Bangalore District Court
Ramesh Babu C L vs Srinivasa Mruthy K L on 20 April, 2024
1 O.S.No.2747/2020
KABC010105362020
IN THE COURT OF THE XII ADDL. CITY CIVIL JUDGE,
AT BENGALURU
Dated this the 20 th day of April, 2024
PRESENT: SRI. GANGADHARA.K.N., B.A.,LLM.,
XII ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH.No.27), BENGALURU
O.S.No.2747/2020
PLAINTIFF : 1. C.L. Ramesh Babu,
S/o. Late C.R. Lakshmaiah Setty,
aged about 50 years.
2. C.R. Sunitha,
W/o. C.L. Ramesh Babu,
aged about 42 years,
Both are r/at No.102,
1st Floor, Baldota Residency,
Opp. Himalaya School,
Uttarahalli,
Bengaluru 560 061.
(By Sri.H.S.P. Advocate)
VS.
DEFENDANTS : 1. K.L. Srinivasa Murthy,
2 O.S.No.2747/2020
S/o. late Lakshminarayan Setty,
aged about 74 years,
R/at Flat No.401,
Sri Poornapragna Apartment,
Govindarajanagar,
Vijayanagar,
Bengaluru 560 040.
2. K.S. Srihari,
S/o. K.L. Srinivasa Murthy,
aged about 38 years,
R/at Flat No.401,
Sri Poornapragna Apartment,
Govindarajanagar,
Vijayanagar,
Bengaluru 560 040.
(D1 : By Sri.B.C.V.
D2 : By Sri. R.R.K. Advocates)
Date of Institution of the : 20/6/2020
suit
Nature of the suit : Specific Performance
Date of commencement of : 28/2/2023
recording of the evidence
Date on which the : 20/04/2024
Judgment was pronounced
Total Duration Years Months Days
03 10 0
(GANGADHARA.K.N.)
XII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
3 O.S.No.2747/2020
JUDGMENT
The plaintiffs suit for specific performance of the agreement of sale dated 18/12/2019, wherein sought the direction to the defendants to execute the sale deed of the suit B-schedule property by receiving the balance sale consideration of Rs.1,05,27,660/- , with cost.
2. Plaintiff's case in brief is as follows:
The plaintiff's case is that, the plaintiff No.1 and 2 are the husband and wife. The defendant No.1 and 2 are the father and son.
3. The plaintiffs further contention is that, defendant, his daughter K.S. Lakshmi, and his son K.S. Srihari the 2nd defendant are the absolute owners in possession of land measuring 1 acre 9 guntas including 1 gunta of kharab land out of 2 acres 32 guntas of land in Sy.No.78/1 situated at Kengeri village, Kengeri Hobli, Bengaluru South Taluk. In fact, originally the land bearing Sy.No. 78/1 measuring 2 acres 32 guntas 4 O.S.No.2747/2020 including 1 gunta kharab land was belongs to Sanjeevamma W/o. Narasimhaiah, who died intestate by leaving her 3 sons namely Kadirappa, Basappa and Hanumappa. Thereafter Basappa also died by leaving his wife Basamma. Said Kadirappa, Hanumappa and Basamma, for their domestic necessity have sold western portion of 1 acre 9 guntas including 1 gunta kharab out of 2 acres 32 guntas of land in Sy.No. 78/1 in favor of Smt. K.S. Shakuntala Murthy, W/o. K.L. Srinivasa murthy, who is the wife of defendant No.1 herein under a registered sale deed dated 13/10/1995. Said Shakuntala murthy died on 1/2/2009 by leaving her husband the defendant No.1, son the defendant No.2 and daughter K.S. Lakshmi, who have got the joint khata and got converted the said property for non-agricultural and residential purpose. Thereafter the defendants and K.S. Lakshmi have got partitioned the said property under a registered partition deed dated 17/2/2018.
4. The defendants herein have agreed to sell the 5 O.S.No.2747/2020 property measuring 41x66 feet carved out of the land bearing Sy.No. 78/1, which is specifically described in the suit B-schedule property. But khata has not been bifurcated in respect of said portion of property. The plaintiff and defendants have entered into an agreement of sale dated 18/12/2019, under which the defendants have agreed to sell the property measuring East to West 41 feet, North to South 66 feet, in all measuring 2706 Sft., for a consideration of Rs.1,38,27,660/-, under which the 1st defendant is seller and 2nd defendant is the consenting witness. Though the daughter of the defendant No.1 agreed to be a consenting witness, due to her non-availability, she could not sign as a consenting witness to the said document. Under the agreement of sale the plaintiffs have paid Rs.27,00,000/- as advance sale consideration. On the request of the defendants, the plaintiffs have paid further amount of Rs.6,00,000/- by way of cash on 23/12/2019, thus against the total consideration they claims to have paid in all 6 O.S.No.2747/2020 Rs.33,00,000/-.
5. In the first week of January 2020, the defendants came before them and informed that they have sold the western side of suit B-schedule property measuring 41x55 in favour of some third party entering into an agreement of sale with the purchaser, for which they sought some reasonable time to execute the registered sale deed of remaining portion in the suit B- schedule property. In this regard, the plaintiffs have claims to have demanded the defendants to supply the document showing the extent of portion in the suit B schedule property sold in favour of some third party. And also requested to furnish the encumbrance certificate, khata issued by BBMP to get the registered sale deed. For which the defendants have promised to furnish the same at the earliest. In fact, the defendants were obligated to pay up to date taxes and even they are obligated to supply the copies of the tax paid receipts. In the meantime, the plaintiffs have received the letter dated 7 O.S.No.2747/2020 21/2/2020 from the defendants, wherein they cancelled the agreement of sale, alleging that the plaintiffs have not performed their part of contract with in 2 months agreed therein. But, the plaintiffs have contended that, the under the agreement 3 months time has been fixed, transaction should have been completed on or before 18/3/2020. But, the defendants who by receiving the original agreement of sale to have a copy, without their knowledge have got changed the date of performance as 18/2/2020. from 18.3.2020. But, in fact, the 3 months time period was agreed between the parties. Within that period the plaintiffs were always ready and willing to perform his part of contract, provided the defendants provided the additional documents such as khata, tax paid receipts, layout plan, encumbrance certificate. Thus the plaintiff got issued the notice dated 3/3/2020 and 17/3/2020. As the defendant No.1 took the inconsistent stand, firstly he has sent formal notice by canceling the agreement and forfeiting the advance sale consideration, 8 O.S.No.2747/2020 latter they granted time till 18/3/2020. Again a week time was granted. But, on all the time the plaintiffs have requested the defendants to supply the documents to perform their part of contract. In the meantime there was a Covid break down, followed by lock down, thus there was a communication gap between the parties. Even they could not contact his counsel as he stayed in his native place due to declaring of lock down and closure of Court. In the meantime the plaintiff no.1 claims to have suffered serious health issues.
6. Its been alleged that, its the defendants have defaulted in performing their part of contract. Its Thus the plaintiff contended that Its the defendants have defaulted in performing their part of contract and in the mean time, they made an efforts to sell a portion of suit property some third party, infact they said they have sold a portion to some third party, despite demanding to furnish said document, not complied. Thus plaintiffs prayed to decree the suit for specific performance of 9 O.S.No.2747/2020 agreement of sale dated 18/12/2019.
7. Along with the suit the plaintiffs have filed an application under order 39 Rule 1 & 2 of C.P.C. by seeking ad-interim temporary injunction order restraining the defendants from alienating the suit schedule property pending disposal of the same. But this Court was pleased to order for emergent notice. The defendant after receipt of suit summons appeared and filed their written statement, admitted the title of the suit schedule property stating that the suit B-schedule property is the portion of suit A-schedule property, which has been kept for sale as they were in dire need of money to clear off the loan liability availed from banker and also from private lender to commence the project of the defendant No.2. The broker introduced the plaintiffs, claiming that they are interested to buy the suit property, accordingly negotiation had took place, for which the defendant No.1 agreed to sell the suit B-schedule property for a consideration of Rs.1,38,27,660/-, received 10 O.S.No.2747/2020 in all Rs.33,00,000/- as advance sale cosnideration in two installments. The defendants have contended that, as they were in need of urgent money, they agreed to sell the suit B-schedule property for Rs.20,00,000/- less than the market value.
8. The defendants have contended that, the plaintiffs have agreed to perform his part of contract by paying the balance sale consideration on or before 31/1/2020. However, it has been extended up to 18/2/2020, but their case is that at no point of time there was a talks and agreement to fix the time period for 3 months. Time is the essence of the contract..Both the parties were obligated to complete the sale transaction within 2 months ie., on or before 18/2/2020. But, it is the plaintiff failed to perform his part of contract. Thus the defendant canceled the agreement, forfeited the consideration. Thus the suit of the plaintiff is not maintainable as its been filed based on agreement prepared on the insufficiently stamped document, further 11 O.S.No.2747/2020 as the defendants have already canceled the said agreement, thus suit is not maintainable. They also contended that they have supplied all the documents to the plaintiffs. Infact the plaintiffs have defaulted the terms of the contract, as they entered into an agreement, having no sufficient money with them to perform their part of contract, but agreement is attempt to gain unlawfully. In fact, it is the plaintiffs have defaulted from discharging their performing his part of contract. The defendant admitted that the suit B-schedule property is the portion of suit A-schedule property, in a registered partition entered between him and his 2 children, the suit B-schedule property fallen to his share. He denied the tampering of date of performance of contract in the agreement of sale entered between him and the plaintiffs, infact the change of date of performance was on mutual consent. He also denied that after entering to the agreement of sale with the plaintiffs. The defendants have clearly the denied the case of the plaintiffs that, during 12 O.S.No.2747/2020 the subsistence of agreement of sale, they are not made no attempt to sell any portion of the suit B Schedule property. It is the false contention taken by the plaintiff, with intent to avail more time and nothing else.
9. The defendants further contended that the defendants were in dire need of money to pay their bank loan, also to clear off the loan to the private lenders. With intent to clear all the said loan have agreed to sell the suit schedule property in favor of the plaintiffs, by taking the promise of the plaintiffs, they promised to their lenders to discharge their loan payment on or before 18/2/2020. As the plaintiffs failed to make the payment, the defendants sold the some other property for a lesser price.
10. The defendants have admitted the execution of agreement of sale dated 18/12/2019 in favor of plaintiffs herein. Admitted the receipt of advance sale consideration of Rs.33 lakhs, from the plaintiff and even the quantum of sale consideration agreed under the 13 O.S.No.2747/2020 agreement of sale to sell the suit B-schedule property. Also contended that, in fact its the defendants were always ready and willing to perform their part of contract, committed no breach by them. As the plaintiff fails to adhere to the terms of the contract, thus the defendants have canceled the said agreement, forfeited the advance amount. Thus the plaintiff is not entitled for the equitable relief of specific performance of agreement of sale dated 18/12/2019. Thus prays to dismiss the suit with cost.
11. In the initial stage itself the defendant raised an objection that agreement of sale being prepared on the insufficiently stamped document. Accordingly same has been impounded, on which the plaintiff paid the deficit duty and penalty.
12. Thereafter this Court heard the arguments of the both the plaintiff and defendant on I.A.No.1, as the plaintiff made out the prima-facie case, this Court was pleased to grant an interim injunction restrained the 14 O.S.No.2747/2020 defendants from alienating or encumbering suit B- schedule property pending disposal of the suit.
13. By considering the pleadings of the parties this court was pleased to frame the following issues :-
1. Whether the plaintiff proves that, he was always ready and willing to perform his part of contract?
2. Whether the plaintiff proves that, it is the defendant without his knowledge had changed the date of performance of the contract as 18/2/2020 by striking out the actual date of 18/3/2020?
3. Whether the plaintiff made out the grounds to grant the relief of specific performance of the contract?
4. Whether the defendants proves that, the time was the essence of the contract?
5. Whether the defendants proves that, as the plaintiff fails to perform his part of contract, thus he by issuing the notice has cancelled the agreement of sale dated 18/12/2019, thus the defendant liable to return the advance amount to the plaintiff after deducting the interest @ 24% p.a on the sale consideration as compensation from the date of failure to cancellation of agreement?
6. What order or decree?15 O.S.No.2747/2020
14. The plaintiff No.1 in order to prove their case, examined himself as P.W.1 and in all produced 14 documents which were marked as Ex.P.1 to 14. the learned counsel for the defendants have cross examined the P.W.1, but during the cross-examination they have confronted one document to the P.W.1 which got marked as Ex.D1. But the defendants have not chosen to lead their evidence.
15. Heard the arguments of the learned counsel for for the plaintiffs and defendants. Both the plaintiffs and defendants during the arguments have placed the following decisions :-
16. The learned counsel for the plaintiffs during arguments placed reliance on :
1. (2021) 17 SCC 705 Sughar Singh Vs. Hari Singh, dead by Lrs and others.
2. (2020) 11 SCC 79- Bhavyamma Vs. K.V. Balan, dead through Lrs.
3. (2011) 1 SCC 429 J.P. Builders and others Vs. A. Ramadas Rao and others.16 O.S.No.2747/2020
17. The learned counsel for the defendants during arguments placed reliance on :
1. Mehaboob Ur Rehman Vs. Ahsanal Ghani 2019 SCC 19 415.
2. Shenbagam Vs. K.K. Rathinavel 2022 SCC Online SC 71.
3. Haridasan Vs. Annapath Parak 2023 SCC Online SC 36.
18. My finding on the above issues are :-
Issue No.1: In the affirmative Issue No.2: In the affirmative Issue No.3: In the affirmative Issue No.4: In the negative Issue No.5: In the Negative.
Issue No.6: As per final order, for the following:-
REASONS
19. Issue No.1 to 5 : Since all four issues are interconnected, in order to avoid repetition of facts and 17 O.S.No.2747/2020 evidence, they are taken up for common discussion.
20. It is the case of the plaintiffs that, the land bearing Sy.No.78/1, measuring 1 acre 9 guntas including 1 gunta of kharab out of 2 acres 32 guntas of land situated at Kengeri village, Kengeri Hobli, Bengaluru South Taluk, Bengaluru, has been purchased by Smt. K. Shakunthalamurthy Wife of the Defendant No.1 herein under a registered sale deed dated 13/10/1995. But, she died leaving her husband the defendant No.1, her 2 children, the defendant No.2 and daughter named Lakshmi. The legal heirs of late Smt. K. Shakunthalamurthy have got converted the 1 acre 9 guntas including 1 gunta kharab for non-agricultural residential purpose. As the converted land comes within the jurisdiction of BBMP, the defendants and Smt. K.S. Lakshmi have got the joint khata from the BBMP in respect of land measuring 53361 Sf., and later they got partitioned under registered partition deed dated 18 O.S.No.2747/2020 17/2/2018. The suit B-schedule property which is measuring East to West 41 feet, North to South 66 feet, in all measuring 2706 Sft., bounded by East by 100 feet road, West by private property, North by 80 feet passage, South by private property is a portion of land in suit A- schedule property, fallen to the share of the defendant no.1. More precisely, the said site being carved in the land fallen to the share of the defendant No.1 herein. These aspects are undisputed.
21. It is further contention of the plaintiffs are the husband and wife, and the defendant No.1 and 2 are the father and son. The defendant no.1 with intent to sell the suit B-schedule property entered entered into an agreement of sale dated 18/12/2019 for an amount of Rs.1,38,27,660/-, under which the plaintiffs have paid Rs.27,00,000/- as advance sale consideration. And later on the demand of the defendants, the plaintiffs have paid additional advance amount of Rs.6,00,000/-, its not in 19 O.S.No.2747/2020 dispute, the defendants in all have received Rs.33,00,000/-, wherein the plaintiffs are liable to pay the balance sale consideration of Rs.1,05,27,660/-. Even these aspects are undisputed.
22. It appears, the problem was started between the parties with regard to time agreed to complete the sale transaction. It is the defendants contended that they were in urgent need of money to clear of their loan liability to their banker and the money availed from the private individuals. Thus they have agreed to sell the suit B-schedule property less than the market value. In fact, the plaintiff was agreed to perform his part of contract before 30/1/2020. However, date being fixed to perform the contract on 18/2/2020. As the plaintiffs have failed to perform their part of contract within the date fixed, thus they have got canceled the agreement of sale by issuing a notice as per Ex.D1. Service of Ex.D1 to the plaintiff is an undisputed fact. But, the plaintiff 20 O.S.No.2747/2020 disputes on the time period agreed under the Ex.P1 agreement of sale. Their contention is that, as per the agreement, 3 months time being fixed. Thus the parties were supposed to perform their part of contract on or before 18/3/2020. Its the contention of the plaintiffs that, in the agreement of sale, the defendant no.1, without the knolwedge the altered the date 18.3.2020 as 18.2.2020. Thus Ex.D1 is not binds on him. If these aspects are considered, firstly, it is necessary to examine the Ex.P1 agreement of sale to see, that is the period agreed by the parties? dos really the time is the essence of contract, does really the parties have agreed to complete the contract on or before 18/2/2020 or 18/3/2020.
23. If the said document is perused, firstly with regard to date fixed for contract is concerned, in clause-8 of the agreement the parties have specifically agreed that, time is the essence of the contract. But, the next 21 O.S.No.2747/2020 question would be what was the time agreed by the parties. Whether it is on 18/2/2020 or 18/3/2020. In the said clause itself, in the words it has been mentioned as "within a period from 3 months". But, accordingly even the date in number was also mentioned as on or before 18/3/2020. But, subsequently the number 3 has been stricken by alteration on which number 2 has been substituted in the place of 3. And on the extreme left of the page, there is a signature as if showing alternation has been acknowledged by Mr. C.L. Rameshbabu, and same was done as on the date of execution itself. But the said signature is not forthcoming right where the alteration is carried out, but it do not carries the signature of both the plaintiffs and signature of the defendants are not forth coming.
24. The contention of the plaintiffs are that, changes of date of execution was made by the defendant no.1, without their knowledge. The signature on the 22 O.S.No.2747/2020 extreme left of clause of 8 is not belongs to the plaintiff no.1, its his forged signature.
25. In the above background, this Court examined the signature the allegedly belongs to the plaintiff no.1 in the Ex.P1. Ex.P1(b) his admitted signature, which is in blue ink. Ex.P1(a) is his disputed signature, which is grey ink. The name of the plaintiff no.1 is C.L.Rames Babu. In Ex.P1(b) name "babu" is written by using all small letters of alphabet, but in Ex.P1(a) "Babu" commences with capital letter. If these aspects are considered, it appears the contention of the plaintiffs may be right that Ex.P1(b) may be forged signature of the plantiff no.1 for two reasons, firstly if at all the Ex.P(1)(a) and(b) are signed simultaneously, both should be therein either in fully blue or in grey, but they cannot be in two separate ink. Secondly, the vary in signature, there is a clear difference. Thirdly, even assuming that the Ex.P1(a) is also signature of the plaintiff no.1, but its both the 23 O.S.No.2747/2020 plaintiffs are the parties to the contract, where the changes are happened, there must be a signature of both the plaintiffs and defendant no.1. Fourthly, despite alteration of month in number, but even now in the words the month fixed for performances is categroically forthcoming as Three Months . Thus this Court do not agree with the defendants that firstly the time was the essence of the contract. Secondly, it is the two months time period was fixed to perform the contract, it should be completed on or before 18/2/2020. If that is so, even the period written in the words ought to have been changed in the clause-8 of the Ex.P1 document. Thus this Court is of the opinion, firstly the time was not the essence of the contract, secondly 2 months was not the period agreed by the parties, it was the 3 months, the parties have to complete the sale transaction on or before 18/3/2020.
26. Whether the plaintiffs were ready and willing to 24 O.S.No.2747/2020 perform their part of contract is concerned, it is the plaintiff categorically pleaded that, they were always ready and willing to perform their part of contract to get the registered sale deed by paying the balance sale consideration. To avail a loan from the banker, some more documents were in need of it, particularly khata, tax paid receipt, encumbrance certificate. Thus he got issued the notice dated 3/3/2020 as per Ex.P2. But it is the defendants have not supplied the same. But wherein the defendants have contended that they have supplied all the documents. They were not obligated to give any such documents. In this regard there is a reference in the agreement of sale at Ex.P1. In this regard it is necessary to have a look on the clauses of the agreement of sale. If the said document is perused, in clause-10 of the agreement of sale, it has been stated that, vendor has provided title and other documents in respect of the suit schedule properties. Further they have agreed to provide all such documents required to clear the legal 25 O.S.No.2747/2020 requirements at his cost and expenses. And also agreed to deliver the original documents pertaining to the suit B- schedule property at the time of registration. This clause says the different story. Thus the contention of the defendant cannot be accepted that he had supplied all the documents, they were not in obligations to provide any documents.
27. The learned counsel for the defendant during the arguments vehemently contended that the plaintiff has agreed to purchase the B-schedule property by receiving the documents available as on that date. But with intent to delay the proceedings to avail some more time the plaintiffs have raised an objection that they are in need of some more documents. Thus the contention of the plaintiff cannot be accepted.
28. The above aspect of the defendant cannot be accepted as valid and proper. To make it marketable title, it is the defendants were obligated to furnish all the title 26 O.S.No.2747/2020 documents for the purpose of perfecting the title. In that event they are obligated to supply the additional documents if they are very necessary. If the defendants really were not obligated to supply any document, they would have added such clause in their agreement and they would have asked to incorporate the clause that it is the plaintiffs have agreed to purchase the property by receiving the documents available as on that date. No such condition forthcoming in the agreement of sale. Firstly in their agreement they have agreed to supply the additional document. In this regard the plaintiff also demanded the documents such as khata of the suit B- schedule property, encumbrance certificate, tax paid receipts, which are very much necessary to show the title and also enabling the plaintiff to get the registration. In fact, the defendants and Smt. Lakshmi who are the legal heirs of original landlord measuring 1 acre 9 guntas have got joint khata and later they have converted the said land, have got the khata for the land measuring 53361 27 O.S.No.2747/2020 Sft., immediately after partition the 1 acre 9 guntas including 1 gunta kharab got divided into 3 portions, based on which the defendant No.1 and 2 and Smt. Lakshmi might have got the khata in respect of their properties. In the property fallen to the share of defendant No.1, he carved the sites, he ought to have got the khata bifurcated on each site by paying the tax to the jurisdictional local authority. Without doing so, they cannot force the plaintiff to get the sale deed in as it is and how it is manner. Thus if the approach of the defendants are considered, they are not honest, genuine. In fact, they are not ready and willing to perform their part of contract by providing all the documents. In fact, in all the notices at Ex.P2, P4 and P7, the plaintiffs have categorically demanded the defendants to supply some more documents. Admittedly those documents have not been supplied by the defendant. In that event, It is the defendants have defaulted in performing their part of contract and in fact, they have failed to show their 28 O.S.No.2747/2020 readiness to perform their part of contract by providing all the documents.
29. The learned counsel for the defendant during his arguments vehemently contended that, the plaintiff No.1 is the real estate agent. He had no intention to purchase the suit B-schedule property for his benefit. By having meager money in his hand, entered into an agreement of sale with the defendants and he had put the property for a sale in the market to get a better prospects. As they could not find a buyer in time, as not even they were having sufficient money with them to perform their part of contract. To delay the same they have raised the objections with regard to demanding to produce additional documents. In fact, the plaintiff himself had knowledge that the defendant No.1 could not produce the documents demanded by him and he further contended that, in his notices he has not at all stated what is the sources of money he had to get the sale deed. 29 O.S.No.2747/2020 On a first time in the suit he has pleased that he had plan to avail a loan from the banker, thus he demanded some more documents from him, but he has not supplied and also he had requested his relative one Sureshbabu to provide financial assistance to complete the contract, but these aspects has not been whispered in any way in the notices and further to improve their case, the P.W.1 came with the statement of account pertaining to his relative Sureshbabu and his wife Swarna K.S.stating that it is Suresh babu and his wife Swarna K.S. were agreed to extend the financial assistance, which was not part of his pleadings. thus the plaintiff went on improving his case. If the statement of the plaintiff alone perused, they might have having around Rs.50 lakhs. Still they were short of huge money, which would clearly suggest that they were not ready and willing to perform their part of contract by having sufficient fund with him. On that ground alone the suit of the plaintiff is deserves to be dismissed. In this regard, he placed his reliance on the 30 O.S.No.2747/2020 decision of the Hon'ble Apex Court decided in Mehaboob Ur Rehman Vs. Ahsanal Ghani 2019 SCC 19 415, wherein held as follows:
Plaintiff seeking enforcement of specific performance of contract must aver in plaint and prove continuous readiness and willingness to perform his part of contract-However, averment not required to be mere mechanical reproduction of statutory words -requirement of such averment is not a matter of form but is of substance - Taking averment, conduct of plaintiff and evidence as a whole, court must be satisfied that plaintiff established his readiness and willingness to perform his part of contract.
30. But, wherein the learned counsel for the plaintiff contended that, in his notices he had categorically stated that they are ready to perform their part of contract. They had no occasions to say the source of money they had to perform their part of contract. 31 O.S.No.2747/2020 They were obligated to show from the date of agreement to till the date of completion of trial, they were always ready and willing to perform their part of contract by having sufficient fund with them. To prove the said fact, the plaintiffs have produced the statement of account of the plaintiff No.1 and 2 at Ex.P12, wherein the plaintiff No.1 in his account maintained with SBI was having Rs.6,25,787/-. And in his Karnataka bank account at Ex.P14 he is having in all Rs.27,63,874/- and the plaintiff No.2 in her account was having Rs.24,19,709/-. It means to say themselves were having an amount of more than Rs.55,00,000/- with them. And that apart, they had requested the plaintiff's brother-in-law one Sureshbabu to extend the financial assistance, even he was having sufficient amount both in his and his wife's account. To prove the said fact, produced the bank statement of Sureshbabu as per Ex.P10, in his account he was having around Rs.26,00,000/- as on the date of issuance of Ex.P2 notice. And as per the Ex.P11, which 32 O.S.No.2747/2020 is the statement of account of plaintiff No.1's brother-in- law's wife, she is having an amount of Rs.1,38,43,173/-. These amounts were available from the date of agreement to even today.
31. If the pleading of the plaintiffs and defendants on the point of readiness of the parties for performing their part of contract is concerned. The plaintiffs have pleaded that they were having sufficient sources to get the sale deed. And to prove his financial sources, produced the Ex.P10 to 14 documents. These are all not disputed by the defendants. Thus the contention of the defendants that since from the beginning the plaintiffs have had no sufficient source of money with them to perform their part of contract cannot be accepted. As the documents would clearly suggests that they were in possession of more than the double fund in their sources to perform their part of contract. Its not necessary to in the notice to by stating sources how does they are 33 O.S.No.2747/2020 arranging the funds for performing the contract. If the above documents are perused, the plaintiff had the sufficient sources from the date of agreement to even today. There is no room doubt the conduct of the plaintiffs, on their financial competency. Even the defendants doubt is just to denial, if at all the defendants had any doubt on the financial capability. And, also if at all the defendants have doubt that the Ex.P10 to 14 are are not genuine sources, they are just set up for the suit, they could have asked the plaintiff to call their relatives Suresh Babu and Smt. Swarna, to know does they really agreed to extend the financial support to the plaintiffs acquire the suit B Schedule property. But, now single question being posed to the P.W.No.1. In that event, there is no point in disputing the financial capability of the plaintiffs herein.
32. Now, its the duty of the defendants to prove their readiness and willingness. Its the contention of the 34 O.S.No.2747/2020 plaintiffs that, its the defendants have not supplied sufficient documents to enabling them to go for registration. Firstly, the document sought by the plaintiffs are really relevant? Does the defendants ought to have supplied those documents? Does the defendants have shown any interest to supply those documents to comply their part of contract are the questions would arise in the mind of this court?
33. The documents sought by the plaintiffs from the custody of the defendants are, Khahta of the suit B Schedule property, Tax Paid receipts, Encumbrance Certificate and Layout plan. In that event Khatha, Tax paid Receipts and latest Encumbrance Certificates are very relevant to go for registration. Admittedly, in all the notices the plaintiffs have demanded the defendants to supply those documents. Its not the case of the defendants that, they were not obligated, those documents are not relevant, or did they were ready to 35 O.S.No.2747/2020 supply those documents. Its their contention is that, they were not obligated to supply those documents, to that effect there is reference in the agreement of sale. In fact this court supra had made the observation on the clause 10 of the Ex.P1, wherein the defendants were agreed to supply additional document if any required by the plaintiffs. In that event, when the plaintiffs have had sought the additional documents, then they must answer to those queries by showing whey did they are not obligated to supply those documents. If at all they are genuine in their conduct, the moment after supplying the documents if the plaintiffs have not shown their inclinations to get the sale deed, then the contention of the defendants would have been accepted. Thus this Court has no doubt that the plaintiff was always ready and willing to perform his part of contract. In fact, they have made out the grounds to get the specific performance of the agreement of sale dated 18/12/2020. Thus, the decision in Mehboob-Ur-Rehman case is not 36 O.S.No.2747/2020 applicable to the case in hand. As the plaintiff's have proved that from the day one of the agreement, they were having sufficient money with their sources to perform their part of contract, but its the defendants who defaulted their part for contract. Thus, It is the defendants are duty bound to execute the registered sale deed by receiving balance sale consideration.
34. Though the defendants have pleaded that they have kept the suit B-schedule property for a sale as they were in urgent need of money to clear the bank loan and also loan availed from private person, to that effect no document being placed in this regard. Further contended that they have agreed to sell the suit B- schedule property less than market value, to that effect also not chosen to lead evidence. They further contended to clear all the loan they have sold their some other property for a lesser price. To that aspect also no document being produced.
37 O.S.No.2747/2020
35. In fact, the plaintiffs within 18/3/2020 they have caused the demand notice by expressing their intentions to purchase the suit property by paying the balance sale consideration, they have demanded the additional documents from the defendants, which are relevant even for the registration purpose. As without khata, tax paid receipts and nil encumbrance certificate, the tile of the B-schedule property cannot be perfected by the defendant No.1. When buyer investing huge money, he must obtain those documents before registration, otherwise there will be huge burden on the part of the plaintiffs. In that event, the defendants ought to have produced those documents. Secondly, in fact, if the conduct of the defendants are considered, they are totally inconsistent, they are in a hurry, they are trying to dictate the terms to the plaintiff, they behaved like being the landlord, they are the masters, the purchaser shall listen to them, thus in the sale transactions the purchasers have no right to raise voice against them. 38 O.S.No.2747/2020 The reason for saying so is, firstly on 21/2/2020 unilaterally the defendants have sent a notice as per Ex.D1 stating that they have canceled the agreement and ready to refund the advance amount. In Ex.P3 dated 12/3/2020 they granted time till 18/3/2020 to the plaintiff to get the registered sale deed by paying the balance sale consideration. But they have not whispered on readiness to supply the documents sought by the plaintiff. Further if the Ex.P5 reply notice dated 20/3/2020 is perused, they have stated that as the plaintiffs failed to perform their part of contract within the date fixed, however they have granted one week time to the plaintiffs to get the registered sale deed. In the notice dated 16/6/2020 they have stated that they have cancelled the agreement of sale, they have forfeited the part advance sale consideration, informed the plaintiffs collect remaining of Rs.24,60,000/- as they have kept ready the same by way of Cheque. But, in the suit the defendants have contended that they have forfeited the 39 O.S.No.2747/2020 entire advance sale consideration, the plaintiffs are not entitled for the relief sought in the suit. In fact, if at all the plaintiffs were not ready and willing to perform their part of contract as per Clause-9 of agreement of sale, the defendants are entitled to deduct 24% interest p.a. on the advance amount and return the balance. Further, if the clause-10 of the Ex.P1 is read, if the defendants failed to supply the additional documents, they have to refund the advance amount along with 18% interest p.a. Under the Ex.P1 document the defendants have no right to forfeit the entire advance amount. Thus the contention of the defendants that they have forfeited the entire advance amount, and they have canceled the agreement of sale, thus the suit itself is not maintainable cannot be accepted. Infact the defendants have taken such contention just to enrich themselves to cause loss to the plaintiffs.
36. As the plaintiffs are proved that they were 40 O.S.No.2747/2020 always ready and willing to perform their part of contract by having sufficient money with them and in their sources and to that effect they have produced the sufficient documents before this Court and the sources and the amount available with the plaintiff is concerned, the defendants have not disputed. Thus the plaintiffs entitled for the relief sought in the suit.
37. The plaintiff filed the present suit on 8/6/2020. In fact, the plaintiff pleaded that though the defendants have sent a notice to perform their contract under Ex.P5 and P6, but by that time there was a breakdown of Covid in the Country, national lock down was called, Courts have closed, advocates were not functioning, the publics are restrained moving freely in the public, thus he could not perform the contract in that period. However, by expressing his readiness and to get the sale deed he has approached the Court on 20/6/2020 itself at the earliest which is not in dispute. 41 O.S.No.2747/2020 Admittedly, by considering the situation existed in the country, the Hon'ble Apex Court in its suo-moto Writ Petition was pleased to exclude the period between 15/3/2020 to 28/2/2022 for the purpose of limitation. File the dispute before the court. Which explains the gravity of the covid, its effects caused to the humanity. Where the first priority before the responsible institution in the country by that time was to save the humanity from the pandemic. The State machineries were in serious business to protect the life of the public, strict measures were taken, conditions were imposed, lock down was called. For that, the activities taken place in this period has to be considered purely on humanitarian ground. However, by considering the fact that, there is a delay of more than 3 years in completing the contract. In between the value of the B-schedule property might have increased in the market, thus some benefit should be requires to be shared to the defendants as though the plaintiff paid Rs.30 lakhs still the plaintiffs are liable pay 42 O.S.No.2747/2020 an amount of Rs.1,05,00,000/-(one Crore Five Lakh). By considering the same, this Court is of the opinion, if the suit is decreed for specific performance of agreement of sale directing the plaintiff to pay the balance sale consideration with interest at the rate of 9% p.a. until depositng the same in this Court, that meets the ends of justice. Accordingly I answer issue No.1 to 3 in the affirmative, issue No.4 and 5 in the negative.
38. Issue No.6 :- As the plaintiffs proved their case, which deserves to be allowed. Accordingly, I proceed to pass the following :-
ORDER The suit of the plaintiff is decreed with cost.
The plaintiff is entitled for the Specific Performance of Agreement of Sale dated 18/12/2019 in the hands of the defendants with the condition that, he shall deposit the balance sale consideration of Rs,1,05,27,660/- along with interest @ 9% p.a. on the said amount for 43 O.S.No.2747/2020 the period between 18/12/2019 to till the date of depositing the same before this Court.
Directed the defendants to execute the registered sale deed of suit schedule property within 60 days from today, by receiving the balance sale consideration of Rs.1,05,27,660/- along with interest @ 9% p.a. as ordered above.
If the defendants fails to execute the sale deed by receiving the above said amount, directed the plaintiff to deposit the said amount in the account of this Court within 60 days and get the sale deed of the suit schedule property through the process of this Court.
Office is to draw the decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 20 th day of April, 2024 (GANGADHARA.K.N.) XII ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY 44 O.S.No.2747/2020 ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side :
P.W.1: C.L. Ramesh
(b) Defendants' side :
NIL II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Agreement of sale dated 18/12/2019 Ex.P.1(a) to (c) Signatures Exp.2 Notice dated 3/3/2020 Ex.P.3 Notice dated 12/3/2020 Ex.P.4 Notice dated 17/3/2020 Ex.P.5 Notice dated 20/3/2020 Ex.P.6 Notice dated 16/6/2020 Ex.P.7 Notice dated 18/6/2020 Ex.P.8 Certified copy of sale deed dated 11/10/1995 Ex.P.9 Conversion order dt16/10/2017 Ex.P.10 Statement of account of Sureshbabu Ex.P.11 Statement of account of Swarna K.S. 45 O.S.No.2747/2020 Ex.P.12 Statement of account of plaintiff Ex.P.13 Statement of account of Sunitha C.R. Ex.P.14 Statement of account of plaintiff
(b) Defendants side :
Ex.D1 Notice
XII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.