Bangalore District Court
M/S. Davidoss & Co vs M/S. Rajesh Exports Limited on 11 June, 2019
IN THE COURT OF THE XXVI ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU,
(CCH-20)
Present:
Sri.D.S.Vijaya Kumar, B.Sc., LL.B.,
XXVI Addl. City Civil & Sessions Judge, Mayo Hall,
Bengaluru
Dated this the 11th day of June, 2019
O.S.No.26972/2009
Plaintiff: M/s. Davidoss & Co.,
A proprietary concern,
Carrying on business at No.779,
'Mohan Building', Chickpet,
Bengaluru -560 053, Represented
by its Proprietor
Mr. Dinesh Jeenabhai
[By Sri.H.R.A-Advocate]
Vs.
Defendant: M/s. Rajesh Exports Limited,
A Public Limited Company,
Having its Registered Office at
No.4, Batavia Chambers, Kumara
Krupa Road East, Bengaluru-
560001. Represented by its
Chairman and Managing Director
Mr. Rajesh Mehta
[By Sri.G.K.-Adv.]
2 OS No.26972/2009
Date of Institution of suit: 19.09.2009
Nature of the Suit (Suit for
Pronote, Suit for Declaration Specific
and Possession, Suit for performance
Injunction, etc.):
Date of Commencement of 17.09.2012
recording of evidence:
Date on which the Judgment 11.06.2019
was pronounced:
Total Duration:
Years Months Days
09 08 22
(D.S.VIJAYA KUMAR)
XXVI Addl. City Civil Judge, Mayo Hall,
BENGALURU.
3 OS No.26972/2009
JUDGMENT
Plaintiff has filed this suit against the defendant seeking enforcement and specific performance of the contract/Memorandum of Understanding executed in May 2006 by directing the Defendant to execute a Deed of Sale in favour of plaintiff in respect of the suit property or in the alternative to execute an Agreement of contract for sale in favour of the plaintiff in terms of the MOU and for permanent injunction to restrain the defendant from letting out or encumbering the suit property and interfering with plaintiff's possession of the suit property.
2. Brief facts of the case of the Plaintiff are as under:-
That, the Plaintiff is a tenant of the ground floor and first floor premises in the property 4 OS No.26972/2009 bearing No.779 Chickpet, Bengalore, called as Mohan Building, comprising to an extent of 1560 sq.feet i.e., in the ground floor 451 sq.feet and in the first floor 1095 sq. Feet, on monthly rental of Rs.483/- per month. Plaintiff was a tenant under the previous owner of Mohan Building by name Mohanlal Kapoor. Entire building was owned by M/s. Vidyavathi Kapur Trust, represented by its trustees. One M/s. Rajatha Trust entered into a sale with M/s. Vidyavathi Kapur Trust for purchase of the schedule property and in that connection submitted an application in Form No.37-1, to the Income Tax Department. The income tax Department passed an order under sec. 269 UD(1) of the Income Tax Act on 28.11.1996/corrected order dtd. 06.12.1996. By virtue of the said order suit property i.e, Mohan Building vested with the Central Government, 5 OS No.26972/2009 which was later auctioned by the Income Tax Department in a public auction on 08.03.2004.
Defendant became a successful bidder in the auction and the tenants of Mohan Building had formed an Association and had participated in the public auction to purchase of Mohan Building After defendant became a successful bidder, Mohan Building tenants have filed a writ petition in WP No.12450/2004, questioning the validity of the auction sale. Meanwhile tenants of Mohan Building entered into a Memorandum of Understanding as per the terms and conditions contained therein with the defendant. Also the tenants filed Writ Appeal in W.A.No.3494/2005 against the order passed in W.P.No.12450/2004 dtd. 2.9.2005. During the pendency of the writ appeal, defendant agreed to rehabilitate the tenants and re-let same on ownership basis to 6 OS No.26972/2009 the respective tenants, subject to the conditions that they withdraw the Writ appeal. Defendant had promised to rehabilitate and sell a portion belonging to the tenants on ownership basis after demolishing old building and construction in the new building. Defendant has executed Memorandum of Understanding in favour of M/s. Mohan Building Tenants Association. One more Memorandum of Understanding was entered into between the parties in the presence of a Senior Advocate by name Mr. Javali. But, the said MOU is in the custody of the said counsel and no copies of the same were supplied to either of the parties. Plaintiff is a member of the Tenants Association. That recital in the Memorandum of Understanding that another agreement should be entered into between parties is actually superfluous. That the plaintiff has paid Rs.25,101/- 7 OS No.26972/2009 as advance by way of cheque to the defendant. It is further contended that the defendant, apart from committing breach of terms of the Memorandum of Understanding has instituted suit in OS No.17449/2006 for ejectment of the plaintiff. Plaintiff has been ready and willing to perform all the obligations of the contract. Hence, the plaintiff has filed this suit seeking the relief.
3. The Defendant appeared and filed written-statement and contested the suit.
4. The brief facts of the written-statement filed by the defendant are as under:-
The suit of the plaintiff is not maintainable and same is liable to be dismissed. Defendant denies execution of the Memorandum of Understanding. Defendant is the absolute owner 8 OS No.26972/2009 of Mohan Building, which consists of 43 shops, having purchased same in the public auction conducted by the Income Tax Department. It is also contended that the plaintiff is a tenant of a shop bearing No.779 in Mohan Building and the tenants Association has filed a Writ petition in W.P.No.12450/2004 (T-IT), challenging the public auction conducted by the I.T.Dept., but the same was dismissed by an order dtd.2.9.2005. Plaintiff was petitioner no.9 in the said writ petition. Being aggrieved by the said order, tenants had preferred a Writ appeal No.3494/2005. But, the same was also dismissed as withdrawn. Since the plaintiff was prompt in payment of rent and had defaulted from 09.02.2005, despite causing demand notice and was in arrears of Rs.1,03,950/- defendant terminated the tenancy of the suit property by causing a Legal Notice, and filed suit 9 OS No.26972/2009 for ejectment. There is no Sale agreement entered into between the plaintiff and defendant and defendant has not received any amount from the plaintiff as claimed by the plaintiff. Since there is no contract between plaintiff and defendant, plaintiff is not entitled to any relief. Even if there is any Memorandum of Understanding, plaintiff has not performed/ complied with the terms thereof and therefore, also plaintiff is not entitled to any relief as sought for. On these grounds defendant has sought for dismissal of the suit of the plaintiff.
5. In support of the plaintiff's case, Plaintiff's proprietor has been examined as P.W.1 and two independent witnesses have been examined as PW.2 and 3. But, no documents are produced on behalf of the plaintiff. In defence, defendant got examined it's authorized Officer 10 OS No.26972/2009 as DW.1 and got marked 7 documents as Ex.D.1 to D.7.
6. Heard arguments.
7. The following issues have been framed in the case:-
1) Whether plaintiff proves that there is an enforceable contract in between plaintiff and defendant under MOU?
2) Whether suit of the plaintiff is barred u/s.16 of the Specific Relief Act?
3) Whether plaintiff is entitled for relief sought for?
4. What order of decree?
8. For the reasons stated in the subsequent paragraphs, I answer above issues as follows:- 11 OS No.26972/2009
ISSUE NO.1 :- In the negative
ISSUE NO.2 :- Does not survive
for consideration
ISSUE NO.3 :- In the negative
ISSUE NO.4 :- As per final order
for the following
REASONS
9. Issue No.1:- Plaintiff has filed this suit claiming that it is a tenant of the ground floor and first floor premises in the property bearing No.779 Chickpet, Bengalore, called as Mohan Building, comprising to an extent of 1560 sq.feet i.e.,in the ground floor 451 sq.feet and in the first floor 1095 sq. Feet, on monthly rental of Rs.483/- per month. Plaintiff was a tenant under the previous owner of Mohan Building by name Mohanlal Kapoor. Entire building was owned by M/s. Vidyavathi Kapur Trust, represented by its trustees. One M/s. Rajatha Trust entered into a 12 OS No.26972/2009 sale agreement with M/s. Vidyavathi Kapur Trust for purchase of the schedule property and in that connection submitted an application in Form No.37-1, to the Income Tax Department. The income tax Department passed an order under sec. 269 UD(1) of the Income Tax Act on 28.11.1996/corrected order dtd. 06.12.1996. By virtue of the said order suit property i.e, Mohan Building vested with the Central Government, which was later auctioned by the Income Tax Department in a public auction on 08.03.2004. Defendant became a successful bidder in the auction and the tenants of Mohan Building had formed an Association and had participated in the public auction to purchase Mohan Building After defendant became a successful bidder, Mohan Building tenants have filed a writ petition in WP No.12450/2004, questioning the validity of 13 OS No.26972/2009 the auction sale. Meanwhile tenants of Mohan Building entered into a Memorandum of Understanding as per the terms and conditions contained therein with the defendant. Also the tenants filed Writ Appeal in W.A.No.3494/2005 against the order passed in W.P.No.12450/2004 dtd. 2.9.2005. During the pendency of the writ appeal, defendant agreed to rehabilitate the tenants and re-let same on ownership basis to the respective tenants, subject to the condition that they should withdraw the Writ appeal. Defendant had promised to rehabilitate and sell a portion belonging to the tenants on ownership basis after demolishing old building and construction in the new building. Defendant has executed Memorandum of Understanding in favour of M/s. Mohan Building Tenants Association. One more Memorandum of 14 OS No.26972/2009 Understanding was entered into between the parties in the presence of a Senior Advocate by name Mr. Javali. But, the said MOU is in the custody of the said counsel and no copies of the same were supplied to either of the parties. Plaintiff is a member of the Tenants Association. Relevant portion of the Memorandum of Understanding is mentioned at Para-5 of the plaint, which is culled out as below:-
....."The plaintiff repeatedly requested the defendant to fulfil the terms of the memorandum of understanding or agreement dated May 2006. The Memorandum of Understanding is executed by the defendant in favour of M/s. Mohan Building Tenants Association. One more Memorandum of Understanding entered into between the parties in the presence of senior advocate Mr.Javali. The same is in his custody. No copies were supplied to any of the parties. The plaintiff is a member of the Association. 15 OS No.26972/2009 The recitals in the agreement may kindly be read as part and parcel of this plaint"...
10. Plaintiff further claims that recital in the Memorandum of Understanding that another agreement should be entered into between parties is actually superfluous. It is contended that the plaintiff has paid Rs.25,101/- as advance by way of cheque to the defendant. It is further contended that the defendant, apart from committing breach of terms of the Memorandum of Understanding has instituted a suit in OS No.17449/2006 for ejectment of the plaintiff. Plaintiff has been ready and willing to perform all the obligations of the contract and therefore, suit should be decreed as prayed for.
11. In support of the suit claim, Plaintiff Company's proprietor has examined as PW.1. Also 16 OS No.26972/2009 another tenant in Mohan Building is examined as PW.2. PW.3 is also examined on behalf of the plaintiff.
12. Whereas, defendant has filed written-
statement, denying the Memorandum of Understanding claimed by the plaintiff. Defendant has contended that it is the absolute owner of Mohan Building, which consists of 43 shops, having purchased same in the public auction conducted by the Income Tax Department. It is also contended that the plaintiff is a tenant of a shop bearing No.779 in Mohan Building and the tenants Association had filed a Writ petition in W.P.No.12450/2004 (T-IT), challenging the public auction conducted by the I.T.Dept., but the same was dismissed by an order dtd.2.9.2005. Plaintiff was petitioner no.9 in the said writ petition. Being aggrieved by the said 17 OS No.26972/2009 order, tenants had preferred a Writ appeal No.3494/2005. But, the same was also dismissed as withdrawn. Since the plaintiff was not prompt in payment of rent and had defaulted from 09.02.2005, despite causing demand notice and was in arrears of Rs.1,03,950/- defendant terminated the tenancy of the suit property by causing a Legal Notice, and filed suit for ejectment. There is no Sale agreement entered into between the plaintiff and defendant and defendant has not received any amount from the plaintiff as claimed by the plaintiff. Since there is no contract between plaintiff and defendant, plaintiff is not entitled to any relief.
Even if there is any Memorandum of Understanding, plaintiff has not performed/ complied with the terms thereof and therefore, 18 OS No.26972/2009 also plaintiff is not entitled to any relief as sought for.
13. On behalf of the defendant's its authorised Officer has been examined as DW.1. Further, defendant has produced EX.D. 1 to D.7 documents, of which Ex.D.5 is the certified copy of the deposition of the plaintiff in OS No.17449/2006, Ex.D.6 is the certified copy of the judgment dtd. 14.06.2011 in RFA No.1478/2010 c/w.1480, 1484 and 485/2010 and Ex.D.7 is the certified copy of the Board Resolution dtd.26.05.2017.
14. I have perused records. Plaintiff's counsel has submitted arguments. Defendant's counsel has not submitted arguments.
15. Relevant portion of Para-5 of the plaint which recites to the plaintiff's claim regarding 19 OS No.26972/2009 Memorandum of Understanding allegedly executed by the defendant in May 2006 is reproduced as here below:-
....."The plaintiff repeatedly requested the defendant to fulfil the terms of the memorandum of understanding or agreement dated May 2006. The Memorandum of Understanding is executed by the defendant in favour of M/s. Mohan Building Tenants Association. One more Memorandum of Understanding entered into between the parties in the presence of senior advocate Mr.Javali. The same is in his custody. No copies were supplied to any of the parties. The plaintiff is a member of the Association. The recitals in the agreement may kindly be read as part and parcel of this plaint"....
16. According to the above averments of the plaint, firstly Memorandum of Understanding has actually been executed between M/s. Mohan Building Association and Defendant. Plaintiff is only a member of M/s. Mohan Building Tenants 20 OS No.26972/2009 Association. When the plaintiff claims that the Memorandum of Understanding in question is executed between M/s.Mohan Building Tenants Association and Defendant, suit ought to have been filed for specific performance by M/s. Mohan Building Tenants Association. Plaintiff being merely a member of the Association, in my opinion has no locus standi to file the suit in individual capacity for specific performance thereof. On this score itself in my opinion, suit of the plaintiff is not tenable.
17. Next, coming to the averments of para- 5 of the plaint mentioned supra, there is a written MOU/Agreement which is allegedly executed in May 2006. When the plaintiff states that there is a written Memorandum of Understanding, in respect of the terms of the MOU, which the plaintiff has set out in detail in 21 OS No.26972/2009 para-5 of the plaint, plaintiff is required to produce said written Memorandum of Understanding before the court to prove the terms and conditions thereof. Sec.91 of the Indian Evidence Act, excludes oral evidence in proof of terms and conditions of a written contract. For proving the terms and conditions of a written contract, party relying on the same has to produce document before the court. Sec.91 of the Indian Evidence Act,1872 reads as below:-
"91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents:-
When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be 22 OS No.26972/2009 given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.--
When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained."
18. When that is the position of law, plaintiff has not chosen to produce a scrap of paper before the court to show that there is a Memorandum of Understanding entered into between M/s.Mohan Building Tenants Association 23 OS No.26972/2009 and defendant in May 2006. Added to it, at para-5 of the plaint, plaintiff has claimed that there is one more Memorandum of Understanding entered into between the parties in the presence of a Senior Advocate by name Mr.Javali. But, the said MOU is in the custody of the said counsel and no copies are supplied to the parties. Plaintiff has not made any effort to secure said Memorandum of Understanding, which is allegedly in the custody of the counsel by name Mr. Javali, except for bare averments at para-5 of the plaint.
19. It is a fact that defendant has not chosen to cross-examine PW.1-Proprietor of the Plaintiff firm. That by itself will not abdicate plaintiff's responsibility to produce material evidence before the court to prove it's case as claimed in the plaint. Initial burden is on the 24 OS No.26972/2009 plaintiff to establish that there is Memorandum of understanding between the plaintiff and defendant. But, the plaintiff has not chosen to discharge said initial burden. Who is having custody of the Memorandum of Understanding, allegedly executed in May 2006, is not at all mentioned by the plaintiff, besides not producing the same. Whereas, another Memorandum of Understanding said to have been executed is claimed to be in the possession of a counsel by name Mr.Javali, but same has also not been produced.
20. Plaintiff has examined another tenant in Mohan Building as PW.2. But, PW.2 has turned hostile to the plaintiff and he has been cross- examined by the plaintiff counsel with the permission of the court. In the cross-examination he has admitted the suggestion made that on 25 OS No.26972/2009 20.05.2006, defendant had entered into a Memorandum of Understanding with M/s. Mohan Building Tenants Association and PW.2 had signed the said document as witness. On one hand, during examination in chief, he has not supported plaintiff's case. On the other hand, when plaintiff claims that there is a written contract/Memorandum of Understanding, plaintiff is excluded from leading oral evidence in that behalf. Therefore, his oral evidence is of no help to the Plaintiff.
21. Plaintiff has examined PW.3 as another witness in its support. But, he too has not supported plaintiff's case and he has claimed that he does not know about the Memorandum of Understanding and also about any Memorandum of Understanding being given to 26 OS No.26972/2009 the custody of Mr. Kiran Javali-Advocate. Thus, PW.3 has also not supported plaintiff's case.
22. In the circumstances, defendant not cross examining PW.1 and also not tendering DW.1 for cross-examination is of no moment in the case. Plaintiff in my opinion has failed to discharge the initial burden to prove that there is enforceable contract between plaintiff and defendant under the Memorandum of Understanding. Consequently, Issue No.1 is answered in the negative.
23. Issue no.2:- Defendant has contended that, even though it does not admit Memorandum of Understanding, plaintiff has not fulfilled the conditions of the alleged Memorandum of Understanding and therefore, suit is barred u/s.16 of the Specific Relief Act. Plaintiff has claimed that it has paid Rs.25,101/- to 27 OS No.26972/2009 the defendant under the Memorandum of Understanding. Defendant has denied said fact. Plaintiff has not produced any material to show that said amount has been paid to the defendant as claimed in the suit. Besides, this issue does not arise for consideration in view of the plaintiff not producing Memorandum of Understanding and not proving same. Consequently, Issue No.2 is answered to the effect that same does not survive for consideration.
24. Issue No.3:- Since plaintiff has not proved the Memorandum of Understanding, which is claimed in the plaint, plaintiff is not entitled to any relief sought for in the suit. Consequently, Issue No.3 is answered in the negative.
28 OS No.26972/2009
25. ISSUE No.4:- In the result, I proceed to pass the following :-
ORDER Suit of the plaintiff is hereby dismissed.
No order as to cost.
--
(Dictated to the Stenographer, directly on computer, transcript thereof, is corrected and then pronounced by me in the open court on this the day of 11th day of June, 2019)
--
(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge Mayo Hall, Bengaluru.29 OS No.26972/2009
ANNEXURE
1. List of witnesses examined for the plaintiff:
P.W.1 Sri.Dinesh Jeenabhai P.W.2 Sri.Ashok Dadlani P.W.3 Sri.Kirit Kumar Turakhia
2. List of witnesses examined for defendant:
D.W.1 Sri.Mallikarjuna
3. List of documents exhibited for the plaintiff:
NIL
4. List of documents exhibited for defendant:
Ex.D.1 Certified copy of the Certificate of Incorporation Ex.D.2 Certified copy of the Sale Deed dtd. 9.2.2005 Ex.D.3 Certified copy of the Katha Certificate dtd.7.7.2006 Ex.D.4 Certified copy of the tax paid receipt 30 OS No.26972/2009 Ex.D.5 Certified copy of the deposition of plaintiff in OS No.17449/2006 Ex.D.6 Certified copy of the Judgment dt.14.6.2011 in RFA No.1478/2010 c/s. 1480, 1484 and 485/2010 Ex.D.7 Certified copy of the Board Resolution dt.26.05.2017.
(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge Mayo Hall, Bengaluru.