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1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 02ND DAY OF DECEMBER 2013
PRESENT
THE HON’BLE MR. JUSTICE K.L.MANJUNATH AND THE HON’BLE MR. JUSTICE A.V.CHANDRASHEKARA
R.F.A. NO.567/2007 BETWEEN :
Smt.Shantha Kumari W/o Late V.Prabhakar Aged about 62 years Residing at No.91 Doddaramaiah Lane Sarraki Layout Bangalore-560 078. ...APPELLANT (By Sri.K.Shailesh S. Shivaprasad, Adv. for Tarakaram Assts.)
AND :
Sri V.N.Satyanarayana S/o Sri VSN Mudaliar Aged about 57 years Residing at No.435, I Floor 7th Main, MICO Layout BTM II Stage Bangalore-560 070. …RESPONDENT
(By Sri M.S.Rajendra Prasad, Sr. Counsel) . . . .
This R.F.A is filed under Section 96 of CPC against the judgment and decree dated 21.12.2006 passed in O.S.No.2609/1993 on the file of the XI Addl. City Civil Judge,
2 City Civil Court, Bangalore, CCH-8, decreeing the suit for specific performance, damages and permanent injunction.
This R.F.A. having been heard and reserved for judgment, coming on for pronouncement of orders, this day, A.V.Chandrashekara. J., delivered the following:
JUDGMENT Defendant in original suit bearing No. 2609/1993 on the file of 11th Additional City Civil Judge, Bangalore, aggrieved by the judgment and decree dated 21.12.06, has filed the present appeal. Respondent herein was the plaintiff in the said suit. 2. Parties will be referred to as plaintiff and defendant as per their status in the said suit. Suit had been filed against State Bank of Mysore, Bangalore, as defendant No.2 since it had granted loan to defendant No.1 on deposit of title deeds of suit property with it and subsequently defendant No.2 was got deleted from the cause-title.
Plaintiff had filed a suit for permanent injunction against the defendant seeking to restrain the defendant or anybody claiming under her from interfering with his peaceful possession of a residential house bearing No.423, 11th ‘B’ Main, J.P.Nagar I Phase, Bangalore City, on the ground that she had
3 agreed to sell the suit property for a total consideration of Rs.4,00,000/- (Rupees four lakhs) vide Agreement of Sale dated 08.03.1993 and that on the same day she had received a sum of Rs.2,00,000/- (Rupees two lakhs) as advance on 08.03.1993 itself and that she had put him in physical possession of the suit property. As per the written agreement of sale dated 08.03.1993 the plaintiff had agreed to complete the entire sale transaction within six months form 08.03.1993 by paying the balance of sale consideration of Rs.2,00,000/-. This suit for permanent injunction came to be filed on 16.04.1993.
According to the plaintiff, contrary to the terms of the agreement, the defendant tried to alienate the property within the time fixed in the agreement. As such, he chose to file a suit for permanent injunction on 16.04.1993 stating that the cause of action arose on 31.03.1993 when the defendant wrote a letter intimating him that she was not prepared to sell the property to him. Reliefs of the permanent injunction was sought to restrain her from interfering not only from alienating but also from interfering with his peaceful possession of the suit property.
On 20.8.1993, plaintiff filed an application under Order 6 Rule 17 of CPC to get the plaint amended for inclusion of few paragraphs in relation to Rs.50,000/- each paid to the defendant on 18.3.1993, 21.3.1993 and 24.3.1993 respectively at her request as additional advance and for the relief of specific performance of the contract and alternatively for refund of Rs.3.50 Lakhs received as advance amount. The said application came to be allowed after contest and amended plaint was filed in the Trial Court. According to the plaintiff the defendant had not issued receipts for Rs.50,000/- each on 18th, 21st, and 24th March and that on insistence to issue receipts, she sent three receipts dated 18th, 21st and 24th March 1993 through a covering letter dated 24.04.1993 and therefore he could not mention about the payment of additional advance on these three dates, in the plaint filed on 16.04.1993 and therefore amendments became inevitable.
Defendant chose to file a detailed written statement denying the very execution of the agreement of sale and the receipt of the advance amount. The averment of the plaintiff that she had handed over the possession of the suit property to
5 the plaintiff had also been emphatically denied. According to her, it was a loan transaction and that she had been coerced to put her signature on blank papers at the instance of Hanumantharaju and Shankar the friends of the plaintiff who wanted her signatures on certain blank papers as security in respect of autorickshaw provided to her son Solomon.
According to her, plaintiff and his two friends had coerced her and obtained her signature misrepresenting the facts. According to her, only a sum of Rs.30,000/- was given to her during the month of January 1993 by taking her signatures on blank promissory notes, one blank stamp paper and three blank cheques. According to her, from 06.03.1993 the plaintiff and his two friends started coming to her house, pestering her to sell her house. When she resisted their attempts, they threatened to kidnap her daughter who was just 16 years. On 30.03.1993 at about 7.45 p.m. the plaintiff and his friends took her to MICO Police Station and threatened to put her signature. There was no other go except to put her signature under duress. According to her, they had managed the police in such
6 a way that her complaints were not all entertained by the police. Hence she had prayed for dismissal of the suit. On the basis of earlier pleadings six issues came to be framed on 28.07.1998. Consequent upon the amendment of pleadings additional issues came to be framed on 27.09.2003. They are as follows: ISSUES 1. Whether the plaintiff proves that he has been in lawful possession and enjoyment over the suit schedule property?
Whether plaintiff proves that he has any right to restrain the defendant No.1 from alienating the suit schedule property and collecting rent from the occupier’s of the suit schedule property?
Whether Plaintiff is entitle for the suit claim?
Whether 2nd defendant proves that it has got prior charge over the suit schedule property?
Whether plaintiff proves that there was any interference by the defendant?
What Order or Decree?
7 Addl. Issues 1. Whether the plaintiff proves that the defendant was agreed to sell the suit schedule property for Rs.4 lakhs and executed an agreement of sale dated 8-3- 1993 by receiving a sum of Rs.2 lakhs as advance? 2. Whether the Plaintiff proves that he has paid a further sum of Rs.1,50,000/- towards balance sale consideration? 3. Whether the Plaintiff proves that he has been always ready and willing to perform his part of the contract? 4. Whether the suit is barred by time? 5. Whether the suit is properly valued and the court fee paid is just and property? 6. Is plaintiff entitled the relief of specific performance? 7. Is plaintiff entitled for refund of the advance of Rs.3,50,000/- and a sum of Rs.1,50,000/- being the damages along with interest at the rate of 24% p.a. in the alternative?
Plaintiff is examined as PW1. He has got marked 17 documents as exhibits on his behalf. Defendant has been examined as DW1. No documents are marked on her behalf.
After hearing the arguments of the learned Counsel, issues 1 to 3, 5 and additional issues 1 to 3 and 5 and 6 have
8 been answered in the affirmative. Additional issues Nos.4 and 7 have been answered in the negative. 10. Several grounds have been urged in the appeal memo.
We have heard the arguments advanced by the learned Designated Senior Counsel Sri Tarakaram and Sri M.S.Rajendra Prasad for appellant and respondent respectively at length.
It is contended on behalf of the appellant that the trial Court has grossly erred in coming to the conclusion that the defendant executed a document on 08.03.1993 and that the said document is an out and out sale agreement. It is further contended that the trial Court has wrongly come to the conclusion that in all Rs.3.5 lakhs had been received by the defendant as advance from the plaintiff. It is contended that the Trial Court has not at all analysed the entire oral and documentary evidence in the right perspective and that it has failed to take cognizance of the circumstances under which the alleged agreement of sale marked as Ex.P1 came into being.
9 13. It is further contended that the burden cast upon the defendant to prove the allegation of coercion, fraud and misrepresentation of facts have been proved effectively by cross- examining PW1. Important admissions culled out from the evidence of PW1 have been virtually ignored by the Trial Court and that a wrong approach to the real state of affairs has been adopted is one more contention urged by the learned Counsel for the appellant. It is further contended that even if the document dated 08.03.1993 were to be accepted as an agreement of sale, plaintiff did not possess requisite funds to complete the alleged transaction and he has thoroughly failed to prove his readiness and willingness. It is very strongly contended that the Trial Court has adopted a casual approach while evaluating the evidence and has ignored the basic principles to be applied in a case like this. It is further argued that the plaintiff has hoodwinked the defendant and has gained unfair advantage. Thus grave injustice has been caused to the defendant and hence it is requested to allow the appeal in its entirety and dismiss the suit with exemplary costs.
10 14. Per contra, learned Counsel for the respondent has supported the impugned judgment contending that the allegation of fraud, coercion and misrepresentation of facts need higher degree of proof as they are serious allegations and that the said burden is not at all discharged. It is further contended that the defendant has gone to the extent of denying her own signatures found in the vakalath given to her advocate and her pleadings and this is a valid circumstance to disbelieve her defence. It is further argued that the Trial Court has properly analysed the evidence in right perspective and that the impugned judgment is based on sound logic and reasoning. Hence he has prayed for dismissal of the appeal with costs.
After going through the records and after hearing the arguments, the following points are required for effective determination of this appeal:
Whether the document marked as Ex.P1 has been duly proved and that if proved, whether it is an out and out agreement of sale?
11 2. Whether the plaintiff appellant has been able to probablize her defence in regard to non-payment Rs.50,000/- each on three dates i.e., 18th, 21st and 24th March 1993? 3. Whether readiness and willingness of the plaintiff has been satisfactorily proved? 4. Whether there is any scope for exercising the discretion in favour of the plaintiff in this case? 5. Whether any interference is called for by this Court and if so, to what extent?
Re. Point No.1 16. The authenticity or the genuineness of the agreement of sale marked as Ex.P1 has been seriously disputed. This is a very important document relied upon by the plaintiff as the basis for the equitable relief of specific performance. Mere proof of document is insufficient to grant the equitable relief of specific performance. Even if the execution of such a document is proved, a serious attempt is to be made by the Court to know whether it is an out and out sale agreement. Hence evaluation of circumstances surrounding Ex.P1 is equally relevant. It is
12 the case of the plaintiff that the defendant agreed to sell the suit property in his favour for a total consideration of Rs.4 lakhs vide agreement of sale dated 08.03.1993 and a sum of Rs.2 lakhs was paid by him to the defendant in the presence of the witnesses who have attested into the said document on 08.03.1993 itself. It is his case that a sum of Rs.50,000/- each was paid to the defendant on 18th, 21st and 24th March 1993 respectively towards the agreed consideration.
Ex.P1 is typed in English on 4 stamp papers. Two stamp papers are of Rs.10/- each and one stamp paper is of Rs.100/- denomination. As per the endorsements made on the backside first two stamp papers of Rs.10/- each came to be sold by stamp vendor Smt.Indira of Padmanabhanagar, Bangalore on 25.01.1993 to the defendant. One stamp paper of Rs.100/- is stated to have been sold in favour of the defendant on 05.03.1993 by stamp vendor Sri K.C.Basave Gowda. The date of execution of Ex.P1 is typed as 08.03.1993. The agreed consideration is mentioned as Rs.4 lakhs and out of this a sum of Rs.2 lakhs is stated to have been paid as advance. It is
13 mentioned that vendee had agreed to purchase the property through a registered sale deed within six (6) months from 08.03.1993. The vendee had agreed to pay the balance consideration either through pay order or cheques favouring the vendor or in the alternative to make cash payment.
Therefore six months time had been fixed to complete the transaction. Plaintiff chose to file a suit for permanent injunction on 16.04.1993 with a clear pleading that he had been put in possession of the suit property on 08.03.1993 by the defendant and that she had made attempts to interfere with his peaceful possession and further made attempts to alienate the property and had written a letter on 31.03.1994 expressing her unwillingness to sell property to him. In the said suit filed for injunction there is a reference of only Rs.2 lakhs being paid as advance on 08.03.1993. According to the amended plaint averments, defendant had received from him Rs.50,000/- each on 18th, 21st and 24th March 1993 respectively. If really he had paid Rs.50,000/- each on these three dates in the month of March 1993, it is ununderstandable as to how such payments
14 could escape his notice when the suit came to be filed on 16.04.1993. What is averred by the plaintiff in the amended plaint is that the defendant had failed to issue receipts on these three dates for having received Rs.50,000/- each. He has further averred that though three receipts are dated 18th, 21st and 24th March 1993, they were sent to him with a covering letter dated 24.04.1993.
As already discussed, plaintiff has sought the relief of permanent injunction on the ground that he was put in possession of suit property and defendant tried to interfere with his possession. Admittedly, suit schedule property has a ground floor and first floor. Ex.P3 and Ex.P4 are letters stated to have been written by the defendant to M.V.Ashok Kumar and M.V.Krishna who were her tenants to vacate and handover the vacant possession to the plaintiff as she had sold the same to Sri V.N.Sathyanarayana on the basis of an agreement of sale. Both these Exs.P3 and 4 are dated 08.03.1993. These documents clearly disclose that plaintiff was not at all in possession of suit property and they were in possession of
15 tenants as on 08.03.1993. There is no mention in Ex.P1 about possession being handed over to the plaintiff. When the tenants were in possession of suit property, it is ununderstandable as to how the plaintiff could be put in possession of the same. There is no evidence that these two tenants vacated and handed over the possession of suit property to the plaintiff either on that date or immediately thereafter. This is a very strong circumstance to doubt the alleged agreement of sale.
What is averred by him is that the first defendant brought Mr.Shankar and Mr.Hanumanthraju on the morning of 08.03.1993 to his house for the first time and all of them took him to the Court Complex. According to him, her advocate had kept a draft of agreement of sale ready and then she along with Shankar got typed the agreement of sale after purchasing the stamp papers. To this effect he has testified orally and in the last paragraph of page-7 and the beginning portion of page 8 of his oral evidence i.e., evidence of PW1. If this portion of the evidence were to be believed, the defendant met the plaintiff for the first time and agreed to sell the suit property and the
16 agreement vide Ex.P1 was prepared after the defendant purchased the stamp paper. As already discussed the stamp papers of Ex.P1 are dated 05.03.1993 (Rs.100 stamp paper) and 25.01.1993 (Rs.10/- each stamp paper). PW1 has specifically deposed that prior to 08.03.1993, there was no transactions between him and defendant No.1 in connection with the suit property. He has further deposed that prior to 08.03.1993 he had not paid any amount to the defendant No.1 in connection with the property. This is found in page No.10 of his deposition.
At another breath PW1 has deposed that the sale transaction took place one week or 10 days prior to the transaction and that on 07.03.1993 the sale transaction concluded fixing the sale consideration at Rs.lakhs by him. This is found in page No.10 of his deposition. The earlier part of his deposition is in clear contradiction with the later part found in the same page 10 of his deposition. If the deposition of PW1 found in the last portion of page No.9 is looked into, it appears that the defendant agreed to sell only on 08.03.1993. It is
17 curious to note as to who are these attestors i.e., Shankar and Hanumanthraju? They were officials of Indian Bank in which plaintiff was working earlier. He has not chosen to examine either of the two. In this regard it is relevant to look to his deposition in page-5 which discloses that the attestors were well known to him as himself and they were working in the same Bank. The said Hanumanthraju had also discussed with him about the suit and he had come to his house two days prior to 04.07.2005 on which date he was further cross-examined. To this effect he has testified and the same is found in page-6 of his deposition.
What is deposed by him in his examination-in-chief is that he paid Rs.2,00,000/- to the defendant on 08.03.1993 and thereafter she signed Ex. P1. It is his case that he had borrowed money from his father the previous day and that his father had money with him after having sold one of his properties. He states that his father had sold his property 2 or 3 months earlier. But PW-1 is unable to furnish the property details and the sale transaction details of his father. To a specific question put to him as to whether there was any
18 difficulty to obtain sale details, he has answered that there was no necessity for him to obtain the details. According to him, his father had given him Rs.1.5 lakhs in the month of March 1993 and that he put his money of Rs.50,000/- and gave the defendant a sum of Rs.2 lakhs. If really he had at his disposal a sum of Rs.2 lakhs either on 08.03.1993 or immediately prior to it, nothing had obstructed him to get the details and to furnish the same to the Court. Admittedly his father died in 1997. PW1 has not furnished details of the sale transaction of his father. He did not have money with him except Rs.50,000/- on 07.03.1993. In the light of a categorical denial of the receipt of Rs.2 lakhs by the defendant, it was incumbent upon PW1 to have placed on record some material in the form of payrole or cogent evidence to substantiate his financial capacity on 08.03.1993 or immediately prior to that. Even the said amount of Rs.50,000/- he had was saved by him in 1988 through his business and had invested the same in gold and that he sold the gold and thus he had money. This appears to be highly improbable.
19 23. The plaintiff has not been able to probabalise that he had sufficient money at his command to pay a sum of Rs.2,00,000/- as advance on 08.03.1993 to the defendant. It is his case that he had Rs.50,000/- at his disposal, being the amount realized by selling the gold ornaments and that those gold ornaments had been purchased out of the savings made by him during the year 1987-88 by means of business. It is his case that he had kept that money in Nidungadi Bank, J.C.Road Branch, Bangalore, in 1993. Any how this has to be disbelieved. The relevant portion of the evidence of PW1 recorded on 13.10.2006 in Kannada is translated and extracted below:
“I do not remember the name of the person who purchased the property from my father, but I know the person who purchased the property. My father had sold the property in Coles Road, of Frazer Town, Bangalore. I do not know about the date on which it was sold and the amount for which it was sold. My father died in 1997. Since the money I had was insufficient, I took money from my father and paid it as advance to the defendant. My father had paid me the amount in cash. He had paid me in March 1993,
20 but I do not remember the date of payment made to me by my father. I do not know whether my father had brought the money from the Bank or from his house. My father gave me Rs.1,50,000/-, I added Rs.50,000/- which was with me and paid Rs.2,00,000/- in all to the defendant as advance.
It is true that I was unemployed in 1993. I had earned Rs.50,000/- through business and I had saved the said money in 1987-88. I had purchased gold from out of the money saved by me. For the purpose of this suit sale transaction I sold the gold. In 1993 I had kept money in my savings bank account in Nidungadi Bank, J.C.Road Branch, Bangalore. I have no difficulty to produce the document to show as to what amount of money I had in my savings Bank at the time of this agreement of sale.”
Admittedly PW1 was a money lender and had lent money to the bank employees Mahadeva, Doddarangaiah. He could not remember the names of other persons to whom he had lent money. He has further deposed that he had lent money to the defendant also in the month of January or February 1993. He has deposed to that effect in page 8 of his deposition. It is his
21 admission that he was taking On Demand Promissory Note or cheques as surety to the loan advanced. It is his deposition that he had paid approximately a sum of Rs.46,500/- as loan to the defendant. Apart from this she had taken a sum of Rs.1.25 lakhs from him by discounting the cheque and that was in the month of January 1993. There is no evidence in regard to all these loan transactions of the plaintiff with the defendant. But it is not his case that she agreed to sell the suit property in connection with the alleged loan transaction. He has deposed that prior to 08.3.1993 there was no transaction with the defendant in respect of the suit property and that he had not paid any money to her in this connection.
It is his case that he had Rs.50,000/- in his S.B. account of Nidungadi Bank, J.C.Road branch, Bangalore. He has deposed that there was no difficulty for him to produce records in this regard. But he has not produced any material to that effect. In the light of these two circumstances i.e., the alleged circumstance of his father selling his property and giving Rs.1.5 lakhs to PW1 and PW1 having Rs.50,000/- in his S.B.account, an adverse inference will have to be drawn under Section
22 114(g) of Evidence Act stating either he did not have the money or if documents are produced they will be unfavourable to him.
One more circumstance doubt the veracity of the agreement of sale marked as Ex.P1 in an affidavit stated to have been sworn to by the defendant vide Ex.P2. The said Ex.P2 is a stamp paper of Rs.10/- said to have been purchased by the defendant on 05.03.1993 from stamp vendor K.C.Basave Gowda. This exhibit P2 is stated to have been sworn on 06.03.1993 before a notary public. It is clear that Ex.P2 is prior to the date of Ex.P1. Through this agreement, defendant is stated to have assured plaintiff that her property is unencumbered and that she would undertake to produce all the missing original title deeds were traced. Whereas in paragraph- 4 of his deposition PW1 has deposed that on 08.03.1993 she executed an agreement of sale and handed over an affidavit vide Ex.P2 agreeing to trace and produce the original title deeds. For better appreciation of facts paragraph-4 of his deposition is reproduced as hereunder:
23 “4. It is further submitted that as per the above terms I paid a sum of Rs.2,00,000/- as advance on the date of the execution of the agreement ie on 8.3.1993. The receipt of which the defendant has acknowledged. After receipt of the said advance in part performance of the agreement of sale, the defendant delivered possession of the Schedule property on the same date along with certified copies of the title deeds and further assured that she will hand over all original documents immediately after tracing them. In this behalf the defendant has also given an affidavit. The copy of the same is produced herewith and marked as Exhibit P2”.
If this is his stand, it is ununderstandable as to how affidavit dated 06.03.1993 marked as Ex.P2 and another affidavit dated 06.03.1993 marked as Ex.P8 could come into being. Ex.P2 and P8 are notarized affidavits stated to have been signed by the defendant. Ex.P2 discloses that the original title deeds of the suit property had been lost and that she would undertake to produce the same the moment they are traced. It also speaks of property being unencumbered. Ex.P8 speaks alienation of suit property done by her and the receipt of the part of the agreed consideration and execution of an irrevocable
24 power of Attorney in favour of V.N.Sathyanarayana, the plaintiff. In both these affidavits there are two signatures one above the word ‘deponent’ and one below the word ‘deponent’. Both these signatures found on Ex.P2 and Ex.P8 do not tally and there are marked differences. He has admitted about the two signatures on each of these exhibits and also about the dissimilarity of the signatures. He has admitted that the signature found below the word ‘deponent’ tallys with the other admitted signatures of the defendant and that the one above the word ‘deponent’ not at all tallys with her signature.
On going through these exhibits, it appears that there was transaction prior to 08.03.1993 in connection with the suit property. If really Ex.P1 had come into existence on 08.03.1993 and if Rs.2 lakhs was paid as advance only on 08.03.1993 under Ex.P1, it is ununderstandable as to how there could be a reference about an agreement to sell and receipt of partial consideration on 06.03.1993.
There is absolutely no explanation to that effect. Whatever explanation he has offered to tender is only a ruse or a make believe theory. This is one strong suspicious circumstance surrounding Ex.P1 and this
25 really dents into credibility or authenticity of Ex.P1 as an out and out agreement of sale.
Apart from this, he had initiated criminal proceedings in C.C.No.14813/1997 on the basis of cheques said to have issued in his favour by the defendant, as a security to the loan transaction. Hence this would fortify the contention of the defendant that plaintiff was taking not only blank pronotes containing her signatures but also blank cheques for whatever little amount he had given to her as loan.
Similarly Ex.P10 is an irrevocable Power of Attorney stated to have been executed by the defendant in favour of the plaintiff on 06.03.1993 on two stamp papers of denomination of Rs.100/- and Rs.10/- respectively. But this is in respect of the suit property. What is stated in Ex.P10 is that she was not in a position to hold the property due to financial problems and therefore she was executing Ex.P10 to safeguard and develop her property. If the contents of Ex.P10 were to be accepted, it is clear that she had never intended to sell the property, but specifically intended to save and protect her property. It also
26 speaks that she was in possession of the property. But PW1 himself has admitted in his evidence that two tenants were in occupation of the same. If PW1 were to assert that Ex.P10 is a power of attorney coupled with interest, both Ex.P1 and Ex.P10 should have come into existence on the same day. This further belies his theory of Ex.P1 having really come into existence as an out and out agreement of sale. Even in Ex.P10 also there are two signatures. The signature above the word ‘deponent’ substantially differs with that of the one below the word ‘deponent’. He has hastened to add an explanation that since the defendant did not put her signature correctly above the word ‘deponent’ she was asked by him to put her signature below the word ‘deponent’. This is highly unacceptable. The reasonable inference that can be drawn is that her signatures were obtained to Exs.P2, P8 and P10 after all the formalities were concluded before the Notary public.
Ex.P8 is an affidavit typed on stamp paper of Rs.10/- and it states that it was sold by stamp vendor K.C.Basave Gowda to the defendant on 05.03.1993. It has also two signatures i.e., one above and one below the word ‘deponent’. It
27 reiterates about the physical possession of suit property being handed over to the plaintiff and execution of irrevocable power of attorney in his favour. Ex.P8 is stated to have been executed on 06.03.1993. This document also appears to be highly doubtful. In his cross-examination found in page 10, PW1 has deposed that the sale transaction took place one week or 10 days prior to Ex.P1 and transaction was concluded on 07.03.1993 by fixing the sale transaction. This is in clear contradiction with his earlier deposition that there was no transaction prior to 08.03.1993. But it is curious to note that he has deposed as found in page 5 of his oral evidence, that defendant approached him on all occasions with Shankar and Hanumantha Raju and on 05.03.1993 he decided to purchase the property by fixing the sale price at Rs.4 lakhs. Her stand that Shankar and Hanumanth Raju had taken her to the house of plaintiff i.e., the day on which Exs.P2, P8 and 10 came into being, is probabalized as PW1 has admitted that they had come to this house on 06.03.93 with these two persons. Admittedly he was doing money lending and had lent some money also to the defendant and hence these documents being got prepared
28 in collusion with his henchmen Shankar and Hanumantharaju as securities cannot be ruled out. The circumstances surrounding Ex P1, P2, P8 & P10 probabalize the same.
He has deposed that when the talks were concluded on 05.03.93, there was no difficulty to get a written agreement of sale on 06.03.93. He had admitted that as on 08.03.93 tenants were in possession of the suit property. He has admitted that as on 08.03.1993 tenants were in possession of the suit property. He has further deposed that Ex.P8 came into existence either on 6th or 8th of March. He has no answer to the question as to why the loss of original title deeds and execution of GPA could not have been mentioned in one affidavit. If really the transaction had been orally concluded on 06.03.1993 it is ununderstandable as to how stamp papers could be purchased on 05.03.1993 itself.
Ex.P9 is another affidavit stated to have been executed on 08.03.1993 by the defendant stating that the sale money received by her from V.N.Sathyanarrayana would be invested in purchasing a house for residing. There are no details as to the
29 date on which it was sold, the name of the purchaser and the name of the stamp vendor. All these columns are blank. If really this affidavit marked as Ex.P9, and other affidavits marked as Exs.P2 and P8 and GPA marked as Ex.P10 had come into existence, they would have found a place in the alleged agreement marked as Ex.P1. If really Ex.P1 was intended to be an agreement of sale, these documents were not at all necessary or would not have come into existence. It is very clear that the plaintiff has made all efforts to bind the plaintiff in one way or the other. But conjoint reading of all these documents would speak in volumes against him.
But the learned Trial Judge has opined that in view of the admission of DW1 about her signatures on Ex.P1 and in view of her status as an official of the bank, she has failed to prove that her signatures were obtained by coercion and misrepresentation of facts. It is the view of the learned Judge that such allegations of fraud and coercion require higher degree of proof and in the light of her inability to adduce satisfactory proof in this regard, the contents of Ex.P1 will have to be accepted. It is further opined that DW1 has gone to the
30 extent of denying her own signatures found on the vakalath given to her advocate and her pleadings and affidavits in order to deny her signatures on the agreement. Hence it is held that her stand is wholly unacceptable. Her signatures on her vakalath and pleadings have been got marked Exs.P12(a), 13(a), 14(a), 15(a) and 16(a).
Admittedly the entire burden is on the plaintiff not only to prove the execution of the agreement of sale, its nature as an out and out agreement of sale, but also the payment of advance of Rs.2 lakhs on 08.03.1993 and further payment of further sum of Rs.1,50,000/- (Rupees One lakh fifty thousand) each on three dates in the month of March 1993 and his readiness and willingness to perform his part of the contract. As per Sections 101 and 102 of Indian Evidence Act, the burden is upon the person approaching the Court for specific relief. Admittedly no statutory presumption is available to the plaintiff in this case. All the issues so framed by the Court have thrown burden on him. Unless the initial burden is effectively discharged, the onus does not shift on the other side notwithstanding the inconsistencies in the case of the defendant i.e., the adversary.
31 In fact PW1 has not been able to withstand the rigour of the lengthy cross-examination done by the opposite counsel. Very many startling information have been elicited during his cross- examination and they are virtually admissions within the meaning of Section 17 of the Evidence Act. Vital facts culled out from his mouth have virtually probablized her defence and the circumstances discussed earlier have virtually created a serious doubt about his case and the validity or authenticity of the documents relied upon by PW1. Hence we are of the opinion that the plaintiff-respondent has miserably failed to prove the execution of a document by the defendant on 08.03.1993 and further failed to prove that it was an out and out agreement of sale. Hence point No.1 is answered in the negative.
Re. Point No.2
Plaintiff’s case is that a sum of Rs.50,000/- each was received by the defendant on 18th, 21st and 24th of March 1993 as additional advance as she had some financial difficulties. To that effect he has pleaded in paragraph 5(a) of the amended plaint. As already discussed there was no pleading to that
32 effect when the suit was initially filed for mere permanent injunction on 16.04.1993. Just because the application under Order 6 Rule 17 of CPC came to be allowed, it cannot be said that the same has to be accepted without any analysis of the oral and documentary evidence placed to that effect. If really these payments had been made on these days, he would have in the normal course, pleaded to that effect on 16.04.1993 itself. In the light of this let us analyse the evidence placed in this regard.
He has further pleaded in paragraph 5(a) of the amended plaint that though the payments were made on 18th, 21st and 24th March 1993, through a common friend, defendant had not issued receipts to that effect immediately and on repeated demands she issued three separate receipts with a covering letter dated 25.03.1993 but sent to him on 24.04.1993. This is how he wants to explain as to why he could not plead initially in the plaint filed on 16.04.1993. Exhibits P4 to P6 are the alleged receipts dated 24th, 21st and 18th March respectively. Ex.P7 is stated to be the covering letter dated
33 25.03.1993 stated to have been sent along with Exs.P4 to P6 on 24.04.1993.
The oral evidence tendered by PW1 to that effect is in page 23 of his deposition and it is most contradictory to the pleadings. He has deposed that receipts marked as Exs.P4 to P6 were sent to him by the defendant through her son on 25.03.1993. He has admitted that Exs.P4 to P6 are in his handwriting and has deposed that he had sent them to the defendant through her son for her signature. It is his case that on 22nd and 23rd he had sent two receipts and the third receipt was sent by him 24.03.1993 or 25.03.1993. He has further deposed that the third receipt reached him three or four days thereafter. It is in evidence that the defendant had not brought the receipts as on the date of payment made to her. He has further deposed that he did not think of getting receipts on the very dates of making payments of Rs.50,000/- each. Oral evidence to this effect is found in pages 23 and 24 of his deposition. From his own oral evidence it appears that in the last week of March itself, he was in possession of these receipts. Therefore the evidence let in contrary to the pleadings in
34 paragraphs 5(a) of the amended plaint. It is ununderstandable as to how a money lender would advance loan of Rs.1,50,000/- without insisting for receipts more so when he could rely upon Exs.P2, 7, 8 9 and 10. Therefore, his pleading that on 24.04.1993 he got Exs.P4 to P6 with a covering letter marked as Ex.P7 will have to be considered as most unbelievable and the same does not stand to logic or reasoning.
It is interesting to note that in Ex.P7 dated 25.03.1993, there is a reference to the effect that the defendant would make arrangement for eviction of tenants. Therefore the theory of having been put into possession on 08.03.1993 vide Ex.P1 or immediately prior to that is only a ruse. Ex.P12(a) is the admitted signature of the defendant on her vakalath executed in favour of her advocate on 24.01.1994. DW1 has denied her signatures on Exs.P4 to 6. These three signatures are quite distinct to the signature marked as Exs.P12(a) and 15(a). And this is apparent to the bare eyes. Hence the authenticity of Exs.P4 to P6 is highly doubtful and hence no credence could be attached to them.
35 40. In regard to the additional advance of Rs.50,000/- each paid on 18th, 21st and 24th of March 1993, it is his case that he took Rs.50,000/- loan from his cousin Rajavelu and Rs.1,00,000/- from his father. According to him, he had to take money from them since he did not have money. To this effect he has deposed on 13.10.2006. We have every reason to disbelieve his version in regard to the availment of money from his father and Rajavelu. Anyhow, for better understanding of the facts this deposition recorded on 13.10.2006 is in Kannada and translated to English. The same is extracted below:
“In order to pay Rs.50,000/- each on 18.03.1993, 21.03.1993 and 24.03.1993 i.e., in all Rs.1,50,000/- to the defendant, I had taken Rs.50,000/- from Sri Rajavelu, son of my senior paternal Uncle and Rs.1,00,000/- from my father. Since I did not have money with me, I took the same from the two persons and paid to the defendant. My senior paternal Uncle’s son Rajavelu was in Mysore and he died about two years ago. He was Secretary in Bangalore Development Authority. I did not get any document for taking Rs.50,000/- from me. I have repaid the amount of Rs.50,000/- to Rajavelu during
36 his lifetime. I have not taken any receipt to this effect.”
He i.e., PW1 has admitted that he was unemployed in 1993. It is his version that he had earned Rs.50,000/- in the business during the year 1987-88 and that he had purchased gold out of this earnings. According to him, the gold so purchased was sold by him to pay further advance. He has further deposed that he got one lakhs rupees from his father and Rs.50,000/- from one Rajavelu who was the son of his paternal Uncle. Admittedly there is no document for having availed financial assistance from his father or Rajavelu to pay additional advance. According to him, both are no more. He has deposed that he has shown in the Income Tax Returns about the payment of Rs.3.50 lakhs as advance. But nothing prevented him from producing the Income Tax returns. If he had really received Rs.3.50 lakhs as financial assistance from his father and Rajavelu, he would have shown in Income Tax returns. Non-production of such documents would raise an adverse presumption under Section 114(g) of the Evidence Act. This would strongly probablise the defence of DW1 that PW1 did
37 not have money with him either on 06.03.1993 or 08.03.1993 or on the three dates mentioned in Exs.P4 to P6.
In fact he has deposed that he does not remember whether Ex.P7 was given to him after the payment was made or earlier to the payment. Ex.P7 contains the signature of one Solomon. He is the son of DW1. We do not understand as to why Solomon had to put his signature to Ex.P7. It is his case that he had not asked DW1 to send a letter like Ex.P7. Such being the case, no prudent man will volunteer to prepare such a document like Ex.P7. Even otherwise, Ex.P7 does not speak anything about the receipt of Rs.50,000/- each on 18th, 21st and 24th March 1993. The very execution of Ex.P7 and handing over to PW1 appears to be highly doubtful. Taking all these into consideration we are of the view that plaintiff has thoroughly failed to effectively prove the payment of Rs.1,50,000/- as further advance to DW1. After carefully analyzing the circumstances surrounding Exs.P4 to P7 and the oral evidence we answer point No.2 in the negative.
Re. Point No.3
We have categorically held that plaintiff has miserably failed to prove the execution of Ex.P1 and its nature as an out and out agreement of sale and the payment of Rs.3.50 lakhs as advance. Plaintiff has averred that on 31.03.1993, defendant wrote a letter to him stating that she was not interested in selling the property to him. This letter, according to him, was the basis for cause of action to file the suit even before the expiry of six months stipulated in the agreement. The said document is not at all produced before this Court. The explanation given by him in his evidence to that effect is highly unbelievable. If really he had received such a letter he would have called upon her to execute the sale deed atleast by issuing a notice or causing a legal notice through his lawyer. We have held that he did not have sufficient money with him either in the month of March 1993 or immediately prior to or after the month of March.
39 44. Section 16(c) of Specific Relief Act mandates clear proof of readiness and willingness to get the equitable relief of specific performance and the failure to plead and prove the same is fatal to the person seeking such an equitable relief. No pleading is found in respect of readiness and willingness in the amended plaint. Hence we are of the opinion that the plaintiff has thoroughly failed to prove his readiness and willingness to perform his part of the contract. Accordingly we answer point No.3 in the negative.
Re. Point No.4
Section 10 of Specific Relief Act, 1963, speaks about the case in which specific performance of contract is enforceable. Section 20 speaks about the direction as to decreeing specific performance. On reassessing the whole evidence we have specifically held that plaintiff was a money lender and had lent some amount prior to this alleged sale agreement and had obtained sufficient security by way of blank cheques and promissory notes with the
40 signatures of the defendant. We have specifically held that he did not have money with him either on 08.03.1993 or on the three dates i.e., 18th, 21st and 24th of March 1993 to pay the advance amount. We have clearly pointed out the suspicious circumstances surrounding the execution of Ex.P1 the alleged agreement of sale and Ex.P2 to Ex.P10. We have even held that signatures of DW1 were obtained under coercion. Such being the case the question of exercising the discretion in any manner in favour of the plaintiff does not arise at all. In this case unfair advantage gained by the plaintiff is apparent. Hence this point is to be answered in the negative moreso, when it is only of academic interest. Accordingly we answer point No.4 in the negative.
The grant of specific performance is in the discretion of the Court as it is an equitable relief. Party seeking such equitable relief must approach the Court with clean hands. Suppression of material facts will disentitle such a person to have such a relief. In
41 exercising discretion, Court should take into account the circumstances of the case, the conduct of the parties, and the respective interests under the contract. An agreement which inflicts more injury on the defendant than it confers a benefit on the plaintiff will not be enforced.
Normally appellate Court will not interfere with the discretion exercised by the trial Court in specific performance of contracts. But if the exercise of such a discretion is unreasonable or against judicial principles, the appellate Court will have to interfere with such discretion being exercised by the Trial Court. Even in cases where hardship would be caused to the defendant, discretion will not be used in favour of the plaintiff. Hence a contract is to be judged as at the time at which it was entered into.
Re. Point No.5
We have held that plaintiff has thoroughly failed to prove that he had paid in all Rs.3.50 lakhs as advance.
42 Whatever money that the defendant had received as loan were prior to the alleged sale agreement. The plaintiff was cautious to bind the borrowers by obtaining promissory notes and blank cheques. The possibility of misusing the same cannot be ruled out. He had already initiated criminal proceedings in 1997 for bouncing of the cheques allegedly issued by the defendant, under Section 138 of N.I.Act. Taking into consideration his own evidence and the overall evidence, it is clear that plaintiff was a money lender in obtaining various documents and even at times creating documents, to support his stand.
It is unfortunate that the learned Judge has not critically evaluated the oral and documentary evidence in the light of heavy burden cast upon him under Sections 101 and 102 of evidence Act. In fact no issue is framed casting burden on the defendant. Inconsistencies found here and there found in the evidence of DW1 have been blown out of proportion keeping in mind that the allegation of coercion and misrepresentation require higher degree of
43 proof. On the other hand PW1’s oral evidence itself has falsified the authenticity of the documents relied upon by him.
When the suit was filed for permanent injunction, leave should have been actually sought to seek the relief of specific performance within a reasonable time as per the provisions of Order 2 Rule 2 of CPC. Having not reserved the right of filing a suit for specific performance, even getting the suit amended seeking the relief of specific performance, is virtually an inhibition under order 2 Rule 2 of CPC.
We are not happy about the manner in which the evidence is appreciated by the Trial Court that too without looking to the effect of Exs.P2 to 10 on Ex.P1. Here is a money lender who has filed suit for specific performance against a borrower to whom he had lent some amount earlier to March 1993 that too by obtaining innumerable documents as security. We cannot forget that Sri Shankar
44 and Hanumanthraju were close to him being erstwhile employees in the same Bank assisting him in obtaining or creating many documents. Defendant is a lady having three children. The first son was unemployed and she was interested in helping him. Suit property is the only property available for her residence and the same is in a very prominent locality of Bangalore City. It is an urban property and value of the same has been increasing substantially from year to year. On analysis of the entire evidence, we are of the opinion that the plaintiff has thoroughly failed to prove material aspects like the agreement to sell, passing of partial consideration, readiness and willingness. 50. A party who wants the equitable relief of specific performance must come with clean hands to the Court. In fact plaintiff has suppressed material facts from the purview of the Court. He has withheld the best evidence available to him. Being the final Court of facts we have reassessed the evidence in the light of the law applicable to
45 enforcement of specific performance of contract. We do not see anything to fall in line with the reasoning given by the trial Court or the final opinion. Accordingly, the appeal is to be allowed in its entirety with costs throughout. ORDER Appeal filed under Section 96 of CPC challenging the judgment and decree granted for specific performance of contract in O.S.No.2609/1993 on the file of 11th Addl. City Civil Court, Bangalore, is allowed in its entirety with costs throughout. Consequently, suit in O.S.No.2609/1993 stands dismissed.
Sd/- JUDGE
Sd/- JUDGE
JT/-