Bangalore District Court
Sri. K.S. Sunil Gupta vs Smt. Pillamma on 7 January, 2020
TITLE SHEET FOR JUDGEMENTS IN SUITS
Government of Karnataka
Form No.9
[Civil] Title Sheet for IN THE COURT OF V ADDL.CITY CIVIL COURT
Judgement
in Suits
AT BENGALURU
(CCH.No.13)
Present: Sri. C.D. KAROSHI, B.A., LL.M.
V ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU
Dated this the 7th day of January, 2020.
O.S. No.9363/2004
PLAINTIFF: Sri. K.S. Sunil Gupta,
S/o Y.S. Gupta,
Aged about 36 years,
R/at No.461/B,
7th Cross, 7th Block,
West Jayanagar,
Bengaluru-82.
(By Sri.AAKS, Advocate)
/VS/
DEFENDANTS: 1. Smt. Pillamma,
W/o Muniswamy,
Aged about 74 years
2. Sri. Ramanna,
S/o Muniswamy,
Aged about 39 years
3. Sri. Ramaswamy,
S/o Muniswamy,
Aged about 34 years
4. Smt. Munichowdamma @
Doddachowdamma,
W/o Thimraja,
Aged about 54 years
5. Smt. Chikkachowdamma,
W/o Konadalappa,
Aged about 47 years
2
O.S. No.9363/2004
6. Smt. Ramakka,
D/o Muniswamy,
Aged about 31 years
7. Sri. Mutta,
S/o Late Anniahappa,
Aged about 49 years
Defendant No.1 to 7 are
Residents of Chellaghatta
village, Varthur Hobli,
Yamlur P.O. Bengaluru.
8. Smt. Chowdamma,
W/o Late Guddappa,
Aged about 54 years,
R/at Bodanahosahalli,
Bidarahalli Hobli,
Hoskote Taluk,
Bengaluru District.
9. Smt. Gowramma,
W/o Sri. Chandrappa,
Aged about 34 years
10. Smt. Gunamma,
W/o Sri. Rajappa,
Aged about 36 years
11. Smt. Dodda Muniyamma,
W/o Sri. Venkataswamy,
Aged about 38 years
12. Smt. Munilakshmamma,
W/o Muniyappa,
Aged about 39 years
13. Smt. Munirathnamma,
W/o Muniyappa,
Aged about 42 years
Defendant No.9 to 13 are
residents of Chellaghatta village,
Varthur Hobli, Yamlur P.O.
Bengaluru.
3
O.S. No.9363/2004
14. Sri. S.M. Sathyanarayana,
S/o Muniramaiah,
Aged about 60 years
15. Sri. S.S. Kailash,
S/o Sathyanarayana,
Aged about 31 years
Defendant No.14 and 15 are
R/at No.15/A,
Sri. Krishna Rao Road,
Basavanagudi, Bengaluru.
16. Sri. Karthik Rao,
S/o Sridhar,
Aged about 29 years,
R/at No.1/1, Curley Street,
Bengaluru.
17. Smt. Bhavani Shetty,
Since deadh by LR.s
17(A). Rytik Shetty
D/o Ashok Kumar Shetty,
Aged about 30 years,
R/at Cinchona Estate,
Ibbnivavavadi village,
Somwarpet Taluk,
Kodagu District.
18. Golfinks Software Park
Pvt., Ltd., A Company
incorporated under the
Companies Act, 1956, having
its registered office at No.16,
St. Marks Road, Bengaluru.
19. Yahoo Corporation India Ltd,
Golfinks Software Park,
Internal Ring Road,
Koramangala,
Bengaluru.
(DELETED)
4
O.S. No.9363/2004
(D.1 to 7, 9 to 15, 17, 17(a)-exparte,
D.8 by Sri. HTJ advocate,
D.16 by Sri. VPK advocate,
D.18 by Sri. AN advocate,
D.19 - Deleted)
Date of Institution of the 16/12/2004
suit
Nature of the suit Suit for specific
performance, permanent
injunction and in the
alternative to refund
advance amount
Date of Commencement of 14/12/2009
recording of evidence
Date on which judgment was 07/01/2020
Pronounced
Total Duration Year/s Month/s Day/s
15 00 21
( C.D.KAROSHI )
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
******
:JUDGMENT:
This is a suit filed by the plaintiff against the defendants for the relief of specific performance of contract, permanent injunction and in the alternative to refund advance amount with damages and interest along with cost of the suit.
5O.S. No.9363/2004
2. The brief facts of the case are as under :-
That, the defendant No.1 to 7 along with Sri. Muniswamy and Smt. Muniyamma executed an
agreement of sale dated 31/03/1995. Defendant No.1 to 7 are the legal heirs of late Muniswamy. Defendant No.8 to 13 are the legal heirs of late Smt. Muniyamma. The plaintiff and defendant No.14 to 16 are the agreement holders, the plaintiff is the nominee of defendant No.14 to 16 and defendant No.17 is a subsequent purchaser. Further it is averred that one Sri. Maddurappa purchased a portion of Sy.No. 8/3 measuring 1 acre 26 guntas along with Karab land of 10 guntas from its previous owner through a registered sale deed dated 23/01/1947. Thereafter the said Muddurappa was in possession and enjoyment of the schedule property till his death. The schedule property includes a total measurement of 1 acre 36 guntas of which 1 acre 26 guntas purchased by Muddurappa and 10 guntas karab attached thereto is situated in the middle portion of the schedule property, accordingly entire possession/area including the aforesaid portion is handed over to the agreement holders, but 10 guntas of land has not been granted to Muddurappa or his legal heirs by the Government. After the death of Muddurappa his legal heirs Muniswamy and Muniyamma became the owners in possession of the schedule property and also mutated their names in the record of rights. The said Muniswamy and Muniyamma along with defendant No.1 to 7 executed an agreement to sell dated 31/03/1995 in 6 O.S. No.9363/2004 favour of plaintiff and defendant No.14 to 16. The property was agreed to be sold at Rs.24,00,000/- per acre, pursuant to the said agreement it was also agreed that plaintiff shall be the nominee of defendant No.14 to 16 and he shall pay the sale consideration, accordingly at the time of execution of the agreement the plaintiff paid a sum of Rs.3,00,000/- and thereafter he paid sale consideration amount of Rs.25,28,500/- on various dates which was duly acknowledged by the owners.
3. Further it is averred that the said executants have also handed over the copies of the title deeds, revenue records along with vacant possession of the schedule property in part performance of the agreement to sell. They also executed power of attorney dated 31/03/1995 and assured to complete the sale transaction after furnishing the documents as agreed, but in view of non compliance of the same, sale deed could not be registered. Later on the said Muniswamy died leaving behind the defendant No.1 to 7 as legal heirs and Muniyamma also died leaving behind defendant No.8 to 13 as her legal heirs. The plaintiff being an agreement holder and nominee has been in exclusive possession and enjoyment of the schedule property in part performance of the agreement, as such his rights are protected under Section 53(A) of the T.P. Act and entitled for the relief of specific performance of agreement both in law and equity. Further it is averred that the plaintiff is always ready and willing to perform his part of the contract as he is competent and 7 O.S. No.9363/2004 capable of performing his obligation, as such if the relief of specific performance is not granted he would be put to great hardship and irreparable loss. Further it is averred that, the defendants or the predecessor in interest have not initiated any action to recover possession from the plaintiff nor the plaintiff has surrendered the possession, but he continued to be in the enjoyment of the schedule property believing that conveyance would be registered in due course, but on the other hand defendant No.1 to 7 along with Sri. Muniswamy and Smt. Muniyamma executed a registered sale deed dated 27/06/1998 in favour of one B.R. Krishna Murthy without authority with an intention to defeat the right of the plaintiff. Further, they once again executed a sale deed dated 17/12/2000 in favour of defendant No.17, but possession is with the plaintiff, as such plaintiff is not bound by the said nominal sale/document as the sale consideration shown at Rs.18,75,000/- for the entire property. The defendant No.17 was well aware of the agreement in favour of the plaintiff along with possession. The conduct of the defendants in creating 3rd party rights amounts to denial of performance of obligation under the agreement of sale, as the said documents were executed without the knowledge and consent of the plaintiff, but on 01/12/2004 the defendant No.1 to 13 and 17 in collusion with each other threatened to interfere with the possession of the plaintiff. The cause of action arose to file the suit on 31/03/1995 and subsequent dates when the defendants received part of the sale consideration and finally on 01/12/2004 . On these grounds the plaintiff prayed for decreeing the suit.
8O.S. No.9363/2004
4. Records reveal that despite service of suit summons defendant No.1 to 7 and 9 to 15 remained ex-parte. During the pendency of the suit defendant No.17 reported to be dead, her legal heir is brought on record as defendant No.17(a), but remained ex-parte. The name of defendant No.19 came to be deleted. The defendant No.8, 16 and 18 appeared through their respective counsels and filed written statement.
5. It is contended in the written statement filed by the defendant No.8 that, suit of the plaintiff is not maintainable either in law or on facts and liable to be dismissed. The entire averments of plaint are denied by the defendant. The suit is barred by law of limitation. It is true that Maddurappa was the owner of Sy.No. 8/3 measuring 1 acre 36 guntas and after his death his legal heirs acquired the schedule property. But it is denied that defendants 1 to 7 executed an agreement of sale and GPA dated 31/03/1995 in favour of plaintiff and defendant No.14 to 16 along with possession. It is true that defendants 8 to 13 are the legal heirs of deceased Smt. Muniyamma. The averments regarding execution of sale deed dated 27/06/1998 is not within their knowledge. Further after marriage of defendant No.8 she is residing with her husband since 40 years, as such she is not having any relationship with her mother and also has neither participated in any of the sale proceedings nor received any amount or property. The valuation made and court fee paid is not correct. On these grounds prayed for dismissal of the suit with cost.
9O.S. No.9363/2004
6. It is contended in the written statement filed by defendant No.16 that, averments made in para 3 to 7 are not within his knowledge. The averments made in para 8 and 9 are absolutely denied as false and plaintiff be put to strict proof the same. The averments regarding cause of action is also not within the knowledge of defendant No.16. Further he dispute averments regarding his participation in entering to agreement of sale and receipt of part sale consideration amount as well as the averments as plaintiff is the nominee of defendant No.16. On these grounds prayed for dismissal of the suit with exemplary cost.
7. It is contended in the written statement/Addl. Written statement filed by defendant No.18 company that, the suit is not maintainable either in law or on facts and liable to be dismissed. The defendant No.18 was brought on record, but the plaint is not consequentially amended by explaining the reason why the said defendant has been impleaded, as such there is an omission. The allegations made in para 3 to 10 of the plaint are denied as false and plaintiff be put to strict proof of the same. Further contend that the agreement dated 31/03/1995 purported to have been executed by Sri. Muniswamy, Smt. Muniyamma and defendant No.1 to 7 in favour of plaintiff and defendant No.14 to 16 is a fraudulent fabrication brought into the existence by deceitful means to defeat the rights of the defendant and its predecessors in title of the schedule property. The averments that plaintiff is the nominee of defendant No.14 10 O.S. No.9363/2004 and 16 is denied. Further contend that the total extent of Sy.No. 8/3 measuring 2 acres 32 guntas including karab land situated at Challaghataa village, Varthur Hobli, Bengaluru South Taluk, was in the possession of one Maddura @ Maddurappa who purchased the same under a registered sale deed dated 18/06/1952. Further the said Maddurappa died intestate leaving behind his four sons as legal heirs. The 3 rd and 4th sons of Sri. Maddurappa viz., Appanna and Muniyappa also died subsequently. During their life time they sold 18 guntas each out of 2 acres 32 guntas to one H.M. Devappa under two sale deeds dated 17/11/1960 and 18/11/1960. Accordingly remaining extent of 1 acre 36 guntas was owned by the surviving sons of Maddurappa viz., Muniswamy and Annayappa, later on Annayappa also died intestate leaving behind his wife Smt. Muniyamma and a son/defendant No.7 along with defendant No.8 to 13 daughters. The said Muniswamy, Muniyamma w/o Annayappa along with their children sold the remaining extent of 1 acre 36 guntas to defendant No.17 Smt. Bhavani Shetty for valuable consideration through registered sale deed dated 07/12/2000, accordingly her name came to be entered in the mutation register and in turn she has gifted the said property along with other properties to her grand daughter Hrithik Shetty under a Gift Deed dated 13/07/2002 registered in the office of Sub-registrar Madikeri and also her name was entered in the mutation register in the office of Deputy Commissioner, Bengaluru District based on an 11 O.S. No.9363/2004 application to convert the said land to residential purpose. Further the said Ms. Hrithik Shetty sold the property to the extent of 1 acre 36 guntas in Sy.No. 8/3 in favour of defendant No.18 for valuable consideration through a registered sale deed on 04/12/2004. Thereafter the defendant has developed the same and constructed a multi storied commercial building in the schedule property by obtaining permission from the concern authority and now is in possession and running a software company. Further the defendant has entered in to a JDA dated 01/03/2004 and jointly developed 12 ½ guntas in the suit survey number and other properties belongs to the plaintiff and a commercial complex has been built therein. The plaintiff is aware of the entitlement of defendant No.18 to the possession of 1 acre 36 guntas exclusively along with joint possession of 12 ½ guntas and other properties which have been developed in the said property. The defendant No.18 is a bonafide purchaser for valuable consideration and is in possession of the schedule property. Therefore the plaintiff as well as defendant No.14 to 16 are not entitled for the relief of specific performance etc, along with alternative relief as prayed for and suit is liable to be dismissed with exemplary cost.
8. On the basis of the above pleadings, this court has framed the following issues/Addl. Issues:-
1) Whether the plaintiff proves the due execution of agreement of sale dated 31/03/1995 with respect to suit property measuring 1 acre 36 guntas out of it 10 guntas being Kharab land for a total 12 O.S. No.9363/2004 consideration of Rs.24,00,000/- per acre and the defendants have received earnest money of Rs.3,00,000/-?
2) Whether the plaintiff further proves the payment of remaining sale consideration from time to time and such payment was duly acknowledged by way of receipt?
3) Whether the plaintiff proves that he was put in possession of the suit property in pursuance of the agreement of sale dated 31/03/1995?
4) Whether the plaintiff is ready and willing to perform his part of contract?
5) Whether the plaintiff is entitled for the relief claimed in suit?
6) What Order or Decree?
Addl. Issues:-
1. Whether the defendant No.18 proves that the company is bona-fide purchaser of the schedule property for valuable consideration without notice of earlier agreement dated 31/03/1995?
2. Whether the suit of the plaintiff is barred by limitation?
9. In order to prove his case, the plaintiff examined himself as P.W. 1 and got marked the documents at Ex.P.1 to P.17(a). On the other hand, an authorized signatory of the defendant No.18 examined himself as D.W.1 and got marked the documents at Ex. D-1 to 53. No oral or documentary evidence adduced on behalf of defendant No.8 and 16.
13O.S. No.9363/2004
10. Heard the learned counsel for plaintiff and perused the synopsis of written submissions filed by defendant No.18 along with the material on record.
The learned counsel for plaintiff relied on relevant extracts/judgments/citations i.e. 1) AIR 1982 SC 989 (Sardar Govindrao Mahadik and another Vs. Devi Sahai and others), 2) 2012(1) SCC 656 (Suraj Lamp & Industries (P) Vs. State of Haryana and another), 3) AIR 1998 Kant 389 ( Narasimhasetty (D) Vs. Padmasetty), 4) AIR 2006 Ori 112, 5) RSA 170/2015 (Sribas Kumar Majumdar and others Vs. Gour Mohan Biswas and others),
6) 1997(4) BomCR 462 (Bajrang @ Hanumant Tatyaba Vs. Smt. Babubai W/o Baburao Pujari), 7) 2010 (1) GLH 151 (Harshadkumar Kantilal Bhalodwala and another Vs Ishwarbhai Chandubhai Patel and others and 8) 2013 (3) CCC 376 (P&H) (Ram Kishan Vs. Bijender Mann @ Vijender Maan).
The learned counsel for the defendant No.18 relied on list of authorities viz.,:-
1) Extract of Form 47 and 38 of Appendix A of the Code of Civil Procedure, 1908, 2)Extract of Order VI Rule 3 of the Code of Civil Procedure, 1908, 3) Pukharaj D Jain and others Vs G. Gopalakrishna (2004) 7 SCC 251 (para6), 4) K.C. Paramashivaiah and another Vs. T. Narayanaswamy and others judgment of the Hon'ble High Court of Karnataka dated 25/09/2012 in RSA No.2206/2007 (para 46), 5) Basappa and others Vs. Chandrashekharappa 2010 (4) KarLJ 207, 6) K.S. Vidyanadam and others Vs. Viravan (1997) 3 SCC 1, 7) Lourdu Mari Davi and others Vs. Louis Chinnaya Arogiaswamy and others AIR 1996 SC 2814,
8) Durga Prasad and others Vs. Lilawati and others AIR 1972 All.
396, 9) H.P. Pyarejan Vs Dasappa (D) by Lrs and others AIR 2006 SC 1144, 10) Lakshmi Sreenivas Cooperative Building Society Ltd., Vs.Puvvada Rama (D) by Lrs and others (2018) 9 SCC 251, 11) Kamal Kumar.V. Premlata Joshi and others (2019) 3 SCC 704, 12) Jagjit Singh (d) through L.Rs Vs Amarjit Singh (2018) 9 SCC 805 (para 4), 13) His Holiness Acharya Swamy Ganesh Dassji Vs. Sita Ram Thapar (1996) 4 SCC 526, 14) N.P. Thirugnanam (d) by L.Rs Vs. R. Jagan Mohan Rao and others (1995) 5 SCC 115.
14O.S. No.9363/2004
11. My findings on the above issues are as under:-
Issue No.1: Partly in the affirmative
Issue No.2: Partly in the affirmative
Issue No.3: In the negative
Issue No.4: In the Negative
Issue No.5: Partly in the affirmative
Addl.Issue No.1: In the affirmative
Addl.Issue No.2: In the affirmative
Issue No.6: As per final order for the
following:
:R E A S O N S:
12. Issue No.1 to 4 and Addl. Issue No.1:- I take
these issues altogether for my discussion, as the facts overlap and for the sake of convenience.
13. It is pertinent to note that, admittedly, the plaintiff has filed the above numbered suit for the relief of Specific Performance of contract, permanent injunction and in the alternative to refund the entire advance amount with damages and interest thereon. In this regard, the plaintiff examined himself as P.W. 1 by reiterating entire averments of the plaint stating that, the defendant No.1 to 7 along with Sri. Muniswamy and Smt. Muniyamma executed an agreement of sale dated 31/03/1995. Further states that, defendant No.1 to 7 are the legal heirs of late Muniswamy and defendant No.8 to 13 are the legal heirs of late Smt. Muniyamma. Further states that, he being the nominee, himself and defendant No.14 to 16 are the agreement holders, 15 O.S. No.9363/2004 one Sri. Maddurappa purchased a portion of Sy.No. 8/3 measuring 1 acre 26 guntas along with Karab land of 10 guntas from its previous owner through a registered sale deed dated 23/01/1947, thereafter the said Muddurappa was in possession and enjoyment of the schedule property till his death, accordingly entire possession/area including the aforesaid portion is handed over to the agreement holders, but 10 guntas of land has not been granted to Muddurappa or his legal heirs by the Government. Further states that, the said Muniswamy and Muniyamma along with defendant No.1 to 7 executed an agreement to sell/GPA dated 31/03/1995 in his favour and defendant No.14 to 16 for a sale consideration of Rs.24,00,000/- per acre and also handed over the possession with copies of documents, pursuant to the said agreement it was also agreed that he shall be the nominee of defendant No.14 to 16 and shall pay the sale consideration, accordingly at the time of execution of the agreement he paid a sum of Rs.3,00,000/- and thereafter he paid sale consideration amount of Rs.25,28,500/- on various dates which was duly acknowledged by the owners and assured to complete the sale transaction after furnishing the documents as agreed, but in view of non compliance of the same, sale deed could not be registered. P.W. 1 further states that, he being an agreement holder and nominee has been in exclusive possession and enjoyment of the schedule property in part performance of the agreement, as such his rights are protected under Section 53(A) of the T.P. Act and entitled for 16 O.S. No.9363/2004 the relief of specific performance of agreement both in law and equity. In order to support his oral testimony P.W. 1 got marked documents at Ex.P.1 to 17 and 17(a).
14. It is to be noticed that, admittedly defendant No.1 to 7 executors of alleged agreement of sale dated 31/03/1995 executed in favour of P.W. 1 and defendant No.14 to 16 remained ex-parte. Further though there is no amendment/specific pleading as well as oral evidence against defendant No.18 on this aspect, during the course of cross- examination of P.W.1, when a suggestion was put to the witness that, defendant No.14 based on GPA dated 31/03/1995 sold the schedule property through registered sale deed dated 27/06/1998 and put one B.R. Krishna Murthy in possession of the schedule property, he pleads ignorance regarding execution of sale deed based on GPA, but he denied the suggestion regarding handing over of possession of the schedule property in favour of said B.R. Krishna Murthy as false. Further though he admits that he has handed over the properties bearing Sy.No. 8/1, 8/3 and 8/4 to defendant No.18 for development as per JDA and defendant No.18 handed over his share, but again states that he has not signed any JDA in respect of the subject matter of the suit in question.
15. In order to substantiate its contention, the authorized signatory of defendant No.18 examined himself as D.W.1 stating that, though their company was brought on 17 O.S. No.9363/2004 record, but the plaint has not been amended, as such there is an omission. Further states that the agreement dated 31/03/1995 purported to have been executed by Sri. Muniswamy, Smt. Muniyamma and defendant No.1 to 7 in favour of plaintiff and defendant No.14 to 16 is a fraudulent document brought into the existence by deceitful means to defeat their rights and its predecessors in title of the schedule property. Further states that, the said Muniswamy, Muniyamma w/o Annayappa along with their children sold the remaining extent of 1 acre 36 guntas to defendant No.17 Smt. Bhavani Shetty for valuable consideration through registered sale deed dated 07/12/2000 and in turn she has gifted the said property along with other properties to her grand daughter Hrithik Shetty under a Gift Deed dated 13/07/2002. Further states that the said Ms. Hrithik Shetty sold the property to the extent of 1 acre 36 guntas in Sy.No. 8/3 in their favour for valuable consideration through a registered sale deed on 04/12/2004, thereafter the defendant company has developed the same and constructed a multi storied commercial building in the schedule property by obtaining permission from the concern authority and now is in possession and running a software company. Further DW.1 states that defendant No.18 company is a bonafide purchaser of the plaint schedule property for valuable consideration in good faith and in exclusive possession of the same, as such the plaintiff is estopped by conduct by denying the right, title and possession of the defendant No.18 over the 18 O.S. No.9363/2004 schedule property. Further states that, it has entered in to a JDA dated 01/03/2004 and jointly developed 12 ½ guntas in the suit survey number and other properties belongs to the plaintiff and a commercial complex has been built therein and the plaintiff is aware of defendant No.18's exclusive right, title and possession of the schedule property measuring 1 acre 36 guntas in Sy.No. 8/3, as well as entitlement and joint possession of 12 ½ guntas and other properties which have been developed in the said property and plaintiff has not constructed any building. In order to support his oral testimony, D.W.1 got marked documents at Ex.D.1 to D.53
16. During the course of cross-examination of D.W.1 it has been elicited that, he has neither seen the agreement of sale dated 31/03/1995 nor participated at the time of execution of JDA pertains to another property or signatory to the said document and have deliberately not produced original sale deeds shown in the list, but he has specifically denied the suggestion that they have produced Ex.D.14 list of documents by creating the same. Further when a suggestion was put to the witness that the defendant No.18 company was aware about existence of agreement of sale in question at the time of execution of JDA and also plaintiff informed the same but they purchased the schedule property from defendant No.17(a) without passing consideration, he denied as false. In such circumstances, this court has to appreciate the oral and documentary evidence available on record and to see that, in whose favour preponderance of probabilities lies.
19O.S. No.9363/2004
17. The learned counsel for the plaintiff vehemently argued by referring the relevant pleadings, oral and documentary evidence available on record as well as principles enunciated in the decisions referred supra and prayed for decreeing the suit. It has been held in the decisions referred supra by the counsel for plaintiff that induction into possession of the immovable property subsequent to the contract touching the property, may be decisive of the plea of part performance and if a person claiming benefit of part performance it would be strong evidence of the contract and possession changing hands pursuant to the contract, accordingly the doctrine of part performance can be invoked when there is contract to transfer the immovable property for consideration and the contract is evidenced by a written document. Further held that mutation entry of an agricultural land is not a document of right or title, as such it cannot be said that purchaser had taken reasonable care before purchase of agricultural land. Further observed that if an agreement to sell is accompanied by delivery of possession or is executed in favour of a person already in possession then transferrer shall be prohibited from enforcing any right in respect of the property which is subject matter of the contract even though it is unregistered.
18. Per contra, the learned counsel for the defendant No.18 also addressed oral arguments and filed written synopsis by referring the relevant pleadings, oral and documentary evidence available on record as well as 20 O.S. No.9363/2004 principles enunciated in the decisions referred in the synopsis and prayed for dismissal of the suit against defendant No.18.
17. . 19. It is pertinent to note that, on careful evaluation of the pleadings, oral and documentary evidence as well as arguments on both the side we can find that, so far as in respect of acquisition of property in question originally by one late Maddurappa from its erstwhile owner through a registered sale deed dated 23/01/1947 is concern there is no dispute. It is also not in dispute after the death of said Maddurappa, his legal heirs Muniswamy and Muniyamma became the owners in possession of the schedule property. It is an admitted fact that the said Muniswamy and Muniyamma died leaving behind the defendant No.1 to 7 and defendant No.8 to 13 as their legal heirs respectively. It is the specific case of the plaintiff that defendant No.1 to 7 along with late Muniswamy and Muniyamma executed an agreement of sale/GPA dated 31/03/1995 in favour of the plaintiff and defendant No.14 to 16 along with possession by receiving part sale consideration amount of Rs.3,00,000/- out of total sale consideration amount of Rs.24,00,000/- per acre and thereafter plaintiff has paid in all a sum of Rs.25,28,500/- towards sale consideration and thereby continued to be in the possession of the schedule property.
20. Per contra, claim of the plaintiff remained unchallenged and un-rebutted by the executors of agreement of sale in question including defendant No.8 and 16 who filed 21 O.S. No.9363/2004 written statement before this court. But, it is the specific case of the contesting defendant No.18 that, defendant No.14 executed sale deed dated 27/06/1998 in favour of one B.R. Krishna Murthy claiming to be the sole agreement holder and GPA holder of executors of the agreement in question. Further again they sold the property to the extent of 1 acre 36 guntas in Sy.No. 8/3 in favour of defendant No.17 Smt. Bhavani Shetty, in turn she has gifted the same under registered Gift Deed dated 30/07/2002 in favour of defendant No.17(a) her grand daughter Ms. Hrithik Shetty. In turn she has sold it to defendant No.18 under registered sale deed dated 04/12/2004 and thereby the defendant No.18 company being the bonafide purchaser is in joint possession of the schedule property along with other properties belongs to the plaintiff.
21. With regard to execution of Ex.P.1 agreement of sale, further payment of sale consideration amount as well as ready and willingness on the part of the plaintiff is concern, though it is remained unchallenged and unrebutted by the executors but it has been seriously disputed by the defendant No.18 subsequent purchaser, then it is for the plaintiff to prove the same by adducing cogent, oral and documentary evidence before this court. Admittedly except the self interested testimony of P.W. 1 no supportive evidence is forth coming before this court to prove due execution of Ex.P.1 agreement of sale along with GPA dated 31/03/1995. Admittedly Ex.P.1 alleged agreement of sale in question is an 22 O.S. No.9363/2004 unregistered and insufficiently stamped document, but it is evident that while marking the same during the course of cross-examination of P.W. 1 no objection was raised by the other side. Further orders passed by the predecessor in office on this aspect also remained unchallenged. But, in order to prove due execution of the agreement of sale and to show character of possession, the plaintiff has neither produced supportive documents nor examined the witnesses found thereon before this court. Further though P.W. 1 states that he has been authorized by the defendant No.14 to 16 as nominee along with GPA, but no such document is forth coming before this court. Further though it is averred in para 7 of the plaint that plaintiff is in exclusive possession of the schedule property and also constructed a compound wall along with a super structure on the schedule property, but no bit of document like property extract, tax paid receipt, electricity bill, voter I.D. etc., are forthcoming before this court.
22. During the course cross-examination by the counsel for defendant No.18 though states that he had a cash of Rs.3,00,000/- in his account and had en-cashed the same and paid the same to the owners as per Ex.P.1 and also he has got a document to that effect, but has not produced it before the court. Further admits that he has neither remembered who gave instructions to prepare GPA dated 31/03/1995 nor produced any document to show the construction of compound wall surrounding the schedule 23 O.S. No.9363/2004 property or now he is an agriculturist, but denied the suggestion that he has filed the suit by suppressing the material facts in collusion with defendant No.14 and 15 to defeat the right of the defendant No.18 over the schedule property. So, non production of material documents before this court is concern an adverse inference can validly be drawn against the plaintiff to that extent. In such circumstances, it can be held that the unregistered and insufficiently stamped agreement of sale is not admissible in evidence, as such without there being supportive oral and documentary evidence, evidence of P.W. 1 that he was being inducted in the possession of the schedule property by virtue of agreement of sale cannot be believed.
23. Further with regard to total sale consideration amount and part payment is concern if we go through the terms of agreement of sale we can find that there is a recital with regard to purchase of the land bearing Sy.No. 8/3 measuring 1 acre 36 guntas at Challaghatta village for a sale consideration amount of Rs.24,00,000/- per acre. Further on page 4 of the agreement there is a clause for having paid an amount of Rs.3,00,000/- towards part sale consideration amount by the purchasers. But on page No.5 of the agreement it is stated that 2nd advance amount of Rs.15,00,000/- shall be paid by the purchasers on or before 18/07/1995. It is averred in the plaint and also stated by P.W. 1 that in all he has paid total sum of Rs.25,28,500/- towards sale consideration, which has been seriously 24 O.S. No.9363/2004 disputed by the defendant No.18. With respect to further payment of advance consideration amount is concern para 2.1 of Ex.P.1 agreement of sale reflects for having paid an amount of Rs.3,00,000/- as advance by cash in favour of vendor No.8 and 9 in the presence of witnesses. Further there is an endorsement in Ex.P.2 for having made further part payment of Rs.3,90,000/-, but it does not disclose the date of receipt as well as the particulars of payment. On perusal of Ex.P.1 to 17 and 17(a) alleged agreement of sale and endorsements relied by the plaintiff reveals that the purchasers i.e. holders of the agreement in question have paid in all Rs.14,28,500/- only. So without supportive cogent evidence in respect of further payment of claim amount as stated in the plaint and its acknowledgement by the executors, the claim of the plaintiff that he has paid in all Rs.25,28,500/- cannot be believed as worthy of credence. However, alternative relief of the plaintiff in respect of refund of advance amount also remained unchallenged and unrebutted by the executors of the agreement of sale in question, as such the defendant No.1 to 13 are liable to refund advance amount of Rs.14,28,500/- to the plaintiff.
24. With regard to ready and willingness is concern, PW.1 in para 6 of his evidence states that, he is always ready and willing to perform his part of the contract as he is competent and capable of performing his obligation, as such if the relief of specific performance is not granted he would be put to great hardship and irreparable loss. Further states 25 O.S. No.9363/2004 that, the defendants or the predecessor in interest have not initiated any action to recover his possession over the schedule property, on the other hand defendant No.1 to 7 along with Sri. Muniswamy and Smt. Muniyamma executed a registered sale deed dated 27/06/1998 in favour of one B.R. Krishna Murthy without authority with an intention to defeat his right and also once again executed a sale deed dated 17/12/2000 in favour of defendant No.17 without possession, as such the same is nominal sale and not binding on him. So, the conduct of the defendants in creating 3rd party rights amounts to denial of performance of obligation under the agreement of sale, as the said documents were executed without his knowledge and consent, but defendant No.1 to 13 and 17 colluding with each other threatened to interfere with possession over the schedule property. In order to support his oral testimony P.W.1 got marked the documents at Ex.P.2 to 17(a).
25. It is pertinent to note here that Section 16(c) of the Specific Relief Act, 1963 requires that the party seeking the relief of specific performance is not only to plead, but is also required to prove that, he is always ready and willing to perform the essential terms of the contract till execution of sale deed. This view has been supported by the citations relied by the learned counsel for defendant No.18 as referred at Sl.No.11 to 14 in para 10 supra. It is also equally settled that the conduct of the defendant cannot be ignored by weighing the question of exercise of discretion for decreeing or denying a decree for 26 O.S. No.9363/2004 specific performance. In the case on hand admittedly evidence of P.W. 1 regarding ready and willingness remained unchallenged by the executors of Ex.P.1 agreement of sale in question. So, in such a case whether a subsequent purchaser can raise a contention on this aspect or not? In this connection, it is settled as held by the Hon'ble Apex Court in AIR 2009 SC 2157, (Azhar Sulthana case) - that in a suit for specific performance not only the original vendor but also a subsequent purchaser like defendant No.18 would be entitled to raise a contention that, plaintiff was not ready and willing to perform his part of contract. So in the light of these requirements it is necessary to see that whether the plaintiff has shown his readiness and willingness to perform his part of the contract.
26. In this regard though the plaintiff has averred in para 7 of the plaint and also P.W. 1 states that he has been ready and willing to perform his part of the contract, but as could be seen from the perusal of Ex.P1 agreement of sale dated 31/03/1995 as referred supra that there is a clause in para 3 of the agreement fixing 11 months period for execution and completion of sale transaction or within one month from the date of vendors obtaining and furnishing the documents, which indicates that time was the essence of contract.
27. A plain reading of Section 55 of the Indian Contract Act makes it clear that, when a party to a contract promises to do a certain thing at or before a specified time, or certain things at or 27 O.S. No.9363/2004 before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee if the intention of the parties was that time should be of the essence of the contract.
28. It is not in dispute that none of the parties have got extended the time to perform their part of contract. So, though it is settled that, in case of immovable property it is not necessary, but it is equally settled that it is open to one of the parties to make the time of contract by calling upon the other party which has been guilty of unreasonable delay to perform the contract. In this regard there is no dispute that both the parties should perform their part of contract within the stipulated period. This position of law is well settled as held by the judgment of the constitution bench of the Hon'ble Apex Court long back in the case of Chand Rani //Vs// Kamal Rani (1993) 1 SCC 519) that though in a case of sale of immovable property time is not the essence of the contract, but if the parties agreed to a specified time in the agreement to perform their part of the contract, then time is the essence of contract and parties shall adhere to the same.
29. In the case on hand, in order to support his oral testimony the plaintiff has not produced any bit of document like copy of legal notice except Ex.P.2 to 17(a) receipts to show that he made efforts to perform his part of contract by issuing legal notice within the stipulated period of 11 months from the date of agreement till date.
28O.S. No.9363/2004
30. It is evident that, date of institution of the present suit was on 16/12/2004 which was nearly about 9 years 08 months 15 days after expiry of the limitation period stipulated in the agreement to get the sale deed executed in favour of the plaintiff. It is settled that in a suit for specific performance the plaintiff must be ready and willing to carry out his part of agreement at all material times, but plaintiff has failed to perform his part of agreement within the stipulated period as required U/s 16(c) of the Specific Relief Act. So as held by Hon'ble Apex court in the case of Lakshmi Srinivasa Co-operative Building Society Ltd., referred supra at Sl.No.10 in para 10 it can be held that, in the absence of proof of the contract the relief of specific performance cannot be granted.
31. The learned counsel for the defendant No.18 urged that, the defendant No.18 has purchased the schedule property for consideration amount without notice of earlier agreement, as such he is a bonafide purchaser for value, he is in possession and enjoyment of the suit property along with other properties of the plaintiff. Per contra, it was urged on behalf of the plaintiff that,the sale transaction took place between defendant No.17(a) and 18 is a nominal sale without possession and passing of consideration, as such the same is not binding and he is entitled for protection under Section 53(A) of T.P. Act.
32. So another question that arises before this court is, whether the defendant No.18 has purchased the schedule property for valuable consideration without notice of earlier agreement dated 31/03/1995 or not? In this regard as rightly 29 O.S. No.9363/2004 urged by the learned counsel for defendant No.18, Ex.P.1 is an unregistered agreement, as such defendant No.18 or any interested party or public would not have noticed of earlier agreement dated 31/03/1995 said to have been executed by defendant No.1 to 7 along with Sri. Muniswamy and Smt. Muniyamma. D.W. 1 also states that defendant No.18 company has purchased the schedule property based on documents provided by defendant No.17(a) vendor and after due enquiry only they purchased the schedule property. PW 1 admits that he came to know about purchase of the schedule property by the defendant company somewhere in the year 2003, then what prevented to implead the company in the suit in the year 2004 only, not explained. Further, even after adding the defendant No,18 the plaintiff has failed to amend the body of the plaint and also there is no specific evidence against the company. This material omission also hit by the provisions of rule 15 of the rules of practice. As such on this aspect also an adverse inference can be drawn against the plaintiff. With regard to non production of original documents is concern, defendant No.18 would contend that they have deposited all the original documents pertaining to the schedule property with HDFC Ltd., HDFC House to avail loan so as to construct a multi storied building in the schedule property. Though the plaintiff has disputed the same as created and no consideration passed, but it is settled that according section 101 of Evidence Act- burden lies on the plaintiff to prove his case on basis of material available, as such he cannot rely on weakness or absence of defense of defendant to discharge the onus.
30O.S. No.9363/2004
33. On the other hand as could be seen from the perusal of Ex.D.1 and 2 certified copy of the sale deeds that, the defendant No.18 company has purchased schedule property from its vendor defendant No.17(a) to the extent of 1 acre 36 guntas under a registered sale deed dated 04/12/2004, wherein there is a recital for having handed over possession of the schedule property. Ex.D.3 is the Resolution/authorization given by the defendant No.18 company to D.W. 1 and other directors to do all such acts on behalf of the company. Ex.D.4 is the certified copy of the sale deed dated 18/06/1952 pertains to Sy.No. 8/3 totally measuring 2 acres 22 guntas of Challaghatta village. Ex.D.5 is the certified copy of the sale deed dated 27/06/1998 for having sold the schedule property by the defendant No.14 as GPA holder in favour of one B.R. Krishna Murthy. Ex.D.6 is the certified copy of the sale deed executed by one Sri. Papanna and others i.e. vendors in favour of plaintiff to the extent of 8 ½ and 04 guntas in Sy.No. 8/3 of the said village.
34. Further it is evident from perusal of Ex.D.7 original sale deed that defendants have executed registered sale deed dated 07/12/2000 in favour of defendant No.17 Smt. Bhavani Shetty. In turn she has executed Ex.D.8 copy of Gift Deed dated 30/07/2002 in favour of defendant No.17(a) grand daughter and thereby bequeathed the schedule property. Further it is evident from perusal of Ex.D.9 that the plaintiff and defendant No.18 have entered into an agreement/JDA 31 O.S. No.9363/2004 pertains to non agricultural property belongs to plaintiff. Ex.D.10 is the GPA executed by the plaintiff in favour of defendant No.18 to develop the property and to sell the same for consideration. Ex.D.11 is the supplementary agreement executed by the plaintiff in favour of defendant No.18 to the extent of 75068 square feet area out of Sy.No. 8/1, 8/3 and 8/4 of the said village. Ex.D.12 is the NA notification issued by the Dy. Commissioner, Bengaluru pertains to the property in dispute based on application filed by the vendor of defendant No.18. Ex.D.13 is the certified copy of the sale deed relied by defendant No.18 for having acquired title and possession over the schedule property. Ex.D.14 is the list of documents furnished with bank authority. Ex.D.15 is the commencement certificate issued by the BDA so as to use the schedule property as commercial-software technology park in favour of defendant No.17(a) vendor of defendant No.18 company. Ex.D.16 is the certified copy of sale deed pertains to portion of the property bearing Sy.No. 8/3 of the said village. Ex.D.17 to 19 are the mutation extracts standing in the name of defendant No.17 and 17(a).
35. On perusal of Ex.D.20 to 35 reveal that the record of rights are standing in the name of vendors of defendant No.18. Ex,D.36 is the NOC letter issued by BESCOM. Ex.D.37 is the approved sketch with plan pertains to the property of defendant No.18 company situated at Sy.No. 8/1, 8/3 and 8/4 of Challaghatta village, wherein floor area ratio/FAR 32 O.S. No.9363/2004 mentioned as 45105.55 square meter. Ex.D.38 is the occupancy certificate for commercial building constructed in the said properties. Ex.D.39 is the tax paid receipt standing in the name of defendant No.18 company. Ex.D.40 is the Khatha certificate issued by the BBMP pertains to the property in dispute relating to Sy.No. 81/3 and other properties related to defendant No.18 company. Ex.D.41 to 51 are the photographs/CD depict about the existence of commercial building in the schedule property along with other properties belong to plaintiff and defendant company. Ex.D.52 and 53 are the NIL encumbrance certificate issued by the office of concerned sub-registrar pertains to the schedule property for the period 1990 to 2004 i.e. till the suit year, wherein the name of the vendor of defendant No.18 and her predecessor mentioned in respect of the schedule property bearing Sy.No. 8/3 to the extent of 1 acre 36 guntas of Challaghatta village.
36. It is another contention of the plaintiff that, based on the said agreement of sale he was being inducted in the possession of the schedule property from the date of execution dated 31/03/1995, as such relying on the decisions AIR 1982 SC P 989 and AIR 1998 KAR 389 the learned counsel for plaintiff would contend that plaintiff is entitled to protect his possession under Section 53(A) of T.P. Act. Per contra, the learned counsel for defendant No.18 relying on the decisions (2019) 3 SCC 704, (2018) 9 SCC 805, (1996) 4 SCC 526 and (1995) 5 SCC 115 referred supra urged that since the plaintiff has failed to prove the due execution and ready and willingness, as such he is not entitled for the said protection.
33O.S. No.9363/2004
37. It is pertinent to note here that though the plaintiff has also claimed the relief of permanent injunction against the defendants stating that he was being inducted into the possession of the schedule property based on specific performance of contract, as such non registration or insufficiently stamped agreement as per section 17 A of registration Act and it shall have no effect for the purpose of Section 53A of the Act, but it is settled that party to the agreement of sale in connection with specific performance of contract can seek the protection under Section 53(A) of the T.P. Act as shield only and he cannot use it as sword. Further the proviso to amended Section 49 of Registration Act states that if the plaintiff wants to take benefit of section 53A of the T.P Act then it should be registered.
38. In this regard the Hon'ble Apex court in the case of Sardar Govind Rao Mahadik and another referred supra observed that, 'the person claiming the benefit of part performance must always be shown to be ready and willing to perform his part of contract, if failed to prove the same, then he will not qualify for the protection of the doctrine of part performance'. Further the Hon'ble Apex Court has also held in the case of Suraj Lamp and Industries referred supra by the counsel for plaintiff that, 'transactions of the nature of GPA sales, sale agreement or Will transfers do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transport of immovable property except in genuine transactions'.
34O.S. No.9363/2004
39. It is to be noticed that, the full bench of our Hon'ble High Court by referring judgments of privy council and judgments of Hon'ble Apex Court has held in the case of Narasimha Shetty (D) Vs. Padma Shetty (AIR 1998 KAR 389) referred supra by the counsel for plaintiff himself that, 'so long as the transferee has done and willing to perform his part of contract or is always ready to abide by the terms of the contract, then only the transferee is entitled to avail of his statutory right to protect his possession as a shield but not as a sword'. So now it is clear that though transferee under an agreement of sale can protect his possession by way of defense in case defendants filed a suit to dispossess from the disputed property, but he cannot avail the said statutory right to protect his possession by filing such a suit against the executers or transferrers.
40. The learned counsel for the plaintiff relying on the provisions of Section 28 of registration Act urged that Ex.D.8 Gift Deed executed and registered before the office of sub Registrar Madikeri is without jurisdiction. But a plain reading of the said provision makes it clear that every document mentioned in Section 17, shall be presented for registration in the office of a sub Registrar within whose sub district the whole or some portion of the property to which such document relates is situate, as such in the circumstances of the case contention of plaintiff on this aspect cannot be sustained. So on careful perusal of the oral evidence of D.W. 1 along with the aforesaid documents relied by the defendant No.18 indicates that the authorized signatory of the said company has established by 35 O.S. No.9363/2004 making its version as reasonably probable by producing cogent, oral and documentary evidence before this court to believe that it has become bona fide purchaser of the property in dispute based on Ex.D.1 the copy of registered sale deed dated 04/12/2004. (Ex.D.1/original sale deed is returned to defendant No.18). Therefore the subsequent sale between Defendant 1 to 7 and late Muniswamy and Muniyamma, held was valid and protected by section 19(b) of specific Relief Act, as such the defendant No.18 company who purchased the schedule property for value in good faith without knowledge or notice of the prior sale agreement dt.31.03.1995 and was thus a bona fide purchaser for value in good faith without notice, was not affected by the provisions of Section 52 of the Transfer of Property Act. On the other hand viewed from any angle plaintiff has failed to prove due execution of Ex.P.1 unregistered agreement of sale, its possession and remaining part payment as claimed in the plaint. For these reasons any amount of arguments advanced by the learned counsel for the plaintiff on this aspect do not have weight and cannot be accepted. On the other hand, written arguments filed by learned counsel for the defendant No.18 holds good. Hence, I answer Issue No.1&2 are partly in the affirmative, Issue No.3 & 4 are in the Negative and Addl. Issue No.1 in the affirmative.
41. ADDL. ISSUE No.2:- The defendants would also contend that, there is a delay and latches on the part of the plaintiff, as such the suit of the plaintiff is barred by limitation. In this regard, it is contended in the written arguments filed by 36 O.S. No.9363/2004 the counsel for the defendants that, suit of the plaintiff is barred by limitation as such the alleged agreement has become unenforceable. So as held by the full bench decision of our Hon'ble High Court referred supra the transferee under an agreement to sell can resist a suit for possession by the owner of the property even though there is failure on his part to bring a suit for specific performance within the period of limitation, but in the case on hand the agreement of sale in question was executed in the year 1995 and plaintiff has filed the above numbered suit in the year 2004 without having got extended the period of execution of regular sale deed. Further in this regard as observed in 2010(4)Kar.L.J.207, it is settled that, the period of limitation is three years from the date fixed for performance or the plaintiff has noticed that performance is refused. A plain reading of Article 54 of the Limitation Act reads as under:-
54. For specific performance of a contract- Period of limitation is three years- from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused".
42. In this connection, as observed supra while discussing on Issue No.1 to 4 it is evident that admittedly both the parties have not extended the period for execution of regular sale deed. The plaintiff has neither made further payment from the date of agreement till the date of suit nor issued legal notice within 11 months time fixed in the agreement calling upon the defendant 1 to 13 to execute the regular sale deed by receiving balance sale 37 O.S. No.9363/2004 consideration amount. It is not the case of the plaintiff that whenever he expressed his willingness to get execute the sale deed by paying balance sale consideration amount the defendants themselves evaded. In para 10 of the plaint cause of action to file the suit shown as, on the date of execution of agreement of sale dt.31.03.1995 and subsequently on execution of various receipts by the defendants and on 1.12.2004. The plaintiff has filed the above numbered suit on 16/12/2004, which was nearly about 9 years 08 months 15 days after expiry of the limitation period stipulated in the agreement to get the sale deed executed in favour of the plaintiff, as such the suit of the plaintiff is also hopelessly barred by time. Hence, I answer Addl. Issue No.2 in the affirmative.
43. ISSUE No.5 :-It is to be noticed that in view of my findings on Issue Nos.1 to 4 & Addl. Issue No.1 and 2 the plaintiff is not entitle for the relief of Specific performance of contract and permanent injunction. But, plaintiff has also prayed alternatively to order for refund of advance amount. As observed in para 23 supra the defendants 1 to 13 are liable to refund advance amount of Rs.14,28,500/-. In this regard our Hon'ble High court has held in the case of Khamarunnisa //Vs// Mudalappa reported in ILR 2003 KAR 4535 at point (c) that Section 21 of Specific Relief Act stipulates how court should exercise its power to award compensation / damages for any breach of contract - On facts held - Relief of return of earnest money in a suit for specific performance - even if the suit is 38 O.S. No.9363/2004 dismissed, in exercise of the discretionary power without there being a specific pleading to that effect can be granted. Therefore, having regard to the facts and circumstances of the case and keeping in mind the ratio laid down in the said decision I have to hold that though the plaintiff is not entitle for the relief of specific performance/permanent injunction or damages in substitution of specific performance, is certainly entitle to get back the earnest money of Rs.14,28,500/- paid by him under the agreement of sale dated 31.03.1995 and subsequent receipts from the defendants 1 to 13. As such the arguments advanced by the learned counsel for the plaintiff to that extent holds good. Consequently the suit of the plaintiff is deserves to be partly decreed without cost. Hence, I answer Issue No.5 is partly in the affirmative.
44. ISSUE No.6 :- For the forgoing reasons, I proceed to pass the following:
OR D E R The suit of the plaintiff is partly decreed.
The defendant No.1 to 13 are hereby directed to refund the advance amount of Rs.14,28,500/- with interest at the rate of 6% p.a., from the date of agreement till its realization to the plaintiff within three months.
39
O.S. No.9363/2004
Consequently, the claim in
respect of the relief of specific
performance of contract and
permanent injunction stands
dismissed.
There shall be no order as to
costs.
Draw decree accordingly.
(Typed to my dictation by the Stenographer directly on computer, corrected, signed by me and then pronounced in the open Court this the 7 th day of January, 2020.) ( C.D.KAROSHI ) V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU ***** :ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW.1 : K.S. Sunil Gupta
WITNESSES EXAMINED FOR THE DEFENDANTS:
DW.1 : B.S. Mohan
DOCUMENTS EXHIBITED FOR THE PLAINTIFFS:
Ex.P.1 Agreement of sale dated 31/03/1995
Ex.P.1(a) Signature of defendant Ramaswamy
Ex.P.1(b) Signature of defendant Ramanna
Ex.P.1(c) Signature of Muthappa
Ex.P.1(d)
Ex.P.1(e)
Signature of plaintiff
Signature of S.N. Sathyanarayana
Ex.P.1(f) Signature of Kailash
Ex.P.1(g) Signature of witness P. Venkatesh
Ex.P.2 Endorsement
Ex.P.3 Receipt dated 26/07/1999
Ex.P.3(a) Signature of Muthappa
Ex.P.4 Receipt dated 04/02/1996
Ex.P.4(a) Signature of Muthappa
Ex.P.4(b) Signature of witness Venkatesh
40
O.S. No.9363/2004
Ex.P.5 Receipt dated 25/10/1997
Ex.P.5(a) Signature of Muthappa
Ex.P.6 Receipt dated 11/08/1997
Ex.P.6(a) Signature of Ramanna
Ex.P.7 Receipt dated 21/04/1997
Ex.P.7(a) Signature of Ramanna
Ex.P.8 Receipt dated 12/04/1997
Ex.P.8(a) Signature of Ramanna
Ex.P.9 Receipt dated 07/06/1995
Ex.P.9(a) Signature of Muthappa
Ex.P.9(b) Signature of Ramanna
Ex.P.9(c) Signature of Ramaswamy
Ex.P.9(d) Signature of Lakshmaiah Reddy
Ex.P.9(e) Signature of Krishnappa
Ex.P.9(f) Signature of Venkatesh
Ex.P.9(g) Signature of Muniyappa
Ex.P.10 Endorsement dated 08/06/1995
Ex.P.10(a) Signature of Ramanna
Ex.P.10(b) Signature of M. Ramaswamy
Ex.P.10(c) Signature of M. Muthappa
Ex.P.10(d) Signature of C. Muniyappa
Ex.P.11 Receipt for having received Rs.1,00,000/-
Ex.P.12 Receipt dated 26/02/1996
Ex.P.12(a) Signature of Muthappa
Ex.P.13 Receipt for having received Rs.1,00,000/-
Ex.P.13(a) Signature of Muthappa
Ex.P.14 Receipt for having received Rs.25,000/-
Ex.P.14(a) Signature of A. Muthappa
Ex.P.15 Receipt for having received Rs.25,000/-
Ex.P.15(a) Signature of Muthappa
Ex.P.16 Receipt for having received Rs.1,00,000/-
Ex.P.17 Receipt for having received Rs.1,00,000/-
Ex.P.17(a) Signature of Muthappa
DOCUMENTS EXHIBITED FOR THE DEFENDANTS:- Ex.D.1 Certified copy of Ex.D.1 sale deed dated 04/12/2004 Ex.D.2 Certified copy of sale deed dated 04/12/2004 Ex.D.3 Extract of the resolution of defendant No.18 dated 10/04/2013 Ex.D.4 Certified copy of the sale deed dated 18/06/1952 Ex.D.5 Certified copy of the sale deed dated 27/06/1998 Ex.D.6 Certified copy of the sale deed dated 24/07/2000 Ex.D-7 Certified copy of the sale deed dated 07/12/2000 41 O.S. No.9363/2004 Ex.D.8 Certified copy of the Gift Deed dated 20/07/2002 Ex.D.9 Certified copy of the agreement dated 01/03/2004 Ex.D.10 Certified copy of the General Power of Attorney dated 01/03/2004 Ex.D-11 Certified copy of the supplemental agreement dated 12/03/2004 Ex.D-12 Conversion order passed by the Special Deputy Commissioner dated 25/11/2004 Ex.D-13 Certified copy of the sale deed dated 04/12/2004 Ex.D-14 Certificate issued by Manager, HDFC Ltd., in respect of custody of documents by the bank Ex.D-15 Endorsement issued by BDA dated 09/11/2005 Ex.D-16 Certified copy of the sale deed dated 17/08/2010 Ex.D-17 Certified copy of the mutation register extract Ex.D-18&19 MR extract Ex.D-20 to 35 RTC extract Ex.D-36 BESCOM letter dated 27/07/2006 Ex.D-37 Plan sanction letter dated 03/05/2007 issued by BDA along with plan Ex.D-37(a) Plan Ex.D-38 Permission issued by the BDA to occupy the land dated 05/05/2007 Ex.D-39 Tax paid receipt Ex.D-40 Certificate issued by BBMP dated 12/02/2013 Ex.D-41to51 Photos Ex.D-51 CD Ex.D-52&53 Encumbrance Certificates ( C.D.KAROSHI ) V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU ***** 42 O.S. No.9363/2004 Judgment pronounced in open Court vide separate order.
O R DE R The suit of the plaintiff is partly decreed.
The defendant No.1 to 13 are hereby directed to refund the advance amount of Rs.14,28,500/- with interest at the rate of 6% p.a., from the date of agreement till its realization to the plaintiff within three months.
Consequently, the claim in
respect of the relief of specific
performance of contract and
permanent injunction stands
dismissed.
There shall be no order as to
costs.
Draw decree accordingly.
( C.D.KAROSHI )
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
1
O.S. No.9363/2004