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.
