Bangalore District Court
Sri.C.Sreedharan vs Smt.Rathnamma (Dead) on 28 January, 2017
IN THE COURT OF THE V ADDL. CITY CIVIL JUDGE
AT BANGALORE CITY
(CCH-13)
DATED THIS THE 28th DAY OF JANUARY, 2017.
PRESENT
Sri.Muhammed Khan .M. Pathan,
B.Com., LL.B.(Spl), LL.M.(Business Law)
V ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE
O.S. No. 1808/2003
PLAINTIFFS: Sri.C.Sreedharan
Since deceased by his LRs
a) Smt.K.P.Kamalam
W/o late Sri.Sridharan,
Aged 55 years,
b) Smt.K.P.Srikala
W/o Sri.Sethu Madhavan
Aged about 25 years,
c) Smt.K.P.Shalani
W/o Sri.Sajan,
Aged about 23 years,
d) Smt.K.P.Sreeja
W/o Sri.Babu Raj,
Aged about 21 years,
All are r/at Cheriyadath House,
Post Irimbalassri via Nellaya,
Pallakad District,
Kerala, represented by
GPA holder Mr.C.Gopalan
(By Sri.S.K.V.Chalapathy, Advocate)
/Vs/
2 O.S.No.1808/2003
DEFENDANTS: 1. Smt.Rathnamma (dead)
W/o Sri.Palyada Thippa Reddy
Aged about 88 years,
2. Sri.Jayarama Reddy
S/o Sri.Palyada Thippa Reddy
Aged about 48 years,
3. Sri.Narayana Reddy
S/o Sri.Palyada Thippa Reddy
Ageda bout 43 years,
4. Sri.Srinivasa Reddy
S/o Sri.Palyada Thippa Reddy
Aged about 41 years,
Since deceased by LRs
4(a). Smt.Meena
W/o late Sri.Srinivasa Reddy
Aged about 42 years,
4(b). Sri.Gagan
S/o late Sri.Srinivasa Reddy
Aged 17 years, minor
Represented by his mother
Defendant No.4(a) herein
Both are residing at No.415,
Ring road, Bellandur main road,
Varthur Hobli, Bangalore-03.
5. Sri.Gopala Reddy
S/o Sri.Palyada Thippa Reddy
Aged about 88 years,
6. Sri.Vasudeva Redddy
S/o Sri.Palyada Thippa Reddy
Aged about 38 years,
7. Ms.Sushilama
D/o Sri.Palyada Thippa Reddy
Aged about 36 years,
8. Sri.Pramilamma
D/o Sri.Palyada Thippa Reddy
Aged about 33 years,
3 O.S.No.1808/2003
9. Ms.Manjula
D/o Sri.Palyada Thippa Reddy
Aged about 30 years,
10. Ms.Gajalakshmi
D/o Sri.Palyada Thippa Reddy
Aged about 28 years,
Since deceased by LRs
All are residing at
Bellandur Village,
Varthur Hobli,
Bangalore South Taluk.
10(a). Sri.Suresh
Father name not known
Aged about 42 years,
10(b). Kumari Pooja
D/o Sri.Suresh
Aged about 6 years,
Minor represented by natural
Guardian father Suresh
Both are residing at No.181,
9th 'C' main road, Pipe line,
Vijayanagara,
Bangalore-560 040.
11. Smt.Vimala
W/o K.Venkatesh Reddy
Aged about 32 years, r/at
Mylasandra village,
Begur Hobli,
Bangalore South Taluk,
Bangalore.
12. P.Ravindra
S/o Late Pilla Reddy
Aged about 45 years, r/at
Bellandur village & post,
Varthur Hobli,
Bangalore East Taluk.
13. R.Narayanaswamy
S/o Ramareddy
4 O.S.No.1808/2003
Aged about 39 years, r/at
Bellandur village & post,
Varthur Hobli,
Bangalore East Taluk.
(By Sri.S.Venkatesh, Advocate for
D2)
(By Sri.H.Prakash,Advocate for D3)
(D4-Abated)
(D4(a,b)-Dismissed)
(D5 to D9 placed exparte)
(By Sri.Harisha. O.K, Advocate for
D10(a) and D10(b))
(By Sri.S.V, Advocate for D11 to 13)
Date of Institution of the 11-03-2003
suit
Nature of the suit (suit on Specific performance
pronote, : suit for declaration
and possession ,suit for
injunction, etc.)
Date of Commencement of 30-01-2014
recording of evidence
Date on which judgment was 28-01-2017
Pronounced
Duration Years Months Days
13 10 17
(Muhammed Khan .M. Pathan)
V ADDL.CITY CIVIL JUDGE
BANGALORE
*****
JUDGMENT
The plaintiff's suit is for Specific Performance of Contract.
5 O.S.No.1808/2003
2. The brief facts of the plaint averments are as under:
The defendant Nos.1 to 10 have agreed to sell the suit property item Nos. and 2 under an agreement of sale dated 19/09/2000 in favour of the plaintiff in Sy.No.75/1 situated at Bellandur village. The suit schedule property item No.1 and 2 are described as under :
SCHEDULE ITEM NO.I All that portion of land bearing Sy.No.75/1 measuring one gunta situated at Bellandur village, Varthur Hobli, Bangalore South Taluk and bounded as follows :
On the East : Property bearing Sy.No.72/3
West: Road
North: Remaining portion of same survey No.75/1 belonging to the plaintiff South: Remaining portion of same survey No.75/1 belonging to Zafeerulla Khan And Govindacharya 6 O.S.No.1808/2003 ITEM NO.II All that portion of land being South-Eastern corner of Sy.No.75/1, measuring twenty-two and half gunatas situated at Bellandur village, Varthur Hobli, Bangalore South Taluk and bounded as follows : On the East : Partly property bearing Sy.No.72/3 and Partly property bearing Sy.No.75/3 West: Remaining portion of same Sy.No.75/1 North: Proposed 40 ft. wide road South: Property bearing Sy.No.75/2 The defendant Nos.3,4 and 5 have received a sum of Rs.25,000/- each on the date of the agreement of sale on 19/09/2000 drawn on Lord Krishna Bank Ltd., Richmond Circle, Bangalore. The defendants agreed to complete the sale transaction within a period of 12 months from the date of agreement making out good and marketable title to the schedule properties.
Subsequently, from time to time, the defendants received various payments from the plaintiff amounting to Rs.7,80,000/- as detailed hereunder:7 O.S.No.1808/2003
Amount paid whom paid Receipt dt. Amount to Rs.
1. Sri.Gopala Reddy 19.09.2000 1,75,000.00
2. Sri.Narayana Reddy 19.09.2000 1,75,000.00
3. Sri.Srinivasa Reddy 19.09.2000 75,000.00
4. Sri.Jayarama Reddy 31.10.2000 25,000.00
5. Sri.Narayana Reddy 31.10.2000 50,000.00
6. Sri.Gopala Reddy 09.12.2000 10,000.00
7. Sri.Srinivasa Reddy 02.01.2001 50,000.00
8. Sri.Narayana Reddy 09.01.2001 15,000.00
9. Sri.Srinivasa Reddy 23.01.2001 25,000.00
10. Sri.Jayarama Reddy 08.03.2001 60,000.00
11. Sri.Gopala Reddy 09.03.2001 50,000.00
12. Sri.Jayarama Reddy 19.03.2001 20,000.00
13. Sri.Gopala Reddy 17.04.2001 25,000.00
14. Sri.Jayarama Reddy 29.05.2001 10,000.00
15. Sri.Narayana Reddy 01.06.2001 10,000.00
16. Sri.Srinivasa Reddy 11.12.2001 5,000.00 Total 7,80,000.00 The defendants have received the payment from the plaintiff towards sale consideration even after the expiry period prescribed in the agreement of sale for completing the sale transaction. The plaintiff made repeated demand to complete the sale transaction as per the terms of the agreement of sale. The defendants were making promises to complete the sale transaction, but they could not fulfill them. The plaintiff by notice dated 21/10/2002 called upon them to complete the sale transaction in terms of the 8 O.S.No.1808/2003 agreement of sale. The notices were returned to the plaintiff with an endorsement as 'party refused'. They have purposely refused to receive the notices. They have failed and neglected to complete the sale transaction under the agreement of sale. The registered covers and acknowledgements issued to them are produced. The Power of Attorney holder of the plaintiff personally approached on 08/02/2003 to complete the sale transaction, but they have refused to complete the sale transaction inspite of having received large sums of money towards sale consideration.
The plaintiff is even now ready and willing to perform and complete his obligations under the agreement. He is prepared to pay balance sale consideration of Rs.8,45,000/- and get sale deed executed at his costs. The defendants are liable to execute the sale deed in favour of the plaintiff in respect of the suit property and place him in vacant possession of the suit property. Hence, this suit for 9 O.S.No.1808/2003 specific performance of the contract directing the defendant to execute sale deed conveying to the plaintiff the schedule properties by way of absolute sale deed and get the same registered and deliver vacant possession of the schedule property and to form a 40ft road to item No.II of the schedule property from the existing road, which connects ring road as shown by letters JKFI in the plan annexed to the plaint under
-the agreement of sale. Hence, the suit.
3. During the course of proceedings, the defendants have sold the property to defendant Nos.11 to 13. They are also impleaded as parties to the suit.
4. The 1st defendant and defendant No.10(a) and
(b) have filed their following written statement denying the plaint averments and contended that suit of the plaintiff is not maintainable and hopelessly barred by limitation. The defendant No.1 states that she is the absolute owner of the property bearing Sy.No.75/1 situated at Bellandur village, Varthur Hobli, Bangalore 10 O.S.No.1808/2003 South Taluk, measuring 2 acres 26 guntas. She sold 10 guntas out of said land to one Zafeerulla Khan and Govindachary under two sale deeds dated 27/01/2000. Then she continued to be in possession of the remaining portion of land as absolute owner. She never entered into any agreement with the plaintiff as alleged in the plaint and never received any consideration amount. The plaintiff who has close contact with this defendant's sons, have created and fabricated the alleged agreement in question. She never intended to sell the schedule properties and she has not executed any agreement in favour of the plaintiff. Since there is no privity of contract between this defendant and the plaintiff, the suit of the plaintiff is not maintainable. The defendant No.10 during her lifetime has sold her share by receiving the consideration amount alongwith other defendants to defendant Nos.11 to 13. After the sale, the defendant Nos.11 to 13 have got the revenue documents in their favour and are in peaceful possession over the 11 O.S.No.1808/2003 schedule property. Plaintiff just creating the document has filed this suit. Hence, prays to dismiss the suit.
5. The defendant Nos.11 to 13 have filed the written statement and additional written statement contending that suit of the plaintiff for the relief of specific performance on the basis of the alleged sale agreement dated 19/09/2000 in respect of suit schedule properties and for other general reliefs as sought for is not maintainable. The suit of the plaintiff is barred by time. The plaintiff has not sought for any amendment to incorporate any prayer against these defendants. Therefore, the suit is not maintainable against these defendants. The plaintiff is aware of the sale deeds in favour of defendant Nos.3,4 and 5 and their family members in respect of property sold by them in favour of these defendants. Inspite of this, there is no specific prayer for cancellation of the sale deeds of these defendants. The present suit is defective and it is incurable one. The suit is bad for non-joinder 12 O.S.No.1808/2003 parties and mis-joinder of unnecessary parties. The existence of suit property is disputed by the defendant. The alleged agreement of sale dated 19/09/2000 from defendant Nos.1 to 10 in respect of payment of sale consideration amount and readiness and willingness of the plaintiff to perform their part of contract is not within the knowledge of these defendants. They are not parties to the agreement of sale. The suit is barred by time and the same is extinguished by efflux of time. The defendants are bonafide purchasers for the valuable consideration from the vendors after verifying the Encumbrance Certificate and Partition Deed and revenue documents relating to the property purchased by them. The defendants have no knowledge of pendency of suit. They have purchased under the sale deeds dated 22/01/2007, 02/02/2007, 14/01/2008 and 08/10/2007. The specific boundaries and description does not fit into the suit schedule properties. The suit schedule properties are totally different and distinct. The doctrine of lispendency is 13 O.S.No.1808/2003 not applicable. These defendants have unnecessarily dragged to the proceedings. The plaintiff's suit is an abuse and misuse of due process of law.
These defendants have purchased the property by investing their hard earned money and they are in possession of the property. The 11th defendant Smt.Vimala has purchased 7.5 guntas in Bellandur village in sy.No.75/1 through registered sale deed and she has acquired absolute right. The 12th defendant has purchased the property under the sale deed and title as conveyed to him and he is in physical possession of the suit schedule property to an extent of 7 ½ guntas of Bellandur village, Varthur Hobli from the 4th defendant and his family members. He is the absolute owner in possession of the property. The 12th defendant has purchased under the sale deed dated 22/01/2007. The 12th defendant has alienated the said property in favour of the 13th defendant for valuable consideration under the registered sale deed. 14 O.S.No.1808/2003 The 13th defendant is in possession of the property. The 12th defendant is General Power of Attorney of the 5th defendant and he has alienated the property to 13th defendant. The purchasers are exercising their right of ownership over the property. The vendors of the defendant Nos.11 to 13, who are defendant Nos.3 to 5 have alienated the property in their favour through registered sale deed. They are shareholders of the property allotted to them under the Partition Deed and same is acted upon and they have alienated their extent of the property. The defendants have acquired right and interest over the property which is questionable and the same does not suffer any legal infirmities. The suit of the plaintiff cannot be decreed as there is no relief against them.
6. The defendant Nos.11 to 13 have also filed their additional written statement. The plaintiff has not sought for any relief against these defendants and the defect is not cured. The sale agreement dated 15 O.S.No.1808/2003 19/09/2000 is not within the personal knowledge of these defendants. These defendants are bonafide purchasers for value based on the Partition Deed and the revenue records. They are the bonafide purchasers and their right is to be protected. If at all the plaintiff has got any remedy, it is only against defendant Nos.1 to 10 and plaintiff is not entitled to any relief against these defendants. The plaintiff is indirectly challenging the sale deed. The court fee paid is not proper. The suit of the plaintiff is highly defective. They are not entitled for any relief of specific performance of contract. Therefore, defendants prayed to dismiss the suit.
.7. On the basis of the above pleadings, the following issues are framed ;
1) Whether the plaintiff proves that the defendants entered into sale agreement dated 19/09/2000 agreeing to sell the suit schedule properties 1 and 2 for Rs.17,00,000?
16 O.S.No.1808/2003
2) Whether the plaintiff proves that the defendant received advance of Rs.75,000/- under the sale agreement ?
3) Whether plaintiff proves that subsequently paid totally a sum of Rs.7,80,000/- as part of the sale consideration ?
4) Whether the plaintiff has been ready and willing to perform his part of the contract ?
5) Whether the first defendant proves that she is the absolute owner and she has not executed any sale agreement in question in favour of the plaintiff ?
6) Whether the plaintiff proves that the defendant agreed to provide 40 feet road to the item No.2 of the suit property ?
7) Whether the plaintiffs are entitled for specific performance and possession of the suit property ?
Addl.Issues :
1) Whether the suit is bad for non-joinder and mis-joinder of parties to the suit ?
2) Whether the suit is barred by limitation ?
3) Whether the defendants No.11 to 13 proves that they are bonafide purchasers for valuable consideration ?
8) What order or decree?
.8. The Power of Attorney of plaintiff has filed his affidavit evidence and examined himself as P.W.-1 17 O.S.No.1808/2003 and got marked Ex.P.1 to Ex.P.32 and closed his side. On behalf of defendants, the 12th defendant has filed his affidavit evidence and examined as D.W-1, and got marked documents Ex.D.1 to Ex.D.22.
.9. Heard the arguments on both the sides. .10. My findings on the above Points are as follows:
Issue No. 1: In the Affirmative 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 : Partly in Affirmative Addl.Issue No.1: In the Negative Addl.Issue No.2: In the Affirmative Addl.Issue No.3: In the Affirmative Issue No. 8 : As per final order for the following:
REASONS .11. Issue Nos.1 to 3 & Addl.Issue No.1 : These issues are taken together for common discussion to avoid repetition of facts.18 O.S.No.1808/2003
In the present case, the plaintiff Sri.C.Sreedharan has instituted the suit for specific performance of contract through his Power of Attorney holder C.Gopalan. During the pendency of the suit, the plaintiff Sreedharan expired and his legal representatives are brought on record. Similarly defendant No.4 expired and his legal representatives are brought on record and defendant No.10, since deceased his legal representatives defendant Nos.10(a) and 10(b) are also on record.
.12. The plaintiff has brought this suit for specific performance of contract on the basis of the agreement dated 19/09/2000 in respect of the suit schedule properties. The description of the suit schedule properties are reproduced below :
SCHEDULE ITEM NO.I All that portion of land bearing Sy.No.75/1 measuring one gunta situated at Bellandur village, 19 O.S.No.1808/2003 Varthur Hobli, Bangalore South Taluk and bounded as follows :
On the East : Property bearing Sy.No.72/3 West: Road North: Remaining portion of same survey No.75/1 belonging to the plaintiff South: Remaining portion of same survey No.75/1 belonging to Zafeerulla Khan And Govindacharya ITEM NO.II All that portion of land being South-Eastern corner of Sy.No.75/1, measuring twenty-two and half gunatas situated at Bellandur village, Varthur Hobli, Bangalore South Taluk and bounded as follows : On the East : Partly property bearing Sy.No.72/3 and Partly property bearing Sy.No.75/3 West: Remaining portion of same Sy.No.75/1 North: Proposed 40 ft. wide road South: Property bearing Sy.No.75/2 According to the plaintiff, the defendant Nos.1 to 10 have agreed to sell the suit property i.e., 1 gunta of the land bearing Sy.No.75/1 of Bellandur village, Varthur Hobli described as item No,1 and they have 20 O.S.No.1808/2003 agreed to sell an extent of 22 ½ guntas of land bearing Sy.No.75/1 of Bellandur village i.e., item No.2 for a sale consideration of Rs.17,00,000/-. They have agreed to provide them 40 ft road as approach road to item No.2 of the schedule property from the existing road connecting to the ring road of Sarjapura road. As per the terms of the agreement, Rs.75,000/- was paid to the defendant Nos.3,4 and 5 by way of cheque and the defendants agreed to complete the sale transaction within the period of 12 months from the date of agreement after making out good and marketable title to the schedule properties. Subsequently they received payments from the plaintiff amounting to Rs.7,80,000/- out of sale consideration of Rs.17,00,000/-. The defendants have received the amount even after expiry of the period prescribed in the agreement of sale for completing the sale transaction. The time is not the essence of the contract.21 O.S.No.1808/2003
.13. The plaintiff made demand to complete the sale transaction, but the defendants made promise and they have not completed the sale transaction. By notice dated 21/10/2002, the plaintiff called them to execute the registered sale deed and the notice have been returned with an endorsement as 'party refused'. They have refused to receive the notice and they failed to complete the sale transaction. The plaintiff was ever ready and willing to perform his part of contract. .14. The plaint is amended and para No.6(a) is inserted to the plaint and there is pleading to the effect that after the sale agreement, the partition is effected in their family and the schedule property was allotted to defendant Nos.4,5 and 6. They have received the sale consideration amount subsequent to institution of the suit. But they have executed sale deed in favour of defendant Nos.11 to 13 and the sale is hit by principles of lis-pendis during the pendency of the suit and title is not passed in favour of the defendant Nos.11 to 13 22 O.S.No.1808/2003 and the sale deed is null and void. Hence, plaintiff sought to direct the defendants to execute sale deed conveying the suit schedule properties to the plaintiff by way of absolute sale and getting it registered and deliver vacant possession of the suit properties and to form 40ft road to item No.2 of the schedule property from the existing road, which connects to the ring road and Sarjapur road as shown in the plaint sketch. .15. In order to prove the case of the plaintiff, the Power of Attorney holder Gopalan has entered into the witness box by filing his evidence affidavit. He has stated the plaint facts. Apart from his oral evidence, he has produced the documents Ex.P.1 to Ex.P.32. P.W-1 made an application for further examination-in- chief and produced the documents relating to his income tax returns.
.16. As against the evidence of the plaintiff, the first defendant, who has filed the written statement, has not adduced the evidence. The other defendants 23 O.S.No.1808/2003 remained absent and were placed exparte and they have not participated in the proceedings. Subsequent purchasers have filed their detailed written statement. D.W-1, P.Ravindra is examined and he has produced the documents Ex.D.1 to Ex.D.22.
.17. In the course of arguments, the learned counsel appearing for the plaintiff submitted that action is brought for specific performance of contract on the basis of the sale agreement dated 19/09/2000 in respect of item Nos.1 and 2 of the schedule property situated in Sy.No.75/1 measuring 1 gunta and 22½guntas respectively. The time is not the essence of the contract as per the agreement. The defendants have received the amount even after the agreement. The defendant Nos.4 and 5 have alienated the property during the pendency of the suit and the purchasers are brought on record. The notice was caused to the defendants calling upon them to execute the registered sale deed on the basis of the sale agreement, but they 24 O.S.No.1808/2003 have failed to do. The plaintiff was ever ready and willing to perform his part of contract. Moreover, he contended that defendants remained absent more particularly the defendant Nos.4 and 5, who have received the amount have not filed their written statement. In view of the provision under Order VIII Rule 5 of Code of Civil Procedure, the plaint averments made by the plaintiff is deemed to be admitted and the plaintiff is entitled for the decree of specific performance of contract. Further, he argued that purchasers who have purchased during the pendency of the suit have no right over the suit property and these defendant Nos.11 to 13 have to join the other defendants to execute registered sale deed in favour of the plaintiff and to deliver the possession of the property and requested to decree the suit as prayed for.
25 O.S.No.1808/2003
.18. In support of his arguments, the learned counsel for the plaintiff has relied on the following decisions reported in :
1. (2008)5 S.C.C 796 (Guruswamy Nadar V/s P.Lakshmi Ammal(Dead) through LRs and others)
2. Manu/UP/1020/1997, Hon'ble High Court of Allahabad (Raja Ram V/s Shanti Devi)
3. (1999) 8 S.C.C 396 (Balraj Taneja and another V/s Sunil Madan and another)
4. ILR 2001 Kar. 546 (Smt.Aisha Bi and antoher V/s M.Shamsher Khan) .19. The learned counsel appearing for purchasers, defendant Nos.11 to 13 submitted that the suit of the plaintiff as prayed is not maintainable. The plaintiff has not brought the necessary parties Zafeerulla Khan and Govindachary. The suit as brought for is defective. The item No.1 is allotted to one Vasu... and he is not a party and he is a co-parcerner.
The suit is bad for non-joinder of necessary parties. 26 O.S.No.1808/2003 Further, he contended that as per the agreement of sale, time is the essence of contract. The contract had to be completed within 12 months. The plaintiff have not made any efforts. The plaintiff was not ready and willing to perform his part of contract though the agreement is of the year 2000. The defendant Nos.11 to 13 are the bonafide purchasers for value without notice of the sale agreement and the suit filed by the plaintiffs. The plaintiff cannot gain any unfavour advantage against the defendants. The RTC extracts are produced after filing of the suit and RTC mentioned that there is a partition and there is no such reference in the sale agreement. The plaintiffs are not entitled for the decree for specific performance of contract and he relied on the decisions reported in :
1. ILR 2007 KAR 2844 (Karnataka Small Industries Marketing Corporation Ltd., V/s M/s.Padma Textiles by its Proprietor)
2. ILR 2014 KAR 1252 (Sri.Munithayappa V/s Sri.R.Krishna Murthy and another) 27 O.S.No.1808/2003
3. ILR 2014 KAR 233 (Smt.Padmini Raghavan V/s Mr.H.A.Sonnappa, since dead by his LRs and others)
4. ILR 2015 KAR 2809 (Sri.T.S.Channegowda V/s Sri.H.Thopaiah and another) .20. The burden is on the plaintiff to prove that defendant Nos.1 to 10 have agreed to sell the suit schedule properties item Nos.1 and 2 and executed registered sale agreement dated 19/09/2000.
According to the plaintiff, the defendant Nos.1 to 10 herein entered into the agreement of sale with the plaintiff. Subsequently, they partitioned their family properties. In the said partition, the suit schedule property was allotted to defendant Nos.4 to 6 and they have received the part consideration of the amount before the instituting the suit. Further, the said defendants have executed the sale deed in favour of defendant Nos.11 to 13 and sold the suit property measuring 22 ½ guntas. The plaintiff to make to clear has submitted a hand sketch marked at Ex.P.25. 28 O.S.No.1808/2003 Ex.P.25 discloses the sketch A, B, C and D is 1 gunta land in Sy.No.75/1 which is item No.1 of the property and item No.2 is shown in the letters 'XYZMX'. The property shown in pink colour and the property shown in blue colour is the property sold by the Gopala Reddy to Narayanaswamy. The defendant Nos.11 to 13 are the subsequent purchasers during the pendency of the suit. The suit is filed to enforce the agreement dated 19/09/2000 and the same is marked as Ex.P.3. The agreement of sale is produced by the plaintiff for the scrutiny of this Court. It is an agreement of sale executed by defendant Nos.1 to 10 in favour of the plaintiff on 19/09/2000. As per the agreement, defendant Nos.4 to 6 have received a sum of Rs.25,000/- each by way of cheque as advance amount under the sale agreement. The sale consideration is for Rs.17,00,000/- and out of the sale consideration amount, the defendant Nos.4 to 6 have subsequently received the amount from the plaintiff as per the details shown in the plaint and the demands 29 O.S.No.1808/2003 are made. The defendants have received a sum of Rs.7,80,000/- and the balance consideration amount is Rs.9,20,000/-.
.21. The plaintiff died during the pendency of the suit and his legal representatives are on record. The plaint presented by the Power of Attorney holder Gopalan on behalf of plaintiff and he is examined as P.W-1 on the strength of his Power of Attorney. He has stated the plaint facts in his evidence affidavit. He has specifically stated that defendants have received a part consideration amount of Rs.7,80,000/- under the suit agreement and have agreed to sell the property within the prescribed period of 12 months from the date of agreement. Even after expiry of prescribed time, the defendants have received the amount. During the pendency of the suit, the defendants have sold the property to the subsequent purchasers and they are brought on record as defendant Nos.11 to 13. 30 O.S.No.1808/2003
.22. The 1st defendant has filed her written statement and she has not stepped into the witness box to give her evidence. The contention taken by the 1st defendant that she is the absolute owner of the suit property is not supported by the documentary evidence and the same cannot be accepted. The subsequent purchasers got examined one Ravindra as D.W-1 and he has produced the copy of the Partition Deed and as per the registered Partition Deed, the subject matter of 22 ½ guntas is fallen to the share of defendant Nos.4 to 6. The plaintiff has relied on the decisions reported in (1999) 8 S.C.C 396 (Balraj Taneja and another V/s Sunil Madan and another) and ILR 2001 Kar 546 (Smt.Aisha Bi and another V/s M.Shamsher Khan). In view of the provisions under Order VIII Rule 5 of the Code of Civil Procedure, the defendants who have failed to participate in the proceedings and cross- examine P.W-1, the plaint averments so far as the execution of suit agreement on 19/09/00 vide Ex.P.3 is to be accepted. The defendant Nos.1 to 10 have 31 O.S.No.1808/2003 agreed to sell the suit property to the plaintiff and executed the suit agreement. The defendant Nos.4 to 6 have received an advance amount as per the suit agreement, the time is prescribed to execute the sale deed for a period of 12 months. The defendants have received the part consideration amount after the expiry of prescribed period under the agreement. The defendant Nos.1 to 10 have not contested the matter and they have not denied the execution of the suit agreement in favour of the plaintiff. Therefore, I conclude that the defendants have entered into sale agreement on 19/09/2000 agreeing to sell the suit property item Nos.1 and 2 for a sale consideration of Rs.17,00,000/- and the defendants received advance amount of Rs.75,000/- under the sale agreement by way of cheques. Further, they have received total sum of Rs.7,80,000/- subsequently as part of sale consideration amount under the suit agreement Ex.P.3. The contention of the purchasers defendant Nos.11 to 13 that 1 gunta of land, item No.1 is a part 32 O.S.No.1808/2003 of the property sold to Zafeerulla Khan and Govindachary, the agreement is defective. The defendant Nos.1 to 10 had not entered into defence that suit agreement is created by plaintiff and their title is defective and this contention cannot be raised by the subsequent purchasers. The plaintiffs have paid a part consideration amount to defendant Nos.4 to 6. Subsequently, there was partition effected in the family and Partition Deed is at Ex.D.3 and the property in question, the subject matter of the sale agreement has fallen to the share of defendant Nos.4 to 6, 7 ½ guntas each. Therefore, the plaintiff has successfully proved that defendant Nos.1 to 10 have agreed to sell the suit properties and received sale consideration of Rs.7,80,000/- under the suit agreement. Therefore, I conclude that the plaintiffs have proved the execution of suit agreement by defendant Nos.1 to 10. The other defendant Nos.1 to 3 and 7 to 10 have not received any sale consideration. The contention taken by defendants that suit is bad for non-joinder of 33 O.S.No.1808/2003 necessary parties i.e., Zafeerulla Khan and Govindachary cannot be accepted. Item Nos.1 and 2 are covered under the suit agreement. Therefore, I answer issue Nos.1 to 3 in the Affirmative and Addl.issue No.1 in the Negative.
.23. Issue Nos.4 : .25. The burden is on the plaintiff to prove issue No.4 that plaintiff was ever ready and willing to perform his part of the contract. The plaintiff has proved the suit agreement of sale at page No.4, para No.2 that :
The price payable by the Purchaser to the Vendors for the schedule property, subject to the Vendors obtaining and furnishing all the requisite documents of title for making out good and marketable title, shall be Rs.17,00,000/- only.
Further in para No.3 that :
The sale of the schedule property shall be completed within a period of 12 months from the date of this agreement subject to the vendors obtaining and furnishing the necessary documents to prove good and marketable of title 34 O.S.No.1808/2003 deeds of the property as per the requirement list to be issued by the Purchaser's counsel.
Further at page No.7 at para No.8 of the suit agreement :
It is agreed between the parties that the vendors shall, at their cost, provide a 40 feet wide road running East to West, entrance from the existing 40 feet wide road connecting Sarjapur road and ring road (North to South) between the property stated in item No.2 of the schedule 'B' and the private property owned by Zafeerulla Khan and Govindachary and the other contention relating to clearance from the income tax.
Admittedly the sale transaction is not completed within the prescribed period of time as per the covenants of the suit agreement. The plaintiff has produced the RTC extract Ex.P.22 for the year 2001-
02. The name of the defendant Rathnamma and other purchasers Zafeerulla Khan and Govindachary and Jayaram Reddy are shown in the record of rights. The name of vendors and subsequent purchasers defendant Nos.4 to 6 is entered in the RTC extract on 35 O.S.No.1808/2003 the basis of the partition. The mutation extract is at Ex.P.24. Ex.P.25 is the hand sketch map produced by the plaintiff. The hand sketch map clearly discloses that 7 ½ guntas is fallen to the share of defendant Nos.4 to 6 each and the entries corresponds with the Partition Deed. The sale agreement is before partition.
As per the terms of the agreement, the sale transaction has to be completed within 12 months. The plaintiff has produced copy of the notice dated 21/10/2002 calling upon the defendant to execute the registered sale deed. As per the plaint averments, the defendants have refused to receive the notice. The plaintiff has not produced any document to show that defendants have refused to receive the notice. There is no postal receipts and endorsement and the acknowledgement that defendants have refused to receive the notice dated 21/10/2002. Even assuming that plaintiff has caused notice to defendant vide Ex.P.1, the notice is issued by the plaintiff after the prescribed period of 12 months from the date of suit agreement Ex.P.3 dated 36 O.S.No.1808/2003 19/09/2000. The plaintiff has not caused any notice to the defendants within the prescribed form as per the terms of the agreement calling upon the defendants to execute registered sale deed, more so, to call for the list of documents pertaining to the title of the defendants. The RTC discloses the name of the defendant Rathnamma when the suit agreement was entered. Subsequently, there was partition deed in the year 2002.
.24. In the present case, the plaintiff asserts that he was ever ready and willing to perform his part of contract. The plaintiff has specifically contended that under the suit agreement, defendant Nos.4 to 6 have received a sum of Rs.7,80,000/- out of sale consideration of Rs.17,00,000/- and the remaining balance is Rs.9,20,000/- and he was ever ready and willing to perform his part of contract. The notice was issued to defendants vide Ex.P.21 dated 21/10/2002 calling upon the defendants to execute the registered 37 O.S.No.1808/2003 sale deed in favour of the plaintiff pursuant to the suit agreement and the defendants have refused the notice. It is pertinent to note that plaintiff has not produced postal receipts, endorsements and postal acknowledgement for having refused the notice. The notice issued to the defendants is highly doubtful. .25. The learned counsel appearing for the plaintiff submitted that time is not essence of the contract and the defendants have failed to comply with the terms of the agreement and they have not formed 40 ft road as per the terms of the agreement and the time is not essence of the contract. The suit is filed well within the time.
.26. As per the agreement Ex.P.3, time of 12 months is fixed for completion of the sale transaction. The plaintiff has not paid the entire sale consideration amount. The plaintiff has not paid the entire sale consideration amount to the defendant Nos.4 to 6 38 O.S.No.1808/2003 during the period of 12 months from the date of agreement.
.27. P.W-1 has produced the statement of income- tax returns marked at Ex.P.31 and Ex.P.32 that the plaintiff is having sufficient funds to pay the balance sale consideration and to take the sale deed. The defendants have failed to comply with the conditions imposed in the suit agreement i.e., to form the 40ft road as per the agreement. On perusal of Ex.P.31, it is clear that in respect of Sy.No.75/1 of Bellandur village, a sum of Rs.1,00,000/- is paid to Rathnamma. There is no such corresponding entry in the payment details and the receipt from Smt.Rathnamma. Merely because, the plaintiff is an income-tax assessee, it cannot be inferred that he is ever ready and willing to perform his part of contract. The payment is not made within the specified period of 12 months under the suit agreement. Mere mentioning of the words that plaintiff is ready and willing to perform his part of contract in 39 O.S.No.1808/2003 the absence of their doing any readiness and willingness so stated in the plaint. Therefore, mere production of the income-tax assessment and balancesheet is not sufficient to prove the readiness and willingness. Thus, I hold that material placed by the plaintiff is not sufficient to prove that he was ever ready and willing to perform his part of contract. Therefore, I answer issue No.4 in the Negative.
.28. Issue Nos.5 and 6 & Addl.Issue Nos.2 and 3 : All these issues are interlinked with each other and they are taken together for common discussion to avoid repetition of facts.
The plaintiff is sale agreement holder vide Ex.P.3 and he has brought this suit for specific performance of the contract against the defendant Nos.1 to 10. During the pendency of the suit, alienation is effected by the defendant Nos.4 to 6 in favour of defendant Nos.11 to 13 in respect of their share and the plaintiff has got amended plaint and prayer column and 40 O.S.No.1808/2003 produced the absolute sale deed executed by defendant Nos.4 to 6 during the pendency of the suit. The certified copy of the sale deed placed on record are at Ex.P.26, the sale deed executed by the Narayan Reddy and his family Lakshmidevi and on behalf of minors in favour of Smt.Vimala and Ex.P.27, the sale deed executed by Sri.Sreenivas Reddy and Smt.Meena on behalf of minor in favour of Sri.P.Ravindra, Ex.P.28, the Encumbrance Certificate, Ex.P.29, the sale deed executed by defendant No.11 in favour of defendant No.12 and Ex.P.30, the absolute sale deed executed in favour of defendant No.13.
.29. The 1st defendant has specifically contended in her written statement that she is the absolute owner of the suit property and she has not executed any sale agreement in favour of the plaintiff. The 1st defendant has filed her written statement, but she has not examined herself and there is no evidence on record to show that 1st defendant is the absolute owner of the 41 O.S.No.1808/2003 property. The 1st defendant Rathnamma in Ex.P.3, the suit agreement is party and she is the mother of other defendants. She has put her LTM on the suit agreement. Now the contention taken by the 1st defendant that she is the absolute owner of the property and she has not signed the suit agreement cannot be accepted. It is no doubt the case of the plaintiff that 1st defendant has not received any sale consideration amount. Therefore, the 1st defendant has failed to prove that she is the absolute owner and she has not executed any sale agreement in question in favour of the present plaintiff.
.30. The learned counsel appearing for defendant Nos.11 to 13 submitted that plaintiff has failed to comply with the terms of the agreement and the agreement Ex.P.3 itself is defective. The sale transaction could not be completed within the period of time of 12 months. The time is the essence of contract. The entire sale consideration of amount is 42 O.S.No.1808/2003 not paid within the prescribed period. If a decree for specific performance is granted, the defendants would be put to greater loss and hardship rather than the plaintiff. The defendants have invested their hard earned money and they are the bonafide purchasers for value without notice and in this connection he relied on the decisions reported above. On careful perusal of agreement of sale, it is clear that as per the terms of the agreement, the sale transaction is to be completed within 12 months. The plaintiff has to give a list of documents to be furnished to the defendants through his counsel vide clause 4 of the agreement. The plaintiff so far has not complied with the terms of the agreement and he has not asked for the documents from the defendants. Moreover, there is a clause for 40ft widening of road as mentioned above as per the agreement, the formation of road cannot be a condition precedent as the road widening has to be undertaken and carried out by the concerned authorities. This 43 O.S.No.1808/2003 condition stipulated in the suit agreement is not completed within the prescribed period. .31. As per the terms of the suit agreement, the time is essence of the contract. The sale transaction is not completed within the stipulated period prescribed in the suit agreement. The plaintiff has caused notice on 21/10/2002 after 20 months of the suit agreement. The contention taken by the plaintiff is that he was ready and willing to perform his part of contract and he has produced copy of income-tax returns Ex.P.31 and Ex.P.32 of Sri.Sreedharan. It appears that plaintiff is the partner of Gopalan Enterprises. His taxable income is shown in the assessment and the balance sheet on 31/03/2001, which discloses that some advances are made, as per the schedule for balancesheet discloses that in respect of Bellandur Amanikhane, the Sy.No.75/1, Rathnamma is shown as Rs.1,00,000/-. This entry is not supported by any receipt from Smt.Rathnamma for having received 44 O.S.No.1808/2003 Rs.1,00,000/-. The income tax returns does not reflect the suit agreement. The contention taken by the plaintiff to the effect that he was ready and willing to perform his part of contract cannot be accepted. The contract is not completed within the time frame. There is delay by the plaintiff on payment of the entire sale consideration amount to the defendants within the prescribed period. The entry shown in the schedule of balance sheet of Bellandur in respect of Sy.No.75/1. The name of Rathnamma is shown whereas Rathnamma has not received any amount under the said agreement. Therefore, I hold that plaintiff has not taken any steps to conclude the contract within prescribed time. The time is the essence of the contract as per the suit agreement Ex.P.3. The suit is filed in the year 2003 dated 11/03/2003 and the suit is barred by time as the suit transaction is not completed. As per the terms of the contract, it is extinguished by efflux of time.
45 O.S.No.1808/2003
.32. The plaintiff contended that defendant agreed to provide 40 ft to item No.2 of the suit property. As per the terms of the agreement, clause 18, the 40 ft road is referred from suit property linked to Sarjapur road. The plaintiff has not caused any notice to the defendant within the period of prescribed time in the suit agreement for getting the road done in item No.2 of the property. Moreover, the widening of the road cannot be undertaken by the defendant as it is to be carried out by the concerned authorities. The plaintiff on the basis of the agreement has not taken any steps for road widening. There is no material evidence on record to establish that defendants are liable to provide 40 ft road to item No.2 of the suit property and to complete the sale transaction. Therefore, I answer issue Nos.5 and 6 in the Negative and Addl.Issue Nos.2 and 3 in the Affirmative. .33. Issue No.7 : The relief of specific performance of contract sought for by the plaintiff to this particular 46 O.S.No.1808/2003 remedy of specific performance involves a variety of circumstances, incidents and conditions which may prevent its use. Infact these conditions leave the plaintiff without its remedy. If the relief of specific performance is granted, it gives the plaintiff an unfair advantage and it cannot be free from any imposition, the performance will be oppressive upon the defendants. The Court has discretionary in the matter of decreeing the specific performance of contract which empowers the Court to refuse the specific performance of contract. The sale deed is effected by the defendant Nos.4 to 6 in the year 2007 during the pendency of the suit. The manner in which the plaintiff has prosecuted the matter clearly indicates that there is a delay in enforcing the suit agreement. Therefore, the specific performance cannot be granted. The plaintiff is not entitled for the relief of specific performance of contract against defendant Nos.1 to 10 including the subsequent purchasers defendant Nos.11 to 13. In my considered opinion, the plaintiff is entitled for the 47 O.S.No.1808/2003 alternative relief of earnest money paid to the defendant Nos.4 to 6 under the suit agreement, a sum of Rs.7,80,000/- alongwith interest. The suit is brought by the plaintiff is not within the prescribed period under the suit agreement. The defendant Nos.11 to 13 have purchased the property in the year 2007. D.W-1 is examined in this case and he has contended that purchasers are bonafide purchasers for value without notice to the suit agreement and pendency of the suit. The plaintiff has relied on the decision reported in (2008) 5 S.C.C 796 in the case of Guruswamy Nadar V/s P.Lakshmi Ammal (dead) through LRs and others wherein it is held that :
Specific Relief Act, 1963-S.19(b)- Subsequent sale of same property by owner to another purchaser-Effect of lis pendens between original parties- Party purchasing property after suit had been filed by original purchaser-Held, such party did not get good title-Benefit of exception not available to it in view of doctrine of lispendens. 48 O.S.No.1808/2003 He also relied on the decision of Hon'ble Allahabad High Court decided on 20/03/1997 in the case of Raja Ram v/s Shanti Devi. The decision referred by the learned counsel for the plaintiff are not applicable to the case on hand. As the plaintiff has not made out the case for enforcing the suit agreement, the decision relied by the learned counsel are not applicable to the case on hand. The suit agreement is in respect of defendant Nos.1 to 10 and out of which defendant Nos.4 to 6 have alienated the property after the same is fallen to their share under the registered Partition Deed. The plaintiff has not taken any steps after the suit agreement to enforce the agreement after the partition is effected between the family members of the defendant Nos.1 to 10. There is no specific notice to defendant Nos.4 to 6. The plaintiff has delayed this action for specific performance. As per the terms of the contract, the time is essence of the contract and the sale transaction to be completed within specified time of 12 months, the condition is imposed under the suit 49 O.S.No.1808/2003 agreement as to formation of 40ft road by the defendants cannot be taken into consideration, the formation of the road is not out of the reach of the defendants. The plaintiff is not entitled for the relief of specific performance of contract, in the substitute, he has to be compensated for refund of earnest money paid under the suit agreement alongwith 10% interest on damages. I am of the opinion that defendant Nos.11 to 13 are the bonafide purchasers for valuable consideration. Therefore, I answer issue Nos.4 to 6 in the Negative, issue No.7 partly in the Affirmative.
.34. Issue No.8 : In view of my answers to above issues, suit of the plaintiff to enforce the suit agreement is dismissed. Accordingly, I pass the following :
ORDER The suit of the plaintiff is decreed in part as under :
The suit of the plaintiff for specific performance of contract is hereby dismissed.50 O.S.No.1808/2003
The plaintiff is entitled for alternative relief for refund of earnest money of Rs.7,80,000/- paid under the suit agreement to defendant Nos.4 to 6 alongwith 10% interest by way of damages from the date of suit till realization.
Draw decree accordingly.
(Dictated to the Judgment Writer directly on computer, typed by her, corrected and then pronounced by me in open court this the 28th day of January, 2017.).
(Muhammed Khan .M. Pathan) V ADDL.CITY CIVIL JUDGE BANGALORE.
***** ANNEXURE List of witnesses examined for the plaintiff :
P.W-1 C.Gopalan List of witnesses examined for the defendant :
D.W-1 P.Ravindra List of documents marked for the plaintiff :
Ex.P.1 Certified copy of the Power of Attorney dated 31/01/2000 Ex.P.2 Certified copy of the Power of Attorney dated 51 O.S.No.1808/2003 07/11/2007 Ex.P.3 Sale agreement dated 19/09/2000 Ex.P.3(a) Signature of Jayaram Reddy Ex.P.3(b) Signature of Narayana Reddy Ex.P.3(c) Signature of Srinivas Reddy Ex.P.3(d) Signature of Gopala Reddy Ex.P.3(e) Signature of Vasudev Reddy Ex.P.3(f) Signature of T.Susheela Ex.P.3(g) Signature of Prameela Ex.P.3(h) Signature of Manju Ex.P.3(i) Signature of T.Gajalakshmi Ex.P.3(j) Signature of P.W-1 Ex.P.4 Receipt dated 19/09/2000 Ex.P.4(a) Signature of Gopal Reddy Ex.P.5 Receipt dated 19/09/2000 Ex.P.5(a) Signature of Narayana Reddy Ex.P.6 Receipt dated 19/09/2000 Ex.P.6(a) Signature of Srinivas Reddy Ex.P.7 Receipt dated 31/10/2000 Ex.P.7(a) Signature of Jayaram Reddy Ex.P.8 Receipt dated 31/10/2000 Ex.P.8(a) Signature of Narayana Reddy Ex.P.9 Receipt dated 09/12/2000 Ex.P.9(a) Signature of Gopal Reddy Ex.P.10 Receipt dated 02/01/2001 Ex.P.10(a) Signature of Srinivas Reddy Ex.P.11 Receipt dated 09/01/2001 Ex.P.11(a) Signature of T.Narayana Reddy Ex.P.12 Receipt dated 08/03/2001 Ex.P.12(a) Signature of Srinivas Reddy Ex.P.13 Receipt dated 08/03/2001 Ex.P.13(a) Signature of Jayaram Reddy Ex.P.14 Receipt dated 09/03/2001 Ex.P.14(a) Signature of Gopal Reddy Ex.P.15 Receipt dated 19/03/2001 Ex.P.15(a) Signature of Jayaram Reddy Ex.P.16 Receipt dated 17/04/2001 Ex.P.16(a) Signature of Gopal Reddy Ex.P.17 Receipt dated 29/05/2001 Ex.P.17(a) Signature of Jayaram Reddy Ex.P.18 Receipt dated 01/06/2001 Ex.P.19 Receipt dated 11/12/2001 Ex.P.19(a) Signature of Srinivas Reddy Ex.P.20 Affidavit without swearing before any authority dated 11/12/2001(marked subject to objection) Ex.P.21 Copy of the legal notice dated 21/10/2002 52 O.S.No.1808/2003 Ex.P.22 & 23 RTC extracts Ex.P.24 MR extract Ex.P.25 Rough sketch of the present status of the property Ex.P.26 Certified copy of the sale deed dated 02/02/2007 Ex.P.27 Certified copy of the sale deed dated 14/01/2008 Ex.P.28 Encumbrance Certificate Ex.P.29 Certified copy of the sale deed dated 08/10/2007 Ex.P.30 Sale deed dated 22/01/2007 Ex.P.31 Income tax returns filed by Sridharan Ex.P.32 Income tax returns filed by Gopalan Enterprises List of documents marked for the defendants :
Ex.D.1 Certified copy of the Mutation Register extract Ex.D.2 37 RTC extracts in Sy.No.75 of Bellandur village Ex.D.3 Certified copy of the family Partition Deed Ex.D.4 Registered sale deed dated 02/02/2007 Ex.D.5 Sale deed dated 08/10/2007 Ex.D.6 Sale deed dated 14/01/2008 Ex.D.7 Registered General Power of Attorney Ex.D.8 Sale deed dated 22/01/2007 Ex.D.9 Registered General Power of Attorney Ex.D.10 Certified copy of the sale deed dated 11/09/2003
Ex.D.11 to 17 Mutation register extracts Ex.D.18 Encumbrance Certificate Ex.D.19 to 21 Photos Ex.D.22 CD (Muhammed Khan .M. Pathan) V ADDL.CITY CIVIL JUDGE BANGALORE **** 53 O.S.No.1808/2003