IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE H.P.SANDESH RFA.No.81/2012 (DEC & INJ) BETWEEN:
CHOUDRI INNS PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT 1956 REP. BY ITS MANAGING DIRECTOR SRI. C.N. KUMAR OFFICE: NO.16, KASTURBA ROAD BENGALURU-560 001. ... APPELLANT (BY SRI. K.N. PHANINDRA, SENIOR COUNSEL FOR HEGDE AND RAO, ADVOCATES) AND:
BRUHAT BENGALURU MAHANAGARA PALIKE REP. BY ITS COMMISSIONER CORPORATION BUILDINGS J.C. ROAD BENGALURU-560 002. ... RESPONDENT (BY SMT. KALPANA S.M., ADVOCATE FOR SRI. T. JAYAPRAKASH, ADVOCATE) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 30.08.2011 PASSED IN O.S.NO.16522/2003 ON THE FILE OF THE XXVII ADDL. CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU, DISMISSING THE SUIT FOR DECLARATION AND INJUNCTION.
THIS RFA COMING HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 13.11.19, THIS DAY THE COURT PRONOUNCED THE FOLLOWING:
J U D G M E N T This appeal if filed challenging the judgment and decree of dismissal of the suit passed in O.S.No.16522/2003 on the file of XXVIII Additional City Civil and Sessions Judge at Mayo Hall unit, Bengaluru (CCH.29).
2. The parties are referred to as per their originals rankings before the Court below to avoid confusion and for the convenience of the Court.
3. Brief facts of the case:-
(i) The plaintiff in the suit has contended that the plaintiff-Company is incorporated under the Companies Act, 1956 and filed the suit for the relief of declaration that the gift deed dated 16.6.2000 has been obtained by the defendant by undue influence and coercion and the same was not binding on the plaintiff and that no title has been passed under the said gift deed to the defendant. The plaintiff has also sought for permanent injunction against the defendant from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property.
(ii) It is the case of the plaintiff that he had purchased the suit schedule property under the sale deed in the year 1990 and thereafter in order to put up 3 Star Hotel on the aforesaid property, he obtained the sanctioned plan for construction of two levels of basements. After the commencement of construction work spending substantial amount, the defendant had directed the plaintiff to stop the construction work as there was a proposal to construct a ‘Flyover’. Hence, the plaintiff filed a Writ Petition No.17218/1998 challenging the same. This Court, vide order dated 9.12.1998 disposed the said writ petition directing the defendant not to stop the construction work of the plaintiff and asked the plaintiff to attend the discussion with the defendant and has also given liberty to the defendant authorities to acquire the land, if the need arose.
Accordingly, the plaintiff had attended the meeting and it was informed that defendant would require a portion of the property belonging to the plaintiff measuring an extent of 5 meters X 43.83 meters for the purpose of widening the Lalbagh road since flyover was constructed on the said road. In view of construction of flyover, the project, which the plaintiff had undertaken to establish 3 Star Hotel became unviable and unfeasible and hence, the plaintiff requested the Director of Town Planning of the defendant to permit the plaintiff to convert the use of building consisting of two basements, ground plus three floors for commercial purpose instead of 3 Star Hotel and to issue occupancy certificate.
(iii) Inspite of several requests being made by the plaintiff to the defendant and also after several rounds of meetings, the defendant agreed to grant permission for the construction and occupancy certificate was issued subject to the condition that the plaintiff shall donate the above said area, which is in the set back area of the property. The plaintiff refused to donate the said portion of the property. The defendant again insisted for the same by refusing to issue occupancy certificate in favour of the plaintiff. The plaintiff also entered into a lease agreement dated 30.3.2000 with M/s Satyam Computers for letting out the commercial building on rent with a specific condition of payment of rents commencing from the date of obtaining occupancy certificate. Hence, the plaintiff was not having any other alternative and bowing to the undue influence and coercion exercised by the defendant was compelled to execute the gift deed on 16.6.2000 in favour of the defendant, but the possession of the said land was not delivered and has been retained with the plaintiff.
(iv) It is contended that after execution of the gift deed, the office of the Joint Director of Town Planning, BBMP issued occupancy certificate dated 15.05.2000 in favour of the plaintiff and the same was signed on 15.07.2000 after ensuring that the gift deed was executed by the plaintiff. The plaintiff filed W.P.No.17421/2001 challenging the same and this Court rejected the said writ petition giving liberty to the plaintiff to approach the Civil Court by filing a suit. Hence, the suit O.S.No.16522/2003 was filed before the Court below.
(v) The defendant did not acquire the adjoining properties but has only targeted the property of the plaintiff and subsequently, some more portion was acquired for the purpose of widening of footpath. Hence, the plaintiff filed an application for amendment of the plaint to include the extent of the said area mentioned in the Schedule to the plaint. The said application was allowed and accordingly, amended the schedule to the plaint. In pursuance of the suit filed by the plaintiff before the Court, summons was issued against the defendant and defendant was represented through its counsel, but did not choose to file the written statement.
(vi) The plaintiff, examined one witness as PW.1 and got marked documents Exs.P.1 to P14. PW.1 was also cross-examined. The defendant did not choose to examine any witness. However, during the cross-
examination of PW.1, confronted the documents Exs.D1 to D6.
(vii) The Court below, after considering the oral and documentary evidence and hearing arguments, dismissed the suit of the plaintiff. Hence, the present appeal is filed.
4. The grounds urged in the appeal memo is that the Court below has grossly erred in not taking into consideration the contents of the occupancy certificate dated 15.5.2000 issued by the defendant in terms of Ex.P6, which would clearly reveal that the authorities of the defendant have mentioned about the execution of the gift deed dated 16.6.2000 and handing over the portion of land measuring an extent of 5 meters x 43.83 meters to the defendant for the proposed flyover, but the said occupancy certificate has been signed by the officer only on 15.7.2000, after ensuring that the gift deed was executed by the plaintiff. This is one of the facts that would clearly prove the defendant had coerced the plaintiff to execute the gift deed in its favour. The Court below, has grossly erred in failing to observe that the defendant had not filed the written statement in the said suit and also not led any evidence on its side. Inspite of the case of the plaintiff being remained unchallenged, the Court below dismissed the suit.
5. It is further contended that the Court below has failed to appreciate the crucial element of free will and that consent was absent in the act of execution of the gift deed. A reading of the covenants at Ex.P8 would clearly reveal the absence of ‘Free Will’ and ‘Consent’ and shows that the said deed was being executed by the plaintiff in favour of the defendant in view of the insistence of the defendant authority, as a precondition for issuing the occupancy certificate for the commercial building constructed by the defendant over the remaining portion of the very same property. The Court below also failed to appreciate the factual aspects of the case and the circumstances which compelled the plaintiff to execute the sale deed. Hence, it requires interference of this Court.
6. Learned counsel appearing for the appellant/plaintiff in his arguments vehemently contended that no consideration was passed to execute the gift deed and the same was obtained with coercion and undue influence. Learned counsel also would contend that Section 14 of the Contract Act discuss with regard to free consent which is absent in the transaction taken place between the plaintiff and defendant. The Trial Court failed to appreciate the material on record and has erroneously come to the conclusion that as per the terms and conditions agreed between the parties during deliberations, while issuing occupancy certificate, the plaintiff was obliged to execute the release cum gift deed in favour of the defendant in respect of the suit property. The Court below also failed to take note of the fact that with undue influence and coercion, the defendant has obtained the gift deed. Hence, it requires interference of this Court.
7. Learned counsel in support of his contention relied upon the judgment reported in (2004) 9 SCC 468 in the case of Krishna Mohan Kul @ Nani Charan Kul and another Vs. Pratima Maity and Others and brought to my notice para-12 of the judgment. Referring to the same, he contended that when a person is in a fiduciary relationship with another and the latter is in a possession of active confidence, the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in dominating position, and he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case, the burden of proving the good faith of the transaction is thrown upon the dominating party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relationship to another has a duty to protect the interest given to his care and the Court watches with jealousy all transactions between such persons so that the protector may not use his influence or the confidence to his advantage.
8. Learned counsel also brought to my notice para-13 and para-14 of the judgment and contended that in judging the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. It is well established that the Court of Equity, when a person obtains any benefit from another imposes upon the grantee the burden, if he wishes to maintain the contract or gift, of proving that in fact he exerted no influence for the purpose of obtaining it. Hence, it is very clear that the burden of proving is on the defendant that there was no any fraud or coercion in obtaining the documents, which has not been done. Hence, under such circumstances, the Trial Court ought to have decreed the suit.
9. Learned counsel appearing for the defendant in her arguments contended that there is no any material to prove the fact of coercion and undue influence. The Hon’ble High Court while disposing of the writ petition, had directed the parties to sit together, discuss the issues and take a decision. Accordingly, both parties met and took a decision. It is only after due deliberation, he voluntarily came forward to execute the gift deed. While cross-examining P.W.1, defendant’s counsel confronted the documents and the same were admitted by the plaintiff. When such being the case, the plaintiff cannot find fault with the Court below and also find fault with the defendant. The Court below, considering both oral and documentary evidence available on record, has opined that there was no fraud, coercion or undue influence in executing the gift deed. Hence, it does not require any interference of this Court.
10. Having heard the arguments of the appellant’s counsel as well as the counsel appearing for the defendant and also keeping in view of the contentions urged in this appeal, the points that arise for consideration of this Court are as follows:-
1. Whether the Court below has committed an error in dismissing the suit in coming to the conclusion that there was no coercion and undue influence in getting the gift deed executed and whether it requires interference of this Court?
2. What Order?
11. Points No.1 and 2:-
Having considered the pleadings of the parties and also contents of the plaint and admittedly, the defendant has not filed any written statement, however, cross-examined P.W.1, the Court below, framed the following issue:-
“Whether the plaintiff is entitled for the relief of declaration and injunction as prayed for?”
12. The plaintiff, in order to substantiate its claim, examined one witness as P.W.1 and got marked documents Exs.P.1 to P14 i.e., khatha certificate at Ex.P1, Ex.P2 to 4 are licenses, Ex.P5-NOC issued by Air Force Services, Ex.P6-occupancy certificate, EX.P.7- agreement of lease dated 30.3.2000, Ex.P8-certified copy of gift deed, Ex.P9-NOC issued by BWSSB, Ex.P10-
certified copy of the order passed in W.P.No.17421/2001, Ex.P.11-rough sketch, Ex.P.12- consent letter dated 21.10.2004, Exs.P.13 and 14 - copies of public notice.
13. The plaintiff was subjected to cross- examination by the defendant. In the cross- examination, it is elicited by confronting the documents that he has given undertaking to the Assistant Executive Engineer, BMP and he identified the same and it was marked as Ex.D.2, but witness volunteers that he was compelled to give the undertaking because of harassment as he was loosing Rs.25,000/- every day. The plaintiff was also confronted by showing another letter dated 19.3.1999 given by the defendant, he admits the same and it was marked as Ex.D.3. The witness was confronted with Gazette notification, which was admitted and marked as Ex.D.4 and so also photograph of suit schedule property was confronted, which admitted and marked as Ex.D.5. He admits that he had preferred writ petition in respect of the construction of Hotel. He also admits that he had applied for modified plan after disposal of the writ petition to the Corporation. It is suggested that by giving such property to the defendant, he has taken the benefit of putting up two basement floors and the same was denied, but he volunteers that two basement floors were already constructed. The witness was confronted with possession certificate dated 23.06.2000 which was admitted and marked as Ex.D.6. He volunteers that till date he has not handed over the possession to the BMP, but he deposes that he was compelled to sign the document. It is suggested that Ex.D.6 was prepared by him and handed over to the BMP and the same was denied. The defendant did not choose to adduce any evidence except confronting the documents to the plaintiff.
14. On perusal of evidence of P.W.1 and also the pleadings, it is clear that he obtained the plan for the construction of 3 Star Hotel with two levels of basement but at the first instance, the same was not approved. In the grounds of the appeal, the plaintiff has contended that defendant refused to grant the approval for the said plan. Subsequently, the plaintiff had submitted another plan showing the proposed construction of one basement. The said plan was approved by the Tourism Department of Government of Karnataka, vide order dated 30.5.1997 for construction of 3 Star Hotel. Thereafter, the plaintiff secured all the requisite approvals from the Fire Force Services and Electricity Board and sought for the modification of the earlier building plan with proposal to construct two levels of basement. The said plan was approved by the defendant on 16.10.1997. Hence, it is clear that the plan was sanctioned for the construction of 3 Star Hotel building with two levels of basement.
15. It is also the case of the plaintiffs that when the construction was undertaken and subsequently amount has been spent, it was directed to stop the construction work. Hence, the writ petition was filed challenging the same. On perusal of the order dated 09.12.1998 passed in W.P.No.17218/1998, this Court has given liberty to take such action as permissible in law either for acquisition of land or for alteration of the license as the case may be, in accordance with law, of course after hearing the petitioner. It is also not in dispute that after the disposal of the writ petition, the plaintiff approached the defendant and talks were held among them and thereafter, Ex.P.8-gift deed was executed.
16. It is to be noted that the order of writ petition is dated 9.12.1998 and Ex.D.1 discloses that on 20.9.1999, the plaintiff gave letter to the Joint Director of Town Planning explaining what had happened subsequently to obtaining of the sanctioned plan and undertaking of the construction, in the said letter. It is also mentioned that after the building is constructed for commercial purpose, as per Building Bye Laws for the Municipal Corporation, it is permissible to have only one basement and two basements are not permissible, since the two basements have already been constructed at substantial costs and the plaintiff may be permitted to use the same purely for car parking. That apart, if the Municipal Authorities were to acquire the stretch of land on Lalbagh Road to the extent of 5 meters X 43.83 meters, they would be loosing the car parking area on this part of land. Therefore, in order to compensate this loss of car parking area, they should be permitted to use the second basement for parking purpose and prayed the authority to sanction the second basement floor purely for parking purpose. Hence, it is clear that after the disposal of the writ petition, a letter was addressed to the Joint Director of Town Planning.
17. The defendant did not dispute Ex.D.1. It is also important to note that he gave the undertaking in terms of Ex.D.2 that they would hand over possession of the land measuring East to West 5 meters and North to South 43.83 meters. It is also mentioned in the undertaking that due to the site condition being very low lying from the road, if they remove the compound wall it will be a problem for the public. Hence, the existing compound wall will be dismantled after filling the low lying area in the said property and requested to take possession of the land as mentioned in the undertaking. When such an undertaking is given by the plaintiff, now cannot contend that with undue influence and coercion the property has been taken by the defendant.
18. In pursuance of Ex.D.1-letter addressed to the defendant, an undertaking was given. No doubt this undertaking does not bear the date but on perusal of the stamp paper, it is dated as 30.10.1999. Hence, it is clear that after the letter was addressed to the defendant in terms of Ex.D.1, the undertaking was given after one month and it shows that there was deliberation between the plaintiff and defendant. It is also important to note that Ex.D.3 which is confronted and admitted by the plaintiff also disclose that a reference has been made to the order of this Court dated 9.12.1998 in W.P.No.17218/1998 giving liberty for alteration of the licence dated 04.10.1997 and accordingly, the plaintiff sought for revised plans for commercial building.
19. Ex.D.6–Possession certificate discloses with regard to delivering of possession by plaintiff which is dated 22/23.06.2000. No doubt, the contents of Ex.P.8 discloses that in order to grant the occupancy certificate, the Releasee has insisted and required the Releasor to release an area measuring East to West 5 meters and North to South 43.83 meters along the road in favour of the Releasee to allow the set back area for the proposed Fly-over and subject to such release, the Releasee has agreed to grant Occupancy Certificate. The said document is a registered document having registered on 16.06.2000.
20. In pursuance of the documents Exs.D2, D3 and D4, gift deed was executed. No doubt the same was challenged before this Court by filing a Writ Petition No.17421/2001 and the same was rejected with a liberty to file a suit before the Civil Court for appropriate relief observing that whether the gift deed has been obtained by threat or coercion is a matter to be established before the Trial Court. This order was passed on 24.07.2003 and the suit was filed subsequently.
21. The main contention of the appellant’s counsel that with due coercion and undue influence, the gift deed has been obtained. No doubt, the principles laid down in the judgment referred by the appellant’s counsel is clear that if coercion or undue influence is exercised in getting the benefit, it is the duty cast upon the person to prove the same that the same has not been obtained with coercion or undue influence.
22. Having considered the factual aspects of the case, it is clear that the property belongs to the plaintiff and he obtained the plan for construction of 3 Star Hotel building and after persuasion, he obtained the sanctioned plan for construction of two basements and when the decision was taken to construct the fly-over, the defendant stopped the work and thereafter, the defendant approached this Court by filing a writ petition. In the said Writ Petition, a direction was given either to acquire the land or to negotiate with each other and accordingly, the parties have negotiated the same. Ex.D.1 was given subsequent to the disposal of the said writ petition and thereafter, Ex.D.2-undertaking was given by the defendant. It is also important to note that in Ex.D.3, the plaintiff also sought for modification of the plan for the commercial purpose and in the letter Ex.D.1, plaintiff admitted that two basements are not permissible, if it is for the commercial purpose.
23. It is pertinent to take note of the development taken place between the plaintiff and defendant and construction made by the plaintiff after obtaining the first plan, wherein he had already constructed the two basements and the same was regularized by obtaining the modification plan. It is evident from Ex.D.1 that the plaintiff voluntarily came forward to give the property to the extent of East to West 5 meters and North to South 43.83 meters and has given undertaking to handover the said land. Further undertaking was given stating that due to site condition being very low lying from the road and if the compound wall is removed, it would cause problem to the public, the same would be dismantled after filling the low lying area in the said property. This undertaking was given consequent upon the undertaking given in terms of Ex.D.1. Prior to that, he had given a letter in terms of Ex.D.3 for modification of the plan for the commercial purpose.
24. When such being the case, though the plaintiff disputes Ex.D.6, on perusal of the same, it is clear that possession has been handed over. The plaintiff did not deny Ex.D.6 was not given. Under such circumstances, though the Court below did not discuss all those while passing the judgment, it is evident on record that after the due negotiation, after disposal of the writ petition filed by the plaintiff, both parties have entered into a settlement and consequently executed Ex.P.8. Hence, now it cannot be contended that the same is obtained by playing undue influence or coercion.
25. The plaintiff himself given the representation in terms of Ex.D.1 and also in terms of Ex.D.3, so also given undertaking in terms of Ex.D.2 and now he cannot contend that he was compelled to execute the gift deed. The plaintiff relies upon Ex.P.7- agreement to lease and the same was entered in the month of March 2000. It is also important to note that gift deed came into existence in the month of June 2000, but prior to the execution of gift deed, plaintiff himself has approached the defendant by giving representation in the year 1999 itself in terms of Exs.D.1 and D3 and also given undertaking in the month of October 1999 itself. When such being the circumstances, I do not find any force in the contention of the plaintiff that Ex.P.8 was executed on the compulsion of the defendant. The very contents of Ex.D.1 and Ex.D.3 which were confronted to P.W.1 during the course of cross-examination are admitted and accepted and got marked as exhibits. Hence, the very contention of the plaintiff cannot be accepted.
26. The very contention of the respondent that there are no materials to prove the coercion and undue influence is supported by the document Exs.D.1 to Ex.D.3. Learned counsel appearing for the respondent also would contend that only after due deliberation, the parties have entered the gift deed in terms of Ex.P.8. It is important to note that no doubt, the contents of Ex.P.8 is clear that gift deed is executed in order to obtain the occupancy certificate and the plaintiff got the benefit by executing the document Ex.P.8 in respect of usage of two basement floors and now he cannot blow hot and cold that the same is obtained by coercion and undue influence.
27. I would like to quote the judgment of the Hon’ble Apex Court in the case of R.N.GOSAIN VS. YASHPAL DHIR reported in (1992) 4 SCC 683, wherein it has been held that once the documents have been accepted and acted upon, a person cannot at one time accept the said documents as valid and thereafter, in order to secure some other advantage, he cannot deny the same. Hence, the plaintiff cannot approbate and reprobate that when once he accepts the transaction as valid and taken advantage, again he cannot be permitted to challenge the validity of the said gift deed. The Court below considered both oral and documentary evidence and given anxious consideration while appreciating the evidence on record. Hence, I do not find any error committed by the Court below. In order to reverse the finding of the Trial Court, there must be a cogent evidence to show that the Court below has ignored the materials available on record, and only under such circumstances, the Appellate Court can reverse the findings. Therefore, there is no merit in the appeal.
28. In view of the discussions made above, I pass the following :-
ORDER The appeal is dismissed.
Sd/- JUDGE PYR