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Sri.K.S.Suresh vs Smt.Shivamma on 15 March, 2017

IN THE COURT OF THE 42nd ADDL. CITY CIVIL SESSIONS
JUDGE AT BENGALURU CITY (CCH.NO.43).

PRESENT: Sri.BAILUR SHANKAR RAMA,
B.Sc., M.A., LL.B.(Spl),
nd
42 ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.

Dated this the 15th day of March 2017.

O.S.No.277/2016

PLAINTIFFS:- 1. Sri.K.S.Suresh,
S/o.late K.C.Shankar Sa,
Aged about 44 years,
R/at No.7/2, M.M.Lane,
1st Cross, Cottonpet,
Bangalore – 560 053.

2. Sri.S.L.Rajesh,
S/o.Late Lakshminarayana,
Aged about 44 years,
R/at No.8/1, Santusapet,
7th Cross, Sulthanpet,
Bangalore – 560 053.

(By Sri.N.Madesh, Adv.)

v.

DEFENDANT:- Smt.Shivamma,
W/o.late V.Ramachandra,
Aged: Major,
R/at No.10 11,
Park Road, Kottige Lane,
Chikkalal Bagh Road,
Bangalore – 560 053.

(By Sri.Y.Nagaraj, Adv.)
2 O.S.No.277/2016

Date of institution of the suit : 08.01.2016

Nature of the suit : Specific Performance of
Contract and Permanent
Injunction

Date of commencement of : 20.10.2016
Recording of the evidence

Date on which the Judgment : 15.03.2017
was pronounced

Total Duration : Years Months Days
01 02 07

(BAILUR SHANKAR RAMA)
nd
42 ADDL. CITY CIVIL SESSIONS JUDGE,
Bengaluru.

JUDGMENT

This is a suit filed by the plaintiffs against the

defendant for the relief of specific performance of contract

and permanent injunction and costs.

2. The brief facts as averred in the plaint are that:-

The defendant is the absolute owner in physical

possession and enjoyment of the suit schedule property,

measuring East to West:65½ feet and North to South:23
3 O.S.No.277/2016

feet, totally measuring 1506 square feet in Property bearing

Nos.10 and 11 situated at Park Road, Kottige Lane,

Chikkalal Bagh Road, Bangalore. The property was standing

in her name and she has been paying taxes to the BBMP.

The defendant had executed an Agreement of Sale dated

13.01.2012 in favour of the plaintiffs agreeing to sell the

suit schedule property for a consideration of Rs.38,00,000/-

The defendant has received an advance amount of

Rs.5,00,000/- and subsequently at frequent intervals she

has received an amount of Rs.1,00,000/- on 05.04.2011,

Rs.1,00,000/- on 17.10.2012, Rs.1,00,000/- on

20.12.2012, Rs.2,00,000/- on 14.02.2013, Rs.1,00,000/-

on 16.07.2013 and again Rs.2,00,000/- on 21.10.2013 and

respectively passed receipts in favour of the plaintiffs. The

balance of Rs.25,00,000/- has to be paid by the plaintiffs to

the defendant. The defendant had agreed to execute a

registered Sale Deed with a short period after accepting the

balance consideration from the plaintiffs. The plaintiffs are

always ready and willing to get the Absolute Sale Deed

executed in their favour and requested her several times to

receive balance consideration of Rs.25,00,000/- and to
4 O.S.No.277/2016

execute the registered Sale Deed, but the defendant

postpone the event on one or the other pretext and failed to

perform her part of contract. Finally, the plaintiffs got

issued legal notice on 20.11.2015 to the defendant through

RPAD, calling upon her to accept the balance consideration

as per the Sale Agreement and to execute the registered

Sale Deed in favour of the plaintiffs in respect of the suit

schedule property. She has not sent any reply and all the

efforts made by the plaintiffs went invain. Hence, the suit.

3. After the service of suit summons, the defendant

has appeared before court through her advocate –

Sri.Y.Nagaraj and filed the written statement. The

defendant admits that, she is the owner and possessor of

the suit schedule property and execution of the Sale

Agreement dated 13.01.2012 in favour of the plaintiffs and

receipt of Rs.5,00,000/- on the date of Sale Agreement and

subsequently at frequent intervals received the amount

what is stated in para No.5 of the plaint and Rs.25,00,000/-

is only payable by the plaintiffs towards balance

consideration. However, she denied that whenever the

plaintiffs approached and requested to execute the
5 O.S.No.277/2016

registered Sale Deed by accepting balance consideration

from the plaintiffs, she has evaded on one or the other

pretext. She contends that she has informed the plaintiffs

personally that one Sri.Mahesh, who claiming to be an

adopted son, has created some documents and claiming the

title over the schedule property, for which the defendant

has already taken legal steps for cancellation of alleged

documents before the District Magistrate under Senior

Citizens Protection and Maintenance Act. Despite the said

fact, the plaintiffs have been demanding to execute the Sale

Deed forthwith, though the defendant has been requesting

the plaintiffs to grant time for completion of sale

transaction. However, she admits that the plaintiffs were

always ready and willing to pay the balance sale

consideration and to perform their part of contract. But

reasons stated by the defendant is with good intention only

and it was not with malafide intention. She admits the

receipt of legal notice dated 20.11.2015. She submits that

thereafter she has requested the plaintiffs to grant some

time, apprising all the constraints she has faced. Even then

the plaintiffs filed the instant suit. The cause of action that
6 O.S.No.277/2016

is stated is incorrect. Only for the above stated bonafide

reasons, the defendant could not execute Sale Deed within

the agreed time by receiving the balance consideration.

Hence, prayed that the court may grant reasonable time to

execute the Sale Deed and decree the suit on a condition

that Sale Deed shall be executed subject to completion of

the dispute pending before the Deputy Commissioner.

4. Basing on the rival pleadings the following issues

are framed:-

ISSUES

1. Whether the plaintiffs prove that the defendant
has executed Agreement of Sale dated
13.01.2012 in favour of the plaintiffs to sell the
suit schedule property for Rs.38,00,000/- by
receiving advance amount of Rs.5,00,000/-?

2. Whether the plaintiffs prove that they are
ready and willing to perform their part of
contract?

3. Whether the plaintiffs are entitled for the relief
of permanent injunction, restraining the
defendant from alienating the suit property?

4. Whether the plaintiffs are entitled for the
reliefs as sought for?

5. What order or decree?

7 O.S.No.277/2016

5. The plaintiff No.1 got himself examined as PW-1

and got marked Ex.P1 to P11 and closed his side. The

defendant has not led any oral evidence.

6. After the closure of the evidence, heard the

arguments.

7. My answers to the above issues are as under:-

Issue No.1:- In the affirmative.
Issue No.2:- In the affirmative.
Issue No.3:- In the affirmative.
Issue No.4:- In the affirmative.
Issue No.5:- As per final Order.

For the following:

REASONS

8. Issue Nos.1 2:-

For the sake of convenience these issues are taken up

together for discussion to avoid repetition of facts and

evidence.

9. In order to prove the plaint averments, PW-1 in his

evidence has deposed the facts on par with the plaint
8 O.S.No.277/2016

averments. He has categorically stated that the defendant

is the absolute owner and in actual physical possession of

the suit schedule property. She has agreed to sell the suit

schedule property in favour of the plaintiffs by executing an

Agreement of Sale dated 13.01.2012 for a consideration of

Rs.38,00,000/- as per Ex.P1. On the date of execution of

the Agreement of Sale, she has received Rs.5,00,000/- as

an advance amount and thereafter, on different dates she

has further received another Rs.8,00,000/- as per Ex.P2 to

P7 and agreed to execute the registered Sale Deed in favour

of the plaintiffs after receiving balance consideration of

Rs.25,00,000/-. The plaintiffs are always ready and willing

to perform their part of contract and made request to the

defendant several times to execute Absolute Sale Deed in

favour of the plaintiffs after receiving balance consideration

of Rs.25,00,000/- from them, but she has procrastinated

the matter on one or the other pretext. As finally the

plaintiffs realized that she did not have any inclination to

execute the Sale Deed got issued legal notice dated

20.11.2015 as per Ex.P8, calling upon her to receive the

balance consideration Rs.25,00,000/- from them and to
9 O.S.No.277/2016

execute the registered Sale Deed in favour of the plaintiffs

within 15 days from the receipt of the notice, thereafter

filed the instant suit for specific performance.

10. In this case, in the written statement filed by the

defendant she has not disputed the execution of Agreement

of Sale – Ex.P1 dated 13.01.2012 in favour of the plaintiffs

for a consideration of Rs.38,00,000/-. Further, she admits

the receipt of part consideration from them as stated by the

plaintiffs in their plaint. Even she admits the plaintiffs

approached the defendant informing her that they are ready

with balance consideration of Rs.25,00,000/- and ready to

get execute the Sale Deed in their favour and requested her

to execute Absolute Sale Deed in their favour in respect of

suit schedule property. She has admitted the receipt of

legal notice – Ex.P8. The only denial in this suit made by

the defendant that, she has willfully procrastinated the

matter under one or the other pretext and doesn’t showed

any inclination to execute the Sale Deed and denied the

cause of action.

10 O.S.No.277/2016

11. The defendant has contended in the written

statement that whenever the plaintiffs approached her with

a request to execute the Sale Deed, she had informed them

that one Sri.Mahesh, who is claiming to be an adopted son,

has created some documents and claiming title over the

schedule property, for which she has already taken legal

steps for cancellation of alleged documents before the

competent authority i.e., District Magistrate under Senior

Citizens Protection and Maintenance Act. Despite that the

plaintiffs started insisted her to execute Sale Deed

forthwith. Under that circumstances, she has been

requesting the plaintiffs to grant time for completion of the

sale transaction.

12. Here, receipt of part consideration on the date of

execution of Ex.P1 of Rs.5,00,000/- and receipt of

Rs.1,00,000/- on 05.04.2011, Rs.1,00,000/- on

17.10.2012, Rs.1,00,000/- on 20.12.2012, Rs.2,00,000/-

on 14.02.2013, Rs.1,00,000/- on 16.07.2013 and

Rs.2,00,000/- on 21.10.2013 and execution of the receipts

at Ex.P2 to P7 are admitted by her. Thus, out of the
11 O.S.No.277/2016

consideration agreed, she has received in all Rs.13,00,000/-

from the plaintiffs is not denied by her.

13. Equally, averments that the plaintiffs are always

ready and willing to perform their part of contract and they

were ready with balance consideration amount to get the

Sale Deed executed in their favour is admitted by the

defendant. Therefore, there is no need to discuss much

about the facts need be proved by the plaintiffs to get the

relief of specific performance of contract under the

circumstances of the case.

14. Therefore, one thing is clear from the evidence of

PW.1 that the defendant had executed Ex.P1 – Agreement

of Sale dated 13.01.2012 in respect of suit schedule

property for a consideration of Rs.38,00,000/- and she has

received part consideration amount and the plaintiffs are

always ready and willing to perform their part of contract is

proved to the satisfaction of the court.

15. The circumstances under which the defendant

expressed her inability to execute the Sale Deed, because of

the fact that one Sri.Mahesh, alleged to be an adopted son,
12 O.S.No.277/2016

has created documents and she has taken steps against him

for cancellation before the District Magistrate under Senior

Citizens Protection and Maintenance Act, was the ground

made by her for non-performance of her part of contract

agreed under Ex.P1. She has not produced any documents

along with her written statement to substantiate her

contention. Even she had appeared through her advocate,

filed written statement and contested the suit, but not

chosen to cross-examine PW-1. Even she has not chosen to

step into the witness box to lead evidence to substantiate

the grounds alleged by her as a measure of defence and not

subjected to cross-examination by the learned counsel for

the plaintiffs. Therefore, for withholding the material

evidence and documents by the defendant, as such an

adverse inference can be drawn against the defendant.

16. The very fact that she has admitted that she is

the owner and possessor of the suit schedule property. She

had every right to enter into Agreement of Sale and also

execute the Sale Deed in favour of the plaintiffs. She has

not denied the right of the plaintiffs to get the Absolute Sale
13 O.S.No.277/2016

Deed executed in their favour by paying balance

consideration of Rs.25,00,000/- to the defendant.

17. The impediments and constraints in execution of

Sale Deed what is alleged by her in the written statement,

are not proved by her before the court. She doesn’t have

any issues. The facts stated in the Ex.P1 makes it clear that

schedule site along with house was jointly purchased by her

husband along with her and it is her self acquired property.

It was purchased through a registered Sale Deed dated

19.10.1970 and katha was transferred jointly in the name of

the defendant and her husband – Sri.B.Ramachandra. They

have been enjoyed the property by making payment of

taxes to the BBMP. Her husband – Sri.B.Ramachandra died

on 25.08.1995. On his death, as they are issueless,

property was jointly purchased she being the successor to

her husband, she became owner of entire property and

katha was changed in her name exclusively. Therefore, the

recitals in the Agreement of Sale that she has got absolute

marketable title to execute the registered Sale Deed in

favour of the plaintiffs holds good. She has not denied all

these facts. Therefore, the issue relating to her justification
14 O.S.No.277/2016

what is contended by her to show her bonafides cannot be a

ground for her to postpone the event of execution of

Absolute Sale Deed in favour of the plaintiffs. She has

agreed under the Agreement itself suit schedule property

was her absolute property, standing in her name, free from

all encumbrances, she has got exclusive right to sell the

property and she has agreed to execute the Sale Deed

within a short period, though time was not fixed for

performance of contract.

18. One of the conditions stated in the Ex.P1 –

Agreement of Sale that, in the meanwhile before she

execute Absolute Sale Deed, in the event of her death she

has evinced her desire that the balance consideration

amount shall be given to Sri.Mahantheshwara Mutt,

Horalugallu, Kanakapura Taluk, Ramanagara District, for

which the plaintiffs have admitted. That means, absolutely

there was no impediment for her to execute the Sale Deed

in favour of the plaintiffs after receiving the balance

consideration amount, that property is standing in the name

of the defendant. Therefore, she is liable to perform her

part of contract. Even though granting the relief of specific
15 O.S.No.277/2016

performance of contract is a discretionary relief, the facts

and circumstances of the case brought on record by way of

evidence, this court can conclude that the plaintiffs have

established that they are entitled to get the relief of specific

performance of contract and it is necessary to direct the

defendant to execute absolute registered Sale Deed in

favour of the plaintiffs after receiving the balance

consideration amount from the plaintiffs within the

stipulated time fixed by the court, failing which they are

entitled to get the Sale Deed executed in their favour

through the process of the court. Accordingly, I answer

Issue Nos.1 and 2 in the affirmative.

19. Issue No.3:-

In this case, the plaintiffs have sought the relief of

permanent injunction against the defendant, restraining her

and her men, agents, successors in interest or any persons

acting under or through her from alienating, encumbering or

creating any charge over the schedule property.

Admittedly, the suit property is standing in the name of the

defendant. She has executed Agreement of Sale – Ex.P1 in
16 O.S.No.277/2016

favour of the plaintiffs, agreeing to sell the property for a

consideration of Rs.38,00,000/- and out of the

consideration, she has already been received

Rs.13,00,000/- from the plaintiffs. In view of my finding on

Issue Nos.1 and 2, the plaintiffs are entitled to get the relief

of specific performance of contract against the defendant.

In the meanwhile, if taking advantage of the fact that the

property is standing in the name of the defendant, if she

encumber the property or create any charge or transfer the

property or alienate the same in favour of third party, much

prejudice will be caused to right and interest of the plaintiffs

in respect of suit schedule property. In that event, the very

purpose of filing this suit, will be frustrated. Therefore,

even though in the written statement filed by the defendant

in the last para she has pleaded that reasonable time be

granted to her to execute the Sale Deed and prayed that

decree be passed in this suit in favour of the plaintiffs on a

condition that Sale Deed shall be executed subject to

completion of dispute pending before Deputy Commissioner.

But the plaintiffs have nothing to do with the factum of

pendency of such dispute, that is not averred in the
17 O.S.No.277/2016

Agreement of Sale. As it is property is standing in her

name, she is expected to execute the Absolute Sale Deed in

favour of the plaintiffs to perform her part of contract after

receiving the balance consideration. Till then, she should be

restrained from alienating or encumbering the property by

means of permanent injunction. Accordingly, I answer

Issue No.3 in the affirmative.

20. Issue No.4: –

In view of my detailed findings on Issue Nos.1 to 3,

this court can conclude that the plaintiffs have established

that they are entitled to get the relief of specific

performance of contract and it is necessary to direct the

defendant to execute absolute registered Sale Deed in

favour of the plaintiffs after receiving the balance

consideration amount from the plaintiffs within the

stipulated time fixed by the court, failing which they are

entitled to get the Sale Deed executed in their favour

through the process of the court. As the suit property is

standing in her name, she is expected to execute the

Absolute Sale Deed in favour of the plaintiffs to perform her
18 O.S.No.277/2016

part of contract after receiving the balance consideration.

Till then, she should be restrained from alienating or

encumbering the property by means of permanent

injunction. Accordingly, I answer Issue No.4 in the

affirmative.

21. Issue No.5:-

For the forgoing reasons, I proceed to pass the

following:-

ORDER

Suit filed by the plaintiffs against the defendant is

hereby decreed with costs.

The defendant is directed to execute the registered

Sale Deed in respect of the suit schedule property in favour

of the plaintiffs by accepting the balance consideration of

Rs.25,00,000/- from the plaintiffs within 6 months from the

date of this judgment and shall deliver the vacant

possession of the suit schedule property in favour of the

plaintiffs.

In the event, the defendant failed to execute the

registered Sale Deed in respect of suit schedule property in

favour of the plaintiffs, it is ordered that the plaintiffs are
19 O.S.No.277/2016

entitled to get the registered Sale Deed executed in their

favour through the process of the court.

In that event, the plaintiffs shall deposit balance

consideration amount of Rs.25,00,000/- in the court and get

the Court Commissioner appointed by making an application

before the court for the purpose of executing the registered

Sale Deed in their favour.

Cost of registration charges and expenses shall be

borne by the plaintiffs themselves.

Consequently, the defendant, her men, agents,

successors in interest or any persons acting under or

through her are restrained from alienating, encumbering or

creating any charge on the suit schedule property by way of

permanent injunction.

Draw a decree accordingly.

(Dictated to the Judgment Writer on computer, typed
by her, the transcript thereof corrected and then
pronounced by me, in open Court, this the 15th day of
March 2017)

(BAILUR SHANKAR RAMA)
42ND ADDL. CITY CIVIL SESSIONS JUDGE,
Bengaluru.

20 O.S.No.277/2016

ANNEXURE

I. List of witnesses examined on behalf of:

(a) Plaintiffs’ side:

PW.1 – Sri.K.S.Suresh

(b) Defendant’s side: Nil.

II. List of documents exhibited on behalf of:

(a) Plaintiffs’ side:

Ex.P1 : Original Agreement of Sale dated
13.01.2012
Ex.P2 to 7 : Receipts
Ex.P8 : Legal Notice dated 20.11.2015
Ex.P9 : Postal Receipt
Ex.P10 : Postal Acknowledgement
Ex.P11 : Endorsement issued by BBMP

(b) Defendant’s side: Nil.

42nd ADDL. CITY CIVIL SESSIONS
JUDGE, BENGALURU.

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