Bangalore District Court
Sri.Chagam Ramamohan Reddy vs Smt.Latha K Namboodiri on 6 February, 2018
IN THE COURT OF XLIV ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU (CCH-45).
DATED THIS THE 6th DAY OF FEBRUARY 2018.
: PRESENT :
Shri.SHIVARAMA.K, B.Com., LL.M.,
XLIV Addl.City Civil & Sessions Judge, Bengaluru.
O.S.NO.5504/2015
Plaintiff: Sri.Chagam Ramamohan Reddy,
S/o Sri.C.Chinna Pulla Reddy,
Aged about 42 years, R/at No.1-
415, Dwaraka Nagar, Ananthapur
- 515004, Andhra Pradesh.
[By Sri S.Sudarsana Reddy, Adv.]
-Vs-
Defendants: 1. Smt.Latha K Namboodiri, W/o
Sri.K.K.Namboodiri, Aged
about 50 years.
2. MS.Chithra.K.Namboodiri, D/o
Sri.K.K.Namboodiri, Aged
about 29 years.
Both residing at No.55, 21st
Main Road, 5th 'A' Cross,
MCHS Colony, BTM II Stage,
Bangalore - 560 076.
2
O.S.No.5504/2015
Also available at
1. No.1, 4th Cross, 20th Main,
BTM II Stage, Bengaluru -
560 076.
2. C/o Kristal Projects India
Ltd., Kristal
Tavern,Bellandur, Outer
Ring Road, Bengaluru - 560
037.
[By Sri.B.L.Sanjeev, Advs.]
Date of Institution : 24.06.2015
Nature of the suit : For Specific Performance.
Date of recording
of evidence : 7.11.2017
Date of Judgment : 06.02.2018
Total Duration : Day/s Month/s Year/s
12 07 02
JUDGMENT
Plaintiff has filed this suit for the relief of specific performance of the registered agreement to sell dated:
18.7.2011 by directing the defendants to comply the terms of the agreement and to convey the title by 3 O.S.No.5504/2015 executing sale deed and by handing over the vacant possession of the schedule property in favour of the plaintiff and for permanent injunction to restrain the defendants from alienating the suit property.
2. Schedule 'A' property is the description of the entire property, schedule 'B' property is the undivided share conveyed in favour of the plaintiff, schedule 'C' property is the constructed portion agreed to be conveyed in favour of the plaintiff.
3. It is the case of the plaintiff that, defendant No.2 is the daughter of defendant No.1 and they agreed to sell the schedule 'B' and 'C' property in favour of the plaintiff for a total consideration of Rs.18,00,000/- and had entered into an agreement of sale dated: 18.7.2011. Further, on the date of agreement, the advance consideration of Rs.16,00.000/- was paid and the balance of Rs.2,00,000/- was agreed to be paid at the time of 4 O.S.No.5504/2015 execution and registration of the sale deed. Pursuant to the agreement, the plaintiff in number of times expressed his readiness and willingness to complete the transaction, but, the defendants had postponed the same. Hence, the plaintiff got issued legal notice dated: 5.6.2015 calling upon the defendants to execute the registered sale deed by receiving balance consideration of Rs.2,00,000/-. After receipt of the notice, the plaintiff learnt that the defendants tried to alienate the suit property in favour of the 3rd parties. Hence, the suit came to be filed.
4. The defendants denied the averments of the plaint and no specific defence have been taken and it is contended that the suit of the plaintiff is opposed to all canons of law, principles of equity and norms of good conscience.
5. On the basis of the material proposition of fact and law affirmed by the plaintiff and denied by the defendant, this Court has framed the issues on 10.2.2017 5 O.S.No.5504/2015 and subsequently on 7.11.2017 this Court has re-casted the issues as under:
1. Whether plaintiff proves that defendants had entered into an agreement dated: 18.7.2011 for sale of suit 'B' and 'C' schedule properties for a total consideration of Rs.18,00,000/-
and had received part consideration of Rs.16,00,000/- ?
2. Whether he further proves that defendants had agreed to execute the sale deed within eleven months from 18.7.2011 by accepting balance consideration of Rs.2,00,000/-?
3. Whether he further proves that he was and is ready and willing to perform his part of contract?
4. Whether plaintiff is entitled for specific performance of the contract?
5. Whether plaintiff is entitled for consequential relief of permanent injunction to restrain the defendants from alienating the suit property?6
O.S.No.5504/2015
6. To what decree or order?
6. To prove the case, the plaintiff is examined as PW.1 and got marked Ex.P1 to P7 documents. A witness is examined as P.W.2 and got marked Ex.P3(e) document. Defendant did not examine any witness and has not marked any documents.
7. Heard the arguments.
8. My findings on the above issues are:
Issue No.1 : In affirmative
Issue No.2 : In affirmative
Issue No.3 : In affirmative
Issue No.4 : In affirmative
Issue No.5 : As per final order,
for the following:
REASONS
9. ISSUE NOs.1 & 2: In order to avoid the
repetition of facts and as both the issues are inter- 7
O.S.No.5504/2015 connected, those are taken together for discussion.
10. Plaintiff (PW.1) has filed affidavit in the form of his evidence in chief. He has reiterated the facts stated in the plaint in the affidavit filed.
11. In support of the oral evidence, he has produced Ex.P1 sale agreement dated: 18.7.2011. On perusal of the same, it appears that defendants have agreed to sell the suit property in favour of the plaintiff for a total consideration of Rs.18,00,000/- and had received Rs.16,00,000/- as advance consideration and agreed to receive the balance consideration of Rs.2,00,000/- at the time of registration of the sale deed. It is also stated in the agreement that on the date of agreement, plaintiff has paid a sum of Rs.16,00,000/- to the defendants. Ex.P2 is addendum to the agreement to sell dated: 18.7.2011. According to P.W.1, the defendants have executed the addendum to the 8 O.S.No.5504/2015 agreement to sell on 9.9.2012 explaining her difficulties to execute the sale deed and extended the time for completion of the transaction. One N.Srikanth (P.W.2) had given evidence that in his presence both the parties have signed Ex.P3 and he has also attested the signature to the document. Further, defendants have acknowledged the receipt of the amount from the plaintiff. The unchallenged oral evidence of P.W.1 and 2 coupled with Exs.P1 and P2 documents are sufficient to hold that the defendants had entered into an agreement to sell and agreed to execute the sale deed within 11 months from 18.7.2011. Further, in Ex.P3 addendum to the agreement dated: 9.11.2012 it is stated that defendant No.1 has agreed to execute the sale deed within 11 months from 18.6.2012. In Ex.P2 encumbrance certificate, it is stated with regard to the agreement of sale executed and agreed to execute the sale deed within 11 months from 18.7.2011 by receiving 9 O.S.No.5504/2015 balance consideration of Rs.2,00,000/-. It is contended by the learned counsel for the plaintiff that there is a presumption with regard to the registered document that it was validly executed. In support of the contention counsel relies the judgment reported in AIR 2006 Supreme Court 3608, Prem Singh and others Vs. Birbal and others. In the said judgment Hon'ble Apex Court has held that there is a presumption that a registered document is validly executed. A registered document therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. It is further contended by the counsel that the conduct of defendant plays an important role and in the absence of specific evidence, held, the trial Court has to draw adverse inference. Section 114
(g) of Indian Evidence Act contemplates that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds 10 O.S.No.5504/2015 it. In support of the contention counsel relies the judgment reported in (2010)7 Supreme Court cases 717, Laxman Tatyaba Kankate and another Vs. Taramati Harishchandra Dhatrak. In the said judgment Lordships have held that in the absence of specific evidence the Court has to draw adverse inference against the person who withholds the same. In the case in hand, even though a contention is taken that the suit is not maintainable in law or on facts and the plaintiff had filed the suit with an intention to grab the suit property and there is no bonafide on the part of the plaintiff in approaching the Court and plaintiff is guilty of suppressio vari and suggessio falsie, the defendant did not enter the witness box to prove the same. Hence, adverse inference could be drawn against the defendant. Therefore, I answer these issues in affirmative.
12. Issue Nos.3 & 4: In order to avoid the repetition of facts and as both the issues are inter- 11
O.S.No.5504/2015 connected, those are taken together for discussion.
13. In para - 7 of the affidavit filed in the form of his evidence in chief, P.W.1 has deposed that he had issued notice calling upon the defendants to execute the sale deed by receiving balance consideration of Rs.2,00,000/-. Further, P.W.1 has expressed his readiness and willingness to complete the transaction in innumerable occasions. In Ex.P4 notice dated: 8.5.2015 in para - 2 it is stated that the plaintiff was ready and willing to complete the transaction and he had expressed the same in innumerable occasions. Further, in the notice, the defendants were called upon to execute the sale deed. Exs.P5 and 6 are the postal receipts and acknowledgements for having sent the notice by RPAD and received notice by the defendants. Ex.P7 is the returned postal cover. The un-challenged oral and documentary evidence stated above is sufficient to hold that the plaintiff was and is ever ready and willing to 12 O.S.No.5504/2015 perform his part of contract. It is contended by the Learned Counsel for the plaintiff that since the defendants did not enter the witness box to prove his defence, adverse inference has to be drawn against the defendants that they have no case. In support of the contention counsel relies the judgment reported in (2010)7 Supreme Court Cases 717, Laxman Tatyaba Kankate and another Vs. Taramati Harishchandra Dhatrak. In the said judgment Hon'ble Apex Court has held that in the absence of specific evidence, trial court has to draw adverse inference against the defendants. Further, the conduct of the parties plays an important role. In the case in hand, the defendants did not reply to the notice nor entered the witness box to prove their case. Hence, the principle laid down in the judgment cited is applicable to the facts of the case in hand. It is further contended by the Learned Counsel for the plaintiff that since Ex.P1 agreement to sell is a registered document presumption 13 O.S.No.5504/2015 has to be drawn that the document is validly executed. It is also contended by the Learned Counsel for the plaintiff that the attested witnesses to the document need not be examined. In support of the contention counsel relies the judgment reported in AIR 1996 Supreme Court 761, Smt.Hans Raji Vs. Yosodanand. In the said judgment it is held that sale deed attested witnesses need not be examined since, Section 68 would not cover such transaction. Further, it is contended that since the registered document has not been cancelled it binds parties. In support of the contention Counsel relies the judgment reported (1985) 1 Supreme Court Cases 198, between Ramti Devi (Smt.) Vs. Union of India. In the said judgment it is held that until the document is avoided or cancelled by proper declaration, the duly registered document remains valid and binds the parties. In view of the principle laid down in the judgment cited above and the facts involved in the case, the plaintiff is 14 O.S.No.5504/2015 entitled for specific performance of the contract. Further, out of the sale consideration of Rs.18,00,000/-, on the day of agreement itself ie., on 18.7.2011, plaintiff had paid a sum of Rs.16,00,000/- as advance consideration. Hence, the major portion of the consideration amount has already been paid and the defendants have enjoyed the said money from the said date. Further, knowing fully well the defendants have not cross-examined Pw.1 and had not adduced any evidence. Further, it appears in Ex.P1 agreement that the parties shall complete the sale within 11 months from the date of agreement. Since, the defendants find difficult to execute the sale deed an addendum to the agreement to sell dated: 18.7.2011 came to be executed on 9.11.2012 vide Ex.P3. It is stated in Ex.P3 that the vendor shall after clearing the bank loan from Federal Bank after intimating the purchaser about the closure of loan shall execute and register the sale deed. As per Ex.P3 the 15 O.S.No.5504/2015 time was extended for further period of 11 months from 18.6.2012. Therefore, I feel plaintiff is entitled for specific performance of contract on that ground also in view of Section 20 of Specific Relief Act. Further, the defendants did not take any action in law to get the agreement of sale cancelled by proper declaration. Hence, the duly registered agreement remained valid and it binds the parties. Accordingly, I answer issues No.3 and 4 in affirmative.
14. Issue No.5: Plaintiff sought to restrain the defendants from alienating the suit property by an order of injunction. Section 52 of T.P.Act puts an embargo on the parties that during the pendency of the suit, the property involved in the suit cannot be transferred. Hence, any transfer made amounts to mis-pendency. Since, a direction been issued to the defendants to execute the sale deed the defendants are not entitled to alienate the same. Hence, plaintiff is entitled for 16 O.S.No.5504/2015 permanent injunction as sought. Accordingly, I answer issue No.5 in affirmative.
15. Issue No.6: Even though, the written statement been filed, the defendants did not attempt to prove the case by entering the witness box. Hence, I feel plaintiff is entitled for cost of the suit. In view of the discussions made above, I proceed to pass the following order:
ORDER Suit is decreed with cost.
Defendants are directed to execute the sale deed as per agreement dated:
18.7.2011 and the addendum to the agreement dated: 9.11.2012 within two months. Further, defendants are restrained by an order of permanent injunction from alienating the suit property in favour of the 3rd parties till the sale deed been executed in favour of the plaintiff. In case, the defendants failed to execute the sale deed 17 O.S.No.5504/2015 within stipulated period, the plaintiff is at liberty to get the sale deed got executed through the process of the Court at the cost of the defendants and the plaintiff shall deposit the balance consideration of Rs.2,00,000/- in the office of this Court within the said period and shall intimate the same to the defendants.
Draw decree accordingly.
(Dictated to the Judgment Writer, computerized by her, corrected, signed and then pronounced by me in the open Court on this the 6th day of February, 2018).
(SHIVARAMA.K) XLIV ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFF:
PW.1 : Chagam Ramamohan Reddy LIST OF WITNESSES EXAMINED FOR DEFENDANT:
- Nil -18
O.S.No.5504/2015 LIST OF DOCUMENTS MARKED FOR PLAINTIFF:
Ex.P1 : Agreement of sale dtd: 18.7.2011 Ex.P2 : Encumbrance certificate Ex.P3 : Addendum agreement dtd:9.11.2012 Ex.P3(a) To (e) : Signatures on Ex.P3 Ex.P4 : Office copy of legal notice dtd:5.6.2015 Ex.P5 : Six postal receipts Ex.P6 : Four postal acknowledgements Ex.P7 : Two returned postal covers LIST OF DOCUMENTS MARKED FOR DEFENDANT:
- Nil -
XLIV ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU.19
O.S.No.5504/2015 1/2/2018:
JUDGMENT PRONOUNCED IN OPEN
COURT (VIDE SEPARATE
JUDGMENT)
(SHIVARAMA.K)
XLIV ADDL.CITY CIVIL &
SESSIONS JUDGE, BENGALURU.
20
O.S.No.5504/2015
Apart from that, the plaintiff intends to change his name.
Therefore, this Court cannot grant the declaration with regard to the proposed new name. Hence, plaintiff has failed to prove that, his name is 'Nihal Akash Aruvapalli'.
12. Since the plaintiff has failed to prove the relief of declaration with regard to the proposed new name, he is not entitled for a direction to defendant Nos.1 to 5 to 21 O.S.No.5504/2015 make necessary changes in the records maintained by the defendants. Hence, I answer point Nos.1 and 2 in the negative.