Bangalore District Court
Smt. P. Mamatha vs Sri K. Esha on 10 March, 2017
Form No.9
(Civil) Title
Sheet for
Judgment
in Suits
z
R.P. 91
PRESENT: SRI S.H.HOSAGOUDAR,
B.Sc.,LL.B.,[Spl]
XXVII Additional City Civil Judge
Dated this the 10th day of March 2017
PLAINTIFF: SMT. P. MAMATHA,
D/o Peddanna,
W/o M. Naveen Kumar,
Aged about 38 years,
R/at No.7, Channakrishnappa
Street, Palace Guttahalli,
Bangalore-560 003.
[By Sri V.Manjunath, Advocate]
/v e r s u s/
DEFENDANT: Sri K. ESHA,
S/o Krishnoji Rao,
Aged about 36 years,
R/at Khatha No.775,
Proiperty No.339,
Manjunath Nagara,
Bagalgunte Village,
Dasarahalli,
Bangalore-560 073.
(By Sri K, Advocate)
Date of institution of the : 8/12/2014
suit
Nature of the suit : For specific performance
of contract
2 O.S.9540/2014
Date of commencement of : 2/12/2015
recording of the evidence
Date on which the : 10/3/2017
Judgment was pronounced.
: Year/s Month/s Day/s
Total duration
2 3 2
(S.H. Hosagoudar)
XXVII ACCJ: B'LORE.
Plaintiff has filed this suit against defendant
directing the defendant to execute the registered sale
deed in favour of plaintiff by receiving balance
consideration amount and on failure of the defendant
Court may exercise its power by executing the sale
deed in favour of plaintiff on official capacity and for
Permanent Injunction restraining the defendant from
alienating the suit schedule property in favour of third
parties and cost of the suit.
2. In brief, the plaintiff's case is as under:
That the defendant is the owner of suit schedule
property and he agreed to sell suit schedule property
to the plaintiff for total sale consideration amount of
3 O.S.9540/2014
Rs.40 lakhs. On the date of execution of the sale
agreement dated 17.10.2012, the sale agreement has
been registered in the office of Sub Registrar and as
on the date of execution of the sale agreement,
defendant has received a sum of Rs.25 lakhs as
advance by way of cash and cheque. The remaining
sale consideration amount of Rs.15 lakhs to be paid
by the plaintiff to the defendant at the time of
execution of registered sale deed in his favour.
Defendant agreed to handover possession to the
plaintiff at the time of execution of the registered sale
deed. Plaintiff and defendant agreed to complete the
sale transaction within 11 months from the date of
execution of the sale agreement. Eversince from the
date of execution of the sale agreement, the plaintiff
has been ready and willing to perform her part of the
contract and she has been always ready to pay the
balance sale consideration amount of Rs.15 lakhs, but
inspite of repeated requests and demand made by the
plaintiff, defendant has never come forward to execute
4 O.S.9540/2014
the registered sale deed in favour of plaintiff and same
has been postponed by one or other reasons.
Thereafter, plaintiff got issued legal notice dated
11.11.2014 calling upon the defendant to come and
execute registered sale deed. Inspite of service of said
notice, defendant did not come forward to execute the
registered sale deed but he has sent untenable reply.
Hence this suit.
3. In response to the summons issued by the
Court, defendant appeared through his counsel and
filed written statement. In brief the contents of the
written statement filed by defendant are as under:
The suit of the plaintiff is not maintainable either
on law or on facts. The allegation made in the plaint
are false and plaintiff is put to strict proof of the same.
The averments made in para no.5 and 6 of the plaints
are true. This defendant is ready to abide by terms of
the agreement of sale. The schedule property comes
within the purview of Bruhat Bengaluru Mahanagara
Palike limits.
5 O.S.9540/2014
Bruhat Bengaluru Mahanagara Palike
authorities are not collected betterment charges and
not issuing katha to the defendant. The defendant
shall abide by the terms of agreement of sale and will
execute sale deed in favour of plaintiff immediately
after he obtains katha in his name. On these grounds,
he prays for dismissal of the suit.
4. On the basis of the pleadings of the parties,
the following issues are framed for consideration:
(1) Whether the plaintiff is entitled
for the relief of specific
performance of contract as
sought for?
(2) Whether plaintiff is entitled for
the reliefs as sought for the
suit?
(3) What order or decree?
5. In this case, plaintiff in order to prove her
case she got examined her Power of Attorney as PW.1
and also got examined one witness as PW.2 and
produced in all 11 documents which are marked as
Ex.P1 to Ex.P11 and closed its side of evidence. On
6 O.S.9540/2014
the other hand defendant has not adduced any
evidence.
6. Heard arguments for plaintiff and perused
entire records of the case. During the course of
argument, defendant and his counsel were absent and
not addressed any argument. Hence taken as no
arguments for defendant.
7. My findings on the above issues are as
under:
Issue No. 1) ............ In the affirmative;
Issue No. 2) ............ In the affirmative;
Issue No. 3) ............ As per final order;
for the following:
8. ISSUE NO.1 AND 2: Now I will consider
both the issues together for the sake of convenience
and brevity.
9. Plaintiff filed this suit against defendant for
the relief of specific performance of contract directing
the defendant to execute the sale deed in terms of
7 O.S.9540/2014
agreement of sale dated 17.10.2012. In this case there
is no dispute with regard to execution of agreement of
sale dated 17.10.2012 by the defendant in favour of
plaintiff. It is an admitted fact that defendant is the
owner of suit schedule property. It is also admitted
fact that defendant has agreed to sell suit schedule
property in favour of plaintiff for total sale
consideration amount of Rs.40 lakhs.
10. It is also admitted fact that said agreement
of sale is registered before Sub Registrar. It is also
admitted fact that as on the date of execution of the
sale deed, plaintiff has paid advance amount of Rs.25
lakhs to the defendant. It is also admitted fact that
plaintiff has paid amount of Rs.20 lakhs by way of
cash and Rs.5 lakhs by way of DD. Hence in this case
there is no dispute between the parties with regard to
the execution of agreement of sale as per Ex.P2.
Hence Ex.P2 is a genuine document. PW.1 who is
Power of Attorney holder of plaintiff in his evidence
8 O.S.9540/2014
deposed the same facts. PW.2 is one of the attesting
witness to the agreement of sale i.e., Ex.P2. He speaks
about the execution of agreement of sale by the
defendant in favour of plaintiff. In this case defendant
has not at all cross-examined PWs. 1 and 2. Hence
evidence of PWs. 1 and 2 has remained unchallenged.
Hence I do not find any reasons to disbelieve the
evidence of PWs. 1 and 2. Further in this case
defendant even though has filed written statement but
he has not adduced any evidence in support of his
contention. Hence I draw adverse inference against
defendant.
11. In this case evidence on record clearly
shows that plaintiff was / is always ready and willing
to perform her part of the contract. Further evidence
on record clearly shows that she has always been
ready to pay the balance sale consideration amount of
Rs.15 lakhs to the defendant. In this case plaintiff has
produced copy of the legal notice which is marked as
9 O.S.9540/2014
Ex.P6. It clearly shows that plaintiff got issued legal
notice on 26.11.2014 calling upon the defendant to
come and execute the sale deed by receiving balance
sale consideration amount. Further, postal
acknowledgement i.e., Ex.P4 clearly shows that said
legal notice was duly served upon defendant. But
inspite of service of said notice defendant did not
come forward to execute the said sale deed by
receiving the balance consideration amount. The
evidence on record clearly shows that plaintiff has
been always ready and willing to perform her part of
the contract. But defendant did not come forward to
execute the sale deed by receiving balance sale
consideration amount. Hence evidence on record
clearly shows that defendant has not ready to perform
her part of the obligation. On the other hand, plaintiff
has been always ready and willing to perform her part
of the contract. In this case defendant contended that
suit schedule property comes within the limits of
Bruhat Bengaluru Mahanagara Palike and Bruhat
10 O.S.9540/2014
Bengaluru Mahanagara Palike has not yet issued
katha in his name and immediately after he obtains
the katha he execute the registered sale deed in favour
of plaintiff.
12. In this case plaintiff produced certificate
issued by Bruhat Bengaluru Mahanagara Palike
which is marked as Ex.P10. It clearly shows that
katha of the suit schedule property is standing in the
name of defendant. Hence evidence on record clearly
shows that eventhough katha has been standing in
the name of defendant, he did not come forward to
execute the sale deed in favour of plaintiff by receiving
balance sale consideration amount. Hence defendant
has failed to perform his part of the contract. Ex.P2 is
the genuine document and plaintiff has paid major
sale consideration amount of Rs.25 lakhs and she is
always ready to pay remaining balance sale
consideration amount of Rs.15 lakhs to the defendant.
But defendant himself did not come forward to
11 O.S.9540/2014
execute the sale deed in favour of plaintiff even though
katha has been standing in his name by receiving
balance sale consideration amount. Therefore, plaintiff
is entitled for specific performance of contract as
sought for.
13. It is also important to note that while
granting or refusing specific performance of contract
court has to consider hardship causes to the parties.
In this case, defendant has not placed any evidence
on record to show that if decree of specific
performance is granted, he will be put to hardship. On
the other hand, plaintiff in his evidence clearly stated
that she has paid major sale consideration amount
and she is ready to pay the balance sale consideration
amount and if sale deed is not executed she will be
put to greater hardship. Hence from the evidence on
record it is much clear that if decree of specific
performance of contract is granted, no hardship is
caused to the defendant. On the other hand, if decree
12 O.S.9540/2014
of specific performance of contract is not granted,
plaintiff who has paid major sale consideration
amount will be put to greater hardship. Therefore,
plaintiff is entitled for decree of specific performance
of contract.
14. In this case plaintiff also sought for relief of
Permanent Injunction restraining the defendant from
alienating the suit schedule property in favour of third
parties. The evidence on record clearly shows that
plaintiff is entitled for decree of specific performance
of contract. Ex.P2 is a genuine document. Further
evidence on record shows that defendant is trying to
alienate suit schedule property in favour of third
parties. Therefore, plaintiff who is entitled for decree
of specific performance of contract is also entitled for
the relief of Permanent Injunction restraining the
defendant from alienating the suit schedule property
in favour of any third parties. Hence plaintiff is
entitled for the reliefs as sought for. Plaintiff proved
13 O.S.9540/2014
issues 1 and 2. Accordingly, I answer issues 1 and 2
in the affirmative.
15. ISSUE NO.3: From my above discussions
and reasoning, suit of the plaintiff deserves to be
decreed. In the result, I proceed to pass the following:
The suit of the plaintiff is hereby
decreed with costs.
The plaintiff is entitled for the relief of
specific performance of contract as
sought for.
The defendant is hereby directed to
execute the registered sale deed in
favour of plaintiff by receiving balance
sale consideration amount in respect of
the suit schedule property forthwith.
In case if defendant fails to execute
registered sale deed, the plaintiff is at
liberty to get it done through the agency
of Court.
14 O.S.9540/2014
Further defendant is hereby directed to
handover possession of the suit
schedule property to the plaintiff.
Draw decree accordingly.
***
[Dictated to the Judgment Writer directly on computer, Script corrected, signed and then pronounced by me, in the Open Court on this the 10th day of March 2017.] [S.H. HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 Muthuraya
2. List of witnesses examined on behalf of the Defendant/s:
Nil.
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P 1 Special Power of Attorney Ex.P 2 Original agreement of sale Ex.P2 (a) Signature Ex.P2 (b) Signature of Sunil Ex.P2© Signature of defendant Ex.P 3 Office copy of legal notice Ex.P 4 Postal acknowledgement 15 O.S.9540/2014 Ex.P 5 Postal receipt Ex.P 6 Reply letter Ex.P 7 And Tax assessment extracts Ex.P 8 Ex.P 9 Khata certificate Ex.P 10 Khata certificate Ex.P 11 Tax paid receipt
4. List of the documents marked for the defendants:
Nil.
[S.H. HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.
10/03/2017 D1- VM D2- K For Judgment....
...Judgment pronounced in the Open Court.... (Vide separate detailed judgment) The suit of the plaintiff is hereby decreed with costs.
The plaintiff is entitled for the relief of specific performance of contract as sought for.
The defendant is hereby directed to execute the registered sale deed in favour of plaintiff by receiving balance sale consideration amount in respect of the suit schedule property forthwith. In case if defendant fails to execute registered sale deed, the plaintiff is at liberty to get it done through the agency of Court. Further defendant is hereby directed to handover possession of the suit schedule property to the plaintiff. Draw decree accordingly.
[S.H. HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.18 O.S.9540/2014 19 O.S.9540/2014 20 O.S.9540/2014