Dismissed

G v. Ramesh v Sri Naveen Kumar

Karnataka HC7 Dec 2020RFA/1118/2012

Case brief

AI extract

What is this about?

A common judgment dismissed three appeals against the Trial Court's order refusing specific performance of sale agreements. The High Court upheld the dismissal, finding the plaintiffs failed to prove readiness and willingness due to their conduct, denial of refund receipt, and filing suits at the last moment after receiving advance money refunds.

What did the court decide?

Appeals to allow appeal and set aside the judgment and decree dismissed.

G v Ramesh Vs Sri Naveen Kumar — Specific Performance | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF DECEMBER, 2020

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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R.F.A.No.1117/2012 c/w R.F.A.No.1118/2012 & R.F.A.No.1119/2012

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IN R.F.A.No.1117/2012:

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BETWEEN :

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G.V.RAMESH S/O G.VENKATARAYALU NAIDU AGED ABOUT 46 YEARS R/AT NO.63/B, 1^ST FLOOR, VIJAYARANGAM LAYOUT, BASAVANAGUDI, BANGALORE-560004 ...APPELLANT

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(BY SRI A.V.NISHANTH, ADV.)

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AND :

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SRI A.VIJAYA RAJ S/O SRI AMAR CHAND AGED ABOUT 63 YEARS R/AT LAKSHMAIAH REDDY ROAD ULSOOR, BANGALORE-560008 …RESPONDENT

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(BY SRI VENKATESH P. DALAWAI, ADV.)

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THIS R.F.A. IS FILED UNDER ORDER 41 RULE 1 AND 2 R/W SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 09.04.2012 PASSED IN O.S.No.6754/2004 ON THE FILE OF THE XI ADDITIONAL CITY CIVIL JUDGE,

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BANGALORE CITY, DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE.

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IN R.F.A.No.1118/2012:

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BETWEEN :

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G.V.RAMESH S/O G.VENKATARAYALU NAIDU AGED ABOUT 46 YEARS R/AT NO.63/B, 1^ST FLOOR VIJAYARANGAM LAYOUT BASAVANAGUDI, BANGALORE-560004. ...APPELLANT

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(BY SRI A.V.NISHANTH, ADV.)

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AND :

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SRI NAVEEN KUMAR S/O SRI A.VIJAYARAJ AGED ABOUT 38 YEARS R/AT LAKSHMAIAH REDDY ROAD ULSOOR, BANGALORE-560008. …RESPONDENT

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(BY SRI VENKATESH P. DALAWAI, ADV.)

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THIS R.F.A. IS FILED UNDER ORDER 41 RULE 1 AND 2 R/W SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 09.04.2012 PASSED IN O.S.No.6753/2004 ON THE FILE OF THE XI ADDITIONAL CITY CIVIL JUDGE, BANGALORE CITY, DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE.

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IN R.F.A.No.1119/2012:

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BETWEEN :

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G.V.RAMESH S/O G.VENKATARAYALU NAIDU, AGED ABOUT 46 YEARS, R/AT NO.63/B, 1^ST FLOOR, VIJAYARANGAM LAYOUT,

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BASAVANAGUDI, BANGALORE-560004

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...APPELLANT

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(BY SRI A.V.NISHANTH, ADV.)

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AND :

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SMT.UMA RAO BAI W/O A.VIJAYARAJ, AGDE ABOUT 48 YEARS, R/AT LAKSHMAIAH REDDY ROAD, ULSOOR, BANGALORE-560008 …RESPONDENT

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(BY SRI VENKATESH P. DALAWAI, ADV.)

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THIS R.F.A. IS FILED UNDER ORDER 41 RULE 1 AND 2 R/W SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 09.04.2012 PASSED IN O.S.No.6749/2004 ON THE FILE OF THE XI ADDITIONAL CITY CIVIL JUDGE, BANGALORE CITY, DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE.

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THESE APPEALS COMING ON FOR HEARING, THIS DAY, S. SUJATHA, J ., DELIVERED THE FOLLOWING:

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J U D G M E N T

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Since similar and akin issues are involved in these

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matters, the same are heard together and disposed of by this common judgment.

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These appeals are directed against the

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common judgment passed in O.S.Nos.6749, 6753 and 6754 of 2004 dated 9.4.2012 on the file of the XI Addl.

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City Civil Judge, Bangalore City (CCH No.8) (Trial Court

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for short).

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The plaintiff instituted different suits seeking

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for the relief of specific performance of the separate agreements of sale dated 8.9.2001 executed by the defendants in each case.

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The parties are referred to as per their status before the Trial Court.

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The description of the suit properties are as

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under:

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O.S.NO.6749/2004:

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SCHEDULE

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All the piece and parcel of the residential property bearing site No.4, bearing Katha No.10/2, situated at Sarakki Village Panchayath, Uttarahalli Hobli, Bangalore South Taluk, measuring East to West on the northern side 48 feet on the southern side 50 feet and north to south 40 feet in all measuring 1960 sq. feet and bounded on:

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East by : Private Property West by : Site No.3 North by : Site No.2 and South by : Site No.6

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Along with one square S.C. Sheet house.

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O.S.No.6753/2004:

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SCHEDULE

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a) All the piece and parcel of the residential property bearing site No.3, bearing Katha No.85/10/2, situated at Sarakki Village Panchayath, Uttarahalli Hobli, Bangalore South Taluk, measuring East to West 60 feet and north to south 40 feet in all measuring 2400 sq. feet and bounded on:

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East by : Site No.4 West by : 80 Feet Road North by : Site No.1 and South by : Site No.5

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Along with one square A.C. Sheet house.

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b) All the piece and parcel of the residential property bearing site No.5, bearing Katha No.86/10/2, situated at Sarakki Village

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Panchayath, Uttarahalli Hobli, Bangalore South Taluk, measuring East to West 60 feet and north to south 40 feet in all measuring 2400 sq. feet and bounded on:

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East by	:	Site No.6
West by	:	80 Feet Road
North by	:	Site No.3 and
South by	:	Site No.7

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Along with one square A.C. Sheet house.

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O.S.NO.6754/2004:

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SCHEDULE

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All the piece and parcel of the residential property bearing site No.6, bearing Katha No.10/2, situated at Sarakki Village Panchayath, Uttarahalli Hobli, Bangalore South Taluk, measuring East to West on the northern side 50 feet on the southern side 53 feet and north to south 40 feet in all measuring 2060 sq. feet and bounded on:

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East by	:	Private Property
West by	:	Site No.5
North by	:	Site No.4 and
South by	:	Site No.8

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Along with one square A.C. Sheet house.

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The plaint averments in brief are:

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O.S.No.6749/2004:

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The defendant having agreed to sell the suit schedule property bearing Site No.4 in favour of the plaintiff for consideration of Rs.14,71,960/-, received an advance amount of Rs.1,00,000/- and executed an agreement of sale dated 8.9.2001.

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O.S.No.6753/2004:

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The defendant having agreed to sell the suit properties i.e., site Nos.3 and 5 in favour of the plaintiff for consideration of Rs.36,04,800/-, received an advance amount of Rs.2,00,000/- and executed an agreement of sale dated 08.09.2001.

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O.S.No.6754/2004:

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The defendant agreeing to sell Site No.6 in favour

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of the plaintiff for consideration of Rs.15,46,060/-,

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received an advance amount of Rs.1,00,000/- and

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executed an agreement of sale dated 8.9.2001.

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It was averred in the plaints of all the three

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cases that the plaintiff has always been ready and willing to perform his part of the contract in paying the balance sale consideration amount but defendants failed to come forward to execute the sale deed on one pretext or the other. The plaintiff caused a legal notice dated 30.8.2004 calling upon the defendants to receive the balance sale consideration amount and execute the sale deed in terms of the agreement of sale. But the defendants failed to reply the same nor comply with the terms of the agreement. Hence, the plaintiff was constrained to file the suits against the defendants.

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On service of summons by the Trial Court,

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the defendants entered appearance through common counsel and filed separate written statements on similar grounds.

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Defendants agreeing with the agreements of sale entered into with the plaintiff to sell the respective sites for consideration amount as stated in the plaints denied the plea of the plaintiff that all along he was ready and willing to pay the balance sale consideration and get the registered sale deeds executed. The specific defence set up was that there was non performance of the agreement on the part of the plaintiff. They had informed the plaintiff about the litigation pending in respect of the sites pursuant to which the plaintiff expressed his non-willingness to purchase the suit schedule sites, requested them to return the advance amount received from the plaintiff. Accordingly, the defendants in O.S.No.6749/2004 and 6754/2004 returned the advance amount of Rs.1,00,000/- by way of a demand draft dated 25.7.2002 for Rs.50,000/- each drawn on Indian Bank, Ulsoor Branch, Bangalore and paid cash of Rs.50,000/- in each case on the same day

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to the plaintiff. The advance amount of Rs.2,00,000/was returned by the defendant in O.S.No.6753/2004 by way of a demand draft for Rs.1,00,000/- dated 25.7.2002 drawn on Indian bank, Ulsoor Branch, Bangalore and by paying Rs.1,00,000/- in cash. On the promise made by the plaintiff that he will destroy the agreements of sale executed by the defendants, they did not venture to get separate cancellation deeds but shockingly a legal notice dated 20.8.2004 was issued by the plaintiff sans providing sufficient opportunity to reply the same, suits were instituted. Accordingly sought for dismissal of the suits.

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On the basis of the pleadings, the following issues were framed:

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In O.S.No.6749 of 2004:

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Whether the plaintiff proves that he has been always ready and willing to perform his part of the contract?

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Whether the defendant proves that she has cancelled the agreement of sale dated

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08.09.2001 at the instance of the plaintiff by refunding the advance of Rs.50,000/- by issuing the D.D. and Rs.50,000/- by way of cash?

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Whether the plaintiff is entitled to the relief of specific performance of contract?

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To what order or decree?

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In O.S.No.6753 of 2004:

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Whether the plaintiff proves that he has been always ready and willing to perform his part of the contract?

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Whether the defendant proves that he has cancelled the agreement of sale dated 08.09.2001 at the instance of the plaintiff by refunding the advance of Rs.1,00,000/- by issuing the D.D. and Rs.1,00,000/- by way of cash?

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Whether the plaintiff is entitled to the relief of specific performance of contract?

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To what order or decree?

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In O.S.No.6754 of 2004:

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Whether the plaintiff proves that he has been always ready and willing to perform his part of the contract?

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Whether the defendant proves that he has cancelled the agreement of sale dated 08.09.2001 at the instance of the plaintiff by refunding the advance of Rs.50,000/- by issuing the D.D. and Rs.50,000/- by way of cash?

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Whether the plaintiff is entitled to the relief of specific performance of contract?

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To what order or decree?

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In order to prove the case, the plaintiff examined himself as PW-1 in each case, got marked documents Exs.P1 to P12 in O.S.No.6749/2004, Exs.P1 and P2 were marked in O.S.No.6753/2004 and Exs.P1 to P3 were marked in O.S.No.6754/2004, two witnesses PWs.2 and 3 were examined by the plaintiff in O.S.Nos.6749/2004 and 6753/2004.

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On behalf of the defendants, the defendant in O.S.No.6754/2004 was examined as DW-1.

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Documents Exs.D1 to D12 were marked.

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The Trial Court answering the issue Nos.1

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and 3 in the negative and issue No.2 in the affirmative in all the cases, dismissed the suits.

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Being aggrieved by the impugned judgment

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and decree, the plaintiff has filed the present appeals.

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Learned counsel for the plaintiff argued that

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the judgment and decree passed by the Trial Court is against the provisions of the Specific Relief Act, 1963. The plaintiff was always ready and willing to perform his part of the contract. The learned Trial Judge without appreciating the documentary evidence in the right perspective, has held that the agreement of sale dated 8.9.2001 was cancelled due to the fact that the defendants had paid the advance amount. No intimation was given by the defendants to show that the demand drafts were handed over to the plaintiff. The demand drafts at Exs.D5 to D7 were purchased in the name of the plaintiff. The plaintiff was oblivious of the same.

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Purchase of demand drafts would not be the proof of payments unless there was termination of the agreement in terms of the settled principles of law. Referring to Sections 91 and 92 of the Indian Evidence Act, 1872, the learned counsel submitted that when the terms of the contract have been reduced in writing, no other evidence shall be relied on except the document itself.

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Placing reliance on the judgment of the Hon'ble Apex Court in Rattan Lal (since deceased)

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through his L.Rs. Vs. S.N.Bhalla & another reported

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in AIR 2012 S.C. 3094, learned counsel argued that the dismissal of the suit by the Trial Court without there being written, express termination of the agreement of sale, is arbitrary and unjustifiable in the eye of law. The Trial Court has been carried away by the certificate of the bank dated 13.9.2007 (Ex.P11) relied upon by the plaintiff to discard the defence of the

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defendants of making the refund of earnest money deposit by way of a demand drafts. The said Ex.P11 was relating to different demand drafts which indeed was a bonafide mistake committed by the plaintiff while seeking the information from the bankers. Learned counsel appearing for the plaintiff had made a fervent plea before the Trial Court not to consider Ex.P11 as the same could be permitted to be withdrawn by the plaintiff as not pressed. The Trial Court has appreciated the evidence with a prejudicial mind which resulted in failure of justice. Accordingly, he sought for allowing the appeal by setting aside the impugned judgment and decree.

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16. Learned counsel for the defendants argued

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that the Trial Court has extensively analysed the oral and documentary evidence in arriving at the conclusion

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that the plaintiff was not entitled to the discretionary and equitable relief of specific performance of the

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agreement to sell (Ex.P1) Time stipulated in the agreement of six months was the essence of contract. On the litigation pending inter se between the family members of the defendant in O.S.No.6765/2001 before the competent court involving the suit schedule properties, the plaintiff expressed his unwillingness to purchase the suit schedule properties. On the assurance made by the learned counsel who prepared the agreement of sale Ex.P1, that the same shall be destroyed in view of the return of the earnest money deposit through demand drafts and cash as per Exs.D2 to D4 and the pass book entries at Exs.D8 and D9, no further termination of the said agreement is required, the defendants could not proceed further to get the agreement of sale terminated in writing. But on the contrary, the plaintiff has played fraud on the defendants as well as the court in instituting the suit on the basis of Ex.P1 despite receiving the earnest money deposit, as requested. Ex.P11 would establish the

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conduct of the plaintiff in getting the information that no demand drafts were credited to the account of the plaintiff by submitting different demand draft numbers other than the demand drafts which were duly credited.

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It was submitted that the plaintiff was not ready and willing to perform his part of the contract. At the fag end of the limitation period i.e., on 07.09.2004, suits were filed issuing notices on 30.8.2004. The Trial Court on profuse analysis of oral and documentary evidence has rightly dismissed the suits which does not call for any interference by this court.

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Having heard the learned counsel for the parties and perusing the material on record, the point that arises for our consideration is:

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Whether the judgment and decree passed by the Trial Court is justifiable?

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The execution of agreement of sale dated

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8.9.2001 (Ex.P1) in all the three cases is not in dispute.

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The sale consideration amount agreed between the parties relating to the suit schedule properties was at the rate of Rs.751/- per sq.ft. of the actual sital area described in the suit schedule. In all, the defendants had received Rs.4 lakhs towards the earnest money deposit (Rs.1,00,000/- each in O.S.Nos.6749/2004 and 6754/2004, Rs.2,00,000/- in O.S.No.6753/2004). It was agreed between the parties that the sale transaction shall be completed within a period of six months on the plaintiff paying the balance sale consideration. It appears, the plaintiff after noticing the litigation pending with respect to the suit schedule properties in O.S.No.6765/2001, has stepped back from purchasing the properties. Hence, he has not come forward to show his readiness and willingness till 30.8.2004. At the fag end, notices were issued calling upon the defendants to execute the registered sale deed. Immediately on

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7.9.2004 suits were filed. It is settled principle that no balance consideration amount need to be deposited before the court to prove the readiness and willingness of the purchaser. What is required is to establish that the purchaser was always ready and willing to purchase the property and had the financial capacity. The means or the financial capacity of the plaintiff would establish his readiness, but not the willingness. The plaintiff being a real estate agent might have proved his financial capacity but failed to prove his willingness. Though Ex.P1 was executed on 8.9.2001, if no earnest money was refunded as on 25.7.2002, keeping quiet for nearly three years sans making any demands for registration of the suit schedule properties would establish that the plaintiff was not interested in purchasing the suit properties, more particularly in view of the pending litigation in respect of the suit properties.

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PW-2 Sri.Ramanjulu Raju though has denied

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the suggestion of the defendants that they have returned the advance amount to the plaintiff through two demand drafts and cash, DW-2 Nagaraju has stated in his evidence that the defendants had returned the advance amount of Rs.4,00,000/- to the plaintiff by way of demand drafts for Rs.2,00,000/and Rs.2,00,000/- through cash in his presence. Nothing is elicited in the cross examination of this witness to discredit his evidence. Hence, in our opinion, the finding of the Tribunal that the plaintiff has failed to prove that he has been always ready and willing to perform his part of the contract cannot be found fault with.

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Exs.D2 to D4 are the pay orders purchased

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from the defendants from the Indian Bank, Ulsoor branch, Bangalore and the same were paid to the plaintiff through his banker viz., South Indian bank,

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Jayanagar branch, Bangalore. Bank pass book and the relevant entries in the pass book marked at Exs.D8, D8(a), D9, D9(a) as well as D10 certificate issued by the Bank Manager, Indian Bank, Ulsoor branch would establish that pay orders purchased from the defendants as per Ex.D2 to D4 were credited to the account of the plaintiff.

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It is not in dispute that O.S.No.6765/2001 was disposed of after the disposal of O.S.No.6749/2004 and connected matters. As aforesaid, the pendency of the litigation would be the cause for the plaintiff in not showing his willingness to purchase the suit schedule properties.

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It is significant to note that the plaintiff has denied the refund of the earnest money deposit made by the defendants by demand drafts and cash. In the cross examination of PW-1 it has been admitted that he had requested South Indian bank to furnish the details of the demand drafts on 2.9.2011 pursuant to which

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South Indian bank has issued the letter with the demand draft numbers as per Ex.P11. The witness has further admitted that the numbers of Exs.D2 to D4 are 605028, 605029 and 605027, however, the numbers found in Ex.P11 are 605208, 605209 and 605207.

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It is admitted by PW-1 that he was an

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income tax assessee and while filing the income tax returns, his bank pass books were handed over to his chartered accountant. No other transaction was pending between the plaintiff and defendants. PW2 and PW3 are also the real estate agents who have deposed that the agreement of sale Ex.P1 was not terminated. But the testimony of these witnesses would not inspire any confidence in view of the conduct of the plaintiff in fabricating the document Ex.P11 and producing the same before the Trial Court in support of his false evidence. The learned counsel appearing for the plaintiff before the Trial Court as well as before this court has

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rightly admitted that the plaintiff has not approached

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the court with clean hands which is sine-qua-non for seeking the relief of specific performance of contract.

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The defendants had challenged the order of

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the Trial Court dated 3.12.2011 dismissing the application filed by them to make complaint for the offences punishable under Sections 193, 196, 199, 200, 209, 463 and 471 of IPC against the plaintiff. This court in Criminal Appeal No.33/2012 while dismissing the appeal observed that if the learned Trial Judge records the finding that the plaintiff has given a false evidence in the suit as defined under Section 191 of IPC, he shall consider the feasibility of making a complaint under Section 340 of Cr.P.C. Plaintiff beseeched that a bonafide mistake has occurred in mentioning the numbers of the pay

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orders in the application given to the bank, having regard to the same, the Trial Judge has held

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that no case has been made out to make a complaint

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under Section 340 of Cr.P.C against the plaintiff.

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In Rattan Lal , supra, the Hon'ble Apex

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Court while considering the aspect of readiness and willingness in the context of the purchaser agreeing to get the required sale permission and I.T. clearance certificates acting in the role of a felicitator held that, the primary responsibility for obtaining such permission and clearance from the Income Tax Authorities remained with the sellers. In the absence of any material to show that the seller had made positive efforts for procuring necessary permission and clearance certificates, they were not entitled to terminate the agreement in terms of Clause 9. In analyzing the judgment of the Trial Court and the High Court, one of the ground considered by the Apex Court was that the acceptance of refund of the earnest money claimed by the seller to the purchaser in the backdrop

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of such acceptance made by the purchaser, without prejudice to his rights and contentions in the suit. Said earnest money deposit was received under protest. Accordingly, the Hon'ble Apex Court held that the purchaser had not given up his claim under the agreement or it is not that he was not ready and willing to perform his part of the contract.

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Having regard to steep increase in the value

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of real estate and in the absence of definite evidence to show that the purchaser was ready and willing to conclude the sale transaction, it was held that the respondents cannot be given the benefit of delay in concluding the same. Accordingly suit was decreed. But instead of decreeing the suit for specific performance of agreement, the Hon'ble Apex Court directed the respondents to pay the seller, costs assessed at Rs.25,00,000/-, by the respondents.

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In the present case, as discussed aforesaid,

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though the demand drafts were credited to the account of the plaintiff as far back as on 25.7.2002, no efforts were made to refuse such credit made by the defendants in refunding the amount paid towards the earnest money deposit. The evidence on record would establish that the plaintiff had assured the defendants that the sale agreement would be destroyed in view of the refund of the earnest money deposit. But the plaintiff has failed to keep up the assurance. On the last day of the limitation period, he has filed the suit. The plaintiff has played dilatory tactics to disprove the credit made to his account by leading false evidence which has a serious consequence on the case. Hence, the judgment relied upon by the learned counsel for the appellant/plaintiff would not be applicable to the facts and circumstances of the case.

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For the reasons aforesaid, we are of the

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considered opinion that the impugned judgment and award neither suffers from any illegality or irregularity nor there is any perversity or arbitrariness found in appreciation of evidence by the Trial Court.

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In the result, the appeals stand dismissed.

Sd/JUDGE

Sd/-

JUDGE

Dvr:

G v. Ramesh v Sri Naveen Kumar

Case brief

What is this about?

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G v. Ramesh v Sri Naveen Kumar

Case brief

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