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2023 DIGILAW 54 (KAR)

B R Thopannaiah v. K V Krishna

2023-01-06

V.SRISHANANDA

body2023
JUDGMENT/ORDER 1. The present appeal is directed against the judgment and decree passed in O.S.No.9543/1997 on the file of XI Addl.City Civil Judge, Bengaluru, dated 27thday of July 2005, wherein, suit of the plaintiff filed for specific performance was decreed. 2. The parties are referred to as plaintiff and defendant for the sake of convenience, as per their original ranking before the Trial Court. 3. The brief facts which are necessary for disposal of the appeal are as under: Plaintiff filed the suit against the defendant with a prayer of specific performance and to direct the defendant to execute a registered sale deed in his favour conveying the suit schedule property by receiving the balance sale consideration of Rs.23,000.00 in pursuance of the agreement of sale dtd. 10/8/1994 and 14/6/1994 with costs. 4. Plaintiff has contended that defendant is the absolute owner in possession of the site No.101 demarcated in Survey No.50 of Saneguruvanahalli Village, Yeshwantpur Hobli, III stage, West of Chord Road, Bangalore, measuring: East to West - 30 feet and North to South - 40 feet allotted by the Gayathri Nagar House Building Co-operative Society Ltd., and bounded by East by - Site No. 102; West by - Site No. 100; North by -Site No.68 and South By - Road, (hereinafter referred to as 'suit property'). 5. According to plaintiff, defendant has to execute a registered sale deed in his favour conveying the suit property by receiving the balance sale consideration in a sum of Rs.23,000.00. 6. Plaintiff further contended that in order to meet the legal necessities and domestic commitments, defendant intends to sell the suit site to the plaintiff for a valuable consideration of Rs.68,000.00. According to the plaintiff, he has paid a sum of Rs.10,000.00 as advance sale consideration in the presence of witnesses on the date of agreement of sale i.e., 10/8/1994. One of the conditions incorporated in the said sale agreement is that an amount of Rs.5,000.00 out of the total sale consideration was agreed to be paid to the defendant by the plaintiff soon after expiry of the lease period of the suit property. Thereafter, plaintiff also paid further sum of Rs.10,000.00 on 14/6/1995, Rs.10,000.00 on 19/6/1995 and Rs.15,000.00 on 17/9/1995. Thus, total advance amount received by the defendant in respect of the sale agreement is sum of Rs.45,000.00 from the plaintiff. Thereafter, plaintiff also paid further sum of Rs.10,000.00 on 14/6/1995, Rs.10,000.00 on 19/6/1995 and Rs.15,000.00 on 17/9/1995. Thus, total advance amount received by the defendant in respect of the sale agreement is sum of Rs.45,000.00 from the plaintiff. Defendant inducted the plaintiff into the physical possession of the property as part performance of the contract. 7. Plaintiff further contended that even though substantial amount of the sale consideration has been paid as the advance amount, defendant did not get ready to execute the registered sale deed in his favour. He further contended that plaintiff was always ready to get the sale deed registered. But, defendant went on postponing the execution of the sale deed on one reason or the other, which necessitated the plaintiff to issue a legal notice on 18/1/1996. In the said legal notice plaintiff contended that he was always ready and willing to perform his portion of the contract by paying the remaining amount of Rs.23,000.00 towards the sale consideration and demanded for execution of sale deed. The notice was served on the defendant, but defendant sent an untenable reply on 2/3/1996 denying the very sale transaction. It is further contended by the plaintiff that in order to avoid the execution of the sale in favour of the plaintiff, defendant tried to alienate the schedule property to third parties which resulted in filing the suit by the plaintiff. 8. Upon receipt of the suit summons, defendant entered appearance and filed written statement denying the plaint averments in toto. However, defendant admitted that he is the absolute owner of the schedule property as the same was allotted to him by Gayathrinagar House Building Co-operative Society, Bengaluru and a sale deed came to be executed in his favour. Defendant denied other plaint averments, but admitted the receipt of legal notice and the same has been properly replied on 2/3/1996. Defendant denied the cause of action of the suit. It is further contended in the written statement that defendant is a poor agriculturist and he hailed from Bidanagere village, Kunigal Taluk. Defendant invested hard earned money and purchased the suit site for a valuable consideration and in the year 1994 he was in need of money for performing the marriage of his daughter and therefore he approached one Kantappa of Madikehalli, who is the relative of the defendant, seeking financial assistance. 9. Defendant invested hard earned money and purchased the suit site for a valuable consideration and in the year 1994 he was in need of money for performing the marriage of his daughter and therefore he approached one Kantappa of Madikehalli, who is the relative of the defendant, seeking financial assistance. 9. It is the specific case of the defendant that Kantappa took him to one Venkatappa, who had an office in Malleswaram. His relative Kantappa told the defendant to deliver the original documents pertaining to schedule property for enabling Venkatappa to obtain the financial assistance by depositing title deeds and accordingly defendant delivered all the documents to Kantappa. Thereafter, Kantappa directed the defendant to sign certain papers, accordingly, he signed certain blank papers on the pretext of obtaining the financial assistance by depositing of the title deeds. It is his case that Venkatappa paid a sum of Rs.45,000.00 on different dates, but did not secure the loan as agreed by him. However, defendant made his own arrangements and performed the marriage of his daughter Kumari Prema during the year 1997 and therefore, he has not executed any agreement with the plaintiff and plaintiff is a stranger to the defendant. He denied putting the plaintiff into the possession of the schedule property as part performance of the contract. He also contended that as on the date of agreement itself, the suit site was valued for Rs.5,00,000.00 and therefore, agreeing to sell the suit site for a sum of Rs.68,000.00 to the plaintiff by the defendant could not have been envisaged and therefore, sought for dismissal of the suit. 10. Based on the rival contentions, following issues have been raised by the Trial Court. 1. Whether the plaintiff proves that the defendant agreed to sell the suit property for a consideration of Rs.68,000.00 and executed an agreement of sale dt.10/8/94? 2. Whether the plaintiff proves that the defendant renewed the earlier agreement on 14- 6-95 ? 3. Whether the plaintiff proves that in all he has paid Rs.55,000.00 to the defendant towards sale consideration? 4. Whether the plaintiff proves that he has been ever ready and willing to perform his part of Contract? 5. Whether the plaintiff proves that he is entitled to the specific performance of the agreement of sale? 6. What decree or order?" 11. Whether the plaintiff proves that in all he has paid Rs.55,000.00 to the defendant towards sale consideration? 4. Whether the plaintiff proves that he has been ever ready and willing to perform his part of Contract? 5. Whether the plaintiff proves that he is entitled to the specific performance of the agreement of sale? 6. What decree or order?" 11. In order to prove the case of the plaintiff, plaintiff got examined himself as P.W.1 and one Venkatappa is examined as PW-2 and relied on nine documentary evidence which were exhibited and marked as Exs.P.1 to P.9, comprising of Ex.P.1-Sale Deed, Ex.P.2- Possession Certificate, Ex.P.3-No objections certificate, Ex.P.4-Agreement of sale, Ex.P.5-Renewed agreement of sale, Ex.P.6-Copy of legal notice, Ex.P.7-Reply notice, Ex.P.8 and 9 certified copy of Encumbrance Certificates. 12. On behalf of the defendant, defendant is examined as D.W.1 and one Srikantappa is examined as D.W.2. and on his behalf no documents are marked. 13. On conclusion of recording of evidence, the learned Trial Judge heard the parties in detail and decreed the suit of the plaintiff as under: "The suit is decreed with costs. The defendant is hereby directed to execute and register the sale deed in favour of the plaintiff in respect of the schedule property by receiving the balance sale consideration of Rs.23,000.00 within a period of six months from the date of this order, failing which the plaintiff is at liberty to deposit the balance sale consideration before the court and to get execute and register the sale deed in his favour through the process of court." 14. Being aggrieved by the same, the defendant preferred the present appeal on the following grounds: The impugned judgment and decree passed by the Court below is illegal, arbitrary and contrary to the material on record and hence the same is liable to be set aside. The learned Judge failed to notice that the Respondent has not produced any document to show that the Respondent was having a sum of Rs.10,000.00 with him on the date of execution of the agreement and endorsement. The learned Judge failed to notice that the stamp paper has been purchased 8 months earlier to the date of agreement i.e., on 24/1/1994. The learned judge failed to notice that the Respondent himself in his cross examination admits that he has signed the agreement without going through the contents of the second Agreement. The learned Judge failed to notice that the stamp paper has been purchased 8 months earlier to the date of agreement i.e., on 24/1/1994. The learned judge failed to notice that the Respondent himself in his cross examination admits that he has signed the agreement without going through the contents of the second Agreement. It is admitted by the Respondent that he does not know whether the Appellant had given those documents to Venkatappa since he was in need of loan amount. The Agreement dtd. 24/1/1994 is a created and fabricated document only to deceive and take unfair advantage of the situation and as such the reliance placed on the agreement dtd. 24/1/94 is not true and correct in as much as perverse. The learned Judge ought to have noticed the fact that Respondent did not transact with the Appellant but he entered into transaction through Real Estate persons. There is negligence on the part of the Respondent in not verifying as to the purpose for which the title deeds were pledged by the Appellant and failed to know that the actual party / Agreement did not intend to create an agreement to sell in favour of the Respondent or anybody who so ever. The court failed to notice that the respondent has clearly admitted that the Appellant has not approached him personally in his residence at any point of time offering to sell the schedule property. Hence the impugned judgment is liable to be set aside. The court further failed to notice that the transaction between the Appellant and the Respondent is purely a loan transaction and is not a document of sale as could be gathered from the cross-examination of the Respondent. The Court below failed to notice that the Appellant has signed the documents where 'x' mark is made on the blank stamp paper and such being the case, the court below ought to have dismissed the suit. The court below further erred in passing the judgment and decree though it is elicited in the cross-examination the intention of the Appellant in clearing the amount and further it is elicited in the cross- examination that the Appellant has signed wherever 'x' mark is made on the blank stamp paper which clearly shows that as on the date of the agreement there was no writing and only a blank paper was signed by the Appellant. The Court below further failed to notice that the Appellant is an illiterate person coming from a poor agricultural family and signature of the Appellant was taken on blank stamp papers taking advantage of the situation that the Appellant was intending to perform his daughter's marriage and as such, the impugned judgment and decree are liable to be set aside. Viewed from any angle the impugned judgment and decree are otherwise opposed to law, facts and probabilities of the case." 15. Reiterating the grounds urged in the appeal memorandum, learned counsel for the appellant Sri Pradeep, representing Sri Shanmukhappa, vehemently contended that the learned Trial Judge has failed to note that the material evidence on record was hardly sufficient to hold that agreement stands proved and therefore, sought for allowing the appeal. 16. He further contended that the plaintiff has failed to establish that he was always ready and willing to perform his portion of the contract and sought for allowing the appeal. 17. He also pointed out that the question of hardship is not taken into consideration by the learned Trial Judge as the defendant does not possess any other site and as on the date of agreement, the site was valued for a sum of Rs.5,00,000.00 and sought for allowing the appeal. 18. Per contra, learned counsel representing the respondent/plaintiff Sri Prakash T. Hebbar has vehemently contended that the plaintiff having proved all the necessary ingredients to get the decree of specific performance of contract of sale, the learned Trial Judge rightly decreed the suit of the plaintiff and sought for dismissal of the appeal. 19. He also pointed out that major portion of the sale consideration in a sum of Rs.45,000.00 having been paid and admitted by the defendant in the written statement and defendant having failed to establish that the suit transaction is a loan transaction, the learned Trial Judge was justified in decreeing the suit of the plaintiff. 19. He also pointed out that major portion of the sale consideration in a sum of Rs.45,000.00 having been paid and admitted by the defendant in the written statement and defendant having failed to establish that the suit transaction is a loan transaction, the learned Trial Judge was justified in decreeing the suit of the plaintiff. He also pointed out that the signature on the sale agreement is not in dispute and the contention taken by the defendant is that one Kantappa took him to Venkatappa and got a financial assistance in a sum of Rs.45,000.00 by depositing the title deeds in respect of the schedule property and defendant having been failed to establish the said defence, the decreeing of the suit by the Trial Court is just and proper and sought for dismissal of the appeal. 20. In support of his arguments, counsel for respondent relied on the judgment in the case of Nirmala Anand Vs. Advent Corporation (P) Ltd., and others reported in (2002) 5 SCC 481 . 21. In view of the rival contentions of the parties, following points would arise for consideration: 1) Whether the plaintiff has successfully established that the defendant voluntarily entered into an agreement of sale dtd. 10/8/1994 and received a sum of Rs.45,000.00 as advance and plaintiff was always ready and willing to perform his portion of the contract? 2) Whether the defendant has established that the suit transaction is one of monitory transaction and there was no intention on the part of the defendant to sell the schedule property in favour of the plaintiff? 3) Whether decreeing of the suit would result in hardship to the plaintiff? 4) What order? 22. In the case on hand, the oral and documentary evidence are as under: P.W.1 is the plaintiff who has filed an affidavit in lieu of his examination in chief. In the said affidavit, he has reiterated the contents of the plaint in verbatim and relied on the nine documentary evidence which are Exs.P.1 to P.9, comprising of sale deed, possession certificate, No Objection Certificate, Agreement of Sale, Renewed Agreement of Sale, Copy of Legal Notice, Reply notice, C.C of Encumbrance Certificates. 23. In the cross-examination of P.W.1 made on behalf of defendant, it is elicited that the plaintiff is not aware of the residence of defendant. 23. In the cross-examination of P.W.1 made on behalf of defendant, it is elicited that the plaintiff is not aware of the residence of defendant. He admits that Venkatappa and Munirathnam Naidu introduced defendant to him in the office of the real estate agent. He admits that Venkatappa and Munirathnam Naidu are running the real estate agency. He admits that his father's name is also Venkatappa and he used to visit the office of the real estate agent frequently as he was in search of a site. He has answered that the sale agreement has taken place on 10/8/1994 at about 11.00 a.m., on or before 12.00 noon and the defendant was present with yet another unknown person. He has answered that defendant disclose before Venkatappa stating that he is ready to sell the suit schedule property for a sum of Rs.68,000.00 and the plaintiff agreed to purchase the same and on the same day sum of Rs.10,000.00 was paid as advance amount. He has answered that there is a receipt for having paid Rs.10,000.00 and agreement came to be executed. He also admits that agreement was executed in the morning session and the advance amount paid in the evening hours on 10/8/1994. He has answered that it is Venkatappa who purchased the stamp paper and Munirathnam Naidu is the scribe of the agreement. He has also answered that Venkatappa and Munirathnam Naidu possessed stamp papers in their office and after confronting Ex.P.4, witness answered that the said document is typed in Kannada language. He admits that on stamp paper, agreement of sale is typed on 24/1/1994. He admits that he was not acquainted with defendant on 24/1/1994. He admits that second agreement as per Ex.P.5 came to be executed by the defendant when he paid additional advance amount of Rs.10,000.00. He admits that he knows document to show that he had paid sum of Rs.10,000.00 as on the date of Ex.P.4 and another sum of Rs.20,000.00 as on the date of Ex.P.5. He also admits that he has paid further sum of Rs.15,000.00 in the month of September 1995. He admits that he is not aware of the person who purchased the stamp paper for executing Ex.P.5, but the same was prepared in the office of Venkatappa. He also admits that he has paid further sum of Rs.15,000.00 in the month of September 1995. He admits that he is not aware of the person who purchased the stamp paper for executing Ex.P.5, but the same was prepared in the office of Venkatappa. He has answered that Exs.P.1 to P.3 which are title deeds of suit schedule property are handed over to him in the office of Venkatapa when he paid further amount of Rs.15,000.00. He denied the knowledge of defendant handing over Exs.P.1 to P.3 earlier to September 1995 to Venkatappa. He denied the suggestion that Exs.P.1 to P.3 was handed over to Venkatappa for the purpose of security for the loan, Venkatappa has lent to the defendant. He denied the suggestion that as on the date of Ex.P.4, the suit property was having the value of Rs.5,00,000.00 and as on the date of cross-examination, the value of the suit property is about Rs.12,00,000.00. He admits that he has not enquired the value of the suit property as on the date of cross- examination. He admits that defendant has subscribed his signature in the sale agreement in front of A. Venkatappa and K. Munirathnam Naidu. 24. He further admits that he has not signed in respect of two endorsements to show that he was present when those endorsements were made in the suit agreement. He admits that he has given instructions to his Advocate to issue notice as per Ex.P.6 and he has no knowledge that reply has been sent to Ex.P.6. He admits that he is not aware of the contents of Ex.P.7. He denies the suggestion that in Ex.P.7, defendant has specifically replied that he had no intention to sell the suit property. He has answered that defendant never approached him personally in his house. He denies the suggestion that as on the date of cross-examination, the suit property is a vacant site. Per contra, he has answered that he has put up a small shed in the suit property. He denies the suggestion that Venkatappa, Munirathnam Naidu and Srikantappa have colluded and created sale agreement. 25. Venkatappa, who is the father of the plaintiff is examined as witness on behalf of the plaintiff as P.W.2. He has filed an affidavit in lieu of his examination in chief stating that he is aware of the parties to the suit and plaintiff is his son. 25. Venkatappa, who is the father of the plaintiff is examined as witness on behalf of the plaintiff as P.W.2. He has filed an affidavit in lieu of his examination in chief stating that he is aware of the parties to the suit and plaintiff is his son. He has answered that defendant was a member of Gayathrinagar House Building Co- operative Society, situated at Manjunatha Nagar and suit property was allotted to him. He has specifically stated that after allotment of the said site, defendant approached buyer for the site as he intended to sell the suit property for meeting his legal necessities. Further answered that since the plaintiff was in need of a house in and around Manjunatha Nagar, he helped him in purchasing the suit property. He has identified the agreement dtd. 10/8/1994 and 14/6/1995 and he has signed those documents as witness. 26. In his cross-examination on behalf of the defendant, it is elicited that defendant is his relative and he is residing at Bidanagere village, Kunigal Taluk and he is an agriculturist. He has answered that during the year 1994, defendant approached him with a request to assist him for sale of his site. He has answered that he did not perform the marriages performed in the family of defendant. He has answered that since he is doing real estate agency business, defendant approached him for sale of his property. He denies the suggestion that defendant had approached him for financial assistance to perform his daughters marriage and in that regard, he had obtained title deeds marked at Exs.P.1 to P3 from the custody of the defendant. He has answered that he has no documents to show that he is doing real estate agency business and he was working in paid services and defendant approached him along with Srikantaiah. He has pleaded ignorance about the educational qualification of the defendant. He has answered that one of the suit agreements is typed on stamp paper on 10/8/1994 and another one on June 1995. He has answered that he could have taken active part in getting both the agreements prepared on the same day. He denied that both the agreements were taken for the purpose of security. He admits that he has been examined on behalf of the plaintiff and he has not received any suit summons. He has answered that he could have taken active part in getting both the agreements prepared on the same day. He denied that both the agreements were taken for the purpose of security. He admits that he has been examined on behalf of the plaintiff and he has not received any suit summons. He denied the suggestion that in order to help the plaintiff, he is deposing falsely. 27. Defendant has examined himself as D.W.1 by filing his affidavit in lieu of his examination in chief. In the said affidavit he has reiterated the contents of written statement in verbatim. He also relied on the documents as referred to supra which are marked as Ex.P.1 comprising of Sale Deed. 28. In his cross-examination he has answered that he has got three sons and a daughter and one of the sons is working in a private factory and other two sons are engaged in agriculture. He has answered that he is having 1.1 acres of agricultural land and he is looking after the agriculture land. He has answered that he was allotted a site in Gayathri Nagar House Building Co-operative Society, Bengaluru. He admits that in and around the suit site that has been allotted to him, there exists a slum area, wherein huts have been constructed. 29. He has answered that the site that has been allotted to him is situated somewhat on downward place. (perhaps down gradient). He has answered that he had no knowledge of father's name of the plaintiff is Venkatappa. He has pleaded ignorance about the fact that Venkatappa was also a member of Gayatri Nagar House Building Co- operative Society. He admits his signature on Exs.P.4 and P.5 were marked as Ex.P.4 (a) and P.5 (a). He has answered that he has subscribed his signatures at Malleswaram, Bengaluru. He has answered that he does not know the scribe of Exs.P.4 and P.5. He specifically answered that he approached Srikantappa for advancement of the loan to the tune of Rs.45,000.00 to meet the marriage expenses of his daughter, Srikantappa took him to office of Venkatappa in the guise of availing the loan and took title deeds of his property and got paid Rs.45,000.00 as loan. He has specifically answered that documents were kept as security for the loan. He has specifically answered that documents were kept as security for the loan. He has answered that he is acquainted with Srikantappa for 20 to 25 years and he is a distant relative. He pleaded ignorance about the signatures on Exs.P.4 and P.5. He has answered that at the time of execution of Exs.P.4 and P.5, Venkatappa and Srikantappa were present. He admits that till the date of cross-examination, he has not repaid the loan amount nor he corresponded with the plaintiff in regard to the repayment of the loan. He admits that there is no notice issued seeking refund of the loan. He has answered that his signatures are obtained on two stamp papers on two or three places and on a plain paper. He denies the suggestion that plaintiff himself took active part in securing the original documents pertaining to suit property. He admits that he has not paid the taxes to suit property after its purchase. He has answered that he has visited the Housing Society as per the instructions of one Javarappa even after the registration of the sale deed in his favour in respect of the suit property. He denied that Exs.P.4 and P.5 are the sale agreements and he has received sum of Rs.45,000.00 as advance amount of total sale consideration in a sum of Rs.68,000.00. 30. Srikantappa is examined as D.W.2. He filed his affidavit wherein he has stated that he is distant relative of defendant. He has specifically stated that in the year 1994 defendant intended to perform the marriage of his daughter and therefore, he approached him for financial help. Since he was not in a position to help him financially, he took him to Venkatappa having office at Malleswaram. He has further answered that in the month of August 1994, he took defendant to the office of Venkatappa and requested him for financial help. He further stated that Venkatappa assured financial assistance in a sum of Rs.45,000.00 and he wanted a collateral security and therefore, Exs.P.1 to P.3 were handed over to Venkatappa by defendant. He has further answered that Venkatappa was made to sign on blank paper representing that they are loan document. Venkatappa also directed him to sign as a witness to the loan transaction and therefore, he signed the document. He specifically stated that there is no transaction by the plaintiff with the defendant. 31. He has further answered that Venkatappa was made to sign on blank paper representing that they are loan document. Venkatappa also directed him to sign as a witness to the loan transaction and therefore, he signed the document. He specifically stated that there is no transaction by the plaintiff with the defendant. 31. In his cross-examination, he admits that plaintiff has a father by name Venkatappa and he is acquainted with Venkatappa and he is also his relative. He has answered that during the year 1994 defendant approached him for financial assistance to the extent of Rs.50,000.00 for performing the marriage of his daughter. Since he had no money, he took him to the office of Venkatappa. He has answered that he is not aware as to where Exs.P.4 and P5 have been prepared. He has further answered that father of plaintiff paid Rs.15,000.00 to the defendant when they approached for the second time. He also stated that father of plaintiff taken signature on blank papers by paying sum of Rs.15,000.00 stating that he would prepare the papers later. He has answered that plaintiff has received three payments from the father of plaintiff. He has further answered that he does not know how many agreements have been executed as the same were not prepared in his presence. He has further answered that defendant and himself have signed the documents when defendant received the amount. 32. He further admits that he is not in the habit of subscribing the signature on the blank paper. He also admits that he has not made any enquiry with the father of the plaintiff as to why he has taken signature on the blank paper. 33. On the strength of the aforesaid evidence on record, learned counsel for the appellant vehemently contended that the Trial Court failed to exercise its discretion as vested under Sec. 20 of the Specific Relief Act and has directed for specific performance of the agreement to sell dtd. 10/8/1994 vide Ex.P.4 resulting in miscarriage of justice. 34. In the case on hand, it is the specific case of the appellant that he only wanted financial assistance and for obtaining the same, he contacted D.W.2 - Srikantaiah. Srikantaiah took him to the father of the plaintiff - Venkatappa. 10/8/1994 vide Ex.P.4 resulting in miscarriage of justice. 34. In the case on hand, it is the specific case of the appellant that he only wanted financial assistance and for obtaining the same, he contacted D.W.2 - Srikantaiah. Srikantaiah took him to the father of the plaintiff - Venkatappa. The material evidence on record as discussed supra clearly indicate that Venkatappa lent money by keeping the title deeds of the suit property marked at Exs.P.1 to P.3 as a security. 35. It is pertinent to note that P.W.2 was not examined on behalf of the plaintiff at the first instance. It is only after D.W.2 was cross-examined by the plaintiff in part, Interlocutory application IX and X came to be filed by the plaintiff which were allowed on 30/6/2004 and further evidence on behalf of plaintiff was adduced. It is also pertinent to note that on 17/12/2003, D.W.2 was partially cross-examined and by order dtd. 7/1/2004, D.W.2 was discharged and defendant side evidence was closed noting that plaintiff was not diligent in cross-examining D.W.2 further. 36. In other words, the oral evidence of D.W.2 remained not challenged properly. As seen supra, D.W.2 specifically stated that defendant wanted financial assistance and therefore, he took defendant to P.W.2 who was running an real estate agency. It is pertinent to note that P.W.2 is none other than the father of plaintiff. D.W.2 is also a signatory to Exs.P.4 and P.5. There are material alterations in Ex.P.5 which is not even signed or initialed by the parties to the agreement. When Srikantaiah has specifically stated that the transaction is that of loan transaction, nothing prevented the plaintiff to examine yet another witness namely; Krishna and K. Munirathnam to Exs.P.4 and P.5 respectively to prove the documents. More so, in the reply notice there is a specific stand taken by the defendant that the suit agreement is concocted and transaction is that of a loan transaction. 37. In the cross-examination of P.W.2, it is suggested that Srikantaiah took defendant to him for financial assistance. But the same is denied by P.W.2. It is admitted by him that he has no document to show that he was working as a real estate agent. It is further admitted by him that he worked in fire service and defendant approached him through D.W.2. But the same is denied by P.W.2. It is admitted by him that he has no document to show that he was working as a real estate agent. It is further admitted by him that he worked in fire service and defendant approached him through D.W.2. He has answered that defendant has met him three to four times and he has taken signature of defendant whenever he met him. He admits that he was not aware of the qualification of the defendant. The stamp paper for the suit agreements are purchased in the name of the defendant and P.W.2 has answered that he does not know whether defendant purchased the stamp paper. He has further answered that on 10/8/1994 one agreement is prepared and second agreement was prepared in the month of June 1995. He admits that he has taken active part in getting both the documents prepared. He admits that he has not received any witness summons from the Court, but at the request of counsel for the plaintiff he has adduced his evidence. 38. Admittedly, the suit property is situated at 4 to 6 kilometers away from the City. Sale consideration is only Rs.68,000.00. Admittedly, the property is worth several lakhs even on the date of the Ex.P.4. 39. The advance consideration amount in a sum of Rs.45,000.00 is admitted by the defendant. But, he has contended that it is a loan amount. Whereas, it is the specific case of the plaintiff that the agreements are executed for the purpose of sale of the property. There is clear alteration in the endorsement in Ex.P.5, wherein sum of Rs.40,000.00 is altered as 45,000/- by inserting 'five' in words in Kannada language through a pen. The same is not signed or initialed by the parties. The material alterations found on endorsement at Ex.P.5 and at the first page of Ex.P.5 is not explained by the plaintiff nor learned Trial Judge bestowed his attention in respect of the same. 40. It is settled principles of law and requires no emphasis that if any agreement which is the basis for granting specific performance, suffers from material defects, such agreements cannot be legally enforced. 41. 40. It is settled principles of law and requires no emphasis that if any agreement which is the basis for granting specific performance, suffers from material defects, such agreements cannot be legally enforced. 41. In the case on hand, as already noticed, since D.W.2 was not cross-examined in full and has not been discharged and no efforts are having been made on behalf of the plaintiff to recall D.W.2 for further cross- examination and on the contrary examining the father of the plaintiff as P.W.2 is an after thought only to plug the loophole in the case of the plaintiff. The said conduct on the part of the plaintiff exposes the hollowness in the claim of the plaintiff. It is in such circumstances, the discretion vested in the Court under Sec. 20 of the Specific Relief Act would come into picture. 42. This Court being the Court of First Appeal, is entitled to revisit the facts and circumstances of the case on hand and also apply proper legal principles in appreciating the case of the parties in its proper perspective. 43. When such an exercise is carried out in the case on hand, by re-appreciating material on record, the plaintiff has not properly proved that Exs.P.4 and P.5 have been executed by defendant with an intention to sell the suit property in his favour voluntarily. On the contrary, there are enough material on record as discussed supra, which would throw sufficient doubt as to the genuineness of the execution of suit agreements marked at Exs.P.4 and P.5. D.W.2 having specifically stated that he took defendant to P.W.2 only for obtaining financial assistance and P.W.2 collected Exs.P.1 to P.3 from the custody of defendant for advancing the loan and kept the same as a security for the loan amount is more probable in the case on hand. 44. Accordingly, this court is of the considered opinion that the appellant has made out a case for interfering with the findings recorded by learned Trial Judge in holding that plaintiff has proved the suit agreements and is entitled for specific enforcement of suit agreements. 45. From the above discussion, this Court is of the considered opinion that plaintiff has failed to establish genuineness of suit agreements and material evidence on record indicate that the suit transaction is only a loan transaction. Defendant was made to sign on Exs.P.4 and P.5. 45. From the above discussion, this Court is of the considered opinion that plaintiff has failed to establish genuineness of suit agreements and material evidence on record indicate that the suit transaction is only a loan transaction. Defendant was made to sign on Exs.P.4 and P.5. Admittedly, P.W.2 being the father of the plaintiff played active role in getting the signature of D.W.1 on Exs.P.4 and P.5 who is a gullible person. 46. Accordingly, appellant has made out a case to allow the appeal. Having said thus, defendant has admitted that he has received sum of Rs.45,000.00 from plaintiff as is evidenced in Exs.P.4 and P.5 . Accordingly, he required to refund the same to the plaintiff with interest at 12% per annum. Hence, point Nos.1 and 3 in the Negative, point No.2 in the Affirmative. 47. Point No.4 : In view of findings on point Nos.1 to 3, this Court proceeds to pass the following: ORDER Appeal is allowed. The Judgment and decree passed in O.S.No.9543/1997 granting specific enforcement of suit agreement dtd. 10/8/1994 is hereby set aside. Appellant is directed to return the sum of Rs.45,000.00 with interest at 12% per annum from the date of agreement. No order as to costs.