IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO REGULAR FIRST APPEAL No.274 OF 2008 BETWEEN:
SRI B V VENKATESH RAO, S/O LATE B AMRUTHA RAO, AGED ABOUT 56 YEARS, No.435, 94TH CROSS, KUMARASWAMY LAYOUT, 1ST PHASE, BANGALORE – 560 078. SHOWN IN THE CAUSE TITLE OF THE TRIAL COURT AS No.258, I FLOOR, II CROSS, CHANNAMMANAKERE ACHUKATTU, THYAGARAJANAGARA, BANGALORE – 560 028. ...APPELLANT (BY SRI KESHAV R AGNIHOTRI, ADVOCATE) AND:
SRI G JAISHANKAR, S/O. GURAPPA SHETTY, AGED ABOUT 34 YEARS, GROUND FLOOR, No.435, 94TH CROSS, KUMARASWAMY LAYOUT, I PHASE, BANGALORE – 560 078. …RESPONDENT (BY SRI T S MAHABALESHWAR, ADVOCATE) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH 41 RULE 1 OF CPC, CALL FOR RECORDS IN O.S.No.2474/2004 ON THE FILE OF THE XI ADDITIONAL CITY CIVIL JUDGE, BANGALORE CITY SET ASIDE AND REVERSE THE JUDGMENT AND DECREE PASSED BY THE TRIAL COURT DATED 12.12.2007 IN THE SAID SUIT.
THIS APPEAL COMING FOR FINAL HEARING ON THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the judgment and decree dated 12.12.2007 passed in O.S.No.2474/2004 on the file of XI Addl. City Civil Judge, Bangalore City, wherein the learned trial Judge decreed the suit for specific performance with costs and the defendant was directed to execute and register the sale deed in favour of the plaintiff in respect of the schedule property by receiving the balance sale consideration within three months from the date of decree and put the plaintiff in actual possession of the schedule property and also to handover the title deeds pertaining to the schedule property.
2. In order to avoid confusion and overlapping, the parties are deferred in accordance with their rankings before the trial court. Plaintiff filed suit in O.S.No.2474/2004 for specific performance of the sale agreement dated 13.11.2003 directing the defendant to execute and register the sale deed of the schedule property in favour of the plaintiff by receiving the balance sale consideration of Rs.2,00,000/- and also to deliver possession in terms of the agreement and also for the relief of permanent injunction as well as restraining the defendant, his agents, servants or anybody on his behalf from alienating or encumbering the schedule property in favour of third party and for costs of the suit.
3. The further facts of the case are that the defendant is the owner of the schedule property, which is a residential house bearing EWS House No.435, formed by Bangalore Development Authority, Kumaraswamy Layout, Bangalore, now coming within the jurisdiction of Bangalore Mahanagara Palike, Ward No.55, situated at 94th Cross, Kumaraswamy Layout, 1st stage, Bangalore, consisting of ground and first floor of RCC house. The sale agreement was effected by the defendant to counter the legal and necessities of the family for a total sale consideration of Rs.8,00,001/- on 13.11.2003 on which date, agreement was said to have been executed.
4. It is further claimed that the plaintiff paid an amount of Rs.50,001/- as an initial advance and he agreed to pay further advance amount of Rs.2,50,000/- and at that time, the defendant had to vacate the ground floor portion of the property and deliver the possession to the plaintiff. Insofar as the remaining sale consideration of Rs.5,00,000/- is concerned, it was to be paid at the time of registration of the sale deed. The time stipulated for execution of sale deed, as agreed between the parties, is three months from the date of the sale agreement. Accordingly on 27.11.2003, the plaintiff paid an advance amount of Rs.25,000/- by way of cash and the defendant handed over the possession of the ground floor portion of the schedule property to the plaintiff on that day according to the endorsement that was made on the agreement. Since, 27.11.2003, the plaintiff is stated to be in actual possession and enjoyment of the ground floor portion of the schedule property in part performance of the contract.
5. The plaintiff also claims to have made further payment of Rs.50,000/- by way of cheque drawn on Bank of Maharashtra, J.P.Nagar Branch on 09.12.2003 and to that effect the defendant has also made an endorsement over the suit sale agreement. Further, on 31.01.2004, the plaintiff has paid an amount of Rs.10,000/- by was of cash and also issued a cheque for Rs.2,40,000/- dated 31.01.2004. On that day the defendant has handed over the original possession certificate dated 27.01.2004 and the sale deed dated 27.01.2004 and an endorsement was also made on the agreement of sale on 31.01.2004. It is also claimed that on 05.02.2004 the defendant by returning the cheque dated 31.01.2004 for Rs.2,40,000/- and received a sum of Rs.2,40,000/- by way of cash from the plaintiff on the same day. Thus, the plaintiff totally has paid an amount of Rs.6,00,000/- of total sale consideration of Rs.8,00,000/- to that effect defendant has also made an endorsement on the agreement of sale. The balance amount payable by the plaintiff was Rs.2,00,000/- was to be paid at the time of registration of the sale deed.
6. The plaintiff, on 26.02.2004, approached the defendant and asked him to execute the registered sale deed of schedule property by receiving the balance sale consideration for which the defendant agreed and asked the plaintiff to wait near the Office of the Sub-registrar, Basavanagudi, Bangalore, with pay order towards stamp duty for execution and registration of the sale deed dated 27.02.2004. Accordingly, on that day the plaintiff had taken the pay order bearing No.132979 for Rs.31,360/- drawn in favour of the Sub-registrar, Basavanagudi, Bangalore towards stamp duty.
7. It is further stated that the plaintiff, his brother and two friends were waiting near the Sub- registrar’s Office with the pay order and the balance amount of Rs.2,00,000/- payable to the defendant and waited near the Office of the Sub-registrar till 5:30 p.m. but the defendant did not turn up and at 5:30 p.m. the plaintiff questioned the defendant, the defendant made an endorsement over the Xerox copy of the sale agreement and stated that he would execute the sale deed on 28.02.2004 at 2:30 p.m. and promised that he would come to the office of the Sub-registrar. Accordingly, even on 28.02.2004, the plaintiff, his brother and friends went to the Sub-registrar’s Office, Basavanagudi along with the pay order and the balance sale consideration amount, waited till 5:30 p.m. but the defendant intentionally failed to turn up to execute and register the sale deed.
Subsequently, when the plaintiff approached the defendant to execute the sale deed, the defendant went on postponing the same on one or the other ground.
8. The plaintiff claims that he has been ever ready and willing to perform his part of contract by paying balance sale consideration and to get the registered sale deed and also to meet the expenditure on stamp duty and registration. The defendant committed breach of contract, having received a substantial part of the sale consideration as stated above, on 20.03.2004 a legal notice was issued on behalf of the plaintiff through RPAD and the same is acknowledged and other notice through Certificate of Posting is also issued.
9. It is also stated due to inadvertence, in the agreement of sale, the measurement and boundaries of the schedule property have been wrongly mentioned.
The sale deed has not yet been executed in favour of the defendant, which has been subsequently executed on 27.01.2004, but it does not affect the identity of the property under the agreement of sale dated 13.11.2003. The defendant in order to deprive the plaintiff’s right and to escape from the contractual liability, started raising the same as a ground to avoid the liability. The agreement of sale is valid according to the plaintiff and the defendant is bound to execute the sale deed.
10. The defendant countered the pleadings of the plaintiff. The defendant admits the averments made in paragraph No.3, but he denies that he agreed to sell the schedule property to the plaintiff. In fact, the defendant agreed to sell the property measuring East to West 19 feet and North to South 30 feet, as such he denies the total measurement of the schedule property as claimed by the plaintiff and according to the defendant it is East to West 19 feet and North to South 30 feet. The defendant also admits the receipt of Rs.6,00,001/- from the plaintiff. Further the defendant also admits that he handed over the vacant possession of the ground floor premises on 27.11.2003 and the defendant is in possession of first and second floor of the property. Thus, one of the bone of contention between the parties is regarding the measurement.
The plaintiff agreed to purchase the property measuring 19 X 30 feet, thus the contention of the plaintiff regarding mentioning wrong measurement is not an accidental or error or mistake.
11. Regarding waiting near the Office of the Sub- registrar, readiness and willingness is concerned, the same is denied. The defendant further contends that he had filed a suit for permanent injunction in O.S.No.1509/2004 against the plaintiff. The defendant also has notified the earnest amount of Rs.6,00,001/- has been forfeited in view of the fact that the plaintiff had violated the terms of agreement of sale. The defendant was forced to take treatment for heart follow- up at Jayadeva Institute of Cardiology and he attributes the reason to the plaintiff.
12. The trial Court was accommodated with the following oral and documentary evidence on behalf of both the parties.
On behalf of Plaintiff:
PW.1: Jaishankar.
Ex.P.1 : Agreement of Sale.
Ex.P.1(a) to P.1(s): Signatures and Endorsements. Ex.P.2 : Endorsement Ex.P.2(a) & (b) : Signatures.
Ex.P.3: : Possession Certificate.
Ex.P.4: : Sale Deed.
Ex.P.5 : Copy of legal notice Ex.P.5(a) : Postal Acknowledgement. Ex.P.6 : Reply Notice.
On behalf of Defendant:
DW.1: B.A. Venkateshwara Rao Ex.D.1 : Complaint copy Ex.D.2 : Reply.
13. The trial Judge adjudicated the matter considering the readiness and willingness of the agreement on the part of the plaintiff and termination of the agreement as contended by the defendant and the entitlement for the relief of specific performance, the learned trial Judge in his wisdom found the answers to the issues in the affirmative and decreed the suit for specific performance.
14. The learned trial Judge has found that the averments of the defendant that plaintiff had violated the terms of the sale agreement, according to the defendant, the plaintiff without the permission dismantling the entire ground floor, damaged the property and hence, legal notice was sent on 13.11.2003 and canceling the said agreement. The learned trial Judge found this allegation of the defendant was neither tenable nor justifiable; insofar as the execution of the agreement is concerned, it is admitted. Thus, regarding the execution may be rightly there is no issue specifically cast on the onus of the plaintiff to discharge the burden, regarding the execution of the sale deed, the issues between the parties is regarding their intentions at the time of executing the sale deed.
15. Insofar as the sale consideration amount is concerned, Whether advance amount towards sale price or the total amount received in different phases to the extent of Rs.6,00,001/- and the balance payable being Rs.2,00,000/- are not disputed between the parties as the defendant has contended that he has cancelled the agreement, the onus is on him to establish further.
16. The another moot point for consideration would be, whether there is justification in defendant forfeiting the amount of Rs.6,00,001/- on the score that the plaintiff has altered the ground floor without the permission of the defendant.
17. Learned counsel for appellant Mr.Keshav R. Agnihotri would submit that the nature and circumstances of the contract whether the sale agreement involves two many complicated formalities puts defendant unfair disadvantage.
18. Learned counsel for appellant would submit that there was no readiness and willingness on the part of the respondent/plaintiff in the matter of specific performance of agreement. The claim that he was present before the office of the Sub Registrar waiting for the appellant/ defendant is not proper or it is false.
19. Insofar as the document that appears to be material are: The very agreement itself is marked as Ex.P1-Agreement of Sale. The said document is the primary one for the plaintiff to seek the relief of specific performance. It is not disputed out right by the defendant. On the other hand, contention of the defendant that the plaintiff had damaged the ground floor and hence the amount of advance of Rs.6,00,000/- was forfeited. The measurement differ and that the possession of the ground floor was given subsequent to the agreement. They all establish Ipso facto the sale agreement is not a matter of dispute. The grievance forwarded by the defendant is that, it is no more exists. Insofar as other documents are concerned, for example Ex.P3-Possession Certificate and Ex.P4-Sale deed reflect the animus to sell the property by the defendant in favour of the plaintiff. The agreement of sale is dated 13.11.2003 entered into between the parties at Bangalore. The schedule mentioned thereunder is as under:
“All that piece and parcel of the Residential House bearing No.435, Kumaraswamy Layout, Bangalore, measuring East to West 19’, North to South 30’’.
The preamble of the agreement in the first para at second page is necessary to be extracted which reads as under:
“Whereas the Vendor is the absolute owner and in lawful possession of the House bearing No.435, situated at Kuamrswamy Layout, Bangalore, measuring 19’x30’, having got allotted vide allotment Letter No.BDA/ADM/B6/435/82-83, dated 08.02.1983 as Provisional allotment by the then commissioner of BDA, Bangalore.
WHEREAS the Vendor is not able to manage the Schedule Property and to meet his legal family necessities hence he is desirous of disposing of Schedule Property by making the following representations:-
a) That the Vendor alone is the Sole and absolute owner of the Schedule Property and his title to the Schedule property is good, marketable and subsisting and that none else has any right, title, interest or share therein and that cost of good title shall be that of Vendor at all times both before and after sale:
b) That the Schedule property is free from mortgages, encumbrances, attachments, Court charges of any kind.
c) That he has not entered into any agreement or arrangement for sale of the Schedule Property.
Whereas, the Vendor has offered to sell the property to the Purchaser for a sum of Rs.8,00,001/-(Rupees Eight Lakh One only) and the Purchaser has agreed to purchase the same for the said sale consideration free from any kind of encumbrance.”
In Ex.P4 the correctness of the boundary is reflected. The boundary mentioned in the sale deed Ex.P4 in respect of the schedule property is bearing No.435 and its boundaries are as under:
“East By:- Passage West By:- Property No.436 North By:- Road South By:- Conservancy.
Together with 7 squares Ground and First Floor RCC house, Red oxide flooring, with all basic amenities”.
20. Learned counsel for appellant in this connection stated that the measurement agreed was 19 feet to 30 feet. In this connection, a perusal of a allotment letter and the description of boundaries make it amply clear that no portion of the schedule was retained by the appellant/defendant. Whatever was allotted it was sold. In this connection raising the calculation and theory of bifurcating the property has been never the case of the defendant at any point of time.
The legal notice is marked as Ex.P5, wherein, the defendant is asked to execute the registered sale deed of the schedule property and the notice is dated 20.3.2004 and it is replied as per Ex.P6.
The another point that was advanced is, the intention of the defendant was to sell the property allotted by the Bangalore Development Authority to the plaintiff and when the plaintiff is ready to purchase the allotted and sold by the Bangalore development Authority then there is no question of taking unfair advantage by the defendant.
21. According to the defendant, he agreed to sell the property measuring East- West 19 feet and North- Ssouth 30 feet. But not as per the measurement stated in the plaint schedule. In this connection, para 3 of the written statement shows that defendant has agreed to sell the property measuring East- West 19 feet and North-Ssouth 30 feet. The defendant has made an attempt to twist the facts and understanding of the case to suit to his convenience and started presenting the theory of 19 ft and 30 ft. In this connection, there is no whisper in the agreement for retaining the property nor it was animus at the time of entering into the agreement.
22. The contextual reading of the written statement shows that the allotment was not made to the defendant in two phases. The house property that was allotted and he has admitted that he has agreed to sell the property for Rs.8,99,999/- and now the remaining property in excess of 30 feet x 19 feet and cannot be held to be a separate property as per the text of the agreement agreed, possession certificate Ex.P3.
23. It is significant to state that insofar as property is concerned, the names were entered into for property No. 435. At no point of time, is there any separate property other than 435 and the boundaries to the East: drainage; West: road; North: Passage and South: 436.
The defendant has attempted to make use of inconsistency in making the claim of retaining the property which was practically not agreed upon nor was available.
Insofar as readiness and willingness is concerned, the defendant as stated by the plaintiff right from the date of entering into the agreement, payment of subsequent amount, receiving of possession are agreeable in principle, hence accepted.
24. The conduct of the defendant in forwarding lame defence is not appreciable. Regarding readiness and willingness, out of 8 lakh being the total sale consideration, Rs.6.00 lakh is already paid and the said amount of Rs.6.00 lakh the defendant claims as damage as he has forfeited the sale agreement. It is nether appears a proper justification nor a rational judgment. More particularly, the learned counsel for plaintiff submits that remaining amount of Rs.2.00 lakhs was also deposited in the execution side and the same is well within the knowledge of the defendant and plaintiff has no objection of any time for the defendant to receive the said amount. In the over all context and circumstances of the case, the defendant having admitted the agreement of sale and has taken up the special plea of division of property, cancellation of agreement, but has failed to establish the agreement as both admitted and established there is no ambiguity regarding the measurement, the conduct of the plaintiff has been proper be it regarding payment of sale consideration or paying the remaining amount for consideration. Appeal is devoid of merits and it is dismissed.
I.A.No.1/2008 is filed by the appellant under order 41 Rule 27 of CPC along with two documents namely, copy of the legal notice dated 1.3.2004 and the original courier receipt for the said notice having been served on the plaintiff and I.A.No.1/2019 under Section 151 CPC for considering additional grounds. The said documents produced along with the applications are considered and looked into. However, they do not bear impact or alter the findings recorded earlier. Hence, those IAs are disposed of accordingly.
Sd/- JUDGE BSR/tsn*