Bangalore District Court
Sri.H.J.Siwani vs Smt.Jayalakshmi Siddaiah on 1 April, 2019
IN THE COURT OF XXXV ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-36)
DATED ON THIS THE 01st DAY OF APRIL 2019
Present: Sri.Manjunath.G.A., B.A.L.,L.L.B.,
XXXV Addl.CC & SS Judge, Bengaluru.
O.S.No.3879/1997
Plaintiffs : 1. Sri.H.J.Siwani,
S/o.J.K.Siwani,
Aged about 36 years,
2. Sri.M.J.Siwani,
S/o.J.K.Siwani,
Aged about 35 years,
Both residing at No.122,
5th Main, Jayamahal Extension,
Bangalore-560 046.
(By Sri.K.K. & A.R., Advocates)
-Vs-
Defendants : 1. Smt.Jayalakshmi Siddaiah,
Major,
W/o.late Sri.Siddaiah,
Residing at No.376, II Block,
10th Cross, Jayanagar,
Bangalore-560 011.
Since deceased by her LR's
1.(a) Sri.S.Vivekanand,
S/o.Smt.Jayalakshmi Siddaiah,
Major,
1.(b) Sri.S.Dayananda,
S/o.Smt.Jayalakshmi
Siddaiah,
Major,
2 O.S.No.3879/1997
1.(c) Sri.S.Ramananda,
S/o.Smt.Jayalakshmi Siddaiah,
Major,
Defendants 1(a) to (c)
Residing At No.14, I Main Road,
Opp.to Industrial Estate,
Rajajinagar,
Bengaluru-560 021.
2. Sri.S.R.Chandrashekar,
Major,
S/o.Sri.M.S.Ramachandra Murthy,
Residing at No.1183/71,
9th Main, Srirampuram,
Bengaluru-560 021.
3. Sri.R.Kadambali,
Aged about 42 years,
S/o.Sri.Srinivasa Kadambali,
No.5, M.A.S.Complex,
7th Cross, 3rd Main,
Malleswaram,
Bengaluru-560 003.
Since deceased
Represented by his LR's
3.(a) Smt.Vidyalakshmi.R.,
Aged about 40 years,
W/o.Late Kadamballi,
Assistant Regional Manager,
Karnataka Bank Ltd.
Regional Office Udupi,
Karnataka-576 101.
(D.1-dead, D.1(a) to D.1(c)-K.B.S.A. &
K.S.N., D.2-M.M.A., D.3-dead, D.3(a) -
G.R.A., Advocates)
3 O.S.No.3879/1997
Date of institution of the suit : 22-05-1997
Nature of the suit : Specific Performance
Date of commencement of
recording of the evidence : 10-06-2008
Date on which the judgment
was pronounced : 01-04-2019
Total duration : Years/s Month/s Day/s
21 10 22
(MANJUNATH.G.A.)
35th Addl. City Civil & Sessions
Judge, Bengaluru.
JUDGMENT
The plaintiffs have filed this suit against the defendants for the relief of Specific Performance in respect of 'A' schedule property based on 23 Sale Agreements dated 18.03.1995, in the alternative for refund earnest money of Rs.49,99,993/- and for damages for Rs.1,77,70,000/-.
2. In brief, the case of the Plaintiffs are as follows:-
The plaintiffs are carrying on the business as Developers, Builders under the name and style M/s.H.M.Constructions, as partners. The first defendant is the absolute owner of the land bearing Sy.No.75, measuring 4 4 O.S.No.3879/1997 acres, 36 guntas, situated at Thoobarahalli Village, Varthur Hobli, Bengaluru North Taluk, Bengaluru, which is shown as 'A' schedule property. The defendant No.1 got 'A' schedule property converted for residential purposes, by an order dated 25.11.1991. The defendant No.1 has entered in to a Partnership with defendant No.2 for developing 'A' schedule property under the name of M/s. Sri.Sadashiva Developers.
The first defendant also has appointed and constituted the defendant No.2 has her General Power of Attorney to deal with the schedule property. The defendant No.1 and 2 admitted the defendant No.3 as a partner in M/s. Sri.Sadashiva Developers and defendant No.3 was admitted into the said partnership Firm. The defendant No.1 appointed and defendant No.3 as her Power of Attorney. The second defendant also appointed the third defendant as his General Power of Attorney to deal with the property. Defendant No.3 in his capacity as a Power of Attorney Holder of defendants No.1 and 2, entered into a agreement with the plaintiffs (23) in respect of 'A' schedule property. 'A' schedule property divided into (23) undivided shares, each measuring 9,900 sq.ft., which is described in 'B' schedule property. All the (23) 5 O.S.No.3879/1997 agreements executed on 18.03.1995. The price payable the plaintiffs to the defendants for the sale of each agreement is Rs.9,90,000/-. The plaintiffs have paid a sum of Rs.1,30,435/- as advance, by a cheque dated 20.03.1995, in the name third defendant under each agreement. A sum of Rs.86,956/- shall be paid to the defendants on obtaining of conversion certificate, along with Urban Land Ceiling permission for the purpose of construction and sum of Rs.13,043/- shall be paid to the defendants towards expenses.
3. The sale shall be completed within three months from the date of agreement or defendants obtaining and furnishing the following documents:
(a) The price payable by the plaintiffs to the defendants for the sale of the 'B' schedule property is Rs.9,90,000/-
(Rupees Nine Lakh Ninety Thousand only) calculated at the rate of Rs.100/- per square feet.
(b) A sum of Rs.1,30,435/- (Rupees One Lakh Thirty Thousand Four Hundred Thirty Five only) was paid as 6 O.S.No.3879/1997 advance, by way of and by cheque dated 20.03.1995, drawn on State Bank of India, Jayamahal extension Branch, in the name of the 3rd defendant herein, which has been duly encashed and acknowledged.
(c) A sum of Rs.86,956/- (Rupees Eighty Six Thousand Nine Hundred Fifty Six only) shall be paid to the defendants on obtaining of conversion certificate, along with Urban Land Ceiling Permission, for purpose of construction and sale of the 'A' Schedule Property and a sum of Rs.13,043/- (Rupees Thirteen Thousand and Forty Three only) shall be paid to the defendants towards expenses of obtaining Urban Land Ceiling Permission.
(d) The sale shall be completed within 3 months from the date of the agreement or defendants obtaining and furnishing the following. Whichever is later:
(i) RTC extract from 30.06.1990 till date.
(ii) Tippani and Akarbandh, Village map and pakka Nakai book extract.7 O.S.No.3879/1997
(iii) Endorsement from Land Tribunal confirming that there are no tenancy claims in respect of the schedule property.
(iv) Endorsement from land acquisition officer confirming that there are no acquisition proceedings in respect of the schedule property.
(v) Clearance Certificate under Sec.230A of the Income Tax Act.1961.
(vi) Encumbrance Certificate for the period from 05.05.1962 to till date.
(vii) Latest Tax paid receipt.
(viii) Details for the change of old Survey No.71 to new Sy.No.75.
(ix) Family Tree of the vendor.
(x) Map of the property.
(xi) Endorsement from the Urban Land Ceiling authority if the property is falling within Urban agglomeration.
8 O.S.No.3879/1997
(e) The defendants shall deliver possession of the 'A' Schedule Property to the Plaintiffs on the date of registration of the said deed.
(f) In the event of either party to the agreement committing breach, the aggrieved party shall be entitled to enforce specific performance of the contract and also recover all costs, expenses and losses incurred by the aggrieved party, as a consequence of such breach from the party committing breach.
4. As per terms of agreement time was not essence of the contract. The plaintiffs have paid a sum of Rs.86,956/- by cash to defendant No.3 on 10.05.1995, as per Clause-2 of the agreement. The said payment has been acknowledged by the defendant No.3. The plaintiffs have performed their obligations as per agreement of sale, but defendants have committed breach of the terms of the agreement. Because the permission obtained by the defendants from the office of Urban Land Ceiling Authority is not in conformity. The defendants promised to rectify the said mistake. 9 O.S.No.3879/1997
5. The plaintiffs are ready and willing to perform their part of contract. They are ready with remaining sale consideration. A sum of Rs.14,99,600/- is paid by way of 23 cheques on 20.03.1995. A sum of Rs.15,00,405/- was paid, by way of cash on 18.03.1995. A sum of Rs.19,99,988/- is paid by way of cash on 10.05.1995. The defendant No.3 as acknowledged the receipt of the said amount paid by cash. In all plaintiffs have paid a sum of Rs.49,99,993/- as advance sale consideration. The plaintiffs have been repeatedly, requesting the defendants to perform their part of obligations as stipulated in Clause-3 of the sale agreement. They also made known the fact that the ready with the balance sale consideration. The defendant No.3 though went on promising to comply the obligation, sought for time on one pretext or the other to produce the necessary documents. The plaintiffs came to know that defendant No.3 was trying to sell the suit property in favour of third parties. Surprisingly, defendant No.3 issued a notice on 02.05.1997, wherein it is informed that the agreements are cancelled and advance amount in forfeited. The total sale consideration is Rs.2,27,70,000-. They have already paid a sum of Rs.49,99,993/-. The balance sale 10 O.S.No.3879/1997 consideration is Rs.1,77,70,000/-. As the defendants have cancelled the agreements of sale and have refused to execute regular sale Deeds, the plaintiffs have not issued legal notice calling upon the defendants execute sale Deeds. Therefore, pleading cause of action to the suit at para No.17 of the plaint, it is prayed to decree the suit.
6. The defendant No.1 though appeared before the court, through an advocate has not filed her written statement. Defendant No.2 also though appeared by an advocate had not filed written statement. Defendant No.3 has appeared before through his advocate and filed his written statement. It is contended that, suit is bad for non-joinder of necessary parties. M/s.H.M.Constructions is not made as a plaintiff. The defendant No.1 is the absolute owner of 'A' schedule property is denied, the suit property is the property of partnership Firm of which defendant No.1 and 3 are the partners. As per the understanding between defendant No1 and 2, defendant No.1 has to hand over suit property to the partnership Firm, which would be her investment. The defendant No.2 to get the land converted into non-agricultural 11 O.S.No.3879/1997 purpose and also to get permission from all the Authorities. Once the sites are sold, the land price shall be payable to defendant No.1 and expenses incurred by defendant No.2 shall be given to him. Thereafter, the profit shall be shared equally between in the partners. Subsequently, defendant No.2 voluntarily retired from the Firm. The defendant No.1 has given a Power of Attorney in his favour. He is also the managing partner of the Firm. The defendant No.3 as a Power of Attorney Holder of defendant No.1 and 2 had entered into agreements of sale with the plaintiff. 23 agreements were executed on the request of the plaintiffs. As per the agreement the plaintiffs have to pay money as a when demanded by the defendants. All the documents have been handed over to plaintiffs. The defendant has performed his part of contract. In spite of repeated request, the plaintiffs have not come forward to perform their part of contract. The plaintiffs miserably failed to perform their part of contract. Even after completion of one year and in spite of receiving of the documents, the plaintiffs have not paid the remaining sale consideration. Therefore, having no option, he has canceled the agreement by forfeiting the advance amount. The 12 O.S.No.3879/1997 certificate/permission is given by the authorities. The same is according to law. The defendant never agreed to rectify the mistake. It is true that, a sum of Rs.49,99,999/- is paid by the plaintiffs. The plaintiffs requested the defendants to execute the sale Deeds is denied. The plaintiffs have not paid the remaining consideration in spite of repeated request. At no point of time the plaintiffs approached the defendants. The agreements have been legally terminated. The cause of action pleaded to the suit is denied. Therefore it is prayed to dismiss the suit with cost.
7. During the pendency of the suit defendant No.1 died, her three sons are brought on record as defendant No.1
(a) to D.1(c). defendant No.1(a) and D.1(b) have filed common written statement. defendant No.1(c) is filed written statement independently. However, the defense of defendant No.1(a) to D.1(c) is similar.
8. The defendant No.1 died on 25.05.2002, after suffering from prolonged illness arising out of cancer. The defendants mother was bedridden for several years. Defendant No.1(a) to (c) are Doctors by profession. Defendant 13 O.S.No.3879/1997 No.1(a) and D.1(b) are working at Irland. Defendant No.1(c) is working at Mysore. Their mother Smt.Jayalakshmi Siddaiah was absolute owner of property bearing Sy.No.75, measuring 4 acre 36 guntas. The mother of the defendants was widow, she lived in Bangalore city. Several persons had approached their mother with interest in developing the aforesaid property. The defendant No.1(a) to D.1(c) were not involved in any of such meetings. Defendant No.1(a) to D.1(c) believe that such individuals have taken and advantage of their mother and through dubious means got executed documents to grab the suit property. defendant No.1(a) D.1(c) denied any legally enforceable arrangements between the defendant No.1 or defendant No.2 or defendant No.3. Defendant No.1 was a victim of fraud. There was no legally enforceable partnership between defendant No.1 to defendant No.3. The Defendant No.1(a) to D.1(c) have recently learnt that defendant No.3 has purported to act on behalf of defendant No.1 and pursuant thereto has entered into 23 sale agreements with the plaintiffs. They have further learnt that the defendant No.3 has received a sum of Rs.50,00,000/- from the plaintiffs. They denied that their mother ever authorised defendant No.3 14 O.S.No.3879/1997 to enter into the agreements for sale with the plaintiffs. Huge amount was paid to defendant No.3 without the consent of their mother. It is difficult to accept that a sum of Rs.15,00,000/- is paid by cheques and the remaining Rs.35,00,000/- was paid by cash. The mother of defendant No.1(a) to D.1(c) never authorized second defendant to engage defendant No.3 to enter into any agreements with the plaintiffs. Defendant No.2 has no power to authorize defendant No.3 and such authorization is prohibited by law. Defendant No.1(a) to D.1(c) came to know about the sale agreements only after receiving summons from this court. The advocate of the mother had not even chosen to file written statement in the case on hand.
9. The General Power of Attorney in favour of defendant No.2 by their mother is denied. In turn defendant No.2 had no right to delegate powers to defendant No.3. All the sale agreements are entered by defendant No.3 without any authority from their mother. Therefore, they are not binding on them. The mother of defendant No.1(a) to D.1(c) had no knowledge of the sale agreements. The plaintiffs never 15 O.S.No.3879/1997 called upon their mother to execute the sale Deed. Their mother has not received any money from the plaintiffs. The notice dated 02.05.1997 is not within their knowledge. The cause of action pleaded to the suit is denied.
10. The clearance certificate given by Urban Land Ceiling Authority. The plaintiffs have no right to deny its authenticity. The plaintiffs were never ready and willing to perform their contract. Therefore, it is prayed to dismiss the suit with cost.
11. During the pendency of the suit defendant No.3 died, his wife is brought on record as defendant No.3(a). She has filed written statement reiterating the written statement filed by her husband.
12. Based on the said pleadings, the following issues are framed:-
1. Whether the plaintiffs prove that the agreed sale consideration is Rs.2,27,70,000/-?
2. Whether the plaintiffs prove that they have been ever ready and willing to perform their part of contract?16 O.S.No.3879/1997
3. Whether the plaintiffs prove that they are entitled for the specific performance of the agreements of sale?
4. Whether the plaintiffs prove that they are entitle for vacant possession of the suit property?
5. Alternatively, whether the plaintiffs prove that they are entitle for refund of the advance consideration of Rs.49,99,993/-
with interest at the rate of 18% p.a. or at any rate?
6. Whether the plaintiffs prove that they are entitle for Rs.1,77,70,007/- or any amount by way of damages from the defendants?
7. Whether the plaintiffs prove that the time was essence of the contract?
8. What decree or order?
13. The plaintiff No.1 is examined as P.W.1 got marked as Exs.P.1 to P.69.
14. Defendant No.1(a) is examined as D.W.1.
15. My findings to the above issues are as follows:- 17 O.S.No.3879/1997
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Issue No.5 : In the Affirmative
Issue No.6 : In the Negative
Issue No.7 : In the Negative
Issue No.8 : As per final order for the
following:-
REASONS
16. Issue Nos.1 to 7:- To avoid repetition of facts and for correct appreciation of evidence, all the issues are taken for common discussion. Before adverting to the merits of the case, it is necessary to state the following eventualities.
(1) In the year 2006 there was an amendment to plaint 'A' schedule. Accordingly, plaint is amended and amended plaint is furnished.
(2) Defendant No.1 died during the pendency of suit. Accordingly, Defendant No.1(a) to D.1(c) are brought on record. Accordingly, plaint is amended and amended plaint is furnished.
18 O.S.No.3879/1997(3) Defendant No.3 died on 05.11.2012, I.A.No.15 to 17 filed by Defendant No.3(a) on 04.07.2015. My predecessor in office allowed three applications on 11.01.2017. Accordingly, plaint is amended and amended plaint is filed. Aggrieved by the said order LR's to Defendant No.1, herein filed W.P.No.49670/49671 and 51381/2017 before the Hon'ble High Court. The Hon'ble High Court stayed operation of the order dated 11.07.2017. Therefore, defendant No.3(a) has no role to play in the case on hand.
(4) Defendant No.1(a) to (c) have filed an application under order 7 Rule 11(a) and (d) of CPC, for rejection of plaint, which is registered as I.A.No.24.
(5) Defendant No.3(a) filed I.A.No.25 for return of plaint for want of territorial jurisdiction.(she had no right to file the said application. Because proceedings against her are stayed by the Hon'ble High Court).
19 O.S.No.3879/1997
(6) Along with the suit the plaintiffs had produced original 23 sale agreements before the court. However, at the time of recording evidence the said documents were not traced. Inspite of the best efforts the documents are not traced. The same was reported to the Registrar. The Registrar City Civil Court, Bengaluru by his letter dated 29.11.2010, intimated this court to reconstruct the missing documents. Accordingly, my predecessors in office marked the zerox copies of 23 sale agreements at Ex.P.1 to P.23.
(7) On 23.02.2019 Defendant No.1(c) appeared before the court, through his new advocate. Defendant No.(c) and the plaintiffs reported compromise. It is recited in the compromise petition that defendant No.1(c) has agreed to execute sale Deed in favour of the plaintiffs, in respect of his 1/3 share for a sum of Rs.4,50,00,000/-. Compromise is accepted by the 20 O.S.No.3879/1997 court, but the suit was not partly decreed on the said date.
17. According to the plaintiffs defendants have executed 23 identical sale agreements on 18.03.1995. The sale consideration for each of the agreements is Rs.9,90,000/-. The plaintiffs have paid a sum of Rs.1,30,345/- as advance amount. The total sale consideration of 23 agreements is Rs.2,27,70,000/-. They have paid advance of Rs.49,99,993/-. The balance sale consideration payable is Rs.1,27,70,000/-. According to the plaintiffs they are always ready and willing to perform their part of contract. The defendants committed default by not producing documents in time. Even otherwise tenancy proceedings are pending in respect of plaint schedule property. Therefore, prayed for specific performance of all the 23 agreements in the alternative for refund of advance amount of Rs.49,99,993/-. They have also sought for damages of Rs.1,77,70,000/-. The defendant No.3 filed his written statement admitting the execution of 23 agreements in favour of the plaintiffs, in respect of suit schedule property. 21 O.S.No.3879/1997 According to him, the plaintiffs have paid a sum of Rs.49,99,993/-. According to defendant No.3 there was a partnership from amongst the defendants. He was managing partner of the Firm. Suit schedule property is the partnership Firm asset. Defendant No.2 has not filed any written statement. Defendant No1 during her lifetime has not filed her written statement. Defendant No.1(a) to D.1(c) have filed written statement. They have emphatically denied execution of General Power of Attorney by their mother in favour of defendant No.2 or D.3. They have emphatically denied that there was a partnership Firm between defendant No.1 to 3. They have stated that, the suit property is not the property of the Firm. According to them, their mother was absolute owner of the suit schedule property. Defendant No.2 and D.3 had no authority to deal with the suit schedule property and to execute sale agreements in favour of the plaintiffs. Under these circumstances, it is necessary for the plaintiffs to establish that defendant No.1 had authorized defendant No.2 and D.3 to execute sale agreements in their favour. In other wards the plaintiffs are expected to prove that defendant No.1 had executed General Power of Attorney in favour of 22 O.S.No.3879/1997 defendant No.2 or D.3 authorizing them deal with the suit property. It is further incumbent upon the plaintiffs to prove that, defendant No.1 to D.3 are partners of partnership Firm in the name of M/s.Sri.Sadashiva Developers. They are also expected to prove that suit property was thrown into partnership business and it was treated as a partnership Firm asset. Because the plaintiffs at para No.4 of the plaint have averred that, the defendant No.1 has enter into partnership with second defendant, for the purpose of developing 'A' schedule property in the name and style of M/s.Sri.Sadashiva Developers. It is nextly pleaded that, the defendant No.1 as appointed and constituted defendant No.2 as her General Power of Attorney to deal with suit property. At para No.5 of the plaint, the plaintiffs have further averred that, the defendant No.1 and D.2 admitted defendant No.3 as a partner of their Firm. It is further averred that, defendant No.1 appointed and constituted defendant No.3 as her Power of Attorney. It is further pleaded that, the second defendant had constituted and appointed defendant No.3 as his General Power of Attorney to deal with suit schedule property. At para No.6 of the plaint it is again pleaded that, defendant No.3 in 23 O.S.No.3879/1997 his capacity as a Power of Attorney Holder of defendant No.1 and D.2, executed agreements in favour of plaintiffs for sale of 'A' schedule property.
18. From the above pleadings, it can be understood that defendant No.1 had executed General Power of Attorney in favour of defendant No.2 and D.3. It is further understood that defendant No.1 and D.3 are partners of M/s.Sri.Sadashiva Developers. Ex.P.1 to P.23 are identical sale agreements dated 18.03.1995. The plaintiff No.1 is examined as PW.1. In his affidavit evidence, he has repeated, para No.4 to 6 of the plaint, at the time of his chief examination. On his identification the signature of defendant No.3, on Ex.P.1 to P.23 are marked. On his identification his signature and plaintiff No.2 are marked. There is an endorsement dated 10.05.1995. The signature of defendant No.3 and signature of PW.1 and plaintiff No.2 are marked. The endorsement is with record to payment of Rs.86,956/- paid by the plaintiffs. In Ex.P.1 (in Ex.P.2 to 23 is also) defendant No.1 is described like this:
24 O.S.No.3879/1997
"Smt.Jayalakshmi Siddaiah, Major, W/o.late Siddaiah, R/at:No.376, II Block, 10th Cross, Jayanagar, Bengaluru."
19. Below the said name it is recited like this:
"Represented by her partner her General Power of Attorney Holder, Sri.S.R.Chandrashekar, Major, S/o. Sri. M.S. Ramachandramurthy, R/at:No.1183/71, 9th Main, Srirampuram, Bengaluru."
20. Below his name it is further his recited like this:
"Represented,, by his General Power of Attorney Holder Mr.Sri.R.Kadambali, Major, S/o Sri.Srinivasa Kadambali, R/at:No.5, M.A.S.Complex, 7th Cross, 3rd Main, Malleswaram, Bengaluru."
21. Smt. Jayalakshmi Siddaiah referred to above is defendant No.1 in this case. Sri.S.R.Chandrashekar is defendant No.2, Sri.R.Kadambali is defendant No.3. As could be seen from Ex.P.1 to P.23. Defendant No.2 is shown to be 25 O.S.No.3879/1997 partner and General Power of Attorney Holder of defendant No.1. Accordingly, defendant No.3 is shown as the General Power of Attorney Holder of defendant No.2. But shockingly General Power of Attorney referred above is not produced before the court. Supposing that, defendant No.2 is a partner and General Power of Attorney Holder defendant No.1, can he delegate and execute General Power of Attorney in favour of defendant No.3? In spite of the repeated cross-examination on these points, the plaintiffs neither produced General Power of Attorney or partnership Deed.
22. The plaintiff No.1 who is examined as PW.1, in his cross-examination at page No.34 in the second paragraph has denied a suggestion that he has not seen the Power of Attorney at the time of execution of Ex.P.1 to P.23. He denied a further suggestion that there was no existence of General Power of Attorney at the time of Ex.P.1 to P.23. He has further deposed that he do not remember how many GPA's he had seen on date of execution of sale agreements. This goes to show that there was a General Power of Attorney at the time of execution of Ex.P.1 to P.23. But he said General Power of 26 O.S.No.3879/1997 Attorney or GPA's are not at all produced before the court. PW.1 at page No.34 in last line has deposed that he has seen records like sale Deed, loan records, partnership Deed of M/s.Sadashiva Developers and Power of Attorney. But neither the General Power of Attorney nor the partnership Deed are produced before the court. In spite of the repeated cross- examination about General Power of Attorney and partnership Deed, the plaintiffs have not produced the same before the court. PW.1 at page No.35 has admitted that, defendant No.1 is the owner of the suit schedule property. In the next line he has deposed like this:
"witness voluntaries, the defendant No.1 had thrown suit property into partnership business."
In the next line also he has deposed that the suit property was the property of partnership Firm. At page No.36 in the last line of para No.1, he has deposed that a week before execution of Ex.P.1 to P.23, he had the custody of partnership Deed. But the plaintiffs have not produced the said partnership Deed before the court.
27 O.S.No.3879/1997
23. On the other hand at page No.6 PW.1 has stated that, he is having zerox copy of General Power of Attorney and therefore he has unable produced the same. The plaintiffs repeatedly contended that, the suit property was thrown into partnership Firm, Defendant No.1 to 3 are partnership of M/s.Sadashiva Developers. Defendant No.3 is the managing partner of the said Firm. But to establish the same no documents are produced before the court. Defendant No.3 whose proceedings are stayed has produced copies of General Power of Attorney executed by defendant No.1 in his favour and the Deed of partnership. These documents are not admitted/exhibited in evidence. The alleged partnership with regard to immovable property is not registered. An un- registered partnership Deed in respect of immovable property is inadmissible evidence. The plaintiffs in the plaint as well as in the affidavit evidence have stated that defendant No.1 is owner of the property. But they have failed to produce the General Power of Attorney and partnership Deed. In the Ex.P.1 to P.23 also it is mentioned that defendant No.1 is the absolute owner of the suit schedule property. Nowhere, in Ex.P.1 to P.23 it is indicated that suit property is the asset of 28 O.S.No.3879/1997 the partnership Firm. It is suggested to PW.1 that defendant No.3 had no authority to execute sale agreements in their favour and the same is denied. It is repeatedly suggested that defendant No.1 never executed any sort of General Power of Attorney in favour of defendant No.2 and 3. It is also suggested that defendant No.3 had no authority to deal with the suit property. The said suggestions are denied. The date of General Power of Attorney or date of partnership Deed is not at all pleaded in the plaint. It is based on these documents the plaintiffs have filed suit for specific performance. But they have not produced the vital documents before the court to establish the fact that defendant No.3 was infact authorized by defendant No.1 to sell suit property by way of Ex.P.1 to P.23. At page No.44 of the cross-examination PW.1 has stated that defendant No.1 was present on the date of execution of Ex.P.1 to P.23 along with defendant No.3.If that was the case there was no necessity to issue cheques in the name of defendant No.3. The cheques could have been directly issued to defendant No.1. If that was true nothing prevented to obtain the signature of defendant No.1 on the sale agreements. This goes to show that the plaintiffs are 29 O.S.No.3879/1997 negligent in transacting with defendant No.3. The total sale consideration is more than Rs.2,00,00,000/-. The plaintiffs ought to have been vigilant while entering into suit agreements. PW.1 is not in ordinary person. He is into Real estate and construction business for past several years. He is experienced in court proceedings also, he has admitted in his cross-examination at page No.37. However, he denies suggestion that he is a court bird. PW.1 also stated that prior to execution of Ex.P.1 to P.23, he had obtained legal opinion. But he was not able to secure General Power of Attorney in favour of defendant No.3 and partnership Deed. In the absence of General Power of Attorney and the partnership Deeds it is impossible to accept the case of plaintiffs, that defendant No.1 had authorised defendant No.3 to deal with suit property. For this reason it can be said that the agreements are not lawful. Because defendant No.3 is not the owner of the suit schedule property. defendant No.1 is the owner of the suit schedule property. Defendant No.1(a) to D1.(c) are the legal heirs deceased defendant No.1. Defendant No.3 had no right over the suit property. he died during the pendency of the suit. The plaintiffs have failed to produce the 30 O.S.No.3879/1997 General Power of Attorney before the court. Therefore, it is impossible to accept that defendant No.3 was Attorney of defendant No.1. In the absence of General Power of Attorney and partnership Deed, it can be said that defendant No.3 had no right to execute Ex.P.1 to P.23 in favour of plaintiffs. Again defendant No.3 has received part of sale consideration. Defendant No.3 in his written statement admitted the same. But nowhere in the written statement of defendant No.3, it is stated that the sale price has been paid to defendant No.1. PW.1 at page No.44 of cross-examination denied a suggestion that no money is paid to defendant No.1. He further denied a suggestion that no evidence is placed on record to establish that part of the sale consideration is received by defendant No.1. In fact the plaintiffs have not produced any document to show that defendant No.3 had paid part of sale consideration in favour of defendant No.1. The plaintiffs simply believed that defendant No.3 is the managing partner of M/s.Sadashiva Developers and entered into sale agreements. They are guilty of not producing General Power of Attorney and partnership Deed.
31 O.S.No.3879/1997
24. The learned advocate for the plaintiffs cross- examined Defendant No.1(a) is who is examined as D.W.1. D.W.1 at page No.5 of the cross-examination as deposed like this: "about six months ago the matter in respect of tenancy of schedule property has been disposed of before the Karnataka Appellate Tribunal". Therefore, according to the advocate for the plaintiffs it is because of the said reason the plaintiffs were waiting and they were always ready and willing to perform their part of contract. The very basis of execution of Ex.P.1 to P.23 is found to be invalid and therefore question of considering whether time is essence of contract or plaintiffs are ready and willing to perform their part of contract does not arise for consideration. At page No.5 DW.1 has emphatically denied a suggestion that his mother has executed General Power of Attorney in favour of defendant No.3. The plaintiffs have to establish the said fact by producing necessary documents before the court. Without producing primary evidence the plaintiffs want to rely upon oral evidence. DW.1 has not admitted about execution of General Power of Attorney in favour of defendant No.3. DW.1 denied a suggestion that defendant No.3 as a General Power 32 O.S.No.3879/1997 of Attorney Holder of defendant No.1 had executed Ex.P.1 to P.23. He denied suggestion that defendant No.3 received a sum of Rs.49,99,993/- and his mother was a beneficiary. He also denied a suggestion that suit property was the asset of partnership Firm.
25. At page No.8 of the cross-examination DW.1 has stated that he do not know whether defendant No.3 had admitted about execution of General Power of Attorney in his favour by defendant No.1 in the written statement. It is true that the defendant No.3 in his written statement as pleaded that defendant No.1 had executed General Power of Attorney in his favour. It is further true that defendant No.1 who died in the year 2002, has not filed written statement in the case on hand. But defendant No.1(a) to D.1(c) have filed written statement. They have asserted that suit property is not a partnership asset. There was no partnership Firm. Their mother had not executed General Power of Attorney. Under these circumstances, written statement defendant No.3 or defendant No.3(a) who appears to be openly in collusion with plaintiffs cannot be accepted or admissible in the eye of law. 33 O.S.No.3879/1997
26. At page No.9 of the cross-examination it is suggested to DW.1 like this:
"it is false to suggested Ex.P.1 to P.23 are executed by my mother through her General Power of Attorney Holder defendant No.2 in favour of plaintiffs." But on verification of Ex.P.1 to P.23 defendant No.2 has not signed to any of these documents. It is further suggested to DW.1 that defendant No.2 was a General Power of Attorney Holder of his mother and the same is denied. He further denied a suggestion that his mother has received amount under Ex.P.1 to P.23. Without producing primary suit documents which the plaintiffs are relying upon in their plaint and affidavit evidence, they have cross-examination DW.1. In this regard the learned counsel for defendant No.1(a) and D.1(b) has relied upon (2012) 8SCC706 between Church of Christ Charitable Trust and Educational Charitable Society V/s. Ponniamman Educational Trust. In the said case before the Hon'ble Supreme Court also it was contended that a sale agreement was executed in favour of the plaintiffs by the General Power of Attorney Holder defendant. But the General Power of Attorney was not produced before the court. 34 O.S.No.3879/1997 Considering these facts the Hon'ble Supreme Court at para No.16, 17, 18 and 19 held that the plaintiffs cannot be permitted to prosecute the suit. Accordingly, it is held that the plaint is liable for rejection. The proposition of law rendered in the said case is very much applicable to the case on hand. The suit is pending before the court for the past 22 years. In spite of sufficient opportunity the plaintiffs have not produced General Power of Attorney and partnership Deed. The advocate for defendant No.1(a) and D.1(b) have filed I.A.No.24 under Order 7 Rule 11(a) and (d) for rejection of plaint for not producing the documents. Even then the plaintiffs have not produced the said documents before the court. Therefore, the court has to conclude that the agreements in favour of plaintiffs are not valid and enforceable in law. In (2011)12SCC page No.220 between Rangammal and Kuppuswami and another. The Hon'ble Supreme Court at page 34 held that weakness of the defendants cannot be used as trump card by the plaintiffs. The plaintiffs want to take benefit of written statement filed by defendant No.3, who is no more. It is also contended that defendant No.1 during her life time not filed written statement 35 O.S.No.3879/1997 Defendant No.1(a) to D.1(c) have no to right to file written statement. After the death of defendant No.1 it is plaintiffs who filed application to implead the LR's of deceased defendant No.1. After their appearance, the application was allowed. The plaintiffs carried out the amendment and furnished the amended plaint. It is thereafter defendant No.1(a) to D.1(c) have filed the written statement. The same was not opposed by the plaintiffs. Based on the pleadings issues are framed PW.1 is examined. The advocate for defendant No.1(a) to D.1(c) cross-examined PW.1. The same was not opposed by the plaintiffs. On the other hand the learned advocate for the plaintiffs fully cross-examination DW.1. There is a Karnataka Amendment, as per Order 22 Rule 4 which reads like this:
"Rule 4(4). The Court, whenever it thinks fit, may exempt the plaintiff from the necessity to substitute the legal representatives of any such defendant who has been declared ex-parte or who has failed to file his written statement or who having filed it has failed to appear and contest at the hearing; and the judgement may in such case be pronounced against the said defendant 36 O.S.No.3879/1997 notwithstanding the death of such defendant and shall have the same force and effect as if it had been pronounced before his death took place."
27. The plaintiffs ought to have taken benefit of the said vision. They have not opposed participation of defendant No.1(a) to D.1(c) in the case on hand. Therefore, the said proposition laid down by the Hon'ble Supreme Court is applicable to the case of defendant No.1(a) to D.1(c).
28. The learned advocate defendant No.1(a) and D.(b) has further relied upon (2006) 7SCC416 between Hamza Haji V/s. State of Kerala and another. Wherein the Hon'ble Supreme Court at para No.20 held that suppression of a material document would amount to fraud on the court. In this case also the alleged General Power of Attorney executed by defendant No.1 in favour defendant No.2 and D.3 and partnership between defendant No.1 to 3, are the material documents. The entire suit is based on the said documents. But they are not produced before the court. Therefore, it is a 37 O.S.No.3879/1997 fraud played on the court by the plaintiffs. He has further relied upon AIR 1999 Bombay 401 between Midland Overseas V/s. "CMBT Tana" and others. This judgment was rendered by the Hon'ble Bombay High Court that deal with Sec.230 of contract Act. At para No.6 of the judgment, it is held that: "the agent cannot personally enforce nor be bound by, contracts on behalf of Principal ordinarily an agent contracting in the name of his principal can not be sued on such contracts. It is further held that the agent in such circumstance is also not entitled to sue in his name. This proposition would go against the plaintiffs.
29. Rightly or wrongly defendant No.3 had issued a legal notice to the plaintiffs as per Ex.P.69. In this notice defendant No.3 informed plaintiffs that the agreements are cancelled and advance amount paid has been forfeited. Admittedly, the plaintiffs have not replied to the said notice. Under these circumstances what should be the prayer from the plaintiffs has been enunciated by the Hon'ble Supreme Court in (2013) 15SCC27 between I.S.Sikandar V/s. K.Subramani and others. In the said case also the defendant 38 O.S.No.3879/1997 there in had issued a notice cancelling the sale agreement and forfeited the advance sale consideration. The plaintiffs therein filed a suit for specific performance. The Hon'ble Supreme Court at para No.37 as observe like this:
"37. As could be seen from the prayer sought for in the original suit, the plaintiff has not sought for declaratory relief to declare the termination of agreement of sale as bad in law. In the absence of such prayer by the plaintiff the original suit filed by him before the trial court for grant of decree for specific performance in respect of the suit schedule property on the basis of agreement of sale and consequential relief of decree for permanent injunction is not maintainable in law."
30. The said proposition is squarely applicable to the case on hand. In the case on hand also the relief of declaration to declare the termination of sale as bad in law, is not there. Therefore, the suit for specific performance is not maintainable.
39 O.S.No.3879/1997
31. The plaintiffs have failed to prove the execution of Ex.P.1 to P.23. They are not entitled for specific performance. No material is placed on record to show that advance amount is paid to defendant No.1. Therefore, defendant No.3(a) is liable to refund a sum of Rs.49,99,993/- to the plaintiffs along with rate of interest 12% p.a. from the date of the suit till recovery of the entire amount. The plaintiffs have not proved how they are entitled for damages. Nothing is pleaded in plaint about damages. Nothing is deposed by PW.1 in his affidavit evidence about damages. Nothing is suggested to DW.1 about damages. Therefore plaintiffs are not entitled for damages. In the present case the plaintiffs have failed to prove legal execution of Ex.P.1 to P.23. Therefore question of considering readiness and willingness of the plaintiffs does not arise for consideration. Similarly, time is essence of the contract or not the essence of contract will also does not survive for consideration. In the result they are not entitled for possession of suit property from LR's of defendant No.1. 40 O.S.No.3879/1997
32. The compromise is reported on 23.02.2019 by plaintiffs and defendant No.3(a). The suit was adjourned to 06.03.2019. On the said day compromise petition was accepted by the court. However, the suit was not partly decreed as requested by the new counsel for defendant No.1(c) and the plaintiffs. Because, I had to render judgment in a near future. Now, it is proved that Ex.P.1 to P.23 are not legally enforceable. Admittedly, defendant No.1(a) to D.1(c) are not parties to Ex.P.1 to P.23. Therefore, defendant No.1(c) alone cannot enter into compromise with the plaintiffs. It is true that defendant No.1(a) to D.1(c) are entitled to 1/3 share in the suit property. In view of my finding about Ex.P.1 to P.23, it will not be correct to accept the compromise reported by defendant No.1(c) and the plaintiffs. Because, Ex.P.1 to P.23 are illegal. Therefore, defendant No.1(c) cannot legalize the contract by way of compromise. Defendant No.1(c) can independently execute a registered sale Deed in favour of the plaintiffs, in respect of his 1/3 share. Therefore, suit against defendant No.1(c) cannot be partly decreed as prayed by the advocate for the plaintiffs and the newly advocate for 41 O.S.No.3879/1997 defendant No.1(c). According to court the whole suit has to be dismissed.
33. Ex.P.1 to P.23 are drafted on Stamp paper worth Rs.10/-. But as per Article 5(i),(ii),(a),(iv) for the year 1995, the proper duty payable is Rs.200/-. Rs.190/- short on duty payable by the plaintiffs. Rs.190X10=Rs.1,900/- is the penalty payable by the plaintiffs. In all towards duty Rs.190+Penalty Rs.1,900=Rs.2,090/- is payable by the plaintiffs on each of Ex.P.1 to P.23. In all towards duty on penalty the plaintiffs are liable to pay a sum of Rs.48,070/-. The plaintiffs are directed to pay the same within two weeks from date of judgment. Accordingly, Issue No.1 to 4, 6 and 7 are answered in the negative and Issue No.5 in the affirmative.
34. Issue No.8:- In view of my answering to issue Nos. 1 to 7, I proceed to pass the following:-
42 O.S.No.3879/1997
ORDER Suit of the plaintiffs is dismissed with cost.
Defendant No.3(a) is directed to refund a sum of Rs.49,99,993/-, along with interest at the rate of 12% p.a. from the date of suit till recovery of the entire amount. The compromise petition filed by defendant No.1(c) and the plaintiffs on 23.02.2019 is not accepted. The plaintiffs are directed to deposit a sum of Rs.48,070/- towards duty and penalty before the court within two weeks from the date of the judgment.
Accordingly, I.A.No.24 filed by defendant No.1(a) and D.1(b) under Order 7 Rule 11(a) and (d) of CPC is disposed off. I.A.No.25 filed by defendant No.3(a) is rejected.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed and typed by her and then corrected and pronounced by me in the open court on this the 01st day of April 2019).
(MANJUNATH.G.A.) XXXV Addl.City Civil & Sessions Judge, Bengaluru.43 O.S.No.3879/1997
ANNEXURE Witnesses examined on behalf of the plaintiff.
P.W.1 : H.J.Siwani Documents marked on behalf of the plaintiff.
Ex.P.1 to P.23 : Agreements of Sale,
Dated 18-03-1995
Ex.P.24 to P.43 : Deposit Confirmation receipts
issued by Standard Chartered Bank
Ex.P.44 : Fixed Deposit receipts issued by
Krishna Bank
Ex.P.45 to P.64 : Fixed Deposit receipts issued by
IDBI Bank
Ex.P.65 : Statement of Account issued by Bank
of India
Ex.P.66 : Statement of Account of PW.1issue by
Union Bank of India
Ex.P.67 to P.68 : Statements of Account issued by Bank
of India
Ex.P.69 : Zerox Copy of the letter
dated 02.05.1997.
Witnesses examined on behalf of the defendants P.W.1 : Dr.Vevekananda Siddaiah Documents marked on behalf of the defendants.
-Nil-
(MANJUNATH.G.A.) XXXV Addl.City Civil & Sessions Judge, Bengaluru.