The plaintiff sought specific performance of an alleged sale agreement. The High Court affirmed the trial court's dismissal, finding the agreement fabricated and the plaintiff financially incapable. Appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF AUGUST, 2023 BEFORE
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY REGULAR FIRST APPEAL NO.2238 OF 2019 (SP)
Between:
B.V. Gurumurthy, S/o. Late K.B. Vajranna, Aged about 53 years, Agriculturist, R/o. Kodihalli Village, Taluk Hobli, Chitradurga -577518.
…Appellant
(By Sri. Srikanth N.V., Advocate)
And:
All are R/o No.69, 3rd Cross, 2nd Main Road, Dena Bank Colony, Bangalore -560 032.
…Respondents
(By Sri. Javed S., Advocate for R1 to R3)
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This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908 against the Judgment and Decree dated 18.09.2019 passed in O.S.No.55/2017 on the file of the Principal Senior Civil Judge, Chitradurga, dismissing the suit for specific performance.
This Regular First Appeal having been heard through physical hearing/video conferencing hearing and reserved on 18.07.2023 , 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 present appellant as a plaintiff had instituted a suit in O.S.No.55/2017, in the Court of the Principal Senior Civil Judge at Chitradurga (hereinafter for brevity referred to as "the Trial Court"). against defendants seeking the relief of specific performance and directing the defendants to execute the registered Sale Deed in his favour as per the Sale Agreement dated 28.10.2016 in respect of the suit schedule property.
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schedule property, which is an agricultural land,
measuring 5 acres 24 guntas in Sy.No.273/2, located at Guddada Rangavvana Halli of Chitradurga Taluk, for a consideration of sum of 15,00,000/- for their family necessity and to purchase some other property. On the date 28.10.2016, defendant No.1 executed an Agreement of Sale in favour of the plaintiff and received a partial sale consideration of sum of 14,50,000/- as an advance amount. The first defendant had earlier filed an Original Suit bearing O.S.No.10/2016, on the file of learned II Additional Senior Civil Judge Court, Chitradurga against one Smt. Hemalatha with respect to suit schedule property. It was agreed to between the present plaintiff and defendant No.1 that after disposal of the said suit, by rectifying the records and after payment of the balance amount, the defendant No.1 would execute the Sale Deed. If the judgment comes against defendant No.1, then she would return the earnest money with interest at the rate of 24 % per annum. The suit in O.S.No.10/2016 came to be decreed in favour of the present defendants on
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28.01.2017 and Khata was also mutated in the names of the defendants. Thereafter, the plaintiff requested the defendants and demanded them to execute a registered Sale Deed by receiving the balance sale consideration of a sum of `50,000/-. The defendant No.1 sought for some time, but, she did not comply the request. As such, the plaintiff got issued a legal notice dated 25.04.2017, calling upon the defendants to execute the registered Sale Deed on 09.05.2017 and asked defendant no.1 to come to the office of the Sub-Registrar to execute the Sale Deed. Though notice was served upon defendant No.1, neither she came to the office of the Sub-Registrar nor executed the Sale Deed nor even replied to the notice.
Though the plaintiff has been ready and willing to perform his part of the contract, however, the defendant No.1 did not execute the Sale Deed. Since the defendants No.2 and 3 had gone to foreign country, as such, in their absence, defendant No.1 had executed the Agreement of Sale and had undertaken to execute Sale Deed along with defendants No.2 and 3. Since defendants failed to execute
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the Sale Deed, the plaintiff was constrained to institute the present suit against the defendants in the trial court.
them, it was only defendant No.1 who appeared through her counsel and filed written statement. Defendants No.2 and 3 remained ex-parte . It was contended by defendant No.1 in her written statement that the plaintiff was a known person to their family. The plaintiff was working as an Assistant to her husband late Sri. Suresh @ Surendran who was doing business in organic fertiliser and sale of agricultural implements. The said Suresh died on 24.12.2010. After his death, the defendants succeeded to
his estate and RTC Pahani changed in their names. In the meantime, the defendants had filed a suit in O.S.No.10/2016 against one Smt. Hemalatha with respect to the suit schedule property. The plaintiff who continued his work towards the defendants even after the death of Suresh @ Surendran, was also helping defendant No.1 in filing the said O.S.10/2016 and prosecuting the same. In the said process, he had also collected the documents and
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given evidence in the Court. At the time of obtaining documents from the Revenue Officials and Registration Authorities, stating as required to proceed in O.S.No.10/2016, plaintiff had taken the signatures of first defendant on `20/- blank stamp papers and those stamp papers were misused by him in creating the sale agreement, only with an intention to knock off the defendants’ property. Defendant No.1 had also contended that, after the death of her husband, the plaintiff who continued to work as an assistant from 02.02.2013 to 13.3.2017, had received different sums of money from defendant No.1 on different dates on the pretext of expenses incurred in prosecuting the litigation in O.S.No.10/2016. He had also collected copies of Aadhaar Card, Passport and Election Identification Card of the defendants.
The plaintiff who came from a poor agricultural family had leased his house and landed properties in favour of defendant No.1 on 01.06.2016 and had received a sum of `1,25,000/-. The first defendant contended that
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the plaintiff has filed this suit with an intention to knock-off the suit schedule property. He has also filed one more suit in O.S.No.118/2017 at Molakalmuru Court against defendants by creating sale agreement. The defendant No.1 specifically contended that plaintiff had no capacity to pay the alleged sale amount. With this, she prayed to dismiss the suit with cost.
consideration:
_15,00,000/- out of which, she received_ 14,50,000/towards advance amount from him and executed a registered Sale Agreement on 28.10.2016 in favour of the plaintiff?8
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considered/treated as Ex.P.14.
the affirmative, issues No.2 and 4 as do not survive for consideration proceeded to dismiss the suit of the plaintiff.
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Aggrieved by the same, the plaintiff has preferred the present appeal.
regular first appeal and the Trial Court records.
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sent by the plaintiff and PWs-2 and 3, the attesting witnesses to the agreement have supported the case of the plaintiff. Since DW-1 is a Doctor, it is not believable that she had signed the blank stamp papers. The learned counsel further submitted that the financial capacity of the appellant/plaintiff is proved by producing Ex.P.23 which are the bills. He also submitted that the trial Court has not given any finding on readiness and willingness of the plaintiff. With this, he submitted that the trial Court did not appreciate these aspects, which have resulted in passing the impugned judgment.
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and misused by the plaintiff who was working under the husband of defendant No.1 and later continued to work under defendant No.1 for some time. He also submitted that evidence of PWs-2 and 3 are contradictory to each other. The alleged bills at Ex.P.13 does not bear the signature of the plaintiff and by looking at them, it may be ignored that plaintiff had received the amount shown in those bills. None of those bills explain as to for what purpose and how they came in existence. While drawing the attention of this Court to Exs.D.10 and D.11, he submitted that Income Tax returns filed by the defendants on behalf of the firm shows that plaintiff was due for a huge amount to the defendants.
Further as per Ex.D.9 the plaintiff had borrowed a sum of `1.25 lakhs from the defendants, as such, in order to knock off the said amount, the plaintiff has created a false Agreement at Ex.P.1, and filed a suit. He also submitted that admittedly the alleged agreement is only with defendant No.1, whereas, even according to the plaintiff, defendants No.2 and 3 were also owners of the suit
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schedule property after the death of their father. As such, the alleged agreement, wherein, the defendants No.2 and 3 are not parties will not bind them and the agreement cannot be in existence. With this, he submitted that impugned judgment does not warrant any interference at the hands of this Court.
parties, the points that arise for my consideration in this
appeal are :
_15,00,000/- to him out of which she received_ 14,50,000/as advance amount from him and executed a registered agreement for sale dated 28.10.2016 as per Ex.P.1 in favour of the plaintiff?defendants were known to each other since prior to the
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date of alleged Agreement, which is dated 28.10.2016. The pleadings of both the parties in the form of plaint and written statement mentions it in clear terms. The contention of the plaintiff that defendant No.1 is the wife of late Suresh @ Surendran and she is working as a Doctor and defendants No.2 and 3 are children of defendant No.1 and said late R. Suresh @ Surendran, is also an admitted fact. The suit schedule property is under the ownership rights and in possession of the defendants under MR No.H85/2016-17 of the order of the Civil Court, is also an admitted fact. However, the plaint averment and also the evidence of the plaintiff as PW-1 that for a consideration of a sum a of 15,00,000/-, the defendants agreed to sell the suit schedule property to the plaintiff on 28.10.2016 and defendant No.1 after receiving a partial sale consideration of sum of 14,50,000/-, has agreed to execute the Sale Deed in favour of the plaintiff subject to the outcome of a Civil suit instituted by her against one Smt. Hemalata in O.S.No.10/2016, on the file of learned II Additional Senior Civil Judge Court at Chitradurga and in
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case if she could not succeed in the said suit, she would return the entire earnest amount with interest at the rate of 24% per annum, has been specifically denied by defendant No.1 both in her written statement, as well in her evidence as DW-1. However, with respect to suit schedule property, defendant No.1 having filed a suit against Smt. Hemalata in O.S.No.10/2016, was admitted as true by defendant No.1 in her written statement, as well in her evidence as DW-1.
On the other hand, the defendant No.1 in her written statement as well in her evidence as DW-1 has taken a contention that the plaintiff who was working as an Assistant with her late husband during his life time, in his business, continued his services under defendant No.1 after the death of her husband. During the said time, in order to help the defendant No.1 to conduct the above said suit in O.S.No.10/2016 and to secure several revenue records and other documents, used to obtain her signatures including signatures on `20/- valued stamp papers while they were blank and had gained the
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confidence of the defendants, however, by misusing those blank stamp papers, he has fabricated the alleged agreement for sale at Ex.P.1 and has filed a false case against defendants. It is also the contention of defendant No.1 in her written statement and in her evidence as DW1 that the plaintiff has filed one more suit in O.S.No.118/2007 at Molakalmuru Court against defendants by creating a Sale Deed. Defendant No.1 both in her written statement as well in her evidence as DW-1, contended apart from the above, that the plaintiff had no financial capacity to pay the alleged sale consideration which is a huge amount.
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stating that being another brother of DW-1, he knowing plaintiff and his working as an Assistant to his brother-inlaw and stating that said plaintiff has fabricated documents at Ex.P.1, have supported the contention of defendant No.1.
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extract with respect to suit schedule property showing that mutation has been made in the name of the defendants with respect to suit schedule property. Ex.P.9 is the encumbrance certificate showing that a document of declaration as registered in favour of defendant No.1 with respect to suit schedule property. Ex.P.10 is the copy of the legal notice shown to have been sent on behalf of the plaintiff to the defendant No.1 on 25.04.2017. Exs.P.11 and P.12 are postal receipt and postal acknowledgement respectively to show the service of legal notice upon defendant No.1. Ex.P.13 are produced stating them to be the cash bills in favour of the plaintiff.
The defendant No.1 as DW-1 in support of her evidence has produced account statement of her alleged establishment M/s. Agro Care India Pvt., Ltd., (for brevity ACIPL) at Ex.D-1. Two RTCs of plaintiff’s property at Mannekote village at Exs.D.2 and D.3, photo copy of PAN card, voter’s card (EPIC), two sheets of Aadhaar card, Bank savings Account pass book cover page belonging to the plaintiff at Exs.D.4, D.5, D.6, D.7 and D.8 respectively.
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A document said to be a Mortgage Deed by the plaintiff in favour of defendant No.1 with respect to defendants' alleged landed property at Mannekote village, Chitradurga District was got marked at Ex.D.9. Copy of the Income Tax Returns of M/s. ACIPL for the assessment year 2016 -17 and ITR for the year 2018-19 and a document shown to be statement about trade receivables of the said establishment M/s. ACIPL were got marked at Ex.D.11 and D.12 respectively .
A registered Deed of Declaration shown to have been executed by defendant No.1 in favour of Smt. K.L. Hemalata was produced and marked at Ex.D.13. Certified copy of the judgment and decree dated 28.01.2017 passed in O.S. No.10/2016, by the Court of learned II Additional Senior Civil Judge and JMFC at Chitradurga, is produced and marked as Ex.D.14. Ex.D.15 is the summary of the bank account of M/s. ACIPL as on 30.09.2016. The copy of the statement of account of DW-1 as on 30.09.2016 with ICICI Bank R.T. Nagar Branch, Bengaluru is produced at Ex.D.16.
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gave his evidence as PW-1, that agreeing sell the suit schedule property to the plaintiff for a sale consideration of a sum of `15,00,000/-, the defendant No.1 has executed an Agreement for Sale as per Ex.P.1 on 28.10.2016 in favour of the plaintiff, PWs-2 and 3 have apart from identifying Ex.P.1, have also identified their signatures in it. It is relying upon the
evidence of PWs-1 to 3 and the documents produced by them, learned counsel for the appellant vehemently submitted that evidence of plaintiff both oral and documentary though have established the Agreement for Sale of suit schedule property by the defendants in favour of the plaintiff, however, the trial Court has committed an error in not appreciating the said evidence. He also contended that the trial Court erred in not considering the absence of initiation of legal or criminal action against the plaintiff for the alleged fabrication of document at Ex.P.1.
He also submitted that the trial Court did not consider beholding of agricultural land as per Exs.P.4 to P.7 to show
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that he had sufficient income to pay sale consideration to the defendants.
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times on an average of once in a month. He also stated
that, similarly he was visiting their house as and when he was visiting Bengaluru. Further the witness has also stated in his cross-examination that after the death of said Suresh also he has visited their house about ten to fifteen times. When specifically asked the purpose of he going to the house of defendant No.1 after the death of her husband, the witness stated that only to talk to them he had visited their house. He further stated that since defendant No.1 was a widow of his friend, he was visiting their house, PW-1 has also specifically stated that while visiting the house of defendant No.1, he had entered into financial transactions with them and had executed an Agreement for Sale to them. According to defendant No.1, the document was a Mortgage Deed as per Ex. D.9.
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account statement at Ex.D.1. He has also stated that defendant No.1 had secured him a motorcycle. The witness stated that he receiving the amount from defendant No.1 was with respect to making payment to the labourers and the fertiliser shops. He admitted a suggestion as true that he was a person of great confidence to defendant No.1. He also identified his personal documents from Exs.D.4 to D.8 produced by the defendants side.
Thus, from the evidence of PW-1, it is clear that he was visiting the house of the defendants frequently and had got money transferred to his account by defendant No.1 and using the motorcycle said to have been given by defendant No.1 and also had given the copies of his personal documents like PAN card, Aadhaar Card, Voter’s Card, Bank passbook to defendant No.1.
This goes to show that the plaintiff was not just a well-wisher or a friend of family of deceased Suresh @ Surendran, but, he had more connected to their family in some other capacity. That some other capacity is as an
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Assistant of Suresh as contended by defendant No.1. Though PW-1 at one place has stated that he does not know that deceased Sri. Suresh was doing business in agricultural implements and fertilisers etc., however in the very same cross-examination, has stated that he was receiving money by defendant No.1, which he has called as the money payable to different labourers and fertiliser dealers. Had plaintiff not being an assistant or employee under the husband of defendant No.1, later under defendant No.1, then, there was no reason for him to visit the house of defendant No.1 on large number of times both during the lifetime of Sri. Suresh and even after the death of Suresh when defendant No.1 was a widow. There was no reason for him to accept motorcycle said to have been given by defendant No.1 and also to accept transfer
of funds to his account. As a mere
well-wisher he would not have accepted these facilities and after getting amount transferred to his account, he would not have given it to the labourers and fertiliser dealers, the details of which have also not been given by
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him. On the other hand, it strengthens the contention of the defendant No.1 that plaintiff was working as an Assistant to her husband during his life time and later under her after the death of her husband.
Further, evidence of DW-2- Sri. Arun Kumar B., who claims himself to be one more Assistant working for defendants, has also stated that, plaintiff was a co-worker with him in M/s. ACIPL, Bengaluru, which was being run by the husband of defendant No.1. Both himself and plaintiff were working towards marketing and recovery.
The evidence of DW-3 also corroborates the evidence of DW-1 and DW-2 with respect to plaintiff working under his brother-in-law Sri. Suresh, as an Assistant at Chitradurga and later under his sister i.e., defendant No.1. This fact go to show that plaintiff was close to the family of
the defendants as an employee under them and had gained greater confidence from the defendants. As such, the contention of the plaintiff that in the said process in order to get several documents and papers, he was obtaining the signature of defendant No.1 on several
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papers, including blank Stamp Paper of `20/- value, cannot be ruled out.
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to how come the defendant No.1, who is an alleged vendor, asks the plaintiff, the alleged purchaser, to bring the stamp papers in advance when the negotiation and talks with respect to the sale of the property has not been began or concluded between them. This strengthens the doubt with respect to defendant No.1 executing Ex.P.1 in favour of the plaintiff.
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Challakere, whereas PW-2 in his cross-examination has stated that the agreement took place in a Tea Shop (Dabba Shop) adjacent to Office of the Sub-Registrar, Challakere. There is no evidence that Taluk Office and Sub-Registrar's Office are located in the same premises. As such with respect to alleged place of Agreement, there is discrepancy in the evidence of PWs-1 and 2.
The said evidence of PW-3, the Advocate, does not inspire confidence to believe, since according to PW-1, it was defendant No.1 who had asked him to bring stamp papers, whereas, PW-3 says it was him.
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Secondly, according to PW-3, he has not stated the
value of stamp paper to be brought and he has also not seen as to what was the value of the stamp paper that was brought and for what purpose it was brought. Being an Advocate, without even telling the value of the stamp paper, he claims to have secured the stamp paper. Further without even knowing the value of stamp paper and the purpose for which it was brought, he claims to have got the matters typed upon it. Added to these, the witness has also stated that, he has not seen or verified the documents pertaining to suit schedule property and also has not advised the plaintiff to pay the alleged huge amount of `14,50,000/- which is required to be paid through cheque or bank.
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around the alleged transaction of sale between plaintiff
and defendant No.1 and defendant No.1 executing Ex.P.1.
" Rule 11. Specification of software to be used by Central Record Keeping agency. - The Central Record Keeping Agency, in consultation with the Appointing Authority, shall design and
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use such software, to indicate the following minimum details on the e-Stamp Certificate, and also for other requirement.-
(a) Distinguished serial number/Unique identification number of the e-Stamp Certificate so that it is not repeated on any other e-Stamp Certificate during the life time of the e-Stamping system;"
PDES Rules of 2009 every e-Stamp paper will be issued by the Approved Intermediary or Authorised Collection Centre or Authorised Stamping Centre as defined under Rule 2(d) of the PDES Rules of 2009. Such e-Stamping Certificate should necessarily bear a distinguished Serial Number/Unique Identification Number of the e-Stamp Certificate which shall not
be repeated on any other e-Stamp Certificate during the lifetime of the e-Stamping system. As such, the e-Stamp Certificate issued by the Authorised Intermediary is unique and
there will be no repetition of such Certificate number. Thus, irrespective of the amount of the Stamp duty paid to or collected by the Intermediary, they issue only one e-Stamp paper bearing a Unique Identification Number. The person who
pays the Stamp duty amount and purchases the e-Stamp paper, if wants to have more number of pages, may add bond
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papers which do not bear the e-Stamping Certificate/ embossed on it. For convenience, the Government of Karnataka has enabled the printing of such bond paper through Registration and Stamps Department which is being sold at a very nominal cost. As could be seen in Ex.P-2 and Ex.P-3, those blank papers for documents printing is shown to have been sold at a sum of `2/- per sheet.
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varied description of the document, that too, in two sets of stamp papers, as observed above, would further takes the suspicion about the alleged transaction between the plaintiff and defendant No.1 and defendant No.1 executing the alleged agreement at Ex.P.1 in favour of the plaintiff to a greater height.
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heighten the doubt about the Agreement for Sale between the defendant No.1 and plaintiff with respect to suit schedule property.
At the same time, it also cannot be ignored of the fact that nowhere at Ex.P.1, it is shown that defendant No.1 who alone is the alleged executant of the said document as a vendor has stated that she has been executing the said document for her and also on behalf of her children. Admittedly, no Power of Attorney in that regard has been neither canvassed nor produced by either of the parties.
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property in a place called Mannekote in Chitradurga District. Though the documents would only go to show that family of the plaintiff had some agricultural property in a village called Mannekote in Challakere Taluk at Chitradurga District, but, apart from the plaintiff, other few persons who are shown to be one
Smt. Sulochanamma and one Smt. Deviramma were also the holder of those lands in possession of the property. More interestingly, both Exs.P.4 and P.5 shows that no information about the crop was given, as such, they have shown it as “No Crop Info”. Thus, merely producing RTC extract would not show that the plaintiff was capable of holding and paying a sum of `14,50,000/- to defendant No.1 as a partial sale consideration.
of more than `18.00 lakhs in his house. The said statement of PW-1 does not inspire any confidence to
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believe. Claiming to be an agriculturist and working for defendant No.1, by making use of motorcycle given by her and on behalf of defendant No.1 alleged to have paying money to labourers and others, keeping more than 18.00 lakhs in his house without even any final settlement of purchase of land, is highly unnatural and unbelievable. According to plaintiff himself the sale negotiations took place on 28.10.2016. If he purchased the Stamp paper a day in advance, and had already got more than 18.00 lakhs at his house by that time, without the negotiations being completed or concluded, a doubt arises as to how he can anticipate certain events and keep such a huge amount at home. Further the doubt would be not only about alleged transaction under Ex.P.1, but, also about the financial capacity of the plaintiff.
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the Assessment Year 2016-17 has shown that the plaintiff
was due to the establishment a sum of 1,67,510/-. The very same establishment in Ex.D.11 has shown the amount receivable (trade receivable) as on 31<sup>st</sup> March 2017 by the plaintiff to the defendants' establishment as a sum of 6,62,161/-. Therefore, when according to defendants the plaintiff was working as an Assistant and was helping in recovering the money from the purchasers of the products of M/s. ACIPL, was in due for a large amount to the defendants' establishment.
1,25,000/-. Thus, a person having such a liability towards the defendants under various heads, keeping more than 18,00,000/- with him in cash and agreeing to buy suit schedule property from the very same defendants, is highly improbable. As such, the contention of the defendants, taken in their written statement, in the cross-examination of PW-1 and37
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in the evidence of DW-1 and the sole argument of learned counsel for the respondents that the plaintiff was financially incapable of getting such a huge amount of alleged sale consideration and paying it to defendant No.1, also creates a serious doubt in the case of plaintiff with respect to Agreement at Ex.P.1.
those bills has not been examined by the plaintiff. The defendants have not admitted those documents as the proof of the income of the plaintiff. None of these documents show that alleged amount shown therein have
been paid in cash to the plaintiff and the purpose of the payment. Several of those documents are on some slip like scribbling pad or a prescription pad. Admittedly, no Books of Account have been produced by the plaintiff about him carrying on any business on his own and receiving any sums, including amount shown in Ex.P.13.
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On the other hand, some of the bills in Ex.P.13 which also speaks about some poultry and agricultural product would support the case of the defendants that deceased Suresh @ Surendran was doing business in organic fertiliser and agricultural implements who had engaged the services of plaintiff as an Assistant for recovery of money.
The evidence of DW-2 that he was a colleague of plaintiff and working under deceased Suresh @ Surendran as a Marketing and Recovery Agent, makes the defendants' contention more probable.
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perform his part of contract, in which direction, he had sufficiently alleged balance consideration with him.
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I do not find any reason to interfere in the impugned
judgment and decree.
Accordingly, I proceed to pass the following:
ORDER
The Regular First Appeal filed by the plaintiff
(appellant) stands dismissed as devoid of merits;
Registry to transmit a copy of this judgment along with the Trial Court records to the concerned Trial Court, immediately.
Sd/JUDGE
BVK
3 issues framed by the court
Whether the plaintiff proved that defendant No.1 executed a valid sale agreement and received advance consideration for the suit property?
Whether the plaintiff was ready and willing to perform his part of the contract?
Whether the impugned judgment and decree of the trial court warrants interference?
1 provisions across 1 enactments
B.V. Gurumurthy
Smt. Dr. Nagalakshmi
Karankumar
Haritha
H.B.Prabhakara Sastry
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court