Bangalore District Court
Vijay L Rathod vs Papaiah Papaiah V on 13 June, 2025
KABC010150242008
IN THE COURT OF THE XLIII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.44), AT BENGALURU
PRESENT : SRI.BHAT MANJUNATH NARAYAN,
B.Com, LL.B.(Spl.)
XLIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU .
DATED: THIS THE 13 th DAY OF JUNE, 2025
O.S.No.6663 of 2008
clubbed with O.S.No.4856 of 2006
PARTIES IN O.S.NO.6663 OF 2008
Plaintiffs: 1. Mr. Vijay L. Rathod,
S/o Lakshman Rathod,
Aged about 34 years,
2. Mr. Walchand,
S/o Seertharam,
Aged about 62 years
Both are residing at
No.414, 4 th A Cross,
HRBR Layout, II Block,
Kalyanagar, Bengaluru.
(By Sri. M.N.B., Advocate)
2 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
-VS-
Defendants: 1. Sri. Papaiah @ V. Papaiah,
S/o Late Venkataramanappa
@Venkataramaiah @
Ramaswamy,
Aged about 70 years
2. Sri. R. Rudrappa,
S/o Late Ramaiah Reddy @
Peddanna @ Ramaswamy,
Aged about 75 years,
Since deceased by his LR's
2(a) Smt. Lakshmamma,
W/o Late Rudrappa,
Aged about 75 years
2(b) Sri. R. Narasimhamurthy
S/o Late R. Rudrappa,
Aged about 48 years
2(c) Sri. R. Venu Gopal,
S/o Late R. Rudrappa,
Aged about 37 years
2(d) Smt. R. Sudha
D/o Late R. Rudrappa
Aged about 42 years
2(e) Smt. R. Mynavathi
D/o Late R. Rudrappa
Aged about 40 years
2(f) Smt. R. Latha
3 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
D/o Late R. Rudrappa
Aged about 38 years
All are residing at
No.23, 14 th Main Road, 3 rd Block
East, Jayanagar, Bengaluru-11.
3. Sri. Krishnappa,
S/o Late Ramaiah Reddy @
Peddanna @ Ramaswamy,
Aged about 72 years
Since deceased by his LR's
3(a) Sri. K. Chandra,
S/o Late Krishnappa,
Aged about 47 years
3(b) Sri. K. Mohan Kumar,
S/o Late Krishnappa
Aged about 45 years
3(c) Sri. K. Narasimhamurthy,
S/o Late Krishnappa,
Aged about 42 years
3(d) Sri. K. Manju,
S/o Late Krishnappa,
Aged about 39 years
3(e) Smt. K. Jaya,
D/o Late Krishnappa,
Aged about 51 years
3(f) Smt. K. Hemavathi
4 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
D/o Late Krishnappa,
Aged about 49 years
4. Sri. N. Narayana
S/o Late Narasimhaiah,
Aged about 60 years
5. Sri. N. Nagaraja
S/o Late Narasimhaiah
Aged about 56 years
6. Sri. N. Ramanath,
S/o Late Narasimhaiah
Aged about 51 years
7. Sri. N. Ananda,
S/o Late Narasimhaiah,
Aged about 43 years
8. Sri. N. Giri,
S/o Late Narasimhaiah,
Aged about 40 years,
9. Smt. Durgamma,
W/o Late G.N. Srinivasa
Aged about 42 years
All are residing at
No.25, Old 16 th A Main Road,
III Block, East Jayanagar,
Bengaluru City.
(D1 to 8-M.R.R.,- Advocates)
5 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
PARTIES IN O.S.NO.4856 OF 2006
Plaintiffs: 1. Mr. Vijay L. Rathod,
S/o Lakshman Rathod,
Aged about 32 years,
2. Mr. Walchand,
S/o Seertharam,
Aged about 60 years
Both are residing at
No.414, 4 th A Cross,
HRBR Layout, II Block,
Kalyanagar, Bengaluru.
(By Sri.M.N.N., Advocate)
Defendants 1. Sri. Papaiah @ V. Papaiah,
S/o Late Venkataramanappa
@Venkataramaiah @
Ramaswamy,
Aged about 68 years
2. Sri. V. Gangadhara,
S/o Papaiah,
Aged about 41 years,
3. Sri. V. Manu,
S/o Papaiah,
Aged about 39 years,
4. Sri. R. Rudrappa,
6 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
S/o Late Ramaiah Reddy @
Peddanna @ Ramaswamy,
Aged about 73 years,
Since deceased by his LR's
4(a) Smt. Lakshmamma,
W/o Late Rudrappa,
Aged about 75 years
4(b) Smt. R. Sudha,
D/o Late R. Rudrappa,
Aged about 42 years
4(c) Smt. R. Mynavathi,
D/o Late R. Rudrappa,
Aged about 40 years
4(d) Smt. R. Latha
D/o Late R. Rudrappa
Aged about 38 years
All are residing at
No.23, 14 th Main Road, 3 rd
Block East, Jayanagar,
Bengaluru-11.
5. Sri. R. Lokesha,
S/o Rudrappa,
Aged about 51 years,
6. Sri. R. Srinivas,
S/o Rudrappa,
Aged about 49 years,
7 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
7. Sri. R. Narasimha Murthy,
S/o Rudrappa,
Aged about 47 years,
8.
Sri. R. Venu,
S/o Rudrappa
Aged about 43 years,
9. Sri. Krishnappa,
S/o Late Ramaiah Reddy @
Peddanna @ Ramaswamy,
Aged about 70 years
Since deceased by his LR's
9(a) Smt. K. Jaya,
D/o Late Krishnappa,
Aged about 51 years
9(b) Smt. K. Hemavathi
D/o Late Krishnappa,
All are residing at
No.23, 14 th Main Road, 3 rd
Block East, Jayanagar,
Bengaluru-560 011.
10. Sri.Chandra,
S/o Krishnappa,
Aged about 51 years
11. Sri. Mohan,
S/o Krishnappa
Aged about 49 years
8 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
12. Sri. Narasimha,
S/o Krishnappa,
Aged about 41 years
13. Sri. Manjunath,
S/o Krishnappa,
Aged about 41 years,
14. Sri. N. Nagaraja
S/o Late Narasimhaiah
Aged about 54 years
15. Sri. N. Venkatesha,
S/o Nagaraja,
Aged about 57 years,
16. Sri. N. Ramanatha,
S/o Late Narasimhaiah
Aged about 49 years
17. Sri. Narasimha Murthy,
S/o Ramanatha,
Aged about 25 years
18. Sri. N. Ananda,
S/o Late Narasimhaiah,
Aged about 41 years
19. Master Hari,
Aged about 11 years,
S/o N. Ananda
20. Kumari Devi
Aged about 13 years,
9 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
D/o N. Ananda
Since Minors represented by
their natural guardian and
father Sri. N. Ananda
21. Sri. N. Giri,
S/o Late Narasimhaiah,
Aged about 38 years,
22. Sri. N. Narayana
S/o Late Narasimhaiah,
Aged about 56 years
23. Sri. N. Nataraja,
S/o Narayana
Aged about 29 years,
24. Sri. Dhanaraja
S/o Narayana,
Aged about 27 years,
All are residing at
No.23, Sy.No.79/5B,
14 th Main Road, Jayanagar
East,
Bengaluru City.
25. Smt. Durgamma,
W/o Late G.N. Srinivasa
Aged about 40 years,
All are residing at
No.25, Old 16 th A Main Road,
10 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
III Block, East Jayanagar,
Bengaluru City.
26. Smt. N. Lakshmi,
W/o Sri.N. Sai Prasad,
Aged about 44 years,
R/at Door No.8-291, Courted
Ananthapur, A.P.
27. N. Kariyappa,
S/o Nanjeppa,
Aged about 55 years,
R/o Flat No.F.R.8,
S.V.R. Apartments, 1 st Road,
Ananthapur, A.P.,
28. Sri. A.S. Sathyanarayana,
S/o Venkataratnam,
Aged about 43 years
R/at No.303, Meenakshi Park
side, NO.97, Srinagar Colony,
Hyderabad.
29. Sr. M.B. Chander,
S/o Bhadraiah,
Aged about 54 years,
12-2-422, Mehdipatnam,
Hyderabad.
30. Sri. K. Nithyananda Shetty,
S/o Late N.S. Shetty,
Aged about 54 years,
Residing at No.97, 2 nd Main,
11 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
M.L.A. Layout, R.T. Nagar,
Bengaluru-560 032.
31. Dr. A. Krishna Murthy,
S/o Late Chalapathy Rao,
Aged about 66 years
Management Consultant,
R/o No.106, Shanthi Garden,
A. Nacharam,
Raghavendranagar,
Hyderabad-500 076.
(D1 to 4, 9, 14 to 17-B.B.A.,
D6- dead., D7, 8, 12, 13 to 26,
19, 20 & 15, 10, 11, 18, 25,
27-exparte., D4(a) to (f)-J.S.R.,
D21 to 24-M.R.R., D28 to 31-
A.K., -Advocates)
Date of Institution of the : 22.09.2008
suit O.S.No.6663 of 2008
Date of Institution of the : 09.06.2006
suit O.S.No.4856 of 2006
Nature of the Suit in : Specific performance
O.S.No.6663 of 2008
Nature of the Suit in Declaration & injunction
O.S.No.4856 of 2006
Date of commencement : 03.06.2011
of recording of the
evidence
12 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
Date on which the : 13.06.2025
Judgment was
pronounced
Total Duration : Years Months Days
O.S.No.6663 of 2008 16 08 22
Total Duration Years Months Days
O.S.No.4856 of 2006 19 00 04
(BHAT MANJUNATH NARAYAN)
XLIII Addl. City Civil & Sessions Judge,
Bengaluru
J U D G M E N T
That, O.S.No.6663 of 2008 is filed by plaintiffs
seeking the relief of specific performance of agreement
of sale dated 10.11.1997 & supplementary sale
agreement dated 15.01.1999, and for consequential
relief of perpetual injunction restraining the defendants
from alienating the suit schedule property. In the
alternatively plaintiffs have sought relief of recovery of
advance amount plus damages to the tune of
13 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
₹.1,68,00,000/- with interest at the rate of 24% per
annum.
O.S.No.4856 of 2006 is filed by the plaintiffs
seeking the relief of perpetual injunction restraining
the defendants from alienating the property and also
to declare that agreement of sale between defendant
NO.1 to 25 and 26 to 31 are null and void, not binding
upon the plaintiffs.
The suit property involved in both the suits are
described in the schedule as under:
SCHEDULE
All that piece and parcel of the entire property bearing
Site No.23 in Sy.NO.79/5-B situated at Old No.16th A
Main, New 14 th Main Road, III Block, East Jayanagar,
Bengaluru City, Measuring 240′ X 200′ and bounded on:
East by: Premises bearing NO.14/6
13/9, and private properties
West: Road,
North by: Premises bearing No.381
20 and private properties
14 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
South by: Vacant site belonging to
Sankaranarayana and
Vishwesariah with old tile roofed
buildings
2. The factual conspectus of the case, to the extent relevant for
adjudication of the lis, is set out below:-
Pleadings in O.S.No.6663 of 2008
2.1. That, plaintiffs submit that defendants are
the absolute owners in possession of suit Site NO.23
formed in Sy.No.79/5-B situated at 14 th Main
Road(new), 3 rd Block, East Jayanagar, Bengaluru
measuring east – west 240 feet, north – south 200 feet.
The plaintiffs submit that on 10.11.1997 the
defendants have offered to sell the suit schedule
property to the 1 st plaintiff at rate of ₹.600/- per Square
feet and 1 st plaintiff has agreed to purchase the
schedule property. Accordingly, on 10.11.1997 an
agreement of sale came to be executed by defendant
No.4 who is the Power of Attorney holder of other
15 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
defendants in favour of 1 st plaintiff. It is the specific
case of the plaintiffs that as on the date of execution of
agreement of sale dated 10.11.1997 4 th defendant has
received ₹.2,00,000/- as advance consideration
amount.
2.2. The plaintiffs submit that the defendants
have acquired right in respect of schedule property by
virtue of order dated 15.04.1982 passed in
P&SC.No.147 of 1980. The plaintiffs submit that the
defendants have represented that one Shankar Reddy
claiming to be the owner of Site NO.23/1 to 23/11 in
Sy.No.79/4, by trespassing into schedule property had
illegally put up an unauthorized residential apartment.
The steps have to be taken to initiate the process to
recover the land but due to lack of funds they are
unable to initiate further legal proceedings to remove
the trespassers and therefore, the defendants have
16 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
agreed to sell the property to meet family necessities,
legal necessities & as they required immediate fund to
initiate legal proceedings. As per sale agreement
dated 10.11.1997 1 st plaintiff has agreed to pay
balance consideration amount at the time of
registration of Sale Deed. The performance of
execution of regular Sale Deed was fixed within 6
months from the date of demolishing the structure by
obtaining possession of the property. It is further
agreed under agreement of sale that before execution
of registered Sale Deed, the balance consideration
amount is required to be paid by obtaining urban land
ceiling permission/ exemption out of their own cost and
they will execute the registered Sale Deed with clear
and marketable title in favour of the 1 st plaintiff.
2.3. Plaintiff submits that subsequent to
agreement of sale M. Shankar Reddy and others have
17 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
filed suit at O.S.No.2273 of 1998 against Government
of Karnataka, Special Deputy Commissioner Bengaluru,
Corporation of City of Bengaluru, Assistant Revenue
Offi cer, Executive Engineer of BCC, one
Doddathayamma, A Pillamma, defendants herein, M/s.
M.V.R. Enterprises, M. Ramachandra and
Subramanyabharathi to declare that Sy.No.78/5-B was
subject matter of earlier O.S.No.427 of 1964 and for
perpetual injunction. It was contended by M. Shankar
Reddy plaintiff of O.S.No.2273 of 1998 that one Togur
Ramaiah Reddy owned property measuring east – west
230 feet, north – south 200 feet, who sold the property
subject matter of the suit under Sale Deed dated
27.12.1937 through court auction in favour of
Chinnappa and subsequently property was transferred
to different purchasers. Ultimately late Muniyappa
Reddy purchased the property under registered Sale
Deed dated 05.08.1961 through whom M. Shankar
18 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
Reddy and others claimed right, title over the property
bearing Sy.No.79/5-B. Plaintiffs submit that after
hearing both the parties court was pleased to allow
I.A.No.2 to 4 and rejected the plaint vide order dated
10.11.1999 on the ground that plaint does not disclose
any cause of action. Aggrieved by the said order M.
Shankar Reddy and others have preferred Regular First
Appeal before Hon’ble High Court of Karnataka at RFA
NO.147 of 2000 C/w 148 of 2000 and 149 of 2000.
2.4. It is the specific case of the plaintiffs that
after execution of agreement of sale was also 1 st
plaintiff was making payment to the vendors on
installments as detailed in agreement of sale.
Defendants through their Power of Attorney i.e.,
defendant No.4 have received further installments with
effect from 23.10.1997 to 08.01.1999 to the tune of
₹.19,59,000/-. The plaintiffs submit that defendant
19 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
no.4 has duly acknowledged the receipt of the
consideration amount. Plaintiffs submit that in-spite of
payment of huge consideration there was no progress
in the pending suits. The 1 st plaintiff was under the
opinion that he will pay remaining consideration
amount only at the time of registration of Sale Deeds.
On 10.01.1999 defendants have approached the 1 st
plaintiff and requested for further advance amount and
1 st plaintiff having already paid huge amount has
rejected the request and informed them that only after
adjudication of the pending suit he will think of making
further payment to the defendants. Thereafter, a
meeting was held wherein plaintiff No.1 and 2 herein
after prolonged discussion considering the immediate
need of funds, have agreed to give further amount but
the sale consideration is reduced from ₹.600/- per
square feet to ₹.350 per square feet. Accordingly, both
plaintiff No.1 and 2 together have paid an amount of
20 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
₹.10,00,000/- on 12.01.1999 to the defendants and an
supplementary agreement of sale came to be executed
on 15.01.1999. The plaintiffs submit that on
12.02.1999 plaintiffs have paid an amount of
₹.7,50,000/- to the defendants and on 12.01.1999 only
defendant No.4 has acknowledged receipt of
₹.10,00,000/- under supplementary sale agreement
through separate receipt. Even in supplementary
agreement of sale it was agreed that sale transaction
has to be completed soon after completion of all the
litigations in respect of schedule property. It is further
averred in the plaint that in the supplementary
agreement it was agreed that in the event of an offer
from 3 rd party for the present market value, both
plaintiff and defendants have agreed to dispose the
same jointly by sharing the sale proceeds equally. It is
further agreed that in the event of development by
constructing residential apartment, same shall be
21 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
conveyed to the prospective third party buyers and
sale proceeds shall be shared equally. It is specific
case of the plaintiffs that defendants have assured the
plaintiffs that they will not enter into any agreement of
sale with third parties and will not mortgage or pledge
the schedule property without written consent of the
plaintiffs.
2.5. Plaintiffs submit that with the hope of
securing the schedule property plaintiffs were waiting
for the disposal of litigation before Hon’ble High Court
of Karnataka and other courts. The plaintiffs were
always ready & willing to complete the transaction by
paying balance consideration amount but defendants
have not came forward to execute the Sale Deed even
after lapse of more than two and half years after
supplementary agreement of sale.
22 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
2.6. The plaintiffs further submit that they have
made further payment of advance amount to the
defendants as under:
Rs. Date Cheque bearing NO.
Rs.25,000/- 02.07.2005 76414
Rs.50,000/- 03.08.2005 76416
Rs,50,000/- 03.08.2005 76418
Rs.20,000/- 24.09.2005
Rs.12,000/- 19.12.2005 (HDFC bank)0100576
2.7 The plaintiffs submit that at the request of
defendant No.4 following payments were made to M.
Raja Gopal the advocate appearing for the defendant
No.4 in the litigation pending for consideration.
Rs. Date Cheque bearing NO.
Rs.25,000/- 18.06.2005 76413
Rs.50,000/- 26.07.2005 76420
Rs.2,32,000/- 19.12.2005
23 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
Therefore, plaintiffs submit that defendants have
received an amount of ₹.39,41,000/- up to 19.12.2005
towards part sale consideration amount.
2.8. It is the specific case of the plaintiffs that
they came to know that defendants have executed an
agreement of sale in favour of one Dr. A. Krishna
Murthy through Power of Attorney holder defendant
No.4 and also executed registered Mortgage deed in
contravention to the terms agreed under
supplementary agreement on 15.01.1999. Immediately
plaintiffs approached the concerned Sub-registrar
offi cer and got confirmed the same. It is submitted by
the plaintiffs that defendants have agreed to sell the
suit schedule property to Dr. A. Krishnamurthy for a
consideration amount of ₹.3,25,00,000/- at the rate of
₹.650/- per square feet vide agreement of sale dated
13.10.2003 and on 26.08.2003 defendant No.4 has
24 O.S.No.6663 of 2008 clubbed
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entered into a registered Mortgage deed with Dr. A.
Krishnamurthy in respect of schedule property. The
plaintiffs submit that defendant No.4 suppressing the
fact of registration of agreement of sale and Mortgage
deed has received further advance amount of
₹.2,32,000/- through cheque as per the Passbook and
challan produced by the plaintiff. The conduct of
defendant No.4 in executing sale agreement, Mortgage
deed and receiving advance sale consideration amount
from the plaintiffs subsequent to the execution of
above documents is nothing but a criminal act.
2.9 The plaintiffs further claim that they also came
to know that subsequent to entering into agreement of
sale with plaintiffs, defendant No.4 has also entered
into an agreement of sale with one Smt. N. Lakshmi
W/o N. Sai Prasad, N. Kariyappa S/o Nanjappa, A.S.
Sathyanarayana S/o Venkata Rathnam, M.B. Chandar
25 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
S/o Badraiah and Nithyananda Shetty S/o N.S. Shetty
by suppressing agreement of sale with plaintiffs. It is
submitted by the plaintiffs that defendants have
entered into several transactions suppressing the facts
only to wrongfully gain taking undue advantage of
pending litigation with one M. Shankar Reddy and
others. Defendants and their children have no rights
to enter into any transaction to alienate the schedule
property disregarding the agreement of sale entered
with the plaintiffs. Therefore, the plaintiffs claim that
they have filed O.S.No.4856 of 2006 seeking relief of
perpetual injunction.
2.10 It is submitted by the plaintiffs that as per
agreement of sale the regular Sale Deed is required to
be executed after disposal of all the pending litigation
and cause of action to institute suit for specific
performance is not available when O.S.No.4856 of 2006
26 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
is filed by the plaintiffs. Plaintiffs submit that on
09.06.2008 8 th defendant disclosed that Regular First
Appeal in RFA No.147, 148 and 149 of 2000 filed by
Shankar Reddy and others have been disposed on
21.01.2008. Thereafter, plaintiffs have obtained
certified copies which shows that first appeals were
dismissed on 21.01.2008. The plaintiffs submit that
after obtaining certified copies of judgment in RFA,
they tried to approach the defendants to express their
readiness & willingness to pay balance consideration
amount to obtain registered Sale Deed. Since
defendants have avoided the plaintiffs, they got issued
a legal notice on 30.06.2008 calling upon the
defendants to execute the registered Sale Deed and
receive balance consideration amount from the
plaintiffs. Plaintiffs further submit that on 08.07.2008
4 th defendant has sent reply through his advocate
stating that he is not having copy of alleged agreement
27 O.S.No.6663 of 2008 clubbed
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of sale dated 10.11.1997 and called to send the copies
and accordingly, on 14.07.2008 the copy of agreement
was sent along with the notice. Thereafter, on
04.08.2008 defendants have given untenable reply
denying the transaction and with false allegations and
have refused to execute the registered Sale Deed. The
plaintiffs submit that they have agreed to purchase the
schedule property measuring 200X240 at ₹.350/- per
square feet and paid ₹.39,41,000/-. The plaintiffs
contended that 4 th defendant who represented all other
defendants as Power of Attorney holder has received a
consideration amount from the plaintiffs. Since,
defendants have entered into agreements to deprive
the plaintiffs from enjoying their right conferred under
Agreement of sale, the plaintiffs have filed suit for
declaration and perpetual injunction at O.S.No.4856 of
2006. The plaintiffs submit that defendants are bound
to sell the schedule property in favour of the plaintiffs
28 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
in accordance with terms and conditions of agreement
of sale and plaintiffs are willing to perform their part of
the contract.
2.11 It is specifically pleaded that if this court
come to the conclusion that decree for specific
performance cannot be granted then plaintiffs are
entitled for refund of ₹.39,41,000/- with interest at the
rate of 24% per annum. The plaintiffs submit that it is
a common knowledge that there is an increase in price
of land every year and if property is sold then it will
fetch not less than ₹.24,00,00,000/- as on today. The
plaintiffs submit that they will have to pay more than
₹.22,32,00,000/- more for the same property if it is
available. It is submitted by the plaintiffs that it is
impossible to secure an alternative suitable property
and plaintiffs will have to incur loss of more than
₹.22,32,00,000/- and hence damages is required to be
29 O.S.No.6663 of 2008 clubbed
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ascertained by holding enquiry under order XX Rule 12
of CPC. The plaintiffs have contended that the
defendants are liable to pay an amount of
₹.39,41,000/- being advance sale consideration
amount, an amount of ₹.89,38,000/- towards interest
from 23.10.1997 upto 15.09.2008 at the rate of 24% an
advance consideration amount and liquidated damages
equivalent to the advance sale consideration totally an
amount of ₹.1,68,00,000/- is due from the defendants if
specific performance is not granted. Plaintiffs have
contended that the defendant No.1 to 9 and others
have entered into several transaction with various third
parties and O.S.No.48546 of 2006 is filed seeking the
declaratory relief stating that subsequent agreement of
sale entered are not binding upon the plaintiffs.
Therefore, the plaintiffs have contended that they are
before this court seeking the relief of enforcement of
agreement of sale dated 10.11.1997 and
30 O.S.No.6663 of 2008 clubbed
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supplementary agreement of sale dated 15.01.1999
directing the defendants to convey the schedule
property in favour of plaintiffs by receiving balance
consideration amount. In the alternatively the plaintiffs
have prayed that defendants be directed to pay an
amount of ₹.1,68,00,000/- with interest at the rate of
24% per annum.
3. In response to summons issued, the
defendants have appeared the contested suit by filing
the written statement. The defendant No.4 has filed
written statement. The gist of statement is as under :-
3.1. The defendant No.4 has admitted that
defendant No.1 to 9 are the owners of the schedule
property but he has denied that they have acquired
right through order passed by this court in P &
SC.No.147 of 1980 dated 15.04.1982. The defendant
31 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006No.4 has contended that grant of succession certificate
is wrongly construed as a source of acquisition of title.
The defendant No.4 has denied other allegations
regarding execution of agreement of sale dated
10.11.1997, receipt of advance sale consideration
amount of ₹.2,00,000/-. Defendant No.4 has admitted
that one Shankar Reddy and his companion have
trespassed into suit land and constructed building. It is
submitted by defendant No.4 that Shankar Reddy and
his companion were parted from possession during
1981-82 itself after direction from City Corporation.
Even Corporation has authorized the defendants to
demolish the unauthorized construction, but for various
reasons as well as pendency of some litigation, the
order of the Corporation is not yet executed by
defendants. The defendant no.4 has admitted that M.
Shankar Reddy filed a suit at O.S.No.2273 of 1998
32 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
which came to be dismissed and filing of RFA which was
also dismissed by Hon’ble High Court of Karnataka.
3.2. Defendant No.4 has denied that he has
received an amount of ₹.19,59,000/- from 23.10.1997
to 08.01.1999 in installments and contended that the
endorsement in the alleged agreement is fabricated,
forged manipulated by the plaintiffs. The defendant
No.4 has also denied that on 10.01.1999 he demanded
further amount under Agreement of sale and by
reducing the sale price from ₹.600 per square feet to
350 per sq.ft., he has executed supplementary
agreement on 15.01.1999 & received 10 lakh rupees.
It is also denied that on 12.02.1999 defendant has
received ₹.7,50,000/- from plaintiffs as narrated in the
plaint. It is submitted by the defendant No.4 that
certain payment referred in para No.12 of the plaint are
unconnected with the suit property which are only the
33 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
financial assistant extended by plaintiffs at the
intervention of one Neelakanta Nayak employee of
High Court, Lakshman Rathod is given about 3 to 5
lakh to the defendant No.4 for his personal use which is
nothing to do with the suit schedule property.
Reference of payment made to Rajagopal advocate is
not relating into suit schedule property, but that was in
relation to other property situated at Basaveshwara
Nagar. The defendant NO.4 submits that plaintiffs are
making false and incorrect representation stating that
defendants have received an amount of ₹.39,41,000/-
as on 19.12.2005.
3.3. The defendant No.4 submits that there are
some transaction between defendants &
Krishnamurthy and plaintiffs have no authority to
question the said transaction. It is submitted by
defendant No.4 that the suit filed by the Krishnamurthy
34 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
has been dismissed stating that same is badly framed.
The defendant No.4 submits that valuation made by
plaintiffs in the suit is improper, inadequate and
therefore, the subject matter is required to be valued
properly & based on that court fee is also required to
be paid by the plaintiffs. The defendant No.4 submits
that plaintiffs are seeking specific performance of
agreement of sale dated 10.11.1997 & supplementary
sale agreement dated 15.01.1999 and if valuation slip
is perused then court fee is required to be computed on
the amount of consideration shown in the document. If
agreement of sale dated 10.11.1997 and
supplementary agreement of sale dated 15.1.1999 are
considered they are distinct & independent, the later
agreement is supplementary to the earlier agreement
and even prayer column both the agreements are
sought to be enforced and therefore, consideration
shown in the agreement being totally different court
35 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
fee paid is improper, inappropriate and as such,
plaintiffs cannot seek the enforcement of two
agreements.
3.4. It is submitted by defendant No.4 that
plaintiffs are guilty of suppression of material facts. It
is submitted by defendant No.4 that before instituting
the suit plaintiffs have instituted another suit for bare
injunction at O.S.No.4856 of 2006 which is still pending
for consideration. The defendant has contended that in
the said suit filing of affi davit by plaintiffs in
O.S.No.5544 of 1996 is suppressed. The defendant
NO.4 submits that the fact of filing affi davit by
plaintiffs in O.S.No.5544 of 1996 was brought to the
knowledge of the plaintiffs by filing written statement
in O.S.no.4856 and 2006 then also plaintiffs have
suppressed the material facts. The plaintiffs have filed
I.A.No.19 in O.S.No.5544 of 1996 for withdrawing of
36 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
affi davit which was declined by detailed order dated
16.11.2006. This facts are not pleaded and material
facts have been suppressed. The defendant No.4
submits that by filing affi davit in O.S.No.5544 of 1996
the plaintiffs have admitted that there is no transaction
between plaintiffs & defendants and attempt is made
by filing an application to withdraw the affi davit, which
is rejected by this court.
3.5. The defendant No.4 has denied the execution
of agreement of sale dated 10.11.1997 and also receipt
of consideration amount stated. Defendant No.4 has
also denied that supplementary agreement was
executed agreeing to reduce the sale consideration
amount from ₹.600 square feet to ₹.350 square feet. It
is contended by the defendant No.4 that it is stated
that on 15.01.1999 one Papaiah and others have
executed an agreement of sale but 9 th defendant
37 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
Durgamma has not signed. There is a reference of
spending ₹.8 lakhs by the plaintiffs and sale price
reduced to ₹.350/- per sq. feet and reason for reducing
the sale price was nowhere forthcoming in the recitals
of the agreement. The defendant NO.4 has denied that
on 12.02.1999 he executed a receipt of receiving
₹.7,50,000/-. The defendant No.4 has denied the other
allegations and prayed that the suit be dismissed with
cost.
3.6. Other contesting defendants have filed
adopted the written statement of defendant NO.4.
4. Brief facts of the case pleaded in
O.S.No.4856 of 2006. The plaintiffs have pleaded
regarding agreement of sale dated 10.11.1997 and
supplementary agreement of sale 15.01.1999 as stated
above. The plaintiffs have contended that they came
38 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
to know that defendant No.1 to 24 have entered into an
agreement of sale with defendant No.31 through Power
of Attorney holder, defendant No.22-(def No.4 in
O.S.No.6663 of 2008). The plaintiffs have contended
that the agreement of sale entered between defendant
No.1 to 25 and 26 to 31 are not binding them and the
defendants are required to be restrained from
alienating the property.
5. In O.S.No.4856 of 2006 also defendant No.1,
9, 14, 16, 21 and 22 have filed written statement which
is similar to that of written statement filed in
O.S.No.6663 of 2008. Defendant No.31 Dr. A.
Krishnamurthy has filed written statement denying the
plaint allegations and contended that defendant No.1
to 25 through their Power of Attorney holder defendant
NO.22 entered into registered agreement of sale with
defendant No.31 agreeing to sell the schedule property
39 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
for consideration amount of ₹.650/- per square feet. It
is also contended that a Mortgage deed is executed by
defendant No.22 in favour of defendant No.31 on
26.08.2003. Therefore, defendant No.31 contended
that he has got every right to get the Sale Deed
executed as per agreement of sale dated 10.10.2003
and hence, he prayed that suit be dismissed against
them.
6. By considering pleadings and documents
produced by the parties, my learned predecessor in
offi ce had framed the following issues :-
Issues framed in O.S.No.6663 of
2008
1. Whether plaintiff prove that the
defendant being owner of suit
property have entered into an
agreement of sale of suit property
with plaintiff for consideration of
Rs.600/- per sq feet and executed
an agreement of sale dated
10.11.1997 and supplementary sale
40 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006agreement dated 15.01.1999?
2. Whether plaintiff prove that
defendant No.4 being GPA holder of
other defendant has received
Rs.2,00,000/- as an advance
amount?
3. Whether plaintiff prove that they
have paid totally Rs.39,41,000/- as
part of sale consideration?
4. Whether plaintiff prove that the
defendant have agreed to reduce
the sale value from Rs.600/- to
Rs.350/- per sq. feet as alleged in
para 10 of the plaint?
5. Whether plaintiffs were/ are ready
and willing to perform their part of
contract?
6. Whether plaintiffs are entitled for
specific performance of contract as
prayed for?
7. Alternatively plaintiffs are entitled
for Rs.1,68,00,000/- as
compensation together with future
interest at the rate of Rs.24 p.a
from the date of suit till realization?
8. Whether plaintiffs prove that they
are entitled for compensation as
claimed in para 31(B)(ii) of the
plaint?
9. Whether plaintiffs are entitled for
consequential relief of permanent
injunction as sought for?
41 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
10. What order or decree?
Additional issue framed on 21.01.2021
1. Whether the suit is properly valued
and court fee paid is suffi cient?
Issues framed in O.S.No.4856 of 2006
1. Whether plaintiff proves that the sale
agreements between defendants 1 to
25 in favour of defendant 26 to 31 are
illegal, null and void and not binding
on the plaintiffs?
2. Whether plaintiffs prove that the
defendants are trying to alienate the
suit property illegally?
3. Whether the defendants prove that
the suit is not maintainable, as
alleged in para 21 of written
statement by defendant 1, 9 and
4. Whether defendants prove that the
court fee paid is not proper?
5. Whether plaintiffs are entitled for the
reliefs sought for?
6. What order or decree?
7. Both the suits are ordered to be clubbed
and common evidence is adduced in OS.No.6663 of
2008. In order to substantiate the case of the plaintiffs,
42 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
plaintiff No.1 got himself examined as PW.1 and he has
produced 26 documents. D. Dayanand is examined as
PW.2. Rajshekar Walchand Rathod is examined as
PW.3. Neelakanta Naik is examined as PW.4.
Defendant No.4 got himself examined as DW.1 and he
has produced 7 documents.
8. The learned counsel appearing for the
plaintiffs has argued that O.S.No.4856 of 2006 is filed
to declare sale agreement marked at Ex.P.8 is null and
void. The counsel for plaintiffs has argued that
defendant No.4 is a GPA holder and all the defendants
have signed supplementary agreement of sale dated
15.01.1999. The counsel for plaintiffs has argued that
under agreement of sale dated 10.11.1997 4 th
defendant who is the GPA holder of other defendants
has agreed to sell the property for Rs. 600 per square
feet and received part consideration amount. The
43 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
counsel for plaintiffs has also argued that subsequently
the plaintiffs have paid amount mentioned at back
Page of page No.1 and back page of page No.3 of
Ex.P.1 and totally an amount of Rs.39,00,000/- is paid
under these two agreements dated 10.11.1997 and
15.01.1999. The counsel for the plaintiffs has argued
that by executing Ex.P.2 to 5 receipts defendant No.4
has admitted the receipt of amount and plaintiffs are
having financial capacity to pay the balance amount.
Therefore, the counsel for plaintiffs submits that they
are ready and willing to perform their part of the
contract. The counsel for plaintiffs has argued that as
per agreement of sale, regular Sale Deed is agreed to
be executed after disposal of O.S.No.2273 of 1998 and
RFA NO.147, 148, 148 of 2000 filed by the M. Shankar
Reddy and others which was disposed in January 2008
and as such, suit filed is within the period of limitation
also. Therefore, learned counsel appearing for the
44 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
plaintiffs has argued that Ex.P.8 executed by
defendants in favour of A. Krishnamurthy is void and as
such, the relief claimed in O.S.No.4856 of 2006 is
maintainable. Hence, it is prayed on behalf of plaintiffs
that the plaintiffs by examining the PW.2 to 4 has
proved to execution of suit documents and therefore,
prayed that the suit for specific performance as well as
declaration stating that agreement of sale executed by
defendants in favour of A. Krishnamurthy may kindly be
declared as null and void by granting relief of specific
performance in favour of the plaintiffs.
9. Counsel for plaintiffs has further argued
that if this court for any reason comes to the
conclusion that specific performance of the contract
cannot be granted then plaintiffs have paid an amount
of ₹.39,41,000/- and plaintiffs are entitled for interest
on that amount along with liquidated damages and
45 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
hence an amount of Rs.1,68,00,000/- may kindly be
ordered to be paid to the plaintiffs.
10. Per contra, the learned for the defendants
in the oral arguments as well as in the written
argument contended that defendants have denied the
execution of agreement of sale dated 10.11.1997 and
supplementary agreement of sale dated 15.01.1999
and execution of agreement of sale & receipt of
consideration is not proved. It is further contended by
counsel for the defendants that affi davit of plaintiffs
was filed in O.S.No.5544 of 1996 wherein plaintiffs
have clearly stated that there is no agreement between
plaintiffs and defendants in respect of sale of property
and as such, it cannot be held that the agreement of
sale dated 10.11.1997 and supplementary agreement
of sale dated 15.01.1999 is proved by the plaintiffs.
Learned counsel for defendants has argued that in
46 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
agreement of sale dated 10.11.1997 property was
agreed to be sold for consideration amount of ₹.600
per square feet whereas in the agreement dated
15.01.1999 the consideration amount is reduced to
₹.350 square feet which clearly shows that the nature
of document is not in agreement of sale and no one will
agree to decrease the sale consideration amount.
Therefore, the counsel for the defendants has
contended that the plaintiffs have failed to prove the
agreement of sale dated 10.11.1997 and 15.01.1999.
The learned counsel for defendants has also argued
that there is no material placed on record to show that
plaintiffs have paid an amount of ₹.39,41,000/-.
Therefore, the defendants have contended that
plaintiffs are not entitled for any relief claimed in the
both the suits and both suits be dismissed with cost.
47 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
11. I have considered the oral and
documentary evidence adduced by both the parties to
the suit in light of the arguments advanced before me
and my findings on the above issues are:-
Issues in O.S.No.6663 of 2008
Issue No.1: Defendant No.4 has
executed agreement of
sale dated 10.11.1997 in
favour of plaintiff Vijay
Rathod and defendant
No.1 to 8 have executed
agreement of sale dated
15.01.1999 in favour of
plaintiff NO.1 and 2. As
per agreement of sale
dated 10.11.1997
property was agreed to be
sold at ₹.600 per square
feet
Issue No.2: In the Affi rmative
Issue No.3: Plaintiffs have proved
payment of Rs.13,45,000/-
Issue No.4: In the Affi rmative
Issue No.5: In the Affi rmative
Issue No.6: In the Negative
Issue No.7: Plaintiffs are entitled for
alternative relief of refund
of advance amount
48 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
Issue No.8: Plaintiffs are not entitled
for compensation
Issue No.9: Does not arise for
consideration
Additional issue Suit is properly valued
No.1
Issue No.10: As per final order
Issues in O.S.No.4856 of 2006
Issue No.1: In the Negative
Issue No.2: In the Affi rmative
Issue No.3: In the Negative
Issue No.4: Already decided
Issue No.5: Plaintiffs are not entitled
for the relief claimed
Issue No.6: As per final order,
for the following:-
REASONS
12. Issue No.1 and 2 in O.S.No.6663 of
2008 :- These issues are framed with respect to
execution of agreement of sale dated 10.11.1997 and
15.01.1999 by the defendant NO.4 and other
defendants. This suit is for specific performance of the
contract to enforce Agreement of sale dated
10.11.1997 and 15.01.1999 and hence, the defendants
49 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006have denied the execution of two agreement of sale
which is sought to be enforced. Hence, it is necessary
for the plaintiffs to prove the due execution of
agreement of sale dated 10.11.1997 & 15.01.1999.
13. It is an admitted fact that defendants in
O.S.No.6663 of 2008 are the owners of the suit
schedule property. The plaintiffs claim that defendant
No.4 as a GPA holder of other defendants has executed
agreement of Sale dated 10.11.1997 and other
defendants have also executed supplementary
agreement of sale dated 15.01.1999. Since defendants
have failed to execute the Sale Deed in-terms of these
two agreement of sale, present suit is filed by plaintiffs.
14. In order to establish due execution of Sale
Deed dated 10.11.1997 the plaintiff No.1 Vijay Rathod
got himself examined as PW.1. PW.1 has deposed
50 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006regarding execution of agreement of sale by defendant
No.4, not only on his behalf but also as a GPA holder of
other defendants. The agreement of sale dated
10.11.1997 is not a registered document but it is
attested by two witnesses i.e., R. Sriramulu and one
Neelakanta Nayak. Neelakanta Nayak is examined as
PW.4. PW.4 has deposed that defendant No.4 as a GPA
holder of other defendants has executed the Ex.P.1
agreement of sale and Ex.P.2 receipt for having
received ₹.50,000/- on 23.10.1997. I have perused
cross examination of PW.1 as well as PW.4. There is no
discrepancy in the cross examination regarding
execution of documents by defendant No.4. I have
perused the Ex.P.1 agreement of sale dated 10.11.1997
in detail. It is stated that Papaiah, Rudrappa, R.
Krishnappa, N. Narayana, N. Nagaraja, N. Ramanath, A.
Ananda, N. Giri and Durgamma are the sellers but the
agreement is executed by defendant No.4 who is the
51 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006vendor No.4 as per Agreement of sale. In Ex-P1
Agreement of Sale, it is recited that def.No.4 herein is
Manager of the family and it is stated that other family
members have authorized N. Narayana to sell the
schedule property for and on behalf of them. In the
recitals of Ex.P.1 it is not mentioned that the defendant
No.4 has executed Ex.P.1 agreement of sale as a GPA
holder of other members of the family. In the plaint,
the plaintiffs have pleaded that 4 th defendant as a GPA
holder has executed the Ex.P.1 agreement of sale
dated 10.11.1997. However no GPA is produced for
inspection of this court. It is argued on behalf of
plaintiffs that Ex.P.8 agreement of sale dated 10 th
October 2003 executed in favour of A. Krishnamurthy is
also executed by defendant No.4 only as a GPA holder
and as such, even in the absence of the production of
GPA, it is to be held that defendant No.4 is the GPA
older of other defendants. The argument cannot be
52 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006accepted as in the cross examination it is stated that
as on the date or before Ex.P.1 the other defendants
did not executed GPA in favour of defendant No.4.
Ex.P.8 agreement of sale is executed on 10 th October
2003 i.e., after lapse of 6 years from the date of Ex.P.1.
There is every possibility other defendants have
executed GPA to execute the said document after
Ex.P.1 is executed. So, just because Ex.P.8 is executed
by defendant No.4 as a GPA holder of other defendants,
in my considered opinion this court cannot hold that
there was a valid GPA in favour of 4 th defendant as on
the date of execution of Ex-P1. Under Provisions of
Hindu Law eldest male member is treated as manager
of the family. If ages of the family members mentioned
in Ex.P.1 are considered then Rudrappa S/o Ramaiah
Reddy is the eldest male member of the family. There
is no evidence to show that defendant No.4 N.
Narayana was acting as a manager of the family
53 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
consisting of defendants. Therefore, in my considered
opinion at any stretch of imagination, this court cannot
held that defendant No.4 is the manager of the family
and he has executed the document for and on behalf of
the family. In the absence of GPA showing that the
defendant No.4 was authorized to execute the
document for and on behalf of other persons mentioned
in the document, in my considered view, it cannot be
held that 4 th defendant has executed the document as
a GPA holder. Hence, it is required to be considered
that the defendant No.4 only has executed the
agreement of sale marked at Ex.P.1.
15. As discussed above PW-1 & PW-4 have deposed
regarding execution of document by def.No.4 and there
is nothing in cross examination to disbelieve the
evidence of attesting witness who is retired govt.
employee. So, from the evidence of PW.1 and PW.4 in
54 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
my considered opinion the plaintiffs are able to prove
that agreement of sale dated 10.11.1997 is executed
by 4 th defendant only, but plaintiffs have failed to show
that 4 th defendant was the GPA holder as on the date of
execution of Agreement of sale or acting as a manager
of the family.
16. I have perused the terms and conditions
mentioned in the Agreement of sale dated 10.11.1997.
As per Ex.P.1 property was agreed to be sold for a
consideration amount of ₹.600/- per square feet. Total
consideration amount was fixed at ₹.2,88,00,000/-. It is
mentioned in the agreement of sale that 2 nd party i.e.,
plaintiff No.1 Vijay Rathod has paid an amount of
₹.2,00,000/- to the defendant No.4 N. Narayana
towards advance sale consideration amount. So, from
the evidence of PW.1 and 4 and from recitals of Ex.P.1
the plaintiffs are able to prove that an amount of
55 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
₹.2,00,000/- was paid to defendant No.4 as on the date
of execution of agreement of sale.
17. I have perused the oral evidence of PW.2 and
3 with regard to execution of agreement of sale dated
15.01.1999. Ex.P.6 is agreement of sale dated
15.01.1999. PW.1 as well as PW.2-Dayananda have
deposed regarding execution of Agreement of sale by
defendants. PW.2 D.Dayanand and PW.3-Rajshekar
Walchand Rathod are witnesses to the said documents.
Here also it is mentioned that vendor No.1 to 3 and 5 to
9 are represented by their GPA holder N. Narayana.
However, Papaiah, Rudrappa, Krishanappa, Nagaraj,
Ramanath, Anand and Giri have signed the Agreement
of sale dated 15.01.1999 i.e., to say defendant NO.1 to
8 have signed Ex.P.6 agreement of sale dated
15.01.1999. Though Dayananda and PW.3-Rajshekar
Walchand Rathod are closed relatives of plaintiffs their
56 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
evidence cannot be discorded unless there are
suspicious circumstances surrounding the execution of
Agreement of sale dated 15.01.1999. From the cross
examination nothing has been elicited to say that the
agreement is not executed. The counsel for
defendants are relying upon the affi davit filed by
plaintiffs in O.S.No.5544 of 1996. The said affi davit is
marked at Ex.D.5. I have perused affi davit in detail.
Plaintiff No.1 and 2 herein have filed the affi davit
stating that there is no agreement between plaintiffs
and defendant NO.1 to 8 on 15.01.1999 as alleged by
plaintiffs in O.S.No.5544 of 1996. The plaintiffs herein
have stated that they have surprised to see the such
agreement and contended that plaintiffs of that suit
have created the agreement of sale dated 15.01.1999.
However, it is important to note herein that plaintiffs
have also filed application under Section 151 CPC to
withdraw the affi davit dated 21.02.2000 filed in their
57 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
name and on their behalf and reject the said affi davit,
which is marked at Ex.D.1. In the affi davit filed in
support of Ex.D.1 the plaintiffs have stated that without
the knowledge of the plaintiffs defendant No.4 has
created the affi davit by taking their signatures on blank
paper. The plaintiffs have stated that they shocked to
know that N. Narayana who has obtained signatures on
blank papers stating that same is required by him in
the pending case O.S.No.2273 of 1998 to show that the
property has been encumbered to plaintiffs has
obtained signature and created the affi davit. I.A. filed
under Section 151 CPC for withdrawal the affi davit has
been dismissed by 11 th Addl. City Civil Judge as per
order dated 16.11.2006. However, while rejecting the
affi davit the court has observed that whether signature
of plaintiffs herein was obtained on blank paper and
whether above affi davit is fabricated using blank paper
is to be determined after recording the evidence. It
58 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
was held that prima facie the affi davit cannot be
treated as fabricated and as such, the application for
withdrawal of affi davit was rejected by the court. When
the executants of affi davit have denied the contents of
the affi davit it is for the person relying on the said
affi davit to prove the same.
18. Under Sec.85 of Evidence Act, the Power of
Attorney executed before notary public is having
presumptive value, but other documents executed by
person before Notary is not having any presumptive
value. The plaintiffs have not filed Ex-D5 in
OS.No.5546 of 1996 by personally appearing before the
court, it is def.No.4 herein who has produced the
affi davits along with objections. When plaintiffs have
specifically denied affi davit contending that affi davit is
fabricated, evidence is required to be adduced to
prove the contents of the affi davit. The defendants
59 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
ought to have examined notary public or advocate who
had drafted and identified the parties before notary.
Therefore, in my considered opinion even though
Ex.D.5 is produced as the execution of same is denied
by plaintiffs, it ought to have been proved as any other
documents as observed in order passed on I.A.NO.19
marked at Ex.D.1. So, Ex.D.5 is not proved in
accordance with law. Therefore, in my considered
opinion no reliance can be placed upon Ex.D.5 to say
that there was no agreement between plaintiffs and
defendants. Before filing this suit only the plaintiffs
have made efforts by filing application before 11 th Addl.
City Civil Judge wherein O.S.No.5544 of 1996 was
pending stating that the defendant No.4 herein has
misused the signatures of plaintiffs and created
affi davit. In the said circumstances, Ex.D.5 cannot be
considered to hold that defendants have not executed
the agreement of sale. From the evidence of PW1 to 3,
60 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
in my considered opinion the plaintiffs are able to
prove the due execution of agreement of sale dated
10.11.1997 also. In view of discussion above, the issue
No.1 is required to be answered holding that defendant
No.4 alone has executed an agreement of sale dated
10.11.1997 agreeing to sell the schedule property for a
consideration amount of ₹.600/- per square feet &
received ₹.2,00,000/- whereas agreement of sale
dated 15.01.1999 is executed by defendant No.1 to 8
agreeing to sell the property for a consideration
amount of ₹.350 square feet. Accordingly, issue NO.1
and 2 are answered.
19. Issue No.4:- This issue is framed with respect
to reduction of value of consideration amount from
₹.600 per square feet to ₹.350 per square feet. The
plaintiffs have contended that since there was a
litigation, the value of the property was reduced to
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₹.350 per square feet from ₹.600 per square feet as
agreed in Agreement of sale dated 10.11.1997. As
discussed above execution of Ex-P6 agreement of Sale
is proved & hence terms of agreement is also proved to
the satisfaction of this court. There is no evidence on
behalf of defendants showing that the terms and
conditions mentioned in agreement of sale dated
15.01.1999 is not as per the negotiation. AS per
Section 91 and 92 of Evidence Act, no oral evidence is
admissible contradicting the terms of the written
contract. As per contract, the amount agreed is ₹.350
square feet. Therefore, plaintiffs are able to show that
defendants have agreed to reduce the sale value to
₹.350/- square feet from ₹.600/- per square feet.
Accordingly, issue no.4 is answered in the Affi rmative.
20. Issue No.3:- This issue is framed with respect
to contention of the plaintiffs that they have paid
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totally ₹.39,41,000/- as part consideration amount. I
have perused plaint averments in detail. According to
the plaint averments the plaintiffs claim following
amounts were paid.
Date Amount
10.11.1997 Rs.2,00,000/-
From 23.10.1997 to Rs.19,59,000/-
08.01.1999
12.01.1999 Rs.10,00,000/-
12.02.1999 Rs.7,50,000/-
21. The plaintiffs have also pleaded at Para No.12
that subsequent to sale agreement dated 15.01.1999
some amounts were paid through cheques to defendant
No.4 and also one M. Raj Gopal advocate of defendant
No.4 which are mentioned as under:
Date Cheque bearing NO. Rs.
02.07.2005 76414 Rs.25,000/-
03.08.2005 76419 Rs.50,000/-
03.08.2005 76418 Rs,50,000/-
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24.09.2005 Rs.20,000/-
19.12.2005 (HDFC Rs.12,000/-
bank)0100576
18.06.2005 76413 Rs.25,000/-
26.07.2005 76420 Rs.50,000/-
22. Totally ₹.2,32,000/- was paid on 19.12.2005
and as such, plaintiffs have paid an amount of
₹.39,41,000/-. In order to prove the payment of these
amounts, the plaintiffs have led oral evidence of
plaintiff No.1 and also documents- endorsement in
Ex.P.1, and Ex-P.2, P.4, P.5, 7 receipts. Two account
extract is produced but which is not marked. The
account extract pertaining to State Bank of Mysore
which is maintained by Bank in the ordinary course of
banking business is having presumptive value under
provisions of Banking Regulation Act. Therefore, the
same is considered by this court. As per entry dated
02.07.2005 cheque bearing No.26414 for ₹.25,000/-was
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en-cashed by Narayana. Likewise cheque No.76419 for
₹.50,000/- was en-cashed on 03.08.2005. Cheque
bearing No.76418 was also en-cashed on 03.08.2005
amounting to ₹.50,000/- by N. Narayana-def No.4
herein. Likewise on 24.09.2005 ₹.20,000/- was paid to
Narayana. Likewise an amount of ₹.12,000/- was
stated to be paid by cheque as per Cheque bearing
NO.0100576 but name of defendant No.4 or any other
person is not mentioned in the said account extract.
So, except payment of ₹.12,000/- to defendant No.4
other payments i.e., Rs.25,000/-, Rs.50,000/- and
Rs.20,000/- serial No. 1 to 4 mentioned above is proved
to the satisfaction of this court. So, totally an amount
of ₹.1,45,000/- is paid to defendant No.4 on
02.07.2005, 03.08.2005 and 24.09.2005 after
execution of agreement of sale dated 10.11.1997 and
supplementary agreement of sale dated 15.01.1999
through cheques.
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23. I have also perused the account of extract of
State Bank of Mysore which shows that as per cheque
bearing No.76413 an amount of ₹.25,000/- and as per
cheque No.76420 an amount of ₹.50,000/- was paid to
M. R. Rajagopal as requested by def.No.4. Sri. M.R.
Rajgopal is the advocate of defendant No.4 in the
proceedings. However, this court cannot hold in the
absence of any documentary proof or oral evidence of
independent witness to say that the payment made to
M.R. Rajagopal was for and on behalf of defendant No.4
and is as a part consideration amount. So, the
payment of ₹.75,000/- though shown in the account
extract cannot be considered for and on behalf of
defendant No.4 as there is no material evidence in this
regard. Accordingly, this amount cannot be considered
as part payment of consideration amount.
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24. While answering issue No.1 and 2, I have
concluded that agreement of sale dated 10.11.1997 is
executed by defendant No.4 and under the said
agreement Rs.2,00,000/- is paid to the defendant NO.4.
So, as per Agreement of sale dated 10.11.1997
Rs.2,00,000/- is paid to defendant No.4 and same is
proved. The counsel for plaintiffs has argued that at
page No.2 of the agreement i.e., behind page No.1 the
defendant NO.4 has endorsed that he has received
Rs.2,41,000/- on various dates from 10.11.1997 to
21.02.1998 and on 21.02.1998 Rs.1,00,000/- is paid. It
is important to note here that behind page No.1 there
was a blank paper and amount paid is written in
handwriting. However, endorsement regarding
payment of amount received on 21.08.1998 is typed
and it is stated that 4 th defendant has signed the same.
However, there is no signature of defendant No.4 in
respect of ₹.2,41,000/- said to be paid in cash on
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various dates. If the amount is paid to 4 th defendant
from 10.11.1997 to 21.02.1998 to the tune of
₹.2,41,000/- then the same would have been
mentioned in the typed endorsement stating that
₹.2,41,000/- was paid to him on the various dates. But
in the endorsement dated 21.02.1998 it is shown that
only Rs.1,00,000/- is paid on 21.02.1998. Therefore,
when the defendants have denied the receipt of
amount it was necessary for the plaintiffs to prove the
same. The some of the amount is paid to PW.4-
Neelakanta Nayak who said he in turn paid to
defendant No.4. There is no receipts for these amounts
mentioned in 2 nd page i.e., behind 1 st page of
agreement of sale dated 10.11.1997. So, the serial
No.1 to 16 which is in hand written & not signed by
parties to the suit, cannot be accepted and this court
cannot hold that Rs.2,41,000/- was paid by plaintiffs to
defendant No.4. However, the typed endorsement is
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having signature of defendant No.4 and as such, it can
be held that on 21.02.1998 an amount of ₹.1,00,000/-
was paid by plaintiff- Vijay Rathod to defendant NO.4.
25. I have perused the handwritten endorsement
behind page No.3 of agreement of sale dated
10.11.1997 which is renumbered as page No.5. As per
handwritten endorsements on 26 different dates 4 th
defendant has received an amount of ₹.4,15,000/-. As
discussed above, these handwritten endorsement
behind the page No.3 of Agreement of sale dated
10.11.1997, there is no signature of defendant No.4. A
typed endorsement is at the bottom of the page which
shows that on 29 th October 1998 an amount of
₹.1,00,000/- was paid to defendant No.4 herein.
Therefore, in my considered view, there is nothing to
show that ₹.4,15,000/- was paid on various dates as
mentioned in handwritten endorsement at page No.5 in
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the agreement of sale dated 10.11.1999. But it is clear
from oral evidence & endorsement in Ex-P1 that on
29.10.1998 an amount of ₹.1,00,000/- was paid to
defendant No.4. So, from Ex.P.1 and endorsement in
Ex.P.1 for receiving amount on 21.02.1998 and
29.10.1998 it can be held that under agreement
₹.2,00,000/- was received and thereafter ₹.1,00,000/-
each was received by the defendant No.4 on
21.02.1998 & 29.10.1998.
26. The plaintiffs are relying upon Ex.P.2
endorsement dated 23.10.1997. It is mentioned that
an amount of ₹.50,000/- is received on 23.10.1997 from
plaintiff No.1. It is important to note that this payment
is before agreement of sale dated 10.11.1997. So, this
court cannot hold that ₹.50,000/- is received under
agreement and it is not included in the amount of
₹.2,00,000/- stated in the agreement of sale dated
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10.11.1997. So, the amount said to have been
received under Ex.P.2 cannot be considered as part
consideration amount under Ex.P.1.
27. I have perused Ex.P.3 and P.4. Ex.P.3 and P.4
are receipts dated 29.12.1998 and 08.01.1999. It is
stated that Rs.4,26,500/- and Rs.4,26,500/- is paid
under Ex-P3 & 4. There is no specific pleading in the
plaint that on such a such date the amount is paid to
defendant No.4. No oral evidence is adduced by
plaintiff No.1 to show that the certain amount is paid.
Amount is not paid through cheque when defendants
have disputed the receipt of amount, the plaintiffs
ought to have proved the Ex.P.3 and P.4. On close
perusal of Ex.P.3 its seems that same is materially
altered. In ‘4,26,500/-‘ Number ‘4’ is materially
altered. It seems it was ‘₹.1,26,000/-‘ which is made as
‘4,26,500/-‘ Likewise in the words ‘four’ is overwritten
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on word ‘one’ which can be seen from bare eyes.
Likewise in Ex.P.4 also word ‘four ‘ is over written on
‘one’. If the Ex.P.3 and P.4 are perused by magnifying
glass, then these material alteration made can be
easily found. So, these two receipts cannot be
considered to say that an amount of ₹.4,26,500/- each
was paid on 29.12.1998 and 08.01.1999.
28. I have perused Ex.P.5 the receipt executed by
defendant No.4 on 12.01.1999. It is mentioned that an
amount of Rs.10,00,000/- was received by way of cash
from 1988 till this date. As per records, the plaintiffs
came to know about the property is on sale during
1997 and this document says that from 1988 onwards
amount is paid to 4 th defendant and as on 12.01.1999
an amount of ₹.10,00,000/- was paid to him. In Ex-P5
there is nothing mentioned about any agreement
executed by the defendant. The attesting witnesses
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were not examined to prove Ex.P.5. Even one
Dayananda who is attesting witness to Ex.P.5 is
examined as PW.2 nothing has been stated about
execution of Ex.P.5 in his evidence. Therefore, in my
considered opinion Ex.P.5 also cannot be considered to
say that ₹.10,00,000/- was paid under agreement of
sale dated 10.11.1997.
29. I have perused Ex.P.6 agreement of sale dated
15.01.1999. According to the plaint averments an
amount of Rs.10,00,000/- was paid as per agreement
of sale dated 15.01.1999 which has been acknowledged
under supplementary agreement of sale dated
15.01.1999. I have perused the terms of agreement of
sale dated 15.01.1999 in detail. Terms of contract is
extracted as under:
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2. The vendors herein by acknowledged the receipt
of amount received by them from purchaser on
different dates amounting to Rs.8,00,000/- (Rupees
Eight lakh only) and ₹.2,00,000/- (Rupees two lakh
only) as advance from the second purchaser
towards sale consideration under agreement of
sale mentioned above, totally amounting to
₹.10,00,000/-.
30. It is clear from para No.5 of page No.6 of the
agreement that purchasers at the request of vendors
have spent Rs.8 lakh for the above said purpose and
same has been maintained by purchasers. Payment of
amount is also referred in condition No.2 at page No.8.
So it is clear that Rs.8 lakh referred in para No.5 and
Rs.2 lakh paid under Agreement of sale dated
10.11.1997 is referred in Ex-P6. Under agreement of
sale dated 15.01.1999 additional amount of Rs.10 lakh
is not at all paid as could be seen from the recitals.
Receipt dated 12.02.1999 cannot be considered as an
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acknowledgment of payment of Rs.10,00,000/-.
Therefore, in my considered opinion the contention of
the plaintiffs that additional amount of Rs.10,00,000/-
is paid under agreement of sale dated 15.01.1999
cannot be considered at all. What can be considered
from Ex.P.6 is prior to execution of agreement of sale
dated 15.01.1999 at the request of defendants an
amount of ₹.8,00,000/- was spend by plaintiffs and
₹.2,00,000/- was received under agreement of sale
dated 10.11.1997. So, from the available material
spending of Rs.8,00,000/- was acknowledged by
plaintiffs towards litigations, Rs.2,00,000/- was paid
under agreement of sale dated 10.11.1997. An amount
of ₹.1,00,000/- was paid on 21.02.1998 to defendant
No.4 and ₹.1,00,000/- was paid on 29.10.1999 to
defendant NO.4, Rs.1,45,000/- was paid to defendant
No.4 through cheque as mentioned above. The
plaintiffs specifically pleaded that Rs.7,50,000/- was
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paid on 12.02.1999. The plaintiffs have contended that
the amount is paid in respect of agreement of sale
dated 10.11.1997. The agreement of sale dated
10.11.1997 has been substituted by Ex.P.6 agreement
dated 15.01.1999. So, question of making payment
under Agreement of sale dated 10.11.1997 does not
arise for consideration. Its seems that the amount is
not paid through cheque and no evidence is adduced to
show that ₹.7,50,000/- was paid to defendant No.4.
Therefore, in my considered opinion Ex.P.7 receipt is
also not proved by adducing of evidence. However, an
amount of Rs.8,00,000/- towards expenses as admitted
in agreement of sale dated 15.01.1999, Rs.2,00,000/-
under agreement of sale dated 10.11.1997,
Rs.1,00,000/- each on 21.02.1998 and 29.10.1999 is
proved and payment of Rs.1,45,000/- through cheque is
proved and hence, plaintiffs are able to show that they
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have paid ₹.13,45,000/- to defendants on various dates
mentioned above.
31. Issue No.5:- This issue is framed with respect
to ready & willingness of plaintiffs to perform their part
of the contract. Plaintiffs have stated that they are
ready & willing to perform their part of the contract by
paying the balance consideration amount. Under both
Agreement of sale it is mentioned that the plaintiffs are
required to pay huge part consideration amount. No
documents are produced to show that plaintiffs were
ready with the amount, but it is not in dispute that
plaintiffs are landlords and having capacity to pay the
amount. As per agreement, the Sale Deed is required
to be executed after disposal of suit filed by M. Shankar
Reddy. Suit was disposed by this court on 10.11.1999
only holding that there is no cause of action and plaint
was rejected. However, against that order Shankar
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Reddy and others have preferred RFA No.147 of 2000,
148 of 2000 before Hon’ble High court of Karnataka
which came to be disposed on 21.01.2008. Soon after
the disposal of the Regular First Appeal a notice as per
Ex.P.12 was issued calling upon the defendants to
execute the Sale Deed and the suit is filed immediately
after issuance of reply notice dated 04.08.2008
denying the sale agreement dated 10.11.1997 and
15.01.1999. So, conduct of plaintiffs shows that they
were always ready & willing to get the Sale Deed
executed in their favour by paying balance amount.
Filing of O.S.No.4856 of 2006 in respect of the
agreement of sale executed in favour of third parties
also shows that plaintiffs were vigilant about their
rights and willing to get the Sale Deed executed in their
favour in terms of agreement of sale dated 10.11.1997
& 15.01.1999. Therefore, it has to be held that
plaintiffs are ready and willing to perform their part of
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the contract. Accordingly this issue is answered in the
affi rmative and in favour of plaintiffs.
32. Issue NO.6:- This issue is framed with
respect to the relief of specific performance of the
contract. The Agreement sought to be enforced is
agreement of sale dated 10.11.1997 & 15.01.1999.
The suit is filed on 22.09.2008 the Specific Relief Act is
amended in the year 2018. The said Act came enforced
from 01.08.2018. As per provisions of Specific Relief
act, the discretionary power granted to court has been
taken away as Sec.20 of Specific Relief Act is
substituted. Section 10, 14, 15 and 20 have been
amended. Now, the question for consideration is
whether amendment is prospective or retrospective
and court is still having discretionary power.
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33. In the case Katta Sujatha Reddy v.
Siddamsetty Infra Projects (P) Ltd., reported in
(2023) 1 SCC 355 : 2022 SCC OnLine SC
1079 Hon’ble Apex court has dealt whether 2018
amendment Act is retrospective or prospective and
observed as under :-
57. In the light of the aforesaid discussion, it is clear
that ordinarily, the effect of amendment by
substitution would be that the earlier provisions
would be repealed, and amended provisions would
be enacted in place of the earlier provisions from the
date of inception of that enactment. However, if the
substituted provisions contain any substantive
provisions which create new rights, obligations, or
take away any vested rights, then such substitution
cannot automatically be assumed to have come into
force retrospectively. In such cases, the legislature
has to expressly provide as to whether such
substitution is to be construed retrospectively or not.
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58. In the case at hand, the Amendment Act
contemplates that the said substituted provisions
would come into force on such date as the Central
Government may appoint, by notification in the
Official Gazette, or different dates may be appointed
for different provisions of the Act. It may be noted
that 1-10-2018 was the appointed date on which the
amended provisions would come into effect.
59. In view of the above discussion, we do not
have any hesitation in holding that the 2018
Amendment to the Specific Relief Act is
prospective and cannot apply to those
transactions that took place prior to its coming
into force.
34. Hon’ble Apex Court has held that the amended
provisions are prospective and it was held that 2018
amendment act is prospective and cannot apply to
those transactions that took place prior to its coming
into force. The above decisions was reviewed but the
Hon’ble Apex Court has not unsettled the observation
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regarding applicability of amended provisions Section
10, 14, 15, and 20. On fact it was held that the
findings given in Katta Sujatha Vs. Siddaram Shetty
Infra Projects case is not correct for refusing a specific
performance of the contract. It is clear that under
Section 10, 16 & 20 of Specific Relief Act court can
exercise discretion either to grant specific performance
or to reject specific performance. Hence, this court is
having discretionary power either to grant specific
performance or to reject the specific performance.
35. It is important to note here that Agreement of
sale dated 10.11.1997 is executed only by N.
Narayana-def No.4 herein. The other owners are not
party to the said agreement. Agreement of sale dated
10.11.1997 is executed by N. Narayana as a manager
of family and as per plaintiffs as GPA holder, but GPA is
not produced. It is important to note here that other
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owners i.e., defendant No.1 to 3, 5 to 8 have signed
Ex.P.6 agreement of sale dated 15.01.1999. Defendant
No.9 has not signed the Ex.P.1 or P.6. It is stated that
defendant No.4 is the GPA holder of defendant No.9
also and but GPA is not produced. As discussed above,
it cannot be held that since defendant No.4 has
executed Ex.P.8 he has to be considered as GPA holder
of other defendants. If Ex.P.8 the registered
agreement of sale in favour of A. Krishnamurthy is
considered also then defendant No.9 is not party to
Ex.P.8. So, this court cannot hold that defendant No.4
is the GPA holder of defendant NO.9 and has executed
the documents. When the documents are not executed
by the executant mentioned in the Agreement or all the
owners of the property, the same cannot be enforced
against them. This court cannot partly execute the
agreement against defendant NO.1 to 8 and partly
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reject the agreement of sale dated 10.11.1997 and
15.01.1999.
36. That apart, Section 20 of Specific Relief Act
(unamended) makes it clear that when the court may
properly exercise discretion not to decree specific
performance. Section 20 before amendment reads as
under:-
20. Discretion as to decreeing specific performance.–
(1)The jurisdiction to decree specific performance is discretionary, and
the court is not bound to grant such relief merely because it is lawful to
do so; but the discretion of the court is not arbitrary but sound and
reasonable, guided by judicial principles and capable of correction by a
court of appeal.
(2)The following are cases in which the court may properly exercise
discretion not to decree specific performance:–
(a)where the terms of the contract or the conduct of the parties at the
time of entering into the contract or the other circumstances under
which the contract was entered into are such that the contract, though
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or
(b)where the performance of the contract would involve some hardship
on the defendant which he did not foresee, whereas its non-performance
would involve no such hardship on the plaintiff; or
(c)where the defendant entered into the contract under circumstances
which though not rendering the contract voidable, makes it inequitable
to enforce specific performance.
Explanation 1.–Mere inadequacy of consideration, or the mere fact
that the contract is onerous to the defendant or improvident in its
nature, shall not be deemed to constitute an unfair advantage within
the meaning of clause (a) or hardship within the meaning of clause (b).
Explanation 2.–The question whether the performance of a contract
would involve hardship on the defendant within the meaning of clause
(b) shall, except in cases where the hardship has resulted from any act of
the plaintiff subsequent to the contract, be determined with reference to
the circumstances existing at the time of the contract.
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(3)The court may properly exercise discretion to decree specific
performance in any case where the plaintiff has done substantial acts or
suffered losses in consequence of a contract capable of specific
performance.
(4)The court shall not refuse to any party specific performance of a
contract merely on the ground that the contract is not enforceable at the
instance of the party.
37. As per Section 20(2) the court may exercise
discretion not to decree the specific performance when
the terms of the contract or conduct of the parties at
the time of entering into the contract or other
circumstances under which contract was entered into
though not voidable gives plaintiff unfair advantage of
defendants or defendant entered a contract under
circumstances which though not entering the contract
voidable makes it unequitable to enforce the specific
performance.
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38. It is clear from Ex.P.1 Agreement of sale
dated 10.11.1997 that the sale consideration was fixed
at ₹.600 per square feet. However, after 2 years the
sale consideration amount is fixed at ₹.350 per square
feet. Reason given is addition of amount required was
for meeting litigation expenses. The pleadings clearly
shows that plaintiffs were not willing to give additional
amount, but as the sale consideration amount is
reduced by getting new agreement of sale, they have
given additional amount. The sale consideration
amount is drastically reduced from Rs.2,88,00,000/- to
Rs.1,68,00,000/-, which shows that the circumstances
in which 2 nd agreement was executed when defendants
were under financial distress and as such sale
consideration amount is reduced. So it is clear from
pleadings made by plaintiffs only that they had an
unfair advantage over the defendants.
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39. The plaintiffs are seeking enforcement of both
the agreement of sale. Under one agreement sale
consideration amount is fixed at ₹.600 per square feet
and in other agreement sale consideration amount is
fixed at ₹.350 per square feet. Both are contrary to
each other and both cannot be specifically enforced.
Therefore, in my considered opinion if relief of specific
performance is granted then more hardship will be
caused to the defendants then plaintiffs. The execution
of 2 nd agreement is unfair advantage over defendant.
Therefore, in my considered opinion the relief of
specific performance cannot be granted. Accordingly,
this issue is answered in the Negative.
40. Issue No.7 and 8:- This issue is framed with
respect to entitlement of alternative relief of
Rs.1,68,00,000/- with compensation. While answering
issue No.1 to 5, I have concluded that 4 th defendant has
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executed agreement of sale dated 10.11.1997 and
defendant No.1 to 8 have executed agreement of sale
dated 15.01.1999. I have also concluded that an unfair
advantage was with the plaintiffs over the defendants
when the 2 nd agreement was executed by them and it is
not equitable to grant the relief of specific performance
as under 2 nd agreement, the sale consideration amount
was drastically reduced I.e.., nearly half. Therefore, in
my opinion plaintiffs are entitled for refund of advance
consideration amount paid under these agreement.
While answering issue No.3, I have concluded that
plaintiffs are able to prove that an amount of
Rs.13,45,000/- was paid by plaintiffs to defendant No.1
to 8 under these two agreements. Said amount can be
ordered to be refunded with reasonable interest i.e., at
6% per annum from the date of suit till realization.
Therefore, in my opinion plaintiffs are entitled for
refund of advance consideration amount paid under
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two agreements to the tune of ₹.13,45,000/- only with
interest at the rate of 6% per annum.
41. As far as damages are concerned, this court is
having discretion to award damages. The defendants
have received consideration amount, but now denying
the execution of agreement of sale as well as
consideration. The conduct of defendants shows that
they have willfully denied the transaction. The
plaintiffs have suffered financially due to non-
availability of funds at their disposal. So, at the time of
rejecting relief of specific performance of the contract
court can award damages and an amount of
Rs.5,00,000/- can be awarded as damages for non-
performance of the agreement of sale by the
defendants. Therefore, in my considered opinion the
plaintiffs are entitled for ₹.13,45,000/- towards advance
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consideration amounts and ₹.5,00,000/- towards
damages. Accordingly, this issue is answered.
42. Issue No.1 of O.S.No.4856 of 2006:- This
issue is framed with respect to agreement of sale
executed by defendant NO.1 to 25 in favour of
defendant No.26 to 31. Ex.P.8 is the Agreement of sale
executed by defendant No.1 to 25. The agreement of
sale does not transfer any title to the agreement
holder. There is no dispute with respect to the Ex.P.8
agreement which is registered document and therefore,
in my considered opinion this court cannot hold that
the agreement of sale dated 10.11.1997 is illegal. It is
clear from the clause 8 to 10 of Ex-P6 agreement of
sale dated 15.01.1999 that if any third party offer to
purchase the property for the market price, then
parties are at liberty to dispose off the property jointly
and share the sale proceeds. Hence, defendants had
91 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
right to alienate the property at market price or at
higher rate, but consent of plaintiffs is required for
such alienation. No consent is taken by defendants and
therefore, said agreement is not binding upon the
plaintiffs. But while answering issue No.1 to 8 in
O.S.No.6663 of 2008, I have concluded that plaintiffs
are not entitled for the relief of specific performance of
the contract and hence, declaring the another
agreement of sale as null & void which is in favour of
third party i.e., defendant No.26 to 31 does not arise
for consideration. Therefore, this issue is required to
be answered in the Negative.
43. Issue No.2 in O.S.No.4856 of 2006:- This
issue is framed with respect to casting burden upon the
plaintiffs to prove that defendants are trying to alienate
the property. As per Ex.P.8 defendants have agreed to
sell the property to defendant No.26 to 31 and which
92 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
shows that defendants are having intention to alienate
the property. Likewise Ex.P.9 Mortgage deed also
shows that after agreement of sale defendants have
created charge over the suit property. Therefore, in
my considered opinion, considering these two
documents plaintiffs are able to show that defendants
were trying to alienate the suit schedule property or
create the charge over the suit schedule property.
Accordingly, this issue is answered in the Affi rmative.
44. Issue No.3:- This issue is framed with
respect to contention taken by defendants in
O.S.No.4856 of 2006 stating that plaintiffs are not
entitled to seek for perpetual injunction without filing
suit for specific performance of the contract.
Thereafter, the plaintiffs have filed O.S.No.6663 of
2008 and sought for specific performance of the
contract to enforce agreement of sale dated
93 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
10.11.1997. Hence, the contention does not survive
for consideration. Accordingly, this issue is answered.
45. Additional Issue No.1 in O.S.No.6663 of
2008 and issue NO.4 in O.S.No.4856 of 2006:-
These two suits are clubbed together and additional
issue No.1 and additional issue No.4 framed with
respect to court fee. The plaintiffs have valued the
relief of specific performance at Rs.1,68,00,000/- and
paid the court fee. This court by order dated
21.01.2020 has observed that plaintiffs have claimed
relief under both the Agreement of sale, hence
directed to file fresh valuation slip and pay necessary
court fee. Accordingly fresh valuation slip was filed
and additional court fee of ₹.60,000/- is paid. Offi ce
has also acknowledged the same and the court fee is
paid on the required amount. Therefore, in my
considered opinion under provisions of Karnataka Court
94 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006Fees and Suit Valuation Act court fee is paid on the
relief of specific performance of the contract on
₹.2,88,00,000/- which is in accordance with law.
Hence, the additional issue is answered in the negative
holding that the court fee paid is proper and correct.
46. Issue No.8 in O.S.No.4856 of 2006 and
issue No.9 in O.S.NO.6663 of 2008:- While
answering issue No.1 to 7, I have concluded that
plaintiffs are not entitled for specific performance of
the contract but are entitled for alternative relief of
refund of earnest money with damages. I have also
concluded that agreement of sale executed by
defendant NO.1 to 25 in favour of defendant NO.26 to
31 cannot be declared as void as agreement of sale will
not create any right over the property, but create only
right to get the specific performance only. So, the
relief claimed in O.S.No.4856 of 2006 to declare
95 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
agreement of sale in favour of defendant No.26 to 31
cannot be granted and the defendants who are the
owners of the property also cannot be restrained by
way of perpetual injunction from alienating the
property. Plaintiffs are entitled for alternative relief of
refund of amount i.e., ₹.13,45,000/- towards advance
consideration amount with interest at the rate of 6%
per annum plus damage to the tune of ₹.5,00,000/-.
Therefore, in my considered opinion the plaintiffs are
entitled for the alternative relief of refund of earnest
money and the relief claimed in O.S.No.4856 of 2006
cannot be granted and hence, they are not entitled for
relief claimed. Accordingly, I answered these two
issues.
47. Issue No.6 in O.S.No.4856 of 2006 and
issue No.10 in O.S.No.6663 of 2008:- In view of
the discussions and conclusion arrived at above issues,
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with O.S.No.4856 of 2006
the suit of the plaintiffs at O.S.No.6663 of 2008 is
liable to decreed for alternative relief of refund of
earnest money and damages. Whereas suit at
O.S.No.4856 of 2006 is liable to be dismissed. Hence, I
proceed to pass the following:-
ORDER
The suit of the plaintiffs at O.S.
6663 of 2008 is partly decreed with
costs for alternative relief of refund of
advance sale consideration along with
damages.
It is ordered and decreed that
defendant NO.1 to 8 are liable to pay
an amount of Rs.13,45,000/- [Thirteen
lakh forty five thousand] being
advance consideration amount proved
to be paid to defendants with interest
at the rate of 6% per annum from the
date of filing of the suit till
realization.
It is further ordered and decreed
that the defendant No.1 to 8 are
97 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006liable to pay damages to the tune of
Rs.5,00,000/- [five lakh] to the
plaintiffs.
The relief of specific performance
of the contract is hereby rejected.The suit against defendant No.9 is
hereby dismissed.
The suit of the plaintiffs at
O.S.No.4856 of 2006 is dismissed.
Draw decree accordingly.
(Dictated to the Stenographer Grade-III, transcript thereof
corrected, signed and then pronounced by me, in open Court, on
this the 13th day of June 2025.)(BHAT MANJUNATH NARAYAN)
XLIII Addl. City Civil & Sessions Judge,
BengaluruANNEXURE
I. List of witnesses examined on behalf of plaintiff:-
P.W.1 Vijay L Rathod
P.W.2 D. Dayanand
P.W.3 Rajshekar Walchand Rathod
P.W.4 Neelakanta Naik
98 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006
II. List of witnesses examined on behalf of defendants:-
D.W.1 Narayan N
III. List of documents exhibited on behalf of plaintiff:-
Ex.P.1 Sale agreement, dated
10.11.1997
Ex.P.1 (a) The signature of N.Narayan for
himself as well as power of
attorney holder of other
defendants in Ex.P.1
Ex.P.2 Cash receipt, dated 23.10.1997
Ex.P.3 & 4 acknowledgments
Ex.P.5 receipt
Ex.P.6 agreement, dated 15.01.1999
Ex.P.7 acknowledgment
Ex.P.8 certified copy of agreement of
sale, dated 10.10.2003,
Ex.P.9 certified copy of the mortgage
deed,
Ex.P.10 certified copy of the order sheet
(O.S.No.4856/2006)
Ex.P.11 Certified copy of the judgments
passed in RFAs
Ex.P.12 copy of legal notice
Ex.P.13 9 postal receipts
Ex.P.14 nine UCP receipts
Ex.P.15 postal acknowledgment
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with O.S.No.4856 of 2006
Ex.P.16 eight unclaimed postal
envelopes containing notices
Ex.P.17 reply,
Ex.P.18 rejoinder notice,
Ex.P.19 reply, notice
Ex.P.20 letter issued SBI
Ex.P.21 Khatha extract
Ex.P.22 Order sheet of O.S.No.5544 of
1996
Ex.P.23 Statement of objections filed by
defendant No.1 to 8 in
O.S.No.5544 of 1996
Ex.P.24 C/c of written statement in
O.S.No. 5544/1996
Ex.P.25 C/c of interim application under
Order 39 rule 1 and 2 in
O.S.NO.5544/1996
Ex.P.26 C/c of order sheet in O.S.No.
5544/1996
IV List of documents exhibited on behalf of defendants:
Ex.D.1 Application filed u/Sec.151 CPC in
O.S.No.5544 of 1996
Ex.D.2 Certified copy of the plaint in
O.S.No. 1694/1981
Ex.D.3 Certified copy of the order sheet in
O.S.No.1694/1981
Ex.D.4 Certified copy of the plaint in
O.S.No.5544/1996
100 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006Ex.D.5 Certified copy of the Affidavit
dated:21.02.2000 of the Mr.
Walchand filed in O.S.No.
5544/1996.
Ex.D.6 Certified copy of the application filed
u/sec. 151 of C.P.C. by Vijay L
Rathod on 2809.2006 along with
affidavit.
Ex.D.7 Certified copy of the order sheet
maintained in O.S.No.5544/1996,
containing order passed on
I.A.No.19.
(BHAT MANJUNATH NARAYAN)
XLIII Addl. City Civil & Sessions Judge,
Bengaluru
101 O.S.No.6663 of 2008 clubbed
with O.S.No.4856 of 2006