Bangalore District Court
Sri.Balaji vs Sri.M.Ravi on 30 October, 2018
IN THE COURT OF IX ADDL.CITY CIVIL AND SESSIONS
JUDGE AT BANGALORE (C.C.H.5)
Dated: This the 30th day of October 2018
Present : Smt. M.H.Shantha, M.A., LL.B.,
IX Addl. City Civil & Sessions Judge,
Bangalore.
O.S. NO.871/2013
Plaintiff : Sri.Balaji, s/o. Tyagaraj,
aged about 38 years,
# 945, 1st floor, Nisarga Layout,
80 feet, Nagarabhavi Main Road,
Maruthi Nagara, Bangalore-72.
(By Sri.H.L.Manjunatha, Advocate)
- Vs -
Defendant : 1. Sri.M.Ravi, s/o. T.Muniswamappa,
aged about 49 years
2. Smt.P.V.Padma, w/o. M.Ravi,
aged about 44 years
Both are r/at # 25, (old # 85),
1st main, V.P.Road, Jalahalli village,
Bangalore-13.
(By Sri.M.Prakasha, Advocate)
Date of institution
of the suit : 30.01.2013
Nature of the suit :
[suit on pronote, suit
for declaration and
possession, suit
for injunction] : Specific Performance
2 O.S.No.871/2013
Date of the commencement
of recording of the evidence: 19.12.2013
Date on which the
Judgment was pronounced : 30.10.2018
Year/s Month/s Day/s
Total Duration -05- -09- -00-
(M.H.Shantha)
IX Addl. City Civil & Sessions Judge,
Bangalore.
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JUDGMENT
This suit is filed by plaintiff against the defendants for judgment and decree for the relief of specific performance of contract against the defendant No.1 and for permanent injunction restraining the 1st defendant and any other person acting under him from encumbering or alienating the suit schedule property in any way.
2. The case of the plaintiff in brief is that, The 1st defendant is the absolute owner of the property bearing municipal No.25 (old No.155/2), situated at Jalahalli, Yashwanthapura, Bangalore having purchased the same under a sale deed dated 28.01.1998. The 3 O.S.No.871/2013 schedule property consists of ground, 1st and 2nd floor portions presently occupied by several tenants. Further the plaintiff has stated that, the 1st defendant being the owner of the schedule property wanted to sell away the same in order to overcome his financial debts and as such offered the same for sale and after negotiation an agreement of sale was entered into between the plaintiff and the 1st defendant on 11.01.2010 agreeing upon various terms and conditions. The 2nd defendant being the wife of the 1st defendant has signed the said agreement of sale expressing her no objection for the transaction and as such even though no relief is sought against her, she is made as a party to the suit as she is a necessary party. The terms and conditions of the agreement of sale dated 11.01.2010 are the sale consideration is fixed at Rs.20,00,000/-, the plaintiff has paid an advance amount of Rs.16,00,000/- to the 1st defendant in cash on the day of the agreement itself, the plaintiff shall pay the balance sale consideration to the defendant at the time of registration of the sale deed, three years time is fixed to complete the sale transaction. Further the plaintiff has stated that, the defendant shall get the occupants of the schedule property vacated and shall keep the schedule property vacant with him within the agreed period and the same shall be intimated to the 4 O.S.No.871/2013 purchaser in writing, copies of sale deed dated 28.01.1998, khatha certificate dated 22.05.2004 and 23.04.2008, encumbrance certificate and tax paid receipts dated 22.09.1999 and 23.04.2008 were given to the plaintiff, soon after the receipt of information in writing issued by the defendant to the plaintiff as per clause 5 of the agreement the plaintiff shall get ready with the balance sale consideration, in the event of 1st defendant fails to execute the sale deed, the plaintiff is at liberty to enforce the agreement.
3. Further the plaintiff has stated that, he was approaching the 1st defendant once in every three months requesting him to complete the sale transaction. On every such occasion the 1st defendant went on postponing the same assuring the plaintiff that he would complete the transaction within the agreed period and requested the plaintiff to wait till such time so that he could keep the schedule property vacant in his possession. The plaintiff believed the assurances of the 1st defendant and waited up to the end of August 2012. The plaintiff on 01.09.2012 approached the 1st defendant requesting him to receive the balance sale consideration and to execute the sale deed in his favour. Further the plaintiff has stated that, on the said 5 O.S.No.871/2013 day the 1st defendant told the plaintiff that he will keep the premises vacant latest by 15.11.2012 and requested the plaintiff to be ready with the balance consideration. The plaintiff again approached the 1st defendant on 15.11.2012 with the balance sale consideration and requested him to execute the sale deed for which the 1st defendant expressed his unwillingness to sell the property in favour of the plaintiff on the pretext that price has gone high. The plaintiff's request fell on the deaf ears of the 1st defendant. The plaintiff has issued legal notice dated 29.11.2012 to the 1st defendant through registered post to both the addresses as detailed in the notice expressing his readiness to get the sale deed registered by paying the balance sale consideration with a further request to the 1st defendant to inform him the day and date on which the 1st defendant would come to the office of the Sub-Registrar to execute the sale deed in favour of the plaintiff. The 1st defendant appears to have received the notice sent to the 2nd address as this plaintiff received the acknowledgment dated 30.11.2012. The notice sent to the 1st address returned with a share 'not claimed' but the information was delivered to the 1st defendant on 30.11.2012 by the postal authorities. The plaintiff is always ready and willing to get the sale deed registered in his favour by paying the balance 6 O.S.No.871/2013 sale consideration to the 1st defendant and even now he is ready and willing to perform his part of contract. The 1st defendant on one or the pretext has postponed the execution and registration of the sale deed in favour of the plaintiff for the reasons best known to him. Hence, this suit.
4. In pursuance to the summons the defendants have appeared through their counsel and 1st defendant has filed the written statement and the 2nd defendant has filed memo for adopting the written statement of defendant No.1. In the written statement the 1st defendant has contended that, in the year 2009 the plaintiff was introduced to this defendant through one of his tenant Sumathi by stating that he is a social worker and making arrangements to get loans. Further the 1st defendant has contended that, subsequent to that through Sumathi the plaintiff developed contact with this defendants and making statements and assurances that he knows managers of the banks, financial firms and he arranges loans to persons. In the month of December 2009 as this defendants was in financial need of Rs.1,00,000/- for the purpose of small repairs to his house building i.e., suit property, this defendant approached the tenant Sumathi and the said Sumathi called the plaintiff by 7 O.S.No.871/2013 calling over phone to some persons i.e., a financier, has informed this defendant that if he needs financial help he has to arrange and give 10 blank signed cheques and Rs.200/- blank signed stamp paper to the financier for security purposes. The said fact was informed by the plaintiff through a short message service i.e., through an SMS sent by his mobile to this defendant. Assuring the words of the plaintiff made through SMS and having in dire need of amount, this defendants arranged 10 blank signed cheques and two blank signed stamp papers of Rs.100/- each i.e., Rs.200/- and handed over the same to the plaintiff in the first week of January 2010. Further the 1st defendant has contended that, thereafter, having obtained the 10 blank signed cheques and two blank signed stamp papers of Rs.100/- each i.e., Rs.200/-, the plaintiff arranged the loan amount of Rs.1,00,000/- to this defendants. Further the 1st defendant has contended that, subsequently this defendant repaid the loan amount of Rs.1,00,000/- to the plaintiff along with interest in the month of July 2011 as this defendants did not know the financier who had given amount, this defendants requested the plaintiff to return the 10 blank signed cheques and Rs.200/- i.e., two papers of Rs.100/- each, blank signed stamp paper. Further the 1st defendant has contended 8 O.S.No.871/2013 that, the plaintiff also agreed to return the 10 blank signed cheques and Rs.200/- i.e., two papers of Rs.100/- each, blank signed stamp paper to this defendants after collecting the same from the financier. Assuring the words of the plaintiff, this defendants waited for some time and even after that since the plaintiff did not returned the 10 blank signed cheques and two blank signed stamp papers of Rs.100/- each i.e., Rs.200/-, this defendant approached and demanded the plaintiff to return the 10 blank signed cheques and two blank signed stamp papers of Rs.100/- each i.e., Rs.200/-. Further the 1st defendant has contended that, the plaintiff with a malafide intention and to make wrongful gain had handed over one of the blank signed cheques to his friend by name Vishwanath and issued a legal notice to that effect. Immediately this defendants have replied the same by stating true facts. Thereafter, the plaintiff with a malafide intention to knock off the valuable property belonging to this defendant, has filed the above false case by utilizing the two blank signed stamp papers of Rs.100/- each i.e., Rs.200/-, issued by this defendants at the time of borrowing the loan amount of Rs.1,00,000/-. Further the 1st defendant has contended that, he has never executed any document as stated by the plaintiff. The document viz., agreement of sale, which has 9 O.S.No.871/2013 been produced by the plaintiff is created, fraudulent and got up document. Further the 1st defendant has stated that the suit property is much more valuable than the value mentioned by the plaintiff in the alleged fraudulent, created and got up document i.e., agreement of sale. The value of the suit property is more than the value mentioned the alleged agreement, the suit is not properly valued. Therefore, the Court fee paid is sufficient. The suit property is a residential house property and in that only the defendants are residing. That apart from the suit house property, the defendants have no other property for their living. Hence the defendant prays for dismissal of the suit filed by the plaintiff.
5. On the above pleadings of the parties, my predecessor-in-office has framed the following issues :
1. Whether the plaintiff proves that he and the defendants have entered into agreement of sale in respect of the suit schedule property for a total sale consideration amount of Rs.20 lakhs and the plaintiff paid advance amount of Rs.16 lakhs to the 1st defendant?10 O.S.No.871/2013
2. Whether the plaintiff further proves that the 1st defendant has failed to perform his part of the contract?
3. Whether the plaintiff proves that he always been ready and willing party to perform his part of the contract?
4. Whether the defendant prove that the 1st defendant has issued 10 blank signed cheques and two signed blank stamp papers and has borrowed loan of Rs.1,00,000/- from the plaintiff and subsequently repaid the same along with interest to the plaintiff?
5. Whether the plaintiff is entitled for the relief of specific performance of the contract, in the alternative for refund of advance sale consideration for Rs.16 lakhs with interest from the defendants?
6. What order or decree?
6. In support of the case of the plaintiff, the 1st plaintiff has got examined himself as P.W.1 and also examined two witnesses as P.W.2 and P.W.3. The plaintiff has produced 10 documents at Ex.P-1 to Ex.P-10. On the other hand, the 1st defendant has got examined himself as D.W.1, the 11 O.S.No.871/2013 defendants have produced 14 documents at Ex.D-1 to Ex.D-14 and closed their side evidence.
7. Heard the arguments on both the sides. The learned counsel for the defendants has filed written arguments. After hearing the arguments and considering the oral and documentary evidence on record, my findings on the above issues are as here under :
Issue No.1 : In the Affirmative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Issue No.5 : Partly in the Affirmative
Issue No.6: As per final order for the following :
REASONS
8. ISSUE No.1 AND 4 : As these issues are
interconnected with each other, they are taken up together for discussion.
In support of the case of the plaintiff he has got examined himself as P.W.1. P.W.1 in his evidence has deposed that the 1st defendant has entered into an agreement of sale on 11.01.2010 agreeing to sell the suit schedule property for Rs.20,00,000/- and received an 12 O.S.No.871/2013 amount of Rs.16,00,000/- towards advance sale consideration and agreed to receive the balance sale consideration amount of Rs.4,00,000/- at the time of registration of the sale deed. Further P.W.1 has deposed that, the 1st defendant has agreed to execute the sale deed within three years from the date of agreement of sale. Further P.W.1 has deposed that the 2nd defendant is the wife of 1st defendant and she has signed the said agreement of sale as consenting witness. The plaintiff has produced the agreement of sale, legal notice, postal receipts, postal acknowledgment, postal cover, certified copy of the sale deed, khatha extract and encumbrance certificate and the same are marked at Ex.P-1 to Ex.P-10. P.W.1 in his cross examination has deposed that after the execution of agreement of sale, he came to know that the 1st defendant has borrowed the loan. Further P.W.1 in his cross-examination has denied that, he has obtained the signature of the defendants on the blank stamp paper for the purpose of obtaining the loan and concocted the same as Ex.P-1 agreement of sale. Further P.W.1 in his cross- examination has denied that, the 1st defendant has not executed the agreement of sale at Ex.P-1. D.W.1 in his cross-examination has admitted that, the signature found on Ex.P-1 agreement of sale is his signature. In the cross-
13 O.S.No.871/2013examination P.W.1 has denied the suggestion put by the counsel for the defendants that, "¤.¦.1 PÀæAiÀÄzÀ PÀgÁgÀ£ÀÄß £Á£ÀÄ mÉÊ¥ÀÅ ªÀiÁr¹PÉÆAqÀÄ §A¢gÀÄvÉÛÃ£É CAzÀgÉ ¸ÀjAiÀÄ®è. ¤.¦.1 gÀ°è 1£Éà ¥ÀæwªÁ¢AiÀÄ ºÉAqÀwAiÀÄ ºÉ¸ÀgÀÄ ªÀÄvÀÄÛ «¼Á¸Àª£À ÀÄß 2£Éà ªÉAqÀgï JAzÀÄ ¸ÀzÀjà ¤.¦.1gÀ°è eÁUÀ ¸ÁPÁUÀĪÀÅ¢®è JA§ PÁgÀtPÉÌ £Á£ÀÄ mÉÊ¥ÀÅ ªÀiÁr¹gÀĪÀÅ¢®è CAzÀgÉ ¸ÀjAiÀÄ®è.
In the cross-examination P.W.1 has admitted the suggestion put by the counsel for the defendants that "¤.¦.1 PÀæAiÀÄzÀ PÀgÁj£ÀAvÉ zÁªÁ ¸ÀéwÛ£À°è ¨ÁrUÉUÉ EgÀĪÀªÀg£À ÀÄß SÁ° ªÀiÁr¹ 3 ªÀµÀðzÉƼÀUÉ zÁªÁ ¸ÀéwÛ£À ¸Áé¢üãÀªÀ£ÀÄß £À£ÀUÉ PÉÆqÀĪÀÅzÁV £ÀªÀÄÆ¢¸À¯ÁVgÀÄvÀÛzÉ CAzÀgÉ ¸Àj. ¥ÀæwªÁ¢UÀ¼ÀÄ ¤.¦.1 PÀæAiÀÄzÀPÀgÁjUÉ ¸À»AiÀÄ£ÀÄß ºÁUÀÆ ºÉ¨Én â Ö£À UÀÄgÀÄvÀ£ÀÄß ªÀiÁrgÀÄvÁÛgÉ CAzÀgÉ ¸Àj."
D.W.1 in his cross-examination has admitted that, "¤.¦.1 gÀ°ègÀĪÀ J¯Áè ¸À»UÀ¼ÀÄ ºÁUÀÆ ºÉ¨Én â Ö£À UÀÄgÀÄvÀÄUÀ¼ÀÄ £À£ÀßzÀÄ ºÁUÀÆ 2£Éà ¥ÀæwªÁ¢ £À£Àß ºÉAqÀwAiÀÄzÁVgÀÄvÀÛzÉ CAzÀgÉ ¸Àj."
From the above said evidence of P.W.1, D.W.1 and also from the documents produced by the plaintiff it is clear 14 O.S.No.871/2013 that the 1st defendant has executed an agreement of sale at Ex.P-1 in favour of the plaintiff and agreed to sell the suit schedule property in favour of the plaintiff for a sale consideration of Rs.20,00,000/- and received an advance sale consideration amount of Rs.16,00,000/- from the plaintiff. Further it is very clear that the 1st defendant has agreed to execute the registered sale deed in favour of the plaintiff in respect of the suit schedule property within 3 years from the date of execution of agreement of sale at Ex.P-1.
9. One Sumathi and Devaraj alleged to be the attesting witnesses at Ex.P-1 agreement of sale have been examined as P.W.2 and P.W.3. P.W.2 and P.W.3 in their evidence have deposed that, the plaintiff and the 1st defendant have entered into agreement of sale on 11.01.2010 in respect of the suit schedule property. Further P.W.2 and P.W.3 have deposed that 1st defendant has agreed to sell the suit schedule property in favour of the plaintiff for Rs.20,00,000/- and received an advance sale consideration amount of Rs.16,00,000/- from the plaintiff. Further P.W.2 and P.W.3 have deposed that, the 1st defendant has agreed to receive the balance sale consideration amount of Rs.4,00,000/- at the time of registration of the sale deed.
15 O.S.No.871/2013P.W.2 and P.W.3 have identified their signatures at Ex.P-1 as per Ex.P-1(c) and Ex.P-1(d). Further P.W.2 and P.W.3 have identified the signature of the plaintiff and defendants as per Ex.P-1(e), Ex.P-1(a) and (b). P.W.2 in his cross- examination has denied the suggestion put by the counsel for the defendants that, "£Á£Éà zÁªÁ ¸ÀévÀÛ£ÀÄß 1£Éà ¥ÀæwªÁ¢AiÀÄÄ ªÁ¢UÉ ªÀiÁgÁl ªÀiÁqÀĪÀ §UÉÎÉ ªÀÄzÀså¹ÜPÉAiÀÄ£ÀÄß ªÀ»¹PÉÆArzÀÝjAzÀ £Á£ÀÄ PÀæAiÀÄzÀ PÀgÁjUÉ ¸ÁQëAiÀÄVgÀÄvÉÛÉÃ£É CAzÀgÉ ¸ÀjAiÀÄ®è."
From the above evidence of P.W.2 and P.W.3 it is very clear that the 1st defendant has executed an agreement of sale at Ex.P-1 on 11.01.2010 in respect of the suit schedule property and agreed to sell the suit schedule property in favour of the plaintiff for Rs.20,00,000/- and received an advance sale consideration amount of Rs.16,00,000/- from the plaintiff and agreed to receive the balance sale consideration amount of Rs.4,00,000/- at the time of registration of the sale deed. Further it is clear that, the 1st defendant has agreed to execute the registered sale deed in favour of the plaintiff in respect of the suit schedule property within 3 years from the date of execution of agreement of sale.
16 O.S.No.871/201310. On the other hand, 1st defendant has been examined as D.W.1 in support of their case. D.W.1 in his evidence has deposed that, he has not executed agreement of sale dated 11.01.2010 as per Ex.P-1 for Rs.20,00,000/- in favour of the plaintiff in respect of the suit schedule property and he has not received Rs.16,00,000/- towards sale consideration. Further D.W.1 has deposed that, he has obtained loan from the financier through the plaintiff and at that time the plaintiff has obtained his signature to the blank stamp papers and concocted the same as suit document at Ex.P-1 agreement of sale. D.W.1 in his cross- examination has admitted that, the signature found on Ex.P-1 agreement of sale is his signature. Further D.W.1 in his cross-examination has admitted that, "¤.¦.1 gÀ°ègÀĪÀ J¯Áè ¸À»UÀ¼ÀÄ ºÁUÀÆ ºÉ¨ÉânÖ£À UÀÄgÀÄvÀÄUÀ¼ÀÄ £À£ÀßzÀÄ ºÁUÀÆ 2£Éà ¥ÀæwªÁ¢ £À£Àß ºÉAqÀwAiÀÄzÁVgÀÄvÀz Û É CAzÀgÉ ¸Àj."
From the above evidence of D.W.1 also it is very clear that, the 1st defendant has executed an agreement of sale at Ex.P-1 in favour of the plaintiff and agreed to sell the suit schedule property in favour of the plaintiff for a sale consideration of Rs.20,00,000/- and received an advance amount of Rs.16,00,000/- from the plaintiff. Further it is clear that, the 1st defendant has agreed to execute the 17 O.S.No.871/2013 registered sale deed in favour of the plaintiff in respect of the suit schedule property within 3 years from the date of execution of agreement of sale at Ex.P-1.
Therefore, from the oral and documentary evidence on record, the plaintiff has clearly proved that the 1st defendant has executed an agreement of sale on 11.01.2010 in favour of the plaintiff in respect of the suit schedule property and agreed to sell the suit schedule property for Rs.20,00,000/- and received an advance sale consideration amount of Rs.16,00,000/- from the plaintiff and agreed to execute the registered sale deed in respect of the suit schedule property within 3 years from the date of execution of agreement of sale. Further from the evidence on record it is clear that, the 1st defendant has failed to prove that, he has issued 10 blank signed cheques and two signed blank stamp papers in favour of the plaintiff. Further the 1st defendant has failed to prove that, he has borrowed loan of Rs.1,00,000/- from the plaintiff and he has repaid the said amount with interest to the plaintiff as contended by him. Therefore, the plaintiff has proved the issue No.1, and the 1st defendant has failed to prove the issue No.4, accordingly, I answer issue No.1 in the AFFIRMATIVE and issue No.4 in the NEGATIVE.
18 O.S.No.871/201311. ISSUE No.2 AND 3 : The plaintiff has contended that he was always ready and willing to perform his contract, but the 1st defendant has failed to perform their part of contract. P.W.1 in his evidence has deposed that he is ready to pay the balance consideration amount to the defendant and ready to get the sale deed registered in his name. The plaintiff has issued legal notice to the defendant as per Ex.P-2 dated 29.01.2012 calling upon the 1st defendant to receive the balance sale consideration amount of Rs.4,00,000/- and to execute the registered sale deed in his favour. On perusal of Ex.P-1 agreement of sale dated 11.01.2010, it is mentioned that the 1st defendant has agreed to execute the registered sale deed in favour of the plaintiff in respect of the suit schedule property within three years from the date of execution of the agreement of sale. Further, from Ex.P-1 agreement of sale, it is clear that the 1st defendant has received advance sale consideration of Rs.16,00,000/- from the plaintiff. From the oral evidence of P.W.1 and also the documents produced by the plaintiff it is clear that plaintiff has failed to prove that he was always ready and willing to perform his part of contract as per the terms of the agreement of sale. Further the plaintiff has failed to prove that, the 1st defendant has failed to perform his part of the contract as contended by him. Therefore, 19 O.S.No.871/2013 the plaintiff has failed to prove issue No.2 and 3. Hence, issue No.2 and 3 are answered in the NEGATIVE.
12. ISSUE No.5 : As discussed above, the plaintiff has clearly proved that the 1st defendant has executed agreement of sale at Ex.P-1 for Rs.20,00,000/- in respect of the suit schedule property in favour of plaintiff and received advance sale consideration amount of Rs.16,00,000/- from the plaintiff. Therefore, the plaintiff is entitled to the refund of said amount of Rs.16,00,000/- from the 1st defendant. Therefore, this suit deserves to be decreed in part. Accordingly, issue No.5 is answered partly in the AFFIRMATIVE.
13. ISSUE No.6 : In view of my findings on issue No.1 to 5 and for the reasons stated therein, I proceed to pass the following:
O R D E R The suit is hereby decreed in part with the following terms:
The plaintiff is entitled to refund of Rs.16,00,000/- with interest at 9% P.A. from the date of execution of agreement of sale till the date of realization from the 1st defendant.20 O.S.No.871/2013
The relief sought by the plaintiff in respect of the execution of registered sale deed by the 1st defendant in favour of the plaintiff in respect of suit schedule property is hereby refused.
This suit against the defendant No.2 stands dismissed.
Decree shall be drawn accordingly. (Dictated to the Judgment Writer directly on the Computer, corrected and then pronounced by me in the open court, on this the 30th day of October 2018).
(M.H.Shantha) IX Addl. City Civil & Sessions Judge, Bangalore.
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ANNEXURE List of witnesses examined on behalf of plaintiff :
P.W.1 Balaji P.W.2 Sumathi P.W.3 S.Devaraj
List of documents exhibited on behalf of plaintiff :
Ex.P.1 Agreement of sale
Ex.P.2 Legal notice
Ex.P.3 &
21 O.S.No.871/2013
Ex.P.4 Postal receipts
Ex.P.5 Postal acknowledgment
Ex.P.6 Returned postal cover
Ex.P.7 Certified copy of sale deed
Ex.P.8 Khatha extract
Ex.P.9 &
Ex.P.10 Encumbrance certificates
List of witnesses examined on behalf of defendant :
D.W.1 M.Ravi List of documents exhibited on behalf of defendant :
Ex.D.1 Letter
Ex.D.2 Loan defaulter list
Ex.D.3 Account extract
Ex.D.4 Notice copy
Ex.D.5 Reply notice
Ex.D.6 to
Ex.D.8 Postal receipts
Ex.D.9 &
Ex.D.10 Postal acknowledgment
Ex.D.11 to
Ex.D.14 Agreement of lease
IX ADDL.CITY CIVIL JUDGE
BANGALORE