Karnataka High Court
Sri K C Krishnamurthy vs Sri. Kalyanasundaram on 10 April, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF APRIL, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
R.F.A. NO.1538/2003
c/w
R.F.A.NO.1120/2003
R.F.A.NO.1538/2003
BETWEEN:
Sri.K.C.Krishnamurthy,
S/o late C.K.Chandrasekaraiah,
Aged about 48 years,
Residing at Flat No.1-A, 1st Floor,
Chandru's Apartments,
No.18, 3rd Cross Road,
Malleshwaram,
Bangalore-560 003. ... Appellant
(By Sri.G.Balakrishna Shastry, Advocate)
AND:
1. Sri.Kalyanasundaram,
S/o G.Shankaran,
Aged about 60 years,
Residing at Flat 6A,
I Floor, Chandru's Apartments
No.18, 3rd Cross Road,
Malleshwaram,
Bangalore-560 003.
2
2. Sri.C.Sridhar,
S/o late C.K.Chandrasekariah,
Aged about 40 years,
Residing at Flat No.2-A, 2nd Floor,
Chandru's Apartments,
No.18, 3rd Cross Road,
Malleshwaram,
Bangalore-560 003.
3. Smt. Radha Sastry,
D/o late C.K.Chandrashekaraiah,
Aged about 50 years,
Residing at No.19, D-1,
Vishal Apartments, 5th Main Road,
Malleshwaram,
Bangalore-560 003.
4. Smt. C.Latha,
D/o late C.K. Chandrashekaraiah,
Aged about 44 years,
Residing at No.21/47, 10th Cross Road,
Margosa Road,
Malleshwaram,
Bangalore-560 003.
5. Smt. Rekha Ramaprasad,
D/o Late C.K.Chandrasekaraiah,
Aged about 42 years,
R/at No.103, 13th Cross,
10th Main, Malleshwaram,
Bangalore-560 003.
6. M/s Ram Krupa Enterprises,
No.297, 14th Main Road,
R.M.V. Extension,
Bangalore-560 080,
Represented by its partners,
Defendants 7 and 8
3
7. Sri.H.N. Anantha Raman,
Major, S/o late H.N.Narayana Iyengar,
Residing at No.489, 17th Cross,
Malleshwaram,
Bangalore-560 003.
8. Sri.B.R.Srinath,
S/o late B.Rama Iyengar,
Aged about 50 years,
Partner,
M/s Rama Krupa Enterprise,
No.297, 14th Main Road,
R.M.V. Extension,
Bangalore-560 080. ... Respondents
(By Sri.C.S.Ramdas, Advocate for R-1;
Sri.A.N.Krishnaswamy, Advocate for R-2, R-3,
R-4, R-5, R-6 and R-8 are served but
Unrepresented, Notice to R-7 is dispensed with
V/o dated 20.03.2006)
This Appeal is filed Under Section 96 of C.P.C.
praying against the judgment & decree dated 1.4.2003
passed in O.S.No.2235/1994 on the file of the XI Addl.
City Civil Judge, Bangalore, (CCH No.8) partly
decreeing the suit for specific performance.
R.F.A.NO.1120/2003
BETWEEN:
Sri.K.C.Krishnamurthy,
S/o late C.K.Chandrasekaraiah,
Aged about 48 years,
Residing at Flat No.1-A, 1st Floor,
Chandru's Apartments,
No.18, 3rd Cross Road,
4
Malleshwaram,
Bangalore-560 003. ... Appellant
(By Sri.G.Balakrishna Shastry, Advocate)
AND:
1. Sri.V.N.Govindraj,
S/o V.S.N.Iyengar,
Aged about 47 years,
Residing at Flat 1B,
I Floor, Chandru's Apartments
No.18, 3rd Cross Road,
Malleshwaram,
Bangalore-560 003.
2. Sri.C.Sridhar,
S/o late C.K.Chandrasekariah,
Aged about 40 years,
Residing at Flat No.2-A, 2nd Floor,
Chandru's Apartments,
No.18, 3rd Cross Road,
Malleshwaram,
Bangalore-560 003.
3. Smt. Radha Sastry,
D/o late C.K.Chandrashekaraiah,
Aged about 50 years,
Residing at No.19, D-1,
Vishal Apartments, 5th Main Road,
Malleshwaram,
Bangalore-560 003.
4. Smt. C.Latha,
D/o late C.K. Chandrashekaraiah,
Aged about 44 years,
Residing at No.21/47, 10th Cross Road,
Margosa Road,
Malleshwaram,
5
Bangalore-560 003.
5. Smt. Rekha Ramaprasad,
D/o Late C.K.Chandrasekaraiah,
Aged about 42 years,
R/at No.103, 13th Cross,
10th Main, Malleshwaram,
Bangalore-560 003.
6. M/s Ram Krupa Enterprises,
No.297, 14th Main Road,
R.M.V. Extension,
Bangalore-560 080,
Represented by its partners,
Defendants 7 and 8
7. Sri.H.N. Anantha Raman,
Major, S/o late H.N.Narayana Iyengar,
Residing at No.489, 17th Cross,
Malleshwaram,
Bangalore-560 003.
8. Sri.B.R.Srinath,
S/o late B.Rama Iyengar,
Aged about 50 years,
Partner,
M/s Rama Krupa Enterprise,
No.297, 14th Main Road,
R.M.V. Extension,
Bangalore-560 080. ... Respondents
(By M/s C.S.Ramdas and Company, Associates,
Advocate for R-1;
Sri.A.N.Krishnaswamy, Advocate for R-2,
Notice to R-3, is dispensed with V/o dated
10.01.2005)
R-5, R-6, R-7 and R-8 are served but
Unrepresented)
6
This Appeal is filed Under Section 96 of C.P.C.
praying against the judgment & decree dated 1.4.2003
passed in O.S.No.2236/1994 on the file of the XI Addl.
City Civil Judge, Bangalore, (CCH No.8) partly
decreeing the suit for specific performance.
These Appeals are coming on for hearing this day,
the Court delivered the following:
JUDGMENT
These two appeals are by the unsuccessful 1st defendant questioning the correctness and legality of the judgment and decree passed by the XI Addl. City Civil Sessions Judge, Bangalore, in O.S. Nos..2235/1994 and 2236/1994 dated 01.04.2003, whereunder plaintiffs suits for specific performance has been decreed with a direction to defendants 1 to 8 to execute the registered sale deeds in favour of plaintiffs in respect of suit schedule properties as per the terms of Development agreement and agreement to sell undivided interest dated 27.05.1991 and 28.09.1991 respectively within a period of three months from the 7 date of order. Plaintiffs have been called upon to bear the registration expenses along with other expenses as per the terms of agreement. Liberty has also been reserved to the plaintiffs to get the sale deeds executed through process of law in the event of defendants failing to execute the sale deed.
2. Heard Sri G. Balakrishna Shastry, learned counsel appearing for appellants, Sri C.S.Ramadas, learned counsel appearing for caveator-respondent No.1, Sri A.N.Krishnaswamy, learned counsel appearing for respondent No.2. In both the appeals notices issued to respondent Nos. 4, 5, 6 and 8 are served and they are unrepresented. Notice to respondent No.3 in RFA No.1120/2003 has been dispensed with vide order dated 10.01.2005 and notice to respondent No.7 in RFA No.1538/2003 has been dispensed with vide order dated 20.03.2006.
3. Plaintiffs filed the suits in question seeking for specific enforcement of agreements namely 8 development agreement and construction agreement entered into between 8th defendant as the power of attorney holder of the owner of suit schedule properties Sri.C.K.Chandrasekaraiah, whereunder it had been agreed to sell suit schedule properties namely two flats in favour of plaintiffs together with undivided right, title and interest in the land, appurtenant thereto with car parking.
4. The sum and substance of contentions of both the plaintiffs in two suits are almost identical and similar and it was to the effect that Sri. C.K.Chandrasekaraiah the owner of the property bearing No.18, 3rd Cross Road, Malleshwaram, Bangalore - 560 003 (hereafter referred to as Suit Schedule Property) entered into a development agreement with defendant Nos. 6 to 8 on 27.05.1991 whereunder defendant Nos. 6 to 8 agreed to develop the suit schedule property into a residential complex consisting of ground, first and second floor with two 9 flats in each floor, and in all 6 flats as per the terms and conditions mentioned in the development agreement at the cost of 6th defendant. It was further contended that 6th defendant developer had agreed to pay the owner a sum of `.1,70,000/- and it was in addition to that 6th defendant had agreed to construct for the owner and put in possession of two flats in first and second floor without any liability on the said owner to pay costs of construction of said two flats; owner had agreed to retain a right to keep one number of open car space for four wheeler in front and two wheeler parking in rear portion; 6th defendant was required to bear the entire costs of construction and adjust the same out of consideration received by 6th defendant by sale of undivided interest of the owner in the property to other prospective purchasers of the property; owner had agreed and undertaken to register the sale deed or sale deeds in favour of 6th defendant or its nominees in respect of 60% of undivided interest of the suit schedule properties or portions thereof as may be required by the 10 6th defendant and subject to the said condition owner was not required to execute beyond four sale deeds.
4.1 It was further contended that owner had also executed a general power of attorney immediately thereafter i.e., 19.07.1991 appointing 8th defendant who is the partner of 6th defendant-firm as attorney authorizing and empowering him to do all acts as specifically mentioned therein; plaintiffs were interested in acquiring a flat in the residential complex and as such agreements dated 28.09.1991 and 21.10.1991 were entered into between plaintiffs and the owner represented by 8th defendant and 6th defendant under which they had agreed to sell 20% & 13 1/3% of the undivided interest in the property to permit the plaintiffs to construct one flat No. G.A in the ground floor and flat No.1B in the first floor respectively, of the said property with undivided interests, rights, estates, claims of the owner into and upon the same and every part thereof for a consideration of `. 1,65,000/- and 11 `. 1,10,000/- subject to the stipulations contained in the schedule to the said Agreements; it was also agreed that on plaintiffs fulfilling the conditions of said agreements of sale and also construction agreement executed by and between the plaintiffs and 6th defendant, owner should execute the sale deed conveying 20% & 13 1/3% respectively of undivided interest in the property to the plaintiffs; on the date of execution of agreement of sale dated 28.09.1991 and 21.10.1991 plaintiffs and 6th defendant entered into an agreement under which 6th defendant agreed to construct flats for the plaintiffs in the ground floor and first floor respectively and one general car parking each in front and undertook to procure Sale deeds in their favour from the owner for undivided interest; though 6th defendant had undertaken to put plaintiffs in possession of flats by May 1992, it was delivered only on 10.10.1992 and the owner was required to execute the sale deeds in favour of plaintiffs conveying 20% and 13 1/3 % undivided interest respectively in the property 12 and 6th defendant was required to procure from the owner such sale deed in favour of plaintiffs; however, on account of demise of Sri C.K.Chandrasekhariah, defendant Nos. 1 to 5 succeeded to the estate of Sri C.K.Chandrashekariah and they were under obligation to convey the property in favour of plaintiffs as agreed to by Sri.Chandrasekhariah and despite plaintiffs paying for the stamp paper, registration fee and other expenses to the 6th defendant, defendant Nos. 1 to 5 failed to execute the sale deeds in favour of plaintiffs and defendant Nos. 6 to 8 failed to arrange the same despite repeated demands made by the plaintiffs.
4.2 It was also contended that 6th defendant had purchased requisite stamp papers on behalf of plaintiffs from out of the amounts paid by them and on account of defendants 1 to 5 not executing sale deeds in favour of plaintiffs within the period of validity of stamp papers, plaintiffs were perforced to surrender the stamp papers to the concerned authority and obtain 13 repayment of amount where by 10% of amount was lost by plaintiffs. Hence, plaintiffs contended that they had suffered monetarily towards loss of interest on borrowed monies and 10% deducted towards surrender of stamp papers purchased by them for getting the flats registered.
4.3 Plaintiffs also contended that they had availed housing loan from their employer as well as financier namely Government of India and M/s. Canfin Homes Limited, Pondicherry, for purchase of their respective flats. It was contended that plaintiffs were put to mental agony, monitory loss and after getting the legal notice issued calling upon defendants Nos. 1 to 5 to execute the sale deeds, defendant Nos. 1 and 2 gave evasive reply and denied their liability to comply with demands made by the plaintiffs and as such they filed two suits in question seeking specific performance.
5. After service of suit summons defendant Nos. 1 and 2 appeared and filed their written statement 14 in both suits. Though suit summons were served on defendant Nos. 3 to 8 in O.S. Nos.2235/1994, defendants-6 to 8 were unrepresented and had been placed exparte and defendant Nos. 3 to 5 though appeared through their Advocate in O.S. No.2235/1994 they did not file the written statement.; in O.S.No.2236/1994, defendants- 3 to 8 were served and unrepresented and they had been placed ex-parte.
6. The sum and substance of contentions raised in the written statement filed by defendant No.1 in both suits are similar and identical namely; it was contended that power of attorney executed by his father is not independent and powers given therein have to be exercised only in accordance with the terms and conditions stipulated in the development agreement. Possession of flats have been taken by defendant Nos. 6 to 8 unlawfully since as on the said date they were not the power of attorney holders. The developer had to put up the construction in accordance with development 15 agreement and construction put up has been in violation of the sanctioned plan and terms of development agreement and what was agreed to be sold by his father was only flats and not the land; defendant Nos. 6 to 8 have no power or authority whatsoever to develop any open area except one car parking in front and in the rear two wheeler parking for the owner; defendant Nos. 6 to 8 have encroached the land of the owner and developed two more car parking areas and they have no title or authority. Owner has expressly retained the ownership of the property to develop the property either vertically or horizontally and all rights vests with the owner to an extent of 60% undivided interest of the constructed flats; late Sri Chandrasekhariah had never agreed to sell the land; cost of the land was worked out at ` 9,00,000/- @ ` 300/- per sq ft. in the draft agreement; this clause was deleted at the time of signing of final agreement and only 60% undivided interest for sale of constructed flats has been given to defendant Nos. 6 to 8; defendant Nos. 16 6 to 8 have not paid costs of the land as worked out in the draft agreement, as such question of sale of land by owner to developer does not arise at all, Sale agreements dated 28.09.1991 and 21.10.1991 are not signed by late Chandrasekhariah and late Chandrasekhariah had retained the right of execution of sale deeds and handing over possession of flats after completion of the legal formalities; power of attorney executed by late Chandrasekhariah expired on his demise on 08.09.1992; owner of the land had retained right to verify the accounts of defendant Nos. 6 to 8 relating to money received and spent by them for development of property and they are bound to render such accounts for the owner of the land; defendant Nos. 6 to 8 have failed to render accounts in spite of issuance of notice; defendant No.1 is not responsible for any damages or any monetary loss occurred to plaintiffs since plaintiffs themselves have committed irregularities and have not verified the terms of the development agreement; defendant No.1 is ready to execute the sale 17 deed only in respect of the plinth area of flat and of its proportionate land and this was conveyed to defendant Nos. 6 to 8 from time to time through his Advocate subject to the condition that unauthorized construction be demolished. On these grounds defendant No.1 sought for dismissal of the suits.
7. Defendant No.2 filed a separate written statement admitting execution of joint development agreement by his father. It was also contended that granting of undivided interest is not permissible in view of the fact that six flats were constructed over suit schedule property and contentions similar to that of first defendant were raised in the written statement filed by the second defendant and plaintiffs have to proceed against defendants 6 to 8 for redressal of their claims .
8. On the basis of the pleadings of the parties Trial Court framed following issues for its consideration in both the suits as under:
18
"RFA No.1538/2003 (OS No. 2235/1994):
"1. Does the plaintiff prove that he entered into sale agreement with late Chandrashekariah and defendant-6 for permission to construct flat No.GA in the ground floor?
2. Does plaintiff prove that 6th defendant entered into sale agreement on 28.09.91 as per para-6 of plaint for consideration of Rs.1,65,000/-?
3. Does plaintiff prove his possession over suit property?
4. Does plaintiff prove that he paid Rs.45,300/- on 10-04-93 to 6th defendant for cost of stamps, Registration of sale deeds and subsequently surrenders same as per para-7 and 8 of plaint?
5. Does plaintiff prove that 6th defendant is liable to pay damages as per para-11 of plaint?
6. Does plaintiff prove that he is ready to perform his part of contract?
7. Does plaintiff prove that defendants neglected to perform their part?
8. Does 1st defendant prove that defendants-6 to 8 have no title and also no right to execute sale agreement? 19
9. Does 1st defendant prove that the valuation made and court fees paid is not proper?
10. Whether suit is not maintainable as per written statement of defendant-1?
11. Whether plaintiff is entitled to the suit reliefs?
12. If so, under what order or decree?"
RFA No.1120/2003 (OS No. 2236/1994):
"1. Whether the plaintiff proves that on 21-10- 91 the owner late C.K.Chandrasekhariah & the 6th defendant agreed to sell the suit flat No.1-B after construction, for a consideration of Rs.1,10,000/-?
2. Whether the plaintiff proves that he is ever ready and willing to perform his part of contract?
3. Whether the plaintiff proves that the defendants committed default & thereby he sustained damages?
4. Whether the plaintiff proves that he is entitled for specific performance of the agreement of sale from the defendants, as prayed for?
5. Whether the plaintiff proves that he is entitled to Rs.25,000/- or any amount from the defendants towards damages? 20
6. Whether the 2nd defendant proves that the suit is bad for misjoinder of parties?
7. Whether the 2nd defendant proves that the suit is pre-matured?
8. What decree or order?
Addl issues
1. Whether the 1st defendant proves that late Chandrashekariah has not signed the agreement & that defendants 6 to 8 have not title over the suit property to execute the agreement?
2. Whether the 1st defendant proves that the valuation made & court fee paid is not correct?"
In both the suits respective plaintiffs got themselves examined as P.W.1 and got marked 13 documents as Exhibits P-1 to P-13. Defendant Nos.1 and 2 entered the witness box as D.W.1 and D.W.2 and tendered their oral evidence and no documentary evidence was placed by them. On appreciation of evidence and considering the pleadings of parties, trial court decreed both the suits by its judgments and decrees dated 01.04.2003, which 21 are assailed in the present appeals by 1st defendant alone.
FINDINGS RECORDED BY THE TRIAL COURT:
9. Trial Court has held that father of defendant Nos. 1 to 5 being the owner of property bearing No. 18, situated at III Cross, Malleshwaram, Bangalore, measuring east to west 30 feet, north to south 100 feet had entered into a development agreement on 27.05.1991 - as per Exhibit P-1 and had executed a General Power of Attorney in favour of 8th defendant on 19.07.1991 as per Exhibit P-2; Plaintiffs had made out a case that they were interested to acquire flats in the residential complex to be constructed as per joint development agreement under which the owner had agreed to sell 20% and 13 1/3% respectively namely undivided right, title and interest in the Land and permit the plaintiffs to put up construction and own flat No. GA & 1B in ground and first floor respectively for consideration of ` 1,65,000/- and ` 1,10,000/-; If there 22 was any violation of the terms of the agreement it was only between the father of defendant Nos. 1 to 5 and defendant Nos. 6 to 8; the power of attorney holder has to perform the contract entered into between himself and defendant Nos. 6 to 8 and he cannot say that second defendant denied to perform his part of the contract; both defendant Nos. 1 and 2 have admitted the execution of agreement entered into between the owner, 6th defendant and plaintiffs as per Exhibit P-12 (in both suits) dated 28.09.1991 and 21.10.1991 and the construction agreement between the owner, 6th defendant and plaintiffs as per Exhibit P-13 (in both suits) dated 28.09.1991 and 21.10.1991 respectively; 6th defendant under the development agreement had a right to develop the property and he had paid to the owner a sum of `1,70,000/- and had also agreed to construct for the owner and put him in possession two flats i.e., one in the first floor and the other in the second floor without owner being liable to pay any consideration amount towards construction; 1st 23 defendant has to execute and register sale deeds in favour of 6th defendant- developer or his nominees in respect of 60% undivided interest in the schedule property or portion thereof as required by the 6th defendant subject to condition that the owner shall not be obliged to execute more than four sale deeds; merely because the owner of the property Sri Chandrasekaraiah had not signed agreement Exhibit P- 12 and P-13 (in both the suits) he cannot be also sued of his liability; defendant Nos. 1 to 5 who have interest in the property denied that they are liable to execute the sale deed in respect of 60% of undivided interest as per Exhibit P-1 since the property was agreed to be sold as per agreement Exhibit P-1 in favour of defendant No.6 or its nominees; defendant Nos. 1 to 5 being the legal heirs of the owner Sri Chandrasekaraiah they are bound to execute the sale deeds in favour of plaintiffs in respect of undivided interest of the land; D.W.1 and D.W.2 had admitted execution of Exhibits P-12 and P- 13 and plaintiffs had already paid the entire 24 consideration, defendants are bound to execute the sale deeds. If at all there was any breach of terms of agreement and defendant Nos. 6 to 8 have put up any illegal construction beyond the sanction plan, it is for defendant Nos. 1 to 5 to take action against defendants 6 to 8 and plaintiffs having performed their part of obligation as per the terms of agreement Exhibits P-12 and P-13 and there being no breach on their part, contentions of defendant Nos. 1 and 2 regarding breach of agreement by defendant Nos. 6 and 8 cannot be taken into consideration to deny their prayer and as such it was held by trial court that plaintiffs have been able to prove the fact that they had entered into agreements. As such, trial court held that defendants have utterly failed to prove the fact that plaintiffs were not ready to perform their part of the contract and also failed to prove the fact that defendant Nos. 6 to 8 have no right and title to execute the sale agreement and as such answered issue Nos. 1, 2, 3, 6 and 11 in O.S. No.2235/1994 in the affirmative and issue Nos. 1, 2 25 and 4 in O.S.No.2236/1994 in the affirmative and after analyzing entire evidence both oral and documentary trial Court decreed both the suits.
CONTENTIONS:
10. Contentions of learned counsel appearing for the appellants in both the suits are similar and identical.
11. The contentions of Sri.G.Balakrishna Shastry, learned counsel appearing for appellants are:
i. Sale agreement - Exhibit P-12 is not executed by Sri Chandrasekhariah;
ii. Sri Chandrasekaraiah expired on 08.09.1992 and consequently agreement executed by 8th defendant as power of attorney holder of late Sri Chandrasekhariah stood extinguished or revoked and as such agreement Exhibit P-12 has become unenforceable;26
iii. What has agreed to be sold is only a flat and not undivided interest in the land; iv. Owner had not given 8th defendant any right to execute any agreement of sale;
v. Exhibit P-2 G.P.A executed by father of defendant Nos. 1 to 5 on 19.07.1991 in favour of 8th defendant to do acts stipulated therein and no authority has been given to sell the flats and hence not binding on them as legal heirs of deceased Chandrasekhariah vi. By virtue of Section 201 of the Contract Act, 1872 agency created by the principal has stood revoked extinguished by virtue of death of the principal; vii. Trial Court ought to have refused the decree for specific performance by invoking Section 20 Clause (a) to (c) of the Specific Relief Act, 1963.
12. Elaborating his submission Sri. Shastry would contend that Trial Court erred in not considering 27 Clause 15 and 20 of Development Agreement Exhibit P-1 together and it does not mandate that owner has to sell the undivided right in the land in favour of the purchasers. There is no right given to the developer to sell the undivided interest in the suit land in favour of plaintiffs and there is no right given to the power of attorney holder i.e., 8th defendant to enter into sale agreement with the plaintiffs. He would also contend that under Clause 3 of Exhibit P-12 - the parking area is to be retained by the owner and as such question of conveying the car parking area in favour of plaintiffs by defendant Nos. 1 to 5 does not arise and as such Trial Court committed a serious error in decreeing the suit.
He would also contend that owner had not agreed to convey the open car parking as contended and as such the judgments and decrees passed by Trial Court is erroneous.
13. He would also draw the attention of the Court to Clause 20 of the joint development agreement 28 Exhibit P-2 to contend that it was agreed to by the developer that owner would retain the right to put up further construction be it vertically or horizontally in accordance with law and the developers or its nominees will not have any right or claim in respect thereto and if it is to be so, taking into consideration the owner had a right to put up further apartments, if the total number of apartments is taken into consideration, each of the flat owners entitlement of the undivided share would be 12.5% and it will not be 20% as held by the Trial Court. On these grounds he seeks for setting aside the judgments and decrees passed by Trial Court and for allowing the appeals filed by first defendant.
14. In support of his submissions he has relied upon following judgments:
i. AIR 2001 SC 2783: A.C.ARULAPPAN VS. SMT.
AHALYA NAIK ii. JT 2002 (5) SC 357: VELUYUDHAN SATHYADAS VS. GOVINDAN DAKSHYANI 29 iii. AIR 2002 SC 2290: NIRMALA ANAND VS.
ADVENT CORPORATION PVT. LTD. AND OTHERS
15. Per contra learned counsel Sri C.S. Ramdas appearing for plaintiffs in both the appeals would support the judgment and decrees passed by Trial Court and contend that owner of the property under Exhibit P-1 had agreed to have a joint development agreement with 6th defendant and in pursuance to the said agreement he had also executed a power of attorney on 19.07.1991 authorising 8th defendant to enter into agreement of sale and 8th defendant who is none other than one of the partners of 6th defendant firm had entered into agreement of sale with plaintiffs as per Exhibit P-12 (in both suits) and 6th defendant had also entered into an agreement to construct flats as specifically mentioned in the respective agreements and owner having agreed to convey the property either by himself or through the power of attorney holder, had expired on 08.09.1992, as a result of which defendant 30 Nos. 1 to 5 being the legal heirs of deceased 1st defendant Chandrasekhariah were required to perform their obligation which was required to be performed by their father and on account of his demise they have now refused to execute the sale deeds and plaintiffs having paid the stamp duty and registration charges to the developer, 6th defendant he has not got executed sale deeds from defendants Nos. 1 to 5 and as such Trail Court has rightly directed the defendants to execute the sale deeds.
16. He would also draw the attention of Court to Clauses in the power of attorney as well as agreement of sale to buttress his arguments that 8th defendant had been empowered to enter into an agreement of sale with plaintiffs; development agreement entered into between Chandrasekhariah and 6th defendant also General Power of Attorney i.e., Exhibits P-1 to P-2 have to be read together and along with construction Agreement Exhibits P-12 and P-13 and not in isolation; he would 31 draw the attention of Court to these two documents namely Exhibits P-12 and P-13 which were entered into between deceased Chandrasekhariah, represented by the power of attorney holder 8th defendant and plaintiffs, and as such there is no infirmity in the judgment and decrees passed by Trial Court and he seeks for dismissal of the appeal.
17. Sri. A.N.Krishnaswamy, learned counsel appearing for second defendant in both suits contends that though second defendant had filed a separate written statement he would concede to the claim of plaintiffs and contends that agreement entered into by his deceased father is required to be adhered to by second defendant being his dutiful son and as such he contends that second defendant is ready and willing to execute the sale deeds in favour of the plaintiffs.
18. Having heard the learned Advocates appearing for the parties and on perusal of judgment and decrees passed by trial Court as well as on perusal 32 of records secured from trial Court, I am of the considered view that following points would arise for my consideration:
1) Whether the judgment and decree passed by trial Court in O.S.Nos.2235/1994 and 2236/1994 decreeing suits of plaintiffs for specific performance suffers from any patent errors or material irregularities;
OR Whether there has been any improper appreciation of evidence by trial Court or non appreciation of material evidence available on record resulting in erroneous judgment and decrees passed by trial Court?
2) Whether trial Court was required to exercise the power under Section 20 clause (a) to (c) of Specific Relief Act, 1963 to deny the specific performance to plaintiffs?
33
3) What order?
FACTUAL MATRIX
19. Following facts which are not in dispute between the parties can be crystallized as under:
Property bearing No.18 situated at 3rd Cross, Malleswaram, Bangalore was the absolute property of Sri C K Chandrasekharaiah i.e., father of defendants 1 to 5. He entered into a development agreement on 27.05.1991 with 6th defendant where under it was agreed to between the parties that property bearing No.18 referred supra would be developed into a residential complex consisting of ground floor, first floor and second floor with two flats in each of the floors i.e., in all six flats as per the terms and conditions agreed to therein. It was agreed to by 6th defendant to develop the said property by constructing residential apartments at its cost and expenses. Sixth defendant had agreed to pay to the owner of the property i.e., above said 34 Sri C K Chandrashekariah a sum of ` 1,70,000/- and in addition, it had agreed to construct two flats one in first and another in second floor for which owner was not required to pay any amount to sixth defendant towards construction cost of the said two flats. It was also agreed to under the said agreement that one open car parking space would be left to the owner in the front and two wheeler parking in rear portion. Entire cost of construction incurred for constructing the flats and car parking area was agreed to be adjusted out of the consideration to be received by 6th defendant by sale of undivided interest of owner in the property to other prospective purchasers of flats.
20. Subsequent to said agreement entered into between parties, owner - Sri C.K.Chandrashekaraiah also executed a General Power of Attorney on 19.07.1991 appointing 8th defendant who was one of the partner of 6th defendant - partnership firm authorizing the attorney and empowering him to negotiate, or sell 35 any portion or any interest in the property to one or more buyers who would be the ultimate purchasers of the flats except the flats agreed to be handed over to the said owner - C.K.Chandrashekariah under the joint development agreement. It was also agreed to between the parties to the joint development agreement that owner has to execute Irrevocable Power of Attorney in favour of developer as per clause 7. In the General Power of Attorney executed on 19.07.1991 it is agreed that attorney would advertise for sale or otherwise any portion or interest in the Schedule property to one or more buyer and will be the ultimate purchaser. The owner has also agreed to execute sale deed or sale deeds in respect of 60% of undivided interest in the schedule property. These two documents came to be marked as Exs.P-1 and P-2 before trial Court. Plaintiffs have entered into Joint Agreements of sale of undivided interest with the owner Sri C K Chandrashekar represented by 8th defendant, - power of attorney holder 8th defendant and 6th defendant dated on 28.09.1991 36 and 21.10.1991 respectively which documents came to be marked as Ex.P-12 (in both suits) where under it was agreed between the parties that 20% and 13 1/3 % undivided interest in the schedule property would be conveyed in favour of the plaintiffs for consideration of ` 1,65,000/- and ` 1,10,000/- respectively. On the same day, plaintiffs entered into agreements with 6th defendant for construction of flats in the schedule property with open car parkings and said agreements came to be marked as Ex.P-13 (in both suits). Above said C K Chandrashekar expired intestate on 08.09.1992. Defendants-1 to 5 succeeded to the estate of deceased C.K.Chandrashekar. These are indisputed facts.
RE: POINT No.(1):
21. It is the contention of Mr.G.B.Shastry that Ex.P-12 Agreement to sell undivided interest (in both suits) is not executed by Sri C K Chandrashekariah and as such same cannot be enforced against appellant or 37 other legal heirs of late Sri C.K.Chandrashekariah. It is not in dispute that Sri C.K.Chandrashekariah during his life time had entered into a joint development agreement on 27.05.1991 with sixth defendant. In order to appreciate or examine the contentions of Mr.Shastry, it would be necessary to extract clauses of the said development agreement Ex.P.1 which has been the bone of contention between the parties. As such, they are extracted herein below:
"6. The owner shall sign the applications, plans, documents and other papers as may be required by the DEVELOPER to obtain aforesaid sanction, approval and permission.
7. In order to enable the DEVELOPER to develop the schedule property lawfully in accordance with the sanctioned plans, rules, norms laid down by the Corporation in the manner specified in this agreement, the owner has this day executed an irrevocable power of attorney. It is however made clear that the developer shall alone be liable for all acts done by it on the basis of the said power of attorney and all expenses in connection with the performance of acts, specified in the power of attorney shall be borne and paid for by the developer on its own account and the developer 38 shall not be entitled to reimbursement of payment from the owner on any account whatsoever.
8. In consideration of the owner having granted to the DEVELOPER the right of development of property and other rights and authorities hereby conferred the developer has agreed to pay the owner a sum of Rs.1,70,000/- in the following manner:-
i)Rs.1,70,000/- paid by cheque No.0019757 dated 27.5.91 drawn in INDIAN BANK, before the witnesses attesting hereunder.
ii) Rs.75,000.00 will be paid before 31.07.91.
iii) Balance of Rs.75,000.00 will be paid before 31.08.91.
In addition to payment of the said amount the developer as contractor for the owners shall also construct for him and put him in possession of two flats (south facing) in first and second floor each with a super built up area of 899 sq.ft.
The specification of the flats to be so constructed is given separately attached to this agreement. The owner has retained the right to keep and number of open car parking space for himself in front, and two wheeler parking on same.
39Towards the cost of construction of two flats referred to above, the owner shall not be liable to pay any amount to the developer. The entire cost of construction that may be incurred by the developer for construction the aforesaid flats and car parking area shall be borne by the developer themselves and adjusted from out of the consideration received by the owner towards the sale of undivided interest of the owner in the schedule property to the other prospective acquirers of flats. The ownership of the flats to be so delivered to the owner shall absolutely vests in him.
14. The DEVELOPER is hereby authorised and it shall be entitled to sell, grant, lease and transfer, allot or otherwise deal with and dispose of remaining built area on the schedule premises (built area minus the area constructed for the owner) or any part thereof of the said premises comprised in the building to be constructed on the schedule property on ownership or any other basis and to such parties and for such consideration as the DEVELOPER shall be entitled to enter into agreements or documents of sale or lease with persons intending to purchase and/or acquire such premises at such price and upon such terms and conditions as may be agreed upon between the developer and the prospective buyers/acquired and to receive and realise and appropriate the 40 sale proceeds in respect of such sale and allotment of the said premises.
15. The owner hereby agrees and undertakes to execute and register the sale deed or sale deeds in favour of developer or its nominees in respect of 60% of undivided interest of the schedule property or portions thereof as may be required by the DEVELOPER. It is however agreed that the sale deeds shall not exceed four in number. In otherwards the OWNER shall not be obliged to execute more than four sale deeds.
28. The entire land and the buildings constructed thereon shall be deemed to be in joint possession and enjoyment of both the parties until it apportioned between them in terms of this agreement and construction work is completed.
Perusal of agreement Exhibit P-12 (in both suits) would indicate that under Clause 6 the owner had agreed to sign all the applications, plans, documents, etc., required by the developer to obtain sanctioned plan and permission to build. In furtherance of this agreement owner has executed a irrevocable power of attorney in favour of the developer and has made the 41 developer alone liable for all acts done pursuant to the said power of attorney. In fact owner has taken precaution to insulate himself from absolving of any probable claims that may arise on account of the acts done by the developer. The amount agreed to be received by the owner from the developer has been specified under Clause 8. It has also been agreed by the developer under the same clause that in addition to the payment of the amount specified under the development agreement Exhibit P-1, it is agreed to by the developer that two flats (south facing) one in I Floor and another in II floor each with a super built up area of 899 sq. ft. would be constructed and handed over the cost of which was not liable to be paid by the owner. Infact the owner has retained the right to keep one number of car parking space for himself in front and two wheeler parking in the rear. It has been specifically agreed to by the owner under the said development agreement Exhibit P-1 that developer is authorised to sell, grant, lease and transfer, allot or otherwise deal with and 42 dispose of remaining built area to such parties and for such consideration. The owner has also agreed that developer would be entitled to enter into agreements or documents of sale or lease etc., as agreed to thereunder. The owner has also agreed under clause 15 to execute and register the sale deed or sale deeds in favour of developer or its nominees in respect of 60% of undivided interest of the schedule property or portions thereof as may be required by the developer. It is agreed to between the parties that under clause 28 that entire land and buildings constructed thereon is deemed to be in joint possession and enjoyment of both the parties, unless it is apportioned in terms of the agreement and construction is completed.
22. On demise of Sri C K Chandrashekaraiah on 8.9.1992 both the plaintiffs sought for specific performance of agreements to be enforced against the legal heirs of deceased Chandrashekaraiah, on account of their refusal to execute sale deeds. Defendants-1 to 5 43 being Class I legal heirs of deceased Chandrashekaraiah is not in dispute. First defendant i.e. son of C.K.Chandrashekaraiah has entered the witness box and has admitted in his cross examination dated 14.01.2013 to the following fact:
"It is true that myself and defendants-2 to 5 are legal heirs of my late father C.K.Chandrashekaraiahiah. xxxxx schedule property. It is true that during the life time of my father, he had entered into an developmental agreement with defendant No.6 for construction of flats over the suit schedule property. It is true that defendants-7 & 8 are the partners of defendant No.6. It is true that my late father had also executed power of attorney in favour of defendant No.8."
This admission on the part of defendant No.1 would clearly establish the fact that Sri C K Chandrashekaraiah had entered into a joint development agreement dated 23.05.1991 as per Ex.P-1 and he had also executed General Power of Attorney dated 19.07.1991 in favour of 8th defendant authorizing him to carry out the deeds more specifically enumerated 44 in the said General Power of Attorney dated 19.07.1991
- Ex.P-2. Infact there is no dispute on this factual aspect. Evidence of second defendant is on the same lines of first defendant. Thus, execution of Development agreement dated 27.05.1991 Ex.P-1 and General Power of Attorney dated 19.07.1991 Ex.P-2 by late C.K.Chandrashekaraiahaiah is admitted by defendants- 1 & 2. Defendants-3 to 5 have not appeared before trial Court or before this Court to dispute this fact. Infact 2nd defendant has conceded to the claim of plaintiffs and has agreed to execute the Sale deeds.
23. Perusal of clauses in said agreement - Ex.P- 1 would clearly indicate that deceased Chandrashekaraiah had permitted sixth defendant to develop suit schedule property by putting up a residential building consisting of six flats. General Power of Attorney dated 27.10.1991 - Ex.P-2 executed by deceased Chandrashekaraiah is a contemporaneous document; Exs.P-1 and P-2 are supplementary and 45 complementary to each other. These two documents have to be read together and not in isolation. At this juncture, it would be appropriate to examine the contention of Mr.Shastry that said Chandrashekaraiah has not executed agreement to sell undivided interest in schedule property or agreement of construction to put- up flats in schedule property namely Exs.P-12 and P-13 in favour of plaintiffs. Under clause 14 of Ex.P-1 the owner late C.K.Chandrashekariah has authorized the developer and permitted him to sell, grant, lease and transfer, allot or otherwise deal with and dispose of remaining built area in the suit schedule premises i.e., minus the area agreed to be constructed in favour of C.K.Chandrashekaraiahaiah. In fact, owner has authorized the developer to receive the consideration for remaining area namely area other than two flats agreed to be constructed by developer in favour of owner as the developer deems fit and has also authorized the developer to enter into agreements or documents of sale or lease with persons intended to purchase or acquire 46 such premises upon such conditions as may be agreed upon between the developer and prospective buyer/acquirers and to receive, realise and appropriate the sale proceeds in respect of such sale and allotment of the said premises. Said Sri C.K.Chandrashekariah as already noticed herein, had also authorized the 8th defendant by General Power of Attorney dated 19.07.1991 - Ex.P-2 to convey to the prospective purchasers/acquirer of the flats and respective clause in the general power of attorney which enables the attorney or the agent to negotiate with the prospective purchasers and said clause in General Power of Attorney - Ex.P-2 reads as under:
"NOW THEREFORE BY THESE PRESENTS, xxxx powers hereby conferred in my name and for my use.
To advertise for sale or otherwise, procure, negotiate, sell or any portion or interest in the schedule property for such price as he may deems fit to one or more buyers who will be the ultimate purchaser/s of the flats excepting the flats handed over to the first party under the housing flats scheme to be promoted by the Attorney herein and to let, sell or otherwise dispose of and transfer the 47 schedule property in such manner as he deems fit."
As already noticed herein above, these two documents namely Exs.P-1 and P-2 being contemporaneous documents they are required to be read together or in conjunction with each other; owner C.K.Chandrashekaraiahaiah had entered into a development agreement with 6th defendant to develop the schedule property by putting up construction of residential flats. For carrying out the said purpose he had executed a General Power of Attorney on 19.03.1991 Ex.P-2 in favour of 8th defendant who is none other than partner of 6th defendant - firm. Thus, 6th and 8th defendants were empowered to enter into agreement of sale of flats and undivided interest in land with the prospective purchasers. It is by virtue of such authority granted by the principal to the agent and in exercise of said power, 6th defendant as well as 8th defendant together have entered into agreement to sell 48 undivided interest of 20% and 13 1/3% in favour of plaintiffs under agreements of sale dated 28.09.1991 and 21.10.1991 respectively under Exs.P-12 (in both suits) and on the same day 6th defendant has entered into agreement with plaintiffs namely, construction agreement agreeing thereto to put up construction of flat in the suit schedule property with one open car parking in front as per Ex.P-13 (in both the suits).
24. Perusal of Ex.P-12 in both the suits would clearly indicate that the owner represented by General Power of Attorney holder Sri B R Srinath i.e., 8th defendant along with 6th defendant has entered into agreement of sale of undivided interest as referred to supra in favour of plaintiffs. Deceased Sri Chandrashekaraiah during his life time never questioned the authority of 8th defendant to enter into such agreement of sale. He has never raised any objection. Defendants-1 to 5 on the demise of Sri C.K.Chandrashekariah on 08.09.1992 have also not 49 disputed the fact that Sri C K Chandrasehkariah had executed power of attorney in favour of 8th defendant. As such, it is too late in the day for defendants 1 to 5 to contend that Sri C.K.Chandrashekariah had not entered into an agreement of sale under Ex.P-12 in both the suits, inasmuch as, Sri C.K.Chandrashekariah was represented by power of attorney holder Sri B.R,Srinath- 8th defendant who is also partner of 6th defendant-firm. In that view of the matter, first contention of Mr.Shastry deserves to be rejected. Accordingly, it is rejected.
25. He has also contended that on the demise of Sri C.K.Chandrashekariah on 08.09.1992 power of attorney executed by him came to an end as per Section 201 of Contract Act, 1872. There cannot be any dispute with regard to this legal proposition, inasmuch as, Section 201 is explicit and clear as to when termination of agency takes place. One of the eventuality prescribed is on the death of principal. In the instant case, 50 principal being Sri C.K.Chandrashekariah and he having expired on 08.09.1992, agency created by him came to an end by operation of law namely Section 201 of Indian Contract Act. However, trial Court has not expressly so stated. It requires to be noticed that either on termination of tenancy by issuance of notice by the Principal to the agent or by virtue of deemed termination of agency, the acts done or carried out by the agent in furtherance of such power granted to him would not get extinguished. As such contention raised by the first defendant in this regard has been rightly rejected. Such of those acts done or carried out by an Agent would be protected till its revocation. Section 204 of the Contract Act provides for protection of the acts already done by the agent by virtue of the agency created by the Principal. Section 204 of the Contract Act reads as under:
"204. Revocation where authority has been partly exercised ---- The principal cannot revoke the authority given to his agent after the authority has been partly exercised, so far as regards such acts and 51 obligations as arise from acts already done in the agency."
Section 204 of the Contract Act expressly prohibits the Principal from revoking such authority granted to an agent after such authority has been partly exercised by the agent. It would also protect such of those acts and obligations already done by the agent.
26. In the instant case, by virtue of power of authority granted by C K Chandrashekariah as per Ex.P-1 in favour of 8th defendant, he has entered into an agreement of sale on 28.09.1991 & 21.10.1991 with the plaintiffs i.e., much prior to his demise (08.09.1992 ); in other words, power of attorney was alive and in vogue as on the dates of execution of Ex.P-12 (in both suits). As already noticed herein above, said General Power of Attorney - Ex.P-2 had not been revoked or cancelled by the principal as on the date of agreement of sale entered into by the attorney (agent) with the plaintiffs. Under somewhat similar situation arose before Rajasthan High 52 Court in the case of KISHNI DEVI vs THE STATE OF RAJASTHAN & OTHERS reported in AIR 1992 RAJASTHAN 24 and it has held to the following effect "10. The Registrar sustained the order of the refusal of the registration also on the ground that the holder of general power-of- attorney Rajesh Lodha ceased to be so as his authority was withdrawn by the vendors Parasmal Sardarmal prior to his appearance before the Sub-Registrar, Jodhpur in compliance of his summons. Admittedly, the sale deed was not executed by the vendors parasmal and Sardarmal, it was executed by Rajesh Lodha on their behalf as holder of general power of attorney and it was presented before the Sub-Registrar for registration by the vendee Smt. Kishni Devi petitioner. According to Rule 39 of the Rules, the Registrar was not concerned whether the Authority executed in favour of Rajesh Lodha by the venders Parasmal and Sardarmal continued till July 15, 1988 or not. It is well settled law that where a person holds a power of attorney authorizing him to execute the document on behalf of his principle and he executes the document, he is treated as the executant of the document for the purpose of registration. Production of any power of attorney as required under Section 33 of the Act is not required. Reference of Goswami Malti Vahuji Maharaj V/s Purushottamlal, AIR 1984 Cal 297, may be made here. Admittedly, the sale deed was executed by Rajesh Lodha on May 15, 1987 and the general power-of-attorney executed 53 in his favour by Parasmal and Sardarmal is said to have been withdrawn by getting their notice of revocation published in 'Rajasthan Patrika' of May 16, 1987. Thus the sale-deed was executed by Rajesh Lodha prior to the revocation of his authority to execute it. Section 204, Contract Act runs as under:
"204. The principal cannot revoke the authority given to his agent after the authority has been partly exercised, so far as regards such acts and obligations as arise from acts already done in the agency."
When Rajesh Lodha had executed the sale-deed, he was fully competent to appear before the Sub-Registrar as its executant and also as an authorised agent of the said vendors. It is clear from the provisions of Sec. 47 of the Act that a registered document operates from the date of its execution and not from the date of its registration.
Reference of Nand Ballabh Gurnami V/s Smt. Maqbool Begum, 1981 Allahabad Rent Cases 516 (SC) may be made here. To say the least, it appears that the Registrar and the Sub-Registrar were ignorant of the aforesaid provisions of the Registration Act and the above quoted Rules, otherwise they would not have refused the registration of the said sale-deed. The registration of the sale-deed could not be refused on the ground mentioned in their orders. Reference of J.D.Pathak V/s V.B.Barat, AIR 1982 Gujrat 317, Kailash and others V/s Sub- Registrar of Assurances Indore and another, AIR 1985 MP 12 and Krishna Gopal Kataria 54 and another V/s State of Punjab and others, AIR 1986 P & H 328 may be made here. As such the writ petition deserves to be accepted.
27. By virtue of power of attorney Ex.P-2 being in force and vogue as on the date of agreements of sale and construction agreements come into existence i.e, Exs.P-12 and P-13 (in both suits), contention of Mr.Shastry that on account of demise of the principal i.e., Sri C K Chandrashekariah authority had come to an end cannot be accepted and it stands rejected.
28. Yet one another contention of Mr.Shastry is with regard to there being no agreement to convey 20% and 13 1/3% of undivided right, title, interest in the suit schedule properties in favour of plaintiffs execution of sale deed in respect of it does not arise. He would draw the attention of Court to sale agreements and construction agreements as per Exs.P-12 and P-13 and contends that Exs.P-12 and P-13 by themselves do not 55 create any right in favour of plaintiffs. The said contention at first blush though looks attractive, it deserves to be rejected for reasons more than one.
(i) In the first instance, it is to be noticed that under the joint development agreement Ex.P-1 entered into between deceased Sri C.K.Chandrashekariah and 6th defendant, developer had agreed to put up a residential complex consisting of 6 flats, out of which, two were to be constructed at the cost of developer and without any cost to be paid by the owner for the said two flats and in lieu of same, owner had agreed to convey 60% of undivided right, title, interest in the suit schedule property in favour of 6th defendant or its nominees. This view gets fortified from clauses found in the joint development agreement at more than one place which is already extracted hereinabove. It is agreed to by owner under clause 8 that developer would construct two flats (south facing) i.e., one in first and another second floor each with a super built up area of 899 56 sq.ft. with one number of open car parking space for himself (owner) in front. It is also stated under the very same clause that cost of construction of two flats and car parking area to be borne by the developer and adjusted from out of consideration received by them by sale of undivided interest of owner in the schedule property to other prospective acquirers of flats. Under Clause 15 which is already extracted herein above, the owner (Sri C.K.Chandrashekariah) has agreed and undertaken to execute and register sale deed or sale deeds in favour of 6th defendant or its nominees in respect of 60% of undivided interest in the schedule property or portions thereof as may be required by the developer. However, it has been agreed to between the parties that total number of sale deeds in this regard should not exceed beyond 4. These clauses read in conjunction with the clauses found in the power of attorney Ex.P-2 whereunder it is agreed that developer had floated the scheme of housing board flats and had agreed to sell the same to various buyers and they 57 would be having proportionate share of undivided interest to the total extent of 60% would make it explicitly clear that owner intended to retain 40% of right, title and interest in the schedule property and 60% was agreed to be conveyed either to 6th defendant or to its nominees like that of plaintiffs. Hence, third contention raised by learned Advocate appearing for appellant - defendant No.1 cannot be accepted and it stands rejected.
29. At this stage itself, it would be appropriate to examine one another contention raised by learned Advocate appearing for appellant namely, it was undivided land which was agreed to be sold by 6th defendant and 8th defendant and Sri C.K.Chandrashekariah had not agreed to sell the open car parking. Said contention is also without merit for the simple reason that under Exs.P-12 and P-13 it is specifically agreed to between 6th defendant and plaintiffs that apart from the flat agreed to be 58 constructed by 6th defendant, parties were also at ad idem namely open car parking in front would be provided to them and as such it was required to be provided by the developer. As rightly contended by Mr Ramdas, tenor of clauses found in Ex.P-1 with regard to open car parking space being retained by the owner having been specifically mentioned as 'One number"
would clearly indicate that owner was retaining only one open car parking and two parking areas were agreed to be conveyed by the owner in favour of 6th defendant or its nominees. Hence, said contention is also without merit and it is liable to be rejected and accordingly it is rejected.
30. In view of the aforesaid discussions, point No.(1) has to be answered by holding that judgment and decree passed by trial Court is just and proper and there has been no erroneous appreciation of evidence or non-appreciation of available evidence. 59 RE: POINT No.(2):
31. By way of alternate submission, learned Advocate appearing for appellant has contended that trial Court ought to have exercised its discretion to deny decree for specific performance in favour of plaintiffs on the ground that conduct of parties was such that it would deny them such relief. In this regard, he would contend that what was paid by the developer to the owner was a paltry sum of `1,70,000/- and by virtue of the same, developer had an unfair advantage over defendants-1 to 5 and as such, clause (a) of sub-section (2) of Section 20 of the Specific Relief Act, 1963 had to be invoked by trial court.
32. In support of his submission, he has relied upon following two judgments wherein it has been held that when plaintiff is trying to take unfair advantage over defendant, he would not be entitled to a decree for specific performance of contract.
60
1) AIR 2001 SC 2783 - A.C.ARULAPPAN vs SMT.AHALYA NAIK.
2) JT 2002 (5) SC 357 - VELUYUDHAN SATHYADAS GOVINDAN DAKSHYANI RE: ARULAPPAN's case
33. In the said case, it was found on facts that defendant-respondent had not approached the Court with clean hands and during the course of litigation between appellant and respondent therein, tenant of the schedule premises therein was attempting to give possession of house to respondent and respondent had alleged that she got into possession of house through tenant and as such she had filed a suit and obtained possession from the tenant which was found to be a collusive act. In the background of the said facts, appellate Court held that plaintiff was not entitled for exercise of discretionary relief.
61
34. In VELUYUDHAN's case Hon'ble Apex Court has held mere establishment of fact that agreement of sale entered into is not sufficient to grant decree for specific performance and it can be denied in the circumstances indicated in section 20 of Specific Relief Act, 1963 having existed in a particular suit. There cannot be any dispute with regard to proposition of law in the above two cases.
35. In the instant case, deceased Sri C K Chandrashekaraiah undisputedly had entered into an agreement for development of schedule property and possession came to be delivered to the developer and by virtue of possession being delivered, 6th defendant developer has obtained sanctioned plan, proceeded with the construction of residential flats and has put up residential complex consisting of six flats and undisputedly two flats are in possession of defendants-1 and 2 who are none other than sons of late Sri C K Chandrashekaraiah and having entered into possession 62 of the suit schedule property namely, their respective share which was to the tune of two flats and said Chandrashekaraiah having demised, his two sons defendants-1 and 2 thought fit to deny execution of contract initially and have attempted to contend that clauses in the contract would disentitle the plaintiffs to claim discretionary relief. Both the plaintiffs have obtained loans from the employer as well as financial institution to purchase suit schedule property and even waiting in the wings for last 20 years to obtain sale deeds it has not yielded fortified result. It is to be further noticed that undisputedly plaintiffs are put in possession of the flats on 10.10.1992 by 6th defendant by virtue of development agreement and irrevocable General Power of Attorney- Exs.P-1 and P-2, as such, discretion exercised by trial Court by decreeing the suits is just and proper and it is not against law laid down by Hon'ble Apex Court.
63
36. At this juncture, it would be appropriate to note the judgment of the Hon'ble Supreme Court in the case of LAXMAN TATYABA KANKATE & ANR. V/S. SMT. TARAMATI HARISHCHANDRA DHATRAK reported in AIR 2010 SC 3025 whereunder it has been held that mere escalation in price of the suit land would not be a ground to deny specific performance and it has been held by the Apex Court as under:
"17. It was contended on behalf of the appellants that there has been considerable increase in the price of the land in question. Though that may be true, it cannot be a ground for denying the decree of specific performance to the respondent. The learned First Appellate Court, by a well reasoned judgment, has granted the relief of specific performance instead of only granting refund of money, as given by the Trial Court. The judgment of the First Appellate Court has been upheld by the High court and we see no reason whatsoever to interfere with the concurrent findings of facts and law as stated in the judgment under appeal. However, the learned counsel appearing for the respondent volunteered and after taking instructions stated that they would be willing to pay a sum of Rs.1,50,000/- instead of Rs.40,000/- as the total sale consideration. We find this offer of the respondent to be very fair." 64
In the instant case, at all times, plaintiffs have been ready and willing to perform their part of contract. In fact, second defendant who is represented by learned Advocate before this Court has fairly conceded to the claim of plaintiffs and has stated that he has no objection whatsoever for executing sale deeds in favour of plaintiffs. Thus, equities if at all any has to be balanced, it would tilt in favour of plaintiffs rather than in favour of defendant No.1. On account of escalation of prices of immoveable property in a city like Bangalore it is but natural to cause heart burn for a person who has parted with the property to see the price rocketeering and as such, to salvage such situation, defendants-1 and 2 have raised untenable pleas before trial Court and they have been unsuccessful in denying legitimate right of the plaintiffs to execute sale deeds which came to be thwarted by decreeing the suits for specific performance by trial court and rightly so. 65
37. In view of the aforestated reasons, trial Court has refused to invoke clause (a) to (c) of subsection (2) of Section 20 of the Specific Relief Act, 1963. In that view of the matter, point No.(2) has to be answered against appellants and in favour of plaintiffs and it is accordingly answered.
RE: POINT No.(3):
41. For the reasons aforestated, following order is passed:
ORDER
1. Appeals are hereby dismissed with costs.
2. Judgment and decree passed by XI Addl. City Civil Judge, Bangalore City in O.S.Nos.2235/1994 and 2236/1994 dated 01.04.2003 are hereby affirmed.
3. First defendant in both suits i.e., appellant shall pay costs of Rs.10,000/- to each of the plaintiff within an outer limit of two months, as otherwise, respondents-plaintiffs would be at liberty to file 66 execution petition for recovery of the costs awarded.
4. Defendants-1 to 5 shall execute the sale deeds in favour of plaintiffs in both suits within a period of five weeks from today failing which, plaintiffs would be at liberty to get the sale deeds executed and registered through process of Court.
Sd/-
JUDGE DR/*sp