Bangalore District Court
Sri.M.S.Karthikeyan vs D.Venkateshan on 29 August, 2020
O.S.No.1236/2014.
IN THE COURT OF THE XXX ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH.31)
DATED THIS THE 29 th DAY OF AUGUST 2020
PRESENT:
SRI. MAANU K.S., B.Sc., LLB.
XXX Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.NO.1236/2014
PLAINTIFF/S : Sri.M.S.Karthikeyan,
S/o Late M.Sadashivam,
Aged about 42 years,
R/a No.5/258, Alagu Nagar,
Seelanaikanpatty,
Salem-636 201.
(By Pleader Sri. G.Balakrishna
Shastry,Adv.)
/VS/
DEFENDANT/S: D.Venkateshan,
S/o Late Duraiswamy,
Aged about 55 years,
R/a No.29, 5th Cross,
Sriramapuram,
Bengaluru-560 021.
(By Pleader Sri. S.Y., Adv.)
DATE OF INSTITUTION : 13-02-2014
NATURE OF THE SUIT (Suit on : Suit for Specific
Pronote, Suit for declaration and Performance of
Possession, Suit for injunction, etc.) Contract.
DATE OF THE COMMENCEMENT
OF RECORDING OF THE EVIDENCE : 05-08-2014
O.S.No.1236/2014.
DATE ON WHICH THE JUDGEMENT
WAS PRONOUNCED : 29-08-2020
TOTAL DURATION YEAR/S MONTH/S DAY/S
06 06 16
(MAANU K.S.),
XXX ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
O.S.No.1236/2014.
JUDGEMENT
1. The plaintiff has filed this suit seeking for grant of a decree of specific performance directing the defendant to execute a registered sale deed in respect of the schedule property in his favour by receiving the balance sale consideration amount of Rs. 37,00,000/- and put him in possession of the same, alternatively directing the defendant to refund the advance sale consideration amount of Rs. 31,00,000/- paid by him with interest at the rate of 15% p.a. from the respective dates of payments along with costs of the proceedings.
2. The brief facts of the plaintiff's case are as under:
(a). It is the case of the plaintiff that the defendant represented to him that he is the owner of the property bearing No.29, 5th Cross Road, Sriramapuram, Bengaluru and has applied for a sanctioned plan to put up a construction consisting of a stilt, ground, 1st, 2nd and 3rd floor apartment in the said property and offered to sell the 1 st floor flat in his favour for which, he agreed to purchase the same and accordingly, a sale agreement dtd.29-08-2010 came to be executed between himself and the defendant, where under, the defendant agreed to sell the suit schedule property for a total sale consideration of Rs.
68,00,000/- and received a sum of Rs. 5,00,000/- on O.S.No.1236/2014.
the date of sale agreement and later he has received a sum of Rs. 26,00,000/- on various dates through RTGS and thus, he had received a total sum of Rs. 31,00,000/- towards the sale consideration. The defendant had agreed to construct the apartment and to execute the sale deed in his favour on or before 31- 01-2011 and to handover the possession of the same on the date of registration of sale deed, but the defendant delayed the construction and failed to complete the same before 31-01-2011 as agreed and completed the same by the end of December 2011. That the defendant had also agreed to get the individual khatha in respect of individual flats transferred in his name and pay the property tax to BBMP and thereafter will inform the same to him in writing and on receipt of the letter of transfer of khatha, he was required to get the sale deed executed after incurring necessary expenses.
(b). He further contended that as he has been permanently residing at Alagunagar, Salem, far away from Bengaluru, the defendant took advantage of the same and failed to inform him about the transfer of katha in his favour, but went on delaying the same by giving one or the other excuses like failure to complete the 2nd floor, alleged objections from the BBMP regarding nature of construction, failure to issue completion certificate, etc. and he believed the said O.S.No.1236/2014.
excuses pleaded by the defendant and went on paying the money from time to time, totally amounting to a sum of Rs. 31,00,000/-. That earlier he used to work in CISCO System, USA as a Technical Architect and later moved to Sipera Systems as a Director of Engineering and as such being a businessman having resources and financial capacity to pay the balance sale consideration was always ready and willing to perform his part of contract and is even now ready to pay the balance sale consideration and get the sale deed registered in his favour. Since the defendant prolonged the matter, he got issued a legal notice dtd.01-06-2013 calling upon the defendant to receive the balance sale consideration amount of Rs. 37,00,000/- and to execute the sale deed and to deliver possession of the suit schedule property. In spite of service of the said legal notice on 05-06-2013, the defendant failed to execute the sale deed, but orally assured him to execute the same and thereafter, failed to keep his words into action, which necessitated him to file this suit.
(c). He further contended that the time is not the essence of contract even though, a period for execution of sale deed was fixed to be on or before 31- 01-2011 and since the defendant could not complete the construction and other formalities as stated supra, the suit filed by him is well within limitation and O.S.No.1236/2014.
within the jurisdiction of this Court and therefore, with these averments, he prayed to decree the suit with costs.
3. After service of suit summons, the defendant appeared and filed his written statement, the brief facts of which are as follows:
(a). The defendant while admitting the execution of the sale agreement dtd.29-08-2010 for a total sale consideration of Rs. 68,00,000/-, denied the receipt of Rs. 31,00,000/- from the plaintiff as contended by him and contended that he has received only a sum of Rs. 26,00,000/-. While admitting that he had agreed to complete the construction and execute the sale deed on or before 31-01-2011, he denied the further allegations that he could not complete the construction within the said period and further contended that he had constructed the apartment within the time stipulated in the agreement and was ready and willing to execute the sale deed, but the plaintiff never came forward to comply with his part of the obligation as mentioned in the sale agreement.
While denying the averments made in para-6 and 7 of the plaint as false and in correct, he contended that even though there is a clause in the sale agreement that he will get the katha transferred in respect of the suit schedule property separately, the same was not within his knowledge and further contended that O.S.No.1236/2014.
without transfer of the property through a sale deed, a separate khatha cannot be issued and as such, merely the said clause is mentioned in the agreement of sale, the same cannot be legally enforced. While further denying the averments made in para-8 of the plaint regarding readiness and willingness of plaintiff, he contended that plaintiff himself failed to make payment according to the sale agreement payment schedule and he was not in a position to make the balance payment and to get the sale deed registered in his name, even though he was ready and willing to execute the sale deed after receipt of balance sale consideration and as such, plaintiff himself came forward in the year 2011 to cancel the sale agreement dtd. dtd.29-08-2010 and has received the entire advance sale consideration amount paid by him and he has repaid a sum of Rs. 21 lakhs by way of cash/NEFT to the account of plaintiff's brother and has also paid a further sum of Rs. 5 lakhs by way of cheque bearing No.106416 dtd.12-01-2013 drawn on M/s. Deepak Sahakari Bank, Srirampuram, Bengaluru totally amounting to a sum of Rs. 26 lakhs and despite he returning the entire sale consideration, the plaintiff has not returned the original sale agreement to him at the time of receiving back the entire advance sale consideration by representing that the same has been misplaced and the same would be returned as and when it is found, but later, the O.S.No.1236/2014.
plaintiff in order to make unlawful gain has come up with this false and frivolous suit.
(b). He further contended that he is residing in the suit schedule property and the plaintiff has caused loss to him due to which he was forced to avail hand loans from relatives and friends and also from Bank of India and as such, the question of he executing the sale deed in favour of plaintiff does not arise as the time was the essence of contract. He further contended that the suit is filed at a belated stage and that there is no cause of action for the plaintiff to file this suit as the plaintiff has already canceled the said sale agreement by receiving back the entire sale consideration amount and as such, the plaintiff is not entitled for any relief including the alternative relief from the hands of this Court and therefore, prayed to dismiss the suit with exemplary costs.
4. On the basis of the rival contentions taken up by the respective parties, the following issues have been framed by my Learned Predecessor in office for disposal of the case:
ISSUES
1. Whether plaintiff proves that defendant agreed to sell the suit property for Rs.68,00,000/- on 29/08/2010 and on receiving advance amount of O.S.No.1236/2014.
Rs.5,00,000/- executed the agreement of sale, agreeing to execute the sale on or before 31/1/2011?
2. Whether he further proves that he has paid Rs.26,00,000/- to the defendant through RTGS out of the balance amount ?
3. Whether he further proves that he was and is ready and willing to perform his part of contract?
4. Whether he further proves that defendant failed to execute the sale deed inspite of request and demands and issuance of notice 01/06/2013?
5. Whether court fee paid is sufficient?
6. What order or decree?
5. In support of the case of the plaintiff, he has examined himself as P.W.1 and got marked 9 documents as Ex.P.1 to P.9 and closed his side evidence. To prove his defence, the defendant has examined himself as D.W.1 and got marked 5 documents as Ex.D.1 to D.5 and closed his side evidence.
6. Heard the arguments of both the counsels for the plaintiff and the defendant. Both the counsels for the plaintiff and defendant have also filed their written synopsis along with decisions. Perused the records, the written arguments and the decisions submitted by the both the counsels.
O.S.No.1236/2014.
7. On the basis of the both oral and documentary evidence and other materials, I record my findings to the above issues as follows:
Issue No.1: Partly in the affirmative. Issue No.2: In the affirmative.
Issue No.3: In the negative.
Issue No.4: In the negative.
Issue No.5: In the affirmative.
Issue No.6: As per the final order for the following:
REASONS
8. ISSUES NO.1 & 2:- Since these two issues are interconnected with each other, to avoid repetition of averments and appreciation of evidence, these two issues are taken up together for discussion.
9. It is an admitted fact that the defendant is the owner of the property bearing No.29, situated at 5th Cross Road, Srirampuram, Bengaluru as per Ex.P. 5 katha extract and that he had undertaken the task of construction of an apartment complex consisting of stilt, ground, first, second and third floors in the said property. It is also an admitted fact that the plaintiff and defendant had entered into a sale agreement dtd.29-08-2010 as per Ex.P.1 where under the defendant had agreed to execute the sale deed in respect of the flat constructed in the 1st floor of the said apartment complex morefully described as suit O.S.No.1236/2014.
schedule property in favour of the plaintiff for a total sale consideration of Rs. 68 lakhs and that the defendant had agreed to execute the sale deed on or before 31-01-2011. The payment of a sum of Rs. 26 lakhs by the plaintiff to the defendant on various dates as shown in Ex.P. 2 through RTGS is also not in dispute.
10. The only dispute between the plaintiff and the defendant is regarding the payment of advance sale consideration of Rs. 5 lakhs alleged to be paid by the plaintiff on the date of agreement of sale. According to the plaintiff, on the date of agreement of sale, he has paid the said sum of Rs. 5 lakhs before the witnesses by way of cash and the defendant by acknowledging the receipt of the said advance sale consideration as shown in Ex.P. 1 sale agreement and agreeing to receive the balance payment as per the payment schedule mentioned in Annexure-2 and after going through the contents of Ex.P. 1, has affixed his signature before him, his brother and son of defendant and since the defendant requested to make payment of another sum of Rs. 5 lakhs on the next day itself, he has paid another sum of Rs. 5 lakhs on 30-08-2010 by way of RTGS as shown in Ex.P. 2.
11. On the other hand, the defendant by specifically denying the receipt of the said sum of Rs. 5 lakhs on O.S.No.1236/2014.
the date of agreement of sale, has contended that on the date of entering in to the agreement of sale as per Ex.P.1 and though it has been mentioned in Ex.P. 1 that a payment of Rs. 5 lakhs has been paid by the plaintiff on the said date itself, the plaintiff has not paid a single paise on that day as he had not brought any money on that date and as such, the said sum of Rs. 5 lakhs towards the advance sale consideration as mentioned in Ex.P.1 was transferred to his account on the immediate next day i.e. on 30-08-2010 and therefore, the total sale consideration received by him from the hands of plaintiff was only Rs. 26 lakhs and all payments were made to him only by way of transfer of money to his account through RTGS as shown in Ex.P. 2 and not Rs. 31,00,000/- as stated by the plaintiff.
12. Though the plaintiff while examining himself as P.W.1, got marked Ex.P. 1 and P.2, he has not examined any of the attesting witnesses on his behalf to prove the payment of Rs.5 lakhs to the defendant on the date of execution of the sale agreement. Since the defendant has denied the receipt of the advance sale consideration of Rs.5 lakhs on 29-08-2010 as mentioned in Ex.P. 1 and since the burden of proving the said fact heavily rests upon the plaintiff, it was the bounden duty of the plaintiff to prove the said fact by placing cogent materials and also by examining the O.S.No.1236/2014.
attesting witnesses of Ex.P. 1. But, for the best reasons known to the plaintiff, the plaintiff has not taken pain to examine any of the attesting witnesses of Ex.P. 1 to prove the payment of said Rs. 5 lakhs to the defendant on 29-08-2010.
13. Ex.P.1 sale agreement also does not disclose any thing as to in which manner the said sum of Rs. 5 lakhs was paid to the defendant. P.W.1 during his cross- examination has also admitted the said fact. Though he has stated that the said amount was paid by way of cash, to prove that on the said date he possessed a sum of Rs. 5 lakhs and paid the same to the defendant at the time of execution of Ex.P.1, he has not placed any material before this Court nor has examined at least one of the attesting witnesses who happened to be his own brother and no explanation is offered by the plaintiff as to why he has not examined his brother as a witness to prove the factum of payment of advance sale consideration of Rs. 5 lakhs. Ex.P.2 is also silent about the said payment. As on 30-08-2010, only a sum of Rs. 5,95,040/- was the only amount which was lying in the account of plaintiff right from 23-08-2010 and there are no withdrawals at least to draw an inference that the said sum of Rs. 5 lakhs was withdrawn by him and he carried the same with him on the date of execution of sale agreement and paid the same to the defendant. Therefore, in the O.S.No.1236/2014.
absence of any corroborating evidence in addition to the oral testimony of P.W. 1 and Ex.P. 1, it cannot be believed that on the date of execution of sale agreement i.e. on 29-08-2010, the plaintiff had paid a sum of Rs. 5 lakhs to the defendant by way of cash.
14. On the other hand, the case put forth by the defendant that on 29-08-2010, the plaintiff had not come with money and had promised to make payment on the next date and accordingly on the immediate next date i.e. on 30-08-2010, the plaintiff transferred a sum of Rs. 5 lakhs to his account by way of RTGS as shown in Ex.P. 2 appears to be more probable and believable. The further explanation offered by the defendant that since he knew the plaintiff and his family members for a long while and as such, he executed the sale agreement on 29-08-2010 acknowledging the receipt of Rs. 5 lakhs in spite of plaintiff not paying any amount on the said date and that he received the same on the next date by way of RTGS transfer, do inspire the confidence of this Court as to what actually might have transpired on the said date of execution of sale agreement, which probablizes the defence put forth by the defendant.
15. During the course of arguments, the counsel for the plaintiff vehemently argued that there cannot be any oral evidence to the exclusion of documentary evidence O.S.No.1236/2014.
as per Secs.91 and 92 of The Indian Evidence Act in view of the admission made by the defendant regarding execution of Ex.P.1, wherein it has been clearly recited that the defendant has received a sum of Rs.5 lakhs as advance sale consideration and therefore, the plaintiff need not examine any of the attesting witnesses of Ex.P.1. He further argued that D.W.1 during the course of his cross-examination has clearly admitted that he has affixed his signature to Ex.P.1 after going through the same and when such is the situation, he is not entitled to dispute the receipt of Rs.5 lakhs.
16. The said arguments canvassed by the Counsel for the plaintiff cannot be accepted in view of the absence of specific recitals in Ex.P.1 regarding the mode of payment of the said advance sale consideration amount of Rs.5 lakhs thereby giving scope for raising dispute regarding payment of the said amount and in such an event it was the bounden duty of the plaintiff to lead oral evidence to corroborate the contents of Ex.P.1. As the plaintiff has not proved the payment of the said advance amount of Rs.5 lakhs by examining any of the attesting witnesses to Ex.P.1, it cannot be said that the plaintiff has proved the terms of the contract as mentioned in Ex.P.1 in accordance with Sec.91 of The Indian Evidence Act to exclude the oral evidence as per Sec.92 of The Indian Evidence Act as O.S.No.1236/2014.
it is the plaintiff who has approached this Court with a specific contention with a view to obtain a decree for specific performance of contract from the hands of this Court and as per Sec.101 of The Indian Evidence Act, the plaintiff has to discharge the burden of proving the existence of Ex.P.1 and the payment of advance sale consideration under Ex.P.1.
17. Therefore, this Court is of the opinion that though the plaintiff has proved that the defendant had agreed to sell the suit schedule property for a sum of Rs. 68 lakhs on 29-08-2010 agreeing to execute the sale deed on or before 31-01-2011 and executed the said sale agreement dtd. 29-08-2010, he failed to prove the passing of advance sale consideration of Rs. 5 lakhs on the very same day. However, in view of the admission made by the defendant that he has received a sum of Rs. 26 lakhs through RTGS towards the part payment of sale consideration coupled with Ex.P.2, which shows the payment of Rs. 26 lakhs on various dates, this Court is of the opinion that the plaintiff has proved the payment of said Rs. 26 lakhs to the defendant towards the balance sale consideration amount. Hence, there is no hesitation for this Court to answer issue No.1 partly in the affirmative and issue No.2 in the affirmative. Accordingly, I answer issue No.1 partly in the affirmative and issue No.2 in the affirmative.
O.S.No.1236/2014.
18. ISSUE NO.3:- It is the specific contention of the plaintiff that ever since the date of execution of sale agreement, he was always ready and willing to perform his part of contract by keeping the balance sale consideration amount ready with him and even now, he is ready to perform his part of contract. On the other hand, it is the specific case of the defendant that even though he has completed the construction in the month of December 2010 itself and has performed the Gruhapravesham on 05-06-2011 itself the plaintiff was not at all ready and willing to perform his part of contract within the stipulated period of 5 months i.e. on or before 31-01-2011 and has not come forward to comply with his part of obligation mentioned in the sale agreement, but on the other hand, the plaintiff along with his brother approached him and had voluntarily canceled the sale agreement dtd.29-08- 2010 in the year 2011 itself stating that he is in need of the said advance amount paid by him and as such, he has repaid the entire advance sale consideration amount to the plaintiff and his brother M.S.Vishwanathan.
19. It is his further contention that he has paid in all a sum of Rs. 21 lakhs by way of cash/RTGS/NEFT to the plaintiff's brother M.S.Vishwanathan as per the instructions of the plaintiff and a final sum of Rs. 5 lakhs to the plaintiff by way of cheque bearing O.S.No.1236/2014.
No.106416 dtd.12-01-2013 drawn on M/s.Deepak Sahakari Bank, Sriramapuram, Bengaluru and the plaintiff has encashed the same, which clearly shows that the plaintiff was not ready and willing to perform his part of contract and was not in a position to make the balance payment and to get the sale deed registered in his name and for that reason, he has canceled the said sale agreement by receiving the entire advance sale consideration of Rs. 26 lakhs from him.
20. To prove the readiness and willingness, the plaintiff by reaffirming the plaint averments, got marked the certified copy of the sale deed dtd. 22-01-1997 and the translated copy of the same as per Ex.P. 6 and P.6(a), certified copy of Partition Deed dtd.29-06-1998 and the translated copy of the same as per Ex.P. 7 and P.7(a), computer generated statement of accounts for the period from 01-10-2010 to 31-03-2011 of plaintiff with CISCO Systems along with certificate under Sec.65B of the Indian Evidence Act, 1872 as per Exs.P. 8 and P.9. A perusal of the said Ex.P.6 to P.9, no doubt discloses that the plaintiff had sufficient source to pay the balance sale consideration to the defendant as on 31-03-2011, which clearly indicates the readiness of the plaintiff to perform his part of contract. However, mere proof of readiness on the part of the plaintiff is not sufficient to obtain a decree O.S.No.1236/2014.
for specific performance of contract and the proof of willingness is also equally necessary to succeed in his suit.
21. A perusal of the suit records discloses that though the plaintiff was ready with the balance sale consideration to get the sale deed executed in respect of the suit schedule property, he was not willing to perform his part of obligation as per Ex.P. 1. As per Ex.P. 1, the date that was fixed for performance of contract was 31-01-2011, but for the reason best known to him, the plaintiff has not shown his willingness to get the sale deed executed from the defendant, as can be seen from his very conduct in filing this suit at a belated stage and this suit has been filed after long lapse of more than 3 years from the date of expiry of the last day fixed for performance of the contract.
22. Of course from the conduct of the parties, it can be seen that time was not the essence of the contract. However, it was the bounden duty of the plaintiff to show by his conduct that he was not only ready, but was also willing to get the sale deed executed from the defendant by doing some act like calling upon the defendant to perform his part of contract by issuing a legal notice immediately after the expiry of the period stipulated in the agreement and by approaching this Court without wasting any time or at least O.S.No.1236/2014.
approaching this Court seeking for the enforcement of the contract within a reasonable time by not waiting till the expiry of 3 years of limitation period to file this suit. The fact that this suit is filed after long lapse of more than three years after expiry of the stipulated period of 5 months clearly discloses that the plaintiff was not willing to perform his part of contract.
23. That apart, the very conduct of the plaintiff in receiving back a sum of Rs. 5 lakhs as admitted by him in his cross-examination on 12-01-2013 through cheque bearing No.106416 also discloses that the plaintiff was not willing to perform his part of contract and had given up his right of seeking for specific performance of contract. Even after admitting the receipt of a sum of Rs. 5 lakhs from the defendant on 12-01-2013, the plaintiff has not chosen to give any explanation either in his plaint as to, towards which transaction he has received the said sum of Rs. 5 lakhs or in his cross-examination when he was confronted with a question regarding payment of said sum of Rs. 5 lakhs through cheque which clearly demonstrates that the plaintiff had canceled the said sale agreement as contended by the defendant and had received the said sum of Rs. 5 lakhs in return from the defendant.
24. The silence on the part of the plaintiff to give any explanation as to, towards which transaction he has O.S.No.1236/2014.
received a sum of Rs. 5 lakhs coupled with his conduct in not disclosing the said fact either in the legal notice issued by him or in the plaint or in his examination-in-chief affidavit demonstrate that the plaintiff has also not approached this Court with clean hands and has suppressed the material facts. Some attempt was made during the course of reply arguments by the counsel for the plaintiff to explain that the said receipt of Rs.5 lakhs by the plaintiff was towards the excess of payment made by the plaintiff to the defendant and the same was not towards the said sum of Rs.31 lakhs. However, the said attempt made by the counsel for the plaintiff to patch up the lacuna on the part of the plaintiff is not believable and will not enure to the benefit of the plaintiff. Therefore, from the above above said facts and circumstances, this Court is of the opinion that the plaintiff has failed to prove that he was always ready and willing to perform his part of contract.
25. The counsel for the plaintiff during the course of his arguments has relied on the following decisions:
1.AIR 1999 SC 3029 in the matter between Syed Dastagir Vs. T.R.Gapalakrishna Setty, wherein it has been held as under:
(B) Specific Relief Act (47 of 1963), S.16(c) Expln.(i) -
"Readiness and willingness to perform" contract - Compliance of -Has to be in spirit and substance and not in letter and form - Absence of form cannot dissolve O.S.No.1236/2014.
essence if already pleaded - Plaintiff reciting that all balance amount of consideration under contract was paid by him except Rs.120 which he has tendered in Court - Provisions under S.16(c) cannot be said to be not complied with - Payment of balance amount in Court without Court's order - Not to be construed adversely against plaintiff under Explanation (I).
2.AIR 2002 Madras 353 in the matter between Sri.Brahadambal Agency and Partnership Firm Vs. Ramasamy and others, wherein it has been held as under:
(A) Contract Act (9 of 1872) , S.55-- Time whether of essence of contract - Contract for sale of immovable property - No emphasis made in agreement specifically stipulating that time was of essence of contract - No notice issued by vendor to purchaser laying such emphasis that time was of essence of contract - Held, time was not of essence of contract. Specific Relief Act (47 of 1963), S.16-- So far as the contract of immovable properties is concerned, time is not the essence of the contract. Of course, this dictum of law is subject only to two exceptions, the first one being that it should be stipulated in the contract itself that time is the essence of the contract so far as the agreement is concerned and the second one is that the party considering the time stipulated the essence of the contract should put the other party on notice specifying that time is considered the essence of the contract.
Unless both these conditions are not complied with, the rule that time is not the essence of the contract so far as it is concerned with the immovable properties shall prevail.
26. The ratio laid down in the said decisions are not applicable to the facts of the present case as the facts and circumstances of the said cases referred and the facts and circumstances of the above case are entirely different. Therefore, this Court is of the opinion that the though the plaintiff has proved his readiness to O.S.No.1236/2014.
perform his part of contract, he thoroughly failed to prove his willingness to perform his part of contract. Accordingly, I answer issue No.3 in the negative.
27. ISSUE NO.4:- Though the plaintiff has specifically contended that he was always ready and willing to perform his part of contract and had sufficient source to perform his part of contract as he was earlier employed at CISCO Systems in USA as technical architect and later moved to Sipera Systems as a Director of Engineering and now he is having his own business and therefore, he had sufficient source to pay the balance sale consideration amount and that he approached the defendant on various occasions requesting the defendant to execute the sale deed by receiving the balance sale consideration amount and in spite of his several requests and demands, the defendant failed to execute the sale deed by reason of not completing the construction of the said apartment building and also in not obtaining separate khatha in respect of the suit schedule property and has also proved his readiness by relying on Ex.P.8, he has thoroughly failed to prove that he was willing to perform his part of contract and this Court while answering issue No.3 in the negative has already held that the plaintiff was not willing to perform his part of contract and when the plaintiff himself was not willing to perform his part of contract, the question of O.S.No.1236/2014.
considering the failure on the part of the defendant to execute the sale deed in spite of his requests and demands and issuance of legal notice on 01-06-2013 does not arise. Merely because the plaintiff got issued a legal notice dtd.01-06-2013 as per Ex.P. 3 and merely because the defendant failed to give reply to the said legal notice, it cannot be held that the plaintiff has proved that in spite of his requests and demands, the defendant failed to execute the sale deed and to perform his part of contract.
28. As could be seen from the very conduct of the plaintiff in receiving back a sum of Rs. 5 lakhs from the advance sale consideration amount paid by him through cheque from the defendant and the inaction on the part of the plaintiff for a long time without taking any action against the defendant in enforcing the said agreement of sale dtd.29-08-2010 within a reasonable time, not even bothering to file the suit for specific performance before the expiry of the limitation period of 3 years from 31-01-2011 being the date fixed for performance of the contract, clearly shows that the plaintiff himself was not willing to perform his part of contract and has terminated the said contract by his conduct. When he has by his conduct terminated the contract, the question of he seeking the enforcement of said contract did not arise, likewise the failure on the part of the defendant to perform his part of O.S.No.1236/2014.
contract also did not arise. As such, this Court is of the opinion that the plaintiff has utterly failed to prove issue No.4. Accordingly, I answer issue No.4 in the negative.
29. ISSUE NO.5:- Though the defendant has contended that the suit is not properly valued and the Court Fees paid is not sufficient, the defendant has neither pleaded nor came up with any cogent evidence either oral or documentary as to how the valuation made by the plaintiff is not proper and the Court Fees paid is insufficient. A perusal of the valuation slip filed by the plaintiff clearly demonstrates that the plaintiff by valuing the suit for the relief of specific performance of contract under Sec.40 of The Karnataka Court Fees and Suits Valuation Act, 1958 at Rs. 68 lakhs being the sale consideration amount shown in Ex.P.1, has paid the Court Fees of Rs. 2,34,125/- as per Article-1 in Schedule -1 of The Karnataka Court Fees and Suits Valuation Act, 1958, which is proper and sufficient. Therefore, without much discussion, this Court answers issue No.5 in the affirmative.
30. ISSUE NO.6:- Though the plaintiff has been able to prove that the defendant had agreed to sell the suit schedule property for a total sum of Rs. 68 lakhs by entering into a sale agreement dtd.29-08-2010 and has paid a sum of Rs. 26 lakhs to the defendant O.S.No.1236/2014.
through RTGS towards the balance sale consideration, he has failed to prove the payment of advance sale consideration of Rs. 5 lakhs under Ex.P. 1- sale agreement and this Court has accordingly answered issue No.1 partly in affirmative and partly in negative. Similarly though the plaintiff has proved that he was ready to perform his part of contract, he has utterly failed to prove his willingness to perform his part of contract and this Court has accordingly answered issue No.3 in the negative.
31. When the plaintiff has failed to prove his willingness to perform his part of contract, naturally he is not entitled for the relief of specific performance of contract and this Court is of the opinion that this is not a fit case to grant the relief of specific performance of contract. The reason being two folds; the first one is that the suit for the relief of specific performance is highly barred by limitation and the second one being failure on his part to prove his willingness to perform his part of contract. Admittedly, the Agreement of Sale was entered on 29-08-2010 with a stipulation that the sale transaction shall be completed on or before 31- 01-2011, thereby making the time as essence of contract. Even if the version put forth by the plaintiff that the time is not the essence of the contract is accepted, then also as per Article-54 of the Limitation Act, the plaintiff ought to have filed this suit for O.S.No.1236/2014.
specific performance of contract on or before 31-01- 2014.
32. Admittedly, the present suit is filed on 13-02-2014 after lapse of 13 days from the date of expiry of limitation period of 3 years prescribed under Article- 54 of The Limitation Act from the date fixed for performance i.e. from 31-01-2011.
33. As per the ratio laid down by the Hon'ble Supreme Court of India and also various Hon'ble High Courts in various decisions, the relief of specific performance should be sought by the plaintiff within a reasonable time even though the time is not the essence of contract and he shall not wait for the last date of prescribed period of limitation. But, in the present case, the plaintiff has neither approached this Court within reasonable time nor within the prescribed period of limitation as rightly pointed out by the counsel for the defendant. As rightly argued by the counsel for the defendant, even though limitation has not been set up as a defence in the written statement and no issue regarding the limitation is framed, it is the bounden duty of the this Court to see that whether the suit is barred by limitation or any law and that whether this Court has got jurisdiction to try this suit as the said questions relating to the jurisdiction of a Court including limitation goes to the O.S.No.1236/2014.
very root of the Court's jurisdiction to entertain and decide a matter as held by the Hon'ble Supreme Court of India in the matter between Kamalesh Babu and others Vs. Lajpath Rai Sharma and others in Civil Appeal No.2815 of 2008 decided on 16-04-2008 relied by the counsel for the defendant.
34. The explanation offered by the plaintiff that the time was not the essence of contract and the stipulated time fixed for performance of the contract was to run from the date of receipt of written communication from the defendant regarding completion of construction and obtaining individual Khatha in respect of suit schedule property in his name as per Clause No.3 of Ex.P.1 cannot be accepted for the reason that there is no such recitals found in Clause No.2 and 3 of Ex.P.1. As per Clause No.2 of Ex.P.1, the date fixed for execution of sale deed in favour of plaintiff was on or before 31-01-2011 or on the day of handing over the possession of the Apartment whichever is earlier and it is further recited that both the parties may mutually extend the period for execution of the sale deed.
35. A perusal of Clause No.3 of Ex.P.1 does not make the written communication regarding obtaining of individual khatha in respect of suit schedule property in the name of the defendant from BBMP as condition O.S.No.1236/2014.
precedent in respect of the condition mentioned in Clause No.2. Nowhere it is mentioned either in Clause No.2 or Clause No.3 of Ex.P.1 that the period stipulated for execution of the sale deed shall start to run from the date of written communication by the defendant regarding the completion of construction and obtaining individual khatha in his name. Therefore, the period of limitation to file this suit started immediately after expiration of 31-01-2011 being the last date fixed for execution of the sale deed and as such, the plaintiff ought to have filed the suit for specific performance on or before 31-01-2014. Since the suit is filed on 13-02-2014, the plaintiff is definitely not entitled for the relief of specific performance of contract.
36. Had the plaintiff filed this suit only for the relief of specific performance without seeking for the alternative relief for refund of the earnest money, the suit of the plaintiff ought to have been dismissed on the ground of limitation alone. Since the plaintiff has sought for the relief of refund of earnest amount as an alternative prayer, it is just and necessary for this Court to have a look as to whether the plaintiff is entitled for the alternative relief. Though the suit for specific performance of contract is hit by Article-54 of The Limitation Act, alternative relief of refund of earnest money is well within the period of limitation, O.S.No.1236/2014.
in view of the acceptance of the repayment of Rs. 5 lakhs by the plaintiff on 12-01-2013 from the defendant which was made by the defendant through a cheque bearing No.106416 dtd.12-01-2013 drawn on M/s. Deepak Sahakari Bank, Srirampuram, Bengaluru, as could be seen from the entry found in Ex.D. 5 and also from the admission made by P.W. 1 in his cross-examination and suggestions made by the counsel for the plaintiff during the stage of cross- examination of D.W. 1.
37. Though the defendant has specifically contended that he has paid the entire advance sale consideration of Rs. 26 lakhs to the plaintiff by way of cheque and also by making payment to his brother Sri.M.S. Viswanathan and to prove the same, he has relied on Ex.D. 1 to D.4, the defendant has utterly failed to prove the repayment of entire advance sale consideration amount of Rs. 26 lakhs which was received by him from the plaintiff. Except proving the payment of Rs. 5 lakhs through the above said cheque, the defendant has not produced any cogent material to prove the repayment of the entire sale consideration amount of Rs. 26 lakhs as contended by him.
38. A perusal of Ex.D. 1 to D.4 though discloses that some payments have been made to the tune of Rs.
O.S.No.1236/2014.
10,60,000/-, all the said payments have been made to M/s. VEL Enterprises, which was admittedly a proprietorship concern of the plainitff's brother named Sri.M.S. Vishwanathan. As rightly pointed out by the counsel for the plaintiff, some payments have been made even during the stipulated period of 5 months required for performance of contract, during which the defendant has received some advance payments as per payment schedule of Ex.P.1. Even otherwise, the said payments alleged to be made to the plaintiff's brother cannot be accepted as the payments made on behalf of the plaintiff in view of the admission made by the defendant himself that he had business dealings with the plaintiff's brother named Sri.M.S. Vishwanathan. The defendant has also failed to prove the fact that the said payments have been made to the plaintiff's brother under express instructions of the plaintiff towards refund of earnest amount. As such, the said payments said to have been made to the plaintiff's brother named Sri.M.S. Vishwanathan under Ex.D.1 to D.4 cannot at any stretch of imagination to be construed as payments made to the plaintiff towards the refund of the earnest money paid by the plaintiff.
39. That apart, as rightly pointed out by the plaintiff, he had separate dealings and was not living in a joint family with his parents and brothers as could be seen O.S.No.1236/2014.
from Ex.P. 7 registered Partition Deed and admitted by D.W. 1 himself. The said sale agreement which was entered by the plaintiff was also not on behalf of the joint family of the plaintiff and it is nobody's case that the sale agreement was entered by plaintiff on behalf of the joint family. Hence, at any stretch of imagination, it cannot be presumed that the payments that have been made by the defendant to the plaintiff's brother named Sri.M.S. Vishwanathan was towards the refund of the earnest money paid by the plaintiff. If really the said payments were made by the defendant towards refund of the earnest money, as rightly contended by the plaintiff, there was no necessity for the defendant to even receive the payments from him on 11-01-2011 to the tune of Rs. 2,50,000/- and on 14-01-2011 to the tune of Rs. 3,50,000/- as reflected in Ex.P. 2 and there was no impediment as admitted by the defendant to get at least an endorsement to the effect that the said payments were made by the defendant towards the refund of the earnest money and produce the same before this Court in proof of the said defence taken by him.
40. As such, this Court is of the opinion that the defendant has utterly failed to prove that he has refunded the entire earnest money of Rs. 26 lakhs received by him from the plaintiff though he has O.S.No.1236/2014.
proved the repayment of only Rs. 5 lakhs. Therefore, in view of the admission by the defendant that he had in total received a sum of Rs. 26 lakhs and in view of his failure to prove the repayment of the balance amount of Rs. 21 lakhs to the plaintiff, naturally the plaintiff is entitled for refund of the balance sale consideration amount of Rs. 21 lakhs from the defendant along with a current interest at the rate of 12% p.a. from the date of filing the suit till the date of this judgment and future interest at the rate of 6% p.a. from the date of this judgment till realization. Therefore, this Court is of the opinion that the suit of the plaintiff though does not deserve for grant of specific performance of contract, the same deserves to be decreed in part in respect of the alternative relief of refund of earnest money to the tune of Rs. 21 lakhs along with interest as stated above. Accordingly, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby decreed in part in respect of the alternative relief of refund of earnest money to the tune of Rs.21 lakhs only with proportionate costs.
The suit in respect of specific performance of contract is hereby dismissed.
The plaintiff is entitled for recovery of a sum of Rs.21,00,000/- (Rupees Twenty One Lakhs only) along with current simple interest at the rate of 12% p.a. from the date of suit till the date of this judgment and O.S.No.1236/2014.
future interest at the rate of 6% p.a. from the date of this judgment till realization.
The defendant is hereby directed to pay the decreetal amount to the plaintiff within 3 months from the date of this judgment.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed thereof, corrected, signed and then pronounced by me in the open Court on this THE 29 th DAY OF AUGUST 2020).
(MAANU K.S.), XXX Addl. City Civil & Sessions Judge, Bengaluru City.
O.S.No.1236/2014.
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF/S:
P.W.1 M.S.Karthikeyan.
WITNESSES EXAMINED FOR THE DEFENDANTS/S:
D.W.1 D.Venkateshan.
DOCUMENTS MARKED FOR THE PLAINTIFF/S:
Ex.P.1 Sale agreement dtd.29-08-2010 Ex.P.2 Statement of account from 01-08-2010 to 31-10-2011.
Ex.P.3 Legal notice dtd.01-06-2013.
Ex.P.4 Postal acknowledgement.
Ex.P.5 Khatha extract.
Ex.P.6 Sale Deed Dtd.22-01-1997 in Tamil
Language.
Ex.P.6 (a) Translated version of Ex.P.6 in English.
Ex.P.7 Deed of Partition dtd.29-06-1998 in
Tamil Language.
Ex.P.7 (a) Translated version of Ex.P.7 in English.
Ex.P.8 Account statement of plaintiff in CISCO.
Ex.P.9 Certificate under Sec.65B of
Indian Evidence Act.
DOCUMENTS MARKED FOR THE DEFENDANTS/S:
Ex.D.1 to 5 Statement of accounts from 01-11-2010 to 31-01-2013.
Ex.D.1(a) to 5(a) Relevant entries.
(MAANU K.S.), XXX ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY