Karnataka High Court
Dr B S Prabhakar vs D Rangappa Alias Puttanna on 12 November, 2021
Author: H.P.Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 12TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.F.A.NO.1531/2003 (SP)
BETWEEN:
1. DR. B.S.PRABHAKAR
AGED ABOUT 54 YEARS
1ST SON OF LATE DR.B.S.SUBRAMANYAM
SINCE DECASED BY HIS LRs.,
1(a) SMT. B.S.SEETHA
D/O LATE DR.B.S.SUBRAMANYAM
AGED ABOUT 62 YEARS
1(b) SMT. B.S.GEETHA
D/O LATE DR.B.S.SUBRAMANYAM
AGED ABOUT 56 YEARS
1(c) SMT.B.S.GAYATHRI PANDIT
D/O LATE DR.B.S.SUBRAMANYAM
AGED ABOUT 56 YEARS
ALL ARE RESIDING AT
NO.170 (OLD No.221/2)
6TH CROSS, GANDHINAGAR
BENGALURU-560 009.
(AMENDED VIDE COURT ORDER DATED 19.03.2012)
2. B.S.V.SHARMA
AGED ABOUT 47 YEARS
2ND SON OF LATE DR.B.S.SUBRAMANYAM
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SINCE DECASED BY HIS LRs.,
2(a) ARUNA SHARMA
W/O LATE B.S.V.SHARMA
AGED ABOUT 60 YEARS
2(b) SUSHMA SHARMA B.S.
D/O LATE B.S.V.SHARMA
AGED ABOUT 27 YEARS
2(c) MAHIMA SHARMA B.S.
D/O LATE B.S.V.SHARMA
AGED ABOUT 26 YEARS
2(d) SUSHANTH SHARMA B.S.
S/O LATE B.S.V.SHARMA
AGED ABOUT 22 YEARS
ALL RESIDING AT NO.103
II BLOCK, III STAGE, NAGARABHAVI,
BENGALURU-560 072.
(AMENDED VIDE COURT ORDER DATED 12.06.2018)
3. B.S. SUDHAKAR
AGED ABOUT 45 YEARS
3RD SON OF LATE DR.B.S. SUBRAMANYAM
4. SMT. B.S. VENKATASUBHADRAMMA
AGED ABOUT 77 YEARS
WIFE OF LATE DR. B.S. SUBRAMANYAM
NO.75 [OLD No.221/2]
6TH CROSS, GANDHINAGAR
BENGALURU-560 009.
... APPELLANTS
(BY SRI B.K.MANJUNATH &
SRI K.L.SREENEVASA, ADVOCATES)
AND:
D.RANGAPPA ALIAS PUTTANNA
DECEASED BY LEGAL REPRESENTATIVES
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1(a) P.DAYANANDA
AGED ABOUT 50 YEARS
1(b) P. SRINIVASA
AGED ABOUT 45 YEARS
1(c) P.RAVI
DECEASED BY LR AND WIFE
SMT.MANJULA
1(d) SMT.P.KOMALA
AGED ABOUT 57 YEARS
1(e) SMT.P.LAKSHMI
AGED ABOUT 42 YEARS
1(f) SMT.P.NAGARATHNA
AGED ABOUT 37 YEARS
1(a), (b) AND (c) ARE THE SONS AND
1(d), (e) AND (f) ARE THE DAUGHTERS OF
LATE SRI D.RANGAPPA ALIAS PUTTANNA
ALL CARE OF P.DAYANANDA
NO.76 (OLD NO.221),
6TH CROSS, GANDHINAGAR
BENGALURU - 560 009. ... RESPONDENTS
[BY SRI K.S.RAMESH, ADVOCATE FOR R1(a);
SRI P.RAMESH, ADVOCATE FOR R1(b - f),
VIDE ORDER DATED 19.04.2011]
THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC READ
WITH ORDER 41 RULE 1 AND SECTIONS 94(e) AND 151
THEREOF AGAINST THE JUDGMENT AND DECREE DATED
29.11.2003 PASSED IN O.S.NO.3105/1981 ON THE FILE OF THE
11TH ADDITIONAL CITY CIVIL JUDGE, BENGALURU (CCH NO.8),
PARTLY DECREEING THE SUIT BY DIRECTING THE
RESPONDENTS HEREIN TO PAY A SUM OF RS.30,000/- TO THE
APPELLANTS A/W INTEREST AT 8% FROM THE DATE OF THE
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SUIT TILL THE DATE OF REALISATION AND REJECTING THE
PRAYER OF THE APPELLANTS FOR THE RELIEF OF SPECIFIC
PERFORMANCE AS WELL AS COMPENSATION.
THIS R.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 28.09.2021 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment and decree dated 29.11.2003 passed in O.S.No.3105/1981 on the file of the XI Additional City Civil Judge, Bangalore City dismissing the suit for specific performance in respect of the suit schedule property and granting the alternative relief directing the defendants to pay a sum of Rs.30,000/- to the plaintiffs along with interest at the rate of 8% per annum from the date of the suit till the date of realization.
2. The parties are referred to as per their original rankings before the Trial Court to avoid confusion and for the convenience of the Court.
3. The factual matrix of the case is that the plaintiffs are the legal representatives of late Dr. B.S. Subramanyam and instituted the suit on 14.10.1981 in O.S.No.3105/1981 seeking the relief of specific performance. During the pendency of the 5 suit, the sole defendant D. Rangappa also passed away. Hence, the legal heirs are brought on record as defendants. The legal representatives of D. Rangappa adopted the written statement filed by their father and not filed any fresh written statement, but filed written statement after amendment of plaint. The main relief sought in the plaint is for enforcement of the sale deed which was entered into by the defendant, D. Rangappa for Rs.60,000/- and out of that, an amount of Rs.30,000/- was received and balance was payable at the time of registration of the sale deed.
4. The main contention of the plaintiffs before the Trial Court is that the sale deed was executed by defendant on 02.02.1976 and being the part of sale consideration, an amount of Rs.30,000/- was paid in the presence of the witnesses. The said sale deed could not be presented for registration since, the Urban Land (Ceiling and Regulation) Act (for short the 'ULC Act') was adopted by the State of Karnataka with effect from 17.02.1976. As per the provisions of the said Act, permission by the competent authority was necessitated. The defendant sought the required permission by filing an application before the competent authority, but it was refused. The defendant being 6 aggrieved of the order dated 01.06.1976, filed an appeal and the said appeal came to be dismissed on 15.12.1976.
5. It is further alleged in the plaint that on 15.05.1977, the defendant as required by the order of the Urban Land Tribunal undertook to seek the permission from the competent authority and execute the sale deed in favour of the plaintiff and get it registered by receiving the sale consideration of Rs.30,000/- being the balance, after permission is accorded by the said authority. The defendant, on that day, in token of his agreement to do so acknowledged in writing his liability to execute the sale deed or in the event of permission being refused, to repay the amount of sale consideration of Rs.30,000/-. He also signed the Photostat copy of the sale deed executed by him on 02.02.1976 and consented for the engrossed original sale deed stamp paper being returned to the Government for refund of the permissible stamp value. As assured and agreed, the defendant on 01.06.1977 filed an application before the competent authority for permission to sell the said house to the plaintiff. The permission sought is deemed to have been granted by the competent authority by efflux of time stipulated by law.
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6. It is also alleged that the defendant on 11.02.1978 intimated the plaintiffs in writing as to his readiness to perform his part of the contract. Pursuant to the same, the plaintiff met the defendant and requested to execute the sale deed and to receive the balance of sale price. The defendant told to the plaintiff that he is yet to obtain the income tax clearance certificate to be produced before the Sub-Registrar at the time of sale deed being presented for registration soon and intimate the plaintiff.
7. It is further alleged in the plaint that since the defendant as promised did not intimate the plaintiff of his obtaining the said certificate, he approached him and demand part of the contract being performed. The defendant tried to evade by putting forth one or the other reasons. The plaintiff having known the mind of the defendant, caused notice dated 27.09.1978 to the defendant. Though the defendant has received the said notice on 04.10.1978 neither sent any reply nor complied the demand made in the said notice. The defendant in the middle of 1979 surprisingly approached the first plaintiff and wanted him to pay Rs.10,000/- as a further advance 8 or part payment of the balance of sale price to meet his urgent financial commitments. The first plaintiff was reluctant to pay the said sum, but demanded the defendant to receive the entire balance sale consideration by executing the sale deed and getting it registered. The defendant expressed certain difficulties in getting the income tax clearance certificate and persuaded the plaintiff to come to his rescue in the matter of further payment of Rs.10,000/-. The plaintiffs on the other hand hoping that the defendant will honour their commitment volunteered to pay the rent accrued and in fact, paid Rs.6,000/- being the arrears of rent calculated upto the end of June, 1979. The defendant acknowledged the said amount under receipt dated 04.07.1979. The said amount was paid by the plaintiffs on the clear understanding that the defendant should obtain income tax clearance certificate immediately and perform his part of the contract. The defendant did not honour even the renewed promise.
8. That on 28.04.1981, the plaintiffs to their surprise received a registered notice dated 17.04.1981 caused by the defendant through his Advocate and a suitable reply dated 9 18.05.1981 has been sent by them through their Advocate. After noting the contents of the said reply notice and under further instructions of the defendant, a communication dated 13.06.1981 is sent to the plaintiffs' Advocate, which is also suitably answered by their communication dated 25.06.1981. The defendant with a malafide intention had not complied with the demand made by them in the said reply notice dated 18.05.1981 and communication dated 25.06.1981. Even though the plaintiffs were ever ready and willing to perform their part of the contract, the defendant failed to comply with the demand. Hence, without any other alternative filed the suit.
9. The defendant has filed the written statement opposing the claim of the plaintiffs contending that there is no agreement of sale whatsoever between the parties. The defendant never agreed to sell the plaint property in favour of one Dr. B.S. Subramanyam or in favour of the plaintiffs at any point of time, nor did they receive earnest deposit or advance amount. They never agreed to part with the property for any consideration or under any circumstances. It is contended that, since there is no agreement of sale, the suit for specific performance of such alleged agreement of sale is misconceived 10 and not maintainable. The defendant asked for particulars of the alleged oral agreement for sale of the plaint property and the plaintiffs refused to furnish the particulars. Therefore, it is clear that the plaintiffs themselves are not sure about their case regarding the alleged oral agreement. The plaint refers to renewed promise, acknowledgement and assurance and there was no such acknowledgement, assurance or renewed promise. The allegations in the plaint are all inventions of the plaintiffs and denied the total sale transaction.
10. It is also contended that the alleged permission sought dated 15.05.1977 is not genuine nor has defendant signed any Photostat copy of the previous sale deed. Hence, the plaintiffs are not entitled for any relief. It is contended that this defendant has been a diabetic since very long time. He was taking treatment from late Dr. B.S. Subramanyam, who was a Medical Practitioner and the said late Dr. B.S. Subramanyam has taken undue advantage of his position and created the document taking advantage of helpless condition and induced him to part with the plaint property. This is the correct background under which the sale deed dated 02.02.1976 came to be signed by the defendant. It is clear that late Dr. B.S. Subramanyam, being the 11 family physician fully exploited this situation was in a position to dominate the will of this defendant. The plaintiffs took unfair advantage of this defendant's helpless condition and procured the sale deed dated 02.02.1976. Hence, the same is vitiated by fraud and undue influence.
11. It is further contended in the written statement that even the stamp paper on which the said document was signed was returned to the revenue authorities and the plaintiffs took refund of the stamp value. However, the plaintiffs admit the payment of Rs.6,000/- on 04.07.1979 towards the arrears of rent. But, the payment of arrears was not coupled with any obligation on this defendant's part to sell the plaint property in favour of the plaintiffs or their predecessor. As a matter of fact, the arrears of rent at that point of time were more than Rs.6,000/-. After a very hard bargaining by the plaintiffs, this defendant was compelled to forgo the substantial part of the rent and accepted only Rs.6,000/- towards arrears of rent calculated upto the end of June, 1979.
12. It is also contended that the market value of the plaint property as on 02.02.1976 was about Rs.2 Lakhs. It is incredible that it should have been alleged that this defendant 12 agreed to sell it only for a meager sum of Rs.60,000/-. The property situated in Gandhinagar, which is only of the prize extensions of Bangalore City. The market value of the property in this extension is very high. The attempt of late Dr. B.S. Subramanyam was to snatch this property for a meager amount. The market value of the property as on today would be Rs.5 Lakhs. The specific performance of the contract is purely discretionary and the Court is not bound to decree for specific performance. The defendant also denied in the written statement that the plaintiffs or their predecessor were never ready and willing to perform their part of the agreement. It is contended that they did not have the required funds to complete the transaction. The plaintiffs are not paying even the current rents in respect of the plaint property. They are inventing all kinds of excuses for non-payment of even the admitted arrears of rent. It is also contended that the suit of the plaintiffs is barred by law of limitation. It is further contended that the suit is filed with an intention to avoid the plaintiffs' liability to pay the arrears of rent and also cause lot of harassment to the defendants. Hence, prayed this Court to dismiss the suit. 13
13. During the pendency of the suit, the defendant has passed away and the legal representatives are brought on record and they have adopted the written statement filed by the deceased defendant. The records disclose that the matter was remanded to the Trial Court in view of the judgment passed by this Court in R.F.A.No.821/2001 dated 16.07.2003 for disposal in accordance with law. Thereafter, the plaintiffs have amended the pleadings by inserting para-14 in the place of old para-14 and also inserted a new para-14(a). After amendment to the pleadings, one of the legal representatives of the deceased defendant has filed his additional written statement contending that there is no cause of action for the plaintiffs to have instituted the above suit against the original defendant. The several cause of action referred to in para-14 of the plaint are invented by the plaintiffs to suit their convenience. There was no oral agreement reached between late Dr. B.S. Subramanyam and the decease defendant. The so-called valuation certificate dated 12.01.1976 obtained by late Dr. B.S. Subramanyam with regard to which the suit schedule property is not known to this defendant and in fact, it was even made known to the deceased defendant. The Engineer, who issued the aforesaid certificate 14 never notified the original defendant nor inspected the suit schedule property.
14. It is denied that this defendant signed the alleged sale deed dated 02.02.1976 typed on the requisite stamp paper for being presented to the Sub Registrar for registration in the last of February, 1976. If really the deceased defendant has the intention to sell the suit schedule property in favour of late Dr. B.S. Subramanyam, the said late Dr. B.S. Subramanyam instead of getting the sale deed typed on the requisite stamp paper and obtaining the alleged signatures of the original defendant and the so-called witnesses to be presented at future point of time. If at all there was the alleged oral agreement to sell in his favour could have got the sale deed typed on the requisite stamp paper and requested the original defendant to appear before the concerned Sub Registrar on 02.02.1976 itself and ought to have paid the alleged sale consideration of Rs.60,000/- to the original defendant and got executed and registered the absolute sale deed in his favour. Absolutely there was no need for late Dr. B.S. Subramanyam to have gone through the exercise of getting the sale deed typed on the requisite stamp paper on 02.02.1976.
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15. It is further contended that the time lapse between 02.02.1976 and 17.02.1976 on which day, the ULC Act came into force has not been bothered to be explained by the plaintiffs. If the sale deed dated 02.02.1976 is a genuine transaction, the entire alleged sale transaction would have been completed within no time much less prior to the date of coming to the force of the ULC Act of 1976. It is also contended in the written statement that the alleged acknowledgement dated 15.05.1977 is a document created by the plaintiffs with a view to somehow secure refund of the stamp paper and denied the entire allegation made in substitute para-14 and also para-14(a).
16. Based on the pleadings of the parties, the Trial Court has framed the following issues:
"1. Whether the plaintiffs prove that the defendant had entered into an agreement to sell the schedule property and received Rs.30,000/- as advance amount as alleged?
2. Whether the plaintiffs prove that the defendant has renewed the promise, acknowledgement and assured to executed the sale deed?16
3. Whether the defendant proves that the sale deed dated 02.02.1976 is vitiated by fraud & undue influence as alleged in para-2(a) of the written statement?
4. Whether the plaintiffs prove that they were always ready and willing to perform their part of the contract?
5. Whether the suit is barred by law of limitation?
6. Whether the defendant proves that the notices issued by former Advocate is a collusive correspondence and not according to the instructions of the defendant?
7. Whether the plaintiffs are entitled for specific performance of the contract?
8. What order and decree?"
17. The plaintiffs, in order to prove their case, examined the first plaintiff as P.W.1 and the witnesses P.Ws.2 to 5 and got marked the documents at Exs.P1 to P35. On behalf of the defendants, the defendant No.1(a) has been examined as D.W.1 and closed their side of evidence.
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18. The Trial Court heard the arguments of respective counsels and dismissed the suit for specific performance and granted the relief of refund of amount of Rs.30,000/- with interest at 8% per annum from the date of the suit till the date of realization. Being aggrieved by the judgment and decree of the Trial Court, the present appeal is filed by the appellants-plaintiffs before this Court.
19. The appellants in the appeal memo contend that the Trial Judge has wholly erred in dismissing the suit for the relief of specific performance. The conclusion reached by the learned Trial Judge on issue Nos.3 and 6 is that considering the materials on record, the defendants have utterly failed to prove the issues under consideration and erroneously answered the said issues as negative. That means, the sale deed dated 02.02.1976 which is marked as Ex.P10 was not vitiated by fraud and undue influence and that the notices issued by the former Advocate of the defendants were not collusive correspondence, but committed an error in not granting the relief of specific performance.
20. It is also contended that the Trial Court while answering issue Nos.3 and 6 against the respondents and also 18 on issue No.5 whether the suit was barred by law of limitation, the learned Trial Judge has recorded the finding in favour of the appellants-plaintiffs and comes to the conclusion that, Ex.P13 is well within time and that there was no merit in the contentions of the defendants. Thus, on three very material issues namely issue Nos.3, 5 and 6, the learned Trial Judge has recorded the findings in favour of the appellants and against the respondents. Inspite of it, the Trial Court failed to grant the decree in favour of the plaintiffs. Regarding issue No.4 is concerned, readiness and willingness on the part of the plaintiffs to perform their part of the contract, the Trial Court relied upon the documents Exs.P23 to 25 and observed that the plaintiffs are able to show that Dr.B.S. Subramanyam and the plaintiffs were having funds to pay the balance sale consideration. But, the Trial Judge erred in holding issue No.4 against the plaintiffs solely influenced by the findings on issue Nos.1 and 2.
21. It is contended that at no point of time, the deceased defendant No.1 secured the income tax clearance certificate though he contend that he applied for income tax clearance certificate. Hence, it is clear that the defendant did not perform 19 his part of the contract. Inspite of it, the Trial Judge, committed an error in not granting the relief of specific performance. The Trial Court also, while considering issue No.7 whether the plaintiffs are entitled for specific performance failed to take note of the fact that Ex.P10 itself is termed as sale deed and sale deed was not registered when the document was presented due to ULC clearance and the same was postponed and the plaintiffs were always ready and willing to perform their part of the contract. Though the defendant took time to get the income tax clearance certificate, but failed to obtain the same and committed default in executing the sale deed. Under the circumstances, the Trial Court ought to have granted the relief of specific performance, instead of ordering for refund of money.
22. Learned counsel for the appellants-plaintiffs in support of his argument, relied upon the judgment of the Apex Court in S. KALADEVI VS. V.R. SOMASUNDARAM AND OTHERS reported in (2010) 5 SCC 401 and brought to the notice of this Court para-6 of the judgment regarding unregistered sale deed dated 27.02.2006 tendered for being marked. The counsel referring this judgment would vehemently 20 contend that the Apex Court with regard to effect of non- registration of documents required to be registered, considered Section 49 and also Section 17 in para-11 of the judgment. The counsel also brought to the notice of this Court para-15 wherein, the Apex Court observed that the document has not been presented by the respondent to the Sub-Registrar at all for registration although the sale deed is stated to have been executed by the appellant as he refused to co-operate with him in that regard and vendor declines to appear before the Sub- Registrar, the situation contemplated under Section 77 of the Act would arise.
23. The counsel also relied upon the judgment of the Apex Court in P.S. RANAKRISHNA REDYY VS. M.K. BHAGYALAKSHMI AND ANOTHER reported in (2007) 10 SCC
231. The counsel referring this judgment brought to the notice of this Court that in a case of seeking specific relief, rise in the price of an immovable property by itself is not a ground for refusal to enforce a lawful agreement of sale. The counsel also brought to the notice of this Court para-6 of the judgment. 21
24. The counsel also relied upon the judgment in KALAVAKURTI VENKATA SUBBAIAH VS. BALA GURAPPAGARI GURUVI REDDY reported in AIR 1999 SC 2958 and contend that when the suit is filed for specific performance of the contract, comprehensive suit not only seeking direction to register sale deed but, also recovery of possession, suit not barred on grounds of availability of statutory remedy of registration under Section 77 of the Act and held that it was a comprehensive suit including a relief for specific performance of a contract contained in the sale deed executed, but not registered and, therefore, relief for specific performance could be granted.
25. The counsel also relied upon the judgment in NARINDERJIT SINGH VS. NORTH STAR ESTATE PROMOTERS LIMITED reported in AIR 2012 SC 2035 wherein the Apex Court also discussed with regard to Section 16(c) of the Specific Relief Act, readiness and willingness and mere absence of specific pleading about continued readiness and willingness to perform its part of agreement and availability of 22 funds necessary for payment cannot be a ground to upset concurrent finding in second appeal.
26. The counsel also relied upon the judgment of the Apex Court in GOBIND RAM VS. GIAN CHAND reported in (2000) 7 SCC 548 wherein, the Apex Court also discussed with regard to escalation of real estate prices, no ground to deny specific relief and specific performance of agreement for sale of immovable property held, may be granted where vendor attempts to wriggle out of the contract only because of escalation of real estate prices.
27. The counsel also relied upon the judgment of the Apex Court in ZARINA SIDDIQUI VS. A. RAMALINGAM ALIAS R. AMARNATHAN reported in (2015) 1 SCC 705 wherein, the Apex Court discussed with regard to Section 20 of the Specific Relief Act regarding exercise of discretion, held that discretion must be exercised in accordance with sound and reasonable judicial principles, exercise of discretion to prevent abuse of process of Court, conduct of parties must be considered and parties must come before Court with clean hands. 23
28. The counsel also relied upon the judgment of the Apex Court in RAMESH CHANDRA CHANDIOK AND ANOTHER VS. CHUNI LAL SABHARWAL (DEAD) BY HIS LEGAL REPRESENTATIVES AND OTHERS reported in AIR 1971 SC 1238 regarding Section 22 of the Specific Relief Act. In a suit for specific performance, readiness and willingness to perform his part of contract, if it is proved, the parties are entitled to a decree for specific performance.
29. The counsel also relied upon the judgment of the Apex Court in GAJRAJ VS. SUDHA AND OTHERS reported in (1999) 3 SCC 109 wherein, the Apex Court held that in an application under Order 22, Rule 5, the Trial Court had rightly appreciated the facts and passed an appropriate order. The High Court on revision without appreciating the scope of the application observed that the proposed legal representatives can take up all other defence arising from their individual rights and they are bound by the pleadings of the predecessor, in whose place they are to be substituted.
30. Per contra, learned counsel appearing for the respondents in his argument vehemently contend that the very 24 contention that the sale deed was not executed does not arise since, daughters are minors and question of performing the marriage does not arise. The counsel would submit that when the sale deed at Ex.P10 is dated 02.02.1976 and the ULC Act came into force on 17.02.1976, there was no need to furnish any ULC Certificate on the date of the sale deed i.e., 02.02.1976. The counsel also vehemently contend that as on the date of the sale deed, the ULC Act was not in force. However, it is contended that the signatures obtained on the photocopy of the sale deed is only on misrepresentation. The counsel also would submit that there was no oral agreement between the parties and the document Ex.P10 is styled as sale deed and when the document is styled as sale deed, if really, it was a sale transaction between the parties, the document ought to have been registered on the same day itself and as on that day, there was no ULC Act.
31. The counsel also would vehemently contend that the rent was only Rs.200/- per month and the same was not paid even during the life time of Dr. B.S. Subramanyam. The counsel would contend that, after the matter was remanded, amendment 25 was made and the Trial Court has not considered both oral and documentary evidence placed on record and also not summoned the document invoking Order 16 of C.P.C. and no permission was given to Madankumar to file any application seeking permission. The application is filed by Madankumar for permission and not by defendant and no such application is filed before the ULC seeking permission by the defendant.
32. The counsel also would vehemently contend that the legal representatives of plaintiff have sought refund of stamp duty and not the defendants. The Trial Court has not considered the document at Ex.P9 which shows that the same is in respect of arrears of rent. The document Ex.P10 cannot be termed as sale agreement and the document at Ex.P3 ought to have been taken note of by the Trial Court to calculate the limitation and the same has not been considered.
33. The counsel would vehemently contend that, in the cross-examination P.W.2, it is elicited that Madankumar was not having any authority to file any application before ULC seeking permission. The other witness, who has been examined as P.W.2 is the attester of the sale deed. P.W.3 is a witness 26 referred in respect of stamp duty. P.W.4 says that he was present while making the payment. P.W.5 is examined with regard to sale of the property. The counsel would contend that only after remand, the documents at Ex.P24 and 25 are marked and there is no reference of these documents in the plaint. However, those documents are marked. The plaintiff was continued as tenant and the same is admitted. The document was surrendered and stamp duty was taken and thereafter, the suit was filed and there is no any agreement between the legal representatives of plaintiff and the defendants.
34. The learned counsel for the respondents in support of his argument relied upon the judgment of the Apex Court in GANESH SHET VS. DR. C.S.G.K. SETTY AND OTHERS reported in AIR 1998 SC 2216 and brought to notice of this Court para-8, 10 and 16 wherein, the Apex Court discussed with regard to granting relief on the basis of what emerges from the evidence, even if not pleaded, provided there is no prejudice to the opposite party, such a principle is not applied in suit relating to specific performance.
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35. The counsel also relied upon the judgment of the Apex Court in M.L. DEVENDER SINGH AND OTHERS VS. SYED KHAJA reported in AIR 1973 SC 2457 and brought to the notice of this Court para-16 wherein it is observed that the Court will enforce the contract, if in other respects it can and ought to be enforced, just in the same way as a contract not to do a particular act, with a penalty added to secure its performance or a sum named as liquidated damages, may be specifically enforced by means of an injunction against breaking it.
36. The counsel also relied upon the judgment in B.R. MULANI VS. DR.A.B. ASWATHANARAYANA AND OTHERS reported in AIR 1993 KARNATAKA 257 and brought to the notice of this Court para-14.2 wherein the Apex Court discussed with regard to the agreement was not intended to be an agreement of sale but, it was only taken as security for the amount advanced in order to ensure, payment of the loan; that the parties never intended to treat it as an agreement of sale. Under such circumstances, not entitled for the relief of specific performance. The Apex Court has also discussed in para-35.1 with regard to Section 55(4)(a) of the Transfer of Property Act. 28
37. The counsel also relied upon the judgment of the Apex Court in B.R. MULANI VS. DR.A.B. ASWATHANARAYANA AND OTHERS reported in AIR 1993 SC 1318 wherein the Apex Court discussed with regard to Section 20 of the Specific Relief Act, in a case of suit for specific performance of such agreement cannot be ordered as it was not agreement of sale purely.
38. The counsel also relied upon the judgment of the Apex Court in DEVA RAM AND ANOTHERS VS. ISHWAR CHAND AND ANOTHER reported in AIR 1996 SC 378 and brought to the notice of this Court para-24, 25 and 26, finding might have come to be recorded on some issue, has no right of appeal and he cannot question those findings before the appellate Court.
39. The counsel also relied upon the judgment of the Apex Court in M/S. CITADEL FINE PHATMACEUTICALS VS. M/S. RAMANIYAM REAL ESTATES P. LTD. AND ANR.
reported in AIR 2011 SC 3351 wherein the Apex Court referring Section 16 and 9 of the Specific Relief Act discussed with regard to time is the essence of contract and purchaser 29 unable to get permission within time, vendor had very right to cancel contract and raise defence that time was of essence and decree for specific performance could not be granted.
40. The counsel also relied upon the judgment of the Patna High Court in RAMESHWAR PRASAD SAHI VS. ANANDI DEVI AND OTHER reported in AIR 1960 PATNA 109 wherein the Apex Court discussed that in a case of suit for specific performance in preference to suit under Section 77, Registration Act - delay in bringing suit may amount to waiver.
41. The counsel also relied upon the judgment of the Apex Court in JANAK DULARI DEVI AND ANOTHER VS. KAPILDEO RAI AND ANOTHER reported in (2011) 6 SCC 555 wherein the Apex Court discussed with regard to the specific performance of contract, readiness and willingness to pay entire sale consideration not established and hence, not entitled for relief of specific performance.
42. The counsel also relied upon the judgment of the Apex Court in K.S. VIDYANADAM VS. VAIRAVAN reported in AIR 1997 SC 1751. In this judgment also, the Apex Court discussed with regard to Section 20 of the Specific Relief Act 30 wherein, it is held that delay coupled with substantial rise in prices of properties, it would be inequitable to give relief of specific performance to purchaser.
43. The counsel also relied upon the judgment of the Apex Court in PARMINDER SINGH VS. GURPREET SINGH reported in AIR 2017 SC 3601 wherein also discussed Section 16 and 20 of Specific Relief Act, specific performance of contract-decree for discretion of Court, the plaintiff establishing agreement as real, bona fide and genuine and thus capable of enforcement, defendant failed to perform his part of agreement and thereby committed its breach, concurrent findings of fact by Trial Court and appellate Court in favour of plaintiff.
44. The counsel also relied upon the judgment of the Apex Court in PRAMOD BUILDINGS AND DEVELOPERS PRIVATE LIMITED VS. SHANTA CHOPRA reported in (2011) 4 SCC 741 regarding readiness and willingness to perform and in a suit for specific performance, burden lies on plaintiff to prove readiness and willingness to perform his obligations in terms of the contract.
31
45. Having heard the learned counsel for the appellants, learned counsel for the respondents, the grounds urged in the appeal and also the principles laid down in the judgments referred (supra), the points that would arise for consideration of this Court are:
(i) Whether the Trial Court has committed an
error in not granting the relief of specific
performance as contended by the
appellants?
(ii) Whether the Trial Court has committed an
error in granting an alternate relief of
refund of amount with interest at 8% per
annum from the date of suit and whether it
requires interference of this Court?
(iii) What order?
Point Nos.(i) and (ii)
46. Having considered the grounds urged in the appeal memo, submissions of the respective counsel and also the principles laid down in the judgments referred (supra), this Court has to re-appreciate both oral and documentary evidence placed on record being the First Appellate Court both with regard to question of fact and question of law. Having considered the 32 grounds and the contentions of the parties, it is not in dispute that the plaintiff has relied upon the document of Ex.P10 contending that the defendant agreed to sell the property for a sale consideration of Rs.60,000/-. Out of which, an amount of Rs.30,000/- was paid on the date of execution of the sale deed- Ex.P10. It is the contention of the plaintiff that, due to ULC Act, permission could not be obtained and hence, the same was not registered.
47. On the other hand, the defendant is denying the entire sale transaction and it is also the contention of the respondent-defendant that, there was no bar to register the document of sale deed on 02.02.1976 and ULC Act came into force on 17.02.1976. If really, it was a sale transaction, the sale deed ought to have been registered on the very same day and there was no need to get the ULC clearance certificate for registration, no doubt Ex.P10-sale deed is dated 02.02.1976. The plaintiff has also relied upon the document of Ex.P1 for having received an amount of Rs.30,000/- as sale consideration on the date of Ex.P10 i.e., 02.02.1976.
33
48. On perusal of the document at Ex.P1 dated 15.05.1977, it is clear that the said acknowledgment is given confirming the execution of the sale deed-Ex.P10 and further, it is mentioned therein that the sale deed could not be registered due to prohibition of the Urban Land (Ceiling and Regulation) Act. An undertaking is also given for deduction of the said amount, in the event of getting permission to sell the property in favour of the wife and children of the said deceased person or repay the same to them, if the permission sought for is refused. The document at Ex.P1 is also signed by the defendant.
49. Apart from that the plaintiff has also relied upon the document Ex.P2 i.e., notice received under Section 27 of the ULC Act, in view of an application given by one Madankumar on behalf of the defendant. On perusal of Ex.P2, it is seen that the same contains the signature of Madankunar. But, it is the contention of the defendant that Madankumar was not authorized to make such application. However, the fact is that, in terms of Ex.P10, he is also a signatory to the document of sale deed and he has also been examined as one of the witness 34 before the Trial Court on behalf of the plaintiff and his signature is also notified in Ex.P10.
50. It has to be noted that though the defendants have disputed the very execution of the document Ex.P10, in the cross-examination of D.W.1, he categorically admits his signature available on document of Ex.P10 when the document was confronted which is marked as Ex.P10(j). He also admits that his brother P.S. Srinivas has also signed Ex.P10 and his signature is marked as Ex.P10(k). Hence, it is clear that, apart from the original defendant and his son i.e., D.W.1, his brother P.S. Srinivas has also signed Ex.P10.
51. The other contention of the defendants before the Trial Court is that, as on the date of entering into the sale deed Ex.P10, the property value was more than Rs.2 Lakhs. But, in the cross-examination of D.W.1, he categorically admits that there is no basis for saying that in the year 1976, the market value of the property was Rs.2 Lakhs. The other contention of the defendants is that they were taking treatment with the plaintiff, as the plaintiff was a Doctor. But, he admits that he has no other evidence to show that he himself and his father was 35 taking treatment from the father of the first plaintiff. He also admits that his father was suffering from diabetes since 20 years. It is emerged in the evidence that both the father of the plaintiff and father of the defendant were having acquaintance with each other. It is also an admitted fact that the plaintiff was a tenant under the defendant's father. Though he deposes that the property was not proposed to sale, but the document at Ex.P10 not only contains the signature of father of defendant but also D.W.1 and his brother P.S. Srinivas. Apart from that, in the cross-examination of D.W.1, it is elicited that the signature of his father is marked as Ex.P1(c) and he also identifies the signature of his father on Ex.P3, which is marked as Ex.P3(a). He also admits that on Ex.P5, there is a signature of his father which is marked as Ex.P5(a) and so also the signature of his father on Ex.P9 which is marked as Ex.P9(a) and Exs.P10(a), P10(b), P10(c), P10(d), P10(e), P10(f), P10(g) and P10(h).
52. Having perused the document particularly, Ex.P3, it is clear that the father of defendant himself sent the notice in terms of Ex.P3 that sale transaction has not yet been finalized till 11.02.1978 and he has also mentioned that he is a diabetic patient and is in his advanced age and requested to finalize the 36 transaction within a week from the receipt of the letter and he cannot wait any longer and is not prepared to postpone the matter. Hence, the defendants cannot contend that it is not a sale transaction and the document at Ex.P3 itself is clear that it is a sale transaction. Hence the defence of the defendant that no sale transactions cannot be accepted.
53. A notice was also sent to the father of the defendant in terms of Ex.P4 i.e., in the month of September, 1978. It is also not in dispute that, in terms of Ex.P6, an application is filed before the Urban Land Tribunal and the same was rejected. It is also important to note that before purchasing the property, the property was valued in terms of Ex.P8 on 12.01.1976 prior to the sale deed and the value of the property was Rs.52,725/-. Hence, the very contention that the property is worth more than Rs.2 Lakhs at the time of execution of the sale deed cannot be accepted. Ex.P9 is the receipt for having paid the amount of Rs.6,000/- towards full settlement of rents due from June 1976 to June 1979 in respect of the house premises. Hence, it is clear that, till June 1979, there was no dispute between the parties and thereafter, the dispute has arisen between the parties. 37
54. It has to be noted that the father of the defendant himself has given the notice in terms of Ex.P3 on 11.02.1978 that he cannot wait for longer time. No doubt, legal notice was given to the father of the defendant in terms of Ex.P4 on 27.09.1978, the suit was filed in the year 1981. The material on record discloses that, on account of ULC Act, the sale could not take place though the transaction has taken place between the parties in the year 1976 itself and permission was also refused in June, 1976 and appeal was also dismissed in December 1976 itself.
55. Having considered the evidence available on record, no doubt, the plaintiffs have examined four witnesses, the son of the original holder of the sale deed, who has been examined as P.W.1 in his cross-examination categorically admits that lawyer notice is exchanged between the parties. Ex.P12 is the lawyer notice dated 17.04.1981. Ex.P13 is the office copy of the reply to Ex.P12 dated 18.06.1981. Ex.P14 is the postal acknowledgment corresponding to Ex.P13. P.W.1 admits that he sold the site somewhere in the year 1972-1973. But, the sale transaction has taken place in the year 1976. Hence, P.W.1 cannot contend that in order to purchase the suit property he 38 had sold and the same was sold in the year 1972-73 itself. He admits that his father knew the defendant since from the year 1950. He also cannot state whether the defendant had obtained income tax clearance certificate on 30.01.1976.
56. Though it is emerged in the evidence that there was an oral sale agreement between the plaintiff and defendant, in order to substantiate the same, no correspondence or material is placed before the Court. However, P.W.1 categorically admits that no separate sale agreement was entered into between the legal representatives of his father and the defendants. He admits that an amount of Rs.6,000/- was paid towards arrears of rent and the defendant also issued a receipt for the said amount. He also admits that the defendant has filed an eviction petition and the same was dismissed.
57. I have already pointed out that the plaintiffs have examined other witnesses as P.Ws.2 to 5 to prove the document of Ex.P10 and so also the payment made to purchase the property. D.W.1 in the cross-examination categorically admits that signatures found in Exs.P1 to P3, P5, P9 and P10 belongs to his father. Hence, it is clear that there was a sale transaction 39 between the parties. I have already pointed out that D.W.1 has admitted his signature on the document at Ex.P10. It is suggested to the D.W.1 that an amount of Rs.30,000/- was paid to his father. But, he admits that he did not make any attempt to note the transaction between his father and the father of the plaintiff. However, he categorically admits that there was a sale transaction between Dr. B.S. Subramanyam and his father in respect of the suit schedule property and hence, it is clear that it was a sale transaction.
58. When these admissions are elicited from the mouth of witnesses, it is clear that there was a sale transaction between the father of the plaintiff and also the father of the defendant. From the principles laid down in the judgments referred (supra) by the respective counsels, it is clear that escalation of price is not a ground to refuse the relief of specific performance. No doubt, the Court has to take note whether the plaintiff was always ready and willing to obtain the sale deed, it is not in dispute that sale transaction has taken place between the parties in the year 1976 in terms of Ex.P10. Though the D.W.1 denies that it was not a sale transaction but, categorically admits his signature, signature of his father and also the 40 signature of his brother on the document at Ex.P10. He also admits the signature of his father available in Ex.P3.
59. I have already pointed out that there was a sale transaction between the plaintiff and the defendant. It is important to note that D.W.1 and his brother have also signed the document at Ex.P10 and the D.W.1 also identifies his father's signature in Ex.P1. Hence, it is clear that sale transaction has taken place between the parties. It is also pertinent to note that in terms of Ex.P3, the father of the defendant had caused legal notice in the month of February, 1978 that he cannot wait for longer period and the plaintiff gave the notice in terms of Ex.P4 in the month of September, 1978. Before filing the suit in the year 1981, other notices are also exchanged between the plaintiff and the defendant and for a period of five years, no progress was made.
60. Admittedly, the plaintiff is the tenant in respect of the suit schedule property and the records also discloses that permission sought from the ULC was rejected and appeal was also dismissed. It is also emerged in the evidence that the stamp paper on which the sale deed was prepared was also surrendered and stamp duty paid on the same was taken refund 41 by the plaintiff, after the death of the original holder Dr. B.S. Subramanyam, no doubt, the plaintiff claims that on the Xerox copy of the sale deed, signature was also taken.
61. Having considered the factual matrix of the case and also the material available on record, at the first instance, the suit was dismissed and thereafter, the appeal in R.F.A.No.821/2001 was filed and the same was remanded on the ground that matter requires additional evidence. However, the Trial Court decreed the suit for refund of the amount. When the father of the defendant himself has caused the notice in the year 1978 itself in the month of February, the plaintiff ought to have taken steps to obtain the sale deed. If any document is not obtained from the father of D.W.1, the plaintiff ought to have insisted to get the documents. But, in between 1978 to 1981, there was no correspondence between the parties and the notices issued are also before filing the suit in the year 1981 and the plaintiffs kept quiet inspite of notice being issued by the father of the defendant in February 1978 itself.
62. When such being the facts and circumstances of the case and the plaintiff was a tenant in respect of the suit schedule 42 property, the Trial Court has taken note of the said fact into consideration while passing an order for refund of the amount. Having considered the principles laid down in the judgments referred (supra) and also both oral and documentary evidence placed on record, it is clear that there was a sale transaction between the parties and sale could not be completed in view of bringing ULC Act into force and permission was not given. Apart from that there is no dispute with regard to the fact that steps were also taken to surrender the original stamp paper for getting refund of the amount paid on the stamp duty. But, with regard to exercising the discretion under Section 20 of the Specific Relief Act, in view of the judgments referred by the respective counsel, it is clear that, even if the sale transaction is a lawful transaction, the Court has to take note of the readiness and willingness of the parties to complete the sale transaction.
63. I have already pointed out that Ex.P3 is the notice given by the father of D.W.1 stating that he cannot wait for a longer period to have the sale deed. In between February, 1978 and till the date of filing the suit, the plaintiff has not shown any interest in getting the sale deed, even after causing notice to the 43 plaintiff. When such being the facts and circumstances of the case and also taking into consideration the fact that in the year 1979, a nominal rent of Rs.200/- payable to the landlord was also paid by the plaintiff and the said fact is also taken note of, it is not a fit case to exercise the powers under Section 20 of the Specific Relief Act in favour of the plaintiff to grant the relief of specific performance. No doubt, in the judgments referred (supra) by the learned counsel for the appellants-plaintiffs, the Apex Court has held that if there is a lapse is on the part of the defendant, under such circumstance, the Court can grant the relief of specific performance but, in the case on hand, there is a lapse on the part of the plaintiff from 1978 to 1981. It is also the contention of the learned counsel for the appellants that ULC permission is deemed if no order is passed, but no action is taken to get the document registered. Under the circumstances, it is not a fit case to grant the relief of specific performance.
64. However, this Court has taken note of the fact that the Trial Court ought to have granted the interest more than 8% per annum, since it is not a loan transaction and it is a sale transaction. Admittedly, an amount of Rs.30,000/- was paid by 44 the plaintiff to the defendant in the year 1976 itself. I have already pointed out that there was a sale transaction between the parties. Hence, the defence of the defendants that there was no such sale transaction cannot be accepted. However, the plaintiff failed to obtain the sale deed, even after causing legal notice in the month of February, 1978 itself and it is important to note that the suit is also filed belatedly in 1981. Therefore, in order to obtain the relief of specific performance, the plaintiffs must be always ready and willing to have the sale deed and such evidence is missing in the case on hand. Hence, it is appropriate to order for refund of the amount of Rs.30,000/- on the higher rate of interest not as ordered by the Trial Court. The Trial Court committed on error in allowing the amount of interest from the date of suit and it should be from the date of payment i.e., 02.02.1976. Accordingly, I answer point No.(i) as 'negative' and point No.(ii) as 'partly affirmative' in modifying the judgment. Point No.(iii)
65. In view of the discussions made above, I proceed to pass the following:
ORDER
(i) The appeal is allowed in part.45
(ii) The judgment and decree dated 29.11.2003 passed in O.S.No.3105/1981 on the file of the XI Additional City Civil Judge, Bangalore City is modified directing the defendants to refund the amount of Rs.30,000/- to the plaintiffs with interest at 12% per annum as against 8% per annum from the date of payment i.e., 02.02.1976, till the date of realization.
(iii) Draw decree accordingly.
(iv) The Registry is directed to transmit the Trial Court records to the concerned Trial Court forthwith.
Sd/-
JUDGE ST