Bangalore District Court
Sri. Somasekhar Reddy .G vs Sri. Kshemendranath Pudukudi on 7 January, 2016
BEFORE THE I ADDITIONAL JUDGE COURT OF SMALL
CUASES BANGALORE. (SCCH-11)
DATED THIS 7th DAY OF JANUARY, 2016
PRESENT: SRI. Ganapati Gurusidda Badami., B .Com., LL.B. (SPL),
I Addl SCJ & MACT. Bangalore.
S.C No.804/2015
PLAINTIFF: Sri. Somasekhar Reddy .G,
S/o. Sri. Narasimha Reddy Gudipalli,
Aged about 39 years,
Residing at Flat No.G-2,
Mana Residency Apartments,
Behind Care Coffee Day,
Near Bellandur Signal,
Bengaluru - 560 103.
(By pleader......Sri.V. Krishna Murthy)
- V/S -
DEFENDANT: Sri. Kshemendranath Pudukudi,
Son of Late U.K.Kunihirama Poduval,
Aged about 48 years,
Managing Director of
Sapa Extrusion India Private Ltd.,
No.17, 2nd Floor, Bannerghatta Road,
J.P.Nagar, 3rd Phase,
Bengaluru - 560 076.
Permanent Resident of No.10/301,
Siddhachal Housing Complex,
Opp. Pokhran Road, No.2,
Thane West - 400 601.
(By pleader......Sri.Rajashekar B. Kanavi)
SCCH - 11 2 SC No.804/2015
J U D G M E N T
Plaintiff has filed this suit against the defendant seeking the relief of recovery of money.
2) It is averred that, plaintiff was in search of a residential property which got clear and marketable legal title with all clearances and approvals. The defendant approached the plaintiff and expressed his willingness to sell the residential property No.7, Khatha No.338, Carved out portion of old property No.137/2, situated at Channasandra village, Bidarahalli Hobli, Bangalore, Panchayath assessment H.L.No.338, Channasandra village, Bangalore measuring East to West 42 feet and North to South 32 feet, totally 1344 sq.feet claiming to be the owner of the same and he informed the plaintiff that he has got clear marketable title and he obtained all the requisite permissions from the competent authority, the property has got valid title without any deviations with approvals. The defendant assured that, the said property is having full fledge marketable title and offered to the plaintiff to sell and the plaintiff negotiated with him to buy the same. The defendant assured that the title deeds are genuine SCCH - 11 3 SC No.804/2015 and he has not violated any of the conditions imposed by the competent authority. At the time of negotiations, the defendant has accepted and undertaken to furnish all the required documents and assured the plaintiff that he would furnish the same without fail and also assured and undertaken to make out legal marketable title to the property and also undertaken to refund the earnest money to be paid by the petitioner. On the assurance of the defendant, the plaintiff has paid an advance amount of Rs.1,00,000/- through cheque bearing No.38427 dated 23.02.2015 drawn on ICICI Bank, Bellandur Branch, Bangalore to the defendant. The plaintiff was eager to enter into sale agreement and sought requested the defendant to furnish all the required documents. After scrutiny of the available documents furnished by the defendant and it is noticed that the layout plan itself was not approved by the competent authority, the conversion order alleged to be obtained finds no place in the sale deed dated 21.6.2004 obtained by the defendant. The building plan was also not sanctioned by the competent authority. The President of Channasandra village panchayath has no power to sanction the building plan. In the alleged building plant there is not mention of SCCH - 11 4 SC No.804/2015 date, approval number and time for completion of building and such other details, which ought to have been mentioned. The construction carried out by the defendant was an illegal construction with 60% deviations. The defendant miserably failed to make out the legal time to the above property and willful intention, with a sole intention to make illegal gain, coerced the plaintiff to part with the money. The defendant was aware that he had no legal title to the said property and the property was not got all the requisite clearance as know to law. The property number shown in the aforesaid sale deed finds no place in the katha and katha extract issued by the BBMP for the said property. There is no nexus between the site number shown in the sale deed and the alleged document issued by the BBMP. The defendant has failed to furnish the documents to get the legal clearance. The documents furnished by the defendant have no nexus, continuity to derive the marketable and legal title and the efforts made by the plaintiff. The plaintiff has been ready to enter into an agreement of sale and in this regard communication was exchanged through the mails. Each time the defendant kept on convincing the plaintiff that he would make out a valid and legal title to the property without any SCCH - 11 5 SC No.804/2015 blemish. But the defendant has not made out a good and marketable title to the property in question. The defendant sent a mail to the plaintiff stating that, the plaintiff has caused loss and demanded the plaintiff to owe the money more than the advance amount, which the plaintiff had paid. The entire approach of the defendant is mala-fide, intentional and deliberate, which amounts to breach of trust. The defendant has induced the plaintiff to part with money and received a sum of Rs.1,00,000/- from the plaintiff to have a wrongful gain, misappropriated the same for his personal gains for which the defendant is not entitled to. Even now the plaintiff is ready and willing to purchase the property, if the defendant makes out good and marketable title to the property by clearing all the lacunas. The efforts made by the plaintiff in this regard went in vain. The plaintiff issued a legal notice dated 27.4.2015 by RPAD to the defendant requesting him to return the advance amount of Rs.1,00,000/- which was paid by the plaintiff through cheque along with interest at the rate of 18% p.a. from the receipt of notice. The defendant have received the legal notice and issued an untenable reply. Hence, plaintiff constrained the file this suit.
SCCH - 11 6 SC No.804/2015
3) Defendant filed written statement and denied the contents of the claim petition. It is contended that, defendant has undisputed proper title to suit property. It is admitted that, the plaintiff paid Rs.1,00,000/- by cheque as token advance agreeing to purchase the suit property belonging to defendant by executing sale agreement and subsequently sale deed. The said amount is not refundable used for procuring old documents related to property as demanded by the plaintiff. In terms of the oral arrangements, the defendant obliged to carry out furnished even 30 years old documents pertaining to suit property. The plaintiff was not satisfied by the defendant's documents and sought for survey of land where the BBMP property site and building existed. In spite of all these documents, the plaintiff was adamant and reluctant to enter into an agreement or sale with defendant to abide by all oral talks and rejected the documents when defendant reserved the right to reject transfer of his property as plaintiff was not property interested in purchase of property from defendant. The plaintiff was never serious to purchase and had severe doubt to purchase the property and had no regards for ethics and moral SCCH - 11 7 SC No.804/2015 responsibility to the defendant to complete business interest. But the plaintiff betrayed the expectations of defendants needs to sell the property and conduct of the plaintiff were consistently odd to the conduct expected from a professional buyer, which conduct has been to the deterrent interest of the defendant's sale of his property. Instead of performing the contract of sale between plaintiff and defendant, the plaintiff issued legal notice. The toke advance amount given by the plaintiff is not refundable as per agreement and having spent nearly a lakh to get mother documents and Rs.45,000/- to real estate agent Sunil Tiwari through cheque bearing No.381999 on ICICI Bank, Koramangala Bank for mediating with plaintiff and in spite of all this, the defendant is conveyed by dissatisfaction with the plaintiff's responsibility in completing contract for sale which is reflected in his e-mail. The defendant has suffered a lot mentally, physically and stress and as such is at liberty to take action against the plaintiff for harassing him. There is no cause of action to file the suit. The defendant who has suffered the losses on account of plaintiff's conduct and blatant violation of terms of contract of sale and losses being unbearable and intolerable by resultant of the SCCH - 11 8 SC No.804/2015 plaintiff's actions, the plaintiff on the contrary liable to compensate for the same. The defendant has suffered tremendous loss of business and goodwill, owing to the abrupt delay in registration of sale and purchase by the plaintiff from the defendant and total unprofessional approach and not responding to the calls during urgency of sale and loss of the prospective clients by defendant has resulted in substantiated loss of business to the defendant. The abrupt rejection of sale completion by the plaintiff when prominent buyers where there has resulted in a profit and loss of opportunities for the defendant and loss of interested buyers calculated at Rs.2,00,000/- on the basis of market value of property. The court fee paid by plaintiff is insufficient and suit is not property valued. Therefore it is prayed for dismissal of the suit.
4) Plaintiff himself got examined as PW.1 and got marked documents at Ex.P1 to 7 and closed the evidence. Though ufficient time has been given the defendant, he has not led his evidence hence, defendant side evidence is taken as nil.
SCCH - 11 9 SC No.804/2015
5) Heard the arguments of the learned counsel of
plaintiff, though sufficient opportunities is given to the defendant and defendant has not led his evidence and submitted their arguments. Hence, defendant side arguments is taken as not addressed and suit is taken for disposal on merits.
6) The following points that arise for my consideration are:
1. Whether the plaintiff proves that, he has paid advance amount of Rs.1,00,000/- through cheque bearing No.38427 dated 23.2.2015 drawn on ICICI Bank, Bellandur Branch, Bengaluru towards purchase of property and the defendant has failed to execute the sale deed and also not repaid the said amount inspite of issue of legal notice?
2. Whether the plaintiff is entitled for recover Rs.1,00,000/-? If so, at what rate of interest?
3. What order or decree?
7) My findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : In the partly affirmative;
Point No.3 : As per final order, for the following:
SCCH - 11 10 SC No.804/2015
R E A S O N S
8) POINT No.1: PW.1 has stated in his evidence that, he was in search of a residential property which got clear and marketable legal title with all clearances and approvals and defendant approached him and expressed his willingness to sell the residential property No.7, Khatha No.338, carved out portion of old property No.137/2, situated at Channasandra village, Bidarahalli Hobli, Bangalore East Taluk, Panchayath assessment H.L.No.338, Channasandra village, Bangalore measuring east to west 42 feet and north to south 32 feet, totally 1344 sq.ft. claiming to be the owner of the same and he informed him that he has got clear marketable title and obtained all the requisite permissions from the competent authority and the property got valid title without any deviations with an approvals. He has also stated that, the defendant assured that, the title deeds are genuine and he further informed that, he has not violated any of the conditions imposed by the competent authority and at the time of negotiations, the defendant has accepted and undertaken to furnish the same without fail and also assured and undertaken to make out legal marketable title to the SCCH - 11 11 SC No.804/2015 property and also undertaken to refund the earnest money to be paid by him, if the marketable title is not made out. He has stated that, he has assured of the defendant, without doubting his bonafides he has paid an advance amount of Rs.1,00,000/- by cheque bearing No.38477 dated 23.2.2015 drawn on ICICI Bank, Bellandur Branch, Bangalore to the defendant and the defendant has en-cashed the said cheque and on payment of the aforesaid advance amount to the defendant and he requested the defendant to furnish all the required documents. He has stated that, after scrutiny of the available documents furnished by the defendants, it is noticed that the layout plan itself was not approved by the competent authority, the conversion order alleged to have been obtained finds no place in the sale deed dated 21.6.2004 obtained by the defendant and the building plan was also not sanctioned by the competent authority. He has stated that, the construction carried out by the defendant was an illegal construction with 60% deviations and defendant is miserable failed to make out the legal title to the said property and the defendant with a sole intention to make illegal gain, coerced him to part with the money. He has stated that, the property/site number shown in the sale deed finds SCCH - 11 12 SC No.804/2015 no place in the khatha and khatha extract issued by the BBMP for the aforesaid property and there is no nexus between the site number shown in the sale and the alleged document issued by the BBMP and the defendant has failed to hand over the documents to get the legal clearance. He has stated that, he has been ready to enter into an agreement of sale in this regard communication was exchanged through the mails and defendant kept on convincing him that he would make out a valid and legal title to the property without any blemish. He has stated that, defendant has not kept his assurance and defendant had sent a mail to his stating that, he caused loss and demanded him to owe the money more than the advance amount which he has paid to him. He has also stated that, on 27.4.2015 he issued a legal notice through RPAD to defendant requesting him to return the advance amount of Rs.1,00,000/- and defendant has received legal notice and given untenable reply.
9) In the cross-examination of PW.1 he has stated that, he came to know about the defendant by way of his advertisement about his property sale Enchanted Goods Villa and he requested to the defendant to provide more details about the property like SCCH - 11 13 SC No.804/2015 measurement, number of bed rooms bathroom etc., In the month of February 2015 he met the defendant and he shown property to him and told him that the property is marketable title, 'A' Khatha which comes under BBMP limits and it is a approved layout and everything is clear to buy the property. He has stated that, defendant handed over one of the sale deeds and the documents now shown to me which is bearing dated 21.6.2014 and the defendant told him that the Khatha has been transferred in his name. he has admitted that, the khatha now shown to him dated 13.3.2015 was shown to him by the defendant and said property is in the name of defendant. He has stated that, defendant was not able to provide approved layout and there is deviation around 42% to 50% from the approved plan. He has stated that, the agreed amount is Rs.96,00,000/- and he has paid advance amount of Rs.1,00,000/- to the defendant and defendant told him that he will provide all required documents to make the property marketable title and if any litigation or any link documents are missed, he will taken the responsibility. He has stated that, there is approved BBMP plan, but not approved layout plan and out of the approved BBMP plan, there is lot of deviation of construction. He has stated that, he do SCCH - 11 14 SC No.804/2015 not aware that the defendant has spent Rs.1,00,000/- for collecting the linked documents and the defendant never communicated to him that he will spend Rs.1,00,000/- for collection of documents. On perusal of the Ex.P.1 which is account extract issued by ICICI Bank and as per the said amount, the amount of Rs.1,00,000/- transferred to the account of the defendant on 23.2.2015 through cheque bearing No.38427 and the balance amount of Rs.6,30,187.46 ps. The plaintiff has also produced office copy of legal notice, postal receipt and postal acknowledgment about notice issued to the defendant which returned unserved.
The plaintiff has produced reply notice given by the defendant which is marked at Ex.P.7 and as per the contention taken by the defendant in the written statement, the plaintiff has paid said amount of Rs.1,00,000/- to the defendant to arrange the document and it was not an advance amount. The defendant has not disputed the receipt of Rs.1,00,000/- from the plaintiff through cheque bearing No. 38427 but only the contention is that, he has spent said amount for securing the document. Though the defendant has taken the said contention, he has not produced any document to show that, plaintiff has given said amount of Rs.1,00,000/- towards SCCH - 11 15 SC No.804/2015 collection of the records. The defendant no where disputed about receipt of Rs.1,00,000/- from the plaintiff. But though the defendant has taken contention that, the said amount was paid by the plaintiff to get the mother document, Rs.45,000/- to the real estate agent Sunil Tiwari through cheque, he has not produced any document to that effect. Even he has not produced any document to show that, the plaintiff agreed to spend the said amount to get mother document and said documents is not refundable. Hence, the contention taken by the defendant is not supported by the document and it is not acceptable. The defendant received the amount of Rs.1,00,000/- from the plaintiff which is not paid by him and plaintiff has issued legal notice which is served upon the defendant and defendant has failed to refund the said amount. So, I hold that, the plaintiff has proved that, the defendant has not paid the said amount. So, I answer point No.1 in the Affirmative.
10) POINT No.2 : In view of my discussion in detail, the plaintiff is entitled to recover Rs.1,00,000/- from the defendant. But the plaintiff has claimed interest at the rate of 18% per annum which is exorbitant one. Considering the nature of SCCH - 11 16 SC No.804/2015 transactions in between the plaintiff and defendant, I feel it just and proper to award the interest at the rate of 9% per annum which is reasonable one. So, I answered point No.2 in partly Affirmative.
11) POINT No.3 : For the reasons discussed above, I proceed to pass the following:
ORDER Suit of plaintiff is hereby partly decreed with costs.
The plaintiff is entitled to recover the amount of Rs.1,00,000/- from defendant, along with interest @ 9% p.a. from the date of suit till its realisation.
The defendant shall repay the said amount in two equal installments within the span of 2 months from the date of decree without fail.
Draw decree accordingly.
(Dictated to the stenographer, transcribed by her, corrected by me, then pronounced in Open court on this the 7th day of January, 2016.) (GANAPATI GURUSIDDA BADAMI) I ADDL.SMALL CAUSES JUDGE & XXVII ACMM SCCH - 11 17 SC No.804/2015 A N N E X U R E WITNESSES EXAMINED FOR PLAINTIFF:
PW.1 - Sri. Somashekhar Reddy G.
DOCUMENTS MARKED FOR PLAINTIFF:
Ex.P.1 - Bank Statement
Ex.P.2 - Office copy of legal notice
Ex.P.3 &4 - Two postal receipts
Ex.P.5 - One postal acknowledgment
Ex.P.6 - One unserved postal cover
Ex.P.7 - Reply given by the defendant to the legal notice
WITNESSES EXAMINED FOR DEFENDANT:
- NIL -
DOCUMENTS MARKED FOR DEFENDANT:
- NIL -
I ADDL.SMALL CAUSES JUDGE & XXVII ACMM