Bangalore District Court
Sri.V.Ashok Kumar vs Sri.G.Ganesh Rao on 4 June, 2016
IN THE COURT OF XVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (C.C.H.16)
Present: Sri. Ravindra Hegde,
M.A., LL.M.
XVII Addl. City Civil & Sessions Judge.
Dated this 4th Day of June, 2016
O.S.No. 2862/2009
Plaintiffs : 1. Sri.V.Ashok Kumar,
S/o Veerappa,
Aged about 32 years.
R/at No.249, 17th Main Road,
27th Cross Road, 2nd Block
Rajajinagar, Bengaluru - 10
2. Stm. Archana Anandkumar,
D/o Veerappa,
W/o Anandkuamr
Aged about 41 years.
R/at No.12, 3rd Floor,
'Banashankari Nilaya',
N.H.C.S. Layout, Basaveshwara
Nagar, Bengaluru - 79
[By Sri.D.Prabhakar, Adv.]
-Vs-
Defendants : 1. Sri.G.Ganesh Rao
S/o late Govindappa
Aged about 46 years,
2. Smt.Shakuntala G.Rao
W/o G.Ganesh Rao
Aged about 44 years,
Both are R/at No.312[312/4],
6th Main, Mahalakshmi Layout,
Bengaluru -560 086.
[By Sri. K.V., - Adv.]
2 OS.No.2862/2009
Date of institution of the suit 22.04.2009
Nature of the suit Specific performance
Date of commencement of 05.12.2015
recording the evidence
Date on which the judgment 04.06.2016
was pronounced
Total duration Years Months Days
07 05 13
(Ravindra Hegde),
XVII Addl. City Civil & Sessions Judge.
********
JUDGMENT
This suit is filed by the plaintiffs for specific performance of the agreement of sale dated 8.9.2008 and to direct the defendants to execute the sale deed in favor of the plaintiffs in respect of the suit property by receiving the balance consideration amount of Rs.60,00,000/- and to deliver vacant possession of the suit property and if the defendants fail to execute the sale deed, then to get the sale deed executed through process of the court and in the alternative, the plaintiffs have prayed for refund of the amount of Rs.2,00,00,000/- [Rupees Two Crores only] along with 25% additional amount towards the quantified damages and interest at the rate of 24% p.a. from the date of 3 OS.No.2862/2009 agreement till the date of payment and for permanent injunction restraining the defendants from alienating the suit property.
2. The brief facts of the plaintiffs' case is that, the plaintiff No.2 is represented by her power of attorney plaintiff No.1. The defendants are husband and wife and are the absolute owners of the suit property. The defendants have offered to sell the suit property to the plaintiffs for Rs.2,60,00,000/- and the plaintiffs have agreed to purchase the same for this amount. On 8.9.2008, the plaintiffs and defendants have entered into an agreement of sale in respect of the suit property and on the date of agreement, Rs.60,00,000/- has been paid to the defendants as advance sale consideration amount. The defendants have acknowledged the receipt of the amount. The plaintiffs had agreed to pay the balance amount of Rs.2 Crores to the defendants at the time of registration of the sale deed. The plaintiffs have verified the records of the suit property. The suit property was originally allotted in favour of G.H.Adirajaiah by B.D.A. As Adirajaiah died, the property was transferred in the name of his wife Smt.Pushpa Adirajaiah and transfer agreement was also executed in her 4 OS.No.2862/2009 favour by B.D.A. Thereafter, the B.D.A. has executed the absolute sale deed in favour of Pushpa Adirajaiah on 6.12.1996. In the family partition entered into in the family of Pushpa Adirajaiah, the suit property has fallen to her share as per partition deed dated 8.9.2000. Therefore, Pushpa Adirajaiah was the absolute owner of the suit property and her name was appearing in the khatha extract. She has sold half portion of the property to Smt.Padmavathi by sale deed dated 6.11.2000 and another half portion to Smt.Susheelamma by sale deed dated 15.12.2000. After purchasing the property, Smt.Padmavati and Smt.Susheelamma have obtained joint khatha in their name. Smt.Padmavati and Smt.Susheelamma have sold the suit property to Ramesh Madavan and Smt.Premalatha by registered sale deed dated 16.6.2003. On the basis of the sale deed, the purchasers' name is entered in the revenue records. Thereafter, Ramesh Madavan and Smt.Premalatha have sold the suit property to the defendants by sale deed dated 18.10.2006. Accordingly, the name of the defendants is entered in respect of the suit property in the BBMP records. The defendants have acquired the suit property by sale deed and are in possession and enjoinment of the same. The defendants have handed over the records of the suit property. 5 OS.No.2862/2009 As per the agreement, the defendants were required to execute the sale deed within 4 months from the date of agreement, but due to personal problems, the defendants approached the plaintiffs and requested for extension of time and agreed to execute the sale deed on or before 24.4.2009. The defendants approached the plaintiffs and requested to pay Rs.1 Crore as further advance and accordingly, on 7.10.2008, Rs.1 Crore has been paid by the plaintiffs and the defendants have duly acknowledged the receipt by endorsing on the agreement of sale. The 1st plaintiff has drawn the said amount of Rs.1 Crore from his savings bank account in Union Bank of India. Thereafter, the defendants demanded to pay further advance of Rs.40,00,000/- on 7.12.2008. This amount is also paid. Therefore, in total Rs.2 Crores has been paid by the plaintiffs. Thereafter in spite of several requests and approaches made by the plaintiffs, the defendants have not come forward to execute the sale deed by receiving the balance consideration amount of Rs.60,00,000/-. The plaintiffs are always ready and willing to perform their part of contract. On 16.4.2009, the plaintiffs approached the defendants and requested them to receive the balance consideration amount and to register the sale deed. The defendants have postponed the date for registration of the 6 OS.No.2862/2009 sale deed and promised that they will register the sale deed on 20.4.2009. The plaintiffs, came to know that the defendants are discussing the sale of the suit property to third parties. With these averments, the plaintiffs have filed this suit for specific performance.
3. The defendants have filed the written statement and contended that the suit is not maintainable and stated that the plaintiffs have suppressed the true facts and there is no cause of action to the suit. The defendants have denied that there is an agreement of sale entered into between the plaintiffs and the defendants for sale of the suit property for Rs.2,60,00,000/-. The defendants have stated that they never handed over the title deeds in respect of the suit property. It is stated that the title deeds had been mortgaged with the nationalized bank and hence the question of giving title deeds to the plaintiffs does not arise. The defendants have stated that the transaction took place between the plaintiffs and defendants for hand loan and no any transaction in respect of the sale of the suit property has taken place. It is stated that the defendants have paid the entire amount along with interest to the plaintiffs and now the plaintiffs have created a forged document as agreement of 7 OS.No.2862/2009 sale. The defendants have stated that as the plaintiffs are seeking specific performance of the contract in respect of the immovable property if really any such agreement was entered into between the parties, it is the duty of the plaintiffs to issue statutory notice calling upon the defendants to execute the registered sale deed. In this case, there is no statutory notice as required under law has been given. As such, the readiness and willingness does not arise. The defendants have stated that they have never executed any agreement of sale in favour of the plaintiffs and it is only loan transaction, as such the suit is liable to be dismissed and the defendants are the absolute owners of the suit property. On these grounds, the suit is prayed to be dismissed.
4. On these pleadings, my learned Predecessor has framed the following Issues: -
1) Whether the plaintiffs prove that, on 8.9.2008, the defendants entered into an agreement of sale of the suit schedule property for Rs.2,60,00,000/- [Rupees Two Crores Sixty Lakhs only] and paid Rs.60,00,000/- [Rupees Sixty Lakhs only] as advance?
2) Whether the defendants prove that the plaintiff has forged the signatures?
3) Whether the plaintiffs prove that they always has been ready and willing to perform his part of contract?
8 OS.No.2862/2009
4) Whether the plaintiffs are entitled for relief as sought for?
5) What Order or Decree?
5. In support of the plaintiffs' case, PW.1 is examined. Ex.P1 to P19 are marked. The defendants have not lead any evidence.
6. Heard the arguments by the plaintiffs' counsel. The defendants have not addressed any arguments.
7. My answer to the above issues are as under:-
Issue No.1: In the Affirmative Issue No.2: In the Negative Issue No.3: In the Affirmative Issue No.4: In the Affirmative Issue No.5: As per final order, for the following:
REASONS
8. Issue No.1 to 4:- All these issues are taken together for discussion to avoid repetition.
9. The case of the plaintiff is that the suit property belong to the defendants and the defendants have agreed to sell the suit property to the plaintiffs for Rs.2,60,00,000/- and an agreement of sale was executed by the defendants in 9 OS.No.2862/2009 favour of the plaintiffs by receiving the advance amount of Rs.60,00,000/- on 8.9.2008. According to the plaintiffs, the defendants have received further amount of Rs.1,40,00,000/- from the plaintiffs towards further advance and have promised to execute the sale deed. But they have not come forward to execute the sale deed and they are making attempts to alienate the suit property. The defendants in the written statement have denied the execution of any agreement of sale in favour of the plaintiffs for sale of the suit property. They have admitted that they are the absolute owners of the suit property and contended that the agreement of sale is created and forged document. The defendants have also stated that there was hand loan transaction and the said hand loan is also cleared and there is no sale transaction between the parties. It is also contended that no notice was given as required by law seeking specific performance of the contract.
10. The plaintiff has given evidence as P.W.1 and has stated that plaint averments in his chief evidence. In his evidence, execution of the agreement of sale payment of consideration amount totaling to Rs.2 Crores to the defendants and readiness and willingness of the plaintiffs to 10 OS.No.2862/2009 get the sale deed executed are all stated by P.W.1. In spite of giving sufficient opportunity, P.W.1 is not cross-examined for the defendants. Therefore, the evidence of P.W.1 has remained unchallenged.
11. The plaintiffs have produced the G.P.A. executed by plaintiff No.2 in favour of plaintiff No.1 as Ex.P1. Agreement of sale dated 8.9.2008 in respect of the suit property has been produced as Ex.P2. It also contains the endorsements for making further advance on 7.10.2008 and 7.12.2008. The possession certificate in the name of G.H.Adirajaiah given by the B.D.A. and the transfer agreement, auction sale deed given by the B.D. A in the name of Pushpa Adirajaiah are all produced as Ex.P3 to P5. Memorandum of Partition in the family of Pushpa Adirajaiah is also produced as Ex.P6 which show that the suit property has fallen to the share of Pushpa Adirajaiah and assessment extract is produced at Ex.P7 to show that the suit property is standing in the name of Pushpa Adirajaiah. Two sale deeds executed by Smt.Pushpa in favour of Smt.Padmavati and Susheelamma are also produced at Ex.P8 and P9. Ex.P10 and P11 are the receipts for payment of tax. The sale deed executed by Smt.Susheelamma and Smt.Padmavati in favour 11 OS.No.2862/2009 of Ramesh Madavan and Premalatha is produced as Ex.P12. Khata extract and tax paid receipt are produced as Ex.P13 and P14 to show that the name of Ramesh Madavan and Premalatha is entered on the basis of the sale deed. The sale deed executed by Ramesh Madavan and Premalatha in favour of the defendants on 18.10.2006 is produced as Ex.P15. Ex.P16 is the khata certificate. Ex.P17 is the khata extract and Ex.P18 is the water charges paid receipt and Ex.P19 is the encumbrance certificate. The sale deeds and partition deed produced by the plaintiffs are laminated documents. The defendants have not lead any evidence and not produced any documents.
12. On looking to the pleadings, evidence and documents produced, the case of the plaintiffs is that the defendants are the absolute owners of the suit property and they have agreed to sell the suit property to the plaintiffs and executed agreement of sale as per Ex.P2. The documents produced by the plaintiffs in Ex.P4 to P8 show that this property was allotted to Adirajaiah by B.D.A. and on his death, auction sale deed was executed by B.D.A. in favour of his wife Pushpa and in the family partition, the suit property has come to the share of Pushpa and her name was entered 12 OS.No.2862/2009 in the property records. The documents at Ex.P9 and P10 show that the suit property has been sold by Pushpa in favour of Smt.Padmavati and Susheelamma. Subsequently, Smt.Susheelamma and Padmavati have executed the sale deed in respect of the suit property on 16.6.2003 in favour of Rameh Madavan and Smt.Premalatha as per Ex.P12 sale deed. Ex.P13 show that the name of Ramesh Madavan and Smt.Premalatha was appearing to the suit property in the records of BBMP. The defendants have purchased this property by sale deed dated 18.10.2006 as per Ex.P15 from Ramesh Madavan and Smt.Premalatha. Ex.P16 and P17 show that the suit property is standing in the name of the defendants and khata is standing in their name. The encumbrance certificate produced at Ex.P19 also show that there is no subsequent transaction to the sale deed executed in favour of defendants.
13. These documents produced by the plaintiffs clearly show that the suit property which was allotted and sold by B.D.A. in favour of Pushpa Adirajaiah has been alienated by her and then the purchasers have sold the property and finally by the sale deed dated 18.10.2006, the defendants have become the absolute owners of the property. 13 OS.No.2862/2009 Even the defendants in the written statement have contended that they are the absolute owners of the suit property. According to the plaintiffs, the defendants have executed the agreement of sale as per Ex.P2 by agreeing to sell the suit property to the plaintiffs for Rs.2,60,00,000/-. Ex.P2 agreement show that the defendants have agreed to sell the suit property to the plaintiffs for Rs.2,60,00,000/-. The defendants though in the written statement have denied the execution of the agreement of sale and contended that it is a forged document, have not produced any materials to show that Ex.P2 document is a forged document. The defendants have not denied their signatures in Ex.P2 agreement. By the evidence of P.W.1 and by producing Ex.P2 and also the other documents, the plaintiffs have proved the execution of agreement of sale by the defendants as per Ex.P2.
14. Though the defendants have contended that there was hand loan transaction between the plaintiffs and the defendants, no details are given by the defendants to prove such hand loan transaction. Moreover, the defendants have stated that they have cleared the alleged loan and no such materials are produced by the defendants. The evidence of P.W.1 is uncontested and the documents are not disputed by 14 OS.No.2862/2009 the defendants by cross-examining P.W.1. Therefore, the plaintiffs are successful in proving the execution of the agreement of sale for sale of the suit property. The documents produced by the plaintiffs show that the defendants are the absolute owners of the suit property and they have agreed to sell the suit property for Rs.2,60,00,000/- and to execute the sale deed as per Ex.P2.
15. According to the plaintiffs, subsequently, the defendants got extended the period for execution of the sale deed and have demanded further advance amount and accordingly, Rs.1 Crore has been paid by the plaintiffs on 7.10.2008 and another Rs.40,00,000/- has been paid on 7.12.2008. The endorsements are appearing in Ex.P2 on the back page of page 1 and 2. The defendants have also not disputed these endorsements by contesting the matter. Therefore, the payment of even further consideration amount of Rs.1,40,00,000/- has been established in this case. There are absolutely no materials placed by the defendants to show that this agreement of sale relied by the plaintiffs is a forged document. By the uncontested evidence and undisputed documents, the plaintiffs have proved the agreement of sale and also proved the payment of advance amount totaling up 15 OS.No.2862/2009 to Rs.2 Crores. The defendants in the written statement have contended that if the plaintiffs had entered into an agreement of sale, the plaintiffs would have given notice seeking execution of the sale deed. But the plaintiffs have stated that they have orally requested the defendants to execute the registered sale deed and the defendants have even agreed to execute the sale deed, but thereafter they have not executed the sale deed and then the plaintiffs have approached the court. Hence, it is not necessary for the plaintiffs to give notice to the defendants before filing the suit for specific performance. Under such circumstances, the admission in the written statement about demand made by the plaintiffs for execution of the sale deed and readiness expressed by the plaintiffs for payment of remaining consideration amount and to get the sale deed executed, sufficiently established in this case and it is sufficient for seeking specific performance of the contract by the defendants.
16. The leaned counsel for the plaintiff has relied on the decision of the Hon'ble Supreme Court reported in 2011(5) KCCR SN 508 [SC] - J.P.Builders and another Vs. A.Ramadas and another, in which the Hon'ble Supreme Court has held that the 'ready' and 'willingness' imply that 16 OS.No.2862/2009 the person was prepared to carry out the terms of the contract. The distinction between 'readiness' and 'willingness' is that the former refers to financial capacity and the later to the conduct of the plaintiff wanting performance. Generally readiness is backed by willingness. Plaintiffs have stated that they are having sufficient amount and are ready amount for payment of balance consideration to the defendants. This is not disputed by the defendants by contesting the matter. Therefore, the readiness and willingness of the plaintiffs to get the sale deed executed is also clearly established.
17. On going through the documents, uncontested evidence of P.W.1 and the pleadings, the plaintiffs are successful in proving the execution of the agreement of sale by the defendants and also payment of advance consideration amount and further consideration amount and also that the plaintiffs were always ready and willing to perform their part of the contract. As such the plaintiffs are entitled for specific performance of the contract. The contention of the defendants that the signature of the defendants has been forged on this agreement of sale is not established in this case. Accordingly, issue No.1 and 3 are answered in the affirmative and issue No.2 is answered in the negative. 17 OS.No.2862/2009
18. Issue No.4 :- The plaintiffs have proved the execution of the agreement of sale and also payment of advance consideration amount and they have also proved that the defendants are not executing the sale deed and the plaintiffs are always ready and willing to perform their part of the contract. Hence, plaintiffs are entitled for the relief of specific performance prayed in the suit. Accordingly, this issue is answered in the affirmative.
19. Issue No.5:- For the discussion made on the above issues, the suit of the plaintiff is to be decreed. Accordingly, following order is passed :-
ORDER The suit of the plaintiff is decreed with costs.
By decree for specific performance, the defendants are directed to execute the sale deed in favour of the plaintiffs in respect of the suit property in terms of agreement of sale dated 8.9.2008 by receiving the balance consideration amount of Rs.60,00,000/- within one month from today.
On the failure of the defendants to execute the sale deed, the plaintiffs are entitled to get the sale deed executed through the process of court. 18 OS.No.2862/2009
Draw decree accordingly.
(Dictated to the judgment writer, transcribed by him, corrected and then pronounced by me in the open court, on this the 4th day of June, 2016).
(Ravindra Hegde), XVII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for plaintiffs:
P.W.1 V.Ashok Kumar List of documents exhibited for plaintiffs:
Ex.P1 General power of attorney
Ex.P2 Agreement of sale dtd.8.9.2008
Ex.P3 Possession certificate
Ex.P4 Transfer agreement
Ex.P5 Auction sale deed
Ex.P6 Memorandum of partition
Ex.P7 Assessment extract
Ex.P8 Sale deed dated 6.11.2000
Ex.P9 Sale deed dtd.15.12.2000
Ex.P10 & 11 Tax paid receipts
Ex.P12 Sale deed dated 16.6.2003
Ex.P13 Khata extract
Ex.P14 Tax paid receipt
Ex.P15 Sale deed dated 18.10.2006
Ex.P16 Khatha certificate
19 OS.No.2862/2009
Ex.P17 Khatha extract
Ex.P18 Water charges paid receipt
Ex.P19 Encumbrance certificate
List of witnesses examined for defendants:
Nil List of documents exhibited for defendants:
Nil XVII Addl. City Civil & Sessions Judge, Bengaluru.