Bangalore District Court
Sri.Azeez Sait vs Smt. Akkamma on 21 March, 2017
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
Dated this the 21st day of March 2017.
PRESENT: Smt. M.LATHA KUMARI, MA, LLM.,
XI Addl.City Civil Judge, B'lore city.
O.S.No.3050/2006
C.C.H.8
Plaintiff/s: Sri.Azeez Sait
S/o Mohammed Sait,
Aged about 48 years,
R/at,No.273/D,
Sanman Complex,
H.M.T Lay Out,
Opp.Chowdeshwari Bus Stop,
Mathikere,
Bangalore-5600054.
(By Sri.M.Rajashekar, advocate)
Vs.
Defendant/s: 1. Smt. Akkamma
W/o, M.D.Sanjeevappa
Since dead by her L.R's,
1(a). M.D.Sanjeevappa,
H/o, deceased defendantNo.1 (Akkamma)
Aged about 69 Years,
R/at, Veerammanahalli-Village,
Nagalamadike-Hobli,
Pavagada Taluk, Tumkur - District.
2 OS. No.3050/2006
1(b) Sri. M.S.Ramnjaneyalu @ Anjaneyalu
S/o Sanjeevappa
Aged about 49 Years,
R/of, Meena Nursing Home,
Near New Bus Stand,
Pavagada Town, Tumkur-District.
1.(c) Sri.M.S.Balaram
S/O Sanjeevappa
Aged about 47 years,
R/at Veerammanahalli-Village,
Nagalamadike-Hobli,
Pavagada Taluk, Tumkur - District.
1.(d) Smt. Saraswathi
W/O Hanumantharayappa
Aged about 45 years,
R/at, Palavalli-Village,
Pavagada Taluk,
Tumkur - District.
1.(e) Smt. Sujatha
W/O Gopinath
D/o Sanjeevappa
Aged about 42 years,
R/at, Veerammanahalli-Village,
Nagalamadike-Hobli,
Pavagada Taluk, Tumkur - District.
2. K.H.Anilkumar
S/o Late Katta Hanumanthappa
Aged about 64 years,
R/at, No.48, V.H.B.C.S Layout,
3rd Cross road, 3rd Main Road,
West of Chord Road,
Bangalore-5600086.
3 OS. No.3050/2006
3. Smt. Chandramma
W/O Venkataswamy
Aged about 61 years,
R/at, Palavalli-Village,
Pavagada Taluk,
Tumkur - District.
(By Sri. Chandrashekar Babu advocate for
D1(a) to (c),D2,D3)
Date of the institution of suit: 19-4-2006
Nature of the suit: Specific performance
Date of the commencement of 21-8-2009
recording of the evidence :
Date on which the judgment 21-3-2017
was pronounced :
Total duration: Year/s Month/s Day/s
10 11 02
XI Addl.City Civil Judge,
B'lore city.
JUDGMENT
This is a plaintiff's suit for specific performance of the sale agreement dt15-6-2004 seeking direction to the defendant to execute a sale deed in favour of plaintiff by 4 OS. No.3050/2006 receiving balance sale consideration of Rs.15,57,500/- and if defendant failed to execute the sale deed, this court to execute the same in respect of four items of the immovable property being dry agricultural land bearing Sy.No.25/4 measuring 5 guntas, 6.9 guntas , 4.4 guntas and 2.2 guntas situated at Chikkabettalli village, Yelahnka Hobli, Bangalore North Taluk ,hereinafter referred to as suit schedule property.
2. Brief facts of the plaintiffs case is that, the defendants are the owners by title and in actual possession of suit schedule properties offer to sell the same to the plaintiff for a sale consideration of Rs.17,57,500/-. The plaintiff being satisfied regarding the title to the suit schedule properties agreed to purchase the same for valuable sale consideration of Rs.17,57,500/- and entered into sale agreement with plaintiff on 15-6-2004. It is plaintiff's further case that, as per clause 2(b) of the sale agreement dt15-6-2004, he was suppose to pay a sum of Rs.5,00,000/- to the defendants as and when they get the suit schedule property surveyed leaving 72-73 feet facing PWD road, measuring 30 feet, secure the court clearance for registration of the said land and handover the possession of suit schedule property to the plaintiff. Only their after plaintiff was liable to pay the 5 OS. No.3050/2006 remaining amount of Rs.10,57,500/- to the defendants. When such being the case the defendants neither got the schedule properties survey as required under the agreement nor put the plaintiff in possession of the suit schedule properties nor demanded the plaintiff to pay a sum of Rs.5,00,000/- as agreed upon. Plaintiff further asserts that defendants did not come forward to perform their part of obligation even though he was ever ready and willing to perform his part of the obligation and to get the sale deed registered in his favour subject to the fulfillment of the terms of the contract by the defendants. When such being the sate of affairs the defendants instead of getting the land surveyed, fixed the boundaries and calling upon the plaintiff to pay the balance sale consideration , got issued notice dated 30-11-2014 to the plaintiff, falsely stating that they have got the land surveyed and or ready to execute the sale deed by receiving the balance sale consideration. Plaintiff has replied the said notice on 6-12-2004 informing the defendants to "ear Mark the schedule property, fixed the boundaries stone and handover the possession of the schedule property and execute the sale deed in favour of the plaintiff or his nominees by receiving the balance sale consideration." It is plaintiff's further case that, in the said reply notice dated 6-12-2014 it was also made clear to the defendants that the sale consideration was kept ready and requested the defendants to treat the reply notice 6 OS. No.3050/2006 as a notice calling upon them to perform their part of contract. In spite of the receipt of the said reply notice by defendants, they did not make any efforts to perform their part of obligation and failed to comply with the demand made their in. There after the plaintiff kept on orally requesting and demanding the defendants to complete the sale transaction, but his efforts went in vein. Having no other option, plaintiff once again issued a notice on 17-3-2006 calling upon the defendants to perform their part of the obligation under the sale agreement dated.15-6-2004 within 7 days from the date of receipt of said notice. On 27-3-2006 defendants got issued untenable reply stating that they have cancelled the agreement of sale dated 15-6-2004 and I have forfeited the advance amount paid by the plaintiff and thereby declined to execute sale deed in favour of the plaintiff. Hence, plaintiff constrained to file this suit for the reliefs mentioned supra.
3. On issuance of summons, defendant No.1 to 3appeared through their counsel and resisted the suit of the plaintiff by filing their common written statement, admitting that the suit schedule property was offered for sale to the plaintiff for a sum of Rs.17,57,500/- and a sale agreement was entered between plaintiff and defendants on 15-6-2004. defendants further submitted that as per clause No.4 of the agreement plaintiff shall complete the sale on or before three 7 OS. No.3050/2006 months from the date of agreement and time will be essence of the contract. The civil Appeal No.4590-4592/1999 which was pending before Hon'ble Supreme Court of India was finally disposed on 16-10-2004. Defendants also got the suit schedule properties officially surveyed in the presence of the plaintiff on 19-10-2004 the survey report also makes a clear mention that there is no encroachment of land bearing Sy.No.25/4 by anybody else. Plaintiff who was a party to the official survey is aware of the said fact and pleads his ignorance in this suit. These defendants having fulfilled their obligation under the agreement, caused a legal notice on 30-11-2004 calling upon the plaintiff to pay the balance sale consideration and get the land conveyed in his favour within three days form the date of receipt of notice by enclosing the copies of the Hon'ble Supreme Court order and survey report. In the said legal notice itself it was made clear that on failure of the plaintiff to comply with the said legal notice, the agreement of sale deed dt15-6-2004 stands cancelled without any further notice and that the advance sum of Rs.2,00,000/- stands forfeited as a consequence of breach on the part of plaintiff. When such being the case, plaintiff instead of complying with the demand made in the said notice caused untenable reply and once again served a notice on 17-3-2006 reiterating the contents of his reply notice dt6-12-2004. The said notice dated17-3-2006 was issued to the defendants 8 OS. No.3050/2006 after a lapse of more than one year four months after receipt of legal notice dated 30-11-2004 issued by defendants. Defendant have not committed any default under the agreement dated 15-6-2004. There is no cause of auction arises to the plaintiff to file this suit. The plaintiff was not ready and willing to perform his part of contract suit is also not maintainable on account of delay. Hence, pray for dismissal of this suit with costs.
4. During the pendency of this 1st defendant died her legal representatives accordingly brought on record.
5. Based on these respective pleadings, the following issues are framed by this court as follows:-
1. Whether the plaintiff proves that he was and is always ready and willing to perform his part of the contract?
2. Whether the plaintiff proves that the defendants have committed the breach of their obligations under the sale agreement dated 15.6.2004?
3. Whether the defendants prove that the suit agreement stood cancelled and they have forfeited the advance amount paid by the plaintiff ?9 OS. No.3050/2006
4. Whether the plaintiff is entitled for the relief of specific performance of the contract against the defendants?
5. Whether the plaintiff is entitled for the relief of permanent injunction?
6. What decree or order?
5. On behalf of plaintiff, plaintiff got examined himself as P.W.1 and got marked as many as 18 documents Ex.P.1 to P.18 and two more witnesses examined on behalf of plaintiff as P.W.2 and P.W.3. On behalf of defendants, 2nd defendant got examined himself as D.W.1 and got marked as many as 12 documents Ex.D.1 to Ex.D.12 and one more witness examined D.W.2.
6. I have carefully scrutinized entire records before me. Heard arguments.
7. My findings on the above issues are as under:-
Issue No.1: In the negative;
Issue No.2: In the negative:
Issue No.3: In the negative;
10 OS. No.3050/2006
Issue No.4: In the negative;
Issue No.5: In the negative;
Issue No.6: As per final order for the following reasons:
REASONS
8. Issue No.1and 2 : These two issues are taken up together for consideration to avoid repetition of facts and circumstances of this case.
It is the case of the plaintiff that, the defendants, who are the owners by title and in actual possession of 4 items of immovable agricultural land bearing Sy.No.25/4 at Chikkabettahalli village, Yelahanka Hobli, Bengalure North Taluk measuring 18.5 guntas , which is the subject matter of the suit, offered to sell the suit schedule property to the plaintiff for a sale consideration of Rs.17,57,500/-. The plaintiff being satisfied regarding the title to the suit schedule property agreed to purchase the suit schedule property for the said consideration and thereby entered into a sale agreement dated 15.6.2004. This version of plaintiff available in para No.3 and 4 of his original plaint establishes that plaintiff was not only 11 OS. No.3050/2006 satisfied about the defendants title in respect of suit schedule property, but also aware that, defendants being the owners are in actual possession of 18.5 guntas of land and thereby agreed to purchase the same. It is plaintiff's further case that, in the sale agreement as per Clause No.2(b), plaintiff was to pay a sum of Rs.5,00,000/- to the defendants as and when they get the suit schedule property surveyed leaving 72 to 73 ft., facing PWD road, measuring 30 ft., secure the court clearance for registration of the said land and hand over the possession of suit schedule property to the plaintiff and only thereafter plaintiff liable to pay remaining amount of Rs.10,57,500/- to the defendants. Hence, plaintiff categorically asserted that defendants neither get the suit schedule property surveyed as required under the agreement of sale nor put the plaintiff in possession of the suit schedule property and further failed to demand the plaintiff to pay a sum of Rs.5,00,000/- as agreed and not accordingly, come forward to perform their part of obligation even though plaintiff was ready and willing to perform his part of obligation and get the sale deed registered in his favour subject to the fulfillment of the terms of the contract by the defendants. With this version of plaintiff in background, now let me scan through the oral and documentary evidence relied upon by the plaintiff.
12 OS. No.3050/2006Plaintiff, who got examined himself as P.W. 1 by reiterating the entire plaint averments, got marked as many as 13 documents Ex.P.1 to P.13. Ex.P.1 is the RTC extract produced and relied upon by the plaintiff himself. Ex.P.2 is the suit document i.e., sale agreement dated 15.6.2004. Execution of this document between parties is not in dispute. The amount of sale consideration agreed between the parties is not in dispute. It is also not in dispute that vendors i.e., defendants herein are the absolute owner in actual possession and enjoyment of suit schedule property in all measuring 18.5 guntas , as per recital in this agreement Ex.P.2. Inspite of there being accordingly, no dispute with regard to defendants ownership and possession over suit schedule property, plaintiff asserted that as per Clause No.2(b), he agreed to pay Rs.5,00,000/- to the defendants when they get the said land surveyed and secure court clearance for the registration of said land and hand over possession of the schedule property to the purchaser herein. Subsequently the remaining balance of Rs.10,57,500/- shall be paid by him to the vendors on or before 3 months from the date of entering into this sale agreement. Hence, as per this clause apart from an obligation on part of defendants to get the land surveyed and secure court clearance for registration of the suit schedule property in favour of the plaintiff, a duty also casted on plaintiff to pay the balance sale consideration to the defendants herein on or 13 OS. No.3050/2006 before 3 months from the date of entering into this sale agreement i.e., on or before 15.9.2004. Admittedly on or before 15.9.2004, plaintiff has not issued any notice to the defendants herein to enquire about the alleged survey or court clearance in respect of suit schedule property. On the other hand , the defendants themselves on 13.11.2004, as per Ex.P.3, got issued notice to the plaintiff herein stating that plaintiff specifically agreed under the sale agreement dated 15.6.2004 to complete the sale transaction on or before 3 months from the date of agreement after paying the balance sale consideration. The time fixed was the essence of the contract. Under the said agreement, defendants have received Rs.2,00,000/- by way of sale consideration. Civil Appeal bearing No.4590/4592-1999 filed by Kirlosker Electrical company Employees Co-operative Housing Society in respect of land bearing Sy.No. 25/4 i.e., suit schedule survey number was dismissed by Hon'ble Supreme Court of India and hence, court dispute, which was pending in the Hon'ble Supreme Court of India was finally settled. It is also stated that defendants got the land officially surveyed by survey officials attached to the Assistant Director of Land Records. The survey officials, after said survey, have clearly mentioned that there is no encroachment of the land bearing Sy.No.25/4 by anybody else and hence requested the plaintiff, get the sale deed executed within three days after receipt of this notice by 14 OS. No.3050/2006 paying the balance sale consideration and also to be present at the office of Sub Registrar , Yelahanka with a due intimation to the defendants, failing which, agreement dated 15.6.2004 stands cancelled and becomes redundant under law without any further notice to the plaintiff and defendants shall forfeit the advance amount received under the sale agreement dated 15.6.2004at a consequence of breach on the part of plaintiff and thereafter, defendants shall not be held liable or responsible for a legal consequences. Along with this notice, as per para No.8, defendants also enclosed the Xerox copy of the notice given before surveying the land officially, survey sketch report and certified copy of orders of Hon'ble Supreme Court for reference and information to the plaintiff herein. At para No.2 of this notice, defendants also made it clear that since they have already conducted survey officially and also dispute came to be settled before Hon'ble Supreme Court of India itself, they have no statutory or other impediments to alienate or convey the suit schedule property in favour of plaintiff as per the sale agreement dated 15.6.2004 and thereby complete the formalities of the same after receiving the balance sale consideration. Hence, on 30.11.2004 itself, the defendants herein by issuing notice as per Ex.P.3, called upon the plaintiff to get the sale deed registered from them within 3 months after receipt of this notice by presenting himself at the office of Yelahanka Sub Registrar with due intimation to defendants.
15 OS. No.3050/2006Whether plaintiff has complied these terms of the notice is a point to be considered at this stage . In the cross-examination of P.W.1 at page No.11, P.W.1 admits that defendants got issued legal notice as per Ex.P.3. However, he denies that defendants also enclosed copies of survey document and orders of Supreme Court. At page No.22, P.W.1 deposes that on 5.12.2004, he went to Sub Registrar office at Yelahanka and on that day, he had balance consideration amount with him. He categorically deposes that he did not withdraw the balance consideration amount from any bank, but the said amount was kept in his house and he carried cash on 5.12.2004. P.W. 1 further admits that he had been to Sub Registrar office on that day confirming the survey of lands and also title deeds of schedule property were found to be correct. According to him, he went to Sub Registrar office on 5.12.2004 with a balance sale consideration amount, ready by way of cash in pursuance of notice issued by the defendants themselves. Whereas as requested by the defendants herein, plaintiff has not given any intimation to the defendants with regard to his presence before concerned Sub Registrar office on 5.12.2004. When such being the case, whether this version of plaintiff elicited in his cross-examination can be reliable is another point, which required to be adjudicated at this stage . In this regard, it is necessary to go through the very document, reply notice Ex.P.4 produced and relied upon by the 16 OS. No.3050/2006 plaintiff dated 6.12.2004. Hence, according to plaintiff, he waited near Sub Registrar office with a cash of Rs.15,57,500/- and ready to get the sale deed executed from the defendants. On next day morning, a reply notice was issued calling upon the defendants to earmark the schedule property, fixed the boundary stones and hand over the possession of the schedule property in the presence of witnesses and thereafter, execute the sale deed in favour of plaintiff or his nominees by receiving the balance sale consideration as per the terms of the agreement. It was further notified that plaintiff has kept entire balance consideration amount ready and he is also ready and willing to get the sale deed executed in his favour or in favour of his nominees subject to plaintiff's earmarking the boundaries and stones and furnishing all the original documents with respect to the schedule property as per the terms of the sale agreement. Nowhere in the notice, plaintiff has stated about the alleged presence on 5.12.2004 before Sub Registrar office. Further according to him, he went to the Sub Registrar office, since he was satisfied with the official survey got conducted by the plaintiff and also knowing fully well that there is no dispute pending in respect of suit schedule property. Inspite of the same, without even disclosing his alleged presence before the Sub Registrar office on 5.12.2004 and also without intimating defendants to come near Sub Registrar office to execute the 17 OS. No.3050/2006 sale deed, plaintiff got issued legal notice. Even in this legal notice, again plaintiff started the same old story of not only survey, but an improvement version stating that defendants shall earmark schedule property, fix the boundary stones pertaining to suit schedule property, hand over the possession in presence of witnesses. Whether earmarking the schedule property and fixing the boundary stones is a condition precedent to get the sale deed executed in pursuance of agreement Ex.P.2 is to be looked into at this stage . As I have already stated as per Clause No.2(b), it was only agreed that defendants shall get the land surveyed and clear the court case pending in respect of suit schedule property. Inspite of the same, inspite of plaintiff knowing fully well that, defendants are in actual possession of suit schedule property measuring 18.5 guntas and they are the absolute owners having good title in respect of suit property insisted for survey in land in Ex.P.2 and at the time of Ex.P.4, dated 6.12.2004, which is beyond the period of 3 months agreed between the parties i.e., almost 6 months from the date of Ex.P.2, plaintiff not only insisted for survey the land, but also to fix the boundary stones and earmark the schedule property. This version of plaintiff forthcoming in Ex.P.4 establishes that plaintiff was not at all ready to perform his part of contract and unnecessarily bringing alleged survey into picture, though there is no such necessary and that apart, inspite of defendants got surveyed 18 OS. No.3050/2006 their lands through official surveyor. In this regard, the defendants got examined the said surveyor as D.W.2 before this court and got marked two vital documents Ex.D.6 and Ex.D.7 through him so also Ex.D.9(a) is signature on Ex.D.9. In his cross-examination, it is suggested that these documents are created by defendants colluding with D.W.2. This suggestion made by plaintiff to the defendants herein not only vague, but also baseless. It is the contention of plaintiff that under Right to Information Act, they approached concerned authorities and they have given endorsement stating that no such survey has been conducted in respect of suit schedule property. In Ex.P.3 itself, defendants made it clear that survey was conducted by concerned Assistant Director of Land Records. Whereas as per Ex.D.1, plaintiff has sought information, not from the office of ADLR, but office of Tahasildar, Yelahanka as per Ex.D.1, even as per Ex.D.3. Though in this application, designation and address of the Public Information Officer from whom, information is required is shown as ADLR. K.R. Circle, Bengaluru, this application was given by plaintiff not to the ADLR office, K.R.Circle, Bengaluru but again to the Tahasildar, Bengaluru on 1.7.2010. Hence, the seal and signature of Tahasildar, Bengalure North Taluk, forthcoming on Ex.D.3, which came to be confronted in the cross-examination of P.W.1 and it is a document produced by P.W.1 himself establishes that no such 19 OS. No.3050/2006 application came to be given seeking information about any survey conducted between 15.6.2004 to 15.6.2010 to ADLR office, K.R Circle, but to the Tahasildar. D.W.2 categorically deposed in his cross-examination that, Assistant Director of Land Records and Tahasildar office are two separate entities discharging their duties independently. It is also suggested that ADLR office came to be merged with Tahasildar Office. Again such issue was clarified by official witness D.W.2 stating that same was merged somewhere subsequent to the year 2005. In his cross-examination it is also elicited that, at the time of survey, there existed one point stone at one side and he has fixed remaining three points also fix three stones after necessary survey, which was destroyed earlier. Hence, D.W.2 an expert from Survey Department made it clear that defendants got conducted survey as per Ex.D.6 and Ex.D.7 and Ex.D.9. It is the case of the plaintiff that, these documents are created by the defendants. Admittedly defendants are the absolute owners in actual possession of suit schedule property. They were ready to execute the sale deed by receiving balance sale consideration amount in favour of plaintiff herein. When such being the case, there was no necessary for the defendants to create these documents as if same is issued by ADLR office, Bengaluru. That apart, defendants herein are common people. It is not the case of the plaintiff that, defendants are very influential people in the locality, both economically and 20 OS. No.3050/2006 politically. Inspite of the same, this doubt on part of plaintiff came to be cleared by his own witness P.W.2, who was identified the signature of the plaintiff on Ex.P.7. Same is marked as Ex.D.7(a). It is the case of the defendants that survey was conducted in presence of plaintiff with prior notice to bajudar. Plaintiff's own witness P.W. 2 identifies the signatures of plaintiff in such notice as per Ex.D.7(a). Ex.D.6 is the notice issued to one Abdul Rehaman, Allabakash, son of Babujan, Krishnappa, Hanif Sab, Ajij i.e., plaintiff herein. Plaintiff in his cross-examination admits that he was present at suit schedule property on the date fixed for said survey i.e., on 19.10.2004. He further admits that said Hanif, Babujon and others are bajudars of said land. However, P.W.1 deposes that on that day, no survey has been conducted. This version of plaintiff and also his presence near suit schedule property on 19.10.2004 establishes that service of notice from D.W.2 informing about necessary survey. Inspite of the same, P.W.1 asserts that no such survey has been conducted as per Ex.D.7 or Ex.D.9 and also asserts that copy of these reports and documents for having cleared court cases has not been sent to him along with Ex.P.3, though he admits receipt of these documents in his reply notice Ex.P.4. It is not in dispute that the provision of Sec.16(c) of Specific Relief Act are mandatory in nature. Whether defendants contest the case or not, whether defendants cross examine plaintiff or his witness or not, 21 OS. No.3050/2006 plaintiff has to establish readiness and willingness to perform his part of contract . The term "Readiness" refers to financial capacity of the plaintiff and the term "Willingness" is the mental attitude and conduct of the plaintiff to perform his part of contract and thereby get the sale deed executed . P.W.1 categorically asserted before this court that all along he was ready and willing to purchase suit schedule property and kept ready the balance sale consideration. In support of this contention, P.W.1 got marked his Vijaya Bank passbook as per Ex.P.14 and his statement of accounts pertaining to Co- operative Bank as per Ex.P.15. Ex.P.14 from 5.5.2004 to 15.7.2005. According to detail statement issued by Vijaya Bank, plaintiff opened his account at Vijaya Bank only on 5.5.2004. Ex.P.15 is plaintiff's statement of accounts issued by Sri.Sudha Co-operative Bank ltd., from 5.5.2004 to 31.3.2006. As per these two documents, plaintiff was not having balance sale consideration of Rs.15,57,500/- as on 15.9.2004. According to Ex.P.4, as on 1.10.2004, the amount available with plaintiff was only Rs.8,52,615/-. Further as on 20.9.2004, there was only Rs.14,358/- available with plaintiff according to Ex.P.14. These are the only two documents produced by the plaintiff to establish his readiness to perform his part of contract. Mere stepping into the witness box and saying on oath that, plaintiff is ready with the balance sale consideration or that he kept amount ready, by itself will not establish case 22 OS. No.3050/2006 of plaintiff, without that oral evidence being supported by documentary evidence. The plaintiff has to prove to the satisfaction of the court that, he possess the requisite funds. Such evidence shall be by way of only documentary evidence. Admittedly, plaintiff has produced two bank statements as per Ex.P.14 and P.15 maintained by him to establish his financial capacity. These two documents clearly establishes that either on the date of Ex.P.1 or at the relevant point of time , plaintiff was not having requisite funds with him to perform his part of contract. In the cross-examination of P.W.1, he has categorically stated that on 5.12.2004, he waited near Yelahanka Sub Registrar office for the 1st defendant by keeping the balance sale consideration by way of cash ready with him. According to him, he has not withdrawn said amount from the bank, the balance sale consideration amount is admittedly Rs.15,57,500/-, which is a huge amount. As per his bank statement as on 5.12.2004, plaintiff was having only Rs.6,52,615/- in his bank account under Ex.P.14 and only Rs.21,815/- in his Co-operative Bank as per Ex.P.15. When such being the case, the version of P.W.1 available in page No.22 of his cross-examination is not at all supported by documentary evidence, unless plaintiff produced such documentary evidence, which would enable this court to come to the conclusion that plaintiff is ready with the requisite balance sale consideration to complete the sale transaction, it 23 OS. No.3050/2006 is a case of plaintiff's case being not proved. Hence, the version of P.W.1 in this regard is nothing but a false statement. His own documents Ex.P.14 and p.15 establishes that on 5.12.2004, plaintiff was not having sufficient balance sale consideration amount available with him apart from expenses towards necessary stamp duty etc., Under such circumstances, the notice Ex.P.4 issued by plaintiff on 6.12.2004 stating that he has kept the entire balance sale consideration amount of Rs.15,57,500/- ready is again not supported by his own documents Ex.P.14 and P.15. This version of plaintiff available in para No.5 of his notice is also a fake statement made by the plaintiff just to block the property in question. That apart under Ex.P.1, plaintiff only wanted to survey the land. It was not the case of plaintiff that he suspect the total measurement of the suit schedule property or plaintiff's possession over the same. Whereas in Ex.P.1 and also very 1st portion of the plaint, there is a clear recital to the effect that, plaintiff is the absolute owner in actual possession of suit schedule property measuring 18.5 ft., in all. When such being the case, the proposed survey referred in Clause No.2(b) of Ex.P.1, was not at all necessary. Under Ex.P.1, plaintiff wanted defendants to furnish all the relevant document and also conduct necessary survey apart from court clearance pertaining to suit property. Defendants have produced Ex.D7 to D.9 to establish that survey was conducted well in time and also matter came 24 OS. No.3050/2006 to be cleared before Hon'ble Supreme Court itself. Since plaintiff was very much aware of the actual possession of defendants in respect of suit schedule property and plaintiff purchased suit schedule property with specific boundaries. There was no necessary for incorporating any recital in Ex.P.1 to conduct the survey. Even otherwise, defendants got conducted survey as per Ex.D.6, 7 and 9 clear the court case. Issued the notice to the plaintiff herein as per Ex.P.3 calling upon the plaintiff to purchase the suit schedule property by enclosing Xerox copies of survey documents and also Ex.D.8. Whereas plaintiff instead of complying the said notice, since he was all along ready and willing to purchase the suit property got issued Ex.P.4 asking the defendants to fix up the boundaries. This version of plaintiff in Ex.P.4 establishes that he was not at all having any enthusiasm or eagerness to perform his part of contract nor he was having sufficient balance sale consideration amount with him on that day. The document Ex.P.14 and P.15 produced and relied upon by the plaintiff clearly shows that either on the date of agreement of sale or on expiry of 3 months from the date of agreement of sale or on the date of Ex.P.4, or even subsequently, he was not ready with balance sale consideration. This itself establishes his unwillingness to perform his part of contract and thereby took the stand in Ex.P.4 asking the defendant not only to survey land, but to fix up the boundaries with necessary 25 OS. No.3050/2006 boundary stones, earmark the suit schedule property etc., As I have already stated Sec.16© of Specific Relief Act casts mandatory duty on plaintiff to plead and prove that he had performed or has always ready and willing to perform his terms of contract under Ex.P.1, which are required to be perform by him. The continuous readiness and willingness on part of plaintiff is a condition precedent to consider the claim of plaintiff for the relief of specific performance. Therefore, it is obligatory on the part of court that in every suit for specific performance irrespective of the fact, whether the defendants have specifically denied the allegations in the plaint regarding readiness and willingness to perform or not the contract by the plaintiff, it is obligatory on plaintiff, who approaches the court seeking a decree for specific performance not only to aver, but also to prove that, he has performed or is always ready and willing to perform the essential term of the contract, which are to be performed by him. Plaintiff can establish his readiness again only by way of documentary evidence. His own documents Ex.P.14 and P.15 establishes that he was not having sufficient funds either at the time of Ex.P.1 or as on 5.12.2004. When such being the case, question of plaintiff waiting for defendants near Yelahanka Sub Registrar office by keeping the balance sale consideration amount ready does not arise. Inspite of issuance of notice by defendants, as per Ex.P.3 calling upon the plaintiff to get the sale deed executed 26 OS. No.3050/2006 within three days after receipt of notice, plaintiff instead of complying the term of contract got issued reply notice on 6.12.2004 again calling upon the plaintiff to fix boundary stone. Ex.P.7 is the demand notice issued by plaintiff on 17.3.2006 i.e., almost after 16 months from the date of Ex.P.4 calling upon the defendants to execute the sale deed. Even in this notice, plaintiff called upon the defendants to earmark the notice schedule property, fix boundary stones keep all the original documents ready and call the plaintiff to inspect the same and thereafter, upon plaintiff being satisfied with the title to the schedule property execute the sale deed in his favour. Hence, by virtue of this demand notice Ex.P.7 apart from fixing the boundaries etc., plaintiff wants to satisfy himself with regard to the title to the suit schedule property and then he will think of getting the sale deed executed from the defendants. Whereas the title is not at all in dispute and plaintiff himself admitted in very para No.3 of his plaint that, defendants are the owners by title and in actual possession of suit schedule properties in all measuring to 18.5 ft., Inspite of such a stand available in plaint, plaintiff's version in demand notice Ex.P.7 to satisfy himself with regard to title after going through the original documents establishes not only unwillingness on the part of the plaintiff to perform his terms of contract, but also his financial incapability to get the documents executed from the defendants. The defendants 27 OS. No.3050/2006 herein have not sold the property for the purpose of their whims and fancies, in Ex.P.1 itself, there is a clear recital at page No.3 to the effect that they are in need of funds to meet their legal necessities and thereby decided to dispose off the suit schedule property. P.W.1 admits that the time fixed in Ex.P.1 was 3 months. The age of defendants No.1 and 2 as per Ex.P.2 is more than 60 years. During the pendency of the suit, 1st defendant died and her L.Rs accordingly, brought on record as on the date of Ex.P.2 itself, 1st defendant was aged about 65 years. When such being the case, the contention taken by plaintiff with regard to fixing up of boundary, though he purchased the suit property from the defendants knowing fully well that they are in actual possession of suit schedule property with an absolute ownership and also the non availability of requisite funds with plaintiff either on the date of Ex.P.1 or within the time of three months stipulated or subsequently . As per his own documents Ex.P.14 and P.15 establishes that plaintiff was not at all ready and willing to perform his part of contract and that apart plaintiff not at all took any initiate to get the sale deed executed from the defendant herein. Even if defendants themselves issued the notice along with necessary documents as per Ex.P.3, the plaintiff instead of getting the sale deed executed from the defendants, again sought for conduct survey, fixed the boundaries, which is not at all agreed under Ex.P.1. This 28 OS. No.3050/2006 attitude on part of plaintiff establishes his unwillingness to perform his part of contract. That apart though, plaintiff asserted that his father was an agriculturist and he was also owning some land at Arasikere, he has not produced any documents to show that he is a son of agriculturist and having agricultural properties in his name or he possessed the some agricultural property in his name. In his cross-examination, P.W.1 at page No.8 deposes that at beginning, he was running cloth business and later, he started doing mobile telephone business. In the absence of documents on part of plaintiff to show that, he possess agricultural land, he is also prevented from purchasing suit schedule property under law. All these circumstances establishes that, plaintiff was never ready to perform his part of contract right from the date of Ex.P.1 i.e., how the recital Ex.P.2(b) came to be recited in Ex.P.1, though plaintiff was very much aware about the defendants actual possession and their ownership about the suit schedule property and also plaintiff purchased suit schedule property with specific boundaries. Accordingly, this court opines that plaintiff failed to establish with sufficient oral and documentary evidence, his readiness and willingness to perform his part of contract under Ex.P.1 and also failed to establish any breach on part of defendants under Ex.P.1. Accordingly, I have answered Issue No.1 and 2 in the negative.
29 OS. No.3050/20069. Issue No.3: In Ex.P.1, there is a clear recital at page No.7, to the effect that in the event of any breach on the part of purchaser i.e., the plaintiff herein, defendants being the vendors shall forfeit the entire advance amount paid by the plaintiff as liquidated damages. This recital is as per Clause No.8(b) of Ex.P.1. It is not the case of the defendants that they did not take any action during the existence of sale agreement. Admittedly they have issued notice as per Ex.P.3 on 30.11.2004 calling upon the plaintiffs to get the sale deed executed within three days from the receipt of this notice. Even in this notice, at page No.3, defendants categorically stated that in case of any failure on part of plaintiff to get the sale deed executed by paying the balance sale consideration, they are going to forfeit the advance sale consideration amount. Defendants repudiated the contract, considering the unwillingness on part of plaintiffs. Plaintiff made the defendants to enter into contract as per Ex.P.1, agreed to purchase the suit schedule property within three months by paying the balance sale consideration after defendants getting the survey done and also necessary court clearance. Inspite of said survey and clearance of court cases before Hon'ble Supreme Court as per Ex.D.6 to Ex.D.9, purchaser did not come forward to get the sale deed executed . On the other hand , he again asked the defendants to conduct survey stating that the documents enclosed by defendants along with 30 OS. No.3050/2006 Ex.P.3 are all created documents, which does not bear any date, when such notice issued, when which was the survey conduct etc., and requested the defendants to get the survey done once again. After issuance of such reply, plaintiff not at all taken any action against defendants all along for 14 months and got issued demand notice as per Ex.P.7 only on 17.3.2006 and later made the defendants to frustrate before this court all along for 11 years for their no fault. Though there was no necessity to get the survey done, plaintiff insisted to survey the land as per Clause No.2(b) of the agreement Ex.P.1. If Clause No.2(b) is binding on the defendants, it is probable that, Clause No.8(b) is also binding on the defendants, under which, defendants are required to forfeit the advance amount, considering the failure on the part of plaintiff to perform his part of contract under Ex.P.1 and also this is plaintiff's suit for the discretionary relief of specific performance and plaintiff has not sought for any alternative relief of refund of advance amount. Even other wise, contract came to be repudiated on account of plaintiff. During the pendency of the suit, one of the defendants died. Other defendants all along meddling before this court since from the year 2006. 2nd defendant, who got examined himself as D.W.1 categorically deposed that necessary survey came to be conducted and all documents were kept in tact. Inspite of the same, plaintiff did not come forward to get the sale deed 31 OS. No.3050/2006 executed . D.W.1 also deposed on oath that, he issued notice as per Ex.P.3 by enclosing the copies of Hon'ble Supreme Court order, survey notice and survey sketch. Though P.W.1 denied the receipt of any such notice. In his reply notice Ex.P.14, there is a clear recital to the effect that annexure sent along with the notice under reply was placed in the hands of concerned advocates. In Ex.P.4 at para No.3, they have also discussed about notice issued by concerned surveyor, survey sketch etc., All these circumstances establishes that plaintiff neither approached the court with clean hands nor with clean heart and brain. The suit is based on sale agreement Ex.P.1. Plaintiff and defendants entered into sale agreement having agreed with the terms and conditions of the contract. It is not in dispute that there exist default clause at Clause No.8 stating about the circumstances in case breach of either of the parties. The defendants by examining D.W.1 and one witness the concerned surveyor himself as D.W. 2 established before this court , there is absolutely no breach on their part by taking action by issuing notice under Ex.P.3 made known to the plaintiff that they are going to forfeit the amount, if plaintiff not get the sale deed executed by paying the balance sale consideration. Considering these facts and circumstances available in the record, I have answered Issue No.3 in negative.
32 OS. No.3050/200610. Issue No.4: In a case arising under Sec. 16(c) of Specific Relief Act the obligation is casted on the plaintiff to prove that, he was ready with the balance sale consideration and willing to perform his part of contract. Whereas plaintiff failed to establish possession of requisite funds with him at the relevant point of time under Ex.P.14 and Ex.P.15 produced and relied upon by him. Either on the date of Ex.P.1 or on the date of time fixed to pay the balance sale consideration i.e., 3 months from the date of Ex.P.1 or on the date of Ex.P.4, plaintiff was not having balance sale consideration of Rs.15,57,500/- with him. Money does not exist in vacuum. Money has to be necessarily in the form of physical object. It is in the nature of documents. Money is deposited in bank. Though P.W.1 asserted that he went to Sub Registrar office on 5.12.2004 with cash of Rs.15,57,500/-. Absolutely he has produced any documents to show possession of said amount with him on 5.12.2004. Therefore, mere stepping into the witness box and saying on oath that he was always ready with the balance sale consideration or he was all along ready and willing to perform his part of the contract by itself is not sufficient and such oral evidence shall be supported by documentary evidence. If such oral evidence is not supported by documentary evidence, it is as good as a case of plaintiff's case being not proved. Under such circumstances, plaintiff cannot expect the court to pass a decree for specific 33 OS. No.3050/2006 performance of contract of sale. When plaintiff himself has not only proved readiness to perform his part of contract, but also his willingness to get the sale deed executed from the defendants in respect of suit schedule property. Seen from any angle, plaintiff not at all entitled for the relief of specific performance of contract without earmarked the amount for the purchase of the suit schedule property, plaintiff entered into sale agreement with the defendants, who were in need of funds on 15.6.2004 and made the defendants to frustrate before this court all along for a period of 13 years, which also disentitles the plaintiff for refund of the advance amount. Accordingly, I have answered this issue in the negative.
11. Issue No.5: Since plaintiff is not at all entitled for the main relief of specific performance, in respect of suit schedule property, nor established his readiness and willingness to perform his part of contract is not entitled for the consequential relief of permanent injunction. Accordingly, I have answered issue No.5 in the negative.
12. Issue No.6: in view of my finding on Issue No.1 to 5, I proceed to pass the following:-
34 OS. No.3050/2006ORDER Suit dismissed with costs.
Draw decree accordingly.
{Dictated to the Judgment Writer transcribed by her, corrected and then pronounced by me in open court this 21st day of March 2017} (M.LATHA KUMARI) XI ADDL.CITY CIVIL JUDGE BANGALORE CITY.
ANNEXUERE List of witnesses examined for plaintiff:-
P.W.1 Sri. Aziz Sait
P.W.2: Sri.Alla Bakash
P.W.3: Sri.Nissar Ahmed
List of documents exhibited for plaintiff:-
Ex.P.1 RTC
Ex.P.2: Agreement of sale dated 15.6.2004
Ex.P.3: Legal notice dated 30.11.2004
35 OS. No.3050/2006
Ex.P.4: Reply notice dated 6.l2.2004
Ex.P.5 & 6: Postal acknowledgments
Ex.P.7: Copy of 2nd notice dated 17.3.2006
Ex.P.8: Reply notice by defendants dated
27.3.2006
Ex.P.9 to 12: Photos in respect of suit schedule property P.9(a) to Negatives of Ex.P.9 to P.12 P.12(a):
Ex.P.13: Mutation register extract in respect of suit schedule property.
Ex.P.14: Statement of accounts of Vijaya Bank in respect of plaintiff's account. Ex.P.15: Statement of account of plaintiff of Sri. Sudha Co-operative Bank.
Ex.P.16: Endorsement dated 30.6.2010before RTI Act Ex.P.18: Endorsement dated 22.7.2010 before RTI Act.
List of witnesses examined for defendant:
D.W.1 Sri.K.H.Anil Kumar D.W.2: Sri. D.Venkatesh 36 OS. No.3050/2006 List of documents exhibited for plaintiff:- Ex.D.1 Certified copy of Form No.1 Ex.D.2: Certified copy of postal order Ex.D.3: Certified copy of Form No.A Ex.D.4: Copy of postal order Ex.D.5: Certified copy of mutation in MR No.4/04-05 Ex.D.6: Certified copy of notice Ex.D.7: Certified copy of spot mahazar Ex.D.8: Certified copy of order in Civil Appeal No.4590-4592/1999 Ex.D.9: Survey sketch Ex.D.10: Certified copy of deposition in C.C No.6838/2009 Ex.D.11: Certified copy of judgment in O.S. No.5077/2005 Ex.D.12 Certified copy of judgment in O.S. No.15886/2006 XI ADDL.CITY CIVIL JUDGE, BENGALURU 37 OS. No.3050/2006 38 OS. No.3050/2006