Bangalore District Court
G.Muralidhar vs S.R.Somashekar Iyer on 9 January, 2017
IN THE COURT OF XVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (C.C.H.16)
Present: Sri. Ravindra Hegde,
M.A., LL.M.
XVII Addl. City Civil & Sessions Judge.
Dated this 9th Day of January, 2017
O.S.No. 1000/2006
Plaintiff/s : 1. G.Muralidhar
S/o L.V.Govinda Setty,
Aged about 53 years,
2. M.A.Darshan
S/o G.Muralidhar,
Aged about 24 years,
Both are R/at No.3955,
'Sridhama', 17th D Cross, IV Main
Banashankari 2nd Stage,
Bengaluru - 70.
[By Sri.V.V.Gunjal - Adv.]
-Vs-
Defendant/s : 1. S.R.Somashekar Iyer
S/o S.V.Ranganatha Iyer
Aged about 47 years,
2. S.R.Bhaskara
S/o S.V.Ranganatha Iyer
Aged about 51 years,
Both are R/at No.7, 4th Cross,
VII Block, Jayanagar
Bengaluru - 82
[By Sri. V.M. - Adv.]
Date of institution of the suit 01.02.2006
Nature of the suit Specific performance
Date of commencement of 05.4.2013
recording the evidence
Date on which the judgment 09.01.2017
was pronounced
2 OS.No.1000/2006
Total duration Years Months Days
10 11 08
(Ravindra Hegde),
XVII Addl. City Civil & Sessions Judge.
**********
JUDGMENT
This suit is filed by the plaintiffs for specific performance and to direct the defendants to execute the absolute sale deed in favour of the plaintiffs in respect of the suit property and seeking permission to the plaintiffs to deduct additional registration charges due to the delayed execution of the sale deed from the balance consideration amount and to put the plaintiffs in possession of the suit property and for costs.
2. The case of the plaintiff in brief is that, the defendants are the owners of the suit property which is one compact block. The suit property has been gifted to them by two gift deeds executed by their father Ranganatha Iyer by registered gift deed dated 20.2.2002 and 16.2.2002. The defendants offered to sell the suit property to the plaintiffs for Rs.32,00,000/- for entire property. As per the negotiation, the defendants entered into an agreement of sale of their respective shares jointly to the plaintiffs and agreement came 3 OS.No.1000/2006 to be executed on 15.9.2005 and defendants also received sum of Rs.1,00,000/- each as advance consideration amount. The defendants have shown the original of the title deeds to the plaintiffs' bankers Indian Overseas Bank who were to finance the plaintiffs. The written agreement was drawn for sale of the suit property and the time was essence of the contract. Sale was to be completed by or before 15.12.2005. The plaintiffs reminded the defendants on 5.12.2015 by giving a telegram and also intimated that they have kept the draft sale deed ready for inspection and expressed the readiness and willingness to complete the transaction. The defendants received the said notice and gave untenable reply on 7.12.2005 admitting the agreement and stating that the plaintiffs have not provided draft sale deed duly authenticated and called upon the plaintiffs to produce the copies of the pay orders. The plaintiffs again gave another copy of the draft sale deed on 9.12.2015. The plaintiffs have produced photocopies of the bankers cheques for Rs.7,75,000/- each in favour of each of the defendants to the extent of loan taken by the plaintiffs and balance was to be paid in cash. Thereafter, the plaintiffs gave another reminder by telegram on 3.1.2006 to complete the sale transaction and reminded the defendants of their obligation. The defendants 4 OS.No.1000/2006 again offered the property for sale and when the plaintiffs questioned and demanded completion of the sale, they challenged the plaintiffs to go to court. Then the plaintiffs gave a caution notice in Vijaya Times on 10.1.2006 by spending Rs.3,000/-. As there was no response from the defendants, plaintiffs issued a legal notice dated 18.1.2006 calling upon the defendants to receive the balance consideration amount and execute the sale deed and has spent Rs.5,000/- for the notice. The defendants have received the notice on 19.1.2005 and have given reply on 19.1.2006 stating that the deal is called of by letter dated 19.12.2006. The defendants have also stated that they have forfeited the advance paid when the agreement was entered into. The defendants have intentionally failed to perform their part of the contract. Though the plaintiffs through well wishers approached the defendants and requested to execute the sale deed, the defendants are not coming forward. The plaintiffs have got necessary funds to get the sale deed registered. The defendants will also liable to pay additional registration charges in the event of escalation of prices. With these averments, the plaintiffs have filed this suit.
3. The defendants have appeared and have filed the written statement stating that the suit is not maintainable. 5 OS.No.1000/2006 The ownership of the defendants of the suit property is admitted by them. The defendants have denied that they have showed the documents to the Indian Overseas Bank and stated that the defendants were not having any knowledge that the plaintiffs were availing the loan for purchasing the property. It is stated that the draft sale deed produced by the plaintiffs was totally against the terms agreed between the parties and therefore, the defendants have rejected the draft sale deed. It is stated that the plaintiffs were called upon to pay the entire sale consideration in the form of D.D. and the plaintiffs produced D.Ds. only to an extent of Rs.7,75,000/- in favour of each of the defendants and question of accepting the cash or bearer cheque would not arise. It is stated that the plaintiffs were never ready and willing to complete the sale transaction and instead, played various tricks and also tried to play fraud on the defendants. The defendants have stated that there was no occasion for the plaintiffs to issue baseless, frivolous and mischievous paper publication and defendants protested against such paper publication. The plaintiffs by making this unwanted and unwarranted averments are trying to seek the sympathy of the court. By suppressing these materials and relevant facts, the plaintiffs have approached the court with 6 OS.No.1000/2006 unclean hands. It is stated that there is no cause of action to the suit and the suit is barred by limitation. The defendants have stated that the plaintiffs are not entitled for any relief. It is stated that the defendants were always ready and willing to complete the sale transaction within the specified date and they had negotiated to purchase another property and due to the plaintiffs not completing the instant transaction, the defendants lost the advance amount. The defendants have stated that the plaintiffs produced the draft sale deed wherein the consideration was shown as Rs.17,50,000/- and have produced two DDs. of Rs.7,75,000/- each and in the draft sale deed, it is mentioned that the vendors have accepted Rs.2,00,000/- as advance. The plaintiffs have also revealed the D.Ds. procured by them towards registration charges and stamp duty payable to the Sub-registrar for a sale consideration of Rs.17,50,000/-. It is stated that the plaintiffs also produced another sale agreement dated 15.9.2005 duly signed by the plaintiffs and demanded the defendants to sign the agreement. The defendants felt that there is some thing very fishy in the act and action of the plaintiffs and refused to sign the said revised agreement. The plaintiffs also produced the loan sanction letter of Indian Overseas Bank for Rs.25 lakhs in which balance 7 OS.No.1000/2006 consideration is shown as Rs.17,50,000/-. The plaintiffs tried to impose unwanted conditions in demanding that the father of the defendants should be the consenting witness to the sale deed. It is stated that defendants were never ready to receive any amount by cash or bearer cheque. Having failed to play fraud on the defendants by forcing them to execute an agreement for lessor amount, the plaintiffs have filed the suit with malafide intention. It is stated that if the parties failed to perform their part of the contract, the remedy was to pay damages of Rs.1 lakh only as per Clause 6(a) of the agreement. The defendants are entitled for damages since the plaintiffs have taken out false, fabricated, unwarranted and unwanted public notice damaging the reputation of the defendants. On these grounds the suit is prayed to be dismissed with costs.
4. On these pleadings, following Issues are framed by my learned predecessor: -
1) Whether the plaintiffs prove that they were ready and willing to perform their part of contract?
2) Whether the defendants are entitled to damages of Rs.1,00,000/-?
3) Whether the plaintiffs are entitled to the specific performance sought for?
4) To what decree or order?8 OS.No.1000/2006
5. In support of the plaintiffs' case, PW.1 to 3 are examined. Ex.P1 to P21 are marked. For defendants, DW.1 is examined. Ex.D1 to D10 are marked.
6. Both the counsels have filed written arguments.
7. My answer to the above issues are as under:-
Issue No.1: In the Affirmative Issue No.2: In the Negative Issue No.3: In the Affirmative Issue No.4: As per final order, for the following:
REASONS
8. Issue No.1 and 2:- Both these issues are taken together for discussion to avoid repetition.
9. The plaintiffs have filed this suit for specific performance of the agreement of sale entered into between the plaintiffs and defendants on 15.9.2005. As per the agreement, the plaintiffs have agreed to purchase the suit property for Rs.32,00,000/-, out of which Rs.2,00,000/- was paid as advance and sale deed was to be executed within 3 months by 15.12.2005. According to the plaintiffs, though the plaintiffs were ready and willing to perform their part of the contract and defendants on one or the other reasons avoided the execution of the sale deed. The defendants on the other hand have admitted the transaction, but contended 9 OS.No.1000/2006 that, the plaintiffs were not ready to perform their part of the contract and they were not ready and wiling to pay the balance amount of Rs.30,00,000/- and they have tried to pay only Rs.17,50,000/- as consideration amount and get the sale deed executed. It is also contended by the plaintiff that though the defendants asked the plaintiffs to provide draft sale deed and give copy of the DDs. for payment of the balance consideration amount, the plaintiffs have not complied with the demands and have put unreasonable conditions like taking signature of the defendants as consenting witness to the sale deed etc. The defendants have stated that for the failure of the plaintiffs to abide by the terms of the agreement dated 15.9.2005, the agreement has lapsed and the plaintiffs are entitled for damages of Rs.1,00,000/- from the plaintiffs.
10. Plaintiff No.1 has given evidence as P.W.1 and has stated that plaint averments in his chief affidavit. He has stated that they had availed loan of Rs.17,50,000/- from Indian Overseas Bank for purchase of the property and the bank had sanctioned the loan of Rs.17,50,000/- for purchase of the property and the remaining amount was to be paid by cash or bearer cheque to the defendants at the time of registration of the sale deed and even before the date for the 10 OS.No.1000/2006 registration of the sale deed, the plaintiff have informed the defendants about the readiness and willingness etc. In the cross-examination, the witness has stated that for purchase of the property, he had applied for loan of Rs.19,00,000/- to the Indian Overseas Bank and he had given Ex.P1 agreement of sale also to the Bank. He has stated that he has not produced the draft sale deed prepared for execution. The witness has denied that by stating that the consideration amount of Rs.32,00,000/- is excess and the plaintiffs have agreed to purchase only for Rs.19,00,000/-, an agreement was prepared and given to the defendants and it is in their custody. The witness has denied that he was not ready to get the sale deed executed in time. The witness has stated that he has not deposited the balance consideration amount in the court. The witness has denied that the premises was not required for him and he was intending to purchase, for selling it to others. The witness has admitted that the price of the property has increased to certain extent now.
11. P.W.2 is a witness to Ex.P1 agreement. He has stated about the terms of the agreement and also the readiness of the plaintiffs to get the sale deed executed by payment of balance amount and stated about plaintiffs approaching the Indian Overseas Bank for loan of 11 OS.No.1000/2006 Rs.15,00,000/- and it was sanctioned and it was towards part consideration amount and the bank has even delivered pay orders and it was in respect of 50% of the consideration amount and Rs.2,00,000/- advance paid and remaining balance was with the plaintiffs and were agreed to be paid by cash or cheque as desired by the defendants. In the cross- examination, the witness has stated that earlier he was intending to purchase this property in the name of his sister and as she was not ready, then the plaintiffs have offered to purchase the property. He has stated that he was present at the time of execution of the agreement and he has stated that he is not aware of another agreement. He has stated that 1st defendant has asked for another agreement for the purpose of submitting to the tax department.
12. P.W.3 is the Manager of the Indian Overseas Bank who has stated that they had sanctioned Rs.15,00,000/- to the plaintiff for purchase of the property and total consideration amount agreed was Rs.32,00,000/- and purchaser had agreed to arrange balance amount of Rs.15,00,000/-. The witness has stated that Rs.50,000/- was given by the plaintiffs and then for Rs.15,50,000/- bankers cheques were taken and were carried to the Sub-registrar office on 15.12.2005 for giving to the defendants. The witness 12 OS.No.1000/2006 has stated that as per their procedure the bank itself will deliver the DDs. to the vendor and accordingly on 15.12.2005 and on 17.12.2005, the bank Manager had been to Sub- Registrar Office with the plaintiffs, but the seller has not come and thereafter on the request of the plaintiffs, the bankers cheques have been cancelled. In the cross- examination, the witness has stated that he is deposing on the basis of the documents and he has taken charge only in January, 2014. The witness has stated that in Ex.P16 consideration amount is mentioned as Rs.32,00,000/- and admitted that in Ex.P18 they have mentioned the market value of the property as Rs.19,25,000/- and had stated that bank had sanctioned Rs.15,00,000/- loan only and they have given DDs. for Rs.7,75,000/- each by taking some amount from the plaintiff. The witness has stated that they will sanction 75 to 80% of the market value of property as loan.
13. The plaintiffs have produced the agreement of sale dated 15.9.2005 as Ex.P1. Letter sent by the plaintiffs to the defendants on 5.12.2005 informing that they are ready and willing to get the sale deed executed and that they have kept the cash ready to pay the balance consideration amount and that the draft sale deed is also kept ready for the inspection is produced as Ex.P2. Copy of the reply given by the 13 OS.No.1000/2006 defendants is marked as Ex.P3. Copy of the notice issued to the defendants and the reply given by the defendants are marked as Ex.P4 and P5. Different telegrams given by the plaintiffs to the defendants are marked as Ex.P6 and P7 and the receipts are marked as Ex.P8 and P9. Photographs of the property and the CD are marked as Ex.P10 and P11. G.P.A. given by 2nd plaintiff to the 1st is marked as Ex.P12. Passbook of the plaintiff in Indian Overseas Bank account is marked as Ex.P13. Public notice given by the plaintiff on 10.1.2006 informing the public about the subsisting agreement of the plaintiffs is produced as Ex.P14. Copy of the account opening form given by the plaintiffs to the Indian Overseas Bank along with other connected documents are produced as Ex.P15 and copy of the agreement produced at the time of availing the loan by the plaintiffs to the bank is produced as Ex.P16. Copy of the acknowledgment given on loan sanction is marked as Ex.P18. Copy of the letter given to the bank by the 1st plaintiff for cancellation of the bankers cheque is marked as Ex.P19 and statement of loan account is marked as Ex.P20 to show that on 25.4.2012 loan account has been closed. Valuation report is produced as Ex.P21 by the bank as per which the value of the property is fixed as Rs.5,24,000/-.
14 OS.No.1000/2006
14. The defendant No.2 has given evidence as DW.1 and has stated his contentions. He has stated that the defendants intended to comply the sale transaction for Rs.17,50,000/- instead of agreed amount of Rs.32,00,000/- and defendants came to know that plaintiffs have no source of income and therefore, they have refused to give the copy of the D.D. and sensing the fraud the defendants demanded copy of the D.D. in advance for Rs.15,00,000/- each and that they have failed to provide and has stated that the value of the property was around Rs.20,00,000/- as per guidelines value and market value of Rs.32,00,000/- since the property consists of two shops. He has stated that after revision of guidelines value, the value of the suit property as on date is Rs.82,00,000/- and market value is Rs.1,40,00,000/-. He has stated that as he wanted to purchase another residential unit, they wanted the said transaction to be completed within a stipulated period 3 months. In the cross-examination, he has stated that at the time of execution of the agreement, the market value of the property was little more than Rs.32,00,000/- and one tenant had not agreed to vacate the suit property and hence the property was agreed to be sold for lesser than the actual market value. The witness has stated that the entire balance consideration amount was 15 OS.No.1000/2006 required to be paid by D.D. He has admitted that on 5.12.2005, the plaintiffs have informed that draft sale deed is ready and that has been received on 7.12.2005. He has stated that as per the agreement, copy of the draft and D.D. were not sent to him and he has informed the same as per Ex.P3. He has stated that copy of the D.D. was required to be given to them earlier as per the agreement. He has stated that they have asked the plaintiffs to get the sale deed executed by paying balance amount by the letter dated 7.12.2005 and 11.12.2005. The witness has stated that the plaintiffs have even asked for signature of father of the defendants which was not there in the agreement. He has stated that he has not given any notice stating that the plaintiffs are trying to get the sale deed for Rs.17,00,000/- only. He has denied that though the plaintiffs were ready with the D.D. in the Sub-registrar office, he has not gone to the Sub-registrar office for executing the sale deed. He has admitted that he was having responsibility of executing the sale deed on 15.12.2005. He has stated that he has gone to the Sub-registrar office, but the plaintiffs were not there.
15. The defendants have produced agreement of sale alleged to have been given by the plaintiffs to the defendants by signing by mentioning the amount as Rs.17,50,000/- as 16 OS.No.1000/2006 Ex.D1. This document does not bear the signature of the defendants. The letter sent by the defendants to the plaintiffs on 11.12.2005, postal receipt and acknowledgement are marked as Ex.D2 to D4, in which it is mentioned that the draft copies of the sale deed delivered by the plaintiffs is not in accordance with the terms agreed by them and even the copies of the pay orders towards the balance of the sale consideration is also not provided, hence, the same is rejected. Another letter dated 19.12.2005 issued by the defendants to the plaintiffs stating that in spite of the letter dated 7.12.2005 and 11.12.2005, the plaintiffs have not complied and the time fixed for execution of the sale deed is also expired on 15.12.2005 entire due to the fault of the plaintiffs and therefore, the deal is called off is produced along with Postal receipt and acknowledgement as Ex.D5 and D7. Letter written by the defendants to the counsel for the plaintiffs against paper publication is marked as Ex.D8 and acknowledgements are marked as Ex.D9 and D10.
16. On looking to the rival contentions, the agreement entered into between the parties and payment advance consideration of Rs.2,00,000/-, ownership of the suit property is belonging to the defendants and total consideration amount of Rs.32,00,000/- for purchase of the 17 OS.No.1000/2006 property are all not in dispute. It is also not in dispute between the parties that the agreement was entered into on 15.9.2005 and the sale deed was to be executed on or before 15.12.2005 and time was the essence of the contract. In the presence of these admitted facts before the court, only readiness and willingness of the plaintiff to perform their part of contract and the alleged failure of the defendants to execute the sale deed and alleged loss caused to the defendants as contended by them and the entitlement of the plaintiffs or otherwise to get the specific performance are to be decided in this case.
17. As both the parties have admitted that the total consideration amount agreed was Rs.32,00,000/-, Ex.D1 in which only plaintiffs have signed and sale consideration amount is mentioned as Rs.17,50,000/- is of no relevancy. In none of the documents produced by the defendants, it is stated that the plaintiffs are now claiming that the consideration amount agreed is only Rs.17,50,000/- and not Rs.32,00,000/-. Though the defendants have produced their letter sent before the due date i.e., on 11.12.2005 given to the plaintiffs as Ex.D2 and a letter subsequent to the due date i.e., on 19.12.2005 as per Ex.D5, in none of these letters, it is mentioned that the plaintiffs are asking to execute the sale 18 OS.No.1000/2006 deed by showing the consideration amount of Rs.17,50,000/- . Absolutely there is nothing mentioned about this Ex.D1 which is an incomplete document in any of the letters sent by the defendants. Even in the letters of the plaintiffs, nowhere it is stated that they are willing to purchase the property only for Rs.17,50,000/-. Under such circumstances, the contentions of the defendants that the plaintiffs were intending to purchase the property only for Rs.17,50,000/- and they were not ready with the balance consideration amount of Rs.30,00,000/- cannot be accepted. The balance consideration amount as stated by both the parties is Rs.30,00,000/-. In Ex.P1 agreement of sale, it has been clearly mentioned that the balance amount is Rs.30,00,000/- and it is also clearly mentioned that the sale of the suit property shall be finalized and completed within 3 months from the date agreement and time and vacant possession of the suit property except one shop West Side is the essence of the contract. Therefore, as per the agreement, possession of the schedule property except one shop in which there was a tenant, was necessary to be given within 3 months from the date of the agreement.
18. Even the bank Manager P.W.3 has stated that along with the application seeking loan, the plaintiffs have 19 OS.No.1000/2006 produced the copy of the agreement as per which the total consideration amount was Rs.32,00,000/-. According to P.W.3, out of balance consideration amount of Rs.30,00,000/-, bank has sanctioned loan of Rs.15,00,000/- and balance was to be paid by the plaintiffs themselves. P.W.2 has also stated that bank had sanctioned the loan to the tune of Rs.15,00,000/- and to show the same relevant document of the bank are already produced as Ex.P18. P.W.3 has also stated that by taking Rs.50,000/- from the plaintiffs, two bankers cheques for Rs.7,75,000/- each has been taken by the bank for making payment to the vendors at the time of execution of the sale deed. Therefore, Rs.15,50,000/- was kept ready by the bank as it was payable as a loan to the plaintiffs. In entire Ex.P1, it is nowhere mentioned that the plaintiffs should not obtain the loan for purchase of the property. The readiness and willingness of the plaintiffs does not mean that the plaintiffs should always carry the cash in their pocket and show it to the defendants to get the sale deed executed. It is seen that the plaintiffs to show that they have made efforts and they were ready to arrange the amount for purchase of the property and for payment of the balance consideration amount as on the fixed date. In this case, as the sale deed was to be executed within 3 months and the 20 OS.No.1000/2006 agreement is executed on 15.9.2005, by 15.12.2005 the sale deed was required to be executed. Therefore, obtaining the loan by the plaintiffs to an extent of Rs.15,00,000/- from Indian Overseas Bank as seen from the records and also evidence of P.W.3, would show that the plaintiffs had arranged Rs.15,00,000/- by way of loan and the balance amount was to be arranged by the plaintiffs on their own. The defendants cannot anticipate that as the plaintiffs have obtained the loan of Rs.15,00,000/- only and have only obtained two bankers cheques for Rs.7,75,000/- each, they are not ready with balance to be paid at the time of registration of the sale deed.
19. In fact, the plaintiffs have sent a letter to the defendants before final date for execution of the sale deed as per Ex.P2. In this letter, it has been clearly mentioned that they have kept the cash ready to pay the balance consideration and the draft sale deed are also kept ready for inspection. Therefore, on 5.12.2005, itself the plaintiffs have clearly informed the defendants that they are ready with the cash to pay the balance consideration amount and even the draft sale deed is also kept ready and defendants were asked to bring all the original title deeds for their perusal and they were asked to verify the draft sale deed on 9.12.2005. 21 OS.No.1000/2006 Thereafter, on 7.12.2005, the defendants have given reply as per Ex.P3 in which they have stated that the copy of the draft sale deed is not given to them in spite of request and draft deed is to be verified by them and copies of the pay orders or D.D. for the sale consideration is also to be given to them to verify the genuineness of the same and also informed that, bringing father of the defendants for signing the document as a consenting witness was never agreed and they will not bring him for execution of the sale deed. Admittedly, there was no such condition in Ex.P1 agreement to take the signature of father of the defendants as consenting witness. But only because the plaintiffs have asked the defendants to bring their father at the time of registration of the sale deed to sign as consenting witness, it cannot be said that the terms of agreement of sale has been violated. In Ex.P3, the defendants have asked the plaintiffs to provide copies of the pay orders or D.D. On looking to Ex.P1 agreement, absolutely there is no such condition of providing copies of the pay orders prior to execution of the sale deed and to provide draft sale deed for verification as claimed by the defendant in their letter Ex.P3. However, the defendants have given draft sale deed to the defendants as could be seen in Ex.P3 which contains acknowledgement of receipt of the draft sale deed on 22 OS.No.1000/2006 9.12.2005 by the 1st defendant. After receiving this draft sale deed, the defendants have sent a letter to the plaintiffs as per Ex.D2 in which they have stated that the draft copies of the sale deed delivered by the plaintiffs is not in accordance with the terms agreed by them in the sale agreement, hence, the same cannot be accepted. It is also mentioned that the copies of the pay orders towards balance consideration amount is not provided and therefore, same is rejected. As stated above, there is no such condition of providing any copies of the pay orders in Ex.P1 agreement.
20. Moreover, P.W.3, has stated that it is the banking practice that the DDs. from the loan account will be given to the vendors directly at the time of the sale deed. Therefore, giving copy of the pay orders to the defendants prior to the execution of the sale deed is not a condition in the agreement and need not be insisted at all. After verifying the draft sale deed delivered by the plaintiffs, the defendants have stated that it is not in accordance with the terms of the agreement. But, how it is not in accordance with the terms and which conditions have not been followed and which terms are not included in the draft sale deed etc., is not stated in Ex.D2. Even in the evidence of DW.1 and in the written statement of the defendants, it is not stated as to how the draft sale deed 23 OS.No.1000/2006 was not in accordance with the terms agreed between the parties. Even the draft sale deed is not produced before the court. This letter dated 11.12.2005 has been sent to the plaintiffs by registered post on 12.12.2005 and it has been received by the plaintiffs as seen in Ex.D4 may be subsequent to 15.12.2005. Thereafter, subsequent letter dated 19.12.2005 is given in which the defendants have stated that deal is called of due to fault of the plaintiffs.
21. On looking to the entire documents produced by the defendants and also the plaintiffs, there is nothing to show that the plaintiffs have violated the terms and conditions of Ex.P1 agreement of sale entered into between the parties. Balance of Rs.30,00,000/- was to be paid at the time of execution of the sale deed. There was time for execution of the sale deed up to 3 months which expires on 15.12.2005. Before expire of the said dated, the plaintiffs have sent letter Ex.P2 informing that they are ready with the cash. Though the defendants have contended that entire amount was to be paid through D.D., there is no such terms provided in Ex.P1. In the written arguments submitted by the learned counsel for the defendants, it has been stated that this contention that the amount was agreed to be paid by cash is surprising, as the Income Tax Act provides that any 24 OS.No.1000/2006 payment beyond Rs.20,000/- should be by cheque or D.D. Merely stating in the letter Ex.P2 that the plaintiffs are ready with the cash does not mean that they will pay the amount only by cash. If the defendants are not satisfied for payment of the amount by cash or cheque, the defendants in their letter sent as per Ex.P3 would have asked the plaintiffs to give the entire balance consideration amount by D.D. Anyhow, the plaintiffs had obtained the loan from the bank and had kept two D.Ds. for Rs.7,75,000/- each totally for Rs.15,50,000/-, the balance of Rs.14,50,000/- would also have been paid by the plaintiffs. Only on the ground that the copies of the DDs. are not furnished earlier, deal cannot be called off.
22. The defendants cannot contend that the plaintiffs were not ready and willing to perform their part of the contract or that the plaintiffs had no capacity to purchase the property. There was correspondence between the plaintiffs and defendants and finally the suit is also filed without much delay on 1.2.2006. As per Ex.P1 agreement, sale deed was to be executed in 3 months i.e., by 15.12.2005 and the plaintiffs have sent a letter expressing readiness and willingness to the defendants on 5.12.2005 itself, for which the defendants have given reply seeking clarification on 7.12.2005 and then 25 OS.No.1000/2006 by 9.12.2005 the copy of the draft sale deed is also furnished to the defendants by the plaintiffs. Though the defendants have stated in their letter dated 11.12.2005 which is sent by post and that they are not agreeable to the draft sale deed and it is not in terms of the agreement, how it is not in terms of the agreement is not stated in this letter. Though the defendants have asked for copies of the pay orders, that is not in terms of the agreement of sale. The plaintiffs have stated that on 15.12.2005 they were ready with the pay orders for Rs.15,50,000/- and were ready to pay the remaining amount by cash or bearers cheque. Though the defendants have stated in their evidence and also in the written statement that entire amount was to be paid by D.D., the agreement of sale Ex.P1 does not say that the amount is to be paid by D.D. only. If the defendants have insisted for payment of the entire amount by cheque, the plaintiffs would have given the chque to the defendants. In Ex.P1 it is only mentioned that the balance of Rs.30,00,000/- is to be paid by the purchaser to the Vendors at the time of execution and registration of the sale deed. Therefore, unless the defendants participated in execution and registration of the sale deed, they would not be knowing as to how the amount will be paid by the plaintiffs to the defendants and unless the defendants 26 OS.No.1000/2006 state that in particular mode the amount is to be paid, the plaintiffs would not be knowing the mode of payment. However, the fact remains that the balance of Rs.30,00,000/- is to be paid at the time of execution and registration of sale deed, for which the defendants should go to the Sub-registrar office for registration. In this case, except sending the reply to the letter of the plaintiffs, the defendants have not made any efforts to execute the sale deed and to receive the balance consideration amount. Even in the evidence, the defendants have only stated that the plaintiffs were not ready to abide by the terms of the agreement. Which all the agreed terms have been violated by the plaintiffs is not stated.
23. On looking to the entire materials placed in this case and the evidence of the parties, the plaintiffs have sufficiently proved their readiness and willingness to perform their part of the contract. The contentions of the defendants that the plaintiffs were intending to purchase the property for Rs.17,50,000/- and were only prepared to pay Rs.17,50,000/- to the property etc., are without any basis. If the defendants apprehended that the plaintiffs will pay only Rs.17,50,000/- to the property, the same would have been intimated by the defendants to the plaintiffs and defendants would have asked for clarity. Without seeking clarification on 27 OS.No.1000/2006 any point, the defendants only on assumptions, appears to have not participated in execution of the sale deed on 15.12.2005. The plaintiffs have stated that they have waited in the Sub-registrar office along with Manager of Indian Overseas Bank who was ready with the bankers cheques for Rs.15,50,000/-. Even P.W.3 has stated about the procedure that has been followed by the bank in giving the D.D. directly to the vendors. The defendants in the entire written statement and in the reply to the notice have not stated anything about their presence in the Sub-registrar office on 15.12.2005. However, for the first time in cross-examination of DW.1, it is stated that the defendants had gone to the Sub- Registrar office on 15.12.2005, they have waited there, but the plaintiffs have not come. This contention was not taken in the written statement or in the reply given to the notice. Therefore, this statement of DW.1 in the cross-examination for the first time that they had been to the Sub-registrar office to execute the sale deed cannot be accepted. On looking to the entire materials, the readiness and willingness of the plaintiffs to perform their part of contract is sufficiently established. The defendants have failed to prove that due to the failure of the plaintiffs, the sale deed is not executed and that the plaintiffs have violated the terms and conditions and 28 OS.No.1000/2006 are liable to pay Rs.1,00,000/- as damages to the defendants. Accordingly, issue No.1 is answered in the affirmative and issue No.2 is answered in the negative.
24. Issue No.3 :- As discussed on issue No.1 and 2, the plaintiffs were ready and willing to perform their part of contract. The execution of the agreement by the defendants in favour of the plaintiffs is not in dispute. The suit property was to be purchased for Rs.32,00,000/- by the plaintiffs and Rs.2,00,000/- has been paid as advance consideration amount and balance of Rs.30,00,000/- was to be paid at the time of execution of the sale deed. The defendants have not given proper reasons for not executing the sale deed though the plaintiffs were ready and willing to get the sale deed executed and to pay the balance consideration amount. The agreement is dated 15.9.2005 and for non-execution of the sale deed, the specific performance suit is filed in 2006 and for whatever reasons even after 10 years, the matter is not finally decided. DW.1 in his cross-examination has stated that at the time of execution of the agreement, the market value of the property was little higher than Rs.32,00,000/- and they have agreed to sell the property to little lesser price as one of the tenant had not vacated the premises. Therefore, it is clear that for the market value of the property prevailing 29 OS.No.1000/2006 at the time of execution of the agreement, the property was agreed to be sold. The defendants have not executed the sale deed in spite of request and letters sent by plaintiffs in time.
25. As the agreement is in respect of the immovable property, the plaintiffs would be entitled for specific performance. As per section 20(2) of Specific Relief Act, if the terms of the contract and the conduct of the parties at the time of entering into the contract, it gives the plaintiffs an unfair advantage over the defendants or the performance of the contract would involve some hardship on the defendant which he did not foresee or where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance, then the court can refuse the specific performance. In the present case, the value of the suit property as on the date of the agreement was nearer to the market price of the said property. Therefore, consideration amount mentioned in the agreement was adequate and there is no lapses on the part of the plaintiffs in performing their part of the contract. The contract cannot be said to be voidable and it is also cannot be said to be putting the plaintiffs to an unfair advantage and is also not inequitable. Therefore, the plaintiffs would be entitled for 30 OS.No.1000/2006 specific performance. However, as the prices of the property has increased many fold during these 10-11 years and advance consideration amount paid was only Rs.2,00,000/- and the balance payable is Rs.30,00,000/- as per the agreement, the defendants would suffer loss if they have to execute the sale deed by receiving Rs.30,00,000/-only. To cover up the loss suffered by the defendants, in the interest of justice, it is proper to direct the plaintiffs to pay the balance consideration amount along with interest. Even in the cross-examination, it has been suggested and DW.1 has stated that even if the balance amount is paid with bank interest, he is not ready to execute the sale deed. Even in the written arguments submitted by the plaintiffs' counsel, it has been stated that the plaintiffs are ready and wiling to pay the bank interest on the amount that is required to be paid at the time of execution of the sale deed.
26. The decision of the Hon'ble Supreme Court reported in (2013) 8 SCC 131 - Satya Jain Vs. Anis Ahmed Rushdie, the Hon'ble Supreme Court has held in para-40 that:-
"The discretion to direct the specific performance of an agreement and that too after elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and acceptable principles. The parameters for exercise of discretion vested by Section 20 31 OS.No.1000/2006 of the Specific Relief Act, 1963 cannot be entrapped within any precise expression of language and the contours thereof will always depend on the facts and circumstances of each case. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case, which features the experiences judicial mind can perceive without any real difficulty. It must however be emphasized that efflux of time and escalation of price of property, by itself, cannot be a valid ground to deny the relief of specific performance".
In another decision in (2002) 8 SCC 146 - Nirmala Anand Vs. Advent Corporation Pvt. Ltd., in para-6, it is held that :-
"It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during 32 OS.No.1000/2006 the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be cause to the defendant by directing specific performance."
On considering these decisions, and on considering the present facts in which the defaulting party is defendants it is proper to direct payment of balance with interest. Defendants though admitted the agreement, without any reasons have not come forward to execute the sale deed in time. The plaintiffs were ready and willing to perform their part of the contract. No doubt the prince of the property has increased many fold by passing of time. As the defaulting party is the defendants and the plaintiffs were ready to perform their part of contract, there is no fault on the part of the plaintiffs. Therefore, the specific performance cannot be denied only on the ground that consideration amount paid is only Rs.2,00,000/- and balance payable is Rs.30,00,000/-. The documents produced by the plaintiffs show that they have obtained the loan from the bank and they have even paid interest of considerable amount for no fault of theirs. By considering all these aspects and also considering the interest of the defendants, it would be proper to grant the relief of specific performance by directing the plaintiffs to pay 33 OS.No.1000/2006 the balance consideration amount along with interest at the rate of 12% p.a. from 15.12.2005 till this date and to direct the defendants to execute the sale deed in favour of the plaintiffs by receiving the balance consideration amount with interest from 15.12.2005 till this date. Accordingly, the plaintiffs are entitled for specific performance. Therefore, issue No.3 is answered in the affirmative.
27. Issue No.4:- For the discussion made on the above issues, the suit is to be decreed. Accordingly, following order is passed :-
ORDER The suit of the plaintiff is decreed with costs.
The defendants are directed to execute the sale deed in respect of the suit property in terms of Ex.P1 agreement of sale within one month, by receiving the balance consideration amount of Rs.30,00,000/- with interest at the rate of 12% p.a. from 15.12.2005 till this date.
On failure of the defendants to execute the sale deed, the plaintiffs are entitled to get the sale deed executed through the process of the court.
Draw decree accordingly.
(Dictated to the judgment writer, transcribed by him, corrected and then pronounced by me in the open court, on this the 9th day of January, 2017).
(Ravindra Hegde), XVII Addl. City Civil & Sessions Judge, Bengaluru.34 OS.No.1000/2006
ANNEXURE List of witnesses examined for plaintiffs:
P.W.1 G.Muralidhar P.W.2 Nagaraj Guptha A. P.W.3 M.B.Dwarakanath
List of documents exhibited for plaintiffs:
Ex.P1 Agreement of sale Ex.P1(a) Signature Ex.P2 & 3 Reply letters Ex.P4 Legal notice Ex.P5 Reply Ex.P6 & 7 Two Telegrams Ex.P8 & 9 Two receipts Ex.P10 & 11 Photographs and C.D. Ex.P12 G.P.A. Ex.P13 Bank Pass book Ex.P14 Paper publication Ex.P15 Loan application Ex.P16 Copy of agreement of sale Ex.P17 Application Ex.P18 Loan sanction letter Ex.P19 Loan cancellation letter Ex.P20 Copy of loan account statement Ex.P21 Valuation report
List of witnesses examined for defendants:
DW.1 S.R.Bhaskar List of documents exhibited for defendants:
Ex.D1 Agreement of sale
Ex.D2 Letter dtd.11.12.2005
35 OS.No.1000/2006
Ex.D3 Postal receipt
Ex.D4 Acknowledgement
Ex.D5 Letter dated 19.12.2005
Ex.D6 Postal receipt
Ex.D7 Acknowledgement
Ex.D8 Reply
Ex.D9 & 10 Postal acknowledgements.
XVII Addl. City Civil & Sessions
Judge, Bengaluru.
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