Bangalore District Court
Smt.Sowbhagya. D vs Sri.M.Ramesh on 21 June, 2018
IN THE COURT OF THE V ADDL. CITY CIVIL JUDGE,
AT BANGALORE CITY.
(CCH-13)
DATED THIS THE 21st DAY OF JUNE, 2018
PRESENT
Smt.Nagaveni, B.A.,LL.B.
V ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE
O.S.NO.9471/2015
PLAINTIFFS: 1. Smt.Sowbhagya. D
W/o Sri.Gajanana,
Aged 41 years, r/at
No.9, 1st Phase, 2nd main road,
Postal Colony, Sanjaynagar,
Bangalore-560 094.
2. Smt.Nalina Narasimha
W/o Sri.Narasimha
Aged 37 years, r/at
NO.19/20, 3rd floor,
2nd main, Ayyappa Temple road,
Hebbal Kempapura,
Bangalore-560 024.
(By Sri.D.M.Gururaj, Advocate)
/VS/
DEFENDANTS: 1. Sri.M.Ramesh
S/o Sri. Muniswamy
Aged about 45 years,
2. Smt.Manjula
W/o Sri M.Ramesh
Aged about 31 years,
Both are r/at Gobhawan D.No.G-2,
37,38, 5th main, 5th cross,
New BEL road, Chikkamaranahalli,
Bangalore-560 054.
2 O.S.No.9471/2015
Date of Institution of the 20-11-2015
suit
Nature of the suit (suit on Specific Performance
pronote, : suit for declaration
and possession ,suit for
injunction, etc.)
Date of Commencement of 08-09-2016
recording of evidence
Date on which judgment was 21-06-2018
Pronounced
Duration Years Months Days
02 07 01
( NAGAVENI )
V ADDL.CITY CIVIL JUDGE
BANGALORE
*****
JUDGMENT
The plaintiffs have filed the suit for Specific Performance praying to direct the defendants to execute and register a sale deed conveying the suit schedule property absolutely in favour of the plaintiffs or their nominees in terms of sale agreement dated 23/04/2014 and direct the defendants to put the plaintiffs in possession of the suit schedule property and in the event of the defendants refusing to execute and register the sale deed in favour of plaintiffs or their 3 O.S.No.9471/2015 nominees, direct any officer of this Court to execute and register the sale deed conveying the suit schedule property absolutely in favour of the plaintiffs or their nominees in possession of the same on the plaintiffs depositing the balance sale consideration of Rs.15,75,000/- and in the alternative in the event this Court concludes that the plaintiffs are not entitled to the reliefs claimed above, this court may be pleased to direct defendants to pay a sum of Rs.20,00,000/- to the plaintiffs alongwith interest at the rate of 24% p.a calculated from 23/04/2014 till the date of payment of the same by way of refund of the amount paid by the plaintiff as advance sale consideration and such other reliefs.
.2. The brief facts of the plaint averments are as under:
The defendants are the absolute owners of the property premise bearing No.48, measuring 30 feet x 35 feet constructed in Sy.No.1/1, situated at 4 O.S.No.9471/2015 Chikkamaramahalli village, Kasaba Hobli, Bangalore North Taluk now Bruhat Bengaluru Mahanagara Palike Ward No.100, bearing Corporation No.BMP/REV/2013-14/KC/842511 having khatha PID No.100-243-48, new municipal No.48 i.e., suit schedule property. The plaintiffs have entered into a registered agreement of sale dated 23/04/2014 with the defendants for purchase of the suit schedule property for a valuable consideration of Rs.35,75,000/-
Out of total sale consideration, the plaintiffs on the date of execution of sale agreement, have paid to the defendants a sum of Rs.20,00,000/- as advance sale consideration, Rs.8,00,000/- by way of cash, Rs.5,65,000/- by way of cheque bearing No.363702 dated 23/04/2014 drawn on State Bank of Mysore, Mathikere branch and Rs.6,35,000/- by way of cheque bearing No.683484 dated 23/04/2014 drawn on State Bank of India, Ganganagar branch. The defendants have acknowledged receipt of advance amount and 5 O.S.No.9471/2015 have encashed the cheques. Under the terms of the said agreement, the balance consideration was agreed to be paid to the defendants at the time of execution of sale deed in respect of the suit schedule property. In terms of the sale agreement entered between the plaintiffs and defendants, the defendants were required to execute the sale deed either in favour of the plaintiff or their nominees within six months from the date of sale agreement. Upon receipt of the advance sale consideration, the defendants have handed over all original deeds pertaining to the suit schedule property to the plaintiff. After execution of the sale agreement, the plaintiffs had requested the defendants to execute and registered the sale deed in favour of the plaintiffs by receiving the remaining sale consideration. But the defendants for one or the other reason kept on prolonging the matter and are clandestinely trying to sell schedule property to third parties with an intention of committing breach of the agreement for 6 O.S.No.9471/2015 the purpose of making illegal gains by selling the property for higher value. After knowing the intentions of the defendants constrained to issue a legal notice dated 17/03/2015 calling upon the defendants to execute and register the sale deed in favour of the plaintiffs. The said notice was duly served upon plaintiffs on 01/04/2015. The defendants despite of receipt of legal notice dated 17/03/2015 have not replied the same nor come forward to execute and register the sale deed. Having received no reply and after drawing a blank from the defendants, the plaintiffs were constrained to issue another legal notice dated 29/10/2015 calling upon the defendants to execute and register the sale deed by receiving the balance sale consideration. The said notice was also served on defendants on 30/10/2015. The defendants despite of receiving the second legal notice also did not turn up, but on the other hand have intensified their attempts to hurriedly and clandestinely dispose of the 7 O.S.No.9471/2015 property. Further contends that plaintiffs are ready and willing and have always been ready and willing to perform their remaining part of contract. The plaintiffs have arranged the remaining sale consideration from their well wishers and has agreed to pay the amount as and when required by the plaintiffs. The said person have also sworn to an affidavit stating that he is ready to pay amount to the plaintiffs as and when required by the plaintiffs. The defendants have failed to perform their part of contract by not executing and registering relevant conveyance in favour of the plaintiffs. The plaintiffs are always ready and willing and continues to be ready and willing to perform their part of the obligation under the said agreement. Defendants have neglected to complete the sale transaction in terms of the sale agreement dated 23/04/2014. The cause of action for the suit arose on 23/04/2014 when defendants entered the sale agreement with the plaintiffs and received and advance 8 O.S.No.9471/2015 sale consideration from the plaintiff and on 17/03/2015 when the plaintiffs issued legal notice to the defendants and on 01/04/2015 when the said notice was served upon the defendants and on 29/10/2015 when plaintiffs issued legal notice for the second time to the defendant and on 30/10/2015 when the defendants received the legal notice sent by the plaintiff and on various other dates when the plaintiffs contacted the defendants and offered to pay the balance sale consideration and demanded performance of the defendants' part of the contract. Hence, constrained to file the suit.
3. Inspite of service of summons, defendants have appeared through their counsel and filed written statement as under:
The entire plaint averments denied as false except the admitted facts. It is admitted that defendants are the absolute owners of the suit schedule property. It is stated that defendants never intended to sell the suit 9 O.S.No.9471/2015 schedule property to anyone much less to the plaintiff. The said sale agreement executed is nothing but nominal sale agreement as a security purposes for the loan transactions with between the plaintiff and defendants. These defendants borrowed a sum of Rs.12 lakhs from the plaintiff and an agreement of sale came to be entered for the security purpose in respect of the suit schedule property with an understanding between the parties that after the loan was cleared from the defendants and in turn the plaintiff reconvey the executing the cancellation of the said sale agreement. But even after the defendants cleared the said loan to the plaintiff, the plaintiff failed to cancel the said sale agreement and had filed this suit just to make wrongful gains with a malafide intention just to knock off the valuable property of the defendants. Further contends that said transaction is purely a loan transaction. The defendants had never received Rs.8,00,000/- by way of cash. The defendants 10 O.S.No.9471/2015 borrowed only Rs.12,00,000/- only and as a security the said nominal sale agreement came to be executed and not Rs.20,00,000/-.The loan was given to the defendants by the plaintiff only on the condition that the original document to be kept in the custody of the plaintiff and a nominal sale agreement was agreed to execute as a security purpose and then only the plaintiff came forward to lend the said loan to the defendants. However, even after the defendants cleared the said loan the plaintiff failed to return back the original documents and also failed to conceal the said sale agreement. Further contends that the defendants never intended to sell any property much less the schedule property to anyone much less to the plaintiff at any point of time. The said transaction is purely a loan transaction and the question of ready and willing to perform their remaining part of the contract does not arise. There is no cause of action for the suit. The suit is not properly valued and court fee 11 O.S.No.9471/2015 is not correctly valued. Hence, prayed that dismiss the suit.
4. On the basis of the above pleadings, the following issues are framed :
1) Whether the plaintiffs prove that the defendants have agreed to sell the suit schedule property for a total consideration of Rs.37,75,000/- and entered into agreement of sale dated 23/04/2014 ?
2) Whether the plaintiffs prove that they are always ready and willing to perform their part of contract ?
3) Whether the plaintiffs prove that they are entitled for refund of amount of Rs.20,00,000/- alongwith interest at 24%p.a from 23/04/2014 ?
4) Whether the defendants prove that sale agreement is executed as a security for the loan advanced by plaintiff ?
5) Whether the defendants further prove that subsequently after repayment of loan, plaintiff failed to cancel the agreement ?
6) Whether the defendant proves that suit filed by the plaintiff is not maintainable ?
7) Whether the defendant proves that suit of the plaintiff is undervalued and the court fee paid is insufficient ?12 O.S.No.9471/2015
8) Whether plaintiffs are entitled for the reliefs sought ?
9) What order or decree ?
5. In order to prove the case, the plaintiff No.1 herself got examined as PW-1 and got marked Ex.P1 to Ex.P11 and closed her side. One witness examined as PW-2 and closed their side. The defendant No.1 himself examined as DW-1 and closed their side.
6. Heard arguments on plaintiff's side. No arguments on defendant's side.
.7. My findings on the above issues are as follows:
Issue No. 1: In the Affirmative Issue No. 2: In the Affirmative Issue No. 3: In the Negative Issue No. 4: In the Affirmative Issue No. 5: In the Affirmative Issue No. 6: In the Negative Issue No. 7: In the Negative Issue No. 8: In the Affirmative Issue No. 9: As per final order for the following:13 O.S.No.9471/2015
REASONS .8. Issue Nos.1 to 5: These issues are taken together for common discussion to avoid repetition of facts.
PW-1, Soubhagya D., the plaintiff No.1 in her affidavit evidence has reiterated the plaint averments. To support her affidavit evidence, she has produced Ex.P1, sale agreement dated 23/04/2014, Ex.P2 is the certified copy of the partition deed dated 24/08/1950, Ex.P3 is the sale deed dated 24/03/2007, Ex.P4 is the General Power of Attorney dated 19/05/1988, Ex.P5 is the three Encumbrance Certificates, Ex.P6 is the two khatha certificates, Ex.P7 is the two khatha extracts, Ex.P8 is the khatha registration certificate, Ex.P9 is the seven tax paid receipts, Ex.P10 is the copy of the legal notice dated 31/03/2015, Ex.P10(a) and 9(b) are the two postal acknowledgements, Ex.P11 is the copy of the legal notice dated 29/10/2015, Ex.P11(a) is the 14 O.S.No.9471/2015 postal receipt, Ex.P11(b) is the two postal acknowledgements.
9. According to plaintiffs, defendants are the absolute owners of the suit schedule property. The plaintiffs have entered into a registered agreement of sale dated 23/04/2014 with the defendants for purchase of the suit schedule property for a valuable consideration of Rs.35,75,000/-. Out of total sale consideration, they have paid to the defendants a sum of Rs.20,00,000/- as advance sale consideration, Rs.8,00,000/- by way of cash, Rs.5,65,000/- by way of cheque bearing No.363702 dated 23/04/2014 drawn on State Bank of Mysore, Mathikere branch and Rs.6,35,000/- by way of cheque bearing No.683484 dated 23/04/2014 drawn on State Bank of India, Ganganagar branch and Rs.3,00,000/- by way of cash on 23/04/2014. The defendants have acknowledged receipt of advance amount and have encashed the cheques in terms of the sale agreement. The 15 O.S.No.9471/2015 defendants were required to execute the sale deed either in favour of the plaintiff or their nominees within six months from the date of sale agreement and at that time they have handed over all original deeds pertaining to the suit schedule property to them. After lapse of 6 months, the plaintiffs have requested the defendants to execute and registered the sale deed in favour of the plaintiffs by receiving the remaining sale consideration. But the defendants for one or the other reason kept on prolonging the matter and are clandestinely trying to sell schedule property to third parties with an intention of committing breach of the agreement for the purpose of making illegal gains by selling the property for higher value. Thereafter, plaintiffs issued a legal notice dated 17/03/2015 calling upon the defendants to execute and register the sale deed in favour of the plaintiffs. The said notice was duly served upon plaintiffs on 01/04/2015. The defendants despite of receipt of legal notice dated 16 O.S.No.9471/2015 17/03/2015 have not replied the same nor come forward to execute and register the sale deed. Again they have issued another legal notice dated 29/10/2015 calling upon the defendants to execute and register the sale deed by receiving the balance sale consideration. The said notice was also served on defendants on 30/10/2015. The defendants despite of receiving the second legal notice also did not turn up, but on the other hand have intensified their attempts to hurriedly and clandestinely dispose of the property.
The plaintiffs are ready and willing and have always been ready and willing to perform their remaining part of contract and they arranged the remaining sale consideration from their well wisher by name R.Chandrashekar. But the defendants have failed to perform their part of contract. To support he said contention, the plaintiffs have examined PW-2, R.Chandrashekar. PW-2 in his affidavit evidence deposed that he has agreed to pay the remaining 17 O.S.No.9471/2015 balance sale consideration amount to the plaintiffs by way of handloan. In the cross-examination of PW-2, nothing is elicited by the defendant side. Further, PW- 2 has produced his bank statement as per Ex.P12 and Ex.P13. The said bank statement reveals that PW-2 having sufficient funds to give handloan to the plaintiff.
10. Per contra, it is the specific case of the defendants that they admitted that they are the absolute owners of the suit schedule property. They denied the sale transaction, but it is the case of the defendants that they had borrowed the same as loan of Rs.12 lakhs from the plaintiffs and nominal agreement of sale came to be entered for the security purpose in respect of the suit schedule property with understanding between the parties that after the loan was cleared from the defendants and in turn the plaintiffs to re-convey by executing the cancellation of the said sale agreement. After discharge of loan, the 18 O.S.No.9471/2015 plaintiffs have failed to cancel the nominal sale agreement. The defendants have pledged all the original documents for the said loan as security purpose and also by executing nominal sale agreement, the loan was given to the defendants by plaintiff only on the condition that original documents were to be kept in the custody of the plaintiff. The transaction made between the plaintiff and defendant were purely loan transaction. To support their contention defendants have not produced any materials.
11. On perusal of documents produced by the plaintiff, it reveals that Ex.P1, sale agreement dated 23/04/2014, it reveals that defendants have executed the said registered sale agreement in favour of the plaintiffs with respect to suit schedule property. According to defendants, they executed the sale agreement only for security purpose to obtain the loan of Rs.12 lakhs from the plaintiff. But in recital of 19 O.S.No.9471/2015 Ex.P1, i.e., registered sale agreement dated 23/04/2014 nowhere it was stated for the purpose of security, the defendants have executed the sale agreement. It is admitted fact that DW-1 in his cross- examination admitted that they went to Sub-Registrar office at the time of execution of Ex.P1. Further admitted that for his information return the Ex.P1. Further deposed that he has not repaid the loan amount to the plaintiff. Again he stated that he paid the interest upto date. In cross-examination of DW-1, he has deposed that only he executed Ex.P1 for obtaining the loan amount from the plaintiff. But no materials are produced by the defendant to show that for the purpose of security they have executed the sale agreement in favour of the plaintiffs. Further in cross- examination of DW-1 deposed that during the year 2011, there was financial necessity for the purpose of business. Ex.P2 is the certified copy of the partition deed dated 24/08/1950. There is no dispute with 20 O.S.No.9471/2015 respect to the ownership of the defendants in respect of the suit schedule property. Ex.P3 is the registered sale deed dated 24/03/2007. The said recital of the sale deed reveals that mother of the defendant No.1 executed the sale deed in favour of the defendants in respect of the suit schedule property. Ex.P4 is the General Power of Attorney executed by one Govindaraju in favour of the Rajamma i.e., mother of defendant No.1 Ex.P5 is the Encumbrance Certificate three in numbers, Ex.P6 is the khatha certificate two in numbers. In said khatha certificate, defendants' name mentioned as the owner and holders, Ex.P7 is the khatha extract. In the said document also holders name mentioned as that of defendants. Ex.P8 is the khatha registration certificate. In the said document mentioned the name of the mother of defendant No.1. Ex.P9 is the tax paid receipt seven in numbers. In the said document also holders name mentioned as the name of the defendants. Ex.P10 is the notice issued 21 O.S.No.9471/2015 by the plaintiffs to defendant, contents of the notice involve the plaint averments. The same has been served to the defendants as per Ex.P10(a) and (b). It is pertinent to note that defendants have not given any reply to the said notice. Further, the plaintiffs have given one more notice on 29/10/2015 to the defendants. In the said notice also involved plaint averments. The same notice has been served to the defendant as per Ex.P11(b). After service of notice, no reply was sent by the defendants. The documents produced by the plaintiff are supporting their case. Hence, plaintiffs are proved that defendants are owner of suit schedule property. Further, plaintiff counsel decision reported in (2017) 4 S.C.C 654 in the case of A.Kanthamani V/s Nasreen Ahmed wherein it is held that :
C. Contract and Specific Relief- Specific Relief Act, 1963- S.16(c)- Readiness and willingness to perform essential terms of contract- Financial readiness- Question of fact- Proof- Purchaser need not prove 22 O.S.No.9471/2015 possession of sufficient money or vouch for specific scheme for financing transaction - Payment of more than half of sale consideration made in advance to vendor defendant and loan taken from LIC for payment of balance amount by his/her part of agreement. The above decision is supporting the case of the plaintiff. In this case, plaintiffs have examined PW-2 and the said PW-2 deposed that he is ready to give finance support to the plaintiff to pay the remaining sale consideration amount. Ex.P12 and Ex.P13, the account extract are supporting the case of the plaintiff. Further the said documents reveals that PW-2 having sufficient income to give the loan to the plaintiff. Further plaintiff counsel relied on the decision reported in (2012) 5 S.C.C 403 in the case of Prakash Chandra V/s Narayan. The above decision is also supporting the case of the plaintiff. In this case also the defendants have taken different version stating that they had obtained the loan from the plaintiff and for security purpose of the loan, they executed Ex.P1, 23 O.S.No.9471/2015 but no materials are produced by the defendants to show that they obtained loan from the plaintiff and for the purpose of security, they had executed Ex.P1 i.e., registered sale agreement in favour of the plaintiff. Further, it is the specific contention of the defendant that they pledged the original documents in respect of the suit schedule property to the plaintiff till discharge of the loan. Further, it is the case of the defendant that till discharge of loan, the plaintiff have not reconveyed the deed. But no materials produced by the defendant to show that they discharged the loan. It is pertinent to note that in the written statement, the defendants have taken contention that they discharged the loan, but in cross-examination of DW-1, he deposed that he is due of loan amount and only interest paid upto date. Hence, defendants have taken different version in his written statement and deposition with regard to discharge of loan amount. Further, defendants have not given specification with 24 O.S.No.9471/2015 regard to that he was not given reply to the notice issued by the plaintiff. Ex.P1 i.e., sale agreement dated 24/02/2011 clearly reveals that defendants have agreed to sell the suit schedule property for total sale consideration of Rs.35,75,000/- and they entered into agreement of sale dated 24/04/2014 and on that day they received the advance amount of Rs.20,00,000/- out of Rs.35,75,000/-. Further, plaintiffs have proved that they are always ready and willing to perform their part of contract. The notice sent to the defendant as per Ex.P10 and Ex.P11 reveals that they were always ready and willing to perform their part of contract. Further, defendants have utterly failed to prove that sale agreement is executed as security to loan advanced by the plaintiff and after repayment of loan, the plaintiffs have failed to cancel the agreement. Hence, I answer issue Nos.1,2,4 and 5 in the Affirmative.25 O.S.No.9471/2015
The plaintiffs have proved that defendants and themselves have entered into registered sale agreement dated 23/04/2014 in respect of the suit schedule property. Hence, the question of refund of amount of Rs.20,00,000/- with interest from the defendants does not arise at all. Accordingly, I answer issue No.3 in the Negative.
12. Issue No.6: It is the specific contention of the defendants that suit is not maintainable in the eye of law. The defendants have not produced any materials to show that suit of the plaintiff is not maintainable. Further, defendants have not taken any version with respect to maintainability of the suit. Hence, defendants have utterly failed to prove that suit is not maintainable. Accordingly, I answer issue No.6 in the Negative.
13. Issue No.7: It is the specific contention of the defendants that suit of the plaintiff is not valued and 26 O.S.No.9471/2015 court fee paid is insufficient. On perusal of the valuation slip, it reveals that suit is valued at Rs.35,75,000/- under Sec.40(a) of Karnataka Court Fees and Suits Valuation Act, 1958 and paid the court fee. As per Ex.P1 i.e., registered sale agreement, sale consideration amount is mentioned as Rs.35,75,000/-. Hence, plaintiff has paid the correct court fee. No materials produced by the defendant to show that insufficient court fee paid by the plaintiff. Hence, defendants have utterly failed to prove that plaintiffs have paid the insufficient court fee. Accordingly, I answer issue No.7 in the Negative.
14. Issue No.8: In view of my findings given on issue Nos.1 to 7, plaintiffs are entitled for suit relief as sought for. Accordingly, I answer issue No.8 in the Affirmative.
15. Issue No.9 : In view of my answers to issue Nos.1 to 8, I pass the following :
27 O.S.No.9471/2015
ORDER The suit of the plaintiffs is decreed with costs.
It is directed to the defendant to execute the registered sale deed conveying the suit schedule property in favour of the plaintiffs or their nominees in terms of the sale agreement dated 23/04/2014 after receiving remaining sale consideration amount as per the sale agreement dated 23/04/2014 within three months. If the defendant fails to execute the sale agreement dated 23/04/2014, the plaintiffs are at liberty to proceed against the defendant to execute the sale deed as per due process of law after depositing the remaining sale consideration amount.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open court this the 21st day of June, 2018).
( NAGAVENI ) V ADDL.CITY CIVIL JUDGE, BANGALORE.
**** ANNEXURE List of witnesses examined for the plaintiff :
P.W.1 Sowbhagya D
P.W.2 R.Chandrashekar
28 O.S.No.9471/2015
List of witnesses examined for the defendant :
D.W.1 Ramesh List of documents marked for the plaintiff :
Ex.P.1 Sale agreement dated 23/04/2014 Ex.P.2 Certified copy of the partition deed dated 24/08/1950 Ex.P.3 Sale deed dated 24/03/2007 Ex.P4 General Power of Attorney dated 19/05/1988 Ex.P.5 Three Encumbrance Certificates Ex.P.6 Two khatha certificates Ex.P7 Two khatha extracts Ex.P.8 Khatha registration certificate Ex.P.9 Seven tax paid receipts Ex.P.10 Copy of the legal notice dated 31/03/2015 Ex.P.10(a), (b) Two postal acknowledgements Ex.P.11 Copy of the legal notice dated 29/10/2015 Ex.P11(a) Postal receipt Ex.P11(b) Two postal acknowledgements Ex.P12, 13 Bank statement List of documents marked for the defendant : Nil ( NAGAVENI ) V ADDL.CITY CIVIL JUDGE BANGALORE 29 O.S.No.9471/2015