IN THE COURT OF THE XLII ADDL., CITY CIVIL & SESSIONS JUDGE AT BENGALURU CITY (CCH.NO.43). PRESENT: Sri.[ENTITY], B.A.L., LL.M., XLII ADDL., CITY CIVIL AND SESSIONS JUDGE, BENGALURU. Dated this the 10th day of December, 2018. [CASE NUMBER] Plaintiff:- Smt.[ENTITY], W/o.Late Ramaiah, R/at No:71, 6th Cross, Near Modi Eye Hospital, Indiranagar Slum, Rajajinagar, Bangalore - 10. (By Adv.[ENTITY]) v. Defendant:- Smt.[ENTITY], W/o.Sri.T.Devaraj, R/o.No:88, 2nd Cross, Hoysala Nagar, Janatha Colony, Nagarabavi, Bangalore - 72. (By Adv.[ENTITY]) Date of institution of the suit : 20.06.2015 Nature of the suit : Specific Performance Date of commencement of : 27.10.2016 Recording of the evidence Date on which the Judgment : 10.12.2018 was pronounced Total Duration : Years Months Days Judgement 2 [CASE NUMBER] 03 05 20 ([ENTITY]) XLII ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU. JUDGEMENT
The plaintiff has filed the above suit for specific performance of contract. Alternatively, for refund of consideration amount of Rs.7,25,000/- with interest @ 18% p.a. on the said amount from the date of agreement till realization and damages and costs.
2. The plaintiff's case in brief as under:-
Site bearing khatha No.910, measuring 20 x 50 feet, situated at Sidadehalli Village, Yeshwanthapura Hobli, Bengaluru was purchased by the defendant and [ENTITY] jointly from one Smt.[ENTITY] vide., registered Sale Deed dated 14.06.2012. Said [ENTITY] sold northern half portion of the said property measuring 20 x 25 feet to one [ENTITY] vide., registered Sale Deed dated 24.07.2014. The defendant was in need of funds and desired to sell the suit schedule property to the plaintiff for total sale consideration of Rs.7,75,000/- and plaintiff agreed to purchase the same and paid advance amount of Judgement Rs.7,25,000/- to the defendant by way of cash and Agreement of Sale was executed on 01.10.2014. The defendant agreed to receive the balance sale consideration of Rs.50,000/- and register the Sale Deed within one month from the date of Agreement of Sale. Subsequently, the plaintiff visited the defendant's house but, the defendant failed to execute the Sale Deed in favour of the plaintiff. Hence, plaintiff got issued legal notice on
03.01.2015, calling upon the defendant to execute the Sale Deed on 17.01.2015. Inspite of service of said notice, the defendant failed to execute the Sale Deed in favour of the plaintiff. Hence, the plaintiff has filed the above suit.
3. In response to the suit summons, the defendant has appeared before the court through her counsel and filed the written statement. In the written statement, the defendant admits that defendant and [ENTITY] jointly purchased site bearing khatha No.910, measuring 20 x 50 feet, situated at Sidadehalli Village, Yeshwanthapura Hobli, Bengaluru from one Smt.[ENTITY] vide., registered Sale Deed dated 14.06.2012. Further, has contended that as per oral agreement between the defendant and said [ENTITY], the defendant has pre-emption right and said [ENTITY] behind the back of the defendant sold northern half portion to one [ENTITY] and in this regard, the defendant has filed a suit for partition in [CASE NUMBER] on Judgement the file of Prl. City Civil & Sessions Judge, Bengaluru against [ENTITY] and [ENTITY]. There is no division between the defendant and [ENTITY] in respect of said property therefore, [ENTITY] and [ENTITY] are necessary parties to the above suit and suit is bad for non-joinder of necessary parties. Further, the defendant has contended that on 05.05.2018 at 6:30 p.m. she had lost original documents pertaining to the suit schedule property along with six signed cheques and six blank signed document sheets near xerox shop at Basaveshwaranagar, Bengaluru and in this regard, the defendant has filed the complaint before the police and the police have issued NCR to the defendant. The defendant has not executed any Agreement of Sale dated 01.10.2014 in favour of the plaintiff. Further, the defendant has denied the receipt of advance consideration amount of Rs.7,25,000/- from the plaintiff. The defendant had lost the original documents on 05.05.2014 and the plaintiff has found the same and the plaintiff has issued legal notice dated 29.10.2014 to the defendant and defendant has issued reply on 23.12.2014 to the said notice. After receipt of summons from this court the defendant came to know that the plaintiff is in custody of the original documents. The defendant requested the plaintiff to return the original document but, the plaintiff refused to do so. The plaintiff in collusion with [ENTITY] has created Judgement the Agreement of Sale by misusing signed blank papers. The suit is barred under [SECTION] of the [ACT]. Hence, prayed that suit may be dismissed with costs.
4. On the basis of above pleadings, below mentioned issues arise for consideration:-
ISSUES
1. Whether plaintiff proves that defendant has executed a Sale Agreement dated 01.10.2014, agreeing to sell suit schedule property as claimed in para-3 of the plaint?
2. Whether plaintiff proves that she was ever ready and willing to perform her part of the contract?
3. Whether defendant proves that suit is bad for non-
joinder of necessary parties as claimed in para-12 of the written statement?
4. Whether defendant proves that suit is hit by [SECTION] of the [ACT] in pursuance of the pendency of [CASE NUMBER] as contended in para-14 of the written statement?
5. Whether the defendant proves that plaintiff colluding with Sri.[ENTITY] has created the agreement by misusing the signed blank papers as claimed in para-16 of the written statement?
6. Whether plaintiff is entitled for specific performance as prayed for? OR plaintiff is entitled for alternative relief as prayed for?
7. What order / decree?
Judgement
5. To prove the case of the plaintiff, plaintiff examined herself as PW-1 and got marked Ex.P1 to P6 and examined one witness as PW-2. The defendant examined herself as DW-1 and got marked Ex.D1 to D38.
6. Heard arguments. The learned counsel for the defendant has relied upon the following citations reported in:
1. [CASE NUMBER], in the case of [PRECEDENT].
2. [PRECEDENT], in the case of [PRECEDENT].
3. [PRECEDENT], in the case of [PRECEDENT].
4. [PRECEDENT], in the case of [PRECEDENT].
5. [PRECEDENT], in the case of [PRECEDENT].
6. [PRECEDENT], in the case of [PRECEDENT].
7. [PRECEDENT], in the case of [PRECEDENT].
7. My findings on the above said issues are as follows:-
Issue No.1:- In the Affirmative. Issue No.2:- In the Affirmative. Issue No.3:- In the Negative. Issue No.4:- In the Negative. Judgement Issue No.5:- In the Negative. Issue No.6:- In the Affirmative. Issue No.7:- As per final order. for the following:- REASONS
8. Issue Nos.1 to 6:- These issues are taken up together for consideration to avoid repetition of facts, evidence and convenience.
PW-1 in her examination-in-chief has stated the defendant and [ENTITY] jointly purchased site bearing khatha No.910, measuring 20 x 50 feet, situated at Sidadehalli Village, Yeshwanthapura Hobli, Bengaluru from one [ENTITY] vide., registered Sale Deed dated 14.06.2012. Said [ENTITY] sold northern half portion of the said property measuring 20 x 25 feet to one [ENTITY] vide., registered Sale Deed dated 24.07.2014. DW-1 in her examination-in-chief admits that defendant and [ENTITY] jointly purchased site bearing khatha No.910, measuring 20 x 50 feet. The plaintiff has produced certified copy of Sale Deed dated 14.06.2012 and EC at Ex.P1 and P2. Ex.P1 and P2 are originals and marked without any objections. Ex.P1 and P2 bear the seal and signature of competent authority hence, Ex.P1 and P2 are admissible in evidence hence, Ex.P1 and P2 can be relied upon by this court. From the recitals of Ex.P1 and P2, it Judgement goes to show that [ENTITY] and defendant have jointly purchased property bearing khatha No.910, measuring 20 x 50 feet, situated at Sidadehalli Village, Yeshwanthapura Hobli, Bengaluru from one [ENTITY]. Therefore, contention of the plaintiff that defendant and [ENTITY] jointly purchased the above said property has to be accepted.
9. PW-1 in her examination-in-chief has stated that the defendant was in need of funds to meet family expenditure, legal necessity and to clear debts and desired to sell the suit schedule property to the plaintiff for total sale consideration of Rs.7,75,000/- and plaintiff agreed to purchase the same and paid advance amount of Rs.7,25,000/- to the defendant by way of cash and Agreement of Sale was executed on 01.10.2014. The defendant agreed to receive the balance sale consideration of Rs.50,000/- and register the Sale Deed within one month from the date of Agreement of Sale. PW-2 is the attesting witness. PW-2 in his examination-in-chief has stated that in his presence Agreement of Sale was executed by the defendant in favour of plaintiff and plaintiff paid Rs.7,25,000/- by way of cash to the defendant. Per contra, DW-1 in her examination-in-chief has denied the execution of Agreement of Sale and also receipt of amount of Rs.7,25,000/- from the plaintiff and further has stated that she had lost the original documents in respect of the suit Judgement schedule property along with signed cheques and signed blank papers and plaintiff has misused the said signed blank papers and created the Agreement of Sale. In support of plaintiff's case, the plaintiff has produced Agreement of Sale dated 01.10.2014 at Ex.P3. Ex.P3 is the original document and marked without any objections hence, admissible in evidence. PWs.1 and 2 in their evidence have categorically stated that defendant executed the Agreement of Sale in favour of the plaintiff and plaintiff paid Rs.7,25,000/- in cash as advance amount to the defendant and the defendant agreed to execute Sale Deed within one month by receiving balance sale consideration of Rs.50,000/-. PW-2 in his evidence has identified his signature on Ex.P3 at Ex.P3(c). PWs.1 and 2 in their evidence have categorically stated about execution of Ex.P3 and payment of Rs.7,25,000/- by the plaintiff to the defendant. The oral and documentary evidence i.e., Ex.P3 corroborate each other. Advocate for the defendant argued that evidence of PWs.1 and 2 are contradictory to each other. Further, argued that PW-1 in her evidence says that at the time of negotiation, [ENTITY], defendant, plaintiff and her sister were present and they were present at the time of execution of Agreement of Sale but, in the cross-examination PW-1 says that at the time of execution of Agreement of Sale plaintiff and her sister were only present therefore, PW-2 was not present at the Judgement time of execution of Agreement of Sale hence, Agreement of Sale is a concocted document. It is pertinent to note that, PW-1 at page No.9 in her cross-examination has stated as follows:-
".3 [PRECEDENT]. .3 [PRECEDENT]. w gzg Cg AP Ez Pgt irz. v Rz N gd Qz JAzg Q Eg N zg iq JAz zg irz JAz vg. P Ai Ezg U tz g qv. Ai P, gd v CP Ez."
From the above evidence of PW-1, it goes to show that at the time of drafting Ex.P3 plaintiff and her sister were present and at the time of execution of Agreement of Sale and payment of advance amount to the defendant, plaintiff, her sister, defendant and PW-2 were present. PW-1 in her cross-examination nowhere Judgement has admitted that PW-2 was not present at the time of execution of Agreement of Sale and payment of advance amount. Therefore, above contention of defendant's counsel cannot be accepted. Advocate for defendant argued that plaintiff has failed to examine her sister before this court therefore, plaintiff has failed to prove execution of Ex.P3. It is pertinent to note that, plaintiff has examined one attesting witness i.e., PW-2 before this court to prove execution of Ex.P3. Examination of one attesting witness is sufficient. Hence, the above argument of defendant's counsel is not sustainable under law. Advocate for the defendant argued that advance amount of Rs.7,25,000/- is not paid by the plaintiff to the defendant. It is pertinent to note that, in Ex.P3 it is categorically mentioned that by way of cash Rs.7,25,000/- is paid to the defendant by the plaintiff. Apart from the documentary evidence, PWs.1 and 2 in their oral evidence have categorically stated about payment of Rs.7,25,000/- by the plaintiff to the defendant. The plaintiff has produced sufficient evidence before this court to show that she has paid Rs.7,25,000/- to the defendant. Therefore, above contention of defendant's counsel cannot be accepted. More over, defendant in her cross-examination admits her signature on Ex.P3 at Ex.P3(a). From the above admission of defendant, it can be inferred that Ex.P3 is duly executed by defendant. The burden is on the Judgement defendant to show that she had lost the original documents along with signed cheques and signed blank papers on 05.05.2014. The defendant has produced endorsement issued by Basaveshwaranagara Police Station at Ex.D27. Advocate for the defendant argued that as per Ex.D27, it clearly goes to show that original documents were lost and same are misused by the plaintiff. Advocate for the plaintiff argued that Ex.D27 doesn't pertain to suit schedule property hence, Ex.D27 is not helpful to the defendant herein. From the recitals of Ex.D27, it discloses that on 09.05.2014 the defendant has lodged complaint alleging that on 05.05.2014 at 6:20 p.m., near xerox shop / bus-stand original documents pertaining to Thotada Guddadahalli property and Dasanapura property are lost. Ex.D27 doesn't contain any recital to the effect that original documents pertaining to the suit schedule property were lost on the said date. No evidence is produced by the defendant to show that Sidedahalli Village and Thotada Guddadahalli Village are one and the same. Therefore, adverse inference has to be drawn against the defendant. Hence, Ex.D27 is not helpful to the defendant and same cannot be relied upon. Hence, contention of the defendant that original documents pertaining to the suit schedule property along with signed cheques and signed blank papers were lost on 05.05.2014 cannot be accepted. DW-1 in her evidence has stated that plaintiff, Judgement [ENTITY], PW-2 and [ENTITY] have colluded together and created Ex.P3. It is pertinent to note that, except self serving statement, the defendant has not produced any evidence to show that above persons in collusion have created Ex.P3. Hence, above contention of the defendant cannot be accepted. PW-1 in her evidence has categorically stated that after execution of Ex.P3, she visited defendant's house several times but, the defendant postponed registration and execution of regular Sale Deed hence, plaintiff issued legal notice on 03.01.2015, calling upon the defendant to come to the Sub-Registrar Office at Madanayakanahalli on 17.01.2015 and execute the Sale Deed in her favour. On 17.01.2015, the plaintiff and her advocate waited in the Sub-Registrar Office but, the defendant failed to come over to the Sub-Registrar Office and execute Sale Deed. In support of plaintiff's case, the plaintiff has produced copy of the legal notice, postal receipt and acknowledgement Ex.P4 to P6. DW-1 in her cross-examination admits receipt of legal notice i.e., Ex.P4. From Ex.P4, it clearly goes to show that plaintiff was ready and willing to perform her part of the contract. DW-1 in her cross- examination has stated that she has issued reply to legal notice i.e., Ex.P4. The defendant has produced xerox copy of the reply notice at Ex.D28. The plaintiff has denied receipt of said reply notice i.e., Ex.D28. The defendant has not produced postal Judgement receipt or acknowledgement before this court to show that the said reply notice was issued to plaintiff's counsel as contended by the defendant. Therefore, contention of the defendant that she has issued reply notice to the plaintiff as per Ex.D28 cannot be accepted. Advocate for the defendant argued that plaintiff has failed to prove ready and willing before this court hence, plaintiff is not entitle for the relief of specific performance of contract. It is pertinent to note that, plaintiff in her evidence has categorically stated that she visited defendant's house but, the defendant postponed the execution of regular Sale Deed and issued legal notice as per Ex.P4, calling upon the defendant to execute the Sale Deed on 17.01.2015 before the Sub-Registrar, Madanayakanahalli and she waited in the Sub-Registrar Office on the said date but, the defendant failed to turn up and execute the Sale Deed. From the above evidence of PW.1, it clearly goes to show that the plaintiff was ready and willing to perform her part of the contract therefore, contention of the defendant that the plaintiff was not ready and willing cannot be accepted.
10. Advocate for the defendant argued that defendant and one [ENTITY] have jointly purchased the property bearing khatha No.910 and no partition has been effected between defendant and [ENTITY] and said [ENTITY] has sold portion of the property to [ENTITY] and in this regard, defendant Judgement has filed a suit [CASE NUMBER] against [ENTITY] and [ENTITY] for partition therefore, said [ENTITY] and [ENTITY] are necessary parties to the present suit and suit is bad for non- joinder of necessary parties. As per Ex.P1, defendant and [ENTITY] have jointly property bearing khatha No.910, measuring 20 x 50 feet from one Smt.[ENTITY]. As per Ex.P3 i.e., Agreement of Sale, the defendant has offered to sell her portion of property to the plaintiff. There is no impediment for the defendant to sell her share in the property to plaintiff. Any decree passed in the above suit will not affect the rights of said [ENTITY] or [ENTITY]. Said [ENTITY] and [ENTITY] are not necessary parties to the above suit. Therefore, contention of defendant's counsel that suit is bad for non-joinder of necessary parties is not sustainable under law.
11. Advocate for the defendant argued that present suit is barred under [SECTION] of the [ACT]. [SECTION] of [ACT] reads as follows:
"17. Contract to sell or let property by one who has no title, not specifically enforceable - (1) A contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor -
(a) who, knowing not to have any title to the property, has contracted to sell or let the property;
(b) "
Judgement From the above provision of law, it discloses that a contract to sell cannot be enforced in favour of a vendor or lessor who, knowing not to have any title to the property, has contracted to sell the property. In the present case, it is not the case of the defendant that she had no right / title over the suit schedule property. As per Ex.P1, the defendant is co-owner of the property. Hence, contention of defendant's counsel that suit is barred under [SECTION] of [ACT] is not sustainable under law.
12. Advocate for the defendant argued that the plaintiff is not entitle for the relief of specific performance and the suit is hit by [SECTION] of [ACT]. [SECTION] of the [ACT] reads as follows:
"20. Discretion as to decreeing specific performance - (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.
(2) The following are cases in which the court may properly exercise discretion not to decree specific performance: -
(a) where the terms of the contract or the conduct of the parties at the time of Judgement entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or
(c) "
It is settled proposition of law that the relief of specific performance is a discretionary relief. In the present case, the sale price is fixed at Rs.7,75,000/-. As per Ex.P3, the plaintiff has paid advance amount of Rs.7,25,000/- to the defendant. The balance payable by the plaintiff to the defendant is a meagre sum of Rs.50,000/-. The plaintiff has paid substantial amount by way of advance to the defendant in the year 2014 itself. Therefore, the plaintiff is entitle for the relief of specific performance. Hence, contention of defendant's counsel that suit is hit by [SECTION] of the [ACT] is not sustainable under law.
13. The learned counsel for the defendant has relied upon the following citations reported in:
Judgement
1. [CASE NUMBER], in the case of [PRECEDENT].
2. [PRECEDENT], in the case of [PRECEDENT].
3. [PRECEDENT], in the case of [PRECEDENT].
4. [PRECEDENT], in the case of [PRECEDENT].
5. [PRECEDENT], in the case of [PRECEDENT].
6. [PRECEDENT], in the case of [PRECEDENT].
7. [PRECEDENT], in the case of [PRECEDENT].
The citations relied upon by the learned counsel for the defendant are not applicable to the facts and circumstances of the present case. In the light of the above discussion, I answer Issue Nos.1, 2 and 6 in the Affirmative and Issue Nos.3 to 5 in the Negative.
14. Issue No.7:-
In view of my above discussion, I proceed to pass the following:
ORDER Suit of the plaintiff is decreed with costs.
Judgement The plaintiff is entitle for the relief of specific performance.
The defendant is directed to execute and register regular Sale Deed in favour of the plaintiff after receiving balance sale consideration of Rs.50,000/- from the plaintiff within 3 months from the date of decree.
Further, the defendant is directed to hand over vacant possession of the suit schedule property to the plaintiff on the date of registration of the Sale Deed.
The plaintiff shall bear stamp duty, registration charges and other expenses towards registration of the Sale Deed.
Draw decree accordingly.
(Dictated to the Judgement Writer, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, this the 10th day of December, 2018) ([ENTITY]) XLII Addl., City Civil & Sessions Judge, Bengaluru.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side:
PW.1 - Smt.[ENTITY] PW.2 - Sri.[ENTITY]
(b) Defendant's side:
DW.1 - Smt.[ENTITY] Judgement II. List of documents exhibited on behalf of:
(a) Plaintiff's side:
Ex.P1 : Original Registered Sale Deed dated 14.06.2012 Ex.P2 : EC Ex.P3 : Agreement to Sell Ex.P3(A) : Signature of [ENTITY] Ex.P3(B) : Signature of [ENTITY] Ex.P3(C) : Signature of [ENTITY] Ex.P3(D) : Signature of [ENTITY] Ex.P4 : Legal Notice Ex.P5 : Postal Receipt Ex.P6 : Postal Acknowledgement (b) Defendant's side: Ex.D1 : Certified copy of Order Sheet in [CASE NUMBER] Ex.D2 : Certified copy of Plaint in [CASE NUMBER] Ex.D3 : Certified copy of Written Statement in [CASE NUMBER] Ex.D4 : Certified copy of Sale Deed dated 10.09.2014 Ex.D5 : Encumbrance Certificate Ex.D6 : Certified copy of Sale Deed dated 14.06.2012 Ex.D7 : Encumbrance Certificate Ex.D8 : Endorsement issued by BBMP Ex.D9 : Postal Acknowledgement Ex.D10 : Legal Notice Ex.D11 : Postal Acknowledgement Ex.D12 : Electricity Bills Ex.D13 : Certified copy of Complaint in [CASE NUMBER] Ex.D14 : Certified copy of Evidence of Smt.[ENTITY] in [CASE NUMBER] Ex.D15 : Certified copy of Evidence of Judgement Smt.[ENTITY] in [CASE NUMBER] Ex.D16 : Cheque dated 05.11.2014 Ex.D17 : Bank Endorsement Ex.D18 : Legal Notice Ex.D19 : Postal Acknowledgement Ex.D20 : Khatha Extract Ex.D21 : Khatha Certificate Ex.D22 : Tax Paid Receipt Ex.D23 & 24 : RTCs Ex.D25 : Statement of Account Ex.D26 : Loan Agreement Ex.D27 : Police Acknowledgement Ex.D28 : Reply Notice Ex.D29 : Affidavit Ex.D30 : Certified copy of Judgment in [CASE NUMBER] Ex.D31 : Notice Ex.D32 : Legal Notice Ex.D33 : Reply Notice Ex.D34 : Postal Receipt Ex.P35 : Certified copy of Order Sheet in [CASE NUMBER] ([CASE NUMBER]) Ex.D36 : Certified copy of Complaint in [CASE NUMBER] Ex.D37 : Endorsement issued by BBMP Ex.D38 : Certified copy of Agreement dated 24.07.2014
XLII ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU.
[ENTITY],o=GOVERN Date: 2018.12.13 Judgement 12:28:06 IST