Karnataka High Court
Sri S R Rajaiah vs Sri B K Narendra Babu on 29 April, 2026
NC: 2026:KHC:24085-DB
RFA No. 848 of 2015
C/W MFA No. 4414 of 2015
RFA No. 799 of 2015
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF APRIL 2026
PRESENT
HON'BLE MR. JUSTICE D. K. SINGH
AND
HON'BLE MS. JUSTICE TARA VITASTA GANJU
REGULAR FIRST APPEAL NO. 848 OF 2015 (SP)
C/W
MISCELLANEOUS FIRST APPEAL NO.4414 OF 2015 (CPC)
REGULAR FIRST APPEAL NO.799 OF 2015 (SP)
IN RFA No.848/2015 :
BETWEEN:
SRI. S.R.RAJAIAH
S/O LATE REVANNA,
AGED ABOUT 85 YEARS,
R/AT NO.574, 2NDCROSS,
JAYADEVA HOSPITAL ROAD,
NELAMANGALA TOWN,
BANGALORE RURAL DISTRICT-562123.
... APPELLANT
(BY SRI.IMRAN.A, ADVOCATE)
AND:
1. SRI. B.K.NARENDRA BABU
S/O S. KRISHNAPPA,
AGED ABOUT 42 YEARS,
RJ/AT NO.687, 9THCROSS,
BANGALORE,NAGASANDRA POST,
BANGALORE-560073.
2. SRI. S.R. MAHESH
S/O S.R. RAJAIAH,
AGED ABOUT 52 YEARS,
PERSONAL SECRETARY TO VICE-CHANCELLOR,
OFFICE OF THE VETERINARY COLLEGE,
1
NC: 2026:KHC:24085-DB
RFA No. 848 of 2015
C/W MFA No. 4414 of 2015
RFA No. 799 of 2015
HC-KAR
NEAR ALUMINI ASSOCIATION,
UNIVERSITY OF AGRICULTURAL SCIENCES,
HEBBAL, BANGALORE-24.
3. SMT. SUJATHA
W/O RAJASHEKAR,
AGED ABOUT 60 YEARS,
R/AT NO.467/4B,
"BILWASHRI", 3RD CROSS,
2NDMAIN ROAD, VIDYAPEETHA LAYOUT,
WARD NO.54, THYAGARAJANAGAR,
BANGALORE-560028.
4. SMT. S.R. RENUKA
W/O KUMAR,
AGED ABOUT 33 YEARS,
R/AT BEHIND VEERABHARESHWARA TRADERS,
IRON AND STEEL TRADERS,
B.M. ROAD, BIDADI,
BANGALORE RURAL DISTRICT-562109.
5. SRI. S.R. DAYANANDA
S/O S.R. RAJAIAH,
AGED ABOUT 44 YEARS,
R/AT 574, 2NDCROSS,
JAYADEVA HOSTEL ROAD,
NELAMANGALA TOWN,
BANGALORE RURAL DISTRICT-562123.
6. SRI. BALAJI
S/O VENKATASWAMY,
AGED ABOUT 55 YEARS,
PROPRIETOR M/S.VENTURA PROPERTIES,
NO.38/B, 1ST FLOOR, 4TH CROSS,
30TH MAIN, BTM 2NDSTAGE,
BANGALORE-560076.
... RESPONDENTS
(BY SRI. IRFANA NAZEER, ADVOCATE)
THIS RFA FILED UNDER ORDER 41 RULE 1 R/W SEC. 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 26.03.2015
PASSED IN OS NO.1700/2005 ON THE FILE OF THE PRESIDING
2
NC: 2026:KHC:24085-DB
RFA No. 848 of 2015
C/W MFA No. 4414 of 2015
RFA No. 799 of 2015
HC-KAR
OFFICER, FAST TRACK COURT-II BENGALURU RURAL DISTRICT,
BENGALURU DECREEING THE SUIT FOR SPECIFIC PERFORMANCE.
IN MFA NO.4414/2015
BETWEEN:
SRI. S.R. RAJAIAH
S/O LATE REVANNA,
AGED ABOUT 85 YEARS,
R/AT NO.574, 2ND CROSS,
JAYADEVA HOSPITAL ROAD,
NELAMANGALA TOWN,
BANGALORE RURAL DISTRICT-562 123.
... APPELLANT
(BY SRI. SHIVAKUMAR GOWDA., ADVOCATE)
AND:
1. SRI. B.K. NARENDRA BABU
S/O S. KRISHNAPPA,
AGED ABOUT 42 YEARS,
RJ/AT NO.687, 9TH CROSS,
BANGALORE, NAGASANDRA POST,
BANGALORE-560 073.
2. SRI. S.R. MAHESH
S/O S.R. RAJAIAH,
AGED ABOUT 52 YEARS,
PERSONAL SECRETARY TO VICE-CHANCELLOR,
OFFICE OF THE VETERINARY COLLEGE,
NEAR ALUMINI ASSOCIATION,
UNIVERSITY OF AGRICULTURAL SCIENCES,
HEBBAL, BANGALORE-24.
3. SMT. SUJATHA
W/O RAJASHEKAR,
AGED ABOUT 60 YEARS,
R/AT NO.467/4B,
"BILWASHRI", 3RD CROSS,
2ND MAIN ROAD, VIDYAPEETHA LAYOUT,
WARD NO.54, THYAGARAJANAGAR,
BANGALORE-560 028.
3
NC: 2026:KHC:24085-DB
RFA No. 848 of 2015
C/W MFA No. 4414 of 2015
RFA No. 799 of 2015
HC-KAR
4. SMT. S.R. RENUKA
W/O KUMAR,
AGED ABOUT 33 YEARS,
R/AT BEHIND VEERABHARESHWARA TRADERS,
IRON AND STEEL TRADERS,
B.M. ROAD, BIDADI,
BANGALORE RURAL DISTRICT-562 109.
5. SRI. S.R. DAYANANDA
S/O S.R. RAJAIAH,
AGED ABOUT 44 YEARS,
R/AT 574, 2ND CROSS,
JAYADEVA HOSTEL ROAD,
NELAMANGALA TOWN,
BANGALORE RURAL DISTRICT-562 123.
6. SRI. BALAJI
S/O VENKATASWAMY,
AGED ABOUT 55 YEARS,
PROPRIETOR M/S.VENTURA PROPERTIES,
NO.38/B, 1ST FLOOR, 4TH CROSS,
30TH MAIN, BTM 2ND STAGE,
BANGALORE-560 076.
... RESPONDENTS
(BY SMT. LAKSHMI IYENGAR, SR. COUNSEL FOR
SRI. IRFANA NAZEER, ADVOCATE FOR R1;
SRI. NARAYAN JHA, ADVOCATE FOR R2;
SRI. P.N. RAJESHWARA, ADVOCATE FOR R6(I);
R3-R5 ARE SERVED;
VIDE ORDER DATED 20.11.2024, R6(A-H) ARE
DELETED)
IN RFA NO. 799/2015
BETWEEN:
SRI. BALAJI
S/O VENKATASWAMY,
AGED ABOUT 55 YEARS,
PROPRIETOR,
M/S VENUTURA PROPERTIES,
NO.38/B, 1STFLOOR, 4THCROSS,
4
NC: 2026:KHC:24085-DB
RFA No. 848 of 2015
C/W MFA No. 4414 of 2015
RFA No. 799 of 2015
HC-KAR
30TH MAIN, BTM 2NDSTAGE,
BANGALORE-560076.
... APPELLANT
(BY SRI. RAJESWARA.P.N., ADVOCATE)
AND:
1. SRI. B.K. NARENDRA BABU
S/O S. KRISHNAPPA,
AGED ABOUT 42 YEARS,
R/AT NO.687, 9THCROSS,
BANGALORE, NAGASANDRA POST
BANGALORE-560 073.
2. S.R. RAJAIAH
S/O LATE REVANNA,
AGED ABOUT 75 YEARS,
R/AT NO.574, 2NDCROSS,
JAYADEVA HOSPITAL ROAD,
NELAMANGALA TOWN,
BANGALORE RURAL DISTRICT-562 123.
3. S.R. MAHESH
S/O S.R. RAJAIAH,
AGED ABOUT 52 YEARS,
PERSONAL SECRETARYTO VICE-CHANCELLOR,
OFFICE OF THE VETERINARY COLLEGE,
NEAR ALUMINI ASSOCIATION,
UNIVERSITY OF AGRICULTURAL,
SCIENCES, HEBBAL, BANGALORE-24.
4. SMT. SUJATHA
W/O RAJASHEKAR,
AGED ABOUT 60 YEARS,
R/AT NO.467/4G,
BILWASHRI, 3RDCROSS,
2NDMAIN ROAD, VIDYAPEETHA LAYOUT,
WARD NO.54, THYAGARAJANAGAR,
BANGALORE-560028.
5. SMT. S.R. RENUKA
W/O KUMAR,
AGED 33 YEARS,
RESIDING AT BEHIND,
5
NC: 2026:KHC:24085-DB
RFA No. 848 of 2015
C/W MFA No. 4414 of 2015
RFA No. 799 of 2015
HC-KAR
VEERABHADRESHWARA TRADERS,
IRON AN STEEL TRADERS,
B.M. ROAD, BIDADI,
BANGALORE RURAL DISTRICT-562 109.
6. S.R. DAYANANDA
W/O KUMAR,
S/O S.R. RAJAIAH,
AGED ABOUT 44 YEARS,
JAYADEVA HOSTEL ROAD,
NELAMANGALA TOWN,
BANGALORE RURAL DISTRICT-562 123
... RESPONDENTS
(BY SRI. IRFANA NAZEER, ADVOCATE)
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 26.03.2015 PASSED IN
O.S NO.1700/2005 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-II, BENGALURU (R)
DISTRICT, BENGALURU, DECREEING THE SUIT FOR
SPECIFIC PERFORMANCE.
THESE APPEALS HAVING BEEN RESERVED FOR JUDGMENT
ON 17.12.2025, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED
THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE D K SINGH
&
HON'BLE MS. JUSTICE TARA VITASTA GANJU
CAV JUDGMENT
(PER: HON'BLE MS. JUSTICE TARA VITASTA GANJU) TABLE OF CONTENTS I. Preface: ............................................................. 7 II. Brief Facts: ........................................................ 9 6 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR III. Impugned Judgment: ..................................... 14 IV. Contentions of the Appellants/Defendants: ... 15 V. Contentions of Respondent No.1/Plaintiff: .... 17 VI. Contentions of Respondent No.6/Def No.6: .... 19 VII. Issues for Consideration: ............................... 19 VIII. Analysis and Findings: .................................. 20
(a) The Agreement to Sell dated 24.12.2004: 20
(b) The Undisputed Facts: .............................. 26
(c) The Other Agreement To Sell: ................... 31
(d) The Evidence: .......................................... 37
(e) The Existence of Two Agreements: .......... 42
(f) The HMT Suit: ........................................... 49
(g) Violation of Interim Order: ...................... 52
(h) Readiness and Willingness: ..................... 64
(i) The HMT Plaint: ........................................ 83
(j) Lis Pendence ........................................... 94
(k) He who seeks equity must do equity: ...... 97 IX. Conclusion: ................................................... 99 I. Preface:
1. These appeals are directed against a common Judgment and Decree dated 26.03.2015 passed by the Fast Track Court-II, Bengaluru Rural District, Bengaluru, in O.S.No.1700/2005 (hereinafter referred to as the 'Impugned Judgment'). By the Impugned Judgment, the suit filed by the respondent No.1/plaintiff being O.S.No.1700/2005 has been decreed with costs. The appellant/defendant No.1 has been 7 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR directed to receive the balance sale consideration from the respondent No.1/plaintiff and to execute a registered sale deed along with defendant Nos.2, 3, 5 and 6 in favour of the respondent No.1/plaintiff, within two months from the date of the Judgment. In addition, it has been directed that if the defendants fail to execute the registered sale deed in favour of the plaintiff, the plaintiff is entitled to get the sale deed registered through the Court.
2. Three appeals have been filed before this Court.
2.1 The first appeal being RFA No.799/2015, has been filed by respondent No.6/defendant No.6, the subsequent purchaser, seeking to set aside the Impugned Judgment. 2.2 The second appeal being RFA No.848/2015, has been filed by the seller of the suit schedule property being the appellant/defendant No.1, also seeking to set aside the Impugned Judgment.
2.3 MFA No.4414/2015 has been filed by the appellant/defendant No.1/seller of the suit schedule property), also seeking to challenge the Impugned Judgment to the extent that it directs the attachment of the suit 8 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR schedule property of the seller as well as for the reason that the Impugned Judgment did not deal with I.A.No.5 filed by the respondent No.1/plaintiff under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC'), separately but treated the same as an Interlocutory Application without adducing separate evidence on the said application.
3. The parties are also referred to as they were arrayed before the learned Trial Court in O.S.No.1700/2005, for the sake of convenience.
II. Brief Facts:
4. Briefly, the facts are that the appellant/defendant No.1 acquired title to the property bearing Sy.No.87 measuring 6 acres, 27 guntas, in Bethanagere Village, Dasanapura Hobli, Nelamangala Taluk (hereinafter referred to as the 'suit schedule property') under and by virtue of a registered Sale Deed dated 21.10.1971. The appellant/defendant No.1, along with defendant Nos.2 to 5, executed an Agreement to Sell dated 24.12.2004 in favour of the respondent No.1/plaintiff, agreeing to sell the suit schedule property measuring 6 acres, 9 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR 27 guntas for a consideration of Rs.7,25,000/- per acre for a total sum of Rs.48,39,375/-(hereinafter referred to as the "ATS").
4.1 On the date of execution of this Agreement, the respondent No.1/plaintiff paid a sum of Rs.5,00,001/- as advance. Subsequently, on 24.02.2005, the respondent No.1/plaintiff paid a further sum of Rs.20,00,000/-, making a total advance of Rs.25,00,001/-. The balance sale consideration of Rs.23,39,375/- was agreed to be paid on or before 31.05.2005.
4.2 The respondent No.1/plaintiff asserted that he was always ready and willing to perform his part of the contract and issued a Legal Notice dated 20.05.2005 calling upon the defendants to receive the balance sale consideration and execute the sale deed. However, it is averred that the defendants failed to comply with the same, compelling the respondent No.1/plaintiff to institute the suit seeking a decree for specific performance of the ATS. 10
NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR 4.3 I.A.No.1 was filed setting out the plaintiff's apprehension that the said defendant may alienate or encumber the suit property and an interim injunction was granted on 03.08.2005 by the learned Trial Court restraining such acts and any alteration of the property, including formation of layout. The order continued thereafter. 4.4 The defendants entered appearance and filed their written statements contesting the suit. Appellant/ defendant No.1 denied the respondent No.1/plaintiff's readiness and willingness to perform his part of the contract. It was contended that time was the essence of the contract, and the respondent No.1/plaintiff failed to pay the balance of the sale consideration within the stipulated period. The appellant/defendant No.1 further contended that the value of the property had substantially increased and that the respondent No.1/plaintiff had not taken steps to complete the transaction within the agreed time. 4.5 During the pendency of the suit, an application in I.A.No.5 was filed being under Order XXXIX Rule 2A of the CPC, alleging violation of the order of interim injunction 11 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR passed by the learned Trial Court, by the appellant/ defendant No.1, whereby the appellant/defendant No.1 alienated the property to respondent No.6/defendant No.6. 4.6 The learned Trial Court also allowed I.A.No.2 for impleadment of proposed respondent No.6/defendant No.6, noting that as a subsequent purchaser in a suit for specific performance, he is a necessary and proper party. 4.7 Based on the pleadings filed by the parties, the learned Trial Court framed the following issues:
"(i) Whether the plaintiff proves that the defendants executed the Agreement dated 24.12.2004 agreeing to sell the suit schedule property in favour of the plaintiff for valuable a consideration of Rs.48,39,375/- and received sum of Rs.5 Lakhs as advance?
(ii) Whether the plaintiff further proves that in furtherance of the Agreement to Sell towards part performance of the contract, he has paid a sum of Rs.20 Lakhs to the defendants on 24.02.2005?
(iii) Whether the plaintiff proves that he was ever ready and willing to perform his part of the contract, but the defendants committed default in performing their part of the contract?
(iv)Whether the plaintiff is entitled for the relief of Specific Performance of Contract?
(v) What Decree or Order?"12
NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR 4.8 After respondent No.6/defendant No.6 was impleaded, an additional issue was framed by the learned Trial Court on 14.02.2010, which is set out below:
"Whether Defendant proves that he is a bonafide purchaser of the suit schedule property for value?"
;;; 5. To establish his case, the respondent No.1/plaintiff examined himself as P.W.1 and examined additional witnesses as P.W.2 to P.W.4, and produced several documents including the Agreement to Sell, Legal Notices, postal acknowledgements, sale deeds, and revenue records. On the other hand, appellant/defendant No.1 examined himself as D.W.1, while respondent No.6/defendant No.6 examined himself as D.W.2 and produced a witness DW-3 and documents, including the Agreement to Sell executed in his favour by the appellant/defendant No.1 for the suit schedule property.
5.1 After examining the oral and documentary evidence, the learned Trial Court held that the execution of the Agreement to Sell dated 24.12.2004 stood proved and that the receipt of advance sale consideration was duly established. The learned Trial Court further found that the 13 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR plaintiff had successfully demonstrated continuous readiness and willingness to perform his part of the contract, as evidenced by his conduct and the issuance of a Legal Notice calling upon the defendants to execute the sale deed. It was also observed that the appellants/defendants had failed to perform their reciprocal obligations under the agreement and could not take advantage of their own default. 5.2 Insofar as respondent No.6/defendant No.6 was concerned, the learned Trial Court held that the alleged subsequent purchase was hit by the doctrine of lis pendens and that respondent No.6/defendant No.6 could not claim to be a bonafide purchaser to defeat the rights of the respondent No.1/plaintiff.
III. Impugned Judgment:
6. The learned Trial Court decreed the suit and directed the defendants to execute the registered sale deed in favour of the respondent No.1/plaintiff upon receipt of the balance sale consideration within two months, failing which the respondent No.1/plaintiff was permitted to have the sale deed executed through the learned Trial Court. The learned 14 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR Trial Court further held that appellant/defendant No.1 had violated the said interim injunction and consequently ordered attachment of his immovable property. The learned Trial Court further directed that in the event no such property is available, appellant/defendant No.1 shall be detained in a civil prison for a period of one month.
6.1 As stated above, aggrieved by the said order passed on the application filed under Order XXXIX Rule 2A of the CPC, the appellant/defendant No.1 has preferred M.F.A. No. 4414/2015.
IV. Contentions of the Appellants/Defendants:
7. Learned counsel for the appellant/defendant No.1 contends that the Impugned Judgment is liable to be set aside on the following grounds:
7.1 That the learned Trial Court erred in decreeing the suit for specific performance without properly appreciating the pleadings and evidence on record. The respondent No.1/plaintiff failed to establish continuous readiness and willingness as required under Section 16(c) of the Specific Relief Act, 1963.15
NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR 7.2 The respondent No.1/plaintiff failed to prove financial capacity to pay the balance of the sale consideration within the stipulated time.
7.3 Learned counsel further submitted that the learned Trial Court failed to consider that time was the essence of the contract and the respondent No.1/plaintiff had failed to complete the transaction within the agreed period. It was argued that despite the expiry of the stipulated time, the respondent No.1/plaintiff did not tender the balance sale consideration nor take steps to complete the transaction, thereby disentitling him from seeking the equitable relief of specific performance.
7.4 Lastly, it was contended that the learned Trial Court failed to appreciate the defence raised by respondent No.6/defendant No.6, who claimed to be a bonafide purchaser for value. Learned counsel submitted that respondent No.6/defendant No.6 had entered into an Agreement to Sell with appellant/defendant No.1 and subsequently obtained a registered sale deed in his favour upon payment of the entire sale consideration. It was 16 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR therefore averred that the respondent No.6/defendant No.6 had acquired a valid title to the suit schedule property. Learned counsel averred that the findings recorded by the learned Trial Court are contrary to the material available on record and are therefore liable to be set aside. V. Contentions of Respondent No.1/Plaintiff:
8. Learned Senior Counsel appearing for the respondent No.1/plaintiff on the other hand submitted that the execution of the Agreement to sell dated 24.12.2004 in respect of the suit schedule property and receipt of substantial advance consideration by appellant/defendant No.1 is not in dispute. It is contended that the respondent No.1/plaintiff had paid Rs.5,00,000/- as an advance and a further sum of Rs.20,00,000/- thereafter, and the parties had agreed to execute the registered sale deed within the stipulated period. 8.1 It is further submitted that the respondent No.1 /plaintiff was always ready and willing to perform his part of the contract. In support of the same, reliance is placed on the evidence of PW-1 to PW-4; the sale deeds are annexed as Ex.P-39 to Ex.P-49 and the Legal Notice dated 17 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR 20.05.2005, which, according to the respondent No.1/plaintiff, clearly establishes that he had approached the defendants with the balance sale consideration and demanded execution of the sale deed.
8.2 The learned Senior counsel further seeks to rely upon the statement of PW-1 dated 16.05.2005 wherein the respondent No.1/plaintiff had stated that PW-1 demanded that defendant Nos.1 to 5 perform their part of the contract and execute the sale deed. Reliance is also placed on the cross-examination of PW-1 in this behalf. 8.3 The learned Senior Counsel in addition also has placed reliance on the evidence of PW-2 to PW-4 on record, who affirmed to the fact that it was the defendant Nos.1 to 5 who postponed the registration of the Sale Deed and demanded additional money from the respondent No.1/plaintiff to execute the same. Thus, the Sale Deed was not executed. 8.4 Learned Senior Counsel further contended that, despite the subsisting interim order, appellant/defendant No.1 alienated the suit schedule property in favour of respondent 18 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR No.6/defendant No.6, and such conduct clearly disentitles the appellant/defendant No.1 from seeking any relief from the Court. It is therefore submitted that the learned Trial Court, upon proper appreciation of the evidence on record, has rightly decreed the suit for specific performance, and the Impugned Judgment and decree do not call for interference. VI. Contentions of Respondent No.6/Def No.6:
9. Learned Counsel for respondent No.6/defendant No.6 contends that the Impugned Judgment and decree dated 26.03.2015 are liable to be set aside as the finding on readiness and willingness is perverse. The respondent No.1/plaintiff failed to establish financial capacity and continuous readiness within the stipulated period ending 31.05.2005. Though part payment of Rs.20,00,000/- was made, the balance consideration was admittedly not paid within time, and subsequent bank entries do not cure this defect.
VII. Issues for Consideration:
10. In view of the rival submissions advanced by the learned counsel for the parties and upon perusal of the 19 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR material available on record, the following issues arise for consideration before this Court:
(i) Whether the respondent No.1/plaintiff has proved the execution of the Agreement to Sell dated 24.12.2004 and his readiness and willingness to perform his part of the contract?
(ii) Whether respondent No.6/Defendant No.6 has established that he is a bona fide purchaser for value without notice of the Agreement to Sell?
(iii) Whether the Trial Court was justified in holding that appellant/defendant No.1 had violated the interim injunction order dated 03.08.2005 and in imposing consequences under Order XXXIX Rule 2A CPC?
(iv) Whether the Impugned Judgment and Decree dated 26.03.2015 passed in O.S. No.1700/2005 warrants any interference by this Court?
VIII. Analysis and Findings:
(a) The Agreement to Sell dated 24.12.2004:
11. As stated above, the sellers have challenged the Impugned Judgment stating that since time was of the essence of contract and the respondent No.1/plaintiff did not make payment of the amounts in the specified time, the agreement came to an end. It was further stated that the respondent No.1/plaintiff did not have financial capacity and has failed to prove his readiness and willingness to perform the Agreement to Sell. An examination of the Agreement to 20 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR Sell dated 24.12.2004 executed between the respondent No.1/plaintiff and the appellant/defendant No.1 and respondent Nos.2 to 5/defendant Nos.2 to 5 reflects that the ATS sets out that the sellers have agreed to the sell the suit schedule property at a price of Rs.7.25 Lakhs per acre, totalling to Rs.48,39,375/-. It further sets out that an advance sale consideration of Rs.5,00,001/- by way of cash has been received while the balance sale consideration of Rs.43,39,375/- is to be received within five months from the date i.e. by 31.05.2005. The ATS further sets out that the balance payment has to be made within the stipulated time failing which the advance will be forfeited as well as, in case the registered sale deed is not executed by the sellers, the purchasers are at liberty to take legal action seeking the land as well as the double the amount of advance paid from the seller and legal representatives. It further states that the claim can be made as against the other immovable and movable properties. The relevant extract of the translated copy of the ATS dated 24.12.2004 is set out below:
"On the Twenty Fourth day of December Two Thousand Four (24.12.2004):21
NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR IN FAVOUR OF:
Sri. B.K. Narendra Babu, S/o Sri. S. Krishnappa, aged about 32 years, residing at NO.687, 9th Cross, Bagalagunte, Nagasandra Post, Bengaluru - 560 073, By:
Sri. S.R. Rajaiah, S/o Sri. Ravenna, aged about 75 years, residing at NO.574, 2ndCross, Sri Jayadeva Hostel Road, Nelamangala Town, Bengaluru Rural District -- 562 123, and my children namely, (1) Smt. S.R. Sujatha, aged about 50 years, (2) Sri. S.R. Mahesh, aged about 42 years, (3) Smt. S.R. Renuka, aged about 35 years and (4) Sri. S.R. Dayananda, aged 34 years, have together, agreed and executed this deed of Agreement of conditions of absolute sale, witnesseth as follows:
xxx xxx xxx In respect of such land in our self-occupation and enjoyment, when you after seeing the same have shown interest to purchase, as we are in urgent need of money for our family necessities, we too have agreed to sell the Schedule land, a price at the rate of Rs.7,25,000/-
(Rupees Seven Lakh Twenty Five Thousand only) per one Acre of land is fixed in the presence of witnesses, accordingly it is agreed to sell total extent of 6 acres 27 guntas of land, at Rs.48,39,375/- (Rupees Forty Eight Lakhs Thirty Nine Thousand Three hundred and Seventy Five only) and we have received an advance sale consideration of Rs.5,00,001/- (Rupees Five Lakhs One Rupee only) by way of cash in the presence of the below mentioned witnesses. We are obligated to receive from you the remaining sale consideration amount of Rs.43,39,374/- (Rupees Forty Three Lakhs Thirty Nine Thousand Three Hundred and Seventy Four only) within Five (5) months from the aforesaid date i.e., within 31.05.2005.
Within the stipulated period if you pay the remaining amount to us, and at your cost prepare the Sale Deed/GPA and other documents and call upon us to execute the sale deed in your name or in the name of your nominee, we are bound to execute the above said documents as per this agreement. If you fail to make payment of the balance sale consideration within the above stipulated time and fail to get the above documents registered, we will forfeit the advance amount paid by you.
22
NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR In case, if we do not execute the Registered Sale Deed in spite of you paying the balance amount to us, then, as per this agreement we are bound and you are entitled to take legal action against us seeking the schedule land or to recover double the advance amount paid by you from us or from our legal representatives as also, you can claim from our other immovable and movable properties."
[Emphasis Supplied] 11.1. It is the case of the appellant/defendant No.1 that respondent No.1/plaintiff did not have the balance sale consideration available with him and that even the evidence which has been placed on record by the respondent No.1/plaintiff does not reflect that he in fact had the balance sale consideration. Reliance is placed on the bank account statement produced by the respondent No.1/plaintiff as well as on the sale deeds to submit that no document has been produced to show that during the period from December 2004 up to May 2005, necessary funds were available with the respondent No.1/plaintiff. The appellant/defendant No.1 has further placed reliance upon the sale deeds which have been placed on record by the respondent No.1/plaintiff to submit that respondent No.1/plaintiff has produced Ex.P39 to Ex.P49 to submit that even the sale deeds only totalled to Rs.13,83,500/- and the sale deeds from P45 to P49 are 23 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR pursuant to the expiry of the five months period. Thus, it is contended that the learned Trial Court erred in giving a finding on the readiness of the respondent No.1/plaintiff to perform his part of the contract. The appellant/defendant No.1 has also contended that the fact that remaining respondents (respondent Nos.2 to 5) who are the children of appellant/defendant No.1 were required to execute the sale deed is an incorrect finding since the properties were clearly the self-acquired properties of the appellant/defendant No.1 and not ancestral properties. The appellant/defendant No.1 has also averred that the statement of the witnesses, P.Ws.2 to 4 do not disclose that respondent No.1/plaintiff actually went with cash to the house of the appellant/defendant No.1, thereby fulfilling the ATS. In essence, it is the case of the appellant/defendant No.1 that as on 31.05.2005, the respondent No.1/plaintiff was unable to establish that he had the money available with him and thus the Impugned Judgment could not have been passed.
12. On the other hand, it is the respondent No.1/plaintiff's contention that qua the readiness of respondent 24 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR No.1/plaintiff, the evidence of not only P.W.1 but also his other witnesses P.Ws.2 to 4 was given. It is further contended that the respondent No.1/plaintiff sold properties under the sale deeds which were at Ex.P39 to Ex.P49 to purchase the suit schedule properties. It is contended that in any event, the balance sale consideration was to be paid in cash as was the advance payment amount. Thus, the issue of there not being sufficient bank balance does not come into consideration. It has been averred that the appellant /defendant No.1 got a purchaser for higher value and hence failed to make the sale in favour of respondent No.1/plaintiff. The entire advance sale consideration of Rs.25,00,000/- was received in cash by the appellant/defendant No.1 and despite the Legal Notice dated 20.05.2005, calling upon the appellant/defendant No.1 to register the sale deeds, the appellant/defendant No.1 failed to do so and also refused to have his children, the respondent Nos.2 to 5 be made available for the execution of the Sale Deed despite all of them executing the ATS. Reliance is placed in this behalf on the evidence of P.W.2/Shivakumar and P.W.3/Sathish Babu, who stated that they had accompanied the respondent 25 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR No.1/plaintiff three to four times to the house of the appellant/defendant No.1 and despite of which, the sale transaction did not fructify. In addition, it is contended that the ATS was not validly terminated. It is not disputed that the appellant/defendant No.1 violated the interim order dated 03.08.2005 and alienated the suit schedule property in favour respondent No.6/defendant No.6. This is also admitted by appellant/defendant No.1 in the cross- examination dated 07.01.2012 that on 01.09.2006, the property was sold as per Ex.P25 and as on that date, there was an injunction in force. Since the appellant/defendant No.1 was in violation of the injunction order passed by the learned Trial Court on 03.08.2005, no relief could be granted to the appellant/defendant No.1 nor to the subsequent purchaser, defendant No.6 / respondent No.6.
(b) The Undisputed Facts:
13. The undisputed facts in the present case are that an Agreement to Sell dated 24.12.2004 was entered into between the parties. The ATS provided for total sale consideration of Rs.48,39,375/-. It is not disputed that the 26 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR after the advance payment of Rs.5,00,001/-, a further amount of Rs.20,00,000/- was paid by the purchaser to the seller on 24.02.2005. Thus, an advance sale consideration of more than 50% being Rs.25,00,001/- was paid. The ATS set out that the payment should be made within five months by 31.05.2005. The Legal Notice dated 20.05.2005 (Ex.P-3) was sent on behalf of the respondent No.1/plaintiff to the appellant/defendant No.1 and respondent Nos.2 to 5 stating that the balance sale consideration of Rs.23,39,375/- was available with the respondent No.1/plaintiff and that the appellant/defendant No.1 is avoiding execution of the sale deed. It further sets out that on 16.05.2005, the respondent No.1/plaintiff had come to meet the appellant/defendant No.1 with the balance sale consideration along with Sri. B.V. Pattabhiramaiah, the first witness to the ATS and Sri. Jayaprakash and Sri.Y.B. Shamanna and that the appellant/defendant No.1 avoided meeting the respondent No.1/plaintiff. The Legal Notice (Ex.P3) further called upon the appellant/defendant No.1 to execute the registered sale deed by receiving balance sale consideration, on or before, 31.05.2005.
27
NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR 13.1 The Legal Notice was replied to on behalf of the appellant/defendant No.1 on 14.06.2005 (Ex.P4) denying the contents of the notice sent by the respondent No.1/plaintiff. The reply notice also further instructed respondent No.1/plaintiff to be ready to come with the balance amount and that the sale deed be executed after the 16th of this month i.e. 16th of June 2005. In addition, it states that the appellant/defendant No.1 is ready to execute the sale deed after receiving the balance amount of Rs.23,39,395/- and also Rs.2,00,000/- for 0-11 guntas kharab land. The relevant extract is below:
"2. My client further instruct that the said property being a self acquired property my client always ready to execute the sale deed to complete my client's part performance of the contract and to receive the sale consideration. Therefore, direct you client to come with a balance amount after 16th of this month by fixing the specific date to take the sale deed and my client is ready to execute the sale deed after payment of the balance sale consideration of Rs.23,39,395/- and also 0-11 guntas kharab amount to Rs.2,00,000/- as agreed by your client.
Therefore, please advice your client to get the sale deed by fixing the specific date after the 16th of this month and my client will ready to execute the sale deed. This is for your information."
[Emphasis Supplied] 28 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR 13.2 Thus an extra demand was made by the appellant/defendant No.1. This notice was followed by rejoinder notices (Ex.P6) sent on behalf of respondent No.1/plaintiff and (Ex.P7) sent as its reply by appellant/defendant No.1.
14. The principal contention of the respondent No.1/plaintiff in the Legal Notice and Rejoinder Notice was that the sale deed would need to be executed not only by the appellant/defendant No.1 but also by his son and daughters, as was agreed to and followed in the ATS. Also the time for performance of the contract was extended by the appellant/defendant No.1 from 31.05.2005 to at least a month thereafter, since the date for execution of sale deed as stated in the Reply Notice was extended to one month from 16.06.2005. The respondent No.1/plaintiff also set out that there was no agreement to pay Rs.2,00,000/- extra for the kharab land.
14.1 Since the sale deed was not executed, respondent No.1/plaintiff filed a suit on 23.05.2005. The learned Trial Court while issuing notice granted an ad-interim stay from 29 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR alienating, transferring the suit schedule property. The appellant/defendant No.1 and respondent Nos.2 to 5 were present/represented before the Trial Court on the next date, i.e., 19.11.2005 and continued to appear thereafter. Thus the interim order was duly served.
14.2 Despite the pendency of the interim order, on 01.09.2006, the appellant/defendant No.1 along with respondent Nos.2 and 3 executed the sale deed (Ex.P25) selling the suit schedule property in favour of the respondent No.6/defendant No.6. In addition, on a day prior, on 30.08.2006, a release deed (Ex.P26) was executed by Smt. S.R. Sujatha and Smt. S.R. Renuka, who are the daughters of appellant/defendant No.1 and are respondent Nos.4 and 5 in these appeals, in favour of the appellant/defendant No.1. 14.3 A Written Statement was filed by appellant/ defendant No.1 wherein the ATS was admitted as well as the advance consideration of Rs.25,00,000/-. It was stated therein that since the respondent No.1/plaintiff failed to pay the balance sale consideration within five months, the ATS came to an end on account of the breach by the respondent 30 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR No.1/plaintiff. It was also admitted that the appellant/defendant No.1 asked for additional amount of Rs.2,00,000/- in the Written Statement for the kharab land, even though it was not reflected in the ATS. 14.4 I.A.No.2 was filed by respondent No.1/plaintiff seeking impleadment of the respondent No.6/defendant No.6 as the subsequent purchaser of the suit schedule property. By the order of the learned Trial Court dated 01.12.2006, the respondent No.6/defendant No.6 was impleaded as a necessary party to the suit. The respondent No.6/defendant No.6 also filed his written statement on 02.08.2007.
(c) The Other Agreement To Sell:
15. An examination of the Written Statement dated 02.08.2007 which has been filed by respondent No.6/defendant No.6, the subsequent purchaser, shows that it is the case of respondent No.6/defendant No.6 that the appellant/defendant No.1 had prior to executing the ATS with respondent No.1/plaintiff, entered into an Agreement to Sell dated 04.11.2004 with respondent No.6/defendant No.6 for purchasing the suit schedule property for Rs.1,86,90,000/- (hereinafter referred to as the 'Earlier ATS'). In addition, it is 31 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR averred that on that date, respondent No.6/defendant No.6 had paid a sum of Rs.10,00,000/- by way of cash and appellant/defendant No.1 had handed over possession of the suit schedule properties along with all original documents in respect thereof to respondent No.6/defendant No.6. It is stated that thereafter that respondent No.6/defendant No.6 has been in possession and enjoyment of the suit schedule property and periodically made payments over the period of time till the sale deed finally got executed on 01.09.2006. The relevant extract of the Written Statement filed by respondent No.6/Defendant No.6 is set out below:
````` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ```` ``` ``` ```` ``` ``` ` ````` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ```` ``` ``` ```` ``` ``` ` ````` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ```` ``` ``` ```` ``` ``` ` ````` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ``` ````` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ```` ``` ``` ```` ``` ``` ` ````` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ```` ``` ``` ```` ``` ``` ` ````` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ```` ``` ```` ``` ``` ```` ``` ``` ```` ``` ``` ``
"3. The averments in Para 2, 3, 4, 5 & 6 not being within the knowledge of this defendant are denied, putting the plaintiff to strict proof to the same.
WITHOUT PREJUDICE to what is stated above, this defendant begs to submit as follows:
a) It is submitted that this defendant had earlier entered into an Agreement to Sell dated 04.11.2004 with the 1st defendant herein to purchase the suit schedule property for a valuable consideration of Rs.1,86,90,000/-. As on date of entering into Agreement to Sell as aforesaid, this defendant had paid a sum of Rs.10,00,000/- by way of cash and the 1st defendant had handed over possession of the schedule property along with all the original documents to this defendant. Thereafter, this defendant has been in possession and enjoyment of the suit schedule property and has made periodically payments over a period of time and finally got the sale deed executed by the 1st defendant in his favour on 01.09.2006. This defendant is not aware of the alleged agreement between the 32 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR plaintiff and the 1st defendant. In any case, since the Agreement to Sell between this defendant and the 1stdefendant was earlier in point in time, the alleged subsequent agreement dated 24.12.2004 between the plaintiff and the 1st defendant, which is sought to be enforced in this suit, is null and void and unenforceable in law. This defendant is a bonafide purchaser for value in good faith and has perfected his title subsequent to the registration of the sale deed and has been in exclusive possession and enjoyment of the same by exercising all rights of ownership. Under the circumstances, the contention of the plaintiff that he is entitled for the relief of specific performance of the Agreement to Sell entered into between himself and the 1st defendant is wholly untenable. The plaintiff is not entitled to any discretionary relief at the hands of this Hon'ble Court and as such the suit is liable to be dismissed.
[Emphasis Supplied] 15.1 The respondent No.6/defendant No.6 further states that he has paid the entire sale consideration and that the registered sale deed dated 01.09.2006 (Ex.P25) was executed by the appellant/defendant No.1 along with his two sons respondent Nos.2 and 5 in favour of respondent No.6/defendant No.6. The relevant extract of the examination in chief by respondent No.6/defendant No.6 dated 09.02.2012 is set out below:
"2. I state that the 1st defendant is the absolute owner of the suit schedule property measuring 6 Acres 27 guntas in Sy.No.87 of Bethanagere Village, Dasanapura Hobli, Nelamangala Talk, and he had executed an Agreement to Sell in my favour on 4th November, 2004 agreeing to sell the said suit schedule property for a valuable consideration of Rs.1,86,90,000/- and as on the date of entering into the Agreement to Sell, as aforesaid, I had paid 33 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR a sum of Rs.10 Lakh by way of cash as the 1st defendant had requested me to pay the entire sum of Rs.10 Lakh by way of cash. Accordingly, I have paid the said amount by way of cash.
3. I further state that as per the said Agreement, I was required to pay the balance sale consideration of Rs.1,76,90,000/- as on the date of execution and registration of the registered Sale Deed in my favour conveying the suit schedule property.
4. I further state that the 1st defendant had received a further sum at the rate of Rs.10 Lakh each on the dates i.e., on 10.11.2004, 16.11.2004, 22.11.2004, 27.11.2004, 04.12.2004, 11.12.2004 and 18.12.2004 and another sum of Rs.13,50,000/- on 22.12.2004 and thus, in all, subsequent to the execution of the Sale Agreement, I have paid a total sum of Rs.93,50,000/- including Rs.10 Lakh paid on 04.11.2004 and rest of the amount was paid by way of Demand Draft and Cheque as stated in the Sale Deed dated 01.09.2006. Thus, in all, I have paid the entire sale consideration and I have obtained a registered sale deed in my favour. The 1st defendant had encashed all the amounts paid by way of cheques except the last two cheques dated 21.10.2006 and 01.11.2006 bearing Nos. 380520 and 380521 respectively, both drawn on Syndicate Bank, Jayanagar III Block, Bangalore -
11. The said cheques were not encashed since I had issued a letter to the bank not to honour these cheques as the dispute had commenced and the above suit was filed in the year 2005.
xxx xxx xxx
6. I further state that I am the bonafide purchaser of the suit schedule property for a sale consideration of Rs.1,86,90,000/- and as on the date of execution of the Sale Agreement, there was no impediment and there is no agreement with anybody except me. Subsequently, the 1st defendant along with his two sons, had executed a registered sale deed in my favour which is marked as Ex.P25.
[Emphasis Supplied] 34 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR
16. In essence, respondent No.6/defendant No.6 has contended that Ex.P1, the ATS is a created document and the appellant/defendant No.1 and respondent No.1/plaintiff have colluded to defraud the respondent No.6/defendant No.6. 16.1 It is also the case of respondent No.6/defendant No.6 that the Agreement to Sell executed on 24.12.2004 between the respondent No.1/plaintiff and appellant/ defendant No.1 is null and void and unenforceable in law since prior to that day, the suit schedule property had already been transferred to respondent No.6/defendant No.6.
17. In support of his contentions, respondent No.6/defendant No.6 has also produced evidence of one K. Amarnath Singh as D.W.3 who has stated that the respondent No.6/defendant No.6 has paid a total of Rs.10,00,000/- in his presence and subsequently paid Rs.93.50 lakhs as advance sale consideration and that all original documents pertaining to suit schedule property have been delivered to respondent No.6/defendant No.6 after the Earlier ATS was executed. The 35 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR relevant extract of the examination in chief of D.W.3 is set out below:
"1. I state that I know both the 1st Defendant as well as the 6th Defendant. The 1st Defendant being the owner of the suit schedule property, has executed an Agreement to Sell on 04.11.2004 agreeing to convey the same in favour of the 6th Defendant.
2. I state that under the agreement, the 6th Defendant had paid a sum of Rs.10.00 Lakh in my presence and subsequently also, the 1st Defendant has received further advance sale consideration from the 6th Defendant and I am witnesses to all the amounts paid subsequent to the agreement dated 04.11.2004 and in all, the 6th Defendant has paid a sum of Rs.93,50,000/- as advance sale consideration.
3. I further state that, pursuant to the agreement dated 04.11.2004, the 1st Defendant has delivered all the original documents in favour of the 6th defendant pertaining to the suit schedule property."
[Emphasis Supplied]
18. A detailed cross-examination was undertaken of said D.W.3 by the counsel for the respondent No.1/plaintiff wherein D.W.3 confirmed that he was a real estate agent and broker and knew that both appellant/defendant No.1 and respondent No.6/defendant No.6 are from Bethanagare village. Neither the cross-examination of DW-2 nor DW-3 brought out anything to discredit their contentions. 36
NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR
(d) The Evidence:
19. This Court has also examined the deposition of the appellant/defendant No.1 [D.W.1]. The defendant No.1 [D.W.1] has not denied executing the Agreement to Sell on 24.12.2004. He has further stated in his affidavit in evidence dated 24.09.2011 that he executed an Agreement to Sell for a total sale consideration of Rs.48,39,375/- to meet the legal necessities for his families and that defendant Nos.2 to 5 are formal parties and have no right or interest over the suit schedule property.D.W.1 further in his evidence states that in December 2004, the value of one acre of land in the vicinity was around Rs.35 to Rs.40 lakhs, and as on the date of the giving evidence, the value of one acre of land in the vicinity of the suit schedule property was worth more than about Rs.80 Lakhs. However, he had agreed to sell the property at Rs.7.25 lakhs per acre so that he could purchase an alternative property for the benefit of the family. It is contended that respondent No.1/plaintiff was to pay entire sale consideration within five months, so he could purchase an alternate property. The D.W.1 has also admitted receiving 37 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR entire amount of Rs.25,00,000/-, but states that since the respondent No.1/plaintiff failed to complete the transaction within five months and there was a default, the ATS came to an end on 23.05.2005 or on 16.06.2005 and thus, the forfeiture clause was invoked by appellant/defendant No.1 and entire amount was forfeited.
19.1 The appellant/defendant No.1 then contradicts himself by stating that in July 2005, he had offered himself to return the money received as advance and that he has no intention to cheat anybody.
20. This Court has also reviewed the cross-examination of appellant/defendant No.1 which commenced on 15.11.2011. Appellant/defendant No.1 admits to the execution of the ATS. He further admits to the fact that the ATS was executed by him and his children as his family was need of money to discharge family necessities and discharge family debts. The appellant/defendant No.1 does not dispute that sale deed executed with respondent No.6/defendant No.6 is executed by defendant No.1 as well as his two sons and a release deed is executed on 30.08.2006 by his two daughters to facilitate 38 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR the sale. He further avers that after the Release Deed (Ex.P26) is executed on 30.08.2006, the sale deed is executed thereafter on 01.09.2006.
20.1 However, in his cross-examination, appellant/ defendant No.1 initially denies executing any Agreement to Sell on 04.11.2004 in favour of respondent No.6/defendant No.6. However thereafter, the appellant/defendant No.1 admits in his evidence that the sale deed dated 01.09.2006 was executed with respondent No.6/defendant No.6 in violation of the orders passed by the Court. Subsequently, when confronted with the Earlier ATS, he admits his signatures on the earlier agreement as well. The appellant/defendant No.1 also deposes that respondent No.6/defendant No.6 was informed about the Injunction Orders passed by the Court. The relevant extract of the cross-examination of D.W.1 undertaken on 04.01.2012 by the counsel for the plaintiff/respondent No.1 is set out below:
"I am having four children viz, Sujatha, Mahesha Dayanand and Renukadevi who are the defendants 2 to 5. My elder daughter Sujatha/defendant no.3 is in America. She went to. America during the course of execution of the Agreement to Sell-in favour of the plaintiff. It is true to suggest that the Agreement to Sell was got executed by me and my children in favour of the plaintiff.39
NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR On the date of the execution of Ex.P.1, we have received the advance sale consideration amount in part of Rs.5 lakhs. Rs.7,25,000/- was decided to be payable towards the sale consideration amount for 1 acre of land. It was decided for a total sale consideration amount for 6 acres of land to an extent of Rs.48,39,375/-. It is true to suggest that five months time was stipulated for due execution of the registered sale deed from the date of Agreement to Sell. That means, on or before 31.05.2005.
xxx xxx xxx I have not executed any Agreement to Sell except executing in favour of the plaintiff as per Ex.P.1.
xxx xxx xxx I cannot say the marked value prevailing to 1 acre of land in the year 2004. I do not know the market value that is fixed by the Government as per the Notification of July 2004 of Rs.3,50,000/-. I do not know that the plaintiff could have fetched for a lesser value for the land in and around the schedule property during that period of time.
xxx xxx xxx The plaintiff never approached me prior to sending Legal Notice. The mediator Puttaswamaiah also never approached me requesting to receive the balance sale consideration amount and to conclude the contract.
xxx xxx xxx I have executed the sale deed in favour of the 6th defendant as per Ex.P.25. My sons have put their signatures along with me to Ex.P.25.I have not disclosed in my written statement about the alienation made in favour of the 6th defendant under Ex.P.25. Except executing Ex.P.25, No other documents are executed in favour of the 6th defendant. Specifically not executed any agreement in favour of the 6th defendant. I have not executed any Agreement to Sell deed 04.11.2004 in favour of the 6th defendant. I have not executed any Agreement to Sell deed 04.11.2004 in favour of the 6th defendant. It is true to suggest that prior to two days of Ex.P.25 i.e. on 30.08.2006 my daughters have got executed the release deed relinquishing their rights in the schedule property in my favour. It is true to suggest that after relinquishing their rights by my 40 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR daughters, myself and my sons have got executed the regular registered sale deed in favour of 6th defendant. I have not produced the relinquishment deed and I will produce the same. Ex.P.26 is confronted. He admits that it is the relinquishment deed which has been executed by my daughters.
xxx xxx xxx The pendency of the suit was informed to the 6th defendant as on the date of the execution of regular registered sale deed. It was also further informed about the sale agreement executed in between me and the plaintiff and so also the exchange of Legal Notices and the pendency of the case and interim order of injunction which was in force against me. It is true to suggest that in violation to the orders of this court, I have entered into the sale transaction with the 6th defendant. It is true to suggest that under Ex.P.25, I have got alienated the schedule property for a total sale consideration amount of Rs.1,86,90,000/-.
xxx xxx xxx It is not true to suggest that I have received the entire sale consideration amount as recited under Ex.P.25. It is not true to suggest that myself and defendant no.6 have colluded together and by hiking the value for the plaint schedule property, got concocted the created Ex.P.25. I do not know that the market value for 1 acre of land at Bethanagere as notified by the Government is to an extent of Rs.9 lakhs from 2005 to 2007. I do not know whether the 6th defendant knows about the paper publication. It is not true to suggest that I colluding with the 6th defendant have cheated the plaintiff in getting the sale deed executed in his favour. Witness volunteers that only D.6 has cheated the plaintiff, but, not by me. I have filed the complaint to the Police against the 6th defendant. But, so far I have not produced any documents."
[Emphasis Supplied] 20.2 In his cross-examination conducted on 07.01.2012 D.W.1 admits that all original documents qua suit schedule property were handed over to defendant No.6/respondent 41 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR No.6 and that a board as installed by him on the suit schedule property.
"....All original documents pertaining to the schedule property were delivered to the 6th defendant. It is not true to suggest that much before duly executing the sale agreement in favour of the 6th defendant and so also received the balance partial sale consideration amount. It is not true to suggest that soon after my executing the agreement of sale in favour of the 6th defendant, he has installed the Board in the said property. The photographs are confronted. But he denies the same."
20.3 However, when on 21.02.2012, during his cross- examination, the Earlier ATS dated 04.11.2004, is shown to appellant/defendant No.1 (confronted) and he has admitted to his signatures and the same was marked as Ex.D1. The relevant extract is set out below:
"The sale agreement dated 04.11.2004 is confronted. He admits his signature at all the places to the document. Hence, the same is marked as Ex.D.1 and signature to each page is marked as Ex.D.1(a)."
(e) The Existence of Two Agreements:
21. What is thus apparent from the evidence is that the two Agreements to Sell were executed by appellant/defendant No.1. The first being Ex.D1 on 04.11.2004 with respondent No.6/defendant No.6. The second being Ex.P1 on 24.12.2004 with the respondent No.1/plaintiff. Thus, within less than two 42 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR months, two different documents were executed by appellant/defendant No.1 with different purchasers for the same suit schedule property. The appellant/defendant No.1 took amounts from both these parties for the sale of the same suit schedule property, yet at different times. 21.1 Both these agreements were however for varying consideration, while one sale consideration was Rs.7.25 lakhs per Acre (Ex.P1). The sale consideration for the other one was Rs.28 lakhs per acre (Ex.D1), even though the Agreement to Sell was executed earlier in November 2004. The appellant/defendant No.1 also admitted to handing over all original documents qua the suit schedule property to respondent No.6/defendant No.6. The Earlier ATS set out that at the time of its execution, the original documents qua the suit schedule property were handed over to respondent No.6/defendant No.6. In addition, the relevant extract of the translated copy of the Earlier ATS is below:
"Deed of sale of real estate Dated the fourth day of November, two thousand and four (04.11.2004) Bengaluru-560027, Mission Road, Kasturi Complex, 2nd Floor, No. 76, Care/Op M. Arun Ponnappa, son of Venkataswamy, aged about 43 years, to you (also the buyer)-43
NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR The following is the deed of sale of the immovable property agreed to and signed by me, Shri S.R. Rajaiah (Seller), aged about 75 years, son of the late Revanna, residing at house number 574, 2nd cross, Sri Jayadeva Hostel Road, Nelamangala Town, Bangalore Rural District-562123:
Further, the property described in the schedule hereunder is 6 acres 27 guntas and 11 guntas of Kharab land situated in Survey No. 87 of Bettanagere village, Dasanapura Hobli, Bangalore North Taluk, dated 21.10.1971 in the office of the Sub-Registrar, Nelamangala Taluk, Nelamangala, as number 2217/1971-72 in Book 1, Volume 1231, Pages 127 to 128.
xxx xxx xxx I hereby agree to sell the Scheduled Property, which is subject to my title and ownership, to you at the above stated price, as I urgently require the necessary funds for the payment of the loan I have taken out today and for other purposes and household needs.
The said property is valued at Rs. 28,00,000/- (Rupees twenty-eight lakhs only) per acre, totaling 6 acres 27 guntas of land, total purchase price is Rs.1,86,90,000/-(Rupees one crore eighty-six lakhs ninety thousand) I have received from you in the presence of the following witnesses this day a sum of Rs.10,00,000/-(Rupees Ten Lakhs Only) as an advance payment towards the full amount of the said property, agreeing to give it to you at a clean price.
The outstanding amount of Rs.1,76,90,000/-(Rupees One Crore Seventy Six Lakh Ninety Thousand Only) for the said property shall be paid within a period of eleven (11) months from today and the said property shall be registered. The expenses of providing all the documents required for registration of the said property shall be borne by us, the seller. In case of any delay in registration within the above time limit due to any reason, I agree to extend the registration time. I undertake to register the proper purchase deed for the Scheduled Property in your name or in the name of the person you request at the relevant office upon payment of 44 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR the balance of the purchase price. All expenses incurred in registering the Scheduled Property, such as the purchase deed, stamp paper costs, registration fees, etc., shall be borne by you, the purchaser.
I have made this advance purchase agreement to you today regarding the Scheduled Property and have not made any purchase, donation, support, transfer, etc. to anyone else in the past. For further verification of this agreement, my sons 1st S.R. Mahesh, aged about 42 years, 2nd S.R. Dayanand, aged about 38 years, have also agreed and affixed their consent.
I have placed in your possession all the original documents in my possession relating to the said property on the day of this agreement. The said property having come to me in the above manner is not subject to any kind of dispute. In case any further advance is received within the validity of this agreement, I am bound to write and sign the word "Sharah" on the back of the said agreement. I have not mortgaged the said property to any organization, bank, society, etc. and have not made the said property subject to any court decree, attachment, etc. There are no disputes or rights of heirs regarding the Scheduled Property. If any disputes arise, I agree to resolve them myself.
I have signed a pre-agreement for the purchase of the immovable property, which I have voluntarily and willingly agreed to write, stating that I will be responsible for any losses, losses and expenses incurred as a result of my failure to do so.
Scheduled Asset Details The land measuring 6 acres 27 guntas and 0-11 guntas of the adjoining land in Survey No.87 of Bettanagere village, Dasanapura Hobli, Bangalore North Taluk is hereby deeded as-
To the east: Muniyappa's land and Jakkojirao's land.
to the west : Siddappa's land to the north: Ramakrishna Rao's land to the south: Land of Chikkabaila and others. 45 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR
The 6 acres 27 guntas of land subject to the above lease and the 0-11 guntas of the land belonging to the said land are also subject to this advance contract for the pure purchase of this immovable property."
[Emphasis Supplied]
22. The Written Statement and evidence led by the appellant/defendant No.1 in essence only refers to the Agreement to Sell with respondent No.1/plaintiff and there is no reference made to Earlier Agreement to Sell entered into with respondent No.6/defendant No.6. No explanation is also given as to why there are two Agreements for the sale of the same property with two different parties. Clearly, thus, the appellant/defendant No.1's intentions were completely malafide from the very beginning.
23. The appellant/defendant No.1 also admits to receiving money from both respondent No.1/plaintiff and respondent No.6/defendant No.6, the subsequent purchaser with respect to the sale of the suit schedule property. In addition and in defiance of the orders passed by the learned Trial Court, the appellant/defendant No.1 executed a sale deed in favour of the respondent No.6/defendant No.6 on 01.09.2006. 46
NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR
24. The entire emphasis of the arguments of the appellant/defendant No.1 before this Court was that respondent No.1/plaintiff was not ready with the balance amount and thus the ATS was cancelled and subsequently, Sale Deed was executed with respondent No.6/defendant No.6, thus Impugned Judgment and Decree could not have been passed. However, there is absolutely no explanation given by the appellant/defendant No.1 as to reason for his executing two Agreements to Sell within two months and both for differing considerations for the suit schedule property. Both agreements cite family necessity and urgent requirement of funds. This conduct of the appellant/defendant No.1 speaks volumes of his malafide intentions.
25. An additional issue was framed by the learned Trial Court as to whether the respondent No.6/defendant No.6 proved that he is the bonafide purchaser of the suit schedule property. The learned Trial Court although notices that the appellant/D.W.1 in his cross-examination states that he has not executed any Agreement to Sell in favour of respondent 47 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR No.6/defendant No.6, however, when confronted with Ex.D1, the Agreement to Sell dated 04.11.2004, D.W.1 has admitted his signature, the learned Trial Court goes on to hold that merely because in the cross-examination, the signatures on the Agreement to Sell have been admitted, does not mean that the contents of this agreement are proved and gives a finding that the Earlier ATS was a created document. The relevant extract of the Impugned Judgment in this regard is below:
"The first defendant no where in his written statement has stated that he has executed an agreement to sell on 4.11.2004 in favour of the 6th defendant. In the chief examination and also at the time of cross-examination made by the plaintiff to D.W.1 also, he did not say that he has executed an Agreement to Sell on 4.11.2004 in favour of the 6th defendant for consideration of Rs.1,86,00,000/- and he received Rs.10 lakhs on that day, etc. The 6th defendant in his written statement has taken the contention that he had entered into an Agreement to Sell with the first defendant on 4.11.2004 for consideration amount of Rs.1,86,00,000/- and out of it Rs.10 lakhs had been paid to the first defendant. If the first defendant had entered into an Agreement to Sell with the 6th defendant on 4.11.2004, nothing is prevented the first defendant to take the same contention in his written statement. It is a material fact.
xxx xxx xxx ...On the other hand in his cross-examination made by the counsel for the plaintiff DW1 has clearly stated that, he did not execute any Agreement to Sell in favour of the 6th defendant. But the counsel for the 6th defendant has confronted the alleged Agreement to Sell dated 4.11.2004 to DW1, the DW1 has 48 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR admitted his signature on Ex.D1 Agreement to Sell. Under such circumstances, merely because in the cross-examination DW1 has admitted his signature on the alleged Agreement to Sell dated 4.11.2004, it does not mean that, the contents of the said alleged Agreement to Sell are proved......"
[Emphasis Supplied]
26. The learned Trial Court found the earlier ATS was not proved. In any event, the appellant/defendant No.1 has denied this document but later admits his signature. Clearly thus that the appellant/defendant No.1 despite entering into an ATS with the respondent No.1/plaintiff for the sale of the suit schedule property, had in fact no intention to go through with the sale at all as he had already agreed to sell the property thereafter to respondent No.6/defendant No.6 and that too at more than three times the price agreed with respondent No.1/plaintiff and back dated an Agreement to Sell to overcome the ATS with respondent No.1/plaintiff.
(f) The HMT Employees Housing Building Co-Operative Society Suit:
27. The Impugned Judgment also references the plaint filed by HMT Employees Housing Building Co-operative Society [hereinafter referred to as 'HMT Society'] against respondent No.6/defendant No.6, being O.S.No.1762/2009 in the Court 49 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR of Civil Judge (Sr. Dvn.) Bangalore, captioned HMT Employees Housing Building Co-operative Society Vs. Sri. Balaji (Ex.P35), as well as the sale deed executed on 01.09.2006 (Ex.P38) to give a finding that the payments mentioned in the HMT Society plaint refers to a transaction between HMT Society and the respondent No.6/defendant No.6, and reference to the payments made by the HMT Society to respondent No.6 for purchases of land in the Bethanagere Village, and the sale deed [Ex.P38] are one and the same. It also finds that Ex.P35 discloses that payment in cash is made to respondent No.6/defendant No.6 in the year 2004. Learned Trial Court then finds that that payment is made through demand drafts and demand drafts at Ex.P35 and Ex.38 are one and the same. Thus, the learned Trial Court reaches the conclusion that appellant/defendant Nos.1 and 6 have colluded with each other against respondent No.1/plaintiff. The relevant extract of the Impugned Judgment is set out below:
"On perusal of Ex.P.35, it discloses that one HMT Employees House Building Co-operative Society Ltd. had filed the suit against the present 6th defendant for specific performance of Agreement to Sell dated
2.9.2006 and alternatively asked the relief of refund of the amount of Rs.1,86,90,000/- and the said suit 50 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR was filed for the property bearing survey No.87 measuring to an extent of 6 acres 27 guntas.
xxx xxx xxx In Ex.P.37, plaint in O.S. No. 1762/2009, it is mentioned that the particulars of payment made by the present defendant to the said HMT Employees House Building Co-operative Society Ltd. relating to the said sale transaction. If the said payment mentioned in Ex.P.35 is compared with the payment made by the defendant No.6 to the first defendant in respect of the alleged sale transaction dated 1.9.2006, it is very clear that the payment mentioned in Ex.P.35 and P.38 are one and the same. In Ex.P.37, sale deed it is mentioned that the said sale deed has been executed on 1.9.2006. But, Ex.P.38 discloses that the alleged payment in cash is made in the year 2004. It is also discloses that the payment is also made through demand drafts and the said demand drafts number has been shown in Ex.P.35 and P.38 are one and the same. It is one of the strongest circumstances to hold that the first defendant and the 6th defendant are colluding with each other have created documents."
[Emphasis Supplied] 27.1 The learned Trial Court also gives a finding that the stamp paper on which of Ex.D1 is executed is not stamp paper purchased either by defendant No.1 or defendant No.6 and relies on the judgment of the Supreme Court in H. Siddiqui (Dead) by LRs v. A. Ramalingam1 to hold that the admission of the signatures on Ex.D1 does not mean admission of contents of the document and therefore, the document, Ex.D1 to Ex.D9 and Ex.P25 are created 1 (2011) 4 SCC 240 : AIR 2011 SCW 1886 51 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR documents and directs that the respondent No.1/plaintiff is at liberty to take action against the fabrication of these documents.
(g) Violation of Interim Order:
28. So far as concerns the violation of the order dated 03.08.2005, the learned Trial Court has found that there is a clear admission of the appellant/defendant No.1 that he has executed Ex.P25, the sale deed in favour of respondent No.6/defendant No.6. He has also admitted to the execution of relinquishment deed dated 30.08.2006 (Ex.P26) by his daughters in his favour. It is not disputed by any party that the interim order dated 03.08.2005 was extended from time to time and on the day the sale deed and the relinquishment deeds were executed, the interim order was in force. Thus, the learned Trial Court has held that the appellant/ defendant No.1 has deliberately violated the orders of this Court and that the immovable property of appellant/defendant No.1 be attached for such violation.
29. The appellant/defendant No.1 has in MFA No.4414 of 2015 challenged this order stating that no show cause Notice 52 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR has been issued by the learned Trial Court prior to passing the order and no separate evidence was adduced. Thus, it is contended that the Impugned Order cannot be sustained.
30. The provisions of Order 39 Rule 2A of the CPC provide for consequence of disobedience or breach of injunction in the following manner:
"Order XXXIX Rule 2A CPC "2A. Consequence of disobedience or breach of injunction.--
(1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.
(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto."
[Emphasis Supplied] 30.1 The Supreme Court in the judgment of Food Corpn. of India v. Sukh Deo Prasad2 has explained this provision as 2(2009) 5 SCC 665S 53 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR requiring clear, unambiguous and willful disobedience of an order of temporary injunction granted under Order XXXIX Rules 1 or 2 of the CPC, and that such power cannot be exercised on mere assumptions or inferential reasoning but must be founded on cogent material on record. The relevant extract is below:
38. The power exercised by a court under Order 39 Rule 2-A of the Code is punitive in nature, akin to the power to punish for civil contempt under the Contempt of Courts Act, 1971. The person who complains of disobedience or breach has to clearly make out beyond any doubt that there was an injunction or order directing the person against whom the application is made, to do or desist from doing some specific thing or act and that there was disobedience or breach of such order. While considering an application under Order 39 Rule 2-A, the court cannot construe the order in regard to which disobedience/breach is alleged, as creating an obligation to do something which is not mentioned in the "order", on surmises, suspicions and inferences. The power under Rule 2-A should be exercised with great caution and responsibility."
[Emphasis Supplied] 30.2 In addition, in the judgment of Hero Cycles Ltd. v. Hero Ecotech Ltd.3 the Supreme Cout has held that in the proceedings under Order XXXIX Rule 2A CPC, an inquiry must be conducted in accordance with law and both sides must be afforded a reasonable opportunity to present their case. The relevant extract is below:
32026 SCC OnLine SC 270 54 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR "11. In case the applicants who filed the said application(s) seek an inquiry into the matter, then both sides ought to be granted a reasonable opportunity in the inquiry to be conducted in case the said inquiry has not yet been completed."
[Emphasis Supplied]
31. This Court is however unable to agree that appellant/defendant No.1 did not have notice of these proceedings or was unable to present his case. The record reflects that the learned Trial Court on 03.08.2005 granted an ex parte ad interim injunction restraining the defendants from alienating, encumbering, or altering the suit schedule property. The interim order was extended from time to time including on 19.11.2005, 17.06.2006, 26.08.2006, 01.12.2006 and thereafter the appellant/defendant No.1 and respondent Nos.2 to 5 were present/represented before the Court on all days. Thereafter on 12.09.2006 after impleading respondent No.6/defendant No.6, the learned Trial Court extended the Interim Order directing respondent No.6/defendant No.6 from further encumbrance and formation of layouts. The relevant orders are extracted below:
"ORDER DATED 03.08.2005 Pltf - A.N D1 to 5 55 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR Heard. Perused the records. The plaintiff has filed the suit for specific performance of contract. If the defendants are allowed to alienate the suit schedule property or creating encumbrance over the suit schedule property, the very purpose of filing the suit would become infructuous and it will lead to multiplicity of proceedings. Hence, the defendants are restrained from alienating the suit schedule properties or creating or encumbering over the suit schedule properties till next date of hearing. The plaintiff is directed to comply with the provisions of Order 39 Rule 3 CPC.
Advocate for the plaintiff files a memo to keep the original documents in safe custody. In view of the memo Office is directed to keep the original documents in safe custody.
Issue suit summons exparte order on IA No.1 to the defendants returnable by 19-11-2005.
Sd/-
ORDER DATED 19/11/2005:
Pltf - A.N. D1-5 SS to D2 Sd in person SS to D4 SS to D1, 3 - 5 I.A.2 filed. I.O extended till next date. Defendants 1, 2 called. Defendants 1 and 2 present. Prays time to engage counsel and file written statement. Issue suit summons to defendant Nos.3 to 5 by RPAD if PF paid. Call on 17.06.2006.
Sd/-
ORDER DATED 17/06/2006:
Plft - A.N. D1 & 2 in person D3 to 5 SS to D3 to 5 SS to D3 to 5 by RPAD Served in person Plaintiffs filed application for extension of I.O. Heard. I.O extended till next date of hearing. Defendants 3 to 5 appeared in person and prays time to engage counsel.
Sd/-56
NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR ORDER DATED 26/08/2006 Pltf - A.N. D1 to 5 in person D1 to 5 to engage Adv.
Application filed.
Interim order is extended till the next date.
TSR files vakalat for defendant No.1 and WS of defendant No.1. Defendant Nos.3 to 5 present in person.
Call on 17.10.2006.
Sd/-
ORDER DATED 12/09/2006 Advocate for plaintiff filed an application U/S 151 of CPC along with an affidavit and prays to advance the case from 17.10.2006 to 08.09.2006.
Memo with 2 xerox documents filed.
This case is advanced as per application with notice to other side.
Plaintiff filed IA 2 to implead the proposed defendant and IA 3 and 4 under Oder 39 R.1 and 2 against the proposed defendant. PF paid. Issue notice of IA 2 and 3 and 4 to the proposed defendant.
Call on 17.10.2006.
Sd/-
Later, plaintiff filed IA 5 under Order 39 R.1 and 2 of CPC. Objection to IA 5. Call on 17.10.2006.
Sd/-
Later, advocate for plaintiff pressed for passing interim order against proposed defendant. The plaintiff apprehended that the proposed defendant may further alienate the suit property or create encumbrance. Under the circumstances, notice of IA 3 and 4 at the first instance is dispensed with. In order to avoid multiplicity of proceedings and to preserve the property in trust the proposed defendant is 57 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR restrained from alienating or creating encumbrance over the suit property. The proposed defendant is also restrained from changing the nature of the suit schedule land or to form a layout. This order will be in force till the next date of hearing.
Plaintiffs shall comply with the provisions of O.39 R.3 of CPC.
Issue ex-parte order on IA 3 and notice of IA 2 to the proposed defendant.
Call on 17.10.2006.
Sd/-
ORDER DATED 17/10/2006 Pltf - A.N. D1 - T.S.R. D3 to 5 - in person IA2 Pro.D6 Objections to IA1, Notice to pro.D6 not given.
Application is filed.
Interim order is extended till the next date. MAP files vakalath for proposed defendant 6. Await notice of proposed defendant 7 and objections to I.A.2.
Call on 01.12.2006.
Sd/-
ORDER DATED 01/12/2006 Pltf - A.N. D1 - TSR D3-5 in person.
IA 2 Pro.D6 - MAP Objections to IA 2 Objections to IA 1.
Amendment carried out as per order of the Hon'ble Court dated 1.12.2006.
Application filed.
Interim order is extended till the next date. Objection to I.A.2 not filed.
58
NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR Suit is for specific performance. The proposed defendant is a subsequent purchaser of the property in question. Hence, the proposed defendant No.6 is necessary and proper party to the suit. Hence, I.A.2 is allowed. Amendment is carried out.
To furnish amended plaint, W.S. of defendant 6 - call on 22.01.2007.
Sd/-
[Emphasis Supplied]
32. It is thus undisputed that the order of Injunction was in the knowledge of the Appellant/defendant No.1 and the respondent Nos.2 to 5 and yet they proceeded to transfer rights in the suit schedule property in favour of defendant No.6/respondent No.6. The Appellant/defendant No.1 and respondent Nos.2 and 5 executed the sale deed on 01.09.2006, while the respondent Nos.3 and 4 executed a Release deed on 30.08.2006.
33. Thereafter, I.A.No.5 was filed on 12.09.2006 by the appellant/defendant No.1 seeking directions under Order XXXIX Rule 2A CPC stating that the suit schedule property had been sold despite the pendency of the interim order. The learned Trial Court on 12.09.2006 issued notice on the application and granted the appellant/defendant No.1 time to file his objections. Subsequently on 17.10.2006, the learned 59 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR counsel for appellant/defendant No.1 and defendant Nos.3 to 5 were represented/present before the learned Trial Court. Clearly thus as is reflected from the order sheet of the learned Trial Court, they had notice of the application alleging defiance of the orders of the Court and opportunities were given for an explanation, appellant/defendant No.1 and defendant Nos.2 to 5 chose not to file any reply. 33.1 In fact, as can be seen above, the appellant/defendant No.1 and the respondent Nos.3 to 5 were present before the Court on 17.10.2006, despite which neither deemed it appropriate to file any objections or explanation. The record also reflects that thereafter, the appellant/defendant No.1 filed several applications and well as objections to the applications filed by the respondent No. 1/Plaintiff, however no objections were filed by the appellant/defendant No.1 to 5 to the application under Order 39 Rule 2A of the CPC, nor was any explanation provided through the 10 years that the matter was pending before the Trial Court. 33.2. Thus, despite an opportunity being given by the Learned Trial Court to the Appellant/defendant No.1 and 60 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR Respondent Nos.2 to 5, they chose not to give any explanation as to the defiance of an injunction order.
34. In addition and in any event, in the depositions by the appellant DW-1, has affirmed and confirmed the execution of the Sale deed dated 01.09.2006 despite knowledge of the order of Injunction passed by the Learned Trial Court, thus no further enquiry was requisite. The relevant extract of the cross-examination of opponent/DW.1 is below:
"Cross-examination dated 07.01.2012 (DW-1) I have stated in my examination in chief filed by way of affidavit swearing on oath as, I have got executed the Agreement to Sell as I was in need of amount to meet my family legal necessities and also to discharge the family debts.
I have executed the sale deed in favour of the 6th defendant as per Ex.P.25. My sons have put their signatures along with me to Ex.P.25. I have not disclosed in my written statement about 'the alienation made in favour of the 6thdefendant under Ex.P.25. Except executing Ex.P.25 no other documents are executed in favour of the 6th defendant. Specifically not executed any agreement in favour of the 6 defendant. I have not executed any Agreement to Sell deed 04.11.2004 in favour of the 6thdefendant. It is true to suggest that prior to two days of Ex.P.25 i.e. on 30.08.2006 my daughters have got executed the release deed relinquishing their rights in the schedule property in my favour. It is true to suggest that after relinquishing their rights by my daughters, myself and my sons have got executed the regular registered sale deed in favour of 6thdefendant. I have not produced the relinquishment deed and I will produce the same. Ex.P.26 is confronted. He admits that it is the relinquishment deed which has been executed by my daughters. It is true to suggest that it is recited in Ex.P.26 61 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR to enjoy the joint family properties to our whims and fancies. There was no mediator in between myself and the 6th defendant to the sale transaction. It is not true to suggest that Puttasampaiah was the mediator in our sale transaction. The pendency of the suit was informed to the 6th defendant as on the date of the execution of regular registered sale deed. It was also further informed about the sale agreement executed in between me and the plaintiff and so also the exchange of legal notices and the pendency of the case and interim order of injunction which was in force against me. It is true to suggest that in violation to the orders of this court, I have into the sale transaction with the 6thdefendant. It is true to suggest that under Ex.P.25. I have got alienated the schedule property for a total sale consideration amount of Rs 1,86,90,000/-.
[Emphasis Supplied] 34.1 Concededly thus the appellant/defendant No.1 has in his cross-examination, admitted that he was aware of the subsisting injunction order and despite such knowledge executed the sale deed dated 01.09.2006. Accordingly, knowledge of the injunction order stood conclusively established.
35. Thereafter, the learned Trial Court in the Impugned Judgment has found that there is a deliberate violation of the order of injunction of this Court and has directed the attachment of the immovable property of defendant No.1 and if the defendant No.1 does not possess any other property other than the suit schedule property, directions for detention in a civil prison for one month have been passed.62
NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR The relevant extract of the Impugned Judgment in this regard is as below:
"IMPUGNED JUDGEMENT On perusal of the order sheet it discloses that this suit was filed on 3.8.2005 and ex parte temporary injunction order had been granted against the defendants from alienating the suit schedule properties till next date and it was extended time to time. It is an admitted fact that on 1.9.2006 the 1st defendant has sold the suit schedule property in favour of the 6th defendant as per Ex.P.25, on that day injunction order was in force. On 19.11.2005 the defendant No.1 and 2 were present and prayed time to engage counsel and to file written statement and on that day also interim order was extended and on 17.6.2006 defendants No.3 to 5 appeared in person and prayed time to engage counsel, on that day also injunction order was extended. DW1 had admitted that, when the injunction order was in force he sold the suit schedule property to the defendant. Therefore it is very clear that, willfully the 1st defendant has violated the order of this court, there is breach of violation of injunction order.
The plaintiff has filed an application under Order 39 Rule 2A of CPC against the defendants for violating the court order. DW1 has also admitted that, in violation of the court order, he sold the suit schedule property. Therefore, it is just and necessary to pass an order on the breach of the injunction order. In the result, I proceed to pass the following:
ORDER It is directed to attach the immovable property of the 1st defendant.
If the 1st defendant does not hold any other immovable property (excluding the suit schedule property), he shall be sent to civil prison for a period of one month.
The plaintiff is directed to furnish the particulars of the immovable property of the 1st defendant."
[Emphasis Supplied] 63 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR
36. The act of executing the sale deed in the face of a subsisting injunction order, despite admitted knowledge thereof, constitutes willful and deliberate disobedience.
37. Insofar as the contention regarding absence of a separate inquiry is concerned, it is to be noted that such inquiry is warranted where the facts relating to disobedience are in dispute. In the present case, however and as set out above, these facts are admitted. Therefore, the requirement of inquiry stands satisfied on the basis of the admitted material on record, and no further evidence was warranted and the appeal filed by appellant/defendant No.1 being MFA No.4414/2015 is without merit.
(h) Readiness and Willingness:
38. It is settled law that specific performance of a contract cannot be granted unless the person (plaintiff) proves readiness and willingness to perform the contract as per its construction. It is apposite to set out Section 16(1)(c) of the Specific Relief Act, 1963 (hereinafter referred to as 'the S.R. Act') below, in this behalf:
"16. Personal bars to relief. -Specific performance of a contract cannot be enforced in favour of a person-
64 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR (a) xxxx (b) xxxx
(c) who fails to prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
2)Explanation. For the purposes of clause (c),
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court;
(ii) the plaintiff must prove performance of, or readiness and willingness to perform, the contract according to its true construction."
[Emphasis Supplied] 38.1 It is no longer res-integra that for a grant of specific performance of a contract, the respondent No.1/plaintiff must plead and prove both his readiness and willingness to perform the contract. The expression "readiness" relates to the financial capacity of the plaintiff to perform the contract, whereas "willingness" is to be inferred from the conduct of the plaintiff. The Supreme Court in Sangita Sinha Vs. Bhawana Bhardwaj And Others4 has held that "readiness" and "willingness" are distinct requirements, where readiness refers to the financial capacity of the plaintiff, and willingness 4 2025 SCC OnLine SC 723 65 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR is to be gathered from the conduct of the plaintiff. It has further been held that such readiness and willingness must be continuous from the date of the agreement till the date of decree. Failure to establish the same would disentitle the plaintiff from the relief of specific performance. The relevant extract of the Sangita Sinha's case is set out below:
"17. it is trite law that 'readiness' and 'willingness' are not one but two separate elements. 'Readiness' means the capacity of the Respondent No.1 - buyer to perform the contract, which would include the financial position to pay the sale consideration. 'Willingness' refers to the intention of the Respondent No. 1 - buyer as a purchaser to perform his part of the contract, which is inferred by scrutinising the conduct of the Respondent No.1's - buyer / purchaser, including attending circumstances.
18. Continuous readiness and willingness on the part of the Respondent No. 1-buyer/purchaser from the date of execution of Agreement to Sell till the date of the decree, is a condition precedent for grant of relief of specific performance. This Court in various judicial pronouncements has held that it is not enough to show the readiness and willingness up to the date of the plaint as the conduct must be such as to disclose readiness and willingness at all times from the date of the contract and throughout the pendency of the suit up to the decree. A few of the said judgments are reproduced hereinbelow: --
A. In Gomathinayagam Pillai v. Palaniswami Nadar, (1967) 1 SCR 227, it has been held as under:--
"6. But the respondent has claimed a decree for specific performance and it is for him to establish that he was, since the date of the contract, continuously ready and willing to perform his part of the contract. If he fails to do so, his claim for specific performance must fail. As observed by the 66 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR Judicial Committee of the Privy Council in Ardeshir Mama v. Flora Sassoon, 1928 SCC OnLine PC 43:
"In a suit for specific performance, on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit."
The respondent must in a suit for specific performance of an agreement plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit...."
[Emphasis supplied] B. In Vijay Kumar v. Om Parkash, 2018 SCC OnLine SC 1913, it has been held as under:--
"6. In order to obtain a decree for specific performance, the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown throughout and has to be established by the plaintiff...."
[Emphasis supplied] C. In J.P. Builders v. A. Ramadas Rao, (2011) 1 SCC 429, it has been held as under:--
"27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform 67 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties."
[Emphasis supplied] D. In Umabai v. Nilkanth Dhondiba Chavan (Dead) By LRs., (2005) 6 SCC 243, it has been held as under:--
"30. It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff-
respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16 (c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in- chief would not suffice. The conduct of the plaintiff- respondents must be judged having regard to the entirety of the pleadings as also the evidence brought on records."
[Emphasis Supplied] E. In Mehboob-Ur-Rehman (Dead) through Legal Representatives v. Ahsanul Ghani (supra), it has been held as under:--
"16. Such a requirement, of necessary averment in the plaint, that he has already performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him being on the plaintiff, mere want of objection by the defendant in the written statement is hardly of any effect or consequence. The essential question to be addressed to by the Court in such a matter has always been as to whether, by taking the pleading and the evidence on record as a whole, the plaintiff has established that he has 68 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR performed his part of the contract or has always been ready and willing to do so..."
[Emphasis Supplied] F. In C.S. Venkatesh v. A.S.C. Murthy (Dead) by Legal Representatives (supra), it has been held as under:--
"16. The words "ready and willing" imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract.
17. In N.P. Thirugnanam v. R. Jagan Mohan Rao [N.P. Thirugnanam v. R. Jagan Mohan Rao, (1995)
5 SCC 115], it was held that continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant of the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the 69 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR contract, the court must take into consideration the conduct of the plaintiff prior to and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must necessarily be proved to be available.
18. In Pushparani S. Sundaram v. Pauline Manomani James [Pushparani S. Sundaram v. Pauline Manomani James, (2002) 9 SCC 582], this Court has held that inference of readiness and willingness could be drawn from the conduct of the plaintiff and the totality of circumstances in a particular case. It was held thus: (SCC p. 584, para 5) "5. ... So far these being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining the first of the two circumstances, how could mere filing of this suit, after exemption was granted be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved."
[Emphasis Supplied] 38.2 The learned Trial Court has in the Impugned Judgment further found that the readiness and willingness of the respondent No.1/plaintiff stood proved through the copies of the sale deed executed by the father of the 70 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR appellant/defendant No.1 and thus there were sufficient amounts to make payment. In addition the learned Trial Court has also found that without cancelling the Agreement to Sell executed in favour of respondent No.1/plaintiff, the sale deed dated 01.09.2006 (Ex.P25) has been executed and respondent No.6/defendant No.6 cannot say that he is the bonafide purchaser since there is an Agreement to Sell executed priorly. Thus, the respondent No.1/plaintiff is held entitled to a decree of specific performance.
39. As stated above, the emphasis of the arguments of the learned counsel for the appellant/defendant No.1 is on the fact that readiness of the respondent No.1/plaintiff was not there. It is contended that the respondent No.1/plaintiff did not have the funds at that time and it is settled law that till the sale deed executed, the funds must be available. The respondent No.1/plaintiff on other hand has contended that the plaintiffs had adequate funds and in support of these contentions, the plaintiffs have relied on the sale deeds produced.
71
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40. In the present case, the Agreement to Sell dated 24.12.2004 did provide for five months period for completion of contract which was later extended by the appellant/defendant No.1. More than 50% of the entire sale consideration was paid as an advance and paid in cash. As evidence of the ability to conclude the contract, respondent No.1/plaintiff placed on record ten sale deeds (Exs.P39 to P49) executed sale of his other properties to purchase the suit schedule property. Although, the appellant/defendant No.1 has contended that values in the sale deeds would not provide for the total sale consideration, however, given that entire transaction was undertaken in cash, clearly, these sale deeds would also not disclose the actual amount paid as consideration. In addition, each of the sale deeds are in the vicinity of the suit schedule property and the appellant defendant No.1 has himself admitted that the price per acre for the area was at least Rs.35 Lakhs to 40 Lakhs.
41. The respondent No.1/plaintiff [PW-1] has in his statement referred to the fact that on 16.05.2005 he asked the appellant/defendant No.1 and the defendants No.1 to 72 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR 5/respondent Nos.1 to 5 to perform their part of the contract and execute the sale deed by receiving the balance sale consideration, but the appellant/defendant No.1 avoided the same and insisted that the presence of respondent Nos.1 to 5 was not required to execute sale deed, even though they had executed the ATS. The relevant extract of the affidavit in evidence dated 06.04.2009 of respondent No.1/plaintiff in this behalf is set out below:
"...On 16.04.2005, I demanded the defendants 1 to 5 to perform their part of the contract to come and execute the sale deed by receiving the balance sale consideration amount along with one D.V. Puttashamaiah, G.N. Jaiprakash and Y.B. Shamanna. The 1st defendant avoided to meet and was not available for further talks. Under one pretext or the other, the 1st defendant went on avoiding and failed to perform his part of the contract. Having no other alternative, I gave a Notice dated 20.05.2005 within the stipulated period of time calling upon the Defendants 1 to 5 to come and perform their part of the contract. The Defendants 1 to 5 received the Legal Notice and Defendant No.1 alone gave a reply stating that the suit property is the self acquired property and he alone would come and execute the sale deed. I insisted the 1st defendant along with other defendants 2 to 5 to come and execute the sale deed...."
[Emphasis Supplied] \ 41.1. The affidavit further sets out that the amounts were available with the respondent No.1/plaintiff in his bank 73 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR account. Ex.P34 has been produced in this behalf by the respondent No.1/plaintiff. An examination of Ex.P34 however reflects that the page that has been produced only begins from 04.03.2006. However, it does show a bank balance of Rs.23,92,302/-. Thus, the passbook proves the fact that the respondent No.1/plaintiff did have a substantial bank balance thereby, reflecting the fact that he did possess funds.
42. It is also apposite to review the cross-examination of the other witnesses placed on record by the respondent No.1/plaintiff, which included himself as PW1 and three other witnesses as PW2 to PW4. The PW1 was subjected to extensive examination. During his examination, he deposed that the appellant/defendant No.1, in addition to the negotiated land (suit schedule property), the appellant/defendant No.1 also wanted the respondent No.1/plaintiff to buy some kharab (uncultivable) adjacent land. This is also reflected in the Legal Notice dated 14.06.2005, sent by the appellant/defendant No.1 to the respondent No.1/plaintiff. The evidence also reflects that the appellant/defendant No.1 asked for additional money since 74 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR his daughter was going to America. The respondent No.1/plaintiff has further deposed that even on 20.03.2005, the appellant/defendant No.1 has stated that he was ready to execute the sale deed but not with his children as executants. Even thereafter, in April and May, the children of the appellant/defendant No.1 being defendant Nos.2, 3, 4 and 5 did not come forward to execute the sale deed. The relevant extract of the cross-examination of PW-1 (respondent No.1/plaintiff) dated 09.08.2011 is set out below:
"On the date of negotiations D.V. Puttaswamaiah, Shivakumar, Y.B. Shamanna, Satish Babu were all present. The said negotiations took place on 23.12.2004. There are 11 guntas kharab in the plaint schedule extent of the property. There are no talks about the Kharab land. It is true to suggest that the total extent of the property in survey No. 87 is measuring 6 acres 38 guntas including 11 guntas of Kharab. It is true to suggest it was negotiated the sale consideration of Rs.7,25,000/- for per acre of land. The time was stipulated to conclude the contract dated 31.5.2005. It was also negotiated and agreed to pay the balance sale consideration amount on or before 31.5.2005. The first defendant has asked for money in the month of February, 2005. Witness Volunteers that the first defendant has asked for money as has daughter was going to America.
I do not know whether the first defendant is owning no other properties except the plaint schedule property. The defendant has told that he will get execute the regular sale deed on his behalf. But, not by his 75 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR children within 31.5.2005. On 20.3.2005, it was told by the first defendant that the alone is ready to execute the sale deed, but, not by his children. I have contacted the 3rd defendant Mahesh at his house. He told that he as having work at Bidar and he is going and after his return let us have talks. This approach and talks with the 3rd defendant happened in the month of April, 2005. After April month, I called upon the defendant No.3 Mahesh to come for talks. But, he never turned up. I have not contacted D.2, D.4 and D.5. I never asked the defendants 2, 4 and 5 and they never came forward to execute the regular sale deed. At the time of issuing a notices as on 20.5.2005, I have not disclosed nor given instructions about the approach of the first defendant the sale deed, but, not by his children. So also, the same was not informed to my Advocate at the time when the plaint was prepared. I have not informed my Advocate about the event of my approaching the 3rd defendant Mahesh and in turn it was told by him that after his returning from Bidar, he will talk to me and he did not approached one later on in spite of my efforts to meet him.
xxx xxx xxx ... It is true to suggest that under ExP45, I was asked to pay a sum of Rs.2 lakhs towards 11 guntas of kharab land. It is not true to suggest that the payment of Rs.2 lakhs for the kharab land was very much negotiated on the day of the negotiations of the agreement....
xxx xxx xxx I am running a small scale furniture industry at Peenya II stage, Bangalore and so also having agriculture. There are about 8 to 10 employees under me. Since from four years, I am running my industry. The Turnover of the industry is Rs.10 lakhs per annum. I am submitting my returns and paying the Income Tax. I am paying Rs. 10,000/- of income Tax p.a. The industry is in my name. I have no impediment to produce all the details of my returns and income 5 Ex- P4 -Reply dated 14.06.2005 sent to legal notice sent on behalf of appellant/defendant No.1 76 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR tax paid by me. I am prepared to produce all the details of my return and income tax by next date of hearing.
xxx xxx s xxx I do not know that the market value per acre was Rs.8 lakhs in the year 2004. It is not true to suggest that the value to the schedule property was at the rate of Rs.35 to 40 lakhs per acre as on the date of filing of the suit. It is not true to suggest that as on the date, the market value for per acre of land is Rs.1.5 crores per acre. It is true to suggest that I am leading a balanced life out of my earnings from the income derived from my industry. It is not true to suggest that the entire family of the defendants are depending upon the Plaint Schedule Property. It is not true to suggest that I have failed to arrange the balance sale consideration amount and as such transaction was not completed. It is not true to suggest that if the balance sale consideration was adjusted and paid, the defendant would not have refused to execute the regular sale deed as per the terms of the contract. It is not true to suggest that the total sale consideration amount of s.48,39,375/- will not even fetch an ½ acre of land in that vicinity. I cannot say the prevailing market value for 1 acre of land within the vicinity of Bethanagere village. I have not made enquiry to know the prevailing market value of land in Bethanagere village. It is not true to suggest that I have filed this suit only with an intention to harass the defendants.
I approached the defendants by telling that I was ready and willing to perform my part of contract by paying the balance amount and to execute the regular registered Sale Deed. At the time when I approached the defendants, Puttashamaiah, Shamanna, Shivakumar and Satishbabu were present. On 16.5.2005, I approached the defendants with cash of balance sale consideration amount. On that day, I met the first defendant. But, he avoided telling that his children have to come. It is not true to suggest that I never approached the defendant by accompanying with anyone."77
NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR [Emphasis Supplied]
43. In addition to being cross-examined by the appellant/defendant No.1, the respondent No.1/plaintiff was also cross-examined by the respondent No.6/defendant No.6. The cross-examination done by respondent No.6/defendant No.6 refers to the fact that the respondent No.1/plaintiff in addition to being an agriculturist also has a business of a furniture shop. The appellant/defendant No.1 discussed the sale of the lands at Ex.P39 to Ex.P43 prior to the filing of the suit and also discusses that the respondent No.1/plaintiff was the owner of more than 10 acres of land. The relevant extract is set out below:
"I am agriculturist and so also running furniture shop. I have purchased the document to show the operation of agriculture in my lands. I am having 10 acres of land, but the RTCs are produced for more than 5 acres of land. I am raising the crops of ragi and so also the vegetables separately in separate areas of land. Per year, I am having the approximate income of Rs.40 to 45,000/-. We are having 8 members in our family. I am having nearly Rs.50,000/- of income per month from the furniture shop.
I am having the bank accounts in Canara Bank and so also in the State Bank of India. I have not produced any of the documents to show my total income as on the date of the execution of the sale agreement with the first defendant. I have also not produced any 78 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR document to show the income which was possessed by me even as on the date of the filing of the suit......"
[Emphasis Supplied]
44. The respondent No.1/plaintiff also produced deposed PW-2 to PW-4, who are in addition to being the witnesses to the Agreement to Sell (ATS), are also the persons stated to have accompanied the respondent No.1/plaintiff to make the payment of balance sale consideration. PW2 has deposed that he was present on the date of the execution of the Agreement to Sell and that the respondent No.1/ plaintiff was ready to pay the balance amount and that he had accompanied the respondent No.1/plaintiff to the house of the appellant/defendant No.1 but for one pretext or another, he would not conclude the transaction. It also sets out that the appellant/defendant No.1 was demanding more money for the land and thus was not executing the sale deed. The relevant extract of the affidavit in evidence dated 09.06.2011 of PW2 is set out below:
"3. I was present along with my father on the date of the Agreement to Sell i.e. on 24.12.2004. The defendant No.1 agreed to sell the suit schedule property at the rate of Rs.7,25,000/- per acre and received a sum of Rs.5,00,000/- /- as token advance on the date of entering into Agreement to Sell. Subsequently the plaintiff has paid a sum of Rs.20,00,000/- on 24.02.2005 as further advance towards 79 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR the consideration amount. The payment of further advance was endorsed in the Agreement to Sell by the defendant No.1 and 5. It was agreed by the parties to complete the sale transaction within a period of five months or on or before 31.05.2005. The plaintiff was ready and willing to pay the balance sale consideration amount and demanded defendant No.1 to come and execute the registered sale deed. I had accompanied the plaintiff 3 to 4 times to the house of the defendant No.1 when the demand was made by the plaintiff. The defendant No.1 under the pretext that his son, 2nd defendant is in Bidar and after his coming we would talk about the said transaction. Under the one pretext or the other he went on postponing the matter of the registration of the property and began to say that one acre of land in worth of 8 Lakhs and demanded more amount than the agreed amount from the plaintiff.
4. Even though the plaintiff shown the gesture of paying little more money than the agreed amount the defendant No.1 along with his children defendants No.2 to 5 failed to come and execute the sale deed."
[Emphasis Supplied] 44.1 PW.3 in his affidavit in evidence dated 09.06.2011, also deposed in respect of the readiness of the respondent No.1/plaintiff to sell the property and nothing adverse was elucidated in his cross-examination. The relevant extract is set out below:
"3. In spite of plaintiff making demanded to come and execute the sale deed as he is ready to pay the balance sale consideration amount the defendant No.1 by expecting more money has not come forward. And subsequently, has sold the property to defendant No.6 after filing of the above suit for specific performance by the plaintiff."
Cross examination:
80
NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR I know plaintiff very well. He is running a furniture industry. He is not owning any lands. Since from 10 to 12 years I know the plaintiff. It is not true to suggest that there was no transaction of sale in between the plaintiff and first defendant. It is not true to suggest that in order to grab money from the 6th defendant false suit is filed and I am deposing falsely hear to plaintiff. It is not true to suggest that the plaintiff and 1st defendant and made use of the old stamp paper and made concocted."
[Emphasis Supplied] 44.2 PW.4 deposed that he had accompanied the respondent No.1/plaintiff on three to four occasions for the execution of the sale deed and payment of the balance amounts.
However, the appellant/defendant No.1 kept postponing the matter for one reason or the other. In addition, PW.4 has also stipulated to the fact that the agreement took place and he was part of the talk about the sale. The relevant extract of the evidence by affidavit of PW.4 is set out below:
"The plaintiff was ready and willing to pay the balance sale consideration amount and demanded the defendant No.1 to come and execute the registered sale deed. I have accompanied the plaintiff 3 to 4 times to the house of the defendant No.1 when the demand was made by the plaintiff. The defendant No.1 under the pretext that his son, 2nd defendant is in Bidar and after his coming we would talk about the sale transaction. Under the one pretext or the other he went on postponing the matter of the registration of the property and began to say that one acre of land is worth of 8 Lakhs and demanded more amount than the agreed amount from the plaintiff."
xxx xxx xxx 81 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR Cross examination:
It is not correct to suggest that Puttaswamaiah has attested the agreement on 26.12.2004. I know all sale talks, which took place prior to drafting the contents of the agreements."
[Emphasis Supplied]
45. As can be seen from the depositions above, respondent No.1/plaintiff himself as well as P.Ws.2 to 4 all of whom have stated that they accompanied the respondent No.1/plaintiff to the house of appellant/defendant No.1. However, despite the same, the appellant/defendant No.1 did not execute the sale deed and made only excuses to delay. The respondent No.1/plaintiff has also contended that he wanted the sons and daughters of the appellant/defendant No.1 to execute the sale deed, however, appellant/defendant No.1 continuously refused his request. However, when it came to the time of executing the agreement with respondent No.6/defendant No.6, not only both the sons of appellant/defendant No.1 signed the document, but a release deed was executed by the two daughters one day prior to this sale deed to effectuate the agreement. 45.1 In addition, it is also an admitted fact that the appellant/defendant No.1 was demanding additional funds 82 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR from the respondent No.1/plaintiff including for the kharab land. The reply to the legal notice dated 14.06.2005 sent by the appellant/defendant No.1 clearly asks for additional amounts which were not reflected in the ATS. While the sale deed executed on 01.09.2006 was at almost three times in value of the sale consideration that the Agreement to Sell dated 24.12.2004 brought forth. Clearly thus, the appellant/defendant No.1 after taking the advance sale consideration from the respondent No.1/plaintiff had no intention whatsoever to execute the sale deed, since he had previously entered into an agreement (the Earlier ATS) for a much higher amount with respondent No.6/defendant No.6 and handed over possession of the suit property to respondent No.6/defendant No.6. The documents and evidence produced by the respondent No.1/plaintiff on the other hand reflect that he was both 'willing' to purchase and had also taken steps to be 'ready' for the purchase of the suit schedule property.
(i) The HMT Plaint:
46. There is another aspect to the matter as well. The respondent No.6/defendant No.6 has produced Exhibit-P35, 83 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR a plaint in a civil suit being O.S.No.1762/2009 in the Court of learned Civil Judge (Sr.Dn.), Bangalore Rural District, Nelamangala filed by HMT Society as plaintiff, against him. The plaint sets out that the respondent No.6/defendant No.6 is the owner of the suit schedule property, being Survey No.87 measuring to an extent of 6 acres, 27 guntas and along with 11 guntas of kharab land situated at Bethanagere Village, Dasanapura Hobli, Nelamangala Taluk, Bangalore North Taluk. The plaint further sets out that HMT Society had entered into a MOU with respondent No.6/defendant No.6 on 11.07.2006 (hereinafter 'HMT MOU') and in furtherance of the MOU, the respondent No.6/defendant No.6 has been paid Rs.2,31,57,100/-. It also sets out that the HMT MOU required the land to be transferred to the name of HMT Society. The plaint in addition references as Agreement of Sale dated 02.09.2006 in pursuance thereof, where the HMT Society has agreed to sell the suit schedule property to the respondent No.6/defendant No.6 for a consideration of Rs.1,86,90,000/- The plaint also sets out that in pursuance of the HMT MOU, certain amounts have been paid in cheque and cash directly to the erstwhile landowners (appellant/defendant No.1) in 84 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR terms of the details set out therein. The relevant extract of the plaint (Ex.P-35) is below:
"1.The defendant is the absolute owner in possession of all that piece and parcel of agricultural dry land bearing Sy. No.87 measuring to an extent of 6 Acre 27 Guntas along with 11 guntas of Kharab situated at Bethanagere Village, Dasanapura Hobli, Bangalore North Taluk, more fully described in the Schedule hereto and hereinafter referred to as the "Schedule Property". The plaintiff and the defendant have entered into a memorandum of Understanding dated July 11th, 2006. The plaintiff has produced and in furtherance of the Understanding dated July 11th, 2006, the plaintiff has paid to the defendant totally a sum of Rs.2,31,57,100/- (Rupees two crore thirty one lakhs fifty seven thousand one hundred only) either by way of cheques or by way of Demand Drafts.
As per the understanding, the plaintiff has agreed to procure approximately 60 acres land at Bethanagere Village, Dasanapur Hobli, Bangalore North Taluk and the defendant has to proceed to register the lands in parts for which the title is cleared by the Legal advisor of the plaintiff. After the registration of the land, the defendant is required to enter into an Agreement to Sell with the plaintiff in respect of the lands registered in favour of the defendant. In terms of understanding, upon registration of the Sale Deed in respect of the Schedule Property in favour of the defendant, the defendant has entered into a Sale Agreement dated September 2nd, 2006 ("Sale Agreement") with the plaintiff agreeing to sell the Schedule property to the defendant for a total consideration of Rs.1,86,90,000/-. The agreement dated September 2nd2006 is produced as Document No.2. In fact, in addition of the amount paid as above, the plaintiff has paid certain amount towards registration of the sale deeds, towards stamp duty and registration fee. It is pertinent to point out that out of the payment made under and pursuant to understanding, the defendant has paid certain amount to the erstwhile owners of the Schedule Property. The same is adjusted towards the consideration Agreed under the Sale Agreement. Accordingly, in the agreement, the Cheques/cash issued by the defendant in favour of the erstwhile land owners of the Schedule Property has been adjusted by showing the cheques/cash issued by the defendant, as under:
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a) A sum of Rs.10,00,000/- (Rupees Ten Lakhs only) paid on November 4, 2004 by cash to erstwhile owners.
b) A sum of Rs.10,00,000/- (Rupees Ten Lakhs only) paid on November 10, 2004 by cash to erstwhile owners.w
c) A sum of Rs.10,00,000/- (Rupees Ten Lakhs only) paid on November 16, 2004 by cash to erstwhile owners.
d) A sum of Rs.10,00,000/- (Rupees Ten Lakhs only) paid on November 22, 2004 by cash to erstwhile owners.
e) A sum of Rs.10,00,000/- (Rupees Ten Lakhs only) paid on November 27, 2004 by cash to erstwhile owners.
f) A sum of Rs.10,00,000/- (Rupees Ten Lakhs only) paid on December 4, 2004 by cash to erstwhile owners.
g) A sum ofRs.10,00,000/- (Rupees Ten Lakhs only] paid on December 11, 2004 by cash to erstwhile owners.
h) A sum of Rs.10,00,000/- (Rupees Ten Lakhs only) paid on December 18, 2004 by cash to erstwhile owners.
i) A sum of Rs.13,50,000/- (Rupees Thirteen Lakhs Fifty Thousand only) by way of Cash paid on December 22,2004 erstwhile owners.
j) A sum of Rs.9,34,000/- (Rupees Nine Lakhs Thirty Four Thousand only) by way of Demand Draft bearing No. 487966 dated ---- drawn on UCO Bank, Jalahalli Branch, Bangalore.
k) A sum of Rs.9,34,000/- (Rupees Nine Lakhs Thirty Four Thousand only) by way of Demand Draft bearing No.487967 dated ---- drawn on UCO Bank, Jalahalli Branch, Bangalore.
l) A sum of Rs.9,34,000/- (Rupees Nine Lakhs Thirty Four Thousand only) by way of Demand Draft bearing No.487968 dated ---- drawn on UCO Bank, Jalahalli Branch, Bangalore.86
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m) A sum of Rs.9,34,000/- (Rupees Nine Lakhs Thirty Four Thousand only) by way of Demand Draft bearing No.487969 dated ---- drawn on UCO Bank, Jalahalli Branch, Bangalore.
n) A sum of Rs.9,34,000/- (Rupees Nine Lakhs Thirty Four Thousand only) by way of Demand Draft bearing No.380516, dated September 11, 2006, drawn on Syndicate Bank, Jayanagar, 3rdBlock, Bangalore-560011.
o) A sum of Rs.9,34,000/- (Rupees Nine Lakhs Thirty Four Thousand only) by way of Demand Draft bearing No.380517, dated September 21, 2006, drawn on Syndicate Bank, Jayanagar, 3rdBlock, Bangalore-560011.
p) A sum of Rs.9,34,000/- (Rupees Nine Lakhs Thirty Four Thousand only) by way of Demand Draft bearing No. 380518, dated October 01, 2006, drawn on Syndicate Bank, Jayanagar, 3rdBlock, Bangalore- 560011.
q) Asum of Rs.9,34,000/- (Rupees Nine Lakhs Thirty Four Thousand only) by way of Demand Draft bearing No.380519, dated October 11, 2006, drawn on Syndicate Bank, Jayanagar, 3rdBlock, Bangalore- 560011.
r) A sum of Rs.9,34,000/- (Rupees Nine Lakhs Thirty Four Thousand only) by way of Demand Draft bearing No.380520, dated October 21, 2006, drawn on Syndicate Bank, Jayanagar, 3rdBlock, Bangalore- 560011.
s) A sum of Rs.9,34,000/- (Rupees Nine Lakhs Thirty Four Thousand only) by way of Demand Draft bearing No.380521, dated November 01, 2006, drawn on Syndicate Bank, Jayanagar, 374 Block, Bangalore-560011."
[Emphasis Supplied] 46.1 This Agreement to Sell has thus been executed one day after the Sale Deed was executed between appellant/ defendant No.1 and respondent No.6/defendant No.6. 87
NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR 46.2. The plaint [Ex.P-35] dated 18.09.2009 further set out that the respondent No.6/defendant No.6 (defendant therein) has handed over the original title documents of the suit schedule property to HMT Society. The plaint also sets out that the entire sale consideration of Rs.1,86,90,000/- has been paid by the HMT Society to the respondent No.6/defendant. In addition, it is contended in the plaint that the suit schedule property was to be converted from agricultural to non-agricultural residential purposes and Layouts were to be sanctioned and constructed by the HMT Society and that they are currently in possession of the same. The relevant extract of the HMT Society plaint is below:
"2. Under the Sale Agreement, the defendant has agreed and undertaken to sell the Schedule Property to the plaintiff by getting the same converted from agricultural to non- agricultural residential purpose form the competent authority. Under the Sale Agreement, the defendant has handed over the original title deed to the Schedule Property standing in the name of the defendant. Under the Sale Agreement the defendant has agreed to make out a title to the Schedule Property to the satisfaction of the plaintiff. Under the Sale agreement, the defendant has agreed to sell the Schedule Property after conversion or sell the sites formed therein to the plaintiff or its nominee/members after forming the layout by obtaining the layout plan sanctioned from the competent authority. Under the sale Agreement, the defendant has agreed to and undertake to hand over the physical vacant possession of the Schedule Property to the plaintiff or to its nominee on the date of execution and registration of the Sale deed.
88 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR xxx xxx xxx
4. The Plaintiff submits that the Plaintiff has entered into an Agreement to Sell dated September 2nd 2006 and has paid an entire sale consideration of Rs.1,86,90,000/- (Rupees One Crore Eighty Six Lakhs Ninety Thousand Only) to the Defendant. Having received the entire sale consideration. Defendant has handed over the original documents of title to the Plaintiff. The Plaintiff is in possession of the original documents of title and has sufficient money to pay requisite stamp duty and registration fee for execution and registration of the Sale Deed. Under the Agreement to Sell, the Plaintiff has agreed to sell the Schedule Property and agreed to execute and register the Sale Deed either in the name of the Plaintiff or in the name of its nominee. It is submitted that the Plaintiff is/was always expecting that the Defendant would perform his obligations in terms of the Agreement to Sell. In response to the Plaintiff's request, the Defendants have refused to execute and register the Sale deed. The Defendant who have received substantial amount of Rs.1,86,90,000/- (Rupees One Crore Eighty Six Lakhs Ninety Thousand Only) ought to have complied with the terms of the Agreement and executed and registered the Sale Deed in favour of the Plaintiff or in favour of its nominee. The Defendant not issued any notice rescinding the contract. The Agreement to Sell dated 02.09.2006 between the Plaintiff and the Defendants is still subsisting and validly enforceable."
[Emphasis Supplied] 46.3. The suit thus has been filed directing specific performance of the Agreement of Sale dated 02.09.2006 executed between HMT Society and respondent No.6 in pursuance of the HMT MOU dated 11.07.2006. There is no reference to the earlier MOU.
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47. In the Written Statement filed to the HMT Society suit, the respondent No.6/defendant No.6 does not deny the sale of the suit schedule property to the HMT Society or that amounts were paid. The respondent No.6/defendant No.6 however avers that the cheques and amounts were not paid to him, but were paid to the erstwhile owners of the property. The erstwhile owners here would reference the appellant/defendant No.1. The relevant extract of the Written Statement (Ex.P36) dated 30.08.2010 filed by respondent No.6/defendant No.6 to the HMT society plaint is set out below:
" 4. With regard to the contents of paragraph No.1 of III of the plaint that the defendant is the absolute owner in possession of all that piece and parcel of agricultural dry lands bearing Survey No. 87 measuring to an extent of 6 acre 27 guntas along with 11 guntas of Karab land situated at Bethangere Village Dasanapura Hobli, Bangalore Taluk (hereinafter referred to as the Schedule Property) and further that the Plaintiff and the Defendant have entered into a Memorandum of Understanding (MOU) dated 11.07.2006 are all true and correct, and that the same warrants no comments from this Defendant.
It is further submitted with regard to the averments that in furtherance of the said MOU the plaintiff has paid the Defendant totally an amount of Rs.2,31,57,000/- either by way of Cheque or DD are all vehemently and emphatically denied as false and that the Plaintiff is put to strict proof of the same. Further the averments that as per the MOU the Defendant had agreed to procure 60 acres land in 90 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR Bethanagere Village and further that the Defendant has to proceed to register the lands in parts for which the title has been cleared by the legal advisor of the Plaintiff are all true and correct, and that the same warrants no comments from this Defendant. It is further submitted that after registration of the lands, the defendant is required to enter into an Agreement to Sell with respect to the lands registered in his favour are all false and that the Plaintiff is put to strict proof of the same.
With regard to the remaining averments of the same paragraph that in terms of the said MOU the Defendant has entered into a sale agreement dated 02.09.2006 with the Plaintiff agreeing to sell the schedule property for a total consideration of Rs. 1,86,90,000/- are all vehemently and emphatically denied as false and that the Plaintiff is put to strict proof of the same.
xxx xxx xxx It is submitted that in reality it is only the Defendant who has paid for the entire sale consideration to get the lands registered in his name and that the Plaintiff has never made any payments to the defendant. It is further submitted with regard to the averments that the same is adjusted towards the consideration agreed under the sale agreement are vehemently and emphatically denied as false and that the Plaintiff is put to strict proof of the same. Defendant most humbly submits that he has at no point of time entered into any sale agreement. It is further submitted with regard to the averments that accordingly in the agreement the Cheques/Cash issued by the Defendant in favour of the erstwhile land owners of the Schedule Property has been adjusted by showing the Cheque/Cash issued by the Defendant are all specifically and expressly denied as false and that the Plaintiff is put to strict proof of the same....."
[Emphasis Supplied] 91 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR
48. The sale deed executed between respondent No.6 and appellant/defendant No.1 on 01.09.2006 in paragraph No.1 references that the sale consideration of Rs.1,89,90,000/- has been received by drafts as well as cash, in the following manner:
"1. In consideration of the amount agreed towards the purchase of the Schedule Property, the Purchaser agrees to pay to the Vendor the agreed sale consideration of Rs.1,86,90,000/- (Rupees One Crore Eighty-Six Lakhs Ninety Thousand Only) as hereunder:
a) A sum of Rs.10,00,000/- (Rupees Ten Lakhs only) paid on 04.11.2004 paid by the Purchaser to the Vendor by way cash.
b) A sum of Rs.10,00,000/- (Rupees Ten Lakhs only) paid on 10.11.2004 paid by the Purchaser to the Vendor by way cash.
c) A sum of Rs. 10,00,000/- (Rupees Ten Lakhs only) paid on 16.11.2004 paid by the Purchaser to the Vendor by way cash.
d) A sum of Rs. 10,00,000/- (Rupees Ten Lakhs only) paid on 22.11.2004 paid by the Purchaser to the Vendor by way cash.
e) A sum of Rs. 10,00,000/- (Rupees Ten Lakhs only) paid on 27.11.2004 paid by the Purchaser to the Vendor by way cash.
f) A sum of Rs. 10,00,000/- (Rupees Ten Lakhs only paid on 04.12.2004 paid by the Purchaser to the Vendor by way cash.
g) A sum of Rs.10,00,000/- (Rupees Ten Lakhs only) paid on 11.12.2004 paid by the Purchaser to the Vendor by way cash.
h) A sum of Rs. 10,00,000/- (Rupees Ten Lakhs only) paid on 18.12.2004 paid by the Purchaser to the Vendor by way cash.92
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i) A sum of Rs. 13,50,000/- (Rupees Thirteen Lakhs Fifty Thousand only) paid on 22.12.2004 paid by the Purchaser to the Vendor by way cash.
j) A sum of Rs. 9,34,000/- (Rupees Nine Lakhs Thirty Four Thousand only) vide Demand Draft bearing No. 487966 dated ---- drawn on UCO Bank, Jalahalli Branch, Bangalore.
k) A sum of Rs. 9,34,000/- (Rupees Nine Lakhs Thirty Four Thousand only vide Demand Draft bearing No. 487967 dated ---- drawn on UCO Bank, Jalahalli Branch, Bangalore.
l) A sum of Rs. 9,34,000/- (Rupees Nine Lakhs Thirty Four Thousand only) vide Demand Draft bearing No.487968 dated ---- drawn on UCO Bank, Jalahalli Branch, Bangalore.
m) A sum of Rs. 9,34,000/- (Rupees Nine Lakhs Thirty Four Thousand only) vide Demand Draft bearing No. 487969 dated ---- drawn on UCO Bank, Jalahalli Branch, Bangalore.
n) A sum of Rs. 9,34,000/- (Rupees Nine Lakhs Thirty Four Thousand only) vide Cheque bearing No.380516, dated 11.09.2006, drawn on Syndicate Bank, Jayanagar, 3rd Block, Bangalore-560011.
o) A sum of Rs. 9,34,000/- (Rupees Nine Lakhs Thirty Four Thousand only vide Cheque bearing No.380517, dated 21.09.2006, drawn on Syndicate Bank, Jayanagar, 3rd Block, Bangalore-560011.
p) A sum of Rs. 9,34,000/- (Rupees Nine Lakhs Thirty Four Thousand only) vide Cheque bearing No.380518, dated 01.10.2006, drawn on Syndicate Bank, Jayanagar, 3rd Block, Bangalore-560011.
q) A sum of Rs. 9,34,000/- (Rupees Nine Lakhs Thirty Four Thousand only) vide Cheque bearing No.380519, dated 11.10.2006, drawn on Syndicate Bank, Jayanagar, 3rd Block, Bangalore-560011.
r) A sum of Rs. 9,34,000/- (Rupees Nine Lakhs Thirty Four Thousand only) vide Cheque bearing No.380520, dated 21.10.2006, drawn on Syndicate Bank, Jayanagar, 3rd Block, Bangalore - 560 011.
s) A sum of Rs. 9,34,000/- (Rupees Nine Lakhs Thirty Four Thousand only) vide Cheque bearing No.380521, dated 01.11.2006, drawn on Syndicate Bank, Jayanagar, 3rd Block, Bangalore - 560 011.
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48.1 The reference to these amounts is exactly the same as has been referred to in the HMT plaint filed as Ex.P35 i.e., the suit for specific performance inter-se the HMT Society and respondent No.6/defendant No.6. Thus, the amounts that were received by the appellant/defendant No.1 were in fact not received from respondent No.6/defendant No.6, but from HMT Society and this has been admitted by the respondent No.6/defendant No.6 in its written statement [Ex.P-36].
Thus, so far as concerns the appeal filed by the respondent No.6/defendant No.6, qua the suit schedule property, the same cannot be considered in view of the fact that he has admittedly not paid the consideration amount for the Sale Deed that was executed in his favour but has been paid by HMT Society and the transfer was pendente lite.
(j) Lis Pendence
49. However, and in any event, as has been discussed above, the sale deed [Ex.P-25] was executed by appellant/defendant No.1 in contravention of the order of injunction passed by the learned Trial Court on 03.08.2005 94 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR and despite knowledge of the order of injunction. Section 52 of the Transfer of Property Act, 1882, prohibits such transfer in the following manner:
"52. Transfer of property pending suit relating thereto.--During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
Explanation.--For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force."
[Emphasis Supplied] 49.1. The Supreme Court in Rajender Singh V. Santa Singh6, has held that a transferee pendente lite is bound by the decree passed in the suit, and such transfer cannot defeat the rights of the parties or the jurisdiction of the Court during 6(1973) 2 SCC 705 95 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR the pendency of the proceedings. The relevant extract of Rajender Singh case is set out below:
"14. The background of the provision set out above was indicated by one of us (Beg, J.,) in Jayaram Mudaliar v. Ayyaswami [(1972) 2 SCC 200, 217: AIR 1973 SC 569]. There, the following definition of the lis pendens from Corpus Juris Secundum(Vol. LIV, p. 570) was cited:
"Lis pendens literally means a pending suit, and the doctrine of lis pendens has been defined as the jurisdiction, power, or control which a court acquires over property involved in a suit pending the continuance of the action, and until final judgment therein."
It was observed there:
"Expositions of the doctrine indicate that the need for it arises from the very nature of the jurisdiction of Courts and their control over the subject-matter of litigation so that parties litigating before it may not remove any part of the subject-matter outside the power of the Court to deal with it and thus make the proceedings infructuous."
15.The doctrine of lis pendens was intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject- matter of litigation from the ambit of the Court's power to decide a pending dispute or frustrate its decree. Alienees acquiring any immovable property during a litigation over it are held to be bound, by an application of the doctrine, by the decree passed in the suit even though they may not have been impleaded in it. The whole object of the doctrine of lis pendens is to subject parties to the litigation as well as others, who seek to acquire rights in immovable property, which are the subject-matter of a litigation, to the power and jurisdiction of the Court so as to prevent the object of a pending action from being defeated."
[Emphasis Supplied] 96 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR
50. There was no valid transfer of title by the Earlier ATS, but only an agreement to enter into one. Undisputably, the sale deed executed by the appellant/defendant No.1 in favour of respondent No.6/defendant No.6 was pendente lite the suit filed by the respondent No.1/plaintiff in contravention of an interim injunction. Since the final judgment does not uphold the defence of appellant/defendant No.1, no rights flow to respondent No.6/defendant No.6 either.
(k) He who seeks equity must do equity:
51. It is a fundamental principle of law that 'he who seeks equity must do equity'. A party seeking equitable relief must act fairly, ethically, and be willing to fulfil their own legal/equitable obligations toward the other party. It ensures fairness, preventing a party from gaining an advantage while ignoring their own duties. The Courts have consistently denied equitable relief to litigants who: (i) suppress material facts; (ii) approach with unclean hands; (iii) misuse the judicial process; (iv) fail to perform their own contractual obligations; or (v) seek to benefit from their own wrongful 97 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR acts; (vi) seek inconsistent reliefs. The principle is also applicable to appeals since it is an extension of the suit.
52. The Supreme Court in Muddam Raju Yadav v. B. Raja Shanker (D) through LRs. & Ors.7 has observed that in a suit for specific performance, the conduct of the parties assumes considerable significance, as it aids the Court in assessing their bona fides at the time of execution of the agreement. It has been further held that even a slight doubt regarding the plaintiff's bona fides, or any suppression of material facts have a bearing on the agreement and equitable and discretionary relief is to be denied. The relevant extract Muddam Raju's case is set out below:
12 "In a suit for specific performance, the conduct of the parties is significant as it assists the Court in evaluating the evidence to find out the bona fides of the parties at the time of execution of the agreement.
Even a slight doubt in the mind of the Court that the plaintiff was not acting bonafidely and that the material facts, having bearing on the agreement, have been withheld in the agreement itself and from the Court also, the equitable and discretionary relief has to be denied. A plaintiff approaching the Court with uncleaned hands, like in the present case--the plaintiff having withheld the document i.e., MoU (Exhibit B-2), as the same was nowhere mentioned in the plaint, the present was a fit case for denial of relief of specific performance and the High Court has rightly allowed the appeal preferred by the 7 2026 SCC OnLine SC 348 98 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR respondent(s)/defendant(s) to set aside the judgment and decree passed by the Trial Court."
13. For the foregoing reasons, we do not find any substance in this Appeal. Hence, the Appeal fails and the same is, accordingly, dismissed."
[Emphasis Supplied] IX. Conclusion:
53. Applying this principle to the conduct of the appellant/defendant No.1, it can be seen that in the present case the appellant/defendant No.1 would not be entitled to any relief from this Court either. The appellant/defendant No.1 did not give any explanation before this Court as to the reason for execution of the Earlier ATS which he was unable to prove except for the admission of its execution. Hence, this Court affirms the finding of the learned Trial Court that the document was likely fabricated to overcome the ATS. No reason was given as to why the appellant/defendant No.1 executed the Sale Deed along with his sons-respondent No.2/defendant No.2 and respondent No.5/defendant No.5 on 01.09.2006 or with regard to and the execution of the release deed dated 30.08.2006 by respondent No.3/defendant No.3 and respondent No.4/defendant No.4, when he was admittedly continuously informing respondent 99 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR No.1/plaintiff that defendants No.2 to 5 would not be required to be present to execute the sale deed with the respondent No.1/plaintiff.
53.1 In addition absolutely no explanation or remorse has been shown qua the defiance of the orders of Injunction of the learned Trial Court either by the appellant/defendant No.1. Despite the ATS and pendency of a suit filed by the respondent No.1/plaintiff, a sale deed was executed in favour of respondent No.6/defendant No.6. These transactions speak volumes of the conduct of the appellant/defendant No.1, clearly, he was habituated to executing multiple transactions for the same property even if it meant defiance of court orders.
54. In the present case, the conduct of the appellant/defendant No.1 clearly demonstrates that he has engaged in multiple and conflicting transactions in respect of the same property, including execution of agreements and sale deeds in favour of different parties, even in the face of subsisting contractual obligations and a court order of 100 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR injunction. Such conduct disentitles him from seeking any equitable consideration from this Court.
55. In addition, and once the appellant/defendant No.1 admits to the execution of the Earlier Agreement and acts thereon and accepts amounts in part performance of such agreement, he loses his right to challenge the ATS executed with the respondent No.1/plaintiff. Accordingly, RFA No.848/2015 filed by appellant/defendant No.1 is dismissed.
56. In the present case not only has the sale deed dated 01.09.2006 [Ex-P25] been executed during the pendency of the suit filed by the respondent No.1/plaintiff, it has also been executed in defiance of an order passed by a competent Court. Thus, the sale deed is null and void and not binding on the respondent No.1/plaintiff.
57. In view of the aforegoing discussions and given the settled law, this Court is not inclined to entertain the appeal filed by the respondent No.6/defendant No.6. Accordingly, RFA No.799/2015 is also dismissed.101
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58. As discussed in para 28 above, the Impugned Judgement dated 26.03.2015 was passed by the learned Trial Court on I.A.No.5 filed under Order XXXIX Rule 2A of the CPC holding that appellant/defendant No.1 has violated the order of the learned Trial Court and there is a wilful breach of injunction order. The learned Trial Court has held that it is just and necessary to pass order on breach of injunction and hence it directed the attachment of the immovable property of the appellant/defendant No.1 and if the appellant/defendant does not hold any property excluding suit schedule property, he shall be sent to civil prison for one month. In view of the aforegoing discussions, this Court does not find any ground to interfere with this finding of the learned Trial Court. Accordingly, MFA No.4414/2015 is also dismissed.
59. In addition and in view of the demonstrably defiant conduct of the appellant/defendant No.1, costs in the sum of Rs.1,00,000/- shall be paid by appellant/defendant No.1 to respondent No.1/plaintiff.
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60. All pending applications stand closed. Digitally signed by DINESH KUMAR SINGH Location: HIGH COURT OF KARNTAKA
(D K SINGH) JUDGE Digitally signed by TARA VITASTA GANJU Location: HIGH COURT OF KARNTAKA (TARA VITASTA GANJU) JUDGE YN/JJ 103