Bangalore District Court
Abbas Khan vs Mohammed Shafi Ulla on 9 January, 2025
KABC010013992014
Govt. of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for
Judgment in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY
(CCH.11)
DATED THIS THE 9th DAY OF JANUARY 2025
PRESENT: Sri. S. NATARAJ, B.A.L., LL.B.,
(Name of the Presiding Judge)
O.S.NO.4504/2014
PLAINTIFF Sri Abbas Khan,
S/o Fayaz Khan,
Aged about 33 years
R/at No.131, 132,
Yarab Nagar, BSK 2nd Stage,
Bangalore - 70.
[By Sri M.V.S.R., Advocate]
/Vs/
DEFENDANTS 1. Sri Mohammed Shafi Ulla,
S/o Abdul Sattar,
Aged about 50 years.
2. Smt. Humeera Bhanu
w/o Mohammed Shafi Ulla,
Age about 40 years,
Both r/at # 224, 32 'A' Cross
2
OS.No. 4504/2014
7th Block, Jayanagar,
Bangalore -560 011.
3. Sri M.N. Shobha
W/o Late Mariyappa @ Gangadhar
@ Krishnamurthy,
Aged about 58 years.
4. Smt. Pavithra
W/o Pradeep,
Aged about 37 years
Nos.3 & 4, 4th Main Road,
V.V. Mohalla, Mysore.
5. Smt. K. Smitha @ Savitha
W/o S. Sharath Chandra,
Aged about 34 years,
r/at # 47/41, 2nd Main,
5th Cross, Vidyaranyapuram,
Mysore.
6. Smt. Jyothi @ Tejashree
W/o Mohan Krishna,
Aged about 32 years
R/at # 920, 6th Cross,
9th Block, Nagarabhavi 2nd Stage,
Bangalore - 560 072.
[For D-1 & 2 by Sri K.S.R., Advocate]
[For D-3, 5 & 6 by Sri A.C.N., Advocate]
[D-4 : Exparte]
Date of Institution of the suit : 18-06-2014
Nature of the Suit : Partition
Date of commencement of recording
of evidence : 06-12-2018
3
OS.No. 4504/2014
Date on which the Judgment was
pronounced : 09-01-2025
Year/s Month/s Day/s
Total Duration : 10 06 21
(S. NATARAJ)
VI ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
This is a suit for following reliefs :
(a) To direct the defendants to effect partition and to execute registered sale deed in favour of plaintiff in respect of half share in the schedule property before the competent sub-registrar, Bangalore as he is entitled by virtue of sale agreement dated 16-03-2011 and put the plaintiff in separate possession thereof, failing compliance, this Hon'ble Court may be pleased to execute the registered sale deed in the name of the plaintiff by appointing Court Commissioner.
(b) Without prejudice to the above prayer or in the alternative direct the defendants to repay the 4 OS.No. 4504/2014 advance amounts paid by the plaintiff as his share of Rs.73,50,000/- together with damages of Rs.30,00,000/- in all Rs.1,03,50,000/- to plaintiff in the interest of justice and equity.
(c) Consequently, declare that the registered sale deed dated 13-08-12, Doc.No. GAN-1-01546/12-
13 of Book-I, stored in CD No.GAND138, in the office of the Sub-Registrar, Gandhinagar, Bangalore executed by the defendants No.3 to 6 in favour of the defendants No.1 and 2 herein in respect of the schedule property is not binding on the plaintiff in so far as his half share in the schedule property is concerned.
(d) To pass such other relief/s as this Hon'ble Court deems fit to grant under the facts and circumstances leading to the above suit including the cost of the suit in the interest of justice and equity.
2. The plaintiff's case in brief are as follows :
The defendant No.1 is the father-in-law and defendant No.2 is the mother-in-law of the plaintiff. 5
OS.No. 4504/2014 The defendants No.3 to 6 are the erstwhile owners of suit schedule property bearing No.14, totally measuring 3325.94 sq.ft., situated at Ramaiah Lane, Jolly Mohalla, Cart stand road, Bangalore. The defendants No.3 to 6 for family necessities have offered to sell the suit schedule property and entered into agreement of sale deed dated 16-03-2011 in favour of the plaintiff and defendant No.1 for sale consideration of Rs.2,74,20,490/-. The plaintiff and defendant No.1 jointly paid advance amount of Rs.1,47,00,000/- to defendants No.3 to 6 on various dates through cheques and cash. The defendants No.3 to 6 have acknowledged the receipt of advance consideration amount and they have not furnished the documents in respect of suit schedule property to conclude the sale. The plaintiff and defendant No.1 have jointly called upon defendants No.3 to 6 to comply the same by issuing legal notice, for which the defendants have issued replies instead of complying the terms.6
OS.No. 4504/2014 2(a). The plaintiff and defendant No.1 jointly filed a suit in OS No.7675/2011 against the defendants No.3 to 6 for permanent injunction. The defendant No.1 on behalf of the plaintiff was prosecuting the matter. The defendant No.1 fraudulently without the knowledge of the plaintiff behind his back obtained registered sale deed dated 13-08-2012 in respect of suit schedule property in his name and in the name of the defendant No.2. The plaintiff being the one of the co-sharer with defendant No.1 is entitled of possess the suit schedule property along with defendant No.1 to the extent of half share. The defendant No.1 suppressed the facts and obtained fraudulent sale deed in his name and in the name of his wife. The alleged sale deed would not create any right upon the defendants No.1 and 2, the plaintiff is also having interest over the same and entitled half share by virtue of sale agreement.7
OS.No. 4504/2014 2(b). The defendant No.1 in collusion with defendants No.3 to 6 the suit in OS No.7675/2011 was got it dismissed by filing Memo on 12-09-2012 without the knowledge of the plaintiff and consent. After coming to know about the fraudulent sale deed the plaintiff issued a legal notice on 03-04-2014 calling upon the defendants to effect the partition and to execute the sale deed in respect of half share in the schedule property. The defendants issued replies by creating false story that the plaintiff has executed cancellation of agreement on 12-08-2012 by receiving his share of Rs.73,50,000/- by way of cash and he had given NOC for execution of sale deed in favour of defendant No.1 and he was also present on the date of alleged registration of sale deed. 2(c). The plaintiff has not terminated the sale agreement dated 16-03-2011 by executing the cancellation sale agreement dated 12-08-2012 or received his share of amount from defendants at no 8 OS.No. 4504/2014 point of time. The defendants have created the said cancellation sale agreement in support of illegal sale deed dated 13-08-2012. Thus, the plaintiff is entitled half share in the suit schedule property by virtue of sale agreement, as he has invested more than half price along with defendant No.1. The plaintiff was ready and willing to abide by the terms of the contract. Hence, suit for partition and specific performance and alternative relief for refund of his share with damages and for consequential relief that the sale deed is not binding to the extent of his share.
3. After service of summons the defendants No.1 to 3, 5 & 6 appeared through their respective counsels. The defendant No.4 placed exparte. The defendant No.1 filed a written statement, the defendant No.2 adopted the written statement of defendant No.1. The defendant No.3 filed a written 9 OS.No. 4504/2014 statement. The defendants No.5 & 6 adopted the written statement of defendant No.3.
4. The defendant No.1 in his written statement has contended that the suit of the plaintiff is not maintainable. He has no right to sue for partition for recovery of Rs.1,03,50,000/- or declaration in respect of sale deed. The plaintiff voluntarily came out from the agreement of sale dated 16-03-2011. The 1 st defendant to avoid penal consequences of non- performance of agreement of sale he went ahead with payment of balance amount due to defendants No.3 to 6 and concluded the sale transaction. The plaintiff has not contributed any amount towards sale consideration and his name is shown in the agreement of sale only for the reason he being a son- in-law. The plaintiff to wrack vengeance has filed a suit. The agreement dated 16-03-2011 was terminated by the plaintiff with defendants No.3 to 6 by way of cancellation of sale agreement on 10 OS.No. 4504/2014 12-08-2012. The earlier agreement does not confer any right to the plaintiff and prayed for dismissal of suit.
5. The defendant No.3 in the written statement has contended that the suit is barred by limitation and hit by Order II rule 2 CPC. The plaintiff and defendant No.1 approached defendant No.3 and agreed to purchase the suit schedule property for sale consideration of Rs.2,74,20,490/- and entered into agreement of sale dated 16-03-2011 and paid advance amount of Rs.1,47,00,000/- to defendants No.3 to 6. Subsequent to the plaintiff and defendant No.1 requested defendants No.3 to 6 seeking extension of time to conclude the sale process as they were not able to arrange balance consideration amount. Subsequently, plaintiff and defendant No.1 approached the defendants No.3 to 6 expressed inability to pay the balance amount of his share. The plaintiff wanted to withdraw from the execution of 11 OS.No. 4504/2014 sale agreement dated 16-03-2011. Accordingly, the plaintiff has executed cancellation of sale agreement on 12-08-2012 by receiving his share of amount of Rs.73,50,000/-.
5(a). The plaintiff has given No Objection to defendants No.3 to 6 to sell the suit schedule property to defendant No.1 or any other person. Accordingly, defendants No.3 to 6 have executed registered sale deed on 13-08-2012 in favour of the defendants No.1 and 2. The defendants No.3 to 6 were not aware of suit in OS 7675/2011 filed by the plaintiff and defendant No.1. The summons were not served upon them and they were not aware of the dismissal of the suit. Only after receipt of notice from this suit, they came to know about the earlier suit. The valuation of suit is not correct. No cause of action to file a suit and prayed for dismissal. 12
OS.No. 4504/2014
6. On the basis of pleadings, 7 issues are framed are as follows :
ISSUES
1) Whether plaintiff has been/is ready and willingness to perform part of the contract on the strength of the agreement of sale dated 16.3.2011 in respect of half portion in suit property ?
2) Whether plaintiff is entitled the refund of advance amount of his share of Rs.73,50,000/- along with damages as prayed for ?
3) Whether defendants 3 to 6 prove that the plaintiff, by receiving advance amount of Rs.73,50,000/- has executed cancellation of sale agreement dated 12.8.2012 by canceling the agreement of sale executed dated 16.3.2011 ?
4) Whether plaintiff is entitled the decree as prayed for ?
5) What order or decree ?
ADDITIONAL ISSUES
1) Whether defendant No.3 proves suit is hit by
Order II Rule 2 CPC ?
2) Whether defendant No.3 proves that the plaint is
not properly valued and payment of court fee is insufficient ?
7. The plaintiff examined himself as PW.1. Exs.P-1 to P-13 documents are marked. The defendant No.1 13 OS.No. 4504/2014 examined as DW.1. The defendant No.3 examined as DW.2. In her support DWs.3 and 4 are examined. In all Ex.D-1 and D-2 documents are marked on behalf of defendants.
8. Heard counsel for the plaintiff to defendants No.1 and 2 and counsel for defendant No.3, 5 & 6. The plaintiff has submitted Memo dated 12-12-2024 with citations and defendants No.3 to 6 submitted Memo dated 05-12-2024 with 17 citations. Perused the records.
9. My findings on the above Issues are as follows:
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In the Affirmative
Issue No.4 : In the Negative
Addl. Issue No.1 : In the Negative
Addl. Issue No.2 : In the Affirmative
Issue No.5 : As per the final order,
for the following:
14
OS.No. 4504/2014
REASONS
8. ISSUES NO.1 TO 3: All the issues are taken together for common consideration to avoid the repetition of facts.
8(a). The plaintiff in support of his pleadings filed chief-examination affidavit deposing that he and defendant No.1 have entered into sale agreement dated 16-03-2011 at Ex.P-14(a) in respect of suit schedule property with defendants No.3 to 6 for sale consideration of Rs.2,74,20,490/- and paid advance sale consideration of Rs.1,47,00,000/- on various dates through cheques and cash jointly by him and defendant No.1. Subsequently, defendants No.3 to 6 have not furnished the documents within time so as to get the registered sale deed. The plaintiff and defendant No.1 got issued notices to defendants demanding them to execute the sale deed. Reply has been issued and thereafter suit in OS 7675/2011 15 OS.No. 4504/2014 was jointly filed by the plaintiff and defendant No.1 against the defendants No.3 to 6. PW.1 further deposed that subsequently defendants No.1 and 2 in collusion with defendants No.3 to 6 have obtained registered sale deed dated 13-08-2012 at Ex.P-4 in favour of defendants No.1 and 2 and created the cancellation of sale agreement dated 12-09-2012. The plaintiff at no point of time has executed cancellation of agreement and received Rs.73,50,000/- by way of cash and it is created by the defendants. The plaintiff, who is one of the co-sharer is entitled to possess the suit schedule property along with defendant No.1 in respect of his half share. He is ready and willing to abide by the conditions. Therefore, filed the suit after issuing notice.
9. The DW.1 - defendant No.1 deposed as per the written statement contentions that subsequent to obtaining the sale agreement by himself and plaintiff 16 OS.No. 4504/2014 from defendants No.3 to 6, the plaintiff has withdrawn his part of contract as he has no funds to pay balance sale consideration amount and executed cancellation of sale agreement in favour of defendants No.3 to 6. Subsequently, defendant No.1 to avoid penal consequences paid the balance sale consideration amount and obtained registered sale deed at Ex.P-4 from defendants No.3 to 6. The plaintiff has no right to seek for partition, refund of his share and for declaration.
10. The DW.2 -defendant No.3 in her chief- examination affidavit deposed as per the written statement contention that the plaintiff has withdrawn his part of contract, executed Ex.D-1 cancellation of sale agreement. Thereafter, as per Ex.P-4 sale deed has been executed in favour of defendants No.1 and
2. The plaintiff has no right to claim right over the suit property. She also deposed the plaintiff has received his part of consideration amount. 17
OS.No. 4504/2014
11. The DW.2 - Chikkaboranna, Notary Public deposed that on 12-08-2012 the plaintiff and defendants No.3 to 6 along with two witnesses approached him in the office and notarized the cancellation of sale agreement dated 12-08-2012. Parties have affixed their signatures before him. He has noted in the register maintained by him. He identified the signature of plaintiff as Ex.D-2(b). Ex.D-2 is the notarized register extract maintained by him. The plaintiff signature in Ex.D-1 is also identified by the Notary Public.
12. The DW.2 - S. Sharathchandra - witness to Ex.D-1 and he speaks regarding execution of cancellation of sale agreement by the plaintiff by receiving his share of amount of Rs.73,50,000/- by way of cash before the Notary Public. Along with him one Ameen has also signed as witness to cancellation of sale agreement.
18
OS.No. 4504/2014
13. The plaintiff has produced the order sheet in OS No.7675/2011 at Ex.P-1. Ex.P-2 is the plaint. Ex.P- 3 is the Memo filed in the said suit on 12-09-2012 withdrawing the suit for injunction filed by the plaintiff and defendant No.1 jointly. Ex.P-4 is the certified copy of the sale deed dated 12-08-2012 executed by the defendants No.3 to 6 in favour of defendants No.1 and 2 jointly. Ex.P-5 is the legal notice by defendant No.1. Exs.P-6 to P-9 are the postal acknowledgments. Ex.P-10 is the reply notice by defendant No.1. Ex.P-11 is the Khatha extract standing in the name of defendant No.1. Exs.P-12 and P-13 are the plaintiff's notarized Aadhaar cards. Ex.P-14 is the notice.
13(a). Ex.P-14(1) is the copy of sale agreement marked as secondary evidence. At this stage itself admissibility of Ex.P-14(1) sale agreement is to be considered. At the time of marking of documents the defendants have objected for marking of documents 19 OS.No. 4504/2014 on the ground that the original agreement itself is not sufficiently stamped, the copy of the agreement cannot be marked as secondary evidence. The Court observed that the stamp duty is payable only in respect of original instrument not in respect of copy. Therefore, the document was marked. However, during the course of arguments, the learned counsel for the defendants No.3 to 6 relied upon the judgment of the Hon'ble Apex Court reported in (2024) SCCR 170 Vijay vs. Union of India and others, wherein it has been clearly held that :
" If a document that is required to be stamped is not sufficiently stamped, then copy of such document as secondary evidence cannot be adduced. Where a document cannot be received in evidence on the ground that it is not duly stamped, secondary evidence thereof is equally inadmissible in evidence."
In view of the above said judgment, the original Ex.P-14(1) sale agreement cannot be received in evidence on the ground that it is not duly stamped, the secondary evidence thereof at Ex.P-14(1) is 20 OS.No. 4504/2014 inadmissible in evidence. Therefore, Ex.P-14(1) is inadmissible in evidence and cannot be considered.
14. The learned counsel for the plaintiff in his arguments submitted that Ex.P-14(1) sale agreement dated 16-03-2011 is admitted and payment of advance amount of Rs.1,47,00,000/- was paid by the plaintiff and defendant No.1. The defendants No.3 to 6 without the plaintiff knowledge executed the sale deed at Ex.P-4 in favour of defendants No.1 and 2. The defendant falsely contended that the plaintiff has executed Ex.D-1 cancellation of sale agreement and paid his share amount. The plaintiff has disputed the execution of Ex.D-1 and receipt of amount. The photographs of plaintiff is not affixed on Notary register Ex.D-2 maintained by DW.3. The plaintiff has not signed in Ex.D-1. The plaintiff has not visited the office of Notary or executed Ex.D-1 or received amount from defendants No.3 to 6. 21
OS.No. 4504/2014 14(a). The counsel further submits that in Ex.D-1 there is no recital from whom the plaintiff has received the amount. DW.1 in his evidence deposed, he paid the amount, whereas DW.2 and 4 deposed that defendants No.3 to 6 have paid the amount in cash. DW.3 deposed that the amount was paid in Rs.2000/- and Rs.500/- denomination currency. The alleged Ex.D-1 was executed in the year 2012. Rs.2000/- currency notes were introduced in the year 2016. Therefore, it is argued that the amount was paid in Rs.2000/- currency notes is improbable. There is no proof that Rs.73,50,000/- was paid to the plaintiff at the time of alleged execution of Ex.D-1. 14(b). The counsel further submits, the evidence of DWs.1 to 4 is inconsistent and contradictory in respect of execution of Ex.D-1. The defendants have relied upon the so-called admission of PW.1 admitting his signature in Ex.D-1 and it is stray sentence, it cannot be considered as admission. The 22 OS.No. 4504/2014 counsel submits, the entire pleading and evidence of PW.1 has to be looked into before accepting the so- called admission. The plaintiff in his plaint and evidence categorically disputed and denied the execution of Ex.D-1 and signature. Therefore, he has argued that PW.1 admission is stray sentence, cannot be looked into.
14(c). The counsel further submits that earlier suit at Ex.P-1 was jointly filed by the plaintiff and defendant No.1. The defendant No.1 was prosecuting the matter without the knowledge of the plaintiff he got withdrawn. The plaintiff has no knowledge. The earlier suit was filed for permanent injunction, whereas the present suit is for partition and specific performance and declaration. The cause of action in both suits are different. During pendency of earlier suit the sale deed was not executed. After execution of sale deed by defendants No.3 to 6 in favour of defendants No.1 and 2, the present suit is filed. The 23 OS.No. 4504/2014 cause of action is totally different from earlier suit. Order II rule 2 CPC is not applicable. 14(d). The counsel submits that the plaintiff has sought relief in respect of his half share and valued the suit in respect of his half share and paid Court fee. He relied upon the judgment reported in ILR 1996 KAR 841 Nagarathna S. Murthy vs. Padma Prakash Shetty, wherein it is held that :
" Consideration mentioned in the agreement less the amount of consideration as mentioned in the two sale deeds already executed has to be taken as the amount on which the plaintiff is liable to pay Court fee. No question of separately valuing the assets arises."
Based on the said judgment, the counsel has submitted that the valuation of the suit and payment of Court fee is correct and proper.
14(e). The counsel also submitted by referring Sec.42, 43 and 69 of Contract Act and submitted that Ex.P-14(1) agreement was fully performed by the defendants No.3 to 6 in favour of defendants No.1 24 OS.No. 4504/2014 and 2, but not in favour of plaintiff. There is no specification of liability separately in the agreement. The plaintiff has invested the amount. He is entitled to seek for share in the property. The amount paid by the defendant No.1 as sale consideration amount is also on behalf of the plaintiff. Therefore, he has contended, the suit is maintainable. The relief claimed by the plaintiff are sustainable and prayed for decreeing the suit.
15. The counsel for the defendants No.1 and 2 submitted that the plaintiff suit for partition and specific performance in the absence of joint ownership is not maintainable. The plaintiff has executed Ex.D-1 cancellation of sale agreement. The agreement at Ex.P-14(1) is not subsisting and no right to seek for partition and consequential relief. The counsel further submits that the plaintiff has not sought any relief in respect of Ex.D-1 cancellation of sale agreement, without there being any cancellation 25 OS.No. 4504/2014 the plaintiff has no right to seek for partition, specific performance, declaration and refund of his share amount.
15(a). Under Sec.54 of T.P. Act agreement does not create any interest or charge of immovable property. In the plaint there is no pleading as required under Order VI rule 4 CPC about the fraud. The plaintiff case based on fraud does not survive. The plaintiff suit not based on the basis of Ex.D-1 cause of action. The PW.1 has admitted that defendants No.1 and 2 not agreed to give share to the plaintiff. This suit is not maintainable. The plaintiff has failed to prove case and prayed for dismissal.
16. The counsel for defendants No.3, 5 & 6 argued that defendant No.3 in the pleadings has contended that the agreement at Ex.P-14(1) was cancelled by the plaintiff by taking advance amount of his share and executed Ex.D-1. The plaintiff has no fund to 26 OS.No. 4504/2014 perform his part of contract. The agreement does not create any right or charge in immovable property. There is no preexisting right to seek for partition. The plaintiff should have filed a suit for specific performance, the relief of partition is unknown to law. The plaintiff has received the advance amount under Ex.D-1. The relief of refund of his share is not survival. The very relief claimed by the plaintiff cannot be a consequential relief and not entitled. There is no declaration in respect of Ex.D-1 cancellation of sale agreement. The plaintiff suppressed Ex.D-1. The plaintiff has admitted his signature in Ex.D-1 in para No.14. Once it is admitted, no need to prove. In the cross-examination of DW.2 the plaintiff has taken up plea of forgery. The plaintiff appeared before the Notary Public puts his signature. The execution of Ex.D-1 has been proved by examining DWs.3 and 4 - Notary Public and witness.
27
OS.No. 4504/2014 16(a). The agreement is not subsisting, no relief could be granted under Sec.12(3) of Specific Relief Act. There is no defence of the plaintiff that his signatures were taken on blank paper. The suggestion by the counsel to the defendants' witness amounts to admission. The plaintiff failed to prove the plea of forgery. The admission of PW.1 admitting his signature in Ex.D-1 is not stray sentence, which is admissible in evidence unless and until admission is withdrawn or explained. Once Ex.D-1 is proved, the plaintiff cannot enforce agreement at Ex.P-14(1) as it is not subsisting contract.
16(b). The counsel further submits, Ex.P-2 suit in OS No.7675/2011 filed against defendants No.3 to 6, as on that day the plaintiff has right to seek for specific performance without seeking leave of the Court. Injunction suit was filed, subsequently it was withdrawn without the permission of the Court and subsequent suit is hit by under Order II rule 2 of 28 OS.No. 4504/2014 CPC. He relied upon the judgment ILR 2005 KAR 4862 E. Jayaram and another vs. Lakshmi alias Bhagyalakshmi and another, wherein it is observed that :
"Bare injunction suit is filed without seeking leave of the Court to reserve the right to sue for any other relief to seek specific performance of the agreement of sale and subsequent suit is hit by Order II rule 2 CPC".
16(c). The counsel submits that there is no contract for sharing the property between plaintiff and defendant No.1 under the agreement. There is no concluded contract to claim plaintiff half share. 16(d). The learned counsel submits that the plaintiff has valued the suit in respect of half share sale consideration amount and paid Court fee, it is not correct and he relied upon the judgment of 1975(2) Kar.L.J. 35 T. Gangadharaswamy v. Seth Dowlatram Mohandas and another, wherrein it is held that :
"Court fee should be paid on the basis of the entire agreement under Sec.40(a) of the Act and 29 OS.No. 4504/2014 not merely on the amount due by plaintiff to defendant for conveyance of item No.2."
Therefore, it is argued that the plaintiff has to value the suit on entire sale consideration of Rs.2,74,20,490/- and to pay the Court fee accordingly. The plaintiff has not paid any Court fee in respect of damages of Rs.30 lakhs as sought in prayer (b).
16(e). The counsel submits that the plaintiff is not ready and willing to perform his part of contract subsequent to sale agreement. PW.1 admits in his cross-examination that he prayed time with defendants No.3 to 6 to have sale deed. It shows he is not ready. The plaintiff has not furnished any documents to show his capacity or funds to pay balance sale consideration amount. The plaintiff not proved his ready and willingness. He relied upon the judgment of Hon'ble Madras High Court AIR 2001 30 OS.No. 4504/2014 Madras 127 Indravathi vs. Kamala, wherein it is held that :
" No specific pleading about ready and willingness of plaintiff to perform part of contract".
Therefore, it is argued that the plaintiff failed to prove his part of contract. PW.1 has admitted in his cross-examination that defendants have not refused to execute the sale deed.
16(f). It is submitted that suit of the plaintiff is frivolous and abuse of process of law and same has to be dismissed with imposing compensatory costs and he relied upon the judgment of Hon'ble Apex Court (2010) 4 SCC 728 Oswal Fats and Oils Limited vs. Additional Commissioner (Administration), Bareilly Division, Bareilly and others, wherein it is held that :
" Concealing material facts, Court not only has the right but a duty to deny relief to such person". 31
OS.No. 4504/2014 16(g). (2010) 8 SCC 1 Vinod Seth vs. Devinder Bajaj and another, wherein it is held that :
"Vexatious, frivolous, malicious or speculative litigation, imposition of realistic costs to discourage."
The learned counsel prayed for dismissal of the suit.
17. In view of the above said submissions of both sides, it is necessary to appreciate oral and documentary evidence on record. The admitted facts are that the plaintiff and defendant No.1 jointly entered into sale agreement at Ex.P-14(1) on 16-03- 2011 for total sale consideration of Rs.2,74,20,490/-. Admittedly, plaintiff and defendant No.1 jointly paid advance sale consideration amount of Rs.1,47,00,000/- through cheques and cash on various dates to defendants No.3 to 6. Subsequent to sale agreement, the plaintiff and defendant No.1 have filed a suit for permanent injunction at Exs.P-1 and 2 in OS No.7675/2011 against defendants No.3 32 OS.No. 4504/2014 to 6 restraining them from interfering with the plaintiff's possession and enjoyment of the suit schedule property.
17(a). Subsequently, the suit in OS 7675/2011 was withdrawn by filing Memo on 12-09-2012 at Ex.P-3. The defendants No.1 to 6 have contended that the plaintiff after execution of sale agreement in his favour and in favour of defendant No.1 he has no funds to pay the balance sale consideration amount and he wanted to withdraw from the sale agreement. Accordingly by executing Ex.D-1 - Deed of cancellation of sale agreement dated 12-08-2012 received his share amount of Rs.73,50,000/- in cash and given No Objection to defendants No.3 to 6 to execute the sale deed in favour of defendant No.1 or any other person on his direction. Accordingly, they executed sale deed in respect of suit schedule property on 13-08-2012 at Ex.P-4. The plaintiff contended that he had no knowledge about 33 OS.No. 4504/2014 withdrawal of suit in OS 7675/2011. The defendant No.1, who was prosecuting the matter had fraudulently withdrawn and created sale deed at Ex.P-4 and he never executed Ex.D-1 Cancellation of sale agreement nor received his share amount of Rs.73,50,000/- and damages of Rs.30 lakhs holding that the sale deed executed by the defendants No.3 to 6 in favour of defendants No.1 and 2 is not binding on him.
17(b). In view of the above said contentions if the defendants are able to prove that the plaintiff voluntarily has executed a valid cancellation of sale agreement, which was duly notarized, then it is for the plaintiff to disprove that it is a fraudulent and executed under duress. The Hon'ble Supreme Court in K. Shanmugham vs. P.R. Vairamuthu 2021 SCC OnLine SC 944 held that : " Burden of proving fraud or coercion is lies on the party who challenging the validity of the document."
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OS.No. 4504/2014
18. The plaintiff in his cross-examination admitted that before purchase of suit schedule property by the defendants No.1 and 2 they have not assured the plaintiff to give half share in the suit schedule property in writing. He admits, the witness to Ex.P-4 sale deed Aleem and DW.4 - Sharschandra are known to him. PW.1 admits that defendants No.3 to 6 on 19-09-2011 have given reply notice contending that they are ready to execute the sale deed and asked the plaintiff and defendant No.1 to come forward to have the registered sale deed. The plaintiff has voluntarily deposed that he himself has requested the defendants for extension of time. This would probabilise that the plaintiff was not ready and willing to perform his part of contract by virtue of Ex.P-14(1) agreement subsequently to have the registered sale deed. PW.1 admits he had no hurdle to deposit balance sale consideration amount before the Court. He admits that he has not produced any document to show that he had sufficient amount in 35 OS.No. 4504/2014 his account to pay balance sale consideration amount.
18(a). PW.1 pleads ignorance that due to execution of sale deed in favour of defendants No.1 and 2 the suit in OS 7675/2011 was withdrawn. According to him he paid amount in cash and defendant No.1 has paid through cheque under sale agreement at Ex.P- 14(1) in favour of defendants No.3 to 6. He admits as per the sale agreement within six months by paying balance sale consideration amount the sale transaction has to be completed. He admits six months time was taken to mobilize the amount and to secure the documents from the defendants. He do not remember there is any recital in the agreement that the defendants have to furnish documents within six months. In para No.10 of the cross- examination PW.1 categorically and explicitly admitted on the date of filing of Ex.P-2 suit 36 OS.No. 4504/2014 defendants No.3 to 6 did not refuse to execute the sale deed in their favour.
18(b). The averments in the plaint at Ex.P-2 that the defendants have refused to come forward to execute the sale deed is wrong. Thus, from the above said evidence it is evident that after execution of sale agreement the plaintiff himself has sought time to obtain the sale deed from the defendants. He has not produced any documents to show he had sufficient amount in his account to pay balance sale consideration amount to defendants No.3 to 6. He admits that defendants No.3 to 6 in their reply notice have stated that they have ready to execute sale deed and ask the plaintiff to come forward to have the registered sale deed, the defendants never refused to execute the sale deed.
19. The counsel for the plaintiff has relied upon judgment 2021(2) Kar.L.R. 266 (DB) M. Muniswamy 37 OS.No. 4504/2014 and others vs. GMS Construction Pvt. Ltd., wherein it is held that, " Mere fixation of time period does not by itself evidence intention to make time the essence". Though the time is not the essence of the contract in respect of immovable property, however, it has to be performed within reasonable time. Here in this case as per the admission of the plaintiff though the defendants did not refused to execute the sale deed by making wrong averments filed a suit for injunction contending that the defendants have refused to execute the sale deed. Therefore, in all probabilities the plaintiff as per his own admission that to gain time the suit has been filed at Ex.P-2 against the defendants for permanent injunction. The plaintiff has not placed any material that he had possessed sufficient fund in his account to pay balance sale consideration. Therefore, the plaintiff was not intended to have the registered sale deed and he was not ready and willing to perform his part of contract. 38
OS.No. 4504/2014 19(a). With that circumstances as per the contention of the defendants the plaintiff voluntarily approached the defendants No.3 to 6 and expressed his intention to withdraw from the contract and execute Ex.D-1. The plaintiff disputed the execution of Ex.D-1 - Cancellation of sale agreement and receipt of amount. The plaintiff in the plaint and evidence, he has not specifically denied the signatures in Ex.D-1 as forged or fabricated. In the evidence and plaint he has stated that Ex.D-1 is created. Whereas, DW.2 and DW.3 deposed that the plaintiff has executed Ex.D-1 in the presence of witnesses before the Notary Public. DW.3 - Notary public in his evidence deposed the plaintiff and defendants No.3 to 6 came to his office and executed Ex.D-1 signed in his presence and he made entry in the notary register at Ex.D-2. He identified the signature of the plaintiff in Ex.D-1 as well as Ex.D-2 notary register extract. DW.4 witness to Ex.D-1 also supported the case of defendants that the plaintiff has executed Ex.D-1, he 39 OS.No. 4504/2014 and another witness have signed cancellation agreement before the Notary public.
20. The plaintiff in his plaint there is no specific pleadings as required under Order VI rule 4 CPC. The Hon'ble Apex Court in R.K. Mohammed Ubaidullah & Ors vs Hajee C.Abdul Wahab (D) & Ors 2000 (6) SCC 402 held that, " Fraud must be specifically pleaded and proved." Here, in this case there is no specific pleadings with particulars of alleged fraud. Just merely because Ex.D-1 has been allegedly created does not satisfy Order VI rule 4 CPC in respect of fraud or misrepresentation.
21. PW.1 in his cross-examination at para 14 categorically admitted the signature at Ex.D-1(c). The learned counsel for the plaintiff contended and it is a stray sentence cannot be looked into, the entire evidence has to be considered. Whereas the defendant counsel in this regard relied upon 40 OS.No. 4504/2014 judgment ILR 1999 KAR SN No.52, wherein it is held that:
" The document is deemed to have been executed when the man who signs is aware of what he is doing."
AIR 2004 SCC 175 Narbada Devi Gupta vs. Birendra Kumar Jaiswal and another, AIR 1971 Supreme Court 2548 Dattatraya v. Ranganath Gopalrao Kawathekar (dead) by his legal representatives and others and ILR 1996 KAR 1853 Smt. S.V. Kunhima vs. B.N. Viswanath, it observed that, " No doubt true that Courts in deciding the dispute should not place reliance on a stray sentence, but it does not mean that a categorical admission made by the parties during cross-examination should not be considered to test the veracity of the evidence of the witnesses. If an admission in respect of a material fact is excluded from consideration on the ground that it is a stray admission contrary to his earlier statement in the evidence, I am considered view that the very object of cross- examination would stand defeated."
By considering the above said judgments PW.1 in his cross-examination has admitted the signature 41 OS.No. 4504/2014 in Ex.D-1. PW.1 is not illiterate, he is an educated person. The plaintiff has not explained or withdrawn the admission made in the course of cross- examination.
22. The learned counsel for the plaintiff tried to contend that by showing signature in some other document taken admission. However, there is no objections raised at the time of cross-examination nor there is any material to accept the contention. Therefore, admission of PW.1 admitting his signature in Ex.D-1 cannot be said to be stray sentence, particularly in the absence of no specific pleadings in the plaint that the signature in Ex.D-1 is forged or fabricated. In contrary, in the cross-examination of DW.2 it was suggested to the witness the plaintiff's signature in Ex.D-1 has been forged. The Court has compared the signature of plaintiff in Ex.D-1 with that of admitted signatures, it is clearly tallies with admitted signatures with disputed signatures. The 42 OS.No. 4504/2014 plaintiff has not taken any pain to get disputed signatures refer to Handwriting expert. DW.2 - Notary Public has identified the signature of PW.1 and deposed regarding notarization of Ex.D-1 in his office by the plaintiff and defendants No.3 to 6 in presence of witnesses. DW.4 witness to Ex.D-1 also identify the signatures of plaintiff and execution of Ex.D-1 before the Notary Public.
22(a). The evidence on record would probabilize the plaintiff subsequent to execution of sale agreement as he has no fund to pay the balance sale consideration amount and voluntarily approached the defendants expressing his intention to withdraw from the contract and executed Ex.D-1 in favour of defendants No.3 to 6 canceling Ex.P-14(1) sale agreement by receiving his share amount of Rs.73,50,000/-. The evidence of DW.2 is also supported with Ex.D-2 - Notary register extract, wherein the signature of the plaintiff is also forth 43 OS.No. 4504/2014 coming along with defendants No.3 to 6. If the signature of plaintiff is created and Ex.D-1 is created, nothing prevented the plaintiff to initiate action against the defendants No.3 to 6 witnesses and notary public. Having not taken such course in all probabilities it is to be observed that the plaintiff has executed Ex.D-1 by receiving his part of amount voluntarily.
22(b). The plaintiff counsel has contended that payment of Rs.73,50,000/- is not proved by the defendants. The witness in the evidence have deposed having received the amount in cash, the plaintiff has acknowledged the receipt of the amount in Ex.D-1 deed itself. No doubt, DW.1 in his cross- examination has stated, he paid the amount, whereas DW.2 deposed they have paid the amount. DW.1 is not signatory to Ex.D-1. The plaintiff has executed Ex.D-1 in favour of defendants No.3 to 6. The plaintiff as per his own admission he paid his 44 OS.No. 4504/2014 share amount of Rs.73,50,000/- by way of cash under Ex.P-14(1) sale agreement. Therefore, payment of very same amount by defendants No.3 to 6 in favour of plaintiff is not improbable. 22(c). The plaintiff counsel has relied upon the admission of DW.2 that they paid the amount in Rs.2000/- denomination currency and therefore he has contended that as on the date of Ex.D-1 Rs.2000/- currency notes were not at all in force. No doubt, in the year 2014 Rs.2000/- currency notes were not there, if by looking into the evidence of DWs.1 to 4, in totality the plaintiff has received the amount in cash. The transaction was took place in the year 2014. DW.2 has given evidence in the year 2024 regarding payment of amount in Rs.2000/- currency note dimension. DW.2 in the year 2022 was aged about 64 years. Considering all the circumstances, it cannot be said that the evidence of DW.2 is inconsistent and contrary to that of Ex.D-1. 45
OS.No. 4504/2014 In total the defendants establishes that plaintiff voluntarily withdrawn from the contract and executed Ex.D-1 by receiving his share amount of Rs.73,50,000/-. Therefore, contract at Ex.P-14(1) is not subsisting. The plaintiff failed to establish that Ex.D-1 was obtained by playing fraud and his signatures were forged. In the absence of any legal evidence on behalf of the plaintiff disproving Ex.D-1 the plaintiff case for partition, alternative relief of refund of his share amount and damages does not survive.
22(d). The circumstances on record would clearly establishes that after execution of sale agreement the plaintiff was not ready to perform his part of contract and he has no amount to pay balance sale consideration amount to gain time filed a suit at Ex.P-2, thereafter, Ex.D-1 was executed cancelling the sale agreement by receiving amount, after that defendants No.3 to 6 have executed Ex.P-4 sale deed 46 OS.No. 4504/2014 in favour of defendants No.1 and 2. After execution of said sale deed Ex.P-2 suit was withdrawn. The plaintiff has not taken any steps for unilaterally withdrawing the suit without his consent against the defendant No.1 or his counsel. Having not taken any such action, the inference is that the plaintiff had knowledge about the withdrawal of suit after execution of agreement at Ex.D-1 - sale deed. Therefore, the plaintiff is not entitled relief of partition and refund of advance amount of his share and damages in view of execution of Ex.D-1 in favour of defendants No.3 to 6. Accordingly, answered issues No.1, 2 and 4 in the Negative and issue No.3 in the Affirmative.
23. ADDITIONAL ISSUE NO.1: The defendant No.3 has contended, the suit of the plaintiff is hit by Order II rule 2 CPC. The plaintiff had filed earlier suit at Ex.P-2 for permanent injunction without seeking leave of the Court to file suit for specific performance. 47
OS.No. 4504/2014 It is further contended subsequently suit at Ex.P-2 was withdrawn without leave of the Court to file subsequent suit. The cause of action in both suits are similar. As on the date of filing of the earlier suit the plaintiff had cause of action to file a suit for specific performance, having not sought relief in earlier suit, subsequent suit for similar cause of action is not maintainable.
24. The counsel for the plaintiff contended, cause of action for earlier suit for permanent injunction, whereas subsequent suit is for partition, alternate relief for refund of advance amount, damages and for declaration. The cause of action in both suits are different, no similar one, the subsequent suit is not attracted Order II rule 2 CPC and relied upon judgment in AIR 2018 SCC 2241 Suchan Singh Sochi (D) the LRs vs. Baldev Raj Walia, wherein it is held that:
48
OS.No. 4504/2014 "Suit for permanent injunction filed by the plaintiff, withdrawn and subsequent suit for specific performance filed, both suits are founded on different cause of action and reliefs claimed are different - Bar under Order 2 rule 2 CPC not applicable."
24(a). In the present case also earlier suit in OS 7675/2011 at Ex.P-2 was filed for permanent injunction on the basis of the sale agreement at Ex.P- 14(1). As on the date of filing of earlier suit defendants No.3 to 6 have not executed Ex.P-4 sale deed in favour of defendants No.1 and 2, similarly Ex.D-1 cancellation of sale agreement was not in existence. The cause of action in the present in respect of agreement of sale dated 16-03-2011, cancellation of sale agreement dated 13-08-2012 and sale deed dated 14-04-2014 based on said cause of action the suit is filed by the plaintiff. Therefore, cause of action in both suits and reliefs are different, not similar to one and the same. Earlier suit was withdrawn and subsequent suit is filed after existence of Ex.P-4 sale deed and Ex.D-1 cancellation 49 OS.No. 4504/2014 of sale agreement. Therefore, bar under Order II rule 2 CPC is not applicable. Accordingly, answered additional issue No.1 in the Negative.
25. ADDITIONAL ISSUE NO.2: The defendants contended that suit of the plaintiff is not properly valued. The plaintiff has valued the suit in respect of half share for Rs.73,50,000/-, he ought to have valued for entire sale consideration of Rs.2,74,20,490/- and Court fee has to be paid. The plaintiff has not paid Court fee in respect of damages of Rs.30 lakhs claimed in prayer (b).
26. The learned counsel for the plaintiff submitted that suit is valued and consideration amount fee is paid in respect of relief claimed. The relief claimed is plaintiff half share and valuation of suit and payment of Court fee is correct and he relied upon judgment of Hon'ble High Court in ILR 1996 KAR 841 Nagarathna S. Murthy vs. Padma Prakash Shetty. On 50 OS.No. 4504/2014 the contrary, the defendants counsel also relied upon the judgment in T. Gangadharaswamy's case stated supra holding the suit has to be valued on the basis of the entire sale consideration amount under Sec.40(a) of Karnataka Court Fees & Suits Valuation Act. The valuation made by the plaintiff is not correct and Court fee has to be paid on entire sale consideration.
27. After considering the submissions, the plaintiff valued prayer (a) for partition and specific performance directing the defendants to execute the sale deed in respect of half share. He valued prayer
(a) under Sec.40 of KCF&SV Act in respect of half share. Sec.40(a) of the Karnataka Court Fees & Suits Valuation Act in a suit for specific performance of contract of sale, the Court fee is computed on the amount of consideration specified in the contract. The sale consideration in the agreement at Ex.P-14(1) was Rs.2,74,20,490/-. As per Sec.40(a) of the Act, 51 OS.No. 4504/2014 the Court fee is to be calculated on the entire sale consideration amount mentioned in the agreement regardless of whether relief sought pertain to entire property or only a portion of it. However, in case of Nagarathna's case it observed that, if the plaintiffs seek enforcement of only a part of agreement, and if a part of agreement has already been complied with (such as execution of sale deeds for portion of the property), the Court fee may be payable only on the consideration amount relevant to the portion of the property, for which specific performance is sought. However, in the instant case, there is no such circumstances that in respect of portion of property the sale deeds are executed. So, in the absence of such circumstances, in the present case the judgment relied by the plaintiff counsel is not applicable and it is distinctable on facts. Therefore, as per Sec.40(a) of the Act, Court fee should be based on entire sale consideration. The valuation of suit for half sale consideration amount and payment of Court 52 OS.No. 4504/2014 fee on half sale consideration amount is incorrect and insufficient and plaintiff is liable to pay Court fee on entire sale consideration amount.
28. The plaintiff prayer No.(b) apart from alternative prayer for refund of his share amount of Rs.73,50,000/- he has also sought damages of Rs.30 lakhs, for which he has not paid Court fee. Therefore, he is liable to pay Court fee for Rs.30 lakhs. Accordingly, defendants proved that the valuation of suit and payment of Court fee is incorrect and answered additional issue No.2 in the Affirmative.
29. ISSUE NO.5: In view of findings on above said issues the plaintiff failed to prove that he is always ready and willing to perform his part of contract. On the other hand, he has executed Ex.D-1 cancellation of sale agreement by receiving his share of amount. The agreement at Ex.P-14(1) is not subsisting and 53 OS.No. 4504/2014 not entitled for relief of partition, specific performance, refund of advance his share of amount, damages or declaration in respect of sale deed. The sale deed executed by the defendants No.3 to 6 in favour of defendants No.1 and 2 after execution of Ex.D-1 by the plaintiff is valid and binding on the plaintiff. The plaintiff failed to prove that he has not at all executed Ex.D-1 and it is forged and created. Accordingly, suit is liable to be dismissed with costs. Hence, I proceed to pass the following:
ORDER The suit of the plaintiff is dismissed with costs.
Draw decree accordingly.
(Dictated to the Stenographer Grade-I, transcribed and computerized by her, transcript thereof corrected and then pronounced by me in open court, on this the 9th day of January 2025) (S. NATARAJ) VI Addl.City Civil & Sessions Judge Bengaluru City.54
OS.No. 4504/2014 ANNEXURE
1. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 Abbas Khan - dt: 06-12-2018
(b) Defendants' side :
D.W.1 Mohammed Shafi Ullah - dt: 16-03-2021
D.W.2 M.N. Shobha - dt: 07-03-2022
D.W.3 Sri Chikkaboranna - dt: 21-09-2023
D.W.4 Sri S. Sharathchandra - dt: 21-09-2023
2. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Certified copy of order sheet in
O.S.No.7675/2011
Ex.P.2 Certified copy of plaint in
O.S.No.7675/2011
Ex.P.3 Certified copy of Memo in
O.S.No.7675/2011
Ex.P.4 Certified copy of sale deed dated 13-8-
2012
Ex.P.5 Legal notice dated: 14-4-2014
Ex.P.6 to Acknowledgment 4 in number
P.9
Ex.P.10 Reply notice dated: 11-4-2014
Ex.P.11 Khatha extract
Ex.P.12 & 2 Aadhaar cards
P.13
Ex.P.14 Notice dated 03-04-2014
Ex.P.14 (1) Xerox copy of sale agreement.
Ex.P.14 (1) Signatures of plaintiff and defendant No.1
(a) & (b)
Ex.P.14 Signatures of defendants No.3, 5 and 6.
(1)(c) to (e)
55
OS.No. 4504/2014
(b) Defendants' side :
Ex.D.1 Cacellation of sale agreement dt: 12-08-
2012
Ex.D.1(a) Signatures of plaintiff
to (d)
Ex.D.1(e) Signatures of defendants No.4 to 6
to (h)
Ex.D.2 Notarized copy of Notary register page
No.26.
Ex.D.2(a) Signature of DW.3 and plaintiff.
& (b) VI Addl. City Civil & Sessions Judge Bengaluru City.
56 OS.No. 4504/2014