Bangalore District Court
Gopalakrishna Panicker vs M/S Bijith International Builders on 25 January, 2025
1 O.S.No.2759/2018
KABC010103932018
IN THE COURT OF THE LXIII ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-64) AT BENGALURU
Dated this the 25th day of January, 2025
: PRESENT :
Sri. I. P. Naik
LXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
OS No.2759/2018
PLAINTIFF :- Sri.R.Gopalakrishna Panicker,
S/o.late P.Rama Panicker,
Aged about 63 years,
R/at.Flat No.209,
Bijith Classic Apartment,
Near Kristu Jatanthi College,
Kothanur Post,
Bangalore-560 077.
(By Sri. Kumara, Advocate)
-V/s-
DEFENDANT : M/s.Bijith International
Builders, A proprietary
concern, Having its Reg office
at Flat No.109, Bijith Classic
Apartment, K.Narayanapura,
Next to Kristu Jayanthi Collge,
Kothanur Post,
2 O.S.No.2759/2018
Bangalore-560 077.
represented by its
Proprietor Balan,
Thachaputty @ T.U. Balan.
And also at:
pent House Bijith tower,
Bank Avenue, 7th Cross,
Nanjappa Garden,
Babusabpalaya,
Kalyan nagar,
Kalyan Nagar Post,
Bengaluru-560 043.
(by Sri.C.G-Adv)
--------------
Date of institution of the suit 11.04.2018
Nature of the suit Money Suit
Date of commencement of
24.10.2019
recording of evidence
Date on which the judgment 25.01.2025
was pronounced
Years Months Days
Total Duration
06 09 14
**********
3 O.S.No.2759/2018
JUDGMENT
The plaintiff has filed this against for defendant
recovery amount of Rs 21,15,938/- with interest @ rate
of Rs 18% per annum from date of suit until realisation
of entire amount.
2. The factual matrix of plaintiff’s case;
The defendant is proprietor of Bijith International
Builder and engaged in the business of construction of
residential apartments and land developing in and
around the Bengaluru city. The defendant has
constructed “BIJIT CLASSIC” apartments situated at
K.Narayanapura, Kothanur, Bengaluru. The plaintiff and
his daughter have entered in to sale agreement with
defendant, to purchase flat bearing No.108, first floor
with parking unit in basement. The defendant has
agreed to sell aforesaid flat, the plaintiff has paid
advance sale consideration of Rs 17,50,000/-. The
defendant agreed to deliver the possession of and
4 O.S.No.2759/2018
execute sale deed within three months from date of
agreement.
3. The plaintiff has learnt that, the defendant sold
said flat to third person @ higher rate and caused
wrongful loss to plaintiff. The plaintiff has demanded
refund of advance sale consideration. The defendant
postponed the demand of the plaintiff. After that, the
defendant issued cheque bearing No 789908 for
repayment of Rs.19,00,000/-. Said cheque presented for
encashment through his Banker. Said cheque was
dishonoured. The plaintiff has intimated about
dishonour of cheque by issuing notice through
registered post. In spite of service of summons, the
defendant did not replied to notice or did not repaid the
amount covered under cheque. After three months, the
defendant paid amount of Rs 5,00,000/- through cheque
bearing No 299749. Said amount credited to account of
plaintiff.
5 O.S.No.2759/2018
4. The defendant has failed to performed his part of
contract, he is liable to pay a sum of Rs 18,75,000/-
with interest at the rate of Rs 18% pa from 18.07.2017
till 04.04.2018. It comes to a sum of Rs 2,40,938/-. The
defendant is liable to pay total amount of Rs
21,15,938/-. The defendant has failed to pay the said
amount. Hence, the plaintiff has filed this suit with
aforesaid relief.
5. In pursuant to summons, the defendant has
appeared through his counsel and filed written
statement. Wherein, he admitted that his is proprietor of
M/s Bijit International Builder. Further, the defendant
has specifically denied that, he has entered in to sale
agreement of flat with plaintiff. The defendant denied
that, the plaintiff and his daughter paid advanced sale
consideration of Rs 17,50,000/-. Further, the defendant
denied that he has offered to plaintiff and his daughter
6 O.S.No.2759/2018
to sell his flat. Further,denied that he sold flat to third
person, which was offered to sell to plaintiff and his
daughter. The defendant contented that, court fee paid
by plaintiff is insufficient. A daughter of plaintiff is
necessary party to this suit. Hence, prays for dismissed
the suit with cost.
6. Based on above rival pleading following issues
were framed.
(1) Whether the plaintiff proves that the
defendant has executed agreement of sale
on 27.06.2015 in favour of himself and his
daughter Kum.Arpitah.G in respect of sale
of residential apartment bearing Flat
No.108 First Floor, Bijith Classic
Apartment, K.Narayanapura, Next to
Kristhu Jayanathi College, Kothnapura
Post, Bangalore, having super built up
area of 1643 Sq.ft and one covered
parking unit in the basement of the
apartment.?
7 O.S.No.2759/2018
(2) Whether the plaintiff proves that on
27.06.2015 he has paid an advance sale
consideration amount of Rs.17,50,000/-
to the defendant.?
(3) Whether the plaintiff proves that the
defendant has sold that Flat No.108 to
some third party.?
(4) Whether the plaintiff proves that the
defendant has issued cheque bearing
No.789908 for Rs.19,00,000/- on
27.02.2016 drawn on State Bank of India,
Devanahalli, Bengaluru Rural, in his
favour towards repayment fo the advance
sale consideration amount of
Rs.17,50,000/- with interest.?
(5) Whether the plaintiff proves that the cheque bearing NO.789908 dated
27.02.2016 for Rs.19,00,000/- drawn on
State Bank of India, Devanahalli,
Bangalore Rural, was bounced due to
funds insufficient on 29.02.2016.?
8 O.S.No.2759/2018
(6) Whether the plaintiff proves that the
defendant has paid Rs.5/- Lakhs to him
by means of cheque bearing No.299749
drawn on State Bank of India, Bangalore
towards part payment of the cheque
amount of Rs.19,00,000/-.?
(7) Whether the suit is barred by limitation.?
(8) Whether the plaintiff is entitled to the
relief as sought for.?
(9) What order or decree.?
7. In order to prove his case, the plaintiff himself
examined as PW.1 and fourteen documents got marked
at Ex.P.1 to 14. In spite of providing sufficient time and
opportunity, the defendant fails to adduced his evidence.
No documents produced on behalf of defendant. One
document marked on behalf of Court i.e., vakalath and
signature of defendant thereon, marked at Ex.C.1 and
Ex.C.1(a).
9 O.S.No.2759/2018
8. Heard, learned counsel for plaintiff. In spite of
providing sufficient time and opportunity, the defendant
fails to canvassed agreement. This Court directed to
defendant submits written arguments. In spite of that,
the defendant has not chosen file written arguments.
Then posted for Judgment.
9. On considering rival pleadings, oral evidence of
PW.1, documentary evidence placed by plaintiff and
hearing of the plaintiff, my answered to aforesaid issues
as under.
ISSUE No.1 In the affirmative.
ISSUE No.2 In the affirmative.
ISSUE No.3 In the affirmative.
ISSUE No.4 In the affirmative.
ISSUE No.5 In the affirmative.
ISSUE No.6 In the affirmative.
ISSUE No.7 In the negative.
ISSUE No.8 In the affirmative.
ISSUE No.9 As per final order.
10 O.S.No.2759/2018
————–for following;
REASONS
ARGUMENT
10. The learned counsel for the plaintiff submitted that
in this case, plaintiff has proved his case by producing
oral and documentary evidence. The accused himself
has paid Rs.5/- Lakhs. This itself discloses that the
accused is liable to pay the amount due from him. In the
course of cross-examination, the learned counsel for the
defendant tried to elicited from the mouth of PW1 That
signature found on sale agreement is not belongs to the
defendant and prior notice is not served on the
defendant. The defendant specifically answered to the
question put forth by the learned counsel for the
defendant. Hence, prays to decree the suit of the plaintiff
as prayed for.
11 O.S.No.2759/2018
ORAL AND DOCUMENTARY EVIDENCE
11. In order to prove the case of the plaintiff, the
plaintiff himself stepped into the witness box and filed
affidavit in lieu of examination in chief wherein, he has
elicited the facts narrated in the plaint. In support of his
oral evidence, he has produced sale agreement Ex.P.1,
cheque Ex.P.3, bank endorsements Ex.P.5 to 7 Ex.P.8 &
9, notice Ex.P.10. Bank pass books Ex.P.11 to 13.
Statement of extract Ex.P.14. Digitalized certificate of
sale deed dated 11.07.2016.
12. In the course of cross-examination PW.1
stated that he has not mentioned the Flat Number in the
notice. He has not obtained the signature of the
defendant on last page of the Ex.P.1. Advance sale
consideration is paid through cheques and in cash.
Further, he stated that he has produced the bank
statement and he has paid the advance sale
consideration to him. His daughter purchased the
12 O.S.No.2759/2018
property i.e., another Flat in Bejith Classic Apartments
from the owners. Further he specifically stated that he
has entered into agreement of sale Ex.P.1 with the
builder. Further stated that in the year 2020 the
defendant sold the flat which is agreed to sell in favour of
the plaintiff.
13. Further stated that prior notice is not served
on the defendant. But he is specifically residing in the 3
address one at his office, another one is
At Dsaanapua and another one at Babusha palya,
Kalyana Nagar, Bengaluru. Ex.P.10(b) is received and
signed by Shobha Balan. Prior to entering into the
agreement of sale, the defendant and the plaintiff are
well known to each other and they are friends.
14. Issues No.1:-
The plaintiff has taken specific contention that the
defendant entered into an agreement dated 27.06.2015
13 O.S.No.2759/2018in order to purchase the flat No.108, 1 st floor, Bejith
Classic apartment K.Narayanapura, Next to Christu
jayanthi College, Koramangala, Bengalore.
15. In order to prove this fact plaintiff is has
produced the original sale deed got marked at Ex.P.1.
The learned counsel for the defendant confronted
signatures of the defendant obtained on the vakalath.
The same is marked at Ex.C.1. & C.1(a) PW1 stated
that there is difference in signature found on sale
agreement and Ex.P.1(a). Therefore, in this case attempt
is made by the defendant to refer the Ex.P.1 to refer the
Ex.P.1 for hand writing expert to find out the signatures
found on Ex.P.1 are not belongs to him. Therefore this
court has exercised its prior inform U/s.72 of Bharatiya
Nagarika Sanhita-2023.
16. By using the said power this court compared
the signature of the Ex.P.11 with Ex.C.1(a), Cheque
14 O.S.No.2759/2018
Ex.P.3 and written statement. By compring these
signatures, there is no difference in the signatures found
on the Ex.C.1(a) and signatures of defendant found on
Ex.P.1. By considering the recitals of the Ex.P.11 it
reveals that the defendant being a developer of the
Bejith Classic Apartment agreed to sell the B schedule
property i.e., Flat No.108, 1 st floor. By considering all
these aspects I am of the opinion that the plaintiff has
proved that the defendant has agreed to sell the flat
No.108 situated in the first floor, of Bejith Classic
Apartment in favour of the plaintiff and his daughter.
Accordingly, Issue No.1 is answered in the
Affirmative.
17. Issue No.2:-
The plaintiff contended that he has paid the advance
sale consideration amount of Rs.17.,50,000/-. In the
course of cross-examination he has stated that he has
paid Rs.10/- Lakhs through two chques and cash. This
15 O.S.No.2759/2018aspect reveals from Ex.P.11 to 14. This clearly discloses
that the plaintiff has paid advance sale consideration
amount of Rs.17.50,000/- to the defendant at the time
of entering into sale agreement with the defendant. This
fact reveals from Ex.P.1. Therefore, it is held that the
plaintiff has successfully prove regarding payment of the
advance sale consideration amount. Accordingly, Issue
No.2 is answered in the Affirmative.
18. Issue No.3:-
The plaintiff has filed this suit in the year 2018. He
specifically pleaded that after execution of the agreement
of sale, the defendant sold the flat No.108, situated in
the first floor in favour of the 3 rd person. During cross-
examination PW1 stated that the defendant sold the
property in favour of the 3rd person in the year 2020. By
considering the subsequent event, it clearly discloses
that the defendant without executing the sale deed in
favour of the plaintiff pertaining to the flat No.108 he
16 O.S.No.2759/2018has soled the said property in favour of the 3rd person.
Accordingly, Issue No.3 is answered in the Affirmative.
19. Issues No.4 & 5:-
in order to repay the advance sale consideration amount
with interest, the defendant issued chque bg.No. 789908
for Rs.19/- Lakhs. In order establish this fact, the said
cheque is produced before the court and got marked as
Ex.P.3. The said Ex.P.3 is presented though the bank for
3 times, this fact reveals from the Bank endorsements
Ex.P.4, 8 and 9 and the said cheque returned as funds
insufficient. Later on, the plaintiff got issued statutory
notice on 23.04.2016 as per Ex.P.10. The plaintiff has
filed this suit in the year 2018 for recovery of money. By
considering all these aspects it clearly discloses that the
defendant issued cheque Ex.P.3 for repayment of the
advance sale consideration amount along with interest,
same is dishonoured due to funds insufficient in the
17 O.S.No.2759/2018account of the defendant. Accordingly, Issue No.4 and
5 is answered in the Affirmative.
20. Issue No.6:-
The plaintiff contended that the defendant paid
Rs.5/- Lakhs through cheque bg.No.299749 towards the
part payment of the cheque amount of Rs.19/-Lakhs. In
order to prove the said fact, the plaintiff has produced
the bank statement got marked at Ex.P.14. According to
the recitals of this document, on 18.07.2017 the
defendant paid an amount of Rs.5/- Lakhs through
cheque bg.No.299749. Therefore, Issue No.6 is answered
in the Affirmative.
21. Issue No.7:-
The defendant contended that the suit of the plaintiff is
barred by limitation. According to the recitals of Ex.P.1
plaintiff and defendant entered into sale agreement on
27.06.2015. As per the recitals of this document, the
18 O.S.No.2759/2018defendant requires to execute the sale deed within 3
months from the date of the sale agreement. He has
failed to executed the sale deed. The plaintiff has filed
this suit on 11.04.2018. By considering the date
mentioned in the sale agreement and date of institution
of the suit the plaintiff has filed this suit within 3
months i.e., on 27.06.2015. Moreover, the defendant
has issued cheque Ex.P.3 for repayment of the advance
sale consideration along with interest on 27.02.2016.
Another important fact is that, the defendant has paid
Rs.5/- Lakhs on 18.07.2017. In view of Section 18 of
the Limitation Act, the suit of the plaintiff is well within
time. Accordingly, Issue No.7 is answered in the
Negative.
22. Issue No.8:-
In this case, the plaintiff has produced the sale
agreement and cheque Ex.P.3 and also the defendant
paid Rs.5/- Lakhs on 18.07.2017. In view of the section
19 O.S.No.2759/2018118 and 139 of the N.I Act the defendant has issued the
cheque Ex.P.3 towards the repayment of the advance
sale consideration. The defendant has taken specific
contention that the daughter of the plaintiff has
answered validly. In this case, the plaintiff has field this
suit for recovery of money not for Specific Performance
of Contract. The defendant has taken another interesting
contention that the daughter of the plaintiff purchased
the flat in Bejith Classic Apartment. He has rightly
answered that his daughter has purchased the said flat
from the owners of the site not from the builders. The
recitals of the Ex.P.1 discloses that the present
defendant is a builder not an owner. Therefore, Ex.P.1
sale agreement is not pertaining to the flat purchased by
the daughter of the plaintive through its owner.
Considering all theses aspects I am of the opinion that
the plaintiff is entitled for recovery of Rs.21,15,938/-
with simple interest at 6% from the date of institution of
20 O.S.No.2759/2018
this suit. Accordingly, Issue No.8 is answered in the
Affirmative.
23. Issue No.9:-
In view of my findings on above issues, I proceed
to pass the following:
ORDER
The suit of the plaintiff is
hereby decreed with costs.
The defendant is hereby directed to
pay entire claim amount of
Rs.21,15,938/- with simple interest
at the rate of 6% p.a from the date
of institution of the suit, till
realization of the entire amount.
(Typed by the Stenographer on my dictation, the transcript revised and then pro-
nounced by me in open court on this the 25th day of January, 2025)irappanna Digitally signed
by irappanna
(Sri. I. P. Pavadi
Naik) Naik
Pavadi
LXIII ADDL.CITY CIVIL & SESSIONS
Date: 2025.01.25
Naik
JUDGE (CCH-64), BENGALURU CITY.
16:36:19 +0530
21 O.S.No.2759/2018
ANNEXURE
1. List of witnesses examined for the plaintiff:-
PW1 : Gopalakrishna Panicker
2. List of documents marked for the plaintiff :
Ex.P1 : Agreement of sale
Ex.P2 : Form No.15
Ex.P3 : Cheque
Ex.P4 : Bank endorsement
Ex.P5 to 7 : Bank Challen
Ex.P8 & 9 : 2 endorsements
Ex.P10 : Office copy of Notice
Ex.P10(a) : Receipts
Ex.P10(b) : Receipts
Ex.P10(c) : Receipts
Ex.P.11 : Pass book of SBI
Ex.P12 : Pass book of Vijaya Bank.
Ex.P.13 : Pass book of Vijaya Bank
Ex.P.14 : First page of Pass book
22 O.S.No.2759/2018
3. List of witnesses examined for the defendant:
NIL
4. List of documents marked for the defendant:
NIL
5. List of documents marked on behalf:
Ex.C.1 : Vakalath of Defendant
(Sri. I. P. Naik)
LXIII ADDL.CITY CIVIL & SESSIONS
JUDGE (CCH-64), BENGALURU CITY.
23 O.S.No.2759/2018
(order typed vide separate sheet)
ORDER
The suit of the plaintiff is
hereby decreed with costs.
The defendant is hereby di-
rected to pay entire claim
amount of Rs.21,15,938/-
with simple interest at the rate
of 6% p.a from the date of in-
stitution of the suit, till
realization of the entire
amount.
(Sri. I. P. Naik)
LXIII ACCL & SJ (CCH-64),
BENGALURU CITY.
24 O.S.No.2759/2018
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