Bangalore District Court
Somashekar vs Lt. Col. Appu Ramanand Sharma on 29 November, 2018
.R.P.67 Govt. of Karnataka
Form No.9(Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XII ADDL. CITY CIVIL JUDGE, AT
BENGALURU
Dated this the 29th day of November, 2018.
PRESENT: SRI. SATHISHA L.P., B.A.,LL.B.,
XII ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH.No.27), BENGALURU
O.S.No.5395/2011
PLAINTIFF : Somashekar,
S/o C. Jayaraj,
Aged about 39 years,
No.2223, 39th 'F' Cross,
4th 'T' Block, Jayanagar,
Bengaluru-560 041
(By Sri M.V.Jeevan Kumar, Advocate)
VS.
DEFENDANTS : 1. Lt. Col. Appu Ramanand Sharma
(Retd.)
S/o Late V.K. Swamy,
Aged about 76 years,
R/at No.619, 12th Main,
HAL II Stage, Indiranagar,
Bengaluru-560 038
2. Smt.Preethi Sharma
2 O.S.No.5395/2011
D/o Lt. Col. Appu Ramanand Sharma
Aged about 36 years,
R/at No.619, 12th Main,
HAL II Stage, Indiranagar,
Bengaluru-560 038
(By Sri S.V.G. Advocate)
Date of Institution of the suit : 26.07.2011
Nature of the suit : Suit for Specific Performance
Date of commencement of : 21.06.2016
recording of the evidence
Date on which the Judgment was : 29.11.2018
pronounced
Total Duration Years Months Days
07 04 03
(SATHISHA L.P.)
XII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGEMENT
The plaintiff has filed this suit against the defendants for the following reliefs:
"Wherefore the plaintiff most humbly prays that this Hon'ble Court be pleased to pass a judgment and decree:3 O.S.No.5395/2011
(a) Directing the defendant to accept the balance sale consideration of Rs.1,52,50,000 (One crore fifty two lakhs fifty thousand rupees only) and to execute the sale deed in respect of the schedule property and to deliver possession thereof failing which this Hon'ble Court may permit the plaintiff to deposit the entire amount upon the decree before this Hon'ble Court and this Hon'ble Court may execute sale deed in respect of the schedule property and also by delivering possession of the schedule property together with costs of the suit, and
(b) Pass such other orders as may be deemed appropriate under the circumstances of the case, in the ends of justice and equity."
2. The brief facts of the plaintiff's case is that, the defendant No.1 representing himself to be the owner of the suit schedule property and offered to sell the schedule property. One Smt. Pushpanjali Reddy had introduced the plaintiff to the defendant No.1 in relation to purchase of the suit schedule property and upon mutual negotiations, the property was agreed 4 O.S.No.5395/2011 to be purchased for total consideration of Rs.1,80,00,000/-. The term of understanding was reduced into writing as per the agreement of sale dated 02.09.2008 and the same was registered before the Sub-Registrar, Indiranagar, Bengaluru, as document No.INR-1-00544/2008-09 and stored in CD.INRD3. Under the agreement, the plaintiff had paid a sum of Rs.20,00,000/- as advance under the cheques referred to in the agreement and the balance sale consideration amount had to be paid at the time of registration of the sale deed. Clause 2 of the agreement contemplated that the transaction had to be completed within a period of 3 months, however, subject to the condition that the plaintiff would secure and produce the documents referred to in sub-clause (a) to (s). Though the documents had not been secured on 09.09.2008, the defendant No.1 had again approached the plaintiff seeking for further advance on the ground that the same was required to meet his exigencies. Though the plaintiff was ready to pay entire balance sale consideration, subject to compliance of clause 2, at the request of the defendant No.1, further sum of Rs.7,50,000/- was paid by 5 O.S.No.5395/2011 means of cheque bearing No.172853 drawn on Bank of India, V.V. Puram Branch, Bengaluru and a separate receipt also executed by the defendant No.1 in this regard. The defendant No.1 had specifically required to obtain no objection letter from his daughter and even a draft of the letter was given, so that the transaction could be completed, as the defendant No.1 was expressing that he was in a hurry to leave the country and to join his daughter. It was also represented by the defendant No.1 that he is intended to execute general power of attorney in the name of his friend Ramesh Rao after obtaining no objection from the daughter and the sale transaction could be completed through the power of attorney holder by paying balance sale consideration.
3. It is further contended by the plaintiff that, the defendant No.1 who is a greedy person has not secured the no objection letter and has not executed the registered sale deed as per the contract, despite the plaintiff was ready and willing to perform his part of contract. The plaintiff further contended that the defendant No.1 instead of complying the agreement terms, he 6 O.S.No.5395/2011 made allegations against the plaintiff that the agreement in dispute is obtained under the fraud, undue influence and misrepresentation. The plaintiff further contends that, since the defendant No.1 did not execute the sale deed, he got issued legal notice and as the defendant No.1 failed to comply legal notice, he is before Court for the reliefs above mentioned and he submits that he was always ready and willing to perform his part of contract and it is the defendant No.1 who is not ready to perform his part of contract.
4. After the service of suit summons, defendant No.1 appeared before Court by filing a detailed written statement narrating his defence. According to the defendant No.1, the plaintiff with the assistance of the people upon whom this defendant No.1 was depending, has secured the agreement by fraud, undue influence misrepresentation and taking undue advantage of the trust and confidence reposed by the defendant No.1 on the plaintiff. The plaintiff has exercised undue influence by playing fraud and has secured suit agreement and the consent 7 O.S.No.5395/2011 given by him under the agreement is not a free consent and he further contends that he has already transferred the property by gifting the same in favour of his daughter and hence the suit is not maintainable. His specific contention is that, the suit schedule property is worth about Rs.7,20,00,000/-. By playing fraud, misrepresentation and coercion, the plaintiff has entered into agreement for a meager amount and it is definite case of the defendant No.1 that, on the guise of registering the agreement, draft copy was shown and by noticing mistake, page No.3 of the agreement was cleverly replaced by getting signature on a blank paper. In the original draft the consideration amount of the suit schedule property was mentioned as Rs.7,20,00,000/-, and in the registered agreement, it was mentioned as Rs.1,80,00,000/- and he was not allowed to either contact his daughter or he was not allowed to peruse the agreement. With all other contentions, he seeks for dismissal of the suit.
5. After filing of the written statement, plaintiff impleaded defendant No.2, as defendant No.1 executed 8 O.S.No.5395/2011 registered gift deed in favour of defendant No.2 and she has also filed detailed written statement, almost all reiterating the contentions raised by defendant No.1.
6. Basing upon the pleadings, the following issues were framed:-
1. Whether plaintiff proves defendant entered into agreement of sale in respect of suit schedule property on 02.09.2008?
2. Whether plaintiff proves he has paid a sum of Rs.20,00,000/- to defendant as advance in sale consideration?
3. Whether plaintiff proves again as per request of defendant he has paid Rs.7,50,000/- to defendant on 09.09.2008?
4. Whether plaintiff proves defendant has executed supplementary agreement on 18.12.08 as contended?
5. Whether plaintiff was ever ready to perform his part of contract?
6. Whether suit is barred by law of limitation?
7. Whether defendant proves plaintiff hatched criminal conspiracy with an intention of cheating him to conclude transaction for Rs.1,80,00,000/-?9 O.S.No.5395/2011
8. Whether defendant proves he was informed by plaintiff that he would pay balance of Rs.7,00,00,000/-?
9. Whether plaintiff is entitled for the relief of specific performance of contract?
10. What decree or order?
7. In order to substantiate his contention, plaintiff himself examined as P.W.1 and his GPA holder is examined as P.W.2 and got marked Ex.P.1 to P.38. Ex.P.1 is original registered agreement dated 02.09.2008, Ex.P.2 is receipt dated 09.09.2008, Ex.P.3 is a supplementary agreement dated 18th December, 2008, Ex.P.4, P.5, P.6 and P.7 are registered post empty envelops, Ex.P.8 are RPAD receipts, Ex.P.9 is under certificate of posting, Ex.P.10 is RPAD cover containing legal notice issued by the counsel for the plaintiff to defendant No.1, Ex.P.11 is acknowledgment of IT return, Ex.P.12 is invoice, Ex.P.13 is ledger, Ex.P.14 is police notice, Ex.P.15 is RPAD cover, Ex.P.16 is police notice, Ex.P.17 is RPAD cover, Ex.P.18, P.19, P.20, P.21 are RPAD receipts, Ex.P.22 is letter dated 04.04.2014 written to Police Inspector, Indiranagar, Bengaluru by plaintiff, 10 O.S.No.5395/2011 Ex.P.23 is also letter dated 05.04.2014, Ex.P.24 is endorsement issued by the police, Ex.P.25 is postal cover, Ex.P.26 is police notice, Ex.P.27 is RPAD cover, Ex.P.28 is RPAD receipt, Ex.P.29 is office copy of legal notice issued to Police Inspector, Indiranagar, Bengaluru, Ex.P.30 is office copy of legal notice dated 09.12.2008 issued by counsel for plaintiff to the defendant No.1, Ex.P.31 is office copy of legal notice dated 26.08.2009, Ex.P.32 is bank details letter, Ex.P.33 is special power of attorney dated 23.10.2008, Ex.P.34 is also a SPA dated 19.12.2008, Ex.P.35 is deed of cancellation of special power of attorney dated 30.06.2011, Ex.P.36 is a letter dated 12.12.2008 by Sreevatsa Associates to counsel for plaintiff, Ex.P.37 is letter written by defendant No.1 to Commissioner of Police, Bengaluru and Ex.P.38 is letter dated 19.12.2008 written by defendant No.1 to plaintiff.
Defendant No.1 is examined himself as D.W.1 by filing chief-examination affidavit reiterating the contentions raised in his written statement and got marked Ex.D.1 to D.51. Ex.D.1 is certified copy of the order passed by Hon'ble High Court of 11 O.S.No.5395/2011 Karnataka in Writ Petition No.10014/2006, Ex.D.2 is certified copy of order passed in Criminal Petition No.3660/2004, Ex.D.3 is certified copy of the order passed by Hon'ble High Court in COMPA No.14/2009, Ex.D.4 is certified copy of order passed in the Company Appeal No.14/2011, Ex.D.5 is certified copy of order passed in Company Petition No.48/2011, Ex.D.6 is certified copy of the order passed in Writ Petition No.16883 & 17433/2012, Ex.D.7 is certified copy of the order passed in Criminal Petition No.6380/2012, Ex.D.8 is certified copy of the order passed in Criminal Petition No.4264/2009, Ex.D.9 is certified copy of the order passed in C.M.P. No.179/2010, Ex.D.10 is certified copy of the order passed in C.M.P. No.180/2010, Ex.D.11 is certified copy of the order passed in COMPA No.4/2013, Ex.D.12 is sale deed dated 30.04.2008, Ex.D.13 is sale deed dated 30.06.2008, Ex.D.14 is sale deed dated 04.08.2008, Ex.D.15 is sale deed dated 30.09.2009, Ex.D.16 is sale deed dated 07.11.2009, Ex.D.17 is sale deed dated 12.05.2011, Ex.D.18 is sale deed dated 19.05.2011, Ex.D.19 is sale deed dated 09.11.2012, Ex.D.20 is sale deed dated 20.05.2013, Ex.D.21 is sale deed 12 O.S.No.5395/2011 dated 02.08.2016, Ex.D.22 is sale deed dated 02.08.2016, Ex.D.23 is sale deed dated 18.01.2018, Ex.D.24 is sale deed dated 07.02.2018, Ex.D.25 to D.31 are all pertaining to air tickets, Ex.D.32 is a letter dated 24.11.2008 written by plaintiff to defendant No.1, Ex.D.33 is medical certificate, Ex.D.34 is also medical certificate, Ex.D.35 is death certificate of wife of defendant No.1, Ex.D.36, D.37 are passbooks, Ex.D.38, D.39 and D.40 are deposit certificates, Ex.D.41 is a letter dated 01.12.2008 written by defendant No.1 to plaintiff, Ex.D.42 is passbook, Ex.D.43 is sale deed, Ex.D.44 is a chit, Ex.D.45 is old medical records of defendant No.1, Ex.D.46 is affidavit of one Mr. Ramesh Rao, Ex.D.47 is affidavit of Pushpanjali Reddy, Ex.D.48 is affidavit of Anjali Reddy, Ex.D.49 is deed of revocation of GPA, Ex.D.50 and D.51 are Will.
8. The learned counsel for plaintiff Mr. DRR has vehemently argued that it is a registered agreement of sale wherein the defendant No.1 has executed the agreement by accepting the advance amount of Rs.20,00,000/- and he has not 13 O.S.No.5395/2011 complied the agreement terms and he has not handed over the documents as required under the agreement and he has also not obtained the no objection letter from his daughter and being a greedy person, he is not intending to perform his part of contract and with that intention, he has transferred the property by executing gift deed in favour of his daughter, but when the agreement is valid in law, the defendant No.2 will not acquire any sort of title over the property. During subsistence of the agreement, if the property is transferred, then transferee has holds the property as a trustee for the transferor and he referred the Trust Act in this regard. He further submitted that the defendant No.1 with ill motivation has lodged police complaints against the plaintiff. It is true fact that the property was agreed to be sold and purchased for a total consideration of Rs.1,80,00,000/- only and there is no misrepresentation, fraud, coercion and all these things and he has not taken proper defence available to the defendant under the Specific Relief Act. He cannot change his version from notice to defence, his different stands shows that he is not interested in performing the 14 O.S.No.5395/2011 agreement. He further contended that in view of the change in law, this suit is to be decreed as Specific Relief Act is changed and replaced by New Act and in view of the new Act, there is no discretion vests with the Court and if the agreement is proved, Court is bound to decree the specific performance of the contract, in view of Section 20 of the new Act. He further submitted that since it is a registered agreement, and as defendant No.1 admits the agreement, plaintiff is a person having sufficient financial assistance and he was ready and willing to perform his part of contract, hence he seeks that suit of the plaintiff is to be decreed by granting specific performance of the contract under the new Act. The learned counsel for plaintiff has also filed written arguments reiterating the contentions urged by him at the time of oral arguments and along with written arguments he has also submitted authorities.
9. The learned counsel for defendants at the outset of his arguments submitted that plaintiff is very powerful person having strong political background and he further submitted that 15 O.S.No.5395/2011 recently Chief Minister of State himself has made certain allegations against the plaintiff that he is trying to dismantle the Government in support of opposition leaders and he has also draw the attention of this Court that plaintiff is also known as Soma @ Gym Soma and he has contested MLA election from Sakaleshpura from a national political party. This background shows that how much he is influential and powerful. When he is capable of trying to dismantle the Government, he must be very powerful man. But his submissions are not having any documents before Court to support his contentions.
The learned counsel appearing for the defendants further contends that plaintiff got executed the agreement in dispute by exploiting the situation of the defendant No.1, he has not proved ready and willingness, the signature of the defendant No.1 was obtained on a blank stamp paper and the same was replaced in Ex.P.1, the defendant No.1 never intended to sell the property for Rs.1,80,00,000/-, the actual market value of the property is Rs.7,20,00,000/- as on the date of agreement. He submitted that 16 O.S.No.5395/2011 initially there was talks to out and outright sale of the property for Rs.7,20,00,000/- or the plaintiff offered to enter into joint development agreement by paying Rs.3,00,00,000/- and a house with car parking, but the defendant No.1 who lost his wife having no other relations in India, wanted to settle down at New Zealand with his daughter after selling the property for Rs.7,20,00,000/-. But the plaintiff, Pushpanjali Reddy, Madan Gopal, Ramesh Rao are all very cleverly managed to see that the signature of defendant No.1 to be obtained on a blank paper, later on the same was converted into sale agreement by replacing page No.3 and in the Sub-Registrar office, even defendant No.1 was not allowed to peruse the document. Later he came to know that Ex.P.1 is creation of fraud, misrepresentation and he never intended to sell the property for consideration mentioned in Ex.P.1. With other submissions, he sought for dismissal of the suit. He contends that present suit is to be adjudicated under the old Specific Relief Act only and he submits that though Specific Relief Act is a procedural law, but Section 20 of the Act is a substantive law and substantive law by way of any change in law 17 O.S.No.5395/2011 will operate from the prospective effect unless and until the intention of the legislature is made clear in this regard. The learned counsel for defendants also filed written arguments reiterating the contentions urged at the time of oral arguments and along with written arguments he has also submitted authjorities.
10. After hearing both parties on the issue of applicability of the Act, first of all it has to be considered the Specific Relief Act, 1963, as it is amended by the Act of 18 of 2018 by making some amendment to the Specific Relief Act, 1963 and as contended by the learned counsel for plaintiff, the entire Act is not replaced. By the Act of 18 of 2018 Specific Relief Amendment Act, 2018, only some amendment is made. In the amendment, Section 20 of the Act is replaced by new Section 20. The contention of the learned counsel for plaintiff that, the amendment to the Act is retrospective in nature, since the Specific Relief Act is a procedural Act, cannot be accepted for the reason, when legislature itself says when the Act is to be 18 O.S.No.5395/2011 brought into force. In the amendment, the legislature has made it clear that:
"It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision."
So it is clear that amendment was to be given effect from the prospective date, when it is published in the official Gazette. The amended Act was published in the Gazette on 01.08.2018. So when the legislature itself has made it clear that it has to be effected prospectively and not retrospectively, the application of new Section 20 of the Act will not arise, because this is a suit filed way back in 2011 and agreement was entered into on 02.09.2008. The amendment is not applicable, because the Act is not taking retrospective effect. Hence I am of the humble opinion that, present suit is to be considered under the old Section 20 of Specific Relief Act.
19 O.S.No.5395/2011
11. Now after hearing learned counsels of both sides, on perusal of the entire documentary and oral evidence, my findings to the issues are as under:
Issue No.1: In the negative Issue No.2: In the affirmative Issue No.3: In the affirmative Issue No.4: In the negative Issue No.5: In the negative Issue No.6: In the negative Issue No.7: In the affirmative Issue No.8: In the affirmative Issue No.9: In the negative Issue No.10: As per final order, for the following:-
REASONS
12. Issue No.1:- This is a suit for specific performance of the contract wherein, the plaintiff will be entitled only for the specific performance of the contract, if he is able to prove that the agreement is valid in law and it is fundamental and golden principle of civil trial that plaintiff should stand on his own legs, that means plaintiff has to prove his case and not win the case on 20 O.S.No.5395/2011 the weakness of other side. In this regard, I want to rely upon the decision rendered by Hon'ble High Court of Karnataka in Shri Bharatesh Balasaheb Kuppanatte and another vs. Shri Noorbabasab Peeraso Mantoorkar 2018 (3) KCCR 2175, wherein it is held that:
"Plaintiff has to win or lose the case on his own."
13. Admittedly, the suit is filed by the plaintiff against the defendants for the relief of specific performance of contract, on the strength of Ex.P.1, which is dated 02.09.2008. The very contention of the defendant No.1 is that, his consent is obtained by fraud, coercion, misrepresentation and he never intended to sell the property for the consideration mentioned in Ex.P.1, i.e., Rs.1,80,00,000/- but it was consideration of Rs.7,20,00,000/- and he has categorically taken a defence that in agreement draft it was mentioned as Rs.7,20,00,000/- and after his approval, the same was taken back stating that there is some mistake with respect to property number and to rectify the same, signature of the plaintiff and defendant No.1 was obtained on a blank paper, 21 O.S.No.5395/2011 i.e., page No.3 and the same was replaced. In this regard, when the defendant No.1 disputes his consent, then this Court has to examine the law relating to valid contract. So it is important to extract the relevant provisions of the Contract Act for the better understanding.
Section 10 of the Contract Act is as under:
"10. What agreements are contracts.- All agreements are contracts if they are made by the free consent of parties competent to contract, for lawful consideration and with a lawful object and are not hereby expressly declared to be void."
Section 11 of the Act is as under:
"11. Who are competent to contract.- Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject."
Section 13 of the Act is as under:
22 O.S.No.5395/2011
13. 'Consent' defined.- Two or more persons are said to consent when they agree upon the same thing in the same sense."
Section 14 of the Act is as under:
14. 'Free consent' defined.- Consent is said to be free when it is not caused by--
(1) coercion, as defined in Section 15, or (2) undue influence, as defined in Section 16, or (3) fraud, as defined in Section 17, or (4) misrepresentation as defined in Section 18, or (5) mistake, subject to the provisions of Sections 20, 21 and 22.
Section 15 of the Act is as under:
15. 'Coercion' defined.- 'Coercion is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement." Section 16 of the Act is as under:
23 O.S.No.5395/2011
"16. 'Undue influence' defined.- (1) A contract is said to be induced by 'undue influence' where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another--
(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other.
Section 17 of the Act is as under:
24 O.S.No.5395/2011
"17. 'Fraud' defined.- 'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:-
(1) the suggestion, as a fact, or that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it;
(4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares to be fraudulent.
Section 18 of the Act is as under:
"18. "Misrepresentation" defined.-
"Misrepresentation" means and includes--
(1) the positive assertion, in a manner not warranted by the information of a person making it, of that which is not true, though he believes it to be true;
(2) any breach of duty which, without an intent to deceive, gains an advantage of the person committing it or any one claiming under him, by misleading another to his 25 O.S.No.5395/2011 prejudice, or to the prejudice of any one claiming under him;
(3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement."
14. Section 55(5) of Transfer of Property Act, 1882 is also to be considered along with these provisions.
15. Now, let us consider one by one Section. Section 13 of the Contract Act defines what is consent. As per Section 13, consent is when two or more persons are said to consent when they agree upon the same thing in the same sense. This is to be applied to the facts and circumstances of the case. Now, the plaintiff says that the defendant No.1 has agreed to sell the property for the total consideration of Rs.1,80,00,000/-. At the same time, defendant No.1 disputes that he has not agreed to sell the property for Rs.1,80,00,000/-. As per the contention of defendant No.1, that talks were held to sell the property for Rs.7,20,00,000/- in the presence of Pushpanjali Reddy, Anjali Reddy and Ramesh Rao, and as per the talks, plaintiff agreed to purchase the property for total consideration of Rs.7,20,00,000/-. 26 O.S.No.5395/2011 In this regard he has issued a chit, which is produced at Ex.D.44. According to the defendant No.1, it is in the handwriting of the plaintiff and towards the transaction he has issued the said chit, wherein the consideration amount is mentioned as Rs.7,20,00,000/- and defendant No.1 has also produced Ex.D.12 to D.24 to show the value of the properties of HAL 2nd Stage, Indiranagar, Bengaluru, which is the area, the suit schedule property is also located. Ex.D.14 and D.15, which are dated 04.08.2008 and 03.09.2008, both are pertaining to the properties of HAL 2nd Stage, Bengaluru, which shows the consideration amount. The property covering under Ex.D.14 is totally measuring 485.49 square meters, which is sold for Rs.6,30,00,000/-. In Ex.D.15 the property is sold for Rs.4,00,00,000/-. In both sale deeds the market value of the property is more than Rs.10,000/- per sq. ft. If these two documents are considered along with Ex.D.44, it can be safely held that the market value of the suit schedule property is worth about Rs.7,20,00,000/-. At the same time, the plaintiff who is examined as P.W.1 before Court, has not produced a single 27 O.S.No.5395/2011 material to show that as on the date of agreement, the property was worth about Rs.1,80,00,000/- only. Admittedly, he is a builder, who definitely knows the value of the property. He has admitted during his cross-examination that he was a builder and relevant portion of the cross-examination of P.W.1 is that:
"£Á£ÀÄ D PÁ®PÉÌ, zÁªÁ¸ÀéwÛ£À ªÀiÁgÀÄPÀmÉÖ ¨É¯É JµÀÄÖ EzÉ JAzÀÄ £Á£ÀÄ w½zÀÄPÉÆArzÉÃÝ £É. DzÉà jÃw D PÁ®PÉÌ ¸ÀPÁðj UÉÊqï¯ÉÊ£ï ªÁå®Æå zÁªÁ¸ÀéwÛUÉ JµÀÄÖ EzÉà JAzÀÄ £Á£ÀÄ w½zÀÄPÉÆArzÉÝãÉ"
If it is to be appreciated, then plaintiff certainly knowing the value of the property has entered into agreement of sale and has issued Ex.D.44. If the value of the suit schedule property is only worth about Rs.1,80,00,000/-, then what prevented the plaintiff to produce those documents, the same has not been explained. If the consent would be valid consent, only if plaintiff and defendant have agreed for the transaction to the tune of Rs.1,80,00,000/-. But as per plaintiff, he has agreed to purchase the suit schedule property for Rs.1,80,00,000/-, at the same time, the defendant No.1 says that he has agreed to sell the property 28 O.S.No.5395/2011 for Rs.7,20,00,000/-, which is the market value of the property. So these difference of opinion itself shows that both the plaintiff and defendant No.1 have not consented the agreement upon the same thing in the same sense. So, I hold that consent is not valid one and in the absence of valid consent, the contract also not valid.
16. Coming to next Section 14 - free consent. As per Section 14 of the Contract Act, when consent is said to be free when the same is not given under coercion, undue influence, fraud or misrepresentation and all these things. Of course, though there is allegation of coercion, so far as Ex.P.1 is concerned, defendant No.1 has not proved the coercion. So far as undue influence is concerned, there is every possibility of undue influence being played on defendant No.1, because considering the circumstances of defendant No.1 and age, Ramesh Rao, Pushpanjali Reddy, and plaintiff might have influenced the defendant No.1 to enter into contract, because admittedly, defendant No.1 lost his wife very few months ago and 29 O.S.No.5395/2011 he was suffering from depression. The same is substantiated by the medical record produced by the defendant No1. Defendant No.1 is alone having no other persons was living in a room of his own house by taking the assistance of Ramesh Rao and his family. As per Section 16 (2) (b), where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness or mental or bodily distress, also said to be the undue influence. Here also, considering his age, he was 72 years as on the date of agreement and also he was suffering from mental depression and also he was suffering from sad demise of his wife. So, in this situation, he was depending on Ramesh Rao and his family, the agreement came into existence. If really, he was not influenced by these persons, then there will be no existence of contract. Even otherwise, considering the market value of the property as on the date of agreement, if Ramesh Rao, Pushpanjali Reddy, Anjali Reddy were aware of, they should have also cautioned the defendant not to sell the property for Rs.1,80,00,000/-. But here silence of those persons shows there is some sort of undue influence upon him, because 30 O.S.No.5395/2011 admittedly Pushpanjali Reddy introduced the plaintiff to the defendant No.1. Hence there is role of Pushpanjali Reddy, Ramesh Rao, Anjali Reddy and plaintiff upon making undue influence on the defendant No.1, otherwise, ordinary prudent man should not have entered into contract to sell the property which is worth about Rs.7,20,00,000/-, to sell the same to meager amount of Rs.1,80,00,000/-, unless and until if he is not influenced.
17. Next, coming to the aspect of fraud, Section 17 of Contract Act says that where one person or his agent or with the connivance with an intention to deceive other party, following acts also done, i.e., if the suggestion about the fact which is not true, by one who does not believe it to be true; active concealment of a fact by one having knowledge or belief of the fact; a promise made without any intention of performing it and any other act fitted to deceive.
18. Here also, as admitted by the plaintiff, he is the person in the real estate business, he must be knowing what is the real value of the property. Even if the defendant No.1 does 31 O.S.No.5395/2011 not knowing the value of the property, then the duty cast upon the plaintiff to mention what is the real value. But here by suggesting to defendant No.1 the worth of the property is Rs.1,80,00,000/-, he has committed fraud as defined U/Sec.17(1) and (2) of the Contract Act, because, even for a moment if we consider there was no talks for Rs.7,20,00,000/-, it was only for Rs.1,80,00,000/- and the same was reduced into writing as per Ex.P.1, then the plaintiff who is aware of the market value of the property, must have informed the worth of the property to the defendant No.1. His active concealment and also suggestion discloses that he has played fraud on the defendant.
19. Now, coming to the aspect of misrepresentation also, as per Section 18, it is stated above what is misrepresentation. Here also the plaintiff by misrepresenting the value of the property, has entered into agreement with the defendant No.1. It is to be observed that, Bengaluru now a days has become international hub for IT and other business where the land value is increasing day by day and the documents produced by the 32 O.S.No.5395/2011 defendant No.1 shows how the land value is increasing in a fast track manner. Ex.D.12, which was dated 30.04.2008 shows that value of the property in that area was Rs.14,450/- per sq. ft. Whereas Ex.D.24, which is dated 07.02.2018 shows the value of the property in that area is 32,150/- per sq. ft. It is to be noted that within a span of almost 10 years, the property value is more than 2½ times. The defendant No.1 has proved by producing the registered sale deeds of that area that during agreement time, the value of the property is more than Rs.1,80,00,000/-. So the plaintiff being a real estate person and builder wanted to take undue advantage of helpless condition and also age of the defendant No.1 and thereby has entered into contract and it is very much relevant to note the rights and liabilities of buyer and seller under the Transfer of Property Act. Section 55 deals with what is rights and liabilities of buyer and seller under the Transfer of Property Act. Sub-section (5) says the buyer is bound to disclose to the seller any fact as to the nature or extent of the seller's interest in the property or which the buyer is aware, but of 33 O.S.No.5395/2011 which he has reason to believe that the seller is not aware, and which materially increases the value of such interest.
20. Here, even for a moment, if we hold that defendant No.1 has entered into contract with the plaintiff to sell the property for Rs.1,80,00,000/-, not knowing the value of the property, then under Section 55(5) of Transfer of Property Act, the plaintiff was under the obligation to disclose what is the real value or market value of the property. He admits during his cross-examination that he was knowing what is guideline value of that property as on the date of agreement. But except his oral say he has not produced a single material before Court to show what was the value or guideline value of that property on the particular date. But the defendant No.1 who has taken much pain has produced several documents to show the market value of that area, which demolishes the version of the plaintiff. Hence from all these reasons, I can safely hold that the agreement entered into by the plaintiff and defendant No.1 is not proved, because it is not a valid agreement, as required under the Contract Act, 34 O.S.No.5395/2011 where the consent is not given in the same sense between the parties and there is no free consent of the defendant No.1, where undue influence, fraud and misrepresentation is played on the defendant No.1. Hence issue No.1 is held in the 'negative'.
21. Issue No.2:- The defendant No.1 himself admitted that plaintiff has paid Rs.20,00,000/- as advance by way of cheque as mentioned in the agreement. Hence it is not necessary to discuss in detail. Hence this issue is held in the 'affirmative'.
22. Issue No.3:- The defendant No.1 has admitted payment of Rs.7,50,000/- by the plaintiff. As it is admitted by the defendant No.1, it is not necessary to discuss in detail. Hence this issue is held in the 'affirmative'.
23. Issue No.4:- This issue is with respect to supplementary agreement dated 18.12.2008, which is marked as Ex.P.3. According to the plaintiff, the same is come into existence on 18.12.2008, because, earlier to that the defendant No.1 made several allegations of fraud and all these things and also lodged complaint to the police. Hence after further discussions, the 35 O.S.No.5395/2011 matter was settled amicably. Hence defendant No.1 by executing Ex.P.3- supplementary agreement has withdrawn the allegations made against the plaintiff. At the same time, the defendant No.1 submits that it is got executed by the plaintiff by coercion and also undue influence, because he submits that the plaintiff threatened him to lodge a false complaint against him and if police complaint is lodged, then he was not allowed to go to New Zealand. He was in the urgent need to join his daughter where he applied for permanent resident ship. Under that circumstance, even Ramesh Rao also advised the defendant No.1 to execute Ex.P.3. In such a situation, the same was executed under the threat and coercion. The defendant No.1 has produced voluminous documents to prove that the plaintiff is very influential person and he is having lot of criminal cases and once he was a rowdy sheeter. Ex.D.1 is order copy of the Writ Petition where the plaintiff has filed the Writ Petition to set aside the order of the concerned police to listing him as a rowdy sheeter. On perusal of Ex.D.1, it appears that there are six criminal cases against him and there was allegation that he is taking exorbitant interest and 36 O.S.No.5395/2011 also lodging criminal cases and on these allegations in view of the considered order and request, the police listed him in the rowdy sheeter and he has challenged the same before the Hon'ble High Court and Hon'ble High Court after considering the material on record and also the provisions of law has set aside the order. But the fact remains that, there were cases against him and the person once listed in the rowdy sheeter and a person who is aged about 36 years who is having well versed knowledge in the field of criminal law, against whom an allegation of fraud was made by a person who is aged about 72 years and can we expect such person go and approach defendant No.1 politely and requested him to execute Ex.P.3? And for his polite request, the same is executed? Admittedly, the defendant No.1 was in urgent need of going to New Zealand where his daughter is residing and in such a situation, if a complaint is lodged, definitely his travel will be halted. Under such situation, he has executed the Ex.P.3. Apart from that, the interesting thing as to Ex.P.3 is, Ex.P.3 is executed to enhance the time and also to withdraw the allegations made against the plaintiff. But it is an unregistered document. The first 37 O.S.No.5395/2011 thing is when the defendant No.1 makes specific allegation against the plaintiff that his consent to Ex.P.1 was obtained in a fraudulent manner and consideration amount is not Rs.1,80,00,000/-, and it was Rs.7,20,00,000/-, surprisingly, what is the exact consideration amount as per Ex.P.1, is not mentioned, it is avoided and the second thing is extension of time, why there is extension of time is not mentioned. If that is so, then definitely there will be specific mentioning of why agreement time should have been extended. Admittedly, since there is dispute with respect to consideration amount, definitely it should have been mentioned stating that what was the consideration amount. But avoiding of these things, shows that Ex.P.3 is not came into existence as stated by the plaintiff and it also his case that defendant No.1 was agreed to get no objection from his daughter. But that is not forthcoming either in the original agreement or in the supplementary agreement. It shows that Ex.P.3 is not come into existence as pleaded by the plaintiff. Even otherwise supplementary agreement dated 18.12.2008, which is Ex.P.3 is not a valid document, for the reason, it is 38 O.S.No.5395/2011 unregistered document to vary the terms and conditions of Ex.P.1, which is registered document. In support of my finding, I rely upon the decision reported in AIR 2018 Allahabad 252 (Smt. Shanti Mishra Vs. Samuel) wherein it is held that:
"Registration Act, S.17 - Specific Relief Act, S.20
- Registered agreement of sale - Terms of - Cannot be varied by unregistered document executed in future - Agreement cannot be enforced in respect of varied terms"
So, here also, Ex.P.1 is a registered document and the terms and conditions of the registered document cannot be varied by an unregistered document. Even otherwise, the plaintiff has not produced any proposition of law to show that it can be varied and it is also not in the terms and conditions of Ex.P.1, that agreement can be varied in future under an unregistered document. Hence issue No.4 is held in the 'negative'.
24. Issue No.5:- First of all, this is a suit for specific performance of the contract wherein he has to prove his ready and willingness to perform his part of contract. Both readiness 39 O.S.No.5395/2011 and willingness are different. Even if a party to the contract may be ready, but not willing to perform. Even if a party to the contract may be willing to perform his part of contract, but not ready. Both are to be viewed in a different manner. In this case, the first contention raised by the plaintiff is that, defendant No.1 was to get no objection from his daughter to complete the transaction and his contention cannot be accepted for various reasons. First, it is not the condition enumerated in Ex.P.1. Nowhere it is mentioned in Ex.P.1, to complete the transaction, defendant No.1 should get the consent letter from defendant No.2, i.e., his daughter. If the plaintiff is ready and willing to perform his part of contract, why he is insisting the no objection or consent letter from his daughter, in the absence of contract in existence. But anyhow, in the notice and pleading he has stated that as a diligent person he insisted no objection letter from the daughter of defendant No.1. Even for a moment, if daughter gives no objection letter, whether it is sufficient to transfer the rights of defendant No.2 is to be considered. Now, admittedly Ex.P.1 agreement is drafted by an advocate Mr. K.S.Madan Gopal. 40 O.S.No.5395/2011 When the agreement is being drafted by an advocate, it necessarily presumed that before drafting the agreement, the advocate has verified all the records pertaining to the property and in page No.2 of Ex.P.1, it is clearly mentioned that:
"Whereas the vendor is the sole and absolute owner of that Residential Property presently Municipal No.619, allotted by the Bangalore Development Authority, HAL II Stage, Indiranagar, Bangalore, PID No.74-1-619, hereinafter referred to as the "Said Property".
So, it means that before drafting the agreement, the advocate has verified all the documents of title of defendant No.1 with respect to suit schedule property. If he has come to the conclusion that it is a sole and absolute property of defendant No.1, then insisting of no objection certificate from his daughter does not arise at all. Even for a moment, if no objection letter is given, then it will not transfer the right, because, every transfer of right requires a registered document. Then, if plaintiff was intended to purchase the property including the rights of the daughter, i.e., defendant No.2, then he should have insisted 41 O.S.No.5395/2011 defendant No.1 to execute the sale deed along with his daughter and that apart even for a moment, if we consider that if defendant No.1 has to execute the sale deed by producing the consent letter of his daughter, then also valid transfer of title will not be effected, for the simple reason, plaintiff is insisting no objections from defendant No.2, assuming that she should not dispute the sale deed executed by defendant No.1 in future, contending that it is joint family property or ancestral property. Defendant No.1 cannot execute the sale deed along with consent letter, because defendant No.2 is already a major aged about 36 years and when she is major, she gets equal share in view of the decision "living daughter of a living coparcener" as held in Prakash vs. Phulavathi decision by the Hon'ble Supreme Court. When she gets full rights, the same cannot be transferred for family benefit or necessity, when she is major, by defendant No.1. In Ex.P.3 also this condition is not enumerated. The plaintiff has not explained why this condition was not inserted even in Ex.P.1 and also in Ex.P.3. What prevented him to insert the said condition, is not explained. During the cross- 42 O.S.No.5395/2011 examination, it was questioned to the plaintiff that whether he was ready to purchase the suit schedule property without the consent of defendant No.2, he says that:
"2£Éà ¥ÀæwªÁ¢AiÀÄ J£ïM¹ E®èzÉÃ, ¤ÃªÀÅ zÁªÁ¸ÀévÀÛ£ÀÄß PÀæAiÀÄPÉÌ ¥ÀqAÉ iÀÄ®Ä EZÉÑ ºÉÆA¢¢ÝÃgÁ CAzÀgÉ, £Á£ÀÄ D §UÉÎ £Á£ÀÄ «ZÁgÀ ªÀiÁr®è. 2£Éà ¥ÀæwªÁ¢ AiÀiÁªÀvÀÆÛ £À£ÀUÉ, £Á£ÀÄ J£ïM¹ PÉÆqÀÄvÉÃÛ £É JAzÀÄ ¨ÀsgÀªÀ¸É PÉÆnÖ®è"
25. Now, if the plaintiff is really intended to purchase the property with the consent of defendant No.2 also, then certainly he should have prayed this Court to direct defendant No.1 to get the consent of defendant No.2, at the time of filing the suit itself. Section 13 of Specific Relief Act, is extracted as under:
13. Rights of purchaser or lessee against person with no title or imperfect title.- (1) Where a person contacts to sell or let certain immovable property having no title or only an imperfect title, the purchaser or lessee (subject to the other provisions of this Chapter), has the following rights, namely:--43 O.S.No.5395/2011
(a) xx xx xx
(b) where the concurrence of other persons is necessary for validating the title, and they are bound to concur at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such concurrence, and when a conveyance by other person is necessary to validate the title and they are bound to convey at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such conveyance."
In view of this provision, even for a moment if the plaintiff wanted to get the sale deed executed by defendant No.1, who was under the apprehension that defendant No.2 may in future dispute the sale, then he should have filed this suit for a specific prayer seeking direction to the defendant No.1 to get the consent of the defendant No.2. Here from the inception of the suit itself till now, he has not made any effort to insert such a prayer in the plaint. He just impleaded defendant No.2 after filing of written statement by defendant No.1 mentioning that suit schedule property is transferred to her by way of gift. After impleading her also, he has not sought any sort of relief against defendant No.2. 44 O.S.No.5395/2011 This conduct of the plaintiff insisting no objection from defendant No.2, in the absence of specific agreement shows that he was not ready. The second contention of the plaintiff is that, the defendant No.1 has not produced the records for his inspection for preparation of the sale deed. But if we peruse Ex.P.1 dated 02.09.2008, a registered agreement of sale, in page No.4 the advocate who drafted the agreement has specifically mentioned what are the documents with details. He has mentioned that allotment letter issued to Ramamurthy and particulars thereof and he has mentioned particulars of various documents. So much of particulars would not have been mentioned in page No.4 of Ex.P.1, if those documents are not gone through by the advocate at the time of preparation of Ex.P.1. Even P.W.1 in his cross- examination has stated that after going through the records, his advocate advised him that defendant No.1 has marketable title, hence he entered into the agreement. When such being the case, the contention of the plaintiff that the defendant No.1 has not produced the documents, cannot be accepted. Even in Ex.P.3 also except extending time and also withdrawing the allegations made 45 O.S.No.5395/2011 against the plaintiff, why the time is extended is not mentioned and there is no specific mentioning that it was extended to obtain the documents and Ex.P.3 is dated 18.12.2008 and duration is extended till August 2009 and it is not mentioned in Ex.P.3 why so much of time is granted. This aspect shows that he was not ready.
26. Coming to the aspect of his financial status, the plaintiff should not only aver but also prove his financial capacity before the Court to conclude the contract. The plaintiff must prove by cogent evidence and documents that he was having so required funds within the stipulated period for completion of the agreement. Here, the agreement is dated 02/09/2008 and 3 months time was fixed for completion of sale. The plaintiff has not produced any material to show that within that 3 months he was possessing so much of amount. It does not mean, that he should produce the cash before Court, but he should produce some bank statement or FD receipts or like that. But except producing the acknowledgment of income tax returns for the year 46 O.S.No.5395/2011 2009-10, he has not produced any other material before Court to show that he was having requisite funds. But his own admission during cross-examination shows that he was not having finance as on the date of agreement, because in the cross-examination page No.37 P.W.1 has stated that:
"¸ÀévÀÛ£ÀÄß PÀæAiÀÄ ªÀiÁrPÉƼÀî®Ä D ¢£ÁAPÀPÉÌ £À£ÀUÉ DyðPÀ ¸ÁªÀÄxÀðå EvÀÄÛ. PÀæAiÀÄzÀ ªÀiË®åªÀ£ÀÄß ¤ÃqÀ®Ä ºÀt ªÀåªÀ¸ÀÜÉ DVvÀÄÛ. £Á£ÀÄ ¨ÁåAQ¤AzÀ ¸Á® ¥ÀqÉAiÀÄ®Ä ªÀåªÀ¸ÉÜ ªÀiÁrPÉÆArzÉÝ ªÀÄvÀÄÛ ¸ÀªÀÄxÀð EzÉ.Ý "
This answer goes to show that he was not having finance within 3 months from the date of agreement, because he has stated that he was ready and he has made arrangement to obtain loan from the bank. If that is so, he has not produced any material before Court, that he has applied for the loan or he has not produced bank statement for having so much amount in his account or he has not examined any of his financier that he was agreed to lend loan. And plaintiff has not explained when he says that he was financially sound, what was the need to avail the loan from bank to purchase the suit schedule property. If he says that 47 O.S.No.5395/2011 he is capable of purchasing the property, then he should prove the same. He has not produced his bank statements. The acknowledgment of income tax department is not sufficient, in the absence of statement of accounts and also balance sheet produced along with Ex.P.11 to the Tax Department and it is pertinent to note that, the agreement is dated 02.09.2008 and suit is filed on 26.07.2011, after lapse of almost 2½ years. The time duration fixed in Ex.P.1 was 3 months, it shows that same should be completed within 3 months. But the plaintiff approached the Court after lapse of 2½ years, which shows his conduct that he was not ready and willing to perform his part of contract. In support of my finding, I rely upon the decision rendered by Hon'ble Division Bench of Hon'ble High Court of Karnataka reported in 2016 (3) KCCR 2372 (Sri Punny Akat Philip Raju dead by LRs vs. Sri Dinesh Reddy) with respect of readiness and willingness and also financial capacity. In the said case, it is held that "plaintiff must produce some documentary evidence before Court by producing certain 48 O.S.No.5395/2011 documents regarding his financial capacity or to raise loan from the concerned bank."
Another decision reported in 2016(1) KCCR 670 (Chandrakanthamma and others vs. B Ramakrishnaiah) wherein it is held that:
"Suit for specific performance, readiness and willingness, one month period stipulated in contract for its performance, it shows urgency and sale has to be concluded within that time. The evidence on record shows notwithstanding the fixing of one month as the period for completion of the sale transaction, plaintiff was not in a position to raise funds on the date of legal notice issued by the defendants terminating the contract and also not having requisite bank balance to pay the balance sale consideration."
In Another decision reported in AIR 2015 KAR 1 (M.V. Prema Chandra and another vs. Smt. Sarojamma and others) Hon'ble High Court of Karnataka has held as follows:
49 O.S.No.5395/2011
"Specific performance of agreement of sale - readiness and willingness - specific lines in the agreement fixing 6 months as time within which the plaintiffs were expected to get the sale deed by paying the balance sale consideration. The suit filed almost one year five months after the lapse of six months. Even their right of specific performance at the earliest without giving room for any latches. It need not be reiterated that latches on the part of vendor disentitle to have the relief of specific performance as it shows readiness and willingness on the part of the vendor. Vendor not entitled to relief of specific performance."
27. Here also time duration fixed was 3 months and even if it is to be said that it is extended till August, 2009, thereafter suit is filed in the year 2011, 26th July, almost 2½ years delay in filling the suit. Though it can be said that it is in the limitation, but as per the decision, the plaintiff's conduct shows that he was not ready and willing to perform his part of contract. Further more his own admissions in page No.42 of his cross-examination that :
"2£Éà ¥ÀæwªÁ¢AiÀÄ J£ïM¹ E®èzÉÃ, ¤ÃªÀÅ zÁªÁ¸ÀévÀÛ£ÀÄß PÀæAiÀÄPÉÌ ¥ÀqAÉ iÀÄ®Ä EZÉÑ ºÉÆA¢¢ÝÃgÁ CAzÀgÉ, 50 O.S.No.5395/2011 £Á£ÀÄ D §UÉÎ £Á£ÀÄ «ZÁgÀ ªÀiÁr®è. 2£Éà ¥ÀæwªÁ¢ AiÀiÁªÀvÀÆÛ £À£ÀUÉ, £Á£ÀÄ J£ïM¹ PÉÆqÀÄvÉÃÛ £É JAzÀÄ ¨ÀsgÀªÀ¸É PÉÆnÖ®è"
28. So when he is not ready to purchase the property in the absence of consent of the defendant No.2, it should be held that plaintiff is not ready and willing to perform his part of contract and that apart, even if the plaintiff seeks direction from this Court to defendant No.1 to get the consent of defendant No.2, this Court is not in a position to grant such relief, because, defendant No.2 is not a party to either Ex.P.1 or Ex.P.3. Hence this issue is held in the 'negative'.
29. Issue No.6:-The learned counsel for defendants while submitting his arguments on merits has fairly conceded that the defence has taken that suit is barred by limitation, he submitted that suit is within limitation. Apart from that, date of agreement is 02.09.2008 and time fixed in the agreement is 3 months. That means to say the duration for execution of sale deed is 02.12.2008. The suit is filed on 26.11.2011 means within 3 years 51 O.S.No.5395/2011 from the last date fixed for execution of the sale deed. Hence it is held that suit is within limitation, and this issue is answered in the 'negative'.
30. Issue No.7:- Admittedly, plaintiff is in the field of real estate and he is a builder, definitely he should be having knowledge of the market value of the suit schedule property, that it is worth more than Rs.7,20,00,000/-. But agreement Ex.P.1 is for Rs.1,80,00,000/-. If the real value of the property is only Rs.1,80,00,000/-, plaintiff definitely should have produced the Government guidelines value document as on the date of agreement. That apart, as per his own admission, before Ex.P.1, talks were held to purchased the property for Rs.1,80,00,000/-. At the time of negotiation, Pushpanjali Reddy, Anjali Reddy, and Ramesh Rao were also present. Advocate Madan Gopal is the person who drafted Ex.P.1. If everything has happened in a transparent manner, plaintiff should have taken risk of examining the advocate Madan Gopal, who drafted the document and Pushpanjali Reddy, Ramesh Rao and Anjali Reddy to prove that 52 O.S.No.5395/2011 Ex.P.1 was executed for Rs.1,80,00,000/-. They are material witnesses to prove Ex.P.1. But plaintiff has not examined the said persons. Ex.D.44 the chit produced by the defendant No.1, which reflects that property was agreed to be sold for Rs.7,20,00,000/-. It is very very important to note that plaintiff in his legal notice has mentioned that it is fabricated document and he has asked the defendant No.1 to send a copy of the same in order to take legal action. But till this day he has not produced any material before Court to show that he has taken any action against the defendant No.1 relating to Ex.D.44 and moreover, there is no single word whispered in the plaint that it is a fabricated document and very much silence during cross-examination with respect to Ex.D.44 shows that it is issued by him only and value of the property is Rs.7,20,00,000/-. The documents produced by the defendant No.1 from Ex.D.12 to D.24 makes it clear worth of the property in HAL 2nd Stage, Bengaluru and plaintiff during cross-examination of D.W.1 never denied that the property is worth more than Rs.7,20,00,000/- and the affidavits produced by the defendant No.1 as per Ex.D.46, D.47 and D.48 which are 53 O.S.No.5395/2011 affidavits of Ramesh Rao, Pushpanjali Reddy and Anjali Reddy, were also not denied that they have not given the affidavits. In Ex.D.46, D.47 and D.48, they have stated that talks were held for the purchase of the property for Rs.7,20,00,000/-.
31. Learned counsel for defendants submitted that Ex.P.1 page No.3 was replaced after obtaining signature on the blank paper. It is contended by the defendant No.1 that original agreement was for Rs.7,20,00,000/- and page No.3 was also containing the same thing. But it was cleverly replaced by the plaintiff after getting the signature over the blank paper stating that some corrections is to be made in page No.3. On perusal of Ex.P.1, it is noticed that Ex.P.1 is containing page 1 to 7 and in page No.3 only, the property number and consideration amount and particulars of payment is mentioned and in other pages nowhere the consideration amount is mentioned and payment is also not mentioned. It is very easy to replace page No.3, because in other pages no consideration amount and payments are mentioned. So the contention of the defendant No.1 is so 54 O.S.No.5395/2011 probable and it can be accepted. Otherwise in Ex.P.2, which is a receipt the consideration and payment should have been mentioned, there also it is not mentioned and that apart the very very important document is Ex.P.3, because plaintiff states that it is a supplementary agreement extending time and also withdrawing the allegations made against him. If property is to be purchased for Rs.1,80,00,000/- only, then what prevented the plaintiff to mention the same in Ex.P.3 and very cleverly plaintiff here also evaded to mention the consideration amount. All these attitude of the plaintiff creates doubt in the mind of the Court that consideration amount for the suit schedule property is not Rs.1,80,00,000/-, but it is Rs.7,20,00,000/-, as stated by the defendant No.1 and the documents produced by the plaintiff at Ex.P.4, P.5, P.6 and P.7 are the envelopes, which are blank. It is stated to have been written by defendant No.1 to the plaintiff. He is hiding something before Court, because all these covers are blank. As per Section 114(g) of Evidence Act, if a party was to produce some documents and he withholds the same, then it is to be presumed that it goes against him only, so he has not 55 O.S.No.5395/2011 produced the same. Ex.P.8 and P.9 are postal receipts and UCP and all the documents pertaining to the defendant No1. He has not explained how he came to the possession of these documents. The contention of the defendant No.1 that plaintiff forced him to write letters to Madan Gopal, Police Commissioner and plaintiff, is so probable, or otherwise plaintiff would not have possessed the postal receipts. Production of these documents from the custody of the plaintiff also proves that there is some sort of coercion on the defendant No.1. Hence on appreciating the material on record, it is clear that plaintiff who was knowing the value of the property and with the assistance of Ramesh Rao, Pushpanjali Reddy and Anjali Reddy is intended to purchase the property for Rs.1,80,00,000/-, otherwise, the said persons definitely should have advised the defendant No.1 not to sell the property for a meager amount, when the value of the said property is more than Rs.7,20,00,000/-, which shows that the defence of defendants is so probable. Hence issue No.7 is held in the 'affirmative'.
56 O.S.No.5395/2011
32. Issue No.8:- Ex.D.44 a chit stated to have been issued by the plaintiff to defendant No.1 at the time of negotiation, which also in consonance with the defence taken by the defendant No.1 and the consideration mentioned in Ex.D.44 coupled with the documents Ex.D.12 to D.24 shows the value of the property. But with that intention only the property was agreed to be sold for Rs.7,20,00,000/- and agreement was entered into as per Ex.P.1. But the plaintiff cleverly managed to mention it as for Rs.1,80,00,000/-. When the negotiations were held for Rs.7,20,00,000/-, naturally Rs.20,00,000/- is paid as advance and as per the terms, the remaining consideration was to be paid at the time of registration. So Ex.D.44 shows that transaction took place for Rs.7,20,00,000/- and Rs.7,00,00,000/- was to be paid at the time of registration and with that intention only the plaintiff has handed over the chit-Ex.D.44. Hence it is held in the 'affirmative'.
33. Issue No.9:- Though it is already held that plaintiff has failed to prove the execution of Ex.P.1 and also ready and 57 O.S.No.5395/2011 willingness, though if he is able to prove his readiness and willingness and Ex.P.1, the comparative hardship and inconvenience of the defendant No.1 is not disputed by the plaintiff by cross-examination. It is admitted by the plaintiff during his cross-examination that he is having so much of properties in Bengaluru whereas defendant is having alone property, i.e., suit schedule property. If it is to be ordered for specific performance of the contract, then defendant would be put into hardship.
34. Even for refund of earnest money, Section 22 of the Specific Relief Act is extracted:
22. Power to grant relief for possession, partition, refund of earnest money, etc. (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908, any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for--58 O.S.No.5395/2011
(a) possession, or partition and separate possession, of the property, in addition to such performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or (made by) him, in case of his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed.
Here in this case, the plaintiff willingly or unwillingly has not sought for even alternative relief of refund of earnest money. Hence this Court is not in a position to grant even refund of earnest money. Hence this issue No.9 is held in the 'negative'.
35. Issue No.10:- The learned counsel for plaintiff has produced 3 citations with memo.
(1) (1980) 4 Supreme Court Cases 354 (2) (2018) 6 Supreme Court Cases 287 (3) (2012) 7 Supreme Court Cases 462 (1980) 4 Supreme Court Cases 354 (Mahadeo Prasad Singh and another vs. Ram Lochan and others) is 59 O.S.No.5395/2011 with respect to what to be done when the procedural law is amended. Learned counsel for plaintiff submits that Specific Relief Act is a procedural law and change in law, this case is to be considered under new Section 20 of Amended Act. But his contention cannot be accepted, because it is clearly held that:
"It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement f this Act shall be construed as a reference to the coming into force of that provision."
Here, the Act is published in the Official Gazette on 01.08.2018. As already held by this Court, amended section of New Act is not applicable to the facts and circumstances of this case. Even if Section 20 is made applicable to the present case on hand, plaintiff has to prove the valid contract. Without proving the contract, amended Section 20 of Specific Relief Act is not applicable.
60 O.S.No.5395/2011
The learned counsel for plaintiff has also relied upon the decision reported in AIR 1951 SC 280 (Bishundeo Narain and another vs. Seogeni Rai and others) with regard to pleading of fraud, undue influence and coercion. When at the beginning of the judgment itself, this Court has held that plaintiff has to prove his case and he should not depend on the weakness of the other side. Hence he cannot rely upon the said decision. Another decision relied upon by the counsel for the plaintiff reported in Vijayalakshmi vs. B. Himantharaja Shetty and another case and is basing the said decision to submit that Specific Relief Act is procedural law. Though it is procedural law, the plaintiff has to establish the contract under the Contract Act. Hence even if it is held that Specific Relief Act is procedural law, without proving the contract, he cannot rely upon the said decision.
Another decision relied upon by the counsel for plaintiff reported in AIR 2014 Karnataka 120 (The Hassan Co- operative Milk Producers Societies Union Limited and 61 O.S.No.5395/2011 others vs. State of Karnataka and others) to say that the amended provision will operate retrospectively. But in this case though Specific Relief Act is amended, the legislature has fixed the day from when it has to come into force. As per the amended Specific Relief Act, the operation of Section 20 will commence from 01.08.2018. The other decisions relied upon by the plaintiff will not applicable to the facts and circumstances of this case. Hence, I proceed to pass the following:-
O RDER The suit of the plaintiff is dismissed.
No order as to costs.
Draw a decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 29th day of November, 2018.) (SATHISHA L.P.) XII ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY 62 O.S.No.5395/2011 SCHEDULE All that residential property presently bearing Municipal No.619, constructed on Site bearing No.619, allotted by Bengaluru Development Authority, situated at HAL II Stage, Indiranagar, Bengaluru-38, PID No.74-1-619 consisting of Ground Floor measuring 1500 sq.ft. of constructed area and first floor, measuring 1500 sq.ft. of constructed area, the property measuring East to West 15.24 meters and North to South 24.38 meters in all measuring 371.55 sq. meters or 3999.37 sq. feet and bounded as follows:
East by: Site bearing No.620
West by: Site bearing No.618
North by: Site bearing No.626 and 627
South by: Road
ANNEXURE
I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: J. Somashekar
P.W.2: A. Vishwanath
(b) Defendant's side :
D.W.1: Lt. Col. Appuramanand Sharma (Retd)
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :63 O.S.No.5395/2011
Ex.P.1: Agreement of sale dated 02.09.2008 Ex.P.1(a) Signature of defendant No.1 Ex.P.1(b) Signature of plaintiff Ex.P.1(c) Signature of Ramesh Rao Ex.P.1(d) Signature of Pushpanjali Reddy Ex.P.1(e) Signature of Vishwanath Ex.P.2: Receipt dated 09.09.2008 Ex.P.2(a) Signature of defendant No.1 Ex.P.2(b) Signature of witnesses & (c) Ex.P.3: Supplementary agreement dated 18.12.2008 Ex.P.3(a) Signature of defendant No.1 Ex.P.3(b) Signature of plaintiff Ex.P.3(c) Signature of witnesses &(d) Ex.P.4 to 4 postal covers P.7:
Ex.P.8: 9 postal receipts Ex.P.9: One UCP receipt Ex.P.10: Unserved postal cover Ex.P.11: Acknowledgment of IT return Ex.P.12: Invoice Ex.P.13: Ledger extract Ex.P.14: Police notice dated 07.03.2013 Ex.P.15: Postal cover Ex.P.16: Police notice dated 21.03.2014 Ex.P.17: Postal cover Ex.P.18 to 4 postal receipts P.21: Ex.P.22: Reply dated 0404.2014 Ex.P.23: Reply dated 05.04.2014 Ex.P.24: Endorsement dated 09.05.2014 64 O.S.No.5395/2011 Ex.P.25: Postal cover Ex.P.26: Police notice dated 02.07.2015 Ex.P.27: RPAD cover Ex.P.28: RPAD receipt Ex.P.29: Office copy of legal notice Ex.P.30: Office copy of legal notice dated 09.12.2008 Ex.P.31: Office copy of legal notice Ex.P.32: Bank details letter Ex.P.33: Special power of attorney dated 23.10.2008 Ex.P.34: Special power of attorney dated 19.12.2008 Ex.P.35: Deed of cancellation of Special power of attorney dated 30.06.2011 Ex.P.36: Letter dated 12.12.2008 Ex.P.37: Letter written by defendant No.1 to Commissioner of Police Ex.P.38: Letter dated 19.12.2008 written by defendant No.1 to plaintiff (b) Defendants side : Ex.D.1: Certified copy of order passed in W.P.10014/2006 Ex.D.2: Certified copy of order passed in Crl. Petition No.3660/2004 Ex.D.3: Certified copy of order passed in COMPA No.14.2009 Ex.D.4: Certified copy of order passed in Company Appeal No.14/2011 Ex.D.5: Certified copy of order passed in Company petition No.48/2011 Ex.D.6: Certified copy of order passed in W.P.No.16883 to 17433/2012 65 O.S.No.5395/2011 Ex.D.7: Certified copy of order passed in Crl. Petition No.6380/2012 Ex.D.8: Certified copy of order passed in Crl. Petition No.4264/2009 Ex.D.9: Certified copy of order passed in CMP No.179/2010 Ex.D.10: Certified copy of order passed in CMP No.180/2010 Ex.D.11: Certified copy of order passed in COMPA No.4/2013 Ex.D.12: Sale deed dated 30.04.2008 Ex.D.13: Sale deed dated 30.06.2008 Ex.D.14: Sale deed dated 04.08.2008 Ex.D.15: Sale deed dated 30.09.2009 Ex.D.16: Sale deed dated 07.11.2009 Ex.D.17: Sale deed dated 12.05.2011 Ex.D.18: Sale deed dated 19.05.2011 Ex.D.19: Sale deed dated 09.11.2012 Ex.D.20: Sale deed dated 20.05.2013 Ex.D.21: Sale deed dated 02.08l2016 Ex.D.22: Sale deed dated 02.08.2016 Ex.D.23: Sale deed dated 18.01.2019 Ex.D.24: Sale deed dated 07.02.2018 Ex.D.5 to Pertaining to air tickets D.31 Ex.D.32: Letter dated 24.11.2008 Ex.D.33: Medical certificate Ex.D.34: Medical certificate Ex.D.35: Death certificate of wife of defendant No.1 Ex.D.36 & Passbooks D.37: Ex.D.38 to Deposit certificates D.40: Ex.D.41: Letter dated 01.12.2008 Ex.D.42: Passbook Ex.D.43: Sale deed Ex.D.44: Chit 66 O.S.No.5395/2011 Ex.D.45: Old medical records of defendant No.1 Ex.D.46: Affidavit of Ramesh Rao Ex.D.47: Affidavit of Pushpanjali Reddy Ex.D.48: Affidavit of Anjali Reddy Ex.D.49: Deed of revocation of GPA Ex.D.50 & Will D.51: XII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.