Bangalore District Court
Sri. Vinod.M vs Sri. K.V.Srikanth on 29 January, 2016
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
Dated this the 29th day of January 2016.
PRESENT: S.V.KULKARNI, B.Com., LLB(Spl)
XI Addl.City Civil Judge, B'lore city.
O.S.No.7688 of 2003
C.C.H.8
Plaintiff/s: Sri. Vinod.M,
S/O Late Sri.Mohanlal,
aged about 30 years,
residing at No.207, III Cross,
Chikkanna garden,
Shankarapuram,
Bengaluru-4
(By Sri.Surana.P.D advocate)
Vs.
Defendant/s: 1. Sri. K.V.Srikanth,
aged about 43 years,
2. Sri. K.V.Manunath,
aged about 41 years,
Both are sons of Sri. K.H.Vishwanath,
residing at Sri. Venkateshwara Complex,
No.52, A.M.Lane, B.V.K.Iyengar Road
Cross, Chickpet, Bengaluru-53
(By Advocate Sri. J.V )
Date of the institution of suit: 25.10.2003
Nature of the suit: Specific performance
2 OS. No.7688 of 2003
Date of the commencement of 24.3.2007
recording of the evidence :
Date on which the judgment 29.1.2016
was pronounced :
Total duration: Year/s Month/s Day/s
12 03 04
XI Addl.City Civil Judge,
B'lore city.
JUDGMENT
This is a suit filed by the plaintiff against defendant No.1 and 2 seeking the relief of specific performance of contract in respect of registered sale agreement dated:
26/10/1998 executed by defendant No.1 and 2 in favour of plaintiff in respect of suit schedule property and also alleged tripartite agreement dated: 28/10/1998 executed by the defendants, plaintiff and one C.Ashok Kumar, has prayed for relief of specific performance of contract and for such other consequential reliefs as prayed in the suit.
2. The case of the plaintiff as stated in the plaint averments briefly stated as follows:-
Defendants No.1 and 2 herein are the owners of immoveable property bearing No. 52, situated at Venkateshwara Complex, A.M.Lane, B.V.K Iyengar road, Bengaluru morefully described in the schedule annexed to the 3 OS. No.7688 of 2003 plaint and this property hereinafter referred to as suit schedule property. It is the case of the plaintiff that defendant No.1 and 2 have offered to sell the suit schedule property in his favour for a total sale consideration amount of Rs.18,00,000/- wherein the plaintiff in pursuance of the said officer, he has given his acceptance and accordingly, defendants have executed an agreement of sale in favour of plaintiff on 26/10/1998 agreeing to convey the suit schedule property to the plaintiff for a total consideration of Rs.18,00,000/- and this agreement of sale came to be registered on 27/10/1998 as document No. 1977/1998-99 before the office of Sub-Registrar, Gandhinagar, Bengaluru. The suit schedule property consists of ground, first, second and portion built in 3rd floor. There are shops in the ground floor premises and one of the shop is occupied by plaintiff and plaintiff is running his business. Similarly, plaintiff's brother Mr. Mahaveer is also carrying business in one of the shop in the ground floor of the suit schedule property under the name and style M/s Mohan Industrial Suppliers. The defendants agreed that they will take all necessary steps to get possession of the tenements which are in occupation of the tenants existed in the ground floor and they will vacate the premises and thereafter executed the sale deed in favour of plaintiff and further alleged that procuring of possession from the tenants is taking time and it is time consuming process and take into account 4 OS. No.7688 of 2003 the said factor, 5 years time was stipulated in the agreement of sale for acquisition of contract for execution of sale deed and defendants also required to obtain income tax clear certificate as it is required to facilitate the registration of sale deed and defendants have also agreed to supply the original title deeds and document pertaining to the suit schedule property to the plaintiff and it was agreed that registration expenses and stamp duty are payable on the sale deed is to be borne by the plaintiff and defendants were required to clear all the arrears of tax and they agreed to pay upto date tax in respect of suit schedule property. Though defendants have agreed to perform their part of the contract and executed sale agreement. But, defendants did not have made any efforts to obtain possession from the tenants who are in occupation of the suit schedule property and to obtain income tax clearance certificate to enable the registration of the sale deed in respect of suit schedule property. But, the defendants did not made any efforts in the matter of complying these obligations which were required to be performed. The defendants No.1 and 2 have received sum of Rs.1,00,000/- through cheque bearing No.646325 dated:
26/10/1998 issued by the plaintiff encashable from the account of his proprietary concern M/s Mohan Electricals drawn on Amanath Co-operative Bank Ltd., B.V.K. Iyengar Road, Bengaluru on the date of execution of sale agreement and defendants have encashed the said cheque issued by the 5 OS. No.7688 of 2003 plaintiff and thereafter defendants have further received sum of Rs.1,00,000/- through a cheque dated: 4/12/1998 bearing No. 502894 drawn on Amanath Co-operative Bank Ltd., B.V.K. Iyengar Road, Bengaluru and it is also encashed by the defendants. It is the case of the plaintiff that defendants have borrowed a sum of Rs.7,00,000/- from one Sri. C. Ashok Kumar and executed On demand Promissory Notes in favour of the said Sri. C. Ashok Kumar and these On Demand Promissory notes executed by the defendants in favour of Sri. C. Ashok Kumar for Rs.4,00,000/- dated: 15/7/1998 and for Rs.3,00,000/- dated: 9/8/1998 and that towards repayment of principal sum and amount of interest at Rs.18% p.a. the defendants have also issued cheques in favour of Sri. C. Ashok Kumar. The defendants were required to discharge the loan amount borrowed from Sri. C. Ashok Kumar requested the plaintiff to discharge the said loans and in view of that, a tripartite agreement is entered into between the plaintiff, defendants and Sri. C. Ashok Kumar on 28/10/1998. Under this tripartite agreement plaintiff was directed by the defendants to discharge the loan by making payment to Sri. C. Ashok Kumar and the amount paid to the said Sri. C. Ashok Kumar in pursuance of the said agreement is to be treated as amounts paid to the defendants and the amounts so paid by the plaintiff to the said Creditor of the defendants is to be treated as the amounts paid by the plaintiff towards part sale consideration 6 OS. No.7688 of 2003 under the agreement of sale dated: 26/10/1998. Therefore, plaintiff was required to discharge the loan borrowed by the defendants from Sri. C. Ashok Kumar and accordingly, the plaintiff has discharged the loan by paying total sum of Rs.11,00,000/- to the said Sri. C. Ashok Kumar on behalf of defendants, wherein plaintiff has paid Rs.11,00,000/- to Sri. C. Ashok Kumar which fully discharges the principal due amount along with interest payable by the defendants. Thus, the total amount paid by the plaintiff in respect of agreement of sale dated: 26/10/1998, wherein plaintiff has paid Rs.1,00,000/- on 26/10/1998, Rs.1,00,000/- on 4/12/1998 and Rs.5,00,000/- on 5/4/2001, Rs.3,00,000/- on 28/12/2002, Rs.3,00,000/- on 17/1/2003 and said Sri. C. Ashok Kumar after having received amounts as mentioned above and the loan having been fully discharged has handed over the loan documents to the plaintiff ie., Tripartite agreement dated: 28/10/1998 entered in between plaintiff, defendants and Sri. C. Ashok Kumar. Two On demand Promissory notes and two cheques issued by the defendants drawn on Amanath Co-operative Bank Ltd., B.V.K. Iyengar Road, Bengaluru for Rs.4,24,000/- dated: 15/11/1998 and another cheque for Rs.3,18,000/- dated: 9/12/1998 drawn on Amanath Co-operative Bank Ltd., B.V.K. Iyengar Road, Bengaluru. Thus, the plaintiff further stated that, he has paid the total amount of Rs.13,00,000/- towards part sale consideration amount to the defendants and balance sale 7 OS. No.7688 of 2003 consideration amount of Rs.5,00,000/- was to be paid at the time of execution of sale deed. Plaintiff has pleaded his readiness and willingness to perform his part of the contract stating that he was always ready and willing to perform his part of the contract since the date of execution of agreement and he requested the defendants to obtain registration of sale deed at his cost. But, the defendants went on postponing the completion of sale transaction and finally defendants did not take any steps to evict the tenants and also not made efforts to obtain the income tax clearance certificate and plaintiff wanted to pay entire balance sale consideration amount and to proceed with the registration of sale deed. But, defendants and their creditor Sri. C. Ashok Kumar wanted that his loan amount should be cleared and therefore, loan borrowed by defendants was cleared by the plaintiff by paying amount to the creditor Sri. C. Ashok Kumar. Inspite of repeated requests and demands, the defendants have not executed sale deed in favour of plaintiff and defendants have not come forward to execute sale deed. Though plaintiff is ready and willing to obtain sale deed and plaintiff also ready to obtain sale deed by spending registration and stamp duty at his own cost, but, the defendants refused for the execution of sale deed by complying the terms of written contract entered into. Henc,e plaintiff alleged the cause of action one arose on 26/10/1998 as stated in para-12 of the plaint has filed this 8 OS. No.7688 of 2003 suit for specific performance against defendants and prayed to decree the suit.
3. After registration of the suit and after issuance of suit summons to both the defendants, wherein defendant No.1 and 2 have appeared through counsel and filed their written statement contending that suit filed by the plaintiff is not maintainable either in law or on facts and same is liable to be dismissed. The averments made in the plaint do not constitute sufficient grounds for the relief of specific performance of contract. Hence, suit is liable to be dismissed with costs. The suit filed by the plaintiff is with an intention to harass the defendants and hence, plaintiff has to pay compensatory cost of Rs.20,000/- as per section 35(A) of C.P.C and defendants No.1 and 2 have denied the plaint averments in toto and defendants have specifically denied the execution of registered sale agreement in favour of plaintiff registered on 27/10/1990 and defendants have also denied the averments made by the plaintiff in respect of execution of agreement dated: 26/10/1998 contending that there is no sale transaction taken place between defendants and plaintiff and hence, question of undertaking to handover the vacant possession of the other premises which are occupied by the other tenants and there is no undertaking or date is fixed for the registration of the property. The defendants also have denied the averments made in para-6 and 7 of the plaint and also denied the receipt of Rs.1,00,000/- from the plaintiff 9 OS. No.7688 of 2003 towards alleged advance amount and defendants specifically contended that they have obtain loan for the purpose of improvement of electrical business running by them and also for the purpose of marriage of their sister wherein defendants approached the plaintiff and sought for financial assistance of Rs.1,00,000/- and at that time of making payment by the plaintiff, wherein plaintiff has received 5 blank cheques drawn on Amanath Co-operative Bank Ltd, Chikpet, Bengaluru as collateral security and entered into registered agreement with a condition to return the amount of Rs.1,00,000/- with interest within 5 years from the date of execution of agreement. The defendants further contended that at the time making payment of Rs.1,00,000/- plaintiff directed the defendants to execute their signatures on two cheque leaves which are belongs to plaintiff and after execution of signature by the defendants, the plaintiff himself encash the amount and paid Rs.1,00,000/- towards hand- loan transaction as claimed by the defendants and defendants submitted that at no point of time, plaintiff has paid additional amount of Rs.1,00,000/- as stated in para-7 of the plaint and hence, defendants have called upon the plaintiff to prove the payment of Rs.1,00,000/- on 26/10/1998 and payment of Rs.1,00,000/- on 4/12/1998 and defendants have also denied the averments made in para-8 to 10 and defendants contended that there is no contract existed in between himself and Sri. C. Ashok Kumar 10 OS. No.7688 of 2003 and the defendants and there is no so called tripartite agreement executed in between the parties and defendants contended that when there is no contract or transaction with Sri. C. Ashok Kumar question of making payment of plaintiff on behalf of defendants by executing tripartite agreement does not arise. Hence, defendants contended that, documents relied by the plaintiffs are created one and plaintiff has cooked up the story and filed this suit on the basis of created document. Hence, plaintiff is called upon to prove his case as pleaded in the suit. The defendants contended that they have no desire or interest to sell the property and defendants denied the averments made in para- 10 of the plaint and contended that when there is no sale agreement or sale transaction extending the time and period to execute sale deed question of execution of sale deed to the plaintiff does not arise at all and question of readiness and willingness does not arise at all.
3(a) The defendants in para-13 of the written statement contended that, they have succeeded to the suit schedule property from their grand-mother Kopi Bai through will and after acquiring the suit schedule property, the defendants have constructed ground, first, second and 3rd floor and entire ground and first floor is commercial portions let out entire portion to the tenants and shops in the passage situated in ground floor, second and 3rd floor is retained by the defendants for their residential accommodation. The 11 OS. No.7688 of 2003 plaintiff is inducted as tenant to two portions of ground floor shop in the year 1990 at the rate of monthly rent of Rs.330 and Rs.1330/- and defendants for the purpose of improvement of their electrical business run by them and also for their sister's marriage approached the plaintiff as they were in need of Rs.1,00,000/- towards financial assistance and approached for financial help, wherein plaintiff who is tenant of the defendants came forward to provide financial assistance of Rs.1,00,000/- with a condition to execute agreement of sale and to return the said amount of Rs.1,00,000/- with interest at the rate of 24% per annum and directed the defendants to execute the agreement of sale before Sub-Registrar , wherein defendants further stated that at the time of execution of sale agreement plaintiff has received two On Demand Pronote and consideration receipt along with 5 blank cheques drawn on Amanath Co-operative Bank, Bengaluru and at the time of execution of sale agreement, plaintiff himself drawn the amount from the bank of Rs.1,00,000/- by getting signature of defendants on this cheque and defendants contended that after receipt of Rs.1,00,000/- from the plaintiff, wherein defendants have undertaken to return the said amount of Rs.1,00,000/- along with interest within 5 years and on that condition, plaintiff has paid rent regularly towards his occupation of the shop of suit schedule property for a period of 3 years and defendants approached the plaintiff to execute agreement after receipt of 12 OS. No.7688 of 2003 entire principal amount wherein plaintiff has demanded Rs.2 ,50,000/- and when defendants directed the plaintiff to hand over vacant possession of premises which he has occupied, wherein they will clear of outstanding balance of Rs.1,00,000/- along with interest for a period of one year and instead of acceptance of the amount and cancel the agreement, the plaintiff approached this court with false ground and defendants contended that, if any sale transaction existed in between the plaintiff and defendants, wherein plaintiff would have obtained signatures or endorsement on the sale agreement on subsequent payments. Defendants further contended that there is no sale transaction one existed between them and plaintiff and defendants contended that the suit schedule property is worth Rs.50,00,000/- in the year 1998. The defendants further contended that, they will get Rs.1-1½ lakhs towards pagadi amount to the small shops in the locality and such being the position, execution of sale agreement on the basis of alleged sale transaction of Rs.18,00,000/- as per agreement of sale dated: 26/10/1998 not arise. Defendants contended that if the specific performance+ decree is passed, against them, greater hardship will be caused to the defendants. On the other hand, no hardship will be caused to the plaintiff if suit is dismissed. Hence, defendant No.1 and 2 have resisted this suit on this defence and prayed for dismissal of the suit by awarding cost.
13 OS. No.7688 of 20034. Based upon these pleadings, the following issues are framed for trial of the suit :-
1. Whether the plaintiff proves that the defendants were agreed to sell the suit schedule property for Rs.18 Lakhs and executed an agreement of sale dated:26.10.1998 by receiving an advance amount of Rs.one Lakh?
2. Whether the plaintiff proves the payment of further advance of Rs. one Lakh on 4.12.1998?
3. Whether the plaintiff proves that the defendants entered into tripartite agreement on 28.10.1998 with him and one C.Ashok Kumar agreeing to treat the loan amount of Rs.11 Lakhs paid to Sri.C.Ashok Kumar as part sale consideration of the agreement of sale dated 26.10.1998?
4. ]Whether the defendants proves that the plaintiff got executed the agreement of sale dated 26.10.1998 and received two on demand promissory note, consideration receipt along with 5 blank signed cheques drawn on Amanath Co-operative Bank as a security to the loan of Rs. One lakh?
5. Whether the plaintiff proves that he has been always been ready and willing to perform his part of contract?
6. Whether the plaintiff is entitled the relief of Specific performance of contract?
7. To what order or decree?14 OS. No.7688 of 2003
5. In order to prove the above issues, the plaintiff himself is examined as PW.1 and got marked Ex.P.1 to P.9 through his evidence and also examined another witness as P.W.2 and closed side. On the other hand, 1st defendant is examined as DW.1 and got marked one document as Ex.D.1 in his evidence. Thereafter, the suit is posted for arguments.
6. Heard the arguments of both sides and posted the suit for judgment. In support of his arguments, counsel for the plaintiff has relied upon the following citations as per memo dated:16/1/2016 and the said citations are extracted as follows:
1. AIR 2003 Madras 305(M.Ramalingam, dead by LRs Vrs V.Subramanyam, dead by LRs)
2. AIR 2002 SC 2385(A. Maria Angelena(d) and others Vrs A.G.Balkis Bee Learned counsel for defendants has relied upon the following citations in support of his arguments:
1. AIR 1977 Supreme Court 105(Fuzhakkal Kuttappur Vs. C.Bhargavi and others
2. 1996(5) SCC 589 ( Lourdu Mari David and others Vs. Louis Chinnaya Arogyaswamy and others
3. Madras High Court (M.Kantha Vs. P.Valmurthy)
4. AIR 1963 SCC 890( Ramkishorelal and another Vs. 15 OS. No.7688 of 2003 Kamalnarayan)
7. On appreciation of the pleadings filed in this suit and on appreciation of evidence of plaintiff i.e., PW.1 and 2 and documents Ex.P.1 to P.9 and that of defendant No.1 i.e., DW.1 and considering the arguments addressed by the respective counsel, I answer the above issues are as follows:-
Issue No.1: In the negative Issue No.2: In the negative Issue No.3: In the negative Issue No.4: In the affirmative Issue No.5: In the negative Issue No.6: Plaintiff is not entitled for the relief of specific performance of contract Issue No.7: Suit of the plaintiff deserves to be dismissed without any orders as to costs for the following:
REASONS
8. Issue No.1 to 5: Since these issues are interlinked with each other and evidence placed on record by the parties comprising of these interlinked issues, hence, these issues have been taken up for discussion together in order to avoid repetition of facts. However, separate findings will be recorded on theses issues.
16 OS. No.7688 of 20039. The plaintiff has filed this suit against defendants seeking the relief of specific performance of contract based upon the alleged agreement of sale(registered agreement of sale) said to have been executed by the defendants 1 and 2 in his favour dated: 26/10/1998 and plaintiff also relied upon the alleged tripartite agreement executed between himself, his relative one Sri. C. Ashok Kumar and defendant No.1 and 2 dated: 28/10/1998 in respect of alleged loan transaction existed between defendants and relative of plaintiff namely Sri. C. Ashok Kumar and plaintiff filed this suit for specific performance of contract alleging that defendants have agreed to sell the suit schedule property in his favour under Ex.P.1 and 2 and have received an amount of Rs.13,00,000/- as part sale consideration amount and plaintiff is ready and willing to perform his part of the contract by paying balance sale consideration amount of Rs.5,00,000/-. But, defendants have not performed their obligation to perform their part of the contract and as such plaintiff alleging the cause of action one arose to him to file this suit has filed this suit for specific performance relief based upon Ex.P.1 and 2 against defendant No.1 and 2 in respect of schedule premises, which is consisting of both commercial and residential property as described in the schedule of the plaint.
9. Defendant No.1 and 2 have filed combined written statement denying the execution of sale agreement, but, they contended that they have obtained loan from the plaintiff who 17 OS. No.7688 of 2003 is tenant in respect of ground floor shop premises and it is the specific case of the defendants that plaintiff in collusion with Sri. C. Ashok Kumar had obtained their signatures in loan transaction and as such Ex.P.1 and Ex.P.2 are created documents wherein defendants taken specific contention that they have raised loan of Rs.1,00,000/- from the plaintiff who is tenant under the defendants and due to acquaintance of plaintiff since long years, since his ancestors, wherein plaintiff and his brother are running electrical shop in the ground floor shop premises and as such defendants have taken specific contention that this suit brought by the plaintiff is on false and concocted set of facts to place Ex.P.1 and 2 as alleged agreement of sale tripartite agreement entered into between defendants. Hence, defendants have resisted further contending that the suit schedule property inherited by them through a will left by grand-mother of defendant No.1 and this property consisting of ground plus 3 storied building situated in prime locality of Bengaluru city and the market value of the suit schedule property as on the date of alleged document worth Rs.50,00,000/- and defendants have taken contention that they have raised loan from plaintiff of Rs.1,00,000/- for the development of their electrical business and also to meet out expenses of marriage of sister of defendants. Hence, with these defence, defendant No.1 and 2 have contested the suit.
18 OS. No.7688 of 200310. The plaintiff himself is examined in this case and has deposed by way of affidavit evidence filed as examination- in-chief and got marked documents Ex.P.1 to 9 in his oral evidence. On perusal of chief examination of P.W.1 deposed in the form of affidavit wherein P.W.1 has stated by reiterating the facts as stated in the plaint wherein P.W.1 has stated that he has paid Rs.1,00,000/- to the defendants under cheque No.646325 dawn on Amanath Co-operative Bank and he has further stated that he has paid another sum of Rs.1,00,000/- on 4/12/1998 by issuance of cheque No. 1502894 drawn on Amanath Co-operative Bank Ltd., B.V.K. Iyengar Road Branch, Bengaluru and P.W.1 also deposed regarding defendants had borrowed loan sum of Rs.7,00,000/- from Sri. C. Ashok Kumar and execution of On Demand Pronote and consideration receipt dated:
15/7/1998 for Rs.4,00,000/- and for Rs.3,00,000/- loan documents are executed on 9/8/1998 and defendants further agreed to pay interest at Rs.18% per annum on Rs.7,00,000/- and it is the case of the plaintiff that defendants have authorized the plaintiff to pay loan amount of Rs.7,00,000/- on their behalf and accordingly, plaintiff has paid loan amount and as such plaintiff contended that, he has paid Rs.2,00,000/- as advance amount(earnest money) and Rs.7,00,000/- loan amount repaid by him on behalf of defendants and further P.W.1 stated that in all he has paid an amount of Rs.11,00,000/- on different dates to Sri. C. 19 OS. No.7688 of 2003 Ashok Kumar by making payment of Rs.5,00,000/- on 5/4/2001, Rs.3,00,000/- on 20/12/2002 and Rs.3,00,000/- on 17/1/2003 to Sri. C. Ashok Kumar in full and final settlement of claim of said Sri. C. Ashok Kumar against the defendants and he has issued receipts for having received the said payment from the plaintiff and hence, P.W.1 has relied upon documents ie., registered agreement of sale and tripartite agreement and the receipts dated: 5/4/2001, 20/12/2002 and 17/3/2003 respectively and it is the case of the plaintiff that in view of settlement of loan by him Sri. C. Ashok Kumar had returned the documents ie., Promissory note dated: 15/7/1998 and another Promissory note dated:
9/8/1998 executed by the defendants in favour of Sri. C. Ashok Kumar and also cheque issued in favour of defendants for Rs.4,25,000/- in favour of Sri. C. Ashok Kumar dated: 15/11/1998 cheque bearing No.353768 of Amanath Co- operative Bank Ltd., and another cheque dated: 9/12/1998 issued by defendants in favour of Sri. C. Ashok Kumar for Rs.3,18,000/- under cheque bearing No. 3353769 of Amanath Co-operative Bank Ltd., Bengaluru and P.W.1 in his chief examination stated that there are tenants in the ground floor shop premises and one shop is in his occupation and one shop is in occupation of his brother Mahaveer and defendants have retained one shop wherein they are doing electrical business in the name of M/s Standard Electricals which is run by plaintiff's brother namely Mahaveer and 20 OS. No.7688 of 2003 whereas, defendants are running their electrical shop in the name and style M/s Srikanth Electricals and interest he first floor there are two shops and one shop is in the occupation of M/s Vishal Enterprises represented by Mohammad Ali as its Proprietor and other shops interest the first floor was occupied by M/s Electric Controls & Switch Gears and they are recently vacated and the said floor is lying vacant, second and 3rd floor portion of suit schedule property is in occupation of defendants as they are using it for their residential purpose. Hence, P.W.1 deposed that defendants have not performed their part of the contract and no steps are taken to evict the tenants from the ground floor shop premises and also not obtained Income tax clearance certificate from the concerned department and hence, p.w1 stated that he was/is ready and willing to perform his part of the contract and also ready to pay balance sale consideration amount of Rs.5,00,000/- and he has made payments to Sri. C. Ashok Kumar on behalf of defendants and the said amount paid by him is to be treated as part sale consideration amount to be paid by the plaintiff out of total sale consideration amount. Hence, P.W.1 denying the defence set up by the defendants in their written statement has prayed for grant of decree for specific performance of contract.
11. P.W.1 got marked the following documents:
Ex.P.1 Agreement of sale dated 26.10.1998
21 OS. No.7688 of 2003
Ex.P.1(a)&(b) Signatures of defendants respectively
Ex.P.2: Agreement of sale dated: 28/10/1998
Ex.P2(a)&(b) Signatures of defendants respectively
Ex.P.2© Signature of Ashok Kumar
Ex.P.3 &4 Cheques dated: 15/11/1998 and
9/12/1998 respectively
Ex.P.3(a)&(b) Signatures of defendants respectively
Ex.P.4(a)&(b) Signatures of defendants respectively
Ex.P.5 & 6 Promissory Notes dated: 15/7/1998
and 9/8/1998
Ex.P.5(a)&(b) Signatures of defendants respectively
Ex.P.6(a)&(b) Signatures of defendants respectively
Ex.P.7 to 9 Receipts
Ex.P.7(a),8(a) Signatures of Ashok Kumar
& 9a)
12. Counsel appearing for defendants cross-examined to P.W.1 on 24/1/2008. He admits that he came to the suit schedule property in the year 1986 as tenant wherein he was tenant in respect of ground floor shop premises and the said shop was measuring 300 Sq.ft and he was paying Rs.330/- as rent and he has not paid any advance amount or security deposit when he was inducted as tenant. P.W.1 further stated that after lapse of one year of his tenancy under the defendants he obtained second floor and ground floor and given to his brother Mahaveer and lease is created in the 22 OS. No.7688 of 2003 name of his brother Mahaveer in respect of that additional portion of property. P.W.1 admits that prior to his entry into the premise as tenant, wherein relationship between his father and defendants were cordial and on that count, defendants have not obtained any security deposit from them and P.W.1 denied that no premises will be available on rent in Chikpet and other adjoining places in Bengaluru and P.W.1 admits that defendants are running business in the name of Srikanth Electricals and P.W.1 also admits that in the year 1998 himself, his brother had got cordial relationship with defendants and P.W.1 admits that, there exists relationship of Land-lord and tenants. P.W.1 further admits that 2nd defendant was working in his shop. But, P.W.1 denied that due to good relationship with him, defendants have obtained loan sum of Rs.1,00,000/- for development of their business and also to perform the marriage of their sister and P.W.1 has denied that after lending loan sum of Rs.1,00,000/-, he has obtained agreement of sale and 5 blank cheques and two Promissory notes signed by defendants when loan was advanced to defendants and P.W.1 answered in the form of question and answer stating that agreeing to these terms registered agreement of sale was executed for which P.W.1 answered that registered agreement of sale was executed but, not agreeing to the above referred terms and P.W.1 denied that at the time of agreement, he has obtained original documents from the defendants in respect of property and 23 OS. No.7688 of 2003 P.W.1 admits that he is capable of reading and writing English language and he admits that the contents of Ex.P.1 at page No.3(1) are true and correct and P.W.1 in clear terms admits that defendants have obtained the amount for the development of their business and executed Ex.P.1. The said admission of P.W.1 reads as under:
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13. P.W.1 denied that amount of Rs.1,00,000/- received by defendants was to be repaid with interest within 5 years of time and P.W.1 admits that contents of Ex.P.1 clause 1 at page No.4 its contents are true and correct. P.W.1 admitted that, his friend Sri. C. Ashok Kumar is son of his senior father and Sri. C. Ashok Kumar is not a tenant in any of the portion of building belongs to defendants and he is not carrying any business in the schedule premises and P.W.1 admits that Ex.P.3 to 6 are the documents pertaining to Sri. C. Ashok Kumar and further P.W.1 admits that Ex.P.7 to 9 are the documents executed between him and Sri. C. Ashok Kumar and he further admits that Ex.P.1 to 9 show that, amount is paid to the defendants under these documents to Sri. C. Ashok Kumar and P.W.1 also admits that in Ex.P.7 to 9 there are no signatures of defendant No.1 and 2 and P.W.1 also admits that prior to execution of Ex.P.3 to 9 already agreement of sale was came to be executed between him and defendants and original agreement of sale was in his custody 24 OS. No.7688 of 2003 and P.W.1 admits that in Ex.P.1, there is no endorsement in respect of amount paid by him to Sri. C. Ashok Kumar and there is no receipt obtained in this regard in the original sale agreement and P.W.1 admits that after repayment of loan, loan documents and original documents will be retained in common and P.W.1 also stated that he has made reference in his pleadings in respect of Ex.P.3 to 9 pertaining to Sri. C. Ashok Kumar. P.W.1 denied the suggestion that himself and Sri. C. Ashok Kumar have created Ex.P.1 and 2 on the basis of documents obtained from the defendants at the time of loan transaction wherein they have given 5 blank cheques and two blank pronotes and on that basis Ex.P.3 to 9 are created by them. P.W.1 further admits that on 26/10/1998 and 4/12/1998 himself and 2nd defendant went to bank and obtained signatures of defendants on those cheques and has given payment to the defendants and P.W.1 denied that though the said cheques have been encashed in the name of defendants, but, he has paid only 1; to the defendants on that day and he denied that he has taken signature of defendants on Ex.P.2 on the foot of each page of Ex.P.2 , blank documents and has created Ex.P.2 in order to suit his convenience and P.W.1 denied that Ex.P.2 was never executed by the defendants in favour of Sri. C. Ashok Kumar.
14. P.W.1 further cross-examined on 8/9/2009 wherein he admits that Ex.P.1 and 2 are prepared by different advocates, but, he do not know the names of said advocates 25 OS. No.7688 of 2003 and he admits that on Ex.P.1 there is no signature of Sri. C. Ashok Kumar and he was not present when Ex.P.1 was prepared. P.W.1 admits that schedule premises is existed in commercial locality consisting of ground, first and second floor and 3rd floor portion together extent of half is held by defendants and P.W.1 admits that after execution of Ex.P.1, he has not got published any notice in the newspaper and he denied that schedule premises as on 26/10/1998 was worth value of Rs.50,00,000/- and P.W.1 denied that Ex.P.1 is security document for the purpose of loan obtained by the defendants and P.W.1 denied that by misusing the loan document and as he has obtained signatures of defendants on such documents, he has filed this false suit.
15. The plaintiff got examined one witness M. Babu, who is doing business at Chikpet, Bengaluru as P.W.2 in this case and P.W.2 deposed in respect of document Ex.P.2 stating that defendants, plaintiff[f and one Sri. C. Ashok Kumar have entered into agreement on 28/10/1998 for clearing the loan obtained by the defendants from Sri. C. Ashok Kumar and P.W.2 stated that this tripartite agreement was came to be executed by concerned parties in his presence and he has signed the agreement as witness. P.W.2 identified Ex.P.2 and his signature at Ex.P.2(b).
26 OS. No.7688 of 200316. Counsel for the defendants cross-examined P.W.2, wherein he admits that he is related to plaintiff as himself and plaintiff are cousin brothers and his shop premises is situated at defendant's 2nd floor and he has kept cloth business and running business from 8-30am to 8-30pm and P.W.2 stated that he do not know who has prepared Ex.P.2 and he has signed Ex.P.2 at the instigation of plaintiff and P.W.2 admits that plaintiff and defendants have not given any notice to sign Ex.P.2 as witness and P.W.2 denied that plaintiff and Sri. C. Ashok Kumar together have created Ex.P.2 and P.W.2 admits that he has no knowledge regarding loan transaction between defendants and Sri. C. Ashok Kumar and P.W. 2 stated that there was money transaction existed between P.W.2 and Sri. C. Ashok Kumar and in that respect, no document was executed in his presence and P.W.2 denied that Sri. C. Ashok Kumar has not paid any amount to defendants and P.W.2 further denied that since he is related to Sri. C. Ashok Kumar and on that reason he is deposing false evidence.
17. First defendant has given rebuttal evidence as he is examined as D.W.1 through an affidavit evidence filed under Order XVIII Rule 4 of C.P.C and on perusal of his evidence, D.W.1 stated that plaintiff is tenant under him and running business in one shop situated in ground floor in the name and style M/s Mohan Industrial supplies and there is no sale agreement executed by him in favour of plaintiff as 27 OS. No.7688 of 2003 alleged in the plaint and D.W.1 stated that he had no intention of alienation of suit schedule property and hence there is no sale agreement and sale transaction entered into and also question of execution of sale deed and handing over possession will not arise and D.W.1 stated that he has not executed any sale agreement to sell the property in favour of plaintiff and D.W.1 stated that he asked the plaintiff to finance him of Rs.1,00,000/- and at that time plaintiff has obtained 5 blank cheques of Amanath Co-operative Bank Ltd., B.V.K. Iyengar Road Branch, Bengaluru as security for the loan and also obtained registered agreement with condition to return Rs.1,00,000/- amount with interest within 5 years and D.W.1 stated that at the time of making payment of Rs.1,00,000/- plaintiff directed him to execute signature on two cheque leaves belongs to plaintiff and plaintiff himself had encashed the amount and paid Rs.1,00,000/- as hand loan and at no point of time, plaintiff has paid additional amount of Rs.1,00,000/- as alleged by the plaintiff on 4/12/1998. Hence, D.W.1 in his evidence stated that, he has acquired the suit schedule property through his grand-mother Kopi Bai under a Will and after acquiring the suit schedule property, he has constructed ground, first, second and 3rd floor and ground floor and first floor is commercial portions let out to various tenants consisting of small shop premises and in the passage situated in the ground floor, second and 3rd floor is retained by him for their 28 OS. No.7688 of 2003 residential occupation. D.W.1 also stated that, plaintiff inducted as tenant on the ground floor shops in the year 1990 on payment of initial rent of Rs.330/- and Rs.1330/- and D.W.1 stated that he has obtained loan sum of Rs.1,00,000/- and requested the plaintiff to finance him and accordingly,, he has obtained loan sum of Rs.1,00,000/- from the plaintiff for business development and also to perform marriage of his sister and as such D.W.1 denied the entire case of the plaintiff regarding Ex.P.2 and further denied the execution of other documents and also denied the alleged documents Ex.P.3 to 9 produced by the plaintiff and P.W.1 specifically stated that Ex.P.2 and 3 to 9 are created documents relied by the plaintiff. D.W.1 denied that he has not received further advance amount of Rs.1,00,000/- alleged to have been paid by the plaintiff on 4/12/1998 and D.W.1 specifically stated that plaintiff himself got encashed the cheque amount on 26/10/1998 and paid Rs.1,00,000/- to him towards loan amount. Hence, D.W.1 stated that transaction under Ex.P. 1 is not agreement of sale and it is only a security document executed for the loan transaction. Hence, D.W.1 stated that he is getting Rs.1,00,000/- to Rs.1,50,000/- by lease of premises in the year 1998 by receiving pagadi amount(security advance amount). Hence, D.W.1 denied the case of the plaintiff and also denied the execution of documents relied by the plaintiff as sale agreement and also D.W.1 denied that he has received loan 29 OS. No.7688 of 2003 amount from Sri. C. Ashok Kumar as per Ex.P.3 to 9 and under Ex.P.2. Hence, D.W.1 got marked Ex.D.1, wedding invitation card of his sister in his evidence and as such D.W.1 by his rebuttal evidence prayed for dismissal of the suit.
18. Learned counsel for plaintiff cross-examined D.W.1 on 9/7/2012, wherein D.W.1 admits his signature and that of his brother K.V.Manjunath(defendant No.2) on each page of Ex.P.1 and also D.W.1 admits his signature and that of his brother on Ex.P.2 on each page. Ex.P.2(a) is signature of D.W.1 and Ex.P.2(b) is signature of K.V.Manjunath and in Ex.P.3 and 4 cheques. D.W.1 admits that there are signatures of himself and his brother on these two cheques and D.W.1 also admits that in Ex.P.5 and 6 there are signatures of himself and his brother and he further admits that on pronote and consideration receipt himself and his brother have signed and D.W.1 admits that there are signatures of himself and his brother on Ex.P.6. D.W.1 denied his knowledge that plaintiff by paying amount to one Sri. C. Ashok Kumar has obtained discharge shara on Ex.P.5 and Ex.P.6 and D.W.1 denied that Ex.P.1 agreement of sale is prepared by Advocate by name Sri. Aravinda Kumar and Rajashekar and D.W.1 stated that he has not signed on Ex.P.1 before Sub-Registrar or by affixing his LTM on it and D.W.1 admits that on back page of Ex.P.1 there are signatures of him and his brother and D.W.1 admits his 30 OS. No.7688 of 2003 signature as per Ex.P.1(c) and Ex.P.1(d) is his brother's signature and D.W.1 also admits the signatures as per Ex.P.1(c) and thumb impression of K.V.Manjunath is marked at Ex.P.1(d) and D.W.1 denied that these signatures marked at Ex.P.1© and (d) are signed before Sub-Registrar. On the contrary, D.W.1 stated that he has put his signature on Ex.P.1 in the shop of plaintiff. But, D.W.1 had denied that Ex.D.1 was executed by himself and his brother before Sub- Registrar office and he denied the suggestion that there is signature of him on page No.5 of Ex.P.1 and he do not know whether Ex.P.1 is attested by two witnesses namely Chandrashekar and Dinesh Kumar and D.W.1 stated that he has not executed Ex.D.1 in favour of plaintiff and D.W.1 admits that plaintiff got obtained account in Amanath Co- operative Bank . But, D.W.1 stated that cheque book and pass-book are retained by himself and D.W.1 denied that himself and his brother have signed in the Bank and have obtained cheque book and pass book to their custody. But, D.W.1 stated that plaintiff had paid Rs.1,00,000/- to him and his brother on the date of Ex.P.1 by issuance of cheque and D.W.1 stated voluntarily that, plaintiff himself drawn the said amount from the bank and given an amount of Rs.1,00,000/- and D.W.1 admits that plaintiff has given cheque as mentioned in clause-1 of Ex.P.1 of Rs.1,00,000/- to himself and his brother and D.W.1 denied his knowledge that the said cheques have been encashed in their account in Amanath Co-
31 OS. No.7688 of 2003operative Bank Ltd., and D.W.1 denied that though plaintiff has deposited another cheque to their account on 4/12/1998 and it is encashed by them. However, D.W.1 admits that, he has received Rs.2,00,000/- from the plaintiff and D.W.1 admits that on 4/12/1998 they have encashed the cheque of Rs.1,00,000/-.
19. D.W.1 further cross-examined on 7/1/2014 by counsel for plaintiff wherein he admits that as on the date of Ex.P.1 suit schedule property and construction existed was ground floor First Floor and 2nd floor and half of 3rd floor and D.W.1 admits that one shop premises in the ground floor is in his possession and another shop in the ground floor was occupied by the proprietor of Standard electricals as a tenant and remaining shops in the ground floor were in the possession of plaintiff and his brother, Mahaveer as tenants. plaintiff and his brother since the age of their father are doing business in the name and style of Mohan electricals. The suit schedule premises was constructed in the year 1988 and prior to it old building was in existence and D.W.1 admits that father of the plaintiff was carrying business in the name of Mohan Electricals and after demise of plaintiffs' father the very business is continued by plaintiff and his brother, Mahaveer and D.W.1 further admits that the plaintiff and his father and his brother were doing business in the ground floor shops as tenants for the last 45 years. D.W.1 admits 32 OS. No.7688 of 2003 that as on the date of execution of Ex.P1 i.e., on 26-10-1998 their relations with plaintiff and his brother was good and very cordial and there were two shops in the first floor premises as on 26/10/1998 and these shops are leased in favour of tenants and D.W.1 do not know the period fixed under Ex.P.1 for completion of sale transaction and D.W.1 admits that he has instituted eviction proceedings against the tenants by name Standard Electricals and he admits that the tenants of first floor have vacated the premises voluntarily after execution of Ex.P1 and D.W.1 further admits that in 2nd floor and 3rd floor he was residing and in order to get possession of tenant, Standard Electricals 3 years time was consumed and D.W.1 denied in order to get vacated the existing tenants he has taken time of 5 years for handing over vacant possession in Ex.P.1 and D.W.1 has denied his knowledge that he has obtained clearance certificate for the registration of property from IT department and further denied that plaintiff had insisted me to obtain IT clearance certificate in the year 1998 and thereafter also insisted to obtain I.T declaration certificate and D.W.1 admits that he is the owner of Maruti omini vehicle and he has obtained loan from Ashok Kumar by hypothecation of Maruti Omini vehicle and again at the same stretch witness denied the hypothecation his Maruti Omini vehicle and obtaining of loan from 2nd party of Ex.P2 and he do not know whether there is any endorsement regarding hypothecation transaction of RC 33 OS. No.7688 of 2003 book of his vehicle and he cannot say the registration number of Maruthi Omini vehicle and he do not remember whether there is an entry of hypothecation in the RC book pertaining to that vehicle and D.W.1 stated that he do not know who is C. Ashok Kumar and do not remember whether stamp papers required for Ex.P2 are purchased in the joint names. D.W.,1 further denied the suggestion that regarding execution of Ex.P2 authorizing the plaintiff to discharge the loan availed from the C.Ashok Kumar and further denied that the plaintiff has discharged the outstanding debt C. Ashok Kumar on their behalf and D.W.1 specifically denied that himself and his brother have borrowed loan sum of 4 lakhs on15-11-1998 and loan of 3 lakhs on 9-8-1998 from Ashok Kumar. D.W.1 admits that himself and his brother were doing business in the ground floor shop premises in the year 1996 and they have commenced the business in the year 1989 in the name and style of Srikanth Electricals. D.W.1 further admits that, his business is registered under the sale tax Act and also the said business is assessed under KST and he has kept accounts in respect of my business and also he is having accounts of return submitted to sales tax department. D.W.1 denies that, in his books of accounts kept in the shop there is an entry of two loan transactions in respect of Rs.2,00,000/- with C.Ashok Kumar, wherein D.W.1 stated that, he has not borrowed any amount of loan from the plaintiff towards improvement of business, wherein himself 34 OS. No.7688 of 2003 and his brother had been to Sub registrar office and he do not know whether Ex.P1 was registered on the day in the office of sub registrar office. D.W.1 do not know who have attested Ex.P1 as attesting witnesses and he do not know who have attested Ex.P2 as attesting witnesses. D.W.1 denied that he has issued two cheques as per Ex.P3 & 4 to discharge the loan amount borrowed under Ex.P5 & 6 he do not have pass book issued by Amanath Co-operative Bank Ltd., .
20. D.W.1 further cross-examined by counsel for plaintiff on 3/3/2014 wherein he admits that he has not applied before I.T authority for obtaining permission for execution of Ex.P.1 and plaintiff is having money with him and he do not know whether plaintiff is having financial capacity to pay balance sale consideration amount.
D.W.1 asked question as follows:
Q:- The plaintiffs are ready and willing to pay balance consideration amount since the date of Ex.P1?
Answer: No agreement of sale was executed.
21. D.W.1 admits that plaintiffs are doing business in whole sale dealing in electrical appliances adjoining to his shop and D.W.1 denied his knowledge whether plaintiff has earned reputation and good will in that locality and he do not know whether plaintiffs are ready and willing to pay balance sale consideration amount even as on today. D.W.1 further denied that since plaintiffs are doing business interest he suit 35 OS. No.7688 of 2003 schedule property since 50 years ago and for that reason, he has executed Ex.P.1 in favour of plaintiff. D.W.1 further admits that he got vacated their tenants. D.W.1 denied that there is agreement of sale Ex.P.1 entered in between plaintiff and him in respect of vacating the tenants from the suit schedule property.
22. Again D.W.1 was recalled for further cross- examination by plaintiff on 15/11/2014 wherein on perusal of this cross-examination, again it is asked regarding Ex.P.1 wherein D.W.1 admits the registration of Ex.P.1 before Sub- Registrar office and prior to Ex.P.1, schedule shop was mortgaged in favour of M/s Delton Switch Gears and Electrical Control and obtained money from the said firm and he admits that M/s Delton Switch Gears and Electrical Control was tenant under him in respect of one shop and he admits that, after Ex.P.1, he has repaid loan amount obtained from M/s Delton Switch Gears and Electrical Control firm and got redeemed mortgage transaction in respect of that shop and D.W.1 stated that he has not paid amount in lump sum in favour of M/s Delton Switch Gears and Electrical Control. But, he has paid Rs.2000/- each by way of installment to repay the said loan amount and he admits that mortgage transaction in favour of M/s Delton Switch Gears and Electrical Control for Rs.1,00,000/- and it was registered mortgage deed and D.W.1 stated that he had obtained that loan one year earlier to Ex.P.1 from M/s Delton Switch Gears 36 OS. No.7688 of 2003 and Electrical Control firm and he denied that, M/s Delton Switch Gears and Electrical Control had vacated the premises during the month of October-1999 and D.W.1 denied that he has utilized the amount received from plaintiff under Ex.P.1 to pay towards the mortgage loan of M/s Delton Switch Gears and Electrical Control Firm and D.W.1 admits that, mortgage deed in favour of M/s Delton Switch Gears and Electrical Control Firm is in his custody and he can produce the said mortgage deed and it is redemption. D.W.1 denied that he is deposing falsely that, he has repaid the loan amount to M/s Delton Switch Gears and Electrical Control by way of installment of Rs.2000/- and through said transaction. D.W.1 further denied that in the year 1998 Sub Registrar valuation of property was prevailing at Rs.5,000/- per sq.ft. and according to the witness in the year 1998 the market value of property prevailing at Rs.5,000/- per sq.ft. and he do not know market value prevailing in the year 1998 in respect of suit schedule property and D.W.1 posed question regarding market value and he has deposed on his guess/imagination, for which D.W.1 stated that, he has not stated in the written statement regarding market value of suit schedule property in the year 1998 on Rs.50,00,000/- and he do not have documentary evidence to show that he was getting pagadi amount for each shop to the tune of Rs.1,00,000/- or Rs.1,50,000/- per year and D.W.1 admits that he ahs not received pagadi amount from his tenants and 37 OS. No.7688 of 2003 D.W.1 denied that he has deposed falsely the valuation of property at 50,00,000/- and D.W.1 specifically denied that he has paid Rs.2,00,000/- towards advance money under Ex.P.1 and D.W.1 specifically denied that plaintiff by discharging loan amount of Sri. C. Ashok Kumar on their behalf and D.W.1 denied that, he has got rental income of entire building of Rs.3,000/- per month. But, according to the D.W.1, he was receiving Rs.7,000/- per month as rent for entire building in the year 1998 and he is doing electrical business since 1980 and his business is assessed to sale tax and he is also income assessee and D.W.1 admits that he has not disclosed about the transaction which is subject matter of the suit in I.T returns and also not shown in his books of accounts and D.W.1 denied that, he has not shown his transaction to I.T authority or in the books of accounts to avoid his liability to repay the loan amount and D.W.1 denied that there was outstanding rent amount payable by him prior to execution of Ex.P.1. D.W.1 stated that he is not paying any I.T.
22. On appreciation of evidence available on record, wherein it is the case of the plaintiff that Ex.P.1 is registered agreement of sale and it is outright sale transaction of sale of suit schedule premises by defendant No.1 and 2 on 26/10/1998. But, on appreciation of evidence of P.W.1 and 2 wherein there is no demand notice issued by the plaintiff 38 OS. No.7688 of 2003 prior to the institution of suit to defendant No.1 and 2 and after perusal of terms of Ex.P.1, wherein there is performance on the part of plaintiff wherein plaintiff has to publish the fact of execution of Ex.P.1 in any of the newspaper calling for objections. The plaintiff has not taken out any paper publication and as per contract terms that they shall pay tax to the property. But, they have not paid tax and further there is clause that purchasers shall furnish draft sale deed to the vendors for the said purpose. But, in this case, plaintiff has not complied his performance of contract regarding clause No.7 prior to filing of the suit and considering the clear admission of P.W.1 that expl.1 is executed by defendants is for the amount obtained for development of their business. In his cross-examination at page No.13 of his deposition dated:
24/1/2008. Hence, this admission amounts to an admission u/s 17 of evidence Act and hence, the entire case pleaded by the plaintiff on Ex.P.1 that it is registered agreement of sale falls to the ground and as such in view of his clear admission entire case put-forth by the plaintiff relying upon further documents Ex.P.2 and Ex.P.3 to 9 are held to be created and concocted documents in order to file this suit against the defendants for the relief of specific performance of contract . The plaintiff has not examined the attesting witness on Ex.P.1 in this case and whereas P.W.2 is examined to prove Ex.P.2. But, in view of his admission in his cross-examination, the evidence of P.W.2 is discarded.39 OS. No.7688 of 2003
23. It is pertinent to note that, defendants have taken specific contention that they have obtained loan of Rs.1,00,000/- from the plaintiff and at that time, plaintiff had obtained 5 cheques and got signed by defendants on blank bond papers and also obtained signatures on On Demand Pronotes and plaintiff has created documents as per Ex.P.2 to
9. Though D.W.1 admits his signature and that of his brother on these documents. But, D.W.1 do not admits Ex.P.2 to 9 wherein D.W.1 has stated that these documents are created and fabricated by the plaintiff in collusion with his relative Sri. C. Ashok Kumar. Hence, it is mandatory for the plaintiff to examine his relative Sri. C. Ashok Kumar as witness in this case to prove the alleged loan transaction dated: 15/11/1998 and 9/12/1998. But, plaintiff failed to examine Sri. C. Ashok Kumar in this case as witness in order to prove Ex.P.2 tripartite agreement and also Ex.P.3 to 9. These documents relied by the plaintiff. Hence, non- examination of Sri. C. Ashok Kumar in this case wherein this leads to draw an adverse inference against the plaintiff u/s 114(G) of Indian Evidence Act to hold that plaintiff and his relative Sri. C. Ashok Kumar have manipulated these documents taking advantage of signatures got executed by defendants on blank cheques and blank bond papers and also by execution of blank On Demand Pronote and consideration receipts. It is pertinent to note that, plaintiff has not produced his bank pass-book or any statement 40 OS. No.7688 of 2003 obtained from the bank of his account at Amanath Co- operative Bank to show that, two cheques issued by him are encashed by defendants No.1 and 2 on 26/10/1998 and 4/12/1998 respectively. Wherein D.W.1 stated that, plaintiff himself got with-drawn the amount from Amanath Co- operative Bank and has paid Rs.1,00,000/- only to him. Hence, non-production of bank documents by the plaintiff also leads to draw an adverse inference that no payment was made to plaintiff on 4/12/1998 of Rs.1,00,000/-. On the contrary, in Ex.P.1 Rs.1,00,000/- is paid under cheque transaction and D.W.1 admits that he ahs received Rs.2,00,000/-. But, it is a stray admission of D.W.1 in his cross-examination. But, further plaintiff has to satisfy this court that Rs.2,00,000/- has been passed on to defendant No.1 and 2 under two cheque transaction since plaintiff has not produced cheque dated: 4/12/1998 and also not produced bank pass-book to show regarding the transaction has been duly entered upon in the name of defendant No.1 and 2 and also no statement of S.B. Account is produced. Hence, I hold that plaintiff has utterly failed to prove that Ex.P.1 is agreement of sale executed by defendant No.1 and 2 and on the contrary, as per admission of P.W.1 himself it is out come of loan transaction. Hence, I hold that Ex.P.1 is not agreement to sell the suit schedule property executed by defendants. The plaintiff has not produced any book of accounts or any statement of account of bank to show that, 41 OS. No.7688 of 2003 he has paid Rs.5,00,000/- on 15/04/2001, Rs.3,00,000/- on 20/12/2002 and Rs.3,00,000/- on 17/1/2003.
24. The plaintiff has relied upon Ex.P.2 ie., alleged tripartite agreement dated: 28/10/1998. Though D.W.1 has admitted his signatures on Ex.P.2 and also on Ex.P.3 and 4. But, mere admission of signatures by defendant No.1 and 2 on these documents will not establish the proof of contents of Ex.P.2 to 4 wherein plaintiff has to prove these documents to the satisfaction of court by examining the concerned parties to this tripartite agreement dated: 28/10/1998. But, plaintiff failed to examine Sri. C. Ashok Kumar who is stated to be first party in the tripartite agreement and as per admission of P.W.1 himself that Ex.P.1 is the document in respect of loan availed by defendants for their business and this admission is vital to reject the case of the plaintiff and as such plaintiff has also not produced any documents to show that he was having amount of Rs. 4,25,000/- as on 5/11/1998 and also an amount of Rs.3,18,000/- as on 9/12/1998 and it is the case of the plaintiff that plaintiff has discharged the loan amount on behalf of defendants to one Sri. C. Ashok Kumar on 17/1/2003 and obtained endorsement on On Demand Pronote dated: 15/11/1998 and 9/8/1998 there was no authorization letter given by defendants in favour of plaintiff and if really plaintiff had discharged the alleged loan amount to his relative Sri. C. Ashok Kumar on alleged dates, wherein 42 OS. No.7688 of 2003 there was no impediment for the plaintiff to obtain endorsement executed through defendant No.1 and 2 on this agreement of sale which is in the custody of plaintiff. But, plaintiff has not obtained any such endorsement. On the contrary, considering the evidence of D.W.1 wherein he has denied execution of Ex.P.1 as sale agreement and on the contrary, D.W.1 stated that he has received Rs.1,00,000/- for his need and for necessity for marriage expenses of his sister and also for business purpose and this defence taken by the defendant s appears to be probable and also defendants have produced Ex.D.1 in this case and it is a fact proved on record that plaintiff and his father was tenant under defendants since long years ago and after demise of father of plaintiff, plaintiff and his another brother Mahaveer have continued their electrical business in two tenements belongs to defendants in the ground floor by paying rent of Rs.330 and Rs.1330/- for the said shops and also it is a fact on record that relation of defendants with plaintiff is cordial and also relation of defendants with plaintiff's father and ancestors was cordial and known to each other and defendants have not obtained any security deposit amount from the plaintiff not his brother Mahaveer in respect of two shops. Hence, it appears that plaintiff had obtained these documents from the defendants and has created these documents taking undue advantage of innocence and lack of legal knowledge by D.W.1 wherein D.W.1 is having less educated person and hence, 43 OS. No.7688 of 2003 considering the evidence placed on record I hold that Ex.P.1 is not sale agreement in real sense and reading as a whole to Ex.P.1 and coupled with admission of P.W.1, wherein Ex.P.1 is a security document obtained by the plaintiff from defendant No.1 and 2 in hand-loan transaction wherein plaintiff has advanced Rs.1,00,000/- to the defendants under cheque transaction by issuance of cheque referred in Ex.P.1 cheque bearing No. 646325 drawn on Amanath Co-operative Bank and as per Ex.P.1 balance sale consideration amount shown as Rs.17,00,000/- and term of 5 years has fixed under Ex.P.1 and no title deeds are handed over by defendants to the plaintiff on the date of Ex.P.1 and considering the 5 years time fixed under Ex.P.1 wherein this document treated as agreement of sale wherein defendants have already initiated HRC proceedings for eviction of tenants. Hence, this Ex.P.1 never acted upon as agreement of sale by the parties. On the contrary, Ex.P.1 is a document obtained from defendants in a loan transaction and plaintiff has now pressed this document against defendants along with other created documents marked at Ex.P.2 to 9. It is true fact that, Sri. C. Ashok Kumar is the son of senior father of plaintiff and he is residing somewhere out of Bengaluru city and not doing any business at Bengaluru and hence, there is no signature of defendants on the alleged receipt Ex.P.7 to 9. Hence, I hold that Ex.P.2 and Ex.P.3 to 9 are created set of documents relied by the plaintiff and plaintiff has utterly failed to prove 44 OS. No.7688 of 2003 that he has paid additional advance amount of Rs.1,00,000/- by way of cheque transaction on 4/12/1998 and plaintiff has not produced any original cheque or loan issued by the bank and also statement of account is not produced to prove issue No.2. Hence, plaintiff has failed to prove the issue No.1 to 3 and issue No.5 as against the defendants. On the contrary, defence taken by the defendants appears to be probable and proximate to accept their defence filed in this suit and as such defendants have proved the issue No.4 as against plaintiff and accordingly,, issue No.4 is answered in affirmative.
25. ISSUE NO.6:- The plaintiff has prayed for grant of specific performance relief in respect of suit schedule property based upon Ex.P.1 and Ex.P.2. But, this court already rejected Ex.P.2 relied by the plaintiff as it is manipulated and concocted agreement relied by the plaintiff and in respect of Ex.P.1, it is out come of loan transaction between plaintiff and defendant No.1 of Rs.1,00,000/- as hand-loan transaction and D.W.1 fairly admitted that he has received Rs.1,00,000/- as loan from the plaintiff for his urgent need and necessity. The suit schedule property is consisting of ground floor, first floor, second floor and portion of 3rd floor , wherein in the ground floor, there are shop premises leased in favour of tenants and in the first floor there are tenants leased to defendants. The plaintiff and his 45 OS. No.7688 of 2003 brother have occupied two shop premises and paying loan to the defendants for Rs.330/- and 1330/- and D.W.1 stated that, market value of suit schedule property is Rs.50,00,000/- as on 26/10/1998. Though ndw.1 is cross- examined on this aspect, D.W.1 has not given any admissions. But, considering the construction and occupation available in the building, wherein this building is situated in the commercial locality of the town having ground floor, second floor and 3rd floor portion of property having worth value for commercial property situated in the heart of the city wherein Sub-Registrar valuation for this commercial property appears to be more considering the present market value of immoveable property in Bengaluru city. Hence, on that count also, the alleged value shown in Ex.P.1 fixing the property value for Rs.18,00,000/- is too inadequate and the court cannot accept such inadequate valuation for the property consisting of ground floor plus 3 storied building. Hence, on that count also, Ex.P.1 is not acceptable document. Hence, plaintiff is not entitled for the relief of specific performance of contract based upon the Ex.P.1 and 2. Plaintiff has not prayed for refund of amount of Rs.1,00,000/- in the suit and in the absence of alternative prayer made by the plaintiff as per section 22 of Specific Relief Act , court cannot grant any relief to the plaintiff regarding refund of Rs.1,00,000/- and on the contrary, the plaintiff under the guise of Ex.P.1 and 2 has not paid the rent to the defendants 46 OS. No.7688 of 2003 and as such the question of order for refund of an amount of Rs.1,00,000/- by the defendants will not arise for consideration. Hence, I hold that after exercising of discretion under section 20 of Specific Relief Act, wherein plaintiff has not approached this court with clean hands and plaintiff has constructed his case on manipulated and created documents and as such I hold that plaintiff is not entitled for any relief of specific performance of contract against the defendants. Accordingly, Issue No.6 is answered in the negative.
26. Issue No.7: In view of my findings and reasons given on Issue No.1 to 6, the suit filed by the plaintiff deserves to be dismissed. Hence, I proceed to pass the following:-
OR D E R The suit of the plaintiff is hereby dismissed. No order as to costs.
Draw decree accordingly.
{Dictated to the Judgment writer , transcribed by her, corrected and then pronounced by me in open court this 29th day of January, 2016.} (S.V.KULKARNI) XI ADDL.CITY CIVIL JUDGE BANGALORE CITY.47 OS. No.7688 of 2003
ANNEXUERE List of witnesses examined for plaintiff:-
P.W.1 Sri.M.Vinod P.W.2 Sri.M.Babulal
List of documents exhibited for plaintiff:-
Ex.P.1 Agreement of sale dated 26.10.1998
Ex.P.1(a)&(b) Signatures of defendants respectively
Ex.P.2: Agreement of sale dated: 28/10/1998
Ex.P2(a)&(b) Signatures of defendants respectively
Ex.P.2© Signature of Ashok Kumar
Ex.P.3 &4 Cheques dated: 15/11/1998 and
9/12/1998 respectively
Ex.P.3(a)&(b) Signatures of defendants respectively
Ex.P.4(a)&(b) Signatures of defendants respectively
Ex.P.5 & 6 Promissory Notes dated: 15/7/1998
and 9/8/1998
Ex.P.5(a)&(b) Signatures of defendants respectively
Ex.P.6(a)&(b) Signatures of defendants respectively
Ex.P.7 to 9 Receipts
Ex.P.7(a),8(a) Signatures of Ashok Kumar
& 9a)
48 OS. No.7688 of 2003
List of witnesses examined for defendants:
DW.1 Sri. K.V.Srikanth
List of documents exhibited for Defendants:-
Ex.D.1 Wedding invitation of defendant's
sister
XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
49 OS. No.7688 of 2003
50 OS. No.7688 of 2003