Bangalore District Court
M/S.Sankalpa Enterprises vs Mr.Mohammad Tanveer Hussain on 30 January, 2017
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BANGALORE [CCH.No.42]
PRESENT: SRI.BASAVARAJ B.COM., LL.M.
XLI Addl. City Civil Judge
Dated this the 30th day of January 2017
O.S. No.7448/2009
PLAINTIFFS : M/s.Sankalpa Enterprises
Rep. by its Proprietors
1. G.Pradeep Kumar
Aged about 28 years
2. U.Devaraj
Aged about 31 years
Office At:- No.20, NRI Layout,
Kalkere Village, Horamavu Post
BANGALORE-560 043.
(By Sri.K.S.M., Advocate)
V/s.
DEFENDANTS : 1. Mr.Mohammad Tanveer Hussain
Aged about 40 years
S/o.Mohammad Salamathullah Qureshi
2. Mrs.Nilofer Tanveer Hussain
Aged about 34 years
W/o.Mr.Mohammad Tanveer Hussain
Residing at:- HIG 803, 13th "A" Main,
3rd Phase,"A" Sector, Yelahnaka New Town,
BANGALORE-560 064.
2 OS No.7448/2009
Business Address at:- "Magna Sys Material
Handling and Storage Systems Private
Ltd.," No.41/1, Mestri Palya Main Road,
Srirampura, Jakkur Post, Bangalore-560
064.
(By Sri.M.H.P., Advocate)
Date of Institution of the Suit: 17.11.2009
Nature of the suit
(Suit on Pronote, suit for Recovery of money
declaration & possession, suit
for injunction)
Date of commencement of 01.09.2010
recording of evidence:
Date on which the Judgment 30.01.2017
was pronounced:
Total Duration: Year/s Month/s Day/s
07 02 13
JUDGMENT
The plaintiff has filed this suit for the recovery of Rs.10,12,000/- from the defendants with interest at 18% per annum, from 25.10.2008 till date of realization and costs of the suit and also such other reliefs.
2. The plaint averments in brief is that one Shashi Kumar is the proprietor M/s.SAS Engineers, who is the 3 OS No.7448/2009 absolute owner of the suit 'A' Schedule property. The plaintiff is the joint developer and owner of the entire super buildup area constructed over the "A'' schedule property.
The defendants are the purchasers of the suit 'B' schedule property, which is constructed in the Roshani Apartment of 'A' Schedule property. The defendants have defaulted in payment of the consideration amount set for the purchase of the suit "B'' Scheduled property.
The said Shashi Kumar, had acquired the title to the property by virtue of the sale deed dt.29.5.2006, executed by one R.Shankar. On 14.12.2007, the plaintiff decided to purchase the suit "B'' schedule property which partly constructed (about 20%) and developed. The plaintiff was responding to the hour of need of Shashi Kumar, who was in belligerence with his father V.Mohan Rao, the earlier joint developer of the suit schedule property in pursuance of the registered agreement to sale dt:
14.12.2007 arrived between Shashi Kumar and the plaintiff.
On 14.3.2008, the parties have decided to cancel the agreement of sale and in pursuance of the same, on the same 4 OS No.7448/2009 day entered registered cancellation of the agreement to sale dated 14.03.2008 and registered joint development agreement dated 14.03.2008 for the development of the property and a parallel general power of attorney for the exclusive rights for the sale of the super built area by the plaintiff.
The plaintiff has acquired the rights to sell the super built area of the property for and on behalf of the owner. The plaintiff has retained all his rights to sell and mortgage the super built area and collect any consideration arising out of such a transaction against the original owner. Plaintiff has put up the construction on the suit schedule property and on the basis of the plan approved and provided by the owner, through Grama Panchayath. The plaintiff has invested Rs.75,00,000/- on the basis of the plan provided by the owner and have constructed four floors of the apartment. The plaintiff having required the absolute marketable and selling rights over the "A'' schedule property has expressed their intention of selling all the super built up area of it.
5 OS No.7448/2009
The defendants approached the plaintiff for the purchase of a residential apartment. The defendants after considering and verifying the clear title and other prospective aspects of the suit "B" schedule property, has decided to purchase the same for consideration. In pursuance, the sale deed came to be executed on 25.10.08 for a total sum of Rs.10,12,000/-.
The plaintiff has retained their rights to collect the sale consideration vide their understandings by way of JDA, MOU, GPA with the original owner. They insisted on clear transaction and requested the defendants to pay the amount of consideration in white. The defendants requested the plaintiff to defer the payment of consideration amount, as they stated to be facing temporary financial slump. The defendants stated that 25.10.2008 was an auspicious day and insisted the sale transaction to execute on the same day. Considering the bonafides and the fact that the defendants belong to a well respected family, the plaintiff agreed for the deferred payment of the consideration amount. The plaintiff as per the arrangement 6 OS No.7448/2009 executed Sale deed in favour of the defendants in respect of the suit schedule "B" property.
The defendants to affirm the non-payment of the consideration amount issued a post dated cheque bearing No.256208 dt.15.11.2008 of ICICI Bank, Commissionarate Road, Bangalore in the name of the 1st defendant for the entire consideration amount. The plaintiff after the execution of the sale deed had consistently requested the defendants for the clearance of the consideration amount. The defendants have consistently delayed the payment of the consideration amount and have also insisted against the presentation of the cheque. The plaintiff has obliged to the request and delayed the presentation of the cheque till the month of April 2009 as per oral agreement. The plaintiff has again in the month of April 2009, demanded the payment of the amount from the defendants. The defendants have blatantly refused payment stating that the cheque presentment period has expired. The plaintiff caused the legal notice to the defendants and same was served on them. So, prays to decree the suit.
7 OS No.7448/2009
3. The defendants appeared before this court and filed written statement contenting that the suit of the plaintiff is not maintainable in law and facts. These defendants are not defaulted in payment of the consideration amount as alleged by the plaintiff. The plaintiff has suppressed the true facts.
The plaintiff even to this date has not given the title deeds referred to in the Para No.4 and 5 of the plaint. The plaintiff even after receipt of the substantial amount did not complete the construction and did not furnish the sanctioned plan of the building and has been adopting all the delaying tactics. These defendants having parted with the substantial amount to the plaintiff, were in utter helpless condition, as dispute has arisen between the original land owner and the plaintiff regarding construction, payment of the amount etc., The plaintiff by his conduct and dishonest claim is playing fraud on the defendants and all other purchasers of flats in the "A'' schedule property. The plaintiff has suppressed the litigation, dispute and cases pending between the Landlord and the plaintiff.
8 OS No.7448/2009
The plaintiff has suppressed the dispute and differences regarding construction and contract with the land owner. The plaintiff even to this date has not given all the relevant documents relating to the Suit 'A' Schedule Property, the title deeds of the landowner, the conversion order, the betterment/tax paid, the khatha, the approved sanctioned plan for the construction of fourth floor in particular the penthouse. These defendants have purchased the penthouse in an unfinished condition from the plaintiff, subject to plaintiff giving all the documents above mentioned and giving a clear deed of disclaimer from the landlord, settlement of all the disputes with the landlord and also subject to completing and finishing the construction of the penthouse in all respect. The plaintiff has not completed and finished the construction much less furnished the required documents, that was necessary to avoid any risk of demolition, fine and other legal proceedings with a from revenue authorities, village panchayat and the Bruhath Bangalore Mahanagara Palike and also from the original land owner. The defendants have paid more than the value of the flat 9 OS No.7448/2009 as on the date of registration of sale deed. The plaintiff has not even provided lift to the building till date that was promised in the sale deed.
The litigation between plaintiff and original landlord made these defendants to agree to the dictates of the plaintiff to give alleged cheque of Rs.10,12,000/- and got the flat registered in their name after spending substantial amount for the same, at least to create interest and right over the flat, in the event of the plaintiff vanishing from the scene and living the jurisdiction. It is under the circumstances and compulsion these defendants got the registered sale deed executed in their name. In fact the same was executed by plaintiff in consideration of the amount already paid to plaintiff by the defendants, further to make dishonest gain from the cheque, stated in para No.11 of the plaint, without even completing and finishing the building.
Thus these defendants had to join the Association of the purchasers of the Flats in Schedule 'A' Property. The defendants through the said association got completed and occupied the flats, penthouse, in the Schedule 'A' property. The plaintiff 10 OS No.7448/2009 having utterly failed to construct and complete the building and hence now cannot claim the alleged cheque amount, unless account for the already received amount.
The plaintiff had failed in their duty, responsibility and obligation to fully construct and finish the Schedule A Property and to give clearance from the landlord and local authorities, as Bruhath Bangalore Mahanagara Palike has issued notice under Section 321(1) of KMC Act and also not provided lift service, has now come forward with the threat to sue the defendants. The plaintiff cannot demand the cheque unless they perform their part of the construct, i.e. reimbursement of the entire funds spent by the Association of the purchasers of the Schedule 'A' property besides furnishing all the required documents i.e. conversion certificate, betterment paid receipt, sanctions plan regularized by Bruhath Bangalore Mahanagara Palike, clearance certificate by Bruhath Bangalore Mahanagara Palike and local authorities for fire and other safety and also clearance from the original landlord for withdrawal of cases which are pending between plaintiff and the original landlord before the 11 OS No.7448/2009 Civil Court, In absence of the same the plaintiff get no right and cause of action to claim the cheque amount.
The issue of cheque and presentation of the cheque for encashment and honoring of the cheque was subject to fulfillment of obligations, responsibility and all the commitments made by the plaintiff said in the above mentioned paragraph of this written statement. Hence, the plaintiff cannot ignore, omit, neglect and close their eyes to the responsibility, obligation and fulfillment of promise and assurances made by the plaintiff. The facts are very clear and these defendants agreed and purchased the flat subject to the plaintiff satisfactorily completing and finishing the flat, conveying undisputed, clear, free and clear from all litigations and also the construction as per approved and sanctioned regularized plan by the local authorities in particular Bruhath Bangalore Mahanagara Palike.
The suit is bad for non joinder of necessary parties in particular the original land lord and association of the purchasers who completed the construction through 3rd agency 12 OS No.7448/2009 and finished the entire work to make the flats in a habitable and occupation condition. The plaintiff has not used the reasonable good quality material the standard of construction was poor, the construction was not even complete and was abundant, without even providing civic amenities, the plaintiff did not invest even Rs.75,00,000/- as alleged construction. The plaint is also not as per form No.8, 16 and 17 of the appendices A of the first schedule of code of civil procedure.
The plaintiff suppressed the fact that the construction is not at approved, regularized by the Bruhath Bangalore Mahanagara Palike and other local authorities. The plaintiff has suppressed the fact as to what percentage of the work they did and at what stage they abandoned the work and the reason for not completing the construction. The construction was completed by the association of purchasers through agency.
The plaintiff is bound to return the cheque as the plaintiff has already received more consideration amount for their work than actual and reasonable profits in cash. The plaintiff by his own contact rescinded all contract for payment of any amount 13 OS No.7448/2009 much less the cheque amount as the plaintiff themselves abandoned and left the construction work in complete in the schedule 'A' property on their own, hence it is not open for them to claim the cheque amount, that was impliedly subject to compliance and fulfillment of condition of legal construction of the flat as per law. Thus, the plaintiff is estopped from claiming the cheque having failed his duty, responsibility and obligation of construction of building as per building byelaws and giving same to the defendants free from all disputes objection and litigation. Except contending above the defendants denied the remaining plaint averments. Hence, prays to dismiss the suit.
4. The plaintiff No.2 has examined himself as P.W.1 and got marked fifteen documents at Exs.P.1 to P.15. On the other hand the GPA holder of the defendant examined himself as DW-1 and got marked seven documents at Ex.D.1 to Ex.D.7.
5. Both the counsels filed their written arguments 14 OS No.7448/2009
6. On the basis of the above pleadings of both the parties, the following issues are framed by my learned predecessor:-
1) Whether the plaintiffs prove that the defendants issued cheque for Rs.10,12,000/- in consideration of purchasing the flat?
2) Whether the plaintiffs prove that defendants cheated the plaintiffs by getting the sale deed executed without making cheque amount?
3) Whether the defendants prove that they had already paid the entire amount to the owner of the flat and plaintiff had promised to bring clearance from the owners?
4) Whether the defendants prove that the plaintiffs did not complete the further construction and finishing work as per the terms and bi-laws?
5) Whether the defendants prove that under the forced circumstances they issued cheque without any consideration?
6) Whether the defendants prove that the plaintiffs played fraud on them?
7) Whether the plaintiffs are entitled to recover the suit amount or any sum?
8) What order or decree?
7. My findings to the above issues are as under:
ISSUE No.1 & 2 - In the affirmative 15 OS No.7448/2009 ISSUE No.3 - In the negative ISSUE No.4 - In the negative ISSUE No.5 - In the negative ISSUE No.6 - In the negative ISSUE No.7 - In the affirmative ISSUE No.8 - As per the final order, for the following:
REASONS
8. ISSUE Nos.1, 2 and 4:- Since these issues are interconnected with each other hence they are taken together for common discussion in order to avoid repetition of facts and evidence.
9. It is the case of the plaintiff that one R.Shankar was the original owner of the 'A' Schedule property and he sold the same to one Shashi Kumar under registered Sale deed dated 29.05.2006 and the said Shashi Kumar partly constructed the Roshani apartment which includes the 'B' Schedule property 16 OS No.7448/2009 and thereafter the plaintiff entered into agreement of sale dated 14.12.2007 with the said Shashi Kumar and thereafter they have decided to cancel the agreement of sale by entering into cancellation of agreement of sale and joint development agreement both are dated 14.03.2008 and accordingly the plaintiff as developer/promoter completed the construction of the said Rashani apartment including the 'B' Schedule property.
It is further case of the plaintiff that the defendants agreed to purchase the 'B' Schedule property and insisted to execute the sale deed on 25.10.2008 stating that it is the auspicious day by issuing the post dated cheque of Rs.10,12,000/- and by believing words of the defendants, the plaintiff executed registered sale deed on 25.10.2008. It is further case of the plaintiff that when the said cheque was presented to the bank and the same was dishonoured and hence the defendants are liable to pay Rs.10,12,000/- with interest. The plaintiff in order to prove his case produced as many as 15 documents. The Ex.P.1, which is the c/c of registered sale deed dated 29.05.2006 shows that the said R.Shankar sold the 'A' Schedule 17 OS No.7448/2009 property in favour of SAS Engineer's and builders to which the said R.Shashi Kumar is the proprietor. Ex.P.2 is the c/c of the agreement of sale dated 14.12.2007 shows that the said SAS Engineer's and builders as vendors M/s V.M.R.Techno Services to which V.Mohan Rao is the proprietor as confirming party and Sri.Devaraj and G.Pradeep Kumar as purchasers entered into the same with respect to the development of 'A' Schedule property. The Ex.P.3, which is certified copy of the deed of cancellation of agreement of sale dated 14.03.2008 discloses that the said Devaraj and G.Pradeep Kumar as purchaser, the said VMR Techno services as confirming party and the said SAS Engineer's and builders got cancelled the Ex.P.2. Ex.P.4, which is c/c of joint development agreement dated 14.03.2008 discloses that the said M/s SAS Engineers and Builders and the plaintiff entered the same for the development of the 'A' Schedule property by way of constructing apartment. Ex.P.5, which is c/c of the General Power of Attorney dated 14.03.2008 discloses that the said M/s SAS Engineers and Builders authorized the plaintiff for the sale of the apartments 18 OS No.7448/2009 constructed in Roshani Apartments. Ex.P.6, which is c/c of sale deed dated 25.10.2008 discloses that the defendants purchased the 'B' Schedule property from the plaintiff for total sale consideration of Rs.10,12,000/-, which is in the 4th floor of Roshani Apartment. Ex.P.7 cheque dated 15.11.2008 issued by the defendant no. 1 in the name of the plaintiff for Rs.10,12,000/-., Ex.P.8 is office copy of legal notice dated 25.8.2009 got issued by the plaintiff through its counsel to the defendants calling them to pay Rs.10,12,000/-, which is the sale consideration of suit 'B' Schedule property. Ex.P.9 is the certificate of posting regarding sending of legal notice to the defendant No.1, Ex.P.10 is the postal acknowledgment regarding service of legal notice on the defendant No.1, Ex.P.11 is acknowledgment regarding registration of plaintiff's firm, Ex.P.12 is the conversion certificate with respect to the development of 'A' Schedule property. Ex.P.13 is the license for construction of building in the 'A' Schedule property annexed with the plan.
19 OS No.7448/2009
10. It is the case of the defendants that the plaintiff did not complete the further construction and finishing work as per the terms and bye-laws and they already paid the entire consideration amount to the owner of the flat and plaintiff promised to bring clearance from the owner and under the forced circumstances, they issued cheque without any consideration so as to avoid the risk of demolition, fine and other legal proceedings that may arise from revenue authorities, Village Panchayat, BBMP and from the owner and the issuance of cheque was subject to fulfillment of obligations that the satisfactorily completing and finishing of flat and conveying undisputed, clear and clear from all litigations and also the construction as per the approved and sanctioned regularized plan of the local authorities in particularly of BBMP and the plaintiff played fraud on them as the plaintiff suppressed the dispute in between them and the landowner and not given all the relevant documents of the 'A' Schedule property, which is the conversion order of the land from the agricultural to non- agriculture residential purpose, betterment/tax paid receipt, the 20 OS No.7448/2009 khatha, the approved plan, sanction plan and occupancy certificate. The defendants' produced as many as 7 documents. Ex.D.1 is the Xerox copy of the notice issued by the BBMP dated 03.12.2008 and the same marked subject to objection during the course of the cross-examination of the PW1 and it shows that it is issued under Section 321(1) of Karnataka Municipal Corporation Act 1976 stating that the 4th floor is constructed unauthorisedly in violation of the Act and rules and called for the explanation. Ex.D.2 is the special power of attorney dated 17.02.2014 authorizing the DW1 to depose before the court by the defendants, Ex.D.3 is the receipt dated 08.08.2009 issued by the Royal Construction Co. with regard to receipt of Rs.3,50,000/- from the defendant No.1 with regard to completion of certain works in Roshani Apartment. The Ex.D.4 is the receipt of Rs.2,40,000/- issued by A.S.Enterprises dated 02.01.2010 to the defendant No.1 with regard to the completion of certain works in Roshani Apartment. The Ex.D.5 is the receipt of Rs.1,20,000/- issued by I.A.Engineering Works dated 15.01.2010 to the defendant No.1 with regard to the completion 21 OS No.7448/2009 of certain works in Roshani Apartment. Ex.D.6 is the letter written by owners of Roshani Apartment to the defendant No.1 requesting the defendant No.1 to help in completing the pending work. Ex.D.7 is the receipt dated 04.02.2010 issued by the Managing Director of Veenus Elevators Solutions Pvt. Ltd. regarding the completion of pending lift installation in Roshani Apartment.
11. As stated above, from the Ex.P.6 along with the Ex.P.1 to P.5, it is very clear that the plaintiff entered into the joint development agreement for construction of Roshani Apartment and also it was authorized by the General Power of Attorney for the sale of apartments and accordingly plaintiff has sold the completed construction of suit 'B' Schedule property for total consideration of Rs.10,12,000/- in favour of the defendants No.1 and 2, who are the husband and wife respectively. It is the case of the defendants that the plaintiff did not complete further construction and finishing work as per terms and bye-laws. In Ex.P.6 nowhere it is mentioned that 22 OS No.7448/2009 there is any pending work to be completed and the plaintiff has to complete the same. So also the defendants did not dispute the contents of the Ex.P.6 and thereby the defendants admit its contents. The plaintiff specifically contended in the plaint that since the defendants insisted to execute the sale deed on 25.10.2008 itself as it is auspicious day for them and hence they have executed the sale deed by receiving the post dated cheque of Rs.10,12,000/- towards the total sale consideration. Further, if the plaintiff did not complete the further construction and finishing the work, then the defendants would have definitely issued notice to the plaintiff to complete the further construction and finishing work and also would have taken legal action against it.
12. The DW1 in his examination-in-chief, he has stated new story that in the middle of August 2008 the defendants' approached the plaintiff and after negotiation agreed to purchase a fully constructed penthouse for Rs.61,00,000/- of the same till the construction of structure and walls and he 23 OS No.7448/2009 paid Rs.50,00,000/- in cash and agreed to pay balance amount on the completion of penthouse subject to full construction, fixing of doors, windows, sanitary and water fittings, electricity, providing of lift facility and subject to furnishing of conversion certificate, layout plan, sanction plan, payment of betterment charges, taxes obtaining of BBMP Khatha providing separate water, electricity connection, borewell tap water, completion certificate and occupation certificate. So, the defendants for the first time they have stated through the evidence of DW1, which is not in the written statement.
13. On the other hand even though there is no condition in Ex.P.6 that the plaintiff is under the obligation to do certain things, but produced Ex.P.12 conversion certificate, which is issued by the Deputy Commissioner for conversion of 'A' Schedule property for non-agriculture residential purpose and Ex.P.13 which is the building construction license issued by the Chairman, Horamavu Village Panchayat along with a plan to the original owner said Shashi Kumar. Even the Ex.D.1, which 24 OS No.7448/2009 is marked subject to objection, wherein the BBMP passed the orders directing the said Shashi Kumar to demolish the construction, as the same is against the Karnataka Municipalities Act, Rules and bye-laws and called the explanation of him within 7 days. In this regard, the PW1 given the explanation during the course of cross-examination that the alleged notice under the Ex.D.1 is quashed by the Hon'ble High Court of Karnataka. If actually any action is taken by the BBMP against the defendants with respect to the "B'' schedule property on the basis of Ex.D.1, then there will be further orders by the BBMP and the defendants have not produced any such further order of BBMP. Hence, it can be said that now there is no order of BBMP stating that the 4th floor of the Roshani Apartment including the 'B' schedule property is unauthorized one etc. So also it is very important to note that as stated above, when there is no obligation or condition in Ex.P.6 to be fulfilled by the plaintiff and if any action is taken by the original owner or any local authorities, then the appropriate 25 OS No.7448/2009 remedy for the defendants is somewhere else and not in this suit.
14. The defendants in order to show that they have got further construction and finishing work through the other agency and produced the Ex.D.3 to Ex.D.5. The Ex.D.3 to D.5 do not specify the pending works are to be done or have done in the suit 'B' Schedule property. There is atleast no suggestion to the PW1 and not whispered in the written statement that which were the pending works to be done in the 'B" Schedule property at the time of Ex.P.6. When there is no mention about the pending works and also installation of lift in the Ex.P.6, then the Ex.D.3 to D.7 will not help to the case of the defendants in any way. Hence, it cannot be said that the plaintiff did not complete the further construction and finishing work as per the terms and bye-laws. As stated above, the Ex.P.6 is the absolute sale deed with respect to the entirely constructed flat i.e. 'B' Schedule property.
26 OS No.7448/2009
15. Admittedly the defendants issued cheque of Rs.10,12,000/- in favour of the plaintiff. As stated above the defendants failed to prove that the plaintiff did not complete the further construction and finishing works as per the terms and bye-laws. The defendants have not offered any explanation regarding which subject the cheque of Rs.10,12,000/- was issued to the plaintiff, which clearly goes to show that the cheque of Rs.10,12,000/- was issued as consideration for purchasing the 'B' Schedule property. Admittedly the said cheque was dishonoured, which clearly shows that the defendants cheated the plaintiff by getting the sale deed executed in their favour without making the cheque amount.
16. So from the discussion made above, I am of the opinion that the plaintiff proved that the defendants issued the cheque for Rs.10,12,000/- in consideration of purchasing the flat and the defendants cheated it by getting the sale deed executed without making cheque amount and the defendants failed to prove that the plaintiff did not complete the further 27 OS No.7448/2009 construction and finishing works as per the terms and bye- laws Hence, Issue Nos.1 and 2 are answered in the affirmative and Issue No.4 is answered in the negative.
17. ISSUE NO.3: It is the case of the defendants that they have already paid the entire amount to the owner of the flat, but the same is not substantiated by producing the documents. So also the defendants alleged that the plaintiff promised to bring the clearance from the owner, but with respect to the same there is no mentioning in the Ex.P.6. Hence, it cannot be said that the defendants already paid the entire amount to the owner of the flat and the plaintiff had promised to bring clearance from the owners. Hence, issue No.3 is answered in the negative.
18. ISSUE NO.5: It is the case of the defendants that having parted with the substantial amount and had no legal documents to claim any interest and possession of the suit 'B' Schedule property and they were afraid of their amount paid in 28 OS No.7448/2009 cash to the plaintiff and the litigation between the plaintiff and original land lord and made them to agree to the dictate of the plaintiff and to give the cheque of Rs.10,12,000/- and got the flat registered in their name after spending substantial amount and atleast to create interest and right over the flat in the event of plaintiff vanishing from the scene and leaving the jurisdiction. When the defendants got the Ex.P.6 from the plaintiff, then it cannot be accepted that the defendants were afraid of their amount paid in cash to the plaintiff. The defendants vaguely stated as there was litigation between the plaintiff and original landlord but not specifically stated what was the actual dispute arose between them. During the course of cross-examination of the PW1, he denied that there was litigation between the plaintiff and original land lord. Defendants have not shown any circumstances to show that the plaintiff may vanish from the scene. Hence, it cannot be said that the defendants issued the cheque without any consideration under the forced circumstances. So, issue No.5 is answered in the negative.
29 OS No.7448/2009
19. ISSUE NO.6: It is further case of the defendants that the plaintiff have not provided the reasonable good quality materials and standard of construction was poor and construction was not even complete and was abandoned without even providing civic amenities and the plaintiff by their conduct, dishonest claim are playing fraud on them and all the other purchasers of the flats in the suit schedule property and the plaintiff has suppressed litigation, dispute and cases pending between the landlord and the plaintiff. I already came to the conclusion that there was no mentioning of any pending construction work to be done by the plaintiff in Ex.P.6. So also there is no mentioning about the providing of any civic amenities by the plaintiff in Ex.P.6. Hence it cannot be said that there was any pending construction work and plaintiff abandoned the work without providing civic amenities. With regard to the other aspects is concerned to substantiate the same the defendants have not placed any material on record to show that what was the quality of the standard of construction 30 OS No.7448/2009 of the 'B' Schedule property and what would be the quality of standard of construction. Atleast there is no suggestion to the PW1 regarding the same. Hence it cannot be said that the plaintiff played fraud on them. So, the issue No.6 is answered in the negative.
20. ISSUE NO.7: In view of my finding on Issue Nos.1 and 2 in the Affirmative, the suit filed by the plaintiff has to be decreed with costs. Since the transaction is commercial in nature and hence the defendants are liable to pay interest @ the rate of 18 % per annum from the date of Ex.P.7 i.e. 25.10.2008 till the date of realization. So the plaintiff is entitled for the reliefs sought for. Hence issue No.7 is answered in the affirmative.
21. ISSUE NO.8: In the result, I proceed to pass the following:
ORDER The suit of the plaintiff is decreed with costs.31 OS No.7448/2009
The defendant Nos.1 and 2 are liable to pay an amount of Rs.10,12,000/-to the plaintiff with interest at 18% per annum from 25.10.2008 till the date of realization.
Draw decree accordingly.
(Dictated to the judgment writer directly on the computer, thereafter corrected and then pronounced by me in the open court, on this the 30th day of January 2017).
( BASAVARAJ ) XLI Addl. City Civil Judge, Bangalore.
ANNEXURE
I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 Sri Devaraj.U
b) Defendant's side:
D.W.1 N.Prakash
II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 Certified copy of sale deed dt.29.6.2006 32 OS No.7448/2009 Ex.P.2 Certified copy of agreement dt.14.12.2008 Ex.P.3 Certified copy of cancellation of agreement dt.14.2.008 Ex.P.4 Certified copy of joint development agreement dt.14.3.2008 Ex.P.5 Certified copy of GPA dt.14.3.2008 Ex.P.6 Certified copy of sale deed dt.25.10.2008 Ex.P.7 Original cheque dt.15.11.2007 Ex.P7(a) Signature of 1st defendant Ex.P.8 Copy of the legal notice dt.25.6.2009 Ex.P.9 UCP Ex.P.10 Postal acknowledgment Ex.P.11 Certificate of registration of firms Ex.P.12 Conversion certificate pertaining to the property Ex.P.13 Original construction license Ex.P.14 Original plan Ex.P.15 Construction structural plan
b)Defendants side :
Ex.D.1 Notice issued by Bruhath Bangalore
Mahanagara Palike
33 OS No.7448/2009
Ex.D.2 General Power of Attorney executed by the defendant Ex.D.3-5 Three receipts issued by Royal Construction company, DS Enterprises and IA Engineering works Ex.D.6 Letter issued by the Association members Ex.D.7 One receipt given by P.Shashidhar Reddy Managing Director of Venus Elevators Pvt. Ltd.
( BASAVARAJ ) XLI ADDL.CITY CIVIL JUDGE BANGALORE 34 OS No.7448/2009