THE COMMISSIONER OF INCOME - TAX vs. M/S BOSCH LTD.,

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23rd DAY OF OCTOBER, 2020 PRESENT THE HON’BLE MR. JUSTICE B. VEERAPPA AND THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR FIRST APPEAL No.649 of 2013

BETWEEN

…APPELLANTS

(BY MISS VIDYASHREE, ADVOCATE FOR SRI S.R. SUNDAR RAM, ADVOCATE)

2 AND

RESPONDENT Nos.1 AND 2 ARE RESIDING AT R.K. INDUSTRIES, No.327, AVARAGERE, DAVANGERE – 577 001.

3 6. R.K. VIDYAKALA, D/O. H. RUDRAPPA, AGED ABOUT 34 YEARS,

RESPONDENT Nos.5 TO 7 ARE RESIDING AT 387/95, 2ND MAIN, 5TH CROSS, GANESH LAYOUT, DAVANGERE – 577 001.

…RESPONDENTS

(BY SRI M. VINAYA KEERTHY, ADV., FOR R.1 to 7)

THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 29.01.2013 PASSED IN O.S.No.24/2010 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM, DAVANAGERE, DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE.

THIS REGULAR FIRST APPEAL COMING ON FOR HEARING THIS DAY, B. VEERAPPA J., DELIVERED THE FOLLOWING:

JUDGMENT

The plaintiffs have filed the present regular first appeal against the impugned judgment and decree dated 29.01.2013 dismissing the suit of the plaintiffs for specific performance to enforce the agreement dated 06.02.2009 said to have been executed by the defendants.

5 after four months from the date of the agreement after the receipt of the balance sale consideration. It is further contended that the defendants though agreed to get the land surveyed, fix the boundaries and execute the registered sale deed in favour of plaintiff No.2 within four months after the date of agreement, they have not followed the terms and conditions of the agreement. Hence, plaintiff No.2 got issued legal notice to the defendants through his General Power of Attorney holder – plaintiff No.1. The defendants have filed untenable reply. Therefore, the plaintiffs filed a suit for specific performance.

6 agreement of sale is false, concocted and created for the purpose of filing the suit against them. He further contended that the plaintiffs were insisting the defendants to sell the property since they had no proper access to the road. As the defendants did not agree to sell, the plaintiffs have got created the alleged agreement of sale and the alleged sale agreement is not a registered one. Therefore, the suit is not maintainable and the relief sought for by the plaintiffs is not also maintainable. Hence, sought to dismiss to suit.

i) Whether the plaintiffs prove that the defendants entered into the sale agreement dated 06.02.2009 by agreeing to sell the 3.00 acres of land towards the western portion of Re.Sy.No.258 measuring 3 acres 4 guntas and Re.Sy.No.259 measuring 2 acres 29 guntas for a sum of Rs.20 lakhs per acre and received the advance sale consideration of Rs.35 lakhs by agreeing to receive the balance sale

7 consideration amount while executing the registered sale deed?

ii) Whether the plaintiffs prove that the defendants agreed to execute registered sale deed within four months?

iii) Whether the plaintiffs prove that they were always ready and willing to perform their part of contract?

iv) Whether the defendants prove that the alleged agreement of sale dated 06.02.2009 is false, concocted and created to snatch their highly valuable alienated suit schedule property?

v) Whether the plaintiff No.2 is entitled for the relief of specific performance of contract?

vi) Whether the plaintiff No.2 is entitled for the reliefs sought for?

vii) What order and decree?”

9 8. Miss Vidhyashree, learned counsel for the appellants contended with vehemence that the Trial Court erred in dismissing the suit of the plaintiffs only on the basis of the oral and documentary evidence, which cannot be sustained and is liable to be set aside. She further contended that the Trial Court erred in holding that Ex.P.1–sale agreement is not executed by the defendants while the defendants have received an advance amount of Rs.35.00 lakhs on the date of the agreement dated 06.02.2009. Mere denial of the execution of the sale agreement by the defendants and the signature is not a ground to dismiss the suit. She would further contend that the Trial Court ought to have verified the admitted signatures in the written statement as well as the signatures in the vakalat with the disputed signatures in the agreement–Ex.P1 under the provisions of Section 73 of the Indian Evidence Act (for short I.E. Act). The same has not been done by the Trial Court. Therefore, on that ground alone the impugned judgment and decree of the Trial Court is liable to be set aside.

10 9. The learned counsel further contended that plaintiff No.2 is an agreement holder. As he was a businessman, he executed a Power of Attorney in favour of plaintiff No.1, who is a witness to the sale agreement. Hence, there is no bar that both the plaintiffs can file a suit. She would further contend that the plaintiffs were always ready and willing to perform their part of the contract. When the defendants did not comply with the terms and conditions of the sale agreement, the legal notice came to be issued on 28.01.2010 and the suit is filed within three years from the date of agreement. Therefore, the learned Judge ought to have decreed the suit. She further contend that the impugned judgment and decree passed by the Trial Court dismissing the suit of the plaintiffs based on the assumption and presumption cannot be sustained. Therefore, she sought to allow the appeal.

11 the very execution of the sale agreement dated 06.02.2009 is totally denied by the defendants including the signatures. That the plaintiffs have concocted and created the agreement and the defendants have not received any advance amount as alleged. Admittedly, the plaintiffs have not produced any material document to prove that the plaintiffs have paid the advance amount of Rs.35.00 lakhs to the defendants and in the absence of the same, the Trial Court has rightly dismissed the suit of the plaintiffs. Therefore, he sought for dismissal of the appeal.

12 and carefully perused the entire material placed including the original records carefully.

13 06.02.2009, the time stipulated to get the land surveyed, fixing the boundaries and execution of the registered sale deed in favour of plaintiff No.2 was four months after the agreement. But, very strangely, the legal notice–Ex.P2 came to be issued by plaintiff No.2 through his Power of Attorney Holder-plaintiff No.1 to the defendants. It is also not in dispute that the sale agreement came to be executed on 06.02.2009, the legal notice – Ex.P2 came to be issued on 28.02.2010 after the lapse of four months and the suit was filed on 19.02.2010.

14 Parameshwari Bank and he has not produced any documents including the Passbook of the Bank from which he withdrew Rs.35.00 lakhs and paid to the defendants. He also admitted that the advance amount paid to the defendants is shown in the Income Tax records, but in fact, no document has been produced before the Court to prove the same. He has further admitted that under the agreement it is stated that the sale deed should be executed ‘within four months’, whereas in the legal notice, it is mentioned as ‘after four months’. Plaintiff No.1- S.R.Suresh has also stated that on the date of the agreement, plaintiff No.2- PW-3 B.S.Basavaraj has stated on Oath that at the time of agreement, totally 11 members were present and admittedly, except plaintiff No.1 i.e PW.2, others have not been examined. Plaintiff No.1- S.R.Suresh who has been examined as PW.3 has also not stated how the advance amount was paid to the defendants.

15 15. It is also not in dispute that the sale agreement dated 06.02.2009 is not a registered document alleged to have been executed by the defendants. But the defendants have totally denied the execution of the alleged agreement as also receipt of the advance amount and the signatures made therein. According to the plaintiffs, the value of the land is more than Rs.60.00 lakhs for 03 acres and Rs.35.00 lakhs was paid as advance sale consideration. If the immovable property values more than Rs.100/-, the document has to be registered. If a huge amount of Rs.35.00 lakhs is paid as advance sale consideration, what was prevented the plaintiffs to get the document registered and the receipt for having paid the amount is also not forthcoming. The plaintiff No.2 being an income tax assessee was not prevented from entering in his returns about payment of advance amount. Therefore, the execution of the sale agreement is doubtful.

16 the cross-examination of DW.1, he has admitted that he is the owner of the property in question and all the documents stood in his name. He has specifically denied that the signatures made in the vakalat and Ex.P.1 are one and the same. He has specifically stated that the plaintiffs are not known to him. He further contended that he has not given any document to the plaintiffs and specifically stated in the cross-examination that he has not executed the agreement as alleged and the said agreement is a created document to knock off the property of the defendants. Once the defendants have denied the very execution of the agreement, the receipt of money and the signatures, it is the duty of the plaintiffs to prove that Ex.P.1-agreement in the procedure known to law. Admittedly, in the present case, plaintiffs have not taken any steps to prove the disputed and the admitted signatures during the trial. Though the learned counsel for the appellants contended that the Court can also compare the admitted signatures with the disputed signatures even

17 though no application was filed by the appellants/plaintiffs before this Court or before the Trial Court.

18 Nos.1 and 2 created Ex.P.1- agreement as recorded by the Trial Court.

19 of the defendants. This also makes it hard to believe the case of the plaintiffs. It was pointed out that Ex.P.1- agreement prepared on a stamp paper purchased on 05.02.2009. It is the specific case of the plaintiffs that earlier to 06.02.2009, there were no sale talks with the defendants then how the stamp papers were purchased earlier to the talks is another circumstance the Trial Court disbelieved. Though according to the plaintiffs, the defendants have agreed to execute the sale deed ‘within four months’, whereas in the complaint, it is pleaded that it is ‘after four months’ and the notice also stated that it is ‘after four months’. Therefore there is inconsistency in stating the period as in the agreement, it is mentioned as ‘within four months’ but in the notice as well as in the complaint, it is stated as ‘after four months’. Therefore, the plaintiffs have not approached the Court with clean hands and hence, they are not entitled for the relief of specific performance of the contract.

20 19. It is the specific case of the plaintiffs that the defendants have executed the agreement of sale in their favour. When the defendants have denied the very execution of the agreement, receipt of the sale advance amount and the signatures, it is the burden on the plaintiffs to prove the same and in the absence of proof, the suit filed by the plaintiffs has been rightly dismissed by the Trial Court. Our view is fortified by the dictum of the Hon’ble Apex Court in the case of Thiruvengada Pillai vs. Navaneethamal reported in AIR 2008 SC 1541, wherein it has been held at paragraph 17 as under: “ The trial Court had analyzed the evidence properly and had dismissed the suit giving cogent reasons. The first appellate Court reversed it by wrongly placing onus on the defendants. Its observation that when the execution of an unregistered documents put forth by the plaintiff was denied by the defendants, it was for the defendants to establish that the document was forged or concocted, is not sound proposition. The first appellate Court proceeded on the basis that it is for the party who asserts something to prove that thing; and as the defendants alleged that the

21 agreement was forged, it was for them to prove it. But the first appellate Court lost sight of the fact that the party who propounds the document will have to prove it. In this case the plaintiffs came to Court alleged that the first defendant had executed an agreement of sale in favour. The first defendant having denied it, the burden was on the plaintiff to prove that the first defendant had executed the agreement and not on the first defendant to prove the negative”.

”6. It is one of the well settled principles of law of evidence that a person who comes to claim relief before the Court with a specific case, he has to rest and stand on his own legs and not on the weakness of defendants' case. Even if the defendants had not led any evidence, burden did lie on the plaintiff to prove the transaction of loan and the alleged agreement to pay 13% interest as well as failure of the defendants to repay that amount or repayment of debt amount. Plaintiff has also to prove that the

22 claim suit filed by him is within limitation. In the present case, on the merits of the case, the Court has found that the transaction of loan has been proved as per the unchallenged testimony of P.W.1 coupled with documentary evidence contained in Exs.P.1 to P.3 and P.11 which establishes that the defendants are liable to pay the sums as claimed in the plaint. As regards the plea of limitation, prima facie the transaction of loan had taken place on 27-12-1978. The suit had been filed on 19-12-1991. Limitation for filing the suit for recovery of money based on pronote is three years from the date of pronote vide Article 35 of the Schedule to the Limitation Act, 1963. Suit in the present case, as mentioned earlier, prima facie is barred by time unless it is found that the plaintiff has established necessary ingredients of Section 18 or 19 of the Limitation Act in which cases limitation could be said to have been started from the date of acknowledgment. Exs.P.5 to P.10 have been relied upon by the plaintiff as well as by the Court below as letters of acknowledgment of debt. The defendant has denied execution of those documents in his pleadings. Therefore, burden did lie on the plaintiff to establish the execution of those documents Exs.P.5 to P.10. P.W.1 - the Manager has been examined to prove it. P.W.1 has stated that he had been working in the concerned Branch of Allahabad Bank with effect from February

23 25, 1995. It is one of the well settled principles of law that documents have to be proved by primary evidence i.e., if the execution of a document has to be proved, it has to be proved by the witness or by the person in whose presence the transaction did take place and who had seen the person signing the document or who had been well conversant and who had seen the executant signing the document. In the present case, no such deposition has been made by P.W.1 that he has seen the defendant signing the document nor can he so state as during the period when the transaction was entered into in the year 1978 or the acknowledgment were alleged to have been made namely during the period from 31-12-1980 to 24-12-1988, P.W.1 was not working in the concerned branch of the Bank as a Manager or otherwise. In any case he has not deposed that he was working in the Allahabad Bank or plaintiff's branch at Shimoga. When there is no such evidence that he was working in the plaintiff's Bank and especially in the branch at Nehru road, Shimoga, it cannot be expected that he would have seen or would have witnessed the transaction exhibited by the documents numbered as Exs.P.5 to P.10. He has also not stated that he is well conversant with the signature of the defendant.”

24 21. The Hon’ble Apex Court in the case of Shivakumar and others vs. Sharanabasappa and others reported in 2020 SCC Online SC 385, has held as under: “10.4. Learned Counsel for the appellant has referred to the decision in the case of H. Venkatachala Iyenger (supra). It is noticed that in paragraphs 18 to 22 of the said decision, this Court has synthesised and condensed almost the entire panorama relating with execution and proof of a Will and the guiding principles for a Court while examining the document which is propounded as a Will. These passages in the said 3-Judge Bench decision of this Court could be usefully reproduced as under: –

“18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67,

25 if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. …”

26 failed to prove the very execution of the document by the defendants and receipt of advance amount of Rs.35.00 lakhs. In the absence of the same, the suit filed by the plaintiffs for the relief of specific performance is not maintainable. Though learned counsel for the appellants contended that the plaintiffs were always ready and willing to perform their part of the contract as contemplated under Section 16(c) of the Specific Relief Act, the same cannot be accepted. Admittedly, the very agreement itself is not proved. Therefore, the question of readiness and willingness would not arise.

27 24. For the reasons stated above, the issue raised in the present appeal has to be answered in the affirmative holding that the Trial Court is justified in dismissing the suit of the plaintiffs for specific performance and the plaintiffs have not made out any ground to interfere with the impugned judgment and the decree passed by the Trial Court in exercise of the appellate powers under Section 96 of CPC. Accordingly, the appeal is dismissed as devoid of merits.

No order as to costs.

Sd/- JUDGE

Sd/- JUDGE

TL/mv