Bangalore District Court
Kumar P vs Lakshmikumari J G on 6 January, 2025
KABC010185162014
IN THE COURT OF THE XI ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-8)
PRESENT
SRI. B.DASARATHA., B.A., LL.B.
XI Addl. City Civil & Sessions Judge,
Bengaluru City.
DATED THIS THE 6th DAY OF JANUARY, 2025
O.S.No.6604/2014
Plaintiff: Sri. P.Kumar,
Age: 49 years,
S/o. Late P.Adisheshaiah Setty,
Residing at 'Seshadri Nilayam',
No.6/24, 4th Main Road,
Tata Silk Farm, Basavanagudi,
Bangalore - 560 004.
(By Adv. Sri.N.Nagaraja)
Vs.
Defendants: 1. Smt. J.G.Lakshmikumari,
Age: 67 years,
W/o. K.Gowrishankar Setty.
2. Sri. J.Ramachandra Prasad,
2 O.S.No.6604/2014
Age: 42 years,
S/o. Sri.J.Gowrishankar Setty.
Defendants No.1 and 2 are
Residing at No.3844,
SINGHI SAPPHIRE Apartment Building,
Opp: BBMP Swimming Pool, 5th Main,
17th Cross, Banashankari II Stage,
Bangalore - 560 070.
3. Sri. T.A.Sharavana,
Age: 42 years,
S/o. Amaruthakanteshaiah Setty,
Residing at No.2333, "Saidhama",
20th Cross, BSK II Stage,
Bangalore - 560 070.
4. M/s. Vasavi Credit Co-Op. Society Ltd.,
No.21, Puttanna Road,
Gandhi Bazaar, Basavanagudi,
Bangalore - 560 004,
Rep. by its Manager.
(D1 & 2 by Adv. Sri. K.T.Dakappa
D3 by Adv. Sri. H.L.Manjunatha
& Sri.A.N.Krishna
D4 by Adv. Sri.C.Srinivasa)
Date of institution of the suit : 28.08.2014
Nature of the suit : Specific Performance of
Contract
Date of commencement of : 05.12.2017
Recording of the evidence
Date on which the Judgment : 06.01.2025
was pronounced
3 O.S.No.6604/2014
Total Duration : Years Months Days
10 04 08
XI ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
JUDGMENT
This is a suit filed by the plaintiff for the relief of judgment and decree of specific performance of contract.
2. The brief averments of plaint is as follows: -
The defendant No.1 and 2 represented to the plaintiff that they are the owners of residential duplex Flat described in the suit schedule "B" and "C:. The site on which the apartment building is constructed is described in the suit schedule "A". The defendant No.1 and 2 offered to sell the suit schedule property free from encumbrances in favour of plaintiff.
2(a). The plaintiff along with his family members is presently residing in an under construction building consisting of only one hall and a bathroom. The said property is also the subject matter of claims of his 6 sisters and 4 brothers, a family consisting of 10 children. A mentally retarded, physically handicapped, disabled born deaf and dumb who is bedridden for the past 48 years is also staying with the plaintiff. The 4 O.S.No.6604/2014 plaintiff has to take care of his younger brother and sisters in all respects as both his parents are expired. The accommodation which is available to the plaintiff is highly insufficient and the plaintiff and his family members are undergoing great inconvenience to continue to live in their present residential premises until today.
2(b). In the above circumstances, the plaintiff agreed to purchase "C" schedule Flat together with undivided right, title and interest described in suit schedule "B" property from defendant No.1 and 2. After mutual negotiations, defendant No.1 and 2 agreed to sell "B" schedule property together with undivided right, title and interest in land comprised in suit schedule "A" property together with duplex apartment building described in suit schedule "C" property to the plaintiff for consideration amount of ₹80,00,000/-.
2(c). The plaintiff contends that, immediately after the parties agreed upon to sell "B" and "C" schedule properties to the plaintiff, defendant No.1 and 2 insisted payment of ₹10,00,000/- as first token advance. Accordingly, the plaintiff had paid a sum of ₹10,00,000/- to defendant No.1 and 2 by way of cheques on 02/01/2014 and also by way of cash on 03/01/2014.
2(d). Thereafter, the terms agreed between the parties were incorporated in an Agreement of Sale dated 11/01/2014. A typed Agreement was handed over to defendant No.1 and 2 for 5 O.S.No.6604/2014 their approval by the plaintiff. The defendant No.1 and 2 for the best reasons known to them went on postponing execution of the Agreement of Sale. It is only on 12/02/2014, defendant No.1 and 2 called upon the plaintiff and stated that plaintiff should pay to them a further sum of ₹40,00,000/- as second token advance towards sale consideration and which also should be incorporated in the Agreement of Sale and the sale transaction shall be completed within 2 months from 12/02/2014 i.e., the date of signing of Agreement dated 11/01/2014. The defendant No.1 and 2 further insisted that unless a sum of ₹40,00,000/- is paid and the term to complete the sale transaction within two months from 12/02/2014 is incorporated, they would not sign the Agreement of Sale. The original Agreement that has been prepared did not reflect payment of ₹40,00,000/- and also the term for completion of sale transaction. In the circumstances, two additional stamp papers were purchased and included in the Agreement and numbered in between as 10A and 10B.
2(e). The plaintiff contends that, he had paid ₹40,00,000/- to defendant No.1 and 2 as further second token advance towards the sale consideration to the defendants on the date of execution of Agreement on 12/02/2014 by way of cheques, drawn on Karnataka Bank Ltd., City Market Branch, Bangalore.
2(f). After receiving the cheques dated 12/02/2014, the defendant No.1 and 2 executed the Agreement of Sale and 6 O.S.No.6604/2014 affixed their signatures on each and every page and handed over the signed/execution agreement to the plaintiff on 14/02/2014. The plaintiff affixed his signature on 14/02/2014. As per the terms of Agreement of Sale, the plaintiff has to pay the balance sale consideration of ₹30,00,000/- and get the Sale Deed executed in his favour by defendant No.1 and 2. Thus, an Agreement of Sale between the plaintiff and defendant No.1 and 2 came into existence whereunder defendant No.1 and 2 agreed to sell the plaintiff the suit schedule "B" and "C" property for a consideration of ₹80,00,000/-.
2(g). The defendant No.1 and 2 have duly acknowledged the receipt of total sum of ₹50,00,000/- from the plaintiff as total advance towards the sale consideration in the Agreement of Sale. It was agreed that plaintiff shall pay the balance sale consideration amount of ₹30,00,000/- at the time of registration of Sale Deed. The sale transaction shall be executed within two months from 12-02-2014, i.e., from the date of signing of the Agreement of Sale. The defendant No.1 and 2 agreed and undertook to deliver the vacant possession of suit schedule "B" and "C" property to the plaintiff at the time of registration of Sale Deed by satisfying the plaintiff that property was free from all encumbrances and defendant No.1 and 2 are the absolute owners of suit schedule property.
2(h). The plaintiff contends that, he was and is always been ready and willing to perform his part of the contract and to 7 O.S.No.6604/2014 pay the balance sale consideration of ₹30,00,000/- to the defendant No.1 and 2 and to obtain the Sale Deed duly registered by meeting the registration expenses. The plaintiff also furnished to defendent No.1 and 2 the draft of Sale Deed. The plaintiff also requested defendant No.1 and 2 to fix up a date for execution of Sale Deed in terms of the Agreement of Sale dated 11-01-2014, executed on 12-02-2014. Since defendant No.1 and 2 are close relatives of plaintiff and he had placed immense trust on them. The defendant No.1 and 2 initially fixed the date for registration of Sale Deed on 20.03.2014 which they thereafter postponed to 26.03.2014 and later on, stated that they would execute the Sale Deed on 08.04.2014. The defendant No.1 and 2 encashed the cheques only on 07.04.2014. The plaintiff waited near the Sub-
Registrar's Office on 08-04-2014 hoping to complete the sale transaction by that date. Surprisingly, defendant No.1 and 2 did not turn up and did not complete the sale transaction although plaintiff was fully ready and willing to complete the sale transaction. The plaintiff was ready to pay the balance sale consideration of ₹30,00,000/- to defendant No.1 and 2 and waited at the Office of Sub-Registrar. The defendant No.1 and 2 deliberately avoided to execute the Sale Deed on one pretext or the other. Therefore, the plaintiff got issued a legal notice dated 10-04-2014 to defendant No.1 and 2, informing them that plaintiff is ready and willing to pay the balance consideration of ₹30,00,000/- and calling upon them to execute registered Sale Deed. Though, defendant No.1 and 2 received the said notice 8 O.S.No.6604/2014 dated 10.04.2014, but sent reply on 23.04.2014 by putting forward untenable contentions. The defendant No.1 and 2 in the reply have falsely contended that Agreement of Sale was executed on 11/01/2014.
2(i). The defendant No.1 and 2 for the first time cooked up a story that cheques were not encashed at the request of plaintiff. They have falsely stated that plaintiff had asked for time for completion of sale transaction till 09/04/2014. The Agreement of Sale provides for completion of sale within two months from 12/02/2014 to 12/04/2014. There is no question of seeking extension of time to complete sale transaction. The defendants have stated in the reply that, Agreement of Sale was cancelled and the advance amount paid by the plaintiff is forfeited on expiry of 09/04/2014. The act of defendant No.1 and 2 is unreasonable and arbitrary and without any justification. This is evident from the conduct of defendant No.1 and 2 that the Agreement of Sale provided for completion of sale transaction within two months from 12/02/2014 till 12/04/2014. The contention of defendant No.1 and 2 is incorrect, fallacious and does not stand scrutiny of title. The completion of the sale transaction under the Agreement of Sale was till 12/04/2014 and not 09/04/2014 as sought to be made out. The plaintiff sent rejoinder notice dated 07/05/2014 to defendant No.1 and 2 making it clear to them that obligation for completion of sale transaction in terms of Agreement was not on 09/04/2014 and it was on 12/04/2014.
9 O.S.No.6604/20142(j). The plaintiff once again reiterated to defendant No.1 and 2 about his readiness and willingness to pay the balance sale consideration and to obtain Sale Deed from them by making it clear that he had never requested them to delay presenting the cheques to the bank. The defendant No.1 and 2 for the best reason known to them did not encash the cheques till 07/04/2014. The plaintiff learnt that there has been some internal discussions and conflicts between defendant No.1 and 2 and other family members regarding encashment of cheques and that is the reason encashment of cheques was delayed till 07/04/2014. The plaintiff is/always ready and willing to pay the balance sale consideration. The defendant No.1 and 2 have deliberately raised false contentions in their reply notice dated 23/04/2014 with an intention to avoid executing of Sale Deed in favour of plaintiff in terms of Agreement of Sale. The plaintiff thereafter sent another rejoinder notice dated 07/05/2014 to defendant No.1 and 2 and once again requested them to complete the sale transaction. The defendants No.1 and 2 did not send any reply to the said notice. Thereafter, plaintiff once again sent legal notice to defendant No.1 and 2 on 10/06/2014 and intimated defendant No.1 and 2 about the availability of sum of ₹30,00,000/- with him and once again, requested them to complete the sale transaction.
2(k). The defendant No.1 and 2 are bound to execute the Sale Deed conveying the suit schedule property to the plaintiff in terms of Agreement of Sale dated 11/04/2014, 10 O.S.No.6604/2014 executed on 12/02/2014. The defendant No.1 and 2 could not have unilaterally cancelled the Agreement of Sale. The defendant No.1 and 2 in spite of service of notice dated 10/06/2014 failed to execute the Sale Deed in favour of plaintiff.
2(l). The plaintiff contends that defendant No.2 is a very close associate of defendant No.3. The plaintiff also requested defendant No.3 to use his good office to advise defendant No.1 and 2 to execute the Sale Deed in favour of plaintiff by receiving the balance sale consideration. The defendant No.3 assured the plaintiff that he would advise defendant No.1 and 2 suitably. However, nothing happened and plaintiff having no other alternative but to file the suit. After obtaining the encumbrance certificate on 04/07/2014, the plaintiff learnt that defendants in collusion and with an intention of creating complications have brought into existence a collusive Sale Deed dated 05/06/2014 under which defendant No.1 and 2 purports to have sold the suit schedule property to defendant No.3. The defendant No.3 was fully aware of Agreement of Sale executed by defendant No.1 and 2 in favour of plaintiff. The defendant No.3 is not a bonafide purchaser. The defendants have clandestinely and with an intention of defeating the rights of plaintiff have shown the sale consideration as ₹80,00,000/- in the Sale Deed dated 05/06/2014. The defendant No.3 has in turn created the document purporting to be an equitable mortgage in favour of M/s. Vasavi Credit Co-operative Society Ltd., making it appear as if he has borrowed loan of ₹75,00,000/- from the said 11 O.S.No.6604/2014 Society on the security of suit schedule "B" and "C" properties. The defendants have deliberately by playing fraud on the plaintiff have concocted and created the Sale Deed dated 05/06/2014. Hence, Sale Deed executed by defendant No.1 and 2 in favour of defendant No.3 is not binding on the plaintiff.
2(m). The plaintiff further contends that, so-called cancellation of Agreement was unilateral and not communicated to the plaintiff. The defendant No.1 and 2 have deliberately avoided executing the Sale Deed by falsely contending that Agreement stands cancelled. Hence, the plaintiff has also sought for the relief of declaration that the cancellation of Agreement of Sale dated 11/01/2014, executed on 12/02/2014 by defendant No.1 and 2 is illegal and not binding on the plaintiff.
2(n). The plaintiff is residing in a residential premises which is under construction and which consists of only one hall and one bathroom. It is very inconvenient for him to live there. The plaintiff in order to have a residential premises of his own which is convenient to him, he has entered into an Agreement of Sale with defendant No.1 and 2. If discretion is not exercised in favour of plaintiff, he will be put to hardship and irreparable loss and injury. The defendant No.3 is a very big businessman and owns his own residential premises and also has number of commercial complexes. Under these circumstances, plaintiff is entitled to the relief of specific performance of contract. Hence, 12 O.S.No.6604/2014 defendant No.1 and 2 have to be directed to execute the Sale Deed by receiving balance sale consideration and also directing defendant No.3 to join execution of Sale Deed along with defendant No.1 and 2. On these grounds, plaintiff prays to decree the suit with costs.
3. The brief averments of written statement of defendant No.1 and 2 is as follows:-
There is no cause of action to the suit. The suit is not maintainable. The plaintiff has made irrelevant, unnecessary allegations in the suit. The defendant No.1 and 2 denied the execution of Agreement of Sale dated 14/02/2014. The document itself clearly demonstrated that Agreement of Sale is dated 11/01/2014. The plaintiff himself has put the date after his signature to suit his convenience by materially altering the date and falsely claiming that date of Agreement is on 14/02/2014. But, in reality the agreement was on 14/01/2014 and in which Agreement, both the parties have agreed that time is the essence of the contract . It was further agreed that, the plaintiff shall perform his part of obligation within two months. The word used is "within two months" not on or before 2 months. Thus, the intention of the parties is very clear that sale transaction to be completed within 2 months from 11/01/2014. The statement of plaintiff that Agreement was executed on 14/02/2014 is without any substance. However, on the date of Agreement i.e., 11/01/2014 the post dated cheques were given by pleading that 13 O.S.No.6604/2014 he had no funds on 11/01/2014. The defendant No.1 and 2 believing the words of plaintiff, received the said post dated cheques. It is now clear that, the plaintiff intended to make false representation about the execution of Sale Agreement. These defendants denied that any draft of Sale Deed is given to them. There is no Agreement or understanding that Sale Deed to be registered on 20/03/2014 or 26/03/2014 or 08/04/2014. The very fact that the plaintiff not purchasing the demand draft for balance sale consideration to be paid or stamp duty and registration charges on the above said dates clearly demonstrate the falsity of plaintiff. The allegation that the cheques were encashed 07/04/2014 is admitted as true and correct, but the said cheques were given at the time of entering into an Agreement on 11/01/2014. However, the said post dated cheques were not presented as the plaintiff requested defendant No.1 and 2 not to present the cheques.
3(a). The defendant No.1 one is a Senior Citizen and defendant No.2 is a respectable person in the Community. The plaintiff has defamed defendant No.1 and 2. There was no necessity for the plaintiff to wait before the Sub-Registrar, because nobody had told and requested him to wait before the Sub-Registrar on any date. The question of execution of Sale Deed on 10/06/2013 does not arise, as the time is the essence of contract and defendant No.1 and 2 made it clear to plaintiff that they are in dire need of funds and the plaintiff shall complete the transaction within two months from 11/01/2014.14 O.S.No.6604/2014
3(b). These defendants admitted the sale of property. These defendants before selling of the property categorically informed the plaintiff of their intention to sell and their dire need of funds, but the plaintiff not made any attempt to pay the amount and to get the Sale Deed. The defendants having no other option to sell the property as plaintiff pleaded his inability to pay the balance sale consideration immediately or within the agreed period. The defendant No.1 and 2 with great difficulty searched the purchaser and sold the property. The said sale is for the immediate need of defendant No.1 and 2 and not otherwise . The plaintiff is not entitled for the relief of specific performance. The various allegations made against the son of defendant No.1 and defendant No.3 are false, which are invented for the purpose to find out the cause of action for the present suit. There are no collusive Deed as alleged by the plaintiff. The sale was in accordance with law and for valuable consideration to meet urgent demands of defendant No.1 and
2. The plaintiff was not ready and willing to perform his part of obligation in terms of Agreement of Sale dated 11/01/2014. The plaintiff was not owning sufficient funds to purchase the suit schedule property within the time limit stipulated under the Agreement. The plaintiff is not entitled for discretionary relief from the hands of this court. The schedule property is in possession of bonafide purchaser. The plaintiff cannot and shall not ask for any relief let alone the relief of enforcement of Agreement after the expiry of period agreed under the 15 O.S.No.6604/2014 Agreement. On these grounds, these defendant No.1 and 2 prays for dismissal of the suit with exemplary costs.
4. The brief averments of written statement of defendant No.3 is as follows: -
Suit of the plaintiff is not maintainable. This defendant denied the Agreement of Sale executed by defendant No.1 and 2 in favour of plaintiff and also plaintiff paying advance consideration to defendant No.1 and 2. The defendant No.3 denied the sale transaction between plaintiff and defendant No.1 and 2. The defendant No.3 also denied the readiness and willingness of plaintiff to perform his part of obligation and also to pay the balance sale consideration.
4(a). The defendant No.3 denied that defendant No.1 to 3 in collusion created the Sale Deed dated 05/06/2014. This defendant is a bonafide purchaser for valuable consideration.
This defendant has paid a sum of ₹80,00,000/- to defendant No.1 and 2 under the Sale Deed and defendant No.1 and 2 have executed the registered Sale Deed dated 05/06/2014 conveying suit schedule "B" and "C" property to this defendant and this defendant is in physical possession of same. The property is mortgaged in favour of defendant No.4 and this defendant is also paying EMI to the said defendant in order to clear the loan.
16 O.S.No.6604/20144(b). The alleged Agreement of Sale dated 11/01/2014 is undervalued. The plaintiff has not paid the proper stamp duty. The plaintiff has not paid court fee for the relief of cancellation of Sale Deed dated 05/06/2014.
4(c). This defendant has leased out the schedule property. The revenue documents are transferred in the name of this defendant. This defendant has been repaying the loan to defendant No.4 as the property is mortgaged in its favour. On these grounds, this defendant prays for dismissal of the suit of the plaintiff with exemplary costs.
5. The brief averments of written statement of defendant No.4 is as follows: -
The defendant No.3 has obtained loan on the suit schedule property by deposit of title deeds/equitable mortgage. The defendant No.3 has created a charge on the suit schedule property in favour of this defendant . The defendant No.3 is not the Director of M/s. Vasavi Credit Co-operative Society and defendant No.3 is only a member of Society. This defendant is only a formal party to the suit. This defendant is neither a necessary nor proper party to the suit. This defendant is not aware of any of the allegations made by the plaintiff against defendant No.1 to 3 in the plaint. On these grounds, this defendant No.4 prays for dismissal of the suit with exemplary costs.17 O.S.No.6604/2014
6. On the basis of the pleadings of the parties, my predecessor-in-office has framed the following issues and additional issue for determination:-
ISSUES Recasted Issue No.1. Whether the plaintiff establishes that he was and is always ready and willing to perform his part of contract in pursuance of Agreement of Sale dated 12/14.02.2014?
Recasted Issue No.2. Whether the plaintiff proves that termination of Agreement of Sale dated 12/14.02.2014 by defendant No.1 and 2 is illegal?
Issue No.3. Whether the plaintiff establishes that the Sale Deed executed by 1st and 2nd defendants in favour of 3rd defendant is not binding on him?
Issue No.4. Whether the plaintiff is entitled for the relief of specific performance of contract for plaint "B" and "C" schedule property?
Issue No.5. What order or decree?
ADDITIONAL ISSUE
1. Does the 3rd defendant proves he is a bonafide purchaser for valuable consideration?18 O.S.No.6604/2014
7. After settlement of issues, the plaintiff has entered into the witness box as PW-1 and Ex.P.1 to Ex.P.46 were marked through him. On behalf of the defendants, defendant No.2 is examined as DW-2, defendant No.3 is examined as DW-2 and examined one witness as DW-3 and Ex.D.1 to Ex.D.5 were marked through them and closed their side. Ex.C.1 to C.4 were marked.
8. Heard the arguments of the learned counsel for plaintiff and defendants.
9. My findings on the above issues and additional issue are as under:-
Issue No.1: In the negative.
Issue No.2: In the negative.
Issue No.3: In the negative.
Issue No.4: In the negative.
Addl. Issue No.1: In the affirmative.
Issue No.5: As per final order below
for the following:
REASONS
10. Recasted Issue No.1: - It is the case of plaintiff that he had agreed to purchase suit schedule "B" and "C" property from defendant No.1 and 2. It is an admitted fact that plaintiff had agreed to purchase suit schedule "B" and "C" property for sale consideration of ₹80,00,000/-. It is the case of plaintiff that, he had paid token advance of ₹5,00,000/- by way of 2 cheques for ₹2,50,00/- each to defendant No.1 and 2 on 02/01/2014 and 19 O.S.No.6604/2014 also paid ₹5,00,000/- by way of cash 03/01/2014 to the defendant No.1 and 2.
11. According to plaintiff, the terms of Agreement between the parties were incorporated in an Agreement of Sale dated 11/01/2014. A typed Agreement was handed over to defendant No.1 and 2 for their approval by the plaintiff on 11/01/2014. According to the plaintiff, defendant No.1 and 2 for the reason best known to them went on postponing the execution of Agreement of Sale. It is only on 12/02/2014, the defendant No.1 and 2 called upon the plaintiff and stated that plaintiff should pay to them a further sum of ₹40,00,000/- as second token advance towards sale consideration and which should also be incorporated in the Agreement of Sale and sale transaction shall be completed within 2 months from 12/02/2014 i.e., date of signing of Agreement dated 11/01/2014. It is clearly admitted by the plaintiff that, original Agreement did not reflect payment of ₹40,00,000/- and also the term for completion of sale transaction. It is the clear case of plaintiff, in the circumstances, 2 additional stamp papers were purchased and included in the Agreement and numbered in between as 10A and 10B. The details of payment of ₹40,00,000/- to defendant No.1 and 2 and also time for completion of sale transaction were incorporated in page No.10B. According to the plaintiff, he had paid ₹40,00,000/- to defendant No.1 and 2 as second token advance towards the sale consideration on the date of execution of Agreement on 12/02/2014. After receiving the 20 O.S.No.6604/2014 cheques dated 12/02/2014, defendant No.1 and 2 executed the Agreement of Sale and affixed their signatures on each and every page and handed over the signed/executed Agreement to the plaintiff on 14/02/2014. The plaintiff affixed his signature on 14/02/2014. As per the terms of Agreement of Sale, the plaintiff has to pay balance of ₹30,00,000/- and get the Sale Deed executed in his favour by defendant No.1 and 2. It is clearly admitted by the plaintiff that registration of Sale Deed was agreed to be completed within two months from 12/02/2014, i.e., the date of signing of Agreement.
12. The defendant No.1 and 2 have admitted the execution of Agreement of Sale in favour of plaintiff as per Ex.P.1, but they have denied that Agreement of Sale between the parties was executed on 14/02/2014. Ex.P.1 is dated 11/01/2014. According to defendant No.1 and 2, the plaintiff himself put the date at the place of his signature to suit his convenience by materially altering the date and falsely claiming that the date of Agreement is on 14/02/2014, but in reality the Agreement was on 14/01/2014 and in the Agreement, both the parties have agreed that time is the essence of contract. The plaintiff shall perform his part of contract/obligation within two months. The intention of the parties is very clear from the sale transaction that, sale transaction to be completed within two months from 11/01/2014. According to defendant No.1 and 2, Agreement of Sale was entered on 11/01/2014 and not on 12/02/2014 has contended by the plaintiff. The perusal of 21 O.S.No.6604/2014 Ex.P.1, it discloses that it is dated 11/01/2014. But, in the last page, the plaintiff has mentioned date as 14/02/2014 near his signature. The plaintiff himself has pleaded that typed Agreement was handed over on 11/1/2014 to defendant No.1 and 2 and defendant No.1 and 2 executed the Agreement of Sale only on 12/02/2014.
13. The plaintiff in support of his case examined himself as PW-1. PW-1 in his affidavit evidence has reiterated the averments of plaint. PW-1 in the cross-examination has stated that defendant No.1 and 2 signed Agreement of Sale on 12 th of February. PW-1 has admitted that Agreement of Sale was prepared on January 11th. It is clearly admitted by PW-1 that in the month of January 11th, no advance money was paid to defendant No.1 and 2. PW-1 further in the cross-examination admitted that, he had paid ₹40,00,000/- by way of cheque to defendant on 12/02/2014 by mentioning present dates on the cheques. It is clearly admitted by PW.1 that, defendant No.1 and 2 got encashed these cheques only on 07/04/2014. Further, it is also clearly admitted by PW.1 that, defendant No.2 signed the Agreement of Sale on 14/02/2014. As per the explanation offered by PW.1, since defendant No.2 on 12/02/2014 was not available, he had signed the Agreement of Sale on 14/02/2014. This explanation offered by the plaintiff is not proper regarding execution of Ex.P.1 Agreement of Sale by defendant No.1 and 2. So from the evidence of PW.1, he is not clear as to the date of execution of Agreement of Sale by 22 O.S.No.6604/2014 defendant No.1 and 2. From the case of plaintiff itself defendant No.2 has not signed Ex.P.1 along with defendant No.1. It is interesting to note that, plaintiff nowhere mentioned in his pleadings about defendant No.2 signing the Agreement of Sale on 14/02/2014. Further, PW.1 clearly admitted that, he signed the Agreement of Sale Ex.P.1 on 14/02/2014 along with defendant No.2. This admission goes to show that, he had not signed the Agreement of Sale when defendant No.1 signed Ex.P.1 and when it came into existence. PW.1 admitted the presence of witnesses, himself and defendant No.1 at the time of defendant No.1 signing the Agreement of Sale on 12/02/2014. The plaintiff in support of his case has not examined any of the independent witnesses. The evidence of PW.1 is not supported by independent witnesses.
14. It is clearly admitted by PW.1 that, in Ex.P.1 page No.10A and 10B were subsequently included/inserted. It is clearly admitted by PW.1 that, even though Agreement of Sale was prepared on 11th of January, due to the quarrel occurred in the family of defendant No.1 and 2 there was a delay of one month for signing of Agreement of Sale. In this regard, the plaintiff has not placed any material. The defendant No.1 and 2 have not admitted the quarrel occurring between them and also denied that they entered into Agreement of Sale on 12/02/2014 or on 14/12/2014. It is also admitted by PW.1 that, as the vendor of defendant No.1 and other children are not parties to the Agreement of Sale. PW.1 does not know what was the 23 O.S.No.6604/2014 cause for occurrence of quarrel in the house of defendant No.1 and 2. Hence, the case of plaintiff that, due to the quarrel occurred in the family of defendant No.1 and 2 there was a delay in entering the Agreement of Sale and execution of Agreement of Sale cannot be accepted.
15. PW.1 denied the suggestion that he ought to have within two months from 11/01/2014 completed the sale transaction by paying balance sale consideration and by getting the Sale Deed. But, PW.1 clearly admitted that, within two months from 12/02/2014 Sale Deed should have been got executed in his favour. It is suggested to PW.1 that, he has not produced any document to prove that he had balance sale consideration for getting the Sale Deed registered within two months from 12/02/2014. PW.1 in this regard has not produced any document except Ex.P.6. As per Ex.P.6, amount of ₹30,00,000/- was deposited on 16/05/2014. The plaintiff in this regard failed to establish that he had the balance sale consideration from the date of execution of Ex.P.1 till 14/02/2014 or on 20/03/2014, on 26/03/2014 and on 08/04/2014. The plaintiff has not produced any document to prove that he had the balance sale consideration on all these dates. It is relevant to note that, PW.1 in the cross-examination stated that he had the documents in this regard. It is clearly admitted by PW.1 that Ex.P.6 came into existence after 2 months from 12/02/2014 and deposit was made after two months from 12/02/2014. As already discussed, except Ex.P.6 24 O.S.No.6604/2014 the plaintiff has not placed any material to prove that he had the balance sale consideration of ₹30,00,000/- ready with him from the date of Agreement of Sale till 08/04/2014. The plaintiff has to establish that he had the balance sale consideration within two months from 12/02/2014. But, the plaintiff has not placed any such document to prove his readiness and willingness to pay the remaining balance sale consideration of ₹30,00,000/-. The plaintiff ought to have produced such documents when especially defendant No.1 and 2 denied the capacity of plaintiff to pay the remaining balance sale consideration. From Ex.P.6, it is very much clear that plaintiff had no source to prove the balance sale consideration ready with him during these relevant point of time.
16. It is also the case of defendant No.1 and 2 that ₹40,00,000/- paid by the plaintiff by way of cheques on 12/02/2014 was not encashed till 07/04/2014. PW.1 denied the suggestion since he had no amount in his bank as such, as per his instructions defendant No.1 and 2 did not present the cheques for encashment. Though, PW.1 has denied the suggestion and contended that he had the amount in his bank account, but in order to rebut the said contention of defendant No.1 and 2 in this regard and also to overcome the suggestion, the plaintiff has not come forward to produce any documents in this regard. The plaintiff has not placed any documents such as passbook etc., to prove that he had ₹40,00,000/- in his credit between 12/02/2014 to 07/04/2014. The plaintiff has not 25 O.S.No.6604/2014 examined any other witnesses to substantiate his case. Admittedly, the plaintiff has admitted that, he is in good cordial terms with one Nagesh, but he has not come forward to examine said Nagesh in support of his case. It is clearly admitted by PW.1 that on 23/04/2014, defendant No.1 and 2 had issued notice of cancellation of Agreement of Sale. It is also admitted by PW.1 after the issue of notice on 23/04/2014, the defendant No.1 and 2 had sold suit schedule property in favour of defendant No.3.
17. It was suggested to PW.1 that, he had not brought to the notice of defendant No.1 and 2 regarding the insertion of page No.10(A) and page No.10(B) to Ex.P.1 Agreement of Sale. The plaintiff has not adduced any cogent evidence to establish that page No.10(A) and page No.10(B) to Ex.P.1 Agreement of Sale were inserted with the consent of defendant No.1 and 2.
18. It is also admitted by PW.1 that, in the Agreement there is no mention that advance amount has to be given for the second time. It is admitted by PW.1, defendant No.1 and 2 have not sought second advance in writing. PW.1 also admitted, in Ex.P.1 page No.10(A) and 10(B) were inserted. It is also clearly admitted by PW.1 that on 12/02/2014 page No.10(A) and 10(B) were inserted. This admission goes to show that, defendant No.1 and 2 had not given any consent for insertion of these page No.10(A) and 10(B) to Ex.P.1 on 11/01/2014, when the 26 O.S.No.6604/2014 draft of the Agreement of Sale was handed over to defendant No.1 and 2, as per the case of plaintiff. PW-1 has stated in the cross- examination that due to payment of advance amount in the second time page No.10(A) and 10(B) were inserted to Ex.P.1. It is very much clear that cheques issued by plaintiff on 12/02/2015 for ₹40,00,000./- were not encashed till 07/04/2014. Hence, the insertion of page No.10(A) and 10(B) to Ex.P.1 becomes doubtful.
19. Ex.P.21 (a) legal notice issued by the plaintiff to defendant No.1 and 2 for the first time on 10/04/2014. In Ex.P.21(a) at page No.2, the plaintiff has mentioned that defendant No.1 and 2 had agreed to execute Sale Deed on 20/03/2014, 26/03/2014 and 08/04/2014. But, in this regard, the plaintiff has no documents. It is only on the basis of oral evidence, the plaintiff is stating that on these dates, defendant No.1 and 2 had agreed to execute Sale Deed. It is interesting to note that, the plaintiff has admitted that for registration of Sale Deed before the Sub-Registrar, the mandatory requirements of documents required to be obtained and produced for completing the registration formalities. But, PW.1 admitted that, he had not obtained pay order for payment of stamp duty and for bearing registration charges. It is also clearly admitted by PW.1 that, he had not arranged balance sale consideration for payment to defendant No.1 and 2 at that time. It is also stated by PW.1 that, he had also carried Sale Deed to the Office of Sub-Registrar and he had also produced the said Sale Deed to 27 O.S.No.6604/2014 the court. But, nowhere the plaintiff has produced such Sale Deed to substantiate his stand. It is suggested to PW.1 that on 20/03/2014, 26/03/2014 and on 08/04/2014, he was not possessing any amount and balance sale consideration. PW.1 has denied the suggestion. But, plaintiff in this regard has not produced any document to establish that he had the balance sale consideration ready with him on all these dates. The plaintiff except producing Ex.P.6 in this regard, has not produced any documentary proof. When the plaintiff has not gone to the Office of Sub-Registrar without possessing necessary balance amount, stamp papers, stamp duty and registration fee etc., the contention of plaintiff that defendant No.1 and 2 had told him that they would execute Sale Deed on 20/03/2014, 26/03/2014 and on 08/04/2014 is not possible to believe.
20. PW.1 also admitted the sale of suit schedule property by defendant No.1 and 2 in favour of defendant No.3, after lapse of two months on 05/06/2014. The say of plaintiff that time limit for completion of sale transaction commenced from 12.02.2014 cannot be accepted. The plaintiff in this regard is not clear in his stand. The plaintiff himself has admitted that defendant No.2 signed the Agreement of Sale on different dates. The plaintiff in this case is not clear as to when exactly Ex.P.1 was executed by defendant No.1 and 2.
28 O.S.No.6604/201421. PW.1 further in the cross-examination admitted that. on Ex.P.1 near the signatures of defendant No.1 and 2 dates are not written. But, in Ex.P.1 by the side of signature of plaintiff date of 14/02/2014 is mentioned. It is also admitted by PW.1 that, defendant No.1 signed Ex.P.1 on 12/02/2014 and defendant No.2 signed Ex.P.1 on 14/02/2014. This admission of PW-1, it is very much clear that exact date of execution of Ex.P.1 itself is very doubtful in the case. Further more, there is no recital in Ex.P.1 that defendant No.1 signed Agreement of Sale on 12/02/2014 and defendant No.2 signed Agreement of Sale on 14/02/2014. It is admitted by PW.1 that, original of Ex.P.1 was in his possession and it was retained by him. During the course of cross-examination it was suggested to PW.1 that, since original Agreement of Sale was in his possession, he had put the date of 14/02/2014 near his signature on page No.13. No doubt, PW.1 has denied the said suggestion. But, the plaintiff has not examined the witnesses Nagesh and Ganesh, who had signed Ex.P.1 as witnesses. The plaintiff should have examined these independent witnesses in order to overcome the defence taken by defendant No.1 and 2 and also to establish that Ex.P.1 is not materially altered by him and defendant No.1 executed this document on 12/02/2014 and defendant No.2 on 14/02/2014. PW.1 in the cross-examination admitted that witness to Ex.P.1, by name Sri.Nagesh is none other than his own brother-in-law. Due to non-examination of independent witnesses by the plaintiff, the case of plaintiff is not believable and not probable.
29 O.S.No.6604/201422. PW.1 further in the cross-examination also admitted that, Ex.P.3 is a reply sent by defendant No.1 and 2 to the legal notice Ex.P.2. It is admitted by PW.1 that defendant No.1 and 2 in their reply notice had stated that Agreement of Sale was entered on 11/01/2014. It is also stated by defendant No.1 and 2 in the Ex.P.3 reply notice that plaintiff ought to have paid the remaining balance consideration of ₹30,00,000/- within time limit. In this case, the plaintiff has not paid the remaining balance sale consideration of ₹30,00,000/- within two months. It is admitted by PW.1 that, he has no document in writing that defendant No.1 and 2 had agreed to execute the Sale Deed on 20/03/2014, 26/03/2014 and 08/04/2014 and he has also agreed that, he had not sent draft Sale Deed to defendant No.1 and 2 along with Ex.P.2 legal notice. There is no evidence to prove that on all these three days, the plaintiff had been to the Office of Sub-Registrar for the purpose of getting Sale Deed from defendant No.1 and 2, except oral evidence. Hence, the contention of plaintiff that, he was ready to purchase the suit schedule property and he was present along with the Sale Deed on all the above three days becomes doubtful, because the plaintiff was not possessing the balance sale consideration, Sale Deed, registration fee and required stamp duty etc. Further, the plaintiff had not purchased demand draft for the purpose of payment of registration fee. In the absence of all these, the contention of plaintiff that he was ready and willing to perform his part of the contract also becomes doubtful and cannot be accepted. Further more, the plaintiff has not placed 30 O.S.No.6604/2014 any documents to prove that he had amount of ₹37- 38 lakh ready with him as on 20/03/2015. The plaintiff has also not produced draft of Sale Deed got prepared by him in order to establish that he was always ready and willing to get the Sale Deed as contended in his cross-examination. The oral contention of plaintiff that he had also got prepared draft Sale Deed is not believable, because the plaintiff has not produced such draft Sale Deed.
23. PW-1 has no document to prove that he had handed over typed Agreement of Sale to defendant No.1 and 2 on 11/01/2014. Further, the plaintiff has not issued any notice to defendant No.1 and 2 for not returning signed Agreement of Sale to him. The plaintiff has also no document to prove that defendant No.1 and 2 had demanded him to pay ₹40,00,000/-. It is also clearly admitted by PW.1 in the cross-examination that, there is no recital in the Agreement of Sale that defendant No.1 and 2 had signed Ex.P.1 Agreement of Sale on 14/02/2014. The plaintiff has also not questioned defendant No.1 and 2 as to why they did not present the cheques for encashment, which were issued on 12/02/2014. Further, the plaintiff has not issued any notice to defendant No.1 and 2, calling upon them to be present in the Office of Sub-Registrar and execute the Sale Deed.
24. The defendant No.2 in order to disprove the case of plaintiff examined as DW.1. DW.1 in his affidavit evidence has 31 O.S.No.6604/2014 reiterated the averments of their written statement and their defence. DW.1 has specifically stated that Agreement of Sale is dated 11/01/2014. The plaintiff has put the signature to Agreement of Sale to suit his convenience by materially altering the date and falsely claiming that date of Agreement is on 14/02/2014. DW.1 also has deposed that, both the parties have agreed that time is the essence of contract. According to DW.1, the plaintiff shall perform his part of obligation within two months. The transaction was to be completed within two months from 11/01/2014 as they were badly in need of money. DW-1 has clearly denied the contention of plaintiff that Agreement was executed on 14/02/2014. According to DW-1, the plaintiff on 11/01/2014 issued post dated cheques by pleading that he had no funds as on 11/04/2014 and requested them to not to present the cheques for encashment.
25. Though, DW-1 is cross-examined by the plaintiff in length to prove that he was/is always ready and willing to perform his part of contract, but DW.1 has not admitted the readiness and willingness of plaintiff. In this case, defendant No.1 and 2 have not denied receiving advance amount from the plaintiff, but they have denied the date of execution of Agreement of Sale. The defendant No.1 and 2 have denied the readiness and willingness of plaintiff to perform his part of obligation under the Agreement of Sale. In the cross- examination of DW.1, it is suggested to him that on 11/01/2014, defendant No.1 and 2 have not agreed to execute Agreement of 32 O.S.No.6604/2014 Sale, on the other hand, they had demanded payment of ₹40,00,000/- from the plaintiff. It is an admitted fact that, cheques issued by the plaintiff for ₹40,00,000/- were encashed by defendant No.1 and 2 on 07/04/2014. DW-1 specifically stated that, at the request of plaintiff they did not present the cheques for encashment. As already discussed, the plaintiff has not taken any steps against defendant No.1 and 2 for not submitting the cheques for encashment till 07/04/2014. The plaintiff fails to elicit from the mouth of DW-1 that performance of the contract is not to be done within two months and there were no Agreement in this regard between them. DW-1 has denied the suggestion that, there was no condition stipulated that the Agreement of Sale has to be performed within two months from the date of execution of Agreement of Sale. DW.1 also denied the suggestion that, time limit for the performance of contract was stipulated for 2 months from 12/02/2014. DW.1 also denied the suggestion that, they deliberately not mentioned the date along with their signatures on the Agreement of Sale. The plaintiff also failed to elicit that defendant No.1 and 2 have not signed on 11/01/2014 to the Agreement of Sale. DW.1 also denied the suggestion that, they had signed Ex.P.1 by receiving second advance amount on 12/02/2014. It is suggested to DW.1 that, his mother signed Ex.P.1 on 12/02/2014 in the Titan Showroom. DW.1 has denied the said suggestion. The plaintiff in this regard has not examined the witnesses, who were present in the Titan Showroom, when the mother of DW.1 signed Ex.P.1 on 12/02/2014. So from this suggestion, it is 33 O.S.No.6604/2014 clear that, defendant No.2 has not signed Ex.P.1 on 12/02/2014. DW.1 also denied the suggestion that, after collecting the cheques on 12/02/2014, he had signed Ex. P.1 in the Titan Showroom. It is the case of plaintiff that, Ex.P.1 really came into existence from 14/02/2014. DW.1 has not admitted that Ex.P.1 really came into existence from 14/02/2014. The plaintiff in this case is not clear in his stand regarding the date of execution of Ex.P.1 by defendant No.1 and 2.
26. The defendant No.1 and 2 have examined one of the witnesses to Ex.P.1 as DW.3. DW.3 in his evidence has deposed that, he knows the plaintiff since last 30 years and plaintiff is his brother-in-law and defendant No.1 and 2 are his mother and brother. This witness has specifically stated that Ex.P.1 was entered on 11/01/2014. This witness has stated that, he was present when the Agreement was entered between the parties. It is relevant to note that, this witness is one of the witnesses to Ex.P.1 Agreement of Sale dated 11/01/2014. According to this witness, the plaintiff had agreed to pay balance sale consideration of ₹30,00,000/- within two months from the date of Agreement on 11/01/2014. This witness denied that, Agreement of Sale entered on 14/02/2014. This witness also stated that, the plaintiff has materially altered the Agreement of Sale by putting his signature to suit his convenience by claiming that Agreement was executed on 14/02/2014. According to this witness, both the parties had agreed that time is the essence of contract. According to this 34 O.S.No.6604/2014 witness, the plaintiff has not performed his part of obligation within two months from the date of Agreement i.e., on 11/01/2014. This witness has identified his signature on Ex.P.1 as Ex.P.1(d).
27. The plaintiff in the cross-examination of DW.3 fails to elicit that draft of Agreement of Sale was handed over on 11/01/2014. DW.3 has stated that it was handed over on 10/01/2014. Further, DW.3 specifically stated that on 11/01/2014, posted cheques were given to defendant No.1 and
2. DW.3 also specifically stated that, on the request of plaintiff, cheques were not presented to the bank for encashment. It is suggested to DW.3 that on 12/02/2014, the plaintiff had amount mentioned in the cheques. In this case, except Ex.P.6, the plaintiff has not placed any material to prove that he had the balance sale consideration or the amount mentioned in the cheques. Ex.P.6 is dated 16/05/2014. The plaintiff also failed to elicit from the mouth of DW.3 that on 14/02/2014, he signed Ex.P.1 after his mother and brother signed the Agreement of Sale. But, DW.3 has specifically stated that, he had signed Ex.P.1 on 11/01/2014 itself. DW.3 denied the suggestion that, for the income tax purposes, cheques were presented on 7/04/2014 by defendant No.1 and 2.
28. DW.3 also denied the suggestion that, there were differences in their family with regard to sharing of sale consideration amongst them. DW.3 also denied the suggestion 35 O.S.No.6604/2014 that, for the said differences in their family, the performance of Agreement of Sale dated 11/01/2014 was not done in time. On the other hand, DW.3 specifically stated that, because of the request and difficulty expressed by the plaintiff, the cheques could not be encashed by them.
29. The Hon'ble Supreme Court in the decision reported in (2023) 3 SCC 714 Desh Raj & Ors v. Rohtash Singh has held that defence under Section 55 of Contract Act is valid against anyone who is seeking the relief of specific performance. The courts, while exercising discretion in suits specific performance, should bear in mind that when the parties prescribed time/period, for taking certain steps or for completion of the transaction, that must have some significance and therefore time/period prescribed cannot be ignored. The courts will apply greater scrutiny and strictness when considering whether the purchaser was "ready and willing" to perform his part of the contract. Every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring the time limits stipulated in the agreement. The fact that limitation is 3 years does not mean that a purchaser can wait for 1 or 2 years to file a suit and obtain specific performance.
30. The Hon'ble Supreme Court in the decision reported in (1996) 4 SCC 526 has held that there is a distinction between readiness to perform the contract and willingness to perform the 36 O.S.No.6604/2014 contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft Sale Deed to the defendant within 7 days of the execution of the agreement, i.e., by 27/02/1975. The draft of Sale Deed was not returned after being duly approved by the petitioner. The factum of readiness and willingness to perform plaintiffs part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready nor had the capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bide for the time which disentitles him as time is of the essence of the contract.
31. The Hon'ble Supreme Court in the decision reported in (2011) 1 SCC 429 has held that the words ready and willing imply that the person was prepared to carry out the terms of the 37 O.S.No.6604/2014 contract. The distinction between readiness and willingness is that the former refers to Financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of execution till the date of decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract.
32. Section 16(c) of the Specific Relief Act, 1963 mandates "readiness and willingness" on the part of the plaintiff and it is a condition precedent for obtaining relief for grant of 38 O.S.No.6604/2014 specific performance, the plaintiff must allege and prove a continuous readiness and willingness to perform the contract on his part from the date of the contract. The onus is on the plaintiff. The readiness and willingness of the plaintiff cannot be treated as a straitjacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention conduct of the party concerned. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16 (c) of the Specific Relief Act and when there is non- compliance with this statutory mandate, the suit is not bound to grant specific performance in his left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established prove to the relevant points of time. Readiness and willingness to perform the part of the contract has to be determined/ascertain from the conduct of the parties.
33. The Hon'ble High Court in the decision reported in ILR 2014 KAR 233 has held that the evidence on record shows that a material alteration is made in a deed, after its execution, without the consent of the party liable under it, the deed is rendered void from the time of the alteration so as to prevent the person who has made or authorised the alteration from putting the deed in the suit to enforce against party. The basic principle behind Section 16(c ) read with explanation (ii) of the Specific Relief Act is that any person seeking benefit of the suit performance of contract must manifest that his conduct has 39 O.S.No.6604/2014 been blemishless throughout entitling him to the specific relief. Readiness and willingness refer to the state of mind and conduct of the purchaser, as also his capacity and preparedness on the other.
34. It is clear from the above referred decisions of the Hon'ble Supreme Court and Hon'ble High Court that readiness refers to the financial capacity and willingness refers to the conduct of the plaintiff wanting the performance. The readiness means the capacity of the plaintiff to perform the contract which would include the financial position to pay the purchase price. To ascertain willingness the conduct of the plaintiff has to be properly scrutinised. In evaluating whether the plaintiff was ready and willing to perform his part of the obligation under the contract, it is not only necessary to view whether he had the financial capacity to pay the balance consideration, but also assess his conduct throughout the transaction. The readiness of the plaintiff to perform his obligation refers to whether he was financially capable of paying the balance consideration.
35. The learned counsel for the plaintiff has relied on the following rulings of the Hon'ble Supreme Court and Hon'ble High Court;
1. (2003) 5 SCC 705; Oil and Natural Gas Corporation Ltd. Vs. Saw Pipes Ltd.
2. AIR 1977 SC 1005; Govind Prasad Chaturvedi Vs. Hari Dutt Shastri and another.
40 O.S.No.6604/20143. (1997) 3 SCC 1; K.S.Vidyanadam and others Vs. Vairavan.
4. AIR 1967 SCC 868; Gomathinayagam Pillai and others Vs. Palaniswami Nadar.
5. ILR 2002 KAR 3017; T.Mohan Vs. Kannammal and another.
6. (1993) 1 SCC 519; Chand Rani (Smt) (Dead) by LRs. Vs. Kamal Rani (Smt) (Dead) by LRs.
36. With great respect to their Lordships, those decisions relied on by the plaintiff is not applicable to the facts and circumstances of the case. In the case on hand, the plaintiff fails to prove that he is/was always ready and willing to perform his part of the contract. In this case, the plaintiff has to establish that he had the balance sale consideration and also the consideration amount of ₹40,00,000/- paid through cheques to defendant No.1 and 2. The plaintiff in this case, except Ex.P.6 has not produced any other document to establish that he had the balance sale consideration from the date of Agreement till time limit fixed for the purpose of the contract. The plaintiff in this case had stated that, he had gone to the Office of Sub- Registrar to get the Sale Deed executed from defendant No.1 and 2 and also called upon them to be present in the Office of Sub-Registrar. It is also the case of plaintiff that, defendant No.1 and 2 themselves have called upon him to be present in the Office of Sub-Registrar to execute the Sale Deed. But on 41 O.S.No.6604/2014 those days, when the plaintiff stated to have gone to the Office of Sub-Registrar, he had no balance sale consideration, he had not brought demand drafts for the payment of stamp duty and registration fee etc. The plaintiff merely going to the Office of Sub-Registrar is not sufficient proof of his readiness and willingness to perform his part of the contract. The plaintiff in this case failed to discharge his obligation of performing the contract within two months. Under these circumstances, the plaintiff fails to prove that, he was and is always ready and willing to perform his part of the contract in pursuance of Agreement of Sale dated 12/14-02-2014. Accordingly, this Recasted Issue No.1 is answered in the negative.
37. Recasted Issue No.2: - It is the case of plaintiff that termination of Agreement of Sale dated 12/14-02-2014 by defendant No.1 and 2 is illegal. The plaintiff in this regard in the plaint has pleaded he was always ready and willing to perform his part of the contract and obligations arising under the Agreement of Sale dated 11/01/2014 executed on 12 /02/2014. The plaintiff admitted the issue of reply notice by defendant No.1 and 2 as per Ex.P.3. The plaintiff also admitted that, in Ex.P.3, defendant No.1 and 2 contended that the Agreement of Sale dated 11/01/2014 was cancelled as the plaintiff had not complied with his obligations arising under the Agreement of Sale by not paying the balance sale consideration of ₹30,00,000/-. According to the plaintiff, the contention of defendant No.1 and 2 that plaintiff was required to pay the 42 O.S.No.6604/2014 balance sale consideration within 09/04/2014 is not correct. According to the plaintiff, the date fixed for completion of sale transaction was 12/04/2014. It is also the case of plaintiff that, he had communicated his readiness and willingness to pay the balance sale consideration well within the time. The defendant No.1 and 2 by falsely asserting that time is the essence of the contract and the plaintiff had failed to perform his obligations purports to have cancelled the Agreement and forfeited the advance amount of ₹50,00,000/- paid by the plaintiff. The plaintiff further contended that, so-called cancellation of Agreement was unilateral and not communicated to the plaintiff. The defendant No.1 and 2 have deliberately avoided to execute the Sale Deed, but by falsely contending that Agreement stands cancelled. As such, the plaintiff is contending that cancellation of Agreement of Sale dated 11/1/2014, executed on 12/02/2014 by defendant No.1 and 2 in their reply notice dated 23/04/2014 is illegal and not binding on the plaintiff.
38. The plaintiff has admitted that defendant No.1 and 2 cancelled the Agreement of Sale by issuing a reply dated 23/04/2014. Hence, the contention of plaintiff that, defendant No.1 and 2 unilaterally cancelling the Agreement of Sale does not arise.
39. Recasted Issue No.1 is answered in the negative. This court has already given a finding that plaintiff was and is not ready and willing to perform his part of the contract in 43 O.S.No.6604/2014 pursuance of the Agreement of Sale. It is held that plaintiff had no balance sale consideration to pay on the date of execution of Agreement or on 11/04/2014. The cheques issued by the plaintiff to defendant No.1 and 2 were encashed on 07/04/2014. As per Ex.P.6, the amount was deposited on 16/05/2014. Prior to 16/05/2014, there is no document to establish that plaintiff had balance sale consideration ready with him. Ex.P.2 notice was issued on 10/04/2014. The defendant No.1 and 2 in their reply as per Ex.P.3 have clearly stated that time is the essence of the contract and defendant No.1 and 2 demanded the balance sale consideration payable by the plaintiff to complete their own commitment. It is also stated that, at the request of plaintiff, defendant No.1 and 2 did not present the cheque for encashment. Since the plaintiff failed to get the Sale Deed within the time limit, as such defendant No.1 and 2 are justified in cancelling the Agreement of Sale. As on the date of issue of Ex.P.2 notice also, the plaintiff had no source to establish that he had balance sale consideration to pay to defendant No.1 and 2. As per Ex.P.6, amount of ₹30,00,000/- was deposited on 16/05/2014. Hence, for the findings given in Recasted Issue No.1, the plaintiff failed to establish that termination of Agreement of Sale by defendant No.1 and 2 is illegal. Hence, this Recasted Issue No.2 is answered in the negative.
40. Issue No.3 and Additional issue No.1: - The defendant No.3 in this case is the purchaser of suit schedule "B" and "C" property from defendant No.1 and 2. The plaintiff in 44 O.S.No.6604/2014 the plaint has pleaded that defendant No.2 is a close associate of defendant No.3 and defendant No.3 is a very prominent person in their community. The plaintiff obtained encumbrance certificate on 04/07/2014, for the purpose of filing the suit, at that time, the plaintiff came to know that defendant No.1 and 2 in collusion and with an intention of creating complications have brought into existence a collusive Sale Deed dated 05/06/2014. The defendant No.1 and 2 in collusion with defendant No.3 sold suit schedule "B" and "C" property in favour of defendant No.3 under the Sale Deed dated 05/06/2014.
41. The defendant No.3 has filed his written statement by contending that, he is a bona fide purchaser for valuable consideration. The defendant No.3 has also adduced evidence in counter to the evidence of plaintiff. The defendant No.3 is examined as DW.2. The defendant No.3 in his written statement has stated that he was not aware of sale transaction between plaintiff and defendant No.1 and 2. It is also pleaded by defendant No.3 that, he was not aware of any of the payment of advance paid by plaintiff to defendant No.1 and 2 and plaintiff entering into an Agreement of Sale with defendant No.1 and 2. The defendant No.3 has specifically stated that, he is a bona fide purchaser for valuable consideration. Admittedly, defendant No.3 purchased the property from defendant No.1 and 2, the property which was supposed to have sold to the plaintiff for a sale consideration of ₹80,00,000/- under the registered Sale Deed dated 05/06/2014. The possession of suit 45 O.S.No.6604/2014 schedule "B" and "C" property is also delivered to defendant No.3. This defendant No.3 has also pleaded that, he had also leased out the suit schedule property in question.
42. PW.1 in the cross-examination admitted that after issue of Ex.P3 reply notice by the defendant No.1 and 2 he had not issued any paper publication by publishing that he had entered into an Agreement of Sale with defendant No.1 and 2. It is also admitted by PW.1 that from the date of the Agreement of Sale till execution of Sale Deed in favour of defendant No.3 there would be no entry regarding plaintiff entering into an Agreement of Sale with defendant No.1 and 2 and his sale transaction finds no place in the encumbrance certificate. It is also admitted by PW.1 that defendant No.3 also purchased the suit schedule "B" and "C" property from defendant No.1 and 2 for the same sale consideration of ₹80,00,000/- which was agreed to be paid by the plaintiff to defendant No.1 and 2 under the Agreement of Sale. So from this admission, it is clear that defendant No.3 has not purchased the suit schedule "B" and "C" property for lesser sale consideration. Further, it is also admitted by PW.1 that, till purchase of property by defendant No.3 there was no suit was lodged and no suit was pending. From this admission, it is clear that as on the date of purchasing of property by defendant No.3, there was no suit pending in respect of suit schedule property and there was no entry in the encumbrance certificate regarding the plaintiff entering into an Agreement of Sale with defendant No.1 and 2. The defendant 46 O.S.No.6604/2014 No.3 admittedly purchased the suit property for the same market value existing on the date of his purchase. It is also admitted by PW.1 that, defendant No.3 after purchase of suit property had also availed loan by mortgaging it. It is also admitted by the plaintiff that defendant No.3 has also leased the property after its purchase. PW.1 has admitted that even after 20/03/2014, 26/03/2014 and 08/04/2014, he had not published any paper publication by informing the general public that he had entered into an Agreement of Sale with defendant No.1 and
2.
43. The defendant No.2 is examined as DW.1 and he has deposed that, since they were in dire need of funds, but the plaintiff did not make any attempt to pay the amount and get the Sale Deed registered, as such, they communicated to the plaintiff their intention to sell the property. Further, he has stated that since they had no other option but to sell the property as plaintiff pleaded his inability to pay the balance sale consideration immediately within the agreed period. So, they sold the property to defendant No.3 to meet their dire consequences of funds.
44. The defendant No.3 is examined as DW.2. DW.2 in his affidavit evidence has reiterated his written statement averments. He has deposed that he is a bonafide purchaser for valuable consideration. This defendant denied that, he was aware of transaction between plaintiff and defendant No.1 and 47 O.S.No.6604/2014 2 with regard to the entering into Agreement of Sale. The digital copy of Sale Deed dated 05/06/2014 is produced as per Ex.D.5.
45. In the cross-examination of DW.3, the plaintiff fails to elicit that he is not a bonafide purchaser for valuable consideration. The plaintiff fails to elicit that defendant No.3 was well aware of Agreement of Sale entered between plaintiff and defendant No.1 and 2 with regard to alienation of suit schedule "B" and "C" property.
46. DW.3 Jayanthi Srinagesh is the brother-in-law of plaintiff himself. This witness also in his evidence has stated that, since the plaintiff failed to perform his part of the contract/obligations within the stipulated period, as such defendant No.1 and 2 to meet their financial dire need, sold the suit property in favour of defendant No.3 by cancelling Agreement of Sale of plaintiff. According to this witness, time is the essence of the contract of plaintiff and defendant No.1 and
2. DW.3 denied the suggestion that the Sale Deed executed in his favour is only a namesake and it is a nominal Sale Deed. In this case, defendant No.1 and 2 have not denied the receipt of amount of ₹80,00,000/- from defendant No.3 and also execution of Sale Deed in his favour. Under these circumstances, the contention of plaintiff that Sale Deed of defendant No.3 is only a nominal is not acceptable. Since the plaintiff failed to establish that he had the balance sale consideration for payment to defendant No.1 and 2 and failed to 48 O.S.No.6604/2014 perform his part of the obligation. The defendant No.1 and 2 sold suit schedule "B" and "C" property in favour of defendant No.3. The evidence adduced by defendant No.1 and 2 and also the evidence of DW.3, there is a probability in their evidence. The defendant No.3 after the purchase also availed loan and in possession of said property. There is no evidence adduced by the plaintiff that defendant No.3 was aware of Agreement of Sale of the plaintiff and also the sale transaction of the plaintiff with defendant No.1 and 2. The effort to made by plaintiff that defendant No.3 was aware of sale transaction of the plaintiff with defendant No.1 and 2 is not materialised and plaintiff failed to establish that he had approached this defendant No.3 to communicate and to make use of good offices of defendant No.3 to arrive at a settlement between plaintiff and defendant No.1 and 2. Except oral evidence, the plaintiff in this regard has not placed any documentary proof and acceptable evidence. Hence, the plaintiff fails to prove that defendant No.3 had a notice of plaintiff's Agreement of Sale prior to purchase of suit schedule "B" and "C" property from defendant No.1 and 2. The evidence adduced by DW.3 and other material on record clearly establishes that he had no notice of Agreement of Sale of plaintiff with defendant No.1 and 2.
47. The Hon'ble High Court in the decision reported in 2023 ( 4 ) AKR 200 V. Anjanappa v. Thammanna has held that when the vendee had failed to prove his readiness and willingness to perform his part of contract, plea taken by him 49 O.S.No.6604/2014 that third parties who not a bona fide purchasers value, was not of much significance. Relief of Specific performance cannot be granted.
48. In this case, the plaintiff has not produced the Sale Deed got prepared on 20/03/2014, 26/03/2014 and 08/04/2014 nor he has produced the material to substantiate his contention that he was having cash of ₹30,00,000/- being the balance sale consideration amount to be paid to defendant No.1 and 2. The plaintiff has not produced the encumbrance certificate which was obtained by him before filing of the suit and also regarding coming to the knowledge of execution of Sale Deed in favour of defendant No.3 by defendant No.1 and 2. Hence, the plaintiff fails to prove that defendant No.3 is not a bonafide purchaser for value. On the other hand, defendant No.3 is able to establish that he is a bonafide purchaser for valuable consideration. Hence, the plaintiff who has failed to prove Recasted Issue No.1 and 2 cannot contend that defendant No.3 is not a bonafide purchaser for valuable consideration and Sale Deed executed in favour of defendant No.3 by defendant No.1 and 2 is not binding on him. Accordingly Issue No.3 is answered in the negative and Additional Issue No.1 is answered in the affirmative.
49. Issue No.4: - The plaintiff has failed to prove Recasted Issue No.1 and 2 and Issue No.3. The defendant No.3 has proved Additional Issue No.1. That for the reason 50 O.S.No.6604/2014 stated and findings given in the above issues, the plaintiff is not entitled for the relief of specific performance of contract for plaint "B" and "C" schedule properties.
50. However, in this case, the plaintiff has not sought for refund of earnest money paid by him to the defendant No.1 and
2. The defendant No.1 and 2 in this case have not denied the execution of Agreement of Sale and also receipt of advance amount from the plaintiff. The defendant No.1 and 2 have disputed the date of execution of Agreement of Sale and also readiness and willingness of the plaintiff. However, defendant No.1 and 2 admitted the receipt of advance amount from the plaintiff as mentioned in the Ex.P.1 Agreement of Sale. But, the plaintiff in this case has not come forward for refund of his earnest/advance amount from defendant No.1 and 2.
51. The Hon'ble Supreme Court in the decision reported in (2023) 3 SCC 714 ( Desh Raj v. Rohtash Singh) has held that under Section 22 of the Specific Relief Act of 1963 which provides that any person suing for the specific performance of the contract for the transfer of property may ask for possession or partition and separate possession of the property in addition to such performance such person may seek any other relief to which is entitled to "including the refund of any earnest money or deposit paid or made by him" case his claim for specific performance is refused. However, sub- section (2 ) thereof puts 51 O.S.No.6604/2014 a caveat that the above-mentioned reliefs shall not be granted by the court unless " it has been specifically claimed".
52. It is further held that the litmus test appears to be that unless a plaintiff specifically seeks the refund of the earnest money at the time of filing of the suit or by way of amendment, no such relief can be granted to him. The prayer clause is a sine qua non for grant of decree of refund of earnest money.
53. Applying this principles to the facts of the case in hand, in the case on hand, the plaintiff has not neither prayed for the relief of refund of earnest money in the prayer column nor he sought for any amendment of the subsequent stages of this case. In the absence of such a prayer, it is difficult to grant refund of earnest money to the plaintiff irrespective of the fact as to whether Section 22(2) of Specific Relief Act is to be construed directory or mandatory in nature.
54. In this case, there is no dispute regarding the receipt of advance amount from the plaintiff by defendant No.1 and 2. But, in this case the plaintiff has not sought for refund of earnest money from defendant No.1 and 2. Hence, plaintiff is not entitled for decree for recovery of money/ recovery of advance amount. Hence, Issue No.4 is answered in the negative.
55. Issue No.5: In view of the above discussions, this court proceed to pass the following:-
52 O.S.No.6604/2014ORDER Suit of the plaintiff is hereby dismissed.
Under the facts and circumstances of the case, the parties are directed to bear their own costs.
(Dictated to the Stenographer Grade-I on computer, typed by her, corrected and then pronounced by me, in the open court, on this the 6th day of January, 2025) (B.DASARATHA) XI ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU CITY.
ANNEXURE List of witnesses examined for plaintiff:
PW.1 : Sri. P.Kumar
List of documents exhibited for plaintiff:
Ex.P.1 : Agreement for Sale dated 11.01.2014
Ex.P.1(a) : Signature of PW-1
Ex.P.1(b) : Signature of Defendant No.1
Ex.P.1(c) : Signature of Defendant No.2
Ex.P.1(d) : Signature of DW-3
Ex.P.2 : Office copy of Notice dated
10.04.2014
Ex.P.3 : Reply Notice dated 23.04.2014
Ex.P.4 : Office copy of Rejoinder Notice dated
07.05.2014
53 O.S.No.6604/2014
Ex.P.5 : Office copy of Notice dated
10.06.2014
Ex.P.6 : Copy of F.D. Receipt
Ex.P.7 : Certified copy of Equitable Mortgage
Deed
Ex.P.8 : Certified copy of Sale Deed dated
05.06.2014
Ex.P.9 to 12 : Postal Receipts
Ex.P.13 to 18: Postal Acknowledgments
Ex.P.19 & 20: Courier Receipts
Ex.P.21 : Unserved Postal Cover
Ex.P.21(a) : Notice therein
Ex.P.22 to 25: Postal Receipts
Ex.P.26 to 32: Postal Acknowledgments
Ex.P.33 to 36: Postal Receipts
Ex.P.37 : Unserved Postal Cover
Ex.P.37(a) : Notice therein
Ex.P.38 : Death Certificate of P.Adisheshaiah
Shetty
Ex.P.39 : Death certificate of P.Sadgunamma
Ex.P.40 : Medical Certificate
Ex.P.41 : Certified copy of Sale Deed dated
15.11.2010
Ex.P.42 : Certified copy of Sale Deed dated
01.08.2013
Ex.P.43 : Paper Publication
Ex.P.44 : Visiting Card of T.A.Sharavana
Ex.P.45 & 46: Copies of Photographs
Ex.C.1 : Original Plaint in O.S.No.1185/2018
Ex.C.2 : Original Affidavit in O.S.No.1185/2018
Ex.C.2(a & b): Signatures on Ex.C.2
Ex.C.3 : Original Compromise Petition in
O.S.No.1185/2018
Ex.C.3(a to e): Signatures on Ex.C.3
Ex.C.4 : Original Endorsement in
O.S.No.1185/2018
Ex.C.4(a to e): Signatures on Ex.C.4
List of witnesses examined for defendants:
54 O.S.No.6604/2014
DW.1 : Sri. Ramachandra Prasad
DW.2 : Sri. T.A.Sharavana
DW.3 : Sri. Jayanthi Srinagesh
List of documents exhibited for defendants:
Ex.D1 : Account Statement
Ex.D.2 : Loan Clearance Certificate
Ex.D.3 : Form-B Property Register Extract
Ex.D.4 : Digital copy of Tax Paid Receipt
Ex.D.5 : Digital copy of Sale Deed dated
05.06.2014
XI ADDL., CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY.
Digitally
signed by
DASARATHA B
DASARATHA
B Date:
2025.01.08
16:22:00
+0530