Bangalore District Court
Sri. G. Lakshmi Narayana Reddy vs Smt. T.R.L. Padmavathi on 28 September, 2021
1 O.S.No.5559/2016
IN THE COURT OF THE LXXXVIII ADDL. CITY CIVIL &
SESSIONS JUDGE (EXCLUSIVE DEDICATED COMMERCIAL
COURT): BENGALURU CITY. (CCH-89)
Present: Sri. P.J. SOMASHEKARA, B.A.,LL.M,
LXXXVIII Addl. City Civil & Sessions Judge
Bengaluru City.
Dated this the 28th day of September 2021
Com.O.S.No.5559/2016
Plaintiff: Sri. G. Lakshmi Narayana Reddy,
S/o G.C. Obulesu Reddy,
Aged about 46 years,
R/at No.16/253, Srinivasapuram,
Tadipatri - 515 411,
Andhra Pradesh.
Since dead by LRs:
1(a) Smt. G. Naga Jyothi,
W/o late G. Lakshmi Narayana Reddy,
Aged about 42 years,
1(b) Sri. G. Karthik Reddy,
S/o late G. Lakshmi Narayana Reddy,
Aged about 18 years,
1(c) Sri. G. Lakshmi Akash Reddy,
S/o late G. Lakshmi Narayana Reddy,
Aged about 14 years,
Since minor represented by his natural
guardian mother,
1(a) Smt. G. Naga Jyothi.
All are R/at No.D.No.16/253,
Sreenivasapuram, Thadipatri,
Town and Mandal,
Ananthpura District - 515 411,
Andhra Pradesh
2 O.S.No.5559/2016
(By Sri. B.N.J., Advocate)
-vs-
Defendants: 1. Smt. T.R.L. Padmavathi,
W/o Tumati Ravikumar,
Aged about 44 years,
No.215, "Waterville Apartments",
Ramagondanahalli,
Bangalore - 560 066.
2. M/s Roma Builders,
No.P-1, Raycon Orchard Apartments,
4th Cross, A Block, AECS Layout,
Kundalahalli, Bangalore - 37.
Also at: Sri. Tumati Ravikumar,
Managing Partner M/s Roma Builders,
H.No.185, 1st Cross, A Block,
AECS Layout, Kundalahalli,
Bangalore -37.
(By Sri. M.N.M. Advocate)
3. The Pavagada Souharda Multipurpose
Co-operative Ltd.,
Head Office at No.03, 1st Floor,
M.G. Road, Kolar - 563101.
Administrative Office at: No.2729,
2nd Floor, 14th Cross, E Block,
Kodigehalli Gate, Sahakaranagar,
Bangalore -92.
Represented by its CEO
Mr. N. Venu Gopala Reddy.
(By Sri. JNR/RM Advocate)
Nature of the suit Specific Performance
Date of institution of the 01.08.2016
suit
3 O.S.No.5559/2016
Date of commencement of 11.12.2019
recording of the evidence
Date on which the 28.09.2021
judgment was pronounced
Total duration Year/s Month/s Day/s
05 01 27
JUDGMENT
This is a suit filed by the plaintiff against the defendants for specific performance of contract based on the agreement to sell dated 12.07.2012, directing the defendants to comply with the agreement and to convey by way of absolute sale of the suit B and C schedule properties in his favour by executing and registering the registered sale deed in accordance with law by handing over the vacant possession of the schedule B and C properties or in the alternative upon the defendants failing or refusing to do so be pleased to execute the cause the registration of the sale deed conveying the suit schedule B and C properties in his favour through court of law along with possession and for permanent injunction restraining the defendants, their agents, servants, persons acting under them or claiming under them from alienating or encumbering the suit schedule B and C properties in any manner in favour of the 3rd parties.
2. Net shell of the plaintiff case are as under : 4 O.S.No.5559/2016
The plaintiff in his plaint has alleged that the defendants were entered into registered agreement to sell dated 12.07.2012 of the B and C schedule properties which are constructed in the A schedule property for sale consideration amount of Rs.24 lakhs and received Rs.22 lakhs from him as advance sale consideration amount and agreed to receive the balance sale consideration amount of Rs.2 lakhs at the time of execution of registered sale deed in his favour and a time of 12 months has been fixed for completion of the contract. The defendants were specifically agreed to execute and register the sale deed in his favour by complying with clause 4 of the agreement of sale in respect of B and C schedule properties by performing other terms of the agreement, pursuant to the agreement to sell, he has expressed his readiness and willingness to complete the transaction on number of occasion, but the defendants were postponed the same on one or the other pretext, on persistent requests and demands, the defendants without executing the proper conveyance, have executed an addendum to agreement to sell dated 12.07.2012 on 24.03.2015. The defendants have agreed to execute and register the sale deed in respect of the B and C schedule properties after completion of the construction and 11 months has been fixed under the addendum for enabling the 5 O.S.No.5559/2016 defendants to complete the construction and thereafter executed and registered sale deed in his favour and it is understood for whichever is earlier for completion of contract.
3. The plaintiff in his plaint has further alleged that after completion of the time agreed under the addendum has approached and requested the defendants to execute the registered sale deed by receiving the balance sale consideration of Rs.2 lakhs, then also the defendants were postponed the same on one pretext or the other without there being any valid reasons by convincing him. Thus he has expressed on innumerable occasions with the defendants about his readiness and willingness to complete the transaction by paying the balance sale consideration of Rs.2 lakhs and to get the sale deed registered in his name, though the defendants were agreed but postpone the same for the reasons best known to them, having waited sufficiently for long time got issued legal notice dated 28.04.2016 to calling upon the defendants to execute the registered sale deed in his favour in respect of B and C schedule properties by receiving balance sale consideration amount of Rs.2 lakhs within 15 days from the date of receipt of the notice. The notice has been duly served on the defendants on the last address given in the cause title. The notices which are sent to the 6 O.S.No.5559/2016 defendant No.1 and 2 in the first address have been successfully avoided by them, though the defendants have received legal notice have failed to comply or reply to the said notice and he has reliably learnt from reliable sources that after receipt of the legal notice to defraud and defraud his right under the agreement, the defendants were trying to alienate the schedule B and C properties with a meager price to the 3rd parties, if the defendants are allowed to alienate the schedule property to the 3rd parties, he will be put to irreparable loss and injustice. The defendants have no manner of right, title and interest or possession over the schedule B and C properties and to deal with the same with the 3rd parties during the subsistence of agreement to sell in his favour, the act of mal versions that was committed by the defendants are against to the law and principles of natural justice in particular. The defendants have no right to alienate the schedule B and C properties in favour of others ignoring his rights over the said properties.
4. The plaintiff in his plaint has further alleged that for the first time the defendants come out openly with a hostile attitude by not registering the B and C schedule properties and attempted to alienate schedule B and C properties in favour of the others as such the act of the defendants indicates amounts to refusal to 7 O.S.No.5559/2016 perform their part of contract and recently came to know that after registered agreement of sale dated 12.07.2012 in his favour, the defendant No.1 and 2 in collusion with the defendant No.3 have created some documents within themselves with an intention to cheat and defraud his right under the agreement of sale dated 12.07.2012. The defendants No.1 and 2 after execution of the registered agreement of sale dated 12.07.2012 in order to cheat and defraud his right created the documents styled as deposit of title deed dated 13.02.2014 with the 3 rd defendant. The defendants colluding together to defraud and defeat his right which accrued under the registered agreement of sale dated 12.07.2012 have created the sale deed in the name of 3rd defendant on 20.09.2016. The said mortgage and sale are not binding on him as they are the outcome of fraud and collusion between the defendants. The defendants did so being fully aware of the registered agreement of sale which executed in his favour in respect of the schedule properties and they did so to cause loss and to cheat him, that too after filing of suit and passing of interim order by this court. The act of the defendants No.1 and 2 and the defendant No.3 is highly illegal and unwarranted. The 3 rd defendant is not an bonafide purchaser for value. The mortgage and the sale are not binding on him or his right which accrued 8 O.S.No.5559/2016 under the registered agreement of sale. The cause of action for the suit which arose on 12.07.2012 when the defendant No.1 and 2 were got executed registered agreement of sale and on 24.03.2015 when the defendants No.1 and 2 were executed addendum to the registered agreement of sale and on 28.04.2016 when the notice has been issued to the defendants to calling upon them to execute the registered sale deed by receiving the balance sale consideration amount within the jurisdiction of this court and prays for decree the suit. When the case was set down for arguments, the learned counsel for the plaintiff has moved an LR's applications, the learned counsel for the defendant No.3 has submitted no objection to the I.A.12 to 14 and the said applications are came to be allowed and the learned counsel for the plaintiff got amended the plaint and filed the amended plaint, for which the learned counsel for the defendant No.3 has submitted no additional written statement on the defendant No.3 side and taken as no additional written statement of the defendant No.1 and 2.
5. In response of the suit summons, the defendants were appeared through their respective counsel and filed their independent written statement. The defendants No.1 and 2 in their written statement were alleged the suit which filed by the 9 O.S.No.5559/2016 plaintiff is not maintainable in law or on facts which is deserved for dismissal and denied the para 3 to 13 of the plaint as false and baseless statement of the plaintiff, except those which are expressly admitted. The suit which filed is not maintainable as the same is barred by limitation as per the alleged agreement of sale. On this ground alone, the suit which filed is deserved for dismissal and denied that they have entered into registered agreement to sell dated 12.07.2012 for sale of Flat No.001, situated at Ground Floor, as mentioned at C schedule property of the plaint averments for which the plaintiff has to strict proof of the same and they were alleged agreement was entered in between them for receipt of Rs.5,00,000/- which has been paid as an advance out of total agreed amount of Rs.50,00,000/- and loan amount for the purpose of commencement of construction of apartment building in the immovable property bearing No.187, Old CMC Khatha No.171 and BBMP Khatha No.187 of Aircraft Employees Co-Operative Society Layout measuring total extent of 3,560 Sq.ft. and the property is situated at Kundalahalli village, Siddappanahalli village and Turubarahalli village, K.R. Puram hobli, Bangalore East Taluk. The plaintiff had agreed to pay a total sum of Rs.50 lakhs on 5 installments, accordingly had paid a sum of Rs.5 lakhs by way of cash as 1 st installment on the date of 10 O.S.No.5559/2016 entering into registered agreement of sale for security purpose and the plaintiff had agreed to pay remaining Rs.45 lakhs on 3 installments of Rs.10 lakhs each and one installment of Rs.15 lakhs within a period of 2 years for the purpose of commencement of work of apartments in the mentioned property.
6. The defendants in their written statement have further alleged that the plaintiff insisted for security of the amount for Rs.5 lakhs for which have entered into agreement only on the basis of the plaintiff instructions for security purposes and the remaining balance amount of Rs.45 lakhs was not paid by the plaintiff, as they are the developers and the plaintiff has postpone to give the same in their favour and suppressed the same by the plaintiff while filing the suit against them, similarly several investors have also agree to pay Rs.50 lakhs each for commencement of apartment project by way of hand loan and all of them have paid Rs.5 lakhs each and obtained agreement of sale by promising to pay remaining Rs.45 lakhs amount with 4 installment on every six months of commencement of project and the plaintiff as well as similarly situated persons have also not paid the remaining amount as agreed on the day of registered agreement for which within a stipulated time could not able to start the construction of apartment work fastly and they 11 O.S.No.5559/2016 sustained huge loss for non payment of remaining balance amount of Rs.45 lakhs each and availed loan from private persons and banks and completed the project. The plaintiff has already received month to month interest as well as principal amount from them for the said hand loan amount of Rs.5 lakhs which has been paid by the plaintiff and the plaintiff assured them that he will cancel the alleged agreement of sale and not come forward for cancellation, but the plaintiff has suppressed the said facts and filed the instant false suit against them.
7. The defendants in their written statement have further alleged that the alleged agreement of sale entered in between them is only for collateral purpose for the payment of advance amount of Rs.5 lakhs out of agreed amount of Rs.50 lakes, since the plaintiff is already received the entire amount which was paid together with interest from them being the developers, the said fact has been suppressed by the plaintiff and only to blackmail and to knock out valuable property and money a false suit has been filed against them and the case of the plaintiff cannot be acceptable in the eye of law and failed to cancel the agreement of sale after receipt of the amount which has been paid by the plaintiff and they were reversed their right to initiate appropriate proceedings before the appropriate court of law and authorities 12 O.S.No.5559/2016 and denied that they have agreed to receive balance sale consideration amount of Rs.2 lakhs at the time of execution of registered sale deed in favour of the plaintiff and they have executed addendum to agreement of sale and further fixed 11 months time to perform their part of the agreement and they did not come forward to execute the registered sale deed by receiving balance sale consideration amount and they were alleged that the plaintiff has suppressed the true facts and filed the false suit based on the alleged agreement of sale and he has also filed two suits against them on the basis of false alleged agreement of sale in O.S.No.5556/2016 and O.S.No.5558/2016 and the said cases are pending for consideration and the plaintiff is not having sufficient money to give the same on the date of alleged agreement and he has paid only Rs.5 lakhs in advance with respect to starting of project and for the security of the said amount has taken several documents such as GPA, on demand promissory note, consideration receipt and duly signed blank cheques which are in the custody of the plaintiff till this day and they were denied all the averments which made in the plaint and alleged that there is no subsisting contract in between them and the suit of the plaintiff is deserved for dismissal and prays for dismiss the suit with cost.
13 O.S.No.5559/2016
8. The defendant No.3 in its written statement has alleged that the suit of the plaintiff is not maintainable in law or on facts and the plaintiff has not approached the court with clean hands, since he has suppressed the true facts while seeking for a discretionary relief of specific performance of the alleged agreement and the cause of action which pleaded is ambiguous and there is no agreement between the parties as alleged in the plaint and the one referred to in the plaint is a manipulated one and the plaintiff is a powerful person belonged to majority community in the area having influence trying to misuse the said power to knock off its property and denied the plaintiff has got a very good case and denied that the plaint averments and he has alleged the it is not relating that the registered agreement to sale dated 12.07.2012 which alleged to have been taken place in between the plaintiff and the defendant No.1 and 2, thus does not need any commentary as a result it is untenable and not at all aware of the averments in para No.6 to 10 of the plaint and initially the plaintiff has not made any reference and the plaintiff cannot fasten any liability and who is not part of those negotiations and alleged that the defendant No.1 and 2 were approached for financial support to construct their housing project and asked to provide entire documents for the legal 14 O.S.No.5559/2016 opinion and lend the housing loan, accordingly the defendant No.1 and 2 parted the title deeds and same was forwarded to legal team and after obtaining the opinion enlarged the loan facilities to the defendant No.1 and 2 and released the amount by mortgaging/ security of the defendant No.1 and 2 immovable properties, thus the plaintiff is not entitled for the relief of specific performance based on the alleged agreement of sale and he is having original title deeds of the schedule property and the defendant No.1 and 2 have completed the project and ready for occupation and suit of the plaintiff is untenable and prays for dismiss the suit with cost.
9. On the basis of the pleadings of the parties, my predecessor has framed the following issues:
ISSUES
1. Whether the plaintiff proves that the defendants entered into an agreement of sale of suit schedule properties in favour of plaintiff on 12.07.2012 for total consideration of Rs.24,00,000/- and received advance sale consideration amount of Rs.22,00,000/- and agreed to receive the balance sale consideration amount of Rs.2,00,000/- at the time of execution and registration of the sale deed in favour of plaintiff?
2. Whether the plaintiff further proves that in spite of request, demand and notice dated 28.04.2016 of the plaintiff, the defendant 15 O.S.No.5559/2016 refused to comply with the obligation under the agreement?
3. Whether the plaintiff further proves that he is every ready and willing to perform his part of the contract?
4. Whether the defendant No.1 and 2 proves that as per the registered sale agreement dated 12.07.20212 they paid advance amount of Rs.5,00,000/- to the plaintiff out of the total consideration of Rs.50,00,000/- towards construction of flat in 'A' schedule property by agreeing to repay the balance amount in installments?
5. Whether the defendant No.1 and 2 further proves that the plaintiff has already received hand loan of Rs.5,00,000/- along with interest on the same amount from month to month by agreeing to cancel the agreement?
6. Whether the plaintiff is entitled for the relief of specific performance of contract as prayed?
7. What order or decree?
10. The plaintiff in order to prove its plaint averments has examined himself as P.W.1 and got marked documents as Ex.P.1 to P.9 and the plaintiff has not examined any witness in his favour. The defendants No.1 and 2 have not examined themselves nor examined any witness on their behalf or marked any documents. The defendant No.3 has examined its Chief-Executive Officer as D.W.1 and got marked one document as Ex.D.1 and the defendant No.3 has not examined any witness in its favour. 16 O.S.No.5559/2016
11. Heard the arguments on both sides.
12. My findings to the above issues are as under:
Issue No.1: In the affirmative;
Issue No.2: In the affirmative;
Issue No.3: In the affirmative;
Issue No.4: In the negative;
Issue No.5: In the negative;
Issue No.6: In the affirmative;
Issue No.7: As per final order, for the following;
REASONS
13. ISSUE NO.1 to 3: These issues are interrelated to each other hence, in order to avoid the repetition of facts and materials on record, these issues are discussed together. The plaintiff has approached the court on the ground himself and the defendant no.1 and 2 were entered into registered agreement of sale in respect of B and C schedule properties on 12.07.2012, in total sale consideration amount of Rs.24 lakhs for which had paid Rs.22 lakhs as advance sale consideration amount and the defendants were agreed to receive the balance sale consideration amount of Rs.2,00,000/- at the time of execution of registered sale deed, though he was always ready and willing to perform his part of the agreement, but the defendants did not come forward to discharge their obligation in spite of repeated request, demand 17 O.S.No.5559/2016 and notice, thereby the plaintiff has filed in the instant suit against the defendants.
14. The learned counsel for the plaintiff while canvassing his arguments has submitted the plaintiff has filed the instant suit against the defendants for specific performance of the contract based on the registered agreement of sale dated 12.07.2012 and addendum to agreement to sell dated 12.07.2012 on 24.03.2015 as the defendants No.1 and 2 being the owners of B and C schedule properties were entered into an agreement of sale and total sale consideration has been fixed for Rs.24 lakhs and the plaintiff has paid Rs.22 lakhs as advance sale consideration amount and the defendants were agreed to receive the balance sale consideration amount of Rs.2,00,000/- at the time of execution of the registered sale deed in favour of the plaintiff though the plaintiff was always ready and willing to perform his part of the agreement but the defendants did not come forward to execute the registered sale deed by receiving balance sale consideration amount and the time has been fixed for performance of the agreement in pursuance of agreement of sale dated 12.07.2012 for 12 months, but the defendants unable to complete the construction, thereby again executed addendum to the agreement on 24.03.2015 and again 11 months time has 18 O.S.No.5559/2016 been fixed for performance of the agreement and for completion of the construction, though the construction was ready for occupation, but the defendants did not come forward either to receive balance sale consideration nor to execute the registered sale deed, thereby the plaintiff got issued legal notice on 28.04.2016 to calling upon the defendants to execute the registered sale deed by receiving balance sale consideration of Rs.2,00,000/- in respect of B and C schedule properties, but the defendants in spite of service of notice did not come forward nor executed the registered sale deed or receiving balance sale consideration amount and the defendant No.1 and 2 without the knowledge of the plaintiff have deposited title deeds in favour of the defendant No.3 knowing fully well that there was an agreement of sale and addendum to agreement to sell are in existence in between the plaintiff and the defendant No.1 and 2, but the defendant No.1 and 2 in colluding with the defendant No.3 were executed the despot of title deed in favour of the defendant No.3. Thereby the defendant No.3 has been impleaded subsequently, though the defendants filed their written statement, but the defendant No.1 and 2 did not entered the witness box nor led the evidence or cross-examined the P.W.1 and the defendant No.3 though examined its CEO as DW1 but 19 O.S.No.5559/2016 nothing is proved its case. On the other hand, the plaintiff has proved his case through oral and documentary evidence and prays for decree the suit.
15. The defendant No.1 and 2 though were appeared through their respective counsel and filed the written statement, but their counsel after issuance of notice has been retired on behalf of the defendant No.1 and 2, though the case was set down for appearance of the defendant No.1 and 2, but they did not appear nor cross-examined the P.W.1 or led the evidence or address the arguments, thereby taken as no arguments on the defendant No.1 and 2 side.
16. Per contra, the learned counsel for the defendant No.3 in his arguments has submitted that the defendant No.3 is not aware of the agreement of sale nor addendum to agreement which alleged to have been taken place in between the plaintiff and the defendant No.1 and 2, but the defendant No.1 and 2 were approached the 3rd defendant for financial support to construct their housing project, thereby the defendant No.3 has been directed the defendant No.1 and 2 to provide the entire documents for the legal opinion and to extend the loan in favour of the defendant No.1 and 2, accordingly the defendant No.1 and 20 O.S.No.5559/2016 2 were produced the title deeds and same was forwarded to the legal opinion, after obtaining the legal opinion extended the loan and the defendant No.1 and 2 for the said amount have mortgaged the schedule properties in favour of the defendant No.3, thereby the plaintiff is not entitle the relief as prayed for and the plaintiff has created and concocted the documents for wrongful gain. The plaint averments reflects the alleged agreement was taken place in between the plaintiff and the defendant in the year 2012 and the addendum to agreement was taken place on 24.03.2015. If the first agreement which alleged to have been taken place in between the plaintiff and the defendant No.1 and 2 is taken into consideration, the suit of the plaintiff is barred by limitation though the alleged agreement dated 12.07.2012 is the registered document, but where as the addendum to agreement to sell dated 12.07.2012 on 24.03.2015 is not the registered document which requires compulsory registration, without registration, no relief can be granted based on that document. So if two documents are taken into consideration, the suit of the plaintiff is hopelessly barred by limitation. On this ground alone, the suit of the plaintiff is deserved for dismissal, merely on the ground that the D.W.1 has admitted that he has no hurdle for execution of the sale deed in 21 O.S.No.5559/2016 favour of the plaintiff by paying the amount which already paid to the defendant No.1 and 2 to the defendant No.3 does not mean that the plaintiff is entitled the relief as prayed for, since the D.W.1 has not properly understand the question which posed by the learned counsel for the plaintiff and the person who approached the court has to prove his case, but the plaintiff has not proved his case through oral and documentary evidence and the relief which sought in the plaint is taken into consideration, the plaintiff is not entitled the relief as prayed for and prays for dismiss the suit with cost.
17. The plaintiff in order to prove the plaint averments has filed his affidavit as his chief-examination by reiterating the plaint averments stating that the defendants No.1 and 2 were agreed to sell B and C schedule properties which are constructed in the A schedule property for total sale consideration amount of Rs.24 lakhs for which the defendant No.1 and 2 were received advance sale consideration amount of Rs.22 lakhs and executed registered agreement of sale dated 12.07.2012 by agreeing to execute the registered sale deed by receiving the balance sale consideration amount of Rs.2,00,000/- and time has been fixed for completion of the contract for 12 months, though he was always ready and willing to perform his part of the contract, but the defendant No.1 22 O.S.No.5559/2016 and 2 did not come forward either to receive the balance sale consideration amount nor to execute the registered sale deed, in spite of repeated request and demand, but the defendants instead of executing the registered sale deed have executed addendum to agreement to sell on 24.03.2015 and agreed to execute the registered sale deed in respect of the schedule B and C schedule properties after completion of the construction and 11 months time has been fixed under the addendum for enabling the defendants to complete the construction and to execute the registered sale deed in his favour, but after completion of the time agreed under the addendum approached the defendants and requesting them to execute the registered sale deed by receiving balance sale consideration amount of Rs.2,00,000/- then also the defendants were postponed the same on one or the other pretext without being any valid reasons, thereby he got issued legal notice on 28.04.2016 to calling upon the defendants to execute the registered sale deed in his favour in respect of B and C schedule properties by receiving balance sale consideration amount of Rs.2,00,000/-, though notice has been served on the defendant No.1 and 2, but they did not come forward nor executed the registered sale deed. In the mean while he was learnt that the defendant No.1 and 2 in order to defraud and 23 O.S.No.5559/2016 defeat his right, trying to alienate the schedule properties in favour of the 3rd parties with a meager price for which the defendants have no right and the defendant No.1 to 3 in colluding with each other in order to defraud and defeat his right which accrued under the agreement of sale dated 12.07.2012 have created sale deed in the name of 3 rd defendant on 20.09.2016. The said mortgage and sale are not binding on him, since the defendant No.1 and 2 were fully aware of the registered agreement of sale which executed in his favour in order to cause loss were entered an mortgage and sale deed with the defendant No.3 in respect of the schedule properties which is highly illegal and unwarranted.
18. The learned counsel for the defendant No.3 has cross examined the P.W.1 and suggested the P.W.1 that the Ex.P.2 was not registered for which the P.W.1 has admitted that Ex.P.2 was not registered, but where as the agreement of sale which taken place in between him and the defendant No.1 and 2 was came to be registered and denied that in order to over come the lapses entered the addendum of agreement of sale in the month of March 2015 and denied that himself and the defendant No.1 and 2 were colluding with each other with an intention to cheat the defendant No.3 and is not entitled the relief as sought since the 24 O.S.No.5559/2016 addendum to the agreement was not registered and admitted in the month of July 2012 he has entered registered agreement of sale with the defendant No.1 and 2. Though the defendants No.1 and 2 were appeared through their respective counsel, but they did not cross-examined the P.W.1 nor led their evidence. Therefore, the cross of P.W.1 on the defendant No.1 and 2 taken as nil.
19. The learned counsel for the defendant No.3 while canvassing his arguments has much argued that the suit which filed by the plaintiff is barred by limitation on the ground the alleged registered agreement of sale was taken place on 12.07.2012 and addendum to agreement was taken place on 24.03.2015. Thus this court drawn its attention on article 54 of the Limitation Act which reads like this:
Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows:
"For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.
The above article is very much clear where the date has been fixed for performance, the limitation starts from that date for three years for filing the suit for specific performance, where the 25 O.S.No.5559/2016 date is not fixed, the date of refusal for starting the limitation for three years. In the instant case, the registered agreement of sale was taken place on 12.07.2012 and 12 months time has been fixed for performance of the contract. So, 3 years limitation starts from 12.07.2013 as per the article which mentioned above and it expires on 12.07.2016. Admittedly, the suit has been filed on 01.08.2016 is well within limitation and moreover the addendum to agreement to sell dated 12.07.2012 has been executed by the defendant No.1 and 2 in favour of the plaintiff on 24.03.2015. So, by virtue of the said addendum to the agreement is taken into consideration which is well within limitation, as the defendants were executed the addendum to the agreement, even if the addendum to agreement is taken into consideration, the plaintiff has filed the instant suit within the limitation. Thus this court drawn its attention on section 18 of the limitation act which reads as fallows;
18. Effect of acknowledgment in writing.--
(1) Where, before the expiration of the prescribed period for a suit of application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was 26 O.S.No.5559/2016 so signed.
(2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received. Explanation.-- For the purposes of this section,--
(a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set-off, or is addressed to a person other than a person entitled to the property or right;
(b) the word "signed" means signed either personally or by an agent duly authorised in this behalf; and
(c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right.
The above provision is very much clear whether before the expiry of the prescribed period for a suit of obligation in respect of any property or right an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom the said property or right is claimed or by any person through him he derives his right or liability a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. In the instant case also Ex.P.2 is very much clear that the defendant No.1 and 2 were acknowledged not only their liability, but also extension of the 27 O.S.No.5559/2016 limitation. Therefore, by virtue of the provision which referred above is taken into consideration, the limitation shall be computed from the time when the acknowledgment was so signed.
20. The learned counsel for the defendant No.3 while canvassing his arguments has much argued that no right has been accrued to the plaintiff by virtue of the Ex.P.2 which is the addendum to the agreement to sell dated 12.07.2012 which executed by the defendant No.1 and 2 on 24.03.2015 on the ground that the said document was not registered under Sec.17 of the Indian Registration Act. Now the question arises whether the Ex.P.2 is the compulsory registerable document. If the Ex.P.2 is the compulsory registerable document, then the arguments which advanced by the learned counsel for defendant No.3 would have accepted. Thus this court drawn its attention on Sec.18 of the Indian Registration Act which reads like this:
18. Documents of which registration is optional.--
Any of the following documents may be registered under this Act, namely:--
(a) instruments (other than instruments of gift and wills) which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less then one hundred rupees, to or in immovable property;
(b) instruments acknowledging the receipt or 28 O.S.No.5559/2016 payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;
(c) leases of immovable property for any term not exceeding one year, and leases exempted under section 17;
33 [(cc) instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less than one hundred rupees, to or in immovable property;]
(d) instruments (other than wills) which purport or operate to create, declare, assign, limit or extinguish any right, title or interest to or in movable property;
(e) wills; and
(f) all other documents not required by section 17 to be registered. State Amendments Andhra Pradesh: In section 18, clause (c) should be omitted. [Vide Andhra Pradesh Act 4 of 1999, sec. 3 (w.e.f. 1-4- 1999)]. Gujarat: Amendments are the same as those of Maharashtra. [Vide Gujarat Act 11 of 1960, sec. 87, Gujarat A.L.O., 1960]. Maharashtra: In section 18,--
(i) delete the word "and" after clause (e);
(ii) after clause (e) insert the following clause, namely:-- "(ee) notices of pending suits or proceedings referred to in section 52 of the Transfer of Property Act, 1882;". [Vide Bombay Act 14 of 1939, sec. 4 (w.e.f. 15-6-1939) read with Act 35 of 1958, sec. 2 (w.e.f. 28-4-1958)]. Note.--Section 2 of Bombay Act 14 of 1939, as amended by Bombay Act 17 of 1945, is as follows:-- "2. Application of Act.-- This Act shall apply to notices in respect of suits or proceedings which relate to immovable properties situate wholly or partly in the Greater Bombay with effect from such date as may be directed by the State Government in this behalf by notification in the Official Gazette: Provided that the State Government may by similar notification direct that the provisions of this Act shall apply to such notices relating to immovable properties situate wholly or partly in such other area as may be specified in the said notification."
29 O.S.No.5559/2016
(iii) the word "and" in clause (ee) shall be added at the end and clause (eei) inserted by Act (Bombay Act 6 of 1960), sec. 43, shall be deleted. [Vide Maharashtra Act 20 of 1971, sec. 58 (w.e.f. 15-6- 1972)]. Uttar Pradesh: In section 18, clauses (a), (b) and (cc) be omitted. [Vide Uttar Pradesh Act 57 of 1976, sec. 33 (w.e.f. 1-1-1977)]. In section 18(c), omit the words and figures "and leases exempted under section 17". [Vide Uttar Pradesh Act 19 of 1981, sec. 6 (w.r.e.f. 1-8-1981)]. Section 18A Delhi: Same as in Punjab. [Vide G.S.R. 465 dated 20th March, 1965, Gazette of India, 1965, Pt. II, Sec. 3(i), page 499]. Himachal Pradesh: Same as in Punjab. [Vide Himachal Pradesh Act 2 of 1969, sec. 3 (w.e.f. 11-4-1969)]. Punjab, Haryana, Chandigarh: After section 18, insert the following new section:-- "18A. Document for registration to be accompanied by a true copy thereof.--Notwithstanding anything contained in this Act, the registering officer shall refuse to register any document presented to him for registration unless such document is accompanied by a true copy thereof." [Vide Punjab Act 19 of 1961, sec. 2 (w.e.f. 4- 5-1961); Act 33 of 1966 sec. 89]. Tripura: After section 18, insert as under:-- "18A. Document for registration to be accompanied by a true copy.-- (1) Notwithstanding anything contained in the Act, the registering officer shall refuse to register any document presented to him for registration unless such document is accompanied by a true copy thereof.
(2) The true copy referred to in sub-section (1) shall be neatly handwritten or printed or type-written or lithographed or otherwise prepared in such manner as may be prescribed." [Vide Tripura Act 7 of 1982, sec. 2 (w.e.f. 1-1-1983)]. Uttar Pradesh: Section 18A as inserted by U.P. Act 14 of 1971, omitted by U.P. Act 19 of 1981, sec. 7 (w.r.e.f. 1-8-1981). Prior to omission section 18A ran as under: "18A. Documents for registration to be accompanied by a true copy thereof.-- (1) The registering officer shall refuse to register any document presented to him for registration unless such document is accompanied by a true copy thereof, and in the case of a document referred to in section 19, also by a true copy of the 30 O.S.No.5559/2016 translation referred to therein.
(2) A copy referred to in sub-section (1) shall not be a carbon copy, and shall be neatly handwritten, printed or typewritten, or be a cyclostyled copy of type-written matter, on only one side of the paper, and shall be prepared in accordance with such rules, if any, as may be made in that behalf, and shall contain a declaration in the prescribed manner that the same is a true copy of the document or of the translation, as the case may be." Comments Non- registration of a will can assume importance only when it exists with some suspicious circumstances; Celestine Silva Bai v. Jasphine Noronha Bai, AIR 1956 Mad 566.
The above provision is very much clear any of the documents which mentioned in the above provision are the optional for registration and the instruments acknowledging the receipt or payment of any consideration an account of the creation, declaration, assignment, limitation or extension of any such right title or interest which is an option to the party either to register or not which is not a compulsory registrable document. So, for the proper appreciation of Ex.P.2 it is just and necessary for reproduction of the recitals which appeared in the Ex.P.2 which reads like this:
NOW THIS ADDENDUM WITNESSETH AS
FOLLOWS:-
1. That the vendors agree and undertaken that they shall execute and register the sale deed in respect of the schedule property after completion of the construction of entire apartment building with all the amenities 31 O.S.No.5559/2016 within a maximum period of eleven months from today and as such the time stipulated in the agreement to sell dated 12.07.2012 is hereby extended for another period of eleven months from 24.03.2015. That the vendors without fail comply all the terms stipulated under the agreement to sell dated 12.07.2012 and complete the sale transaction.
2. That the parties agree that all the terms agreed under the agreement to sell dated 12.07.2012 are binding on the parties and this addendum is to be read along with the agreement to sell dated 12.07.2012.
3. That the vendor confirms that the purchaser is ready and willing to perform his part of contract, i.e., he is ready and willing to pay the remaining balance sale consideration to the vendor, but the vendor for his personal reasons could not complete the construction of entire apartment building with all the amenities and complete the sale transaction.
The above recitals which appeared in Ex.P.2 is very much clear that the defendant No.1 and 2 were not only admitted execution of registered agreement of sale dated 12.07.2012 but also admitted about receipt of the advance sale consideration amount as well as readiness and willingness of the plaintiff and for extension of another period of 11 months from 24.03.2015. So if the averments which appeared in Ex.P.2 are taken into consideration which comes under Sec.18 of Indian Registration 32 O.S.No.5559/2016 Act, therefore, it is option of the plaintiff for registration of Ex.P.2 merely on the ground that the Ex.P.2 is not registered as per Sec.17 of the Indian Registration Act, it will not effect the right of the plaintiff, since it is option of the plaintiff, in view of Sec.18 of the Indian Registration Act, therefore the arguments which advanced by the learned counsel for the defendant No.3 on this aspect holds no water.
21. It is an admitted fact the plaintiff has filed the instant suit against the defendant No.1 and 2 on 01.08.2016 and pending of the suit the defendant No.3 has been impleaded as per orders on I.A.V dated 17.07.2018. So one thing is clear the plaintiff has filed the instant suit on 01.08.2016 and soon after filing of the instant suit, got obtained the exparte T.I. order against the defendant No.1 and 2 from alienating the B and C schedule properties to the 3rd parties in any manner pending disposal of the instant suit on 03.08.2016 and the plaintiff has complied the order under Order 39 Rule 3(a) of CPC on 04.08.2016. So, if the date of filing of the suit and the date of exparte TI order and the date of sale deed dated 20.09.2016 are taken into consideration, the defendant No.1 and two others were executed the sale deed in favour of the defendant No.1 pending of the suit (As per 33 O.S.No.5559/2016 Ex.P.13 marked in O.S.No.4444/2016). Thus this court drawn its attention on Sec.52 of the Transfer of Property Act which reads like this:
52. Transfer of property pending suit relating thereto.--During the 1[pendency] in any Court having authority 2[3[within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by 4[the Central Government] 5[* * *] of 6[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.
7[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.] 34 O.S.No.5559/2016 The above provision is very much clear during the pendency of the suit or proceedings any right in the immovable property directly and specifically in question cannot be transferred and pendency of the suit or proceedings shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceedings in a court of competent jurisdiction. In the instant suit, the plaintiff has presented the suit on 01.08.2016 and the sale deed was taken place pending of the suit. Therefore, one thing is clear the sale transaction was taken place in between the defendant No.1 to 3 pending of the suit. Therefore, Sec.52 of the T.P. Act is applicable to the case on hand. On this aspect, the learned counsel for the plaintiff has drawn the court attention on the judgment of Hon'ble High Court of Punjab and Haryana reported in AIR 2010 P & H 40 in between Praveen Kumar & Ors. Vs Smt. Baljinder Kaur & Ors. On perusal of the said judgment, in the said judgment his Lordship held that purchasing of the property during the pendency of the litigation, transfer would be hit by doctrine of lispendens. So, suit for specific performance decreed in favour of prior purchaser, proper. In the instant case also the plaintiff has purchased the suit schedule properties under a registered agreement of sale much prior to the sale deed of defendant No.3. Therefore, the decision which relied 35 O.S.No.5559/2016 by the learned counsel for the plaintiff is applicable to the case on hand.
22. The learned counsel for the plaintiff has drawn the court attention on the judgment of Hon'ble High Court of Madras reported in AIR 1923 Madras 563 in between Babachand vs Hajee Mohammed Akbar Sahib. On perusal of the said judgment, in the said judgment his Lordship held that by virtue of Sec.3 of Transfer of Property Act, possession of land by 3 rd party is constructive notice by his rights thereon and the appellant had the notice regarding the document marked as Ex.P.3 and P.4 from the 1 st defendant for which the appellant admitted about the existence of Ex.P.3, thereby the appellant being the purchaser in good faith had the notice of the contract, thereby the appeal which filed is came to be dismissed. In the instant case also the agreement of sale was came to be registered much earlier to the sale deed which alleged to have been taken place in between the defendant No.1 and two others with the defendant No.3 and the D.W.1 in the cross-examination has categorically admitted that they have obtained the legal opinion before purchasing the schedule properties. Therefore the principles which laid down in the above decision is applicable to the case on hand.
36 O.S.No.5559/2016
23. The learned counsel for the plaintiff while canvassing his arguments has rightly submitted the alleged sale deed which alleged to have been taken place on 20.09.2016 and the registered agreement of sale was taken place on 12.07.2012 and the suit has been filed on 01.08.2016. So, the transaction was taken place pending of the suit and the said counsel has drawn the court attention on the judgment of the Hon'ble Supreme Court which reported in 2008 (5) SCC 796 in between Guruswamy Nadar Vs P. Lakshmi Ammal (D) through LR's & Ors and the judgment of Hon'ble High Court of Karnataka reported in ILR 2010 Kar. 629 in between Smt. Nancy Pias Vs S. Surendra & Anr. On perusal of the said judgments, in the said judgments their Lordship held that party who purchased the property after the suit will not get a good title and the purchase of the property pendent lite is not entitled any protection under Sec.19 of Specific Relief Act nor entitled to plead as bonafide purchaser for value without notice of the litigation. In the instant case also, pending of the suit that too after obtaining the exparte T.I. order, the sale transaction was taken place in between the defendant No.1 and two others with the defendant No.3. Therefore, the above decisions are applicable to case on hand.
37 O.S.No.5559/2016
24. It is admitted fact Ex.P.1 is the registered agreement to sell which taken place on 12.07.2012 in between the plaintiff and the defendant No.1 and 2 and the defendant No.1 and 2 were executed the registered agreement of sell in favour of the plaintiff. Thus this court drawn its attention on Sec.3 of the Transfer of Property Act which reads like this:
3. Interpretation clause.--In this Act, unless there is something repugnant in the subject or context,-- "immoveable property" does not include standing timber, growing crops or grass; ''instrument" means a non-testamentary instrument; 1["attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary;] "registered" means registered in 2[3[any part of the territories] to which this Act extends] under the law4 for the time being in force regulating the registration of documents; "attached to the earth" means--
(a) rooted in the earth, as in the case of trees and shrubs;38 O.S.No.5559/2016
(b) imbedded in the earth, as in the case of walls or buildings; or
(c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached; 5["actionable claim" means a claim to any debt, other than a debt secured by mortgage of immoveable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent;] 6["a person is said to have notice" of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.
Explanation I.--Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub- Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated:] Provided that--
(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act. Explanation II.--Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of 39 O.S.No.5559/2016 the title, if any, of any person who is for the time being in actual possession thereof. Explanation III.
--A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material: Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.
The above provision is very much clear a person is said to have a notice of a fact when he actually knows that fact or when but for willful absentation from an enquiry or such which he ought to have made or gross negligence, he would have known it. Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument any person acquiring such property or any part of or share or interest in such property shall be deemed to have a notice of such instrument, as from the date of registration.
25. In the instant case, the D.W.1 in his cross-examination has categorically admitted that they have obtained the legal opinion from the legal team to purchase B and C schedule properties. So one thing is clear the agreement to sell was got registered on 12.07.2012 and the sale deed was said to have been executed by the defendant No.1 and two others in favour of the defendant No.3 was got registered on 20.09.2016 which is 40 O.S.No.5559/2016 clear that the sale deed was got registered subsequent to the registered agreement of sale. Therefore, the provision which referred above is very much clear that the defendant No.3 had knowledge of the registered agreement of sell which executed by the defendant No.1 and 2 in favour of the plaintiff as on the date of the registered sale deed dated 20.09.2016, since the provision itself reflects that the defendant No.3 having the knowledge of the registered agreement of sale which taken place in favour of the plaintiff on 12.07.2012. Thus this court drawn its attention on Sec.19 of the Specific Relief Act which reads like this:
19. Relief against parties and persons claiming under them by subsequent title.--Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against--
a) either party thereto;
(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;
(c) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant;
(d) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation;
(e) when the promoters of a company have, 41 O.S.No.5559/2016 before its incorporation, entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company: Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract.
The above provision is very much clear any other person claiming under him by a title arising subsequently to the contract except a transferee for value who has paid his money in good faith and without notice of the original contract. Thus the above provision is very much clear the specific performance of the contract may also enforced against the subsequent purchaser. In the instant case, the defendant No.3 is well aware that the registered agreement of sale was got registered under Sec.17 of the Indian Registration Act, has purchased the very property from the defendant No.1 and two others under a registered sale deed dated 20.09.2016 subsequent to the registered agreement of sale. Therefore, the specific performance not only enforce against the defendant No.1 and 2 but also can enforce against the defendant No.3 in view of the provision which cited supra. So one thing is clear from the provisions which referred above, the alleged sale deed dated 20.09.2016 was alleged to have been taken place pending of the suit and when the T.I. order was in 42 O.S.No.5559/2016 existence and the defendant No.3 having knowledge about the registered agreement of sale got created the sale deed dated 20.09.2016. Therefore, no right has been accrued to the defendant No.3 by virtue of the provisions which referred above knowing fully well the registered agreement of sale is already existence in respect of the property in between the plaintiff and the defendant No.1 and 2.
26. It is an admitted fact the plaintiff got obtained the exparte T.I. order on 03.08.2016 and complied the said order on 04.08.2016 and the alleged sale deed was taken place on 20.09.2016. Thus this court drawn its attention on Sec.55 of the Transfer of Property Act which reads like this:
55. Rights and liabilities of buyer and seller.--In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold:--
(1) The seller is bound--
(a) to disclose to the buyer any material defect in the property 1[or in the seller's title thereto] of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover;
(b) to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller's possession or power;
(c) to answer to the best of his information all 43 O.S.No.5559/2016 relevant questions put to him by the buyer in respect to the property or the title thereto;
(d) on payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place;
(e) between the date of the contract of sale and the delivery of the property, to take as much care of the property and all documents of title relating thereto which are in his possession as an owner of ordinary prudence would take of such property and documents;
(f) to give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits;
(g) to pay all public charges and rent accrued due in respect of the property up to the date of the sale, the interest on all encumbrances on such property due on such date, and, except where the property is sold subject to encumbrances, to discharge all encumbrances on the property then existing.
The above provision is very much clear about the rights and liabilities of the buyer and seller and the seller is bound to disclose any material defect in the property or in the seller's title thereto of which the seller is and the buyer is not aware and which the buyer could not with ordinary care discover and to produce all the materials for examination by the purchaser in respect of documents of title relating to the property and to give answer all the queries which made by the purchaser. But in the instant suit, though the defendant No.1 and 2 and the defendant No.3 were having the knowledge about the registered agreement 44 O.S.No.5559/2016 of sale which already taken place in between the defendant No.1 and 2 and the plaintiff were created the sale deed in favour of the defendant No.3 to defeat the right of the plaintiff over the schedule properties. So by virtue of the provision which referred above, the defendant No.1 and 3 were intentionally have not disclosed nor discharged their obligations. Therefore, the provision which cited supra is applicable to the case on hand. 45 O.S.No.5559/2016
27. It is an admitted fact the defendant No.3 in the written statement has taken up the contention, the plaintiff is not entitled the specific performance based on the agreement of sale, since the defendant No.1 and 2 have approached for financial support, accordingly extended the financial support to the defendant No.1 and 2 after getting the entire documents from the defendant No.1 and 2 and the defendant No.1 and 2 parted the title deeds and same was forwarded to legal team and after the opinion, enlarged the loan facilities and released the amount by mortgaging the immovable properties of the defendant No.1 and 2, but in the entire written statement nowhere stated the sale deed was taken place in between the defendant No.1 and two others with the defendant No.3 on 20.09.2016 without the notice of earlier registered agreement of sale and who is the bonafide purchaser without the notice. If that is so, the matter would have been different, then the burden lies on the defendant No.3 to prove that who is the bonafide purchaser without the notice. But it is not the case of defendant No.3 that who is the bonafide purchaser without the notice of the registered agreement of sale which alleged to have been taken place in between the plaintiff and the defendant No.1 and 2, if that is so the matter would have different, but except the pleading which referred above nothing is 46 O.S.No.5559/2016 pleaded by the defendant No.3 in its written statement that who is the bonafide purchaser under the registered sale deed dated 20.09.2016 without the notice of the registered agreement of sale dated 12.07.2012. Therefore, question of declaring the defendant No.3 as bonafide purchaser of the schedule properties does not arise, since the defendant No.3 has not at all pleaded not taken any defence that who is the bonafide purchaser of the schedule properties without the notice by virtue of the sale deed dated 20.09.2016.
28. It is an admitted fact the defendant No.3 except the production of mortgage deed nothing is placed about the alleged sale deed dated 20.09.2016 which alleged to have been taken place in between the defendant No.1 and two others with the defendant No.3 on 20.09.2016. But whereas the plaintiff has produced the certified copy of the sale deed which alleged to have been taken place in between the defendant No.1 and two others with the defendant No.3 on 20.09.2016 in O.S.No.4444/2016 marked as Ex.P.13. So one thing is clear the defendant No.3 is not the bonafide purchaser of the schedule properties. Otherwise he would have taken up the said contention in the written statement. In the absence of the pleadings nor the 47 O.S.No.5559/2016 evidence, question of consider the defendant No.3 as the bonafide purchaser without the notice of registered agreement of sale dated 12.07.2012 does not arise.
29. It is an admitted fact the D.W.1 during his cross- examination has categorically admitted that there is no reference in the Ex.P.13 (marked in O.S.No.4444/2016) regarding the general body meeting nor the resolution of defendant No.3 to purchase the schedule properties and whenever the property has been purchased in the name of the defendant No.3, they use to conduct the general body meeting and resolution, but the reasons best known to the defendant No.3 has not put forth any of the document to show either general body meeting nor the resolution to show that the schedule properties have been purchased in the name of defendant No.3 and the D.W.1 in the cross-examination itself has categorically admitted that they have no hurdles if the defendant No.1 and 2 were paid our amount and to execute the sale deed in favour of the plaintiff. So for the proper appreciation of the admission which admitted by the D.W.1 during his cross-examination is necessary for reproduction which reads like this;
'we have no hurdles if the defendant No.1 and 2 were paid our amount and to 48 O.S.No.5559/2016 execute the sale deed in favour of the plaintiff.' 49 O.S.No.5559/2016 So, if the admission of D.W.1 is taken into consideration, it is clear that the defendant No.3 has no objection to execute the sale deed in favour of the plaintiff, subject to payment of the amount by the defendant No.1 and 2 in favour of the defendant No.3 which they have received from defendant No.3 and the counsel who appeared on behalf of the plaintiff has also suggested that the defendant No.3 is not the bonafide purchaser of the schedule property for which the D.W.1 has answered since the defendant No.1 and 2 were not paid the amount thereby they got the sale deed from defendant No.1 and 2 for the money of the defendant No.3 to protect the interest of the members of defendant No.3. So, one thing is clear that the defendant No.3 is not a bonafide purchaser. Only they have created the sale deed to protect the interest of the defendant No.3 in respect of the amount which availed by the defendant No.1 and 2 from the defendant No.3. The P.W.1 in his evidence has clearly stated that the defendant No.1 and 2 were executed registered agreement to sell dated 12.07.2012 and also executed addendum of the agreement on 24.03.2015 though the learned counsel for the defendant No.3 has cross-examined P.W.1 nothing is elicited to disbelieve his evidence and moreover the defendant No.3 in the written statement in para No.4 has clearly stated the facts which 50 O.S.No.5559/2016 pleaded in para 3 of the plaint is not its relating facts and he has also stated in para 5 of the written statement that he has not aware of the facts which pleaded in para 6 to 10 of the plaint.
30. Now the question arises the facts which pleaded in the plaint para 2 is not relating to the defendant No.3 nor stated that he has not aware the para 6 to 10 of the plaint is amount to specific denial in view of the order 8 Rule 5 of CPC. Thus this court drawn its attention on Order 8 Rule 5 of CPC which reads like this:
5. Specific denial.
(1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:
Provided that the Court may in it discretion require any fact so admitted to be proved otherwise than by such admission.
FOR COMMERCIAL COURTS-
"Provided further that every allegation of fact in the plaint, if not denied in the manner provided under Rule 3A of this Order, shall be taken to be admitted except as against a person under disability."
(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts 51 O.S.No.5559/2016 contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.
The above provision is very much clear every allegation of the fact in the plaint if not denied specifically or by necessary implication are stated to be not admitted in the pleading of the defendant shall be taken to be admitted except as against a person under disability and it is not the case of the defendant No.3 that who is disabled, if that is so the matter would have been different. Therefore, when the defendant No.3 has not denied the plaint averments in view of the provision which stated supra, it is clear that the defendant No.3 has admitted the facts which pleaded in the plaint.
52 O.S.No.5559/2016
31. The learned counsel for the plaintiff while canvassing his arguments has submitted the plaintiff has paid major amount to the defendant No.1 and 2 at the time of execution of registered agreement of sale, there is a meagre balance which payable by the plaintiff at the time of execution of registered sale deed, thereby the plaintiff has requested the defendant No.1 and 2 to receive the balance sale consideration amount and to execute the registered sale deed, but the defendant No.1 and 2 did not come forward to execute the registered sale deed, though the plaintiff was always ready and willing to perform his part of the contract and the said counsel has drawn the court attention on the judgment of Hon'ble Supreme Court and the judgment of Hon'ble High Court of Karnataka, reported in AIR 2000 SC 2408 in between Motilal Jain Vs Smt. Ramdasi Devi & Ors., AIR 2017 SC 1236 in between A. Kanthamani Vs Nasreen Ahmed, AIR 2005 SCC 3503 in between Aniglase Yohannan Vs Ramlatha & Ors., and 2015 (3) KCCR 2817 in between V.P. Venkatesh Vs G. Padmavathi. On careful perusal of the said decisions, in the said decisions their Lordship held that the defendant has been received almost major amount and there is less balance out of the sale consideration, it shows the readiness and willingness of the person, who purchased the property under the agreement of sale. In the instant case also the plaintiff has paid major amount and there is a less balance and 53 O.S.No.5559/2016 the pleading of the plaintiff and the evidence of P.W.1 are taken into consideration that the plaintiff has complied under Sec.16(c) of the Specific Relief Act as the plaintiff not only pleaded but also proved about his readiness and willingness to perform his part of the contract. Therefore, the decisions which relied are applicable to the case on hand.
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32. It is an admitted fact the defendant No.1 and 2 were filed their written statement, but they did not cross-examined the P.W.1 nor led the evidence. Though they have taken up the contention in their written statement by admitting the agreement of sale which alleged to have been taken place in between the plaintiff and the defendant No.1 and 2 on 12.07.2012, but they were stated it is only for collateral purpose for the payment of advance amount of Rs.5,00,000/- but on careful perusal of Ex.P.1 it nowhere reflects that the registered agreement of sale was taken place on 12.07.2012 in between the plaintiff and the defendant No.1 and 2 is for the collateral purpose, but for which they did not placed either oral and documentary evidence to disbelieve the plaintiff evidence. So, one thing is clear from the oral and documentary evidence which placed on record that the plaintiff has proved his case through oral and documentary evidence that the defendant No.1 and 2 were executed registered agreement of sale dated 12.07.2012 and they have also executed addendum to the agreement on 24.03.2015, but in spite of repeated request and demand, they did not come forward either to receive the balance sale consideration amount nor to execute the registered sale deed in favour of the plaintiff and he has also established that he has always ready and willing to perform his 55 O.S.No.5559/2016 part of the contract, but the defendant No.1 and 2 were failed to discharge their obligation in pursuance of the registered agreement of sale and addendum to the agreement to sell. Hence, I am of the opinion that the issue No.1 to 3 are answered as affirmative.
33. ISSUE NO.4 AND 5: These issues are inter-related to each other, hence in order to avoid repetition of facts and materials on record, these issues are discussed together. The defendant No.1 and 2 were appeared through their respective counsel and filed their written statement in which they took up the contention the registered agreement of sale is only for security purpose which executed by the defendant No.1 and 2 since the plaintiff had agreed to pay a total sum of Rs.50,00,000/- on 5 installments, accordingly paid a sum of Rs.5,00,000/- by way of cash as 1st installment and insisted to execute the documents for which entered the said agreement of sale for the security purpose and the defendants in the written statement itself they have also pleaded that they have entered the agreement of sale with the plaintiff only for collateral purpose for the payment of advance amount and they have already returned the amount which received from the plaintiff, though the plaintiff has agreed 56 O.S.No.5559/2016 to cancel the agreement of sale, instead of cancellation has filed the instant false suit against them.
34. It is an admitted fact the plaintiff has approached the court and sought for the relief of specific performance based on the registered agreement of sale dated 12.07.2012 and addendum to the agreement to sell dated 24.03.2015 and he has discharged the initial burden in view of Sec.101 of the Indian Evidence Act. Now the question arises who has to prove the defence which taken in the written statement is either the plaintiff or the defendant. Thus this court drawn its attention on Sec.102 of Indian Evidence Act which reads like this:
102. On whom burden of proof lies.--The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Illustrations
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore the burden of proof is on A.
(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies.
If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B. 57 O.S.No.5559/2016 The above provision is very much clear the burden of proof in a suit or proceeding lies on that person, who would fail if no evidence at all were given on either side and illustration B is very much clear that A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side A would succeed as the bond is not disputed and the fraud is not proved. Therefore, the burden of proof is on the B.
35. In the instant case, the defendant No.1 and 2 were not disputed about the registered agreement of sale dated 12.07.2012 which executed in favour of the plaintiff, but they were taken up the contention that the said document has been executed only for the purpose of security and collateral purpose, but the recitals which appeared in the Ex.P.1 nowhere reflects that the defendant No.1 and 2 were executed the Ex.P.1 in favour of the plaintiff either security purpose nor collateral purpose and the defendant No.1 and 2 were failed to discharge their burden in view of the defence which taken in their written statement. So, by virtue of the provision which referred above, the burden lies on the defendants to establish their defence when the plaintiff has discharged his initial burden in view of Sec.101 of the Indian 58 O.S.No.5559/2016 Evidence Act, but the defendant No.1 and 2 were failed to establish their defence through oral and documentary evidence.
36. Now the question arises mere taking the defence in the written statement without entering the witness box nor offering for cross-examination of other side is sufficient to held the defendants were proved their case. Thus this court drawn its attention on the judgment of the Hon'ble Supreme Court of India which reported in AIR 1999 SC 1441 in between Vidhyadhar Vs Manak Rao & Anr. In the said judgment, their Lordship held that where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross- examined by the other side, a presumption would arise that the case set up by him is not correct.
37. In the instant case also, except filing of the written statement, the defendant No.1 and 2 were not cross-examined the P.W.1 nor led their evidence or entered the witness box nor offer for their cross-examination. That is the reason why their lordship in the above said decision held if the defendants were not entered the witness box nor offer the cross-examination of the other side, the court can draw adverse inference against the defendants that the case which set up by the defendants is not 59 O.S.No.5559/2016 correct. Therefore, the above decision is directly applicable to the case on hand and the defendants were utterly failed to prove that as per the registered sale agreement dated 12.07.2012 received only Rs.5,00,000/- out of Rs.50,00,000/- and they have already paid the said amount to the plaintiff, but the plaintiff instead of cancelling the registered agreement of sale has filed the false suit against them. On the other hand, the plaintiff has proved his case through oral and documentary evidence.
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38. It is an admitted fact initially the plaintiff has filed the instant suit against the defendant No.1 and 2, later on the defendant No.3 has been impleaded on the ground the defendant No.1 to 3 were colluding with each other have created sale deed dated 20.09.2016. Admittedly, the registered agreement of sale was taken place on 12.07.2012 and the sale deed of the defendant No.3 was taken place on 20.09.2016 that is subsequent to the registered agreement of sale and the defendant No.3 in the written statement nowhere taken of the contention regarding the registered sale deed nor taken up any contention that the defendant No.3 is a bonafide purchaser. Thus this court drawn its attention on the judgment of Hon'ble High court of Karnataka which passed in RFA No.458/1999 c/w 458/1999 in between Vijayalakshmi vs R.V. Ramana and another dated 01.03.2002. In the said judgment, the plaintiff in O.S.No.1775/1991 namely Sharadamma had filed the suit for specific performance of the agreement dated 15.09.1981 said to have been executed by the 1st defendant R.V. Ramana in respect of the site bearing No.350, situated at 6th Block, Koramangala Extension, Bangalore and the 2nd defendant is one Vijayalakshmi who is the plaintiff in O.S.No.1758/1991 and the plaintiff in O.S.No.1775/1991 though she was ready and willing to perform her part of the contract, the 61 O.S.No.5559/2016 said R.V. Ramana did not come forward to execute the sale deed, instead the said Ramana and Vijayalakshmi with the help of one Prithviraj who is the husband of Vijayalakshmi were trying to disposes the plaintiff from the said property, thereby complaint has been lodged. Later on filed the suit for specific performance of the contract based on the agreement of sale and whereas the Vijayalakshmi has taken up the contention being the plaintiff in O.S.No.1758/1991 has purchased the said property under the registered sale deed dated 23.08.1985. So after full-fledged trial, the suit which filed by the Sharadamma for specific performance of contract was came to be decreed and the suit in O.S.No.1758/1991 which filed by one Vijayalakshmi was came to be dismissed on the ground that the registered sale deed was taken place subsequent to the agreement of sale of Sharadmma, thereby feeling aggrieved by the said judgment, the very plaintiff in O.S.No.1758/1991 namely Vijayalakshmi has filed the RFA No.457 c/w 458/1999 and both appeals were came to be dismissed. In the said judgment, both the defendants have been directed to execute the sale deed in favour of the plaintiff. 62 O.S.No.5559/2016
39. In the instant case also the registered sale deed alleged to have been executed by the defendant No.1 and two others in favour of the defendant No.3 on 20.09.2016 i.e., subsequent to registered agreement of sale which executed by the defendant No.1 and 2 in favour of the plaintiff. So the sale deed which taken place in between the defendant No.1 and two others with the defendant No.3 is subsequent to the registered agreement of sale dated 12.07.2012 and no right has been accrued to the defendant No.3 by virtue of that document over the suit schedule properties. When there is a registered agreement of sale in favour of the plaintiff in respect of the suit schedule properties which was in existence as on the date of alleged sale deed dated 20.09.2016. It is an admitted fact that the plaintiff in the plaint itself has clearly stated the defendant No.1 and 2 colluding with the defendant No.3 were created the sale deed dated 20.09.2016, thus either deposit of title deeds i.e., mortgage deed nor the sale deed which alleged to have been taken place in between the defendants are not binding on him as those documents are taken place subsequent to the registered agreement of sale dated 12.07.2012 and the defendant No.3 in the written statement nowhere taken up the contention that who is the bonafide purchaser without the notice. Thus this court 63 O.S.No.5559/2016 drawn its attention on the judgment of Hon'ble Supreme Court of India passed dated 18.07.2000 in between R.K. Mohammed Ubaidullah & Ors. Vs Hajee C. Abdul Wahab (D) & Ors. In the said judgment the unsuccessful defendants No.2 to 4 in both the courts below in a suit for specific performance are the appellants who taken up the contention that they had purchased the suit property under registered sale deed dated 09.11.1971. Admittedly in the very suit, the plaintiff has taken up the contention that the agreement of sale was taken place on 27.07.1971. So both the courts were considered the subsequent sale deed held, the defendant No.2 to 5 are not the bonafide purchasers, without the notice and the same has been challenged before the Hon'ble Supreme Court and the said appeal came to be dismissed and held the defendant No.2 to 5 were not the bonafide purchasers for value without prior notice of the original contract and that they were require to make enquiry as to the nature of possession or title or further interest if any of the plaintiff over the suit property at the time when they entered into sale transaction. In the instant case also the registered agreement of sale was taken place on 12.07.2012, but the defendant No.3 has not at all stated in the written statement nor in the evidence that they are the bonafide purchasers without 64 O.S.No.5559/2016 notice in spite of due enquiry, they did not come to their notice about the registered agreement of sale dated 12.07.2012. If that is so the matter would have been different. Therefore, the principles which laid down in the above said judgment is applicable to the case on hand. So the defendant No.1 and 2 were utterly failed to prove their case through oral and documentary evidence. Hence, I am of the opinion that the issue No.4 and 5 are answered as Negative.
40. ISSUE NO.6: The plaintiff has filed the instant suit against the defendants based on the registered agreement of sale dated 12.07.2012 and the addendum to the agreement to sell dated 24.03.2015 and he has proved his case through oral and documentary evidence that the defendant No.1 and 2 have executed registered agreement of sale in respect of the schedule properties and also executed addendum agreement to the registered agreement of sale, but they did not come forward to execute the registered sale deed nor receive the balance sale consideration amount, though he was always ready and willing to perform his part of the contract, but the defendants No.1 and 2 did not come forward to discharge their obligation in spite of execution of addendum to the agreement to sell nor after completion of the construction, though the defendant No.1 and 2 65 O.S.No.5559/2016 were taken up the contention which is contrary to the documentary evidence, but they did not establish their case through oral and documentary evidence, though the defendant No.3 has filed the written statement examined its CEO as D.W.1 nothing is established to disbelieve the case of the plaintiff. So one thing is clear the defendant No.1 to 3 were utterly failed to prove their defence through oral and documentary evidence. 66 O.S.No.5559/2016
41. On the other hand, the plaintiff has proved his case through oral and documentary evidence, though there is deposit of title deed i.e. mortgage deed and the sale deed dated 20.09.2016, those documents are not binding on the plaintiff, if at all any amount has been paid by the defendant No.3 to the defendant No.1 and 2, the defendant No.1 and 2 are alone liable to pay the said amount to the defendant No.3 not the plaintiff which are not binding on him, since the plaintiff is not the party to the mortgage deed nor the sale deed dated 20.09.2016 and the defendant No.3 is also liable to execute the registered sale deed along with the defendant No.1 and 2 in view of the judgments which referred above, as the defendant No.3 is claiming the title and right over the schedule properties as subsequent purchaser when the registered agreement was in existence as on the date of registered sale deed. Hence, I am of the opinion that the Issue No.6 is answered as Affirmative.
42. ISSUE NO.7: So, in view of my findings to Issue No.1 to 6 as stated above, I proceed to pass the following; 67 O.S.No.5559/2016
ORDER The suit of the plaintiff is decreed with cost. The defendants are hereby directed to execute the registered sale deed in respect of the schedule B and C properties in favour of the plaintiff by receiving the balance sale consideration amount of Rs.2,00,000/- within two months from the date of this order. In failure of which the plaintiff is at liberty to take legal steps.
Draw decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected by me and then pronounced in the open court on this the 28th day of September, 2021) (P.J. Somashekara) LXXXVIII Addl. City Civil & Sessions Judge, (Exclusive Commercial Court), Bengaluru City ANNEXURE List of witnesses examined on behalf of plaintiff:
P.W.1 Sri. G. Lakshmi Narayana Reddy List of witnesses examined on behalf of defendant:
Nil List of documents exhibited on behalf of plaintiff:
Ex.P.1 Registered sale agreement
Ex.P.2 Addendum to sale agreement
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Ex.P.3 Legal notice
Ex.P.4 to 6 3 Postal receipts
Ex.P.7 Postal acknowledgment
Ex.P.8 & P.9 2 returned covers with acknowledgments List of witnesses examined on behalf of defendant:
D.W.1 Sri. Y.N. Venugopal Reddy List of documents exhibited on behalf of defendant:
Ex.D.1 Certified copy of deposit of title deed (P.J. Somashekara) LXXXVIII Addl. City Civil & Sessions Judge, (Exclusive Commercial Court), Bengaluru City