Bangalore District Court
Nandish Maruthi vs Nagaraju M on 5 August, 2025
KABC010298462022
IN THE COURT OF XXXV ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU (CCH-36)
DATED ON THIS THE 5th DAY OF AUGUST 2025
Present: Sri.J.V.Kulkarni, B.Sc., L.L.B.,
XXXV Addl. City Civil & Sessions Judge, Bengaluru.
O.S.No.7170/2022
Plaintiffs : 1. Nandish Maruthi,
S/o.Late B.Maruthi,
Aged about 38 years.
2. Smt.Jagadamba,
W/o.Late B.Maruthi,
Aged about 72 years.
Both are R/at: #1310, 2nd Cross,
24th Main, KHB Colony,
Govindarajanagar,
Bengaluru-560 079.
(By Sri.R.K., Advocate)
-Vs-
Defendants : 1. Sri.Nagaraju.M.,
S/o.Sri.N.Murthy,
Aged about 40 years.
2. Smt.Shwetha,
S/o.Nagaraju.M.,
Aged about 34 years.
Both are R/at No.38/1,
7th Cross, Saraswathipura,
2
O.S.No.7170/2022
Nandini Extension,
Bengaluru-560 096.
(By Sri.Vikas.M., Advocate)
****
Date of institution of the suit : 07-11-2022
Nature of the suit : Specific Performance
Date of commencement of 24-11-2023
recording of the evidence :
Date on which the judgment : 05-08-2025
was pronounced
Total duration : Years/s Month/s Day/s
02 08 26
(J.V.KULKARNI)
XXXV Addl.City Civil &
Sessions Judge, Bengaluru
JUDGMENT
This suit is filed by the plaintiff against the defendants for declaration that the termination notice dated 12-09-2022 and 21-10-2022 issued by the defendants are null and void and for specific performance of contract, dated 18-10-2021.
2. It is the case of the plaintiffs that the defendants are the owners and possessors of PID No.12-30-3, Block No.37, Jarakabande Kavalu, Nandini Extension, 7th Cross, 3 O.S.No.7170/2022 Saraswathipuram, Bengaluru, measuring East to West 40ft, North to South 30ft, bounded on East by road, West by property No.23, North by property No.37, South by site No.39. This property herein after referred as suit property for brevity.
The defendants put up an advertisement in Website OLX.com expressing their desire to sell the suit property. The plaintiffs were interested in purchasing the suit property, they collected the phone number of defendants directly talked with them. The defendants invited the plaintiff to physically verify the property. Accordingly, the plaintiffs visited the suit property and verified the primary documents by confirming the title of the defendants, they agreed to purchase the suit property. Accordingly, the negotiations were held between the plaintiff and defendants, an amount of ₹1,10,00,000/- was fixed as sale consideration amount. On the date of execution of Agreement of sale, the plaintiff has already paid ₹93,00,000/- under different modes and on 18-10-2021, the defendants have executed registered Agreement of Sale. The defendants agreed to receive the balance sale consideration amount and ready to execute the sale deed within three months.
4
O.S.No.7170/2022 At the time of entering into the Agreement of Sale, the defendants have not disclosed that they have availed loan of ₹70,00,000/- from Pragathi Co-operative Bank, Malleshwaram. When this fact was noticed by the plaintiffs, they contacted the defendants and insisted them to repay the loan. The defendants sought additional amount of ₹70,15,901/- for discharge of loan of Pragathi Co-operative Bank, Malleshwaram. The defendants agreed to repay the said amount after sometime, therefore, the plaintiffs cleared the loan availed by the defendants from Pragathi Co- operative Bank, Malleshwaram. The defendants have handed over original title documents to the plaintiff.
The plaintiffs contended that they are ready and willing to perform their part of contract. But, in the mean time, the defendants have issued the notices on 12-09-2022 and 21-10-2022 canceling the Agreement of Sale unilaterally.
It is the case of plaintiffs that the defendants handed over 4 post dated cheques to the plaintiffs for discharge of money of ₹70,15,901/- which is paid by the plaintiffs to the defendant for discharging the loan. The defendants did not kept their promise and not paid the amount payable to the plaintiffs. Therefore, the plaintiffs 5 O.S.No.7170/2022 initiated separate proceedings for recovery of money which is in addition to the amount mentioned in the Agreement of Sale. The defendants have received entire sale consideration amount and also they have borrowed the loan from plaintiffs, they are not entitle to cancel the Agreement of Sale and instead they are bound by the registered Agreement of Sale. Therefore, they sought to decree the suit.
3. The suit summons issued to the defendants. The defendants appeared through their counsels and filed written statement.
4. The sum and substance of written statement is that the defendants admitted that they have put an advertisement in OLX.Com for sale of the suit property. But, they have quoted price of ₹2,30,00,000/- for the suit property. They contended that they have not suppressed that they have availed loan from Pragathi Co- operative Bank, Malleshwaram, by mortgaging the property. They contended that the suit property is valuing more than ₹2,30,00,000/-. they never intended to sell it for ₹1,10,00,000/-. The said amount is mentioned in the Agreement of Sale only to avoid the legal 6 O.S.No.7170/2022 consequences. At the time of negotiations, the plaintiffs took responsibility of clearing the loans of defendants. When the plaintiffs have not discharged their part of contract, the defendants compelled to issue notice on 12-09-2022 and 21-10-2022 terminating the Agreement of Sale. In the said notices, the defendants have stated that the plaintiffs to handed over four cheques which was given by the defendants to the plaintiffs at the time of entering into Agreement of Sale.
5. The other contents of the plaint are categorically denied by the defendants. They sought counter claim to declare that the termination notice dated 12-09-2022 and 21-10-2022 are valid.
6. Based on the pleadings of the parties, My Predecessor in office has framed the following:-
1. Whether plaintiff proves that the termination of Sale Agreement 18-10-2021 with a notice dated 12-09-2022 is and 21-10-2022 is liable to be declared as null and void?
2. Whether the plaintiff proves that the defendant is liable to execute the sale agreement dated 18-10-2021?
3. Whether the plaintiff is ready and willing to perform his part of contract on the date of agreement till filing the suit?7
O.S.No.7170/2022
4. Whether the defendant proves that the the defendants have legally terminated the sale agreement with a notice dated 12-09-2022 and 21-10-2022?
5. Whether plaintiff is entitle for the reliefs as claimed in the plaint?
6. Whether the defendant is entitle for the relief claimed under the counter claim?
7. What Order or Decree?
7. The trial commenced. The plaintiff No.1 examined as P.W.1. Exs.P.1 to P.5 were marked by the plaintiffs, they closed their side.
8. The defendant Nos.1 and 2 were examined as D.W.1 and D.W.2, Exs.D.1 to D.14 were marked on behalf of the defendants, they closed their side.
9. I heard the arguments of learned counsel for the plaintiffs.
10. The learned counsel for the defendants have filed the written arguments along with following decisions:-
1. Manu/SC/8475/2008 in case of Alka Bose Vs.Parmatma Devi and others.
2. Judgment in Civil Revisions Petition No.568 of 2020(IO) between Shri Puttagangaiah and others 8 O.S.No.7170/2022 Shri G.Ravindrakumar.
3. Manu SC/04492024 in case of Sangita Sinha Vs.Bhawana Bhardwaj and Others.
11. The learned counsel for the plaintiffs have filed t following decisions:-
1. (2009)2 SCC 582 in case of Alka Bose Vs.Parmatma Devi and others.
12. My findings to the above issues are as follows:-
Issue No.1 : Affirmative
Issue No.2 : Affirmative
Issue No.3 : Affirmative
Issue No.4 : Negative
Issue No.5 : Affirmative
Issue No.6 : Negative
Issue No.7 : As per final order for the following:-
REASONS
13. Issue Nos.1 to 4:- Since these issues revolving around the execution of Agreement of Sale, termination of Agreement of Sale by the defendant. Therefore, in order to avoid the repeated discussions, all the issues are taken together for disposal.
The ownership of the defendants over the suit schedule property is not disputed, it is not disputed by the defendants that they have displayed an and advertisements in OLX.Com, expressing their 9 O.S.No.7170/2022 intention to sell the suit property. From these two admissions, it is evident that the defendants being the owners of the property are desirous of selling the suit property, but the consideration amount mentioned in Ex.P.1 is disputed.
14. According to the case of the defendants, the suit property is situated in prime locality, it is consisting of six houses in three floors. According to the plaintiffs, at he time of execution of Ex.P.1, the defendants have not disclosed about the mortgage of the suit property to Pragathi Co-operative Bank, Malleshwaram. In this regard, the learned counsel for the plaintiffs heavily relied upon the contents of Ex.P.1.
15. In Ex.P.1, the defendants have not disclose about mortgage of the property to Pragathi Co-operative Bank, Malleshwaram. In page No.2, para No.1, they simply stated that the suit property was purchased by the first defendant from Munilakshmamma through registered Sale Deed, dated 16-09-2017. Regarding the mortgage of the property, it is not stated in the Agreement of Sale that there is a charge created on the property. As per Section 55 of T.P.Act, there are certain responsibilities on 10 O.S.No.7170/2022 both the buyer and seller. The seller is bound to disclose to the buyer any material defect in in appropriate or in the seller title thereon. The allegation of the charge is stated in clause-'g' of Sub Section (1) of Section 55 of T.P.Act. According to it, the seller is bound to pay all the charges, encumbrances created on the property and also disclose about it. But, the learned counsel for he defendants relied upon Ex.P.2 to contend that before purchasing he property, the plaintiffs have gone through the encumbrance certificate which is marked as Ex.P.2, wherein, at Sl.No.6, it is clearly mentioned that on 18-1-2020, both the defendants have executed simple mortgage in favour of Pragathi Co-operative Bank, Malleshwaram, of ₹70,00,000/-. The Agreement of Sale executed in favour of the plaintiffs is on 18-10-2021.
16. According to the learned counsel for the defendants, the plaintiffs after going through the encumbrance certificate only agreed to purchase the suit property and undertakes to clear the loan availed by the defendants in the Co-operative Bank. According to the learned counsel for the defendants, the consideration amount is mentioned as ₹1,10,00,000/-in the Agreement of Sale. But, this line of argument was countered by the learned counsel for the plaintiffs 11 O.S.No.7170/2022 that on the ground that the defendants trying to bring the evidence which is coming in the ambit of Section 92 of Evidence Act. They are trying to state that the market value of the property as on the date of execution of Agreement of Sale is ₹2,30,00,000/-, whereas, in Ex.D.1 which is the document produced by the defendants, they have mentioned the sale consideration amount as ₹1,10,00,000/-.
17. During the argument, the learned counsel for the plaintiff contended that when there is categorical mention of sale consideration amount, the contention taken by the defendants regarding the actual market value of the property cannot be considered. During the cross-examination of P.W.1, the attempt was made by the advocate for defendants to suggest that the value of the property is ₹2,30,00,000/-.
18. In page No.11 of the cross-examination of P.W.1, he denied the suggestion of the defendants that the defendant accepts the sale of the suit property for ₹2,30,00,000/- which is displayed in OLX.Com Platform. The scree shot of the OLX Platform is not produced by the defendants to support their contention. 12
O.S.No.7170/2022
19. During the cross-examination, in page No.15, P.W.1 clearly stated that at the time of execution of the Agreement of Sale there is a Covid Pandemic, therefore, the property is available for lesser price.
20. The learned counsel for the defendants cross-examined the P.W.1 stating that the original consideration amount agreed between them is ₹1,80,00,000/-. Rs.70,00,000/- directly paid but the Pragathi Co-operative Bank by the plaintiffs and therefore, the consideration amount is mentioned as ₹1,10,00,000/- in the Agreement of Sale. But, his suggestion was specifically denied by the P.W.1. There are modes of proof that the sale consideration amount is ₹1,80,00,000/-. The defendants ought to have examined the two witnesses by name K.G.Nagaraj and Kumar J mentioned in Ex.P.1 to prove that the sale consideration amount is ₹1,80,00,000/- and not ₹1,10,00,000/- as mentioned in Ex.P.1.
21. Apart from it, according to advocate for plaintiff normally in order to evade the tax, the buyer and seller used to obtain two Agreement of Sales, one is for the sale consideration amount as per the guidelines value fixed by the Government for the purpose of 13 O.S.No.7170/2022 avoiding the stamp duty and another one is for the mutual purpose. If any such document executed by the plaintiffs admitting the sale consideration as ₹1,80,00,000/-, the said agreements could have produced by the defendants. The payment of ₹90,00,000/- by virtue of Ex.P.1 is admitted by both D.Ws.1 and 2 during their cross- examinations.
22. Statement of Account is produced and marked as Ex.P.3, wherein, there are entries to show that the sale consideration amounts are transferred to the Bank account of defendant No.1 on various dates mentioned in Ex.P.1. The existence of legal and family necessity is itself admitted by the defendants and it can also be seen from perusal of Ex.P.2. Regarding the termination of the Agreement of sale, two notices are produced by the plaintiffs. Both are marked as Exs.P.4 & P.5. In Ex.P.4, the defendants insisted the plaintiffs to perform their part of contract stating hat the plaintiffs are not ready to pay the remaining sale consideration amount. If they fails to pay the consideration within 10 days, Ex.P.1 will be treated as terminated.
14
O.S.No.7170/2022
23. During the argument, the learned counsel for the plaintiffs drew my attention to the contents of Ex.P.5. Ex.P.5 is the reply notice given by the defendants, wherein, the defendants clearly stated that the consideration amount is ₹1,10,00,000/- and they have received ₹90,00,000/-.
24. In para No.8 of the legal notice they have also stated that the balance sale consideration amount is ₹70,00,000/- and since the plaintiffs are not ready to pay the balance consideration amount, they are going to terminate the Agreement of Sale.
25. D.W.1 during the cross-examination in page No.10, para No.6 admitted that the plaintiffs have sent legal notice to him to execute the sale deed. He has also issued notice to the plaintiffs as per Ex.P.5. In subsequent lines, he stated that he has not mentioned in Ex.P.5 that the sale consideration amount is ₹1,80,00,000/- and the contents of Ex.P.5 are true. When there is a categorical admission on the part of the D.W.1, he cannot contend that the sale consideration amount is ₹1,80,00,000/- and the plaintiffs ought to have paid ₹87,00,000/- to him. There are legal 15 O.S.No.7170/2022 question raised by the advocate for plaintiffs regarding the unilateral termination of the Agreement of Sale by the defendants.
26. The learned counsel for the plaintiffs relied upon AIR 2009 SC 1527 in case Alka Bose Vs.Paramatma Devi and others and AIR 2025 SC 1806 in case of Sangita Sinha vs Bhawana Bhardwaj and others. Both Judgments are in respect of the specific performance of contract. In later decisions, at para No.30, the Hon'ble Supreme Court held that a bi-lateral agreement cannot be unilaterally cancelled by a party by returning earnest money. A bi-lateral Agreement can be cancelled either by Court of Law or by executing subsequent Agreement. The same decision in Alka Bose relied by defendants also.
27. In this case also, the defendants by issuing Ex.P.5 and Ex.D.5 cannot terminate the Agreement of Sale which is a registered document. The plaintiffs apart from paying ₹93,00,000/- at the time of execution of the Agreement of Sale have paid loan availed by the defendants from Pragathi Co-operative Bank, Malleshwaram. There is a delay caused in enforcement of contract because of the charge created on behalf of the defendants, they have not cleared the loan 16 O.S.No.7170/2022 from the consideration amount, they have received money from the plaintiffs as mentioned in Ex.P.1. Immediately, after receiving the consideration amount, if the defendants cleared the loan, the specific performance will be completed within three months as stipulated in Ex.P.1. The defendants are the cause for delay, they cannot blame the plaintiffs that they are not ready and willing to perform their part of contract. The sale consideration amount is completely paid and excess amount is also paid by the plaintiffs to the defendants for clearing of the loan. The issuance of legal notice by the plaintiffs as per Ex.P.4 is clearly indicates that the plaintiffs are always ready and willing to perform their part of contract. The defendants by contending that the sale consideration amount is ₹80,00,000/- which was agreed between them trying to postpone the execution of sale deed in order to make a wrongful gain. The escalation of the price during the subsistence of the Agreement of Sale is not a ground to deny the order of Specific Performance. Now, Section 20 of Specific Relief Act was substituted from the Statute Book. The discretion enjoyed by the Court prior to the amendment of Specific Relief Act is no more available. This is the subsequent agreement, therefore, the amended Provisions of Specific Relief Act are applicable to the case 17 O.S.No.7170/2022 on hand. Therefore, now, the Court has to decree for the reason that the Agreement is registered Agreement, the sale consideration amount is admitted by the D.W.1 and there is an admission in the form of Ex.P.5. Therefore, now, they cannot go beyond the contents of Ex.P.1 to claim the consideration amount as ₹1,80,00,000/-. Hence, Issue Nos.1 to 3 are answered in the affirmative, issue No.4 in the negative.
28. Issue No.5:- The plaintiffs having advanced consideration amount of ₹93,00,000/- having cleared the amount of ₹70,00,000/- which is available by the defendants from Pragathi Co-operative Bank, Malleshwaram are entitle to specific performance of contract. Hence, Issue No.5 in affirmative.
29. Issue No.6:- The defendants have sought counter claim in the written statement stating that they have legally terminated the Agreement of Sale by issuing two notices on 12-09-2022 and 21-10- 2022. In view of the Judgments referred above, when there is a bi- lateral registered Agreement, cancellation of Agreement of sale unilaterally is not allowed by the party. The two legal notices referred by the defendants have not legal sanctity and they cannot 18 O.S.No.7170/2022 terminate the legal notice by issuing legal notice. Hence, the defendants will not entitle for the reliefs claimed in the counter claim. Accordingly, I answer issue No.6 in the negative.
30. Issue No.7:- In view of my findings on the above issues, I pass the following:-
ORDER Suit of the plaintiffs decreed with costs.
The defendants are directed to execute Sale Deed in favour of the plaintiff in respect of the suit property.
The legal notice dated 12-09-2022 and 21-10-2022 are null and void.
Counter claim filed by the defendants is dismissed.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed and typed by her and then corrected and pronounced by me in the open court on this the 5 th day of July 2025) (J.V.KULKARNI) XXXV Addl.City Civil & Sessions Judge, Bengaluru.19
O.S.No.7170/2022 ANNEXURE WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFFS.
P.W.1 : Sri.Nandish Maruthi WITNESSES EXAMINED ON BEHALF OF THE DEFENDANTS.
D.W.1 : Sri.Nagaraju.M
D.W.2 : Smt.Shwetha.R
DOCUMENTS MARKED ON BEHALF OF THE PLAINTIFF.
Ex.P.1 : Original registered Agreement
for Sale dated 18-10-2021
Exs.P.1(a) : Signatures
to P.1(d)
Ex.P.2 : Encumbrance Certificate
Ex.P.3 : Statement of Account
Ex.P.4 : Office copy of Legal Notice
dated 11-10-2022
Ex.P.5 : Reply to legal notice
dated 21-10-2022
DOCUMENTS MARKED ON BEHALF OF THE DEFENDANTS.
Exs.D.1 : Photographs
to D.4
Ex.D.5 : Legal Notice, dated 12-09-2022
Exs.D.6 : Postal receipts
& D.7
20
O.S.No.7170/2022
Exs.D.8 : Postal covers
& D.9
Ex.D.10 : Certified copy of complaint in
C.C.No.314/2023
Ex.D.11 : Sworn Statement
Ex.D.12 : Legal notice dated 05-01-2023
Ex.D.13 : Pen drive
Ex.D.14 : Certificate under Section 65B of Indian Evidence Act.
JEEVAN Digitally signed by JEEVAN
KULKARNI
KULKARNI Date: 2025.08.18 17:32:38 +0530
(J.V.KULKARNI)
XXXV Addl.City Civil &
Sessions Judge, Bengaluru