Karnataka High Court
M/S. G B Enterprises vs M/S. Kempsons Industries on 5 June, 2017
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
REGULAR FIRST APPEAL No.1508/2010(SP-S(J))
BETWEEN:
M/S. G B ENTERPRISES
REP. PARTNERSHIP FIRM
REP. BY ITS PARTNER SMT.BHARATHI H DALAL
AGED MAJOR, NO 51, RAJAMAHAL VILAS
EXTENSION , FLAT NO 17, PALACE ORCHARD
APARTMENT , SADASHIVANAGAR,
BANGALORE - 80 ... APPELLANT
(BY SRI.G.KRISHNA MURTHY, SR. ADV. FOR
SRI. K CHANDRASHEKAR ACHAR, ADV.)
AND:
1. M/S.KEMPSONS INDUSTRIES
REGD. OFF NO 49, RICHMOND ROAD,
BANGALORE - 560 025
REP. BY ITS MANAGING PARTNER
2. SRI B K SRINIVASAN SINCE DEAD BY LR'S
2A) A.SRI JAGATHRAM S/O LATE B K SRINIVASAN
AGED 57 YEARS
R/AT KEMPSON FARM
MYSORE ROAD, BANGALORE
2B) SRI AJITHRAM S/O LATE BK SRINIVASAN
R/O NO 157, I FLOOR RICHMOND ROAD,
2
BANGALORE 50 025 ... RESPONDENTS
(BY SRI.ARUN PONNAPPA, ADV. FOR C/R2(B);
NOTICE TO R1 IS SERVED AND UNREPRESENTED;
NOTICE TO R2(A) HELD SUFFICIENT)
THIS RFA IS FILED U/S 96 R/W ORDER 41, R1 TO 3 OF
CPC, AGAINST THE JUDGMENT AND DECREE
DATED:03.06.2010 PASSED IN O.S.2179/1994 ON THE FILE OF
THE XXV-ADDL. CITY CIVIL JUDGE, BANGALORE, DISMISSING
THE SUIT FOR SPECIFIC PERFORMANCE.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is plaintiff's appeal in O S No.2179/1994 being aggrieved of the judgment and decree dated 3.6.2010 on the file of XXV Additional City Civil Judge, Bangalore (CCH No.23) dismissing the suit for specific performance of contract.
2. The brief facts of the case are that the defendant No.2 being the owner of the suit schedule property offered to sell the same to meet his financial necessities. The plaintiff agreed to purchase it at Rs.200/- per sq.ft., In confirmation of sale, the defendant No.2 has given a letter signing it as partner of defendant No.1. The plaintiff has been put in possession of the 3 suit flat. The defendant No.2 received Rs.80,000/- from plaintiff through cheque. The plaintiff has been ready and willing to perform its part of the contract to pay balance sale consideration amount and get the sale deed registered. In spite of several demands and requests, the defendant No.2 though initially represented that there is dispute between himself and the developer, he is unable to execute the sale deed, later on he got issued legal notice contending that plaintiff is a tenant. After legal notice was issued claiming the arrears of rent, the plaintiff got issued legal notice for specific performance and filed the suit.
3. The defendants entered appearance and also filed written statement. It is contended, plaintiff's partner Bharathi H Dalal and her husband had approached the defendants along with one Ramachandra to take suit property on lease; there was no question of sale of the suit flat nor there were any talks between plaintiff and defendant No.2. The defendant No.1 has nothing to do with the suit flat. Sri Ramachandra had brought a typed matter representing that suit flat should be allowed to 4 be occupied by Dalal and his wife for obtaining a ration card and Rs.4000/- would be paid as rent. He had in his possession letter head of defendant No.1. On this letter head said matter was typed except the last sentence as defendant No.2 had convinced said Ramachandra he simply signed typed letter dated 1.7.1985. But said Ramachandra has added one sentence by forgery stating that sale is confirmed @ Rs.200/- per sq. ft., The plaintiff in collusion with Ramachandra and husband of Bharathi H Dalal forged the last sentence in the said letter to file this suit to knock off the suit property. The defendants having not received Rs.80,000/- towards alleged sale transaction now there are no documents to show that amount was received by defendant No.2 not from plaintiff but from Ramachandra in respect of some of the flats in the building but not towards suit property. No documents are produced to show that plaintiff occupied the suit premises in part performance. The suit is barred by limitation and plaintiff is not entitled to relief sought for.
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4. On the basis of the above pleadings, the court below framed the following issues:
(1)Does plaintiff prove that 2nd defendant agreed to sell the suit property at Rs.200/- per sq. ft., by executing agreement?
(2)Does plaintiff prove that he had paid Rs.80,000/- to 2nd defendant towards part payment?
(3)Does plaintiff prove that he is in possession over suit property in part performance of sale agreement? (4)Does plaintiff prove that 2nd defendant did not perform his part of the contract even on demand?
(5)Does plaintiff prove that he is ready to perform his part of contract?
(6)Does 2nd defendant prove that plaintiff is tenant and not holder of sale agreement?
(7)Does defendant prove the alleged fraud of plaintiff as per W.S?
(8)Whether there is cause of action of this suit? (9)Whether the plaintiff is entitled to suit reliefs? 6 (10) If so, under what order or decree?
Addl. Issue: Whether the suit is barred by time?
5. The plaintiff examined PWs 1 & 2 and got marked Ex.P1 to P33. One of the LRs. Of the defendant No.2 has been examined as DW-1 and Ex.D1 to D6 are marked.
6. The trial court answered issue Nos.1 to 5 and 9 in the negative and issue Nos.6 to 8 in the affirmative and Additional issue No.1 in the affirmative and dismissed the suit. Being aggrieved, the present appeal is filed by the plaintiff.
7. I have heard the learned counsel for the appellant and respondents and perused the LCR. The learned counsel for the appellant contends that the court below failed to frame proper issues for consideration, none were examined except the LR of defendant No.2(b) to prove the allegation of forgery in Ex.P3. The trial court has unnecessarily relied upon correspondence between the defendant and one Harilal Dallal in 1989 and no document is produced before the court to make reliance of knowledge to the plaintiff partnership firm. The said correspondence between the defendant and any other person is 7 not binding on the plaintiff. The plaintiff received legal notice in 1992 and the denial of the sale transaction was notified by the defendant. Filing of the suit O S No.2179/1994 within 2 years from the date of denial is within the period of limitation and suit is maintainable.
8. The learned counsel for the respondents support the judgment passed by the court below.
9. The point that arises for consideration in the present appeal is, whether the court below has committed error of law in passing the impugned judgment and decree? My answer would be in the negative for the following reasons.
10. The plaintiff contends that defendant No.2 being the owner and representing to be partner of defendant No.1 agreed to sell the suit property in favour of plaintiff and in this regard discussions were finalized between plaintiff partner Bharathi H Dalal, defendant No.2 and one Ramachandra. There is no specific averment regarding there being an agreement entered into between plaintiff and defendant No.2 or anything as to 8 terms and conditions as to the performance of either the purchaser or the seller. It is only averred that sale price is fixed at Rs.200/- per sq. ft., and defendant No.2 in this regard has given letter signing it as a partner of defendant No.1. There is nothing disclosed in the plaint as to anything regarding the agreement and plaintiff's case is based upon the said letter confirming the sale. Ex.P3 is the said letter and the original thereof is Ex.P14. The defendants have specifically denied as to having agreed to sell the suit property or having confirmed the sale transaction under Ex.P3. It is defendant's further case that Bharathi H Dalal, her husband and Ramachandra colluded and the last sentence in Ex.P3 to the effect that sale is confirmed has been interpolated by forgery. The defendants contend that the plaintiff is in possession as a tenant. Hence the burden is upon the plaintiff to show that possession was given pursuant to the sale agreement and in part performance but not having come in possession as a tenant. In the written statement it is contended that for the purpose of obtaining ration card Bharathi H Dalal along with her husband and one Ramachandra 9 had requested defendants to give such a letter. The contents of Ex.P3 are as follows:
"This is the confirmation that we have allowed M/s.G B Enterprises to make use of our flat No.17....., Bangalore; we confirm to sell of said flat atk Rs.200/- per sq. ft., From going through the above contents, neither it can be made out from this document that possession was given by virtue of this document on account of lease or that possession was handed over in part performance of contract. The contents of this document do not amount to any terms and conditions agreed to between the parties so as to conclude that it is a sale agreement. There is nothing to show that there are any obligations on either plaintiff or defendant to be performed by the respective party for conclusion of the contract. Therefore, contention of the plaintiff that Ex.P3/Ex.P14 is sale agreement or that this document gives right to seek enforcement of an agreement cannot be accepted. There is no reasonable certainty so as to attract provisions of Section 53-A of the Transfer of Property Act. The defendants though admit first 10 part in the letter, the second part of it as to sale confirmation is denied by them. It is stated that the second part is an interpolation made by the plaintiff. PW-1 has clearly stated in cross-examination that he has not entered into agreement of sale. Consensus-ad-idem is not made out by the plaintiff. The advance amount paid as sought to be contended a sum of Rs.80,000/- is not found in Ex.P3. Ex.P22 is the counterfoil of the cheques and PW-1 contends that defendant No.2 has signed it. Just because the defendant admits receipt of Rs.80,000/- it is not sufficient either to accept payment of part of sale consideration amount or defendants' contention that the same being the arrears of rent. PW-1 in the cross-examination states, he does not know who is the landlord of the premises and he does not remember who is the owner. This leads to doubt as to the correctness of claim as to the nature of the possession of plaintiff in respect of the suit property. PW-1 in the cross-examination admitted that the original contents of Ex.P3 were only to inform that defendants have allowed M/s.G.B. Enterprises to make use of suit flat. Thus regarding confirmation of sale seems to have been added subsequently. 11 The court below has also observed difference in the handwriting in between the first part and second part of the letter. The court below has rightly not placed reliance on Ex.P23, Ex.P25, Ex.P26, Ex.P29 and Ex.P30 reply given by plaintiff at Ex.P24 & P27 as they came into existence only during pendency of the suit.
11. It is to be mentioned here that the plaintiff has to prove that there is valid concluded binding contract and if there is no consensus-ad-idem, relief for specific performance cannot be granted. It is the duty of the plaintiff to discharge the burden to prove that there is a valid binding contract and parties should be consensus-ad-idem in exercising agreement and if there is no clear and certain evidence, no relief for specific performance can be granted. In the present case, there is no meeting of minds before Ex.P3 came into being as to sale of suit property and plaintiff has failed to discharge the burden of proving existence and execution of any sale agreement.
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12. In the circumstances, plaintiff in the instant case has failed to establish valid, binding or concluded contract to seek specific performance.
13. One more ground on which the suit came to be dismissed is that the suit is barred by limitation. Ex.P3 is dated 1.7.1985 whereas the suit is filed in 1994. Under Article 54 of the Limitation Act, the suit for specific performance has to be filed either 3 years from the date fixed for performance or 3 years from the date of refusal to perform and execute sale deed. There is no time fixed under Ex.P3 for performance of the contract. Secondly, issue of legal notice will not either save the limitation nor the time runs till issue of legal notice. It is seen that issue of legal notice Ex.P5 is in January, 1989. Even if it is taken as the refusal, the suit filed in 1994 is barred by limitation.
14. After reconsidering the entire materials, I am of the view that the court below has properly considered the entire facts and evidence in the case and has correctly concluded that the plaintiff has not made out a case for specific performance. 13
15. In the result and for the reasons stated above, the above appeal is devoid of merits and it is accordingly dismissed. Parties to bear their own costs.
Sd/-
JUDGE akd