Bangalore District Court
Noble Estates Private Limited vs Sri. Vijayakumar on 22 February, 2017
Govt. Of Karnataka
C.R.P.67] TITLE SHEET FOR JUDGMENTS IN SUITS
Form No.9(Civil) AT MAYOHALL UNIT, (CCH-29) BANGALORE.
Title sheet for
Judgment in suits
(R.P.91)
Present: Sri. J.R.Mendonca, B.A.L., LL.B,
(Name of the Presiding Judge)
Dated: This the 22nd day of February, 2017
Original suit No. 25854/2007
Plaintiff:- Noble Estates Private Limited,
No.19 Marshalls Road,
Chennai - 600 112.
Represented by its Director,
Mr. G. Ramasubramanian
(By Pleader : Sri. Shanmukhappa)
V/s
Defendant:- 1. Sri. Vijayakumar,
S/o Mr. N. Ranganathan,
Residing at No.7, Vanavar Street,
Portonova (Parangipettai) South
Arcot District - 608 502.
2. Mrs. Maheswari Ranganathan,
W/o Late Ranganathan, (Kartha of
HUF), Residing at No.5, Vanavar
Street, Portonovo (Parangipettai)
South Arcot District - 608 502.
2 OS.No.25854/2007
3. Mrs. Thilavagavathy Kaliya
Perumal,
W/o Kaliya Perumal,
D/o Ranganathan,
Residing at No.218, Subbaiah
Nagar, Thathanchavadi,
Pondicherry.
4. Mrs. Amsavalli Vaidyanathan,
W/o Vaidyanathan,
D/o Ranganathan,
Residing at No.47, Perumal Koil
Street, Kurinchippadi Post,
Cuddalore District.
5. Ms. Subhashini,
6. Ms. Sivaranjani,
Minor daughters of late Mrs.
Geetha (D/o Ranganathan),
Represented by their grand-
mother Mrs. Maheswari
Ranganathan (2nd Defendant
above).
7. Mrs. Anandi,
W/o Late R. Sarachandran,
Residing at Thambi Pettai,
Kurichippadi Post,
Cuddalore District.
(Pleader by Sri.Mahesh Shivpuji Adv., for D.1,
Sri.BV Adv., for D.2, Sri.Sachan Kumar Adv., for
D.3, D.5 & D.6 deleted, D.4 & D.7 are Ex-parte)
3 OS.No.25854/2007
Date of Institution of the suit 17.4.2007
Nature of the (Suit or pro-note, suit for Declaration and
declaration and possession, suit for Injunction
injunction, etc.)
Date of the commencement of recording of 13.2.2012
the Evidence
Date on which the Judgment was 22.2.2017
pronounced
Year/s Month/s Days
Total duration 09 09 05
JUDGMENT
This is a suit filed by the Plaintiff for the relief of declaration that the Defendants have no right to deal with the schedule properties and they are bound by the terms of the agreement dated: 16.6.1994 and consequently declare that the documents executed by the Defendants in respect of the suit schedule properties are null and void and not binding on the Plaintiff and for permanent injunction restraining the Defendants, their men, their agents or nay persons or persons acting under or through them from encumbering, alienating or creating any charge on the suit schedule properties. 4 OS.No.25854/2007
2. The description of the suit schedule property is as follows:-
SCHEDULE PROPERTIES
1. All that piece and parcel of land described as No.34, Ulsoor Road, Cantonment, Bangalore, Karnataka State below Ulsoor Lake having been purchased by Doc.No.330/1872 measuring on East: 275 ft, West: 251 ft, North:
200 ft, South: 153 ft, of a total extent of 46,945 sq.ft., East: Tank Bund, West: Main Canal, North: Garden of Ekambar Chettiar, South:
Garden of Timma Reddy, in the Office of the Sub-Registrar, Cantonment, Bangalore with water courses, trees and all rights belonging to our reputed to belong to the said property.
2. All that piece and parcel of immovable landed property with buildings covered under Doc.No.681/1872 and described as per document being Garden Property situated at No.35, Ulsoor Road, Contonment, Bangalore bounded within the Sub-Registrar Office, Cantonment, Bangalore of an extent of 64,800 sq.ft. East: Pathekkodi Canal Subbiah's Garden & Palli Road, West: Kasiya Muruth Sahab Garden & Kuppu Chetan Garden, North: Road leading to Kasiya Maruth Sahab Garden, South: Subbiah's 5 OS.No.25854/2007 Garden, in the Office of the Sub-Registrar, Cantonment, Bangalore, with water courses, trees and all rights belonging to or reputed to belong to the said property.
3. All that piece and parcel of building and land at No.73 & 74, Jewellers Street, Cantonment, Bangalore, Karnataka State having been purchased by Doc.No.341/1869 bounded on East: Veendee's own house & Estri (Laundry), Pariyalam Pillai House, West: Jeweller's Street, North: Mandi Thimmiah's House, South:
Shanmukh Mudaliar House, of a total extent of 7791 sq.ft., in the Office of the Sub-Registrar, Cantonment, Bangalore, with water courses, tress and all rights belonging to or reputed to belong to the said property.
4. All that piece and parcel of land described as No.38 Victoria Road, Cantonment, Bangalore, Karnataka State having been purchased by Doc.No.150/1872 measuring East: 114 ft, West: 252 ft, North: 282 ft, South: 231 ft, of a total extent of 46,939 sq.ft., East: Nullah, West: Aplthothiciary Thomson, North: Victoria Road, South: Open ground, in the Office of the Sub-Registrar, Cantonment, Bangalore, with 6 OS.No.25854/2007 water courses, tress and all rights belonging to or reputed to belong to the said property.
5. All that piece and parcel of building described as No.51, St. Johns Road, Cantonment, Bangalore, Karnataka State having been purchased by Doc.No.633/1871, 1872 measuring East: 250 ft, West: 248 ft, North: 615 ft, South: 784 ft, of a total extent of 1,74,175 sq.ft., East: Bed of Ulsoor Tank, West: Parade in front of the Lt. Cavalry House, North: Land, South: No.14 of the plan in the Office of the Sub-Registrar, Cantonment, Bangalore, with all building, water courses, tress and all rights belonging to or reputed to belong to the said property.
6. All that piece and parcel of building described as No.26, Infantry Road, Cantonment, Bangalore, Karnataka State having been purchased by Doc.No.633/1871, 1872 measuring East: 191 ft, West: 200 ft, North: 274 ft, South: 272 ft, of a total extent of 53,371 sq.ft., East: 117 of the Plan, West: Central Street, North:
No.96 of Plan, South: Cross Road & No.98 of Plan in the Office of the Sub-Registrar, Cantonment, Bangalore, with all building, water 7 OS.No.25854/2007 courses, tress and all rights belonging to or reputed to belong to the said property.
7. All that piece and parcel of building described as No.10, Brigade Road, Bangalore, Karnataka State having been purchased by Doc.No.633/1871, 1872 measuring East: 362 ft, North West: 358 ft, South East: (223) ft, South West: 290 ft (46), of a total extent of 1,10,620 sq.ft., bounded on North East: No.38 of said plan, North: Next by a Public Cross Road to the Brigade Drill Ground, South East: Patchand Shoolie, in the Office of the Sub-Registrar, Cantonment, Bangalore, with all building, water courses, tress and all rights belonging to or reputed to belong to the said property.
8. All that piece and parcel of dwelling House and land described as No.10, Cambridge Road, Bangalore, Karnataka State having been purchased by Doc.No.633/1871, 1872 measuring North: 368 ft, South: 368 ft, East: 300 ft, West:
300 ft, of a total extent of 1,10,400 sq.ft., North:
Enclosure No.8, South: Enclosure No.12, East:
Open Ground and Seshachalam's enclosure, West: Public Road & Enclosure No.9, in the Office of the Sub-Registrar, Cantonment, Bangalore, with all building, water courses, tress 8 OS.No.25854/2007 and all rights belonging to or reputed to belong to the said property.
9. All that piece and parcel of land and building adjoining to North side being the property described as No.9, Cambridge Road, Bangalore, Karnataka State having been purchased by Doc.No.633/1871, 1872 measuring East: 240 ft, West: 120 ft, North: 380 ft, South: 30 ft, of a total extent of 36,900 sq.ft., North:
No.10, Cambridge Road, South: Jagpalayam Road, East: Anandiengar's House, West: Mango Tope, in the Office of the Sub-Registrar, Cantonment, Bangalore, with all building, water courses, tress and all rights belonging to or reputed to belong to the said property.
10. All that piece and parcel of land described as Bangalore-Yeshwanthpur Hobli, Matadahally Village Katti Land, Bangalore, Karnataka State, of a total extent of 4 acres 34 guntas bounded on East: Ramaswamy Land/Plot, West: Bandi Card Road/Maundalagiyappa's Plot/land, North: Our land and Chikkarangaiah's & other, South: Muniappa's land, in the Office of the Sub-Registrar, Bangalore North, with water courses, tress and all rights belonging to or reputed to belong to the said property. 9 OS.No.25854/2007
11. All that piece and parcel of land described as Bangalore Taluk, Matadahally Hobli Grama M.R.Palya Khata No.21 - Kushi Land, Bangalore, Karnataka State, of a total extent of 5 acres 21 guntas, East: Ramaswamy Land, West: Road, North: Annaiah's, South:
Venkataswamy Land, in the Office of the Sub- Registrar, Bangalore South with all land, water courses, tress and all rights belonging to or reputed to belong to the said property.
12. All that piece and parcel of agricultural lands of an extent of 901 acres in Byelakare Village, Neelamangala Taluk, Nandhidoorgh Division, Bangalore District, covered in the Revenue Secretary's Locket No.886/R 148 dated: 11.6.1879.
13. All that piece and parcel of land described as No.3, Ulsoor Road, Cantonment, Bangalore, Karnataka State having been purchased by Doc.No.949/1911/1912 measuring East: 430 ft, West: 393 ft, North: 180 ft, South: 495 ft, of a total extent of 1,38,881 sq.ft., bounded on East: Gopal Iyengar's property, West: Sundara Chetty House, North: Ulsoor Road, South: Singaravelu Mudaliar House in the Office of the Sub-Registrar, Cantonment, 10 OS.No.25854/2007 Bangalore, with water courses, tress and all rights belonging to or reputed to belong to the said property.
14. All that piece and parcel of land along with building thereon situated at No.2, Dickenson Road, Cantonment, Bangalore, within the limits of Office of the Sub-Registrar, Shivaji Nagar, Bangalore.
15. All that piece and parcel of land along with buildings thereon situated at No.79, St. John's Road, Cantonment, Bangalore, within the limits of Office of the Sub-Registrar, Shivaji Nagar, Bangalore.
16. All that piece and parcel of land along with buildings thereon situated at No.22, Ulsoor Road, Cantonment, Bangalore, within the limits of Office of the Sub-Registrar, Shivaji Nagar, Bangalore.
17. All that piece and parcel of land of an extent of 6.31 acres situated at Doddaballapur Taluk, Bangalore within the limits of Office of the Sub-Registrar, Doddaballapur Taluk, Bangalore.
18. All that piece and parcel of land of an extent of 5.19 acres situated at Srinivasapuram 11 OS.No.25854/2007 Village, Doddaballapur Taluk, Bangalore, within the limits of Office of the Sub-Registrar, Doddaballapur Taluk, Bangalore.
3. The brief facts of the case of the plaintiff are as follows:-
The Plaintiff entered into an agreement dtd: 16.6.1994 with Mr. N. Ranganathan, the father of the 1st Defendant, Mr.Sarachandrann brother of the 1st Defendant and Mr. Vijaya Kumar 1st Defendant. In terms of the agreement the Plaintiff has exclusive power to deal with several properties including the schedule properties and to manage/develop, sell, lease/vacate unauthorized occupants/tress-passers. The properties are claimed to have been owned by Mr.N.Ranganathan, Mr.Sarachandran and the 1st Defendant as the sole legal heirs of the late Mysore Venkataswamy Chetty, Muthuswamy Chetty and Rao Bahadur Govindha Chetty. They have also executed a General Power of Attorney authorizing the nominee of the Plaintiff M/s Shelter India Holdings Private Limited to deal with the properties including the schedule properties. The Plaintiff had invested and identified some of 12 OS.No.25854/2007 the properties and spends considerable time and resources for this purpose even before the execution of the agreement. The Plaintiff has also taken services of legal experts and other agents and also established an office in Bangalore for this purpose.
a. On and from the time of execution of the agreement the Plaintiff shall have exclusive powers to deal with the properties over which the said Mr. N. Ranganathan, Mr.Sarachandran and the 1st Defendant had acquired right, title and interest by inheritance or otherwise.
b) The Plaintiff is entitled to nominate any person of the Plaintiff's choice to carryout the work or in part or in full undertaken by the Plaintiff.
c) The said Mr. N. Ranganathan, Mr.Sarachandran and the 1st Defendant would grant a power of attorney in favour of the Plaintiff or its nominees, representatives of the Plaintiff to carry out the obligations and the duties of the Plaintiff.
d) The said Mr. N. Ranganathan, Mr.Sarachandran and the 1st Defendant would hand over all the documents which 13 OS.No.25854/2007 are in their possession in respect of their properties to the Plaintiff and from time to time furnish all such information and also hand over all such documents which come into their possession and also hand over all such documents which come into their possession to facilitate the Plaintiff to discharge their duties and obligations under the said agreement.
e) The said Mr. N. Ranganathan, Mr.Sarachandran and the 1st Defendant, bind themselves to enter and execute any further agreements, supplemental agreements as and when required by the Plaintiff to enable the Plaintiff to discharge the duties and obligations under the said agreement.
f) The said Mr. N. Ranganathan, Mr.Sarachandran and the 1st Defendant shall share the proceeds/income or any revenue generated from out of the properties in cash or kind, after deduction of expenses, in the ratio 30% to the said Mr.N.Ranganathan, Mr.Sarachandran and the 1st Defendant and 70% to the Plaintiff.
g) They will not enter into any agreement with third party in respect of the properties or act in any manner, which 14 OS.No.25854/2007 will result in alienation or encumbering the properties belonging to them.
h) That the properties belonging to them shall be developed, sold, leased and brought into account only by the Plaintiff or its nominees exclusively.
It is stated that the Plaintiff has entered into the said agreement based on the following representations and the offer made by the said Mr. N. Ranganathan, Mr.Saraschandran and the 1st Defendant to him.
a) That Mr. N. Ranganathan, Mr. Saraschandran and the 1st Defendant constituted a Hindu undivided family with N. Ranganathan as kartha.
b) That they have succeeded to the estate of Late Mysore Venkataswamy Chetty, Muthuswamy Chetty and Rao Bahadur Govindha Chetty and all other claiming under or through them, as legal heirs/descendants.
c) That the estate of the Late Mysore Venkataswamy Chetty, Muthuswamy Chetty and Rao Bahadur Govindha 15 OS.No.25854/2007 Chetty to which have succeeded, comprises of vast and various extents of immovable properties.
d) That they have not able to manage properly and put into account the said properties, due to lack of financial resources as well as managerial staff and necessary experience.
e) Requesting the Plaintiff to assist them to properly manage/develop, sell, lease/vacate unauthorized occupants/tresspasses, negotiate with tenants and obtain revised rentals/vacate possessions, set a side illegal claims, etc., to the properties made by them.
4. The Plaintiff has stated that the Defendants have no power to deal with the properties including the schedule properties without the consent and knowledge of the Plaintiff. The power of attorney is executed in favour of the nominee of the Plaintiff which is coupled with interest and also the agreement dtd: 16.6.1994 has not been cancelled. It cannot be cancelled in view of the fact that the Plaintiff and its nominee, including associate companies and buyers have invested huge sums, approximately Rs.3,00,00,000/-. 16 OS.No.25854/2007 Therefore, the Defendants have no right to deal with the plaint schedule properties. The Plaintiff has stated that the Mr. N. Ranganathan, Mr.Sarachandran and the 1st Defendant were not aware about the exact location of the said properties. In view of the fact that they have shifted from Bangalore to their native place long back. In view of the vast developments that have taken place in Bangalore City, the Defendants could not able to identify the properties and a number of properties have been encroached by the unauthorized occupants. The Plaintiff has identified the several properties and has been working on these for more than ten years. The nominee of the Plaintiff and the power of attorney holder M/s Shelter Indian Holding Private Limited has entered into several sale agreements in respect of the properties and third party interest have already been created. The efforts made by the Plaintiff suffered a set back due to Mr.N. Ranganathan and Mr. Sarachandran who were fallen sick. Mr. N. Ranganathan passed away on 3.3.2004 and Mr. Sarachandran passed away on 29.8.2006. The Defendant No.2 is the widow and Defendant Nos.3 and 4 are the daughters and the Defendant Nos.5 and 6 are the grand- 17 OS.No.25854/2007 daughters of Mr. N. Ranganathan. The Defendant No.7 is the widow of Mr. Sarachandran.
5. In the year 2006 the Plaintiff came to know that Mr.N.Ranganathan, Mr.Sarachandran and the 1st Defendant by suppressing the fact of execution of agreement dtd: 16.6.1994 and the power of attorney have executed the agreement of sale in respect of the properties identified by the Plaintiff to the third parties. The Plaintiff has stated that the Clause-9 and 10 of the agreement dtd: 16.6.1994 prohibits Mr.N.Ranganathan, Mr.Sarachandran and the 1st Defendant from dealing with the properties directly and independently without the knowledge and consent of the Plaintiff. The Plaintiff has now came to know that the Defendant Nos.1 to 4 are now contemplated to sell the schedule properties to defeat the rights and claims of the Plaintiff. Therefore, the Plaintiff has prayed to decree the suit.
6. The Defendant Nos.1 to 3 have appeared through their counsels and Defendant Nos.1 and 3 have filed their written statements. The Defendant Nos.4 and 7 have not appeared inspite of service of summons. Hence, they were 18 OS.No.25854/2007 placed ex-parte. The Defendant Nos.5 and 6 were deleted as per order dtd: 18.4.2007.
7. In the written statement filed by the Defendant No.1 he has stated that the suit filed by the Plaintiff is not maintainable. It is speculative in nature. The agreement dtd:
16.6.1994 is speculative in nature and the same cannot be construed. The alleged agreement is not an agreement with free consent, but as a result of inducement by the Plaintiff, the Plaintiff is a company and cannot taken either hold or possess the lands described in the schedule to the alleged agreement dtd: 16.6.1994 as there is a prohibition under the Karnataka Land Reforms Act. The 1st Defendant has stated that the signatures in the alleged agreement are not of Mr. N. Ranganathan, Mr.Sarachandran and the 1st Defendant. It is not admitted by the 1st Defendant that there is such agreement executed by him and late Mr. N. Ranganathan, Mr.Sarachandran. The Plaintiff has to prove the due execution of the agreement. The Defendant No.1 has stated that the Plaintiff by inducement and fraud got executed the General Power of Attorney by Mr. N. Ranganathan, Mr.Sarachandran 19 OS.No.25854/2007 and the 1st Defendant in favour of M/s Shelter India Holdings Private Limited. The said General Power of Attorney has been duly cancelled by Mr. N. Ranganathan, Mr.Sarachandran and the 1st Defendant by virtue of the registered cancellation deed dtd: 13.9.1996. The Defendant No.1 has denied that the Plaintiff has invested the amount in pursuance of the said agreement. The Defendant No.1 has denied all the other allegations in the plaint. Therefore, the Defendant No.1 has prayed to dismiss the suit.
8. The Defendant No.3 in her written statement has also stated that there is no legal relationship of the Plaintiff with the Defendant No.3. The 3rd Defendant is not party to any agreement. The suit is not maintainable. The suit is bad for mis-joinder of parties. The 3rd Defendant has derived her rights as the legal heirs of Mr.Ranganathan in the suit schedule properties, since she is the daughter of Mr. Ranganathan, she is one of the legal heir and successor of Mr. Ranganathan. The agreement is void and the Plaintiff cannot claim any relief as per the agreement. Therefore, the Defendant has prayed to dismiss the suit.
20 OS.No.25854/2007
9. The Plaintiff has filed the re-joinder to the written statements. The Plaintiff has stated that in pursuance of the agreement the Plaintiff has identified number of properties and collected the documents pertaining to the properties. The 1st Defendant, Mr. Ranganathan and his brother Sarachandran through their power agent alienated the property identified by the Plaintiff situated at No.38, New No.11, Victoria Layout, Bangalore, under a register Sale Deeds dated: 9.6.2005 and 11.7.2005. They have also executed an agreement in respect of the property bearing No.1/1, Old No.34, Ulsoor Road, Bangalore. These properties are included in the agreement dtd: 16.6.1994. The cancellation of the General Power of Attorney was not communication to the M/s Shelter India Holdings Pvt., Ltd. The Defendants are bound to discharge their obligations under the agreement dtd: 30.6.1964. As there is no time limit stipulated in the agreement, the contention of the Defendants that the agreement is time barred cannot be accepted. The Defendants have collected advance sale consideration from the Plaintiff and have executed the sworn affidavits. Therefore, the Plaintiff has prayed to dismiss the suit.
21 OS.No.25854/2007
10. Based on the aforesaid pleadings this Court has framed the following issues:-
1) Whether the plaintiff proves that the Defendants have no right to deal with the properties and they are bound by the terms of the agreement dtd: 16.6.1994?
2) Whether the Plaintiff proves that the documents executed by the Defendants in respect of the suit schedule properties are null and void and not binding on the Plaintiff?
3) Whether the Plaintiff is entitled for permanent injunction?
4) Whether the Defendant No.1 proves that the agreement dated: 16.6.1994 is unenforceable as the same is result of inducement and fraud without free consent, the same is prohibited u/Sec.79A, 79B and Section 80 of Land Reforms Act?
5) What Order or Decree?22 OS.No.25854/2007
11. To prove their case, the plaintiff got himself examined as P.W.1 and got marked Ex.P.1 to Ex.P.4 documents. The evidence of PW.1 was discarded as per order dtd: 2.12.2015 on the application filed by the Plaintiff. Sri.G.Radhakrishnan, authorized signatory of the Plaintiff got himself examined as PW.2 and got marked one more document as per Ex.P.5. The Defendants have not led any evidence.
12. Heard, Sri. Shanmukhappa, learned counsel for the Plaintiff. The Defendants and their counsel absent when the case was called for hearing.
13. My answers to the above issues are as follows:-
Issue No.1 : In the Negative.
Issue No.2 : In the Negative.
Issue No.3 : In the Negative.
Issue No.4 : The agreement is unenforceable. The Defendant No.1 has failed to prove that the agreement dtd:16.6.1994 is the result of inducement, fraud and without free consent and the same is prohibited under Section 79A, 79B and Section 80 of the Land Reforms Act.23 OS.No.25854/2007
Issue No.5 : As per final orders for the following:
REASONS
14. Issues Nos.1 to 4:- As these issues are inter- connected with each other, these Issues are taken up together for consideration.
15. The relief claimed by the Plaintiff is to declare that the Defendants have no right to deal with the plaint schedule properties and they are bound by the terms of the agreement dtd: 16.6.1994, to declare that the document executed by the Defendants in respect of the schedule properties are null and void and not binding on the Plaintiff and for the permanent injunction restraining the Defendants from encumbering, alienating or creating any charge over the property. To get this relief the Plaintiff has to show that he has the exclusive right to deal with the property. The Plaintiff has stated that there was an agreement dtd: 16.6.1994 between the Plaintiff and Mr. N. Ranganathan, Mr.Sarachandran and the 1st Defendant Mr. Vijaya Kumar, wherein the Plaintiff had the exclusive power to deal with the properties to manage, develop, sell and 24 OS.No.25854/2007 lease. It is stated that the General Power of Attorney authorizing the nominee of the Plaintiff M/s Shelter India Holding Private Limited to deal with the properties is also executed.
16. The Plaintiff has produced agreement dtd: 16.6.1994 as per Ex.P.2, which is entered into between Mr.N.Ranganathan, Mr.Sarachandran and the 1st Defendant Mr. Vijaya Kumar as the parties of first party and the Plaintiff as the second party. It is stated that the Plaintiff shall have exclusive powers to deal with the properties over which the first party to the agreement have acquired the right, title and interest by inheritance. The second party has agreed to manage, develop and deal with the properties. The Clause-16 of the said agreement states that the second party shall have the rights to sell, lease, let-out and mortgage deal and turn to account the properties without any consent or approval of the first party. It is also stated in Clause-19 that the first party has created a charge in favour of the second party in respect of the properties. It is also agreed that the agreement is irrevocable. Therefore, the terms of the agreement shows that 25 OS.No.25854/2007 the agreement has no specific time limit and the effect of the agreement is that the first party has given up all the rights in respect of the properties and the right retained by the first party is only to pay the taxes. The first party has only the right to share the proceeds or income or revenue generated from the properties only to the extent of 30% and 70% belongs to the second party. Ex.P.3 is General Power of Attorney executed by Mr. N. Ranganathan, Mr.Sarachandran and the 1st Defendant Mr. Vijaya Kumar in favour of M/s Shelter India Holdings Private Limited. It is stated by the Plaintiff that the Power of Attorney holder is their nominee. This is a registered General Power of Attorney. There is no reference of the agreement Ex.P.2 in this document. It is stated that the General Power of Attorney is irrevocable. Ex.P.3 does not show that the same is made for consideration. Therefore, it cannot be said that the Ex.P.3 is coupled with interest and therefore, the same is irrevocable as contended by the Plaintiff. The power of attorney holder is not made as a party to this suit.
17. The reading of the agreement of sale shows that the interest in the immovable properties is transferred to the 26 OS.No.25854/2007 Plaintiff under the said agreement. Therefore, the said agreement requires compulsory registration under Section 17 of the Registration Act. The said agreement is not registered. Further, the said agreement has no specific time limit. The terms of the agreement shows that it cannot be specifically enforced in the agreement of sale in the Court of law. Because, the same contains the details and the acts which have to be performed, which cannot be supervised by the Court, therefore, the possession is the only remedy. As the agreement cannot be specifically enforced and it has not created any right, title or interest in the properties in favour of the Plaintiff for want of registration, the Plaintiff cannot claim any relief based on the said agreement. The Defendants if they have any right over the properties as contended by the Plaintiff, the title and interest has remained in them and they are free to deal with the properties. Therefore, the alienations made by them in favour of any parties is valid and the Plaintiff has no right to claim the declaration that the Defendants have no right to alienate the properties or to claim the relief that the Defendants have no rights to deal with the properties. Further, it is not clear either from the agreement or from the material 27 OS.No.25854/2007 on record, whether the Defendants have any right over the properties. It is stated that the properties belonged to Mysore Venkataswamy Chetty, Muthuswamy Chetty and Rao Bahadur Govindha Chetty and no documents of the properties are produced to show that the Defendants have pre-existing right over the said properties.
18. The one of the terms of the agreement is that the Plaintiff has to assist in managing, developing and vacating the unauthorized occupants in respect of the properties.
19. Though, the Defendants have not cross-examined PW.1, the suit filed by the Plaintiff itself is not maintainable. If the consequences of the granting of the relief would be granting the exclusive right to the Plaintiff without a registered document and without transfer of the right, title and interest in the properties as required by law. The Ex.P.2 the agreement on the basis of which this suit is filed was executed on a stamp paper of Rs.10/-. The Plaintiff has paid the duty and penalty of Rs.2,090/- on this document. The Plaintiff by relying on this agreement and by paying the Court fee of Rs.75/- wants to claim the exclusive right to deal with the properties in 28 OS.No.25854/2007 perpetuity which cannot be permitted. Therefore, this Court holds that the Plaintiff is not entitled for the reliefs claimed in the plaint. Hence, this Court concludes as follows:
20. The Plaintiff has failed to prove that the Defendants have no right, title or interest over the properties and they are bound by the terms of the agreement dtd: 16.6.1994 and that the documents executed by the Defendants are null and void and not binding on the Plaintiff. Therefore, this Court holds that the Plaintiff is not entitled for the relief of permanent injunction. Hence, Issue Nos.1 to 3 are answered in the Negative.
21. The Defendant No.1 has not led any evidence. The agreement itself shows that the agreement is unenforceable. The Defendant No.1 has not shown that the said agreement was entered into as a result of inducement and fraud and the same is prohibited under Section 79A, 79B and Section 80 of the Land Reforms Act. Therefore, it has to be held that the agreement dtd: 16.6.1994 is unenforceable. But, the Defendant No.1 has failed to prove that the same is the result of inducement, fraud and without free consent and the same is 29 OS.No.25854/2007 prohibited under Section 79A, 79B and Section 80 of the Land Reforms Act. Hence, Issue No.4 is answered accordingly.
22. Issue No.5:- In the result, this Court proceeds to pass the following :-
ORDER The suit of the plaintiff is dismissed with costs. Draw up decree accordingly.
(Dictated to the Stenographer, transcript thereof, corrected, signed and then pronounced by me in the open Court on this the 22nd day of February, 2017].
[ J.R.MENDONCA ], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore.30 OS.No.25854/2007
ANNEXURE
1. List of witnesses examined for the plaintiffs :-
P.W.1 : Sri. Purushotham Das Sewag.
P.W.2 : G. Radhakrishnan.
2. List of documents marked :-
Ex.P 1 : Board Resolution letter.
Ex.P 2 : Deed of Agreement dtd: 16.6.1994.
Ex.P 3 : General Power of Attorney.
Ex.P 4 : Certified copy of Deed of Agreement dtd:
23.1.1995.
Ex.P 5 : Certificate issued by Chartered Accountant
with annexure.
3. List of witnesses examined for the defendants :-
Nil
4. List of documents marked:-
Nil (J.R.Mendonca) XXVIII ADDL.CITY CIVIL JUDGE BANGALORE Judgment pronounced in open court (vide separate judgment):-
ORDER The suit of the plaintiff is dismissed with costs.
Draw up decree accordingly.
XXVIII ADDL.CITY CIVIL JUDGE BANGALORE