Bangalore District Court
Sri. M.Akkappa vs Sri. Siddaramaiah on 23 September, 2017
IN THE COURT OF XVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (C.C.H.16)
Dated this 23rd Day of September, 2017
Present: Sri. R. Ravi,
B.Sc., LL.B.
XVII Addl. City Civil & Sessions Judge.
O.S.No. 6119/2008
Plaintiff/s : Sri. M.Akkappa
S/o Late Dodda Madappa
Aged about 60 years,
R/at Kalkere Village,
K.R.Puram Hobli,
Bengaluru East Taluk.
[By Sri. C.V.K., Adv.]
-Vs-
Defendant/s : 1. Sri. Siddaramaiah
S/o Late Narayanappa
Aged about 37 years
R/at Kanaka Nagar,
K.Channasandra Village,
K.R.Puram Hobli,
Bengaluru East Taluk
2. Master Manjunath @ Manju
S/o Siddaramaiah
Aged about 20 years,
3. Master Ashok Kumar
S/o Siddaramaiah
Aged about 19 years,
Both are R/at K.Chanasandra
Village, K.R.Puram Hobli,
Bengaluru East Taluk.
4. Smt. Bhagyamma
W/o Siddaramaiah
Aged about 36 years,
2 OS.No.6119/2008
R/at Kanaka Nagar,
K.Channasandra Village,
Horamavu Post,
Bengaluru - 43
[D1 by Sri. H.V.T., Adv.]
[D2 & 3 by Sri. M.S., Adv.]
[D4 by Sri. K.G.N., Adv.]
Date of institution of the suit 11.09.2008
Nature of the suit Specific Performance
Date of commencement of 10.12.2014
recording the evidence
Date on which the judgment 23.09.2017
was pronounced
Total duration Years Months Days
09 00 12
(R. Ravi),
XVII Addl. City Civil & Sessions Judge.
JUDGMENT
This is a suit for Specific performance and permanent injunction.
2. The case of the plaintiff is that, the defendant is the absolute owner of the suit schedule property and he has offered to sell the same in favour of the plaintiff for a sum of Rs.8,00,000/- and accordingly the defendant had entered into an agreement of sale with the plaintiff on 14.5.2006 and on the date of agreement of sale, the plaintiff has paid an earnest advance amount of Rs.5,00,000/- to the defendant 3 OS.No.6119/2008 by way of cash before the witnesses and accordingly the defendant has acknowledged the same on the agreement of sale itself. It was further agreed that the balance sale consideration amount of Rs.3,00,000/- has to be paid by the plaintiff within 2 and half years from the date of agreement of sale. The plaintiff was always ready and willing to perform his part of the contract as per the terms and conditions of the agreement of sale dated 14.5.2006 and the plaintiff has approached the defendant on several occasions and requested him to execute the sale deed before the concerned Sub-Registrar. On the other hand the defendant has failed to perform his part of the contract. In this regard the plaintiff also got issued a legal notice dated 26.5.2008 to the defendant through RPAD. Though the defendant has received the above notice he has not at all chosen to reply for the same and in the meanwhile the plaintiff has learnt that the defendant is trying to sell away the suit schedule property in favour of third parties then he has constrained to file this suit for specific performance and also for the relief of permanent injunction.
3. On the other hand, the defendant has filed the written statement and denied the suit of the plaintiff as false 4 OS.No.6119/2008 and incorrect and he further contended that he has not at all offered to sell the suit schedule property for a sale consideration of Rs.8,00,000/- to the plaintiff and he has not at all entered into any agreement of sale on 14.5.2006 with the plaintiff and he has not at all received any earnest advance amount of Rs.5,00,000/-. When that is so, the plaintiff has filed the above suit by concocting certain documents by taking undue advantage of illiteracy and ignorance of this defendant. And in fact the plaintiff is a money lender in the locality and due to some personal requirements he approached the plaintiff in the year 2006 and requested him to give an hand loan of Rs.10,000/- and at that time the plaintiff has obtained his signature on the blank stamp paper of Rs.100/- and took his original Palupatti for security purpose and thereafter the plaintiff has paid the loan amount of Rs.10,000/- and the plaintiff was receiving interest of Rs.300/- p.m. Though the defendant was paying the monthly interest regularly to the plaintiff still he has insisted the defendant to sell the suit schedule property in his favour and also threatened him that he may lose the said land since his wife and children have filed a suit in OS.No.8880/2001 and in the said suit the present advocate of the plaintiff appeared for the defendants in the said suit. 5 OS.No.6119/2008 The plaintiff and his counsel were well aware that the suit schedule property was the subject matter of partition suit of suit OS.No.8880/2001. When that is so, the plaintiff herein with dishonest intention to knock away the valuable suit schedule property has filed this frivolous suit and in fact the plaintiff is well aware of the previous suit of OS.No.8880/2001 and also the compromise entered into between the defendant and his wife and children and also the deed of partition in the year 2003 and also the execution of Gift deed in favour of his wife on 12.9.2007 with respect to the suit schedule property and thus by taking undue advantage of the illiteracy and ignorance of this defendant and his wife, the plaintiff has created bogus documents and filed this false suit for illegal gain and accordingly prayed for dismissal of the above suit with costs.
4. After filing of the suit, the defendant No.2 to 4 have got impleaded and also filed their separate written statement denying the averments of the plaint as false and incorrect and they further contended that the defendant No.1 herein is separated from his brothers under a registered partition deed dated 4.3.2005 and in the said partition the defendant No.1 got 3 items including the suit schedule 6 OS.No.6119/2008 property and thereafter the defendant No.1 has gifted the suit schedule property to these defendants through a registered gift deed dated 12.9.2007 and in the meanwhile the defendant No.1 has ill-treated the mother of defendant No.2 and 3 i.e., defendant No.4 and forced her to go out of the matrimonial home and thereafter the minor defendants have filed a suit for partition against the defendant No.1 herein in OS.No.8880/2001 and in the meanwhile the elder sister of defendant No.1 by name Rathnamma has also filed a suit bearing OS.No.6354/2009 against the defendant No.1 and his wife Smt.Bhagyamma in respect of the same suit schedule property and in fact one Gurumurthy and another have also filed a false suit in OS.No.372/2010 on the file of CCH-8 against the defendant No.1 herein in respect of the suit schedule property and in the said suit also these defendants came on record by filing impleading application and filed their written statement and since the plaintiff herein by colluding with the said Gurumurthy has filed the false suit on the created and concocted documents then they prayed for dismissal of the present suit with costs.
5. On the basis of the above pleadings, one of my learned predecessor has framed the following issues : - 7 OS.No.6119/2008
1) Whether plaintiff proves that, on 14.5.2006 first defendant agreed to sell suit schedule property for Rs.8,00,000/-
?
2) Whether plaintiff further proves that, on 14.5.2006 first defendant received advance sale consideration of Rs.5,00,000/- and executed sale agreement?
3) Whether plaintiff further proves that time was essence of contract?
4) Whether plaintiff was ever ready and willing to perform his part of contract?
5) Whether first defendant proves that, plaintiff is money lender and that, he obtained his signature on blank format of on demand promissory note as a security for loan?
6) Whether defendant 2 and 3 proves that, first defendant executed registered gift deed in respect of suit schedule property on 12.9.2007?
7) Whether plaintiff is entitled for
discretionary relief of specific
performance of contract and injunction as prayed?
8) What order or decree?
6. In order to prove the above issues, the plaintiff got himself examined as PW.1 and got marked the documents at Ex.P1 to P13. On the other hand, the defendant No.1 and 4 got themselves examined as DW.1 and 2 respectively and got 8 OS.No.6119/2008 marked the documents at Ex.D1 to D37 and thereafter the matter was posted for arguments.
7. And I have heard the arguments of both sides and perused the entire materials placed on record.
8. And my findings on the above issues are as under:-
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 affirmative Issue No.7: In the Negative Issue No.8: As per final order, for the following:
REASONS
9. Issue No.1 to 7 :- Since these issues are inter- related then they are hereby discussed commonly in order to avoid repetition of facts.
10. In order to prove the above facts in issues, though the plaintiff got himself examined as PW.1 and got marked the documents at Ex.P1 to P13, the same do not hold any water as there is lot of variance in the pleadings and proof of the plaintiff that are placed on record. Now let me examine it. 9 OS.No.6119/2008
11. First of all though the plaintiff has specifically pleaded that the defendant is the absolute owner of the suit schedule property and he has offered to sell the same in favour of the plaintiff for a sum of Rs.8,00,000/- and accordingly the defendant had entered into an agreement of sale with the plaintiff on 14.5.2006 and on the date of agreement of sale, the plaintiff has paid an earnest advance amount of Rs.5,00,000/- to the defendant by way of cash before the witnesses and accordingly the defendant has acknowledged the same on the agreement of sale itself and it was further agreed that the balance sale consideration amount of Rs.3,00,000/- has to be paid by the plaintiff within 2 and half years from the date of agreement of sale, the same once again do not hold any water as the above facts are not at all proved by the plaintiff with cogent material evidence.
12. And in fact except leading his self-interested oral version as PW.1, the plaintiff has neither examined the attesting witnesses of the alleged agreement of sale dated 14.5.2006 nor even examined its scribe to prove the due execution of the same.
10 OS.No.6119/2008
13. And in fact contrary to the contents of the agreement of sale of Ex.P1, the plaintiff/PW.1 at page-11 of his cross-examination has clearly admitted that he has not at all put his signature to the above agreement of sale and in fact his son Dhananjaya and another witness by name Manjunatha have put their signatures to the Ex.P1 and the said Manjunatha belongs to his caste, which is rather fatal to the case of the plaintiff as the above witnesses are also not at all examined to prove the due execution of the agreement of sale of Ex.P1.
14. And further with regard to the scribe of the Ex.P1 is concerned, though the same allegedly shows that the same is drafted by one Advocate N.K.Ravindra, the same once again do not hold any water as contrary to the above facts and contents of Ex.P1, the plaintiff/PW.1 himself at page-17 of his cross-examination has clearly admitted that he usually writes the agreements from stamp vendor Ravindra and even the agreement of Ex.P1 is also got written by the said Ravindra.
15. And since the plaintiff has not at all offered any cogent explanation that the scribe of Ex.P1 is an advocate or 11 OS.No.6119/2008 a stamp vendor then a shadow of doubt is created with regard to due execution of the agreement of sale of Ex.P1,
16. Secondly, though the plaintiff has specifically pleaded that on the alleged day of agreement of sale of Ex.P1 he has paid an earnest amount of Rs.5,00,000/- to the plaintiff is concerned, the same once again do not hold any water as the above facts are also not at all proved by the plaintiff with cogent material evidence.
17. And in fact contrary to the contents of Ex.P1 at page-14 of his cross-examination, the plaintiff/PW.1 has clearly admitted that he is not at all paying the income tax and he has drawn the amount from State Bank of Mysore and he do not know the date of the same and he cannot say how many days prior to the agreement of sale he has drawn the above amount.
18. Even though the plaintiff has allegedly produced a bank statement at Ex.P12 to show that he has drawn the earnest money of Rs.5,00,000/- and gave it to the defendant, the same once again do not hold any water as contrary to the contents of Ex.P12, the plaintiff/PW.1 himself at page-14 of his cross-examination has clearly admitted that the bank 12 OS.No.6119/2008 statement of Ex.P12 do not contain so much amount as on the date of the agreement of sale .
19. And moreover on careful perusal of the bank statement of Ex.P12 one can easily make out that on 12.5.2006 i.e., two days prior to the date of agreement of sale dated 14.5.2006 only an amount of Rs.2,11,000/- was standing in the account of the plaintiff.
20. Even though the said bank statement of Ex.P12 shows that on 10.4.2006 the plaintiff has withdrawn an amount of Rs.5,00,000/-, the same is also of no help to the case of the plaintiff as it further shows that the above amount is rather paid to cheque bearing No.941341, which is rather fatal to the case of the plaintiff as it is the case of the plaintiff that he has paid the earnest money of Rs.5,00,000/- to the defendant by way of cash amount. And in fact contrary to the above facts the plaintiff/PW.1 at page-19 and 20 of his cross-examination has clearly admitted that he has not at all shown the payment of the alleged Rs.5,00,000/- one paid to the defendant in his income tax returns.
21. Thirdly with regard to the alleged drafting/typing of the alleged agreement of Ex.P1 is concerned, one can easily make out that the first page of the alleged Ex.P1 is rather 13 OS.No.6119/2008 typed on the signature of defendant No.1 and whereas the second page of the alleged agreement of Ex.P1 shows a gap of one and half inches in between its contents and the alleged signature of defendant No.1. And the above fact is rather admitted by the plaintiff himself at page-17 of his cross- examination.
22. Fourthly with regard to the alleged ownership of the defendant No.1 over the suit schedule property is concerned, the plaintiff/PW.1 himself at page-18 and 19 of his cross-examination has interestingly admitted that as on the date of Ex.P1 the suit schedule property was standing in the name of defendant No.1 and his brothers and even after the partition the suit schedule property was not at all mutated in the exclusive name of the defendant No.1.
23. Fifthly though the plaintiff has specifically pleaded that the time was the essence of contract and as such he was ready and willing to perform his part of the contract, the same once again do not hold any water as the above fact is not at all proved by the plaintiff with cogent material evidence.
24. Even though the plaintiff has allegedly produced a notice copy of Ex.P5 one alleged issued to the defendant that 14 OS.No.6119/2008 he is ready with the remaining balance consideration amount of Rs.3,00,000/-, the same is also of no help to the case of the plaintiff as contrary to the above facts the plaintiff/PW.1 at page-19 of his cross-examination has clearly admitted that he has orally told the defendants that he is ready with the balance consideration amount and he has not at all requested through any written document.
25. On this point in a ruling of 2016 (5) K.L.J. 91 (DB) one relied on by the defendant No.1 our Hon'ble High Court of Karnataka has clearly held that "Specific Relief Act, 1963, Section 16(c) - Code of Civil Procedure, 1908, Order XLI, Rule 27 - Indian Evidence Act, 1872, Section 3, 59, 60 and 61 - Suit for specific performance of agreement of sale - Readiness and willingness to perform part of contract - Proof of possession of requisite funds - Jurisdiction of Civil Court to grant decree - Held, in terms of explanation to section 16, when a contract involves payment of money, it is not essential for plaintiff to actually tender to defendant - Or to deposit in Court any money, except when so desired by Court
- But, nonetheless, plaintiff has to place before the court his financial ability either to raise requisite funds - Or possession of requisite funds, in proof of his readiness and 15 OS.No.6119/2008 willingness to perform stipulations regarding payment of balance sale consideration - Mere statement on oath in witness -box that plaintiff is possessed of required funds - Would not prove possession - Proof has to be necessarily by way of documentary evidence - And on facts plaintiff not produced a scrap of paper to show how he proposes to raise balance consideration of Rs.65 lakhs - In view thereof - Finding of Trial court that plaintiff was ready and willing to perform his part of contract, vitiated, set aside".
26. On the other hand the defendant No.1 by clearly pleading and leading his oral evidence at DW.1 and further producing the documentary evidence at Ex.D1 to D8 has clearly rebutted the case of the plaintiff and further proved that he has not at all offered to sell the suit schedule property for a sale consideration of Rs.8,00,000/- to the plaintiff and he has not at all entered into any agreement of sale on 14.5.2006 with the plaintiff and he has not at all received any earnest advance amount of Rs.5,00,000/-.
27. And he further proved that the plaintiff is a money lender in the locality and due to some personal requirements he approached the plaintiff in the year 2006 and requested him to give an hand loan of Rs.10,000/- and at that time the 16 OS.No.6119/2008 plaintiff has obtained his signature on the blank stamp paper of Rs.100/- and took his original Palupatti for security purpose and thereafter the plaintiff has paid the loan amount of Rs.10,000/- and the plaintiff was receiving interest of Rs.300/- p.m. and though the defendant was paying the monthly interest regularly to the plaintiff still he has insisted the defendant to sell the suit schedule property in his favour and also threatened him that he may lose the said land since his wife and children have filed a suit in OS.No.8880/2001 and in the said suit the present advocate of the plaintiff appeared for the defendants in the said suit.
28. Even though there are some minor discrepancies in the cross-examination of defendant No.1/DW.1 and even though the defendant No.1 has admitted his signature on the alleged agreement of Ex.P1 the same is not at all fatal to his case as he has specifically denied the due execution and contents of the Ex.P1. On this point in a ruling of AIR 2010 Supreme Court 2809 it has been clearly held that "The admission about only the signature part of the document is not admission of the document. More so when the specific case of the defendants in written statement was of clever forgery. Admission must obviously be a conscious and 17 OS.No.6119/2008 deliberate act. Admission can be explained. An admission of a signature is not an admission of execution of a document".
29. And in fact with regard to the Money Lending Act of the plaintiff is concerned, though the though the defendant No.1 at page-6 of his cross-examination has admitted that he has no documents to show that the plaintiff was a money lender, the same is not at all fatal to his case as at page-16 and 17 of his cross-examination the plaintiff/PW.1 himself has clearly admitted that he has filed around 3-4 cases against the properties of Kalkere village and the suit one filed by the brother of the defendant No.1 namely Nagaraj based on an agreement is rather compromised. And earlier at page- 10 also the plaintiff/PW.1 has clearly admitted that he had filed a suit against the brother of the defendant No.1 namely Nagaraj before this court in OS.No.6120/2008 and he compromised the same for a sum of Rs.4,00,000/-.
30. And whereas the defendant No.2 to 4 also by clearly pleading and leading the oral evidence of defendant No.4 at DW.2 and further producing the documentary evidence from Ex.D9 to D37 have also clearly rebutted the case of the plaintiff and further proved that the defendant No.1 herein is separated from his brothers under a registered 18 OS.No.6119/2008 partition deed dated 4.3.2005 and in the said partition the defendant No.1 got 3 items including the suit schedule property and thereafter the defendant No.1 has gifted the suit schedule property to these defendants through a registered gift deed dated 12.9.2007 and in the meanwhile the defendant No.1 has ill-treated the mother of defendant No.2 and 3 i.e., defendant No.4 and forced her to go out of the matrimonial home and thereafter the minor defendants have filed a suit for partition against the defendant No.1 herein in OS.No.8880/2001 and in the meanwhile the elder sister of defendant No.1 by name Rathnamma has also filed a suit bearing OS.No.6354/2009 against the defendant No.1 and his wife Smt.Bhagyamma in respect of the same suit schedule property and in fact one Gurumurthy and another have also filed a false suit in OS.No.372/2010 on the file of CCH-8 against the defendant No.1 herein in respect of the suit schedule property and in the said suit also these defendants came on record by filing impleading application and filed their written statement and the plaintiff herein by colluding with the said Gurumurthy has filed the false suit on the created and concocted documents.
19 OS.No.6119/2008
31. Even though the DW.2 at page-9 of her cross- examination has admitted that she do not know anything about the suit agreement dated 14.5.2006, the same is not at all fatal to the case of the defendant No.2 to 4 as at the same page the above said DW.2 has clearly deposed that after coming to know the alleged suit agreement they got impleaded in the present case on the ground that the they have got the suit property through a registered gift deed dated 12.9.2007. And at page-8 of her cross-examination she/DW.2 has further deposed that during the pendency of the suit one filed by her and her children, her husband/defendant No.1 came and requested to withdraw the above suit that he will give a gift deed in respect of the suit schedule property and accordingly they have withdrew the above suit and thereafter the defendant No.1 has gifted the suit property through the registered gift deed of Ex.D10.
32. And in fact the plaintiff/PW.1 at page-18 of his cross-examination has clearly admitted that before the alleged agreement of Ex.P1 the defendant No.2 to 4 have filed a partition suit and he knows the execution of the gift deed by defendant No.1 in favour of defendant No.2 to 4 and the suit schedule property may be the ancestral properties of 20 OS.No.6119/2008 defendants, which is rather fatal to the case of the plaintiff as in a ruling of (2015) 5 S.C.C. 355 one relied on by the defendant No.2 to 4 the Hon'ble Supreme Court of India has clearly held that "Hindu Succession Act, 1956 - Section 8 - Specific Relief Act, 1963 - Section 17, 20(2), 22 - Specific performance of contract - Void contract to sell property - Agreement of sale entered between plaintiffs and some of co- sharers who do not have absolute title to suit schedule property is not enforceable in law - Agreement is not executed by all co-sharers of property - Plaintiffs are not entitled for specific performance decree - First Appellate Court and High Court have not exercised their power under section 20(2) of Specific Relief Act which by itself is substantial question of law - Judgment and decree of trial court restored."
33. And even in a ruling of (1996) 5 S.C.C. 589 one relied on by the defendant No.2 to 4 the Hon'ble Supreme Court of India has clearly held that :
"Specific Relief Act, 1963 - Section 20 - Specific performance of contract - Conduct of Party - Effect on relief - Relief in the nature of specific performance is discretionary and a party who 21 OS.No.6119/2008 pleads a false case is not entitled to such equitable relief.
Under Section 20 of the Specific Relief Act, 1963 [for short, 'the Act'] the decree for specific performance is in the discretion of the court but the discretion should not be refused arbitrarily. The discretion should be exercised on sound principles of law capable of correction by an appellate court.
The party who seeks to avail the equitable jurisdiction of Court and specific performance being equitable relief, must come to the court with clean hands. In other words the party who makes false allegations does not come with clean hands and is not entitled to the equitable relief. Specific Relief Act, 1963 - Section 20 - Specific performance of contract - Third party interest - Transfer of property to third party who found to be a bona fide purchaser for value without notice - Discretionary relief of specific performance rightly refused."
34. And lastly though the plaintiff has also relied upon the rulings of AIR 1979 S.C. 1241, 2009 (2) S.C.C. 582, AIR 2001 S.C. 1392, AIR 2005 S.C. 1420, 2005 (4) K.L.J. 181, AIR 1996 S.C. 761, 2001 (2) K.L.J. 288 (DB), ILR 2015 KAR 3688, ILR 2011 KAR 5202, AIR 2008 S.C. 2718 and AIR 2013 S.C. 2389, the same are of no help to the case of the plaintiff as on careful perusal of the above dictums I found that the facts and circumstances of the above dictums and 22 OS.No.6119/2008 that of the case on hand are quite together different and are not at all applicable to the case on hand.
35. And in fact on careful perusal of the above dictums I found that as per the dictum of AIR 1979 S.C. 1241, the plaintiff has not at all placed any cogent material evidence to show that he would put to great hardship if the relief of specific performance is not granted as envisaged in Section 20 of the Specific Relief Act.
36. And further as per the dictum of 2009 (2) S.C.C. 582 also, the plaintiff has not at all proved that he was and is ready and willing to perform his part of the contract as envisaged in section 16 of Specific Relief Act.
37. And further as per the dictum of AIR 2001 S.C. 1392, the plaintiff has not at all produced any cogent materials to show that the transaction in between the defendant No.1 to 4 in respect of the suit schedule property are collusive transaction subsequent to the sale agreement.
38. And further as per the dictum of AIR 2005 S.C. 1420, the plaintiff has not at all placed any cogent material evidence to show that the defendant No.2 to 4 were aware of 23 OS.No.6119/2008 the agreement of sale in between the plaintiff and the defendant No.1.
39. And further as per the dictum of 2005 (4) K.L.J. 181, the plaintiff has not placed any cogent materials to show that his vendor had parted with the suit schedule property and the transaction of the defendants was performed with a view to defeat the rights of the plaintiff.
40. And further as per the dictum of AIR 1996 S.C. 761 the plaintiff has not at all proved that there is no fraud or misrepresentation in getting the alleged agreement of Ex.P1 executed by the defendant No.1.
41. And further as per the dictums of 2001 (2) K.L.J. 288 (DB) and ILR 2015 KAR 3688, the plaintiff has failed to prove that the time is the essence of the contract and further failed to prove the ready and willingness enumerated under section 16 of the Specific Relief Act.
42. And further as per the dictums of ILR 2011 KAR 5202, AIR 2008 S.C. 2718 and AIR 2013 S.C. 2389, the plaintiff has not at all proved that the partition suit of the defendant No.2 to 4 against the defendant No.1 in respect of 24 OS.No.6119/2008 the suit schedule property is hit by the principles of lis- pendency as embodied in section 52 of the T.P. Act.
43. So, in view of the discussion made above I am of the opinion that since the plaintiff has failed to prove that on 14.5.2006 the defendant No.1 has agreed to sell the suit schedule property for a sum of Rs.8,00,000/- to him and further failed to prove that on the above date the defendant No.1 has received an advance sale consideration of Rs.5,00,000/- and further failed to prove the due execution of the sale agreement of Ex.P1 by the defendant No.1 and since the plaintiff further failed to prove that he is ready and willing to perform his part of the contract and time was the essence of the contract and since the defendant No.1 has clearly proved that the plaintiff is a money lender and has obtained his signature on the blank stamp paper and obtained his documents as security for the above loan and since the defendant No.2 and 3 have also proved that the defendant No.1 has executed a registered gift deed in respect of the suit schedule property on 12.9.2007 then the plaintiff is not at all entitled for the discretionary relief of specific performance of contract and injunction as prayed and accordingly I have answered issue No.1 to 4 in the negative, 25 OS.No.6119/2008 issue No.5 and 6 in the affirmative and issue No.7 in the negative.
44. Issue No.8:- In view of the discussion made on issue No.1 to 7 and further holding issue No.1 to 4 in the negative, issue No.5 and 6 in the affirmative and issue No.7 in the negative, I proceed to pass the following order:-
ORDER The suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the judgment writer, transcribed by him, corrected and then pronounced by me in the open court, on this the 23rd day of September, 2017).
(R. Ravi), XVII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for plaintiff:
P.W.1 M.Akkappa List of documents exhibited for plaintiff:
Ex.P1 Agreement of sale dated 1.5.2006
Ex.P2 Registered partition deed dtd.4.6.2003
Ex.P3 8 RTCs
Ex.P4 Mutation extract
Ex.P5 Copy of legal notice
26 OS.No.6119/2008
Ex.P6 Postal acknowledgement
Ex.P7 Certified copy of amended plaint in
OS.No.8880/2001
Ex.P8 Certified copy of order sheet in
OS.No.8880/2001
Ex.P9 Certified copy of plaint in
OS.No.8880/2001
Ex.P10 Certified copy of written statement in
OS.No.8880/2001
Ex.P11 Certified copy of Gift deed dtd.12.9.2007
Ex.P12 Account extract
Ex.P13 Certified copy of sale deed dtd.7.7.2006
List of witnesses examined for defendants:
DW.1 Siddaramu DW.2 Bhagyamma
List of documents exhibited for defendants:
Ex.D1 Certified copy of plaint in
OS.No.6120/2008
Ex.D2 Certified copy of order sheet in
PCR.No.96/2012
Ex.D3 Certified copy of F.I.R.
Ex.D4 Certified copy of private complaint
Ex.D5 to 8 4 certified copy of vakalathnama
Ex.D9 Registered Partition deed dtd.4.6.2003
Ex.D10 Registered Gift deed dtd.12.9.2007
Ex.D11 Affidavit dtd.26.10.2007
Ex.D12 Certificate issued by Tahsildar
Ex.D13 to 18 6 copies of field sketches
Ex.D19 Electricity License
Ex.D20 Receipt
Ex.D2 to D23 3 Electricity bills
27 OS.No.6119/2008
Ex.D24 to 29 6 receipts
Ex.D30 Certified copy of plaint in
OS.No.8880/2001
Ex.D31 Certified copy of plaint in
OS.No.6354/2009
Ex.D32 Certified copy of order sheet in
OS.No.6354/2009
Ex.D33 Certified copy of Memo in OS.No.6354/09
Ex.D34 to 36 3 photographs
Ex.D37 C.D.
XVII Addl. City Civil & Sessions
Judge, Bengaluru.