Bangalore District Court
Filed A Suit In O.S.No.11106/1997 ... vs Entered Into A Compromise With The ... on 17 December, 2016
IN THE COURT OF THE XVII ADDL.CITY CIVIL AND
SESSIONS JUDGE- MAYO HALL UNIT- BENGALURU.
Present- Smt.Vineetha P.Shetty, B.Sc., M.A., LL.M.,
XVII Addl.City Civil & Sessions Judge.
Dated-- This the 17th day of December, 2016
O.S. No.26030/2010
(CCH-58)
Sri M.Periaswamy,
Son of late Sri Muddu Gounder,
Aged about 63 years,
Occupation- Private Service, ... Plaintiff
Residing at No.2, in Sy.No.205/1
Subbayyanapalya, Banaswadi,
Bangalore.
(By Sri L.S.Chikkanagoudar, Adv)
Vs
Sri L.Ramachandra,
Son of Sri S.M.Lakshmaiah
No.101, Subbayana Paly, ... Defendant
Banaswadi Main road,
M.S.Nagar post,
Bangalore-560 033.
(By Sri V.Vijayashekara Gowda, Adv.)
Date of Institution of the - 09.07.2010
Suit
Nature of the suit - Suit for specific
Performance
2 OS.26030-2010
Date of commencement - 12.09.2011
of recording of evidence
Date on which the
Judgment was - 16.12.2016
pronounced
Years Months Date
Total duration - 06 05 08
JUDGMENT
The Plaintiff has filed this suit for specific performance of the Agreement dated 3.5.1996.
2. The facts of the case in brief is that- In the year 1996, the Defendant agreed to sell the suit property to the Plaintiff for Rs.2,40,000/- and received Rs.50,000/- as advance promising to execute the Registered Sale Deed within a period of two months from 3.5.1996, after receiving the balance Sale consideration. The Plaintiff paid further advance of Rs.20,000/- through a cheque dated 2.7.1996 drawn on State Bank of India, MEG & Center branch, Bangalore, again Rs.1,70,000/- on 9.8.1996 in cash, and thus, the Defendant received the entire Sale consideration of Rs.2,40,000/-.
3 OS.26030-2010
3. As per clause-2 of the Agreement of Sale, two months time was fixed from 3.5.1996 to execute the Sale Deed, or the G.P.A. and Affidavit whichever was possible, in favour of the purchaser, but the time was not the essence of the contract. Subsequently, by executing the notarized G.P.A and Affidavit, the Plaintiff was put in possession of the suit property. As per the notarized G.P.A., the Plaintiff was also given the liberty to put up construction.
4. That when the Plaintiff was about to put up construction in the year 1998, one P.Thandayudhapani, represented by his wife as Power of Attorney, filed a complaint in C.R.No.337/1996 u/s 420, 427, 407 and 506B IPC before XI ACMM, Mayo Hall unit, Bengaluru, which subsequently came to be dismissed. The said P.Thandayudhapani, represented by his G.P.A. Holder Smt.S.Ramani, filed a suit in O.S.No.2382/1998 for declaration, possession, mandatory injunction and Permanent Injunction on the basis of the documents said to have been executed by one S.M.Lakshmaiah. The Plaintiff filed a suit in O.S.No.11106/1997 against P.Thandayudhapani and S.M.Lakshmiah and obtained an order of Temporary Injunction. That on 19.1.2000, the Defendant entered into a compromise with the Plaintiff and the said suit was disposed of in terms of the 4 OS.26030-2010 Compromise Petition and the Defendant admitted the receipt of the Sale consideration of Rs.2,40,000/- received under the Agreement of Sale dated 3.5.1996 and notarized G.P.A. and Affidavit dated 9.8.1996, and also admitted that the Plaintiff was put in possession of the suit property and put up a construction on the said site and that he agreed to execute the Sale Deed in favour of the Plaintiff. That subsequently the Defendant failed to execute the Sale Deed in favour of the Plaintiff and hence the Plaintiff sent a legal notice on 20.5.2010 calling upon the Defendant to execute the Sale Deed. Inspite of receipt of the said notice, the Defendant failed to comply with the demand notice. Hence, the Plaintiff has filed this suit.
5. The Defendant entered appearance through his Counsel and filed written statement wherein the Defendant has admitted the alleged transaction in respect of the suit property and the receipt of the advance Sale consideration and the receipt of Rs.52,000/- from the Plaintiff in terms of the Compromise Petition in O.S.No.11106/1997. Interalia it is contended by the Defendant that the G.P.A and Affidavit have been prepared without his knowledge. Further the lands in Sy.No.205/1 of Subbaiahanapalya and other family properties are not yet been partitioned between himself, 5 OS.26030-2010 his father and his brothers, hence he alone is not the absolute owner of the suit property.
6. It is also contended by the Defendant that two months time was fixed under the Sale Agreement dated 3.5.1996 to obtain the Sale Deed from the Defendant, but even after three years from the date of payment of Rs.20,000/- through cheque dated 2.7.1996, i.e, within 2.7.1999, the Plaintiff has not obtained the Sale Deed in his favour and the alleged Sale Agreement is hopelessly barred by time. Further the value of the suit property is more than Rs.48 lakhs and the court fee paid by the Plaintiff is not sufficient, and the suit is also bad for mis- joinder and non-joinder of parties.
7. It is further contended by the Defendant that the Plaintiff has illegally executed the Gift Deed dated 28.4.2006 in favour of his wife Smt.Malliga, by misrepresenting that he is the absolute owner in possession of the suit property, when the Sale Agreement dated 3.5.1996 is still in subsistence and as the Gift Deed dated 28.4.2006 is a fraudulent document, the suit filed by the Plaintiff is not maintainable. Contending thus, the Defendant has prayed for dismissal of the suit.
6 OS.26030-2010
8. On the basis of the above pleadings, the following issues have been framed by my Predecessor-in- office-
1. Whether the Plaintiff proves that the Defendant agreed to sell the schedule properties for Rs.2.4 lakhs and received part consideration of Rs.50,000/- and executed an Agreement of Sale on 3.5.1996 promising to deliver the possession of suit properties at the time of receiving the balance Sale Consideration amount?
2. Whether the Plaintiff further proves that on 2.7.1996 Defendant received Rs.20,000/- and Rs.1.7 alakhs on 9.8.1996 and executed shara for the same?
3. Whether the Plaintiff is ever ready and willing to perform his part of contract?
4. Whether suit is time barred?
5. Whether suit is hit by non-joinder or misjoinder of parties?
6. Whether suit is valued properly and court fee paid is sufficient?
7. Whether Plaintiff has shown cause of action?
8. Whether Defendant is entitled for compensation of Rs.50,000/-?
7 OS.26030-2010
9. What order or decree?
Additional Issues-
1. Whether the Defendant proves that Plaintiff had no right to execute gift deed dated 28.04.2006?
2. Whether the suit is not maintainable?
9. The Plaintiff is examined as PW.1. Ex.P.1 to P.41 are marked on Plaintiff's side. Defendant is examined as DW.1 and Ex.D.1 is marked on Defendant's side.
10. Heard the Arguments of Sri L.S.Chikkanagoudar Advocate, the learned counsel for the Plaintiff and Sri V.Vijayashekara Gowda, Advocate, the learned Counsel for the Defendant.
11. Counsel for the Plaintiff relied on the following citation-
1. 2016 SAR (Civil) 920 Madina Begum and another Vs. Shiv Murti Prasad Pandey and others.
12. Counsel for the Defendant relied on the following citations-
8 OS.26030-2010
1. ILR 2008 KAR 857 Dr.N.Kasinath Vs Sri. Arun R.Rawell and others.
2. ILR 2014 KAR 233 Smt.Padmini Raghavan Vs. H.A.Sonnappa, since dead by his LRs and others
3. AIR -2015 SC 2301 Fatehji & Company and another Vs. L.M.Nagpal and others
4. ILR - 2009 - KAR- 3001 Ahmadsahab Abdul Mulla (2)(Dead) Vs.Bibijan and others
5. (2007)5 SCC -614 Hardesh Ores(P)Ltd-v- Hede and Company
6. Madras High Court - OSA No.191/2015 Mrs.Pushpa Raju Vs. Mrs.Vasumathi H.Shah
7. Madras High Court - OP No.553/2014 Mrs.Vasumathi H.Shah Vs. Mrs.Pushpa Raju
8. AIR 1977 SC 2421 T.Arivandandam Vs. T.V.Satyapal and another
9. ILR 2010 KAR 5487 H.D.Hanumanthappa Vs. Mohammed Sab and others.
9 OS.26030-2010
10. AIR 2012 SC 3912 The Church of Christ Charitable Trust and Educational Charitable Society, rep- by its Chairman Vs. M/s Ponniamman Educational Trust, rep- by Its Chairperson/Managing Trustee.
13. My findings on the above issues and the Additional issues are as hereunder-
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 - In the Negative Issue No.6 - In the Affirmative Issue No.7 - In the Affirmative Issue No.8 - In the Negative Addl.Issue No.1 - In the Affirmative Addl.Issue No.2 - The suit is maintainable.
Issue No.9 - As per the order below, for the following -
REASONS
14. Issue No.1 and 2-- As these issues are inter- related they are taken up together for common consideration to avoid repetition of discussion.
10 OS.26030-2010
15. The Plaintiff has contended that the Defendant agreed to sell the suit properties for Rs.2.4 lakhs and received part consideration of Rs.50,000/- and executed Agreement of Sale on 3.5.1996 promising to deliver the possession of the suit properties at the time of receiving the balance Sale Consideration. Further the Defendant received Rs.20,000/- on 2.7.1996 and Rs.1.7 lakhs on 9.8.1996 and accordingly made a shara on the Agreement.
16. PW1 M.Periaswamy has sworn in his Affidavit filed in support of his examination-in-chief that, the Defendant is the owner of the suit schedule property and entered into a Sale Agreement dated 03.05.1996 with him for a Sale Consideration of Rs.2,40,000/- and Rs.50,000/- advance was paid on the same day and it was agreed to pay the balance Sale Consideration of Rs.1,90,000/- at the time of execution of the Registered Sale Deed. Subsequently as the Defendant demanded the amount, the balance Rs.1,90,000/- was also paid by the Plaintiff. PW1 has further sworn that the receipt of balance Sale Consideration of Rs.20,000/- on 02.07.1996 and Rs.1,70,000/- on 09-08-1996 were duly acknowledged on the respective dates, as per the shara in the Agreement.
11 OS.26030-2010
17. The Sale Agreement has been marked as Ex.P38 during evidence of PW1 only after payment of duty and penalty and the GPA and Affidavit are marked as Ex.P39 and Ex.P40 respectively. PW1 has identified his signature as a Purchaser and that of the Defendant as a Seller, and also the signatures of the witnesses Yesudas and Muniswamy as per Ex.P38(a) to (g) and Ex.P39(a) to
(g) in General Power of Attorney. Ex.P40(a) and (b) are the signatures of the Defendant in the Affidavit. The endorsement evidencing subsequent payments dated 02- 07-1996 and 09-08-1996 signed by the Defendant and witnesses in Ex.P38 are as per Ex.P38 (i) to (l).
18. PW.2 V.Muniswamy is the witness examined on behalf of the Plaintiff. He has sworn that the Defendant agreed to sell the suit property to the Plaintiff and executed Agreement of Sale on 3.5.1996 and received a sum of Rs.50,000/- as advance and promised to deliver the suit property to the Plaintiff after receipt of balance Sale consideration of Rs.1,90,000/- . It is in his Affidavit that L.Devaraju the brother of the Defendant himself and another person T.Yesudas were present at that time and all of them signed the Agreement as witnesses to the transaction. PW.2 was present when the cash amount of Rs.1,70,000/- out of remaining balance of Rs.1,90,000/-
12 OS.26030-2010 was paid by the Plaintiff to the Defendant. PW.1 has further sworn that after receiving the entire Sale consideration of Rs.2,40,000/- the Defendant put the Plaintiff in possession of the suit property and the G.P.A. and Affidavit were duly notarized and he signed the G.P.A as one of the witnesses. PW.2 identified his signature on the Sale Agreement as per Ex.P.38(b), identified the signature of the Plaintiff, Defendant and the witnesses Devaraju and Yesudas at Ex.P.38(a) to (e) and also identified his signature on Ex.P.39 G.P.A. as Ex.P.39(i) and that of the Plaintiff, Defendant and witnesses at Ex.P.39(a) to (h). During cross-examination PW.2 asserted that he has read the contents of the Sale Agreement and nothing favourable to the case of the Defendant has been elicited during the cross-examination of PW.2.
19. In para 4 of his Affidavit DW1 also admitted the Sale Agreement dated 03.05.1996 and receipt of consideration of Rs.50,000/- on the date of Agreement and subsequent receipt of Rs.20,000/- on 02-07-1996, but denied of payment of rest of the balance Sale Consideration. DW1 has admitted during his cross- examination that, he has received the entire Sale Consideration as per Sale Agreement dated 09.08.1996. The relevant potion in his evidence reads as- 'ªÁ¢UÉ zÁªÀ 13 OS.26030-2010 ¸ÀévÀÛ£ÀÄß PÉÆqÀÄvÉÛêÉAzÀÄ ¢£ÁAPÀ 3-5-1996 gÀAzÀÄ ¤¦ 3 PÀæAiÀÄzÀ PÀgÁgÀÄ ¥ÀvÀæzÀ ªÀÄÆ®PÀ §gÉzÀÄ PÉÆnÖzÉÝÃªÉ JAzÀgÉ ¸Àj. ¸ÀzjÀ PÀæAiÀÄzÀ PÀgÁjUÉ ¸ÀA§A¢ü¹zÀAvÉ ªÁ¢ 50 ¸Á«gÀ gÀÆUÀ¼À ªÀÄÄAUÀqÀ ºÀtªÀ£ÀÄß £À£ÀUÉ PÉÆnÖzÁÝgÉ JAzÀgÉ ¸Àj. PÀæAiÀÄzÀ PÀgÁgÀÄ MlÄÖ 2 ®PÀëzÀ 40 ¸Á«gÀ gÀÆ PÀæAiÀÄzÀ ºÀtPÉÌ ¤UÀ¢Aü iÀiÁVvÀÄ,Û G½zÀ ºÀt 1,90,000 gÀÆUÀ¼À£ÀÄß PÀæAiÀÄ ¥ÀvÀæªÀ£ÀÄß £ÉÆÃAzÀtô ªÀiÁrPÉÆqÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è £ÀªÀÄä £ÀqÀÄªÉ PÀgÁgÀÄ DVvÀÄÛ JAzÀgÉ ¸Àj. PÀæAiÀÄzÀ PÀgÁgÀÄ DzÀ £ÀAvÀgÀ ¢B 2-7-96 gÀAzÀÄ ªÁ¢ £À£UÀ É 20 ¸Á«gÀ gÀÆUÀ¼À£ÀÄß ¤ÃrzÁÝgÉ JAzÀgÉ ¸Àj. G½zÀ 1 ®PÀë 70 ¸Á«gÀ gÀÆUÀ¼À£ÀÄß 2-7-1996 jAzÀ 2 wAUÀ¼À M¼ÀUÁV ªÁ¢ PÉÆqÀ¨ÉÃPÉAzÀÄ £ÀªÀÄä°è ªÀiÁvÀÄPÀvÉAiÀiÁVvÀÄÛ JAzÀgÉ ¸Àj. CzÉà ¥ÀæPÁgÀ 9- 8-1996 gÀAzÀÄ ªÁ¢ G½PÉ ºÀt 1,70,000 gÀÆUÀ¼À£ÀÄß £À£ÀUÉ ¤ÃrzÁÝgÉ JAzÀgÉ ¸Àj. PÀæAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀ ¥ÀÇwð ºÀt £À£ÀUÉ ¸ÀAzÁAiÀĪÁVzÉ JAzÀgÉ ¸Àj.'
20. When a pointed question regarding possession of property was posed to DW.1 on behalf of the Plaintiff suggesting that possession of the suit property was delivered to the Plaintiff through General Power of Attorney and Affidavit, DW.1 only pleaded ignorance. It is worthy to mention here itself, that mere ignorance is not denial. Apart from this, he has categorically admitted his signatures in Ex.P.39 General Power of Attorney and Ex.P.40 Affidavit as per Ex.P.39(a) and Ex.P.40(a). DW.1 also admitted that the Plaintiff has constructed a house in the suit property and he has not lodged any complaint 14 OS.26030-2010 with the police nor filed any civil suit against such construction, in the suit property.
21. Thus, on appreciation of entire evidence of PW.1 and DW.1 coupled with documentary evidence referred above, the Plaintiff has established that the Defendant agreed to sell the suit properties for Rs.2.4 lakhs and received part consideration of Rs.50,000/- and executed Agreement of Sale as per Ex.P.33 on 3.5.1996 promising to deliver the possession of the suit property at the time of receiving balance consideration amount. The Plaintiff has further established that on 2.7.1996, the Defendant received Rs.20,000/- and on 9.8.1996 received Rs.1.7 lakhs, by executing the shara in Ex.P.33. There is clear admission in the evidence of DW.1 on these aspects and hence, I answer Issue No.1 and 2 in the Affirmative.
22. Issue No.3- It is contended on behalf of the Plaintiff that he was always ready and willing to perform his part of contract. It is in his Affidavit that the time was not the essence of the contract and it was agreed that within 2 months of the Sale Agreement, either the Sale Deed or the General Power of Attorney and Affidavit whichever is possible has to be executed and accordingly the Defendant had duly executed G.P.A and Affidavit both 15 OS.26030-2010 dated 09.08.1996 and notarized before the Notary, and put the Plaintiff in possession of the suit property. The GPA and the Affidavit of the Defendant confirmed PW.1 about the ownership of the Defendant in respect of suit schedule property and hence he constructed a residential house therein.
23. On perusal of Ex.P.38, it is seen that as per Clause-2 of the Agreement, it was agreed between the parties to execute the Sale Deed within two months from the date of Agreement and that the Vendor is to execute the Sale Deed or G.P.A./Affidavit whichever is possible in favour of the Purchaser or his nominee. The recitals of Clause-2 of the Agreement reads as-
" Within two months from this date the Vendor shall execute the Sale Deed or GPA/Affidavit which ever is possible in favour of the purchaser or his nominee/s."
24. The G.P.A. and the Affidavit at Ex.P.2 and P.3 have been duly executed by the Defendant. Though DW.1 contended that he had no knowledge of G.P.A. and Affidavit the said contention is falsified in view of Compromise Petition at Ex.P2 filed in O.S.No.11106/1997 and there is no denial of this vital document Ex.P.2 by the 16 OS.26030-2010 Defendant. Therefore, the contention that DW.1 had no knowledge of G.P.A and Affidavit, cannot be accepted.
25. It is also found in the evidence of PW.1 that at the time of construction, one P.Thandayudhapani at the instigation of the Defendant, lodged a complaint against the Plaintiff and hence the Plaintiff was constrained to file the aforesaid O.S.No.11106/97 for Permanent Injunction against Defendant, his father S.N.Lakshmaiah and P.Thandayudhapani. Ex.P1 is the certified copy of plaint in O.S.11106/97. It is further found in his evidence that as a counter blast to the said suit, P.Thandayudhapani's wife and GPA holder Smt.S.Ramani, filed O.S.2382/1998 and thereafter the Defendant entered into a compromise with the Plaintiff as per Ex.P.2 in OS.No.11106/1997.
26. It is in the Affidavit of PW1 that as per Ex.P.2 the Compromise Petition filed in O.S.No.11106/1997, the Defendant had agreed to execute the Registered Sale Deed after completion of FDP.64/1990 arising out of O.S.2560/1982 the suit filed by his family members for partition, but however with a malafide intention to avoid the execution of the Sale Deed, tried to avoid the Plaintiff and hence PW1 sent a legal notice as per Ex.P5 with its postal receipt at Ex.P6 to Defendant which was duly 17 OS.26030-2010 received by the Defendant as per Ex.P.7 acknowledgment, but he has not responded to the notice.
27. PW1 has also referred to Ex.P8 to Ex.P10 Telephone Bills, Ex.P11 to Ex.P14 KEB Bills, Ex.P15 to Ex.P18 Water Bills, Ex.P19 Gas Bill to show his residential occupation. Ex.P20 is the Khata Extract, Ex.P21 is the Khata Certificate, Ex.P22 is the notice sent by BBMP to his residential address, Ex.P23 and Ex.P24 Encumbrance certificate, Ex.P25 to Ex.P31 Tax receipts, Ex.P32 Khata registration Certificate. The Gift Deed executed by PW1 in favour of his wife is referred to by PW1 as per Ex.P32, the Death Certificate of his wife is at Ex.P34.
28. It is elicited from PW.1 that this suit has been filed by him as the Defendant failed to execute the authenticated document in favour of the Plaintiff and also for putting an end to the transaction between himself and Defendant No.1. The relevant portion elicited during cross-examination of PW.1 reads as- "PÀæAiÀÄzÀ PÀgÁj£À ªÉÄÃ¯É £Á£ÀÄ PÀæAiÀÄ ¥ÀvÀæ ªÀiÁrPÉÆr JAzÀÄ PÉýgÀÄvÉÛãÉ. zÁR¯ÁwUÀ¼À£ÀÄß ¥ÀÇtðªÁV ªÀiÁr PÉÆqÀzÉà EgÀĪÀÅzjÀ AzÀ ¥ÀæwªÁ¢AiÀÄ «gÀÄzÀÞ F ¥ÀæPÀgÀtªÀ£ÀÄß ªÀåªÀºÁgÀ ¥ÀÇtðUÉƽ¸À®Ä ºÁQgÀÄvÉÛãÉ".
18 OS.26030-2010
29. It is contended by DW1 that the GPA and Affidavit have been prepared without his knowledge and that in FDP 64/1990 no share has been allotted to him and hence as per the Compromise petition filed in O.S.11106/97, the Plaintiff shall forego the enforcement of the Sale Agreement and he is only entitled for advance Sale Consideration, cost of construction and liquidated damages. Ex.D1 RTC pertaining to Sy.No.205/1 of Banasawadi village is referred by DW1 during his examination in chief. It is needless to mention that the entries in the revenue records are not conclusive proof of possession but they only create rebuttable presumption. As the Plaintiff on the other hand has produced Ex.P.8 to P10 Telephone bills, Ex.P.11 to P14 Electricity bills, Ex.P.15 to P18 Water bills and Ex.P.19 Gas bill pertaining to his house situated in the suit property, it has to be held that the presumption is rebutted.
30. During cross examination, DW1 admitted that there was partition in the year 1967 among his father Lakshmaiah and his brother Ramaiah as per Registered Partition Deed dated 15.08.1967 and the suit property along with other properties have fallen to the share of his father. It was suggested to DW1 that his father also had partitioned the family properties and made a mention of the same in the Will dated 01.08.1984 but the said 19 OS.26030-2010 suggestion is denied by DW1. Ex.P41 is the certified copy of the Plaint in O.S 2560/1982 for partition filed by the family members of the Defendant including the suit property, which is marked during the cross examination of DW1. Though DW1 admitted that he filed FDP 64/90 claiming his share as per the decree in O.S.2560/82, he has stated that the said FDP was dismissed for non- prosecution. It was suggested to DW1, that he had deliberately not prosecuted the FDP in order to avoid the Plaintiff's claim over the suit property. Of course DW1 has denied the said suggestion.
31. It is not the case of the Defendant that he does not have any right over the suit property and his case is only that he is not an absolute owner of that property. The copy of the plaint and Judgment in OS.2560/1982 would clearly indicate that the Defendant has a right over the suit property as a co-owner and therefore, it cannot be held that the Sale Agreement is invalid, as contended by the Defendant. Further more, when he himself as a co- owner had executed the Sale Agreement, he is estopped from taking up such a contention of invalidity of the Agreement on the said ground.
32. The learned counsel for the Plaintiff contended that the Defendant No.1 in the Compromise Petition 20 OS.26030-2010 Ex.P.2 filed in O.S.No.11160/1997 had admitted that he received the Sale consideration and the conduct of the Defendant is explicit that a futile attempt is made to defraud a bonafide Purchaser. On perusal of the Compromise Petition at Ex.P.2, it amply supports the case of the Plaintiff with regard to Ex.P.38 Sale Agreement. The said Agreement has been duly acted upon by the Plaintiff by taking possession and constructing a residential house therein. Ex.P.5 legal notice sent by the Plaintiff further strengthens his case. There is no explanation on Defendant's side for not sending the reply to the said legal notice, though the same was duly received by the Defendant as per Ex.P.7 acknowledgment. When all these aspects are considered cumulatively, it cannot be held that the Plaintiff was not ready and willing to perform his part of contract as contended by the Defendant and it has to be held that the Plaintiff was ever ready and willing to perform his part of contract. Hence, I answer Issue No.3 in the Affirmative.
33. Issue No.4- Defendant has taken up the contention in para-5 of the Written Statement that since two months time had been fixed under the Sale Agreement dated 3.5.1996 and payment through cheque was made on 2.7.1996, the Plaintiff ought to have obtained the Sale Deed on or before 2.7.1999 or ought to 21 OS.26030-2010 have sued against the Defendant on or before 2.7.1999 and therefore, the suit is hopelessly barred by time.
34. As already stated in the Sale Agreement Ex.P.38, as per Clause-2 of the Agreement, it is agreed between the parties to execute the Sale Deed within two months from the date of Agreement or G.P.A./Affidavit whichever is possible in favour of the Purchaser or his nominee. The G.P.A. and the Affidavit have been duly executed by the Defendant and validity of G.P.A and affidavit are further confirmed by the Defendant in the Compromise Petition Ex.P.2.
35. PW1 has also sworn that O.S.No.2382/1998 filed by P.Thandayudhapani came to be dismissed and the suit in O.S.No.2560/1982 was decreed. Ex.P35 is the certified copy of the Judgment in OS.No.11106/1997 and Ex.P36 and Ex.P.37 are certified copies of Order sheet and Petition in FDP 64/1990 respectively. It is found in the evidence of PW1 that Defendant demanded Rs.52,000/- at the time of compromise in O.S.11106/1997. The certified copies of compromise petition dated 19-01-2000 filed in O.S.11106/1997 is at Ex.P2. The recitals of clause-f of the Compromise Petition reads as-
22 OS.26030-2010 " The Defendant No.1 hereby acknowledges the receipt of Rs.52,000/- out of which Rs.50,000/- (fifty thousand only) has been paid by Banker's cheque bearing No.838442 dated 14.1.2000 drawn on SBI of MEG & Center and Rs.20,000/- by cash today."
In the presence of duly executed prime documents i.e. the Compromise Petition, G.P.A and Affidavit, it has to be held that there was implied consent on the part of the Defendant for extending the time and accordingly, the time has been duly extended. As Final Decree Proceedings in respect of OS.No.2560/1982 have not yet been concluded, it cannot be held that the suit is barred by time. Hence, I answer Issue No.4 in the Negative.
36. Issue No.5-- It is contended by the Defendant that the suit is bad for mis-joinder and non-joinder of proper and necessary parties. However, the Written Statement does not give the particulars of the parties who are required to be added as proper and necessary parties so as to hold that the suit is bad for non-joinder of proper and necessary parties. As there is only one opponent as against the Defendant, who is none other than the Plaintiff in this case, the contention of mis-joinder appears strange and therefore, I answer Issue No.5 in the Negative.
23 OS.26030-2010
37. Issue No.6-- The Defendant contended that the suit is not properly valued and the court fee paid is insufficient. According to the Defendant, the Plaintiff should have paid court fee on the market value of the suit property. However, no material evidence is placed by the Defendant touching valuation. It is needless to mention that the Plaintiff has based his claim upon the Sale Agreement dated 3.5.1996 at Ex.P.38 and has filed this suit for Specific Performance of Contract and hence the question of paying the court fee on the market value does not arise. Therefore, I hold that the suit is valued properly and the court fee paid is sufficient. Hence, I answer Issue No.6 in the Affirmative.
38. Issue No.7 and Addl.Issue No.2-- It is contended on behalf of the Defendant that Plaintiff has not shown cause of action and that the suit is not maintainable. DW1 has sworn in the Affidavit filed in lieu of his examination-in-chief that the suit property never stood in his name and he did not have any title or Khata pertaining to suit property and therefore, the suit is not maintainable. DW1 further contended that the land in Sy.No.205/1 of Subbaiahnapalya was not yet partitioned between the family members and a suit in O.S.2560/82 was filed for partition followed by Final Decree 24 OS.26030-2010 Proceedings in FDP 64/1990, and the same was dismissed for non prosecution and as of now, the Defendant alone is not the absolute owner of property bearing No.2 in Sy.No.205/1.
39. When the Plaintiff has approached this Court with a definite assertion that the Defendant executed Sale Agreement in his favour and received the Sale consideration but subsequently, refused to execute the Sale Deed, it cannot be said that the Plaintiff has not shown the cause of action. Further it is seen that the Sale Agreement was executed by the Defendant as a co-owner of the suit property and therefore, merely on the ground that the Defendant has no absolute ownership over the suit property, it cannot be said that the entire suit of the Plaintiff is bad in law. When there is a cause of action, it cannot be said that the suit is not maintainable. Hence, I hold that Plaintiff has shown the cause of action and the suit is maintainable. Accordingly I answer Issue No.7 in the Affirmative and Addl.Issue No.2, as indicated above.
40. Issue No.8-- The Defendant contended that he is entitled for compensation of Rs.50,000/-. However, there is no convincing evidence, on record as to how the Defendant is entitled for the said compensation. Hence, I 25 OS.26030-2010 hold that the Defendant has not established that he is entitled for the compensation claimed by him. Therefore, I answer Issue No.8 in the Negative.
41. Addl.Issue No.1-- It is the contention of the Defendant that Plaintiff has no right to execute the Gift Deed dated 28.4.2006. Ex.P.33 is the Gift Deed through which the Plaintiff gifted the property purchased by him vide Sale Agreement coupled with G.P.A and Affidavit from the Defendant. PW.1 has admitted that in the Gift deed he has not shown as to how the property was acquired by him. It is contended by DW1 that the Plaintiff executed the Gift Deed in favour of his wife Malliga, misrepresenting that he is the absolute owner in possession of suit property and on the other hand, PW.1 contended that since he was in service elsewhere he executed a Gift Deed in favour of his wife so as to enable her to deal with the suit property in which their residential house is situated. From the material evidence on record, it is seen that the sale formalities could not be completed by the parties as the Final Decree Proceedings in respect of OS.No.2560/1982 have not been completed and therefore it is needless to mention that the Plaintiff has not become an absolute owner of the suit property as on the date of execution of the Gift Deed. Hence, it has to be held that the Plaintiff had no right to execute the Gift 26 OS.26030-2010 deed dated 28.4.2006 in favour of his wife. Hence, I answer Addl.Issue No.1 in the Affirmative.
42. Issue No.9:- The relief covered u/s 20 of the Specific Relief Act is purely a discretionary relief. No doubt many years have been passed after execution of the Sale Agreement, but that itself is not sufficient to hold that the Plaintiff is not entitled for the relief of specific performance of contract. In view of the reasons assigned while answering Issue No.1 to 8 and as the possession of the Plaintiff over the suit property is also established, it has to be held that the Plaintiff is entitled for the relief of specific performance of contract, as prayed. The facts and circumstances in the decisions relied on by the Counsel for the Defendant and the facts and circumstances of the case on hand are not identical and therefore, cannot be made applicable to this case.
43. In the result, I proceed to pass the following-
ORDER The suit against the Defendant is decreed as prayed for with costs.
27 OS.26030-2010 The Plaintiff is entitled for the specific performance of the Agreement of Sale dated 3.5.1996.
The Plaintiff is entitled to get the Sale Deed executed by the Defendant, immediately after the allotment of suit property to Defendant as per Judgment in OS.No.2560/1982 and the Plaintiff is at liberty to get himself impleaded in the Final Decree proceedings in respect of Judgment in OS.No.2560/1982.
Draw up decree accordingly.
(Dictated to the Judgment-writer on computer directly, typed by her, corrected and then pronounced by me in the open court on this the 17th day of December 2016) (Vineetha P.Shetty) LVII Addl.City Civil & Sessions Judge, Mayo Hall unit, Bengaluru.
ANNEXURE List of witnesses examined for Plaintiff-
PW.1 - M.Periaswamy,
PW.2- V.Muniswamy,
28 OS.26030-2010
...
List of documents marked for Plaintiff-
Ex.P1- C.C of the Order sheet in O.S.11106/97, Ex.P2- C.C of the compromise petition in O.S.11106/97, Ex.P3- C.C of the Judgment in O.S.11106/97, Ex.P4- C.C of the Decree in O.S.11106/97, Ex.P5- Legal Notice, Ex.P6- Postal receipt, Ex.P7- Acknowledgment, Ex.P8 to P10- Telephone Bills, Ex.P11 to P14- KEB Bills, Ex.P15 to P18- BWSSB Bills, Ex.P19- Gas bill, Ex.P20- Khatha certificate, Ex.P21- Khatha extract, Ex.P22- Notice issued by the BBMP, Ex.P23 & P24- Encumbrance certificates, Ex.P25 to P31- Tax paid receipts, Ex.P32- Khatha registration certificate, Ex.P33- Gift deed, Ex.P34- Death certificate of Malliga Ex.P35- Preliminary decree in OS 11106/97, Ex.P36- C.C of the Order sheet in FDP 64/90, Ex.P37- C.C of the Petition in FDP 64/90, Ex.P38- Agreement of sale, 29 OS.26030-2010 Ex.P38(a to d)- Signatures of DW1, Ex.P38(e)- Signature of PW1, Ex.P38(f)- Signature of Muniswamy, Ex.P38(g)- Signature of Yesudas, Ex.P38(h)- Signature of Devaraju, Ex.P38(i & j)- Signatures of DW1, Ex.P38(k & l)- Signatures of Yesudas, Ex.P39- General Power of Attorney, Ex.P39(a to e)- Signature of DW1, Ex.P39(f)- Signature of Yesudas, Ex.P39(g)- Signature of Jayapal, Ex.P39(h)- Signature of PW1, Ex.P40- Affidavit, Ex.P40(a & b)- Signatures of DW1 Ex.P.41 copy of plaint in OS.2560/1982 ...
List of witnesses examined for Defendants-
DW.1- L.Ramachandra, ...
List of documents marked for Defendants-
Ex.D1- RTC extract.
...
(Vineetha P.Shetty)
LVII Addl.City Civil & Sessions Judge, Mayo Hall unit, Bengaluru.
30 OS.26030-2010 17.12.2016 Plaintiff present, Counsel absent Defendant present, Counsel absent.
Judgment pronounced in the open court ( vide separate orders ).
ORDER The suit against the Defendant is decreed as prayed for with costs.
The Plaintiff is entitled for the specific performance of the Agreement of Sale dated 3.5.1996.
The Plaintiff is entitled to get the Sale Deed executed by the Defendant, immediately after the allotment of suit property to Defendant as per Judgment in OS.No.2560/1982 and the Plaintiff is at liberty to get himself impleaded in the Final Decree proceedings in respect of Judgment in OS.No.2560/1982.
Draw up decree accordingly.
31 OS.26030-2010 LVII Addl.City Civil & Sessions Judge, Mayo Hall unit, Bengaluru.