Bangalore District Court
K.Sathyamurthy vs K.V.Ranjith Kumar on 7 February, 2020
IN THE COURT OF XXXV ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-36)
DATED ON THIS THE 7th DAY OF FEBRUARY 2020
Present: Sri.Manjunatha.G.A., B.A.L.,L.L.B.,
XXXV Addl.CC & SS Judge, Bengaluru.
O.S.No.7118/2018
Plaintiff : K.Sathyamurthy,
Son of M.Kuppuswamy,
Aged about 49 years,
Residing at No.489,
8th Main, 2nd Cross,
Vijayanagar, Bengaluru-560 040.
(By Sri.G.S.R., Advocate)
-Vs-
Defendants : K.V.Ranjith Kumar,
Son of K.V.Ramanna Naidu,
Aged about 37 years,
No.85, Nagasandra Main Road,
Thyagarajanagar, Bengaluru-560 028.
(By Sri.S.K.M., Advocate)
Date of institution of the suit : 27-09-2018
Nature of the suit : Specific Performance
2
Date of commencement of : 11-3-2019
recording of the evidence
Date on which the judgment : 07-02-2020
was pronounced
Total duration : Years/s Month/s Day/s
01 04 10
(MANJUNATHA.G.A.)
XXXV Addl.City Civil & Sessions
Judge, Bengaluru
JUDGMENT
Plaintiff has filed this suit against defendant for Specific Performance based on a Registered Sale Agreement dated 22-9- 2015 and in the alternative for refund of Rs.1,60,00,000/- (Rupees One Crore Sixty Lakhs) along with interest at the rate of 18% p.a.
2. In brief, case of Plaintiff is as follows:-
Defendant is the owner of suit schedule premises situated at Kumaraswamy Layout, First Stage, Bengaluru having purchased the 3 same under a Registered Sale Deed dated 24-6-2006. Defendant agreed to sell the suit schedule property in favour of plaintiff for a total consideration of Rs.2 crores. On 22-9-2015 they entered into a Registered Sale Agreement. On the said date, plaintiff has paid a sum of Rs.50 lakhs to defendant as advance sale consideration by way of cheque. On 25-9-2015, plaintiff again paid a sum of Rs.50 lakhs by way of cash towards balance sale consideration. Defendant has executed a receipt acknowledging the payment of the said amount on the said date. On 28-10-2015 plaintiff again paid a sum of Rs.50 lakhs by way of cash and defendant has executed necessary receipt. Plaintiff has also paid a sum of Rs.10 lakhs to defendant by way of cheque on 28-11-2015. Under the Registered Sale Agreement dated 22-9-2015, 35 months time was fixed for completion of sale transaction. After completion of 35 months, plaintiff issued a legal notice to defendant on 6-4-2018, calling upon him to execute a Sale Deed. By way of said notice, plaintiff has 4 informed defendant that he is ready with the balance sale consideration of Rs.40 lakhs, but defendant avoided to receive the said legal notice. Therefore, plaintiff issued another notice on 29-8-2018 and the same was received by defendant but he has not replied to the same. Plaintiff got the legal notice published in two Newspapers i.e., The New Indian Express English and Kannada Prabha on 6-4-2018. Despite issuance of notices, defendant has not come forward to execute the Sale Deed. Plaintiff has always been ready and willing to perform his part of the contract. Pleading cause of action at Para No.5 of the plaint, it is prayed to decree the suit.
In the alternative, it is prayed for refund of Rs.1 crore 60 lakhs along with interest at the rate of 18% p.a. in the event of not granting the relief of Specific Performance.
3. Defendant has appeared through his Advocate and filed Written Statement admitting that he is the owner of suit schedule property. Defendant is an Engineer and a Developer. Defendant 5 is the Proprietor of M/s.V.R.Constructions. He has completed various projects in and around Bengaluru. He has built Seva Kuteera in Sri Sri.Ravishankar Ashram. Defendant has also built boundaries in NICE Road. Defendant has built a huge community hall in H.S.R.Layout which is named as 'WHITE HOUSE'. The community hall which is constructed by defendant at H.S.R. Layout required lot of funds. It is a huge community hall. One of the biggest community halls in Bengaluru. Hence, defendant in the year 2015 required around Rs.75 lakhs to complete the construction of the community hall. Defendant had lot of properties. Defendant to raise loan approached plaintiff for a sum of Rs.75 lakhs. Plaintiff agreed to lend only a sum of Rs.60 lakhs. Plaintiff imposed certain conditions for lending a sum of Rs.60 lakhs. Plaintiff got draft of Sale Agreement prepared. Plaintiff insisted defendant to sign the said Agreement. Plaintiff has a collateral security insisted defendant to sign Sale Agreement with respect of suit schedule property. 6 Defendant never had the intention to sell suit property. The market value of suit property is more than Rs.6 crores. The suit property is situated in a main road and defendant is getting rent of Rs.2,50,000/- p.m. Plaintiff with an ulterior motive mentioned the sale consideration as 2 crores, which is lesser than market value. Plaintiff has paid a sum of Rs.50 lakhs on 22-9-2015, on the date of registration of Agreement. Plaintiff has further paid a sum of Rs.10 lakhs on 28-11-2015 and collected the original documents of suit property. On 22-9-2015 itself, a memorandum of understanding was executed between the parties, to evidence that it was only a money transaction. Defendant never agreed to execute the Sale Deed for a sum of Rs.2 crores. He has never received a sum of Rs.50 lakhs on 25-9-2015 and on 28-10-2015 respectively. Defendant has not executed any receipt in favour of plaintiff on 25-9-2015 and on 28-10-2015. Plaintiff with a malafide intention got few signatures of defendant on blank papers. Defendant was in 7 need of money, without any option has signed blank papers. The said documents have been created as receipts. 35 months time was fixed for repayment of loan amount of Rs.60 lakhs and not for completion of sale process. Plaintiff has issued a legal notice on 6-4-2018 is denied. Plaintiff is ready with 40 lakhs to perform his part of contract is denied. Defendant deliberately avoided receiving of notice is denied. Plaintiff further issued a legal notice on 29-8-2018 is denied. The transaction between plaintiff and defendant is not a sale transaction. Hence, question of readiness and willingness by plaintiff does not arise. Plaintiff insisted defendant to pay interest at the rate of 24% p.a. on the loan amount of Rs.60 lakhs in cash, defendant is paying interest amount of Rs.1,20,000/- by way of cash to plaintiff every month without any lapses and default. But, plaintiff persistently insisted defendant to execute the Sale Deed. Defendant refused to execute the Sale Deed. The summons was served on defendant on 25-10-2018. Plaintiff has 8 given paper publication on 11-9-2018 in 'Indian Express' and 'Kannada Prabha' with an intention to defame his status in the society. He has married daughter of Mr.Ravi Belagere who is a popular person in Karnataka. The wife of defendant is working as Journalist in Indian Express. Therefore, defendant has filed O.S.No.8432/2018 against plaintiff for damages. Cause of action pleaded to the suit is denied. Accordingly, it is prayed to dismiss the suit.
4. Based on the said pleadings, the following issues and additional issues are framed:-
1. Whether the plaintiff proves due execution of Sale Agreement executed by defendant on 22-9-
2015 for a sum of Rs.2,00,00,000/-
(Rupees Two Crores) in respect of suit property?
2. Whether the plaintiff proves that in all he has paid a sum of Rs.One Crore Sixty Lakhs to the defendant 9 as pleaded in the plaint?
3. Whether plaintiff proves his readiness and willingness to perform his part of contract?
4. Whether the defendant proves that it was only a money lending transaction for a sum of Rs.60,00,000/- and he never intended to sell the suit property in favour of the plaintiff?
5. Whether the plaintiff is entitled for suit reliefs?
6. What order or decree?
Additional issue
1. Whether in the alternative, the plaintiff is entitled for refund of a sum of Rs.1,60,00,000/- along with interest @ 18% p.a. from the defendant?
5. Plaintiff is examined as P.W.1 and two more witnesses as P.W.2 and P.W.3 and got marked Exs.P.1 to P.15. Defendant is 10 examined as D.W.1 and got marked Ex.D.1.
6. Heard
7. My findings to the above issues are as follows:-
Issue No.1 : In the affirmative
Issue No.2 : In the affirmative
Issue No.3 : In the affirmative
Issue No.4 : In the negative
Issue No.5 : Partly in the affirmative
Issue No.6 : As per final order for the following:-
REASONS
8. Issue Nos.1 to 4 and Additional issue No.1:- Defendant is the owner of suit schedule property is not in dispute. Ex.P.4 is the Registered Sale Deed dated 24-6-2006 in the name of defendant in respect of suit schedule property.
9. Plaintiff has filed this suit against defendant claiming relief 11 of Specific Performance based on a Registered Sale Agreement dated 22-9-2015 which is marked at Ex.P.1. Ex.P.2 is the Encumbrance Certificate. At column No.6, the name of plaintiff is reflected as a purchaser. According to plaintiff, he has paid a sum of Rs.50 lakhs as on the date of Sale Agreement by way of a cheque and a sum of Rs.10 lakhs by way of cheque on 28-11-2015. The same has been admitted by defendant both in the Written Statement and in his evidence. According to plaintiff, he has paid a sum of Rs.50 lakhs to the defendant towards balance sale consideration on 25-09-2015 and defendant has executed receipt. The said receipt is marked at Ex.P.3. According to plaintiff, he has also paid a sum of Rs.50 lakhs by way of cash on 28-10-2015 and defendant has executed a receipt The said receipt is marked at Ex.P.15. According to plaintiff, in all he has paid a sum of Rs.1 crore 60 lakhs to plaintiff towards sale price. The total sale price fixed for completion of sale transaction is Rs.2 crores. He is ready to pay the remaining 12 balance of Rs.40 lakhs. Therefore, according to plaintiff, he has issued a legal notice to defendant on 6-4-2018 and the same is marked at Ex.P.5. The postal cover and postal receipt are marked at Exs.P.6 & P.7. According to plaintiff, he issued a second notice on 29-8-2018 and the same is marked at Ex.P.8. Postal receipt and postal acknowledgment are marked at Ex.P.9 and P.10. According to plaintiff, he also got published the legal notice in 'Kannada Prabha' and 'Indian Express' and the said papers are marked at Exs.P.11 and P.12. According to plaintiff, he is the Managing Director and founder of a Company and to establish payment in favour of defendant has got marked his bank statement of H.S.B.C. Bank at Ex.P.13. Income tax return of plaintiff for the year 2018-19 is marked at Ex.P.14. Therefore, according to plaintiff, he is ready and willing to perform his part of contract. On the refusal of defendant to execute a Regular Sale Deed, he was constrained to file the present suit.
13
10. Defendant has specifically contended that as on the date of Ex.P.1 the Sale Agreement dated 22-9-2015, itself there was a Memorandum of Understanding between them. As per the said Memorandum of Agreement, Ex.P.1 is considered to be executed as a collateral security for the loan obtained by him for a sum of Rs.60 lakhs. The said Memorandum of Understanding is got marked at Ex.D.1. According to defendant, he was never intending to sell the suit property. Even plaintiff was not intending to purchase the suit property. Defendant required a lot of money to complete a community hall at HSR Layout. He approached plaintiff to lend a sum of Rs.75 lakhs. But the plaintiff agreed to pay only a sum of Rs.60 lakhs with a condition to execute Ex.P.1. He never executed Exs.P.3 and P.15 receipts in favour of plaintiff. He never received a sum of Rs.50 lakhs each under Ex.P.3 and Ex.P.15. According to defendant, he had agreed to pay a sum of Rs.60 lakhs along with interest at the rate of 24% p.a.,within 35 months. Exs.P.3 and P.15 14 have been concocted by plaintiff. Plaintiff had obtained few signatures of defendant on blank papers. The said blank papers have been converted as Exs.P.3 and P.15. The one line defence of defendant is that Ex.P.1 is Loan Agreement and not a Sale agreement. Therefore, it is necessary for the Court to give finding on all the issues together.
11. Ex.P.1 is a registered instrument. It has been registered as per the provisions of Law. Defendant had been to the office of Sub- Registrar and executed this document in favour of plaintiff. The photograph of defendant is also appearing on Ex.P.1. In Ex.P.1, it is clearly recited that the total sale consideration is Rs.2 crores. As on the date of Ex.P.1 a sum of Rs.50 lakhs is paid by plaintiff by way of a cheque. Plaintiff agreed to repay the remaining sale consideration of Rs.1 crore 50 lakhs at the time of executing a Registered Sale Deed. It is further recited that sale transaction has to be completed within 35 months. But in one single line defendant says that it is not 15 a Sale Agreement. It is only a Loan Agreement. In the cross- examination, D.W.1 clearly admits his signatures appearing on Ex.P.1. It is true that an Agreement of Sale is not a compulsory Registrable document. But if a document is registered it has presumptive value with regard to execution of the document. It is the case of plaintiff that in pursuance of Ex.P.1 - Sale Agreement, he has paid a sum of Rs.50 lakhs by cash as per Ex.P.3. It is also the case of plaintiff that he has paid a sum of Rs.50 lakhs by way of cash as per Ex.P.15. Defendant is not disputing his signatures on Ex.P.3 and P.15 also. It is the defence of defendant that plaintiff had obtained few of his signatures on blank papers and the said blank papers have been fabricated as per Exs.P.3 and P.15. Defendant admits receipt of Rs.50 lakhs as on the date of Ex.P.1. Because the same is paid through a cheque. He also admits receipt of Rs.10 lakhs from plaintiff on 28-11-2015, because the same is paid by way of cheque. Whatever amount alleged to have been paid by plaintiff 16 by cash is specifically denied by defendant. But there are receipts which are marked at Exs.P.3 and P.15 to establish the payment of Rs.1 crore by way of cash. At page No.9 of the cross-examination P.W.1 admits that defendant has spent crores of rupees for construction of a Community Hall at HSR Layout. P.W.1 further admits that defendant required more money for completion of Community Hall in the year 2015. By emphasizing on this piece of evidence, the Learned Advocate for defendant has argued that the need for defendant to raise loan is established and therefore, Ex.P.1 has to be treated as a Loan document and not as a Sale Agreement, forgetting that Ex.P.1 is a registered instrument. Further, defendant has executed receipts as per Exs.P.3 and P.15. At page No.10 of the cross-examination, P.W.1 admits that he is the Managing Director of the Company as shown in Ex.P.13. P.W.1 has deposed in the last line at page No.10 that during 2014-15 he has withdrawn Rs.1 Crore 70 lakhs in order to pay to defendant. At page No.11, P.W.1 admits 17 that the amount withdrawn as per Ex.P13 is towards salary expenses, office expenses, building civil works and personal expenses. At page No.11, he has stated that amount paid to defendant is not reflected in the income tax returns filed on behalf of the Company. In the next line, he has deposed the same is reflected in his personal income tax returns, which is marked at Ex.P.14. At page No.12, the cross-examination is with regard to Ex.P.14. At page No.12 it is suggested like this:-
"In Ex.P.14, page No.15, the payment of Rs.1 crore 5 lakhs is shown as loan and advances given. It is true to suggest that name of Ranjith shown in Ex.P.14. It is false to suggest that the transaction of Ex.P.14 and suit transactions are different.
In Ex.P.14, it is very clearly reflected that Rs.1 crore 5 lakhs is shown as loan and advance given to defendant. But cleverly it is suggested that the transaction reflected in Ex.P.14 and the suit transaction are different. There is one more transaction between 18 plaintiff and defendant is not pleaded in the Written Statement. The same is not deposed by the very defendant in his affidavit evidence. This goes to show that plaintiff has paid a sum of Rs.1 crore by cash. Added to this the defendant has executed Exs.P.3 and P.15. At Para No.13 of the cross-examination, it is suggested to P.W.1 that defendant has borrowed a sum of Rs.60 lakhs with a promise to repay the same within a period of 35 months and he never agreed to sell the suit schedule property. The said suggestion is denied. It is further suggested that Exs.P.3 and P.15 are created. It is further suggested that a sum of Rs.1 core is not paid to him by cash as per Exs.P.3 and P.15. The said suggestion is also denied. P.W.1 has deposed that on 25-9-2015 he has paid a sum of Rs.50 lakhs by cash at HSR Layout Apartment of defendant. He has further stated that another sum of Rs.50 lakhs was paid by him on 28-10-2015 at parking lot, BDA Complex, HSR Layout. It is repeatedly suggested that the said amount is not paid to defendant. P.W.1 has denied the 19 said suggestion.
12. P.W.2 is one Mr.Kumaresan S/o.Kuppuswamy who is a witness to Exs.P.3 and P.15. He has identified his signature on Exs.P.3 and P.15. He has identified the signature of defendant also. P.W.2 admits in his cross-examination that plaintiff is his brother. He denied a suggestion that his brother never paid a sum of Rs.50 lakhs by cash to defendant at HSR Layout Apartment. He further denied a suggestion that his brother has not paid a sum of Rs.50 lakhs to defendant at parking lot, BDA complex, HSR Layout.
13. One Pandyan S/o.Subramani.P. is examined as P.W.3. He is a witness to both Exs.P.3 and P.15. He has identified the signatures of defendant on Exs.P.3 and P.15. P.W.3 has deposed in the cross-examination that he is a friend of plaintiff for the first 10 years. At page No.5, P.W.3 has deposed like this:-
" I have signed to the document on the date of Sale Agreement. The signatures shown 20 on Ex.P.3(c) and Ex.P.15(c) are signed by me on the date of registered Sale Agreement".
The Learned Advocate for defendant emphasized the attention of the Court on this piece of evidence and has contended that Exs.P.3 and P.15 are fabricated. The same will be considered by the Court while discussing the evidence of defendant. P.W.3 also denied a suggestion that plaintiff has not paid a sum of Rs.50 lakhs at parking lot as per Ex.P.3, BDA complex and at HSR Layout as per Ex.P.15.
14. Defendant is examined as D.W.1. In the first para of his cross-examination he has deposed like this:-
"I admit the signature found on Ex.P.1.
Witness volunteers that it is a loan agreement. I admit the signature of Ex.P.3(A). Witness volunteers that I signed on a blank paper. I admit the signature on Ex.P.15(B). Witness volunteers that I signed on a blank paper. I signed those signatures in the month of September 2015.".21
Defendant is not an ordinary person. He is not a rustic person. He is not a normal person. This is how defendant describes himself at Para No.3 of his Written Statement which reads like this:-
"The defendant is an Engineer and a developer. The defendant is the proprietor of M/s.V.R.Constructions. The defendant has completed various projects in and around Bangalore. The defendant has built Seva Kutteera in Sri Sri Ravishankar Ashram. The defendant has also built boundaries in NICE Road. The defendant has built a huge community hall in H.S.R.Layout. Which is named as 'WHITE HOUSE'".
Further, at Para Nos.16 & 18 of the Written Statement he has pleaded that Mr.Ravi Belagere who is the Editor of 'Hai Bengaluru' is his father-in-law. The defendant has married the daughter of Mr.Ravi Belagere. The wife of defendant is a Journalist in Indian Express. At para No.5 of the Written Statement in the first line he has pleaded that he has lot of properties. This is the status of 22 defendant in the society. Can anyone imagine that such a personality can sign on blank papers?. Defendant forgetting that Ex.P.1 is a registered instrument has stated that he has signed on the blank papers.
15. At para No.12 of the Written Statement defendant has pleaded like this:-
"It is further submitted that the plaintiff insisted the defendant to pay interest @ 24% P.A on the said loan amount of Rs.60,00,000/- in cash. The defendant is paying the interest amount of Rs.1,20,000/- by way of cash to plaintiff every month without any lapses and default". (Underlined by the Court) But defendant has not produced any material to establish this fact before the Court. Had the defendant established this fact before the Court, the Court could have believed that plaintiff had lent only a sum of Rs.60 lakhs. Because, defendant is very specific that he was paying a sum of Rs.1,20,000/- by way of cash to 23 plaintiff every month and without default. Defendant could have very well produced his Bank Account Statements about withdrawals for having paid interest amount regularly. Plaintiff has not proved that he has paid interest at any point of time. But the Learned counsel for defendant at page No.14 of the cross-examination has suggested to P.W.1 like this:-
"It is false to suggest that every month the defendant used to pay a sum of Rs.90,000/- in cash towards interest".
In the Written Statement it is pleaded that defendant used to pay a sum of Rs.1,20,000/- towards interest without any lapses. But, in the cross-examination of P.W.1, it is suggested that every month he was paying a sum of Rs.90,000/- towards interest. But the same is not established before the Court by producing necessary documents.
16. At page No.6 of the cross-examination, D.W.1 has deposed like this:-
24
"I have not written any letter or any correspondence about signing on blank paper as per Exs.P.3 and P.15 since September 2015 till receiving summons from this Court. I have not sent any whatsapp and message requesting plaintiff not to use blank signed papers".
Why defendant has to sign on blank papers and give it plaintiff?. It indicates that defendant has authorised the plaintiff to fill the document. May be for this reason he has not complained to the police. He has not filed any private complaint. He has not initiated any action against plaintiff for using blank papers or for fabricating Exs.P.3 and P.15. But the very defendant at page No.7 of the cross-examination has deposed like this:-
"It is true to suggest that for the first time while filing Written Statement I have contended about signing on blank papers".
This goes to show that defendant is falsely contending that he has not received a sum of Rs.1 crore by cash from plaintiff. When plaintiff got published Ex.P.8 - legal notice in two Newspapers, 25 defendant has filed a suit against him for defamation in O.S.No.8432/2018 that is an admitted fact. But, defendant is silent and he has not taken any action for fabricating documents using his signatures. This goes to show that indirectly defendant is admitting Exs.P.3 & P.15.
17. The Learned Advocate for defendant placed reliance upon ILR 1992 KAR 2222 - B.R.Mulani Vs. Dr.A.B. Aswathanarayana. Our Hon'ble High Court was considering the scope and ambit, when a Sale Agreement in writing is produced to adduce oral evidence. In the said case, in a case of a registered document oral evidence is permissible or not was the issue. In the said case also there was a Agreement. Plaintiff therein had contended that it was a Sale Agreement. On the other hand, defendant therein contended that it is only a loan transaction. Under those circumstances, the Hon'ble High Court held that when the terms contained in the Agreement are ambiguous and not clear, the 26 parties can be permitted to lead oral evidence. That is the proposition rendered in the said Judgment. In the case on hand, there is no ambiguity reading recitals of Ex.P.1. The Learned Counsel for defendant invited the attention of the Court to Ex.D.1. Ex.D.1 is a Memorandum of Understanding dated 22-9-2015 between plaintiff and defendant.
18. Para No.2 of Ex.D.1 reads like this:-
" Whereas, on this day both the parties are entering into a Sale agreement of the above said property only for the collateral security for the amount funded by the second party.
The actual sale transaction of the above said property cannot be considered as a sale transaction. The reason being the market value for the above said property is more than the amount declared in the sale agreement also the first party is not interested in any kind of sale transaction of the above mentioned property. It is only for the collateral purpose and the MOU and the sale agreement will hold cancelled once the first party returns the full amount funded by the second party. If the first party fails to return the amount mentioned in the sale 27 agreement then the second party has the rights to register the schedule property on the market value.
This document is not tendered in the evidence of D.W.1. On the other hand, it was confronted to P.W.1. P.W.1 only admitted the signature of defendant and the signatures of defendant are marked at Exs.D.1(a) and D.1(b). Plaintiff has emphatically denied his signature at Ex.D.1. Therefore, defendant ought to have identified the signature of plaintiff in his evidence. The same is not done. P.W.2 is the brother of plaintiff. When he was giving evidence on Exs.P.3 and P.15, Ex.D.1 was confronted and the signature of plaintiff was got marked at Ex.D.1(c). Admittedly, P.W.2 is not a party to Ex.D.1. He has come to depose before the Court on Exs.P.3 and P.15. Therefore, it can be said that Ex.D.1 is not proved before the Court. Because, P.W.1 has out rightly denied execution of Ex.D.1. Even otherwise, it is stated that Ex.D.1 came to be executed between plaintiff and defendant on 22-9-2015. But, as 28 could be seen from right top side of Ex.D.1, the stamp paper is purchased on 23-9-2015. When the stamp paper itself was purchased on 23-9-2015 how plaintiff and defendant can enter into a contract on 22-9-2015?. Therefore, it can be said that Ex.D.1 is not admissible in evidence. It can be authoritatively said that Ex.D.1 is created. There is no explanation by the defendant neither in the Written Statement nor in the evidence about the said dates referred supra. Therefore, the Court is of the opinion that defendant has failed to prove issue No.4. The Court has already stated that plaintiff has established payment of Rs.1 Crore 60 lakhs in favour of defendant. In the case on hand, whether plaintiff is entitled for specific performance has to be considered. Ex.P.1 is a Registered instrument. 35 months time was fixed for completion of sale process which is unusual. During pendency of the suit, plaintiff got amended the plaint and sought the relief of refund of advance amount paid to defendant along with interest at the rate of 18% p.a. 29 P.W.1 admits in the cross-examination that the suit schedule house is situated at HSR layout in a good locality. Defendant has contended that the suit schedule property is worth more than Rs.6 crores. It is true that defendant has not produced any document about the market value of the suit schedule property. The property is measuring East to West 8.10+ 8.05/2 mtrs and North to South 12.20 mtrs in all measuring 98.45 Sq.Mts together with plinth area of 600 sq.ft in basement floor and 650 sq.ft in ground floor, having reinforcement cement concrete roof, walls built with brick and cement mortar, mosaic flooring, hone wood used for doors and windows. It consists of three floors. This schedule has been described by plaintiff in the plaintiff schedule. Therefore, it can be certainly said that the value of the property shown in Ex.P.1 is on the lower side. If the suit is decreed for the relief of specific performance, it will be an unfair advantage in favour of plaintiff. In the case on hand, question of considering readiness and willingness does not arise for 30 consideration. Because, defendant himself has contended that when the suit transaction is a loan transaction, defendant has not disputed the financial capacity of plaintiff. Plaintiff has produced Exs.P.13 and P.14 to prove his financial stability. However, the attending circumstances forces the Court not to grant the relief of specific performance and to decree the suit for alternative relief for refund of money.
19. The Learned counsel for defendant MANU/TN/2616/ 2019 - K.Kanagasabai and Ors. Vs. R.Sankar. In the said case, on considering the facts of the case, the Hon'ble High Court of Madras held that the intention of the parties therein was to engage themselves in a loan transaction and not for sale of the property. For the same proposition of law, the Learned Counsel for defendant further relied upon AIR 1987 SC 2328 - Parakunnan Veetill Joseph's Son Mathew Vs.Nedumbara Kuruvila's Son and Ors. The said proposition is not applicable to the facts of the present 31 case. Because, Ex.D.1 is proved to be a invalid document. But the Court for the reasons stated supra is not inclined to grant the relief of Specific performance. Therefore, Issue Nos.1 to 3 are answered in the affirmative and issue No.4 is answered in the negative and additional issue No.1 is answered in the affirmative.
20. Issue No.5:- In view of findings on issue Nos.1 to 4 and additional issue No.1, plaintiff is not entitled for the relief of Specific Performance. He is entitled to alternative relief for refund of advance amount paid in favour of defendant along with interest at the rate of 18% pa. Accordingly, Issue No.5 is answered in the partly affirmative.
21. Issue No.6:- In view of findings on issue Nos.1 to 5 and additional issue No.1, I proceed to pass the following:- 32
ORDER Suit of plaintiff is partly decreed with cost.
Suit for the relief of Specific Performance is dismissed.
Suit is decreed for an alternative relief for refund of advance amount paid.
Defendant is directed to pay a sum of Rs.1 crore 60 lakhs along with interest at 18% p.a. from the date of Agreement to sell dated 22-9-2015 till realisation of the entire amount.
Draw Decree accordingly.
(Dictated to the Judgment-Writer, transcribed and typed by her and then corrected and pronounced by me in the open court on this the 7 th day of February 2020) (MANJUNATHA.G.A.) XXXV Addl.City Civil & Sessions Judge, Bengaluru 33 ANNEXURE Witnesses examined on behalf of the plaintiff.
P.W.1 : Sri.K.Sathymurthy
P.W.2: Sri.K.Kumaresan
P.W.3: Sri.S.Pandyan
Witnesses examined on behalf of the defendants.
D.W.1: Sri.K.V.Ranjith Kumar Documents marked on behalf of the plaintiff.
Ex.P.1 : Registered sale Agreement
Ex.P.1(a) : Signature of vendor
Ex.P.1(b) : Signature of witnesses
Ex.P.1(c) : Signature of witnesses
Ex.P.2 : Encumbrance certificate
Ex.P.3(a) : Signature of defendant
Ex.P.3(b) : Signature of witnesses
Ex.P.3(c) : Signature of witnesses
Ex.P.4 : Sale Deed dated 24-6-2006
Ex.P.5 : Notice dated 6-4-2018
34
Ex.P.6 : Postal Cover
Ex.P.7 : Postal receipt
Ex.P.8 : 2nd notice dated 29-8-2018
Ex.P.9 : Postal receipts
Ex.P.10 : Postal Acknowledgment
Ex.P.11 : Kannada Prabha Newspaper
Ex.P.12 : Indian Express News paper
Ex.P.13 : Bank Statement of HSBC
Ex.P.14 : ITR for the year 2018-2019
Ex.P.15 : Receipt dated 28-10-2015 executed
by defendant
Documents marked on behalf of the defendants.
Ex.D.1 : Memorandum of Understanding
(MANJUNATHA.G.A.)
XXXV Addl.City Civil &
Sessions Judge, Bengaluru
35