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2013 DIGILAW 1095 (KAR)

T. v. Lakshmikanth VS B. R. Prithviraj Urs

2013-09-12

ANAND BYRAREDDY

body2013
JUDGMENT Anand Byrareddy, J.—This is a plaintiffs appeal. The suit was one for specific performance of contract. It was the case of the plaintiff that there was an agreement between the plaintiff and the defendants, who had agreed to sell an Industrial site bearing no. 145, Industrial Suburb, II Stage, Yeshwanthpur Industrial Layout, Bangalore, measuring East to West 33' and North to South 133', for a total sale consideration of Rs. 7.50 lakh. The agreement was dated 14.8.1991. The defendants had received an advance amount of Rs. 51,001/-, towards the price. Though the site in question was allotted in the name of the first defendant alone, the second defendant, who was the wife of the first defendant, was made a party to the agreement by way of abundant caution. In terms of the agreement, the first defendant was required to obtain permission from the competent authority to sell the property. He was also required to obtain the possession certificate, a conditional sale deed and khatha certificate from the Bangalore Development Authority (Hereinafter referred to as the 'BDA', for brevity), which had allotted the property in favour of the first defendant, within 30 days from the date of agreement. In the meanwhile, the plaintiff is said to have been put in possession of the suit property pending compliance with the above pre-conditions to the completion of the transaction. The plaintiff was also granted permission to carry out improvements on the property. The plaintiff claimed he had paid further amounts of Rs. 50,000/- in cash on 6.12.1991, Rs. 35,000/- on 2.3.1992, Rs. 90,000/- by way of cheque on 11.1.1993 and Rs. 50,000/- through cheque on 12.1.1993. The plaintiff claimed that the defendants demanded further sums and accordingly the plaintiff is said to have paid Rs. 1.25 lakh and Rs. 75,000/- on 4.4.1993 and Rs. 25,000/- on 7.2.1994 through cheque and Rs. 10,000/- on 9.2.1994. It is claimed all the above payments have been duly acknowledged on the obverse of page no. 1 of the agreement of sale, as well as on the obverse of the last page of the deed. The plaintiff has offered an explanation in respect of the payments through cheques having come from other persons, but in favour of the first defendant. Out of Rs. 7,50,000/- towards sale consideration, the plaintiff has paid Rs. 5,71,001/- as advance to the defendants, out of which Rs. The plaintiff has offered an explanation in respect of the payments through cheques having come from other persons, but in favour of the first defendant. Out of Rs. 7,50,000/- towards sale consideration, the plaintiff has paid Rs. 5,71,001/- as advance to the defendants, out of which Rs. 2,35,000/- was paid by way of cheques. The plaintiff submitted that cheque bearing No. 0969915 dated 11.1.1993 for a sum of Rs. 90,000/- drawn on Vijaya Bank, Banashankari branch in favour of defendant No. 1 was issued by one Smt. Shanthamma, wife of M.S. Kalappaiah, who was a close family friend of plaintiff as he had requested her to issue the same as he was short of funds and in turn, it was handed over to defendant No. 1 by the plaintiff. The defendant No. 1 has encashed the same. Likewise, cheque No. 403947 dated 11.1.93 for Rs. 60,000/- drawn on Visveshwaraiah Co-operative Bank Ltd., Jayanagar in favour of defendant No. 1 was issued by one Smt. Sudha, wife of B.K. Swamy, who was also a close family friend of the plaintiff as he had requested her to issue the same due to shortage of funds and the same was handed over to defendant No. 1 by the plaintiff. The cheque bearing No. 541902 dated 12.1.93 for Rs. 50,000/- drawn on Vijaya Bank, Seshadripuram branch was issued by Smt. Shylaja, wife of B.K. Surendra, a close family friend of plaintiff on 11.1.1993 as the plaintiff had requested for the same. Likewise, the cheque bearing No. 0799550 dated 7.2.94 for Rs. 25,000/ drawn on Bank of India, Basaveshwaranagar branch in favour of first defendant was issued by Smt. B.S. Saroja, wife of Jayaram, the cousin of plaintiff, as the plaintiff had requested for the same. Another cheque dated 9.2.94 for Rs. 10,000/- drawn on Vijaya Bank, Banashankari branch in favour of defendant No. 1 was issued by B.K. Swamy, a close friend of plaintiff as he had requested to issue the same. As all the above stated persons did not have cash on hand, they offered to issue cheques, at the request of the plaintiff, directly in the name of defendant No. 1 and the said cheques were handed over to defendant No. 1 by the plaintiff and the same were encashed by defendant No. 1. As all the above stated persons did not have cash on hand, they offered to issue cheques, at the request of the plaintiff, directly in the name of defendant No. 1 and the said cheques were handed over to defendant No. 1 by the plaintiff and the same were encashed by defendant No. 1. It is claimed that though the BDA had executed a Sale deed in favour of the first defendant, paving the way for completion of the transaction, the defendants had failed to complete the same. On repeated demands, the defendants having failed to oblige, and the plaintiff having been always ready and willing to complete the transaction, the suit was filed. The defendants on service of summons had entered appearance and contended that the plaintiff was a total stranger to the defendants and denied that there was any sale transaction between them. It was on the other hand contended that he was a business man dealing in liquor and had applied for the allotment of an industrial site. In the course of his visits to the office of the BDA in this connection, he had come to know one B.R. Jayaram, who was indulging in money lending business. It was alleged that the first defendant had borrowed money from him from time to time. In the course of those transactions the said Jayaram had obtained his signatures on various documents and even on some blank papers, the first defendant claims to have willingly affixed his signatures to those papers, in good faith. It was contended that the money lending business was run by the said Jayaram by lending money through cheques issued by various persons and it was alleged that Jayaram had set up the plaintiff to file the suit claiming on the basis of payments said to have been made through such cheques and also by making use of blank papers on which signatures had been surreptitiously obtained In the above context, it was pointed out that the agreement was not signed on all pages. The only signatures found on that alleged deed was obtained as aforesaid, fraudulently, and that there was no such agreement entered into at all. The alleged acknowledgements shown on the agreement were possibly acknowledgments obtained in the course of money lending transactions that are sought to be cleverly shown as acknowledgment of receipt of money under the agreement. The only signatures found on that alleged deed was obtained as aforesaid, fraudulently, and that there was no such agreement entered into at all. The alleged acknowledgements shown on the agreement were possibly acknowledgments obtained in the course of money lending transactions that are sought to be cleverly shown as acknowledgment of receipt of money under the agreement. On the basis of the above contentions, the court below had framed the following Issues: 1. Whether the plaintiff proves that defendant agreed to sell the site to plaintiff for Rs. 7,50,000/-? 2. Whether the plaintiff proves that he had made payment of Rs. 5,71,001/- by way of advance to defendant? 3. Whether the plaintiff proves that he was put in possession of suit site in pursuance of agreement to sell? 4. Whether the plaintiff proves that he is ready and willing to perform his part of obligation under the, agreement? 5. Whether the plaintiff is entitled to the relief of specific performance? 6. What order or decree? Additional Issue No. 1: Whether the defendants prove that the suit agreement dated 14.8.91 is void as contended? The trial court answered all the issues in the negative, except issue No. 2 which was answered partly in the affirmative and dismissed the suit. It is that which is under challenge in the above appeal. The learned Senior Advocate, Shri S. Vijayashankar, appearing for the learned counsel for the appellant, would contend as follows:- That one of the grounds on which the trial court has held that the appellant had failed to prove the agreement of sale-was that on a comparison of the signature of the Defendants contained in Exhibit P-1, the agreement of sale and Exhibit D-60, a photo copy of the same agreement, when compared did not tally and were not consistent, leading to a suspicion as to the genuineness of the document. It was also held that the evidence of PW-3 and PW-4, who were the attesting witnesses to the agreement, were relatives of the plaintiff and therefore their evidence could not be accepted. The learned Senior Advocate would contend that the said findings are contrary to the evidence of Defendant no. 1. It is pointed out that in the cross-examination of DW. 1 (Dated 5.12.2008) he had admitted the receipt of Rs. 50,000/- and Rs. 35,000/- from the plaintiff on 6.12.1991 and 2.3.1992, respectively. The learned Senior Advocate would contend that the said findings are contrary to the evidence of Defendant no. 1. It is pointed out that in the cross-examination of DW. 1 (Dated 5.12.2008) he had admitted the receipt of Rs. 50,000/- and Rs. 35,000/- from the plaintiff on 6.12.1991 and 2.3.1992, respectively. In this regard he had admitted his signatures marked at Exhibit P(j) and (k). He had also admitted his signature at Exhibit P(h) found on the last page of Exhibit P-1. These admissions were sufficient to reach a conclusion as to the execution of the agreement of sale. It is further contended that it was wholly unjust and inexplicable for the trial court to have discarded the evidence of PW-3 and PW-4, only on the ground that they were said to be the relatives of the plaintiff. There being no prohibition in law in the relative of a party acting as an attesting witness to a document. There was no justification in having treated the said witnesses with such extreme suspicion, when they had been subjected to cross-examination and are not shown to have been discredited in so far as their testimony is concerned. The approach of the trial court in this regard was capricious and has resulted in a miscarriage of justice. It is further sought to be pointed out that the defendant no. 1 had denied some of his signatures on Exhibit P-1 while admitting others. In this regard the plaintiff has tendered evidence to assert that the signatures were indeed that of the defendant. The plaintiff had also examined the attesting witnesses to support his contention. The onus of proving that the signatures were forged or concocted was clearly on the defendant. Inspite of the defendant not having taken any steps to have the signatures verified through a hand writing expert, the trial court had not chosen to draw an adverse inference, which it ought to have, in the fitness of things. It is also contended that it was a fact that the plaintiff had borrowed money from various persons in the form of cheques, which were in turn handed over to the defendant as part of the sale consideration. This has been negated by the trial court as being unconnected with the sale transaction on the footing that the cheques were issued by persons not at all connected with the transaction. This has been negated by the trial court as being unconnected with the sale transaction on the footing that the cheques were issued by persons not at all connected with the transaction. But the trial court has ignored the evidence that the said persons were all related to the plaintiff, which has been elaborated in the pleadings itself. This aspect of the matter which was crucial to the plaintiff has been improperly appreciated. It is contended that the half hearted finding of the court below that the plaintiff had proved only the payment of a part of the sale consideration, in a sum of Rs. 85,000/- and had not proved the payment of the actual sum of Rs. 5,71,000/-, is a contradiction in terms. It is not possible to reconcile the finding of the court that the Agreement is not established, but at the same time to arrive at a finding that a part of the sale consideration having been paid, is established. Further, the trial court has clearly overlooked the admission of DW-1, on page 12 of his cross-examination, the following three payments: Rs. 1,01,000/-, Rs. 35,000/- and Rs. 10,000/-. On the same page, the witness is seen to have admitted the further receipt of Rs. 35,000/- on 2.3.1992. He has admitted two shares in respect of the receipt of Rs. 50,000/- by way of cheque and Rs. 1,25,000/- on 4.4.1993 by way of cash. Further, though the defendant had denied the receipt of Rs. 2 lakh, covered under three cheques, each for a sum of Rs. 90,000/-, Rs. 60,000/- and Rs. 50,000/-. Two cheques were dated 1.1.1994 and one was dated 12.1.1993. In order to prove the encashment of the same by the defendants, the plaintiff had examined PW-12, the manager of a bank, through which the cheques were encashed by the defendants. This material evidence has been ignored by the trial court in arriving at an incorrect finding that only a part of the payments have been proved. It is also contended that the finding of the trial court that the plaintiff had not established his financial capacity in order to prove his readiness and willingness to complete the transaction is arrived at while completely ignoring the material evidence at Exhibits. P-151 and 153 to establish that he had the finances to purchase the property in question. It is also contended that the finding of the trial court that the plaintiff had not established his financial capacity in order to prove his readiness and willingness to complete the transaction is arrived at while completely ignoring the material evidence at Exhibits. P-151 and 153 to establish that he had the finances to purchase the property in question. It is pointed out that the want of bona fides on the part of the first respondent is writ large in the face of the circumstance that there has been a deliberate suppression of an agreement of sale executed during the pendency of the proceedings in favour of Respondent no. 3, now impleaded. It was also not brought to the attention of the trial court that the third respondent had filed a suit against the first respondent and his wife. It is also a fact that the moment the suit of the present appellant was dismissed on 9.2.2010, a sale deed was executed in favour of the third respondent and the suit filed by the third respondent was promptly compromised as on 10.3.2010. This would indicate that the respondents have not come to court with clean hands. In the face of the above infirmities in the reasoning of the court below, it is contended that the judgment of the court below be set aside and the suit be decreed as prayed for. 2. On the other hand, the learned counsel, Shri K.V. Narasimhan appearing for the respondents 1 and 2 seeks to justify the judgment of the court below and places reliance on the following authorities. 1. N.P. Thirugnanam (D) by L.Rs., Vs. Dr. R. Jagan Mohan Rao and others, AIR 1996 SC 116 , 2. JT (2010) 10 SC 565 , 3. N. Ethirajulu Naidu Vs. K.R. Chinnikrishnan Chettiar, AIR 1975 Mad 333 , 4. K.S. Vidyanadam and Others Vs. Vairavan, AIR 1997 SC 1751 , 5. ., AIR 2003 SC 1391 , 6. V.S. Munirathanam, since deceased by LRs. Vs. P. Sundaram, since deceased by LRs and Others, AIR 2004 Kant 383 , 7. J. Baby Ammal W/o Sri Jayaram Vs. P. Sumithra Devi and D/o S. Ponnuswamy, Major, ILR (2006) KAR 2552. K.S. Vidyanadam and Others Vs. Vairavan, AIR 1997 SC 1751 , 5. ., AIR 2003 SC 1391 , 6. V.S. Munirathanam, since deceased by LRs. Vs. P. Sundaram, since deceased by LRs and Others, AIR 2004 Kant 383 , 7. J. Baby Ammal W/o Sri Jayaram Vs. P. Sumithra Devi and D/o S. Ponnuswamy, Major, ILR (2006) KAR 2552. On a consideration of the rival pleadings and the material on record and a rather detailed judgment of the trial court, it would be sufficient if the judgment of the trial court is tested on the broad contours of the court's findings in addressing the grounds raised in the appeal. To adjudge whether the plaintiff was ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior to and subsequent to the filing of the suit along with other attendant circumstances. The amount of consideration which he has to pay to the defendant must necessarily be proved to be available. Right from the date of the execution till date of the decree, he must prove that he was ready and has always been willing to perform his part of the contract. The appellant at paragraph No. 5A(i), (ii), (iii), (iv), (v) (page No. 9 to 12 of the paper book) avers that he was "short of funds" and requested Smt. Shanthamma, Smt. R. Sudha, Smt. Shylaja, Smt. B.S. Saroja, Shri B.K. Swamy to lend him certain sum of money. Thus, it is apparent from the pleadings that he was a person who was not flush with funds. Further the plaintiff in his cross-examination dated 17.7.2008 had deposed that he had no money to pay the balance sale consideration on the date of entering into the alleged transaction. He had no money on 11.1.1993 to pay defendant no. 1. Thus, the plaintiff was never ready and willing to perform his part of contract under the agreement to sell at Ex. P1. Further, in a suit for specific performance, the plaintiff should not only plead and prove the terms of the agreement, but should also plead and prove his readiness and willingness to perform his obligations under the contract in terms of the same. The plaintiff has failed to prove that he was ready and willing to perform his obligations under the agreement to sell. The plaintiff has failed to prove that he was ready and willing to perform his obligations under the agreement to sell. Not only did he have no ready means to perform his obligation, he neither had the willingness to perform. The plaintiff admits that he was not an income tax assessee in the year 1991. He had no document to show that he was possessed of Rs. 7,00,000/- during 1991. He has further admitted that he had not demanded the defendants to execute the sale deed between 1991 and 1996. These aspects clearly reflect that the plaintiff has failed to satisfy the ingredients of Section 16(c) of the Specific Relief Act, 1963. It is also to be kept in view that the onus of proving that a particular document, which is the basis of a suit was duly executed by the defendant, must be established by the plaintiff. It is the specific case of the defendants that B.R. Jayaram, PW. 3 and B.K. Swamy, PW. 2, the employees of BDA, had misused the blank papers signed by the defendants in the course of their loan transactions. Thus, the onus to prove the document at Ex. P1 was on the plaintiff. On a perusal of the document at Ex. P1, it was clear that it did not bear the signature of the defendants on all the pages (Except page No. 5). In this regard, the plaintiff in his cross-examination has stated that it was true that normally both buyer and seller signs all the pages of an agreement. There was no reason for not signing all the pages of an agreement. The name of the second defendant had been subsequently written. The initials of the first defendant had been wrongly typed. The document at Ex. D60 is said to be a copy of the agreement to sell given by the plaintiff to the police annexed to a complaint that he had lodged. The document at Ex. D.60 did not bear the signature of PW4. The signature of PW3 in Ex. P1 was in English, whereas in Ex. D60 it was in Kannada. PW3 has stated in his cross-examination on 11.8.2005 that he used to sign the documents which were in English, in English and the documents in Kannada, in Kannada. If it was so, the signature on Ex. D60 was in Kannada though Ex. D60 was in English. P1 was in English, whereas in Ex. D60 it was in Kannada. PW3 has stated in his cross-examination on 11.8.2005 that he used to sign the documents which were in English, in English and the documents in Kannada, in Kannada. If it was so, the signature on Ex. D60 was in Kannada though Ex. D60 was in English. Further, there was no entry against Sl. No. 7 on the obverse of page No. 5 of Ex. P1. Thus, the plaintiff has miserably failed to prove that the agreement to sell at Ex. P1 was executed by the Defendants. Further, the time limits prescribed under the agreement by the parties must be given some significance. In that, the same cannot be ignored altogether. The prompt steps taken by the plaintiff must be apparent. The alleged agreement to sell at Ex. P1 comprised of certain clauses with stipulations and a time-frame for fulfillment of the same, which reads thus: Clause 2: The vendor has to execute the sale deed within 15 days from the vendee demanding the vendor to do so. Clause 3: The vendor has to obtain possession certificate, conditional sale deed, khata certificate from BDA within 30 days. Clause 5: Irrevocable General Power of Attorney has to be executed in favour of the Vendee. Clause 6: The Title deed of the suit properties are to be handed over to the vendee within 30 days. Clause 7: The vendor has to obtain the sanctioned plan as per the requirement of the vendee. Clause 8: Income tax Clearance Certificate has to be obtained by the vendor. Clause 10: The Vendee has to be put in possession of the property. However, none of the above in the alleged agreement to sell were fulfilled by the defendants. Inspite of it, the plaintiff had admitted that he had not demanded the defendants to execute the sale deed between 1991 and 1996. As already stated, the trial court has embarked on a minute examination of the material on record and has arrived at many findings-which have further fortified its conviction that the plaintiff has not made out a case. Some of these findings and observations are as follows: a) Vijay is the middle-man, a real-estate agent who, according to the plaintiff, introduced him to the defendants. He was the person who brought the stamp paper. He drafted Ex. P1, the agreement to sell. Some of these findings and observations are as follows: a) Vijay is the middle-man, a real-estate agent who, according to the plaintiff, introduced him to the defendants. He was the person who brought the stamp paper. He drafted Ex. P1, the agreement to sell. It was typed in Vijay's office. (Page No. 52 and 53 of paper book). However, he has not been examined. (Page 487 of the paper book) b) The signature of PW4 is not forthcoming in Ex. D60 and the signature of PW3 is in Kannada, which is contrary to the one found in Ex. P1. (Page No. 488 of the paper book) c) None of the conditions stipulated in Ex. P1 has been fulfilled by the defendants, In-spite of it, the plaintiff contends that he kept on paying him money, that too through others, without calling upon him to execute the sale deed. This version of the plaintiff cannot be accepted. (Page 495 of the paper book). d) Ex. P142 and 143 cheques have been issued by the wife of PW3 to the defendants. Wife of PW3 is a housewife and was not shown to have any independent source of income. Thus, at the instance of PW3 the amounts have passed to defendants which can only be presumed to be a loan transaction. (Page No. 497) e) Ex. D3 is a promissory note executed by defendants in favour of PW2. The money was repaid by the defendants. Inspite of it, he had made an application seeking change of khata of the suit property in his favour. This was opposed successfully by the defendants. Inspite of this history, PW2 goes on to say that he never knew the defendants and he had no transaction with them. Thus, his testimony is unreliable. (Page No. 499) f) The advance amount alleged to have been paid under Ex. P1 is 51,001/-, Remaining is alleged to be paid at the time of registration. However, plaintiff contends that he paid 5,71,001/-. The said payments are alleged to be made through PW2, PW3's wife and mother etc. There is no direct transaction at all between the plaintiff and defendants. The plaintiff in his cross-examination states: "The second advance was demanded by defendant No. 1 with Jayaram. However, plaintiff contends that he paid 5,71,001/-. The said payments are alleged to be made through PW2, PW3's wife and mother etc. There is no direct transaction at all between the plaintiff and defendants. The plaintiff in his cross-examination states: "The second advance was demanded by defendant No. 1 with Jayaram. I used to pay the amount to Jayaram and he was paying the same to defendant No. 1 Jayaram used to inform me the demands made by defendant No. 1. (Page No. 57 of paper book). " I was not present at the time of making cheque payments. My brother Jayaram had told me about endorsements made as Ex. P1L, P1M, P1P, P1G and PIH are cheque payments". (Page 58 of paper book). This was apparently because the defendants did not know plaintiff at all and all they had was loan transaction with PW2 and PW3. (Page No. 500). g) The plaintiff instead of calling upon the defendants to comply with the terms of Ex. P1, is said to have gone on paying them the amounts which was not even agreed upon under Ex. P1. This is difficult to accept. (Page 501) h) The plaintiff being an agriculturist, r/o Koratagere in Tumkur purchasing an industrial site appears to be doubtful. (Page No. 502) i) Stamp vendor J.S. Saraswathamma ought to have been examined. j) The alleged endorsements at the backside of page No. 5 of Ex. P1 is not proved. No person present at that time or writer has been examined to prove the same. (Page No. 521). In-fact, the plaintiff states in his cross-examination: "It is true that there is a difference in the handwriting at Sl. No. 8 (endorsement). It is true that the cheque numbers referred at Sl. No. 6 and 8 in the endorsement is not of my account. No amount is paid as per Sl. No. 7. I do not remember as to who wrote endorsement at Sl. No. 1 to 8 of the Ex. P1". (Page 61 of paper book) k) There is no readiness and willingness on the part of the plaintiff to perform his part of the alleged contract. (Page No. 551) l) The plaintiff has not approached the court within reasonable time and with clean hands. (Page No. 552) m) The persons who issued the alleged cheques have not been examined. P1". (Page 61 of paper book) k) There is no readiness and willingness on the part of the plaintiff to perform his part of the alleged contract. (Page No. 551) l) The plaintiff has not approached the court within reasonable time and with clean hands. (Page No. 552) m) The persons who issued the alleged cheques have not been examined. n) The Defendants have obtained sale deed from BDA concerning the suit property for Rs. 12,55,835/- (Ex. D55) but it is said the agreement to sell is for Rs. 7,50,001/-. The transaction if permitted would be unconscionable. (Page No. 554). There is also an unexplained delay in filing the suit having regard to the nature of relief sought. The alleged agreement to sell is dated 14.8.1991. None of the conditions in the alleged agreement to sell is fulfilled by the defendants. The notice is sent for the first time on 25.9.1996. The defendants replied stating that they did not know who the plaintiff was. This was on 21.10.1996. But the Suit is filed only on 5.2.1997. There is no explanation offered by the plaintiff as to why he remained inert from the date of agreement till the filing of the suit. Therefore, on an overall consideration of the material on record, the judgment of the court below cannot be faulted. The appeal is dismissed.