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2019 DIGILAW 1245 (KAR)

K. Vimal Kumar Jain v. N. Sujatha Sridhar

2019-06-13

H.B.PRABHAKARA SASTRY

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JUDGMENT : H.B. Prabhakara Sastry, J. The present appellant was the defendant against whom the present respondent as a plaintiff had instituted a suit in the Court of learned XIX Addl.City Civil & Sessions Judge, Bengaluru City, (hereinafter for brevity referred to as 'trial Court'), in O.S.No.1145/2000, for recovery of a sum of Rs. 1,10,000/- with Court cost and such other reliefs as the Court deems fit. The said suit came to be decreed by the judgment and decree of the trial Court dated 31.01.2006. It is against the said judgment and decree, the defendant in the trial Court has preferred this appeal. 2. The summary of the case of the plaintiff in the trial Court is that the plaintiff and defendant entered into an Agreement of Sale on 27.10.1999, wherein the defendant had agreed to sell the suit schedule property to the plaintiff for a sum of Rs. 1,40,000/-. In that connection, the defendant had received a sum of Rs. 55,000/- as an advance amount in the sale price through the cheque drawn in favour of the defendant and had encashed the same. Thereafter, even though the plaintiff was ready and willing to purchase the site as per the terms of the Agreement of Sale, but, she noticed that the site was measuring shorter than what was agreed to be sold by the defendant to the plaintiff. In the Sale Agreement, it was shown that the site measures 30' x 40' by the defendant, however, the site was not actually measuring such measurement and it was shown to be measuring only 1.1 gunta. As such, the plaintiff requested the defendant to come and fix the boundary of the site after measuring the site. In that regard, she had also issued a legal notice. But, the said notice did not invoke any response. Since the defendant never came forward to fix the boundary of the site with its correct measurement as per the terms of the agreement, the plaintiff was constrained to issue one more legal notice calling upon him to refund the advance amount paid by her as per the terms of the agreement. The defendant sent an untenable reply disowning his liability, which constrained the plaintiff to institute a suit for recovery of money of a sum of Rs. 1,10,000/-. 3. The defendant sent an untenable reply disowning his liability, which constrained the plaintiff to institute a suit for recovery of money of a sum of Rs. 1,10,000/-. 3. In response to the summons, the defendant tendered his appearance and filed his written statement, wherein he admitted that he being the owner of suit schedule property, had entered into an agreement with the plaintiff for the sale of the property for a consideration of Rs. 1,40,000/-. However, he disputed that there was any breach of terms of the agreement from his side. On the other hand, his contention was that the plaintiff was furnished with the copy of the original Sale Deed standing in the favour of the defendant/vendor, wherein the measurement of the property was given, as such, there was no reason for the plaintiff to believe that the site was not measuring 30' x 40' and accuse the defendant for the alleged breach of the contract. 4. Based on the pleadings of the parties, the trial Court framed the following issues : 1. Does Plaintiff proves that the Defendant has committed breach of Agreement dt.27.10.1999 as averred? 2. Is Plaintiff entitled to the suit claim? 3. What relief? In order to prove her case, the plaintiff got examined one Sri T.V.Sridhar as PW-1 and got marked documents at Exs.P-1 to P-4. The defendant got himself examined as DW-1 and got marked the document at Ex.D-1. After hearing both side, the trial Court by its judgment and decree dated 31.01.2006, decreed the suit of the plaintiff for a sum of Rs. 1,10,000/- with Court cost and current interest at 6% p.a. from the date of the suit till realisation. It is against the said judgment and decree, the defendant has preferred this appeal. 5. Lower Court records were called for and the same are placed before this Court. 6. Heard the arguments of the learned counsel from both side and perused the materials placed before this Court. 7. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court. 8. The learned counsel for the appellant in her arguments submitted that the fact of the appellant (defendant) entering into an Agreement of Sale with the plaintiff as per Ex.P-2 and he having received an advance sale consideration in part to a sum of Rs. 55,000/- is not in dispute. 8. The learned counsel for the appellant in her arguments submitted that the fact of the appellant (defendant) entering into an Agreement of Sale with the plaintiff as per Ex.P-2 and he having received an advance sale consideration in part to a sum of Rs. 55,000/- is not in dispute. Learned counsel also submitted that the contention of the plaintiff that the site was actually not measuring 30' x 40', but, it was measuring a bit shorter than the said measurement, is also not in dispute. However, the only question is as to who has committed the breach of agreement? Submitting so, the learned counsel submitted that since the defendant has furnished the copies of his title to the purchaser i.e., the plaintiff, from which, she could have ascertained the measurement of the site, the alleged breach cannot be attributed to the defendant, but, the alleged breach is on the part of the plaintiff. As such, the finding of the trial Court is erroneous, which deserves to be set aside and the suit to be dismissed. 9. The learned counsel for the respondent/plaintiff in her arguments submitted that, admittedly there is an agreement between the parties with respect to the sale and purchase of the suit schedule property which is exhibited as Ex.P-2. The contents of the said agreement are not in dispute. It is the site measuring 30' x 40' that was agreed to be sold to the plaintiff, but, not any site measuring shorter than what is shown in Ex.P-2. She further submitted that admittedly the site was shorter than its agreed measurement. There is no breach on the part of the plaintiff since she has expressed her readiness and willingness to go ahead with the contract well in time. The plaintiff has caused notice to the defendant as per Ex.P-3 and had called upon the defendant to come and physically ascertain the measurement of the site and confirm it with marking the boundaries as per the terms of Ex.P-2. However, the defendant did not reply to the said notice, which constrained the plaintiff to withdraw from her commitment and claim for the refund of the amount. However, the defendant did not reply to the said notice, which constrained the plaintiff to withdraw from her commitment and claim for the refund of the amount. Since it was agreed to between the parties that in case of default from the vendor, twice the amount has to be paid to the purchaser i.e., the plaintiff, the trial Court has rightly decreed the suit for a sum of Rs. 1,10,000/-. 10. With respect to the contention of the learned counsel for the appellant/defendant that though no specific prayer was made in the plaint for the interest to be paid by the defendant, still the trial Court has awarded the interest at 6% p.a., the learned counsel for the respondent/plaintiff submitted that the prayer "any other relief as the Hon'ble Court deems fit" includes the prayer for interest and further the interest awarded is only a nominal at the rate of 6% p.a. 11. In the light of the above arguments of the learned counsels appearing for the parties, the only point that arise for my consideration is : Whether the judgment and decree under appeal deserves to be set aside and the suit of the plaintiff deserves to be dismissed? From the arguments of the learned counsels for both parties, it is not in dispute that the plaintiff and defendant had entered into an agreement with respect to the sale of immovable property which is shown as suit schedule property as per the agreement at Ex.P-2. The contents of the agreement at Ex.P-2 are not in dispute. The said agreement in its schedule mentions that the site agreed to be sold by the defendant to the plaintiff should have measured East to West - 30' and North to South 40', with the specific boundaries shown in the schedule. However, according to the plaintiff, the site was not measuring 30' x 40' i.e., 1200 sq.ft., but, it was measuring shorter measurement, which according to the plaintiff, was approximately 1099.89 sq.ft. which is equivalent to 1.1 guntas. It is since the site was measuring less than what was shown and the defendant was refusing to accept the proposal for refund of the consideration, the plaintiff was constrained to institute a suit. 12. which is equivalent to 1.1 guntas. It is since the site was measuring less than what was shown and the defendant was refusing to accept the proposal for refund of the consideration, the plaintiff was constrained to institute a suit. 12. The defendant though has not disputed that the site was not exactly measuring 30' x 40', but, contends that the document with respect to the title of the vendor furnished to the plaintiff was clearly depicting it as 1.1 gunta, as such, the plaintiff should have been more careful in ensuring the correct measurement of the site before entering into an agreement. Neither the defendant has shown or stated as what are all the documents that were alleged to have been handed over to the plaintiff before she entering an agreement with him as per Ex.P-2 nor elicited any details in that regard in the cross-examination of PW-1. A perusal of the cross-examination of PW-1 would only go to show that the witness has stated that before entering into agreement at Ex.P-2, she had gone through the defendant's Sale Deed, Encumbrance Certificate and other documents in respect of site No.51. Assuming for a moment that the defendant had shown his vendor's title deed to the plaintiff and plaintiff had gone through the same, but, nothing is on record to show that it was exactly of such measurement site that was agreed to be sold by the defendant to the plaintiff. It is not even the case of the defendant even in the form of a suggestion made to PW-1 that the plaintiff was given the knowledge or notice or information about the non-accumulation of any additional area to the measurement as shown in the vendor's title deed which is said to have been furnished to the purchaser. In such a situation, the parties would be bound by Ex.P-2, which is an Agreement of Sale between them. It is also for the reason that when the seller himself is aware of the fact that the site which he is going to sell to the plaintiff is not measuring 30' x 40', then, he ought not to have promised to sell the site of higher measurement than what he himself does not possess. It is also for the reason that when the seller himself is aware of the fact that the site which he is going to sell to the plaintiff is not measuring 30' x 40', then, he ought not to have promised to sell the site of higher measurement than what he himself does not possess. In such an event, he should have been more careful and diligent in showing the measurement of the site not as 30' x 40', but, he should have restricted himself by showing it as measuring 1.1 gunta. Being the seller of the property holding the necessary documents, as well the actual physical possession of the site with him, the seller is required to be more clear in his promise to the purchaser as to what he is going to sell or what he has undertaken to be sold to the plaintiff for a consideration. 13. Thus, when the seller has agreed to sell the site measuring 30' x 40', it is the duty on the part of the seller to see that the purchaser will be delivered with a site measuring 30' x 40' with no variations in its measurement. Thus, the seller at this stage cannot expect the buyer to be more diligent in ascertaining the measurement of the site before purchase. Further assuming that the buyer (plaintiff) also is equally required to be diligent while purchasing the site, then, Ex.P-3, which is the legal notice issued by the plaintiff to the defendant, the receipt of which by the defendant is not in dispute, gives an answer to the same. Before putting final signature for the sale, the plaintiff as a prudent buyer requested the defendant to come and measure the actual measurements of the site and fix the boundaries, so that, once it is treated that the site measures 1200 sq.ft., she was ready and willing for the payment of the balance consideration on getting the Sale Deed executed and registered in her favour. Thus, before the final ink for the Sale Deed would be put, the plaintiff, as a diligent purchaser, has discharged her responsibility and brought to the notice of the defendant that actually the site was not measuring 1200 sq.ft., though it is shown to be measuring so much in the agreement at Ex.P-2. 14. Thus, before the final ink for the Sale Deed would be put, the plaintiff, as a diligent purchaser, has discharged her responsibility and brought to the notice of the defendant that actually the site was not measuring 1200 sq.ft., though it is shown to be measuring so much in the agreement at Ex.P-2. 14. The defendant, as a vendor, even after receiving the notice at Ex.P-3, has not bothered to respond to the said notice in any manner, at least, getting the site measured and demonstrating to the purchaser/plaintiff that the site was measuring 1200 sq.ft. Since the defendant himself was clear that the site was not measuring so much, he kept quite, which constrained the plaintiff to rescind from the contract and issue a legal notice as per Ex.P-4 to the defendant asking him to refund the advance amount as per the terms of the agreement at Ex.P-2. It was at that particular point of time and as an after thought, the defendant has come up with his reply as per Ex.D-1, stating that the plaintiff should have measured the site before entering into the agreement as per Ex.P-2. Except taking such a contention, neither in his reply notice nor even in his written statement or at least even in the argument also, it was not shown or convinced that before entering into an agreement as per Ex.P-2, the purchaser had a legal duty to measure the site. 15. Therefore, the contention of the learned counsel for the appellant that before entering into an agreement as per Ex.P-2, the plaintiff ought to have measured the site and satisfy with herself, is not acceptable. On the other hand, it is reiterated that, where the vendor, as a promissor, has promised to sell the property which in no way lesser than in its measurement to an extent of 1200 sq.ft., should have shown that the site was actually measuring 1200 sq.ft. Since the defendant has not confirmed the measurement of the suit schedule property as measuring 1200 sq.ft., on the other hand, the learned counsel for the appellant has conceded that the site is measuring to some extent shorter than what actually it is shown in Ex.P-2, without any hesitation, it can be held that the committing of breach of agreement at Ex.P-2 was not by the plaintiff, but, it was by the defendant. When the breach of agreement is by the defendant, the plaintiff cannot be found fault with in serving a notice as per Ex.P-3, calling for the refund of the amount. 15. Admittedly, the agreement at Ex.P-2 entitles the purchaser to get a refund at twice the advance amount paid by her. Since the advance amount paid is admittedly a sum of Rs. 55,000/-, the trial Court has rightly decreed the suit of the plaintiff for a sum of Rs. 1,10,000/-. In the said finding of the trial Court, I do not find any error or irregularity. 16. So far as awarding the interest at the rate of 6% p.a. is concerned, no doubt, the plaintiff in her prayer has not specifically requested for awarding the interest on the claim amount, however, she had made a prayer in the trial Court to pass such other orders as it deems fit in the facts and circumstances of the case. No doubt, such a prayer is a general prayer made, however, considering the nature of the transaction and of the fact that for considerable length of time, the plaintiff was deprived of her money, as well the site and the very purpose of the purchase of the site has been defeated, the trial Court has awarded the interest, that too, not at a higher rate, but, only at 6% p.a. which is a simple interest. Since in the facts and circumstances of the case, the trial Court has passed such an order in its discretion, I do not find any incorrectness or irregularity. As such, the argument of the learned counsel for the appellant on those lines is also not acceptable. In the result, I do not find any reason to interfere in the judgment and decree passed by the trial Court. 17. Accordingly, I proceed to pass the following order: ORDER The Appeal stands dismissed. The judgment and decree dated 31.01.2006, passed by the learned XIX Addl.City Civil & Sessions Judge, Bengaluru City, in O.S.No.1145/2000, is confirmed. The Registry is directed to transmit a copy of this judgment along with lower Court records to the lower Court without delay.