IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY R.F.A. No.1786 OF 2014 BETWEEN:
M/s. Civil Aviation and Meteorological Department Employees Co-operative House Building Society Ltd., Represented by its Secretary, Presently having its office at No.71, Sri Kala Nilaya, 10th Main, 3rd Cross, Near CBI Office, Ganga Nagar, Bangalore 560 024.
(By Sri. C.M. Nagabhushana, Advocate) AND:
1. S. Sridhar, Aged about 59 years, S/o. Late O. Sudarshanam.
2. Smt. M.M. Sudha, Aged about 53 years, W/o. S. Sridhar.
3. S. Shreyas, Aged about 28 years S/o. S. Sridhar.
…Appellant All are residing at N-10, “B” Street, Sheshadripura, Bangalore. 560 020.
(By Sri. Udaya Holla, Senior Counsel for Sri. Bayya Reddy for C/Respondents) …Respondents **** This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908, against the judgment and decree dated:28-08-2014 passed in O.S.No.2203/2008 on the file of XI Additional City Civil Judge, Bangalore City (C.C.H.8), dismissing the suit of the plaintiff for specific performance with costs.
This Regular First Appeal having been heard and reserved on 15-10-2019, coming on for pronouncement of judgment, this day, the Court delivered the following:
J U D G M E N T This is a plaintiff’s appeal. The suit of the plaintiff against the present respondents for the relief of specific performance filed in O.S.No.2203/2008 in the Court of the learned XI Additional City Civil Judge, Bangalore City (C.C.H.8) (hereinafter for brevity referred to as the “Trial Court”) came to be dismissed by the judgment and decree of the said Court dated 28-08-2014.
Challenging the said judgment and decree, the plaintiff has preferred this appeal.
2. The summary of the case of the plaintiff in the Trial Court was that, the plaintiff – M/s. Civil Aviation and Meteorological Department Employees Co-operative House Building Society Limited (hereinafter for brevity referred to as the “Society”) through one Sri. O. Sudarshanam, the father of the first defendant who was the absolute owner in possession and enjoyment of the agricultural land measuring 02 acres 12 guntas in Survey No.1/3 of Geddalahalli village, Kasaba Hobli, Bangalore North Taluk, Bangalore, got it converted from agricultural tenure to non-agricultural use for the purpose of construction and formation of residential sites. The said late Sri. O. Sudarshanam met the office bearers of the plaintiff – Society with a proposal of sale of few sites to be formed by him in the layout, to the Society. The said proposal was accepted by the plaintiff – Society. A communication through a letter dated 25-01-1973 was addressed by late Sri. O. Sudarshanam. It was agreed that he shall convey sital area of 28,757 Sq. ft. at the market value of `28/- per sq.ft. including all development charges. An advance amount of 50% of the value was also agreed between the parties. It was further agreed that the remaining extent of land in the same Survey No.1/3 of Geddalahalli village measuring 34,576 sq.ft. was also agreed to be sold to the plaintiff – Society as and when the Society finds it convenient to purchase the same at the market value prevailing at that time. The said late Sri. O. Sudarshanam formed a private layout by forming thirty-five (35) residential sites of different dimensions. Out of those sites, he sold fourteen (14) sites in all measuring 28,757 sq.ft. in favour of the plaintiff - Society under a registered Sale Deed dated 22-08-1973.
It is further the case of the plaintiff - Society that, in pursuance of the agreement, late Sri. O. Sudarshanam gave a proposal to the plaintiff – Society and it was accepted by the plaintiff - Society. An Agreement was entered into between the plaintiff - Society and late Sri. O. Sudarshanam on 30-06-1974, regarding the sale of remaining sital area of 34,576 sq.ft. to the plaintiff – Society. After taking into consideration the road, common area and the land to be reserved for further development, the total area that was agreed to be conveyed to the plaintiff - Society was coming to an extent of 71,431 sq.ft.
It was further the contention of the plaintiff – Society that as per the agreement dated 30-06-1974, plaintiff –Society was required to pay at the rate of `40/- per sq.ft. to the balance extent of the land measuring 31,270 sq.ft. amounting to `1,39,000/- and at the rate of `30/- per sq.ft. for 1,500 sq.ft. and for low income group amounting to `5,000/-. Thus, the plaintiff - Society was required to pay a sum of `1,44,000/- as sale consideration amount to late Sri.O. Sudarshanam. Accordingly, a Promissory Note was executed by the plaintiff - Society in favour of the said late Sri. O. Sudarshanam.
It was further the contention of the plaintiff - Society that the layout so formed by Sri. O. Sudarshanam being a private layout, required necessary approval from the City Improvement Trust Board (hereinafter referred to as ‘CITB’ for short) to which the plaintiff - Society had paid a sum of `70,240/- on 06-04-1973 as layout charges for the entire extent. The plaintiff - Society was in constant touch and in correspondence with the Bangalore Development Authority (henceforth referred to as “BDA” for brevity) (a successor to CITB) for approval of the layout. The Sale Deed in favour of the plaintiff – Society could not be obtained because of the Urban Land (Ceiling and Regulations) Act, 1976 (hereinafter for brevity referred to as the “ULC Act”) coming into force. However, in the meantime, the BDA had collected in total, a sum of `1,02,193-50 as layout charges for the entire 02 acres 12 guntas of land in Survey No.1/3 of Geddalahalli village, Bangalore North Taluk, Bangalore. The possession of the land was with the plaintiff – Society since then.
It was further the case of the plaintiff - Society that, the BDA modified the layout plan in the year 1976 and released fourteen (14) sites in favour of the plaintiff – Society, which Society, in turn, executed Sale Deeds of those fourteen sites in favour of its members. Since the land that was required to be conveyed to the plaintiff - Society was exceeding 1,000 square meters, a permission under ULC Act was required to be obtained. In that regard, a representation made by late Sri. O. Sudarshanam to the competent authority seeking permission and exemption under the ULC Act was not considered favourably by the Authority. In the meantime, during the year 1978, the BDA proposed for acquisition of the land measuring 02 acres 12 guntas in Sy.No.1/3 of Geddalahalli village for formation of ‘Raj Mahal Extension, II Stage’ and also a final Notification dated 02-08-1978 under Section 17 (1) of the B.D.A. Act was issued which was challenged by Sri. O. Sudarshanam, in the High Court of Karnataka, in Writ Petition No.17347/1979. The said writ petition came to be allowed by this Court by its orders dated 26-08-1985 and 09-09-1985 by quashing the said final Notification.
The plaintiff – Society further contended that it also made an application to the Government on 14-12-1988. Since the Government did not consider the said application in time, the plaintiff – Society filed Writ Petition No.20808/1989 before the High Court of Karnataka, which, by its order dated 22-11-1989 directed the Government to dispose of the application filed by the plaintiff - Society in accordance with law. Subsequent to the said order, the Government vide its order dated 20-12-1991 was pleased to accord exemption under the ULC Act in respect of the land measuring 6,524 sq.meters in Survey No.1/3 of Geddalahalli village, Bangalore North Taluk, Bangalore, held by late Sri. O. Sudarshanam and permitted him to sell the same in favour of the plaintiff - Society with respect to which the BDA had already approved a layout plan. Thereafter, the plaintiff - Society approached BDA for restoration of the remaining portion of the land in Sy.No.1/3 of Geddalahalli village. It also called upon Sri. O. Sudarshanam to complete the sale transaction in compliance with the Government of Karnataka order dated 20-12-1991. The said late Sri. O. Sudarshanam though promised that, he would execute the Sale Deed with respect to the remaining portion of the land, but filed Writ Petition No.37952/1992 against the State of Karnataka, Bangalore Development Authority and the plaintiff – Society, which came to be allowed by the High Court of Karnataka by its order dated 09-09-1996, wherein it observed that the plaintiff – Society, if has got any agreement, it was open for it to enforce the terms of the agreement as against the petitioner (Sri.O. Sudarshanam) before the appropriate forum. Thereafter, the said late Sri. O. Sudarshanam met one of the office bearers of the plaintiff - Society and expressed that he would execute the Sale Deed in terms of the agreement subject to the plaintiff - Society paying 10% higher price and the said proposal of late Sri. O. Sudarshanam was under negotiation between the parties. Accordingly, late Sri.O. Sudarshanam was required to convey site Nos.1 to 17, 18, 19,27 and 33 totally measuring 34,576 sq.ft. in the converted land bearing Survey No.1/3 of Geddalahalli village, Bangalore North Taluk, Bangalore, in favour of the plaintiff – Society.
The plaintiff – Society further contended that it was always ready and willing to comply with the terms of the agreement and the plaintiff - Society by its notice dated 11-06-2007, called upon the defendants who are the legal heirs of late Sri. O. Sudarshanam to execute the Sale Deed. The defendants in their reply dated 21-06-2007 denied the demand made by the plaintiff – Society, which constrained the plaintiff to institute a suit against the defendants. With this, the plaintiff –Society sought for a direction to the defendants for the specific performance of the agreement dated 30-06-1974.
3. In response to the summons served upon them, the defendants appeared through their counsel and defendant No.1 filed his Written Statement which was adopted by defendants No.2 and 3. The defendant No.1 in his Written Statement admitted as true that his father – late Sri. O. Sudarshanam had sold fourteen (14) sites to the plaintiff – Society under a registered Sale Deed dated 22-08-1973 as averred in the plaint. However, he denied that there was any agreement with respect to the balance of the land measuring 34,576 sq.ft. and that there was any agreement between his father - late Sri.O. Sudarshanam and the plaintiff – Society on 30-06-1974 for the sale of the said land. Apart from denying late Sri.O. Sudarshanam entering into any agreement with the plaintiff – Society on 30-06-1974, the defendant No.1 also contended that the alleged agreement does not fulfill any of the ingredients of a sale agreement of an immovable property. The same is not on the requisite stamp paper and not attested by any witness regarding the execution of the agreement. It does not even disclose as to who is the person who represents the plaintiff – Society and whether it includes the successors of the plaintiff - Society and the defendants. He contended that the said document is not a genuine document.
The defendant No.1 further contended that in the year 1974, the BDA was not all in existence since it came into existence only in the year 1976. Therefore, mentioning of the name of BDA in the document further strengthens the defence of the defendants and nullifies the plaintiff’s case. He also contended that even considering the sale price shown to have been agreed to between the parties in the said document, the same gives rise to further suspicion since even according to the plaintiff – Society, the total amount works out to `12,96,040/-, whereas the land owner (late Sri.O. Sudarshanam) alleged to have been intending to sell such a big area by taking a Promissory Note from the plaintiff - Society for a sum of `1,44,000/-, is a most unbelievable story. The defendant further denied the plaint averment that it was the plaintiff - Society who had paid the layout charges of a sum of `70,240/- to BDA on behalf of late Sri.O. Sudarshanam. He further denied that the plaintiff – Society was put in possession of the suit schedule property.
The defendant No.1 also contended that he had no knowledge about the plaintiff - Society filing an application dated 14-12-1988 to the Government of Karnataka seeking permission and exemption under the provisions of the ULC Act for purchase of sites in Sy.No.1/3 of Geddalahalli village. He stated that since the alleged permission from the Government under the ULC Act was obtained behind the back of late Sri.O. Sudarshanam, a writ petition in W.P.No.37952/1992 was filed against the State Government, Bangalore Development Authority and the plaintiff -Society before the High Court of Karnataka. He denied that at any point of time, late Sri.O. Sudarshanam had promised the plaintiff – Society that, he would execute the Sale Deed with respect to the alleged remaining portion of the land in favour of the plaintiff - Society. He also stated that he had filed a writ petition in W.P.No.38592/1992 as a bona fide purchaser of site No.9 in the same layout and one Sri. K.S. Subbaian who was the owner of site No.18 in the same Layout had also filed a suit for permanent injunction against BDA in O.S.No.2325/1985 and he had also filed a writ petition in W.P.No.38712/1992. In all those three writ petitions, the present plaintiff was also made as a respondent along with the State Government and the Bangalore Development Authority (BDA). The plaintiff - Society as a respondent had contested in all those writ petitions and those writ petitions were allowed by the High Court.
The defendant No.1 further denied that late Sri.O. Sudarshanam had expressed his willingness to execute a Sale Deed which was averred in para-23 of the plaint. The defendant No.1 admitted the receipt of a legal notice dated 11-06-2007 by him, however, he contended that a suitable reply notice dated 21-06-2007 was sent to the plaintiff – Society. Further, he stated that the suit is bad for non-joinder of necessary parties and late Sri.O. Sudarshanam had bequeathed a registered Will dated 02-09-1992, where under the remaining area in Sy.No.1/3 of Geddalahalli village was bequeathed in favour of the first defendant and the said defendant after becoming the absolute owner of the property subsequent to the death of Sri.O. Sudarshanam came into absolute ownership and possession of the property. Several structures have come up in the land and respective owners of those sites including the first defendant are running their business and enjoying the respective properties. With this, he prayed for dismissal of the suit.
4. Based on the pleadings of the parties, the Trial Court framed the following issues for its consideration:-
“1] Whether the plaintiff proves that late O. Sudarshanam executed an agreement of sale dated 30.6.1974 in favour of the plaintiff agreeing to sell the suit schedule property for sale consideration as mentioned in para No.10 of the plaint?
2] Whether the plaintiff proves that it has always been ready and willing to perform its part of contract?
3] Whether the suit is properly valued and court fee paid by the plaintiff is sufficient?
4] Whether the defendant proves that the suit is barred by time?
5] Whether the plaintiff is entitled for the relief of specific performance of contract?
6] What decree or order?”
5. In its support, the plaintiff- Society got examined two witnesses as PW-1 and PW-2 and got produced and marked documents from Exs.P-1 to P-60. The defendant No.1 got himself examined as DW-1 and got produced and marked documents at Exs.D-1 to D-5.
6. After hearing the arguments from both side, the Trial Court by its impugned judgment and decree dated 28-08-2014 answered issues No.1, 2 and 5 in the negative, issue No.4 in the affirmative, issue No.3 as ‘does not survive for consideration’ and it dismissed the suit of the plaintiff with costs. It is against the said judgment and decree passed by the Trial Court, the plaintiff - Society has preferred the present appeal.
7. Lower Court records were called for and the same are placed before this Court.
8. Heard the arguments of the learned counsel for the appellant/plaintiff- Society and learned Senior Counsel for the respondents/defendants.
9. Perused the materials placed before this Court including the memorandum of appeal and the impugned judgment.
10. For the sake of convenience, the parties would be henceforth referred to with the ranks they were holding before the Trial Court respectively.
11. After hearing the arguments of the learned counsel for the parties, the points that arise for my consideration in this appeal are:-
1] Whether the plaintiff - Society has proved that late Sri. O. Sudarshanam had executed an agreement of sale dated 30-06-1974 in its favour, agreeing to sell the suit schedule property for a valuable and specified consideration?
2] Whether the plaintiff-Society has proved that it was always ready and willing to perform its part of the contract?
3] Whether the plaintiff-Society is entitled for the relief of specific performance?
4] Whether the judgment and decree under appeal warrants any interference at the hands of this Court?
12. It is not in dispute that the plaintiff is an Employees Co-operative House Building Society Limited, registered under the provisions of the Karnataka Co- operative Societies Act, 1959 (hereinafter for brevity referred to as “KCS Act”). It is the contention of the plaintiff - Society that, late Sri. O. Sudarshanam who is the father of the first defendant being the owner of land in Survey No.1/3 of Geddalahalli village, Bangalore North Taluk, Bangalore and measuring 02 acres 12 guntas approached the plaintiff – Society with a proposal that if the plaintiff - Society assists him, he would form a layout of residential sites in his said land and would sell the sites to the plaintiff- Society. The said proposal was accepted by the plaintiff - Society. In that regard, fourteen (14) residential sites were conveyed to the plaintiff - Society by the said vendor – late Sri.O. Sudarshanam under a registered Sale Deed. These facts have remained undisputed between the parties.
However, it is further the contention of the plaintiff - Society that, the remaining portion of Survey No.1/3 of Geddalahalli village, totalling to 71,431 sq.ft. was also agreed to be developed by vendor - Sri.O. Sudarshanam in the form of 34,576 sq.ft. as sital area, 26,523 sq.ft. as road area, 8,469 sq.ft. as community area and remaining 1,863 sq.ft. as the area reserved for future development. The said remaining land area of 71,431 sq.ft. was agreed to be purchased by the plaintiff- Society from the said late Sri. O.Sudarshanam at the cost of `1,44,000/-. In that regard, the parties entered into an agreement on 30-06-1974.
13. It is further the contention of the plaintiff - Society that since the layout to be formed by late Sri. O.Sudarshanam was a private layout, the same required approval from the CITB. As such, towards the layout charges and on behalf of the said Sri.O. Sudarshanam, the plaintiff - Society remitted initially a sum of `70,240/- to the CITB and subsequently it paid another sum of `30,760/- and once again a sum of `1,193-50, thus, in total, a sum of `1,02,193-50.
14. It is further the specific contention of the plaintiff – Society that it is at its instance and efforts, exemption from ULC Act was granted by the State Government with the condition that the land owner (late Sri.O. Sudarshanam) should sell the land in favour of the plaintiff – Society and the BDA also modified the layout plan suitably. As such, the remaining sites under the modified plan was required to be sold to the plaintiff - Society by the legal representatives of the original vendor - late Sri.O. Sudarshanam by accepting the balance consideration. It is this specific contention of the plaintiff that, there existed an agreement between the plaintiff - Society and late Sri.O. Sudarshanam dated 30-06-1974 and that the said Sri.O. Sudarshanam had agreed to sell the remaining sites exclusively to the plaintiff - Society for the sum said to have been agreed in the said agreement, which was seriously denied and disputed by the defendants who are the legal representatives of late Sri.O. Sudarshanam, in the Court below. As such, the crucial aspect that requires to be looked into is, about the alleged existence of an agreement for sale of the suit schedule property by late Sri.O. Sudarshanam in favour of the plaintiff-Society.
15. In order to prove its case, the plaintiff - Society got examined one Sri.G. Mathurbuteshwaran, who is said to be a member and Director of plaintiff- Society as PW-1. The said witness in his Examination-in- chief in the form of affidavit evidence under Order XVIII, Rule 4 of the Code of Civil Procedure, 1908, has reiterated the contentions taken up by the plaintiff in its plaint. He also stated that the proposal for sale of sites by late Sri.O. Sudarshanam was made to the plaintiff - Society to its office bearer by name Mr. A.R.V. Ramaiah. He also stated that the said proposal of late Sri.O. Sudarshanam was accepted by the Society and the Society proceeded further in making payment towards the layout charges and also getting exemption under the ULC Act, which was the requirement as on that date.
Reiterating the plaint averments about the filing of Writ Petition No.20808/1989 by the plaintiff – Society, which enabled in getting clearance under ULC Act, the witness has stated that, it is because of the plaintiff Society’s efforts, the layout could be formed and sites could remain with the owner getting exemption under ULC Act. The witness has further stated that the vendor Sri.O. Sudarshanam challenged the issuance of clearance Certificate pursuant to the plaintiff Society filing Writ Petition No.20808/1989, wherein he was not a party, by filing Writ Petition No.37952/1992. The said writ petition came to be allowed by the order of the High Court of Karnataka dated 09-09-1996 and the order of the Government in HUD 13 CEC 89 dated 20-12-1991 came to be quashed.
16. It is further the evidence of PW-1 that thereafter, once again, the vendor - Sri.O. Sudarshanam approached the plaintiff - Society and promised that he will execute the Sale Deed in terms of the agreement subject to the plaintiff - Society paying 10% higher price. The plaintiff - Society wrote letters to the said Sri.O. Sudarshanam and also to his son - Sri. S. Sridhar (DW-1) to complete the sale transaction. However, though the plaintiff Society was ready and willing to comply the terms of the agreement, the defendants did not, which constrained the plaintiff to institute the suit.
17. PW-1 got produced and marked documents from Exs.P1 to P-49 as below:-
Ex.P-1 is the resolution passed in plaintiff-Society authorising PW-1 to depose in this case; Ex.P-2 is the letter dated 18-04-1992 written by CITB; Ex.P-3 is the office copy of reply given by Sri. O. Sudarshanam to Ex.P2; Ex.P-4 is the letter dated 25-01-1973 written by O. Sudarshanam to plaintiff – Society; Ex.P-5 is the letter of CITB, Bangalore dated 27-09-1974; Ex.P-6 is the letter of CITB, Bangalore dated 26-11-1974; Ex.P-7 is the letter of BDA, Bangalore dated 23-12-1976; Ex.P-8 is the letter of BDA dated 10-01-1977; Ex.P-9 is the letter of BDA dated 12-11-1987; Ex.P-10 is the letter of BDA dated 02-06-1977; Ex.P-11 is the letter written by plaintiff- Society to BDA dated 02-10-1978;
Ex.P-12 is the office copy of letter given by plaintiff to BDA; Ex.P-13 remittance challan copy of the BDA dated 27-01-1994; Ex.P-14 is the letter written by plaintiff- Society to BDA dated 19-09-1997; Ex.P-15 is the letter written by plaintiff Society to BDA dated 23-04-1977; Ex.P-16 is the draft agreement of sale with alleged letter dated 29-04-1977 (Ex.P-15); Ex.P-17 is the letter dated 26-09-1978 written by plaintiff- Society to Special Deputy Commissioner; Ex.P-18 is the Letter dated 08/14-12-1998 addressed to the Commissioner, BDA and also Secretary, HUD Department, Bangalore; Ex.P-19 is the order copy in W.P.No.20808/1989; Exs.P-20 to 26 are the seven copies of letters written by plaintiff Society to Sri. O. Sudarshanam; Ex.P-27 is the conversion sanctioned certificate issued by the office of the Tahsildar, Bangalore North Taluk, Bangalore dated 22-04-1970 in respect of Sy.No.1/3 of Geddalahalli village; Ex.P-28 is the letter written by Sri. O Sudarshanam to plaintiff dated 25-01-1973, Ex.P-29 is the demand notice sent by CITB dated 06-04-1973; Ex.P-30 is the demand notice dated 26-04-1974 issued by CITB; Exs.P-31 and P-32 are the two challans; Ex.P-33 is the original Sale Deed dated 22-08-1973 executed by late Sri.O. Sudarshanam in favour of member of plaintiff Society in respect of the sites; Ex.P-34 is the agreement of sale dated 30-06-1974; Ex.P-35 is the map dated 22-08-1973; Ex.P-36 is the modified plan of BDA dated 23-12-1976; Ex.P-37 is the letter written by BDA to plaintiff Society dated 29-08-1977; Exs.P-38 and 39 are the two letters sent by plaintiff Society, both dated 19-09-1977 to BDA; Ex.P-40 is the office copy of letter dated 28-11-1978 written by Sri. O. Sudarshanam to the Commissioner and Secretary, Housing and Urban Development Department, Government of Karnataka; Ex.P-41 is the notice issued by BDA dated 29-11-1978; Ex.P-42 is the postal cover for having sent notice Ex.P-14; Ex.P-43 is the office copy of the letter written by plaintiff-Society to BDA dated 14-12-1988; Ex.P-44 is the proceedings of Government of Karnataka dated 20-12-1991; Ex.P-45 is the office copy of letter written by plaintiff Society to BDA dated 23-12-1991; Ex.P-46 is the acknowledgment given by BDA; Ex.P-47 is the office copy of letter dated 02-11-1992 written by plaintiff Society to Sri. O. Sudarshanam; Ex.P-48 is the office copy of legal notice dated 11-06-2007 sent by plaintiff Society; Ex.P-49 is the reply given by defendants to the notice of plaintiff dated 21-06-2007.
The witness was subjected to a detailed cross- examination, wherein he adhered to his original version. He not only admitted as true that as on 26-11-1974, BDA was not in existence, but also admitted that Ex.P-34 is neither on a stamp paper nor a registered document. He denied that Ex.P-34 is a concocted and a fabricated document. He expressed his ignorance that in all the three writ petitions, i.e. W.P.No.38592/1992, W.P.No.37952/1992 and Writ Petition No.38712/1992, there was any mentioning about the plaintiff Society having an agreement of sale with late Sri.O. Sudarshanam.
The witness also stated that the erstwhile Secretary of the plaintiff – Society by name Sri.P.H. Krishnamoorthy might have sent a letter dated 22-08-1973 as per Ex.D-3 to late Sri.O. Sudarshanam.
18. The plaintiff- Society examined one Sri.V. Balanarasimha, its paid Secretary since 14-09-2005 as PW-2. The said witness in his Examination-in-chief in the form of affidavit evidence has corroborated what PW-1 has stated in his Examination-in-chief. He has deposed on similar lines as that of PW-1. The witness has also stated that the plaintiff Society and the defendants had entered into an agreement dated 30-06-1974 as per Ex.P-34. He has stated that as per the said agreement, late Sri.O. Sudarshanam, subsequently, his legal representatives were liable to sell the remaining sites to the plaintiff Society. PW-2 got marked Exs.P-50 to P-60(a) in support of his evidence including three office copies of letters of correspondence made to CITB and Government of Karnataka at Exd.P-51 to P-53; draft
Development Department, running into 193 pages at Ex.P-56; the endorsement issued by the BDA in favour of the plaintiff Society on the application filed by it under RTI Act at Ex.P-57; audit report of the plaintiff Society for the year 1988-89 at Ex.P-58; a copy of the layout plan at Ex.P-59 and a file said to be containing documents said to have been issued by the Department of Housing and Urban Development and running into ten pages, at Ex.P-60. In his brief cross-examination, the denial suggestions made to him were not admitted as true by the witness.
19. The defendant No.1 - Sri.S. Sridhar got himself examined as DW-1, who also in his examination- in-chief in the form of affidavit evidence has reiterated the contentions taken up by the defendants in their Written Statement. Being the family member of remaining defendants, he represented the other two defendants also in his evidence. He stated that being the son of late Sri.O. Sudarshanam, he was acquainted with the handwriting and signature of his late father who died on 02-08-2001 and contended that no documents produced by the plaintiff Society said to have been signed by his father were executed by his father. The witness stated that his father, no doubt, was the owner of the land in Survey No.1/3 of Geddalahalli village and formed layout in the said land by forming in all thirty- five (35) residential sites wherein he sold fourteen (14) sites under registered Sale Deed dated 22-08-1973 in favour of the plaintiff Society as per Ex.P-33, but denied that his father had agreed to sell the remaining sites also to the plaintiff-Society and in that regard, his father had entered into an agreement with the plaintiff-Society. He stated that his father had not joined the plaintiff in the plaintiff-Society’s alleged correspondences with the BDA, as such, those correspondences, more particularly, the signature at Ex.P-16(a) alleged to be of his father’s was not that of his father. He stated that Exs.P-34 to Ex.P-40 are all created documents. He specifically contended that the date mentioned at Ex.P-34 as 30-06-1974 itself goes to show that the said document is a concocted document, for the reason that, as on the said date, the Bangalore Development Authority (BDA) was not in existence at all. Therefore, mentioning of the letters “B.D.A.” in Ex.P-34 goes to show that the alleged sale agreement is not a genuine document. The witness further deposed that after receipt of the notice at Ex.P-47 dated 02-11-1992 caused by the plaintiff - Society, himself, his father late Sri.O. Sudarshanam and one Sri.K.Subbaian filed three separate writ petitions in Writ Petition No.38592/1992, Writ Petition No.37952/1992 and Writ Petition No.38712/1992 against Government of Karnataka, Bangalore Development Authority and the plaintiff-Society challenging the Government Order dated 20-12-1991 at Ex.P-44 and all the three writ petitions in which plaintiff Society was a party, the Court quashed the Government Order dated 20-12-1991 obtained by the plaintiff Society behind the back of the owner of the land i.e. Sri.O. Sudarshanam as per Ex.P-44 and the said common order of the High Court dated 09-09-1996 was marked by the witness at Ex.D-1. He also stated that in the said writ petitions, the High Court has only stated that if the Society has got any agreement to sell in its favour, it is open for the said Society to enforce the alleged agreement as against the petitioners before the appropriate forum. The witness got produced and marked documents from Exs.D-1 to D-5, wherein Ex.D-2 is the certified copy of order in Writ Petition No.20808/1989 and dated 22-11-1989; Ex.D-3 alleged to be a letter of declaration by the plaintiff Society said to have been issued under the signature of its Secretary dated 22-08-1973; Ex.D-4 is an audit report in respect of the plaintiff- Society for the year 1996-97 to 2005- 06; Ex.D-5 is the audit report for the year 2006-07 of the plaintiff Society. The witness was put to a detailed cross-examination from the plaintiff’s side wherein the case of the plaintiff Society was put into the mouth of the witness. However, the defendant No.1 did not admit to all those suggestions as true. He adhered to his original version.
20. In the light of the above, the first point of argument of the learned counsel for the appellant/plaintiff-Society was that the several correspondences between the plaintiff-Society, CITB- BDA and late Sri.O. Sudarshanam, and more particularly, Exs.P-14 to P-26, P-28, P-29, P-31, P-38, P-39 and P-40 would clearly go to show that, there existed an agreement between the plaintiff-Society and the defendants with respect to sale of the suit schedule property by late Sri.O. Sudarshanam in favour of the plaintiff-Society.
21. As already observed above, it is not in dispute that, late Sri.O. Sudarshanam was originally the owner of the land measuring 02 acres 12 guntas in Survey No.1/3 of Geddalahalli village, Bangalore North Taluk, Bangalore. Since the defendants have admitted the contention of the plaintiff Society which is further corroborated by Ex.P-33, the fact that the said late Sri.O. Sudarshanam had sold the sites with the measurements shown in Ex.P-33 in favour of plaintiff- Society under a registered Sale Deed dated 22-08-1973 is also an undisputed fact.
22. With respect to the remaining land, the contention of the plaintiff Society is that, the said late Sri.O. Sudarshanam had agreed to sell the same also in favour of the plaintiff Society which has been seriously denied and disputed by the defendants.
23. It is also the contention of the plaintiff Society that, for formation of a private layout, at the instance of late Sri.O. Sudarshanam, the CITB (subsequently BDA) had demanded the layout charges from the said Sri.O. Sudarshanam which were paid by the plaintiff Society, as such, it goes to support the agreement at Ex.P-34.
24. The first of the document in the said series which are relied upon by the plaintiff Society is a letter dated 18-04-1972 at Ex.P-2 shown to have been issued by the Office of the Chairman, CITB, Bangalore and addressed to Sri.O. Sudarshanam. The said letter while referring to formation of a private layout in Survey No.1/3 of Geddalahalli village, has stated that the private layout will be sanctioned on the condition of Sri.O. Sudarshanam depositing advance tentative layout charges of a sum of `70,240/- and complying the other terms and conditions including late Sri.O. Sudarshanam executing an agreement (duly registered in the prescribed format).
25. Ex.P-3 is shown to be a letter by Sri.O. Sudarshanam to CITB, Bangalore, seeking for more time to pay the alleged demanded layout charges of a sum of `70,240/-. Admittedly, neither of these letters bears the signature of the author of the letter. As such, both these documents are without any authentication by the maker of the letter. The defendants have not admitted that either of these documents corresponds to or related to the alleged agreement at Ex.P-34.
26. The plaintiff Society has also produced one more letter in a letterhead of a business establishment said to be owned by late Sri.O. Sudarshanam and dated 25-01-1973. The said letter appears to show that Sri.O. Sudarshanam had intimated the plaintiff Society that he is willing to and prepared to sell the sital area of 28,757 sq.ft. at the rate of `28/- per sq.ft. in favour of the plaintiff-Society. Subsequent to the said letter, admittedly, the registered Sale Deed as per Ex.P-33 came to be executed between the vendor Sri.O. Sudarshanam in favour of the plaintiff Society. The said letter would have no role about the alleged further agreement between the parties as per Ex.P-34. Exs.P-5, P-6, P-7, P-8 and P-9 are some of the correspondences between the Office of the CITB and subsequently BDA with the plaintiff Society, regarding the payment of layout charges. All those correspondences would go to show that, the CITB has made correspondence with the plaintiff- Society with respect to the payment of layout charges and it has also stated that apart from the original amount of `70,240/-, for the delayed payment an interest of a sum of `5,584/- was also required to be paid which the plaintiff Society claims to have accepted and paid it to the CITB vide Exs.P-29 and P-31. Exs.P-10, P-11, P-12, and P-13 would further go to show that with respect to sanction and supply of water to the said layout, Bangalore Water Supply and Sewerage Board (BWSSB) had demanded a sum of `2,82,300/- which amount also was paid by the plaintiff Society in favour of BWSSB.
27. The plaintiff Society has also relied upon Ex.P-14, a letter dated 19-09-1977 by plaintiff Society to BDA which is said to be jointly signed by late Sri.O. Sudarshanam and the Honorary Secretary of the plaintiff Society. Ex.P-16 which is said to be a draft agreement (dated nil) shown to have been signed by the Secretary of the plaintiff Society as a first party and Sri.O. Sudarshanam, as one of the witnesses and a challan to CITB dated 26-04-1974 where the plaintiff Society is shown to have made a payment of `13,760/- towards estimated amount as the documents further prove the alleged existence of the agreement between Sri.O. Sudarshanam and the plaintiff Society for sale of the land. None of these documents on their own and independently no where whispers that late Sri.O. Sudarshanam had agreed to sell the remaining portion of the land, much less, a sital area of 34,576/- sq.ft. in favour of the plaintiff Society. Even the alleged payment of layout charges on two occasions once amounting to a sum of `70,240/- and second time, a sum of `30,760/- also would not give any inference that, there existed any agreement for sale of the remaining sites by late Sri.O. Sudarshanam in favour of the plaintiff Society.
28. Assuming for a moment that the plaintiff – Society had made those payments in favour of CITB or BDA, still, by mere such payments, an agreement for sale of any immovable property by late Sri. O.Sudarshanam in favour of the plaintiff – Society cannot be inferred. For the purpose of specific enforcement of an agreement for sale of an immovable property, a person who insists for specific performance should clearly establish the existence of an agreement viable for its specific performance. In the present suit, it is Ex.P-34 only which according to the plaintiff – Society is the agreement with respect to which the specific performance is sought for.
Ex.P-34 is reproduced here below in its entirety.
“Land Owner: Shri. O. Sudarshanam, Proprietor, Navbharat Press, No.10, Sirur Park B. Street Seshadripuram, Bangalore 20.
Extent of Land area S/No.
S/No.1/3 Geddalahalli Village, Bangalore North Taluk, Bangalore. Extent of land is 2 acres 12 guntas converted land vide conversion sanction certificate No.ALN.SR.1975-59/69-70 from the office of the Tahsildar Bangalore North Taluk, Bangalore dated 22-4-1970.
Boundaries for CAD & MET Layout:
East - Existing road to Geddalahally with developed area West - Tank North– Private property belonging to Shri.O. Sudarshanam S/No.1/2 South – private property S/No.1/4 Vide Sale Deed duly registered Sale Deed dated 22-8- 1973 which document has been registered as document number 1690 of 73/74 in book 6 of volume 2881 at pages 182 to 192 on 10-9-1973 in the office of the sub-registrar, north Taluk, Bangalore the above Society has purchased 28757 sq.feet for Rs.89460/-. Deal was on the basis of sital area only.
The extent of land to be purchased in the remaining portion of S/No.1/3 is 71,431 sq.feet, which consists of the following details:
Sital area .. 34576 sq.feet Road area .. 26523 “ Community area .. 8469 “ Reserved for the Future development .. 1863 “ Details of lthe proposed deal and modality of payment:
Remaining land area of 71431 sq. feet in S/No.1/3 has to be purchased at the cost of Rs.1,44,000/- by the Society, which makes up 2 acres 12 guntas of the CAD & MET Layout.
Agreement arrived between Society and the land owner Shri.O. Sudarshanam on the following points to effect the deal:
The rate on which to be purchased: For 31276 sq.feet @ Rs.40/-
For 1500 sq.feet @ Rs.30/- For low income group For 1800 sq.feet of site No.14 Where the well is located is not considered for the cost structure. Cost is calculated only on sital area.
Society has to give a promisary note for Rs.1,44,000/- in consideration of the above deal. The above amount bears no interest till the time it is completely paid by the Society to Shri.O. Sudarshanam. Society to pay the amount as and when the sites are disposed off to its members.
Owner Shri. O. Sudarshanam has agreed to pay the following and complete the remaining work on the layout.
1. Payment to be made towards water mains.
2. Construction of Stone wall towards water tank side and blasting rock towards Phut Kharab side and leveling up the ground.
3. Development charges if any beyond the amount already paid to B.D.A. towards layout.
4. Any increase or decrease in sital area by the virtue of plan being revised should be adjusted accordingly in the cost structure towards the amount to be paid to owner.
Entire charges of Sale Deed papers and registration charges to be borne by the Society.
Land owner (A.R.V. Ramiah) Hon.Secretary”
29. According to the plaintiff Society, it (Ex.P-34) is an agreement entered into between the plaintiff Society and late Sri.O. Sudarshanam. It is the specific performance of this alleged agreement at Ex.P-34, the plaintiff Society has sought for in the suit.
30. Apart from denying that it is an agreement, the defendants have also denied the execution of the said document by late Sri.O. Sudarshanam. However, along with other documents which are said to have been carrying with it the signature of late Sri.O. Sudarshanam, even Ex.P-34 was also confronted to DW-1 in his cross-examination. The said witness if is not admitting the signatures confronted to him, was required to deny the suggestions made to him. However, instead of denying the signatures confronted to him, the witness refused to identify the signature.
31. As submitted by the learned counsel for the appellant/plaintiff Society in his argument, such a refusal by DW-1 to identify the signatures alleged to be of late Sri.O. Sudarshanam confronted to him, cannot be treated as denial of those signatures by the witness. As such, the argument of the learned Senior Counsel for the defendants that the alleged signatures of late Sri.O. Sudarshanam including the one at Ex.P-34 ought to have been referred for an handwriting expert’s opinion, is not acceptable.
32. Even otherwise also, assuming for a moment that Ex.P-34 carries with it the signature of late Sri.O. Sudarshanam, still, it has to be analysed as to whether Ex.P-34 can be called as an ‘agreement’ in itself.
33. A keen observation and a detailed study of Ex.P-34 fails to show that, anywhere the document unambiguously shows in it that the alleged parties to it have exchanged the offer and given their acceptance, resulting in a concluded contract. The parties even though appear to have shown their desire, but such a desire which lacks consensus ad idem (meeting of minds) calling it as its willingness to perform a particular act, in a particular manner, cannot be considered as an offer made from one party to another and the acceptance of such an offer by the other party, i.e. the offerree. Nowhere the said document mentions that the parties have ‘agreed’ to sell and to ‘buy’ the immovable property with respect to which a mention is made in the document. Without such an agreement which has to be a result of ‘meeting of minds’ of the parties, the document remains short of calling it to be an ‘agreement’. At the maximum, it can be a ‘note’ enabling the parties to enter into an agreement in a proper form.
34. Secondly and most importantly, the alleged agreement at Ex.P-34 is shown to have been dated 30-06-1974. Identifying the said document as the one executed on the said date i.e. on 30-06-1974 only, the plaintiff Society has sought for a specific performance of the said agreement. Apart from identifying the said document as an agreement entered into between late Sri.O.Sudarshanam and the plaintiff Society on 30-06-1974 only and at several places in the plaint mentioning the same as an agreement executed on 30-06-1974, the plaintiff proceeded to pray for specific performance of the said document, by once again calling it as an agreement dated 30-06-1974. Therefore, it is very clear that, from the beginning, it is the specific case of the plaintiff Society that the said document at Ex.P-34 is an agreement executed on 30-06-1974. The said date is handwritten in the said document.
35. Thirdly, in the said alleged agreement in the concluding paragraphs, it is shown that owner late Sri.O.Sudarshanam had agreed to pay the ‘development charges if any beyond the amount already paid to B.D.A.’ (emphasis supplied) towards layout. Admittedly in the year 1974, the Bangalore Development Authority, (BDA) was not in existence and it came into existence only in the year 1976 under the Bangalore Development Authority Act, 1976. Therefore, when the BDA itself was not in existence in the year 1974, it is beyond imagination that two years earlier to the establishment of the said Authority, the parties had made any payment towards the layout charges to the said Authority. Therefore, the argument of the learned counsel for the appellant/plaintiff-Society that mentioning of the date as 30-06-1974 at Ex.P-34 was purely an act of mistake, is not acceptable.
36. Fourthly, if according to the plaintiff Society the said date ‘30-06-1974’ was not the correct date, but by mistake the said date was mentioned upon it, then, the plaintiff at the earliest point of time, but not later than in its plaint, should have necessarily mentioned that the date shown in the alleged agreement (Ex.P-34) as ‘30-06-1974’ as the date of agreement was not the correct date and by mistake it has been wrongly mentioned. Admittedly, the plaintiff Society neither in its pleading nor in its evidence has whispered anything about it.
37. Fifthly, in case the said date ‘30-06-1974’ was not the correct date of agreement, then, it was incumbent upon the plaintiff Society to clearly mention the exact date of the alleged agreement at Ex.P-34 said to have been entered into between the parties. Even in this regard also, no attempt is made by the plaintiff Society either in its pleading or in its evidence to give any such clarification. On the other hand, as already observed above, the plaintiff both in its pleading as well in its evidence has constantly and continuously stated and reiterated that the agreement was entered into on 30-06-1974 only. Further, the said agreement is the one at Ex.P-34. On this serious irregularity in Ex.P-34, the entire document becomes more suspicious and does not inspire confidence to believe in it.
According to the plaintiff Society, as per the alleged agreement at Ex.P-34, late Sri.O.Sudarshanam had agreed to sell the remaining portion of the land in Survey No.1/3 of Geddalahalli village, measuring 71,431 sq.ft. which consists of a sital area of 34,576 sq.ft., road area of 26,523 sq.ft., community area of 8,469 sq.ft. and reserved area for future development which is 1,863 sq.ft. The same document further mentions that the rate at which the plaintiff was to purchase 31,276 sq.ft. was at `40/- totaling to `1,39,000/- and an area of 1,500 sq.ft for low income group was to be purchased at `30/- amounting to `5,000/-. Thus, in total, the sale value was shown at `1,44,000/-. But, no where the said agreement mentions in it as to whether the said rate of `40/- and `30/- was per square feet rate or for any other unit. However, the entire document speaks about the measurement of land under the alleged purchase under different descriptions like the sital area, road area, community area, etc. only in the unit of ‘square feet’. Even the total extent of the land to be purchased is also shown in the unit of ‘square feet’ only and not in any other unit like square yards or square meters etc. If the sital area of 31,276 sq.ft. is valued at `40/- per sq.ft. as per the agreement, then, the value of that portion of the land would come to `12,51,040/-. For another bit of 1,500/- sq.ft. at the rate of `30/-, the value would come to `45,000/-. The remaining area of 1,800 sq.ft. is shown to be a place where a well is located, as such, the same was not considered for the cost structure. Thus, the total consideration even according to the alleged valuation in Ex.P-34 would come to `12,96,040/-. That being the case, it is not understood as to how come the total sale consideration for a total area of 71,431 sq.ft. including a sital area of 34,576 sq.ft. was shown only as a sum of `1,44,000/-. Nowhere the plaintiff Society either in its plaint or any of the witnesses examined on behalf of the plaintiff Society have given any explanation in that regard.
As such also, the alleged agreement at Ex.P-34 prevents it from believing it to be a genuine document reflecting the intention of the parties.
38. It is also the argument of the learned counsel for the appellant/plaintiff Society that, pursuant to the agreement dated 30-06-1974, it is only the plaintiff Society who could able to get clearance under Urban Land Ceiling Act, as such, the land was saved only because of the plaintiff Society, otherwise, the land would have been vested with the Government. That also clearly establishes that the parties had entered into an agreement as per Ex.P-34.
39. Learned counsel for the appellant/plaintiff - Society also drew the attention of this Court to Ex.P-44 and submitted that the exemption accorded by the State Government from the Housing and Urban Development Department, under the ULC Act to the plaintiff Society, was only with a condition that, the land should be sold only to the plaintiff Society. That also makes it very clear that, late Sri.O.Sudarshanam had agreed to sell the said land in favour of the plaintiff under Ex.P-34.
40. Learned counsel for the appellant/plaintiff Society also drawing the attention of this Court to Ex.P-56 which is a copy of the proceedings of Housing and Urban Development Department, Government of Karnataka, with respect to its request for exemption from ULC Act made before it, further submitted that, an application seeking exemption earlier filed by late Sri.O.Sudarshanam was rejected by the said Department, however, the plaintiff Society made one more application and also filed a Writ Petition in W.P.No.20808/1989 and obtained a direction to the State Government for disposal of its application dated 14-12-1988 seeking exemption from the ULC Act.
41. Learned Senior Counsel for the respondents/ defendants in his arguments submitted that the very proceedings at Ex.P-56 by itself makes it very clear that, exemption for purchase of the land was accorded by the State Government not based upon the alleged agreement dated 30-06-1974 which is at Ex.P-34, but it was with respect to two other agreements, as such, the very contention of the plaintiff Society that there existed an agreement as per Ex.P-34 and exemption under ULC Act was also accorded with respect to the said agreement, finds no basis.
42. It is not in dispute that, since the land in question alleged to have been in possession of late Sri. O. Sudarshanam which was alleged to have been agreed to be sold to plaintiff Society was more than 1,000 square meters in its extent, an exemption from State Government under ULC Act was required to be obtained. It is also not in dispute that, late Sri. O. Sudarshanam had made an application to the State Government seeking such an exemption, however, he could not get such an exemption. The plaintiff Society also made a similar application to the State Government on 14-12-1988 but the State Government did not pass any order on its application, as such, the plaintiff Society filed a writ petition before this Court in Writ Petition No.20808/1989 seeking a direction to the State Government to consider and dispose of its application and to grant exemption to the balance extent of land in Survey No.1/3 of Geddalahalli village. This Court by its order dated 22-11-1989 disposed of the said writ petition directing the first respondent which was State of Karnataka, represented by its Secretary in the Department of Housing and Urban Development to dispose of the application of the petitioner (plaintiff Society) filed on 14-12-1988 on merits and in accordance with law, within forty-five days. A certified copy of the said order is marked at Ex.D-2. It is only thereafter the State Government accorded permission as per Ex.P-44.
However, it has to be noticed that, no where in the order at Ex.D-2, this Court has observed that, the plaintiff Society had entered into an agreement dated 30-06-1974 with late Sri.O. Sudarshanam for purchase of suit schedule property. Without making any observation about the alleged existence of such an agreement dated 30-06-1974, the Court had disposed of the matter by giving a direction to the State Government as above. Therefore, even through Ex.D-2 also, it cannot be inferred that there existed an agreement as per Ex.P-34 between the plaintiff Society and late Sri.O. Sudarshanam.
43. A perusal of the proceedings of the Government of Karnataka, Department of Housing and Urban Development, which is annexed to Ex.P-56 would go to show that, in the initial proceedings, the Office of the concerned Department has made an observation that, the applicant/plaintiff Society has not produced the agreement said to have been entered into with late Sri.O. Sudarshanam. Later at para-33 of its proceedings, an office note is made to the effect that, though the Society has placed an agreement, but in the agreement executed during 1977, there is no mention of the date, etc., and the agreement was also not on the stamp paper. The said note goes to show that, the agreement produced before the State Government was not the agreement at Ex.P-34 which is the subject matter of the present suit since Ex.P-34 is not of the year 1977 and it is dated 30-06-1974.
44. Interestingly, the very same proceedings further at para-48 goes to show that, the Secretary of the plaintiff Society has furnished copies of the agreements dated 25-01-1973 and 02-11-1977, in which agreements, the plaintiff Society and Sri.O. Sudarshanam are the parties. It is considering those two agreements, the State Government has proceeded to accord exemption vide its order dated 20-12-1991. Therefore, the very document produced by the plaintiff-Society, more particularly, Ex.P-56 itself shows that, according exemption under ULC Act, was not with respect to the alleged agreement dated 30-06-1974 under Ex.P-34, but it is with respect to two other agreements dated 25-01-1973 and 02-11-1977 entered into between the same parties i.e. plaintiff Society and late Sri.O. Sudarshanam. This not only goes to show that the argument of the learned counsel for the appellant/plaintiff - Society that ULC proceedings establishes the existence of the agreement dated 30-06-1974 is not acceptable, but also goes to show that there were several agreements entered into between the plaintiff Society and late Sri.O. Sudarshanam with respect to the land bearing Survey No.1/3 of Geddalahalli village. In that case, the alleged payment alleged to have been made by the plaintiff under Exs.P-29, P-30, and P-31 in total amounting to `1,02,193-50 was not with respect to the agreement at Ex.P-34 but it may be with respect to other agreements with late Sri.O. Sudarshanam. Since the plaintiff who is seeking the relief of specific performance is required to primarily establish the existence of a legally enforceable agreement, for its specific performance, it is incumbent upon the plaintiff to establish the existence of such an agreement. However, the discussions made hitherto would clearly go to show that Ex.P-34 is not that agreement.
45. The defendants in their support, produced a document dated 22-08-1973 which is shown to be a declaration and the resolution of plaintiff Society and got it produced and marked as Ex.D-3. It is their contention that, under the said Ex.D-3, the plaintiff Society has after acknowledging it purchasing the four items of sites has further declared that, it (plaintiff) has absolutely no right or claim over any other site in the said layout and Sri.O. Sudardshanm was legally and morally free to dispose of the same in any manner he likes.
46. Relying upon the said document, learned Senior Counsel for the respondents/defendants in his argument submitted that, the said document has not been specifically denied by the plaintiff Society and the document clearly goes to show that, the plaintiff Society itself has declared that it has no claim over any other site of the vendor Sri.O. Sudarshanam which leads to an inference that the alleged agreement at Ex.P-34 is a concocted one.
47. Per contra, learned counsel for the appellant/plaintiff Society in his argument submitted that the reliance placed upon Ex.D-3 by the respondents/defendants as well by the Trial Court was not correct. The author of the said document was not examined and the document is a concocted document.
He also submitted that subsequent correspondence of plaintiff- Society including Ex.P-55 shows that the plaintiff Society was interested in purchasing the site. Had really Ex.D-3 was in existence on the date shown in it, then, the defendants should have made a mention about it in their reply to the legal notice. He also contended that, if there was no agreement as per Ex.P-34, then, there was no necessity for the plaintiff to seek for issuance of a declaration as per Ex.D-3 .
48. Ex.D-3 is dated 22-08-1973 which is the very same day when several sites were sold and Sale Deeds were executed and registered by late Sri.O. Sudarshanam in favour of the plaintiff Society under the registered Sale Deed at Ex.P-33. It is on the very same day, Ex.D-3 is said to have been written by the plaintiff Society. PW-1 in his cross-examination dated 11-06-2012 has not denied that, Ex.D-3 was not written by the plaintiff Society. However, he has stated that, the previous Secretary of the plaintiff Society agreed for issuance of such a declaration as per Ex.D-3.
49. Even though according to the learned counsel for the appellant/plaintiff Society, Ex.P-55 and related documents show that the Society was interested in purchasing the remaining sites, but a perusal of Ex.P-55 along with Ex.P-56 would go to show that, the letter at Ex.P-55 was written by the plaintiff Society incidentally by the very same Secretary who is shown to have signed in Ex.D-3, but, the said letter is addressed to the Chairman, CITB, Bangalore, enclosing a draft agreement with the said letter. The said draft agreement which is at Ex.P-54 is also a draft agreement wherein the parties to the agreement have shown to be only the plaintiff, CITB and it no where mentions about the alleged vendor Sri.O. Sudarshanam. As such, by Ex.P-54 or Ex.P-55, it cannot be inferred that there was an agreement as per Ex.P-34 and that Sri.O.Sudarshanam had agreed to sell the remaining sites in Survey No.1/3 of Geddalahalli Village also to the plaintiff Society.
50. Even in the absence of Ex.D-3 also, since the burden is upon the plaintiff Society to establish the alleged agreement dated 30-06-1974 marked at Ex.P-34, it is for the plaintiff Society to show that, such an agreement as per Ex.P-34 was really in existence and agreed to between the parties to the suit. However, as observed above, the plaintiff could not able to establish the same.
51. A party seeking the relief of specific performance of contract/agreement, is also required to plead and prove that he has always been ready and willing to perform the essential terms of the contract which are put forth by him, other than the terms, the performance of which has been prevented or waived by the defendant.
52. Submitting that the plaintiff in the instant case has utterly failed to prove that it was ready and willing to perform its part of promise under the alleged agreement/contract, the learned Senior Counsel for the respondents/defendants relied upon two different judgments of two Division Benches of this Court.
In the first case, in Saraswwathi Ammal Vs. V.C. Lingam reported in I.L.R. 1993 Karnataka 427, in para.31 of its judgment, the Division Bench of this Court was pleased to observe that, the burden of proving the readiness and willingness to perform his part of the contract is entirely on the plaintiff and he cannot succeed in his claim for a decree for specific performance, by establishing that the vendor-defendant was avoiding to perform the contract; defendant’s failure to perform his part of the contract is the cause for the suit; but, to succeed in the suit, plaintiff has to prove his readiness and willingness.
In Smt. Padmini Raghavan Vs. Mr. H.A. Sonnappa, since dead by his LRs and others reported in I.L.R. 2014 Kar.233, in para.58 of the said judgment, the Division Bench observed that, mere assertion in the witness-box that he is ready and willing to perform his part of the contract or he is ready with balance sale consideration would not meet the requirements of law.
In the same judgment, at para-52, it has also observed that, the amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till the date of the decree, he must prove that he is ready and has always been willing to perform his part of the contract.
53. In the instant case, even after assuming that Ex.P-34 is an agreement between the plaintiff Society and Sri.O Sudarshanam, still, the plaintiff (PW-1) except pleading and stating in its examination-in-chief that it has always been ready and willing to perform its promise, no where has produced any material to show that it had the consideration amount payable to the defendants with it and the same was readily available with it at any point of time to pay it to the defendants. On the other hand, even as per Ex.P-34, the plaintiff Society claims that it has delivered a Promissory Note for the entire sale consideration. Even the alleged execution and handing over of the Promissory Note also has not been proved by the plaintiff Society. As such, it cannot be accepted that the plaintiff Society was ready and willing to perform its part of the contract.
54. Lastly, the contention of the respondents/
Court, which while answering issue No.4 in the affirmative has held that, the defendants have proved that the suit was barred by time.
The respondents/defendants in their Written Statement contended that, the suit of the plaintiff Society which is filed on 24-03-2008 is after thirty-four years of the alleged suit agreement which is dated 30-06-1974 at Ex.P-34 and the same has not been filed within three years from the date of knowledge of the first cause of action, as such, it is hopelessly barred by time. The Trial Court after a detailed discussion has accepted the said contention that the suit was barred by time.
55. Learned counsel for the appellant/plaintiff- Society in his argument submitted that, as per Article 54 of the Schedule to the Limitation Act, 1963, the period of limitation for specific performance of a contract is three years from the date fixed for performance, or, if no such date is fixed, when the plaintiff has noticed that performance is refused.
He further submitted that in the instant case, the plaintiff came to know about the refusal of the performance of the contract by the defendants only through the reply to its notice sent by the defendants vide their reply dated 21-06-2007 which is marked at Ex.P-49. As such, within three years from the said date, since the suit has been filed and hence the same is within limitation.
In his support, he relied upon the following judgments:-
Ram Karan and others Vs. Govind Lal and another reported in AIR 1999 Rajasthan 167 (Jaipur Bench) wherein the Rajasthan High Court observed in the case before it that, the relief of specific performance of a contract where no clause in contract stipulates the time for execution of Sale Deed was mentioned, the period of three years limitation commences when the notice of demanding registration of the Sale Deed or for performance of the contract was served on the respondents. Considering that the suit was filed within three years from the date of such notice, it was held that, the suit was not barred by time.
In Pancharan Dhara and others Vs. Monmatha Nath Maity (D) by L.Rs. & another reported in 2006 AIR Supreme Court Weekly 3020, the Hon’ble Apex Court in a suit for specific performance of a contract and with respect to limitation under Article 54 of the Schedule to the Limitation Act, 1963, was pleased to observe that time to file suit shall be deemed to start running only when plaintiff had notice that performance had been refused. The plea that limitation would begin to run from the date of perfection of title or that contract is vague so as to attract the provisions of Section 29 of the Contract Act, which was not raised before the Lower Court, cannot be raised for the first time in the appeal before the Supreme Court.
In Ahmadsahab Abdul Mulla (2) (dead) by proposed LRs Vs. Bibijan and others reported in (2009) 5 Supreme Court Cases 462, with respect to Article 54 of the Schedule to the Limitation Act, 1963, the Hon’ble Apex Court was pleased to observe that “date fixed for the purpose” under Article 54 of the Act is definitely suggestive of a specific date in the calendar and when “date is fixed”, it means that there is a definite date fixed for doing a particular act. Whether date for the performance was fixed or not is to be established with reference to materials and evidence brought on record.
56. Finally, the learned counsel for the appellant/plaintiff Society also relied upon a judgment in the case of Madina Begum and another Vs. Shiv Murti Prasad Pandey and others reported in 2016 AIAR (Civil) 791, wherein the Hon’ble Apex Court with respect to Article 54 of the Schedule to the Limitation Act, 1963, and in relation to the suit for specific performance of a contract was pleased to observe that, where the date is fixed for the performance, the limitation is three years from such date. But, where no such date is fixed for performance, limitation of three years would begin when the plaintiff has notice that the defendant has refused the performance of the agreement.
Relying upon these judgments, learned counsel for the appellant/plaintiff Society reiterated that in the instant case, for the first time it was only through reply to the notice which is at Ex.P-49, the defendants shown their refusal of specific performance of the agreement. As such, the limitation would begin from the said date of the reply notice which is on 21-06-2007. Thus, the suit filed in the year 2008 is well within limitation. However, the Trial Court without appreciating these facts has wrongly held that the suit was barred by time.
57. Learned Senior Counsel for the respondents/ defendants in his argument though admitted that, under Article 54 of the Schedule to the Limitation Act, 1963, the period of limitation of three years for specific performance of a contract begins from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused, but contended that in the instant case, the refusal was not made for the first time under Ex.P-49, but such a refusal was made as early as in the year 1992 itself, a mention about which can also be seen at Ex.D-1. As such, the suit is hopelessly barred by time which has been properly appreciated by the Trial Court.
In his support, he relied upon two judgments of the Hon’ble Apex Court and one judgment of the Andhra Pradesh High Court as below:-
In Rathnavathi and another Vs. Kavita Ganashamdas reported in (2015) 5 Supreme Court Cases 223 with respect to Article 54 of the Schedule to the Limitation Act,1963, the Hon’ble Apex Court was pleased to observe that, in a suit for specific performance of agreement for sale of immovable property, in the absence of fixed date of performance, the limitation starts from the date when the plaintiff had notice of refusal of performance.
Similarly in Venkappa Gurappa Hosur Vs. Kasawwa C/o. Rangappa Kulgod reported in (1997) 10 Supreme Court Cases 66, the Hon’ble Apex Court was pleased to observe that, in a suit for specific performance of the contract, where the date of performance is not agreed, the limitation period commences from the date the plaintiff realised that there was refusal to perform. In the said case, the Court also observed that the suit document was denied as early as in 1960. As a consequence, mere issuance of notice dated 22-08-1972 does not stop the running of limitation period. Once the same has begun to run, it runs its full course. Therefore, the suit having been filed after the expiry of three years from the date of knowledge of denial, by operation of Article 54 of the Schedule to the Limitation Act, the suit was hopelessly barred by time.
In B. Krishna Murthy Rao and another Vs. Smt.
C.S. Sakunthalamma reported in 1999(1) A.P.L.J. 299 (HC), a single Bench of the Andhra Pradesh High Court in para-10 of its judgment was pleased to observe as below:-
“As stated earlier in Article 54 of the Limitation Act, the word used “when the performance is refused”, the limitation starts running from that date but in the notice referred to above, the very existence of agreement was denied emphatically which goes to the route of the matter. If at all, the existence of the agreement is denied, the question of refusing to perform the part of the contract on the part of the plaintiffs – petitioners herein would not arise. Therefore, the denial made by the plaintiffs- petitioners herein has a greater force i.e., more force than the word ‘refused’. The existence of such alleged agreement is emphatically denied by the plaintiffs- petitioners herein and therefore the limitation has to be counted from the date of the reply notice issued by the plaintiffs-petitioners herein to the defendants-respondents herein i.e. from 14-7-1994.”
58. With the above, he submitted that in view of the above judgments, when the very existence of the agreement itself is denied by the defendants, as early as in the year 1992 itself, the plaintiff Society cannot contend that refusal was made for the first time in the year 2007 through Ex.P-49. As such, the suit is hopelessly barred by time.
59. The alleged agreement, the specific performance of which is sought for by the plaintiff Society is at Ex.P-34 and is shown as dated 30-06-1974. Admittedly the suit is not filed within three years from the said date. But the suit is filed on 24-03-2008. A perusal of Ex.P-34 goes to show that no specific date appears to have been fixed in the said document as the date for performance of the contract. A perusal at the narration in the same document would also go to show that, time was not the essence of the contract. As such, Article 54 of the Schedule to the Limitation Act, 1963 would be applicable which prescribes the period of limitation of three years from the date when the plaintiff had the notice that performance is refused.
60. Thus, it has to be seen as to when the plaintiff is said to have been notified regarding the refusal of performance by the defendants.
According to plaintiff Society, it was only through reply to its notice which reply at Ex.P-49 is shown to be dated 21-06-2007.
No doubt in the said reply, the defendants have categorically denied the very execution of the alleged agreement dated 30-06-1974 in favour of the plaintiff Society, but they have also refused the demand for specific performance of the said alleged agreement. If the said reply notice is taken as the notice of refusal which was given to the plaintiff for the first time, then, the suit that has been filed in the year 2008 falls within the period of limitation. However, the document at Ex.D-1 which is the certified copy of the order passed by a co-ordinate Bench of this Court in Writ Petition No.38592/1992 c/w. Writ Petition No.37952/1992 and Writ Petition No.38712/1992 also requires to be looked into.
61. As already discussed above, first two of those three writ petitions were instituted by the defendant No.1 - Sri. S. Sridhar and late Sri.O. Sudarshanam respectively against the Government of Karnataka, Bangalore Development Authority (BDA) and the plaintiff Society challenging the granting of exemption to the plaintiff Society herein under ULC Act, 1976. This Court while disposing of those writ petitions vide its order dated 09-09-1996 was pleased to observe in paragraph 4, a portion of which reads as below:-
“Learned counsel for the respondent contended that the petitioners have executed an agreement of sale in favour of the Society and therefore the Society has got every interest to make an application under Section 20 of the Act. This fact is disputed by the petitioner. If the Society has got any agreement, it is open for the Society to enforce the terms of the agreement as against the petitioner before the appropriate forum”
The above finding made by this Court as early as in September 1996 in the aforesaid writ petitions of the year 1992 would clearly go to show that, at the earliest point of time, between the years 1992 and 1996 itself, the present defendant No.1 and even late Sri. O. Sudarshanam as petitioners in first two of those three writ petitions had denied the very execution of the agreement by late Sri.O. Sudarshanam in favour of the present plaintiff Society (which Society was respondent in those two writ petitions). It is for the said reason, this Court not only observed that the petitioner had disputed the execution of the agreement, but also observed that in case the plaintiff Society contends that there existed any such agreement, it was open for the petitioner (Society) to enforce the terms of the agreement before the appropriate forum. Therefore, as early as in the year 1992, but not later than 1996 itself, the plaintiff Society had notice/knowledge that the respondents herein/defendants in the Trial Court have disputed the very existence of the alleged agreement of the year 1974. Thus, the notice of refusal to the plaintiff herein dates back not later than 1996. In such a case, the suit ought to have been instituted within three years from the date of such a denial of the very existence of the agreement by the present defendants who were the petitioners in those writ petitions. Admittedly, the present suit was filed in the year 2008, which is twelve years after the notice of refusal. Therefore, the Trial Court has rightly held that, the suit was barred by time.
62. From the above analysis, it is clearly established that the plaintiff Society has failed to establish that Sri.O. Sudarshanam had executed an agreement of sale dated 30-06-1974 in its favour agreeing to sell the suit schedule property for a valuable consideration to the plaintiff Society. Further, the plaintiff Society has also not able to prove that it was always ready and willing to perform its part of the contract. Added to that, the suit filed by the plaintiff Society for the relief of specific performance is barred by time. Therefore, the Trial Court has not only rightly denied the relief of specific performance in favour of the plaintiff Society but also aptly dismissed the suit of the plaintiff.
63. Since the said finding is based on cogent reasoning arrived at after appropriate appreciation of the materials placed before it, I do not find any scope for interference in it.
Accordingly, I proceed to pass the following:-
O R D E R [i] The appeal is dismissed;
[ii] The judgment and decree dated 28-08-2014 passed by the learned XI Additional City Civil Judge, Bangalore City (C.C.H.8), in O.S.No.2203/2008, is hereby confirmed;
Registry to transmit a copy of this judgment along with the Lower Court records to the concerned Trial Court, without delay.
In view of disposal of the main appeal, the interlocutory application - I.A.No.1/2019 does not survive for consideration.
Sd/- JUDGE BMV*