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2020 DIGILAW 2110 (KAR)

Venkatamma v. R. Sudhakar

2020-10-22

S.SUJATHA, SACHIN SHANKAR MAGADUM

body2020
JUDGMENT Shankar Magadum, J. - The captioned appeal is filed by the appellants/defendants challenging the judgment and decree dated 11.08.2011 passed in O.S.No.2865/2006 on the file of the Principal Senior Civil Judge, Bengaluru Rural District, Bengaluru. 2. The facts leading to the case are as under: The respondent/plaintiff filed a suit for recovery seeking recovery of Rs.15,00,000/- with interest at the rate of 2% per annum from the date of the suit till the date of realization. The case of the respondent/plaintiff before the Court below is that the present appellants/defendants are the Class-I heirs of Late Chowdappa. The appellants/defendants offered to sell the suit land bearing Sy.No.27/2A of Kommagatta Village, Kengeri Hobli, Bengaluru South Taluk totally measuring 1 acre 24 guntas out of 2 acres 20 guntas. Accordingly, the appellants/defendants executed an agreement of sale and the sale consideration was fixed at Rs.30,00,000/-. The respondent/plaintiff has further specifically pleaded in the plaint that appellants/defendants represented to the respondent/plaintiff that the schedule property is free from acquisition and they have a marketable title over the schedule property. In this context, the respondent/plaintiff proceeded to accept the offer and agreed to purchase the schedule property and accordingly, an agreement of sale came to be executed on 02.01.2006 and pursuant to execution of agreement of sale, the appellants/defendants received a total sum of Rs.10,00,000/- as advance towards sale consideration. The respondent/plaintiff further specifically averred in the plaint that a sum of Rs.5,00,000/- was paid by way of cheque bearing No.498141 dated 02.01.2006 and Rs.5,00,000/- was paid by way of cash. The respondent/plaintiff further contended that it was agreed by the parties that sale transaction would be completed within a period of three months. The respondent/plaintiff further averred in the plaint that he was ever ready and willing to perform his part of contract and was ready to pay the balance sale consideration of Rs.20,00,000/-. However, respondent/plaintiff was shocked when he learnt that much prior to entering into an agreement, the schedule property was subject matter of acquisition by KIADB and said acquisition was much prior to date of execution of suit agreement dated 02.01.2006. When respondent/plaintiff sought clarification from the appellants/defendants, the appellants herein assured to respondent/plaintiff that a representation is already submitted to the State with a request to delete the suit land from acquisition. When respondent/plaintiff sought clarification from the appellants/defendants, the appellants herein assured to respondent/plaintiff that a representation is already submitted to the State with a request to delete the suit land from acquisition. When respondent/plaintiff realized that appellants/defendants have been giving false promises with a view to cheat the respondent/plaintiff, legal notice was issued on 01.06.2006 calling upon the appellants/defendants to refund the advance amount of Rs.10,00,000/-. The respondent/plaintiff also invoking the default clause specifically averred in the plaint that appellants/defendants have indulged in playing fraud on the respondent/plaintiff and hence, sought Rs.5,00,000/- towards damages as contemplated in the suit agreement. On these set of facts, the respondent/plaintiff filed a recovery suit seeking recovery of Rs.10,00,000/- which is towards advance amount and Rs.5,00,000/- for having played fraud on the respondent/plaintiff by suppressing the acquisition of suit land by the KIADB. Per contra, the appellants/defendants on receipt of summons, contested the proceedings and by filing written statement, the appellants/defendants herein stoutly denied the entire averments made in the plaint. The appellants/defendants though admitted the execution of agreement vide Ex.P-1 but, however, disputed the payment of Rs.10,00,000/- as advance amount. The appellants/defendants specifically contended in the written statement that under agreement, the respondent/plaintiff has only paid Rs.5,00,000/- through cheque. The appellants/defendants at para 4 of the written statement have set up a new case by specifically contending that they have received Rs.5,00,000/- with an assurance from the respondent/plaintiff that in fact he would make an attempt and get the property acquired deleted from the notification. The appellants/defendants have further contended that in the event respondent/plaintiff succeeds in getting the property de-notified, the appellants/defendants have to either execute the sale deed or they have to pay a sum of Rs.10,00,000/- to respondent/plaintiff. The appellants/defendants further contended that if respondent/plaintiff fails to get acquisition proceedings dropped, then respondent/plaintiff is not entitled for repayment of Rs.5,00,000/- paid by him. The appellants/defendants on these set of counter allegations, set up a defence that the suit agreement came to be executed as per the above said terms. They further specifically denied the allegations in regard to fraud played by them on respondent/plaintiff. The Trial Court based on the rival contentions, formulated the following issues: 1) Whether plaintiff proves the payment of advance amount of Rs.5,00,000/- to defendant by way of cash? 2) Whether plaintiff proves his entitlement for liquidated damages of Rs.5,00,000/-? They further specifically denied the allegations in regard to fraud played by them on respondent/plaintiff. The Trial Court based on the rival contentions, formulated the following issues: 1) Whether plaintiff proves the payment of advance amount of Rs.5,00,000/- to defendant by way of cash? 2) Whether plaintiff proves his entitlement for liquidated damages of Rs.5,00,000/-? 3) Is there no cause of action for suit? 4) To what order or decree? The respondent/plaintiff in support of his contention, examined himself as PW.1 and one independent witness as PW.2. In support of his oral evidence, he has produced documentary evidence vide Exs.P-1 to P-11. The appellants/defendants in support of their contention have examined respondent No.3/defendant No.3 as DW.1 and by way of rebuttal evidence relied on documentary evidence vide Exs.D-1 to D-4. The Trial Court on appreciation of pleadings, oral and documentary evidence has proceeded to answer issue Nos.1 and 2 in the affirmative. The Trial Court while examining issue No.1 has examined the oral evidence of PW.1 and also Ex.P-1 which is agreement of sale executed by appellants/defendants herein. Further, Trial Court has also examined evidence of PW.2, who happens to be a witness to agreement of sale vide Ex.P-1. The Trial Court on assessing the evidence of PW.1 and PW.2 coupled with recitals in Ex.P-1 has held that since the due execution of agreement of sale is admitted by the defendants and nothing is elicited in the cross-examination of PW.2, who is a witness to the agreement of sale, the issue No.1 is answered in the affirmative holding that respondent/plaintiff has proved the payment of Rs.10,00,000/- pursuant to execution of agreement of sale by appellants/defendants. The Trial Court has also taken note of the signatures of defendants found in Ex.P-1 and it has come in evidence of PW.2, wherein he has identified the signatures of plaintiff and defendants on Ex.P-1. On these set of reasonings, the Trial Court proceeded to answer issue No.1 in the affirmative. While answering issue No.2, the Trial Court has examined the damages clause incorporated in agreement of sale vide Ex.P-1. As per the damage clause, it is agreed by both the parties that in the event either of the parties to the agreement commit default and while the other party is ready and willing to perform his or their part of contract, the party at fault shall compensate the other by paying damages of Rs.5,00,000/-. As per the damage clause, it is agreed by both the parties that in the event either of the parties to the agreement commit default and while the other party is ready and willing to perform his or their part of contract, the party at fault shall compensate the other by paying damages of Rs.5,00,000/-. The Trial Court while examining the above said issue has assessed the pleadings as well as the oral and documentary evidence adduced by respondent/plaintiff. The Trial Court was of the view that the evidence on record clearly demonstrates that respondent/plaintiff was willing to perform his part of contract. The Trial Court was of the view that, however, appellants/defendants who were very much aware that the suit land was also acquired by KIADB much prior to acquisition of agreement of sale vide Ex.P-1 have entered into this transaction knowing fully well that they cannot fully perform their part of the contract and execute the sale deed. The Trial Court has drawn adverse inference against appellants/ defendants for not setting up a case which is narrated in para 4 of the written statement, by issuing reply notice at first instance. The Trial Court has proceeded to answer issue No.2 in the affirmative by holding that defendants have deliberately suppressed the fact of acquisition by KIADB. The Trial Court has also taken note of the recital in agreement of sale vide Ex.P-1, wherein the appellants/defendants have stated in unequivocal terms that the suit land is not subject to any attachment, acquisition, litigation or any other encumbrances. On these set of reasonings, the Trial Court has proceeded to answer issue No.2 in the affirmative by holding that respondent/plaintiff has proved and established that he is entitled for liquidated damages of Rs.5,00,000/-. The Trial Court has answered issue No.3 in negative by holding that the pleadings in entirety would clearly disclose cause of action to seek recovery of Rs.10,00,000/- towards advance amount and Rs.5,00,000/- towards liquidating damages. On these set of reasonings, the Trial Court has decreed the suit directing the appellants/defendants to pay decreetal amount of Rs.15,00,000/- with interest at the rate of 10% of Rs.10,00,000/- from the date of suit till the decree and future interest at the rate of 6% on Rs.10,00,000/- till realization. Being aggrieved by the judgment and decree passed by the Trial Court, the appellants/defendants are before this Court. 3. Being aggrieved by the judgment and decree passed by the Trial Court, the appellants/defendants are before this Court. 3. Learned counsel appearing for the appellants/defendants would vehemently argue and contend before this Court that respondent/plaintiff having not shown his readiness and willingness to perform his part of contract by paying balance sale consideration of Rs.20,00,000/- and in absence of seeking relief of specific performance of contract cannot maintain the present suit for recovery of earnest money and damages and in this background, the learned counsel for the appellants would vehemently argue and contend that the finding on issue No.3 that respondent/plaintiff has established that he has cause of action suffers from serious infirmity and as such, warrants interference by this Court. Learned counsel would further argue and contend before this Court that respondent/plaintiff was not eligible to buy an agricultural land and having realized the same has come up with this suit for recovery of advance amount and hence, would submit to this Court that it is the respondent/plaintiff who has committed breach of the agreement and as such, is not entitled for recovery of money paid under the agreement. Insofar as payment under the agreement of sale vide Ex.P-1 is concerned, learned counsel for the appellants would submit before this Court that there is absolutely no clinching evidence to demonstrate that respondent/plaintiff has paid Rs.5,00,000/- in cash apart from payment of Rs.5,00,000/- through cheque. The finding of the Trial Court that payment in cash to the tune of Rs.5,00,000/- is also proved by the respondent/plaintiff is in absence of clinching evidence to that effect. He would submit to this Court that said finding is arrived at in absence of clinching evidence and hence, would submit to this Court that the finding recorded by the Court below on issue No.1 needs interference. Learned counsel for the appellants/ defendants would vehemently argue and contend before us that the appellants are poor agriculturist and illiterate and the respondent/plaintiff taking undue advantage has inserted recitals indicating payment of Rs.5,00,000/- in cash and this material aspect is not dealt by the Trial Court. 4. Learned counsel for the appellants further coming to damages would vehemently argue and contend before this Court that the fact of acquisition was brought to the notice of respondent/plaintiff and same is clearly evident from the recitals in the agreement of sale vide Ex.P-1. 4. Learned counsel for the appellants further coming to damages would vehemently argue and contend before this Court that the fact of acquisition was brought to the notice of respondent/plaintiff and same is clearly evident from the recitals in the agreement of sale vide Ex.P-1. To buttress his argument on this aspect, he would take this Court to page 3 of the agreement and would submit to this Court that the appellants/defendants have clearly disclosed the fact of acquisition of portion of land by KIADB for formation of road. Relying on these recitals in Ex.P-1, learned counsel for the appellants/ defendants would submit to this Court that the suit land measuring 1 acre 24 guntas is very much available and the appellants/defendants are ready to perform their part of contract and this material aspect is totally ignored by the Trial Court. He would submit to this Court that this material aspect has a bearing on the decision and hence, would submit to this Court that the findings recorded by the Trial Court on issue Nos.1 and 2 suffers from perversity and needs interference by this Court. 5. Per contra, learned counsel for the respondent/plaintiff would refute the contentions raised by the appellants/defendants. Insofar as payment of cash, he would submit to this Court that the contention of the appellants/defendants that all are illiterate is factually incorrect and to rebut the said defence, learned counsel for the respondent/plaintiff would take this Court to Ex.P-1. Relying on Ex.P-1, learned counsel for the respondent/plaintiff would demonstrate to this Court that except appellant No.2 namely Srinivas, all other appellants have signed the agreement in English and this contention raised by the appellants/defendants at the stage of appeal has no substance and the same needs to be negatived. He would also vehemently argue and contend before this Court that appellants/defendants are not disputing the execution of agreement of sale vide Ex.P-1. They cannot be permitted to retract from the terms of the contract insofar as payment of cash of Rs.5,00,000/- is concerned. 6. Learned counsel for the respondent/plaintiff would further argue and contend before this Court that the findings recorded by the Trial Court on issue No.2 would not warrant any interference. To buttress his argument, he would take this Court to para 4 of the written statement. 6. Learned counsel for the respondent/plaintiff would further argue and contend before this Court that the findings recorded by the Trial Court on issue No.2 would not warrant any interference. To buttress his argument, he would take this Court to para 4 of the written statement. By relying on para 4 of the written statement, learned counsel for the respondent/plaintiff submits that the appellants/ defendants have disclosed in agreement of sale in regard to acquisition of 34 guntas of land, but in agreement of sale they have stated in unequivocal terms that remaining 1 acre 24 guntas which is the subject matter of agreement is available for transaction. On these set of facts, learned counsel for the respondent/plaintiff would read para 4 and contend before this Court that in fact appellants/defendants have suppressed the acquisition of 1 acre 24 guntas also and a new case is sought to be pleaded after filing of the suit that it is respondent/plaintiff who assured appellants/ defendants that he would approach the Government and see that the suit land is deleted from the acquisition proceedings. Relying on these pleadings, at para 4 of the written statement, learned counsel for the respondent/plaintiff would then take us to the relevant cross-examination of DW.1 who has admitted in unequivocal terms and has voluntarily stated in cross-examination that entire extent measuring 2 acres 20 guntas is acquired. Learned counsel for the respondent/plaintiff would submit that this admission in cross-examination would clinch the issue and the findings recorded by the Trial Court on issue No.2 is in accordance with law and would not warrant interference by this Court. 7. Having heard learned counsel for the appellants/defendants and learned counsel for the respondent/plaintiff and having meticulously examined the pleadings, oral and documentary evidence, the points that would arise for our consideration are as under: 1) Whether the finding of the Trial Court that respondent/plaintiff has established the payment of cash of Rs.5,00,000/- under Ex.P-1 is erroneous and warrants interference by this Court? 2) Whether the Trial Court was justified in holding that respondent/plaintiff is entitled for damages of Rs.5,00,000/-? Re: Point No.1: 8. The respondent/plaintiff has filed the present suit for recovery and has relied on Ex.P-1 which is agreement of sale executed by appellants/defendants for sale consideration of Rs.30,00,000/-. Under the said agreement, a sum of Rs.10,00,000/- is paid as advance. 2) Whether the Trial Court was justified in holding that respondent/plaintiff is entitled for damages of Rs.5,00,000/-? Re: Point No.1: 8. The respondent/plaintiff has filed the present suit for recovery and has relied on Ex.P-1 which is agreement of sale executed by appellants/defendants for sale consideration of Rs.30,00,000/-. Under the said agreement, a sum of Rs.10,00,000/- is paid as advance. Ex.P-1, which is the agreement of sale executed by the appellants/defendants clearly indicates that Rs.5,00,000/- was paid by way of cheque and remaining Rs.5,00,000/- was paid by way of cash. The payment by way of cash is being disputed by the appellants/defendants. However, what is to be taken note of is that the appellants/defendants have admitted due execution in para 4 of the written statement. We have also taken note of the fact that during trial, the appellants/defendants have admitted signatures on the suit agreement. If the due execution of suit agreement is admitted by appellants/defendants, we are of the view that the recitals in the agreement would not call for any further corroboration since its execution is admitted by the appellants/defendants. Though the suit agreement is not in dispute, the respondent/plaintiff has further examined PW.2 who happens to be the witness to the suit agreement vide Ex.P-1. He has stated in unequivocal terms in examination-in-chief that in his presence a sum of Rs.5,00,000/- was paid to the appellants/defendants . Nothing is elicited in the cross-examination to discredit PW.2. It is trite law that if the appellants/defendants are seriously disputing the contents of Ex.P-1, then in order to thwart real intendment and part of recitals in a document, much more categorical and acceptable material was required to be placed on record by the appellants/defendants. Mere bald assertion in the form of ocular evidence would not come to the aid of the appellants/defendants to dispute part of recitals in Ex.P-1. 9. Section 91 of Evidence Act forbids proving of the contents of writing otherwise than by writing itself and merely lays down best evidence rule. The appellants have failed to establish that Ex.P-1 is capable of being construed differently. The contention of the appellants/defendants that they are poor agriculturists and are illiterate is rightly refuted by the learned counsel appearing for the respondent/plaintiff who has taken us to the agreement vide Ex.P-1 and has demonstrated that except appellant No.2 namely Srinivas, all other appellants have signed in English. The contention of the appellants/defendants that they are poor agriculturists and are illiterate is rightly refuted by the learned counsel appearing for the respondent/plaintiff who has taken us to the agreement vide Ex.P-1 and has demonstrated that except appellant No.2 namely Srinivas, all other appellants have signed in English. Further, we are of the view that admission made by the appellants/defendants at para 4 of the written statement wherein a contention is taken that suit land was also acquired and the same was within the knowledge of respondent/plaintiff is also admissible under Section 58 of the Evidence Act and as such, admission and pleading stands on higher footing than the evidentiary admissions and same is fully binding on the appellants/defendants. 10. On careful examination of the entire evidence on record, we are of the view that the appellants/defendants are trying to take advantage and want to deny the payment made by the respondent/plaintiff by way of cash since it suits their purpose. In view of the said discussion, we hold that the evidence on record would clearly indicate and establish that the respondent/plaintiff has paid Rs.10,00,000/- to the appellants/defendants pursuant to agreement of sale executed by the appellants/defendants as per Ex.P-1. The conclusion arrived at by the Trial Court on issue No.1 is based on evidence on record and would not warrant any interference. Accordingly, we proceed to answer point No.1 in the negative. Re: Point No.2: 11. The respondent/plaintiff having accepted the offer made by the appellants/defendants agreed to purchase the suit land measuring 1 acre 24 guntas in Sy.No.27/2A and accordingly, the appellants/ defendants have executed agreement of sale on 02.01.2006 and have received an advance amount of Rs.10,00,000/- In the agreement of sale, as per Ex.P-1, the appellants/defendants have stated in unequivocal terms that a portion of land in Sy.No.27/2A was acquired for formation of a ring road and the remaining portion left out after acquisition measures 1 acre 24 guntas and the same is agreed to be sold under the agreement of sale executed by the appellants/defendants. The appellants/defendants have also stated in unequivocal terms that the schedule property measuring 1 acre 24 guntas is not subject to any attachment, acquisition, litigation or any other encumbrances. The appellants/defendants have also stated in unequivocal terms that the schedule property measuring 1 acre 24 guntas is not subject to any attachment, acquisition, litigation or any other encumbrances. The appellants/defendants have also stated in unequivocal terms that they are the absolute owners of schedule property and no one else have any semblance of right, title or interest or any share in the schedule property. They have also stated in the agreement of sale that they are intending to sell the suit property for family necessity. On bare reading of the recitals enumerated in the agreement of sale vide Ex.P-1, the appellants/defendants have given an impression to respondent/plaintiff that after acquisition, they still hold agricultural land measuring 1 acre 24 guntas and by giving such impression they have offered to sell the same for a sale consideration of Rs.30,00,000/-. When respondent/plaintiff smelt some mischief on the part of the appellants/defendants, has issued a legal notice. The appellants/defendants have chosen not to offer any reply. Probably this compelled the respondent/plaintiff to file a recovery suit and also damages as contemplated in the agreement of sale. The written statement filed by the appellants/defendants would clinch the entire controversy and would also throw light on the conduct and the intention of appellants/defendants in the present case on hand. In the written statement at para 4, the appellants/defendants have totally taken a U-turn and have come up with a new narrative to the effect that a sum of Rs.5,00,000/- was paid to respondent/plaintiff with an assurance that it is the respondent/plaintiff who would approach the Government to seek deletion of the suit land i.e., Sy.No.27/2A measuring 1 acre 24 guntas from acquisition. The appellants/defendants would further state in the same paragraph that in case respondent/plaintiff succeeds in getting the suit land dropped from acquisition, the appellants/defendants would either execute sale deed or they would make a payment of Rs.10,00,000/- to respondent/plaintiff and if respondent/plaintiff fails in not getting the suit land dropped from acquisition, then respondent/plaintiff would not be entitled for return of Rs.5,00,000/- which is paid to the appellants/defendants by way of cheque. 12. We have meticulously perused the averments made in para 4 of the written statement. The defence set up by the appellants/defendants runs contrary to the recitals stated in agreement of sale vide Ex.P-1. 12. We have meticulously perused the averments made in para 4 of the written statement. The defence set up by the appellants/defendants runs contrary to the recitals stated in agreement of sale vide Ex.P-1. In Ex.P-1, the appellants/defendants have clearly stated that 1 acre 24 guntas is retained by the appellants/defendants after acquisition by the Government. If the suit land which is agreed to be sold is retained by the appellants/defendants and was available to enter into a transaction with the respondent/plaintiff, then the entire theory set up in para 4 of the written statement is false story set up by the appellants/defendants with an intention to avoid the payment of Rs.10,00,000/- and also to get over the damage clause contemplated in the agreement of sale vide Ex.P-1. The appellants/defendants were quite aware that they had no land to enter into an agreement with the respondent/plaintiff. Absolutely no material is placed on record by the appellants/defendants to demonstrate that even after acquisition, they own land measuring 1 acre 24 guntas in Sy.No.27/2A. This clearly indicates that appellants/defendants consciously entered into transaction to make a wrongful gain by suppressing the fact of acquisition even in respect of suit land. Clause (viii) of the agreement of sale clearly indicates that whichever party commits default are liable to compensate by paying damages to the tune of Rs.5,00,000/-. DW.1 in his cross-examination has admitted in unequivocal terms that entire extent in Sy.No.27/2A was acquired by the Government. This categorical admission coupled with other clinching evidence on record would clearly establish that the appellants/defendants have offered to sell the land which is not in existence. The relevant portion of cross-examination of DW.1 is culled out as under: 13. On examining this portion of evidence of DW.1 in cross-examination, we are of the view that admission made by DW.1 is conclusive and is a decisive factor in the present case on hand. On examination of oral evidence lead in by the appellants/defendants, it is clearly forthcoming that the appellants/defendants have not at all made an attempt to withdraw the above said admission by offering an explanation nor an attempt is made to prove that the said admission is erroneous. In view of attempt made by DW.1, the appellants/defendants are estopped from contending that suit land is still available and contract is enforceable. In view of attempt made by DW.1, the appellants/defendants are estopped from contending that suit land is still available and contract is enforceable. We are of the view that attempt made by DW.1 is clear, unambiguous and relevant piece of evidence and the respondent/plaintiff apart from relying on recitals in agreement of sale vide Ex.P-1, has proved that there is a breach on part of the appellants/defendants in accordance with the provisions of Section 58 of Indian Evidence Act. 14. In the present case on hand, it is not only default or breach on the part of the appellants/defendants but, it is a case where right from inception, the intention of the appellants/defendants in entering into transaction with respondent/plaintiff were not bonafide and smacks malafides. We would not hesitate to hold that this transaction was entered into by the appellants/defendants to make wrongful gain. 15. In the light of the above said discussions, the point No.2 formulated is also answered in the negative. 16. The Trial Court has dealt with the matter meticulously and has accordingly, given cogent and detailed reasons for answering issue Nos.1 and 2 in the affirmative. The finding of fact recorded by the Trial Court is after assessing the pleadings, oral and documentary evidence. We have re-appreciated the entire oral and documentary evidence on record. Accordingly, we are of the view that the Trial Court while giving its judgment has not misdirected itself and we do not find any infirmities in the findings recorded by the Trial Court and also would not find any sufficient balance of improbabilities to displace the findings recorded by the Trial Court. The evidence adduced by the respondent/plaintiff and the conclusions arrived at by the Trial Court would justify the conclusion and we do not find any improbability in the case. 17. For the reasons stated supra, the appeal stands dismissed.