Bangalore District Court
M/S Apsara Metalica Industries vs Smt. Sharadha on 4 April, 2017
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
Dated this the 4th day of April 2017.
PRESENT: Smt. M.LATHA KUMARI, MA, LLM.,
XI Addl.City Civil Judge, B'lore city.
O.S.No.7183 of 2006
C.C.H.8
Plaintiff/s: M/S Apsara Metalica Industries
No.69, III Cross,
Cubbonpet,
Bengaluru -560002
represented by its partner
Nitish N.Rohera
(By Sri.M.G.Javeed Ahmed Khan,
advocate)
Vs.
Defendant/s: 1. Smt. Sharadha
W/O Sri. K.Annaiah,
aged about 45 years,
residing at No.18, III Cross,
Cubbonpet, Bengaluru-560002
2. Sri. R.Sundar Raman,
S/O Ramachandra Iyer,
aged about 63 years,
residing at No.66,
Indira Colony,
Chennai-600083
(D.1- Expt.,
Sri. B.A. advocate for D.2)
2 O.S. No.7183/2006
Date of the institution of suit: 9.8.2006
Nature of the suit: Specific performance
Date of the commencement of 8.9.2011
recording of the evidence :
Date on which the judgment 4.4.2017
was pronounced :
Total duration: Year/s Month/s Day/s
10 07 25
XI Addl.City Civil Judge,
B'lore city.
JUDGMENT
This is a plaintiff's suit for specific performance of the agreement of sale dated 14.1.1991 directing the defendants to execute proper lawful deed of absolute sale in favour of the plaintiff to convey the property bearing site No.4"C", 932 in Block No.I in Hennur-Banasavadi Road extension, Bengaluru measuring east-west 12.20 meters, north-south 18.15 meters hereinafter referred to as suit schedule property.
2. Brief facts of the plaintiff's case is that suit schedule property was allotted to the 1st defendant by BDA, Bengaluru.
3 O.S. No.7183/2006After paying the site consideration of Rs.34,900/- on 19.8.1985, 1st defendant also obtained possession of the suit schedule property from BDA as per possession certificate dated 24.2.1986. 1st defendant also executed lease-cum-sale dated 24.2.1986 in favour of BDA. Accordingly, 1st defendant became the owner of suit schedule property and in possession of the same, agreed to sell the same in favour of the plaintiff for a sale consideration of Rs.1,00,000/- and executed agreement of sale dated 14.1.1991 in respect of suit schedule site in favour of the plaintiff and received entire sale consideration of Rs.1,00,000/- on the date of agreement itself. Further plaintiff put the 1st defendant in possession of suit schedule property in pursuance of the said agreement. Accordingly, plaintiff is in possession and enjoyment of the suit schedule property. It is plaintiff's further case that, under the terms and conditions of lease-cum- sale agreement executed in favour of BDA, 1st defendant was precluded from alienating the suit schedule property for a period of 10 years. Therefore, plaintiff could not get the sale deed executed from the 1st defendant even though he has already paid entire sale consideration to the 1st defendant herein. When such being the state of affairs, plaintiff came to know that, 1st defendant with a malafide intention of making unlawful gain, negotiating with others to sell the suit schedule property. With a view to prevent this illegal act of the 1st defendant, plaintiff filed suit in O.S. No.2152/1996 for permanent injunction 4 O.S. No.7183/2006 seeking to restrain 1st defendant from alienating the suit schedule property in favour of others. In the said suit, plaintiff also obtained an order of status-quo till the disposal of the said case. During the pendency of the said suit in O.S. No.2152/1996, 1st defendant obtained a sale deed dated 20.3.2000 in her favour by BDA and sold the suit schedule property in favour of 2nd defendant under a sale deed dated 5.4.2004 not only violating the status-quo order granted in the said suit, but also suppressing the sale deed dated 20.3.2000 from the plaintiff herein. Plaintiff further asserts that, he has paid entire sale consideration to the 1st defendant herein always ready and willing to perform his part of contract. The 1st defendant, who is bound to execute the sale deed, failed to perform her part of contract and thereby committed the breach. The sale deed of 2nd defendant hit by doctrine of lispendency. Hence, plaintiff constrained to file this suit after withdrawing his earlier suit in O.S. No.2152/1996 with the leave of the court to file a fresh suit on the same subject matter.
3. On issuance of suit summons, 1st defendant remained absent and placed exparte. 2nd defendant appeared though his counsel and resisted the suit of the plaintiff by filing his written statement asserting that, he is neither the necessary nor proper party required for adjudicating the case of the plaintiff. No relief has been prayed for in the suit against this 5 O.S. No.7183/2006 defendant. As such, there is absolutely no cause of action against 2nd defendant. This defendant further submitted that, he is a bonafide purchaser of the suit schedule property under a registered sale deed dated 5.4.2004 for a valuable consideration from the 1st defendant herein after verifying the title of the 1st defendant to the suit schedule property and also regarding the encumbrance, if any upon the schedule property. He also caused a public notice through his advocate, which was published in the local English Daily namely "Hindu" on 22.3.2004 seeking objections from general public, if any for the proposed sale of the schedule property by 1st defendant in favour of 2nd defendant. Inspite of such publication, he has not received any objections from anybody. Accordingly, he purchased the suit schedule property from the 1st defendant herein. At the time of purchasing the suit schedule property, 1st defendant apart from delivering the physical possession of the suit schedule property, delivered all the relevant original documents pertaining to the same to the 2nd defendant herein, which were in custody of the 1st defendant. Subsequent to the purchase of said property, 2nd defendant got changed katha and other revenue records in his name and paying necessary taxes to the BBMP. After obtaining sanctioned plan by the Town Planning Department of the BBMP, constructed a residential house upon the suit schedule property as per approved plan and he is in lawful possession and enjoyment of the suit schedule property by investing huge sum of money.
6 O.S. No.7183/2006He is unaware of any earlier proceedings that has been initiated as claimed in the plaint against 1st defendant. The alleged sale agreement is within the 10 years lease period. Accordingly, said agreement is not having any legal sanctity. He is not having any knowledge about the earlier suit O.S. No.2152/1996 filed by the plaintiff herein. The doctrine of lispendency is not applicable to this case. Hence, pray for dismissal of the suit with costs.
4. Based on these respective pleadings, the following issues are framed by this court as follows:-
1. Whether the plaintiff proves that defendant No.1 had agreed to sell the suit schedule site in its favour for a sale consideration amount of Rs.1 lakh and defendant No.1, after receiving entire sale consideration amount had executed agreement of sale dated 14-1-1991 in his favour?
2. Whether the plaintiff proves that 1st defendant had parted with possession of schedule site in his favour on 14-1-1991 under part performance of contract?
3. Whether the plaintiff proves that his readiness and willingness to perform his part of contract in respect of sale agreement dated 14-1-1991?
4. Whether the defendant No.2 proves that he is not necessary party in this suit?7 O.S. No.7183/2006
5. Whether defendant No.2 proves that he is bona-
fide purchaser of schedule property from defendant No.1 under registered sale deed dated 5-4-2004?
6. Whether plaintiff is entitled for obtaining decree for specific performance in respect of agreement of sale dated 14-1-1991?
7. What decree or order?
5. Though plaintiff got examined himself as P.W.1 and got marked as many as 8 documents Ex.P.1 to P.8 in support of his case, later failed to subject himself for cross- examination. Accordingly, the evidence of P.W.1 came to be discharged by order dated 8.10.2015. On behalf of 2nd defendant, 2nd defendant himself got examined himself as D.W.1, Later ow1 also remained absent and his son as a GPA holder of 2nd defendant filed application seeking to examine himself as a witness on behalf of 2nd defendant. Accordingly, oral testimony of D.W.1 came to be discarded. 2nd defendant's son got examined himself as D.W.2 and got marked as many as 9 documents Ex.D.1 to Ex.D.9 in support of 2nd defendant's case.
6. I have carefully scrutinized entire records before me. Heard arguments and also perused written arguments filed by 2nd defendant herein.
8 O.S. No.7183/20067. My findings on the above issues are as under:-
Issue No.1: In affirmative;
Issue No.2: In negative;
Issue No.3: In negative
Issue No.4: In affirmative;
Issue No.5: In affirmative;
Issue No.6: In negative;
Issue No.7: As per final order for the following reasons:
REASONS
8. Issue No.1 : It is the case of the plaintiff that, 1st
defendant being the owner of suit schedule property offered to sell the suit schedule property in favour of plaintiff for Rs.1,00,000/- and thereby executed agreement of sale dated 14.1.1991 in his favour and received entire sale consideration from the plaintiff herein. The proper person to deny this document is the 1st defendant himself. Whereas 1st defendant remained absent and placed exparte. 2nd defendant pleaded his ignorance about execution of alleged agreement of sale dated 14.1.1991 in favour of plaintiff by 1st defendant herein. Under such circumstances, the plaintiff's pleading that, 1st defendant executed sale agreement in his favour remained 9 O.S. No.7183/2006 unchallenged. Accordingly, I have answered Issue No.1 in the affirmative.
9. Issue No.2: It is the case of the plaintiff that , he has been put in possession of suit schedule property by 1st defendant herein in pursuance of sale agreement dated 14.1.1991. Whereas, 2nd defendant herein is asserting that he has purchased the property from 1st defendant herein under registered sale deed Ex.D.1. Further plaintiff himself stated in para No.6 of his plaint that, 1st defendant sold the suit schedule property in favour of 2nd defendant under a sale deed dated 5.4.2004 in violation of the status-quo order granted in the suit O.S. No.2152/1996. 2nd defendant's son, who got examined himself as D.W.1 got marked said original registered sale deed dated 5.4.2004, which is as per Ex.D.1. In this sale deed, at page No.7(i), there is a clear recital to the effect that the vendor i.e., 1st defendant has delivered all the relevant original title deeds along with the possession of the schedule property to the 2nd defendant herein, who is admittedly purchaser of the suit schedule property from the 1st defendant. This recital in Ex.D.1, which is a registered document is not at all rebutted by plaintiff herein by producing any documentary evidence or by subjecting himself for cross-examination. Under such circumstances, the contention taken by the plaintiff that, he was put in possession of suit schedule property as part performance of the agreement of sale dated 14.1.1991 also 10 O.S. No.7183/2006 appears baseless. Accordingly, I have answered Issue No.2 in the negative.
10. Issue No.3: This is plaintiff's suit for specific performance filed against defendants herein asserting that 1st defendant executed sale agreement in favour of plaintiff on 14.1.1991. Since as per lease-cum-sale agreement executed in favour of BDA by 1st defendant, 1st defendant was precluded from executing sale deed in favour of the plaintiff for a period of 10 years. Accordingly, he could not get the sale deed executed inspite of payment of entire sale consideration of Rs.1,00,000/- under the sale agreement dated 14.1.1991 to the 1st defendant herein. Admittedly as per lease-cum-sale agreement dated 24.2.1986, 1st defendant was precluded from executing sale deed in favour of the plaintiff herein, but not the plaintiff in seeking relief of specific performance under agreement dated 14.1.1991. In a suit for specific performance, the provision of Sec.16(c) of Specific Relief Act are mandatory. The duty casted on the plaintiff not only to establish his financial position with regard to payment of sale consideration but also his willingness i.e., conduct and mind set of the plaintiff to get the sale deed executed from the defendant. Plaintiff himself pleaded in para No.5 of the plaint that, he came to know that 1st defendant was making attempt to sell the suit schedule property for unlawful gain. Accordingly, he filed a suit in O.S. No.2152/1996. Hence, as on the year 1996 11 O.S. No.7183/2006 itself, plaintiff came to know that 1st defendant knowing fully well about the sale agreement executed in favour of plaintiff making efforts to sell the suit schedule property in favour of others. This conduct on part of 1st defendant amounts to denial on part of 1st defendant to sell the suit schedule property to the plaintiff. Inspite of the same, plaintiff not filed the suit seeking specific performance from the 1st defendant herein and only filed suit for permanent injunction. This attitude on part of plaintiff, who failed to file suit for specific performance in the year 1996 establishes that, he was not willing to get the sale deed executed from 1st defendant. As I have already stated under lease-cum-sale agreement, 1st defendant was precluded from the execution of sale deed in favour of plaintiff and plaintiff was never precluded from filing suit for specific performance. This conduct on part of plaintiff establishes that, plaintiff never intending to get the sale deed executed from the 1st defendant. That apart, there is absolutely no documentary evidence produced by the plaintiff to establish his readiness and willingness to perform his part of contract. Even though plaintiff had paid entire sale consideration under the agreement of the year 1991 , duty casted on the plaintiff to bear the stamp duty expenses and also initiate to get the sale deed executed from the 1st defendant, whereas plaintiff not made any such efforts nor placed any oral and documentary evidence in this regard. Inspite of threat of alienation by 1st defendant, plaintiff not at 12 O.S. No.7183/2006 all filed the suit for specific performance and only filed suit for permanent injunction seeking to restrain 1st defendant from alienating the suit schedule property. This itself establishes plaintiff's unwillingness to perform his part of contract under the agreement of the year 1991. That apart, plaintiff's suit is also barred by the provisions of limitation and also under Order 2 Rule 2 CPC, which requires plaintiff's to include the whole of the claim, which the plaintiff is entitled to make in respect of cause of action. If a plaintiff relinquished any portion of his claim, he shall not afterwords sue in respect of the portion so omitted or relinquished. When plaintiff's earlier suit O.S. No.2152/1996 was also based on sale agreement dated 14.1.1991, which is also suit document in this case and plaintiff claim in that case is that, 1st defendant is making efforts to sell the suit schedule property, the appropriate relief was the relief of specific performance. Plaintiff by claiming only relief of permanent injunction in earlier suit, now estopped from claiming relief of specific performance in this suit. Accordingly, plaintiff's suit is also barred by the provisions of Order 2 Rule 2 of C.P.C. Above all, plaintiff's conduct in filing such suit in the year 1996 established that, he was not ready to get the sale deed executed from the 1st defendant herein by paying necessary stamp duty and also by depositing court fee for appropriate relief. Accordingly, I have answered Issue No.3 in the negative.
13 O.S. No.7183/200611. Issue No.4: It is the case of the 2nd defendant that, he has purchased the suit schedule property after verifying the title documents of the plaintiff and also a precautionary measures by giving public notice to the general public with regard to his sale transaction with 1st defendant. Admittedly, the agreement dated 14.1.1991 relied upon by the plaintiff is not a registered document and further 2nd defendant is not a party to the said document. In this suit, plaintiff is only seeking relief of specific performance of the agreement of sale dated 14.1.1991 not seeking any declaration to declare the sale deed of 2nd defendant dated 5.4.2004 as null and void. Under such circumstances, the presence of 2nd defendant to adjudicate the controversy as stated in the plaint is not at all necessary. Accordingly, I have answered Issue No.4 in affirmative.
12. Issue No.5: 2nd defendant's son, who got examined himself as D.W.1, got marked as many as 9 documents including the original sale deed of 2nd defendant as per Ex.D.1 and also public notice as per Ex.D.9. Though plaintiff asserted that 2nd defendant purchased the suit schedule property during the pendency of the suit and hit by the doctrine of lispendency, plaintiff not placed any material in this regard. Plaintiff has filed this suit on 9.8.2006, whereas 2nd defendant purchased the suit schedule property under Ex.D.1 on 5.4.2004 i.e., 2 ½ years prior to this suit. When such being the 14 O.S. No.7183/2006 case, doctrine of lispendence is not at all attracted. Further before purchasing the suit schedule property, 2nd defendant has issued public notice as per Ex.D.9. Hence, he has made some efforts to ascertain about the earlier transaction if any. That apart subsequent to sale deed Ex.D.1, 2nd defendant got changed katha before BBMP as per Ex.D.2, paid taxes as per Ex.D.3 and also got sanctioned plan to put up construction over suit schedule property as per Ex.D.5. It is the case of the 2nd defendant that, he is in possession of suit schedule property by putting up construction in accordance with sanctioned plan Ex.D.5. Ex.D.5 was issued on 21.3.2007. That apart since the agreement in question being unregistered document, same will not be reflected in encumbrance certificate. The 2nd defendant also asserted that he verified in the concerned Sub Registrar office about any encumbrance over the suit schedule property and after satisfied with the title of 1st defendant, he purchased the property. Admittedly plaintiff has filed this suit after lapse of almost 2½ years from the date of purchase of suit schedule property by 2nd defendant from 1st defendant herein, and after lapse of 10 years from the date of his earlier suit in O.S.No.2152/1996. Hence, plaintiff's suit is also barred by limitation. Under such circumstances, 2nd defendant, who has paid huge amount under Ex.D.1 to the 1st defendant herein, is bonafide purchaser. That apart, plaintiff failed to cross-examine D.W.2 inspite of sufficient opportunity given to plaintiff, Accordingly, oral testimony of 15 O.S. No.7183/2006 D.W.2 and defense taken by 2nd defendant that, he is the bonafide purchaser remained unchallenged. Accordingly, I have answered Issue No.5 in the affirmative.
13. Issue No.6: Since plaintiff failed to establish his readiness and willingness to perform his part of contract and also plaintiff's suit is not only barred by limitation, but also the provisions of Order 2 Rule 2 of CPC and thereby disentitles the plaintiff from the reliefs claimed. Accordingly, I have answered Issue No.6 in the negative.
14. Issue No.7: in view of my finding on Issue No.1 to 6, I proceed to pass the following:-
ORDER Suit dismissed with costs.
Draw decree accordingly.
{Dictated to the Judgment Writer transcribed by her, corrected and then pronounced by me in open court this 4th day of April 2017} (M.LATHA KUMARI) XI ADDL.CITY CIVIL JUDGE BANGALORE CITY.16 O.S. No.7183/2006
ANNEXUERE List of witnesses examined for plaintiff:-
PW.1 Nitish N.Rohera List of documents exhibited for plaintiff:-
Ex.P.1 Agreement of sale dated 14.1.1991
Ex.P.2: Affidavit
Ex.P.3: Canara Bank Receipt for having paid
the money to BDA
Ex.P.4: Lease cum sale deed executed by BDA
in favour of 1st defendant
Ex.P.5: Possession certificate
Ex.P.6: GPA executed by 1st defendant in
favour of K.Devanani
Ex.P.7: Certified copy of order sheet in O.S.
No.2152/1996
Ex.P.8: Certified copy of sale deed dated
5.4.2004
List of witnesses examined for defendants :-
D.W.1: Sri..Sundar Raman 17 O.S. No.7183/2006 List of documents exhibited for defendants :-
Ex.D.1: Original sale deed executed by 1st defendant in favour of 2nd defendant pertaining to suit schedule property Ex.D.2: Katha certificate Ex.D.3 & 4: Tax paid receipts Ex.D.5: Sanctioned plan Ex.D.6: Receipt for having paid Rs.14,700/-
towards plan sanction.
Ex.D.7: Original absolute sale deed of 1st
defendant
Ex.D.8: Allotment letter dated 19.4.1985
Ex.D.9: Public notice published in Hindu
Newspaper dated 24.3.2004.
XI ADDL.CITY CIVIL JUDGE,
BAN