Karnataka High Court
Abdul Sattar Since Deceased By Lrs Azeem ... vs N. Balakrishna on 16 January, 2020
Bench: B.V.Nagarathna, Jyoti Mulimani
-: 1 :-
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2020
PRESENT
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
R.F.A. No.2365/2019 (DEC-POS)
BETWEEN:
SRI ABDUL SATTAR
SINCE DECEASED BY LRs.
1. SMT. AZEEM UNNISA
W/O. LATE AKRAM PASHA,
AGED ABOUT 43 YEARS,
2. SRI UMAR FAROOQ
S/O. LATE AKRAM PASHA,
AGED ABOUT 23 YEARS,
3. SMT. NOURIEN FATHIMA
D/O. LATE AKRAM PASHA,
AGED ABOUT 18 YEARS,
4. SRI IMDAD PASHA
S/O. LATE ABDUL SATTAR,
AGED ABOUT 47 YEARS,
ALL ARE RESIDING AT NO.116,
MAHESHWARAMMA TEMPLE STREET,
YELAHANKA OLD TOWN,
BANGALORE - 560 064. ... APPELLANTS
(BY SRI M. SHIVAPRAKASH, ADVOCATE)
AND:
-: 2 :-
1. SRI N. BALAKRISHNA
S/O. NARASARAJU,
AGED: MAJOR,
PROPRIETOR OF
M/S. PRAKRUTI NEST, NO.11/34,
PALACE CROSS ROAD,
BANGALORE - 560 020.
2. ANIL KAPUR
S/O. LATE BIJAYAKUMAR KAPUR,
AGED ABOUT 51 YEARS,
R/AT NO.1178, "ANITA",
12TH 'B' MAIN HAL II STAGE,
BANGALORE - 560 008. ... RESPONDENTS
(BY SRI RAJA R., ADVOCATE A/W SRI P. NARAYANA BHAT,
ADVOCATE FOR C/R-1 AND R-2)
THIS RFA IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 15.10.2019
PASSED ON I.A.NO.11 IN O.S.NO.286/2017 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI,
ALLOWING THE I.A.NO.11 FILED UNDER ORDER VII RULE 11(a)
OF CPC., FOR REJECTION OF PLAINT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
NAGARATHNA J., DELIVERED THE FOLLOWING:-
JUDGMENT
Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. Appellants are the legal representatives of Sri Abdul Sattar, since deceased. Abdul Sattar was the -: 3 :- original plaintiff who filed O.S.No.286/2017. He sought for the following reliefs in the suit:
"Wherefore, the Plaintiff most respectfully prays that this Hon'ble Court be pleased to pass the judgment and decree against the Defendants:
a) Declaring that the sale deed dated: 7/6/2013, vide Document No.DNH-1-01779/2013-14, BOOK-I, stored in CD No.DNHD328, and rectification deed dated: 18/3/2015 vide Document No.DNH-1-11268/2014-15, Book-I, stored in CD No.DNHD534 both registered in the office the Sub-Registrar, Devanahalli, are illegal and null and void on the default of defendants by forfeiting the amount paid by the defendants as a liquidated damages with respect to the suit schedule property.
b) Consequently, direct the defendants to deliver the vacant possession of the suit schedule property to the plaintiff on the basis of the alleged sale deed dated: 7/6/2013 and rectification deed dated: 18/3/2015 to the plaintiff.
c) pass an order of consequential permanent injunction restraining defendants from forming layout, alienating any portion of the suit schedule property, encumbering or creating 3rd party interest over the suit schedule property.-: 4 :-
d) Award the cost of this suit and pass such other relief/s as deems fit in the facts and circumstances of the case, in the interest of justice and equity.
The aforesaid reliefs were sought in respect of the following suit schedule property:
"SCHEDULE All that piece and parcel of the residentially converted property (vide conversation Order No.ALN (De-Ku) SR 39/2011-12 dated: 14/9/2012 by the Deputy Commissioner, Bengaluru Rural District, with respect to the land bearing Sy.No.59, Old portion of Sy.No.42, measuring 4 acres, situated at Indarsanahalli Village, Kundana Hobli, Devanahalli Taluk, Bengaluru Rural District and bounded on:
East by : Sy.No.42
West by : Sy.No.56 and Sy.No.61
North by : Sy.No.56 and Sy.No.60
South by : Road"
3. In response to the suit summons and Court notices, respondents/defendants appeared and filed their written statement and also an application under Order VII Rule 11(1) of the Code of Civil Procedure, 1908 (CPC). By the impugned order dated 15/10/2019, passed by the Senior Civil Judge and JMFC at Devanahalli, the plaint has -: 5 :- been rejected. Being aggrieved, the plaintiffs have preferred this appeal.
4. We have heard Sri M. Shivaprakash, learned counsel for the appellants, learned counsel for the respondents, Sri Raja R. along with Sri P.Narayana Bhat and perused the material on record.
5. Learned counsel for the appellants contended that initially, there was a sale deed executed between the original plaintiff and the respondents/defendants on 07/06/2013. An extent of four acres of land was sold for a sum of Rs.6.00 crore. Subsequently, on 18/03/2015, a rectification deed was made and the sale consideration was reduced from Rs.6.00 crore to Rs.5.00 crore. That a sum of Rs.4.00 crore was paid by the defendants by way of demand drafts and in respect of Rs.1.00 crore being the balance consideration two cheques dated 30/12/2015 and 30/03/2016 were issued. That those cheques were not presented by the appellants since the respondents stated that they had to wait and be intimated by respondents before presenting the cheques. However, respondents failed to pay the balance consideration of Rs.1.00 crore -: 6 :- and hence, in the absence of there being complete payment of consideration, the original plaintiff sought the aforesaid reliefs. That there was a cause of action for seeking the aforesaid reliefs, the same being on account of the original plaintiff, since deceased and now represented by his legal representatives, not receiving the full consideration of Rs.5.00 crores on the suit schedule property. Therefore, the prayers seeking cancellation of the sale deed dated 07/06/2013 and rectification deed dated 18/3/2015 and consequentially, a direction for handing over possession of the suit schedule property were sought and a further relief of permanent injunction was sought against the respondents/defendants. That the trial Court was not right in allowing the application (I.A.No.11) filed by the defendants/respondents herein under Order VII Rule 11(a) of the CPC by holding that the plaint did not disclose any cause of action. He further submitted that there is also an observation that the plaint was barred by law. The judgment and decree of the trial Court rejecting the plaint is erroneous in law and against the judgments of the Hon'ble Supreme Court and this Court. He therefore, contended that the impugned order -: 7 :- and decree may be set aside and the suit may be restored on the phase of the trial Court by remanding the matter to the said Court so as to dispose of in accordance with law.
6. Per contra, learned counsel for the respondents drew our attention to various paragraphs of the plaint and the fact that the rectification deed dated 18/3/2015 clearly recorded that there had been payment of full consideration of Rs.5.00 crore to the plaintiffs. That the said payment was made by way of demand drafts and also by way of two cheques, each for Rs.50.00 lakh being paid. For reasons best known to the plaintiffs, the cheques were not presented. This is not a case of dishonouring of the cheques, but due to non-presentation of the cheques by the plaintiffs in time, there was no actual payment under the said cheques. That the plaintiffs have to be blamed for such a state of affairs. That there was no cause of action for the plaintiffs to seek the aforesaid reliefs. The trial Court rightly rejected the plaint. That the defendants/ respondents herein are ready to pay Rs.1.00 crore to the plaintiffs and hence, the impugned order and decree would not call for any interference as the sale deed dated -: 8 :- 07/06/2013 and the rectification deed dated 18/03/2015 clearly state that there is a payment of full consideration of Rs.5.00 crore by the defendants/respondents herein to the appellants' counsel. He submitted that there is no merit in the appeal and the same may be dismissed.
7. By way of reply, learned counsel for the appellants/plaintiffs submitted that what has been stated in the sale deed dated 07/06/2013 and rectification deed dated 18/03/2015 vis-à-vis the payment of full consideration of Rs.5.00 crore by the respondents to the appellants herein is not foolproof. He submitted that the recitals and contents of the terms and conditions in the aforesaid documents could be proved otherwise having regard to Section 91 read with Section 92 of the Indian Evidence Act, 1872. The plaintiffs have the right to let-in evidence so as to substantiate their contention that there has been payment of full consideration amount under the sale deed, in the circumstances, they are entitled to seek the aforesaid reliefs. He therefore, contended that there is no merit in the submission of learned counsel for the respondents.-: 9 :-
8. Having heard learned counsel for the respective parties and on perusal of the material on record and particularly the impugned order, the following points would arise for our consideration:
(i) Whether the trial Court was justified in rejecting the plaint on the premise that the plaint did not disclose a cause of action by invoking Order VII Rule 11 of the CPC?
(ii) What order?
9. The detailed narration of facts and circumstances would not call for reiteration.
10. We have read the plaint closely. On a meaningful reading of the plaint, we note that the grievance of the plaintiffs is that there has been no payment of full consideration of Rs.5.00 crore as agreed to by the parties in respect of conveyance of the suit schedule property by the original plaintiff to the respondents herein. It is also an admitted fact that there was a sale deed registered on 07/06/2013 wherein the original sale consideration agreed to was Rs.6.00 crore in respect of the schedule property. Subsequently, by a rectification deed dated 18/03/2015 which was also -: 10 :- registered in the jurisdictional Sub-Registrar's office, the sale consideration was reduced to Rs.5.00 crore from Rs.6.00 crore. The grievance of the appellants/plaintiffs is that out of Rs.5.00 crore, a sum of Rs.4.00 crore only had been received by way of demand drafts from the respondents and a sum of Rs.1.00 crore was sought to be paid under two cheques. In fact, two cheques for a sum of Rs.50.00 lakh each were handed over by the respondents and the same is also a recital in the recitification deed. The receipt of the said cheques is also admitted by the plaintiffs, but the crux of the matter is as to whether there has been actual payment of Rs.1.00 crore in toto under the said cheques. In this context, the contention of appellants' counsel is that though two cheques were handed over by the respondents. They insisted not to present the said cheques and consequently, the validity of the cheques expired and on account of non-payment of the full consideration amount, the original plaintiff was constrained to file the suit seeking the aforesaid remedies.
11. As opposed to the aforesaid contentions, respondents' counsel contended that the recital of terms -: 11 :- and conditions in the rectification deed dated 18/03/2015 categorically states that a sum of Rs.5.00 crore had been paid by the respondents to the plaintiffs through demand drafts and two cheques and the appellants did not present the said cheques. The respondents cannot be blamed for the same. He submitted that the respondents are ready to pay Rs.1.00 crore corresponding to the value of the amount stated in the cheques being Rs.50.00 lakh each to the appellants/plaintiffs. That the plaint was rightly rejected by the trial Court as it did not disclose any cause of action.
12. In light of the said facts and contentions, we have examined the contents of the plaint and particularly paragraph No.11 which discloses the cause of action for filing of the suit. What reliefs the plaintiffs could seek in the suit is left to the choice of the plaintiffs. If ultimately the plaintiffs are not entitled to the said reliefs, it is a matter to be considered and the trial Court would have to assign reasons as to why the plaintiffs are not entitled to the said reliefs, but the question that now arises is, whether, the plaint in the instant case could have been -: 12 :- rejected. We find that having regard to the averments made in the plaint and the fact that admittedly a sum of Rs.1.00 crore has not actually been paid by the respondents to the appellants/plaintiffs, there was a cause of action for the appellants/plaintiffs to maintain the suit, but the trial Court has proceeded to discuss the law on the subject with particular reference to Sections 54 and 55 of the Transfer of Property Act, 1882 and Section 25 of the Indian Contract Act, 1872 in light of what has been stated in the plaint and the trial Court has concluded that it was not open for the plaintiff/vendor to sue for cancellation of the deed and the only remedy was to seek recovery of the consideration. We reiterate that whether, ultimately appropriate reliefs have been sought for by the plaintiffs or not would be considered only after recording of evidence i.e., after a full-fledged trial. Merely because appropriate relief had not been sought, the plaint could not have been rejected by invoking Order VII Rule 11(a) of CPC. On a close reading of the plaint, we find, it discloses a cause of action and it is for the plaintiffs to let-in evidence in order to substantiate his claim for the aforesaid reliefs and correspondingly it is for the respondents to let-in contra- -: 13 :- evidence to contend that the plaintiffs are not entitled to the relief sought for in the suit. But the conclusion to be arrived at in such a case is only after trial. Instead, the trial Court has, by rejecting the plaint, frustrated the attempt of the plaintiffs to seek a remedy in respect of the sale deed dated 07/06/2013 and rectification deed dated 18/03/2015 as it is the contention of the plaintiffs that they have not received the full consideration in respect of conveyance of the suit schedule property. Whether, the plaintiffs seek cancellation of the sale deed and possession and other consequential reliefs or only recovery of the sale consideration is a matter which is left to the option of the plaintiffs. The trial Court cannot substitute the reliefs that the plaintiffs have sought in the plaint and thereby conclude that in the absence of the plaintiffs seeking a particular relief no cause of action is made out. The same is an erroneous approach, because even according to the trial Court, the plaintiffs had a case for seeking recovery of the balance consideration. If that was so, the plaint could not have been rejected on the ground that there was no cause of action to file the suit.
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13. Further, before this Court, learned counsel for the respondents has submitted that on account of two cheques, for a total sum of Rs.1.00 crore, not having been encashed by the plaintiffs, the respondents are willing to pay the aforesaid sum. It is noted that the same is a reiteration of what has been stated in the written statement by the respondents/defendants in the suit and also in the application filed under Order VII Rule 11(a) of the CPC. The averments of the respondents/defendants in the suit is also a clear indication of the fact that the respondents/defendants in the suit would have made good the balance consideration by paying the same to the appellants/plaintiffs. In the above context, the trial Court could have considered referring the matter for alternative dispute resolution either through Mediation or before the Lok Adalat. Instead, the trial Court has simply rejected the plaint and frustrated that avenues for settlement of the aforesaid case. For the aforesaid reasons, we set aside the order and decree of the trial Court. The appeal is allowed and disposed by remanding the matter to the concerned trial Court by restoring O.S.No.286/2017 on the file of the said Court.
-: 15 :-
14. Since the parties are represented by their respective counsel, they are directed to appear before the said Court on 23/03/2020 without expecting any separate notices from the said Court. If the respondents are willing to make good the balance sale consideration by paying the same either by demand draft or through Real- Time Gross Settlement (RTGS)/National Electronic Funds Transfer (NEFT), they are at liberty to make the said payment and the plaintiffs are at liberty to receive the said amount. In other words, the parties are at liberty to settle in accordance with the terms and conditions to be arrived at by them and in accordance with law.
15. Respondents are also at liberty to deposit the balance consideration of Rs.1.00 crore before the concerned trial Court on or before 23/03/2020 or as stipulated by the trial Court.
16. In view of remand of the matter to the trial Court, the Registry is directed to refund the entire Court fee paid to appellant No.4/Imdad Pasha forthwith as per -: 16 :- Section 64(1) of the Karnataka Court Fees and Suits Valuation Act, 1958.
In view of disposal of the appeal, all pending applications stand dismissed.
Sd/-
JUDGE Sd/-
JUDGE S*