Bangalore District Court
Sri.Jayantilal B.Chowhan vs Sri.N.Rajarathnam on 11 March, 2015
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.28]
Present: SRI.T.VENKATESH NAIK, B.A.L, LL.B.,
XIV ADDL. CITY CIVIL JUDGE.
Dated this the 11th day of March, 2015.
O.S.No.9519/1997
Plaintiff/s : Sri.Jayantilal B.Chowhan,
aged about 41 years,
son of Bhoormal Chowhan,
Vardhaman Pharma,
Distributors Pvt. Ltd., No.5,
Gandhi Bazaar, Basavanagudi,
Bengaluru-560004.
(By Sri.P.B.Raju, Advocate)
- Vs -
Defendant/s : Sri.N.Rajarathnam,
aged about 48 years,
son of late Gurvaiah Setty,
No.16, Kabadi Revanna Setty Road,
Avenue Road cross, Bengaluru-2
Also at :
Proprietor, Swathi Complex, No.12,
Devasandra, K.R.Puram,
Bengaluru-560036.
(By Sri.K.P.S. Advocate)
Date of institution of the suit: 19-12-1997
2 O.S.No.9519/1997
Nature of the suit[suit on Money suit
pronote, suit for declaration and
possession, suit for injunction]
Date of the commencement of 13-03-2001
recording of the evidence:
Date on which the Judgment 11-03-2015
was pronounced:
Year/s Month/s Day/s
Total Duration: 17 02 22
JUDGMENT
This is a suit filed by the plaintiff against the defendant for recovery of a sum of Rs.4,47,200/- along with cost and interest at the rate of 24% P.A. from the date of suit till its complete realisation.
2. The brief facts of the plaintiff's case are hereunder:-
On 13-10-1997 the defendant offered to sell his property bearing premises No.16, Sanjeevappa Lane, Kabadi Revanna Setty Road, Corporation Division No.41, Avenue Road Cross, Bengaluru-2 in favour of the plaintiff for Rs.11,00,000/-. The plaintiff also agreed to purchase the property of defendant. Thus on 13-10-1997 the defendant executed agreement of sale in favour of the plaintiff and the defendant received a sum of Rs.4,30,000/- as advance sale 3 O.S.No.9519/1997 consideration and remaining sale consideration agreed to be paid within 60 to 90 days. Further the defendant agreed to execute the sale deed on receipt of balance sale consideration. In part performance of agreement the defendant parted with original title deeds in respect of property in favour of the plaintiff. On the same day i.e., on 13-10-1997 the defendant executed a supplement agreement stating that, if the defendant failed to vacate the tenants from his property and clear the property tax, he agreed to refund advance sale consideration with interest within 2 months from the date of agreement. According to the plaintiff, the defendant neither cleared property tax nor vacated the tenants from his house. Further, the defendants failed to execute sale deed and also failed to refund the advance sale consideration. Thus on 12-12-1997 the plaintiff got issued telegraphic notice calling upon the defendants to pay advance sale consideration with interest. Inspite of service of said notice the defendant failed to pay the amount. According to the plaintiff, the defendant is liable to pay a sum of Rs.4,30,000/- towards advance sale consideration and Rs.17,200/- towards interest. In all, the defendant is liable to pay the sum of Rs.4,47,200/-. Hence, this suit.4 O.S.No.9519/1997
3. After the institution of the suit, the suit summons was issued to the defendant, he appeared through his counsel and has filed his detailed written statement, contending that, the suit of the plaintiff is not at all maintainable in law or on facts. All the averments made in the plaint is categorically denied by the defendant. The fact that the defendant is the owner of property No.16, Sanjeevappa Lane is admitted, but the defendant offered to sell his property for a sum of Rs.11,00,000/-, he executed agreement of sale for a sum of Rs.11,00,000/- and received Rs.4,30,000/- from plaintiff as advance sale consideration and on the same day, the defendant executed supplemental deed agreeing to refund advance amount to plaintiff in case, he failed to vacate the tenants and clear the property tax, he is categorically denied by the defendant.
4. According to the defendant, during 1994 the plaintiff had borrowed the loan from State Bank of Mysore and the defendant stood as guarantor to the loan transaction of plaintiff. Thus defendant offered his property for security and he had deposited his title deeds under equitable mortgage with the State Bank of Mysore. Later the plaintiff furnished collateral security to the State Bank of Mysore and received original document of title from the bank. In 5 O.S.No.9519/1997 this regard, on several occasion the defendant approached the plaintiff, but the plaintiff had evaded to return the documents. Under these circumstance the original title documents of defendant property is remained in the hands of plaintiff. According to the defendant, the plaintiff has committed breach of trust. Therefore, the plaintiff is not entitled for any relief. On all these ground the defendant prayed to dismiss the suit.
5. On the basis of the above pleadings, the following issues have been framed :
1. Whether the plaintiff proves that the defendant agreed to sell his property at No.16, Sanjeevappa Lane for 11 lakhs and executed agreement of sale dated 13-10-1997 by receiving advance of Rs.4,30,000/-?
2. Whether the plaintiff proves that he has entered into separate supplemental agreement that the original agreement dated 13-10-1997 would stand automatically cancelled provided that the entire advance amount for a sum of Rs.4,30,000/- is refunded within two months?
3. Whether the plaintiff is entitled for suit claim?
4. What order?6 O.S.No.9519/1997
6. To prove the case of the plaintiff, the plaintiff himself got examined on oath as P.W.1, he got examined two more witness as P.W.2 and P.W.3. In support of his oral evidence he relied upon in all 10 documents as per Ex.P-1 to Ex.P-10.
7. To rebut the claim of plaintiff, the defendant himself examined on oath as D.W.1. The defendant examined one Sri.K.L.Srinivas as D.W.2. In support of the defence of the defendant, he relied upon in all 14 documents as per Ex.D-1 to Ex.D-14 and closed his side.
8. Heard the arguments of learned counsel for plaintiff and defendant. Perused the material on record.
9. My findings to the above issues in the following manner :
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : Partly in the Affirmative
Issue No.4 : As per final order for the following :
REASONS
10. ISSUE No.1 AND 2 : Both these issues are interconnected with each other and they are based on same set of facts and 7 O.S.No.9519/1997 evidence. Hence to avoid repetition of facts, I take both points together for consideration.
11. Admittedly, the plaintiff has filed the instant suit for recovery of money for a sum of Rs.4,30,000/- towards amount paid under the agreement of sale dated 13-10-1997. On the other hand, the defendant has disputed the agreement of sale, its contents and passing of consideration.
12. In order to establish the contention of plaintiff, the plaintiff himself examined on oath as P.W.1. In his chief examination he has reiterated the averments made in the plaint. In support of his oral evidence, he relied upon in all 10 documents. Ex.P-1 is the agreement of sale dated 13-10-1997 executed by defendant in favour of plaintiff. Ex.P-2 is the copy of agreement dated 13-10- 1997 executed by defendant in favour of plaintiff. Ex.P-3 is the telegraphic legal notice dated 12-12-1997. Ex.P-4 is the returned RPAD cover. Ex.P-5 is the postal acknowledgement. Ex.P-6 is the extract of daily list of State Bank of Mysore. Ex.P-7 is the sale deed dated 17-10-1980. Ex.P-8 is the plan. Ex.P-9 and Ex.P-10 are the 8 O.S.No.9519/1997 tax paid receipts. P.W.1 has undergone intensive cross-examination by the counsel for defendant.
13. In support of the plaintiff's claim, the plaintiff examined one Sri.Lakshman Kumar the attesting witness to Ex.P-1 as P.W.2. P.W.2 in his chief-examination deposed to the fact that in his presence, the defendant has executed Ex.P-1 and Ex.P-2 in favour of plaintiff and under Ex.P-1 defendant received a sum of Rs.4,30,000/- as advance sale consideration. P.W.2 has undergone intensive cross-examination by the counsel for defendant.
14. In support of the plaintiff's claim, the plaintiff examined one Sri.Suresh Babu, Manager of State Bank of Mysore as P.W.3. P.W.3 in his evidence deposed to the fact that, the defendant deposited his original title deeds with the State Bank of Mysore in respect of the loan transaction of plaintiff. On 16-09-1995 the defendant was handed over all original title deeds in respect of his property. P.W.3 has undergone intensive cross-examination by the counsel for defendant.
15. To rebut the claim of plaintiff, the defendant himself examined on oath as D.W.1. D.W.1 in his chief-examination has 9 O.S.No.9519/1997 reiterated the averments made in the written statement. In support of his oral evidence he relied upon in all 14 documents as per Ex.D-1 to Ex.D-14. Ex.D-1 is the on demand promissory note dated 18-03- 1993 executed by defendant in favour of the plaintiff. Wherein the defendant had borrowed a sum of Rs.50,000/- and delivered his original document in favour of the plaintiff under Ex.D-1 the defendant agreed to pay a sum of Rs.50,000/- on or before 30-03- 1993. Ex.D-2 is the another on demand promissory note dated 20- 03-1993 executed by the defendant in favour of the plaintiff, wherein the defendant borrowed a sum of Rs.50,000/- from the plaintiff. Ex.D-3 is the notice issued by the defendant dated 16-03- 1994 to the State Bank of Mysore calling upon the bank to hand over his original title documents deposited on 01-06-1992. Ex.D-4 is the letter of plaintiff dated 16-04-1994 issued to State Bank of Mysore, wherein the plaintiff requested the bank to extend 8 or 9 months to arrange alternative security. Further the plaintiff requested the bank not to hand over the original documents to the defendant without plaintiff's written letter. This request was made in view of plaintiff company interest, because the defendant has to pay some money to the plaintiff. Ex.D-5 is the letter of State Bank 10 O.S.No.9519/1997 of Mysore issued to the defendant dated 13-04-1994 wherein the bank has rejected request of defendant. Ex.D-6 is the death certificate of defendant's wife by name Smt.Vijayalakshmi. Ex.D-7 and Ex.D-8 are the invoice of Mohan Mansa and Meenakshi Fabrics. Ex.D-9 is the account showing supply of goods issued by Sri.Balaji Vastralayam. Ex.D-10 is the bank pass book of the defendant. Ex.D-11 is the certified copy of the lease agreement dated 30-10- 1996 executed by defendant to K.Neelakantan and received a sum of Rs.2,00,000/-. Ex.D-12 is the share certificate dated 31-12-1996 issued by Janapriya Credit Co-operative Society Limited. Ex.D-13 and Ex.D-14 are the receipt and identity card issued by Janapriya Credit Co-operative Society Limited. D.W.1 has undergone intensive cross-examination by the counsel for plaintiff.
16. In support of the defendant's contention he got examined one Sri.K.L.Srinivas as D.W.2. D.W.2 in his chief-examination he has reiterated the averments made in the written statement and evidence of D.W.1. D.W.2 has undergone intensive cross- examination by the counsel for plaintiff.
11 O.S.No.9519/1997
17. On examination of documents coupled with oral testimony of P.W.1 to P.W.3 and D.W.1 and D.W.2, it appears that on 13-10- 1997 the defendant offered to sell his property to the plaintiff for sale consideration of Rs.11,00,000/-. Accordingly, the plaintiff paid a sum of Rs.4,30,000/- as advance and in part performance of the agreement the defendant has parted with his original sale deed, plan and tax paid receipts to the plaintiff. On the same day the defendant has executed another supplemental agreement in favour of the plaintiff contending that in case, he fails to vacate the tenants from his property and if he fails to clear the income tax, he would refund the advance sale consideration within two months.
18. In the instant suit, the plaintiff is relying upon Ex.P-1 the agreement of sale. To prove the contents of Ex.P-1, the plaintiff got examined attesting witness P.W.2 Sri.Lakshman Kumar, thereby, the plaintiff has complied requirement of section 68 of Indian Evidence Act. Thus, the plaintiff has proved that the defendant has executed Ex.P-1 and Ex.P-2 in favour of the plaintiff.
19. According to the defendant, under Ex.P-1 and Ex.P-2 the defendant has not received any advance sale consideration from the 12 O.S.No.9519/1997 plaintiff. On perusal of Ex.P-1, under this document the plaintiff has paid a sum of Rs.4,30,000/- to the defendant. The plaintiff has not produced any income tax returns to show that he paid a sum of Rs.4,30,000/- to the defendant. On the contrary the defendant himself is relying upon Ex.D-1 and Ex.D-2 on demand promissory note dated 18-03-1993 and 20-03-1993 executed by defendant in favour of plaintiff. Under Ex.D-1 and Ex.D-2, the defendant had borrowed a sum of Rs.50,000/- each from the plaintiff. On perusal of Ex.D-1 and Ex.D-2 it clearly establishes that the defendant is used to borrow the loan from the plaintiff. As such the defendant has executed Ex.P-1 and Ex.P-2 in favour of the plaintiff.
20. According to the defendant, the plaintiff has created Ex.P-1 and forged signature of defendant in Ex.P-1 and Ex.P-2. In support of the contention of defendant, the defendant has not filed any complaint before the police alleging any forgery or fraud alleged to have been committed by plaintiff. The defendant has not taken any steps as required under section 17 of the Indian Contact Act. Further the defendant has not pleaded his pleading in the manner required under order 6 Rule 14 of C.P.C. to prove alleged frad and 13 O.S.No.9519/1997 coercion. Therefore, the defendant has not challenged Ex.P-1 and Ex.P-2 before any competent court of law.
21. Admittedly, the plaintiff and defendant had transacted since 1992. As per the evidence of D.W.1, the defendant mortgaged his property with Vijaya Bank for Rs.40,000/- and approached the plaintiff for lending loan of Rs.50,000/- to the discharge of said loan. In this regard, the defendant had executed Ex.D-1 and Ex.D-2 in favour of the plaintiff. Further the defendant had taken enhanced loan from the plaintiff in the year 1995 and earlier debt has been discharged. On perusal of the pleadings and evidence it establishes that there were transactions between the plaintiff and defendant. In this regard, the defendant has executed Ex.P-1 and Ex.P-2 in favour of the plaintiff.
22. According to the defendant, the plaintiff has obtained the original sale deed, tax paid receipts and the plan from the custody of State Bank of Mysore and has misused the document in the present suit. On the contrary, P.W.3 the Manager of State Bank of Mysore clearly deposed that on 19-09-1995 the defendant himself received original documents from the State Bank of Mysore. To 14 O.S.No.9519/1997 substantiate this contention P.W.3 is relying upon Ex.P-6 at page No.470 and 471 of Ex.P-6 signature of the defendant is appearing. Though the defendant disputed the signature found in Ex.P-6 the daily list of State Bank of Mysore, he has not filed any complaint to police stating that the bank authorities have cheated him or committed forgery or fraud on him. Further he has not lodged any complaint to higher bank officials. Further the defendant has not issued any notice calling upon the bank to return the original documents. Further the defendant has not filed any case against the State Bank of Mysore.
23. In the instant suit, the contentions raised by the plaintiff and the deposition of P.W.2 and P.W.3 have not been dis-credited by the defendant and the defendant has not shaken the credibility of deposition of P.W.1 to P.W.3. On the other hand, the plaintiff is able to prove that on 13-10-1997 he executed the agreement of sale in favour of defendant for a sum of Rs.4,30,000/- and subsequently failed to execute the sale deed nor refunded the advance amount. Since the defendant by producing Ex.D-1 and Ex.D-2 admitted the earlier transactions. Therefore, much relevance is not given to, non filing of the income tax returns of the plaintiff. Hence, the plaintiff is 15 O.S.No.9519/1997 able to prove that the defendant is agreed to sell his property bearing No.16, Sanjeevappa Lane for Rs.11,00,000/- and executed agreement of sale dated 13-10-1997 by receiving advance amount of Rs.4,30,000/-. Hence, I answer issue No.1 and 2 in the AFFIRMATIVE.
24. ISSUE No.3 : In the instant suit, the plaintiff has prayed to direct the defendant to pay a sum of Rs.4,30,000/- towards refund of advance sale consideration. The plaintiff is successfully proved issue No.1 and 2. So far as the interest is concerned the plaintiff has claimed an interest at the rate of 24% P.A. The interest sought for by plaintiff is high and exorbitant one. If interest is awarded at the rate of 13% P.A. no hardship or prejudice will be caused to the plaintiff and defendant. The plaintiff is entitled for the interest at the rate of 13% P.A. Accordingly, I answer issue No.3 partly in the AFFIRMATIVE.
25. ISSUE No.4 : In view of fore-going discussions on Point No.1 to 3, the suit filed by the plaintiff deserves to be decreed in part with costs. Hence, I proceed to pass the following : 16 O.S.No.9519/1997
ORDER In the result, the suit filed by the plaintiff is decreed in part with costs.
The defendant is directed to pay a sum of Rs.4,47,200/- together with interest at the rate of 13% P.A. on the principal amount of Rs.4,30,000/- from the date of suit till its complete realization, failing which, plaintiff is entitled to get the decree executed through process known to law.
Draw decree accordingly.
[Dictated to the Judgment Writer, the transcript thereof is corrected and then pronounced by me in Open Court, this the 11th day of March 2015.] (T.VENKATESH NAIK) XIV Addl. City Civil Judge Bangalore.
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ANNEXURE List of witnesses examined on behalf of plaintiff/s :
P.W.1 Sri.Jayantilal B.Chawana P.W.2 Sri.V.S.Lakshman Kumar P.W.3 Sri.Suresh Babu
List of witnesses examined on behalf of defendant/s :
D.W.1 Sri.N.Rajarathnam
17 O.S.No.9519/1997
D.W.2 Sri.K.L.Srinivas
List of documents exhibited on behalf of plaintiff/s :
Ex.P-1 Agreement of sale dated 13-10-1997 Ex.P-2 Copy of agreement dated 13-10-1197 Ex.P-3 Telegraphic legal notice dated 12-12-1997 Ex.P-4 & Ex.P-5 Registered copy/acknowledgement Ex.P-6 Extract of daily list of State Bank of Mysore Ex.P-7 Sale deed dated 17-10-1980 Ex.P-8 Approved plan Ex.P-9 & Ex.P-10 Tax paid receipt
List of documents exhibited on behalf of defendant/s :
Ex.D-1 On demand promissory note dated 18-03-1993 Ex.D-2 On demand promissory note dated 20-03-1993 Ex.D-3 Notice issued by defendant dated 16-03-1994 Ex.D-4 Letter of plaintiff dated 16-04-1994 Ex.D-5 Letter of State Bank of Mysore Ex.D-6 Death certificate Ex.D-7 & Ex.D-8 Invoices Ex.D-9 Accounts showing supply of goods Ex.D-10 Bank pass book Ex.D-11 Certified copy of the lease agreement Ex.D-12 Share certificate 18 O.S.No.9519/1997 Ex.D-13 & Ex.D-14 Receipt and I.D. card XIV ADDL.CITY CIVIL JUDGE BANGALORE.