.1: Learned counsel for the plaintiff argued that as per the evidence of P.W.1 to 3 and documents Ex.P1 to P10, plaintiff has proved his case. Learned counsel for the defendant argued that plaintiff is not entitled for any relief as no agreement of sale executed by the defendant.
10. On careful perusal of the material placed before the court, P.W.1 has filed affidavit in lieu of his chief examination and reiterated the contents of the plaint averments. P.W.1 has stated that Defendant is the owner of the schedule property and she entered into an agreement to sell the schedule CCH-33 7 OS.8519/2016 property for a sum of Rs.20 lakhs and executed the agreement of sale on 3.4.2014 and received earnest money of Rs.9,20,000/- on various dates. The defendant agreed to execute the sale deed within 6 months and shall get vacate possession of the schedule property by evicting the tenant and also hand over the original sale deed dated 15.10.2004. plaintiff is always ready and willing to perform his part of contract and ready to pay the remaining balance of Rs.10,80,000/-. But in spite of the request and notice issued to defendant she did not heed to his request. When this being the fact, defendant lodged false complaint in the month of December 2014. In the cross examination of P.W.1 stated that he came to know the defendant when he used to visit advocate office. He denied that he knows Sheshadri and also defendant was introduced through Sheshadri and also litigations between Sheshadri and defendant. So also, denied that he filed this suit on the instigation of Sheshdari. Further, P.W.1 stated that at the time of making payment to the defendant on various dates, 2 agreements were executed and no receipts obtained. As per agreement, defendant received sale 8 consideration on 29.3.2014 Rs.2,00,000/-, on 3.4.2014 Rs.3,00,000/-, on 16.4.2014 Rs.1,20,000/- and on 7.5.2014 Rs.3,00,000/- thus, in all Rs.9,20,000/- paid as earnest money. Finally Ex.P1 executed by defendant on 7.5.2014. When defendant admits the earlier payments and executed Ex.P1, separate receipt or document for previous payments are not required.
11. PWs.2 and 3 attesting witnesses of Ex.P1 have also filed their affidavit stating that defendant agreed to sell the schedule property for Rs.20 lakhs and received earnest money of Rs.9,20,000/- and executed Ex.P1 in their presence at Sub- Registrar office. Defendant put her signature after reading the contents of Ex.P1. P.W.2 in his cross examination stated that defendant used to visit the shop of plaintiff but he personally do not know the defendant. He do not know the boundaries of schedule property and he has not seen the schedule property. When schedule property is not disputed, the question of mentioning the boundaries and seeing of the schedule property is not required. P.W.2 specifically stated that as on the date of CCH-33 9 OS.8519/2016 execution of Ex.P1 plaintiff paid Rs.3,00,000/-. It is also found in the recital of Ex.P1. Further P.W.2 specifically stated that prior to execution of Ex.P1 he was all along present at the time of payment of Rs.6,20,000/- to the defendant. But he do not know the date and month. So the testimony of P.W.2 is corroborated to the testimony of P.W.1 regarding payments on various dates and execution of Ex.P1. P.W.3 has also clearly stated that he was not at all present at the time of previous payments but he was present only at the time of execution of Ex.P1. In the cross examination of P.Ws.2 and 3 nothing is elicited to discard their evidence except suggestions.
12. Ex.P1 reveals that the photos of plaintiff and defendant and specific recital regarding contents of the document read over and admitted by vendor defendant. Ex.P8 EC reveals the name of the plaintiff and defendant. Ex.P10 and 11 capital account for the year ending 31.3.2015, income tax returns for the assessment year 2015-16 reveals that plaintiff shown the amount of Rs.9,20,000/- earnest money paid to the defendant.
10
13. Defendant filed affidavit in lieu of her chief examination and reiterated the contents of the written statement. She admitted the ownership of the schedule property, but denied the various allegations in the plaint averments. Of course, she has stated in her cross examination that her husband Sheshadri executed the sale deed in her favour. But contended that she has not paid the consideration amount to him. Ex.P9 original sale deed handed over by the defendant to the plaintiff at the time of agreement of sale. So, it is clear that as per Ex.P9 sale deed defendant is the owner of the schedule property.
14. She has contended that she never entered into agreement of sale of the schedule property and received earned money of Rs.9,20,000/- and agreed to execute the sale deed within 6 months. Defendant contended that she had purchased the suit property from one Sheshadri and since execution of sale deed, the defendant is always being trying to contact Sheshadri to persuade him to hand over the original documents of the schedule property. However, the said CCH-33 11 OS.8519/2016 Sheshadri who is hand in glove with the plaintiff had colluded and has filed the above suit in order to gain unlawfully. Original documents are in custody of plaintiff. She denied that plaintiff was ever ready and willing to perform his part of contract. Defendant denied that being unable to secure the vacant possession of the schedule property from the tenant and to secure the documents specified in the agreement, she is failing to fulfill her part of contract.
15. So far as agreement of sale Ex.P1 is concerned she admitted her signature but contended that Sheshadri colluded with plaintiff took her to Sub Registrar office stating that original document will be returned to her and induced her to sign on documents by fraud and misrepresentation. Further she has stated in the written statement that it was on the pretext of returning the original documents she was made to sign in the agreement in a hasty manner without even getting a chance to go through the contents of the said sale agreement. Defendant has admitted her signature on Ex.P1 agreement of sale. Whether plaintiff and Sheshadri played 12 fraud and obtained signature by misrepresenting her is to be proved by the defendant. Once she admits the signature and contends that she put her signature without reading the contents of the deed and plaintiff played fraud, burden lies upon her. It is pertinent to note here that, defendant has not pleaded in the written statement that how and on what manner plaintiff played fraud. Mere making allegation without specific denial and specifically pleaded the manner of the fraud or misrepresentation, her defence is not sustainable. In her cross examination, it is stated that she is a BA graduate and she works in the office of an Advocate Chamber as a Typist. She is having the knowledge of agreement of sale. Even she has deposed against her own contents of the written statement. In the cross examination denied that on 8.1.2014 she purchased the schedule property. Again admits that her husband Sheshdari executed Ex.P9 sale deed in her favour. She admits that in the schedule property there exist a house and herself let out the same on lease to one Renukamma for Rs.2,50,000/-. One of the conditions in Ex.P1 is that CCH-33 13 OS.8519/2016 defendant will vacate the tenant within 6 months and then she will execute the sale deed in favour of the plaintiff.
16. She lodged complaint on 10.12.2014 against Sheshdari and plaintiff alleging that Sheshadri played fraud on her and obtained signature. After obtaining certified copy of Ex.P1 she came to know the alleged fraud and police advised her to approach Civil Court. But she has not taken any legal action against Sheshadri and plaintiff.
17. The learned counsel for the plaintiff relied on the following decisions reported in 2006(3) Kar.L.J. 177 (DB) Ranganayakamma and another Vs., KS Prakash (deceased) by LRs., and others, wherein it is held that:
(A) Civil Procedure Code, 1908, Order 6 Rule 4 -
Fraud, misrepresentation, undue influence - Plea of General allegation without particulars, not sufficient - each misrepresentation, its date, and whether it was made in writing or verbally, occasion thereof, must be stated - Requirement of 14 giving particulars is mandatory and object is to enable opposite party to know in advance what case he has to meet - In absence of particulars of fraud, misrepresentation and undue influence, finding of trial court that party voluntarily executed deed of power of attorney and deed of partition merits acceptance.
The facts and circumstances of the above decision is aptly applicable to the case on hand as defendant has not specifically pleaded the manner of misrepresentation or fraud.
(D) Registration Act, Section 17 Indian Evidence Act, 1872, Section 114, Illustration (e) Registered partition deed - plea of invalidity of - plea that partition deed is void for reason that Sub-Registrar while registering deed, had not explained contents of deed to parties - Plea cannot be accepted when evidence on record proves opposite of it - court can presume that Sub-Registrar had performed his duty in accordance with law - when this presumption stands unrebutted, partition deed cannot be held void.
Registration is a Solemn Act and if so other evidence is available the court can presume that the Registrar performed his duty of satisfying himself that the document presented to him for registration was duty executed by the executants CCH-33 15 OS.8519/2016 and the executant was duly and properly identified before him ............ the evidence discloses that the Sub-Registrar did read out and explain the contents of Ex.D6 to the parties at the time of registration. Moreover, a presumption is attached to the final acts done by the Sub-Registrar in the course of registering the document as is discernible from illustration (e) of Section 114 of the Indian Evidence Act, 1872, which remains unrebutted except for a mere assertion by way of self-serving statements of the sisters, that the Sub-Registrar did not read out and explain the contents of the documents, the sisters have placed no legal evidence to substantiate the same. the contention is rejected. The facts and circumstances of the above decision is aptly applicable to the case on hand as Ex.P1 is a registered document executed before Sub-Registrar and also specific recital regarding contents of the documents read over to the defendant.
ILR 2000 Kar 1473 between M/s.Sri guruprasad Vs., Smt.K Padmavathi and others wherein it is held that:-
"Evidence Act, 1872 (Central Act No.1 of 1872) Documents - May be proved by either primary and secondary evidence - Proof execution being a 16 question of fact should be proved by oral evidence by examining a witness who saw the executant signing the document or by Expert Evidence."
The facts and circumstances of the above decision is aptly applicable to the case on hand as PW.s.2 and 3 saw the executants signing on Ex.P1.
(2015) 1 SCC 705 between Zarina Siddiqui Vs., A Ramalingam @ R Amarnathan wherein it is held that:-
"A. Specific Relief Act, 1963 - S.20 Equitable discretionary jurisdiction of court under - discretion must be exercised in accordance with sound and reasonable judicial principles - Exercise of discretion to prevent abuse of process of court - Conduct of parties must be considered - Parties must come before court with clean hands - defendant suppressing material facts and making distorted statements to mislead court -Held on facts, discretion cannot be exercised in favour of defendants by refusing to grant specific performance."
The facts and circumstances of the above decision is aptly applicable to the case on hand as defendant does not come with clean hands and suppresses material facts.
CCH-33 17 OS.8519/2016
18. From the above, oral and documentary evidence, plaintiff has proved that defendant agreed to sell the schedule property and executed Ex.P1. Accordingly, I answer Issue No.1 in the affirmative.
19. Issue No.2: So far as plaintiff ready and willing to perform his part of contract is concerned, plaintiff got issued notice Ex.P2. Ex.P3 postal receipt, Ex.P4 postal acknowledgement reveals that notice is duly served on the defendant. Ex.P5 and 6 postal covers issued to defendant are returned unserved. Ex.P7 reply notice issued by counsel for defendant denying the execution of sale of agreement. P.W.1 specifically stated that in spite of oral and written requests, defendant did not heed to the request and execute the sale deed. Regarding ready and willing is concerned, nothing is elicited in the cross examination of P.W.1 except denial. So, plaintiff proves that he was and is ready and willing to perform his part of contract by paying the balance amount. Accordingly, I answer Issue No.2 in the affirmative. 18
20. Issue No.3: The reasons stated in the above issues, plaintiff proves that defendant had agreed to sell the schedule property and executed Ex.p1 agreement of sale. Of course, plaintiff alternative relief sought is for return of the earnest money. However, the case of the defendant is of total denial. Defendant has not pleaded alternative relief regarding she is ready to return the earnest money as she is not willing to sell her only property. Further, not pleaded that if specific performance is decreed she will be caused injury or hardship.
21. Counsel for the plaintiff relied on a decision reported in 2012 AIR SCW 2674 between Prakash Chandra Vs., Narayan wherein it is held that:-
"Specific Relief Act (47 of 1963) S.20(b) - specific performance denial of relief of Legality - defendant neither raising defence of hardship nor leading any evidence in support - No issue regarding hardship framed by court - denying relief of specific performance of contract of sale on ground of hardship in circumstances would not be proper.
CCH-33 19 OS.8519/2016 The facts and circumstances of the above decision is aptly applicable to the case on hand as no issue regarding hardship framed by court and defendant neither raising defence of hardship nor lead any evidence.
2009 (5) KCCR 3953 between Begur Muniyamma and others Vs., R Ambikapathy wherein it is held that:-
"C. Specific Relief Act, 1963 - Section 20(2) Hardship to defendant - absence of specific pleading and evidence by defendant - The trial court whether is bound to consider the ground of hardship - No. the court held that in the absence of pleading and on the question of hardship to the defendants there is no need for the Trial Court to examine the scope of Section 20(2) of Specific Relief Act."
The facts and circumstances of the above decision is aptly applicable to the case on hand as court is not bound to consider the ground of hardship in the absence of specific pleading and evidence by the defendant.
22. Learned counsel for the defendant relied on the decisions reported in:-
20
1995 AIR 491 & 1994 SCC (4) 18 between Sardar Singh Vs., Krishna Devi, Civil Appeal No.3049/17 arising out of SLP (C) No.32285/2015 between Jayakantham & others Vs., Abaykumar wherein Hon'ble Apex Court held that:-
.........The court is not bound to grant the relief of specific performance merely because it is lawful to do so. Section 20(1) of the Specific Relief Act, 1963 indicates that the jurisdiction to decree specific performance is discretionary. Yet the discretion of the court is not arbitrary but is "sought and reasonable", to be "guided by judicial principles".
The facts and circumstances of the above decisions are not applicable to the case on hand as defendant has not pleaded in written statement regarding hardship, except total denial of Ex.P1.
In Civil Appeal 7385/2013 between Satish Kumar Vs., Karan Singh and another wherein it is held that:-
"8. it is well settled that the jurisdiction to order specific performance of contract is based on he existence of a valid and enforceable contract.
CCH-33 21 OS.8519/2016 Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will not be there even though the contract is otherwise valid and enforceable."
The facts and circumstances of the above decisions are not applicable to the case on hand as plaintiff has made out valid and enforceable contract.
23. For the above, plaintiff is entitled for the discretionary relief of specific performance of contract. Accordingly, I answer Issue No.3 in the affirmative.
24. Issue No.4: In the result, I pass the following:-
ORDER The suit filed by the plaintiff U/O.7 rule 1 R/w.Sec.26 of C.P.C is hereby decreed with cost. 22
Plaintiff shall pay the balance consideration amount within 3 months from today.
Defendant is directed to execute the sale deed in favour of the plaintiff.
If defendant fails to execute the sale deed plaintiff is at liberty to get the sale deed through due process of law.
[Dictated to the stenographer, transcribed and computerised by her, corrected, signed and then pronounced by me in Open Court on this the 11th day of October 2017.] (D.Y.BASAPUR) XXXIII ADDL. CITY CIVIL JUDGE, BANGALORE CITY.
ANNEXURE
1. List of witnesses examined for the:
(a) Plaintiff:
P.W.1 Sri.Preetham Kumar
P.W.2 Venkatesha
P.W.3 Sathyanarayan
CCH-33
23 OS.8519/2016
(b) Defendant :
D.W.1 : Sri.Venkatalakshmamma
2. List of documents exhibited for the:
(a) Plaintiff:
Ex.P.1 Agreement of sale
Ex.P.1(a) Signature of defendant
Ex.P.1(b) Signature of Pw2
Ex.P.1(c) Signature of Pw3
Ex.P.1(d) Signature of Writer
Ex.P.1(e) Signature of purchaser
Ex.P.2 Notice
Ex.P.3 Postal receipts
Ex.P.4 Postal acknowledgment
Ex.P.5 & 6 Postal covers
Ex.P.7 Reply to notice
Ex.P.8 Encumbrance certificate
Ex.P.9 Sale deed
Ex.P10 & 11 IT returns
(b) Defendant:
-Nil-
(D.Y. BASAPUR)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*